CORNELL LAW LIBRARY OJortt^U SJam ^rljoal SItbratg Cornell University Library KF 505.S37 1921 V.1 A treatise on the law of marriage, divor 3 1924 018 800 148 Cornell University Library 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/cu31924018800148 A TREATISE ON THE LAW OF MARRIAGE, DIVORCE, SEPARATION AND DOMESTIC RELATIONS By JAMES SCHOULEE Author of "Wills, Executors and Administrators"; "The Law of Personal Property"; Etc. SIXTH EDITION IN THREE VOLUMES By AKTHUE W. BLAKEMOEE Of tihe Boston Bar; Author of "Bhkemore and Bancroft on Inheritance Taxes"; The Article on Wills in "Cyo"; Etc. VOLUME I THE LAW OF DOMESTIC RELATIONS EMBRACING Husband and Wife, Parent and Child, Guardian and Ward, Infancy, Separation and Divorce ALBA]!fr, N. T. MATTHEW BEKDEE & OOMPAISTT INCOEPOEATED 1921 OoPTBiGHT, 1870, 1974, 1882, 1880, 1896, 1905, By JAMES SCHOUMIR. COFTBIGHT 1921, By MATTHEW BENDER & COMPANY, nircnBPOBATED. 2 PREFACE TO THE SIXTH EDITION It 18 over twenty years since any comprehensive work has been issued for the American Bar on the subject of Maeeiage, Divoece, Sbpaeation and Domestic Eelations. Conditions arising from the Great War increased the demand, already urgent, for a work on this branch of the law, and this new work is the result of the publisher's desire to meet the needs of the situation. This present work is an4nlargemeht^f Prof. James Schouler's former works on " Husband and Wife " and " Domestic Eblations." The plan of the present editor has been to preserve Schouler'a text intact, but the development of the law dxiring the last twenty- five years has made necessary the addition of many subjects not considered by him, and the thousands of new cases which the user will find in this volume have also rendered necessary a complete re-arrangement of the whole work. It is believed that substantially every case of importance during the last twenty-five years has been cited. Appreciation is hereby expressed for the valuable assistance rendered on certain chapters by Mr. William L. Scoville, of the Boston bar. ARTHUR W. BLAKEMORE. Boston, December 1, 1920. TABLE OF CONTENTS Volume I. PAET I. IITTEODTJCTOEY CHAPTEB. Page ! 1. Domestic Keliitioas Defined ; Earlier Writers 1 2. Plan of Classifloation, etc .'!..'.'.'.'!.'! 1 3. General Oharacteristics of the Law of Family '...'.'.'.'. 3 4. Law of Husband and Wife Now in a Transition State; Various Property Schemes Stated 5 5. Common-Law Property Scheme 6 6. Civil-Law Property Scheme 6 7. Community Property Scheme 8 8. The Eecent Married Women's Acts 11 9. Marriage and Marital Influence 12 10. General Conclusions as to the Law of Husband and Wife 13 11. Bemaining Topics of the Domestic Belations; Modern Changes... < 15 PAET II. HUSBAND AND WIPE. CHAPTER I. MABBIAGE. 12. Definition at Marriage ., ,.-. 18 13. Marriage More Than a Civil Contract 17 14. Marriage Void and Voidable 19 15. Essentials of Marriage 20 16. Disqualification of Blood; Consanguinity and AflSnity 21 17. Disqualification of Civil Condition; Race, Color, Sodlal Bank, Religion 24 18. Mental Capacity of Parties to a Marriage ■. . 25 19. Physical Capacity of Parties to Marriage ; Impotence, etc 28 20. Disqualification of Infancy 29 21. Disqualification of Prior Marriage Undissolved; Polygamy; Bigamy 31 22. Same Subject; Impediments Following Divorce 33 23. Force, Fraud, and Error, in Marriage 34 24. Force, Fraud, and Error, Subject Continued 38 29. Essential of Marriage Celebration 39 26. Same Subject; Informal Celebration 40 27. Same Subject; Informal Celebration 45 vii Vlll TABLE OF CONTENTS IN VOL. 1. Page 5 28. game Subject; Formal Celebration 48 29. Same Subject; Formal Celebration 50 30. Consent of Parents and Guardians 52 31. L^alizing Defective Marriages; Legislative Marriage 5* 32. Restraints Upon Marriage 55 33. Marriage in Another State or Country 56 CHAPTER II. EFFECT OF MABBIAGE; PEBSON OF THE SFOT7SE. 5 34. Law of Husband and Wife ; Order of Examination 57 35. Person of the Spouse; Common-Law Principal of Converture; Baron and Feme 68 36. Husband Head of the Family at Common Law; Reciprocal Rights and Duties of the Union 58 37. Duty of Spouses to Adhere or Live Together 69 38. Breach of this Obligation; Desertion 60 39. Duty of Making Cohabitation Tolerable 61 40. The Matrimonial Domicile 62 41. Same Subject ; Husband Establishes the Domicile 63 42. Same Subject; Modifications in Wife's Favor; Recent Instances.. 64 43. Domicile Relative to Alien and Citizen 66 44. Woman's Naime Changed by Marriage 66 45. Husband's Duty to Render Support 67 46. Criminal Liability for Failure to Support 69 47. Wife's Duty to Render Services 71 4)8. Right of Chastisement and Correction 72 49. Husband's Right of Gentle Restraint 73 50. Wife's Right to Submit to Surgical Operation 75 51. Right of Action for Death 76 62. Regulation of Household, Visitors, etc 76 53. Custody of Children 77 54. Remedies of Spouses Against One Another for Breach of Matri- monial Obligations 77 CHAPTER m. THE SPOUSE AS A CBIMINAI,. S 55. Coverture Aflfecting Private Wrongs and Public Wrongs 79 56. Presumption of Husband's Coercion and Wife's Innocence 79 57. Presumption of Wife's Innoeenice Applied 80 56. Coercion May Extend to a Series of Crimes 82 59. Offences Against the Property of Either Spouse 88 ea Adultery 83 61. Separate Penalties for Women 84 CHAPTER IV. DISQUALIFICATIONS AS WlTKBSSia. g 62. Mutual Disqualification as Witnesses 86 63. Rule Restricted to Bona Fide Spouses 86 64. Common-Law Exceptions 87 66. Crimes or Injuries Inflicted by One on the Other 87 6a Adultery 89 67. Joint Defendants 89 68. Res Gestae or Agency 90 69. Before or After Termination of the Relation 91 70. Confidential Communications 98 71. Interest of Witneso 94 TABLB OF OONTKNTS IN VOL. I. Ix CHAPTEK V. QSHXE&Al. iniiQUALITIKS. Pag« i 7a What Each Spouse Yields aa to Property S« 73. Husband's Liability for Wife's Contracts; Wife's Immunity 97 74. Wife's Immunity, etc., aa to Torts 97 76. When Wife is Treated as Feme Bole 97 CHAPTER VI. wipe's ANTBNtrPTIAI, DEBTS. 16. Rule Stated 99 77. Extent and Duration of Liability 100 78. Hardship of Rule 101 79. Actions to Recover Antenuptial Debts 102 80. Effect of Bankruptcy 103 81. Effect of Contract Between Spouses as to Antenuptial Debts 103 Sa Effect of Statute , 104 CHAPTER VII. KEOESSABIES. 9 83. Foundation of Common-Law Doctrine 105 84. Summary of Modern Rule 106 85. Liability of Husband — Rule Stated 108 86. To Wife 109 87. To Relatives of Wife 109 89. To Third Persons 110 89. For Necessaries of Putative Wife Ill 90. For Necessaries of Family in General 112 91. For Articles in Part Necessaries and in Part Not 113 92. For Non-necessaries 113 93. Agency of Wife to Bind Husband for Necessaries 114 94. Rule of Good Faith 117 95. Effect of Infancy 117 96. Effect of Notice Not to Sell to Wife 117 97. Effect of Giving Credit to Wife or Third Person 119 98. Effect of Money Provision for Wife 120 99. Effect of Husband's Ratification of Wife's Unauthorized Pur- chases 121 100. Effect of Separation in General 123 101. Effect of Abandonment by Husband 124 102. Effect of Abandonment by Wife 126 103. Effect of Separation by Consent 128 104. Effect of Wife's Adultery 130 105. Effect of Divorce and Allowance of Alimony 131 106. Effect of Banishment, Insanity or Imprisonment 131 107. Wife's Right to Sell Property to Obtain Necessaries 132 108. Liability of Wife 133 109. What Constitutes Necessaries — In General 135 110. Illustration 136 111. Counsel Pees 137 11.2. Medical Servioes 138 113. Dental Services 139 114. Last Sickness and Funeral Expenses 139 115. What are Not Necessaries l**) lie. Joint Statutory Liability for " Family Expenses " 141 117. Measure of Liability .1** 118. Effect of Separation 144 TABLE OF CONTENTS IN VOL. I. Page 119. House Rent 1** 120. What Constitutes " Family Expenses " 1*5 121. What are Not " Family Expenses " 1*» CHAPTER VIII. LIABILITT FOB TOETS OP 'WIFE. 122. Sole Liability of Husband — General Rule Stated 1*8 123. Presumption of Coercion 14* 124. Necessity of Valid Marriage 15*^ 125. Extent of Liability 150 126. For Torts of Wife Arising from Contract 150 127. For Devastavit by Wife 152 128. Sole Liability of Wife 152 129. Joint Liability of Spouses 152 130. Effect of Statute 153 131. Wife's Liability Unde.r Statute 155 132. For Torts of Her Agent 157 133. Damages 157 134. Engliab Rule in Equity 15* CHAPTER IX. THE WIFE AS AGENT OF THE HnSBAND. 135. General Considerations 159 136. When Wife May Bind Husband as Agent 160 137. Extent of Power as Agent 162 138. Evidence of Agency 16(2 139. Wife's Agency Under Bxpiess Power 163 140. Wife's Agency Under Implied Power 163 141. In Household Matters and Care of Husband's Property 164 142. As to Real Estate 164 143. Effect of Contract by Wife in Her Own Name 165 144. Effect of Husband's Ratification of Wife's Unauthorized Acts. . 165 CHAPTER X. EFFECT OF COVEETDBE UPON THE WIPE'S PERSONAI, PBOPEBTT. § 145. Effect of Marriage — Operation as Gift to Husband 167 146. Exception to Rule — Personal Property Held by Wife in Trust. . 169 147. Wihat Law Governs 170 148. Extent of Husband's Right — Effect of Divorce 171 149. Choses in Possession. — In General 171 150. Personal Apparel of Wife 173 151. Money 173 152. Earnings of Wife 174 153. Property Purchased With Wife's Earnings 176 154. Bank Deposits 176 155. Slaves 176 150. Proceeds of Joint Labor of Spouses 177 157'. Choses in Action — What Constitutes in General 177 158. Necessity of Reduction to Possession 179 159. Effect of Waiver or Failure to Reduce to Possession 160 160. Effect of Bankruptcy, Insolvency and Assignment for Benefit of Creditors 182 161. What Constitutes Reduction to Possession — In General 183 163. Effect of Insanity of Husband 184 163. Effect of Possession by Husband 184 TABLE OF CONTENTS IN VOL. I. xi Page 164. Constructive Possession 185 165. By Eelease 185 166. By Pledge '.'...'.'..'. 185 167. By Suit or Arbitration 186 168. By Assignment 188 169. By Delivery to Agent of Husband 190 170. Joint or Sole Eeceipt 191 171. As to Commercial Paper 191 172. As to Legacies or Distributive Shares 193 173. Aa to Money 194 174. As to Shares of Stock 194 175. Wife's Equity to Settlement — In General 195 176. Nature of Eight 196 177. EflFect of Divorce or Separation 196 178. Effect of Antenuptial Settlement or Jointure IW 179. Effect of Waiver 19i8 18a. Effect of Fraud of Wife 198 181. As to Property in Hands of Third Persons 198 182. As to Vested Estate 200 183. As to Life Estates and Reversions 200 184. As to Property in Litigation 201 185. Amount of Settlement 202 CHAPTER XI. EFFECT OF COVEETDKE TTPOIT THE VFIFE'S CHATTELS BEAL AND REAL ESTATE. 186. Wife's Chattels Real; In General 204 187. Nature of Husband's Interest 205 188. Husband's Right to Alienate 207 189. What Will Bar Wife's Rights 207 190. Effect of Deed to Wife 209 191. Husband's Right in Real Estate of Wife; General Rule Stated. . 210 192. What Law Governs 212 193. As to Estates in Exipectancy 212 194. As to Life Estates and Joint Tenancies 212 195. As to Property in Possession of Third Person 213 196. Rights of Husband's Creditors 213- 197. Husband's Power to Alienate Fee 214 198. Husband's Power to Mortgage Fee 215 199. Husband's Power to Lease Fee 215 200. Effect of Husband's Contract to Convey Fee 217 201. Husband's Right to Dissent from Purchase, Gift or Devise to Wife 218 202. Effect of Conversion 218 203. Effect of Alienage or Attainder of Husband, and Statute of Limitation. 219 204. Effect of Divorce 219 205. Husband's LiaJbility for Waste 22a 206. Effect of Statute 220 207. Effect of Adverse Possession ; Generally 221 208. By Husband 222 209. Effect of Wife's Agreement to Convey or Purchase 223 210. Effect of Wife's Power of Attorney to Convey 224 211. Form and Requosites of Wife's Conveyance in General 225 212. Joinder of Husband 227 213. Acknowledgment 228 214. Privy Examination of Wife 229 215. Effect of Abandonment 231 216. Effect of English Statute 231 217. Validity of Wife's Mortgage 231 218. Wife's Liability on Covenants 233 219. Effect of Fraud or Duress 234 ^^^ TABLE OF CONTENTS IN VOL. L Pag* S 220. Effect of Estoppel E34 221. Avoidance [ 23ft 222. Actions. .W ... . 23« CHAPTER XII. EFFECT OF COVEBTUEE ON WIFE'S CONIBACTS IN GENERAL. § 22». Wife's Disability to Contract — Common-Law Rule Stated 239 224. What Law Governs 240 225. Exceptions to Rule . 242 226. Extent of Disability .....!!!!.!!.... 242 227. Removal of Disability . 243 228. Effect of Ratification '....'.'. 244 229. Efifeot of Married Women's Acts 244 CHAPTER XIII. EFFECT OF COVEETUKE ON PABTICULAE CONTBACTS OF WIFE. § 230. Promissory Notes — As Maker or Indorser 247 231. As Accomodation Party 250 232. For Husband's Debt 250 233. What Law Governs 251 234. Suretyship — In General 261 235. For Her Husband 252 236. Guaranty 254 237. Contracte for Services 254 238. Confession of Judgment 265 23©. Contracts for Sale of Land 255 240. Sealed Instruments 257 241. Releases 267 242. Covenants 257 CHAPTER XIV. THE wife's pin-money. 5 243. The Wife's Pin-Money ; Nature and Origin 269 244. Separate Estate and Paraphernalia Distinguished 260 246. Arrears 260 246. House-Keeping Allowance ggO CHAPTER XV. wife's equitable seipajeate estate. I 247. Origin, Nature and History ; In England 262 248. In the United States 264 249. Statutory Separate Estate Distinguished 266 250. When Separate Estate Cognizable in Courts of Law 266 251. Effect of Renunciation by Wife 267 252. Effect of Fraud, Insolvency or Bankruptcy 267 253. When Separate Estate May Be Ambulatory 267 264. Creation in General 269 255. By Parol Gift 270 256. By Contract 271 267. By Instrument Vesting' Power of Appointment in Wife 271 258. Gift of Income of Fund as Gift of Capital 272 259. Savings from Wife's Income 273 TABLE OF CONTENTS IN VOL. I. xiii Page 260. Necessity of Trustee 274 261. Construction of Instrument Creating Estate 275 262. What Words are Sufficient to Create Estate; In England 277 263. In the United States 27a 264. What Words are Insufficient to Create Estate; In England 280 265. In the United States 281 266. Necessity of Preserving Identity of Estate 282 267. Separate Estate as Trust Fvind for Payment of Wife's Debts 283 268. Duration of Estate 284 269. Husband's Rights on Wife's Decease 284 270. What Will Bar Husband's Rights 286 271. Effect of Estate on Husband's Marital Obligations 286 272. Rights of Bona Fide Purchasers from Husband 287 273. Restraint on Anticipation or Alienation 287 274. Wife's Power to Dispose of or Charge Separate E8ta4» in Gen- eral ; In England 292 275. In the United States 293 276. Necessity of Concurrence of Trustees 295 277. Form and Requisites of Deed 296 278. Of Real Estate 296 279. Of Income or Profits 296 280. Contracts Relating to Separate Estate in General 297 281. Contracts Not Beneficial to Wife 300 282. Mortgage or Pledge to Secure Husband's Debts 301 283. Gifts and Transfers to Husband 302 284. Enforcement 303 885. Estoppel to Claim Property 305 CHAPTER XVI. IfABBIED women's ACTS. 286. Tendency and Purpose in General 307 287. History of American Msu-ried Women's Acts .' 310 388. New York and Pennsylvania Married Women's Acts of 1848 313 28a English Married Women's Act of 1870 314 290. Scope and Validity 315 291. Construction 317 292. What Law Governs in General 317 29a As to Rights of Husband 318 294. As to Rights of Wife 320 206. Changes Made by Married Women's Acts in General 321 CHAPTER XVII. WIFK AS BOLE TBADEB, PARTNER AND STOCKHOLDER. 296. As Sole Trader; Early English Doctrine 323 297. By Custom of London 324 298. Under Civil Law Codes 325 299. View That Wife Cannot be Separate Trader at Common Law. . . 326 300. Under Antenuptial Agreement 326 301. American Equity Doctrine 327 302. Necessity of Proceedings to Ena/ble Wife to Become Sole Trader. 32'9 303. Necessity of Assent of Husband 330 304. English Statutory Rule 331 305. Under American Married Women's Acts in General 332 306. Massachusetts and Pennsylvania Statutory Rule 833 307. What Constitutes Sole Trading 334- 308. Validity of Wife's Trading Contracts in General 334 309. Effect of ISstoppel 335 310. Effect of Bankruptcy of Wife 335 XIV TABLE OF COlTTEIirTS IN VOL. I, Page § 311. Liability of Husband 336 312. Effect of Participation of Husband as Agent 337 313. Rights of Husband's Creditors 338 314. As Copartner; Generally 339 315. With Husband 340 316. With Third Persons 341 317. As Stockholder 342 318. Actions 342 CHAPTER XVIII. WHAT CONSTITUTES WIFE'S STATUTORY SEPARATE ESTATE. § 319. Creation of Separate Estate in General 344 320. By Written Instrument 345 321. By Parol Transfer 34S 322. Necessity of Schedule 345 323. What Constitutes Separate Estate; Property Acquired Prior to Coverture 346 324. Property Acquired by Gift, Grant, Devise or Bequest During Coverture 347 326i. Wife's Land in General 349 326. Rents, Profits and Issues of Separate Estate 351 327. Proceeds of Sale of Separate Estate 352 328. Property Purchased at Judicial Sale 352 329. Property Held by Husband as Trustee for Wife 363 330. Personal Property in General 354 331. Alimony Granted to Wife 356 332. Damages Recovered by Wife 355 333. Proceeds of Insurance Policy on Life or Property of Husband . . . 356 334. Goods Bought by Husband on Wife's Credit 357 335'. Trust Fund in Bastardy Proceedings 358 336. Wife's Earnings in General 358 337. Principles Applicable 369 338. In Separate Business 360 339. In Keeping Boarders 361 340. Property Purchased with Earnings 361 341. Effect of Waiver of Marital Rights by Husband 362 342. Effect of Husband's Desertion 363 343. Actions to Recover Earnings 363 344. Presumptions; As Between Spouses in General 364 345. As to Property Standing in Name of Husband 366 346. As to Property Standing in the Name of Third Persons 367 347. As Augainst Husband's Creditors 36i8 348. Statutory Presumptions 36i9 349. Burden of Proof as Against Creditors of Husband 370 350. Question for Jury as Against Creditors of Husband 370 351. Effect of Estoppel in General 371 352. To Claim Property as Separate Estate in General 372 353. By Deed 373 354. By Record 375 355. By Fraudulent Representations 376 356. By Silence 376 357. By Failure to Assert Her Title 3l77 358. By Clothing Husband with Apparent Title or Authority 378 CHAPTER XIX. husband's powers, RIGHTS AND LIABILITIES AS TO WIFE'S STATUTORY SEPARATE ESTATE. § 359. Powers, Statutory Limitation of Husband's Right to Reduce Wife's Property to Posses.sion 381 360. Statutory Power to Control Separate Estate 382 TABLE OF CONTENTS IN VOL. 1. XT »61. Effect of Fraud of Husband Ifs 362. To Dispose of Real Estate 384 363. Of Personal Property 384 364. To Bind Separate Estate by Mortgage 385 365. By Lease _ ' ggg, 366. With Liability for His Sole Fraud 386 367. By Contract 386 368. By Lien 387 369. By Release 387 370. Rights of Purchasers from Husband 388 371. Notice to Hufiband as Notice to Wife 389 372. Rights of Husband's Creditors ; In General '. 390 373. As to Value of Husband's Services 392 374. Effect of Husband's Possession of Separate Estate 394 375. Transactions in Fraud of Creditors 395 376. As Wife's Agent in General 395 377. Scope of Agency in General 396 378. Scope of General Agency 397 379. Implied Authority as Agent 398 380. Power to Bind Wife by Declarations 399 381. Evidence of Agency in General 3&9 382. Burden of Proof 400 383. Presumptions 401 384. Admissibility of Evidence 402 386. Estopipcl to Deny Agency 403 380. Ratification! in General 404 387. What Constitutes Ratification 406 388. Rights to Recover for Improvements ' 406 389. To Recover for Services 407 390. To Recover for Advances 408 391. Liabilities; For Wife's Money Used for Necessaries 408 392. For Wife's Property Received 409 393. To Third Person 411 CHAPTER XX. VAIIDITT OF wife's CONTRACTS EELATINO TO STATUTOET SEPAEATE ESTATE. § 394. Power to Contract — Under Statutes Limiting Wife's Power to Contract 413 395. Effect of Statute of Frauds 414 396. By Agent 414 397. Necessity of Joinder or Assent of Husband 415 398. Release 415 399. In Judicial Proceedings 415 400. Jointly with Husband 415 401. For the Purchase of Property in General 416 4i02. On Credit 416 403. For Improvements and Repairs 417 404. Submission to Arbitration 419 405. Promissory Notes 419 406. Jointly with Husband 420 407. Consideration 420 408. For Insurance 421 409. As Stockholder in Corporation or Joint Stock Comipany 421 410. LoanfS and Advances 422 411. Leases 422 412. To Secure Husband's Debts 422 413. Suretyship in General 423 414. For Third Persons 425 415. What Constitutes Contract of Suretysihip' in General 425 416. Illustrations 425 417. Rights of Wife as Surety 427 XVl TABLE OF CONTENTS IN VOL. L 418. Enforcement 428 419. Katifioation 428 420. AvoidMice 428 CHAPTER XXI. WIE^S POWEB TO CHABOE 8TATDT0BT SEPABATE ESTATE VfTTK T.TABTT.WT FOB DEBT. i 421. Power to Charge in General 431 422. What Constitutes Charge 432 423. Limitation of Power to Charge 433 424. What Contracts Are For Benefit of Separate Estate 433 425. What Contracts Are Not For Benefit of Separate Estate 484 426. Property Subject to Liability 435 427. Extent of Liability for Joint Debt 436 428. Necessity of Intention to Charge 436 429. Evidence of Intention to Charge 436 430. Necessity of Joinder or Assent of Husband 437 431. Effect of Separation or Abandonmenit 438 432. By Contract in General 43« 433. Evidence of Debt in General 439 434. Necessity of Express Contract 43^ 435. By Mortgage 43» 436. By Equitable Mortgage 440 437. By Assumption of Existing Mortgage 442 438. By Deficiency Decree 442 439. By Confession of Judgment 442 440. By Vendor's Lien 443 441. By Mechanic's Lien 443 442. Jointly with Husband 443 443. For Purchase of Land 444 443a. For Im/pTovements and Materials 444 444. For Services Rendered 445 445. For Debt of Husband 446 446. Statutory Liability for Support of Husband 448 447. Liability for Breaches of Trust 449 448. Debts Contracted in Separate Business 449 449. By Contract of Guaranty or Suretyship 450 450. Rule of Yale v. Dederer 451 451. Loans 455 452. By Promissory Note 456 453. Proceedings to Charge Separate Estate; In Equity 457 454. At Law 458 455. Ratification. 460 456. Estoppel to Deny Validity 460 457. Avoidance 462 CHAPTER XXn. OONyEYANCE, MOBTOAGE OB LEASE OP STATUTOBT SEPABATE ESTATK. 458. Wife's Power to Dispose of Separate Estate in General 464 459. What Law Governs 405 460. Consideration 455 461. Form and Requisites in General 46^ 462. Execution by Wife 457 463. Necessity of Husband's Joinder 467 464. Effect of Abandonment, Separation, Divorce, or Insanity of Hus- band 470 465. Wihen Husband's Joinder Not Required 47O 466. Presumption as to Husband's Assent 47j 467. Evidence of Assent 47 j TABLE OF CONTENTS IN VOL. I. XVil Page i 468. Acknowledgment 472 W9. Delivery in Escrow . . . 473 470. Record \ 473 471. Conveyance ,', 474 472. Mortgage or Deed of Trust '. 474 473. Declaration of Trust 476 474. Gift ; . . . . 476 475. Lease 476 476. By Equitable Assignment 477 477. Dedication to Public Use 478 478. Parol Transfers 478 479. By Power of Attorney 478 480. Construction and Operation 478 481. Liability on Covenants in Conveyance 480 482. Extent of Lien or Liability 480 483. Effect of Extension of Time on Novation 481 484. Conveyances in Fraud of Creditors 482 485. Eights and Liabilities of Purchasers 482 486. Laches 483 487. Estoppel to Deny Validity 483 488. Ratification 486 489. Avoidance 487 CHAPTER XXIII. ANTENUPTIAL SETTLEMENTS. § 490. What Law Governs 490 491. Marriage Settlements favored by Public Policy 491 492. General Considerations 491 493. Promises to Marry, and Promises in Consideration of Marriage. 492 494. Form and Requisites 493 495. Necessity of Trustee 495 496. Reformation 496 497. Consideration 498 498. Validity in General 600 499. Oral Promise to Make Settlement 501 500. Postnuptial Settlements in Execution of Antenuptial Agreement. 502 501. Contracts Releasing Rights in Estate of Other Spouse 504 502. Marriage Articles 505 503. Settlement by Third Person 507 504. Covenant to Settle After- Acquired Property 508 505. Provisions for Children or Heirs 509 506. Secret Settlement on Third Person in Fraud of Husband 610 507. Construction 613 508. Power of Disposition of Property Settled 515 509. Operation and Effect 615 610. Enforcement 517 511. Rescission or Avoidance; In General 519 512. By Agreement 620 513. Fraud 621 514. Failure to Perform Conditions 521 515. Infancy or Laches 522 516. Misconduct of Spouse 622 617. Acts in Pais 623 618. Inadequacy of Provision for Wife 524 519. Rights of Creditors 626 CHAPTER XXIV. POSTNTTPTIAI, SETTLEMENTS. § 520. General Oons^iderations 629 521. Anter.ttptial SettlOTionts Distinguished 529 522. Necessity of Tnistee 530 XVlll TABLE OF CONTENTS IN VOL. I. Page § 523. Validity and Requisites in General 530 524. Consideration 532 525. Property Subject to Claims of Creditors 532 526. Construction 532 527. Settlements in Fraud of Creditors; Statutes of Elizabeth, 533 528. Effect of Bankruptcy Acts 533 539. As Against Subsequent Creditors •. 5S4 530. Effect of Payment of Valuable Consideration by Spouse 535 531. Effect of Intent of Settler 538 532. Bights of Bona Fide Purchasers; English Doctrine 539 533. American Doctrine 540 5>34. Bescission and Avoidance 542 CHAPTER XXV. CONTBACTS BETWEEN SPOUSES. § 535. What Law Governs S44 536. Contracts and Debts Existing at the Time of Marriage 545 537. Under Married Women's Acts 546 538. Contracts as to Wife's tatutory Separate Estate 548 539. Validity in General 549 540. Consideration 550 541. Bills and Notes 551 542. Loans and Advances 552 543. Contracts for Services 564 544. Liability to Pay Interest 555 545. Spouses as Partners 555 546. Releases Between Spouses 556 CHAPTER XXVI. GIFTS BETWEEN SPOUSES. S 547. What Constitutes Gift 557 548. Intervention of Trustee or Third Person 560 549. Property Which May Be Subject of Gift; Generally 560 550. Bank Deposits 561 551. Necessity of Intention to Make Gift 563 552. Necessity and Nature of Delivery 564 553. Gift by Wife to Husband 566 564. Presumptions; Husband's Gift to Wife 566 555. Wife's Gift to Husband in General 568 556. Validity in General 571 557. Operation and Effect 572 558. Rescission or Avoidance 573 659. Gifts in Fraud of Creditors 575 CHAPTER XXVII. COITVETANCES AND MOBTGAGES BETWEEN SPOUSES. § 560. Conveyances and Leases j 677 561. Mortgages 682 562. Operation and Effect 682 663. Transfers of Personalty 683 CHAPTER XXVIII. CONVEYANCES TO SPOUSES. § 564. Estate by the Entirety in Lands 585 565. Estate by the Entirety in Personalty 588 566. Essentials of Estate by the Entirety 589, TABLE OF CONTENTS IN VOL. I. xix Page 567. Possesaion as Between Spouses 869 568. Effect of Partition and Divorce 590i 5«9. Effect of Statutes .'.'..'.'.'.'!.'!!!.' 690 570. Spouses as Tenants in Common 592 571. Rouses as Joint Tenants 594 572. Rights of Creditors 594 573. Conveyance or Mortgage 696 574. Rule in Equity as to Gift or Conveyance to Spouses; In General. 697 575. Resulting Trust 598 576. Effect of Purchase at Judicial Sale 699 577. As to Insurance on Husband's Life in Favor of Wife 599 578. Equitable Relief 60O CHAPTER XXIX. COMMUNITY DOCTBINE. 579. Nature and History of Doctrine 603 580. The European Doctrine of Community 603 581. Effect of Doctrine on American Jurisprudence 604 582. Nature of Comimunity 605 583. What Law Governs 606 584. What Constitutes Commiunity Property in General 608 585. Property Acquired During Coverture 608 586. Public Lands Acquired by Grant or Entry 612 587. Rents, Profits and Issues of Separate Estates 614 588. Improvements on Separate Estates '. 615 689. Damages Recovered by Spouses 615 690. Wife's Earnings 616 591. Property in Part Community Property and in Part Separate Estate 616 692, Separate Estate Distinguished 617 593. Gifts 620 594. Insurance Policies 620 595. Determination of Status of Property; Presumptions 621 596. Evidence and Burden of Proof 623 597. Change of Status of Property by Agreement 625 598. Nature of Wife's Interest 627 699. Wife's Paraphernal and Dotal Property 627 600. Control and Disposition 629 eOl. Sales, Mortgages and Conveyances; By Husband 630 602. By Wife 632 603. Lease 633 604. Rights and Liabilities of Purchasers During Coverture 634 605. Contracts, Conveyances and Gifts Between Spouses 635 606. Actions; By Spouses 635 607. Against Spouses 637 608. Liabilities dhargeable on Community Property; Comimunity Debts Generally 638 609. Obligations as Sur&ty 640 610. Bills and Notes 640 611. Torts 641 612. Separate Debts 641 613. Rights and Remedies of Creditors During Existence of Com- munity • • • • 642 614. Dissolution of Commiinity; Effect of Abandonment, Separation, Insanity or Divorce 642 615. Rights and Liabilities of Survivor 644 616. Rights of Heirs 647 617. Effect of Remarriage of Survivor 649 618. Accounting or Settlement of Community Rights 651 eifl^. Necessity of Acceptance or Renunciation 652 620. Sale or Mortgage to Pay Debts 653 621. Rights and Liabilities of Purchasers Under Sale to Pay Debts. . . 655 XX TABLE OF CONTENTS IN VOL. I. § 622. Actions by or Against Survivor 666 623. Actions by or Against Heirs 667 624. Administration in General 668 626. Control, Management, and Collection of Comm;unity Assets 660 626. Accounting and Settlement 661 CHAPTER XXX. ACTIONS § 627. Actions Between Spouses at Law 664 628. In Equity 664 629. Effect of Statute of Limitations 667 630. Effect of Divorce or Abandonment 667 631. Under Married Women's Acts in General 667 632. Implied Statutory Power to Maintain Action . . . ^ 668 633. Torts in General 669 634. Assault by Husband on Wife 671 635. Ejectment 672 636. Replevin 672 637. Negligence 673 638. Contract 673 639. Partition 674 6^0. Amounts Expended for Necessaries 674 641. Confession of Judgment 674 642. Trover 674 643. Actions by Wife Against Third Persons 675 644. In Equity 676 645. Under Married Women's Acts 677 646. Necessity of Joining Husband as Party -at-Law 679 647. In Equity .' 680 648. Necessity of Guardian ad Litem or Next Friend 681 649. Effect of Husband's Refusal to Join 681 650. Effect of Separation 682 651. Compromise of Claim 682 652. Contract 682 653. Confession of Judgment 683 654. Submission to Arbitration 684 655'. In Tort; In General 684 656. Under Married Women's Acts 684 657. Trespass 685 658. Professional Negligence 686 659. Assault and Battery 685 660. Ejectment and Forcible Detainer 636 661. Replevin ©96 662. Personal Injuries to Wife 686 663. Fraud and Deceit 688 664. Libel or Slander 688 665. Malicious Prosecution 689 666. Injury to Wife's Personal Property 689 667. Trover 690 668. For Loss of Husband's Consortium and Services 691 669. For Death of Husband 692 670. Pleading 692 671. Defences to Action by Wife 692 672. Damages 693 673'. Abatement and Survival of Action 695 674. Husband's Rights 696 675. For Mental Anguish Suffered by Wife 696 676. Seduction of Wife 69.6 677. For Loss of Consortium and Medical Expenses 697 678. For Loss of Services 704 679. For Death of Wife 704 680. Necessity of Joinder of Wife 705 TABLE OF CONTENTS IN VOL. I. xxi •81. Actions Against Wife in General TOa 862. Under Married Women's Acts vaa •83. Trover '.'.'.'.'.'.'.'.'.'.'.'.'.\'.'.'." 70« •84. Actions Against Wife 707 PAKT III. PAEENT AND CHILD. CHAPTER I. THE BELATIGN IN GENEBAI.. 8 685. Definitions 709 68erson who was their patriarch or chief. But as they increased, they likewise divided; their interests hecame conflicting, and hostilities arose. Hence, when men came afterwards to unite for their common defence, they composed a national body, and agreed to be governed by the will of him or those on whom they had conferred authority. Thus did government originate. And government, for its legitimate purposes, placed restrictions upon the governed; which restrictions thenceforth were to apply to individuals in both their family and social relations.'' But the law of the domestic relations is nevertheless older than that of civil society. In fact, nations themselves are often regarded as so many families; and the very name which is placed at the head of this work, the legislator constantly applies to the public concerns of his own country as contrasted with those of foreign governments. The supremacy of the law of family should not be forgotten. We come under the dominion of this law at the very moment of birth ; we thus continue for a certain period, whether we will or no. Long after infancy has ceased, the general obligations of parent and child may continue ; for these last through life. Again, we subject ourselves by marriage to a law of family; this time to find our responsibilities still further enlarged. And although the voluntary act of two parties brings them within the law, they can- not voluntarily retreat when so minded. To an unusual extent, therefore, is the law of family above, and independent of, the individual. Society provides the home; public policy fashions the system ; and it remains for each one of us to accustom himself to rules which are, and must be, arbitrary. So is the law of family universal in its adaptation. It deals directly with the individual. Its provisions are for man and woman ; not for corporations or business firms. The ties of wife and child are for all classes and conditions ; neither rank, wealth, nor social influence weighs heavily in the scales. To every one public law assigns a home or domicile; and this domicile deter- mines not only the status, capacities, and rights of the person, but also his title to personal property. There is the political domicile, which limits the exercise of political rights. There is the forensic 2. See Burlamaqui, Nat. Law, ch.iv, §§ 6, 9. 5 INTEODUCTION. § 4 domicile, ' upon whidi is founded the jurisdiction of the courts. There is the civil domicile, which is acquired by residence and con- tinuance in a certain place. The place of birth determines the domicile in the first instance; and one continues until another is properly chosen. The domicile of the wife follows that of the husband ; the domicile of the infant may be changed by the parent. Thus does the law of domicile conform to the law of nature. § 4. Law of Husband and Wife now in a Transition State; Various Property Schemes Stated. The most interesting and important of the domestic relations is that of husband and wife. The law of England and the United States, on this topic, has undergone a remarkable change, which is reflected in this work. The old common-law theory of marriage, that of unity of person and property in the husiband, is so repugnant to modern ideas that it has been almost entirely swept away, but a clear idea of the com- mon-law system is necessary for an understanding of modern statutes and decisions. There was in this country and England, during the latter part of the nineteenth century, a remarkable movement for giving the wife equal rights in all respects with the husband, which has been so far successful that it can almost be said now that the modem wife has a legal right which, fortunately for all of us, she does not exercise, to leave home in the morning and go to work, collect and keep her own wages and leave her husband to do the housework and take care of the babies. The modem idea is that the husband and wife are quasi-partners in the business of rearing a family, that her work in bearing and caring for children should be considered as much as is his labor as a wage-earner. The statutes and decisions which reflect this great reform show clearly that the influence of the feudal system, which regarded only the rights of the man who could carry arms, has almost disappeared. The only vestige of the rights of the husband is the right still allowed him of choosing the family domicile, but even this last remnant of his autocratic power is only begrudingly bestowed, as he must now, forsooth, exercise reason in his choice or the wife is not bound to abide by his decision. The relations of husband and wife in this country have been governed by three separate systems, the common-law scheme, the civil-law scheme, and the community scheme. Let us examine these various schemes separately. § 6 INTEODUCTION. 6 § 5. Common-Law Property Scheme. (1) The commoii-law scheme makes unity in the marriage rela- tion its cardinal point. But to secure this unity the law starts with the assumption that the wife's legal existence becomes sus- pended or extinguished during the marriage state; it sacrifices her property interests, and places her almost absolutely within her husband's keeping, so far as her civil rights are concerned. Her fortunes pass by marriage into her husband's hands, for temporary or permanent enjoyment, as the case may be; she cannot earn for herself, nor, in general, contract, sue, or be sued in her own right ; and this, because she is not, in legal contemplation, a person. The husband loses little or nothing of his own independence by mar- riage; but in order to distribute the matrimonial burdens with some approach to equality, the law compels him to pay debts on his wife's account, which he never in fact contracted, not only where she is held to be his agent by legal implication, but whenever it happens that she has brought him by marriage outstanding debts without the corresponding means of paying them. Husband and wife take certain interests in one another's lands, such as curtesy and dower, which become consummate upon survivorship. In general, their property rights are summarily adjusted by the law with reference rather to precision than principle. On the whole, however, the advantages are with the husband ; and he is permitted to lord it over the wife with a somewhat despotic sway ; as the old title of this subject — haron and feme — plainly indicates. The witty observation is not wholly inappropriate, that, in the eye of the common law, husband and wife are one person, and that one is the husiband.* § 6. Civil-Law Property Scheme. (2) The civil-law scheme pays little regard to the theoretic unity of a married pair. It looks rather to the personal independ- ence of both husiband and wife. Each is to be protected in the enjoyment of property rights. In the most polished ages of Eoman jurisprudence we find, therefore, that husband and wife were regarded as distinct persons, with separate rights, and capable of holding distinct and separate estates. The wife was comparatively free from all civil disabilities. She was alone responsible for her own debts; she was competent to sue and be sued on her own 3. See post, Part II, aa to coverture doctrine. 7 INTBODUCTION. § 6 contracts; nor could the husband subject her or her property to any liability for his debts or engagements." The more minute details of the common-law scheme of husband and wife belong to the main portion of this volume, and need not here be anticipated. Not so, however, with the civil-law scheme ; and we proceed to elaborate it somewhat further. In the earlier period of Roman law the marital power of the husband was as absolute as the patria.potestas. But before the time of the Emperor Justinian it had assumed the aspect already noticed ; in which it is to be distinguished from all other codes. The communio honorum, which is to be found in so many modem systems of juris- prudence whose basis is the Roman law, treats the wife's separate property and separate rights as exceptional. The peculiarities of the civil law in this respect may, perhaps, be referred to the disuse into which formal rites of marriage had fallen. Formal marriage gave to husband and wife a community of interest in each other's property. But marriage per usum, or by cohabitation as man and wife, which became universally prevalent in later times, did not alter the status of the female; she still remained subject to her father's power. Hence parties united in a marriage per usum acquired no general interest in one another's property, but only an incidental interest in certain parts of it. The wife brought her dos; the husband his antirdos; in all other property each retained the rights of owners unaffected by their relation of husband and wife. The dos and anti-dos were somewhat in the nature of mutual gifts in consideration of marriage. Every species of property which might be subsequently acquired, as well as that owned at the time of marriage, could be the subject of dotal gift. The father, or other paternal ancestor of the bride, was bound to furnish the dos, and the husband could compel them afterwards, if they failed to do so; the amount or value being regulated according to the means of the ancestor and the dignity of the husband. This pecu- niary consideration appears to have influenced the later marriages to a very considerable extent. And while the husband had no con- cern with the wife's extra-dotal property, — since this she could manage and alienate free from all control or interference, — over her dotal property he acquired a dominion which was determinable on the dissolution of the marriage, unless he had become the pur- 4. 1 Burge, Col. & For. Laws, 202, 263. § 7 INTEODUCTION. 8 chaser at an estimated value. As incidental to this dominion he had the usufruct to himself, he might sue his wife or any one else who obstructed his free enjoyment, and he could alienate the per- sonal property at pleasure. But he could not charge the real estate unless a purchaser; and upon his death the wife's dotal property belonged to her, or, if she had not been emancipated, to her father ; and to secure its restitution after the dissolution of marriage, the wife had a tacit lien upon her husband's property. Of the anti-dos, or donatio propter nupUas, not so much is known ; but this appears to have generally corresponded with the dos; it was restored by the wife upon the dissolution of marriage, and was regarded as her usufructuary property in like manner. It was not necessarily of the same value or amount with the wife's dos. Over his general property the husband retained the sole and absolute power of alienation, and his wife had no interest in it, nor could she interfere with his right of management.* But the civil law allowed agreements to be made by which these rights might be regulated and varied at pleasure. And by their stipulations the married parties might so enlarge their respective interests as to provide for rights to the survivor.' These agree- ments were not unlike the antenuptial settlements so well known to our modem equity courts, which we shall consider in due course hereafter. § 7. Community Property Scheme. (3) The communio honorum, or eommunity system, relates to marital property, in which respect it occupies an intermediate position between the civil and common-law schemes. The com- munio bonorum may have been part of the Roman law at an earlier period of its history, but it had ceased to exist long before the com- pilation of the Digest; though parties might by their nuptial agreement adopt it.' This constitutes so prominent a feature of the codes of France, Spain, and other countries of modern Europe, whence it has likewise found its way to Louisiana, Florida, Texas, California, and other adjacent States, once subject to French and Spanish dominion, and erected, in fact, out of territory acquired during the present century upon the Mississippi, the Gulf of Mexico, and the Pacific Ocean, that it deserves a brief notice. 5. 1 Burge, Col. & For. Laws, 203 ; 7. 1 Bulge, Col. & For. Laws, 202 ; lb. 263 et seq. lb. 263 et seq. «. 1 Burge, Col. & Far. Laws, 273. 9 INTEODtfCTION. § 7 The relation of husband and -wife is regarded by these codes as a species of partnership, the property of which, like that of any other partnership, is primarily liable for the payment of debts. This partnership or community applies to all property acquired during marriage; and it is the well-settled rule that the debts of the partnership have priority, of claim to satisfaction out of the community estate. Sometimes the community is universal, com- prising not only property acquired during coverture, but all which belonged to the husband and wife before or at their marriage.* It is evident, therefore, that the provisions of such codes may differ widely in different States or countries. The principle which distinguishes the community from both the civil and common-law schemes is, however, clear; namely, that husband and wife should have no property apart from one another. Under modem European codes this law of community embraces profits, income, earnings, and all property which^ from its nature and the interest of the ovmer, is the subject of his uncontrolled and absolute alienation; but certain gifts made between husband and wife in contemplation of marriage are of course properly excluded.' Whether antenuptial debts are to be paid from the common prop- erty, as well as debts contracted while the relation of husband and wife continues, would seem to depend upon the extent of the com- munio honorum, as including property brought by each as capital stock to the marriage, or only such property as they acquire after- wards.^" The codes of modem Europe recognize no general capac- ity of the wife to contract, sue, and be sued, as at the later civil law. On the contrary, the husband becomes, by his marriage, the curator of his wife. He has, therefore, the sole administration and man- agement of her property, and that of the community; and she is entirely excluded in every case in which her acts cannot be referred to an authority, express or implied, from her husband.^^ Hence, too, all debts and charges are incurred by the husband. The com- munity ceases on the termination of marriage by mutual separation or the death of either spouse.^^ And the various codes provide for the rights of the survivor on the legal dissolution of the community by death. 8. 1 Burge, Col. & For. Laws, 277 both real and personal estate. Child- gf ggq_ ress v. Cutter, 16 Mo. 34. 9. 1 Burge, Col. & For. Laws, 381, 10. 1 Burge, 294, 283. By the French law only the per- 11. lb. 296, 301. sonal estate entered into the commu- 12. lb. 303, 805. nity; but the Spanish law included § 7 INTEODUCTION, 10 The reader may readily trace tlie influence of the commianity system upon th© jurisprudence of Louisiana and the other States to which we have referred, whose annexation was subsequent to the adoption of our Federal Constitution, by examining their judicial reports. The Civil Code of Louisiana, as amended and promul- gated in 1824, pronounced that the partnership or community of acquets or gains arising during coverture should exist in every marriage where there was no stipulation to the contrary. This was a legal consequence of marriage under the Spanish law.^* The statutes of Texas, Florida, Missouri, California, and other neigh- boring States, are characterized by similar features. But all of these laws have been modified by settlers bringing with them the principles of the common law. So, too, th© doctrines of separate estate, revived in modern jurisprudence, are introduced into the legislation of these as other American States.^* The American commimity doctrine, as we may term it, is that all property pur- chased or acquired during marriage, by or in the name of either husband or wife, or both, including th© produce of reciprical in- dustry and labor, shall be deemed to belong prima facie to the community, and be held liable for the community miarriage debts accordingly.^' But it will be perceived that, in our American codes, conomunity, as an incident to marriage property, is only a presump- tion, which may be overcome in any instance by proof that the prop- erty was acquired as the separate estate of either the husband or wife. This community rule, moreover, as it is evident, does not ap- ply to the property which either husband or wife brought into the marriage ; such property, by the codes, being distinctly kept to each 13. Art. 3313, 3369, 3370; 3 Kent, Cal. 428'; Eslinger v. Eslinger, 47 Com. 183, n. Cal. 62. The wife's earnings, unless 14. Texas Digest, Paschal, "Marl- given her by the husband, and likewise tal Rights;" Cal. Civil Code, "Hus- property bought with such earnings, band and Wife ; ' ' Parker 's Cal. Dig., must belong to the community. John- " Husband and Wife;" Walker v. son v. Burford, 39 Tex. 343; Ford v. Howard, 34 Tex. 478 ; Caulk V. Picou, Brooks, 35 La. Ann. 157. But see 33 La. Ann. 377. And see Forbes v. Fisk v. Flores, 43 Tex. 340. The hus- Moore, 33 Tex. 195. band, as head and master of the com- 15. Louisiana Civil Code, §§ 33fi9'- munity, has the right to dispose of its 2372; Succession of Planchet, 39 La. movable effects. Cotton v. Cotton, 34 Ann. 530; Tally v. HefEner, 29 La. La. Ann. 858. The community doc- Ann. S'SS. Land owned by a spouse trine is more fully discussed, post, at the time of marriage does not fall ch. XXIX. into the community. Lake v. Lake, 52' 11 INTEODUCTION. § 8 spouse apart as his or her separate property.^" And, besides, it is now usually provided by legislation that property acquired during marriage, " by gift, bequest, devise, or descent," with the rents, is- sues and profits thereof, shall be separate, not common property. The tendency, then, in our States where the law of community still exists — though all have not proceeded in legislation to the same length — is to limit rather than extend its application. The wife has a tacit mortgage for her separate property, so far as the law may have placed it in her husband's control ; also upon the com- munity property from the time it went into his hands ; and, more- over, she may, on surviving her husband, renounce the partnership or community, in which case she takes back all her effects, whether dotal, extra-dotal, hereditary, or proper." On the whole, there is in the doctrine of community much that is fair and reasonable ; but in the practical workings of this system it is foirnd rather complicated and perplexing, and hence unsatis- factory; while in no part of the United States can it be said to exist at this day in full force, since husband and wife are left pretty free to contract for the separate enjoyment of property, and so exclude the legal presumption of community altogether ; ^* and, moreover, the constant tendency of our Southwestern States is to remodel their institutions upon the Anglo-American basis, common to the original States and those of the Ohio valley. § 8. The Recent Married Women's Acts. What are familiarly known as the " married women's acts," the product for the most part of our American legislation since 1848, and more recently engrafted upon the code of Great Britain, aim 16. La. Code, §§ 2316, 2369, 2371 Pinard's Succession, 30 La. Aim. 167 McAfee v. Eobertson, 43 Tex. 591 Hanriek v. Patrick, 119 U. S. 156 with reference to the husband's lia- bility for her paraphernal property, ia discussed by Mr. Justice Gray in Pleitas V. Richardson, 147 TJ. S. 550. Myrick's Prob. 93; Sehmeltzv.Garey, 18. See Packard v. Arellanes, 17 49 Tex. 49. But the wife should not Qg^j^ 535. -^^^j ^_ Kirkman, 25 Misa. mingle her separate funds with those g^g. guggession of McLean, 12 La. of the community in making a pur- ^^^_ g^^. j^^^^ ^_ j^^^^^ ^^ ^^^_ chase, as of her separate estate. Beid ^^3. ^^ ^^^^^ Melboum, L. E. 6 Oh. V. Eochereau, 2 Woods, 151. See ^^_ ^^_ ^^^ ^^^^^ ^^ 2369-2405; 1 post, § 579 et seq. ^ ^^^_ ^ ^^^ ^^ 17. And see post, § 579 et seq, as to & ' ' . the wife's separate property under where the law of community as it was these codes; viz., dotal and extra-dotal about half a century ago is fully set or paraphernal. The status of a mar- forth ; and the learned note to 2 Kent, lied woman under the Louisiana Code, Com. 183. § 9 INTEODUCTIOIf. 12 to secure to the wife the independent control of her own property, and the right to contract, sue, and be sued, without lier husljand, under reasonable limitations. These acts, therefore, substitute in a great measure the civil for the common law. It may be laid down that the common law, in denying to the wife the rights of ownership in property acquired by gift, purchase, bequest, or other- wise, did her injustice, and that a radical change became neces- sary ; and this is shown, not only in the legislation of our States, but by the fact that the equity tribunals gradually moulded the unwritten law of England so as to secure like results. All this separate property legislation, as well as the equity doctrines pertaining to the subject in England and the several United States, will be duly set forth in these pages hereafter." And the modification of the respective property rights of a married pair by marriage contracts or settlements will also be considered."" § 9. Marriage and Marital Influence. In the connubial joys to which every age and nation bear witness, the vast majority of this globe's inhabitants must have participated from one era to another, with a certain voluntary adjustment of the reciprocal burdens, such as relieved both husband and wife of a sense of bondage to one another. And thus have the inequalities, the hardships of marriage codes, proved less in practice than in literal expression. For whatever the apparent severity of the law, human nature or love's divine instinct works in one uniform direc- tion, — namely, towards uniting the souls once brought into the arcana of married life in an equally honorable companionship. Woman's weakness has been her strongest weapon ; where her influ- ence could not overflow, it permeated'; and if her life has been, legally speaking, at her husband's mercy, her constant study to please has kept him generally merciful. She has not been superior to her race and epoch, but on the whole as well protected, as well advanced, in her day, as those of the other sex. Except for this, the wife's lot must have been miserable indeed, even under the most civilized institutions ever established. Codes and the experi- ence of nations in this respect show strange inconsistencies : laws at one time degrading to woman, and yet marital happiness ; laws 19. See coverture doctrine, modified 20. Marriage Settlements, post, eh. by equity and modem statutes, ch. XXIII. X, et seq. post. 13 INTEODUCTIOlSr, § 10 at another elevating her independence to the utmost, and yet marital infelicities, lust, and bestiality.^^ § 10. General Conclusions as to the Law of Husband and Wife. The conclusions to which this writer's investigation upon the general subject of husband and wife conducts him, are these. Marriage is a relation divinely instituted for the mutual comfort, well-being, and happiness of both man and woman, for the proper nurture and maintenance of offspring, and for the education in turn of the whole human race. Its application to society being universal, the fundamental rights and duties involved in this rela- tion are recognized by something akin to instinct, and often desig- nated by that name, so as to require by no means an intellectual insight; intellect, in fact, impairing often that devotedness of affection which is the essential ingredient and charm of the relation. Indeed, the rudest savages understand how to bear and bring up healthy offspring. Legal and political systems are accretions based upon marriage and property; but in the family rather than indi- vidualism we find the incentive to accumulation, and in the home the primary school of the virtues, private and public. At the same time marriage affords necessarily a discipline to both sexes ; sexual indulgence is mutually permitted under healthy restraints; woman's condition becomes necessarily one of comparative su/bjec- tion ; man is tamed by her gentleness and the helplessness of tender offspring, and for their sake he puts a check upon his baser appe- tites, and concentrates his affection upon the home he has founded. Such is the conjugal union in what we may term a state of nature. And now, while man frames the laws of that union, as he always does in primitive society, he regards himself as the rightful head 21. "Whether, in setting at naught into utter dissolution woman possessed that identity of interests which is es- a large share of cultivation and per- sential to domestic happiness, the sonal freedom; yet she had touched later Boman scheme was fatally de- the lowest depths of social degrada- feetive, or the conjugal decay which tion. ensued was due to causes more latent, This degradation it became the mis- need not here be discussed. Certain sion of the Christian Church to eor- it is, however, that widespread in- rect during the lapse of the dark ages cestuous intercourse, licentiousness by restoring the dignity of marriage — most loathsome and unnatural, fol- exalting it, in fact, to a sacrament, lowed in the wake of marital inde- and almost utterly prohibiting its dis- pendenee, and as the interests of hus- solution. From so strict a view of band and wife began to diverge, the marriage, however, Protestant coun- bonds of family affection became tries in modern times dissent, weakened. When the Empire sank § 10 INTKODUCTIOH". 14: of the family and lord of his spouse; and, somewhat indulgent of his own errant passions, he makes the chastity of his wife the one indispensable condition of their joint companionship. She, on her part, more easily chaste than himself, views with pain whatever embraces he may bestow upon others of her sex. Her personal influence over him, always strong, enlarges its scope as the State advances in arts and refinement, until at length woman, as the maiden, the wife, and the matron, becomes intellectually cultivated, a recognized social power in the community. Yearning now for a wider influence and equal conditions, her attention, strongly con- centrated upon the marriage relation, seeks to make the marriage terms more equal; first, she desires her property secured to her own use, whether married or single, and, indignant at the inade- quate remedies afforded under the law for wifely wrongs, demands the right of dismissing an unworthy husband at pleasure; more- over, as a mother, she claims that the children shall be hers hardly less than the father's. These first inroads are easily made; for what she demands is theoretically just. But just at this point the peril of female influence is developed. Woman rarely compre- hends the violence of man's unbridled appetite, or perceives clearly that, after all, in the moral purity and sweetness of her own sex, such as excites man's devotion and makes home attractive, is the fundamental safeguard of life and her ovra. most powerful lever in society, besides the surest means of keeping men themselves con- tinent. She forgets, too, that, to protect that purity and maintain her moral elevation, a certain seclusion is needful ; which seclusion is highly favorable to those domestic duties which nature assigns her as her own. More is granted woman. The bond of marriage being loosened, posterity degenerates, society goes headlong; and the flood-gates of licentiousness once fully opened, the hand must he strong that can close them again. Happiness, we may admit, differs with the capacity, like the great and small glass equally full which Dr. Johnson mentions. Yet marriage is suited to all capacities ; and men and women are the complement of one another in all ages, neither being greatly the intellectual superior of the other at any epoch, but the man always having necessarily the advantage in physical strength and the power to rule. The best-ordered marriage union for any com- munity is that in which each sex accepts its natural place, where woman is neither the slave nor the rival of man, but his intelligent hfelpmate; where a sound progeny is brought up under healthy 15 INTRODUCTION. § H home influences. The worst is that where conjugal and parental affection fail, and all is discord and unrest, a sea without a safe harbor. To the household, stability may prove more essential than freedom, and woman's status more dignified or more degraded, as the case may be, than the law assumes to fix it. Under all circum- stances, moreover, the physical superiority of the male companion, and his propensity to self-indulgence, are forces which woman will always have to reckon with. § 11. Remaining Topics of the Domestic Relations; Modem Changes. Of the remaining topics to be discussed in the present treatise, little need be said by way of general preface. These have felt the softening influences of modern civilization. The common-law doc- trine of Parent and Child finds its most important modifications in the gradual admission of the mother to something like an equal share of parental authority; in the growth of popular systems of education for the young; in the enlarged opportunities of earning a livelihood afforded to the children of idle and dissolute parents ; and in the lessened misfortunes of bastard offspring. Guardian and Ward, a relation of little importance up to Blackstone's day, has rapidly developed since into a permanent and well-regulated system under the supervision of the chancery courts, and, in this country, of the tribunals also with probate jurisdiction ; and much of the old learning on this branch of the law has become rubbish for the antiquary. The law of Infancy remains comparatively unchanged. We are now to investigate in detail the law of these several topics. But first the reader is reminded that the ofiice of the text- writer is to inform rather than invent ; to be accurate rather than original ; to chronicle the decisions of others, not his own desires ; to illumine paths already trodden; to criticise, if need be, yet always fairly and in furtherance of the ends of justice ; to analyze, classify, and arrange; from a mass of discordant material to extract all that is useful, separating the good from the bad, reject- ing whatever is obsolete, searching at all times for guiding princi- ples; and, in fine, to emblazon that long list of judicial precedents through which our Anglo-Saxon freedom " broadens slowly down." PART II. HUSBAND AND "WIFE, OHAPTEE I. MAEEIAGE. Section la. Definition of Marriage. 13. Marriage more than a Civil Contract. 14. Marriages Void and Voidable. 15. Essentials of Marriage. 16. Disqualification of Blood; Consanguinitjr and Affinity. 17. Disqualification of Civil Condition; Bace, Color, Social Bank, Beligion. 18. Mental Capacity of Parties to a Marriage. 19. Physical Capacity of Parties to Marriage; Impotence, etc. 20. Disqualification of Infancy. 21. DisquaUfieation of Prior Marriage Undissolved; Polygamy; Bigamy. 22. Same Subject; Impediments following Divorce. 23. Force, Fraud, and Error, in Marriage. 24. Force, Fraud, and Error, Subject continued. 25. Essential of Marriage Celebration, ee. Same Subject; Informal Celebration. 27. Same Subject; Informal Celebration. 28. Same Subject; Formal Celebration. 39. Same Subject; Formal Celebration. 30. Consent of Parents and Guardians. 31. Legalizing Defective Marriages; Legislative Marriage. 32. Bestraints upon Marriage. 