C7J Cornell University Law Library FROM THE BENNO LOEWY LIBRARY RECEIVED BY CORNELL UNIVERSITY UNDER THE WILL OF MR. BENNO LOEWY •^F S24.C7r'""""'"»»V Library Z*^WC^- The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018806558 A TREATISE LEGAL AND EQUITABLE RIGHTS MARRIED WOMEN; AS WELL IN EESPEOT TO THEIB PROPERTY AND PERSONS AS TO THEIR CHILDREN. WITH AN APPENDIX OF THE RECENT AMERICAN STATUTES, AND THE DECISIONS UNDER THEM. BY WILLIAM H. COED, Esq., OOUNSBLLOE AT LAW. PHILADELPHIA: KAY & BROTHER, 19 SOUTH SIXTH STREET, LAW BOOKSBLLBES, PUBLISHBES, AND IMPOBTEES. 1861. /3v7^^;3 Entered according to the Act of Congress, in the year 1861, by KAY & BROTHER, in the Office of the Clerk of the District Court of the United States in and for the Eastern District of the State of Pennsylvania. PHILADELPHIA : COLLINS, PKINTEB. PREFACE. In most of the United States the legal rights of married women have been materially aflfected by recent legislation, and as every innovation in the law, however wise and needful it may be, soon leads to litigation, the statutes by which these radical changes have been wrought have, of course, been frequently subjected to judicial criticism. Hence it may be safely said that few questions prove more embarrassing to the practising lawyer than those which arise under the enactments intended "to better secure the rights of married wo- men," and yet the subject has been entirely neglected by American text-writers. It is believed, therefore, that the want, which this book aims to supply, is a real one. In the body of the work, the author has endeavored to state accurately and fully the doctrines of the com- mon law and of equity upon the subject, as well as to set forth the more important peculiarities of the reforms introduced in each State: in the appendix will be found the statutes themselves, at length, together with refer- IV PREFACE. ences to the leading cases in which they have been dis- cussed, and, as both the statutes and decisions of the various States are very closely allied, he cannot but be- lieve that to have them thus collated veill prove of use to the profession throughout the vi^hole country. It is with this hope that he respectfully submits the results of his labors to the kind consideration of his readers. CONTENTS. CHAPTER I. Mabbiaoe' SECTION 1-9 CHAPTER II. Antenuptial Contract' 10-30 CHAPTER III. PosTmjPTiAL Contbaots and Settlements' CHAPTER IV. Fraud upon Mabbiagb Conteact' CHAPTER V. Breach of Marriage Contract' 31-85 86-93 94-106 CHAPTER VI. Op Conveyances to Husband and Wife' CHAPTER VII. Contracts between Husband and Wife' 107-114 115-154 CHAPTER VIII. Wipe's Equity to a Settlement out of her own Pbopeety' 155-223 ' See also, for same, Analytical Index, and notes thereto of the same chapter. VI Childken's Equity' Waiver of Settlement' CONTENTS. OHAPTBE IX. CHAPTER X. CHAPTER XI. The Chaeactee and Liability op Wife's Estate, &c. CHAPTER XII. Sepaeatb Estate- chapter XIII. Separate Estate, Continued .... CHAPTER XIV. Incidents op Sepaeate Estates' CHAPTER XV. Geneeal Powee to Convey her Separate Estate, &c.' CHAPTER XVI. How SHE MAY Hold and Acquire Curtesy' Dower' CHAPTER XVII. CHAPTER XVIII. CHAPTER XIX. Dower, in Equity' SECTION 22^242 243-253 254-283 284^305 . 306-386 387^04 405-428 429-437 438-488 489-529 530-539 ' See also, for same, Analytical Index, and notes thereto of the same chapter. CONTENTS. Vii CHAPTER XX. SECTION Dower — Legal Remedy' ..... 540-558 CHAPTER XXI. Alienage bars Doweb' ...... 559-567 CHAPTER XXn. Trust for the Wife's Separate Use' . . . 568-589 CHAPTER XXni. Wife's Gifts ....... 590-618 CHAPTER XXIV. Election ....... 619-670 CHAPTER XXV. Right of Election ...... 671-684 CHAPTER XXVI. Op Powers' ....... 685-746 CHAPTER XXVII. Conversion in Equity ...... 747-759 CHAPTER XXVIII. Wills op Married Women ..... 760-852 CHAPTER XXIX. Wills, Construction op ... . . 853-865 CHAPTER XXX. Construction of Wills, continued .... 866-879 ' See also, for same. Analytical Index, and notes thereto of the same chapter. VIU CONTENTS. CHAPTBB XXXI. SECTION Devastatit ....... 879-890 CHAPTER XXXII. Sbt-ofp ....... 891—898 CHAPTER XXXIII. GuAKDiAN 899-906 CHAPTER XXXIV. Fraud in Sales of the Real Estate of Wife, Infants, &c. 907-914 CHAPTER XXXV. Custody of Infants ...... 915-935 CHAPTER XXXVI. Gbounds for Divorce ...... 936-958 CHAPTER XXXVII. Grounds for Alimony .... 959-969 CHAPTER XXXVIII. Grounds for, and Effect of Lbqislatite Divorces . . 970-976 CHAPTER XXXIX. Lboal Rights and Remedies ..... 977-1017 CHAPTER XL. Parties Plaintiffs to Sue, and Rights of Husband acquired BY THE Marriage ...... 1019-31 CHAPTER XLI. Witness, Wife as ..... . 1032-40 CONTENTS. IX CHAPTBE XLII. SECTION Limitation ........ 1041 CHAPTER XLIII. Bbvivok" ........ 1042 CHAPTER XLIV. Lis Pendens ........ 1043 ' See also, for same, Analytical Index, and notes thereto of the same chapter. APPENDIX. APPENDIX. STATUTES OF THE VARIOUS STATES. Kentucky, and Notes Indiana, and Notes New York, and Notes Pennsylvania, and Notes Illinois, and Notes Ohio, and Notes California, and Notes Tennessee, and Notes Wisconsin, and Notes Texas, and Notes Florida Mississippi Alabama . Louisiana Arkansas . Georgia South Carolina North Carolina Connecticut PAGE 603-646 647-648 649-652 653-690 691-708 709-710 711-712 713-14 I 715 716-718 719-721 722-723 724-727 728-730 731-732 733 734 735 736-737 INDEX TO OASES CITED. A. Section Abbott V. Bayley (6 Pickering, 89) 1006 Adair v. Shaw (1 Soh. & Lefroy, 243) 878, 881 Adams v. Adams et al. (5 Met. 277) 666 Addams v. Heffernan (9 Watts, 530-35) 661 Addison v. Dawson (2 Vernon, 678) 425 V. Bowie (2 Bland, 606, 623) 670 Adlum V. Yard (1 Eawle, 163, 171) 634, 668 Adsit V. Adsit (2 Johns. Ch. 457) 638, 639, 641 V. (2 Johns. Oh. 448) 641, 655, 669 Aguilar v. Aguilar (5 Madd. 414, 418) 369, 377 Albany Fire Insurance Co. v. Bay (4 Gomst. 9) 263 Aleberry v. Walby (§tra. 230) 998 Allan & Ux. v. Vanmeter's De- visees (1 Metcalf, Ky. Bep. 264) 866 Allen V. Everett (12 B. Monroe, 371) 379, 1025 V. Pray (3 Fairfield, 138) 666 Ambler & Ux. v. Norton (4Hen- ning & Munford, 42) 556 American Insurance Co. v. Oak- ley (9 Paige, 259) 910 Ames «;. Ohew (5 Metcalf, 320) 999 Anderson v. Anderson (1 Ed- wards' Chy. 380) 141 Angier v. Angier (Prec. Oh. 496) 129 Sectios Ankerstein v. Clarke (4 T. E. 616) ■ 998 Armstrongs. Toler(6Pet. Cond. E. U. S. 298) 68 Arnet v. Oloudas (4 Dana, 299) 55 Arnold v. Kempstead (Ambler, 466) 653, 656 Arnold's Ex'r v. Arnold's Adm'r (11 B. Monroe, 93) 879 Arnold's Heirs v. Arnold's Ad.' (8 B. Monroe, 204) 516 Arundel v. Short (Oro. BHz. 133) 997 V. Phipps (10 Vesey, 144) 154 Ashton«.MoDougall(5Beav.56) 88 Athey v. Knotts (6 B. Mon. 29) 70 Attorney General v. Jones (3 Price, 368) V. Wallace's 846 Devisees (7 B. Monroe, 611) Aylett V. Ashton (1 My. & Or. 105, 112) B. 458 379 Bailey v. Bamberger (11 B. Monroe, 115) 724 Bailey & ITx. v. Duncan (4 Mon- roe, 256) 507, 1031 Bailey v. Wright (18 Vesey, Jr. 49) 1029 Baker v. Barness (8 Johnson, 73) 140, 151, 152 V. Hall (12 Vesey, 497) 198 Baker & Ux. v. Brereman (Oro. Oar. 418) 995, 998 Balker v. Cooper (7 Serg. & Eawle, 500) 139. BLA INDEX TO CASES CITED. BUL 61 965 386 Bank of Alexandria v. Patton (1 Robinson, Virginia, 500) Bank's Adm'r v. Marksberry (3 Littell, 282) 986, 990, 1030 Banton v. Campbell's Heirs (9 B. Monroe, 596)' 112, 114 Barker v. Lea (6 Madd. 330) 242 Barlow v. Bishop (1 East, 432) 1008, 1011 Barnes v. Hurd (11 Mass.- Kep. 59) 996 Bamett v. Shackleford (6 J. J. Marshall, 533-4) 420 Barrere v. Barrere (14 Johnson Ohy. Eep. 187) 940, 945 Barton v. Campbell's Adm'r (9 B. Monroe, 594) 580 Basham v. Chamberlain (7 B. Monroe, 446) 190 Bates V. Sohraeder (13 Johnson, 260) 481 V. Dandy (2 Atk. 206) 200, 287 Beach v. Beach (2 Hill, 260-64) 135 Beaver v. Lane (2 Mod. 217) 998 Beeby v. Beeby (1 Hagg, 789) 134 Bell V. Bird (Sir G. Lee's Eocl Oases, vol. i. 209) BeU V. Hyde (Free. Chy. 330) V. Mayor of N. Y. (10 Paige, 67) 493, 505 Bell & Terry v. Kellar (13 Ben. Monroe, 384) 355 Bennett v. Davis (2 P. Williams, 316) 367, 574, 714 Benning v. Benning's Bx'r (14 B. Monroe, 587) Berry et al. v. Graddy, Adm'r (1 Metcalf, Ky. 553) Bertheiemy v. Johnson (3 Ben, Monroe, 90) Betts V. Kimpton (2 B. & Ad, 273) Bevor v. Bevor (3 Add. 67) Bidgood V. Way & Ux. (2 Wm, Black, 1237) 991, 997 Billing V. Pilcher & Hauser (7 B.Monroe, 458) 963,965,985,1016 Bixler v. Taylor (3 B. Monroe, 362) 395 Blackburn v. Pennington (8 B. Monroe, 219) 416, 728, 730 Blackwell v. Blackwell (9 B. Monroe, 412) 245 Blair v. Dade's E'x (9 B. Mon- roe, 61) 432 Blandin v. Blandin (9 Vermont, 210) 816 [Xii] 879 893 970 290 965 Blood V. Blood (23 Pickering, 80) 481 Boggess V. Boggess (4 Dana, 307) 960 Boggetti;. Frier (11 Bast, 303) 1006 Bonn V. Headley (7 Harr. & Johns. 257) 999 Bolton V. Williams (2 Vesey, Jr., 138) 325, 369 Bosvil V. Brander (1 P. Wil- liams, 460) 158 Bourne v. Mattaire (Bull. N. P. 53) 992 Bowling & Boucher v. Wins- low's Ad'm (5 B. Monroe, 31) 218 Bowmar v. Shipp (5 B. Mon- roe, 165) 362 Boyce v. Waller (9 Dana, 482) 113 Bradish v. Gibbs (3 J. 0. E. 523) 17, 795, 796 Breckinridge v. Coleman (7 B. Monroe, 333) 349, 1017 Bridges v. Wood (4 Dana, 610) 571, 572, 573 Briggs V. Andrews (5 Simons', 424) 748 Brothers v. Porter (6 B. Mon- roe, 110) 395 Brown v. Alden (14 B. Monroe, 141) 204, 379, 1025, 1029 V. Caldwell (1 Speer's Eq. 322, 325) 639, 650 V. Carter (5 Vesey, Jr. 862) 25 ^ V. Higgs (4 Vesey, 708) 756 - V. Higgs_ (8 Vesey, 574) 746 V. Pocock (6 Sim, 257) 758 V. Stark (3 Dana, 316) 728 Brown's Adm'r v. Langford, Adm'r (3 Bibb. 499) 990 Browning's Adm'r v. Coppage (3 Bibb. 37) 153, 280 Brownwell v. McEwen (5 Denio, 367) 106 Buckle V. Mitchell (18 Vesey, 111) 61. Buckley v. Collier (1 Salkeld, 114) 991, 997 Duckworth v. Thirkell (3 Bos. & Puller,'652, n.) 442, 443 Buford's Heirs v. McKee (1 Dana, „ 107) 83 Bull V. Church (5 Hill, N. Y. ■ 206) 663, 664 BuUard v. Briggs (7 Pickering, 533) 31, 35, 36, 37, 85, 489, 529 CAR INDEX TO CASES CITED. COL BuUer v. Waterhous (3 Keble, 751) 16 BuUpin V. Clarke {17 Vesey, 365) 321, 368, 379 Burch «fe Ux. V. Breckenridge (16 B. Monroe, 488) 359, 378, 379 Burchett v. Durdant (Skinn. 205) 862 — V. Durdant (2 Vent. 311) 469 Burden v. Dean (2 Vesey, Jr. 607) 185 Burgen v. Chenault (9 B. Mon- roe, 287) 675 Burke v. Winkle (2 Serg. & Eawle, 189) 1005 Burks V. Shain (2 Bibb. 341) 98 Burn V. Winthrop (1 Johnson's Chy. 329) 84 Burnett v. Kinnaston (2 Ver- non, 401) 202, 286 Burnham v. Cornwell (16 Ben. Monroe, 287) 1, 94, 99 Burr V. Burr (1 Paige, 20) 134 Burroughs v. Phileaux (1 My. & Cr. 72) 746 Burton v. Pierpont (2 P. Wil- ' liams, 78) 79, 612 Butler V. Ayres (1 Leon, 92) 543 V. Butler (4 Littell, 203) 938, 959, 960 Bybee v. Tharp & Ux. (4 Ben. Monroe, 323) 888, 987 0. Cabell V. CabeU (1 Metcalfs Ky. Eep. 326) 970 Caldwell v. Williams (1 Bailey's Bq. 175) 85 V. Drake (4 J. J. Mar- shall, 247) 1016 Calkins v. Long (22 Barbour's N.Y.S.C. Kep. 98) 132,152 Campbell v. Rawdon (4 Smith's N. Y. Eep. 412) 853 Carleton v. Earl of Dorset (2 Vernon, 17) 92 Cannel v. Buckle (2 P. Williams, 243) 154 Can- V. Estill (16 B. Monroe) 484, 698 V. Taylor (10 Vesey, 574) 891 Carson v. Murray (3 Paige, 483) 135, 141, 142 Cart V. Reese (1 P^ Williams, 381) 204, 289, 1020 Carteret v. Paschal (3 P. Wil- liams, 197) 200, 287, 1007 Carter v. Thomas (4 Greenl. 341) 816, 818 Carroll v. Blencow (4 Esp. E. 27) 1005 V. Connet (2 J. J. Mar- shall, 199) 1016 Carroll's Heirs V. Carroll's Heirs (12 B. Monroe, 642) 879 Carleton v. McEnzie (10 Vesey, 442) 386 Caston V. Caston (2 Richardson Eq. 1-2) 663, 669 Cathcart v. Eobinson (5 Peters; 265) 61, 66 Chambers v. Lord Rodney (2 East, 283) 121 Champion v. Cotton (17 Vesey, 263) 1014 Champlin v. Champlin (1 Hoff- man, Chy. Rep. 55) 141 Chandler v. Woodward (3 Har- rington, 428) 667 Chappel V. Avery (6 Conn. 31) 663 Charnley ■;;. Winstanley (5 East, 266) 814 Chester v. Piatt (1 V. & B. 334) 369 Christler's Ex'ors v. Meddis' Admr. (6 B. Monroe, 37) 398 Church V. Bull (2 Denio, 430) 663 Churchill v. Dibben (2 Kenyon's Eep., part 2, 68) 366 City of Louisville v. Bank of U. States (3 B. Monroe, 153) 391 City of Philadelphia v. Davis (1 Wharton, 490) 630, 632 Clary v. Marshall (5 B. Monroe, 269) 53, 898 Clarke v. Underwood (17 Barb. N. Y. S. C. Eep. 218) 901 V. McCreary (12 Smedes & Marsh, 347) 291 Clay & Craig v. Hart (7 Dana, 16) 669, 681, 684 Clerk V. Miller (2 Atk. 379) 359, 369 Olough V. Bond (3 My. & Or. 490) 878 V. Lambert (10 Sim. 174) 133, 145 Oockel V. Phips (1 Dick. 391) 227, 231 Cole V. Pell (2 J. P. Metcalfs Ky. Rep. 252) 70 Coleman et al. f. Coleman (3 Dana, 486) 50 [ xiii ] DAL INDEX TO CASES CITED. DOB Coleman v. Cottingham {8 Carr & P. 75) 98 V. Waples (1 HarriDgton 196) 91 V. Wooley (10 Ben. Monroe, 320) 350, 356 Oollenwood v. Pace (1 Vent. 422) 564 Collins V. Carlisle's Heirs (7 B. Monroe, 14) 694, 701, 755, 758 V. Champ's Heirs (15 B. Monroe, 122) 680 Colvin V. Currier (22 Barbour N. Y. 387) 255, 258, 334, 339 Conn. V. Wilson (2 Overton's Eep. 233) 103 Cooke V. Wiggins (10 Vesey, 191) 120, 129, 147 Coons V. Nail's Heirs (4 Littell, 264) 515 Cordwell v. McKrill (Amb. 515) 93 Corsellis v. Corsellis (Bull. N. P. 117) 547 Cotton V. King (2 P. Williams, 359) 92 Cox V. Coleman (13 B. Monroe, 451) 204 Cracraft & Ux. v. DUle (3 Yates, 79) 663 Craig V. Leslie (3 Wheaton, 563) 208 V. Payne (4 Bibb. 337) 432 Crane v. Crane (17 Pickering, 422) 666 Craven v. Craven (2 Devereux, 338) 665 Oreuze v. Hunter (2 Cox's Cas. 242) • 921 Crooks V. Turpin (10 Ben. Mon- roe, 244) 161, 189, 215 Orostwaignt v. Hutchinson (2 Bibb. 407) 153, 279 Crozier v. Bryant (4 Bibb. 174) 993 V. Gano (1 Bibb. 259) 993 Cruger v. Jones (18 Barbour, 467) 283 Culver V. Culver (8 Ben. Mon- roe, 129) 153, 429 Curtis V. Bngel (2 Sanford, Chy. Eep. 287) 330, 339 D. Dailey v. Shirley (3 Dana, 619) 907 Dale V. Williamson (3 John N. Y. Chy. 290) 907 [xiv] Dale V. Shirley (5 Ben. Monroe, 494) 907 Daniel v. Bowles (2 Carr. & Payne, 553) 101 V. Eobinson (18 Ben. Monroe, 304) 260, 361, 362, 363, 410, 411 V. Thompson (14 B. Mon- roe, ^62) 459 Daniel & Ux. v. Daniel (6 B. Monroe, 230) 389 Dartmouth College v. Wood- ward (4 Wheaton, 518) 6, 970 Dash V. van Kleeck (7 Johnson, 477) 300, 529 Davison v. Davison (3 Green, 235) 664 Davis V. Logan's Heirs (5 Ben. Monroe, 343) 47 V. Tingle (8 Ben. Monroe, 543) 246 Dawson v. Hayes (1 Metcalf's Ky. Eep. 460) 681 D'Aguilari;. D'Aguilar (1 Hagg, 773) 134 Dean's Heirs v. Mitchell's Heirs (4 J. J. Marshall, 451) 507 Decouche v. Savetier et al. (3 Johns. Chy. Eep. 190) 12 De Gaillon v. L'Aigle (1 Bos. & Pull. 357) 1005 De Gray v. Eichardson (3 Atk. 469) 481 Dejamet v. Dejarnet (5 Dana, 500) 960, 961, 969 De La Garde v. Lempriere (6 Beav. 344) 235 Delay v. Vinal (1 Metcalf, 57) 666 De Manneville v. De Manneville (10 Vesey, 52) 921 Demarest v. Wynkoop (3 John- son Chy. Eep. 129) 415 Dennis v. Warder (3 Ben. Mon- roe, 173) 727 Dennison v. Goehring (7 Barr. 175) 81 Denton v. Nanney (8 Barb. 620) 489, 506, 524 Dickernan v. Abrahams (21 Barb. 551) 339 Dix V. Brooks (1 Strange, 61) 997 Dobson v. Dobson (Hardwickes' Eep. 19) 546 Doe V. Martin (4 Term Eep. 39) 16 V. James (16 East, 212) 61 V. Jones (4 T. E. 300) 565 ELL INDEX TO CASES CITED. FEB Doe dem. Hodsden v. Staple (2 T. R. 684) 807, 809 Donellan v. Bead (3 B. & Adol. 899) 895 Donnelly v. Donnelly (8 B. Mon- roe, 116) 9, 548, 549 Dorchester v. Coventy (11 John- son, 519) 557 Dorsey v. Goodenow (Wright, 120) 964 Dorsey's Heirs v. Dorsey (7 J. J. MarshaU, 156) 153 Douglas V. Cooper (3 M. & K. 381) 807 Dowling V. Maguire (Lloyd & Goold, Eept. temp. Plunkett, 19) 369 Doyle V. Sleeper (1 Dana, 534) 60, 73, 74 Doyley v. White (Gro. Jac. 323) 1012 Draper v. Fulkes (1 Yelverton, 166) 997, 1011 V. Jackson (16 Mass. 480) 999 Drue V. Thorne (Aleyn, 72) 1010 Drnry v. Smith (1 P. Williams, 404) 847 Dubois V. Hole (2 Vernon, 613) 154, 386 Dnmarsely v. Fishley (3 Mar- shall, 371} 2, 5, 549 Duncan v. Dodd (2 Paige, 101) 911 Duncan v. Duncan's Ex'or, (2 Teates, 302) 661, 668 Dunham v. Osborne (1 Paige, 634) 481 Dyett V. North American Coal Co. (20 Wendell, 575) 778 E. Earl of Salisbury v. Newton (Eden's Ch. Cases, 370) 164, 177, 184 Ebersall v. Krug (3 Binney, 555) 1012 Edrington v. Harper (3 J. J. Marshall, 360) 50 Edwards v. Bishop (4 Comst. 61) 857 Bedes v. Eedes (11 Simon, 569) 158 Blibank v. Montolieu (5 Vesey 737) 158, 230, 233, 891 ElUott V. Collier (3 Atk. 526) 204, 290 Emmons v. Overton (18 B. Monroe, 649) 328 Enders v. Williams (1 Metoalf s Ky. Eep. 346) • 20, 58, 64 Essex V. Atkins (14 Vesey, 542) 367 Estill V. Port (2 Dana, 238) 1011, 1017 Evans v. Webb (1 Yeates, 424) 663 Ewing's Heirs v. Handley's Ex'rs (4 Littell, 349) 112, 1030 Ewington v. Gardner (1 Selw. N. P. MS. 297) 1012 P. Palmouth Bridge Co. v. Tib- batts (16 Ben. Monroe, 637) 416 Pauntleroy's Heirs v. Crow's Heirs (5 B. Monroe, 138) 730 Fenner v. Taylor (1 Sim. 169) 240 . V. Taylor (2 Euss. & My. 195) 242 V. Lewis (10 Johns. 44) 151 Fettiplace v . Gorges (1 Vesey, Jr. 46) 366, 773, 788, 803, 1029 Pible V. Caplinger (13 B. Mon- roe, 464) 2, 98 Field V. Sowle (4 Euss. 112) 379 Pindley & Ux. v. Patterson, Ex'or (2 B. Monroe, 77) 394 Finley v. Pinley (9 Dana, 52) 939, 959 Pightmaster v. Beasley (1 J. J. Marshall, 606) 995 Pish V. Klein (2 Mer. 432) 565 Pitch V. Ootheal (2 Sand. Chy. 29) 522 Pitzer V. Pitzer (2 Atk. 511) 120, 128, 145, 146 Fleming v. Fleming (MSS. Opin. C. A. Ky. June 12, 1856) 46 Fletcher v. Peck (6 Cranch, 135) 66 V. Fletcher (2 Cox, 99) 129 Flint V. Spurr (17 B. Monroe, 516) 737 Porsythe v. Kreakbaum (7 Mon- roe, 97) 58 Poster V. Cook (3 Bro. 0. C. 347) 655 Ponrdrin v. Gondry (3 M. & K. 401) 565 Francis v. Wigzell.(l Mad. 258) 377, 379, 718 Free Frank v. Denham's Admr. (5 Littell, 330) 9 [ZV] GOE INDEX TO CASES CITED. GWI Fuller V. Yates (8 Paige, 325) 647 Fultz & Ux. V. Fax (9 B. Mon- roe, 500) 1016 G. Gaines v. Gaines (9 B. Monroe, 308) 970, 972, 974 Galbraith v. Gedge (16 B. Mon- roe, 634) 511 Gallego V. Gallego (2 Brock, 286) 294 Gardner v. Gardner (22 Wend. 526) 261, 332, 339 Gardner v. Hooper (3 Gray, 398) 999 Garforth v. Bradley (2 Vesey, Sen. 675) 285, 289 Garrett v. Gault (13 B. Monroe, 380) 887 Garton's Heirs v. Bates (4 B. Monroe, 367) 508, 514, 542 Gaters v. Madeley (6 Mees. & Welsby, 427) 997 Gault & Ux. V. Trumbo (17 B. Monroe, 682) 92 Gawden v. Draper (2 Ventris, 217) 121 Gazynski v. Oolburn (11 Gush- ing, 10) 1012 Gedges & Ux. v. W. Bab. Theo. Institute (13 B. Monroe, 535) 416 George of Color v. Bussing (15 B. Monroe, 563) 760 Gibson v. Todd (1 Rawle, 455) 999 Gill & Simpson v. Fauntleroy's Heirs (8 B. Monroe, 185) 416, 726, 728, 1041 Gill's Heirs v. Logan's Heirs (11 B. Monroe, 233) 391 Gilleland, Ex'or, v. Failing (5 Denio, 308) 151 Girard v. City of Philadelphia (4 Rawle, 320) 820 Girard's Heirs v. City of Phila- delphia (2 Wall. 301) 816 Glaister t). Hewer (8 Vesey, 195) 80 Glenn v. Glenn's Bx'rs (7 Mon- roe, 287) 959, 1031 Godell V. McAdam & Ux. (14 Howard Pr. Bep. 383) 339 Goldsmid v. Goldsmid (1 Swan- ston, 211) 123 Gordon's Adm'r v. Stevens (2 Hill's Chy. 46) 645 Gore V. Knight (2 V ernon, 535) 803 [xvi] Gore V. Stevens (1 Dana, 204) 676 Goring v. Nash (3 Atk. 186) 82 Golden v. Maiipin (2 J. J. Mar- shall, 241) 514 Gowerv.Mainwarring (2 Vesey, 87) 741, 742 Graham v. Dickinson (3 Barb. Chy. 178) 505 Graves, &c. v. Downey (3 Mon- roe, 356) 1017 Gray v. Kentish (1 P. Williams, 459, note) 183 Greatley v. Noble (3 Mad. 94) 369, 372 Greatorex v. Carey (6 Ves. 615) 655 Green v. Otter (3 B. Monroe, 103) 388, 389 V. Putnam (1 Barb. Sup. C. Eep. 506) 481 Greene v. Spencer (3 Miss. Eep. 318) 103 Greer's Heirs v. Boone (5 B. Monroe, 557) 223, 224 Gregory v. Lockyer (6 Mad. 90) 379 V. Paul (15 Mass. 31) 1005, 1006 Gregory's Heirs v. Ford (5 B. Monroe, 471) 727, 728 Griffin V. Griffin (8 B. Monroe, 120) 959 Griffith V. Eicketts (7 Hare, 299) 748 Griffith's Adm'r?;. Griffith (5 B. Monroe, 116) 568 Griggs V. Staples (13 Iredell, 32) 88 Grigsby v. Cox (1 Vesey, 518) 367, 773 Grigsby, &c. v. Breckinridge (12 B. Monroe, 632) 583 Griswold V. Penniman (2 Conn. E. 565) 1008 Grosvenor v. Lane (2 Atk. 180) 226 Groves v. Clarke (1 Kee, 132) 233 • V. Perkins (6 Sim. 584) 233 Gully V. Eay (18 B. Monroe, ^ 113) 507, 508 Guth V. Guth (3 Brown, 614) 119, 145, 146 Guttridge v. Stilwell (1 Mylne & Keene, 486) 1028 Guy V. Livesey (Cro. Jac. 502) 998 Gnyton v. Shane & Ux. (7 Dana, ^498) '394 Gwilhm V. Gwillim (5 B. & Adol. 129) 868 HAY INDEX TO CASES CITED. tlOY H. Hall«.Hall(2Bland;i30— 135) 624 V. (2 MoOord Ohy. 269) 630, 669 Hall V. Sayre (10 Ben. Monroe, 46) 113 Halloway v. Conner's Heirs (3 B. Monroe, 397) 248 Hamaker v. Hamaker (18 111. Eep. 137) 944 Hamilton v. Hughes (6 J. J. Marshall, 582) 507 V. Buckwater (2 Yeates, 389) 663 Hannan v. Osborne (4 Paige, 342) 483 Hanson, &c. v. Power (8 Dana, 91) 67, 68 Hanson v. Keating (4 Hare, 6) 158 Harden & Ux. v. Smith's Exr's (7 Ben. Monroe, 392) 50, 248, 246 Hardesty v. Jones (10 Gill & John. Md. 404) 895 Harding v. Glyn (1 Atk. 469) 746 Harris v. Calvep (9 B. Monroe, 365) 365, 657, 990 V. Jones (6 Ben. Monroe, 389) 542 Harrison v. Harrison (2 Gratt. 1) 758 Hart V. Soward (12 B. Monroe, 391) 885, 1019, 1023, 1025 V. Thompson's Adm'r and Heirs (3 B. Monroe, 488) 715 Harvey v. Harvey (1 P. Wil- Uams, 125) 825 V. Olmstead (1 Comst. 483) 857, 859 Havens v. Havens k al. (1 San- ford, Oh. Eep. 325) 650, 662 Haviland v. Bloom (6 Johnson Ohy. 181) 156 Hawes v. Humphrey (9 Picker- ing, 350) 816, 817 Hawk & Ux. V. Harman & Ui. (5 Binney, 43) 1012 Hawkin's Adm'r v. Craig & Ux. (6 Monroe, 257) 1031 Hawley v. Bradford (9 Paige, 200) 522 Hawley v. James (5 Paige, 466) 473, 477 Hayes v. Kershow (1 Sanford, 258) 84 V. Blanks (7 B. Monroe, 348) 156 B Hayward v. Hayward (20 Pick- ering, 517) 999 Head & Ux. v. Fox (16 B. Mon- roe, 117) 509 Head v. Head (3 Atk. 547) 129, 147 Headen & Ux. v. Kosher (Mc- Oleland & Young, 89) 773, 803 Hearle v. Greenbank (1 Ves., Sen., 303), 226, 773 Heatley v. 'Thomas (15 Vesey, 596) 321, 330, 379, 770 Hedger v. Ward (15 B. Monroe, 116) 729 Hedges v. Hedges (Prec. in Ohy. 269) 847 Henderson v. Stringer (2 Dana, 292) 1016 Hendrin v. Oolgin (4 Munford, 231) 886 Hennrag v. Conner (2 Bibb. 190) 278 Henry's Heirs v. Gonterman (1 Met. Ky. Eep. 465) 695 Herbert v. Herbert (Prec. in Ohy. 44) 803 V. Wren (7 Oranch, 370) 639, 649, 651 Hill V. Golden (16 B. Monroe, 554) 47 V. Manpin (3 Miss. Eep. 323) 103 Hilliard'!). Binford (10 Alabama, 977) 666 ■;;. Hambridge (Alleyn, 36) 203, 998 Hobbs V. Blandford (7 Monroe, 469) 8fi, 92 Hodgens v. Hodgens (11 Bligh, N. S. 104) 232 Hodsden v. Lloyd (2 B. 0. 0. 534) 809 Holbrook v. Armstrong (18 Maine, 31) 895 Holdich V. Holdich (2 Young & Collier's, 18) 656 Holmes & Ux. v. Hill (2 Wills, 424) 997 Holmes v. Holmes (4 Barb. 295) 305 Honeyman v. Campbell (5 Shaw & Weston, 144) 97 Honner v. Morton (3 Euss. 65) 288 Hord V. Hord (5 Ben. Monroe, 83) 58, 204, 248, 415 Hore V. Becher (12 Simons, 465) 154 Howard v. Hooker (2 Ohy. Ee- ports, 81) 92 Hoy, &c. V. Eogers, &c. (4 Mon- roe, 226) 1031 [ xvii ] JOH INDEX TO CASES CITED. LAM Hudnal v. Wilder (4 McCord, 295) 61 Hulme V. Tenant (1 Bro. 0. 0. 20) 324, 335, 347, 365, 367, 368, 376, 378 Humphrey v. Bnllen & Ux. {1 Atk. 458) 884 Humphrey v. Phinney (2 John- son's Eep. 484) 557 Hunt V. Dupuy (11 Ben. Mon- roe, 286) 34, 434 Hurd V. Oass (9 Barbour, 366) 305, 712, 713 Husband v. Pollen (1 Peer Wil- liams, 75) 82 Hyde v. Syssor (Cro. Jac. 538) 998 I. Iron V. Divine (7 Monroe, 246) 1031 Isenhart v. Brown (1 Edwards, Oh. Kep. 416) 667 Jackson v. Churchill (7 Oowen, 287) 664 V. Edwards (7 Paige, 386) 496, .503, 504 V. Hilton (16 Johnson, 96) 481 — V. Ireland (3 Wendell, 99) 816 ^. Johnson (5 Oowen, 74) 481 V. Winne (7 Wendell, 47) 475 Jacques v. Methodist E. Church (17 Johnson, 548) 261, 310, 312, 362, 406, 411, 587, 717, 788 Jarman v. Wilkerson (7 B. Mon- roe, 293) 347, 357 Jarvis & Trabue v. Qnigley (10 B. Monroe, 104) ' 458 Jee V. Thurlow (2 Barn. & Cr. 547) 137, 138 Jenkins v. Jenkins's Heirs (2 Dana, 103) 548 Jewell's Lessee v. Jewell (17 Peters, 243) Jewson V. Moulson (2 Atk. 417) 175, 181 Johnson & Ux. v. Green (17 B. Monroe, 118) 57, 248 V. Jones (12 B. Monroe, 333) 57, 255, 722 Johnson v. Johnson (1 J. & W. 472) 230, 234 Johnson's Trustees v. Yates (9 Dana, 500) 408 Johnstone i^.Lumb (15 8im, 308) 379 Jones V. Collier (Ambler, 730) 653 V. Harris (9 Vesey, 486) 325, 377, 379 V. Hartley (2 Wharton, 103) 819, 820 V. Henry (3 Littell, 433) 29, 52 V. Johnson & Ux. (12 B. Monroe, 331) 418 — -■ — V. Powell (6 Johnson's Chy. 194) 664 V. Selby (Prec. Chy. 300) 829, 847, 850 Jones's Adm'r v. Warren's Adm'r (4 Dana, 333) 989 K. Kelly's Devisees v. Kelly (5 B. Monroe, 372) 731, 761 Kemp V. Kemp (5 Vesey, 849) Kendall v. Honey (5 Monroe, 283) 512, 514 Kenge v. Delavall (1 Vernon, 326) 373, 379 Kennedy v. Mills (13 Wend. 553) 664 V. Nedrow (1 Dallas, 415) 650 Kenney v. TJdall (5 Johnson's Chy. 464) 155, 164, 165, 167, 175, 185 Kent V. Kent (Stra. 976) 546 Keyworth v. Hill (3 Barnw. & Aid. 685) 1010 Kidney v. Coussraaker (12 Ve- sey, 136) 633, 635 King's Ex'r v. Hanna (9 B. Monroe, 370) 894 Kinnard v. Daniel (13 B. Mon- roe, 500) 11, 29, 51, 52, 55, 93 Kinnard's jEx'or v. Williams's Adm'i- (8 Leigh, 400) 669 Kinsolving v. Pierce (18 B. Monroe, 785) ■ 511 Kinsey et al. v. Woodward (3 Harrington, 450) 646 [ xviii ] L'Amoreux v. Vanrensalaer (1 Barb. Chy. 37) 308 LOW INDEX TO OASES OITED. MOL Lancaster v. Dolan (1 Eawle, 231) 804 Langhamt).Bewett(Oro. Jac.68) 999 Larabee & Ux. -v. V an Alstyne (1 Johnson's Ohy. 307) 664 Lavender v. Blackstone (2 Le- vintz, 146) 40, 41 Lawson v. Morton (6 Dana, 472) 509, 557 V. Lawson (1 P. W. 441) 823, 847 Lay's Ex'o"rs v. Brown (13 B-. Monroe, 295) 217 Lea V. Minna (Yelverton, 84) 997 V. Priceaux {3 Bro. C. C. 381) 825 Lechmere v. Carlisle (3 Peer Williams, 218) 213 Lee V. Lee's Bx'r (1 Dana, 48) 516 — - V. Waller (3 J. P. Metcalf) 879 Lefevre v. Laraway (22 Barb. Eep. 173) 908 Legard v. Johnson (3 Vesey, 361) 120, 145 Leonard v. Crommelen (1 Ed- wards, 206) 669 Lewis V. Babcock (18 Johnson's Eep. 443) 996 V. Love's Heirs (2 B. Mon- roe, 345) 62, 65 Like V. Beresford {3 Vesey, 506) 178, 202, 386 LUlard v. Turner (16 B. Mon- roe, 376) 358 Lillia V. Airey (1 Vesey, Jr. 278) 154, 368, 374 Livingston v. Livingston (2 John- son's Ohy. Eep. 539) 154 Lloyd V. WUlianis (1 Maddox, 464) 231, 233, 234 V. Mason (5 Hare, 149) 238 - Lockridge v. Lockridge (3 Dana, 29) 960, 961, 966 Lockwood V. Stockholm (11 Paige, 87) 298 r V. Thomas (12 John- son, 248) ■ 151 Logan V. Birket (1 M. &. K. 220) 130 1;.' Logan (2 B. Monroe, 144) 936, 959, 961 Loomer v. Wainwright (3 Sand. Oh. 135) 523 Long V. Weir (2 Eichardson's Eq. 283) 625 Loughboroughs v. Loughbo- roughs (14 B. Monroe, 553) 672, 680, 708, 747 Lowry v. Houston (3 Howard's Miss. Rep. 394) 988 Loy V. Duckett (1 0. & P. 312) 1028 Lucas V. Lucas (1 Atk. 270) 591, 825 Lush V. Wilkinson (5 Vesey, 384) 79 Lynn v. Bradley (1 Metcalf's Ky. Eep. 232) 204 M. Mackey v. Proctor (12 B. Mon- roe, 433) 50, 422, 423, 729 Maguire v. Maguire (7 Dana, 184) 7, 961, 970, 972 V. Thompson (7 Peters, 348) 10 Magwood V. Johnson (1 Hill's Ohy. Eep. 228) 341 Mahan v. Mahan (7 B. Monroe, 579) 85 Major ?;. Lansley (2 Euss. & My. 357) 366 Margetts v. Barringer (7 Simon's Eep. 482) 769 Marshall v. Anderson (1 B. Mon- roe, 198) 514, 542 '- V. McDaniel (8 B. Mon- roe, 175) 35, 222 '■ V. Hutchinson (5 B. Monroe, 305) 35, 49 ■;;. Marshall (1 Jones, 430) 815 & Ux. V. Lewis (4 Lit- tell, 141) 1030 Martin v. Mitchell (2 J. & W. 424) 229, 735 Mason v. Morgan (2 Adol. & El- lis, 30) 997 Mason & Ux. v. Baker et al. (1 Marshall, 208) 62 May V. May (11 Paige, 201) 909 Mayhugh v. Mayhugh (7 B. Mon- roe, 430) 942, 961 McOallister v. Brand's Heirs (11 B. Monroe, 375) 671, 672 Macaulay v. Phillips (4 Vesey, 17} 161, 179 McOampbell't;. McOampbell (5 Littell, 94) 515 McOann v. Letcher (8 B. Mon- roe, 326) 34, 42, 44, 49, 433 V. O'Perrall (8 01. & P. 30) 814 McOlain v. Gregg (2 Marsh. 455) 204 [xixj MIT INDEX TO CASES CITED, NEI McClanahan v. Beaaley (17 B. Monroe, 114) 432 McOlure v. Harris {12 B. Mon- roe, 266) 508 V. Miller (1 Bailey's Bq. 108) 89 McOrockhn v. McOrocklin (2 B. Monroe, 370) 115, 153 McOuUougli & Uz. V. Allen & Ux. (3 Yates, 10) 663 McDaniel v. Douglas (6 Humph- reys, 220) 664 McDonald v. Fleming (12 B. Monroe, 287) 961 McDowall & TJx. v. "Wood & Ux. (2 Nott & McOord, 242) 1004 McDonnell v. Murphy (2 P. & Smith, 279) 138 McElfresh Adm'r v. Schley & Barr (2 Gill. 182) 631 McElroy v. Wathen (3 B. Mon- roe, 136) 514, 452 McGraughey's Adra'r v. Henry (15 Monroe, 383) 694, 701, 751 McGrath v. Eobertson's Adm'r (1 Dessauss. 445) 1003 Mclntire v. Hughes (4 Bibb. 186) 81,85 McNair's Adm'rs v. Hawkins (4 Bibb. 390) 451 McNeilage v. HoUoway (1 Baron & Aid. 218) 1011 McEainy v. Clark (2 Taylor, 278) 816 Mealis v. Mealis (5 Vesey, 517, note) 181 Merrman's Heirs v. Caldwell's Heirs (8 B. Monroe, 32) 437, 728, 1041 Mercein v. The People (25 Wend. 64) 135 Merriweather v. Booker (5 Lit- tell, 258) 214, 1030 Miller v. Miller (6 Johnson Chy. 91) 968 V. (1 J. J. Mar- shall, 169) 986, 990, 1019 V. Shackleford (3 Dana, 289) 727, 1041 Milnerw. Turner's Heirs (4 Mon- roe, 245) 419, 424, 729, 1031 Milner et al. v. Milner et al. (3 T. R. 631) 995 Milnes v. Busk (2 Vesey, Jr. 490) 386 Mitchell V. Walker (17 lb. 66) 871 Mitchinson v. Hewson (7 T. E. ' 348) 1010 [XX] Molony v. Kennedy (10 Sim. 254) 379 Moody & Ux. V. King (2 Bing- ham, 447) 442, 443 More V. Ellis (Bunb. 205) 154 V. Moore (12 B. Monroe, 662) 111, 113, 416, 420, 459, 698, 899 V. Moore (14 B. Monroe, 260) 158, 216, 217 V. Simpson (5 Littell, 51) 1017 Morehring v. Mitchell (1 Barb. Chy. Eep. 272) 780, 785, 799 Morice v. Bishop of Durham (11 Vesey, 57) 908 Morris v. Norfolk (1 Taunton, 214) 997, 1010 Morrow v. Whiteside's Ex'or (10, B. Monroe, 412) 1016 Moss V. Brander (1 Phill. 254) 784 Montjoy & Ux. v. Lashbrooke (2 B. Monroe, 261) 391, 396, 586 Mullock V. Souder (5 Watts & Serg. 198) 820 Murray v. Barlee (3 Myl. & K. 209) 326, 335, 365, 369, 370, 375 V. Lord Elibank (13 Ve- sey, 6) 155, 158, 231, 233 Myers v. Saunders (7 Dana, 506) 66 ■«. Haviland (6 Johnson's Chy. 27) 155 N. Nantes v. Corrock (9 Vesey. 182) 379 Nash V. Nash (2 Mad. Chy. 133) 385 Neves V. Scott (9 Howard U. S. C. 196) 154 Nedby v. Nedby (4 Myl. & Craig, ^^367) 772 iSelthrop & Ux. v. Anderson (1 Salkeld, 114) 997 Newenham v. Pemberton (11 Jurist, 1071) 158 Newbiggin v. Pillans (2 Bay, 162) „ , 1000, 1003 Newburyport Bank v. Stone (13 Pickering;^429) 810 Newlin v. Freeman (4 Iredell ^314) 812 Newstead v. Searles (1 Ath. 264) 22 Neimcewicz v. Gahn (3 Paige, 614) 522 Nichols V. Palmer (5 Day, 47) 140 PEA INDEX TO CASES CITED. RAT North American Coal Co. v. Dy- ett (7 Paige, 9) 261, 321, 330, 340 Northcut V. Whipp (12 Ben. Monroe, 65) 438, 445, 510, 516 Norton v. Turvill (2 P. Wil- liams, 145) 324, 368, 379 Noyes v. Blakeman (3 Sanford, S. 0. R. 531) 308 Nunn V. Wilsmore (8 Term. Rep. 529) 22 Nntt V. Nutt et al. (1 Freeman's Chy. 128) 629 0. O'BriscoU V. Rogers (2 Dessaus- snre, 295) 668 Oldham v. Hughs (2 Atk. 453) 212 V. Henderson (5 Dana, 255) 462, 1041 V. Sale (1 Ben. Monroe, 77) 507 V. Turner (5 Dana, 503 Olmstead v. Olmstead (4 Comst. 56) 857 Osgood V. Breed (12 Mass. 525) 810 Otley V. Manning (9 East, 69) 25 Ottway V. King (12 Simon, 90) 386 Oulesi;.Jackson(2Strange,172) 847 Owens V. Dickinson (Craig & Phil. 48) 321, 323, 326, 333, 374, 379 Page V. Trufant et al. (2 Mass. Rep. 159) 140 Packer v. Dykes (1 Bq. Ca. Abr. 54) 182 Parker v. Parmele (20 Johnson, 130) 150 — ' — V. Brook (9 Vesey, 583) 367, 803 Parkes v. White (11 Vesey, 223) 367 Parkhill v. ParkhiU (Brayt. 239) 816 •Partridge v. Haven (10 Paige, 618) 384 Paul«;.Frazier(3Mass.Rep.V3) 102 Payne v. Payne (11 B. Monroe, 138) 379, 390, 1025 Peacock v. Monk (2 Vesey, Sr. 193) 324, 366, 368, 773, 786, 795, 803 Pearce v. Patton (7 B. Monroe, 170) -50, 85, 421, 529 Pearce?;. Pearce (7 lb. 435) 167,582 Pell V. Cole (2 J. P. Metcalf, 252) 260, 361 Pennington, Adm'r v. Gitting's ■ Ex'r (2 Gill & Johnson, 209) 85 Perry v. Boileau (10 Serg. & Rawle, 208) 991 Petty V. Malier (14 B. Monroe, 247) 255, 377, 386 V. Petty (4 lb. 218) 12, 49, 85, 93, 430, 489, 494, 529, 530 Phelps V. Phelps (20 Pickering, 556) 999 Phillips V. Green (3 A. K. Mar- shall, 7) 422, 729 V. Johnson (14 B. Mon- roe, 175) 879 Phillips et al. v. Richardson et al. (4 J. J. Marshall, 214) 1016 Philliskirk v. Pluckwell (2 Maule & Selw. 396) 990 Pickett w.Peay (3 Brevard, 545) 664 Pinckney v. Pinokney (2 Rich- ardson, Bq. 219) ' 668 Pinkard v. Smith (Littell's Se- lect Oases, 331) 1030 Pitts V. Snowden (1 Bro. C. 0. 292, n.) 654 Powell V. Hankey & Cox (2 P. Williams, 82) 718 Prat V. Taylor (Cro. Eliz. 61) 998 Preble v. Boghurst (1 S wanston, 319) 26, 100 Prescott V. Prescott (10 Ben. Monroe, 56) ' 449, 451, 698 Prewitt V. Graves (5 J. J. Mar- shall, 214) 419, 422, 423, 729 Price V. Price's Heirs (6 Dana, 107) 516 V. Sessions (3 Howard, 624) 294 Prichard v. Ames (Turner & Russ, 222) 7-69 Prince V. Hazleton (20 J ohnson's Rep. 502) 839 Pfobert V. Morgan (1 Atk. 440) 604 Proudley v. Fielder (2 My. & K. 57) 379, 1025, 1027 Pryor v. Hill (4 Bro. C. C. 139) 202 Pybus V. Smith (1 Vesey, Jr., 193) 367 R. Rankings. Barnard (5 Mad. 32) 892 Rathbone v. Dyckman (3 Paige, 30) 483 [xxi] EOW INDEX TO CASES CITJED. SHE Eeade v. Livingston (3 John- son's Ohy. Hep. 481) 11 Eeed v. Dickeman (12 Picker- ing, 146) 666 V. Eeed (9 Watts, 263) 667 Eeid V. Campbell (Meigs, 378) 665 V. Lamar (1 Strobhart's Bq. 27) 343 Eenfroe's Heirs v. Taylor (12 B. Monroe, 466) 516 Eennick v. Pioklin (3 B. Monroe, 166) 985, 1016 Eenningham v. McLaughlin (3 Monroe, 30) 58 Eei V. Wangford (1 Ld. Eay- mond, 395) 917 Eeynolds v. Eeynolds (5 Paige, 161) 481 Eich V. Cockell (9 Vesey, 375) 366, 784, 825 Eiohard v. Syms (1 Barnard's Ohy. Eep. 90) 838 Eichards v. Eichards (2 Barn- well and Ad. 447) 289 Eichardson v. Wheatland (7 Met- calf, 69) 860 Eing V. Baldridge (7 B. Monroe, 536) 1019 Eingo et al. v. Warder &c. (6 B. Monroe, 514) 220 Eippon V. Dawding (Ambler, 566) 154, 775, 796 Eice V. Thompson (14 B. Mon- roe, 381) • 1022, 1025 Eoach V. Garvan (1 Vesey, 158) 917 V. Hubbard (Littell's Select Ca. 235) 515 Eoadley v. Dixon (3 Eussell, 192) 656 Eobertson v. Hoffman and TJx. (15 B. Monroe, 82) 69, 71 V. Stephens (1 Iredell's Bq. 247) 670 Eobinson v. Eeynold (1 Atk. 174) • 1005 Eodney v. Chambers (2 East, 283) 136, 137, 138 Eogers v. Grider (1 Dana, 243) 107, 111 Eollfe V. Budder (Bunb. 187) 803 Eoosevelt v. BUithorpe (10 Paige, 415) 298 Eoss V. Willoughby (10 Price, 2) 145 ■;;. Garrison (1 Dana, 37) 107 V. Bwer (3 Atk. 160) 813 Eowe V. Jackson (Dick. 604) 229, 233 [ xxii ] Eussell V. Come (Lord Eaym'd, 1031) 996 Eyall V. Eowles (1 Vesey, 348) 838 Eydout V. Plymouth (2 Atk. 105) 604, 611 S. Saddington v. Kinsman (1 Bro. C.C. 51) 202 Salmon t;. Bennett (1 Conn. Eep. 525) 60 Sample v. Sample (2 Yates, 433) 648 Sanderson v. Crouch (2 Vernon 118) _ 881 Sanford v. Jackson (10 Paige, 266) 663 Satterlee v. Matthewson (2 Pe- ters, 412) 421 Sanders' Bxr. v. Sanders (12 B. Monroe 40) 42 Saville and Ux. v. Sweeney (4 Barn, and Ad., 514) 997 Scammel v. Wilkinson (2 Bast, 556) 803 Scarborough v. Watkins (9 B. Monroe, 548) 28, 153, 249, 415 Schermerhorn and Clute v. Mil- ler and Ux. (2 Cowen, 439) 173 Schoonmaker v. Elmendorf (10 Johnson, 49) 998 V. Sheeley (3 De- nio, 490) 471 Schuyler w. Hoyle (5 Johns. Chy. Eep. 196) 192, 203, 204, 285, 298, 887 Scholey v. Goodman (1 Oarr. & P. 36) 138 Scott V. Bell (2 Levintz, 70) 40, 42 Scriyen v. Taply (2 Eden 337) 227, 228, 231 Seagrav'e v. Seagrave (13 Ve- sey, 439) 129 Serres v. Dodd (5 Bos. & Pull. 405) 991 Sexton V. Wheaton (8 Wheaton 229) 74, 76, 77 Shank's v. Dupont et al. (3 Pe- ters, 248) 561 Shaw V. Standish (2 Vernon, 326) 74 V. White (13 Johnson, 179) 557 Sheffll V. Vandeusen (13 Gray, 304) 1012 STA INDEX TO CASES CITED. SUM Shepherd v. McKoul (3 Camp. 326) 965 Sheriff of Payette v. Buckner (1 Littell, 129) 1030 Shields' Heirs v. Batta (5 J. J. Marshall, 15) 519 Shumate v. Ballard (1 J. P. Metcalf, 31) 55, 57, 74 Simpson v. Simpson (4 Dana, 140) 115, 153 Singleton's Heirs v. Singleton's Exrs. (5 Dana, 93) 519, 1039 Skerret v. Burd (1 Wharton, 246) 820 Slanning v. Style (3 P. Williams, 334) 825 Sledd's Ex'rs v. Casey et al. (1 B. Monroe, 82) 765 Sleight V. Eeed (18 Barbour, 159) 159, 168, 712 Smiley v. Smiley's Admr. (1 Dana, 96) 516 Smith V. Colvin (17 Barbour, 160) 465 V. Hixon (2 Strange, 977) 998 V. Kniskem (4 Johns. Ohy. 9) 638, 657 V. Peyton (6 Monroe, 263) 1031 V. Smith (6 Mumford, 581) 575 V. Wilson (2 Metcalfs Ky. Eep. 235) 414, 415 Smith et Ux. v. Long (1 J. P. Metcalf, 486) 157, 204, 255 Smith's Heirs v. Smith (5 Dana, 180) 518 Sneed v. Bwing (5 J. J. Mar- shall, 490) 2, 5 Snelgrove et al. v. Snelgrove et al. (4 Desaussure, 274) 629, 668 V. Bailey (3 Atk. 214) 848 Snyder v. Snyder (3 Barb. S. C. 621) 300, 305 South's Heirs v. Hoy's Heirs (3 Monroe, 93) 1030 Southard v. Rexford (6 Cowan, N. Y. 254) 98 Spiers and Ux. v. Alexander (1 Hawks, 67) 998 Squib V. Wyn (1 P. Williams, 378) 204, 289, 1020 Stackpole v. Beaumont (3 Vesey, 89) 931 Stalley v. Barhite & Ux. (2 Caines, 221) 991 Stamper I). Barker (5 Madd. 157) 130 Stanford v. Marshall (2 Atk. 69) 330, 379 Stansbury v. Watkins (2 Yer- non, 614, note) 386 Stanwood v. Stanwood (17 Mass. 67) 999 Stark et al. v. Hunton et al. (Sax- ton's Chy. 217) 663, 667 Stead V. Nelson (2 Beav. 245) 366 Steedman v. Pool (6 Hare, 193) 769 Steele v. 0url(4 Dana, 382) 68 Steinmitz v. Halthin (1 G. & I. 65) 235, 237 Stephens v. Olive (2 Bro. Ohy. Eep. 90) 78 Sterry v. Arden (1 Johns. Chy. 263) 11, 25, 100 Stevens v. Smith (4 J. J. Mar- shall, 67) 507, 509 Stevens' Heirs v. Stevens (3 Dana, 373) 516, 517 Stevenson v. Gray (17 B. Mon- roe, 210) 9 St. George v. Wake (1 My. & Keene, 610) 89 Stewart v. Stewart (7 Johnson Ohy. 229) 1026, 1025, 1029 Stewart's Lessee v. Stewart (3 J. J. Marshall, 49) 507 Stilley et Ux. v. Folger et al. (14 Ohio Eep. 610) 666 St. John V. St. John (11 Yesey, 532) 124, 135, 137, 145 Stone V. Guthrie & al-. (MSS. January, 1858) 404 Stover V. Boswell (3 Dana, 233) 9 Strahanw. Sutton (3 Yesey, 249) 650, 655 Strathmore v. Bowes (2 Bro. 0. 0. 345) 92 Strong V. Skinner (4 Barb. S. 0. E. 546) 154, 770, 773 V. Smith (1 Metcalf, 476) 999 V. Wilkin (1 Barb. Ohy. Eep. 13) 780, 785, 799 V. Wilder (17 B. Mon- roe, 58) 252, 362, 366, 412, 415 & Ux. V. Kirkwald (3 Mad. 387) 321, 347, 368, 369, 372, 379 Sturgis V. Ohampneys (5 My. & Or. 105) 158 V. Corp (13 Yesey, 190) 366,773, 803 Sumner v. Partridge (2 Atkins, 46) 442 [xxiii ] TIT INDEX TO CASES CITED. VAN Swaine v. Ferine {5 Joliiison's Ch*. 482) 12, 49, 85, 430, 494, 529, 530 T. Tappenden v. Walsh (1 Phill. 352) 784, 803 Tarback v. Marbury (2 Vernon, 510) 16 Tate V. Austin (1 P. Williams, 264) 617 Taylor v. Brodriok (1 Dana, 348) 540, 548, 556, 557 V. Gould (10 Barb. Eep. 389) 483 ■- V. Jones (2 Atk. 599) 121 V. Porter (4 Hill, 140) 295, 302 — : — V. Pugh (1 Hare, 612) 87 . V. Bains (7 Mod. 147) 807 Taylor & Ux. v. Anderson Ex'r (7 B. Monroe, 553) 244 Terry's Adm'rii. Hopkins (1 Hill, Chy. Eep. 1) 89 Tevis V. Steele (4 Monroe, 341) 508, 517 Tevis's Bx'rs v. Eiehardson's Heirs (7 Monroe, 660] 1031 The King v. Deleval (3 Burr, 1436) 920 V. Greenhill (4 Adol. & E. 642) 920 V. Hopkins (7 Bast, 579) 920 The People v. Mercein (8 Paige, 47) 918, 920 ' — V. Porter (1 Duer, 709) 920, 921, 922 Thomas v. Kennedy (4 B. Mon- roe, 235) 189, 204, 214, 215, 248 Thompson v. Egbert (2 Harri- son, 460) 667 V. Thompson (2 B. Monroe, 171) 387, 584, 589 . • V. Vance (1 Metcalf s Ky. Eep. 669) 685, 701 Thorold v. Thorold (1 Phillim. 1) 846 Thornberry v. Thornberry (2 J. J. Marshall, 325) 943,961 Timberlake v. Parish (5 Dana, 345) 643 Tipping V. Tipping (1 P. Wil- liams, 729) 599, 609 Titus V. Neilson (5 Johnson's Chy. 452) 500, 504, 505 [ xxiv ] Tobin V. Dixon & Ux. (2 J. P. Metcalf s Ky. Eep. 422) 157 Todd V. Eedford (11 Mod. 264) 996 V. Stoakes (1 Salkeld, 116) 151 Todd's Heirs v. Wickliffe (18 B. Monroe, 906) 17, 28, 153, 249, 367, 415 Tomlinson v. Dighton (1 P. Wil- liams, 149) 795 Tondin v. Jayne (2 B. Monroe, 162) 463 Townsend v. Windham (2 Ve^ sey, 11) 19, 54, 77 Triggs Adm'r v. Daniel (2 Bibb. 301) 516 Trimble v. SpiUer (7 Monroe, 395) 1017 V. Stipe (5 lb. 265) 1031 . — V. Eatcliffe (9 B. Mon- roe, 514) 60 Trustees Transylvania Univer- sity V. Clay (2 B. Monroe, 386) 392 Tugman v. Hopkins (4 Man. & Gr. 389) 379 Turman -v. White's Heirs (14 B. Monroe, 560) 458, 698 Turner v. Warwick (Pinch Chy. Ca. 73) 128 V. Davis's Adm'r (1 B. Monroe, 151) 573 Turpin v. Thompson (2 Met- calf s Ky. Eep. 421) 826 Tuttle V. Murray & Ux. (5 John- son's Ohy. Eep. 200) 888 Tynt V. Tynt (1 P. Williams, 542) 604 Tyrrell v. Hope (2 Atk. 558) 575 U. Upshaw i). Upshaw (2 Henning & Mun. 389) 214, 668 Valentine v. Ford (2 P. A Browne, 193) "looa Vance & Ex. v. Campbell's Heirs (1 Dana, 229) 710 Vanderheydan v. Malloney (1 Comstock, 452) 330 Van Bpps v. Vandusen (4 Paige, 64) 287 Van Orden v. Van Orden (10 Johnson, 30-32) 664 WHI INDEX TO CASES CITED, WOO Vanthienen v. Vanthienen (Fitz. Gib. 203) 947 Van Veghten v. Veghten (4 Johns. Chy. 502) 953 Vartie v. Underwood {18 Barb. N. Y. Eep. 562) 520 Yerplanck v. Sterry (12 John- son, 536) 11, 18, 64 Villareal v. Meillish (2 Swans- ton, 533) 927 Villa Real v. Lord Galway (1 Bro. C. C. 292, note) 653, 656 W. WagstafFv. Smith (9 Vesey, 520) 366, 769, 788 Wake V. Wake (3 Bro. 0. C. 255) 653 Walford v. The Duchess de Pi- enne (2 Esp. R. 554) 1005 Walker v. Mebane (1 Murphy, 41) 998 WaU V. Hill (7 Dana, 173) 557 V. Tomlinson (16 Vesey, 413) 198 Wallace v. Marshall (9 B. Mon- roe, 159) 12, 48, 49, 530 V. Talliaferro & Ux. (2 CaU's Eep. 447) ■ 573 Ward V. Turner (2 Ves. Sr. 431) 828 V. Shallet (2 Ves. Sr. 16) 39 Warrick v. Warrick (3 Atk. 290) 93 Wash V. Medley (1 Dana, 269) 58 Waters v. Gooch (6 J. J. Mar- shaU, 586) 514, 540, 556, 557 Watt V. Watt (2 Vesey, Jr. 346) 289, 988 Walter v. Hodge (2 Swanston, 97) 824 Weaver v. Bachert (2 Barr's Eep. 80) 103 Wellesley v. Wellesley (2 Bligh's Eep. N. 8. 124) 921 Westmeath v. Westmeath (1 Jao. 0. 0. 143) 138 Western v. Short (12 Ben. Mon- roe, 155) 47 Whalen v. Layman (2 Blackford's Eep. 194) 103 Wheeler's Heirs v. Dunlap (13 B. Monroe, 292) 868, 872 Whilden v. Whilden (Riley's Chy. 205) 644 Whistler v. Newman (4 Vesey, 129) 367 White V. White (5 Barbour, 474) -305 1). White (1 Harrison, 202) 659 Whitfield V. Hurst (3 Iredell's Eq. Eep. 242) 813 Whitsell V. Whitsell (8 B. Mon- roe, 50) 962 Whitaker v. Blair (3 J. J. Mar- shall, 236) 362, 405, 407, 411, 587 ' V. Whittaker (6 John- son, 112) 289, 988, 1019 Whittem v. Sawyer (1 Beav. 593) 242 Wightman v. Coates (15 Mass. Eep. 1) 97 Wilcox V. Wilcox (2 Vernon, 558) 122 Wildman v. Wildman (9 Vesey, 176) 197 Wilhite V. Eoberts (4 Dana, 174) 68 Wilkes V. Wilkes (2 Dick. 791) 119 Wilkinson v. Adams (1 Ves. & B. 422) 870 V. Brayfleld (2 Ver- non, 307) 425 V. Leland (2 Peters, 627) 304 V. Wright (6 B. Mon- roe Ky. Eep. 577) 716 Williams v. Duke of Bolton (4 Bro. Chy. Cases, 297) 377 V. Monroe (18 B. Mon- roe, 515) 965 V. Morgan (1 Littell, 167) 518 Williamson v. Williamson (18 B. Monroe, 384) 172, 361, 362, 410, 411, 696 Wilson V. Arney (1 Devereux & Battle's Eq. Eep. 376) 624 V. Wilson (9 Ben. Mon- roe, 277) 55 V. Daniel (13 lb. 351) 86, 91, 92, 191 Wilson's Ex'r v. Havne & Ux. (Oheves' Eq. 40) ' 663, 669 Wilton V. Webster (7 Carr & Payne, 198) 997 Winch V. Page (Bunberry, 86) 181 Winn V. Elliott (Hardin, 482) 509 Wing V. Hurlburt (15 Vermont, 607) 964 Wogan V. Small (11 Serg. & E. 141J 818 Wood. w. Bullock (3 Hawks' Rep. 298) 812 [xxv J WRI INDEX TO OASES CITED. YOU Wood V. Wood (5 Paige, 597) 641 Adra'r v. Wood's Devisees (1 Metcalf s Ky. Eep. 512) 614 Wright t;. Merely (11 Vesey, 12) 180, 185 Wright V. Arnold (14 B. Mon- roe, 643) 204, 246 V. Rose (2 Simon & Stuart, 323) 505 [ xxvi ] Yale V. Dederer & Ux. (18 N. Y. 265) 306 Yard v. Eland (Lord Raymond, 368) 997 Yeo V. Yeo (2 Dick. 498) 129 Young & Ux. V. Miles' Ex'ors (10 B. Monroe, 287) 389 LEGAL AJ^D EQUITABLE RIGHTS OP MAERIED WOMEN. LEGAL AND EQUITABLE RIGHTS OF MARRIED WOMEN. CHAPTER I. MARRIAGE. § 1. It is a solemn contract, dictated by nature, and instituted by Providence, whereby a man is united to a woman for the lawful purposes of civilized life.^ The common law treats this contract as a civil institution, and, therefore, it deems it to be good and valid, where it is entered into by persons willing and able to contract, and who actually do contract according to the solemnities established by law.^ § 2. The disabilities are of two kinds, dvil and canonical. Before the marriage acts of William, and of George II., a con- tract of marriage, per verba de presenii, was considered " ipsum matrimonium"^ when consummated by persons laboring under no legal disability. Although Innocent III. endeavored to con- vert marriage from a civil into a religious rite, the common law never required that it should be in facie ecclesice* The 26 Geo. ■ See Parsons on Contracts of Manlage, sec. iv. book iii. pp. 557 — 68. ^ See Burnham v. Comwell, 16 Ben. Monroe, 287 ; Fible v. Caplinger, 13 ib. 464 ; 2 Bibb, 341. For the elements of a contract in fact of a marriage pro- mise and evidence thereof, see note to sec. 9, posterior. » 2 Kent, 86—91. * Dumarsely v. Fishly, 3 Marshall, 371 ; Sneed v. Ewing, 5 J. J. Marshall, 490. 1 [1] CHAP. I.] MAEEIAGE. [§ ^ II., chap. 33, was repealed by 3 Geo. IV., chap. 75. And the present English marriage act is the 4 Geo. IV., chap. 76." § 8. But it extends only to England. Marriages on elope- ments to Scotland are held valid. Marriages of British subjects in foreign countries are valid if made according to the laws of those countries. § 4. Chancellor Kent' says : " The principle is that, in re- spect to marriage, the Lex loci contractus prevails over the Lex domicili, as being the safer rule, and one dictated by just and enlightened views of international jurisprudence, and is the law and practice of all civilized countries. It is a part of the jus gentium of Europe. Infinite mischief and confusion would ensue, with respect to legitimacy, succession and other rights, if the rule did not prevail." The rights and incidents of mar- riage, where celebrated, attend it elsewhere. § 5. In Stevenson v. Gray,' where a marriage had been cele- brated between a nephew and his uncle's widow, in Tennessee, where it was legal, though against a statute of Kentucky, of 1798, in force at the time, and they returned and remained domiciled in Kentucky, held that the marriage could not be declared void, and so treated, and especially in the collateral proceeding, where her children by her_^rsi husband, before this marriage, after her death, sought to treat the marriage as void — recover from him her real estate, and deprive him of his curtesy, it being the general settled rule in England, and in most of the States of the Union, and especially Kentucky," that a mar- riage which is valid by the law of the country where made, is to be held valid in other countries where the parties may be domiciled, though it might have been invalid by the law of the domicile if it had been celebrated there.* ' See note 26 to 1 Blaokstone, Lippinoott's edition, 1856. 2 2 Com. p. 78. ' 17 Ben. Monroe, Ky. Rep. 210. * Stevenson v. Gray, 17 Ben. Monroe, 210 ; see case of Clendening v. Same, 1 Martin L. R. * So previously held in Dumarsly v. Fishly, 3 A. K. Marshall, 371 ; Sneed y. Ewing, 5 J. J. Marshall, 490. 2 Kent, 78. [2] § 8] MARRIAGE. [CHAP. I. § 6. In Dartmouth College v. Woodward,' in the opinion given by Judge Story, he added some new and interesting views of the nature of the contracts which the Constitution intended to protect. He denied the power of the legislature to dissolve even the contract of marriage, without a hreach on either side, and against the wishes of the parties. A dissolution of the marriage obligation, without any default or assent of the parties, may as well fall within the prohibition of the Constitution as any other contract for a valuable consideration. A man has as good a right to his wife as to the pivperty acquired under a marriage contract; and to divest him of that right without his default, and against his will, would be as flagrant a violation of the principles of justice as the confiscation of his estate, § 7. But in Maguire v. Maguire,' Chief Justice Eobertson considered the contract of marriage to be sui generis, and unlike ordinary or commercial contracts. It was puhlici juris, and created by the public law, subject to the public will, and not to that of the parties who could not dissolve it by mutual consent. It was much more than a contract. It established fundamental domestic relations, and he did not think it was embraced by the constitutional interdiction of legislative acts impairing the obli- gation of contracts. And this is approved 1 Kent, 418, note (a). § 8. The ancient Greek legislators considered the relation of marriage as a matter not merely of private, but also of public or general interest. It is truly more than a mere contract. It is founded in nature, and ordained as the provision for perpetuating the race of man. It constitutes the relation, and is the cause of other relations, which, extending through the fabric of every other community, constitute the foundation not only of all social order and refinement, but of the continued existence of society and of nations. Originating in and consummated by consent, deemed essential by natural as well as by municipal law, to the valid constitution of a marriage, it has this principal element of a contract. But being of more importance to society than all other contracts combined, and creating relations of the highest ' 4th Wheaton, 518. = 7 Dana, Ky. Eep. 184. CHAP. I.] MAEEIAGE. [§ 9 possible interest to every single nation, and to all nations, while in most nations of the Christian world, although this element of consent is so far regarded that an unfulfilled promise of mar- riage will not, at least under our law, be specifically enforced by public authority. Every nation has undertaken to regulate for itself the essentials of a valid marriage, and the modes of its consummation, within its own territory; and every nation con- cedes to all others the right of so doing. § 9. Each nation also regulates for itself, and with respect to persons and property within its own territory, the rights consequent upon a valid marriage wherever it may have taken place. And in all Christian nations and countries the marriage is not dissolvable at the mere will of the parties.^ For a second marriage is void, the first wife living and no divorce.^ Note. — As to the general elementary principle of the law of marriage, capacity of persons, &o., see Kent's Commentaries, 75 to 94. And for the rules of evidence as to marriage, see Fenton v. Eeed, 4 Johnson 52, and the authorities cited, sees. 549, 560-51-52-53-54-55, posterior in the action of writ of dower, in which the marriage is necessary to be proven, and the elementary principles of evidence are there fully discussed. It may be remarked, that marriage may be presumed from circumstances (except in prosecutions for bigamy and actions of crim. con.), as from cohabitation, reputation, and acknowledgment of the parties, &c.' And this general rule applies to free persons of color, as well as to whites.' Although they cannot legally contract marriage whilst in a state of .slavery.^ ' Stevens v. Gray, 17 Ben. Monroe, Ky. Eep. 212 ; and Bishop on M. and D., sec. 125-6 ; Story's Conflict of Laws, sec. 123 to 124. ■" Donelly v. Donelly, 8 Ben. Monroe, 116 ; 2 Kent, 79, 80 ; Croke, Elizabeth, 858 ; 2 Dana, 105 ; 1 Johnson C. E. 389. ' Stover V. Boswell, 3 Dana, 233 ; Donelly v. Donelly, 8 Ben. Monroe, 116 ; also, 9 Johnson, 68 ; 18 Johnson, 350. « Stover V. Boswell, 3 Dana, 233 ; Free, Frank, and Lucy v. Denham's Adm 5 Littell, 330. ' 5 5 Littell, 330. [4] § 11] ANTENUPTIAL CONTRACT. [CHAP. II. CHAPTER II. ANTENUPTIAL CONTRACT. § 10. Antenuptial settlements, in view of the rights of marriage, where made hefore and in contemplation of marriage are good, not only against the husband, but against Ids creditors and subsequent purchasers, as well as all others. The husband has the right to settle his property in contem- plation of marriage, and it cannot be defeated even by his creditors.* § 11. Where the wife, before marriage, entered into an agree- ment with her intended husband, that she should have power, ■ Champion v. Cotton, 17 Vesey, 263, 2 Kent, 173 ; Magniao v. Thompson, 7 Peters, 348. The following contract being duly recorded after marriage, was sustained as against attaching creditors : — Whereas, a marriage is intended to be had and solemnized between Joseph L. Foutier, of Fleming County, and Mary McDonald, of Lewis County, Ken- tucky, but before the marriage takes place they hare entered into the following contract : — The money and property of every sort, description, owned, or hereafter ac- quired by each of the parties, shall be a common fund for the support and maintenance of both during the marriage relation between them. In the event of the death of the said Joseph L. Foutier before that of the said Mary McDonald, all his estate, real, personal, or mixed, of every description, and wheresoever situated, now owned, or which may be hereafter acquired, shall, by virtue of this contract, pass directly to the said Mary McDonald ; and the same in that event is hereby conveyed to her. And in the event of the death of the said Mary McDonald before that of the said Joseph L. Foutier, all the estate of the said Mary McDonald which consists of money and some personal property now held by her, and all such as she may hereafter acquire, shall pass directly to the said Joseph L. Foutier under this contract ; and the same is hereby conveyed to him. In testimony whereof the said Joseph L. Foutier and Mary McDonald have herewith set their hands and seals this 28th day of May, 1859. (Signed) JOSEPH L. FOUTIER, MARY McDonald. [5] CHAP. II.] ANTENUPTIAL CONTRACT. [§ 14 during the coverture, to dispose of her real estate by will ; and she afterwards devised the whole estate to her husband, this was held a valid disposition of her estate in equity, and the heirs at law of the wife were decreed to convey the legal title and estate to her devisee — her surviving husband." The court sustained it by an able collation of authorities, re- marking: Could anything be more fit or proper than that the wife should, in turn, provide for her husband whom she loved, and whom her death might, otherwise, leave destitute, when there are no children to interfere with the exercise of her un- divided affection ? Marriage articles are founded on the consideration of marriage, which is a good, valuable, and meritorious consideration there- for.^ And made when the parties are each able to contract generally with each other — when free— not fettered or restricted by the general marital code. § 12. Where a man advanced in life, having children by a former wife, contracted marriage with a woman in moderate cir- cumstances, though much younger than himself, and two days before the marriage conveyed to his children by the first mar- riage all his lands, slaves, and personalty, without the knowledge of the intended wife, reserving a life estate to himself, heM that the chancellor, on the bill of the wife, even before the death of the husband, might declare the conveyance void, so far as it may deprive her of dower in the lands, in case she survive him, and no further.' § 13. Eights of property dependent on the nuptial contract are governed by the lex loci contractus* § 14. In Campion v. Cotton,' A., previously to and in contem- ' Bradish i-. Gibb, 3 Johnson's Chy. Eep. 523, 560. ' Same case. See also Sterry v. Arden, 1 Johnson, C. Rep. 262, and Verplank V. Sterry, 12 Johnson's Eep. 527. 1 Roper, 303. Kinnard v. Daniel, 13 Ben. Monroe, Ky. Eep. 500. Reade v. Livingston, 3 Johnson's C. R. 481. Note (a) 2 Kent, 173. ^ Petty V. Petty, 4 Ben. Monroe, Ky. Rep. 218. Swaine v. Ferine, 5 John- son's Chy. Eep. S. P. Wallace v. Marshall, 9 B. Monroe, 159. * Deoocuohe v. Savetier & al., 3 Johnson Chy. 190. = 17 Vesey, 263. § 15] ANTENUPTIAL CONTRACT. [CHAP. 11. plation of his marriage with B., and in order to make a provision for himself and wife, and with a view of withdrawing out of the reach of his creditors a considerable part of his property, trans- ferred at various times before the marriage into her name several sums of stock, and invested moneys in her name, all which, as it was stated in the bill, were not his own property, but that of other persons who had employed him as a stock broker, and that the fact was well known to B. The marriage took place in the year 1805, and between that year and 1802 preceding, various deeds and settlements were executed by A. in favor of B., containing (as it was alleged) /aise statements of property belonging to B. (which in fact never did belong to her), with the intent to defeat the husband's creditors; and with the like view sums in stock amounting to £6200 an- nuities, were, in the settlement made shortly before the marriage, recited, contrary to the truth, as belonging to her, and the same with other property were settled to her separate use for life, with an absolute power of disposition, B. having survived her husband, his creditors attempted to defeat the above transactions and settlement upon the grounds of fraud, but which was not proved, and was denied by B. Sir Wm. Grant, M. E., decided against the creditors, because it was immaterial whether the stock was, as recited, purchased with the wife's money or not; for, if it were the husband's, he had a right to settle it in contemplation of marriage, and the settlement could not be defeated by his creditors. And that the fact of his being indebted at the time and that she hiew it, would not in the least affect the validity of the settlements. § 15. But if a power of revocation be contained in an ante- nuptial settlement of real property, it will be void against a subsequent purchaser, and the effect will be all the same, al- though the husband had released or extinguished his power before he made the subsequent sale.^ So if made to depend upon the consent of others under the control of the settler.' ' 3 Reports 83, and S. P. Moore's Eep. 617. See BrigM's Husband and Wife, vol. ii. page 103. 2 3 Levintz, 146 ; Croke, James, 454. [7] CHAP. II.] ANTENUPTIAL CONTBACT, [§ 18 § 16. But if made to depend upoa the consent of persons not in the interest or under the control of the settler's own, the set- tlement will be valid against a subsequent purchaser, as it was determined in Buller v. Waterhouse.' Therefore the usual powers in settlements to revoke the uses or trusts of the lands, for the purposes of sale and exchange, with a direction that the money should be paid to the trustees to be reinvested, will not avoid the settlement against a subsequent purchaser of the husband.^ If this power of reservation is very limited, fraud may not be inferred.^ Not so, however, where it is general." § 17. Settlements after marriage are held not to be binding upon the wife, from the general principle, that, considering the relation between man and wife, and the opportunities which he has of practising upon her affections and fears, so as to take undue advantage, the law throws around her a shield of pro- tection, and disables her from contracting personally with him relative to her property, except according to the forms which it has prescribed. But this principle is confined to cases where the wife is not acting as feme sole in relation to her property when she may dispose of it as she thinks proper, and contract with her hus- band or any other person as she may please.* § 18. In Verplank v. Sterry,^ Mr, Justice Spencer says : — It is perfectly well settled, that to impeach" a voluntary set- tlement made on a meritorious consideration, it is necessary that the seller should not only be indebted, but should be insol- vent, or iu doubtful circumstances, at the time. The 13th Eliz. was intended to prevent the conveyance of property with a design to defraud creditors. If the person making a settle- ' 3 Keble, 751. ' Doe V. Martin, 4 Term Rep. 39. ' Levintz, 150-2. ' Tarbuck v. Marbury, 2 Vernon, 510 ; 1 Atkins, 16 ; 3 Keble, 527 ; 2 Bright, ^ Bradishu. Gibbs, 3 Johnson, Rep. 550; 10Vesey,148; 6 East. 257- Todd's Heirs V. Wickliff, 18 Ben. Monroe, Ky. Rep. 906. ° 12 Johnson's Rep. 527. [8] § 21] ANTENUPTIAL CONTRACT. [CHAP. II. ment is insolvent, or ia doubtful circumstances, the settlement, depriving his creditors of the means of satisfying their debts, comes within the statute ; but if the grantor be not indebted to such a degree as that the settlement will deprive the creditors of an ample fund for the payment of their debts, the considera- tion of mutual love and affection will support the deed, although a voluntary one, against his creditors ; for, in the language of the decisions, it is free from the imputation oi fraud. § 19. And in continuation he said. Lord Hardwicke is very full and explicit on this point : — In Townsend v. Windham* he declared : " If there is a volun- tary conveyance of real estate, or chattel interest, by one not in- debted at the time, though he afterwards become indebted, if that voluntary conveyance was for a child and no particular badge of fraud to deceive or defraud subsequent creditors, that will do.'"^ § 20. Both the statutes (the 13th and 27th Eliz.) contain the general proviso annexed to our statute, excepting from their operation those deeds only which are bona fide, and upon good consideration. The deed from Arden to Mrs. Sterry has these two circumstances : It was bona fide, and it had a good considera- tion, that of hve and affection. If a subsequent purchaser, with notice, can set aside a deed like this one under consideration, it must be on the ground that the anterior deed is fraudulent ; and thus, a transaction, which no one can doubt to have been fair and bona fide, is to be con- sidered criminal, and punished as a fraud.' And this would be quite contrary to another part of Lord Mansfield's opinion in Doe v. Eutledge: "That no person making a voluntary settlement, by way of provision for his family, was ever considered in that criminal light."* § 21, It has been already observed, that the statute excepts from its operation deeds made on good consideration, and bona ' 2 Vesey, 11. ^ See also 2 Bro. ck. Cas. 90 ; 5 Vesey, 384. » See Enders v. Williams, 1 Metcalfe Ky. Rep.. • Ibid. [9] CHAP. II.] ANTENUPTIAL CONTEACT. [§22 fide. A settlement may, in its origin, have both these requi- sites, and yet may become fraudulent, and kept on foot against good faith. " If a fraudulent use is made of a settlement, that, indeed (said Lord Mansfield in Doe v. Eutledge), may be carried back to the time when the fraud commenced.'" "And I am free to admit, that, but for the intervention of the marriage between the respondents, frwr to the deed to the ap- pellant, as the proofs stand before us, the appellant must have prevailed. ArderHs continuance in the possession of the pro- perty, his receipt of the rents and profits, and, above all, the ignorance of the appellant that he had made the settlement, would, as respects him, have been strong circumstances that a fraudulent use had been made of the deed of settlement, and would have contaminated it. On the other hand, if the appel- lant had notice of the deed of settlement, the possession of the property by Arden, and his receipt of the rents and profits, would not have been badges oi fraud, and would not have misled him ; and, in that case, he would not, in my estimation, have been a bona fide purchaser, entitled to set aside the settle- ment. "And, in affirming this decree, I proceed entirely on the ground, that the marriage between the respondents furnished a valuable consideration to the voluntary deed from Mr. Arden to his daughter, Mrs. Sterry, ex post facto; and that, as against the appellant, the deed ceased to be a voluntary one, for good consideration merely.'" § 22. In the same case, Mr. Justice Yates said: "In Munn V. Wilsmore,^ Lord Kenyon observes, that very small considera- tions have been holden sufficient to give validity to a deed, when, in framing family settlements, limitations are made in favor of the distant branches of a family. Such remainders are not considered as voluntary, if the object of the parties in making the settlement was fair and honest. The case of New- stead and others v. Searles," supports the same principle. It would seem, from those cases, that the limitation to distant issue ' Cowper, 713. ' 3 D. & E. 529. " ^*'i^- * 1 Atkyns, 264. [10] § 25] ANTENUPTIAL CONTEACT. [CHAP. II, would alone be sufl5cient consideration to protect this deed ; but connect with it the marriage of Sterry, and I think its validity cannot be questioned." § 23. Marriage, of itself, is a sufficient consideration. That Louisa Ann's right to the property forwarded the marriage, is evident ; because Mr. Sterry, as a discreet and prudent man, must have felt an interest in the future support and maintenance of his family, and the avails of this property towards such support might well have been contemplated by him. This appears to have been the case, from his conversation with Col. Hawkins on the subject. Indeed, proper feelings for the com- fort as well as happiness of the object of his attachment, must have given importance to the immediate possession of this property. It, therefore, operated as an inducement to the con- nection. This marriage took place on the 11th day of December, and the deed was executed to Verplank between that date and the 14th of the same month, so that the marriage must, at all events, have been solemnized before the deed to Verplank. § 24. Mr. Sugden, in his "Law of Vendors,"^ in treating on voluntary settlements, says: "If a voluntary grantee gain credit by the conveyance to him, and a person is induced to marry Mm on account of such provision, the deed, though void in its creation, as to purchasers, will, on the marriage being solemnized, no longer remain voluntary, as it was in its crea- tion, but will be considered as made upon a valuable consider- ation — {gpodi ex jpost facto) y § 25. The same principle is recognized in Brown v. Carter,^ and by Lord Ellenborough, in the case of Otley v. Manning.^ If, then, it is even admitted that the conveyance of the 25th of November, 1805, to Messrs. Clinton and Arden, was voluntary in its creation, it is evident it assumed a different character in consequence of the marriage ; as that alone must be deemed a valuable consideration, which gave it a validity not to be ' Page 437. " 9 East. 69. 2 5 Vesey, Junr. 862. [lij CHAP. II.] ANTENUPTIAL CONTEACT. [§ 28 affected by the consequent deed to the appellant, and the chan- cellor's decree should be aflBrmed.' § 26. Marriage is a valuable consideration,* and where it forms any part of the consideration of a conveyance, the amount of pecuniary consideration becomes immaterial.^ And courts of equity will not judge according to strict rules of law on a gift of lands causi matrvmoni prolocuti.* For when there is no marriage intended there is no agree- ments, hence they are made in contemplation of marriage, and the amount of pecuniary consideration is immaterial. § 27. And after the husband shall make a settlement on the wife in pursuance of an antenuptial agreement, and she dies without issue (who were to be regarded as interested in that settlement), the court will not, at the instance of collateral heirs, set aside that settlement for their benefit, for the parties never can be placed in statu quo, and public policy forbids that the peace and tranquillity of the marriage relation thus formed should be disturbed for the mere quantum of the pecuniary consideration forming the inducement thereto. § 28. And as between husband and wife, the consideration of love and affection is a sufficient consideration, and will support a deed from the wife to the husband when made to carry into effect an antenuptial agreement.' And a conveyance by husband and wife of the real estate of the wife to a third person, with the intent that it be re-conveyed to the husband alone to invest him with the legal title to the estate, is valid, if made without any fraud or undue influence over the wife, but IN goodfaiih.^ ' See the decree in Sterry v. Arden, 1 Johnson's Chy. Eeps. 262. 2 Churchman v. Harvey, Ambler, 340. See sections 29, 30, posterior. ^ Prebble v. Boghurst, 1 Swanston, 319. * 2 Atkins, 202. » Todd's Heirs v. Wiokliffe, 18 Ben. Monroe, 906. « Scarborough v. Watkins, 9 Ben. Monroe, 648 ; also, 18 Ben. Monroe, 906. See also the statutes authorizing /ernes covert to convey their estates of inheri- tance generally, as that of 1796 of Ky. ^1 Stat. Law, 440, sec. 4.) ; and note to Ky. statute of 1852, appendix. [12] § 30] ANTENUPTIAL CONTRACT. [CHAP, II. § 29. A settlement made after marriage of real estate worth $5000, in pursuance of articles made or letters written lefore marriage, is valid against creditors or purchasers — marriage being a valuable consideration.^ But to support a settlement made aftej' marriage, in accord- ance with promises contained in letters purporting io have been written before the marriage, in a contest with creditors of the grantor, proof should be made to show that the letters bore the true date, and that they were received before marriage,* otherwise, a more secure covering for fraud, and a more ready way to sustain all settlements or marriage agreements, made after marriage, to overreach creditors, could not be invented.' § 30. But do the words of the Kentucky statute,'" in regard to covenants or agreements in consideration of marriage require that letters where written before marriage promising a settle- ment after marriage, be recorded, to support a settlement made in pursuance thereof; or does it apply to writings which vest or settle the property itself?' See, however, note for the pre- sent statutory provision.® Settlements made after marriage, but in pursuance of written articles entered into, or letters written before the marriage, are unimpeachable by any persons, whether they be creditors or subsequent purchasers; for the contract of marriage is a valua- ble consideration and establishes the settlement against every one.' ■ Roper on Property, 303, and Kinnard u. Daniel, 13 B. Mon. 499. ^ Kinnard v. Daniel, 13 Ben. Monroe, Ky. Rep. 506. ' Jones V. Henry, 3 Littell, 433 ; 13 Ben. Monroe, 506. ' 1 Morehead and Brown, Ky. Stat. Law, 439. 5 Kinnard v. Daniel, 13 Ben. Monroe, Ky. Rep. 500. The statute of 1852, see. 9, page 197, is a literal transcript of the former, to which the same quaere may be applied. ^ The following is the provision of the Ky. Revised Statutes of 1852, page 197, see. 9 : "No agreement in consideration of marriage shall be good against a purchaser, for a valuable consideration, not having had notice thereof, or any creditor, unless the same be acknowledged by the party who shall execute the same, or be proved and lodged for record in the proper office, as prescribed by law." The language in this provision is the same as in the old Ky. statute, 1 M. and B. 439. ' Roper on Property, vol. i. page 303. Kinnard v. Daniel, 13 Ben. Monroe, 500. [13] CHAP. III.] POSTNUPTIAL CONTEACTS OR SETTLEMENTS. [§ 32 CHAPTER III. POSTNUPTIAL CONTRACTS OR SETTLEMENTS. § 31. In Bullard v. Briggs:' Where a husband mortgaged his land, and in consideration of his wife's releasing her right of dower to the mortgagee, conveys the equity of redemption to a stranger in fee for the benefit of the wife, but by a deed containing no declaration of the trust and purporting to be for the consideration of a sum of money paid by the grantee : Seld, as against creditors of the husband, that the relinquish- ment of the right of dower was a valid consideration for the conveyance of the equity of redemption; that parol evidence was admissible to show that it was the true consideration; that if the transaction was in fact so made, was honest, and the value of the right of dower equivalent in value to the equity of redemption, the conveyance was valid. § 82. In which the court there said:' "Several points arise out of this state of the question, which we have considered with much attention, " 1. Is it competent to this tenant to avail herself of the facts proposed to be proved, in order to give validity to the deed to her, on which she relies for her defence f "The consideration proposed to be proved is different from that which is expressed in the deed, and it is objected that the deed is conclusive upon this point; but we think it has been reasonably settled, that this matter is open to evidence. More or less than is expressed in a deed may be proved by parol evidence as the consideration, and even a different considera- tion, if valuable, may be proved. A deed is valid in law with any valuable consideration, however small ; but as inadequate- ' 7 Pickering, 533 ; note, Sugden on Vendors. s lb [14] § 34] POSTNUPTIAL CONTRACTS OR SETTLEMENTS. [CHAP. III. nes3 of consideration may be relied on as evidence of fraud, the party claiming under it may show that another and a greater consideration was given than that which is expressed ; and this is done to rebut the presumption of fraud, which might arise from the apparent consideration in the deed. Cases of this sort are of frequent occurrence in the investigation of conveyances alleged to be fraudulent. § 33. " And it is not necessary that the consideration should pass immediately from the grantee to the grantor. If A. bar- gains for land with B., and pays the agreed price, and at A.'s request the deed is made to 0., without any fraudulent intent, 0. may maintain his title to the land by proving the considera- tion so paid. And even if the design of the conveyance were that C. should hold the land in trust for A., but he has executed no writing by which that trust can be legally proved, still the title of C. cannot be impeached by a creditor of B. on that account, for a declaration of trust may at any time afterwards be executed, or A. may confide in the integrity of C, and it is a matter only between A. and 0. whether the trust be executed or not. In the case supposed, B. has obtained the value of his land, and his creditors are not necessarily injured. It would be for a jury, on trial, to determine whether the transaction was loTM fide, and for sufficient consideration, or a mere contri- vance to cover the property from the creditors of B. ; and on this question the value of the land, compared with the amount of the consideration, would be an important ingredient.' "It is then to be considered, whether, the wife being virtually the purchaser from the husband (admitting the conveyance to be otherwise good), this relation prevents the operation of such a conveyance. § 84. "It is undoubtedly clear, that a mere voluntary settlement made by a husband upon his wife during the marriage, he being in debt, is void against creditors; but it is equally clear, that a conveyance made in trust for the wife, after marriage, upon the transfer to him by the wife of an equivalent out of her property. 7 Pickering, 533 ; note, Sngden on Vendors. [15] CHAP. III.] FOSTNCJPTIAL CONTEACTS OB SETTLEMENTS. [§37 will be established, both in equity and at law; and it ought to be so, for the case supposes that whatever is taken from the funds of the husband, whereby he might satisfy his creditors, is replaced by an equal amount from the funds of the wife, which his creditors could not otherwise reach.' § 35. "Postnuptial contracts are sanctioned upon this princi- ple, and the convenience and interest of families frequently require such exchanges. If they are honest, they ought to be supported ; if feigned or pretended, they will be uncovered and defeated. " The case will depend then upon the nature and value of the property or interest which is parted with by the wife, as the consideration of what she takes from the husband. If it be an estate absolute and vested, there should be no question, except as to its adequacy to the estate or right acquired, and this would be settled like all other cases in which conveyances are inipeached on the suggestion of covin or fraud.^ § 36. "The case before us presents a question not quite so clear, but yet settled, as we think, by respectable authority. The consideration for this intended settlement on the wife was her right of dower in the estate of which the husband was about to mortgage. Without her relinquishment he could not raise the money wanted for his support and his debts. His days were numbered by intemperance and disease. Though she had no actvnl estate in the dower during the life of her husband, yet she had an interest and a right of which she could not be divested but by her consent (or crime at least), or her dying before her husband.^ § 37. "It was a valuable interest, which is frequently the sub- ject of contract and bargain; it was an interest which the law recognizes as the subject of conveyance by fine in England, and by deed with us. It is more or less valuable according to the ■ Also, held in Hunt v. Dupuy, 11 Ben. Monroe, 286 ; McCann v. Letcher, 8 lb. 327 ; Marshall v. McDaniel, 8 lb. 175 ; Marshall v. Hutchison, 5 ib. 305. ^ BuUard v. Briggs, oont. page 633. » BuUard v. Brigga, 7 Pickering, 533. [16] § 39] POSTNUPTIAL CONTRACTS OR SETTLEMENTS. [CHAP. III. relative ages, constitutions, and habits of the husband and wife. It is more than a possibility, and may well he denominated a contingent interest^ ^ % 38. "Now, if we find that the surrender or conveyance by the wife of a contingent interest in property is a suflSoient con- sideration for the settlement of property by the husband upon her, then it is clear that the default in this case should be taken ofl", and the parties should go to trial upon the general merits of this settlement. "And we think the weight of authority is clearly with the affirmative. " The strongest case cited by demandant's counsel, indeed the only one directly to the point, is that of Dolin v. Coltman,^ in which a conveyance to the wife of the whole equity of redemp- tion in land, and which the husband had mortgaged, and in which she had relinquished her right of dower, was set aside in favor of two subsequent mortgagees of the husband. They, however, were subsequent purchasers, not creditors, and a dis- tinction exists in favor of purchasers by Stat. 27 Eliz., which does not hold in favor of creditors under the 13th of the same queen, for there must be fraud in the latter to avoid the convey- § 39. A late writer on marriage settlements," who appears to have thoroughly considered the subject, and has reviewed all the authorities, says: "This case is but shortly reported, and the reason for the decision does not very clearly appear." The reason, most probably, was, that the settlement was more than a reasonable equivalent for the interest the wife had parted with; and if so, the case of Dolin v. Coltman in nowise affects the position, " that parting with a right of dower will support a set- tlement made after marriage." This writer also supports the position, taken in this opinion, that the consideration need not be expressed in the deed ; for, he says, if the settlement on the face of it appears to be purely voluntary, no notice being taken ' Bullard v. Briggs, 1 Pickering, 533. " Ibid., 7 Pickering, 533. 2 1 Vernon, 294. * Atherly, 162. 2 [171 CHAP. III.] POSTNUPTIAL CONTEACTS OE SETTLEMENTS. [§ 42 of the -wife having released her jointure, &c., yet if the fact of her having done so be shown to have taken place about that time the court will presume the settlement to have been made for that consideration.' § 40. In the case of Scott v. Bell' it was decided that a join- tured wife may, by renouncing her present provision, become a purchaser for a valuable consideration from her husband, of an ample provision for herself. This was a case at law ; as was also the case of Lavender v. Blackstone.^ § 41. Indeed there seems to be no distinction in principle, between a relinquishment of a jointure and of dower, both being contingent upon the surviving of the wife, and equally certain as to the accruing of the estate in case of such surviv- ing. Mr. Eoberts, in his treatise on fraudulent conveyances, seems to think it not settled, that if a married woman suffers a fine to bar herself of dower, such act will be a good consideration for a settlement by the husband, though the intimations of the court in the case of Lavender v. Blackstone'' are strong to that effect. The words of the court are, " that as the wife did not join in the fine which was levied by the husband, of his estate tail, she continued dowable, but if she had joined, it might have made the settlement to be upon good consideration, which otherwise was merely voluntary."" § 42. And Mr. Eoberts concludes his examination of the cases by the remark, that " it seems reasonable to presume that if the wife, in the case of Scott v. Bell," had joined in the fine for the purpose only of barring her dower, instead of parting with her jointure interest in the manor of BlacJcacre, such estate would have been good and supportable against creditors or subsequent purchasers for a valuable consideration." Chancellor Kent, in his valuable Com. vol. 2, page 139 to 145, cites these authorities and advances the position, that post- ' See Atterly, 164, relying upon Ward v. Shallet, 2 Vesey, Sen. 16. ' 2 Levintz, 70. ' Levintz, 146L ' Ibid. 5 i^id. 6 levintz, 70. I 45] POSTNUPTIAL CONTRACTS OE SETTLEMENTS. [CHAP. III. nuptial contracts founded on the transfer by the wife, of a con- tingent interest only, are valid against creditors,' § 43. We think, then, there is ample authority for adopting the principle, that a relinquishment of dower by the wife, living the husband, is a good and valtmble consideration for a convey- ance by the husband to the wife, of property which may be considered but. a fair equivalent, and that such a conveyance will be valid or otherwise, according as it shall appear on the trial that it was fair or fraudulent, like conveyances by the husband lo other persons ; on which trial the comparative value of the estate granted and of the consideration will be taken into § 44. The writer (Mr. Atherly) before cited, observes on this part of the subject, that even if the authorities had not so well settled the point, there could be no reason for holding that a settlement was had, merely because it arose out of an arrange- ment between husband and wife, for inquiring into the validity of ^osi-nuptial settlements, the true and only point of inquiry is, whether the settler has received a fair and reasonable con- sideration for the thing settled, so as to repel the presumption of fraud. That the wife takes a fee instead of a life estate, is of no importance, excepting in ascertaining the comparative value, with a view to the honesty of the transaction.^ § 46. We find that it is equally well settled, that a considera- tion of this nature passing from the wife to the husband, is sufficient to support a settlement upon children : and this may as well be done by giving the wife an inheritable estate, as by a direct settlement upon them. We are quite satisfied with the justice of this principle of ' Levintz, 146 ; so in McCann v. Letcher, 8 Ben. Monroe, 326-7. 2 Levintz, 146. ' Ibid. So, therefore, in McCann v. Letcher, 8 Ben. Monroe, Ky. Reps. 327, where a wife agreed to relinquish her right of inheritance in lands more valuahle for the benefit of the creditors of the husband, provided certain . slaves less valuable were secured to herself and children, and in drawing the deed the draftsman through mistake embraced creditors as beneficiaries. The same was corrected by decree, conforming it to her original agreement. [19] CHAP. III.] POSTNUPTIAL CONTEACTS OE SETTLEMENTS. [§ 47 law, and are glad to find it rests on authority as well as reason ; for under the restrictions mentioned, creditors cannot be in- jured, the husband's estate, to which they may look, not having been impaired substantially by the arrangement.' § 46. In Fleming v. Fleming,^ where the wife proposed, and it was deemed proper and equitable to free the real estate (several houses and lots and out lands) from the incumbrance of her potential right to dower therein, to allot to the wife a certain interest in fee, or for life in a portion of the property mortgaged to creditors ; and the value of the entire real es- tate embraced in the mortgage was $11,930, and personalty $2348 25 ; in all $14,278 23, of which the Circuit Court allot- ted to the wife absolutely (in value of) $3700 00.. On appeal, the court held that the creditors had a right to complain that too much was allowed her; for the estimate thus placed upon the wife's inchoate and potential right of dower wanted but a small sum of being equal to one-third absolutely of the real estate in fee, whereas if her interest were actual, and not merely potential, she would only have taken one-third of such realty for life. The extent of the value of such an interest, in the absence of a consent value, should have been ascertained by proof, taken before the allotment, as to the ages and health of the husband and wife, their relative chances for longevity, and all other facts requisite to enable the court to approximate the real value in fact of such an interest. § 47. The mode indicated for ascertaining the value of a life estate, in Davis v. Logan's Heirs,' was by reference to annuity tables, or by the opinion of witnesses of experience and obser- vation acquainted with the property and the (wife) tenant for life. Here the difficulty of determining the value of such an interest is enhanced by its being merely a potential right, and another element than those of cases of the valuation of a com- plete life estate must enter into the inquiry, that is, the age and ' Levintz, 146. « MSS. opin. C. A. Ky. June 12, 1856. ' 5 Ben. Monroe, 343 ; same principle in Western v. Short, 12 Ben. Monroe, 155 ; Hill V. Golden, 16 Ben. Monroe, 554. [20] § 48] POSTNUPTIAL CONTRACTS OE SETTLEMENTS. [CHAP. III. health of the husband and -wife, and the relative chances for longevity of the husband and wife, all which should be ascer- tained as near as possible, and the estimate be made accordingly. § 48. And when thus ascertained, to permit the wife to elect whether she will accept the value of such estimate in property, or its proceeds in lieu of her interest, or permit its sale subject to her potential interest, and await the death of her husband to assert her right of dower.^ By the mandate of the court in Wallace v. Marshall," Mar- shall was required to convey to Mary Ann "Wallace by deed, with special warranty, an undivided fourth part of the property in contest, subject to such life estate therein as he acquired by the conveyance of her husband, Benjamin Wallace. It appears that Wallace was married previous to the act of 1846, and his conveyance was made prior to that time. Although by virtue of his marriage he may not have had a life estate in the real estate of his wife not reduced to posses- sion, still he certainly had a right to the issues and profits during the coverture. When that ceases, whether by the death of the wife, or by a dissolution of the marriage contract, which is a divorce from the bonds of matrimony, his right of possession, and of receiving the profits depending wholly upon the con- tinuation of the marriage, terminates with it.' That may have continued during his life, and that right Marshall certainly ac- quired by his conveyance. By the consent of all parties the Eoper property was sold and the proceeds were to be divided according to their respective shares and interest in the property ; Mary Ann Wallace had an interest therein subject to such life estate as Marshall acquired by his purchase. The value of this interest she claimed not only in right of her inheritance, but upon the ground that she was entitled to it as a settlement in equity out of the estate she possessed at ' See in "Vartie v. Underwood, 18 Barbour's N. Y. Reports, 562, this in- terest was protected, as stated anterior sec. 12, just as done in Wallace v. Marshall, 9 B. Monroe, 159 ; but afterwards, on her petition, the Court of Ap- peals of K7., at its summer term, 1855, gave it all to her, see sec. 48, posterior. "SB, Monroe, 159. » 5 Dana, 257. [21] CHAP. III.] POSTNUPTIAL CONTRACTS OE SETTLEMENTS. [§ 50 the time of her marriage. Upon either ground we think she was entitled to the value of such interest^ to be paid to her, or a trustee appointed by the court for her benefit, out of the pro- ceeds of the sale of the Boper property. The court should have required an assessment to be taken of the value of her interest in the one-fourth of the proceeds of the sale of the aforesaid property, subject to the right of her husband as indicated herein, which right he conveyed to Mar- shall, and upon ascertaining such value, have caused the same to be paid to her or a transfer made for her benefit.^ § 49. So, where the husband owned a tract of land and sold it for $3000, and induced the wife to join him in the deed to the vendee, relinquishing her potential Tight to dower, promising to and having the vendee to execute -Ms note therefor to her for $500 as for her portion, and the value of her said interest, and then threatened to abandon her, and was attempting to sell and dispose of her said $500 so given her, and to compromise with and release it to the vendee upon her bill.' Sustained by the principles of Swain v. Ferine, 5 Johnson Ohy. Eep. 482 ; Petty V. Petty, 4 Ben. Monroe, 218 ; "Wallace v. Marshall, 9 Ben. Mon- roe, 158. Belief was given and she secured in the same.^ § 50. Equity will not enforce or compel a feme covert to convey nor aid a fine or a defective relinquishment thereof.' Nor she should not be disturbed in her potential right to dower without an opportunity to defend; nor should a husband be tempted by a peremptory decree to coerce her to a relinquishment of ' For the mode of determining it, see sections 47-8 and note 2 ; before this was done she died, and the proceeds were then decreed to her children and heirs, as ruled to be proper. Greer's Heirs i'. Boone, 5 Ben. Monroe, 557 ; Clancy on Rights, 532, seo. 22i, posterior, chapter "Children's Equity." » Wallace D. Marshall, MSS. opinion, C. A. Ky. Oct. 1855. <> The nature of a dower right is a right and title to and in the property ; the husband cannot convey so as to defeat it. It belongs not to him, but to the wife ; her title is paramount to that of her husband. Adset «. Adset, 2 J. C. Rep. 457. « Ingram v. Ingram, and see Marshall v. Hutchison, 5 Ben. Monroe, 307 ; and MoCann v. Letcher, 8 Ben. Monroe, 327. * 1 Story's Equity, seo. 177-8. [22] § 52] POSTNUPTIAL CONTRACTS OE SETTLEMENTS. [CHAP. III. dower.i Nor can a void or defective act of a feme covert be made effectual by legislation against her pre-existing and vested rights.' § 51. A settlement made by the husband after marriage upon his wife and children, is obligatory upon himself, as well as other persons claiming as volunteers from or through him. If the husband has been guilty of fraud, and the case does not merely rest on the parol promise, the fraud will take the case out of the statute, and then the settlement will be obliga- tory.' A settlement made after marriage in pursuance of articles made or letters written hefore marriage, is valid even against creditors and purchasers, marriage being a valuable considera- tion'' where the terms and obligations fully appear to manifest their intention.' § 52. To support a settlement, however, made after marriage in pursuance of provisions contained in letters purporting to he written hefore the marriage, in a contest with creditors of the grantor, proof should be adduced to show that the letters bear their true date, or, at least were received before the marriage* without which a more secure covering for fraud, and a more ready way to sustain all settlements or marriage agreements, made after marriage, could not be invented. Do the words of the Kentucky statute" that "no covenant or agreement, made in consideration of marriage, shall \)e good against creditors, &c., unless the same covenant or agreement be acknowledged, &c., and be lodged with the clerk for record," re- quire that letters written hefore marriage promising a settlement. ' Coleman and Others v. Coleman, 3 Dana, 486-7. Edrington v. Harpey, 3 J. J. Marshall, 360. See also Maekey v. Proctor, 12 B. Monroe, 433. Prewitt v. Graves, 5 J. J. Marshall. Hardin and Wife v. Smith's Ex., 7 B. Monroe, 392. See note at end of chapter. ' Pearce v. Patton, 7 Ben. Monroe, 170. » 1 Strange, 236 ; Chy. Precedents, 526 ; 1 Peer Wm. 620. « Kinnard v. Daniel, 13 Ben. Monroe Ky. Rep. 499, section 11, ante, and authorities there cited. s 12 Vesey, 67. « Jones V. Henry, 3 Litell. 433. ' 1st Stat. 439, M. and B. [23] CHAP. III.J POSTNUPTIAL CONTRACTS OR SETTLEMENTS, [§ 54 after marriage, be recorded, to support a settlement to be made in pursuance thereof, or does it merely apply to the writings which vest or settle the property?' § 53. Mr. Eoper'^ says, that settlements made after, but pur- suant to written articles entered into, or letters written before the marriage, are unimpeachable by any persons, whether they be creditors or subsequent purchasers, for the contract of marriage is a valuable consideration and establishes the settlement against every one. But if the agreement lefore marriage be verbal only, and the settlement after marriage be made in pursuance of it, whether such agreement will support the settlement against creditors appeared to be undecided. Mr. Eoper,' however, considered that such a promise merely would not support the settlement against creditors, because the statute of frauds is express, that no action shall be brought whereby to charge any person upon any agreement made in consideration of marriage, unless some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person by him lawfully authorized.'* § 54. Where the settlement is made after marriage, and the husband be not indebted at the time, subsequent debts will not defeat it. It having been ruled" that if there be a voluntary conveyance of real estate, or chattel interest by one not indebted at the time, although he afterwards becomes indebted, if that voluntary con- veyance was for a child, and no particular evidence or badge of fraud to deceive or defraud subsequent creditors, that will be good ; but if any mark of fraud, collusion, or intent to deceive subsequent creditors appears, that will make it void, otherwise not, but it will stand although he afterwards becomes indebted.' ' Kinnard v. Daniel, 13 Ben. Monroe, Ky. Rep. 500. ' On Real Property, vol. i. page 303. » Roper on H. & W. 307. ' But althougli it be in parol, may he not confirm it afterwards ? For a like principle as to the statute of frauds, see Clary «. Marshall, 5 Ben. Monroe, Ky. Rep. 269-70. ' Townseud v. Windham, 2 Vesey, Sr. 11. 6 12 Vesey Jr. 155 [24] § 55] POSTNUPTIAL CONTEACTS OR SETTLEMENTS. [CHAP. III. § 55. Says Chancellor Kent,' a settlement after marriage may be good, if made upon a valuable consideration. As wbere the settler has received a fair and reasonable con- sideration in value for the thing sold, so as to repel the pre- sumption of fraud. And the amount of the consideration must be such as to bear a reasonable proportion to the value of the thing settled, and, when valid, these postnuptial settlements will prevail against existing creditors and subsequent purchasers.* In Shumate v. Ballard,^ where a negro, given by a father to his married daughter, Mrs. B., in 1849 or 1850, was exchanged in 1850 with F. for a negro woman and child, and F. executed a bill of sale to the husband of Mrs. B. for the negro woman and child. In 1856, a child of the negro woman, born since 1850, was sold under an execution against the husband of Mrs. B., and S. became the purchaser. In 1857, Mrs. B. sued S., alleging the foregoing facts, and that the bill of sale to her husband was made without her knowledge or consent; that she had no knowledge of its existence until a short time before the institution of her suit ; that S. had possession of the slave, and refused to surrender to her the possession, &c. S. answered, denying any knowledge of the claim or title of Mrs. B. at the time of his purchase, alleging that he made the purchase in good faith, &c., and claiming title to the negro under it. Seld, that the bill of sale from F. to B. (the husband) invested him with the legal title to the negro woman and her children, and that the legal title and equity acquired by S., who was an innocent purchaser, without notice of the claim of Mrs. B., must prevail against her latent equity — especially after the lapse of more than six years from the date of the bill of sale, during which time the slaves remained in the possession of the hus- band, and claimed and controlled as his own. The court said, " That the bill of sale executed by Francis to Ballard invested the latter with the legal title to the slaves, Sarah and her children, is undoubtedly true, and is in effect conceded by the appellee in the petition. Assuming then the ' 2 Com. 173. ' Kinnard v. Daniel, 13 Ben. Monroe, 500 ; see anterior sections 11 and 12, chapter 2. » 1 J. P. Metoalf, 31. CHAP. III.] POSTNUPTIAL CONTBA0T3 OB SETTLEMENTS. [§ 56 truth of all the facts upon which she bases her equity— let it be conceded that Fayette was hers absolutely under the gift irom her father; that she negotiated the exchange with her brother without any agency on the part of her husband, and that the bill of sale to him was made without her knowledge and against her wishes, the question arises what effect are these circum- stances to have upon the title acquired by an innocent and lona fide, purchaser, for full value, and without any knowledge of the circumstances mentioned, and consequently without notice of the claim or equity attempted to be founded upon them, espe- cially after the lapse of more than six years from the date of the transaction, during the whole of which period the slaves remained in the possession of the husband, and by him claimed and controlled as his own? "We are aware of no principle or authority upon which a Ment equity, thus derived, can be allowed to prevail, even in favor of a married woman against a party who has fairly acquired the legal title, and whose purchase has invested him with an equity at least equal to the one relied upon."' § 56. And if the husband and wife had united in the sale of the boy Fayette, in the manner provided by the act of 1846, and if the proceeds of the sale had been invested by them in the purchase of other slaves, the title, as in this case, being made to the husband, a court of equity might possibly, on the ground of mistake, in such case regard the husband as trustee for the wife, so far as to compel the personal representative of the former, upon his death, to surrender the slaves to the wife, as against the claim of his distributees. We would not, how- ever, be understood as settling the principle, even to this extent. But certainly the equity of the wife would not be recognized and upheld as against the claims of innocent purchasers from the husband without notice,^ or of creditors. The legislature could certainly never have contemplated that the protection afforded the meritorious class intended to be benefited by the acts of 1846 and 1852, should operate so injuri- ously to the just rights of another and not less meritorious class.^ See Arnett v. Cloudas, 4 Dana ; Wilson v. Wilson, 9 Ben. Monroe, 277. Ibid. » IJ. P. Metoalf, 31. [26] § 59] POSTNUPTIAL CONTEACTS OE SETTLEMENTS. [OHAP. Ill, § 57. The execution by a feme covert of a bill of sale jointly with her husband, without any acknowledgment or privy exa- mination, for slaves sold by him which were acquired by her since the acts of 1846 and 1852, is of no validity, and does not preclude her, after his death, from asserting her right to them.* In such case, as there was no fraud in the sale, which failed only because the bill of sale was not executed according to law, the purchaser cannot recover from the estate of the husband the present value of the slaves. The criterion of damages for the breach of warranty of title contained in the bill of sale is the sum paid, and interest from the time the purchaser is charged with hires for the slaves.' § 58. The statutes which authorize husband and wife to exe- cute deeds of conveyance prior to the Kentucky acts of 1846 and 1852, relate exclusively to real estate; and, therefore, a deed executed in 1840 by husband and wife, transferring to the grantee their reversionary interest in the slaves of the wife, is not effectual for that purpose, though acknowledged by her and recorded. Where the same deed embraces land, it will operate to pass her interest therein to the purchaser. In Endors v. Williams,' it is said, that, "according to the settled doctrine of the Court of Appeals, the possession of the father is the possession of the infant child, where the latter resides with him, and is invested with the title to personal chat- tels in the possession of the former,' consequently the gift of a slave was not rendered fraudulent, merely because the posses- sion of the slave remained with the donor." * § 59. A voluntary conveyance is deemed fraudulent in law as to the antecedent creditors of the donor. Its validity, how- ever, as to subsequent creditors, depends upon the intention with which it was executed; as to them, it is not fraudulent ' Johnson and Wife v. Green, 17 B. Monroe, 118 ; and Johnson and Wife v. Jones, 12 Ben. Monroe, 333 ; Shumate v. Ballard, 1 J. P. Metoalf, 31. 2 IJ. P. Metcalf, 81. ' 1 Mete. Ky. Eep. 350 ; Hord v. Hord, 5 Ben. Monroe, Ky. Eep. " Eenningham o. McLaughlin, 3 Mon. 30, and Forsyth -o. Kreakbaum, 7 Mon. 97. = So held in Wash v. Medley, 1 Dana, 269, and 14 B. Monroe, 535. [27] CHAP. III.] POSTNUPTIAL CONTRACTS OE SETTLEMENTS. [§ 61 merely because it is voluntary, but if they wish to avoid it, they must prove the existence of a fraudulent intent.' § 60. A distinction, however, has been made so far as credi- tors are concerned, between a voluntary conveyance to the grantor's children and to strangers. In the former case, where there is no actual fraudulent intent, and the gift is a reasonable advancement to the child considering the donor's condition in life, and there is ample estate left unincumbered for the pay- ment of his debts, then such conveyance will be valid even against antecedent creditors.^ The construction of the statute of 27th Elizabeth has been more favorable to subsequent pur- chasers than that given in the 13th Elizabeth as to creditors. As purchasers do not trust to the personal responsibility of the vendor as creditors do to the personal responsibility of the debtor, but advance their money upon a conveyance of a spe- cific article of property, and upon the faith of acquiring a good and valid title to it, they are regarded as having a higher equity than general creditors.^ § 61. The doctrine in England is, that a voluntary convey- ance is in law fraudulent and void against a subsequent pur- chaser for a valuable consideration, even with notice." But the American courts have not carried the doctrine to the same extent, or dealt so rigorously with conveyances merely voluntary. In several of the States it has been held that a voluntary conveyance is only presumptively fraudulent against a subsequent purchaser for a valuable consideration without notice; that is, that a subsequent sale to a bona fide purchaser without notice, is evidence that a prior voluntary claim was fraudulent.' The same doctrine was held by the Supreme Court of the United States, in the case of Oathcart et al. v. Eobinson." ' 3 J. J. Marshall, 290 ; 5 J. J. Marshall, 555 ; 4 Dana, 253 ; ib. 1 J. P. Met- calf, 31 ; 1 Dana, 269. ^ Trimble v. Eatliffe, 9 B. Mon. 514 ; and see Doyle v. Sleeper, 1 Dana, 534. ' Salmon v. Bennett, 1 Conneotiout Rep. 525, 528. * Doe V. James, 16 East, 212, 213 ; Buckle v. Mitchell, 18 Vesey, 111. ' Hudnal v. Wilder, 4 MoCord, 295 ; Bank of Alexandria v. Patton, 1 Robin- son, "Virginia, 500 ; 1 J. P. Metoalf, Ky. Rep. 351. « 5 Peters, 265, 281. [28] § 64] POSTNUPTIAL CONTEACTS OE SETTLEMENTS. [CHAP. III. § 62. The cases of Mason and Wife v. Baker et al.,' and of Lewis V. Love's Heirs,' are supposed to favor the doctrine that a voluntary conveyance, as against a subsequent purchaser for valu- able consideration, with or without notice, is fraudulent in law. In both of these cases, however, the conveyances were decided to be actually fraudulent in fact, and were not held to be fraudu- lent merely because they were voluntary ; and being actually fraudulent they were deemed void as against a subsequent pur- chaser for a valuable consideration, even with notice. In the last named case, it is said in the opinion, that, " as a purchaser, the mere fact that the deeds are voluntary, renders them at least prima facie fraudulent and void as to him." Nothing is, how- ever, said in this connection of the effect that notice would be entitled to in such a case in determining the question of fraud.' § 63. The tendency of the modern decisions in this, as well as in the courts of most of the other States, has been to leave the question of fraud open to investigation to be determined by all the /octe which tend to show the actual intention with which the conveyance was executed. The doctrine of constructive fraud has not been very favorably received, and has been strictly confined to that class of cases to which it had been pre- viously authoritatively extended. Such also is the tendency of modern legislation on the sub- ject ; and with regard to voluntary conveyances, it is enacted by the Kentucky " Eevised Statutes,"^ that they shall not, on that account alone, be void as to purchasers with notice. Whether they are to be deemed void where the purchase is made without notice, the statute does not declare. The case must, however, be decided on the law as it existed at the time the voluntary conveyance and subsequent purchase were made, without regard to the provisions of the " Eevised Statutes." § 64. According to our exposition of that law, a voluntary conveyance should be deemed valid against a subsequent pur- chaser with knowledge of its existence, that is, such a convey- ance should not, merely because it is voluntary, be regarded as ' 1 Mar. 208. ' ^- 1 J- P- Metoalf, 31. ' 2 B. Mon. 345. * Page 363. [29] CHAP. III.] POSTNUPTIAL CONTRACTS OB SETTLEMENTS. [§ 6o fraudulent and void as to a subsequent purchaser witli actual notice Such a purchaser is pot deceived or misled, nor does he make his purchase under the belief that he is acquiring a clear title to the property. He is not entitled to be considered as a bona fide purchaser. Having knowledge of the previous voluntary conveyance, he should be regarded as combining with the grantor to defraud the donee. He has therefore no claim to the protection which the law affords against voluntary conveyances. If, however, the conveyance be not only volun- tary, but actually fraudulent, then a subsequent purchaser has a right to disregard it altogether, and will not be affected by notice. He is under some obligation to respect the rights of an honest donee who has acquired the property without any fraud on the part of the donor, but under none whatever to respect a fraudulent conveyance, which confers no rights on the grantee, so far as creditors and purchasers are concerned.^ § 65. A voluntary conveyance should, however, be deemed presumptively fraudulent against a subsequent purchaser for a valuable consideration, without actual notice. It should not, in our opinion, be deemed absolutely void ; but the question of fraud should be left open for investigation. The subsequent sale, however, raises a strong presumption of fraud in the gift, and imposes the burden of proving that it was made bona fide on the person who claims under the voluntary conveyance. Constructive notice arising from the recording of the convey- ance, is not sufficient to aSect the conscience of the purchaser. Actual knowledge is necessary for this purpose. He must be apprised of the existence of the gift, otherwise he cannot be said to combine with his vendor to avoid it. He may be as much deceived and cheated by the sale to him, where the voluntary conveyance is recorded, as where it is not recorded. There may be constructive notice where there is no actual notice. The only reason why a voluntary conveyance is not deemed fraudulent as to a purchaser with notice is, because having knowledge of its existence, he is himself not regarded as a bona fide purchaser. But that reason ceases where he is ignorant of ' Enders v. Williams, 1 J. P. Metoalf, Ky. Rep. 352; Verplank v. Sterry, 12 Johnson, 527, sec. 21, ante. [30] § 67] POSTNUPTIAL CONTRACTS OE SETTLEMENTS. [CHAP. III. its existence, and does not apply where he has constructive notice only. This seems to be the doctrine which was recog- nized in the foregoing case of Lewis v. Love's Heirs,' although it is not very distinctly announced. § 66. In the case of Cathcart v. Eobinson,^ decided by the Supreme Court of the United States, it was held that Eobinson was a purchaser without notice, although it appears from the statement of the facts that the voluntary conveyance had been duly recorded in the proper office. But independently of any adjudication on the subject, the reason for discriminating be- tween a purchaser with and without notice, necessarily leads to the conclusion that actual notice is indispensable,^ and with- out it the distinction cannot be sustained. The rule of caveat emptor does not apply. A voluntary conveyance is prima facie fraudulent as to a subsequent purchaser for a valuable consider- ation.'' If, however, he purchases with notice of the gift, he cannot avail himself of this presumption. The law, however, does not so far favor the donor, as to exact from the purchaser the exercise of any diligence to ascertain the condition of the title, consequently he is not affected by constructive notice. It follows, therefore, that unless Enders at the time of his purchase had actual notice of the previous gift, that as to him it must be regarded as presumptively fraudulent, and it devolves on the plaintiff to remove the presumption of fraud, by proving that the gift was fair, and bona fide. § 67. Where a man who had fallen into dissolute habits, conveyed a tract of land to his father-in-law, by a deed in which a valuable consideration was expressed. The grantee having previously paid part of the grantor's debts, then paid the residue, and received and supported his wife and children, who were soon compelled by his neglect to abandon him, and finally devised the land in trust for them, and died. After which, a tavern-keeper living near the grantor's residence, having an ' 2 Ben. Monroe, 345. * 5 Peter's Rep. 265, and 9 Curtis, 332. » Myers v. Saunders, 1 Dana, 519 ; Fletcher v. Peck, 6 Craneh, 135. ' 2 Ben. Monroe, 345. [31j CHAP. III.J POSTNUPTIAL CONTEACTS OB SETTLEMENTS. [§ 69 execution against him, returned no property—filed a bill_ in chancery to subject the land to that and other debts— charging that the conveyance was voluntary, and made to hinder and delay creditors, and especially to defraud him. But it appeared that the debts, although alleged to have existed before the con- veyance, were in fact created afterwards, and chiefly for liquor, furnished at the complainant's tavern, in violation of his license bond, and his moral obligations to the debtor; who having become a wretched sot, spent the most of his time there in idleness and drunkenness, to his own ruin and the great distress of his family. It further appeared that there was collusion between him and the complainant, to subject the land for amounts made up between them of claims partly fictitious, with an understanding that the debtor should have a portion of the proceeds. Although, to some extent, the demands set up in the bill were probably pure, as the plaintiff refused to separate them from the rest, they must share the same fate. The complainant was entitled to no relief, and his bill was dis- missed with costs.' § 68. For claims having their origin in moral turpitude, and a known violation of a penal statute, a chancellor will not afford relief. He who is guilty of iniquity, cannot have equity. Even at law, relief will not be afforded for demands based upon, or having their origin in, a violation of the law.'' Much less will a chancellor afford relief in such cases in whose tribunal a complainant should present himself clothed with equity, and fairness in the demands set up by him.' § 69. Where the mother of a married woman conveyed to her a house and lot, and in part furnished the timber to repair it. The husband had the repairs done, and paid for them. These repairs were necessary to render the premises habitable. Held ' Hanson, &c., v. Power, 8 Dana, 26. ^ Armstrong v. Taylor, 6 Cond. R. TJ. S. 298 ; Willilte v. Roberts, 4 Dana, 174; Steele ■«. Curie, lb. 382, 8 Dana, 25 supra. ' Hanson v. Power, 8 Dana, 95. [32] § 70] POSTNUPTIAL CONTRACTS OR SETTLEMENTS. [CHAP. III. that the property was not liable for any interest therein to sale to satisfy a judgment creditor of the husband.* For, although it appears from the evidence that the mechanics who did the work had been paid hy ike husband, and that he purchased and paid for the materials to a small amount, and that the value of the lot had been enhanced by the improve- ments to the amount of four or five hundred dollars, it does not appear that the improvements were more than necessary to put the house and lot in habitable and decent condition. The pay- ments were partly made in his own medical bills, and altogether, as may be inferred, by the proceeds of his practice as a physi- cian, which may be presumed to have been very limited. There is no evidence that he has any other house for his family but that which he had repaired on the land of his wife. Nor does it appear that he could furnish any other for a less sum than he has expended for repairs. His expenditures upon this subject have not been extravagant, nor such as furnish any ground of a design or intentional purpose of thereby defrauding his credi. tors. He seems to have done little more in putting this house and lot in tenantable condition, than was necessary to perform his obligations to support his wife and family. § 70. And to charge the wife's property with the expense for the benefit of creditors, would seem to be little better than to make it liable for his expenditures in furnishing food and cloth- ing for her and her children. Besides, the repairs cannot be separated from the building so repaired, without rendering the premises uninhabitable, and turning the wife and children out of doors, and in fact, out of her own house and lot. Nor could the materials and labor constituting the repairs be otherwise made available to a purchaser, except by introducing him as a co-tenant. We know of no equitable principle which would authorize the chancellor to grant the relief asked for. With the certainty of such results, and especially where there has been no intentional wrong in which the wife, whose claim is as meritorious as any other, may be presumed to have participated. The case of Athy v. Knott' does not authorize the relief prayed ' Robertson ». Hoffman and Wife, 15 B. Monroe, 82. « 6 B. Monroe, 29. 3 [33] CHAP. III.] POSTNUPTIAL CONTEACTS OE SETTLEMENTS. .[§ 73 for in such a case. That case, and the case of Brown v._ Steele^ show with what caution and with what regard to the rights ot the owner of the property, the power of subjecting the improve- ments placed upon it, by a debtor having a temporary right, is to be exercised by the chancellor. The case of Fetter v. Wilson, &c.,' is a strong illustration of this regard for the rights of a wife owning the real estate by deed subsequent to the Kentucky acts of 1846 and 1852, protecting the rights of married women, even where the improvements placed thereon by the husband are sought to be subjected by the mechanics themselves, to pay- ment of the debts of the husband incurred in placing them there, owing to the restrictions of the Kentucky statute of 1852.' § 71, This case is stronger in favor of the wife ; and, as the land itself cannot be sold for the debt of the husband, not having been charged with it by the written act of himself and wife," and as the improvemfents cannot be sold without great injury to the wife, and as there is no actual fraud which may he imputed to her, there is no equitable ground for the relief sought, and the petition must be dismissed.^ § 72. So as to children. The common law looks with an indulgent eye upon parental sympathies,^ and, therefore, it permits a father who is indebted to appropriate his money to the education and comfortable maintenance of his children, in defiance of the claims of credi- tors, provided his motives are pure, the provision suitable, and the mode of securing it appropriate and eligible. It does not presume a false or fraudulent motive for a prudent and allowable provision for those who have paramount claims to protection and sustenance from parental bounty. § 73. As indulgent as the common law is to the claims and obligations incident to the parental relation, it will not permit » 10 B. Monroe, 323. 2 12 B. Monroe, 90 ; and Cole v. Pell, 2 J. P. Metcalf. » Sec. 1, page 387. * Ibid. ' Robinson v. Hoffman and Wife, 15 B. Monroe, 82. * Plowden Com. 307. [34] § 74] POSTNUPTIAL CONTRACTS OR SETTLEMENTS. [CHAP. III. it to be prostituted or perverted as an instrument of fraud. It jealously scrutinizes every transaction in whicli an indebted father ostensibly provides for his wife and children without pay- ing his just debts, and if it can find in the provision itself, or in any extraneous circumstance, a sufficient reason for strong suspicion of fraud, or trust, it will not suffer the creditor to be eluded by any such artifice, but will consider the parties just as they would have stood had a conveyance been made to the father, as it probably would have been had there been no creditors to defeat. Mr. Roberts says, that "where the object of such original conveyance is the advancement of children, without any parti- cular badges of fraud, the children will prevail in equity against the creditors of the parent, even though he were indebted at the time of the purchase." What did he mean by " badges offraud^^ in such a case? He undoubtedly meant such circumstances as would induce the belief that the land had been bought by the father, and conveyed to the children, not for their exclusive benefit, but for the benefit altogether, or in part, of the indebted parent himself; and that, therefore, fraud on the father's credi- tors, and not a provident bona fide advancement to his children, was the t?-ue motive of his conduct.' § 74. Property purchased and paid for by a parent, and con- veyed to his children, cannot be reached by a subsequent creditor of the parent, by the rules of common law. Nor are such pur- chases within the statutes against fraudulent conveyances.^ The reason is obvious : the consideration thus advanced could never have been a fund to which the subsequent creditor looked for the satisfaction of his demand, and therefore it is impossible that such creditor could have been defrauded by the trans- action.^ And in the case of Shaw v. Standish,* which was decided in 1695, it is said by counsel in argument : "That there is a difier- '■ ^ '■ " ' '■- m • ■■■' ■■..— — ..-. ' Doyle V. Sleeper, 1 Dana, Ky. Eep. 539 ; 6 B. Monroe, 29. 2 Shumate v. Ballard, 1 J. P. Metcalfe 31, sectiong 55—67. ' Doyle V. Sleeper, 1 Dana, Ky. Rep. 547. * 2 Vem. 326. [35 CHAP. III.] POSTNUPTIAL CONTEACTS OR SETTLEMENTS. [§ 76 ence between purchasers and creditors, for the statute of 13 Elizabeth makes not every voluntary conveyance, but only fraudulent conveyances, void against creditors; so that as to creditors it is not sufficient to say the conveyance was volun- tary, but they must show that they were creditors at the time the conveyance was made, or, by some other circumstances, make it appear that the conveyance was made with intent to defraud or deceive a creditor.'" § 75. The same subject has undergone repeated discussions in the Supreme Court of the United States. The doctrine esta- blished in that court is, that a voluntary conveyance made by a person not indebted at the time, in favor of wife or children, cannot be impeached by subsequent creditors upon the mere ground of being voluntary. It must be shown to have been fraudulent, or made with a view to future debts. On the other hand, the mere fact of indebtedness at the time does not, per se, constitute a substantive ground to avoid a voluntary convey- ance for fraud, even in regard to prior creditors. The question whether it is fraudulent or not is to be ascertained, not from the mere fact of indebtedness at the time alone, but from all the circumstances of the case. And if the circumstances do not establish fraud, then the voluntary conveyance is deemed to be above all exception.^ § 76. "A deed from a parent to a child, for the consideration of love and affection, is not absolutely void as against creditors. It may be so under some circumstances. But the mere fact of be- ing indebted to a small amount would not make the deed fraudu- lent, if it could be shown that the grantor was in prosperous circumstances and unembarrassed, and that the gift to a child was a reasonable provision according to his state and condition in life, and leaving enough for the payment of the debts of the grantor. The want of a valuable consideration may be a badge of fraud ; but it is only presumptive, not conclusive evidence of it, and may be met and rebutted by evidence on the other ' Sexton e. Wheaton, 8 Wheaton, 229 ; and S. C. 5 B. R. Curtis' Reports of the Supreme Court, a99. ' Ibid. [36] § 78] POSTNUPTIAL CONTRACTS OR SETTLEMENTS. [CHAP. III. side." And this language, it should be remembered, was used in a case* where the conveyance was sought to be set aside by persons claiming as judgment creditors upon antecedent debts. The same doctrine has been asserted by the Supreme Court of Connecticut, in a case which hinged exclusively upon the same point.' § 77. So much is the wife supposed to be under the control of her husband, that the law will not permit her estate to pass by a conveyance executed by herself, until sh6 has been exa- mined apart from her husband by persons in whom the law confides, and has declared to them that she has executed the deed freely and without constraint.' Lord Hardwicke maintained the same opinion in the case of Townshend v. Windham, reported in 2 Yesey, 1. In that case he said : "If there is a voluntary conveyance of real estate or chattel interest, by one not indebted at the time, though he afterwards become indebted, if that voluntary conveyance was for a child, and no particular evidence or badge of fraud to deceive subsequent creditors, that will be good; but if any mark of fraud, collusion, or intent to deceive subsequent credi- tors appears, that will make it void, otherwise not ; but it will stand, though afterward he become indebted." § 78. A review of all the decisions of Lord Hardwicke will show his opinion to have been, that a voluntary conveyance to a child by a man not indebted at the time of the real and lona fide conveyance, made with no fraudulent intent, is good against subsequent creditors. The decisions made since Lord Hardwicke's time maintain the same principle. In Stephens v. Olive,* Edward Olive, by deed dated the 7th of May, 1774, settled his real estate on himself for life, remain- der to his wife for life, with remainders over for the benefit of his children. By another deed of the same date he mortgaged the ' Sexton ». Wheaton. ' Story's Equity, voL i. sec. 405. ' Sexton V. Wheaton, p. 398, a Decision of the Supreme Court of the United States, 8 Wheaton, 229. * 2 Bro. Ch. Eep. 90. [37] CHAP. III.] POSTNUPTIAL CONTEAOTS OR SETTLEMENTS. [§ 80 same estate to Philip Mighil, to secure the repayment of five hundred pounds with interest. On the 6th of March, 1775, he became indebted to George Stephens. The suit was brought by the executors of George Stephens to set aside the convey- ance, because it was voluntary and fraudulent to his creditors. The Master of the Eolls held : " That a settlement after marriage in favor of wife and children, by a person not indebted at the time, is good against subsequent creditors ; and that although the settler was indebted, yet, if the debt is secured by mortgage the settlement is good." § 79. In the case of Lush v. Wilkinson,' the husband con- veyed leasehold estate in trust, to pay, after his decease, an annuity to his wife for life; and after her decease, the premises charged with the annuity for himself and his executors. A bill was brought by subsequent creditors to set aside this con- veyance. The Master of the Eolls sustained the conveyance, and, after expressing his doubts of the right of the plaintiff to come into court without proving some antecedent debt, said : "A single debt will not do. . Every man must be indebted for the common bills of his house, though he pay them every week, It must depend upon this, whether he was in insolvent circum- stances at the time." § 80. In the case of Glaister v. Hower,= where the husband, who was a trader, purchased lands and took a conveyance to himself and wife, and afterwards became bankrupt and died, a suit was brought by the widow against the assignees, to esta- blish her interest. Two questions arose: 1. Whether the estate passed to the assignees under the statute of 1 James I., c. 15? and if not, 2. Whether the conveyance to the wife was void as to creditors? The Master of the Eolls decided both points in favor of the widow. In observing on the statute of 13 Elizabeth, he said • "That the conveyance would be good, supposing it to be per- fectly voluntary; for," he added, "though it is proved that the husband was a trader at the time of the settlement, there is no evidence that he was indebted at that time ; and it is quite set- [38] «Ves.l99. § 82] POSTNUPTIAL CONTRACTS OE SETTLEMENTS. [OHAP. III. tied that under that statute the party must be indebted at the time." On making an appeal to the Lord Chancellor this decree was reversed, because he was of opinion that the conveyance was within the statute of James, though uot within that of Eliza- beth. § 81. In the United States it may be considered as the pre- vailing and the settled doctrine, that a provision for a wife or child is a sufiQciently meritorious consideration to lead to the enforcement of an executory agreement or trust, at least where the instrument is under seal. This point was decided in Mclntire v. Hughes,^ in the case of an agreement under seal by a father to convey land to his son ; and in Kentucky, since a statute has placed sealed and unsealed instruments of an exe- cutory character upon the same footing, the same principle has been established in relation to agreements not under seal.^ In Dennison v. Goehring,^ it was thought that an executory agreement to create a trust in favor of the children of the grantor, was upon a consideration that would be recognized in equity as against the grantee. "Natural affection," said Gibson, C. J., in that case, "though not a valuable, is a meritorious con- sideration ; on the foot of which an agreement by a father to secure a provision for his child has been enforced in equity, by reason of the obligation of parents to provide for their offspring. , § 82. "Thus a covenant with a son to renew a lease was en- forced in Husband v. Pollard,'' and in Goring v. Nash,' a father's covenant to settle an estate on his ~son was especially decreed. In such a case a legitimate child is not held to be a volunteer, though it was held in Fursaker v. Eobinson," that an illegitimate child is so. In corroboration of the principle may be mentioned those cases in which equity has supplied the surrender of a ' 4 Bibb. Ky. Reports, 186. ' Mahan, &o. v. Mahan, 7 B. Monroe, 579, 582 ; see also Bright's Ex'rs ». Bright, 8 ib. 194, 197. ' 7 Barr, 175, 179. < Cited 2 P. W. 467. ' 3 Atk. 186. " Free, in Chan. 475, [39] CHAP. III.] POSTNUPTIAL CONTBACTS OE SETTLEMENTS. [§ 84 copyhold, and a defective execution of a power in favor of a legitimate child." § 83. But this principle of a meritorious consideration reaches only to the cases of a -wife and child ; it does not extend to any collateral kin, nor probably to any descendant more remote than a child. In Buford's Heirs v. McKee, &c.,' a bill was filed to have specific performances of a voluntary covenant by an uncle to convey land to his nephew ; but it was dismissed for want of a sufficient equitable consideration. "In exercising the discretion, which a chancellor retains to himself, over appli- cations for the specific performance of contracts," said the court in that case, "it has always been deemed an essential prerequi- site that the contract he is called on thus to enforce should be based upon either a valuable or what is termed a meritorious consideration. The moral obligation to provide for a wife or child constitutes such a meritorious consideration as will induce a specific performance of an agreement in their favor, and some of the cases have declared that grandchildren come within the rule ; but we have been able to find no authoritative case where a voluntary agreement has been specifically enforced in favor of a collateral relation, such as a nephew, unless there was some other controlling circumstance besides the mere affinity." § 84. The cases where relief has been extended in favor of collaterals, either expressly recognize the doctrine that some additional circumstance is necessary to call forth the interposi- tion of the chancellor in their behalf, or by the stress laid upon such controlling circumstance indicate clearly that such is the rule of the court. ... In an analogous class of cases it seems to be well established that a defective surrender will be supplied only in favor of three descriptions of persons, viz., creditors, wife, and children. In Haye v. Kershow,^ also, it was decided that a covenant for 2i future conveyance, without a valuable considera- tion, in favor of the issue of a nephew and niece, will not be enforced in equity. "In the exercise of the discretion which courts of equity still have in decreeing specific performances of ' 1 Dana, 107. 2 1 Sanford, 258. [40] § 85] POSTNUPTIAL CONTRACTS OB SETTLEMENTS. [CHAP. III. agreements," said the Assistant Vice Chancellor, "they uniformly decline to enforce voluntary covenants. . . . Covenants and agreements founded upon a good consideration, oftentimes ex- pressed as a meritorious consideration, are upheld and enforced specifically in this court. And it has been a mooted question whether collateral consanguinity, as that of a brother, nephew, niece, &c., was not a meritorious consideration. It is now set- tled upon authority that it is not. ... In the case before me there was no moral obligation to provide for a wife and children, or a parent ; and there was, therefore, no such meritorious con- sideration as will induce the court to decree the performance of the covenant in the sealed instrument in question." The observa- tion of Chancellor Kent, in Bunn v. Winthrop,^ that the duty of providing for a mistress and illegitimate child formed a con- sideration must be understood of the case then before the court, and as meaning a consideration to support an executed trust. § 85. It seems also that in the case of an executory agree- ment equity will not decree specific performance, even in favor of a wife or child, where there is not a valuable consideration, unless the instrument is under seal. The doctrine appears to be that there must exist a valid obligatory contract at law as a preliminary basis to any equitable interference, and then that equity grants its extraordinary aid only where there is an actual consideration, valuable or meritorious. In Mclntyre v. Hughes,'' the court said : " Whether if the contract was not by deed a court of equity would, where there was no other consideration than that of blood, decree its specific execution, 'is not material to be decided; nor is the court to be understood as having given any opinion upon that point." But, as before remarked, since the distinction in executory agreements, between sealed and unsealed, has been abolished in Kentucky, unsealed agreements, where the consideration appears in the agreement, will be en- forced.' In Caldwell v. Williams," it is declared that although some agreements, which are termed voluntary, are executed by ' 1 Johnson's Ch. 329, 337. ' 4 Bibb. 186, 188. " Mahan, &c. v. Mahan, 7 B. Monroe, 579. * 1 Bailey's Ectuity, 175, 176. [41j CHAP, III.] POSTNUPTIAL CONTEACTS OE SETTLEMENTS. [§ 85 a court of equity when made in favor of a wife or children, yet this is only where the agreement is under seal, which imports a consideration, and renders it valid at law ; and that there is no instance of an agreement being enforced, which is not only voluntary in the equity sense of the word, but is also nvdem pactum at law.^ Note. — In Indiana, by the Revision of 1852, dower is abolished and the widow takes one-third absolutely by descent. But the cases of Clem v. Strong, and Franty v. Hanon, presented complaints for dower in lands sold before the revision, by husbands without the wife's relinquishments and husband's death since, where of course they could not claim by descent, and by an opinion of the Supreme Court they were held to be barred. But the court suspended the same. It would seem that the dower right, though not consummated, was such a potential inchoate vested right as could not be thus barred by such a provision according to Dash v. Vancleek (7 Johnson) as a vested right,' and being also a valuable one according to BuUard v. Briggs, 7 Pickering, 533 ; Swaine v. Ferine, 5 Johnson, Chy. Rep., and maybe protected by suit before the death of husband, Petty v. Petty, 4 B. Monroe, Ky. Rep., and that too in view of the merely prospective intent of that revision, from sees. 2 and 4, and also 35. 1 Indiana Rev. Stat, of 1852, 431. It was thereby intended, in all cases thereafter, to increase the widow's portion from an estate for life merely, to an estate in fee, inasmuch as during all her life she is not permitted to acquire property for that green old age tending down life's declining steep, and it is the duty of the law, having surrounded her with disability, to make some such provi- sion for her. But not to deprive her of it by recognizing such unconstitutional legislation as it was held to be in Fatten v. Fearce, 7 B. Monroe, Ky. Rep. 170. ' Hare and Wallace's cases in equity, vol i. p. 247 ; see also Pennington, Adm'r of Patterson v. Gitting's Ex'or, 2 Gill & Johnson, 209, 218. ^ Fearce v. Fatten, 7 Ben. Monroe, 170. [42] § 88] FRAUD UPON MARRIAGE CONTRACT. [CHAP. IV. CHAPTER IV. FRAUD UPON MARRIAGE CONTRACT. § 86. To render a disposition made by the wife of her pro- perty, lefore marriage, fraudulent against her husband as being in derogation of his marital rights and just expectations, it must be made pending a treaty, and in contemplation of marriage, and without the knowledge of her intended husband. Both these elements must enter into the transaction, to constitute it a fraud against the right of the husband.' § 87. If the husband be apprised before his marriage of the disposition his intended wife has made of her property, he can- not, in any just sense of the term, be said to have been deceived by it. If, notwithstanding such knowledge, he deems it proper to consummate the marriage contract, the act is voluntary on his part, and he cannot afterwards complain that the disposition which his wife made of her property is a fraud upon his mari- tal rights. If the intended wife should secretly, and without the assent of the man she had contracted to marry, dispose of part of her property, the marriage contract would thereby be avoided, and proof of such a secret disposition of her property would be a valid defence, if an action were brought against the intended husband for breach of the promise of marriage.' § 88. It is true that it was held by the court in the case of Hobbs V. Blandford,^ that a conveyance of the wife's estate between the time of the engagement and the marriage, was a fraud on the marital rights of the husband, although he ' Cheshire v. Fayne, 16 Ben. Monroe, 627 (overruling the case 7 B. Monroe, 469) ; McAfee v. Ferguson, 9 Ben. Mon. 476 ; Wilson v. Daniel, 13 Ben. Mon- roe, 351. ' Bright on H. & W., vol. i. chap. 13, page 221 ; Atherly, chap. 20, page 319, 27 Law Library ; Taylor v. Pugh, 1 Hare, 612. 3 7 Monroe, 469. [431 CHAP. IV.] FBAUD UPON MAEEIAGB CONTEACT. [§ 90 had notice of the conveyance before the marriage took place. But that decision cannot be sustained either on principle or authority.* § 89. Ignorance of certain facts known to the other party, but concealed or misrepresented, is an essential ingredient to constitute fraud. If all the facts are known there can be no deception ; aad if there be no imposition or deception, there can be no fraud. In conformity with this view it has been re- peatedly decided, and seems to be the settled doctrine of the courts both in England and in the United States, that if the husband has notice or knowledge of the settlement or alienation before the marriage, the transaction cannot be impeached.^ In the last named case, the Chancellor said : " It might, per- haps, be affirmed, that except in Goddard v. Snow, no case exists of a conveyance by the wife, though without considera- tion, being set aside simply because made during a treaty of marriage, and without the knowledge of the intended husband. Yet it is certain that all the cases in which it is approached, treat the principle as one of undoubted acceptance in this court, and it must be held to be the rule of the court to be gathered from a uniform current of dicta^ though resting upon a very slender foundation of actual decision, touching the simple point. J.S, however^ everything depends upon the fraud supposed to le prac- tised upon the husband, it is clearly essential to the application of the principle, that the husband should, up to the moment of the marriage, have been kept in ignorance of the transaction.^ § 90. But the question still arises in this case, whether the husband should be regarded as having been kept in ignorance of the transaction, or whether the knowledge of it at the time it was imparted to him, should be deemed sufficient to repel the legal imputation of fraud. As it is essential to constitute the ' Ashton V. MoDougald, 5 Barr, 56 ; Griggs v. Staples, 13 Iredell, 32 ; see also My. & K. 619, referred to in vol. i. White's Leading Cases in Equity ; Hare & Wallace's Notes, p. 348 ; 16 Ben. Monroe, 627. * Terry's Adm'rs v. Hopkins, &o., 1 Hill's Chan. 15 ; MoClure v. Miller, 1 Bailey's Equity, 108 ; Keoher & Wife v. Ashley, &o., Grattan, 332 ; St. George 1.. Wake, 1 My. & Keene, 610, 7 Com. Eng. C. E. 188. ' See note 1. [M] § 91] FEAUD UPON MARRIAGE CONTRACT. [CHAP. IV. fraud, that the husband should remain ignorant of the trans- action until the marriage ceremony has taken place, it follows as a necessary consequence of it, that his knowledge of it at any time previous to that period, will operate to prevent him from impeaching the conveyance on the ground of fraud. In refer- ence to his knowledge the law fixes but one period, and that is the time of the marriage ; it does not draw any nice distinctions with respect to the length of the time before that period, but considers any previous time as sufficient, and leaves the hus- band to act for himself, according to his own sense of justice and propriety. Until the marriage actually takes place, he is at liberty to retract, and the law justifies him in so doing, if he be notified that his intended wife has, without his assent, made a settlement of her estate, that will be prejudicial to his marital rights. But, if with this knowledge acquired at any time before the marriage actually takes place, he voluntarily complies with his previous engagement, he cannot complain that he was deceived, nor will the transaction be deemed to be fraud upon his rights as husband. § 91. In Wilson v. Daniel,' where a widow being about to marry C, by his consent conveys slaves to the separate use of herself and children for her life, remainder to her children ; she did not marry C, but afterwards married W., who was not addressing her when the deed was made: Meld, that W. was not a purchaser, that the conveyance was no fraud upon his marital rights, and could not be set aside to the prejudice of the child- ren, though the wife consented. For marriage operates as an absolute gift to the husband of such personal property as the wife possesses at the time of the marriage ; and as to her slaves, since the act further to protect the rights of married women,' it operates to give him a contin- gent interest only. As to the character in which the husband acquires his rights in the property of his wife.' In the case of Coleman v. Waples,^ it was decided that the husband acquired his rights to his wife's property by virtue of the marriage, and not as purchaser. He must take subject to ' 13 B. Mon. 349. " See Clancy on Eights. « Sec. 1, Ky. act of 1852, p. 389. ' 1 Harrington, 196. [45] CHAP. IV.] FBAUD UPON MAERIAGE CONTRACT. [§ 92 any equities or incumbrances on the property at the time of the marriage, unless they were created in fraud of him. Such conveyance is good between the parties, and valid as to him whether recorded or not, or whether he had notice or not, unless by the making thereof he was defrauded. § 92. This case differs in principle from that of Hobbs v. Blandford," and the case of McAfee v. Ferguson, &C.'' In those two cases the conveyances were set aside upon the ground that they were made after the treaty for marriage had com- menced, and was then in contemplation. In this case no treaty for marriage had commenced, none was in contemplation be- tween the complainant and said Nancy at the time the convey- ance was made. Indeed, they were not acquainted with each other at that time from anything that appears in the record. Nancy then contemplated marrying Eobert Creed. The proof shows that the deed was made with the consent and. approval of Creed, so it was not intended as a fraud upon him; and even had it been so intended, the complainant could not avail himself of a fraud intended to operate on another, and not upon himself. In "Eoper on Property,'" the case of the Countess of Strath- more V. Bowes"* is referred to, and the following language used: " Lady Strathmore, upon the death of her first husband, became entitled to considerable property under her father's will. She, in the year 1777, being about to marry a person named Grey, con- veyed, with his consent, and for the purpose of providing for her children, all her real and personal property to trustees, for her sole and separate use, notwithstanding any future coverture. Having altered her intention with regard to Mr. Grey, she, a few days after the execution of the settlement, married the de- fendant Bowes, who insisted in a cross bill filed by him in the cause, that he not having notice of the settlement, it was fraudu- lent, and in derogation of his marital rights. But the deed was established against him because there was no fraud practised ' 7 Mon. 469. ' Vol. i. 163. 2 9 B. Monroe, 475. * 2 Bro. C. C. 345 ; 1 Vesey, Jr. 22. [46] § 93] FRAUD UPON MARRIAGE CONTRACT. [CHAP. IV. upon him, he not having been in contemplation of any of the parties at the time the settlement was executed.'" This case of Strathmore v. Bowes' is analogous, in every essen- tial feature, to the one under consideration. It cannot be said, therefore, that the deed of trust to John Daniel is in fraud of the marital rights of the complainant. In the answer of Mr. "Wilson she unites in the prayer of her husband to set aside the deed, but it cannot be done at her in- stance, simply because she has changed her mind upon the sub- ject. The deed was made freely and voluntarily by her, at her own instance ; it creates rights in third persons,' and is merito- rious in itself, and she cannot have it destroyed at her pleasure.'' § 93. The chancellor has not power after the husband shall make a settlement on the wife in pursuance of an antenuptial agreement, and she dies without issue (who were to be regarded as interested in that settlement), at the instance of collateral heirs he set aside that settlement for their benefit ; the parties cannot be placed in statu quo.^ The utmost the chancellor had ever done has been at the instance of the wife or children to reform a settlement, make it conform to the ante-nuptial agree- ment, or require it to be so made; and this has never been done unless the agreement was produced.' Note. — For cases to enforce antenuptial contracts, see Petty v. Petty, 4 Ben. Monroe, Ky. Rep. ; Kinnard v. Daniel. 13 Ben. Monroe, Ky. Rep. ' Mr. Roper places within the rule Howard v. Hooker, 2 Chy. Cases, 81 ; 1 Equity Cases Abridged, 59 ; Carleton v. Earl of Dorset, 2 Vernon, 17 ; Cotton V. King, 2 P. Williams, 359. 2 2 Bro. C. C. 345 ; 1 Vesey, Jr. 22. ' Wilson V. Daniel, 13 B. Mon. 349. * As In Gault and Wife v. Trnmho, 17 B. Mon. 682; Story's Equity, sec. 7 to 93. ' McQueen on Husband and Wife, Law Lib. vol. Ixvi. p. 252 to 255 ; Atherly on Marriage Settlements, 117,66 vol. Law Library. 8 Newland on Contracts, 342; Cordell u. McKill, 3 Atk. 290 ; Ambler, 215. [47] CHAP, v.] BKEACH OF MAEEIAGE CONTRACT, [§ 95 CHAPTER V. BEEACH OF MAEEIAGE CONTEACT, § 94. In BurnLam v. Cornwall,' it was held that a jury is not authorized to infer a promise of marriage from visits, and such respects on the part of the man as are usual in courtships ; nor that a promise was made within a year before suit was brought, from the fact that such visits continued to a period within a year from that time. There must be an offer of performance of the marriage con- tract before any action can be maintained for a breach of pro- mise of marriage. It is not sufficient that there shall have been a course of attentions on the part of the male evincing affection, but a jury must be satisfied that there was a serious promise, or offer of marriage, accepted as such. § 95. In actions for breach of marriage contract, it is not in- dispensable that there be direct evidence of an express promise to marry. It may be evidenced by the unequivocal conduct of the parties, and by a general yet different and reciprocal under- standing between the friends and relations, evinced and corro- borated by their actions, that a marriage was to take place. In the case cited above,' there being no evidence of an en- gagement or mutual promise to marry, there was, of course, no evidence of there being any time or place fixed on between them for the marriage to take place. And although it be proved that the plaintiff was ready to marry the defendant, this imposed on him no legal obligation to marry her, nor any liability for not marrying her. Even if it appeared that her inclination to marry him was induced by his attentions to her, ' 16 Ben. Monroe, Ky. Report, 288, " Ibid, [48] § 97] BREACH OF MARRIAGE CONTRACT. [OHAP. V. there must still be a promise to marry on his part, to entitle her to recover damages for his failure, however reprehensible, to meet her just expectations founded on his own conduct. Nor is it sufficient that there should be a promise on the part of the male — there must be a mutual engagement to marry. Where the promise or offer of the male has been proved, it has been held that the mutability of the promise or engagement may be proved by showing that the female demeaned herself as if she concurred in and approved of his promise or offer.^ But without proof of an offer or promise on his part, even her de- claration to a third person in his absence that she was willing to marry him, would be wholly incompetent to prove a promise on his part. Such evidence is not admissible as proof of his promise, § 96. It is true that to establish a promise even on the part of the male, it is not necessary that there should be direct evi- dence of an express promise in totidem verbis} The author referred to, says it may be evidenced by the unequivocal con- duct of the parties, and by a general, yet definite and reciprocal understanding between them, their friends and relations, evi- denced and corroborated by their actions, that a marriage was to take place. § 97. In the case of Wightman v, Coates,' it is said by C. J. Parker, in an able and interesting opinion on the subject, that a mutual engagement " may be proved by those circumstances which usually accompany such a connection." But it is evi- dent from the context that in making this remark he had par- ticularly in view the proof of a promise on the part of a female, and in that case the evidence of a promise by the male was of a decisive nature. In a note to the same case (page 5) is to be found an extract from the case of Honeyman v. Campbell,* ii which the question as to the proof by which a promise of the ' Chitty on Contracts, 551, and the cases there cited ; 3 Salk., 16, 64 ; 3 Carr. & P. 553. * Chitty on Contracts, 536. '' 15 Mass. Reports, 1. * 5 Shaw & Weston, 144; 2 Dow. & Clark, 282. 4 [49] CHAP, v.] BKEACH OF MAEEIAGE CONTBACT. [§ 99 kind may be established, is satisfactorily scrutinized by tbe Lord Chancellor, who, among other things, says : " If I were at nisi prius, trying it with a jury, I should inform them that they must be satisfied that there was a promise — a serious pro- mise — intended as such by the person making it, and accepted as such by the person to whom it was made." And this, as it seems to us, is the only safe ground on which to place the cir- cumstantial proof of such a promise. It is not sufficient that there has been, on the part of the male, a courtship — that is, a course of particular attentions evidencing affection — but the conduct and actions of the parties, and the attendant circum- stances must be such as to satisfy the jury that there was a serious promise or offer of marriage accepted as such. § 98. Mutual promises to marry may doubtless be inferred from the visits of the male to the female, and his declarations that he had promised to marry her.' But expressions to third persons of an intention to marry another, not in the presence of the latter, do not amount to a promise to marry,' though with other circumstances they tend to prove one. There being in this case no proof of any offer or request at any time on the part of the plaintiff to the defendant that they should be married, and none from which such an offer or re- quest could be legitimately inferred by the jury, there was a fatal defect in the plaintiff's case, even if a promise to marry, either generally, or in reasonable time, or when requested, had been proved.' And the motion for a nonsuit should on that ground have prevailed. § 99. And as this proof was not afterwards supplied, there must be a reversal on that ground. But as the case must go back for a new trial, it is necessary to notice the instructions given, or at least the principles on which they seem to be based.'' The first instruction authorizes the jury to infer from the ' Southard v. Rexford, 6 Cowen, N. Y. 254. * Coleman v. Cottingham, 8 Carr. & P. 75. ' Fible V. Caplinger, 13 B. Mon. 464 ; Burks v. Shain, 2 Bibb, 341. • Burnham v. Cornwell, 16 B. Mon. 287—289. [50] § 100] BEEAOH OF MAEEIAGE CONTRACT. [CHAP. V. visits of defendant to the plaintiff, and from such respects on his part as are usual in courtships or in making matrimonial en- gagements, a promise of marriage on his part, &c. The second authorizes them to infer that such a promise to marry was made within one year (the limitation to the action by law, and on which the defendant relied) if such attentions are as usual on the part of a gentleman offering matrimony to ladies continued up to one year. The first instruction makes courtship alone evidence of a promise to marry, and the second is apparently based upon the first ; neither of them declares either that there must have been a promise seriously made and accepted, or that the jury must be satisfied that such was the fact. The fourth instruction is based upon the hypothesis that there being a pro- mise on the part of the defendant, within a year, &c., to marry the plaintiff, which might, of course, be inferred as authorized by the first and second instructions, if there was also an offer on the part of the plaintiff to consummate the marriage, of which latter fact there was no evidence, they should find for the plain- tiff, unless, &c. This instruction is infected with the error of the first and second, and is also erroneous in assuming that there was evidence of an offer by the plaintiff to consummate the marriage. The fourth instruction is also subject to the objec- tion, that it refers to the jury, and as a ground of enhancing the damages, the question of the defendant having, by reason of his promise to marry the plaintiff, seduced her, of which fact there is no evidence, and which not being averred could not be proved.^ The fifth and last instructions are subject to the same objection as the third and fourth, and are more objectionable than either. § 100. Marriage is a valuable consideration.* And where it forms any part of the consideration of a conveyance, the amount of pecuniary consideration becomes immaterial.^ Courts of equity will not judge according to strict rules of law on a gift of lands causi matrimonii prohcuti.* ' 2 Bibb, 343. ' Churchman v. Harvey, Annbler, 340. ' Preble v. Boghurst, 1 Swanston, 319. * 2 Atkyns, 202. [51] CHAP, v.] BREACH OF MAEEIA6B CONTEACT. [§ 102 Marriage is a sufficient consideration eaj^Josi/acto for convey- ances.' § 101. In Maryette Wells v. Padgett,^ the plaintiff brought suit for breach of marriage promise. It was proved that Pad- gett had contracted to marry her, and afterwards seduced her. The counsel for the plaintiff insisted that her seduction was an aggravation of the damages, and it was claimed that the jury should give the plaintiff" enough, over what they otherwise would award, to pay for her expenses in bringing up the child. The jury found a verdict for the plaintiff for $650, and the defendant moved for a new trial. The court said : " In an action by a lady for a breach of pro- mise of marriage, it is not necessary for the purpose of making out the mutual promises, which are requisite to support the action, to prove that the plaintiff by words consented to accept the defendant. The jury may infer such consent from the cir- cumstances of her making no objections at the time, and from her receiving visits from the defendant as suitor, &c. It would be indelicate to expect that she should consent in words. No doubt the jury must be satisfied that there were mutual pro- mises. The jury have so found in this case, and I am of opinion that there is evidence from which they may be inferred."^ § 102. In this case the only remaining question deserving consideration is the exception to the judge's charge. He charged the jury that if they found from the evidence that the defendant's promise to marry the plaintiff was made with a view to seditce her and then abandon her, and that the defendant by means of the engagement to marry her had seduced her, the seduction under such circumstances would be in aggravation of the broken promise ; and the jury would be at liberty on that account to give an increased verdict. But if the defendant had seduced the plaintiff before the promise to marry, then the seduction ' Sterry v. Arden, 12 Jolins. ; Sterry v. Arden, 1 Johnson, Chy. Eep. 262. See also sections. ' 8 Barbour, N. Y. 323. = Daniel v. Bowles, 2 Carr. & Payne, 563 ; 12 Eng. Com. Law, 268 ; 12 Peter- son, Abi. 567. [52] § 103] BEEACH OF MAERIAGE CONTRACT. [OHAP. V. would lessen tlie plaintiff's claims to damages, and render it a mere nominal amount. After a careful examination, I am satis- fied tliat the question raised by the judge's charge has not been settled by the courts of New York. At least there is no re- ported case that I have been able to find which determines the question. I find, however, that this question has been passed upon by several of the State courts of the Union. In the case of Paul V. Frazier,! Chief Justice Parsons said : " As the law stands, damages are recoverable for a breach of marriage pro- mise, and if seduction has been practised under color of that promise, the jury will undoubtedly consider it as an aggrava- tion of the damages." § 103. It has been expressly adjudged in Mississippi, that in an action for breach of marriage contract, seduction may be given in evidence to aggravate the damages." The same doc- trine has been held in Tennessee.' The Supreme Court of Kentucky held the same doctrine in the case of Buck v. Strain,'' and the Supreme Court of Indiana adjudged the same in the case of Whalen v. Layman.' A different doctrine has been advanced in Pennsylvania.® On the contrary, it is said,^ that if seduction has been practised under a promise of marriage, the jury will consider it an aggravation of damages.' The question not having been settled by the courts of this State (N. Y.), it becomes necessary for us to consider it. There are two objections raised to allowing the seduction to aggravate the damages in an action for a breach of marriage promise* The first is, it is said the parties are in pari delicto; and the second is, that the action for seduction is given to the parent, or to him who stands in loco parentis. The first objection, in my opinion, is not sound. In the first place, the female and ' 3 Mass. Eep. 73. '' Green v. Spencer, 3 Miss. Eep. 318 ; Hill v. Manpin, Id. 323. 3 2 Overton's Rep. 233. < 2 Bibb's Eep. 241. 6 2 Blaekf. Rep. 194. ^ See the cases of Weaver v. Baobert, 2 Barr's E. 80. ' In 7 Amer. Com. Law, 20. " Citing the cases of Paul v. Frazier, 3 Mass. E. 37, and Conn v. Wilson, 2 Over. E. 233. [58] CHAP, v.] BREACH OF MAEBIAGE CONTRACT. [§ 105 her seducer do not stand on equal grounds. She is the weaker party, and the victim of his acts, and the seduction has been practised upon her under the false color of a promise of mar- riage which he never intended to perform. They are not equally guilty.' § 104. Where seduction is accomplished through a promise of marriage which the seducer never intends to perform, it is a fraud on his part, and I cannot but think it is an abuse of lan- guage to say that the parties are in pari delicto. And the objec- tion that the parent, or he who stands in hco parentis, has his action for the seduction, is equally untenable. The loss of service is the gist of the action, when brought by the parent. It is true the loss of service may be well said to be almost a fiction in this action, when it is made the foundation of damages; for the real substance of the action is the debauching the child and depriving the parent of her society, and the consequent dis- honor and distress which it brings to the parent and family. The child's loss of character, and dishonor, and anguish, and distress of mind, do not constitute the basis of the parent's claim for damages.^ § 105. The action for breach of marriage promise is given to afford an indemnity to the misused party for the temporal loss which that party has sustained in not having the contract ful- filled ; and this has always been held to embrace the injury to the feelings and affections, wounded pride, and the loss of mar- riage. Now it seems to me that all of these things are greatly aggravated where seduction has been accomplished under the false color of a marriage promise, and that here is a proper field of damages in this action, which is untouched by the parent's action for seduction. Faley says : " The injury resulting from seduction is threefold — to the woman, to her family, and to the pub- lic" Again he says : " The injury to the woman is made up of the pain she suffered from shame, or the loss she sustains in her reputation and prospects of marriage, and of the depravation of her moral principle." It seems to me that here is a broad field ' Wells V. Padgett, 8 Barbour, N. Y. 323. 2 2 Phil. Ev. 218 ; 5 Denio, 367 ; 2 Barb. Sup. C. R. 182 ; 2 Leigh's N. P. 1464. [54j § 106] BREACH OF MAEEIAGE CONTRACT. [OHAP. V. for assessing damages, whioli the parent's action for seduction does not reach, and which the law will allow the jury to occupy- in assessing damages, where the seduction has been accomplished through a fraudulent promise of marriage.' § 106. But it is said that the law in this State is settled, that in an action for seduction, by the parent, evidence that the de- fendant had promised to marry the daughter was inadmissible to enhance the damages, and that the converse should be equally good. It is true, that in an action for seduction, by the parent, he is not allowed to prove the defendant's promise to marry his daughter, and thereby make such promise the basis of increas- ing the damages.^ There is a good reason for this. The parent is not a party to the contract he seeks to make the basis of damages, and there is a party to it who has a right to claim all damages which have resulted from a breach of it ; consequently the law will not permit the parent to recover damages on account of the con- tract of marriage. The case is very different when the female brings her action upon the contract. She ought to recover all damages which she has sustained in consequence of a breach of it ; and where the fraudulent promise of marriage is made for the deceptive purpose of accomplishing the seduction, it seems to me that the seduction itself may very well be regarded as a breach of the promise in all cases followed by abandonment and a refusal to marry. This was the very case put to the jury by the judge, and I am inclined to think that his charge was right, and that a new trial should therefore be denied. The weight of authority in this country is most certainly in favor of the charge, and I think it may be defended upon principle. ' Ibid., sec. 101. 2 Brownell v. McEwen, 5 Denio, 367 ; 1 John. 297 ; 2 Wend. 459. [65] « CHAP. VI.] OF CONVEYANCES TO HUSBAND AND WIFE. [§ 109 OHAPTEE VI. OF CONVEYANCES TO HUSBAND AND WIFE. § 107. An estate conveyed to husband and wife is not a joint tenancy. Bach takes the entirety, not a share which can be severed (per taut, and not per my). The husband cannot alienate or forfeit the estate, and on his death the whole becomes hers. The Kentucky statute abolishing the jus accrescendi, does not apply to the estate of husband and wife.' § 108. This position is fully sustained not only by the opinion of Coke,' for which he cites adjudged cases before his time, and in which he is followed by all the approved text writers, and by several modern adjudications both in England and the United States. The distinction is not merely ideal and arbitrary, but is founded in a substantial difference. One of the incidents of joint tenancy was the right of each of the joint tenants to alienate his interest, thereby severing the joint tenancy, and rendering his co-tenant, tenant in common with the alienee. Whereas it is agreed by all the authorities, that neither husband nor wife can, by the common law, make any alienation of an estate conveyed to them during coverture, so as to affect the entire right of the other, on his or her surviving. § 109. The unity of person subsisting between man and wife in legal contemplation, prevents their receiving separate inter- ests in an estate conveyed to them during coverture. The estate of joint tenants is an unit, made up of divisible parts, subsisting in different natural persons ; the estate of husband and wife is an unit not made up in any divisible parts, subsist- ing in different natural persons, but is an indivisible whole, ' Rogers v. Grinder, 1 Dana, 243 ; Ross v. Garrison, 1 Dana, 37. 2 1 Inst. 1861. [56] § 111] OF CONVEYANCES TO HUSBAND AND WIFE. [CHAP. VI. vested in two persons -who are actually distinct, yet who, accord- ing to legal intendment, are one and the same. On the death of husband or wife, the survivor takes no new estate or interest ; nothing that was not in him or her before. It is a mere change in the properties of the legal person holding, not of the estate holder, and by the loss of an adjunct reducing the legal person- age to an individuality identical with the natural one. Not so, however, with regard to joint tenants. On the death of one a new interest, an additional estate, does accrue to •the survivor by the^MS accrescendi, § 110. The distinction between joint tenants and husband and wife holding by conveyance to them during coverture, is, there- fore, not merely verbal, nor can they be said to come strictly within the terms of the act of 1796. There is good reason, indeed, why they should have been omitted from its provi- sions. The jus accrescendi, as between joint tenants, was no doubt taken away because of their power of alienation, and thereby severing the joint tenancy. It was deemed unjust that the mere failure to alienate, or sever the joint tenancy during a man's life, should have the effect of forfeiting his estate to his surviving co-tenant, to the exclusion of his own heirs. This reason does not apply as between husband and wife, there being with them no such separate power of alienating or severing the estate ; and to concede such power de novo, would be to make a rule unequal and unfair in its operation, as the wife is under dominion of the husband, and can alienate nothing without his assent.' § 111. The remedy for the survivor in such cases, to recover an estate so conveyed, where legal, is complete at law; and chancery has no jurisdiction unless it be an equitable estate." Land purchased by a guardian with the funds of the ward, and conveyed to her and her husband, held, that upon the deeds of the wife the husband did not succeed to the land. Because her statutory guardian had no right to convert her estate, and change its character ; therefore she as a cestui que trust, will hold ' 1 Dana, 243. ^ Rogers v. Grider, 1 Dana, 244. [57] CHAP. VI.] OF CONVETANCES TO HUSBAND AND WIFE. [§ 113 the same right in the land as a trust. It is subject to the same rights as if no change had taken place in the wife's funds; it is the substance and not the form of the conveyance that is to be regarded.^ § 112. Where the estates of husband and wife are each to be distributed, and the same persons are to share in the distribu- tion, there is no necessity for keeping the funds separate, and having two distributions.^ Devise of slaves to husband and wife for life, with a power of disposing of them among their children during their lives, or at their death, in such a manner as they pleased : Held, that a continued loan of more than five years to one of the children rendered such slaves liable for the debts of such child to the same extent they would have been if the power had been exe- cuted formally by gift.' Land conveyed to husband and wife survives to the wife after the death of her husband, and descends to her heirs; and advancements made by husband and wife to their children during coverture, do not stand upon the same footing as if made. by the husband of his estate, and cannot affect the right of children so advanced to share in the distribution of the slaves, &c., of the father." § 113. Where property is conveyed in trust for the use of husband and wife during their joint lives, then to the survivor for life, with a power of appointment given to the survivor, it seems that an appointment by a joint deed of the husband and wife would not be a valid execution of the power, especially if the wife survived the husband, though possibly it might be if the husband survived." A conveyance of land to a feme, covert does not vest in her a separate estate in the technical sense of that phrase.* ' Moore v. Moore, 12 Ben. Monroe, 664 ; see also same principle in Samuel V. Samuel, 4 Ben. Monroe, 245. '^ Banton v. Campbell's Heirs, 9 B. Monroe, 596. ' Ewing's Heirs, &o., v. Handley's Ex'ors, 4 Littell, 349. « lb. 594. ' Boyoe v. Waller, 9 Dana, 482. " Hall, &o., 11. Sayre, 10 B. Monroe, 46. [58] § 114] OF CONVEYANCES TO HUSBAND AND WIPE. [OHAP. VI. The statute abolishing the jus accrescen^i does not apply to conveyances made to husband and wife.^ The law upon the subject of survivorship is changed by the Kentucky Eevised Statutes.^ § 114. Lands conveyed to husband and wife during coverture, survive to the wife upon the death of the husband, and descend to her heirs ; and advancements made by husband and wife of such lands during the coverture, do not stand upon the same footing as if made by the husband of his estate, and cannot affect the right of the child or children so advanced, in the slaves of the father.^ It is alleged in the bill, and is clearly deducible from the whole record, that the title to the land had been conveyed to Samuel Campbell, senior, and his family jointly, but on the equity of his wife. Whence it follows that the separate con- veyance of Samuel Campbell did not pass the title, or any part of it; and that upon his death, so much of it as had not been conveyed by both husband and wife, did not form any part of his estate, nor descend to his heirs as such, but survived to Mr. Campbell, who did not die for some year or two afterwards; It is also clearly deducible from the record, and, in fact, from the pleadings, that the slaves which were the subject of the suit had been the property of Samuel Campbell, and not of his widow. Then, so far at least as the land had been conveyed by husband and wife during the coverture, not being a part of the same estate to which the slaves belonged, any advancements afterwards made by the owner of the land to the children of herself and husband, could not affect the interest of such child- ren in the distribution of the slaves, unless by the terms of the advancement it was so provided. ' Moore v. Moore, &o., 12 B. Monroe, 663. ^ Sec. 14 (Rev. Stat. 399), which, provides that " where any real estate or slave is conveyed or devised to husband and wife, unless a right by survivor- ship is expressly provided for, there shall he no mutual right to the entirety by survivorship between them ; but they shall take as tenants in common, and the respective moieties be subject to curtesy or dower with all other inci- dents to such a tenancy." ' Banton v. Campbell's Ex'ors, 9 B. Monroe, 594. [59] CHAP. VII.] CONTEACTS BETWEEN HUSBAND AND WIFE. [§ 116 CHAPTEE YII. CONTEACTS BETWEEN HUSBAND AND WIFE. § 115. A CONTEACT between husband and wife for a separa- tion being against public policy, should not be enforced by the chancellor on her bill for that purpose.' In the last named case," where S. and his wife being mutually dissatisfied, and determined to separate, entered into a written article, by which they undertook to release each other from the obligations imposed by law by their marriage ; and by the same writing he gave and conveyed to her certain specified articles of property, including a negro girl ; they then separated, she> leaving his house, took with her the property given, and her own child. Some months after this separation, S. took the negro girl from her and sold her for three hundred and fifty dollars ; for which sum she filed her bill, claiming compensation for the slave, and a reasonable support for the child, then eight years old. No sufBcient ground being presented for a divorce, or for alimony under the statutes of this country, can she obtain relief by a suit in equity upon the contract of separation as exe- cuted between them? § 116. The principle involved is, however, of deeper conse- quence than the mere adherence to the doctrine of the common law in relation to the disability of the husband and wife to con- tract with each other, as we shall presently state. The disability itself is formed in the wisest policy, and is an essential muniment to the inviolability of the nuptial contract, and to the maintenance of the institution of marriage. The well-being of society, as well as the policy of the law, and the objects and duties of the marriage contract require, that those ' MoCrooklin v. MoCrooklin, 2 Ben. Monroe, 370 ; Simpson v. Simpson, 4 Dana, 140. * 4 Dana, 140. [60] § 117] CONTEACTS BETWEEN HUSBAND AND WIFE. [CHAP. YII. who are united in marriage should live together. The law, indeed, furnishes and can furnish no coercive remedy for enforc- ing this duty ; but, in addition to the inducements which are held out by the laws of nature and the customs of society, is this very disability to contract with each other, in the utter incapacity, by their own mere will to absolve each other from the reciprocal rights and duties which the law of their contract has imposed upon them, in the consequent dependence of the wife upon the husband, and the continued liability of the hus- band to support the wife, the law furnishes powerful motives which operate most strongly upon those who might be least moved by other considerations to the promotion of harmony and peaceful cohabitation in married life. To withdraw and diminish the force of these and other similar motives, by which reasonable people united in matrimony may be impelled by mutual forbearance to render themselves comfortable in a con- dition which they cannot change at will, is, doubtless, within the competency of the legislative power, acting through the medium of general laws. § 117. The judiciary, as we are inclined to think, has no power to move one step in advance of the legislation on the subject. It is at least restricted to that point at which its juris- diction, having been maintained by uniform judicial precedents, may be presumed to have the sanction of legislative as well as general acquiescence. The legislature of this State has, in the several acts on the subject of divorce and alimony, defined the circumstances under which the marriage contract, with its legal incidents, may, through the agency of a court of equity, be wholly or partially dissolved. But if voluntary articles of separation, such as are exhibited in the present case, are to be recognized and enforced as valid contracts in a court of chancery, it certainly would be adding by judicial authority an almost illimitable ground for partial divorce, which would greatly weaken the sanctions by which the institution of mar- riage is upheld, and would place it upon a foundation essentially different from that which the laws of the land have established. Obviously the court cannot enforce the articles merely because they are in the form of a contract, or it must enforce every agreement of that sort which comes before it; and it cannot [61] CHAP. VII.] CONTRACTS BETWEEN HUSBAND AND WIFE. [§119 enforce them on the ground that the parties ought not to remain subject to the duty of cohabitation and other marital duties, because no sufficient cause under the statute, from a total or partial release from those duties is shown to exist, § 118. Without further reference, therefore, to the particular merits of this case, we are of opinion that on the general grounds of invalidity of the contract, the want of power in the court, and the dangerous consequences which might ensue from grant- ing relief, in such cases, the complainant's bill was properly dismissed. We are aware that many cases have occurred in which a court of equity has decreed a separate maintenance to the wife upon articles of separation in which a trustee has intervened; and it may be argued that these contracts differ from the present only in form, and that their en- forcement would lead to the same consequences. There is, however, a marked difference between the two -classes of con- tracts, both in regard to their validity and the practice of the court in enforcing them. The argument ad inconvenienti, or that founded on general policy, may be all-powerful to prevent the assumption of a new and doubtful jurisdiction ; when it would he wholly insufficient to destroy a jurisdiction already established by usage and authority. § 119. By the common law husband and wife are entirely incapable of contracting directly with each other. A contract, or pretended contract, between them would be considered at law as a nullity ; its breach would furnish no ground for the recovery of damages on either side ; and to enforce such a con- tract in chancery, or to decree damages for its violation, would seem to be contrary to all the general rules by which the juris- diction and proceedings of a court of equity are determined. Besides, as a general rule, the wife cannot, even in chancery, maintain a suit in her own name; and if she must sue in that way because her husband is to be the defendant, it is at least necessary, before such an anomaly is allowed, that her right to come into the court, and the power of the chancellor to grant the relief prayed for, should be satisfactorily established upon principle and authority. The current of authority is, in our opinion, against this jurisdiction. The case of Guth [62] § 121] CONTRACTS BETWEEN HUSBAND AND WIFE. [OHAP. VH. V. Guth,' in whicTi the jarisdiotioa was asserted, seems not to have been followed, but has been disapproved in some of the cases which have been since decided.^ § 120. In Legard v. Johnson,' Lord Rosslyn considered the different decisions on this subject, and held that it was perfectly well settled that where a trustee intervenes who covenants to indemnify the husband against the wife's debts, as such cove- nant raises a valuable consideration for the contract by the husband, equity will compel the husband to execute it; as in Seeling v. Crawley, 2 Vernon, 386, where the defendant having married the plaintiff's daughter, on a quarrel between him and his wife they agreed to part, and the defendant gave a note to plaintiff to pay him £160 on demand, the plaintiff saving him harmless from any debts his wife might contract. Upon a bill by the plaintiff to compel payment the court decreed it accord- ingly, notwithstanding the defendant offered to take his wife and child home and maintain them. And although there be no such covenant to indemnify the husband against the wife's debts, equity considers the circum- stance alone of a trustee's intervening, with whom the husband makes the contract in question, to give jurisdiction to that court to enforce it. So in the cases of Fitzer v. Fitzer.'* § 121. The question on the validity of such contracts has been also considered at law, and there decided that a contract by a husband with trustees to pay an annuity to them for the main- tenance of his wife, whether it be during a present separation, or in case of a future separation with the consent of the trustees, is legal.* As against creditors equity will not enforce these contracts to their prejudice." ' 3 Brown, 614. 2 Legard v. Johnson, 3 Vesey, 361 ; Wilkes t'. Wilkes, 2 Dick, 791 ; Mad- dock's Chy. 385-388 ; and Newland on Contracts, 115-119. » 3 Vesey, 361. * 2 Atk. 511 ; Cook v. Wiggins, 10 Vesey, 191 ; cited in Newland on Con- tracts, chap. vi. 120, 121. * Gordon v. Draper, 2 Ventriss, 217 ; Chambers v. Lord Rodney, 2 East, 283. ' Taylor v. Jones, 2 Atk. 599 ; Newland on Contracts; p. 121. [63] CHAP. VII.] CON-TEACTS BETWEEN HUSBAND AND WIFE. [§ 124 § 122. If a husband be under covenant to settle money on his wife, and die intestate, her distributive share of his estate is to be regarded as part satisfaction of the obligation.^ The covenant being to leave the wife £620, her distributive portion was that sum, and was deemed a satisfaction. So if the husband be under covenant to settle lands upon his wife of a certain value, and he afterwards purchased lands and took the conveyance to himself in fee, and died without making the set- tlement, that purchase was regarded as made in performance of his covenant.^ This is upon the principle that when that is done which the decedent was under obligation to do, the court will look to the end rather than to the means of attaining it. § 123. In commenting on the doctrine of satisfaction. Judge Story says: "It is the donation of the thing, with the intention expressed or implied, that it is to be an extinguishment of some existing right or claim in the donee. It usually arises in courts of equity as a matter of presumption, where one being under an obligation to do an act, does that by will which is capable of being considered a satisfaction of it. The thing performed being ejusdem generis with that which he engaged to perform."