33. Marriage in another State or Country. § 12. Definition of Marriage. The word " marriage " signifies, in the first instance, tiat act by which a man and woman unite for life, with the intent to dis- charge towards society and one another those duties which result from the relation of hushand and wife. The act of union having been once accomplished, the word comes afterwards to denote the relation itself. Marriage as understood in England means the voluntary union of a man and woman for life to the exclusion of all others and there- fore the courts will not recognize a union by polygamists as a valid marriage.^^* 21a. Bethel v. Hildyard, 36 Ch. D. 220. 16 17 MARRIAGE. § 13 § 13. Marriage more than a Civil Contract. It has been frequently said in tlie courts of this country that marriage is nothing more than a civil contract.'"' That it is a contract is doubtless true to a certain extent, since the law always presumes two parties of competent understanding who enter into a mutual agreement, which becomes executed, as it were, by the act of marriage. But this agreement differs essentially from all others. This contract of the parties is simply to enter into a certain status or relation. The rights and obligations of that status are fixed by society in accordance with principles of natural law, and are beyond and above the parties themselves. They may make settlements and regulate the property rights of each other ; but they cannot modify the terms upon which they are to live together, nor superadd to the relation a single condition. Being once bound, they are bound forever. Mutual consent, as in all contracts, brings them together ; but mutual consent cannot part them. Death alone dissolves the tie, — unless the legislature, in the exercise of a rightful authority, interposes by general or special ordinance to pronounce a solemn divorce ; and this it should do only when the grossly immoral con- duct of one contracting party brings unmerited shame upon the other, disgraces an innocent offspring, and inflicts a wound upon the community.^' So in other respects the law of marriage differs from that of ordinary contracts. For, as concerns the parties them- selves, mental capacity is not the qnly test of fitness, but physical capacity likewise, — a new element for consideration, no less important than the other. Again, the encumbrance of an existing union operates here as a special disqualification. Blood relation- ship is another. So, too, an infant's capacity is treated on peculiar principles, as far as the marriage contract is conecmed ; for he can marry young and be bound by his marriage. Third parties cannot attack a marriage and have it nullified because of its injury to their own interests. International law relaxes its usual requirements in favor of marriage. And finally the formal celebration now com- monly prevalent, both in England and America, is something pecu- liar to the marriage contract ; and in its performance we see but the faintest analogy to the execution and delivery of a sealed instrument. 22. See Stimson, Am. Stat. Law, § 23. Wiley v. Wiley, — Ind. App. 6100; Gatto v. Gatto, — N. H. — , — , 123 N. E. 252. Mutual consent is 106 A. 493. the basis of marriage. § 13 HUSBAND AND WIFE. 18 The earnratness with which so many of our American progenitors insisted upon the contract view of marriage may be ascribed in part to their hatred of the Papacy and ritualism, and their determina- tion to escape the Eoman Catholic conclusion that marriage was a sacrament. By no people have the marriage vows been more sacredly performed than by ours down to a period, at all events, comparatively recent. That a state legislature is not precluded from regulating the marriage institution under any constitutional interdiction of acts impairing the obligation of contracts, or inter- fering with private rights and immunities, has frequently been asserted.^* And as to the private regulation of their property rights, by the contract of parties to a marriage, that, of course, is to be distinguished from their marriage, which may take place without any property regulation whatever.^" We are, then, to consider marriage, not as a contract in the ordi- nary acceptation of the term, but as a contract sui generis, if indeed it be a contract at all, — as an agreement to enter into a solemn relation which imposes its own terms. On the one hand discarding the unwarranted dogmas of the Church of Home, by which marriage is elevated to the character of a sacrament, on the other we repudi- ate that dry definition with which the lawgiver or jurist sometimes seeks to impose upon the natural instincts of mankind. We adopt such views as the distinguished Lord Eobertson held.^* And Judge Story observes of marriage : " It appears to me something more than a mere contract. It is rather to be deemed an institution of society founded upon the consent and contract of the parties ; and in this view it has some peculiarities in its nature, character, operation, and extent of obligation, different from what belongs to ordinary contracts." " So Eraser, while defining marriage as a contract, adds in forcible language : " Unlike other contracts, it is one instituted by God himself, and has its foundation in the law of nature. It is the parent, not the child, of civil society." ^* And we may add that an American text-writer, of high repute upon the subject, not only pronounces for this doctrine, after a careful 24. Maguire v. Maguire, 7 Dana, 25. Lord Stowell, in Lindo v. 181; Green v. State, 58 Ala. 190; Belisario, 1 Hag. Con. 216; 1 Bishop, Frasher v. State, 3 Tex. App. 263; Mar. & Div., 5th ed., § 14. Bugh V. Ottenheimer, 6 Oreg. 231 ; 26. Duntze v. Levett, Ferg. 68, 385, Adams v. Palmer, 51 Me. 480; Wiley 397; 3 Eng. Ee. 360, 495, 502. V. Wiley, — Ind. App. — , 123 N. 27. Story, Confl. Laws, § 108, n. E. 252; Kitzman v. Kitzman, 167 28. 1 Fraser, Dom. Eel. 87. Wis. 308, 166 N. W. 789. Marriage of epileptic forbidden. 19 MAEEIAGE. § 14 examination of all the authorities, but ascribes the chief embarrass- ment of American tribunals, in questions arising under the con- flict of marriage and divorce laws, to the custom of applying the rules of ordinary contracts to the marriage relation.^" § 14. Marriages Void and Voidable. . A distinction is made at law between void and voidable mar- riages. This distinction, which appears to have originated in a conflict between the English ecclesiastical and common-law courts, was first announced in a statute passed during the reign of Henry VIII. ; and it is also to be found in succeeding marriage and divorce acts down to the present day. The distinction of void and voidable applies, not to the legal consequences of an imperfect mar- riage, once formally dissolved, but to the status of the parties and their offspring before such dissolution. A void marriage is a mere nullity, and its validity may be impeached in any court, whether the question arise directly or collaterally, and whether the parties be living or dead. But a voidable marriage is valid for all civil purposes until a competent tribunal has pronounced the sentence of nullity, upon direct proceedings instituted for the purpose of set- ting the marriage aside. When once set aside, the marriage is treated as void ab initio; but unless the suit for nullity reaches its conclusion during the lifetime of both parties, all proceedings fall to the ground, and both survivor and offspring stand as well as though the union had been lawful from its inception.^" Hence we ■see that while a void marriage makes cohabitation at all times unlawful, and bastardizes the issue, a voidable marriage protects intercourse between the parties for the time being, furnishes the usual incidents of survivorship, such as curtesy and dower, and encourages the propagation of children. But the moment the sen- tence of nullity is pronounced, the shield of the law falls, the inci- dents vanish, and innocent offspring are exposed to the world as bastards ; and herein is the greatest hardship of a voidable mar- riage. One feature in much of our modem marital legislation is •the increasing favor shown to innocent parties who were misled; where the man or the woman or both of them acted in good faith, <;ivil as well as criminal consequences are guarded against; and 29. 1 Bishop. Mar. & Div., 5th ed., 30. 1 St. 33 Hen. VIII, ch. 28. § 18. And see Dickson v. Diekson, 1 See 1 Bishop, Mar. & Div., 5th ed., "Yerg. 110, per Catron, J.; Ditson v. § 108 et seq. Ditson, 4 B. I. 87, per Ames, C. J. § 15 HUSBAND AND WIFE. 20 children innocently begotten before tbe disability was discovered in fact, are treated as legitimate ofFspring.^^ The old rule is that civil disabilities, such as idiocy and fraud, render a marriage void ; while the canonical impediments, such aa consanguinity and impotence, made it voidable only. This test was never a clear one, and it has become of little practical conse- quence at the present day. Statutes both in England and America have greatly modified the ancient law of valid marriages, and it can only be affirmed in general terms that the legislative tendency is to make marriages voidable rather than void, wherever the impediment is such as might not have been readily known to both parties before marriage; and where public policy does not rise superior to all considerations of private utility. Modern civilization strongly con- demns the harsh doctrine of ab initio sentences of nullity ; and such sentences have now in general a prospective force only, in order that rights already vested may remain unimpaired, and, still more, that children may not suffer for the follies of their parents.^" As for availing one's self of a voidable marriage as well as in divorce, it may be asserted as a general maxim that the party should be prompt to act when he has his right and knows it, and that he should also seek to enforce his rights with good faith and honor on his own part.^* Whenever or wherever an innocent party finds one's self entrapped into a void or voidable marriage, cohabitation should cease and the separation should be instant and absolute. § 15. Essentials of Marriage. We shall consider in this chapter that act by which parties unite in matrimony, — for to this the term " marriage " is most fre- quently applied. It may be stated generally that, in order to constitute a perfect union, the contracting parties should be two persons of the opposite sexes, without disqualification of blood or 31. See e. g. the "Enoch Arden." marriage of a negro and white par- Statutes cited in Stimson's Am. Stat. son. Carter v. Montgomery, 2 Tenn. Law, § 6116. Ch. 216. And see V"^^ as to impotence 32. Shelf. Mar. & Div. 154; 16. or physical incapacity. 479-484; 1 Bl. Com. 434; 1 Bishop. The local statutes are collated on Mar. & Div., 5th ed., §§ 105-120. See this point in Stimson's Am. Stat. Law, Stat. 5 & 6 Will. IV, eh. 54; 2 N. T. §§ 6116-6116. Eev. Stats. 139, § 6 ; Mass. Gen. Stats., 33. Affirmance, condonation, conni- ch. 106, § 4; Harrison t. State, 22 vance, are excuses suggested to the Md. 468; Bowers, 10 Eich. Eq. 551; defending party; and recrimination is Pingree v. Goodrich, 41 Vt. 47; Di- common in divorce libels. See vol- voree, 'poit. Held contra as to the ume II., post. 21 MAERIAOE. § 16 condition, both mentally competent and physically fit to disdharge the duties of th« relation, neither of them being bound by a pre- vious nuptial tie, neither of them withholding a free assent ; ** and the expression of their mutual assent should be substantially in accordance with the prescribed forms of law. These are the essen- tials of marriage. Hence we are to treat of the following topics in connection with the essentials of a valid marriage: first, the dis- qualification of blood; second, the disqualification of civil con- dition; third, mental capacity; fourth, physical capacity; fifth, the disqualification of infancy, which in reality is based upon united considerations of mental and physical unfitness ; sixth, prior marriage undissolved; seventh, force, fraud, and error; eighth, the formal celebration of a marriage, under which last head may be also included the consent of parents or guardians, not to be deemed as essential, except in conformity with the requirements of the marriage celebration acts. These essentials all have reference solely to the time, place, and circumstances of entering into the marriage relation, and not to any subsequent incapacity of either party. § 16. Disqualification of Blood; Consanguinity and Affinity. And, first, as to the disqualification of blood. On no point have writers of all ages and countries been more united than in the conviction that nature abhors, as vile and unclean, all sexual intercourse between persons of near relationship. But on few subjects have they differed more widely than in the application of this conviction. Among Eastern nations, since the days of the patriarchs, practices have prevailed which to Christian nations and in days of civilized refinement seem shocking and strange. The difficulty then is, not in discovering that there is some prohibition by God's law, but in ascertaining how far that prohibition extends. This difficulty is manifested in our language by the use of two terms, — " consanguinity " and " affinity ;" one of which covers the terra firma of incestuous marriages, the other offers debatable ground. The disqualification of consanguinity applies to marriages between blood relations in the lineal, or ascending and descending lines. There can be but one opinion concerning the union of rela- tions as near as brother and sister. The limit of prohibition among 34. Smith v. People, 1 Col. 121, Okl. — , 171 P, 853. 170 P. 959; Thomas v. James, — § 16 HUSBAND AND WIFE. 22 remote collateral kindTed has, however, been differently assigned in different countries. The English canonical rule is that of the Jew- ish law which protested against the promiscuous practices of other primitive peoples. The Greeks and Eomans recognized like prin- ciples, though with various modifications and alterations of opinion. But the Church of the Middle Ages found in the insti- tution of marriage, once placed among the sacraments, a most powerful lever of social influence. The English ecclesiastical courts made use of this disqualification, extending it to the seventh degree of canonical reckoning in some cases, and beyond all reasonable bounds.*' So intolerable became this oppression that a statute passed in the time of Henry VIII. foi'bade these courts thenceforth to draw in question marriages without the Levitical degree, " not prohibited by God's law."'° Under this statute, which is still es- sentially in force in England, the impediment has been treated as applicable to the whole ascending and descending line, and further, as extending to the third degree of the civil reckoning inclusive; or in other words, so as to prohibit all marriages nearer than first cousins. Archbishop Parker's table of degrees, which recognizes these limits, has been, since 1563, the standard adopted in the English ecclesiastical courts.*' The statute prohibition includes legitimate as well as illegitimate children, and half-blood kindred 35. In some Boman Catholic coun- tries — e. g., Portugal — the marriage of first cousins is still pronounced in- cestuous. See Sottomayor v. De Bar- ro3, L. R. 2 P. D. 81; L. R. 3 P. D. 1. 36. Stat. 32 Hen. VIII, ch. 38. See 1 Bishop, Mar. & Div., 5th ed., §§ 106, 107 ; 2 Kent, Com. 82, 83 ; Shelf. Mar. & Div. 163 et seq.; Wing v. Taylor, 8 Swab. & T. 278, 295. 37. 1 Bishop, Mar. & Div., 5th ed., § 318; Butler v. Gastrill, Gilb. ch. 156. According to this table, — A man may not marry hi» 1. Grandmother. 2. Grandfather's wife. 3. Wife 's grandmother. 4. Father's sister. 5. Mother's sister. 6. Father's brother's wife. 7. Mother's brother's wife. 8. Wife's father's sister. 9. Wife's mother's sister. 10. Mother. 11. Stepmother. 12. Wife's mother. 13. Daughter. 14. Wife's daughter. A woman may not marry her 1. Grandfather. 2. Grandmother's husband. 3. Husband's grandfather. 4. Father's brother. 5. Mother's brother. 6. Father's sister's husband. 7. Mother 's 'sister 's husband. 8. Husband's father's brother. 9. Husband 's mother 's brother. 10. Father. 11. Step-father. 12. Husband's father. 13. Son. 14. Husband's son. 23 MARRIAGE. § 16 equally with those of the whole blood.*' Its principles have been recognized in the United States.*" But the English law goes even further, and places aflSnity on the same footing as consanguinity as an impediment. Affinity is the relationship which arises from marriage between a husband and his wife's kindred, and vice versa. It is shown that while the mar- riage of persons allied by blood produces offspring feeble in body and tending to insanity, that of persons connected by affinity leads to no such result ; and further, that consanguinity has been every- where recognized as an impediment, but not affinity. The worst that can probably be said of the latter is, that it leads to a confu- sion of domestic rights and duties. No question has been discussed with more earnestness in both England and America, with less positive result, than one which turns upon this very distinction in a collateral application; namely, whether a man may marry his deceased wife's sister. This question has received a favorable response in Vermont.*" Such marriages were in England, how- ever, deemed incestuous until recently,*^ but were made valid even there in 1907,*^ and a marriage with a deceased husband's brother has been sustained there.** Oases of affinity as applied in a lineal direction, however, are more repugnant to sound policy, and indeed seem almost to come within the rule of consanguinity.** Marriages within the forbidden degrees of consanguinity were formerly only voidable in English law; but by modern statutes 38. 1 Bishop, Mar. & Biv., 5th ed., affinity ceases with the dissolution of §§ 315, 317; Reg. V. Brighton, 1 B. & the marriage which produced it. S. 447. Therefore, though a man is, by af&n- 39. Marriage between an uncle and ity, brother to his wife's sister, yet, niece of full blood, or between an aunt upon the death of his wife, he may and nephew, has been treated as in- lawfully marry her sister." cestuous in various jurisdictions. 41. Hill v. Good, Vaugh. 302 ; Har- Harrison v. State, 22 Md. 468 ; Bow- lis v. Hicks, 2 Salt. 548 ; Shelf. Mar. & ers v. Bowers, 10 Rich. Eq. 551. And Div., pp. 172, 178; 2 Kent, Com, 84, n., there are a few States which forbid and authorities cited; Reg. v. Chad- the marriage of persons more nearly wick, 12 Jur. 174, 11 Q. B. 173 ; Paw- related than second cousins. SeeStim- son v. Brown, 41 L. T. (N. S.) 339; son Am. Stat. Law, § 6111. Ex parte Naden, L. R. 9 Ch. 670. And 40. Blodget V. Brinsmaid, 9 Vt. 27 and see 1 Bishop, Mar. & Div., 5th ed.; § 314; Paddock v. Wells, 2 Barb. Ch, 331. CoUamer, J., in Blodget v. Brins maid, makes this ingenious distinc tion: " The relationship by conaan see Commonwealth v. Perrymsji, 2 Leigh, 717, as to the Virginia statute on this point. 42. 7 Edw. 7, ch. 47. 43. In re Bozzelli (1902), 1 Ch. 751. guinity is, in its nature, incapable of 44. Cf. Table of Degrees, supra; dissolution; but the relationship by and Stimson, § 6111. § 17 HUSBAND AND WIFE. 24 they liave been made null and void. In this country they are generally pronounced by statute void (in some cases void from the time the sentence is pronounced),*^ and the offending parties are liable to imprisonment if aware of the relationship. But with regard to marriages among relatives by affinity, the rule is not so stringent as in England,*" although marriages between first cousins are void in some States.*'' § 17. Disqualification of Civil Condition; Race, Color, Social Rank, Religion. Second, as to the disqualification of civil condition. Eace, color, and social rank do not appear to constitute an impediment to mar- riage at the common law, nor is any such impediment now recog- nized in England.** But by local statutes in some of the United States, inter-marriage has long been discouraged between persons of the negro, Indian, and white races.** With the recent extinction of slavery, many of these laws have passed into oblivion, together with such as refused to allow to persons held in bondage, and negroes generally, the rights of husband and wife. The thirteenth article of amendment to the Constitution gives Congress power to enforce the abolition of slavery " by appropriate legislation." As to persons formerly slaves, there are now acts of Congress which legitimate their past cohabitation, and enables them to drop the fetters of concubinage. And the manifest tendency of the day is 45 That is to say, not void ah against annulment of incestuous mar- mito. See supra, § 14; Harrison v. riage. State, 22 Md. 468. And see Bowers v. 48. 1 Bishop, Mar. & Div., 5th ed., Bowers, 10 Eieh. Eq. 551; Parker's §§ 308-311; 1 Burge, Col. & For. Appeal, 8 Wright, 309, where an in- Laws, 138. cestuous marriage is treated as simply 49. See Bailey v. Piske, 34 Me. 77; voidable. State v. Hooper, 5 Ire. 201; State v. 46. 2 Kent, Com. 83, 84, and notes ; Brady, 9 Humph. 74; Barkshire v. 1 Bishop, Mar. & Div., 5th ed., §§ 312- State, 7 Ind. 389; 1 Bishop, Mar. & 320; Eegina V. Chadwick,12lJur. 174; Div., 5th ed., §§ 154-163; Sehouler, Sutton T. Warren, 10 Met. 451; Bon- Hus. & Wife, § 16. One drop less ham V. Badgley, 2 Gilm. 62»; Wight- than one-fourth negro blood saves man v. Wightman, 4 Johns. Ch. 343; from the taint in Virginia. McPher- Butler V. GastriU, Gilb. Ch. 156 ; Bur- son v. Commonwealth, 28 Gratt. 939. gess V. Burgess, 1 Hag. Con. 384; The Missouri statute declaring mar- Blackmore v. Brider, 2 Phillim. 359. riages between white persons and Some marriages of affinity are pro- negroes a felony is constitutional, hibited by a local statute, and yet not even though it permits the jury to de- made void. Boylan v. Deinzer, 45 termine from appearances the propor- N. J. Eq. 485. tion of negro blood. State v. Jackson, 47. Arado v. Arado, 205 HI. App. 80 Mo. 175. 261, 117 N. E. 816. No estoppel 25 MABEIAQE. § 18 towards removing all legal impediments of rank and condition, leaving individual tastes and social manners to impose the only restrictions of this nature.'" But the race barrier has a strong foundation in human nature, wherever marriage companionship is concerned.^^ § 18. Mental Capacity of Parties to a Marriage. Third, as to mental capacity. No one can contract a valid mar- riage unless capable, at the time, of giving an intelligent consent. Hence the marriages of idiots, lunatics, and all others who have not the use of their understanding at the time of the union are now treated as null ; though the rule was formerly otherwise, from per- haps too great regard to the sanctity of the institution in the English ecclesiastical courts.*^ What degree of insanity will amount to disqualification is not easily determined ; so varied are the manifestations of mental disorder at the present day, and so gradually does mere feebleness of intellect shade off into hopeless idiocy. Certain is it that a person may enter into a valid marriage, notwithstanding he has a mental delusion on certain subjects, is eccentric in his habits, or is possessed of a morbid temperament, provided he displays soundness in other respects and can manage his own affairs with ordinary prudence and skill,'* and the mere fact that a girl is inexperienced and unlearned does not show her inca- pacity."* Every case stands on its own merits ; but the usual test 50. Act July 25, 1866, eh. 240; Act worth observing. June 6, 1866, ch. 106, § 14. And see 51. Marriage between negroes (or 15th Amendment tJ. S. Const.; Stew- Indians) and whites is still forbidden art V. Munehandler, 2 Bush (Ky.), in many of the United States, those 278 ; State v. Harris, 63 N. C. 1. For in particular where negroes chiefly Southern statutes which now legalize dwell ; while in Oregon and some other the marriages of former slaves, etc., Pacific States similar prohibitions of see Sehouler, Hus. and Wife, § 16; white and Chinese marriages are also Smith v. Perry, 80 Va. 563; found. Stimson, § 6112. Willians v. The State, 67 Ga. 260; SZ. See Lord Stowell in Turner v. Washington v. Washington, 69 Ala. Meyers, 1 Hag. Con. 414; 1 Bishop, 281; Long v. Barnes, 87 N. C. 329; Mar. & Div., 5th ed., § 125; Stimson Downs V. Allen, 10 Lea, 652. Am. Stat. Law, § 6112; Wiley v. As to statutes formerly forbidding Wiley, — Ind. App. — , 123 N. E. marriage between a Roman Catholic 252. and Protestant, see Commonwealth v. 53. 2 Kent, Com. 76; Browning v. Kenney, 120 Mass. 387; Philadelphia Keane, 2 PhilUm. 69; 1 Bishop, Mar. V. Williamson, 10 Phila. 176. The & Div., 5th ed., §§ 124-142; Turner v. statute 19 Geo. IL, ch. 13, to this ef- Meyers, 1 Hag. Con. 414, 4 Eng. Ec. feet, has partial reference to the sol- 440, 1 Bl. Com. 438, 439. emnization of marriage by a Popish 54. Green v. Green, — Fla. — ,80 priest. These are disabilities imposed So. 739. by a Protestant parliament, it is § 18 HUSBAND AND WIFE. 26 applied in the courts is that of fitness for the general transactions of life ; for, it is argued, if a man is incapable of entering into other contracts, neither can he contract marriage/'' This test is suffi- ciently precise for most purposes. Yet we apprehend the real issue is whether the man is capable of entering understandingly into the relation of marriage. There are two questions, however: first, whether the party understands the marriage contract; second, whether he is fit to perform understandingly the momentous obliga- tions which that contract imposes ; and both elements might well enter into the consideration of each case. " If any contract more than another," observes Lord Penzance in a recent English case, " is capable of being invalidated on the ground of the insanity of either of the contracting parties, it should be the contract of mar- riage, — an act by which the parties bind their property and their persons for the rest of their lives." ^' Marriage contracted dTiring a lucid interval is at law deemed valid ; " but the English statute provides that such marriages are void when a commission of lunacy has once been taken out and remains unrevoked."' Similar pro- visions are to be found in some of our States. On the other hand, marriage contracted by a person habitually sane, during temporary insanity, is unquestionably void,°° as of course would be any mar- riage contracted by one at the time permanently insane.*" 65. Mudway v. Croft, 3 Curt. Eo. Mar. & Div., § 130 ; Banker v. Banker, 671; Anon. 4 Pick. 32; Cole v. Cole, 6S N. T. 409; Parker v. Parker, 6 5 Sneed, 57; Atkinson v. Medford, 46 Eng. Ec. 165; Smith v. Smith, 47 Me. 510; Ward v. Dulaney, 23 Miss. Miss. 211. 410; Elzey v. Elzey, 1 Houst. 308; 58. Stat. 15 Geo. II., ch. 30 (1742), MeElroy's Case, 6 W. & S. 451. See not part of the common law in this 1 Bishop, Mar. & Div., § 128; Ex country. parte Glen, 4 Des. 546; Kitzman v. 59. Legeyt v. O'Brien, Milward, Kitzman, 167 Wis. 308, 166 N. W. 325; Parker v. Parker, 6 Eng. Ec. 789 (marriage of epileptic annulled) ; 165. In re Jansa's Estate, 169 Wis. 220, 60. See Lord Penzance in Hancock 171 N. W. 947. v. Peaty, L. B. 1 P & D. 335 ; Banker 56. Hancock v. Peaty, L. E. 1 P. & v. Banker, 63 N. T. 409 ; McAdam v. D. 335, 341. The question is whether Walker, 1 Dow, 148; 1 Bishop, Mar. the person had suflcient mental & Div., § 130; Smith v. Smith, 47 capacity to make the contract of mar- "^i^j^s. 211. Cf. Waymire v. Jetmore, riage. Evidence of his mental condi- 22 Ohio St. 271. tion before and after the marriage is And as to development of the admissible. St. George v. Biddeford, malady about the time of the cere- 76 Me. 593 ; Durham v. Durham, 10 mony, see Schouler, Hus. & Wife, § 19. P. D. 80. See Eeed v. Eeed, 175 N. T. S. 264. 57. Shelf. Mar. & Div. 19T ; 1 Bishop, 27 MAEBIAGE, § 18 Upon the principle of temporary insanity, drunkenness incapaci- tates, if carried to the excess of delirium tremens; though not, it would appear, if the party intoxicated retains sufficient reason to know what he is doing."* Drunkenness was formerly held a bad plea, for the common law permitted no one to stultify himself; but the modem rule is more reasonable."^ Some cases require that fraud or unfair advantage should be shown ; yet the better opinion is that even this is unnecessary.*^ Deaf and dumb persons were formerly classed as idiots; this notion, however, is exploded. They may now contract marriage by signs.'* Total blindness or mere deafness, of course, constitutes no incapacity. In general, we may add that the disqualification of insanity is often considered in connection with fraud or undue influence exercised by or on behalf of the other contracting party, over a weak intellect, for the sake of a fortune, a title, or some other worldly advantage.*' Suits of nullity, brought to ascertain the facts of insanity, are favored by law both in England and America ; and modern legis- lation discountenances all collateral disputes involving questions so painful and perplexing. " Though marriage with an idiot or lunatic be absolutely void, and no sentence of avoidance be abso- lutely necessary," says Chancellor Kent, " yet, as well for the sake of the good order of society as for the peace of mind of all persona concerned, it is expedient that the nullity of the marriage should be ascertained and declared by the decree of a court of competent jurisdiction." *° In many States this is now the only course to be pursued, such marriages being treated as voidable and not void ; and the insane spouse dying before proceedings to dissolve the mar- riage are begun, the survivor takes all the benefits of a valid 61. Clement v. Mattiaon, 3 Bich. cited; Elzey v. Elzey, 1 Houst. 308; 93 ; 1 Bishop, Mar. & Div., 5th ed., Steuart v. Robertson, 2 H. L. Se. 494. § 131; Gore v. Gibson, 13 M. & W. 64. 1 Bishop, Mar. & Div., 5th ed., 623, 2 Kent, Com. 451, and authorities § 133, and eases cited; 1 Fraaer, Dom. cited; Lord Ellenborough, ia Pitt v. Eel. 48; Dickenson v. Blisset, 1 Dick- Smith, 3 Camp. 33; Scott v. Paquet, ens, 268; Harrod v. Harrod, 1 Kay L. E. 1 P. C. 552. & Johns. 4. 62. See Gillett v. Gillett, 78 Mich. 65. Fraud as an element of dis- 184. qualification will be considered pott, 63. See 1 Bishop, Mar. & Div., 5th 123. ed., §§ 131, 132, and conflicting casea 66. 2 Kent, Com. 76. § 19 HUSBASD ASH WIFE. 2S mairiage accordingly." The issue in all such ca^s is, mental condition at the verv time of the marriage,** § 19. Phj^cal Capacity oi Parties to Marriage; Impotence, &c Fourth. The question of physical capacity involves an inve?ti- gation of facts even more painful and humiliating than that of mental capacity. Yet as marriage is instituted, in part at least, for the indulgence of natural cravings and with a view to propagate the human family, sound morality demands that the proper means shall not be wanting. Our law demands that, at all eveits, the sexual desire may be fully gratified. Where impotence exists. therefore, there can be no valid marriage. By this is m^eant simply that the sexual organization of both parties shall be complete. But mere barrenness or incapacity of conception constitutes no legal incapacity in England and the United States, nor can a physical defect which does not interfere with copulation ; nor indeed any disability which is ctirable, even though not actually cured, unless the party disabled unreasonably refuses to submit to the proper remedies.®* Such refusal, however, puts the disabled spouse clearly in the wrong.^* The refusal of carnal intercourse by a healthy spouse is quite a different matter, and gives rise to other inquiries under the head of divorce ; " nor certainly can physical incapacity arising from some cause subsequent to marriage be referred to the present subject, the question being as to incapacity at the date of marriage.'* The reader wUl find Dr. Lushington's opinion in the leading case of Deane v. Aieling '* sufficiently suggestive as to the extent 67. 1 Bishop, Mar. & Bit., Sth ed., BeL 53; B. v. B., 28 E. L. & Eq. 95; §§ 136-142 ; Goshen t. Biehmond, 4 1 BL Com. 440, «,, by Chitty and Allen, 45S; Hamaker v. Hamaker, 18 otheis; AyL Paier, 227; Devanbagh HL 137; Williamson t. WilBams, 3 t. Devanbagh, 5 Paige, 554: Essex v. Jones, Eq. 446; Wiser v. Loekwood, Essex, 2 Howell, St, Tr. 7S6; Briggs 42 Vt. 720; Brown v. Westbrook, 27 v. Morgan, 3 Phillim. 325. For a case Ga. 102: 31 X. T. Supr. 461; Setzer where the disability was possibly T. Setzer, 97 X. C. 252. As to bring- eorable, see G. v. 6., L. E. 2 P. & D. ing such suits, see, further, 1 Bishop, 2S7. Mar. & DiT., §§ 139-142; SchotJer, 70. H. t. P., L. E. 3 P. & D. 126. Hus. and Wife, § 21. In Maine such 71. See, further, Cowles v. Cowles, a marriage may be impeached col- 112 Mass. 29S. laterally, 76 Me. 419. 72. See Morrell t. Morrell, 24 X. T. 68. Nonnemacher v. Nonnemaeher, Supr. 324. 159 Penn. St. 634. 73. 1 Eobertson, 279, 298. And see 68. 1 Bishop, Mar. & Div., §§ 321- modem case of TJ. t. J., L. B. 1 P. 340, and cases cited; 1 Fraser, Dom. & r>. 460; Stimson, § 6113. 29 MABEIAGE. § 20 of malformation which invalidates a marriage on the ground of physical incapacity. It will be observed that this case establishes a principle which later cases do not undermine ; namely, that it is capacity for fulfilling the conditions of copulation, and not of pro- creation, that our own law regards. We may add that, with the rapid progi'ess of medical science during the present century, cases of absolute and incurable impotence are happily diminishing in number. It is reasonable that suit should be required to terminate a marriage on this ground.'* § 20. Disqualification of Infancy. Fifth. Infancy may be an impediment to marriage; but only so far, on principle, as the marrying party, by reason of imperfect mental and physical development, may be brought within the reason of the last two rules. Hence we find that infancy is not a bar to marriage to the same extent as in ordinary contracts ; since minors cannot repudiate their choice of husband or wife on reaching major- ity. Xot that marriage calls for less discrimination, for it carries with it consequences far beyond all other contracts, involving prop- erty rights of the gravest import ; but because public policy must protect the marriage institution against the reckless imprudence of individuals. A certain period is established, called the age of con- sent, which in England is fixed at fourteen for males and twelve for females, — a rule adopted from the Eoman law, but which, in this country, varies all the way from fourteen to eighteen for males and twelve to sixteen for females, according to local statutes ; dif- ferences of climate and physical temperament contributing, doubt- less, to make the rule of nature, in this respect, a fluctuating one.'° 74. See for instances: T. v. M., L. potency renders a marriage voidable E. 1 P. & D. 31; T. V. D., L. R. 1 and not void). P. & D. 127; Carll v. Prince, L. E. 75. See 2 Kent, Com. 79, notes, 1 Ex. 246. With modern facilities, in- showing the periods fixed in different eluding the right of parties to testify States as the age of consent. In the in their own suits, such cases appear old States the common-law rule gen- to be on the increase in the courts erally prevails. In Ohio, Indiana, and of Great Britain. See 1 Bishop, § various other western States, the age 331 ; Sehouler, Hus. & Wife, § 23, as of consent is raised by various stand- to sentences of nullity such cases. The ards to eighteen or even twenty-one latest English cases interpose no bar- for males, and fourteen or even rier for a mere delay in seeking a eighteen for females. See Stimson, § decree of nullity for impotence. 10 6110; Green v. Green, — Pla, — , 80 P. D. 75; 10 App. Gas. 171 ; Martin v. So. 739 (common-law rule adopted). Otis, — Mass. — , 124 N. E. 294 (im- § 20 HrSBAZXD A2JD WIFE. 3l> The common-law rule is usuallv altered by statute in this cotmtrv/* Marriages \ritliout the age of consent are as binding as those of adults ; marriages within such age may be avoided by either party on reaching the period lixed by law. And even though one of the jjarties was of suitable age and the other too young, at the time of marriage, yet the former, it appears, may disaffirm as well as the latter." Herein is observed a departure from that principle of law, that an infant may avoid his contract while the adult remaius bound ; it is a concession which the law makes in favor of mutuality in the marriage compacts. Marriages celebrated before both par- ties have reached the age of consent may be disaffirmed in season, either vrith or without a judicial sentence.^ When the agt' of consent is reached, no new ceremony is requisite to complete the marriage at the common law; hut election to affirm will then be inferred from circumstances, sitch as continued intercourse, and even slight acts may suffice to show the intention of the parties. If they then choose to remain husband and wife, they are bound for- ever. Disaffirmance, on the other hand, may be either with or without a judicial sentence."' Marriage within the age of consent seems therefore to be neither strictly void nor strictly voidable. Inn rather inchoate and imperfect ; *'' with, however, a reservation by the ecclesiastical law as to marriage with an infant below seven years, which is treated as altogether ntill.*' 76. Johnson t. Aleiandex, — Cal. 143-153, and cises cited; 1 Bl. Com. App. — , ITS P. 297; Morgan v. Mop- 436; 1 Fraser, Dom. EeL 42; Parton gan, 14S Ga. 625, 97 S. E. 675 (seven- v. Hervey, 1 Gray, 119; Fitipatriek teen years of age) ; Wiley t. Wiley, v. Fitipatrici, 6 Xev. 63. See Shafher — In'd. App. — , 123 N. E. 852. v. State, 20 Ohio, 1, S6 Wis. 49S, 65 77. Co. latt. 79, and Harg. «, 45; Vt, 663; fontrji. Goodwin v. Thomp- 1 East, P. C. 468; 1 Bishop, Mar. & son, 2 Io\Ta, 329; Aymar v. Eoif, 3 Div., 5th. ed., § 149. But it is not Johns. Cli. 49, as to the invalidity of certain that a party of competent age such marriage, unless confirmed hj may disaffirm equally with the party cohabitation after reaching the statu- incompetent People v. Slac^, 15 tory age. Local statutes affect this Mich. 193. whole subject. Owen v. Coffey, 201 78. The complaint should be in the Ala. 531, 7S So. SS5 (voidable at elec- niime of the infant, and not of his tion of infant) : People v. Ham, 306 guardian. Pense v. Aughe, 101 Ind, 111. App. 543 (voidable and not void) ; 317. See Holtz >. Pick, 42 Ohio Magee v. Xealon, 177 N. Y. S. 517 St. 23. Fraudulent representation by (marriage of one under age is not the infant as to his age does not estop void ah iiiitio. but is voidable only ou him from annulling. Eliot v. Eliot, judicial decree) : Allerton v. AUerton, SI Wis. 295, an extreme case. 172 N. Y. S. 152. 79. 1 Bishop, Mar. & Div.. § 150. 81. 2 Burn. Ec Law, 434; 1 Bishop, 80. Co. Litt. 33a; 2 Kent, Com. 78, Mar. & Div., § 147. 79; 1 Bishop, Mar. & Div., 5tti ed„ §§ 31 MABBIAGB. § 21 Only one of the parties to a marriage of one within the age of consent may object to its legality, and action for annulment cannot be brought by a parent of the infant against his wishes.*^ § 21. Disqualification of Prior Marriage Undissolved ; Polygamy ; Bigamy. Sixth, as to the impediment of prior marriage undissolved. It is a well-established rule in civilized countries that marriage be- tween parties, one of whom is bound by an existing marriage tie, is not only void, but subjects the offenders to criminal prosecution.'* Polygamy, or bigamy as it is often termed, — since the common law of England could scarcely conceive of such conjunctions carried beyond a double marriage, — is discarded by all Christian com- munities. It was tolerated, but never sanctioned, in certain terri- tory of the United States. The fimdamental doctrine of Christian marriage is that no length of separation can dissolve the union, so long as both parties are actauUy living, even though lapse of time should raise a reasonable supposition of death. But to render the second marriage void at law, the first should have been valid in all respects.** Some of the harsher features of the old law have been softened in our own legislation; and statutes are not uncommon which possibly extend facilities for divorce from the old relation, and in any event protect the offspring of a new marriage contracted erroneously, but in good faith, by parties who had reason to believe a former spouse dead.*° But such re-marriage in bad faith and without due inquiry finds no favor.*' So, too, polygamy in fact is relieved of its penal consequences as concerns parties not guilty of polygamy in intention ; but a certain period must elapse — usually 82. Arado v. Arado, 205 HI. App. App. — , 210 S. W. 242 (although first 261, 117 N. E. S16; Marone v. Marone, marriage was a common-law marriage 174 N. T. S. 151; Magee v. Nealon, and second marriage was ceremonial, 177 N. T. S. 517; contra, Melcher v. entered into in good faith); McCaig Melcher, lOe Xeb. 790, 169 N. W. 720 v. State, — Ala. App. — , 80 So. 155 ; (by statute non -consenting parent Vigno v. Vigno, — N. H. — . 106 A. may petition for annulment). 285. 83. Cro. Eliz. S58; 1 Salk. 121; 2 84. Bruce v. Burke, 2 Add. Ec 471; Kent, Com. 79, and ontes; 1 Bishop, 2 Eng. Ec 381; Reg. v. Chadwick, 12 Mar. and Div., §§ 29x5-303, and au- Jur. 174 ; Patterson v. Oaines, 6 How. thorities cited; Shelf., Mar. and Div. (U.S.) 550. 224; Hyde v. Hyde, L. E. 1 P. & D. 85. See 2 N. T. Eev. Stat, p. 130; Klee v. Klee, 171 N. T. S. 632, 139, §§ 6, 7; Mass. Eev. Laws, ch. 175 N. Y. S. 908; Succession of 151, § 14; Stimson, Am. Stat. Law, Thomas, 144 La. 25, 80 So. 186 Cun- § 6116. ningham v. Cunningham, — Tei. Civ. 86. Gall v. Gall, 114 N. Y. IW. § 21 HUSBAND AND WIFE. 32 seven years — before death can be presumed from one's mere con- tinuous absence without being beard from. Such was one of the provisions in the English statute passed to make bigamy a civil offence, in the reign of James I.,*'' which also exempted from pun- ishment for bigamy persons remarried, during the lifetime of the former spouse, after a divorce, sentence of nullity, or disaffirmance on reaching age of consent. Similar statutes for the punishment of bigamy, with similar reservations, are enacted in this country ; but in England and the United States some defects of the original legislation are now cured, and divorce from bed and board would not exempt an offender from prosecution.** Polygamy, with such exceptions, remains an indictable offence. One of its less obvious evils — though not the least important when polygamy is regarded as a legalized institution in a free country — is that the patriarchal principle which it introduces is thoroughly hostile to free institu- tions ; and this fact was pointed out many years ago by one of -our best writers on political ethics.** l^or is a new marriage entered into by one spouse in good faith, and in full but erroneous belief that the other spouse is dead, valid even after the lapse of the statutory absence ; such parties are not free to marry again, but only relieved of the worst consequences."" 87. Stat 1 Jae. I, ch. 11, 1604. See 90. Glass v. Glass, 114 Mass. 563, Queen v. Lumley, L. E. 1 C. C. 196; and cases cited; Williamson v. Queen v. Curgerwen, L. E. 1 C. C. 1. Parisien, 1 Johns. Ch. 389; Miles v. 88. In New York the period of ab- Chilton, 1 Eobertson, 684 ; Spicer v. sence is five yeara; in Ohio, three Spicer, 16 Abb. Pr. (N. 8.) 112; 1 years; in Massachusetts, seven years. Bishop, Mar. & Div., § 399; Webster but with a special relaxation of the v. Webster, 58 N. H. 3, 124 Pelin. St. penalty. StUl further, see 2 Kent, 646. Such marriage, under Massaehu- Com. 79, and notes. See also Stats. 9 setts statutes, may be annulled by a Geo. rV., ch. 31; 24 and 25 Vict., ch. sentence containing (in order to make 100 ; 1 Bishop, § 297 ; Stimson, § 6112. children begotten before the corn- Legitimating statutes are to be found mencement of the suit legitimate) the in numerous States on behalf of the statement that it was contracted in offspring of innocent marriages of good faith and with the fuU belief of this kind. 1 Bishop, § 301 ; cases the parties that the absent spouse was infra. dead. Glass v. Glass, supra, Eandlett 89. 2 Lieber, Pol. Ethics, 9, cited in v. Eice, 141 Mass. 385, presented note to 2 Kent, Com. 81. curious facts. Lawful competence to As to prosecutions for bigamy, see marry again results, however, under Kopke V. People, 43 Mich. 41 ; Eeeves some local statutes, from such absence. V. Eeeves, 54 HI. 332 ; Queen v. Allen, Strode v. Strode, 3 Bush, 227. Where L. E. 1 C. 0. 367, and other cases proceedings for annulling are discon- cit«d; Schouler, Hus. and Wife, § 25; tinued upon the death of such former also "Bigamy" in Bishop or Wharton spouse, the parties may marry again, on Criminal Law. Sneathen v. Sneathen, 104 Mo. 201. 83 MABBIAGE. § 22 One wlio innocently marries another having an undivorced spouse may have the colorable marriage declared void independently of all divorce legislation.**^ It is often held that there is a presumption of the validity of the second marriage and that the first marriage has been terminated,"^ but this presumption does not hold where there is evidence to the contrary.** § 22. Same Subject; Impediments following Divorce. Under this same head may be considered a disqualification intro- duced into some parts of this country by legislative enactments; namely, the impediment which follows divorce.** A divorce a vinculo should on general principles leave both parties free to marry again. But such is not always the case. Thus, in Kentucky, the person injured might not marry again before the expiration of two years from the decree of dissolution.*^ And in several States the guilty party is prohibited from marrying again during the lifetime of the innocent spouse divorced, — a provision of law seemingly more judicious to apply in terrorem by way of prevention than as a suitable method of punishment.*" In Scotland there is a peculiar but not unreasonable law, which forbids the guilty party after divorce from marrying the particeps criminisj this was framed evidently to defeat collusive practices between persons desiring to put away an outstanding obstacle to their own union.*'^ A divorce nisi is of course only partial; and a marriage solemnized before 91. Fuller v. Fuller, 33 Kan. 588. validity in collateral proceedinga. See succession of Thomas, 144 La. 25, And see 153 Mass. 533. 80 So. 186 (good faith not presumed 96. See Parke v. Barron, 20 Ga. where a mature woman marries a man 703 ; Clark v. Cassidy, 62 Ga. 407, 53 whom she kfiows to be already mar- Barb. 454. Such prohibitions are ried depending on his mere assertion sometimes evaded by going into an- that he had obtained a divorce). other neighboring State, and there 92. Itv re Salvia's Will, 173 N.T.S. contracting what by local law is a 897. Zn. re Hilton 's Estate, — Pa. — , valid marriage. Thorp v. Thorp, 90 106 A. 69; Tanton v. Tanton, — N. T. 602, 92 N. T. 521, 86 N. T. 18. Tex. Civ. App. — , 209 S. W. 429. Notwithstanding a New York prohi- 93. Succession of Thomas, 144 La. bition, parties went into New Jersey 25, 80 So. 186. or Connecticut for such purpose. 76. 94. 1 Bishop, Mar. & Div., 5th ed.. See Hahn v. Hahn, — Wash. — , 176 §§ 304-307; Stimson, § 6241. P. 3. 95. Cox V. Combs, 8 B. Monr. 231. 97. 1 Fraser, Dom. Eel. 82. In a Mason v. Mason, 101 Ind. 25, treats few of the United' States, legislation a marriage in violation of such in- is found to the same effect. Stimson, hibition as voidable only, so that one Am. Stat. Law, § 6241. party may be estopped to deny the 3 ,§ 23 HUSBAND AND WIFE. 34 the absolute decree can take effect is void/" but where the parties live together after the divorce becomes valid the second marriage becomes also valid.'" § 23. Force, Fraud, and Error, in Marriage. Seventh. All marriages procured by force or fraud, or involv- ing palpable error, are void; for here the element of mutual con- sent is wanting, so essential to every contract,^ and fraud of a vital character going to the essence of the transaction will be ground more, there are several recent decisions in this country which point to an obligation on the husband's part to show reasonable cause why his wife should follow him when he changes his abode.^° This later uncertainty in the law is unfortunate. "Where a pair disagree in the choice of a home, either the right of decision must belong to one of them, or the court should sit as umpire. No one has suggested that the wife should choose the domicile, nor can judicial interference be well called in, except to divorce the parties. Yet, without a home in common, of what avail is matrimony? We cannot but regret that any of our courts should seem to legalize domestic discord; that there should be good American authority to sanction the wife's refusal to accompany her husband on any such trivial pretext as " the dislike to be near his relatives."*" How- ever, although the husband has the right to fix the family domicile, still this must be done fairly and with due regard for the comfort and happiness of the wife, and the husband may be refused a di- vorce on account of the vsdfe's refusal to live in a house with his relative with whom she had quarreled*^ or in proximity with his relatives.*^ One seeking a divorce cannot obtain the benefit of his 35. See 1 Fras. Dom. Eel. 448. 38. Winkles v. Powell, 173 Ala. 46, 36. Clark v. Clark, 19 Kans. 523. 55 So. 536. 37. SpafEord v. SpafEord, 199 Ala. 39. Bishop v. Bishop, 30 Penn. St. 300, 74 So. 354, L. E. A. 1917D, 773; 412; Gleason v. Gleason, 4 "Wis. 64; Klein v. Klein, 29 Ky. Law Eep. 1042, Powell v. Powell, 29 Vt. 148. See 96 S. W. 848. A husband cannot ere- Moffatt v. Moffatt, 5 Cal. 280 ; Cutler ate a domicile for his wife in a for- v. Cutler, 2 Brews. (Pa.) 511. «ign State by deserting her and re- 40. Powell v. Powell, 29 Vt. 148. siding there. Commissioner of Public 41. Hall v. Hall, 69 W. Va. 175,71 Charities v. Patterson, 169 N. T. S. S. E. 103, 34 L. E. A. (N. S.) 758, 316. citing text, Husband and Wife, 460. 4Z. Powell V. Powell, 29 Vt. 148. § 44 HUSBAND AND WIFE. 66 own wrong and the courts will not allow their use to obtain a benefit founded directly upon a breach of duty to provide th'e wife with a suitable home. The English rule as to the wife's duty of adherence still con- tinues strict. A wife petitioned for divorce on the ground of her husiband's desertion. The facts showed that shortly after her mar- riage she went with her husband to Jamaica, where he held an appointment from which he derived not more than £100 a year, and in consequence of his slender income she had to put up with some hardship. Her health suffered, and in less than a year, namely, in 1846, she returned to England. Her husband continued abroad, during the greater part of the time at Jamaica, where he succeeded in getting a more lucrative appointment. When she left him for England he acted kindly to her, promised to allow her £30 a year, but made no arrangement for a permanent separation. Their correspondence continued until 1851, when the husband asked her to return, and provided funds for her passage, but she wrote that her health would not permit her to do so. Here all correspondence and intercourse ceased until 1856, when an allow- ance was again effected through the intervention of a relative ; this the husband continued until 1860, and then stopped it. He ap- pears to have led a loose life after the wife's refusal to return. The court held that these circumstances did not constitute desertion on the husband's part, nor entitle her to divorce.** § 43. Domicile relative to Alien and Citizen.- As corollary of the general proposition already announced, it is held that an alien woman marrying with a citizen of the United States becomes, by virtue of such marriage, a citizen also, with the usual capacity as to purchase, descent, and inheritance ;** and that of aliens intermarried, if the husband becomes a naturalized citizen, the wife in like manner is naturalized, even though she has not yet migrated from her native country.*^ § 44. Woman's Name changed by Marriage. Marriage at our law does not change the man's name, but it confers his surname upon the woman. Until a decree of divorce, 43. Keeeh v. Keech, L. E. 1 P. & D. 44. Luhrs v. Bimer, 80 N. Y. 171; 641 (1868). Adultery being proved, Kelly v. Owen, 7 WaU. 496. however, divorce was granted on that 45. Kelly v. Owen, 7 WaU. 496 j ground. Headman v. Bose, 63 Ga. 458. 67 PEESON OF THE SPOUSE. § 45 giving a married woman leave to resume her maiden, name, goes into full effect, or widowhood is succeeded by a new marriage and another husband, she goes by her former husband's surname. This is English and American usage. And with this actual marriage name, it would appear that a wife can only obtain another name by reputation.^" But in consideration of the rule that a person has the right to 'be known by any name he or she chooses, proceedings under the assumed name of a married woman have been upheld after judgment.*^ § 45. Husband's Duty to render Support. This subject will be considered later in treating of the wife's necessaries, when it will also appear that our married women's acts tend to certain changes, not so much of principle as application, by extending the liability for family supplies to property such as wives now hold to their separate use. The general rule of law is that the husband, the spouse who holds and fills the purse, is bound to provide the family support and means of living. The style of support requisite — of lodging, food, clothing, and the like — is such as befits his means and condition of life. A wife is not usually justified in leaving her husband and the common home so long as the husband treats her kindly, and provides to the extent of his ability, even though retrenchment in the style of living may be needful from one cause or another.*' 'So reducing the wife's comforts needlessly, and from sinister motives, she may justly complain of.** The common-law duty to support a wife cannot be extended ex- cept by express statute, plainly so intended,'^" and the wife cannot bind herself by a release of her right to support.°^ A husband must furnish his wife with reasonable support whether she is able to support herself or not^^ if he is able to do 46. Pendall v. Goldsmied, 2 P. D. Wis. 66, 103 N. W. 261, 69 L. E. A. 263; Carroll v. State, 53 Neb. 431, 73 829. N. W. 939; EatclifEe v. McDonald, 51. In re Ryan's Estate, 134 Wis.. 123 Va. 97, 97 S. B. 307. 431, 114 N. W. 820; /rere Simonaon'a 47. Clark v. Clark, 19 Kan. 523. Estate, 164 Wis. 590, 160 N. W. 1040^ 48. See Skean v. Skean, 33 N. J. 52. The duty of the husband to pro- Eq. 148. vide for the wife is a public and 49. Boyce v. Boyce, 23 N. J. Eq. moral duty, as well as a duty by con- 337. And see Necessaries, post; also tract. Clisby v. Clisby, 160 Ala. 572, Divorce for Desertion, Cruelty, etc. 49 So. 445; Ortman v. Ortman, — 50. Eichardson v. Stuesser, 125 Ala. — , 82 So. 417; McKee v. Cun- ningham, 2 Cal. App. 684, 84 P. 260. § 45 HUSBAND AND WIFE. so.°* His lack of means may excuse him temporarily/* The fact that she was unchaste hefbre marriage does not affect the duty.^' iN'or is he relieved by the fact that she is quarrelsome after mar- riage/® He must do the same for the rest of his family/^ The nature of the support must be in keeping with his station and circumstances'^ and is usually to be furnished at the matri- monial domicile selected by him/' He may be obliged to support his wife at some other place where he refuses to do so at the domi- cile, or where they live apart by his consent"" or where she leaves him because of his cruelty'^ or for other justifiable cause/^ The Kessler v. Kessler, 2 Cal. App. 509, 83 P. 257. A wife's right of main- tenance is within the protection of Civ. Code, § 3439', making transfers to delay or defraud creditors void as against them. Title Ins. & Trust Co. V. IngersoU, 158 Cal. 474, 111 P. 360; Poole V. People, 24 Col. 510, 52 P. 1025, 65 Am. St. Kep. 245'; Pa- quin, Limited, v. Westervelt, — Conn. — , 106 A. 766; American Mill. Co. V. Industrial Board of Illinois, 279 111. 560, 117 N. E. 147; H. G. Goelitz Co. v. Industrial Board of Illinois, 278 111. 164, 115 N. E. 855; Brown v. Moudy, 199 111. App. 85; In re Carroll, — Ind. App. — , 116 N. E. 844; Kemp v. Kemp, — La. — , 81 So. 221; Boehm v. Boehm, — N. J. Ch. — , 101 A. 423; Feiner V. Boynton, 73 N. J. Law, 136, 62 A. 420; Ball v. Lovett, 98 N. T. S. 815 ; Jones v. Bernstein, 177 N. Y. S. 155; Stevens v. Hush, 176 N. T. S. 602; Finkelstein v. Pinkelstein, 161 N. Y. S. 166, 174 App. Div. 416; Taylor v. Taylor, 54 Ore. 560, 103 P. 524 ; Kneeht v. Knecht, — Pa. — , 104 A. 676; In re Kvist's Estate, 256 Pa. 30, lOO A. 523 : Merriam v. Mer- riam, 75 Wash. 389, 134 P. 1058. Where there is no relation that legally imposes the duty of the wife's main- tenance on the husband, the law gives no power to make him maintain her. Chapman v. Parsons, 66 W. Va. 307, 66 S. E. 461; Clifton v. Clifton, — W. Va. — , 98 8. E. 72. 53. McCaddin v. McCaddin, 116 Md. 567, 82 A. 554, 54. Purth V. Purth (N. J.), 39 A. 128. 55. Slate v. Hill, 161 la. 279, 142 N. W. 231. 56. Irwin v. Irwin, — N. J. — , 103 A. 1052, 103 A. 440. 57. Carey v. Carey, 8 App. D. C. 528. 58. De Brauwere v. De Brauwere, 203 N. Y. 460, 96 N. E. 722, af- firming order 129 N. Y. S. 587, 144 App. Div. 521, which af&rms judg- ment (1910), 126 N. Y. S. 221, 69 Misc. Kep. 472; State v. McPherson, 72 Wash. 371, 130 P. 481. 59. In re Baurens, 117 La. 136, 41 So. 442; State v. Baurens, Id. 60. MeKee v. Cunningham, 3 Cal. App. 684, 84 P. 360. By express stat- ute in California a husband is not liable for the support of his wife when she is living separate from him by agreement. Barefoot v. Barefoot, 83 N. J. Eq. 685, 93 A. 193 ; Clothier V. Sigle, 73 N. J. La,w, 419, 63 A. 865; W. & J. Sloane v. Boyer, 95 N. Y. S. 531; Bichardson v. Steusser, 125 Wis. 66, 103 N. W. 261. 61. State V. Baurens, 117 La. 136, 41 So. 442; Eandall v. Randall, 37 Mich. 563. 62. Kientz v. Kientz, 104 Ark. 381, 149 S. W. 86; Baker v. Oughton, 130 la. 35, 106 N. W. 372; Appeal of Brookland Bank, — S. C. — , 100 8. E. 156. 69 PERSON OF THE SPOUSE, § 46 facts raising such a duty must, however, appear affirmatively/'' To relieve him of the duty of supporting the wife while living apart from him, his notice that he will not be responsible for her debts must appear to have been actually known to the person fur- nishing the support.®* The duty is not conditioned on her living with and making a home for him,°° and where a husband is first guilty of adultry, her subsequent adultery will not relieve him of the duty.'® Where she leaves him without justifiable cause, he is relieved of the duty.'^ By statute in California a husband need not support a wife who leaves him without justifiable cause.®* Statutes sometimes make the wife liable to third persons for family necessaries.®" A statute which renders void an assignment of future wages as security for a small loan unless recorded and assented to by the wife interferes with the rights of the parties but is constitutional as an exercise of the police power to protect the wife in her right of support.''* § 46. Criminal Liability for failure to Support. It is now universally provided by statute that a husband who fails in his duty to support his wife and family is criminally liable and criminal prosecution with recognizance is found to aid the common law in compelling a competent husband to support his f amily.^"^ It has been held, where a husband was prosecuted on his recog- nizance, that if he offered to support his wife and children in his father's house, having no other house, and no means of his own, and she refused to go there on the ground that the father was in- 63. Hass V. Brady, 96 N. T. S. 449, v. Pearson, 176 N. Y. S. 636 ; Pearson 49 Misc. Eep. 235; Hass v. Brady, v. Pearson, 173 N. T. S. 563; Wirth 96 N. Y. S. 449, 49 Miae. Rep. 235. v. Wirth, 172 N. Y. S. 309. 64. W. & J. Sloane v. Boyer, 95 68. Kessler v. Kessler, Z Cal. App. N. Y. S. 531. 509, 83 P. 257. 65. Sturm v. Sturm, 141 N. Y. S. 61, 69. Perkins v. Morgan, 36 Col. 360, 50 Mise. Eep. 277. 85 P. 640; Taylor v. Taylor, 54 Ore. 66. People v. Shrady, 58 N. Y. S. 560, 103 P. 524. 143, 40 App. Div. 460, 14 N. Cr. E. 70. Mutual Loan Co. v. Martell, 200 149. Mass. 48'2, 86 N*. E. 916, 43 L. E. A. 67. State v. Newman, 91 Conn. 6, (N. S.) 746. 98 A. 346; State v. Hill, 161 la. 71. See Commonwealth v. Jones, 90 279, 142 N. W. 231; Isaacs v. Isaacs, Penn. St. 431; People v. Bartholf, 31 71 Neb. 537, 99 N. W. 268; Pearson N. Y. Supr. 272. § 46 HUSBAND AND WIFE. 70 temperate and abusive, lie could not be held liable for neglecting to support her J^ Modem criminal statutes punishing a husband for failure to support his wife have been commonly upheld and it is held for example that the obligation of the husband to support the wife is not a debt within a constitutional provision forbidding imprison- ment for debt. Society as a whole is interested that families be supported and the penalty is for the husband's failure to obey society's law, made for society's subsistence, and'^ hard labor in the penitentiary is not such cruel or unusual punishment as to render a statute unconstitutional which provides it as a penalty for failure to support the wife.'* But a statute is void as ex post facto which makes desertion and abandonment of the wife without pro- vision for support a felony, when applied to a case where the abandonment occurred before the enactment of the statute although the failure to support continued till the time of bringing the action since the statute required both abandonment and nonsupport and was ex post facto as to the abandonment which occurred before the statute was enacted.''^ Application for support of a wife under a statute providing that support shall be given when the wife is " in necessitous circum- stances " means that support shall be given when the wife is lack- ing in those things proper to her condition in life. It is not limited to the bare necessities of food, clothing and shelter, as in a poor statute, but includes such articles of food, wearing apparel and use, such medicines, means for education of children and such social protection and opportunity as comport with the health, comfort and well-being of human beings according to present standards of civilization considering the husband's own means, earning capacity and station in life.'" Where a husband leaves his wife and family to find a home for them in another State which he does and they join him there and live together until a quarrel, when the wife returns to the former State with the family he cannot be extradited from the State of his present residence to answer a charge of non-support in the 72. People v. Pettit, 74 N. T. 320. 75. People v. Albright, 161 Mich. 73. State v. English — S. C. — , 400, 12-6 N. W. 432. 85 S. E. 721, L. E. A. 1915 P. 977. 76. State v. Waller, 90 Kan. 829, 74. State v. Gillmore, 88 Kan. 835, 136 Pae. 215, 49 L. E. A. (N. S.) 129 Pac. 1123, 47 L. E. A. (N. S.) 588. ai7 Yl PEBSON OF THE SPOUSE. § 47 other State, where Ms wife now resides.'"^ He committed no crime whatever in that State and it is now settled that no extradition will be allowed unless guilt was incurred in the State which asks for extradition,'* but where the husband deserts the wife and re- moves his domicile to another State and returns to the first State to be a witness he may be there arrested on a warrant charging non-support in the first State under a statute passed since he left it. He can be tried for failure to support her in the place where he deserted her following the general rale that the husband is properly tried in the jurisdiction where the wife becomes de- pendent, regardless of his non-residence, for that is the place where the duty of support should be discharged, and consequently the the proceeds of a beneficiary insurance policy as a dependent.'" A woman who marries a man knowing that he has a wife living cannot claim to be dependent on him for support as he is under no legal duty to support her and so she cannot claim to be entitled to the proceeds of a beneficiary insurance policy as a dependent.*" A conviction for abandonment of the wife constitutes a bar to a later conviction for the same offense, but where the offense de- scribed in the statute is failure to maintain the wife a prior con- yiction and sentence is no bar to another conviction for later fail- ing to maintain her. The later neglect and refusal after he had served his former sentence constitutes a new, separate and distinct violation of the statute.*^ § 47. Wife's Duty to render Services. The wife's obligation to render family services is at least co- extensive with that of the husband to support her in the family, these services and the comfort of her society being in fact the legal equivalent of such support.*^ Hence, as it is held, the wife of an insane man cannot claim special compensation out of his estate for taking care of him, even though such were the express contract between herself and the guardian.'* Doubtless it would 77. Taft V. Lord, 92 Conn. 539, 108 E. A., 262 111. 475, 104 N. E. 801, 51 Atl. 644, li. R. A. 1918 E. 545. L. E. A. (N. S.) 736. 78. Straissheim v. Daily, 231 U. S. 81. State v. Morgan, — la. — , 280, 31 Sup. Ct. Eep. 558. 136 N. W. 531, 40 L. E. A. (N. S.) 79. State v. Gillmore, 88 Kan. 835, 615. 129 Pae. 1123, 47 L. E. A. (N. 8.) 82. Eandall v. Eandall, 37 Mieh. 217. 563, per Cooley, J.; Grant v. Green, 80. Duenser v. Supreme Council of 41 la. 88. 83. Grant v. Green, 41 la. 88. § 48 HUSBAND AND WIFE. 72 be bad policy to permit marital services on either side, however meritorious, to become a matter for money recompense, and to strike a just balance is impossible. Services rendered by a wife in the home of ber husband to a lodger residing with them, even though they consist largely of the personal attendance of the wife, and include the nursing of the lodger when sick, are within the range of her domestic duties and without an express contract or promise made by the lodger to the wife, the latter cannot maintain an action against him for the re- covery of compensation for such services. The implied contract which the law raises in such a case is that the person to whom such services are rendered will make reasonable compensation therefor to the husband and not to the wife.** § 48. Right of Chastisement and Correction. Though either spouse may be the more dangerous companion, because of greater physique, daring, recklessness, or depravity, nature gives the husband the usual advantage. In a ruder state of society the husband frequently maintained his authority by force. The old common law recognized the right of moderate cor- rection, which, according to Blackstone, was deemed a privilege by the lower orders in his day.** The civil law went still further, per- mitting, in certain gross misdemeanors, violent flogging with whips and rods.*" But since the time of Charles II. the wife has been regarded more as the companion of her husband ; and this right of chastisement may be regarded as exceedingly questionable at the present day. The rule of persuasion has superseded the rule of force. Few cases of importance are to be found on this subject. In England, where a wife sought divorce from bed and board for cruelty, it was shown that the husband had spit upon her, pushed and dragged her about the room, and once slapped her face ; and upon this proof the divorce was granted." The right to inflict 84. Stevenson v. Akarman, 83 N. J. ably belongs to her husband for the L. 458, 85 Atl. 166, 46 L. E. A. purpose of the government and chas- (N. S.) 238. tisement of his veife lawfully." 85. 1 Bl. Com. 444, 445. In Adams 86. Flagellis et fustibus acriter v. Adams, 100 Mass. 365, Chapman, verlerare uxor*m. See 1 Bl. Com. C. J., states the old form of the v^rit 445. of supplicamt for protection of the 87. Saunders v. Saunders, 1 Eob. •wife against her husband; viz., that Ec. 549. And see Divorce for Cruelty, the husband should not do other dam- etc., post, Vol. II. age to her person "than what reason- 73 PEKSON OK THE SPOUSE. ' § 49 corporal punishment upon the wife has never been favored in this country, and its exercise would now generally justify proceedings for a divorce. Indeed, our decisions emphatically deny that the right longer exists either in England or this country.** It may be added that the wife should not chastise her husband ; nor provoke harsh treatment by her own violence, foul abuse, and misconduct.*' But either spouse may use force in self-defense. And the hus- band may restrain his wife from acts of violence against others as well as himself in person or property, — most certainly wherever the law makes him answerable in damages for her misbehavior,"" and may prevent her unwarrantaible interference with the due ex- ercise of his parental authority.*^ § 49. Husband's Right of Gentle Restraint. The right of gentle restraint over the wife's person rests upon better authority than that of chastisement. This right, however, depends upon the proposition that the husband is dignior persona. And its exercise is often to be justified in the courts on the same grounds ; namely, that the husband must answer to others for his wife's conduct. Blackstone says that in case of any gross misbe- havior the husband can restrain his wife of her liberty. The later 88. Johnson v. Johnson, 201 Ala. Pearman, 1 Swab. & T. 601. It is a 41, 77 So. 335; Lawson v. State, 115 crimmal offence to imprison or beat Ga. 578, 41 8. E. 9»3; Carpenter v. her (Brown v. Brown, &9 Conn. 42, Commonwealth, 92 Ky. 452, 18 S. W. 89 A. 889), but he cannot be eom- 9, 13 Ky. Law Eep. (abstract) 998 ; pelled to give bond not to illtreat her, McKay v. McKay (Mo.), 182 S. W. except under statute. Bread's Case, 184 (helpless if her husband keeps 3 Bland (Md.) 562, n. her in a place where he has withdrawn 89. Knight v. Knight, 31 la. 451, all care and protection from her and and cases supra; Prichard v. Prichard allows her to suffer gross indignities) ; 3 Swab. & T. 523 ; Trowbridge v. Car- Jones V. Jones, 173 N. C. 279, 91 S.E. lin, 12 La. Ann. 882. 960; Gholston v. Gholaton, 31 Geo. 90. 2 Kent, Com. 181; People v. 625; Pillar v. PiUar, 23 Wis. 658; Winters, 2 Parker (N. Y. Cr.), 10; Edmonds' Appeal, 57 Penn. St. 232; 1 Bl. Com. 445; Biehards v. Bichards, Fulgham v. State, 46 Ala. 143 ; Owen 1 Grant, 3«9. V. State, 7 Tex. App. 329; Gorman 91. A husband has the right to use V. State, 42 Tex. 221. In State v. physical force to put his wife from Rhodes, 1 Phill. (N. C.) 453, the right the room, when she interferes with of moderate correction was claimed, his training of their child, the right But the opposite rule is announced in of gentle restraint where she clings to the later case of State v. Oliver, 70 him and screams and the right of N. C. 60. Corporal chastisement la using force necessary for self-defence, not justified, though the wife be Barber v. Barber, 153 N. Y. S. 256, drunk or insolent. Commonwealth v. 168 App. Div. 312. McAfee, 108 Mass. 458; Pearman v. § 49 HUSBAI^D AND WIFE. 74 expression of Kent is that he may resort to " gentle restraint."*^ Strong instances for the exercise of this right occur where the wife has eloped with a libertine, and the husband wishes to bring her home; or where she purposes an elopement, and he seeks to prevent it; or, perhaps, where she goes recklessly into lewd com- pany.'* Restraint may also be justified where the wife becomes insane, threatens the husband with danger, or wantonly destroys the property.'* So, too, the husband, by virtue of his marital au- thority over his own household, might be allowed, if not by physical force, at least by moral coercion, to regulate her movements so as to prevent her from going to places, associating with people, or engaging in pursuits, disapproved by himself on rational grounds, This doctrine has been asserted in England; and Mr. Fraser carries it to the extent of forbidding her relatives to visit her; " for," he observes, " though the wife may be very amiable, her connections may not be so."°° But this rule is to be laid down with great caution, and it may be considered especially unpopular in America. Mr. Justice Coleridge, in an English case, observes that the husband's right must not be exercised unnecessarily or with undue severity; and that the moment the wife, by her return to conjugal duties, makes the restraint of her person unnecessary, such restraint becomes unlawful.'* Our modem doctrine is that force, whether physical or moral, systematically exerted to compel the submission of a wife in such a manner, and to such a degree, and during such a length of time, as to injure her health and threaten disease is legal cruelty." A husband has no right over the protest of the occupant to enter the house of another for the purpose of talking with his wife who has taken refuge there and of persuading her to return to him. Any person has a right to defend his home against intrusion even to homicide, if necessary, to accomplish the purpose of defence. 92. 2 Kent, Com. 181, 1 Bl. Com. 6 Ire. 164. And see 1 Bish., Mar. & 445. Div., § 756. 93. So strongly does the common 95. 1 Fras. Dom. Eel. 459. This ob- law detest conjugal unfaithfulness, servation was made by Lord Stowell that the husband -who kills his wife or in Waring v. Waring, 2 Hag. Con. her paramour in the act of adultery 153; 1 Eng. Be. 210. is only guilty of manslaughter. See 96. Cochrane, in re, 8 Dowl. P. C. 631. Begina v. Kelly, 2 Car. & K. 814. 94. Mr. Lifter's Cafe, 8 Mod. Pitt V. Coney, 1 Stra. 477; Price re, a Fost. & P. 263 ; State v. Craton, See Divorce for Cruelty, post, Vol. II. 94. Mr. Lifter's Cafe, 8 Mod. 22; 97. Kelly v. Kelly, L. E. 2 P. & D. Pitt V. Coney, 1 Stra. 477; Price, in 31; Bailey v. Bailey, 97 Mass. 373. 75 PEESON or THE SPOUSE. § 51 The person of the wife is as sacred now as the husband's and the husband has no right against her will to control her move- ment-s.°' § 50. Wife's Right to Submit to Surgical Operation. A wife in full possession of her faculties is as much entitled, both morally and legally, to determine whether she shall submit herself to an operation as is the husband in respect to an operation on himself, and where she consents to an operation which is skill- fully performed, the surgeon is not liable to the husband in dam- ages. The husband has no power to withhold from the wife the medical assistance that the case may require. The consent of the wife and not of the husband is necessary. °* § 51. Right of Action for Death. Statutes giving a right of action for death being in derogation of the commojQ law should be strictly construed and will not be held to apply to the surviving spouse unless expressly named.^ A statute giving a right of action for death should be strictly construed as to the class of persons covered by it and a statute re- ferring to men, their widows or children and then amended by other provisions in general terms referring to persons does not give a right of action to the children of a woman for her death.^ Damages may be assessed against one who has negligently caused the death of a husband and father although the wife and child did not know where he was at the time of his death and he had de- serted them and had never supported them. The jury should be allowed to assess the loss of support and it cannot be presumed that the wife would never find the husband and force him to support her. The question will be, what if any sum might the widow and child be expected reasonably to receive from the deceased and this question should be submitted to the jury.* 98. BaUey v. People, — Col. — , 130 — , 163 Pac. 193, L. E. A. 1917D 1084. Pac. 832, 45 L. E. A. (N. S.) 145. A hwiand of a woman who left 99. Burroughs v. Crichton, 48 D. C. children by a former nMrriage may re- App. 596, 67 Wash. Law Eep. 283, 4 cover for her death. Crown "William- A. L. E. 1539. ette Paper Co. v. Newport, 260 Fed. 1. Flash V. Louisana Western E. 110. Co., 137 La. 353, 68 So. 636, L. E. A. 3. IngersoU v. Detroit & Mackinac 1916E 112. E. Co., 163 Mich. 268, 128 N. W. 221, 2. Whittlesey v. Seattle, — Wash. 32 L. E. A. (N. S.) 362. § 52 HUSBAJSTD AND WIFE. 76 § 52. Regulation of Household, Visitors, &c. From the coinmoii-law relation of husband and wife it follows, as our last section indicates, that the general regulation of a house- hold is the privilege of the husband, who is its lawful head. The wife in this respect is to be viewed as his representative or execu- tive officer, properly entrusted with domestic details, and particu- larly with the supervision of female menials and their work. Hus- bands are sometimes blameworthy in the course of such regulation for pettiness, meanness, and inconsiderateness towards their wives. And yet households differ, and legal cruelty cannot readily be predi- cated of such conduct further than that in divorce suits misbehavior of this kind is frequently alleged in aggravation of actual cruelty otherwise practised, and so as to give body to the latter charge. It cannot be called cruelty or a breach of marital duty justifying legal interference, for a married householder, however large his es- tablishment, to take the settlement of the little bills upon himself,* or the hiring and discharging of the servants. As to the question how far the wife is bound to observe the hus- band's directions in entertainment, the choice of visitors, the ar- rangement of the rooms, and so on, the English rule is still strict ; or, rather, permissive of the husband's sway. The wife is expected to conform to her husband's habits and tastes, even to his eccen- tricities, provided her health be not seriously endangered by so do- ing. And though he should restrict the calling list to a certain set agreeable to himself alone, or interdict intercourse with her family, or prevent her from paying a visit to his own relatives, all of which we may well presume to be unkind and unreasonable, yet this alone is not sufficient ground for divorce.^ Nor, as it has been held in this country, would divorce be granted simply because he had forbade her to attend a particular church of which she was a member.* Modern American precedent, however, on all these points is quite scanty. And whether the husband can allege mis- conduct against his wife, or obtain redress on his part if she rebels against oppressive discipline of this kind, is extremely doubtful. Whims and caprices of the husband, submission to which endangers the wife's health, need not be followed, and may even be relieved 4. Evans v. Evans, 1 Hag. Con. 35, 153 ; Shaw v. Shaw, 17 Conn. 189 ; Ful- 115. ton V. Fulton, 36 Miss. 517. 5. Neeld v. Neeld, 4 Hag. Ee. 263 ; 6. Lawrence v. Lawrence, 3 Paige, D'Aguilar v. D'Aguilar, 1 Hag. Ec. 267. 773; Waring v. Waring, 2 Hag. Con. 77 PEESOW OF THE SPOUSE. § 54 against as legal cruelty;' and perhaps the former should be said of constraint upon religious worship as the worshipper's con- science dictates ; for the husband's right to manage his house and wife must doubtless be understood to have rational limits. § 53. Custody of Children. The custody of children belonged at common law to the father. Blackstone observes : " A mother, as such, is entitled to no power, but only to reverence and respect." But by an English statute, passed in 1839, the court of chancery is permitted to interfere and award the custody of children to such parents as may be deemed most suitable. Its special object was to enable married women who should be ill-treated by their husbands to assert their rights without fear of being separated from their offspring.* In this country the tendency of legislation is to place the wife upon an equal footing with her husband in this respect, so that husband and wife together shall have in their children a joint interest and control, which the courts are to regard as distinct only when the welfare of these tender beings makes judicial intervention neces- sary.* § 54. Remedies of Spouses against one another for Breach of Matrimonial Obligations. As no legal process can safely be enforced to compel husband and wife to live together, against the will of either, so the peace of so- ciety forbids that they should sue one another for damages for breach of the marital obligations. Here again is marriage su,i generis, and not like other contracts. But the failure of the one to perform recognized duties may sometimes absolve the other from certain corresponding obligations. Thus, if the wife leaves her home without justifiable cause, the husband may refuse to sup- port her.^" If the husband is cruel, or makes his home unfit for a chaste woman to live in (which is a species of cruelty), the wife may leave and compel him to support her elsewhere.^^ This is well-recognized law. In general, however, such violation of marital 7. Kelly v. Kelly, L. R. 2 P. & D. 9. See Divorce, post, Vol. II. 31; 1 Bish., § 758. 10. Kent, Com. 147; Manby v. Seott, 8. 3 & 3 Vict. c. 54 ; Warde v. 1 Mod. 124 ; 1 Bl. Com. 443. Warde, 2 Ph. 786. See post. Parent 11. Honliston v. Smyth, 3 Bing. 127. and Child, § 740 et seq. And see post, as to wife's necessaries. § 54 HUSBAND AND WIFE. 78 obligations is effectually punisheable, not by enforcing them, as in the old English suit for restitution of conjugal rights, which is not recognized in the United States, but by putting an end to the relation altogether,^^ And it is in the modern proceedings for divorce that we now find the subject of marital obligations most fre- quently discussed, with, however, a bias towards the construction of the divorce statutes themselves. Husband and wife may be indicted for assault and battery upon each other. ^' This is a means of redress not unfrequently sought against cruel husbands, especially among those of low surround- ings, where drunkenness is common, and religion treats divorce for cruelty with disfavor; and a husband who beats his wife inex- cusably may be convicted of this offence.^* So, too, the offending spouse may be bound to keep the peace. For unreasonable and improper checks upon her liberties, the wife may have relief on habeas corpus. But the writ is not available for the husband to secure the person of his wife, voluntarily absenting herself from his house. ^*. 12. See 1 Bish. Mar. & Div., § 771 ; sault and battery. State v. Oliver, 70 1 Fras. Dom. Eel. 452; Adams v. N. C. 60. But in. the State trivial Adams, 100 Mass. 365; Briggs v. complaints are not favored. And a Briggs, 20 Mich. 34; Divorce, post. sentence to imprisonment for five 13. Bradley v. State, Walker, 156 ; years in an aggravated ease was lately State V. Mabrey, 64 N. C. 592 ; Whipp considered a "cruel and unusual" V. State, 34 Ohio St. 87. punishment. State v. Driver, 78 N. C. 14. In North Carolina, where the 423. right to moderately chastise has been 15. Sandiland, Ex parte, 12 E. L. & so reluctantly yielded, it is admitted Eq. 463. See Adams v. Adams, 100 that if the circumstances involve Mass. 365, as to the old writ of sup- malice, cruelty, or the infliction of per- plicavit formerly issued for protection manent injury upon the wife, the hus- of the wife against her husband, band may properly be convicted of as- 79 SPOUSE AS CEIMINAL. § 56 CHAPTEE III. THE SPOUSE AS A CEIMINAX. Section 55. Coverture affecting Private Wrongs and Public Wrongs. 56. Presumption of Husband's Coercion and Wife's Innocence. 57. Presumption of Wife's Innocence Applied. 58. Coercion may extend to a Series of Crimes. 59. Offences against the Property of either Spouse. 60. Adultery. 61. Separate Penalties for Women. § 55. Coverture Affecting Private Wrongs and Public Wrongs. We shall find the doctrine of coverture affecting the liability of a married woman for her fraud or injury, so that her husband must respond to others in damages for her.^® But here the private wrong and the public wrong stand contrasted. The immunity of the wife does not extend to criminal prosecutions. For, as Black- stone observes, the union is only a civil union. ^' Or, to come more to the point, it would be cruel and unjust to punish one person for the crime of another, or even to compel the two to bear the penalty together; while it would be impolitic, as well as unjust, to allow any relation which human beings, morally responsible, might sustain with one another to absolve either from public ac- countability. Here coverture as a theory contradicts itself, by leaving the wife answerable alone for her crimes, just as a single woman. The utmost the law can do is to furnish a presumption of innocence in her favor in cases where the coercion of her husband may be reasonably inferred. § 56. Presumption of Husband's Coercion and Wife's Innocence. This indulgence of presumed innocence, it is said, is carried so far as to excuse the wife from punishment for theft, burglary, or other civil offences " against the laws of society," when committed in the presence or by the command of her husband ; but not so as to exculpate the wife for moral offences. For mala prohihita she is not punished, for mala in se she is. Such a distinction is vari- able and somewhat shadowy; the line seems to be drawn more 18. See § 122, et seq., post. 17. 1 Bl. Com. 443. § 57 HUSBAND AND WIFE. 80 wisely, if at all, between such heinous crimes as murder and man- slaughter, and the lighter offences.^* At common law a wife was not guilty of crimes committed in her husband's presence, except treason or murder, but was guilty of those committed in his absence,^® as a crime committed by a wife in the husband's presence was prima facie presumed to be the result of his coercion.^" The presumption was weak, and slight evidence rebutted it.^^ The modern married women's acts, however, tend to give married women a separate entity for criminal as well as other purposes, and under such statutes a wife may be convicted of being an idle or disorderly person though supported by her husband or some other person,^" or may be guilty of maintaining a house of ill-fame though she lives in the house with her husband.^* A wife cannot be guilty of violating the North Carolina statute prohibiting aban- donment of crops on rented land before paying for advances made by the landlord, since the contract was void.''* But the mere presence of the wife when her paramour killed her husband when he interrupted them at a lover's meeting is not that aiding or abetting which is required to constitute guilt.^' § 57. Presumption of Wife's Innocence Applied. The presumption, therefore, that in the less heinous crimes com- mitted by the wife in her husband's presence, the wife acts under the husband's coercion, may in any case be repelled by suitable proof ; and when it is, the wife, as one acting sui juris, must be 18. 3 Kent, Com., 11th ed., 150; i Mass. 101, 71 N. E. 78; People v. Ey- Bl. Com. 28, 29, and Christian's notes; land, 3 N. Y. Cr. E. 441; Morton v. 1 Hawk. P. C. b. 1, eh. 1, § 9; 1 Kuss. State, — Tenm — , 209 S. W. 644; Z Crimes, 18-24. Kent, Com., 11th ed., 150; State v. 19. Nays v. Taylor, 13 S. D. 488, 81 Parkerson, 1 Strobh. 169 ; 1 Euss. N. W. 901; Morton v. State, — Tenn. Crimes, 32; Eex v. Martha Hughes, — , 209 S. W. 644. coram Thomson, B., Z Lew. C. C. 229 ; 20. Braxton v. State, — Ala. App. Uhl v. Commonwealth, 6 Gratt. 706; — , 82 So. 657;Trometer v. District of Wagener v. Bill, 19 Barb. 331; 1 Columbia, 24 App. D. C. 242 ; State v. Greenl. Ev., 10th ed., § 28. Harvey, 130 la. 394, 106 N. W. 938; 22. Commonwealth v. Tay, 170 Mass. Commonwealth v. Gannon, 97 Mass. 192, 48 N. E. 1085. 547; State v. Miller, 163 Mo. 253, 63 23. Hudson v. Jennings, 134 Ga. S. W. 693, 85 Am. St. Eep. 498 ; State 373, 67 S. E. 1037. V. Martini, — N. J. — , 78 A. 13 ; 24. State v. Eobinson, 143 N. C. 630, State V. Noell, 156 N. C. 648, 73 S. E. 56 S. E. 918. 21. Commonwealth v. Adams, 186 25. State v. Larkin, 350 Mo. 318, 590. 157 S. W. 600, 46 L. E. A. (N. 8.) 13. 81 SPOUSE AS CBIMINAL. § 57 held responsible for the wrong done by her in her husband's com- pany. This is the true rule. Husband and wife may, therefore, both be indicted and convicted of a crime where it appears that both were guilty of the offence and the wife was not coerced.^* In most of the latest cases where the wife is indicted, the presumption of coercion has been regarded as something to be easily rebutted,^^ especially in that numerous class of cases which relates to the illegal sale of liquors, a business in which married women fre- quently engage understandingly. And it has been held that an instruction giving the wife the benefit of the presumption in liquor prosecutions was properly refused."^ And where the crime is heinous, and the presence and command of the husband do not concur, a jury may readily find the wife independently guilty.^" A wife who committed larceny by her husband's bare command, when he was not present, has been held liable therefor;^" and our present tendency is to refuse exculpation to the wife unless the husband commanded and was near enough besides to exert his marital influence upon her participation in accomplishing the particular crime.^^ For an indictalble offence, not heinous, committed by his wife in his presence, and with his knowledge, the husband may presumably be found guilty.^^ But not, we may well conceive, where it is shown that he tried to prevent his wife from committing the crime. N^or is he liable where the act was done in his absence and apart from his marital influence; still less where it was done while he was away and contrary to his express instructions.^* And the husband is not liable criminally for her crimes unless he aids, te. Goldstein v. People, 83 N. T. Wis. 384. In People v. Wiight, 38 231; Mulvey v. State, 43 Ala. 316; Mieh. 744, where a wife, participating State V. Potter, 42 Vt. 49'5 ; People v. with her husband in a robbery, throt- Wright, 38 Mieh. 744 ; State v. Camp, tied the viotim and told him to keep 41. N. J. L. 306; Barker v. State, 64 still, while her husband and a eon- Tex. Cr. 106, 141 S. W. 520. federate rifled his pockets, a verdict of 27. See State v. Cleaves, 59 Me. 298 ; independent guilt against her was sus- Commonwealth v. Tryon, 99 Mass. tained. 443; Commonwealth v. Pratt, 126 30. Seller v. People, 77 N. T. 411. Mass. 462. 31. State v. Camp, 41 N. J. L. 306; 28. State v. Seahorn, 166 N. C. 373, State v. Potter, 42 Vt. 495; Common- 81 S. E. 687; Commonwealth V. Hand, wealth v. Lewis, 1 Met. 151; Com- 59 Pa. Super. Ct. S86. monwealth v. Peeney, 12 Allen, 560 ; 29. Presumption of coercion re- Commonwealth v .Munsey, 112 Mass. butted in a murder case, where wife ZST; Edwards v. State, 27 Ark. 493. had conspired with her husband to 32. Hensly v. State, 52 Ala. 10. commit robbery. Miller v. State, 25 33. State v. Baker, 71 Mo. 475. 6 § 59 HUSBAND AND WIFE. 82 procures or acquiesces in them/* But if the husband is so near his wife, when she commits the crime, that she is under his imme- diate influence for that ofFenoe, his coercion and guilt will be pre- sumed, though he is not actually present.*' The presumption did not apply where a house of ill-fame is kept in a house used and occupied by spouses jointly, in which case both are guilty.^* And a wife may be guilty of perjury while testify- ing in the presence of her husband.*' § 58. Coercion may extend to a Series of Crimes. In independent crimes so closely connected as stealing and re- ceiving stolen goods, our law does not readily prosecute the husband for the one offence and the wife for the other, since this would not consist with applying the rule of coercion. Thus, it is held that a wife cannot be convicted of feloniously receiving stolen goods from her husband.** Yet in a proper case both husband and wife might be prosecuted, whether this were for receiving stolen goods or for stealing.*" The husband's coercion may extend, therefore, to a series of crimes perpetrated by means of his wife's agency in pursuance of his own criminal design. Since at common law spouses were one person, they would not be guilty of conspiracy ; *° but the rule will not avail the wife as a defence to a prosecution for acts in execution of a conspiracy which are in themselves criminal.*' § 59. Offences against the Property of either Spouse. Public policy forbids that either spouse should molest the person of the other with impunity.*" But as to the property of a spouse our law pursues a distinction. Accordingly, it is well established that the wife cannot be found guilty of stealing the goods of her husband, inasmuch as she resides with him and has possession of 34. Lumpkin v. City of Atlanta, 9 L. E. 1 C. C. 80. As to stolen goods Ga. App. 470, 71 S. E. 755. concealed in a house occupied by both 35. Commonwealth v. Munsey, 112 husband and wife, see Perkins v. State, Mass. 287. 32 Tex. 109. 36. State v. Gill, 150 la. 210, 129 39. Goldstein v. People, 82 N. T. N. W. 821; Barker v. State, 64 Tex. 231. Cr. 106, 141 S. W. 529; State T. 40. Merrill v. Marshall, 113 HI. App. Jones, 53 W. Va. 613, 45 S. E. 916. 447. 37. Smith v. Meyers, 54 Neb. 1, 74 41. Jones v. Monson, 137 Wis. 478 N. W. 277. 119 N. W. 179. 38. Eegina v. Brooks, 14 E. L. & 42. See, e. g., as to remedies for as- Eq. 580. And see Eegina v. Eobinson, sault and battery, supra, § 54. 83 SPOUSE AS CRIMINAL. § 60 the goods by virtue of the marriage relation.*' And as to the hus- band, whose legal possession and control of his wife's property during wedlock is far stronger, it is held that, not even upon the ground that a certain building was his wife's separate property, can he be convicted of arson for setting it on fire.** There is much conflict as to the effect of modern statutes grant- ing women separate property, and it is sometimes held that such statutes make the husband liable to larceny of his wife's personal property. In a recent case, however, the wife was held not liable to prosecution for larceny under statutes defining the separate property of husband and wife. The court remarks that statutes abrogating the common law must be strictly construed, and that in the married women's acts no such intent to consider this question appears.*^ § 60. Adultery. The wife's immunity from prosecution for larceny from her husband applies whether she has been guilty of adultery or not.*® Therefore, it is held that the adulterer who receives from the wife her husband's goods is not guilty of receiving stolen goods.*' But where the actual or intended adulterer, or, as we may suppose, any person with a guilty purpose, aids the wife in carrying away her husband's goods, or removes them himself, he may be indicted for the larceny.** Not even an adulterer is to be deemed guilty of larceny for merely assisting the adulteress in carrying away her necessary wearing apparel *^ or separate property. A spouse who starts a prosecution for adultery of the other spouse has no absolute right to discontinue it, as this would open wide the door to blackmail, and such a prosecution once begun becomes a public concern, even under a statute providing that only the spouse can institute such a prosecution.^" Illicit cohabitation by a man and woman not married to each 43. Queen v. Kenny, 3 Q. B. D. 307 ; 46. Queen v. Kenny, 3 Q. B. D. 307, Lamphier v. State, 70 Ind. 317. and cases cited. 44. Snyder v. People, 36 Mich. 106. 47. Ih. Compare State v. Banks, 48 45. Hunt V. State, 73 Ark. 341, 79 Ind. 197. S. W. 768, 65 L. E. A. 71; Beasley v. 48. Queen v. Kenny, 3 Q. B. D. 307. State, 138 Ind. 553, 38 N. E. 35, 46 49. State v. Banks, 48 Ind. 197, per Am. St. Rep. 418; contra, Snyder v. Buskirk, C. J. People, 3i6 Mich. 106, IS Am. Eep. 50. State v. Astin, — Wash. — , 180 303 ; State v. Phillips, 95 Ohio St. 317, Pac. 394, 4 A. L. E. 1335. See, how- 97 N. E. 976, 40 L. E. A. (N. S.) 142. ever, People v. Dalrymple, 55 Mich. 519, 22 N. W. 20. § 61 HUSBAND AND WIFE. 84 other, but with no public acts of indecency, was not a crime at common law,°^ but is commonly made so by statute in this country. Under such a statute an indictment for unlawful cohabitation need not contain the charge that the acts were " openly, notoriously and scandalously " committed, where it does set out that they were done within the common knowledge of the neighbors and of persons passing and repassing in the street. Under such circumstances they must have been done " openly and notoriously." °^ § 61. Separate Penalties for Women. The modem humane tendency towards studying the needs of the criminal, and trying to reform rather than punish him, has found expression in statutes in many States providing separate and dis- tinct punishments and places of incarceration for men and women. In a recent case it was held that it is not a denial of the equal protection of the laws guaranteed by the constitution to send a woman to a Farm for Women instead of to the State penitentiary. The legislature, as well as the executive and judicial branches, has a right to individualize among criminals. °* 51. Com. v. Isaacs, 5 Rand. (Va.) 171 S. W. 1006, L. E. A. 19160 651. 634; State v. Moore, 1 Swan (Tenn.) 53. State v. Heitman, 105 Kan. 139, 136. 181 Pac. 630. See 33 Harvard Law 52. Adams v. Comm., 16a Ky. 76, Review, 449. 85 AS WITNESSES. § 62 CHAPTEE IV. DISQUALIFICATIONS AS WITNESSES. Section 62. Mutual Disqualifications as Witnesses. 63. Eule restricted to Bona Fide Spouses. 64. Common-law Exceptions. 65. Crimes or Injuries Inflicted by one on the other. 66. Adultery. 67. Joint Defendants. 68. Ses Gestae or Agency. 69. Before or After Termination of the Eelation. 70. Confidential Communications. 71. Interest of Witness. ^ 62. Mutual Disqualification as Witnesses. One of the most important of the mutual disabilities of the mar- riage state is the disqualification of hushand and wife to testify as witnesses in the courts for or against one another, Blackstone places this prohibition on a technical ground, — unity of the per- son; for, he says, if they testify in behalf of one another, they contradict the maxim, " Nemo propria causa testis esse debet; " and, if against one another, that other maxim, " Nemo tenetur se ipsum accusare." °* He also suggests interest as another ground for the rule, and this doubtless is a good one. But a more solid reason than either is that of public policy. " The happiness of the married state," says Mr. Greenleaf, " requires that there should be the most unlimited confidence between husband and wife ; and this confidence the law secures, by providing that it shall be kept forever inviolable ; that nothing shall be extracted from the bosom of the wife which was confided there by the husband." "^ So unyielding is this rule, that mutual consent will not authorize the breach of it.^' Whether the suit be civil or criminal, in law or at equity, it matters not. Form yields to substance in procedure, for the sake of excluding such testimony. And after coverture has 54. 1 Bl. Com. 443. 56. 1 Greenl. Evid., § 340, and cases 55. 1 Greenl. Evid., § 254. See also cited; Lord Hardwieke, in Barker v. a Kent, Com. 178-180, to the same ef- Dixie, Cas. temp. Hardw. 264; Davis feet. But apparently Chapman, J., in v. Dinwoody, 4 T. E. 679, per Lord Peaslee v. McLoon, 16 Gray, 488, pre- Kenyon; contra, Pedley v. Wellesley, fers to consider that interest, more 3 Car. & P. 558 ; 2 Kent, Com. 179. than policy determined the question at common law. § 63 HUSBAND AND WIFE. 86 terminated by death or divorce, still the prohibition lasts as to all which took place while the relation existed/^ The disability of the husband is in this respect as great as that of the wife.'' So far, indeed, has the prohibition been carried, that in one case, where the defendant married a witness after she had been summoned into court, she was forbidden to testify.°° The rule applies alike to evidence of declarations made by husband and wife for or against one another and to their testimony in person.*" 'Nor is a wife a competent attesting witness to a will which contains a devise to her husband ; °^ nor one claiming, as widow, the right to admin- ister, competent to establish her marriage.'^ Not are the spouses at common law competent witnesses for or against one another in a suit for divorce on the ground of adultery, nor in proceedings for bigamy against one of them."* And it is said that the law guards the marital confidence of silence as well as that of com- § 63. Rule Restricted to Bona Fide Spouses. This rule of exclusion applies only to persons occupying the bona fide relation of husband and wife ; not, of course, to a mistress, or parties in immoral cohabitation. But at the same time the courts lean kindly towards prima facie marriages, and make no rigid investigation.** The policy of the rule is evidently to treat as 57. Monroe v. Twistletou, cited in 60. 1 Greenl. Evid., § 341; Alban v. Averson v. Lord Kinnaird, 6 East, Pritehett, 6 T. E. 680; Denn v. White, 193; Doker v. Hasler, Ey. & M. 198; 7 T. E. 112; Kelly v. Small, 2 Esp. Stein V. Bowman, 13 Pet. 223; 1 716; Brown v. Wood, 121 Mass. 137. Greenl. Evid., § 337. See also Terry See Cook v. Burton, 5 Bush, 64, as to V. Belcher, 1 Bailey, 568; State v. proof by strangers. Jolly, 3 Dev. & Bat. 110 ; Grose v. Eut- 61. Sullivan v. Sullivan, 106 Mass. ledge, 81 111. 266; Wood v. Shurtleff, 474. The Massachusetts rule is con- 46 Vt. 525 ; Barnes v. Camac, 1 Barb. trary to that of New York and Maine. 392. But see Dickerman v. Graves, 6 See authorities cited in this case. Gush. 308. 62. Eedgrave v. Eedgrave, 38 Md. 58. See cases cited in 1 Greenl. Evid., 93. § 334. And see Turner v. Cook, 36 63. Marsh v. Marsh, 29 N. J. Eq. Ind. 129; Eiehards v. Burden, 31 396 ; Finn v. Finn, Iff N. Y. Supr. 339 ; la. 305; Eea v. Tucker, 51 HI. 110; People v. Houghton, 31 N. Y. Supr. Succession of Wade, 21 La. Ann. 343. 501. But see State v. Bennett, 31 The wife is not competent to prove an la. 24. aim for her husband in a criminal 64. Goodrum v. State, 60 Ga. 509. prosecution. Miller v. State, 45 Ala. 65. 1 Greenl. Evid., § 339, and eases 24. cited; 2 Stark. Evid. 400; Bull N. P. 59. Pedley v. Wellesley, 3 Car. & P. 2.87 ; Campbell v. Twemlow, 1 Price, 558. The authority of this case seems, 81. So as to the wife of a freedman. however, questionable. Hampton v. State, 45 Ala. 82. The 87 AS WITNESSES. § 65 privileged communications all that passes between persons suppos- ing themselves lawfully married, and at all events not to prejudice the rights of the innocent party to an invalid marriage; but the rule has not always been carried to such an extent. § 64. Common-lav«r Exceptions. Some exceptions exist to the rule, founded mainly on consider- ations of public policy. Thus the vdfe may testify as to her forcible abduction and marriage; but in such cases she is hardly to be considered the wife."* High treason also was formerly held an exception to the rule ; for the allegiance due to the crown was said to be paramount to all private considerations ; but this is not probably good law at the present day.°' The wife's testimony has been admitted as to some peculiar secret facts.°° Dying declara- tions of one are admissible to charge the other with murder.'* § 65. Crimes or Injuries Inflicted by one on the other. In general, husband and wife can make criminal complaints and testify against one another as to personal injuries, upon a prosecu- tion; for this the rule of self-preservation requires.'" It is gen- erally conceded that a prosecution for personal violence committed by the husband upon the wife is a prosecution for a crime against the wife,'^ and that a conspiracy to have a wife declared insane involves a crime against the wife '^ such as to make her a competent rule of exclusion, does not extend to a 70. See Lord Mansfield, in Bentley mistreffi or the husband of one 's para- v. Cook, 3 Doug. 422 ; 1 East P. C. mour. Dennis v. Crittenden, 42 N. T. 455. But see Lord Thurlow, in Sedg- 542; Mann v. State, 44 Tex. 642; Hill wiek v. Walkins, 1 Ves. 49. In a pro- V. State, 41 Ga. 484; Riokerstriker v. seeution against a wife and her par- State, 31 Ark. 207 ; State v. Brown, 28 amour for adultery, the husband may La. Ann. 279. testify against the wife. State v. Ben- 66. 2 Buss, on Crimes, 605, 606 ; 1 Bl. nett, 31 Iowa 24. Wife allowed to Com. 443 ; 1 Greenl. Evid., § 343, and testify against husband for using in- cases cited in note. strument with intent to procure her 67. 1 Greenl. Evid., § 345, and au- miscarriage. State v. Dyer, 59 Me. thorities cited; contra, 4 Bl. Com. 29. 303. See also, as to assault, &c., Mat- 68. Bex V. Reading, Cas. temp. thews v. State, 32 Tex. 117; Goodrum Hardw. 79^, 82; RatclifE v. Wales, 1 v. State, 60 Ga. 509; Whipp v. State, Hill, 63; 1 Greenl. Evid., § 344. Hus- 34 Ohio St. 87; State v. Parrott, 79 band or wife shall not prove the fact N. 0. 615. of access or non-access. Boykin v. 71. Dill v. People, 19 Colo. 460', 36 Boykin, 70 N. C. 26». Pac. 229. 69. State v. Belcher, 13 S. C. 459. 72. Comm. v. Spink, 137 Pa. 255, 20 And see State v. Ryan, 30 La. Ann. Atl. 680. 1176. § 65 HUSBAND AND WIFE. S8 witness against the husband. The Iowa court has gone further than some others in holding that the crime of incest committed by the husband is a crime against the wife,'^ and so of a prosecution for adultery or bigamy. ''* There seems to have been a gradual change in the attitude of the courts on the question as to when a wife can testify against the husband, and the rule is certainly tightening against the criminal. At common law a wife could testify only in cases of violence upon her person, and our Supreme CJourt has said that " Polygamy and adultery may be crimes which involve disloyalty to the marital relation, but they are rather crimes against such relation than against the wife." ''* It has been recently held, however, that the wife can testify in a case of bigamy," and a recent decision " has gone so far as to hold that the wife might testify against her hus- band in a prosecution against the husband under the Mann Act for transporting her from place to place for purposes of prostitution. The decision is based on the general principle that a man ought not to avoid criminal liability by marrying his victim. The court remarks that " It cannot be that the common law would protect the wife against a single act of violence and not against a system of assaults; against an act that brought merely mortification and shame, and not against a series of acts which brought degradation and destruction of body and soul ; against a single essay at crime, and not against a continuing effort at pre-eminence in infamy." Statutes commonly provide that in a criminal case the husband and wife shall not be witnesses against each other except in a prosecution for a crime committed by one against the other, and there is some confusion in the cases as to just what is a crime by one against the other. Under such a statute a first wife m.ay testify against the husband in a prosecution against him for big- amy, as this is a crime against her, as she is the individual particu- larly and directly injured or affected by the crime for which he is prosecuted ; '"' or the wife to testify in a prosecution of the hus- 73. State v. Chambers, 87 la. 1, States, 137 IT. 8. 496, 11 Sup. Ct. 165, 53 N. W. 1090, 43 Am. St. Rep. 349. 34 L. Ed. 762. 74. State v. Bennett, 31 Iowa 34 ; 76. Sehell v. People, — Colo. — , 173 State Sloan, 55 Iowa 217, 7 N. W. Pae. 1141, L. B. A. 1918F 954. 516; contra, Bassett v. United States, 77. Denning v. United States, 247 137 U. S. 496, 11 Sup. Ct. Rep. 165, Fed. 463, L. E. A. 1918E 487. 34 L. Ed. 762. 78. Sehell v. People, — Colo. — , 173 75. Brewer, J., in Bassett v. United Pac. 1141, L. R. A. 1918P. 954. 89 AS WITNESSES. § 67 band for non-support of their child, as this is a crime against the domestic relation in which she is interested.'* Under such a statute the wife cannot testify where the husband has forged the wife's name. This is not a crime against the wif^ as it would not render her liable on the instrument, but is a crime and an attempt to defraud some third person,'" but a wife is a competent witness against the husband in a prosecution for his perjury in obtaining a divorce against her. The decree of divorce causes ignominy to fall on the wife, and changes her property rights as well as her personal status, and the crime committed was pecu- liarly injurious to the wife. It is immaterial that the divorce was not obtained through this perjury, but that it was discovered.*^ § 66. Adultery. In a prosecution of a woman for adultery the testimony of her husband as to his marriage with her is competent evidence.*^ § 67. Joint Defendants. Where several are held together for a joint ofEence, the wife of one is not a good witness against the otiers, so long as her testi- mony might affect her husband's case; '* but if he has already been convicted or acquitted, or is not indicted at all, or the indictment against him is dismissed, or the grounds of defence for each are entirely distinct, the rule is otherwise.** Where a wife is not a competent witness in behalf of her husband in a criminal case, still, where he is one of two joint defendants, she may be allowed to testify in behalf of the other defendant with 79. Hunter v. State, Okla. Crim. 387; State v. Mooney, 64 N. C. 54; Bep. — , 134 Pac. 1134, L. E. A. 1915A Pincher v. State, 58 Ala. 215 ; Powell 564. V. State, 58 Ala. 368 ; Eay v. Common- 80. Molyneux v. Willeookson, — wealth, 12 Bush, 397. As to the wife j(y^g^ 137 N. W. 1016, 41 L. E. A. of an aecompliee who testifies against (N. S.) 1213. accused, see Blackburn v. Common- Si. Dill V. People, 19 Colo. 46ff 41 wealth, 12 Bush, 181; State v. Lud- Am. St. Eep. 254, 36 Pae. 229; West wick, Phill. (N. C.) 401. V. State, — Okla. Crim. Eep. — , 164 84. As to civil suits, where two or Pae. 327 L. E. A. 1917E 1129. more defendants must rely upon the 82. State v. Shaw, 73 Vt. 149, 94 same defence, so that proof of a good Atl. 434 L. E. A. 1915F 1987. defence as to one establishes a defence 83. Hall P. C. 301; Dalt. Just. c. as to the other, the wife of one can- Ill- 1 Greenl. Evid., § 335, and notes; not usually be heard in behalf of the 1 Phil. Evid. 75 n.; Eegina v. Wil- other. Stewart v. Stewart, 41 Wis. liams, 3 Car. & P. 558; Eex. v. Lock- 6i24; Mercer v. Patterson, 41 Ind. er, 5 Esp. 107 ; Blake v. Lord, 16 Gray, 440. § 68 HUSBAIfD AND WIFE. 90 a caution to the jury that her evidence is not to affect the case against her husband. *° Where there is evidence that the husband and wife were con- spirators, the acts and declarations of the wife just before the crime are admissible on the ground of agency as against the husband.*" § 68. Res Gestae or Agency. The wife's declarations may be given in evidence for or against her husband, where material, as part of the res gestae; as in a suit regarding an insurance policy where she is the party insured ; in an action against the husband for her board, lie having turned her out of doors; and, in general, within the scope of the agency, wherever she acts purely as his agent.*' So one who sells bonds as agent for his wife is a competent witness in an action to enforce the contract of sale on the ground of agency.** Under a statute prohibiting a husband and wife from testifying for or against each other, except as to matters where one is acting as agent for the other, where a wife sends h^r husband to find a witness he is not her agent in talking to the witness after he has found him, and cannot testify to the conversation.** In collateral proceedings, only remotely affecting their mutual interests, their evidence is admissible though it may tend to crim- inate or contradict or subject the other to a legal demand; as in a suit relating to a pauper settlement, where the wife's testimony tends to convict her husband of bigamy.®" Or, in collateral pro- ceedings, to prove the fact that they were husiband and wife at a certain time.'^ 85. Lawson v. Comm., 160 Ky. 180, 150 S. W. 56, 43 L. E. A. (N. S.) 169 S. W. 587, L. E. A. 1915D 972. 660. 86. Thompson v. State, — Tex. — , 89. Muskogee Eleetrie Traction Co. v. 178 S. W. 1192. See note in 29 Har- Mclntyre, 37 Okla. 684, 133 Pae. 213, vard Law Eeview, 332. L. E. A. 1916C 351. 87. Averson v. Lord Kinnaird, 6 90. l.Greenl. Evid., § 342; Fitch v. East, 188 ; Walton v. Green, 1 Car. & Hill, 11 Mass. 286 ; Griffin v. Brown, 2 P. 621; Thomas v. Hargrave, Wright, Pick. 308; 2 Stark. Evid. 401; Wood 595, and other cases cited in note to 1 v. Bibbins, 58 Ind. 392; Higbee v. Mc- Greenl. Evid., § 342'; Fisher v. Conway, Mullan, 18 Kan. 133; Fraim v. Fred- 21 Kan. 18 ; Chunot v. Larson, 43 Wis. erick, 32 Tex. 294. 536; Trepp v. Barker, 78 111. 146; 91. Leaphart v. Leaphart, 1 S. C. Sumner v. Cooke, 51 Ala. 5ai; Hale v. (N. S.) 199; Leighton v. Sheldon, 16 Danforth, 40 Wis. 382. Minn. 243; Denisonv. Denison, 35 Md. 88. Eose V. Monarch, 150 Ky. 129, 361. 91 AS WITNESSES. § 69 § 69. Before or After Termination of the Relation. Both husband and wife may testify, after the relation has terminated, as to facts which came to each other's knowledge by means equally accessible to any person not standing in that rela- tion ; for here the same principle applies as in the case of privileged communications between attorney and client.®^ Thus a divorced wife may testify as to her relations with the defendant in an action for the alienation of her aifections if it does not concern any com- munication between herself and husband during marriage, or which she obtained by virtue of the marital relation, notwithstanding a statute providing that husband or wife shall not testify against each other or concerning any communication between them during marriage.'* Communications between a divorced couple may be heard in evidence although the divorce was obtained by the fraud of one of them and was subsequently set aside, where they never afterwards recognized eadh other as man and wife.°* And the divorced wife may testify against the husband even in a prosecu- tion against him for perjury in obtaining the divorce.'^ Where the statute forbids the wife f*)m testifying for or against the husband, this includes transactions occurring before marriage of the parties. The statute is based on public policy, and to avoid lack of harmony in the marital relation, and on account of identity of interest and on account of the influence coromonly exercised over the wife by the husband and her competency must depend upon the relationship at the time of the trial when she is offered as a witness.** So where the defendant has carnal knowledge of a female under the age of consent, and subsequently marries her, she cannot be a witness against him in a prosecution for such carnal 92. 1 Greenl. Evid., § 338 ; Coffin, v. where suit is for breach of promise of Jones, 13 Pick. 445 ; Williams v. Bald- marriage. Collins v. Mack, 31 Ark. win, 7 Vt. 506 ; Cornell v. Vanartsda- 684. len, 4 Barr, 364 ; English v. Cropper, 93. Merritt v. Cravens, 168 Ky. 155, 8 Bush, 292 ; Elswiek v. Commonwealth, 181 S. W. 970, L. E. A. 1917F 935. 13 Bush, 155 ; Spivey v. Platon, 39 Ark. 94. Spearman v. Texas, — Tex. 603. So as to eommunieations not con- Crim. Bep. — , 152 S. W. 915, 44 fidential, but evidently designed to be L. E. A. (N. S.) 243. made pubUe. Crook v. Henry, 25 Wis. 95. Laird v. State, — Tex. — , 184 569. As to the wife of a divorced S. W. 810. See note 30 Harvard Law spouse testifying to facts which oc- Eeview, 87. curred before or after the divorce, see 96. Sands v. Bradley & Co., — Okla. Crose V. Eutledge, 81 HI. 266. Hus- — , 129 Pac. 733, 45 L. E. A. (N. S.) band of plaintiff disqualified even as 396. to matters occurring before marriage, § 70 HUSBAND AND WIFE. 93 knowledge, althougli he married her solely to defend himself against prosecution and had never lived with her or supported her since the marriage. The case is governed by the common-law rule that one spouse cannot testify against the other over the ohjection of the latter. There is an exception where the evidence of the wife i& necessary to prove personal injuries while the relationship of hus- band and wife is in existence between them, but this does not include cases occurring before marriage. As here she became a wife by her own consent and because she wanted to marry the defendant, the vsTong to her was wholly unconnected with her con- sent to the marriage, and can in no sense be said to have caused her consent, and by the marriage she became a wife de jure.^ § 70. Confidential Comtniinications. The English Evidence Act of 1853, 16 & 17 Vict. c. 83 (which has been substantially enacted in some parta of this country), renders husbands and their wives competent and compellable wit- nesses for each other, except in criminal cases and in cases of adultery ; but neither shall he compelled to disclose communications made during marriage.** 97. Norman v. State, — Tenn. — , 155 S. W. 135, 45 L. E. A. (N. S.) 399. 98. See Ed. note to 10th ed., 2 Kent Com. 181; Stapleton v. Croft, 10 E. L. & Eq. 455; Barbat v. Allen, ib. 596; Alcock V. Alcoek, 13 ib. 354; State v. Wilson, 30 N. J. 77; Farrell v. Led- well, 21 Wis. 182i; Peaslee v. MeLoon, 16 Gray, 488 ; Metier t. Metier, 3 C. E. Green, 270. Some of the later Ameri- can cases turning largely upon the con- struction of statutes are Parsons v. People, 21 Mich. 509 ; State v. Straw, 50 N. H. 460; Stanley v. Stanton, 36 Ind. 445; Noble v. Withers, 36 Ind. igfS; Craig v. Brendel, 69 Penn. St. 153; Newhouse v. Miller, 35 Ind. 463; Beeves v. Herr, 59 111. 81; Green v. Taylor, 3 Hughes, 400; Haerle v. Kreihn, 65 Mo. 202; State v. Brown, 67 N. C. 470. In an action against both for the wife's slanderous words, the wife is competent in her own be- half, and the husband for himself. Mousler v. Harding, 33 Ind. 176. Not- withstanding our statutes as common- ly worded, a prisoner's wife is not a competent witness for or against him upon the trial of an indictment. People V. Beagle, 60 Barb. 527; Wilke v. People, 53 N. Y. 525; Steen V. State, 20 Ohio St. 333. Husband permitted to testify, when a substantial party to the suit, though claiming in right of his wife. Fugate v. Pierce, 49 Mo. 441; Cooper v. Ord, 60 Mo. 420. As to the competency of a wife now to testify, if agent for an absent husband, see Magness v. Walker, 26 Ark. 470; Morony v. O'Laughlin, 102 Mass. 184; Eobertson v. Brest, 83 111. 116. As to competency under statute in case of tort, see Bunker v. Bennett, 103 Mass. 516; Anderson v. Friend, 71 111. 475. Wife of an heir held in- competent, notwithstanding statute, in a suit contesting the validity of a will. Carpenter v. Moore, 43 Vt. 392. Wife not protected under statute from mak- ing discovery, though it be against herself. Metier v. Metier, 3 C. E. 93 AS WITNESSES. § 70 It is the universal rule that husband and wife cannot testify to confidential communications made bj one to the other when alone, but communications by a wife to a husband in the presence of a third party are admissible and are not privileged.®* So a letter written by a husband to his wife when the parties were living apart and dealing at arm's length, in which he stated what he would do if she brought divorce proceedings against him, is not a confidential communication, and may be received in evidence.^ Green, 270. Husband may prove the speaking of the defamatory words in an action of slander brought by him- self and wife. Duval v. Davey, 32 Ohio St. 604; Hawver v. Hawver, 78 111. 412. Wife not competent for hus- band in action by latter against a stranger for carrying away husband's goods. Hayes v. Parmalee, 79 111. 563. Testimony under liquor acts, see Jack- son V. Beeves, 53 Ind. 231; Snow v. Carpenter, 49 Vt. 426. Wife's testi- mony may now be that of substantial party in interest as to her property, and testimony of husband that of her agent. Quade v. Fisher, 63 Mo. 325; Wilcox V. Todd, 64 Mo. 388. In stat- ute proceedings to compel support, see People V. Bartholf, 31 N. T. 272. As to declarations of deceased spouse proved by the survivor, see Dye V. Davis, 65 Ind. 474; White v. Perry, 14 W. Va. 66. As to testimony affecting claims against a deceased spouse's estate, see Freeman v. Freeman, 62 111. 189; Floyd V. Miller, 61 Ind. 224; Doug- herty V. Deeney, 41 la. 19; Davis V. Davis, 48 Vt. 502 ; Barry V. Sturdi- vant, 53 Miss. 490; Patton v. Wilson, 2 Lea, 101. Or where the adverse party is representative of a deceased person, see Hunter v. LoweU, 64 Me. 572. A divorced wife allowed to be a competent witness in certain in- stances; showing her status and com- petency by the judgment record in the divorce suit. Wottrich v. Freeman, 71 N. Y. 601. Wife held competent to prove mar- riage contract between herself and her deceased husband, where the legality of the marriage is in question. Greena- walt V. McEneUey, 85 Penn. St. 352. As to testimony where the suit re- lated to property held by husband and wife jointly, see MeConnell v. Martin, 53 Ind. 434. A statute providing for the admis- sion of interested parties as witnesses does not per se remove the disqualifi- cation of husband and wife. Lucas v. Brooks, 18 Wall. 436; Gibson v. Com- monwealth, 87 Penn. St. 253; Schultz V. State, 32 Ohio St. 276 ; Gee v. Scott, 48 Tex. 510. If one marital party testifies for or against the other, under statute, cross- examination must be permitted, even if it compels the testimony to the op- posite direction. Ballentine v. White, 77 Penn. St. 20; Steinberg v. Meany, 53 Cal. 425. A wife cannot testify against her husband upon his trial for theft of her property. Overton v. State, 43 Tex. 616. Concerning testimony as to conver- sations held by married parties when they were alone, the rule of the com- mon law, encouraging their confidence, is presumed to be unchanged unless the statute is positive to that effect. Eaynes v. Bennett, 114 Mass. 424; Westerman v. Westerman, 25 Ohio St. 500; Brown v. Wood, 121 Mass. 137; Wood V. Chetwood, 27 N. J. Eq. 311; Stanford v. Murphy, 63 Ga. 410. 99. Pileher v. Pilcher, — Va. — , 84 S. E. 667, L. E. A. 1915D 9^02. 1. McNamara v. McNamara, — Neb. — , 154 N. W. 858, L. E. A. 1916B 1272. § 71 HUSBAND AND WIFE. 94: In a recent case the court has adhered to the ancient rule in all its purity, that communications between husband and wife, when alone, are privileged, and holds that a wife should not be permitted to show that her deceased husband was mentally unsound by testi- fying to his halbits of intoxication, his hearing of voices, his mut- terings while asleep, the delusions which caused him to arm him- self with guns and pistols, insults offered her and attempts to take her life. The fact that he had been guilty of similar conduct in the presence of others does not authorize her to testify to conduct and declarations when alone.^ Even a statute making husband and wife competent witnesses against each other does not apply to confidential communications between them, and such privileged testimony cannot be divulged by either of Uhem.' Under a statute prohibiting a huSband and wife from testifying against each other the wife may be called by the husband and testify to private conversations had between them if they are other- wise material. The statute was intended to protect husband and wife and for their benefit, and cannot be construed to deprive either of them of any rights they otherwise might have.* There is a clear distinction often overlooked between the dis- qualification of one spouse not to testify for the other and the privilege of one not to have the other testify against him. The privilege generally remains, but the disqualification has been uni- versally removed by statute." When a wife testifies in favor of her husband her testimony may be impeached as in case of any other witness,® but where her testimony against her husband in grand jury proceedings has been improperly obtained it cannot be used to impeach her later testimony in favor of her husband before the petit jury.' § 71. Interest of Witness. There have been some important changes introduced into the law of evidence in some parts of this country by statute ; such as per- 2. Whitehead v. Kirk, — Miss. — , Hep. — , las Pae. 571, 40 L. E. A. (N. &! So. 737, 51 L. E. A. (N. S.) 187. S.) 43. 3. Williams v. Betts, — Del. — , 98 5. Talbot v. United States, 208 Fed. Atl. 371; MeCormick v. State, — 144. See 33 Harvard Law Eeview Tenn. — , 186 S. W. 95, L. E. A. 873. 1916F S'Sa; Wilkes v. Wilkes, 115 Va. 6. Bell v. State, — Tex. — 213 8. 886, 80 S. E. 745. W. 647. 4. Hampton v. State, — Okla. Crim. 7. Doggett v. State, — Tex. — , 215 S. W. 454. 95 AS WITNESSES. § 71 mitting interested peisoiis to testify in their own suits. Where the old doctrine prevails, the exclusion of the husband, by reason of direct interest, operates to exclude his wife likewise.* So the husband cannot be a witness in a controversy respecting his wife's separate estate, though in respect to other parties concerned he might be competent.