^ § 124. Although the court will not in direct terms decree a separation between husband and wife, yet it will do so indirectly by compelling the husband to perform his agreement to pay separate maintenance. Sir William Grant, in the case of Wor- rall V. Jacob, noticed the singularity, and, after alluding to the court's refusal to carry into execution articles of separation between husband and wife, proceeded thus : " It would seem to follow that the court would not acknowledge the validity of any stipulation that is merely necessary to an agreement for sepa- ration. The object of the covenant between the husband and the trustee is to give efficacy to the agreement between husband and wife, and it does seem rather strange that the auxiliary ' Blandy v. Widmore, 2 Vernon, 710 ; 2 P. Williams, 324. ' Wilcox V. Wilcox, 2 Vem. 558 ; Qoldsmid v. Qoldsmid, 1 Swanston, 219 ; Story's Equity, see. 1006—1017. ^ Equity, see. 1099. [64] § 126] CONTEACTS BETWEEN HUSBAND AND "WIFE. [CHAP. VII. agreement should be enforced, while the principal agreement is held to be contrary to the spirit and policy of the law. It has, however, been held, that engagements entered into between the husband and a third party shall be held valid and binding, although they originate out of, and relate to, that unauthorized state of separation in which the husband and wife have endea- vored to place themselves. I am, therefore, only to repeat what Lord Eldon has said in the case of Lord St. John v. Lady St. John, viz : ' If this were res integra, untouched by dictum or decision, I would not have permitted such a covenant to be the foundation of an action or a suit in this court. But if dicta have followed dicta, or decision has followed decision, to the extent of settling the law, I cannot, upon any doubt of mine as to what ought originally to have been the decision, shake what is the settled law upon the subject.' " § 125. The cases, however, have established a distinction be- tween the decree for a separation and one for maintenance under the husband's agreement, as will more fully appear from the authorities after stated. It has been observed that a married woman is unable to con- tract with her husband, or any other person. A court of law, cannot, therefore, interfere to compel payment by the husband of an allowance stipulated to be made to his wife upon an agree- ment between themselves without the intervention of trustees. The question then arises, whether a court of equity will decree the performance of such an engagement by the husband upon his and his wife's mutual agreement to live separate, when the contract is between them alone, and is merely executory. § 126. Mr. Eoper' seems to consider that equity would so decree, except where either the husband or wife apply to the court for an appropriation of the produce of her property as maintenance, in order to enable her and her husband to carry into effect their intentions of separation, because that would almost amount to a direct decree for a separation, which is not within the province of equity. ' Mr. Roper on Husband and Wife, 289. 5 [65] CHAP. VII.J CONTRACTS BETWEEN HUSBAND AND WIFE. [§ 129 § 127. The second class of cases are those where the contract was between the husband and a third person, acting for the wife, and no indemnity was given to the husband against his liability to pay his wife's debts. Upon this subject it will appear from the cases next stated that the wife has precisely the same right as any other cestui que trust, to call for the execution of a trust created in her favor- It is a consequence from this proposition that whether the deed of separation securing to her maintenance be wholly voluntary, or be supported by a valuable consideration, as the covenant of her trustee to indemnify the husband against her debts, she will be entitled in either case to an execution of the trust.' § 128. Turner v. "Warwick^ is a case where the agreement was between husband and wife for a separation, which agree- ment was completed by demising lands to trustees in trust to apply the rents in payment of an annuity of £300 for the wife's maintenance. In a suit by the trustees against the husband and the tenants of the premises. Lord Nottingham, with the consent of the parties, ordered all arrears to be paid; and further, that the husband should not molest his wife in person, nor with any goods which she should acquire. It does not appear that the husband was indemnified against his wife's debts, and it is to be presumed that, if for any reason this transaction had been illegal or improper, his Lordship would not have made the above decree even with the consent of the parties. § 129. In Angier v. Angier' (which, it may be inferred from the decree, did not contain any indemnity to the husband against his wife's debts), the husband, by articles, agreed with a trustee to allow his wife £52 a year, and to permit her to live where she thought fit without molestation. This agreement was made while a suit by her was pending in the ecclesiastical court for separation and alimony. The allowance being in ' 13 Vesey, 443 ; 18 Veaey, 998. 2 Finch Ch. Ca. 73 ; and see Fitzer t>. Fitzer, 2 Atk. 511. 3 Pre. Ch. 496. [66] § 131] CONTEACTS BETWEEN HUSBAND AND WIFE. [CHAP. VII. arrear she filed a bill for the payment of it, and the court so decreed. Head v. Head' also falls within this class of cases. There a separation took place, and, during its continuance, the husband wrote a letter to B., the wife's father, agreeing to pay to her £400 a year, quarterly, as long as they should continue sepa- rate. Her allowance being in arrear, she instituted a suit to recover it, which Lord Hardwioke decreed her.^ A fortiori, the wife will be entitled where the husband has secured a separate maintenance by a deed conveying an estate, or a bond giving a legal right of action to the wife's trustees.' The want of a consideration is not then material as between the parties, and a court of equity will, if necessary, assist the wife by compelling the trustee to enforce the security against the husband for her benefit. § 130. This question may, probably, be thus considered : Since a married woman may dispose of personal property limited to her separate use as a feme sole, and may even give it to her husband, there appears to be no reason why she should not be competent to make it the subject of settlement upon a mutual agreement between herself and her husband for a sepa- ration.* But with respect to her other property not so circum- stanced, it appears, from Stamper v. Barker,' that a deed of separation cannot bind the property of the wife if not settled to her separate use. So far as it is her deed, it is inoperative on the ground of her coverture, and the concurrence of her friends cannot give it any additional efiect. Her property is, therefore, not affected by it, unless reduced into possession during the coverture. § 131. It is a consequence of what was before stated with regard to the wife's right to call for the execution of the trust declared in her favor in a deed of separation, and the same ' Atk. 547, 551 ; Fletcher v. Fletcher, 2 Cox, 99 ; Cooke v. Wiggins, 10 Ves. 191 ; Seagrave v. Seagrave, 13 Ves. 439. 2 3 Atk. 295 ; Yea v. Yea, 2 Dick, 498. ' See Seagrave v. Seagraye, 13 Yes. 439. • Logan ti. Birkett, 1 M. & K. 220 ; 11 Law, I. 53. « 5 Mad. 279. [67] CHAP. VII.] CONTRACTS BETWEEN HUSBAND AND WIFE. [§ 132 equity in all respects as any other cestui que trust, that if her trustee refuse to act, or the deed has been destroyed, she, in the one case, will be entitled to have the trust performed, and in the other to have the loss of the instrument supplied.* § 132. In the case of Calkins v. Long,'' the plaintiff had lived on unpleasant terms with his wife, who is the sister of the de- fendant, and she left him in consequence of alleged ill treatment, and refused longer to live with him. In order to secure to her a separate maintenance, the plaintiff gave and executed to the defendant a mortgage for |1700 upon his lands in Chenango County, with the condition that he was to pay the defendant $100, annually, as long as Martha, the plaintiff's wife, should remain either his wife or widow. If default should be made in the payment of the said $100 annually, then, and in that case, the said sum of $1700 should be collected of the plaintiff by a sale of the mortgaged premises, and for that purpose a power of sale was contained in the mortgage. The condition of the mortgage was to pay the defendant annually the sum of $100, while Martha, the plaintiff's wife, should remain either his wife or widow. There was nothing in the mortgage to show that the money was to be paid to the defendant for the use of the plaintiff's wife, or for her benefit. At the time the mortgage was given it was said that the defendant should execute back to the plaintiff a writing by which he agreed to apply the $100 annually to the support of the said Martha ; but it was under- stood by the parties that the defendant's verbal agreement thus to apply the money was quite as good, and, by consent of the parties concerned, the writing was waived; on these conditions, the plaintiff executed the mortgage in question to the defendant. A suit was conimenced by Calkins to procure a judgment from the court requiring Long to give up the mortgage, or cancel it so that he might be prohibited from collecting it. The plaintiff insisted that the mortgage could not be enforced; that there was no valid consideration to uphold it ; secondly, that as this mortgage was based on a voluntary separation between husband , ' See also BrigM's Husband and Wife, pp. 328 to 339, for many other special cases of similar contracts. 2 22 Barbour's N. Y. S. 0. Rep. 98. [68] § 133] CONTRACTS BETWEEN HUSBAND AND WIFE. [CHAP. VII. and wife, with the intention of remaining separate, it stood as a formidable obstacle in the way of a restitution of the conjugal relations of the plaintiff and his wife ; consequently the mort- gage was void upon the grounds of public policy, as calculated to interfere improperly and injuriously with the marital rela- tions. § 133. It cannot for a moment be doubted, from the evidence in this case, that the mortgage was given to provide a separate maintenance for the wife ; and that such security for a separate maintenance was demanded after she had quit the plaintiff and refused longer to live with him, in consequence of his alleged ill treatment. And that this was made the ground of a distinct claim against the plaintiff by the defendant, who is the brother of the plaintiff's wife ; and that threats of instituting coercive measures against Calkins to secure provision for her support were made by the defendant unless he would execute some instrument securing her a reasonable support. In the case of Clough V. Lambert' the deed recited that divers unhappy difBculties had subsisted, and did still subsist between the hus- band and wife, but there was no evidence to show any acts of abuse towards the wife that would in any manner justify a sepa- ration, yet the court upheld the deed; and it was positively declared that the deed being under seal was prima facie good, and the onus of impediment was with those who sought to avoid it. The court said : " For anything that appears to the contrary, there may have been circumstances alluded to under that recital, which would have justified the wife in applying to the ecclesiastical court for a divorce a mensa et thoro." So in the case under consideration, the mortgage having been given after separation for alleged ill usage, and on a claim insisted on by the wife that she was entitled to a provision on the plea of ill usage, the presumption becomes very strong that there were grounds upon which to found such a claim. The very fact that, under such circumstances, the mortgage was reluctantly given, affords a strong presumption that there was a good consideration to uphold it, found in her ill treatment and consequent claim to a separate maintenance. ' 10 Sims, 174; 16 Eng. Oh. Eep. 175. [69] CHAP. Til.] CONTRACTS BETWEEN HUSBAND AND WIFE. [§ 136 § 134. The question then arises, does the evidence in this case overcome presumption? I do not think it does. The evidence, in my opinion, is sufficient to justify a decree for separate maintenance, were not most of the acts of ill treatment pardoned by the wife, by her return to live with her husband. But, perhaps, we should not be justified in finding that these subsequent acts of ill treatment are sufficient to revive the former acts of abuse, were not this view of the case aided by the pre- sumption which is to be drawn from the fact that the wife in this case had left the plajntiff for alleged ill treatment and abuse, and refused longer to live with him on that account ; that she demanded some provision for her separate maintenance, and this mortgage was given in compliance with such demand. A condonation is a conditional forgiveness. It implies that the party will not put forth the bad conduct which is forgiven, if the husband continue to treat her afterwards with conjugal kindness ; and a subsequent repetition of personal abuse affords not a substantial cause of separation, but it revives all those which existed prior to the condonation.' And slight acts of abuse which of themselves would not sustain the bill, are a breach of this conditional reconciliation, and revive all antece- dent acts of cruelty and misconduct.' § 135. In the second place, I propose to consider whether the mortgage in question is void on the ground of public policy, for the reason that it injuriously interferes with the conjugal relations. Lord Eldon, and some of the most learned judges of Westminster Hall, have thrown doubt upon the question whether all agreements based on articles of separation between husband and wife, ought not to be held as absolutely void for the reason above stated.' And some of the judges in this country have declared similar sentiments.* § 136. The law, however, that a valid agreement for imme- ' Burr V. Burr, 10 Paige, 20 ; De Aguilar v. De Aguilar, 1 Hogg, 733 ; Bebee u. Bebee, 1 Id. 789. 2 10 Paige, 24. ' Lord St. John v. Lady St. John, 11 Ves. 562. * Beach v. Beaoh, 2 Hill, 260, 264 ; Meroein v. The People, 25 Wend. 64, 77 ; Carsou v. Murray, 3 Paige, 483, 500. [70] § 138] CONTRACTS BETWEEN HUSBAND AND WIFE. [CHAP. VII. diate separation between husband and wife, and for a separate allowance for her support, may be made through the medium of a trustee, has been too long settled both in the courts of law and equity in England and the United States, to admit of a dis- cussion of the soundness of the doctrine upon which the cases have proceeded. It was said by the learned Sergeant Williams, in arguing the case of Lord Eadway et al. v. Chambers,^ that such covenants have long been established by repeated decisions in cases where separation has actually taken place, and that all the arguments which can be urged against the soundness of the doctrine have been overruled more than a century ago; and the court held in that case that a covenant by a husband to pay a certain annual sum by way of separate maintenance for his wife in their future separation, with the consent of such trustees, is valid in law; and although Lord Eldon, two years afterwards criticized the case with great severity,'' he did not presume to overrule the decision. He says: "But if dicta had followed dicta, or decision had followed decision, to the extent of settling the law, I cannot, upon any doubt of mine as to what ought origin- ally to have been the decision, shake what is the settled law upon the subject." § 137. And the Court of King's Bench, as late as 1324, in the case of Lee v. Thurlow,' held a deed legal and linding, which, after reciting that differences existed between husband and wife, and they had agreed to live apart during her natural life, made a provision for the wife's support, and sustained an action of debt by the trustee for arrears of the annuity. The strong dis- sent of Lord Eldon in the case of St. John v. St. John," to the doctrine of that case, has led to frequent attempts, both at law and in equity, to overthrow the judgment in Eadway v. Cham- bers,' and also to question the legality of any contract between husband and wife, even through the medium of a trustee, for a separation of any kind, whether present or future. § 138. Those attempts were successively made in equity ' Reported in 2 East, 283. " 11 Ves. 637. 2 11 Vesey, 537. ° 2 East, 283. 3 2 B. & C. K. 547 ; 9 Eng. Com. Law, 174. [71J CHAP. VII.] CONTRACTS BETWEEN HUSBAND AND WIFE, [§ 139 before Sir William Grant, Sir Thomas Plumer, Sir John Leach, and before Lord Eldon himself, all of which failed; and Lord Eldon said, while speaking upon this subject in the case of "Westmeath v. Westmeath :' " The conclusion to which I have come, is, that although I might have decided differently had I formerly been one of the common law judges, yet it is impossi- ble for me now to take upon myself to say that these deeds are not good at law." Eepeated efforts were also made in the King's Bench to overrule the case of Eadway v. Chambers, and as late as the cases of Lee v. Thurlow,^ Scholey v. Goodman,' and McDowell V. Murphy,^ all of which have proved unavailing. In the former of these cases the Court of King's Bench held a deed legal and binding which recited that differences existed, and that the husband and wife had agreed to live separate during life; which deed also made provision for her separate maintenance, and the court sustained an action of debt by the trustee for arrears of an annuity. § 139. "Whatever may be said as to enforcing the agreement of separation, it is well settled both in England and this country that the provision made for the support of the wife by the arti- cles of separation will be enforced. Clancy says : " That if the husband and wife agree to separate, and do separate accordingly, and if he have agreed to pay to her an allowance during such separation, equity will exact a due performance of the latter part of the contract, namely, the payment of the allowance as long as the separation continues.'' In Baker v. Cooper' the husband had obligated himself by bond to a trustee, on separation from his wife, to pay to the trustee in trust for the wife $60 a year in half yearly payments during her life. These parties were subsequently divorced, and in an action brought for one of the instalments, it was contended that the husband was released or discharged from his obliga- tion by the divorce ; but the court held otherwise, and gave judgment for the plaintiff. > 1 Jao. C. C. 143. < 2 F. & Smith, 279. 2 2 B. & C. 547. 6 7 Serg. & Rawle, 500. 8 1 Carr. & P. 36. [72] § 142] CONTRACTS BETWEEN HUSBAND AND WIFE. [OHAP. VII. § 140. The Supreme Court of Connecticut, in the case of Nichols V. Palmer/ decided that a provision in articles of sepa- ration by which the husband bound himself to support the wife sepiarately forever thereafter was valid. The case was most elaborately considered. The Supreme Court of Massachusetts, in the case of Page v. Trufant et al.,^ held that a bond from the husband to the father of the wife for her maintenance, after a voluntary separation, was a valid contract, and sustained an action of debt upon the same. And the validity of these pro- visions for the separate maintenance of the wife where the sepa- ration has actually taken place, was recognized by this court in the case of Baker v. Barney.'' § 141. And Chancellor Walworth, in the case of Carson v. Murray et al.,'* held that an agreement made between husband and wife through the medium of a trustee for an immediate separation, and an allowance to the wife for her support, was a valid agreement. And it was said by Vice-Chancellor McCoun, in the case of Anderson v. Anderson," that this court will not interfere, by virtue of its general jurisdiction, to compel a hus- band and wife to live together when they have separated, nor force them to live apart when they are cohabiting. But if they agree to live separately, and do separate accordingly, and the husband stipulates to allow the wife a maintenance, equity acting upon the contract will enforce such contract against the husband so long as the separation continues. The same doctrine was affirmed by Yice-Chancellor Hoffman in the case of Cham- plin V. Champlin.* And the Supreme Court of Pennsylvania, in the case of Hutton v. Dewey,' again adjudged that articles of separation which provide for immediate and actual separation of husband and wife, are valid and effectual both in law and equity. § 142. I would say, therefore, with Chancellor Walworth in the case of Carson v. Murray, that I do not feel myself at liberty " 6 Day, 47. = 1 Edw. Oh. 380. s 2 Mass. R. 159. « 1 Hoff Ch. Rep. 55. 3 8 Jolin. 73 ; 2 Kent's Comm. 161, 2a edition. ' 3 Ban's R. 100. « 3 Paige, 483, [73] CHAP. VII.J CONTEACTS BETWEEN HUSBAND AND WIFE. [§ 144 to follow the dissenting dicta of some of the judges of the present day as to the policy of supporting such agreements in opposition to the law as settled by our predecessors. The doctrine of stare decisis et non quieta movere must retain some respect in the courts of this country, or the innovating spirit of the age will render very insecure the rights of persons and property. It is said, however, that, admitting this agreement to pay the $100 a year for the support of the plaintiff's wife to be valid when entered into, and while the parties were separated, it has been terminated by the husband's offer to take back his wife and live with her. § 143. The rule is this: If the separation is intended to be only temporary, then if the husband offers to take back his wife and maintain her, it puts an end to the agreement, and a court of equity will not enforce the payment of the separate allowance to the wife.' But if the separation is intended to be permanent, that is, during life, then the offer of the husband to cohabit with his wife does not put an end to the contract for separate main- tenance.^ § 144. The rule is laid down by Mr. Bell in his treatise on the law of property, as arising from the relation of husband and wife,^ page 541, as follows : "Where there is a deliberate agreement be- tween the husband and wife to live apart forever, it is not in the power of the husband at his pleasure to put an end to this state of circumstances by requiring her to return and live with him, or thereby to suspend or extinguish his covenant to make an allowance for her separate maintenance; for notwithstanding he should do so, an action would lay against him for the per- formance of his covenant." "If, however, the separation is by the agreement contemplated to be only temporary, and the provision is limited to the duration of such temporary separa- tion, the rule is otherwise." Applying this rule to the case under consideration, I do not see how the plaintiff's case is in ' Clancy, 267. ^ Clancy, 367 ; Shelford on Marriage and Divorce, 630 ; Roper on Husband and Wife, 319 ; 16 Law Lib. 186, N. S. ; Atherly on Marriage Settlements, 383 ; 2 Cox's Ch. Eep. 102 ; 2 Vern. 386. ' Law Lib., N. S., vol. 57, p. 341, Pbil. ed. [74] § 146] CONTRACTS BETWEEN HUSBAND AND WIPE. [OHAP. VII, any respect aided by his offer to take back his wife and pro- vide for her in his family. That the parties did not contem- plate a temporary separation in this case under consideration, is manifest from the provision which the plaintiff has made for the wife's separate support. He has positively agreed to pay one hundred dollars annually, so long as the said Martha re- mains his wife or widow. Such is the condition of the mort- gage from which the plaintiff seeks to be relieved by this suit. § 145. We have considered this case upon the assumption that to uphold this mortgage, there must be a valuable consi- deration appearing for the covenant of the husband to provide the wife a separate maintenance. It is said, however, by Mr. Bell,' that such consideration is not required. In speaking upon this subject, he uses the following language: "A valuable consideration for the covenant of the husband to give the wife a separate maintenance, is only necessary where the rights of the husband's creditors come into question; for, as already mentioned, where the interests of the creditors do not intervene, collateral covenants by the husband in an agreement for sepa- ration will receive effect, although the agreement be between husband and wife alone, and the covenant be voluntary on his own part, and the enforcement be asked in a suit by the wife herself;"^ speaking of these cases, he says that Lord Eosslyn, in Ledyard v. Johnson,^ and Lord Eldon, in St. John v, St. John,"* expressed doubts of the propriety of the decision in Guth v. Guth, but in Eoss v. Willoughby,* an objection of the absence of indemnity to the husband, taken by a demurrer to a suit for arrears of an annuity to the wife during separation, was over- ruled; and in Clough v. Lambert," the objection of want of consideration, the agreement being under seal, was disregarded. § 146. In Trampton v. Trampton,' where the suit was by a wife to enforce a provision made for her by her husband with- ' Law Lib., N. S., vol. 51, p. 336. 2 Citing Fitzer v. Fitzer, 2 Atk. 571 ; Guth v. Guth, 3 Bro. C. C. 617. > 3 Ves. 361. * 11 Ves. 571. « 10 Simons, 174. 6 10 Price, 2. ' 4 Beavan, 278. [75] CHAP. VII.] CONTEACTS BETWEEN HUSBAND AND WIFE. [§ 148 out any indemnity from her trustee against her debts or other consideration, Lord Langdale, after noticing the doubts ex- pressed in Guth V. Guth, observed that Fitzer v. Fitzer had never been overruled, and no case had decided that without the intervention of a trustee the husband might not voluntarily execute a deed, or create a trust in favor of his wife, and that such deed or trust might not be binding as against him, even if the benefit of it should be dependent upon an existing or continuing separation, which was the principal if not the only inducement for the whole arrangement. He adds: "As, there- fore, in other cases, a voluntary trust by the husband in favor of the wife will be effectual against him, as it will be in this, and not the less so, that by creating it, the husband has pre- vailed upon the wife to live apart from him, and waive the enforcement of her conjugal rights." He continues, at page 535:' "It has been already seen that the courts will enforce against the husband those covenants in a deed of separation between him and his wife alone, by which he makes a provision for her maintenance, although there may not be any considera- tion flowing from her." § 147. It is, therefore, obvious that when trustees for the wife are parties to an agreement for separation, effect will be given to the covenant for maintenance, although there may not be any consideration flowing from them for the covenant, such as indemnity against the debts of the wife, for she, like any other cestui que trust, has a right to call upon the trustees to perform their trust ; and should the trustees arbitrarily destroy the in- strument, the court will set it up again ; or if they refuse to enforce the trust against the husband, a suit for that purpose by the wife by her next friend will be sustained:^ § 148. It being extremely doubtful, to say the least, whether upon authority any consideration as between husband and wife could be shown to uphold the mortgage in question ; and being of opinion that if such considerations were required, a sufficient one is shown in the evidence in this case, and believing that we > 57 Law Lib. 338, N. S. ' Cook V. Niggins, 10 Vea. 190 ; Head v. Head, 3 Atk. 547. [76] § 151] CONTEACTS BETWEEN HUSBAND AND 'WIFE. [CHAP. YII. cannot set this mortgage aside as being against the policy of the law without upsetting a long series of unbroken authority both in England and this country, I do not see how we can do less than dismiss the complaint. § 149. There is no force in the objection raised that this mortgage cannot be upheld, for the reason that there were no articles of separation actually entered into between the plaintiff and his wife. This does not alter the case in the least ; for all the authorities agree that such articles themselves, voluntarily entered into, without the sanction of the court, will not be enforced either in law or equity. It is said by Mr. Bell,' that, "while it is unquestionable, upon the authority of the cases that have been cited, and of the dicta of eminent judges in other cases, that a covenant between husband and wife to live sepa- rate from each other will not be enforced either at law or in equity, it is equally certain that collateral or necessary cove- nants in a contract founded upon the motive of living separate will receive effect both at law and in equity." § 150. As to the first point, it should be borne in mind that the mortgage being under seal, imports a consideration.^ This mortgage, therefore, is founded upon a good and sufBoient con- sideration, implied by the common law from the act of sealing and executing, and a mere failure or want of consideration was not admissible to impeach a sealed instrument at common law.' Chief Justice Spencer, in the case of Parker v. Parmele, said : "It is not for me to question the wisdom of the common law in denying to a party who has entered into an agreement under his hand and seal, a right to impeach it on the ground of a want of consideration. It is sufficient that the law is so." § 151. The question then arises, has the common law been so far altered by our statute as to enable a mortgagee of real estate to apply to a court of equity to cancel the mortgage • 51 Law Lib., p. 332, N. S. 2 Chitty on Cont. 28, 7th Am, ed. ; 2 Kent's Com. 464, 6th Am. ed. ; 2 Black. Com. 446 ; Parker v. Parmele, 20 John. 130. ' Parker v. Parmele, 20 John. 130, 134, and cases above cited. [77] CHAP. VII.] OONTBACTS BETWEEN HUSBABTD AND WIFE. [§ 151 upon the ground of a want or a failure of consideration? The statute is as follows: "In every action upon a sealed instru- ment, the seal thereof shall only be presumptive evidence of a sufficient consideration, which may be rebutted in the same manner and to the same extent as if such instrument were not sealed.^ The language of this statute would seem to confine the change or modification of the common law to cases where there is an action brought upon the instrument itself, or where the instrument is made the foundation of a set-off; and if the court were right in giving the statute this limited construction in the case of Gilleland's Executors v. Failing,^ then it does not lie with the plaintiff to say in this suit that the mortgage in question is without any consideration to support it. It is not necessary, however, to place the decision of this case upon that ground, for I am of opinion that there is a sufficient considera- tion to uphold the mortgage upon the facts established by the evidence in the case. There is a valid trust created by this mortgage for the benefit of the wife. The husband is bound to support his wife ; and the relation of husband and wife is, ipso facto, a letter of credit to the wife for necessaries suitable and proper to the sphere in which she moves ; and it is well settled that if the husband and wife part by consent, and he secures to her a separate maintenance, suitable to his condition and cir- cumstances in life, and pays it according to agreement, he is not answerable even for necessaries. And the general reputa- tion of the separation will be sufficient to protect the husband.' If, however, they separate without any provision being made for her maintenance, the husband is liable for necessaries fur- nished her, suitable to his condition in life.* For aught this court can know, the husband may have deemed it to. his pecu- niary advantage to have the defendant receive one hundred dollars a year from' him, and apply it to the separate mainte- nance of his wife. The living separate is not the consideration for the payment of the one hundred dollars per annum for the ' 2 N. Y. R. S. 406, § 77. 2 5 Denio, 308. " Baker «. Barney, 8 John. 78 ; Fenner v. Lewis, 10 id. 44 ; Tood ». Stokes, 2 Calk. 116, 4 B. and A. 252. * Lookwood V. Thomas, 12 John. 248. [78] § 153] CONTRACTS BETWEEN HUSBAND AND WIFE. [OHAP. VII. support of the wife. The consideration is founded on the con- jugal relation, and the discharge of liability which the law attaches to such a provision. Take the case under consideration. Suppose it is conceded that this is a valid mortgage, and creates a valid trust by which the plaintiff is bound to pay one hundred dollars annually for the support of his wife, and that this sum shall be adjudged a proper one for her separate maintenance, and suitable to the condition and circumstances in life of the plaintiff; then he is released from all liability which the common law would other- wise attach to him for necessaries furnished her by others. So it will be seen that indemnity against debts of the wife's con- tracting is found in the law itself, which follows as a conse- quence of separation and a suitable provision for separate maintenance, and is as ample indemnity as any bond of a trustee could be. There can be no doubt in this case, that one hun- dred dollars a year, considering the limited means of the plain- tiff, is all that a court of equity would adjudge as reasonable for a separate maintenance of the wife. There can be no doubt that this is a valid trust for the wife. § 152. If the husband has made a reasonable provision for the wife's separate maintenance, and that too after they had actually separated, then the husband is released from all lia- bility for debts contracted by the wife after such separation, even if the trustees should squander or misapply the moneys appropriated to her use.' But, again, this covenant being under seal, implies a consideration, and is, therefore, prima facie good. The burden of proving a want of consideration lies on those who assert it.^ § 153. Contract before marriage that the wife shall, after marriage, hold her previous property subject to her disposition by declaration of writing in nature of last will and testament, is valid in equity without the intervention of trustees, and not annulled by the subsequent marriage.' ' Baker v. Barney, 1 John. 73 ; IE. S. 730, § 66. « Calkins v. Long, 22 Barbour N. Y. S. C. Kep. 98. 3 Crostwaight et nx. v. Hutchinson, &c., 2 Bibb, 407 ; see Culver v. Culver, 8 Ben. Monroe, 129. [79 J CHAP. VII.] CONTRACTS BETWEEN HUSBAND AND WIFE. [§ 154 Although the husband has, by an antenuptial contract, agreed that the wife may retain and control, in all respects as/ewie sole, the land and slaves owned by her before marriage, yet if she permit the husband to enjoy jointly with herself the use of the slaves she cannot recover from the representatives of the hus- band the value of the use of them by the husband.' A conveyance by husband and wife of the lands of the wife to a third person for the purpose of being conveyed to the hus- band, to invest him with the estate of the wife, is valid; and if the conveyance be made by the third person to the husband, the title will pass if made without coercion or undue influence on the part of the husband.^ Contracts before marriage relative to the distribution of pro- perty after coverture ceases are not extinguished by the mar- riage.' By contract before marriage it is agreed that if the wife sur- vives and without issue, her property possessed before marriage shall go to her; the husband at her request, and with her money, purchased slaves with the declared intention that they shall be subject to the marriage contract. These slaves shall pass by the will of the wife, she having survived the husband without issue of the marriage." Upon a contract between husband and wife for a separation, and for a separate allowance for her support, without the inter- vention of a trustee, no suit can be maintained.' "1 § 154. In 2 Story's Equity,^ it is said : " It is well known that at the common law the husband and wife are treated, for most purposes, as one person ; that is to say, the very being or legal existence of the woman, as a distinct person, is suspended during the marriage, or at least is incorporated and consolidated in that of her husband.' Upon this principle of the union of person in the husband and wife depend almost all the legal rights, ' Dorsey's Heirs i>. Dorsey, 7 J. J. Marshall, 159. ' Scarborough v. Walking and Wife, 9 B. Monroe, 548 ; and Todd's Heirs ». Wickliffe, 18 Ben. Monroe. 3 Browning's Adm'r v. Coppage, 3 Bibb, 37. * Ibid. 37. ^ Simpson v. Simpson, 4 Dana, 143 ; and MoCrocklin v. MoCrooklin, 2 B. Monroe. = Section 1367. ' Blaokstone's Comm. 442. [80] § 154] CONTEACTS BETWEEN HUSBAND AND WIFE. [OHAP. VII. duties, and disabilities which either of them acquire by or during the marriage.^ For this reason a man cannot grant anything to his wife, or enter into a covenant with her, for the grant would be to suppose her to possess a distinct and separate exist- ence. And, therefore, it is also generally true, that contracts made between husband and wife, when single, are avoided by the intermarriage.^ Upon the same ground it is, that if the wife be injured in her person or property during the marriage, she can bring no action for redress without the concurrence of her husband; neither can she be sued without making her hus- band also a party to the cause.' All this is very different in the civil law, where the husband and wife are considered as two distinct persons, and may have separate estates, contract debts, and injuries ;* and may also, by agreement with each other, have community of interest in the nature of a partnership." And in his § 1367 a, he says : " It is also a settled rule of the common law founded in like principles, that in virtue of the marriage the husband becomes entitled to all the personal estates, including the ehoses in action of the wife, and may appro- priate the whole to his own use. Hence, if a promissory note or bond be given to a woman before marriage by a third person, to secure an annuity to her, upon her subsequent marriage, her husband may release the note or bond, and by the release of the security the annuity itself is gone.' It would be otherwise if the annuity were secured on land, for then the husband could not release it without the concurrence of the wife ; and in order to extinguish the security she must join with him in levying a fine of the land."' Mr. Justice Story says :' "Now in courts of equity, although the principles of law in regard to husband and wife are fully recognized and enforced in proper cases, yet they are not exclu- sively considered. On the contrary, courts of equity, for many purposes, treat the husband and wife as the civil law treats ' Blackstone's Comm. 442. 2 Ibid. 3 Ibid. 443. * Ibid. 444 ; 1 Fonbl. Eq. 1, oh. 2, § 6, and note (h). 5 Hare v. Beecher, 12 Simons, E. 465, 467. = Ibid. ' Story'a Equity, § 1368. 6 [81] CHAP. ?n.] CONTBACTS BETWEEN HUSBAND AND WIFE. [§ 154: them, as distinct persons, capable (in a limited sense) of con- tracting with each other, and of having separate estates, debts, and interests.' A wife may, in a court of equity, sue her hus- band and be sued by him;^ and in cases respecting her separate estate, she may also be sued without him,' although he is ordi- narily required to be joined for the sake of conformity to the rule of law as a nominal party whenever he is within the juris- diction of the court and can be made a party ,"^ "In the further illustration of this subject we shall consider, first, the cases in which contracts between husband and wife will be recognized and enforced in equity ; secondly, the man- ner in which a wife may acquire a separate estate, and her powers and interest therein ; thirdly, the equity of the wife to a settlement out of her own property, not reduced into the possession of her husband ; and, fourthly, her claim in equity to maintenance and alimony.'" Mr. Justice Story says (§ 1370) : "And first in regard to con- tracts between husband and wife. By the general rules of law, as has been already stated, the contracts made between husband and wife before marriage become, by their matrimonial union, utterly extinguished." Thus, for example, if a man should give a bond to his wife, or a wife to her husband, before marriage, the contract created thereby would at law be discharged by the intermarriage.'' Courts of equity, although they generally follow the same doctrine, will in special cases, in furtherance of the manifest intentions and objects of the parties, carry into effect such a contract made before marriage between husband and wife, although it would be avoided at law.' An agreement, therefore, entered into between husband and wife before mar- riage, for the mutual settlement of their estates, or of the state of either upon the other, upon the marriage, even without the ' Arundell v. Phipps, 10 Ves. 144, 149 ; Livingston v. Livingston, 2 Johns. Ch. R. 539, &c. ^ Carmel v. Buckle, 2 Peer Williams, 243-4. ' Dubois V. Hole, 2 Vern. 613. * See Libia v. Alrey, 1 Ves., Jr., 278, &o. 5 Story, Sec. 1369. ° Co. Litt. 112 a, 187 6 ; Com. Dig. Baron & Feme, D. 1, Ante, § 1367. ' Baron & Feme, D. 1 ; Cro. Car. 551 ; Co. Litt. 264, b. " Bippon V. Dovrding, Ambler, K. 666, and Mr. Bluut's note. [82] § 154] CONTEACTS BETWEEN HUSBAND AND WIFE. [CHAP. VII. intervention of trustees,' will be enforced in equity although void at law,* for equity will not suffer the intention of the parties to be defeated by the very act which is designed to give effect to such a contract.' On this ground, where a wife before marriage gave a bond to her intended husband that, in case the marriage took effect, she would convey her estate to him in fee, the bond was, after marriage, carried into effect in equity, although it was discharged at law. Upon that occasion the Lord Chancellor said: 'It is unreasonable that the intermar- riage upon which alone the bond was to take effect, should itself be a destruction of the bond. And the foundation of that notion is, that at law the husband and wife being one person, the husband cannot sue the wife on this agreement ; whereas, in equity it is constant experience that the husband may sue the wife, or the wife the husband ; and the husband might sue the wife upon this very agreement.' "* ' strong V. Skinner, 4 Bartour, 546. 2 See Neves v. Scott, 9 Howard U. S. R. 196, &o. s Moore v. Ellis, Brent. R. 265, &o. * Canuel v. Bnckle, 2 Peer Williams, 243. [83] CHAP. VIII.] wife's equity TO A SETTLEMENT, ETC, [§ 157 CHAPTER YIII. wife's equity to a settlement out of heb own pbopebty. § 155. The rule is now well settled that the wife's equity to a settlement, and suitable provision for the maintenance of her- self and her children, extends to all of her separate real and personal estate, descended or devised, and must prevail when properly asserted against the husband or his assignee even, and against any sale made, or lien created by him, even for a valu- able consideration or in payment of a just debt. And the wife, or any person on her behalf, may institute suit.^ This equity stands upon the peculiar doctrine of the court.'' § 156. Per Judge Breck: "It rests upon the broad ground that in a court of equity it is regarded as her estate, which she has a right to have expressly set apart and secured, or such portion thereof as may be necessary for the permanent support of herself and children. Hence the doctrine is now well settled that the Chancellor will not aid the husband, nor permit him, nor his assignee, nor creditor, to acquire personal possession of the funds or personal estate of the wife until an adequate settle- ment is made upon her."^ § 157. But her equity must be asserted directly in the plead- ings. It will not be recognized as prima facie. In the recent case of Tobin v. Dixon and Wife,^ it was held that, although her ■ Kenney v. Udall, 5 Johnson, Chy. Eep. 464 ; 3 Cowen, 590 ; Murray v. Lord Elibank, 13 Vesey, 6 ; 2 Kent, 140, 141 ; 1 Mitford, 104^5 ; 14 B. Monroe, 260. 2 Haviland v. Myers, 6 Jolmson, Chy. Rep. 27 ; 2 Kent, 140, sec. 166. ' Hays V. Blanks, 7 B. Monroe, 348, and see especially §§ 166, 167, posterior ; Haviland v. Bloom, 6 Johnson, Chy. Rep. 181 ; 14 B. Monroe, 260. " Ky. Court of Appeals, Winter Term, 1859 ; and see also the case of Smith and Wife v. Long, 1 J. P. Metcalfe's Ky. Rep. 486, recognizing the same prin- ciples, and cases note to sec. 204, post, [84] § 159] wife's equity to a settlement, etc. [chap. VIII. equitable rights were conceded, it was said, per Simpson, Chief Justice, that her equitable right to a settlement may or may not exist. Its existence depends upon extrinsic circumstances. The law does not presume that the condition of the wife is such as entitles her to a settlement. ■ The right miist be asserted, and the facts which create and sustain it must be averred and relied upon, and, if traversed, then established by proof. It follows from this principle that the creditor of the husband may subject to the payment of his debts choses in action to which the hus- band is entitled in right of his wife, and which he may reduce to immediate possession, unless the wife interpose, aver, assert, and establish her right to an equitable settlement. It is incumbent on the wife to assert her right, and, if she be a party and omit to do it, the presumption is against her, and therefore a demurrer on her behalf was overruled and the cause reversed. § 158. The jurisdiction to compel the husband, or those claiming under him, to make a settlement upon the wife was first assumed in cases where it was necessary for them to apply to the court for assistance in order to obtain possession of the property of the wife; which assistance the court, acting upon the maxim, that he who seeks equity must do equity, withheld until an adequate settlement was made upon the wife.^ In conse- quence of this origin of the jurisdiction, it was thought that the equity of a wife to a settlement was confined to those cases in which the husband, or those claiming under him, were plaintiffs.^ However, since the decision of Lady Elibank v. Montolieu, the wife has been permitted actively to assert her equity as a plaintiff.^ § 159. The case of Sleight v. 'Reed* was decided in the Supreme Court of New York. Cornelius Eeed, who was the mortgagee of the premises foreclosed in this action, died intes- • Bossill V. Brander, 1 P. Wms. 459 ; Moore v. Moore, 14 Ben. Mon. 260-1. 2 See Bossill v. Brander, 1 P. Wms. 460. ' Sturgis V. Champneys, 5 My. & Cr. 105 ; Eldes v. Eldes, 11 Sim. 569; Hanson v. Keating, 4 Hare, 6 ; Newenham v. Pemterton, 11 Jur. 1071 ; Hare and Wallace's notes to Murray v. Lord Elibank, Leading Cases in Equity, 367. * 18 Barbour, N. Y. Eep. 160. [85] CHAP. VIII.] WIFK'S EQCriTT TO A SETTLEMENT, ETC, [§ 161 tate April 13, 1849, leaving a widow, one son, and two daugh- ters. The daughters are Mrs. Bishop, wife of Joseph Bishop, and Mrs. Alexander, the wife of John Alexander, Both were of age at the time of th^ir father's death, and one was married in 1846, the other in 1847. There is issue of the marriage of Mr. and Mrs. Bishop, but none of that of Mr. and Mrs. Alex- ander. John B, Vail recovered a judgment against Bishop, April 16, 1849, for $380 79, and another against Alexander, November 17, 1848, for $549 37. Both judgments were for debts contracted prior to April, 1848. The judgment against Bishop is collateral to that against Alexander, to the extent of $200. Both judgments were assigned by Vail to Whinfield, the present claimant. Of the surplus moneys ($2,191 18) aris- ing from the sale of the mortgaged premises, the referee reports that Mrs. Bishop and Mrs. Alexander are each respectively entitled to $611, the share of Mrs. Bishop being subject to the tenancy by the courtesy of her husband, and that of Mrs. Alex- ander to the life estate of her husband during their joint lives ; and that "Whinfield, by virtue of the judgments, is entitled to the income arising from those shares during the respective lives of the husbands, until the judgments, less $200, shall be paid. The referee must also have meant that Mrs. Bishop's share was also subject to the life estate of her husband, as well as to his tenancy by the courtesy. § 160. To this report Mrs. Bishop and Mrs. Alexander ex- cept, claiming the exclusive and absolute enjoyment of those shares. The exceptions were allowed at special term, from which decision the claimant, Whinfield, appeals. The present application seeks the equitable interposition of the court to assist the husband's creditor to appropriate the property of the wife to the payment of the husband's debts — debts contracted long before the wife succeeded to the inheritance. § 161. It is not at all unusual — indeed the instances are very numerous under our system of jurisprudence — for a court of equity to interrupt the enjoyment of a positive legal right for the purpose of preventing a mischief and avoiding a palpable hardship. And this is frequently the case where what is called the " wi/e^s equity" becomes the subject of consideration. Wher- . [86] § 163] wife's equity to a settlement, etc. [chap. yiii. ever an application is made on behalf of the husband, or of any person claiming in his right, to reduce into possession his wife's fortune, or to appropriate any part of it by virtue of a mere hgal right, the court, in most instances, will insist upon a pro- vision for her out of it, where no adequate settlement has been made on her; and it will not permit the property to be removed from its jurisdiction until this has been done, or unless, on personal examination, she waives the benefit of this protection. This is called "the wife's equity.'" § 162. This equity frequently modifies the maxim of law, by which the personal property of the wife, and the rents and profits of her real estate during her life, become vested in the husband ; for if the husband applies for the assistance of the court to gain possession of any part of his wife's fortune, the application will be refused, unless he make a provision for her out of it. The equity of the wife attaches not only to that part of her fortune which is vested in trustees, but it was deemed to extend to legacies bequeathed to the wife, though not vested in trustees, and, in short, to all cases where it is necessary to apply to the court to enable the husband to obtain possession of per- sonal property in right of his wife.* § 163. In several instances the husband has been restrained from reducing to possession his wife's choses in action, until an ample provision had been made for her. This equitable pro- tection is not restricted to applications made by the husband himself; but it is extended to applications made by the general or particular assignees of the husband ; whether the transfer of his interest was by operation of law, where he becomes bank- rupt or insolvent ; or was made by his voluntary act to general assignees, or by particular assignment of the interest to an individual ; and it is a matter of no importance whether the transfer was made for a good and valuable consideration, or was altogether nominal and voluntary. ■ See CIanoy'3 Eights of Woineii, 441, quoting from Maoaulay v. Philips 4 Ves. 17 ; Crooks v. Turpin, 10 Ben. Monroe, Ky. Kep. 244. 2 See ante, §§ 155, 156. [87] CHAP. VIII.] wife's EQUITT TO A SETTLEMENT, ETC. [§ 166 § 164. The case on this latter point, referred to by Clancy ,i and reported in "Eden's Chancery Cases,'"' has been always very much relied upon, having been decided in July, 1759, in Chan- cery.' Where a married woman being entitled to a sum of money in the hands of trustees, her husband made no provision for his wife and children. Being indebted to the Earl of Salis- bury, he assigned as security for that debt to which his wife was entitled, and died. The Earl of Salisbury filed his bill to compel the trustees to assign ; but the Lord Keeper (Henley) refused to give him any relief, as he could be in no better situation than the husband. § 165. Even less favor has been shown to mere creditors of the husband. In applications of this nature, it has been declared that the creditor of the husband who has no assignment has no claim ; and as to a specific voluntary assignment for a valuable consideration. Judge Savage* declares, that he fully concurs with his honor, the Chancellor, when he says: "I consider the wif^s equity as against any assignment whatsoever, and to whomsoever, to be now too well settled to be shaken." In his opinion on that case. Judge Savage reviews nearly all the cases on the subject, and he was sustained by a large majority of the court,* affirming the decision of the Chancellor. § 166. It will thus be perceived that the wife^s equity is sanctioned as decisively by authority, and consequently pos- sesses the force of law in as great a degree, as the right it assumes to qualify and control. It is the result of a gradual effort to temper the rigor of a rule, which, if carried to its extreme con- sequences, would work manifest injustice. It is a beneficent contrivance to compensate claims which otherwise would make the marriage relation one of gross inequality ; and it does not, as many suppose when the word equity is mentioned, rest in the abstract and d priori notions of right which an individual • The Earl of Salisbury v. Newton. 2 370. " See Udall v. Kenney, 3. Cow. 590, in the Court of Errors. * In Udall V. Kenney. ^ 24 against 3. [8S] § 169] wife's equity to a settlement, etc. [chap. VIII. judge may entertain, but, like all the principles now prevailing in courts of equity, is as much the fruit of experience, and is sustained by precedent to as great an extent, as any of the principles and maxims which have had their origin in courts of common law. § 167. If the wife's equity will be protected against an as- signee who has given a good and valuable consideration to the husband, on what ground shall the owner of a judgment reco- vered for a debt contracted before the property descended to the wife be entitled to more favor ? It rests altogether with the court as to what amount of the wife's estate shall be secured to her, and it must necessarily be determined by the circum- stances of each case.' The provision for the wife must be ade- quate ; a part, or even the whole, may be allowed.^ § 168. "In the case before us' there are two married women seeking to preserve the amount of six hundred dollars, each, belonging to them in their own right, from the grasp of their husbands' creditors. The judgments against their husbands were recovered in 1848 and 1849, which this application proves they had been unable to pay, clearly showing them to be in such narrow and embarrassed circumstances as to be unable to make adequate provision for their families. Consequently, if the amounts in question were much larger, we should leave the whole to the exclusive enjoyment respectively of Mrs. Bishop and Mrs. Alexander. "In addition to these considerations, I agree with the judge at special term, in his views of the effect which the act passed April 11, 1849, relative to the more effectual protection of the property of married women, has upon this case."^ § 169. " What were the rights which actually rested in the husband previous to that act? In regard to real property le- hnging to the wife at the time of the marriage, he took a vested Udall V. Eenney, 3 Cowen, 606. Pearce v. Pearce, 7 B. Monroe. ei«ight V. Reed, 18 Barbour, 160. See the act in appendix. [89J CHAP. VIII.} wife's equity TO A SETTLEMENT, ETC. [§ 171 interest, and became at once entitled to the rents and profits during their joint lives, and, in the event of the birth of a living child, to a contingent right on the death of his wife, to the sole enjoyment of the estate during his life. But as to any of her future acquisitions, the nature and extent of his interest were subject to any change which the legislature might thereafter make in the laws relating to the acquisition, disposition, and enjoyment of property. All regulations of this kind, the rules of inheritance, those relating to wills, successions, and convey- ances, all the provisions by which the transmission of pro- perty is either directed or intercepted, are the offspring of law, and entirely dependent upon the legislative power." § 170. " Whatever may be a man's prospective or possible rights arising from existing legislation in regard to property not yet vested in him, he is liable to have them abridged or alto- gether revoked by future legislation ; whether such person is an heir apparent, heir presumptive, or stands in the relation of husband, whose wife may at any time afterwards become enti- tled to property. The marriage contract does not imply that the husband shall have the same interest in the future acquisi- tions of the wife that the law gives him in the property she possesses at the time of the marriage; but that he shall have whatever interest, if any, which the legislature, before she is invested with them, may think proper to prescribe. This is precisely the kind of contract to which Bishop and Alexander were respect- ively parties at the time of their respective marriages; and this contract, or the obligation to enforce it, has certainly not been impaired by the act of 1849." § 171. " Mrs. Bishop and Mrs. Alexander married previous to the death of their father, from whom this property descended, and previous to the enactment of this statute. Instead of the law which existed at the time of their marriage, giving the hus- band a right to the rents and profits during the joint lives of the husband and wife, the legislature, in the legitimate exercise of its power, enacted that all future property descending to the wife should be transmitted ' to her sole and separate use,' and that she should hold ' the rents, issues, and profits thereof in [90] § 174:] wife's equity to a settlement, etc. [chap. VIII. the same manner and with the like effect as if she were un- married.' " . § 172. " This was in effect a modification of the laws of in- heritance entirely within the control of the legislative power. This modification does not operate on a marriage contract made before its passage so as to be within the scope of the provision in the Constitution of the United States, prohibiting to the States the passage of laws impairing the obligation of contracts; because, as has been shown, the interest of the husband in the future ac- quisitions of the wife is subject to the power of the legislature in controlling and directing the acquisition and disposition of property; and this contingency was an ingredient of the con- tract.'" § 173. By the common law the husband has a freehold inte- rest in his wife's lands; and both husband and wife are seized in her right. He has a title to the rents and profits during coverture; the estate remaining entire to the wife or her heirs upon the dissolution of the marriage. Upon the wife's death, the husband, if he survives, becomes a mere tenant by suffer- ance unless there has been issue of the marriage ; in which case he is entitled to the enjoyment of her inheritance during his life. The interest of the husband in the rents and profits during coverture, and in the estate as tenant by the courtesy when it was only initiate, as in the present case, could be sold on execu- tion ; but it is now considered as settled, having never been questioned in New York since Shermerhorn and Clute v. Miller and Wife.* § 174. But does it necessarily follow, because by common law or by statute a judgment creditor has a lien upon such interest, and can sell them upon execution, that, when the land is sold, and the proceeds paid into court, or are so situated as to be within its equitable jurisdiction and control, this lien is so absolute and paramount that the court cannot order those proceeds to be preserved for the exclusive benefit of the wife, divested of any claims against the husband ? S. P. Williamson v. Williamson, 18 Ben. Monroe, Ky, Rep. 384. 2 Cowen, 439. [91J CHAP. VIII.] wife's equity TO A SETTLEMENT, ETC. [§ 176 § 175. In Kenney v. Udall,' Chancellor Kent traced the his- tory of the wife's equity, and gave the following opinion: "The case of Jewson v. Moulson,^ may be selected as the first direct authority in favor of the wife's equity, as against a particular assignment by the husband of her equitable portion, for a valuable consideration. Vole being indebted to the defendant, Moulson, assigned over to him all the share, which, in right of his wife, he was entitled to in her father's personal estate. The father had, by his will, given the proceeds of his real estate to his executors in trust, after certain payments charged thereon, to be divided between his sons and his daughter, and if either died before twenty-one, the share of such person was to go to the survivor. This daughter was married to Vole, and had no settlement, and was an infant at the time the assignment was made to Moulson. There were two bills brought ; one by the executors to be discharged of the trust, upon paying and assign- ing over the wife's share; and the other by the defendant, Moulson, to be paid that share under his assignment. Lord Hardwicke held that there was an equity attached to the pro- perty itself, and that the assignee took it subject to that equity. It was an equity grounded upon natural justice, and prevailed equally against the husband, and his executors, and his general assignees, and his voluntary assignee. In all these cases the equity was extremely clear, and the only instance where the party had got the better of the equity, was the case of a par- ticular assignment of a specific article, for a valuable considera- tion. But in that case he relied upon the circumstances, that the wife during all the transactions was an infant, and a par- ticular object of the care of the court, and that it was an assign- ment at once of her whole portion, and that the defendant, M., was chargeable with notice of the wife's equity, and that the husband was in debt before he married, and had married his wife clandestinely." § 176. Lord Hardwicke required that a provision should be made for the wife, out of the portion, before the claim of the creditor could be admitted. The parties afterward agreed to ' 5 John. Ch. Rep. 741. " 2 Atk. 417. [92] § 178] wife's equity to a settlement, etc. [chap. VIII. let the wife have half the portion, after deducting the costs, and that the other half should go toward the debt. The Chancellor decreed that the agreement should be performed, having pre- viously declared that he should not allow the creditor to receive the whole fortune of the wife, without a provision for her. After this case, it was not easy to understand how Lord Thur- low should have been able to say, in Worrall v. Marlar, and Bushman v. Pell,' that "he did not find it anywhere decided that if the husband make an actual assignment by contract, for a valuable consideration, the assignee should be bound to make any provision for the wife out of the property assigned." § 177. "Again, in the case of the Earl of Salisbury v. New- ton,^ the wife was held to be entitled to a provision against the particular assignee, who was a creditor of the husband, for a valuable consideration, of the whole of her equitable interest. The Lord Keeper declared that the assignment could not stand against the wife and her issue ; and he directed an inquiry as to a proper provision for herself and children, and that the overplus, if any, should go to the creditors. " This last case was in 1759, and seems also to have been overlooked by Lord Thurlow, for it appears to carry the wife's equity to an extent which he had not discovered." § 178. The case of Like v. Beresford' put an end to all previous doubts on the subject. Lord Alvanley directed the settlement of the property of a married woman, a ward of the court, and of all the dividends and interests accrued, in opposi- tion to the assignment by the husband for a valuable considera- tion. He observed, in the learned review which he gave of all the cases, that Lord Hardwicke gave a reason, which was con- vincing, in favor of the wife against any assignee of the hus- band ; that a decision in favor of an assignee for a valuable consideration, would put an end to the equity of the wife. Lora Hardwicke and Lord Northington had given decided opinions, that an assignment, even for a valuable . consideration, would not avail against the wife's equity. ' 1 P. Wm. 459, note by Mr. Cox ; and 1 Coxe's Cases, 153 S. C. 1 Eden, 370. ' 3 Vesey, 506. [93] CHAP, VIII.] wife's equity TO A SETTLEMENT, ETC. [§ 181 § 179. The subject again came before Lord A., in Macauley V. Philips,* and he said he was clearly of opinion that the doubt respecting the assignment of the husband, for a valuable con- sideration, of the wife's equitable interest, was not well founded, with the single exception, perhaps, of a trust for a term of years of land, and that the assignment, for a valuable consideration, would not bar the equity of the wife. If the wife's personal fortune be vested in trustees, or be in any way under the con- trol of the court, or placed within its reach, the court will not sufifer it to be removed, until an adequate provision be made for her. § 180. Afterwards, in Wright v. Morley,' Sir William Grant seemed to pause upon the doctrine so emphatically declared by Lord Alvanley, and deduced from the decisions of Lord Hard- wicke and Lord Northington, The husband had assigned, for a valuable consideration, only a part of his wife's equitable interest. He had assigned only a hundred pounds out of two hundred and sixty pounds a year, of dividends of stock held in trust for her, and then had gone abroad and left her without any provision. Sir William Grant seemed to think it worth his while to look into the authorities in reference to the ques- tion, whether there was any difference between an assignment for a valuable consideration and by operation of law ; and he considered it to be a litigated point, whether the equity of the wife could be bound or affected by the husband's assignment for a valuable consideration. But he admitted the assignment to stand, to the moderate extent of one hundred pounds out of yearly dividends of two hundred and sixty pounds, and said that he could not give her the whole of the dividends. It seemed, however, to be admitted that the wife was entitled to her ordinary equity for a settlement. § 181. "I consider (says Kent) the wife's equity as against an assignment whatsoever, and to whomsoever, to be now too well settled to be shaken. The only inquiry is, to what extent shall her equity be carried over her personal estate, not yet reduced ' 4 Veaey, 15. » n Vesey, 12. [94] § 183] wife's equity to a settlement, etc. [chap. VIII. to the husband's possession. Lord Hardwicke intimated, in Jewson V. Moulson, that upon a bill by the wife an injunction ought to be granted to stay execution upon a judgment at law by the husband suing for his wife's right, until a settlement was made upon her. Such an injunction was actually granted by the Court of Exchequer, in Winch v. Page,' and by the Court of Chancery, in Meales v. Meales,' and, upon general principles of justice, it would appear that the Court of Chan- cery ought to restrain the husband from availing himself of any means, either at law or in equity, to obtain possession of the wife's personal fortune, unless he would make a competent pro- vision for her. But we have no concern with that question in this case. The inquiry now is, how much of the wife's estate shall be preserved from the husband's assignment ?" § 182. In Parker v. Dykes,' the wife had a provision left her by her father's will out of the proceeds of real estate directed to be sold, and the husband became a bankrupt and died. His assignees brought their bill to have the land sold, and the sur- plus of the moneys paid to them. The court dismissed the bill, and, as the wife was wholly unprovided for, suffered her to retain the entire of the legacy. This was as against the general assignees of the bankrupt husband. § 183. And in Gray v. Kentish,^ Lord Hardwicke followed that decision in allowing to the wife the whole provision left her by her mother, in opposition to the claim of the assignees of the bankrupt husband. So again, in ex parte Coysegame,' Lord Hardwicke gave to the wife the whole of an annuity of £40 a year, secured by bond, and belonging to her before marriage, as against the assignees of the bankrupt husband; and he held that the creditors stand in the place of the husband, and were not enti- tled to any more than he would have been. And in Vande- wanker v. Desborough,* as early as 1689, the wife was entitled ' Bnnb. 86. * 5 Vesey, 517, note. ' 1 Eq. Cas. Abr. 64, pi. 6 ; Mioh. 1798, at the Kolls. * 1 Atk. 280 ; 1 P. Wm. 459, note S. C. 5 1 Atk. 192. « 2 Vem. 96. [95] CHAP. YIII.] wife's equity TO A SETTLEMENT, ETC. [§ 185 to the interest of £800 invested in land by the directions of the testator for her benefit, and that of her children ; and the court held that no part of that interest was liable to the creditors of the bankrupt husband, and the whole principal and interest was ordered to be settled according to the will. § 184. It is also to be here noticed, that in the case of the Earl of Salisbury v. Newton, already cited, Lord Northington directed a proper provision for the wife against the particular creditor and assignee of the husband, and that the overplus, if any, should go to the creditor. The case shows that the extent of the provision depended upon the circumstances of the case, and might or might not absorb the whole of the estate. It showed that there was no precise rule limiting the provision to a moiety or two-thirds, or to any sum or proportion less than the whole. So also in Lake v. Beresford {uhi supra), Lord Alvanley observed, that the court had a complete right, if they thought fit, under all the circumstances, to give to the wife and children any part or the whole of the fortune to which the wife might be entitled. § 185. Other cases have declared a different doctrine, and that the wife is not entitled to the whole of her property to her separate use. This was so said by the Master of the Eolls in Burden v. Dean ;' and the same idea was thrown out in Wright V. Morley, in respect to a life interest of the wife, and that by the modern cases the wife only took a portion of that provision, as against the assignees of the husband. In Beresford v. Hob- son,^ the Yice-Ohancellor reviewed the cases, and concluded that where a legacy was left to the wife, posterior to the mortgage, and there was a settlement on her marriage, she was not enti- tled to the whole of the legacy, as against the assignees of her husband. He said that in no case had the court given the whole to the wife. The court, in the exercise of its discretion, had never tied itself down to any precise rule, but it had never given the whole.' ' 2 Vesey, Jun., 607. « 1 Madd. Ch. Kep. 362. » Kenney v. Udall, 5 Johnson's Ch. Eep. 741, sec. 167, ante. [96] § 189] wife's equity to a settlement, etc, [chap. VIII. § 186. If a contract had been made before marriage by which a small pittance had been settled on the wife as her separate estate, and by which a right had been given to her to trade on it, and manage it to her exclusive profit, such a contract would be deemed valid in equity, even without the intervention of a trustee, not only as to the husband, but also as to his creditors. To support the agreement, and secure the property to the wife, the husband would be regarded as her trustee, and as holding in that capacity the title to it for her separate use and enjoy- ment. § 187. And the personal savings and profits made by the wife, the results of her industry and economy, may, with the consent of her husband, be applied to her separate use, which she will have, in equity, a right to retain and treat exclusively as her own, so far as regards her husband or his representatives after his death, where the right of a creditor does not intervene. § 188. Whatever personal property or money, however, which the wife may have in her possession at the time of the marriage, rests absolutely in the husband, and becomes his for every purpose. The proceeds of her labor and industry also belong to him. He can make no voluntary disposition of his property to the prejudice of his creditors, either in favor of his wife or any other person, which will be legal and valid. He may, it is true, even after marriage, upon a legal and adequate consideration to support it, make a settlement upon his wife which will be sustained, and by which she will become invested with a separate estate, free from his control, and beyond the reach of his creditors. § 189. This equity will be enforced, not only against the husband, his assignees, and creditors, where they are complain- ants seeking aid and relief in equity, but it will also be enforced where she as plaintiff brings a suit in equity for the purpose of asserting it. A court of equity will also, at her instance, for the purpose of enforcing her equity to a settlement, arrest the collection of her choses in action, either by the husband or his 7 [97] CHAP. Tin.] wife's equity to a settlement, etc. [§ 192 assignee} And this settlement will be enforced in opposition to the assignment by the husband for a valuable consideration.^ § 190. It is a mistake to suppose that when the wife's right of survivorship to her choses in action has been defeated and taken away, that her equity to a reasonable provision out of them for her support has been necessarily lost. An assignment by her husband for a valuable consideration deprives her of the right of survivorship merely in her choses in action, yet the same act, as the foregoing authorities conclusively prove, does not divest her of her equity to a settlement out of the same estate. The assignee takes it, discharged, it is true, from the wife's mere legal right of survivorship, but still subject, how- ever, to her equity for a settlement. The two questions present very different principles for consideration ; and the right to the one is not the distinguishing test of the right to the other.' § 191. Marriage operates as a gift to the husband of such personal property as is in possession of the wife at the marriage, but in slaves owned by her it only gives him a contingent interest. He does not take as a purchaser, but as subject to any equity existing at the time of the marriage, unless created in fraud of his marital rights, and if good be- tween them binds him, whether recorded or not.' § 192. In Schuyler v. Hoyle," Chancellor Kent said : "The cases which seem to support a contrary doctrine, or to recognize the right of survivorship in the wife as to her choses in action, are those in which the wife was entitled to them hefore marriage, and they had not vested in the husband ; or where the husband had elected to sanction the wife's right of survivorship, by join- ing with her in an action, &c. ; or where bonds, notes, &c., have been taken to the husband and wife jointly, and the husband ' Clancy on the Eights of Married Women, B. 5, oh. 2, from page 463 to 470. ' 3 Vesey, 506 ; 4 Vesey, 15 ; Thomas, &o., v. Kennedy, &o., 4 B. Monroe, 235 ; and Crooks v. Turpin, 10 Ben. Monroe, Ky. Rep. 244-5. ' Basham v. Chamherlaine, 7 B. Monroe, 446. * Wilson V. Daniel, 13 B. Monroe, 350. 5 5 Johnson, Chy. Rep. 627 to 629. [98] § 194] wife's equity to a settlement, etc. [chap. VIII. has done no act to alter the property, and thus impliedly assented to her right of survivorship.' Both Comyn and Bacon, as well as others, make the distinction between property, or choses in action, to which the wife was entitled lefore marriage, and such as accrue to her during coverture; and they all agree that the husband has an absolute property in all the acquisitions of the wife during coverture, whether by gift, devise, or by her labor."^ § 193. This doctrine is also fully recognized by Judge Eeeves, in his work on "Domestic Eelations," pp. 60-63. He says: " Per- sonal property acquired after marriage by her means belongs absolutely to the husband, so that if a legacy should be given to the wife during coverture, and the husband should die before it is paid or due, it would not belong to the wife, but to the husband's executor." He asserts the same thing in regard to the wife's distributive share, and Toller says that a distributive share is just like a residuary legacy. § 194. It is well settled that if a husband gives a power of attorney to recover his wife's debt, legacy, or other chose in action, and the attorney does receive it, although it does not actually come to the hands of the husband, yet it is absolutely and indefeasibly his property.' A voluntary assignment by the husband of his wife's distributive share makes it the pro- perty of the husband, though the assignment as between him and the assignee is void.^ So an order of the Court of Chancery to pay the wife's legacy to the husband vests it in the husband, though he dies before payment, and defeats the wife's right of survivorship.' So a judgment recovered at law by the husband has the same effect f though it is otherwise if the husband is joined. ' Comyn's Dig. tit. Baron and Feme, F. 1, F. 2 ; 1 Vem, 396 ; 1 Fonbl. Eq. B. 1, oh. 4, sec. 24, n. (y.) 2 Comyn's Dig. Baron and Feme, E. 3 ; Bao. Abr. Baron and Feme, D. C. 3 ; 2 EoU. 134; Comyn's Kep. 735. ' 1 Bac. Abr. 480, tit. Baron and Feme C. ; 3 Roll. Abr. 342 ; Moore, 452 ; Golds. 160 ; Keeve's Dom. Relat. ; 4 Comyn's Dig. tit. Baron and Feme, E. 3. * 1 P. Wms. 380. 6 3 Bro. C. C. 362. e i ponbl. Equ. B. 1, oh. 4, sec. 24. ,[99] CHAP, vm.] wife's equity to a settlement, etc. [§ 198 § 195. The principle on whioh these cases are founded is, that where the husband has done any act in relation to his wife's ckoses in action, manifestly his intention to appropriate them to himself, the law deems it such a reduction into his possession as vests him with the property. § 196, The husband has only a qualified interest in his wife's choses in action; and unless he reduces them into possession, by action or otherwise, during his life, they belong to the wife in case she survives him.^ It is true that if the husband survives the wife, he alone is entitled to her personal property, or choses in action? Admitting then the rule of the law to be,' that if the husband gives a letter of attorney to receive a debt or legacy due to his wife, and the attorney receives it, but the husband dies before it is paid over to him, it will go to his executors, it does not follow that it will be considered as reduced to the possession of the husband where the power is given by the husband and wife jointly, and the attorney is to pay over the money to them jointly, § 197. The husband may sue alone for the debt or legacy due to his wife ; but if he joins the wife, and recovers judgment, it will survive her.^ The reason of the distinction is, that by bringing the action in his own name he signifies his disagree- ment to the wife's interest, and his intent that it shall not survive her ; but where the action and recovery are in their joint names, it shows that his intention is not to alter the property.* § 198. In Baker v. Hall,° where the husband entered into pos- session of the real and personal estate of the testator as executor and trustee under the will, and disposed of part, the Master of the Eolls held, that the husband must be deemed to have taken > Toller on Executors, 219 ; B. 2, oh. 5, sec. 2 ; 3 Vesey, 469 ; Co. Lit. 351, b. ; 9 Vesey, 87. ^ 6 Johns. Rep. 112; 1 N. R. L. 314, seo. 17 ; Co. Lit. 351, b. ' Toller, 221, 222. * 1 Ponbl. Equ. 314 ; N. Toller's L. E. 220 ; 4 Hen. and Mienf. Vlrg. Rep. 542. ^ Wildman v. Wildman, 9 Vesey, 176 « 12 Vesey, 496. [100] § 201] wife's equity to a settlement, etc. [cm|E, yiii. ^ possession as executor and trustee only, and that, therefor^-^H''^''' •wife's share of the residue of the testator's estate could not be considered as so reduced to the possession of the husband as to prevent its surviving to the wife upon his decease; and, of course, going, upon her death, to her personal representatives. So in the case of Wall v. Tomlinson,' the Master of the Eolls held that stock belonging to the wife was not reduced to the possession of the husband, by a transfer to him merely as trus- tee; for the transfer was made diverso intuita. § 199. The present inquiry is, whether there was any such interference or change of the wife's property by the husband before his death, though it did not come actually into his pos- session, or into that of his attorney, as to take away the right of survivorship in the wife. And for the more full illustration of the point we will see what acts the husband may do to affect the wife's property without actually reducing it to possession. § 200. In the first place he may assign, for a valuable con- sideration, his wife's choses in action. This was agreed to in Carteret v. Paschal,^ and expressly decided in Bates v. Dandy .^ The wife, in the last case, became entitled, during coverture, to a distributive share of an intestate's estate, and that share con- sisted of two mortgages, which the husband took and left with a creditor under a promise to assign them by way of security, but died before actual assignment. Lord Hardwicke held this to be an assignment in equity joro ianto, so far as the debt to the creditor was concerned, and that, though the husband might have disposed of the whole interest, yet, as he did not, the resi- due of interest in the mortgages belonged to the wife surviving her husband. § 201. So again, in Tewson v, Moulson,'' the wife was entitled before marriage as a legatee of her father ; and the husband assigned all the interest which he was entitled to in her right to her father's personal estate to a creditor. But the Chancellor 1 16 Vesey, 413. ' 2 Atk. 206. 2 3 P. Wms. 197. ■• 2 Atk. 417. [101] CHAP. VIII.] WIFE'S EQUITY TO A SETTLEMENT, ETC. [§ 203 allowed the creditor's claim only on condition of his agreeing to make a separate provision for her and her children. § 202. The doctrine of these cases is, that the husband may- assign his wife's choses in action to a creditor for a valuable con- sideration ; but even then the assignment is subject to her equity for a reasonable provision.^ Those cases also show that there is no distinction between the case of an interest vesting in the wife before or after coverture; and the inference from them is (and the position is expressly conceded in other cases,^ and is well established), that a voluntary assignment by the husband of the wife's personal property in action, without consideration, will not bind her if she survives him. This admission of the right of assignment for a valuable consideration, so as to pass the right of property free from the wife's contingent right of survivorship, though not from the wife's equity for a reason- able provision for her support, and the denying of this effect to a voluntary assignment, were also expressly declared by the Master of the Eolls in Mitford v. Mitford.^ He there held that an assignment in bankruptcy had no greater effect than a volun- tary assignment, and he applied the rule to the case of a legacy given to the wife during coverture. § 203. In Garforth v. Bradley,'' Lord Hardwicke discussed more fully the control -which the husband has over the wife's personal property lying in action. The wife had a legacy left her during coverture, and part of another legacy came to her by intestacy. The husband assigned over the whole interest with a proviso that, at his request, the assignee should reassign. He died and the wife survived him, and the question arose between the respective representatives of the husband and the wife whether the surplus of her estate, arising from the bequest and the intestacy, survived. There was a settlement in that case, but the Chancellor decided the question arising on the ' Vide the oases of Pryor v. Hill, 4 Bro. 139 ; Like v. Beresford, 3 Vesey, 606, S. P. * Burnet v. Kimmorton, 2 Vern. 40 ; Lord Tliurlow in Saddington v. Kins- man, 1 Bro. 51, note to P. -Wms. 381. » 9 Vesey, 87. • 2 Vesey, 675. [102] § 204] wife's equity to a settlement, etc. [chap. VIII. survivorship of the legacy and distributive share, independent of the settlement, and upon the general doctrine applicable to the case. He observed: "That whenever a cliose in action came to the wife, whether resting before or after marriage, it would sur- vive to the wife if she survived her husband, with this distinction, however, that, as to those things which came during coverture, the husband might bring an action in his own name, and might disagree to the interest of his wife ; and a recovery in his name was equivalent to reducing it to possession, and it would go to his representatives ;" for which point he cited the case of Bil- liard V. Hambridge.^ He said further, that the husband might have released the money or have assigned it for a valuable con- sideration to a creditor or purchaser. But in that case, as the assignment was not absolute, but with a proviso which created a trust for the benefit of the husband, there was no alteration of the property, as the husband was previously the owner, subject to the wife's survivorship. The portion, therefore, of her estate not got in was held to have survived to the wife.^ § 204. It appears to be settled^ that if the husband survives the wife he is entitled to her choses in action, whether they were or were not reduced to possession during her lifetime. Her whole personal estate in action as well as in possession rests in the husband upon her death, for his right to administer on her personal estate includes a right to her choses in action. They vest in him, by the statute of distributions, as her' next of kin.^ And slaves and personal property conveyed to a trustee for the separate use of the wife on her death vest absolutely in the husband, unless otherwise directed by the terms of con- veyance.* Slaves owned by the wife before marriage, and acts of 1846 1 AUeyn, 36. 2 Schuyler v. Hoyle, 5 Johnson's Ch. Rep. 627, 629. ' Schuyler v. Hoyle, 5 Johnson's Chy. Rep. * Squib V. Wyn, 1 P. Wms. 378 ; Cart v. Rees, cited ib. 381 ; Elliot v. Col- lier, 3 Atkyns, 526. See Sections posterior, and Brown v. Alden, 14 B. Monroe, 141 ; Cox V. Coleman, 13 B. Monroe, 452. * Brown, &c., v. Alden & Pope, 13 B. Monroe. [103] CHAP, vin.] wife's equity to a settlement, etc. [§ 204 and '52, as well as such as accrue to her during coverture, vested absolutely in the husband.' > In Smitli & Wife v. Long et aL, 1 Metcalf, Ky. Eep. 486 : Where hus- band and wife, in 1849, executed a bond for the conveyance of a tract of land in which the wife had an undivided interest, a suit was brought against them by the purchasers, in 1854, for a specific execution of the contract, in which the wife set up her claim to her interest, and also for rents and profits. By consent of parties her portion of the land was allotted to her, after which it was sold and conveyed by herself and husband to the same purchasers : Held, that she could not recover rents and profits of the vendees in the absence of sufficient ground for an equitable settlement upon her. The rents and profits of the lands of the wife are not a separate estate, for her exclusive use and benefit, and subject to her exclusive control and dominion, without regard to the circumstances of herself and husband, or of their family. Where the court says : Gfeorge A. Smith and Tabitha, his wife, executed to Samuel and Edward Long a bond for the conveyance of a tract of land con- taining one hundred and thirty acres, which had descended to the heirs at law of Peter Ellis, deceased, eleven in number, of whom Mrs. Smith was one. The bond Is dated the 15th February, 1849. This action was instituted by the two Longs, to enforce a specific execution of the contract. Smith and wife answered, the latter claiming to be entitled, as one of the heirs at law of her father, to one-eleventh of the tract of land mentioned in the bond, and to the rents and profits thereof during the time the plaintiffs had had it in possession. She prayed for a partition of the tract, and for an allotment to her of her share, and also for a judgment for the rents and profits. It appears from the record that a commissioner was appointed, by consent of the parties, to allot to Mrs. Smith one-eleventh part of the land in contest, and to take an account of the rents and profits of the same whilst in the pos- session of the plaintiffi ; but it was agreed that " this consent does not admit the right of the defendant Tabitha to rents and profits." The commissioner reported, fixing the value of the rents at $196 98. Pending the action. Smith and wife conveyed to the plaintiffs, for the con- sideration of $375, the interest of the latter in the land after it had been allotted by the commissioner. Upon final hearing the court below was of opinion that as the plaintiffs had acquired possession of the land under their contract of purchase, evidenced by the bond referred to, they were not liable for rents, and accordingly dismissed the claim of Mrs. Smith to that extent. To reverse that judgment she and her husband have appealed. The record presents no plausible ground upon which her claim to rents can be maintained. Prior to the passage of the act of 1846, giving further protection to the rights of married women, Sess. Acts, 1846, p. 43, the well settled doctrine was, that by the marriage the husband acquired an estate for the life of the wife, or [104] § 205] wife's equity to a settlement, etc. [chap, yiii. § 205. Where a will authorizes a sale and conveyance by executors of real estate for particular purposes and equal divi- during coverture, in lands owned by her ; and if lie sold lier lands, although her inheritance would not pass by such sale, yet it invested the purchaser with the husband's interest, and with the right of possession which was inci- dental to it. McClain v. Gregg, 2 Marsh. 455. By the third section of the act referred to, it was provided that, in no case should the courtesy or life estate of the husband in the lands of the wife, be sold by process of law, except after the death of the wife, the husband sur- viving. By the provisions of the Revised Statutes, however, this marital right of the husband has been very essentially modified ; Sec. 1, of Art. 2 (p. 387), declares that marriage shall give to the husband, during the life of the wife, no interest in her real estate, except the use thereof, with power to rent the real estate for not more than three years at a time. Nor shall such real estate, or the rent thereof, be liable for any debt of his, whether incurred before or after marriage, but shall be liable for her debts incurred before marriage, and for such contracted after marriage, on account of necessaries for herself or any member of her family, her husband included, as shall be evidenced by writ- ings signed by her and her husband. There is certainly nothing either in the terms or policy of this statute which can be supposed to authorize the claim asserted in this case. The statute was not intended to convert the rents and profits of the wife's lands into a separate estate, for her exclusive use and benefit, and subject to her exclusive control and dominion without regard to the circumstances of herself and husband, or of their family. The only object of the restriction upon the power of the hus- band, as it respects the period for which he may rent the real estate, evidently was to secure more effectually to the wife the exercise of her right to appro- priate the rents and profits in the purchase of necessaries for herself and family, and also of her further right to demand of the Chancellor an equitable settlement upon herself, out of the rents and issues of her real estate, when- ever she may present a state of case which would authorize such equitable remedy. No such state of case is represented by the record before us. Mrs. Smith alleges that she "is now without a home of her own," and that the most of her children are small and helpless. Assuming these facts to be true, they by no means authorize even an inference that she and her husband are not in the enjoyment of a comfortable independence, or even of wealth, and constitute no sufficient ground for an equitable settlement upon the wife to the prejudice of the just claims of the vendees of the husband, under whom the former took possession, in good faith as purchasers, and have so held ever since. We are unable to perceive any aid which the claim in contest can derive from the consent of the appellees to a partition of the land, when the same order expressly recites that such consent is not to operate as an admission of the right of the wife to the rents and profits. In Lynn v. Bradley, &c., 1 Mete. Rep. 232, Mrs. Lynn brought suit for her reversionary interest in slaves which had been conveyed to a third party by herself and husband, prior to his death. [105] CHAP. VIII.] wife's equity TO A SETTLEMENT, ETC. [§ 205 sion amongst heirs, the husband of one of the heirs who receives a conveyance to himself in fee, on no other consideration than The transfer by the husband of the reversionary interest of the wife in slaves, although for a valuable consideration, will not defeat her right by survivorship ; and in such case the transferee only acquires by his purchase the chance of the husband outliving the wife, or of the reversionary interest falling into the husband's possession during coverture. A transfer by the husband of such of his wife's chases in action as are sus oeptible of being immediately reduced into possession for a valuable conside- ration, will operate to defeat the wife's right by survivorship. Where >■ wife, in 1840, joined with her husband in a conveyance of a reversionary interest in slaves, a subsequent declaration by her, after her husband's death, that she had sold the slaves and had no interest in them, will not operate as an estoppel upon her in a suit by her for the slaves, or render valid the conveyance of herself and husband, which was absolutely vcid as to her. Such declaration is a mere expression of opinion as to the legal effect of the conveyance. In the case of Hord v. Herd, &c., 5 B. Mon. 81, it was decided that a deed executed by husband and wife, transferring to the grantee their reversionary interest in the slaves of the wife, was not authorized by any of the statutes prescribing the mode in which deeds were to be executed by husband and wife, and therefore was not obligatory upon the wife. The statutes which authorize husband and wife to execute deeds of conveyance were decided to relate exclusively to real estate, and not to apply to slaves or personalty. According to the doctrine established by that case the deed which the appel- lant executed, in conjunction with her husband, to Bradey and Davis, forms no obstacle to her recovery in this case, so far as the slaves in controversy are concerned, unless the sale made by her husband operates to defeat her right to them by survivorship. Since the decision of the case of Thomas v. Kennedy, 4. B. Mon. 235, the doctrine recognized by this court on the subject of the transfer by the husband of the wife's reversionary interest in slaves is that such transfer, although for a valuable consideration, does not have the effect of defeating her right by survivorship. In- the foregoing case, of Hord v. Hord, the court said that the grantee of the husband acquired all the interest of the husband, but he took it subject to the wife's equity, and also to her right of survivorship. In the case of Wright v. Arnold, 14 B. Mon. 638, the court, in commenting upon the decision in the case of Hord v. Hord, conceded that doctrine to be incorrect, and recognized the distinction between an assignment by the husband of such of his wife's chases in actian as are susceptible of being immediately reduced iuto possession, and of her reversionary choses in action or interest in slaves or other personalty which cannot be reduced to possession by the husband. The sale and transfer of the former by the husband for a valuable considera- tion will operate to defeat the wife's right by survivorship ; but a transfer of the latter will not have that effect. The right of the husband to the reversionary interest of the wife in slaves belonging to her prior to her marriage, or accruing to her during coverture, is [106] § 206] wife's equity to a settlement, etc. [chap. VIII. the interest of the wife and with a knowledge of the powers of the executors, is a trustee for the benefit of his wife.' § 206. Where there is no absolute or direct indication on the part of the testator that the lands be converted into money, and the proceeds distributed as money, and the husband of the merely a rigit to obtain possession of them when the period arrives at which the wife is entitled to their possession ; and if he die in the meantime, leaving his wife surviving him, his right is gone, and the right of the wife takes effect by survivorship. The assignee of the husband for a valuable consideration purchases the chance of the husband outliving the wife, or the reversionary interest falling into possession during the coverture. This is all that he acquires by his purchase ; and if the husband die before the wife, and before the period arrives in which the wife is entitled to the possession of the slaves, the right survives to the wife, and the purchaser does not obtain anything by his purchase. This we think is the correct doctrine, and it is sustained by almost all the modern adjudications on the subject. The right of the wife, therefore, in this case is clear, unless she has done some act by which she is precluded from asserting her claim in a court of equity. In the case of Herd v. Herd it was decided that the deed derived no additional validity against the wife, from the fact that it was acknowledged by her, and recorded. As the execution of the deed by the wife is invalid and inoperative, it cannot have the effect of depriving her of the right to assert her claim to the slaves. There is no testimony that she made any representations to the purchasers, or that the purchase was made at her instance or for her benefit. The case, therefore, does not come within the principle settled in the case of Wright v. Arnold, &o., 14 B. Mon. 638. Her declaration at the time of the division of the slaves that she had sold them and had no interest in them, did not prejudice the rights of any one, and cannot, therefore, operate upon her as an estoppel. Neither could it have the effect of rendering valid the sale made by her husband and herself, which, as to her, was absolutely void, she being a married woman, and incapable of making such a contract, the deed having been executed before the act of 1846. The act being void, was not susceptible of confirmation. Her statement at the time referred to, was in fact nothing more than an expression of her opinion of the legal effect of the joint deed of herself and her husband. She was evidently laboring under the belief that the sale was valid, and that she had no interest in the slaves. The court, therefore, erred in dismissing her petition. By the deed which she and her husband executed her interest in the land passed to the pur- chaser, but not her interest in the slaves. By the death of one of her brothers, which subsequently occurred, she acquired an interest in the land, and also an additional interest in the slaves, subject, however, to the rights of his creditors. ' See marginal note, Samuel v. Samuel's Adm'rs, Heirs, &o., 4 B. Monroe's Ky. Kep. 249. [107] OHAP. VIII.J wipe's equity TO A SETTLEMENT, ETC. [§ 207 devisee, and heirs of the testator, receive a conveyance in fee on no other consideration than the interest of the wife in the landed estate of the testator, the husband will hold as trustee for the wife.' § 207. " The doctrine of equitable conversion is at best ex- tremely artificial; its basis is that things agreed to be done are treated in equity as if actually done ; but as the principle is stated by Story,'' they are so treated for 'many purposes,' and therefore impliedly not for all purposes; and the court does not 'interfere to change the quality of the property as the testator has left it, unless there be some clear act or intention by which he has fixed upon it throughout a definite character as money or as land f nor will equity consider things as done in this light in favor of every body, but only of those who have a right to pray that it might be done.^ It is said in 'Powell on Devises," that the new character must be decisively and absolutely fixed upon the property, and if the trustees may convert it or not, there is no constructive conversion ; and in ' Newland on Con- tracts,'* the same principle is laid down as deducible from the cases in which, so far as we have had an opportunity of advert- ing to them, we find no authority for applying to wills the principle of equitable conversion on the ground of mere infer- ence or implication, unless of the most absolute and imperative character. We should have great doubts, therefore, whether, even if the residuary clause is to be understood as describing the whole residuum as money, and as being, therefore, based upon the supposition or expectation that the whole estate would be converted into money, this should be regarded as equivalent to an absolute command or direction to that effect, or as suffi- cient to stamp upon the land, until actually converted, the character of money ; and if not to be so regarded, as the impli- cation in favor of distributions previous to the final one still results from the various circumstances before referred to, it would follow that such intermediate distributions might, in the ' 4 B. Monroe, Ky. Rep. 262. ' Sec. 792. ^ 2 vol. sec. 1212. 5 p^gg gS. ' 2 Story's Equity, sec. 1212-1214. e Pages 54 and 56. [108] § 210] wife's equity to a settlement, etc. [chap. VIII. discretion of the trustees, be made in kind, and that when so made, land distributed or divided out could be regarded only as land, and the husband receiving it in right of his wife, would hold it as her land, and precisely in the same manner and on the same trusts as if she had been entitled to it by descent § 208. " On the contrary, the right of taking the land instead of the money is never vested as a rigTit to take the land as if it were money, but as a mere right to take the land instead of the money. It is strictly an election} It is in effect a right to waive, the conversion, and is regarded as a privilege f and the election is to be made by the person entitled to the thing in the cha- racter stamped upon it by the will,' or, as it is expressed by Newland, by the person absolutely entitled. § 209. "And what then is the right of the husband in regard to the choses in action of the wife? It is in law not an absolute right or title to the thing itself, for if he does not reduce it to possession, or do some equivalent act within his power, the thing survives to his wife. It is then only a conditional right, dependent on his reducing it to possession. In this case he had no right to the land, but as a consequence of his right to the money ; and he had no right to the money, except to reduce it into possession, which was never done, and which might never have been done in his lifetime. Does this conditional right to the money entitle him to elect to take the land absolutely in- stead of it? § 210. " At law there is no such thing as a constructive con- version of land into money, because the land has been directed to be sold and the proceeds are disposed of as money ; but the land, until sold, remains in law, what it is in fact, the land of the estate. At law, then, the husband, whose wife is the legatee of the money to be raised by the sale of the land, has an interest ' 2 Story's Equity, section 793 ; Newland on Contracts, 49 ; Powell on De- vises, 71. 2 Craig V. Leslie, supra ; and 4 Condensed Rep. 337. ' Same authorities. r 1 no i CHAP. VIII.] wife's equity TO A SETTLEMENT, ETC. [§ 212 only in the money, and cannot regard tlie land as money and seize it as the legacy of his wife, which he may reduce to pos- session if he can. A legacy to be paid out of the proceeds of land directed to be sold for that purpose is not payable until the land is sold, and, therefore, cannot be reduced to possession before that time, any more than if it were strictly a reversionary interest, dependent upon a future event. § 211. "It is only in a court of equity that land directed to be converted into money is considered as money before an actual conversion, and the husband can claim the benefit of a construc- tive conversion, and the right to elect to take the land, only upon the principles which are established, in a court of equity. But that court will not help a husband to reduce into possession a legacy or other chose in action of the wife, though actually due, without regarding the interest of the wife, and requiring a settlement, if she need it. In equity, too, the possession by the husband as trustee, will not defeat the wife's right by survivor- ship ; and it is a matter of doubt and controversy among Chan- cellors of great reputation, whether the husband's assignment for a valuable consideration of his wife's reversionary interest in money or other personalty, would defeat her right if she sur- vive before it comes into possession ; and also whether a court of equity will allow her to defeat that right, even by consenting in court to the assignment.^ § 212. " A court of equity, moreover, although it admits a person who is entitled to money to be raised by the sale of land, or to land to be purchased with money, to elect before an actual conversion, to take the property in its then condition, does not deem a feme covert competent to make such election,' and espe- cially in the case of money to be laid out in land for her,^ in which case the act en pais of husband and wife was deemed in- suflScient for this latter purpose ; and it cannot be doubted that if Samuel had come into equity, praying either for a sale by the trustee, or for a conveyance of the land, the court would Clancy on Eights, 140 to 150. ' Oldham v. Hughes, 2 Atkyns, 453. Powell on Devises, 71. [110] § 214] wife's equity to a settlement, etc. [chap. VIII. have regarded and preserved the right of the ■wife, who must have been a party. Is it not then inconsistent with these principles of a court of equity to permit the husband, without the consent of his wife, to take for his own use the land held in trust for raising money for her, merely because she might have received and thus have made his own the money which would be produced by the sale, if he should be alive at the time the money should be thus realized? § 213. "If it were conceded that the husbaind conld have assigned the interest of his wife to a stranger for a valuable consideration, and that out of regard for such consideration a court of equity might sustain the assignment against the sur- viving wife, which upon the modern authorities is doubtful, or if he might receive his wife's legacy from an executor before it is due, and thus make it absolutely his own ; still, these admis- sions do not reach the present case, the substance of which is, that on one side the trustee holding the land in trust, to sell it and raise money, not for the husband, but for the wife, acting in execution of the trust, as he supposed, for the deed itself shows this, conveyed the trust land to the husband instead of the wife in discharge of so much of pecuniary legacy, payable out of the land, and not then due, because the land was not sold ; and on the other side, the husband of the legatee, as the sole consideration of this conveyance, acknowledged satisfaction of so much of his wife's future legacy, which was not his, be- cause he had not reduced it into possession, and which the trustee could only discharge, either by a conveyance of the land to the wife, or by selling it and paying the money to her or her husband,' and she, therefore, entitled to the land.^ § 214. "It has long been a vexed question whether the husband may or may not defeat the wife's right of survivorship by an assignment of her interest for a valuable consideration, as he may defeat her right of survivorship by an assignment of her chose in action. Able authorities are arrayed on both sides of > Newland on Contracts, 467 ; Leolimere v. Carlisle, 3 Peer Williams, 218. ^ Samuel v. Samuel's Adm'rs, 4 B. Monroe, 253, 255. [Ill] CHAP. VIII.J wife's equity TO A SETTLEMENT, ETC. [§ 214 this question, and it is at this day regarded as not fully settled.^ Mr. Eoper advocates the power of the husband to defeat, by assignment, the right of survivorship of the wife ; and Clancy, with eminent ability, controverts his right. And our conclu- sion upon the whole matter is, that the current of modern deci- sions is against the power of the husband.^ But this court, in the case of Merriweather v. Booker and Wife,^ determined with- out much apparent consideration or research of authorities, that the wife might har her right by a sale of her interest in remainder in slaves. And a dictum, to the same effect is to be found in the case of Upshaw v. Upshaw et al."* We do not deem it neces- sary, in this case, to overrule or afSrm the principle settled in the former case, and intimated in the latter. Conceding it to be the settled rule of this court, as a naked principle, under which the assignee might shelter himself against the claims of the wife, if he could get possession of the reversionary interest before he was arrested in pursuit of it, yet we cannot concede that if he has never obtained the possession, and a court of equity has ob- tained jurisdiction and control over the interest or the proceeds, that the assignee will be allowed to receive it against the claim and equity of the wife, to have a settlement and provision made out of it as her own patrimony, for her maintenance and sup- port, especially when she has been left by an insolvent husband in a destitute condition. If he takes it, freed from the wife's legal right of survivorship, by virtue of the assignment, yet he takes it subject to the wife^s equity in it for her support. He takes it just as the assignee of a chose in action takes, free, it is true, from the wife's mere legal right of survivorship, but suhject to her equity for a settlement. And whenever, in either case, the subject is brought within the cognizance and under the control of a court of equity, her equity to a provision will be regarded as para- mount and superior to the claim of the assignee. > 1 Roper on Property, from 234 to 251, and the authorities referred to ; Clancy on Eights, from 140 to 150, and the authorities referred to ; 2 Story's Equity, from 631 to 641, and the authorities cited ; 2 Kent's Commentaries, from 136 to 143, and the authorities cited. '' Thomas v. Kennedy, 4 Ben. Monroe, 336, and the authorities there cited. 3 6 Littell, 258. * 2 Hennang & Mason, 389. [112] § 217] wife's equity to a settlement, etc. [chap. VIII. § 215. "Indeed, in such a case, the wife's equity would seem to present stronger ground for relief against the assignee of her reversionary interest, than against the assignee of her chose m action. In the latter case, the claim assigned ia susceptible of being reduced into present possession, and such assignment has been deemed a constructive reduction to possession by the hus- band. But in the former case the thing assigned is incapable, from its condition, to be reduced to immediate possession, and no constructive possession can be implied ; and as the right of the husband to his wife's personal chattels is made to depend upon his acquiring either actual or constructive possession of the same, during her life, the equity of the wife to a provision out of her reversionary interest would seem to stand upon higher ground, according to the more modern decisions.'" § 216. And, finally, it was settled in Moore v. Moore,' that the right of the wife to claim a settlement out of estate, descended to her, is not confined to cases where the Chancellor is called upon to subject such estate to the payment of the debts of the husband, but may be asserted by the wife by an original bill as plaintiff. The right of the wife to a settlement of estate descended to her cannot be defeated by the assignment of the husband ; even if the husband does assign for a valuable consideration, it is sub- ject to the equity of the wife. An assignee of -the husband of the choses in action of a wife for the payment of debts, is bound to make a settlement for the wife. § 217. The proceeds of the sale of the wife's lands, so long as it remains in the hands of the purchaser, constitutes a part of her estate, out of which she has a right to a settlement, and money due for land sold by husband and wife, which descended to the wife from her father, until received by the husband, may ' 2 story's Equity, 640, and the authorities cited ; Clancy on Eights, from 144 to 150, and the authorities cited ; Thomas, &o., v. Kennedy, 4 B. Monroe, 336 ; Crooks v. Turpin, 10 B. Monroe, 244, 245 ; Moore v. Moore, 14 B. Monroe, 261 ; 2 Story, sec. 1412. 2 14 B. Monroe, 259. 8 [113] CHAP. VIII.] wife's equity TO A SETTLEMENT, ETC. [§ 220 be subjected by the Chancellor to a settlement for the benefit of the wife, especially since the act of 1846, in Kentucky.^ § 218. The equity of the wife is to a reasonable and adequate settlement upon herself and her children ; and the adequacy will depend on all the circumstances of the case, to be ascer- tained upon a reference to a Master ; and the settlement may extend to the whole or a part of the property. The term ade- quate is a relative term, and, in determining the question of adequacy, regard will be had to the whole extent of the fortune brought by the wife. In ordinary cases the court will not require the whole to be settled upon the wife, but if the hus- band be entirely insolvent, and if there be no other provision for the wife, or if it be a case in which he has married without permission a ward of the court, the whole may be appropriated to the wife.^ § 219. In like manner the wife's equity is, in general, for a provision to take effect after the death of the husband ; and he is entitled to the interest during his life, where he lives with and supports her ; but again, if the husband has deserted or ill- treated her, or is wholly insolvent, and the wife destitute, the maintenance provided for her will be directed to commence immediately, and the income will be ordered to be paid to her, or to a trustee for her. § 220. Where an assignee or creditor of the husband files a bill to reach the wife's property, she may interpose her claim to a settlement by petition, without resorting to a bill ; and the practice of the court, in all cases, is to refer it to a Master to inquire and report whether any and what settlement ought to be made. When the husband himself is suing for a legacy or distributive share due to the wife, she must be made a party to the bill, and then a provision will be compelled unless she waive it.^ ' See Long v. Brown, 13 Ben. Monroe, 295 ; Moore v. Moore, 14 Ben. Monroe. 2 Bouling & Boucher v. Winslow's Adm'r, 5 B. Monroe, 23-31. ^ Ringo et aL v. Warder, &o., 6 B. Monroe, 514. [114] § 223] wife's equity to a settlement, etc. [chap. VIII. § 221. And the practice appears formerly to bave been, to impound the property until the husband proposed terms of set- tlement before a Master, and for the court to judge of the suffi- ciency ; but, probably, now the court will order a Master to inquire and report what are proper terms. The court will not, ex officio, withhold the property or money from the husband until a settlement is made, nor will it order a settlement abso- lutely, upon the application of a stranger, without the consent of the husband ; the application for a settlement must be from the wife herself, or her guardian, or attorney, or some one stand- ing in a similar situation to her; but, on the other hand, the court will not order the property to be transferred to the hus- band until the wife has been consulted ; of its own motion it will merely direct an inquiry, whether any and what provision has been made for the wife, and whether the wife will consent that the fund shall be paid to the husband. § 222. The wife's equity is so substantial an interest that it will constitute a valuable consideration for a postnuptial settle- ment upon the wife. A voluntary settlement upon such a basis will, to the extent of that equity, be supported in chancery as against creditors. " I think it may be assumed as a rule," said the Vice-Chancellor in Wickes v. Clarke, "that the same cir- cumstances which would induce the court to compel a settle- ment by the husband, or those claiming under him, or in his right, will operate to uphold a deed of settlement already made to the same extent that would be required if one should be directed to be made under the view of the court.'" § 223. The wife's equity extends, in all cases, to a provision for her children as well as for herself. But the provision for children is a part of the wife's personal equity, and is not an independent and substantive equity in the children. Therefore, although when the wife has asserted her claim, and an order for a settlement has been made, and she dies before the settlement is completed, it has been thought that the children acquired a vested interest, which will be carried through for their benefit; ' Hare & Wallace's Notes, 387. So held in Marshall v. MoDaniel, 8 Ben. Monroe, Ky. Bep. 175. [115] CHAP, VIII.] wife's equity TO A SETTLEMENT, ETC. [§ 223 yet .if the mother has taken no step to enforce her equity for a settlement, and has no contract for it, or if she has waived it, her children surviving her have no claim on the estate for a provision.' It is agreed on all hands, that if the property has been actu- ally reduced into possession, or is not a mere right or thing in action, but a complete legal estate vested in the husband, the wife's equity can no longer be enforced.^ ' Greer's Heirs v. Boone, 5 B. Monroe, 554-557. ' Hare & Wallace's Notes, 386. [116] § 226] children's equity. [chap, ix. CHAPTER IX. childeen's equity. § 224. In the case of Greer's Heirs v. Boone,i the court, in speaking of this doctrine, said: "It seems to be well settled that when a settlement has been made on the wife during her life, it will, upon her death, survive and descend to her children ; and it has been so held where there has only been an order by the Chancellor, or an agreement for a settlement during the life of the wife. But whether the children, after the death of their mother, have an original equity independent of her, which will entitle them to a provision out of the equitable assets before the husband can have the assistance of a court of equity to obtain possession of them, is a question upon which eminent judges are at variance. § 225. The equity of the children has been recognized by some of the English Chancellors, and by others denied. The subject is fully examined by Clancy and the authorities referred to.^ He concludes a chapter upon the subject by saying, that " it seems it may be now safely asserted to be the law of the court that the children have no right to a provision out of their mother's equitable portion after her death, unless there has been a decree or an agreement to that effect, in her lifetime, of which she has not relinquished her benefit." In this case the children have no claim to a provision except on the ground of an original equity, which we are not prepared to admit as existing in their behalf, there having been no decree in favor of their mother under which they might claim. § 226. The question has been made whether the children ' 5 B. Monroe, Ky. Reports, 557. ' See Clancy on Rights, 532. [117] CHAP. IX.] CHILDBEN'3 EQITITT. [§ 228 have any substantive and independent right to claim a settle- ment after the death of their mother, if a settlement was not directed during her life. In the case of Harle v. Greenbank,^ Lord Hardwicke appears to state that as a doubtful point; and that he conceives there was no case determining that the child- ren have such right. His lordship seems not to have recollected the case that was before him, Grosvenor v. Lane,^ in which he took notice of such a decree, though the question before him was not upon the point. That was the case of the second husband endeavoring to reduce his wife's fortune into possession ; and the court directed a settlement upon the child. The immediate point in the cause before Lord Hardwicke turned upon the right of the child absolutely to the whole legacy, in consequence of an appropriation of it by the second husband. § 227. In a subsequent case, Scriven v. Tapley,' Sir Thomas Clarke, as a matter of course, taking it as the ordinary equity, directed a proposal by the representative for a settlement upon the child, the wife being dead. That part of the decree, it is true, was reversed by Lord Northington ; but the opinion that children have that equity in their own right, and independent of any claim through the mother, prevailed so much that not- withstanding that reversal, in a year and a half afterwards. Sir Thomas Sewell, in Cockel v. Phips,'' made precisely the same decree. Every one knows how intimately Sir Thomas Sewell was acquainted with the practice of the court. § 228. There is, therefore, a great deal of authority in oppo- sition to that decision of Lord Northington in Scriven v. Tapley, all weighing strongly in favor of the right of children claiming under a decree in favor of their mother ; for, if their right to come with an original demand for a settlement upon them, their mother having died without demanding any settlement, is esta- blished, d fortiori, if she has claimed, and the court has directed a settlement, the children must be entitled. As to that there are very few cases, but all are one way. The doctrine, as far as there is any memorial of it, is uniform ; and it is upon the ' 2 Atk. 695 and 717. » Amb. 509 ; Eden, 337. « 2 Atkyns, 180. * 1 Dick. 391. [118] § 231] CHILDEEN'S equity. [chap. IX. uniform habitual doctrine of the court that you are least likely to find cases; and, in the cases that have occurred, the court has interposed not upon any controversy between the parties, but upon its own doctrine. § 229. In Martin v. Mitchell, the husband claimed the fund, and the court would not permit him to take it, but directed the former order for a settlement upon the wife to be prosecuted. In Eowe v. Jackson, a similar application appears to have pro- duced a similar refusal ; and both these cases were before Lord Thurlow. No ground is laid upon which I should be induced to depart from the established doctrine. "We can look nowhere but to the practice of the court for the extent of that doctrine. Here we find it. There is no instance in which the husband has succeeded in getting money out of the court without making a provision for the children.* § 230. "Whenever a woman insists upon her equity to a set- tlement, it will always be extended to her children, and a refer- ence to the Master will, as in Lady Elibank v. Montolieu, be directed to ascertain what is a proper settlement to be made upon her and her children.^ But the equity to a settlement is strictly personal to the wife. If, therefore, she dies before assert- ing her right, her children cannot insist upon a settlement. § 231. Thus in Scriven v. Tapley,' where a man, after the death of his wife, leaving a daughter, filed a bill to obtain the payment of £300, to which his wife was entitled. Lord North- ington, reversing the decision of Sir Thomas Clarke, M.R., held that the daughter had no equity to a settlement out of it. " The equity of compelling' settlements," observed his lordship, " first arose upon the husband's coming to this court for assistance. It is personal to the wife, and, if carried further, would be attended with ill consequences to creditors. There is no case where the court has refused assistance to the husband after the death of the wife upon the terms of his making provision for the child- ■ See White's Equity Cases, 365, 366. ' Johnson v. Johnson, 1 I. & VT. 472. 3 2 Eden, 337. [119] CHAP. IX.] CHILDREN'S EQUITY. [§ 233 ren." Sir William Grant, it will be observed, when Murray v. Lord Blibank came before him, cited the decision of Sir Thomas Sewell, M. E., in Cocket v. Phips,i in support of the decision of Sir Thomas Clarke, which he seems to have preferred to that of Lord Northington. However, Sir Thomas Plumer, M. R, in his elaborate judgment in Lloyd v. Williams,^ said, that on consulting the Eegister's book he found the point never arose in Cocket v. Phips, and that no case had touched upon the deci- sion of Lord Northington in Scriven v. Tapley, and that from that time the decision had been uniformly according to that case, and that it would indeed have been surprising if so cor- rect a judge as Sir Thomas Sewell should, so soon after the decision in Scriven v. Tapley, have acted in direct contradiction to it. § 282. The wife, therefore, may, at any time before the settle- ment is actually completed, waive her right to it, and thus defeat the interests of her children. "That the children," observes Lord Cottenham, "have no equity of their own; that it is only the equity they obtain through the consent of the mother, is suffi- ciently clear from the fact that if the mother, having attained the age of twenty-one, comes into court and consents that the property shall be paid over to the husband, the court will per- mit it to be paid over without reference to the interests of the children ; but in no instance are the children permitted to assert an independent equity of their own, and in no instance has that right ever been permitted against the mother. It is against the father that the court exercises jurisdiction, to exclude him from those rights which the law would otherwise give him; and then the court deals with those rights as between the mother, whose property it is, and as between the children of the marriage, in such a way as may be thought for the interests of the family."^ § 233. Sir Thomas Plumer, in Lloyd v. Williams," after an elaborate review of all the authorities, observes, that all the cases concur in showing that children have no right to a settle- ment "independent of contract or decreed 1 Dick. 391. ' Hodges v. Hodges, 11 Bligh. N. S. 104. 1 Madd. 464. < 1 Madd. 467. [120] § 235] children's equity. [chap. ix. When tlie wife lias entered into a contract, or has obtained a decree for a settlement,-the interests of the children will not be defeated if she die without waiving it. Thus, as in Lady Eli- bank V. Montolieu, and Murray v. Lord Elibank, where a decree is made referring to the Master to approve of a proper settle- ment, and the wife dies without waiving it (which, as before observed, she can do), her children may, by supplemental bill, claim the benefit of a decree, although no proposals for a settle- ment may have been laid before the Master, and although they may not have been mentioned in the decree.' § 2S4. But if no mention is made of the children, the omis- sion, if it has been long acquiesced in, will not be supplied. Thus in Johnson v. Johnson,'' where the interest of a fund in court was directed to be paid to the separate use of a married woman for life, with liberty for those entitled on her death to apply. Sir Thomas Plumer, M. E., said, that the court ought to have referred it to the Master to approve of a proper settle- ment instead of making that order, but that, as it was made thirty-four years ago, it could not then be altered. . In Lloyd v. Williams,' the wife of a bankrupt being entitled to a legacy, she claimed her right to a settlement out of it, and an agreement was thereupon entered into between the assignees and the executor, whereby, in consideration of a sum to be paid to the assignees, a settlement was to be made upon the wife and her children. The bankrupt obtained his certificate in the life- time of his wife, who died before any settlement was made, in pursuance of the agreement, leaving- an only daughter. Sir Thomas Plumer, V. C, held that the death of the mother did not disappoint the claim of the child. § 235. In Steinmetz v. Halthin,'' where a bill had been filed by trustees for the administration of the trust property, a mar- ried woman, entitled to a part of it, died before decree, and with- out having put in her answer ; yet Sir John Leach, V. C, held, ' See Kowe v. Jaoksan, Dick, 604; Groves v. Perkins, 6 Sim. 584; S. C. Groves v. Clarke, 1 Kee. 132. 'i 1 I. & W. 479. 3 1 Madd. 450. * 1 G. & I. 65. [121] CHAP. 12.] children's EQUITY. [§ 236 that upon the bill being filed the equity of the wife attached upon the property; and that her death 'pending the suit, with- out having waived her equity, though before answer, gave to the children an immediate title to the provision that the wife would have acquired if living. However, in De la Garde v. Lempriere,' where a bill was filed for the administration of an estate, out of which a married woman, who was made a defend- ant, was entitled to a legacy, a decree was made for taking the accounts and for making certain inquiries. The married woman died before the report was made, and without having claimed any right to a settlement. Lord Langdale, M. E., held that her children had no equity to a settlement. "In this case," observed his lordship, "the wife filed no bill claiming a settlement, and she died before any order for a settlement was made. If the case of Steinmetz v. Halthin had been followed by others, I should have considered myself bound by it; but standing alone, and being, as it appears to me, contrary to the previously exist- ing rules on this subject, I do not consider myself to be at liberty to act upon it without considering the principles on which it is founded." § 236. " In all cases the equity of the wife is personal, and it arises upon the vesting of a legacy in her. It may be defeated by a voluntary payment of the executors to her husband, who has a legal right to receive it and give a discharge for it. If the payment is to be made through the medium of the court her equity will be enforced if she desires it, but not otherwise. She may abandon it, in which case her children can claim no- thing ; and if she claims it for herself, the court requires the benefit to be extended to her children. Her equity, and the equity of her children, are ti;eated as one equity, to be enforced or not at her option. If the equity were considered as attached to the property on the filing of the bill, it Aust, I apprehend, be considered for the benefit of her children at the same time ; but if so, she could not afterwards waive it for herself, because her equity and theirs are one ; and as it is admitted that she can waive it after the institution of the suit, it seems to me to ' 6 Beav. 344. [122] § 238] childeen's equity. [chap. is. follow that it is not an equity, which, upon the filing of the bill, attaches upon the property for the benefit of the chlildren." § 237. "It is true that after filing the bill the discretion which the trustee or executor had to pay the wife's legacy to the hus- band is greatly altered. The filing of the bill has, it has been said, made the court the trustee, and if the wife be living the court will not pay the wife's legacy to the husband if she de- sires a settlement, or unless she waives it ; but where death has made any option on her part impossible, when nothing has occurred from which it can be concluded that she has made an option, there seems to be no reason why the legal right of the husband should not prevail ; and I am, therefore, of opinion, notwithstanding the case of Steinmetz v. Halthin, that in this case the wife's equity did not attach to the property for the benefit of the children, on the institution of the suit, or before her death ; but that upon her death, before decree and before any arrangement for a settlement, her legal representative became entitled to the legacy." § 238. In Lloyd v. Mason,' a married woman entitled to a legacy appeared by her counsel at the hearing of the cause, and claimed her equity to a settlement out of the fund. The legacy was directed to be carried to the separate account of the husband and wife. The husband was a bankrupt, and his assignee sold his interest in the legacy. The solicitors for the purchase and for the wife agreed to refer the claim of the wife to their coun- sel, and the counsel determined that she was entitled to a set- tlement of a moiety, subject to the costs. Before any further steps were taken the wife died, leaving children. It was held by Sir James Wjgram, V. C, that the husband, and those claim- ing under him, were by the steps which had been taken bound to allow a settlement of part of the fund upon the wife and children, and that upon the death of the wife the children were entitled to the portion which would have been settled. "If," said his honor, " in order to decide this case, an obligation had been imposed upon me of deciding between the conflicting • 5 Hare, 149. [123] CHAP, IX.J OHILDEEN'S EQUITY. [§ 241 opinions of Sir John Leach and Lord Langdale, I should cer- tainly have taken a great deal of time to consider the matter. But I may, I think, decide the case without expressing an opinion on that point ; and the only observation which it will be necessary to make is this : — § 239. "It appears that the .question whether children can, after the death of their mother, insist upon an equity to a set- tlement, depends not upon the question whether the mother was bound, but upon the question whether the father was bound. It is clear that an order referring it to the Master to approve of a,settlement binds the husband, though it does not necessarily bind the wife. There may be a case in which the wife is not absolutely bound, but in which, as against the hus- band, the children are entitled to the benefit of the mother's equity. If the husband is bound, the children are certainly entitled. The question whether the husband is or is not bound must be governed by the ordinary principles of the court." § 240. In accordance with this opinion of his honor, it is clearly settled that, although the husband in the event of the wife's death is bound by a contract or decree for a settlement, yet the wife can, at any time before it is actually made, waive her equity to a settlement. The opinion of Sir John Leach, indeed, was at one time contrary. Thus, in Fenner v. Taylor,' where the husband of a woman entitled to a fund in court signed a written agreement that he would settle half the wife's fortune upon her, Sir John Leach, Y. C, held that the wife could not waive her right to a settlement so as to defeat her children. "Where the agreement of the husband," observes his honor, "is carried into effect by the execution of a proper deed, it is not argued that the wife can then waive it; and upon principle, and by analogy, it should seem that in equity there is no dis- tinction between the agreement and the deed. § 241. "Upon the whole, therefore, I come to the conclusion that this is an agreement which enures to the benefit of the children, and would be executed in this court upon a bill filed ' 1 Sim. 169. [124 J § 242] children's equity. [chap. IX. by them, and cannot, therefore, be waived by the wife." Sir John Leach, however, was not aware that Sir William Grant, M. E., had upon that identical agreement, but with reference to another portion of the fund, held that the wife might, notwith- standing the agreement, waive all right of herself and her children to a settlement under it; and Lord Brougham, ap- proving of the decision of Sir William Grant, reversed that of Sir John Leach.* § 242. And Sir John, when the wife waived her right to another portion of the same fund, allowed it to be paid to her husband; but he said that the reasons upon which he had for- merly come to a different opinion (and to which he still felt dis- posed to adhere) appeared to him to be of considerable weight.' But if the wife, upon the bankruptcy of her husband, establish her equity to a settlement, as against his assignee, she will not be allowed afterwards to waive it in favor of her husband, so as to defeat the rights of her children, although she might do so in favor of the assignees.' ' 2 Euss. and My. 190. ^ Fenner v. Taylor, 2 Russ. and My. 195. ' Barker v. Lea, 6 Madd. 330 ; Whitten v. Sawyer, 1 Bear. 593. [125] CHAP. X.] WAIVER OP SETTLEMENT. [§ 244 CHAPTER X. WAIVER OF SETTLEMENT. § 243. Where the husband and wife have united in a bill seeking the aid of the court to compel the defendant as exe- cutor to pay over to the husband a legacy in his hands to which the wife is entitled. The executor alone demands a settlement for the wife out of the estate in his hands. She does not ask it, but is solicitous that it shall be decreed to her husband. She married, it is true, in opposition to the wishes of her friends; but her husband is proved to be industrious, frugal, and unex- ceptionable in his habits and moral character. He treats his wife with kindness and affection, and no reason exists why the court, in opposition to her wishes, should insist upon a settle- ment, except that the husband has very little property of his own. § 244. It is competent, however, for the wife to agree that the fund shall be paid over to the husband. The court will, it is true, under certain circumstances, require a settlement to be made by the husband, notwithstanding her consent to the con- trary.' As the husband, however, is not involved in debt, as he is industrious and economical in his habits, and careful and pru- dent in the management of his property, living with his wife in harmony, who confides in him, and joins in his application for the payment of this fund to him, we are of opinion that the Chancellor should not require the fund to be settled upon the wife, but should decree its payment to the husband, adopting the precautionary measure of ascertaining, by the examination of the wife in open court, whether or not she waives a settle ment, and consents that the money shall be paid over to her ' 2 story's Equity, 644. [126] § 244] WAIVER OF SETTLEMENT. [OHAP. X. husband. And if the wife shall not have attained the age of twenty-one, retaining the cause until that time arrives, so that she may be of full age when such examination is made and consent given.^ ' Taylor and Wife v. Anderson's Executor, 7 B. Monroe, 553. In Bartholomew, by his next friend, v. Finnemore (17 Barbour, 429), an action was brought before a justice of the peace on a promissory note for $30, payable to the father of the plaintiff, and a bank note for $5. The plaintiff being under age, bought a horse of defendant, for which he gave the aforesaid ; after keeping him a month, he tendered him back to the defendant as unsound. It was proved that the horse had been injured while in his possession; the cause was tried by a jury, who found a verdict for defendant ; this judgment was afterwards reversed by the County Court, and the defendant appealed. It is quite evident that the trade was made between the parties with the knowledge of the father of the plaintiff, and with his consent. He was present and indorsed the note, which was part of the consideration given for the horse ; he also furnished some money, which was, probably, paid by the plaintiff on that occasion. If so, as he was the natural guardian of the plaintiff, this case disposes of an objection suggested by Chancellor Jones in Safford v. Eoof (9 Cowan, 626), that an infant can make no contract during his wardship. An objection which has not been found to prevail. Generally a contract can be rescinded in toto by one of the parties only where the other can be placed in the same situation he occupied when the contract was made. And if the rescission is on the ground of fraud, it must be done promptly and unreservedly. The jury must have found that the defendant had not been guilty of fraud, and also that the horse had been misused by the plaintiff, and was of less value when tendered back than at the time of the trade. There was evidence to that effect, and one witness testified that the depreciation was one-half his value. It also appears that the plaintiff knew of the supposed defects of which he now complains within a few days after he took the horse. The only ques- tion then is, whether the plaintiff, being an infant, could rescind or avoid the contract, and recover back the property under these circumstances. Nearly all the contracts of an infant, except for necessaries, are voidable at his election ; and the better opinion seems to be, that his executory con- tracts, and contracts of sale of his personal property, may be avoided during his minority. Though that has been doubted, where he sells chattels and delivers them with his own hand. But admitting he can do this d,uring his minority ; in the case now under consideration the contract was executed, and there are several decisions that if an infant has executed a contract on his part by the payment of money, or delivery of property, he cannot afterwards disaffirm it, and recover back the money or claim a return of the property, without restoring to the other party the consideration received from him. In Newry, &c., E. Co. v, Coombe (5 Exch. R. 565), the infant had received [127] CHAP. X.] WAIVEE OF SETTLEMENT. [§ 246 § 245. Where a husband and wife having united in a request to the father of the husband, to borrow money for their use, and made power of attorney to the brother of the husband, to sell the land of the wife to repay the borrowed money ; after the sale of the land the wife sought to have the proceeds of the land decreed to her : Held, that it could not be done. When the wife has parted with her right in land, for the benefit of herself and husband, she cannot reclaim it, or the proceeds thereof.' § 246. In Wright v. Arnold,' where the wife was present, assented to the sale, and did not assert any claim to the pro- perty, it was held that she must be regarded as having induced the purchaser to make the contract, and she was estopped, to deprive him of the benefit thereof, although it was not pretended that there was any fraud or imposition in the sale, or even that the price paid was inadequate ; for when she presents herself as no advantage whatever. It has been a question whether he can be sued for what he receives upon an executory agreement after he avoids it. However that may be, after he has enjoyed the benefit of it in whole or in part, there is no equity iu his avoiding his contract, and reclaiming the pro- perty he delivered in exchange without restoring the consideration, or at least an equivalent. This the plaintiff did not do, nor offer to do in this case. He had the use of the horse for some time, and, probably, by improper treatment reduced him to one-half his former value, for all of which he offered no com- pensation. (12 Barbour, 429.) It is laid down by Lord Coke "that an infant may bind himself to pay for his necessary meat, drink, apparel, necessary physio, and such other neces- saries, and likewise for his good teaching and instruction, whereby he may profit himself afterwards ; but if he bind himself in an obligation, or other writing, with a penalty for the payment of any of these, that obligation shall not bind him. (Law Lib. 315 ; Macpherson on Infants, 498 ; Co. Litt. 172, a ; Parsons on Contracts, 243, and sequel. ) "An infant may contract for use and occupation for necessary lodgings, and he will be liable on assumpsit for a reasonable rent, though not on his covenant in a lease to pay a fixed rent." (Law Lib. 317 ; Macpherson on Infants, 501.) Whilst we fully admit the power of an infant to bind himself by his con- tract, " for his good teaching and instruction whereby he may profit himself afterwards," we deny that he can, by his contract, bind himself to pay a penalty, or incur a forfeiture. (Slaughter v. Morgan, 1 Metcalfe's Kentucky Rep. 30.) ' Blackwell v. Blaokwell, 9 B. Mon. 412. 2 14 B. Monroe, 643. [128] § 248] WATVEE OF SETTLEMENT. [CHAP. X. a complainant, asking the assistance of the Chancellor, she occu- pied the same attitude that other complainants do. And the doctrine is well settled, that neither infancy nor coverture will constitute any excuse for conduct which in other persons would, as it regards purchasers for a valuable consideration, be deemed unjust and fraudulent.' With her interest in the estate in the hands of the administrator, her husband purchased and paid for a tract of land on which they resided two years. She consented to the sale for the purpose of getting a home. The land was sold by her husband, and the title passed from him, so that the parties cannot be placed in the condition they were before the contract was entered into.'' § 247. It was decided, in the case of Gilbert v. Carlton, that the plaintiff, although a minor of eighteen years, at the time a slave, of which he was the owner, was sold by his father, yet as he was present at the sale, and knew that he was the owner of the slave, and his father had no right to sell it, but did not ap- prise the purchaser of these facts, had thereby precluded himself from asserting his title against him. § 248. In Johnson & Wife v. Green,' where a married woman had sued for, recovered, and received, the value of a slave taken from her and converted: It was held to have as effectually deprived her of any right or property in the slave, as if she had divested herself of her right by the forms expressly pre- scribed by law, by a deed executed in pats. But in Hardin and Wife v. Smith's ExW,"* it was held that the husband and wife could not make any contract during the coverture to dispose of the wife's expectancies as heir to the relations, which would bind the wife after his death. And in Hood v. Hood,* where the wife had united with her husband in a mortgage of her reversionary interest in property ; held that she did not thereby, as to her rights in equity, render it subject to the debts of the husband, as the creditor could not stand upon or occupy a more favorable attitude than the hus- > Davis V. Tingle, &o., 8 B. Mon. 543 ; 1 Story's Equity, 377. ^ Hardin v. Smith, 7 B. Monroe, 392. ■> 7 B. Monroe, 392. ' 17 B. Monroe, 122. = 5 Ben. Monroe, 83. 9 [129] CHAP. X.] WAIVER OF SETTLEMENT. [§ 251 band or assignee who would have to make suitable provision for her.' § 249. In Todd's Heirs v. Wickliffe,^ where a conveyance by the husband and wife was made of the real estate of the wife to a third person with the intent that it be reconveyed to the hus- band alone, to invest him with the title to the estate ; it was held valid if made without the coercion of the husband or exercise of any undue influence over the wife. Where the wife gives the real estate, or it is conveyed for marriage or any other valuable consideration, in such cases it will not be presumed to be fraudu- lent, and proof of its fairness will not be required.' § 250. As to improper influence in such cases, the rule in equity as to the power of a married woman to bestow her sepa- rate estate upon her husband, has an important bearing. Her right to give her separate estate to her husband is firmly esta- blished. It is true, courts of equity examine every such trans- action with great caution and with some apprehension of undue influence, but unless such influence is evinced the gift will be considered valid.'' If, however, the doctrine contended for, that in the case of a gift by the wife to the husband, a presumption of improper influence arises, had been recognized as just, courts of equity would never have sanctioned such gifts, but must have declared them illegal and void.' § 251. The rule of law which requires of a guardian, trustee, or attorney, contracting with a ward cestui que trust, or client to show the entire fairness of the transaction, has never been applied to husband and wife where the wife conveys property to the husband, as by the ancient common law there could be no dealings between them. The statute of 1796° authorizes femes covert, in conjunction 1 As in Halloway v. Conner's Heira, 3 B. Monroe, 397 ; and Thompson v. Kennedy, 4 B. Monroe, 235. 2 18 B. Mon. 909. ' Scarborough v. Watkins, 9 B. Mon. 546. * 2 Story's Equity Jurisprudence, 764, 765 ; Clancy on Married Women, 350. ' Il5- 547. 6 Stat. Law, 440, sec. 4. £130] § 253] WAIVER OF SETTLEMENT. [CHAP. X. with their husbands, to convey their estate of inheritance upon privy examination in the manner pointed out by that act, and declares such conveyance to be as effectual to pass all her right as if she were an unmarried woman. § 252. In Stuart v. Wilder,' it was held, that by the 20th and 21st sections of the Ee vised Statutes of Kentucky,'' on conveyances, that a wife may convey any real or personal estate which she may own by a joint deed, or by her separate deed where the husband had before conveyed, but the convey- ance must be to the same person ; the only discrimination in regard to property conveyed to the separate use of the wife is, that if it be a gift she may convey it by the consent of the donor or his personal representative. No discrimination is made where there is a power given to sell; the terms of prohibition are general, embracing all separate estates. § 253. As to the policy of which the court said: "It seems to have been the intention of the legislature, by depriving mar- ried women of the power to alienate her separate estate, to secure her in the enjoyment of it during her life, or at least during the continuance of her coverture. She can dispose of it by will, to take effect after her death ; but during her coverture she cannot make any disposition of it, to take effect in her lifetime. A radical change in the previous law has been thus effected. The change was made, no doubt, for the purpose of protecting this description of property, which is generally conveyed to a woman to secure her against want, from the operation of those influ- ences which might be brought to bear upon her, to induce her to sell or dispose of it. Gases may undoubtedly occur where the power of alienation might be exercised advantageously. But in its general operation the exercise of such a power more frequently than otherwise results in the total waste and dissipa- tion of the estate. But with respect to the policy of this change in the law it is not a matter for our consideration, except so far as may aid us in ascertaining the intention of the legislature, and thus enable us to give a proper construction to the statute." ' 17 Ben. Monroe, 58-9. « Rer. Stat. p. 199. [131] CHAP. ZI.] LIABILITY OF THE WIFE'S ESTATE, ETC. [§ 255 CHAPTER XI. THE CHARACTER AND LIABILITY OF THE WIFE'S ESTATE DEFINED, AND HOW CONSIDERED AS HER SEPARATE ESTATE. § 254. To prevent the great injustice whicli might otherwise arise, inasmuch as the wife's creditors had not the means at law of compelling payment of her debts, which she had contracted to pay out of her separate estate, courts of equity undertook to give effect to them, not as personal liabilities, but by laying hold of the, separate property as the only means by which they could be satisfied.^ § 255. The legal rights secured to the wife in her general property, as against the general marital rights of the husband, is not such separate estate. The most approved definition is that the separate estate of a married woman is that alone of which she has the exclusive control and benefit, independent of the husband, and the pro- ceeds of which she may dispose of as she pleases ; and its cha- racter as such must be imparted to the property by the instrument (or power otherwise) by which she is invested with such right to it.^ All her real estate does not belong to her as her separate property;' but it is her general property, and is subject to the marital rights of the husband as before ; since modified, and as restricted by the recent marital acts, and is still subject to her rights for an equitable settlement when asserted, as the case may be ; and for this general property, whilst living, they must both sue and be sued.'' Although the wife's capacity to contract is ' Spenoe's History of Equity, 324. 2 Petty V. Malier, 14 Ben. Monroe, 247 ; Johnson v. Jones, 12 ib. 329 ; Colvin V. Currier, 22 Barber's N. Y. Rep. 387. 3 See as to this equity, chapter 8, sections 156-8 ; Smith v. Lontt, 1 J. P. Metoalf, 486. * Petty V. Malier, 14 Ben. Monroe, 247. [132] I 255] LIABILITY OF THE WIPE'S ESTATE, ETC. [CHAP. XI. put an end to by the marriage, and her property falls in general under the disposal of her husband, yet it frequently happens that either by a settlement made with trustess, with the consent of the husband before marriage, or where they separate, and a separate maintenance is allowed, or from some other source, the wife is entitled to separate property, over which, in a court of equity, the husband has no control. Her having such sepa- rate property does not, indeed, remove her incapacity to con- tract; but she has a power of charging or disposing of it, subject, of course, to the conditions and limitations with which the property was clothed on her becoming entitled ; and it has been decided in the Court of Chancery that a general personal en- gagement of the wife, as for instance a bond given by a/eme covert as surety,^ or a bond given, or promissory note given as a security for money borrowed by her,^ or given jointly with the husband as a security for his debt,' although the instrument is void as a contract, both in law and equity, and although it contains no reference to her separate estate, will be regarded as evidence of an intention on her part to charge her own separate property, and will accordingly operate as a lien upon it, in respect of which she is liable to be proceeded against in that court: where her discretion is freely exercised the contract will be obligatory;^ and it may be taken as a general rule that when it appears, or can be inferred, that the wife intends to charge her separate maintenance with a debt incurred for necessaries, the creditor is entitled to receive his debt out of the fund provided for her separate maintenance;" and, as we have before seen, although at law the wife cannot borrow money to lay out in necessaries, but at the peril of the lender, who must lay it out for her,^ yet in equity it is sufiScient to charge the husband, if the money be actually applied to the purpose for which it was borrowed, though the lender neglect to see to the application.' ' 15 Ves. 596. 2 17 Ves. 365 ; 2 P. Wms. 144. 3 1 Bro. Ch. c. 16, 9 Ves. 188, 486 ; 2 Ves. Jur. 138 ; 2 P. Wms. 144 ; 2 Atk. 68 ; 11 Ves. 302 ; 1 Ves. and Beame, 121-3. * 16 Ves. Jr. 116 ; 8 Mad. 387 ; and see Chitty's Com. Law, 39, 40. 5 3 Mad. 387. « Salk. 387. • 'IP. Wms. 483 ; Prec. Ch. 502. [133] CHAP. XI.] LIABILITY OF THE WIFE'S ESTATE, ETC. [§ 258 § 256. Such separate estate was a provision for the wife's separate use and benefit, independent of her husband, in which he had no interest, over which he had no legal right of control, which was usually, though not necessarily or invariably, held by her trustee, and which she disposed of by way of appoint- ment. She could not at common law hold the legal title to property, either personal or real, for the reason that during her state of coverture she and her husband were considered one person, and her identity, so far at least as the right to hold property was involved, was lost or merged in him. Hence, there was no way at law in which such separate estate of the wife could be reached to satisfy demands upon it, however equitable and just, although they had been created by her for her individual benefit, and upon the credit even of her separate estate.^ § 257. The only difference between the separate estate of a married woman, as inherent in, and recognized and acted upon, by courts of equity for centuries (whereby the law thereof by our written constitutions is made and declared), and their title and rights declared and further secured by the recent legisla- tive enactments, is that the former is an equitable, and the latter still a legal, estate. They are each still equally inaccessible at law to creditors, and there is quite as much necessity and reason for applying the doctrine of the former to the latter.^ § 258. In the case of Colvin v. Currier,' the plaintiff alleged that at the death of Ethan Colvin, intestate, in March, 1854, she was appointed his administratrix. Sarah Ann Currier was in her own right, on the 1st day of January, 1852, seised in fee of a piece of land, particularly described in the complaint. At that time George W. Currier was and still is the husband of the said Sarah Ann. Shortly after the aforesaid time they built a dwelling-house and other buildings on the land, during the life- time of the said Ethan Colvin: he being a carpenter and joiner by trade, was employed to do work upon the buildings. He ' 2 Story's Equity, sections 1366-8. ' Colvin V. Currier (per Willis, J.), 22 Barber's N. Y. Eep. 387. " 22 Barbour's N. Y. Kep. 372. [134] § 261] LIABILITY OP THE WIFE'S ESTATE, ETC. [CHAP. XI. not only worked, but furnished materials at their request, for which they promised to pay. By the labor and materials fur- nished by Oolvin the property was increased in value from six hundred to five thousand dollars. The materials and service rendered were worth six hundred dollars. George W. Currier is irresponsible, and the plaintiff has no means of collecting the demand, except out of the separate estate of the defendant, Sarah Ann Currier, who undertook and promised to pay the same. The plaintiff demanded a decree that the debt be paid out of the separate estate of the said Sarah Ann Currier. Sarah Ann Currier demurred on the following grounds: — § 259. "It appears upon the face of the complaint that there is a defect of parties defendant ; Sarah Ann Currier being joined as a defendant with her husband, George W. Currier. That it appears upon the face of the complaint that several causes of action have been improperly united, being different causes of action against Sarah Ann Currier, and against George W. Cur- rier. That the complaint does not state facts sufiicient to con- stitute a cause of action against the defendant." § 260. If the premises on which the plaintiff's husband in his lifetime erected a dwelling-house, at the request of the de- fendant, Mrs. Currier and her husband, were the separate estate of Mrs. Currier, in the sense and language of a court of equity, there can be no doubt that such property would be liable for the payment of the plaintiff's debt, contracted, as it was, on the faith of the undertaking and agreement of Mrs. Currier, and for the benefit and improvement of her estate.' § 261. Since the decision of Jaques v. The Methodist Epis- copal Church, in the court for the correction of errors,'' the doctrine that z,feme covert, with respect to her separate estate, is to be regarded in a court of equity as a feme sole, and may dis- pose of her property by appointment, or bind it by debts con- ' But see the oases of Pell v. Cole, 2 J. P. Metoalf Ky. Rep. ; Daniel v. Ro- binson, 18 Ben. Monroe, 304, cited under the Kentucky statutes, in the appen- dix, in construing the same. 2 17 John. 548. [135] CHAP. XI.j LIABILITY OF THE WIPE'S ESTATE, ETC. [§ 263 tracted for the benefit of the estate, or for her own benefit, upon the credit of such separate estate, may in this state be regarded as settled law. This doctrine has since been repeatedly applied in the State of New York, and twice since has been reasserted by the court for the correction of errors ; first, in affirming the decision of the Chancellor in the case of the North American Coal Company v. Dyett ;' and again, in the case of Gardner v, Gardner." § 262. In the latter case. Judge Cowen states the rule very clearly. He says: "If the. wife hold an estate separate from, and independent of, her husband, as she may do in equity, chancery considers her, in respect to her power over this estate, as feme sole; and although she is incapable of charging herself at law, and equally incapable in equity of charging herself personally with debts, yet I think the better opinion is, that debts contracted by her expressly, on her own account, shall in all cases be considered an appointment or appropriation for the benefit of the creditor, as to so much of her separate estate as is sufficient to pay the debt." § 263. This right of disposition has been regarded as abso- lute, unless the wife was especially restrained by the instrument under which the estate was created ; and except, also, that it was for some time doubted whether she could convey her separate estate by deed without the concurrence of her husband. This doubt is, however, finally solved by the decision of the Court of Appeals in the Albany Fire Ins. Co. v. Bay.^ This doctrine was not questioned by the learned judge who decided this case at special term. The demurrer was sustained, not upon the ground that the plaintiff's debt would not in equity be a charge on Mrs. Curierr's estate, but on the ground that her estate was strictly a legal, and not an equitable one. The learned judge said: "A merely legal estate of the wife, although under the present statutes of this State she may hold it to her sole and separate use, and convey and devise it as if she were unmarried, and the same is not subject to her husband's disposal, or liable for 7 Paige, 9. ' 22 Wend. 526. ' 4 Comst. 9. [136] § 266] LIABILITY OF THE WIFE'S ESTATE, ETC. [CHAP. XI. his debts, is not a separate estate in the sense of those words, in the law relating to married women." § 264. It seems to be supposed by some that the New York acts of 1848 and 1849,' in relation to married women, have created a separate estate, absolute and unqualified in the wife as a distinct legal estate, to which the doctrine of courts of equity, in regard to the separate estate of married women, does not apply. To this view of those statutes, and their force of con- struction, I cannot agree. The separate estate created by those statutes is, I insist, not without the jurisdiction of the court any more than if it were the separate estate known to the courts of equity hefore the passage of those acts. The reason of the law applies to such estates as much as if it were created by a marriage settlement, or a devise or conveyance to trustees for the benefit of married women.^ § 265. A separate estate belonging to a married woman should be considered the separate estate recognized by a court of equity, however acquired. A married woman is under the particular jurisdiction of this court, considered as a court of equity. She cannot be sued at law. This court disregards the disability of coverture, and treats her as a. feme sole for her benefit; it allows her to sue and be sued as such, in respect to her separate pro- perty. At the common law she could neither sue nor be sued, and scarcely had a single recognized right separate and apart from her husband in respect to property. Her legal existence was deemed merged in his. She and her husband constituted one person. § 266. At common law the husband was entitled to her per- sonal property, including choses in action belonging to his wife at the time of the marriage, and he had & freehold interest in her legal estate.^ These strict rules of common law have been ' See the Kentucky acts, and notes of decisions thereunder. (Appendix.) 2 It is the instrument or power that creates this separate estate (14 B. Mon- roe, 247). ' Co. Litt. 351, a and 5; Clancy's Bights of Married Women, 161. [137] CHAP. XI.] LIABILITY OF THE WIFE'S ESTATE, ETC. [§ 268 gradually relaxing, through the interventioa of courts of equity in modern times. Through marriage settlements, devises and conveyances in trust are upheld and enforced in courts of equity, and the rights of married women to have such separate estates independent of their husbands, has been long recognized. § 267. The New York acts of 1848 and 1849 were statutes passed in furtherance of the policy of relaxing the strict rules of the common law with respect to married women. Those acts repeal pro tanto the common law rules which give the husband a right to the personal property of his wife, and a free- hold interest in her estate of inheritance, subjecting the same to the payment of his debts. Those statutes are but the adop- tion of the equitable rules of this court, considered as a court of equity, and applying those rules to all property of the wife, whether legal or equitable. These acts were designed to take away, or restrain and restrict, the marital rights of the husband with respect to the property of the wife. The evil complained of was the too great subjection of the property of the wife at common law to the husband and his creditors. § 268. The remedy was, to apply and extend the rule of this court in respect to the separate property of married women, to all property belonging to the wife. It is true the property is thus converted into a legal estate, but it is none the less a sepa- rate estate, independent of the husband. In respect to her separate estate in equity, the wife could be sued and her estate charged with her debts. The New York acts of 1848 and 1849,' although they allow a married woman "to hold to her sole and separate use, and con- vey and devise real and personal property, and any interest or estate therein, and the rents, issues, and profits thereof, in the same manner and with like effect as if she was unmarried, and provided that the same shall not be subject to the disposal of her husband, nor liable for his debts," they do not allow her to make contracts except with respect to such property, and they do not permit her to be sued in courts of law. In respect to all other ' Now amended by that of I860. (See Appendix.) [138] § 271] LIABILITY OF THE WIFE'S ESTATE, ETC. [CHAP. SI. contracts made by her,' they are void still, as at common law, and such contracts as she may make are only recognizable and capable of being enforced in a court of equity. So far as the courts of law are concerned, the disability of coverture still re- mains in respect to all the contracts or property of married women. § 269. It is a mistake to consider the jurisdiction which courts of equity in England and the United States have long exercised over the separate property of married women, as depending en- tirely upon the doctrine of trusts. But if .,t Price V. Sessions, 3 How. 624. ' Const. Art. 1, § 6. 2 2 Brock. 286. ' Taylor v. Porter, 4 Hill, 140. [149] OHAP. XII.] SEPABATB ESTATE. [§ 300 § 297. Denio, J. "When the act of 1848, for the more effectual protection of the property of married -women, took effect, the rights of the respondent, "Wm. -Gregg, respecting the legacy bequeathed to his -wife by the will of her father, -were as follows : He -was entitled to prosecute for it, and, when recovered, to take the money to his own use. He has a right to assign it for a valuable consideration, and such assignment would rest in the assignee, and would cut off the wife's right to it in the event of her surviving him, and he might also release and discharge it. These rights were, however, subject to the jurisdiction of the courts to compel him to make a suitable provision for her under the head of what is called the wife's equity. § 298. In the event of her dying before him, and before he had recovered the legacy, it would belong to him absolutely; and should he afterwards die, leaving the money uncollected, his executor or administrator would be entitled to collect it as a portion of his assets, without taking out administration on her estate. But should he die, leaving her surviving, without having reduced the legacy to possession, and without having assigned or released it, or recovered a judgment or decree in his sole name for the money, it would survive to her, and his representatives would have no interest in it.' § 299. The single question in this cause is, whether these rights of the husband to the legacy in question were taken away by the act of the legislature referred to. When that act was passed, he was prosecuting, in the joint names of himself and his wife, to obtain a decree of the surrogate for the payment of the legacy : and but for the statute it is entirely certain that he would have been entitled to a decree which would have enabled him to recover the money and appropriate it to his own use. § 300. It seems to me impossible so to construe the second section of this statute as to limit its provisions to property to ' 2 Kent's Com. 135 and seq. ; 1 Roper on Husband and Wife, 227 ; Schuy- ler V. Hoyle, 5 John. C. E. 196 ; 2 R. S. 75, § 29 ; Roosevelt v. Ellithorp, 10 Paige, 415—420 ; Lookwood v. Stockholm, 11 id. 87—91. [150] § 302] SEPAEATE ESTATE. [CHAP. XII. be acquired by a wife, then married, after its passage, as was done in Snyder v. Snyder.' The section relates to persons in a state of coverture when the act was passed. It speaks of the real and personal property of the wife, and declares that it shall be her sole and separate property. The language is sufficiently broad to embrace the property which she owned at the passage of the act. Still, were it not for the concluding words of the section, we might, perhaps, apply to the provision the doctrine of Dash V. Yan Kleek,^ and of the class of cases which hold that general words in a statute should be construed prospect- ively where a different interpretation would take away vested rights. § 301. But the act declares that the property of the wife shall be her sole and separate property, as if she were a single female, except so far as the same may be liable for the debts of her husband theretofore contracted. This last expression could not be predi- cated of property which might be acquired, or be given to the wife after the passage of this act, for all such property would be completely protected by the third section. Neither can the provision be limited to the strictly separate property of women then married, for as to such property there would be no need of such a statute ; and, besides, it would not ordinarily be liable for the debts of the husband. I am, therefore, constrained to believe that the true meaning of the section is, that all property which the wife owned at the time of the marriage, and that all such as she had acquired by gift, devise, or otherwise, during the coverture, but before the passing of the act, should there- after be deemed to be vested in her as though she were a feme sole, to the exclusion of any title which, by the pre-existing laws, the husband had acquired in it by virtue of the marriage relation, saving only the rights of creditors. "We are to inquire, then, whether the legislature were competent to enact such a law. § 302. I am of opinion that the act, in its application to this case, is a violation of the Constitution of New York. Among the limitations of the powers of government contained in that ■ . — . .. — ^ ' 3 Barb. 621. '7 John. 477. [151] CHAP. XII.] SEPAEATE ESTATE. [§ 304 instrument is the one which declares that "no person shall be deprived of life, liberty, or property, without due process of law '" That the right which the respondent had to this legacy, the instant before the act of 1848 took effect, was property in the justest sense of that term, I cannot doubt. An immediate right of action for the recovery of money, which, when reco- vered, is to belong to the party in whom the right of action exists, subject to be defeated only by the contingency that a person in being may die before a judgment can be obtained, is a valuable pecuniary interest, which deserves protection equally with rights which are absolute and unconditional. Besides, this was an interest which the respondent might sell, and for which he might receive the consideration to his own use. This pro- perty, the act, if valid, has effectually deprived him of. It declares it shall no longer belong to him, but shall be the pro- perty of his wife, as though she were a single female. The act does not fall within the meaning of due process of law. That term, according to Lord Coke, means being brought in to answer according to the old 'law of the land.'^ § 303. The provision was designed to protect the citizen against all mere acts of power, whether flowing from the legis- lative or executive branches of the government. It does not, of course, touch the right of the State to appropriate private property to public use upon making due compensation, which is fully recognized in another part of the Constitution ; but no power in the State can legally confer upon one person, or class of persons, the property of another person, or class, without their consent, whatever motives of policy may exist in favor of such transfer. § 304. I have intentionally forborne to rely upon the prin- ciple mentioned in some cases, of a supposed implied restriction upon legislative power, arising out of the nature of free institu- tions; firstly, because, I suppose, a judgment in favor of the respondent will stand firmly upon express constitutional provi- ' Const, of N. Y. Art. 1, § 6. '' 2 Inst. 60 ; and see also Taylor v. Porter, 4 Hill, 140 ; and cases cited by, Bronson, J., 2 Kent's Com. 13 ; and 18 B. Monroe, 385. [152] § 305] SEPARATE ESTATE. [CHAP. XII. sions; but principally because, as at present advised, I am not prepared to assent to the doctrine that the courts can limit the authority of the legislature by exceptions which are not found in the Constitution itself.' § 805. The constitutional validity of the statute in question has been several times under consideration in the Supreme Court, where views in their result, similar to those which I have expressed, have generally prevailed.^ The judgment of the Supreme Court should be affirmed." ' 2 Kent's Com. 340, and cases cited in note (a) ; Taylor v. Porter, sup. ; Wilkinson v. Leland, 2 Pet. 667. « Snyder v. Snyder, 3 Barb. S. C. R. 621 ; Holmes v. Holmes, 4 id. 295 ; White V. White, 5 id. 474 ; Hurd v. Cass, 9 id. 366. [153] CHAP. XIII.J SEPAEATE ESTATE. [§ 307 CHAPTER XIII. V SEPAEATE ESTATE. § 306. The case of Yale v. Dederer and Wife^ was an appeal from the Supreme Court of New York, on an action to charge the separate estate of Mrs. Dederer with the payment of a pro- missory note she had signed with her husband, IT. A. Dederer, who was a party defendant. On the trial at special term in Chenango, before Mr. Justice Mason, it was proved that the consideration of the note was the price of thirty-eight cows purchased by Mrs. Dederer's husband of the plaintiff. At the time the note was given, Mrs. D. owned three farms in Chenango County, and other personal property separate from her husband. The plaintiff refused to sell the cows without Mrs. Dederer's signature to the note, as security for the sum to be paid for them. It was proved that D. was insolvent; the plaintiff had obtained a judgment against him on this note, an execution upon which has been returned nulla lona, and that he had made a general assignment of his property to his creditors. It was admitted that Mrs. D. had a separate real and personal estate ; but it did not appear when or in what manner she became possessed of it, or whether such estate was legal or equitable. § 307. The judge found that the evidence was not sufficient to establish the fact that the cows were bought for Mrs. D.'s benefit, that they went to enhance her separate estate, or that she signed the note as surety for her husband. He directed judgment, however, charging her separate estate with payment of the note, providing for the appointment of a receiver thereof, and authorizing a sale of her land in default of a deficiency of personal estate to pay the debt. The judgment was an appeal ' 18 N. Y., 4 Smith Eep. [154] § 309] SEPARATE ESTATE. [CHAP. XIII. affirmed at a general term in the sixth district, and Mrs. Dederer appealed to this court. Judge Comstock delivered the following opinion: "If we assume that the lands of Mrs. Dederer, which the plaintiff seeks to charge as her separate estate, are held under a trust for her separate use, and if the trust was created since 1830, the judg- ment appealed from is erroneous, for reasons depending on that assumption alone. By the law of uses and trusts, as revised in that year,' there can be no express trusts in lands, except such as the statute (§ 55) authorizes, and in respect to those it is declared (§ 65) that ' every express trust, valid in its creation (except as otherwise provided for), shall vest the whole estate in the trustees, subject only to the execution of the trust. The persons for whose benefit the trust is created shall take no estate or interest in the lands, but may enforce the performance of the trust in equity.' § 308. Now a married woman may be the beneficiary in any one of the trusts which the statute allows to be created ; but, like other beneficiaries, her power is qualified by the action quoted. She cannot alienate or incumber the title, which is entirely in the trustee. As she takes no 'estate or interest,' she has nothing to dispose of, either absolutely by a sale, or contingently by a charge which may result in a sale.^ The power to dispose of the accruing income under one of these trusts need not now be considered, because the decision under review requires the land itself to be sold in default of personal estate sufficient to pay the debt in question. Without regard, therefore, to incapacity resulting from coverture, Mrs. Dederer could not, on the assumption of a trust, thus dispose of her estate. § 309. I incline to think, however, that we should not pre- sume the existence of any trust upon the case as it is presented to us. In her answer the appellant admits that she has a sepa- rate estate, consisting of certain lots of land and personal pro- ' 1 R. S. pp. 728, 729. " L'Amoureux v. Van Rensselaer, 1 Barb. Ch. Rep. 37 ; Noyes v. Blakeman, 3 Sandf. S. C. R. 531. [155] CHAP. Xlir.] SEPARATE ESTATE. [§ 311 perty, sufficient to satisfy the demand the plaintiff seeks to enforce. But she does not explain the nature of her interest or title ; and the case made on the trial only shows that she owns three farms in the county of Chenango, without any statement as to the mode in which the estate was acquired, or the character of the title by which she claims it. Mr. Dederer appears to have been joined in the suit as husband merely. The character of a trustee for his wife is not imputed to him, and no other party is brought before the court sustaining that relation. § 310. In this posture of the case I think we must assume that the appellant's title is legal and not equitable. Indeed, her admission, and the statement in the case that she has a separate estate in lands, would, as we have seen, be false in fact as in law, if we take for granted the existence of a trust for her benefit, created within the last twenty-eight years. Again, if the plaintiff sought to charge her separate equitable estate, the trustee having the title would be an indispensable party. We should expect, moreover, that the deed or instrument creating the trust would be set forth, in order that the court might de- termine whether its provisions are consistent with the attempt to charge the estate. For although a married woman may charge or dispose of property held in trust for her separate use, it is well settled that she cannot do so in any manner, or for any purpose inconsistent with the restraints which the author of the trust has seen fit to impress upon it.' § 311. The fact found and admitted that Mrs. Dederer has a separate estate, by no means requires an inference that the property is held under a trust. By the statutes of this State, which had been in force several years before this suit was commenced,'' she could acquire and hold in actual possession and enjoyment a separate legal estate in lands and personal property. So, before the statutes were passed, and at the com- mon law, she could hold such an estate in lands vested in ' Jacques v. The Methodist Episcopal Church, 1 John. Ch. Rep. 450 ; S. C. on Appeal, 17 John. 548. ^ Laws of 1848, ch. 200, and of 1849, ch. 375. [1561 § 313] SEPARATE ESTATE. [CHAP. XIII. interest, although not in actual enjoyment while the coverture remained. § 312. Eegarding, then, the appellant as the owner of the lands which are called her separate estate, without the inter- vention of any trust, the plaintiff's case is met by another difficulty. Do the disabilities of coverture prevent her from disposing of, or charging an estate in lands in which she has the legal and the whole title? Until the change which has been mentioned was made by the legislature in the law of trusts, there was a well settled doctrine that a married woman could deal with her separate estate as though she were a feme sole. But this doctrine was a pure creation of the courts of equity. Trusts for the separate use of married women was a marked, although a beneficent innovation upon the rules of the common law. But when the courts of equity sustained their validity, and recognized the wife's estate under them, it seemed to be a necessary result that she should have the power of disposition ; accordingly the power was conceded. In many of the adjudged cases the exercise of this power has been spoken of as an ap- pointment of the estate authorized by the deed or settlement in trust ; but the settled doctrine now is, that she may dispose of or charge the estate in any manner, and for any purpose not conflicting with the instrument under which she acquired it.' The right of disposition must, therefore, be referred to the right of property enjoyed independently of the husband, and not to the theory of appointment pursuant to a power conferred by the author of the trust. She might be restrained by the pro- visions of the trust deed or instrument ; but if not so restrained, she acted as &feme sole in the disposition of her separate estate. § 313. But the separate estates upon the courts of equity engrafted these peculiar doctrines, included necessarily only such rights and interests of the wife as would belong to the husband, but for the limitation to her particular use. Such were personal estates; the rents and profits of lands during coverture, and the iijchoate title which, by the birth of a child, the husband might acquire as the tenant by the courtesy. As ' Jacques v. The Methodist Episcopal Church, supra, and oases cited. [157] CHAP. XIII.] SEPAEATE ESTATE. [§ 315 to all such interests, the assent of the husband to a separate use only manifested, or a direction to that effect by the donor of the estate, would give to the wife all the disposing capacity of a feme sole. But her own reversion in lands, when she owned them at the time of the marriage, was a legal estate descendible to her heirs, to which courts of equity could not and did not well apply the doctrines which have been stated. In reference to such an estate, she had only the disposing capacity which the common law or some enabling statute allowed her. She could divest her title and bar the descent to her heirs, in Eng- land, only by a fine and a recovery; and in the United States only by a conveyance, with certain solemnities of examination and acknowledgment. Her acquisition, through a trust, of equitable rights which at law would manifestly belong to the husband, could not enlarge her capacity to deal with estates which at law as well as in equity were entirely her own. § 314. So an estate in fee might be conveyed directly to a married woman, to her sole and separate use. In such a case equity would convert the husband into a trustee for her, of the rents and profits during the coverture, which otherwise would belong to him. In dealing with those she would have the capacity of a feme sole, upon the principles which have been stated. But in respect to the corpus of the estate, she could not dispose of it, except in the mode prescribed by law; that is, by a fine or recovery, or such other solemnity as the law required for the disposition of estates in land by married women.' § 315. If, however, the deed to her during her coverture, not only conveyed the estate to her, to her sole and separate use, but in terms gave her an absolute power of disposal, then, act- ing under the power specially conferred, it seems she could, without the solemnities required by law, convey the whole estate, although no trust was interposed to protect the exercise of the power.^ But this required the aid of no doctrine of equity peculiar to separate estates, for a married woman may execute ' Roper on Husband and Wife, 182; 2 Story's Eq. § 1392; Clancy's Rights of Married Women, 28, and oases cited in notes to these authorities. * Story's Eq. supra. [158] § 318] SEPARATE ESTATE. [CHAP. 2III. the power without imparting to her the character or capacity of a/eme sole. Equity it seems in such cases, if not the law, pre- served the power, although the donee also held the fee of the lands in respect to which it was to be exercised. § 316. These general principles, which scarcely admit of question, are evidently fatal to the present attempt to charge the fee of Mrs. Dederer's lands, and to dispose of that fee for the satisfaction of her alleged debt. The well known disabili- ties of coverture, as they exist at the common law, prevented her from thus disposing of her real estate. This would be decisive of the case before us, but for the recent legislation of this State, 'for the more effectual protection of the rights of married women." It has not been claimed on the argument that the case is influenced favorably to the plaintiff by these statutes. They, neverthless, seem to require some considera- tion. § 317. The act of 1849, amending the law of 1848, provides that 'any married female may take by inheritance, gift, &c., and hold to her sole and separate use, and convey and devise real and personal -property,' &c., in the same manner and with the like effect as if she were unmarried. In respect to estates acquired and held under the protection of this statute, the dis- abilities of coverture would seem to be removed. A married woman may 'convey and devise' real and personal property as if she were unmarried. She may, therefore, dispose of lands in which she holds the legal title, without joining with her husband in the conveyance, and without the solemnity of pri- vate examination and acknowledgment. § 318. I think it is plain that the statute does not remove the incapacity which prevents her from contracting debts. She may convey and devise her real and personal estate, but her promissory note or other personal engagement is void, as it always was by the rule of the common law. This legal inca- pacity is a far higher protection to married women than the wisest scheme of legislation can be, and we should hardly ' See the statutes of 1848 and 1849, above cited. [159] CHAP. XIII.] SEPARATE ESTATE. [§ 320 expect to find it removed in a statute intended for ' the more effectual protection of her rights.' It is quite another question, however, whether she may not charge her legal estate, held under this statute, in the cases, and to the extent recognized by courts of equity in respect to estates held under a trust for her separate use. The right to charge her separate estate, in equity, resulted from the jus disponendi which courts of equity regarded her as having, and it was a necessary incident of the full enjoyment of her property. § 319. It would seem, for reasons quite similar, that she should have the power to charge an estate acquired, and held under the statute referred to. The estate, it is true, is a legal one; but the disability of coverture which, as we have also seen, was overcome when she acted under a power of disposi- tion conferred by the instrument conveying the estate. But that power is given in the broadest terms by the statute, and I see no reason why a power thus bestowed should not be equal in its results to one conferred by a private instrument. My conclusion, therefore, is, that although the legal disability to contract remains, as at common law, a married woman may, as incidental to the perfect right of property, and power of dispo- sition which she takes under this statute, charge her estate for the purposes and to the extent which the rule in equity has heretofore sanctioned in reference to separate estates. § 320. But without knowing facts which are not stated in the case, such as the time of Mrs. Dederer's marriage, and the time when she acquired the lands in question, it is impossible to say with any certainty Avhether she holds her title under the statute, and with the power of disposition which it confers. If we assume that to be her condition (and the facts may so appear hereafter), then we are brought to the question principally dis- cussed on the argument, and that is, whether she can and does chnrge her separate estate, real or personal, by signing a pro- missory note, in no way for the benefit of such estate, but as surety merely for her husband. This question I have examined with the attention its importance deserves. § 321. The contract of a married woman being void at law, [160] § 323] SEPARATE ESTATE. [CHAP. XIII. the difficulty of subjecting her estate in equity to the payment of a note or bond given by her was felt by the courts to be very great. The difficulty was, however, overcome, and the rule must now be regarded as settled, that the written engagements of a married woman, entered into on her own adcount, to pay money, are to be satisfied out of her separate estate.' § 822. "Where the obligation is not on her own account, and in no sense for the benefit of her estate, the question whether a charge is thereby created must depend, I think, on the principle which lies at the foundation of the rule just stated. If the note or bond of a feme covert is to be taken as a particular appoint- ment of her estate to pay it, in the nature of an execution of a power of disposition, then I see no reason for a distinction where she is a surety merely. This was the theory of some of the cases on the subject, but this was obviously a mere fiction. A simple engagement to pay money is not in its nature an engage- ment to pay out of any particular fund, and cannot, except by a fiction, be regarded as an appointment or disposition of the fund. § 328. There is also this further difficulty, which was sug- gested by Lord Cottenham, in Owens v. Dickinson (supra), that if a married woman has contracted several debts in writing, and the instruments are to be regarded as appointments of her estate, the creditors would take priority according to the date of the several instruments. The contrary of this is plainly true. The creditors of a, feme covert have no priority over each other, unless it be acquired by superior diligence in proceeding to obtain satisfaction, or by some specific lien expressly created for that purpose. Again, as the law now is with us, since the statute of 1849, suppose before or after marriage she takes real or per- sonal estate by inheritance or distribution; in such case, the fiction of appointment under a power, when she disposes of such an estate, is too absurd to be for a moment entertained. ' North American Coal Company v. Dyett, 7 Paige, 9 ; Healey v. Thomas, 15 Vesey, 596 ; BuUpin v. Clarke, 17 Ves. 365 ; Stuart v. Kirkwall, 3 Madd, 387 ; Owens v. Dickinson, Craig & Phil. 48 ; 2 Story's Eq. § 1400. 11 [161] CHAP. XIII.J SEPARATE ESTATE, [§ 326 § 324. The earliest cases on this subject proceeded on a more intelligible principle, which did not require the aid of a fiction. Thus in Norton v. Turville," payment of a married woman's bond, given for money borrowed by her, was decreed out of her sepa- rate estate, on the ground that it -wTas to be deemed as held in trust for the payment of her debts. . This was regarded as one of the separate nses for which the trust was created. So in Peacock v. Monk,' Lord Hardwicke said: "If a wife, having an estate to her separate use, borrowed money and gave a bond for its payment, this would give a foundation to demand the money out of her separate estate." So also in Hulmes v. Tru- man,' Lord Thurlow held that the trustees of a married woman's estate were obliged in equity to the satisfaction of her general engagements. § 325. These early cases did not suggest the fiction of an appointment, but proceeded on the notion of a trust, and the plain equity of requiring a married woman's engagements en- tered into for her own benefit, to be satisfied out of the trust estate. Afterwards that fiction was resorted to, which, besides the objection to it as a mere assumption, having not the slightest foundation in fact, worked the actual injustice of rejecting the claims of creditors whose demands were based upon a mere general assumpsit for money had and received, where there was no written engagement to pay. In such cases the fiction of appointment was too grave to be received, and, therefore, as there was no appointment, there could be no charge, and so it was held.'' § 326. But the still later cases have, in terms or effect, repu- diated the fiction of an appointment, and with it the distinction between the written engagement of &feme covert and her general liability for money advanced, services rendered, or goods sold. In Owens v. Dickerson (svpra), Lord Cottenham restored the liability of separate estates to the basis on which it had been rested in the early cases above cited. His observations in that case demonstrate with great clearness that a simple note or ■ a P. Wras. 145. ' 2 Ves., Sr., 193. > 1 Brown, C. C. 20. * Uolton V. Williams, 2 Vesey, Jr., 138 ; Jones v. Harris, 9 id. 486. [1(52] § 328] SEPABATE ESTATE. [CHAP. XIII. bond cannot, in its very nature, be an appointment or cbarge upon tbe estate. Speaking of such instruments, he said: 'It has sometimes been treated as a disposing of the particular estate ; but the contract is silent as to the separate estate, for a promissory note is merely a contract to pay, without saying out of what it is to be paid, or by what means it is to be paid, and it is not correct according to legal principles to say that a contract to pay is to be construed into a contract to pay out of a particular property, so as to constitute a lien on that property.' 'Equity,' he adds, 'lays hold of the separate pro- perty, but not by virtue of anything expressed in the contract, and it is not very consistent with correct principles to add to the contract that which the party had not thought proper to introduce into it." § 327. The principle, in short, which now governs cases of this kind, is, that a wife's separate estate is liable to pay her debts during coverture, in whatever form they are incurred, not because her contracts have any validity at law, nor by way of appointment or charge, but because equity decrees it to be just that they should be paid out of such estate. Of course it is not to bedenied that a wife may appoint or specifically ap- propriate her separate estate to the payment of her own or her husband's debts. She may, if she pleases, even give it to her husband. What I am denying is, that contracting the debt is of itself an appointment or charge. § 328. Can, then, the principle on which the liability depends be extended to cases of mere suretyship for the husband or a stranger? It seems to me it cannot. The obligation of a surety in all other cases is held to be stricii juris, and, if his contract is void at law, there is no liability in equity founded on the con- sideration between the principal parties. Thus, in Ludlow v. Simond,' the bill was filed to sustain a contract against a surety who had been technically discharged at law. The subject was ' Murray o. Bailee, 3 Myl. & K. 209 ; Bell on the Law of Property, 518, 519 ; Macqneeu on Hnsband and Wife, 301—303. ' 2 Cain's Cases in "Error, 1 ; and 3. P, Emmons ». Overton, 18 B. Monroe, 649. [163] CHAP. XIII.] SEPARATE ESTATE. [§ 330 very fully examined in the Court of Errors by Chief Justice Kent, and by Justices Spencer and Thompson, and the suit was determined against the plaintiff on the ground that there was no equitable liability upon a surety where he could not be held at law. Why should a married woman be made an exception to this rule? We are to remember that her contract is abso- lutely void at law; and, when she is a mere surety^ there is no equity springing out of the consideration. § 329. And if the promise is on her own account, if she or her separate estate receive a benefit, equity will lay hold of those circumstances and compel her property to respond to the engagement. Where these grounds of liability do not exist, there is no principle on which her estate can be made answer- able. If we hold that the signing of a note as surety brings a charge upon her estate, we must go further, and hold also that her guaranty, her indorsement, her accommodation acceptance, her bail bond, indeed, every conceivable instrument which she may be persuaded to sign for her husband or others, although ab- solutely void at law, are so far binding in equity as to charge her property with its payment. This would be a doctrine sustained by no analogies and opposed to the soundest policy. It would go far to withdraw those checks which are intended to preserve a wife from marital influences, which may be, and often are unduly exercised, and yet baffle all detection. The doctrine that equity regards her as a feme.sole in respect to her separate estate, only admits that she may dispose of such estate with or without the consent of her husband, and without the solemnities which the law in other cases requires. But her mere promise to pay money, as we have seen, is not of itself such a disposi- tion. Courts of equity proceeding in rem., will take hold of her estate and appropriate it to the payment of her debts. But when her obligation is one of suretyship, merely, she owes' no debt at law or in equity. If not at law, which is very clear, then quite as clearly not in equity. § 330. It is true there are one or two English cases in which the trustees of a wife's separate estate were decreed to apply the personal property or the rents and profits of lands to the pay- [164] § 331] SEPARATE ESTATE. [CHAP. XIII. ment of her obligation as surety.' But these cases were decided at a period -when the doubt was whether a mere obligation of any kind to pay money could bring a charge upon her estate without any reference to the distinction between debts con- tracted for the benefit of herself or of the estate, and engage- ments entered into as a surety. That distinction was not considered. On the authority of those cases, dicta to the same effect may be found in one or two elementary treatises.' We have also been referred to the case in this court of Vander- heyden v. Mallory.' But the point determined was, that the debts of a wife contracted before marriage were not a charge upon the separate estate held by her during the coverture. The remarks of Ch. J. Jewett upon the question now involved was obiter, merely, and it appears to have been founded entirely on the observation cited from Judge Story. The case did not call for an examination of any such question. No decision in this State has ever gone beyond the doctrine I have just stated.* In Curtis V. Engel,* it was held by Vice-Chancellor Sandford that, in order to create a charge, it must be shown either that the debt was contracted for the benefit of the wife's separate estate, or for her benefit upon the credit of such estate. I am satisfied that the judgment should be reversed and a new trial granted." § 831. In the same case Judge Harris delivered the following opinion : " The effect of marriage at the common law is to in- vest the property of the wife in the husband, personal estate absolutely, and real estate during the continuance of the mar- riage. But in equity, and now by statute, the wife is capable of holding both real and personal property to her own separate and exclusive use. Incidental to this capacity is the power of disposition; so that now, except in cases where she is restricted by the terms of the instrument under which she acquires title, the wife has the same dominion and power of disposition in respect to her separate property as if she were unmarried. > Stanford v. Marshall, 2 Atk. 69 ; Healty v. Thomas, 16 Ves. 596. 2 2 Story's Eq. § 1400. ' 1 Comst. 452. * 2 Sand. Ch. Rep. 287 ; North American Coal Co. p. Dyett, 7 Paige, 9, S. C. ; 20 Wend. 670. [165] CHAP. SIIL] SBPAEATE ESTATE. [§ 333 § 382. But, while in respect to her separate property, the disability of coverture no longer exists, it still remains in re- spect to all her executory contracts. No personal remedy can be had against her in equity, any more than at law, upon such contracts. The contracts are only valid so far as they operate upon her separate estate. ' Although she is still incapable of charging herself at law,' says Cowen, J., in Gardner v. Gardner ,i ' and equally incapable in equity of charging herself personally with debts, yet the better opinion is, that separate debts con- tracted by her, expressly on her own account, shall, in all cases, be considered an appointment or appropriation for the benefit of the creditor, as to so much of her separate estate as is suffi- cient to pay the debt, if she be not disabled to charge it by the terms of the donation.' § 338. In equity there is no difference between the separate estate of a wife created by operation of the statutes of 1848 and 1849, relating to married women, and a similar estate created by deed or any other instrument. If it be conceded that the effect of these statutes is to vest in her a legal title, whereas before, when her interest was acquired by means of a settlement or deed, she had only an equitable estate ; still, so long as her contracts are affected by the disability of coverture, the debts of the wife can only be enforced against her separate estate, however acquired, by a specific charge of such debts upon the separate estate. This can only be done in a court of equity. The principle upon which this jurisdiction is exercised is well stated by Lord Cottenham in Owens v. Dickerson.^ It was there held that the engagements of a married woman ought to be enforced against her separate estate, not as the execution of a power, but as the exercise of a right of property to which is necessarily incident the power of contracting debts to be paid out of it. 'Inasmuch,' it is said, 'as her creditors have not the means at law of compelling payment of those debts, a court of equity takes upon itself to give effect to them, not as personal liabilities, but by laying hold of her property, as the only means by which they can be satisfied.' ' 22 Wend. 526. » Craig & Phil. 48. [166] § 336] SEPARATE ESTATE. [CHAP. Xllf. § 334. Though it is often said that in equity the wife is re- garded as a f&me sole in regard to her separate property, yet it has never been supposed that even in equity she incurs a per- sonal obligation by her engagements. There can be no pro- ceeding against her in personam. She is regarded as a feme sole, only so far as to enable her to bind by her contract her own separate property. Upon this subject I concur in the views expressed by the judges of the Supreme Court, who delivered the prevailing opinions in Colvin v. Currier.^ § 335. It remains to inquire whether, in this case, the wife has made such a contract as, by a proceeding in. rem. in a court of equity, should be enforced against her separate property. At the first, it was supposed that the wife could only bind her separate estate by some act creating a direct charge upon it. But in Hulme v. Tenant,^ decided in 1778, the question was presented how far the general engagement of the wife should be executed out of her separate property. In that case the suit was, upon a bond, executed by the husband and wife for bor- rowed money. The principal part of the money had been borrowed by the wife herself. Lord Thurlow declared the rule to be, that the general engagement of the wife shall operate upon her personal property, and the rents and profits of her real estate; and that her trustees should be required to apply the personal estate, and the rents and profits as they might arise, to the satisfaction of such engagement. The doctrine of that case has been much discussed in the English courts of equity, but is now deemed to be settled by the decision of Lord Brougham in Murray v. Barlee.^ § 336. In that case a married woman living apart from her husband, and having a separate estate, had employed a solicitor In various transactions, and had promised by letter to pay him; it was held that the separate property of the wife was charge- able with the payment of the solicitor's bill. It is worthy of remark, with reference to this case, that the services for which the plaintiff claimed to be paid out of the separate estate of the ' 22 Barb. 371. » 3 Myl. & K. 209. 2 1 Brown, C. C. 20. [167] CHAP, XIII.] SEPARATE ESTATE. [§ 338 wife, were rendered to a married woman living apart from her husband, and not only upon the credit, but, doubtless, for the benefit of such estate. The single question before the court was, whether the pecuniary contract of a married woman, in which there was no reference to her separate estate, should be satisfied out of such estate. It was regarded as a question of intent, and the court held, that inasmuch as the wife, when she made the engagement, could not be supposed to have intended to do an idle thing, she must be presumed to have intended to satisfy her engagement out of her separate property. The charge was established, because the circumstances of the case were such as to justify the inference that such was the intention of the wife, § 387. Thus it appears that there are two modes by which the separate estate of a married woman may be charged with the payment of her pecuniary engagement. The one, where she has in terms, and by an appropriate instrument, made such charge ; and the other, where, though she has not, in making the contract, referred to her separate estate, or expressed her intention to satisfy it out of such estate, yet the circumstances of the case are such as to leave no reasonable doubt that such was her intention. "What shall be deemed sufficient evidence to demonstrate such intention has been regarded as a question of some difi&culty. ' The fact,' says Story, ' that the debt has been contracted during the coverture, either as a principal or a surety, for herself or for her husband, or jointly with him, seems ordinarily to be held prima facie evidence to charge her separate estate, without any proof of a positive agreement or intention so to do." The ordinary caution — perhaps, I may say, hesita- tion — with which this proposition is stated by the learned author, deserves to be noticed in this discussion. The writer himself adds that the proposition furnishes 'a strong case of constructive implication, founded more upon a desire to do jus- tice than upon any satisfactory reasoning.' § 838. It should be conceded, I think, that in England the decisions have gone the length of holding, that where the wife, living with her husband, gives her own note or other obligation ' 2 story's Eq, Jur. § 1400. [168] § 340] SEPARATE ESTATE. [OHAP. XIII. to pay ter own debts, or unites witli her husband in giving such a note or obligation to pay his debt, it shall, without any other evidence of her intention, be charged upon her separate estate. But in New York the rule has never been carried so far. The primary object in creating a separate estate, and allow- ing the wife to hold and dispose of her separate property, inde- pendently of her husband, has been kept in view. § 339. 'The wife,' says the Chancellor in Gardner v. Gardner,* ' may have a separate estate of her own, which estate is charge- able in equity for any debt she may contract on the credit of, or for the use of such estate.' In the same case, upon appeal, Oowen, J., says: 'The better opinion is, that separate debts con- tracted by the wife, expressly on her own account, shall in all cases be considered an appointment or appropriation for the benefit of the creditor as to so much of her separate estate as is sufficient to pay the debt."* The same rule is stated with still greater dis- tinctness by the late Vice-Chancellor Sandford in the case of Curtis V. Engel.' 'To sustain their suit,' he says, 'the plaintiffs must show that the debt was contracted either for the benefit of the separate estate of the wife, or for her own benefit upon the credit of the separate estate! He adds: 'That whatever may have been the expressions of judges on the subject, this is the utmost extent to which the doctrine has been carried by the decisions in this State.'* § 340. In the latter case the wife had united with her hus- band in signing a bond for the payment of money. The action was brought for the purpose of charging the payment of the bond upon the separate estate of the wife. After a pretty full examination of the authorities upon the subject, the conclusion of Mr. Justice Hoffman is, that where a note or bond is signed by the husband and wife, in the absence of any evidence to show that it was given for the benefit of the wife, the legal in- ' 7 Paige, 112. ^ Gardner v. Gardner, 22 Wend. 528. » 2 Sand. Ch. K. 287. ♦ Dickerman v. Abrahams, 21 Barb. 551 ; Colvin v. Currier, before cited ; Goodall V. McAdam and Wife, 14 How. Pr. R. 385. [169] CHAP, xm.] SEPARATE ESTATE. [§ 343 ference is, that it was for the debt of the husband, and the sepa- rate estate of the wife will not be charged. So also in the North Americaii Coal Co. v. Dyett,' the Chancellor says: ^ The feme covert is, as to her -separate estate, considered as a feme sole, and may in person, or by her legally authorized agent, bind such separate estate with the payment of debts contracted for the beneiit of that estate, or for her own benefit upon its credit.'^ § 841. The rule thus uniformly asserted by the courts of this State is, in my judgment, more equitable and more in harmony with the policy of the law which allows a married woman to hold and dispose of her property independently of her husband, than the rule which has been adopted by the Supreme Court in this case. It is simply a rule of evidence. All agree that when the wife has expressly charged the payment of a debt upon her separate estate, whether it be her own debt or the debt of an- other, such charge is valid and will be enforced. But to hold that the mere fact of her engaging to pay money, without regard to the question whether such engagement was for her own bene- fit or that of her estate, is sufficient evidence of an intention to charge such payment upon her separate estate, would, in many instances, defeat the very object of allowing her to hold a sepa- rate estate. § 842. Indeed there is much to recommend the practice which has been adopted in some of the States, of looking into the cir- cumstances of the case sufBciently to see that the wife will suffer no injustice, before allowing a charge upon her separate estate to be enforced. § 343. In this case it was held that the court would inquire into the propriety of an express charge, and not allow the wife to charge her estate by her own mere act and will, without evidence that it was necessary, or at least proper ; and in Eeid V. Lamar,^ it was held that where property was settled upon a ' 1 Paige, 9. ' Same case upon appeal, 20 Wend. 570. » Maywood v. Johnson, 1 Hill's Ch. Rep. 228. * 1 Strofhart's Eq. 27. [1701 § 345] SEP ABATE ESTATE. [OHAP. XIII. wife, to be at her 'full and free disposal,' it was not to be charged with a note given by her with her husband. § 344. The object of settlements, and the other arrangements which were resorted to for the purpose of securing to the wife a separate estate, was 'to protect her weakness against the husband's power, and to provide a maintenance against his dissipation.' So too the legislature, when it declared that the property of the wife ' shall not be at the disposal of her hus- band, nor be liable for his debts, and continue her sole and separate property as if she were a single female,' intended, so far as it could be done by legislation, to protect her against the improvidence and misfortunes of her husband. At the common law the power of the husband over her estate, as well as her person, was almost unlimited. By this statute, and before by settlements and other contrivances which were sanctioned by a court of equity, the wife is enabled to enjoy her own property independently of her husband. § 345. This right of enjoyment includes that of disposition. Having this power, she of course has the power to charge the estate with the payment of her debts. "When she does this of her own free will, uninfluenced by any unfair practices, how- ever injudicious or improvident the act, the charge must be enforced. But when her intention to create such a charge has not been expressed, and there is no direct evidence of such intention, the mere fact that the creditor is able to present a note or other obligation bearing her signature as well as that of her husband, ought not — in view of the policy of the law under which she holds her property, and her position as a wife, liable to be controlled by influences it may be impossible to detect — to be regarded as sufiBcient evidence to justify the in- ference that it was her voluntary intention to charge the pay- ment of the debt upon her own separate property. I think that in such a case the equitable rule is that which has been inva- riably in this State ; which is, that where the intention to create the charge has not been expressed, and can only be implied from the fact that she has become indebted, either individually or jointly with her husband, it must appear that the debt was contracted for the benefit of her separate estate, or for her own [171] CHAP. XIII.] SEPARATE ESTATE. [§ 348 benefit, upon the credit of her estate, before the estate can be charged with its payment. § 346. In the case before us there is an entire absence of any such proof. Indeed, the contrary is proved. Instead of being the debt of the wife, it is proved to be the debt of the husband. There is no evidence that the wife consented to have the pay- ment of the note charged upon her separate estate, except such as is derivable from the fact that her signature is found upon the note. Under what circumstances, or upon what representa- tions, or by what influences she was induced to sign the note, does not appear. I am of opinion that such a state of facts is not suificient evidence of an intention on the part of the wife that the payment of the note should be charged upon her sepa- rate estate. The judgment of the Supreme Court should, therefore, be reversed, and a new trial granted, with costs to abide the event. Judgment reversed, and new trial ordered." § 347. In the case of Jarman, &c., v. Wilkerson,' it was held that the modern doctrine of the British Chancery was that as an incident to the separate enjoyment as recognized in equity, the feme has the power of charging her separate estate;' but that without a charge on her part, either expressed or implied, it cannot be reached. In Hulme v. Tenant,' it was held that when a wife joins with her husband in a security it is an implied execu- tion of her power to charge her separate estate. And in Stewart and Wife v. Kirkerwell, ka.* the Vice-Chancellor said: "This court will consider a security executed by her as an appoint- ment pro tanto" &c., and the separate estate was subjected to the payment of a bill of exchange drawn by the feme covert. § 348. Assuming this to be the true equitable doctrine, it follows that the execution of a promissory note by Mrs. Jarman, > 7 B. Monroe, Ky. Rep. 293. ' Haddock's Chy. Rep. 934 ; lb. 201. » 1 Bro. C. C. 20. * 3 Maddook's Chy. Rep. 887, 388. [172] § 349] SEPAEATE ESTATE. [CHAP. XIII. as the surety of her son, was impliedly so far an execution of her power over her separate estate in the slaves held by her trustee for her sole and separate use, and should be considered as an appointment ]pro tanto. For it cannot be admitted that her declaration, " that she would not pay the note, and that her estate should not go to pay it," made to her son at the time of signing it, can have the effect of counteracting the plain tenor of the note, or the equitable implication arising /roTn it. We doubt, whether a declaration so inconsistent with the act itself should have such an effect, even if made in the presence of the payee, but being made in his absence, and not communicated to him, it is clearly of no avail. The son, though he receive the note from his creditor for the purpose of getting his mother's signa- ture, addressed her on his own account, and neither presented himself, nor was regarded by her, as the agent of the creditor. Nor was that his real character. It would be grossly inequit- able to the creditor to deprive him of his security on the ground of this secret conversation between the mother and her son.^ § 349. But if the doctrine of the cases above referred to be not received as authoritative to the full extent, still we are inclined to the opinion, that as a judgment has been rendered on the note against both parties, and an execution has been returned "no property found," the case comes under our statutes author- izing the subjection of equitable interests to the satisfaction of judgments upon such a return being made on the execution. The coverture of Mrs. Jarman not being relied on at law, either to prevent or reverse the judgments against her,' it cannot be regarded in this proceeding as being void. And no reason being shown for not having relied npon the coverture at law, and no equity being in fact made oiit against the judgment, we think the Court of Equity has the same power of enforcing it against the equitable interest of either defendant as if the cover- ture did not exist.^ ' Ibid., 7 Ben. Monroe, 293. 2 As to this being done, see Breckenridge v, Coleman, 7 B. Monroe, 332-4 ; also the present Ky. Civil Code, sec. 579, where a new trial is given to a feme covert, upon judgments against her. " Ibid., 7 Ben. Monroe, 293. [1781 CHAP. XIII.j SEPAEATB ESTATE. [§ 353 § 350. So where a feme covert, living separate from her hus- band, executed her note to counsel for services to defend her son, who was indicted for murder, although in the strict legal sense it was not for necessaries, yet it was for services and labor bestowed at her instance for the benefit of her son, and to save him from the hands of the executioner, or at least from incar- ceration for years in the penitentiary, it was held equally as meritorious a claim.' § 351. As a general rule a married woman cannot, except in special cases, contract as feme sole, nor as such sue or be sued, and cannot at law hind herself hy any contract in regard to her separate property. In conformity with this doctrine of disa- bility, courts of equity hold that her general personal engage- ments will not affect her separate property. If she does no act indicating an intention specifically to charge her separate estate with the payment of her debts, a court of equity will not ordi- narily entertain jurisdiction for an application of such estate, in the hands of her trustees, to such purposes during her life.^ § 352. In equity, although she be permitted to possess and enjoy separate estate as feme sole, yet those courts holding, in analogy to the legal doctrines, that a wife's general engagements are not binding, refuse to entertain jurisdiction at the instance of her general creditors, to subject her separate property in the hands of her trustees to their demands ; but she may alien or encumber her separate property when she shows an intentim to dispose of it.^ § 353. But if a married woman be known to be living upon separate property, and apart from her husband, it is generally inferred that her dealings with tradesmen and others who trust her, take place on the credit of this property.* The foregoing principles are not in conflict. The distinction or difference in principles is this: "When property is limited to the wife's ' Coleman o. Woolley, 10 Ben. Monroe, Ky. Rep. 320. ' Roper on Hnsband and Wife, 236, &o., 2 Vesey, Jr., 138. » 2 Roper, 240; unless restricted by statute, as in Ky., sees. 361-2-3-4. * 2 Roper (in note), 244, and authorities there referred to. [174] § 356J SEPARATE ESTATE. [CHAP. XIII. separate use, and she cohabits -with her husband, the creditor has the husband's security for payment of the debt contracted by the wife for necessaries ; it is but just, therefore, to require some evidence of an agreement between her and her creditor, that her separate estate should be applied to the satisfaction of his demand.^ § 354. But when husband and wife are living separate, and, as may be inferred, she deals and is trusted on the credit of that estate, her separate creditors may maintain a suit in equity to subject it.'' And certainly, whenever the wife's intention ap. pears or may be inferred to charge her separate mainteuance with a debt for necessaries, it will entitle the creditor to have his debt out of the fund provided for such maintenance.' § 355. In Bell and Terry v. Kellar,* the court held that it must be assumed as the settled doctrine of a court of equity, established by many decisions of other courts, and recognized by this court, that a feme covert, having a separate estate, may charge it by the execution of notes or other evidences of debt or responsibility, on the ground that as she could not charge herself personally, the execution of such writing must be re- garded as evincing an intention to charge her estate. "And as neither of the deeds creating the separate estate in this case contains a prohibition against her so charging it, we are of opinion that the writings relied on by these complainants do constitute such charge, by implication, upon her interest in the estate conveyed to her separate use " § 356. The indorsement of a bill of exchange is not a general engagement, such as is referred to under that designation in the case of Coleman v. Woolley's Executor,' cited in argument, and which it is there said would not in general suffice to create a charge upon her separate estate if she and her husband be living together. It is a specific engagement which must be ' 2 Roper, 306, and Coleman v. Woolley, 10 B. Monroe, 320. « Ibid. » 2 Foper, 306-9 ; lb., 10 B. Monroe, 320. ' 13 Ben. Monroe, Ky. Rap. 384. » 10 B. Monroe, 321. [175] CHAP. XIII.] SEPARATE ESTATE. [§ 359 referred to lier estate, or it is not only nugatory, but deceptive. If she liave no separate estate, then she cannot bind herself personally. "Whoever trusts to her indorsement, must abide the consequences of his folly. But if she has a separate estate, and does any specific act which directly involves and pledges her credit, it must be referred to her separate estate, which she can bind, and on which alone her credit rests. And such an act must be considered as implying a charge upon her estate.' § 357. In Jarman, &c. v. Wilkerson,'' the court said the doc- trine of the British Chancery on this subject is stated, and a case is cited,' in which a security executed by the wife was held to be an appointment '^ro tanto, and her separate estate was subjected to the payment of a bill of exchange drawn by her. And her indorsement of a bill must be equally effectual. It follows that in our opinion the separate estate of Mrs. Kel- lar was made liable by her indorsement for the sum claimed. And as this liability could not have been enforced in an action at law, even after the death of her husband, but could only be enforced in equity, the court should have granted relief as to this part of the demand.^ § 358. In Lillard v. Turner,' the court held that where the deed creates a separate estate in the wife, it confers upon her a power to deal with it fully as a, feme sole, and to render it liable to the payment of any debt by her separate act and intent ; for she has a right to incur liabilities, and to charge her separate estate with them, as if she 'had been an unmarried woman, and a court of equity will enforce the charge, and subject the estate to the payment of her debts. The execution of notes by her is deemed a sufficient indication of an intention on her part to charge her separate estate for the payment of the debts for which her notes were executed. § 359. In Burch and Wife v. Breckenridge,* where the trustee ' 3 Mad. Ch. Eep. 287-8 ; 13 Ben. Monroe, 384. ^ 7 B. Monroe, Ky. Rep. 293. » 16 B. Monroe, Ky. Rep. 376. ' 3 Mad. Ch. Rep. 287-8. » 16 B. Monroe, 488. * 7 Ben. Monroe, 293. [17«] § 360] SEPARATE ESTATE. [CHAP. XIII. for the wife, holding the title to her separate estate, permitted her improvidently, in less than two years, to incur a debt of some four thousand dollars, when the annual profits of her estate did not probably exceed some five or six hundred ; and instead of checking this improvidence on her part, rather encouraged it, by advancing her money, paying off her bills, and taking receipts from her for the whole of it. As she may have in- ferred from these acts of his that the profits of her estate were sufficient to meet all these disbursements, and he never inti- mated to her that a sale of the estate would be necessary to pay them, and there was no express agreement by the wife to charge her separate estate. Meld: that the mere fact that they were contracted by her did not render her separate estate liable for their payment; for he clearly has no claim against any part of her estate, except the profits. It cannot be presumed, by executing the receipts to him ^r the money, that she intended by such a general liability to charge any part of her estate, but merely the profits thereof so far as they came into his hands as money. Her own contract is indispensably necessary for this purpose. So far as the separate property consists of land, it cannot be made liable by a verbal contract. The wife cannot alien or dispose of her estate, except by a written agreement, and as a charge upon it for the payment of debts operates as a dis- position of it pro ianto, it can only be created by a contract in writing.^ § 360. But with respect to her other separate estate, consist- ing of personalty and slaves, where she has verbally agreed that ' part of it shall be appropriated to the payment of a debt which she is about to create, there seems to be no good reason why this agreement should not be regarded as constituting a charge upon it. Where, however, a verbal agreement is made, without any reference to her separate estate, then it will not be bound, unless the circumstances are sufficient to prove that in fact the under- standing between her and the person with whom she has con- tracted was that it should be liable. But where there is no express agreement, and one arises only by implication, a court of equity will not allow such implied agreement to extend to Ibid., 16 Ben. Monroe, 376, and Clark v. Miller, 2 Atk. 379. 12 [177] CHAP. XIII.J SEPABATE ESTATE. [§ 362 any, except that part of the estate which it may be inferred from the circumstances the wife intended to charge with the payment of the debt, and, therefore, the court refused to subject her estate. § 361. But in Daniel v. Eobinson,' the court there said that the forty-seventh chapter of the Kentucky Kevised Statutes, title "Husband and Wife," page 395, section 17, it is believed, has changed the law on this subject. That section is as follows: "If real or personal estate be hereafter conveyed or devised for the separate use of a married woman, or for that of an unmarried woman, to the exclusion of any husband she may hereafter have, she shall not alienate such estate with or without the consent of any husband she may have ; but she may do so when it is a gift, by the consent of the donor or his personal representative. Such estates heretofore created shall not he sold or encumhered but by order of a court of equity, and only for the purpose of exchange and reinvestment for the same use as that of the original conveyance or devise, and the court shall see that the exchange is properly made."^ § 862. A radical change in the previous law (as thus ruled) has been efi'ected by this new statutory provision as to all of her separate estate? The change was made, to protect this de- scription of property, generally conveyed to a woman to secure her against want, from the operation of those influences (undue, fraudulent, or otherwise) which might be brought to bear upon Her to induce her to sell, dispose of, or convey it. And although cases might occur where such a power of alienation might be exercised advantageously; yet, in its general operation, the exercise of such a power has frequently resulted in the total waste and dissipation of the estate. It, therefore, seenns to have been the intention of the legislature of Kentucky thereby to secure her in the enjoyment of her separate estate during her life or coverture, by thus depriving her of the power to alienate ' 18 Ben. Monroe, Ky. Rep. ; S. P. Pell v. Cole, 2 J. P. Metcalfe. " Amended session acts 1855-6, page 58 ; see also Williamson v. William- son, 18 B. Monroe, Ky. Eep. 386. 3 See Stuart v. Wilder, 17 B. Monroe, 59 ; Daniel v. Robinson, 18 B. Mon- roe, Ky. Reports, 306. [178] § 363] SEPAKATE ESTATE. [CHAP. XIII. it.' But if it be a gift to her (made since 1st July, 1S52) she may convey it with the consent of the donor or his representa- tives.' It is stated that this provision was enacted not only to protect the rights of married women, by securing their estates against their own improvidence, as well as all improper influ- ences which might be attempted to be exercised over them, but also the more effectually to secure the attainment of the object of the donor in their creation. Instead of depriving married women of any of their rights in their separate estate, it tends to secure them in the possession and enjoyment of them. The power to violate the instrument creating her estate, and to make a disposition of the property embraced by it inconsistent with and calculated to defeat the evident intention of the donor in making her the object of his bounty, cannot be regarded as such a vested right in a married woman as to place it heyand legislative control or regulation. Indeed, the existence of sucji a power was only recognized in a court of equity, and the propriety of permitting its exercise, unless it was expressly conferred by the instrument which created the estate, has been frequently questioned by the most enlightened chancellors.^ § 363. Married women can still sell and convey their sepa- rate estate (where it was created before the 1st July, 1852, even), but it must be done under the superintendence of a court of equity, and the proceeds must be reinvested for the same use as that contained in the conveyance or devise by which the estate was originally created. The mode in which the sale and con- veyance are to be made is varied; but the change is entirely consistent with the nature of the estate, and its operation is evidently advantageous to the owners of such property, by securing them in the continued enjoyment of it. As the proceeds, if a sale be made^ are required to be reinvested for the separate use of the wife, she is tbereby guarded against that influence to which her condition naturally subjects her, and which it is ' 17 B. Monroe, 59 ; 18 lb., 36, supra. ' See 20th and 21st sections of the Revised Statutes of Kentucky, in the case of Williamson v. Williamson, 18 Ben. Monroe, 386. ' See Kent's opinion in Jacques v. Methodist Church, 3 Johnson's Chy. Eep. 113, and 17 Johnson, 578 ; and Whitaker v. Blair, 3 J. J. Marshall, 236 ; Bow"- man v. Shipp, 5 B. Monroe, 165-6. [179] CHAP. XIII.] SEPARATE ESTATE. [§ 364 almost impossible for her to resist, by the withdrawal of all temptation for its exercise. There can be no doubt of the power of the legislature to enact such a law, and consequently the deeds made by Mrs. Williamson and her husband alien- ating her separate estate, having been executed since the Eevised Statutes took effect, are wholly invalid and inoperative. Since the change in the law, a married woman has no power to charge, encumher, or dispose of her separate estate for any purpose what- ever, in any other mode than in that expressly prescribed hy the statute} By an act of the Kentucky legislature, passed in 1856 (vol. i. Ses. Acts 1855-6, p. 58), it was enacted that these provisions of the Eevised Statutes should not apply to conveyances made hefore their passage, in which powers of sale and exchange were expressly given; but such powers might he executed according to the intention of the instrument, when executed. § 364. There can be no doubt, therefore, of the right of Mrs. Williamson to exercise the right conferred upon her by the 29th section, or any other part of the will, according to the inten- tion of the testator. The deed, however, which was made by her and her husband to two of her children, was not made in pursuance of, or in conformity with, the provisions of the will, and was consequently unauthorized and invalid. It purported to convey to each of the children the life estate of their mother in their part of a tract of land, and was made upon the assump- tion that she had a right to convey and dispose of her life estate as she deemed proper, without any regard to the provisions of the will. It was not made for the purpose of executing the power so conferred upon her by the 29th section of the will, nor did it operate to vest the children with such an interest in the property embraced by it, as they are entitled to under that section. Inasmuch, therefore, as their mother's deed conferred no right on the plaintiffs, and their interest in the remainder is contin- gent, they were not in a condition to maintain an action for partition of the land. And as the deed to George T. Williamson did not invest him with any title, and as he did not acquire any by the death of ' See Daniel v. Eobinson, 18 B. Monroe, 301, per Judge Simpson. [180] § 366] SEPAEATE ESTATE. [CHAP. XIII, his two children, they not having a vested interest in the land, he had no right to partition, and the judgment in his favor, as -well as that which was rendered for the plaintiffs, is erroneous.' § 365. In Hulme v. Tenant:* "At law," says Lord Brougham, "a, feme covert cannot in any way be sued, even for necessaries;" but in equity the case is wholly different. Her separate exist- ence, both as regards her liabilities and her rights, is here abun- dantly acknowledged ; not, indeed, that her person can be made liable, but her property may, and it may be reached through a suit instituted against herself and trustees. It may be added that the current of decision has generally run in favor of such recognition. The principle has been supposed to be carried further in Hulme v. Tenant,' than it had ever been before, because there a bond in which husband and wife joined, and ■which, indeed, so far as the obligation of the wife was concerned, was absolutely void at law, was allowed to charge the wife's estate vested in trustees to her separate use, though such estate could only be reached by implication ; and though, till then, the better opinion seemed to be that the wife could only bind her separate estate by a direct charge upon it. Lord Eldon repeatedly expressed his doubts as to this case, but it has been constantly acted upon by other judges, and never in decision been departed from by himself'' § 366. The rule laid down in Peacock v. Monk, that a feme covert, acting with respect to her separate property, is competent to act in all respects as a feme sole, is said by Lord Thurlow, in Hulme V. Tenant, to be the proper rule, and necessarily to sup- port the decisions on this subject. Thus it has been established^ that personal property settled upon a feme covej-t for her separate use, is to be enjoyed with all its incidents ; and that, as the jus disponendi is one of them, she may, although there is no express power of disposition given ' Williamson v. Williamson, 18 Ben. Monroe, 301. ' 1 Brown Cli. Cases, 16, S. C. ; 2 Diok. 560. Reported in 1 Hare & Wal- lace's Cases, 394-401, with their valuable notes, sees. 384-5, 6, 7, 8, 9, posterior. ' 1 Brown C. C. 16. * Murray v. Barlee, 3 My. & K. 220—222. * Fettiplace v. Gorges, 1 Ves., Jr., 46, S. C. ; 3 Bro. C. C. 8. [181 J CHAP. XIII.] SEPARATE ESTATE. [§ 367 to her, dispose of it either by acts inter vivos, or by will;' and the power of a married woman to dispose of personal property settled to her separate use extends to interest in reversion as well as those in possession.^ As to real estate, it has been held that when it was settled to the separate use of a feme covert she could not, without an express power of appointment, dispose of it by will or otherwise than by fine or recovery, so as to disin- herit or bind her heir;^ and it is conceived that she can only effect that object noiv by her deed d%dy acknowledged; but it is clear that a/eme covert has the same power over her life interest in real estates settled to her separate use as she would have, had she been a feme sole, and a contract to sell or mortgage her in- terest would be specifically enforced against her.'" In Major v. Lansley,' where a married woman, being entitled for life to her separate use to a reversionary interest in an annuity charged on real estate, joined with her husband in assigning it, Sir John Leach, M. E., although she had levied no fine, held her bound after the death of her husband by the assignment. § 367. Lord Thurlow, in Hulme v. Tenant, following the opinion that at one time prevailed, thought that trustees were essentially necessary to the existence of separate property. It has, however, been long since established, that if real or per- sonal estate be given to or settled upon a married woman for her separate use, without the interposition of trustees, still, in equity, the intention will be effectuated, and the wife's interest protected by the conversion of her husband into a trustee for her;° and where there are trustees, notwithstanding the decision of Lord Eosslyn in Whistler v. Newman,^ it is now clear that a married woman can bind her separate property without their assent, unless it is rendered necessary by the instrument giving ' Rich V. Cockell, 9 Ves. 369 ; Wagstaff v. Smith, 9 Ves. 520. = Sturgis V. Corp, 13 Ves. 190. " Churchill v. Dibdin, 2 Kenyon's Rep. part 2, 68-84 ; Sanders on Uses and Trusts, 380. * Stuart V. Wilder, 18 B. Monroe, Ky. Rep. 57, construed the Statute of Ken- tucky otherwise, but since overruled by Stead v. Nelson, 2 Bear. 245. 5 2 Russ. & My. 357. » Bennet u. Davis, 2 P. Wms. 316 ; Parlor v. Brooks, 9 Ves. 375. ' 4 Vesey, 129. [182] § 369] SEPARATE ESTATE. [CHAp. SIII. her the property. See Essex v. Atkins,' where the grant of an annuity by a married woman out of her personal property set- tled to her separate use was established, without the consent of , the trustees.^ The cases of Whistler v. Newman, and Mores v- Theish, may, therefore, be considered as overruled. A married woman may give to her husband the same interest in her sepa- rate property as she can to any other person.' In the cases before mentioned, the married woman has acted with respect to her separate property, and thus shown her inten- tion to deal with it. § 368. The point decided by Hulme v. Tenant goes much further than that, and shows that her separate property will be bound by general engagements which do not refer to, or make mention of it. It has accordingly been frequently held, that the separate estate of a. feme covert is rendered liable to pay her bond,* although it be given to her husband, or although she have joined in it with him, or with a stranger. The same was held as to a bill of exchange accepted by a feme covert in Stuart V. Lord Kirkwall,' and as to a promissory note given by a feme covert in Bullpin v. Clarke.* In Master v. Fuller,' the separate estate of a feme covert was held to be bound by an agreement entered into by her without the knowledge of her husband, to pay an additional rent for a house. § 369. And in Murray v. Barlee,^ it was held by Lord Brougham, overruling the decision of Sir L. Shadwell, V. C, that the estate of a feme covert was liable to the payment of the costs of solicitors whom she had by various letters instructed to act on her behalf, promising or giving them to understand that she would pay the costs and charges to become due to them for business done for her, although she did not refer to her ' 14 Ves. 542. 2 Grigsby V. Cox, 1 Ves. 518; Pybus v. Smith, 1 Ves;, Jr., 193; Parkes v. White, 11 Ves. 223. ' Essex V. Atkins, 14 Ves. 542; Grigsby v. Cox, 1 Ves. 518 ; Todd v. Wiok- liffe, 18 B. Monroe. * Lillia V. Airey, 1 Ves., Jr., 277 ; Norton v. Turvill, 2 P. "Wms. 144 ; Pea- cook V. Monk, 2 Ves. 193. ' 3 Madd. 387. ' 17 Ves. 365. ' 4 Bro. C. C. 19 ; 1 Ves., Jr., 513. s 3 My. & K. 210. [183] CHAP. XIII.] SEPAEATE ESTATE. [§ 370 separate property, or expressly promise to pay such costs and charges out of it. " The present," said his Lordship, "is by no means a case of mere general charge. If it were, I have no doubt that the claim would well lie, but these are written pro- mises. I hold a retainer in writing to imply a promise to pay whatever shall be reasonably and lawfully demanded by the solicitor or attorney acting under that retainer. So, if there be no formal retainer, but only a written acknowledgment or adop- tion of the professional conduct, or instructions in writing to proceed further, the party who gives such written instructions in effect promises to pay whatever may lawfully become due to one acting in obedience to them ; that is, to pay the costs which shall be taxed.'" In many cases it has been erroneously held, that the general engagements of a married woman, in writing, operate and are valid only as appointments made with reference to the separate estate, and not as mere contracts ; and, consequently, as a mere verbal contract cannot operate as an appointment, that the sepa- rate estate of a feme covert is not bound by her general engage- ments unless they are in writing.^ § 370. The more recent cases, however, upon the authority of the principal case decide that a feme covert can, as to her separate estate, enter into contracts in the same manner as a feme sole, and that her contracts or engagements upon this principle are equally binding whether they are written or verbal, and that it is, therefore, unnecessary as well as incorrect in principle to speak of her written engagements as operating merely as appointments. This doctrine has been most ably supported in Lord Brougham's elaborate judgment in Murray V. Barlee.^ "In all these cases," says his lordship, "I take the foundation of the doctrine to be this : the wife has a separate estate subject to her own control, and exempt from all other interference or authority. If she cannot affect it, no one can; ' Clerk V. Miller, 2 Atk. 379 ; Dowling v. Maguire, Eept. to Plunkett, 19 ; Bolton V. Williams, 2 Ves. Jr., 142 ; Greatly v. Noble, 3 Madd. 94. ' Stuart V. Kirkwall, 3 Madd. 389 ; Aguilar v. Aguilar, 5 Madd. 418 ; Chester X). Piatt, 1 V. & B. 334 ; Murray v. Barlee, 4 Sim. 82, per Sir L. Shadwell, Y. C. 3 3 My. & K. 223. [184] I 372] SEPABATE ESTATE. [CHAP. XIII, and the very object of the settlement which vests it in her ex- clusively, is to enable her to deal with it as if she were dis- covert. The power to effect it being unquestionable, the only doubt that can arise is, whether or not she has validly encum- bered it. At first the court seems to have supposed that nothing could touch it but some real charge, as a mortgage, or an in- strument amounting to an execution of a power, where that view was supported by the nature of the settlement." § 371. But afterwards her intention was more regarded, and the court only required to be satisfied that she intended to deal with her separate property. When she appeared to have done so, the court held her to have charged it, and made the trustee answer the demand thus created against it. A good deal of the nicety that attends the doctrine of powers thus came to be im- ported into this consideration of the subject. If the wife did an act directly charging the separate estate, no doubt could exist ; just as an instrument, expressing it to be in execution of a power, was always, of course, considered as made in execution of it. But so, if by any reference to the estate, it could be gathered that such was her intent, the same conclusion followed. § 372. Thus, if she only executed a bond, or made a note, or accepted a bill, because these acts would have been nugatory if done by a feme covert, without any reference to her separate estate, it was held, in the case I have above cited, that she must be intended to have designed a charge on that estate, since in no other way could the instrument thus made by her have any validity or operation; in the same manner as an instrument which can mean nothing if it means not to execute a power, has been held to be made in execution of that power, though no direct reference is made to the power. Such is the principle. But doubts have been, in one or two instances, expressed as to the effect of any dealing whereby a general engagement only is raised; that is, where she becomes indebted without executing any instrument at all. This point was discussed in Greatly v. Noble;' and Sir John Leach appears, in the subsequent case of Stuart V. Kirkwall,^ to have been of opinion that the wife's sepa- ' 3 Madd. 79. ^ 3 Madd. 387 ; S. C. cited ante, see. 347, 357. [185] CHAP. XIII.] SEPAKATE ESTATE. [§ 374 rate estate was not liable without a charge, and to have supposed that he had before stated that opinion in Greatly v. Noble, though he by no means expressed ^himself so strongly in disposing of that case, and distinctly abstained from deciding the point. § 373. I own I can perceive no reason for drawing any such distinction. If, in respect of her separate estate, the wife is in equity taken as a feme sole,, and can charge it by instruments absolutely void at law, can there be any reason for holding that her liability, or more properly her power of affecting the sepa- rate estate, shall only be exercised by a written instrument? Are we entitled to invent a rule, to add a new chapter to the statute of frauds, and to require writing where that act requires none? Is there any equity reaching written dealings with the property, which extends not also to dealing in other ways, as by sale and delivery of goods? Shall necessary supplies for her maintenance not touch the estate, and yet money furnished to squander away at play be a charge upon it, if fortified with a scrap of writing? No such distinction can be taken on any conceivable principle. But one of the earlier cases, Kenge v. Delavall," makes no mention of such a distinction, for there being indebted generally is all that is stated as grounding the claim. § 374. And in Lillia v. Airey,^ the party who had furnished necessary supplies to the wife was held entitled to recover to the extent of her sepamie maintenance. She had, it is true, given a bond but for £60 ; the court, however, held the creditor enti- tled to a larger sum, the separate maintenance exceeding the amount of the bond. So also in Owens v. Dickenson,^ Lord Coltenham, with reference to a written agreement, observed, "That within the authority of cases which have been decided, it would have been operative upon the feme coverfs separate estate, but not by way of the execution of a power, although that has been an expression sometimes used, and as I apprehend very inaccurately used, in cases where the court has enforced the contracts of married women against their separate estate. It ' 1 Vern. 32(5. ' 1 Ves. Jr. 277. = Cr. & Ph. 53. [186] § 376] SEPABATE ESTATE. [CHAP. XIII. cannot be an execution of tlie power, because it neither refers to the power, nor to the subject-matter of the power ; nor, in- deed, in many of the cases, has there been any power existing at all. § 375. Besides, as it was argued in Murray v. Barlee, if a married woman enters into several agreements of this sort, and all the parties come to have satisfaction out of her separate estate, they are paid pari passu; whereas, if the instruments took effect as appointments under a power, they would rank according to the priorities of their dates. It is quite clear, therefore, that there is nothing in such a transaction which has any resemblance to the execution of a power; what it is, it is not easy to define. It has sometimes been treated as a disposing of the particular estate ; but the contract is silent as to the sepa- rate estate, for a promissory note is merely a contract to pay, not saying out of what it is to be paid, or by what means it is to be paid ; and it is not correct, according to legal principles, to say that a contract to pay is to be construed into a contract to pay out of a particular property, so as to constitute a lien on that property. Equity lays hold of the separate, property, but not by virtue of anything expressed in the contract, and it is not very consistent with correct principles to add to the con- tract that which the party has not thought fit to introduce into it. § 376. The view taken of the matter by Lord Thurlow, in Hulme V. Tenant, is more correct. According to that view, the separate property of a married woman being a creature of equity, it follows that if she has a power to deal with it, she has the other power incident to property in general, namely, the power of contracting debts to be paid out of it ; and inasmuch as her creditors have not the means at law of compelling payment of those debts, a court of equity takes it upon itself to give effect to them, not as personal liabilities, but by laying hold of the separate property, as the only means by which they can be satisfied I observe that in Clinton v. Willis,^ Sir Thomas Plumer suggested a doubt whether it was necessary they should Sugden on Powers, 208. [1871 CHAP. XIII.] SEPARATE ESTATE. [§377 be secured by writing ; and it certainly seems strange tliat there should be any difference between a contract in writing, when no statute requires it to be in writing, and a verbal promise to pay. It is an artificial distinction, not recognized in any other case." § 377. The distinction has likewise been taken, that as the general engagements of a, feme covert are binding upon her sepa- rate estate, on the ground only of her intention that they should be a charge upon it, therefore, when it is not her intention to contract a personal debt, or to charge a gross sum upon her separate estate, the court cannot raise an implied assumpsit to charge it in opposition to her intentions. Thus, in Williams v. The Duke of Bolton,* where a married woman having separate property had sold an annuity charged upon that property, which annuity was void for want of a proper memorial, it was held that the grantee would not have an equity specifically to affect the fund clothed with a trust for the separate use of a married woman, with the consideration, upon the ground of the difficulty of raising an implied assumpsit contrary to the intention of the parties.' In which case an annuity granted by a feme covert charged upon her separate estate, being void for want of a pro- per memorial, it was held that the consideration money could be recovered out of her separate estate. "It is very difficult," said Lord Eldon, in his judgment, "to maintain that where her intention was not to contract a personal debt, or to charge a gross sum upon her separate estate ; but the contract was for an annuity, which contract the party dealing with her had it in his power to make effectual, and such as to bind her according to the intention of both, and he failed in that,. a court of equity ought to assist him, and to give him such a charge as she did not intend to give, or he intend to have." This class of cases, however, seem scarcely reconcilable with modern decisions. The court can make no personal decree against a married woman, but can affect her separate estate only.^ ' 4Bro. C. C. 297 ; S. C. 2 Ves. Jun. 138. " See Aguilar v. Aguilar, 5 Madd. 414 ; and Jones v. Harris, 9 Ves. 486. » Francis v. Wignell, 1 Madd. 264 ; Petty v. Malier, 14 Ben, Monroe, Ky. Eep. 247. [188] § 379] SEPARATE ESTATE. [CHAP. XIII. § 378. The extent of the relief afforded by equity against the separate estate of a feme covert^ cannot be more correctly laid down than by Lord Thurlow, in Hulme v. Tenant. "Deter- mined cases," says his Lordship, " seem to go thus far, that the general engagement of the wife shall operate upon her personal property, shall apply to the rents and profits of her real estate, and that her trustees shall be obliged to apply personal estate, and rents and profits when they arise, to the satisfaction of such gene- ral engagement ; but this court has not used any direct process against the separate estate of the wife; and the manner of coming at the separate estate of the wife has been by decree, to bind the trustees as to personal estate in their hands, or rents and profits, according to the exigency of justice, or of the engagements of the wife to be carried into execution.' § 379 I know of no case where the general eyigagement of the wife has been carried to the extent of decreeing that the trustees of her real estate shall make conveyance of that real estate, and by sale, mortgage, or otherwise, raise the money to satisfy that general engagement on the part of the wife."^ In Nantes v. Carrock,^ Lord Eldon refused to hold stock of a feme covert bound, upon the ground that stock was not liable to execution." A bill filed against a feme covert, in order to affect her separate estate, will not be defeated by the subsequent death of her hus- band, although the separate use then ceases,' nor if it be filed after his death ;" and the creditors of a, feme covert having sepa- rate property, may file a bill for payment of their debts after her- death,' and her specialty debts, as debts by bond, will not ' Burch and Wife .v. Breokenridge, 16 Ben. Monroe, 488. 2 Refused in Burch and Wife v. Breokenridge, 16 Ben. Monroe, 488 ; see also Stafford v. Marshall, 2 Atk. 68 ; Murray v. Barlee, 4 Sim. 82 ; S. C. 3 My. & K. 209 ; Field u. Soule, 4 Russ. 112 ; Nantes v. Carrook, 9 Ves. 189 ; Bullpin V. Clarke, 17 Ves. 365 ; Jones v. Harris, 9 Ves. 492, 493, 497 ; Stuart v. Lord Kirkland, 3 Madd. 387 ; Aylett v. Ashton, 1 My. & Cr. 105, 112 ; Francis v. Wigzell, 1 Madd. 258. 3 9 Vesey, 189. * See, however, now, 1 and 2 Vict. c. 110, s. 11, which renders stock liable to execution. 6 Field V. Soule, 4 Russ. 112. * Heatly v. Thomas, 15 Ves. 596 ; Kunge v. Delavall, 1 Vern. 326. ' Owens V. Diokensoii, 1 Cr. and Ph. 48 ; Gregory v. Looker, 6 Madd. 90. [189] CHAP. XIII.] SEPARATE ESTATE. [§ 380 have priority over her simple contract debts, but must both be paid pO'ri passu ;' in other respects, if she has left a will, her estate will be administered according to the ordinary rules in creditor suits.^ The undisposed personal estate of a, feme covert, not required to meet her debts and engagements, will belong to her husband, y^re mariti, if in possession. See Malonj t;. Ken- nedy,^ where Sir L. Shadwell, V. C, held that cash and bank notes arising from property settled to the separate use of a married woman belonged to her husband in his marital right ;^ and choses in action, as money in the funds, settled to the sepa- rate use of the married woman, will belong to her husband as her administrator.* And upon the death of the wife the husband, as administrator or survivor, is entitled to all property, real or personal, held to her separate use, unless he be excluded, or the wife, in the exer cise of a power conferred, dispose of the property." § 380. Where a woman, prior to her marriage, comes into the possession of money, which she invests, and, after her mar- riage, she keeps the same in the form of a chose in action, pay- able to her with the express consent of her husband, it remains her property, and an action upon the security is properly brought in her name alone. Where money belongs to a married woman, which has never been in her husband's possession, and is loaned by her with his assent, and a promissory note given to her for the amount, she may maintain an action thereon without joining her husband as co-plaintiff.' The case of Elizabeth R. Smart, by her next friend, v. Corn- stock,' was an appeal from a judgment entered at a special term. ' Anon. 18 Ves. 258 ; Owens v. Dickenson, 1 Cr. & Ph. 53. ' lb. 66 ; Norton v. Tuthill, 2 P. Wms. 144. > 10 Sim. 254. * Hulme V. Tenant, 1 Hare & Wallace's notes, 394 to 401. 6 Pronaly v. Fielder, 2 My. & K. 57 ; see Johnstone v. Lnmbe, 15 Sim. 308 ; Trigman v. Hopkins, 4 Man. & Gr. 389. » See also upon this subject generally, Brown v. Alden, 14 Ben. Monroe, Ky. Eep. 141—152 ; Payne v. Payne, 11 lb. 138 ; Allen v. Everett, 14 lb. 371. See also " Administration upon Wife's Estate." ' 24 Barb. N. Y. 411. [190] § 382] SEPARATE ESTATE. [CHAP. XIII. The action was brouglit for a promissory note for $100, made by the defendant on the 1st of May, 1849, and payable to the plaintiff, Elizabeth R. Smart, or order, on demand. The com- plaint alleged that the plaintiff was the lawful owner and holder of the note, and that the defendant was indebted to her there- upon. The answer contained a general denial of the allegations in the complaint. The evidence establishes the making of the note, and that the plaintiff, at the date thereof, was &feme covert, and that her husband, Benjamin Smart, is still living; that the consideration of the note was merely loaned by the plaintiff to the defendant, which money had never been used by her hus- band, but had been kept by her as her separate property. Judgment was given for the defendant, and the plaintiff ap- pealed.' § 381. Birdseye, J. If the money, for which the note in suit was given, belonged to the plaintiff at her marriage, and was then in her possession, it was by the marriage given to, and became the property of the husband. The marriage operated as a gift of it to the husband.^ But if at that time, instead of being in the form of money, it was invested upon contract, as by note, or bond and mortgage ; or it was otherwise a chose in action, then the husband's right thereto, instead of being abso- lute, was only limited and qualified. He must reduce them into possession before they become his absolutely. But he is not compelled to reduce them to his possession. It is optional with him to do so or not ; certainly as to the debtor, whatever may be the rule as to his own creditors. § 382. The testimony in this case is consistent with the fact that the wife had received this money prior to her marriage had invested it, and kept ever since in the form of a chose in action, with the express consent of her husband. If so, it was still her property, and this action was properly brought in her name. Instead of rendering judgment for the defendant abso- lutely, without passing upon the point specifically, this fact should have been found one way or the other; and the judg- 1 Ibid., 24 Barb. N. Y. 411. 2 2 Kent, 143 ; Clancy's Rights of Married Women, 2. 3, Stb ed. [191] CHAP. XIII.] SEPARATE ESTATE, [§ 385 ment would have followed for the plaintiff, if it appeared that the husband had omitted to reduce the chose in action to his possession. § 383. At common law, and previous to the passage of the statute for the more effectual protection of the property of mar- ried women (Act of April 7, 1848),' the husband was entitled to the personal property of the wife at the time of their marriage, or acquired in her behalf during their joint lives. He might, however, deprive himself of such right by an agreement before marriage, or a waiver in favor of the wife afterwards. He might, if he chose, allow the wife to retain or have as her separate estate what had been given' to her by others, or (except as to his creditors) by himself. If under such an arrangement or under- standing he had received any kind of such personal estate, or its avails, it would have been as her trustee, and she would not have lost her interest in, or control of the property. § 384. The principle that such reception did not alter the wife's right was recognized by Chancellor Walworth in Partridge v. Haven,^ by this court in Merritt v. Lyon,^ and by the Court of Appeals in the last mentioned case, on an appeal from a deci- sion in it made subsequent to that in the third of Barbour, and somewhat in conflict with it, although it was not intended to overrule it. In the case under consideration, the money had been given to the plaintiff before her marriage by her father, or it had been distributed to her as one of his next of kin. She had always had the control and management of it as her private property for her own use ; that she had done so pursuant to an arrangement with her husband, or at any rate with his consent, is clearly inferable from the fact that he drew the note and made it payable to her. § 385. The transaction is entirely clear of any charge of fraud, and involves simply a question of right between husband and wife, raised by a third person evidently without the con- nivance of either. The case steers clear of the exception in the ' N. Y. Acts. 2 10 Paige, 618. ' 3 Barb. S. C. R. 110. [192] § 386] SEPARATE ESTATE. [OHAP. XIII. third section of the act of April 11, 1849, amending the act of 1848, as the money was not given to the wife by the husband, but she had been allowed by him to retain what she had derived from her father's estate. The second section of the act of 1848, as there is no pretence of any violation of the previously ac- quired rights of the husband, and his creditors are not concerned in it, is applicable to this instance ; and, according to the cases under the two statutes for the protection of the property of married women, she can maintain this suit without joining her husband as co-plaintiff. It is unnecessary to consider whether, as independent of those statutes, the husband and wife might have jointly sued on this note, the nonjoinder of the husband would have been fatal to the suit. That the action might have been maintained at com- mon law in their joint names seems to have been settled in Nash V. Nash.' § 386. Since the wife is liable only to the extent of the liability attaching to her separate property, a court of equity merely operates upon it, and not in fact against her personally ;' yet it is necessary to make her a party and serve her with process in the cause,' and, therefore, she is personally liable to process of contempt, and may be committed to prison as may any other person for a like contempt, for failing to answer;' or she may be attached.' But there must be a previous order for her to answer. And it seems that, sometimes, the court will even require her presence, and, if necessary, direct inquiries into transactions as to her separate estate to ascertain their fairness, and the cir- cumstances under which the wife was induced to concur in ' 2 Mad. Ch. E. 133, which is quoted with approbation by Clancy (p. 7) in his work on the Rights of Married Women. 2 1 Brown, Ch. Cases, 20 ; Petty v. Malier, 14 B. Monroe, 234. ' 9 Vesey, 488. ' Bell V. Hyde, Pre. Chy. 330 ; Dubois v. Hole, 2 Vernon, 614; Pannell v. Taylor, 1 ; Turner v. Rnssle, 96. ^ As in Stansbury v. Watkyns, before Sir T. Sewell, 1772, cited in note, 2 Vernon, 614 ; and Ottway v. King, 12 Simon, 90 ; Carleton v. MoEnzie, 10 Vesey, 442. 13 [ 193 ] CHAP. XIII.] SEPAEATE ESTATE. [§ 386 the acts of her trustees where they oblige an application to the court.' Milnes v. Busk, 2 Vesey, Jr., 590 ; Like v. Beresford, 3 Vesey, 506. Note. — By sec. 16 Kentucky Revised Statutes of 1852, p. 395, it is provided that if any stock in any of the banks or other corporations of this State is taken for or transferred to any female, and it is expressed on the face of the certificate or transfer book of such stock that it is for the exclusive use of such female for her annual support, no husband she then has, or may thereafter have, shall take any interest in such stock or the dividends thereon ; and the same, at her death, shall pass to her heirs ; but, if unmarried, she may dis- pose of it by will ; or, if married, so dispose of it, with the consent of her husband, or without such consent, if so provided in the deed or will creating the estate. She may also receive the dividends, and give acquittances there- for, though married ; but she shall not in any way anticipate the same ; nor shall any dividend be paid upon an order or power given by her before the same is declared. [194 J § 388] INCIDENTS OF SEPARATE ESTATE. [CHAP. XIV. CHAPTEE XIV. INCIDENTS OF SEPARATE ESTATE. § 387. Monet conveyed m trust to be used, may lawfully be expended." A clause in a deed of trust in favor of an unmarried woman, requiring the trustee on her marriage, if she desire it, to vest the property in her absolutely, in case her husband die, and also requiring the trustee "to lay out so much of her money as will procure the necessary and comfortable means of house- keeping," may expend the whole estate and money conveyed.^ Such clause is not controlled by another in the same deed, requiring the trustee, in case of the death of the mother, to hold the estate for the use of the children, and does not require that the whole of the principal shall be withheld from the use of the mother, who was the maker of the deed, and placed the funds in trust.' § 388. By an antenuptial contract the wife conveys her slaves to trustees in trust for^the benefit of herself and husband during their joint lives, and upon the death of the husband to revest in the wife, reserving the power of disposition, by will, to the wife during coverture. The wife and trustees jointly convey to other trustees, for the benefit of the children of the wife ; the husband dies, leaving the wife ; his heirs have nothing in the slaves.* In such case, though the power of disposition reserved was that by will, yet being by deed, and possession given and ac- quiesced in by the wife, long after the title devolved on her by the terms of the conveyance in trust, it should not be dis- turbed.' • Thompson v. Thompson, 2 B. Monroe, 171. 2 lb. 168. ♦ Green v. Otter, 3 B. Monroe, 103. 3 lb. 169. * lb. 104. ' : [195] CHAP. XIV.J INCIDENTS OF SEPAEATE ESTATE, [§ 391 § 389. If one accept a conveyance for, and the possession of property in trust for others, and so hold it, the cestui que trust are entitled to the benefit of such possession against any estate of the trustee in his own right.' By an antenuptial contract a slave was vested in a trustee for the separate use of the wife ; she made a parol gift thereof to a third person. Held: That no title passed which would authorize the donee to maintain replevin against husband and wife.^ Where the use and profits of money and stock are devised in trust, to be under the control of trustees, they have the right to the possession thereof, paying the profits to the cestui que trust? § 390. A devise was made of land to trustees, in trust for the separate use o^ \he feme covert, the trust to determine at the death of the husband ; the wife died leaving children, the hus- band being beneficially seized during the life of the wife. Held: That he was the tenant by the courtesy, and entitled to the profits of the estate, though the trust be determined ; but if the death of the wife terminated the trust, he is entitled to her personal estate as her administrator, and consequently to the benefit of the use.^ § 391. Where land is conveyed to a trustee without specifi- cation of the duties of the trustee, or rights of the beneficiaries, the trustee holds a fee under our statutes for the use of the beneficiaries, which is subject to descend as well as other real estate, and does not revert to the donor or bis heirs, though all the beneficiaries die." The Chancellor will not, without a breach of trust by trustee, withdraw from his hands a fund, the profits of which only is given to cestui que trust, merely to enable such an one to loan it at more than legal interest ; and a refusal to loan a trust fund at more than legal interest is not a breach of trust.* ' Green v. Otter, 3 B. Monroe, 104. ^ Daniel and Wife v. Daniel, 6. B. Monroe, 230. » Young and Wife v. Miles' Ex'ors, 10 B. Mon. 290. * Payne v. Payne, 11 B. Mon. 139. " Gill's Heirs v. Logan's Heirs, 11 B. Monroe, 233. 8 Mountjoy and Wife v. Lashbrook, 2 B. Mon. 261. [196] § 394] INCIDENTS OF SEPARATE ESTATE. [CHAP. XIV. A trustee should account for interest annually to a cestui que trust entitled to the profits of a trust fund, and failing to do so, the interest should annually be made principal, and interest paid thereon.i § 392. The Chancellor has jurisdiction to enforce trusts, and prevent a perversion or abuse thereof; and trustees authorized to invest funds in permanent and profitable stock, have no right to withdraw it from a safe investment, where the interest is regularly paid, and pay their debts therewith, or invest them in stocks that are below par and fluctuating.* The failufe of a trustee to invest funds as directed, and the use thereof in his own business, is good ground for removal by the Chancellor.' A trustee who failed to invest a fund and its interest in stock as directed, but employed it in his own business, is responsible for interest on the annually accruing interest, if an investment was practicable ; if not, then for such interest as the fund would have produced in the hands of a man of ordinary prudence," § 393. An estate was devised to trustees for the sole use of the daughter of the devisor during life — remainder to her child- ren. The daughter obtained, upon the credit of the trust estate, merchandise suitable to her condition and that of her children. JSeld: That the Chancellor could apply the trust estate to the payment thereof.' In such a case the profits of the estate should be first applied to the support of the cestui que trust, leaving the principal un- diminished, if practicable ; but if necessary, even that might be applied to meet the objects of the donor, there being no express restriction to the appropriation of the profits only.* § 394. Where the father becomes trustee for his children, ' Mountjoy and Wife v. Lashbrook, 2 B. Mon. 262 ; City LouisviUe v. Bank United States, 3 B. Monroe, 153. 2 Trustees Transylvania University v. Clay, 2 B. Monroe, 386. ' Clemens v. Caldwell, 7 B. Monroe, 174. " lb. 175. 6 Campbell v. Eraman & Co. 8 B. Mon. 479. " lb. 480. [197] CHAP. XIV.] INCIDENTS OF SEPARATE ESTATE. [§ 396 the Chancellor will subject to a jealous scrutiny any contract in relation to the trust property ; yet where there is no proof of fraud, mistake, or improper influence, he will not interfere to set aside a contract in relation to the trust property, made after the child is of full age.^ A cestui que iru^t may resort to a court of chancery to com- plain of combination, fraud, or neglect of duty on the part of the trustee.^ Where a trustee, in answer to a bill by a cestui que trust, expresses his willingness that another should be appointed in his stead, which was done by the court, as it did not appear that the cestui que trust was dissatisfied with that proceeding, it was approved.^ § 395. The Chancellor has jurisdiction at the instance of cestui que trust to enforce the trust, charge the trustee, and com- pel others who get possession of trust property, knowingly, to surrender it." A trust fund applied by a fiduciary in the purchase of land, may be followed by the cestui que trust into the lands, whether it be conveyed or not — the statute does not control or restrict the equity.' § 396. In the case of Mountjoy v. Lashbrook,® the will de- clared that the property devised in trust was vested in the "trustees, for the daughters of the testator respectively, to be held for their exclusive use and benefit, in the name and under the control of said trustees." It also contained the following clause : " It is my further will that my sons are not to be held responsible for the trust estate put into their hands for their sisters, after they shall have applied it, or given it up to them, or disposed of it with their consent, to their use or the use of their children." ' Findley and Wife v. Patterson's Ex'ors, 2 B. Monroe, 77. 2 Guyton v. Shane and Wife, 7 Dana, 498. ' lb. 499. * Bixler v. Taylor, 3 B. Monroe, 362. * Brothers v. Porter, 6 B. Monroe, 110. ^ 8 Dana, 33. [198] § 398] INCIDENTS OF SEPAEATE ESTATE. [OHAP. XIV. At the time of the testator's death some of the slaves devised to the use of Mrs. Mountjoy, one of the daughters, were in her possession, and others of them remaining in his own possession, were taken and kept or hired out by the trustees for her bene- fit ; and each of the daughters obtained possession of the beds and other household furniture devised for their use. The trus- tees offered to surrender the slaves, also, to Mrs. Mountjoy and her husband, if he would execute to them a bond with security, for securing the use to his wife according to the trust, and restitution to them whenever demanded; and, also, the non- removal of any slave out of the county of Mason, without their consent. That offer was rejected ; and the trustees having refused to deliver the slaves either to Mountjoy or his wife, without some such bond, they filed a bill in chancery, praying, among other things, for a decree compelling the trustees to pay them the money bequeathed, and deliver to them the slaves unconditionally, and without any security. § 397. Held, That the daughters were entitled to the possession, as well as the use of the slaves devised to them respectively, without any bonds being given by them or their husbands for the preservation, proper use, or surrender of the slaves, subject to such supervision and control only, by the trustees, as may be necessary to prevent any perversion or abuse of the trust to the injury of the beneficiaries, or endangering the rights of those in remainder. So also as to the furniture devised in the same way. But as to money, which constituted a part of the same devise, the beneficiaries are not entitled to the possession of it ; it is the right and duty of the trustees to hold the principal sum, and make it as productive as possible, and pay over the proceeds annually to the beneficiaries. § 398. A devise of lands and slaves for life passes only the use, and so of furniture and stock; and such only of the original stock is to be surrendered to the remainder man, as may not have been worn out by the use, A devise of personalty, corn, wheat, &c., which is intended for consumption, passes the absolute right thereof.' ' Christler'3 Ex'or, &o., v. Meddis' Adm'r, 6 B. Mod. 37. [199] CHAP, XIV.J IHrCIDENTS OF SEPAEATE ESTATE. [§ 399 la the case of Campbell, &c., v. Brannin, &c.,' an estate was devised to a trustee for the sole use of the daughter of the devisor, a married -woman, and her children, during her life, remainder to her children. The daughter obtained, upon the faith of the trust estate, articles of merchandise suited to the condition of herself and her infant children: Held, that the trust estate was liable for the payment thereof, and that the Chancellor could so apply it. So long as the estate is fairly appropriated to the support of Mrs. Campbell and her family, there is no ground for discrimi- nating between the portion of expenditure charged to each bene- ficiary under the will. The testator did not intend to create adverse interests between the mother and children, or between the children themselves, but to secure a common fund for their common support during the life of the mother, and as her family, without remainder to the children after her death. It might well be supposed that although at any particular point of time a smaller expenditure might be required for the younger than for the older children, yet, in the course of the mother's life, this difference would be substantially equalized by the assist- ance derived from the elder children, and by their marrying and leaving the family, and by the increased expenditures upon the younger ones as they should advance in age and take the places of elder children in the family. § 399. The will does not, in our opinion, admit of a construc- tion which would separate the interest of Mrs. Campbell from that of her children, or which would authorize any compulsory separation or partition of the estate, unless in some case of flagrant abuse, or urgent necessity. A proper charge against Mrs. Campbell, incurred for the support of the family, is no more a charge upon her interests in the estate than upon that of her children. If a charge upon the estate at all, it is a charge upon the interests of all. It is true, the principal fund should, as far as practicable, remain unimpaired for the benefit of the family during Mrs. Campbell's life, and of her children afterwards. But the primary ' 8 B. Monroe, 479. [200] § 402] INCIDENTS OF SEP ABATE ESTATE, [OHAP. XIV. object of the will was the support of the family during Mrs. Campbell's life, and whatever may be the case with regard to the land and slaves, we are not prepared to say that the money and personalty of the trust estate might not, under urgent cir- cumstances, be directly appropriated to that object. There is no express restriction on the subject in the will, and we do not perceive that any other is imposed by the law, or should be im- posed by the Chancellor than such as would be dictated by a sound and prudent discretion in view of the condition of the estate and the family. We cannot say that this discretion has been abused in the present case. § 400. Again, if it be a separate estate, as distinguished, in fact, from that kind of an estate which the wife acquires in lands descended, and in slaves by way of distribution, or by a conveyance in general terms, then under the provisions of the Kentucky Eevised Statutes, the wife had no power to charge or incumber it in any manner ; and as the deed (creating the estate) does not confer such power, the case is not embraced by the amendatory acts on the subject. § 401. Every trust estate created for the use and benefit of the wife is not a separate estate, but it must also clearly appear that the intention of the gift was that it should be for the wife's separate enjoyment. That intention is clearly manifested by the language of the deed (conveying the lands and slaves to Wm. Montgomery in trust for her use and benefit) ; it provides that the trustee shall hold the property in trust for the use, benefit, and support of the wife and her children, and shall permit her and her children to -use, possess, and enjoy every part and parcel of the property which is to be controlled by her for her comfort and support, and for the support and education of her children. The whole con- trol and management of the property is thus conferred on her to the entire exclusion of her husband. § 402, The provisions of the Kentucky Eevised Statutes con- cerning estates held in trust, has no application to separate estates, which are something more than mere trust estates. They apply [201] CHAP. XIV.J INCIDENTS OF SEPAEATE ESTATE. [§ 404 to estates that are, properly speaking, trust estates, and not to separate estates. A separate estate is peculiar in its character, and can only belong to a married woman, although it may be created pre- vious to her marriage. The trust estates referred to in the Kentucky Eevised Statutes are those that may belong to any person whatever. § 403. Nor has the provision in the Kentucky Eevised Statutes, which renders the real estate and slaves of the wife liable for such debts and liabilities contracted on account of necessaries for herself and family as may be evidenced by writ- ing, signed by her and her husband, any application to her separate estate. That provision relates to the wife's general property as contradistinguished from her separate estate. § 404. The same chapter contains the provisions relating to the wife's separate estate, which are wholly inconsistent with those concerning her other and general property by which it is manifest ; a distinction between them was intended to have been made. And therefore held that the wife and husband could not bind the property for the payment of debts created by her in the purchase of goods, &c., for the use of her family, and for which she and her husband had executed their notes, expressing the same upon their face.^ ' stone and Others See Craig v. Paine, 4 Bibb. 337 ; Blair, &o. v. Dade's Ex'r, 9 B. Monroe, 61 ; see also MoClanalian v. Beasley, 17 B. Monroe, 114. = MoCann v. Litcber, 8 B. Monroe, 326-7. = Hunt's Adm'r v. Dupay, 11 B. Monroe, 285. * Worsley's Ex'rs v. Worsley, 16 B. Monroe, 470. [218] § 437] HOW SHE MAT HOLD AND ACQUIRE, [CHAP. 2VI. § 436. It is, however, contended that in equity the estate conveyed to the wife should be regarded as satisfaction of her legal right to demand a portion of her husband's estate after his death, and cases have been referred to where the wife's dis- tributive share of his estate has been deemed a satisfaction of his covenant or obligation to leave her so much money, or a certain specified part of his estate. But the oases are not at all analogous. Here there was no covenant by the husband to leave money or property to the wife. He had conveyed to her part of his estate, which he designed her to have for a certain purpose, by an absolute and unconditional deed. This was a mere gratuity on his part. It could not satisfy any claim she had upon him for a portion of his personal estate at his death, for no such claim existed at the time the deed was executed. He had a right during his lifetime to dispose of bis personal estate as he pleased without her consent, provided this disposi- tion took effect before his death, and consequently she had no legal claim to any part of it at the time the deed was executed. Her claim did not accrue until his death, and that claim cannot be considered as satisfied by a donation made to her at the time the claim itself had no existence. § 437. The law having trusted the husband with the pre- servation of the rights of the wife, it will not permit hini to hold or put in possession of another, to be held adversely, any property placed in his possession belonging to the wife during coverture. "Where the husband is tenant by the curtesy, his deed of bargain and sale conveys no greater estate than he held, and the statute of limitations does not commence to run until the death of the husband, against the heirs of the wife.^ The possession of the husband of land under a gift to the wife, enures to the benefit of the title of the wife, and, if con- tinued for more than twenty years, perfects her title, even against the father of the wife, the patentee of the land who may survive the wife.' ■ Merriman's Heirs v. Caldwell's Heirs, 8 B. Monroe, 33. 2 Ibid., 8 B. Monroe, 32. [219] CHAP, XVII.] OUETESY. [§ 439 CHAPTEE XVII. CUETEST. § 438. It is well settled in the English common law that in the case of an estate tail dower and curtesy continue after the estate is determined, as, where land is given to a man or a woman, and the heirs of his or her body, and the donee marries and dies leaving no heirs of the body, the surviving wife is en- titled to dower, or the husband, if there had been issue born alive to curtesy, though the estate . tail is determined accord- ing to its own limitations, and the interest of the donor or re- mainder man becomes immediate.^ § 439. In Paine's case,^ where this question as to curtesy was decided in favor of the surviving husband against the re- mainder man, the argument that the derivative estate must cease with the primitive was answered by the court by saying in effect that the right to curtesy was tacitly implied in the gift, and that it was not derived merely out of the estate of his wife, but was given to the husband by the privilege and benefit of the law, for as soon as he had issue his title became initiate, and could not afterwards be defeated by death of the issue, which, being the act of God, ought not to turn to his prejudice. This reasoning applies substantially to the wife, whose title to dower is also initiate during the coverture, not in consequence of the birth of issue which is not necessary, but by the mere fact of marriage, and the husband's being seised of an estate of inheritance which any issue of the marriage might inherit. Accordingly it is held, as already stated, that the surviving wife of a donee in tail is entitled to dower, although by the death of her husband without issue the estate in tail is deter- ' Northoutt V. Whip, 12 Ben. Monroe. 2 8 Coke Eep. 34. [220] § 441] CURTESY. [chap. XVII. mined. The estate tail must, however, have been of such a character as that any issue which she might have had by the marriage, might, by possibility, have inherited it as heir to her husband ; and so in the case of curtesy, the issue actually born must have been such as, according to the terms of the entail, might inherit the estate as heir to the wife. § 440. In Littleton's treatise on tenure,^ it is laid down, "that in every case where a man taketh a wife seised of such an estate of tenements, &c., as the issue, which he hath by his wife, may, by his possibility, inherit the same tenements of such an estate as the wife hath, as heir to the wife ; in this case, after the de- cease of the wife, he shall have the same tenements, by the cur- tesy of England, but otherwise not. And also in every case where a woman taketh a husband seised of such an estate in tenements, &c., so as by possibility it may happen that the wife may have issue by her husband, and that the same issue may, by possibility, inherit the same tenements of such an estate as the husband hath, as heir to the husband ; of such tenements she shall have her dower, and otherwise not." And he proceeds to state the case, if tenements be given to a man and to the heirs which he shall beget of the body of his wife ; yet if the husband die without issue, the same wife shall be endowed of these tenements, " because (as he says) the issue which she by possibility might have had by the same husband, might have inherited the same tenements." And yet in this case, and in every one in which tenant in tail dies without such issue as could inherit the estate as his heir in tail, it would seem that the estate is determined except so far as in contemplation of law, and, as was said in Paine's case with regard to curtesy, by privilege and benefit of the law, it is prolonged or continued for the sake of the wife's dower. § 441. Littleton expressly says, that in every case in which the wife might have issue which might inherit as heir of the husband, she shall be endowed. And although Coke, in his commentary upon this section (40, a), mentions some exceptions ' Sec. 52. [221 J CHAP. XVII.] CUETEST. [§ 442 to this rule ; they seem to be founded on statutes, or on peculiar considerations not applicable to the case before us. Here W. L. Northcutt had, in the labd devised to him, an estate in fee, defeasible, indeed, on the contingency of his death without leav- ing lawful issue, but which was an estate of inheritance in him up to the last moment of his life, and which, unless alienated by him, not only might but must have descended on his death to any issue of the marriage then living. In the case of an evic- tion by title paramount or by entry for breach of a condition, and other similar cases, the estate is absolutely at an end, though the husband be living, and, although he be dead, leaving issue on other heirs. Here, as in the case of an estate tail, the hus- band may rightfully enjoy the estate during his life, and at his death it is continued in his heirs if there be any of the desig- nated character. And as the possibility that the wife might have had issue that might- have inherited, be sufficient, though there be no such issue in fact to sustain the right of dower, it would seem clear upon analogy that, under the rule stated by Littleton, the possibility of such' issue should sustain the right in this case of a defeasible fee in the husband. § 442. But this conclusion does not rest solely upon the ground of analogy, nor is the rule laid -down by Littleton ap- plied for the first time to an estate like the one before us. The cases of Sumner v. Partridge," in each of which either curtesy or dower was demanded, the right in each case was made to depend exclusively upon the question whether the issue of the marriage took, or would have taken, as heirs of the deceased wife or husband. In Sumner v. Partridge, curtesy was denied, because, in the opinion of the chancellor, the children of the deceased wife took as purchasers under the devise, and could not have taken by descent from her. In the case of Barker v. Barker, curtesy was also denied, because, under the construction given to the devise, the children of the wife took as purchasers, and could not take the estate as her heirs. > 2 Atkyna, 46, in 1740 ; Buokworth v. Shirkell, 3 Bos. & Pull, 654, in notes 25th Geo. III. ; Moody & Wife v. King, 2 Bingham, 446, 1825 ; 2d Simonds, 249, 1828. [222] § 444] CURTESY. [CHAP. SVII. § 443. In Buckworth v. Shirkell, the estate was devised to trustees in trust for M. B., until she attained twenty-one years, or married, and then to the use of^her and her heirs, with a de- vise over in case she should die under the age of twenty-one and leave no issue. M. B. married and had a child, so that the fee was in her under the devise ; but the child died, and then the mother died under twenty-one. Lord Mansfield stated the rule from Littleton, and concluded by saying: "During the life- time of the wife she continued seised of a fee simple, which her issue might by possibility inherit." And issue having been born, curtesy was allowed. As curtesy and dower are almost identical in respect to the nature of the estate out of which they arise, the case just cited might be regarded as sufficiently in point to form a precedent. But the case of Moody and Wife V. King, being upon the question of dower itself, is more directly applicable. § 444. In that case' lands were devised to W. 'S. and his heirs forever (charged with an annuity); " and if W. F. should have no issue, the estate is, on the decease of W. F., to become the property of the heir-at-law, subject to such legacies as W. E. may leave to the younger branches of the family." W. F., who was seised under the will and married, having died without issue, a bill was filed by his widow and her second husband claiming dower and an account, &c.. The question whether the widow was entitled to dower which W. P. took under the will was referred to the Court of Common Pleas, and was decided in favor of the right of dower. In the opinion of the court, the rule from Littleton is stated as furnishing a test of the right of dower at once simple and just; and it is said "the children of W. F. must have inherited an estate in fee simple indefeasible, had any survived him, and the executory devise would have been at an end ; the case of his widow comes within the rule of Littleton." And it is added, that "it would be a strange anomaly that the widow of one whose issue can only be tenants in tail should be dowable, and she whose children would be tenants in fee by inheritance from their father should not." 1 2 Bingh. 447. [223] CHAP. XVII.] CURTESY. [§ 447 § 445. In Bissett on Estates for Life,' the rule is stated accord- ing to the doctrine of these cases. Upon principle and authority, therefore, we are satisfied the true and substantial test of dower is, that the issue of the wife by the marriage might inherit the estate from the husband as his heir or heirs.^ "W. E., by deed dated August, 1789, conveyed to his son-in- law, J. P., and to D. P., his wife, a tract of land, "to have and to hold during the term of their natural lives ; and for and during the term of the longest lives of them. At the decease of both parties the said land with its appurtenances should descend to their legitimate children. If the said J. P. and D. P. deceased leaving no issue from their union, then the said land should revert to the said W. E., the grantor and his heirs." § 446. D. P., the wife, died, leaving three children, and the surviving husband, J. P., sold the land. Within twenty years after her death, the heirs sued for the land claiming under the deed. Held: 1. That the grantees, J. P. and D. P., only took an estate for life, and that of the longest liver. 2. That a fee simple right vested under the deed in their children as pur- chasers. 3. That the conveyance was not in conflict with the rule in the Shelly case, or by the statute of 1776, an estate tail converted into an estate in fee, and that the children had a right to the land. c § 447. Judge Blackstone, in the case of Perrin v. Blake (de- cided in 1776), said: "That all the cases which had occurred from the statute of wills to that time, in which 'heirs of the bodies' had been construed to be words of purchase, were redu- cible to these four heads: (1st.) When no estate of freehold was given to the ancestor. (2d.) Where no estate of inheritance was given to the heir. (3d.) Where other explanatory words were immediately subjoined to the former. Or, lastly (4th.) Where a new estate of inheritance was grafted on the heirs of the body." ' Par. 81 and seq. 42d No. Law Library, side page 58 and seq. ; and in Bell on Property, 272 ; 67th vol. Law Library, side page 186. * Northoutt V. Whipp, 12 B. Monroe, 12-72. [224] § 449] CURTESY. [chap. XVII. § 448. In the cases coming under the first two of these heads, the rule is so clearly inapplicable that there can be no diversity of opinion respecting them, when it was once ascertained that no freehold was given to the named ancestor, or that no estate of inheritance was given to his heir or heirs. The rule does not create an estate either of freehold or inheritance, when one of them only is given. ■ But where both are given, the freehold to the ancestor and the inheritance to his heirs, general or special, to take after him either mediately or immediately, it vests the inheritance in him, and the heirs must take by descent, if at all, on one of the grounds coming under the third or fourth head • its application to the case is repelled, and the limitation in both of its branches takes effect according to the intention. § 449. With regard, however, to the sufficiency of certain words or circumstances to repel the application of the rule by showing the sense in which the words heir or heirs of the body were used in the conveyance, and also upon the question whether, in the particular limitation, a new estate of inheritance was graf- ted on the heirs, or heirs of the body, there has been at dififerent periods a great difference of opinion, and a corresponding diver- sity of decision, as more or less regard may have been paid by different judges to the evidence of intention, or to the rules of law which operate upon it. Without attempting to present, and much less to reconcile these diversities, we refer, for a par- tial exhibition of them, to the essay of William Hayes, of the Middle Temple, and the analytical tables of cases appended thereto, to be found in the 7th volume of the Law Library, printed in 1835. We refer also to the case of Prescott v. Pres- cott's Heirs," and the cases there cited, to show that the expla- natory words or circumstances there deemed sufficient to repel the application of the rule and to make the heirs of the body of the devisee for life take as purchasers, after having been decided^ to be sufficient in several British cases, were, by a recent deter- mination of the House of Lords, in opposition to the judgment of the Court of King's Bench, decided to be insufficient, and afterwards so held by the courts. > 10 B. Monroe, 56. 15 [225 ] CHAP. XVII.] CUETESY. [§ 452 § 4.50. But whatever diversities of opinion or decision may have existed upon the question, whether by, certain terms used in conveyance to one for life, with a further limitation to the heirs, or the heirs of his body, a new estate of inheritance has been grafted on the heirs, as the stock from which the succes- sion is to be traced, as from its root, there is no case in which it has been decided that the rule in Shelley's case applies to a gift to one for life, and on his death to the heirs of his body, if a new estate of inheritance is in fact, and clearly grafted upon the heirs of his body, and which, according to the law of descents and of entails, they could not, under the description of heirs of his body, take from him by descent. § 451. In the case of McNair's Administrators v. Hawkins,* which was a devise of land and slaves made in 1758, when by law slaves might be annexed to land and devised in tail, the testator gave his land and slaves to his daughter "Elizabeth and her legitimate children forever, which children of her body were to share the same equally among them, be they son or daughter, or sons and daughters, after the decease of the said Elizabeth." The court, after stating that in a will the word "children" may be deemed equivalent to the words "heirs of the body," decided that Elizabeth took only an estate for life, and her children took by purchase, because the estate was given to children, both males and females, when by the law then ex- isting it would have gone by descent to the eldest male alone, so that "the manner in which the estate was limited over to them precluded all legal possibility of their taking by descent," and in the case of Prescott v. Prescott's Heirs,' the principle of the case just noticed, and of the other cases referred to, is said to be that the sense of the words " heirs of the body" was held to be restricted, and they were made to operate as words of purchase, by reason of such additional words or direction as broke the ordinary course of descent, and showed that the estate was not to descend from the first devisee. § 452. Whether these two cases properly decide that upon the devises in question the words indicating an estate by descent ' 4 Bibb, 380. 2 10 B. Monroe, 59. [22(5] § 453] CURTESY. [chap. XVII. from the first taker were sufficiently qualified, either by addi- tional explanatory words, or on the ground that a new estate of inheritance was grafted on the heirs of the body of the first taker, is not now the subject of inquiry. Wherever heirs, or heirs of the body, under that description, take by purchase, they necessarily take a new estate, of which, if it be an estate of inheritance, they must constitute the stock or root from which the heirs or inheritors are to proceed. And if, on the other hand, it sufficiently appears that, although the ancestor take a life estate by the same conveyance, they, as the heirs of his body, are intended to take a new estate of inheritance, which they could not take by descent from him, either under the terms descriptive of his estate, or under those in which they are described as his heirs, and under which alone they could take by descent from him, then it would be legally impossible for them to take by descent from him the estate which is limited to them by the conveyance, they must take it by purchase. Such would be one of a new inheritance grafted on the heirs of the body of the first taker or donee for life, and whether it be considered with reference to the principles on which the appli- cation of the rule in Shelley's case depends, as understood and explained by Fearne and Hargrave in the observations above quoted, or with reference to the current of adjudged cases with respect to the words heirs of the body as analyzed by Judge Blackstone, it is a case in which the words "heirs of the body" should be understood in a restricted sense as words of purchase, applying to those persons who would be heirs of the body of the tenant for life at his decease, and not as words of limitation applying to the preceding estate, and operating to unite with that estate in the ancestor the estate of inheritance intended for the heirs. In such a case there is not, either by construction or by the operation of the rule in Shelley's case, any estate of inheritance, either in fee tail or in fee simple, in the donee for life ; but the fee is in the heirs as purchasers, that is, by force of the gift, and not by descent. § 453. What, then, is the nature of the deed before us ? and of the limitations it makes of the land which it conveys? Ob- viously the deed evidences a gift, and not a sale. If not strictly a marriage settlement, it is at least a family settlement, by which £227] CHAP. XVII.] CURTESY. [§ 455 a father makes provision for his children, and especially for his married daughter and her issue. Though in form a deed inter partes, it is in reality as much the act of the father alone who makes the gift, as a will is the exclusive act of the testator, requiring nothing from the donees, and leaving nothing for them to do but to enjoy the gift his benevolence has prompted. And as it proceeds from the same benevolent motives as a will, and is like it a pure donation, it should receive, as such instru- ments do receive, the same benign interpretation, with the view of effectuating the intention of the donor. § 454. The limitation or conveyance made by the deed may be briefly stated as being to John Pitman, and Dorothy, his wife, during their joint lives, and the life of the longest liver ; at their decease the land shall descend to the heirs of the body of the said John and Dorothy, and shall vest in such heirs in fee simple. Had the deed stopped with the declaration that, after the death of the survivor of the two donees for life, John and Dorothy Pitman, the land shall ensue and descend to the heirs of the body of the said John Pitman and his wife Dorothy, then John Pitman would, after her death, have been tenant in fee tail special. Por there being then nothing to repel the appli- cation of the rule in Shelley's case, the estate of inheritance given to his special heirs by the deed would, by operation of the rule, have vested in him, and, merging the estate for life, would have made him immediate tenant of the estate described by the gift to him and the heirs of the body of himself and the wife designated, for, to use another form of expression, the words heirs of his body, &o. would have operated as words of limitation applying to and describing his own estate, and not as words of purchase indicating or securing any direct benefit to the heirs. And as these words would be taken as describing such an estate in him as would or might be descendible to the sort of heirs described by the words of inheritance or limitation, he must, as the law in former times was, have had an estate in special fee tail, which the act of 1776 would have converted into an estate in fee simple, of which he would have had the absolute control. § 455. But the deed does not stop with the limitation to John [228] § 455] CURTESY. [CHAP. XVII. Pitman for life, and at his death to descend to the heirs of the body of himself and his wife Dorothy, which, under the rule, would have been the same as a limitation to him and the heirs of the two bodies mentioned. In addition to the direction that on the death of the survivor of the two donees for life, the land shall descend to the heirs of their two bodies, it is also declared that it shall be vested in such heirs in fee simple. In thus giving them a fee simple, or declaring that, upon the death of the donee for life, the heirs of his body by his wife Dorothy shall have the land in fee simple, the deed limits an estate to them which they could not take by descent from a tenant in tail. To use the language of Chief Justice Boyle, in the case before cited, from fourth Bibb, "the manner the estate is limited over to them precludes all legal possibility of their taking by descent" from John Pitman ; that is, that it was legally impossible (as the law aforetime was) that an estate tail in John Pitman should descend to the heirs of his body in fee simple, and the limitation of the estate in fee simple to them shows that the words "heirs of his body," &c., were not used in their technical or legal sense as comprising the whole line of heirs, such as are described, and in which the estate was to descend ; but in the more restricted sense, as designating the persons who at his death, or the death of the surviving donee for life, would be their joint heirs, and it thus repels the application of the rule and the idea of an estate in tail. It is, moreover, most obvioas that this deed, by its limitation of an estate in fee simple to the heirs of the body of the donees for life, does graft upon such heirs a new estate of inheritance, of which said heirs, and not the donees for life, are to be the root and stock from which the succession is to flow and be accounted. That is manifest from the consideration that the estate in fee simple in the heirs of the body, who upon the death of the donee for life might take that estate, would be discernible, not merely to the heirs of the body of John Pitman, but to the heirs general of those who might be the heirs of his body at his death, and therefore to persons who were not only not descended from him, but not descended from any of his ancestors. The heirs of the body are to have an estate different, not only from that which the deed by its terms gives to the ancestor, but different from that which the rule of the law, looking to all the terms which could be regarded as applying [229] CHAP. XVII.J CUETESY. [§ 457 to his estate, would give to him. And the estates being thus of different qualities, there seems to be the same reason for saying on that ground that they cannot coalesce, and the rule in Shel- ley's case does not apply, as there is for the same conclusion, where the estate for life is equitable, and the estate limited to the heirs is legal. In which case the doctrine is well established that the rule does not apply, and that the estates remain sepa- rate, notwithstanding the use of the word heir or heirs of the body of the donee for life. § 456. But without recurring to this analogy, it is sufficient to rest the case upon the palpable ground that a new estate of inheritance is by this deed grafted upon the heirs of the body of the donee for life, which they could not take by descent from him, whether he be tenant for life or tenant in tail, and which, therefore, they must take under the deed, and as purchasers or donees. In support of this principle, directly sustained by the opinions of Hargrave, Fearne, and Blackstone, we refer to Archer's case, 1 Coke, 66 ; to Cheek v. Day, Moore, 593 ; to be found also in Fearne on Eemainders ; and to Doe v. Laming, 2d Burrow's Eep. 1100. In the first of these cases the gift was in substance to A. for life, then to A.'s next heir male, and to the heirs male of the body of such next heir male. In the second it was " to A. for life, and if A. marry and have heirs of his body to A.'s heir, and the heirs of such heir." In the third case it was to A. (not for life) and the heirs of her body, as well females as males, and their heirs and assigns forever, share and share alike, as tenants in common. § 457. The first two cases have been especially regarded as establishing the principle above stated, and hence the reference in the quotation from Hargrave and Fearne, swpra, to the limi- tation, being to the heir in the singular and his heirs, as show- ing that a new inheritance is grafted on the heir. But the word heir denotes descent as certainly as heirs, and is also nomen col- ledivum. And as the principle is, according to all the authori- ties quoted, that the words "heirs of the body" may be words of purchase, and are so when a new inheritance is grafted upon them, of which they, and not their ancestor, are the root or Stock, it can only be necessary that the limitation be such as to [230] § 459] CURTESY. [CHAP. XVII. show plainly and unequivocally that a new inheritance is grafted upon the heirs of the body. There may, as already observed, be a difference of opinion as to what may sufSce to make this sufficiently manifest. But there can be no difference of opinion as to the effect of the limitation in fee simple to the heirs of the body as made in this case, as unequivocally showing that a new estate is grafted upon them. And we can-not doubt that the words are sufficient to give them an estate of inheritance, of which they, and not their ancestor, the donee for life, are the root and stock. § 458. In the case of Jarvis & Trabue v. Quigly,' this court applied to a deed of gift to the relatives of the donor the liberal construction applicable to wills upon the same principle on which that rule of construction had been applied in England to marriage settlements and covenants to stand seized. And refer- ence is made to 2d Yesey, Sr., 660, and 3d Atkyns, 642. The case of Turman v. White's Heirs^ is an example of this liberal construction. Applying the same principles to the construction of this deed, we are satisfied that the clause, "and shall be vested in such heirs in fee simple," applying to the land which it was before said shall ensue and descend to them, did give to the heirs an estate of inheritance. And as that estate could not descend to them from the previous donees, it is obvious that the word descend used just before means nothing more than pass or go. In the case of the Attorney-General v. Wallace's Devises,^ where the question was whether the testator's daughter took an estate in tail, it was decided that she took only an estate for life, although the testator said: "I will all my real estate, &c., to be entailed to her and her child or children." § 459. Having thus determined the legal effect of the limita- tion to Pitman and wife, and to the heirs of their bodies, by construction of the terms in which it is made, it is unnecessary to notice subsequent expressions in the deed from which infer, ences might be drawn either for or against the construction here adopted. We, however, see nothing in the subsequent > 10 B. Monroe, 104. " 14 B. Monroe. 3 7 B. Monroe, 611. [231 J CHAP. XVII.J CUETESY. [§462 parts of the deed whicli can operate to give an estate tail to Pit- man or to show that such was the intention of the grantors in the deed The sense of the words used in the primary and direct limitations being fixed, the same or similar words used as introductory to the subsequent limitations over, should re- ceive the same interpretation, and should not change the effect of the primary limitations. We refer to the case of Moore v. Moore,' and to the case of Daniel v. Thompson,^ as showing the interpretation and effect of the words "dying without issue, or without leaving heirs of the body," used in introducing ulterior limitations where the question of an estate tail in the first taker depends upon such subsequent introductory words. Although we entertain great respect for the decisions of the courts of Vir- ginia, we do not, for reasons stated in the last case cited above, feel bound to give conclusive effect either to their construction of the statute abolishing entails, or to their declaration of the law as it aforetime was in its application to the question, estates tail after the great changes made, not only by the act of 1776, but by other general laws affecting not only the rules of descent, but the modes of conveyance, and therefore the rules of con- struction. We do not, however, know of any Virginia deci- sion directly applicable to a limitation such as is now before us, and we have been referred to none. I 460. We are, therefore, of opinion that Pitman had only an estate for life in the land, and the heirs of the body of him- self and wife, living at his death, took a new fee simple, whence it follows that, upon the facts now appearing, Mary J. Stephen- son was entitled to recover one- half of the land in contest in this case. Wherefore the judgment is reversed, and the cause remanded for a new trial.' § 462. Where the husband, in order to assign over an interest in his wife's estate, gave an order on her guardian for a certain sura, and she had nothing in the guardian's hands but the pro- fits of the land accruing to her after a divorce from her husband, ' 12 B. Monroe, 651. « 14 B. Monroe. 3 15 Ben. Monroe, Ky. Rep. 282-308. [232] § 466] CURTEST. [OHAP. XVII. the assignee was not permitted to take anything; as the interest to which the husband might have had a right was too remote and contingent, even had it not been terminated by the divorce.' Held also in this case that, notwithstanding there being issue born alive, a divorce terminated his claim to curtesy. § 463. A husband has no power by will to dispose of his wife's distributive share in her father's estate, which has never come into his possession. If the husband attempts such a dis- position of his wife's interest in her father's estate, and makes bequests in the same will to his wife, it presents a case in which she must elect to take under or against the will.^ § 464. It cannot be disputed that, in 1845, at the time the premises descended to the plaintiff's wife, Lucy (whose maiden name was Fillmore), the plaintiff acquired a freehold estate jure uxoris? A husband's estate in the hands of his wife, held in her own right, is denominated a freehold, because of its certain con- tinuance during coverture, and during his life, after her decease, provided he is tenant by the curtesy. As a necessary incident, the husband becomes entitled to the possession, and to the rents and profits commensurate with his estate, and, if ousted, may recover the same in his own name. § 465. These marital rights were well settled by the common law, but the defendant's counsel contends that the provisions of the statutes of 1848 and 1849, referred to, abrogate the hus- band's estate, restoring to the wife the fee absolute, with full control and power of alienation irrespective of the husband. It appears that in this case the wife did not act upon this view of the law, by leasing and subsequently conveying the premises to the defendant. But we are clearly of the opinion that neither the statute nor the conveyance of the wife affected in the least the estate of the plaintiff, or his right to prosecute this action.^ § 466. To entitle a husband to an estate as tenant by curtesy ' Oldham v. Henderson, 5 Dana, 255 ; Story, § 1413. ^ Tondin v. Jayne, &o., 2 B. Monroe, 162. » 2 Kent's Com. 130, 3d ed. * Smith v. Colvin, 17 Barbour, 160. [233] CHAP. XVII.] CUETEST. [§ 4:68 the wife must be seised in fact and in deed. It is not sufficient that she has a seisin in law of an estate of inheritance. Hence, if there be an outstanding estate for life, the husband cannot be tenant by the curtesy of the wife's estate in reversion or remainder, unless the particular estate be ended during the coverture. There can be no seisin, in fact, of a vested remainder limited on a precedent freehold estate. Where a life estate and the immediate reversion meet in the same person, the particular estate is merged in the greater estate ; and if the two estates unite in a feme covert, her husband is entitled to a life estate as tenant by the curtesy. § 467. Parker, J., said: "The first question to be determined is, what estate Mrs. Taylor took under the following language of the will : ' Fourthly. I do give, devise, and bequeath to my beloved daughter, Julia Maria, the wife of Benjamin Ogle Tay- lor, and sVjcTi her child or children as shall at her decease he living, and shall have attained, or shall thereafter attain the age of twenty- one years, all and singular the rest and residue of my real and personal estate and property of every description of which I may die seized and possessed, or entitled unto, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, to and for her sole and separate use, to all in- tents and purposes as though she were a feme sole and unmar- ried.' § 468. " The plaintiff claims that the words ' and such her child or children,' &c., are words of limitation, and that under this devise Mrs. Taylor took an estate in fee. On the other hand, the defendants contend that the words above quoted are words of purchase, giving a remainder to the persons described, and that Mrs. Taylor took only a life estate. "The rule in Shelley's case,' which prevailed in the courts for so long a time against the manifest intention of the testator, has been abolished in this State by the Revised Statutes,^ which pro- vide that where a remainder shall be limited to the heirs or 1 Coke's Rep. 104. i^ 1 R. S. 725, § 28. [234] § 470] CURTESY. [CHAP. XVII. heirs of the body of a person to whom a life estate in the same premises shall be given, the persons who, on the termination of the life estate, shall be the heirs or heirs of the body of such tenant for life, shall be entitled to take as purchasers by virtue of the remainder so limited to them. Before the enacting of this statute the general rule was, that when a person took an estate of freehold under a deed, will, or other writing, and in the same instrument there was a limitation by way of remainder to his heirs or the heirs of his body, as a class of persons to take in succession, from generation to generation, the limitation to the heirs entitled the ancestor to the whole estate.' § 469. " But even then, if the testator annexed words of ex- planation to the word 'heirs,' as to the heirs of A. now living^ showing thereby that he meant by the word heirs a mere de- ■ scrvptio personarum, or specific designation of certain individuals, it was to be regarded as a word of purchase.' Mr. Hargrave' gave to the rule an absolute application where the testator did not intend to break in upon and disturb the line of descent from the ancestor, but used the word 'heirs' as a nomen collectivum for the whole line of inheritable blood. But the rule was never applicable when there was a distributive direction given incom- patible with the ordinary course of descent." § 470. " It seems to me very plain that the words in the will under consideration, tested even by the rigid rule as it stood before the adoption of the Kevised Statutes, would be regarded as words of purchase and not of limitation. " It was the intention of the statute to abolish entirely the rule iu Shelley's case." It was only where the word 'heirs' or ' heirs of the body' were used, that the technical language employed necessarily defeated the obvious intent of the testator; and, therefore, the statute provides only for cases of that character. Where other words were employed by the testator, though of similar meaning, their construction was governed by the inten- ' 1 Prest. on Est. 263, 419 ; 4 Kent's Com. 215, 2d ed. ' Buroliett v. Durant, 2 Vent. 311 ; Carth. 164, S. C. ; 4 Kent's Com. 221. " Hargrave's Law Tracts, 489. « 4 Kent's Com. 230. ' Kev. Notes, 2 R. S., 2d ed., 575. [235] CHAP. SVII.]^ C0BTBSY. [§ 473 tion of the testator as gathered from the whole instrument and the facts of the case. § 471. "The word 'issue' may be a word of purchase or of limitation, as will best suit the intention of the testator.' Chan- cellor Walworth says, in Schoonmaker v. Sheely,^ ' The word children, in its primary and natural sense, is always a word of purchase, and not a word of limitation; and the word "issiie" is very frequently a word of purchase also. But heirs and heirs of the body are, in their natural and primary sense, words of limitation and not of purchase.' The devise in this case is not to those who would take as a class, by descent, but to such of them as should be living at the time of their mother, and as should have attained, or should thereafter attain, the age of twenty-one years. It is only a description of the persons suc- ceeding to the estate. § 472. " I think it is apparent, from all the clauses under con- sideration, as well as from the whole will and the circumstances surrounding the testator at the time of its execution, that he intended only a life estate to Mrs. Taylor, with remainder to such of her children as should survive her, and should have attained, or should after her decease attain the age of twenty- one years. The words used, in their usual sense, are words of purchase and not of limitation. The testator intended to give the property to a part only of Mrs. Taylor's children, viz., to such as should survive her, and should become of full age. He devised the property to Mrs. Taylor's sole and separate use; she was evidently to have the use of it for life, for it was only given to such as should survive her. § 473. " Was the remainder to the children vested or contin- gent? The statute has provided the definition of these words by which we are to be governed. Estates are vested when there is a person in being who would have an immediate right upon the possession of the lands upon the ceasing of the intermediate ■ 8 Petersd. Abr. 186, and oases there cited ; 5 T. R. 308 ; 1 Lord. Eaym. 207. ^ 3 Denio, 490. [236] § 475] CURTESY. [chap. XVII. or precedent estate. They are contingent whilst the person to •whom, or the event upon which they are limited to take effect, remains uncertain.^ § 474. " Although the five children of Mrs. Taylor were in being at the time of the death of the testator, yet none of them would have had an immediate right to the possession of the ,lands on the termination of Mrs. Taylor's life estate. That right depended on the additional contingency of their arriving at twenty-one years of age. In the language of the statute, the event upon which it was limited to take effect remained uncer- tain. The estate did not vest in the children on the death of the testator. It went only to those who survived their mother and became of age. If one of them became twenty-one years of age, he would still have no title, unless he was living at the decease of his mother ; and if, after attaining twenty-one years of age, he married and died before his mother, leaving issue, his issue could not inherit. The remainder to the children was not therefore vested, but contingent. § 475. " Assuming this contingent remainder to be valid, it may be asked where did the estate vest intermediate to the death of Mrs. Taylor, and the time when her eldest son became of age? that is to say, from July, 1846, to the 2d of May, 1847. If this is not provided for in the will, the property descended in the mean time to the heirs at law, liable to be divested on the happening of the contingency upon which the remainder depended. In a subsequent part of the will, it is provided that if Mrs. Taylor shall die, the testator's wife surviving, and shall not leave any lawful issue, child or children, who shall have attained or thereafter attain the age of twenty-one years, (fee, the property shall go to his wife, and to her heirs and assigns forever. If this devise is valid, and if it was vested under the definition above given, the property, after the death of Mrs. Taylor, vested in her mother, Mrs. Dickinson, liable to be divested on the contingency of Mrs. Taylor's children, or any one of them, attaining the age of twenty-one years, and con- « 1 R. S. 723, § 13 ; Hanley v. Jamea, 5 Paige, 466. [237] CHAP. XVII.] C0ETESY. [§ 476 tinued thus in Mrs. Dickinson till her death, on the 12th of January, 1847, when it vested in the heirs at law, viz., in all the children of Mrs. Taylor, subject to be defeated by the same contingency. That when that contingency occurred, on the 22d of May, 1847, by John D. Taylor coming of age, the re- mainder vested in him, subject to be divested so far as to let in to their shares respectively such of the other children of Mrs. Taylor as should attain the age of twenty-one. But it is unne-. cessary to decide whether the estate after the death of Mrs. Taylor vested in Mrs. Dickinson till her death, or whether it vested in the heirs of the testator during the whole time from the death of Mrs. Taylor till her eldest son became of age. It is well settled that when no provision is made in the will, the property descends to the heir at law until the vesting of the contingent estate.' § 476. " I have thus far examined the interests of the parties as they apparently exist, according to the terms of the will. But it is insisted that the future contingent devise is void, on the ground that it violates the statute against perpetuities. The Eevised Statutes' declare every future estate shall be void in its creation, which shall suspend the absolute power of aliena- tion for a longer period than is prescribed in that article ; and further declares such power of alienation suspended, when there are no persons in being by whom an absolute fee in possession can be conveyed. The next section provides that the absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the con- tinuance of not more than two lives in being at the creation of the estate. "Here was a devise to Mrs. Taylor for life, remainder to such of her children as should be living at her death, and should have attained the age of twenty-one, or should thereafter be- come twenty-one years of age ; and though no more should be afterwards born, the estate might remain contingent until the expiration of the minority of the youngest child. The estate was thus limited on Mrs. Taylor's life and five minorities, and during such limitation the estate was inalienable. It is unne- ' Jackson v. Winne, 7 Wend. 47. ^1 K. S. 723, ? 14. [238] § 478] CURTESY. [CHAP. XVII. oessary to discuss the construction of the statute prohibiting perpetuities. This has been very elaborately performed, and the rule established in several reported cases. The limitation must be measured by lives only, or by some term that cannot exceed the measure of two lives in being.^ § 477. "In Hawley v. James, the court, for the correction of errors, decided that a limitatioii 'until the youngest of a testa- tor's children and grandchildren, attaining the age of twenty- one years, shall have attained that age,' when the number ex- ceeds two, is void as suspending the power of an alienation of an absolute fee in possession for more than two lives in being. The principle decided in Hawley v. James is precisely appli- cable to the case now before us, and it is only necessary to refer to it to show that the remainder to the children of Mrs. Taylor is a violation of the statute. A limitation upon minorities is virtually a limitation upon lives. If two of the lives terminate before all attain majority, then the estate, having been held for two lives, its further continuance during the residue of the minorities extends it beyond two lives, and the whole limitation is void. It is no answer to say that the estate might terminate during the life of Mrs. Taylor, by the death of all her children. The possibility that the estate may extend beyond the limits allowed vitiates it ah initio? The estate must, by the terms of its creation, be restricted within the required limit, or it is void. There is no exception to the fule established by §§ 14 and 15 of the statute, except that stated in § 16, and that is inappli- cable to this case. " I am clearly of the opinion, therefore, that the contingent remainder to the children of Mrs. Taylor is void. The legal consequence is that, as to the moiety of the estate thus disposed of, it descended to Mrs. Taylor as heir at law of the testator, and united with her life estate. § 478. "It was suggested on the argument that the devise we have been considering might be a joint devise to Mrs. Taylor ' Hawley v. James, 16 Wend. 61 ; Gott v. Cook, 7 Paige, 521 ; S. C. 24 ; Wend. 641 ; 14 Id. 265 ; 18 Id. 257 ; 1 Barb. Ch. Rep. 18. 2 16 Wend. 121 ; 4 Cruise, 449 ; 4 Kent, 283 ; 2 Burr, 873. [239] CHAP. XTII.] CURTESY. [§ 479 and her children.' But there is nothing in the language em- ployed to require such a construction, and I have already stated several reasons why I think it was not so intended. I do not see how Mrs. Taylor could take jointly with her children, when the property could not vest in the children till after her death. Other provisions in the will show that it was not the intention of the testator to devise the property jointly to Mrs. Taylor and her children. In the third devise of the fourth clause, the moiety devised for life to Mrs. Dickinson was given after her death to Mrs. Taylor, if living, and if not, then to the same children designated, as in the other devise. But if the devise was joint, the power of alienation was suspended for the same length of time as if the devise was to Mrs. Taylor for life, re- mainder to the children ; because, if the devise was joint, the extent of interest in such of the devisees would be changing and contingent until the youngest child should become of age. The absolute power of alienation would be, therefore, suspended for a longer time than is allowed by statute, and the devise consequently void, so that the property would, as in the other case, descend to Mrs. Taylor as heir at law. § 479. " I proceed next to consider the other moiety of the estate. This by the third clause of the will was devised to Mrs. Dickinson for life; and by the third devise of the fourth clause was disposed of as follows : ' But in case my said wife, Ann Eliza, shall be living at the time of my death, and shall die, my said daughter Julia Maria surviving, or any of my said daughter's children who shall have attained, or shall there- after attain, the age of twenty-one years, surviving my said wife, I do then, and in such case, give, devise, and bequeath to my said daughter, Julia Maria, if living at the time of the death of my said wife, or in case of her death, then to such her child or children as shall be living at the time of the death of my said wife, or at the death of my said daughter, and shall then have attained, or shall thereafter attain, the age of twenty-one years, her, his, or their heirs and assigns, all and singular the real and personal property hereinbefore devised to my said wife for and during her natural life.' Oules V. Jaokson, 2 Strange, 172 ; Co. Litt. 9, 188 ; PoUexf. 373. [240] I 481] CURTESY. [CHAP. XVII. § 480. " This is still more plainly, if possible, a violation of the statute prohibiting perpetuities. It is a devise for life to Mrs. Dickinson, then to her daughter, Mrs. Taylor, and then remain- der to such of the children of the latter as should attain ma- jority. It is not only a limitation for two lives, but for five minorities in addition. In other words, it is a limitation for seven lives. It is no answer to say that Mrs. Taylor died before Mrs. Dickinson. It might have been otherwise ; and the validity of the devise must be determined from its terms, and without reference to contingencies. But if this devise be re- garded only as a limitation for life to Mrs. Dickinson, with remainder for life to such of the children of Mrs. Taylor as should attain majority, it Would still be void for the reasons above stated in considering the first devise of the fourth clause. Then both devises would stand upon the same footing. The consequence is, that this moiety of the estate, at the death of the testator, also descended to Mrs. Taylor, as heir at law, sub- ject to the life estate of Mrs. Dickinson. § 481. " The plaintiff claims that as husband of Mrs. Taylor he is entitled to a life estate, as tenant by the curtesy, in all the real estate left by the testator. Four things are necessary to an estate by the curtesy, viz., marriage, actual seizure of the wife, issue, and death of the wife. The only question here is, whether there was such a seizure of the wife as will support the plaintiff's claim. " I have already shown that one moiety of the real estate was devised to Mrs. Dickinson for life, and the remainders being void, it descended to Mrs. Taylor as sole heir at law, subject to such life estate. Mrs. Taylor died before the termination of the life estate. To entitle the husband to his curtesy, the wife must be seised in fact and in deed; it is not sufficient that she has a seisin in law of an estate of inheritance.' It has been accord- ingly held, that if there be an outstanding estate for life the husband cannot be tenant by the curtesy of the wife's estate, in reversion or remainder, unless the particular estate be ended ' 4 Kent's Com. 29 ; Jackson v. Jackson, 5 Cowen, 74, 98 ; Bates v. Shralder, 13 John. 260 ; Jackson v. Hilton, 16 Id. 96. If) [241] CHAP. XVII.J CURTESY. [§ ^83 during the coverture.' There can be no seisin in fact of a vested remainder limited on a precedent freehold estate.''^ In the case last cited the chancellor reviewed the case ot J3ear V. Snyder,^ where a different opinion has been held. § 482. As to the moiety of the real estate which was devised to Mrs. Dickinson for life, the life estate not having ended till after the coverture was terminated by the death of Mrs. Taylor, the plaintiff is not tenant by the curtesy; but the children of Mrs. Taylor take it free from such incumbrance. With regard to the other moiety of real estate left by the tes- tator, Mrs. Taylor was in fact seised of it during the coverture. The life estate devised to her by the testator was merged in the greater estate which she took as heir at law. Such is the legal effect of the uniting of the particular estate and the immediate reversion in the same person.'' The plaintiff has, therefore, a life estate as tenant by the curtesy in that moiety of the real estate. § 483. The devises over are equally void as to the personal property. The absolute ownership of personal property cannot be suspended by any limitation or condition whatever, for a longer period than during the continuance, and until the termi- nation of not more than two lives in being at the death of the testator.' The plaintiff, therefore, as administrator of his wife, is entitled to one-half of the personal estate from the time of the death of his wife.° The plaintiff is entitled to an account of all the personal property to which his wife was entitled as next of kin to the testator. There must, therefore, be a decree declaring and adjudging ' Co. Litt. 29 ; De Grey v. Rioliardson, 3 Atk. 469 ; 4 Kent's Com. 29. » 1 Co. Litt. 32 ; Cruise's Dig. oh. 2, tit. §§ 12-16 ; Blood v. Blood, 23 Pick. 80 ; 7 Mass. Rep. 253 ; 8 N. Hamp. Rep. 240 ; 5 Id. 469 ; Green v. Putnam, 1 Bart. Sup. C. Rep. 506 ; Durham v. Osborne, 1 Paige, 634 ; Reynolds v. Rey- nolds, 5 Id. 161 ; Matter of Cregier, 1 Barb. Ch. Rep. 598. 3 11 Wend. 592. * 4 Kent's Com. 99, 100 ; 3 Preston on Cont. 182, 261. " 1 R. S. 773, §§ 1, 2 ; Rathbone v. Dyckman, 3 Paige, 30 ; Harman v. Os- borne, 4 Id. 342. 15 2 R. S, 75, § 23 ; Id. 98, § 70 ; 2 Kent's Com. 135 ; 6 John. 112 ; 7 John Ch. 229. [ 242 ] § 485] CURTESY. [CHAP. XVH. the rights of the parties in accordance with the above conclu- sions.' §484. Where a testator devised to "Mary Baker Didlake and her children" a tract of land, at the time of the devise the said Mary was an infant ; she subsequently married and had one child. Held: That Mary B. Didlake took an estate for life, and the child the remainder.^ It is stated in Powell on Devises, 404, as a rule of construc- tion in England, that where lands are devised to a person and his children, and he has no children at the time of the devise, the parent takes an estate tail. By our law an estate tail is converted into a fee simple, so that this rule of construction would give to Mary Baker Didlake an absolute fee in the land; and any children which she might thereafter have would be cut off, and could take no interest in the devise. The English rule of construction was adopted in order to effectuate the intention of the testator. § 485. For, as it is said, " the intent is manifest and certain that the children should take, and as immediate devisees they cannot take, because they are not in rerum naiura, and by way of remainder they cannot take, for that was not his intent, for the gift is immediate, and therefore such words shall be taken as words of limitation." Now, although the words abstractly and literally import an immediate gift, not only to the devisee in esse, but to his or her children also; yet if there be no child- ren at the time, does it necessarily follow, as seems to have been supposed, that it was not the testator's intent that the children should take by way of remainder ? We think not. But what- ever may have been the legitimacy of such a conclusion in England, where in general more precision and particularity were observed in the creation of remainders than in the United States, we are of opinion that with us it does not necessarily follow that because the words literally and abstractly import an immediate gift, it was not the intention of the testator to give a ' Taylor v. Gould, 10 Barb. Rep. 389, 402. 2 Carr & Wife v. Estill, 16 B. Monroe, 309, 312. [243] CHAP. XVII.] CUETEST. [§ 487 remainder interest to the children. In general, the word "child, ran" is a word of purchase and not of limitation. § 486. And as it was acknowledged by the jurists of England that the word, in its present connection, manifested a certain intent, on the part of the testator, that the children should take under the devise, and as they would do so there, if the word were construed to be a word of limitation and not a word of purchase, it was natural and easy for the English judges to make an exception to the general acceptation of the words, and so construe it as to render the estate devised an estate tail ; and as this was a convenient mode of giving effect to the intention of the testator, the courts of England adopted it without, per- haps, bestowing much consideration on the question, whether the testator might not have intended to give a life estate to the person in esse, remainder to the children, which might equally have effected his intention. However this may be, it is clear that they adopted their rule of construction to promote the in- tention of the testator. And our law having converted estates tail into absolute fee simple estates, it is equally clear that if we adopt the same rule of construction the acknowledged intention will be defeated, as the children could then take nothing under the devise. In order, therefore, to effectuate the acknowledged and manifest intent of the testator, it is obvious that a different rule of construction must be resorted to. § 487. It has been observed that the words of the devise abstractly and literally import an immediate gift, not only to the devisee in being, but to those not in being. But there being no children in esse at the time of the devise, it could not have been the intention to give an immediate estate to them, for that were impossible. And as the words of the devise, as conceded by all the authorities, manifest a clear intent that the children shall take, the only consistent and rational construc- tion is that the testator intended the devisee in being at the time should take a life estate, with remainder to the children. A slight change in the phraseology of the devise will manifest the propriety of this construction. Suppose the testator had used the words, "To Mary Baker Didlake and the children she may bear" (which was obviously his meaning), would it not be [244] § 488] CURTESY. [CHAP. SVII. clear that, as there were no children in being at the time, and might not be at his death, he intended to invest an immediate estate in Mary B. Didlake, and a future one in her children. § 488. It necessarily results that, as the children must take under the devise, if efiect is given to the intent, and as it is impossible for them to do so in presenti, they must take it in futuro. The reason of the English rule of construction failing in this case, the rule itself must fail, and the necessity is imposed upon us of resorting to a different mode of construction to carry out the intention of the testator. And the construction which we have given to the words of the devise is rational and natural. The mother, and also the children she might have, being objects of the testator's bounty, and there being no children in esse at the time of the devise, who could take jointly with the mother, according to the literal import of the devise, we conclude that the intent was to give the mother a life estate, and the remainder to the children. Wherefore the judgment is affirmed. [245] CHAP. XVIIL] DOWEE. [§ 491 CHAPTBK XVIII. DOWEE. §489. In Denton w. Nanny,' it is said: "Dower is a title inchoate, and not consummate until tlie death of the husband ; but it is an interest which attaches on the land as soon as there is a concurrence of marriage and seisin."^ Dower is highly favored in equity; and as was said by the Master of the Eolls (Sir Thomas Trevor) on one occasion : " The right that a dow- eress has to her dower is not only a legal right, and so adjudged in law, but it is also a moral right to be provided for and have a maintenance and sustenance out of her husband's estate to live upon. She is, therefore, in the care of the law, and a favorite of the law. And upon this moral right is the law of England founded, as to the claim of dower."^ § 490. A mortgage is a chattel interest — a mere security for the payment of the debt ; and when the debt is paid, the lien of the mortgage is discharged. The estate of the mortgagor, before foreclosure or entry, is not the subject of seizure and sale by execution, even though there had been a default and the condition forfeited.'' The equity of redemption— the estate of the mortgagor— is the real and beneficial estate, descendible by inheritance, devi-. sable by will, and alienable by deed, in all respects, as if it were an absolute estate of inheritance at law.' § 491. The mortgagor is regarded as seised before foreclosure ' 8 Barbour, 620-627. ^ 4 Kent's Com. 50. » Story's Equity, § 629, and note 1; Bullard v. Briggs, 7 Pickering, 533; and Petty v. Petty, 4 B. Monroe, Ky. Rep. ' 4 Kent's Com. 151 ; 4 John Rep. 41 ; lb. sec. 489. ° 1 Caine's Cases in Error, 47. [246] § 493] DOWER. [CHAP. XVIII. and entry, so as to entitle the widow to her dower.' The widow of a person purchasing of a mortgagor, subject to the mortgage, may recover dower of the purchaser under the husband, who cannot set up the mortgage as a subsisting title, there having been no entry or foreclosure under it." So also when a person seised of land in fee mortgages it and afterwards marries, his widow is entitled to dower out of the equity of redemption, against the purchaser of that equity, though the mortgage be still subsisting.' § 492. A feme covert who joins with her husband in the mortgage of lands of which he is seised, is nevertheless entitled to dower in the equity of redemption ; subject, however, to a ratable contribution as doweress for the redemption of the mortgage. And where the heir has redeemed, she is to contri- bute during her life to the heir for one-third of the interest on the amount paid to redeem." The remedy for dower against a mortgagee in any case, or those claiming under him, is in a court of equity.' § 493. I find it nowhere expressly adjudged that the wife is a necessary party to a bill of foreclosure, in order to extinguish her inchoate right of dower ; but it is the universal practice of the profession to make the wife a party for that purpose. The late Chancellor Walworth, in Bell v. The Mayor of New York,° says: "It is not necessary to decide what would be the effect of an actual foreclosure and sale of the equity of redemption during the lifetime of the husband, under a decree to which the wife was not made a partyT But the late Vice Chancellor • Euggles, of the Second Circuit, in an opinion delivered in the same case, declares it to be the better opinion that a purchaser under a decree where the wife was not made a party, would take the estate subject to her dower in the equity of redemp- tion, should she survive her husband. ' 6 John. Rep. 290. 2 7 John. Rep. 278 ; ib. sec. 489. 3 15 John. Rep. 319. ' 4 Kent's Com. 46 ; 5 John. Ch. Rep. 482 ; 19 Wend. 162. s 7 Greenl. 41, 43, 102; 3 Pick. 475 ; 14 id. 98; 19 Wend. 174. ' 10 Paige, 67. [247] CHAP. XYIII.] • DOWER. [§ 496 § 494. The 164tli section of the act, in regard to bills for the foreclosure and satisfaction of mortgages, provides in substance that "the Master's deed shall vest in the purchaser the same estate, and no other or greater than would have vested in the mortgagee if the equity of redemption had been foreclosed ; and such deeds shall be as valid as if the same were executed by the mortgagor and mortgagee, and shall be an entire bar against each of them, and against all parties to the suit in which the decree for such sale was made." The wife is neither the mortgagor nor the mortgagee ; and unless she is a party to the suit, it is difficult to see how the language of the act can be applied to her. In regard to so much of the section as makes the Master's deed as effectual as if it were executed by the mortgagor and mortgagee, it is settled by the case of Swaine v. Perrine' that the release of the equity of redemption, not exe- cuted by the wife, is no bar to her claim for dower.^ . ' § 495. The 16th section of the New York statute, in relation to dower, provides that "no act, or deed, or conveyance by the husband, without the assent of the wife, evidenced by her ac- knowledgment thereof, in the manner required by law to pass the estate of a married woman, and no judgment or decree con- fessed by or recovered against him, shall prejudice the right of the wife to her dower, or preclude her from the recovery thereof." A sale also of the equity of redemption, when the mortgage was executed by the husband and wife, under an execution at law against the husband, leaves the wife's interest untouched, and the purchaser takes the land subject to her dower.^ § 496. If it be conceded, as I think it must be, that the wife who executes the mortgage with her husband has the right to redeem; and if no act or deed of his, or judgment or decree confessed or recovered against him can prejudice this right, how can a decree of foreclosure in a suit to which she is an entire stranger do anything of the kind'/ If her right of redemption ' 5 John. Ch. Rep. 482. ^ Vide also 4 Kent's Com. 44 ; see Petty v. Petty, 4 B. Monroe. ' 4 Kent, 45 ; 2 Halstead, 39 ; 17 Mass. Rep. 556. [248] § 497] DOWEE. [chap. XVIII. can be foreclosed by a proceeding to which she is not a party, that is, by a decree or judgment against her husband, then a decree or judgment against her husband is made to do what the 16th section of the act in relation to dower declares it shall not do. If we look into the analogous ease of proceedings in parti- tion, where the wife's "inchoate right of dower is extinguished by operation of law, it is settled that where the wife is made a party a purchaser under the decree will be protected against her claim for dower should she survive her husband.^ This case, it is true, does not assert in express words that the pur- chaser would not be protected if she was not made a party, but that result is the necessary and legitimate deduction from the case as it is reported. § 497. The authorities quoted lead to the following conclu- sions: 1st. That dower is an interest in land which attaches upon the concurrence of marriage and seisin. 2d. That the equity of redemption in mortgaged premises, before entry or foreclosure, is equivalent to the estate in fee, descendible by in- heritance, devisable by will, and alienable by deed. 3d. That a widow is entitled to dower in an equity of redemption as well when the mortgage was executed before marriage as when it was executed by the husband and wife during coverture. 4th. That a widow, as against the mortgagee and those claim- ing under him, is entitled in equity to redeem upon payment of the mortgage debt. 5th. That no act, deed, or conveyance of the husband, or judgment, or decree, confessed by or reco- vered against him, shall prejudice the wife's right to her dower. 6th. That the master's deed upon a sale under a decree of fore- closure shall have the same force, and no greater, as a deed executed by the mortgagor and mortgagee, and shall be a bar against such persons only as mere parties to the suit. 7th. That a purchaser under a decree of foreclosure and sale in equity, in the lifetime of the husband, where the wife is not made a party, takes the estate subject to her equity of redemp- tion. That to bar her right to redeem, she is a necessary party. 8th. That surplus moneys upon mortgage sales are in court for ' Jackson v. Edwards, 7 Paige, 386. [249] CHAP. XVIII.J DOWEK. [§ ^99 the use of the defendants, and such other persons as may be entitled thereto. § 498. If the wife is a necessary party to a foreclosure suit, in order to discharge the estate in the hands of the purchaser under the decree from her right to redeem, she becomes so be- cause she has a valid subsisting legal interest in the subject- matter of the suit, which the court is bound to protect. Judge Story, in his Equity Pleadings, remarks: "That courts of equity adopt two leading principles for determining the proper parties to a suit. One of them is a principle admitted in all courts upon questions affecting the suitor's person and liberty, as well as his property. Namely, that the rights of no man shall be finally decided in a court of justice unless he be present himself, or at least until he has had a full opportunity to appear and vindicate his rights. The other is, that when a decision is made upon any particular subject-matter the rights of all persons whose interests are immediately connected with that decision, and affected by it, shall be provided for as far as reasonably may be.''^ Now it is impossible to say that the interests of a married woman who unites with her husband in a mortgage to secure his debts, and who, if she survives him, will be entitled to dower in the estate, after the payment of the debt, is not con- nected with or affected by proceedings which aim to deprive her of that right. Nor is it possible to say that such proceed- ings, when consummated, will not affect her rights in the very sense spoken of by the learned commentator. She is, therefore) a necessary party to the end that the court may provide for and protect those rights as far as reasonably may be. § 499. It would afford her no protection to require her to pay the mortgage debt or be barred of all her interest in the mortgaged premises. This rule is so rigorous and oppressive that courts of equity will not usually apply it to the mortgagor himself. If he fails to pay, they sell the premises mortgaged, and are careful to preserve all his rights in the surplus money. Are not the equities of the wife as strong as those of the hus- ' Story's Equity PI. 73. [250] § 500] DOWEE. [CHAP. 2VIII. band? During coverture she is often without the means, and, therefore, without the ability to pay the mortgage debt. And the only real protection which the court can extend to her, when the husband cannot or will not pay, is to give her the same right in the surplus proceeds after the satisfaction of the mortgage, as she had in the mortgaged premises before the mortgage was executed. If the judgment creditors may take the surplus, so may the husband. Their rights as against the wife are no greater than his; and if the whole surplus is to be handed over to them, then a husband, with ample means at his command, may suffer a foreclosure and sale when the pre- mises are oftentimes of greater value than the mortgage debt, for the express purpose of freeing the estate from the first claims of the wife. What, then, becomes of the moral law spoken of by learned commentators and eminent judges on which the law of dower is founded ? Of the rule that dower is highly favored in equity, and that the doweress is in the care of the law and a favorite of the law? § 500. To say that the wife is a necessary party to a bill of foreclosure in order to perfect the title, and at the same time deny her any interest in the surplus after the mortgage is satis- fied, is to repudiate the principles established by the courts to determine who the necessary parties are. The mortgage in the present case was not for purchase money. It was to secure the debt of the husband, and the amount of that debt was not equal to one-third of the value of the property mortgaged. The wife pledged her interest in the land upon condition that when the debt was paid the lien should cease. To use the language of Chancellor Kent, in Titus v. Neilson :' "Suppose the land could have been sold in parcels, and the directions in the decree had been to have sold only one parcel of the mortgaged premises, sufficient to have satisfied the debt, she would have been most clearly entitled to her dower in the residue of the land in pre- ference to the claims of the second mortgage in which she did not join." ' 5 Johns. Ch. Rep. 452. [251 J CHAP. XVIII.] DOWEK. [§ 502 The claancellor then proceeds to say that her rights must be of a more stable character than to depend upon a circumstance resting so entirely in discretion as the mode adopted for satis- fying the mortgage. In the present case, the lauds were not sold in parcels. Had sufficient only been sold to pay the debt, more than two-thirds of the premises would have remained sub- ject to the contingent dower of the wife. That the premises may possibly have been so situated that a sale of a part could not be made, without prejudice to the whole, cannot change the principle. For, if her rights have been made to yield to con- siderations of benefit to others, her equity to follow the money into court becomes so much the stronger. § 501. Land has been sold in which the wife had a legal in- terest which was not required to pay the mortgage debt. And upon the principle of equitable conversion the proceeds, so far as it respects her, must still be regarded as real estate. The claim of the judgment creditors rests upon the same foundation. Their interest in the land, like the interest of the wife, has been diverted by the sale under the decree, and their liens attach in equity upon the proceeds of the land unnecessarily sold, in the same order of priority as they existed uj)on the land before sale. Where the lands of a testator have been sold for the payment of his debts on account of the deficiency of the personal estate, which is primarily liable,, and personal assets afterwards come into the hands of the executors, which should have been de- voted to that object, the devisees or owners of the land are ex- clusively entitled to such personal assets as a substitute for the land. And although such devisees or owners, as between their heirs and personal representatives, take such assets as money and not as land, still they take them upon the equitable doctrine that they are substituted for, and should supply the place of the lands converted into money.' § 502. There is no difference between the claims of the wife to have the surplus substituted for the lands sold, and the claim of the devisees or owriers to have the personal assets which I 3 Barbour's Ch. Eep. 169 ; 2 Story's Eq. Jur. § 790, note 2. [252] § 504] DOWER. [chap. XVIII'. afterwards came to the hands of the executors substituted in place of the lands sold and applied in payment of the debts. The owners and devisees have a present interest, which is vested, it is true, and the interest of the wife is contingent, but both interests attach upon the land, and are equally worthy of the care and protection of the courts. The equities in the one case are as strong as they are in the other. § 503. Chancellor Walworth, in Jackson v. Edwards,' says : " Although a husband has a present interest in his wife's real estate from the time of the marriage for the joint lives of him- self and his wife, he is not even tenant by the curtesy initiate so as to give him the estate for his own life until issue born.^ It never has been doubted that a sale in partition to which he was a party would have the effect not only to divest his present estate in the property during the joint lives of both, but also to bar his contingent interest for the remainder of his life, after the death of his wife, in case he should have issue and survive her- Yet I have not been able to find any provision in the Eevised Statutes which can reach such a case which is not equally ap- plicable to the wife's inchoate right of dower in the husband's estate." § 504. Jackson v. Edwards' was a case in partition ; and the chancellor proceeds to say that the sections of the Eevised Sta- tutes relative to estates for life, in curtesy or dower,"* do not in terms apply to the cases of the contingent interests of the hus- band and wife, and he states the means which the court will take to ascertain the probable value of the wife's contingent dower, and to have it invested for her benefit. The reasons he employs apply with the same force to the surplus proceeds in foreclosure as in partition suits; and if there be any distinction between the two classes of cases it is difficult to see in what it consists. Titus v. Neilson' was a case where the wife had joined with her husband and was a party to the suit, but he died after the decree, but before an actual sale. It was adjudged that the 7 Paige, 386. » 2 R. S. 325, §§ 50, 51, 52. Oldham v. Turner, 5 Dana. ^ 5 John. Ch. Rep. 452. 7 Paige, 386. [253] CHAP. XYIII.] DOWEB. [§ 506 widow was entitled to dower in the surplus proceeds, and this was the only question. Chancellor Kent says, in a parenthesis: " It is clear she would have had no claim upon the proceeds after satisfaction of the mortgage if the husband had been living." And this observation is relied upon in the present case against the wife. That the wife would have had no present claim, had the husband been living, was, probably, all the chancellor meant to say ; for those who knew the care he habitually bestowed upon questions directly submitted to him for adjudication must know that he could not mean thus summarily to dispose of the wife's equities without argument or examination. The expres- sion, therefore, is not entitled to the weight of authority. § 505. Bell V. The Mayor of New York^ was first heard be- fore the Vice-Chancellor of the Second Circuit. The vice-chan- cellor, in his opinion,^ says : "That upon a sale under a power in the lifetime of the husband the surplus is regarded as per- sonal property, and may be paid to the husband ; and upon a chancery sale the husband is entitled to the surplus moneys, and no provision is made for the wife." In support of this opinion, he quotes Titus v. Neilson, to which I have also referred, and Wright v. Rose.' In this last case the mortgagor never was married. This in- terest was sold under the power after his death. And this court determined that upon a sale in the lifetime of the mortgagor the surplus is personal estate, and goes to the personal repre- sentatives, and upon a sale after the death of the mortgagor the surplus goes to the heir at law. Such also was the decision of the assistant vice-chancellor in Graham v. Dickinson.^ § 506. These cases determine nothing with regard to the wife. The character of the fund as between her and the judgment creditors, and the power and duty of the court in regard to its disposition, is not spoken of or even alluded to. It will be seen that, so far as we are to be guided by precedent, the claims of the judgment creditors stand upon a very narrow foundation; and that upon reason and analogy the case is clearly in favor 10 Paige, 55. 3 2 Sim & Sti-i. 323, 1 Eng. Ch. Rep. Ibid. ■• 3 Barbour's Ch. Rep. 178. [254 J § 508] DOWEE. [chap, xviit, of the wife. She does not ask to have the money put into her immediate possession. She would have no right to that ; but she insists that the residuum of the subject mortgaged, not re- quired to satisfy the mortgage debt, whether it exists in lands unsold or in the proceeds of land sold under the power of the court, shall be so appropriated as to secure her dower should she survive her husband. This, I think, she is entitled to have done. In bringing the rights of the wife within the influence of those equities which the courts are constantly extending to others, no injustice is done to the husband or to his judgment creditors; for, after providing a security for the wife, they have the same rights in the surplus as they had in the lands before the sale under the mortgage.' § 507. By the common law the widow was entitled to dower in those lands only to which he may have had a legal title at any time during coverture; but, since the law in respect to trusts has been changed by statute, she may have dower where the husband has such an equity at his death as would have authorized the chancellor to decree a specific execution and conveyance of the legal title to him.^ She is not entitled to dower in Kentucky in land where the husband never had any other than an equitable title, and had sold or disposed of that before his death.^ She is entitled to dower where land was conveyed by her husband on the day of her marriage, seisin and coverture being on the same day.'' Where the husband had sold hefwe the day of marriage, by either verbal or written executory contract, but conveyed a legal title by deed to the purchaser after marriage, she was not entitled to dower.* § 508. The husband must have been beneficially seised at his death to entitle to dower; and this principle applies where ' Denton v. Nanhey, 8 Bartour's Ch. Eep. 127-8. ' Bailey & Wife v. Duncan, 4 B. Mon. 268 ; Stephens v. Smith, 4 J. J. Mar- shall, 67 ; Hamilton v. Hughes, 6 J. J. Mars. 582. 3 Hamilton v. Hughes, 6 J. J. Marshall, 582 ; Gully v. Bay, 18 B. Monroe, 113. « Stuart's Lessee v. Stuart, 3 J. J. Marshall, 49. 5 Dean's Heirs v. Mitchell's Heirs, 4 J. J. Mars. 451 ; Oldham v. Sale, 1 B. Mon. 77 ; Gully v. Ray, 18 B. Mon. 113. [255] CHAP. XVIII.] DOWEB. [§ 51 the husband takes a conveyance in fee, and at the same time mortgages the land back to the grantor, or to a third person, to secure the payment of the purchase money. Dower she cannot claim as against rights under that mortgage ; such an instanta- neous passage of the title in and out of him is not a sufficient seisin to entitle the wife to dower as against the mortgagee.' On the other hand, it has been decided by this court, in the cases of Tevis v. Steele," and McClure v. Harris,^ both cases substantially similar to the present, that the husband was bene- ficially seised, and the wife entitled to dower. Those cases establish the doctrine that instantaneous seizure is not per se inconsistent with the claim of dower, but that any beneficial interest in the husband, no matter how slight or fleeting, will create a right of dower; denying it only where the grantee performs the part of a trustee, and is the medium merely through which the interest passes to other persons. The cases were decided upon mature deliberation, and after a careful examination of the conflicting opinions of other courts. We consider the question, therefore, authoritatively settled in favor of the right of dower. § 509. "Where the husband has transferred the equitable title, and afterwards acquires a conveyance, it will be regarded as for the sole purpose of complying with his contract, and in trust ; he cannot resuscitate the equitable title and possession with which he had parted by the sale, and regain such neces- sary beneficial seisin to his own use as is necessary to complete his wife's right to dower.'* § 510. In all cases where the husband is seised of such an estate in lands as that the issue of the wife may inherit, if any she have, as heir to the husband, the widow is entitled to dower. This is supported by various English authorities, cited by the court in the case of Northcott v. Whip.'' ' Gully V. Ray, 18 B. Monroe, 114 ; Gaston's Heirs v. Bates, 4 B. Monroe, 67. 2 4 B. Monroe, 339. » 12 B. Monroe, 266. * Stephens i>. Smith, 4 J. J. Marshall, 67-8 ; Winer v. Elliot, Hardin, 482 ; Heed and Wife v. Fox, 16 B. Mon. 117 ; Lunson v. Morton, 6 Dana, 472. « 12 B. Monroe, Ky. Rep. 73. [256] § 513] DOWER. [CHAP. XVIII. § 511. Where partuers hold real estate property, as part- nership stocks, &c., it is liable in equity to the payment of the debtSi of the firm ; the widows are not entitled to dower until the partnership debts are paid.' The living wife of a surviving partner has no vested interest in real estate held as partnership stock.^ But she will be entitled to dower out of any surplus remain- ing after the payment of the partnership debts ; as in equity it is regarded as held in trust as partnership property, and subject to the rules applicable to partnership property, being first liable to the claims and liens therefor, of the partners upon each other and the debts of the partnership.