* Under a statute rendering one incompetent to testify as to a transaction with a deceased person who is interested in the event, the wife of the plaintiff in an action for his services is not incom- petent, as she has no direct legal or pecuniary interest, as upon recovery no right growing out of the married i-elationship would attach to the money recovered. Where the property in controversy is land the wife may be incompetent where her dower may be affected.'" On the whole, the prevailing tendency of late years in both England and America is to regard domestic confidence or the bias of a spouse as of little consequence compared with the public con- venience of extending the means of ascertaining the truth in all causes; such facilities being increased, it is believed, by hearing whatever each one has to say, and then making due allowance for circumstances affecting each one's credibility. By the modern enlargement of the wife's separate contract and property relations, moreover, the spouses are presented, not so constantly as partakers of one another's confidence, but rather as persons having adverse interests to maintain, or else as principal and agent. 8. Greenl. Evid., § 341; Ex parte 2.42; Northern Line Packet Co. v. Jones, 1 P. Wms. 610; and ef. Stat. Shearer, 61 III. 263; Porter v. Allen, 6 Geo. rV., eh. 16, § 37. 54 Ga. 623 ; Wing v. Goodman, 75 HI. 9. 1 Burr. 424, per Lord Mansfield; 159. As where the husband dealt with 13 Vin. Abr. Evidence B. And see the wife's separate property as her note to 1 Greenl. Evid., § 341, with au- agent. Chesley v. Chesley, 54 Mo. 347 ; thorities cited. In v^irious States a Menk v. Steinfort, 39 "Wis. 370. But spouse, under statute, may be a compe- cf . Eobison v. Eobison, 44 Ala. 227. tent witness to a greater or less extent 10. Helsabeck v. Doub, 167 N. C. with reference to wife's separate prop- 305, 83 S. E. 241, L. E. A. 1917 A, 1. erty. Musser v. Gardner, 66 Penn. St. § 72 HUSBAND AND WIFE. 96 CHAPTER y. GENEKAL INEQUALITIES. Section 7a. What each Spouse yields as to Property. 73. Husband's Liability for Wife's Contracts; Wife's Immunity. 74. Wife's Immunity, etc., as to Torts. 75. When Wife is treated as Feme Sole. § 72. What each Spouse yields as to Property. The property rights of married women are restrained at the common law. The husband yields to his wife no participation whatever in his own property, whether acquired before or during the continuance of the marriage relation, except a certain right of inheritance to his goods and chattels, of which he can generally deprive her by his will and testament, and also dower in his real estate, which is her only substantial privilege. In return for this, she parts with all control, for the time being, over her own prop- erty, whensoever and howsoever obtained, by gift, grant, purchase, devise or inheritance ; gives him outright her personal property in possession, and allows him to appropriate to himself those outstand- ing rights which are known as her choses in action, or all the rest of her personal property; parts with the usufruct of her real estate, creating likewise a possible encumbrance upon it in the shape of tenancy by the curtesy ; and finally takes, if she survives him, only her real estate, such of her personal property as remains undisposed of and unappropriated, with a few articles of wearing apparel and trinkets called paraphernalia. She cannot restrain his rights by will. She is not allowed to administer on his personal estate in preference to his own kindred, though the whole of it were once hers; while he can administer on her estate for his own benefit, and exclude her kindred altogether, even from participation in the assets. Thus unequal are the property rights of husband and wife by the strict rule of coverture. We speak not here of recent statutory benefits conferred upon the wife; nor of that relief which equity affords in permitting property to be held to the wife's separate use, and giving her a provision from her choses in action, when the husband seeks its aid in appropriating them to 97 QENEEAL INEQUALITIES. § 75 his own use ; but of what is to be properly termed the common law of husband and wife/^ § 73. Husband's Liability for Wife's Contracts; Wife's Im- munity. Some recompense is afforded to the wife for the loss of her for- tune, in the rule that her husband shall pay her debts contracted while a feme sole; that is, unmarried. And while coverture lasts he is liable for all just debts incurred in her support. He has even been held guilty of murder in the second degree when he has suf- fered her to die for want of proper supplies.^^ The wife cannot make a contract so as to bind herself ; but in this, and other cases of express or implied authority, she can bind her hu^and, and so secure a maintenance. That which cannot be enforced by the wife as a matter of obligation is often attained at the common law in some indirect way.^* Nor can the wife sue and be sued in her own right. § 74. Wife's Immunity, &c., as to Torts. So, too, the husband is liable civilly for the frauds and injuries of the wife, committed during coverture ; being sued either alone or jointly with her, in accardance with the legal presumption of coercion in such cases. And he must respond in damages, whether she brought him a fortune by marriage or not. But as we have seen, this rule does not apply to crimes, except that the law shows the wife a certain indulgence where a similar presumption can be alleged on her behalf. On the other hand, the husband takes the benefit of such injuries as she may suffer, by suing with her and appropriating the compensation by way of damages to himself.^* § 75. When Wife is treated as Feme Sole. We may add that the wife is relieved at the common law of the disabilities of coverture, and placed upon the footing of a feme sole, with the privil^e to contract, sue and be sued, on her own behalf, in one instance, namely, where her husband has abjured the realm or is banished ; for he is then said to be dead at the law.^" 11. See 1 Bl. Com. 442-445, and 14. 1 Bl. Com. 443; S Kent Com. notes, by Christian, Hargrave, and 149, 150. others; 2 Kent Com. 130-143. 15. 1 Bl. Com. 443; 2 Kent Com. 12. Eeg. v. Plummer, 1 Car. & K. 154. See Separation, post. 600. 134. See Separation, post, % 1060 et 13. See 1 Bl. Com. 442; 8 Kent, *egf. Com. 143-149. 7 § 75 HUSBAND AND WIFE. 98 And the necessity of the case furnishes the strongest argument for this exception. Another exception early prevailed in certain parts of England by local custom, — as that of London, — where the wife might carry on a trade, and sue and be sued in reference thereto as though single.^* 16. 1 Selw. N. p. 298; Bing. Inf. statement of doctrines which at the 251, 262. The modem practitioner is present day are found to be controlled here cautioned that the statement of and changed, to a great extent, \>y the common law in this chapter is a modem equity rules and legislation. 99 wife's antenuptial debts. § 76 CHAPTER VI. wife's antenuptial debts. Section 76. Bule stated. 77. Extent and duration of Liability. 78. Hardship of Rule. 79. Actions to Eeeover Antenuptial Debts. 80. Effect of Bankruptcy. 81. Effect of Contract Between Spouses as to Antenuptial Debts. 82. Effect of Statute. § 76. RiUe stated. One of the immediate effects of marriage at the common law is that the husband at once becomes bound to pay all outstanding debts of his wife, — her debts dum sola, as they are called, — of whatever amount. This is a sort of recompense he makes for taking her property into his hands. But whether she brings him a fortune or not, his liability is not affected. She may owe large sums at the time of marriage and have nothing to offset them. She may have studiously concealed the existence of the debts from her affianced husband. But none of these considerations can avail to shield him. When married, she is married with her debts as well as her fortunes. As Blackstone observes, her husband must be considered to have " adopted her and her circumstances to- gether."" This rule is moreover applied without discrimination as to indi- viduals. An infant who marries is bound equally with an adult husband." A second husband is liable for the debts of his wife outstanding at the close of her widowhood, whether contracted prior to her first marriage, or while living separate from her first husband, and upon a separate maintenance, or after the termina- tion of her first coverture and subsequent to the second.^' On gen- eral principles the husband is bound for the debt of his infant 17. 1 BL Com. 445; 3 Mod. 186; 3 18. Eoach v. Quick, 9 Wend. (N.T.) Kent Com. 143-146; Macq. Bus. & 238; Butler v. Breok, 7 Met. (Mass.) Wife, 39-41; Heard v. Staaiford, 3 P. 164. Wms. 409; Cas. temp. Talb. 173; Fer- 19. 1 T. E. 5; 7 T. E. 348; Prescott guson V. Williams, 65 Ark. 631, 44 8. v. Fisher, 2S 111. 390; Angel v. Felton, W. 1126; Heyman v. Heyman, 19 Ga. 8 Johns. (N. T.) 149. App. 634, 92 S. E. 25; Miller v. Kal- wey, 4 Ky. Law 362. § 77 HUSBAN-D AND WIFE. 100 wife while sole just as much as though she were an adult, though only to the same extent as she would have been bound. Hence, where the demand is for necessaries furnished her while an infant, the husband, after marriage, becomes bound to pay it, since she would have been liable if she had not married. And the infancy of the husband himself cannot be pleaded against this obligation. '"* § 77. Extent and duration of Liability. The liability of the husiband for his wife's debts while sole is limited strictly to legal demands ; that is to such as she was bound to pay at the time of her marriage.^^ And if a demand would not be enforceable against her remaining sole, neither is it enforceable against her husband. But the promise or part-payment of the wife cannot take a debt out of the statute of limitations as against her husband, nor can the promise or part-payment of the husband as against his wife, l^or can their admissions charge one another.^^ Their rights in this respect are separately regarded. The husband remains liable for the debts of his wife du7n sola only so long as coverture lasts. As his liability originated in the marriage, so it ceases with it. Hence if the obligation be not enforced in the life- time of the wife, the surviving husiband retains her fortune (if any) in his hands, and cannot be charged further with her debts either at law or in equity.^' The wife's choses in action still unre- duced to possession at the time of her death may, however, be reached by her creditors where he has received them as her admin- istrator, though only to the actual amount of such assets ; so that this would afford them but partial relief.^* Nor can the husband's estate after his death be made liable for the wife's debts contracted while sole.^° ISTot even the parol promise made by the husband during coverture to pay his wife's debts dum sola will create an 20. Cole V. Seeley, 25 Vt. 320; An- phreys v. Royee, 1 Mood. & Eob. 140, derson v. Smith, 33 Md. 465; Bonney as to admissions of the wife allowable V. Eeardin, 6 Bush (Ky.) 34. in evidence after her death. 21. Cowley v. Robertson, 3 Camp. 23. 2 Kent Com. 144. See Ch. Ca. 438 ; Caldwell v. Drake, 4 J. J. Marah. 295. (Ky.) 246. 24. Heard v. Stamford, 3 P. Wms. 22. Ross V. Winners, 1 Halst. (N. 409; Cas. temp. Talb. 173; Morrow v. J.) 366; Sheppard v. Starke, 3 Munf. Whitesides, 10 B. Mon. (Ky.) 411; (Va.) 29; Brown v. Lasselle, 6 Blackf . Day v. Measiek, 1 Houst. (Del.) 328. (Ind.) 147; Moore v. Leaeur, 18 Ala. 25. Woodman v. Chapman, 1 Camp. 606; Farrar v. Besaey, 24 Vt. 89; 189; Curtton v. Moore, 2 Jones Eq. Parker v. Steed, 1 Lea (Tenn.) 306. (N. C.) 204. But see Lord Tenterden, in Hum- 101 wipe's antenuptial debts, § 7S ■ .■» additional liability for them on his part.-" If the wifesufvives her husband, she becomes liable once more on her debts while sole. And this, too, though the means for extinguishing them may have already been squandered by her husband or placed beyond her reach.^'^ Here is a third hardship. Coverture, therefore, seems to operate here as a temporary disability, and not so as to utterly merge the wife's identity. The husband becomes liable by mar- riage, not as the debtor, but as the husband; the remedy being suspended, or rather shifted, during coverture. § 78. Hardship of Rule. The injustice of the rule in certain cases is obvious. Suppos- ing a feme sole is worth fifty thousand dollars, and owes at the time of her marriage five thousand dollars. She marries, and dies before her creditors have had time to sue her husband. There- upon the husband retains for himself the fifty thousand dollars, and the creditors are without a remedy. Such was the character of the argument pressed upon the distinguished Lord Talbot more than a century ago in the case of Heard v. Stamford?^ But his reply was as follows : " The question is, whether the husband, as such, be chargeable for a d^bt of his wife's, after her death, in a court of equity ? As, on the one hand, the husband is by law liable to all his wife's debts during the coverture, although he did not get one shilling portion with her, and although her debts should amount to any sum whatever ; so, on the other hand, it is as certain that if the debt be not recovered during the coverture, the husband is no longer chargeable as such, let the fortune he received be ever so great. The case, perhaps, may be hard, but the law hath made it so; and the alteration of it is the proper work of the legislature only." Lord Macclesfield, still later, encountered a different objection to the common-law rule, arising from an opposite state of facts. This he endeavored to answer. It may be hard, he observes, that the husiband should be answerable for the wife's debts when he re- ceives nothing from her ; but we are to set off against that hard- ship the rule, that if the husband has received a personal estate with the wife, and happens not to be sued during the coverture, he is not liable. He runs a hazard in being liable to the debts much beyond the personal estate of the wife ; and in recompense 26. Cole V. ShurtelefE, 41 Vt. 311. 28. Heard v. Stamford, 3 P. Wms. 27. Woodman v. Chapman, 1 Camp. 409. N. P. 189, per Lord Ellenborough. § 79 HUSBAND AND WIFE. 103 for that hazard he is entitled to the whole of her personal estate, though far exceeding the deibts, and is discharged from the debts as soon as the coverture ceases.^' Constituting a right by balancing off two wrongs may seem unsatisfactory to the modem reader. Still the court decided aright ; for the difficulty was in the common- law itself. § 79. Actions to Recover Antenuptial Debts. All the actions for the wife's debts while sole must be brought against husband and wife jointly, and not against either sepa- rately ; and judgment obtained by disregarding this rule will be re- versed on error.*" The object is to retain the remedy in hand so that execution may be taken out against the proper party according to circumstances ; for, if the husband should die pending the suit, the wife, on her survivorship, would become liable. If judgment be recovered against a feme sole on her debt before she marries, and she dies before execution is taken out, having married in the meantime, her husband will be discharged from liability. But if judgment be recovered against both during cover- ture, and the wife dies before execution, the husband is still charged, because by " the judgment the nature of the debt was altered, and it became his own debt.'^ So, too, when judgment was obtained before coverture, and scire facias brought upon it against husband and wife afterwards.*^ When judgment has been ob- tained for a debt of the wife while sole, and she afterwards marries, execution must in strictness be taken out against her alone, be- cause execution must always follow the judgment.** But if the creditor desire to charge a person who was not a party to the record, as the husband in this instance, scire facias should be issued so as to make his a party.** This rule applies likewise where the wife marries pending the suit. The death of the wife after action has 29. Thomond v. Suffolk, 1 P. Wms. 32. O 'Brien v. Earn, 3 Mod. 186 ; 469; a Kent Com. 144. Taylor v. Miller, 2 Lea (Tenn.) 153. 30. Eobinsoa v. Hardy, 1 Keb. 281 ; Mr. Bright seems to have stated this Drue V. Thorn, Alleyn, 72; Angel v. point incorrectly. See 2 Bright Hus. Felton, 8 Johns. (N. T.) 149; 7 T. K. & Wife, 3. 348; Gage v. Eeed, 15 Johns. (N. T.) 33. Doyley v. White, Cro. Jac. 323; 403; Gray v. Thacker, 4 Ala. 136; Bull. Ch. P. 23; Benyon v. Jones, 15 Platner v. Patchin, 19 Wis. 333. M. & W. 566; and see Haines v. Cor- 31. 2 Bright Hus. & Wife, 3 Burton Uss, 4 Mass. 659'; Commonwealth v. V. Burton, 5 Harring. (Del.) 441; Philipsburgh, 10 Mass. 78; Triggs v. O'Brien v. Earn, 3 Mod. 186; Sid. 337; Triggs, 2 M. & Ey. 126 n. Treviband v. Lawrence, 2 Ld. Eaym. 34. 2 Bright Hus. & Wife, 3, 4; 1050. Cooper v. Hunchin, 4 East, 521. 103 wife's antenuptial debts. § 81 been commenced against husband and wife, and before judgment, puts an end to the suit,*° while, on the other hand, the death of the huaband before judgment permits the suit to abate as to him, and proceed against her as survivor.*® The rule as laid down in England concerning the wife's personal liability on her debts dum sola is that coverture does not wholly relieve her from the consequences of judgment for the time being; for that both may be taken on execution; and when the wife is taken, she shall not be discharged unless it appear that she has no separate property out of which the demand can be satisfied.^' This rule does not seem to have been recognized with such strictness in this country.** But where the wife after marriage pays a portion of her debt contracted while sole from funds derived from her separate property, it is said that the husband will be bound by the act, unless he disaffirms it within a reasonable time.*" § 80. Effect of Bankruptcy. The English common-law courts hold that if the husband, during coverture, obtains a certificate of discharge in bankruptcy, the wife's debts dvm, sola are wiped out as well as his own.*" We apprehend the equity doctrine to be that though the husband be discharged, the wife's suspended liability yet remains; and this has been announced in !N^ew York.*^ And in Maine the wife's creditors dum sola may have a fraudulent conveyance of her prop- erty set aside notwithstanding her husband's insolvency.*" § 81. Effect of Contract Between Spouses as to Antenuptial Debts. So far as the rights of third parties are concerned, the liability of the husband for his wife's debts dum sola cannot be aiBfected by any antenuptial contract between the two ;** nor of course by their agreement during coverture. The special contract of a husband 35. Williams v. Kent, 15 Wend. (N. v. Eoe, 7 Man. & Gr. 339; Evans v. Y.) 360. For the proper procedure in Chester, 2 M. & W. 847. case of a mortgage executed by the 38. Mallory v. Vanderheyden, 3 wife dum sola, and foreclosed, with a Barb. Ch. (N. T.) 9 ; 1 Comst. 453. decree ordering personal judgment for 39. Hall v. Eaton, 12 Vt. 510. a deficiency, see Platner v. Patchin, 19 40. Miles v. Williams, 1 P. Wms. Wis. 333. ®^^' I^oo'^T^ood T. Salter, 5 B. & Ad. 36. Parker v. Steed, 1 Lea (Tenn.) 303. 206. *^- Mallory v. Vanderheyden, 3 37. Tidd, Pract., 9th ed., 1026; Barb. Ch. (N. Y.) 9; 1 Comst. 453. Sparkes v. Bell, 8 B. & C. 1 ; Newton 42. Hamlin v. Bridge, 24 Me. 145. 43. Harrison v. Trader, 27 Ark. 288. § 82 HUSBAND AND WIFE. 104; "with the creditor, relating to his wife's debt dum sola, furnishes a different cause of action to the creditor from that which arises out of the debt dum sola taken by itself.** § 82. Effect of Statute. The husband's legal responsibility for the debts incurred by his wife before marriage being founded in the theory that he had adopted her with her fortunes or misfortunes together, the creation of separate property rights on her behalf places this responsibility in a far more unfavorable light. The English Married Women's Act of 1870 abolishes the husband's liability for his wife's antenuptial debts, and fastens it upon such property, in- stead, as the wife may hold to her separate use;*" though this is somewhat modified by a later act which regards certain assets he may have derived from her.** So, too, in many of our States, it is now found that the hnsband's liability for his wife's antenuptial debts is either modified to the extent of the property received through her, or else abolished altogether; her sparate estate, if she have any, being made subject, instead, to their payment.*^ It has been held, however, that the common-law rule has not been abol- ished by the Arkansas Married Women's Act.** 44. Wilson v. 'Wilson, 30 Ohio St. St. 543; Bailey v. Pearson, 9 Fost. 365. (N. H.) 77; Eeuneeker v. Scott, 4 The eonunon law as to the wife's Greene (Iowa), 185 Curry v. Shrader, antenuptial debts is changed consider- 19 Ala. 831 ; Callahan v. Patterson, 4 ably by our modem legislation. Tex. 61. Such abolishing acts are not 45. Act 33 & 34 Viet. c. 93; Ex retrospectively construed. Clawson v. parte Holland, L. E. 9 Ch. 307 ; Sanger Hutchinson, 11 S. 0. 323. But as to V. Sanger, L. E. 11 Eq. 470. Illinois, see Connor v. Berry, 46 111. 46. Act 37 & 3» Vict. c. 50 (1874) ; 370, where the old liability is still De Greuchy v. Wills, L. E. 4 C. P. D. recognized. So, too, in Ohio. Alex- 362. Under this act the creditor may ander v. Morgan, 31 Ohio St. 546. sue the husband, who has the option to And the husband is there held liable plead non-liability, except as the act for debts of a partnership in which specifies. Matthews v. Whittle, L. E. the wife has been engaged before mar- 13 Ch. D. 811. riage. Alexander v. Morgan, 31 Ohio 47. Smith v. Martin, 124 Mich. 34; St. 546. See Mobray v. Leekie, 42 82 N. W. 662; 7 Det. Leg. N. 104; Md. 474. Johnson v. Grifaths & Co. (Tex.) 135 Where a debt was contracted before S. W. 683. marriage, it is held that the remedy Eoundtree v. Thomas, 32 Tex. 286; against the wife's separate estate Shore v. Taylor, 46 Ind. 345; Travis becomes suspended during marriage. V. Willis, 55 Miss. 557; Wood v. Or- Vanderheyden v. Mallory, 1 Comst. ford, 52 Cal. 412; Cannon v. Gran- 452. But see Dickson v. Miller, 11 g. tham, 45 Miss. 88; Madden v. Gilmer, & M. (Miss.) 594. 40 Ala. 637; Bryan v. Doolittle, 38 48. Kies v. Young, 64 Ark. 381, 42 Ga. 255; Smiley v. Smiley, 18 Ohio S. W. 669. 62 Am. St P mo 105 NECESSABIES. § 83 CHAPTER VII. NECESSAEIES. Section 83. Foundation of Common-Law Doctrine. 84. Summary of Modern Bule. 85. Liability of Husband — Bule Stated. 86. To Wife. 87. To Relatives of Wife. 88. To Third Persons. 89. Tor Necessaries of Putative Wife. 90. For Necessaries of Family in General. 91. For Articles in part Necessaries and in part not. 93. For non-necessaries. 93. Agency of Wife to Bind Husband for Neceaeariea. 94. Rule of Good Faith. 95. Effect of Infancy. 96. Effect of Notice not to Sell to Wife. 97. Effect of giving Credit to Wife or Third Person. 98. Effect of Money Provision for Wife. 99. Effect of Husband's ratification of Wife's unauthorized pur- chases. 100. Effect of Separation in General. 101. Effect of Abandonment by Husband. 102. Effect of Abandonment by Wife. 103. Effect of Separation by Consent. 104. Effect of Wife's Adultery. 105. Effect of Divorce and Allowance of Alimony. 106. Effect of Banishment, Insanity or Imprisonment. 107. Wife's Bight to sell property to Obtain Neceasariea. 108. LiabiUty of Wife. 109. What constitutes necessaries — in general. 110. Illustration. 111. Counsel Fees. 112. Medical Services. 113. Dental Services. 114. Last Sickness and Funeral Expenses. 115. What are not Necessaries. 116. Joint Statutory Liability for " Family Expenses." 117. Measure of Liability. 118. Effect of Separation. 119. House Rent. 130. What constitutes ' ' Family Expenses. ' ' 121. What are not " Family Expenses." § 83. Foundation of Common-Law Doctrine. On the important principle of the wife's agency rests the lia- bility of the husband, at common law, in contracts made by tho § 84 HUSBAHD AND WIFE. 106 wife for necessaries. It is a clear obligation which rests upon every husband to support his wife; that is, to supply her with necessaries suitable to her situation and his own circumstances and condition in life. Notwithstanding a man married unwillingly, — as, for instance, to avoid a prosecution for seduction or bastardy — he is bound to support her.*" But though this obligation appears to rest on the foundation of natural justice, tho common law assigns, as the true legal reason, that she may not become a burden to the community. So long as that calamity is averted, the wife has no direct claim upon her husband under any circumstances whatever ; for even in the case of positive starvation she can only come upon the parish for relief; in which case the parish authorities vnll insist that the husband shall provide for her to the exent of sus^ taining life.®" If a husband fail in this respect, so that his wife becomes chargeable to any parish, the statute 4 Geo. IV., c. 83, § 3, says that " he shall be deemed an idle and disorderly person and shall be punishable with imprisonment and hard labor,"^^ § 84. Summary of Modern Rule. The common-law doctrine, as we have seen, makes the ground of the husband's liability for his wife's necessaries essentially that of agency. This agency is stated as an agency of necessity where a deserving wife stands in want of supplies because of her husband's misconduct. But in truth such necessity transcends all the analogies of an authorized representation, and inasmuch as the wife has no property and is legally dependent on her husband, a right to supply her wants upon his credit is inferred from the nature of her situation. When both spouses live together, the wife may pledge her husband's credit for necessaries, unless he supplies them otherwise, and so performs his duty after his own method ; if they separate, his liability continues commensurate with his obligation, so that she can only pledge his credit when the fault was not her own, but, being justified in her conduct, the conjugal right to necessaries is perfect, and consequently enforceable in this manner, unless he performs his duty after his own method. The discrep- ancy of the cases relates chiefly to presumptions in favor of the person who supplies the necessaries; and here, as we have seen, the latest decisions leave it in doubt how strong a presumption 49. State v. Eansell, 41 Conn. 433. Beg. v. Wendron, 7 Ad. & El. 819. 50. Bex v. Flintan, 1 B. & Ad. 227 ; 51. See Maephers. Inf. 42, 43. 107 NECESSAEIES. § 84 cohabitation as husband and wife furnishes by itself, formerly it was thought that private arrangements between husband and wife, where they lived together, could not be set up against the seller who had no notice thereof; but latterly the English inclina- tion has been, as we shall seCj^" to limit the implied agency of the wife during cohabitation to those whose dealings have already been recognized by the husband, and who therefore ought to have notice of revocation, which rule of course narrows down the presumption. Whatever presumption of authority may be inferred from cohabi- tation, separation raises the counter-presumption that the wife has no authority to pledge her husband's credit. Upon the whole, to reconcile the earlier and later decisions, the wife's right of procuring necessaries on her husband's credit may be deducted from these two combined considerations: (1) That where the husband proves remiss in furnishing needful support, the wife has the right to compel such support by pledging his credit, whether they cohabit or dwell apart, so long as misconduct on her part has not absolved him from the conjugal duty, — this rule of compulsion taking largely the place in modern times of the old remedies for^ merly pursued in the ecclesiastical courts; (2) That any wife may be the agent of her husband and bind him to the extent of her authority, like other representatives. In short the rule of agency and a wife's necessaries is carried far enough in actual practice to make that agency a fiction for the sake of a wife's self-protection against her unfaithful spouse.^' We may add that the husband's express contract with others, or his express promise or express sanction comes in aid of such legal inference concerning his liability for supplies furnished his 52. Post, § 99, wife in numerous instances to prose- 53. That agency is not the full cute or defend in furtherance of her measure of the wife's power to bind marital rights, even though it be her husband for what she needs is against the husband himself. Incon- further seen in the decisions upon the sistently enough, the fiction of agency point of a wife's legal expenses al- and necessaries has been here em- point of a wife's legal expenses ployed; but the true ground is rather Jater noticed. Post, § 111. Here that the wife is permitted to main- there is some confusion in the de- taia her rights against an unfaithful cisions; but a disposition very clear husband in self -protection. is shown by the courts to allow the § 85 HUSBAND AND WIFE. 108 wife, as may be drawn from any of the matrimonial situations which we have considered/* § 85. Liability of Husband — Kule stated. At common law the duty of furnishing necessaries for the family rests on the husband alone,°° Late cases also hold that if the hus- band fails to provide necessaries, he will be liable even at law to those furnishing them at the wife's request, even when they co- habit.^® It makes no difference that she is able to provide for her- self. ^^ The rule presupposes that the debt is that of the husband, and not of the wife, whose debts he is not generally liable to pay.^* But the principle is that the husband has the right to decide from whom and from what place the necessaries shall come, and that so long as he has provided necessaries in some way, his marital obligation is discharged, whatever may be the method he chooses to adopt. Accordingly where the spouses dwell together, so long as the husband is willing to provide necessaries at his own home, he is not liable to provide them elsewhere.^' In general, while the spouses live together, a husband who supplies his wife with neces- saries suitable to her position and his own, is not liable to others for debts contracted by her on such an account without his previous authority or subsequent sanction.'" In determining what is a reasonable expenditure of money for a family, the income of the husband, or his power to produce or earn one, is as important 54. See e. g. Daubney v. Hughes, 60 41 ; Woods v. Kaufman, 115 Mo. App. N. T. 187. Any notice intended to 398, 91 S. W. 399'. Under the civil terminate the continuance of an ex- law sums paid previously to a dation press contract must, in order to be en paiment for the support of the effectual, be appropriate thereto. lb. family, from all appearances by the And see Mickelberry v. Harvey, 58 husband, will not be charged to the Ind. 523. wife on the ground that she is liable 55. Heyman v. Heyman, 19 Ga. App. for necessaries for the family. Leh- 634, 92 S. E. 25 ; Edminston v. Smith, man v. Conlon, 105 La. 431, 2.9 So. 13 Ida. 64, 92 P. 842; Underbill v. 879. Mayer, 174 Ky. 229', 192 S. W. 14; 56. Humphreys v. Bush, 118 Ga. Noel V. O'Neill, 128 Md. 202, 97 A. 638, 45 S. E. 911; Bonney v. Perham, 513; In re Koaanke's Estate (Minn.), 102 111. App. 634; Wilson v. Thomass, lea N. W. 1060; Dorrance v. Dor- 127 N. Y. S. 474. ranee, 257 Mo. 317, 165 S. W. 783; 57. Ott v. Hentall, 70 N. H. 231, Wickstrom v. Peek, 155 App. Div. 47 A. 80, 51 L. E. A. 226. 523, 140 N. Y. S. 570 ; May v. Josias, 58. Werner v. Werner, 169 App. 159 N. Y. S. 820; Weiserbs v. Div. 9', 154 N. Y. S. 570. Weiserbs, 169 N. Y. S. Ill ; Negley 59. Morgan v. Hughes, 20 Tex. 141 ; V. Stone, 32 Misc. 733, 66 N. Y. S. JoUy v. Eees, 15 C. B. (N. S.) 628. 449; Stevens v. Hush, 171 N. Y. Supp. GO. Seaton v. Benedict, 5 Bing. 28. 109 NECESSAEIES. § 87 as the actual amount expended."^ The common-law rule has not been changed by the Married Women's Acts in Alabama, Arkansas or New York.*^ § 86. To Wife. A wife's own claim against her husband for moneys expended in procuring necessaries is not favorably regarded. Thus, if she leaves her spouse for good cause, and lives apart from him for many years, she ought either to pledge his credit, leaving the creditor to his own remedies, or else to institute such judicial proceedings as may result in the award of alimony or a separate maintenance ; but not to expect to render her husband a debtor to herself."^ But as respects her right of support she is a creditor, and may subject his property to such right, if rights of others have not intervened.®* Where a wife lived apart from her husband for eight years she had no claim against him or his estate for money expended for support and maintenance' during such period, though she left him for cruelty."^ If she has used her own earnings, while she has a right to them under a Married Women's Act, to support herself when deserted by her husband, she may recover from him the amount so expended.*' To maintain such an action she must show not only that she made the payments out of her separate estate, but also that the articles were technically necessaries.*^ § 87. To Relatives of Wife. Policy has regarded parental claims for necessaries furnished to a wife with great distrust. Such claims may doubtless accrue under an express contract.'* But the law will not ordinarily imply a contract as against a son-in-law, to pay his wife's board while staying at her father's house. " Persons in such a near connection as father and children do not usually live together upon a footing of obligation to account with and pay for attentions and services, or board and lodging. When the parties intend to live in 61. Clark v. Cox, 3a Mich. 204. 65. Pierce v. Pierce, 9 Hun, (N. T.) 62. Ponder v. D. W. Morris & Bro., 50. 152 Ala. 531, 44 So. 651; Sparks v. 66. Debiauwere v. Debrauwere, 203 Moore, 66 Ark. 437, 56 S. W. 1064; N. T. 460, 96 N. E. 722; Pearson v. Euhl V. Heintze, 97 App. Div. 442, 80 Pearson, 173 N. Y. 8. 563. N. T. S. 1031. 67. Pearson v. Pearson, 176 N. T. 63. Pierce v. Pierce, 16 K. T. 50. S. 6^6. 64. Chittenden v. Chittenden, 22 68. Daubney v. Hughes, 60 N. T. Ohio Cir. Ct. 498, 12 O. C. D. 536. 187. § 88 HUSBAND AND WIPE. 110 that way, it is but reasonable to require that there should be an express understanding between them to that effect."^' And this principle is extended to the husband's own board ; the law implying no contract by which the relation of debtor and creditor arises between father-in-law and son^-in-law, either for support on the one hand or services on the other.''" It is even held that in the absence of the husiband's request or promise to pay, the father of ^ a married woman, who has left sueh husband ready and willing to support her, cannot recover from the husband for her board or necessaries, even though she has brought a libel for divorce ;^^ though such claims, when hona fide, have been sustained where the wife is shown to have sought refuge at the parental abode, from the husband, upon grounds wholly justifiable.'''' Some of the latest cases, nevertheless, imply a promise on the husiband's part to pay his wife's board, where she goes to her parent's house upon a mutual understanding that she may stay there indefinitely, the spouses having quarrelled.'^ With the growing laxity of the marriage union, the parent's intervention on a daughter's behalf against her husband, with the view of procuring her divorce, and boarding her at the husband's cost meantime, is, unhappily, becoming far more common that formerly, and more readily encouraged by the courts. § 88. To Third Persons. Money lent the wife for the purchase of necessaries, or for other purposes however suitable, is not classed with necessaries at the common law ; probably because husbands do not often confer an authority liable so easily to abuse.''* But equity tabes a view more consonant to the wants of a distressed wife, and allows the person lending the money to stand in the stead of the tradesman, and to recover if the money was actually used for necessaries ; thus leav- ing him bound, in other words, only to see that his loan is properly 69. Per Court, in Cantine v. Phil- her father's direotion. Dowe v. Smith, lips, 5 Harring. (Del.) 428. H AUen (Mass.) 207. 70. Sprague v. Waldo, 38 Vt. 139. 73. Burkett v. Trowbridge, 61 Me. 71. Catlin v. Martin, 69 N. Y. 393. 351. And see Daubney v. Hughes, 60 The -wife should, rather, apply for an N. T. 187. allowance pending the libel. 74. Walker v. Simpson, 7 W. & S. 72. Biddle v. Prazier, 3 Houst. (Pa.) 83; Stone v. McNair, 7 Taunt. (Del.) 2-58. Even though the wife's 432; Stevenson v. Hardy, 3 Wils. 388; libel for divorce was prosecuted under Knox v. Bushell, 3 C. B. (N. S.) 334. Ill NECESSAEIES. § 89 applied." Therefore, money advanced for and applied to her support, by others, under like circumstances of abandonment, may be recovered of him in equity.'® § 89. For Necessaries of Putative Wife. Marriage de facto, or reputed marriage, is always sufficient to charge the hus/band with his wife's necessaries. There seem to be three reasons why this should be so ; one, that a tradesman cannot be expected to inquire into such matters ; another that agency binds any principal; the third, that it is just that a man who holds out a woman to society as his wife should maintain her as such. Hence an agency is to be inferred wherever there is cohabitation of parties as husband and wife; though not, it would appear, where the co- habitation is irregular and calculated to raise a different impres- sion, and strong proof of actual authority bestowed is not fur- nished. Lord Kenyon used very strong language to this effect in Watson v. Threlheld, where it appeared that the tradesman knew that there had been no marriage : " It is certain that if a man has permitted a woman to whom he was not married to use his name and pass for his wife, and in that character to contract debts, he is liable for her debts ; and I am of opinion that he is liable whether the tradesman who furnished the goods knew the circumstances to be so or not. He gives her a credit from his name and cohabita- tion ; and it is not to be supposed that the tradesman could look to the credit of a woman of that description and not to that of the man by whom she was supported.'"' The rule is especially applic- able where the parties have gone through a form of marriage.'* The dictum of Lord EUenborough, in Robinson v. Nahon, would seem to narrow this rule so as to exclude tradesmen having actual knowledge of the illicit relation of the parties." And the death 75. Harris v. Lee, 1 P. Wma. 488; 474, 34 N. E. 693, 21 L. E. A. 673; Walker v. Simpson, 7 W. & S. (Pa.) Deare v. Soutten, L. E. 9' Eq. 151. 83; Kenyon v. Farris, 47 Conn. 510; 77. 2 Esp. 637. And see 1 Greenl. Deare v. Soutten, L. E. 9 Eq. 151. Evid., § 207. See SehuUhofer v. Metzger, 7 Bob. 78. Prank v. Carter, 219 N. T. 35, (N. T.) 57« ; De Brauwere v. De Brau- 113 N. E. 549. ■were, 203 N.iT. 460, 96 N. E. 722; 79. Eobinson v. Nahow, 1 Camp. Marshall v. Perkins, 20 E. I. 34, 37 245. But reference to the case A. 301, 78 Am. St. E. 841. shows that this doubt is suggested 76. Kenyon v. Farris, 47 Conn. 510, more strongly in the reporter 's 36 Am. E. 86; De Brauwere v. De headnote than in Ms lordship's opin- Brauwere, 203 N. T. 430, 96 N. E. ion. See Jewsbury v. Newbold, 40 E. 72e, 38 L. E. A. (N. S.) 508. The L. & Eq. 518; Munroe V. De Chemant, rule is not recognized in Massachu- 4 Camp. 215. setts. Skinner v. Terrell, 159 Mass. § 90 HUSBAND AND WIFE. 112 of the quasi husband is held to revoke his authority altogether, so that a subsequent contract is void against his estate, under all circumstances.'" § 90. For Necessaries of Family in general. The obligation to provide necessaries extends to the whole family, with such modifications as will be more properly noticed in treatises upon the topic of parent and child. If a man marry a widow he is not bound to maintain her children ; unless he holds them out to the world as part of his own family,'^ nor to support a child which his wife brings into the family without his consent.*^ But by the statute 4 and 5 Will. IV., c. 76, § 57, the husband is required to maintain, as part of his family, any child or children, till the age of sixteen, legitimate or illegitimate, that his wife may have at the time of entering into the contract.'* As an agent duly authorized, the wife may doubtless pledge her husband's credit for the necessaries of the children, as well as her own. But upon the doctrine of presunnptions and an implied authority from him to do so, the common law is more reserved. " Family necessaries " is an expression of our later statutes which indicates a growing favor in that direction, and modem custom may, of course, extend the implied scope of an agency beyond earlier usage. There never was a doubt, in our law, of the obligation which rests upon the father of maintaining his children,'* and it has sometimes been considered that in a strong case, where the father neglects his duty, the infant child himself may bind the parent by his contract.'^ We shall ex- amine this point hereafter in the light of modern legislation," but may here remark that a wife's authority is more favored in this respect now than formerly, and that upon circumstances show- ing that the husband remitted the marital care and custody of children to the wife, she has been treated as an implied agent on hia behalf of their necessaries ; and even as an agent of necessity.'^ 80. Blades v. Tree, 9 B. & C. 167; 84. Supra, § 85. Stinson v. Prescott, 15 Gray (Mass.) Bazeley v. Forder, L. R. 3 Q. B. 559. 335. But see GinocMo v. Poroella, 3 85. See Sehouler Dom. Eel., Parent Bradf. Sur. 277. and Child, 327, 328, where this point 81. Attridge v. Billings, 57 HI. 489. is considered at length. 82. Haas v. American Kat. Bank, 86. See Cook v. Ligon, 54 Miss. 368 ; 42 Tex. Civ. 467, 94 S. W. 439. Powers v. Russell, 26 Mich. 179. 83. Tubb V. Harrison, 4 T. R. 118 ; 87. As where they have separated Cooper V. Martin, 4 East, 76; Stone upon the mutual understanding that V. Carr, 3 lisp. TT. P. 1 ; Hall v. Weir, * she may take the children with her. 1 Allen (Mass.) 261. See Sehouler Gotta v. Clark. 78 111. 229- m=-t - Dom. Rel., Parent & Child. 113 NECESSAEIES. § 92 As the obligation of a liusband to support does not extend be- yond Ms "wife and his own children, nor even to step-children, a wife cannot ordinarily make a binding contract to support her own parent, brother, sister, or near relatives, either at his expense or her own, since she is neither sui juris nor presumably his agent for that purpose/* § 91. For Articles in part Necessaries and in part not. The reader has perceived that the claim for a wife's necessaries involves two elements: articles furnished must be of the suitable class, such as food, dresses, or medical attendance; and, further- more, of that class the wife must be destitute of such supply as befits her condition and the means and station of her husband. Hence a blending of law and fact, and hence, moreover, much con- fusion in laying down the rules, though a tradesman has not always to inquire strictly. Where one has supplied the wife with articles, some of which are necessaries and some are not, some of which were rightly furnished her and some of which were not, he can yet recover for the necessaries, or for what he rightly furnished.** But on the other hand, one cannot furnish articles which were not necessaries and noit suitable, and recover a fraction of their value on the plea that they might have answered the purpose of other articles which would have been necessaries."" § 92. For non-necessaries. A husband is not usually liable for non-necessaries sold to his wife without his authority,®* and on her sole credit,"^ even though he fails to object when he learns of the transaction.*^ His subsequent he drives wife and children from home 91. Bennett v. Chamberlain (Del.), by his misbehavior. Eeynolds v. 5 Har. 391; McBride v. Adams, 84 Sweetser, 15 Gray (Mass.) 78; N. Y. S. 1060. 88. Olney v. Howe, 89 111. 556; At- 92. Mattar Bros. v. Wathen, 99 tridge v. Billings, 57 111. 48?; Cf. Ark. 389, 138 S. W. 455; Charles v. Schnuckle v. Bierman, 89 111. 454. Strouse, 120 N. Y. S. 736. 89. Eames v. Sweetser, 101 Mass. 93. Eichburg v. Sherwood, 101 Tex. 78; Eoberts v. Kelley, 51 Vt. 97. 10, lOa S. W. 905. 90. Thorpe v. Shapleigh, 67 Me. 235. § 93 HUSBAND AND WIFE. 114 promise to pay, in such case, is without consideration.** But if sold with his knowledge and consent he will be liaJble.®° § 93. Agency of Wife to Bind Husband for Necessaries. To enforce these marital obligations the law takes a circuitous course ; and the wife may secure herself from want against a cruel and miserly husband, of ample means to support her, by pledging his credit and making such purchases as are needful, on the strength of an implied authority for that purpose. Here, all other things being equal, it is presumed that she was her husband's agent ; and no direct permission need be shown. Indeed, wherever the facts are clear, that those articles were actually needed, and that the husband failed to supply them, this presumption is carried so far as to control even the express orders of the husband himself. The articles for which a wife is allowed to pledge her husband's credit as his presumed agent are designated at common law as necessaries. There is a broad presumption of assent which co- habitation of itself furnishes. The simple circumstance that hus- band and wife are living together has been generally held sufficient, when nothing to the contrary intervenes, to raise a presumption that the wife is rightfully making such purchases of necessaries as she may deem proper. °° Whoever then supplies her in good faitli, 94. Shuman v. Steinel, 129 Wis. 155; Montague v. Benedict, 3 B. & 423, 109 N. W. 74, 7 L. E. A. (N. S.) 0. 631 ; Maaby v. Seott, 1 Mod. 124 ; 1048. A wife purchased a hat, the 1 Sid. 109; 1 EoU. Abr. 351, pi. 5; original price of which was $4, upon Freestone v. Butcher, 9 Car. & P. 643 ; which she paid 50 cents, and said Bonney v. Perham, 102 111. App. 634 ; that her husband would pay the bal- Tuttle v. Hoag, 46 Mo. 38, 2 Am. R. ance that evening. Later in the day 481; Hamilton v. McEwen, 144 Mo. the husband and wife appeared at the App. 543, 129 8. W. 39 ; French v. store, and the husband gave his wife Burlingame, 155 Mo. App. 548, 134 50 cents, which she paid on the hat. 8. W. 1100; Feiner v. Boynton, 73 The husband said that he would come N. J. Law, 136, 62 A. 420; Bradt v. and pay for the hat, or that he would ShuU, 46 App. Div. 347, 61 N. T. 8. come back next Monday and pay the 484; Dixon v. Chapman, 56 App. Div. balance. Held, that there was an as- 542, 67 N. Y. 8. 540; Constable v. sent to or ratification of the wife's Eosener, 8i2 App. Div. 155, 81 N. T. purchase by the husband. Landgrof S. 376 (affd. 178 N. Y. 587, 70 N. E. V. Tanner, 152 Ala. 511, 44 8o. 397. 1097) ; Baccaria v. Landers, 84 Misc. 95. Jones v. Gutman, 88 Md. 355, 396, 146 N. Y. S. 158; Graham v. 41 A. 792. Schleimer, 28 Misc. 535, 59 N. Y. 8. 96. 2 Bright Hus. & Wife, 6, 7; 689; Jones v. Bernstein, 177 N. Y. 8. Bull. N. P. 134; Langfort v. Tyler, 155; Best & Co. v. Cohen, 174 N. Y. 8alk. 113 ; Atkins v. Curwood, 7 Car. Supp. 639 ; McCreery v. Scully, 67 Pa. & P. 756. See also Dyer v. East, 1 Super. 534; Geiger v. Blaekley, 86 Va. Vent. 42; Beaumont v. Weldon, 2 Vent. 338, 10 S. E. 43. The implied power 115 WEOBSSAEIES. § 93 as the law has usually been understood, need inquire no further, but may send his bill to her husband. The rule is a fair one ; for it is not to be supposed that a husband will go in person to buy every little article of dress or household provision which may be needful for his family. As Lord Abinger observed, a wife would be of little use to her husband in their domestic arrangements if his interference was always to be deemed necessary.'' Accord- ingly, if an action be brought against the husband for the price of goods furnished under such circumstances, it must be taken prima facie that these goods were supplied by his authority, and he must show that he is not responsible.** The wife's contract for necessaries will bind the husband to a still greater extent if the evidence warrant the inference that a more extensive authority has in fact been given."" Thus the pre- sumption which cohabitation furnishes is strengthened by proof that the wife has been permitted by the husband to purchase other articles of the same sort for the use of the household.^ But it must be ordinarily things for what may be termed the domestic depart- ment, to which the wife's authority to bind her husband is re- stricted,^ and she can pledge her husband's credit for necessaries only in case of real necessity.'' But we must observe that the question is, after all, one of evi- dence ; it turns upon the question of authority from the husband ; and this presumption in the wife's favor may be rebutted by con- trary testimony on the husband's behalf.* Lord Holt says, " His assent shall be presumed to all necessary contracts, upon the account of cohabiting, unless the contrary appear." ° And in the leading of a wife to bind her husband for & Man. 559; M 'George v. Egan, 7 necessaries, where it exists, is for her Seott Cases, 113. own benefit, and not for the benefit 1. 1 Sid. 128 ; Jewsbury v. Newbold, of those with whom she may deal. 40 E. L. & Eq. 518. Zent V. SuUivan, 47 Wash. 315, 91 P. 2. Phillipson v. Hayter, L. E. 6 C. 1088, 13 L. R. A. (N. S.) 244. P. 38. 97. Emmet v. Norton, 8 Car. & P. 3. Dolan v. Brooks, 168 Mass. 350, 506. 47 N. E. 408'; Steinfield v. Girrard, 98. Watts V. Moffett, 12 Ind. App. 103 Me. 151, 68 A. 630; Eder v. 399, 40 N. E. 533 ; Steinfield v. Gir- Grifka, 149 Wis. 606, 136 N. W. 154. rard, 103 Me. 151, 68 A. 630 ; Howell 4. Lane v. Ironmonger, 13 M. & W. V. Blesh, 19 Okla. 260, 91 P. 893; 368. Clifford V. Laton, 3 Car. & P. 15, 5. Etherington v. Parrott, 1 Salk. per Lord Tenterden; Debenham v. 118. See also, to the same effect, Holt Mellon, L. E. 5 Q. B. D. 394. v. Brien, 4 B. & Aid. 252 ; McCutehen 99. 2 Bright Hus. & Wife, 9; cases v. MeGahay, 11 Johns. 281; and note cited in note to Filmer v. Lynn, 4 Nev. by Am. editor to Bing. Inf. 187. The § 93 HUSBAND AND WIFE. 116 case of Montague v. Benedict, the court observes : " Cohabitation is presumptive evidence of the assent of the husband, but it may be rebutted by contrary evidence; and when such assent is proved the wife is the agent of the husband duly authorized." * The presump- tion is not rebutted by evidence that he told her to get the articles at a different place.' The usual analogies of agency may be transcended, notwithstand- ing the spouses live together, where the one is truly delinquent, and the other deprived of the support owing her. Wherever the hus- band neglects to supply his wife with necessaries, or the means of procuring them, she may obtain what is strictly needful for her support, although it be against his wishes, on the pledge of his credit. And the person furnishing the articles may sue the hus- band notwithstanding he has been expressly forbidden to trust her.' But here the law raises a presumption of agency only for the pur- pose of enforcing a marital obligation. Such an agency is perhaps an agency of necessity.^ And the tradesman or other party furnish- ing supplies in this case is bound to show affirmatively and clearly that the husband did not provide necessaries for his wife suitable to her condition in life.^" It is held in Massachusetts that a town may supply a wife who is in need of relief,' through the neglect of her husband, and then sue him for necessaries suitable to the con- dition of a pauper, and no more.^^ In 'New York, if the husband be of sufficient ability to support his wife, it would appear that she cannot be supported by the public as a pauper at all.^^ And so in Indiana.^' position assumed by Mr. Story, in his 8. Keeler v. Phillips, 39 N. T. 351; ■work on Contracts, that, as to the Cromwell v. Benjamin, 41 Barb. (N. ■wife's necessaries, "the law raises Y.) 558; Woodward v. Barnes, 43 Vt. an wncontrollable presumption of as- 330. sent on the part of the husband," is 9. PoUock, C. B., in Johnston v. . therefore incorrect. Story Contr., 2d Sumner, 3 H. & N. 361, likens the ed., § 97. "What the law does infer agency under such circumstances to is, that the wife has authority to con- that which the captain of a ship some- tract for things that are really neees- times exercises. sary and suitable to the style in which 10. Keller v. Phillips, 39 N, T. 351; th3 husband chooses to live, in so far Cromwell v. Benjamin, 41 Barb, as the articles fall fairly within the (N. T.) 558 ; Woodward v. Barnes, 43 domestic department which is ordi- Vt. 330. narily confided to the management of 11. Monson v. Williams, 6 Gray the wife." Willes, J., in Phillipson v. (Mass.), 416. And see Euniney v. Hayter, L. E. 6 C. P. 38. And see Keyes, 7 N. H. 571. Bovill, C. J., ib., to the same effect. 12. Norton v. Ehodes, 18 Barb. (N. e. Montague v. Benedict, 3 B. & C. T.) 100. 631. 13. Commissioners v. Hildebrand. 1 7. Jones v. Gutman, 88 Md. 355, 41 A. 792. 117 NECESSABIES. § 96 § 94. Rule of Good Faith. Courts will always regard the rule of good faith in matters rela- tive to the wife's necessaries. Thus if the husband and wife be living apart without the husband's fault, and he wishes to terminate his liability by requesting her to return home, his conduct must show sincerity; though, if his intentions are bona fide, and he makes suitable provision at his own home, the wife forfeits all claim to further support by refusing to return.^* So where a hus- band expels his wife and afterwards designedly misleads her into the belief that he is dead, whereupon she marries another with honest motives, and leaves him at once on learning that her husband is alive, her husband cannot set up her bigamy as a defence to an action against him for her subsequent necessaries.^' § 95. Effect of Infancy. An adult husband is bound on the contracts of his minor wife for necessaries.^' And a minor husband is liable for necessaries furnished his wife, whether she be minor or adult." The ordinary rules of husband and wife, therefore, apply so far as such neces- saries are concerned. If old enough to contract marriage, an infant is presumed old enough to pay for his wife's board and lodging as well as his own. And such claims may be enforced against his estate, though he die under age.^* But with regard to his wife's general contracts it would seem that infancy, which incapacitates him from making contracts in person, also disqualifies him from employing an attorney. § 96. Effect of Notice not to Sell to Wife. As a rule, a husband who furnishes his wife and family with necessaries, in any reasonable manner, has the right to prohibit particular persons from trusting or dealing with her on his account. IN'otice to this effect, properly given, will be effectual as against any presumption which cohabitation raises.^' And notice given to a tradesman's servant has been held sufficient notice to the 14. Walker v. Laighton, 11 Fost. (Del.) 428. And see Bush v. Lindsay, (N. H.) 111. 14 Ga. &87. 15. Cartwright v. Bate, 1 Allen 18. lUd. (Mass.) 514. See Pidgin v. Cram, 8 19. B. Altman & Co. v. Durland, 173 N. H. 350. N. T. S. 62; Hibler v. Thomas, 99 16. Nicholson v. Wilborn, 13 Ga. 111. App. 355; MeCntchen v. MoGahay, 467. 11 Johns. (N. Y.) 281; Keller v. PhU- 17. Cantine v. Phillips, 5 Harping. lips, 39 N. Y. 351. § 96 HUSBAND AND WIFE. 118 master. But notice given in the newspapers not to trust a wife is held to be of no effect against such as have not had actual notice.*" l^or is a successful defence against one bill sufficient notice of pro- hibition against subsequent bills.^^ In order to bind the husband for goods furnished after notice to cease furnishing, the seller must show not only that the articles he furnishes are necessaries, but that the husband failed to supply them properly.^* Generally, in such oases, it has been said the burden of proof is upon the husband.^* Such a statement, however, must be taken with caution. Cohabitation furnishes, as we have seen, a presump- tion of authority; but the latest English decisions go very far towards annihilating that presumption by insisting that the ques- tion of the wife's express or implied authority is purely one of fact according to the circumstances of each case, where the spouses live together. And the English court of appeals for such cases ** has lately affirmed a lower tribunal,^' as though to dispense very con- siderably with the necessity of notice to tradesmen on the part of a husband who means to supply his wife properly, and at the same time prevent her from pledging his credit. The point decided, however, affects only tradesmen and others who have had no pre- vious dealings with the wife, to which the husband's assent was given ; and as to such persons it is ruled that theT husband being able and willing to supply his wife with necessaries, and having actually forbidden her to pledge his credit, he cannot be held liable for what she buys, even though no notice, express or implied, has been received of the prohibition.*" This decision, after all, is not directly contrary to the rules of agency, as we apprehend, but operates so as to make the vnfe a sort of special agent. It disposes of an idea formerly entertained by many, that the wife might pledge her husband's credit for articles termed necessaries to any one, unless the husband, by publication or otherwise, bad affected 20. Walker v. Laighton, 11 Fost. decision upon Johnston v. Sumner, 3 (N. H.) Ill ; W. & J. Sloane v. Boyer, H. & N. 361. 95 N. T. 8. 531; Menschke v. Riley, 25. Jolly v. Bees, 15 C. B. (N. S.) 159 Mo. App. 331, 140 S. W. 639 &2S. 21. Ogden v. Prentice, 33 Barb. (N. 26. Debenham v. Mellon, L. R. 5 Q. T.) 160. B. D. 394. The opinion of Bramwell, 22. Barr v. Armstrong, 56 Mo. 577. L. J., in this case is worthy of careful 23. Tebbets v. Hapgood, 34 N. H. perusal. The same principle is con- 420. firmed in this country by Woodward v. 24. Debenham t. Mellon, L. E. 5 Barnes, 43 Vt. 330. But cf. Cothran Q. B. D. 394. Doubt is thrown by this v. Lee, 24 Ala. 380. 119 NECESSARIES. § 97 the seller ■with notice of his dissent ; and it requires those who have had no previous dealings of the kind to make inquiry, at their peril, as to the vpife's actual authority or destitute condition before they rely upon it. They who have already furnished supplies to the wife on the husband's credit with his knowledge, and who have come thus within the apparent scope of her agency to bind him, may, we presume, continue doing so, until death or suitable notice of the husband's dissent operates as a revocation of that agency. § 97. Effect of giving Credit to Wife or Third Party. The presumption of an agency on her husband's behalf may be overcome by the fact of a purchase by the wife upon her own or some third person's credit ; wherever she is really trusted as prin- cipal herself, or as the agent of some one else than her spouse ; or where the third person ordered them in person.^^ In all cases the husband will be discharged from liability where it appears that the goods were not supplied on his credit, but that the party furnishing them trusted the wife individually.** She might have separate property, independently of her husband, to which the tradesman looked for payment, or a special allowance of sufficient amount might have been made her by her husband.*' Thus, where the husband during a temporary absence made an allowance to his wife, he was held not to be liable for necessaries supplied to her, the tradesman having trusted to payment from her allowance.*" So if credit be given to a third party, the husband is not liable.*^ And, of course, if the tradesman has agreed not to charge him, there is no liability incurred by the husband.** Though the wife be without property, the rule is the same; and it would appear that the husband may give permission to trust his wife on her separate credit without incurring liability." 27. Though as to the right of her Simmons v. MeElwain, 26 Barb, father or any other third person to (N. T.) 4B0; McMahon v. Lewis, 4 stand in place of a tradesman, under Bush (Ky.), 138; Weisker v. Lowen- proper circumstances of necessity, see thai, 31 Md. 413. supra, 87. 30. Holt v. Brien, 4 B. & Aid. 252; 28. Metcalfe v. Shaw, 3 Camp. 22 ; Montague v. Benedict, 3 B. & C. 631 ; Bentley V. Griffin, 5 Taunt. 356; Pear- Harshaw v. Merryman, 18 Miss. 106; son V. Dairington, 3Z Ala. 237 ; Stam- Benaux v. Teakle, 20 E. L. & Eq. 345. mers v. Macomb, 2 Wend. 454; Moses 31. Harvey v. Norton, 4 Jur. 42. V. Torgartie, 2 Hill (8. C), 335; 32. Dixon v. Hurrell, 8 Car. & P. Carter v. Howard, 39 Vt. 106 ; Bugbee 717. V. Blood, 48 Vt. 497. 33. Taylor v. Shelton, 30 Conn. 122. 89. lievett v. Penriee, 84 Miss. 416 ; § 98 HUSBAND AND WIFE. 120 That the wife has a separate income, that the invoices are made out to her, that the plaintiff has drawn bills of exchange upon her for part-payment of the amount due, and that she has accepted such bills in her own name, payable at her own banker's from her separate funds, — all these are circumstances which go to repel the presumption of agency and show that the wife was purchasing on her own credit with the tradesman's assent.** So is the studious concealment of the purchases from the husiband's knowledge, by the tradesman and the wife, and the attempt of the latter to secure the debt by her own promissory note.*° All these are facts for the jury, and if the husband has been prejudiced in his rights by such proceedings, this is in his favor.''* The husband is not relieved by the single circumstance that the goods were charged on the shop books to the wife; since prima facie the actual credit is always supposed to be given to the husband.'^ § 98. Effect of Money Provision for Wife. I^ot only is the husband permitted to show that articles in con- troversy are not such as can be considered necessaries, but he may show that he supplied his wife himself or by other agents, or that he gave her ready money to make the purchase.*' Some courts hold that where a husband makes a suitable provision of cash to pay for the wife's necessaries, he will not be liable for other goods sold in the absence of evidence that he authorized or ratified the sale,*® especially where, after making the allowance, he forbids her 34. Freestone v. Butcher, 9 Car. & v. Brooks, 5 Harring. (Del.) 396; P. 643 ; Maeq., Hus. & Wife, 135. Furlong v. Hyson, 35 Me. 333 ; H. 35. Mitchell v. Treanor, 11 Geo. 324. Leonard & Sons v. Stowe, 166 Mich. But see Day v. Bumham, 36 Vt. 37, 681, 133 N. W. 454. •which regards such connivance some- 38. Manby v. Scott, 1 Sid. 109; 2 •what kindly. 3mith 's Lead. Cas. (6th Am. ed) . 469 ; 36. Attorney-General v. Riddle, 8 Etherington v. Parrott, 2 Ld. Baym. Cr. & Jer. 493; 3 Tyr. 533; Barnes 1006. ■V. Jarrett, 2 Jur. 988. 