^ In such case she would be endowed with her interest in the residue, as other cases of heirs, to which she is subject. The right to dower accrues upon the death of the husband, and the wife will be barred by the operation of the statute of limitations if she fails to sue within the time allowed by law.* § 512. Where the husband has conveyed land during cover- ture, the widow is not entitled to back rents, even from the commencement of her suit for dower. It was not until the Parliament of England, by the statute of Merton,' that damages were recoverable in any proceedings by widows to recover dower in the lands of their deceased hus- bands.° But by that statute, which has been in substance re- enacted by the legislatures of this country,' damages are made recoverable by a widow in an action for dower in the land of which the husband died seised. It is true that, according to the literal import of the statute, it would seem that damages are recoverable only in writs of dower unde nihil habet, brought for land of which the husband died seised. § 513. But it requires no great liberality of construction to ' Galbraith v. Gedge, 16 B. Monroe, 634. ' Ibid. 635. 3 Ibid. 634. * Balls V. Hughes, 1 Dana, 407 ; Kinsoberg v. Pierce, 18 B. Monroe, 785. 6 20 H. III. ch. 1. >* Kendall v. Honey, 5 B. Monroe, 283. ' 1 Dig. L. Ky. 444. 17 [257] CHAP, XVIII.] DOWEE, [§ 515 bring suits in equity within the influence of the statute. One great object of the makers of the statute was to enable widows to recover an adequate compensation for the detentio* of their dower in the lands of which their husbands died seised ; and although suits in chancery are not expressly named, yet as courts of equity now possess an acknowledged jurisdiction in cases of dower, it surely cannot be an improper exercise of that jurisdiction to follow the directions of the statute, and decree damages where damages are recoverable in a writ of unde nihil hdbet. If, therefore, the husband of the complainant had died seised of the land, in which she has in this case showed herself to be entitled to dower, we should have no hesitation in saying that the court was correct in decreeing to her compensation for the detention of her dower. § 514. But it is not pretended that the husband of the com- plainant was at the time of his death seised of the land. He had sold and conveyed the land to Kendall, by whom it has ever since been possessed. Was it then correct, in a suit brought to recover dower in lands thus sold and conveyed by the hus- band in his lifetime, to decree compensation to the complainant for the detention of her dower? This question has an answer in the statute to which we have already referred. We have seen that at common law no damages were recoverable for the detention of dower ; and the only change in the common law which has been made by the statute, is to allow damages to be recovered for withholding from widows dower in lands of which their husbands died seised. Such is the construction which has been put upon the statute of England by all jurists and com- mentators who have written on the subject, and such we under- stand to be the ambiguous import of the statute, as re-enacted by the legislature of this country.' § 515. In a suit against a widow, administratrix to her hus- band, to recover a debt due by him, she cannot be charged ' Co. Litt. 32 ; Dyer, 284 ; Bar. Ab. title Dower, J. ; 2 John. R. 119 ; Ken- dall V. Honey, 5 B. Monroe, 283 ; Golden v. Maupin, 2 J. J. Marshall, 241 ; Waters v. Goooh, 6 J. J. Mars. 589 ; Marshall v. Anderson, 1 B. Monroe, 198 ; MoElroy v. Wathen, 3 B. Men. 136 ; Gaston's Heirs v. Bates, 4 B. Men. 369. [258] § 516] DOWEB. [CHAP. SVIII. witli the rent of the house in -which they had lived, and which she occupied or leased out after his death.^ No suit will lie in behalf of the heirs of the doweress, for the rents and profits of a dower estate; the personal representative alone is entitled to the action ; although it is alleged that no will was made or administration granted, the right of action is in the personal representative.^ The widow, to whom a farm is willed during her life, may permit any person to occupy it without paying rent.^ § 516. Stock in a railroad company is real estate, and subject to the widow's dower.* Where a husband dies seised of a ferry, the widow should be endowed of one-third of the profits, or of the use of it for one- third of the time; an allotment of one-fifth of the ferry is nuga- tory, because it is an incorporeal hereditament and indivisible.* The widow is entitled to one-third of the slaves of which her husband died seised, not of one-third of what he may have owned during coverture.* Widow is not entitled to dower in slaves emancipated by the last will and testament of the husband.' The mother is entitled to dower in the real estate of an infant which descends to the father during the coverture ; nor is she barred by having purchased the land of the grandfather of such infant, supposing him to be the heir entitled to the estate.^ A tenant in fee in remainder, who has not been seised, has not such an estate as entitled his widow to dower in the estate.' The widow is entitled for life to one-third of the slaves of which her husband died seised, and absolutely to one-third of the personal estate which remains after payment of debts." ' Roach V. Hubbard, Littell'a Selected Cases, 235. " Coons, &c., V. Nail's Heirs, 4 Littell, 264. ' McCampbell v. McCampbell, 5 LitteU, 94. ' Price V. Price's Heirs, 6 Dana, 107. ^ Stephens' Heirs v. Stephens, 3 Dana, 373. ^ Smiley v. Smiley's Adm'r, 1 Dana, 96. ' Lee V. lee's Executors, 1 Dana, 48. 8 Renfros' Heirs v. Taylor, 12 B. Mon. 466. s Arnold's Heirs v. Arnold's Adm'r, 8 B. Mon. 204 ; Northcutt, &c., v. Whopp, &c., 12 B. Mon. 66. » Trigg's Adm'rs v. Daniel, &c.', 2 Bibb. 301. [259] CHAP. XYIII.] DOWER. [§ 520 § 517. One partner conveyed land to the other in considera- tion of his undertaking to pay the partnership debts, and that he would convey it in trust for that purpose, which he did, and died; the creditors foreclosed and sold the land; the widow shall have dower.^ The widow's right is consummated by the death of the hus- band; the allotment is merely to ascertain the quantity and define the bounds. The heir, or any other one in possession of the land, may make a voluntary assignment of dower.^ § 518. In an allotment of dower, regard should be had to the productiveness as well as value of the parcels of an estate; and a joint right may be assigned as an interest in a will.' After an assignment of dower the widow becomes invested with a right of entry, and, if she marries, that right passes to her husband, and may be sold by him, or subjected to execution for his debts.* § 519. Though a widow may be entitled to dower in the land of her deceased husband on which he resided, yet, until dower be assigned, she has only the right of quarantine, and no such right as may be sold under execution, nor authorizes her to make a lease or maintain an ejectment.' A widow may occupy and take the profits of the mansion house and farm until dower is allotted her, and profits of crop raised by the slaves w^re the husband died after the 1st of March shall be assets in the executor's hands ; where the widow is executor, these profits for the first year are assets.* § 520. In the case of Yartie v. Underwood,' an appeal was made from a decision at a special term on exception to a referee's report. The action was to foreclose a mortgage executed by Underwood and wife to the plaintiff. Upon the sale of the ' Tevis V. Steele, 4 Monroe, 342. ' Stephens' Heirs v. Stephens, 3 Dana, 371. ^ Smith's Heirs v. Smith, 5 Dana, 180. * Williams v. Morgan, 1 Littell, 167. * Shield's Heirs v. Bates, &o., 6 J. J. Marshall, 15. ^ Singleton's Heirs v. Singleton's Executors, 5 Dana, 93. ' 18 Barber, 562. [260] § 522] DOWER. [chap, xviii. mortgaged premises in pursuance of the judgment there were surplus moneys after satisfying the mortgage, which were claimed by the judgment creditors of Underwood, and also by Mrs. Underwood. The whole of the money arising from the sale was ordered to be paid into court in the first instance, and a reference was ordered. The referee was directed to ascertain the rights and priorities of these claimants, and from that por- tion of the fund the mortgage ought to be satisfied. The referee subsequently reported that the bond and mortgage were exe- cuted to secure a debt of the husband, Underwood, which he alone was liable to pay. That of the premises mortgaged, one- sixth part of seventy-five acres belonged to the wife in her own right, and came to her from her father, she having merely joined in the bond and mortgage as surety for her husband. The pro- perty became hers prior to 1848, and the judgments against the husband were all recovered subsequent to that time, and also subsequent to the mortgage. § 521. On this state of facts the referee determined that the mortgage debt should be paid and satisfied out of the entire fund, without reference to the claims of the wife. That after taking out the mortgage debt one-sixth of the remainder should be paid over to Mrs. Underwood in her own right, and one-third of the residue should be invested to secure her contingent right of dower in the premises, and the interest only paid over to the judgment creditors during her life, giving them the residue immediately, and the dower found at her death. Mrs. Under- wood filed exceptions to the report upon the first determination in regard to paying the mortgage, and the creditors excepted to that portion in regard to the rights of Mrs. Underwood. The court, at special term, overruled the exceptions taken by the creditors, and sustained that taken by Mrs. U. in part only. The creditors appealed to the general term. § 522. The court said: "The premises mortgaged were 100 acres of land, and the referee reports that the wife was owner in her own right of one-sixth part of seventy-five acres out of the one hundred acres. "The principle is well settled by authority, that the wife who joins with her husband in a mortgage of her own property to [261] CHAP. XVIII.] DOWEE. [§ 524 secure his debts, or the payment of money loaned to him, is the surety merely of her husband, and is entitled to all the rights and privileges of a surety.' Numerous other cases might be cited. It is contended, on behalf of the creditors, that it must be affirmatively shown by the wife that she did in fact unite in the mortgage as a surety for her husband, and that it was ex- pected and agreed he should pay the debt; and that there was no such proof before the referee. § 523. "No such proof was necessary. It was shown that the debt was due from the husband, and that the mortgage was given to secure it. The money was loaned to him. This esta- blishes the fact that the wife was surety, as was expressly held in Loomer v. Wheelwright (supra). No other proof would be required in any other case, and there is no reason for requiring other proof in favor of the wife. Being a surety, the law pre- sumes that the principal not only agreed to pay the debt, but to indemnify the surety against loss. " Much stress was laid upon the fact that by the terms of the mortgage the surplus is to be paid to the husband, after satis- fying the mortgage debt, and not to the wife, or to them jointly; and it was claimed that this effectually repels all idea that she was or intended to be a surety. The wording of this formal part of the mortgage is not entitled to much weight one way or the other. That direction to the mortgage with reference to the surplus can scarcely be construed into an agreement be- tween husband and wife, by which the latter transfers, or agrees to transfer, her interest to him for the benefit of his creditors generally. The object of the mortgage was to secure the pay- ment of the specific debt, and not to affect the right of the wife beyond that. This exception is not well taken. § 524. " The next exception on behalf of the creditors raises the question whether or not the wife's inchoate right of dower in the husband's land follows the surplus moneys raised by a sale in virtue of the power of sale in the mortgage executed by ' Nienoewietz v. Oahn, 3 Paige, 614, S. C. ; 11 Wend. 312 ; Howley v. Bradford, 9 Paige, 200 ; Fitoli v. Cotlieal, 2 Sand. Ch. 29 ; Loomer v. Wheel- wright, 3 Id. 135. [262] § 526] DOWER. [chap. XVIII. her with her husband, and should be protected against the claims of her husband's creditors. The referee held that it did, and that one-third of the surplus should be invested, and the interest only paid to the creditors during their joint lives. "This follows the decision in Denton v. Nanny.^ Upon this point I shall repose myself on the authority of that case, which is directly in point. I am, moreover, satisfied with the learned and able opinion in that case, and am content to adopt it until it shall be reversed or overruled by the court of dernier resort. § 525. "The exception taken by Mrs. Underwood presents a case of more difiSculty. It is claimed in her behalf that the mortgage debt should be wholly satisfied from the moneys arising from her husband's portion of the premises. This I think is right. The referee reports that the mortgage debt should be satisfied out of the entire fund raised by the sale ; thus the wife is made to pay her portion of the mortgage. In this the referee erred. It is the right of the surety, who has pledged his property with that belonging to the principal, to have the property of the principal first sold and applied. This principle should govern in directing payments after the sale of the property of both. The property of the principal is the primary fund, and must first be exhausted. This would leave the money arising from the sale of the wife's share wholly un- touched by the mortgage debt. § 526. "But does it follow that she is entitled to the whole of it, as against the subsequent creditors of the husband? Cer- tainly not. The husband had an interest in her share, which he could lawfully charge or alien with her consent. The estate came to her before 184:8, and his interest to whatever extent it went had become fixed and vested before the act for the pro- tection of married women was passed. It is not necessarily pertinent to determine what would be the rights of the husband had the property come to her after the acts of 1848 and 1849. Those acts could not affect rights then vested. It does not ap- pear that there is any issue by the marriage ; all that appears 1 8 Bart. 618. [263] CHAP. XYIII.] DOWER. [§ 528 is that they sustained the relation of husband and wife to each other. The husband is not, therefore, a tenant by the curtesy of her estate; but the right to the rents, issues, and profits, during their joint lives, vested in the husband the moment the estate came to the wife. This is a freehold estate which he took jure uxoris, which he could alien, and which judgment creditors could sell.' § 527. "By joining in the mortgage the wife must be taken to have consented to the sale of her portion of the estate, and to its being converted into money ; and that portion of the money which represents the vested interest of the husband in the wife's estate must be regarded as his money. Upon what principle can it be claimed as hers? It is urged that her estate is by these statutes exempted at least from the claims of subsequent creditors of the husband. But the diflBculty is that this portion of the estate was not in tbe wife at the date of the passage of these acts. The law had cast it upon the husband as an inci- dent to the marital relation. It was his property, and remained subject to all the incidents of property in bis hands, both when these acts were passed and the mortgage was executed. § 528. "This property of the husband neither these acts nor any other had exempted from the liens of judgments, or from sale upon executions against him, unless these are to be con- strued as merely exemption acts, like others of that class. The husband could not be divested of his estate by these acts, which bad vested before. And if they were intended to operate to transfer such existing rights from the husband to the wife, to that extent they must, upon well settled principles, be held to be void. There is no doubt that the legislature may pass a valid law, exempting the rents and profits of tbe wife's real estate from future judgments and executions against the hus- band. His title would not in such a case be at all impaired, or his right of voluntary alienation affected ; and if it be conceded that these creditors could not have proceeded and sold the hus- band's interest in the land, it does not follow that they cannot ' 2 Kent, 130, 133. [26i] § 529] DOWER. [chap. XVIII. reach the same interest where it has been voluntarily converted into money, as other personal estate by him. § 529. "I am clearly of opinion that the creditors are entitled to the interest of the money arising from the sale of the one- sixth of the seventy-five acres of land, during the joint lives of the husband and wife, and that the money must be invested, and the interest paid over, unless the wife should prefer to take a gross sum ; in which case a reference must be had to ascertain the value of her claim. It is suggested by counsel that the husband has died since the appeal. If such is the fact, the right of the creditors to this portion of the fund is at an end, and upon filing a stipulation admitting such fact by the counsel for the creditors, the whole is to be paid over to her. Tu other respects the decision at the special term is affirmed." Note. — In Indiana, by the revision of 1852, dower is thereby abolished, and the widow takes one-third absolutely by descent. But the cases of Clem v. Strong, and Franty v. Hanon, presented complaints for dower in lands sold by the husband (with marriage and legal seisin) before the enactment, without their relinc[uishment, and the husband's death, however, after the enactment, where, of course, they could not claim by descent, and by an opinion of the Supreme Court, they were held to be barred. But the court suspended. It would seem that the dower right, though not consummated, was such a potential inchoate vested right as could not be thus barred by such a provision, according to Dash v. Vancleek, 7 Johnson, it being a vested right, and being also a valuable one, according to BuUard v. Briggs, 7 Pickering, 533, and Swaine V. Ferine, 5 Johnson, Chy. Rep., and may be protected before the husband's death by a suit (Petty v. Petty, 4 Ben. Monroe, Ky. Rep.), and that, too, in view of the perspective intent merely of that revision from sections 2 and 4, and also 35. (1 Indiana Rev. Stat, of 1852, page 431.) It was thereby in- tended, in all cases thereafter, to increase the widow's portion from an estate for life, merely, to an estate in fee, inasmuch as during all her life she is not permitted to acquire property for that green old age tending down life's declin- ing steep, and it is the duty of the law — having surrounded her with disa- bility — to make some such provision for her, but not to deprive her of it by recognizing such unconstitutional legislation as in Patten v. Pearce, 7 B. Mon- roe, Ky. Rep., 170. [265] CHAP. XIX.] DOWER.— IN EQUITY. [§ 531 CHAPTER XIX. DOWEE. — IN EQUITY. § 530. A BILL may be maintained to perpetuate testimony as to dower or any other interest, however small in value, whether it be absolute or contingent, and however remote in enjoyment, is sufficient.' And so held in Swain v. Ferine^ and Petty v. Petty,' in each of which cases the bills of the wife were sustained, even before the death of the husband, to declare certain conveyances void, so far as they might deprive her of dower in the lands, in case she should survive her husband. The like jurisdiction and relief were also extended on behalf of the wife, to give her and heirs the fee simple, in fact hers, but for fraud and the release of her husband, which was deemed valid for his life." In the same case, the property having been sold by consent, and the proceeds to be distributed, as the land and title thereto might be settled, on a further supplemental proceeding asserting it to be hers in equity, the Appellate Court of Kentucky, at its October term, 1855, gave the entire value thereof to the wife. § 531. At this day equity is the most appropriate forum for the doweress, affording the most adequate and complete remedy ; having concurrent jurisdiction in all cases. Mr. Justice Story, in his Commentaries,' having reviewed the origin and law thereof," says (§ 625): "There are some cases in which the remedy for dower in equity seems indispensable. At law, if the tenant dies after judgment, and before damages are assessed, the widow loses her dower. And so, if the widow ' 15 Vesey, 136 ; Welford's Equity Pleadings, 140. ' lb. note to sec. 529. 2 5 Johnson's Chy. Rep. 482-8. a 4 B. Monroe, Ky. Eep. 218. * Wallace v. Marshall, 9 B. Monroe. " Vol. i. chapter xii. §§ 624^632, and notes. ' See also Mr. Bright's Husband & Wife, vol., sec. vii. page 419. [266] § 538] DOWER.— IN EQUITY. [OHAP. SIX. herself dies before the damages are assessed, her personal repre- sentatives cannot claim any. But a court of equity will, in such cases, entertain a bill for relief, and decree an account of rents and profits against the respective representatives of the several persons who have been in possession of the estate since the death of the husband ; provided, at the time of filing the bill, the legal right to damages is not gone." § 532. Upon principle there would not seem to be any real diEBculty in maintaining the concurrent jurisdiction in courts of equity in all cases of dower, for a case can scarcely be sup- posed in which the widow may not want either a discovery of the title of dower or of dowable lands; or some impediment to her recovery at law removed ; or the account of mesne profits before the assignment of dower; or a more full ascertainment of the relative values of the dowable lands; and for any of these purposes (independent of cases of accident, mistake, or fraud, or other occasional equities) there seems to be a positive neces- sity for the assistance of a court of equity. And if a court of equity has once a just possession of the cause in point of juris- diction, there seems no reason why it should stop short of giving full relief, instead of turning the doweress round to her ultimate remedy at law, which is often dilatory and always expensive. Dower is favored as well in law as in equity. And the mere circumstance that a discovery of any sort may be wanted to enforce the claim, would, under such circumstances, seem to furnish a sufficient reason why the jurisdiction for recovery should carry the jurisdiction for relief. § 533. Lord Eldon has put the matter in a strong light. After having remarked that he did not know any case in which the heir had claimed merely as heir on account of mesne pro- fits, without stating some impediment to his recovery at law, as that the defendant has the title-deeds necessary to maintain his title, that terms are in the way of his recovery at law, or other legal impediments which do or may probably prevent it, upon which probability, or upon the fact, the court might found its jurisdiction, he proceeded to say : " The case of the doweress is upon a principle somewhat, and not entirely analogous to that of the heir. As indulgence has been allowed to her case [267] CHAP. SIX.] DOWEE. — IN EQUITY, [§ 535 upon the great difficulty of determining, oi priori, whether she could recover at law, ignorant of all the circumstances; and the person against whom she seeks relief, &c., having in his possession all the information necessary to establish her rights. Therefore it is considered unconscientious in him to expose her to all that difficulty, to which, if that information was fairly impaired as conscience and justice require, she could not pos- sibly be exposed." § 534. But the propriety of maintaining a general jurisdiction in equity in matters of dower is still more fully vindicated in a most elaborate opinion of Lord Alvanley, when Master of the Eolls, in a case which now constitutes the pole star of the doc- trine. After adverting to the fact that dower is a mere legal demand, and the widow's remedy is at law, he said : "But then the question comes, whether the widow cannot come either for ■ a discovery of these facts, which may enable her to proceed at law; and on an allegation of impediments thrown in her way in her proceedings at law, this court has not a right to assume a jurisdiction to the extent of giving her relief for her dower; and if the alleged facts are not positively denied, to give her the full assistance of the court, she being in conscience as well as at law entitled to her dower." He then proceeded to state the reasons why the widow should have the assistance of the court by relief as well as by discovery, insisting that the case of the widow is not distinguishable from that of an infant, where the relief would clearly be granted ; and that it would be un- conscientious to turn her round to a suit at law for the recovery of her dower, which must be supposed necessary for her to live upon when she has been compelled to resort to equity for a dis- covery. And he finally concluded by saying that widows labor under so many disadvantages at law that she is fully entitled to every assistance that this court can give her ; not only paving the way for her to establish her right at law, but also by giving complete relief when the right is ascertained. § 535. Dower, as has been already suggested, is highly favored in equity. And as was said by the Master of the Eolls (Sir Thomas Trevor), on one occasion, the right that a doweress has to her dower is not only a legal right, and so adjudged at law, [268] § 537] DOWEE. — IN EQUITY. [OHAP. SIS. but it is also a moral right, to be provided for and harve a main- tenance and sustenance out of her husband's estate to live upon. She is, therefore, in the care of the law, and a favorite of the law; and upon this moral law is the law of England founded as to the right of dower. So much is this the case that the widow will be aided in equity for her dower against a term of years which attends the inheritance, if it is not the case of a purchaser against whom she claims. And if she has recovered her dower against an heir who is an infant, and there is a term to protect the inheritance, which, by the neglect of his guardian, is not pleaded, the term will not be allowed in equity to be set up against her. § 536. Indeed, so highly favored is dower that a bill for dis- covery and relief has been maintained even against a purchaser for a valuable consideration without notice, who is, perhaps, generally as much favored as any one in courts of equity. The ground of maintaining the bill in such a case is, that the suit for dower is upon a legal title and not upon a mere equitable claim, to which only the plea of a purchase for a valuable con- sideration can properly apply. This decision has been often found fault with, and, in some cases, the doctrine of it denied. It has, however, been vindicated with great apparent force upon the following reasoning. It is admitted that dower is a mere legal right, and that a court of equity, in assuming a concurrent jurisdiction with courts of law upon the subject, professedly acts upon the legal right (for dower does not attach upon an equi- table estate). In so acting the court should proceed in analogy to the law, where such a plea of a purchase without notice for a valuable consideration would not be looked at; and, there- fore, as an equitable plea, it should also be inadmissible. § 537. But this analogy will not hold where the widow ap- plies for equitable relief, as for the removal of terms out of her way, &c. In such cases the equitable plea of a purchase for a valuable consideration, without notice, cannot be resisted. In the former case the widow, proceeding upon the concurrent jurisdiction of the court, merely enforces a right which the de fendant cannot at law resist by such a mode of defence. In the latter case she applies to the equity of the court to take away [269] CHAP. XIS.] DO-WES.— IN EQUITY. [§ 539 from him a defence, whicli at law would protect him against her demand, § 538. Other learned minds have arrived at a different con- clusion, and have insisted that upon principle the plea of a purchaser for a valuable consideration, without notice, is a good plea in all cases against a legal as well as an equitable claim, and that dower constitutes no just exception from the doctrine. They put themselves upon the general principle of conscience and equity, upon which such a plea must always stand ; that such a purchaser has an equal right to protection and support as any other claimant ; and that he has a right to say, that having bona fide and honestly paid his money, no person has a right to require him to discover any facts which will show any infirmity in his title. The general correctness of the argument cannot be doubted ; and the only recognized exception seems to be that of dower, if that can be deemed a fixed exception. § 539. Generally speaking, in America fewer cases occur in regard to dower in which the aid of a court of equity is wanted than in England, from the greater simplicity of our titles, and the rareness of family settlements, and the general distribution of property among all the descendants in equal or in nearly equal proportions. Still, however, cases do occur in which a resort to equity is found to be highly convenient, and some- times indispensable. Thus, for instance, if the lands of which dower is sought are undivided, the husband being a tenant in common, and a partition, an account, or a discovery is neces- sary, the remedy in equity is peculiarly appropriate and easy. So where the lands are in the hands of various purchasers, or their relative values are not easily ascertainable, as, for instance, if they have become the site of a flourishing manufacturing establishment, or the right is affected with numerous or con- flicting equities, the jurisdiction of a court of equity is, perhaps, the only adequate remedy.' ' See Story's Equity, chapter "Dower." [270] § 541] DOWER. — LEGAL REMEDY. [CHAP. XX. CHAPTER XX. DOWER. — LEGAL REMEDY. § 540. In "Watera v. Grooch,' and Taylor v. Broderick,? the legal remedy by writ of dower unde nihil, &c., was still recog- nized, as well as the courts therefor, as prescribed in the ancient forms.' The judgment must not be for dower, according to the value of the land at the time it was alienated by the husband, but must be for the value of the same, less the improvements. For if the appellant be a lana fide alienee, and had since his purchase made improvements which enhance the value of the lots, the appellee would be entitled to dower in only so much of the lots thus improved as would be equivalent to one-third of their value at the time of allotment, had there been no meliora- tion. Such seems to be the settled American doctrine." § 541. If the value of the lots has not been increased by such ameliorations, the measure of the appellee's dower would be one-third of each lot as it stands at the time of admeasurement. And such should have been the judgment of the court, unless it has been shown that the value of the lots, or of some one or more of them, is increased by the money or labor of the appel- lant, as a bona fide alienee from the husband of the appellee. When dower was detained from the widow, and she was obliged to bring a writ of dower, she was by the common law entitled to the profits of her third part of the lands from the time only when she recovered, judgment. I 6 J. J. Marshall, 589. 8 1 Dana, 346. 3 2 Saunder's Eep. 44. * See 4 Kent's Com., second edition, 67-8, and the oases there referred to. [271] CHAP. XS.] DOWEE.— LEGAL REMEDY. [§ 544 § 542. This rule being found unjust, statutes were made giving damages and costs in various possessory actions.' Upon one of which occasions it was provided, by the statute of Merton,^ that widows deforced of dower in lands of which their husbands died seised, and unable to recover the same without plea, should, upon such recovery, be entitled to damages against the deforcer, viz., the value of their dower from the death of the husband to the day when, by judgment of the court, they should have recovered seisin of their dower.' But by the late statute of limitations no arrears of dower, or damages on account of such arrears, are to be obtained by any action for a longer period than five years before the commence- ment of the action.'' Equity, in similar cases, allows the same damages.' § 543. The following particulars are necessary to be found by a jury when the widow recovers in her suit : 1st, that her husband died seised ; 2d, the yearly value of the lands or tene- ments ; 3d, the damages which she has sustained from the de- tention of her dower ; and 4th, her costs. Yet if any of these requisites be imperfectly found, or omitted by the jury, the defect may be remedied by the award of a writ of inquiry .° And if the value de tempore mortis, and the damage occasione detentionis dotis, be mixed in the verdict, and not assessed separately, yet the assessment must be good.' § 544. It appears from the foregoing observations that the judgment for dower of a third part of the lands by metes and bounds, being founded on the common law, and the award of damages and costs being made in consequence of the statutes of Merton and Gloucester, are separate and distinct judgments. Hence an act of the widow which may deprive her of the benefit ' Marlb. 52 Hen. IIL c. 16, 6 ed. 1 o. 1. ' 20 Hen. VIIL oh. 1. 3 2 Stra. 972. " Harris v. Jones, 6 B. Mon. 389 ; Tillingast's Adams on Ejectment, 333. ' Marshall v. Anderson, 1 B. Mou. 198 ; MoElroy v. Wathen, S B. Mon. 136 ; Gaston's Heirs v. Bates, 4 B. Monroe, 369. ^ Butler V. Ayres, 1 Leon, 92. ' See note 4 to Co. Litt. 32 b. [272] § 546] DOWER. — LEGAL REMEDY. [OHAP. XX. of the one, may not in the least degree prejudice her interest in the other. The proceedings under the writ of dower unde nihil hahet having been thus briefly traced, this subject may be concluded with a few remarks upon the usual modes of defence which are made to the widow's title to mesne profits, damages, and costs, by the pleas of tout temps prist, and detainment of charters. § 545. When the husband dies seised, his heir succeeds to his estate by legal right ; so that his entry and enjoyment of it being under a lawful title, he does no wrong in retaining pos- session of the whole until he be demanded by the widow to assign and deliver up to her a third part of it for her dower. Previously to such demand the widow's title to damages under the statute of Merton is defective ; for it only gives them to those widows who cannot obtain their dower sine placits, i. e. without suit, after a prior demand. Lord Coke, therefore, re- commends the widow to demand her dower before good testi- mony as soon after her husband's death as she is able,' in order to obviate all doubts as to her title to recover damages and costs. § 546. If, however, the widow have made no demand of dower prior to the suing out of her writ of dower, the heir may plead tout temps prist, and pray that she may not have damages; and if the plea be true, the widow will lose the mesne profits and damages from the death of her husband to the commence- ment of the suit, from which latter period to the execution of the writ of inquiry she will be entitled to them.'' But if she have demanded her dower, then she ought to reply to the plea, stating the fact, and putting the question in dispute in issue. But if the heir do not take advantage of the widow's neglect, in demanding dower by a plea, he will lose the benefit of that circumstance.^ And in such event she will be entitled to mesne profits and damages from her husband's death, together with costs." ' Co. Litt. 32 b. 2 Barnes, 234 ; BnU. N. P. 117 ; 1 Rich. Praot. C. P. 509. ' Dobson V. Dobson, Hardwioke's Rep. 19 ; Kent v. Kent, 2 Stra. 971. ' Bull. N. P. 117. 18 [273] CHAP. XX.] DOWER.— LEGAL KEMEDY. [§ 549 § 547. The widow's title is so highly favored in law that her demand of endowment, without an express refusal on the part of the tenant, will be sufficient to entitle her to damages and costs. If, therefore, the heir be an infant under guardianship, and the widow apply to him for her dower, although he be willing to comply with the request, but is prevented by his guardian, still his non-assignment, under such circumstances, will not defeat the widow's right to damages and costs, because he was the proper person to apply to for an assignment, and the widow did all that was required of her in making the request.^ § 548. A plea in a suit for dower that the husband did not die seised of the land is immaterial, and no bar to the action.^ Where in a writ of dower the legality of the marriage is the point in issue, no evidence is admissible but the certificate of the bishop.^ But where the trial cannot be by certificate, in England it is held as a fundamental and incontrovertible proposition that the trial is to be by the country, and for a reason that is unanswer- able, that there may not be a failure of justice.'' So where the husband was of unsound mind at the time of the marriage ceremony, and continued so until his death, the supposed widow has no valid claim to dower.* And to defeat such a claim upon the ground that the husband was of unsound mind, it was not necessary that it should have been declared void by a decree in his lifetime.^ § 549. Where a man having a wife in Maryland, married again in Kentucky in 1817, soon after which marriage the wife in Maryland died, and he continued to live with the one in Kentucky as such, until he died in 1838 : the court presumed, from their continued relation as husband and wife, a marriage Corsellis v. Corsellis, Bull. N. P. 117. Taylor v. Broderiok, 1 Dana, 347. Dyer, 368. 2 Henry Blackstone, 159. Ann Jenkins v. Jenkins' Heirs, 2 Dana, 103. lb. 2 Dana, 105 ; Donelly v. Donelly's Heirs, 8 B. Monroe, 116. [274] § 551] DOWEB. — LEGAL REMEDT. [OHAP. XX. in fact with the second wife after the death of the first wife, and allowed her dower.' "Where the court held on the first point that the marriage of the plaintiff below with Reed, during the first husband's life, was null and void, and of no legal avail whatever, and cited 1 Roll's Abr. 340, p. 2, § 337, p. 40, 360; F. Cro. El. 858; and 1 Salk, 120, as showing that this had been the uniform and well settled rule of the common law. That the statute only excused the felony, but left the question of the validity of the marriage just where it found it. That Mrs. Reed was the lawful wife of Guest till his death in 1800. § 550. " The true question is," say the court, '' whether there was evidence sufiicient to justify the court below in concluding that she was afterwards married to Reed. Though the lower court may have decided upon erroneous grounds, yet if upon the return there appears to be other and sufiicient reason to justify their decision, it ought to be affirmed. It is stated that there was not proof of any subsequent marriage in fact, and no solemnization was shown to have taken place. But proof of an actual marriage was not necessary. Such strict proof is only required in prosecutions for bigamy, and in actions for criminal conversation.^ A marriage may be proved in other cases from cohabitation, reputation, acknowledgment of the parties, recep- tion in the family, and other circumstances from which a mar- riage be inferred,"^ § 551. There is no doubt, by applying the cases cited by the court to proper facts, reddenda singula, singulis, that thus far the law, as settled by these English cases, is correctly enough stated, and applicable. But it is clear that the court, in citing these cases, does not distinguish between cases where the wife claims and the husband denies the marriage, and where the husband is sought to be charged after having acknowledged a woman as his wife, or where reputation or other circumstances are ' Donelly v. Donelly's Heirs, 8 B. Mon. 117 ; Dumaraley ti. Fighley, 3 Mar- shall, 369, citing 2 Kent, 87 ; Fenton v. Reed, 4 Johns. Rep. 52. 2 4 Burr, 205-7; Doug. 171. 3 Citing as additional authorities, 9 Esp. Cas. 213 ; 2 Sir Wm. Bl. Rep. 879 ; Peake's N. P. Cas. 231. [275] CHAP. XX.J DOWEE.— LEGAL EEMEDT. [§ 553 resorted to to charge him. Where the wife claims 18 B. Monroe, 371. [ 347 ] CHAP. XXVI.] OF POWEES. [§ It is apparent that the testator labored under the belief that the law would give the husband the land of the wife upon mar- riage, as it then did the slaves, and his intention was to prevent that. But suppose we consider the last sentence, or reservation as it is termed, without reference to the preceding portion of the will. Does it confer upon Corinna an estate for life, or any- other estate less than a fee simple ? The words are not "her and her children," as in Carr V. Estile;' nor to her "during life," and then to her heirs, &c., as in Turman v. White ;^ nor do they create, or attempt to create, a remainder over in the event of the death of the devisee "without issue," as in Moore v. Moore,' and Prescott v. Pres- cott;" but simply "for her and her heirs only" — words apt and fit to create an estate in fee, and which, when used without qualification or restriction, always denote that degree or quality of estate. We suppose no other meaning would have been ascribed to the words, if Oorinna had survived her husband, or had died without children. § 699. Take, then, the two sentences separately, and neither one imports an estate less than a fee. And how such effect can be given to them, when considered together, it is difficult to perceive. It is not doubted that the title conferred by the first is absolute, and it seems to us that "the title" referred to in the last is that created by the first. In our opinion the testator intended, by the reservation, to secure to his daughter (unaf- fected by any marriage she might contract, or by what he sup- posed the law in marital rights then was) precisely the same estate he had already created; or, in other words, that "the title to the land" should remain as though no marriage had occurred. However that may be, we have no hesitation in saying that there is nothing in the will which would justify the conclusion ' 16 B- Monroe. » 12 B. Monroe, 652. 2 14 B. Monroe, 568. < 10 B. Monroe, 56. [348] § 701] OF POWEES. [chap. zxvi. that the testator used the words "her and her heirs only," in any other than their ordinary and legal sense. And giving them that signification, the result is, that Corinna took by the will an estate in fee in the land in dispute. The claim of the appellants seems to be based altogether upon a different construction of the will — under which they claim, not as heirs at law of their deceased mother, but as de- visees in remainder of their grandfather C£),rter. And as the petition discloses no other claim than this, we think the demur- rer was rightfully sustained. § 700. If the power conferred by a deed is general, and authorizes the grantee to dispose of the property at his discre- tion, still the life estate to which the power was annexed, would not be thereby enlarged in a fee simple estate. This is well settled by the authorities. " A devise to A. for life expressly, with remainder to such person as he shall by deed or will appoint, will, of course, not give him the absolute interest, although he may acquire it by the exercise of his power."^ And if, in such case, A. should die before making an appoint- ment to himself under the power, his widow would not be entitled to dower. A case still stronger against the right of the wife is stated by the same author elsewhere. He says, " that if an estate is limited to such uses as A. shall appoint, and until appointment, to A. and his heirs in fee simple, an appointment by A. will cut off the right of dower of A.'s wife, which attached to the fee vested in him until he does appoint. § 701. Where a power is clearly intended to be given, the devisee cannot be regarded as taking the fee. Thus, in the case of Collins v. Carlisle's heirs,* the devise was in these words : " The balance of my estate I leave wholly to my be- loved wife, Nancy Carlisle, to be disposed of by her, and divided among my children at her discretion." It was held that she took but a life estate, and having died without fully executing the power, her children took the estate, not as heirs, but under ■ Sugden on Powers, 99. 2 7 B. Mon. 14. [ 349 ] CHAP. XXVI.] OF POWERS. [§ 703 the will. The same principle is settled in the case of McGaughey's Administrator v. Henry.' § 702. In Barnett's Administrator v.Barnett's Administrator,^ where a widow renouncing the provisions of her husband's will under the act of 1797,' has a right to dower in lands which are directed by the will to be sold by the executors, and the proceeds paid to the devisees ; and being so entitled, she cannot claim an interest in them as personal estate, converted into that character by the terms of the will. Simpson, Oh. J., said : Andrew Barnett died in 1847, having previously made and published a last will and testament. He left a widow, but no child. At the time of his death, he was the owner of a considerable estate in lands, slaves, and per- sonalty. Within twelve months after his death, the widow renounced, according to law, all benefit from the provisions of his will. She shortly after deceased, no dower in her husband's real estate having in the meantime been assigned her. This action was brought by her administrator against the administrator, with the will annexed, of her husband, for that part of the estate to which she was entitled on her renunciation of the provisions of the will. § 703. Her right to a moiety of the surplus of the personal estate which belonged to her husband at the time of his death, after the payment of debts and expenses, is not controverted. But the husband having by his will directed a sale to be made by his executors of a part of his lands and slaves, and the pro- ceeds to be paid to the devisees therein named, and the adminis- trator with the will annexed having made sale thereof after her death, her administrator claims one-half of the proceeds of said sales, upon the ground that the lands thus sold were con- verted into money by the will of the testator, and must be regarded as personal property at the time of his death. The right of her administrator to any part of these proceeds is con- troverted by the administrator of her husband, and this dis- ' 15 B. Monroe, 383 ; Tliompson v. Vance, &o., 1 Metoalfs Kentucky Reps. 677. ' 1 Meto. Rep. 254. a 2 Stat. Law, 1644. [ 350 1 § 706] OF POWERS. [chap. XXVI. pnted claim is the principal matter in controversy between the parties. § 704. By the act of 1797,' which was the law in force at the time of the testator's death, it was provided that when any widow should not be satisfied with the provision made for her by the will of her husband, she might, within one year from the time of his death, renounce all benefit which she might claim from the will, and thereupon she should be entitled to one-third part of the slaves during her life, whereof her hus- band died possessed ; and she should, moreover, be entitled to such share of his personal estate, as if he had died intestate, to hold as her absolute property. Had the husband died intestate, the widow in this case would have been entitled to one moiety of his personal estate, inasmuch as he left no child. There does not seem to us to be any difficulty in determining what constitutes his personal estate. Only such estate as belonged to him, and had assumed the character of personal estate in his life- time, can with any propriety be denominated his personal estate. § 705. The principle that land directed to be sold and turned into money, is to be considered as that species of property into which it is directed to be converted, is fully established. Con- sequently, the testator by directing a sale of his land and slaves, and the payments of the proceeds to the devisees mentioned by him, impressed upon the property directed to be sold the cha- racter of money. But as his will did not take effect until after his death, that character was not impressed upon the property whilst it remained his. During the time it was held in his possession, it consisted of lands and slaves ; no conversion of it tools place in his lifetime, and the conversion which was made by his will occurred after the property had passed from him, and at the time the right to it vested in his devisees. It never, therefore, constituted a part of his personal estate, and his widow had no right to it as being that kind of property. § 706. Having renounced the will of her husband, the widow had an undoubted right to dower in all the lands which belonged ' 2 Stat. Law, 1544. [851j CHAP. XXVI.J 0^ POWERS. [§ 708 to him at the time of his death. The lands, the sale of which was directed by his will, belonged to him when he died, and she was therefore entitled to dower in them ; whether it was assigned her in her lifetime or not is immaterial. The question is, was she entitled to it? If she was, she certainly could not claim any interest in the proceeds of the sales of the other two- thirds, because, having a right to dower in the property as real estate, she could not at the same time claim an interest in it as personal estate. It could not be at one and the same time both real and personal in its character. § 707. But there is one principle of the doctrine of equitable conversion which demonstrates most conclusively that a widow having renounced her husband's will, has no right to consider as personal estate, lands which have been directed to be sold by the testator, and the proceeds paid over to the devisees. Although a new character may have been in the most unequivocal terms impressed upon property by means of a trust for conversion, yet such constructive character is liable to be determined by the act of the persons beneficially entitled, who may, at any time before the conversion actually occurs, elect to take the property in its then condition. This right is wholly inconsistent with that claimed on behalf of the widow. For if the devisees, before a conversion of the lands, should elect to take the property in its actual instead of its destined state, a conversion would thereby be prevented, and the cha- racter of the property be changed from that impressed upon it by the testator, to that which it actually possesses. § 708. The case of Loughborough's Executor v. Loughbo- rough's Devisee, &c.,' has been cited in support of the position that the widow had a right to consider as personal estate the real estate which her husband by his will directed his executors to sell and convert into money. In the case referred to, how- ever, the real estate of the husband was equitably converted in his lifetime by deed, and had the character of personalty impressed upon it before his death. The difference between the two cases is perfectly obvious. In one case the character ' 14 B. Mon. 563. [352] § 710] OF POWEES. [CHAP. 2XVI. of the real estate was changed in the lifetime of the husband ; in the other the change did not take place till after his death. This distinction is alluded to in the case referred to, where, in the opinion, it is said that the equitable conversion spoken of " differs in the case of a deed from that of a will ; the will speaks from the death ; the deed from the delivery." " The property is converted in the lifetime of the author of the deed, whereas in the case of a will the conversion does not take place until the death of the testator." And because the property had been converted in the lifetime of the testator, the court in that case decided that it should, for the purpose of distribution after his death, be considered and treated as personal estate. The reasoning upon which that decision was founded, instead of conflicting with, fully sustains the principles of this opinion. § 709. The widow was entitled to such share of her husband's personal estate as she would have been entitled to had he died intestate; and in ascertaining that share, his estate is to be regarded and treated as if he had died intestate. Her interest in the estate can be neither increased nor diminished by any of the provisions of the will. It must be ascertained and deter- mined as if there were no will in existence. The claim set up by the administrator of William Barnett against the estate of Andrew Barnett was barred by the statute of limitations, and properly disallowed. But the Circuit Court erred in treating the proceeds of the sales of the land and slaves as part of the husband's personal estate. § 710. A testator devised all his estate to his wife during widowhood, with power, as long as she remained a widow, to sell the real estate and retain one-third of the proceeds with one-third of the personalty for life; the whole to go to the children upon the termination of her estate. She made no renunciation of the provision made for her by the will within the time allowed by law, and married without having sold the estate. Held: That she was not entitled to dower, and that all her rights under the will terminated by the marriage.' ' Vance and Wife v. CamplDell'a Heira, 1 Dana, 229. 23 [353] CHAP. XXVI.J OP POWERS, [§ 713 § 711. If a married woman, seised of real estate which ac- crued to her during coverture, does not avail herself of the right given by the statute to convey or devise the same, her hus- band will, upon her decease, become tenant by the curtesy whenever he would have been such tenant prior to the act of April, 1848, for the more eflfectual protection of the property of married women. In an action for partition brought by E. M. Clark against S. S. Clark and others,' it appeared that Moses Clark died intestate in September, 1855, seised in fee of the premises, and his wife died a day or two after. Ensign M. Clark, Sophia S. Clark, and Lucy F. Cutter, wife of Chauncey E. Cutter, were the children and only heirs at law of Moses Clark. In August, 1856, Lucy E. Cutter died intestate, leaving Clifton H. Cutter and Alice Cutter, infant children and heirs at law ; her husband, Chauncey E. Cutter, surviving. The referee reported that the two children of Mrs. Cutter were each seised in fee and entitled to an equal undivided one-sixth part of the premises, subject to the life estate or tenancy by curtesy of their father, C. C. Cutter. The guardian ad litem of the infant heirs objected to this part of the report, and claimed that the children of Mrs. Cutter inherited from their mother her portion of the land, discharged from any estate or right in the father. § 712. Marvin, J.: "Upon the argument of the question here presented. Third v. Cass' and Sleight v. Read' and Others' were referred to, and one of the counsel assumed that these cases were in conflict. The question presented in the present case was not in the case of Sleight v. Eead. The question in that case arose under very different circumstances, and was decided upon principles long since established, independent of the acts of 1848 and 1849, for the more effectual protection of the pro- perty of married women. Not is there any conflict in the opinions of the learned justices in the two oases, touching the statute referred to. § 713. "Third v. Cass is in point, and I fully concur in the opinion of Justice Mason in that case. If the wife does not 24 Barb. 581. " 9 Barb. 366. » 18 Barb. 169. [354] § 715] OF POWEES, [OHAP. XXVI. avail herself of the right given by the statute, to convey or devise her real property, the husband, on her decease, will become tenant by curtesy whenever he would have been such tenant prior to the act conferring the right upon the wife to convey and devise. I think this is clear upon the principles of the authorities cited by Justice Mason. In Morgan v. Morgan,^ an estate was by marriage settlement conveyed to trustees in fee, upon trust for the separate use of the wife, with power for her to make an appointment, and she made no appointment, and upon her death it was held that the husband was entitled to curtesy. This was in a court of equity, applying to equitable estates the principles of the common law relating to legal estates. It will be seen that the estate was so situated that the wife had power over it, and could have so executed the power as to deprive her husband of any right by the curtesy ; and such is the effect of our statute. The wife has the right to convey or devise her lands ; if she does so, her husband will not be entitled to a life estate by curtesy ; if she does not, he will. I am speaking, of course, of those cases where the wife took the estate during coverture. § 714. " In Bennett v. Davis,^ it appeared that it was the ex- press intention of the section that the husband should not be tenant by the curtesy of lands devised to the wife, and in equity it was held that he was not entitled to the estate by curtesy, but was a mere trustee for the heirs of his wife, and a convey- ance to the heirs was decreed. If the legislature had intended to deprive the husband of his right by the curtesy when the wife had not conveyed or devised the estate, it should have been so expressly declared in the act. The referee has stated the rights of the parties correctly, and the exceptions or objec- tions must l^e overruled." § 715. Slaves purchased with the land devised to the wife, and conveyed in trust to her and her appointee, at her death pass to her heirs, and not to the heirs of her husband, nor are they liable for his debts. If the trustee should die, the chan- ' 5 Mad. 408; digested in Cratb on Real Property, § 1108. 2 2 P. Wms. 316 ; Crabb on Heal Property, § 1106. [355] CHAP. XXVI.] or POWERS. [§ 718 cellor -will treat the husband as trustee for the benefit of the wife § 716. Under the statute of wills of Henry VIII. a married woman has no power to devise her lands, and can only make such devise in virtue of some power conferred or reserved by deed.^ And in cases of wills conferring powers of appointment on married women, the probate courts do not attempt to construe the effect of the instruments conferring the power. But if regu- larly proven, they are admitted to probate, leaving the legal construction thereof to the appropriate tribunals, as the ques- tions thereon may be legally presented.^ § 717. Where a power of disposition is not absolute, but sub modo, it is to be exercised according to the mode prescribed in the deed or will, under which a married woman becomes enti- tled to the property ; therefore, if she has a power of appoint- ment by will, she must so execute it ; or if she is empowered to appoint by deed, she must likewise pursue her authorities strictly.'' § 718. In the case just cited, Chancellor Kent, after reciting the origin of this authority on the part of the wife, as set forth in the reported cases from Powell v. Hawkey & Cox,* down to Francis v. Wigzell,^ finally determined the true principle of all the intervening cases on the subject to be that, instead of hold- ing that the wife is a feme sole to all intents and purposes as to her separate property, she ought only to be deemed a feme sole, sub modo, or to the extent of the power clearly given by the settlement. Instead of maintaining that she has an absolute power of disposition, unless specially restrained by ^he instru- ^ Hart V. Thompson's Adm'r and Heirs, 3 B. Monroe, 488. ' Wilkinson v. Wright, 6 B. Monroe, Ky. Rep. 577; see also Clancy on Rights, 282 ; 6 J. J. Marshall, Ky. Rep. 573. ' 6 B. Monroe, 577 ; 9 Dana, 491 ; 5 B. Monroe, 370 ; 6 J. J. Marshall, 573 ; 2 Dana, 24. * Methodist Episcopal Church v. Jacques, 3 Johnson's Ch. Rep. 77 ; 17 John- son, 576. ' 2 P. Williams, 82. » 1 Madox Ch. Rep. 258. [356] § 720] OF POWERS. [CHAP. XXVI. ment, the converse of tlie proposition would be more correct, that she has no power but what is specially given, and to be exercised only in the mode prescribed, if any such there be. Her incapacity is general; and the exception is to be taken strictly, and to be shown in every case, because it is against the general policy and immemorial doctrine of law. These very settlements are intended to protect her weakness against her husband's power, and her maintenance against his dissipa- tion. It is a protection which this court allows her to assume, or her friends to give, and it ought not to be rendered illusory. § 719. The doctrine runs through all the cases, and the in- tention of the settlement is to govern, and that it must be col- lected from the terms of the instrument. When it says she may appoint hy will, it does not mean that she may likewise appoint by deed ; when it permits her to appoint by deed, it cannot mean that giving a bond, or note, or parol promise without reference to the property, or making a parol gift, is such an appointment. So, when it says that she is to receive from her trustee the income of her property, as it from time to time may become due, it does not mean to say that she may, by anticipa- tion, dispose at once of all that income. Such a latitude of construction is not only unauthorized by the terms, but it defeats the policy of the settlement, by withdrawing from the wife the protection it was intended to give her. Perhaps we. may say, that if the instrument be silent as to the mode of exercising the power of appointment or disposition, it intended to leave it at large, to the discretion and necessities of the wife, and this is the most that can be inferred. § 720. As to the execution of the power. Story's Equity' says it is a general rule that in the execution of a power the donee of the power must clearly show that he means to execute it, either by a reference to the power, or to the subject matter of it ; for if he leaves it uncertain whether the act is done in execution of the power or not, it will not be construed to be' an execution of the power. ' Section 1062. [357] CHAP. XXVI.] OF POWERS. [§ 723 In a note to the same it is said: "All the authorities agree that it is not necessary that the intention to execute the power should appear by express terms or recitals in the instrument. It is sufficient that it shall appear by words, acts, or deeds, demonstrating the intention." § 721. As to the general property of the wife,' it is laid down that a married woman is disabled from making any contract respecting her real property, either to bind herself, or to bind her heirs ; and that this disability can be overcome only by adopting the precise means allowed by law to dispose of her real estate: as in England by a fine, and in America by a solemn conveyance. § 722. In Johnson and Wife v. Jones,^ it is said that "the wife cannot make an executory conveyance for the 'purchase of land, or the sale of lands, that will be obligatory upon her." She cannot sell or dispose of her slaves, except in the manner authorized by law,' which must be by a deed executed by her and her husband, and acknowledged before the proper officers, in conformity with the requisitions of the law, with reference to the conveyance of the landed estate of married women. In relation to her general property she is not placed, even in a court of equity, upon the same footing with a married woman who is the owner of a separate estate. She has not the same power over her general property that a married woman, own- ing a separate estate, possesses over it. The wife can make no disposition of it, unless it be done in conjunction with her hus- band, and then only in the mode pointed out by law. In the case of a separate estate the wife can act in her own name alone, independently of her husband, and can make contracts within the scope of her power over the property, which will be obliga- tory upon her, and which equity will enforce. § 723. So, where a married woman had general property, but not a literal separate estate, an executory contract made for the purchase of a farm cannot be specifically enforced ' story's Equity, 617. = Seo. 2 Revised Statutes, p. 388. » 12 B. Monroe, 331-332. [358] § 724] OF POWERS. [chap, xsvi, against her in person, or by a lien, or against her general pro- perty. The bond for the purchase-money cannot be enforced, nor can such general estate as she possesses be rendered liable for its payment. Her slaves, being general property, can only be made liable under the statute for necessaries even, and in the manner it prescribes. § 724. This right of the wife to avoid her contracts, from her legal disability, is analogous to that of infancy, as to whom, when plaintiffs, in Bailey v. Barnburger,' the court said : "That it is laid down as good law by Kent, and has so been decided by several courts of high authority, that if an infant avoids an executed contract, he must restore the consideration which he has received ; that the privilege of infancy is to be used as a shield, and not as a sword, and he cannot have the benefit on his side of the contract, without returning the equivalent on the other.^ This rule, we think, is founded on strict, impartial justice, and is the law of the case. Infancy may and should protect, but should not be permitted to oppress or injure others. The infant, as the adult, should be required to act justly. No doubt if one should take any advantage of an infant, or should overreach or defraud him, he would be so guilty of wrong him- self, that he could not demand a restoration of the consideration received by the infant, before the latter could avoid his con- tract. Nor would we say that an infant of tender years, or one whose appearance indicates clearly that he is not twenty-one years of age, is embraced within the rule ; all we intend to say is, that, as is the fact in this case (where the plaintiff lacked but a few months of being twenty-one years of age), when a party not guilty of the slightest fraud, deceit, or imposition, has given a full and fair market value for the property bought, and where he had, from the personal appearance of Bailey, and from the fact that he had previously been acting for himself, working, and receiving pay for his work, with the knowledge of, and without let or hindrance from his father, and when we had good reason to suppose him to be a man of mature age, the plaintiff ' 11 B. Monroe, 115. « 2 Kent, 240 ; 7 Cowen, 182 ; Maopherson on Infants, 488 ; 15 Mass. Rep. 345. [359] CHAP. XXVI.] OF POWERS. [§ 727 should not be permitted to recover the property or its value, without restoring the price or a fair equivalent therefor. § 725. " The cases referred to by the plaintiff's counsel, as sustaining the position he contends for, have been examined, and are found not to be at all in conflict with the opinions herein expressed. We deem it unnecessary to cite them, or to comment upon them. It will of course be understood that we do not apply this doctrine to defences by an infant, but only to the case where he is plaintiff, attempting to repudiate an executed contract." § 726. As to defective conveyances : So, where conveyances are made by husband and wife, and possession taken under their deeds, of land claimed by the wife, though the deed be defective and ineffectual to pass the title of the feme, the gran- tees in the deed are estopped to assert an outstanding title in a third person, in a contest with the heirs of the feme after the death of the husband.' § 727. The title attempted to be conveyed by the deeds, it is very evident, was the title of Mrs. Fauntleroy. It appears that she had title at the time, and it is not shown nor pretended that her husband had any other title, except in her right. In point of fact, therefore, although not so agreed in express terms, it is evident that George and Stapp acquired possession under the title of Mrs. Fauntleroy, and are therefore, and those claim- ing under them, estopped to controvert it when asserted by her or her heirs. And as they acquired the entire possession of it under her title they cannot controvert it, or the right of her heirs to recover as to any part of the land. The heirs have brought their action within the time allowed by law,'' after their right of entry occurred, and are, therefore, not affected by the defendant's possession, whatever may have been its character or duration. These positions are sustained-' ' Gill & Simpson v. Fauntleroy's Heirs, 8 B. Monroe, 185. ''' Three years. ° Miller v. Shackelford, 3 Dana, 289 ; 4 Dana, 264 ; Gregory's Heirs v. Ford, 6 B. Monroe, 471 ; also Dennis v. Warder, 3 Ben. Monroe, and other cases. [360] § 730] OF POWEES. [OHAP. XXVI. § 728. "Where the husband sells any interest which he may- have in the lands of his wife, it is the duty of those acquiring possession from the husband of the same, upon the termination of that interest, to surrender the land to the wife, or to her heirs ; and the tenant is not permitted to dispute the title of the wife, or claim under an adverse title.' In Brown v. Starke,' where the wife joined with the husband in the formal execution of his deed, in the body of which no mention of her, or of the purpose of her signing, was made, it was held that this did not operate to bind her, or to bar her of dower. § 729. In Hedger v. Ward,' where the wife signed a deed purporting to convey on the part of her husband land which was the inheritance of the wife, and acknowledge the deed and relinquished dower in the land. Held, that such deed was in- effectual to pass the inheritance of the wife, as the deed con- tained no language indicating any intention to convey her right of inheritance. An infant feme covert may avoid her deed, as well as any other infant may avoid a deed acknowledged by her conforma- bly to law. It is considered matter en pais, and is not conclu- sive as to capacity.^ § 730. A feme covert has the right to dismiss a suit brought to obtain rights derived from her father, with her husband's assent, and her heirs are bound by such order and all its con- sequences, and the decree against her or infant complainants as against other persons.' So, after discovert she may be estopped to assert her rights, and so may her heirs and privies in estate, as where a feme covert conveyed by a defective conveyance, and afterwards ' Mernnan's Heirs v. Caldwell's Heirs, 8 B. Monroe, 32 ; Gill & Simpson v. Fauntleroy's Heirs, 8 B. Monroe, 185, and oases there cited ; Blaokman's Heirs V. Pennington, 8 B. Monroe, 220 ; Gregory's Heirs v. Ford, 5 B. Monroe, 472. 2 3 Dana, 316 ; 9 Dana, 217. > 15 B. Monroe, 116. < Milner v. Turner, 4 B. Monroe, 425. It is well settled that it may be avoided. Phillips v. Green, 3 Marshall, 7 ; Prewitt v. Graves, 6 J. J. Marshall, 122 ; see also Mackey v. Proctor, 12 Ben. Monroe, 433. ' Fauntleroy's Heirs v. Crow's Heirs, 5. B. Monroe, 138. [361] CHAP. XXVI.] OF POWERS. [§ 731 when s6le, induced a sub-purchaser to pay out money, by repre- senting that the title she had conveyed was valid, and after her death her heirs seek to avoid the conveyance and oust the sub- purchaser. SeM, that the heirs of the feme, in equity, should reimburse the sub-purchaser the amount paid out in faith of the representations of the feme, and as they were non-residents, that the sub-purchaser have a lien upon the land.' § 731. A feme covert may, under certain circumstances, have the power of disposing of property by a will, or a power of appointment in the nature of a will, if ^nma facie she is shown, to have such power, the Court of Probate cannot inquire whether it has been properly exercised, on the will being offered for probate. An agreement by the husband after marriage, entered into with a trustee, giving the wife a power of disposing of property by will, which she owned before the coverture, is prima fade valid. In the case of Kelly's Devisees v. Kelly^ it is thus argued : "If the existence of the power depended upon the question whether the antenuptial agreement had been executed by Mrs. Kelly, we should be of opinion that a prima facie case in favor of the power had been shown, and this is sufficient in the Court of Probate. But whatever may be the fact with regard to the execution of the antenuptial agreement, or whatever might be its effect if not executed by Mrs. Kelly, or whatever may be the effect of the second instrument executed by Kelly after marriage, by which the antenuptial agreement, which he had destroyed, was intended to be resuscitated, we are of opinion that the first postnuptial deed made to Beauchamp, as trustee, contains a grant of power prima facie valid and independent of the efiicacy of the written marriage article, which authorized the testatrix to dispose of the slaves by will, and which, there- fore, justified and, indeed, required the admission of the will to probate, upon sufficient proof that it was the act of the testa- trix, properly executed and attested as a will. ' BlackTjum's Heirs, &o. v. Pennington, 8 B. Monroe, 221 ; and bo as to rents and improvements ; Thomas v. Thomas, 16 Ben. Monroe, 425. 2 5 B. Monroe, 372. [362] § 733] OF POWERS. [OHAP. XSVI. § 732. " If the testatrix even was mistaken in supposing the written antenuptial agreement was sufficient to sustain the power claimed, still, if there is another valid grant of power, which is embraced in the general reference made in the will, the special reference made to the antenuptial agreement can do no harm. Such special reference was unnecessary. By the deed now referred to, Kelly admits that he promised or agreed before marriage to assure to his intended wife, or to such per- son as she might by deed or will appoint, all the slaves, &c. As against him this is certainly a sufficient consideration for making the promised assurance and granting the promised power, whether the promise was or was not made in-such form as to be enforceable. And the deed must be deemed, as between the parties, at least, effectual to support the power which it pro- fesses to give. Whether it would be so if there had been no an- tenuptial promise or argument we need not decide. There does not appear to have been any such in the case of Molly Yate's will.^ In that case the necessary inference from all the testi- mony is, that before Kelly executed the marriage article it had been understood and agreed between him and his intended wife that such an article should be executed, or that in some mode a power of disposing of the property which she then had, or of some portion of it, should be secured to her. § 733. "It is perhaps proper to add, that although it may be true that the execution of the two postnuptial deeds, on the part of Kelly, may have been induced by the discontent of his wife, and her refusal to live with him, first on discovering that he had destroyed the antenuptial agreement, and afterwards on discovering that the first of these two deeds did not place her in the same condition with respect to her property that the agreement had promised ; and although it be conceded that the immediate cause of his executing these instruments was the desire of reconciling his wife and bringing her back to his home, still, it cannot be admitted that these considerations should have any tendency to invalidate the deeds; they are the solemn acts of Kelly himself. Their recitals and stipula- tions, especially those of the first deed, were not even dictated ' 2 Dana, K7. Rep. 216. [363] CHAP. XXVI.] OF POWEES. [§ 734 by his wife, but were voluntarily adopted by him. And they establish facts which show that he was under the strongest obligations of justice and honor to execute these or other more effectual deeds, rendered necessary by his own improper act. And they show that he had intended and committed an injury to his wife, which, while it was calculated to produce dissatis- faction and desertion, justified her in demanding and coercing, by such reasonable means as were in her power, a just repara- tion. Whether, in pursuing these means, she confined herself within the bounds of strict prudence and propriety, it is wholly unnecessary to inquire. She obtained at the utmost nothing more than a just reparation. And the husband cannot now be permitted to retract it by saying that what he ought to have done under a sense of justice and of honor, he was induced to do either from a fear of exposure, or from the apprehension of losing the society of his wife." § 734. Equity will aid a wife and a legitimate child, although they claim merely as volunteers, upon a meritorious considera- tion; as, for instance, upon a provision made for them after marriage. "In cases," says Lord Hardwicke, "of aiding the defective execution of a power, either for a wife or a child, whether the provision has been for a valuable consideration has never en- tered into the view of the court ; but being intended for a pro- vision, whether voluntary or not, has been always held to entitle this court to give aid to a wife or child to carry it into execu- tion, though defectively made. Though an inference to the contrary might be drawn from the principal case, it is now clearly established that a wife or child, although provided for, will be entitled to the aid of equity." "I am of opinion," says Lord Hardwicke, in Eervey v. Hervey, "that the rule as laid down by the defendant's counsel, that a wife or child who comes for the aid of this court, to supply a defective execution of a power, must be entirely unprovided for, is not the right rule of the court. I think the general rule that the husband or a father are the proper judges of what is a reasonable provision for a wife or child, is a good and invariable rule."^ ' White's Equity Cases, pp. 211-12. [364] § 737] OF POWERS, [chap. XXVI. § 735. To no otter person, except a wife or legitimate child, will the aid of the court be granted, upon the ground of the provision being for a meritorious consideration ; neither to a husband, nor to a natural child, nor to a grandchild, nor to a father, nor to a mother, brother, or sister, nor to a nephew or niece, nor to a cousin, nor to a settler defectively executing a power in his favor. A fortiori, equity will not afford its aid to a mere volunteer, in no way related to the person defectively executing a power. It is clearly settled that a defective power by a married woman will be aided, although by some extra- judicial observations by Sir Thomas Plumer, in Martin v. MitchelV this appears to have been doubted. § 736. A testator directed upon a certain contingency that "a tract of land be sold by his executors, and the money arising therefrom be applied from time to time to the advancement and support or education of his nephews and nieces, or their de- scendants, whose merits and indigence may, in the opinion of the said executors, entitle them to assistance. The executors always keeping in remembrance that the aid to be afforded by this land is not intended for those whose indigence and want have been caused by their immorality and vice ; but for the advancement of those whose merit, or good deportment, or genius, does, in their opinion, deserve assistance. In the appli- cation of this fund I rely on the discernment and discretion of my executors, with this restriction, viz., that the concurrence of at least two of them shall be necessary to any part of its application." § 737. Before the period for distribution all the executors died, and a bill was filed by the descendants of the nephews and nieces for a sale and distribution among them all. Held, that the Chancellor had no power to select any part of the de- scendants of the nephews and nieces, on the ground that they were indigent, and give to such person or persons the benefit of the provision of the will made for the indigent, &c. ; but that a sale of the lands, and a distribution of the proceeds among ■ 2 J. & W. 424. [365] CHAP. XXVI.] OP POWERS. [§ 740 all the descendants of the nephews and nieces as a class was proper ; that the Chancellor could not exercise the discretionary power conferred on the executors for the benefit of the indigent of the beneficiaries, to the exclusion of others who might have been the objects of the assistance provided for in the devise.^ § 738. The case was thus argued: "The most important question is whether the provision of the will in question is to be construed as creating a trust in favor of the class out of which the executors were required to select the proper recipi- ents of the testator's bounty, or whether it is such a trust as could have been specifically executed by the court, and which should have been so executed in favor of the appellant upon the state of facts presented by her as the basis of her title and claim to the whole of the land so devised." § 739. A discretionary power is said to exist wherever an authority is given to trustees, which is either not compulsory upon them to exercise at all, or if .compulsory, the time, or manner, or extent of its execution is left to be determined by the trustees.^ The authority conferred on the executors of this will is discretionary only as to the manner of its execution in the selection of the individuals or classes to be benefited. In all other respects it is imperative. They are directed to sell the land after the determination of the lawsuit referred to, and to apply the proceeds in the manner designated. Having been prevented by the causes stated from the exercise of those powers, and all of them having since died, it is now insisted by the appellant that it is the duty of the court to assume the direction which had been confided to the trustees, and to exercise the powers conferred upon them by the will in the same manner and to the same extent that they were required to do, with this difference only, that the court can consider and adjudicate upon the claims of the indigent alone. § 740. It is argued that indigence is a fact which may be proved and judicially decided like any other fact ; that merit, or Flint V. Spurr, &c., 17 B. Monroe, 516. * Hill on Trustees, 485. [366] § 742] OF POWERS. [chap. XXVI, talent, or genius, are matters depending on judgment or opinion merely, and are not, therefore, judicially cognizable, but to be referred exclusively to the personal discretion of the trustees. These having died before being able to exercise any portion of this discretionary power, "indigence" alone can claim the benefit of the trust. § 741. The case of Gower v. Mainwarring' is confidently relied on as showing the distinction which was made by the English courts between a discretion given to a trustee, to be exercised on a matter of opinion and judgment, and one to be exercised on a matter of fact. Here three trustees were directed by deed to give the residue of the grantor's estate " among his friends and relations, where they should see most necessity, and they should think most equitable and just." The trustee failed to act, and the question being whether the court would take upon itself the discretion. Lord Hardwicke is reported to have said : " The trustees are to judge on the necessities and occasions of the family ; that is, a judgment to be made on facts existing, so that the court can make the judgment as well as the trustees ; and when informed, by evidence, of the necessity, can judge what is equitable and just on this necessity." He ultimately decided that the residue was to be divided between the brothers of the plaintiff and a son of a deceased sister, "according to their necessities and circumstances, which the Master was to inquire into, and consider how it might be most equitably divided." § 742. Hill, in his Treatise on Trustees, remarks, in com- menting upon this case, that "Lord Hardwicke's words, as quoted above, are somewhat unintelligible, if not inconsistent with themselves ; and on several other occasions, and, indeed, in the course of his judgment in Gower v. Main warring itself, he expressly disclaimed any jurisdiction of exercising discre- tionary powers in general. And the current of more recent authorities renders it very doubtful whether the case in ques- tion would meet with a similar decision at the present day ; at ' 2 Vesey, 87. [367] CHAP. XXVI.] OF FOWEES. [§ 745 all events, it will be found extremely difficult to make any practical application of this distinction between matters of fact, and those of mere judgment and opinion." § 743. The same author says further upon this subject, that the courts have long since repudiated this jurisdiction in cases of discretionary powers vested in trustees, and it is now settled that the court will never exercise a mere discretionary power, either in the lifetime of the trustees, or upon their death or refusal to act. Although where a trust is created for a certain class of objects, and the discretionary power applies only to the selection from or distribution amongst those objects, the court, while it disclaims the exercise of the discretion reposed in the trustees, will, if necessary, enforce the performance of the tr%Lst, by decreeing the distribution of the property amongst all the objects equally.^ § 744. We have found no case in which the doctrine thus lucidly stated has been overruled or questioned, and the pro- priety of its application to the case we are considering is mani- fest. The testator directs the executors to apply the fund from " time to time to the advancement, support, of any of his indi- gent nephews or nieces, or their descendants, whose merit or indigence may, in the opinion of the said executors, entitle them to assistance." That the aid to be afforded is for the advance- ment of those whose merit, good deportment, or genius, does, in their opinion, deserve assistance, " and in the application of this fund I rely on the discernment and discretion of my exe- cutors." We are unable to conceive how the conclusion can be drawn from these clear and explicit declarations of the intention of the testator, that in any event, or upon any con- tingency, indigence, however faultless, was to be permitted to monopolize this bounty, to the utter exclusion of the claims of "merit," or "good deportment," or "genius." § 745. It cannot be doubted that it would have been the duty of the executors, in the exercise of this power, to devote ' Hill on Trustees, 486, and oases there cited. [368] § 746] OF POWERS. [chap. XXVI. the fund to the education of such as required it, or to the reward of merit of any kind, or to the relief of the indigent, according to their best judgment and discretion ; and if this be so, it follows that the same power, if assumed by the court, must be executed upon the same principle, and within a range of discretion no more restricted as to objects. Thus the court cannot act; the utter impracticability of the exercise of this jurisdiction by a court of equity in a case like the present, even assuming that the claims of the indigent only are to be con- sidered, is a conclusive reason why it should have been repu- diated, as it has been, by the courts of England. The difficulty of determining who, among the numerous descendants of the nephews and nieces of the testator, many of whom are unknown, ^d many probably in distant countries, are the most indigent, and what were the causes that led to their condition, involving probably the entire history of the life of each applicant, would be such as to promise no other results than delay, expense, and injustice. § 746. The principle laid down in "Hill on Trustees," above referred to, has been decided in numerous other cases. In Burroughs v. Phileox" it was held by Lord Cottenham, " that where there appears a general intention in favor of a class, and a particular intention in favor of individuals of a class, to be selected by another person, and the particular intention fails, from that selection not being made, the court will carry into effect the general intention in favor of the class."^ And the Circuit Court, having proceeded upon this principle in the distribution of the fund in controversy, the judgment is in all respects proper, and must, therefore, be affirmed. ' My. & Cr. 72. 2 Harding v. Glyn, 1 Atk. 496 ; Brown v. Higgs, 8 Vesey, 574. 24 [369] CHAP. XXVII.J CONVEBSION IN EQUITY. [§ 748 CHAPTEE XXVII. CONVEKSION IN EQUITY. § 747. In Loughborough v. Loughborough,' it was material for the land to be considered as converted into money. There being no children, the widow, would take one-half as her distri- butive portion, otherwise dower in the land merely. And there being a deed directing a trustee to sell the property therein conveyed, in such a manner and on such terms as will realize the largest prices, and make conveyances to the purchasers. With the proceeds of the sales, and the notes transferred by the deed, he is required to pay the debts in the order prescribed, "and the surplus of the funds produced by the property hereby conveyed, shall be held by said Speed in trust for said Lough- borough." The deed does not merely direct the sale and con- version of so much of the real estate as may be necessary for the payment of the debts, and provide that the residue thereof shall be held in trust for the grantor. It directs the whole of it to be sold, and the surplus funds arising from the sale, and not the surplus of the property itself, to be held in trust for the author of the deed. § 748. It is not material then whether a sale of all the trust property was required for the payment of the debts or not, or whether the author of the deed directed a sale of it under the belief that it would all be necessary for that purpose. The deed itself afiixes to the property its character, and that without reference to its actual condition at the time of the grantor's death, or to the necessity of the sale of the whole of it for the payment of the debts specified in the deed. This proposition is fully sustained by the cases already referred to.' ' 14 B. Monroe, 556. 2 Briggs V. Andrews, 5 Sim. 424, and Griffith v. Rioketts, 7 Hare, 299, 27th volume of English Chancery Reports. [370] I 751] CONVERSION IN EQUITT. [CHAP. XXVII. § 749. There is no reason why a court of equity should not be governed by the legal effect of the deed, in deciding in this case between the claims of the widow and the devisee. The latter has no superior equity to that of the former, and even if they should be regarded as standing upon an equality, the equitable doctrine of conversion operates in favor of the claim of the widow, and must be permitted to have its full effect. § 750. The trust was not fully executed in the lifetime of the author of the deed, nor did anything take place during that period to alter the legal effect of the deed. It follows from these views that the real estate contained in the deed of trust, which has not been sold, and remains as a surplus, must be distributed between the claimants as if it were personal property, and that the widow is entitled to a moiety thereof, her husband having died childless. § 751. A testator devised to his wife one-third in value of his slaves, with power at or before her death to divide such slaves as she might think proper among her children. She failed to exercise the power of appointment. Held, that the children took equal interest in the slaves under the will as devisees.^ We come to the inquiry, to which our attention has been chiefly called by the argument and by the interest of the par- ties, and that is, whether, in the event which has occurred, of the death of the widow without having executed the power and privilege given to her, and by which their literal and actual execution has become impossible, the will has made a disposi- tion of the remaining interest in the land and slaves devised to her, or has left this interest undevised, and to be disposed of by law. If the fee was given to the widow with a restriction, effectual or ineffectual, upon her power of disposition, that would put an end to the question, in the form in which it has been stated ; and as the same persons would take these estates, and in the same proportions, whether they take by descent from the widow, or by the execution in equity of a trust implied in ' MoGraughey's Adm'r v. Henry, &c. 15 Monroe, 399. 371] CHAP. XXVII.] CONYEESION IN EQUITY. [§ 753 the restricted power, it would be unnecessary to inquire whether there was such an implied trust now enforceable in equity, or whether there was no such implied trust, and the power not having been executed, the land and the slaves descended as the absolute property of the widow. In either case, the land and the slaves would be divided without regard to what may have been received by a gift or devise from the testator. § 752. But if, as we have supposed, the widow took a life estate under the devises of the land and slaves to her, then it becomes immaterial to inquire if there is anything in the will which either directly, or by way of trust, disposes of the re- mainder after her death. We think it can hardly be doubted that the testator intended to dispose by his will of all the estate which he should leave at his death. This might be presumed, and is expressly intimated in the introductory statement to the effect that his writing "to say how his legal representatives should act in carrying into effect his will, in that which is left undone by himself." If he intended to give his widow but a life estate, it cannot be supposed that he intentionally left so large a portion of his estate undisposed of, as the remainder in trust in the land and slaves devised to her. Intending, as we assume, to dispose of his whole estate, he had ample time and ability to take a deliberate view of the whole, to dispose of it in an intelligible manner, according to his wishes, and to con- sider whether, in writing his will himself, he had done so. If he overlooked anything, it was not the large interest now in question. He undoubtedly supposed and intended that the exercise of the power given to his wife, and through her agency to his children, or such as she might select, and in such portions as, in view of their conduct and condition, she might think proper, would and should receive this remainder interest. § 753. She had no discretion which might authorize her to take it from them, or to dispose of it to others, but only a power to select or discriminate among them. He obviously intended that they, or such of them as she might select, should have the property. Her untimely death, which prevented the exercise of the power, also removed the particular causes or reasons, on account of which it was invested in her. But the intention in [372] § 755] CONVERSION IN EQUITY. [OHAP. XXVII. favor of the children, as manifested by the gift of the power, did not depend upon its actual exercise, which must have been prevented by other causes than the death of the donee, or might not, in her judgment, have been called for by the considerations to which it refers. And at last it was but an agency or instru- mentality, deemed suitable under the circumstances, for effecting the transmission of this estate to his children, for he obviously had no others in contemplation in speaking of her children. Did he then intend that the failure of this agency should defeat entirely the object or end for which it was created ? or is not the end still to be regarded, and as far as practicable accom- plished, though the appointed means have failed ? § 754. There is some difference in the terms used in giving the power, with respect to the land and the slaves. But the power, its objects and effects, and the discretion to exercise it as such, are substantially the same in each case, and in each case it establishes the inference that the testator intended that at the death of his widow, or sooner if she should think proper, the children, or (in case of the land) such of them as she might select, and as to both classes of property, in such proportions as she might think proper, should take the property; and we think it is, in effect, a gift to them as a class, subject to her power of selection and discrimination. And that power having failed by her death, the gift to them as a class still remains. § 755. For this conclusion the case of Collins, &c. v. Carlisle's Heirs' seems to furnish a direct and authoritative precedent. And it is only because of the elaborate argument of the ques- tion in this case, and of the opposing opinion of the judge who decided it in the Circuit Court, that we have not been content to rest our conclusions upon the authority of the case just re- ferred to. In that case the devise was in these words: "And the balance of my estate wholly I leave to my beloved wife N. C, and to be disposed of by her, and divided among my child- ren at her discretion." This court decided that upon the death of the wife, without having controlled or disposed of a certain ' 7 B. Monroe, 14. [373] CHAP. XXYII.] CONVEESION IN" EQUITY. [§ 757 part of the estate (that is, without having exercised her power over it), the children became entitled to it, not as her heirs, but under the will of their father. And the opinion of the Circuit Court, that the wife took an estate for life under the will, was expressly approved and concurred in by this court. It is true, there was neither discussion nor citation of authority in support of the decision then rendered, which tends to prove that the court regarded the question as a plain one upon the will itself. And although upon such examination of authorities as we have had opportunity to make, we find that there is some discre- pancy, and, perhaps, confusion in the cases, we think the cur- rent of authority is in favor of the decision in the case above cited, and of the conclusion at which we have arrived, that the children take under the will. § 756. In " Jarman on Wills,"' the doctrine is laid down, that where property is given to one for life, and afterwards to such children, relations, &c., as he or she shall appoint, or among them in such proportions as the donee shall appoint, and there is no express gift to these objects, in default of appointment, such a gift will be implied; the presumption being that the donor did not intend that the objects of the power should be disappointed by the failure of the donee to exercise it in their favor. Among the cases referred to in support of this proposi- tion, is that of Brown v. Briggs,' where the bequest was "to such children of my nephew S. as my nephew J. shall think most deserving, and that will make the best use of it, or (and) to the children of my nephew W., if any such there are or shall be." J. having died in the life of the testator, and he, says the Master of the Eolls, Sir E. P. Arden, and Lord Eldon, held the children to be entitled under the implied trust. The same case is stated somewhat dififerently in " Hill on Trustees" (side p. 69), but as to the point now in question, the decision (by a different page) appears to have been the same. § 757. The author last referred to proceeds, in the page just cited, to say : " However, at the present day the courts will I Vol. ii. side p. 485. " 4 Vesey, 708. [374] § 759] CONVEESION IN EQUITY. [CHAP. XZVII. endeavor to construe a bequest of this description into a gift by implication to the objects of the power, in default of its being exercised ;" and he suggests that if the two cases before stated by him, in which the decision was different, were again to occur, there is little doubt that the children would be held to take under the terms of the bequest, although the power were not exercised in their favor. And he refers to cases where the tenant for life is desired at his death "to give it among his children as he shall see fit ;'" or where the residue, at the death of the tenant for life, is "to be disposed of amongst her child- ren," as she should think proper f or where there is a gift, after the death of the testator's wife, " to such of his grandchildren as she should appoint," and says there are many others in which the power has been held to extend only to a selection from and distribution amongst the class of objects ; and in default of the exercise of that power, they will be all equally entitled. For which many cases are referred to in the note. § 758. The cases of Brown v. Pocock,'' and Croft v. Adams," confirm the principle advanced. These cases would bear most strongly upon the one before us, and in favor of our conclusion, if the devise here were expressly for the life of the widow, and we think they are little less conclusive upon the case of a life estate by construction ; and, as already said, if she had the fee, it is immaterial, in the present case, whether the remainder passed under a trust, or simply by descent from her. The case of Harrison v. Harrison, decided by the Supreme Court of Yir- ginia," is, like the case of Collins v. Carlisle's Heirs in this court, a direct authority for the present decision. § 759. Judge Story, in his work on Equity Jurisprudence, treats of these trusts implied from powers, in section 1068 and those which follow. In the section named he states several strong cases in which trusts have been implied. But he does not make the distinction between cases in which the devise to the donee of the power is expressly for life, and those in which ' 2 Sugden on Powers. ' 6 Sim. 527. ' Kempe v. Kempe, 5 Vesey, 849. ■> 12 Sim. 639, as stated in the text. ^ 2 Gratt, 1 ; and stated in Hill on Trustees, p. 95, in a note. [375] CHAP. XXVII.] C0NVEE3I0N IN EQUITY, [§ 759 it is indefinite. It is to cases in which a fee in the first taker is expressly or impliedly given, that his observations with respect to a disinclination in modern times to extend the doctrine of recommendatory trusts are more particularly applicable. And although we are inclined to think that, even under the restric- tions as stated by him, a trust would be implied in this case, though it should be held that the widow took more than an estate for life, we deem it unnecessary to push that inquiry, because, as already shown, it would be immaterial to the rights now in question, and because we have, upon grounds of reason and authority deemed satisfactory by us, placed the question in this case upon a difierent basis. The result of our views is, that the land and slaves, after the death of the widow, passed by the will equally to the children of the testator, and must be divided among them and their representatives (the husband being entitled for life to the slaves, and probably to the lands belonging to the shares of their wives), without reference to any inequality in other portions of the estate given or devised, but with a view to the equality and proportion in respect to the lands and slaves which had been devised to the widow, who was entitled to one-third of the slaves, though she did not live to make choice according to her privilege. [376] § 761] WILLS OF MAEElED WOMEN. [CHAP. 2XVIII. CHAPTER XXVIII. WILLS OF MABRIED WOMEN. § 760. In George (of color) v. Bussing,^ the doctrine is well settled that the wife may dispose of her separate estate by will, and may make a will in pursuance of the power given her for that purpose. It is also the settled doctrine that she may, with the consent of her husband, make a will to dispose of her per- sonal estate. The principle upon which the power of the wife to make a will in such a case is founded seems to be this : that the husband may waive the interest in her property which the law confers upon him, and empower the wife to dispose of it by will. The grant of such a power is implied from his consent that the will should be made. A general assent that she may make a will is not sufficient. It must be proved that he has consented to the particular will 'which she has made, and his consent should be given when it is proved. The reason for this is, that he may revoke his consent, at any time during his wife's life, or after her death, before probate.^ § 761. The consent of the husband that the wife should make this will is fully established by the proof, as well as his assent to the probate. When the will is made, as it was in this case, in pursuance of the wishes and with the express consent of the husband, very little testimony will be required to make out the continuance of the consent after her death.' The first section of the Kentucky statute on wills, passed in 1797," applies to devisees of real estate merely, and consequently, although that statute does not confer on married women the power to devise land, it does not render her incapable to dis- ' 15 B. Mon. 563. ^ 1 Roper on Husband and Wife, 140 ; Williams on Executors, 40. ' 1 Williams on Executors, 41. * 2 Stat. Laws, 1537. [377] CHAP. XXVIII.] WILLS OF MAEEIED WOMEN. [§ 764 pose of personal estate, and it has never been held to prevent her from devising real estate under a power of appointment.' § 762. A married -woman was excepted out of the statute of wills of 34 and 35 Henry VIII. ; yet the courts in England held that she could make a valid will, with the assent of her husband, to dispose of her personal property; that she could, without such assent, dispose by will of such personal property as was held by her to her separate use ; and that she could also, by virtue of a power of appointment, dispose of both real and personal estate by will.^ § 763. The will of the wife was therefore valid with respect to her separate estate and also her personal property. But her capacity to dispose of her slaves by will is a different question, and depends upon the construction of the statutes regulating and prescribing the manner in which slaves shall be devised. By the Kentucky statute of 1800' it was enacted that slaves, so far as respects last wills, should be held and deemed as real estate, and should pass by last will and testament in the same manner and under the same regulations as landed property. A will to pass slaves must be made in the same manner and with the same formalities that a will to pass lands must be executed, and the person who makes it must have power to devise lands. A married woman has no such power, unless the will be exe- cuted in pursuance of a power previously conferred by some appropriate instrument of writing. A verbal authority from the husband is not sufBcient. The wife cannot, therefore, with the consent of her husband merely, without some other power, make a valid disposition of her slaves by will. § 764. As the assent on the part of the husband, that the wife shall dispose of her personal estate, is no more than a waiver of her rights as her administrator, and it is this waiver that gives validity and effect to the instrument, by enabling her executor to claim such articles of her personal estate as her ' Yates's Will, 2 Dana's Ky. Rep. 216 ; Kelly's Devisees v. Kelly, 5 Ben. Monroe's Ky. Rep. 372. i* 1 Williams on Executors, 42, 43. ^ 2 Stat. Laws, 1546. [378] § 766] WILLS OF MAEBIED "WOMEK. [OHAP. XXVIII. husband would. Lave been entitled to as her administrator in case he survived her, it is obvious that her will, made even with the husband's consent, only operates to pass such things as do not belong to the husband, but which he would have a right to after her death only as her administrator. The per- sonal property which belonged to her, and which was reduced to possession by the husband, and thereby became his abso- lutely, does not pass by the will. § 765. From these principles it follows that the will in the case was effectual to pass the separate personal estate of the wife, and also so much of her other personal estate, if any, as her husband, after her death, would have been entitled to only as her administrator ; but it was ineffectual to pass or dispose of her slaves, or any personal estate which belonged to her husband at the time it was executed. The increase of the separate estate, and everything that had been purchased with its proceeds, constitutes a part of it, and passed by the will. A person to whom money is devised to purchase land may elect to take the money .^ If money be devised to be laid out in the purchase of pro- perty, the person for whose benefit the purchase is to be made may come into a court of equity and have a decree for the money, because, being the owner, he may prevent a conversion, and take the thing devised in its present state, if he elect to do so. And this election he may make by an application to a court of equity, as well as by other acts or declarations clearly indicating a determination to that effect.^ It is true that coverture is a disability to a woman's electing to change the nature of her property without the interposition of a court of equity. But in the present case the election was made by an application to the court; and if it were necessary to have been made, to have given effect to the devise, a court of equity would always permit it to be done for that purpose.' § 766. A married woman may dispose of her separate estate ' 3 Story's Equity, §§ 793-1213 ; Eoper on Legacies, 478. " Ibid. ' Sledd's Executor v. Carey and Wife, 1 B. Monroe, 182. [379] CHAP. XXVIII.] WILLS OF MAEEIED WOMEN. [§ 768 by an instrument in writing, purporting to be her last will and testament. In all the cases of wills by femes coverts, such an instrument is not in fact a will, but a writing in the nature of a will, in virtue of the power reserved to a feme covert ; and whoever takes anything under the same, takes by virtue of the execu- tion of the power, and by the power coupled with the writing. A separate estate of the wife is one over which she has such dominion as to be an exception to and exclude the marital rights of the husband. § 767. In contemplation of marriage, and previous to its consummation, an anfe-nuptial contract was executed in writing, under seal, between the intended husband and wife, wherein it was stated that the intended wife possessed a large separate estate, which she was to enjoy, control, and dispose of after marriage as if she were a feme sole. Her intended husband covenanted to allow her the exercise of this power over her own estate as if she were still a single woman. After the mar- riage the wife made an instrument in writing, purporting to be her last will and testament, bequeathing $1000 to the American Home Missionary Society. § 768. Per Taylor, J. This case^ comes into this court on an appeal from the decree of the surrogate of the county of Mon- roe, refusing probate of an instrument of writing purporting to be the last will and testament of Elizabeth Wadhams, on the ground that the said instrument was null and void as a last will and testament, she being at the time of its execution a married woman. It appeared from the proceedings before the surrogate that the deceased testatrix, at the time of the execu- tion of said instrument, to wit, on the 26th day of August, 1848, was a married woman, the wife of the said Jonathan Wadhams, and was then living with him ; that on and before the 28th day of May, 1838, the said testatrix, then Elizabeth B. Crocker, was the owner in her own right of real and personal property, and cboses in action ; that a marriage was then contemplated by and ' Home Missionary Society v. Wadhams and Parmelee, 10 Barb. 597. [380] § 770] WILLS OF MABEIED WOMEN. [CHAP. SXVIII. between herself and the said Jonathan Wadhams, and the said testatrix executed an instrument in writing, duly signed and sealed by them, in which the said "Wadhams agreed that his intended wife should enjoy, control, and dispose of her estate as if she were a feme sole. There were other covenants on the part of Wadhams, consti- tuting him a trustee for her use, provided any of the property should ever come into his hands, by operation of law or any other way, and otherwise confirming his obligation to use such property only according to her directions. § 769. An instrument of writing was produced before the surrogate, purporting to be the last will and testament of Eliza- beth "Wadhams, by which she gave the sum of $1000 to the Home Missionary Society. The questions raised and argued are: 1. "Whether an instrument made under these circumstances is valid, as the execution of a power of appointment, by way of devise, so as to convey the property devised. 2. Whether such an instrument, so made by a married woman, can be admitted to probate. No particular form of words is necessary in order to create a separate estate in the wife, to the exclusion of the husband;' but any words which imply independency of her husband's marital rights constitute such an estate.^ § 770. The true distinction is forcibly pointed out by Sir William Grant in Heatty v. Thomas.' "The question is," he says, "whether the property was separate property to all intents and purposes; because it seems clear that, to the extent to which it is separate property, the court will give efi'ect to the contract of the owner. If she has a power over it by deed, and agrees to exercise that power, or if it is settled generally to her own use after the termination of the coverture, she can alienate it as if she were a feme sole"* ' Bell's Law of Prop. 447. ^ Prichard v. Ames, Turner & Russ. 222; Steedman v. Poole, 6 Hare, 193 ; Wagstaff V. Smith, 9 Vesey, 520 ; Margetts v, Barringer, 1 Simon's Rep. 482 ; 10 Eng. Cli. Eep. 158. ' 15 Vesey, 596, 602. « Batten's Law of Contr. 8 ; Strong v. Skinner, 4 Barb. S. C. E. 546. [381] CHAP. XXVIII.] WILLS OF MAERIED WOMEN. [§ 773 § 771. In this case tbe marital rights of the husband over the property were all voluntarily relinquished by a solemn agreement, and the wife was left in possession of her separate property, to exercise dominion over it to all intents and pur- poses, as if she were a feme sole, and this dominion is unre- strained either as to the objects upon which, or as to the mode or form in which it should be exercised. § 772. It is a rule of the common law that the power of alienation is an inseparable incident of the right of property.' But it is also a rule that during coverture a married woman cannot dispose of either her personal or real estate without the consent of her husband. Equity has encroached upon the common law in both these respects. When courts of equity first established the doctrine of a separate estate, it violated the laws of property between husband and wife ; but it was thought beneficial, and it prevailed. It being once settled that a wife might enjoy a separate estate as a /erne sole, the laws of property attached to this new estate, and it was found, as part of such law, that the power of alienation belonged to the wife, and was destructive of the security intended. Equity again interposed, and, by another violation of the laws of property, supported the validity of the prohibition against alienation contained in the deed or will.^ § 773. Hence it follows that in relation to a separate estate held by a feme covert, without the prohibition of anticipation, she is to all intents and purposes a feme sole, and so she is treated in all the books; equity in every respect treating pro- perty given to a married woman for her separate use, without restraint of alienation, as the property of a feme sole? The power of disposition by a feme covert of property given to her separate use extends to her reversionary interest as well as to ' Bell's Law of Prop. 503. 2 Nedby v. Nedby, 4 Myl. & Craig, 467. ' Peacock v. Monk, 2 Ves. Sen. 190 ; Pettiplaee v. Gorges, 1 Ves. Jr. 46 ; Atherl«y on Marriage Settlements, 332 ; Bell's Law of Property, 513 ; Strong V, Skinner et al., 4 Barb. S. C. R. 546. [382] § 775] WILLS OP MAEBIED WOMEN. [OHAP. XXYIII. her interest in possession.' In the case of Hulme v. Tenant,' Lord Ch. Thurlow says the rule is laid down in Peacock v. Monk that a feme covert, acting with respect to her separate property, is competent to act in all respects (including disposi- tion by will, of course) as if she was a feme sole, is the proper rule, and necessary to support the decisions on this subject.^ § 774. Mr. Eoper, in his work on Husband and Wife,'' says: "A limitation of real estate to the wife in fee, to her sole and separate use, without expressing more, will not enable her to dispose of it during the marriage, otherwise than by fine or recovery." But, upon that point, McQueen," a much later au- thority, says : " Whatever may have been the law at the time that Mr. Eoper wrote, the inclination of the courts at the pre- sent day is to give effect to the wife's separate estate exactly as if she were a feme sole. Now, if a married woman has the fee simple of real property to her separate use, she may, without her husband's concurrence, convey the equitable or beneficial interest by deed executed by herself alone ;° and if land be conveyed to a trustee and his heirs, in trust for a feme covert and her heirs, for her separate use, she may dispose of the fee simple precisely as if she was a single woman.'" § 775. So in the case of Eippon v. Dawding,' the wife stipu- lated with her intended husband that she should have the power of disposing of her estate, notwithstanding her coverture. She afterwards, in her husband's lifetime, devised the estate to her younger children in fee. After her death the devisees brought a bill against her heir at law for a conveyance of the estate, and Lord Camden decreed accordingly. In many of the American States the principle adjudged is directly hostile to that which is so well established in England. ' Headon and Wife v. Kosher, MoLelland & Young, 89 ; Sturgis v. Corp, 13 Ves. 190. « 1 Bro. C. C. 16. ' See also Grigby v. Cox, 1 Ves. Sen. 517 ; Hearle v. Greenbank, 1 Id. 303. < Vol. i. p. 182. " Husband and Wife, 296. « Genin on Trusts, 1st ed., 151 ; McQueen on Husband and Wife, 297. ' Ibid. » Amb. 566. [383] CHAP. XXVIII.] WILLS OF MARRIED WOMEN. [§ 778 § 776. The leading case in this departure from the English doctrine was that of Swing v. Smith.^ On appeal from the decree of the chancellor, the Court of Appeals in South Caro- lina established the rule that a feme covert has no power with regard to her separate estate but what has been expressly given to her by the instrument of settlement, and that any power so given must be strictly pursued. And this rule has been still sustained by a multitude of cases in the courts of that State." The same doctrine has also prevailed in the courts of Pennsyl- vania, Tennessee, Mississippi, &c. § 777. In New York, however, the English doctrine has been fully sanctioned. In the case of Jacques v. The Methodist Epis- copal Church,' Chancellor Kent reviewed with great acuteness and ability the leading cases decided in the English courts, bearing upon this question. In giving his opinion, he says that although, at the first glance at the auth&rities, they appear to be full of contradiction and confusion, still he admits that "they are certainly in favor of the position that in equity a married woman is considered, with respect to her separate property, as a feme sole, and is held to have an absolute dominion or power of disposition over it, unless the power of disposition be re- strained by the deed or will under which she became entitled to it." But, considering the English decisions "as floating and contradictory," he adopted the rule that she ought to be con- sidered a feme sole sub modo, or only to the extent clearly given by the settlement. § 778. So Cowen, J., in Dyott v. The North American Coal Company,^ says: "Where her separate estate is completely dis- tinct and independent of her husband, she may be regarded in equity, as it respects her power to dispose of or charge it with debts, to all intents and purposes as a feme sole. " If, however, there was any room for doubt on this point, I think the terms of the antenuptial contract were broad enough ' 3 Des. 417. 2 1 Hill'a Ch. R. 228 ; 1 Dudley's Cases in Chancery, 128 ; Cheeves's Cases in Chancery, 163 ; 1 Strothart's Equity Cases, 27-114. » 3 John. Ch. Rep. 78. -■20 Wend. 571. [384] § 780] WILLS OF MAERIED WOMEN. [OHAP. SXYIII. to cover the devise or bequest by will ; the word 'dispose' being suiSciently comprehensive in its meaning to include every pos- sible mode of alienation or disposition of property. "But it is contended that at law the will of a married woman is void, she being expressly prohibited from making a will by our revised statutes.* So far as real estate is concerned, this statute grants a power to all others except those named, but is not in terms a prohibition to married women; although the exception no doubt operates as an exclusion in all cases, if not controlled by other statutes." § 779. It cannot be denied that a power can be conferred on and held by a married woman. If there was ever any doubt on that point, it is effectually removed by the New York Ee- vised Statutes,^ when treating of powers, for the 109th section expressly recognizes such capacity in her, and the 110th section provides that a married woman may execute a power during her marriage, by grant or devise, as may be authorized by the power, without the concurrence of her husband. These clauses In the statute relating to powers sustain the recognized common law of the State, as sanctioned by our court of ultimate resort, and were probably incorporated in the statute law to leave no doubt upon so important a principle. It should be kept in view, in all cases of wills by femes coverts, that such is not in fact a will, but a writing in the nature of a will, in virtue of the power reserved to the feme covert; and that whoever takes under the same, takes by virtue of the execution of the power, and by the power coupled with the writing.' § 780. The comments of the chancellor upon section 21," prohibiting the disposition of personal property by a married woman by will, when the power of appointment is reserved to her, are in point, and are a sensible and satisfactory exposition of the meaning of the law." It should not be assumed that the legislature intended to prohibit in one section the exercise of a ' 2 R. S. 57, part 2, chap. 6, tit. 1, art. 1, § 1. « Part 2, chap. 1, tit. 2, art. 3, 1 R. S. 735. 3 lb. sec. 766. * 2 R. S. p. 60. « Strong V. Wilkin, 1 Barb. Ch. Rep. 13. 25 [385 J CHAP. XXVIII.] WILLS OF MAKRIED WOMESr. [§ 783 power -which was clearly granted in another. But if the capa- city of a married woman to execute a power by appointment be excepted out of the general prohibition contained in the 21st section, then the different provisions of these statutes are made to harmonize not only with each other, but with long established principles as administered in courts of equity.^ If this doctrine be correct, it follows that Mrs. Wadhams had the capacity to execute the power of appointment by will as well as by grant. § 781. The counsel contended, on the argument, that although the wife could execute a power by an instrument in the nature of a will, under the antenuptial agreement, which would be enforced in equity, yet, this being an equitable right, it became merged in the legal right, as secured to her by the act for the more effectual protection of the property of married women, passed April 7th, 1848.^ This point the counsel labored more vehemently than I think it deserved. § 782. The wife had become vested with certain well-defined equitable rights by the agreement with her husband touching her property. Whatever those rights were, I apprehend the legislature possessed no constitutional power to divest her of them, even if the language and intent of the act had been more decisive upon that point than they were. The first and third sections have no relation to this case. Although the second section is intended to confer a legal right, it is in terms almost a repetition of the language of this ante- nuptial contract ; and the fourth section provides that all con- tracts made between parties in contemplation of marriage shall -remain in full force after such marriage takes place. § 783. Such a confirmation of pre-existing power or right seems to have been not at all necessary. But the contracts referred to, then existing, were made in full view of the rights of the parties under them, both equitable and legal ; and the legislature no doubt intended by that section to preserve in full ' Moehring v. Mitchell, 1 Barb. Ch. Rep. 272. ^ Session Laws, 71 ; Session Cii. 200. [386] I 785] WILLS OF MABRIED WOMEN. [CHAP. XXVIII. force all existing rights, equitable as well as legal, unimpaired, in consequence of the enactment of that extraordinary law, a law well calculated in its influences to embitter the chief spring of social enjoyment, degrade the sacred relation of man and wife, leaving in full vigor only the sordid companionship of Baron and Feme. § 784. So far as the law of 1848 has any operation on this case, it simply superadds certain legal to the pre-existing equi- table rights of the wife. As to the remaining question, it was admitted by the counsel for the respondent, on the argument, that if the instrument of devise is ef&cacious as the execution of a power, though not as a will, it still might be admitted to probate. This is undoubt- edly correct. To establish in evidence the will of a married woman, made in execution of a power, probate of it was ad- mitted and necessary in England, in the ecclesiastical courts, in order to confirm judicially its testamentary nature; and it is there settled that such an appointment cannot be made avail- able, either at law or in equity, without probate.' And the appointment is now allowed to be proved without the husband's consent, the probate being limited to the property comprised in the power.^ In all such cases great liberality is exercised by the ecclesiastical courts, which will not look nicely into the question whether the appointment is authorized by the power, as the grant of probate does not determine the right, but leaves it open for decision in the temporal courts.' § 785. A similar doctrine is held in our court," and such is unquestionably the fair meaning of the New York statute relating to powers. The 110th section' authorizes a married woman to execute a power during coverture, "hy devise;" and the 115th section" directs the mode by which such power "by devise" shall be executed — namely, precisely in the manner > 1 Atk. 159 ; stone v. Forsyth, Doug. 707 ; Jenkins v. Wiiteliouse, 1 Bur- row, 431 ; Rich v. Cockell, 9 Ves. 369. 2 Tappenden v. Walsh, 4 Phill. 352 ; Moss v. Brander, Id. 254. 3 Moss V. Brander, 1 Phill. 253. * Strong V. Wilkin, 1 Barh. Ch. Rep. 14, 15 ; Moehring v. Mitchell, Id. 272. 6 1 R. S. 735. 6 1 R. S. 736. [387] CHAP. XSVIII.] WILLS OF MAEEIED WOMEN. [§ 788 required for the due execution of wills in all other cases. By the 46th section^ exclusive jurisdiction is given to the surrogate of the county to take the proof of last wills and testaments. It would be absurd to suppose that the • legislature, after having specially provided for the execution of a power by de- vise by a married woman, intended to leave the devise /wnc^ws officio, null and void for the want of power in the courts to carry it into effect. § 786. I am therefore of the opinion that the decree of the surrogate, declaring that the said Elizabeth B. Wadhams was not competent to make and execute a will during coverture, and that the instrument in writing, purporting to be her last will and testament, was utterly null and void as a last will and testament of said deceased, be reversed, and that the same be remanded to the said surrogate, and that he be commanded to take probate of the said will of Elizabeth B. Wadhams, not- withstanding her coverture. § 787. An instrument which confers upon a married woman power to control and dispose of her separate estate during coverture, does not authorize her to make a testamentary dis- position of it. Neither the respondent's legacy, nor either of the others, except that of the residue, were charged upon the real estate of the deceased. The question, therefore, which we are to deter- mine, is whether a married woman, having her property settled to her separate use in the manner which was adopted in this case, could at the time this will was made dispose of her per- sonal estate by will, notwithstanding her coverture. § 788. Before the enactment of the Eevised Statutes, it was well settled that a married woman might make a will of her separate personal property, which would be valid in equity; and it was not necessary that the marriage articles, or the con- veyance by or through which she acquired the property, or by which it was settled to her own use, should express that she ' 2 R. S. pp. 66, 126, 3d ed., sec. 1 of obapter 460 of 1837. [388] § 789] WILLS OF MAERIBD WOMEN. [CHAP. XXVIII. should have power to dispose of it by will. When it was esta- blished that it was her sole property, which she had a right to hold free from the control or intermeddling of her husband, she was regarded by the Court of Chancery as a/eme sole in respect to such property, and could dispose of it by will, or by a con- veyance inter vivos, in the same manner which any other pro- prietor of such property could do. A condition might be annexed to her title, forbidding her to alienate, or to use any particular form of alienation ; but in the absence of any such restriction, she was free to adopt any method of disposing of it, which the law gave to other absolute owners, except that she was disabled from making a valid covenant or agreement as to title.' § 789. When a married woman bequeathed her separate personal property, the will did not take effect as an appoint- ment under the statute of uses, or as the execution of a power, but was the exercise of the jus disponendi which belonged to her as owner ; and it did not differ from the will of a person not under disability, except in the circumstance that the title which was created could only be asserted in a court of equity. Separate personal property in the wife was unknown to the common law, which considered the husband to be the owner of all the goods of the wife ; and hence the law respecting settle- ments to her sole and separate use, and as to titles arising out of that doctrine, was available only in the Court of Chancery. As all the personal estate in the possession of a woman vested absolutely in her husband at the moment of marriage, and all which she acquired during coverture immediately became his, the only object upon which a will of personal property executed by her could operate, would be such as had been conveyed or set- tled to her separate use, and perhaps her contingent interest in her chases in action not reduced to possession, and her chattels real. § 790. There was no statutory provision prior to the Eevised ' Peacock v. Monk, 2 Ves. Sen. 190-191, per Lord Hardwicke ; Fethplaoe V, Gorges, 1 Ves. Jun. 46 ; Wagstaff v. Smitli, 9 Id. 520 ; 1 Sugd. on Powers, 210-211 ; Jacques v. M. E. Churcli, 17 John. 548. [389] CHAP. XXVIII.] WILLS OF MAEEIED WOMEIf. [§ 792 Statutes respecting wills of personalty by married women. The legislature had re-enacted the material provisions of the English statute of wills,' and incorporated into the act the section of the English statute of frauds, which related to the attestation of wills. By our act it was declared (following the English act) that no last will and testament made by a married woman of her lands should be valid in law; and that every person might, by will in writing, give or bequeath his personal estate in the same manner as if that act had not been passed.^ § 791. The foregoing remarks will prepare us for the con- sideration of the provisions of the Eevised Statutes. As to the wills of personalty, it is enacted, "that every male person of the age of eighteen years or upwards, and every female, not heing a married woman, of the age of sixteen years or upwards, of sound mind and memory, and no others, may give and be- queath his or her personal estate by will in writing.' This is a declaration in terms, that a married woman cannot give or bequeath her personal estate by will. The prohibition is posi- tive and unqualified. Mrs. Wadhams was a married woman, having personal estate which she undertook to bequeath by this will. The will must be declared void, unless a distinction can be established between a will maintainable only in a court of equity, and one which would be recognized in the courts of law, and unless the statute prohibition can be limited to wills of the latter description. But the statute makes no such distinction. Moreover, there is none in the nature of the thing. The only will which she could have made of personalty, if there had been no prohibition, would have been of her separate property, which she held under the protection of the courts of equity in derogation of the rules of the common law, for the plain reason that she could have no other. § 792. The argument to sustain the will assumes that a feme covert might possess personal estate not given or settled to her ' 34 and 35 Henry VIII. oh. 5. M R. L. 365-367, §§ 6, 16. ' 2 R. S. 60, § 21. [390] § 794] WILLS OF MABRIED WOMEN. [CHAP. XXVIII. separate use, nor protected from the effects of the marriage by articles, and which the courts would recognize independently of the equitable doctrines to which reference has been made. But there is no foundation for this assumption. ; If the provi- sion depriving married women of the privilege of bequeathing their personal property does not extend to such property when settled to their separate use, it has no effect upon their testa- mentary capacity ; and they may, since the statute, make any will which they could have made before, or which they could make if the statute, instead of disqualifying them, had, in affirmative language, endowed them with full testamentary capacity. Such a construction would be too unreasonable to be maintained for a moment. § 793. An argument in favor of this will has been deduced from the course of decisions in respect to testamentary disposi- tions of real estate made by married women, notwithstanding the prohibition contained in the English statute of wills, and , which we have seen was re-enacted in this State (New York). It is familiar law that, notwithstanding this prohibition, a mar- ried woman was competent to appoint the uses of land where a power for that purpose had been reserved by or given to her by some conveyance competent to raise and to direct the exe- cution of such use ; or where land had been conveyed in trust for her benefit, with a like power of appointment ; and this she might do by will where the power authorized it. Wills ope- rating by way of an appointment of a use were common before the statute had authorized a devise of lands. The use was considered as a thing distinct from the land, and might be transferred by methods which would be entirely insufficient to convey the land itself. § 794. The statute of uses, passed a few years prior to the statute of wills, was designed to put an end to this distinction, by conferring upon the possessor of the use the legal seisin and ownership of the land. The manner in which the intention of the legislature was defeated by the courts forms one of the most curious chapters of the law of real estate ; but it is sufficient here to mention a single feature of this system : that one which [391] CHAP. XXVIII.] WILLS OF MAEBIED WOMEH-. [§ 796 declared that future or contingent uses might be limited upon a conveyance in fee, which would remain unexecuted until they were designated and pointed out by the party to whom the power to do so was given. When the power was executed, the person in whose favor the appointment was made became invested with the use, and instantly gained the legal estate by force of the statute.' § 795. Now, by the common law, a married woman could not dispose of her legal estate in lands without a fine or reco- very, and by the statute of wills she was expressly prohibited from devising her lands ; but as the instrument, or attorney of another, she could, both before and since the statute, convey an estate in the same manner as her principal, because the convey- ance was regarded as the deed of the principal, and not of the attorney.^ It follows that a married woman cannot in England, and could not in the United States, until the passage of the act respecting married women, in the year 1849, make a will of her real estate, except by virtue of a power, or by way of appoint- ing a use; but where she is clothed with such power, her coverture forms no impediment to the transaction.^ § 796. Though the doctrine has no particular bearing upon this case, it may be proper to mention, to prevent misapprehen- sion, that a formal conveyance to uses, or to trustees upon trusts to be executed by virtue of a power, is unnecessary; and that marriage articles by which the husband agrees that his intended wife may dispose of her real estate will be enforced in the same manner as though there had been a formal conveyance. Lord Hardwicke, in Peacock v. Monk, expressed a doubt whether a simple agreement between husband and wife would be sufficient; but the cases since that time have definitely settled the question that a court of chancery, acting upon the consciences of the parties, and considering that done which they had agreed to do, ' 3 Reeve's Hist. English Law, 365-366 ; 4 Id. 247-253-360 ; Sugden on Powers, 12-184. 2 1 Sugden on Powers, 184; Thomlinson v. Dighton, 1 P. Wms. 149. ' Peacock v. Monk, supra; Bradish v. Gibbs, 3 J. C. R. 523. [392] § 798] WILLS OF MAREIED "WOMEN. [CHAP. XXVIII. will sustain an appointment under the provisions of an ante- nuptial contract simply executory in its terms.' § 797. It is not probable that the courts of the present day would feel authorized to deal with a modern statute in the manner practised by the English tribunals in respect to the statute of uses and the statute of wills passed in the reign of Henry VIII. Mr. Sugden calls the doctrine by which it was determined that a use engrafted upon a use was not executed by the statutes, and which gave rise to the law of trusts, "an unaccountable construction;" and, speaking of the particular subject under consideration, he intimates that a married woman ought not to have been permitted to execute a power giving a complete dominion over her estate, contrary to the rule of law.'' But, besides, there is nothing in the law of personal property upon which to base such a distinction as that which separated the land from a use or a trust engrafted upon it, and enabled a married woman to devise an effectual title, though she was forbidden by the legislature to make a will of the land itself. The modern doctrine of powers and appointments to uses grew out of the statute of uses, which had no relation to personal estate ; and the subtle refinements and artificial distinctions with which the law of real estate abounded were never applied to personal property, which has always been governed by rules comparatively plain and simple. § 798. These considerations have led me to the conclusion that Mrs. Wadhams was prohibited from making the will in question, by the provision of the revised statutes to which I have referred. This conclusion is confirmed by the circum- stance that when the law respecting powers came under the consideration of the legislature, and was greatly modified, the right of a married woman to execute a power respecting lands, notwithstanding her coverture, was carefully preserved, while no similar provision was made respecting personal property; ' Wright V. Callogan, 6 Brown's P. C. 156 ; Eippon v. Dawding, Amb. 565 ; Bradish v. Gibba, supra. » Vol. i. pp. 10-184 [393] CHAP. XSVIII.] WILLS OF MAEEIED WOMEir. [§ 801 by whicli it seems to follow that the prohibition so often re- ferred to is left unqualified.' § 799. I have not been unmindful of the dicta of Chancellor Walworth in Strong v. Wilkin^ and Moehring v. Mitchell.^ The present question did not arise in either of these cases; and what was said by the learned chancellor, though entitled to that re- spectful consideration which his opinions always deserve, was purely ohiter. The precise question has been considered by Mr. Bradford, in the Surrogate's Court of New York, and he came to a different conclusion from that above stated. But the will in that case, which presented this question, had been revoked by another made subsequent to the act of 1849, so that the point was not material to the final decision." § 800. I have thus far assumed that the marriage article between Mr. and Mrs. Wadhams contained a power authorizing the latter to dispose of her estate by will. Such an authority is not given in terms, and I do not find anything in the instru- ment that looks or can be understood to allude to a testamentary disposition. It is very full to the effect that she might enjoy, control, and dispose of her property during coverture, as an unmarried woman; and this, under the law as it existed before the revised statutes, would have enabled her to make this will. It is sufSciently explicit to warrant a court of equity in treating her as a. feme sole with respect to her whole estate; and the only objection to her will, as to the personalty, is the positive denial of that right by the New York Eevised Statutes. § 801. But if we could say that the inhibition were only sub modo, and that she could still make a will under a power to that efi'ect in the article, it would still be necessary to show that that instrument contemplated a disposition of that kind. The idea of a will is not embraced within the power to enjoy, manage, control, and dispose of the property during coverture. It is the ofSce of a testamentary disposition to direct the course of the succession after the death of the possessor; in this case 1 1 R. S. 732-735, §§ 80-110. » Id. 264. » 1 Barb. Ch. Rep. 9. * 1 Bradf. Rep. 120. [394] § 803] WILLS OF MARBIED WOMEN. [CHAP. XXVIII. after the coverture should be at an end. There is nothing to show that the husband was willing to confer that faculty upon his intended wife, if he had the .power to do so. The statute of 1848, which was the commencement of a new system respecting this branch of the domestic relations, does not reach the case; it does not give the power to bequeath or devise. The succeeding legislature effected that object;' but this will had taken whatever effect it has before that act was passed. The judgment of the Supreme Court should be reversed, and the decree of the surrogate afiSrmed.' § 802. Where a will is made by a married woman under a power, her executors do not takejure representaiionis, but merely under the power which she was authorized to exercise by making a will as to particular property ; consequently the title of her executors cannot extend beyond the property disposed of by her will.^ If a will of a married woman, made under a power, be ob- tained by the husband by undue influence and marital authority, contrary to her real wishes and intentions, such will will not be admitted to probate.^ So if a wife, having power to dispose of her property by will, makes her will, and afterwards destroys it by the compulsion of her husband, it may be established upon satisfactory proof of its having been so destroyed, and also of its contents and execution.' § 803. There are also other cases in which a will made by a married woman is valid without the assent of her husband, viz., where personal property is actually given or settled, or is agreed to be given or settled, to the separate use of the wife. In such a case it has been established, since the case of Fettiplace v. Gorges," that she may dispose of it as a feme sole to the full > Laws of 1849, p. 528 ; see also the statute of 1860. 2 See 2 Keman's New York Reports, 418-425. 3 Tugman v. Hopkins, 4 N. & Gr. 389. * Marsh v. Tyrrell, 2 Hagg. 84 ; Mynn v. Robinson, 2 Hagg. 179. 6 Williams v. Baker, Prorog. Tim. Term, 1839. 6 1 Ves. Jun. 46 ; 3 Bro. C. C. 8, S. C. [395] CHAP. XXVIII.] ^ WILLS OF MARRIED WOMEN. [§ 804 extent of Her interest, although no particular form of doing so is prescribed in the instrument by which the settlement or agreement was made. The principle on which that decision is founded is this : that when once the wife is permitted to take personal property to her separate use as a/eme soh, she must so take it with all its privileges and incidents, one of which is the jus disponendi} And this rule prevails without regard to the circumstance whether the property be in possession or reversion.^ "When she has such a power over the principal, it extends also to its produce and accretions, e. g. the savings of her pin- money.^ Nor does it make any difference whether the property be given to trustees for the wife's separate use, or without the intervention of trustees to the wife herself for her own separate use and benefit,^ for in the latter case a court of equity would decree the husband to stand as a trustee to the separate use of the wife.' If a wife acquires property after her husband's death, it can- not pass by a will made during her coverture, though by the consent of her husband ; for at the time of making the will, she was intestable as to that property .° If a feme soh makes her will, and afterwards marries, such subsequent marriage is a revocation, and entirely vacates the will; and although she should survive her husband, a will made before the marriage will not revive upon his death, with- out a republication.' § 804. As it often occurs that the will of a married woman is made in pursuance of an agreement before marriage, or an agreement made after marriage for a consideration, the wills of ' Peacock v. Monk, 2 Ves. Sen. 191 ; see Thos. on Ex'rs, p. 51, for many others. 2 Sturgis V. Corp, 13 Ves. 190 ; Headen v, Roslier, 1 Med. & Y. 89 ; Roper on Husband and Wife, 184. 3 Gore V. KnigM, 2 Vern. 535 ; Herbert v. Herbert, Preo. Ch. 44 ; 1 Eq. Ca. Abr. 66-68. * See tbe Judgment of Sir John NiohoU, in Braham v. Birchell, 3 Add. 263. ^ Tappenham v. Walsh, 1 Phillim. 352, and the authorities there cited ; Rolfe V. Buader, Bund. 187 ; see also Parker v. Brooks, 9 Ves. 583 ; Ibid. 375. ' Scammel v. Wilkinson, 2 East. 556 ; Swinb. Pt. 2, s. 9, pi. 5. ' Post. Pt. 1, Bk. 11, oh. iii. § 4. [396] § 806] WILLS OF MABEIED WOMEN. [CHAP. XXVIII, married women made under sucli circumstances are regulated by the same rules as those made by a married woman by virtue of a power; concerning which it is deemed advisable to refer to the several treatises on that subject, instead of attempting to discuss all the doctrines applicable thereto.' A feme covert who, under a marriage settlement, has a power to sell, mortgage, or devise in fee, real estate settled to her separate use, does not exhaust her power by mortgaging such estate, but may still devise or alienate the estate, subject to the mortgage.' A power to appoint by any writing in the nature of a will or other instrument under hand and seal, executed in the pre- sence of two credible witnesses, is well executed by a mortgage thereunder, though it contained no express reference to the power.' § 805. It must still be remarked that a testamentary appoint- ment of such a nature by a wife cannot now be made available, either at law or equity, without probate ; and the proper course now is to grant probate wherever the will professes to be made and executed under a power, and is made by one whose capa- city and testamentary intention are clear, leaving the construc- tion and legal effect of the appointment to such courts as may have anything to do therewith. This is now the practice in Kentucky.'' § 806. Now, by the late English statute of wills,' it is ex- pressly re-enacted that "the will of a woman made prior to marriage shall be revoked by her marriage, except'when the will is made in exercise of a power, and the property, in default of appointment, would not vest in the heir, executor, or next of kin." ' Sugden on Powers, chap. iil. ; 2 Roper, chap. xix. ^ Asay V. Hoover, 5 Barr, 21. ^ Lancaster v. Dolan, 1 Rawle, 231. ■* Molly Yates' Will, 2 Dana ; Prisoilla Keller's Will, 5 B. Monroe ; also in New York American Home Missions v. Wadham & Parmallee, 10 Barb. 597. ^ 1 Victoria, chapter xxyi. section 18, virtually re-enacted in Kentucky, by section 9, chapter on wUls, Ky. Revised Statutes of 1852. [397] CHAP. XXVIII.] WILLS OF MAEBIED WOMEK. [§ 808 "Williams on Executors* says this obviously puts to rest all questions as to implied revocations by marriage and the birth of issue, by thus positively enacting that marriage alone shall be an absolute revocation of a will with respect to those within its operation. It may not apply to every instance of implied revocation by a mere change of condition in the testator, be- cause it has been held that the concurrence of marriage is not essential for the presumption of revocation in all cases.^ § 807. So it seems that a will made by the wife prior to the year 1838,^ under a power, is not revoked by the marriage, in whatever manner the property may be limited in default of appointment. This point was well considered in the case of Logan v. Bell* There real estate belonging to the wife was conveyed to a trustee and his heirs, to the use of the wife and her heirs until the marriage, and until after the solemnization of the marriage to the use of such person, &c., as the wife, notwithstanding her then intended or any future coverture, and whether she should be covert or sole, should by deed, will, or codicil, to be executed as therein mentioned, appoint, and in default of appointment, to the trustees and their heirs in trust, for the wife's separate use during the joint lives of herself and her husband ; and after the decease of either of them, to the use of the wife, her heirs and assigns. Two days after the settlement, and two days before the marriage, the wife made a codicil disposing of the ests^tes. § 808. And it was contended that the codicil was revoked by the marriage, or at all events the power could only be exer- cised after the solemnization of the marriage. But it was held that the codicil was not revoked by the marriage, Tindall, G. J., remarking that the exception in the act of 1 Victoria, 26, s. 18, ■ Side page 166. 2 See Wins, on Ex'ors, side p. 161. ' And before 1 Vie. chap. xxvi. sec. 18. " 1 C. B. 872; 14 Law J. N. S. C. P. 276; see also the remarks of Lord Kenyon, in Doe & Hodsden v. Staple, 2 T. R. 864 ; Taylor v. Rains, 7 Mod. 147 ; Stone V. Forsyth, Dougl. 681, 683, n. ; but see the remarks of the M. R. in Douglas V. Cooper, 3 M. & K. 381. [398] § 809] WILLS OF MARRIEB WOMEN. [OHAP. XXVIII. which excepted from the enactment making marriage a revo- cation of a will made by a woman under a power of appoint- ment, when the estate would not in default of appointment pass to her heir or next of kin, assumed that before the act a woman's will, under a power of appointment, would not be revoked by her subsequent marriage. As to the question whether the power in the settlement authorized an appointment before mar- riage, he observed that the nature of the uses which the wife was to have the power of limiting, and the terms of the power, rendered such an appointment a more effectual execution of the power than an appointment after marriage. But where a power applies only to an appointment made after the marriage, a will made before that time will not be supported. § 809. Thus, in the case of Doe & Hodsden v. Staple,' A., in contemplation of a marriage with B., signed a paper writing without seal or stamp, which, after reciting the intended mar- riage with B., her future husband, and that she was entitled to considerable real and personal property, stated that it was agreed that her fortune should be settled to their joint use for her life, or the life of the survivor ; and that if she survived, her whole fortune, together with her plate and jewels, should be settled to her own use ; and that «/" she died first, then that her fortune shoiold he at her own disposal. B. signed a duplicate of the paper ; on the same day A. made her will, duly executed to pass freehold property, giving the interest of her fortune to B., her intended husband ; and after specific devises (but not, mentioning the reversion in the premises), she gave her estate and residuary effects to B., whom she appointed executor. On the same day the marriage was solemnized, and A. afterwards died before B. without issue. The question was between B., the husband's devisee, and the heir of A., who claimed the pro- perty under the presumption that the will of A. was revoked by her marriage ; and so the court determined ; for as the will was made before the marriage it was revoked, and it was not supported by the agreement, which was not a deed for want of ' 2 T. R. 684; see Hodsden v. Lloyd, 2 B. C. C. 534. [ 399 ] CHAP. XXVIII.] WILLS OF MAEEIED WOMEN. [§ 811 a seal, so that it could not operate as a covenant by the husband to stand seised to uses. Ashurst, J., observed that the agree- ment referred to an executory act, and not to the will made prior to the marriage; he said it might have been a great doubt whether it could have been agreed that the marriage should not revoke the will, even if there had been words for that pur- pose, because it would be a stipulation in direct opposition to a positive rule of law.' § 810. In Massachusetts, the Supreme Court of Judicature held " that a feme covert cannot, even with the consent of her husband, devise lands to exclude her heir ; but she may dispose of chattels or money with his assent, for he alone is interested to question her authority."^ In the same case it was also held that if the wife make a will during her husband's lifetime, and does not republish it after his death, it is not valid to pass her estate. In the case of the Newburyport Bank v. Stone, ^ the same court held that a contract by indenture entered into between a man and a woman and a trustee, in contemplation of marriage, in which the man covenanted that his wife might during the coverture make a testamentary disposition of any sum of money or personal effects, not exceeding a certain amount, being less than he afterwards received by the marriage, and that he would afterwards pay over to her executor, in six months after her decease, the amount so bequeathed, was a valid contract as against creditors of the husband. § 811. In the same case it was held that a testamentary paper executed by the wife after the marriage, giving " all her estate, real and personal," meaning all that portion reserved and secured to her own disposal by certain articles of agree- ment (referring to the indenture), was held to be a valid ap- pointment, and that the use of the term " real estate" did not vitiate the appointment, so far as it was well made pursuant to the power. The court also held that a conveyance of land to the executor ' 1 Lord fiaym. 616. ^ Osgood V. Breed, 12 Mass. 525, 532. ' 13 Pick. 429. [400] § 813] WILLS OF MARRIED WOMEN. [CHAP. XSVIII. of the wife by the husband, at its fair value, was equivalent to the same amount in money.' § 812. The Supreme Court of North Carolina, in the case of Wood V. Bullock et al.,^ seem to have held that where a woman before marriage, and previous to her marriage, and after the making of her will, conveyed all her real and personal property to trustees, who, upon her husband's death, reconveyed it to her, the will remained uncancelled at her death ; and it was held good as a will of real as well as personal estate, without a repub- lication.^ In Newlin v. Freeman,'' the same court held that a married woman can only make an appointment in the nature of a will of real estate, under a power of appointment specially given in some deed, and that appointment the courts of equity have alone the jurisdiction to determine on and enforce ; but that a married woman, by her husband's consent, can make a will of her personal property. Also held that where he has covenanted in a marriage set- tlement that she may make such will, but withholds his consent from the particular will she makes, it is still good as to personal property : sufficient at least to repel his right of administering, and to authorize granting administration to her appointee. Such appointment must be proved as a will in the proper court for such purposes. § 813. It cannot be made available as a will in equity, without having first been established as a will in a court of probate." After such probate the Court of Equity has jurisdiction, to see that the instrument is of that kind by which the feme may dispose of her property." When before probate a bill is brought to enforce the alleged will it must be dismissed, and the court will not retain it to > 13 Pick. 426. a Taylor, Ch. J., dissentiente. 2 3 Hawk's Reports, 298 (1824). * Iredell, 514 (1841). 5 Whilfield V. Hurst, 3 Iredell's Equity Reports, 242 (1844). " Ibid. 26 [401j CHAP, XXVIII.J WILLS OF MAREIBD WOMEN. [§ 815 give the party an opportunity of propounding the will in the Court of Probate.i § 814. In Blunden v. Bough,^ Jones, Berkley, and Croke, Js., said that where a woman, lessee at will, marries, or where a single woman grants a lease at will, and then takes a husband, although she has placed her will in his hands, yet the marriage shall not be considered a determination of it, without the elec- tion of the lessor or husband to the contrary. A submission to arbitration will be revoked, if a party, a single woman, marry before the award ; and it will make no difference if the arbitrator afterwards make his award without notice of that event.' And where the submission was by deed, with a covenant to abide the award, it was held that the marriage was a breach of the coveaant, as it incapacitated the arbitrator from making an effectual award." § 815. In Bridges v. the Duchess of Ghandos," the Lord Chancellor states it as a principle which is not shaken in authority, "that any new disposition made subsequent to the will, or, ia other words, any conveyance of that which had been conveyed by the will, shall defeat the will ; but then it must be a conveyance of the whole estate ; it must extend as far as that appointment which the will has made — for if it be but a part, it affects the will no further than that part goes. In this case part only of the property devised and bequeathed is dis- posed of, consequently those parts of the will which remain are untouched. There is no impossibility, as in Cooper's estate,* to give effect to the disposition of the will. In Marshall v. Marshall,' it is held, that when the alteration in the testators circumstances is such as to render it impossible to execute any part of his will, as in Cooper v. Cooper, it will be considered as > 3 Iredell, 342, and seq. ; contra Ross v. Ewer, 3 Atk. 160. » Cro. Car. 304 ; Co. Litt. 55, &o. ; Henstead's Case, 5 Kep. 10 S. P. ' 1 Bac. Ab. 706, 7th ed. ; MoCann v. O'Ferrall, 8 CI. & F. ; 1 West's Appeal C. 693. * Charnley v. Winohanley, 5 East, 266. 6 2 Ves. Jr. 428. ^ 4 Barr, 88. ' 1 Jones, 430. [402] § 817] WILLS Of maeried women, [chap, xxviii. entirely revoked. But when it can be partially executed, the revocation is pro ianto merely as to that part which cannot be carried into effect.'" § 816. So if a devisor, after the execution of a will, purchases land which would be included in the general description of land devised by the will, it is no revocation of the will, either in whole or in part.* To the same effect is the case of Cooper's estate,^ in which testator seised of Whiteacre and Blackacre, directed his execu- tors to sell Whiteacre for the payment of debts, funeral expenses, and certain legacies ; the residue of his property of all kinds, after the payment of the said legacies, he gave to certain other legatees. Afterwards he sold Whiteacre and received the pur- chase money; and dying, his personal property barely sufficed to pay his debts, leaving nothing for the legacies first named. Held, that under the circumstances the testator intended by the sale of Whiteacre to revoke his will as to everything but the appointment of executors. § 817. "The general rule is that when, after making a will, the testator executes any legal conveyance of the devised pro- perty, the will is revoked. And this view of the principle of revocation is in accordance with the authorities, some of which will be cited. Thus, in Hones v. Humphrey,* the testator in his lifetime, and subsequent to the making of his will, con- veyed by deed a part of the estate devised. Per curiam. To the extent of those conveyances there is a revocation pro tanto, and nothing more. In order to defeat altogether a testamentary disposition, there must be a subsequent conveyance of the whole estate. If the conveyance be of a part only, it will only amount to a revocation pro ianio." ' Balliot's Appeal, 2 Harris, 451 : opinion per Rogers, J., p. 459 ; and see also the cases cited in the argvuuent of counsel, 455, 457. ' Blandin v. Blandin, 9 Vermt. 210 ; and see Carter v. Thomas, 4 Greenl. 341 ; Hall u. Axay, Coxe, 212 ; Parkhill v. Parkhill, Brayt. 239 ; and McKaig V. Clark, 2 Taylor, 278 ; Hawes v. Humphrey, 9 Pick. 350 ; and Brush v. Brush, 11 Ohio, 287 ; Jackson v. Ireland, 3 Wend. 99, and cases there cited ; Girard's Heirs v. City of Philadelphia, 2 Wall. Jr. 301 ; opinion of Grier, J., pp. 305-9. 3 4 Barr, 88. ■• 9 Pick. 350. [403] CHAP. XXVIII.] WILLS OF MAEBIED WOMEN. [§ 819 Brown's Appeal was the case of au appeal from the decree of a judge of probate, disallowing a certain instrument offered for probate as a last will. The testator, subsequently to exe- cuting his last will, had alienated all his real estate, as here, and had written on his will the following words : " It is my inten- tion at some future time to alter the terms of the above will, or rather to make another will ; I desire the foregoing to be con- sidered revoked and of no effect." This was not attested as required by the statute to revoke a will of real estate. Held, by the court, " that if a testator devises both real and personal estate by a will duly attested, and by an alienation of real estate revokes the will pro ianto, the will then stands as a will of personalty only, and is revocable accordingly by any writing sufficient to make a will of personal estate." § 818. In Carter v. Thomas,' the question was whether the will of Joseph Thomas was revoked, he having devised part of his real estate to his daughter, and the residue to his two sons, whom he also made residuary legatees, and afterwards having in his lifetime sold and conveyed the same to one of his sons by deed, the Supreme Court on appeal held, the alienation of real estate by the testator, after he has devised the same by will, is a revocation of the will only as to the part thus alienated. The will being supposed to remain uncancelled, evinces that his intention was unchanged with respect to the other property devised or bequeathed.' § 819. A man seised of two tracts of land nearly equal in value, and possessed of personal estate, devised one tract of land to one child, and the other to the family of the other child, and gave a pecuniary legacy to an illegitimate grandchild. He afterwards sold one of the tracts, and incurred debts which swept away the other, and died, leaving no more estate than was sufficient to pay his debts, and the legacy to his illegitimate grandchild. Seld, that these circumstances did not amount to an implied revocation of the whole will. ' 15 Pick. 388. ' 4 Greenl. 341. » See Wogan v. Small, 11 Ser. & R. 141. [404 J § 821] WILLS OF MAERIED WOHEN. [OHAP. XXVIII. In Jones v. Hartley,' it was held that a conveyance in trust for -the payment of the debts of the grantor, and then to revert to him, is not such a disposition of the estate as to revoke a previous will. The court says i " Being then a complete aliena- tion of the real estate after the date of the will, it is a revocation of the wiU so far as it relates to the property thus conveyed."^ § 820. By this kind of revocation a will may be revoked in whole or in part. Thus, the owner of a slave by his will declared that she should be manumitted and have her freedom immediately after his decease. The testator afterwards sold her as a slave, and died. It was held that the sale of the slave by the testator was pro ianio a revocation of the will, so that she was not entitled to her freedom after his decease.' See also same principle applied in the sale of real estate in re Cooper's estate." Numerous cases on this subject are to be found in the Ame- rican books. It was held in one case that the conveyance of a lot in fee, mentioned in a will, was a revocation of the will pro ianio, though the grantor reserve a ground rent.' But it has been subsequently held in Pennsylvania that such a ground rent must be considered as after-acquired property, and under the tenth section of the act of 1833 pass under a general devise.* It has been held, however, that a conveyance of land in trust to pay debts, and then to revert to the grantor, is not a revoca- tion of a previous will.' § 821. In the United States, the question whether parol evi- dence to show declaration of the testator that he intended the will to stand and to rebut the presumption of revocation implied by the law from the change of condition, appears not to have ' 2 Whart. 103. ' See also to the same effect Coates v. Hughes, 3 Bin. 498 ; 2 Vern. 720 ; 2 P. Wms. 333 ; Rider v. Wager. ' Matter of Nan Miekel, 14 John's Rep. 324. * 4 Barr, 88-99. 5 Skerret v. Burd, 1 Whart. 246. « Mullook V. Louder, 5 Watts & Serg. 198. ' Jones V. Hartley, 2 Whart. 103 ; Girard v. The City of Philadelphia, Kawle, 323 ; opinion per Gibson, C. J., 334-338. [405] CHAP. XXVIII.] WILLS OF MAEEIED "WOMEIS-. [§ 822 arisen or been mucli discussed. The case of Brush v. Wilkins' was as follows: The testator, a man of large fortune, made his will married, and subsequently died, leaving his wife enceinte; first, however, having begun a second will with the declaration that "all former wills were revoked," and making provision for the unborn child, which second will was never finished. It was held by the Chancellor that these circumstances were an implied revocation, and he appears to have entertained no doubt that, if necessary, the declaration of the testator might have been given in evidence to sustain the presumption of law. On page 516 he says: "The presumption of revocation is increased by the second will, which begins with a declaration that all former wills were revoked, and in which provision is made for the child of which the mother was then enceinte. If declarations of the testator be admissible in any case (and they were admitted by Sir John Nicholl in the Ecclesiastical Court), and if the evidence of circumstances is to be received at all (and all the cases seem to agree in this), here are decided cir- cumstances to show that the testator did not intend to leave his son destitute." § 822. When, therefore, to the very respectable authority for this doctrine in England in the more recent cases, the great name of the eminent Chancellor be added, it would seem that it is rather more entitled to confidence than is the contrary opinion. Certain it is, that it appears the more consonant to reason. The whole doctrine of revocation, from a change in domestic condition, is built upon implication — upon a supposed intention or natural desire upon the part of the testator to change his dispositions in accordance with the change in his relations. This presumption of the law draws as consonant to the natural equity, and in lieu of any declaration of intention upon the part of the testator. Why should it then refuse to receive those very declarations of intention which it has already supposed ; or, on the other hand, to admit those which would rebut its first conclusions? It has been argued that to admit ' 4 John's Ch. Rep. 506. [406] § 824] WILLS OF MARRIED WOMEN. [CHAP. XXVIII. such declarations would be to elude the provisions of the statute of frauds ; but it will be remembered that when the doctrine of presumptive revocation was first advanced, it was opposed, and forcibly too, upon that very ground. Can the declarations be opposed upon the same footing ? If the first objection be un- tenable, is not the other equally so ? The subsequent declara- tions go to support the will, which, a formal writing, having the force of a common assurance, must, but for such support, give way to presumptions of law, more or less strong. The general rule in other cases is, that legal presumptions arising from parol may be repelled by parol evidence. § 823. Why should not the rule be applied in the present case, when here, of all others, the object is to ascertain the intention of the testator ? It is said that after marriage, and the birth of issue, and consequent implied revocation of the will, to admit parol evidence of the testator's declarations would have the eftect of republishing the will by parol, which, at least as regards real estate, cannot be done under the statute of frauds. But this mode of argument assumes the question, in asserting that t?iere is already an implied revocation. It is well settled that marriage and the birth of a child alone are not enough to cause a presumption of revocation ; that frequently other cir- cumstances are needed. If then these circumstances be want- ing — if, on the contrary, there are express declarations leading to an adverse conclusion — how can it be held that the revoca- tion is accomplished, or that the law is absolutely forced to presume it? It would seem to be more just to conclude that where such ingredients to an implied revocation are wanting, the full presumption of revocation does not arise.^ § 824. Germain to this are gifts, donatio mortis causa, or inter- vivos. A gift from a husband to his wife, either as a donatio mortis causa, or as a donatio intervivos, to her separate use, must be established by evidence beyond suspicion.' In this case the opinion of the court was thus given: "In McLean v. Longlands,' the court was of opinion that the evi- ' See 2 Greenl. on Ev. § 684, text and oases in notes. * Walter v. Hodge, 2 Swanston, 97i ' 5 Ves. 71. [407] CHAP. XXVIII.] WILLS OF MAEEIED WOMEN, [§ 825 denoe was not sufficient, even for sending the question to an issue- but if no gift could in any circumstance be valid, it would have been unnecessary to inquire into evidence." The Master of the Eolls there states the general doctrine thus : " The only point on which I entertain any doubt is as to the gift ; but I do not think there is sufficient ground to direct an issue. Nothing less would do than a clear irrevocable gift, either to some person as a trustee, or by some clear and distinct act of his, by which he divested himself of his property, and engaged to hold it as a trustee for the separate use of his wife." § 825. Such is the general doctrine in the latest cases on this subject. I forbear to advert to others, which determine no more than this : that a wife may in this court acquire property to her separate use during coverture, and her husband may be a trus- tee for her; as in the instance of gifts by strangers, of which Lea V. Pricaux' is an example. In Lucas v. Lucas,^ Lord Hard- wicke says: "In this court gifts between husband and wife have often been supported, though the law does not allow the property to pass."* On another occasion the same judge refers more particularly to the case of the Countess Cowper, before Sir Joseph Jekyll, in which several trinkets were given her by Lord Cowper in his lifetime, and determined to be her separate estate* The case of Slonning v. Styte* arose on savings of the wife's pin-money, which her husband had borrowed ; the court held that by the permission of her husband she had acquired it to her separate use, and declared her a creditor on his assets. In Eich V. Cockell,° Lord Eldbn, not carrying the doctrine farther than the preceding authorities, represents it as "perfectly settled that a husband may in the Court of Chancery be a trustee for the separate use of his wife."' The case mentioned in the former argument certainly seems to have proceeded on a contrary supposition. In Miller v. Miller,' Sir Joseph Jekyll says : "The gift of £600, contained ' 3 Bro. C. C. 381. ' 3 P. W. 334. 2 1 Atk. 270. « 9 Ves. 369. ■' 1 Atk. 271. '9 Ves. 375. « 3 Atk. 393. 8 See Harvey v. Harvey, 1 P. W. 125. [408] § 827] WILLS OF MARRIED WOMEN. [CHAP. XXVIII. in the bank notes, was a donatio causa mortis, which operates as such, though made to awife, for it is in the nature of a legacy.'" And in Lauson v. Lauson,'' the Master of the Eolls observed that "the delivery of the purse was good, and must operate as a donatio causa mortis, et res valeat, &c., because otherwise one could not give to his own wife.'" § 826. It is unnecessary to cite many of the texts which esta- blish that by the common law a husband or wife cannot give to each other without the intervention of trustees. "A man," says Littleton, " may not grant nor give his tenements to his wife during the coverture, because himself and wife are but one person in the law," &C.'' Upon which Coke's commentary is : "This opinion is clear, for by no conveyance of the common law a man could during the coverture, either in possession, reversion, or remainder, limit an estate to his wife." All the cases in this court proceed on the ground of exceptions intro- duced here : as the cases of paraphernalia, trinkets, or savings of pin-money. In the single case of £1000 South Sea annuities transferred by the husband into the name of his wife in his lifetime, the court thought that so decisive an act, as amounted to an agreement by the husband that the property should be- come hers.® That seems to come under the description stated by Lord Alvanley;' it is an act ; a clear ^nd distinct act by which the husband divested himself of his property.' § 827. " The single question, therefore, in applying this doc- trine to a particular subject, would be whether the claimant had satisfactorily established a distinct act of the husband, by which he divested himself of the property and agreed to hold it as trustee for the wife ? In this case the claim, as stated by Mrs. Hodge in her answer, is most suspicious : it is merely the claim of a widow, setting up, after the death of her husband, a gift by parol, without the intervention of any third person. The court expects satisfactory evidence of an act constituting ' 3 P. W. 357. = Co. Litt. 112. 2 lb. 441. 8 Lucas v. Lucas, 1 Atk. 270. ' lb. 442. ' 5 Ves. * Sec. 168. 8 See also Turpin v. Thompson, 2, 9, P. Metoalf, 421 ; 2 Kent, 447 ; 3 Atkyn, 214. [409] CHAP. XXVIII.] WILLS OF MAERIED WOMElf. [§ 828 a transfer of the property, and sufficient transmutation of pos- session. Here it is not changed : the possession of the wife is the possession of the husband. It would be an important ques- tion, whether, proposed in this way, without any distinct act, such a claim could be good ; but that is not the point here. The claim is distinctly contradicted by the deposition of Alice Mason, who was present, and states that it was not an imme- diate absolute gift, but expressly limited to take effect only in case of anything happening to the husband. The defendant and the witness directly contradict each other, one stating a gift absolute and imttiediate, the other postponing it till death. To which is the court to give credit? Can it be said that here is that satisfactory evidence which should induce the court as a precedent to establish, after the death of the husband, a gift by parol in his life ? I cannot say that the gift is proved to my satisfaction, and the exception must be allowed." § 828. In Ward v. Turner," where the bill was to have a transfer of £600 new South Sea annuities, made to the plaintiff as executor of John Mosely, and to have certain specific parts of the personal estate of William Fly, died intestate, delivered or made over to the plaintiff. Another prayer of the bill was, to have an account of what was due to Mosely for services per- formed to Fly, against whose estate this demand was made. The case the plaintiff made was this : he was executor for Mosely, who was related to Fly by affinity, having married his aunt. That Fly had great obligations to Mosely, who took care of him in his infancy, and to his house Fly used to come from school when it broke up. Afterwards Mosely, who toward the latter part of his life appeared to be in very mean circum- stances, lived with Fly as his servant, until the death of Fly ; he had his food there, performed service for him, and had occa- sionally a shilling given him. From thence Fly made profes- sion of a strong interest in him, and promised to provide for him at his death ; in pursuance of which, as Fly drew near his end, he made Mosely several donations mortis causa, in prospect of death. Four times were fixed on by the witnesses, of which ' 2 Ves. 431. ■ [410] § 829] ' WILLS OF MAEBIED WOMElir. [CHAP. XXVIII. several were examined in the cause, speaking of actual gifts, and declarations supporting them. First, 18tli of January, 1746, wHch was spoken to by the porter of Furnival's Inn. The second, 6th of February, 1746, which was the principal proof relied on by the plaintiff to support the gift of these annuities, and was proved by Fly's barber, who, being sent for by Fly, found Mosely with him, and no other, and swore to the parti- cular words used, and declaration made : that Fly said to him', viz., "I intended to give him (speaking of Mosely) Longford estate for life ; but I have considered of it, and that which is worth £40 a year to another, is not worth so much to him ; for if the tenants wanted an abatement for repairs he would allow it, and therefore I will do better for him." That thereupon Fly went to his escritoire, and taking three papers, said : " I give you, Mosely, these papers, which are receipts for South Sea annuities, and will serve you after I am dead." The third, 23d of February, which was proved by one who swore that in his presence Fly said : "Mosely, I give you all the goods and plate in this house." Fourthly, 3d of March, by the said barber, who swore that Fly declared to him and to another person, who only were present, that he gave to Mosely all his household goods, money, arrears of rent, and everything that should be found in his house, except his sword, gun, and books, and that this, together with these three receipts, would make £2000 ; that he wished a gentleman of his acquaintance had his sword and gun, but all the rest he gave to Mosely. He died April following. § 829. These were argued to be so many declarations of bounty, supported by so many witnesses at different times. Two questions arose : first, whether in fact these things were given? secondly, whether properly given in point of law? Donations mortis causa are derived from the civil law. Justi- nian's Inst., lib. 2, tit. 7, shows the nature of them ; and that in general anything is subject matter of such donations, that may be the subject matter of a legacy or donation intervivos. Either rights in possession or reversion are capable of being so given. It is not necessary that the donor should have a legal interest; an equity will do when by no act he can pass the legal pro- perty ; consequently the formalities accompanying such dona- [411] CHAP. XXVIII.J WILLS OF MAEEIED WOMEX. [§ 831 tion must be according to the subject of a gift. Livery then cannot be always necessary, as in a chose in action or simple contract debt, whicli lie not in livery : choses in action were not assignable, but now are in this court as much as things in pos- session, by the rules of law ; and, therefore, this court will carry into execution a voluntary gift of a chose in actioti. In Lauson V. Lauson,' such a gift of a note drawn on Goldsmith, which in point of law passed nothing, was held good." § 830. In Snellgrove v. Bailey,' Mrs. Bailey, going out of town in a bad state of health, gave her maid a bond executed to her by a third person, saying: "If I die, it is yours." She died intestate ; the plaintiff was her administrator ; thus it stood in the defendant's answer. A bill being brought for the disco- very and delivery of the effects of the intestate in the hands of the defendant, the question was whether the nature of the pro- perty was capable of being so given ? Lord Hardwicke held it might, as well as a specific chattel ; though no legal property passed thereby, nothing but the paper, a bond being evidence of a debt, and the intent being to give the debt, not the paper, the court held it a good donation mortis causa, comparing it to the property which passes by assignment of a bond, which passes nothing in point of law, and the assignee must make use of the other's name for recovery of it. That case rested «ingly on the averment in answer; in this is strong evidence. The court there put the case: that if a chattel in possession had been bought by the intestate, and a bill of sale made to a trustee for her use, the property would have been in the trustee, and the equitable interest in the cestui que trust, who, if she had given this chattel so circumstanced to the defendant, it would have been good. Lord Hardwicke. This is a case put upon an equitable interest. Then the chattel itself must have been delivered. §831. Though these donations differ in some respects from testamentary dispositions, yet they participate in a great degree ' 1 P. Wms. 441. So in 2 Metoalf's Ky. Rep. 421, see. 826, ante. 2 Jones V. Selby, Preo. Ch. 300 ; Gold v. Rutland, 1 Eq. Ca. Ab. 347. 3 3 Atk. 214. [412] § 832] WILLS OF MAERIEB WOMEN. [OHAP. XSVIII. like ttat ; it is a declaration of his mind what he will have done with his property when he is no more ; he does not part with the property, or even the use of the thing, in his life ; for that would prevent any such disposition from being ever made. Where the thing lies in livery, the livery is not made to com- plete; it is only evidence of the gift; and if, the moment after possession delivered (with a declaration that he, ititended, if he died, it should be the donee's absolutely ), the thing was restored by the donee, that would not tend to defeat the gift. Lord Hardwicke said, I apprehend it would ; and that such an instantaneous gift and taking back would not do, which it would be dangerous to admit. § 832. But where livery cannot be the best evidence the nature of the transaction will admit of, being only to show the mind of the donor, will do. Here is such a delivery over, as is sufficient evidence of the gift of these annuities. They certainly lie not in livery, there being other ways of passing them. There is no evidence of them, but one's name being placed in the book. The delivery then, with strong words of gift of these receipts, which were the only symbol of his property, was as much as he could possibly do toward giving it, except a mere transfer in the books, which was not necessary; nor could he conveniently do that; it was giving with a prospect of not recovering of that particular illness, for that of itself would be a revocation ; but he died of it, and within two months of the gift. In cases of livery of seisin it is not necessary to deliver the thing itself, or any part ; for coming upon the land, and delivering a gold ring thereon, is enough,' though not partici- pating of land ; but there ought to be a clear proof of the intent, which there is here. Next, as to the specific things, it is said there was not suflBcient possession delivered; but in such a number of things, it is not necessary every one should be deli- vered. The subject of the gift is what was then in the house. If a delivery is absolutely necessary, the plaintiff has not indeed proved it ; but Mosely was actually in the house with him, and it was then as much in possession as if actually delivered to him, which is not necessary, if he is in possession. ' 1 Inst. 44. [413] CHAP. XXVIII.] WILLS OF MABEIED WOMEK. [§ 835 § 833. If one is recited to be in possession of a house, livery- is not necessary. If one does as much as he can toward pos- session, it is all that is required— as delivery of the key of a warehouse, so of a piece of parchment, delivery of a ship and of the actual possession of it to the mortgagee, as determined by your lordship in Brown v. Williams. No more could be done here ; for he could not carry the goods out of the house, and he was then in possession. However, as thi& is a bill for discovery of assets, if the plaintiff is not entitled to these gifts, he is at least to a reasonable satisfaction for his services. § 884. On the part of the defendant, administrator of Fly, there was no evidence to impeach the evidence of the gift, but- to invalidate it to a certain degree, principally from the beha- vior of Mosely after the death of Fly, as not like one who thought he had a right to these donations from him, for it was sworn, that being at the house of Fly at his death, he continued there until midsummer ; he did not say these goods were his own upon application made to buy them, but that they were Turner's, the administrator and next of kin ; sent to Turner, desiring him to take them away; that they were sent away, and Mosely assisted in packing them up, and declared that he would not go into mourning, for that Fly had given him nothing that he could help. A donation mortis caiisa (though there is indeed such a thing in law) is of a very delicate nature, and from its import merely voluntary. Lord Chancellor. Such donations are subject to debts. § 835. If there is no distinction between testamentary dis- positions and such a donation, and there is a former will, the statute of frauds will be overturned, which relates to all wills of personal estate ; therefore, since the statute, no nuncupative will or codicil can be set up where a will was made before. The statute has expressed an anxiety as to nuncupative wills, not taking them away absolutely for fear of breaking in upon the real intent, but seeing them liable to uncertainty, litigation, and perjury, has put several restrictions on them ; whereas, if the said distinction is not observed, a nuncupative will may take place, proved at any time, and that by a single witness, where more than one would not be ventured, for fear of contra- [414 J § 837] WILLS OF MARRIED WOMEN. [CHAP. SXVIII. diction, and that at any distance of time, nor confined to £30, as the statute required. § 836. A testamentary disposition is a gift in case of and only has operation after death. A donation, then, cannot be in general in case of death, but must have something peculiar, dif- fering from legacies. The characteristic of it is this : It is not on a general apprehension of approaching mortality, but where the particular recovery of the donor is annexed by way of de- feasance to the gift, which would be otherwise absolute. It may be confined to an immediate illness ; but the Eoman law puts the case of a man's going a journey, which was formerly more hazardous than now ; so, if going to battle, and in case he is killed, and makes that gift; so if under a bad state of health he makes a complete gift, if he does not recover ; that must mean some circumscribed time or illness, and there must be some sort of defeasance, arising from the recovery or return home, to these donations, otherwise it is an absolute gift. But, though liable to be defeasanced, it must be a complete gift be- fore intervivos ; and that is the reason the Ecclesiastical Court has no probate or jurisdiction over it, as it would if testamen- tary. § 837. Next, to consider what is meant by delivery, in the Eoman and civil law books, as far as admitted in this country ; for as it is in all the books it will not hold here. Where deli- very is necessary to make that complete intervivos, if a man said, "I give it," and there is no delivery, it would be nudum pactum; there could be no title or action. Then delivery is there put only to show that the gift must be complete. In that new species of property, the actual delivery is supplied by that which is equivalent to a delivery, as in case of a ship delivered by bill of sale, which is defeasance in case of recovery ; that is enough ; but it must be complete, according to the nature of the thing, otherwise it cannot be distinguished from a legacy. A delivery is necessary, according to Swinburne, in each of the three instances he puts, of a donation mortis causa. Lauson V. Lauson' turned upon it, and could not be admitted but on ' I P. Wms. 441. [415] CHAP. XXVIII.] WILLS OF MAKEIED WOMEN. [§ 838 that foundation. There cannot indeed be such a donation by parol, of a book or simple contract deed, or of arrears of rent, because there can be no delivery, and no inconvenience, be- cause it may be easily done another way. Taking it in case of a specific thing, as a horse, &c., possession is altered (as Swin- burne supposes), and then the donee shall enjoy it ; otherwise there is no difference between this and a testamentary disposi- tion. This donation, therefore, takes effect ; but still liable to that contingency. There is no case that the donor must keep possession in his life ; how then can he have the use or benefit of it, taking it to be a specific thing ? As to a chose in action being allowed to be given, that was a new case before your lordship : for Snellgrove v. Bailey,' which was of a bond, was the first ever determined of anything of a chose in action. The reason the court went on there was, that it was as complete a gift as could be made of a bond ; for writing not being neces- sary to the assignment of a bond, if all was delivered that could be, all that was required was done. It was a substantial gift of the paper and seal, without which there could be no recovery on it. A bond carries the debt itself, not only evidence or security of it, therefore, is considered as bona notabilia, and not only where the party dies, like other choses in action, and a court of equity does not say a bond must be delivered by deed in writing. § 838. In Eichard v. Syms,^ on a gift of mortgage to the mort- gagor, by giving him the deeds your lordship held, that if that fact was proved, it was a gift of all the money on the securities, and not within the statute of frauds. So that the bond there is as completely given as can be, supposing that parol evidence is sufficient, and writing unnecessary. If that was not the ground of that determination, and no delivery requisite, but that it is to remain with the donor until his death, and only a formal delivery, it will not differ from the inconveniences intended to be guarded against by the statute of frauds; for then every loose declaration will be set up, notwithstanding solemn wills before executed. It is dangerous to support parol declarations 3 Atk. 214. 2 Barnard's Ch. Rep. 90. [416] I 840] WILLS OF MAREIED WOMEN. [CHAP. XXVIII. upon gifts of this kind, not accompanied witli a visible act to give notice to all the world as delivery. And the statute has thought it better that some of these gifts should fail (as has fre- quently happened for want of the solemnities thereby required) than there should be a public inconvenience. If a common chose in action cannot be delivered, how can this, which is stronger, as it is capable of being assigned by a proper transfer? If, indeed, one goes as far as he can, the court will, perhaps, sup- ply it ; as in those cases on the Stat. Jac. 1 ;* but that is not the case here, Ely was a man of business, an attorney, yet waits near two months without doing that which would effect- uate it. The argument of the testator's having time to make a perfect gift is often used in Doctor's Commons on imperfect wills. This court will never support that as a donation which may be a gift by will, for there must be a difference between them. § 839. Lord Chancellor Hardwicke, in the outset, laid the other goods out of the case, of which there was no pretence of any delivery, which would be very dangerous ; and that it was impossible to make such a complex donation mortis causa, as a general bequest of all one's personal estate, or of a residue, without some proof of delivery ; for that would be the same as a nuncupative will ; and it was a pity the statute of frauds did not set aside all these kinds of gifts." But what weighed with him was, whether the stock without delivery was a good dona- tion mortis causa; which question, considering the vast propor- tion of property in such funds, was of infinitely greater conse- quence than the value of it ; therefore he should not determine it hastily. If courts of justice were compelled by rules of law to suffer such gifts, without any transfer, to prevail, it could not be helped; but then the statute of frauds, relative to nun- cupative wills, would be so far nugatory and vain. Having taken time to consider, his lordship delivered his opinion. § 840. Lord Chancellor Hardwicke. Here are two general questions : What is the weight and strength of the evidence 1 Eyall V. Eoules, 1 Ves. 348. * See Prince v. Hazleton, 20 Johnson Rep. 27 [417] CHAP. XXVIII.] WILLS OF MARRIED WOMEK. [§ 841 in point of fact? Next, the result of that evidence in point of law, or the law arising on this fact ? As to the first, and as to the conviction arising therefrom, there is very strong evidence on the part of the plaintiff, of Fly's general intention of bounty, which is not to be disputed ; but as to evidence of the particular gifts I cannot help taking notice that the declaration relied on by the plaintiff to prove them are all made to persons of extremely low degree — his porter, barber, &c. It is observable also that Fly was bred an attorney, had some property, some real estate ; was a man of business, and must be presumed, from his profession and edu- cation, to know something of what the law required to make a will ; and certainly it would have been more easy for him to have made a will in writing than to have taken all these several steps to give away these parts of his estate. It is likewise observable that the behavior of Mosely, and his declarations after the death of Fly, are some impeachment and weakening of the plaintiff's evidence ; for it is extraordinary that if he thought himself entitled he should not insist upon these goods being his own, instead of suffering them to be taken away, and assisting therein. At the same time, if I were to ground my opinion upon any objection to the evidence in point of fact, I should not determine it, but send it to be tried ; for this is as proper a case to be tried as any other. § 841. It is not insisted upon by the plaintiff" as a testamen- tary cause ; for if he was to insist on that it would overturn his demand, as he has no probate ; but it is insisted on as a dona- tion mortis causa. Trover might be brought for it, for it would transfer the property ; but though I have searched for it, I do not find a case of that kind in the books, of such an action at law; but it might be tried at law, was there a foundation for it ; and if I were to ground my opinion upon the evidence in point of fact, I would direct a trial. But according to my opinion there is no reason to give the parties that trouble ; for next, supposing the fact well proved, the consideration is the result in point of law. The relief sought is founded upon these gifts being good donations mortis causa. First, as to any specific parts (if they may be so called), [418] § 842] WILLS OF MAKEIED WOMEN. [CHAP. XXVIII. except the annuities. They are clearly not good (as I declared at the hearing), there being no pretence of any delivery in any shape whatever. They are so general, as, in my opinion, if they prove anything, to prove an intent to make a nuncupative will of all his personal estate (this is exclusive of the annuities), say- ing: "Mosely, I give you all the plate and goods in this house," or, "If I die, it is yours ;" but nothing was delivered. It is said he had possession by living in the house, and did not want delivery ; but he lived there as a servant, who had no posses- sion ; so that if a servant had them in custodyj it would be a possession for his master. The other declarations are not only of the goods, but of all money and arrears of rent, and extend almost to everything; consequently there are no grounds to carry it so far ; and it is impossible to support any of these gifts in prospect of death, as I have already declared. § 842. Next, as to the gift of this annuity. If the witnesses deserve credit, it is strong evidence of a general intent of bounty; but it rather turns against the plaintiff, for it shows a general intent to give the whole to Mosely, by making a nuncupative will or wills at different times. If that was to be admitted to support these several gifts as so many donations mortis causa, it would overturn not only the letter, but the whole spirit and intent of the statute of frauds. But, notwithstanding, suppose this gift of the annuities was just, as if it was a distinct and independent donation from the other matters insisted on as gifts, the question is whether it is such a gift as the law of England allows as a donation mortis causa f First, the fact of the gift is proved only by one witness ; whereas the civil law, from which this doctrine is taken, requires five witnesses thereto ; for Justinian, when he allowed these gifts, was apprehensive of fraud arising from them, and takes notice, in that very chapter relied on for the plaintiff, that he had made a constitution to regulate it, that it should be in the presence of five, limited in point of value, &c., which shows how jealous he was of it. Besides, the witness swears to this in very formal words ; and though it is pretty hard to object to a witness as loose and uncertain on one hand, and the contrary on the other, yet this argues either a very strong memory or a pretty strong assur- ance in swearing. But the express gift, as he swears, is only [419] CHAP. XXVIII.] WILLS OF MAEEIBD WOMEN. [§ 844 of the three receipts. This is the form of the gift Taking it, therefore, according to the substance of the gift, that this amounted to a declaration that Fly, by giving these receipts, intended to give the annuities ; upon this the principal point arises, whether delivery of the thing given by way of donation mortis causa is necessary ; and if necessary, whether this deli- very of the receipts is sufficient delivery of the thing given by way of donation mortis causa f I am of opinion that delivery is necessary to make good such a gift, and that the delivery of these receipts for the consideration money of the purchase of them was no sufficient delivery to validate this act. To clear this, it is proper to consider the notion of a donation mortis causa, according to the civil and Eoman law, and the law of IJngland. § 843. According to the civil and Eoman law there is great variety, and several passages therein are difficult to reconcile. Digest, lib. 39, tit. 6, law 88, requires that both donor and donee shall be present at the time of the gift, quo prcesens prcedenti dot; which looks as if delivery was intended at the time. It is quo there, and in several editions; but in the Lyons edition of Gothofredus Corpus it is quad, which makes it sense. Next, in Digest, same tit. parag. 1, it speaks of it throughout as a restor- ing of the same thing if the donor should recover, as if a resti- tution was to be. It is proper to take notice that in the Eoman law there were three kinds of donations mortis causa. And in Voet on the Pandect, lit. 39, tit. 6, parag. 3, in his 2d volume, p. 710, the division is agreeable to that made of these donations by Swinburne. § 844. The first is a donation by one in no present danger, but in consideration of mortality if he died ; and this is strictly compared to a legacy ; for the property was to pass at the death, not at the time. The second kind is where the property passed at the time, defeasible in case of an escape from that danger in view, or of recovery from that illness. The third was, where, though he was moved with the danger, yet not thinking it so immediate as to vest the property immediately in the person, but put it in possession of the person as an inchoate gift, to take effect in case he should die. [420] § 846] WILLS OF MAEBIED WOMElf. [CHAP. XXVIII. § 845. Vinius' comment on this place of Justinian is more particular ; puts the remedy by action the donor might have, in case he repented or revoked. That is, on the last kind of donation mortis causa, where he did not part from the property immediately, he should have a real action ; but where he actu- ally parted with the property, but the gift was to be defeated by his revocation or recovery, or escape from that danger he was in, conditionem haheat (which is a personal action), to make the irritancy, or to recover damages for the thing ; so that it differed not but in the nature of the action. And in Calvin's Lexicon, &c., that is the distinction. Swinburne, on the text I have quoted, implies that there should be a delivery; saying that legacies differ from such donations, for, that legacies are not delivered by the testator, but to be paid or delivered by the administrator ; putting the distinction upon the one being delivered in life, the other after death. But, notwithstanding this, several books in the civil law import the contrary ; particu- larly Vinius in his comment,' which passages show the different expression and opinions, some importing a delivery, others not. I have mentioned them to come at that which seems the distinc- tion, reconciling them all according to what is laid down by Voet, num. 6, that they did not require an absolute delivery of possession to the first or third kind of gift I have mentioned ; but in the other case, where the property was to pass imme-. diately, it was required ; which is the meaning of the expression in Voet: "In mortis causa donatione dominium nan transit sine traditione," and of that other expression in Voet. With this distinction, those passages in the civil law are properly recon- ciled. § 846. Though I know these donations mortis causa could never come directly in question in the Ecclesiastical Court, they might collaterally ; and on these two heads I inquired whether there have been any cases there upon this, viz., in suits against an administrator on account of assets by the next of kin, where the administrator had insisted he had, he could administer such ' Lib. 2, tit. 7, sec. 1, Numero 2 ; Corarruvias, voL i. sub. 3 ; and Voet on the Pandect, same chapter, num. 3, and num. 6. [421 J CHAP. XXVIII.] WILLS OF MAEBIED WOMEN. [§ 847 a part, because it was given mortis causa; or if there is a will in which there are specific legacies, and one of those legacies he had given in his life by way of donation mortis causa, there it might come in question in the Ecclesiastical Court ; but I cannot find it has. The nearest case to it is Ousley v. Carrol, Thorold V. Thorold.' Since 1722, in the Prerogative Court, before Dr. Bettesworth. There was left a writing in the pre- sence of three witnesses, not in the form of a will, but a deed, viz., "I have given and granted, and give and grant to my five sisters, and children of the sixth, their heirs, executors, and administrators, in case they survive me, all my goods and chat- tels, and real and personal estate, and all which I may claim in right of my own, whether alive or dead." The dispute was by a person claiming as his wife, and who had been so, but divorced, who insisted that this was no will, but deed of gift mortis causa (and a gift mortis causa may be made in writing, as well as other- wise, and so it might by the Roman and civil law); but the ecclesiastical judge was of an opinion this was testamentary, proved it as a testamentary act, and probate was granted, from which there was no appeal ; but a case there cited, of Shargold V. Shargold, upon a deed of gift by Dr. Pope, not to take place until death, and sixpence delivered by way of symbol, to put the grantee in possession ; that was pronounced for as a will, and not as a donation mortis causa ; which I mention to show how far the Ecclesiastical Court has considered these things as testamentary. § 847. Having considered these donations, the different spe- cies, and how far delivery is necessary by the Roman and civil law, I will consider it according to the law of England. They are undoubtedly taken from the civil law ; but not to be allowed of here farther than the civil law on that head has been received and allowed. Taking the law of England to consist (as Hob says) of rules of law and equity, it might come in question in cases of action of trover and detinue ; but I have never found any action on that head. Consider it, therefore, as in this court, the civil law not binding here, but as far as received and allowed, ' 1 Phillin, 1 ; Attorney General v. Jones, 3 Price, 365. [422] I 848] WILLS OF MAKEIED WOMEN. [CHAP. XXVIII. which must be from adjudged cases and authorities, proving that the civil law has been received in England, in respect of such donations, only so far as attended with delivery, or what the civil law calls traditio ; for which Swinburne, who being an English writer on the civil law, what he lays down is some evidence of what has been received here, part i. sec. 7 ; but in other places, sec. 6, in tit. Definition of Legacy, he is still more express. In both places, in one directly, in the other collate- rally, he lays down that delivery is necessary. Next, consider it on the resolutions of this court ; the same thing results from them. There are not many cases on this head, and they are somewhat loose. The first is Drury v. Smith,^ where Lord Cowper founded himself on this, and the possession transmitted and charged ; next Lauson v. Lauson.^ All that I can collect from thence is, that the purse was held good because delivered to the wife herself. As to the other legacy of £100 bill, I can- not say on what it depended. It is a kind of compound gift ; so many collateral circumstances are taken into it, that nothing can be inferred from it ; but being a draught on his goldsmith, that draught was delivered ; so that it does not contradict what I lay down, and there was delivery so far as it was capable. In Jones V. Selby' the result is that the opinion of the Master of the Eolls was founded plainly on this, of the delivery of posses- sion ; holding that the gift of the tally, as contained in the hair trunk, was a good donation mortis causa; and that Lord Cowper avoided determining that, on the foundation of the subsequent point of a satisfaction or ademption, on which he grounded his determination. In all the instances it is absolutely necessary to be the person's after the party's death ; though in some cases it vests the property, in others not. But to explain more fully Lord Cowper's opinion there, I will refer you back to Drury v. Smith, and to Hedges v. Hedges,'' which turned on another point ; but there Lord Cowper laid down a necessity of delivery very strongly, where he says, "testator gives with his own § 848. Snellgrove v. Baily,' determined by me 11th of March, ' 1 P. Wms. 404. " Ibid. 441. ' Free. Ch. 300. 6 3Atk. 214. « Ibid. 269. [423] CHAP. XXVIII.J WILLS OF MARRIED WOMEN. [§849 1744 was urged where a bond was given in prospect of death ; the manner of gift was admitted, the bond was delivered, and I held it a good donation mortis causa. It was agreed that there was no want of actual delivery there, or possession, the bond being but a chose in action ; and, therefore, there was no delivery but of the paper. If I went too far in that case, it is not a reason that I should go further, and I choose to stop there. But I am of opinion that decree was right, and differs from this case ; for though it was true that a bond, which is specialty, is a chose in action, and its principal value consists in the thing in action, yet some property is conveyed by the delivery; for the property is vested, and to this degree, that the law books say, the person to whom this specialty is given may cancel, burn, and destroy it ; the consequence of which is, that it puts it in his power to destroy the obligee's power of bringing an action, because no one can bring an action on bond without a profert in curiam} Another thing made it amount to a delivery, that the law allows it a locality; and, therefore, a bond is hona nota- hilia, so as to require a prerogative administration, where a bond is in one diocese and goods in another. Not that this is conclusive; this reasoning I have gone upon is agreeable to Jenk. cent. 109, case 9, relative to delivery to effectuate gifts. How Jenkins applied that rule of law he mentions there, I know not ; but rather apprehend he applied it to a donation mortis causa ; for if to a donation inter vivos, I doubt he went too far. § 849. Another case is Miller v. Miller,' which is a very strong case, so far as that opinion goes, to require delivery; which case, I believe, was hinted at as inconsistent with my decree ; but there is a great difference between delivery of a bond (which is a specialty, is itself the foundation of an action, and the destruction of which destroys the demand) and the de- livery of a note payable to the bearer, which is only evidence of the contract. Therefore, from the authority of Swinburne, and all these cases, the consequence is, that by the civil law, as ' An action may now te brought without profert. See Duffield v. Elmes, 1 Bllgh. N. S. 543. » 3 P. Wms. 536. [424] § 851] WILLS OF MAEBIED WOMEN. [OHAP. XXVIII. received and allowed in England, and consequently by the law of England, tradition or delivery is necessary to make a good dona- tion mortis causa, whicli brings it to the question, whether deli- very of the three receipts was a sufficient delivery of the thing given to effectuate the gift. I am of opinion it was not. § 850. It is argued that though some delivery is necessary, yet delivery of the thing is not necessary, but delivery of any- thing by way of symbol is sufficient; but I cannot agree to that, nor do I find any authority for that in the civil law, which required delivery to some gifts ; or in the law of England, which required delivery throughout. Where the civil law requires it, they require actual tradition, delivery over of the thing. So in all cases in this court, delivery of the thing given is relied on, and not in the name of the thing, as in the delivery of six- pence in Shargold v. Shargold ; if it was allowed any effect, that would have been a gift mortis causa, not as a will ; but that was allowed as testamentary, proved as a will, and stood. The only case in which such a symbol seems to have been held good, is Jones v. Selby ; but I am of opinion that amounted to the same thing as delivery of possession of the tally, provided it was in the trunk at the time. Therefore, it was rightly com- pared to the cases upon 21 Jac. 1, as Eyall v. Eoules,' and others. It never was imagined on that statute, that delivery of a mere symbol, in the name of the thing, would be sufficient to take it out of that statute ; yet notwithstanding delivery of the key of tally goods, where wines, &c., are, has been allowed as delivery of the possession, because it is the way of coming at the possession, or to make use of the thing ; and, therefore, the key is not a symbol, which would not do. If so, then delivery of these receipts amounts to so much waste paper ; for if one purchases stock or annuities, what avail are they after acceptance of the stock ? It is true they are of some avail as to the identity of the person coming to receive ; but after that is over they are nothing but waste paper, and are seldom taken care of afterwards. § 851. Suppose Fly, instead of delivering over these receipts • 1 Ves. 348. [425] CHAP. XXVIII.] WILLS OP MAERIED WOMEN. [§ 851 to Mosely, had delivered over the broker's note whom he had employed,' that had not been a good delivery of the possession. There is no color for it ; it is no evidence of the thing, or part of the title to it ; for suppose it had been in a mortgage in ques- tion, and a separate receipt had been taken for the mortgage money, not on the back of the deed (which was a very common way formerly, and is frequently seen in the evidence of ancient titles), and the mortgagee had delivered over this separate re- ceipt for the consideration money, that would not have been a good delivery of the possession, nor given the mortgage mortis causa, by force of that act. Nor does it appear to me by proof that possession of these three receipts continued with Mosely from the time they were given, in February, to the time of Fly's death ; for there is a witness who speaks, that in some short time before his death Fly showed him these receipts, and said he intended them for his uncle Mosely. Therefore, I am of opinion it would be most dangerous to allow this donation mortis causa from parol proof of delivery of such receipts, which are not regarded or taken care of after acceptance ; and if these annuities are called choses in action, there is less reason to allow it in this case than in any other chose in action, because stocks and annuities are capable of a transfer of the legal property by act of Parliament, which might be done easily, and if the intes- tate had such an aversion to make a will as supposed, he might have transferred to Mosely; consequently, this is merely lega- tory, and amounts to a nuncupative will, and contrary to the statute of frauds, and would introduce a greater breach on that law than was ever yet made ; for if you take away the neces- sity of delivery of the thing given, it remains merely nuncupa- tive. To this purpose consider the clauses in the statute of frauds^ relating to this, which seem to me to be applied directly to prevent a mischief of this sort. The clauses are in sections 19, 20, 21, 22,' which have very anxious provisions against dispositions of this kind, requiring three witnesses, solemn de- claration of the testator, fixing the place of making, and to be ' 21 Car. 2. c. 3. " These sections are repeated by 1 Vict. o. 26, s. 2 ; but for wills of soldiers on service, marines, or money arising from service. See sees. II and 12, and 11 Geo. 4 and 1 Will. 4, c. 20. [426] § 852] WILLS OF MARRIED WOMEN. [OHAP. XXVIII. reduced into writing in six days after making. These are in cases where no will was made. § 852. Next, comes another requisite, where a will has been made. If what the plaintiff insists on is right in point of law, that this gift of the annuities by delivery of the receipts was good, yet, though Fly had made a will before, it had been equally good notwithstanding that will, because this relates to revocation of a will in writing by anything amounting to a tes- tamentary act. It would be good against the will, as appears from the cases. "Would not that be quite contrary to the plain provision of this clause, taking away delivery of the thing? Here is then a revocation of a will by words only, viz., " This is yours when I die ;" all these clauses, therefore, will be over- turned, if such evidence is admitted. But it is said, if this is not allowed it will be impossible to make a donation mortis causa of stock or annuities, because in their nature they are not capable of actual delivery. I am of opinion it cannot be with- out a transfer, or something amounting to that ; and there is no harm in it, considering how much of the personal estate of this kingdom, vastly the greatest proportion of it subsists now in stock and funds ; and all the anxious provisions of the statute of frauds will signify nothing, if donation of stock, attended only by delivery of the paper, is allowed. It might be sup- ported to the extent of any given value, and would leave these things under the greatest degree of uncertainty, and amount to a repeal of that useful law as to all this part of the property of the subjects of this kingdom. Therefore, notwithstanding the strong evidence of the intent, this gift of annuities is not suffi- ciently made within the rules of the authorities ; and I am of opinion not to carry it further. If a doubt remains in any one's mind, I will add (what I very seldom do, though it has been done by my predecessors) that I should be very glad to have this point settled by the supreme authority ; for it clearly ought to be settled, if there is a doubt, considering so large a property of this kind. The bill ought to be dismissed, therefore, without costs, as to the demand of these annuities, or any other part of the intes- tate's estate, by way of donation mortis causa. But as there was a plain intent of bounty and kindness to [427] CHAP. XXVIII.] WILLS OF MAEEIED WOMEN. [§ 852 this old man, "wlio lived with him as a servant, and it seems in expectation of what should be given at his death, therefore, on the other part of the bill, an inquiry should be what Mosely deserved over and above his maintenance, for services performed during the life of Fly. The account should be taken from a reasonable time, if the plaintiff thinks fit to pay it. [428] § 854] WILLS. [chap. XXIX. CHAPTER XXIX. WILLS. § 853. In Campbell v. Eandon,^ where a testator devised to his sons George and Joseph, and to his housekeeper Jane, land "to them and their heirs, for their use, improvement, and equal emolument during their natural lives, and after their decease to the heirs of John Bill." Bill died in the lifetime of the testator, leaving three children, who survived the testator. One of whom, and the children of another, were the plaintiffs in this action ; the third died intestate, and without issue. Seld: — 1. That George, Joseph, and Jane took estates for life as tenants in common. 2. The heirs of John Bill took a contingent remainder in fee, vesting in interest at the death of the testator. § 854. The rule construing the word heirs used in a will, in respect to a living person as merely designatio personarum, is inapplicable to the devise of a future estate. In such case the word has its strict legal meaning, and carries the inheritance, unless a different intention appears clearly from the context. A devise to a class of persons takes effect in favor of those who constitute the class at the death of the testator, unless a contrary intent can be inferred from some particular language of the will, or from such extrinsic facts as may be entitled to consideration in construing its provisions. The death before the testator of one of the devisees for life had no effect upon the estate in remainder, except to entitle the devisee thereof to possession as soon as the will took effect. Comstock, J. The first question is, whether Joseph Bindon, George Bindon, and Jane McReady took an estate in fee in the premises in question, under the will of Joseph Bindon, Sr. The ' 4 Smith's New York Eep. 412. [429] CHAP. SXIX.] WILLS. [§855 devise was "to them and their heirs, for their use, improvement, and equal emolument during their natural lives, and after their decease to the heirs of John Bill, of the city of New York, chair- maker." In the terms here used there is an irreconcilable re- pugnancy. "Heirs" is a word of perpetuity, but it is followed in this devise by a plain and precise limitation of the estate to the lives of the devisees, and then, on tbeir decease, over to other objects of the testator's bounty. It is impossible to doubt that the testator intended to give a life estate only to those three persons. We must reject the term which denotes perpetuity, so as to give effect to other language which cannot be rejected, because we cannot suppose it to have been inadvertently used. The terms cutting the estate down to one for life could not have been used by the testator without a definite and exact design. They were inserted with care, and for the purpose which they plainly express. We, therefore, are not at liberty to disregard them, and we must hold that the first estate in the premises, created by this will, was for life only. § 855. It is, in the next place, entirely clear that the three persons named took their life estates as tenants in common, and not in joint tenancy.' On the death, therefore, of any one of the three, the limitation over to the heirs of John Bill took effect as to an undivided third of the lands in question, and when another died, then as to another third. Joseph Bindon, Jr., one of the life tenants, is still living, and, therefore, the plaintiff's can at most recover only two undivided thirds of the premises. So far we think the Supreme Court has correctly interpreted this will. There were four children of John Bill at the time the will was executed, one of whom died without issue, and three of whom were surviving at the death of the testator. Their father had previously died, and these three children had become sole heirs at the time the will took effect. They were entitled as such to take, as soon as the testator died, all the provision, what- ever it was, which the will made for the heirs of John Bill. A devise to a class of persons takes effect in favor of those who ' 1 R. L. 54, § 6 ; 2 Jarman on Wills, 117. [430] § 857] WILLS. [chap. XXIX. constitute that class at the death of the testator, unless a con- trary intent can be inferred from some particular language of the will, or from such extrinsic facts as may be entitled to con- sideration in construing its provisions.' § 856. The most important question in the case is, whether the limitation over to " the heirs of John Bill," was in fee or in life estate only. Two of the precedent life estates had termi- nated before this suit was commenced. One of them had not; Joseph Bindon, Jr., being still alive. If, therefore, the limita- tion was in fee, the plaintiffs are entitled to recover two undi- vided thirds of the premises, because the plaintiffs altogether represent the entire interest embraced in the limitation over. If for life only, then none of the plaintiffs can recover at all, except Mrs. Batey, and she can recover only one-third of the two-thirds, equal to two undivided ninth parts of the premises ; and this portion is recoverable only for her life. She is the only surviving child of John Bill ; the other two, who were living at the death of the testator, having subsequently died. The plaintiffs, other than Mrs. Batey, are their representatives ; but have no interest, unless their ancestors took an estate of inheritance under the will. Mrs. Batey is entitled to one-third of two-thirds, because the three children living at the testator's death took the entire provision made for the heirs of John Bill. The decision appealed from gives her only one-fourth of two- thirds, and in this respect is inaccurate, even if it be correct in holding that life estates only passed under that provision. § 857. But was the limitation over, in favor of " the heirs of John Bill," in fee or of a life estate only? The testator died in 1832, and the will was executed in 1819. This question must, therefore, be determined without reference to the Revised Sta- tutes, which, as to wills executed in future, changed the rule of construction, in this respect, as it existed previous to 1830.^ According to that rule, a devise, in order to pass a fee, must contain express words of inheritance, or there must be some other language or provision of the will, expressive of an inten- ' 1 Jarman on Wills, 285, 287. 2 1 R. S. 748, § 1. [431j CHAP. XXIX.] WILLS. [§ 858 tion to create more than a life estate.^ It is probably true that in nearly all the cases of general devise, where the rule has been applied, the actual intent of the testator has been violated. But the rule, nevertheless, has been settled by an unbroken series of adjudications, and it lies at the foundation of many titles. To a question of this character, therefore, the maxim "store decisis'" has a forcible and peculiar application. _ We are of opinion, however, that quite consistently with this rule, a fee was intended to pass under the limitation now in question. The argument in opposition to this conclusion is based upon three propositions: 1. John Bill being alive at the execution of the will, could have no heirs, in the strict and technical sense of the term. 2. By the use of that term, therefore, the testator must have intended the children of John Bill, and hence the devise is to be construed as though the children were named. 3. It was, therefore, a general devise in favor of designated persons, without words of perpetuity, and consequently created a life estate only, according to the rule of construction which has been mentioned. § 858. As no one can be the heir of a living person, and as the persons who will be heirs are uncertain while the ancestor lives, a devise to them as heirs, in the proper sense of the term, it is said, cannot take effect, and is, therefore, void. This is obviously so if the devise be of a present estate, which must vest, if ever, as soon as created. There being no determinate object of the bounty, or ascertained person to take the devise, the attempt to create the estate of necessity fails. It is for this reason that limitations in wills in favor of the heirs of a living person, and recognized in the will as living, have been construed to mean appointments in favor of the children of the ancestor named, or his descendants, or the par- ticular persons who would be his heirs if be were then dead. There being no heir according to the true meaning of the term, and as the devise would not otherwise take effect, the testator has been reasonably supposed, in such cases, to refer to a deter- minate class of individuals living and in his contemplation at ' Harvey v. Olmstead, 1 Comst. 483 ; Olmstead v. Olmstead, 4 Id. 56 ; Ed- wards V. Bishop, Id. 61. [432] § 861] WILLS, [OHAP. XXIX. the making of his will, or who might be living at the time of his death. These ascertained individuals have, therefore, been deemed the objects of the bequest, although described only as the " heirs" of an ancestor still alive." § 859. Such a construction is obviously the true one in the cases to which it has been applied. But it is a construction which imputes to a testator a loose and inaccurate use of lan- guage, and is not to be resorted to where the reason on which it is founded entirely fails. It is a rule, in the interpretation of wills, that the testator is presumed to use technical words in their strict and technical sense, unless there is something in the context indicating that he has used them in a different sense.* Now, the reason for a special and peculiar interpretation of the word "heirs" fails altogether where the limitation is of a future estate. § 860. A devise of a future estate to the heirs, in a strict sense, of a living person, is a valid limitation, because the estate is not intended to vest until the termination of the present estate created by the same will. Devises of this sort constitute, at the common law, a well-known class of contingent remain- ders, the contingency residing in the very fact that the persons described as heirs are uncertain while the ancestor is living.' This species of limitation is also very clearly recognized in our own revision of the law of real estate. The statute" declares future estates to be "vested or contingent." "They are vested when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate. They are contingent whilst the person to whom or the event upon which they are limited to take effect remains uncertain." § 861. To uphold a devise of this kind, it is quite unneces- ' 2 Jarman, 13, 14 ; 1 Eq. Cases Abr. 214; Carne v. Rook, 4 Moore & Payne, 862. 2 2 Jarman, 1, 2 ; Harvey v. Olmsted, 1 Comst. 489, per Gardiner, J. » Greenl. Cruise, tit. Rem., ch. 1, §§ 19, 20 ; 4 Kent, 208 ; 2 Bl. Com. 170 ; Peame on Rem. 509 j Eiohardaon v. Wheatland, 7 Mete. 169. < 1 R. S. 723, § 13. 28 ■ [433] CHAP. XXIX.] WILLS. [§ 862 sary to impute to the testator any inaccurate use of the word "heirs." The very contingency upon which the estate depends implies that the word is used in its strict and primary sense. It was an inflexible rule of the common law that a remainder must vest at the moment, if not sooner vested, of the determina- tion of the precedent estate, or else it would not vest at all. A remainder created in favor of the heirs of a living person could not vest unless the ancestor died before the happening of the event on which it was to vest, because while he should live the persons appointed to take the estate as his heirs were unascer- tained. The uncertainty of his dying before the time should arrive, or event should happen, on which the remainder was to vest, was, therefore, the very contingency which characterized the estate as a contingent remainder.' Such estates were thus liable to be defeated by circumstances arising subsequent to their creation, but the validity of the limitation was never questioned. § 862. If we apply these principles, there would seem to be no difficulty in the present case. The will in question first gives life estates to three persons as tenants in common. It then gives a remainder to the heirs of John Bill, who was alive when the will was made. Eegarding the limitation from that point of observation, the remainder was contingent, because the heirs could not be ascertained until the death of their ancestor, and he might be living at the determination of the life estates. The estate might, therefore, be defeated according to the rule before mentioned, of which the testator was doubtless entirely ignorant, and which has, since this will was made, been abro- gated by statute.'^ But the limitation itself was in the precise form recognized in the books as creating a contingent remain- der in favor of the heirs of a living person, according to the strict and primary meaning of that word. We are bound, therefore, to suppose that the testator used the word in such a sense, and that he intended to create such an estate, there being nothing in the context to suggest a different interpretation of his language. ' Peame on Eem. 3. sir. g. 725, § 34. [ 434 ] § 863] WILLS. [chap. XXIX. We thus without difficulty reach the conclusion that the remainder was in fee. The word " heirs" was not used syno- nymously with "children," or "descendants," or to designate any class or number of ascertained persons. John Bill having at the date of the will four children, they would, in the ordi- nary course of nature, be his heirs, and the testator had a just expectation that they would be the actual recipients of his bounty. But if all the descendants of Bill had died before him, the estate in remainder, by force of the term used, would have gone to his collateral heirs. That term included all, how- ever remotely, of kin, who could inherit from him at his death, and not only all those, but also the heirs of his heirs forever. " The word heirs is nomen coUectivum, and it is the same to say heirs of J. S., as heir of J. S. and heirs of that heir, for every particular heir is in the loins of the ancestor, and parcel of him.' So in Coke's Littleton' it is said, "hceredum appellatwne venient hoeredes hceredem in infinitem."^ In Mandeville's case* the devise was to Eoberge, the widow of John De Mandeville, and to his heirs born of her. It was held that Eoberge took a life estate only, and that a fee tail passed by the term "heirs" to the son of De Mandeville, and on his death without issue to his daughter. § 863. Indeed, the familiar rule in Shelley's case' may be referred to in illustration of the force and effect of the word "heirs" in limitations of this kind. According to that rule, a conveyance or devise to a man for life, and then to his heirs, passed a fee to the ancestor. An exact construction would give him only a life estate, and the remainder to his heirs as purchasers. But the rule in that case united the fee, given in terms to the heir, to the life estate of the ancestor, and regarded the whole as vested'in him, thus forming an admitted exception in the creation of contingent remainders.^ But for the preva- lence of that rule, much contested and questionable as it was, it was always conceded that a limitation to a person for life. ' Burohett v. Durdett, Skinn. 205, per PoUexfen. ' 9, a. ' See also 2 Jarman on Wills, 2, 3, 4. » Coke's Littleton, 26, b. » Coke, 93. ' Fearne, 28, 29. [4351 CHAP. XXIX.] WILLS. [§ 865 with remainder to his heirs, would give a fee to the latter by purchase, without any other words of perpetuity ; and the struo-gle was between the rule and the contingent remainder — in other words, between the fee in the heir and the fee in his ancestor; it being never doubted that the limitation to the heir created an estate in fee in one or the other. But the rule in Shelley's case, of course, did not and could not prevail where, as in the will before us, the precedent estate was not given to the ancestor, but to some one else. In such cases the fee, there- fore, vests in the heir, as it would have done in all cases of devise for life, and then over to heirs, but for the intervention of that rule. For the reasons stated, and without examining the question in any other respect, we are satisfied that the three children of John Bill, who were his sole heirs at the death of Joseph Bin- don, the testator, took a fee in the premises. This fee was limited by the will, as a contingent remainder to the heirs of Bill generally, whoever they might be. At the death of the testator it became a vested remainder in those three children, because their ancestor being already dead, they were then his ascertained heirs. The estate vested in interest immediately, and would vest in possession as soon as the life estates termi- nated. § 864. The death of George Bindon before the testator died had no effect upon the estate in remainder, except to entitle the heirs of Bill to actual possession of one-third of the premises as soon as the will took effect. It is possible that the remainder over, as to this one-third, might have been defeated if Bill had survived the testator, because in that event the heirs or persons entitled to take would not have been ascertained, and conse- quently the remainder would have been contingent in respect to this share, without any precedent estate created by the will to support it. The devise of a life estate to George of course failed by his death before that of the testator ; but the very terms of the will carried the remainder to the heirs of Bill, and as they were ascertained when the will took effect, it vested at once, not only in interest, but in possession. § 865. It appears that after the death of the testator, a judg- [436] § 865] WILLS. [CHAP. XXIX. ment against him was revived hy scire facias ; that execution was issued, and the premises sold by the sheriff, who executed a deed therefor. The defendants are in possession under tbat title. But the only parties on whom the scire facias was served were the two surviving life tenants, Joseph Bindon, Jr., and Jane McBrady. The judgment, execution, and sale, there- fore, had no effect upon the estates in remainder. On this point the statute is decisive. It provides' "that where any judgment or recovery shall be revived against any real estate by writ of scire facias, the right of any person therein, not made a party to such suit, shall not be impaired or affected by such revival, unless he claim title from the tenant of such real estate, who was duly made a party thereto." We think the legislature, in passing this statute, intended that execution should not be had upon the lands of a deceased judgment debtor without a scire facias, to which all persons having an interest, and intended to be affected thereby, must be made parties by service of the writ upon them. The judgment must be reversed, and a new trial granted. ' 2 R. S. 677, § 5. [437] CHAP. 2XX.] CONSTEUCnON OF WILLS. [§ 867 CHAPTER XXX. CONSTRUCTION OF WILLS. In Allan and Wife v. Yanmeter's Devisees,^ where the facts attending a devise are such as to exclude the primary meaning of the words, or where the object of the testator's bounty or the subject of disposition is described in terms applicable indifferently to more than one person or thing, parol evidence of extrinsic facts is admissible to determine whether the inten- tion of the testator is certain in any other sense of which the words are capable, in reference to the facts ; or to identify the person or thing referred to in the will.^ But where the words used in reference to the subject of the gift comprehend several objects, parol evidence is not admissible to exclude from the description one or more of them, on the ground that it was not intended to include them ; this intention must be sought for in the words of the will. Nor is such evidence admissible for the purpose of ascertaining and giving effect to a secret intention inconsistent with the words themselves, or restrictive of their natural and legal meaning. § 867. It is well settled that the evidence of extrinsic facts is admissible in aid of the exposition of wiUs ; but this evidence must be such as explains what the testator has written, and not what he intended to write ; not in explanation of what the tes- tator intended, as contradistinguished from what his words express, but as to what is the meaning of the words he used. It has been long established that a reversion in fee, however remote, and though clearly not in the contemplation of the tes- tator, passes by general words in a will, even though there are other lands to satisfy the words of the devise. ' 1 Meto. Ky. Rep. 264. 2 1 Ves. & B. 422. [438] § 869] CONSTRUCTION OF WILLS. [OHAP. XXX. § 868. Duvall, J. It is now well settled that evidence of extrinsic facts is admissible in aid of the exposition of wills, although they are by the Kentucky statute required to be in writing, and are for that reason peculiarly within the general principle which excludes parol evidence which tends to contra- dict, add to, or explain the contents of written instruments. But this extrinsic evidence must always be such as, in its na- ture and effect, simply explains what the testator has written, and not what he intended to have written. In other words, the question in expounding a will is not what the testator actually intended, as contradistinguished from what his words express, but what is the meaning of the words he has usedP Keeping in view this important distinction, which has been expressly recognized by this court,^ there is but little difficulty in applying the rules of law regulating the admission of ex- trinsic evidence in cases of this sort. These rules are laid down with great precision by Wigram, in a work devoted exclusively to an examination of this perplexing subject, and to which re- peated reference has been made by counsel on both sides. Such of those rules as relate to the point under consideration are found in the first, second, and fifth "propositions of Wi- gram," and are as follow : — § 869. "1. A testator is always presumed to use the words in which he expresses himself according to their strict and primary acceptation, unless from the context of the will it appears that he has used them in a different sense, in which case the sense in which he thus appears to have used them, will be the sense in which they are construed. "2. "Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, and where his words so interpreted are sensible with reference to extrinsic circumstances, it is an inflexible rule of construction that the words of the will shall be interpreted in their strict and primary sense, and in no other, although they may ]pe capable of some popular or secondary interpretation, 1 Gwillln V. Gwillin, 5 B. & AdoL 129. ' Wheeler's Heirs v. Dunlap, 13 B. Monroe, 292. [439] CHAP. XKS.] CONSTEUCTIOIf OF WILLS, [§ 870 and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered." "5. For the purpose of determining the object of the testa- tor's bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to de- termine the quantity of interest he has given by his will." § 870. Now it has been already shown that there is nothing in the context of Vanmeter's will from which it can be inferred that he used the words in which he expressed himself in any other than their strict and primary sense. The question then arises, are the words so interpreted sensible with reference to the persons and things described in the will ? They certainly are. The objects of the testator's bounty, as designated in the residuary clauses, are his sons ; the subjects of disposition are the whole balance of his land, and the whole balance of his estate. The language is perfectly free from ambiguity, and perfectly sensible in its application to the "extrinsic circumstances." The inflexible rule of construction, therefore, demands that it should be interpreted in its strict and primary import, and in no other, although the most conclusive evidence of an intention to use it in a different sense may be tendered. There is nothing in the rule laid dowu in the fifth proposi- tion, when understood as limited by the two former, and as expounded and illustrated by the author, which conflicts with these principles. The whole effect of the rule is, that where the facts of the case are such as to exclude the primary mean- ing of the words, or where the object of the testator's bounty or the subject of disposition is described in terms which are applicable indifferently to more than one person or thing, in both these classes of cases parol evidence of material extrinsic facts is admissible to enable the court to determine whether the intention of the testator is certain in any other sense, of which the words, with reference to the facts, are capable ; or to enable the court to identify the person or thing referred to in the will. [440] § 872] OONSTE0OTION OF WILLS. [OHAP. XXX. For illustration : the word child, strictly speaking, means a legitimate offspring ; yet it has been applied to an illegitimate offspring, where the circumstances of the case made it impos- sible that the testator (who must have had some meaning) used the word in such strict and primary sense.' And where a man devises his manor of S., and it is made to appear that he has two manors of that name, parol evidence is admissible to enable the court to determine which of them he intended to give. § 871. But the case before us involves no question of primary and secondary meaning of terms, nor of patent or latent ambi- guity. It is the case of a clear and plain gift of all the balance of the testator's lands, and of all the balance of his estate, to his sons. The property in contest constituted a part of the lands and estate then owned by the testator, and is necessarily embraced by the words of the devises, in their natural, legal, and ordinary signification. And, as was said by this court in Mitchell v. Walker,' "we know of no case in which it has been held that where the words used in describing the subject of the gift com- prehended several objects, such (parol) evidence is admissible to exclude from the description one or more of them, on the ground that they, or some of them, were not actually intended to be included. In such case the intention is to be sought for in the words of the will; and although parol testimony may sometimes be resorted to for ascertaining the intended sense of the words, it cannot be resorted to for the purpose of ascertain- ing and giving effect to a secret intention inconsistent with the words themselves, or restrictive of their natural or legal import." This is the true principle deducible from all the authorities on this subject, and is conclusive of the question under con- sideration. The effect of the proof offered in this case is, not to explain the sense of ambiguous words, or to apply them to doubtful and uncertain objects or subjects, but to establish a secret intention, independent of, and inconsistent with, the words themselves. § 872. It results, from what has been said, that the fact so ' WUkinson v. Adams, 1 Ves. & B. 422. ^ 17 B. Mon. 66. [Ml] CHAP. XXX.] OONSTEUCTIOIT OF WILLS. [§ 873 confidently relied on in the argument, that the testator did not know he owned the estate in controversy, would not of itself restrict the operation of the words of the will, or prevent the estate from passing under it. The point has been expressly and repeatedly decided by this court. In the case of Darnall, &o., V. Adams,' it was proved that the testator believed his inte- rest in certain slaves ceased with his own life, and of which he therefore supposed he had no power to make any disposition by will ; yet it was decided that the property being his, and a part of his estate, passed by the broad terms of the residuary devise. And in Wheeler's Heirs v. Dunlap,' the court refused to con- sider the parol evidence introduced to show that the testatrix only claimed, and did not suppose that she had a right to any more than a life estate in the land, upon the ground that the fact offered to be proved afforded no aid in ascertaining the meaning of the language used, inasmuch as that meaning had to be arrived at from indications furnished by the will itself. In the more recent case of Mitchell «;. Walker,' the same doctrine is expressly recognized, and the adjudged cases relied upon by the appellants as favoring the principle they contend for are elaborately reviewed. The case, especially, of Doe on Demise of Yessey v. Wilkinson, &c.,'' is critically examined, and the remark of one of the judges, to the effect that if the testa- trix "were not aware of her power, she did intend to give that which she was not aware she could give, and then the law gives it to the heir, and we cannot take it from him," is characterized as, at most, but an obiter dictum, and not a judicial decision, even by one judge. § 873. A reference to the English authorities upon this point is deemed unnecessary, as they tend to the same conclusion. Nor need we dwell upon the obvious consequences which would result from the principle contended for. The only purpose of a residuary clause is to pass all the estate not disposed of by the other provisions of the will, and to allow proof in such cases that the testator did not know, or had forgotten, that he 13 B. Mon. 273. " Supra. ' Supra. « 2 Term R. 197. [442] § 875] CONSTRUCTION OP WILLS. [CHAP. XXX. owned certain property ; and to decide upon such proof that this property did not pass by the words of the devise in which it was clearly and plainly comprehended, would be to offer a premium to perjury, and to let in all the evils intended to be guarded against by the statute, which requires that these final and solemn dispositions shall be made only in writing. The effect would be, also, in a majority of cases, to defeat the actual intentions of the testator. In the very case before us it is not denied that the testator intended an inequality in the disposi- tion of his estate, as plainly appears upon the face of the will. § 874. An infant may be appointed executor, how young soever he may be, and even a child in ventre sa mire, who is considered in law, to all intents and purposes, as actually born, inasmuch as when such is so appointed, if the mother bring forth two or three children at that one birth, they are all to be admitted as executors. But if an infant be appointed sole executor, by statute 38 George III. c. 87, s. 6, he is altogether disqualified from exercising his office during his minority, and administration cum testamenio anneom shall be granted to the guardian of such infant, or to such other person as the Spiritual Court shall think fit, until such infant shall have attained the age of twenty-one years. This act only applies in case of an infant being sole executor ; for if there are several executors, and one of them is of full age, no administration durante minore cetaie ought be granted, for he who is of full age may execute the will.' § 875. It has been said that if it be a female infant who is made executrix, and if her husband be of age and assent, it is as if she were of age, and her husband shall have execution of the will; and in Prince's case, it was resolved by the justices of the Common Pleas, that if administration be committed during the minority of the executrix, and she take a husband of full age, then the administration shall cease. But this has since been doubted.* A married woman may be appointed an executrix, and, ac- ' See Williams on Exeoutorg, p. 189, and tlie authorities there cited. 2 Ibid. [443] CHAP. XXX.] 0ONSTRUCTIO]Sr OF WILLS. [§ 876 cording to the common law (in -whicli there is no distinction between women married and unmarried, but the wife may sue and be sued alone), she may take upon herself the probate without the assent of her husband. But by the law of England husband and wife are considered but as one person, and as having one mind, which is placed in the husband, as most capable to rule and govern the affairs of the family; therefore the wife can do no act which may prejudice the husband, with- out his consent. Consequently the wife, by our law, cannot take upon herself the office of executrix without the consent of the husband. Therefore it seems that where a wife who is made executrix is cited in the Spiritual Court to take upon her the executorship, and the husband appears and refuses his con- sent thereto, if afterwards they proceed to compel her, a pro- hibition will be granted. § 876. But if the wife administer, though without the hus- band's privity and assent, and then an action be brought against them, they are estopped, it is said, from pleading that she was not executrix. "Yet, perhaps," adds the author of the ■ Office of Executor, "this administration of the wife against the husband's mind will (as against him) be a void act; else I can- not see how the opinion before cited, viz., that the wife shall not be executrix without or against her husband's mind, can be law." On the other hand, if the husband of a woman named execu- trix would have his wife to take upon her the execution of the will, and to prove the same, and she will not assent thereto, in this case the Spiritual Court will not fasten the executorship upon the wife against her will. But if the husband, though the will be not proved, administers as in the wife's right, though without her consent, she will thereby be so far bound and concluded as that during his life she cannot decline or avoid the executorship. But after his death she may refuse, if she has never intermeddled with the administration. A dis- tinction is taken between a woman made executrix during her coverture and the case of a/eme sole made executrix, who takes a husband after the testator's death, before either proving or refusing to prove the will ; for in the latter case, she marrying before her determination, does upon the matter deliver it into [444] § 878] CONSTRUCTION OF WILLS. [CHAP. XXX. her husband's hands, and if he administers, this is such an ac- ceptance as will bind her, and she can never afterwards refuse.' § 877. If a feme sole, being executrix or administratrix, wastes the goods of her testator or intestate, and then marries, her hus- band is liable, as long as the coverture lasts, for the devastatit; but upon her death his liability ceases. Such being the prin- ciple of law, courts of equity have held that they could not establish any rule upon the difference whether the husband had or had not received a portion with his wife. It must, however, be observed, that if the wife was entitled to any choses in action which the husband did not reduce into possession in her lifetime, so that it becomes necessary for him to take out administration to her, he will be liable as her admi- nistrator for her devastatit, by virtue of the statute 38 Car. II. With "respect to the devastatit of the wife committed during coverture, the husband is liable, in law and in equity, as long as both parties are alive, for the acts of his wife as executrix or administratrix; for as she has no power to act alone, his assent will be presumed ; and it has been held that the husband, though living separate from the wife, shall be charged with her devastatit. So if an executrix and her husband admit assets in answer to a bill filed against them, the assets become a debt of the husband in respect of this admission, and may be proved under a commission of bankruptcy issued against him. § 878. Upon the death of the wife, the general rule is that the liability of the husband (except as her administrator) for the wife's devastatit committed during coverture, as well as before, ceases. Therefore no proceeding can be had, either by action of debt on a devastatit, or by a scire fieri inquiry against the husband of an executrix, if she dies after a judgment had against her and her husband de bonis testatoris. Yet if a general judgment be had against the husband and wife testatrix, either upon the scire fieri inquiry, or in the action of debt, and after- wards the wife dies, the husband shall be charged. But in equity the surviving husband is liable for whatever ' Williams on Executors, &c., p. 191. [445 CHAP. XXX.] OONSTRITCTION OF WILLS. [§ 878 assets came to the hands of his wife, or into his own hands, during the coverture, upon the principle that all persons com- ing into possession of property bound by a trust are chargeable in equity as trustees. The cases establishing this head of equity are collected and commented upon by Lord Eedesdale, in his elaborate judgment in Adair v. Shaw,' in which case his lord- ship held, that where a feme covert obtains administration, and the goods are wasted during coverture, and the husband dies, his assets are chargeable in equity with the waste committed during coverture. Accordingly, in Clough v. Bond,'' on the death of an intestate, administration to her son and daughter. The daughter being then under coverture, the assets were, in May, 1831, paid into a banking house, to the joint account of her husband and her brother, the administrator; and the whole of the fund, with the exception of the share of the next of kin, who were abroad, was soon afterwards paid away among the several parties entitled, by means of checks signed by the two persons in whose names the accounts stood. The husband of the administratrix died in December, 1831, and ten months after- wards her brother and co-administrator drew out the balance, and having applied it to his own use, absconded. It was held by Sir L. Shadwell, V. 0., and afterwards by Lord Cottenham, that the estate of the husband of the administratrix was ame- nable for the loss. In this case the deposit was held to have been an improper one, and to have amounted to a devastatit of which the husband was the author, inasmuch as by depositing the money in his own name and that of the co-administrator he excluded his wife, the administratrix, from possessing the control over the co-administrator which she would and ought to have possessed in the event, which happened, of the husband's death before the wife, and gave the co-administrator the abso- lute power over the fund, which enabled him to appropriate it to himself without the control of his co-administratrix. Although the husband of an administratrix may have become liable to the next of kin for the assets received by himself and wife during coverture, yet if the husband at his death makes his wife his executrix, and she possesses more assets than are 1 Soho. & Lefr. 243. 2 3 Mylne & Cr. 490. [446] § 879] CONSTEUCTION OF WILLS. [CHAP. XXX. sufficient to answer the demands of the next of kin, after paying the other debts, the estate of the husband is discharged, and therefore the next of kin cannot sue an administrator cum testa- menio annexo of the husband.^ § 879. When a devise is to the mother for life, and then to her children, the right to the remainder vests in the children as they are born ; and if any of them die before the determina- tion of the life estate, their interest vests in their heirs.^ When a testator directs property to be divided among his children at the death of his wife, to whom he gives a life estate, it is to be considered as a devise to each child in equal parts, as though it had been named (distinguished from the case of Burnsides & Wall, 8 B. Monroe'). A devise to one not expressed to be for life, will pass a fee simple title, unless there be other provisions in the will to show that a life estate only was intended to be given, and by which construction effect can be given to other parts of the will.* In Benning v. Benning's Executor,* where B. conveyed cer- tain slaves and other property to a trustee, absolutely, declaring a particular use, and then expressly gave up all his right, title, and interest, and bound himself and his heirs never to claim the property, or any of it, or the profits, at any time whatever. Held, that no implication can arise of any intention on the part of the grantor that any use should result to himself after the particular use had been accomplished, and none did result. The court said: "It is contended that this is substantially an ordinary trust, conveying the legal title in the whole estate to the trustee, and vesting in the wife a use in the property during her life, and no longer. Conceding, for the sake of argument, that such is the legal effect of the deed, the question would then arise, what becomes of the use after the death of the cestui que use? In an ordinary case, the purposes of the trust being ac- complished, and no further use declared in the deed, it would ' See 2 Williams on Executors, side pages 1562-63-64. ^ See note, margin, Phillips v. Jolmson, 14 B. Monroe, 175. ^ Arnold's Executor v. Arnold's Administrator, 11 B. Monroe, 93. * Carroll's Heirs v. Carroll's Heirs, 12 B. Monroe, 642. 5 14 B. Monroe, 607. [447] CHAP. XXX.] OONSTBUOTIOIT OF WILLS. [§ 879 no doubt result to the grantor.' It is the intent that generally regulates and governs the use; and the grantor having expressly limited the use to a life estate, the presumption would be, that if he had intended to part with the residue of the estate, he would have declared that intention also. As, however, the use in such a case results to the grantor by a mere legal implication that he did not intend to part with the whole use, inasmuch as a particular use only had been declared by him, this implication may be repelled by other parts of the deed which manifest a difi'erent intention, and even parol evidence is admissible for this purpose.^ In this case, construing the deed in the manner contended for, the grantor conveyed an absolute estate in the slaves to the trustee ; he declared a particular use, and then expressly gave up all his right, iitk, and interest in the slaves /oret;er, and bound himself and his heirs never to claim them, or any of them, or their profits, at any time whatever. Does not this language repel all implication of any intention on the part of the grantor that the use should result to himself after the death of his wife ? Is it not inconsistent with the idea that the use was to be limited to a life estate 7 The covenant that he would never claim them at any time whatever, is wholly incompatible with the existence of an intention on his part that the use should result to himself. So far then as this resulting use is a creature of intention, grow- ing out of a legal presumption, it follows as an inevitable con- sequence, that where no such presumption can arise, no such use can result. It is no answer to this argument to say that these expressions refer merely to the estate conveyed, and mean only that the grantor will not claim in opposition to that estate. It is evident they refer, not to estate conveyed, but to the slaves themselves. The covenant is not that the grantor and his heirs shall never claim the estate or interest vested by the deed in the wife, but that he and his heirs shall never claim the slaves at any time whatever. ' 2 Story's Equity, see. 1200 ; 2 Atk. 499. « 5 Fonbl. Equity, b. 2, chap. 5, sec. 3. [448] § 880] DEVASTAVIT. [OHAP. XXXI CHAPTEE XXXI. DEVASTAVIT. § 879, a. When the husband has not by his own acts made himself responsible, he is only liable for his wife's devastavit while the marriage subsists between them, so that when it de- termines before a judgment or decree is obtained against them for the demand, his death, or that of his wife, discharges his liability. As to what proceedings at law will fix the husband with his wife's devastavit after her death, Mr. Roper remarks : " There is a peculiarity attending this demand, and the proceedings to recover satisfaction for it, which it is necessary to consider for the purpose of showing at what period of those proceedings the death of the wife will or will not at law exonerate her husband from answering for her devastavit. An action to recover a debt owing by a testator can be brought only against the person standing in relation to the testator as his legal personal repre- sentative ; that person, in the case now under consideration, is the wife, executrix, or administratrix, and her husband is made a party pro forma} § 880. The first judgment is that the debt shall be paid de bonis iestatoris ; it afi'ects only the testator's estate, and creates no personal liability in the husband to satisfy the demand. Upon this judgment the plaintiff may proceed at his election in one of two methods; either by suing s. fieri facias de bonis testa- toris, directed to the sheriff, to which, if he return nulla bona, then, upon a suggestion of a devastavit, a scire fieri will be directed to him to levy the debt de bonis iestatoris ; or if that cannot be done, then to inquire by a jury as to the commission of a devastavit ; and if it be so found, then to summon the par- ties to appear in the court above to show cause why execution de bonis propriis should not issue. If the sheriff return to this ' See for the practice, Lee v. Waller, 3 I. P. Metoalf. 29 [449| CHAP. XXXI.] DEVASTAVIT. [§ 881 compound writ nulla bona, and a devastavit upon the inquest, and the fact of a devastavit having been committed be confirmed upon proceedings alone, then judgment de bonis propriis will be given ; and although the wife happen to die after such judg- ment, and before any proceedings are had under it, yet her husband will remain chargeable, his liability having been fixed by the j udgment de bonis propriis. The other and more natural mode of proceeding upon the first or original judgment is by an action of debt upon it, sug- gesting a devastavit; which action either may or may not be brought after or without suing any fieri facias upon the first judgment.' § 881. If the wife before marriage, being an executrix or administratrix, wastes her testator's or intestate's assets, it seems that, except as administrator to his wife, and to the extent only of her assets, the surviving husband will not be liable in respect of the devastavit, because his liability to the judgment of such of her debts as were contracted before marriage, could only be enforced during the coverture. Where the devastavit has been committed by the wife during the marriage, Mr. Eoper lays it down that the surviving hus- band will not be answerable at law, if he did not concur in the misapplication, and if he received no advantage from it. It was not his debt, and there is no legal form of proceeding by which he or his estate can be mac^e subject to the demand ; and since he is discharged by the rule of law, the same rule will discharge him in equity, there being nothing in either case to found the jurisdiction of either tribunal. "But," as Mr. Jacob observes, "the husband is generally chargeable in equity for the acts of his wife, as executrix or administratrix; as she has no power to act alone, his assent will in general be presumed." Hence, in Sanderson v. Crouch,^ Short v. Harvey," and Adair v. Shaw,^ the husband's estate was made responsible for what had been received by himself or his wife during the coverture. If the husband had concurred with the wife in the devastavit ' 2 Bright's Husband and Wife, 28-30. « 2 Vern. 118. ' Cited and stated 2 Brigh. 27-8. * l goh. & Lefroy, 243. [450] § 883] DEVASTAVIT. [OHAP. XXXI. committed during the marriage, and received the whole, or a part of the property misapplied, then it seems that he would, notwithstanding his wife's death, be liable, even at law, for the amount or value received by him ; for the principle of law is to create a charge wherever property bound to a particular duty comes to a person's hand, which he misapplies, and to give redress wherever its forms will admit. And for such parts of the assets as may remain in his hands, or in the possession of his executors at his death, in specie, an action of detinue or trover may be supported for the recovery of them. Whether, indeed, the forms of law could or could not be applied so as to afford a remedy in the case now under con- sideration, a court of equity will interfere and charge the surviving husband, or his estate in the hands of his executors, upon the principle that the misapplication of the husband was of trust property, and of his obligation by such trust to apply the funds received by him in discharge of debts and legacies, and the surplus according to the will of the wife's testator ; or if it were intestacy, then according to the statute of distri- bution. The cases establishing this head of equity are collected and commented upon by Lord Eedesdale, in his elaborate judgment in Adair v. Shaw.' § 882. If an administratrix marry, her oflScial acts without the husband's concurrence are void.^ The husband has a right to act in the administration without her co-operation or con- sent,' and consequently his assets are chargeable in equity for any waste committed during coverture."* § 883. But the same authorities, as well as that of reason, prove that the securities of the administratrix are also respon- sible to creditors and distributees ; any other doctrine would be palpably unreasonable and unjust. The control of the haron over the administration confided to the feme when sole, results from the marital relation. It is a necessary consequence of the legal unity and identity of husband and wife. In such case ' 1 Sch. & Lefroy, 243. ' Toller on Executors, 241, 358. 2 3 Bae. Arl). 9 ; KoU. Abr. 924. " Toller, 358 ; 3 Monroe, 355. [451] CHAP. XXXI.J DEVASTAVIT. [§ 885 the husband has given no security. His acts are those of the administratrix, "quifacit per alium, facit per se." The securities for the administratrix are bound for her acts as administratrix, and consequently for all those of her husband, who has the right to act for her, and whose acts, in that capacity, are hers.' § 884. The right to be the administrator of the wife belongs exclusively to the husband before all other persons. Thus, in the case of Humphrey v. Bullen and Wife,^ the wife survived her first husband, who left her a legacy, and intermarried with B. She died, the legacy being unreceived by B. during her life, but after her death he took out an administration to her, but died himself before the legacy came to his hands, and his administrator got it in, and so the administrator de bonis non of the wife brings his bill to have the legacy received by the ad- ministrator of the husband paid over to him as the legal repre- sentative of the wife. Lord Hardwicke: "The question here is, whether the administrator de bonis non of the wife, or the administrator of the husband, is entitled to the legacy. " I think clearly it was a vested interest in the husband, and therefore his administrator, as his representative, is entitled to it, without being obliged to make distribution ; for the husband is not within the equity of the statute, and it is explained, be- sides, by the last clause in the statute of frauds and perjuries. "Notwithstanding, by the rules of the common law, the ad- ministrator of the wife is entitled to it, being a chose in action not received or got in by the husband in his lifetime, yet equity will consider such administrator as a trustee for the administra- tor of the husband, for the husband having an absolute right to it by surviving his wife, his administrator ought to have the benefit of it." § 885. In ex parte Altemus,' the appeal was from the Eegis- ter's Court, for revoking the letters of Louis De Bellair as administrator of Sophia Susanna Altemus, and granting them to Joseph Altemus, the husband. Evidence was ofiered to show improper conduct towards the wife, by the husband's cruel and ' 2 J. J. Marshall's Reports, 199. 3 Ashmead, 49. » 1 Atk. 458. [452] § 887] DEVASTAVIT. [CHAP. 2XXI. barbarous treatment and desertion, and it was submitted to the court whether the husband is absolutely entitled to adminis- tration, or whether it was discretionary. The court held that nothing short of a conviction for crime, if that, will oust a husband of his right to administration of his wife's estate.^ In the case of Hendrin v. Colgin,^ the plaintiff, execu- tor of William Drinkard, who was the husband and adminis- trator of his wife, applied for a certificate for obtaining letters of administration de bonis non of her estate. The application was opposed by the defendant, who had intermarried with her daughter, and claimed the right to administer in preference to the executor of the husband. Eoane, J. : "This point has been decided in the case of Cutchin v. Wilkinson.' The executor of the husband, and even his administrator, is entitled to be admi- nistrator de bonis non of the wife in preference to her next of kin. The person entitled to the estate is entitled to administration." Where a /erne covert died intestate, and the next of kin to her obtained administration, and the husband sued for a repeal, a prohibition was denied per Holt, Chief Justice, because in this case the ordinary had no power or election to grant it to any person but to the husband, and this is not within the statute of Henry VIII., but within the statute of Edward III.* § 887. Where the husband purchased slaves, professedly for his wife, with money which he said belonged to the wife, held, that the legal title to the slaves vested in the husband, and upon his death to his legal representatives as assets.' A husband, in 1842, conveyed certain slaves and other per- sonal property to a trustee, to the separate use of his wife, and for the benefit of her children. The wife died without issue, leaving her father and her husband living. Held, that the hus- band was entitled to the slaves, &o., to the exclusion of the father.8 1 See Hart v. Soward, 12 Ben. Mon. Ky. 391, and 14 lb. 303. 2 4 Munf. 231. ' 1 Call. 1. * See also Towns v. Houston, 3 Howard's (Miss.) E. 394. See 1 Morehead's Practice, 367-8. 5 Garrett, &o., v. Gait, 13 B. Mon. 380. ° Brown, &c., v. Alden & Pope, 13 B. Monroe. [453] CHAP. XXXI.] DEVASTAVIT. [§ 889 The husband was formerly entitled, as administrator or dis- tributor of his wife's estate, to all choses in action, and vested rights in the personal estate and slaves belonging to her before the marriage, or coming to her during the coverture, which he was not bound to distribute.' The husband may release the wife's right of survivor- ship to a chose in action;^ he may discharge a debt due or release any wrong done to the wife before coverture,' or make a settle- ment with the guardian of the wife, or approve a settlement made, or release any wrong done to her in such settlement, and bar her right of survivorship, unless there be fraud or mistake." And no rule is better settled than if either husband or wife, whilst sole, is indebted to the other for a preceding debt, their subsequent intermarriage works a release of such debt as be- tween them; and the rule extends not only to those debts due in presentt, but also those which may become due during the marriage.* § 889. As long as the marriage relation subsists, the marital rights of the husband remain undiminished, unless by contract they shall be qualified in equity. If money be due to the wife, the husband may collect or release the demand. The wife, in this case, was the meritorious party to the judgment. In con- science she is entitled to the damages assessed for a battery on her person. But she has no better or other claim to the judg- ment than she should have to debts earned by her own industry when in a state of solitary helplessness and destitution. The receipt of the husband is good, and will bar the right of the wife. His conduct is most unworthy of a husband, and dis- creditable to him as a man. But his rights are fixed by inflex- ible law, which this court cannot control or alter. If the wife desires protection from the rapaciousness of an unfeeling husband, she should obtain a divorce. As long as ' lb. 453 ; Schuyler v. Hoyle, 5 Johnson's Ch. Rep. 207. ' Clanoey on Rights, 111. 3 Shep. Touchstone, 333, and Bybee v. Thorp, 4 B. Mon. Ky. 323. * Tuttle V. Munoy and ux., 5 Johnson's Ch. Rep. 200. « Clancy on Rights, 156 ; Roper on Husband and Wife, 76. [ 454 ] § 890] DEVASTAVIT. [OHAP. XXXI. she is "wife," the legal dominion of the husband may be exer- cised. Bracton says: '■^ Omnia quae, sunt uxor is, sunt ipsis viri, non hahet potestatem, sed virP In England, if, after a divorce a mensa et thoro, without ali- mony, the wife had a judgment for a personal injury done to herself, the husband might release it. But if she had alimony, he could not.' The assignment of the judgment by the wife cannot change the case. If she had authority to assign it without the concur- rence of the husband she had a right to collect the amount of it, and if she had this right it was not necessary to join the husband in the suit. § 890. A payment to the husband would be goodi He had a right to control the judgment. Therefore, a payment to the wife would not release the judgment. This is a peculiarly hard case ; but a decision for the wife would establish principles subversive of the long settled policy of the common law. The civil law cannot be applied to this case. If the wife had separate property, by decree or by ar- ticles, chancery would protect her.^ ' See 1 Salk. 115 ; 5 Modem, 71 ; 11 Roll. Abr. 402 ; Cro. Eliz. 908 ; Com. Dig. tit. Bar. and Feme, 0. 565. 2 2 J. J. Marshall's Reports, 82. [455] CHAP. XXXII.J SET-OFF. [§ 892 CHAPTER XXXII. SET-OFF. § 891. While at law a legacy to the wife is a legacy to the husband ; yet in equity, where a legacy is given to a married woman, or she becomes entitled to a share of personal estate as one of the next of kin of an intestate, the property is subject to the claim of the wife for a provision out of it for herself and her children. Thus, in Elibank v. Montolieu,^ a married woman, entitled as next of kin to an intestate, filed a bill against the administrator and her husband. The administrator claimed to retain toward satisfaction of a debt by bond from the husband to him; but the court declared that he was not entitled to re- tain, as the wife's share was subject to a provision for herself and her children ; and it was referred to the Master, to see a proper settlement made on them. So in Carr v. Taylor,^ where the bill was filed by a married woman, as next of kin to an intestate, for a share of the residue of his personal estate, it was held that the administrator could not set off a debt due from the husband to the intestate's estate. In ex parte O'Ferrell,' executors- were allowed to set off a moiety of a legacy given by their testator to the wife of the bankrupt, against a debt due from the bankrupt to their testator ; the other moiety was or- dered to be settled on the wife for life, with remainder to the issue of the marriage, § 892. But where the legacy is discharged of the wife's equity, as by her death without any such settlement having been made, or by any other means, the legacy becomes the absolute property of the husband, and the executors have a right to satisfy it by setting off so much of a debt due from him to the estate of the testator. Accordingly, in Ranking v. ' 5 Vea. 737. ^ 10 Ves. 574. » X Glyn. & Jan. 347. [456] § 894] SET-OFF. [chap. XX2II. Barnard,* a legacy was given to a wife whose husband was largely indebted to the testatrix. He became a bankrupt, and the wife afterwards died, without having asserted any claim in respect of the legacy. The assignee of the husband claimed the legacy; but it was held by Sir J. Leach, V. C, that the executors of the testatrix were entitled to retain the legacy in part discharge of the debt due to her. The result of the authorities appears to be, that where a debt to the estate of a testator may be set off by the executors against a legacy bequeathed by the testator to his debtor, such debt may also be set off against a legacy bequeathed by the testator to the wife, the debtor, subject to her equity (if any) in the legacy.^ § 893. In Belt et al. v. Graddy, Administrator of Belt,' where B. induced G., who had married a niece of B., whom he had raised, and to whom he was much attached, to abandon his determination to remove to Mississippi, and to incur a heavy expense in the purchase of a farm in Kentucky, by agreeing verbally to pay $5000 of the purchase money, in three annual instalments. B., having paid $2000 thereof, died, and G. be- came his administrator. Seld, that there was a valuable and meritorious consideration for the promise made by the intestate ; and although it was embraced by the statute of frauds, being verbal and not to be performed within a year, yet the adminis- trator has a right of retainer for the debt' due him, the estate being sufficient for the payment of debts. In such case, as the agreement was performed by G. on his part, relying upon its fulfilment by his intestate, and he cannot be restored to the situation in which he was before the contract was made, nor compensated in damages by any other standard than that furnished by the contract itself, it would amount to a fraud upon him to deprive him of the benefit of it on the ground that it was verbal merely. § 894. Per Simpson, C. J. It has been proved by the most ' 5 Madd. 32. ' See 2 Williams on Executors, pp. 1122-23, and authorities there cited. 5 1 Metcalfe, Ky. Rep. 553. [457] CHAP. SSXII.] SET-OFF. [§ 895 satisfactory testimony that the- intestate had in his lifetime in- duced the administrator, who had married his niece, to abandon his determination to remove to Mississippi, and to purchase a farm in Woodford County, in Kentucky, by agreeing to pay five thousand dollars of the purchase money, in three annual instalments. Two thousand dollars thereof was paid by the intestate in his lifetime, and the remaining three thousand is the sum for which the administrator claimed and obtained a credit in the settlement. Two objections are urged against this claim : First, that the promise made by the intestate was not founded on a sufBcient consideration to sustain it ; and in the next place that the con- tract, being verbal, could not be enforced under the statute of frauds, as it was not to be performed within a year from the time it was entered into. First. The agreement by Graddy that he would abandon his determination to remove from this State, and purchase a farm in Woodford County, which agreement was immediately per- formed by him, constituted a sufficient consideration for the promise made by the intestate. Graddy not only remained in Kentucky, but he incurred a heavy liability by purchasing the farm, in consequence of the promise by the intestate to pay five thousand dollars of the purchase money. The intestate was not, it is true, benefited in a pecuniary point of view by the arrange- ment; but he derived from it the gratification of retaining near him his favorite niece, to whom, as he was himself childless, it is apparent he was very much attached. The act of Graddy in remaining in this State, and purchasing a farm at the request of the intestate, and his gratification, constituted not only a valuable, but a most meritorious consideration for the agree- ment by him to pay a part of the purchase money.' § 895. Second. As the contract was verbal, and was not to be performed within a year, it was embraced by the statute of frauds. The statute, however, does not declare such contracts void, but only declares that no action shall be maintained upon them. The agreement is legal, although not enforceable by an action, and may be relied upon for many purposes. ' King's Executors v. Hanna, 9 B. Monroe, 370. [458] § 897] SET-OFF. [chap. XXXII. In this case, the part of the agreement which Graddy was to perform was to be done within a year, and was, in fact, per- formed immediately after the agreement was entered into. It has been decided in England, and also in some of the American courts, that in such a case the statute of frauds does not apply, and that an action will lie for non-performance of the stipula- tions by the other party." § 896. Whether this doctrine can be sustained on principle, to its full extent, we do not deem it necessary now to decide. The right of the administrator to the credit allowed him is unquestionable, according to the doctrine settled in the case of Eoberts v. Tennell.' It was decided in that case that although the landlord could not maintain an action on the verbal contract, yet that the statute did not deprive him of his right of distress for the rent due him under the verbal contract, and that he had an un- doubted right to rely on the contract by way of defence, if sued in an action of trespass, or to avow in an action of replevin brought against him for taking the distress. The statute of frauds does not affect the common law right of a retainer by an administrator; nor is that right taken away, although it is modified, by the act which makes all debts of equal dignity, and requires them to be paid ratably in the administration of estates. § 897. In this case the right exists to its full extent, as the estate is much more than sufficient for the payment of all the debts. As, therefore, the administrator has a right of retainer for the debt due to him under the verbal contract, and can, according to the doctrine in the foregoing case of Eoberts v. Tennell, rely upon the verbal contract to protect him in the exercise of that right, the credit for the balance of the money which his intestate owed him was properly allowed by the Cir- cuit Court. The agreement was performed by Graddy on his part, relying upon its fulfilment by his intestate, who, had he ' Donellan v. Read, 3 Barn. & Adol. 899 ; Holtrook v. Armstrong, 10 Maine, 31 ; Hardesty v. Jones, 10 Gill & John. Md. 404. 2 8 Mon. 248. [459] CHAP. XXXII.] SET-OFF. [§ 898 lived, would undoubtedly have performed his part of it. It would, therefore, amount to a fraud upon the former, after he has executed the agreement, to deprive him of the benefit of it, on the ground that the contract was verbal merely. He cannot be restored to the situation in which he was before the contract was made, nor can he be compensated in damages by any other standard than that furnished by the contract itself. The equity, as well as the law of the case, is, therefore, in favor of the appellee. § 898. And it would seem to be a mere personal privilege, as held in Clary's Heirs v. Marshall's Heirs.^ The court there said: "It has been repeatedly determined by this court that a parol contract for the sale or lease of land, even for a longer term than a year, is not void. The statute withholds the right of action to enforce such a contract, but allows to it operative effect as a shield of defence; and if subsequently j?er/erfec? by deed, while the vendor of land can and may plead and rely upon the statute, yet he is at liberty to waive his right to the defence, and consummate the contract, and cannot be deprived of his election to do so by a stranger. Though a vendor is not legally bound to fulfil his contract by a conveyance, yet a moral duty rests upon him to convey, and a moral right in the vendee to ask a conveyance ; and if the former chooses to waive his legal right, in obedience to the dictates of his moral duty. The statute oi frauds was made for the benefit of the parties to parol contracts for land, or those claiming under them, and not for the benefit of strangers thereto." ' 5 Ben. Monroe, Ky. Kep. 269. [460] § 900] GUARDIAN. [CHAP. XXXIII. CHAPTER XXXIII. GUAEDIAN. § 899. There is some contrariety of opinion as to the power of a guardian to convert his ward's real estate into personalty, or his personalty into real estate; but the weight of authority is decidedly against the exercise of such a power. "We take it to be the established doctrine, however, that he may exercise it sub modo, subject to the ratification or rejection of the ward when he shall arrive at full age. It is said, in a note in Eeeve's Domestic Relations, 334, that guardians are generally subject to the same rules as other trustees. And the doctrine that a trustee cannot convert a trust fund of money into land, or real estate into personal, is well settled. Generally, if the trustee does invest such fund in real estate, the cestui que trust may, at his option, accept the lands, or refuse them and demand his money. That a guardian is so far subject to this rule that he cannot thus change the property of his ward without the au- thority of a Court of Chancery, is well established.' § 900. Kent remarks, in his Commentaries :' " It is said that such a power may be exercised by a trustee or guardian, in a clear and strong case, without the previous order of a court of equity ; but the infant, when he arrives at full age, will be jentitled, at his election, to take the land, or the money with interest. And if the guardian puts the ward's money in trade, the ward will be equally entitled to elect to take the profits of the trade, or the principal with compound interest to meet those profits when the guardian will not disclose them." And it is added, in a note upon the same page, that it was intimated in 2d Eden, "such power might be exercised without a previous authority; and it was allowed and sustained, afterwards, by > Moore v. Moore, &c., 12 B. Mon. 662. ' Vol. ii. p. 30. [461] CHAP. XXSIII.J GUARDIAN. [§ 902 the Supreme Court of Peuasylvania.' But it is an extremely perilous act in a trustee, and cannot be recommended." § 901. A careful and attentive consideration of all the evi- dence in this case^ has irresistibly led me to the conviction that at the time the application to the court was made for the sale of the real estate of the plaintifls, and which resulted in the order of sale, the defendants were all aware of the hopeless con- dition of the mother of the plaintiffs, of whose life estate the defendant Gardner was then seised. That this important fact, upon which the whole real intrinsic value of such life estate depended, was carefully suppressed, and designedly concealed from the knowledge of the court, by concert and arrangement, with a view and for the express purpose of obtaining an order to sell ; thus enabling the defendant Gardner, from the avails of the sale, upon the basis of the Northampton tables, to appro- priate the lion's share for an interest which was not in fact worth an hour's purchase. The knowledge is directly brought home to each defendant by the evidence. The concert and combination are shown by the joint and separate acts of the parties, and the various appliances brought to bear, from the time the scheme was first broached to its final consummation. The design is clearly inferable from the complete adaptation and fitness of the means employed to the end attained. The law presumes that parties design to bring about the end they attain, when the means used are directly calculated to produce such result. § 902. The motive of the defendant Gardner can be seen clearly enough. The case was pressing, and admitted of no delay. So critical was his tenure, that the delay of a single day or hour might make a difference to him of just $6,601 44, the amount he received for an estate which actually terminated within a few hour^ after the sale was completed. The defend- ant Underwood is the brother-in-law of Gardner, and may be supposed to have sympathized with him, and thus been induced to lend aid and assistance which he would not have done in the case of a mere neighbor or stranger. But the motives which ' 1 Rawle, 266. " Clark v. Underwood, 17 Barlow, 218. [462] \ § 903] GUABDIAN. [CHAP. XXXIII. actuated Montgomery, the guardian of the infant children of a dying mother and an intemperate and utterly incapable father, are not so readily discovered. He was called upon by every consideration of moral, parental, and official duty and obliga- tion to guard, protect, and secure the interests of his wards. Instead of this, he was the most active and persevering agent in bringing about a state of things which was sure, under the forms of law, to transfer, without consideration or benefit to them, a large share of their legitimate heritage to a stranger. § 903. The pretence that he believed the mother of his wards to be convalescent at the time of making the application is too transparent to gain credence. He knew that her health had been for some time declining, and he had been assured by her physician only a short time previous that her recovery was hopeless, and that she could not at best live beyond a few days. He could easily have ascertained the truth ; and the importance of the truth of the case to the pecuniary inJ;erests of those under his charge, called upon him not to act without knowing what her actual condition was. Such credulity in a case like that is incredible upon any supposition short of utter imbecility or aberration of mind. No sane person, who was compos mentis, would voluntarily consent to part from the interest he was so eager to secure to Gardner, in his own case, upon the faith of vague rumors. Indeed, it is but too obvious that he was not at all in the interests of his wards ; but, deserting his sacred trust, was giving to Gardner the aid and protection he owed to them. Such conduct can scarcely be characterized as it deserves, con- sistently with the decorum of judicial review. It was insisted by the defendant's counsel that the court having the power to order the sale, even if it had known of the situation of Mrs. Clark, it cannot be known or alleged that the sale would not have been ordered had her situation been fully disclosed, and, therefore, no fraud or claim for redress can be predicated upon the supposition of such a fact. Courts may, and often do, err in judgment; but it must be assumed that they will always exercise their discretionary powers to promote the ends of substantial justice, and never to favor manifest in- justice and cupidity. [463] CHAP. XXXIII.] GUARDIAN. [§ 905 § 904. Suppose the facts had been disclosed by the petition, and in the evidence before the referee, where Montgomery him- self was a witness, that Mrs. Clark was in the last extremity of sickness ; that her recovery had been declared impossible by her attending physician ; could such a sale and distribution of the proceeds have been ordered or sanctioned ? The assump- tion that it could would be in the last degree derogatory, not only to the capacity and character of the judge, but to the administration of justice. It is clear enough that no judge, having the least regard for himself, or the rights of others, would have ordered a sale under such circumstances. It was unques- tionably the suppression of this important fact alone which enabled the defendants, under the sanction of judicial forms, to perpetrate this flagrant wrong against the plaintiffs. It was a fact in the case known to the defendant, and unknown to the court ; but the knowledge of which by the court was indispen- sable to a discreet and. proper exercise of its powers in the pre- mises. The court had no means of knowing or ascertaining the fact, and the defendants well knew that their whole scheme would be defeated by its disclosure. Under such circumstances the suppression of the truth is equivalent to the direct assertion of falsehood. § 905. It is urged that the defendants were under no obliga- tion to disclose, and, therefore, are not amenable. Whatever may be said in this respect as to the other defendants, it cer- tainly cannot be affirmed of the defendant, Montgomery. He was bound by every consideration of duty and fidelity to his trust, to disclose every fact in the case which might seriously affect the interests of his wards. It is not the case of two con- tracting parties, with the source of knowledge equally open to both, where the purchaser has acquired some knowledge affect- ing the quality or condition of the subject of the purchase of which the seller is ignorant. In such a case it has been held that if the purchaser do nothing whatever to mislead, he is un- der no obligation to disclose. This is in no respect analogous to such a case, in principle. The court was no party. It was charged with no duty, other than that of exercising a sound and reasonable discretion upon the case presented. It could not but [464] § 906] GUARDIAN. [OHAP. XXXII. presume that the qualified representative and guardian of the infant was acting in good faith. But it is urged that the court having passed upon the case presented, and there being no error in the exercise of its dis- cretion, and the order or judgment entered upon the case so presented, it has now no power to undo what it has ordered to be done, even if the case presented did not contain all the mate- rial facts. If it be true that courts cannot undo the wrong they have unwittingly done, through misrepresentation or fraudulent suppression of material facts, and place parties in statu quo, the power with which they are clothed is certainly most lamentably defective. But there is no lack of power in such a case, when fraud is alleged and clearly established, as it is here. § 906. There is no need to invoke precedents or authority to sustain so plain and reasonable a proposition. Fraud not only vitiates all sales and conveyances into which it enters, but the power and authority to sell and convey also, from whatever source derived. An order giving a party authority to sell and convey fraudulently obtained from a court, is no better than a power fraudulently derived from the party whose rights are injuriously affected by it. It may always be annulled at his instance, upon establishing the fraud, at least as to all persons who were parties or privies to such fraud. No rights acquired in good faith intervene here, and there is no obstacle to the placing the parties again in statu quo. All the orders, therefore, entering in the special proceedings, including the order of sale, and the order confirming such sale, must be vacated and an- nulled ; the defendant. Underwood, be ordered and decreed to reconvey the premises conveyed to him by the defendant, Mont- gomery, and Montgomery be directed to cancel and surrender the bonds, and satisfy of record the mortgages taken by him for the plaintiffs upon such sale; the defendants to pay plain- tiffs' costs of suit. 30 [465] CHAP. X2XIV.] FRAUD IN SALES OF ESTATES. [§ 908 CHAPTEE XXXIV. FRAUD IN SALES OF ESTATES. § 907. Frequently, as incidental to the protection of infants and feme coverts, in the sales and exchanges of estates, under decretal sales, through fraud, circumvention, and other inju- rious causes, prejudicial to them, their rights can only be secured by opening the biddings and annulling tbe acts of its ministe- rial officers ; but this right must be exercised discreetly, inas- much as it is of the utmost importance that great respect and confidence should be awarded to such, where the ministers and interpreters thereof have held out inducements and invited the public to buy ; but this general rule is subject to the utmost good faith on all sides. Since, under certain rules, and where good grounds are shown, sales will not be confirmed, but set aside, and a resale ordered, as in the cases of Daily v. Shirly,' Dale V. Williamson,^ Dale v. Shirley,' Busey v. Hardin.'' § 908. So in Lefevre v. Laraway," the court said : " The remain- ing points of the plaintiff to be considered are : that the sale of the property is void, because the purchase was made by the guardian ad litem of the infant owners ; and that the illness of the plaintiff", Isaac Lefevre, on the day of the sale, in connection with the inadequacy of the price for which the tannery, &c., was sold, are a sufficient reason for ordering a resale. Under the practice of the English Courts of Chancery, as a general rule, the biddings will be opened, and a resale ordered, where, before the confirmation of the sale, an offer is made of an advance of ten per cent, on the bids, and an indemnity to ' 3 Dana, 619. ^ 3 Johnson's N. Y. Chy. Hep. 290. ' 5 Ben. Monroe, Ky. Rep. 494. ■• 2 Ben. Monroe, 411. ' 22 Barbour's Rep. 173. [466] § 910] FRAUD IN SALES OF ESTATES. [CHAP. XXXIV. the purchaser.! But a resale will not be offered where the » advance is less than £40.' The English practice, however, has not been adopted in New York. Here, neither before nor after the confirmation of the report of the sale, will a resale be ordered upon an offer of increase in price alone.' This rule also pre- vails in England, after the report of the sale is confirmed. In this State special circumstances must in all cases exist, where the sale is not void, to justify an order for a resale. A resale will be ordered where there has been fraud, or misconduct in the purchaser; fraudulent negligence or misconduct in any other person connected with the sale ; surprise or misapprehen- sion created by the conduct of the purchaser, or of some person interested in the sale, or of the officer who conducts it.* § 909. In Lansing v. McPherson,* Chancellor Kent opened a sale on the ground of the ignorance of the defendant that the plaintiff had obtained a decree against him for the deficiency of the money to arise from the sale of mortgaged premises to pay the mortgage debt, ia connection with the defendant's offer of an advance of fifty per cent, on the previous bid. In that case the plaintiff was the purchaser, and the sale had not been con- firmed, nor the deeds executed. In May v. May,* an irregular sale of mortgaged premises, whereby the property was sacrificed, to the prejudice of a judg- ment creditor, was set aside on the application of such creditor, and a resale ordered, and the purchaser was denied the costs of opposing the application for a resale. § 910. In The American Insurance Company v. Oakley,' a resale was ordered where the master improperly put up for sale several lots together which should have been sold separately, where a judgment creditor had been injured. But in this case, as the purchaser purchased in good faith, his costs, expenses, and damages were directed to be paid. ' 1 Sim. & Stir. 20 ; 13 Wend. 226 2 4 Mad. Ch. Kep. 460 ; 2 Paige, 100. 3 13 Wend. 226 ; 26 Id. 143 ; 9 Paige, 259 ; 10 Id. 244. « 18 Wend. 227; 26 Id. 143 ; 10 Paige, 243 ; 3 John. Cli. 296 ; White v. Wilson, 14 Ves. 151 ; Morrice v. Bishop of Durham, 11 Ves. 67. s 3 John. Ch. 424. 8 11 Paige, 201. ' 9 Paige, 259. [467] « CHAP. XXXIV.] FEAUD IN SALES OF ESTATES. [§ 911 In Brown v. Brown,' it was held that a resale would be ordered on the application of an owner of the equity of redemption where he had intended to bid a greater sum for the mortgaged premises than the price for which they were struck off, but was prevented from so doing by mistake or accident. § 911. In Billington v. Forbes,^ the sale was opened on the application of a mortgagor, where an unconscious advantage had been taken of his illness by a co-defendant, which pre- vented him from attending the sale, and such co-defendant had, at the sale, purchased the premises at less than one-third of their value. Infant owners will be relieved by a resale, where their property has been sacrificed at the sale, through the misap- prehension or negligence of their natural or statutory guardians, on condition that a full indemnity is offered to the purchaser. Eelief is accorded to infants, on account of their infancy, where it would be denied to adults. A sale of the property of adults will not be disturbed when it has been sacrificed in consequence of their own negligence or inattention.* If the plaintiff in this case was, at the time of the sale, labor- ing under such high nervous excitement as to unfit him for business, and if he had previously intended to bid for the tan- nery and premises connected with it the sum of $9000, and had been actually prevented from doing so by his illness at the time of the sale, he would have been entitled to a resale on offering an advance of $2000 on the former bid, and full indemnity to the purchasers. But it is unnecessary to consider whether he is entitled to a resale upon this ground, as I have come to the conclusion that a resale must be ordered upon other grounds. The circumstances in the case, of the infancy of some of the owners of the tannery, and that the tannery, &c., sold for a sum greatly below its value, in connection with the omission of the guardian ad litem of such owners to bid for Smith & Croe at least the sum of $8000, which he was authorized by them to do, and the offer of Lefevre of $2000 on the former bid, alone will justify in ordering a resale, for the benefit of such infant owners. Although no application for a resale is made to the court in their behalf, yet such an order can be made on the 1 10 Paige, 244. " 10 Paige, 487. « Duncan v. Dodd, 2 Paige, 101. [468] § 912] FRAUD IN SALES OF ESTATES. [OHAP. IXSIV. court's own motion, in its capacity of universal guardian to all infants, and by virtue of its obligation to exercise a general superintendence and protective jurisdiction over their persons and property.' Wherever, therefore, in a suit or proceeding in this court, the facts appear to be that the rights of infant parties have been invaded, or in danger of being prejudiced, the court ought, without waiting to be specially invoked to do so, to exer- cise its protective jurisdiction in behalf of such infant parties. I think, also, that a resale of the tannery, and the premises connected with it, must be ordered, because they were purchased by the guardian ad litem of the infant defendants. Section 62 of the title of the Eevised Statutes, in relation to the partition of lands, declares that no guardian of any infant party to the suit shall purchase any lands, being the subject of the suit, except for the benefit or in behalf of such infant, and that all sales contrary to this provision shall be void.^ The language of this provision embraces Mr. Wait. He was the guardian ad litem of the infant defendants, who are the heirs of one of the owners of the tannery and lands connected there- with, being the subject of the suit, and he did not purchase these premises for the benefit or in behalf of such infant defend- ants. It will be observed that under the statute no purchase by the guardian can be valid unless it is made for the benefit or in behalf of the infant. I do not, therefore, see how the pur- chase in question can escape the condemnation of the statute. It comes within its words, and, I think, also within its spirit and policy. § 912. It is no answer to the objection that the purchase was not made by the guardian for his own benefit. The object of the statute was, to secure, in behalf of the infant, the best judgment, skill, and exertions of his guardian. There can be no certainty of accomplishing this end if the guardian is permitted to pur- chase either for himself or a third person. In either case the infant could not expect to receive what the law intends he shall have, an exclusive devotion to his interests from his guardian. It is for this reason that the law declares, without any previous ' 2 Story's Eq. Jur. §§ 1334, 1337. ■ z 2 B. S. 326, § 62. [469] CHAP. XXXIV.] FRAUD IN SALES OF ESTATES. [§ 913 investigation, that the purchase by a trustee of the trust pro- perty for his own benefit is absolutely void.' A guardian or trustee cannot place himself in a position in which he may be compelled to disregard either the interest of his ward or cestui que trusty or his own interest, or that of some third person. Mr. Wait, by assuming the agency of Smith & Croe, placed himself in such a position. As the agent of Smith & Croe, it was his duty to purchase the property for the lowest price; as guardian, it was his duty to cause it to be sold at the hio-hest possible price. This is a position the law did not per- mit Mr. Wait to occupy, and it is one intended to be forbidden by the statute. § 913. It is argued by the counsel for Smith & Croe, &c., that Lefevre is not at liberty to take this objection to the sale, and that it can only be taken on a proper application by the party injured. I concede that Lefevre cannot apply for a resale on this ground, which affects only the present defendants. But I do not concede that the court has not the power, or that it is not its duty, without any application by an infant party, to interpose in his behalf, to prevent a sacrifice of his property. As the fact of the purchase by the guardian, for the benefit of Smith & Croe, at a price injurious to the interests of the infant defend- ants, has, by the motion of Lefevre, been brought to the know- ledge of the court, I am satisfied that it is my duty, without awaiting an application in behalf of such infants, to order a resale of the tannery for their benefit, upon such terms and conditions as will secure to them the full value of their interest in such property. Undoubtedly, in all cases of illegal purchases of an infant's property by his guardian, the court can ratify the sale, if, in its judgment, a ratification will promote the interests of the infant. In this case it is clear that upon the offer of Lefevre a resale will be beneficial to the infant defendants. I shall, therefore, order a resale of the tannery and the land immediately con- nected therewith, the same as purchased for Smith & Croe; provided Lefevre, within eight days, executes a bond with suf- ficient surety to the owners, conditioned that he will on the ' 1 Selden, 256. [470] § 914] FRAUD IN SALES OF ESTATKS. [CHAP. XXSIV. resale bid $9000, and will purchase tlie tannery at that price if struck off to him ; and will also, in case he becomes the pur- chaser, allow and pay to the other owners at the rate of $2 75 a cord for their share of the bark at such tannery, and will in all respects fulfil the terms on which said tannery and premises shall be sold to him, &c. Smith & Croe must be allowed interest upon the first pay- ment of their purchase, from the time .they provided the money for that purpose, and while it remained unproductive in their hands ; but they are not entitled to costs of opposing the mo- tion, or to the payment of their expenses and damages, as the purchase by Mr. Wait for them was void, under the statute. The resale may be on a previous notice of three weeks, in case the parties interested in the premises consent thereto in writing. If Lefevre fails to give the security required, the sale to Smith & Croe must be deemed to stand for the benefit of the infants, and must be ratified ; as an order directing a resale, without such security, might prove injurious instead of being beneficial tb such infants. § 914. I see no reason for disturbing the sale of the other parcels of the real estate, sold to Caleb W. Slocum and others. The advance offered on the bids for these parcels is not sufficient to justify such an order. The motion as to these sales must, therefore, be denied. As Slocum and Van Housen did not oppose the motion, they are not entitled to costs. But the mo- tion as to Arnold must be denied, with ten dollars costs. The decision does not apply to William L. Powers & Co., as the parties agreed on the hearing of the motion that the motion should not embrace that purchase. Although it is apparent from the affidavits read on the motion, and the offer of Lefevre to bid $9000 for the tannery, &c., that this property was sold at least $2000 below its value, yet I entertain no doubt that the guardian, in entering into the arrangement made with Smith & Croe, that they should become purchasers, acted in good faith, and believed that by such arrangement he was promoting the interests of the infant defendants, and that he would thereby prevent a ruinous sacrifice of their interest in the property." [471] CHAP. XSZV.] CUSTODT OF INFANTS. [§ 915 CHAPTER XXXV. CUSTODY OF INFANTS. § 915. The case of the People v. Wilcox,' is a proceeding upon habeas corpus,^ instituted by Ann Augusta Wilcox, to obtain possession and custody of ber infant daughter, Theresa Wilcox, who was eight years of age in the preceding December. The mother was married to Nathan B. Wilcox, a son of the respondent, in February, 1838, who died in February last, leaving a wife and two infant daughters, Theresa and Char- lotte ; the latter being two years younger than Theresa. At the time and after the birth of Theresa the mother was in such feeble health that she was unable to have the care and charg* of her infant, and she was taken when a few weeks old to the respondent's, Morris Wilcox, where she has remained ever since. Mrs. Wilcox, the wife of said Morris, has had the charge of her, assisted by her daughter. The grandparents and family have become very much attached to her. Nathan B. Wilcox became very intemperate, and in July, 1848, the relator's father, Ira Wilcox, who resided in Oxford, Chenango County, took her ' 22 Barb. 179. " The following is an approved form of habeas corpus used in such cases : — State of . County, set. To the Sheriff or any Coustahle of County, greeting : — You are commanded to take the body of , an infant under twenty-one years of age, child of , from the custody of , and have the same under safe and secure conduct before me , at , on , the of , 18 — , at o'clock A. M., and also summon , who so detains the said infant, to then and there appear, and show in writing the cause of detaining said infant, and authority therefor. And hereof you are not to fail, under the heavy penalties denounced by law against those who disobey this writ, and then and there to submit to and receive all things which shall be adjudged in the premises. Witness my hand as of said county, this day of , 18—. A B [472] § 915] CUSTODY OF INFANTS. [CHAP. XXXV. from him, and she ceased to live with her husband from that time ; he, it seems from the evidence, continued to be very in- temperate up to his death, which was from delirium tremens, in February last. At the time the father of Mrs. Wilcox took her home, in 1848, Theresa had been with her mother, at Utica, her then residence for a short time ; and she was taken by the re- lator's father to the respondent and left there, under an agree- ment that he should pay fifty-two dollars a year for her sup- port, which sum he has paid every year since that time. It would seem from the evidence in this case that the father of Theresa never made any legal disposition of the custody or guardianship of this child ; and his declarations of his wishes with reference to it are quite inconsistent. If the witnesses of the respondent are to be credited, and we find no reason to dis- believe them, he verbally gave this child to his mother, and enjoined upon the respondent and his wife that they should always take care of her, and regard her as they would their own child. On the contrary, the mother of the child produces and proves letters written to her by her husband during the years 1852, 1853, and some of them after it is alleged that he had given Theresa to her grandparents. In these letters he expresses a strong desire that his two daughters shall be brought up together, and by their mother ; and in at least two of the letters expresses a determination to take Theresa from her grandparents and commit her to her mother's care. In these letters to his wife he speaks of the difficulty of severing the ties of attachment which exist on the part of the grandparents toward this child, and says: ''/ expect ivhen the time comes /or her to go, there will be a fuss." It would seem from this cor- respondence that the father desired that this child should be brought up by her mother, and with her sister ; and it is quite difficult to reconcile his letters of February 6th, 1852, with the idea that he preferred to commit the custody of the child to the respondent and his wife, rather than to the relator. Ira Wilcox, the father of the relator, a man of fortune, died November 9th, 1852, making a very handsome provision in his will for his daughter and her two children. The latter are to receive an annuity of $300 each till they attain the age of twelve years, when it is to be increased to $600 until they attain the age of twenty-one years, when they are each to receive a very hand- [473] CHAP. XSXV.] CUSTODT OF INFANTS. [§ 916 some estate. The relator, under the will of her father, has an annuity of $1,500. This annuity to these two children is by will placed in charge of the mother, " to be expended hy her in the nurture, maintenance, and education of said children," and this child has no other property. It seems from the evidence in the case, that after the father of the relator took her home, in 1848, he interdicted all intercourse between herself and her husband, unless short interviews were had in the presence of some mem- ber of her family ; neither was she permitted to visit her hus- band's family after her separation from him, in 1848, until after the death of her husband, when she went thither to claim The- resa. She has seldom seen the child since 1848, and then only when she was brought to Oxford by her father, on a visit of a few days. She avers, however, that she has always been anxious to reclaim her, and to have the custody and education of her daughter herself. From the evidence it appears that in 1851 she made an effort to obtain her, and the consent of her father was gained ; but the grandparents refused to let her go. The father affirmed that he was willing to give her to her mother if his own parents would consent ; but they refused, and Theresa was allowed to remain. Nathan B. Wilcox died on the 7th of February last, while his wife was temporarily absent in Florida; and on the 10th of February, but three days after his decease, his father, in the absence of the relator from the State, applied to the surrogate of Oneida County, and was appointed guardian to Theresa. This appointment was made on the same day of the application, and without notice to any of the relations, although there were relations in the county of Oneida. § 916. It appears, from the testimony given in this investi- gation, that the mother is a lady of refinement and intelligence, who is entirely competent to have the nurture and education of her children committed to her ; it also appears from the evidence that the child has been uncommonly well cared for in the family of her grandfather, and there is a strong mutual attachment between the members of the family and herself. There can be no doubt that the wife of the respondent has proved herself a faithful mother to the child, and that she is entirely competent to the proper discharge of all the duties of nurture and training which the little girl may require. Neither can she be injured [474 J § 917] CUSTODY OP INFANTS. [CHAP. XXXV. in any way from any want of respectability in the family in which she has thus far been reared. The respondent and his family have maintained a good position in society, which is implied from the fact that Theresa has so long been permitted to remain with them by her maternal relations. I do not attach much importance to the unguarded, and, to say the least, highly improper and violent language used by the respondent when Mrs. Wilcox called with a friend to obtain her child. The words were spoken in a very high state of excitement, and it is only charitable to attribute them to an outburst of uncon- trollable feeling. I do not believe the respondent is a man of general profanity or ungovernable passions. The complainant, having resided in his family, must have known him well ; and if such had been the case, she would not have permitted her child to live so long under his guardianship. § 917. The case is an embarrassing one as to the duty of the court in determining who shall have the custody of the little girl. She has been examined, and most decidedly prefers to .remain with her grandparents. She appears to be an active, sprightly child, in her ninth year; and when asked why she preferred to remain with them, rather than go with her mother, she replied that her mother was a stranger, and she knew her grandparents; there is little doubt, if questioned, she would have said that she loved them best. This is simply the infant heart speaking its own language in behalf of those who have watched over it for a period of almost nine years. The hand that has fed, the eye that has watched, and the heart that has showered its smiles and caresses upon the child during the first impressible years of its existence may confidently claim its affections; and if left at that time to choose for itself, there is little doubt with whom it would go. At this tender age, The- resa scarcely realizes any other mother than the one who has so long filled this place in her childish love. Judge Patterson, in Re Preston,^ says: "It seems to me but mockery to ask a child of nine years of age whether it would sooner remain with the person who brought it up, or go with a stranger." It I 5 Dowl. & Ryl. 247. [475] CHAP. XXXV .J CUSTODY OF INFANTS. [§ 918 seemed altogether useless to question this child, as it must be assumed that she would prefer to remain with those who had brought her up, and the examination was only insisted on as a duty devolving upon the court. The fact of the strong mutual attachment existing between Theresa and her grandparents must not be wholly overlooked in determining the question before us. The severing of this connection will cost them many bitter pangs ; but the interest of the child must be the governing mo- tive with the court, and whenever that is ascertained, its judg- ment must be pronounced accordingly, irrespective of all other considerations. As regards the child, there is no doubt that when placed with her mother, she will soon become as strongly attached to her and her sister as she now is to her grandparents. And this it is most certainly the duty of the court to promote. By common consent, in accordance with the dictates of nature and humanity, the mother is regarded as the true guardian to her young child- ren, and she is no doubt better fitted to train and protect them during infancy than any other person. The common law wisely declares that upon the death of the father the mother becomes the guardian of her infant children; and such is the common law in all countries, where the statute law has not broken in.^ § 918. In determining this question, some importance must be attached to the fact that the only property this infant has for her education and support is, by the will of her maternal grand- father, placed in charge of the mother, to be expended by her for the benefit of the child. It is also important to the welfare and happiness of these two sisters that they shall be brought together, and taught the important duties of the relation they bear to each other and to their mother. There is also another feature bearing on the case in question. It is apparent, from the evidence brought forward, that Mrs. "Wilcox and the family of her husband are not of one household ; and if Theresa con- tinues to reside with her grandparents, she will, in all proba- bility, grow up a comparative stranger to her mother and sister. This is a result to be deprecated, so far as the interests of the ■ Roaoh V. Gowan, 1 Ves. R. 158 ; Rex v. WaugMord, 1 Id. Raym. 395 ; 2 P. Williamg, 116 ; MoPherson on Infants, 66, 72 ; and others. [476] § 919] CUSTODY OF INFANTS. [OHAP. XXXV. two sisters are concerned; therefore, from these and other con- siderations which might be suggested, it is concluded that the best interests of this child will be promoted by committing its custody to the mother. It has been said by high authority that,, "all other things being equal, the mother is the most proper person to be intrusted with such a charge. The law of nature has given her an attachment for her infant offspring which no other relative will be likely to possess in an equal degree; and where no sufficient reason exists for depriving her of the care and nurture of her child, it would not be a proper exercise of discretion in any court to violate the law of nature in this respect."! § 919. In attaining this conclusion, due attention has been given to facts appearing on this application, calculated to de- tract somewhat from the force of these remarks as applicable to the present case. The fact that Theresa has been reared to her ninth year almost as a stranger to her mother, with the natural result that her affections have been bestowed on those who have had the care of her, is calculated to render somewhat doubtful this application of the rule above stated, in its full force, to the case under consideration. When to this is added the fact that for nearly seven years the mother has bestowed her almost undivided affection upon the younger child, Charlotte, there are some misgivings as to the accuracy of the judgment which removes Theresa from her present abode. The com- plainant will, undoubtedly, as mother of these children, have to surmount many difficulties and embarrassments which do not fall to the lot of mothers generally. If the little girl is placed under her control, she will have to gain the affections of a child literally weaned from her, while by her side will be the younger sister, who has been accustomed to monopolize her mother's affections. This child must, of course be taught to know why another has come to share her mother's affections with herself, and it will require great tenderness and fortitude to meet such conflicting interests, and rear these children free from the jealousies and difficulties which naturally arise among children of the same family after so long a separation. This, The People v. Mercein, 8 Paige's R. 47. [477] CHAP. XXSV.] CUSTODY OF INFANTS. [§ 920 however, can be done, and tlie mother is competent to the per- formance of the task. These seeming difficulties will give way before her wise training and counsel, for Mrs. Wilcox is fully- competent to the discharge of the delicate and highly respon- sible duties she is anxious to assume towards her children. It is, therefore, deemed right to commit the charge of this child to her mother, unless there should be legal difiiculties and objections in the way. § 920. This brings me to the consideration of the legal ob- jections raised by the counsel for the respondent. It is claimed and insisted in his behalf that the grandfather is the legally constituted guardian of the child, and, as such, is entitled to her custody and control. After a careful examination of the matter, I am entirely satisfied that the appointment of the respondent, by the surrogate of Oneida, as the general guardian of Theresa, is valid until reversed, and that it cannot be assailed in this collateral way by proceedings upon liaheas corpus.^ There are three objections raised to the legality of this ap- pointment. The first is, that the surrogate did not assign a day for the hearing, but made the appointment the same day the petition was presented. The statute seems to be imperative that the surrogate shall assign a day.^ The surrogate may assign the day on which the appointment is presented, if he shall de- termine that notice to the relatives need not be given. There is nothing in the papers to show that this was not done. We must, therefore, presume that the surrogate assigned the day of the application for the hearing. The second objection is, that no notice of the application or of the hearing was given to the relatives of the minor residing in the county. The answer to this is, that the statute confers a discretion upon the surrogate in this respect. The statute, as originally framed and enacted in the Eevised Statutes, seems to have contemplated that all of the relatives residing in the county should be notified.^ But the act of 1831 has modified ' The King v. Hopkins, 7 East, 579 ; Ex parte Hopkins, 3 P. Williams, 155 ; The King v. Delaval, 3 Burr. 1436 ; 10 Ves. R. 66, note 4 ; The People v. Mer- oein, 8 Paige's R. 47. 8 2 R. S. 157, § 5 ; 9 Paige's R. 206. 3 2R. S. 151. [478] § 921] CUSTODY OF INFANTS. [CHAP. XXXY- the provisions of the Eevised Statutes in this respect, by de- claring that notice shall be served only on such relatives of the minor as the surrogate shall direct.' There is nothing in the papers to show that these statutes were not complied with. The third objection is, that the application to the surrogate was fraudulent in alleging the residence of the mother in Flo- rida, when the petitioner knew her to be a resident of New York. There is not much importance to be attached to this objection, as there is nothing in the statute which would require notice to be given to the complainant, as her residence was in Chenango, and, besides, I have been unable to discover the fraud in this respect imputed. The respondent being the law- fully constituted guardian of the child, and possessing under the statute the same powers as a testamentary guardian,^ it is claimed and insisted that while Theresa is in the custody of the respondent, she cannot be deemed under illegal imprisonment or restraint by his simple refusal to deliver her to her mother. This position seems too clear to require discussion or elucida- tion. Judge Duer, in the case of The People v. Porter,' and I will merely refer to his opinion on that, and to that of Judge Coleridge in the case of The King v. Greenhill,^ where the true rule upon this subject is most lucidly set forth. In the latter case, Judge Coleridge says: "A habeas corpus proceeds on the fact of illegal restraint. Where the writ is obeyed, and the party brought up is capable of using a discretion, the rule is simple, and dispbses of many cases, namely, that the individual who had been under restraint is declared to be at liberty, and the court will even direct that the party shall be attended home by an of&cer, to make the order effectual. But where the person is too young to have a choice, we must refer to legal principles to see who is entitled to the custody, because the law presumes that where the legal custody is no restraint exists." § 921. In the case of The People v. Porter, Judge Duer, after quoting the language of Judge Coleridge, supra, with approval. 1 Laws of 1847, p. 632, § 44 ; 9 Paige's R. 207. * 4 Adol. & E. 642. 2 2 R. S. 157, § 1 ; Id. 150, § 1. . 3 1 Duer, 709, 719, 720. [479] CHAP. XXXV.] CUSTODY OF INFANTS. [§ 921 adds: "An infant of such tender years as to be incapable of rationally expressing its wishes, which is all I can understand by being incapable of making a choice, is of necessity under restraint; and in order to determine whether the restraint is legal, the court must determine to whom the custody belongs. In order to remove the illegal restraint, the court must see that the infant is delivered to its legal custodian."^ To this extent there is no doubt the legitimate office of our statute writ of habeas corpus goes, and to this extent it may be executed by a commissioner at chambers. The necessity of an argument to prove that the extent of the office of our statute writ of habeas corpus is the removal of the illegal restraint of the party brought up by the' writ, is saved by the conclusive opinion of Judge Duer in the case above referred to, in which opinion he was sustained by his associates, Campbell and Bos- worth. If, therefore, the present writ is to be regarded as purely a statute writ, which I am to execute as commissioner under the statute, it seems very clear that my powers are con- fined within the rule above indicated. If so, I need not add that the mother cannot have the relief sought by this writ upon these proceedings; for while the infant nine years of age, who is incapable of exercising any discretion, is in the custody of its legally constituted guardian, the person to whom the law confides it, it cannot be said to be under illegal restraint ; where the legal custody is, in such a case, there is no restraint. The counsel for Mrs. Wilcox claimed and insisted, upon the argument of this case, that upon this writ and this proceeding I possessed all the powers of the late Court of Chancery, and that, admitting the legal custody of the child to be with her grandfather, a court of equity possessed a controlling and su- perintending power over all guardians, and will take the infant from the guardian whenever its welfare and interest require it. The question presented is one of jurisdiction. If I am to be considered as invested with the powers of the Court of Chancery in the execution of the proceedings on this writ, then there is no question of jurisdiction. The power of a court of equity in such a case is not to be questioned. It rests upon undoubted ' 1 Duer, 719, 720. [480] § 922] CUSTODY OF INFANTS. [CHAP. SXXV. authority, and I will content myself with a reference to a few § 922. The jurisdiction is the same over testamentary guar- dians, and those appointed by the surrogate, as over guardians appointed by the court itself.^ Under the exercise of this juris- diction, a court of equity will control the guardian, by taking from him the infant, and delivering it to its mother, whenever the interest of the child requires it. And were the same facts which have been established in this investigation to appear before me at any stated term of the court, either by petition or in a plenary suit, I should deem it my duty, for the reasons above stated, to order and direct the grandfather to deliver the child to her mother. I, however, entertain very great doubt as to my right to do so on these proceedings. My right to do so involves a question of jurisdiction ; and, after the most careful examination and deliberate reflection I have been able to bestow upon it, I have come to a conclusion adverse to my jurisdiction. I will proceed to state, very briefly, the reasons which have in- duced this conclusion. I have shown, in a former part of this opinion, that the child, while in the custody of her grandfather, is under no illegal restraint, and that, confining my authority to the strict and legitimate office of the statute writ of habeas corpus, this infant must be left with the respondent, its legally constituted guardian. In the second place, I take it to be very clear that, as this writ was issued and returnable before me at chambers, I do not possess any of the powers which belong to a court of common law, under a common law writ of habeas corpus, for the common law writ can only be granted on a motion in court.^ Were I at liberty to treat the present as a common law writ, and, in pronouncing my judgment, to assume ' De Manneville v. De Manville, 10 Ves. 5 ; Crease v. Hunter, 2 Cox's Cas. 242 ; Wellesley v. "WeUesley, 2 Bligh's Peer. Eep. N. S. 124; 1 Dow & Clark, 152 ; 5 Paige, 597 ; 8 Id. 47 ; Forsythe'a Custody of Infants, 704, 706 ; White's Equity Cases, 600 ; 2 Story's Equ. Jur. § 1341 ; 2 Kent's Com. 227, 3d ed. ; 2 John. Ch. Rep. 439 ; 8 Cowan, 369. 2 2 Johns. Ch. Kep. 439 ; 8 Cowan, 350 ; 8 Paige, 47 ; 2 Kent's Com. 227, 3d ed. ; 4 Johns. Ch. Eep. 80. ' The People v. Porter, 1 Duer, 714 ; 4 Bao. Ah. 575 ; Bonn, ed. tit. Habeas Corpus, (B) 4 ; 3 Black. Com. 152. 31 [481] CHAP. 3XXV.] CUSTODY OF IKFANTS. [§ 924 the powers, not indeed of chancery, but of common law courts, it is exceedingly doubtful whether I should be justified m making the order desired.* It remains to be considered whe- ther this power is possessed by me, in execution of this writ, in virtue of the chancery powers conferred upon the Supreme Court and the justices thereof. § 923. The Supreme Court, as at present organized in this State, possesses all the powers of the late Supreme Court and the Court of Chancery; and by the seventy-sixth section of the judiciary act, commonly so called, the justices of the present Supreme Court possess all the powers and jurisdiction of the former justices of the Supreme Court, the chancellor, the vice chancellor, and circuit judges.^ The argument submitted by the counsel for Mrs. "Wilcox, upon this branch of the case, is substantially this: that as a justice of the Supreme Court I possess all the powers of the late chancellor, and that as the Court of Chancery is always open, and the chancellor could issue the writ out of his court at any time, on an application to him, in virtue of his common law powers, a justice of this court can do the same. I entertain no doubt of the soundness of this argument. I do not doubt that upon a proper petition to me at chambers, invoking the exercise of the equity powers of the Supreme Court, I might grant the order directing the issuing of the writ out of that court, and make it returnable therein. The late chancellor possessed the power to execute this writ, as a commissioner under the statute.^ § 924. The practice of the late chancellor was to issue the writ out of his court under the seal of that court, returnable before the chancellor in the Court of Chancery.* If the chan- cellor assumed to execute the statute writ of habeas corpus as a commissioner under the statute, his powers were the same as those of a supreme court commissioner. It becomes important to inquire, therefore, whether I am to regard this application, ' 1 Duer, 715-728, and cases there referred to. » Laws of 1849, p. 323, § 16. ' 2 R. S. 563, § 25 ; 8 Paige, 47 ; 25 Wend. 95. * 8 Paige, 47 ; 25 Wend. 95. [482] I 925] CUSTODY OP INFANTS. [OHAP. XXXV. and tbe proceedings upon this writ, as had before me as a jus- tice of the Supreme Court, or a commissioner under the statute, or as a proceeding in a court of equity. The petition presented, and the proof annexed thereto, must settle this question. The petition itself conforms to the strictest requirements of the statute. This, and the accompanying proofs, show that the design of the applicant was not only to lay the foundation for the statute writ, but also to make the proofs required on an application to a commissioner not residing within the county where the infant was detained. If the application be to one of the ofScers named in the statute as commissioner, it must be to an officer residing in the county where the person to be brought up is illegally detained. If there should be no such officer within the county, or if he be absent, or for any cause incapable of acting, or if such officer shall have refused to grant such writ, then the application may be made to some other officer having authority, residing in the adjoining county. The statute^ provides that whenever an ap- plication for such a writ shall be made to any officer not residing within the county, proof shall be made of the facts above stated, before he shall be allowed to issue the writ. Mrs. "Wilcox made this proof before me. If the application were to the equity side of the Supreme Court, no such proof is required. But, again, no order was entered with the clerk of the court award- ing the writ, as is customary. The writ was issued out of the Supreme Court, and as was customary when issued out of the Court of Chancery.^ This writ itself is not returnable in the Supreme Court ; nor is it returnable before me in the Supreme Court, as was the form of the chancellor's writ. § 925. Upon the return of the writ the grandfather moved to supersede or quash the writ, for the reason that the special county judge of Oneida was authorized to execute it ; that he was not absent from the county, and had not been applied to to issue the writ ; and upon this motion it was not even sug- gested by counsel, nor did the idea once occur to me that this was to be deemed a writ issued by the court. It, therefore, • 2.R. S. 564, §§ 25, 26. « 25 Wend. 95. [483] CHAP. XSXVj CUSTODY OF INFANTS. [§ 926 seems to me that if a judge at chambers can ever be justified in acting at the same time and in the same proceeding in a double capacity, it is quite clear that I cannot do so on the papers be- fore me, if I felt inclined to do so. I am entirely satisfied that upon this writ I possess no other powers than such as are pos- sessed by a supreme court commissioner under the statute; and that consequently I cannot, without a usurpation of authority, assume or exercise that species of jurisdiction which belongs exclusively to a court of equity. I am aware that some of the common law judges, in speaking of the discretionary power of the court upon habeas corpus in the case of infants, have spoken quite loosely on this subject ; but this was in cases of writs ■ issuing out of the court where the common law powers might be exercised ; but what is a little remarkable, in all these cases the exercise of that discretion was declined. I have examined with some care all of the cases referred to upon the argument, and many others; and I do not hesitate to declare that no adjudged case can be found in the books, where, in the execu- tion of this writ, a judge at chambers has assumed, upon the facts appearing in this case, to grant the relief sought. It only remains for me to say, that as I find that Theresa Wilcox is not "imprisoned, detained, confined, or restrained of her liberty in any manner, or upon any pretence whatever, and as I have come to the conclusion that I have no jurisdiction to grant that equitable relief in the premises which belongs to a court of equity, all further proceedings upon this writ must be dismissed, without prejudice, however, to the rights of the mother upon any subsequent application by petition or otherwise." § 926. On the termination of the foregoing proceedings, the said Ann Augusta Wilcox presented a petition to Justice Mason, setting them forth, and claiming the custody of her daughter. This petition was addressed to the Supreme Court in equity, and presented to the said justice at chambers, out of term. Jus- tice Mason thereupon granted an order that the said Morris Wilcox should show cause why the custody of the child should not be given to its mother. The petitioner proved her case, and an order was given that the said Theresa Wilcox should be restored to the care and guardianship of her mother. The respondent appealed to the [484] § 928] CUSTODY OF INFANTS. [OHAP. XXXV. general term. The case was argued, and the order affirmed. The main question argued, both in the general term of the Supreme Court and in the Court of Appeals, was whether a justice of the Supreme Court has the authority, out of term, to entertain petitions and proceedings in equity. The determina- tion of this case settles the question that such jurisdiction is possessed, and may be exercised out of term. § 927. In Villareal v. Mellish,' it was held that there was no doubt as to the powers of the chancellor to make such orders relative to the guardianship of infants, without a cause pending, as was done in Barrett and Lady Teynham.' Eights of guardianship are not generally decided on writs of Jialeas corpus.^ As to the power of the mother as guardian of her infant children, notwithstanding her second marriage, see Pottinger v. Wightman.'' A mother cannot appoint a testamentary guardian. It is a private office of personal trust, and not assignable.' v., the daughter and widow of a Jew, having agreed with her father that he should have the care of the persons and estates of her two infant children, and, in the event of their death during minority, should receive a moiety of their property, amounting to the sum of £27,000 to each child, the mother abjured Judaism, and married a Christian. On the petition of the children, the court ordered that they should be delivered, to their mother, guardianship not being assignable, and the agreement not pur- porting to be an assignment; the right of the mother to be the guardian of her children was recognized, notwithstanding her second marriage." § 928. In regard to the maintenance of infants out of their own property, we are not to understand that it is to be allowed as a matter of course by a court of equity, either out of the income, or the principal thereof. On the contrary, the court ' 2 Swanston, 537. " 9 Mod. 40 ; see also the note to the case supra, 2 Swanston, 539. 3 Ibid. * 3 Merrivale, 67. » Villareal v. Mellish, 2 Swanston, 537. ' Ibid. [485] CHAP. XXXV.] CUSTODY OF INFANTS. [§ 929 will examine into the cireumstances of the case, and if the father is of ability to maintain the infant out of his own pro- perty, the court will, ordinarily, withhold all allowance from the property of income of the infant for the maintenance of the latter. But if the father is unable to support the infant, he may be allowed out of his estate; and if special circumstances exist, the father may be allowed for expenses of part mainte- nance. The ■ court also is not limited in its authority, in regard to maintenance, to cases where the infant is resident within the territorial jurisdiction of the court, or the maintenance is to be applied there. But, in suitable cases and under suitable circumstances, it will order maintenance for an infant out of the jurisdiction, taking care to impose such restrictions and conditions on the party applying for it as will secure a proper application of the money.* § 929. In allowing maintenance, the Court of Chancery will have a liberal regard to the circumstances and state of the family to which the infant belongs; as, for example, if the infant be an elder son, and the younger children have no provision made for them, an ample allowance will be allowed to the infant, so that the younger children may be maintained. Similar considerations will apply to a father or mother of the infant, who is in distress or narrow circumstances. On the other hand, in allowing maintenance, the court usually confines itself within the limits of the income of the property. But where the property is small, and more means are necessary for the due maintenance of the infant, the court will sometimes permit the capital to be broken in upon. But, without the express sanction of the court, a trustee or guardian will not be permitted, of his own accord, to break in upon the capital.^ In the next place, in regard to the management and disposal of the property of infants. And here the Court of Chancery will exercise a vigilant care over guardians in the management of the property of the infant. It will carry its aid and pro- tection in favor of infants so far as to reach other persons than ' Story'3 Equity, sec. 1354. " Ibid. sec. 1355. [486] § 930] CUSTODY OF INFANTS. [CHAP. XXXV. those who are guardians, strictly appointed. For if a man intrudes upon the estate of an infant, and takes the profits thereof, he will be treated as a guardian, and held responsible therefor, to the infant, in a suit in equity. § 930. Guardians will not ordinarily be permitted to change the personal property of the infant into real estate, or the real property into personalty, since it may not only affect the rights of the infant himself, but also of his representatives, if he should die under age. But guardians may, under particular circumstances, where it is manifestly for the benefit of the infant, change the nature of the estate ; and the court will sup- port their conduct if the act be such as the court itself would have done, under the like circumstances, by its own order. The act of the guardian, in such a case, must not be wantonly done, but it must be for the manifest interest and convenience of the infant. But, nevertheless, the court has an obvious regard to the circumstance that these representatives may be affected thereby ; and it is always inclined to keep a strict hand over guardians, in order to prevent partiality or misconduct. For the purpose of preventing any such acts of the guardian, in cases of the death of the infant before he arrives of age, from changing improperly the rights of the parties who, as heirs or distributees, would otherwise be entitled to the fund, it is the constant rule of courts of equity to hold lands purchased by the guardian with the infant's personal estate, or with the rents and profits of his real estate, to be personalty, and distri- butable as such ; and, on the other hand, to treat real property (as, for example, timber cut down on a fee simple estate of the infant) turned into money as still, for the same purpose, real estate. On these accounts, and also from the manifest hazard which guardians must otherwise run, it is common for them to ask the positive sanction of the court to any acts of this sort. And when the court directs any such change of property, it directs the new investment to be in trust for the benefit of those who would be entitled to it if it had remained in its original state.' Story's Equity, sec. 1356. [487] CHAP. XXXV.] CUSTODY OF INFANTS. [§ 933 § 931 A female ward of the court, married without its au- thority, or in contempt of it, will not be allowed to waive her right to a settlement out of her own property; but, in a recent case,' a ward of the court, married without its leave, though with the consent of her guardian, was allowed, on coming of age, to consent to her husband having her property without his making a settlement on her; and the settlement will in general be much less in favor of the husband than in ordinary cases, as the court will attend principally to the interest of the wife and her children by that or any subsequent marriage, especially when a man of no fortune marries a ward without the leave of the court, with the sole object of getting possession of her pro- perty.* § 932. With regard to the marriage of infant wards, there is a most important and delicate duty exercised by the Court of Chancery with great caution in relation to all persons who are wards of the court. No person is permitted to marry a ward of the court without the express sanction of the court, even with the consent of the guardian. If a man should marry a female ward without the consent and approbation of the court, he and all others concerned in aiding and abetting the act will be treated as guilty of a contempt of the court ; and the hus- band himself, even though he was ignorant that she was a ward of the court, will still be deemed guilty of contempt.^ § 983. In all cases where the Court of Chancery appoints a guardian, or committee in the nature of a guardian, to have the care of an infant, it is accustomed to require the party to give a recognizance that the infant shall not marry without the leave of the court ; which form is rarely altered, and only upon spe- cial circumstances. So, that if an infant should marry, though without the privity or knowledge, or neglect of the guardian or committee, yet the recognizance would in strictness be forfeited, whatever favor the court might, upon an application, think fit to extend to the party, when he should appear to have been in no fault. ' Staokpole v. Beaumont, 3 Ves. * White's Equity Cases, p. 380. ' Story's Equity, seo. 1358. [488] § 935] CUSTODY OF INFANTS. [OHAP. XXXV. § 934. With a view also to prevent the improper marriages of its wards, the court will, where there is reason to suspect an intended and improper marriage, without its sanction, by an injunction not only interdict the marriage, but also interdict communication between the ward and the admirer; and if the guardian is suspected of any connivance, it will remove the infant from his care and custody, and place the infant under the' care and custody of a committee. Lord Hardwicke has justly remarked that this jurisdiction is highly important in its exer- cise under both of these aspects ; in the first place, when it is exercised by way of punishment of such as have done any act to the prejudice of the ward; in the next place, by the still more salutary and useful exercise by way of prevention, when it restrains persons from doing any act to disparage the ward, before the act has been completed. § 935. In case of an offer of marriage of a ward, the court will refer it to a Master, to ascertain and report whether the match is a suitable one, and also what settlement ought to be made. And when a marriage has been actually celebrated without the sanction of the court, the court will not discharge the husband who has been committed for the contempt, until he has actually made such a settlement upon the female ward, as, upon a reference to a Master, shall, under all the circum- stances, be deemed equitable and proper. It will not make any difference in the case that the ward has since arrived of age, or is ready to waive her right to a settlement ; for the court will protect her against her own indiscretion, and the undue influ- ence of her husband.' ' Story's Equity, sec. 1360-61. [489 1 CHAP. XXSVI.] GROUNDS FOR DIVORCE. [§ 937 CHAPTER XXXYI. GROUNDS FOE DITORCB. § 936. The general principles regulating divorces, independ- ent of statutory provisions, were, in Logan v. Logan,^ stated by Chief Justice Eobertson as follows : " Marriage, being more fundamental and important than any of the social relations, is controlled as to its obligations by a peculiar policy, deemed essential to the welfare of the whole community. Being a con- tract for life, indissoluble by the consent of the parties merely, it should not be dissolved by the sovereign will for any other causes than such as are subversive of its essential ends, or in- consistent with the general welfare. And it is certainly import- ant to the general stability and harmony of that relation, that the parties should know that having taken each other with all their infirmities, and vowed reciprocal fidelity and forbearance for life, it is their interest as well as their duty to 'bear and for- bear,' as far as the resources of love, philosophy, and religion can enable them." This, to an essential, if not to the whole extent, is the law of the land — which will not countenance or permit separation from bed and board for incompatibility or austerity of temper, aliena- tion of affection, domestic discord, or reproachful words, how- ever vulgar, or violent, or undeserved ; but requires, by the strongest of all temporal sanctions, that all dif&culties resulting from such avoidable causes shall be either adjusted in the do- mestic /orwm, or borne with patience as contingent incidents of the union the parties had mutually promised to cement by love and adorn by grace for life. § 937. Parties unfortunately united in the most sacred and endearing of all earthly relations, must submit to the misfor- ' 2 B. Monroe, 144-147. • [490] § 938] GROUNDS FOR DIVORCE. [OHAP. XXXVI. tune as one of the consequences of an injudicious choice. They must strive to conciliate by kindness and forbearance — " must subdue by decent resistance or prudent conciliation, and if this cannot be done, both must suffer in silence." This is our law, human and divine ; " and if it be complained that by this in- activity of the courts much injustice may be suffered and' much misery produced, the answer is that courts of justice do not pretend to furnish cures for all the miseries of life. They cannot make men virtuous, and as the happiness of the world depends on its virtue, there may be much unhappiness in it which human laws cannot undertake to remove." The law prudently determines that even the most offensive ebullitions of passion, in words and acts, which neither injure the person, nor endanger personal security, will not authorize a divorce a mensa et thoro. There must be soevitia to justify such a separation. Less severity than this will not authorize a court to put asunder those whom "God has joined together." And were it otherwise, domestic quarrels might mischievously engross all the services of courts of justice. § 938. Abandonment, however protracted, will not authorize a decree for a divorce a mensa et thoro, and for alimony. Ac- cording to the ecclesiastical law of England, either adultery or sxviiia — that is, cruelty endangering personal security — author- ized such a decree ; but mere abandonment did not. It may be admitted, as intimated in Butler v. Butler,^ that a husband who abandons his wife without cause, and refuses either to live with her, or to contribute to her maintenance, may be com- pelled by a court of equity to fulfil his legal and moral obliga- tions in that respect. But Mrs. Logan's bill and proof do not bring the case within the range of the principles of equity. Her bill was filed with no view to a decree for mere necessaries. It neither alleged that her husband had ever refused to pay for her necessary comforts, nor suggested that he would not permit her to return to his house, or that she was unwilling to do so, nor that she had ever proposed or desired a restitution of all conjugal rights. In England a suit for the restoration of conjugal rights was the » 4 Litt. 205. [491 J CHAP. XXSVI.] GROUNDS FOE DIVORCE. [§ 941 appropriate remedy for securing to an injured and deserted wife her rio-htful maintenance, without being divorced a mensa et ihoro. And unless she sought and was entitled to restitution, she could not obtain a decree for separate maintenance — which was, as it always should be, only alternative and ultimate relief, and upon general principles of equity and policy, never should be decreed to a wife who had neither sought nor desired a resti- tution of conj ugal rights, and has no legal cause for a decree for separation. § 939. An assault or stroke, or slap or slaps, with the hand, on a single occasion, or occasional petulance of temper, rudeness of language, or sallies of passion, which do not threaten bodily injury, or expose the person or health of the wife to danger, cannot be deemed suflBcient to constitute cruel, inhuman, and barbarous treatment, within the contemplation of the general law.' § 940. Pothier^ says that "a blow or stroke of the hand should not be a cause of separation under all circumstances, unless it was often repeated." Such assault might be the result of a momentary sally of passion, stimulated by the irritating language or conduct of the wife, and furnish no reasonable grounds for apprehending future bodily harm.^ To use the language of Chancellor Kent, "mere austerity of temper, petu- lance of manner, rudeness of language, a want of civil attention, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to that cruelty against which the law can relieve."'' These may all be the effect of habit, or of a bad education, and should, in general, be borne by the wife as the best means of disarming them of their effects, and securing to herself connubial happiness. § 941. If such grounds could be deemed sufficient to justify a separation of the wife from the husband, it is apprehended ' Finley v. Finley, 9 Dana, 53. ' Traits du Contrat de Marriage, s. 509. » 14 John. Ch. Rep. 187 ; Barrere v. BaiTere. * 2 Kent's Com. 126. [492] § 942] GROUNDS FOE DIVORCE. [OHAP. XSXVI. there would be many cases in which good reasons for a separa- tion might be made out. Good morals, as well as good policy, require that the door should not be opened so wide. Hence it is that the courts, under the common law, hare been very strict and rigid in requiring that the causes shall be grave and weighty ; and such unfeeling cruelty or habitual persecution on the part of the husband must be shown as to threaten the personal safety of the wife, and expose her to danger in her person or health in the discharge of her marital duties, or render the bonds of matrimony, to a prudent woman, the bonds of wretchedness and oppression.' § 942. Upon the same principle, in Mayhew v. Mayhew,^ where the husband's conduct towards his wife was such an habitual course of persecution as to render the bonds of matri- mony a condition of wretchedness and degradation, she was privileged to leave him and claim alimony. Ideal perfection is not the rule of decision in human tribunals, but the standard of excellence which is attainable by the various classes to which it pertains; in such cases, the provocation on the one hand, as well as the reciprocal duties of husband and wife, must be looked to. The court also there said: "Without allowing too much weight to the feeling of resentment naturally produced by a course of conduct on the part of the husband tending not only to provoke, but to degrade her, there is no evidence of any act or assurance of his on which she could have built a well-founded expectation that she might not be subject to the same treatment among strangers which she had received in her own neighbor- hood, where she was known and respected. He had neither discarded his suspicions nor retracted his accusations. He had given no evidence of returning confidence and respect; but, still nursing the jealousy which was the cause of all the evil, and with feelings exasperated rather than softened by the re- maining sense of duty and affection towards his wife, he seems habitually to have preserved a reproachful and threatening " Kent's Com. 52, 53. ' 7 B. Mon. 430. [493] CHAP. XXXVI.J GROUNDS FOR DIVORCE. [§ 944 silence, or to have vented his bitterness in opprobrious lan- guage, or in more contemptuous acts." § 943. In Thornberry v. Thornberry,^ the husband, notwith- standing some good qualities were conceded to him, was penu- rious to a groat, and was never known to speak a good word of any human being. His treatment to her was abusive, though to what extent was not proven ; but, after spending fourteen years in wedlock with him, his bad treatment must have been such as to justify her in leaving him; and as his avarice, aided by her care and industry during the fourteen years, had enabled him to accumulate a considerable estate, it was but just that she should enjoy a support from the same, although her life may not have been in danger. She was frequently found in tears by her visitors, and some- times the marks of apparent violence were visible upon her person ; noises have been heard in the house, her shrieks min- gled with them, and then she has been seen leaving the house, wringing her hands in apparent agony. In addition to this, the husband had acknowledged laying violent hands upon her ; yet it does not appear, from the injuries inflicted, that he in- tended to take her life, or a sufficient cause for a divorce would have been made out. This would seem to be rather an extreme case, in view of the more modern decisions. § 944. Occasional paroxysms of hereditary insanity before marriage, unknown to the husband, do not furnish a ground for divorce, nor does complete insanity after marriage ;' but a court of equity would find modes of protection by appointing a trustee for the property, and this might be done without rescinding the contract. Upon the power to rescind, upon this ground, I am not called upon to decide, and would not without full examina- tion. But so far as the existence of occasional paroxysms of hereditary insanity before marriage, and unknown to the hus- band, are presented as a ground of divorce, the question does arise, and, I am of opinion, affords no cause for divorce, nor ' 2 J. J. Marshall, 325. ' Eamaker v. Hamaker, 18 Illinois Rep. 14. [494] § 945] GROUNDS FOR DIVORCE. [CHAP. XXXYI. general ground for rescinding tlie marriage contract on account oi fraud, mistake, or inadequacy. So far from presenting features appealing to our feelings of sympathy or sense of justice for this kind of relief, it rather wears the aspect of brutal insensibility, to cast off the poor, unfortunate wife and unoffending mother. If there be a period during the marital relation when, more than at any other, the tenderest care, support, and watchfulness of an affectionate hus- band are demanded, it is while the wife is helpless from sickness or insanity. To make this misfortvne — the greatest that can befall us — the ground of the next greatest wrong and injustice, would be truly adding insult and injury to providential mis- fortune. But where to put the unfeeling husband who would thrust his wife away because she had become totally incapable of self-care, must be left to the dictates of Christian humanity. The procreation and nurture of children being one of the objects of marriage, the law has provided for imbecility of body, but not for the mind. The court will not allow divorces under the eighth section of the Illinois act in relation to that subject, except for such causes as are named in the act, and as were sufficient under the canon and common law. § 945. Chancellor Kent, in the case of Barrere v. Barrere,' says : " There can be no doubt that acts of personal violence and harm amount to that cruelty against which the law intended to relieve. Mere petulance and rudeness, and sallies of passion, might not be sufficient, but a series of acts of personal violence, or danger of life, limb, or health, have always been held suffi- cient ground for separation by the common law, which is the law of England on this subject." Though a personal assault and battery, or a just apprehension of bodily hurt, may be ground for this species of divorce, yet it must be obvious to every man of reflection that much caution and discrimination ought to be used on this subject. The slightest assault or touch in anger would not, surely, in ordinary cases, justify such a grave and momentous decision. Pothier ' 4 Johns. Ch. Kep. 189-190. [495] CHAP. XXXVI.] GEOUNDS FOR DIVORCE. [§ 946 says' that a blow or stroke of the hand would not be a cause of separation under all circumstances, unless it was often repeated. The judge, he says, should consider if it was for no cause, or for a trivial one, that the husband was led to this excess, or if it was the result of provoking language on the part of the wife, .pushing his patience to extremity. He ought also to consider whether the violence was a solitary instance, and the parties had hitherto lived in harmony. All these different circum- stances will, no doubt, have their due weight in regulating and directing the judgment of the court. § 946. There is much embarrassment on the ground of policy and public morality, with partial dissolutions of the matrimonial union. It is throwing the parties back upon society "in the un- defined and dangerous characters of a wife without a husband, and a husband without a wife." Pufifendorf condemns them, except for a temporary purpose, and in order to punish and reclaim the offending party; and it is said the separation a mensa et ihoro was entirely taken away by the first English reformers, as productive of great abuses and scandal in the marriage state. Opportunity ought to be left, and pretty freely left, open for reconciliation. This consideration will have the more weight if the unhappy parties have a common offspring to be afflicted by their infirmities, and especially if "wounds of deadly hate" have not pierced too deep into their bosoms. I am persuaded that it is best, in such cases, to give the parties the means, though they may not at present indulge even the wish, for reconciliation. There are objections to a separation for a precise or limited time, though such decrees have been rendered. It may inspire a constant fear on one side, and nourish hopes of revenge on the other. It rather appears to me to be the most kind and salutary course to declare the sepa- ration perpetual, with a power, however, reserved to the parties, to come together, under the sanction of the court, whenever they shall find it to be their mutual and voluntary disposition. This will be leaving them to the free operation of contrite affections, and will make the reunion to rest (if it should ever ' Traits du Contrat de Marriage, a. 509. ^ De Jure. Gent, et Nat. bk. 6, o. 1, s. 22. [496] § 947] GROUNDS FOE DIVOKOE. [CHAP. SXSVI. take place) upon a strong sense of its fitness and propriety. I entertain no doubt of my power to annex such a condition to the decree ; and, indeed, the reconciliation of the parties does away the force of a decree of separation from bed and board, by the canon of ecclesiastical law, among the nations of Europe. § 947. Law of England as to divorce a mensa et thoro. — The decreft^f a divorce a mensa et thoro by the English law is said to be either for a time, or without limitation of time.' Yet, by the form of the decree, the separation is only until a reconciliation. In omni sententia lata inseritur hcec clausula, Dictos N. et M. raniione scevitice alUgatce et propatce, a thoro, mensa, et mutua cohabitatione absque ohsequiorum conjugalium impensione, donee et quonsque duxerinit invicem reconciliandos, et non aliter, neque alio mono, separamus? We have a judicial determination upon this point in the case of Vanthienen v. Vanthienen,^ which was heard upon appeal in the Court of Delegates, in 1731. The wife had libelled her husband in the Consistory Court of Dantzic, in the then kingdom of Poland, for cruel treatment, and a sentence of divorce a mensa et thoro was pronounced. It was further decreed by the Pope's Nuncio, at Warsaw, that the husband should not have any power over her estate ; and we are led to infer from the case that the decree was afterwards confirmed in the Chancery of Poland. The question raised by the case in England was whether the husband, aftQr the decree in Poland, had a right to interfere with her administration of a former husband's estate, who by will had given a legacy to her, and compel her to administer thereon, or to be admitted to administer for her. The wife relied upon this decree of divorce in bar of his pre- tension, and she had constituted an attorney to whom she prayed that such administration might be granted. The husband re- plied, that they were reconciled subsequent to the divorce, and insisted that this reconciliation annulled the sentence, and ren- dered it inoperative. It was held upon the argument by the husband's counsel (Dr. Strahan, the translator of Domat, was one of them) to be the settled law, that the subsequent recon- > Bum's Ecoleg. Law, tit. Marriage, c. 11, s. 4. 