39. James McCreery & Co. v. Mar- 37. Edministon v. Smith, 13 Ida. tin, 84 N. J. La'w, ©26, 87 A. 433; 645, 92 P. 843; Warrington v. Ana- Wanamaker v. Weaver, 176 N. Y. 75, ble, 84 m. App. 593; Johnson v. 68 IST. E. 135, 98 Am. St. E. 621; Briscoe, 104 Mo. App. App. 493, 79 Frank v. Carter, 219 N. T. 35, 113 S. W. 498 ; Martin v. Oakes 42 Misc. N. E. 549 ; Stevens v. Hush, 176 N. 201, 85 N. Y. S. 387; Best & Co. v. Y. S. 602; Best & Co. v. Cohen, 174 Cohen, 174 N. Y. S. 639; B. Altman N. Y. S. 639; Jones v. Bernstein, 177 & Co. V. Durland, 173 N. Y. S. 62; N. Y. S. 155; Quinlan v. Westervelt, Wiekstrom v. Peck, 163 App. Div. 65 Misc. 547, 120 N. Y. 8. 879 ; Wein- 608, 148 N. Y. S. 596; Jewsbury v. green v. Beokton, 102 N. Y. S. 520; Ne'wbold, 40 E. L. & Eq. 518; Godfrey Eoaenfield v. Peck, 134 N. Y. S. 392; 121 NECESSARIES. § 99 to open credit accounts.*" Where a husband compels his wife to live apart from him by his misconduct, he is liable for her neces- saries, notwithstanding the fact that he makes her her allowance, so long as that allowance is insufficient, and she has no proper means of support.*^ Making such a provision for his wife does not relieve him of his duty except where the fact is known to the creditor.*^ Where she habitually clothes herself out of her private estate, it may be deemed a provision which will relieve her husband of liability.''^ In such case it is not material that the creditor did not know of the provision.** § 99. Effect of Husband's ratification of Wife's unauthorized purchases. Another point, as we have already suggested, is available by the person who has furnished necessaries, on the general principles of agency ; namely, that a husband's subsequent ratification is as good as a previous authority. So, then, if it can be shown that the husband knew his wife had ordered certain necessaries, and yet failed to rescind the purchase; or if there be proof that he knew she wore the articles and yet expressed no disapprobation ; the law presumes approval of her contract and binds him.*' To this prin- ciple, perhaps, may be referred the rule which Mr. Eoper further states (without, however, citing any authorities), that the husband is liable whenever the goods purchased by his wife come to her or his use with his knowledge and permission, or when he allows her to retain and enjoy them; in other words, that a legal liability Kenny v. Meislahn, 69 App. Div. 572, v. Mansfield, 239 Mass. 353, 118 N. E. 75 N. T. 8. 81. 652. Where a husband's estate amounted 41. Litson v. Brown, 26 Ind. 469; to less than $300,000, and his income Baker v. Sampson, 14 C. B. (N. S.) was about $20,000, an allowance of 383. $1,200 or $1,300 a month to his wife 42. Titzmauriee v. Buck, 77 Conn, living expenses was sufficient to re- 390, 59 A. 415; Cory v. Cook, 34 E. lieve him from liability for articles I. 421, 53 A. 315. of clothing furnished her and not 43. Dolan v. Brooks, 168 Mass. 350, paid out of her allowance. Oatman v. 47 N. E. 408. Watrous, 120 App. Div. 66, 105 N. Y. 44. Dolan v. Brooks, 168 Mass. 350, S. 174 ; Green v. Karp, 164 N. T. 8. 47 N. E. 408 ; Meyer v. Jewell, 88 N. 670; B. Altman & Co. v. Durland, 173 ^'. 8. 972. N. T. S. 62; Lit Bros. v. Hare, 69 Pa. 45. Seaton v. Benedict, 5 Bing. 28; Super. Ct. 372, 2 Moo. & P. 74; Parke, B., in Lane v. 40. MeCreery v. Martin (N. J.) 87 Ironmonger, 13 M. & W. 368; Day Atl. 433, 47 L. 8. A. (N. 8.) 279. It v. Burnham, 36 Vt. 37; Woodward v. has been held otherwise in Massachu- Barnes, 43 Vt. 330; Ogden v. Prentice, setts as to medical services. Vaughan 33 Barb. (N. T.) 160. § 99 HUSBAND AND WIFE. 122 becomes fixed from the fact that the husband and his household take the benefit of the purchase.*' But the mere fact that a hus- band sees his wife wearing articles purchased without authority will not charge him ; the question is one of approval or disapproval, assent or dissent, and the presumption against him may be rebutted." The husband's dissent to his wife's purchase of necessaries should be expressed in an effectual and suitable manner. Mere objection on his part is insufficient. Thus a bill for medical attendance must be paid by him, even though he objected to the visits, as long as he was present and gave no notice to the physician that the latter must look elsewhere for payment.** And private arrangements between husband and wife as to the method of payment cannot affect the rights of third parties, who were entitled to notice thereof and failed to receive it.*° If he means, when sued in assumpsit for necessaries, to defend the action as to part only, it would appear that his proper plea will be that he is not liable beyond a certain amount, and he should pay that amount into court."" But if he means to dispute the charge altogether, common honesty dictates that the articles unwarrantably purchased should be restored with- out delay.°^ He may introduce evidence at the trial to show that the commodities in question were not necessaries, inasmuch as the wife had incurred other similar debts with other parties."* In a word, the question is (in the absence of such evidence of necessity as may sihow an agency in law) whether there was an agency and authority in fact."^ Where she makes a contract for necessaries, and he afterwards makes payments and an offer of settlement, he is liable." 46. 2 Eop. Hub. & Wife, 112; 2 considerably reduce the tradesman's Bright, Hus. A Wife, 9. Mr. Mac- right of notice, as formerly under- queen (Hus. & Wife, note to p. 132) stood. Debenham v. Mellon, L. E. 5 points out this statement of Mr. Roper Q. B. D. 394. with a doubt as to the authority, al- 50. Emmet v. Norton, 8 Car. & P. though he admits the justice of such 506. a rule, on the civil-law maxim that 51. Maeq., Hus. & Wife, 136; Gil- "no one should enrich himself at man v. Andrus, 28 Vt. 241. See another's loss." Tuttle v. Holland, 43 Vt. 542. 47. Atkins v. Curwood, 7 Car. & P. 52. Benaux v. Teakle, 20 E. L. & Eq. 756. 345. 48. Cothran v. Lee, 24 Ala. 380. 53. Bead v. Teakle, 24 E. L. & Eq. 49. lb.; Johnston v. Sunmer, 3 Hurl. 332. & Nor. 261. We have seen, supra, 54. Mott v. Gmnhut, 8 Daly (N. § 96, that the latest English cases T.) 544. 123 NECESSAEIES. § 100 § 100. Effect of Separation in general. It has generally been understood that whenever husband and wife separate, under circumstances showing misconduct on the part of either, the presumption of agency changes sides. The fact of their living apart is of itself a caution to all who hold dealings with a married pair. "While they cohabit it is usually for the husband to show a want of authority ; when they cease to cohabit the seller must prove authority ; that is to say, he must prove that the wife was in need of the goods, that the husband failed to supply her, and that the wife was not at fault. Prima facie, therefore, a woman living apart from her husband, upon either voluntary or involuntary separation,"' has no authority to bind him,'® the separa- tion prima facie revoking her agency,"^ especially if he provides for the family notwithstanding the separation."* This contrast of presuiiiptions is subject to the new English doctrine lately com- mented upon, which seems to put all new tradesmen on their guard in their first dealings with a married woman."' Where the husband is merely absent from home for temporary purposes, the wife's presumed authority continues.'" The hus- band's liability continues where there is no open separation ; '* and where the fact of sepaartion is not commonly known, or where by occasional visits the husband keeps up the appearance of cohab- itation with his wife, he has generally been considered prima facie liable as before ; "' though notice of an allowance is notice of hie dissent to the wife's contracts.*' He may agree with the wife's 55. Johnston v. Sumner, 3 Hurl. & wive living apart from a husband who Nor. 261, per Pollock, C. B., and au- is confined ia an insane asylum has thorities there commented upon presumably no authority to pledge his 56. Etherington v. Parrott, 2 Ld. credit even for necessaries. Thedford Eaym. 1006; Mainwaring v. Leslie, v. Reade, 25 Misc. 490, 54 N. T. S. 1 Mood. & Malk. 18; Montague v. 1007. Benedict, 3 B. & C. 631; per Lord 58. Robinson v. Litz, 123 N. Y. S. Tenterden, Clifford v. Laton, Mood, & 362 ; Cory v. Cook, 24 E. I. 421, 53 Malk. 101; 3 Car. & P. 16; Bird v. A. 315. Jones, 3 M. & B. 121; Walker v. 59. Debenham v. Mellon, L. E. 5 Q. Simpson, 7 W. & 8. (Pa.) 83; Mitchell B. D. 394. V. Treanor, 11 Ga. 324 ; Eea v. Durkee, 60. Frost v. Willis, 13 Vt. 202. 25 111. 503 ; Pool v. Everton, 5 Jones 61. Ball v. Lovett, 98 N. T. S. 815. (N. C.) 241 ; Porter v. Bobb, 25 (Mo.) 62. Eawlins v. Vandyke, 3 Esp. 250, 36; Stevens v. Story, 43 Vt. 327; per Lord Eldon. Stnrtevant v. Starin, 19 Wis. 268. 63. Hinton v. Hudson, Freem. 248 ; 57. Hass V. Brady, 49 Misc. 235, g'6 Kimball v. Keyes, 11 Wend. (N. Y.) N. T. S. 449; Hatch v. Leonard, 71 33. App. Div. 32, 75 N. Y. S. 726. A § 101 HUSBAHD AND WIFE. 124 tradesman, while living apart from her, that the goods supplied shall not be charged to him; and to such special agreement the tradesman will be held.®* Where a husband has given his wife express authority to pledge his credit, the power continues till the particular creditor knows of a separation."" Notice to a creditor that spouses are separated cannot be inferred from the fact that the separation is generally known in the community.*" One fur- nishing a wife necessaries when living apart from him acts at his peril, and must ascertain the facts before giving credit." He has the burden of showing that she left him for cause or that the sepa- ration was by consent,®' and that the husband refused to provide, or that he authorized her to pledge his credit.'® § 101. Effect of Abandonment by Husband. The rule is that where the husband abandons his wife, tufns her away without reasonable cause, or compels her by ill usage to leave him, without adequate provision, he is liable for her necessaries, and sends credit with her to that extent,'" even though she con- tinues to live in his house, which he leaves,'^ and which she and her family have a right to use for their maintenance in such a case.'^ The wife's faithfulness, on the one hand, to her marriage obliga- tions; on the other, the husband's disregard of his own: these afford the reason of the above rule and suggest its proper limitation. The wife in such cases has an authority ; but here what some have called an authority of necessity.'* Or we may say, rather, that the law, by a fiction, infers an agency without asking evidence 64. Dixon v. Hurrell, 8 Car. & P. mand on and refusal by a husband to 717. support his wife may be inferred from 66. Sibley v. Gilmer, 124 N. C. 631, the manner in which he abandoned 33 S. E. 9'64. her, when such that only a refusal 68. Sibley v. Gilmer, 124 N. C. 631, could be expected. Hardy v. Eagle, 32 S. E. 964. as Misc. 441, 51 N. Y. 8. 501, 25 67. Porter v. Bobb, 25 Mo. 36; Ben- Misc. 471, 54 N. T. S. 1045; Hass v. nett V. O 'Fallon, 2 Mo. 69, 23 Am. Brady, 49* Misc. 235, 96 N. Y. S. 449. Dee. 440; Bostwick v. Brower, 33 70. Peck v. Gibeson, 83 111. App. Misc. 709, 49 N. Y. S. 1046; Allen v. 93; Prescott v. Webster, 175 Mass. Rieder, 41 Pa. Super. 534. 316, 56 N. E. 577. 68. Cline v. Buddemeier, 164 HI. 71. W. & J. Sloane v. Boyer, 95 N. App. 79; Steele v. Leyhan, 310 111. Y. S. 531. App. 201; Peaks v. Mayhew, 94 Me. 72. HoUowell v. Adams (Ky.), 119 571, 48 A. 172 ; Clothier v. Sigle, 73 8. W. 1179. N. J. Law, 419, 63 A. 865. 73. See Pollock, C. B., in Johnston v. 69. 8. E. Olson Co. v. Toungquist, Sumner, 3 Hurl. & Nor. 261. 72 Minn. 432, 75 N. W. 737. A de- 125 NECESSAEIES. § 101 which should show authority in fact, and requires the husband, under these circumstances, to maintain his wife elsewhere. This rule suggests, then, three cases where the wife may pledge her husband's credit when they are living apart : the first, where he abandons her; the second, where he turns her out of doors without reasonable cause ; the third, where his misconduct compels her to leave him. In the first two cases his own acts impose the necessity, and her conduct is involuntary. But in the third her conduct might be considered voluntary, though induced by his mis- conduct ; and the rule here becomes perplexing. The doctrine of Hortvood V. Heffer, an old case, is that the wife is not justified in leaving her husband unless she has been driven from the house by actual violence or apprehension for her personal safety; and in this case the husband was held not to be liable, since she had quitted his house because he placed a profligate woman at the head of the table.'* This doctrine has been strongly condemned in later times, and the modern cases justly regard such studied insults as capable of legal redress. If, therefore, the husband, by his indecent con- duct, renders his house unfit for a modest woman to share it, the rule now is that she may leave him, and pledge his credit elsewhere for her necessaries.''^ Where the wife is justified on any of the above grounds in living apart from her husband, he is not discharged from liability by showing that her contract was in fact made without his authority and contrary to his wishes. Nor will his general advertisement or particular notice to individuals not to give credit to his wife affect the case.''® The legal presumption must prevail for the wife's protection. N'or in such cases can the husband terminate his liability for necessaries supplied his wife during the separation, by a simple request on his part that she shall return.^' And it is clear that if he only offers to take her back upon conditions which are unreason- able and improper, his liability continues." It is the husband's 74. 3 Taunt. 431. 76. Harris v. Morris, 4 Esp. 41; 1 75. Per Lord Ellenborough, Liddlow Selw. N. P. 298, 11th ed.; 2 Stra. T. Wilmot, 2 Stark. 77 ; 1 Selw. N. P. 1214. See Black v. Bryan, 18 Tex. 29S, 11th ed.; per Best, C. J., Houlis- 453. ton V. Smyth, 3 Bing. 127; 10 Moo. 77. Emery v. Emery, 1 Ton. & Jer. 482 ; 2 Car. & P. 22 ; Descelles v. Kad- 501. mus, 8 Clarke, 51 ; Hultz v. Gibbs, 66 78. Eeed v. Moore, 5 Car. & P. Pa. 360; Eeynolds v. Sweetser, 15 200. Gray (Mass.) 78; Bazeley v. Porder, L. E. 3 Q. B. 559. § 102 HUSBAND AND WIFE. 126 duty, by some positive act, to determine his liability ; though if the wife voluntarily returns, his liability for necessaries furnished abroad is discontinued. But in default of any amicable arrange- ment, he must institute proceedings in the courts with divorce juris- diction. And until some such unequivocal act is done, a person making a proper claim in a court of law for necessaries supplied to the wife may be entitled to recover against him." § 102. Effect of Abandonment by Wife. Generally a wife living apart from her husband for justifiable cause may pledge his credit for necessaries for herself and his children.*" If she has cause for leaving her husband she may select her residence if respectable, and if the expense is suited to her husband's financial condition.*^ He is not relieved by showing that when she left him he procured board and lodging for her with a person with whom she refused to live ; *^ nor that he asks her to return, and makes promises of kind treatment,*" or that she seeks a divorce.** Where the wife had good reasons for leaving, the husband is not discharged by the fact of her subsequent return from liability for necessaries furnished during her justifiable absence.** But the wife should have weighty and sufiicient cause for leaving her husband in order to be permitted to pledge his credit abroad. In general, the same facts suffice as justify divorce from bed and 79. Eeed v. Moore, supra. See At- Misc. 441, affd. 51 N. T. S. 501 ; Har- kyns V. Pearce, 2 C. B. (N. 8.) 763. rigan v. Cahill, 100 Misc. 48, 164 N. 80. Bonney v. Perham, 102 HI. App. T. 8. 1005; Dodge v. Holbrook, 176 634; Wasmuth v. MoDonald, 96 111. N. T. 8. 562; Charles M. Decker & App. 242; Kirk v. Chinstrand, 85 Bros. v. Meyer, 131 N. T. 8. 630; Minn. 108, 88 N. W. 422; 8ultan v. Monahan v. Auman, 39 Pa. 8uper. Misrahi, 47 Misc. 655, 94 N. T. 8. 150; 2 Kent, Com. 146, 147; 2 Bright, 519; Brinckerhoff v. Briggs, 92 111. Hus. & Wife, 10t13; 8nover v. Blair, App. 537; In re Eudowsky's Estate, 1 Dutch. (N. J.) 94; Mayhew v. 181 111. App. 318; Litson v. Brown, 26 Thayer, 8 Gray (Mass.) 172. Ind. 489; 8cott v. Carothers, 17 Ind. 81. Kirk v. Chinstrand, 85 Minn. App. 673; Arnold v. Brandt, 16 Ind. 108, 88 N. W. 432, 56 L. R. A. 333. App. 169, 44 N. E. 936; Eariden v. 82. Kirk v. Chinstrand, 85 Minn. Mason, 30 Ind. App. 425, 65 N. E. 108, 88 N. W. 422, 56 L. E. A. 333. 554; In re Newman's Case, 223 Mass. 83. Baker v. Oughton, 130 la. 35, 563, 111 N. E. 359; Beaudette V. Mar- 106 N. W. 272; Bradish v. Huse, 1 tin, 113 Me. 310, 93 A. 758; East v. Dane Abr. (Mass.) 355. King, 77 Miss. 738, 27 So. 608 ; Ott v. 84. Gleason v. Warner, 78 Minn. Hentall, 70 N. H. 231, 47 A. 80, 51 L. 405, 81 N. W. 206 (funeral expenses). E. A. 236; Clothier v. Sigle, 73 N. J. 85. Eeynolds v. Sweetser, 15 Gray Law, 419, 63 A. 865; Hardy v. Eagle, (Mass.) 78. 25 Misc. 471, 54 N. T. S. 1045, 23 127 NECESSAEIES. § 102 board.'* But where she leaves her husband without sufficient cause and against his will, he is not liable for her maintenance elsewhere, and she cannot bind him ; especially if the person fur- nishing goods knows that cohabitation has ceased, and makes no further inquiries.*^ Supposing the wife leaves voluntarily and without sufficient cause, against her husband's wishes, and she afterwards returns to her husband, is he bound to receive her ; and, if he refuse to receive her, can she make him liable for debts contracted thenceforth for necessaries? The current of authorities is in favor of such a position, provided she conducted herself properly in her absence.** Some, however, have suggested doubts as to this doctrine ; for, they say, since the wife by her own voluntary act discharged the husband from his obligation to maintain her, by unnecessarily quitting his house without his consent, it is but reasonable to say that his lia- bility to support her afterwards should not be revived by implica- tion without his express concurrence in consenting to his wife's return to his protection, or until cohabitation was restored by mutual agreement, or by the sentence of a court with appropriate matrimonial jurisdiction.'" This is fair reasoning on general grounds, and applies a mutual doctrine to husband and wife; but the courts appear to have thought otherwise. There is a dictum of Lord Holt to be found in an old case (or 86. Brown v. Patton, 3 Humph. field v. Girrard, 103 Me. 151, 68 A. (Tenn.) 135; Hancock v. Merrick, 10 630; B. Altman & Co. v. Durand, 173 Cush. (Mass.) 41 ; Caney v. Patton, 2 N. Y. S. 62 ; Constable v. Eosener, 83 Ashm. 140; Bea v. Durkee, 25 111. 503; App. Div. 155, 81 N. Y. S. 376, affd. Sehindel v. Schindel, 12 Md. 294; 178 N. Y. 587, 70 N. E. 1097; Ogle v. Stevens v. Story, 43 Vt. 327; Barker Dershem, 91 App. Div. 551, 86 N. Y. V. Dayton, 28 Wis. 367; Thorpe v. S. 1101; Cline v. Hackbarth, 27 Tex. Shapleigh, 67 Me. 235. Civ. 391; Sanger Bros. v. Trammel 87. Brown v. Midgett, 40 Vt. 68; (Tex.), 198 S. W. 1175. Etherton v. Parrott, 2 Ld. Eaym. 88. Manby v. Scott, 1 Sid. 129; 1 1006; Manby v. Scott, 1 Sid. 130; Mod. 131 ; Child v. Hardyman, 2 Stra. Bailey v. Calcott, 4 Jur. 699; Collins 875; Rawlins v. Vandyke, 3 Esp. 251 V. Mitchell, 5 Harring. 369; Bevier v. Edwards v. Towels, 5 Man. & 6r. 624 Galloway, 71 111. 517; Harttman v. Hindley v. Westmeath, 6 B. & C. 200 Tegart, 12 Kan. 177; Oinson v. Howard v. Whetstone, 10 Ohio 365 Heritage, 45 Ind. 73 ; Thome v. McCutehen v. McGahay, 11 Johns. (N. Kathan, 51 Vt. 520; Denver Dry N.) 281. Goods Co. V. Jester, 60 Colo. 290, 152 89. See 2 Bright, Hus. & Wife, 13. Pac. 903, L. E. A. 1917A 957; Bensyl But see 2 Bish., Mar. & Div., 5th ed., V. Hughs, lOff 111. App. 86; Bonney v. § 33. The husband should not be de- Perham, 102 111. App. 634 ; Peaks v. prived of his divorce remedies. Mayhew, 94 Me. 571, 48 A. 172 ; Stein- § 103 HUSBAND AND WIFE. 128 rather in the reporter's note), which, sometimes finds its way to the text-books; namely, that if a husband receives back his wife, he becomes liable for her debts contracted during the whole period of her unauthorized absence.®" This seems very unreasonable, where the fault was on her part. The true doctrine is, doubtless, that after such reconciliation the husband is liable upon her subse- quent contracts only. And this is the rule expressly asserted in some American cases.®^ To defeat a wife's claim of support on the ground of her voluntary abandonment of the husband's domi- cile, the fact of her abandonment must clearly appear.'^ Under the Iowa statute neither spouse can drive the other from the home- stead without such other's consent, hence when a husband does this he is bound for the wife's necessaries regardless of the cause of her exipulsion.** § 103. Effect of Separation by Consent. But besides involuntary separation there is the case of voluntary separation to be considered. This last, now so frequent, the law tolerates, but does not favor. The rule is, that where a husband and wife parted by mutual consent, and a suitable allowance is fur- nished the wife, the husband is not bound to pay any bills which she may have contracted as his agent.®* It is enough that the sepa- ration be a matter of common reputation where he resides. But to this allowance two things are requisite : first, that it shall be really sufficient for the wife ; second, that it shall be regularly paid. If either requirement be wanting, — a fact which the seller must ascertain at his peril, — the wife is not confined to her remedy on the deed of separation, if any, but may pledge her husiband's credit. As to the first requirement, the question is not whether the wife consented to accept a certain allowance as sufficient for her support, 90. Eobiaon v. Gosnold, 6 Mod. 171. 717; Todd v. Stokes, 1 Salk. 116; 1 See Bing. Inf, 190 n., Am. ed. Ld. Eaym. 444; Hindley v. West- 91. Williams v. Prince, 3 Strobh. meath, 6 B. & C. 20O; Mizen v. Pick, 490; Eeese v. Chilton, 2'6 Mo. 598; 3 M. & W. 481; Eeeve v. Marquis of Oinson v. Heritage, 45 Ind. 73. See Conyngham, 3 Car & K. 444; Calkins also Chitty Contr., 168; Williame T. v. Long, 22 Barb. (N. Y.) 97; Kemp MeGahay, 12 Jolms. (S. C.) 293. v. Downham, 5 Harring. (Del.) 417; 92. Price v. Price, 75 Neb. 552, 106 Caney v. Patton, 2 Ashm. 140 ; Baker N. W. 657. V. Barney, 8 Johns. (N. T.) 72 ; Mott 93. Baker v. Oughton, 130 la. 35, v. Comstock, 8 Wend. (N. Y.) 544; 106 N. W. 272. Willson v. Smith, 1 B. & Aid. 801 ; 94. Dixon v. Hurrell, 8 Car. & P. Pensyl v. Hughs, 109 111. App, 86. 129 NECESSAHIES. § 103 but whetlier it be actually sufficient in tbe opinion of the jury."'' As to the second, the mere covenant or contract of the husband to pay separate maintenance will not discharge him from liability for necessaries ; for, as was observed in a leading case, " the common law does not relieve any man from an obligation on the mere ground of an agreement to do something else in the place, unless that agree- ment be performed." ®° But perhaps it would be held otherwise where articles of separation provide that the wife shall be paid through a trustee, and the trustee squanders or misapplies the allowance which is properly paid into his hands.®' If wife and husband part by mutual consent, and there is no allowance to the wife, it may be presumed that the wife has the right to pledge her husband's credit, for he has not relieved himself of his marital obligation."* It is immaterial whether the wife's allowance be secured by deed or not, since it is the payment which discharges him.*° Here we are compeleld to notice a modern departure of principle growing out of the increasing favor with which separation deeds are held. Allowance of maintenance by a formal separation deed appears under the latest English decisions to be treated with so great respect as to be deemed conclusive of the extent and method of a husband's liability for his wife's supjDort during their separa- tion. In other words, the separation being by mutual consent, and the allowance fixed by mutual assent at a rate which it is covenanted shall suffice for the wife's support, the wife cannot pledge her husband's credit in case that income proves insufficient for her wants.^ Allowance of a separate maintenance will not exempt the hus- 95. Bonney v. Perham, 103 111. App. 98. Boss v. Ross, 69 111. 569. 634; S. E. Olson Co. v. Youngquist, 99. Hodgkinson v. Tletcher, 4 Camp. 76 Minn. 26, 78 N. W. 870; Thomp- 70; Emery v. Neighbor, 2 Halst. (N. son V. Harvey, 4 Burr. 2177; Hodg- J.) 142; Holden v. Cope, 2 Car. & kinson v. Fletcher, 4 Camp. N. P. 70 ; K. 437. But see Ewers v. Hutton, 3 Pearson v. Darrington, 32 Ala. 227; Eep. 255. Liddlow v. Wilmot, 2 Starkie, 77; 1. Eastland v. Burchell, L. R. 3 Q. Emmet v. Norton, 8 Car. & P. 506. B. D. 432. Qu. whether the wife has 96. Nurse v. Craig, 5 B. & P. 148, any remedy afforded her under such per Heath, J. ; Hindley v. Westmeath, circumstances for procuring the main- 6 B. & C. 200; Lockwood v. Thomas, tenance which it continues the hus- 12 Johns. (N. Y.) 248; Kimball v. band's duty to render. Lush, J., in Keyes, 11 Wend. (N. Y.) 33. this case seems to rest the wife's gene- 97. Calkins v. Long, 32 Barb. (N. ral right to pledge her husband's Y.) 97. But see Burrett v. Booty, 8 credit too exclusively upon the doc- Taunt. 343. trine of agency. 9 § 104 HUSBAND AND WIFE. 130 band from liabilities caused by his own misconduct.* In case of a separation by consent, if the contract did not provide for the support of the children the husband is liable for necessaries for them.' § 104. Effect of Wife's Adultery. But, as the reader may have inferred, if the wife elopes and then commits adultery, or if her adultery causes separation, the husband becomes relieved from her support. Her crimes ought to put an end to her authority to bind the injured spouse, and it does.* In such case his refusal to t^ake her back again will not revive his obligation to maintain her. But as forgiveness always interposes a bar to legal remedies on behalf of the injured one, he becomes once more liable for her necessaries, where he voluntarily receives her again and forgives her." There are cases where the marital rights and duties become more confused. Supposing the wife be turned out of doors, or, what amounts to the same thing, be forced by her husband's misconduct to leave ; and she afterwards, being beyond that shelter which every wife needs, commit adultery : is he then relieved from supporting her ? In Govier v. Hancock it was held that he was, even though his own adultery caused her departure.' This was a very harsh decision. The court, however, admitted that necessaries furnished before her own adultery could be recovered from her husband. And in a subsequent case it was held that adulterous conduct of the wife, with the connivance of the husband, or at least without such a separation of the married pair as to make her misconduct notorious, would not, per se, operate as a defence and protect the husband from liability.' And more to the point is a case where the husband was held liable, even though the wife had been found guilty of adultery in the divorce court ; since it appeared that he also had been found guilty of adultery, so that no divorce was decreed.* 2. Turner v. Bookes, 10 Ad. & El. 5. Harris v. Morris, 4 Esp. 41 ; Bobi- 47. son V. Gosnold, 6 Mod. 171; Holt T. 3. McCarter v. McCarter, 10 Ga. Brien, 4 B. & Aid. 252; Quiney t. App. 754, 74 S. E. 308. Quiney, 10 N. H. 272; HaU v. Hall, 4. Morris v. Martin, 1 Stra. 647; 4 ib. 462. Manwaring V. Sands, 2 Stra. 707; Har- 6. Govier v. Hancock, 6 T. E. 603. die V. Grant, 8 Car. & P. 512. And 7. Norton v. Fazan, 1 B. & P. 226. see Bex v. Plintan, 1 B. & Ad. 227; 8. Needham v. Brenmer, L. E. 1 C. Hunter v. Boucher, 3 Pick. (Miss.) P. 583. e89 ; Gill V. Bead, 5 E. I. 343 ; Cooper v. Lloyd,: C. B. (N. S.) 519. 131 NECESSAEIES. § 106 But one who harbors another man's wife for illicit purposes is a wrong-doer, and cannot recover for her maintenance, even though she had fled from her own husband's cruelty.* § 105. Effect of Divorce and Allowance of Alimony. Where the divorce court takes jurisdiction for the purpose of legalizing a separation of spouses, judicial action upon the wife's support changes the state of the case. Alimony now becomes the regular standard of allowance for necessaries ; and hence the pay- ment of alimony, even if actually insufficient for the wife's main- tenance, will discharge the husband from further liability for her support.^" The same is true where the wife has been denied ali- mony.^^ If the alimony be insufficient, the wife should induce the court to increase it. But the husband is liable for necessaries sup- plied to the wife before alimony is decreed, even although, as it is held, the decree afterwards direct the alimony to commence from a day preceding the supply of the necessaries.^" One who sells to a wife living apart is chargeable with knowledge of the allotment of alimony, and this applies to alimony pendente lite.^' § 106. Effect of Banishment, Insanity or Imprisonment. The destitute wife of a lunatic living separate from her in an asylum may yet pledge his credit for necessaries ; " though not, of course, for what she does not need, as where, for example, she receives sufficient income out of his estate.^' She cannot pledge, it might seem, where he is banished or in prison, provided the law recognize her as feme sole; ^^ but as an agent of necessity, and to compel his marital obligation, she ought to be permitted to do so if she desires, and not unfrequently does where he is in jail or prison.^' If the wife be in an insane asylum, the husband is not 9. Almy v. Wilcox, 110 Mass. 443. 14. Eeed v. Legard, 4 E. L. & Eq. 10. Willson V. Smyth, 1 B. & Ad. 523; Shaw v. Thompson, 16 Pick. 801. (Mass.) 198; Badger v. Orr, 1 Ohio- 11. Simpson v. Butcher, 123 N. T. App. 293, 34 Ohio Cir. Ct. 328. S. 340. 15. Chappell v. Nunn, 41 L. T. (N. 12. Keegan v. Smyth, 5 B. & C. 375; S.) ZS7; Eichardson v. Du Bois, L. E.. Mitchell V. Treanor, 11 Ga. 324; Dowe 5 Q. B. 51. V. Smith, 11 Allen (Mass.) 107; Bur- 16. Eeeve Dom. Eel. 86. kett v. Trowbridge, 61 Me. 251. 17. See Ahem v. Easterby, 42 Conn. 13. Hare v. Gibson, 32 Ohio St. 33; 546. The husband is liable for his Maiden Hospital v. Murdook, 218 wife 's necessaries, even though she has Mass. 73, 105 N. E. 457; Wise Me- teen declared a feme sole trader, morial Hospital Ass'n v. Peyton Markley v. Wartman, 9 Phila. (Pa.) (Neb.), 154 N. W. 838. 236. § 107 HUSBAND AND WirE. 132 the less liable for her support.^' But not where she is in prison." And it seems that under circumstances of misconduct on the wife's part the husband may compel her to assent, after her release from confinement, to live separate on an allowance, without being charge- able for her support as on© who has turned his wife out of doors.^" § 107. Wife's Right to sell property to Obtain Necessaries. The wife ought not, without authority, to raise money by dis- posing of her husband's property. And the fact that a wife is left by her husband without means of support does not authorize her to give away household furniture, which he left in her possession, in payment of necessary services to herself.^^ And it was recently held that where a man was sent to jail for four months for an assault upon his wife, by which she was disabled from work, and he took with him all his money, leaving her no means of support, she was justified in selling, in her extremity, for a reasonable price, a cooking-stove belonging to her husband, for the strict purpose of procuring the means for the purchase of necessaries.^^ Some of the old books raise a curious distinction : namely, that if the wife takes up goods, as silk, and before they are made into clothes, pawns them, the husband shall not pay for them; but that it is otherwise if they are made up and worn, and then pawned ; for in the former case they never came to the husband's use, while in the latter they did.^^ We apprehend that the real question in such cases would be whether the articles were or were not in fact necessaries ; while at the same time purchases of cloth in quantities, it might be admitted, are not so clearly necessaries as clothing made up for wear and worn. The practical application of this rule is in cases where the wife (being, as we have said, for- bidden to borrow money for the purchase, real or ostensible, of necessaries) undertakes to raise funds for her own purposes by purchasing goods and then selling or pawning them. We do not find a modern decision on this precise point. 18. Wray v. Wray, 33 Ala. 187. And Brookfield v. Allen, 6 Allen (Mass.) see Alna v. Plummei, 4 Greenl. (Me.) 585. 258; Wray v. Cox, 24 Ala. 337; 21. Edgerly v. Whalan, 106 Mass. Brookfield v. Allen, 6 Allen (Mass.) 307. 585. 22. Ahern v. Easterby, 42 Conn, 19. 2 Stra. 1122 ; Bates v. Enright, 546. 42 Me. 105. 23. Holt, C. J., in Etherington v. 20. Wray v. Wray, 33 Ala. 187; Parrott, 1 Salk. 118. See also Eeeve Dom. Ee]. 84. 133 NECESSARIES. § 108 § 108. LiabUity of Wife. How far the wife can contract liability for necessaries in her own person, when the husband is discharged by her delinquency, was considered in the case of Marshall v. Button."* Lord Kenyon observed that it was not a necessary consequence of the determina- tion of the husband's responsibility that the wife should be at lib- ,erty to act as a feme sole; but that the contrary was the truth; and that any persons knowing her condition, who chose to trust her, could not complain if they found themselves unable to sue her. But these remarks are very cautiously put ; and it seems reasonable to suppose, as Justice Buller expresses himself in the case upon which Lord Kenyon commented, that the wife would become liable therefor ; certainly if she represented herself as a single woman.''^ At common law a wife was not liable after her husband's death for necessaries for which he was primarily liable.''" Under Married Women's Acts a wife may bind herself by an express contract for necessaries,^^ if the creditor so understands the contract"' But it must affirmatively appear that she made the purchases on her indi- 84. MarshaU v. Button, 8 T. E. 547. 25. Cox V. Kitcliin, 1 B. & P. 339 ; Childress v. Mann, 33 Ala. 206; Mc- Henry v. Davies, L, R. 10 Eq. 88. 26. Bazemore v. Mountain, 121 N. C. 59, 28 S. E. 17. 27. Charron v. Day, 228 Mass. 305, 177 N. E. 347; Hazard v. Potts, 40 Misc. 365, 82 N. Y. S. 246; Glenn v. Gerold, 64 S. C. 236, 42 S. E. 155; Adair v. Arendt, 126 Ark. 246, 190 S. W. 445 ; Bonebrake v. Taner, 67 Kan. 827, 72 P. 521; Hardiman's Adm'r v. Crick, 131 Ky. 358, 115 S. W. 236; Bearing v. Moran, 25 Ky. Law, 1545, 78 S. W. 217; Strawbridge v. Wolff, 66 Pa. Super. 328 ; Desmond v. Dock- ery (Tex.), 116 8. W. 114; Metier v. Snow, 90 Conn. 690, 98 A. 322; Bell V. Eosingnol, 143 Ga. 150, 84 8. E. 542; Grandy v. Haddock, 85 App. Div. 173, 83 K. T. 8. 90; Oliver v. Webber, 12 Ga. App. 216, 76 8. E. 1081; Noell v. O'Neill, 128 Md. 202, 97 A. 513; Valois v. Gardner, 122 App. Div. 245, 106 N. T. S. 808 ; Wiek- strom V. Peck, 179 App. Div. 855, 167 N. T. 8. 408 ; Speckmann v. Poote, N. Y. S. 380 ; In re Totten, 137 App. Div. 273, 121 N. Y. S. 942; Nathan v. Morgenthau, 114 N. Y. 8. 796 ; Hild v. Hellman (Tex.), 90 S. W. 44; Hall v. Johns, 17 Idaho 224, 105 P. 71; Thomas v. Passage, 54 Ind. 106; Quisenberry v. Thompson, 19 Ky. Law, 1554, 43 8. W. 723 ; Bradt v. ShuU, 46 App. Div. 347, 61 N. Y. 8. 484; An- derson V. Davis & Ould, 55 W. Va. 429; Woods v. Kauffman, 115 Mo. App. 398, 91 8. W. 399; Mayer v. Lithauer, 28 Misc. Eep. 171, 58 N. Y. 8. 1064; Carter v. Wann, 45 Ala. 343, (overr., Cunningham v. Fontane, 25 Ala. 644) ; Stevens v. Hush, 104 Misc. 69, 171 N. Y. 8. 41; Edminston v. Smith, 13 Ida. 645, 92 P. 842; Weber V. Look, 21 Ky. Law, 1027, 53 8. W. 1034 ; Hackman v. Cedar, 13 Ohio Cir. Ct. 618, 5 O. C. D. 293; Howe v. North, 69 Mich. 272, 37 N. W. 213; Vanderberg v. Kansas City, Mo., Gas Co., 126 Mo. App. 600, 105 8. W. 17; Sherry V. Littlefield (Mass.), 122 N. E. 300 ; Lipinsky v. Revell, 167 N. C. 508, 83 8. E. 820-. 28. Goodson v. Powell, 9 Ga. App. 497, 71 8. E. 765. § 108 HtrSBAKD AND WIFE. 134 yidual credit.^" In such case she will be presumed to intend to charge her separate estate.^" No such contract can be implied.*'^ A wife is not liable for necessaries sold to her husband, where there is no evidence that he was her agent.*^ The fact of such agency must affirmatively appear.^* Under the California statute a wife is not liable for her own support unless the community property fails, or the husband refuses to support her, but she may consent to his use of her estate for that purpose.^* The District of Columbia statute providing that the husband shall remain liable for neces- saries contracted for by the wife does not relieve her from similar liability.^" Under the Kentucky statute she is liable where the goods were charged to her though the husband is primarily liable for the same debt.'* She may be liable in Louisiana where she has reserved to herself the administration of her separate estate.'^ The fact that a husband deserts and does not provide for his family has been held tt> be a refusal to perform a contract for necessaries under the Michigan statute making a wife liable therefor in suoh case.*' Under the Married Women's Act in the same State, en- abling the wife to contract as to her separate estate, she is not bound by a contract to pay for medical services rendered to her husband,'" but under the same statute she is liable for clothes furnished to her minor son under her contract.*" Under the Nebraska statute the wife is liable for family necessaries where a judgment therefor against the husband has been returned unsatisfied.*^ Under the New York statute a wife is not liable for medical services rendered to her and her child at her request, in the absence of a special agreement,*^ but such an agreement will bind her.*' In the same State her promise to pay for board and lodging furnished to her under contract made with her husband has been held without con- 29. Feiner t. Boynton, 73 N. J. Law 37. Crotchet v. Dugas, 136 La. 285, 136, 62 A. 420. 52 So. 495. 30. Miller v. Brown, 47 Mo. 504, 38. Carstens v. Henselman, 61 Mich. 4 Am. B. 345. 426, 28 N. W. 159, 1 Am. St. E. 606. 31. Lavoie v. Dube, 229 Mass. 87, 39. Buck v. Patterson, 75 Mich. 397, 118 N. B. 179. 43 N. "W. 949. 32. Dillon v. Mandelbaum, 97 App. 40. Hirshfield v. Waldron, 83 Mich. Div. 107, 89 N. Y. C. 646. 116, 47 N. "W. 339 ; Barber v. Bberle 's 33. Bazemore v. Mountain, 136 N. Estate, 131 Mich. 317, 91 N. W. 133, C. 313, 35 S. E. 543. 9 Det. Leg. N. 335. 34. Title Ins. & Trust Co. v. Inger- 41. Iieake v. Lucas, 65 Keb. 359, 93 soil, 158 Cal. 474, 111 P. 360. N. W. 1019, 63 L. R. A. 190. 35. Dobbins v. Thomas, 26 App. D. 42. Eiehards v. Young, 84 N. Y. S. C. 157. 265. 36. TJnderhill v. Mayer, 174 Ky. 229, 43. Flurscheim v. Eosenthal, 112 193 S. W. 14. N. Y. S. 1118. 135 NECESSABIES. § 109 sideration.** Under the I^orth Carolina statute limiting the wife's capacity to contract to her necessary personal expenses or those for the benefit of the family, it was held that she could not contract for the erection of a house on her separate es.tate.*' But it was held otherwise as to advances to a tenant to enable him to make a crop which were made by a third person at the wife's request, it appearing that the wife's rents were the sole support of the family.*" Under a Texas statute empowering a wife to contract for neces- saries and for the benefit of her separate estate, it was held that she was not liable on her contract for nursing her husband," but it was held otherwise as to a contract for the commercial education of a daughter, where the husband was absent and where the wife's means justified the expense.*' In that State a wife who has a separate estate may bind herself by a contract for necessaries,*" and is bound by a note executed with her husband for necessaries of which she bought only a part."" In Wisconsin a wife cannot bind herself by a contract to pay for her board while living with her husband and engaged in no ibusiness.'^ § 109. What Constitutes Necessaries — in General. The wife's necessaries are such articles as the law deems essential to her health and comfort ; chiefly food, drink, lodging, fuel, wash- ing, clothing, and medical attendance. They are to be determined, both in kind and amount, by the means and social position of the married pair, and must therefore vary greatly among different grades and at different stages of society.^'* The articles furnished must be necessary and proper for a family such as that of the particular husband,^* and the creditor has the burden of showing that the goods sold are necessaries. "** 44. Buhl V. Heintze, 97 App. Div. 51. Chickering-Chase Bros. Co. v. 442, 89 N. T. S. 1031. L. J. White & Co., 137 Wis. 83, 106 45. Weathers v. Borders, 134 N. C. N. W. 7«7. 610, 32 S. E. 881 (reh. den., 121 N. C. 52. 3 Bright, Hus. & Wife, .7, 8 387, 28 8. E. 534). Ozard v. Damford, Sel. N. P. 260 46. Bazemore v. Mountain, 121 N. C. Dennys v. Sargeant, 6 Car. & P. 419 59, 28 S. E. 17. Berrebloek v. Michael, Cro. Jao. 257 47. Flannery v. Chidgey, 33 Tex. 258; n. to 2 Kent Com., 10th ed., 146 Civ. 638, 77 S. W. 1034. ib. 138, 139; 1 Bl. Com. 442. 48. Haas v. American Nat. Bank, 58. Schwartz v. Cohn, 129 N. T. S. 42 Tex. Civ. 167, 94 S. W. 439. 464; Wilder v. Brokaw, 141 App. Div. 49. Palmer v. Coghlan (Tex.), 55 611, 136 N. T. S. 933; B. Altman & S. W. 1123. Co. V. Durland, 173 N. Y. 8. 63; 50. Hild V. Hellman (Tex.), 90 Marshall v. Curry, 33 Pa. Super. 143. S. W. 44. 54. Frank v. Carter, 21ff N. T. 35, 113 N. E. 549, L. B. A. 1917B, 1S88, § 110 HUSBAND AND WIFE. 136 § 110. Illustration. Groceries purchased by the wife for the family are necessaries/'* as well as suitable clothing for her."' Such clothing must be suit- able to the wife's condition in life and must be actually needed."' Thus a large milliner's bill might not be deemed necessaries for the wife of a laborer, while a wealthy merchant would be bound to pay it. So, too, necessaries to-day are not what they were fifty years ago. Nor, is the ordinary test to be found in the real situation and means of the married parties ; for this a tradesman cannot be expected to investigate ; but in their apparent situation, the style they assume, and the establishment they maintain before the world ; which every husband is supposed to regulate with sufficient prudence."' Arti- cles, too, may be of a kind which the law pronounces necessaries, and yet a wife may be so well supplied as not to need the particular articles in question, — a distinction of some consequence. The decisions in the books, relating to necessaries, are therefore some- what confusing, as might be expected; the more so since the dividing line between law and fact, in such cases, is not marked with distinctness. Sometimes the court decides whether articles are necessary, sometimes a jury. The ordinary rule is that the court shall decide whether certain articles are to be classed as neces- saries ; while the jury may determine the question of amount, and apply this classification to the facts,"* but this rule, though seem- ingly precise, is found difficult in its practical application. Among the cases we find the following articles classed as neces- saries for the wife : Board and lodging,"" furniture of a house for a wife to whom the court had decreed £380 a year as alimony,'^ watches and jewelry such as befits the style of dress which the hus- band sanctions, especially if not wholly ornamental,'^ silver fringes to a petticoat and side-saddle (value £94) furnished to the wife of 55. Fischer v. Brady, 47 Misc. 401, nett, 114 Mass. 434; Phillipson v. 94 N. Y. S. 35. Hayter, L. E. 6 C. P. 38. 56. Peiner v. Boynton, 73 N. J. 60. Harris v. Lee, 1 P. Wms. 438; Law, 136, &3 A. 430. Mayhew v. Thayer, 8 Gray (Mass.), 57. Dolan v. Brooks, 168 Mass. 350, 172; Cothran v. Lee, 24 Ala. 380; 47 N. 3. 408. Webber v. Spannhake, 3 Eedf. (N. T.) 58. Waithman v. Wakefield, 1 Camp. 258; Spaun v. Mercer, 8 Neb. 357. 120; Gately Outfittiag Co. v. Vinson 61. Hunt v. De Blaquiere, 5 Bing. (Mo.) 183 S. W. 133. 550. 59. Eenaux v. Teakle, 30 E. L. & 62. Cooper v. Haseltine, 50 Ind. Eq. 345; 1 Pars. Contr. 341; Hall v. App. 400, 98 N. E. 437; Eaynes v. Weir, 1 Allen (Mass.), 361; Parke v. Bennett, 114 Mass. 424. Kleeber, 37 Pa. 251; Eaynes v. Ben- 137 NECESSAEIES. § 111 a serjeant-at-law,** liousehold supplies reasonable and proper for the ordinary use of a family, although the wife receives the earn- ings of two daughters living with her,"* perhaps a piano,®° a horse worth $4:5 for the invalid wife of a miller earning $30 per month, in order that she might take exercise as advised by a physician; the question of suitableness, however, being left to the jury.®* § 111. Counsel Fees. A husband has been held liable for reasonable legal expenses incurred by a wife who had been desereted by her husband, pre- liminary and incidental to a suit for restitution of her conjugal rights, and in obtaining professional advice as to the proper method of dealing with tradesmen who were pressing their bills,'^ and for reasonable legal expenses in defence of a prosecution instituted against a wife by her husband,*' and even, in a just cause, for prosecuting him,*® and the cost of divorce proceedings, including fees of a proctor, where the wife had reasonable ground for institut- ing them, but not otherwise,^* especially where necessary for the wife's protection.''^ He has been held liable for such services rendered in committing her to an insane asylum,^'' and for counsel to defend her character in a suit against her.'* He has been held not liable for the expense of an indictment by the wife for assault,'* nor for counsel fees in a suit for divorce or to enforce a marriage settlement, whether the wife be plaintiff or defendant."* A husr 63. Skin. 349. 73. Hamilton v. Salisbury, 133 Mo. 64. Hall V. Weir, 1 Allen (Mass.) App. 718, 114 S. W. 563. 261. 74. Grindell v. Godmond, 5 Ad. & 65. Parke t. Kleeber, 37 Pa. 251. El. 755. Espeeially if the grounds for But see Chappell v. Nunn, 41 L. T. instituting criminal proceedings did a87. not appear reasonable. Smith v. 66. Cornelia v. Ellis, 11 lU. 584. Davis, 45 N. H. 566. 67. Wilson v. Ford, L. E. 3 Ex. 63. 75. Pearson v. Darrington, 33 Ala. 68. Warner v. Heiden, Z» Wis. 517. 227 ; Dow v. Eyster, 79 111. 254 ; Mc- 69. Shepherd v. Mackoul, 3 Camp. Cullough v. Eobinson, 2 Ind. 630; 326 ; Morris v. Palmer, 39 N. H. 123. Yeiser v. Lowe, 50 Neb. 310, 69 N. W. 70. Brown v. Aekroyd, 34 E. L. & 847; Morrison v. Holt, 42 N. H. 478, Eq. 214; Porter v. Briggs, 38 la. 80 Am. Dee. 130; Wing v. Hurlburt, 166. 15 Vt. 607, 40 Am. Dee. 695; Pear- 71. Maddy v. Prevulsky (la.), 160 son v. Darrington, 32 Ala. 227; Mor- N. W. 762, L. E. A. 1917C, 335; rison v. Holt, 42 N. H. 478; Thomp- Wiek V. Beok (la.), 153 N. W. 836, son v. Thompson, 3 Head (Tenn.), L. E. A. 1915F, 1162. 527; CoflSn v. Dunham, 8 Cush. (Mass.) 72. Moran v. Montz, 175 Mo. App. 404; Shelton v. Pendleton, 18 Conn. 360, 162 S. W. 323. 417; Johnson v. Williams, 3 la. 97; § 112 HUSBAND AND WIFE. 138 band whose wife is living apart from him is not liable for counsel fees incurred by her in defending a prosecution for that offence," nor for services rendered by an attorney who knew of a separation, especially where the court, in a proceeding for separate main- tenance, had fixed the wife's allowance/^ nor in such an action where the parties have become reconciled and have resumed cohab- itation," nor for counsel fees in a proceeding against him for divorce, other than the amount allowed by the court/" or for legal advice pending such a proceeding,*" nor for such services in an action brought against both spouses for the construction of a trust deed made by the husband alone.'^ § 112. Medical Services. Medical services rendered to the wife are generally necessaries,'* but not where such services were rendered on her sole credit,** or where she lives apart without justifiable cause.** Under the Ken- tucky statute the husband alone is liable for medical services fur- nished to the wife, if suitable to her condition iu life.*^ Medical Drais v. Hogan, 50 Cal. 131; Dow v. Eyster, 79 IU. 254; Whipple v. Giles, 55 N. H. 139; Williams v. Monroe, 18 B. Mon. (Ky.) 514; Ray v. Adden, 50 N. H. 83. Legal expenses and fees are sometimes chargeable against a husband, in cases of this sort, because the statute says so. Thomas v. Thomas, 7 Bush (Ky.), 665; Warner V. Heiden, 28 Wis. 517 ; Glenn v. Hill, 50 6a. 94. Decisions differ; but the weight of authority is that an action at law for his fees cannot be maintained by a solicitor who prosecutes or defends on the wife 's behalf against her husband. Fees and retainers for more solicitors than were needful cannot be allowed. See Divorce, post, Vol. II. 76. Peaks v. Mayhew, 94 Me. 571, 48 A. 172. 77. Damman v. Bancroft, 43 Misc. 678, 88 N. T. S. 386. 78. Kuutz T. Kuntz, 80 N. J. Eq. 429, 83 A. 787. 79. Zent v. Sullivan, 47 Wash. 315, 91 P. 1088, 13 L. E. A. (N. 8.) 244. 80. Meaher v. Mitchell, 113 Me. 416, 92 A. 492, li. E. A. 1915C, 467. 81. MuUigan v. Mulligan, 161 Ey. 638, 171 S. W. 420. 88. Johnson v. Coleman (Ala.), 69 So. 318; City of Columbus v. Strass- ner, 138 Ind. 301, 34 N. E. 5; Button V. Weaver, 87 App. Div. 224, 84 N. Y. S. 388; Schneider v. Eosenbaum, 52 Misc. 143, 101 N. T. S. 589; Thrall Hospital v. Caren, 140 App. Div. 171, 124 N. T. S. 1038 ; In re Babcock, 169 N. T. S. 800, 171 N. T. S. 1078; Davenport v. Eutledge (Tex.), 187 S. W. 988. A husband is not liable to a surgeon who operated on his wife, where the wife did not request the operation, but only passively acqui- esced in it, and no person having any power of agency for the husband re- quested or authorized it. Kennedy v. Benson, 144 N. T. S. 787. 83. Black v. Clements, 2 Pennewill (Del.), 499; 47 A. 617. 84. Wolf V. Sehulman, 45 Misc. 418, 9N. T. S. 363; Morgenrothv. Spencer, 124 Wis. 564, 102 N. W. 1086. 85. Towery v. McGaw, 22 Ky. Law, 155, 56 S. W. 727. 139 NECESSAKIES. § 114 attendance rendered, without the husband's assent, by a quack doctor, are not necessaries,'" but when a husband disputes a bill for medical attendance on the ground of malpractice, or an unnecessary surgical operation, the burden is on him to show it." § 113. Dental Services. iN'ecessaries include a set of false teeth, and reasonable den- tistry,** and dental services generally.*" § 114. Last Sickness and Funeral Expenses. A surviving husband is primarily liable for the funeral expenses of his deceased wife,*" even though she lived apart from him,®^ and has a separate estate,"^ but it is sometimes held that her estate is secondarily liable where he does not pay them.** In Massachu- setts and New York it is held that her estate is solely liable for her funeral expenses.'* A third person defraying a wife's funeral expenses may recover from the husband the amount expended.*" He is also liable for the necessary expense of her last sickness.*' But a wife is not liable for her husband's funeral expenses, in the absence of statute.*^ Under the Iowa statute the expense of a 86. Wood V. O 'Kelly, 8 Cuah. (Mass.) 406. 87. MeClallan v. Adams, 19 Pick. (Mass.) 333. 88. Clark v. Tenneson (Wis.), 130 N. W. 895, 33 L. E. A. (N. S.) 426; Freeman v. Holmes, 62 Ga. 556; Gil- man V. Andrus, 28 Vt. 241. 89. Clark v. Tenneson, 146 Wis. 65, 130 N. W. 895. 90. Carpenter v. Hazelrigg, 103 Ky. 538, 20 Ky. Law, 231, 45 S. W. 666; Bowen v. Daugherty, 168 N. C. 242, 84 S. E. 265; Stack v. Padden, 111 Wis. 42, 86 N. W. 568; Gustin v. Bryden, 205 111. App. 204; Scott v. Carothers, 17 Ind. App. 673, 47 N. E. 389; In re Skillman's Estate, 146 la. 601, 125 N. W. 343 ; Ketterer v. Nel- son, 146 Ky. 7, 141 S. W. 409^; Brand's Ex'r V. Brand, 109' Ky. 721, 22 Ky. Law, 1366; Sears v. Giddey, 41 Mich. 590, 2 N. W. 917, 32 Am. E. 168; Bowen v. Daugherty, 168 N. C. 242, 84 S. E. 265; Hatton V. Cunningham, 162 N. Y. S. 1008; George H. Humphrey & Son v. Huff, 3 Ohio App. Ill, 35 Ohio Cir. Ct. 117 ; In re StadtmuUer, 110 App. Div. 76, 96 N. T. S. 1101; In re Klingensmith, 58 N. Y. S. 375, 29 Civ. Proe. E. 69; Towery v. McGaw, 22 Ky. Law, 155, 56 S. W. 727. 91. Scott V. Carothers, 17 Ind. App. 673, 47 N. E. 389; Watkins v. Brown, 89 App. Div. 193, 85 N. Y. S. 820. 92. In re Conn's Estate, 65 Pa. Super. 511. 93. Carpenter v. Hazelrigg, 103 Ky. 538, 20 Ky. L. 231, 45 S. W. 666. 94. Morrissey v. Mulhern, 168 Mass. 412, 47 N. E. 407 ; In re StadtmuUer, 110 App. Div. 76, 96 N. Y. S. 1101. 95. Stone v. Tyack, 164 Mich. 550, 129 N. W. 694, 17 Det. Leg. N. 1118. 96. Ketterer v. Nelson, 146 Ky. 7, 141 S. W. 409; Long v. Beard, 20 Ky. Law, 1036; Stonesifer v. Shriver, 100 Md. 24, 59 A. 139. 97. Eobinson v. Foust, 31 Ind. App. 384, 99 Am. St. E. 269; Hollands- worth V Squires (Tenn.), 56 S. W. 1044; Compton v. Lancaster (Ky.), 114 S. W. 260. § 115 HUSBAND AND WIFE. 140 husband's last sickness is a family expense for whicli tlie wife is liable, even though the claim against the estate of the husband had been lost by failure to prove within the statutory period. °* Under the Washington statute a wife is secondarily liable for her hus- band's funeral expenses after the funds of his estate have been exhausted/' and for her husband's medical and hospital expenses, though she was in another State when they were rendered, it ap- pearing that she corresponded with him and after his death secured a decree giving her his estate.^ Under the Wisconsin statute the wife's estate is primarily liable where the undertaker furnishes the funeral on the credit of her separate estate, independently of the liability of the husband, who ordered it." § 115. What are not Necessaries. The following articles have been held not to be necessaries: Articles of jewelry for the Avife of a special pleader,* a deed of separation,* passage tickets in general to enable the wife to travel, except perhaps for a clearly needful purpose," " religious instruc- tion," or the rent of a church pew,® diamond earrings, a watch for the wife's daughter by a former husband, and chain for a servant's lover,^ a set of " Stoddard's Lectures," * apartment decorations fur- nished and charged to the wif e,® a sofa cushion, lamp and gown for a wife, the whole bill amounting to $22.25,^" board at a summer hotel for the period of the summer season at a place away from the family domicile,'^ a horse for use in the wife's separate business.^^ Articles which are extravagant and altogether beyond the husband's circumstances and degree in life are not necessaries.^* A husband 98. Vest V. Kramer (la.), 114 109 N. W. 74, 7 L. E. A. (N. 8.) 1048. N. W. 886. 9. Proctor v. Woodruff, 119 N. Y. 99. Butterworth v. Bredemeyer, 74 S. 232. Wash. 524, 133 P. 1061. 10. Eaymond v. Cowdrey, 19 Misc. 1. Eussell V. Grauman, 40 Wash. 34, 43 N. T. S. 557. 667, 82 P. 998. 11. Stevens v. Hush, 176 N. T. 2. Schneider v. Breier 's Estate, 129 Supp. 602. Wis. 446, 109 N. W. 99, 6 L. E. A. 12. Palmer v. Coghlan (Tex.), 55 (N. S.) 917. S. W. 1122. 3. Montague v. Benedict, 3 B. & C. 13. Caney v. Patton, 2 Ashm. 140. 631. In Phillipson v. Hayter, L. E. 6 C. P. 4. Ladd v. Lynn, 2 M. & W. 265. 38, goods, such as a gold pencil-case, 5. Knox V. Bushell, 3 C. B. (N. S.) cigar-case, glove-box, scent-bottle, 334. guitar, music, and purse, to the value e. St. John's Parish v. Bronson, 40 of £20, were held not to be necessaries Conm. 75. chargeable against the husband, who 7. Otto V. Matthie, 70 HI. App. 54. was a clerk with a salary of £400 a 8. Shuman v. Steinol, 139 Wis. 422, year. 141 NECESSAKIES. § 116 is not liable for expenses of administering his wife's estate or for an action brought by her representative.^* § 116. Joint Statutory Liability for "Family Expenses." A contract capacity, involving legal liability from the separate estate, is now quite frequently sustained as to the wife, without requiring her to stand on her old footing of agent for the husband to serve her dire needs.^^ This, as an enlargement of contract power in a married woman, results in part from protecting her separate property, over which it is hardly just that she should enjoy full dominion, without contributing something from its income to the comforts of the matrimonial abode. In many States the hus- band is still under the common-law obligation to support his wife and family; and primarily this continues almost universally his duty; but great modifications of the old rule have of late been established both in England and America. Thus, under the English Married Women's Act of 1870, a wife having separate property is rendered liable to the parish for the maintenance of her husband and children.^" Some of the Amer- ican married women's acts, too, charge the wife's separate estate distinctly with necessaries or with articles of " family supply," though not unless she contracted for the articles, or unless, at least, her husband was destitute of the means of payment. ^^ 14. Long V. Beard, 20 Ky. Law, wife at her request, may be thus 1036, 48 S. W. 158. charged. Yates v. Lurvey, 65 Me. 231; 15. For the coverture doctrine of May v. Smith, 48 Ala. 483. But see necessaries and the wife's agency for Thomas v. Passage, 54 Ind. 106; Web- procuring them, see supra, 83. ber v. Spannhake, 2 Eedf. (N. Y.) 16. Act 33 & 34 Vict., ch. 93. 258. Needful servants are thus 17. Covert v. Hughes, 15 N. Y. 305 ; charged. Pippin v. Jones, 52 Ala. 161. McCormick v. Muth, 49 la. 536; Cun- But in New York, to charge the ningham v. Fontaine, 25 Ala. 644; wife's separate estate for nurses and Eogers v. Boyd, 33 Ala. 175; Finn v. household expenses not rendered for Eose, 12 la. 565. See Sharp v. Burns, its benefit, a distinct agreement to 35 Ala. 653; Callahan v. Patterson, that effect must appear on the wife's 4 Tex. 61. Debt incurred in procuring part. Eisenlord v. Snyder, 71 N. Y. a substitute for a husband who was 45. drafted is not included among ' ' neces- A husband, under some local stat- saries" thus chargeable upon the utes, is not liable for municipal ex- wife. Ford v. Teal, 7 Bush (Ky.), penses incurred in treating his insane 156. See, further, Lawrence v. Sinna- wife at a public institution. Delaware men, 24 la. 80. State aid to a sol- County v. McDonald, 46 la. 170; dier's wife is chargeable as above. Commissioners v. Schmoke, 51 Ind. Hammond v. Corbett, 51 N. H. 311. 416. As to making a husband a pau- Medieal attendance, rendered the per, by his wife's receiving pauper § 116 HUSBAND AND WIFE. 142 Doubtless a married woman may become bound for her own necessaries, and in a sense for what may be called " family neces- saries " to a reasonable and proper extent, contracted on the faith of her separate estate, whether her husband be insolvent or not, or without means, so long as neither he nor his credit were considered in the transaction between herself and the storekeeper; and her separate estate is answerable accordingly in a suit against her under many statutes/' Under such a statute both spouses are princi- pals,^^ each holding the other out by the marriage relation as agent to incur family expenses.^" This, in part at least, upon equity principle, too, as something beneficial to her, and authorized by her upon the express credit of her separate estate.^^ And though the aid, under laws of settlement, see Lewiston v. Harrison, 69 Me. 504. As statutory necessaries cannot be charged against the wife's separate property, improvements on real estate, out-houses, and fencing. Lee v. Campbell, 61 Ala. 13. Money of the wife used by her husband, with her consent and knowledge, in payment of ordinary household expenses, and without agreement for its repayment, cannot be recovered by her from his estate. Courtright v. Courtright, 53 la. 57. But see Sherman v. King, 51 la. 183. As to the wife's check or draft for supplies, see Castleman v. Jeffries, 60 Ala. 380. Under the Mississippi Code the wife's separate estate is liable for "plantation supplies." Lake v. Dil- lard, 55 Miss. 63; Wright v. Walton, 56 Miss. 1; Ogden v. Guiee, 56 Miss. 330; Grubbs v. Collin, 54 Miss. 368. "Articles of comfort and support for the household ' ' are thus chargeable in Alabama. Baker v. Flournoy, 58 Ala. 650; Jones v. Wilson, 57 Ala. 122; May V. Smith, 48 Ala. 483 ; Cauly v. Blue, 62 Ala. 77. "Expenses of the family" are thus chargeable under Iowa Code. MeCormick v. Muth, 49 la. 536; Jones v. Glass, 48 la. 345, 18. Gunn v. Samuel, 33 Ala. 201; Catron v. Warren, 1 Cold. (Tenn.) 358; Wylly t. Collins, 9- Ga. 323; Black V. Bryar, 18 Tex. 453; Eigoney V. Neiman, 73 Pa. 330; O'Connor v. Chamberlain, 59 Ala. 431; Labarcu v. Colby, 99 Mass. 559; Davidson v. Mc- Candlish, 69 Pa. 169; Campbell v. White, 23 Mich. 178 ; Craft v. EoUand, 37 Conn. 491; Murdy v. Skyles, 101 la. 549, 70 N. W. 714, 63 Am. St. B. 411; Houghteling v. Walker, 100 F. 253 (wife's liabilitiy for rent of house leased by husband) (affd. 46 C. C. A. 512, 107 F. 619); Banner Mercantile Co. v. Hendrick, 24 N. D. 16, 138 N. W. 993; Meier & Frank Co. V. Mitlhner, 75 Ore. 331, 146 P. 796 ; Dale v. Marvin, 76 Ore. 528, 148 P. 1116, rehearing denied Id. 1151. 19. In re Skillman's Estate, 146 la. 601, 125 N. W. 343. 20. Arnold v. Keil, 81 111. App. S37. 