2 Oughton's Ordo Judioiorum, tit. 215, s. 3. ^ Fitzgib. 203. 32 [497] CHAP. XXSVI.] GEOUNDS FOR DIVORCE, [§ 9*^ ciliation annulled the sentence, and restored all things ad pris- tinum statum. The other side seemed to admit this general result of the reconciliation, and only contended that it did not affect the right of property which had been vested under the decree. The court pronounced a decree in favor of the hus- band, and must have admitted the doctrine in support of his claim. § 94:8. As to the French law of divorce. By the French law, taken from one of the novels of Justinian, the wife, convicted of adultery, was sentenced to imprisonment in a monastery; but the husband, witkin two years, might reclaim her ; but if he did not, she was to remain in the convent for life; to be clothed in the habits, and subjected to the austerities of the house. But it seems to have been settled that the husband, notwithstanding this alteration in her condition, might still, at any period of his life, reclaim her; and this was deemed just and reasonable, as the prosecution was at his instance and upon his account. It was one of the novels of Justinian' that fixed the period of two years for the husband to recover his wife ; but the thirty-second novel of the Emperor Leo mitigated the severity of the former ordinance, and it has since been under- stood that the husband's right to reclaim his wife was indefinite as to time. Non intra biennium, sed perpetuo, de jure canonico, potest revocare? That the husband's time for reconciliation is unlimited, was admitted and shown by M. Fournier, and by M. Talon, the Avocat G^n^rale, in their ingenious and learned pleadings in the case of Thone and Joisel, which is reported at large in the Causes Celebres (torn. 10), under the title of Feme Adultere, of which a copious abridgment is given in Ferrie's Dictionary, title Autentiquer une Feme. It is a little extraordinary that so accurate a writer as Pothier should not have adverted to this well settled improvement of the canon law, and that he should confine the husband's right to redeem his wife to the period of ' Novel] 34, 0. 10. ' Fournel's TraitS de I'Adultere, pp. 308-309, 320, 321, 326, 327, 328 ; Inst, au Droit. Francois, par Argon, torn. ii. 357. [498] § 949] GROUNDS FOR DIVORCE. [CHAP, 5SXVI. two years, according to the rigid and exploded novel of Justi- nian.^ The French law to which I have referred is thus analogous to the English canon law, by equally admitting a subsequent reconciliation. to control these judicial decrees, or separation from bed and board. My object is to show the prevalence and acknowledged policy of that measure ; and the practice under the French law is, therefore, a case in point, for it is well known that under the former laws of France divorce in any case signi- fied only a separation of goods, and from bed and board ; and that the marriage contract, according to the doctrine of all Eoman Catholic countries, was considered a sacrament, and held indissoluble during the life of the parties. But I ought here to observe that the analogy has now ceased ; for the law of mar- riage underwent a radical change at the time of the French Eevolution, and in an early stage of it the revolutionists almost declared war against the marriage contract. The code Na- poleon checked, indeed, the unlimited freedom of divorce ; but, with the exception of the new Prussian code, published at Berlin, in 1794, it still left the marriage tie in a more relaxed state than is permitted in other nations under the influence of Christianity. Marriage is absolutely dissolved by divorce, which may be not only for many reasonable causes specified, but for no cause whatever, except the mutual and persevering consent of the parties, duly declared under certain checks and provisions. § 949. Law of Holland. — If we pass to Holland, we shall find these divorces a mensa et ihoro in use under the sanction of the civil magistrate ; and the law of Holland is in this respect very analogous to our own. The decree, according to Bynkershoeck,^ is always with the proviso, sub spe reconciUatioms, and the juris- diction of the subject in their temporal courts is under the influence of the canon law. Hx causis matrimonialibus aliqua inforo nostra sit juris pontijicii auctoritas.^ The divorce a mensa et ihoro is for great cruelty or imminent personal danger, and a ' Traits du Contrat de Manage, n. 527. ^ Incest. Jur. PriT. lib. 2, ch. 8. ' Ibid. Ob. 10. [499] CHAP. XXXVI.J GEOUNDS FOR DIVOKCE. [§ 950 distribution of property is made between the parties, and the icatrimonial tie continues. Interdictii utrique aliis nupim? § 950. Form of a decree of divorce a mensa et tJwro. — My in- ference from this review is that by the canon law of England, and of the nations on the continent where the canon law pre- vails, a time for reconciliation is left open to the parties, upon theee qualified. divorces from bed and board; and the indul- gence is founded in sound policy, and dictated by benevolence. The question then arises whether the decree ought not to pursue the formula given in Oughton, and declare a separation until the parties shall be reconciled to each other. I assume that I have competent power to make such a decree, for the statute authorizes the chancellor to decree a separation "forever," or "for a limited time," or to make "such other decree" as the case may require. But such a general decrefe seems to be of too loose a texture, and to be destitute of the requisite sanction. It separates the parties until they are reconciled, aftid leaves the event open to dispute. I should really be apprehensive of exposing the court to some portion of that sarcasm which Lord Thurlow, in arguing the Duchess of Kingston's case, bestowed upon matrimonial causes in the Ecclesiastical Courts, when he spoke of the frivolousness of their proceedings, and the vanity of their decrees. I prefer that the sentence shall be binding and effectual, until the parties shall have applied to the court, and received upon jus* grounds a judicial recognition of the certainty and sincerity of their reconciliation. The parties should be encouraged to look forward to that cheering event, and to escape as soon as possible from the perilous and painful situation in which they are placed by the decree. The canon law, with a paternal solicitude well worthy of adoption,^ re- quires that a monition be inserted in all sentences for divorce a mensa et thoro, that the parties must live chastely, and that neither of them, during the life of the other, can contract mar- riage with any other person. 1 Voet. Cour. de Divortiis, et Repudiis, s. 16, 17. ' Burn's Eooles. Law, tit. Marriage, oh. 11, s. 4 ; Oughton's Ord. Ind. tit. 215, s. 4. [500] § 952] GEOUNDS FOR DIVOECB. [CHAP. XXXVI. § 951. Formula of the Ecclesiastical Courts, — These kind admo- nitions are peculiar to the Ecclesiastical Courts, in the exercise of their jurisdiction over matrimonial causes; and if a bill of this kind should fail from want of proof, the courts do not, even in that case, send the wife back without due care for her recep- tion. The monition is not only that "the husband shall take her back," but that "he shall treat her with conjugal kindness.'" Since the whole of this delicate jurisdiction has been recently- committed to this court, I have no better source to which I can resort for the guidance of my judgment in this new path of duty than to the doctrines of the English ecclesiastical or canon law. It is a supplemental part of the com:mon law, and seems to be a brief, chaste, and rational code. It forms, in some respects, a contrast to the unwieldy compilations which constitute the canon law of Eoman Catholic countries, and which contain very circumstantial, and many very unprofitable, regulations on the subject of marriage and divorce.' It is further understood to be the law,^ that if the wife be separated from the husband by a divorce a mensa et thoro, the children she may have during such separation are bastards, because a due obedience to the decree is to be presumed until the contrary be shown. If, however, a cohabitation between the husband and wife be made out in proof, the offspring would then be legitimate, for the relation of husband and wife is not dissolved. It only undergoes a very inconvenient suspension, and which is intended to operate as a continual invitation to the parties to return to their first love. § 952. As to the disposition of the children in case of divorce' a mensa et thoro. Another interesting and difficult question is as to the dispo- sition of the child, anc^ the allowance to be made to the wife. It is to be observed that the husband is in this case the parity ' ' Vide Sir Wml Scott's opinion in the Consistory Court in Doctors' Com- mons, in Evans v. Evans. ^ Vide Corpus Juris Canonici, par (Mbert, edit. Geneva, 1735, tom. iii., De Sacramentis : tit. 12, De legitime usu matrimonii ; tit. 13, De impedimentis matrimonii ; tit. 14, De divortiis. 3 The Parishes of St. George and St. ilargaret, 1 Salk. 123. [501] CHAP. SXXVI.] GHOUNDS FOR DIVORCE. [§ 953 egregiously in the wrong, and he is solely responsible for the rupture of the conjugal tie. It appears, also, that his employ- ment as the keeper of a porter-house or ice-cream garden is not the most favorable for a propitious influence upon the habits and manners of his son. I shall, therefore, in this respect, also grant the prayer of the bill, and consign the care and custody of the child to the mother. But the statute upon this subject' •wisely allows these orders to be varied or annulled at any time thereafter, upon sufficient cause. The allowance to the mother for the child ought to be quite small in the first instance, and more especially as some weight ought to be attached to the consideration that the father may be greatly afflicted by the loss of the presence and guardianship of his son, and the mother will have a most persuasive motive to industry and economy by the duty and blessing of such a charge. § 953. Allowance to the party for maintenanee. — The defendant would not probably be able to bear a large pecuniary allowance to his wife, either for her own or her child's maintenance. It is said that the profits of his establishment will enable him to maintain himself and his wife, but the witnesses allude to the case of their living together, and contributing their united efforts for their mutual support. He might be able to maintain her in his own house, and yet not be able to pay a considerable annuity. He owns a leasehold estate on which he has expended considerable money, and which is charged with a ground-rent and a mortgage debt. If he pays $200 a year towards the maintenance of the wife and child, it is as much as the circum- stances of the case would seem to justify; and if I am mistaken in the amount, either of the parties can apply at any time for relief The usual and proper course is to refer questions of this kind to a master; but as the proofs are all before me, and the allowance is so entirely under future discretion, and subject to alteration, I have not thought it necessary in this case to detain the cause by the delay and expense of a reference upon that point.^ > Act sess. 38, eh. 221. ' Upon this subject see Bishop on Marriage and Divorce. [502] § 954] GKOUNDS FOR DIVORCE. [CHAP. 5XXVI. In the case of Yan Veghten v. Van Veghten,' the husband recriminated his wife's charges, and intimated a desire for the divorce, on the ground of desertion, cruelty, &o., on her part, toward himself. The chancellor said in reply: "The common law has given the husband sufficient power and control over his wife to protect himself from such conduct. Nor can the court take notice of any consent or desire of the defendant, in compliance with the wishes of the plaintiff, and make that the ground even of a qualified divorce from bed and board. It ought to be well understood that the court cannot lend its judi- cial aid and sanction to any such voluntary agreement. These qualified divorces from bed and board are dangerous enough under all the checks and guards provided by any decree. The early canons of the church^ directed that parties so separated should not only live chaste, and without forming any new matrimonial contract, but even that no sentence should be pro- nounced until security was given by the party requiring the decree to obey this restraint.^ § 954. The contract of marriage is a stable and sacred con tract of natural as well as municipal law. It is a contract juris gentium, and the parties cannot at plea- sure of either or both get rid of the duties it imposes. It is a contract juris gentium, and parties cannot lawfully rid themselves of its duties at the pleasure of either or of both of them. If we except the new law of France, and the new law of Prussia, alluded to on a former occasion," there is no such dangerous relaxation of the marriage tie tolerated among Chris- tian nations. We must go in search of loose of the obligation to the half civilized people of Asia, where polygamy prevails ; and where, as a consequence of this evil, and as a branch of the same baneful policy, we shall find the prevalence of an almost unlimited freedom of divorce.'' ' Jolinsoii's Chancery Reports, p. 502. " Burn's Eccl. Law, tit. Marriage, cli. 11. ^ Johnson's Chancery Reports, p. 502. * Ante, p. 194, and sec. 948, ante. * Sale's Koran, ch. 65 ; Blphinstone's Caubul, b. 2, ch. 3 ; Institutes of Menu, oh. 9, ss. 122-126 ; Colehrooke's Hindu Law, vol. ii. pp. 416, 426, sees. [503] CHAP. XXXVI.] GEOUNDS FOB DIVOECE. [§ 956 § 955. In making provision for the wife when the husband obtains a divorce, the court will look to the grounds thereof, and will be to some extent governed by their character.' The distribution of property between husband and wife upon granting a divorce, is to be governed by the laws in force at the time the facts occur which are the grounds of the divorce.^ Under the Kentucky act of 1809, the court, on decreeing a divorce, was required to dispose of the property as should seem right, having due regard to the rights of each party, and the children, if any, without divesting either party of real estate.' Where the conduct of the wife is blameless, a provision equal to what the law would give her on the death of her husband, will not be deemed unreasonable, in case of a divorce obtained by her.^ The alimony or allowance et mensa et thoro of the wife should be in proportion to the annual income of the husband's estate.* § 956. After a divorce d vinculo matrimonii, the parties are competent to contract, and may marry again, the same as if they had never been married.® A wife may acquire a separate character, 'and may contract accordingly, by the civil death of her husband by exile,' and formerly by profession and abjuration of the realm. ^ Thus, if the husband be transported or banished for life, the wife may contract as a/emesofe.' And though the husband be trans- ported for a time only, yet it. should seem that during the limited period the effect of his absence is the same to the wife as if it had been perpetual.'" 64-71 ; Marsden's Sumatra, pp. 221-234 ; Eaffle's History of Java, vol. i. 320 ; Stanton's Ta-Tsing-Leu-Lee, sec. 116. ' Wilmore v. Wilmore, 15 B. Monroe, 62. 2 lb. 60. * lb. 61. * lb. 63 ; Thomberry v. Thoruberry, 4 Littell, 252. 5 4 Littell, 252 ; 15 B. Monroe, 63, supra. = Com. Dig. B. & F. c. 1, &c. ; 7 Moore's Eep. 666 ; 1 Salk. 115 ; 6 Cro. Eliz. 908 ; 3 Mod. 71 ; Cro. Car. 463 ; 1 Gow, 10, ante. 440, n. 37. « ' 2 H. 4, 7 a ; 1 H. 4, 1 a. * 1 Inst. 138, a ; 130, a. » Co. Litt. 133, a ; 2 B. & P. 231, n. a ; 3 Camp. 125. "> 2 Bio. Eep. 1197 ; 1 T. E. 7 ; 2 B & P. 231 ; Co. Litt. 133, a. n. 3 ; 1 B. & P. 358 1 and See 4 Esp. 37. [504 J § 958] GROUNDS FOR DIVOECB. [CHAP. XXXVI. § 957. Where the husband is an alien, who has deserted this kingdom, leaving his wife to act here as a f&rm sole, the wife may be charged as a feme sole after such desertion.^ So where the husband is an alien, and has never been to this country.^ Indeed, it has been considered that the preceding doctrine is confined to the case where the husband has never been in this country.' At all events, it is confined to cases only where the husband was an alien.'* Aiid where the husband resided ia the West Indies, and allowed his wife a weekly sum for her sub- sistence, it was held that she could not contract as a feme sole.^ And where an Englishman, employed in the service of the British government, residing in a foreign country, and having lands there, upon the cessation of his employment, in conse- quence of war between the two countries, sent his wife and family to this country, but continued to reside abroad himself, it was held that the wife could not contract as a feme sole.^ § 958. The rule of equity which requires that upon a rescis- sion of a contract the parties should be placed in statu quo, does not apply to cases of divorce d vinculo matrimonii.'' With respect to the argument which places a divorce d vin- culo matrimonii upon the ground of the rescission of an ordinary contract, upon which equity requires that the parties shall be restored to their original condition, as if the contract had never been made, we think the cases are too widely different to esta- blish, on the mere ground of analogy, the application to the case of a divorce, of the principle of the restoration to the status in quo as the general, and much less the universal rule. Where, as in this country, the divorce d vinculo is most commonly granted for matters occurring after the marriage, the husband, who by the law, as it existed recently, was invested with the absolute title to all movable property of the wife reduced to possession, and is still so invested, except as to slaves, could not ' 2 Esp. Eep. 554, 587 ; 1 B. & P. 357 ; 2 B. & P. 226 ; 1 N. R. 80 ; 11 East. SOI. « 3 Camp. 123. » ' Id. Ibid, sed gusere. * 11 East. 301 ; 1 N. R. 80. s 3 Esp. 18 ; 1 N. R. 80 ; 5 T. R. 679, 682. 6 2 B. & P. 226. ' Wilmore v. Wilmore, 15 B. Monroe, 60. [505] CHAP. XXXVI.] GEOUNDS FOE DIVOECE. [§ 958 with justice be held accountable upon the termination of the coverture by divorce, any more than on its termination by the death of his wife, for all of such property that he may have disposed of during its existence. And there is no more reason for holding him thus accountable in case of its termination by divorce than in case of its termination by death. If he held the property in trust for his wife, and as hers, without any interest in himself, there might be some propriety in holding him ac- countable for the whole of it to her in case of a divorce, or to her representatives in case of her death. But as he holds it absolutely for his own use, and subject to his own disposition during the coverture, with the obligation upon him to support his wife and family according to his estate and condition, there seems to be no basis in equity for such a responsibility for all property acquired by or through the marriage. Our laws have not considered it proper that he should be entirely relieved from this by a divorce, even for the fault of the wife, unless she had forfeited her claim upon him by open adultery. But they do not as a rule hold him responsible to the extent which has been noticed. [506] § 960] ALIMONY— GROUNDS FOB. [CHAP. XSXVII, CHAPTER XXXVII. ALIMONY-— GROUNDS FOR. § 959. Alimony cannot be recovered after husband's death for the time of his previous abandonment.' It is the policy of the law to impress those who enter into the marriage relation that it will be as permanent as their lives. A decree dismissing a bill filed for alimony is no bar to a sub- sequent suit for like causes subsequently occurring.^ Courts of Chancery in Kentucky have authority to decree alimony, independent of the act of Assembly.' Until the Kentucky statute of 1800, abandonment alone was not sufficient cause for divorce « mensa et ihoro, and for alimony.* A suit for alimony cannot under our statute be properly commenced until a year after the abandonment, and if it is, and the bill is not amended so as to show that it has continued a year and more, no decree can be pronounced.' To entitle a wife to alimony on account of cruel treatment, it must, according to the common law and the statutes of Ken- tucky, be such as to expose her person or health to danger; "mere austerity of temper, petulance of manner, rudeness of language, want of attention, occasional sallies of passion, if they do not threaten bodily harm," even blows inflicted in a sudden passion, not often repeated nor dangerous, will not justify a decree for separation and alimony.* § 960. It seems that where the conduct of the wife is so ' Glenn v. Glenn's Executors, 7 Monroe, 287. ' Griffin v. Griffin, 8 B. Monroe, 124. 3 Butler V. Butler, 4 Littell, 203. * Logan V. Logan, 2 B. Monroe, 144. 5 Butler V. Butler, 4 Littell, 202. 5 Finley v. Finley, 9 Dana, 52. [507] CHAP. XXZVII.] ALIMONY— GROUNDS POE. [§ 961 unkind and inhuman toward her husband as to justify his abandoning her, she forfeits all right to alimony at common law.' It is certain that in such case, if the husband has voluntarily supported her, although he has ceased to live with her, she can maintain no suit independent of the statute.^ The allowance for alimony cannot be for the term of the wife's life ; it may be during their joint lives, or until a recon- ciliation. The former court reserving the right to change or suspend the allowance according to circumstances, is the pre- ferable mode.' Alimony cannot be decreed to a wife who has abandoned her husband, unless the abandonment was without her fault, and made necessary for her safety or happiness.* A mere suspicion of having attempted to poison her husband is not sufficient ground for refusing a divorced wife any portion of his estate, although it may be sufficient reason for curtailing her allowance." The wife of a convicted felon does not upon his conviction become entitled to dower, but alimony only, by the Kentucky act of 1802.« § 961. Courts of Chancery in Kentucky, like Ecclesiastical Courts in England, grant divorces a mensa et thoro, and decree alimony to wives cruelly treated by their husbands.' The wife may be entitled to alimony where the mal-treatment is not such as to endanger her life.^ A decree for alimony should decree to the wife, as wife, an annuity or some other personal right to maintenance ; it cannot decree to her as a feme sole an absolute title to property.' . 9 ' Butler V. Butler, 4 Littell, 202. 2 lb. 203. ' Lqekridge v. Lookridge, 3 Dana, 29. * Boggess V. Boggess, 4 Dana, 309. * Dejarnet v. Dejamet, 6 Dana, 500. ' Statute Law, 1309 ; Wooldridge v. Lucas, 7 B. Monroe, 50. ' Lookridge v. Lookridge, 3 Dana, 28. 8 Thornberry v. Tliornberry, 2 J. J. Marshall, 324. ^ Maguire v. Maguire, 7 Dana, 189. [508] § 962] ALIMONY— GROUNDS FOE. [OHAP. XXXVII. A partition of tlie husband's estate and allotment to the wife is not in general the proper mode of allowing alimony. ■ A third or fourth part of the profits of his estate secured by bond, and the payment to be enforced by attachment, &c., is the more approved and provident way.* A divorce being granted to a wife, it would seem to follow that she is entitled to alimony.* Though the husband and wife, by an antenuptial contract, may agree that each shall retain their separate property, such contract presents no bar to a decree for alimony; but in such • case the allowance should be only for so much in addition to the wife's own resources as will maintain her in decency and comfort during the separation.' The decree for alimony should be so much only, as, with the separate property of the wife, shall maintain her in decency and comfort during the separation." The chancellor has power to change his decree for alimony, and reduce the allowance as the circumstances of the parties may require." A bill for alimony should state the complainant to be the lawful wife of the defendant, not merely that she lived with him as his lawful wife.° The court should, upon decreeing alimony, retain power over the case to enlarge or diminish the amount of the decree as the circumstances of the husband may indicate to be proper.' In cases where the chancellor decrees alimony, he should retain the case for the purpose of enlarging or curtailing the allowance as circumstances may warrant, and for keeping open the door of reconciliation." § 962. In cases of motions by the wife for allowance for sup- port during the pendency of a suit for alimony, the only subject ' Lookridge v. Lookridge, 3 Dana, 30. , ' Dejarnet v. Dejamet, 5 Dana, 499. ^ liOgan V. Logan, 2 B. Monroe, 149. " Ibid. ' Lookridge v. Lookridge, 2 B. Monroe, 258. " McDonald v. Fleming, 12 B. Monroe, 287. ' Mayhugh v. Mayhugh, 7 B. Monroe, 430. ° Logan V. Logan, 2 B. Monroe, ISO. [509] CHAP. XXXVII.] ALIMONY— GROUNDS FOR, [§ 964 of inquiry is the circumstances of the husband. It is impera- tively required by the statute that the court make provision for the support of the wife, unless she is living in adultery; testimony to the other points should, therefore, be excluded.' § 963. In the case of Billings v. Pilcher and Hauser,^ the doctrine is well settled that when the conduct of the husband toward the wife renders it necessary that she shall apply to the law for securing either protection or support, the husband will be chargeable for the expenses thus rendered necessary by his misconduct. Such is the case where the wife finds it necessary to her safety to exhibit articles of peace against her husband, and also where she is compelled to seek a separate maintenance in the form of alimony. But in cases where the marital rela- tion still subsists between the parties, the husband's liability arises from the obligation which the law imposes on him to support and protect his wife. § 964. He is not, however, according to common law prin- ciples, liable to the legal adviser whom his wife may employ in prosecuting a suit for a divorce. The reason is, that it is never necessary to her safety as wife to obtain a divorce from him, and when divorced absolutely, he is no longer under a duty to provide for her support and protection.^ There is thus a clear and manifest distinction between suits for alimony merely,, and suits for a divorce. In the former the wife seeks to live apart from her husband for her safety and protection, in consequence of his wrong doing, and he does not thereby become absolved from his duty and obligations as hus- band. But her object in the latter is to dissolve altogether the relation that exists between them, whereby he will be discharged front all his obligations as husband to support and protect her. Yet the husband is by statute made responsible for her costs in suits for divorce, as well as in suits for alimony.'' ' Whitsell V. WMtsell, 8 B. Monroe, 50. 2 7 B. Monroe, 458. » Wing V. Hurlbut, 15 Vern. 667 ; DoTsey v. Goodman, Wright, 120 ; Shel- ton V. Pendleton, 18 Conn. 417 ; Bishop on Marriage and Divorce, sec. 571. < Revised Statutes, p. 207 ; 18 B. Monroe, 615. [510] § 965] ALIMONY— GROUNDS FOB. [CHAP. XXSVII, § 965. In the case of Williams v. Monroe,' it is stated tliat in Billings v. Pilcher and Hauser,' the defendants instituted suit for Mrs. Billings against her husband for divorce and alimony. Before a decree was obtained a reconciliation was effected, and the suit ordered to be dismissed. Pilcher and Hauser brought an action against Billings for their fee for services rendered Mrs. Billings in her action for divorce, &c. The court said in this case, " that if the conduct of the hus- band toward her makes it necessary that she should apply to the law for securing either protection or support, or if it be such as justifies her in so doing, the husband will be chargeable for the expenses thus rendered necessary by his own improper conduct.'' The law makes the husband's liability depend upon the necessity of the measure, and if that existed. Lord Bllen^ borough said she might charge her husband for the expense of such services, as much as for necessary food or raiment.^ Where the wife exhibited articles of the peace against her husband, he was held liable to pay the bill of the attorney whom she employed for that purpose." The costs of the proctor employed by the wife to defend a suit for divorce are chargeable to the husband.' The case of Shelton v. Pendleton, ° is the only case we can find which conflicts with the decisions just quoted. In that case the court said that the attorney claiming his fee of the husband had looked for payment and gave credit to the wife alone, and for this reason the husband was discharged from liability. The whole case seemed to rest on this point. In this case the slightest supposition could not arise that Monroe looked to Mrs. Williams for the payment of his fee, as she had no separate estate out of which to pay it. In the case of Shelton V. Pendleton the wife had a separate estate, and the contract between the attorney and wife looked to a payment out of it.' ' I 18 B. Monroe, 515. 2 7 B. Monroe, 438. > ' Shepard v. MoKoul, 3 Camp. 326. •> 10 Ad. and El. 47. * Ex parte Moore, 1 De Gex. 172 ; Bell u. Bird, Sir G. Lee's Eocl. Cases, vol. i. 209 ; Bevor v. Bevor, 3 Add. 67 ; see Bright on H. and W. 8. « 18 Conn. 417. ' Williams v. Monroe, 18 B. Monroe, 515 ; Ballard v. Caperton, 2 J. P. Met- calf, 432. [511] CHAP. XXXVII.] ALIMONY— GROUNDS FOR. [§ 968 § 966. In Shelford on Marriage and Divorce,' the cases are collected on the exercise of the equitable and discretionary juris- diction of the ecclesiastical courts, in awarding permanent ali- mony to the wife on decrees of divorce a mensa et thoro. In aggravated cases a moiety of the husband's property has been given." Adopting the civil law in this particular, the Ecclesiastical Courts of England, and the Chancery Courts of the United States, have not unfrequently granted divorces a mensa et thoro, and secured alimony to wives whose husbands treated them babrbarously or cruelly.' § 967. Alimony is the maintenance secured by judicial au- thority during coverture, or until reconciliation. There being no divorce a vinculo, it cannot be right to decree any allowance for the term of the wife's life. If she survive her husband, she would also be entitled to dower. At his death the law provides for her ; and being then suce juris, there is no necessity for a decree for maintenance, nor any suitableness or propriety in such a decree. It is only while she is permitted to live apart from her husband, during coverture, that she can claim or be entitled to the protection of the chancellor, or to alirfeony from the husband. "A demand of alimony being personal, dies with the husband."^ When alimony is decreed, therefore, it should only be allowed during the joint lives of the husband and wife, or until reconciliation and recohabitation. No obstacle to the conjugal relations should be interposed by a decree for main- tenance, to which the wife is entitled only during her exfami- liation. § 968. But as reconciliation is a fact en pais, and as an artful husband might, for the purpose of frustrating a decree for ali- mony during separation, seduce an artless wife into a moment- ary reunion, and then expel her, or renew his cruelty, it would, we think, be better that alimony should be decreed their joint ' Pp. 592, 607. ^ See 2 Kent's Commentaries, 127, 128. ' Lockridge v. Lookridge, 3 Dana, 27, 28. * Fonblanqne, 3 Amer. edition, 62 ; 2 Deaanssure's Equity Reports, 206. [512] § 969] ALIMONY— GROUNDS FOE. [CHAP. X5XVII. lives simply, the court reserving the right to change the allow- ance from time to time, according to circumstances, or to revoke it altogether, on satisfactory proof of a voluntary and permanent reconciliation. Such was the practice of Chancellor Kent, sus- tained by principle and authority. Nor was it necessary or strictly proper to decree a partition of the plaintiff's estate. A reasonable allowance out of the annual value or profits of the husband's whole estate is all that is generally necessary or proper. It would not be right to decree to the wife during coverture dominion over the property of her husband, if a competent support out of the profits can be otherwise secured. The more approved and provident decree is to require a bond with approved security for such an annuity as shall be fixed by the court, payable in prescribed instalments — reserving the power to compel payment from time to time, by attachment, sequestration, or otherwise ; and unless the hus- band shall refuse to give security, a decree for partition of his estate would be not only unnecessary, but incongruous, unusual, and injurious. The usual if not universal allowance by the Ecclesiastical Courts of England has been an annual contribution out of the income of the husband's estate ; and such a provision seems to be, under ordinary circumstances, appropriate, unexceptionable, and all-sufficient.' § 969. In the case of Dejarnet v. Dejarnet,' where a suit for alimony was brought, the evidence tended to fasten on the wife strong suspicion of an attempt to poison her husband. The court said: "We are satisfied that it would not be unjust to her to refuse to allow her as much of the estate as she might have been entitled to by law had he been dead instead of being alive and divorced from her. But as the circuit judge decided that she was entitled to a divorce, surely, in the exercise of the sound judicial discretion delegated by the statute, he could not consistently decide that she had in equity or conscience forfeited all right to an interest in the estate ; and had she never been divorced, or entitled to a divorce, we should have been of the ' Miller v. Miller, 6 John. Chy. Eep. 91 ; 4 Hen. and Munf. 517. ' 5 Dana, 500. 33 [513] CHAP. SXXyil.] ALIMONY— GROUNDS FOE. I§ 969 opinion that there is no satisfactory or sufficient reason for cast- ing her out upon the world, not only destitute, but stripped of even the humble property which she carried to her husband upon marriage, and compared with which his own estate was large, and the more especially as she too had been grossly mal- treated by him. Their conimon child he may be compelled to maintain ; but her own maintenance after divorce must be pro- vided by herself alone, or by charity. "Upon full consideration we are, therefore, of the opinion — especially as it is far from being certain that she ever attempted to poison her late husband, and seemed in her bill to be willing to be satisfied with a restitution of the property he got by the marriage, that the Circuit Court ought to have made a decree in her favor to that extent ; and we are not sure that she is equitably entitled to more, or to any portion of her husband's own separate estate, independently of what he obtained from her by a union now forever dissolved." [514] 970] DIVORCE. [OHAP. XXXVIII. CHAPTER XXXVIII. DIVOECE. § 970. Ik Cabell v. Cabell,' the court said: "In Dartmouth College V. Woodward,^ Chief Justice Marshall observed that the Constitution of the United States had never been under- stood to restrict the general right of the legislatures of the States to legislate on the subject of divorces." A similar view seems to have been entertained by Judge Story, in the same case. This doctrine seems, likewise, to have been acquiesced in by Chancellor Kent, who concedes " that in ordinary cases the constitutionality of the laws of divorce in the respective States is not questioned."' So in Connecticut it was held that legislative divorces for cause were constitutional and valid.* We are aware of no case in Kentucky in which this question has been directly raised or decided ; but the general doctrine that the marriage contract is not within the constitutional inhi- bition has been certainly approved of by this court impliedly, if not directly. In Maguire v. Maguire,* the court, after summing up various considerations distinguishing marriage from ordinary contracts, uses the following language : "And, therefore, marriage being much more than a contract, and dependent essentially on the sovereign will, is not, we presume, embraced by the constitu- tional interdiction of legislative acts impairing contracts." In Berthelomy v. Johnson,' the power of the legislature to authorize a divorce and dissolution of the marriage contract for cause, when judicially ascertained, is expressly conceded. And in Gaines v. Gaines,' in which it was held the legislature ' 1 Meto. Rep. 326. ,« 7 Dana, 184. 2 4 VTheaton, 618. « 3 B. Monroe, 90. ' 2 Kent's Com. 108. ' 9 B. Monroe, 308. « 8 Conn. Rep. 541. [515] CHAP. XXXVIII.] DIVOEOE. [§ 971 could not, by special act of divorce, sought by one of the par- ties against the consent of the other, affect prejudicially the rights of property of the latter, growing out of and incident to the Eoarriage relation, the general power of the legislature over the subject of divorces and the contracts of marriage is not only not questioned, but is virtually conceded. In addition to these almost direct judicial recognitions of the power of the legislature, to some 'extent, over the marriage re- lation and contract, and the rights of the parties incident thereto, and in corroboration of the correctness of the doctrine that the power exists, we have had frequent and repeated instances of its exercise under the Constitution of 1799, acquiesced in by the executive, and, except in the cases referred to, never called in question. § 971. In Kentucky, since the adoption of the Constitution of 1799, and up to 1850, every department of government seems to have recognized the marriage relation, as has been said, "as an organic institution, subject to the sovereign power of the State, not like mere contracts, to be dissolved by the mutual consent only of the contracting parties, but to be abrogated by the sovereign will, either with or without the consent of both parties, whenever the public good, or justice to both or either of the parties, will be thereby subserved," and to have regarded "the obligation as created by the public law, subject to the public will, and not to that of the parties." In view, then, of the almost universal recognition throughout the Union of the power of State legislatures over the marriage contract ; the repeated exercise of such power by the legisla- ture of this State prior to 1850; the implied if not express recognition of its existence by the courts of the State so far as any opinion has been expressed ; the general acquiescence in the right of the legislature to regulate the relations and rights of the husband and wife, and in the absence of any judicial authority in this or any other State (except in Missouri and Florida) contravening such power, we are not willing to say that the legislature, in the enactment of the divorce referred to, with the assent of the parties, violated the provisions of the federal and State constitutions, forbidding laws impairing the obligations of contracts. [516] § 972] DIVORCE. [CHAP. XX2VIII. With regard to the objection that the enactment in question ■was a usurpation of judicial authority, and therefore void, we deem it equally untenable. The act complained of is, it is true, not what can be properly called a rule of action, or, as it is said, a public law, "prescribing what is right and prohibiting what is wrong." It is a special or private act operating on the parties named, and no further. But it is not, therefore, a judicial sentence, nor is it the less operative as a law to the extent it was designed to go. § 972. Blackstone* says that "statutes are either general or special, public or private. A general or public act was a universal rule that regards the whole community. Special or private acts are rather exceptions than rules, being those which only operate on particular persons and private concerns." And this distinction is still kept up and familiar. It win not do, therefore, to pronounce an act a judicial sen- tence and a usurpation of judicial power by the legislature, because it is special or private in its operation, and its effect is limited to the parties or subjects named, or because the object is attained by the enactment itself. Such a conclusion would be as remarkable in its character as it would be disastrous to a large portion of the local and special legislation which abounds in our statute books. There can be as little doubt of the power of the legislature to enact special as general laws. Both, when not in violation of the Constitution, are equally valid. But it is earnestly contended that because this enactment dissolves the marriage contract, it is necessarily an assumption of power by the legislative department to do that which the judicial department alone could do.; and the cases of Maguire V. Maguire, and Gaines v. Gaines, supra, are referred to with confidence as authority upon this point. We have already seen that the case of Maguire v. Maguire concedes in terms that the contract of marriage is not within the constitutional prohibition of laws impairing contracts, but is subject to the legislative will ; and it seems to us that nothing is said in the case which will warrant the conclusion contended for on this branch of the question. ' 1 Vol. 86. [517] CHAP, XXXVm.] DIVOECB. [§ 974 § 973. After discussing the character of the marriage con- tract, and concluding that the "obligation is created by the public law, and subject to the public will," the opinion proceeds to say: "So far as a dissolution of a marriage by public authority may be for the public good, it may be the exercise of a legislative function ; but so far as it may be for the benefit of one of the parties, in consequence of a breach of the contract by the other, it is undoubtedly judicial. And when thus alto- gether judicial, it may be beyond the authority of a Kentucky legislature, which, under our State Constitution, cannot exercise any power clearly and purely judicial." Now to what extent the public may have been benefited, or how far the legislature may have regarded the public good promoted by the act in question, is an inquiry we need not pursue. It is enough to know that body, in, the exercise of its wisdom and discretion, enacted the law, and the presumption exists that they were satisfied that to some extent it had or would have that effect; and where an act of the legislature is not interdicted by the fundamental law of the land, it is not for this department of the government to say that there was no necessity for the enactment, or that it was not promotive, to some extent, of the public good. Be this as it may, and it is not important to the present inquiry, it is sufficient for our purpose that the facts of this case do not bring it within the principle laid down. § 974. It is obvious that the enactment was not " for the benefit of one of the parties, in consequence of a breach of the contract by the other." It was procured with the assent of both, for the benefit of both, and both acquiesced in it for many years, enjoying rights and privileges which they could not otherwise have been allowed. It does not appear that the act was in consequence of a breach of the contract ; and no feature is presented which, under the rule quoted, would make the dissolution enacted by the legislature a judicial act. The case of Gaines v. Gaines presented a state of facts dis- similar to this in many important features. ' There a proceeding by cross-bill had been commenced by the husband for divorce, and it was strenuously resisted by the wife. Pending the action, the husband, against the consent of [51S] § 975] DIVORCE. [chap, xsxviii. the wife, applied to the legislature and obtained a legislative divorce. This act of the legislature was exhibited by him in an amended answer, and before the termination of the suit he died. The widow asserted claim to dower, and relied that the legislative divorce thus obtained against her consent, and whilst a court of competent jurisdiction had cognizance and control over the controversy, was an unconstitutional assumption of power by the legislature, and void. So the Circuit Court held, and its decision was approved by this court.' The question in the case, as stated by the court, was "not simply whether the legislature may under any circumstances constitutionally enact that A. be divorced from B., but whether, when it is manifest that a party, after having sought a divorce in a judicial tribunal, and while his suit is there pending, aban- dons that form and resorts to the legislative power, for the sole purpose of affecting and defeating the legal and equitable rights of his wife in his property, the divorce granted by the legisla- ture on such application can, without disregarding the division of powers, and distinction of departments, as established by the Constitution, and the security of private rights of contract and of property therein granted, be considered as affecting to any extent the rights of property involved in the question of divorce." § 975. Upon this question the court, after discussing it at length, came to the following conclusion :— "We are of opinion that whatever power, to be exercised in view of the public good, the legislature may have to enact divorces in special cases, as it cannot, even for the public goodj change the right of private property from one to another with- out compensation, much less can it do so by a special act of divorce, sought by one of the parties against the consent of the other, with the purpose or effect of operating upon the rights of property incident to the marriage relation, as created and sustained by the general laws applicable to that relation. And the wife having taken no advantage of any privilege afforded by the divorce, she is in no manner precluded from contesting its operation." ' 9 B. Monroe, 308. [519] CHAP. XSSTIII.] DIVORCE. [§ 976 From an examination of the opinion, it will be perceived that it nowhere controverts the power of the legislature to enact a special act of divorce, when it is founded upon the mere will of the legislature, without reference to the breach of any exist- ing contract or law. The conclusion rests mainly upon the fact that the legislature in that particular case undertook to oust the court of its jurisdiction, and without the consent and against the will of the wife granted the husband a divorce, and thus attempted in effect to deprive her of her property without com- pensation. The question as to the power of the legislature to enact a special act of divorce, without reference to the breach of a contract or law, is left precisely as it stood in Maguire v. Maguire,* and the principle there stated may be, therefore, re- garded as having been acquiesced in — at any rate, not denied. § 976. Now the inquiry comes, is there any feature of the case under consideration that brings it within the rule laid down in Gaines v. Gaines ? The enactment in this case is made without reference to the breach of any existing contract or law ; for it does not appear that either party had been guilty of a breach of conjugal or legal duty, or of any of the obligations of the marriage contract. On the contrary, as appears from the facts stated, the separation was the voluntary act of both, not superinduced by maltreat- ment or misconduct of either; and its terms satisfactory not only to both parties, but approved of by the friends and advisers of the wife. The divorce, or the special act complained of, was not procured against the will or without the consent of the wife, but in accordance with her will and with her consent. Nor can it be said that she was deprived of her property without com- pensation ; for she was compensated, and, as she then and sub- sequently admitted, in a manner entirely satisfactory to herself and friends. In this case there is wanting every material ground upon which the decision in that rested ; and not only so, but there is a feature in this which was not in that, and which, had it been, would, as the court clearly intimate, have sufficed to defeat the claim of the wife. "We allude to the fact that Mrs. Cabell took ' 7 Dana, Ky. Eep. 184. [520] § 976] DIVORCE. [CHAP. XXXVIII. advantage of the separation and divorce in this case, and enjoyed rights and privileges thereunder which she could not have enjoyed otherwise. As the agreed facts show, she received the property and money stipulated to be paid her, resumed her previous name, removed from the State, did business, and bought and sold real estate, and in every other respect enjoyed all the rights and privileges of a feme sole. The enjoyment of these rights for a period of about thirteen years, together with her written consent to the obtention of the divorce, shows con- clusively that she acquiesced in it ; and having availed herself of all the advantages afforded by the divorce, a court of equity should not at such a late day listen to her application for relief. This court, in Gaines v. Gaines, assign as one of the grounds for affording relief to the wife, that she had taken " no advantage of any privilege afforded by the divorce," and was, therefore, not precluded in any manner from contesting its operation. The attitude of Mrs. Cabell is wholly different, and she is, and ought to be, precluded in a court of conscience from questioning the validity and operation of a legislative divorce brought about with her express consent. Her demand for dower was rightfully dismissed. [52lj CHAP. XXXIX.] LEGAL EIGHTS AND REMEDIES. [§ 977 CHAPTEE XXXIX. LEGAL EIGHTS AND REMEDIES. § 977. A woman's personal property by marriage becomes absolutely her husband's, and at his death he may leave it entirely away from her ; but if he dies without a will she is entitled to one-third of his personal property, if he has children ; if not, to one-half. By the marriage the husband is absolutely master of the profits of the wife's lands during coverture, and if he has had a living child, and survives the wife, he retains the whole of those lands, if they are estates of inheritance during his life ; but the wife is entitled only to dower, or one-third out of the husband's estates of inheritance, if she survives ; but this she has, whether she has had a child or not. A husband can be tenant by the curtesy of the trust estates of the wife, though the wife cannot be endowed of the trust estates of the husband.' With regard to the property of women there is taxation without representation ; for they pay taxes without having the liberty of voting for representatives ; and, indeed, there seems to be no substantial reason why single women should be denied this privilege. Husband and wife, in the language of the law, are styled haron and feme ; the word baron or lord attributes to the hus- band not a very courteous superiority. We might be inclined to think this merely an unmeaning technical phrase, if we did not recollect that if the haron kills his feme it is the same as if he had killed a stranger or any other person ; but if the feme kills her haron it is regarded by the laws as a much more atro- cious crime ; as she not only breaks through the restraints of ' 3 P. Wms. 229. [522] § 978] LEGAL EIGHTS AND KEMEDIES. [OHAP. SXXIX. humanity and conjugal affection, but throws off all subjection to the authority of her husband. Therefore the law denomi- nates her crime a species of treason, and condemns her to the same punishment as if she had killed the king. And for every species of treason (though in petit treason the punishment of men was only to be drawn and hanged), till the 30 George III. c. 48, the sentence of women was to be drawn and burnt alive.' § 978. By the common law all women were denied the benefit of clergy ; and till the 3 and 4 W. & M. c. 9, they received sentence of death, and might have been executed for the first offence in simple larceny, bigamy, manslaughter, &o., however learned they were, merely because their sex precluded the pos- sibility of their taking holy orders ; though a man who could read was for the same crime subject only to burning in the hand and a few months' imprisonment.' Every agreement of any nature entered into by a married woman, without the express or implied consent of her husband, is absolutely void,' except, indeed, in the instance of the queen consort,' or of a deed enrolled or covenant on the warranty of a fine, or on a covenant running with the land of the wife de- mised by her during coverture," and contracts binding her by special custom ;" and this rule prevails so strongly that a feme may avail herself of her coverture to defeat a contract, though she have been guilty of fraud ;' nor can a married woman even state an account of a debt contracted hefm-e marriage.' If the wife sell or dispose of the money or goods of the husband, with- out his assent, the sale is wi'c?, and the husband may have trover for the goods ; and if she lose money at cards, the hus- band may bring an action for the money.' ' 4 book, 204, » 4 book, 369. » 1 Sid. 120 ; 1 Lev. 4 ; 1 Mod. 128, S. C. ; 2 Atk. 453 ; 2 Wils. 3 ; 8 T. R. 545 ; 2 B. & P. 105 ; Palm. 312 ; 1 Taunt. 217. ^ Co. Lit. 133. » 2 Sannd. 180, n. 9. '4 Comp. 26. 8 Hob. 225 ; 34 and 35 Hen. VIII. o. 88. 8 2 Esp. 716 ; 1 Taunt. 212. 9 Com. Dig. Bar. & F, [523] CHAP. XXXIX.] LEGAL EIGHTS AND REMEDIES. [§ 979 § 979. As a consequence of tte same doctrine, the married woman cannot in general be made a bankrupt.^ In equity the same rule as to the husband's liability for the wife's contracts applies;^ and a court of equity cannot make the husband liable, in respect of the fortune he may have had with his wife, for her debts contracted before marriage.' Though, if he take out administration to her, he will be liable to the extent of what he receives as her assets.'' By the custom of London, where a feme covert of a husband useth any craft in such city on her sole account, whereof the husband meddleth nothing, such a woman shall be charged as a feme sole concerning everything which toucheth the craft ; and if the husband and wife be impleaded in such case the wife shall plead as a feme sole, and if she be condemned she shall be committed to prison till she has made satisfaction, and the husband and his goods shall not in such case be charged or impeached.' This custom must be construed with strictness.* The trade must be carried on within the city, and on the wife's sole account ; and if the husband had any concern in it, the case will not be protected by the custom.' A feme covert sole trader cannot by this custom execute a bond, but only make herself liable to simple contract debts.' A person so trading within the city is, however, liable to be made a bank- rupt, though a married woman.' Though the chastity of women is protected from violence, yet a parent can have no reparation by the law from the seducer of his daughter's virtue, but by stating that she is his servant, and that by the consequences of the seduction he is deprived ' 1 Mount, on B. L. 4. 2 Preo. Cli. 255 ; 2 Vern. 118 ; CeL Ca. Ch. 19 ; 3 Mod. 186. ' 1 P. Wms. 461 ; 3 P. Wms. 410 ; Forrester, 173 ; see Freeman, 231. * Forrester, 172 ; and see post, as to enforcing in equity the wife's con- tracts. « See 3 Burr, 1776 ; Cro. Car. 67 ; 10 Mod. 6 ; 2 B. & P. 93, 101 ; 3 Chit. Com. Law, 37. <■ See 1 Roll. Ab. 567; 2 Leon. 109. ' See Cro. Car. 68 ; 3 Burr, 1782, 1785. 8 4 T. R. 363. 9 1 Atk. 206 ; 3 Burr, 1783 ; 1 Mont. B. L. 4. [524] § 980] LEGAL EIGHTS AND REMEDIES. [CHAP. SXXIX. of the benefit of her labor ; or where the seducer at the same time is a trespasser upon the premises of the parent. But when by such forced circumstances the law can take cognizance of the offence, juries disregard the pretended injury and give damages commensurate to the wounded feelings of the parent. Female virtue, by the temporal law, is perfectly exposed to the slanders of malignity and falsehood. For any one may proclaim in conversation that the purest maid or chastest matron is the most meretricious and incontinent of women with im- punity, or free from the animadversions of the temporal courts. Thus female honor, which is dearer to the sex than their lives, is left by the common law to the sport of an abandoned calum- niator.^ § 980. A covenant or contract of a man with a woman is not destroyed by their marriage, where the act to be performed is future, to be done after the marriage is determined, as to leave his wife so much after his death." So the marriage does not defeat a breach before.^ And the courts of equity admit a doubt in presenti, or which might arise during coverture, to be extin- guished at law by the marriage, upon the motion that husband and wife are but one person in law, and cannot sue each other; yet, as they may sue each other in equity, a bond or other security, though void at law, shall be sustained in equity, at least as evidence of an agreement.'' And an agreement to make a marriage settlement shall be decreed in equity after the mar- riage, though it was to be made before the marriage.' So an agreement to permit the wife to dispose of so much money during her coverture.* And if a wife charge her estate with payment of her husband's debts, or apply her separate estate to such purpose, and it does not appear to have been intended by her as a gift to her husband, equity will decree the husband's 1 3 took, 125. « Hut. 17 ; Hob. 216 ; 2 Cro. 571 ; Cro. Car. 376 ; 1 Ch. Ca. 21 ; 1 Salk. 326 ; Paim. 99 ; Garth. 512; Com. Dig. B. & F. D., 5 T. Rep. 361. 3 Skin. 409. ' 2 P. Wms. 243 ; 2 Vern. 480-1 ; 2 Atk. 97 ; Preo. Ch. 41 ; Diok. 140. 5 2 Vent. 343. 6 Sub. 1 Ver. 409. 525] CHAP. XXXIX.] LEGAL EIGHTS AND REMEDIES. [§ 981 assets to be applied in exoneration of her estate, or in repay- ment of the money advanced.' § 981. Though the wife in general is incapable of making a valid contract, so as to bind her husband, yet in some cases he will be rendered liable, wheri his assent to her contract can be presumed, or was expressly given. Thus, during cohabitation, the law will from that circumstance presume the assent of the husband to all contracts made by the wife for necessaries, which are suitable to the husband's degree and estate ; and misconduct short of the adultery of the wife will not destroy this presump- tion.^ And this liability for necessaries is not confined to cases where they are supplied to or for the use of the lawful wife of the party to be charged. A man cohabiting with a woman, and allowing her to assume his name, and appearing to the world as his wife, and in that character to contract debts for necessa- ries, will be liable, though, indeed, the tradesman knew the circumstances,' and though the man be married to another woman ;* but this rule only holds during cohabitation.' When a man marries a widow and receives her children into his family, although he was not bound by the act of the marriage to main- tain the children,' yet, having treated them as part of his family, he is liable for contracts made by his wife in his absence for the education of the children.' If the husband be an infant, yet he is liable for necessaries furnished to his wife and children, their interest being considered as identified with his own." This legal presumption of assent may in particular cases be rebutted; as, for instance, in an action brought for the price of dresses supplied for the wife by her order, evidence may be given that she was not in want of articles of this kind, or that the husband had given notice to the tradesman not to trust her upon credit." ' 2 Vera. 347, 689 ; 1 Bro. P. C. 1 ; 2 Vern. 604 ; 1 P. Wms. 264 ; 2 Atk. 384 ; 1 Fonbl. on Eq. 102-3. 2 2 Lo. Kaym. 1006 ; 1 Salk. 118. » 2 Esp. 637 ; 4 Camp. 216. « 4 T. E. 118 ; East. 76. * 1 Camp. 245, 249. ' 3 Esp. Rep. 1. 5 4 Camp. 215. s j st,.^. igS ; Bui. N. P. 155. » 2 Ld. Raym. 1006 ; 1 Salk. 118. [526] § 982] LEGAL RIGHTS AND EEMEDIE3. [CHAP. XXXIX. So where in an action of assumpsit for goods sold it appeared that the plaintiff, a jeweller, in the course of two months deli- vered articles of jewelry to the wife of the defendant, amounting in value to £83, and that the defendant was a certificated special pleader, and lived in a ready furnished house, of which the annual rent was £200 ; that he kept no man servant ; that his wife's fortune upon her marriage was less than £4000, and that she had at the time of her marriage jewelry suitable to her con- dition, and that she had never worn in her husband's presence any articles furnished her by the plaintiff. It appeared also that the plaintiff, when he went to the defendant's house to ask for payment, always inquired for the wife, and not for the defendant. It was held that the goods so furnished were not necessaries, and as there was no evidence to go to the jury of any assent of the husband to the contract made by his wife, the action could not be maintained.' § 982. And where a husband makes an allowance to his wife for the supply of herself and family with necessaries during his temporary absence, and a tradesman, with notice of this, sup- plies her with goods, the husband is not liable.^ Money lent to a married woman cannot be recovered against the husband,' even though the money be laid out in the purchase of neces- saries ; though, indeed, in a court of equity the lender would in such case be entitled to stand in the place of the tradesman by whom the goods were supplied.' Where a married woman buys materials for clothing, and pawns them before they are made up, the husband is not liable, for they never came to his use; though it would be otherwise if the clothes were made up and used by the wife, although they may be afterwards pawned by her.' Where a party contracts solely with and gives credit to the wife, he cannot sue the husband, though for necessaries ; and this, although the wife lives with him, and he sees her in pos- ' 3 B. & C. 631. =! 4 B. & A'. 252. ' 1 Salk. 387 ; 1 P. Wms. 482 ; Prec. Ch. 502. Mb. '1 Salk. 118 ; Com. Dig. B. & F. [527] CHAP. XXXIX.J LEGAL BIGHTS AND EEMBDIES. [§ 984 session of some of the goods, unless the husband by any act admits that he considered himself the debtor." The husband is liable to pay the wages of a servant hired by the wife, after the servant had performed the service with the knowledge of the husband.^ § 983. Where the husband and wife are separated, and live apart from each other, still the husband will be liable upon a contract for necessaries made with her, where his assent can be implied. Thus, where the husband deserts his wife, or turns her away without any reasonable ground, or refuses to admit her into his house, or compels her by ill usage, indecency of demeanor, or severity, to leave him ; in all these cases he gives the wife a general credit, and is liable to be sued for necessaries furnished her.' And this, although he has given a general notice to all persons, or even a particular one to the individuals supplying her with necessaries, not to give credit to her." § 984. And a husband who without cause turns away his wife, is liable for costs she incurs in articles of the peace against him.' But the husband would not be liable at law for money lent to his wife, though laid out in the purchase of necessaries ; but he would be liable in equity.^ And a person paying the debts of the wife, contracted while so separated, cannot sue the husband at law.'' Though when a husband goes abroad and leaves his wife, who dies in his absence, and the wife's father pays the expenses of her funeral, in a manner suitable to the husband's rank and fortune, the amount may be recovered from the hus- band, though expended without his knowledge or consent.' This liability for necessaries does not arise where the wife voluntarily leaves her husband without his consent, and where he gave her no sufBcient cause for leaving, provided the trades- ' 5 Taunt. 356; 1 Car. Rep. 16; 3 Camp. 22; 4 Camp. 70; 2 Sti-a. 706 ; 4 B. & A. 255. ^ 1 Esp. 200 ; 6 T. R. 176. ' 1 Esp. 441 ; Lord Raymond, 444 ; 4 Esp. 42 ; 3 Esp. 251 ; 2 Stra. 1214 ; 3 Taunt. 421 ; 2 Stark. 87. « 4 Esp. 42 ; 1 Sebr. N. P. 5 ed. 275. * 3 Camp. 326 ; see, also, ante, sees. 964^6. ' 1 H. Bla. 92. « 1 Salk. 387 ; 1 P. Wms. 482 ; Preo. Ch. 502. ' Ibid. [528] § 985] LEGAL EIGHTS AND EBMEDIES. [OHAP. XXXIX. man has notice of her husbanrl's dissent to her absence.' So where the wife has a separate maintenance from the husband suitable to his station, which is actually paid, and the tradesman has notice of this, or the means of knowing it, by its being notorious in the neighborhood, the husband will not be liable even for necessaries furnished to her." But a promise by the husband to pay the amount of a debt contracted by the wife, though she was allowed a separate maintenance, and this was known, is binding.^ § 985. Where the wife has been guilty of the crime of adul- tery, either during cohabitation with her husband, or in a state of separation from him, her claims for maintenance and pro- tection are forfeited by her misconduct.'' And where the wife eloped with an adulterer, it was held that the husband should not be charged for necessaries, although the tradesman who supplied them had no notice of the criminality.* But in these cases the husband should take due measures to prevent the wife gaining credit in his name ; and where the wife, having committed adultery, was left by the husband in his house with two children, bearing his name, but without making any pro- vision for her, in consequence of the separation, it was held that, although she continued in a state of adultery, the husband was liable for necessaries furnished to her, on the ground that it did not appear that the tradesman knew the facts of the case." And if, after the wife's criminality, the husband again receives her into his house, his liability for necessaries revives ; and if he afterwards expel her from his house, he will be liable, although due caution be given not to trust her.' Though husband and wife live separate, and provision be made for her maintenance, yet if during the separation the wife ' 2 Stra. 1214, in note ; 2 Ld. Kaym. 1006 ; 1 Lid. 109 ; 1 Ler. 4 ; 2 Stark. 87 ; Stra. 875. 2 4 Camp. 70 ; 4 B. & A. 254 ; 2 New Rep. 144 ; 8 Taunt. 343 ; 3 Egp. 250 ; Salk. 116 ; Ld. Ray. 444 ; 2 Stark. 88. ' 2 Stark. 117. ' Stra. 875 ; 6 T. R. 603 ; 1 Lebr. N. P. 5 ed. 272. 5 Stra. 647, 706. 6 1 Bos. & P. 226 ; 6 T. R. 603. ' 11 Vem. 536 ; 4 Esp. 41-2 ; 1 Salk. 19 ; 6 Mod. 172. 34 [529] CHAP. SSXIX.J LEGAL EIGHTS AND EEMBDIES. [§ 986 buys necessaries, and the parties become reconciled, and the necessaries come to the use of the wife in the family, the hus- band is bound.^ A wife who is wrongfully turned out of doors by her hus- band, carries with her an implied credit, and authority to charge her husband for necessaries.^ If the wife commit an assault and battery in the presence of the husband, to which he assents, they are jointly liable. A jury may infer the consent of the husband from his presence, and other acts.^ Where the husband and wife are sued jointly in trespass, assault and battery, though not so named in the declaration ; if the evidence prove such relation, it is no cause for arresting the judgment."* Although the husband has had a great fortune with his wife, if she dies before him he is not liable for her debts contracted before marriage, either at law or in equity, unless there be some part of her personal property which he did not reduce into his possession before her death, which he must afterwards recover as her administrator; and to the extent of the value of that property he will be liable to pay his wife's debts, dum sola, which remained undischarged during the coverture.* § 986. Glioses in action which accrue to the wife dwing cover- ture, such as bonds or legacies to her, may be appropriated or otherwise disposed of by the husband. But if he die without receiving or making any disposition of them, they survive to the wife.° The same authorities show that if the husband survive the wife, he is entitled to legacies or other choses in action which accrued to her during coverture.' ' Remiok v. Fioklin, 3 B. Monroe, 156. * Billing V. Pilcter and Hauser, 7 B. Monroe, 459. ' Phillips V. Phillips, &o. 268. • Ibid. = 1 P. Wms. 468 ; 3 P. Wms. 409 ; Rep. T. Talb. 173. 6 Miller v. Miller, 1 J. J. M. 169 ; Kent's Comm. 135 ; Com. Dig. Baron and Feme E. ; 1 Chitty on Pleading, 18, 19, 20 ; 4 Henry & Munf. 453 ; Banks v. Marksberry, 3 Litt. R. 282. ' Miller v. Miller, 1 J. J. M. supra ; Com. Dig. Baron and Feme, 3 ; Toller on Executors, book 2, oh. 6, see. 2. [530] , § 988] LEGAL EIGHTS AND REMEDIES. [CHAP. 2SXIX. So the husband has the power to release and discharge the debts, and to charge the securities, with the consent of the debtor.' § 987. So in Bybee, &c., v. Sharpe and Wife,* it is said : " A man may bar his wife's right of survivorship to her cJioses in action by a release.^ A man may discharge any debt due, or any wrong done to his wife before or after marriage." The husband's release of his wife's debt due before coverture is good.' The husband, therefore, in this case had power over the whole subject. He had power in the name of himself and wife to call upon the guardian by suit for another settlement. He had power to make the settlement himself; to receive the whole or any part in the name of the whole demand, or to release or dis- charge the money due to his wife, or the wrong done to her by a wrongful' settlement, and if he is bound, she is bound. Would not an acknowledgment under seal that his wife's demand had been paid to him be a complete discharge? Or his acknow- ledgment that he had received all but a certain sum, or that upon settlement he found nothing due, or that in settlement he found his wife indebted so much, which he bound himself to pay? Are not all these acts essentially the same, to the extent of the acknowledgment? Do they not to that extent appropriate any right which the wife had, and extinguish it to the extent that satisfaction is acknowledged? Suppose a husband assume to settle an account existing between his wife and a third person, and finding a balance in her favor, takes a bond for it, payable to himself, is not her right forever gone ? And is not the case the same, if, finding the balance against her, he assumes to pay it? Under the statute of distributions it is held that the husband is entitled for his own benefit ywre mariti to administer and take all the chattels real, things in action, and every other species of personal property, whether reduced to possession or con- ' 2 Kent's Com. 135 ; 1 Roper on Husband and Wife, 227, 237. 2 4 B. Monroe, 323. ' Clancy on Rights, 111. * Shepherd's Touchstone, 333. 6 Roll. Ahr. Release D. [531 J CHAP. XS5IX.J LEGAL EIGHTS AND EEMEDIES. [§ 989 tingent, or recoverable only by suit.' But if tbe wife leave choses in action, not reduced into possession in ber lifetime, tbe bus- band will be liable, as I shall have occasion to observe hereafter,- for her debts dum sola to that extent — for those choses in action will be assets in his hands.* " It has been considerably discussed in the books," says Chancellor Kent,' "by what title the husband, surviving his wife, takes her choses in action. It has often been said that he takes by the statute of distributions, as her next of kin. But, from the language of the English courts, it would seem to be more proper to say that he takes under the statute of distri- butions as husband, with a right in that capacity to administer for his own benefit." The description of the next of kin of the wife can in no respect apply to the husband." He is entitled to her personal property, as has already been said, jure mariti. Her personal property vests in him by the marriage; and at her death, if it becomes necessary for him to have an administration to enable him to get in her personal property, the administration granted, is granted to him as husband. He is not next of kin to the wife. Nor is she to him. The statute gives administration to the widow, and she takes as such.* § 989. Several interesting questions, connected with the sub- ject now under consideration, arose in the case of Jones' Admi- nistrator V. Warren's Administrator.^ The following brief statement of the facts is contained in the opinion of the court : Henry Warren borrowed from PoUy Jones, while she was a feme covert, and living with her husband, one hundred dollars, for which he gave a promissory note, payable to her on or before the first of June, 1832. Both she and Warren having after- wards died intestate, before the note had been paid off, or sued on, or in any way disposed of, h&r administrator brought a peti- tion and summons upon it against the administrator of Warren, to which he pleaded that her husband, Thomas Jones, survived ' Whittaker v. Whittaker, 6 Johns. 112 ; 2 Kent's Coram. 135. 2 2 Kent's Comm. 135. ^ 2 Comm. 136; Lowry v. Houston, 3 Howard's Miss. Rep. 394. ' Per Lord Loughborough, in Watt v. Watt, 3 Vesey, Jr., 346. ' lb. supra, and sec. 988. e 4 D^na, 333. [532] § 990] LEGAL EIGHTS AND REMEDIES. [OHAP. SXXIX. her and was still living. 'And the court having overruled a demurrer to the plea, judgment was rendered in bar of the suit. The correctness of the judgment on the demurrer was the ques- tion to be decided in the case. § 990. Ch. J. Robertson, who delivered the opinion of the court, observed : "The choses in action of the wife at the time of her marriage vest in her husband sub modo only; that is, on condition that he reduce them to possession, or otherwise dis- pose of them effectually during the coverture. If the wife sur- vive, no such disposition having been made, they survive to her ; but if the husband survive, he may be entitled to them as her administrator ; and the statute of distribution having been construed as not applying to him, he may, therefore, after pay- ing her debts, appropriate them to his own use, whenever reco- vered by him as her administrator. And hence it has been decided as a settled doctrine, that, if any other administer, the husband will be entitled to the residue remaining after the debts of his wife are paid. " But as the wife has no legal capacity to take in her own right during coverture, a chose in action which accrues to her while she is covert, vests absolutely and eo instanti in her hus- band by operation of law. And hence it was long doubted whether, if she survived her husband, such a chose in action would belong to her as survivor. It has been determined, however, that in most cases it would.* So a note assigned to Eveline King vested the legal title to it in her husband, Simon King, and her own indorsement (the husband living) could not pass it ; that of the husband was requisite."^ The probable reason for this doctrine is, because it may be presumed from the husband's conduct that he elected that the wife should take and enjoy a beneficial interest in her own right as survivor. And consequently, on the same principle, it is well settled that for a chose in action, accruing on the side of the wife during coverture, the husband may sue either alone or in conjunction with his wife, and that if he elect to sue in ' Day V. Pargrare, cited in Philliskirk v. Pluokwell, 2 Maule & Selw. 396, and other cases cited in the case. 2 Harris v. Culver, 9 B. Monroe, 365. [533] CHAP. XXXIX.] LEGAL RIGHTS AND REMEDIES. [§ 991 the latter mode, and die before execution, the right belongs to the surviving wife. But the same authorities, and very many- others, show that a surviving husband is entitled, as husband, to the undisposed of choses in action which accrued in right of his wife during coverture. The prevailing and more consistent doctrine seems to be, that in such cases the survivor will be entitled as survivor. And, therefore, to be consistent, the law should give the right of actioa to the survivor, in his or her own personal right and character. And such appears clearly to have been understood to be the true doctrine by Baron Oomyns, and by this court.' The court concluded that the legal title to the obligation survived to Thomas Jones, and that, therefore, he alone had a legal right to sue on it, in his own name, and for his own benefit. Where a chose in action has accrued to the wife before mar- riage, she must join with her husband in a suit to recover it,^ as in debt on bond or specialty made to the wife before cover- ture,^ or debt for rent upon a lease for years due before cover- ture," or upon a lease for life,* or upon a lease at will.® So in assumpsit upon a promise to the wife before coverture, or for her labor dum sola, they must join.' § 991. In the case of Clapp v. Stoughton,' it was laid down by the court as the true rule, that in all cases where the cause by law survives to the wife, the husband and wife must join, and he cannot sue alone. So an action to recover a legacy given to the separate use of the wife, must be in the name of the husband and wife ; but it may be entered for the use of the wife, and the husband can neither release nor discontinue the suit.' A., in consideration that B., a feme covert, could cure a certain wound, assumed and promised to B. to pay her £10. If B. does ' In the case of Brown's Adm'rs v. Langford's Adm'rs, 3 Bibb, 499 ; Bank's Adm'rs v. Marksberry, 3 Litt. 282 ; and Miller v. Miller, 1 J. J. Marshall, 169. 2 Banks v. Marksberry, 3 Litt. 281 ; Toller on Exs. and Morse v. Earl, 13 Wendell, 273. ' Cro. Eliz. 537; Arch. Plead. 38. • Cro. Eliz. 700. ' Arch. Plead. 55. « Arch. Plead. 38. » 10 Pick. 463, 470. » Co. Litt. 55, b. 9 Perry v. Boileau, 10 Serg. & Rawle, 208. [534] § 992] LEGAL EIGHTS AND EBMEDIKS. [OHAP. XXXIX. cure the wound accordingly, it would seem agreeably to the rule already adverted to, that B. must' join with her husband in assumpsit for the money; for as the promise arose upon matter of skill and performance of the wife, she was the meritorious cause of the action, and such an action will survive to the wife. But in the case of Brashford v. Buckenham and Wife,' the suit having been brought in the name of the husband and wife, it was objected that the husband alone should have had it ; the court declared the action to have been well brought, and that it sur- vived to the wife. Whatever may be the mode of bringing the action, the rule is well settled that without an express promise to the wife, the joint action does not lie ; for the fruit and labor of the wife belong to the husband, for which he alone shall bring the action.^ It seems to be definitely settled, that if the wife is joined, her interest must appear on the face of the declaration, or it will be bad.' So in Serres v. Dodd,'' it was held that a declaration in re- plevin by J. S. and his wife, without showing any cause for joining the wife, was bad on demurrer. The court observed that nothing appeared on the face of the record, from wiience they could infer that the wife had any interest in the goods taken, and it was not sufficient for the plaintiff to put imaginary cases of interest, but the title ought to be averred. And in Bidwood V. Way and Wife,' it was suggested as a reason for the special , averment of the interest of the wife, that as choses in action, when recovered by husband and wife, survive to either, therefore it is necessary to state a fact so considerable, as it puts the succes- sion to this property in a different channel. The insertion of the wife, the court said, created an interest in her, and entitled her to the damages by survivorship. § 992. In Abbott and Wife v. Blofield,* where in assumpsit by husband and wife for money received from the hands of the wife, the court held that though they might join for money due to the wife dum sola, or for rent during the coverture, this ought ' Cro. James, 77, adjudged and affirmed, 205. * 5 Bos. & Pull. 405. " Buckley v. Colbier, 1 Salk. 114. ^ 2 Wm. Black, sup. 3 Stceley v. Barhib and Wife, 2 Caines, 221. « Cro. Jao. 644. [535] CHAP. SXXIX.J LEGAL EIGHTS AND EEMEDIES. [§ 993 to be shown, and could not be intended after verdict, and they arrested the verdict. But in Burn v. Mattaire,' where husband and wife joined in replevin, and the defendant avowed for rent arrear, after verdict it was objected that the husband and wife could not have a joint property in personal chattels after the marriage, and consequently the replevin ought to have been brought by the husband alone. Lord Hardwicke, Ch. J., deli- vering the judgment of the court, said "that although the ground of the objection was generally true, yet, notwithstanding, as a man and woman might have a joint property before marriage, or the wife might have the goods in question as executrix, and the taking might in both cases be before marriage, the court were of opinion that they might declare jointly for such taking. That if the law would admit of such joint action, the fact was admitted by the pleading. The defendant had not disputed with the plaintiff to whom the property belonged at the time of the taking, and, therefore, if there could be a case in which the husband might join with the wife in an action for a personal chattel, the court thought that, after verdict, this ought to be intended to be the case. It was not, however, denied that the declaration would have been bad on demurrer. In North Carolina it has been held that in detinue to recover slaves of the wife detained, before and at the time of the mar- riage, the wife must be joined. § 993. In Crozier v. Gano,'' it was objected to the form of the action, that husband and wife could not join in detinue. But the court said : "The law is clearly otherwise. In many cases it is not only proper but absolutely necessary they should join, to enable the husband to obtain possession of the wife's chattels, the possession of which she had lost before coverture." The case of Crozier v. Bryant' was an action for detinue for sundry slaves, originally brought by Isaac Gano and wife, in right of the latter against the appellant. Issues were joined upon pleas of non-detinue and the statute of limitations, and a verdict and judgment obtained for the plaintiffs, which, upon going to the Court of Appeals, was reversed, and the cause was ' Bull. N. P. 53. 2 1 Bibb, 259. » 4 Bibb, 174. [536 ] § 994] LEGAL EIGHTS AND REMEDIES. [CHAP. XXXIX. remanded with directions that the plaintiffs should reply de novo, the court being of opinion that the plea of the statute of limitations was insufficient. The action having afterwards abated by the death of Mrs. Gano, was revived in the name of her husband as her administrator ; and having again abated by his death, it was revived in the name of the present appellee as his administrator de bonis non, and on the various issues joined the cause was tried. During the progress of the trial it ap- peared that Mrs. Gano claimed the slaves in virtue of a gift from her father, John Bainbridge, and that the defendant held under a purchase from a third person, but failed to trace the title up to Bainbridge, the original vendor. A motion was then made to instruct the jury, as in case of a non-suit, because the gift to Mrs. Gano was not sufficiently proved, or, if proved, was void in law as to the defendant, he being a purchaser ; but the motion was overruled, and a judgment rendered for the plaintiff. § 994. Several objections were taken in the Court of Appeals to the proceedings in the Circuit Court. That which it is ne- cessary now to notice was, that the right of action survived to the husband, and could not be revived in the name of the wife's administrator, or her administrator de bonis non. "The authorities," the court said, "afford some color to this objection ; for it is said that if a person detain the goods of a woman, which came into his hands before her marriage, the husband alone must bring the action ; because the law transfers the property to him, and she has no interest. "This doctrine, however, must be understood with some re- strictions. Where the possession is not adverse to the right of the wife before marriage, as in the case of a bailment by loan or otherwise, it will no doubt correctly apply; for according to the rule that the general property in a chattel draws with it the possession, the possession of the bailee would be construed to be the possession of the wife ; and the property of a chattel possessed by her at the time of her marriage vests immediately in the husband, so that the right of action in such a case for a detention after marriage would belong exclusively to him. But where the possession is adverse to the right of the wife before marriage, as where it is held by a person not claiming merely a special property in the thing, but the general and [537] CHAP. XXXIX.] LEGAL EIGHTS AND EBMEDIES. [§ 995 absolute property, w'holly incompatible with the right of the wife, his possession could not be construed to be her possession ; and consequently the property of the thing would not in such a case vest in the husband on marriage ; for as a chattel thus circumstanced would not in fact be in possession of the wife, and could not according to any rule be construed to be so, it must be a chose in action ; and it is a settled principle that a chose in action will not vest in the husband, and that it will survive to the wife or her representatives, unless he reduces it to possession during coverture. To recover possession in such a case, she ought, therefore, to join in the action, if brought in her life; but if it is brought after her death, it should be in the name of her representatives, for regularly the right of action follows the right of property. The husband, indeed, on her death, would be entitled to the thing, but not in the character of husband, but as her administrator; in that character was the suit in this case revived. " As, therefore, it was apparent in this case that the slaves were held adversely to the right of the wife before marriage, the objection cannot prevail. It was in fact virtually overruled by the opinion of this court, in which it was decided that the wife was correctly joined with the husband in the action." § 995. In an action of trover before marriage, and a conversion after, the husband and wife to join ; for this action as a trespass disaifirms the property ; but the husband alone ought to bring replevin, detinue, &c., for these actions admit and affirm a pro- perty in the wife at the time of the marriage, which, by conse- quence, must have vested in the husband.^ The case of Milrier and Others v. Milner and Others,^ was trespass by husband and wife, for seizing and taking the property of the wife dum sola, and converting the same to the use of the defendants, to which there was a plea in bar that one of the plaintiffs at the time of bringing the suit was a feme covert. To this plea there was a demurrer. The court held that the action was well brought in the name of the husband and wife ; and that if such an action were to be brought by the wife alone, the defendant must plead the coverture in abatement, not in bar. ' Fightmaster v. Beasly, 1 J. J. M. 506. » 3 T. R. 631. [538] § 996] LEGAL RIGHTS AND EEMEDIES. [CHAP. XXXIX. It may be stated as a general rule, that ia actions ex delicto for injuries to the wife or her property before marriage, the husband and wife must join.' The next preceding cases are illustrations of the rule ; and in an action for damages for stop- ping a way to the wife's land before marriage, the husband and wife must join.* If an action is brought in respect of a personal wrong to a wife, as for battery of the wife, the husband and wife must join, and the declaration ought to conclude, " to their damage," and not "to the damage of the husband;" for the damages will survive to the wife, if the husband die before they are received.' So where an action is brought for words, in themselves actionable, spoken of the wife, and no special damages are laid, then such a conclusion is right, for the action survives.* Although the wife ought not to be joined in an action with the husband for the battery of the husband,^ yet where husband and wife join in an action for a personal wrong to the wife, the husband may declare also for an injury arising solely to himself, by way of aggravation of damages ; as where, in tres- pass by husband and wife, for false imprisonment of wife, jaer quod negotia domestica of the husband, remaseraut infecta ad grave damnum ipsorum. On motion, in arrest of judgment, the decla- ration was held good ; for although the husband and wife could not have declared jointly for the special damage resulting to the husband alone, if such damage had been the gist of the action," yet in this case, it having been laid for aggravation of damages only, the action was well brought ; for trespass will lie for a matter jointly with other matters, for which singly an action could not have been maintained ; as trespass will lie for entering the plaintiff's house and beating his servant, without adding "per quod servitium amisit," for there it is considered as a continuation of the first trespass.' So where in an action of ' Weagle v. Hensley, 5 J. J. M. 378. ' Bather and Wife v. Brereman, Cro. Car. 419. » 1 Selwyn's N. P. 287. • For slander of both see 11 Gushing, 10, and 13 Gray, 304. 5 1 Selwyn's N. P. 287. ' Barnes v. Hurd, 11 Mass. Eep. 59. ' Russell v. Come, Ld. Raym. 1031. [539] CHAP. SXXIX.] LEGAL BIGHTS AND EEMEDIES. [§ 997 assault and battery by husband and wife, it was stated in the declaration that the defendant assaulted the wife, and driving a coach over her, bruised her, "and hy reason thereof the husband laid out divers sums of money," &o. After verdict for plaintiff, with entire damages, it was holden, on motion in arrest of judg- ment, that the gist of the action was the beating of the wife, and the expenses incurred by the husband were only in aggra- vation of damages.^ But in Lewis v. Babcock,° in assault and battery committed on the wife, where the husband's damages for the loss of comfort, &c., of his wife, and expenses incurred by her illness, were joined in aggravation, it was held that although the objection was in arrest of judgment, it would have been good on demurrer. In all cases where a wife has a cause of action as executrix, the action must be brought by husband and wife, and not by the husband alone.' And where a debt due to the wife's tesr tator was paid to A. for the wife, without an express direction of the husband, the court held that the husband alone could not sue A. as for money received to his use." § 997. Where the husband must sue alone. — As the personal property of the wife becomes vested in the husband instantly upon marriage, and as personal property acquired by her vests also in the husband, he alone can bring an action for it during coverture. She cannot even join in the action. Thus in Draper v. Falkes,' it was held that a husband and wife can- not join in an action of trover, and declared that they were both possessed of certain goods, and that the defendant converted them to their damage. And in Nelthorp and Wife v. Anderson," such a declaration was declared to be bad after verdict. For crim. con. the husband must sue alone ; and the plaintiff is entitled to damages in this action, though the wife die before the action, and it appears that the husband was not aware of her infidelity until she was on her death-bed. Damages may be given for the shook to the husband's feelings, and the loss of her society from the time of the discovery until her death, ' Todd V. Redford, 11 Mod. 264. * Com. Dig. Baron & Feme, 5. ' 18 Johns. Rep. 443. 6 i Zelverton, 166. » Aroh. Plead. 41. » 1 Salk. 114. [540] § 997] LEGAL EIGHTS AND EBMEDIES, [CHAP. X5S1X. although the husband continued to treat her kindly.' Where the wife lived apart from her husband and carried on a trade, an action was brought by the husband and wife for words spoken of the wife, calculated to injure her business, the court held that the words were actionable only with respect to the business ; that damage being in law the husband's only, the wife should not have been joined.^ So where the injury to a wife is added in the declaration in a trespass, &c., merely in aggravation of damages, the action must be brought by the husband alone.' Where the immediate consideration for the promise from the husband alone, although the wife be the meritorious cause of action, the wife should join in the suit ; thus upon a promise to the husband, in consideration of forbearance to sue, to pay a debt due to the wife duin sola, the action must be by the hus- band alone.'' Where the wife cannot maintain an action for the same cause-, if she survive her husband, the action must be brought by the husband alone; as in the case of an action of indebitatus as- sumpsit, for the labor, &c., of the wife during coverture;' for in contemplation of law the wife is considered as the servant of the husband, and he is entitled to her earnings; and such earnings shall not survive to the wife, but go to the personal representative of the husband. So in an action for words not actionable in themselves as spoken of the wife, but by which the husband sustains injury, he alone must sue. So in an action for injuries committed during coverture to personal chattels,^ which by law are vested in the husband ; and in trespass for cutting down and carrying away corn, although it grew upon the wife's land ; for it grows by the industry of man, and con- sequently the property thereof is in the husband alone." In all cases where the wife shall not have the thing when it is reco- vered, either solely to herself, or jointly with her husband, but the husband only shall have it, then the husband shall sue ' Wilton V. Webster, 7 Carr & Payne, 198 ; 32 Eng. Com. L. R. 491. 2 Saville and Wife v. Sweeney, 4 Barne & Adolph. 514 ; Eng. Com. L. E. 108. " Dix V. Brooks, 1 Strange, 61. * Arch. Plead. 41 ; Com. Dig. Baron & Feme, N. W. H. Cro. Jao. 110. 5 Buckley v. Collier, 1 Salk. 114. 6 Arundel v. Short, Cro. Eliz. 133. ' 1 Selwyn's N. P. 289. [541] CHAP. XXSIX.J LEGAL EIGHTS AND EEMEDIES. [§ 997 alone.' An action was brought by A., and B., his wife,^ for the use and occupation of a messuage and lands, and for money had and received to the use of the husband and wife, stating the promises to husband and wife. After judgment by default, writ of inquiry executed, and final judgment in B. E., a writ of error was brought in the Exchequer Chamber, assigning for error that judgment was given for the husband and wife to recover their damages, whereas it appeared on the record that B. was the wife of A., and could not sustain any damage by reason of anything contained in the declaration ; the court was of opinion that the judgment was erroneous, because a contract could not be made with a married woman; that a promise, either expressed or implied, did not give any interest to her ; the whole resulted to the husband, and the action ought to have been brought in his name. The counsel for the defendants in error having urged, that if an impossible assumpsit was stated in the declaration, it might guard her surplusage as much as if she had been a stranger ; the court said the insertion of the wife could not be surplusage, for it created an interest in her, and entitled her to damages by survivorship. Where a debtor to a wife as executrix promises to pay the husband in conside- ration of his giving time for payment, the husband ought to sue alone, because the wife is not a party to the agreement be- tween her husband and the defendant f but in this case the life of the wife must be averred.* If, for some new consideration, such as forbearance or the like, the debtor of the wife dum sola, gives a first security, or makes a new promise to both husband and wife, upon such security or promise the husband and wife may join, or the hus- band may sue alone ;" but if they be made to the husband alone, he must sue alone.° When, however, the new promise or security does not merge, but is merely collateral to the first contract, the husband and wife may jointly sue on the first contract, notwithstanding the later one.' ' 1 Selwyn's N. P. 289. ' Bidgood V. Way and Wife, on error, 2 William Black R. 1236, cited in Morris v. Norfolk, 1 Taunt. 214. ' Yard v. Gland, Ld. Eaym. 368 ; Salk. 117 ; Carth. 462, S. C. * Lea V. Minne, Yelv. 84 ; Cro. Jao. 110. « 1 Salk. 117 ; Ld. Raym. 368 ; 4 T. R. 616 ; 1 Maule & Sabin, 180. « Ibid. ; 1 Saund. 210 ; Yebr. 89. ' Ibid. [542] § 998] LEGAL BIGHTS AND REMEDIES. [CHAP. XXXIX. Upon bills of exchange or promissory notes to the wife, either before or during coverture, the husband may sue alone, or he may joia his wife with him as plaintiff; as a promissory note or a bill of exchange is not strictly a personal chattel in posses- sion, but a chose in action of a peculiar nature ; and if he do not reduce it into possession by suing in his own name, it survives to her. If she is joined with him in the action, and the hus- band sues after judgment, the wife would be entitled, as the judgment would survive to her.' The husband^ s indorsement will pass a an or note given to the wife? In no cause of action where the husband ahne can sue, must the wife be joined. Thus, where a declaration by husband and wife, was for a cure by the wife during coverture, and also for medicines supplied, it was held on general demurrer bad, as the medicines were the property of the husband, and she was not solely the meritorious cause of action.^ The husband, in declaring alone on a note made to his wife during coverture, may allege that it was payable to himself.* § 998. Where the husband and wife may join, or the husband may sue alone, at his election. — In personal actions for the re- covery of damages only (except in actions for personal wrongs done to the wife), where the action will survive to the wife, the husband and wife may join,^ or the husband may sue alone, for he alone may release such action. In an action for breach of promise made to husband and wife after coverture to pay a sum of money to the wife, husband and wife may join.^ So where a promise is made to the wife only.' Where a lease is granted to a husband and wife for a term of years, and the lessor ousts them, husband and wife may join in action of cove- nant.' Covenant will lie by husband and wife for non-payment ' Gatora v Madely, 6 Mees & Wilaby, 427. 2 Mason v. Morgan, 2 Adolph. & Ellis, 230. ' Brown on Actions, VJ5 ; Holmes and Wife v. Wills, cited in 2 Wils. 424 ; see also 3 Maule and S. 396, TThere Lord EUenborough alludes to the same case. * Brown on Actions, who cites 4 Moore, 71. " Per Cur. 2 Mod. 270. ^ Hillaird v. Hombridge, Aleyn. 36. ' Pratt V. Taylor, Cro. Eliz. 61 ; Eol. Abr. 32, pi. 12. . * Bro. Baron & Feme, pi. 23. [543] CHAP. XXSIX.] LEGAL EIGHTS AND EEMEDIES. [§ of rent due by virtue of a lease of lands, inherited by the wife, and granted by both herself and her husband.' The husband alone may bring an action on a covenant made to himself and his wife ; for although the covenant be made by her, he may refuse quoad her.^ So if a bond be given to husband and wife, administratrix,^ husband may sue alone, declaring it as a bond to himself. In debt or bond made to husband and wife,* both may join, or the husband may disagree to the wife's right to the bond,' and bring the action in his own name ; but until such disagreement, the right to the bond is in both husband and wife, and shall sur- vive ; hence, if the husband dies, the wife shall have the bond, and not the personal representative of the husband.^ If a husband have received a special damage from injury done to his wife, the action may be brought by the husband alone, as for battery of the wife, per quod servitum amisit,'' or for carrying away the wife, &;c.,' or for a malicious prosecution of the wife per quod, they were both scandalized and the husband put to expense,' or for words spoken of the wife, by which the husband sustained special damage.'" In Spear's Wife v. Alexander," it was held that husband and wife cannot join for a chattel, if the husband had actual or con- structive possession after marriage ; for by the marriage and such possession, the whole vests exclusively in the husband. So in the case of Walker v. McBane, &c.,^^ which was an action of detinue for a slave ; where A. gives the slave to his niece B., and agreed to keep the slave at his own expense during his life. Before A.'s death, B. intermarried with C; after A.'s death, C brought an action in his own name. The ' Aleberry v. Walby, Str. 230. ^ Beaver v. Lane, 2 Mod. 217. 3 Aukerstein v. Clark, 4 T. R. 616. " 32 E. 3, 5 ; 43 E. 3 ; 10 Bro. Baron & Feme, pi. 14, 55. 6 Coppin V. , 2 P. Williams, 497. ^ Bro. Baron and Feme, pi. 60 ; Executors of Schoonmaker v. EUnendorf, 10 Johns. 49. ' Guy V. Livesy, Cro. Jao. 501, 502 ; Russell and Wife v. Come, 1 Salk. 119 ; Arch. PI. 41. * Hyde v. Scissor, Cro. Jac. 538. ^ Smith V. Hiokson, 2 Strange, 997 ; Cas. Temp. Hardw. 64. "> 1 Salk. 206. " 1 Hawks, 67. « 1 Murpli. 41. [ 544 ] § 999] LEGAL EIGHTS AND EEMEDIES. [CHAP. XXXIX. possession of the slave having vested in B. by the gift, and A. having held her during his life for the use of B., it was decided that C. could maintain the action in his own name. Where husband and wife have recovered judgment on a bond made to the wife dum sola, they may both join in an action on such judgment, or the husband may sue alone; for that which was before a chose in action, transit in rem judicaiem, and is of another nature from what it was before the coverture.^ In replevin, if the goods of a feme sole be taken and she mar- ries, the husband alone may sue.^ But it seems that in replevin of goods which the wife has as executrix, the husband and wife shall join.' § 999. The rights of the wife hy survivorship. — A joint obliga- tion to both husband and wife for a debt due to him alone, is a gift to the wife which survives to her on his death, unless there be a deficiency of assets for creditors.'' The right of survivorship belongs to the wife in all her chases in action, not reduced by her husband to possession during coverture, whether the same accrued to her before or after marriage.' A legacy accruing to the wife during coverture is in Massa- chusetts subject to be attached by the trustee process of that State, at the suit of the husband's creditors. But such attach- ment will not survive the wife's right of survivorship, in the event of the death of the husband before judgment.' A note and mortgage made to the husband and wife during coverture, survive to the wife.'' A married woman loaned the interest accruing after her marriage upon a note held by her before marriage, and the borrower gave his promissory note therefor, which was made payable to her, according to the wishes of her husband, that she might be the exclusive owner thereof; and the husband ' 1 Selw. N. P. 291. ' Bull. N. P. 53. " Baker and Wife v. Brereman, Cro. Car. 418. * Gibson v. Todd, 1 Rawle, 455. 5 Hayward v. Hayward, 20 Pick. 517. 6 Strong V. Smith, 1 Metcalf, 476. See Ames v. Chew, 5 Metcalf, 320 ; 8 Pickering, 215 ; 6 Metcalf, 537 ; Gardner v. Hooper, 3 Gray, 398. ' Draper v. Jackson, 16 Mass. 480. 35 [545], CHAP. XXXIX.] LEGAL EIGHTS AKD REMEDIES. [§ 999 frequently declared that the money, as well as the interest thereon, was her separate property, and that he did not intend to receive any part of it for his own use ; but he also stated to a third person that no agreement had been made with the wife in relation to the money, either before or after marriage. After the death of the husband the borrower paid to the wife the amount due on his note, she having retained it in her own custody. Held, that she was entitled to the amount thus paid, as against the executor of her husband.^ So where a wife before marriage owned bank stock, and her husband after the marriage received the dividends until the bank charter expired ; at which time the stockholders were entitled to take half the amount of their shares in shares of a new bank, and the balance in money. The husband subscribed the authorized amount in the name of his wife, and refused to receive the balance in money, saying it was not his, but his wife's, and such balance was then placed to his credit. It was held that he had not reduced the shares to possession, and his wife after his decease could recover of his executor the balance and the dividends received by him ; also a sum paid to him on account of the reduction of the capital stock, with interest thereon.^ In Bohn v. Tucker,^ it appeared that Thomas Tucker con- veyed a number of slaves to his daughter, with a provision in the deed that the slaves should remain with him till his death. The father sold the slaves, and died. The daughter, who had married before the death of her father, was left a widow before her husband had done anything to recover possession of the slaves. It was held by Dorsey, J., who delivered the opinion of the court, that the right to the slaves survived to the wife ; that the deed of gift to the daughter was valid, the possession of the father after the conveyance being in accordance with the deed. Marringe operates as an absolute gift to the husband of all personal estate of which the wife is in possession, whether he survive or not ; but to such as rests in action, the husband is only entitled on the condition that he reduces it to possession during coverture. Hence, a warranty of title annexed to a Phelps V. Phelps, 20 Pick. 556. 3 7 Harr. & Johns. 757. Stanwood v. Stanwood, 17 Mass. 67. [546] § 1000] LEGAL SIGHTS AND REMEDIES. [CHAP. XXXIX. slave sold to the wife while sole, the slave being recovered from the husband after the death of the wife, does not survive to the husband, because its essential quality as a chose in action remains unaltered.' I purpose to show in this connection to what extent a feme covert can act and be sued independent of her husband. By the custom of London, "a feme sole merchant is where the /erne trades by herself in one trade with which her husband does not meddle, and buys and sells in that trade ; there the feme shall be sued, and the husband named only for conformity ; and if judgment be given against them, execution shall be only against the feme? % 1000. In South Carolina it has been held in the case of Newhiggan v. Pillans,^ that where a /erne covert keeps a shop and carries on trade herself, without her husband's interference, for a number of years, it will constitute her a feme sole dealer, and she shall be liable for goods consigned to her on her own con- tract. It was an action of assumpsit for goods sold and delivered to the wife, a sole dealer. It appeared on the trial that Mrs. Pillans had for many years acted as a sole dealer, with the knowledge and approbation of her husband, who was a school- master; that she had been in the uniform practice of keeping a shop and selling goods, keeping books and rendering accounts in her own name only; in short, of carrying on all sorts of merchandise in her line as feme sole, her husband never being named in any of her mercantile transactions. So extensive was her business, that for several years she had imported goods in. her own name, paid duties at the custom-house, and received ship- ments and consignments, in every respect as if she had been a feme sole; and had kept a sign at her door in her own name. The action was for the value of a shipment of goods, sent to her from Glasgow, in which her husband's' name was only mentioned for conformity. The declaration contained three counts : one against Pillans and wife ; another against her as sole trader ; and a third against Mrs. Pillans for money had and ' Casey v. Fonville, 2 N. C. Kepository, 404. 2 Langham v. BeWett, Cro. Car. 68 ; 1 Stephen's N. P. 733. '2 Bay, 162. [547 CHAP. XSXIX.] LEGAL EIGHTS AND EEMEDIES, [§ 1001 received to the plaintiff's use. To which there was a plea of coverture put in, to wit, that she was not liable for any con- tracts in her own right during coverture. § 1001. It was contended for the defendant, that this action could not be against a feme covert by the general law of the land, as she was incapable of making any contract during coverture ; therefore, it was impossible for the plaintiff to re- cover against her under the first count of the declaration. It was admitted that under the act of Assembly a husband might, by a special deed under his hand and seal, by and with the consent of his wife, constitute her a soh trader ; and that her contracts would bind her, and she might sue and be sued as'such, naming her husband for conformity ; but Mr. Pillans never had executed such a deed to his wife ; therefore, it was argued that the plaintiff could not recover under the second count in the declaration ; and lastly, it was urged the plaintiff could not recover under the third count, because the law would presume that whatever money she received was to the use of her husband, and not to the use of a third person, with whom she could make no con- tract. In his reply the plaintiff gave up the first count in his decla- ration, but relied on the others. He contended that a feme soh dealer might be constituted in two ways : one by deed under the hand and seal of the husband, pursuant to the directions of the legislative act provided in such cases ; the other by custom and usage. That the act of the legislature did not alter or take away the common law with regard to this custom ; it only came in aid of the common law, and enabled the husband to do at once, by his own act, that which would require years to accomplish by the common law, as a usage or custom. That commerce is highly favored by law, and whatever tends to promote its interests was well deserving the attention and protection of courts of justice. In the present case, all the parties concerned came under the strict rules of commercial law. Mrs. Pillans and her husband were of different trades; he was the master of a school with which she never interfered, and she was a shop- keeper, engaged in buying and selling goods, with which he never intermeddled. She had carried on the trade in her own [548] § 1003] LEGAL RIGHTS AND REMEDIES. [OHAP. XXXIX. name so long, as not only to have obtained great credit in this country, where she was at home, but had also extended it into a foreign country, and merchants there made no difficulty in shipping and consigning goods to her ; thus she fully answered the description of a f&me sole dealer, according to usage and custom. § 1002. The presiding judge. Bay, told the jury "that he thought the custom a reasonable one, and it should be supported in that city as well as in London. It was allowed there in favor of commerce, and he saw no good reason why it should not be extended to this country for the same purpose. Our laws cer- tainly legalized this kind of trade carried on by feme sole dealers; and an act of legislature had been passed especially to enable them to carry on this commerce, and to protect them in their own rights. This act did not appear to him to have altered the common law with respect to the usage of particular cities where it had been established ; it only enabled the husband to do at once in the case, what it would require years to establish in the other case. If, however, the jury should have any doubts as to the reasonableness and propriety of the custom which had been urged in support of the second count in the declaration, there could be none under the third and last count for money had and received ; for the goods had been sold by Mrs. Pillans in the course of trade, and the money for them been paid into her hands ; therefore, she could not in justice and good con- science retain it from the plaintiff." The jury, without retiring, found a verdict for the plaintiff for the amount of his demand. § 1003. So in the case of McGrath v. Administrators of Eo- bertson,^ of which the following are the facts : John Eobertson and his wife, Ann, lived together many years, in Charleston. He carried on business, and acquired real and personal property, for which he took the titles and bills of sale in his own name. His wife also carried on a separate business in her own name, and bought and sold property, for which she took the titles and bills of sale in her own name. There was no deed from the Dessauss. 445. [549] CHAP. XSSIX.] LEGAL EIGHTS AND EEMEDIES. [§ 1004 husband formally constituting his wife a sole dealer, nor any- written agreement that the proceeds of her own industry should be her separate property. But there was ample proof that she acted with her husband's privity, and she always claimed the property acquired by her as her own. Some of the witnesses proved that he acquiesced in this for the sake of peace, as she was a woman of violent temper. But the majority of the wit- nesses stated that for many years Mrs. Eobertson had acted and been considered as a sole trader ; that she was active and indus- trious, and made great profits on her separate dealings, with which she bought property in her own name. That this was done with the full knowledge and acquiescence of her husband, and that he sometimes borrowed money from her, and repaid it as to any other trader. One of her debtors had offered to pay the money due her to her husband ; but he refused to re- ceive it on the ground that she acted for herself, and the debtor must settle with her, as she held the note ; and this was accord- ingly done. Her husband would sometimes caution her against bidding too much on property at auctions ; but she repelled his interference, and said the money was her own, and she would do as she pleased with it. To which he replied, that if it was, there was no reason why she should ruin herself. § 1004. It was conclusively proved that she had acted for many years as a feme sole, or sole trader ; that she had a clerk to keep her accounts, and took titles in her own name, with the knowledge of her husband ; but no writing could be produced to show an agreement to that effect. The case was decided by Chancellors Matthews and Eutledge, who held that Mrs. Ro- bertson was a sole trader by permission of her husband, and that she was entitled to all her earnings as a separate estate. " There is no law here," said the court, " defining what a sole dealer is, or how far a feme covert may become a sole trader ; nor is there any such in England. The custom of the city of London authorizes it ; and a clause in our attachment act re- cognizes the right in this country.' But there is no particular mode pointed out. If the husband permits his wife to act as ' The act referred to was passed in 1774, Pub. Laws, S. C. 190 ; 2 Brev. Dig. 348. [550] § 1005] LEGAL EIGHTS AND REMEDIES. [OHAP. XXIIX. such, he relinquishes the control he had at common law. The case before the court, made out by the proofs, is the strongest possible one, next to producing a deed from the husband, au- thorizing the wife to act as sole trader, and establishes her power so to act." This case was followed by that of McDowell and Wife v. Wood and Wife,' in which it was held by the Constitutional Court of South Carolina, in a very elaborate opinion, that a feme covert, acting as a sole trader, may make a bond ; but the power is confined to such bonds only as relate to, or are in some manner connected with, her business as sole trader. It is proper to state that the preceding cases were not go- verned by the statute of South Carolina. " It is to be observed," said Mr. Justice Nott, in delivering the opinion of the case in McDowell and Wife v. Wood and Wife, "that the character of sole trader is not constituted by any act of the legislature. It is only recognized as existing by custom." And Bay, J., in Newhiggan v. Pillans, was of opinion that the statute had made no alteration in the common law with respect to usage or cus- tom, and he left it to the jury to determine the reasonableness and propriety of the custom. § 1005. The character of a feme sole trader is also recognized by statute in Pennsylvania. It has not only been held in that State, within the meaning of their act of 1718, that a feme sole trader may make herself liable for debts contracted in the course of trade, but for those incurred by the maintenance of herself and children, whether such debts be of the nature of specialties or simple contracts f but it has also been determined that a feme covert, whose husband, a mariner, has been absent more than two years, leaving her without support, except from her own labor, is a, feme sole trader within the meaning of the same act, and as such may receive a distributive portion of her ances- tor's estate.^ The Supreme Court of the United States, in Rhea v. Eheaner,* held the law to settle that when the wife is left by the husband,' when she has traded as a feme sole and received credit as such, ' 2 Nott and MoCord, 242. 2 Burke v. Winkle, 2 Serg. & Eawle, 289. " 1 Peters, 105. ' Valentine v. Ford, 2 Browne, 193. [551 J CHAP. X5XIX.J LEGAL EIGHTS AND EEMEDIES. [§ 1005 she should be liable for her debts ; and the law is the same, the court said, whether the husband is banished for his crimes, or has voluntarily abandoned his wife. In Vermont, it has been held that no temporary absence of the husband, or separate maintenance or living apart of the wife, will enable the latter to sue, or subject her to be sued alone.' But where the husband is an alien, and has never resided within the government, the wife may sue, or be sued as a feme sole? In Grregory v. Paul,' where the wife left England in conse- quence of ill treatment from her husband, and came to Massa- chusetts ; both husband and wife were aliens, and he continued to reside in England ; it was held that she might sue as a feme sole. The opinion of the court contains an ample examination of the authorities on the subject. "The facts and circum- stances," it was said, " which should be considered as proof of having abjured the realm, have been liberally regarded." Thus, where the husband resided abroad, leaving his wife to trade and gain credit as a, feme sole, it has been considered as sufficient to entitle her to obtain credit, and to render her liable to be sued." This case was very similar to the one before the court. It did not appear that the husband was ever in England, or intended to go thither. He could not complain if his wife were imprisoned for debt, for he had renounced her society. Upon the same reasoning, the case of Walford v. The Duchess de Pienne' was decided. The duke was a foreigner, who left England in 1793, with the intention of returning soon. The suit was in 1797, and the court held that his absence, thus con- tinued, should be considered as a desertion of his wife, and as sufficient to enable her to contract on her own account. "And the law is the same," said the court, " when applied to her situa- tion as plaintiff. In the late case of Carroll v. Blencour,° where the term for which the husband was transported had expired, the wife was permitted to sue as if unmarried, the defendant not proving that her husband had returned. ' Robinson v. Reynolds, 1 Aikin, 174. ^ Ibid. 6 2 Esp. R. 554. ' 15 Mass. 31. 6 4 Esp. R. 27. * De Gaillon ». L. Aigle, 1 Bos. & Pull. 357. [ 552 ] § 1006] LEGAL EIGHTS AND REMEDIES. [CHAP. XIXIX. § 1006. " Wretched, indeed, would be the position of these unfortunate women, whose husbands have deserted them, if the disabilities of coverture should be applied to them under such circumstances. In such case they could obtain no credit on the account of the husband, for no process could reach him ; and they could not recover for a trespass upon either person or property, or even for the labor of their hands. They would be left wretched dependants on charity, or driven to the commis- sion of crime for a support. Nor does the late decision cited by the counsel for the defendant in this action' militate against the principles stated. The wife in that case was not permitted to sue as a /erne soh, although her husband had gone beyond sea without making any provision for her support. But it was admitted by the demurrer that the husband was born within the realm, was then a subject, had not heen banished, and had not abjured. His absence under such circumstances might be con- sidered as temporary ; and of course as not changing the rights of the husband or wife. " The case in question comes within the spirit of the rule at common law, which is founded in reason and necessity in cases of exile or abjuration. The plaintiff has been domiciled here for many years as a feme sole; her husband is an alien, who never was, and is never expected to be in this country; he abandoned his wife, and for many years made no provision for her support, before she came to the United States. He has not, it is true, abjured his country; but he has compelled his wife to abjure it. This should not make the case either better or worse for her. If the husband had been a native citizen, who deserted his wife, and became a subject of a foreign state, the law would be clear for her upon the adjudged cases." The court concluded by saying that they "were satisfied the plaintiff could acquire property, and be permitted to sue and be sued as a feme soh." The case of Abbott v. Bailey,^ was an action of trover, to which the defendant pleaded the coverture of the plaintiff. She replied in substance that her husband drove her from his house by his cruelty; she then left New Hampshire, and took up her ' Boggett V. Frier, 11 East, 303. 2 6 Pick. 89. See, also, 4 Metoalf, 478 ; 3 Gray, 411. [553] CHAP. XXXIX.] LEGAL BIGHTS AND EKMEDIES. [§ 1007 residence in Massachusetts, where she had maintained herself for more than twenty years as a single woman. Parker, Ch. J., said : " The plaintiff was driven from her husband and home more than twenty years ago ; she has during this time acted as a feme sole, and been treated as such by those with whom she had dealings. Her husband, so far from supporting her, has considered the connection as extinct, and has married and lives with another woman. It is agreed that the separation was caused by the cruelty and ill usage of the husband. He has obliged the plaintiff to live apart from him, and get her own living by teaching, and she has sustained herself as a feme sole in this commonwealth. According to the decision in Gregory V. Paul, she is entitled to maintain this action." In Starrett v. Wynn,' the court decided that if a husband deserts his wife, and ceases to perform his marital duties, the acquisitions of property made by the wife during such desertion are her separate estate, which she may dispose of by will or otherwise. § 1007. The question as to what shall constitute such a change of possession by the husband as will destroy the wife's right of survivorship is one of no little interest. "What will amount," says Kent, in his Commentaries on American Law, "to a change of property in action belonging to the wife, so as to prevent it from going back to the wife in case she survives her husband, was considerably discussed in the case of Schuyler V. Hoyle.^ It was there held that the husband may assign, for a valuable consideration, his wife's closes in action to a creditor, free from the wife's contingent right of survivorship.^ The doctrine that the husband may assign the wife's choses in action for a valuable consideration, and thereby bar her of her right of survivorship in the debt, but subject to the wife's equity, has been frequently declared, and is understood to be the rule best sustained by authority. Such an appropriation of the property is the exercise of an act of ownership for a valuable purpose, and an actual appropriation of the chattel, which the husband had a right to make." ' 17 Serg. & Rawle, 130. ' 5 Jolins. Ch. Eep. 196. ^ 2 Kent's Com. 136. * Carteret v. Paschal, 3 P. Wms. 197, &c. [554] § 1008] LEGAL EIGHTS AND REMEDIES. [OHAP. XXXIX. If the husband appoints an attorney to receive the money, and he receives it ; or if he mortgages the wife's choses in action, or assigns them without reservation, /or a valuable consideration; if he recovers her debt by a suit in his own name, or if he releases the debt; or if he changes it, so as to take a new security in his own name ; in all these cases, upon his death, the right of survivorship in the wife to the property ceases.' If the husband obtains a judgment on decree for money, to which he was entitled in right of his wife, and the suit was in his own name alone, the property vests in him by the recovery, and is so charged as to take away the right of survivorship in the wife.^ If the suit was in their joint names, and he dies before he had reduced the property to possession, the wife, as survivor, would take the benefit of recovery. In a word, the property must come under the actual control of the husband, quasi hus- band, or the wife will take as survivor, instead of the personal representative of the husband.' § 1008. Having noticed the rights of the wife, it remains to add a few observations on those of the husband. In the case of Griswold v. Pennington," Ch. J. Swift thus states the general principles on which the rights of the husband by survivorship depend : — " The husband by marriage acquires a right to the use of the real estate of the wife during her life ; and if they have a child born alive, then, if he survives, during his life, as tenant by the curtesy. He acquires an absolute right to her chattels real, and may dispose of them. If he does not dispose of them, and survives his wife, they survive to him ; but if she outlives her husband, they survive to her. He acquires an absolute pro- perty in her chattels personal in possession ; but as to her choses in action, he may maintain a suit jointly with her to recover them ; and if he reduces them to possession during coverture, they become his ; otherwise they survive to the wife, if she outlives him, or to her administrator, if she does not. As to the property of the wife accruing during coverture, the same 1 2 Kent's Comm. 137. » Kent's Comm. 138. 2 Ibid. * 2 Conn. R. 565. [555] CHAP. XSXIX.] LEGAL EIGHTS AND EEMEDIES. [§ 1010 rule is applicable, except in regard to choses in action. These vest absolutely in tbe husband, on the principle that the hus- band and wife are but one in law, and her existence, in legal consideration, is merged in his. He may in such cases bring a suit in his own name, without joining his wife. This clearly proves that the choses in action vest in him absolutely ; for if the right was in the wife, she must necessarily join in the suit. Where a bond or note is given to the wife, the husband can maintain an action in his own name.^ The consequence then is that if the husband die before the wife, such choses in action shall go to his executor or administrator, and they do not sur- vive to the wife ; for where the property has been absolutely vested, there can be no survivorship. § 1009. "It is true in certain cases, where claims originate during coverture, the husband may sue in his own name, or may join with the wife, as for rents issuing out of her real estate, or where she is the meritorious cause of action; and then, if the husband die while the suit is pending, or after judg- ment and before it is satisfied, the interest in the causes of action will survive to her, and not to the executor of the hus- band, though if he had sued alone, she would have had no interest.^ But this is so far from proving that if no suit had been brought the choses in action would have survived to the wife, it proves directly the contrary. Eor in this case the join- ing of the wife in the suit was the ground of the survivorship. It is agreeing to and recognizing her interest by the husband, and may be considered in the nature of a grant to her ; and for this reason the suit or judgment may survive to her. But where no act is done by the husband, where no suit is brought or judgment rendered in favor of both, his separate absolute interest continues, and can never survive to the wife." § 1010. Of actions against husband and wife. — The husband is by law answerable for all actions for which his wife stood liable at the time of the coverture, and also for all her torts and trespasses during coverture ; in which cases the action must be joint against them both.' ' Barlow v. Bishop, 1 East, 432 ; Alleyn, 36. ' 1 Chitt. Plead. 19-20. ^ Bao. Abr. Baron & Feme, T. Co. Litt. 133, &o. [656] § 1011] LEGAL EIGHTS AND EEMEDIES. [CHAP. XXXIX. In an action against husband and wife for a debt due from the wife before marriage, if tiie declaration allege a promise by the wife during the coverture to pay it, this is error, for she is incapable of performing such promise.^ For a debt due from the wife before coverture, the husband and wife must be sued jointly.^ So in the case of Gage v. Eeed,^ the Supreme Court of New York observed : "The only founda- tion for the liability of the defendant below, was his marriage with S. G., and it is well settled that the husband alone cannot be sued for a debt contracted by his wife before marriage ; for in the event of his death, the cause of action survives against her. The case of Mitchinson v. Hewson,^ is directly in point. The suit there was against the husband alone, for work done for his wife before marriage. The plea was the general issue, and a verdict was found for the plaintiff; on a motion, in arrest of judgment, the court said that according to the best authorities on the subject, the action against the husband alone could not be supported ; observing that the case of Drew v. Thorn,' was directly in point, and they arrested the judgment. Whatever is a good cause for arresting a judgment, is a good cause also for reversing it." It was formerly held that if goods came to a feme covert by trover, the action may be brought against hus- band and wife ; but the conversion must be laid only in the hands of the husband, because the wife cannot convert goods to her own use ; and the action is brought against both, because both are concerned in the trespass of taking them.° But in the case of Keyworth v. Hill,' it was determined that a declaration against husband and wife, charging that they converted to their own use, is good after verdict ; for the verdict does not proceed upon the acquisition of the property by the defendants, but the deprivation of property in the plaintiff, and the conversion may have been by destruction. § 1011. A declaration stating that the husband was indebted to the plaintiff for money to the wife, at her request, is bad ; 1 Morris v. Norfolk, 1 Taunt. 212, &c. ^ AUeyn, 72. 2 Com. Dig. Baron & Feme, Y. « Co. Litt. 551, &c. 3 15 Johns. 403. ' 3 Bums & Aid. 684. ' 7 T. E. 348. [557] CHAP. XXXIX.] LEGAL EIGHTS AND REMEDIES. [§ 1012 since, without a request from the husband, there can be no debt due from him.^ If a note be given by B. to a married woman, knowing her to be so, in order to serve her, and with a view that she should indorse it over to C, to whom she had become indebted in the course of a trade carried on in her own name, and with the consent of her husband, the property in the note vests in her husband on the delivery of it to her, and no interest will pass to 0. by her indorsement.^ A bill of exchange payable to the wife is a personal chattel, and not a mere chose in action, and it vests absolutely in the husband, without any indorsement by the wife ; and he may sue on it in his own name alone.^ Although husband and wife cannot maintain trover, and suppose the possession in them both, because the law trans- fers the whole interest to the husband; yet trover may be maintained against husband and wife,^ for the gist of the action is the conversion, which is a tort, with which the /erne may be charged as well as with a trespass.' If the conversion were the joint act of both husband and wife, the husband may be sued alone, or both may be sued, and the declaration should charge the conversion to the use of the husband and not to both.° § 1012. If slander be spoken by both husband and wife there must be separate actions, one against the husband only for the slander spoken by him, and the other against the husband and wife for slander spoken by the wife, and the court will not order the actions to be consolidated. So for words spoken of husband and wife there must be two actions, one by the hus- band for the words spoken of him, and another by both for the words spoken of the wife.' ' Bao. Abr. Baron & Feme, L. 7 Taunt. 432. " Barlow v. Bishop, 1 East, 432. ^ McNeilage v. Ealloway, 1 Baron & Aid. 218, &o. * Draper v. Fulkes, Zebr. 165 ; 1 Lebr. N. P. 296. 5 Ibid. 6 Estill V. Fort, 2 Dana, 238. ' Errington v. Gardner, 1 Selw. N. P. MS. 297, &o. ; Gazyski v. Colbum, 11 Ousting, 10 ; Sbeffll v. Vandeusen, 13 Gray, 394. [558] § 1012] LEGAL EIGHTS AN-D EEMEDIES. [OHAP. XXSIX. In Ebersall v. Krug' it was held that slander of husband and wife could not be joined in the same action. It was once a question of some interest whether an action would lie against husband and wife for the slander of the wife, dum sola; and it arose for decision in 1812, in the case of Hank & Wife V. Harraan & Wife.' The action was for slanderous words spoken of the wife of the plaintiff (while she was sole) by the wife of the defendant, Harman. It is a leading case, and, therefore, of suflBcient importance to require a distinct reference to the reasoning of the court who decided the question. Tilgh- man, Oh. J., said it was a question which -did not admit of a doubt. " The wife," he observed, " cannot be sued without her husband ; and if the action does not lie against both it follows that a woman, by her own act, may defeat the plaintiff's action ; a principle not to be endured, unless a positive adjudication on the point could be produced in support of it. But the defendant in error relies on the general position to be found in some of the books of authority, that a man is liable to answer for his wife's contracts made before marriage. To be sure he is; but it must not be supposed that he is liable for her torts also. The expressions do not necessarily bear that import, and in candid construction they ought not to be so expounded. It would be attributing to respectable authors an unaccountable mistake, for there is not wanting express authority to the contrary. If a feme sole is sued for a trespass, and marries, the action shall be pursued against her ; and, if she is found guilty, judgment and execution shall be had against her alone, without naming her husband.^ But if the suit is brought after the marriage for a trespass committed by the feme while sole, it shall be against both husband and wife; and, what is somewhat singular, the writ charges the trespass with having been committed by both, be- cause there is no other form of writ in the register. It was so decided.'' So if a feme sole dissmoress marries, the writ against the husband and wife shall be quod dissiesiverunt, and not quod uxor dum sola dissiesivit. In these cases there was no question ' 3 Binney, 555. ' 5 Binney, 43. ' Doyley v. White, Cro. Jao. 823 ; Bull, N. P. 22. « 22 Ass. pi. 87 ; Jenk. Cent. 23, pi. 43 ; 4 Vin. Ab. 185, C. 1, pi. 14. [559] CHAP. XXSIX.] LEGAL EIGHTS AND REMEDIES. [§ 1013 about the action lying against the husband and wife ; the only doubt was, whether the form of the writ was right." § 1013. The opinion of Chief Justice Breckenridge also coin- cided with that just given. He says: "It would certainly be a circumstance favorable to the entering into the marriage state, and 'a consummation most devoutly to be wished,' on the part of females if it afforded them a sanctuary from all bygones of defamation or other wrongs to society ; so that, as during mar- riage, no action could be brought against them separately, so neither against them and the husband joined. It might facili- tate the leading to the altar in a case where a young lady had indulged herself more freely than was strictly justifiable in a conversation, or had transgressed the bounds of a molliter manus imposuit, and committed an assault and battery. An immunity from her contracts and debts the lover cannot expect, accomplie en loyal matrimonie ; but the being subject also to actions for her torts, to use the legal term, must augment the inconve- nience. Nevertheless, with all the inclination of my mind, it may be difficult to make out this privihgium matrimoniale which is claimed in the present instance. Even the privihgium chri- cale, which is analogous to it, does not extend so far. In the case of one who becomes a monk, an action, though not against himself, may be brought against the head of the monastery for misdemeanor by the professed, previously committed, as well as for contracts made. And who can charge the law with a want of gallantry, if nothing more is denied to the ladies than to a religion ? Though we cannot allow these to be spiritual persons, nor, I take it, would they wish to be so considered, yet, as in the case of the consecrated, they are privileged from arrest, and though nominally joined with the husband in the suit brought, yet the husband can alone be taken on the capias, or be subject of the service of the summons ; and against his per- son or his goods can the execution alone go. That this is the case of those religious, who, by entering into holy church, lose to some extent a civil existence, is expressly laid down in the year book, 20 H. 6-22. Mettons que feme seule soit oblige a may, et prend haron, le baron sera charge del debt durant la vie safemme ; mes si elle devie, le baron est decharge. Et en mesme la maniere, un hommefait a moy transgressionem, et entre en religionem Vabbe sera [560] § 1014] LEGAL EIGHTS AND REMEEIES. [CHAP. XXXIX. charg6 vers moy durant la vie son commoin; et s\l devie devani quejeo, recovrie, VdbM sera dechargL Viner cites this, and refers to the year book, which I have consulted, and it bears hina out. But it can only be by inference and analogy that he can deduce the law to be the same in the case of a trespass by the feme, as of a debt ; arguendo, that it be the same in the case of the pro- fessed, it is also the same in the case of the feme. And the reason being the same, why should it not be? They are put as examples of the same doctrine. But in another place it is laid down in so many words : Si une femme fait dbligaiion ou fait a moy trespass, et frend haron jeo averois mon action vers eux. Car person prendre un haron n'est raison que jeo suis onste de mon action. 4 Viner, 94. "The weight of authority is derived from this, that the law is expressly laid down to be that in case of contracts of the feme sole the baron is chargeable, and the limit is not drawn excluding torts; but, on the contrary, the boundary is passed, and trover, detinue, waste, and tortuous entry by the feme sole, are grounds of recovery against the baron. § 1014. "It is impossible, therefore, for me to say that on espousal a damsel is not taken with all her slanders on her head, and all her trespasses, and that the baron is not answerable. Nor can I say, that by losing a substantive existence by her own act it would be reasonable that she should escape from all responsibility. Nor do I know that it can well lie in the mouth of the baron to complain, since he cannot but be considered as a party to the act of withdrawing on her part, and the taking shelter under the marriage state, more especially in the action on the case of breach of promise of marriage, because the success- ful lover cannot but be considered as a party to the fcedifragium; for it cannot but be presumed that but for him there would have been no filling. It is, however, to the credit of the sex, that so little occasion has there been to pursue for words or breaches of the peace against the/eme covert and the haron joined, that it should be made a question whether an action would lie at all; and that even at this late day the law is to be deduced rather from prin- ciple than precedent, unless we suppose that the chivalry of gallant men has led them to compromise and satisfy on behalf of tlieir half, if I may play upon a word, so that few or no actions 36 [561] CHAP. XSXIS.] LEGAL EIGHTS AND EEMEDIES. [§ 1016 have been brought, or at least are upon record, of the more atrocious wrongs, personal or otherwise. § 1015. "It is a consolation that his responsibility is confined to prosecutions merely civil, and that he is not criminally liable for her misdemeanors, or wounds inflicted, or thefts committed before coverture. Even in the case of a misdemeanor he is subject to no part of the imprisonment, if such be the sentence; nor would the law allow of his vicarious substitution. But if a fine is to be paid it amounts to a levy upon him, since he must discharge it to keep her out of jail. In all affairs of human life the sweet and the sour must be taken together, qui sentit coin- modum sentire debet et onus. According to the marriage cere- mony, she must be taken for better or worse; though I will not say that in drawing up the form there was a reference to this principle of law; but the words are broad enough to compre- hend it, and it would look like a subtlety to explain away and exempt it. But the notion of marrying a lady free from incum- brances may be set down among vulgar errors. The law being settled on this head, if there was any doubt of it before, it may lead to greater caution, and put the inexperienced upon inquiry as to the conduct of the inamorato before marriage, and may lead the female to a single attention to her morals, as wrongs and breaches of the peace may prevent her matrimony. It is true the husband may with some propriety call her his dear iinfe if some of these drawbacks should come upon him, and with a safe conscience he may use the term as an equivoque, even if his affections should not be the strongest after marriage. By the common law also it was allowable to give due chastisement, which I take it may extend to what was done before marriage as well as after, and take personal satisfaction; though on this head I will not undertake to be as clear as I am on the principal point, that he is answerable for her torts before marriage as well as after, which is all that is necessary to decide the case.'" § 1016. If the wife leave her husband without suflScient cause, and live apart from him, he is not bound by her contracts, even for necessaries ; but if she returns again and he receives her, or ' This and several of the principles preceding are also referred to in More- head's Practice, p. 361. [562] § 1016] LEGAL RIGHTS AND REMEDIES. [OHAP. XXXIS. if she consents to return and he consents to receive her, and her return is prevented by sickness, he is thenceforth again bound by her contracts for necessaries.' Though husband and wife live separate, and provision be made for her maintenance, yet if during the separation the wife buys necessaries, and the parties become reconciled, and the necessaries come to the use of the wife in the family, the hus- band is bound.' A wife who is wrongfully turned out of doors by her hus- band, carries with her an implied credit and authority to charge her husband for necessaries.' The obligation upon the husband to pay the debts owing by the wife upon the marriage is not absolute, but contingent; the death of either the husband or wife destroys the common law liability.'* The Kentucky statute of 1846, exempting the property of the husband from liability for the debts of the wife created hefore marriage, is not a violation of the constitution; it does not impair any contract." The liability of the husband for the debts of the wife created hefore marriage continues only during the coverture; on her death his liability ceases, and he is not liable, either at law or in chancery, though he may have received estate by the mar- riage." To render the husband liable after marriage for a demand against the wife for board of the wife hefore coverture, the wife must have been legally bound.' The husband of an administratrix is responsible during co- verture for the debts and legal liabilities of the wife incurred dum sola, whether incurred individually or fiduoially, provided they be enforced during the coverture; otherwise, as to liabilities incurred during the coverture.' The husband during coverture is liable for the debts of the ' Henderson v. Stringer, 2 Dana, 292. ' Remiok v. Fioklin, 3 B. Monroe, 166. ' Billing V. Pilolier and Hauser, 7 B. Monroe, 459. * Fultz and Wife v. Fox, 9 B. Monroe, 500. 5 Ibid. ; Beaumont v. Miller, 1 J. P. Metcalf, 100. ^ Morrow v. Whiteside's Ex'or, 10 B. Monroe, 412. ' Caldwell v. Blake, 4 J. J. Marshall, 247. ' Philips, &o., V. Richardson, &c., 4 J. J. Marshall, 214. [563] CHAP. XXXIX.] LEGAL EIGHTS AND REMEDIES. [§ 1017 wife created before coverture, not after her death, except as her administrator. But he is responsible after her death for her fiduciary acts during the coverture.^ If an administratrix marry, her will is merged in that of her husband, and she cannot act without his concurrence, and his estate is chargeable in equity for any waste committed of the estate to be administered, and her sureties are liable for all acts done during coverture as well as previously.' One who marries an administratrix becomes bound to per- form all the duties, and does not escape from his liability for neglect by her death.' Otherwise as to the liabilities she had incurred before the coverture, for then he is liable only in case of a recovery against him before her deaths § 1017. The husband of an administratrix is liable, even after her death, for whatever of intestate's goods remained in her hands at the marriage, and on all causes of action which accrued against them during the coverture.' Such of the estate of the testator as remains in kind at the death of the wife, administratrix, goes to the administrator de bonis nan ; what does not remain in specie the husband must account for.° In such cases, the husband surviving the wife, administratrix, shall distribute all the estate which came to his hands during the coverture, except what remains in kind.' Husband is not accountable after his wife's death for her devastavit as administratrix, committed before the marriage. But for estate which came to hand during the coverture he remains liable.' A conversion by the wife is a conversion to the husband's use, and he can be made liable.' ' Philips, &o., V. Eiohardson, &c., 4 J. J. Marshall, 215. 2 Carrol, &c., v. Connet, 2 J. J. Marshall, 199. " Chaplin v. Simmons' Heirs, 7 Mon. 339. ' Ibid. 3,40. « Ibid. 339. * Graves, &o., v. Downey, &o., 3 Monroe, 356. ' Ibid. 355. 8 Ibid. 354. " Estill and Wife v. Fort, 2 Dana, 238. [564] § 1017J LEGAL RIGHTS AND REMEDIES, [OHAP. XXXIX. In trespass for a battery on a wife the jury may assess damages for the injury to the feelings of the parties and stand- ing of the family.' Debts against a /ewie, not recovered of her after marriage, on the death of her husband survive against her, and his ad- ministrator is not liable.^ A wife may be the agent of her husband, or protect and manage his property in his absence.' The release of errors by a feme covert is invalid, though her husband may be a party to the bill.'' Trimble v. SpiUer, 7 Monroe, 395. Chapline «. Moore, 7 Monroe, 179. Moore v. Simpson, 5 Littell, 51. Breckenridge v. Coleman, 7 B. Mon. 333. [565] CHAP. XL.j RIGHTS OF H0SBAND. [§ 1019 CHAPTER XL. PARTIES PLAINTIFFS TO SUE AND RIGHTS OF HUSBAND ACQUIRED BY THE MARRIAGE. § 1019. A MAN cannot sue his wife nor a woman her husband in any form of action whatever at law, and if one have a cause of action against the other before marriage, their subsequent intermarriage is a release of it.' Marriage is an absolute gift to the husband of all the wife's chattels in possession, and of her choses in action if he reduce them into possession. So the husband of the wife who is entitled to an interest in slaves held by her mother as dower slaves, and who dies during the lifetime of her mother, is entitled, on the death of the mother, to the slaves for the interest vested in him during coverture f but where the wife survives they do not vest in the husband unless he reduce them to possession during his life, but survive to the wife.^ If the wife's choses in action are not reduced into possession they remain the property of the wife, and, on the dissolution of the marriage, survive to her. In Miller v. Miller,'' it was held that the choses in action be- longing to the wife before marriage do not vest in the husband till he reduces them to possession, or otherwise appropriates them. If he die without making any disposition of them, they survive to the wife in her own right without administering on his estate, or holding them as assets thereof.' But if the husband survive he is entitled to them under the ' Arolibold, Pleading, 38. ' Saunders' Ex'ora v. Saunders, 12 B. Monroe, 42. ' Ring V. Baldridge, 7 B. Monroe, 536. * 1 J. J. Marshall, 169. 6 2 Kent's Commentaries, 134, 135. [566] § 1020] EIGHTS OF HUSBAND. [CHAP, XL. statute of distribution generally as the administrator of his wife, of which he has the preference.^ If any other person administer, he will hold the assets as trus- tee for the husband.' § 1020. For, says Mr. Butler,' " At the common law, when the husband survived the wife, no person had a right to ad- minister ; it was in the breast of the ordinary to grant admin- istration to whom he pleased, till the statute of the 21st Henry VIII., which is to the next of kin ; and if there were persons of equal kin, whichever took out administration first was entitled to the surplus. The statute of distribution was made to prevent this injustice, and to oblige the administrator to distribute. By the 22d and 23d Charles II., chapter x., administrators are liable to make distribution, but as the act makes no express mention of the husband's administering to his wife, and, as no person can be in equal degree to the wife with the husband, he was not held to be within the act. To obviate all doubts upon this question, by the 29th Charles II., chap, iii., sec. 25, it is declared that the husband may demand administration of his deceased wife's personal estate, and irecover and enjoy the same as he might have done before the statute of the 22d and 23d of that reign. Upon the construction of these statutes it has been held that the husband may administer to his deceased wife, and that he is entitled for his own benefit to all her chattels real, things in action, trusts, and every other species of personal pro- |)erty, whether actually vested in her and reduced to possession, or contingent, or recoverable only by action or suit. It was, however, made a question after the statute of 29th Charles II., chap. iii. sec. 25, whether if the husband, having survived his wife, afterwards died during the suspense of the contingency upon which any part of his wife's property depended, or with- out having reduced into possession such of her property as lay in action or suit, his representative, or his wife's next of kin, were entitled to the benefit of it. But by a series of cases it is now settled that the representative of the husband is entitled as much to this species of his wife's property as to any other, and ' Hart & Evans v. Soward, 12 B. Mon. 392. = Whittaker v. Whittaker, 6 Johnson, 112. 8 Note to Coke's Littleton, 351. [567] CHAP. SL.] EIGHTS OP HUSBAND. [§ 1022 that the right of administration follows the right of the estate, and ought, in case of the husband's death after that of the wife, to be granted to the next of kin of the husband;' and if admin- istration de bonis non of the wife is obtained by any third person, he is a trustee for the representative of the husband.^ § 1021. " With respect to such part of the wife's personalty as is not in her possession, as money owing or bequeathed to her, or accrued to her in case of intestacy or contingent interests, these are a qualified gift by the law to the husband on condition that he reduce them to possession during coverture; for if he happen to die in the lifetime of his wife without reducing such property into possession, she, and not his representatives, will be entitled to it. His disposing of it to another is the same as reducing it to his own possession. Thus, if a baron be possessed of a term, or the trust of a term in the right of his wife, he may dispose of it, except in the case of a trust term, where the trust is created by herself previously to the marriage ; and it should seem that the husband's power of disposition over his wife's contingent personal estate can extend only to such part as he may possibly become possessed of during the marriage, and not to any part of her estate which depends upon a contingency that cannot possibly happen during his life; as if a lease be made to hus- band and wife during their lives, with remainder to the sur- vivor, and the husband disposes of the term and dies, the dis- position will not bar the wife, for during the coverture she had a mere possibility only." § 1022. In Rice v. Thompson,^ where the wife was entitled to three thousand five hundred dollars in the hands of a trustee, and the husband neglected to reduce it to possession during coverture, he died and the right survived to the wife. She again married ; died in a few weeks, leaving her second hus- band surviving her, without any children of the second mar- riage. It was held that the last husband, as administrator of the wife, was entitled to this fund to the exclusion of her child- ren by the first marriage. . ' See Mr. Hargrave's Law Tracts, 475. 2 Squib V. Wyn, 1 P. Williams, 376 ; Cart v. Eees, cited ib. 381. ' 14 B. Monroe, 381. [568] § 1024] EIGHTS OF HUSBAND. [CHAP. XL. § 1023. In Hart & Evans v. Soward/ where the wife by ante- nuptial contract reserved her property, real and personal, with the issues and profits to her separate use, as well as the right to dispose of by sale or will, she died without disposing of it. Seld, that the husband had the right of administration upon her estate. His right being contested to the administration, the court said : "It is contended that by the terms and legal effect of this writ- ing the husband was deprived of the right and interest which the law would otherwise have given him in the estate of his wife, as well after as before her death, and that as the husband's right to administer on the estate of his wife in preference to all others is founded upon his interest in her estate when that in- terest is absolutely renounced by his own act as a party to an antenuptial contract, the basis of his right ceases, and the ad- ministration must be granted to some one or more of those entitled to distribution. On the other hand, it is contended that whatever may be the ground of preference for the husband, that preference being declared by the statute expressly and unequivocally, his right to administer cannot be denied, even if upon the death of his wife he should, in consequence of the antenuptial contract, have no interest in her estate ; and it is also contended that the wife never having disposed of her estate during her life, the husband's interest after her death,' and his right to administer if dependent on interest, are not affected by the antenuptial contract." § 1024. In Williams on Executors (page 245) the doctrine is laid down, that if the wife executes a general power by dispos- ing of her whole estate, the husband is barred of his right of administration; that the execution of a partial power extending to a part of her estate will bar him only 'pro tanto, and he is entitled to administer the residue; and that if she executes her power of disposition by will, but makes no executor, the hus- band is entitled to administer with the will annexed. From which it is clearly to be inferred that it is not the existence of the power but its execution that bars the husband, and that he is barred only so far as the power is executed. In Toller on " 12 B. Monroe, 392. [ 569 "J CHAP. XL.] EIGHTS OF HUSBAND. [§ 1025 Executors (pages 84, 85) the same principles are found as in "Williams, and one of the cases referred to was upon an ante- nuptial agreement under which the wife had exercised the power of disposition by will. But administration was granted to the husband as to things not thus disposed of. In the case of Bray v. Dudgeon, in which the Supreme Court of Virginia decided that the nephew of the intestate's wife was entitled to administration in preference to the husband, the ante- nuptial settlement had not only given to the wife the power of disposition by will, but provided that if not thus disposed of it should be conveyed to her proper legal heirs; so that it was not left for distribution by law in case of her intestacy, but was disposed of by the original settlement, and the surviving hus- band had no possible interest in it. In this case there was no disposition of the wife's estate to take effect after her death, either in the antenuptial agreement or under the power therein reserved. And, therefore, the Yirginia decision, though, pro- bably made under a statute similar to ours, can have no direct application to this case where the wife's estate was, upon her death, left wholly to the disposition of the law. In the case of Payne v. Payne,' where estate, real and personal, had been de- vised for the separate and exclusive use of the wife, it was decided by this court that if the death of the wife terminated the trust the surviving husband was entitled to the personal estate as administrator. § 1025. Where a husband has conveyed a separate estate in slaves to trustees for the benefit of his wife, on the death of the wife he is not entitled to the slaves as survivor of the wife, but he takes them as her administrator against all the world; sub- ject, however, to any debts against the wife, and as assets in his hands to that extent.'' So property conveyed to an unmarried woman held to be, and continues to remain separate property after marriage, and even after a second marriage, but a surviving husband's right in the property, though suspended during the coverture, will attach at her death unless he be excluded by the terms of the • 11 B. Monroe, 138. ' Eiohardson's Adm'r v. Spencer, 18 B. Mon. 463. [570] § 1026] EIGHTS OF HUSBAND. [OHAP. XL, conveyance, or the property disposed of by tbe wife under a power to do so.' And a separate estate in the wife, however absolute, does not exclude the rights of her surviving husband. But if by the con- veyance an interest is given to the wife which may endure beyond her death, the rights of the surviving husband attach to such interest just as if there had been no separate estate, unless it has been entirely disposed of from him by the .wife, or by the conveyance which created the separate estate; -the cause for excluding the husband terminating with her death.^ § 1026. The case of Stuart v. Stuart,^ and other cases of like import, prove that it is not essential to the existence of the hus- band's right upon the death of his wife to take her property as administrator, that he should have had any present right or interest in it as husband during the coverture, and that, although during the life of the wife, his marital rights as to the particular property are repelled and suspended by the settlement; yet when it is left at her death not disposed of, either by the settle- ment or under her power, "the surviving husband must, of course, take it, and with as good a right and title in law as the heir takes the undevised estate of the ancestor." In the case just cited a widow had in contemplation of marriage conveyed her estate, real and personal, " in trust for her future use, free from the control of her intended husband," or any other hus- band, reserving a power of appointment. The husband, there- fore, had no vested right or interest in it during the coverture, but Chancellor Kent said: "The court cannot take away the right of the husband to the personal estate of his wife when it is not taken away by the settlement or by the power of appoint- ment under it ;" that in such case the right of the husband as survivor is a fixed and stable right over which the court has ' Richardisoii's Adm'r v. Spencer, 18 B. Mon. 463. 2 Ibid. See the cases of Payne v. Payne, 11 B. Mon. 138 ; Allen w. Everett, 12 B. Mon. 371 ; Hart & Evans v. Seward, 12 B. Monroe, 392 ; Cox v. Coleman, 13 B. Mon. 451 ; Brown v. Alden, 13 B. Monroe, 146 ; Hart w. Soward, 14 B. Monroe, 302 ; Rice v. Thompson, 14 B. Monroe, 380 ; and Richardson v. Spenoen 18 B. Mon. 463 ; they all recognize the same elementary principle sustained by the cases of Stuart v. Stuart, 7 Johnson's Chy. Rep. 229 ; Proudly d. Fielder, 2 M. & K. 57. » 7 Johns. Chy. Rep. 229. [571j CHAP. XL.] EIGHTS OF HUSBAND. [§ 1028 no control, and of which he cannot be divested ; that the settle- ment cannot be extended by construction beyond the just and fair import of its provisions, and clearly the court cannot create a settlement or a disposition of property in violation of the jus mariti when none had been made by the party. § 1027. In the case of Proudley v. Fielder,* it was stipulated in marriage articles that money in the funds, the property of the intended wife, should be for her sole and separate use, to all intents and purposes as if she were sole and unmarried ; the marriage took place, but no settlement was made ; the wife died without issue and without having made any appointment in the lifetime of her husband, who took out administration on her estate; on his death the next of kin of the wife claimed the fund from his executor, and the Master of the EoUs said the expression, "for her sole and separate use as if she were sole and unmarried," had no reference to the dissolution of the pro- perty after her death ; that she was to retain the same absolute enjoyment and power of disposition over the money as if she was sole and unmarried, but there was not one word to vest the property after her death in her next of kin, or to defeat the right which her surviving husband is entitled to acquire as her administrator. § 1028. In the previous case of Guttridge v. Stilwell,° there was a fund in court standing to the separate account of a mar- ried woman whose husband survived her and died before administering on her estate. The Master of the EoUs refused the application of the son to have the fund, because, although he had taken administration of his mother's estate, he had not administered also on the estate of his father; and, although the Lord Chancellor Brougham reversed this refusal on the ground that the court could not look beyond the admitted legal per- sonal representative, it is said that in Loy v. Ducketts,^ Lord Cottenham approved of the opinion of the Master of the EoUs. But it is to be observed, that while the opinion of the Master of the Eolls evidently implies that the husband's administration was the party entitled, the opinion of Lord Brougham implies 2 Mylne & Keene, 57. « 1 lb. 133. ' 1 C. & R. 312. [572] § 1030] EIGHTS OF HUSBAND. [OHAP. Xh. no negation of the husband's right, and is entirely consistent with the doctrine which prevailed in the English courts, that the administrator of the wife will be regarded as a trustee for the representatives of the husband if he die before he has ad- ministered.' § 1029. To these cases others might be adduced from the English Chancery recognizing the right of the husband- to suc- ceed to the wife's separate estate upon her death when there is no other disposition of it either by her or by the settlement, as in Fettiplace v. Gorges,^ in which there was no such disposition, and Bailey v. "Wright,^ in which there was a limitation in the settlement in default of appointment by the wife " in trust for her next of kin or personal representatives," without which limitation, it was said by Chancellor Kent, in Stuart v. Stuart,* it would never have been made a question whether the pro- perty did not devolve upon the husband by due course of law." § 1030. Where the lands of a feme covert are sold under a pri- vate act of Assembly, declaring that the purchase money shall pass and be held as it would have been if the husband and wife had joined in the sale, the notes for the purchase money belong exclusively to the husband, and are subject to his debts." Where a chose in action has accrued to the* wife before mar- riage she must join with her husband in a suit for its recovery; but where it accrues during coverture he may sue alone, or join his wife, at his own election.' Where the wife's interest in land is in the nature of a mort- gage intended to secure the payment of money and nothing more, the husband may release it.° If any interest in a chattel vests in a female before or during coverture, although a particular estate may exist in it undeter- mined, so that no possession is acquired by the husband during ' See Stuart v. Stnart, 7 Johns. Chy. Eep. 244, and authorities there cited. 2 1 Vesey, 48. » 18 Vesey, Jr., 49. « 7 Johns. Chy. Rep. 246. ' Brown, &c., v. Alden, &o., 14 B. Monroe, 146-148. 6 Sheriff of Fayette v. Buckner, 1 Littell, 129. ' Bank's Adm'r v. Marksberry, 3 Littell, 141. 8 Marshall & Wife v. Lewis, &o., 4 Littell, 141. [578] CHAP. XL.] EIGHTS OP HUSBAND. [§ 1031 the life of the wife, the right will belong to the husband in case he survives and pass to his administrators.' He is entitled to her contingencies as much, as to any other property.^ A husband may sell the reversionary interest of his wife to slaves before a dower estate in them has terminated.^ The wife*s interest in a chattel real may be assigned by the husband.'' A vested remainder in slaves accruing to a woman during coverture vests in her husband as much as a right in possession would.' But it seems if the husband should die before the termination of the particular estate on which the remainder depended it would survive to the wife." The act of 1798 has placed slaves, as respects the interests of husbands, on the same footing with chattels at common law.' Husband is entitled absolutely to his wife's distributive share in her deceased father's chattels, and, being executor, his exe- cutors shall deduct them from his account." § 1031. An obligation to a man and his wife survives to her on his death, and on her second marriage the action shall be in the name of the second husband and herself by her latter name.' Submission by the husband to arbitration of the controversy concerning the land held by the husband in right of his wife cannot affect more than his estate, the wife's will not be affected.'" Husband may sell the usufructuary estate in the wife's lands, but not the fee without her concurrence." Husband may sue alone to recover goods owned by the wife before marriage.'^ ' Swing's Heirs, &c., v. Handley's Executors, 4 Littell, 348. 2 lb. 349. » Meriwether v. Booker, &o., 5 Littell, 256. * lb. 256. ' Pinkard v. Smith, Littell's Selected Cases, 331. ^ lb. 331. 7 Ibid. 8 South's Heirs v. Hoy's Heirs, 3 Monroe, 93. ' Hoy, &c., (/. Rogers, &e., 4 Monroe, 226. " Milner a. Turner's Heirs, 4 Monroe, 247. " Bailey & Wife v. Duncan's Rep's, 4 Monroe, 260. " Trimble v. Stipe, 5 Monroe, 246. [574] § 1031] RIGHTS OF HUSBAND. [CHAP. XL. The choses in action of the wife will not be subjected by the Chancellor without having a suitable provision made for her support.' Estate in slaves assigned the wife out of her first husband's estate pass to the executor, or of second husband as personalty.^ Interest of the wife in slaves and personalty of her father who dies before her marriage, not reduced to possession during the coverture, passes on her death to her administrator, or on his death survives to her.^ Where the above interest of the wife accrues to her during coverture the right to recover the possession survives to the husband or wife.'* See the effect of the husband's deed of gift to the step-daughter of slaves acquired by the marriage, reserving an estate to the grantor and his wife for their lives in a case between widow and husband's devisees.' ' Smith, &o., V. Peyton, 6 Moaroe, 269 ; Tevis' Rep's v. Eioliardson's Heirs, &c., 7 Monroe, 660 ; see also Wife's Equity. ' Hawkins' Adm'r v. Craig et ux., 6 Monroe, 257, 258. '■' Irwin V. Divine, 7 Monroe, 246, 247. • It. 247. 5 Glenn v. Glenn's Ex'rs, 7 Monroe, 287, 288. [575] CHAP. SLI.] WITNESS. [§ 1033 CHAPTER XLI. WITNESS. § 1032. The wife is in general debarred from being a witness for or against her husband, both at law and in equity.' There are, however, exceptions to every rule, where, from the nature of the inquiry, the nature of the information to be expected is peculiarly within the knowledge of the wife, and where to exclude such evidence would occasion insecurity to that relation in society which it is the object of such rules to protect. And in equity the wife's affidavits may in some cases be used against the husband.^ The best reason for not allowing a husband or wife to be witnesses against each other is, that if a wife were a witness for her husband, she would be under a strong temptation to commit perjury; and if against her husband, it would be contrary to the policy of marriage, and might create much domestic dissen- sion and unhappiness. So vice versa of the husband.' § 1033. The husband and wife cannot be witnesses for each other, and on a prosecution against several for a conspiracy, the evidence of the wife of one of the defendants is inadmissible." And it is the same in an action for assault, where the cases of the co-defendants cannot be separated.' They cannot be witnesses against each other ; therefore the husband cannot be a witness against the wife, nor the wife against the husband, to prove the first marriage on an indict- ment for a second marriage ;° but in such case the second wife ' 1 Phillips on Evidence, oUap. 5, sec. 3. ' See also 1 Blaokstone, 444. ' Bui. N. P. 286 ; 4 T. E. 679 ; 2 T. R. 263. ' 2 Stra. 1094 ; 5 Esp. Eep. 107. 5 Stra. 1095. « 2 Hawk. P. C. 0. 46, s. 68 ; Sir J. Raym., J., 4 St. Tr. F. 754 ; and see Co. Litt. 6 b.; 2 T. R. 263 ; 2 Lord Raym. 752 ; 1 "Wharton's Cr. Law, § 767. [576] § 1033] WITNESS. [chap. xli. or husband may be a witness, the second marriage being void.' So in a civil action, a first wife was refused to be admitted to prove her marriage.* In an action brought by a woman as 2, feme sole, the plaintiff's husband cannot be called to prove the marriage.^ Although the husband and wife be not a party to the suit, yet if either be interested in its result, the other cannot be a witness /or the one so interested." But the interest, to disqualify the party, must be certain and vested.^ The wife of a bankrupt cannot be examined as to her hus- band's bankruptcy.^ The husband is an incompetent witness for the wife, where her separate estate is concerned.' On the other hand, where tbe interest of the husband, con- sisting in a civil liability, would not have protected him from examination, it seems that the wife must also answer, although the effect may be to subject the husband to an action, for where the husband might be examined so may the wife.^ And in an action between other parties, the wife may be called to prove that credit was given to her husband.' Upon the same principle that the husband and wife cannot be witnesses for or against each other, so in general are their declarations or admissions inadmissible in evidence.'" The declarations of the wife are not evidence for the hus- band ;" and in an action for criminal conversation, the wife's confessions are not evidence for the husband ;'" but in such action • Bui. N. P. 287 ; 1 Hal. P. C. 693. 2 2 Lord Eaym. 752. » 2 T. E. 265 ; 9 Bronwl. 47. * Lord Raym. 744 ; Stra. 1095 ; 2 Stark, on Evidence, 708. '■ Leach, 133. 6 1 P. Wms. 610, 1 ; 12 Vin. Ab. pi. 28 ; 1 Brownl. 47. ' 1 Burr. 424 ; 4 T. R. 678 ; 2 N. R. 331 ; 2 Stark, on Evidence, 708 ; Lord Raym. 344. s See 2 Stark, on Evidence, 709. 9 Bull. N. P. 287 ; 1 Stra. 504. '» 6 T. R. 680 ; Willes, 577 ; 3 Ves. & B. 165 ; Bull. N. P. 28 ; Hutt. IS ; 1 T. R. 69 ; 1 Burr. 635 ; Brownl. 47. 'I 4 Camp. 70. 12 Bull. N. P. 28 ; Willes' Rep. 577. 37 [577] CHAP. XLI.] WITNESS. [§ 103i the conduct of the husband and wife, and their letters passing between them, are admissible to show the terms of affection on which they were living; but the letters must be strictly proved.' In such action, also, the letters of the wife to the defendant are not evidence against the husband, though conversations between her and the defendant are.^ § 1034, An admission by the wife, even of a trespass com- mitted by her, is not evidence to affect the husband.' So a declaration by the wife in an action against the husband, that the husband absented his house for the fear of creditors, is in- admissible in evidence." So the answer of the wife in equity cannot be read against the husband.* But letters written by the husband to the wife may be read as evidence against him ; and so a discourse between the husband and wife, in the pre- sence of a third person, may be given in evidence against the husband, like any other conversation in which he may have been engaged.* The rule of law as to the incompetency of the husband and wife being witnesses for or against each other is carried to such an extent, that even though the husband consent to the wife's being examined, it will not avoid such rule.' And this rule holds even after the death of one of the parties, or a divorce for adultery, or a divorce a vinculo matrimonii.^ So a widow can- not be asked as to a conversation between her and her deceased husband.' But there are various exceptions to the above general rule ; thus in high treason a wife may be admitted as a witness against ' 4 Esp. Rep. 39 ; 2 Stark. 191 ; 1 B. & A. 90, S. C. ' Bull. N. P. 28 ; Willes, 577. » 7 T. R. 112. " 3 Moore, 23 ; and see 1 P. Williams, 610-611 ; 12 Vin. Alj. pi. 28 ; 1 Brownl. 47. 5 3 P. Wms. 238 ; Salk. 350 ; Vem. 60, 109-110. 6 Bull. N. P. 28 ; 1 Phil, on Evid. 6 ed. 76. ' R. T. Hardw. 264; 1 Hale, 48. 8 6 East, 192. s 1 Ry. & M. 198. [578] § 1036] WITNESS. [chap. xli. her husband, because the tie of allegiance ought to be more obligatory than any other.' § 1035. By 6 George IV., c. 16, s. 37, commissioners of bank- rupts are empowered to examine the bankrupt's wife, touching the estate and property of her husband. So in the case of indictment for forcible abduction and mar- riage, the woman is a competent witness for the commonwealth.* So in such cases she is a competent witness for the prisoner.' But if the marriage be ratified by voluntary cohabitation, she is incompetent.'' Upon an indictment' for marrying a second wife, the first being alive, though the first cannot be a witness, yet the second may, the last marriage being void.° It is not a settled point whether a man and woman, not ac- tually married, but cohabiting together, can be admitted as witnesses for or against each other ; but it would seem they can.'' In cases of evident necessity, where the fact is presumed to be particularly within the wife's knowledge, there is an exception to the general rule. Thus, a wife may be a witness on the prosecution of her husband for an offence committed against her person.^ On the trial of a man for the murder of his wife, her dying declarations are admissible.^ § 1036. The rule does not extend to declarations of the parties which are in the nature of facts, for in such cases the presumptions which are made are not founded on the credit of ' Lord Raymond, 1 Bull. N. P. 286 ; 1 Brownl. 47 ; see also 2 Keb. 403 ; 1 H. P. C. 301. 2 Supra, Gibb. Ev. 254 ; Cro. Car. 482, 8, 9 ; 1 Hale, 301 ; 1 Vent. 243 ; 3 Keb. 193 ; 3 Stark, on Evidence, Vll. ' 2 Hawk., c. 46, s. 79. - Hale, 301 ; Vent. 243 ; 3 Keb. 193 ; Cro. Car. 488 ; Vent. 243 ; 4 Mod. 3 ; Stra. 633. 5 1 Jao. 1, u. 11. « Supra, 1 Hale P. C. 693 ; 2 Hawk. P. C, c. 46, s. 68 ; Sir T. Eaym. 1. ' See 8 Stark, on Evidence, 711, 2 ; 1 Price, 81 ; Leach, C. C. L. 246. 8 Stra. 633, 1202; Bull. N. P. 287, S. C. ; 1 East, P. C. 454 ; 13 East, 171 ; 1 T. R. 698. = 2 Leach, C. L. 563 ; 1 East, P. C. 357. 579] CHAP. XLI.] WITNESS. [§ 1036 the party, but of the fact. Thus, the declaration of the wife at the time of effecting a policy on her life, of the bad state of her health, is evidence against her husband.' Where the husband has allowed the wife to act as his agent in the management of his affairs, or any particular business, the representations and admissions of the wife, made within the general scope of her authority as such agent, are admissible in evidence against the husband. Thus, in an action against the husband for board and lodging, where it appeared that the bar- gain for the apartments had been made by the wife, and that on demand being made for the rent she acknowledged the debt, the plaintiff was held entitled to recover.^ And in an action for goods sold at defendant's shop, an offer by the wife to settle the demand was admitted as evidence, as she was accustomed to serve in the shop, and transact business in the husband's absence.^ And the admission of a wife as to an agreement for suckling a child, was allowed to be evidence against the husband.* And in an action by a servant for wages, the plaintiff was allowed to give in evidence a deed executed by the wife of the defendant at the time of the hiring, which, though void as a deed, was admitted in order to show the terms of the contract.' So where an action was brought by the direction of the wife in the name of the husband to recover a sum of money which had been taken from her on suspicion that it was the produce of stolen property, it was considered that what she had said (in the absence of the husband) respecting money, when examined on a charge of being concerned in the robbery, was evidence for the husband.* So in an action against the husband for goods sold to the wife during the time he occasionally visited her, an acknowledgment of the debt by the wife is evidence.' And where the wife is accustomed to conduct business for ' 6 East, 188 ; 2 Stark, on Evidence, 712, 3. 2 1 Esp. 142. 2 1 Bing. 199 ; 2 Stark. 204. ' Stra. 527 ; 1 Esp. 141. IS 6 T. R. 176. ^ 4 Camp. 92. ' 2 Esp. 211 ; 5 Esp. 145 ; 1 Camp. 594. [580] § 1038] WITNESS. [chap. sli. the husband, her admission of a debt is available to take the case out of the statute of limitations.' § 1037. McGuirev. Maloney^was an action of trover brought by John Maloney against McGuire, ■who, as administrator of John Maloney, Sr., the plaintiff's father, had sold divers goods and chattels belonging to the estate of the decedent, but which the plaintiff claims to have been his property under an instru- ment of writing purporting to have been executed by his father and himself in the presence of two witnesses, which transferred the property to himself. To prove the execution of this instrument the plaintiff brought forward his mother. The court said: "It is true that the policy of the law, sub- serving the fundamental interests of society, so far protects that confidence and privacy which are essential to the marriage rela- tion, and necessarily spring from it, as not only not to allow but to prevent, even after the termination of the coverture, any dis- closure by the wife in a court of justice which implies a viola- tion of the confidence reposed in her as a wife. The argument of the counsel for the appellant would go much farther and seal the lips of the wife from disclosing any act or declaration of the husband done or said in her presence, and especially in his own house. But neither the principles laid down by the elementary treatises referred to, nor any adjudged case which' has been seen, nor the reason and purpose of the law require, or, indeed, authorize such an extension of the rule. § 1038. The law, even after the death of the husband, will not permit any disclosure by the wife which seems to violate the confidence reposed in her as a wife, lest such permission might tend to impair the harmony of the marriage state, and to affect injuriously the interests of society dependent upon it. But where there is not even a seeming confidence, when the act done or declaration made by the husband, so far from being private or confidential, is designedly public at the time, and from its nature must have been intended to be afterwards ' Holt, C. N. P. 591 ; 2 Stark. 