21. The wife's equitable separate estate is not, apart from her credit, liable for family board, though the husband be insolvent. Mayer v. Gal- luchat, 6 Eich. Eq. (S. C.) 1. But when upon credit of her separate es- tate, equity will enforce it. Priest V. Cone, 51 Vt. 495; Eoberts v. Kel- ley, 51 Vt. 97. But cf. Weir v. Groat, 4 Hun (N. T.), 193; Sorrel v. Clay- ton, 43 Tex. 188; Baker v. Harder, 4 Hun, 272 ; Collins v. Underwood, 33 Ark. 265. For in some States the wife's own benefit, apart from chil- dren or husband, is strictly regarded. House rent to a reasonable amount may be thus charged by wife 's express Ttrnp.nppmpnf, lari'ici TT 143 NECESSABIES. § 116 husband be considered still presumably liable, as to supplies for th^ needful clothing, support, and education of his wife and family, the wife continuing his agent as at the common law, yet for such supplies the wife may, as some States hold, render herself liable, and by her actual consent, express or implied, cons-titute even the husband himself a purchaser of such supplies as her agent, she being the principal/^ If there be any good sense in the rule that, where credit is once given to the wife, the husband will not be liable, though the articles purchased be a necessary, it is in cases where the wife has a separate income or separate property of her own, and under her own control. ^^ If the expense is for the family within the meaning of the statute it is immaterial whether it was strictly necessaries,^* if the articles are for and are used by some member of the family,^° or go to the support or joint benefit of both,^"* or if purchased by a member of the family, though over age, and whether purchased before or after th« husband's death."'' To recover under such a statute the creditor must show that there Tex. 124; Wright v. Meriwether, 51 Ala. 183. But not without aueh ex- press procurement. Bustaphieve v. Ketehum, 13 N. Y. 621. Whether a husband's discharge in bankruptcy will relieve the wife's estate from a claim for family necessaries where it is not clear that express credit was given to the wife, see Wilson v. Een- shaw, 91 Pa. 234; Jones v. Glass, 48 la. 345. Articles not stricly necessaries have thus been charged upon the wife, she having expressly contracted. Adams V. Charter, 46 Conn. 551; Miller v. Brown, 47 Mo. 505. But not usually what were neither her necessaries nor expressly contracted for. Parker v. Dillard, 50 Ala. 14. Where articles consist partly of enforceable necessa- ries, and partly of articles not so en- forceable, the liability of the former may be enforced, regardless of the latter articles. Parker v. Dillard, 50 Ala. 14; Lee v. Tannenbaum, 62 Ala. 501; Eoberts v. Kelley, 51 Vt. 97. No change in the wife's statutory separate estate, existing and liable for the account when it was made, can defeat proceedings to compel pay- ment. Cheatham v. Newman, 59 Ala. 547. 22. Cook V. Ligon, 54 Miss. 368. And see Powers v. Eussell, 26 Mich, 179; Wilson v. Herbert, 41 N. J. L. 454; Sherman v. King, 51 la. 182; Miller v. Brown, 47 Mo. 505, as to requiring affirmative proof that the wife purchased on her own credit in order to charge her separate estate. 23. Equity, under very strong cir- cumstances of expediency, has re- quired the wife's separate income to be applied towards her support; as where she is insane, and consequently both helpless as a wife and incapable of giving or withholding assent. See Davenport v. Davenport, 5 Alien (Mass.), 464. 24. Berow v. Shields, 48 Utah, 370, 159' P. 538. 25. Oilman v. Matthews, 30 Colo. App. 170, 77 P. 366. 26. Perrigino v. Keasbey (Conn.), 106 A. 445. 27. Graham & Corry v. Work, 163 la. 383, 141 N. W. 428. § 118 HUSBAND AliTD WIFE. 144 was a legal relation of husband and wife.^* Under the Connecticut statute both spouses are liable for the " reasonable apparel " of the wife, though he has not abandoned her.^' Under the Illinois stat- ute making a wife liable for family expenses, a wife was held not liable for the expense of caring for a drunben husband, from whom she was separated.^" Under the Iowa statute making the wife liable for family expenses, a creditor who has a judgment against the husband for such a debt may in equity subject the wife's prop- erty to the debt without first obtaining judgment against her.'* In Louisiana a wife separated from her husband in property should contribute to the family expenses and the education to the extent of her means.'^ Under the Nebraska statute the wife is liable for the husband's support and necessary medical attendance while he is temporarily helpless, if he is a member of the f amily.'* In Texas both spouses are liable for her support where he abandons her,'^ § 117. Measure of Liability. Under such a statute the wife's liability is measured by her husband's contract, and payment by him and the statute of limita- tions both inure to her.'° Therefore a note which the husband has given for such a debt does not bind either as to the validity of the debt or the amount of it.'® Her liability cannot be enlarged by his act and should not be extended by construction.'' § 118. Effect of Separation. Such statutes do not apply where there has been a separation.'* Where there is a permanent separation the creditor cannot recover under such a statute, there being no " family," within its mean- ing.'" Therefore, under such a statute the creditor must show that the goods sued for were within the statute and that the spouses were 28. Band v. Bogle, 197 HI. App. 34. Palmer v. Coghlan (Tex.), 55 476; Berow v. Shields (Utah), 159 P. S. W. 1122. 538. 35. Morse v. Minton, 101 la. 603, 29. Paquin, Limited, v. Westervelt 70 N. W. 691. (Coim.), 106 A. 766. 36. McCartney & Sons Co. v. Carter, 30. Featherstone v. Chapin, 93 111. 129 la. 20, 105 N. W. 339. App. 223. 37. McCartney & Sons Co. v. Carter, 31. Boss V. Jordan, 118 la. 204, 89 129' la. 20, 105 N. W. 339. N. W. 1070. 38. O'Brien v. Galley -Stockton Shoe 32. First Natchez Bank v. Moss, 52 Co. (Colo.), 173 P. 544. La. Ann. 1524. 39. Berow v. Shields, 48 Utah, 270, 33. Leake v. Lueas, 65 Neb. 359, 159 P. 538 (holding that a temporary 91 N. W. 374, 62 L. R. A. 190 (affd. separation will not prevent recovery), reh., 65 Neb. 359, 93 N. W. 1019). 145 NECESSAEIES. § 120 in fact living together.*" Under such, statutes the rights of the creditor are not affected by a contemplated separation of which he knows nothing,*^ especially where he has no means of knowledge.** § 119. House Rent. Under the Colorado statute making the wife liable for family expenses, where a husband leased a house which the family occu- pied as a home and where he vacated prior to the determination of the lease, during which the furniture was damaged, it was held that the rent after the family moved out and the damage to the furniture were not family expenses.*^ Under the same statute, she was held liable for room rent though her husband rented the room.** Under the Ulinois statute it was held that the wife was liable for the rent of house leased by the husband, of which she occupied part only, he leasing the remainder to another tenant.*^ Under the Kentucky statute enabling the wife to contract for necessaries it was held that she was not liable on her lease of a hotel purely for profit.*" Under the same statute the personal property of a tenant's wife cannot be subjected to payment of the rent.*' Under the Minnesota statute making the spouses jointly liable for " necessary household articles and supplies," she was held not liable for the rent of a house leased by him*« § 120. What constitutes " Family Expenses." Under such statutes the liability has been held to extend to a diamond shirt stud used by the husband as an ornament,*' and to a heating stove, wringer, coal and oil can, buggy and carriage kept for the use of the family,'" and to a honiton and point lace waist 40. Perkins v. Morgan, 36 Colo. 3-60, 46. Crow v. Shacklett, 18 Ky. Law, 85 P. 640; Gilman v. JIatthews, 20 908, 3« S. W. 693. Colo. App. 170, 77 P. 366; Kobertson 47. Pite v. Briedenbaek, 127 Ky. V. Warden, 197 111. App. 478. 504, 32 Ky. Law, 400, 105 S. W. 1182. 41. Arnold v. Keil, 81 111. App. 237. 48. Lewis v. France (Minn.), 163 48. Stoutenborough v. Bammel, 123 N. W. 656. 111. App. 487. 49- Neasham v. MeNair, 103 la. 43. Straight v. McKay, 15 Colo. 695, 73 N. W. 773, 38 L. E. A. 847, App. 60, 60 P. 1106. 64 Am. St. E. 202. 44. McDonnell v. Solomon (Colo.), 50. McDaniels v. McClnre, 142 la. 170 P. 951. 370, 120 N. W. 1031. 45. Bamett v. Marks, 71 HI. App. 673. 10 § 121 HUSBAND AND WIFE, 146 costing $200 for the wife," and to a buggy for family use," and to the medical and hospital expenses of the husband, though the wife was in another State, where she later obtained an order for his estate,"* and to supplies used for family servants, have been held within it.°* Under the similar California statute she is liable for medical services furnished to her children.'" ^nder the Kentucky statute enabling a wife to contract in writing for necessaries for herself or for any member of the family, she was held liable on a note given in payment for a mule to make a crop for their joint support/* Under the Missouri statute making the wife liable for family expenses she is liable for medical attendance furnished to the family, though her husband has given his note for the bill/^ § 121. What are not " Family Expenses." Under such statutes " family expenses " have been held to ex- clude the husband's board,*^* beer purchased by him,°° feed for a horse used by him in his business,"" and a piano, never received or used by the family,"^ or even if it was used by the family, if the husband has refused to consent to its purchase."^ Under the Illi- nois statute making a wife liable for family expenses, she was held not liable for a stanhope frequently used by the husband, a doctor, in his profession, and sometimes by other members of the family."* That statute does not include a ring for the personal use of one of the spouses."* Under the Iowa statute the expenses of keeping a husband in an insane asylum have been held not within it.°° Under the Kentucky statute the wife is not liable for the price of a city home to educate her children, where her general estate con- 51. Ross V. Johnson, 125 111. App. 58. Vose v. Myott, 141 la. 506, 120 65. N. W. 58. 52. Houek T. La Junta Hardware 59. O'Neil y. Cardinal, 15? la. 78, Co., 50 Colo. 338, 114 P. 645. 140 N. W. 196. 53. Bussell v. Graumann, 40 Wash. 60. Martin Bros. v. Vertres, 130 la. 667, 82 P. 998. 175, 106 N. W. 516. 54. Perkins v. Morgan, 36 Colo. 360, 61. Jones-Eoaqnist-Killen Co. v. Nel- 85 P. 640. son, 98 Wash. 539, 167 P. 1130. 55. Evans v. Noonan, 20 Cal. App. 62. Bush & Lane Piano Co. v. Wood- 388, 128 P. 794. ard (Wash.), 175 P. 339. 56. Allen v. Long, 19 Kj. Law, 488, 63. Staver Carriage Co. v. Beaudry, 41 S. W. 17. 138 111. App. 147. 57. Gabriel v. MuUen, 111 Mo. 119, 64. Hyman v. Harding, 163 III. 357, 19 S. W. 1099 (overrg., Bedsworth v. 44 N. E. 754. Bowman, 104 Mo. 44, 15 8. W. 990). 65. Blackhawk County v. Scott, 111 la. 190, 83 N. W. 493. 147 NECESSAKIES. § 121 sdsted only of a life estate in one hundred acres of land/" or on a note given for money advanced to pay interest on a mortgage where it did not appear that the family occupied the mortgaged estate.*' Under the Oregon statute, neither the expenses of a husiness con- ducted by either or both spouses, nor work on a farm or in pruning an orchard, are family expenses.** 66. Herr v. Lame, 20 Ky. Law, 19f50, 68. Chamberlain, v. Townsend 5 S. W. 545. (Ore.), 142 P. 782 (affd. reh., 72 Ore. 67. Watts T. Turner, 23 Ky. Law, 207, 143 P. 924). 279, &2 S. "W. 878. § 122 HUSBAND AND WIFE. 148 CHAPTEK VIII. LIABILITY FOE TOETS OF WIFE. Section 122. Sole liability of Husband — General Eule Stated. 123. Presumption of Coercion. 124. Necessity of Valid Marriage. 125. Extent of Liability. 126. For Torts of Wife Arising from Contract 127. For Devastavit by Wife. 128. Sole Liability of Wife. 129. Joint Liability of Spouses. 130. Effect of Statute. 131. Wife's Liability under Statute. 132. For Torts of her Agent. 133. Damages. 134. English Eule in Equity. § 122. Sole Liability of Husband — General Rule Stated. As to private wrongs or torts, the general rule of law is tliat the husband is liable for the frauds and injuries of the wife, whether committed before or during coverture; if committed under his coercion or by him alone, he, and he alone, is liable; otherwise, both are, for the time being, liable.*' He is liable for her torts in his presence even though committed against his protest.'"* Where the fraud or injury is committed in his company and by his order, coercion is presumed, and the husband becomes, prima facie, the only wrong-doer; and where committed without his order and in his absence, the wife is, in reality, the offending party, while the 69. Horsbaugh v. Murasky, 16? Cal. Cassin v. Delany, 38 N. T. 178; Ball 500, 147 P. 147; O'Brien v. Walsh, v. Bennett, 21 Ind. 427; Marshall v. 63 N. J. Law, 350, 43 A. 664; Ed- Oakes, 51 Me. 308; Clark v. Bayer, wards v. Wessinger, 65 S. C. 161, 43 32 Ohio St. 299. S. E. 518, 95 Am. St. R. 789; Ma- 70. Gill t. State, 39 W. Va. 479, honey v. Roberts, 86 Ark. 130, 110 20 S. E. 568, 45 Am. St. R. 928, 26 S. W. 225; 2 Kent Com. 149; Bing. L. R. A. 655. In Nebraska the com- Inf . 256, 257 ; Angel v. Felton, 8 mon-law rule that a husband is liable Johns. (N. Y.), 149; Gage v. Reed, 15 for his wife's torts committed in his m. 403 ; Carl v. Wonder, 5 Watts presence and without his participation (Pa.), 97; Whitman v. Delano, 6 or instigation, and that solely because N. H. 543; Gray v. Thaeker, 4 Ala. of the marriage relation, does not 136; McKeown v. Johnson, 1 MeCord exist. Goken v. Dallugge, 72 Neb. (S. C), 578; Benjamin v. Bartlett, 3 16, 99 N. W. 818 (mod. 72 Neb. 16, Miss. 86; Wright v. Kerr, Addis. 13; 101 N. W. 244, 103 N. W. 287). 149 TOETS OF WIFE. § 123 husband has become responsible for her acts by reason of her coverture. In the latter class of cases the husband is properly- joined with his wife in the suit ; for if the wife alone were sued, his property might be seized without giving him an opportunity for defence; and if the husband alone were sued, he would become chargeable absolutely. In the former class of cases the husband should be sued alone. '^ A husband is liable in replevin for his wife's unlawful detention of another's chattels under claim of title in herself.'^ § 123. Presumption of Coercion. This presumption of coercion, too, is much the same in civil as in criminal offences. It is said by Chancellor Kent that a wrong committed by the wife " in company with " her husband, or " by his order," renders the husband alone liable; but this statement is too general and should be limited to the case of her acting by his coercion.''* It is said that the privilege of presumptive coercion extends to no other person than a wife, not even to a servant.'* The presence of the husband and his direction should usually be concurrent, in order to amount to coercion ; and the presumption of a wife's coercion in a tort is, of course, not conclusive, but may be controlled by evidence of the facts.'"* As to private wrongs the question occurs, why should the husband be made to stand in the wife's place where the offence is considered against an individual, any more than when it is between herself and the State. This seems to be the true answer, as in case of her debts dum sola; namely, that the husband adopts her and her cir- cumstances together ; that he takes her fortune, if she has one, and 71. Miller v. Busey (Mo.), 186 v. Foley, 131 Mass. 259, 23 Am. B. S. W. 983; Presnell v. Moore, 120 E. 370. N. C. 390, 27 8. E. 27 (slander) ; 72. Choen v. Porter, 6« Ind. 194. Park v. Hopkins, 2 Bailey, 411 ; 73. Gray, C. J., in Handy v. Foley, Matthews v. Fiestel, 2 B. D. Smith 121 Mass. 259; 2 Kent Com. 149. (N. T.), 90; Jackson v. Kirby, 37 Vt. 74. Reeve Dom. Eel. 72; Barnes v. 448; Edwards v Wessinger, 65 8. C. Harris, Busbee, 15; Griffin v. Eeyn- 161, 43 8. E. 518, 95 Am. St. E. 789 olds, 17 How. (U. S.) 609. (assault); Huber v. Seeger (Wis.), 75. Cassin v. Delany, 38 N. T. 178 ; 153 N. W. 839; Emmons v. Stevane, Ferguson v. Brooks, 67 Me. 251. Co- 73 N. J. Law, 349, 64 A. 1014. That a ercion, if relied upon, should be set husband instigated and directed a up in defence. See Clark v. Bayer, wife to commit a tort in his absence 32 Ohio 8t, 299; Ferguson v. Brooks, may be shown by acts of his in exe- 67 Me. 251. eution of the same purpose. Handy § 126 HUSBAND AHD WIFE. 150 assumes all possible liabilities therefrom. Since the wife is not disabled to commit a tort, the presmnption may be rebutted.'* § 124. Necessity of Valid Marriage. Simple cohabitation will not be enough to make a husband re- sponsible for his wife's civil injuries. Marriage in fact is essen- tial." § 125. Extent of Liability. The husband's liability is after all a limited one, where he, in the first instance, was free from wrong; that is to say, that the death of the wife before the recovery of damages puts an end to his liability altogether. This is correct, not only on the principle announced in the case of the wife's debts dum sola, but because wrongs, being personal, die with the person, which last is the common explanation of this rule. If the husband dies before damages are recovered in the suit, the wife alone remains liable.'* So it would seem that the common law recognizes a liability on her part which continues through the marriage relation; coverture operating, however, so as to suspend the remedy against the married woman, and to bring in as a joint party the custodian of her fortune. The husband's liability for his wife's torts lasts so long as the relation lasts, even though the married pair be permanently sepa- rated; but possibly not if the wife be living in adultery at the time the wrong was committed.'* A divorced man is not liable to this joint action for a tort committed, while the relation lasted, by the woman from whom he is discovered.*" Where a husband is liable for a wife's tort he is so liable to the same extent as she.*^ § 126. For Torts of Wife Arising from Contract. Th'ere are, however, not only torts simpliciter, or simple wrongs at law, but wrongs where the substantive basis of the fraud is the 76. Jones v. Monson, 137 Wis. 478, Why adultery per se should, on legal 119 N. W. 179; Mahoney v. Boberts, principle, affect this liability, it is 86 Ark. 130, 110 S. W. 2S5. hard to perceive ; but if so, one might 77. Overholt v. EUsworth, 1 Ashm. infer that wherever the husband has 200. See Norwood v. Stevenson, Andr. ground for divorce he is relieved, 837. though not actually divorced. 78. Minor v. Mapes (Ark.), 144 80. Capel v. Powell, 17 C. B. (N. S.) S. W. 219, 39 L. E. A. (N. S.) 214; 743. 2 Bright Hus. & Wife, 22 n.; and see 81. Collier v. Struby, 99 Tenn. 241. Stroup V. Swarts, 12 S. & R. (Pa.) 76. 47 S. W. 90; Austin v. Wilson, 4 79. Head v. Briscoe, 5 C. & P. 484. Oush. (Mass.) 273. 50 Am. Den. 76B. 151 TOBTS OF WIFE. § 126 wife's contract. The common law has been supposed to apply with the same force in both cases, partly because in the latter instance the person injured would be otherwise without a remedy.*^ This point came directly before the English Court of Exchequer, m 1854, for decision. The circumstances of the case were as follows: A man applied for a loan of £30 to a loan association, upon the security of a promisory note, to be signed by himself and sureties. One of the sureties was a married woman who falsely represented herself to the association as single. The security was accepted and the loan made. Afterwards the loan association, re- curring to the sureties for payment of the note, sought to make her husband liable on the note, alleging her fraud. The court decided that the action was not maintainable; on the ground that though the husband is liable for the wife's general frauds, yet when the fraud is directly connected with her contract, and is the means of affecting it and part and parcel of the same transaction, the wife cannot be responsible, nor can the husband be sued for the fraud together with the wife.** In a recent American case, the same doctrine was affirmed where articles had been supplied to a married woman by a tradesman, for which he could not recover payment against the husband under the rule of necessaries, and he attempted to get rid of the rule by charging that the wife procured the articles upon false and fraudu- lent representations that they were needful.** And other decisions are to the same efPect.*" But there are cases where the wife will bind her husbad by her fraudulent representations on the ground of her agency. Thus in Taylor v. Oreen an advertisement appeared in a newspaper, offering for sale a baker's shop with the good-will of the business, and misrepresenting the extent of the business. It did not appear that the baker took any part in the transaction, further than to receive the purchase money and pay the broker his commission. The court held, nevertheless, that he was' bound by the fraudulent representations of his wife, inasmuch as she was his 82. Macq. Hus. & Wife, 130, 131 ; 85. Keen v. Hartmann, 48 Pa. 497 ; Head v. Briseoe, 5 Car. & P. 484, per Barnes v. Harris, Busbee, 15; Carle- Tindal, C. J. ; Eeeve Dom. Eel. 72, 73. ton v. Haywood, 49 N. H. 314. In 83. Liverpool Adelphi Loan Associa- this last case the wife had received tion V. Fairhurst, 9 Exeh. 422. See money under an agreement to keep also Cooper v. Witham, 1 Lev. 247. or loan the same according to her See vost, § 128. judgment. 84. Woodward v. Barnes, 46 Vt. 332. § 129 HUSBAND AND WIFE. 152 agent in managing the shop and finding a purchaser, and that he must respond in damages.*" i^or is the doctrine of the loan asso- ciation case as yet broadly applied,'^ while the modem tendency is, of course, to change the whole coverture doctrine on the point of a wife's torts and frauds, nor was the husband usually liable for such torts.** § 127. For Devastavit by Wife. The husband of an executrix or administratrix is liable for her devastavit, or other wrongful act committed before or during cover- ture, if his liability be fixed before the death of the wife.*° And if she survive him, her appointment having been complete in all respects, she becomes liable once more; even for a devastavit com- mitted by him when alive.*" But the husband cannot be sued as an executor de son tort for acts of his wife done widiout his knowledge; though it is otherwise where he advises or aids her in the commission of the wrongful acts ; for every one so participat- ing becomes a principal.*^ § 128. Sole Liability of Wife. Where the husiband is not liable, the wife is liable for her own torts, "^ but nor for his." At common law the wife was not liable for her torts arising out of contract.'* § 129. Joint Liability of Spouses. At common law a wife was liable jointly with her husband for her torts.'' Where the tort is committed by both spouses, and the wife does not act by coercion, both husband and wife may be 86. Taylor v. Green, 8 Car. & P. 91. Hinds v. Jones, 48 Me. 348. 316; Macq., Hus. & Wife, 137. And The wife cannot hold such offices dur- see, as to the wife's quasi criminal ing coverture independently of her act, in violation of the excise laws, husband 's control, as we shall see here- Attomey-General v. Eiddle, 2 Cromp. aftpr. & Jer. 493. 92. E. E. Tarbrough Turpentine Co. 87. See Wright v. Leonard, 11 C. B. v. Taylor (Ala.), 78 So. 813. (N. S.) (1861) 258. 93. Prentiss v. Eogart, 84 Wash. 88. De Wolff & Co. v. Lozier, 68 481, 147 P. 39. N. J. Law, 103, 52 A. 303. 94. Locke v. Reeves, 116 Ala. 590, 89. 2 Bright Hus. & Wife, 22-36, 22 So. 850; Brunnell v. Carr, 76 Vt. and cases cited; Bobe v. Prowner, 18 174, 56 A. 660; Rowley v. Shepard- Ala. 89. son (Vt.), 96 A. 374. See ante, § 126. 90. Soady v. Tumbull, L. E. 1 Ch. 95. Magerstadt v. Lambert, 30 Tex. 494. Civ. 472, 87 S. W. 1068. 153 TOETS OF WIFE. § 130 jointly sued.°' Husband and wife are sued together for the libel or slander of the wife;°^ and generally for forfeitures under a penal statute where she participated."^ So, too, for assault and battery.'® Or for the forcible removal of a gate.^ Spouses are jointly liable for conspiracy to alienate a wife's affections, the ^ist of the wrong being the damages and not the conspiracy.^ If the tort is committed in the husband's a)bsence, he is jointly liable with her.^ The husband has full management of the defence. And we need hardly add that he may compromise without his wife's assent.* Where, during the absence of tihe husband, the wife, without his knowledge, beeps vicious dogs on the premises for her pro- tection, she is liable for an injury they do to a passerby when she knew of their vicious disposition, as this is her tort not committed in the presence or under the supposed influence of her husband. The husband is jointly liable witlh her because of their marriage relations.' § 130, Effect of Statute. In some states the common-law rule is not affected by Married Women's Acts," particularly as regards personal torts of the wife 96. Eigdon v. Hedges, 12 Mod. See Gove v. Farmers', &c., Ins. Co., 246; Vine v. Saunders, 5 Scott, 359; 48 N. H. 41, where a husband, the Ifarshall v. Oakes, 51 Me. 308; Gray, owner of insured buildings, being C. J., in Handy v. Foley, 121 Mass. guilty of no fraud or gross negligence, 259. was permitted to recover money on the 97. McElfresh v. Kirkendall, 36 la. insurance policy, although his insane 224. Exemplary damages may be al- wife had set the buildings on fire, lowed in such action. Fowler v. Chi- 1. Handy v. Foley, 121 Mass. 259. Chester, 26 Ohio St. 9. 2. Jones v. Monson, 137 Wis. 478, 98. Austin v. Wilson, 4 Cush. 119 N. W. 179. (Mass.) 273; McQueen v. Fulgham, 3. Missio v. Williams, 129 Tenn. 504, 27 Tex. 463; Baker v. Young, 44 111. 167 S. W. 473. 42; Enders v. Beck, 18 la. 86. As to 4. Coolidge v. Parris, 8 Ohio St. suits to recovery penalties for usury, 594. see Jackson v. Kirby, 37 Vt. 448; 5. Missio v. Williams (Tenn.), 167 Porter v. Mount, 43 Barb. (N. Y.) S. W. 473, L. R. A. 1915A 500. 42i2. 6. Williams v. Fulkes, 103 Ark. 196, 99. GrifBn v. Eeynolds, 17 How. 146 S. W. 480; Jackson v. Williams, (U. 8.) 609 ; Eoadcap v. Sipe, 6 Gratt. 92 Ark. 486, 123 S. W. 751; Crawford (Va.) 213. See Miller v. Sweitzer, 22 v. McElhinney (la.), 154 N. W. 310; Mich. 391; Tobey v. Smith, 15 Gray Poling v. Pickens, 70 W. Va. 117, 73 (Mass.), 535. For a peculiar state of 8. E. 251; Kellar v. James, 63 W. Va. facts, see Rowing v. Manley, 57 Barb. 139; 59' 8. E. 939; Minor v. Mapes, (N. Y.) 479. And as to suit for the 102 Ark. 351, 144 S. W. 219; Graham conversion of stolen millinery by the v. Tucker, 56 Fla. 307, 47 So. 563. wife, see Heckle v. Lurvey, 101 Mass. § 130 HUSBAND AND WIFE. 154 not oommitted in the management of her separate estate.' Other courts have held that the common-law rule is entirely abrogated by Married Women's Acts, vesting the wife with entire control of her separate estate without her husband's interference/ and modem policy, in giving the wife her separate property, inclines to hold her responsible, like a single woman, for her civil injuries to others. Hence, numerous local statutes in the United States have recently- taken away the husband's legal liability for his wife's private wrongs, committed upon others without his participation and privity, and have fastened it upon her separate estate instead;* especially if committed in his absence, ^"or else they have limited his liability for her frauds and injuries to that of a surety.^^ Hence, as such statutes usually run, the joinder of the husband as defendant is neither necessary nor proper, where one sues for a tort or fraud of the wife committed with reference to her sepa- rate estate, and by the wife alone ; while the wife, on her part, is liable substantially in the same manner and to the same extent for frauds or torts committed in its management as upon her con- tracts relating to it.^^ 7. Henley v. Wilson, 137 Cal. 273; 70 Pac. 21, 58 L. E. A. 941 ; Williams v. Fulkes, 103 Ark. 196, 146 8. W. 480 (slander) ; Polong v. Pickens, 70 W. Va. 117, 73 S. E. 251. 8. Martin v. Bobson, 65 111. 129, 16 Am. K. 578 ; Hagebush v. Bagland, 78 lU. 40; Norris v. Corkill, 32 Kan. 409, 4 Pae. 862; Lane v. Bryant, 100 Ky. 138, 37 S. W. 584 ; Culmer v. Wilson, 13 Utah, 129, 44 Pae. 833 ; Schuler v. Henry, 42 Colo. 367, ff4 Pae. 360, Hageman v. Vanderdoes (Ariz.) 138 Pae. 1053, L. E. A. 1915A 491 (as- sault) ; Harrington v. Jagmetty, 83 N. J. L. 548, 83 Atl. 880; Padden v. McKinney (Vt.), 89 Atl. 357; Tanzer V. Bead, 160 App. Div. 584 (driving automobile), 145 N. Y. Supp. 708. 9. Teal v. Chancellor, 117 Ala. 612, 23 So. 651; Austin v. Cox, 118 Mass. 58; McCarty v. De Best, 120 Mass. 89; Bici v. Mueller, 41 Mieh. 214, 2 N. W. 23; Gustine v. Westenberger, 224 Pa. 455, 73 A. 913; Grouse v. Lubin, 260 Pa. 329, 103 A. 725 ; Dear- dorff V. Pepple, 35 Pa. Super. 224; Eillingsworth v. Keen, 89 Wash. 597, 154 P. 1096; Burt v. McBain, 29 Mich. 260; Missio v. Williams, 129 Tenn. 504, 167 S. W. 473; Strubing v. Mahar, 46 App. Div. 409, 61 N. Y. S. 799 ; Fadden v. McKinney, 87 Vt. 316, 89 A. 351; Eussell v. Phelps, 73 Vt. 390, 50 A. 1101. 10. Schuler v. Henry, 42 Colo. 367, 94 P. 360, 14 L. B. A. (N. S.) 1009; Murray v. Newmyer (Colo.), 182 P. 888 ; Eadke v. Schlundt, 30 Ind. App. 213, 65 N. E. 770 (negUgence) ; Lane V. Bryant, 100 Ky. 138, 18 Ky. Law Bep. 658, 37 S. W. 584, 36 L.^E. A. 709; Miles v. Salisbury, 21 Ohio Cir. Ot. 333, 12 O. C. D. 7 (holding a hus- band not liable for malicious prosecu- tion for an arrest caused by the wife) ; Hinski v. Stern, 68 Pa. Super. 441; Pace V. Hoban, 27 Pa. Super. 574 (holding that a husband was not lia- ble for mesne profits where the wife wrongfully assigned to another). 11. Brown v. Kemper, 27 Md. 666.. 12. Quilty V. Battie, 135 N. T. 201, 32 N. E. 47, 17 L. B. A. 521 ; Hage- man V. Vanderdoes, 15 Ariz. 312, 138 P. 1053; Henly v. Wilson, 137 CaL 155 TOETS OF WIFE. § 131 Even in States -where the husband is not held liable for the torts of the wife committed out of his presence he may be held for her negligence in driving an automobile which he has furnished for her. This is, however, on the theory of agency and not of the matrimonial relation.^' Under the Missouri statute the husband is exonerated from liability for his wife's antenuptial torts and torts committed in the management of her separate estate, but remains liable for personal torts committed during coverture, like slander and alienation of affection.^* Under the North Carolina statute the husband is jointly liable with his wife for all her torts committed while the spouses cohabit.^^ Under the South Dakota statute spouses are jointly liable for torts committed by one at the instigation of the other.^° In Illinois the husband is liable for his wife's torts as his agent,^^ but not for her other torts except where he would have been liable if the marriage did not exist.^* § 131. Wife's Liability under Statute. For injuries disconnected with her separate property she, and not her husband, is held liable under some Married Women's Acts. Thus, she is to be sued alone for wilfully setting fire to her own insured house to another's injury ;'° for careless driving;^" for 273, 70 p. 21, 93 Am. St. E. 160, 58 227 Pa. 488, 76 Atl. 219, 29 L. E. A. L. E. A. 941; Davidson v. Manning, (N. 8.) 856; Birch v. Abererombie, 168 Ky. 288, 181 S. W. 1111; Boutell 74 Wash. 486, 133 Pac. 1020. See, T. Shellaberger (Mo), 174 S. W. 384, contra, Van Blaricom v. Dodgson, 220 387; Nichols v. Nichols, 147 Mo. 387, N. T. Ill, L. E. S. 1917F 363, 115 ' 48 S. W. 947; Bruce v. Bombeck, 79 N. E. 443; McFarlane v. Winters, 47 Mo. App. 231; Harrington v. Jag- tTtah, 598, 155 Pac. 437, L. E. A. metty, 83 N. J. Law 548, 83 A. 880; 1916D 618. Tanzer v. Bead, 160 App. Div. 584, 14. Boutell v. Shellaberger (Mo.) 145 N. Y. S. 708; Baum v. Mullen, 47 174 S. W. 384, L. E. A. 1915D 847; N. Y. 577; Eowe v. Smith, 55 Barb. Taylor v. PuUen, 152 Mo. 434, 53 S. (N. Y.)417; Lansing v. Holdridge, 58 W. 1086; Nichols v. Nichols, 147 Mo. How. Pr. (N. Y.) 449; Ferguson v. 407, 48 S. W. 947. Brooks, 67 Me. 251; Moore v. Doerr, 15. Brittingham v. Stadiem, 151 N. 199 Mo. App. 428, 203 S. W. 672; C. 299, 66 S. E. 128. Aronson v. Eicker, 185 Mo. App. 528, 16. Bebout v. Pense (S. D.), 150 N. 172 S. W. 641; Claxton v. Pool, 182 W. 289. Mo. App. 13, 167 S. W. 623, 197 S. 17. McNemar v. Cohn, 115 111. App. W. 349. 31 (negligence) ; Vannett v. Cole (N. 13. Hutchins v. HafEner (Colo.) 167 D.), 170 N. W. 663. Pac. 966; Lemke v. Ady (la.) 159 N. 18. Christensen v. Johnston, 207 111. W. 1011 ; Stowe v. Morris, 147 Ky. App. 209. 386, 144 S. W. 52, 39 L. E. A. (N. S.) 19. Lansing v. Holdridge, 58 How. 224; Missell v. Hayes, 86 N. J. L. Pr. (N. Y.) 449. 348, 91 Atl. 322; Moon v. Matthews, 20. Eieei v. Mueller, 41 Mich. 214. § 131 HUSBAND AND WIFE. 156 trespass ;^^ for obstructing a neighbor's enjoyment of his own. prem- ises ;^^ for carelessly injuring property bailed to her f^ for a slander by her of which her husband is not cognizant/* and the like. Pro- vided, in all fit cases, that, by demand or otherwise, the wife be put in the position of wrong-doer, as under the ordinary law of torts.'' For her frauds, too, the wife is usually held responsible in many States. As where she represents herself as a single woman, and obtains false credit.'^ But where property is conveyed to the wife in fraud of her husband's creditors, she is not liable usually to a judgment in personam, nor are her executors ; but the only remedy available to the injured parties is to pursue the property.'"' The wife may be liable to one who is injured in the husband's house simply on the ground that she promised the plaintiff to leave a certain light burning when she extinguished the light and the plaintiff in the exercise of her duties of nurse was injured thereby.^' Under the New Jersey, Vermont and West Virginia Married Women's Acts she is liable for her torts committed in the management of her separate estate.'* We here assume that the husiband has not connived at or abetted the wife's tort. If he be a party to the fraud or injury, he is answerable on his own part like any one sui juris. As to the married woman herself, courts still disincline to hold her liable upon any theory of principal em- ploying agents, or where the wrongful act was committed without her personal knowledge and sanction.*" And where the husband appears to have compromised his wife in some transaction, es- 21. Ferguson v. Brooks, 67 Me. 351 ; married woman is not fully admitted Carpenter v. Vail, 36 Mich. 226; by legislators, frauds relating to her Dailey v. Houston, 58 Mo. 361. The general contracts are not always thus rule of the wife 's liability for trespass punishable. See Felton v. Eeid, 7 of her stray animals is strictly en- Jones (N. C.) 269. forced in New Tori. Eowe \. Smith, 27. Phipps v. Sedgwick, 95 XJ. S. 3. 45 N. Y. 230. 28. McLeod v. Bawson, 215 Mass. 22. Austin v. Cox, 118 Mass. 58. 257, 102 N. E. 429^, 46 L. E. A. (N. 23. Hagebush y. Eagland, 78 111. 40; S.) 547. Gilbert v. Plant, 18 Ind. 308. 29. De WoM & Co. v. Lozier, 68 N. 24. MeClure v. McMartin, 104 La. J. Law, 103, 52 A. 303; Eussell v. 496, 29 So. 227 (slander). Phelps, 73 Vt. 390, 50 A. 1101; Leros 25. Campbell v. Quaekenbush, 33 v. Parker, 79 W. Va. 700, 91 S. E. Mich. 287 ; Janseu v. Varnum, 89 111. 660. 100. 30. See Jansen v. Varnum, 89 ni. 26. Goulding v. Davidson, 26 N. Y. 100. 604. But as the contract capacity of a 157 TOETS OF WIFE. § 133 pecially one relative to business or property, whose wrongfulness he was likely to have understood more readily than herself, or where he coerced or misinformed her, and agency on his part, which shall charge her with the mischief, should not readily be assumed. Hence, as it is said, perhaps broadly, a wife shall not be held liable for the tort of her husband by reason of a prior assent, advice, or authorization by her, or a passive ac- quie&ence, if she does not participate as an actor, and has not profited or obtained benefit for her separate estate thereby.^^ For a joint trespass or wrong by husband and wife, it may be presumed still that the latter was under the former's coercion,*^ though, such presumption being far from conclusive, a wife is now held respon- sible, under statute, for wrongs she commits deliberately in her husband's company, and, like other parties not under disability, for what she plainly and understandingly authorizes and ratifies to another's injury.'^ § 132. For Torts of her Agent. Under Married Women's Acts a wife may be liable for the torts of her agent within the scope of his authority.^* Thus she has been held liable for her husband's fraud in exchanging her prop- erty as her agent,*° but not for his negligence in operating her auto- mobile in her absence and without her consent.^" § 133. Damages. A husband is not liable for exemplary damages even when such damages are assessed against her,*' if the tort was without his knowledge or participation.'* The fact that the husband is made responsible by the fact of coverture, and did not commit the wrong in person, cannot go in mitigation of damages.*" 31. Vanneman v. Powers, 56 N. T. v. Eucker, 177 Mo. App. 402, 164 S. 39. "W. 170. 32. See Dailey v. Houston, 58 Mo. 35. Firebaugh v. Trough (Ind.), 361. 107 N. E. 301. 33. Ferguson v. Brooks, 67 Me. 251; 36. Brenner v. Goldstein, 171 N. Y. Sherman v. Hogland, 73 Ind. 472. S. 579. 34. Manson v. Dempsey, 88 S. C. 37. Price v. Clapp, 119 Tenn. 425, 100 Ky. 361, 18 Ky. Law, 792, 38 S. 105 S. W. 864. W. 494 (false representation), Shane 38. Price v. Clapp, 119 Tenn. 425, representation), 38 S. "W. 494; Shane 105 S. W. 864. V. Lyons, 172 Mass. 199, 51 N. B. 976, 39. Austin v. Wilson, 4 Cush. 70 Am. St. E. 261 (negligence) ; Long (Mass.) 273. § 134 HUSBAND AND WIFE. 158 § 134. English Rule in Equity. In, England, where the coverture doctrine appears still to pre- vail in this respect, settlements to the wife's separate use, under a restraint of anticipation, cannot be evaded or set aside; that clause strictly operating even in case of the wife's gross fraud to another's injury.*" And the rule strictly obtains in courts of chancery, that the separate estate of a married woman is not liable for her torts or breach of trust.*^ 40. Stanley v. Stanley, 7 Ch. D. 589. Eq. 321; Marler v. Tommas, L. B. 17 41. 76.; Wainford v. Heyl, L, B. 20 Eq. 8. 159 •WIFE AS AGENT OF HUSBAND. § 135 CHAPTER IX. THE WIFE AS AGENT OF THE HUSBAND. Bbction 135. General Considerations. 136. When Wife may bind Husband as Agent. 137. Extent of Power as Agent. 138. Evidence of Agency. 139. Wife's agency under Express Power. 140. Wife's agency under Implied Power. 141. In Household matters and Care of Husband's Properly. 142. As to Eeal Estate. 143. Effect of Contract by Wife in her own name. 144. Effect of Husband's Eatification of Wife's Unauthorized Acts. § 135. General Considerations. Althougli the wife, as such, has no power to make a oontraet, she is allowed at the common law to bind her husband in certain cases as his agent. Her authority may be general or special, express or implied. Blackstone says that the power of the wife to act as attorney for her husband implies no separation from, but is rather a representation of, her lord.*'' Whenever the husband expressly empowers his wife to make a contract for him, he will be bound as in the case of any other principal. And he may bind himself in like manner for any unauthorized contract proceeding from his wife as agent, by subsequent conduct on his part amounting to ratification. But greater difficulty arises in determining his lia- bility upon contracts where the authority is not express, but only implied. How far does the law go in presuming against the hus- band, and what are the proper limits of an implied authority in the wife to bind him by her contracts ? This is an important in- quiry which we shall presently consider. But let us premise, as a suitable conclusion from the preceding sections, t!hat the husband may be bound in one of two ways, either upon his own contract or upon that made by the wife as his agent ; and hence he may be held liable because the debt or obligation was his own, or because his wife represented him. The natural effect of his joining with her in executing a contract or instrument would be to render it his individual obligation, since he is sui juris;*^ 42. 1 Bl. Com. 442 ; 2 Man. & Gr. 172 ; Mizen v. Peek, 3 M. & W. 4S1. 43. Dresel v. Jordan, 104 Mass. 497. § 136 HUSBAND AND WIFE. 160 while if she executed alone and without a suitable agency on his behalf, the obligation would be altogether void. § 136. When Wife may bind Husband as Agent. The usual cases in which a wife binds the husband on contracts not for necessaries may be reduced to two classes; the one where the nature of his employment is such that the wife is expected to share in it; the other where he is absent from home and some one must carry on the household and small business matters.^* Instances of the first class are those of farmers, victuallers, and small shopkeepers.*^ While, on behalf of married women, ex- tended authority is to be implied from the fact of a husband's absence, as in our second class, every wife will readily be regarded as her husband's representative in the ordinary househould pur- chases, such as provisions and furniture, although the articles may not be strictly included among her personal necessaries. They might be called household necessaries. But where the husband is a laboring man, or in general a person obliged to be absent from his home much of the time, the presumption of the wife's agency would be stronger and extend further. If the occupation be that of carrying on a farm, or if small bills are to be collected, such as he and his wife have always attended to, her powers in his absence take a still wider scope; and this too seems reasonable. Usage will go far in determining such questions. But since persons carry- ing on a large business, totally distinct from their household occu- pation, are not in the habit of employing their wives to manage it for them, strong proof of agency for such transactions should be required to warrant a wife's interference during her husband's absence ; the more so if he has left other competent agents of his own to manage the business for him. So, too, in large pecuniary affairs, of whatever nature, her agency is not readily inferred; while it often is in collecting small rents and paying small bills ; such payments and receipts being permitted to bind her husband. And although a wife may, by actual authority from her husband, 44. Qtt. whether the wife 's power to erby, 43 Conn. 546. From the absence dispose of her husband's property for of a husband in distant military or necessary purposes may arise by impli- naval service may be inferred an en- cation from the fact of his absconding. largement of the wife 's authority. Bu- Butts V. Newton, 29 Wis. 632. The ford v. Speed, 11 Bush (Ky.) 338., doctrine of some such extended agency 45. See "Webster v. MoGinnis, 5 where the husband was in jail might Binn. (Pa.) 235; Eotch v. Miles, 3 support the decision in Ahern v. East- Conn. 638. 161 WIFE AS AGENT OF IITJSBAND. § 136 indorse his notes, mortgage and dispose of his personal property, conduct his business as a trader, and even borrow money for carry- ing on his business on the pledge of his credit, signing the notes and securities in his behalf, — for all this is sometimes done, — such authority requires strict proof; or at least conduct on the part of the husband showing his own approval of such hazardous proceedings on her part.** The difficulty of laying down a more positive rule on this subject is shown by two cases whioh came be- fore the courts of two of our neighboring States, not many years since, on a presentation of facts almost identical, but where the re- spective decisions were precisely opposite. A farmer was absent from home. His wife had been left in charge of the farm, but without express authority from him. A creditor attached the real estate and crops; and she permitted the hay, after attachment, to be used by the officer ; to the advantage of the creditor, or at least to her husband's detriment. In the Vermont case it was held that the wife had a prima facia authority to bind her husband ; in the Connecticut case it was held that she had not, iN'either of these tribunals erred in their statement of leading principles ; but their duty here being rather an application of broad rules to facts, than a clearly legal deduction, they differed just as two men would have done, sitting upon a jury.*^ 46. Church v. Landers, 10 Wend. v. Naff, 4 Cold. (Tenn.) 370. See 1 urts of equity, which have taken this subject under their especial 91. Brown v. Daugherty, 120 F. 96. Anderson v. Anderson, 11 Bush. 526; Hart v. Leete, 104 Mo. 315, 15 (Ky.) 327. S. W. 976. 97. Arnold v. Limeburger, 122 Ga. 92. Walker v. Walker, 41 Ala. 353. 72, 49 S. E. 812. 93. Crawford v. Clark, 110 Ga. 729, 98. Harper v. Archer, 28 Miss. 212. 36 S. B. 404 ; Brantley v. Porter, 111 See also Ex parte Norton, 35 E. L. & Ga. 886 36 S. E. 970. Eq. 609 ; Montefiore v. Belireno, L. R. 94. Norse v. Eay, 1 Dane Abr. 1 Eq. 171 ; Wiggins v. Blount, 33 Ga. (Mass.) 351; Hapgood v. Houghton, 409. 22 Pick. (Mass.) 480; Mason v. 99. Powes v. Marshall, 1 Sid. 172; Homer, 105 Mass. 116. Maeq. Hus. & Wife, 19, 20; 1 Bac. 95. 1 Schouler Pers. Prop. 32-37. Abr. 700, tit. Baton & Feme, V.; 1 Eoper Hus. & Wife, 169 ; 1 Vent. 261. § 159 HUSBAND AND WIFE. 180 control, seem to lay down variable rules ; and it must be confessed that the law of reduction is so built upon exceptions, that one may more readily determine what acts of the husband do not, than what acts do, bar the wife's survivorship. Another difficulty in dealing with this subject appears from the circumstance that personal prop- erty is rapidly growing, and species of the incorporeal sort are developed quite unknown to the old common law; while, on the other hand, the doctrine of the wife's separate estate has expanded so fast as to furnish already new elements of consideration for most of the latest reduction cases, threatening to extinguish at no distant day all the old learning on the subject, even before its leading principles could be clearly shaped out in the courts. Reduction during the minority of an infant husband is good, though he dies before majority.^ § 159. Effect of Waiver or Failure to Reduce to Possession. The husband might waive his right and permit her to retain the property,^ and might bind himself by an agreement that she retain it as her separate estate.^ Such a waiver was inferable from his conduct,* as where he gave her a note payable to her for money received as her distributive share of an estate,' or where he allowed her to deal with her personal property as she wished,* or where he treated the property as that of the wife.^ Likewise, the appropria- tion of the spouse as husband may be negatived by proof of his declarations and acts and conduct when the supposed appropriation took place.® 1. Ware v. Ware, 18 Gratt. (Va.) lifetime of the wife a gilt fb Bbr of 670. As to reduction by the husband the chattels, title to which the hus- o£ an infant wife, see Shanks v. Ed- band acquired by the marriage, or mondson, 28 Gratt. (Va.) 804. such a gift of the proceeds of the sale 2. Boldriek v. Mills, 29 Ky. Law, of such chattels before the same were 853, 96 S. W. 534; White v. Clasby, invested in land. Ellington v. Har- 101 Mo. 163, 14 8. W. 180; Borland ris, 127 Ga. 85, 56 S. E. 134; Smith v. V. Dorland, 59 App. Div. 37, 69 N. T. Farmers' & Merchants' Nat. Bank, 57 S. 179 (where the husband agreed to Ore. 83, 110 P. 410. hold in trust for the wife). 5. Bennett v. Bennett's Adm'r, 134 3. Lovewell v. Schoolfield, 217 E. Ky. 444, 130 S. W. 372; Struss v. 689, 133 C. C. A. 449^. Norton, 20 Ky. Law, 1116, 48 S. W. 4. Mere admissions by a husband 976. who has purchased realty with per- G. Boynton v. Miller, 144 Mo. 681, sonalty belonging originally to his 46 S. W. 754. wife, but which has vested in him by 7. Bidwell v. Beekwith, 86 Conn. his marriage, that he holds the land 462, 85 A. 682. for the benefit of the heirs of his 8. Meyer's Appeal, 77 Pa. 482; wife, will not devest the title of his Perry v. Wheelock, 49 Vt. 63. heirs, unless there has been during the 181 wife's peesonal peopeety. § 159 Marriage operates, not as an absolute gift of such property, but rather as a conditional gift, the condition being that the husband shall do some act, while coverture lasts, to appropriate the choses to himself. If he happen to die before he has done so, such choses, not having been reduced to possession, remain the property of the wife, and his personal representatives have no title in them.* But this applies only to outstanding things in action; for some may have been reduced to possession by the husband during his life- time, and some may not. If the wife die before the husband has reduced the chose to possession, he has no title in it as huslband, but it goes, strictly speaking, to her administrator or personal rep- resentative," though under our statutes the husband has commonly the right both to administer and inherit a good part of his wife's personal property, and she cannot will otherwise.^^ With respect to such choses in action as may accrue to the wife solely, or to the husband and wife jointly, during coverture, the same doctrine applies. The husband may disagree to his wife's interest and make his own absolute at any time during coverture by recovering in suit in his own name or otherwise reducing them to possession. But until such disagreement, such choses in action belong to the wife, and, if not reduced into possession by the hus- band, will likewise survive to her.** The husband's right to reduce his wife's choses m action into possession is one of election merely. He may therefore neglect or refuse to do so, and thus keep the property vested in his wife.*' 9. Co. Litt. 351; 1 Bright Hub. & 11. See, as to dissolution by death, Wife, 36; 2 Kent Com. 135 et seq., post, Vol. II. and cases cited; Seawen v. Blunt, 7 12. Coppin v. , 3 P. Wms. 497; "Ves. 294; Fleet v. Perrins, L. E. 3 Day v. Padrone, 3 M. & S. 396, n.; Q. B. 536; Langham v. Nenny, 3 Ves. Howell v. Maine, 3 Lev. 403; Wild- 467; Tritt v. Colwell, 31 Pa. 228; man v. Wildman, 9 Ves. 174 ; 1 Bright Needles v. Needles, 7 Ohio St. 432; Hus. & Wife, 37; 2 Kent Com. 135, Burieigh v. Coffin, 2 Fost. (N. H.) and cases cited; Wilkinson v. Charles- 118; Whiteman v. Whiteman (Del), worth, 11 Jur. 644; Standeford v. 105 A. 787 ; Copeland v. Jordan, 147 Devol, 21 Ind. 404. WIPE. 258 by covenants in her deed,°^ or lease of such estate,*^ as well as in her husband's deed, in which she joins.*' In Maryland she is liable on covenants only when the deed relates to her separate estate,'* and in Indiana her liability is limited to covenants of title.®^ In Nebraska her liability on such covenants is limited to the property conveyed and will not pass after acquired property." Under the Idaho Married Women's Act she is not liable on such covenants in a deed which S'he joins merely to release dower and homestead.®'' In Michigan it is held that she wiU be liable on the covenants in a joint deed where she receives the consideration, the covenants being joint in that case.®' In Massachusetts the wife is not liable on covenants in a joint deed conveying her property, except where the covenants operate as an estoppel.^ In Utah she is liable on such covenants to the immediate grantee only, her cove- nants being personal, and not running with the land.^ The liability of a wife on covenants in a deed which she joins to release dower or homestead is governed by the law of the State where the land lies though the deed is executed in another State.' 91. McGuigan v. Gaines, 71 Ark. 96. Decree (C. C; Burns v. Cooper, 614, 77 S. W. 52. 140 F. 273. 92. Winestine v. Liglatski-Marks 97. Humbird Lumber Co. v. Doran, Co., 77 Conn. 404, 59 A. 496. 24 Ida. 507, 135 P. 66; Village of 93. Fisher v. Clark, 8 Kan. App. Western Springs v. Collins, 98 F. 9'33, 483, 54 P. 511; Bolinger v. Brake, 4 40 C. C. A. 33. Kan. App. 180, 45 P. 950 (affd., 57 98. Agar v. Streeter (Mich.), 150 Kan. 663, 47 P. 537); Security Bank N. W. 160. of Minnesota v. Holmes, 68 Minn. 538, 1. Wing v. Deans, 214 Mass. 546, 71 N. W. 699-; Wasserman v. CarroD, 103 N. E. 313. 2 Pa. Super. 551. 2. H. T. & C. Co. v. Whitehouse 94. Pyle v. Gross, 92 Md. 132, 48 (Utah), 154 P. 950. A. 713. 3. Village of Western Springs v. 95. MUler v. Miller, 140 Ind. 174, Collins, 98 F. 933, 40 C. C. A. 33; 39 N. E. 547. Hunter v. Conrad, 94 F. 11, 259 PIN-MONEY. § 243 CHAPTEE XIV. THE wife's pin-money. Section 843. The Wife's Pin-Money; Nature and Origin. 244. Separate Estate and paraphernalia distinguished. 245. Arrears. 246. Housekeeping Allowance. § 243. The Wife's Pin-Money; Nature and Origin. The wife's pin-money constitutes a feature of English marriage settlements in modem times. Pin-money may be defined as a cer- tain provision for the wife's dress and pocket, to which there is annexed the duty of expending it in her " personal apparel, deco- ration, or ornament."* Upon a somewhat enlarged construction, pin-money is in the nature of an annuity to pay the wife's ordinary personal expenses ; and is rather the privilege of the wealthy than the poor. A person in an humble station of life pays his wife's bills as he pays his own. A person in a station rather higher is accustomed to make, for common convenience, an allowance to his wife of so much for housekeeping expenses, if she takes charge of them, and so much over for her own dress and the dress of children. A person in a still higher station makes a general arrangement, which probably extends over years, if not over the whole coverture. But a person in a yet more elevated station makes a special stipulation by the marriage settlement, which is, as it were, saying, " You, the wife, shall not be reduced to the somewhat humiliating necessity of dis- closing to me every want of a pound to keep in your pocket, or of taking my pleasure and obtaining my consent every time you want to go to the milliner's shop to order your dress ; but you shall have so much, consistent with my estate and my income, which you shall retain apart from me and exempt from my control." And this supply, as Lord Brougham remarks, is the wife's pin-money." The exact period when pin-money was first introduced into Eng- land is not knovm. Lord Brougham inclines to ascribe it to the feudal times.* But there is equally good authority for fixing the date at the Eestoration; and the lawyers resort to Addison's 4. Per Lord Langdale, Jodrell v. 5. .Howard v. Digby, 2 CI. & Fin. Jodrell, 9 Beav. 45 ; Howard v. Digby, 654. 2 CI. & Fin. &54. 6. H- 676. § 246 HUSBAND AND WEFE. 260 " Spectator " in proof of the latter supposition.' The popular name of this provision scarcely suggests its real significance; for, so far from being a petty allowance, it is often of the most liberal amount imaginable.* The subject of the wife's pin-money seemsi to haye received little attention in this country.* And in England few cases of the sort have ever arisen. It is found more convenient in marriage contracts to setle a cerain allowance upon the wife by way of separate estate, which allowance is subject to the usual incidents of separate property. Decisions as to pin-money and separate estate are frequently confounded.^" § 244. Separate Estate and paraphernalia distinguished. The wife's pin-money differs from her separate estate in being a gift subject to conditions, and not at her absolute disposal. It differs from her paraphernalia in being subject to her control dur- ing marriage, and not awaiting the husband's death.^^ § 245. Arrears. The leading English case on this subject is Howard v. Dighy, W'hich went to the House of Lords in 1834, and whose main de- cision was to the effect that the personal representatives of the wife could not recover arrears.^^ The correctness of its principle has been questioned by some writers.^* In general, the usual equity rule against claiming more than one year's arrears appears to apply to separate estate and pin-money alike. ^* In other ways, too, the wife's claim may be barred.^^ § 246. Housekeeping Allowance. The wife was formerly supposed also to gain a title to savings out of her housekeeping allowance.^* So where the husband allowed the wife to make profit of butter, eggs, poultry, and other farm produce, which allowance he called her pin-money, it was held that 7. Spectator, 395. See Peaehey 11. Maoq. Hus. & Wife, 318; Mar. Settl. 300 ; Sugd. Law Prop. 165. Peaehey, Mar. Settl. 298. 8. In one reported English case, by 12. 2 CI. & Fin. 670. no means recent, £13,000 a year was 13. Sugd. Law Prop. 170. See secured to the wife as her pin-money. Peaehey, Mar. Settl. 307 ; Maeq. Hus. See 2 Euss. 1, and n. to Macq. Hus. & Wife, 319, n. & Wife, 318. 14. See Peaehey, Mar. Settl. 303, 9. But see Miller v. Williamson, 5 and cases cited. Md. 219. 15. Arthur v. Arthur, 11 Ir. Eq. 511. 10. See Lord Brougham, in Howard 16. Paul Neal's Case, Pree. in Ch. V. Dighy, 2 CI. & Pin. 670, comment- 44, 2fl7. But see Tyrrell's Case, ing upon 2 Eoper, Hus. & Wife, 133. Freem. 304. In this case the whole subject receives ample discussion. 261 PIN-MONET. § 246 she acquired a separate ownership therein.^' But these cases rest upon questionable authority.^* And more recently it has been decided that, where the wife of a fanner, with his knowledge and sanction, deposited the produce of the surplus butter, eggs, and poultry with a firm in her own name, and he called it " her money," and on his death-bed, gave his executor directions to remove the money, and do the best he could with it for his wife, such evidence was insufficient to establish a gift between them, and that the hus- band had made neither the firm nor himself trustee for his wife." In all cases of this sort the husband's permission, he not having deserted her, constitutes an important element of the wife's title. And the mere fact that a wife is in the use and enjoyment of clothing, or other personal property, is held insufficient to es- tablish her right to a separate estate therein.^" 17. Slanning v. Style, 3 P. Wms. cited hereia with approval. And see 337. Eider v. Hulse, 33 Barb. (N. Y.) 264, 18. See Maeq. Hus. & Wife, 320. for a similar American decision. 19. Mews V. Mews, 15 Beav. 529. 20. State v. Pitts, 12 S. C. 180; See McLean v. Longlands, 5 Ves. 78, Paraphernalia, post, Vol. II. § 247 HUSBAND AND WIFE, 262 CHAPTER XV wife's equitable separate estate. Section 247. Origin, Nature and History; In England. 248. In the United States. 249. Statutory Separate Estate Distinguished. 250. When Separate Estate Cognizable in Courts of Iiaw. 251. Effect of Renunciation by Wife. 253. Effect of Fraud, Insolvency or Bankruptcy. 253. When Separate Estate may be Ambulatory. 254. Creation in General. 255. By Parol Gift. 256. By Contract. 257. By Instrument Vesting Power of Appointment in Wife. 858. Gift of Income of Fund as Gift of Capital. 259. Savings from Wife's Income. 260. Necessity of Trustee. 261. Construction of Instrument Creating Estate. 2«2. What Words are Sufficient to Create Estate; In England. 263. In the United States. 264. What Words are Insufficient to Create Estate; In England. 265. In the United States. 266. Necessity of Preserving Identity of Estate. 267. Separate Estate as Trust Fund for Payment of Wife's Debts. 268. Duration of Estate. 269. Husband's Eights on Wife's Decease. 270. What Will Bar Husband's Eights. 271. Effect of Estate on Husband's Marital Obligations. 272. Eights of Bona Fide Purchasers from Husband. 273. Bestraint on Anticipation or Alienation. 274. Wife's Power to Dispose of or Charge Separate Estate ia General; In England. 275. In the United States. 276. Necessity of Concurrence of Trustees. 277. Form and Eequisites of Deed. 278. Of Eeal Estate. 279. Of Income or Profits. 280. Contracts Relating to Separate Estate in General. 281. Contracts not Beneficial to Wife. 282. Mortgage or Pledge to Secure Husband's Debts, 283. Gifts and Transfers to Husband. 284. Enforcement. 285. Estoppel to Claim Property. § 247. Origin, Nature and History ; In England. Emerging from coverture and the common law, we come out into the light of equity; and here all things assume a new aspect. The married woman is no longer buried under legal fictions. She 263 EQUITABLE SEPAKATE ESTATE. § 247 ceases to hold the strange position, of a being without an existence, one -whose identity is suspended or sunk in the status of her hus- band ; she becomes a distinct person, with her own property rights and liabilities. Her condition is not as independent as before marriage; this the very idea of the marriage relation and the dis- abilities of her sex forbid. But she is dependent only so far as the laws of nature and the forms of society make her so ; while her comparative feebleness renders her the special object of chancery protection, whenever the interests of herself and her husband clash together. She may contract on her own behalf ; she may sue and be sued in her own name ; she may hold lands, goods, and chattels in her own right, which property is known as the wife's separate estate, or estate limited to the wife's separate use. The doctrine of the wife's separate estate originated in the spreading conviction that it was expedient for the interests of society that means should exist by which, upon marriage, either the parties themselves by contract, or those who intended to give bounty to a family, might secure property without that property being subject to the control of the husband.^^ Therefore, the equitable doctrince of a separate estate was devised to prevent the acquisi- tion of the wife's personal property by the husband and the rents and profits of her real estate during coverture,^^ and to protect her from the harsh and unjust dogmas of the common law as to the marital rights of her husband.^* In England that doctrine was established more than a century ago, and to the equity courts belong the credit of the invention.** The equity to a settlement, which we have fully discussed, is part of that doctrine.*' While at common law the separate existence of the wife was neither known nor contemplated, equity considered that a married woman was capable of possessing property to hej* own use, independently of her husband ; and the courts gradually widened and developed this principle until it became fully settled that, however the wife's property might be acquired, whether through contract with her husband before marriage, or by gift from him or from any stranger independently of such contract, equity would protect it, if duly set 21. Rennie v. Eitehie, 12 CI. & Fin. 23. Littleton v. Sain (Tenn.), 150 234; Peachey, Mar. Settl. 2-59; Hatch 8. W. 423, 41 L. R. A. (N. S.) 1118. T. Hatch (Utah), 148 P. 1096; Willi- 24. Harvey v. Harvey, 1 P. Wms. ford V. Phelan, 120 Tenn. 589, 113 124; Woodmeston v. Walker, 2 R. & S. W. 365. M. 205; Tullett v. Armstrong, 1 Beav. 22. Radford v. Carwile, 13 W. Va. 21. 572. 25. Supra, § 175. § 24:8 HUSBAND AND WIFE. 264 apart as her separate estate, no matter though the husband himself must be held as the trustee to support it.^° This great change in the jurisprudence of England was effected by a few great men without any help from the legislature. The court of chancery in this as in other respects recognized its true function of making the law work justice by accommodating its operation to the altered circumstances of society.^^ Obscure and doubtful indications of the wife's separate estate are found as early as the reign of Queen Elizabeth. It seems to have been plainly recognized by Lord Nottingham, Lord Somers, and Lord Cowper. In Lord Hardwicke's time is was perfectly established; and Lord Thurlow, in sanctioning the clause against anticipation^ prevented the wife herself from destroying the fabric which had been reared for her benefit.