204 ; 1 Camp. 394 ; 4 Camp. 92, 93. 2 1 B. Monroe, 224. [5S11 CHAP. XLI.] -WITNESS. [§ 1039 public, there is no interest of the marriage relation or of so- ciety, which, in the absence of all interest of the husband or wife, requires the latter to be precluded from testifying between other parties such act or declaration not affecting the character or person of the husband. Accordingly, in the case of Jackson V. Vandusen,! the wife was permitted to prove a parol division between her deceased husband and his brothers, although her knowledge of the facts was in part derived from the communi- cations of her husband ; and in the case of Jackson v. Bard,^ the wife was permitted to prove that a deed purporting to have been executed by her husband and herself was antedated. § 1039. In each of the cases of Allison's Devisees v. Allison's Heirs,' and Singleton's Devisees v. Singleton's Heirs,'' the widow of the deceased testator was a witness in the contest between the heirs and devisees to prove the acts and declarations of the deceased which might affect the validity of the will. In most of these cases the question of competency was directly made and decided, not, indeed, on the ground of the rule of policy now under discussion, but on the ground of interest. And in the case of Allisons v. Allisons,' the deposition of the wife had on this and other grounds been excluded by the court of original jurisdiction, but was decided to be admissible by this court. It is true, that as no objection was formally made in those cases on the ground of the rule of policy, applicable to the relation of husband and wife, the cases may not be entitled to the full weight of express decisions on the point. But it is to be observed that in the last two cases the matter of controversy and the attitude of the parties and witness were substantially the same as in the case now before us ; and the fact that in these and similar cases the widow, when free from interest in the immediate contest, has been permitted to prove acts and declarations of her husband without any notice of the objection now urged, tends strongly to demonstrate a concur- rent opinion both of the bench and the bar, that such an objec- tion was wholly inapplicable in cases in which the acts and ' 5 John. Eep. 144. « 8 Dana, 90. " 4 John. Rep. 230. s 7 Dana, 90. ' 7 Dana, 90. [582] § 1040] WITNESS. [OHAP. 5LI. declarations deposed to by the wife were obviously more nearly within the principle of the rule than those which are deposed to in the present instance. We refer to the negative authority of these cases, therefore, as strongly corroborating the conclusion to which we have come, that the witness in this case was competent to prove the facts to which she testified, and that the Circuit Court committed no error in refusing to reject or exclude her testimony, or the instrument of writing to which it related. And although there was testimony tending to disprove the genuineness of the in- strument, the evidence was such as the jury had a right to weigh, and we cannot, in opposition to the opinion of the Cir- cuit Court, set aside their decision." § lOiO. In Short v. Tinsley,' after the death of the husband, the testimony of his widow to facts within her own knowledge, not derived from the husband, was held to be competent to show that a conveyance by the husband was made to defraud his creditors, but not to diminish the liability of the husband's estate to the creditor to whom the conveyance was made. By the 670 section of the Kentucky Code of Practice, hus- band and wife are declared incompetent to testify for or against each other, or concerning any communication made by one to the other during the marriage, whether called as a witness while that relation subsists or afterwards. This also was substantially the common law rule on this subject.^ Such facts, however, as the witness deposed of to her own knowledge, which tended to prove that the sale made to Tinsley by her husband was fraudulent, were admissible as evidence, notwithstanding she was a distributee of her husband's estate so far as they operated alone upon the claims and preferences of the creditors. She had an interest in establishing the fact that her husband did not owe Tinsley anything, because the establishment of that fact would render the estate of her hus- band solvent, and leave something for distribution after the other debts were paid. But she had no interest in deposing to ' 1 Mete. Rep. 897. ' 1 Grreenleaf, Sections 336, 337, 338, and notes to eaoli section. Sections anterior. [583] CHAP. XLI.] WITNESS. [§ 1040 such facts as tended to show that the sale of Tinsley was frau- dulent, whereby the conveyance to him would be vacated, and yet he would still remain a creditor to the amount of the debt which Throckmorton owed him. Although, therefore, her whole testimony was excluded by the court below, in consider- ing the questions that arose in the case, so much of it was con- sidered competent as consisted of facts to which she deposed of her own knowledge, not derived by communication from her husband, and which only tended to prove fraud in the sale, and not to diminish the liability of her husband's estate to Tinsley as one of his creditors.' ' The object of this work will not permit more than a reference merely to evidence, as it is matter of practice. The reader is, however, referred to the leading elementary works upon evidence, of Greenleaf, Philips, and Starkie, where the same may be found as it may incidentally arise under the appro- priate chapter, and heads of their respective digests. [584] § 1041] LIMITATION. [CHAP. XLII. CHAPTER XLII. LIMITATION. § lOil. Mr. Justice Story, in Spring v. Gray,' said : " I con- sider the statute of limitations a higUy beneficial statute, and entitled, as such, to receive, if not a liberal, at least a reasonable construction, in furtherance of its manifest object. It is a statute of repose, the object of which is to suppress fraudulent and stale claims from springing up at great distances of time, and surprising the parties, or their representatives, when all the proper vouchers and evidence are lost, or the facts have become obscure from the lapse of time, or the defective memory, or death, or removal of witnesses. The defence, therefore, which it puts forth is an honorable defence, which does not seek to avoid the payment of just claims or demands, admitted now to be due, but which encounters, in the only practicable manner, such as are ancient and unacknowledged; and, whatever may have been their original validity, such as are now beyond the power of the party to meet with all the proper vouchers and evidence to repel them. The natural presumption certainly is, that claims which have been long neglected are unfounded, or at least are no longer subsisting demands. "And this presumption the statute has erected into a positive bar. There is wisdom and policy in it, as it quickens the dili- gence of creditors and guards innocent persons from being betrayed by their ignorance, or their over confidence in regard to transactions which have become dim by age. Yet I can well recollect when courts of law exercised a most unseemly anxiety to suppress the defence ; and when to the reproach of the law almost every effort of ingenuity was exhausted to catch up loose and inadvertent phrases from the careless lips of the supposed debtor, to construe them into admission of the debt. Happily that period has passed away, and judges now confine themselves ' 5 Mason, 523. [585] CHAP, xlil] limitation. [§ 1041 to the more appropriate duty of construing the statute rather than devising means to evade its operation.'" The statute of limitations, on which the security of all men depends, is to be favored,'' and the statutes of the country where the remedy is sought governs not that where the contract was made or cause of action accrued.' The force of the statute of limitations consists in making time alone evidence that the claim has been released, discharged, or abandoned.'* Equity follows the law, and courts of equity, from their first institution, had discountenanced stale claims, and have always refused them aid who supinely and negligently slept upon their rights. As soon as the statute of limitations of James I. was made they eagerly adopted the limitations it prescribes, and has long since become the settled rule of decisions in those courts.' Where the remedy is at law as well as in chancery, the chan- cellor will apply the limitation at law.* And for the various principles of the statute, and in which it may incidentally arise, the several elementary works recently published are referred to.' Laws of limitations and prescriptions are founded in the law of nations, and recognized by national law. Necessity of limita- tions of actions and bars of claims by lapse of time are concurred in by all nations. The law of nature fixes no precise time when claims must be asserted, and that is in the discretion of the. legis- lative authority in each State. The principles upon which the legislative authority establishes the certain periods of limitation and prescription are just, and the statutes may be retrospective, and in some cases justly so.' ' 2 Parsons on Contraots, 343-7 ; 10 B. Monroe, 165-78 ; Beard v. Smitli, 6 Monroe, 492-5. " Greer v. Rivet, 2 Salkeld, 421. 3 Ibid. 440; Beard v. Smith, 4 Monroe, 492-5-7 ; lb. 311 ; lb. 521 ; 3 Mon- roe, 330 ; 2 Parsons' Contraots, 343-7. '' Graves v. Graves, 2 Bibb, 207. ^ Reed u. Bullock, Littell's Select Cases, 512 ; Ralls v. Hughs, 1 Dana, 408 ; Kaine v. Bloodgood, 7 Johnson's Chy. Rep. ; Fenwiok v. Macey, 7 Dana, 278. ^ Lexington Ins. Co. u. Page, 17 Ben. Monroe, 446. ' 2 Parsons on Contracts, 341-379 ; Addison, 95-231 ; Chitty on Contracts ; Angell on Limitation generally. ' Beard v. Smith, 6 Monroe, 492-5 ; 2 Parsons on Contracts. [586] § 1041] LIMITATION. [CHAP. XLII. At law limitation begins to run from the perpetration of fraud, in equity from the discovery thereof.' Upon the sale of a slave by one without title and without warranty, the right of action accrues, and limitation begins to run from the day of sale.' For the law implies a warranty of title on the part of the veddor of a chattel which is like a covenant of seisin, and it is broken immediately if the vendor have no title, and the limita- tion commences to run from that time.^ So as to vendors of provisions for domestic use, as they are bound to know that they are sound at their peril, and the law implies a warranty accordingly.^ As to the rights of married women and infants, there are many savings, for their disabilities, and though each of our United States have their own peculiar savings, yet there are some general principles running mainly through all of them as to their construction and application, and differing, too, as to whether derived by will or descent, a longer period being given in the latter than the former. And, as a general rule, if several disabilities coexist when the right of action accrues, the statute does not begin to run until all are removed. But if there exists but one disability at the time when the cause of action accrues, other disabilities, aris- ing afterwards, cannot be tacked to the first so as to extend the time of limitation. In Kentucky, the infancy of some of the heirs, when the right of all accrued by descent, prevents limitation from running, and saves the rights of the other heirs ;' but it is otherwise where they claim under a will or prosecute an appeal oi" writ of error, if any one alone would be barred all are barred." ■ Pyle V. Beokwith, 1 J. J. Marshall, 455 ; Ellis v. Kelsoe, 18 Ben. Monroe, 301. " Soott V. Scott, 2 Marshall, 218 ; Chancellor v. Wiggins, 4Ben. Monroe, 201-2 ; Ellis V. Kelso, 18 Ben. Monroe, 300. ' Chancellor v. Wiggins, 4 B. Monroe, 201-2 ; Chism v. Wood, Hardin, 531 i Payne v. Eeddin, 4 Bibb, 504 ; Soott v. Scott's Adm'r, 2 A. K. Marshall, 215 ; 18 Ben. Monroe, 301. ' Fleet & Semple v. HoUenkemp, 13 Ben. Monroe, 227 ; Van Braokland v. Fonda, 12 Johnson's Eep. 468 ; 3 Blaokstone, 165. ^ Harlan's Heirs v. Seaton's Heirs, 18 Ben. Monroe, 326 ; May's Heirs v. Ben- nett, 4 Littell, 314. ^ Helm V. Bently, 1 Metoalf, 510, and Fleming «. Fleming, MS. Opinion, July, 1859. [587] CHAP. SLII.] LIMITATION. [§ 1041 The disability of coverture cannot be added to that of infancy to prevent the running of the statute of limitations.' Nor one disability, as infancy and coverture, added to another to prevent the running of the statute of limitations.^ The general rule is, that when the statute of limitations begins to run, it continues to run until the har is complete. If the statute once begins to run, by a removal of the disability, it continues to run, notwith- standing other disabilities supervene,^ one disability cannot be added to another to avoid the statute of limitations.^ It is a well settled doctrine that, with respect to claims to personal property, when the statute begins to run, it continues to run, notwithstanding the death of the claimant.' There is no saving in the statute by which the interval that elapses after the death of the claimant, before administration upon his estate has been granted, is excluded in the computa- tion of the time necessary to com/plete the har. When the statute commences in the lifetime of the claimant, it is not interrupted by his subsequent death, although the cause of action did not accrue in Ms lifetime; it would not commence running until administration upon his estate was granted.^ Where, however, a suit has been commenced within the time limited, and that time runs out, and the suit abates by the death of the plaintiff, it has been decided that, if a suit be com- menced within a year after the abatement, the plaintiff comes within the equity of the proviso in the statute, allowing a year within which a new action may be brought in certain specified cases.' Merely constructive and implied trusts are not exempted from ' Martin v. Letty, 18 Ben. Monroe, 581 ; Finley & Wife v. Pattei-son, 2 B. Monroe, 78. ^ Manion's Adm. v. Tilsworth, 18 Ben. Monroe, 601. = See Riggs v. Dooly, 7 Ben. Monroe, 240; Boyoe v. Dudley, 8 lb. 513; Clark's Ex. V. Trail, 1 Metcalf, 35. * Mitchell V. Berry, 1 Metcalf, 602. « Baker v. Baker, 13 Ben. Monroe, 408 ; 1 Bibb, 181 ; 2 lb. 537 ; 3 Mon- roe, 41. ^ Baker u. Baker, 13 Ben. Monroe, 409 ; Montgomery v. Caldwell, 4 Bibb, 306 ; Langford v. Gentry, 4 Bibb, 468 ; 1 Washington, 302 ; 8 Cranch, 84. ' 2 Greenleaf, Sect. 432, last edition ; 2 Saunders, 63, g. notes ; 10 Wen- dell, 278 ; 13 Ben. Monroe, 409 ; 2 Starkie, 881, note (1) ; lb. 888, note (1). [588] § 1041] LIMITATION. [chap. XLII, the statute of limitations of five years, but the statute of limita- tions cannot prevail against an express and direct trust.' Limitation dates from the process sued out and returned executed,* unless it be connected to and with a prior process by an alias, and the record show regular continuances.' Where one received a slave as trustee or agent of infant heirs, the statute will not bar their right to recover it from him, unless there has been an open renunciation of the trust at least five years before suit brought, and where the heirs or some of them were under no disability, or unless none of them labored under such disability for five years." Adverse possession during the pendency of a life estate pre- sents no bar to the right of a tenant in remainder or reversion, for no cause of action has arisen.* And if the tenant of the life estate in slaves sell the absolute right and title in them to a negro trader, who follows the busi- ness of taking slaves to a southern market, such sale is a conver- sion of the slaves in such a manner as to defeat the estate in remainder, and a right of action for damages accrues eo instanti to the remainder-man against the tenant for life, for the value of the slaves, &c. ; and in such case the statute of limitations commences to run against the remainder-man's right of action at the time of such sale made, and will bar that right after the lapse of ,/ive years. And in such case the remainder-man can maintain an action against any person who has the slaves in possession, or who has had them in possession since the death of the tenant for life, or who did any act injurious to the estate in remainder during the continuance of the life estate, within five years preceding the commencement of his action.* A chancellor may interfere at the instance of one holding the interest in remainder in slaves, and prevent tenant for life, ' Mamons v. Titworth, 18 Ben. Monroe, COl ; Talbot v. Todd, 5 Dana, 199 ; 16 S. & E. 379 ; 5 J. C. R. 531. ^ Pindell v. Maydwell, 7 Ben. Monroe. 3 Hume V. Dixon, 4 Bibb, 276 ; 2 Starkie, 888, note x. ' Hendriok v. Robinson, 7 Dana, 166 ; S. P. Farrow v. Edmonson, 4 Ben. Monroe, 606. 5 Tom. Davis v. Tingles, 8 Ben. Monroe, 512 ; Boone i'. Dyke, 3 T. B. Mon- roe, 537 ; Edwards v. Woodfolk's admrs., 17 Ben. Monroe, 380 ;,Betty v. Moore, 1 Dana, 236. 8 Coffee V. Wilkinson, 1 J. P. Metcalf, Ky. Rep. 101. [ 589 ] CHAP. 5LII.] LIMITATION. [§ 1041 or his vendee, from removing slaves so held out of the State ; but after the removal of property so held, he cannot interfere, especially where the life estate is hanging, just as he may re- strain wastes, but after 'tis done, he cannot redress it.^ Where the legal title to slaves is vested in a trustee to the use of one for life, with contingent remainder to others, the statute runs against the trustee, and an adverse possession of five years will bar the right of all. Otherwise, if the legal estate be not in the trustee, but in the tenant for life, and those in remainder, where no right of action accrues to those in re- mainder, until the life estate determines.* Where the husband and wife unite in a deed to convey the land of the wife, though the deed be ineffectual to pass the right of the wife, she has no cause of action against the grantee of the husband during his life. Consequently, no limitation begins to run until his death, against her rights.' Where the husband is tenant by the curtesy, and conveys the land of the wife, limitation does not run against the wife or her heirs till the death of the husband, which terminates the tenancy by curtesy.'" A divorce, also, terminates the right as tenant by curtesy. ' Bowling's Admrs. v. Bowling et al., 6 Ben. Monroe, 34. ' Edwards v. Woodfolk's Admrs., 17 Ben. Monroe, 380 ; Samuel v. Graham, 1 Dana, 375 ; Vanarsdale v. Fauntleroy, 7 Ben. Monroe, 402. ' Gill, Simpson, &c., v. Fauntleroy's Heirs, 8 Ben. Monroe, 186 ; Wallace v. Marshall, 9 Ben. Monroe ; Miller v. Shaokleford, 3 Dana, 296. But, query, in view of the limitation, as ruled in Phillips v. Pope's Heirs, 10 Ben. Monroe, 165, and the important change hy the Ky. Revised Statutes of 1852, page 38 of Chap. Husband and Wife, Art. 2, Marital Eights, Sect. 1, which provides that marriage " shall give to the husband, during the life of the wife, no estate or interest in her real estate, chattels real, or slaves owned by her at the time, or acquired by her after marriage, except the use thereof, with power to rent the real estate for not more than three years at a time, and hire the slaves in like manner for not more than one year, and receive the rent and hire." Is there not an immediate cause of action for her realty, as for a slave, according to Johnson and Wife v. Green, 17 Ben. Monroe, 123? Where her conveyance is not complete under Sec. 20, 21, 22, Chap, upon Conveyances, Ky. Revised Statutes of 1852, page 189, as in Smith v. Wilson, 2 J. P. Metcalf, 235. * Merriman's Heirs «. Caldwell's Heirs, 8 Ben. Monroe, 33 ; lb. 513. The Ky. Statutes of 1796 and 1814, apply to cases in which the right of entry existed during the coverture, not to cases where that right was suspended by the aliena- tion of the husband. Taylor v. Shemwell, 4 Ben. Monroe, 515 ; Riggs v. Dooley, 7 ; lb. 240. [590] § 1041] LIMITATION. [chap. XLII. and gives an immediate right of entry for the wife's land to her or her heirs against husband, or any person holding or claiming under him.' The Kentucky statute of seven years does not run against a feme covert, to bar her right of entry in lands devised to her during coverture, until seven years after her disability is re- moved.'^ Statutes of limitation, being intended to give repose to those having right or apparent right, should be liberally construed with the view to attain the object intended.^ Courts have no power to make law, but it is their duty to expound statutes so as to give effect to the obvious intent of the legislature, in doing which the court should have respect to the context, subject matter, cause of the enactment, and conse- quences which follow the construction, and not be confined to the letter." Therefore, the Kentucky act of 1840, limiting the time for bringing suits by widows and their heirs for lands (three years), which it has been attempted to convey by husband and wife, confined to the cases enumerated in the statute. In all other cas^s, the widow or her heirs has twenty years from the death of the husband.' By it suit for land by a feme covert or her heirs, for her lands which it was attempted to convey, but which was not conveyed for defects, as specified in the Kentucky act of 1840, must be brought within three years after the right of action accrues,* whether the husband be dead or living.' The disabilities which save the right of action to the heirs of a married woman who has attempted to convey her lands, as specified in the act of ' Oldham v, Henderson, 5 Dana, 254 ; MoMiller v. Graves, MS. Opinion, and 1 Washburn on Real Property, Sees. 53-4, pages 141-2. See, also note (3.) 2 Marshall v. Mcaneen, 3 Littell, 468 ; Gore v. Marshall, 3 Marshall, 319. ' Phillips V. Pope's Heirs, 10 Ben. Monroe, 165 ; Dobyns v. Sohoolfleld, 10 Ben. Monroe, 313. ■* Mason v. Rogers, 4 Littell, 377 ; Phillips v. Pope's Heirs, 10 Ben. Monroe, 172. » Phillips V. Pope's Heirs, 10 Ben. Monroe, 165 ; Dobyns v. Sohoolfield, 10 Ben. Monroe, 313. s See Marital Rights, Sec. 1, Ky. Rev. Stat, of 1852, page 387 {note 1), ante- rior, and Oldham v. Henderson, 5 Dana, 254. ' See note 3. [591 J CHAP. SLII.] LIMITATIOK. [§ 1041 1840, are to be the same as would save the o-ight of action under the Kentucky statute of limitations of 1796 and 1814; all must be under disability.' Where husband and wife made a deed, attempting to convey the lands of the wife, the husband died, leaving the wife; after- wards she died, leaving an only daughter, a feme covert. Held, that the husband of the heiress was bound to sue within twenty years from the time the right of action accrued to his mother-in- law; and though the right of his wife might be protected by the coverture, his right was not ; and that he could not sue jointly with his wife.^ And where husband and wife united in the conveyance of land, the inheritance of the wife, and through mistake convey more land than was sold, no limitation commences to run against the right of the wife to recover for the surplus, or compensation therefor, until the wife hecomes discovert} Before the Kentucky statute of 1852, it was held, that the wife whose land is aliened by her husband, her heirs, &c., had, by the statute 32 Henry VIII., re-enacted by that of Kentucky of 1798, the right to enter upon the land immediately upon his death, and that she might maintain ejectment to recover it, with- out any previous actual entry; for that wherever by entry alone the owner might acquire the legal possession, ejectment might be brought without an actual entry. And notice to quit is not necessary to enable the widow to recover her land where conveyed by her husband during the coverture. And where a husband aliened his wife's lands (be- fore statute of 1852), his conveyance then passed all his interest, and the alienee could hold as long as his grantor, the husband, could have held — i. e. till his death. But upon that event the wife's right of entry accrued, and was not barred for twenty years." ' 10 Ben. Monroe, 174 ; these statutes, i. e., of 1796 and 1814, received a ooustruotion in the oases of Taylor v. Shemwell, 4 Ben. Monroe, 578 ; Riggs v. Dooley, 7 Ben. Monroe, 240, and Boyoe's Heirs v. Dudley, 8 Ben. Monroe, 613 ; Masterson's Heirs v. Marshall's Heirs, 5 Dana, 414. ' Sharp V. Head, 11 Ben. Monroe, 277 ; 2 Dana, 88. ' Grundy w. Grundy, 12 Ben. Monroe, 271. * Miller v. Sohaokleford, 3 Dana, 295. See note 3, page 590, ante. [592] § 1041] LIMITATION. [chap. XLII. Length of possession under a particular estate gives no title. Time never operated as a bar, unless there is an adverse pos- session; and possession of the inheritance of a feme covert, under a conveyance from the husband alone, is not an adverse holding to her during the coverture.' The alienation or conveyance, by a husband, of the wife's inheritance or freehold during coverture, makes no discontinu- ance thereof; but she or her heirs might enter according to their respective rights, notwithstanding such alienation or convey- ance. But (by the statute) alienations purporting to pass a greater estate than the alienor has, pass such estate as he may lawfully convey, and no more, except that his warranty will bar the heir to the value of his inheritance. Therefore, the deed of the husband, of land belonging to the wife in her own right, passed his interest only, and did not work a discontinuance of her estate therein, nor bar her right to enter upon the land after his death. Nor is she bound by his warranty, as she is not his heir.^ The statute of limitations is not only a bar to the remedy, but it takes away the legal right.^ A party remaining in the adverse possession of slaves for five years, thereby becomes invested, in virtue of the statute of limitations, with such a right as to enable him to recover them of the former owner even, who may have afterwards obtained the possession.'* The statute of limitations begins to run immediately the right of action accrues, and assumpsit is barred at the end of five years (excluding in Kentucky the six months next succeeding qualification there allowed before a suit can be instituted).* The statute does not run in favor of one who is bailee or pawnee of personalty. Such possession is not adverse.^ 1 Miller v. Schaokleford, 3 Dana, 296. 2 Ibid. 291. ' Stanly v. Earl, 5 Littell, 281 ; Maddox v. Allen, 1 Metoalf, 495 ; lb. 623. ■• Birney v. Richards, 5 Dana, 425 ; 7 J. J. Marshall, 200 ; 3 Ibid. 374 ; 5 Monroe, 94 ; 5 Littell, 281 ; 3 Ibid. 136 ; Maddox v. Allen, 1 Metcalf, 495 ; 4 J. J. Marshall, 152. * Caldwell v. Irvine, 4 J. J. Marshall, 109. ^ Mims V. Mims, 3 J. J. Marshall, 106. 38 [ 593 ] CHAP. XLU.] LIMITATION. [§ 1041 But a demand for the hire of mortgaged property, accrued five years before suit brought, cannot be recovered. It is barred by lapse of time.' ' Fenwiok v. Maoey, 1 Dana, 286 ; S. P. 7 Monroe, 272. [59i] § 1042] KEVIVOB. [CHAP. XLIII, CHAPTER XLIII. REVIVOR. § 1042. In connection with the statute of limitations, a prompt revivor is an important element, in proper time, in case of death, to save the continued running of the statute, and that it may not date as the institution of a new suit from the time of revivor, and suing out, service, and return of process thereon. If the suit or writ is abated by the death of the plaintiff (or by her marriage, if a feme sole), the operation of the statute is prevented by the commencement of a new suit, by the proper parties, within a reasonable time, and this, where it is not other- wise regulated by statute, is ordinarily understood to be one year; this period having been adopted from the analogy of the fourth section in the statute of limitations of James I., providing for the cases of judgment reversed or arrested.' But this rule does not apply to an action determined by a voluntary abandonment by the plaintiff.^ The running of the statute will not be suspended by a suit in which the plaintiff voluntarily suffers a nonsuit.' As when a person brings an action be/ore the expiration of limitation, and dies before judgment, it has been held that his representative may, within the equity of the statute of limita- tions, revive or bring a new action.* Provided he does it recently, or within a reasonable time. No precise time has been fixed as to what shall be deemed a reason- able time; but it should seem that the statute is the best guide upon the subject, and as that provides that a new action, in the ' 2 Greenleaf, section 432, and authorities cited in note to last edition of 1858; 2 Saunders's Kep. 63, jr. notes; Baker v. Baker, 13 Ben. Monroe, 409 ; Kentucky Civil Code, sections 569-70 ; N. Y. Rule and Stat., 10 Wendell, 278. ' 2 Greenleaf, section 432 ; 8 Cranch, 84-93 ; Harris ti. Dennis, 1 S. & R. 236. ' Montgomery v. Caldwell, 4 Bibb, 305. * Matthews v. Phillips, 2 Salkeld, 425 ; Kensey r. Hayward, 1 Lndwick, 260. [595] CHAP. XLIII.] EEVIVOR. [§ 1042 cases enumerated in it, must be commenced within a year^ so representatives ought also to bring a new action within that period.' The Court of King's Bench held that the most that had ever been allowed was a year, and that within the equity of the pro- viso in the statute, which gives the plaintiff a year to commence a new action where the judgment is arrested or reversed; and that they would not go a moment further, for it would let in all the inconveniences which the statute was made to avoid. In- deed, if the executors had been retarded by suits about the will or administration, and had shown it in the pleading, it would have been otherwise, because the neglect would have then been accounted for.^ And Lee, Justice, said: "I think what is or is not a recent prosecution, in a case of this nature, is to be determined by the discretion of the court, from the circumstances of the case; but generally the year in the statute is a good direction, ample to revive in."^ Upon the whole, therefore, it seems prudent for the repre- sentative to bring a new action as soon as he possibly can after the death of his testator or intestate, and at all events not to delay it beyond a year." If an action be brought by a feme sole within five years, and pending the action the five years expire, and then she marries, whereby the suit abates, it has been holden that she and her husband may recently bring a new action within the equity of this clause of the statute, though the second action cannot, in the nature of the thing, be a continuance of the former writ." ' Kensey v. Hayward, 1 Lord Raymond, 434 ; 1 Arohbold, 37. " Wilcox V. Huggins, 2 Strange, 907 S. C. ; Fitzgibbon, 170-289. ' Fitzgibbon, 170-289; an'action was permitted after fourteen months in Lethbridge v. Chapman, 15 Viner, 103. * 2 Saunders's Rep. 63, h. note; Fitzgibbon, 170-289 ; Huntingdon v. Brink- erhoff, 10 Wendell, 278 ; Baker v. Bakel-, 13 Ben. Monroe, 409. ' 2 Saunders's Rep. 63, h. note; Forbes v. Lord Middleton, cited in Mr. Durn- ford's note (c) to Karver v. James, Wille's Reports, 259. [59t)] § 1043] LIS PENDENS. [OHAP. XLIY. CHAPTER XLIV. LIS PENDENS. § 1043. Wheee the suit is properly prepared and regularly pending, it is as effectual constructive notice of its object as of all . other conveyances when duly recorded in the appropriate office, as required by law, for it is upon similar grounds that every man is presumed to be attentive to what passes in the courts of jus- tice of the State or sovereignty where he resides or may attempt to purchase any property. And, therefore, a purchase made of any property actually in litigation, pendente lite, for a valuable consideration, and without any notice, express or implied in point of fact, affects the purchaser in the same manner as if he had such notice; and he will be bound by the judgment in the suit.' "Where the proceedings have all been regular, and the proper parties before the court to them maintain and have the benefit of the lis pendens, it is not necessary to prosecute the stiit with even ordinary diligence, as it can then be lost only by an unusual negligence in its prosecution.' The main object being to first prepare the suit as to the pro- per parties upon appropriate pleadings and process, to be effective as to the parties and privies as a pending suit, when it continues to be a lis pendens (if otherwise regular) within the period al- lowed for, and subject to, a reversal by an appeal or writ of error even.' But to affect intermediate purchasers and subject them to the lis pendens, there must be diligence in the due and regular pro- secution of the suit.'' If the complainant dies, the suit must be ' See 1 Story's Equity, Sees. 405, 406. ^ Grossam v. Donaldson, 18 Ben. Monroe, 238. ' Clary v. Marshall, 4 Dana, 95 ; Watson v. Wilson, 2 Dana, 406 ; Sugden, 537. « Erhman v. Kendriok," 1 J. P. Metoalf, 147 ; 6 B. Monroe, 447 ; 2 Dana, 406. [597] CHAP. XLIV.] LIS PENDENS. [§ 1043 revived within a reasonable time, "the year allowed for that purpose."* A failure to make the proper parties to a suit in chancery, by which the proceeding is protracted for a great length of time, may amount to such negligence as will deprive the party of the benefit of the application of the principle of lis pendens against bona fide purchasers from the party .^ As to the effect of amendments, new facts, and 7iew parties. In most of the cases the indulgence given by the court is allowed to the mistakes of parties and with a view to save ex- pense, but when injury may arise to others the indulgence has been more rarely granted, and so far as the pendency of a suit can afiect others than the parties to the suits, or strangers, matter brought into a bill by amendments will not have relation to the time of filing the original, but the suit will be so far considered as pendent only from the time of the amendments.' The amendment of a bill operates in some stages of the suit as a waiver of the prior proceedings taken on behalf of the plain- tiff, and in others has the effect of depriving the defendant of the power of dismissing the bill for want of prosecution. The plaintiff by amending his bill loses the benefit of all pro- ceedings of contempt issued against the defendant either for want of his appearance or his answer, and has the effect of obliging him de novo, and entitles the defendant to an ex parte order to be discharged without either payment or tender of costs.'' The lis pendens created by a new amendment cannot be permit- ted to relate back to the commencement of a new action, and affect intervening rights,' and where there is no equity upon the ' 2 Grreenleaf, See. 432, last edition ; 2 Saunders, 63 g. and notes ; Baker v. Baker, 13 B. Monroe, 409 ; 10 Wendell, 278. " Clarkson v. Morgan's Devisees, 6 Ben. Monroe, Ky. Eep. 448, 449 ; Mitford, 73-5 ; 10 Wendell, 456 ; Bishop of Winchester v. Blair, 3 Vesey, 314 ; 17 Law Library, 101. ' Mitford's Pleadings, p. 400. See also Price v. Dudley, 10 Ben. Monroe, 88 ; Stone & Warren v. Connelly, 1 J. P. Metcalf, 656 ; Jones v. Lusk, 2 J. P. Met calf. • See 1 Smith's Chancery Pr^ictioe, 304 ; also for the general principles a full discussion in Clarkson v. Morgan's Dev., 6 Ben. Monroe, 451 ; Stone & War- ren V. Connelly, 1 J. P. Metcalf, 656 ; Jones v. Lush, 2 lb. 356. ' 1 J. P. Metcalf, 656 ; 2 J. P. Metcalf, 356 ; 6 B. Monroe, 451, supra. [598] § lOiS] LIS PENDENS. [CHAP. XLIV. pleading, though parties and process be regular, there will be no Us pendens whatever.' A lis pendens purchaser of land must abide the pending suit, and he will be required to surrender a possession so acquired to the successful party.' The general rule is, that a person who purchases during the pendency of a suit is bound by the judgment that may be ren- dered against the person from whom he derives title.' The rule, however, does not operate to annul the conveyance, but only to render it subordinate and subservient to the rights of the parties to the action.* A petition brought by heirs to sell their real estate is not such a lis pendens as will authorize the chancellor to turn out one who enters upon the land pending the petition for a decretal sale, and put the purchaser under the decree into possession.' The gist of lis pendens is this, and this only : That a stranger who, during the pendency of a suit for property, acquired from either of the parties to that suit, the property thus in litigation shall not be permitted to elude or controvert the decision therein against the title of the party from whom he obtained the pro- perty." If the proceedings be otherwise, regular and prosecuted with reasonable diligence, and without any slips or gross negli- gence aa to parties, revivor, &c.' The filing of a bill with the clerk, or even filing it in court, without suing out process, will not create a lis pendens or stop the running of the statute of limitations.' Though as to third persons there may be no lis pendens until process be served, yet, as between the parties, the suit may be pending, and continued before service of process, if not barred ' Pearson & Anderson v. Keedy, 6 B. Monroe, 130. ^ Clarkson v. Barnett's Heirs, 14 Ben. Monroe, 165 ; Fenwick v. Macy, 2 B. Monroe, 486 ; Copenheam v. Huffaker, 6 B. Monroe, 19 ; 1 Story's Equity, Sec. 406 ; 11 Vesey, 197 ; 1 Johnson's Chy. Rep. 566 ; 2 lb. 155. And as to actual notice, see Sugden, 537, and 1 Story's Equity, Sees. 406, 7, 8, 9, 10, 11. 3 Stone & Warren v. Connelly, 1 J. P. Metcalf, Ky. Eep. 655, • Cromwell v. Clay, 1 Dana, 578 ; Kennard v. Adams, 11 B. Monroe, 105 ; 1 J. P. Metcalf, 656. ' Clarkson v. Barnett's Heirs, 14 Ben. Monroe, 166. ' Fenwick v. Macey, 2 Ben. Monroe, 486 ; 6 B. Monroe, 448. ' Clarkson v. Morgan, 6 B. Monroe, 446. ' Pindell v. Maydwell, 7 Ben. Monroe, 315. [599] ■ CHAP. XLIV.] LIS PENDENS. [§ 1043 by a continual running of the statute of limitations from the time the cause of action accrued.' To constitute such a service as will affect or prejudice a bona fide purchaser of the subject in controversy there must be service of process, actual or constructive, unless there be actual notice of the pending suit. After a bill filed by a creditor against his debtor, and service of process, there is a lis petidens, although there be no injunction in form, and a lien attaches upon the fund for complainant.^ A suit without equity against the debtors of a firm who may be enjoined by a bill will not overreach a settlement thereafter made by the surviving partner with other debtors of the firm.^ Nor will an amendment with sufficient equity relate back and sustain a prior defective bill to the prejudice of an intervening right.* A writ of habere facias may properly issue against a lis pendens purchaser without his being made a party.' But may be enjoined, however, for irregularity or other ap- propriate remedy as the facts may require. ■ Lytle V. Pope, 11 Ben. Monroe, 310 ; Sugden on Vendors, 537. 2 Bullitt V. Stewart, 3 Ben. Monroe, 116 ; Tilford v. Burnliam, 7 Dana, 110 ; Davis V. Sharon, 15 Ben. Monroe. Lis pendens gives preference to a creditor, Dana v. Brown, 1 J. J. Marshall, 306 ; 1 Littell, 308 ; Littell's Select Cases, 279 ; 4 Bibb, 340 ; 3 Monroe, 126 ; Thomas v. Southard, 2 Dana, 480. ' Pearson v. Keedy, 6 B. Monroe, 130. ' Erhman v. Kendriok, 1 J. P. Metcalf, 146 ; Jones v. Lusk, 2 lb. 356. * Clarkson v. Morgan, 6 B. Monroe, 446. [600] STATUTES OF THE YAEIOUS STATES. KENTUCKY. MARITAL RIGHTS.' SECTION I. Markiage shall give to the husband, during the life of the wife, no estate or interest in her real estate, chattels real, or sl9,ves owned at the time or acquired by her after marriage, except the use thereof, with power to rent the real estate for not more than three years at a time,' and hire the slaves in like ' Article 2, Chap, xlvii., from Ky. Rev. Statutes of Ist July, 1852 (page 387), vol. ii. ; Stanton's Revision, page 8. • 1. If a tusband leases his wife's land for^we years, although the lease is not good for the whole term, it is good for three years thereof. He has the power to transfer his right to the rents to an assignee, who thereby becomes entitled to them in his stead. The legislature no doubt intended that the rents should be reserved for the use of the wife and family, and if the husband should abuse his control over them, and divert them to another purpose, the wife can, if her necessities re- quire it, by an application to a Court of Equity, have the subsequently accru- ing and undisposed of rents of her lands settled upon her, and secured for her use. — Per Simpson, Justice ; Fields v. Graves, MS. Opinion, 1856. 2. The only object of this restriction upon the power of the husband, as respects the period for which he may rent the real estate, evidently was to secure more effectually to the wife the exercise of her right of appropriating the rents and profits in the purchase of necessaries for herself and family, and also, of her further right to demand of the chancellor an equitable settlement upon herself, out of the rents and issues of her real estate, whenever she may present a state of case which would authorize such equitable remedy. 3. And therefore the statute was not intended to directly convert the rents and profits of the wife's lands into a separate estate for her exclusive 'use and benefit, and subject to her exclusive control and dominion, without regard to the circumstances of herself and prior to the passage of the act of 1846. — Session Acts, p. 43, now Revised Statutes, Sec. 1, page 387. 4. The well settled doctrine was, that by the marriage the husband acquired an estate for the life of the wife, or during coverture, in lands owned by her, [603] KENTUCKY. manner for not more than one year, and receive the rent and hire. and if he sold her lands, although her inheritance would not pass by such sale, yet, it invested the purchaser with the husband's interest for Ms life (if he survived) and with the right of possession which was incidental to it. — McLain v. Gregg, 2 Marshall, 455 ; Smith v. Long, 1 J. P. Metcalf, 487. 5. But by the 3d section of the act of 1846, supra, referred to, it was pro- vided that in no case should the' curtesy or life estate of the husband in the lands of the wife be sold by process of law, except after the death of the wife, the husband surviving. — lb. 487. 6. Although this essentially modifies the pre-existing marital rights of the husband as therein named. Yet, the only object of the restriction- upon the power of the husband, as it respects the period for which he may rent the real estate, evidently was to secure more effectually to the wife the exercise of her right of appropriating the rents and profits in the purchase of neces- saries for herself and family, and also of her further right to demand of the Chancellor an equitable settlement upon herself, out of the rents and issues of her real estate, whenever she may present a state of case which would authorize such equitable remedy on her behalf. — Smith & Wife v. Long, 1 J. P. Metcalf, 488. 7. A restriction merely, upon it as to the general pre-existing marital rights of the husband. The statute was not intended to convert the rents and profits of the wife's lands into a separate estate, for her exclusive use and benefit, and subject to her exclusive control and dominion, without regard to the circumstances of herself and husband, or of their family. — Smith & Wife u. Long, 1 J. P. Metcalf, 487. 8. A wife cannot recover rents and profits of the vendors for her lands against the contract of her husband, on a rescission, in the absence of sufficient ground for an equitable settlement upon her, upon the />re-existing principles of equity.— Smith & Wife v. Long, 1 J. P. Metcalf, 486. 9. The rents and profits of the lands of the wife are not a separate estate, for her exclusive use and benefit, and subject to her exclusive control and dominion, without regard to the circumstances of herself and husband, or of their family. — lb. 10. Where a slave was given by a father to his married daughter, Mrs. B , in 1849 or 1850, was exchanged in 1850, with F. for a slave and her child ; and F. executed a bill of sale to the husband (of Mrs. B.) for the woman (slave) and her child. And in 1856, a child of the negro woman, born since 1850, was sold under execution against the husband of Mrs. B., and S. became the purchaser. In 1857, Mrs. B sued S., alleging the foregoing facts, and that the bill of sale to her husband was made without her knowledge or consent ; that she had no knowledge of its existence until a short time before the institution of her suit ; that S. had possession of the slave, refused to surrender to her the possession, &c., and prayed judgment for the delivery of the slave, for hire, &o. ; S. answered, denying any knowledge of the claim, or title of Mrs. B , at the time of his purchase, alleging that he made the purchase in good faith, &o., and claiming title to the slave under B. [604 J MAEITAL EIGHTS. Isfc. Nor shall such real estate, slaves, rent or hire, be liable for any debt or responsibility of his, contracted or incurred Held: That the bill of sale from F. to B. (the husband of Mrs. B.) invested him with the legal title to the woman (slave) and her children, and that the legal title and equity acquired by S., who was an innocent purchaser, without notice of the claim of Mrs. B., must prevail against her latent equity, especially after the lapse of more than six years fi:om the date of the bill of sale, during which time the slaves remained in the possession of the husband, and claimed and controlled by him as his own. — Grarrett v. Gault, 13 Ben. Monroe, 380 ; Shumate v. Ballard, 1 .T. P. Metcalf, 31 ; S. P. Arnett v. Cloudas, 4 Dana, 301 ; Bruce k Loury v. Beokner, 5 Ben. Monroe ; Halley v. Oldham, 5 Ben. Monroe, 233-40 ; Banton v. Campbell, 2 Dana, 421. 11. Such remedy and relief is only extending the ancient and well esta- blished principle of equitable jurisprudence to a state of things thus created by the legislature, and clearly within the reason and necessity of the principle heretofore recognized as to the wife's separate property. — Colvin v. Currier, 22 Barber, N. Y. Rep. 372. 12. To an action against the wife upon a contract, executed dum sola, the husband is a necessary party, and the proceeding cannot be maintained against her without joining him, as a co-defendant. {See Civil Code, Section 49.) — Fultz V. Fox, 9 Ben. Monroe, 502 ; Beaumont v. Miller, 1 J. P. Metcalf, 68. 13. Her coverture in such case affords no defence to a judgment to be levied only upon property that came to him by his wife, or might thereafter come, and it is not necessary to aver it in the petition. — lb. 68. 14. Marriage operates as a gift to the husband of such personal property as is in possession of the wife at the marriage, and as to her slaves (since the act of 1846,) it gives him a contingent interest only. He does not take as a purchaser. But subject to any equity existing at the time of the marriage, unless created in fraud of his marital rights. — Wilson v. Daniel, 13 Ben. Monroe, 350; Smith v. Long, 1 J. P. Metcalf, 487. 15. This provision has no other effect upon the rights of the husband in slaves of the wife than to limit his estate to that of an estate for life, whether there be issue of the marriage or not. — Hart v. Soward, 14 Ben. Monroe, 304; Brown v. Alden, 14 Ben. Monroe, 141. 16. Previously to the act of 1846, the husband, upon the marriage, was en- titled absolutely to all slaves, personal estate, and choses in action, in possession of the wife, and such as he might reduce to possession during the coverture. — Cox V. Coleman, 13 Ben. Monroe, 453 ; Darnall v. Adams, 13 Ben. Monroe, 274; Potts V. Potts & Merret, 14 Ben. Monroe, 406 ; Brown v. Alden, 14 Ben. Mon- roe, 141. 17. Where (in 1842), before the act of 1846, a husband conveyed certain slaves and other personal estate to a trustee, to the separate use of the wife, and for the benefit of her children ; the wife died without issue, leaving her husband and her father : Held, that the husband was entitled in virtue of his marital rights to the exclusion of her father, who would be her heir at law but for the husband's marital rights in the premises. — Cox v. Coleman, 13 Ben. Monroe, 452 ; Brown v. Alden, 14 Ben. Monroe, 141 ; Allen v. Everett, 12 [ 605 ] KENTUCKY. before or after marriage, but shall be liable for her debts and responsibilities contracted or incurred before marriage,' and for Ben. Monroe, 371 ; Payne v. Payne, 11 Ben. Monroe, 139 ; Eice v. Thompson, 14 Ben. Monroe, 377. 18. The foregoing cases settle the following propositions : — 1st. That before the Kentucky act of 1846, the husband upon his marriage became entitled absolutely to all the personal estate, as well as slaves, belong- ing to his wife, in possession or reduced to possession during coverture, and, being so entitled, the property continues his after his wife's death. 2d. That the husband, either as distributee of the wife's estate, or as her administrator if he "Survive her, is entitled to all the choses in action and vested rights to her personal estate and slaves, belonging to the wife before her mar- riage or coming to her during her marriage, and when reduced to his posses- sion as administrator he is not bound to distribute them, but may appropriate them to his own use. But these rights are now subject to the act of 1846, and the same as substantially re-enacted iu that of 1852. 3d. And slaves and personal property conveyed before 1846, to a trustee for the separate use of the wife, on her death vest absolutely in the husband, iiu- less otherwise directed by the terms of the deed, or will, creating the estate. — Cox V. Coleman, 13 Ben. Monroe, 458. 19. The husband, before 1846, was, upon the death of the wife, entitled, as her administrator or survivor, to property held to her separate use unless he be excluded, or the wife, in the exercise of a power conferred, dispose of the property. — Brown v. Alden, 14 Ben. Monroe, 148 ; Payne v. Payne, 11 Ben. Monroe, 138 ; Aokett v. Everett, 12 Ben. Monroe, 871 ; S. P. Stewart v. Stew- art, 7 Johnson, C. Rep. 244; Proudly v. Fielder, 2 M'. & K. 57 ; Fettiplace v. Gorges, 1 Vesey, 48. 20. A husband who has conveyed a separate estate to trustees for the benefit of his wife, is not upon the death of the wife entitled to the slaves as survivor of his wife, but as the administrator of his wife he has a right to the same, against all the world, except the creditors of the wife. — Eichardson v. Spencer, 18 Ben. Monroe, 450. 21. Property conveyed in trust to an unmarried woman, held, to be and re- main separate property after marriage, and even after a second marriage ; but the surviving husband's right in the property, though suspended during the coverture, will attach unless he be excluded by the terms of the conveyance, or the property disposed of by the wife, under a power to do so. — Brown v. Alden, 14 Ben. Monroe, 450. 22. So, where by an antenuptial contract, it is agreed that the wife shall hold her property (land and slaves) to her separate use, to dispose of as she pleases during the coverture, by deed or will, and the wife dies without making any disposition thereof, the agreement is at an end, and the husband has the same right therein, as if the antenuptial contract had never existed, and be- ' The real estate and slaves owned by the wife, and the rents and hires thereof, are exempted from any liability for the debts of the husband, but they shall be liable for her debts contracted before marriage, etc. ; Smith v. Wilson, 2 Metoalf, 237. [606] MARITAL RIGHTS. such contracted after marriage on account of necessaries for herself or any member of her family, her husband included, as fore the acts of 1846 (and 1852), would have vested absolutelyin the husband, but those acts restrain and limit his estate therein, to that of an estate for life. — Hart v. Seward, 14 Ben. Monroe, 304. 23. Where the wife was invested with a general estate in the laud, by deed, and with her husband executed a, note for $300, for work and labor done in building an addition to a dwelling-house thereon, for which plaintiff asserted a mechanic's lien, and in defence she relied upon the facts that the work was so defective as to be valueless ; that she was /erne covert, and plaintiff had no right to subject her estate, for her husband's debt. The Circuit Court rendered judgment in personam against the husband, and subjected the wife's land, it was reversed as to her. The word "necessaries," as used in the above section, should receive a liberal construction, and has been held to embrace such things as the family ought to have and enjoy, including the husband, considering its social posi- tion and the estate of the wife. — Berger v. Forsythe, 17 Ben. Monroe, 556 ; Pell V. Cole, 2 Metcalf. 24. But even this liberal interpretation will not embrace this case. It is not alleged that the addition to the house was necessary for the comfort and shelter of the family, nor does it appear that such an outlay comported with the position of the parties, or the estate of the wife. So far as appears from the record, the husband was insolvent, and upon the land of the wife, eighty acres, worth $1,600, a house had been recently erected under contract with the wife alone, for which she paid $1,275. It is not shown that the addition was essential for the comfort and shelter of the family, nor that she procured it to be done.— Pell v. Cole, 2 Metcalf, 252. 25. The plaintiff therefore failed to show that the consideration of the note sued on was for a, "necessary" within the law, for which the wife's estate could be rendered liable. — lb. And a mechanic's lien could not be created upon the wife's estate or lands by the husband. — Fetter v. Wilson, 12 Ben. Monroe, 91 ; Pell v. Cole, 2 Met- calf, 252. 26. Before first of July, 1852, it was held that the acts of 1831 and 1834 (3 Statute Law, 411), giving liens in behalf of mechanics, material men, &c., gives the lien upon the interest of the employer, and the house, &o. A feme covert cannot be such an employer as to subject her real estate to the lien given by the statute, unless she have a separate estate in the land, nor can the hus- band give a lien on the wife's land by being the employer in the meaning of the statute. — Fetter v. Wilson, 12 Ben. Monroe, 91. 27. The statute of 1846 (since made part of Revised Statutes) has no other effect upon the rights of the husband, in the slaves of the wife, than to place the legal estate in her, and to limit his estate to one for life, and this whether there be issue of the marriage or not. — Hart v. Soward, 14 Ben. Monroe, 304 ; Brown v. Alden, 14 Ben. Monroe, 141. 28. Slaves, since the act of 1846 (Session Acts, page 41), which are the property of the wife upon her marriage, do not vest absolutely in the husband, [ 607 ] KENTUCKT. shall be evidenced by writing signed by her and lier husband.* The remedy may be against both or against her alone, as the case shall require. as they did before that statute, but are placed upon the same ground as real estate, and can only be disposed of as real estate was disposed of 6e/bre the statute, unless it be by contract made jointly with the husband and for neces- saries for the family. — Johnson v. Jones, 12 Ben. Monroe, 329 ; Johnson & Wife w. Green, 17 Ben. Monroe, 118. 29. Since the passage of that act, the husband can make no contract which will render the slaves of the wife liable, unless done by her in conjunction with the husband as provided for by that act. — Johnson & Wife v. Jones, 12 Ben. Monroe, 332. 30. And if the husband sell the slaves of the wife, they may be recovered by action of detinue, as she cannot be divested but in the manner prescribed by law. — Johnson & Wife «. Jones, 12 Ben. Monroe, 332. 31. And her recovery of the value of a slave taken from her and converted, as effectually deprives her of any property or title in the slave, as if she had divested herself of her right by the forms prescribed by a deed executed in pais. — Johnson & Wife v. Green, 17 Ben. Monroe, 118. 32. Since 1846, as the wife's legal title is recognized, a separate estate may be created hj parol, and is secured to her therdby. — Wheeler v. Jennings, 16 Ben. Monroe, 481 ; MoClanahan v. Beasley, 17 Ben. Monroe, 113. 33. A separate estate in a married woman may be created by a parol gift, when the title to the property will pass without a transfer or conveyance in writing, but to sustain such a gift, it must be clearly and distinctly proved that it was made for the sole and separate use of the wife to the exclusion of the husband. Declarations made by the husband that a slave belongs to his wife, when the gift was made previous to the act of 1846, do not even tend to prove that the wife has a separate estate in the slave. Such declarations are often made to point out merely the manner in which the slave was acquired. In this case, therefore, the claim of the wife must depend upon the nature of the gift as proved by the donor. According to his testimony, the slave was given to his daughter as her own property, and he no doubt, as he states, in- tended that the slave should be for the exclusive use and benefit of his daughter. But such intention cannot be allowed to prevail, unless the gift be made in such a way as to express that intention clearly and unequivocally. Here the gift was not so made, and consequently vested the husband with the title of the slave, and consequently was subject to the demands of his credi- tors.— Tinsley & Others v. Roll & Others, 2 J. P. Metoalf, Ky. Rep. 34. The presumption of title in the husband from possession before the act of 1846, does not since exist, and they are not liable now for his debts. — Wheeler v. Jennings, 16 Ben. Monroe, 481 ; MoClanahan v. Beasley, 17 Ben. Monroe, 113 ; Craig v. Payne, 4 Bibb, 337 ; Blair v. Dade's Exr., 9 Ben. Mon- roe, 61. ' This provision relates to her general property as contradistinguished from her separate estate ; Toombs v. Stone, 2 Metcalf, 522. [608] MARITAL RIGHTS. 2d. Nor shall the husband's contingent right of curtesy or life estate, or right to such use, rent, or hire, be sold for, or 35. She cannot make an executory contract for the sale or purchase of land, except as authorized by statute, unless she have a separate estate therein. — Johnson & Wife v. Jones, 12 Ben. Monroe, 330. 36. Her power as to her separate property is imparted under the instrument creating it as such, and of which she has the exclusive control. All of her real estate does not belong to her as such. — Petty v. Malier, 14 Ben. Monroe, 247. 37. And unless she has such an estate and interest, she cannot become employer in the sense of the statutes of 1831 and 1834, by which a lien will be created on their real estate in favor of mechanics, material men, &c. — Fetter v. Wilson, 12 Ben. Monroe, 93. 38. Since the act of 1846, the right which the husband may acquire in the lands of- the wife is not subject to sale to satisfy claims of mechanics and material men during the life of the wife, for improvements made thereon at the request of the husband, without it be by the consent of the wife, given by such writing as that act requires ; nor can a house be sold separate from the land. — Fetter v. Wilson, 12 Ben. Monroe, 93. 39. A house, rented for the use of husband and wife and their family, of a suitable description for their circumstances, is a necessary for which the pro- perty of the wife may be made subject. — Berger v. Forsythe,.17 Ben. Monroe, 556. 40. The execution by a, feme covert of a bill of saXe^ jointly with her husband, without any acknowledgment or privy examination, for slaves sold by him, which were acquired by her since the act of 1846, is of no validity, and does not preclude her, as survivor after his death, from asserting her right to them. — Wood's Adm'r v. Wood's Devisees, 1 J. P. Metcalf, 512; Lynn u. Bradley, lb. 232. 41. But, as there was no fraud in fact, the criterion of damages is the sum paid and interest thereon, from such date as the vendee may be charged for heirs in the suit of the wife against him. — Wood's Adm'r v. Wood's Devisees, 1 J. P. Metcalf, 518 ; 7 J. J. Marshall, 130 ; 4 lb. 142. 42. No statute prior to those of 1846 and 1852, authorized the wife to con- vey anything but land, consequently no conveyance prior thereto, and none since, not made in conformity thereto, could pass any interest of the wife in slaves though recorded. — Lynn v. Bradley, 1 J. P. Metcalf, 232. 43. If a married woman has derived any benefit from the contract she has entered into, there arises on her part a moral obligation to perform it ; and if after the coverture cease, she expressly promises to do so, she will be liable on such promise, and where a, feme covert having an estate settled to her sepa- rate use, gave a bond for repayment by her executors of money advanced at her request to her son-in-law on the security of that bond, and after her hus- band's decease, she wrote promising that her executor's should settle the bond, it was held that assumpsit was attainable against her executors on this promise. — 5 Taunton, 36 ; 2 Atk. 245 ; see lb. 1 Stra. 94. 44. If a woman after the death of her husband, redeliver a deed delivereU 39 [ 609 ] KENTUCKY. otherwise subjected to the payment of any separate debt or responsibility of his during her life.^ SECTION II. Husband and wife may sell and convey her chattel real of a slave, in the same mode as the land of the wife may be sold and conveyed,^ and the parcels shall be his, unless otherwise ex- pressly provided in the conveyance, or the obligation of the purchaser. SECTION III. The husband shall not be liable for any debt or responsi- bility of the wife contracted or incurred hefore marriage,' except to the amount or value of whatever he may receive by her,^ by her during coverture, this will be suf&oient to render her liable on it. — Perkins, S., 154; and see Cowp. 201 ; 2 P. Wms. 127. 45. The husband is not tenant by the curtesy of land of the wife, unless he was seised during the coverture ; and, unless so seised, he has no right which will prevent the heir of the deceased wife from recovery against an ad- verse holder during his life. — Welch's Heirs v. Chandler,- 13 Ben.' Monroe, 420 ; Stinebaugh v. Wisdon, 13 Ben. Monroe, 469. ' This is but declaratory of the pre-existing principles of equity. (See Wife's Equity, sections 155-6, ante.) ^ The husband himself has no power to dispose of the .slaves of the wife since the above, and the act of 1846, if he, alone, does dispose of them, the possession may be recovered by action in the name of the husband and wife. — Johnson & Wife v. Jones, 12 Ben. Monroe, 333. 3 Fultz & Wife V. Fox, 9 Ben. Monroe, 502 ; also Beaumont v. J. Miller, 1 J. P. Metcalf, 70-1, as distinguished from the prior common law principles. — Sections 1016-17, anterior. * 1. It is not necessary, in order to maintain an action against the husband and wife upon the contract of the latter, made dum sola, to aver that the former has received, property by his wife. For, if the averment be necessary, it must be supported by proof, if denied, and the result would be, that a creditor of the wife before marriage could never, during the coverture, convert his simple con- tract debt into a judgment, until the reception by the husband of some pro- perty derived through the wife. The rights of such creditor would, for the time being, be virtually suspended. If he makes him a defendant, and can- not aver the reception of property belonging to the wife, according to the view contended for, he must still go out, so far as the husband is concerned. And then, as in this case, he cannot recover a judgment against the wife, because she chooses to allege in her answer, what was evident in the petition, that she was sole when the contract was made, but covert when the suit com- menced. [610] MAEITAL EIGHTS. independent of real estate or slaves, their use, rents, or hire ; but shall be liable as formerly for necessaries furnished' her after marriage.^ The oonrt is unwilling to admit that such consequences result to the credi- tors of wives before marriage, neither from the Kentucky act of 1846, nor the Revised Statutes of 1852, the provisions being substantially the same, and in the absence of a substantial defence the plaintiff is entitled to a judgment against the husband and wife ; but as to the husband to be levied only upon property that came to him by his wife, or that might thereafter come, as was determined in Fultz & Wife v. Fox, 9 Ben. Monroe, 502 ; see Beaumont v. J. Miller, 1 J. P. Metcalf, 70-1. 2. It is similar in principle to a judgment against an administrator, in which it is for "the debt or damages to be levied of assets in his hands, to the ex- tent that assets may be found to be in his hands, and for the balance of assets which may thereafter come to his hands." — Bott's Adm's v. Fitzpatrick, 5 Ben. Monroe, 398. And then should execution upon such a judgment be duly returned " nulla bona," any interest of the wife embraced by this statute, real or personal, and choses in action, may still be subjected, upon such return, pursuant to chap- ter 5, sections 474, 5, 6, 7 and 8, of the Kentucky Civil Code. And, by section 49 thereof, it is provided that " when a married woman is a party, her hus- band must be joined with her, except that, when the action concerns her sepa- rate property, she may sue alone.-^-Beanmont v. Miller, 1 J. P. Metcalf, 70-1. 3. In the case of Fultz and Wife v. Fox, 9 Ben. Monroe, 502, supra, the following principles were settled: The passage of the act of 1846 and 1852 does not require any change in the mode of proceedings against husband and wife for the debts of the wife, other than that the judgment should show how it is to be levied. The obligation of the husband for the debts of the wife created before marriage, is not absolute, but contingent. The death of the husband or the wife destroys the liability. (S. P. 2 Kent, 144.) For as the law stood previous to the passage of the act, the debt of a feme sole was not, on her marriage, considered as transferred to her husband. If it had been, he or his executor would have been liable after the termination of the cover- ture. The debt remained hers, notwithstanding her marriage, and upon her husband's death, if the debt was unpaid, her liability existed, as it had done prior to her marriage'. The contract was the contract of the wife, and not of the husband, and therefore the law exempting his estate from the payment of the debt cannot be regarded as having the effect of impairing the obligation of the contract. The protection of the wife, and not the benefit of the creditor, was the original ground of the liability of the husband. ' See, for this, Benniok v. Ficklen, 3 Ben. Monroe, Ky. Eep. 166. * As to this general liability, see 2 Kent, 146, 7, 8, 9. Also, 1 Parsons on Contracts, 288, 9, 90 ; Billings v. Pilcher, 7 Ben. Monroe, Ky. Rep. 458 ; Wil- liams V. Monroe, 18 Ben. Monroe, 518 ; Daniel v. Robinson, 18 Ben. Monroe, 301 ; Cole v. Pell, 2 J. P. Metcalf, 252. He is also still liable as before for the torts and frauds of the wife committed during coverture. See 2 Kent, 150. [611] KENTUCKT. SECTION IV. Where the husband abandons the wife and lives separately and apart from her, or abandons her and leaves the State, with- oilt making sufBcient provision for her maintenance, or when he is confined in the Penitentiary for an unexpired term of more than one year, the wife may, by petition in Chancery, be empowered to use, enjoy, and sell, for her own benefit, any pro- perty she may acquire thereafter, or may have acquired since the abandonment or leaving the State; to make contracts, sue and be sued as a single woman ; and also to recover in her own name, any property or debt to which she may be entitled, or to which the husband is entitled in her right. She may also be empowered to sell and convey by her own deed any of her real estate or slaves, freed from any claim of her husband. SECTION V. Such husband, upon manifesting proper disposition again to cohabit with his wife and make suitable provision for her, or • upon his release from the Penitentiary, by his petition may, in the discretion of the court, have all or part of said powers re- voked, and take upon himself the prosecution or defence of any suit pending by or against her. SECTION VI. The wife of an infant husband may unite with his guardian in the sale of his real estate, so as to release her right of dower^ when the guardian is authorized to sell and convey.^ 1 1. Infants, in general, have no more right to open a decree in their favor, or question it collaterally, than adults.— Hannah v. Spott's Heirs, 5 Ben. Monroe, 367 ; Helm v. Bentley, 1 J. P. Metoalf, 610. 2. An infant /cme covert cannot har herself or heirs by a -privy acknowledg- ment.— Philips V. Green, 3 Marshall, 11 ; Prewett v. Graves, 5 J. J. Marshall, 120; Oldham v. Sale, 1 Ben. Monroe, 77; Mackey v. Proctor, 12 Ben. Monroe, 435-6. ' See the decisions under that chapter. [612] MARITAL EIGHTS. SECTION VII. When the real estate of a wife is taken for a railroad, turn- pike, or other public use, or shall be damaged by such road, turnpike, or other public work, the compensation or damages shall be appropriated by the court in such manner as she on privy examination may direct, or without such examination, for her benefit, in such manner as to the court may seem just. 3. And a feme covert, or other person, acknowledging by privy acknowledg- ment, or by a judgment or decree when in a state of insanity, may be relieved in eqviity. — MiUner v. Turner's Heirs, 4 Monroe, 244. 4. If tie privy oouveyauce, or certificate be defective, on the death of the husband, the wife may institute her suit at once, without notice even, for her land and rents therefor. — Bedford v. Thomas, 6 Ben. Monroe, 333 ; Barlow v. Bell, 4 Bibb, 106 ; Miller v. Shackleford, 3 Dana, 294; 4 Ibid. 277-8 ; Venable V. McDonald, 4 Dana, 337. 5. As to her right to rents (see 4 Bibb, 106) and liability for improvements (see Thomas v. Thomas, 16 Ben. Monroe, 425), and her right, and that of her heirs, are restricted to three years' limitation now by stat. — See Philips v. Pope's Heirs, 10 Ben. Monroe, 164 to 175. 6. Where the husband and wife resided upon a lot owned by the wife, upon which there were a building and other improvements, a portion of which were made by him after the marriage. She died in July, 1854, having had no child by him, and leaving him in possession of the property. He admin- ■ istered upon her estate, and rented out the property until the end of that year, and in January, 1855, he again rented it. In April, 1855, the house, whilst occupied by his tenant, and after possession had been demanded of Mm by the heirs at law of the wife (her children by a former marriage), was consumed by fire. The heirs sued the husband and his tenant to recover the value of the premises so destroyed. Held, That however tortuous the pos- session of the husband may have been, it did not constitute him an insurer of the property, nor did not render him liable to the owners for an accidental de- struction of it ; but that he was liable for the value of the property destroyed only in the event that the fire was occasioned by, or was the result of negli- gence or carelessness of himself or tenant. — Morrow v. Mason's Heirs, 2 J. P. Metoalf, 114. 7. So the safety of property, both real and personal, is at the risk of the owner, and the purchaser of real property by executory contract is the equit- able owner of it, and has to sustain any accidental loss that may occur after his purchase, and before the conveyance of the legal title ; and, on the other hand, he will be entitled to any benefit which may accrue to the estate in the interim. — Sugden on Vendors, 174 ; 2 Powell on Contracts, 61 ; Paine v. Miller, 6 Vesey, Jr., 349 ; Johnson and Wife v. Jones, 12 Ben. Monroe, 328. [613] KENTUCKT. SECTION VIII. A MARRIED woman who shall come to this from another State or. country, without her husband, he never having resided here, may contract, buy and sell, sue and be sued, as an unmar- ried woman; but his arrival in the State, and claiming his marital rights, shall revoke all such power, leaving existing liabilities of herself, and all property held by her, and all suits, unaffected by the revocation. CURTESY AND DOWER.' SECTION I. Where there is issue of the marriage born alive,^ the hus- ' Article IV. chapter xlvii. from 2 Ky.' Refised Statutes, 393 ; Stanton's Revision, vol. ii. pagfe 22. ^ 1. It is also a mistake to suppose that, on the birth of a living ehild, the husband becomes tenant for life by the curtesy. His estate, as tenant by the curtesy, is not consummated, and does not come into being until the death of the wife (Thomas' Coke on Littleton, 557-8), and whether it shall ever come in esse, depends upon the contingency of his surviving her. — Oldham V. Henderson, 5 Dana's Ky. Rep. 257. 2. The husband is not tenant by the curtesy of land, unless he was seised during the coverture ; and, unless so seised, he has no right which will pre- vent the heir of the deceased wife from a recovery against an adverse holder during his life. — StinebaUgh v. Wisdom, 13 Ben. Monroe's Ky. Rep. 469 ; Welch V. Chandler, ibid. 431. See also Vanarsdale v. Fauntleroy's Heirs, 7 Ben. Monroe's Ky. Rep. 401. 3. The receipt of the rents and profits is deemed a sufficient seisin in the wife, to entitle the husband to an estate in the land as tenant by the curtesy. — Powell V. Gossam, 18 Ben. Monroe, 192. 4. So, then, the possession of a tenant, who had leased the land from the guardian, being in law the possession of the ward, the wife was in possession at the time she was married, and the right of her husband to curtesy is un- questionable. — Ibid. 192. 5. The husband Is tenant, by the curtesy in lands devised to trustees for the separate use of the wife during the life of tlie husband, if he has been beneficially seised during the coverture. — Payne v. Payne, 11 Ben. Monroe, 139. See also Clancy on rights, 193 ; Roper on Property, 19. 6. Husband cannot be tenant by the curtesy unless the wife be seised in deed. — Stevens v. Smith., 4 J. J. Marshall, 65. 7. The tusband of a wife who was tenant in remainder, has not, during the life of the tenant for life, any such seisin as creates a tenancy by the [614] CURTESY AND DOWER. band shall have an estate for his own life' iu all the real estate owned and possessed by the wife at the time of her death, or of which another may then be seised to her iLse; but shall hold the same subject to her debts. SECTION II. Whether there is such issue or not, the husband shall have an estate for his own life^ in all the slaves the wife owns at ■ the time of her death, and which remain after the payment of her debts. curtesy ; and if the wife die during the existence of the life estate, he has nothing in the land. — Mackey v. Proctor, 12 Ben. Monroe, 435-6. 8. When the lands of the wife are unimproved, and the husband does not take possession of them during the coverture, he has no estate as tenant hy the curtesy in them after her death. The doctrine of the New York courts not approved, — Neely v. Butler, 10 Ben. Monroe, 50. 9. It is the duty of the hushand to take possession of the land of the wife to strengthen her title ; if he fails to do so during the coverture, he is not tenant by the curtesy after her decease. — Neely v. Butler, 10 Ben. Monroe, 50. 10. To constitute a tenancy by the curtesy there must be a seSsin. — Orr v. Hollidays, 9 Ben. Monroe, 69. 11. If an entry is made upon the lands of the wife by the husband, or by another by his authority, a vendee immediate or remote, the husband's right as tenant by the curtesy is thereby consummated. — Vanarsdale v. Fauntle- roy's Heirs, 7 Ben. Monroe, 402. 12. The possession of the vendee of tenant by the curtesy, immediate or remote, is not adverse, but consistent with the title of the wife or her heirs. — Vanarsdale v. Fauntleroy's Heirs, 7 Ben. Monroe, 402. 13. See 1 Washburn on Real Property, chapter VI., title Curtesy, pp. 128 to 141. ' The husband has a life estate " where land is given to a woman and the heirs of her body." — Northoutt v. Whipp, 12 Ben. Monroe's Ky. Rep. 72 ; John- son V. Johnson, 2 J. P. Metcalf, 331 ; Paiue's Case, 8 Coke's Reports, 34 ; Maddox v, Pratt, MS. opinion, December (Term) 21, 1859. ^ 1. Since this, and the act of 1846, a surviving husband is only entitled to , a life estate in the slaves of the wife, and that whether there be issue of the marriage or not. — Brown v. Alden, 14 Ben. Monroe, 152 ; Hart v. Soward, 14 Ibid. 302 ; Cox v. Coleman, 13 Ben. Monroe, 452 ; Northoutt v. Whipp, 12 Ben. Monroe, 75. 2. The effect of this and the prior act of 1846, upon the rights of the hus- band to the slaves of the wife, is to reduce his estate which before the statute was absolute, down to a mere life estate. But his ,life estate is not conditional or dependent upon there having been issue of the marriage. The slaves of the [615] KENTUCKY. SECTION III. Aftee the death of her husband, the wife shall be endowed for her life of one-third of the real estate whereof he, or any one for his use, was seised of an estate in fee simple at any time dur- ing the coverture,' unless her right to such dower shall have been barred, forfeited, or relinquished. wife descend to her heirs at law, but subject to this life estate of the husband. — Hart «. Soward, 14 Ben. Monroe, 304. 3. A husband, who has conveyed an estate in slaves to a trustee for the separate use and benefit of his wife, is not, upon the death of his wife, entitled to the slaves as the survivor of his wife ; but he had a right to administer on his wife's estate, and as administrator would have been entitled, except as to creditors, to retain the assets without distribution. — Richardson's Adm's v. Spencer Marshall, 18 Ben. Monroe, 463 ; see, also. Cox v. Coleman, 13 Ben. Monroe, 462 ; Brown v. Alden, 14 Ibid. 146. 4. The proceeds of the sale of the wife's land, made by her and her husband, so long as they remain in the hands of the purchaser, constitute a part of her estate, out of which she, in equity. Is entitled to a settlement. — Moore v. Moore, 14 Ben. Monroe, Ky. Rep. 260. ' 1. The widow is to be endowed of one-third of all the lands of which her husband was seised at any time during coverture. — See Northcutt v. Whipp, 12 Ben. Monroe, 73 ; Hickman v. Irvine's Heirs, 3 Dana, 122. 2. Stock in the Lexington and Ohio Railroad Company is real estate, and as such is subject to dower. — Price v. Price's Heirs, 6 Dana, 107. 3. Wherever the husband held land by executory contract and was entitled to a conveyance therefor as his, at his death, and descends to his children or heirs, then his widow is entitled to dower. — Bower v. Vanarsdale, 6 Dana, 204 ; Bailey v. Duncan, 4 Monroe, 263 ; Stevens v. Smith, 4 J. J. Marshall, 67 ; Hamilton v. Hughes, 6 J. J. Marshall, 181 ; Heed and Wife v. Ford, 16 Ben. Monroe, 117 ; GruUy v. Ray, 18 Ben. Monroe, 114. When the husband dies seised of a ferry, the widow should be endowed of one-third of the profits, or of the use of it for the third of the time in alter- nate periods. — Stevens' Heirs v. Stevens, 3 Dana, 373. 4. The widow is not entitled to dower in land to which the husband once only had an equitable title, by bond, and had disposed of that before, and was not beneficially seised at the time of bis death.— Gully v. Ray, 18 Ben. Monroe, 108 ; Heed and Wife v. Ford, 16 Ben. Monroe, 117 ; Hamilton v. Hughes, 6 J. J. Marshall, 582 ; Dean's Heirs v. Mitchell's Heirs, 4 J. J. Marshall, 451 ; Law- son 11. Morton, 6 Dana, 472. 5. The widow of a husband who holds a title bond to land, but who dis- poses of it during the coverture, is not entitled to dower in the land, though the husband may receive a conveyance of the legal title after he has parted with the title bond, for he then held the legal title in trust for his assignee.— Heed and Wife v. Ford, 16 Ben. Monroe, 117 ; Gully v. Ray, 18 Ben. Monroe, 114. [616] CUETESY AND DOWEE. SECTION IV. If the wife voluntarily leaves her husband and lives in adultery, she shall forfeit such right of dower, unless he is after- wards reconciled to her, and lives with her. 6. By the oommon law tlie widow was entitled to dower in those lands only to which the husband had legal title ; hut since the law in respect to trusts has been changed by statute, the widow may have dower whenever the husband has such equity as will authorize the chancellor to decree a conveyance of the legal title to him. — Gtully v. Ray, 18 Ben. Monroe, 113. 7. She is entitled to dower in such equitable estates only as belonged to him at his death. — Ibid. 113. 8. To entitle a widow to dower in lands, the husband must have been bene- ficially seised during the coverture. — Ibid. 114. 9. If the husband sell land before his marriage, either verbal or written, though he does not convey until after the marriage, the widow is not entitled to dower. — Ibid. 114 ; Oldham v. Sale, 1 Ben. Monroe, 77 ; Deans v. Mitchell, 4 J. J. Marshall, 451 ; Gaines v. Gaines, 9 Ben. Monroe, 299. 10. When the husband parts with an equitable title, and with the posses- sion before he obtains the legal title, and afterwards acquires the legal title, he holds it in trust for his vendee, and his widow is not entitled to dower. — Gully w.Ray, 18 Ben. Monroe, 114; Heed and Wife v. Ford, 16 Ben. Monroe, 117. 11. The same doctrine applies when the husband takes a conveyance m fee, and at the same time mortgages the land back to the grantor, or to a third person to secure the purchase money, dower cannot be claimed as against rights under that mortgage. The husband is not deemed sufficiently seised by such an instantaneous passage of the title in and out of him, to entitle his wife to dower as against the mortgage and vendor. — See Stowe v. Tift, 15 Johnson's Rep. 458, and Hollock v. Finney, 4 Mass. Rep. 566 ; Gully v. Ray, 18 Ben. Monroe, 114 ; but see McClure v. Harris, 12 Ben. Monroe, 266 ; and Tevis v. Steele, 3 Monroe, 339. 12. In all cases where the husband is seised of such an estate in land as that the issue of the wife may inherit, if any she have, as heir to the husband, the widow is dowable out of such estate, whether any issue be born to the hus- band or not. (See the many authorities cited). — Northcutt v. Whipp, 12 Ben. Monroe, 73. 13. A widow is not entitled to dower in a life estate, the remainder of which is in her husband, which is not determined during the coverture, and of which her husband was never seised during their coverture. — lb. 67. 14. The mother is entitled to dower in the real estate of an infant which descends to the father during the coverture ; nor is she barred by having pur- chased the land of the grandfather of such infant, supposing him to be the heir. — Renfro's Heirs v. Taylor, 13 Ben. Monroe, 266. 15. And if she be evicted of her dower by a paramount title, she may recover other lands or their value, or have a new assignment, an implied warranty attending such assignment. — Stephens v. Terril, 3 Monroe, 133 ; Singleton's Heirs v. Singleton's Ex'r, 5 Dana, 89. [617] KENTUCKY. SECTION V. The wife shall have dower of real estate, although there may have beau no actual possession, or recovery of possession, by the husband in his lifetime. 16. By the statute of Merton, in case the husband had aliened land, and did not die seised during coverture, damages for the detention of dower were not recoverable. — McElroy v. Wathen, 3 Ben. Monroe, 136. 17. But this rule does not apply when the husband haS not conveyed, and the title descends to his heirs. — lb. 137 ; 5 Johnson Eep. 482 ; Davis v. Logan, 9 Dana, 187. 18. And equity will, in such case, give damages equal to one-third of the value of the rents accruing from the commencement of the suit until decree rendered. — MoElroy v. Wathen, 3 Ben. Monroe, 138 ; Davis v. Logan, 9 Dana, 187 ; Golden v. Maupin, 2 J. J. Marshall, 240 ; Waters v. Gooeh, 6 lb. 589 ; Marshall v. Anderson, 1 Ben. Monroe, 198 ; Gaston's Heirs v. Bates' Heirs, 4 Ben. Monroe, 369. 19. But when husband aliens and conveys during coverture, widow is not entitled to rents even from the commencement of suit. — Marshall v. Anderson, 1 Ben. Monroe, 198 ; Gaston's Heirs v. Bates, 4 Va. 318-9. 20. Neither the widow who is entitled to dower, nor her tenants occupying the mansion-house and premises of the husband, are bound for rents until dower be assigned. — Eenfro v. Taylor, 12 Ben. Monroe, 407. 21. But if the widow abandon the mansion-house and premises, and the heir take the possession, he will not be liable to the widow for the rents, though she might have held the possession had she remained free of rent, until dower had been assigned to her. — Burk's Heirs v. Osborne, 9 Ben. Monroe, 580. 22. And where a widow abandoned the possession, and sued one, holding possession as heir and purchaser under execution, she was permitted to elect to take the use every third year, or one-third of the rents accruing in future, and one-third of the rents that had accrued, she to make her election in court. — Hyzer v. Stoker, 3 Ben. Monroe, 117. ' 23. Dower is not forfeited by the commission of waste, so as to authorize a recovery in ejectment by the reversioner. — Robinson v. Miller, 2 Ben. Monroe, 290. 24. To remove timber prostrated by a tempest is not waste where the timber is valueless, but an amelioration, In which case the technical doctrine of waste practised in England, cannot apply. — Houghton v. Cooper, 6 Ben. Monroe, 283. 25. One of several remaindermen who merely acquiesces in the commission of waste by the tenant for life, does not thereby become liable for such waste to those entitled jointly in remainder. — Houghton v. Cooper, 6 Ben. Monroe, 282. [618] CURTESY AND DOWEE. SECTION VI. The wife shall not be endowed of land sold but not con- veyed by the husband before marriage,^ nor of land sold hona fide after marriage, to satisfy a lien or incumbrance created before marriage, or created by deed in which she joined, or to satisfy a lien for the purchase money.'' But if there is a surplus of the land or proceeds of sale after satisfying the lien, she shall have dower or compensation out of such surplus,' unless the surplus proceeds of sale were received or disposed of by the husband in his lifetime. SECTION VII. A CONVEYANCE or devise of real or personal estate, by way of jointure, may bar the wife's dower; but if made before mar- riage without her consent, or during her infancy, or after mar- riage, she may, within twelve months aftei' her husband's death, waive the jointure by written relinquishment, acknowledged or proved before and left with the Clerk of the County Court, and have her dower," the estate conveyed or devised in lieu thereof, shall determine and revert to the heirs or representatives of the grantor or devisor. SECTION VIII. When the wife is lawfully deprived of her jointure, or any part thereof, and not by any act of her own, she should have ' See notes to section 3, ante, and recent cases of Heed and Wife v. Ford, 16 Ben. Monroe, 117 ; Gully v. Eay, 18 Ibid. 114 ; Hamilton v. Hughes, 6 J. J. Marshall, 582. 2 A vendor's lien i& first to be satisfied. — ^McClure v. Harris, 12 Ben. Monroe, 266 ; Nazareth, &c. v. Low's, 1 Ben. Monroe, 258. 3 See Willet v. Beatty, 12 Ben. Monroe, 174. * Before this, where a contract was a quasi jointure, as between husband and wife for a separation, it being against public policy ; held, it should not be enforced by the chancellor on her bill for that purpose. — MoCrooklin v. MoCrocklin, 2 Ben. Monroe, 370. [619J KENTUCKY. indemnity therefor by way of dower or damages, out of her husband's estate.' • See Yanoy v. Smith, 2 Metoalf, 408, and in Tevis' Ex'r v. MoCreary, MS. Opinion, fall term Court of Appeals, 1860, which will appear in 3 Met- oalf's Rep. This, and the preceding, sec. 7, received a construction by the Court, viz. : Per Duvall, Judge : — We concur in opinion with the Chancellor, that the testator has not mani- fested upon the face of his will any distinct intention that the legacy to his wife should he entitled to a priority of payment to the other legacies ; and it was the well settled general rule, that among legacies in their general nature, there could he no preference, but in case of a deficiency of assets, all must abate proportionally. This rule, however, was applied to thjse legatees who might be called voluntary — as distinguished from those who are purchasers (so called) of their legacies — that is, whose legacies are predicated upon a valuable consideration, as for a debt owing to the testator, or in consideration of the relinquishment of some right or interest, as dower by a widow, &c. — 2 Williams on Ex'rs, 976. By sec. 7 of Art. 4, Revised Statutes, p. 26, it is provided that " a convey- ance or devise of real or personal estate, by way of jointure, may bar the wife's dower;" but if made after marriage, she may waive the jointure by written relinquishment, and have her dower, in which case the estate conveyed or devised in lieu thereof shall determine and revert to the representatives of the grantor or devisor. The next succeeding section is in these words : "When the wife is lawfully deprived of her jointure, or any part thereof, and not by any act of her own, she shall have indemnity therefor by way of dower or damages, out of her husband's estate." The term jointure, as used supra, was obviously intended to designate such estate, whether created by conveyance or devise, as may be settled upon, or transferred to the wife, in lieu of dower. In the case of Yancy v. Smith, 2 Metcalf 's Ky. Rep. 410, it is said that the character of the estate which may bar the wife's right to dower, is clearly defined in that clause of the 7th section, supra, which declares that when the wife demands and receives her dower, the estate conveyed or devised in lieu thereof shall determine and revert to the heirs of the representatives of the grantor or devisor. And " unless the transfer be made in satisfaction of her right to dower, the estate cannot be said to be in lieu of dower. If it be transferred to her without reference to her dower, or without any intention that it shall be in satisfaction thereof, it cannot with any propriety be said to be in lieu of dower." It results, then, that any conveyance or devise of real or personal estate, which is intended by the grantor or devisor to be in lieu of dower, must be deemed a conveyance or devise by way of jointure, within the sense and meaning of these expressions, as used in the statute. Whether the provision for the wife, by deed or will, shall be regarded as having been made in satis- faction of dower, is a question of intention to be determined, in general, upon the face of the instrument. It is not necessary that such provision should be expressly stated to be in lieu of dower ; it wiU be sufficient if it can be clearly [620] CUETESY AND DOWEE. SECTION IX. The wife shall be entitled to one-third of the rents and pro- fits of her husband's dowable real estate, from his death until dower is assigned ;^ and she shall hold the mansion-house and curtilage, without charge therefor, until dower is assigned to her out of the estate devised or descended.'' coUeoted from the instrument that it was so intended. — Bright on Hushand and Wife, 1 vol., pp. 450, 451 ; Worsley's Ex'rs v. Worsley, 16 Ben. Monroe, 469. That the testator, Tevis, intended the provision for his wife in the will under consideration to be in lien of all her interest in his estate, either as dowress or distribntee, does not admit of question. This intention is as apparent upon the face of the will as if it had been declared in terms, and is still more conclusively demonstrated in the paper annexed to the will, containing what are called " directions explanatory" of its provisions, in which he refers to the motives which influenced him in the disposition of his estate, and to the manner in which his intentions were to be carried out. The will, then, presents the case of a devise by way of jointure within the statute. If it does not, we should find it difficult to conceive of a " devise of real or personal estate" to a married woman that would be einbraoed by the terms of the 7th section, supra. Mrs. Tevis, not having waived the jointure in the mode prescribed by law, accepted the provision made for her by the will. If, then, she becomes lawfully deprived of that jointure, or any part thereof, and not by any act of her own, " she shall," in the imperative language of the statute, have indemnity therefor by way of dower or damages out of her hus- band's estate, and that indemnity must be co-extensive with the loss. This construction of the statute is not only justified by its terms and by the object evidently intended to be accomplished by the Legislature, but it is in perfect harmony with the equitable doctrines which the courts of chancery have long since established for the protection of married women. So held in Beard v. Nutthall, 1 Vermont, 427, cited in Newland on Contracts, p. 70. And it is worthy of remark, that the statute of Henry VIII. provides for full indemnity to the wife on being evicted of her jointure, or any part thereof. The judgment of the Chancellor is, therefore, reversed, and the cause re- manded with directions to render a judgment as herein indicated. ' A widow is entitled, until dower is assigned, to the use of the mansion- house and inclosed lands, and woodland for fuel and necessary repairs. — Eoberts v. Commonwealth, 11 Ben. Monroe, 4 ; Driskill v. Hanks, 18 Ben. Monroe, 864. ' 1. See Chaplain v. Simmons, 7 Monroe, 338 ; White v. Clark, 7 Ibid. 641 ; Gary v. Buntain, 4 Bibb, 217. 2. She cannot be dispossessed of the mansion and premises, until dower is assigned. — Stewart's Lessee v. Stewart, 3 J. J. Marshall, 49 ; Burk's Heirs- v. Osborne, 9 Ben. Monroe, 580. [621] KENTUCKY. SECTION X. Whethee the recovery is against the heir, or devisee, or purchaser from the husband, the wife shall be endowed accord- ing to 'the value of the estate when received by the heir and de- visee and purchaser, so as not to include in the estimated value any permanent improvements he has made on the land.^ Against the heir or devisee, or his alienee, her claim for rent shall not exceed five years before suit ; and against a pur- chaser from the husband, shall only be from commencement of suit.'' In either case it shall continue up to final recovery. If after suit be brought, the widow or tenant dies before re- covery, the damages may be recovered by her representative, and against his heirs, devisees, and representative. SECTION XL The wife shall not be barred of dower by reason of any judgment or decree rendered by default or collusion against the husband, if she would be entitled to dower had there been no such judgment^ or decree. Nor shall an heir be bound by any ' See Taylor v. Broderick, 1 Dana, Ey. Eep. 348 ; Wall v. Hill, 7 Dana, 175. 1. And a covenant of general warranty in tlie sale of land is broken by a recovery of dower against the vendee, and the measure of recovery against the vendor is regulated by the value of the dower interest. — Western v. Short, 12 Ben. Monroe, 154 ; Davis v. Logan, 5 Ibid. 341 ; Hill v. Golden, 16 Ibid. 554. 2. For the mode of ascertaining this value, see case of Fasset v. Fleming & al. MS. Opinion, June term, 1856 ; see ante. Sees. 46-7. " See Davis v. Logan, 9 Dana, 187 ; and McElroy v. Wathen, 3 Ben. Mon- roe, 138. ' 1. By the 3d section of an act of Kentucky of 1798 (1 Stat. 582), there is a like provision. And where a tenant, holding the dower interest, permits judgment to go against him for the possession by default, " the heir, or they to whom the reversion belongeth after the death of the tenant" for life, " shall in no wise be injured by such default or surrender," unless the judgment could not have been resisted. — Mills v. Peed, 14 Ben. Monroe, 183. 2. Indeed, in general, the relation of landlord and tenant is destroyed by a judgment of eviction against the tenant by a superior title, even without actual eviction, and the tenant may purchase in the better title for his own protec- tion ; but such is not the case where successful resistance could have been made [622] CUETESY AND DOWER. collusive or ex parte assignment of dower made to her, except so far as she shows herself to have been justly entitled thereto. SECTION XII. Where the lands are not severally held by different devisees or purchasers, it shall not be necessary to assign dower out of each separate portion, but an equitable allotment may be made in one or more parcels in lieu of the whole.' SECTION XIII. If the husband held land by executory contract only, the wife shall not be endowed of the land, unless he owned such equitable right at his death. SECTION XIV. Where any real estate or slave is conveyed or devised to husband and tmfe,^ unless a right by survivorship is expressly to the recovery, or the tenant has neglected to give to his landlord notice of the suit for possession. — Ibid. 182. 3. The entry of one joint owner upon land enures to the benefit of all the joint owners ; and such a possession is not adverse to the right of the other join* owners, and will not become so unless accompanied by some open public act denying their right, of which they are informed. — Gossom v. Donaldson, 18 Ben. Monroe, Ky. Eep. 230 ; see, also. Farrow v. Edmonson, 4 Ben. Monroe, Ky. Rep. 607. ' So held in Marshal v. Anderson, 1 Ben. Monroe, 198. ' 1. This repeals and changes the pre-existing law as ruled in Rogers v. Gri- der, 1 Dana, Ky. Eep. 243 ; lb. 35 ; and Hairding v. Springer, 14 Maine, 407 ; Draper v. Jackson, 16 Mass. Rep. 480 ; Shaw v. Hearsey, 5 Massachusetts, 521 ; See also Analytical Index, Chapter vi., 1 Washburn, 425. 2. That the conveyance of an estate to husband and wife does not make them joint tenants; they have a tenancy by entireties; neither can alienate the estate, or any share of it, and upon the death of either, the whole belongs to the survivor ; the Kentucky statute abolishing the jus accrescendi not embrac- ing this description of estate, as held in Rogers v. Grider, 1 Dana, Ky. Eep. 243 ; Eoss v. Garrison, lb. 37. 3. And the remedy for the survivor of husband and wife to recover an estate conveyed to them during the coverture, is complete at law. Equity has no jurisdiction. — Eogers v. Grider, 1 Dana, 244. 4. A conveyance to husband and wife, is in legal construction a oonvey- [623] KENTUCKY. provided for, there shall be no mutual right to the entirety by survivorship between them ; but they shall take as tenants in common, and the respective moieties be subject to curtesy or dower, with all other incidents to such a tenancy. SECTION XV. A DIVORCE hars all claim to curtesy' or dower.^ SECTION XVI. If any stock in any of the banks or other corporations of this State is taken for or transferred to any female, and it is expressed on the face of the certificate or transfer book of such stock that it is for the exclusive use of such female for her annual support, no husband she then has, or may thereafter have, shall take any interest in such stock or the dividends thereon ; but, if unmarried, she may dispose of it by will, or, if married, so dispose of it with the consent of her husband, or without such consent, if so provided in the deed or will creat- ing the trust. She may also receive the dividends, and give acquittances therefor, though unmarried ; but she shall not in any way anti- cipate the same ; nor shall any dividend be paid upon any order, or power given by her before the same is declared. SECTION XVII. If real or personal estate be hereafter conveyed or devised for the separate use of a married woman, or for that of an un- married woman, to the exclusion of any husband she may ance to but one person. For, if an estate be conveyed expressly in joint tenancy to husband and wife and to a stranger, the latter shall take one moiety, and the husband and wife, as one person, shall take the other moiety. See Cases, supra. ' In Oldham r. Henderson, 5 Dana, 257, it was held, that a divorce termi- nated the husband's estate or interest in the wife's land, and that he could not assign the rents thereof, or longer enjoy them. * See notes to that head, "What Bars Dower." [624 J CURTESY AND DOWER. thereafter have, she shall not alienate such estate with or with- out the consent of any husband she may have; but may do so when it is a gift, by the consent of the donor or his personal representative. Such estates, heretofore created, shall not be sold or encum- bered, but by order of a court of equity, and only for the pur- pose of exchange and reinvestment, for the same use as that of the original conveyance or devise, and the court shall see that the exchange or reinvestment is properly made. Nor, be construed to forbid the alienation of the separate property of a married woman, whether such estates were created before or since first Of July, 1852, by a trustee under the express power in the will or deed creating such estates.' Nor, shall not apply to conveyances made before the first of July, 1852, in which powers of sale and exchange are expressly given ; but such powers may be executed according to the in- tention of the deed notwithstanding.^ Such estates shall not be sold or encumbered.^ ' So amended and approved, February 16, 1858. ^ So amended and approred, March 3, 1856 ; and see as to this amendment, Williamson v. Williamson, 18 Ben. Monroe, Ky. Rep. 386 ; Sees. 362-3, anterior. ^ 1. See Daniel v. Robinson, 18 Ben. Monroe, 306 ; Williamson v. William- son, lb. 384; Stuart v. Wilder, 17 Ben. Monroe, 58. 2. This provision fetters the powers of married women to alienate their separate estates before it even took effect (on the 1st July, 1852), and may have the effect of limiting their expenditures to an outlay of the profits merely as they may accrue. — Daniel v. Robinson, 18 Ben. Monroe, 301. See also L. Amoroux v. Vanransalaer, 1 Barbour, New York Chancery, 34 & 35 ; Rogers V. Ludlow, 3 Sanford , 104 to 109. 3. Such a restriction may be considered severe in some cases ; but, from the words of the statute, no room is left to doubt that such was the intention of the legislature, and such now the law of Kentucky. — lb. 306. 4. The terms of prohibition are general as to, and embracing all, separate estates. 5. Now, this provision in the Revised Statutes was enacted, not only to protect the rights of married women by securing their separate estates against their own improvidence, as well as all improper influences which might be attempted to be exercised over them, but also more effectually to secure the attainment of the object of the donor in their creation. Instead of depriving married women of any of their rights in their separate estate, it tends to secure them in the possession and enjoyment of them. The power to violate the instrument creating her estate, and to make a disposition of the property embraced by it inconsistent with and calculated to defeat the evident intention 40 [ 625 ] KENTUCKY. The court ordering a sale of a married woman's lands or slaves,^ shall cause the proceeds of the same to be reinvested in of the donor in making her the object of his bounty, cannot be regarded as such a vested right in a married woman as to place it beyond legislative con- trol or regulation. Indeed, the existence of such a power was only recognized in a court of equity, and thd propriety of permitting its exercise, unless it was expressly conferred by the instrument which created the estate, has been fre- quently .questioned by the most enlightened chancellors. Married women can still sell and convey their separate estate ; but it must be done as prescribed by this section of the statute (and not otherwise), and under the superintendence of a court of equity, where created before the 1st July, 1852 ; and the proceeds must be invested for the same use as that con- tained in the conveyance or devise by which the separate estate was originally created. The mode in which the sale and conveyance are to be made is varied ; but the restriction is entirely consistent with the nature of the estate, and its operation is evidently advantageous to the owners of such property, Viy securing them in the continued enjoyment of it. As the proceeds of a sale be made, are required to be reinvested foi: the separate use of the wife, she is thereby guarded against that influence to which her condition naturally sub- jects her, and which it is almost impossible for her to resist by the withdrawal of all temptation for its exercise. 6. And as it deprives them of no right in their separate estate, there is no doubt of the power of the legislature to enact it, as the mode of translating property from one individual to another is a matter pertaining to its power and duty. — Williamson v. Williamson, 18 Ben. Monroe, 384. 7. It having been decided prior to this by the Court of Appeals of Kentucky, that a, feme covert might join her husband, and convey even her separate estate, though a trustee Intervened, without his assent. — Shipp v. Bowmar, 5 Ben. Monroe, 167; Johnson's Trustees v. Yates, 9 Dana, 500; Whitaker v. Blair, 3 J. J. Marshall, 241 ; Hall v. Nelson, 3 Littel, 395. 8. A radical change in the pre-existing law, as ruled in those oases, has been effected by this new statutory provision as to all of her separate estate. The change was made to protect this description generally conveyed to a woman, to secure her against want, from the operation of those influences (undue, fraudulent, or otherwise) which might be brought to bear upon her to induce her to sell, dispose of, and convey it. And while oases might occur, where the exercise of such power of alienation as recognized by those cases, might be exercised advantageously, yet, in its general operation, the exer- cise of such a, power, more frequently than otherwise, resulted in the total waste and dissipation of the estate. It thus seems to have been the intention of the Kentucky legislature, therefore, to secure her in the enjoyment of it during her life, or coverture, by thus depriving her of the power to alienate her separate estate, and the prohibition embraces all of her separate estate. But she may, however, if it be a gift to her, convey, by the 20th and 21st ' Sec. IV. of Article VI. Chapter 86, Revised Stat. 1852, page 394 ; 2 vol. Staunton's Revision, 311. [ 626 ] CUETEST AND DOWEB. lands or slaves in or out of this State, subject to the same ttses, limitations, and trusts as the lands or slaves sold were held.' sections Kentucky Eevised Statutes, of Conveyances, page 199, by the consent of the donor, or his or her personal representatives only, where the estate has been created since the 1st July, 1852. — Stewart v. Wilder, 17 Ben. Monroe, 59. See also Daniel v. Robinson, 18 Ben. Monroe, 301 ; Williamson v. Williamson, lb. 384 ; Stone et al. v. Guthrie et al. , 2 J. P. Metcalfe, and note paste, 9. The statute having thus circumscribed and restricted the power of the husband and wife to convey her separate estate ; hence, he could not bind it by a mortgage. — Stewart v. Wilder, 17 Ben. Monroe, 60. 10. But may still bind her general property by a legal conveyance, under sections 20 & 21 Ky. Rev. Stat. 199.— Smith v. Wilson, 2 J. P. Metcalf, 235. 11. Where the creditor brought suit against the trustee of the wife to sub- ject property conveyed to him in trust for the use, benefit, and support of the wife and her children, and to permit her and her children to use, possess, and enjoy every part and parcel of the property, and to be controlled by her for her comfort and support, and for the support and education of her children ; in fact, the whole control and management of the property was thus conferred upon her, to the entire exclusion of her husband ; to subject this property for debts created by her in the purchase of goods for the use of her family, and for which she and her husband had executed their notes, expressing upon their face the consideration, and the Circuit Court subjected the hire and rent to pay the same ; it was held, on appeal, under the revised statutes, it being the separate estate of the wife, she and her husband could not charge or encumber it in any way. Because, if it be a separate estate, as distinguished from that estate which the wife acquires in lands descended, and in slaves by way of distribution, or by a conveyance in general terms, then, under the provisions of the revised statutes, she had no power to charge or incumber it in any manner ; and as the deed does not confer such a power, the case is not embraced in the amendatory act on the subject. Every trust estate created for the use and benefit of the wife, is not a sepa- rate estate ; but, it must also clearly appear, that the intention of the gift was that it should be for the wife's separate enjoyment. The provision in the revised statutes, concerning estates held in trust, has no application to separate estates, which are something more than mere trust estates. It only applies to estates that are, properly speaking, trust estates. A separate estate is peculiar in its character, and can only belong to a married woman, although it may be created previous to her marriage. The trust estates referred to in the act, are those that may belong to any person what- ever. Nor has the provision of the revised statutes, which renders the real estate and slaves of the wife liable for such debts and liabilities, contracted on account of necessaries for herself and family, as may be evidenced by writing ' For the necessary steps and proceedings to effect this change by order of a Court of Equity. — See Article 5, Chapter 86, Ky. Rev. Statutes, 2 vol. Staun- ton's Revision, page 308 ; Sec. V. Article VI. [627] KENTUOEY, The descent or distribution of the proceeds, or of the property signed by her and lier husband, any application to her separate estate. That provision relates to the wife's general property, as contradistinguished from her separate estate. The same chapter contains the provisions relating to her separate estate, which are wholly inconsistent with those concerning her other and general property, by which it clearly appears that a distinction between them was intended to be made and observed. — Stone and Others v. Tombs and Others, 2 J. P. Metcalf s Ky. Rep. 520. 12. Her general property can only be rendered liable in the way designated by that section of the statute providing for it ; the two estates, her separate estate and her general property (in the latter of which the husband has certain well-defined marital rights) are entirely different. — Lillard v. Turner, 16 Ben. Monroe, 376. 13. The separate estate of a married woman has that property imparted to it by the instrument or manner of creating it, and is that alone of which she has the exclusive control, use, or benefit, independent of her husband, and the proceeds of which she may dispose of as she pleases, but for the statute.— Petty V. Malier, 14 Ben. Monroe, 247 ; Johnson and wife v. Green, 17 Ben. Monroe. 14. All of her real estate, descended or devised, is not her separate estate, but is her general property, subject to the marital rights of her husband, as provided in the 1st section, page — . 15. The right which she acquires to property, under the operation of that section, to be protected in her general property, does not confer upon her the rights incidental to a separate estate in its legal acceptation.— Johnson v. Jones, 12 Ben. Monroe, 329 ; Lillard v. Turner, 16 Ben. Monroe, 376. 16. Where there is a general property, such as that by descent, devised generally, or conveyed by an ordinary deed of conveyance, not indicating a separate estate, the husband has certain well-defined marital rights vesting in him.— Burgin t,. Forsythe, 17 Ben. Monroe, 555 ; Petty v. Malier, 14 Ben. Monroe, 247. 17. A devise of rents and profits of lands for the separate and sole use of the devisee during her natural life is, in substance and effect, an appropriation of the land itself, and is a separate estate, and embraced by this statute, and the devisee has no power to convey or charge it. — Williamson v. Williamson, 18 Ben. Monroe, 383. 18. The provision of the Kentucky Revised Statutes, sections 20 & 21, page 199, authorizing a married woman to convey any real and personal estate which she may own (by joint deed, or by the separate deed of the wife, when the husband has theretofore conveyed, but even then to the same person), applies alone to their general property, as contradistinguished from that in which she may have a separate es«a«e.— Smith v. Wilson, 2 J. P. Metcalf, 235. 19. And a mortgage by the husband of his interest in the estate of his wife, was held not to be such a conveyance as is contemplated by the 20th section, page 199, Revised Statutes.— Stuart v. Wilder, 17 Ben. Monroe, 60. 20. This section (17th) is the only provision which puts any restriction upon the alienation of estates of married women as allowed generally by the 20th Section of Conveyances, page 199, Ky. Revised Statutes of 1st July, 1852, [628] CURTESY AND DOWEH. in which the proceeds of lands' or slaves sold under any decree of court is invested, shall not be changed from what would have and it lias no application to and cannot affect the right or power of a married woman to convey her legal or equitable interest in her general property, in the mode thxis prescribed by the statute. — Smith v. Wilson, 2 J. P. Metcalf, 237. 21. Article 2, page 387 of the same chapter, which defines and limits the marital rights of husband and wife with respect to the property of each, and ex- empts the real estate and slaves of the wife from the husband's debts, was not intended to qualify or alter the power given her, in said sec. 20, page 199, to convey her general property by deed. — Ibid. 22. Married women may still dispose of their separate estate where creaied before 1st of July, 1852, by order of a court of equity, as therein provided, and where created since, then by consent of the donor or his personal representa- tive. — Daniel v. Robinson, 18 Ben. Monroe, 301 ; Williamson v. Williamson, 18 Ibid. 385. 23. The Kentucky statutes authorizing husband and wife to execute deeds of conveyance, prior to the act of 1846, relate exclusively to real estate ; and, therefore, a deed executed in 1840, by husband and wife transferring to the grantee their reversionary interest in the slaves of the wife, is not effectual for that purpose, though acknowledged by her, and recorded. — Lynn v, Bradley, 1 J. P. Metcalf, 234 ; see, also, Hord v. Hord, 5 Ben. Monroe, 81 ; Wright v. Arnold, 14 Ben. Monroe, 638. ' See as to conversion in equity, Samuels v. Samuels' Adm'r, 4 B. Monroe, 253 ; Collins v. Champ's Heirs, 15 B. Monroe, 119 ; Loughborough v. Lough- borough, 14 B. Monroe, 550. 1. The character of the fund in case of a deed is fixed from its date, in case of a will from the death of a testator, and it is treated as converted from those periods. — Loughborough v. Loughborough, 14 B. Monroe, 550. 2. The equitable doctrine that money, which is directed by will to be con- verted into land, is to be treated as land, and land directed to be converted into money, and so treated in the distribution, though most usually applied to devises, is equally applicable to cases of deeds. — Loughborough v. Lough- borough, 14 B. Monroe, 550. 3. It is a well-established doctrine that money directed to be employed in the purchase of land, and land directed to be converted into money, are to be considered and treated as that species of property into which they are directed to be converted, and so treated in the distribution of estates, without regard to the manner in which the direction is given, whether by will, marriage contract, settlement, or otherwise. — Collins v. Champ's Heirs, 15 B. Monroe, 118. 4. A vendor and assignor having purchased with full knowledge of an out- standing lien, and conveyed to an innocent purchaser without notice of the in- solvency of the obligor, was liable in equity, to the assignee, in case of the insolvency of obligor as for a conversion in equity. — Cox v. Cates, 13 Ben. Monroe, 375 ; S. P. Wilson v. Wilson, 9 Ben. Monroe. 5. And in cases of fraud the grantee is chargeable to creditors as for a con- version in equity. — Halbert v. Grant, 4 Monroe, 585. [629] KENTUCKY. been the course of descent or distribution if no sale had been decreed or made. A married woman may, by will, dispose of any estate secured to her separate use by deed or devise, or in the exercise of a special power to that effect.^ 24. The husband and wife cannot make any contract with third persons, during the coverture, disposing of the expectancies of the wife, which will he bind- ing on her after the death of her husband. — Hardin and Wife v. Smith's Ex., 7 Ben. Monroe, 392. 25. In Jones v. Johnson and Wife, 12 Ben. Monroe, Ky. Eep. 331-2, if was held that a wife cannot make an executory contract either for the purchase of land, or the sale of lands, that will be obligatory upon her. She cannot sell or dispose of her slaves except in the manner authorized by law ; which must be by deed executed by her and her husband, and acknowledged before the proper officer in conformity with the requisites of the law, in reference to the conveyance of the lands of the wife. In relation to her esiaie, her general pro- perty, she is not placed in a court of equity eyen upon the same footing of a married woman who is the owner of a separate estate in fact. She has not the same power over her estate (her general property) that a married woman has (had, prior to 1st July, 1852, before the 17th sec. was enacted) over her sepa- rate estate. She can make no disposition of it unless it be done in connection with her husband, and then only in the mode pointed out by law. But in the case of separate estate, the wife can act in her own name alone, in- dependently of her husband, and can make contracts within the scope of her power over the property, which will be obligatory upon her, and equity will enforce it. So, where a married woman had estate — general property — not a separate estate in fact, the executory contract she made for the purchase of a farm can- not be specifically enforced against her in personam, or by a lien on her general property, the bond for the purchase money cannot be enforced, nor can her estate (her general property) be rendered liable for its payment. Her slaves — her general property, can only be made liable under the statute for necessaries, even, as and in the manner it prescribes. • 1. Her separate estate is that alone of which she has the exclusive control, independent of her husband, and the proceeds of which she may dispose of as she pleases. — Petty v. Malier, 14 B. Monroe, 247. It is one that she has such dominion over as to exclude the marital rights of the husband. — American Home Mission v. Wadhams, 10 Barber, 601. No particular form of words is necessary to create it, any words importing such independency on the part of the wife making it her own to all intents and purposes as a, feme sole. — See Heathy w. Thomas, 15 Vesey, 596, 602 ; American Home Mission v. Wadham, 10 Barber, 601 ; see notes to Section 17, Art. IV. Chapter XLII., Rev. Stat. 395, and in this Appendix. 2, To establish in evidence the will of a married woman made in execution of a power of appointment, probate of it was necessary in England, and is so here, in order to confirm judicially its testamentary nature ; and such an ap- [630] CURTESY AND DOWER. SECTION XX. " Married women may convey any real or personal estate which they own, or in which they have an interest legal or equitable, in possession, reversion, or remainder.'" pointment cannot he made availaUe at law or in equity without probate. — American Home Mission v. Wadham, 10 Barber, 606 ; Molly Yates' Will, 2 Dana, 216 ; PrisoiUa Kelly's Will, 5 B. Monroe, 3Y3. 3. By the common law a married woman could not dispose of her legal estate in lands without ajine or recovery, and by the statute of wills she was expressly prohibited from devising her lands; but as the instrument, agent, or attorney of another, she could, both before the statutes and since, convey an estate in the same manner and as effectually as the principal, because the conveyance was regarded as the deed of the principal and not of the attorney. — Wadham v. Am. Home Mission, 2 Kenian, 422 ; see 1 Sugden on Powers, 184 ; Thompson v. Dighton, 1 Peer Wms. 149. Though the statute 34 and 35 Henry VIII. excepted married women, it was there held that she could make a valid disposition of personal property by will with the assent of her husband, or without such assent dispose of such per- sonal property as she held to her separate use, and that she could under a power of appointment dispose of both real and personal property. — George (of color) V. Bussing, &c., 15 B. Monroe, 364. A wife may dispose of her separate estate by wiU, and may make a will in pursuance of a power for that purpose. She may, with the assent of her hus- band, dispose of her personal estate. The grant of such a power is implied from his consent that she may make a will. A general assent is sufficient ; this consent should be given to the probate, because he may revoke his con- sent during the life of the wife, or at any time before probate. When a will is made with express consent of the husband, very little proof will be required to show the continuance of the consent. — George (of color) v. Bussing, 15 B. Monroe, 363. The statute of wills applies only to real estate, and though it does not confer on a feme covert the power to devise real estate, it has never been held to pre- vent her from devising real estate under a power of appointment. — George (of color) V. Bussing, 15 B. Monroe, 363. ' From Ky. Revised Stat, page 199. See Sees. 413, 414, ante. 1. This provision applies alone to the general property of married women, as contradistinguished from that in which the wife may have a separate estate, in which view the several provisions of the Revised Statutes are not in con- flict. — Stuart V. Wilder, 17 Ben. Monroe, 59. 2. By this section married women can still sell and convey their general property/. This section is comprehensive enough to embrace every conceivable interest or right which a married woman may have in property, real or per- sonal, and every kind of conveyance "by deed. A deed of trust or mortgage, either is a conveyance by deed in the legal sense of that phrase in the statute. Smith V. Wilson, 2 .T. P. Metoalf, 237. [631 J KENTUCKY. SECTION XXI. The conveyance may be by the joint deed of husband and wife, or by separate instrument, but in the latter case the hus- band must first convey or have theretofore conveyed. The deed as to the husband may be acknowledged or proved and recorded as provided for in the preceding sections. SECTION XXII. A DEED of a married woman to be effectual, shall be acknow- ledged before some of the oflBcers named in the preceding sec- tions, and recorded in the proper oflSce. Previous to such 3. And this power is not restricted ty section 17. — Ibid. 4. Under similar provisions in the prior statutes of 1796, 1 Morehead and Brown, section 4, page 440, as decided in Scarhorough u. Watkins, 9 Ben. Monroe, 544, and Todd's Heirs v. Wickiffe, 18 Ben. Monroe, 907. Held that the provisions thereof are sufficiently comprehensive to empower a married woman to make a deed of any description, not merely a deed of bargain and sale founded upon a valuable consideration, but a deed of gift or of mort- gage, or a release, or a deed of conveyance for any purpose whatever, declaring them to be as effectual to pass all her right as if she was an unmarried woman. —Smith V. Wilson, 2 J. P. Metoalf, 237. 5. Therefore, if she had joined with her husband in an absolute deed to pay a debt, instead merely of securing it by a mortgage on the same estate, certainly a court of equity would not interpose to set it aside upon the ground that it was in fact exempt by law from liability for her husband's debts, if she voluntarily executed it in the form prescribed by law. — Smith v. Wilson, 2 J. P. Metcalf, 237. 6. Mr. Justice Story (Equity, page 617) says that " a married woman is disabled from making any contract respecting her real property, either to bind herself or to bind her heirs, and that this disability can be overcome only by adopting the precise means allowed by law to dispose of her real estate, as in England by a fine, and in America by a solemn conveyance by deed and privy acknowledgment by their enabling statutes." — Moore v. Moore, 12 Ben. Monroe, 665. 7. If a deed be properly certified to pass the title of a feme covert, and lodged by the grantee in the proper office in due time, it is effectual for all the purposes of a recorded instrument, even against a feme covert grantor, though neither the deed nor certificate be recorded ; and if a deed be in fact recorded in due time, though the certificate remains unrecorded, it effectually hinds the/eme.— Gedges and Wife v. Wes. Bab. Theo., 13 Ben. Monroe, 535. 8. But where she joins with her husband, it is merely a permission to her to sell her estate, and she is not hound by any covenant therein. — Falmouth Bridge Co. .;. Tibbatts, 16 Ben. Monroe, 637. [682] CURTESY AND DOWER. acknowledgment, it shall be the duty of the officer to explain to her the contents and effect of the deed, separately and apart from her husband ; and thereupon, if she freely and voluntarily acknowledge the same, and is willing for it to be recorded, the officer shall certify the same, as follows : — 1st. Where the acknowledgment shall be taken by an officer of this State, he shall simply certify that it was acknowledged before him, and when it was done, which shall be evidence that she had been examined separately and apart from her husband, and the contents explained to her, and that she had voluntarily acknowledged the instrument, and consented that it should be i'ecorded. 2d. Where the acknowledgment shall be taken by an officer residing out of this State, the same shall be acknowledged and certified, to the effect as follows : — Commonwealth of Fleming County, set. I, A. B. (here give the title), do certify that this instrument of writing from C. D. and wife E. F. (or from E. F. and wife to 0. D.) was duly produced to me by the parties, and the contents and effect of the instrument being explained to the said E. F. by me, separately and apart from her husband, she there- upon declared that she did freely and voluntarily execute and deliver the same, to be her act and deed, and consented that the same might be recorded. Given under my hand and seal of office. A, B. 3d. If the husband join in the deed with his wife, and ac- knowledge it before the same officer, his acknowledgment may be certified with that of his wife, immediately succeeding the word " parties," thus : " acknowledged by the said 0. D. to be his act and deed." SECTION XXIII. Where deeds have been or may be legally executed, but not recorded or lodged for record in proper time, such deeds may be proved, acknowledged, and recorded, and be as effectual from the time of so recording as if recorded in proper time. This section shall not apply to the deed of a married woman, unless reacknowledged by her, and recorded thereafter in the proper time. [633] KENTUCKY. SECTION XXIV. The clerk of each county court shall record all instruments of writing, embraced in any sections of this chapter, which shall be lodged for record properly certified, or which shall be ac- knowledged or proved before him as required by law. He shall also record the certificates indorsed upon the same, and shall certify the time when the instrument was lodged in his ofiBce for record. If acknowledged or proved before him, he shall also certify the time of doing the' same, and by whom proved, and that the instrument and the certificates thereon have been duly recorded in his ofBce. DIVORCE AND ALIMONY.' SECTION I. The courts having chancery jurisdiction may decree a divorce for any of the following causes, to both husband and wife : — 1st. Such impotency^ or malformation as presents sexual in- tercourse. 2d. Living separately and apart without any cohabitation for the space of five consecutive years next before the application.'' ' Article III., see 2 vol. Stanton's Ky. Revision, page 17. ^ For a complete treatise of tlie law, evidence, and peculiar practice of the court under this head as to physical impotence, see Bishop on Marriage and Divorce, Sections 225 and 267 ; Stibbins v. Stibbins, 1 J. P. Metcalf, 477. * 1. It was not intended that husband and wife, who might have lived sepa- . lately and apart, without cohabitation, for five consecutive years, in -another State or country, might come to this State and obtain a divorce on that ground. The plaintiff will only be entitled to a divorce on this ground when she shall have resided in this State the length of time mentioned, and under the circum- stances referred to in this section of the statute. — Becket i'. Becket, 17 B. Monroe, 374. 2. Where appellant and his wife separated in Pennsylvania, in 1843. He moved to Kentucky in 1844, and has continued to reside here separate and apart from his wife, she being in the meanwhile in Pennsylvania. Thus the whole period of five (5) consecutive years, separate and apart, has transpired in this State. This case presents, for the first time to this court, the question whether "living separate and apart, without any cohabitation, for the space of five years next before the application," will per se, entitle either husband [634] DIVOECE AND ALIMONY. Also to the patty not in fault for the following causes: — 1st. Abandonment or like separation by one party from the other fot- one year. 2d. Abandonment or living in adultery with another man or woman for six months.^ 3d. Condemnation for felony in or out of this State.'' 4th. Concealment from the other party of any loathsome dis- ease existing at ike time of marriage, or contracting such after- wards.' 5th. Force, duress, or fraud, in obtaining the marriage.'' 6th. Uniting with any religious society whose creed and rules require a renunciation of the marriage covenants, or forbid hus- band and wife from cohabiting. or wife, or both, to a divorce. Held, tliat a cause for divorce has arisen in this State ; and, without any reference to the laws of Pennsylvania upon the alleged abandonment there, the appellant seems to have brought himself within the provisions of this section of the statute, and is entitled to a divorce. — Smith V. Smith, MS. Opinion, January, 1855. 3. Under this clause giving to the party not in fault a divorce for " abandon- ment, 01" like separation by one party from the other, for one year," there must be the act of separation, as well as living separately and apart without cohabi- tation for one year, and this act must be done in this State (Ky.) to aiithorize a divorce to the party from whom the act of separation takes place. — Beoket ». Becket, 17 Ben. Monroe, 374. ' 1. As to adultery, see Bishop on M. and D., section 375. And where the husband has misbehaved, abandoned, and ill treated his wife, so as to justify a divorce or separation, the wife's property in action, and it seems, also, even property not under the jurisdiction of the court, will be laid hold of by the Court of Chancery and appropriated to the support of the wife and her child- ren. — See note, 1 Hare & Wallace, Leading Cases, 385. 2. Until the prior statute of 1800, abandonment alone was not sufficient cause for a divorce a mensa et thoro, and for alimony. — Logan v. Logan, 2 B. Monroe, 144. ^ 1. In case of conviction for felony wife was not entitled to dower but alimony only under the act of 1802.— 2 Stat. Law, M. & B. 1309 ; Wooldridge V. Lucas, 7 B.-Monroe, 56. 2. A husband leaving his dwelling jlrofeasedly, with the intention to remain away and not living with his wife, and his returning again on her leaving, is abandonment, statutory and actual. — ^Logan v, Logan, 2 B. Monroe, 145. ' See Bishop M. & D., sections 440(i to 442. * For the general principles of law regulating fraud, error, and duress, see Bishop on Marriage and Divorce, Chapter VI. Sections 98a to 123, pages 92 to 116. [635] KENTTTCKY, Also to the wife when not in like fault, for the following causes : — 1st. Confirmed drunkenness on the part of the husband of not less than one year's duration, accompanied with a wasting of his estate, and without any suitable provision for the mainte- nance of his wife and children.' 2d. Habitually behaving towards her by the husband for not less than six months in such an inhuman manner as to indicate a settled aversion to her, and to destroy permanently her peace and happiness.^ ' 1. Where the wife alleged and proved that the hushand had no estate, has been for years dependent upon the lahor of herself and children for a sup- port, has made no suitable provision for their maintenance, and is and has been for several years a common drunkard. By a liberal construction, the words " wasting his estate," where he has no property, should be deemed to apply to and embrace a man's health, time, and labor, all of which, for the purpose of supporting his family, are essentially his estate. — McKay v. McKay, 18 Ben. Monroe, 8. 2. When the husband's conduct towards the wife is such an habitual course of persecution as to render the bands of matrimony a place of wretchedness and degradation, she may leave him and have alimony. — Mayhugh v. May- hugh, 7 B. Monroe, 430 ; see also Finley v. Finley, 9 Dana, 52. 3. In arriving at a conclusion as to the degree of fault in contests between husband and wife, in order to determine the right of the wife to separate from the husband and claim alimony, the court must look as well to the provoca- tion on the one hand as the reciprocal duties of the husband and wife to each other.— Ibid. 428. 4. Ideal perfection is not the rule of decision in human tribunals, but the standard of excellence which is attainable by the various classes to which it may be applied. — Ibid. 2 1. Thisisnot confined to mere personaZ or 6o(Zt7)/ injuries, but itmayconsist of any act or acts indicating a settled aversion to her, and the destruction of her peace and happiness. — Woodward v. Woodward, MS. Opinion, Sept., 1858. 2. See Mayhugh v. Mayhugh, 7 Ben. Monroe, 430 (in the preceding page 234). ■ 3. Violent, scandalous conduct of a husband, when drunk, towards a wife of unexceptionable deportment, though he is good natured and kind when sober, is sufficient cause for a divorce a mensa et thoro, and alimony. — Loch- ridge V. Lochridge, 3 Dana, 28. 4. Courts of Chancery in this country, like Ecclesiastical Courts in England, grant divorces a mensa et thoro, and decree alimony to wives cruelly treated by their husbands. — Ibid. 5. That the husband is, through intemperance, sometimes boisterous, pro- fane, and vulgar, is not sufficient ground for granting a divorce to the wife, unless his conduct is such that there is reasonable ground to believe that her life is endangered. — Boggess v. Boggess, 4 Dana, 308. [636] DIVORCE AND ALIMONY. '' 3d. Such cruel beating or injury, or attempt at injury of the wife by the husband as to indicate an outrageous ungovernable temper in him, and probable danger to her life, or great bodily injury, from her remaining with him.' Also to the husband for the following causes : — 1st. When the wife is pregnant by another man without the husband's knowledge at the time of marriage.' 2d. Adultery committed by the wife, or such lascivious be- havior on her part as proves her to be unchaste, without actual proof of a specific act of adultery.' SECTION II. No decree of divorce shall authorize or permit the party ob- taining it to marry again until one year'' after final decree, ex- cept where it is herein allowed both parties ; nor shall the party against whom the decree is rendered, marry again in less than five years thereafter. An earlier marriage than is herein allowed ' 1. She is not entitled to a divorce for corporal mistreatment unless her life be endangered. — Thornberry v. Thomberry, 2 J. J. Marshall, 322 ; Finly v. Finly, 9 Dana, 52; Mayhugh v. Mayhugh, 1 Ben. Monroe, 430; see Bishop on Marriage and Dirorce as to the general doctrine of cruelty, &c., sections 455 to 494, where it is fully and ably treated in all its phases. 2. The cruel, inhuman, and barbarous treatment, which will justify a wife in separating from her husband, and entitle her to a decree for alimony, either by the canon law, adopted as the law of England, or by the statute, is such only as exposes her person or health to danger. — Finly v. Finly, 9 Dana, 52. 3. An assault, or stroke, or slap, or slaps with the hand, on a single occa- sion, or occasional petulance of temper, rudeness of language, or sallies of pas- sion, that do not threaten bodily injury or expose her person or health to danger, cannot be deemed sufficient to constitute cruel, inhuman, and barbarous treatment. — Finly u. Finly, 9 Dana, 58 ; see also Barrere v. Barrere, 4 Johnson's Chy. Kep. 187 ; 2 Kent's Com. 126. 4. The cases propter savitiam in the canon law, justifying a separation, have not been enlarged by statute. — Ibid. 53. ' See section 105, Bishop on Marriage and Divorce. ' Where a wife, in the society of others, treats her husband with absolute contempt, and shows a preference for and courts the company of other men, and against his remonstrances abandons him for one year, the husband is en- titled to a divorce. — Watkins v. Watkins, 12 Ben. Monroe, 211. * Before this, under the prior law (1 Statute, 128), one who had been divorced by a decree of the chancellor, could not lawfully marry within two years. — See Cox and Wife v. Combs, 8 Ben. Monroe, Ky. Eep. 231 ; see amendment, posterior, [637] KENTUCKY. shall subject the party entering into it to all the penalties pre- scribed by law against bigamy. SECTION III. The defendant may answer a bill for divorce without oath ; and no such bill shall be taken for confessed or be sustained by the admissions of the defendant alone, but must be supported by other proof. Two witnesses, or one, and strong corroborat- ing circumstances, shall be necessary to sustain the charge of adultery or lewdness.^ The credibility or good character of such witnesses must be personally hnown to the judge, or to the officer taking the deposition, who shall so certify, or it must be proved by some witness who is so haown} It shall be the duty of the attorney of the commonwealth to resist every application for a divorce; and if successful in defeating it, he shall be allowed a fee of five dollars, to be paid by the husband, which he may be compelled to pay by attachment. SECTION IV. Suit for divorce must be brought in the county where the wife usually resides, if she has a residence in the State ; if not, then in the county of the husband's residence ; and no such suit shall be brought by one who has not been a continual resident of this State for a year next before its institution. Nor, unless ' 1. It is only as to the charge of "lewdness or adultery" that "two wit- nesses, or one and strong corroborating cironmstances," shall he necessary to sustain the charge, and be certified as the statute directs. — Stibbins v. Stib- bins, 1 J. P. Metcalf, 477. 2. The legislature has made no new rule as to the amount of proof, or the sufficiency of proof necessary to sustain any other charge than that of " lewd- ness or adultery," and in all other oases, such as abandonment, &c., the testi- mony of a single witness may be regarded as sufficient to sustain it. There must be proof other than admissions in such cases. But it is not required that two witnesses, or more than the testimony of one witness, shall be adduced. —Stibbins v. Stibbins, Ibid. 477. ' The credibility or the good character of the witness, introduced to prove the charge of adultery, must be personally known to the judge, or the officer taking the deposition, who shall so certify, or it must be proved by some wit- ness who is so known. These requirements of the statute are imperative, and cannot be dispensed with — White v. White, MS. Opinion, Deo. 1857. [638] DIVORCE AND ALIMONY. the party complaining had an actual residence here at the time of the doing of the act complained of, shall a divorce be granted for anything done out of the State/ unless it was also a cause of divorce in the country where the act was done. A suit for divorce must be brought within five years of the doing of the act complained of; and cohabitation as man afJd wife, after a JcnowJedge of the adultery or lewdness complained of, shall take away the right of divorce therefor. SECTION V. Every decree for a divorce may, at any time, be revoked or annulled by the court rendering it, on the joint application of the parties, and they thereby restored to the condition of hus- band and wife ; but no divorce shall thereafter be granted for the same or like cause. SECTION VI. Decree for separation or divorce from bed and board' may also be rendered for and of the causes which allow divorce, or for such other cause as the court in its discretion^ may deem ' 1. For the law generally as to condonation, which may he expressed in language or arise from implication, see Bishop on Marriage and Divorce, sec- tions 355 to 387, where it is fully treated, and all the authorities reviewed. — See Becket v. Becket, 17 Ben. Monroe, 374. 2. The courts of this State have no jurisdiction to decree a divorce in a case where the husband has never been domiciled in the State, and where it does not appear that the wife had become permanently resident here ; nor will the appearance and filing an answer by the husband confer jurisdiction. — Maguire V. Maguire, 7 Dana, 186. 3. If the husband has never been domiciled in the State, but the wife sepa- rated from him, has become permanently resident here, quaere 1 Whether the sovereign power of this State could not dissolve the legal as well as the actual union between her and her husband ? But it is certain such a divorce could have no operation propria vigore beyond the boundaries of the State, except so far as her own citizens are concerned. — Maguire v. Maguire, 7 Dana, 182. * For the evils resulting from such divorces, see sections 285 to 290, chapter 17, of Bishop on Marriage and Divorce. ' This means a sound judicial discretion, for which see sections 544 to 547, of Bishop on Marriage and Divorce. Commonwealth v. Hyatt, 6 Randolph, [639] KENTUCKY. sufficient. Pending an application for any divorce,' the court may allow the wife maintenance. Upon final decree of divorce from the bond of matrimony, the parties shall be restored to such property, not disposed of at the commencement of suit, as either obtained from or through the other before or during the marriage,^n consideration of or by reason thereof,'' and if the wife have not sufficient estate of her own, she may, on a 694-701 ; Rooke's Case, 5 Coke, 99 6, 100 a. And see Keighley's Case, 10 Coke, 139 a, 140 a. And also the entire chapter xxvi., pages 519 to 525, of Mr. Bishop on Marriage and Divorce. As to its effect as to rights and property, see section 691, Bishop on Mar- riage and Divorce. ' This allowance is imperatively required by the statute for the support of the wife, unless she be in adultery, for her support pending the suit, and the only subject for inquiry is the circumstances of the husband and ability. — Whitsell V. Whitsell, 8 Ben. Monroe, 50. It is the policy of the law to impress them with the idea that their union is to be permanent, and decree alimony according to merit. — Griffin v. Griffin, 8 Ben. Monroe, Kentucky Rep. 120. 1. When a suit is pending for such divorce, it is legally improper for the parties to live in matrimonial cohabitation, whatever is to be the result of the suit ; even if the husband offers to support the wife in his own house, with separate beds, she should not accept the offer. Therefore the single fact that the suit is pending, is, on the principles already laid down, alone suffi- cient to entitle the wife, who has no adequate means of her own, be she plaintiff or defendant, to alimony during its pendency. She is to have some allowance for separate support, made her by order of the court, out of the husband's pro- perty, and must furnish her the means to pay the expense of the suit. — Bishop on Marriage and Divorce, section 569. 2. The fact of marriage between the parties must be admitted or proved, be- fore there can be even a decree of sXimoiaj pendente lite. — lb., section 570. 3. See chapter Temporary Alimony, sections 569 to 590, Bishop on Marriage and Divorce, for the law and practice generally as to the same. 4. But for an allowance under peculiar circumstances, see Smith v. Smith, 1 Edwards, Chy. Rep. 255, cited section 579. — lb. 5. For the law generally as to alimony on final divorce, see Mr. Bishop's treatise on Marriage and Divorce, sections 591 to 623. ^ This requires the husband upon a decree of divorce to restore to the wife only such property of hers as is not disposed of before the commencement of the suit. — Wilmore v. Wilmore, 15 Ben. Monroe, 59. This provision indicates no intention to operate retrospectively, but on the contrary, all rights accrued or accruing, are expressly saved by the third section, so leaving them and the distribution of property between husband and wife after divorce, as to be regulated by the laws in force at the times the facts occur which are the grounds of divorce.— lb. 59. ' [640] DIVORCE AND ALIMONY. divorce obtained by her, have such allowance out of that of her husband as shall be deemed equitable.^ SECTION VII. Pending an application for divorce, or on final decree, the court may make an order for the care, custody, and mainte- nance of the minor children of the parties or any of them;^ and at any time afterwards, upon the petition of either parent, ' 1. The obtaining of a divorce by the wife, does not necessarily entitle her to a support from the husband's estate. It is a question addressed to the equitable discretion of the Chancellor. — Taylor v. Taylor, MS. Opinion, Sept. 1857. 2. A wife whose conduct has been throughout blameless and without re- proach, should be entitled to more favor from the chancellor in determining her allowance than one who, by her demeanor and behavior, has superinduced a rupture between herself and husband, resulting in a separation. — Hoy v. Hoy, MS. Opinion, June, 1856. 3. Where the husband obtained a decree of divorce against his wife, and on her cross-bill she had a decree for the property she had at the marriage, which was worth about one thousand dollars, but the husband.'s estate, consisting of land and slaves, and being worth twelve or fifteen thousand dollars, it was deemed but equitable on appeal that she should have a decree for the further sum of seven hundred and fifty dollars. — Pence v. Pence, 6 Ben. Monroe, 499. 4. The suit for alimony abates with the death of either party. — Gaines v. Gaines, 9 Ben. Monroe, 295. 5. Though the husband and wife by an antenuptial contract, may agree that each shall retain their separate property, such contract presents no bar to a decree for alimony ; but in such case the allowance should be only for so much, in addition to the wife''s own resources, as will maintain her in decency and comfort during the separation. — Logan v. Logan, 2 Ben. Monroe, 149. 6. And the amount of alimony may be reduced, enlarged, or altered by sub- sequent orders of the court on presentation of facts justifying it, and the cause should be retained for that purpose. — Lockridge v. Lookridge, 2 Ben. Monroe, 258 ; Ma,yhugh v. Mayhugh, 7 lb. 432. A decree dismissing a bill filed for alimony, is no bar to a subsequent suit for like causes subsequently occurring. — Griffin v. Griffin, 8 Ben. Monroe, 121. 7. Though it is not essential that the wife shall be entirely free from blame before she shall have a decree for alimony, yet if it appear that she is the chief cause of the dissension in the family, and pursue towards her husband a sys- tematic course of petty annoyance, to harass and distract him, the chancellor will withhold relief from her. — Griffin v. Griffin, 8 Ben. Monroe, 121. 2 See the case of Wilcox, Barbour's N. Y. Rep. ; but for the law generally upon this subject, see the recent work of Bishop on M. & D., Chapter XXIX., sections 632 to 645. 41 [ 641 J KENTUCKY. revise and alter the same, having, in all such cases of care and custody, the interest and welfare of the children principally in view. No such order for maintenance of children or allotment in favor of the wife, shall divest either party of the fee simple title to real estate.' SECTION VIII. A DIVORCE from bed and board shall operate as to property thereafter acquired, and upon the personal rights and legal capacities of the parties, as a divorce from matrimony; except that neither shall marry again during the life of the other, and except it shall not bar curtesy, dower, or distributive right. Such decree may be revised or revoked, at any time, by the court rendering the same.* SECTION IX. When the husband is about to remove himself or his pro- perty out of the State, or where there is reason to suspect that he will fraudulently sell, convey, or conceal his property, the wife may obtain the necessary order for securing alimony for herself and maintenance to their children, without giving any security. ' It was held in Kentucky, in the cases of Lockridge v. Lockridge, 3 Dana, 28, and Bartholemy v. Johnson, 3 Ben. Monroe, 91, that a fee simple title to lands might be assigned and vested in the wife as alimony, out of her hus- band's real estate, but afterwards disapproved, and finally expressly prohibited, as above, by this statute; and by section 15 the divorce bars her absolutely as to her potential right to dower. * Where a husband was divorced from his wife on a bill filed in Kentucky, and afterwards she filed a bill in the Court of Common Pleas in the State of Ohio claiming alimony against him, and he appeared and defended the same, and the court decided that as her claim to alimony had not been put in issue in the suit for divorce in this State, nor adjudicated upon by the court ren- dering the decree for divorce upon his behalf, her claim for alimony was not barred, and decreed her an allowance against him. It was held, that the decree of the Ohio court in her favor could not be questioned collaterally nor in a suit had to recover the allowance upon the record thereof, duly cer- tified according to the act of Congress, and was conclusive, however erroneous, until reversed by a higher court in the State of Ohio. — Rogers v. Rogers, 15 Ben. Monroe, 382. [642] DIVOKCB AND ALIMONY. SECTION X. A JURY shall not be used in any case for divorce or alimony.^ SECTION XI. Wheee a father or widow, having a child, join the religious society called Shakers,'' or any religious society holding similar faith, without having made adequate provision for his or her child or children, the Circuit Court of the county where he or she resides, if in this State, may, upon petition of any next friend, appoint a guardian to any infant child of such father or mother, and make, out of his or her estate, a reasonable provi- sion for the maintenance of such child or children, and remove the child from the custody of such parent or society. SECTION XII. Sales and conveyances made by the husband to a purchaser with malice, and with intent to defraud or hinder the wife, or for the benefit of any religious society, in fraud or hinderance of the right of his children to maintenance, shall be void against such wife or children. Amendment? SECTION I. A PARTY obtaining a divorce may marry again at any time after final decree of separation ; and the party against whom the decree of divorce is rendered may marry again at any time after one year from said decree. SECTION II. That living separate and apart without cohabitation for five consecutive years, the last two of which is with the intention ' Formerly, by statute in this State, a jury was required. — Thornberry v. Tliomberry, J. J. Marshall. " Bishop on Marriage and Divorce, sect. 509. ' Approved March 10, 1854, 2 Stanton, 29. . [643] KENTUCKY. of abandonment, sball be deemed a sufficient cause for divorce to both parties. SECTION III. The provisions of this act shall extend to and embrace all persons who have heretofore been divorced ; or where a divorce has been granted to either man or woman twelve months before the passage of this act. SECTION lY. That this act shall take effect from its passage.' The court granting divorce is authorized to restore former name where her petition presents a prayer to that effect.'' Costs.' Iq suits for alimony atid divorce, the husband shall pay the costs of each party,* unless it shall be made to appear in the ' Approved Maroh 10, 1854, 2 Stanton, 29. ' Approved January 17, 1860, 2 Stanton, 752. '■> Section 32 Kentucky Rev. Statutes, 207. ' In suits for divorce as well as for alimony, the husband is now Uahle for the extraordinary expenses incurred in obtaining a divorce, which includes a reasonable fee to her counsel as part of the costs of the suit, to be fixed and ascertained by the court where the divorce is granted, and the attorney cannot now maintain a separate suit against the husband, or proceed otherwise than provided in the statute. — Williams v. Monroe, 18 Ben. Monroe, 518. Before this enactment, it was held that a suit might be maintained against him by the attorneys for services rendered the wife, if they became reconciled and the marital relations continued. — Billings v. Piloher & Hauser, 7 Ben. Monroe, 458. But, according to the common law, the husband is not bound to pay the expenses of the wife incurred in a suit for a divorce. — Williams v. Monroe, 18 Ben. Monroe, 518. However, when the conduct of the husband is such towajds his wife as to render it necessary to exhibit articles of peace against him, or to demand either protection or alimony from the husband, he was bound to pay the expenses incident thereto, in case she succeeded. — Ibid. 618. Thus making a clear and manifest distinction at common law between suits for alimony and suits for a divorce. In the former, the wife seeks to live apart from her husband for safety, protection, and support, in consequence of his wrong doing, and he does not thereby become absolved from his duty and [644] DIVORCE AND ALIMONY, cause that the wife is in fault, and has ample estate to pay the same. obligation as husband, but still remains liable for them and their conse- quences ; while their object in the latter (suit for divorce) is to dissolve alto- gether, and thus discharge him from all his obligations. — Ibid. 518. In Ballard v. Caperton, December, 1859 (2 J. P. Metcalf, 414), where, on the 2d day of December, 1858, Mrs. Alissa Ann Bollard filed her petition in equity in the Madison Circuit Court against her husband, the appellant, in which, upon divers grounds, she prayed for a divorce and alimony. To this petition the husband filed his answer, in which he controverted all of the ma- terial allegations of the petition, and resisted the relief sought. The Circuit Court, on the 2d of October, 1858, made an order upon the de- fendant to pay to the plaintiff $150 for her support for a given time, pendente lite, and that he should pay the costs of the motion for the allowance. On the 7th of December, an order was made suggesting the death of the plaintiff, which had occurred since the last preceding term of the court. On a subse- quent day of the same term, the appellees, W. H. & J. W. Caperton, moved the court for an order on the defendant to pay the costs of the suit, and a reasonable allowance to the plaintiff's attorneys in the action, as a compensa- tion for their services in prosecuting the suit for the plaintiff. This motion was resisted by the defendant. The parties being heard, it was thereupon " ordered, that the defendant pay all the costs of this proceeding, and that he also pay to W. H. &, J. W. Caper- ton $50, as a fee to them for prosecuting this action." At a subsequent term of the court, in June, 1859, the appellees, the Capertons, came into court, and, upon the afidavit of J. W. Caperton that he had demanded from the defend- ant the payment of the $50 and the plaintiff's cost in the action; which, at the December term, he was ordered to pay, and that he had refused to pay the same, moved the court for an attachment against said defendant for his contempt in refusing to comply .with the order of the court to pay said costs and the allowance to the attorneys. The defendant, being in court, resisted this motion, but an attachment was awarded against him, returnable instanter, io answer for said contempt. The defendant was still in court, and attempted to answer the attachment. But, as he presented no answer which, in the opinion of the court, was sufficient, it was "ordered, that he stand committed to the jail of the county until said allowance to the Capertons and the plaintiff's costs of the action were paid." Ballard excepted to all these orders and rulings of the Circuit Court, and has now appealed to this court for their reversal. Judge Wood delivered the opinion of the court. In considering the appeal, two questions naturally present themselves : — 1st. Whether, in the state of the case exhibited by the record in the suit between Ballard and his wife, he was liable to the payment of her costs, both ordinary and extraordinary. 2d. If he was liable, could the liability be enforced in the mode adopted by the Circuit Court in this case. In examining the first of these questions, it is not necessary that we go behind the Revised Statutes. [645] KBlSrTUCKY. As was said by this court in tlie opinion delivered in the' case of Williams ti. Monroe (18 Ben. Monroe, 518), although there is no common-law obligation on the husband to pay the wife's legal advisers for services rendered by them in an action brought by her to obtain a divorce, yet he is by statute made re- sponsible for her costs in suits for divorce as well as alimony. By the 32d section of the chapter on Costs, Eev. Statutes, 207, it was en- acted that "in suits for alimony and divorce, the husband shall pay the costs of each party, unless it shall be made to appear in the cause that the wife is in fault, and has ample estate to pay the same." In Williams v. Monroe, supra, it was said further by this court : " Inasmuch as this statutory provision applies as well to suits for alimony as for divorce, and as the husband is liable in the forrcer, not only for her ordinary but also for her extraordinary costs, we think that he is liable under this statute for a reasonable fee to her counsel in a divorce case, as part of the costs of the suit." This provision of the Revised Statutes applies to all suits for divorce and alimony. And in all such cases the husband is bound to pay the costs of each party (including a reasonable compensation to the attorneys of the wife for their professional services rendered to her in the action), no matter what" the result of the suit may be, or by what cause it may have been terminated, unless two things are made to appear in the action : (1) that the wife is in fault, and (2) that she has ample estate to pay the costs. There must be a concurrence of the two conditions, in order to exempt the husband from the liability imposed by the statute. And both conditions must be made to appear in the cause. That the wife died before a trial, does not avoid the liability of the husband so plainly fixed upon him by the statute. The fee of the wife's attorneys is allowable as part of the costs, and it, with the other items of costs, may be ascertained by the court after the death of the plaintiff, or the termination of the suit by a judgment, and hence a separate action at law cannot be main- tained by the attorney against the husband, as decided in the case of Williams V. Monroe, supra, but application must be made to the chancellor in whose court the suit for divorce was decided, for an allowance as a part of the costs. It is clear that Ballard was bound to pay the costs of the action, including a reasonable allowance to the wife's attorneys ; and, as the court was author- ized to make the allowance and order the husband to pay it, and as the hus- band was in court and refused to comply, the court had the authority to coerce obedience in a summary way, by attachment and imprisonment. This power necessarily belongs to the court, to enable it to carry its judgments and orders into effect, and to protect its authority and dignity from contumacy. The orders of the Circuit Court are affirmed. [646] INDIANA. By recent statute of this State regulating descents, chapter 27th, page 248, volume 1st, Eevised Statutes of 1852. By section 16 tenancy by the curtesy and in dower are hereby abolished. Section 17. If a husband die testate or intestate leaving a widow, one-third of his real estate shall descend to her in fee simple from all demands of creditors: Provided^ however, that where the real estate exceeds in value ten thousand dollars, the widow shall have one-fourth only, and when the real estate ex- ceeds twenty thousand dollars, one-fifth only as against creditors. By section 27th, a surviving wife is entitled, except as in sec- tion seventeen excepted, to one-third' of all the real estate of which her husband may have been seised in fee simple at any time during the marriage, and in the conveyance of which she may not have joined, in due form of law ; and also of all the lands in which her husband had an equitable interest at the time of his death: Provided, that if the husband shall have left a will, the wife may elect to take under the will instead of this or the foregoing provisions of this act.' And by the act touching the marriage relation and incident thereto, approved May 31, 1852, chapter 52, Eevised Statutes, page 320, volume 2d, section 1st. In all marriages hereafter contracted, the husband shall be liable for the debts and liabilities of the wife contracted hefore marriage, to the extent of the personal property he may receive ' See note to sec. 529 anterior, as to the construction of this new provision. ' This differs from the former law in giving a fee siijiple interest of one- third for dower, instead of a life estate merely ; but makes no difference in what the widow is dowable. And for the difference between the common law doctrine as to the interest in which the wife is dowable, see McMahon v. Kimbell, 3 Blackford, 1. [647] INDIANA. with or through her, or derive from the sale or rent of her lands, and no farther.' § 2. Such liability of the husband shall not be extinguished by the death of the wife. § 3. When any woman, against whom any liability exists, shall marry, and has or acquires lands, judgment on such liability may be rendered against her and her husband jointly, to be levied of such lands only. § 4. When a ay judgment is rendered against a husband and wife, for the tort of the wife, execution on such judgment shall first be levied on the land of such wife, if she have any. § 5. No lands of any married woman shall be liable for the debts of her husband; but such laqds and the profits therefrom shall be her separate property as fally as if she was unmarried ; Provided, that such wife shall have no power to encumber or con- vey such lands except by deed in which the husband shall join.* And as to wills by chapter 11, page 308, vol. 2, Stat, of 1852. § 1. All persons, except infants and persons of unsound mind, may devise by last will and testament any interest de- scendible to their heirs, which they may have in any lands, tenements, and hereditaments, or in any personal property, to any person or corporation capable of holding the same. ' In assumpsit against husband and wife on a promissory note made \>j the wife dum sola, and non-assumpsit pleaded, the plaintiff must prove mar- riage. — Wallace v. Jones, 7 Blaokfdrd, 321. A suit cannot be sustained by husband and wife for a libel on them both. —Hart V. Crow, 7 Blackford, 351. In case of such libel there should be two actions, one by the husband for the injury to him, and the other by husband and wife for the injury to the wife. — lb. If pending such suit the husband die, and the suit proceed against the wife alone, her admissions of the debt made, are evidence against her. — Las- selle V. Brown, 8 Blackford, 221. 2 A feme covert may, by statute, join with her husband in the execution of a conveyance of real estate ; but she cannot be bound by any of the covenants contained in the conveyance. — Aldridge v. Burleson, 3 Blackford, 201. A feme covert cannot alien her real estate, unless her husband join in the conveyance. — Scott v. Purcell, 7 Blackford, 66. If a husband sell a wife's lauds for his own benefit, under an agreement with her to purchase other land for her of equal value, and he afterwards make such purchase, and cause the vendor to execute a deed to his wife, the lands so conveyed will not in equity be subject to the husband's debts contracted subsequently to his payment for the land, but before the execution of the conveyance. — Barnett v. Goring, 8 Blackford, 284. [648] NEW YOllK. An Act passed April T, 1848, for the protection of the property of married women. § 1. The real and personal property of any female who may hereafter marry, and which she shall own at the time of mar- riage, and the rents, issues, and profits thereof, shall not be sub- ject to the disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female.* § 2. The real and personal property and the rents, issues, and profits thereof, of any female now married, shall not be subject- to the disposal of her husband ; but shall be her sole and sepa- rate property as if she were a single female, except so far as the same may be liable for the debts of her husband heretofore con- tracted. § 3. It shall be lawful for any married female to receive by gift, grant, devise, or bequest, from any person other than her husband, and hold to her sole and separate use, as if she were a single female, real and personal property, and the rents, issues, and profits thereof, and the same shall not be subject to the dis- posal of her husband, nor be liable for his debts. § 4. All contracts made between persons in contemplation of marriage, shall remain in full force after such marriage takes place. ' 1. See the oases, Snyder v. Snyder, 3 Barbour, N. Y. Rep. 621 ; Holmes u. Holmes, 4 Barbour, N. Y. Eep. 298 ; Taylor v. Porter, 4 Hill, N. Y. Eep. 140 ; Vanderhuaden v. Mallony, 1 Comstook, 452. 2. In equity the separate estate of a married woman is not liable for her debts contracted before her marriage, where her husband had been discharged under the bankrupt act, and remained insolvent, unless the wife had done some act to charge it, which would amount to an appointment, after marriage, or which indicated an intention after marriage to charge the debt upon her separate es- tate. — Vanderhuaden v. Mallony, 1 Comstock, 452; lb., 3 Barbour, 9. [649] NEW YORK. An Act concerning the rights and liabilities of husband and wife. Passed March 20th, 1860. § 1. The property, both real and personal, which any mar- ried woman now owns, as her sole and separate property, that which comes to her by descent, devise, bequest, gift or grant; that which she acquires by her trade, business, labor or ser- vices, carried on or performed on her sole or separate account ; that which a woman married in this State owns at the time of her marriage, and the rents, issues and proceeds of all such property, shall, notwithstanding her marriage, be and remain her sole and separate property, and may be used, collected and invested by her in her own name, and shall not be subject to the interference or control of her husband, or liable for his debts, except such debts as may Have been contracted for the support of herself or her children, by her as bis agent. § 2. A married woman may bargain, sell, assign and transfer her separate personal property, and carry on any trade or busi- ness, and perform any labor or services on her sole and separate account, and the earnings of any married woman from her trade, business, labor or services, shall be her sole and separate property, and may be used or invested by her in her own name. § 3. Any married woman possessed of real estate as her sepa- rate property, may bargain, sell and convey such property, and enter into any contract in reference to the same, but no such conveyance or contract shall be valid without the assent in writ- ing, of her husband, except as hereinafter provided. § 4. In case any married woman possessed of separate real property, as aforesaid, may desire to sell or convey the same, or to make any contract in relation thereto, and shall be unable to procure the assent of her husband, as in the ' preceding section provided, in consequence of his refusal, absence, insanity, or other disability, such married woman may apply to the County Court, in the county where she shall at the time reside, for leave to make such sale, conveyance or contract, without the assent of her husband. § 5. Such application may be made by petition, verified by her, and setting forth the grounds of such application. If "the husband be a resident of the county, and not under disability, [650] NEW YOEK. from insanity or other cause, a copy of said petition shall be served upon him, with a notice of the time when the same will be presented to the said court, at least ten days before such ap- plication. In all other cases the County Court, to which such application shall be made, shall, in its discretion, determine whether any notice shall be given, and if any, the mode and manner of giving it. § 6. If it shall satisfactorily appear to such court, upon such application, that the husband of such applicant has wilfully abandoned his said wife, and lives separate and apart from her, or that he is insane, or imprisoned as a convict in any State prison, or that he is an habitual drunkard, or that he is in any way disabled from making a contract, or that he refuses to give his consent, without good cause therefor, then such court shall cause and order to be entered upon its records authorizing such married woman to sell and convey her real estate, or contract in regard thereto without the assent of her husband, with the same effect as though such conveyance or contract had been made with his assent. § 7. Any married woman may, while married, sue and be sued in all matters having relation to her property, which may be her sole and separate property, or which may hereafter come to her by descent, devise, bequest or the gift of any person ex- cept her husband, in the same manner as if she were sole. And any married woman may bring and maintain an action in her own name, for damages against any person or body corporate for any injury to her person or character, the same as if she were sole ; and the money received upon the settlement of any such action, or recovered upon a judgment, shall be her sole and separate property. § 8. Ko bargain or contract made by any married woman, in respect to her sole and separate property, or any property which may hereafter come to her by descent, devise, bequest or gift of any person except her husband, and no bargain or contract en- tered into by any married woman in or about the carrying on of any trade or business, under the statutes of this State, shall be binding upon her husband, or render him or his property in any way liable therefor. § 9. Every married woman is hereby constituted and declared to be the joint guardian of her children, with her husband, with [651] NEW YOBK, equal powers, rights and duties in regard to them with the hus- band. § 10. At the decease of husband or wife, leaving no minor child or children, the survivor shall hold, possess and enjoy a life estate in one-third of all the real estate of which the hus- band or wife died seised. § 11. At the decease of the husband or wife intestate, leaving minor child or children, the survivor shall hold, possess and enjoy all the real estate of which the husband or wife died, seised, and all the rents, issues and profits thereof, during the minority of the youngest child, and one-third thereof during his or her naturallife. [652] PENNSYLVANIA. I. OF MARRIAGE. An Act for the preventing of clandestine marriages. Passed in 1 'f 1 . 1 Smith's Laws, 21. § 1. All marriages not forbidden by the law of Grod, shall be encouraged; but the parents or guardians shall, if conve- niently they can, be first consulted with, and the parties' clear- ness of all engagements signified by a certificate from some credible person where they have lived, or do live, produced to such religious society to which they relate, or to some justice of the peace of the county in which they live, and by their affixing their intentions of marriage on the court-house or meet- ing-house doors in each respective county where the parties do reside or dwell, one month before solemnization thereof; the which said publication, before it be so affixed as aforesaid, shall be brought before one or more justices of the peace, in the re- spective counties to which they respectively belong; which jus- tice shall subscribe the said publication, witnessing the time of such declaration, and date of the said publication, so to be affixed as aforesaid. And all marriages shall be solemnized by taking each other for husband and wife, before twelve sufficient wit- nesses;' and the certificate of their marriage, under the hands ' This part of the statute is merely directory, and marriages otherwise so- lemnized are valid. Eodehaugh v. Banks, 2 Watts, 9. — Marriage in Pennsyl- vania is a civil contract, which may he completed hy any words in the present tense, without regard to form. Hantz v. Sealy, 6 Binn..405 ; Guardians v. Nathans, 5 Penn. Law Joum. 1. — For civil purposes, cohabitation and reputa- tion are sufficient evidence. Senser v. Bower, 1 Penn. R. 452 ; Thorndell v. Morrison, 1 Casey, 326 ; Kenyon v. Ashbridge, 11 Ibid. 157. — The consent of the parties to the alleged marriage is to be determined by what took place at the time of its celebration ; it is not affected by a secret reservation of one of them. Barnett v. Kimmell, 11 Casey, 13. [653] PENNSYLVANIA. of the parties and witnesses, at least twelve, and one of them a justice of the peace, shall be brought to the register of the county where they are married, and registered in his office. And if any servant^or servants shall procure themselves to be married, without consent of his or her master or mistress, such servant or servants shall, for such their offence, each of them serve their respective masters or mistresses one whole year, after their time of servitude by indenture or engagement is expired. And if any person, being free, shall marry with a servant as aforesaid, he or she so marrying shall pay to the master or mistress of the servant, if a man, twelve pounds, and if a woman, six pounds, or one year's service ; and the servant so being married, shall abide with his or her master or mistress, according to indenture or agreement, and one year after as aforesaid. And if any per- son shall presume to marry, or be witness to any marriage, con- trary to this act, such person, so married, shall forfeit twenty pounds to the proprietary and governor; and the witnesses being present at such marriage, shall forfeit and pay, each of them, five pounds, to the use of the proprietary and governor ^s aforesaid, and pay damages to the party grieved, to be reco- vered in any court of record within this government. § 2. Provided, That this law shall not extend to any who shall marry or be married in the religious society to which they belong, so as notice shall be given by either of the parties, to the parents, masters, mistresses or guardians, one full month at least before any such marriage be solemnized. § 3. No license or dispensation shall hinder or obstruct the force or operation of this act, in respect of notice to be given to parents, masters, mistresses, or guardians, as aforesaid. A Supplement to the act entitled "An act for preventing clandestine marriages^" Passed 14th February, ITSQ-SO. 1 Smith's Laws, 180. § 1. No justice of the peace shall subscribe his name to the publication of any marriage within this province, intended to be had between any persons whatsoever, unless one of the per- ' An apprentice i3 not an indented servant within the prohibition of this act. Altemus v. Ely, 3 Rawle, 305. [654] OF MABBIAGE. sons, at least, live in tBe county where such justice dwells, and unless such justice shall likewise have produced to him a certi- ficate of the consent' of the parent or parents,' guardian or guardians, master or mistress of the persons, whose names or bans are to be so published, if either of the parties be under the age of twenty-one years,^ or under the tuition of their parents, or be indented servants, if such parent, guardian, master or mistress live within this province, or^ can be consulted with; and also that no person or persons, of what character or degree soever he be, presume to publish the bans of matrimony or in- tentions of marriage, between any person or persons, in any church, chapel, or other place of worship, within this province, unless one of the parties at least live in the town, county, or city where such publication shall be made, and unless the person or persons making or causing to be made such publi- cation, shall have received such certificate of the consent of the parent, guardian, master, or mistress, as is hereinbefore directed, if the parties who ought to grant such certificate live within this province. § 2. And if any justice of the peace, clergyman, minister, or other person, shall take upon him or them to join in marriage any person or persons, or if any justice of the peace shall be > The previous assent of the parent may he proved to show that the mar- riage was not clandestine. Eodebaugh v. Sanks, 2 Watts, 9 ; Carskadden v. Poorman, 10 Watts, 82 ; Helffenstein v. Thomas, 5 Rawle, 211. — But not his subsequent indications of satisfaction with it. Lea v. Little, Addison, 192 ; Carskadden v. Poorman, 10 Watts, 82. ' A surviving mother is a parent within the meaning of the act. Buchanan V. Thorn, 1 Barr, 431. — And so is the putative father of an illegitimate child. Macklin v. Taylor, Addison, 212. — The parent is entitled to sue, though the child be apprenticed to another. Altemus v. Ely, 3 Rawle, 305. — But not a father who has relinquished his parental control over the child, and turned it upon the world to shift for itself. Stansbnry v. Bertron, 7 W. & S. 362 ; Robin- son V. English, 10 Casey, 324. — It is no defence, however, to such an action, that the father, by reason of moral degradation, was unfit to take care of his minor child. Robinson v. English, 10 Casey, 324. " It is no defence that the clergyman misconceived the age of the person married. Donahue v. Dougherty, 5 Rawle, 124. ' This word "or" is to be read " and ;" no penalty is recoverable for marry- ing the minor daughter of a citizen of another State, not resident within this commonwealth, against the consent of her parent. BoUin v. Shiner, 2 Jones, 205. [655] PENNSYLVANIA. present at and subscribe his name as a witness to any marriage within this province, without such publication' being first made as aforesaid, such justice of the peace, clergyman, minister or other person, taking upon him to sign, make or cause to be made, any publication contrary to the directions of this act, or shall marry or join in marriage any person or persons not published, as in the aforesaid act of assembly, and by this act is directed, every justice of the peace, clergyman, minister, or other person so offending, shall, for every such offence, forfeit the sum of fifty pounds,^ to be recovered in any court of record within this province, by bill, plaint,^ or information, by the per- son or persons grieved,^ if they will sue for the same, wherein no essoin, protection, or wager of law, nor any more than one imparlance shall be allowed. § 3. Provided, That nothing herein contained, shall be deemed to extend to any person, who shall be married in the religious society to which they belong, so as notice be given to the parent or parents, guardian or guardians, masters or mistresses of the person or persons so to be married, if such parent, guardian, master or mistress live within this province, at least twenty days before such marriage be solemnized; nor that this law shall extend to any person marrying by the authority of any lawful license, so as such consent or approbation in writing of ' It is the joining in marriage wittout publication to which the penalty is attached, and not the doing so without a certificate of consent. Huston v. Clerk, Addison, 346. — And the burden of proving that there was no publication of bans lies on the plaintiff. Helffenstein v. Thomas, 5 Rawle, 209. ^ The jury can give neither more nor less than the exact penalty. Macklin u. Taylor, Addison, 214. — Nor is the tender of any less sum a sufficient amends. Lowrie v. Verner, 3 Watts, 317 ; Mitchell v. Cowgill, 4 Binn. 25— But, it seems, the party may waive the penalty and sue for damages under the act of 1701. Hill V. Williams, 14 S. & R. 289.— There can be but one penalty recovered; and if the parent of one party has already recovered, no action can be main ■ tained by the parent of the other party. Hill v. Williams, 14 S. & E. 287.