^' § 248. In the United States. The doctrine of the wife's separate estate is one of peculiar growth and development in this country, though doubtless origin- ating in the maxims of the English chancery, and deriving much of its strength from the splendid accomplishments of Langdale, Thur- low, and Eldon, in their own land. What such men and their suc- cessors effected by judicial policy we have carried into our statutes ; nay, we have gone further. In England the equitable rights of married women are the triumph of the bench; with us the early efforts of the bench have been eclipsed by the later achievements of the legislature, and the judge follows the lawgiver to restrain rather than enlarge. There, in historical sequence, it was proper to study first the equitable doctrine of separate property ; here the statutory doctrine may well take precedence. When this country was first settled', the separate use was but little understood in England. Its development there was gradual, and its final establishment of a later date. Our ancestors brought over the common law with them; but for equity they had little respect. True, it cannot be said that, by the jurisprudence of a single State, property bestowed upon a married woman to her separate use, free from the control and interference of her husband, would remain subject, notwithstanding, to his marital dominion; but prior to the late Married Women's Acts there were, in many 26. Tullett V. Armstrong, 1 Beav. 28. See Pybus v. Smith, 4 Bro. C. C. SI ; Peachey, Mar Settl. 260, and cases 485; Tullett v. Armstrong, per Lord cited. Langdale, 1 Beav. 23; Maeq. Hus. & 27. Maeq. Hus. & Wife, 284. ■^=-=- ""' 265 EQUITABLE SEPAEATE ESTATE. § 248 States, no judicial precedents to combat such an assumption. TKat such trusts might be created was not denied; but whether there were courts with authority to enforce them appeared frequently doubtful.^" In the New England States scarcely a vestige of the separate use was to be found.*" N'ew York, with such eminent chancellors as Kent and Walworth, took the lead in building up an equity system parallel with that of England ; and in the reports of this State are to be found most of the leading cases and the ablest discussions of what may be termed American chancery doctrines. New Jersey recognized the separate use, and her chancery court ex- ercised liberal powers. In Pennsylvania the doctrine was recognized to some extent. The courts of Maryland, Virginia, and the South- em States generally, had frequent occasion to apply the separate- use doctrine; none more so than those of North and South Caro- lina. And it may be remarked that the aristocratic element of society in that section of the country, also a prevalent disposition for family entails, marriage settlements and fetters upon the trans- mission of landed property, aided much in developing therein the English chancery system. So was it in Kentucky and Tennessee, States founded upon like institutions. But as to Ohio, Indiana, Illinois, and the other States erected from what was formerly known as the Northwest Territory, society was modelled more after New England, and we find no clear recognition of the wife's equit- able separate use. Louisiana, and such contiguous States as were originally governed by French and Spanish laws, had more or less of the civil or community system ; and to these States English equity maxims had at best only a limited application. Such, then, is the wife's separate use, viewed in the light of judicial precedents, as known in the United States until very nearly the middle of the 89. It is true that the general recog- denee. The want of a general reeog- aition here of the wife's separate use nition of the wife's separate use, as has been presumed by our text-writers. unfolded in England, aids in ezplain- See 2 Kent, Com. 163; Reeve Dom. ing the curious fact that our States Eel. 1&3 ; 2 Story Eq. Juris., § 1378 et were legislated into a system which seq. We confine our observations to the English chancery had felt eompe- judieial precedents. What Chancellor tent to rear unaided. Kent has to say on the American 30. Jones v. JEtna Ins. Co., 14 Conn, equity doctrines in his work must be 501, intimated that the married wo- taken by the general student with some man could not, in Connecticut, be the qualifications, inasmuch as the learned independent owner of property. But writer draws largely upon his judicial see Pinney v. Eellows, 15 Vt. 525 opinions rendered in a State which (1843). especially favored chancery jurispru- ;§ 250 HUSBAND AKD WIFE. 266 nineteentli century.*^ Wihen recognized and enforced at all, the strict American rule was borrowed from that of England, and «uch, too, has been the later development, as we shall show here- after/^ Equitable separate estates are still possible in the United States even where there is a Married Women's Act»^^ § 249. Statutory Separate Estate Distinguished. We may observe that there is an equitable doctrine on the sub- ject of the wife's separate property and a statutory doctrine. The equitable doctrine is the prior in point of time, and is chiefly, the work of English chancery courts; while the statutory doctrine, which is of later date, is founded in the Married Women's Acts, now familiar in our several States, and their judicial construction. The equitable doctrine is more purely English; the statutory doc- trine more purely American, — though each country has come, ere this day, to borrow in this respect from the other. American cases frequently distinguish still between an equitable separate estate and a statutory separate estate in favor of a wife; but so sweeping is the latest legislation in most States that such a dis^ tinction becomes of comparatively little consequence. In the present chapter, and with reference to Great Britain, our concern is almost exclusively with the remarkable development of an equitable doctrine of separate property. A conveyance or trust duly created for a married woman's separate benefit and duly ex- pressed, is to be regarded as her equitable rather than her statutory estate.®* § 250. When Sepsirate Estate Cognizable in Courts of Law. Although the wife's separate use is the creature of equity, and specially consigned to its watchful keeping, courts of law will some- times afford it protection. This seems to be, however, only in cases where a trustee is interposed to hold the legal estate; for, since 31. See U. S. Eq. Dig. Hus. & Wife, Hamilton v. Bishop, 8 Terg. (Tenn.) 13; Eeade v. Livington, 3 Johns. Oh. 33; Griffith v. Griffith, 5 B. Mon. (N. Y.) 481; Meth. Ep. Church v. (Ky.) 113; MeKennnn v. Phillips, 6 Jaques, 1 Johns. Ch. (N. T.) 65; Whart. 571; Gray v. Crook, 13 Gill Rogers v. Rogers, 4 Paige (N. T.) & J. (Md.) 236; Howard v. Menifee, 516; Vernon v. Marsh, 2 Green Ch. 5 Pike, 668. (N. T.) 502; Steel v. Steel, 1 Ired. 32. See post, as to equitable separ- Eq. (N. C.) 452; Jackson v. McAliley, ate property, § 263. Speers Eq. 303; Boykin v. Ciples, 2 33. Travis v. Sitz (Tenn.), 185 S. Hill Ch. (N. T.) 200, 204; Hunt v. W. 1075. Booth, 1 Freem. Ch. 215 ; Warren v. 34. Pepper v. Lee, 53 Ala. 33 ; Mus- Haley, 1 9. & M. Ch. (Miss.) 647; son v. Trigg, 51 Miss. 172. 267 EQUITABLE SEPAEATE ESTATE. § 253 the common-law courts maintain their own maxims, there should be some person designated to hold the fund for the wife; and such person will he considered as the legal owner so as to save the prop- erty from attachment and sale for the husband's debts,^° § 251. Effect of Renunciation by Wife. A single woman, having a gift expressed to be to her separate use, may renounce such separate use upon her marriage. This will be readily admitted. Yet the courts construe an act of this sort strictly.*" The evidence must be clear in all cases, that a single woman marrying has renounced her separate use ; for it will not be presumed that she means, by the mere fact of matrimony, to relin- quish her control of the property. But antenuptial settlements may be made on reasonable terms by the parties contemplating marriage. And there is nothing to prevent the operation of a trust for separate use from being confined to a particular coverture, where all concerned are so minded. In Siuch cases, however, the wiie marrying again can always stipulate for her separate use.'^ § 252. Effect of Fraud, Insolvency or Bankruptcy. The wife cannot be debarred of her separate estate through the fraud of others ; it must be a fraud to which she is a party, that will bar her beneficial title.** Nor will the insolvency of her hus- band affect her acquisition through a third party.*" Nor can the bankruptcy of the husband, although it suspends the legal remedy against the wife during coverture, afford any ground for proceed- ing in equity to charge her separate estate.*" § 253. When Separate Estate may be Ambulatory. An equitable separate estate cannot exist until the wife is mar- ried,*' but it does not depend on her living with her husband.** But it may sometimes have an ambulatory operation, so as to be 35. See Izod v. Lamb, 1 Cr. & J. 439. It is not essential that the words 35; Davison v. Atkinson, 5 T. E. 434; in a deed designed to create a sepa- Dean v. Brown, 2 Car. & P. 62 ; Maeq. rate estate for a married woman ap- Hus. & Wife, 291. pear in the granting clause or the 36. Johnson v. Johnson, 1 Keen, hahendttm clause. Morrison v. Thistle, «48; Maeq., Hus..& Wife, 306. 67 Mo. 596. 37. Maeq. Hus. & Wife, 307. See 40. IT).; Peace v. Spierin, 2 Desaus. Knight V. Knight, 6 Sim. 121; Brad- (S. C.) 460. ley V. Hughes, 8 Sim. 149; Benson v. 41. Travis v. Sitz (Tenn.), 185 S. Benson, 6 Sim. 126. W. 1075. 38. Jackson v. MeAliley, Speers Eq. 42. Woodward v. Woodward, 148 303. ^^0. 241, 49 8. W. 1001. 39. Holthaus v. Hornbostle, 60 Mo. § 253 HUSBAND AND WIFE. 268 effectual according as the woman happens at the time to be covert or sole. Supposing, then, a gift be made to the separate use of a woman who is single at the time the gift takes effect, it is clear that she shall enjoy the gift absolutely and without restraint. But if she afterwards marries, will the separate use operate ? It wiU, imless by the terms of her marriage settlement she expressly renounces it.** Supposing, however, she outlives her husband, the separate use ceases as in other cases, since it can only be effectual during coverture. But if she marries again, the separate use, consistently with its intention, revives onoe more; and so onward, from time to time, ceasing and reviving alternately, upon each alteration of her personal condition,** with, however, this reservation, that if confined by intendment to a particular husband or a particular coverture, the separate use ceases to operate when that marriage ends.*' As in England, our courts permit an ©state to be so settled on an unmarried female as to exclude the marital rights of any future husband.*" Consistently with its intent, the separate use may have an ambulatory operation, ceasing when the wife be- comes a widow, and, if left undisposed of, reviving, supposing she marries again.*' Where the trust for a wife's sole benefit is ex- pressed to be free from the control of " any present or future hus- band," equity will not set the trust aside on the death of a hus- band.** And where, by a will, personal estate was given to a trus- tee, in trust, to pay over the profits to a daughter of the testator, a married woman, semi-annually, for her sole benefit during her life, the will containing no provision for a second marriage of the daughter, it has been held in North Carolina that upon the death of the husband the separate use ends, and does not revive upon the remarriage of the beneficiary; but that on the contrary the sec- ond husband's marital rights attach upon the property.*' 43. TuUett v. Armstrong, 1 Beav. 46. Beaufort v. Collier, 6 Humph. 1 ; Anderson V. Anderson, 2 Myl. & K. (Tenn.) 487; O'Kill v. Campbell, 3 427; Macq. Hus. & Wife, 305; Duke's Green Ch. (N. J.) 13. As to a settle- Heirs V. Duke 's Devisees, 81 Ky. 308, ment upon several daughters free from 4 Ky. Law Eep. 293. the liabilities and control of their re- 44. Maeq. Hub. & Wife, 306; TuUett speetive husbands, see Ordway v. V. Armstrong, 1 Beav. 1, affd. by Lord Bright, 7 Heisk. (Tenn.) 681. Cottenham, 4 Myl. & Cr. 377 ; Hawkes 47. Post, § 268. V. Hubback, L. E. 11 Eq. 5. 48. O 'Kill v. Campbell, 3 Green Ch. 45. 2 Perry Trusts, §§ 652, 653, and (N. J.) 13. cases cited; Benson v. Benson, 6 Sim. 49. Miller v. Bingham, 1 Ired. Eq. 26 ; 1 Ch. Ca. 307 ; Neweomb v. Bon- (N. C.) 423. ham, 1 Vem. 7; Moore v. Harris, 4 Dr. 33. 269 EQUITABLE SEPAEATE ESTATE. § 254 Conformably to Pennsylvania precedents, it is also held in that State that, unless at the time the tnxst was created the woman was married, or unless in direct contemplation of marriage, a separate use for her benefit cannot be created, so as to take effect if she marries subsequently/" But, as we have seen, the English rule is to the contrary ; or in other words that a trust for separate use may be effectually created, notwithstanding the woman is unmar- ried, and contemplates no particular marriage, and that the trust, meantime remaining suspended, will assert itself on her mar- riage,"^ no disposition thereof having taken place. This same am- bulatory operation appears to prevail usually in the United States." § 254. Creation in General. Prima facie the legal ownership of property which is in hia wife at the time of marriage, or comes to her during coverture, vests in the husband under his marital right. It is therefore necessary that the intention to establish a separate use be clearly manifested, else courts of equity will not interpose against him. TvTo technical formalities or expressions are required ; but the pur- pose must appear beyond the reach of reasonable controversy, in order to entitle the wife to claim the property as her own in dero- gation of the common law.°* An intention clearly manifested to create a separate estate has always been deemed necessary in our courts, in order to exclude the husband's marital rights. The mere intervention of a trustee is insufficient"* Our courts of equity vsrill sometimes overlook informalities in order to give effect to the wife's separate use. As where a deed of trust to a commissioner 50. Snyder's Appeal, 92 Pa. 504, Buss. & M. 183; Kensington v. Dol- and eases cited in opinion. lond, 2 M. & K. 184; Moore v. Mor- 51. Tnllett v. Armstrong, 1 Beav. 1. ris, 4 Drew. 37 ; Peachey, Mar. Settl. 58. Berey v. Lavretta, 63 Ala. 374; 279. 2 Perry Trusts, §§ 652, 653, and cases 54. Hunt v. Booth, 1 Freem. Ch. cited. 215; Evans v. Knorr, 4 Eawle (Pa.), 53. Haymond v. Jones, 33 Grat. 66; Graham v. Graham, Riley, 142; (Va.) 317; Duke v. Duke, 81 Ky. Taylor v. Stone, 13 S. & M. (Miss.) 308; Bank of Louisyille v. Gray, 84 653; Lenoir v. Binney, 15 Ala. 667. Ky. 565, 2 S. W. 168; Gatzwuler v. In Georgia a husband may be held MacGrew, 46 Mo. 94; Hart v. Tate, liable in equity as a trustee suh modo, 104 Mo. 315, 15 8. W. 976;Coatney v. where he recognized the property as Hopkins, 14 W. Va. 338 ; Bichardson the separate property of his wife, even V. De Giverville, 107 Mo. 422, 17 S. though the language was insuflScient W. 974, 28 Am. St. B. 426 ; Macq. per se. Mounger v. Duke, 53 Ga. 277. Hub. & Wife, 307; Tyler v. Lake, S § 265 HUSBAND AND WIFE. 2Y0 has been ordered by the court, but never executed, and the com- missioner gives possession to the husband in the meantime.'^ Or where a deed has not been recorded in compliance with the statute/" So a trust may be enforced, although the details of the arrangement cannot be ascertained by the most stringent proof.^^ As a wife is only made a party to a suit instituted by her husband on the alleged ground of her having separate estate, in regard to which she is a feme sole, the husband, by making her a party, ad- mits it to be her separate estate."* Provisions for the sole and separate use, support, and maintenance of a wife and children are frequently sustained, though the trust does not vest their respective interests consecutively.^" Prior to the Married Women's Acts a conveyance by the husband to the wife created an equitable separ- ate estate in her.*" § 255. By Parol Gift. In Vermont, it is decided that a third person may create a parol trust for a married woman's exclusive benefit ; except as to landed property, which falls within the statute of frauds. Thus in a case where it appeared that the father of a married woman had intimated to her and her husband, in conversation, that he was about to make her an advance in money, which he wished to have invested for the benefit of herself and her children, and that he had subsequently enclosed in a letter to her husband, a check for $1,000, payable to his daughter, or brearer, expressing in the letter a wish that the money might be invested for the mutual benefit of his daughter and her heirs, leaving the mode to be determined by her and her husband, on consultation between them ; also, that she had at the time of the suit three children; the court considered that there had been a trust created for the exclusive benefit of the donor's daughter and her children ; and the husband was taken to be the trustee, as against his own creditors who had attached cer- tain bank stock which he purchased in his own name with such funds ; the evidence showing that the creditors had received notice that the stock was held in trust.^^ 55. Jackson v. McAliley, Speers Eq. (Tenn.) 33; Anderson v. Brooks, 11 303. Ala. 953. 56. Hamilton v. Bishop, 8 Terg. 60. Neville v. Cheshire, 163 Ala. 390, (Tenn.) 33. 50 So. 1005. 57. Sledge v. Clopton, 6 Ala. 589. 61. Porter v. Bank of Rutland, 19 58. Earl v. Ferris, 19 Beav. 69. Vt. 410. Mr. Maequeen suggests the 59. Good V. Harris, 2 Ired. Eq. (N. opinion that a parol trust would be 0.) 630; Hamilton v. Bishop, 8 Yerg. good in England, though admitting 271 EQUITABLE SEPAKATE ESTATE. § 257 There are other American decisions in "which (independently of gifts or settlements from the husband himself) a separate estate in personal property is held to be created in a married woman by a parol gift, where evidence to establish it is clear and satisfactory.'^ § 256. By Contract. A married woman cannot by contract acquire any property to her separate use; but the benefit of her contract, if any, enures to her husband.®* Where, however, a married woman, with her hus- band's consent, purchases lands which she was the meritorious cause of acquiring, and takes a deed to another, it is held in Ver- mont that a trust results in her favor.** On the other hand, if a testator gives a legacy to trustees for the use of a daughter, and directs that it may be invested in real estate for her use, if she should desire it, and that the trustees should take the title in the name of the daughter only, though married, the trustees must fol- low his directions, and they cannot take a title in any other name, though by taking it in the name of the daughter, the property might be subjected to the husband's debts.°° § 257. By Instrument Vesting Power oi Appointment in Wife. Property limited to such uses as a married woman shall appoint is not separate estate. There is a difference between property sub- ject merely to her power of appointment, and property settled to her sole and separate use. In the former instance she may dis- pose of the estate by executing an instrument according to the strict letter of her authority. In the latter, she is invested with a bene- ficial interest and enjoyment, however restricted may be the do- minion allowed her by the donee. A power of appointment is much the same as any other special power, and on such a prin- ciple, not upon the ground that she is a feme sole as to the property, the courts both of equity and of law recognize her right to execute without joining her husband. And indeed in some cases, under her trust, she may pass the absolute property in a chattel by gift and manual delivery without writing at all, because she has been that he finds no decision of the ques- 63. Lansier v. Ross, 1 Dev. & Eat. tion. Marriage settlements, however, Eq. (N. C.) 39. may be affected by the statute of 64. Pinney v. Fellows, 15 Vt. 525. frauds. Macq. Hus. & Wife, 393. And see PuUiam v. Pulliam, 1 Freem. 62. Betts V. Betts, 18 Ala. 787; Ch. 348. Watson V. Broaddus, 6 Bush (Ky.), 65. Vernon v. Marsh, 2 Green Ch. 328; Spaulding v. Day, 10 Allen (N. J.) 503. (Mass.), 96. § 258 HUSBAND AND WIFE. 272 SO empowered. She cannot, by virtue of a mere power of appoint- ment as to a certain fund, charge the property with her debts or affect it by her general contracts, any more than she can other property which is not hers.®° On the other hand, the wife's dis- position of her separate estate does not arise from the exercise of a power, but it is the exercise of a dominion over that estate, un- known to the common law and created by a court of equity, whose rules provide not only for her dominion over it, but also for the rights of those in favor of whom that dominian shall be exercised."^ A power of appointment given to a married woman, and a trust for her separate use, are then perfectly distinct, even when they affect succeeding interests in the same property. A married woman may, however, be expressly authorized to appoint by will and not by deed, and the exercise of such power in favor of volunteers may render the appointed funds assets for the satisfaction of debts properly chargeable against her separate es- tate.** In general, equity permits a married woman to dispose of property according to the mode, if any, prescribed by the instru- ment under which the separate use is created."® And it is held by the English chancery that if a power be given to a married woman to be exercised in relation to the separate fund, an absolute interest therein being given her in default of the exercise of the power, she may decline to exercise the power, and thereby acquire the right to sell it as a single woman.'" § 258. Gift of Income of Fund as Gift of Capital. A gift of the produce of a fund is to be considered a gift of that produce in perpetuity ; hence, it is a gift of the fund itself, nothing appearing to show a different intention. Therefore, a bequest of a fund to a woman, with the interest thereon, to be vested in trus- tees, — the income arising therefrom to be for her separate use and benefit, — vests the capital for her separate use.'^ Where a tes- tator simply directs the investment of a fund in trustees, for the 66. Vaughan v. Vanterstegen, 2 ("Va.) 393; Knowles v. Knowles, 86 Drew. 378. See Parrington v. Parker, 111. 1 ; Jaques v. Methodist Episcopal L. E. 4 Eq. 116. Church, 17 Johns. (N. T.) 548. And 67. Digby v. Irvine, 6 Ir. Cb. 149. see post. See Peachey, Mar. Settl. 276; Brown 70. Barrymore v. Ellis, 8 Sim. 1; 1 V. Bamford, 1 Ph. 620; Shattock v. Bro. Ch. 533. Shattock, L. R. 3 Eq. 183; Hanchett 71. Adamson v. Armitage, 19 Ves. V. Briscoe, 22 Beav. 496. 416; Macq Hus. & Wife, 311; Trout- 68. Be Harvey, 28 W. E. 73. beck v. Bonghey, L. E. 2 Eq. 534. 69. MeChesney v. Brown, 25 Gratt. 273 EQUITABLE SEPARATE ESTATE. § 259 benefit of a married woman, independent of the control of her hus- band, this is enough to carry the whole fund to her separate use." So it is held that where stock was given to trustee upon trust, to pay the dividends to a married woman for her separate use, and there was no limitation of a life interest, an absolute interest in: the capital passed to her, which she could dispose of as a feme It is fair to suppose that in equity the wife's separate use binds the produce of the fund as well as the fund itself. There are some cases decided in the courts of common law where the con- trary has been maintained, and to this effect, that, although a wife may be entitled to separate property, the dividends arising therefrom vest in her husband.''* This is no reason, however, why the equity doctrine should not be as we have stated ; indeed, if it were otherwise, as an English writer has observed, the ob- ject of separate use would be in many instances frustrated.''' It must only be observed that income or produce of the fund, if once in the husband's hands, may readily be presumed to have been be- stowed upon him by the wife either for himself or the family ex- penses. § 259. Savings from Wife's Income. What the wife saves out of her separate income, too, if its iden- tity be properly preserved, is in equity her separate estate." And property purchased with such savings belongs to her continues sub- ject to the same rules.'" But furniture purchased by the wife with the income of her separate estate, and mixed with the furniture of the husband, becomes presumably the property of the husband, un- less it was understood between them, at the time of the purchase, that the property should be kept by him as her trustee merely ;''" for 72. Simons v. Howard, 1 Keen, 7, bin, 9 Sim. 447, n. Contra, Peachey, per Lord Langdale. Mar. Settl. 263, where cases are cited 73. Elton V. Shephard, 1 Bro. C. C. which do not support the statement 532; Haig v. Swiney, 1 Sim. & Stu. in the text. 487. 76. Barrack v. McCuUoch, 3 Kay & 74. Tugman v. Hopkins, 4 Man. & J. 110; Brooke v. Brooke, 4 Jur. (N. Gr. 3S9; Came v. Brice, 7 M. & W. S.) 472. 183. 77. Merritt v. Lyon, 3 Barb. (N. 75. See Macq. Hus. & Wife, 291, Y.) 110; Hort v. Sorrell, 11 Ala. 386. and n. And see dictum of Sir Lance- See Kee v. Vasser, 2 Ired. Eq. (N. C.) lot Shadwell, in Molony v. Kennedy, 553. 10 Sim. 254 (quoted ib.), which inti- 78. Shirley v. Shirley, 9 Paige (N. mates that this is the equity doctrine; T.), 363. per Lord Hardwieke, Churchill v. Dib- 18 § 260 HUSBAND AND WIFE. 274 it is both natural and proper that the wife should bestow her income so as to follow the common-law rule, thus helping to defray the family expenses and maintain the household establishment. § 260. Necessity of Trustee. In England, where property comes to the wife's separate use, it is treated in equity as trust estate, of which she is cestui que trust. Yet it is not actually necessary that the instrument constituting the separate use should itself make an appointment of trustees. Formerly the rule was otherwise; but at the present day equity makes the husband a trustee where no other holds possession, and thus supports the trust.'* And where a trustee, regularly ap- pointed, in breach of his duty, and without the privity of the wife, pays the trust-money over to the husbandj equity follows the money into the husband's hands, and makes him likewise accountable as his wife's trustee.*" It impresses a trust upon the wife's separate estate wherever such estate may be found. But while the appoint- ment of third persons as trustees is not essential to give the wife a separate estate, or a separate interest in any particular estate, it is certainly desirable on many accounts, and there is in it this marked advantage, that the property is made thereby more secure, because such influence of the husband over the wife is prevented as might induce her to abandon the property to him.*^ Doubtless the American Married Women's Acts have given a fresh impulse to the equitable protection of married women's prop- erty, which, as we have stated, had been quite sparingly exercised in the United States prior to the first legislative enactments on this subject. Where the separate use has been recognized and enforced at all, the strict American rule was always borrowed from that of England. And the cases show an increasing liberality to the wife in our courts of equity. Thus it has been frequently said that the wife's separate estate requires no trustee to sustain it.*^ For 79. Evans v. Bethune, 99 Ga. 582, 377; s. c. on appeal, 4 M. & Cr. 408; 27 S. E. 277; Brandau v. MeCurley, Humphrey v. Richards, 35 L. J. Bq. 124 Md. 243, 92 A. 540, L. E. A. 444; s. c. 2 Jur. 433; Peaohey, Mar. 1915C, 767; Bennett v. Davis, 2 P. Settl. 260; Macq. Hus. & "Wife, 291. Wms. 316; Davison v. Atkinson, 5 T. Equity can sanction, on behalf of a E. 435; Messenger v. Clarke, 5 Exch. married woman, the compromise of a 393; Peaehey, Mar. Settl. 260; Eoxv. suit to make a trustee liable for Hawks, L. E. 13 Ch. D. 832. breach of trust in the fund. Wall v. 80. Eioh V. Cockell, 9 Ves. 375. See Eogers, L. E. 9 Eq. 58. also Izod V. Lamb, 1 Cr. & J. 35. 82. McKennan v. Phillips, 6 Whart. 81. Newlands v. Paynter, 10 Sim. 571; Thompson v. MeKusiek, 3 275 EQUITABLE SEPARATE ESTATE. § 261 when no other trustee is interposed the courts of chancery are prepared to treat the husband as such by virtue of his possession and control of the fund.*' And one may, by his acts, make him- self a trustee sub modo to support the wife's separate use.** Even a purchaser, still more a volunteer, taking possession of the trust property, with a notice of the trust, will be made a trustee in chancery.*" No informality as to trustee need, of course, injuriously affect the wife's interest.*" Upon a bill by husband and wife to recover her separate prop- erty, the court may decline to make the husband trustee, and order payment to be made to some third person as trustee for her.*^ And where real estate is conveyed in trust for a married woman, and to such person as she shall appoint, it is not necessary that the husband should join in the appointment.** § 261. Construction of Instrument Creating Estate. On the whole, it is apparent that there is much contrariety in the decisions, so far as relates to technical expression. Courts of equity, as such, will not deprive the husband of his legal rights Humph. (Tenn.) 631; Fellows v. Tann, 9 Ala. 999; Trenton Banking Co. V. "Woodruff, 1 Green Ch. (N. J.) 117; Dezendorf v. Humphreys, 95 Va. 473, 38 S. E. 880. 83. Boykin v. Ciples, 2 Hill Ch. (N". T.) 200; Hamilton v. Bishop, 8 Terg. (Tenn.) 33; Wallingsford v. Allen, 10 Pet. (U. S.) 583; Porter v. Bank of Rutland, 19 Vt. 410; Pepper v. Lee, 53 Ala. 33; Eichardson v. Stod- der, 100 Mass. 528; Wilkinson v. Cheatham, 45 Ala. 337. And see Wood V. Wood, 83 N. Y. 575; Be O'Brien, 11 R. I. 419; Harkins, v. Coalter, 2 Port. 463 ; Franklin v. Cre- yon, 1 Harp. Oh. 343; Freeman v. Freeman, 9 Mo. 763; Holthaus v. Hornbostle, 60 Mo. 439. A court of general equity jurisdiction has power to appoint a husband to be trustee in a trust for the wife's separate benefit, and such appointment is valid. Ely v. Burgess, 11 E. I. 115. But in ordinary cases there are reasons against selecting the husband. Tb. 84. Sledge v. Clopton, 6 Ala. 589. 85. Jackson v. McAliley, Spears Eq. 303; Fry v. Fry, 7 Paige Ch. (N. T.), 461. 86. Jackson v. McAliley, Speers Eq. 303. And as to estopping a husband by his admissions of a separate use, though the language was insufScient, see Mounger v. Duke, 53 Ga. 277 ; Fry V. Fry, 7 Paige Ch. (N. Y.) 461; Sledge V. Clopton, 6 Ala. 589. 87. Boykin v. Ciples, 3 Hill Ch. (N. Y.) 300. 88. Thompson v. Murray, 2 Hill Ch. (N. Y.) 204; 4 Kent Com. 318. See Wallace v. Holmes, 9 Blatchf. 67; supra, Humphrey v. Buisson, 19 Minn. 221. A guardian cannot, in South Carolina, sell and< assign his ward's bond and mortgage of real estate without judicial sanction. Mc- Duffie V. Mclntyre, 11 S. C. 551. Aliter, probably, in many States; though the right to assign real estate security is more doubtful than that of assigning a simple note or bond upon personal security or without se- curity. See preceding section; Mack , V. Brammer, 28 Ohio St. 5&8. Gen- eral guardians do not represent their § 261 HUSBAUD AND WIFE. 276 upon any doubtful construction of language,^* nor unless tlie words of themselves leave no doubt of tbe intention to exclude him.** But the qu^tion relates rather to intention, to substance, and not literal expression ; and any language is now deemed usually suffi- cient, whatever the technical words, which clearly expresses the intent to create a separate estate for the wife, independent of her husband's control.'^ The form of expression Avill go far towards determining whether property is or is not limited to the wife's separate use. Vice-Chan- cellor Wigram, in a case before him not many years ago, was forced to admit that while ruling out certain property from the wife's separate use, on account of the testator's insufficient language, he had a strong opinion that he decided against the real intention of the testator.®* The limitation to separate use may either be in express words,*' or may appear by necessary implication.** It must, however, be gathered from a construction of the whole instru- ment if there is one.*° Some courts hold that the intention may be shown by evidence aliunde the writing."" The intention of excluding the husband's marital rights may be inferred from the nature of the provisions attached to the gift ; as where, for example, the direction is that the propenty shall be at the wife's disposal, or there is some other clear indication that such was the donor's intention.*^ In the courts of this country, moreover, the sitatute policy is found to supplement equity. As a general rule an equitable trust by instrument requires the construction of that instrument to operate. But this does not necessarily conclude the wife. For, while an equitable separate estate is created, where the intent to exclude the marital rights of the husband clearly and unequivocally infant ■wards in foreclosure proceed- 92. Blaeklow v. Laws, 2 Hare, 49. ingB. Sheahan v. Wayne, 42 Mioh. 69. 93. Coquard v. Pearee, 68 Ark. 93, 89. Buck V. Wroten, 24 Gratt. (Va.) 56 8. W. 641; Campbell v. Galbreath, 250; Bowen v. Lebree, 2 Bush (Ky.), 12 Bush (Ky.), 459. 112. 94. Hart v. Leete, 104 Mo. 315, 15 90. Peaehey, Mar. Settl. 281 ; Tyler S. W. 976 ; Coatney v. Hopkins, 14 W. V. Lake, 2 Buss. & M. 188 ; Massey v. Va. 338. Parker, 2 M. & K. 181; Maeq. Hus. & 95. Miller v. Miller's Adm'r, 92 Va. Wife, 309. 510, 23 S. E. 891. 91. Travis v. Sitz (Tenn.), 185 8. 96. Wagner v. Mutual Life Ins. Co. W. 1075, L. E. 1917A 671 ; Holiday V. of New York, 88 Conn. 536, 91 A. Hively, 19« Pa. St. 335, 47 A. 988. 1012; Bank of Louisville v. Gray, 84 8ee Prout v. Eoby, 15 Wall. (U. 8.) Ky. 565, 8 Ky. Law, 664, 2 8. W. 168. 471 ; Gaines v. Poor, 3 Met. (Ky.) 97. Prichard v. Ames, Turn. & Buss. 503. 223 ; Peaehey, Mar. 8ettl. 279. 277 EQUITABLE SEPARATE ESTATE. § 262 appears from the force and certainty of the terms employed, the local statute may intervene where the intent is doubtful, equivocal, or open to speculation, and fix the character of the estate as the wife's separate statutory and legal estate."* A legacy added by a codicil to the legacy given by a will is subject to the incidents of the original legacy ; and the separate use may be extended by con- struction from the will to the codicil."® Where an instrument intended to create a statutory separate estate, but grants powers or imposes restrictions not consonant with the statute, the courts will construe the instrument as creating an equitable separate estate where its terms are consonant with equity.^ § 262. What Words are Sufficient to Create Estate ; In England. As to the words which in themselves indicate the intention of ereating a separate use, there have been numerous decisions in England. Among them the following expressions are held suffi- cient : " For her full and sole use and benefit," ^ " her own sole Ti&e and benefit," * " for her sole use," * " for her sole and separate use and benefit," ° " for her sole and separate use," ' " for her sole use and benefit," ' " for her own sole use, benefit, and dis- position," * " for her sole and absolute use," ° " for her own use, and at her own disposal," " " to be at her disposal, and to do therewith as she shall think fit," ^^ " solely and entirely for her own use and benefit," ^^ " for her own use, independent of any husband," ^^ " not subjected to the control of her husband," ^* " for her own use and benefit, independent of any other person," " " foi her livelihood," ^° " as her separate estate," " " to receive the rents while she lives, whether married or single." ^* Lord Thurlow 98. Short V. Battle, 52 Ala. 456. 11. Kirk v. Paulin, 9 Vin. Abr. 96, 99. Day v. Croft, 4 Beav. 561. pi. 43. 1. Jones V. Jones' Ex 'r, 96 Va. 749, 12. Inglefleld v. Coghlan, 2 Coll. 32 S. E. 463; Ellison v. Straw, 116 247. "Wis. 207, 92 N. W. 1094. 13. Wagstaff v. Smith, 9 Ves. 520. 2. Arthur v. Arthur, 11 Ir. Eq. 511. 14. Bain v. Leseher, 11 Sim. 397. 3. Ex parte Killick, 3 Mon. D. & De 15. Margetts v. Barringer, 7 Sim. G. 480. 482. 4. Lindsell v. Thaeker, 13 Sim. 178. 16. Darley v. Barley, 3 Atk. 399. 5. Archer v. Rorke, 7 Ir. Eq. 478. And see Peaehey, Mar. Settl. 279, 280 ; 6. Parker v. Brooke, 9 Ves. 583; Macq. Hus. & Wife, 308, 309. Adamson v. Armitage, 19 Ves. 415. 17. Pox v. Hawks, L. B. 13 Ch. D. 7. V. Lyne, Younge, 562. 822. 8. Ex parte Bay, 1 Madd. 199. 18. Goulder v. Camm, De G. F. & 9. Davis V. Prout, 7 Beav. 288. J. 146. 10. Prichard v. Ames, Turn & Russ. 22i2. § 263 HUSBAND AND WIFE. 278 once decided that a directioa " that the interest and profits be paid to her, and the principal to her or to her order by note, or writing under her hand," created a trust for the wife's separate use.^* So in the judgment of Sir William Fortescue, Master of the Rolls,. did the words " that she should enjoy and receive the issues and profits of the estate.^" And Lord Loughborough gave a like effect to a direction that certain property should be delivered up to a married woman " whenever she should demand or require the same." ^^ A similar construction has also been applied to the words, " to be laid out in what she (the wife) shall think fit." ^^ And a legacy to a married woman, " her receipt to be a sufficient discharge to the executors," has been held sufficient.^* It has been held that a gift to the wife's separate use was good, althoiigh the support and education of children was annexed as a charge upon it.^* The expression " her intended husband " may apply to a second husband, where there are words limiting income to the wife's separate use during her life, for this latter expression controls the former.^' § 263. In the United States. In the United States it is held that the language employed, if language be necessarily relied on, must be suitable. Thus in North Carolina, the words, " for her use," have been held sufficient to exclude the husband^'t dominion."* So, too, the words, " for the entire use, benefit, profit, and advantage." " In Kentucky, the words, " for her own proper use and benefit," are held sufficient."* Such, too, seems to have been the rule in Mississippi."® The words, " to the use and benefit," are held sufficient in Tennessee.^** So in Alabama, words importing enjoyment, " without let, 19. Hulme v. Tenant, 1 Bro. C. C. Exch. 543. And see n. to Maoq. Hub. 16. & Wife, 310. 20. Tyrrell v. Hope, 2 Atk. 561. 25. Hawkes v. Hubback, L. R. 11 "For to what end should she receive Eq. 5. it," says this judge, "if it is the 26. Steel v. Steel, 1 Ired. Eq. (N. C.) property of the husband the next 452; Good v. Harris, 2 Ired. Eq. (N. moment?" 0.) 630. 21. Dixon V. Olmius, 2 Cox, 414. 27. Heathman v. Hall, 3 Ired. Eq. 22. Ateherley v. Vernon, 10 Mod. (N. C.) 414. 518. See Blaeklow v. Laws, 2 Hare, 28. Griffith v. Griffith, 5 B. Mon. 52. (Ky.) 113. 23. Warwick \. Hawkins, 13 E. L. 29. Warren v. Halsey, 1 S. & M. & Eq. 174. Ch. (Miss.) 647. 24. Cape v. Cape, 2 You. & Coll. 30. Hamilton v. Bishop, 8 Yerg. (Tenn.) 33. 279 EQUITABLE SEPARATE ESTATE. § 263 hindrance, or molestation whatever." '^ And where one clause of a will applies the words, " in trust for the separate use," to certain property, and another applies to certain property the words " in trust " only, the separate use may by construction emhrace the whole.'^ The word " exclusively " in the wife's favor is held to exclude the husband.** So, too, " to be hers and hers only." ** A trust, to pay income to a wife *' " for and during the joint lives of her and her husband, taking her receipt therefor," is held to give her a sole and separate estate in the income,*" and a trust to the " exclusive use, benefit, and behoof," is held sufficient to create a separate use.*' So, too, " for her own use and benefit, inde- pendent of any other person." ** So, too, " absolutely," in a suitable connection.*' So, too, " to be for her own and her family's use during her natural life." *" Or, " for the use and benefit of the wife and her heirs." *^ Or, " not to be sold, bartered, or traded by the husband." *^ The words, to the wife's " sole and separate use," are most commonly applied.** Or, " solely for her own use." ** Or, " for the sole use and benefit of." *° And " to have for her sole and separate use during life," *° or by a will providing that a daughter and her husband should reside on testator's estate until other real 31. Newman v. James, 12 Ala. 39. 40. Heck v. CUppenger, 5 Pa. 385; And see Clarke v. Windham, ib. 798. Hamilton v. Bishop, 8 Terg. (Tenn.) 32. Davis v. Cain, 1 Ired. Eq. (N. 33. C.) 304. See further, as to words 41. Good v. Harris, 2 Ired. Eq. which constitute a separate estate, (N. C.) 630. Wilson V. Bailer, 3 Strobh. Eq. (8. C.) 42. Woodrum v. Kirkpatrick, 2 »58; Clark v. Maguire, 16 Mo. 302; Swan, 218; Clarke v. Windham, 13 Goodrum v. Goodrum, 8 Ired. Eq. (N. Ala. 79«. C.) 313; Denson v. Patton, 19 Ga. 43. See § 319 et seq.; Kobinson 577; Bradford v. Greenway, 17 Ala. v. O'Neal, 56 Ala. 541; Swain v. 797. Duane, 48 Cal. 338; Short v. Battle, 33. Gould V. Hill, 18 Ala. 84. 52 Ala. 456. 34. Ellis V. Woods, 9 Eieh. Eq. 44. Ib.; Snyder v. Snyder, 10 Pa. (S. C.) 1?; Ozley v. Ikelheimer, 26 423 ; Jarvis v. Prentice, 19 Conn. 273 ; Ala. 332. Goodrum v. Goodrum, 8 Ired. Eq. (N. 35. As to income, increase, and C.) 313 ; Griffith v. GriflSth, 5 B. Mon. profits, see supra, § 258. (Ky.) 113; Stuart v. Kissam, 3 Barb. 36. Charles v. Coker, 2 S. C. (N. S.) (N. T.) 494. 122. 45. Blakeslee v. Mobile Life Ins. 37. Williams v. Avery, 38 Ala. 115. Co., 57 Ala. 305; Miller v. Vose, 62 38. Williams v. MauU, 20 Ala. 721 ; Ala. 122. Ashcraft v. Little, 4 Ired. Eq. (N. C.) 46. Dezendorf v. Humphreys, 95 Va. 236. 473, 28 S. E. 880. 89. Brown v. Johnson, 17 Ala. 233; Short v. Battle, 52 Ala. 456. § 264r HTTSBAND AND WIFE. 280 estate should be purchased for them as provided by the will.*' A deed by a husband to a trustee for a wife and her children, with power to her to sell or exchange the land with the trustee's consent, creates an equitable and not a statutory separate estate.*' § 264. What Words are Insufficient to Create Estate; In Ekig- land. A mere trust to pay the income of a fund to a certain married woman, or to her and her assigns, is in England held not sufficient to prevent the marital rights from attaching.*® Nor is a devise to a certain widow's sole use and benefit without reference to a future husband.°° Even a gift to a wife " for her use " has been held not a sufficiently unequivocal declaration of an intention to create a trust for the separate use of the wife.°^ Some words have greater efficacy than others. Thus it has been said that the word " enjoy " is very strong to imply a separate use."^ And much controversy has arisen in the English chancery courts over the use of the word " own " as synonymous with " sole," the result of which is to establish that there is a substantial distinction between a gift to a wife " for her sole use " and a gift " for her own use," or " for her own use and benefit." °* And it having been decided that the word " own " had no exclusive meaning, it was next deter- mined that a trust to pay the proceeds of real estate into the proper hands of a married woman for her own use and benefit was not a gift to the wife's separate use, the word " proper " being the Latin form of the word " own," and therefore payment into the wife's proper hands signifying the same thing as into her own hands. °* Lord Brougham thus in effect overruled a decision of Lord Alvanley, who had held that the use of the word " proper " would create a separate use.°° This later construction, coming from a jurisdiction so conclusive, has since prevailed, though not without some expressions of dissatisfaction in the lower courts."' And 47. Eussell v. AudrewB, 120 Ala. 52. Sir William Forteseue, in Tyr- 223, 24 So. 573. rell v. Hope, 2 Atk. 558. 48. Jones v. Jones' Exr., 96 Va. 53. See Lord Brougham's judgment 74?, 32 S. E. 463; Eutledge v. But- in Tyler v. Lake, 2 Buss. & M. 187; ledge (Mo.), 119 S. W. 489. Johnes v. Loekhart, 3 Bro. 0. C. 383, 49. Lumb v. Milnes, 5 Ves. 517; n.; Peaehey, Mar. Settl. 282. Brown v. Clark, 3 Ves. 166; Spirett 54. Tyler v. Lake, 2 Buss. & M. V. "Willows, 11 Jur. (N. S.) 70. 187. 50. Gilbert v. Lewis, 1 Be G. J. 55. Hartley v. Hurle, 5 Ves. 545. & M. 38. 56. See Viee-Chaneellor Wigram, in 51. Jacobs V. Amyatt, 1 Madd. 376, Blaeklow v. Laws, 2 Hare, 49 ; Macq. ».; Wills V. Sayers, 4 Madd. 411; Bob- TTus * Wi-fA anof. -Poo^i.o-o- »)r»- erts V. Spicer, 5 Madd. 491. 281 EQUITABLE SEPABATE ESTATE. § 265 again, language of the donor, expressive of his intent to limit property to the wife's separate use, may be controlled by other words or provisions so as to negative such a supposition. This principle was applied to the wife's disadvantage in a case where others were made the objects of the bounty with her.^^ Whether the word " sole " is of itself sufficient to create a separate use is doubtful. Different opinions have been expressed on this point. But in a case before Vioe-Chancellor Kindersley the word " sole " was deemed insufficient, in a devise of property to a female, her heirs, executors, administrators, and assigns, " for her and their own sole and absolute use and benefit," to create a separate estate; since the word " sole," as here used, had reference not only to the female herself, but to her heirs, executors, admin- istrators, and assigns, who certainly could not be considered beneficiaries under any such trust." § 265. In the United States. There is authority in the United States against permitting such expressions as these to create the separate use, and the following have been held insufficient : " For the use and benefit of," "' " in her own right,""" " for the joint use of husband and wife," '^ " to her and the heirs of her body and to them alone," and similar expressions,*^ or where, instead of restraint of husband's right of disposition, is stated a mere exemption from liability for his debts,*^ or where a will provided that the executor " can " sell certain land and divide it among the testator's married daughters, his sons-in-law not to " interfere " in any manner with the prop- erty,'* or, to some one's wife, without further exclusive descrip- 67. Wardle v. Claxton, 9 Sim. 524. 60. Leete v. State Bank of St. Louis, And see Gilchrist v. Cator, 1 De G. 141 Mo. 574, 42 S. W. 1074. & 8. 188. 61. Geyer v. Branch Bank, 21 Ala. 58. Lewis v. Mathews, L. R. 2 Eq. 414. Of. Charles v. Coker, 2 S. C. 177. And see Trontbeck v. Boughey, (N. S.) 122. See post as to convey- L. E. 2 Eq. 534. See also, as to prop- ances to husband and wife, § 564 et erty to husband and another in trust, seq. Ex parte Beilby, 1 Glyn & Jam. 167; 62. Clevestine's Appeal, 15 Pa. 499; n. to Peachey, Mar. Settl. 283. Bryan v. Duncan, 11 Ga. 67 ; Foster 59. Clevestine's Appeal, 15 Pa. 499; v. Kerr, 4 Eioh. Eq. (8. C.) 390. Fears v. Brooks, 12 Ga. 198; Tenant 63. Harris v. Harbeson, 9 Bush V. Stoney, 1 Rich. Eq. (S. C.) 222; (Ky.) 397; Gillespie v. Burlinson, 28 Prout V. Eoby, 15 Wall. (TJ. S.) 471; Ala. 551. But see Young v. Young, Merrill v. Bullock, 105 Mass. 486; 3 Jones Eq. (N. C.) 266. Guishaber v. Hairmam, 3 Bush (Ky.), 64. Schwarz v. Griffith's Exr., 7 Ky. 320. Law Rep. (abstract) 532. § 266 HUSBAND AND WIFE. 282 tion.'" In South Carolina, the words, for " the use of his wife," are held insufficient.'^ A gift or bequest to " a married woman and her children, bom and thereafter to be born," does not invest her with an estate to her sole and separate use, but makes her a tenant in common (joint-tenancy having been abolished) with her children. °^ And it would appear, in general, that where property is given for the use and support of two or more together, one of them being a married woman, it cannot be considered as vesting a separate estate in the married woman; for exclusiveness of enjoyment is an important element in such estates.*^ This doc- trine is not inconsistent with the well-established right of a donor to make a trust first to the wife's separate use, then over to some one else, provided the instrument uses apt language for that pur- pose.*' In Illinois it is held that the disabilities of coverture are not so far removed by the separate property act as to take married women out of the saving clause of the statute of limiitations.'"' § 266. Necessity of Preserving Identity of Estate. As to mingled funds generally, the rule applies that equity will not interfere where a fund set apart for the wife's sole benefit has become mixed with other funds beyond the possibility of identifi- cation.^^ But, on the other hand, the proceeds of a transfer of the wife's separate property, which it is understood shall be the wife's, may be followed by her in equity, provided she can trace the identity, and has acted consistently with her claim of title, even though the husband takes the title in himself.'^ In Missouri it is held that a separate equitable estate in the wife is created where the title to property bought with her funds is taken in the name of the husband-'^ 65. Moore v. Jones, 13 Ala. 296; But cf. Metropolitan Bank v. Taylor, Fitch V. Ayer, 2 Conn. 143 ; Shirley v. 53 Mo. 544. Shirley, 9 Paige (N. T.), 364. 69. See Warren v. Haley, 1 S & M. 66. Tennant v. Stoney, 1 Eioh. Eq. Ch. (Miss.) 647. (S. C.) 222; McDonald v. Crockett, 2 70. Morrison v. Norman, 47 HI. 477. McC. Ch. (S. C.) 130. 71. Buck v. Ashbrook, 59 Mo. 200. 67. Dunn v. Bank of Mobile, 2 Ala. 72. Dula v. Young, 70 N. C. 450; 152. Haden v. Ivey, 51 Ala. 381. 68. Harkins v. Coalter, 2 Port. 463 ; 73. Donovan v. Griffith, 215 Mo. 149, Clancy, Hus. & Wife, 269; Inge v. 114 8. W. 621. Thus, where a hua- Forrester, 6 Ala. 418. A provision baad so holds the legal title, the title that three daughters shall " enjoy held by him merges in her equitable their respective portions as they see title at her death and vests the title fit," does not exclude their husbands, in her heirs. Stark v. Kirehgraber, Wood V. Polk, 12 Heisk. (Tenn.) 220. 186 Mo. 633. 85 S. W. 868. 105 Am. 283 EQUITABLE SEPARATE ESTATE. § 267 A distinction may sometimes be requisite between tbe case where a wife asserts her equitable title against her husband, and that where her title is claimed against bona fide purchasers from the husband, having neither actual nor constructive notice of her title.'^ Where the wife's separate estate is sold for a debt of the ancestor from whom it descended, it has been held in New York that the surplus belongs to the husband.'"* And where a wife joins Tvith her husband in the conveyance of her land, without any understanding or agreement that the proceeds are to be applied to her separate use, such proceeds vest absolutely in him dis- charged of all claims on her part.''* For the presumption in such cases is that she voluntarily abandons her separate use in his favor ; though the question after all is one of evidence." § 267. Separate Estate as Trust Fund for Payment of Wife's Debts. The separate estate of a married woman is in suitable instances to be treated as a trust fund for the payment of her separate debts. How far this doctrine should be carried, the authorities are not agreed.^* But it rests apparently upon the assumption that, by virtue of her right to dispose of such property (of which we shall speak more at length in this chapter), she has contracted expressly or by implication with reference to her separate estate, the creditor reposing his faith accordingly. And hence it is held that where a stranger advanced moneys for the support of a wife living separate from her husband and in destitute circumstances, her separate estate, after her death, vnll be bound thereby and also for her needful burial and funeral expenses.'" 'Rot, in the absence of an intention on the wife's part to make such estate liable, can it be subjected to her general debts contracted during coverture."* But in Mississippi a disposition has been manifested to overturn 74. See post, § 372. questions this rule, which case in turn 75. Wood V. Genet, 8 Paige (N. is disapproved hj Hodgson v. Wil- T.), 137. liamson, 42 L. T. 676. 76. Chester v. Greer, 5 Humph. 79. Hodgson v. Williamson, 42 L. T. (Tenn.) 26; Temple v. Williams, 4 676. Ired. Eq. (N. C.) 39. 80. Dickson v. Miller, 11 8. & M. 77. Temple V. Williams, 4 Ired. Eq. (Miss.) 594; Knox v. Picket, 4 (N. C.) 39. Desaus. (S. C.) 92; Gee v. Gee, 2 Dev. 78. 2 Story, Eq. Jur., § ISg'S, n.; & Bat. (N. C.) 103; Haygood v. Har- Norton v. Turvill, 2 P. Wma. 144. ris, 10 Ala. 291; Curtis v. Engel, 2 Vanghan v. Walker, 8 Ir. Ch. 458, Sandf. Ch. (N. T.) 287. § 269 HUSBAND AND WIFE. 284 this doctrine, and to establish a new and fairer rule in equity; and it is held that the wife's separate property, owned before marriage, may be thus subjected to the payment of necessaries furnished her while sole and a minor,*^ and a similar rule prevails in some other States.'^ § 268. Duration of Estate. In England the quality of separate estate ceases on the death of the wife; and if her husband survives her, he becomes entitled to the property as though it had never been settled to her separate use. For the separate use was created only for the marriage state, and was not designed to extend beyond the dissolution of marriage, or when the necessity of the trust should be no longer felt. Thus choses in possession settled to the wife's separate use vest in the husband absolutely upon his survivorship.*' In the United States, as in England, the separate estate in equity continues only during the marriage state, with probably similar qualifications.** The estate of the trustee, as such, termi- nates on the wife's death.*° Where a conveyance is made in trust for the separate use of a married woman, or for such person as she should direct, and she makes no appointment, it is held in Pennsylvania that the trustee after her death is entitled to recover the property for her representatives.*" § 269. Husband's Rights on Wife's Decease. The wife's separate choses in action may be recovered by the husband on her death in his right as her administrator.*^ So, doubtless, her separate chattels real go to the husband as survivor. In short, the wife's separate property, upon the wife's death, is freed from its peculiar incidents, and becomes libe any other estaite 81. Diekson v. Miller, 11 S. & M. coming indebted on behalf of his wife, (Miss.) 594. "In marriage," ob- with no possibility of his receiving an serves Mr. Justice Thacher, " although amount even equal to her debts." It. a husband runs the hazard of becom- 82. Cater v. Eveleigh, 4 Desans. ing liable for his wife in an amount (8. C.) 19; Young v. Smith, 9 Bush greater than the value of the estate (Ky.) 421. Upon this subject, from hB receives by her, he also has the the statutory point of view, see post. chance of receiving by her an amount 83. Molony v. Kennedy, 10 Sim. far exceeding her debts. But where 354. the whole estate of a wife, notwith- 84. Supra, § 353. standing coverture, continues separate 85. Bercy v. Lavretta, 63 Ala. 374. to her, there is no such recompense 86. Dinsmore v. Biggert, 9 Pa. 133. to the husband for his obligation for 87. Proudley v. Fielder, 3 Myl. & K. Ms wife's debts, but on the contrary, 57; Drury v. Scott, 4 Ton. & Coll. Ch. there may be a certainty of his be- 864; Stead v. Clay, 1 Sim. 294. 285 EQUITABLE SEPAEATE ESTATE. § 270 of hers which may remain at her decease.'* And it seems clear that the husband may be tenant by the curtesy, as usual, if not expressly excluded from all marital interest.*" The husband sur- viving his wife has the same rights in her separate estate, as in her other property, even though another be appointed administrator.®" And yet if the husband, on survivorship, is entitled to his wife's separate personal estate by virtue of his marital rights, he must, in order to obtain it from others, and have a firm title against creditors, take out letters of administration, as American cases hold, — at least where ante-nuptial debts of the wife have not been recovered during marriage.*"^ § 270. What Will Bar Husband's Rights. The wife may defeat her husband's claim after her death by exercising her power of disposition during her lifetime, — a power which is recognized in a married woman so far as her separate property is concerned.®^ So, too, by the terms of the trust, the husband's rights on her decease may be prevented from attaching. Thus, where a wife entitled to separate property for life, under a settlement which directed that all the trust property and all the income thereof " remaining unapplied " at her death should go in a certain manner, left her husband some years before her death; and the trustees received the income regularly, and paid it into a bank in their own names, with her privity, making remittances to her as she required money ; and upon the wife's death the sum of £888 was found among her effects, and a balance of £2,049 accumulated income stood to the credit of the trustees in the bank ; it was held by the Vice-Chancellor of England that the former went to the surviving husband by virtue of his marital right, while the latter was bound by the trusts of the deed as the result of income " remaining unapplied " at her death."* 88. Maeq. Hus. & Wife, 285; is excluded from curtesy. Moore v. Peaehey, Mar. Settl. 278 ; Sloper v. Webster, L. E. 3 Bq. 267. Cottrell, 6 El. & Bl. 501; Bird v. 90. Spann v. Jennings, 1 Hill Ch. Pegrum, 13 C. B. 650; s. c, 17 Jur. (N. T.) 325; Good v. Harris, 2 Ired. 579. Eq. (N. C.) 630; McKay v. Allen, 6 89. Lushington v. Sewell, 1 Sim. Yerg. (Tenn.) 44. And see Cooney v. 548; Roberts v. Dixwell, 1 Atk. 606, Woodbum, 33 Md. 320, where wife per Lord Hardwicke; Macq. Hus. & left no issue surviving. Wife, 287; Appleton v. Eowley, L. R. 91. McKay v. Allen, 6 Yerg. (Tenn.) 8 Eq. 139 ; Cooper v. Maedonald, L. R. 44. 7 Ch. D. 288. Otherwise, where by the 92. Macq. Hus. & Wife, 285. This terms of the separate use the husband will presently be considered further. 93. Johnstone v. Lumb, 15 Sim. 308. § 271 HUSBAND AND WIFE. 286 § 271. Effect of Estate on Husband's Marital Obligations. It would appear to be the English doctrine that the marital obligations of the husband are not essentially altered by her right to separate property. Thus, it is held that the wife is not bound to maintain her husband out of her separate fortune, nor to bring any part of it into contribution for family purposes.** And there seems to be no legal authority to support the notion that the hus- band's liabilities on her general debts are thereby altered during their joint lives.*'* The common-law liabilities of the husband, to be sure, rest in great measure upon his right to his wife's property; yet we may admit that it would be difficult to adjust any new rule except upon partnership principles. If one marries a rich wife, therefore, who chooses to hoard her savings by herself, bequeath all to others, and compel him, a poor man, to pay for everything she or the children need, all their lives, he assuming her antenuptial debts besides, it is possible that even equity will deny him relief. We here suppose that neither legislation nor the wife's own disposition of her separate property affects the question. Moreover, the wife is not bound to maintain, educate, or provide for her children out of her separate property; and even though she elope from her husband, equity will not lay hold of her estate for that purpose. This is a settled point in England, unless the legislature shall change the law hereafter ; for the House of Lords so decided in Hodgden v. Hodgden, on appeal from the lower court of chancery, and under the advice of Lord-Chancellor Cottenham.'* And yet, whenever a settlement of the wife's equity is decreed, where the husband or his legal representative seeks to recover for himself her choses in action, the children of the marriage are included within its benefits; though, to be sure, the wife may waive the claim altogether without reference to them.*^ The English doctrine that the wife's separate estate is not neces- sarily liable for her own general or antenuptial debts is also admitted in the United States. Thus it is held in New York that the only ground on which the vsdfe's separate property can be reached for her antenuptial debts is that of appointment ; that is, some act of hers after marriage which indicates an intention to charge the property.*' 94. Lamb v. Milnes, 5 Ves. 520. 97. See supra, as to the wife 's equity 95. See Macq. Hus. & Wife, 388. to a settlement, § 175. In re Baker's Trusts, L. E. 13 Eq. 98. Vanderheyden v. Mallory, 1 168. Comst. 452. 96. 4 CI. & Fin. 323, reversing the decree of the court below. 287 EQUITABLE SEPAEATE ESTATE. § 273 In general the husband's obligation to maintain his wife and family remains unaffected by the fact that the wife holds separate property. This rule is fully asserted in New York. For it is declared that, though by a marriage settlement the wife's whole property is secured to her separate use, her husband is neverthe- less bound to maintain her, and cannot make the expenses a charge on her separate estate. 'Not can the admissions of the wife, dur- ing coverture, that the expenses were to be borne by her separate estate, be set up by the husband to impair her right, under the settlement.®' " The utmost I can do in this ease," observed Chan- cellor Kent, " is to allow the husband to be credited with any necessary reparations bestowed by him on any part of her estate, and with any particular specific appropriation of her property (not being for the ordinary maintenance of her or his family) which may have been made by her special assent and direction in the given case, and apparently for her benefit." ^ § 272. Rights of Bona Fide Purchasers from Husband. It is possible that a provision for the wife's separate use may fail, as against third parties, bona fide purchasers, wherever the husband can dispose of the property without their having notice of the trust.