— But a collusive recovery in the first action is not a defence. Burns v. Bryan, Pittsburg Legal Journal, 16th December, 1854. » An action of debt is within the statute. Donahue v. Dougherty, 5 Eawle, 124. " No actual damage need be proved. Helffenstein v. Thomas, 5 Kawle, 209. —It is sufficient, that the marriage is an unjustifiable interference with the relation existing between the parent and his offspring. Donahue v. Dougherty, 5 Rawle, 124. e, j, [656] OF MARRIAGE. the parent or parents, guardian or guardians, masters or mis- tresses, as by this act is directed, be first had, and the same con- sent be certified in the body of the said license. An Act to prevent the killing of deer at certain seasons in Union County, and relative to marriage certificates. Passed 10th April, 1849. Pamphlet Laws, 549. § 2. Every person in whose care or possession may be found the record kept by any minister of the gospel, judge, alderman or justice of the peace, of any marriage contract solemnized by or in the presence of such minister of the gospel, judge, alder- man or justice of the peace, shall, on application made to him, and the payment or tender of a fee of fifty cents in every case, deliver to the person applying for the same, a full transcript of the record or entry in such case, with a proper certificate of the correctness of said transcript ; and any person having possession of such record as aforesaid, neglecting or refusing to comply with the provisions of this section, shall be liable to a penalty of fifty dollars, to be sued for and recovered with costs, before any justice of the peace of the proper county, by any person aggrieved, one-half to be paid to the person suing for the same; and the other half to the county in which suit is brought. An Act to protect certain domestic and private rights^ and prevent abuses in the sale and use of intoxicating drinks. Passed 8th May, 1854. Pamphlet Laws, 664. § 4. Any judge, justice or clergyman who shall perform the marriage ceremony between parties, when either of said parties is intoxicated, shall be deemed guilty of a misdemeanor, and upon a conviction thereof shall pay a fine of fifty dollars, and be im- prisoned at the discretion of the court, not exceeding sixty days. An Act to legitimate children born out of lawful wedlock. Passed 14th May, 185T. Pamphlet Laws, 501. § L In any and every case where the father and mother of an illegitimate child or children, shall enter into the bonds of 42 [657] PENNSYLVANIA. lawful wedlock, and cohabit, such child or children shall there- by become legitimated, and enjoy all the rights and privileges as if they had been born during the wedlock of their parents. An Act relating to illegitimate children. Passed 21st April, 1858. Pamphlet Laws, 413. § 1. The act entitled "An act to legitimate children born out of lawful wedlock," passed the 14th day of May, 1857, shall be taken to apply to all cases within the terms of that act prior to its date, as well as those subsequent thereto : Provided, That no estate already vested, shall be divested by this act. II. MARITAL RIGHTS. An Act relating to Orphans' Courts. Passed 29th March, 1832. Pamphlet Laws, 205. § 48. When upon any proceedings in the Orphans' Court,' a sum of money shall be awarded by the court for the share or por- tion 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 approved, 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 always, That if the wife, being of full age, on a separate examination, the husband not ' By the act of 16th March, 1847, the provisions of this section are extended to proceedings in partition in the common law courts. Pamphlet Laws, 474. ^ This does not apply to the case of one who is a feme sole, at the time of the partition ; in such case payment to a future husband will bar the wife. Quigley v. The Commonwealth, 4 Harris, 353. ' A payment of the wife's share into court is unauthorized by law. Goepp's Appeal, 3 Harris, 426. ■* This provision does not extend to pecuniary legacies. Lowman's Ap- peal, 3 W. & S. 349-50. [658] MABITAL EIGHTS. 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, without any threats or compulsion on the part of her husband, the full contents and legal effect of such declaration being first made known to her by the judge, and the said declaration and ac- knowledgment 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 fol- lows: "Whereas, I, A. B., the wife of'C. B., am entitled to the sum of proceeding from the sale (or partition) of the real estate of D. B., in the county of . Now, I do certify and declare, that I consent and agree that the same be paid to my husband, the said C. B., without any condition or security whatever. "Witness my hand, this day of , &c." The form of the certificate to be given by the judge shall be as follows : " On the day of , A. D. , personally appeared before me, one of the judges of the (Or- phans' Court), for the county of , A. B., the wife of C. B., of [here insert his residence and occupation], who, being of full age, and by me examined, separate and apart from her said hus- band, and the contents and legal effect of the foregoing instru- ment, by me fully explained and made known to her, declared that she executed the same fr-eely 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 declaration is not binding on lier, if made before the amount of her share has been duly ascertained and fixed. Walter's Estate, 2 Whart. 246. — In this case there is a dictum by Rogers, J., that if such declaration be duly made after the sum has been so ascertained, it cannot be retracted. Ibid. 252. — But, in England, it has been ruled, that a feme covert will be allowed to revoke a consent to the payment of her fiinds in court to her husband, when thS'objeot of that consent may be defeated by his previous insolvency. Watson v. Mar- shall, 19 Eng. L. & Eq. 569. ^ It must be filed during the lifetime of the wife ; otherwise, at her death her share will go to her heirs at law. Beyer v. Reesor, 5 W. & S. 501 ; s. c, 3 Penn. Law Journ. 110. [659] PENNSyLVANIA. A Supplement to an act passed the thirteenth day of June, Anno Domini one thousand eight hundred and thirty-six, entitled " An act relating to the commencement of actions." Passed 12th April, 1845. Pamphlet Laws, 386. § 1. No suit or other legal proceeding in any court of this commonwealth, brought by a feme sole, now or hereafter pend- ing, shall abate by the marriage of the plaintiff or petitioner, contracted after the commencement of the same; but the hus- band of such plaintiff or practitioner shall have the power to become a party thereto, and to prosecute the same to final judg- ment or decree. A Supplement to an act entitled "An act relative to the Le Raysville Phalanx," passed March, Anno Domini one thousand eigJit hundred and forty-seven ; and relative to obligors and obligees ; to secure the rights of married women; in relation to defalcation; and to extend the boundaries of the borough of Ligonier. Passed 11th April, 1848. Pamphlet Laws, 536. § 6. Every species and description of property, whether con- sisting of real, personal, or mixed, whicb 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 married 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 ' This act enables a married woman to hold property, not as a feme sole, but as if it were settled to her use as a feme covert. Bear's Administrator v. Bear, 9 Casey, 525 ; Pettit v. Fretz's Executor, Ibid. 118 ; Walker v. Eeamy, 12 Ibid. 410. The earlier cases of Cummings' Appeal, 1 Jones, 272, and Good- year V. Rumbaugh, 1 Harris, 480, in which a different construction was given to the act, are no longer recognized as authority in the courts of Pennsylvania. * The fact that real estate was paid for with the wife's earnings or savings does not give her a separate estate in the property, under this act ; the hus- band is entitled in his own right to the earnings of his wife during coverture. Raybold v. Raybold, 8 Harris, 308.— Nor can she acquire and hold property against the creditors of her husband by carrying on a mercantile business, in her own name, with capital loaned to her for that purpose ; the husband is the owner of goods thus purchased, as he is also of the prooeeda of the joint skill and labor of himself and wife. Hallowell v. Horter, 11 Casey, 375. [660] MARITAL RIGHTS. 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 incumbered 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 com- monwealth,' 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 hus- ' The act protects the wife's interest in her separate property, both as to title and possession ; when she and her husband are in possession, a purchaser at sheriff's sale of the husband's interest cannot recover possession in ai action of ejectment against him. McElfatriok v. Hicks, 9 Harris, 402. — The act does not require that the use and possession of the property of the wife should be exclusive of the husband. Manderbaoh v. Mock, 5 Casey, 43 ; Hoar v. Axe, 10 Harris, 381 ; Barncord v. Kuhn, 12 Casey, 383 ; Walker v. Reamy, Ibid. 410. ' Where property is claimed by a married woman as against the creditors of her husband she must show by evidence, which does not admit of a rea- sonable doubt, either that she owned it at the time of her marriage, or else acquired it afterwards by gift, bequest, or purchase ; in case of a purchase after marriage the burden is upon her to prove distinctly that she paid for it with funds which were not furnished by her husband. Gamber v. Gamber, 6 Harris, 366 ; Walker v. Reamy, 12 Casey, 410. — In the absence of such proof, the presumption is a violent one that her husband furnished the means of payment. And this rule applies as well to purchases of real as of personal property. Keeney v. Good, 9 Harris, 349 ; Bradford's Appeal, 5 Casey, 613 ; Topley V. Topley's Administrators, 7 Ibid. 328 ; Auble's Administrator v. Mason, 11 Ibid. 261. — But the rule has no application in an action against a mere trespasser. Hoar v. Axe, 10 Harris, 381. ' This provision only applies to cases where the husband, by the wife's authority, undertakes to transfer or incumber her estate; it makes no change in the form of acknowledgment where both join in the deed. Haines v. Ellis, 12 Harris, 253 ; Shinn v. Holmes, 1 Casey, 142. — A wife may bind her sepa- rate estate for her husband's debt, but she cannot bind it to pay the expenses of collecting it. Magaw v. Stevenson, 1 Grant's Cas. 402. — She may, in this mode, assign her interest in her deceased father's residuary estate, to secure the debts of her husband. Lytle's Appeal, 12 Casey, 131. * This act does not empower her to convey her real estate by a deed in which her husband has not joined. Peck v. Ward, 6 Harris, 506 ; Ulp v. Campbell, 7 Ibid. 361 ; Thomdell v. Morrison, 1 Casey, 326. — Or to execute an obligation for the payment of money, or the performance of any other act.' Caldwell v. Walters, 6 Harris, 82; Glyde v. Keister, 8 Casey, 85. — Or to enter into a valid recognizance as bail for her husband. Bennet v. Smith, 3 Am. Law Journ. 138. — But in a mortgage of her separate estate for the debt of her husband, she may waive the limitation given by the act of 1705, and covenant that a writ of scire [66L] PENNSYLVANIA. band shall not be liable for the debts of the wife contracted be- fore marriage ; Provided, That nothing in this act shall be con- strued to protect the property of any such married woman from liability for debts contracted by herself,' or in her name by any person authorized so to do, or 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 against the property of the wife.^ § 7. Any married woman may dispose, by her last will and testament, of her separate property, real, personal, or mixed, whether the same accrues to her before or during coverture:' Provided, That said last will and testament be executed in the presence of two or more witnesses, neither of whom shall be her husband. § 8. In all cases where debts may be contracted for necessa- ries, for the support and maintenance of the family of any mar- ried 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 a judgment, have an execution against the husband alone ; and if no property of the said hus- band be found, the officer executing the said writ shall so return, facias may immediately issue on default of payment of the mortgage debt. Black V. Galway, 12 Harris, 18 ; Patterson v. Eotinson, 1 Casey, 82. ' This refers to dehts contracted by her before marriage, from liability for which the husband is exempted by the preceding proviso. Glyde v. Keister, 8 Casey, 85 ; Bear's Administrator v. Bear, 9 Ibid. 629. — It does not confer upon her a new power to contract debts, with the privilege of being sued for them. Ibid. — It seems, she is empowered to contract debts for the improve- ment of her separate estate. Mahon v. Gormley, 12 Harris, 80 ; Heugh v. Jones, 8 Casey, 432 ; Murray v. Keyes, 11 Ibid. 384 — But her bond given for such a debt is void. Glyde v. Keister, 8 Ibid. 85. — And she is not liable for a debt contracted for the avowed purpose of improving her separate estate, unless it be shown that the money was actually applied to that object. Heugh v. Jones, Ibid. 432. " In an action 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 one of the exceptions contained in this act ; otherwise the plea of coverture is a good defence for the wife. Murray a. Keyes, 11 Casey, 384 ; Parke v. Kleber, 8 Pittsburg Leg. Journ. 170. ' This power is a general one, and not limited to property acquired subse- quently to the passage of the act. Van Wert v. Benedict, 1 Brad. 114. This section does not prevent the will of a feme sole from being revoked by her subsequent marriage. Fransen's Will, 2 Casey, 202. [662] MARITAL EIGHTS. and thereupon an alias execution' may be issued, which 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: Provided, That judgment shall not be rendered 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 the said husband and wife.' § 9. When any married woman, possessed of separate per- sonal property as aforesaid, shall die intestate, her husband shall be first entitled to letters of administration on her estate, which said 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 child- ren living, her personal estate shall be divided amongst the husband and such child or children, share and share alike ; if any such child or children being dead, shall have left issue, such issue shall be entitled to the share of the parent. § 10. The real estate of such married woman, upon her decease, shall be distributed as provided for by the intestate 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 curtesy.^ ' An attaolimeiit execution is an alias execution witWu the meaning of the act, and requires to support it a previous execution against the husband. Franklin v. Rush, 1 Phila. R. 571. * This word "or" is to be read "and;" the plaintiff in an action against husband and wife, under this proviso, must aver and prove, not only that the debt was incurred for necessaries for the support and maintenance of the family, but that it was contracted by herself. Murray v. Keyes, 11 Casey, 384 ; Parke v. Kleber, 8 Pittsburg Leg. Journ. 170. — The same point was ruled in Texas, under the statute of that State, in Magee v. White, 23 Texas, 180. ' An action cannot be sustained against a married woman, under this sec- tion, for necessaries furnished to her before the passage of the act. Headley ■0. Ettling, 1 Phila. R. 39. — What are family necessaries is a question for the j ury, under the circumstances of the particular case. Parke v. Kleber, 8 Pitts- burg Leg. Journ. 170. * If the wife die before the husband, intestate, seised of an estate of in- heritance, he will be entitled to enjoy the same during his life, in the same manner as a tenant by the curtesy consummate at common law ; but, during the life of the wife, he can neither sell, lease, charge, or in any way affect her [663] PENNSYLVANIA, 4 Supplement to an act entitled "An act to prevent waste in certain cases within this commonwealth," passed the twenty-ninth day of March, one thousand eight hundred and twenty-two ; to land and building associations ; giving the court of Susquehanna County jurisdiction in a certain case; relative to the service of process in certain cases ; to party walls in West Philadelphia ; to the proof of a certain will; to the^sale and purchase of certain burial grounds in Philadelphia ; to the laying of gas pipes in the district of Moyamensing ; ' to the release of certain sureties in Erie County; to the State Lunatic Hospital ; relative to the service of process against sheriffs; to the rights of married women; to ground rents; and relating to foreign insurance companies. Passed 22d April, 1850. Pamphlet Laws, 553. § 20. The true intent and meaning of the act of assembly to secure the rights of married women, passed the 11th day of April, A. D. 1848, is, and hereafter shall be, that the real estate of any married- woman in this commonwealth shall not be sub- ject 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 said wife.* An Act relating to the bail of executrixes ; to partition in the Or- phans', Court and Common Pleas ; to colored convicts in Phila- delphia ; to the limitation of actions against corporations ; to actions enforcing the payment of ground rent; to trustees of mar- ried women, &c. Passed 25th April, 1850. Pamphlet Laws, 569. § 11. Whenever by the provisions of the act of assembly of this commonwealth, entitled " A supplement to an act entitled real estate, having no present interest therein, nor any future interest, except as distributee under tlie intestate law. Gamble's Estate, 1 Pars. 489. — A hus- band cannot be tenant by the curtesy of his wife's estate in remainder, unless the particular estate be ended during the coverture. Hitner v. Ege, 11 Har- ris, 305. ' The act of 1848 was not intended to affect the vested rights of husbands, and does not protect them, for the wife's benefit, against the claims of his creditors. Lancaster Bank v. Stauffer, 10 Barr, 398 ; Lefever v, Witmer, Ibid. 505 ; Boose's Appeal, 6 Harris, 392 ; Peck v. Ward, Ibid. 509 ; Stehman v. Hnber, 9 Ibid. 260; Burson's Appeal, 10 Ibid. 164; Bachman w. Chrisman, 11 Ibid. 162. [664] MAEITAL EIGHTS. 'An act relative to the Le Eaysville Phalanx,' passed March, Anno Domini 1847; and relative to obligors and obligees; to secure the rights of married women; in relation to defalcation; and to extend the boundaries of the borough of Ligonier," et cetera, 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 ap- point a trustee of the same, not being the husband of the said petitioner ; and it shall further be lawful for any such married woman to declare a trust in regard to, such property or any part thereof, in favor of any of her children. § 39. Any suit or suits at law hereafter to be commenced in any of the courts of this commonwealth, touching or concern- ing, or for the recovery of any ' property, ' real, personal or mixed, belonging or secured to any married woman, by virtue of the provisions of the act relating to' the rights of married women, passed the 11th day of April, 1848, may be brought in the names of such married woman and her husband to the use of the said married woman; and a recovery in such suit or suits shall be for the exclusive benefit of such married woman.^ ' This act does not authorize the appointment of a trustee to take charge of property which was owned hy a married woman, prior to the passage of the. act of 1848, to the exclusion of her husband. Burson's Appeal, 10 Harris, 164. * Prior to the passage of this act, it had been determined that, under the act of 1848, an action to recover the separate property of a married woman, or for injuries done to it, might be brought in the joint names of husband and wife, or that she might sue in her own name without joining her husband, as circumstances might require. Goodyear v. Eumbaugh, 1 Harris, 480 ; Sheidle V. Weishlee, 4 Ibid. 134.— A married woman can neither sue nor be sued on her contract made during coverture ; but in actions by or against her, on her antenuptial contract, she is to be joined with her husband. Williams v. Cow- ard, 1 Grant's Cas. 21 ; Hertzog v. Hertzog, 5 Casey, 465. — Neither the act of 1848, nor any of its supplements, empowers her, by her next friend, to main- tain an action of debt against her husband, on a contract made during cover- ture. Eitter v. Eitter, 7 Casey, 396. — Where a joint action is brought against husband and wife, under the act of 1848, with a view of charging the wife's separate estate, she is the substantial party defendant, and may appeal from an award, without her husband joining in the appeal. Murray v. Keyes, 11 Casey, 384. [665] PENNSYLVANIA. An Act to incorporate a company to erect a bridge over the river Schuylkill, at Spring Mill, in Montgomery County; relative to the nineteenth section of " An act regulating certain election districts, &c., approved March twenty-ninth, eighteen hundred and fifty- one;" to school directors in Philadelphia County; to actions for damages sustained by injuries done to the person by negligeruie or default ; relative to the accounts of John Humes, deceased ; to authorize the trustees of the Seventh Presbyterian Church of Phila- delphia to convey certain real estate; to security for moneys loaned by wives to husbands; to unpaid school taxes in Bradford County; and relative to service of process on agents of joint stock com- panies. Passed 15th April, 1851. Pamphlet Laws, 669. § 22. It shall and may be lawful for married women to loan to their husbands moneys, being of the separate estate of the wife, and to take in security therefor a judgment or mortgage against the estate of the husband, in the name of a third person, who shall act as trustee for such married woman ; and any such security heretofore or hereafter taken bond fide to secure such loan or moneys received by the husband from the pro- ceeds of the real or personal estate of the wife, shall be as good and valid in law against the estate of the husband as though the same had been invested by a trustee appointed by the court. An Act to annul the marriage contract of Philip Gangwer, and Harriet, his wife ; relative to the trustee of the Green Ridge Im- provement Company; the Loyalhanna Plank Road Company; to insane married women; and to the tax on the Short Mountain Coal Company. Passed 28th October, 1851. Pamphlet Laws, 724. § 7. When any married women in this commonwealth hath become insane, it shall be lawful for her husband, upon appli- cation to the Court of Common Pleas of the proper county, to select and appoint three discreet and intelligent persons, one of whom shall be a practising physician, who shall make an exa- mination, personal or otherwise, of such alleged insanity, and report the facts to the court, and if the said court be fully satis- fied 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 sufficient [666] MAEITAL EIGHTS. security to the commonwealth for the faithful performance of. his trust, have full power to transact all business 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. An Act relating to certain duties and rights of husband and wife, and parents and children. Passed 4th May, 1855. Pamphlet Laws, 430. § 1. The power of any married woman to bequeath or devise her property by will, shall be restricted, as regards the hus- band, 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 cur- tesy : Provided, That nothing herein contained shall affect the right or power of the wife, by virtue of any authority or ap- pointment contained in any deed or will, to grant, bequeath, devise as heretofore, any property held in trust for her sole and separate use. § 2. Whensoever any 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 a, feme sole trader, under the act of the 22d of Febru- ary, 1718,' entitled " An act concerning feme sole traders," and be subject as therein provided, and her property, real and per- sonal, howsoever acquired, shall be subject to her free and ab- solute disposal during life, or by will, without any liability to be interfered with or obtained by such husband, and in case of her intestacy shall go to her next of kin, as if he were pre- viously dead. ' See 1 Smitli's Laws, 99. This act gives a fem^ sole trader the capacity to sue and be sued without Joining her husband. But a married woman is not liable to be sued as a feme sole trader under the act of 1855, unless she has been so decreed under the provisions of the fourth section. Hyde v. Hesser, 16 Leg. Int. 364. [667] PENNSYLVANIA. § 3. Whensoever any husband or father, 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, and she may place them at employment and receive their earnings, or bind them to apprenticeship without the interference of such husband, the same as the father can now do by law : Provided always, That she shall afford to them a good example, and pro- perly educate and maintain them according to her ability: And provided, That if the mother be of unsuitable character to be intrusted as aforesaid, or dead, the proper court may appoint a guardian of such children, who shall perform the duties afore- said, and apply the earnings of such children for their main- tenance and education. § 4. That creditors, purchasers and others may, with certainty and safety, transact business with a married woman under the circumstances aforesaid, she may present her petition to the Court of Common Pleas of the proper county, setting forth, under af&davit, the facts which authorize her to act as afore- said, and if sustained by the testimony of at least two re- spectable witnesses, and the court be satisfied of the justice and propriety of the application, such court may, upon such notice as they may direct, make a decree' and grant her a certificate, that she shall be authorized to act, have the power and transact business as hereinbefore provided; and such certificate shall be conclusive evidence of her authority, until revoked by such court for any failure on her part to perform the duties by this act made incumbent upon her, which may be ascertained upon the petition of any next friend of her children. § 5. No husband who shall have, as aforesaid, for one year or upwards 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 intes- tate laws of this commonwealth. § 6. No father who shall have, as aforesaid, for one year or upwards previous to his death, wilfully neglected or refused to [668] MARITAL BIGHTS. provide for his child or children, shall have the right to ap- point any testamentary guardian of him, her or them, during minority. § 7. It shall be lawful for any person desirous of adopting any child as his or her heir, or as one of his or her heirs, to present his or her petition to such court in the county where he or she may be resident, declaring such desire, and that he or she will perform all the duties of a parent to such child ; and such court, if satisfied that the welfare of such child will be promoted by such adoption, may, with the consent of the pa- rents or surviving parent of such child, or if none, of the next friend of iuch child, or of the guardians or overseers of the poor, or of such charitable institution as shall have supported such child for at least one year, decree that such child shall as- sume the name of the adopting parent, and have all the rights of a child and heir of such adopting parent, and be subject to the duties of such child, of which the record of the court shall be suf&cient evidence : Provided, That if such adopting parent shall have other children, the adopted shall share the inherit- ance only as one of them in case of intestacy, and he, she or they shall respectively inherit from and through each other, as if all had been the lawful children of the same parent.' An Act relating to the rights of property of husband and wife. Passed 11th April, 1856. Pamphlet Laws, 315. § 1. So much of the act relating to the right of married women, and for other purposes, passed the 11th of April, 1848, as requires the consent of a married woman to be first had and 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, is hereby repealed ; and all deeds or mortgages of any married woman heretofore acknowledged jointly with her hus- ' Although this act gives an adopted child a capacity to inherit, It does not exempt him from the payment of the collateral inheritance tax, from which children and lineal descendants are exempted. Commonwealth v. Kancrede, 8 Caaey, 389. [6&9] PENNSYLVANIA. band, so as to bar her right of dower or interest in her husband's lands, shall be effectual and valid to debar her in respect to her own real estate. § 2. Nothing in said act contained shall be construed to authorize any married 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. § 3. Whensoever any husband shall have deserted or sepa- rated himself from his wife, or neglected or refused to support her, or she shall have been divorced from his bed and board, it shall be lawful for her to protect her reputation by an action for slander or libel ; and she shall also have the right by action, to recover her separate earnings or property : Provided, That if her husband be the defendant, the action shall be in the name of a next friend. § 4. 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 Gompetent 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 be lawfully required by the executor or administrator, upon the payment to her of the moneys to be distributed as aforesaid, with the same effect, for the intent and purpose of binding her separate estate, as if she were sole and unmarried. An Act relating to certain charitable companies. Passed 24th February, 1859. Pamphlet Laws, 78. § 1. 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. [670] OF DOWEH. III. OF DOWER. An Act relating to the descent and distribution of the estates of in- testates. Passed 8th April, 18.33. Pamphlet Laws, 315. § 1. The real and personal estate of a decedent," whether male or female, remaining after payment of all just debts and legal charges, which shall not have been sold or disposed of by will or otherwise limited by marriage settlement, shall be divided .and enjoyed as follows, viz : — Art. 1. 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 estate absolutely.'' Art. 2. Where such intestate shall leave a widow and col- lateral heirs, or other kindred, but no issue, the widow shall be entitled to one-half part of the real estate, including the man- sion-house and buildings appurtenant thereto, for the term of her life,^ and to one-half part of the personal estate absolutely. ' In Pennsylvania, dower and curtesy are incident to toth legal and equita- ble estates. Dubs v. Dubs, 7 Casey, 149. — The wife's dower is bound by a mortgage executefl by tbe husband. Scott v. Crosdale, 2 Dall. 127. ' The widow's interest in the real estate of her deceased husband, in this State, does not come within the ordinary definition of dower, because that re- fers to the common law provision for widows ; but it is a statutory substitute for that provision, and may very well be called her statutory dower ; like dowepat common law, it is a defined interest in her late husband's lands, aris- ing at his death, and is a freehold estate. Bachman v. Chrisman, 11 Harris, 163. — Her title is bound by a judgment. Thomas u. Simpson, 3 Barr, 60 ; Shaupe v. Shaupe, 12 S. & E. 12. — And may be divested by proceedings in partition. Thomas v. Simpson, 3 Barr, 70. — But it is an estate of a peculiar character ; it has been defined to be, when charged on the lands by proceed- ings for partition in the Orphans' Court, an annuity in the nature of a rent charge. Power v. Power, 7 Watts, 212 ; Borland v. Nichols, 2 Jones, 38. — The Legislature have excluded her from the enjoyment of the land itself. Pringle v. Gaw, 5 S. & K. S36. — Except where her purport is laid off by metes and bounds, under proceedings in partition in the Orphans' Court. Bishop's Appeal, 7 W. & S. 251. — And she can neither maintain ejectment. Brattan V. Mitchell, 7 Watts, 113. — Nor be made a defendant in partition. Power v. Power, Ibid. 205. — See also, on this subject, the cases of Medlar v. Aulenbach, 2 Penn. R. 369; Deitz v. Beard, 2 Watts, 171 ; Miller u. Leidig, 3 W. & S. 458 ; Kurtz's Appeal, 2 Casey, 465 ; and Zeigler's Appeal, 11 Ibid. 173, 189. ' The widow of a tenant in tail who dies without issue, is entitled to her statutory dower of one-half of the land during her life. Smith's Appeal, 11 Harris, 9. [671 J PENNSYLVANIA. § 10. In default of knowa 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 sur- viving husband, for such estate as the intestate had therein ; and in such case the widow shall be entitled to the whole of the personal estate absolutely. § 15. 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.' An Act relating to last wills and testaments. Passed 8th April, 1833. Pamphlet Laws, 249. § 11. 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 the will, unless such testator shall in his will declare otherwise : Provided, That no- thing herein contained shall deprive the widow of her choice either of her dower,^ or of the estate or property so devised or bequeathed.^ ' The act is confined, in its operation, to lands of wMch the husband was owner at the time of his decease. Riddlesherger v. Mentzer, 7 Watts, 141 ; Leinaweaver v. Stoever, 1 W. & S. 160. — And does not extend to such as he has aliened in his lifetime. Borland v. Nichols, 2 Jones, 42. — In these, she is entitled to her dower at common law. Leinaweaver v. Stoever, 1 W. & S. 160 ; Borland v. Nichols, 2 Jones, 42. * Her choice is confined to her dower at common law in the property so de- vised to her by the will ; she cannot claim the widow's statutory share in case of intestacy. Hinnershits v. Bernhard's Executors, 1 Harris, 521-2. ' In Pennsylvania, every bequest to the wife is conditional by force of the statute ; and thus, standing as if a surrender of her dower had been expressly prescribed by the testator, she is not a volunteer, but a purchaser. Eeed/u. Reed, 9 Watts, 263. — The widow's acceptance of a devise will not bar her of her dower in land which her husband aliened in his lifetime. Borland v. Nichols, 2 Jones, 38 ; Melizet's Appeal, 5 Harris, 453-4.— But if she take, under the will, the portion devised to her in lieu of dower, her right to dower will not be revived by a voluntary breach of her tenure. Taylor v. Birming- ham, 5 Casey, 306.— In equity, the personal representatives of a widow, entitled to dower in her deceased husband's lands, may have an account of the rents and profits, although dower was not assigned in her lifetime, and no proceedings were instituted for that purpose. Paul's Executors v. Paul, 12 Casey, 270. [672] OF DOWER. A Supplement to an act entitled "An act relative to the Le Baysville Phalanx," passed March, Anno Domini one thousand eight hun- dred and forty-seven; and relative to obligors and obligees; to secure the rights of married women; in relation to defalcation; and to extend the boundaries of the borough of Ligonier. Passed 11th April, 1848. Pamphlet Laws, 536. § 11. The 11th section of the act of 8th April, 1833, entitled "An act relating to last wills and testaments," shall not be con- strued to deprive 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 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 per- sonal estate under the intestate laws aforesaid.' An Act relating to the commencement of actions; to judgments and decrees for the payment of money to the widows and children of decedents; to partitions in the Gomman Pleas; relative to penal- ties on telegraph operators; to pleadings in certain actions of debt; to actions of ejectment; to the protection of fences ; to part- nerships; to limitations of writs of entry in manors, lands, and tenements; to the exemption laws; to reports of the Supreme Court; to appeals; relating to wards, boroughs, and township officers; to the acknowledgment of deeds; and sequestration of life estates. Passed 14th April, 1851. Pamphlet Laws, 612. § 5. Hereafter' the widow' or the children of any decedent, ' The apt is not applicable to the estate of a testator who died before its passage. Hinnershitz v. Bemhard's Executors, 1 Harris, 518. — It is cumula- tive, or in addition to the act of 8th April, 1833. Melizet's Appeal, 5 Ibid. 450 ; Anderson's Appeal, 12 Casey, 476. — To enable her to make her election, she can compel the exhibition of an inventory and account of the estate by the executor. Melizet's Appeal, 5 Harris, 449-50. — She is not bound to elect until fuUy informed of the relative value of the things she is to choose between ; and if she make an election before the circumstances necessary to a judicious and discriminating choice are ascertained, she will not be bound. Anderson's Appeal, 12 Carey, 476. ' The widow is not entitled to claim $300 as against creditors whose debts, were contracted prior to the passage of this act. Davis's Estate, 1 Phlla. R. 360 ; Young's Estate, Ibid. 403 ; Gish and Henzey's Appeal, 7 Casey, 277. ' A widow who had deserted her husband more than twelve years before his 43 [ 673 ] PENNSYLVANIA, dying within this commonwealth, testate or intestate, may re- tain either real or personal property^ belonging 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 adminis- trator of such decedent to have the said property appraised^ in the same manner as is provided 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 ou execution and distress for rent;" Provided, That this section shall death, without reasonable cause, was held not to be entitled to the benefit of this act, though there was no actual divorce. Tozer v. Tozer, 2 Am. Law Eeg. 610. — So, of a wife who had lived separate from her husband for many years, under articles of separation, and had contracted a second marriage in his lifetime. Dillinger's Appeal, 11 Casey, 367. — And a wife who had lived in a foreign country, and never formed part of her husband's family here. Spier's Appeal, 2 Ibid. 233. ' The widow has no right to select real estate to the value of $300, whilst there is personal property adequate to meet the claim. Scott's Estate, 2 Phila. B. 136. — Nor is she entitled to that sum out of the proceeds of land situate in another State, brought into our courts for distribution by the executor ; the act contemplates property which can be I'etained under onr laws. Hopper's Estate, Ibid. 367. * She is entitled to this exemption, exclusive of her share under the intes- tate laws. Bowermaster v. Bowermaster, Orphans' Court, Lancaster, 27th April, 1849, MS. — And whether she elect to take under her husband's will, if there be one, or prefer her statutory rights, in the distribution of the estate. Com- pher V. Compher, 1 Casey, 31.— And whether her husband died testate or intestate, solvent or insolvent. Ibid. 5 Where the widow is executrix, she may herself appoint the appraisers. Gilmore's Estate, Orphans' Court, Philadelphia, 19th July, 1863, MS. — By the act of 8th April, 1859, this duty is to be performed by the appraisers of the other personal estate. * If the executor refuse to set apart property to the amount required, and to have it appraised, and convert the whole estate into money, the widow may maintain an action at law to recover damages for the injury sustained. Compher v. Compher, 1 Casey, 31.— Or assumpsit for money had and received to her use ; but she has no property in the goods, which will enable her to maintain trespass. Neely v. McCormiok, Ibid. 255. 6 See Purdon's Dig., tit. Execution, pi. 20.— The widow's exemption is a per- sonal privilege which may be waived ; it is waived entirely, if she neglect to demand an appraisement; or, if an appraisement be made, and she elect to retain less than $300, she waives her claim to all which she neglects to retain. A demand for an appraisement is too late after the administrator has incurred expenses in proceedings to effect a sale of the property. Davis's Appeal, 10 Casey, 256 ; Bryan's Estate, 17 Leg. Int. 157 ; Neff 's Appeal, 9 Harris, 243. [674] DIVOECE AND ALIMONY. 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.* An Act relative to the exemption of three hundred dollars, and to the widows and children of decedents. Passed 8th April, 1859. Pamphlet Laws, 425. § 1. The -widow or children of any decedent, entitled to retain three hundred dollars out of such decedent's estate, by the laws of this commonwealth, and every person entitled to the exemp- tion provided for in the act entitled "An act to exempt property to the value of three hundred dollars from levy and sale on execution or distress for rent," approved the 9th day of April, Anno Domini, 1849, 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 decedent. IT. DIVORCE AND ALIMONY. An Act concerning divorces. Passed 13th March, 1815. 6 Smith's Laws, 286. § 1. Whereas the divine precepts of the Christian religion, the promotion of the best interests of human happiness, the design of marriage, and the object of' parties entering into the ' The widow is not entitled to $300 out of the proceeds of the real estate, in preference to the payment of arrears of ground-rent which accrued after the decease of the intestate. Pepper's Estate, 1 Phila. R. 562. — Nor in preference to a judgment entered against the deceased hefore the passage of the act. Becker's Appeal, 3 Casey, 52; Neff's Appeal, 9 Harris, 243. — But she is entitled to her exemption in preference to a subsequent judgment creditor in whose favor her deceased husband had waived the benefit of the act exempting $300 of property from levy and sale on execution. Spencer's Appeal, 3 Casey, 218. ' The confirmation of the appraisement is conclusive against all the world, as a judgment in rem. Eunyan's Appeal, 3 Casey, 121. [675] PENNSYLVANIA. marriage state, require that it should continue during their joint lives; yet, where one of the parties is under a natural or legal incapacity of faithfully discharging the matrimonial vow, or is guilty of acts inconsistent with the sacred contract, the laws of every well-regulated society should give relief to the innocent and injured party : Be it enacted, That when a marriage hath been heretofore, or shall hereafter be, contracted and cele- brated between any two persons, and it shall be judged, in the manner hereinafter mentioned,' that either party, at the time of the contract, was and still is naturally impotent or incapable of procreation ; or 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 subsisting ;' or that either party shall have committed adultery;' or wilful and malicious desertion"* and absence from the habita- ' The Constitution of Pennsylvania provides that the legislature shall not have power to enact laws annulling the contract of marriage in any case where, hy law, the courts of this commonwealth are, or may hereafter be, empowered to decree a divorce. Const., Art. I. sect. 14. — When the rights of parties depend on the validity of a divorce granted by the legislature, evidence is admissible to show that the causes for which it was granted were within the jurisdiction of the courts, and, hence, that the legislature had no power to grant it. Jones v. Jones, 2 Jones, 350. ^ A prior marriage renders a second marriage of one of the parties, during the existence of the first, absolutely void. Kenley v. Kenley, 2 Yeates, 207 ; Heff- ner v. Heffner, 11 Harris, 104. — But the second wife, it seems, cannot treat her marriage as a nullity, in a civil action against her husband in fact ; she must first establish the nullity of the marriage by a judicial proceeding. Grifiith V. Smith, 3 Penn. Law. Joum. 151. — If the party injured, however, has prose- cuted the offender to conviction for bigamy, it is a sufficient dissolution of the marriage, without a divorce under this act. Harrison v. Harrison, 1 Phila. K. 389. ' A wife's insanity is no bar to a divorce for adultery committed by her when she was insane. The fact of adultery may be proved by circumstantial evidence. Matchin v. Matchin, 6 Barr, 332. — And a divorce for adultery does not bar an action for crim. con. before the divorce. Ealer v. Flomerfelt, 1 Whart. Dig. 1178, pi. 639. * The assent of one party to the other's withdrawal, whether previous or subsequent thereto, prevents such absence from being a wilful and malicious desertion ; such assent, however, is revocable, and if the absence be continued thereafter, it amounts to a desertion. Butler v. Butler, 1 Pars. 329.— A bond given by the husband to the guardians of the poor, conditioned for the support and maintenance of his wife, who had left his house, is a bar to his successful prosecution of a libel for a divorce, on the ground of wilful and malicious [676] DIVORCE AND ALIMONY. tion of the other, without a reasonable cause,' for and during the term and space of two years ; or when any husband shall have, by cruel and barbarous treatment,' endangered his wife's life, or 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; in every such case, it shall and may be lawful for the innocent and injured person to obtain a divorce from the bond of matrimony. § 2. If any person hath been or shall be injured as aforesaid, 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 desertion. Vanleer v. Vanleer, 1 Harris, 211. — The refusal of a wife to accom- pany her hushand to a foreign country is not, in itself, a wilful and malicious desertion within the meaning of the act. Bishop v. Bishop, 6 Casey, 412 ; and see Smith v. Smith, 16 Leg. Int. 356. ' The reasonable cause which will justify husband and wife quitting and abandoning each other is no other than that which would entitle the party to a divorce. Butler v. Butler, 1 Pars. 329 ; Cattison v. Cattison, 10 Harris, 275 ; Doan V. Doan, 4 Penn. Law Journ. 332. ^ The cruelty which entitles a wife to a divorce is actual personal violence, or reasonable apprehension of it ; or such a course of treatment as endangers her life or health, and renders cohabitation unsafe. Butler v. Butler, 1 Pars. 329 ; Patterson v. Patterson, 12 Eng. Law & Eq. 19, 29 ; Eshbach v. Eshbach, 11 Harris, 343 ; Richards v. Richards, 1 Grant's Cas. 389 ; Auld v. Auld, 16 Leg. Int. 317. — It is not every single touching of the wife's person in anger, at a moment of sudden exGitement or of passion, that will authorize the granting of a divorce. Richards v. Richards, 1 Grant's Cas. 389. — But violent temper, intemperate habits, and repeated indignities to the person of the wife, in par- ticular, an assault upon her with a knife, are sufficient grounds for a divorce. Cattison v. Cattison, 10 Harris, 275. — So, also, frequent intoxication of the hus- band, 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 assaulting and beating her, without provocation, though but once, will entitle the wife to a divorce. Doan v. Doan, 4 Penn. Law Journ. 332. 3 A course of hximiliating insults and annoyances, calculated to destroy the life or health of the wife, although unaccompanied with actual violence, is sufficient cause for a divorce. Butler v. Butler, 1 Pars. 329 ; Patterson v. Patterson, 12 Eng. Law & Eq. 30, 31. — But the refusal of a husband to cohabit with his wife is not sufficient. Eshbach v. Eshbach, 11 Harris, 343. * The jurisdiction is exclusively in the Common Pleas. Light v. Light, 17 S. & R. 273. [677] PENNSYLVANIA. next term, setting forth particularly and specially' the causes of his or her complaint, and shall, together with such petition or libel, also exhibit an affidavit, 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 separated 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 subsequent Court of Common Pleas, to answer the said petition or libel ; and upon due proof, at the return of the said subpoena, 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 same, the said court shall and may make such preparatory rules^ and orders in the ' It is not sufficient, under the act of 8th. May, 1854, to allege, in general terms, that the marriage was procured hy fraud, force, and false representa- tions. Hoflfman v. Hoffman, 6 Casey, 417. — In a libel for adultery, it is not indispensably necessary to name the particeps criminis. Garrat v. Garrat, 4 Yeates, 244. — But if the libel charges adultery with A. B. and others unknown, the proof will be confined to intercourse with A. B., unless a special notice be given, before the trial, of the names, if known, and times, places, and circuln- stances of adultery with others. Garrat v. Garrat, 4 Yeates, 244; Light v. Light, 17 S. & R. 273 ; Ewing v. Ewing, 2 Phila. R. 371 ; HofEman v. Hoffman, 6 Casey, 417 ; Clark v. Clark, 1 Whart. Dig. 1179, pi. 651.— So, notice ought to be given that, between two specific dates, acts of cruelty, &c., are intended to be proved. Steele v. Steele, 1 Dall. 409 ; Butler v. Butler, 1 Pars. 329. — If, however, the respondent go to trial without demanding such specification, he will be presumed to have waived it. Breinig v. Breinjg, 2 Casey, 161 ; Cattison v. Cattison, 10 Harris, 275. ' A libel is defective which is not sworn to in the form prescribed by this act ; an affidavit that the facts therein set forth are true, is not sufficient. Hoffman v. Hoffman, 6 Casey, 417. ' The law requires actual personal service ; it contemplates an adverse pro- ceeding ; and therefore an acceptance of service cannot be recognized, but will be deemed evidence of collusion. Ecoles v. Eooles, Common Pleas, Philadel- phia, 2d July, 1853, MS. * A rule to take depositions may be granted before the return of the subpoena. Anon., 1 Yeates, 404. — But depositions on the part of the respondent below cannot be read on hearing of an appeal. Elmes v. Elmes, 9 Barr, 166. [678] DIVORCE AND ALIMONY. cause, that the same may be brought to a hearing, and deter- mined 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 examination of witnesses, or interrogatories, exhibits, or other legal proofs, had either before or at the hearing. § 3. If, upon the return of the said subpcena, 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 personally in manner aforesaid, and if so served, the same proceedings shall be had as are directed and authorized in the second section 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. § 4. When either party shall have been convicted and sen- tenced for adultery, the records of the said conviction shall be received in evidence on any application for a divorce by the injured party.' § 5. All marriages within the degree of consanguinity or affinity, according to the table established by law,^ are hereby ' See Butler v. Butler, 1 Pars. 331-3. ' See Harrison v. Harrison, 1 Phila. R. 389. ' The table of forbidden degrees established by tbe act of 1705, and re- enacted by that of 31st March, 1860, is as follows : — [679] PENNSYLVANIA. declared void to all intents and purposes; and it shall and may be lawful for the Courts of Common Pleas of this common- wealth, or any of them, to grant divorces from the bonds of matrimony in such cases; and the parties shall be subject to the like penalties as are contained in the act against incest: but when any of the said marriages shall not have been dissolved during the lifetime of the parties, the unlawfulness of the same shall not be inquired into after the death of either the husband or wife. § 6. If any husband or wife, upon any false rumor, in appear- ance well founded,' of the death of the other (when such other has been absent for the space of two whole years), hath married or shall marry again, he or she shall not be liable to the pains of adultery f but it shall be in the election of the party remain- Degrees of Consanguinity. A man may not marry his mother. " " his father's sister. " " his mother's sister. " " his sister. " " his daughter. " " the daughter of his son or daughter. A woman may not marry her father. " " her father's hrother. " " her mother's hrother. " her brother. " " her son. " " the son of her son or daughter. Degrees of Affinity. A man may not marry his father's wife. " " his son's wife. " " his son's daughter. " " his wife's daughter. " the daughter of his wife's son or daughter. A woman may not marry her mother's husband. " " her daughter's husband. " " her husband's son. " " the son of her husband's son or daughter. ' To justify a second marriage, there must be a general report that the husband or wife died at some particular place, was shipwrecked, or lost his or her life in some way which the report specifies. Commonwealth v. Smith, 1 Whart. Dig. IVll, pi. 622. = The second marriage is, nevertheless, null and void. Kenley v. Kenley, 2 Yeates, 207. [680] DIVORCE AND ALIMONY. icg unmarried, at his or her return, to insist to have his or her former wife or husband restored, or to have his or her own marriage dissolved, and the other party to remain with the second husband or wife; and in any suit or action, instituted for this purpose within six months after such return, the court may and shall sentence and decree accordingly. § 7. In any action or suit commenced in the said court for a divorce for the cause of adultery,' if the defendant shall allege and prove that the plaintiff has been guilty of the like crime; or has admitted the defendant into conjugal society or embraces after he or she knew of the criminal fact; or that the said plaintiff (if the husband) allowed of the wife's prostitution, or received hire for them, or exposed, his wife to lewd company, whereby she became ensnared to the crime aforesaid, it shall be a good defence and a perpetual bar against the same. § 8. It shall and may be lawful for the said courts, after hearing any cause commenced 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 de- creeing a divorce and separation from the nuptial ties or bonds of matrimony, or that the marriage is null and void; and 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.^ § 9. The wife or husband who shall have been guilty of the crime of adultery shall not marry the person with whom the ' Adultery ty the husband, after a separation, is no bar to a divorce on the ground of desertion. Kiatine v. Eistine, 4 Eawle, 460. — It seems, that con- donation is no bar to a divorce, for cruel and barbarous treatment. Ilollister V. HoUister, 6 Barr, 449 ; Nathans v. Nathans, 2 Phila. E. 393. " There is no difference in principle between a dissolution of the marriage by death and by sentence of the law. Flory v. Becker, 2 Barr, 472. — In New York, a divorce dissolving the marriage contract on the ground of the adultery of the husband, does not deprive the wife of her dower in his real estate. Wait V. Wait, 4 Comst. 95. — The court has power to vacate a decree of divorce obtained by fraud, although a marriage has been subsequently contracted on the faith of the decree, and issue born. Allen u. Maclellan, 2 Jones, 328 ; Smith V. Smith, 16 Leg. Int. 356. [681] PENKSYLVANIA. said crime was committed, during the life of the former wife or husband; but nothing herein contained shall be construed to extend to, or affect, or render illegitimate, any children born of the body of the wife during coverture. § 10. When any woman shall be divorced as aforesaid, and shall afterwards 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 hereby declared to be incapable to alienate, directly or indirectly, any of her lands, tenements, or heredita- ments; but all deeds, wills, appointments, and conveyances thereof shall be absolutely void and of none effect, and after her death the same shall descend and be subject to distribution in like manner as if she had died seised thereof intestate. § 11. No person shall be entitled to a divorce from the bond of matrimony, by virtue of this act, who is not a citizen of this State, and who shall not have resided therein at least one whole year previous to the filing his or her petition or libel. § 12. The said court may award costs to the party in whose behalf the sentence or decree shall pass, or that each party shall pay his or her own costs, as to them shall appear to be reason- able and just.^ § 13. Either of the parties, in any suit or action now depend- ing, 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 re- ' Whether the hushand he libellant or respondent, he may be compelled to pay the expenses of the wife in prosecuting or defending the suit. Melizet v. Melizet, 1 Pars. 78. — And also an allowance for her support during the pend- ency of the proceedings. Graves v. Cole, 7 Harris, 171-4 ; Kline v. Kline, 1 Phila. R. 383 ; Auld v. Auld, 4 Cranch, C. C. 84 ; Patterson v. Patterson, 12 Eng. Jjaw & Eq. 26, 36 ; D'Arusmont v. D'Arusmont, 4 Am. Law Joum. 110-122 ; Harris v. Harris, 1 Phila,. R. 442 ; Denton v. Denton, 1 Johns. Ch. 364^5.— If the husband be respondent, such, order will be enforced by attachment ; if libellant, by staying proceedings until it be complied with. But, in order to obtain an attachment, it must be shown that he is of ability to pay. Ormsby V. Ormsby, 1 Phila. R. 578-9 ; Walker v. Walker, 1 Curteis, 564.— Where a libel, at the suit of the wife, is dismissed with costs, a, fieri facias may issue against the next friend for the costs. South v. South, Pittsburg Leg. Joum. 9th December, 1854. — The husband cannot be decreed to pay the costs on a decree in his favor, where he is successful in obtaining a divorce. Shoop's Appeal, 10 Casey, 233. * A writ of error will not lie. Miller v. Miller, 3 Binn. 30 ; Allen v. Maolel- [682] DIVORCE AND ALIMONY. cognizance' before one of the judges of the Court of Commop Pleas before whom the cause shall have been tried, with at least one good surety, in a sum double the amount of the costs in- curred, 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 transmit the record, with their judgment thereon, with all the proceedings, as in other cases, to the court below, to be carried into effect. A Supplement to "An act Gonceming divorces." Passed 26th Feb- ruary, 1811. 6 Smith's Laws, 405. § 1. If any husband shall maliciously either abandon his family, or turn his wife out of doors, or by cruel and barba- rous treatment' endanger her life, or offer such indignities to her person as to render her condition intolerable, or life bur- densome, and thereby force her to withdraw from his house and family, it shall be lawful for the Court of Common Pleas of the respective counties, upon complaint and due proof thereof, made in the manner prescribed in the act to which this is a supple- ment,* to grant the wife a divorce from bed and board; and also to allow her such alimony' as her husband's circumstances will Ian, 2 Jones, 332. — An appeal lies from a decree in pursuance of a verdict ; but the Supreme Court will not re-try the matters of fact decided by the jury. Andrews v. Andrews, 5 S. & R. 374 : see Moore v. Moore, 22 Texas, 237. ' If there be no recognizance, the appeal will be dismissed. Brom v, Brom, 2 Whart. 94. ' An affidavit that the appeal is not intended for delay, must also be filed. Brentlinger v. Brentlinger, 4 Rawle, 241. ' The refusal of a foreigner who arrives and becomes domiciled here, to re- ceive his wife who foUows him hither, is a virtual turning her out of doors, and the court may decree alimony. McDermott's Appeal, 8 W. & S. 251. * The wife may proceed under either act. Light v. Light, 1 Watts, 263 ; Smith V. Smith, 3 S. & R. 248.— And on a libel for a divorce from the bonds of matrimony and for alimony, on the ground of cruelty, the court may decree a divorce from bed and board and alimony. KlingenJ;!erger v, Klingenberger, 6 S. & R. 187. ^ Alimony is not the separate property of the wife ; and arrears cannot be recovered at her decease, by her representatives, unless the husband, by with- holding judgment, has forced her to contract debts. Clark v. Clark, 6 W. & S. 85. — A disclaimer of alimony is not a perpetual bar to future applications. MoKarracher v. MoKarracher, 8 Yeates, 56. [683] PENNSYLVANIA. admit of, so as the same do not exceed the third part of the an- nual profit or income of his estate, or of his occupation and labor; which shall continue until a reconciliation shall take place,' or until the husband shall, by his petition or libel, offer to receive and cohabit 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 protection of the court, discharge and annul the same, according to their discre- tion ; and if he fail in performing his said offers and engage- ments, the former sentence or decree may be revived and en- forced, and the arrears of the alimony ordered to be paid.^ An Act to limit the time of appeal in cases of divorce, and of the settlement of the accounts of guardians, executors, and adminis- trators. Passed 8th February, 1819. T Smith's Laws, 151. § 1. No appeal shall lie from the final sentence or decree of the Court of Common Pleas, or other court having competent jurisdiction, in cases of divorce, after the expiration of one year from the time of pronouncing the said final sentence or decree." ' If the wife return voluntarily and coliabit with her husband, the decree is virtually suspended. Tiffin v. Tiffin, 2 Biuu. 202. — But if the husband, by repetition of the offence, again force the wife to withdraw from his domicile, the court will decree the arrears of alimony to be paid to her, from the time of such withdrawal. Nathans v. Nathans, 2 Phila. R. 393. — Condonation is not a bar to a divorce u mensa et thoro, for ill-treatment. HoUister v. Hol- lister, 6 Barr, 449. '' Such an offer will not prevent a decree ; it can only be considered after- wards on the question of suspending the alimony. Thompson v. Thompson, 2 Dall. 128 ; s. c, 1 Yeates, 78 ; Anon., 1 Whart. Dig. 1179, pi. 650.— The hus- band has not an absolute right to annul, the decree for alimony by such offer ; it is matter in the sound discretion of the court. Breiuig v. Breinig, 2 Casey, 161. ' An appeal lies to the Supreme Court from a decree under this act. Eobbarts ti. Robbarta, 9 S. & R. 191. — But the amount of alimony decreed by the court is not the .subject of review ; that is a question for the discretion of the court below. Breinig v. Breinig, 2 Casey, 161. ' But the court below may vacate the decree, if It were obtained by fraud and imposition. Allen v. Maolellan, 2 Jones, 328. [684] DIVOKCE AND ALIMONY. An Act to convey certain real estate, and for other purposes. Passed 13th April, 1843. Pamphlet Laws, 233. § 8. In cases where the wife is lunatic or non compos mentis, the Courts of Common Pleas of this commonwealth are invested with authority to receive a petition or libel for a divorce, which may be exhibited by any relative or next friend of the wife ; and the affidavit required by the act concerning divorces may be made, in the manner required by the act, by such relative or next friend ; and all the provisions of the several acts relating to divorces shall apply to all applications made under the direc- tions of this section : Provided, That the fact of the lunacy of the wife, and such circumstances as may be sufficient to satisfy the mind of the court as to the truth of the allegation, shall be set forth in the petition ; and upon the hearing of the case be- fore the court, or upon an issue to be tried by the jury, the ques- tion of lunacy, with every other matter of fact that is affirmed by one party and denied by the other, shall be heard and inves- tigated in the manner prescribed by the provisions of the seve- ral acts concerning divorces. A further Supplement to "An act concerning divorces." Passed 15th April, 1845. Pamphlet Laws, 455. ^ § 1. Upon a decree a mensa et thoro, and the allowance of alimony, shall have been made by any of the Courts of Com- mon 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 hereby de- clared to be, and shall remain a lien* on the real estate of such respondent, 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 entered, it shall be the duty of the pro- thonotary of said court, upon affidavit by the libellant that any ' The lien is a charge in the land for full compliance with the decree, and renders it chargeable with payment of the alimony, as it accrues, from time to time^ and it would pass to a purchaser incumbered with such charge. Melizet v. Melizet, 4 Penn. Law Joum. 381. [ 685 ] PENNSYLVANIA, payment 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 executions upon judg- ment. 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 the said alimony, according to the terms of said decree; the said security to be either by a bond, with sufficient sureties, or mortgage on real estate, taken in the name of the commonwealth, 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. § 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.' An Act to legalize divorces granted by the courts. Passed 2'7th Feb- ruary, 1845. Pamphlet Laws, 169. § 1. In all cases where the divorces have been decreed by the courts of this commonwealth 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 in this commonwealth, and the libellants have re- sided therein one year or more previous to the application therefor, although, at the time of the commission of such of- fence, the libellants and respondents may have been residents ' A defendant sentenced to impriaonment for non-oomplianoe witi a decree of alimony, is not entitled to be discharged under the insolvent laws. Heise V. Heise, Common Pleas, Lancaster, 27tli December, 1S48, MS. [686] DIVORCE AND ALIMONY. of another State ■} Provided, That in eases where the respon- dents resided out of this commonwealth at the time of the pre- ferment of the libels, personal notice shall have been given to them. An Act to authorize John Kauffman, trustee of the German Reformed congregation worshipping at Eimmerling's church, of Lebanon County, to sell and convey certain real estate ; and to authorize the rector, church wardens and vestrymen of the Episcopal Church of St. Paul, in the city of Philadelphia, to sell and convey real es- tate; aidhorizing the directors of the public schools of the first school district of Pennsylvania to appoint visitors of night schools ; relative to actions of ejectment; extending the jurisdiction of courts in cases of divorce ; and fiadng the time of holding the courts in Butler County. Passed 26th April, 1850. Pamphlet Laws, 590. § 5. The jurisdiction of the several Courts of Common Pleas of this commonwealth shall hereafter extend to all cases of di- vorce from the bonds of matrimony, for the cause of wilful, malicious and continued desertion 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 expiration of two years from the time at which such desertion took place. § 6. 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, notwith- standing the parties were, at the time of the occurrence of said ' Our courts have no juTisdiotion to decree a divorce, where the marriage and alleged offence took place in a foreign country, and the defendant never was within the jurisdiction. Bishop v. Bishop, 6 Casey, 412 ; Dorsey v. Dorsey, 7 Watts, 349. — They can only entertain jurisdiction on the ground of an offence committed out of the commonwealth, in cases in which the parties have once been here domiciled, and the domicile of the injured party still continues, or has been regained. Ibid. [687] PENNSYLVANIA. 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 resided therein for the term of one year, as provided for by existing laws. A further Supplement to the act entitled "An act concerning di- vorces." Passed 8th May, 1854. Pamphlet Laws, 645. § 1. In addition to the cases now provided for by law, it shall be lawful for the Courts of Common Pleas of this commonwealth to grant divorces in the following cases :— I. Where the alleged marriage was procured by fraud, force, or coercion, and has not been subsequently confirmed by the acts of the injured party.^ II. Where either of the parties shall have been convicted of a felony, and sentenced by the proper court either to the county prison of the proper county, or to the penitentiary 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. III. Where the wife shall have, by cruel and barbarous treat- ment, rendered the condition of her husband intolerable, or life burdensome : Provided, That in cases of divorce under tWs act, if the application shall be made on the part of the husband, the court granting such divorce shall allow such support or alimony to the wife as her husband's circumstances will admit of, and as the said courts may deem just and proper.' § 2. The proceedings in cases embraced within the provisions of this act shall be the same as those prescribed by the act en- I This only applies to parties who were so domiciled in some other of the United States. Bishop v. Bishop, 6 Casey, 412. * A libel averred that the marriage was procured by fraud and false repre- sentations, and that such representations were not, at the time, known to be false by the libellant ; the proof was, that the respondent had alleged herself to be pregnant by the libellant, and that she had been delivered of a child within nine months after the marriage ; it was held, that such representation, whether true or false, was not ground for a divorce under this act. Hoffman 1;. Hoffman, 6 Casey, 417. 3 Under this act, where the husband obtains a divorce on the ground of cruelty on the part of the wife, he may be decreed to pay alimony. Shoop's Appeal, 10 Casey, 233. [688] DIVOECE AND ALIMONY. titled "An act concerning divorces," approved the 13tli day of March, 1815, and the several acts supplementary thereto, with the like right of appeal as is therein given; the word citizen, used in the 11th section of the said act, shall not be so construed as to exclude any party who shall for one year have had a bond fide residence within this commonwealth, previous to the filing of his or her petition or libel.' An Act extending the jurisdiction of the courts of this commonwealth in cases of divorce. Passed 9th March, 1855. Pamphlet Laws, 68. § 1. It shall be lawful for the several Courts of Common Pleas in this commonwealth to entertain jurisdiction of all cases of divorce from the bonds of matrimony, for the cause of per- sonal 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, 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 the existing laws of this commonwealth. A Supplement to "An act extending the jurisdiction of the courts of this commonwealth in cases of divorce," passed the ninth day of March, one thousand eight hundred and fifty-five. Passed 22d April, 1858. Pamphlet Laws, 450. § 1. 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 occurrence of said cause domiciled in any other State or country: Provided, That no application for such di- ■ The removal and domicile of the husband and wife in another State is no bar to proceedings for divorce on the part of the wife, for causes occurring in this State, prior to the removal, if she has returned and resided in the State one year previous to the filing of the libel. Hollister v. HoUister, 6 Barr, 449. 44 [ 689 ] PENNSYLVANIA. vorce 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 by the existing laws of this commonwealth. An Act relating to void marriages. Passed 14th April, 1859. Pamphlet Laws, 647. § 1. In all cases where a supposed or alleged marriage shall have been contracted, which is absolutely void by reason of one of the parties thereto having a husband or wife living at the time, the Courts of Common Pleas shall have power to decree the said supposed or alleged marriage to be null and void, upon the application of an innocent or injured party; and the jurisdiction shall be exercised, and proceedings conducted, according to the principles and forms which are or shall be prescribed by law for cases of divorce from the bond of matri- mony. [690] ILLINOIS. DOWER.i § 1. A WIDOW shall be endowed of one-third part of all the lands whereof her husband was seised of an estate of inherit- ance at any time during the marriage, unless the same shall have been relinquished in legal form. Equitable estates shall be subject to the widow's dower, and all real estate of every description contracted for by the husband in his lifetime, the title to which may be completed after his decease.^ ' Approved 3d March, 1845, 1st vol. Purple's Digest, p. 494, Chap. 2, Dower. ' 1. A widow can only be endowed of estates of inheritance, and a pre-emp- tion right is not such an estate. The statute making equitable estates sub- ject to dower, refers to equitable estates of inheritance only. In a petition for dower, the words "owner and proprietor" are insufficient, as they do not technically, nor by common usage, describe an estate in fee simple or fee tail. — Davenport v. Fanar, 1 Scammon, 315. 2. At the common law, dower is the tJiird part of all the lands, for life, whereof the husband, during coverture, has been seised of such estate as the children by the wife might possibly have inherited. Marriage, seisin and the death of the husband, are all necessary to the consummation of dower. Until the death of the husband, dower is only an interest attaching to the land by virtue of marriage and seisin. — Sisk v. Smith, 1 Gilman, 503 ; Northout v. Whipp, 12 Ben. Monroe, Ky. Rep. 67. Such a potential right in or to dower is salable and vendible in law like other interests. See Bullard v. Briggs, 7 Pickering, and note to Sugden on Vendors. It will justify a suit in certain cases before the husband's death to preserve it. — Swaine v. Ferine, 5 Johnson, Chy. Rep. ; Petty v. Petty, 4 Ben. Monroe ; Wallace v. Marshall, 9 Ben. Monroe, Ky. Rep. 158. But a compromise of such an interest on behalf of infants, suitors for cash, should be exercised with great caution. As to a criterion of value, see oases of Davis V. Logan, 5 Ben. Monroe, 342; King «. King, 15 Ills. 187. It is still a common law right here, but extended, however, by statute to two cases at least, making the widow of an alien dowable as well as subject- ing all equitable rights of inheritance of the husband to dower. — Sisk v. Smith, 1 Gilman, 513. [691] ILLINOIS. § 2. The widow of an alien shall be entitled to dower of the estate of her husband in the same manner as if such alien had been a native-born citizen of the United States. § 3. When a person seised of an estate of inheritance in land shall have executed a mortgage of such estate before marriage, his widow shall nevertheless be entitled to dower out of the lands mortgaged as against every person, except the mortgagee, and those clainiing under him.^ § 4. Where a husband shall purchase lands during coverture, and shall mortgage such lands to secure the payment of the pur- chase money thereof, his widow shall not be entitled to dower out of such as against the mortgagor or those claiming under him, although she shall not have united in such mortgage ; but she shall be entitled to her dower as against all other persons.* 3. In all oases where the husband is seised of an estate in lands as that the issue of the wife may inherit, if any she have, as heir to the husband, the widow is entitled to dower, whether any issue be born or not. — Northout V. Whipp, 12 B. Monroe, Ky. Rep. 67. 4. The wife is not entitled to dower in lands where the husband is entitled to the remainder in fee after the termination of an estate for life, and dies before the termination of the life estate. — Arnold v. Arnold, 8 B. Monroe, Ky. Rep. 204 ; Northout v: Whipp, 12 lb. 67. 5. Widow's right to dower depends on whether the seisin of the husband was beneficial to himself, or only in trust for others, and not on the time the title remained in him. — Tevis v. Steele, 4 Monroe, Ky. Rep. 341. She is not entitled to dower in land for whioh her husband held a bond or equitable title merely, but had transferred it before his death. — Hamilton v. Hughes, 6 J. J. Marshall, 582. Nor where he had sold by parol or bond before his marriage. — Oldham v. Sale, I B. Monroe, 77 ; Gaines v. Gaines, 9 B. Monroe, 299 ; Lawson v. Morton, 6 Dana, 472. ' This is an extension of the oommon law right of dower. — Sisk v. Smith, 1 Gilman, 506. See ease as to common law right of dower, Allsbury v. Hawkins, 9 Dana, Ky. Rep. 177. ' 1. Where the vendee receives a conveyance, and gives his notes for the payment of the consideration of the land purchased, and instantly executes a mortgage to secure its payment, the wife of the vendee is entitled to dower upon his death, though the money due upon the mortgage remains unpaid. — ; McClnre v. Harris, 12 B. Monroe, Ky, Rep. 266. 2. Generally a vendor's lien is to be first satisfied before vendee's widow is entitled to dower. But where the vendee executes his notes to the creditors of the vendor, receives a conveyance and gives a mortgage upon the land pur- chased, and upon other property, the widow of vendee is entitled to dower though the mortgage debts 6c not paid. — McClure v. Harris, 12 B. Monrop, Ky. Rep. 266. [692] DOWER. § 5. "WHen, is cases specified in the two preceding sections, the mortgagee, or those claiming under him, shall, after the death of such husband, cause the land mortgaged to be sold, either under a power contained in the mortgage, or by virtue of the judgment or decree of a court, and any surplus shall re- main, after the payment of the moneys due .on such mortgage and the costs and charges of sale, such widow shall be entitled to the interest or income of one-third part of such surplus, for life as her dower. § 6. A widow shall not be endowed of lands conveyed to her husband by way of mortgage, unless he have acquired an abso- lute estate during the marriage. § 7. When an estate in land shall be conveyed to a person and his intended wife, or to such intended wife alone, or to any person in trust for such person and his intended wife, or in trust for such intended wife alone, for the purpose of creating a jointure for such intended wife, and with her assent, to be taken in lieu of dower; such jointure shall be a bar to any right or claim for dower of such wife, in any land of her hus- band. § 8. The assent of the wife to such jointure shall be evinced, if she be of full age, by her becoming a party to the convey- ance, by which it shall be fettled ; if she be an infant, by her joining with her father or guardian in such conveyance. § 9. If before her marriage, but without her assent, or if, after her marriage, land shall be given or assured for the jointure of a wife in lieu of dower, she shall make her election, whether she will take such jointure or whether she will be endowed of the lands of her husband, but she shall not be entitled to both. It is error to bar a woman of dower to land and a mortgage where she did not sign it. — Gold v. Kyan, 14 Ills. Rep. 53. Where the lands of H. were sold under execution, and before the time for redemption expired, H. and wife conveyed, by mortgage to B., who failed' to redeem ; H. died afterwards, and his widow claimed her dower, and sustained it because the estate mortgaged was extinguished merely by the failure to re- deem, and did not merge in or enure to the benefit of the execution sale, and could not operate upon the contingent right of dower alone. — Blair v. Harrison, 11 Ills. 384. It was the duty of the mortgagee to have redeemed from the execution sale, or make good the loss at any rate. [693] ILLINOIS. § 10. Every devisor of land, or any estate therein, by will shall bar her dower in lands, or of her share in personal estates unless otherwise expressed in the will, but she may elect whether she will take such devise or bequest, or whether she will renounce the benefit of such devise or bequest, and take her dower in the lands, and her share in the personal estate of her husband.^ § 11. Where a woman shall be entitled under either of the two last preceding sections, she shall be deemed to have elected to take each jointure or devise unless within one year after the authentication or probate of the will, she shall deliver or trans- mit to the Court of Probate of the proper county, a written re- nunciation, which may be in the following form, to wit:— " I, A. B., widow of C. D.,- late of the county of and State of ' ■, do hereby renounce and quit all claim to the benefit of any jointure, bequest, or devise made to me, by the last will and testament of my said deceased husband, which has been exhibited and proved according to law (or otherwise as the case may be), and I do elect to take in lieu thereof my dower or legal share of the estate of my said husband." Which said letter of renunciation shall be filed in the office of the probate justice of peace, and shall operate as a complete bar against any claim which said wi^ow may afterwards set up, to any provisions which may have been thus made for her in such jointure, or in the will of such testator in lieu of dower; and by thus renouncing all claims, as aforesaid, such widow shall, thereupon, be entitled to dower in the lands, or share in the personal estate of her husband.^ § 12. If any woman shall beldivorced from her husband for the fault or misconduct of such husband, except where the marriage was void from the beginning, she shall not thereby lose her dower, nor the benefit of such jointure; but if such divorce is obtained for the fault of the wife, she shall forfeit the ' The devise of land, or Request of personal estate to the wife, unless other- wise expressed in the will, testament, or codicil, hars dower, unless voluntarily relinquished Toy her as required by the statute. — Sisk v. Smith, 1 Oilman, 509-10. ^ As to an election, see case of McAUster v. Brand, 11 Ben. Monroe, Ky. Rep. 375, and that chapter anterior. [ 69i ] DOWEE. same; and when a divorce, is obtained for the fault and mis- conduct of the husband, he shall lose his right to be tenant by curtesy in the wife's lands, and also an estate granted therein by the laws of this State.' § 13. If the wife voluntarily leave her husband, and commit adultery, she shall forever be barred her dower, and the benefit of any suck jointure, unless her husband be voluntarily recon- ciled to her, and puffer her to dwell with him.^ §14. No act, deed, or, conveyance, performed or executed by the husband, without the assent of his wife, evinced by the acknowledgment thereof, in the manner required by law, shall pass the estate of a married woman ; and no judgment or decree confessed or recovered against him, and no laches, default, covin, forfeiture, or crime of the husband, shall prejudice the right of his wife to her dower or jointure, or preclude her from the recovery thereof, if otherwise entitled thereto.^ ' 1. Although a marriage within the Levitioal degrees is voidable, yet it is not ' void ; and not being annulled by a sentence of separation during the lifetiiae of the husband, it is made good for all civil purposes, and the wife surviving is entitled to dower. — Bonham v. Badgley, 2 Gilman, 628. 2. There can be no valid claim for dower' where the supposed husband was of unsound mind at the time of the marriage ceremony, and continued so' until death. — Anne Jenkins v. Jenkins's Heirs, 8 B. Monroe, 103. 3. To defeat dower upon the ground of insanity of the husband at the time of marriage, it is not necessary that the marriage should have been declared void in his lifetime by a decree. — Jenkins v. Jenkins, 2 Dana, 105 ; Donelly v. Donelly, 8 Ben. Monroe, 116. 4. Husband's interest in lands of wife is barred by divorce. — Howey v. Goings, 13 111. Rep. 308. See Oldham v. Turner, 5 Dana's Ky. Rep., where it was held that in case of divorce the 'husband was barred of his eurteiy, as it' never could be consummated by her dying, leaving him surviving as hus- band ; until her death it was a mere inchoate right, and a divorce severed and barred it. ^ Divorce a vinculo matrimonii, the only one known to the statute, when granted for the fault or misconduct of the wife, destroys her right of dower. — Clark V. Lott, 11 Ills. 114. "■ ^ The dower of the wife is not defeated by a sale on judgment and execu- tion against the husband, or otherwise than by her own assent or misconduct. — Sisk V. Smith, 1 Grilman, 508. And although, as against the husband, it may be sold under execution, yet may not the wife still in equity assert her equity for support and enjoyment thereof in the lifetime of her husband? For the wife's equity to a suitable provision for the maintenance of herself and her children out of her separate real and personal estate either descended or devised to her during coverture, is [695] ILLINOIS. § 15. If a husband die, leaving a widow, but no children nor descendants of children, such widow may, if she elect, have, in lieu of her dower in the estate of which her husband died seised, whether the same shall have been assigned or not, absolutely and in her own right, as if she were sole, one-half of all real estate which shall .remain after the payment of all just debts and claims against the deceased husband: Provided, That in case dower in such estate shall have been already assigned, she shall make such new election, within two months after being notified of the payment of such debts and claims.' good and valid. It prevails equally against the husband or any assignee of his, or any sale made or lien created hy him even for a valuable consideration or in payment of a just debt ; and whether a suit in protection of that equity be instituted by the wife, or by any other person on her behalf. A suit to protect that equity may be instituted by the wife against a creditor at law, and this equity, if the case be deemed to require it, may be extended to the whole of the real and personal estate devised or descended to the wife. — Haviland V. Bloom, 6 J. C. Rep. 186 ; Kenney v. Udall, 5 J. C. Rep. 464. See Whitesides u. Dorris, 7 Dana, Ky. Rep. 108 ; Marshal v. Daniel, 8 B. Monroe, 175. Even where the wife was possessed of land, and joined in a sale with the husband, who took notes for the purchase-money, and became insolvent before the purchase-money was paid, the equity to a settlement on behalf of the wife was sustained. — Lay's Ex'r v. Brown, 13 B. Monroe, 297. This equity of the wife rests upon the broad ground that it is her estate in fact in a court of equity. — Hays v. Blanks, 7 Ben. Monroe, 348. See Griffith v. Coleman, 5 J. J. Marshall, 600. ' 1. The statute of descents of this State provides that where a man dies intestate, leaving a widow, but no child or children, nor descendants of child or children, the widow shall inherit one-half his real estate and all his per- sonal estate, and this does not at all affect her right to dower in the other half of the land.— Tyson v. Postlethwaite, 13 Ills. Rep. 732. 2. In suits for dower we should look to the provisions of the 34th chapter (Revised Statutes of 1845) for the governing rule ; and by the 15th section thereof the widow would be entitled to dower without any election whatever, which accords with the provisions of the 46th section of 109th chapter. In the absence of an election, the widow is entitled to dower. — Tyson v. Postle- thwaite, 13 Ills. 739. 3. Where a man dies intestate, leaving a widow, but no descendants, she inherits, as heir, one-half the real estate of which her husband died seised, remaining after payment of debts, and all the personalty ; and, besides, she is entitled to her dower out of the other half of the real estate. — Tyson v. Postlethwaite, 13 nis. 730. 4. Where the wife joins in a conveyance that is set aside for fraud by cre- ditors, she is entitled to her dower after the death of her husband. — Summers V. Babb, 13 Ills. 483. [696] DOWER. § 16. If a husband, seised of an estate of inheritance in landsi exchange it for other lands, his widow shall not have dower of both, but shall make her election as hereintofore provided, to be endowed of the lands given, or of those taken in exchange; and if such election be not evinced, bj the commencement of proceedings for the recovery and assignment of her dower of the lands in exchange, within one year after the death of her husband, she shall have elected to take her dower of the lands received in exchange.' § 17. It shall be the duty of the heir at law, or other person, having the next estate of freehold or inheritance in any lands or estates of which the widow is entitled to dower, to lay off and assign such dower as soon as practicable after the death of the husband of such widow. 5. But where A., being a bona fide purcliaser, having an unrecorded convey- ance of land; which had been levied upon by attachments ripened into judg- ments as the property of other parties, the conveyance of which in former grantees was fraudulent, and bill was filed to set aside such conveyances in favor of the judgment creditors in attachment, it was held that A. never having reduced the land into possession, nor recorded his title prior to the filing of the bill to set aside the conveyances, his wife was not dowable of such land. — Stribling v. Koss, 16 Ills. Eep. 122. 6. The right to dower is liable to be defeated by every subsisting claim or incumbrance existing prior to the husband's title, and which would have defeated his seisin. — lb. 122. 7. A widow is not dowable of land, unless her husband was, during mar- riage, seised of an estate of inheritance therein. — lb. 122. 8. Whenever the husband dies possessed of and entitled to a conveyance, and the heirs, if any, would be entitled, the widow is entitled to dower in the same. — Brewer v. Vanarsdale, 6 Dana, Ky. Rep. 204. A widow's dower cannot be affected by the lien created by our statute for the benefit of mechanics, &o., but she is entitled to dower in all the real estate of which her husband was seised during coverture, unless she has released it in the form prescribed by law, except where a lien is created for the purchase-money at the time the husband became seised. — Shaeff'er v. Weed, 3 Gilman, 513. Cohabitation, reputation, and acknowledgment are sufficient proof of mar- riage to entitle a free woman of color to dower in her husband's estate. — Stoner v. Boswell's Heirs, 3 Dana, 233. Where.a husband dies seised of a ferry, the widow shoiild be endowed of one-third of the profits, or of the use of it for one-third of the time ; an allot- ment of one-fifth of the ferry is nugatory, because it is an incorporeal here- ditament, and indivisible. — Stevens's Heirs v. Stevens, 3 Dana, 373. ' A woman shall not be endowed of both of the land given in exchange and of that taken in exchange.— Stevens ». Smith, 4 J. J. Marsh. 64. [697] ILLINOIS. § 18. If such heir, or other person, shall not within one month next after decease of said husband assign and set over to the widow of the deceased, to her satisfaction, her dower in and to all lands, tenements, and hereditaments whereof by law she is made dowable, according to the true intendment of the law, then such widow may sue for and recover the same, in the manner hereinafter prescribed, against sup^h heir or other person having the next estate of freehold or inheritance, or tenant in possession, or other person or persons claiming right of pos- session in said estate. § 19. Every widow claiming dower may file her petition in chancery in the Circuit Court of the county, against the parties aforesaid, stating their names if known, setting forth the nature of her claim, and particularly specifying the lands, tenements, and hereditaments in which she claims dower, and praying that the same may be allowed her; and the clerk shall thereupon issue a summons to the parties to appear at the next term of the said court, to answer the complaint, which shall be served by the sheriff as other writs and process. If the parties do not reside in the county, said clerk shall cause an advertisement to be published, as provided in sections eight, forty -one, and forty- two of chapter twenty-one of the Eevised Statutes, notifying said parties that such petition is filed, and requiring them, or any of them, to appear at the next term of the Circuit Court and show cause why such dower should not be assigned, which publication shall be deemed due notice, and the parties afore- said, or any other person interested therein, may appear and contest the widow's right to dower,' ' 1. A petition for dower should state and describe, in clear and legal language, such an estate as the widow may claim dower in ; to say that the husband was the owner and proprietor of land, is not sufficient. It should state case for dower clearly. — Davenport ;;. Farral, 1 Scammon, 315. 2. A widow has no right of dower in a pre-emption claim; it is not an estate of inheritance. — lb. 315. 3. It should state the substantial requisites of a bill in chancery, the rela- tion of husband and wife, death of husband, describe estate and title, his seisin and alienation thereof during the coverture, and the possession of the defendants, with claim of title, is sufficient prima facie to recpver upon. It need not negative every possible inconsistent fact, and the answer may aid the bill.— Wall v. Hill, Y Dana, Ky. Rep. 1'73. 4. In writ of dower, the count in 2 Saunders's Rep. 331-2 is an approved [698] DOWER. § 20. If there be persons interested in the same, whose names are unknown, it shall be lawful to make such persons parties to form, and states that slie was the wife, and the husband during coverture was seised of a freehold estate, and where damages are claimed, that he had not aliened, but died seised, as she cannot recover damages otherwise. — Waters y. Gooch, 6 J. J. Marshall, Ky. Rep. 591 ; Taylor w; Brodricls:, 1 Dana, 348. 5. If the alienee of the husband acquired his right to and possession of land from the deed of the husband, he cannot, when sued by the widow for dower, deny the seisin of her husband. — Dashiell v. Collier, 4 J. J. Marshall, 602. 6. Damages for the detention of dower were not recoverable at comfnon law, but were given by the statute of Merton, where the husband died seised of the estate. After the passage of that statute the widow recovered damages as against the heir, but not as against the alienee of the husband. The widow lost her damages if the heir died after judgment and before they were assessed, and the damages were also lost to her personal representatives if she died before they were ascertained. Such was the rule at law. — Turney v. Smith, 14 Ills. Rep. 243. 7. Where the widow filed her bill for an assignment of dower, pending which, and before the right of dower was established, she died, it was held that her administrator could not sustain a claim to mesne profitsv — lb. 243. 8. If the widow had died after a decree for the assignment of dower, the claim of the admiinistrator to mesne profits might perhaps be considered within the equity of the statute. There would then be some basis for an assessment of damages. Here a case has not arisen to authorize such a proceeding. — lb. 242. 9. Cases are to be found where courts of equity have decreed an account of , the rents and profits of land of which a widow was dowable, though her right to dower was not established in her lifetime, but in no case has the decree been in favor of the heir of the widow. The personal representative, if. any can, must sue. — Coons v. Hall's Heirs, 4 Littell, 264 ; Marshal v. Anderson, 1 B. Monroe, Ky. Rep. 198. 10. By the common law, the widow was not entitled to damages for the deten- tion of her dower. Statute of Merton, 20, H. iii. c. 3, re-enacted here, gave damages for the detention of dower recovered by the writ unde nihil habet, in lands of which the husband died seised. But damages are not recoverable at law or in equity for the detention of dower in lands aliened by the husband ; equity, in like oases, allows the damages. — Kendall v. Honey, 5 Monroe, 283 ; , Golden v. Maupin, 2 J. J. Marshall, 241 ; Waters v. Gooch, 6 J. J. Marshall, 689 ; Marshal v. Ahderson, 1 B. Monroe, 193 ; McElroy v. Wathen, 3 B. Mon- roe, 136 ; Gaston's Heirs v. Bates, 4 B. Monroe, 369. 11. By the common law, in the case of an alienation by the husband, the widow takes her dower according to the value of the land at the time of its alienation, and not according to its subsequent increased or improved value. —13 Ills. Kep. 485, 12. The rule is well established in this country, that she is not dowable of improvements put upon the land subsequent to its alienation by the husband, —lb. 485. 13. The same rule a,pplies when the land is sold under execution against' the husband, as that is equivalent to an alienation by him.— lb. 485. [ 69t» ] ILLINOIS. such suits or proceedings, by the name and description of per- sons unknown, or unknown heirs or devisees of any deceased person who may have been interested in the subject-naatter of the suit previous to his or her death; but in such cases an affidavit shall be filed by the party desiring to make any un- known person a party, stating that the names of such persons are unknown, and process shall be issued against all parties by the name and description given as aforesaid; and notice given by publication, as is required in the preceding section, shall be sufficient to authorize the court to hear and determine the suit as though all parties had been sued by their proper names ; and all decrees, orders, judgments, and proceedings had or made under the provisions of this chapter, respecting such unknown persons as aforesaid, shall be as binding and conclusive upon the persons and parties interested as though they had been sued by their proper names: Provided, That if any person residing out of this State, as aforesaid, against whom a decree is or shall be made, his heirs, devisees, executor, administrator, or assigns, as the case may require, shall, within one year after notice in writing given him or them of such decree, or within three years after such decree, if no notice shall have been given as afore- said, appear in open court, and petition to be heard touching the matter of such decree, and shall pay such costs as the court shall deem reasonable in that behalf, the person so petitioning may appear and answer complainant's bill, and thereupon such proceedings shall be had as if the defendants had appeared in due season, and no decree had been made. The decree shall, after three years from the making thereof, if not set aside in the manner aforesaid, be deemed and adjudged confirmed against such non-resident defendant, and all persons claiming under him by virtue of any act done subsequent to the commence- ment of such suit, aad at the end of the said three years the 14. The authorities all agree that in the assignment of dower the widow is not to be permitted to participate in the value of improvements made after the estate passed out of the husband. — Summers v. Babb, 13 Ills. Rep. 484. 15. There is gome diversity of opinion upon the question whether the widow is entitled to the benefit of the increased value of the land, arising from other causes than the mere labor and expenditure of the alienee ; but the weight of authority in the United States is decidedly in favor of her right lb. 484. [700] DOWEE. court may make such further order in the premises as shall be required and shall be just. § 21. Answers to such petitions shall be sworn to, and in all cases where the claim of the widow to dower may be contested, the parties contesting the same shall be required to enter their appearance to the action, and the court shall thereupon proceed to try the cause or direct an issue for that purpose, as the cir- cumstances of the case may require. § 22. Where any of the parties, defendants, are minors, and under age, and without guardians, the court shall appoint guardians ad litem for such minors. § 23. Petition for the recovery and assignment of dower shall be heard and determined by the court, upon the petition, answer, exhibits, and other testimony, without the necessity of formal pleading. § 24. Where the court adjudges that the widow shall re- cover dower, it shall be so entered of record, together with a description of the land out of which she is to be endowed ; and said court shall thereupon appoint three commissioners not connected with any of the parties, either by consanguinity or afSnity, and entirely disinterested, each of whom shall take the following oath, to be administered by the court, or some justice of the peace : — "I do solemnly swear that I will fairly and impartially allot and set off to A. B., widow of C. B., her dower out of the lands and tenements described in the order of the court for the pur- pose, if the same can be made consistent with the interest of the estate, according to the best of my judgment, so help. me God.'" ' 1. The judgment for assignment should he for one-third part as it is, unless the alienee have made valuable improvements, and then she must he endowed of so much onl7 as will he equal to the one-third part independent of the improvements ; and if there he no improvements, then she should have judg- ment for one-third of each parcel. — Taylor v. Brodrick, 1 Dana, 347. 2. S. P. Summers v. Bahb, 13 Ills. 484. 3. Thefacts of improvements, &c., must he pleaded, and dower assigned ac- cordingly. — Taylor v. Brodrick, 1 Dana, 347 ; Lawson v. Morton, 6 Dana, 471 ; Wall V. Hill, 7 Dana, 175. 4. In the allotment due regard should he had to the productiveness, as well as quantity, quality, and value of the several parcels of estate. — Smith «. Smith, 5 Dana, 180. [701] ILLINOIS. § 25. The commissioners shall set off and allot to said widow her dower by metes and bounds, according to quality and quantity of all the lands, tenements, and hereditaments described in said order of court ; Providedy The widow shall have the homestead or dwelling-house of the husband, if she desires it ; and make return in writing under their hands and seals to said court, which, if approved by said court, shall vest in her an estate on the land and tenements so set off and allotted to her, for and during her natural life ; or if such estate shall have been set off and allotted to said widow by virtue of section fifteenth of this chapter, such estate shall be vested in her absolutely, in fee simple, and of inheritance forever, subject to her absolute use, control, and disposition, as though her interest therein had been acquired by her when sole} 6. The wife cannot release or convey her dower, by joining her husband to A. when her husband had conveyed his estate to another. — Blairu. Harrison, 11 Ills. 384. 6. The widow may release her dower, so as to bar herself the right of assert- ing it against the owner in fee, but she cannot invest any one with it — she alone can get it assigned. — lb. .7. Quaire. Why should not the interest be assignable in equity at least ? Before it becomes absolute by the death of her husband, and while potential merely, it is salable. BuUard u. Briggs, 7 Pickering. — A fortiori, after it is vested and consummated, it should be assignable by her, for equity will pro- tect all such assignees, and it is certainly liable to be subjected upon nulla bona, in Ky., for her debts, and to be assigned by the chancellor for the creditor or purchaser. — Editor. 8. She cannot lease her right before assignment even to the owner in fee. — Blair v. Harrison, 11 Ills. 384. 9. Until dower is assigned, the widow has no such legal right as can be sold under execution, or upon which she or her alienee can maintain ejectment. — Shields v. Bates, 5 J. J. Marshall, 15 ; Stewart v. Stewart, 3 J. J. Marshall, 49. 10. The widow's right to dower is consummated by the death of the husband. The allotment is merely to ascertain the quantity and define the bounds. The heir, or any other one in possession, may make the assignment. It may be voluntary. — Stevens v. Stevens, 3 Dana, 371. ' 1. After an assignment of dower, the widow becomes invested with a right of entry, and if she marries, that right passes to her husband, and may be sold by him, or subjected to execution for his debts. — Williams v. Morgan, 1 Littell, 167. Not so, in Ky. since 1852. 2. And if the widow be evicted of lands assigned her by a paramount title, she may recover other lands from the heirs or have a new assignment of her interest.— Stevens v. Terril's Heirs, 3 T. B. Monroe, 133. 3. In all assignments of dower and partitions there are mutual implied warranties of title. [702 J DOWER. § 26. When a widow has claim to dower in lands lying in different counties, she may proceed in the Circuit Court of the county where the lands lie ; or if such lands lie in different counties, then in the county in which the itiajor part of such lands lie; but if the major part thereof do not lie in any one county, then in any county in which any of the lands lie, and make recovery in the manner as herein directed : and in all cases when the report assigning dower shall be approved, the court shall forthwith cause the widow to have possession, by a writ directed to the sheriff for that purpose, and such widow shall also be entitled to reasonable damages, to be awarded her from the time of the demand and refusal to assign her her reasonable dower, which may be assessed by the court ; or a jury, if required, shall be empanelled for that purpose, and execution may issue therefor.' § 27. The widow may in all cases retain the full possession of the dwelling-house in which her husband most usually dwelt next before the death, together with the outhouses and planta- tion thereto belonging, free from molestation and rent until her dower be assigned,^ § 28. If the commissioners aforesaid shall report that thp ' A bill in chancery for dower in a tract of land aliened by the husband in several parcels, may be brought against all the alienees. — Marshall v. Ander- son, 1 B. Monroe, 198. " 1. It is clearly the right of the widow to retain the exclusive possession of the farm thus situated until the assignment of dower. And perhaps she has the right to lease the same, and receive the rent to her own use, so long as her dower remains unassigned. The possession of a tenant in such case might be regarded as her possession within the true intent of the statute. — Clark V. Brownside, 15 Ills. Rep. 63. 2. In Kentucky the widow is entitled to the mansion-house and the wliole plantation free from rent until her dower is assigned her. — Chaplin v. Sim- mon's Heirs, 7 Monroe, 338. 3. And this is the case whether she resides there or not ; but this right does not extend to any enlargement of the farm. — White v. Clark, 7 Monroe, 642 ; Renfro v. Taylor, 12 B. Monroe, 406. 4. A town lot, including the mansion-house, should go to the widow, as a plantation would in the couiitry, until the assignment of dower. — Stewart's Lessee v. Stewart, 3 J. J. Marshall, 48. 5. The alieneeof the husband cannot recover in ejectment his two-thirds of a lot, before the widow's dower is assigned her. — lb. 48. 6. The widow is entitled to possession of the land against heir or alienee until dower is assigned.— Robinson v. Miller, 1 Ben. Monroe, 92. [703] ILLINOIS. lands or other estate is not susceptible of a division -without great injury thereto, a jury shall be empanelled to inquire of the yearly value of the widow's dower therein, and shall assess the same accordingly ; and the court shall thereupon render a judgment, that there be paid to such widow as an allowance in lieu of dower, on a day therein named, the sum so assessed, as the yearly value of her dower, and the like sum on the same day in every year thereafter during her natural life ; and such jury shall moreover, if the same has not been done, assess the damages which may have accrued down to the time of render- ing the verdict. § 29. Commissioners appointed to assign dower may make reports to the court during the same term at which they were appointed, and the court may, at such term, make all such orders upon such reports as may be necessary to a final dispo- sition of the case. § 30. No woman that shall be endowed of any lands, tene- ments, and hereditaments, shall wantonly or designedly commit or suffer any waste thereon on penalty of forfeiting that part of the estate whereupon such waste shall be made, to him or them that have the immediate estate of freehold or inherit- ance in remainder or reversion (and in case of neglect or inad- vertent waste), by her done or suffered ; the damages that may be assessed for such waste, to be recovered by action of waste. § 81. Heirs, or if under age, their guardians, or any other persons interested in lands, tenements, or hereditaments, may also petition the court to have the widow's dower assigned, which shall be proceeded in in the same manner as is prescribed in other cases.' ' 1. It is the duty of a guardian to institute proceedings for the assignment of dower, so that his wards may obtain their share of the rents and profits of the estate, and his estate is liable for whatever might have been received by a faithful discharge of that duty. — Clark v. Burnside, 15 lUs. 63. 2. Even if a Court of Chancery had jurisdiction to sanction a compromise on behalf of infants, who are suitors before it, so as to satisfy the claims of the widow of dower by cash, yet such a power should always be exercised with great care and circumspection, and only when it is clearly and manifestly for the infants' interest to do so. The court will not sanction an agreement by which the interest of the minor could be prejudiced, or made by a guardian in such case, unless it is satisfied that the interests of the infant will be pro- moted,— King V. King, 15 Ills. Rep. 187. [704] DIVORCE. § 32. Commissioners appointed to assign dower shall be allowed each one dollar per day, to be taxed as other costs. § 33. At the death of any widow who hath dower in any lands or estate of her deceased husband, such lands or estate shall descend in accordance with the will of such husband ; or if the husband shall have died intestate, then to descend in accordance with the law providing for the distribution of in- testate's estate.' § 34. No widow who shall, as executrix or administratrix, sell and convey by order of court, for the payment of debts, real estate of her husband, in which she shall be by law entitled to dower, shall be deemed to relinquish her right of dower therein, by reason of such conveyance unless her relinquishment shall be specified in such deed or conveyance.^ DIVOECE. § 1. In every case in which a marriage has been, or hereafter may be contracted and solemnized between any two persons, and it shall be adjudged in the. manner hereinafter provided, that either party, at the time of such marriage, was and con- tinues to be naturally impotent ; or that he or she had a wife or husband living at the time of such marriage ; or that either party had committed adultery subsequently to the marriage ; or has wilfully deserted and absented himself or herself from the hus- band or wife, without any reasonable cause, for the space of two years, or has been guilty of extreme and repeated cruelty or habitual drunkenness for the space of two years ; or has been convicted of felony or other infamous crimes, it shall be lawful for the injured party to obtain a divorce and dissolution of such marriage contract ; but no such divorce shall in anywise affect the legitimacy of the children of such marriage, except where ' 1. A woman holding land in right of dower cannot by purchasing a title adverse and paramount to that of the reversioners, and under which she acquired possession, defeat the reversionary right or prevent a restitution of possession to the reversioners hy alienation of her right to another by deed, for a valuable consideration. — Kirk v. Nichols' Heirs, 2 J. J. Marshal, 470. ^ 2. Limitation in chancery is 20 years, and circumstances that would form exceptions to the statute will form exceptions to this rule. — Ralls v. Hughes and Hedges, 1 Dana, 407. 45 [ 705 ] ILLINOIS. the marriage shall be declared void on the grounds of a former marriage. § 2. The Circuit Court, sitting as a court of chancery, shall have jurisdiction in all cases of divorce and alimony by this chapter allowed ; and the like process, practice, and proceed- ings shall be had as are usually had in other cases of chancery, except as hereinafter provided, and except that the answer of the defendant need not be on oath. The proceedings shall be had in the county where the complainant resides, and the pro- cess may be directed to any county in the State. § 3. No person shall be entitled to a divorce in pursuance of the provisions of this chapter, who has not resided in the State one whole year previous to filing his or her bill or petition. unless the offence or injury complained of was committed within this State, or whilst one or both of the parties resided in this State. § 4. If it shall appear to the satisfaction of the court, that the injury complained of was occasioned by collusion of the parties, or done with the assent of the complainant for the purpose of obtaining a divorce, or that the complainant was consenting thereto, or that both parties have been guilty of adultery, when adultery is the ground of complaint, then no divorce shall be decreed. § 5. In all cases for a divorce where the defendant shall ap- pear and deny the charges in the complainant's bill or petition alleged, the same shall be tried by a jury ; but if the bill or pe- tition be taken for confessed, the court may proceed to a hear- ing of the cause by examination of witnesses in open court; and no confession of the defendant shall be taken as evidence, unless the court or jury shall be satisfied that such confession was made in sincerity, and without a collusion, to enable the complainant to obtain a divorce. But any marriage which may have been celebrated or had in any foreign State or country, may be proved by the acknowledgment of the parties, their cohabita- tion, and other circumstantial testimony. § 6. "When a divorce shall be decreed, it shall and may be lawful for the court to make such order touching the alimony and maintenance of the wife, the care, custody, and support of the children, or any of them, as from the circumstances of the parties, and the nature of the case, shall be fit, reasonable, and [706] DIVORCE. just. And in case the wife be complainant, to order the defend- ant to give reasonable security for such alimony and maintenance as may enforce the payment of such alimony and maintenance in any other manner consistent with the rules and practice of the court.' § 7. Any woman suing for a divorce, who shall make it ap- pear satisfactorily to the court, that she is poor and unable to • 1. And the court may, on application, from time to time make such alte- rations in the allowance of alimony and maintenance as shall appear reason- able and proper. The courts have no authority to decree a divorce on a hill pro confesso ; there must be proof to sustain the allegations of the bill. — ShilUnger v. ShlUinger, 14 111. Eep. 147. 2. The only divorce authorized by our statute is 3 vinculo matrimonii, and that for causes arising both before and after marriage. Legitimacy of issue is not affected, except the marriage is declared void on account of a prior mar- riage. Divorce for the fault of the wife involves loss of jointure, dower, and rights secured by marriage settlement. The decree of divorce is conclusive evidence of the causes for w^ioh it was granted in all collateral suits, and proceedings.— Clark et al. v. Lott et al., 11 111. Rep. 105. 3. Upon a bill filed by the wife, alleging desertion, the husband confessed the desertion in answer, and justified it by reason of alleged cruelty. The court decreed the divorce, and allowed alimony to the wife, continuing the cause to the next term to inquire into the proper amount of alimony. At the next term the same evidence was admitted upon the question of the amount of alimony that had been heard upon the question of divorce, though objected to by respondent, and a decree was given for one cent alimony, and that each pay his or her own costs ; held, that such testimony was irrelevant on the question of amount of alimony, and that it was an error to admit it ; and the allowance of nominal alimony was a virtual rescission of the former judgment. The order on the wife to pay costs was erroneous, and alimony should have been allowed in proportion to the husband's ability and the wife's condition in life.— Reavis v. Reavis, 1 S. 242. 4. Upon decreeing alimony the court may direct that lands held by the wife be divided between the parties, and that they execute to each other con- veyances to perfect such decree. Unless manifest injustice be done, the Su- preme Court will not disturb the decree of the court below on a question of alimony. — Stewartson v. Stewartson, 15 111. Rep. 147. 5. Where a husband's interest in the real estate of his wife was during coverture, it is terminated by a divorce granted for his misconduct.- Howey et al. t. Gorings, 13 111. Rep. 95. 6. The husband obtained a decree of divorce from his wife, and the question of alimony was continued to the next term of the court. Before the next term the husband died, and at the next term the suit was abated, so far as alimony was concerned, on the motion of the defendant. On motion, the Supreme Court granted a writ of scire facias to the executor of the deceased husband, and a writ of error to revise the decree.— Wren v. Moss, 1 Gilman, 111. Rep. 560. [707] ILLINOIS. pay tbe expenses of such suit, shall be allowed by the court to prosecute her complaint without costs, and in such cases no fees shall be charged by the officers of the court. § 8. In addition to the causes hereinbefore provided for di- vorce from the bonds of matrimony, courts of chancery in this State shall have full power and authority to hear and determine all causes for divorce, not provided for by any law of this State. The same rule of proceeding shall be had as in other cases in chancery, and upon hearing of the bill, or bill and answer, and proofs and exhibits, if the court shall be satisfied of the expe- diency of decreo'ing a dissolution of the bonds of matrimony, it shall have power to do so, and make such order with regard to the costs as it may, deem right; and also to make such order with regard to the children (if any), and the right of alimony, as it may think proper.' ' 1. The marriage contract will not be dissolved for light and trivial causes ; and such a case must be shown as the law requires. Unkind treatment, threats of personal violence, do not constitute the " extreme and repeated cruelty" whiohthe statute requires to authorize a divorce for that cause. — Vig- nas V. Vignas, 15 111. Rep. 120. [708] OHIO. An Act in relation to the interest of husbands in the estate of their wives. § 1. Be it enacted ly the General Assembly of the State of Ohio, That the iuterest of any married man in the real estate of hia wife, belonging to her at the time of their intermarriage, or which may have come to her by devise, gift, or inheritance during coverture, or which may have been purchased with her sole and separate money or the property, and during her cover- ture, shall have been devised to her, or to any trustee in trust for her, shall not be liable to be taken, by any process of law or chancery, for the payment of his debts during the life of the wife, or the life or lives of the heir or heirs of her body, § 2. All conveyances and incumbrances of the husband's in- terest in the real estate of the wife in the first section mentioned, shall be void and of no effect during the life of the wife, and during the life or lives of the heir or heirs of her body, unless an instrument of such conveyance or incumbrance shall have been executed, attested, and acknowledged according to the laws of this State, for the conveyance or incumbrance of the estate of the wife in lands, tenements, and hereditaments situate within this State. § 3. No interest of a husband in any chose in action, demand, legacy, or bequest of his wife, shall be liable to be taken, by any process of law or chancery, for the payment of his debt, unless such husband shall have teduced the. same to possession, so as by the rules of law to have become the owner thereof in his marital rights ; Provided, That this act shall not affect or alter the rights or remedies of parties under contracts heretofore made, or as to debts heretofore contracted during marriage. § 4. All articles of furniture and household goods which a wife shall have brought with her at marriage, or which shall have come to her by bequest, gift, or which shall have been, [709] OHIO. after marriage, purchased with her separate money or other property, shall be exempt from liability for the debts of her husband during the life of the wife and during the life of any heir of her body. § 5. This act shall take effect and be in force from and after the fourth day of July next. — February 28, 1846. An Act to amend the act in relation to interests of husbands in the estates of their wives, passed February 28, 1846 ; guarding against an improper construction of the law passed February 28, ISiff. § 1. 5e it enacted by the General Assembly of the State of Ohio, That the act in relation to the interests of husbands in the estates of their wives, passed February 28, 1846, shall not be so con- strued as to make any interest of a husband in the property of his wife coming within the meaning of said act, liable to be taken by any process of law or chancery for the payment of the debts of the husband during the life of the wife, or the life or lives of the heir or heirs of her body, which said property shall have been acquired in any way contemplated by said act subsequent to the taking effect of the same, anything in the proviso annexed to the third section of said act to the contrary notwithstanding. — February 5, 1847. NOTE. In Ohio, tlie interest of the hushand in the wife's real estate, her personal property acquired before marriage, and her choses in action, unless he has re- duced them to possession, cannot he taken for his debts during her life or the life of her heirs. Swan's R. S. (Duly's Ed. 1854), Ch. 87, tit. 21 (657) (660).— The husband of an insane wife maybe authorized to sell his real estate with- out her joining. Id. Ch. 70 (61) — The husband must be joined with the wife in all actions in which she is a party, except those concerning her separate property, when she may sue by her next friend, as she may in actions between themselves, except for divorce or alimony, when she sues alone. Id. Ch. 87. Husband and wife may not testify for or against each other while the relation subsists or afterwards. Id. Chapter 87, p. 314.— As to the rights of the wife to children and property when her husband joins the Shakers, see Ch. 105. The husband or wife may insure his life (the annual premium not to exceed $150, otherwise the surplus insurance goes to his representatives) for the benefit of her children. Id. Ch. 59.— A married woman may dispose of her property by will. Id. Ch. 122.— And the will of a/eme sole Is not revoked by her subsequent marriage. Id. 37 — The homestead to the value of $500 is exempt from execution, &o. Id. Ch. 87, p. 647-656 ; see also the new edition of Judge Swan, containing the existing provisions of the law in Ohio. [710] CALIFOEIS^IA. In this State all property owned before marriage, or subse ■ quently acquired by gift, bequest, devise, or descent, by either party, is the separate property of each; but all otherwise ac- quired by either after marriage is common property. An in- ventory of the wife's separate property, acknowledged or proved as for a conveyance of land, shall be recorded, and this shall be notice of the wife's title, and her property included therein is exempt from seizure or execution for the debts of her husband. He has the management and control of her separate property during marriage, but no alienation can be made, nor lien or incumbrance created unless she join in the deed and acknow- ledges on a separate examination. But when she sells her sepa- rate property for his benefit, or he uses the proceeds with her written consent, it is deemed a gift, and neither she nor those claiming under her can recover. In certain cases a trustee may be appointed to manage her property. The husband has the entire control and management of the common property, with like absolute power of disposition as of his own separate pro- perty; and the rents and profits of the separate property of both are deemed common property, unless, with respect to the wife, the terms of the bequest, devise, or gift are otherwise. Dower and curtesy are abolished. Upon the death of either party one-half of the common property goes to the survivor, and the other half to the descendants of the deceased, subject to the payment of his or her debts; if there are no descendants, the whole to the survivor, subject to such payment. Upon divorce the common property is equally divided. The separate pro- perty of the wife is alone liable for her antenuptial debts. But the parties may control these provisions by marriage contract, which must be in writing and recorded, or otherwise shall not affect third parties. It may be entered into by a minor, but [711] OALIFOENIA. cannot alter the legal order of descent, nor derogate from the husband's rights over the persons of his wife and children as head of the family, or the survivor's rights as guardian of child- ren. Compiled Laws of California, 1850-1853, Chapter 147, p. 812. — When a married woman is a party to a suit, her husband is to be joined, except, if the action concerns her separate pro- perty, she may sue alone, and, if between herself and her hus- band, she may sue and be sued alone. If both are sued to- gether, she may defend in her own right. Id. Chap. 123, p. 520. — There is also a homestead law exempting the homestead to the amount of $5,000, from final process of court; and it cannot be alienated without the wife joins in the conveyance and acknow- ledges separate and apart from her husband. Its other provi- sions are substantially similar to those before referred to. Id- Chapter 158, p. 850. — The wife's real estate may be conveyed by separate deed if her husband has been absent one year. Laws of 1855, Chapter 17. — She may devise by will with the written consent of her husband (unless this is rendered neces- sary by marriage contract). Compiled Laws, Chapter 24, p. 140. — By complying with certain requirements she may carry on, in her own name, any business, trade, profession, or art, and the property, &c., invested belongs exclusively to her, and she has all the legal privileges and disabilities of debtor and creditor, and becomes responsible for the maintenance of her children. Her husband is not liable for her debts thus contracted without special written promise; and she shall not originally invest more than $5,000 without taking oath that the amount above that sum did not proceed from him. Id. Chapter 178, p. 881.— She may cause the life of heir husband to be insured for her benefit. Public Laws of 1854, Chapter 40; see the Compilation of Garfielde & Snyder, published by authority in 1853, to which reference is here made. [712] TENNESSEE. By the act of 1835, Chapter 36, it is provided — § 1. That from and after the passage of this act it shall and may be lawful for /erne covert to act in all respects as feme sole in all cases where the husband of such /erne covert shall be ascer- tained to be insane and incapable to manage his own affairs by the verdict of a jury as now prescribed by law; Provided, That no feme covert shall be authorized to act as a /eme sole until the verdict of the jury in such case shall have been confirmed by the County Court; Provided further, That nothing in this act shall be so construed as to authorize such /ewie covert to marry again during the life of her husband. § 2. That in all cases where the husband of any feme covert has heretofore been ascertained to be insane by the inquisition and verdict of a jury as now prescribed by law, and which has been confirmed by the County Court of any county in this State, such fem£ covert shall, and is hereby authorized, to act in all respects as a feme sole during the insanity of her husband, to purchase, receive, and hold property, both real and personal, to contract and be contracted with, to sue and be sued, plead and be impleaded, and that such property as she may acquire by purchase or otherwise, shall not be taken or made subject to the satisfaction of the debts or contracts of her said husband.^ [Passed February 19, 1836.] NOTE. -In this State marriage contracts and settlements must be recorded to he valid against creditors. They are not good where more property is concerned than husband and wife possessed at the time of marriage ; but subsequent legacies to her are considered as property received by her. Public Acts of ' Laws of Tennessee, 21st General Assembly, pp. 166, 167. [713] TENNESSEE. 1785, Ch. 12. — As to dower and provisions in lien of, see Laws of 1823, Ch. 37 ; Laws of 1784, Chapter 22. Property exclusive of dower and exempt from execution set off to widow. Laws of 1847, Ch. 13. — Other property in widow's hands exempt from execution. Laws of 1833, Ch. 80. — This provision applies to a married woman whose husband absconds. lb. Ch. 2. — Other provisions in relation to widows. Laws of 1844, Ch. 211. — A. feme covert may dispose by will of her own estate. Laws of 1852, Chapter 180. [714 J WISCONSIN. An Act to provide for the protection of married women in the enjoy- ment of their own property. § 1. The real estate, and the rents, issues, and profits thereof, of any female, now married, shall not be subject to the disposal of her husband, but be her sole and separate property, as if she were a single female. § 2. The real and personal property of any female who may hereafter marry, and which she shall own at the time of mar- riage, and the rents, issues, and profits thereof, shall not be subject to the disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property. § 3. Any married female may receive by inheritance, or by gift, grant, devise or bequest, from any person other than her husband, and hold to her sole and separate use, and convey and devise, real and personal property, and any interest or estate therein, and the rents, issues and profits, in the same manner and with like effect as if she were unmarried, and the same shall not be subject to the disposal of her husband, nor be liable for his debts. NOTE. Provisions, also, exist by which powers may be given to married women, and for regulating their execution of them. — Rev. Stat,, Chap. 58, Sees. 8-15- 40-4, 57. If husband and wife are impleaded, and the husband neglect to defend the rights of the wife, she, applying before judgment, may defend without him ; and if he lose her land by default, she may bring an ejectment therefor after his death. — Chapter iii. Sees. 3, 4. The husband thereby holds his deceased wife's lands for life, unless she left by a former husband issue to whom the estate might descend. The marriage of a, feme sole executrix or administratrix extinguishes her authority.— Eev. Statutes, Chap. 67, Sec. 8 ; Chap, 68, Sec. 13. ' Laws of 1850, chapter 44. [715] TEXAS. An Act better defending the marital right of parties.^ § 1. That every female under the age of twenty-one years, ■who shall marry in accordance with the laws of this State, shall, from and after, the time of such marriage, be deemed to be of full age, and shall have all the rights and privileges to which she would have been entitled had she been at the time of her marriage of full age. § 2. That all the property, both real and personal, of the husband, owned or claimed by him before marriage, and that afterwards acquired by gift, devise, or descent^ as also the in- crease of all lands or slaves thus acquired, shall be his separate property. All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterwards by gift, devise, or descent, as also the increase of all lands or slaves thus acquired, shall be the separate property of the wife : Provided, That during the marriage, the husband shall have the sole management of all such property. § 3. That all property acquired by either husband or wife, during the marriage, except that which is acquired in the man- ner specified in the second section of this act, shall be deemed the common property of the husband and wife, and during the coverture may be disposed of by the husband only ; it shall be liable for the debts of the husband, and for the debts of the wife, contracted during the marriage, for necessaries ; and upon the dissolution of the marriage by death, the remainder of such common property shall go to the survivor, if the deceased have no child or children ; but if the deceased have a child or child- ren, the survivor shall be entitled to one-half of said property. ' Chapter 79. [716] TEXAS. and the other half shall pass to the child or children of the de- ceased. § 4. That the husband and wife may be jointly sued for all debts contracted by the wife for necessaries furnished herself or children, and for all expenses which may have been incurred by the wife for the benefit of her separate property. § 5. That upon the trial of any suit as provided for in the fourth section of this act, if it shall appear to the satisfaction of the court and jury that the debts so contracted or expenses so incurred were for the purposes enumerated in said section ; and also that the debts so contracted or expenses so incurred were reasonable and proper, the court shall decree that execution may be levied upon either the common property or the separate property of the wife, at the discretion of the plaintiff. § 6. That the third and fourth sections of "An act to adopt the common law of England, to repeal certain Mexican laws, and to regulate the marital right of parties," approved 20th January, 1840, be and the same are hereby repealed, and that nothing contained in this act shall be so construed as to affect any other sections of said act than the said third and fourth sections ; but that any other section of said act that may con- trol or affect the said third or fourth sections, shall have the like control and effect over the provisions of this act. § 7. That this act shall take effect and be in force from and after passage.* NOTE. The marriage of a. female minor gives her all the rights she would have if of age.' All property acquired by either party hefore marriage, or by gift, devise, or descent afterwards, ia the separate property of each ; but the husband has the management of the whole.' Property acquired by either during marriage, in other ways, is common ; the husband may dispose of it during coverture ; if there are no children the whole goes to the survivor, otherwise one-half.* The parties may be jointly sued for necessaries and for expenses benefiting the wife's separate estate.' ' Texas Laws, vol. ii. part i. pp. 77, 78, 79. » Hartley's Digest, Article 2430. • Ibid. 2422. » Ibid. 2421. » Ibid. 2423. [717] TEXAS, Execution may be levied on common property, or her separate property at plaintiff's option.' Marriage agreement must tie made before a notary, and may be acknow- ledged by a minor with parents' or guardian's consent.* And are unalterable after marriage.' A reservation of property therein to be good must be re- corded.* Husband and wife may sue jointly and separately for her effects.* The wife may, on failure of the husband to support her, and support and educate her children, upon application, do it with her separate property.^ The will of a. feme sole is revoked by her subsequent marriage.' ' Hartley's Digest, Article 2424. " Ibid. 2414. ' Ibid. 1090. 2 Ibid. 2411 and 2412. e Ibid. 2415. 3 Ibid. 2413. s i^id. 2416. [71b] FLORIDA. HUSBAND AND WIFE. § 1. Whereas, some doubts have been entertained as to the effect and operation of the introduction of the common law of England upon the separate rights of husband and wife under the laws of the provinces of East and West Florida upon mar- riages solemnized: Be it enacted, That all the rights and privi- leges of husband and wife established or derived by marriage under the civil laws of Spain, while this State was under the jurisdiction of that government, shall be held, possessed, and exercised by the husband and wife, respectively, in this State, and each shall be permitted to sell, succeed to, dispose of, and convey by sale, devise, or will, their goods, chattels, lands, and tenements in the same manner as they could or might have done under the laws of Spain, observing only the formalities of con- veyance required by any other laws established, or which may hereafter be established in this State.^ § 2. Hereafter, when any female, a citizen of this State, shall marry, or when any female shall marry a citizen of this State, the female being seised or possessed of real or personal property, her title to the same shall continue separate, independent, and beyond the control of her husband notwithstanding her cover- ture, and shall not be taken in execution for his debts ; Provided, however, that the property of the female shall remain in the care and management of her husband.^ § 3. Married women may hereafter become seised or possessed of real and personal property, during coverture, by bequest, demise, gift, purchase, or distribution : subject, however, to the ' Act Deo. 23, 1824, Duval, 45. 2 Act March 6, 1845, Sec. 1, Pamp. 24. [719] FLORIDA. restrictions, limitations, and provisions contained in the fore- going section.' § 4. Any married woman having separate and independent title to property under and by virtue of this act, shall not be entitled to sue her husband for the rents, hire, issues, proceeds, or profits of said property, nor shall the husband charge for his management and care of the property of his wife.* § 5. The husband and wife shall join in all sales, transfers, and conveyances of the property of the wife, and the real estate of the wife shall only be conveyed by the joint deed of the hus- band and wife, duly attested, authenticated, and admitted to record, according to the laws of Florida, regulating conveyances of real property.' § 6. The husband shall not be held or deemed liable to pay the debts of his wife contracted prior to any marriage hereafter to be solemnized in this State, but the property of the wife shall be subject to such debts.'' § 7. If married women die in this State possessed of real and personal property, or of either species of property, the husband shall take the same interest in her property, and ho other, which a child would take and inherit ; and if the wife should die with- out children, then the surviving husband shall be entitled to administration, and to all her property, both real and personal.' § 8. All the property, real and personal, which shall belong to the wife at the time of her marriage, or which she may acquire "in any of the modes hereinbefore mentioned, shall be inventoried and recorded in the Circuit Court Clerk's office of the county in which such property is situated, within six months after such marriage, or after said property shall be acquired by her, at the peril of becoming liable for her husband's debts, as if this act had not been passed; Provided, That any omission to make said inventory and record, shall in no case confer any rights upon her hMaha.nd.'^— {Thompson's Digest, pp. 219, 220, 221, 222.) ' Act Mar. 6, 1845, See. 2, Pamp. 24. ' Act Mar. 6, 1845, Sec. 3, Pamp. 24. ' Act Mar. 6, 1845, See. 4, Pamp. 24. • Act Mar. 6, 1845, Sec. 5, Pamp. 24. ' Act Mar. 6, 1845, Sec. 6, Pamp. 24. " Act Mar. 6, 1845, Seo. 6 [Sec. 7J, Pamp. 25. [720] WILLS AND TESTAMENTS. WILLS AND TESTAMENTS. § 1. Every person of the age of twenty-one years, being of sound mind, shall have power by last will and testament in writing to devise and dispose of his or her lands, tenements, and hereditaments, and of his or her estate, right, title, and in- terest in the same, in possession, remainder, or reversion, at the time of the execution of the said last will and testament, and of the slaves which may be possessed by him or her at the time of his or her death ; Provided, That every such last will and testa- ment shall be signed by the testator, or by some other person in his or her presence, and by his or her express directions, and shall be attested and subscribed, in the presence of the said tes- tator or testatrix, by three or more witnesses, or else it shall be utterly void and of none efiect.^ § 4. Nothing in this act contained shall be construed to affect the rights already vested by the pre-existing Spanish laws in this State, in married women, in regard to their power of devis- ing or bequeathing their separate property .° NOTE. In Florida the rights of husband and wife, by marriage under the Spanish law (when in fftroe), are preserved.' The wife retains, independent of her husband and not liable for his debts (If inventoried and recorded, but failure to record confers no rights on him),* all property owned before or obtained after marriage. But he has the manage- ment of it. She cannot sue him for rent, nor can he sue her for management. Her property alone is liable for her antenuptial debts. And upon her death he takes the same interest in her property as a child, and if she has no child then he takes the whole.' And eoery person of the age of 21 years may make a will. ' Act Nov. 20, 1828, Sec. 61, Duval, 181. 2 Act Nov. 20, 1820, Sec. 60, Duval, 181. ' Thompson's Digest, 2 Div. Title 3, Chap. 1, Sec. 4 ; 2 Div. Title 3, Chap. 1, Sec. 2. ' lb. 2 Div. Title 5, Chap. 1, Sec. 2, p. 8. » lb. 2 Div. Title 5, Chap. 1, Sec. 2. 46 [721 J MISSISSIPPI. An Act for the protection and preservation of the rights and property of married women. %1. Be it enacted hy the Legislature of the State of Mississippi, That any married woman may become seised or possessed of any property, real or personal, by direct bequest, demise, gift, purchase, or distribution, in her own name, and as if her own property ; Provided, the same does not come from the husband during coverture. § 2. And he it further enacted, That hereafter when any woman possessed of a property in slaves, shall marry, her property in such slaves and their natural increase shall continue to her, notwithstanding her coverture ; and she shall have, hold, and possess the same as her separate property, exempt from any liability for the debts or contracts of her husband. § 3. And ie it further enacted, That when any woman, during coverture, shall become entitled to, or possessed of, slaves by conveyance, gift, inheritance, distribution, or otherwise, such slaves, together with their natural increase, shall enure and belong to the wife, in like manner as above provided as to slaves which she may possess at the time of marriage. § 4. And be it further enacted, That the control and manage- ment of all such slaves, the direction of their labor, and the receipt of tlje productions thereof, shall remain to the husband, agreeably to the laws heretofore in force. All suits to recover the property or possession of such slaves shall be prosecuted or defended, as the case may be, in the joint names of the hus- band and wife. In the case of the death of the wife, such slaves descend and go to the children of her and her said husband, jointly together; and in case there shall be no child born to the wife during such her coverture, then such slaves shall descend and go to the husband and to his heirs. [722] MISSISSIPPI. § 5. And &e ii further enacted, That the slaves owned by a feme covert under the provisions of this act, may be sold by the joint deed of husband and wife, executed, proved and recorded agreeably to the laws now in force in regard to the conveyance of the real estate oi feme coverts, and not otherwise. {Approved, February 15, 1839.] [Laws of Mississippi, 1839, pages 72 and 73.] NOTE. A. feme covert jaay be separately seised of real or personal property by direct begnest, &o., if it does not come from her husband after coverture. Hutch- inson, Miss. Code, oh. 34, art. 4. — She thus holds slaves that she possessed at the time of marriage, and those conveyed to her subsequently with their in- crease, also stock and implements of husbandry necessary for planting. lb. Art. 7. — Rents, issues, profits of her real estate, enure to her sole and separate use. Id. art. 7. — So of the labor of her slaves ; and she may contract jointly with her husband for their services and maintenance, her separate property alone being liable in an action on such contract. Bills of sale of such slaves must be under seal, and acknowledged like deeds of real estate. Suits affect- ing her separate property may be prosecuted and defended in their joint names. Covenants in consideration of marriage and marriage settlement, must be acknowledged and recorded. Ch. 24, art. 1. — She may defend in a suit for her land if the husband neglects. Id. art. 3. — The husband is not liable for the wife's antenuptial debts until her separate property is exhausted, nor for any debt contracted after marriage, if at the time she owned separate property. Chapter 34, art. 7. — The will of a feme covert is void. Chapter 49, art. 1. For this abridgment, see also Parsons on Contracts, page 306. [723] ALABAMA. Proviso to § 27 q/" Title "Conveyances" which regulates the mode of taking acknmaledgments of deeds of married women. Provided, That this clause shall not be construed to enable anjfeme covert, under the age of twenty-one years, to convey lands, tenements or hereditaments, or any right, interest or estate therein.^ An Act to protect the rights of married women. § 1. That in all cases where a married woman may be en- titled to a legacy, or to a distributive share, of the estate of a deceased person, or to any other chose in action, not reduced to possession, she may, by filing a bill in chancery, have such legacy, distributive share, or choses in action, vested in a trustee for her sole and separate use and support, and for the support and maintenance of her family, if it shall be made to appear to the chancellor that the same would probably be lost to her if permitted to go into the hands of her husband, either from his insolvency, intemperance, or improvidence; and in like manner, if she has an interest in lands belonging to the estate of a de- ceased person, either by descent or devise, the same may be secured for the foregoing purposes, by filing a bill pursuant to the provisions of this act, at any time before a division of such lands shall have been made. § 2. That in proceedings under this act, no person shall of necessity be made defendant, except the husband and the ex- ecutor or administrator of such deceased person, or the person in debt to the wife, or who may hold the choses in action not ' Clay's Digest, 155. [724] ALABAMA. reduced into possession on account of said wife ; and on due proof the chancellor shall appoint a trustee in whom shall be vested such legacy, lands, or distributive share for the purposes aforesaid. And to simplify proceedings under this act, the bill need not describe the particular interest in the estate of a de- ceased person attempted to be secured, nor need the decree otherwise describe it, than as the share of such married woman, of such estate ; which decree shall be filed in the office.of the clerk of the Orphans' Court having jurisdiction of such estate; whereupon each share when ascertained, or if previously ascer- tained shall vest in said trustee. § 3. That such married woman shall have a right to dispose of any such property, real or personal, by will ; and in case of her death, without having made such disposition, the same shall be divided and distributed as in other cases of intestacy. An Act for the relief of married women in certain cases and for other purposes. § 1. That the courts of chancery shall have and exercise jurisdiction over the estate, real and personal of all persons, who by reason of imbecility, intemperance, or profligacy, are unfit, or incapable of conducting and managing their own affairs, and are wasting and squandering their estates ; and have a wife or child or children, such child or children being under the age of twenty-one years, and which wife or child or children are likely to be greatly injured, neglected, or brought to want by such incapacity and wasting ; and shall also have jurisdiction over the earnings and estates of married women, in the cases hereinafter named and provided. § 2. That the wife and child or children, or any or either of them, the said child or children, being under the age of twenty- one years, of any person unfit or incapable as aforesaid, or sup- posed to be, so unfit or incapacitated, may by their next friend or guardian, file a bill in chancery, to inquire into, and try the fact of unfitness or incapacity, and of the wasting and squan- dering aforesaid, and for general relief; and said bill and the proceedings thereon shall be governed by and conducted ac- cording to the rules and practice in chancery ; and the chan- cellor shall have the power pending such bill to provide for [725] ALABAMA. tbe safe-keeping and preservation of the estate of the defendant, and for such support and maintenance for the complainants as the equity of the case may require. § 3. That wheneyei; it shall be decreed that any person is unfit or incapacitated as aforesaid, and is wasting and squander- ing his estate as aforesaid, then the said court shall have power to provide for the preservation and safe-keeping of the estate of such persons, and out of such estate to provide for the sup- port and maintenance of the wife and child or children, under the age aforesaid, of such person, and the education of the child or children of such person under the age aforesaid, saving, re- serving, and protecting the rights of creditors in all cases. § 4. That when any person shall have abandoned his wife or is unfit or incapacitated as aforesaid, and shall have wasted his estate, or from any cause shall have no estate beyond what the law exempts from sale under execution, and the wife of such person, by her own personal industry shall be able to maintain herself, or maintain herself and accumulate property, then she may by her next friend apply to a court of chancery to have her earnings and accumulations, the result of her labor and in- dustry, protected and secured to her sole and separate use, in the same manner that the separate estates of married women are now protected and secured by the courts of chancery. § 5. That no costs whatever shall be taxed against such mar- ried woman, or her next friend, in any suit proceeding or pro- ceedings instituted, prosecuted, or had in conformity with or by virtue of the provision of the fourth section of this act. § 6. That the property of the wife at the time of the marriage, or which she may receive by descent, bequest, or gift, shall not be subject to the debts or liabilities of the husband, contracted or incurred before the marriage; nor shall the husband be liable to pay the antenuptial contracts or liabilities of the wife further than the property received by the wife ; but such pro- perty received by the wife shall be liable to her debts, notwith- standing the termination of the coverture? ' Session Laws, 1845-6, pp. 23, 24, and 25. [726] ALABAMA, NOTE. In this state the wife's separate estate is alone liable for her antenuptial dehts.' All of her property held before, or acquired after, marriage is secured to her separate use.' The husband is her trustee, but not liable to account for profits.' She need not be of full age to release her dower.* The proceeds of a sale of her property are her separate estate, which the husband may use as he deems most beneficial to her.' He may receive property coming to her. Her estate is liable for necessaries for the family. If suit is brought against the husband, and execution is not satisfied, her separate estate may be sold by order of court. She may dispose of her property by will.^ If the husband is unfit to manage her estate, she may be empowered,' or a trustee appointed.* Marriage settlements must be recorded.^ > Alabama Code of 1852, sec. 1981. = lb. sec. 1985. ' lb. sec. 1982. « lb. 1986-1989. » lb. sec. 1983. ' lb. 1994-5. • lb. sec. 1358. * lb. sec. 1998-2002. ' lb. sec. 1292. — See also Parsons on Contracts, 306. [727] LOUISIANA. • In Louisiana full provisions exist as to the settlement, admi- nistration, recovery, subject matter, &c., of dowry, and the rights of both parties therein, effect of insolvency of the husband, mari- tal portion. Civil Code, Art. 2317-2354, 2358, 2359; as to the administration, frats, &o., of the extradotal effects, Id. Art. 2360- 2368. — The wife has a legal mortgage on her husband's immov- ables (which he may release by giving a special mortgage to the satisfaction of a family meeting, &o., or in accordance with the stipulations of the marriage contract) ; but it shall not be lawful to stipulate that no mortgage shall exist. Id. Art. 2357, Eev. Stat. (1856) p. 242, Tit. Husband and "Wife; and a privilege on his immovables for a restitution of her dower, &c.. Id. Art. 2355-2367, 2367, 3182, 8287.— This is in lieu of dower. Id. Art. 3219, and is seventh in the order of preference. Id. Art. 3221. — A partnership or community of acquests or gains exist by ope- ration of the law in all cases. But the parties may modify or limit it, or agree it shall not exist ; in which case there are pro- visions preserving to the wife the administration and enjoyment of her property and the power of alienating it as if paraphernal with reference to the expenses of the marriage and liability of the husband. Id. Art. 2312, 2369, 2370, 2393-2398.— This com- munity consist of the profits of all the effects of which the hus- band has the administration and enjoyment, either of right or in fact; of the produce of the reciprocal industry and the labor of both husband and wife; and of the estates which they may ac- quire during marriage, either by donations made jointly to them both, or by purchase, or in any similar way, even though the purchase be in the name of one and not of both. Debts con- tracted during marriage enter into this partnership and must be acquitted out of the common fund ; but those contracted before marriage, out of individual effects. The husband is the head [728] LOUISIANA. and master of the community ; administers its effects, disposes of the revenue, and may alienate by unincumbered title, without the wife's consent. Id. Art. 2371- 2373. — The wife cannot appear in court without the authority of her husband, though she may be a public merchant, or hold her property separate from him. Even then she cannot alienate, mortgage, or acquire by gratuit- ous or unincumbered title without his written consent. She may be authorized by the judge of probate upon his refusal, and if separated from bed and board has no need of authorization of her husband. If a public merchant, she may, without being em- powered by him, obligate herself in anything relating to her trade ; her husband is also bound if there is a community of property. She is considered a public merchant if she carries on a separate trade, but not if she retails only the merchandise of the commerce carried on by him. If the husband is under interdiction, or absent, the judge may authorize her to act as if unmarried. She may make a will without his authority. Id. Art. 121, 132, 1239, 1469, 1779.— But she cannot become exe- cutrix without his consent, or the court's. Id. Art. 1659. — She may act as a mandatory. Id. Art. 1780. — Neither party can be a witness for or against the other. Id. Art. 2260.— She may, by marriage contract, determine the rights of property ; but cannot change the legal order of descents (this restriction not affecting donations inter vivos or mortis causa, or donations by the mar- riage contract according to the rules for donations inter vivos or mortis causa) ; nor derogate from the husband's rights over the person of his wife and children, or as head of the family ; nor with respect to children if he survive the wife, nor from the prohibitory dispensations of the code. Id. Art. 2305-2307, 2316. — The property of married persons is divided into "sejoarate" and "common," and the separate property of the wife into " dotal" and "extra dotal," or "paraphernal." The "dotal" is that which the wife brings to the husband to assist him in bearing the ex- penses of the marriage establishment. Id. Art. 2314, 2315, 2317. — There are special provisions as to conveyances and disposition of the community property and gains ; effect of dissolution of marriage ; the ability of the wife to exonerate herself from debts contracted during marriage by renouncing the partnership; the effects of such renunciation ; death ; survivorship ; separation a mensa et ihoro; separation of property during the coverture; [729] LOUISIANA. rights of creditors, &o. Id. Art. 2373-2392, 2398-2412; Eev. Statutes, 1856, p. 142, Tit. Husband and Wife ; the absence of one party. Code, Art. 65. — Either party, by marriage contract or during marriage, may give to the other all he or she might give to a stranger. Eev. Stat. 1856, p. 79. — Property acquired in the State by non-resident married persons, whether the title is in either, or their joint names, is subject to the same provi- sions as owned by citizens of the State. Eev. Stat. p. 103. — If husband or wife die intestate, without ascendants or descend- ants, his or her share in the community property is held by the survivor in usufruct for life ; if the deceased intestate leave issue of the marriage, the survivor holds such issue's inheritance in usufruct till death or second marriage. Eev. Stat. pp. 103, 104. — A married woman, in certain cases, may be authorized to con- tract debts and give mortgages ; or renounce her rights in favor of third persons ; or appoint an agent. Eev. Statutes, pp. 560, 561. Lib. Homar. [730] ARKANSAS. MARRIED WOMEN. § 22. The property of a female, -whether real or personal, and whether acquired before or after marriage, in her own right, shall not be sold to pay the debts of her husband contracted or damages incurred by him before marriage.' § 1. Any married woman may become seised and possessed of any property, real or personal, by direct bequest, demise, gift, or distribution, in her own right and name, and as her own property: Provided, The same does not come from the husband after coverture. § 2. Hereafter, when any woman possessed of a property in slaves shall marry, her property in such slaves and their natural increase shall continue to her, notwithstanding her coverture ; and she shall have, hold, and possess the same as her separate property, exempt from any liability for the debts or contracts of the husband. § 3. When any woman during coverture shall become en- titled to or possessed of slaves by conveyance, gift, inheritance, or distribution, such slaves, together with their natural increase, shall inure and belong to the wife, in like manner as is above provided as to slaves which she may possess at the time of marriage. § 4. The control and management of all such slaves, the direction of their labor, and receipt of the production thereof, shall remain to the husband agreeably to the laws heretofore in force ; and all suits to recover the property or possession of ' Kevised Statutes, chap. 60, sees. 19-22; English's Digest of the Statutes of Arkansas, p. 49, chap. -67, Execution. [731] AEKANSAS. such slaves shall be prosecuted and defended, as the case may be, in the joint names of the husband and wife. § 5. The slaves owned by a feme covert, under the provisions of this act, may be sold by the joint deed of husband and wife, executed, proved, and recorded, agreeably to the laws now in force in regard to the conveyance of the real estate of the feme coverts, and not otherwise. § 6. All slaves which may have heretofore come to the hus- band through the wife shall not be subject to any liability for the debts of the husband hereafter to be contracted ; Provvkd, however, that nothing in this section contained shall be con- strued as to impair the husband's rights to dispose of the same as he may now do under the existing laws. § 7. Before any married woman can avail herself of the privileges and benefits of this act, she and her husband shall make out a schedule of the property derived through her, under oath, which shall be verified by the oath of some other reputable person ; which schedule shall be filed in the recorder's office of the county within which the property is, as well as which they live. § 8. The operation of this act shall not interfere with the collection of debts already contracted by any married man, or which shall hereafter be contracted before the filing of the schedule referred to in the preceding section. [Act of December, 1846.] NOTE. In Arkansas, a feme covert may be seised in her own right of any property not coming from the husband. Digest of Ark. Statutes, chap. 104. — Such property is not liable for the debts of the husband contracted before marriage. Rev. Stat. chap. 69. — Nor is her property in slaves liable for her husband's subsequent debts. Dig. of Ark. Stat. chap. 104. — He has the management of her slaves, and suits for their possession must be prosecuted and defended jointly. lb. — The homestead and a certain amount of personal property is exempt from execution. Id. chap. 67 ; Public Acts of 1852, p. 9. — There are provisions for recording marriage contracts. Digest of Statutes, chap. 103. — A married woman cannot be executrix or administratrix. Id. chap. 4. — There are other provisions for the wife in case of abandonment by husband. Id. chap. 102. — And as to dower. Id. chap. 4, chap. 69 ; Hill's Adm'rs v. Mitchell, 5 Ark. Rep. 608 ; Menifee's Adm'r v. Menifee, 3 Eng. Reports 9. — A married woman cannot make a will unless empowered by a marriage settlement or by her husband. Digest of Statutes, chap. 170. [732] GEORGIA. In Georgia, marriage settlements, if not recorded ■within a specified time, are invalid as to bona fide purchasers, creditors, or sureties, without actual notice, becoming so before actual recording. Cobb's Digest of Georgia Statutes, 1851, p. 180. — The husband takes administration and is sole heir of his de- ceased intestate wife. Id. p. 294; Appendix, p. 1129; Liprot V. Holmes, 1 Kelly, 381; McGinnis v. Foster, 4 Ga. 377 ; Lee v. Wheeler, Id. 541. — And widows of intestate husbands without issue. Cobb's Digest, p. 295. — On marriage, since February 22, 1785, the wife's real estate vests in the husband, like personalty; real and personal property are put, in respect to distribution, on the same footing. Id. p. 305 ; Kent's Commentaries, 8th edit., p. 109, note A; 4 lb. 27. — There are provisions as to the mar- riage of an administratrix. Id. pp. 327, 331 ; of a person who has previously made a will. Id. p. 347 ; disabling the husband to sell a certain amount of property, unless the wife, of her own choice, join in the-conveyance, Id. pp. 389-391. — The wife of an idiot or a lunatic is generally entitled to the guardianship. Id. pp. 342, 343. — If deserted, her earnings vest in herself. Laws of 1851-2, tit. 16, art. 4, p. 327.— By an act approved February 28, 1856, Laws of 1855-6, tit. 19, No. 176, p. 239, a husband thereafter married is not liable for his wife's debts, further than the property received through her will satisfy, and such pro- perty is not liable for his debts existing at the time of the marriage. [733j SOUTH CAROLINA. Iisr South Carolina, having a right to land or any other action, the wife may appoint an attorney to bring suit, either in her own name or joined with her husband. Statutes at Large, vol. 2, p. 587. — And the husband can have no control over the suit without her voluntary consent, given in open court and re- corded. Id. — Anj feme covert, being a sole trader, is liable to be sued, as if single. Id. p. 593 ; and may be sued, naming the husband for conformity, Id, vol. 3, pp. 620, 794, note, and cases cited. — A husband cannot be compelled to make distribution of the personal estate of his wife, but it becomes his upon adminis- tration. Id. vol. 2, p. 529. — As to the light in which the con- tract of marriage is considered, see Statutes at Large, vol. 2, p. 733, note, and 10, p. 357, note. — Marriage settlements must be recorded, or else, as to creditors, lonafde purchasers, and mort- gagees, are deemed void. For the various laws as to recording, see Statutes at Large, vol. 4, pp. 656, 657, 767, note ; vol. 5, Preface, pp. 203, 204 ; vol. 6, pp. 213, 483, 636, 637, Appendix; vol. 7, p. 234. — As to the requirement of a specification or a schedule of the property covered by a marriage settlement, manner of executing, and effect of want of, see Id. vol. 5, p. 204. — The will of a. feme covert is void. Id. vol. 3, p. 342. [734] NOETH CAROLINA. Isr North Carolina, a marriage settlement or contract is inva- lid against creditors if a greater value is secured to the intended wife and children of the marriage than is received w;ith her marriage, and the estate of the husband free from debt at the time of marriage. In case of suit, the burden of proof is on the person claiming under such contract. A legacy to the wife in general words, and not in trust, or a distributive share of an intestate estate falling to her during coverture (if the estate of the husband and wife is not at the time of the marriage thus sufBcient), is taken as a part of the portion received with the wife. Eev. Code, chap. 37. — Eeal estate belonging to the wife at the time of marriage cannot be sold or leased by the husband, except with her consent, ascertained by private examination, and no interest of the husband therein is subject to execution against him. Id. chap. 56. — The proceeds of the wife's land sold by court are secured to her or her representatives. Id. chap. 82. — Provisions also exist by which a married woman may insure the life of her husband for her sole benefit. Chap. 56. — Power may be given her by will, deed, &c., to dispose by will of property thereby conveyed. Chap. 119. — If she marry under the age of fifteen, unless the father assents to the marriage in writing, her estate is secured to her separate use. Chap. 68. [735] CONNECTICUT. OF MARRIAGE.^ Be it enacted by the Senate and Mouse of Bepreseniatives, in General Assembly convened: — § 7. The interest of a married man in real estate of his wife, belonging to her at the time of their intermarriage, or which she may have acquired by devise or inheritance during cover- ture, shall not be liable to be taken by execution against him, during the life of the wife, or the life or lives of children, the issue of such marriage : Provided, That nothing herein contained shall affect the remedy upon any contract made prior to the first day of July, 1845. § 8. Whenever any married woman shall earn wages by her own labor, payment of the same may be made to her, and when made, shall be valid in law, as though made to her husband ; and no debt for the wages of a married woman, earned as afore- said, shall be liable to be taken by virtue of any process against her husband. § 9. Payment to a married woman of any money deposited by her, either before or after marriage, with any individual, incorporated bank, savings bank, or institution for savings, shall be a valid payment, and her receipt for the same shall have the same effect as the receipt of her husband : Provided, That nothing herein contained shall affect the right of any creditor of her husband to levy on such money by attachment or exe- cution.^ ■ Title VII. An act concerning the domestic relations. Chapter 1. ^ The Revised Statutes of the State of Connecticut. Published by authority of the General Assembly. Hartford, 1849. Pages 272, 273, 274. [736] CONNECTICUT. OF THE EXECUTION AND PROBATE OF WILLS, AND OF EXECUTORS AND ADMINISTRATORS.' § 1. That all persons at the age of twenty-one years, and of sound mind, may dispose of their real estate by will; all persons of 'the age of seventeen years, and of sound mind, may dispose of their personal estate by will; and married women may dis- pose of their estate, both real and personal, by will, in the same manner as other persons.^ NOTE. In Conneotiont, the husband's interest in wife's real estate cannot he taken for his debts, during her life or that of her children. Compiled Statutes, 1854, chap. 1. — So of her wages. lb. — All real estate conveyed to her during marriage, paid for by money earned by her personal service, is to her sole use. Compiled Statutes, p. 377. — And the proceeds of her real estate are hers, in equity, and not liable for his debts. ' PubUo Acts of 1850, chap. 31, p. 377 Personal estate coming to the husband in right of the wife, or through her as the meritorious cause, is held by him as trustee for her use. Compiled Stat. p. 1 ; Public Acts of 1849, chap. 20 Excepting so far as he has paid her debts contracted before marriage. Public Acts of 1855, chap. 43. — And may be required to give bonds as such trustee, or be removed and another ap- pointed. Compiled Statutes, tit. 7, chap. 1. — Her receipt for money deposited by her in any bank or savings bank is valid. Comp. Stat. tit. 7, chap. 1. — There are also provisions as to executors, guardians, &c. Public Acts of 1856, chap. 37. — PoUcies of insurance on life, for her benefit, if the premium does not exceed $150, or is paid from her private property, are secured to her. Compiled Statutes, tit. 7, oh. 1. — ^All personal property coming to her during his abandonment of her, or their separation from his abuse or intemperance, is hers alone ; and he thereby loses all control of all her property. Public Acts of 1850, ch. 33. — During the abandonment she may act as a sole trustee, and, after it has continued three years, may, with leave of court, execute deeds of her real estate. Public Acts of 1856, chap. 36. ' Title XIV. An act for the settlement of estates, testate, intestate, and insolvent. Chapter 1. * Revised Statutes of Connecticut, page 345. 47 [ 737 ] ANALYTICAL INDEX. CHAPTiJR 1. Marriage, SECTION is a civil contract, and its definition . 1> two kinds of disabilities . 2» present English marriage acts . 2 extends to England only . 3 lex loci governs 4-5? moral obligation of . . . 6*-T=-8 every nation regulates for itself 9 capacity and evidence 9%note) when presumed 9' ' Bishop on Marriage and Divorce, sec. 29 to 34 ; 2 Parsons on Contracts, page 15 ; Addison, 596-640 ; 2 Kent's Com. 75-93 ; 1 Blaokstone's Com. 434 ; 2 Greenleaf, 460-343 ; 1 lb. 107. ' Bishop on Marriage and Divorce, sec. 83 to 91. ' lb., chapter viii. sec. 124-151 ; Story's Conflict of Laws, sec. 79-81 ; 1 Burge, 184-7 ; 1 Washburn on Real Property, sec. 4, page 171 ; 4 Cushing, 49 ; 16 Mass. 157 ; 2 Parsons on Contracts, 104 to 105-111 ; 2 Kent, 91-4 ; 1 Blaok- stone, ed. of 1853 (note 26). * Bishop on Marriage and Divorce, sec. 361-2-3-4-5 ; Story's Conflict of laws, sec. 108 to 209. * Bishop on Marriage and Divorce, sec. 34-5-6-6, a 1. 8 2 Greenleaf, 460-4-343-9 ; lb. 107. ' For law of common consent, see Bishop on Marriage and Divorce, chap, viii. sec. 152 to 175 ; 2 Kent. 85. For void and voidable contracts of, lb., chap. iv. sec. 46 to 62 ; 2 Kent. 95. For want of mental capacity, lb., chap. ix. sec. 176 to 190. For want of age, lb., chap. x. sec. 191 to 200 ; 1 Bright. 4. For nullity of marriage, grounds for, lb., chap. v. sec. 62 to 97 ; Addison, 603. For fraud in, lb., chap. vi. sec. 98 to 123. For conflict of laws of, lb., chap. vii. sec. 124 to 151, and Story's Conflict of Laws, sec. 160 to 190. [739] Chap. 3. analytical index. CHAPTER 8. Antenuptial Conthaots, before and in contemplation of, good . .10' when valuable and good against creditors . 10^ marriage a sufficient consideration . . . 11-28 assurances by letters enforced against creditors . 11 when fraudulent conveyances annulled . . .12 such contracts regulated by lex loci . ■ ■ 13 when sustained against creditors . . .14 when made good (ea;pos 451-2 general principles of . , . • • 453-57 case of Jarvis & Trabne v: Qutgley (10 B. Monroe, 104) . 458 divorce bars — ^terminates curtesy . . . 462-3* a husband's interest is that of a freehold . . . 464' marital rights as to, well-defined at common law' . 465 there must be seisin in fact to entitle husband to » .466 construction of the wills in Taylor v. Gould, 10 Barbour, 389, and Colvin v. Smith, 17 Barb. K Y. 160 . . 465-83 Carr & Wife u Estill (16 Ben. Monroe, 309) . . 484-88' CHAPTEK 18. iDowER, how definded . . . . . . 489* case of Denton v. Nanny (8 Barbour, N. Y. 620) . 489-506 general requisites of and as to an equity of redemption where she joins in a mortgage . . . 497° effect as to her being omitted as a party . . 498-500 general principles ..... 501-3 case of Jackson v. Edwards (7 Paige, 386) . . 504 ' 1 Washburn on Real Property, pages 141-2 ; Bishop on Marriage and Di- vorce, sec. 666 ; 1 Greenleat's Cruise, 150, and Oldham v. Henderson, 5 Daba, 255 ; Story's Equity, seo. 1413. * 2 Blackstone, 126 ; 1 Washburn on Real Property, seo. 1, p. 128. ' See also Johnson v. Johnson, 2 J. P. Metcalf. * For the nature, as well as a comprehensive history of dower, See 1 Wash- bum on Real Property, seo. 1, chapter vii. pages 146 to 152; and sec. vi., same chapter, pages 250 to 260. * See also 1 Washburn on Real Property, see. 3, chapter vii. pages 169 to 194. [748] ANALYTICAL INPEX. ChAP. 19. case of Bell v. Mayor of N. Y. (10 Paige, 566) 505 common law gave dower in Icsgal estates only . . 507' extended alsonowtoequitabletitles held at husband' sdea^tli 507' but not in equitable title sold before his death . .507 nor where sale was by parol even before marriage, but conveyed after marriage . . . .507 case where allowed when all occurred same day 50t it is a beneficial seisin in husbaiud that gives dower . 508' if husband sells before marriage or transfers an equitable title after marriage and .obtains Ijhe lega,! title, it is not beneficial, but in trust /or his vendue, fl,nd dowier does not attach ...... 509 dower attaches where the issue of husband may inherit . 510 not in partnership property as such until debts of part- nership are paid* . . . ■ • 511 when and from what period rentg are allowed . 512-15* of what she may be, endowed .... 516-19 case of Vartie v. Underwood (18 Barber N. T. Rep. 562) 520-29 abolished in Indiana, provision absolute in fee . 529 (note) CHAPTER 19. Qp Assignment OF Dower IN Equity, remedy to perpetuate testimony as to . . . 530" protect potential right to . . • 530 the most appropriate remedy at this day . . 531-2' opinion of Lord Eldon as to . • 533 Alvanly . . - .534 ' See also 1 Washburn on Real Pi;op.erty, sec. 2, chapter vii. pages 152 to 169. ' See 1 Washbnm on Keal Propertji, pages 160 to 168. » See 1 Washburn on Real Broperty, p. 9, pages 176 to 181 ; lb. part 12, pages 159-160. « See Hodges v. Holeman, 1 Ifana, 52, and Galbraith v. Gedge, .16,3. Monroe, 634. ' See 1 Washburn, pages 231 to 233. 6 See Welford's Equity, 140. Note. And it follows as incidental that possession be awarded of the prem- ises assigned. And for the reference to master to ascertain and assess rents, see 2 Darnel s Chancery Practice, page 788. „ , „ _l ' See Story?3 Equity, sec. 577-8 ; and 1 Washburn on Real Property, para- graph 25, page ^43. f 749 1 Chap. 21. analytical index. opinion of Sir Thos. Trevor .... 535 great extent of relief in equity . . . 536-t* exception as to the 6ona^cfe purchaser . . 538-9 preference for equity ..... 539^ CHAPTER 30. Legal Remedy for Dowee, remedy by action at law and counts in 2 Saunders' Rep. 44 540' mode of assessing value ..... 541 statutory provisions of Merton as to damages, &c. . 542' equity allows the same . . . . .542 requisites of finding for a judgment . . . 543' if defective how remedied ..... 543 judgments distinct and character thereof . . 544 seisin of husband descends to the heir . . . 545 character of defence in, at law .... 545-58 where mainly as to validity of marriage . . 548-58 CHAPTER 2 1 . How Dower is Barred, alienage bars dower ..... 559° where the husband became a citizen of Texas, died, and his widow claimed dower in lands in Kentucky, it was denied ...... 560-62 expatriation like that of domicil determined by intention 563 as to aliens and denizens .... 564-66 ' See Story's Equity, sec. 577-8 ; and 1 Washburn on Real Property, para- grapli 25, page 243. ' See 2 Daniel's Chancery Practice, 787. ' As to this common law remedy by action of dower, see further, 1 Wash- burn on Real Property, part 11, page 226 to 231. ♦ See also, as to damages, 1 Washburn on Real Property, pages 231-241. ' See 1 Washburn on Real Property, paragraph 15, page 231. Note. Where an assignment becomes inoperative, from an eviction of the widow by a better title, it may be assigned de novo, if of common right; if not, then otherwise, there is an implied warranty attending the assignment. See 1 Washburn on Real Property, page 242 ; Beard v. Nuthall, 1 "Vermont Reports, 427 ; Newland on Contracts, page 70 ; Tevis' Ex'r v. McCreary, 3 Metcalf (in press) ; and the notes to Sec. 8 of Ky. Stat, in appendix, page 620, ante. The statute of Henry Vlll. also provided for such indemnity. » See 1 Washburn on Real Property, 1 vol. page 194, for the history of this ground. So also as to bar by forfeiture for crime, ib. 195, by elopement, ib. 195, by divorce, ib. 196, and see appendix Ky. Statute, page 626. [750] ANALYTICAL INDEX. jointure bars dower provisions of the Ky. stat. of 1852 Chap. 23. CHAPTER 22. Or Trusts to Wife's Separate TJsb, intention to have the sole and separate use will be duly executed .... when to exclude the husband . what expression or words will suffice those designated Clancy (pages 262 to 2T0) . construction of a deed decisions of Va. and Ky. rule in equity .... general principles the same in deeds as wills . the intent considered to wife's separate use cases where husband's marital rights are excluded exceptions to the rule rule as to advancements cases of resulting trust for the wife the case of Mountjoy and Wife v. Sashbrook, 8 Dana, 33 construction of the trust as to the fund, and its applica- tion in Thompson v. Thompson (2 Ben. Monroe, ITl) 566» 561» . 568^ 569 . 570 511 . 512 513 . 5t4 575 . 576 577-8 . 579 580 581-85 586-88 589 CHAPTER 23. Wife's Gifts,* savings of wife, and jewels, not considered assets of hus- band's estate . . . . .590 general rule at law, and now in equity sustained . . 591 where gifts survive to the wife . . . 592 gift from husband must be well sustained by proof . . 593 gifts of pin-money when valid . . . . 593 marketing, &c., when wife's pin-money . . . 594 wife's savings not liable to creditors . . . 595 and where stipulated for by a marriage agreement will be enforced . . . . . .595 ' See also, 1 Washburn on Real Property, page 217. ' See the case of Tevis' Ex'r v. MoCreary, 3 Metcalf, in print, and as ap- pended to the Ky. Stat, in appendix pages. ' The object of the statute of uses to do away with a double ownership of land. But equity has built up a system of equitable estates — trusts whereby the legal seisin and estate were in the trustee, and the beneficial seisin in the cestui que trust. See 1 Spence's Equity, 501, and 1 Washburn on Real Property, page 161-2, and Story's Equity, sec. 52 to 74. ♦ As to the wife's gifts, see Story's Equity. [751] Chap. 24. analytical index. where wife may claim arrears of pin-money, and for what period . • • • • _ • ^^^ the general principles of law as to pin-money by gift from husband ....■• 59t wife may acquire and hold paraphernalia agamst execu- tors, &c. . . . ■ • • 59T what considered paraphernalia . . . .598 a case of £3000 in the reign of Chas. I. sustained . 599 special gift ...... 600 the distinction of gifts by husband to the wife to her separate use, and as paraphernalia . . . 601 rules of the civil law as bona paraphernalia . . 602 when claim for preferred to legatee . . . 603 when assets marshalled on her behalf . . . 604 where pledged by husband— the consequences . 605 she may bar her right to by marriage settlement . . 606 paraphernalia entirely distinct from gifts from third per- sons to her separate use .... 601 the rule as to presents before marriage . . . 608 the general equity as to marshalling assets . . 609-10 when claim for paraphernalia preferred to general legacies 611-12 rulings as to, by Lord Macclesfield . . . 613 when the wife may require redemption against the hus- band's pledge thereof .... 614 rule as to ulterior devises . . . . .615 gift by wife of a slaVe in Kentucky, not good if not done as permitted by the statute .... 616 the case of Tate v. Austin (1 P. Williams, 264) . . 617 the wife's right of exoneration . . . 618 CHAPTER 34. Election, the general principles of election . . .619 the cases reduced to two classes . . . 620 the intention to require must be manifest . . .621 enforced upon the principle of compensation, not forfeiture 622 donor's intention not to be defrauded . . . 623 what requisite for an election .... 624 when depends upon implied or apparent intent . .625 *hen and where it occurs . . . . 621 discussion in M. u. B. (1 D. & B. Equity Rep. 6S4) . 628 Snelgrove v. Snelgrove . . . 629 a void devise not being sufficient to require an election . 630 ' [ 752 ] ANALYTICAL INDEX. Chap. 35. also held otherwise (1 Wharton, 490) general principles as to implied conditions where regarded as a cumulative provision no election the claim must be inconsistent to require it where necessity for it in cases of dower where no bar to dower distinction between dower and legacy where dower excluded case of Kinsy v. Howard (3 Harrington, 459) Puller V. Yates (8 Paige, 325) . should be in lieu of dower where there is a specific provision opinion of the S. G. U. S. . where charged with an annuity annual provision is no bar to dower White V. White (1 Harrison, 211) special acts amounting to an election opinion of Lord Camden . Duncan v. Duncan's Bx'rs (2 Yeates, 302) law as settled in New York in other States .... as to testamentary provisions in lieu of dower statutory provisions in several States . an election may be determined by matter in pais when she may retract ..... cases where infants, &c., cannot make a binding decision 631 632-36 631 638-9 640-1 642-44 644 . 645 646 . 648 649-50 . 651 652 653-56 65T-8 659 660 661 661-2 663 663 664 665-57 668 669 610 CHAPTER 25. Right op Election, does not make but confirms a p"e-ea;is