^ § 273. Restraint on Anticipation or Alienation. The clause of restraint upon anticipation is an important ele- ment in the doctrine of the vdfe's separate use, as administered in England. This clause was sanctioned by Lord Thurlow,* and is frequently to be met with in modem conveyances; and is pro- nounced by Mr. Macqueen, and by eminent English jurists, a salutary clause which takes from the wife the power of bringing ruin upon herself; though it is manifestly in form a fetter upon the trust estate, while the wisdom of its establishment in any case depends upon the folly of the beneficiary.* With a perfect liberty of disposal, the danger arose that the wife might be persuaded to part with, or charge her separate property, even against her better 99. Meth. Ep. Church v. Jaques, 1 2. Parker v. Brooke, 9 Ves. 583; Johns. Ch. (N. T.) 450. Macq. Hus. & Wife, 291. 1. n. It may be said that the above 3. Miss Watson 's Case. See Pybus case arose out of an antenuptial con- v. Smith, 3 Bro. 0. C. 340, n. This tract between husband and wife, and doctrine was afterwards affirmed in that the court merely restrained the Jackson v. Hobhouse, 3 Mer. 487, by husband from setting aside his own Lord Eldon. bargain. 4- See Macq. Hus. & Wife, 312. § 273 HUSBAND AND WIFE. 288 judgment, througli the secret and subtle influences which her husband might bring to bear upon her. But by the clause against anticipation, the wife's hands are tied up ; she has not the power of alienating or encumbering the property; and the donor can place his gift beyond the possibility of matrimonial contention. The restraint upon anticipation not only applies to personal prop- erty, but extends even to landed property, notwithstanding the common-law methods by which the wife may ordinarily alienate and encumber such estate ; so that a person may now devise lands to a married woman in fee-simple in such a manner as to disable her during coverture from making any sale, mortgage, charge, or encumbrance whatever to take effect against it.° It applies equally to estates for life or in fee.* The name of this important clause originates in the circum- stances under which it was first applied.'' The general purport of this expression is that the wife shall be prohibited the anticipation of the income of her separate property or the anticipation of the capital of the fund. Yet the word " anticipation " need not be used in clauses of this sort, nor is any particular form of expres- sion necessary.* This restraint will not prevent a husband from receiving his wife's separate income, nor render his estate liable for more than one year's income, nor, in general, interfere with arrears of income ; but it prevents anticipating income on her part, and subjecting to her dominion or her liabilities the capital or income which is not yet payable.* Like the separate use itself, this clause of restraint on anticipa- tion exists only in the marriage state; and property vested in a single woman she may dispose of absolutely, despite such limita- 5. Bagget v. Meux, 1 Phil. 627, per Maeq. Hus. & Wife, 314, n.; Steedman Lord Lyndhurst; 1 Coll. 138; Macq. v. Poole, 6 Hare, 193 ; Parkes v. White, Hus. & Wife, 312 ; Peachey, Mar. 11 Ves. 222 ; Clark v. Piater, 3 Bro. C. Settl. 284. Nor can she join her hus- C. 346, cited in Pybus v. Smith; Bar- band in a power of attorney to re- rymore v. EUis, 8 Sim. 1; Brown v. ceive or sue for moneys tied up by this Bamf ord, 1 Phil. 620 ; Field v. Evans, clause. Kendrick v. Wood, L. E. 9 15 Sim. 375 ; Baker v. Bradley, 2 Jur. Eq. 333. (N. S.) 104; Peachey, Mar. Settl. 287, 6. Ih. 288, and eases cited; Harrop v. How- 7. See Pybus v. Smith, 3 Bro. C. C. ard, 3 Hare, 624; Harnett v. Mc- 340; Jodrell v. Jodrell, 9 Beav. 5ff. Dougall, 8 Beav. 187; Acton v. White, 8. Per Lord Cranworth, In re Boss 's 1 Sim. & Stu. 429. Trust, 1 Sim. 199 ; Doolan v. Blake, 3 9. See Rowley v. Unwin, 2 K. & J. Ir. Ch. 349; Peachey, Mar. Settl. 287. 138; Be Brettle, 2 De G. J. & 8. 79; See further, Moore v. Moore, 1 Coll. Lewin Trusts, 556,_5th ed. 67; TuUett v. Armstrong, 1 Beav. 1; 289 EQUITABLE SEPARATE ESTATE. § 273 tion, so long as aiie remains unmarried ; but upon her coverture, "while retaining suoh property, the separate use and the restraint upon anticipation attach and become effective together, cease together upon her widowhood, and revive together upon her remarriage/" But the restraint on anticipation does not exempt a married woman from the ordinary consequences of lapse of time and acqui- escence.^^ That fetter upon alienation was imposed for her pro- tection against her husband, but was not intended to exonerate her from the obligation of asserting her claim within a reasonable period. Indeed, it is but reasonable that, as a court of equity creates and models the separate estate, the estate so created and modelled sihould be subject to the ordinary rules of the oourt.^^ But the court cannot mould at will the restraint upon anticipation, though the language used by some of the earlier judges would seem to indicate otherwise; nor get rid of it even where alienation would be advantageous for the married woman; moreover, while the power to impose restraint on anticipation is a mere creature of the court, the restraint itself is always imposed by the author, the settlor of the gift.^^ It is held in this country that if a mar- ried woman having a separate estate survives her husband, the restraints upon the disposal of the estate, inconsistent with its general character, cease with the coverture.^* Moreover, in Penn- sylvania it is held that tlhey do not revive on her second marriage,^" 10. Tullett V. Armstrong, 1 Beav. 1 ; stance, a wife 's pension. Be Peacock 's 4 Myl. & Cr. 377 ; Macq. Hus. & Wife, Trusts, L. E. 10 Ch. D. 490. An in- 313; Clarke v. Jaques, 1 Beav. 36; genious attempt was lately made in Dixon V. Dixon, 1 Beav. 40. English chancery to allow a married 11. Restraint on anticipation is bad woman, restrained from anticipation, when it tends to a perpetuity. Buck- to anticipate. Pike v. Fitzgibbon, L. ton V. Hay, 37 W. R. 527. R. 14 Ch. D. 837. It failed on appeal, 12. Derbyshire v. Home, 3 De G. M. and the strict rule was reasserted. & G. 113. s. c, app. 29 W. R. 551. As to 13. Robinson v. Wheelwright, 21 whether restraint on anticipation may Beav. 220; s. c. on appeal, 6 De G. bar an entail and deprive husband of M. & G. 535; 2 Jur. (N. S.) 554. See curtesy, see Cooper v. Maedonald, L. Peaehey, Mar. Settl. 289 ; Fitzgibbon R. 7 Ch. D. 288. V. Blake, 3 Ir. Ch. 328. Income which 14. Smith v. Starr, 3 Whart. 62; a wife is restrained from anticipating Pooley v. Webb, 3 Cold. (Tenn.) 599; will not be applied to make good the Thomas v. Harkness, 13 Bush (Ky.), consequences of her fraud. Arnolds v. 23. Woodhams, L. R. 16 Eq. 29. 15. Hamersley v. Smith, 4 Whart. A separate trust may be rendered (Pa.) 126. forfeitable on assignment; as, for in- 19 i§ 273 HtrSBAND AND WIFE. 290 though this is contrary to the general rule of equity, unless the trust was plainly confined to a particular husband or particular coverture.^" American courts have seldom to consider clauses of restraint against anticipation or alienation,^' a subject which the English chancery courts have considered at much length. Restraining a wife's power to deal with her separate property seems, in American policy, too much like denying her a separate property. Yet there are good grounds for such constraint; and in various instances our State courts find occasion to recognize such clauses. The restraint is held, as in England, to apply equally to real or pe]> sonal property, and to estates in fee or for life.^* It will come into operation, like the separate use to which it is attached, where a woman marries; but it exists only in the marriage state, since one sui juris is unrestrainable by any such means from exercising the ordinary rights of ownership, whether widow or maiden.^* And while she may be restrained by language of the instrument under which her title is acquired, amounting to a clause restrain- ing antitcipation, for instance, yet the intention to restrain her must be clearly expressed ; or else she may deal with the property as she pleases, either by acts inter vivos or by testamentary appointment.^" The clause of anticipation, which is such a favorite in English chancery, under instruments drawn for the creation of a separate use, is seldom applied in American oases ; ^^ but in absence of all such technical clauses, our general rule is that the wife, unless specially restrained by the terms of the trust under which she acquired her equitable separate property, may dispose of it at pleasure. Jaques v. Methodist Episcopal Church went so far as to rule that, though a particular mode of disposition be specifically pointed out in the instrument, this vsdll not preclude the wife from 16. Shirley v. Shirley, 9 Paige (N. There must be a clear and nnequiv- T.), 364; Beaufort v. Collier, 6 oeal erpression of intent to restrain Humph. (Tenn.) 487 ; Waters v. the jiis disponendi. A declaration that Tazewell, 9 Md. 291; 2 Perry Trusts, the property shall not be liable for § 653. her debts, etc., is insufficient. Witsell 17. Supra. v. Charleston, 7 8. C. 88; Eadford v. 18. Treeman v. Flood, 16 Ga. 528; Carwile, 13 W. Va. 572. dicta in WUbum v. McCaUey, 63 20. Eich v. CockeU, 9 Ves. 639; Ala. 436; Burnett v. Hawpe, 25 Gratt. Moore v. Morris, 4 Drew. 38; DarMn (Va.) 481. V. DarMn, 17 Beav. 581; Caton v. 19. Wells T. MeCall, 64 Pa. 207; Eideout, 1 Mae. & Gord. 601. Parker v. Converse, 5 Gray (Mass.), 21. Post, § 490 et seq. 336. 291 EQUITABLE SEPAKATE ESTATE. § 273 adopting any other mode of disposition unless S'he has been, by express language of the trust, specially restrained to that particu- lar mode.^^ In this latter doctrine Chancellor Kent (whose judg- ment in the lower court had been reversed ^*) did not concur, — adopting the more conservative view with reference to suoh restric- tions. The distinction is rather a nice one, and successive American decisions in other States have generally sustained the Chancellor's views, which seem indeed most consonant to reason and the intent of such trusts; but the cases are, on tie whole, conflicting, and not very conclusive.^* Both English and American precedents agree in the converse principle, that if, by the terms of the trust, the wife is expressly restrained to a particular mode of dealing with the separate fund, 22. Jaques v. Methodist Episcopal Church, 17 Johns. (N. T.) 548; Meth- odist Episcopal Church v. Jaques, 1 Johns. Ch. (N. T.) 450; 3 ib. 77. 23. 3 Johns. Ch. (N. T.) 77. The point contended for by the Chancellor, but disapproved on appeal, was, that if a wife has power expressly con- ferred to dispose by deed in concur- rence with her husband, or by will without it, her receipt " alone " to be a sufficient discharge as to rents, issues, and profits; the wife cannot appoint by deed, or charge the prop- erty by her sole bond, note, parol promise, etc. Hoar, J., in Willard v. Eastham, 15 Gray (Mass.), 338, observes, by way of dictum, that "the general current of American authorities supports the principle that a married woman has no power in relation to her separate estate but such as is expressly con- ferred in the creation of the estate; and that her separate estate is not chargeable with her debts or obliga- tions, unless where a provision for that purpose is contained in the in- strument creating the separate es- tate." If by this is meant that the wife's power of disposition must be expressly conferred ia order to op- erate the statement appear very far from accurate, and is by no means what Chancellor Kent contended for in the above case. In 2 Perry Trusts, §§ 655-663, the same idea is expressed, probably upon the authority of the Massachusetts court. 24. See Tullett v. Armstrong, 1 Beav. 1, at length, for the English doctrine. For American authorities, see 2 Kent Com. 165, 166, and cases cited in last edition; also the follow- ing which appear to favor Chancellor Kent's rule: Shipp v. Bowmar, 5 B. Mon. (Ky.) 163; Tarr v. WiUiams, 4 Md. Ch. 68 ; Nix v. Bradley, 6 Eieh. Eq. (S. C.) 53; Wylly v. Collins, 9 Ga. 233; Doty v. Mitchell, 9 8m. & M. (Miss.) 435; Morgan v. Elam, 4 Terg. (Tenn.) 375; MeClintic v. Ochil- tree, 4 W. Va. 249'; Lancaster v. Dolan, 1 Eawle (Pa.), 231; Sherman V. Tnrpin, 7 Cold. (Tenn.) 382; Met- calf V. Cook, 8 E. I. 355; Porcher v. Keid, 12 Eich. Eq. (S. C.) 349; Har- ris V. Harris, 7 Ired. Eq. (N. C.) Ill; Hume V. Hord, 5 Gratt. (Va.) 374; Hicks V. Johnston, 24 Ga. 194; Andrews v. Jones, 32 Miss. 274 ; Leay- craft V. Hedden, 3 Green Ch. (N. J.) 512; Penn. Co. v. Foster, 35 Pa. 134; Chew V. Beall, 13 Md. 348. But Kimm v. Weippert, 46 Mo. 532; Machir v. Burroughs, 14 Ohio St. 519, bear in favor of the more lib- eral rule of the New York appel- late court. As to a deed which lim- its the wife's power to mortgage, see Maurer's Appeal, 86 Pa. 380. § 274 HUSBAND Al. 618; Macq. Hus. & Wife, 321; 2 490; Ashworth v. Outram, L. B. S Bright, Hus. & Wife, 297. Ch. 923. See comments in Macq. Hus. 73. Barlow v. Bishop, 1 East, 432; & Wife, 323, on the cases cited in 2 Maeq. Hus. & Wife, 322; 2 Bright, Eoper, Hus. & Wife, 172, 173. Hus. & Wife, 297. 76. See Separation, post, § 1060. 74. Petty v. Anderson, 2 Car. & P. 77. Cf. Bruce & Turner, Lord Jus- 38; Macq. Hus. & Wife, 322. tices, in Johnson v. Gallagher, 3 De G. 75. But see the recent cases of Tal- F. & J. 49'4. bot V. Marshfleld, L. E. 3 Ch. 622; "- 325 WIFE AS SOLE TEADEK. § 298 imprisonment for debt without ter husband, and, moreover, might be declared a bankrupt." If the husband had any concern in the business, the wife was no longer to be treated as a feme sole in respect of it," and " for conformity " it was needful to join the husband in such suits, even though the wife were alone liable, being herself the substantial party proceeded against.*" In Penn- sylvania, and doubtless in most other States, the wife is not per- mitted to be a feme sole trader upon any temporary inability of the husband or his mere involuntary failure to support her, nor upon any theory of a mere custom, while they live together." But in one or two Southern States it would appear as if the London custom had been adopted and recognized within certain limits, by virtue of old local statutes or otherwise, so as to render it im- material whether or not husband and wife live together. Thus, in South Carolina a feme sole trader is held bound to a third person by her indorsement to him of a note drawn by her husband payable to herself,'^ and in that State have been numerous decisions, early in the last century, requiring the wife to be engaged in trade or commerce, but permitting her to keep boarders, and so on.*^ § 298. Under Civil Law Codes. By the Civil Code of France, the wife may carry on a trade independently of her husband.'* So the wife may be a separate trader under the custom of Paris.*" And a similar right is Tecognized by the laws of Spain and other European countries.'* From the civil, rather than the common law, are derived those 78. Beard v. Webb, 3 B. & P. 97. peached. ' ' 2 Bright, Hus & "Wife, 77. See 2 Eoper, Hus. & Wife, 124. 81. King v. Thompson, §7 Pa. 365 ; 79. 3 Bright, Hus. & Wife, 77, 78 ; Jacobs v. Featherstone, 6 W. & S. Lavie v. Phillips, 3 Burr. 1776. (Pa.) 346. In this State there ap- 80. The Liber Alhiis, in the town pears to have been an old statute of clerk's office, stated that "where a 1718 on the subject, as well as the feme covert of the husband useth any later one of 1855. craft in the said city on her sole ac- 82. Wilthaus v. Ludicus, 5 Eich. (S. count, whereof the husband meddleth C.) 326. And see Stimson v. White, nothing, such a woman shall be 20 Wis. 562. charged as a feme sole concerning 83. McDaniel v. Cornwall, 1 Hill (S. everything that toucheth the craft; C), 428; Dial v. NeufEer, 3 Eich. (S. and if the husband and wife be im- C.) 78; Newbiggan v. Pillans, 2 Bay pleaded, in such case the wife shall (8. C), 162. plead as a feme sole; and, if she be 84. Code Civil, art. 220; 1 Burge, condemned, she shall be committed to Col. & For. Laws, 219. prison till she have made satisfaction, 85. 1 Burge, Col. & For. Laws, 218. and the husband and his goods shall 86. 76. 226, 420, 698. not, in such case, be charged nor im- § 300 HUSBAND AND WIFE. 326 property rights of married women which are recognized in Louis- iana, California, and others of the South-western States, origin- ally colonized by the Spanish and French. Thus the Louisiana code recognizes the capacity of the wife to carry on separate trade, or, as it is said, to constitute herself a public merchant, provided she act bona f,de, and have an active agency in the concern.*^ § 299. View that Wife Cannot be Separate Trader at Common Law. On the other hand, in Worth Carolina the whole doctrine of separate trading is expressly repudiated,*' and it is there held that it is the function of the legislature to say when and how a wife may become a free trader.*" Indeed, our earlier American cases seem to have regarded with very little favor the doctrine that the wife, while living with her husband, could carry on a business of her own, without rendering her husband liable and sub- jecting her stock in trade to his debts.®" And the same may be said of States whose legislatures have not freely conceded the right of married women to incur great risks.®^ § 300. Under Antenuptial Agreement. This doctrine of the wife's power to trade comes up in the United States, with our policy in favor of the independence of married women. And the rule seems, apart from legislation, to be well established in the United States, that the husband, in pursuance of a marriage contract, antenuptial or postnuptial, may confer upon his wife the right to trade for her exclusive benefit."^ Nor have, the American cases uniformly insisted upon formal con- tracts for this purpose between husband and wife; seemingly re- garding the question as one of mutual and hona fide intention merely. 87. La Code, art. 138; Christensen 91. Godfrey v. Brooks, 5 Harring. V. Stumpf, 16 La. Ann. 50. And see (Del.) 396; Woodcock v. Eeed, 5 Allen Camden v. Mullen, 29 Cal. 564; Bead- (Mass.), 207. ing V. Mullen, 31 Cal. 104; Community 92. Richardson v. Merrill, 32 Vt. Doctrine, post, § 579, et seq. 27; Tillman v. Shaekleton, 15 Mich. 88. McKinnon v. McDonald, 4 Jones 447 ; Wieman v. Anderson, 42 Pa. Eq. (]Sr. C.) 1. As to Alabama, see 311; Duress v. Horneffer, 15 Wis. Newbrick v. Dugan, 61 Ala. 251. 195; James v. Taylor, 43 Barb. (N. 89. Scott-Sparger Co. v. Ferguson, T.) 530 ; Wilthaus v. Ludicus, 5 Eich. 152 N. C. 346, 67 S. B. 750. (S. C.) 326; TJhrig v. Horstman, 8 90. McKinley v. McGregor, 3 Whart. Bush (Ky.) , 172 Cowan v. Mann, 3 (Pa.) 378, and cases cited. Lea (Tenn.), 239. 327 WIFE AS SOLE TKADEE. § 301 § 301. American Equity Doctrine. The equity rule in Vermont is that the wife shall hold the result of her earnings, in every case, against the husband and his heirs, and generally against his creditors, so long as he allows her to keep the property separate from the general mass of his own estate; and this, although his own name may be used in the formal conduct of the business; unless, in the case of creditors, this should lead to a false credit on the part of the husband.®* And in one case the stock in a millinary shop, resulting from the wife's credit and her earnings under the sanction of her husband, was treated as her separate property, and held liable for demands affecting it.®* In Virginia, a married woman owning a separate property, is allowed, on equity principles, to engage in trade with her husband's consent, either on her sole account or in partnership with a third person; and by doing so she subjects her separate es- tate to payment of the business debts. And, as against the hus- band and his creditors, she is entitled to the profits, so far, at least, as they did not accrue from labor, skill, or capital be- stowed by himself.®^ So in Michigan the wife is permitted to keep a boarding-house as her own separate business, and upon her own account ; and the same is said of other pursuits, though the courts of that State seem disposed to restrict her to the exercise of such business as is usually carried on by females and consists largely and almost necessarily of female labor."" In Pennsylvania, it is decided that a wife may trade with merchandise acquired in her own right, and with the proceeds of sales buy other goods to be held and traded with, which continue exempt from seizure for her hus- band's debts.®' In Wisconsin, where a married woman, with the assent of her husband, engages in business as a sole trader, and contracts a debt for goods to carry it on, verbally pledging the faith of separate estate, her whole separate estate must answer for it.®* But earn- ings acquired from his business managed in his absence are not 93. Per Eedfield, C. J., in Eiehard- 97. Wieman v. Anderson, 43 Pa. son V. Merrill, 32 Vt. 27. 311; Manderbach v. Mock, 29 Pa. 43. 94. Partridge v. Stocker, 36 Vt. 108. But see Hoffman v. Toner, 49 Pa. 95. Penn v. Whitehead, 17 Gratt. 231. (Va.) 503. 98. Todd v. Lee, 16 Wis. 480. 96. Tillman v. Shackleton, 15 Mich. 447 ; Glover v. Alcott, 11 Mich. 471. § 301 HUSBAND AND WIFE. 328 hers independently of Ms gift.®* And in Indiana it is said that while, as an abstract proposition, the law may not authorize a married woman to enter into a contract of partnership, yet if she does make such contract, and in pursuance thereof places her separate funds in the firm of which she is by contract a partner, such funds cannot, while there, be made subject to her husiband's deibts.^ The conclusion to be drawn from this class of cases is that, modem policy having once conferred upon the wife large powers both as to the acquisition and enjoyment of separate prop- erty, as well as the right to invest and reinvest the same, including their rights under marriage settlements, married women naturally sought business opportunities with their capital; and thus the modem courts, confronted with the practical results, and aided by precedents from old local customs or old legislation, were drawn into the practical concession of trading privileges, and hence of trading liabilities, while professing to deny to the wife on general principles the right to engage in mencantile pursuits without more explicit statute provisions to that effect, and while requir- ing the assent of the husband to appear. Where it is clearly for the wife's advantage to reap the benefits of her business, the disposition of the law to yield them must be strong; but where, as must often be the case, she speculates im- prudently and becomes deeply involved, the court is perplexed, though doubtless anxious to relieve her. The Vermont equity rule in this respect, indicated in this section,'' perhaps not an unreasonable one, goes beyond all the English precedents cited to support it; though in the leading Virginia and Vermont cases, and perhaps in others upon this point, we find the married woman who has subjected her property to the demands of her husband's creditors permitted to stand in equity, where the business fails, as a sort of preferred creditor, for her manifest benefit.^ Whether a creditor's claim for moneys due from the wife on account of supplies to carry on the separate business can be enforced against her is under the rule as to a beneficial dominion set forth in another chapter,* of at least doubtful equity," such indebtedness 99. Stimson v. White, 30 Wis. 562. 4. Supra, § 223 et seq. 1. Mayhew v. Baker, 15 Ind. 254. 5. Johnson v. Gallagher, 3 De G. F. 2. Supra, p. 327. & J. 494; Copeland v. Cunningham, 3. Penn v. Whitehead, 17 Gratt. 31 Ind. 116. But see Todd v. Lee, 16 (Va.) 503; Eithardson v. Merrill, 32 Wis. 480; Partridge v. Stoeker, 36 Vt. 27; Cowan v. Mann, 3 Lea "Vt. 108. (Tenn), 229. See Bellows v. Rosen- thal, 31 Ind. 116. 329 WIFE AS SOLE TKADEE. § 302 must usually be pronounced void at law ; " while even equity will decline to enter a decree establishing a charge on the wife's estate, unless the husband, or some other trustee for the wife, is properly before the court.'' If equity, unaided by legislation, preserves the separate capital thus invested in trade, that the wife may enjoy its benefits, it is otherwise with profits which may have accrued beyond the interest of such capital. These, it is declared in various cases which regard the separate trade with disfavor, belong to the husband like other separate earnings of the wife, so as to remain liable for hi^ debts ; being in fact as much the earnings of the wife as any other income or product by her labor and skill.* And, of course, the avails of the wife's labor in her husband's business belong as a rule to him, like her earnings, and property purchased therewith in her name cannot be held by her against his creditors.* § 302. Necessity of Proceedings to enable Wife to become Sole Trader. In order to become a free trader in Idaho, a wife must be adjudged such as provided by the statute.^" A similar statute exists in Pennsylvania ; ^^ under which a wife can only acquire powers to contract as to matters connected with her trade, not necessarily including a right to bind her separate estate.^^ Under a former statute in Kentucky, special authority to trade must first have been conferred by the chancellor.^' Such requirements not being complied with, the creditors of the husband might come upon lie assets of the business. When a wife had been so empow- ered as a sole trader, she could contract and be sued as though sole.^* That statute required that certain notice be given to enable the court to grant power as sole trader to the wife.^° Under it the G. Conklin v. Doul, 67 111. 355. 11. Petition of Graver, 260 Pa. 186, 7. Ibid. 103 A. 601 ; In re Coles, 230 Pa. 162, 8. Jassoy v. Delius, 65 111. 469; Jen- 79 A. 254; In re Browarsky's Estate, kins V. Flinn, 37 Ind. 349, and eases 252 Pa. 35, 97 A. 911. cited. But as to the husband's right 12. Harley v. Leonard, 4 Pa. Super, to confer her earnings upon the wife 431, 40 W. N. C. 225; Von Helmold when not in fraud of his creditors, v. Von Helmold, 19 Pa. Super. 217. see ^wpra. And see Dumas v. Neal, 51 13. Uhrig v. Horstman, 8' Bush Ga. 563, applying the rule of the text (Ky.) 172. where the wife took boarders. 14. Hart v. Grigsby, 77 Ky. 14 9. Clinton Man. Co. v. Hummell, 25 Bush (Ky.), 542. N. J. Eq. 45. 15. Hart v. Grigsby, 14 Bush (Ky.), 10. McDonald v. Eozen, 8 Ida. 352, 542 ; Dunn 's Exrs. v. Shearer, 14 Bush 69 P. 125. (Ky.) 574. § 303 HUSBAND AND WIFE. 330 failure to file the proof of notice as required by the statute was not jurisdictional." Such power could not he granted for the sole reason that the husband was insolvent, where it did not appear that the wife had an estate, or any trade or avocation in which she might engage," and whereby she could acquire property.^' A decree under that statute empowering her to " buy and sell, con- tract," etc., was held broad enough to enable her to hold and enjoy the proceeds of her own land.^* § 303. Necessity of Assent of Husband. The husband's assent is in general necessary, provided they live together ; and if they do not, different considerations apply. It is held in 'Sew York that the husband's assent does not carry with it an implied authority to make an assignment for the benefit of creditors of that business,^" though in New Jersey a wife, who has been permitted by her husband to trade, may transfer her stock in payment of notes given for the purchase-money.*^ And apart from statute, it would appear to be the general rule, that unless the husband's consent that the wife carry on business in her own name is based upon a sufficient consideration, he may withdraw it at any time and assert his common-law rights.*" In Indiana it is stated, in conformity with various precedents, that where a wife engages in business with the knowledge and consent of the husband, the business is regarded as that of the husband, with the wife as his agent, and he is bound for the per- formance of contracts which she may make relating to such busi- ness,"^ but that where the wife incurs the indebtedness, and the credit is given to her exclusively, and w'here, therefore, there can be no presumption that she was acting merely as the agent of the husband, the husband is not liable."* 16. Mann v. Martin, 14 Bush (Ky.), T.) 47; Todd v. Lee, 16 Wis. 480; 763. Richardson v. Merrill, 32 Vt. 27; 17. Moran V. Moran, 12Bush (Ky.), Partridge v. Stoeker, 36 Vt. 108; 301. Penn v. Whitehead, 17 Gratt. (Va.) 18. Clarkson v. Clarkson, 4 Ky. 503; King v. Thompson, 87 Pa. 365. Law, 901. 23. 2 Bright, Hus. & Wife, 300, § 19. Wiggins v. Johnson, 12 Ky. 20 ; Jenkins v. Plinn, 37 Ind. 349, and Law, 276, 1 S. W. 643. cases cited; Switzer v. Valentine, 4 20. Cropsey v. McKinney, 30 Barb. Duer (N. T.), 96. (N. T.) 47. 24. Tuttle v. Hoag, 46 Mo. 38; 21. Green v. Pallas, 1 Beasl. 267. Jenkins v. Flinn, 37 Ind. 349, and 22. Conklin v. Doul, 67 HI. 355; cases cited; 5 Taunt. 356. Cropsey v. McKinney, 30 Barb. (N. 331 WIFE AS SOLE TEADEE. § 304 The Alabama statute permits a wife to engage in business only with her husband's consent/" but she may without such consent acquire sufficient title to goods bought as to maintain trespass when they are attached as his.^" Under a similar Illinois statute it has been held that a sufficient consent is given where the husband engages in such business as her agent." Where a wife's debts as sole trader were not binding because of the want of her husband's consent, as required by the Alabama statute, her subsequent prom- ise to pay, without a new consideration, was held not binding, though signed by the husband/* § 304. English Statutory Rule. But the doctrine of a wife's separate trading is at this day to he considered under the combined influence of modem equity decisions as to the wife's jus disponendi, and the recent Married Women's Acts. And first, to study these decisions from the Eng- lish standpoint, the act of 1870 declares that wages and earnings of a married woman shall be her separate property.^* Under con- struction of this act, the English chancery has sustained the right of a butcher's wife to carry on her husband's business upon her separate resources, he being incapacitated through delirium tremens, and, while at home, offering no obstruction to her course ; notwithstanding neither a positive assent to the trade on his part appeared, nor his abandonment ; *° and the apparent effect of this decision was to treat the meat the wife bought as her statutory separate property, protected as hers against her husband's debts as well as purchasable on her separate credit. Again, both under the act of 1870 and independently of it, chancery protected the widow's interest as against the husband's administrator, after his death, in a fruit-preserving business, which she had commenced while single, then continued, after her marriage in 1874, to carry on in her maiden name, her husband consenting, and not interfering with it ; and, by means of her own capital and efforts, finally establishing it on a large wholesale basis. *^ 25. Horton v. Hill, 138 Ala. 625, 30. Lovell v. Newton, L. E. 4 C. P. 36 So. 465. D. 7. If his assent was not clearly 26. Eeeves v. McNeill, 137 Ala. 175, shown to his wife's trade, there would 28 So. 623. appear to have been a pretty fair 27. Taylor v. Minigus, 66 lU. App. inference, from the facts, that he 70. gave it. 28. Horton v. Hill, 138 Ala. 625, 36 31. Ashworth v. Outram, L. E. 5 So. 465. Ch. 923. 29. Act 33 & 34 Vict., ch. 93. § 305 HUSBAND AND WIFE. 332 A partnership of two single women in England having been dissolved by the marriage of one of them, and the stock, good-will, and business having been bought in by the woman remaining single, chancery, upon the ordinary construction of such sales, refused recently to grant an injunction in favor of the married woman and her husband, who had commenced a new business together in Paris, to restrain the single woman from carrying on her business in London under the old firm style.'^ § 305. Under Americein Married Women's Acts in General. The Married Women's Acts in many of the United States have enlarged and more fully established the wife's power to trade on her own account ; and the profits of her business are thus secured to her sole and separate use.*' Under the Oklahoma statute the wife has the same capacity as her husband to engage in trade.^* The wife, under such statutes, is found engaged on her separate account, as milliner and dressmaker,*^ farmer,*" boarding-house keeper," army sutler,** operator of a mill,*' saloon-keeper,*" tavern-keeper,*^ or in whatever other business she may choose to carry on with her own capital. Under the New York Married Women's Act a wife may trade and bind herself by a purchase of property therefor, whether she has a separate estate or not. In Louisiana goods purchased by a wife as sole trader must be shown 82. Be Peacock's Trusts, L. R. 10 Thompson, 87 Pa. 365. In Kentucky Ch. D. 490. the separate trading acts are limited 33. Persica v. Maydwell, 102 Tenn. in this direction by judicial constnic- 207, 52 S. W. 145. Such statutes are tion. Moran v. Moran, 13 Bush to be found in New York, Maine, New (Ky.), 301. Hampshire, Massachusetts, Connecti- 34. Farmers' State Bank v. Keea cut, Kansas, New Jersey, Iowa, Cali- (Okla.), 167 P. 207. fornia, Wisconsin, Illinois, Arkansas, 35. Jassoy v. Delius, 65 111. 469; Mississippi, and other States. And Tuttle v. Hoag, 46 Mo. 38. see Mitchell v. Sawyer, 31 la. 582. 36. Kouskop v. Shontz, 51 Wis. 304 ; "Free dealer" and "sole trader," Snow v. Sheldon, 126 Mass. 332. are words used in this connection: 37. Bartholomew v. Adams, 143 la. Newbrick v. Dugan, 61 Ala. 351; 354, 121 N. W. 1036; Harnden v. though strict trade is not always re- Gould, 126 Mass. 411; Dawes ▼. garded in the acts referred to. And Eodier, 135 Mass. 421. as to /erne sole trader, see Separation, 38. Swasey v. Antram, 24 Ohio St. post; Porter v. Gamba, 43 Cal. 105. 87. Private acts are sometimes passed to 39. Cooper v. Ham, 49 Ind. 393. this effect. Halliday v. Jones, 57 Ala. 40. Nispel v. Laparle, 74 111. 306. 525. Pennsylvania has a feme sole 41. Silveus v. Porter, 74 Pa. 448; trader act not aplicable to the ordi- Aitken v. Clark, 16 Abb. Prac. (N. nary ease of a husband's insolvency T.), 328, note. while he remains at home. King v. 333 WIFE AS SOLK TEADEE. § 30G to be in the line of her trade, and not for the use of her husband, in order to bind her by the contract.*^ § 306. Massachusetts and Pennsylvania Statutory Rule. The statutes of Massachusetts require the married woman to first register her intention, thus affording a very reasonable safe- guard against fraud and imposition upon the public and herself, besides requiring that the act be a deliberate one," and the husband will be held liable on her contract where the certificate is not duly filed.** The certificate is required even where the creditor knows that she is trading on her own account,** but is not required where the wife's place of business is removed from one street to another in the same city.*' In case of such default, the liability of the spouses for her debts incurred in carrying on Hie business is several and not joint.*' Where a wife owned real estate whereon a business was conducted by her hu^and without paying rent, and where she owned all his stock in trade, she was held to be conducting business on her own account.*' Where a wife con- ducts a boarding house, debts due for board are part of the prop- erty employed in the business, within the meaning of that statute, in default of which such debts are liable to attachment for the husband's debts.** The statute has been held inapplicable, as a matter of law, to cord wood, cut and piled on her wood lot, ten miles from her farm, though she was managing the farm on her separate account and intended to sell the wood,"" nor to a case where a wife in her lifetime had conducted a separate business without filing a certificate, which business her administrator did not continue, the action against her husband being brought after 42. Carroll v. Barriere, Man. Unrep. Wright, 129 Mass. 296. It need not Cas. (La.) 436. specify property. Long v. Drew, 114 43. Mass. Stats. 1862, ch. 198. This Mass. 77. statute requirement does not apply to 44. Feran v. Rudolphsen, 106 Mass. keeping a colt for use, nor to buying 471. materials to build a house for the 45. Parsons v. Henry, 197 Mass. family. Proper v. Cobb, 104 Mass. 504, 83 N. E. 1110. 589. But it applies to the boarding- 48. Lowell Trust Co. v. Wolff, 223 house business. Hamden v. Gould, 126 Mass. 168, 111 N. E. 798. 411. And the farming business. 47. Browning v. Carson, 163 Mass. Snow V. Sheldon, 126 Mass. 132. See 255, 39 N. E. 1037. also, as to removing to a new town, 48. Desmond v. Young, 173 Mass. Dawes v. Rodier, 125 Mass. 421. It 90, 53 N. E. 151. does not to other property than per- 49. Dawes v. Eodier, 125 Mass. 421 ; sonal. Bancroft v. Curtis, 108 Mass. Hamden v. Gould, 126 Mass. 411. 47. Nor where both spouses were not 50. Ayer v. Bartlett, 170 Mass. 142, domiciled within the State. Hill v. 49 N. E. 82. § 308 HUSBAND AND WIFE. 334 her death.^^ A similar statutory rule prevails in Pennsylvania. The effect of filing such a certificate under the Pennsylvania statute is defeated by a reconciliation as far as her will is con- cerned, and in such case the husband may tafce as though there was no will.^^ § 307. What Constitutes Sole Trading. That the business under such statutes should be pursued as a continuing and substantial employment. And hence the mere renting of a room or two by a married woman in the house in which she lives with her husband is not " carrying on business " within the meaning of such an act.'^* The word " business," in the Nebraska statute empowering a wife to engage in trade or business, is used in a popular sense, including an employment or profession followed as a means of livelihood.''* In the North Carolina statute the words " contract and deal " refer to ordinary bargains and trades incident to business enterprises and do not include conveyances of real estate.^^ § 308. Validity of Wife's Trading Contracts in General. Under these American statutes permissive of the wife's separate trade, it is a general rule that the wife's contracts regarding her separate trade or business are binding on her separate property, and that the husband is not answerable for her solvency. With reference thereto she may make contracts, and sue and be sued, as if sole, except (as such statutes usually run) that where she is sued the remedy is to be enforced against her separate property only, and not against her person. She may make contracts of sale, and sue for goods sold and delivered to her customers."* And what she thus purchases, in the exercise of her trading discretion, is to be held and treated as her sole and separate property as against her husband and his creditors."^ Where, too, the married woman 51. Allen v. Clark, 190 Mass. 556, Trieber v. Stover, 30 Ark. 727. The 77 N. E. 691. contracts of married women, made by 52. In re Flanagan 's Estate, 59 Pa. virtue of such statute capacity, should Super. 61; In re Hellwig's Estate, not be viewed with hesitation or aus- 59 Pa. Super. 233. picion by the courts, but should be 53. Holmes v. Holmes, 40 Conn. 117. fully enforced. Netterville v. Barber, 54. Dr. S. S. Still College & Infirm- 52 Miss. 168. ary of Osteopathy v. Morris, 93 Neb. 57. Tallman v. Jones, 13 Kan. 438; 328, 140 N. W. 272. Meyers v. Rahte, 46 Wis. 655 ; Sam- 55. Council v. Pridgen, 153 N. C. mis v. McLaughlin, 35 N. Y. 647; 443, 69 S. E. 404. Silvens v. Porter, 74 Pa. 448; Dayton 56. Porter v. Gamba, 43 Cal. 105 ; v. Walsh, 47 Wis. 113. Netterville v. Barber, 52 Miss. 168; 335 WIFE AS SOLE TEADEE. § 310 keeps a separate bank account, witli reference to such business, the check which she draws against it and the fund itself are avail- able to her business creditors/* What she borrows by way of capital to commence the business she is required to refund.°° The power to do business implies, too, the power to purchase goods, fixtures, and stock for it, and execute the needful instru- ments of purchase ; and hence the wife's contracts for such pur- chase on credit, her notes, bills, security, or simple indebtedness therefor, must be deemed oibligatory and enforceable by suit or otherwise.*" On general principles, equity will enjoin a married woman who sells out a business and its good-will, which she has carried on for her separate account, from violating her own agreement vsdth the purchaser in restraint of future competition or interference; for in this respect a married woman should not be regarded more favorably than others who dispose of their business to hona fide purchasers.*^ § 309. Effect of Estoppel. Married women, as it is well observed, to the extent and in the matters of business in which they are by law permitted to engage, owe the same duty to those with whom they deal, and to the public, and may be bound in the same manner as if they were unmarried. To the extent of their enlarged capacity to transact business as conferred by statute, they may be estopped by their acts and declarations, and made subject to all the presumptions which the law indulges against the other sex.°^ § 310. Effect of Bankruptcy of Wife. A married woman's firm, trading under a permissive local statute, has been adjudged bankrupt in this country.*' But it is 58. Nash v. Mitchell, 15 N. T. 471. ton v. Walsh, 47 Wis. 113 ; Wheaton 59. Frecking v. EoUand, 53 N. Y. v. Phillips^ 1 Beasl. 221; Guttman v. 442. As to purchasing fixtures or real Scannell, 7 Cal. 455 ; Camden v. Mul- estate for carrying on the business, len, 29 Cal. 564; Reading v. Mullen, see Ih.; Dayton v. Walsh, 47 Wis. 31 Cal. 104. 113. The rule of contract liability 61. Morgan v. Perhamus, 36 Ohio (apart from any statute of frauds as St. 517. And see Be Peacock's Trusts, to conveyances) is the same, whether L. E. 10 Ch. D. 490. the evidence of the wife's contract be 62. Bodine v. Killeen, 53 N. T. 93; oral or written. Kouskop v. Shontz, Parshall v. Fisher, 43 Mich. 529; Le- 51 Wis. 204. land v. Collver, 34 Mich. 418. 60. Nispel V. Laparle, 74 111. 306; 63. Se Kinkhead, 3 Biss. (TJ. S.) Kouskop V. Shontz, 51 Wis. 204; Day- 405. § 311 HUSBAND AND WIFE. 336 held in England that a married woman having no separate prop- erty cannot be adjudged a bankrupt upon a judgment against her for an indebtedness which does not concern a separate trade."* § 311. Liability of Husband. It follows that under such legislation the husband is not liable on the wife's contracts and liabilities incurred in the pursuit of her separate business, unless he participates in it.*° But his par- ticipation will not unfrequently be found in the modem cases; and hence arises legal uncertainty, and often a suspicion of fraud- ulent arrangements against one another's creditors. Does the proof, we must ask, under any such circumstances, show that the wife carried on no separate trade, but was her husband's agent? or that she did, and the husband was her agent ? or that they were in partnership together? In Massachusetts, where the statutory doctrine of the wife's power to trade and acquire separate earnings has already received a considerable exposition in the courts, it is held that where a married woman carries on the business of keeping boarders on her sole and separate account, and has purchased goods to be used in her business on her sole credit, she alone is liable, although her husband lived with her when the goods were purchased ; and her own acts and admissions in reference to the business are competent evidence against her.*" In Maine the husband cannot be sued for goods and chattels furnished his wife by third persons in the course of her business, even though such purchases were made by her with his knowledge and consent, and although sihe appropriated part of the proceeds to the support of her husband and family." But where the purchase and sales are made with the husband's knowledge and consent, and he participates in the profits of the business, knowing them to be such, and that she professed to act for him, it may be inferred in general that the purchases were made on the husband's credit."* Where the separate business, however, is carried on against the husband's consent and without his concurrence, he assuredly is not liable.*® 64. Ex parte Holland, L. E. 9 Oh. underlet for a wife's business, see 307. Knowles v. Hull, 99 Mass. 563. 65. Parker v. Simonds, 1 Allen 67. Colby v. Lamson, 39 Me. 119. (Mass.), 258; Colby t. Lamson, 39 68. Oxnard v. Swanton, 39 Me. 125. Me. 119'; Trieber v. Stover, 30 Ark. 69. Tuttle v. Hoag, 46 Mo. 38; Jen- 727; Tuttle v. Hoag, 46 Mo. 38. kins v. Flinn, 37 Ind. 349". See Smith 66. Parker v. Simonds, 1 Allen v. Thompson, 36 Conn. 107, where the (Mass.), 258. As to husband's liabil- married woman had no power to trade ity on a lease, though professing to -- ^ 337 WIFE AS SOLE TEADEE. § 312 The husband who does not participate in his wife's business is not usually held liable under our separate trading acts ; and hence cannot be sued with his wife for her store rent.'" Apart from statutes giving a contrary scope to the rule, a single woman engaged in trade or business is legally engaged therein; if she marries, the disability of coverture puts an end to the trade, and dissolves her business copartnership if there be one; and thereupon the husband, by virtue of the common law, becomes liable for the business, even the partnership debts, having a corre- sponding right to recover her ^are in the assets on a winding up.'' § 312. Effect of Participation of Husband as Agent. In New York, as against her husband's creditors, the wife may make him managing agent and let him conduct the business in her name, while she furnishes capital from her own means and takes the profits to herself ; paying the managing agent what she thinks best, without subjecting the stock in trade to his debts.'" So it is held that a wife, by allowing chattels belonging to her, and which remain in specie, to be employed by her husband in carrying on a business for their common benefit, does not devote them to her husband, so as to render them liable for his debts.'* The courts of that State intimate, however, that there should be no fraud in such transactions ; which otherwise the reader might doubt, from finding such latitude given to the wife's business dealings. We ehotild add that it is deemed a question of fact for the jury, whether upon evidence a business is in trust the wife's, with the husband acting merely as her agent, or this agency is a cover for the husband's business to keep his property from his own cred- itors.'* And that under some circumstances a husband's agency from the wife will be considered revoked and the business subse- quently carried on for his benefit, and not hers alone.'° But the employment of her husband in carrying on her separate business of farming does not make him the wife's agent in the business, unless he contributed money or services as partner,'* nor his employment as salesman in the wife's store," or as operative or manager in his wife's mill." Proof that a husband signed notes 70. Jayeox v. Wing, 66 III. 182. 75. Hamilton v. Douglas, 46 N. Y. 71. Alexander v. Morgan, 31 Ohio 318. St. 546. 76. Hid. 72. Buckley v. Wells, 33 N. Y. 518. 77. Ploss v. Thomas, 6 Mo. App. 73. Sherman v. Elder, 24 N. Y. 381 ; 157. Barton v. Beer, 35 Barb. (N. Y.) 78. 78. Cooper v. Ham, 49 Ind. 393. 74. Abbey v. Deyo, 44 N. Y. 343. § 313 HUSBAND AND WIFE. 338 for goods in a shop leased to hiin is not conclusive proof that the goods did not belong to the wife's separate business/' for a husiband mig'ht sign as an agent and render her business liable.'" A change in the mutual relations of the spouses regarding the business ought, on the usual principles of both agency and partnership, to be brought home to the knowledge of creditors with whom business relations continue uninterrupted.*^ Where a married woman manages a separate trade or business by agents, the usual doctrine of agency must apply. The wife cannot avoid the usual liabilities on the plea that she made her husband her agent.*^ The scope of the agency, too, must be con- sidered as in other cases, and the agency, as actually conferred, is not the full test of responsibility for the agent's dealings with third parties, for those clothed with apparent authority may bind their principals as though really authorized.'^ A husband conducting his wife's separate business as agent cannot recover for his services without a special contract to pay for them.'* Where a husband became insolvent and money was loaned to his wife to continue the business on condition that the services of the husband were retained, he being paid a salary therefor, it was held that the profits acquired thereby were not subject to his debts.'' § 313. Rights of Husband's Creditors. All purchases or contracts of purchase for commencing or prose- cuting the wife's separate business must have been made in good faith and not as a means of fraudulently placing the husband's property beyond the reach of his creditors.'* But transactions which are tainted with fraud upon the rights of creditors and others must not be permitted to stand. Capital placed by a wife in her husband's hands, and by him so embarked in business with her assent that credit is obtained upon it, are not, with the increase, the wife's separate property, as against his creditors who have trusted accordingly, but rather his property." 79. Mason v. Bowles, 117 Mass. 86. S. E. 628; Paull v. Parks, 20 K7. 80. Freiberg v. Branigan, 18 Hun Law, 241, 45 S. "W. 873; Penn v. (N. Y.), 344. But as to a judgment Whitehead, 17 Grat. (Va.) 503, 94 rendered against the agent himself, Am. Dec. 478. see Smiley v. Meyer, 55 Miss. 555. 85. Kendall v. Beaudry, 107 Wis. 81. Bodine v. Killeen, 53 N. T. 93. 180, 93 N. W. 314. 83. Taylor v. Angel, 162 Ind. 670, 86 Dayton v. Walsh, 47 Wis. 113. 71 N. E. 49; Porter v. Gamba, 43 87. Patton v. Gates, 67 111. 164; Gal. 105. Kouskop v. Shontz, 51 Wis. 204. Or 83. Bodine v. Killeen, 53 N. Y. 93. possibly like that of a firm in which 84. Hood V. Eodgers, 99 Ga. 271, 25 both were partners. 339 WIFE AS SOLE TEADEE. § 314 And while, in general, the husband's gift may sustain the wife's <5laini of profits accruing from her separate trade, yet the better opinion is, upon either equity or statute consideration, that a busi- ness carried on by a husband and wife in co-operation, his labor and skill united with hers, must be considered as his business so far as his creditors are concerned, and fails accordingly of protec- tion for her especial benefit,*' though it might, perhaps, be well ruled in some States, that there is a partnership whose liabilities should be adjusted on partnership principles ; highly objectionable as the jurist may well regard all such partnerships upon principle. Even though the trade be unsuitable to her sex, fraud upon the husband's creditors will not be conclusively presumed.*' § 314. As Copartner; Generally. At common law a wife could not bind herself as a partner,®" but Married Women's Acts in several States now permit her to do so,°^ the power being predicated, in some cases, on her statutory right to contract.'^ In Alabama, where only the joint property of part- ners is bound by a judgment against the partnership, it is no defence to an action against it that one of the partners is a wife,®^ In Florida, only a wife who has been lawfully declared a free trader may be a partner,"" but her separate estate cannot be charged with debts contracted by her partner."' Under the Georgia Married Women's Act a wife may be a partner with any person except her husband."' In South Carolina a wife cannot bind her- 88. See National Bank v. Sprague, Law Rev. 129; ElUott v. Hawley, 34 5 C. E. Green (N. J.), 13; Oxnard Wash. 585, 76 P. 93, 101 Am. St. E. V. Swanton, 39 Me. 125; Cramer v. 1016. Eeford, 2 C. B. Green (N. J.), 383. 92. Vail v. Winterstein, 9'4 Mich. But see Penn v. Whitehead, 17 Gratt. 230, 53 N. W. 932, 18 L. E. A. 515; (Va.) 503; Partridge v. Stoeker, 36 Kutcher v. Williams, 40 N. J. Eq. Vt. 108. 436, 3 A. 257. 89. Guttman v. Scannell, 7 Cal. 455. 93. C. S. Tarbrough & Co. v. Bush 90. Nadel v. Weber Bros. Shoe Co. & Co., 69 Ala. 170; O'Neil v. Bir- (Fla.), 70 So. 20; Bryan v. Inman, mingham Brewing Co., 101 Ala. 383, 10 Ky. Law, 542 ; Foxworth v. Magee, 13 So. 576. 44 Miss. 430; Little v. Hazlett, 197 94. Porter v. Taylor, 64 Fla. 100, Pa. 591, 47 A. 855; Cleveland v. 59 So. 400; Virginia-Carolina Chem- Speneer (Tex.), 50 S. W. 405; Keith ical Co. v. Fisher, 58 Fla. 377, 50 So. V. Aubrey (Tex.), 127 S. W. 278. 504. 91. Norwood v. Francis, 25 App. 95. Nadel v. Weber Brothers Shoe D. C. 463; Stone Co. v. McLamb & Co. (Fla.), 70 So. 20, L. E. A. 1916D, Co., 153 N. C. 378, 69 S. E. 281; 1230. First Nat. Bank v. Eice, 22 Ohio Cir. 96. Butler v. Frank, 7 Ga. App. 655, Ct. 183, 12 O. C. T>. 121; Loeb v. 67 S. E. 884. MeUinger, 12 Pa. Super. 592, 17 Lane. § 315 HUSBAND AND WIFE. 340 self by a partnership not affecting her separate estate.®' Under the Virginia statute she may be a partner with the consent of her husband.®* In West Virginia a wife living with her husband cannot be a partner.®" § 315. With Husband. As to all agencies and partnerships one rule may apply in adjusting rights as between themselves, and another as to creditors whose confidence has been invited. And, on the whole, it would still appear to be the general rule, notvsdthstanding the late statutes, that a wife may not, as against the world, become her husband's partner, nor even join her labor and capital to his in one and the same business enterprise.^ In Massachusetts, while the statute permitted the wife to form a copartnersJiip with third parties, this exception the court so strictly enforced as to hold her transactions as a member of any firm in which the husband was interested as a partner utterly void, whether to her advantage or injury, inasmuch as a married woman cannot legally contract with her husband singly or jointly.^ But under the New York statutes it is held that a husband and wife may not only enter into a valid partnership together foi business, but carry it on under the name "A. & Co." (the " Co." representing the wife) without violating the law which forbids persons to transact business under fictitious names,' and that hence they can sue and recover in their joint names for goods sold and delivered by their firm.* In Illinois, too, as it would appear, a wife may enter into a partnership with her husband, and when she does this it wiU be presumed, in the absence of different proof, that she contributed her share of the capital, and that her time, skill, and earnings went into the business ; and such a partnership has been actually adjudged bankrupt." In California not only is the husband not forbidden to become a partner, but the plain intention of the Code is that he may furnish part of the capital 97. Collins v. Hall, 55 S. C. 336, 33 2. Lord v. Parker, 3 Allen (Mass.), S. E. 466. 137; Edwards v. Stevens, 3 Allen 98. Penn v. "Whitehead, 17 Gratt. (Mass.), 315; Plumer v. Lord, 7 Allen (Va.) 503, 94 Am. Dee. 478. (Mass.), 481. 99. Carey v. Burmss, 20 "W. -Va. 3. Zimmerman v. Erhard, 8 Daly 571, 43 Am. E. 790; Eingold v. Suiter, (N. T.), 311. 35 "W. Va. 186, 13 S. E. 46. 4. Ihid. 1. Wilson V. Loomis, 55 111. 352; 5. Be Kinkead, 3 Biss. (tJ. S.) 405. Montgomery v. Sprankle, 31 Ind. 113; As to bankruptcy, of. Ex parte Hol- Lord V. Parker, 3 Allen (Mass.) 127. land, L. B. 9 Ch. 307. 341 WIFE AS SOLE TKADEE. § 316 stock. The wife may sue alone in such business, and may employ her husband to manage it. In some Southwestern States" separate trading seems to be permitted on similar principles,^ The Maine Married Women's Act does not remove the wife's common-law disability to be her husband's partner, and bind her by partaer- ahip debts.* The same is true in South Carolina.' I 316. With Third Persons. By the wife's business copartnership with third persons, and particularly with those of the opposite sex apart from her husband, 48he entangles her separate property disadvantageously, and incurs the risk of personal affiliations, besides, quite perilous to domestic ooncord and the mutual confidence which marriage demands. In Massachusetts the legislature permitted a married woman to form a copartnership in business with third parties, though not with her husband ; but, after some ten years' experience, repealed, in 1874, that permission.^" Most other States deny her such a right as separate and exclusive of her husband's interest,^^ though in some parts of the Union such copartnerships are sustained,'^ and she is not unfrequently found connected with business firms as a partner in place of her deceased husband ; " sometimes, too, he is her successor, or else participates with her and third persons in the ooncem.^* Where a married woman enters legally into a copartnership she becomes personally liable, to the extent of her separate prop- erty, for the partnership debts, like any other partner.^" In Ohio it is held that where a married woman, assuming to «arry on a partnership business unconnected vsrith her separate property, is assisted by her husband, he, and not she, is to be regarded in law as the partner ; and that accordingly a firm cred- itor may proceed against the husband and the other members, not 6. Camden v. Mullen, 29 Cal. 564; 11. See Bradford v. Johnson, 44 Beading v. Mullen, 31 Cal. 104; Gutt- Tex. 381; Bradstreet v. Baer, 41 Md. mann v. Seannell, 7 Cal. 455. 19 ; Howard v. Stephens, 52 Miss. 239. 7. See Atwood v. Meredith, 37 Miss. 12. See Newman v. Morris, 52 Miss. 635; Oglesby v. Hall, 30 Ga. 386. 402. 8. Haggett v. Hurley, 91 Me. 542, 13. Preusser v. Henshaw, 49 la. 41. 40 A. 561, 41 L. B. A. 362. 14. Bitter v. Eathman, 61 N. T. 9. Collins V. Hall, 55 8. C. 336, 33 512; Swaaey v. Antram, 24 Ohio St. S E. 466. 87. 10. Todd V. Clapp, 118 Mass. 495. 15. Preusser v. Henshaw, 49 la. 41; Such a law, not being interpreted Newman v. Morris, 52 Miss. 402. retroactively, was held constitutional. Ih. § 318 HUSBAND AND WIFE. 342 including the wife, even ttougli, on dissolution of the firm, the other partners had transferred the property to her, she agreeing to pay all the firm debts." And where, again, a firm composed of two women put the husband of one in absolute charge of the busines'S, who, with his wife's knowledge and consent made pur- chases on credit, and acted as if he instead of his wife were one of the partners, it was held in Michigan that the husband and the other partner must be concluded by such conduct, as to credit- ors having no knowledge to the contrary, and that, in absence of superior equities, such creditors might treat the firm as composed of the husband and the other woman.^' These decisions tend to the protection of the vidfe. And such, too, is the effect of a New York decision, which, admitting that a husband might, perhaps, be deemed the partner as between the wife and himself or his creditors, rules, nevertheless, that where a married woman acting- under a secret trust for her husband, becomes a member of a co- partnership, she is to be regarded, as between her and her copart- ner, the owner of the interest she represents, so as to maintain proceedings for a dissolution of the copartnership and for an accoimting.^' § 317. As Stockholder. Married Women's Acts in some States enable a wife to become a stockholder in a corporation, and to be liable as such.'° In Louisiana a wife separated in properly from her husband by a judgment may be a stockholder, and be liable as such,^" and may be so liable in Florida even where the stock was acquired as a gift." § 318. Actions. Under the statutes of some States which permit the wife to trade separately, the wife's business debts may be collected from her by proceedings in equity for declaring such debts a specific lien on her separate estate.^^ But in other States such proceedings on behalf 16. Swasey v. Antram, 24 Ohio St. S. E. 345; Good Land Co. v. Cole, 131 87. Wis. 467, 110 N. W. 895. 17. ParshaU v. Fisher, 43 Mich. 529. 20. First Natchez Bank v. Moss, 52 18. Bitter v. Eathman, 61 N. T. La. Ann. 1524, 28 So. 133. 512. 21. Keyser v. Milton, 228 F. 594, 19. Norwood v. Francis, 25 App. D. 143 0. C. A. 116. C. 463; Meares v. Duncan, 123 N. C. 82. Wheaton v. Phillips, 1 Beasl. 203, 31 S. E. 476; Smathers v. West- (N. J.) 221. em Carolina Bank, 155 N. C. 283, 71 343 wiFi; AS SOLE teadek. § 318 of creditors are not favored, each creditor having, under local statute, the usual remedies at law as though the woman were single.^' The other members of the firm ought to be made parties where the wife is a copartner.^* So, too, statutes permit the wife to sue, as if unmarried, the business debtors.''^ Allegation of business, or, in other words, of separate capacity, should usually appear of record in all such suits, whether the married woman be plaintiff or defendant/* 28. Meyers v. Bahte, 46 Wis. 655 j Smith v. New England Bank, 45 Conn. Nash V. MiteheU, 71 N. Y. 199 ; Vos- 416. burgh V. Brown, 66 Barb. (N. T.) 26. Nash v. Mitchell, 71 N. T. 199 ; 421 ; Heller v. Eosselle, 13 N. Y. 631 ; Smith v. New England Bank, 45 Haight V. MeVeagh, 69 111. 624. Conn. 416; Magruder T. Buck, 56 24. Westphal v. Henney, 49' la. 542. Miss. 314. 25. RockweU v. Clark, 44 Conn. 534; § 319 HUSBAND AND WIFE. 344 CHAPTER XVIII. SBCnoN 319. Creation of Separate Estate in General. 320. B7 Written Instrument. 331. By Parol Transfer. 32a. Necessity of Schedule. 323. What Constitutes Separate Estate; Property Acquired Prior to Coverture. 324. Property Acquired by Gift, Grant, Devise or Bequest during Coverture. 325. Wife 's Land in General. 326. Eents, Profits and Issues of Separate Estate. 327. Proceeds of Sale of Separate Estate. 328. Property Purchased at Judicial Sale. 329. Property Held by Husband as Trustee for Wife. 330. Personal Property in General. 331. Alimony Granted to Wife. 332. Damages Eecovered by Wife. 333. Proceeds of Insurance Policy on Life or Property of Husband. 334. Goods Bought by Husband on Wife's Credit. 333. Trust Fund in Bastardy Proceedings. 336. Wife's Earnings in General. 337. Principles Applicable. 338. In Separate Business. 339. In Keeping Boarders. 340. Property Purchased vfith Earnings. 341. Effect of Waiver of Marital Eights by Husband. 342. Effect of Husband's Desertion. 343. Actions to Eecover Earnings. 344. Presumptions; As Between Spouses in General. 345. As to Property Standing in Name of Husband. 346. As to Property Standing in the Name of Third Persoiu. 347. As Against Husband's Creditors. 348. Statutory Presumptions. 349. Burden of Proof as Against Creditors of Husband. 350. Questions for Jury as Against Creditors of Husband. 351. Effect of Estoppel in General. 352. To Claim Property as Separate Estate in General. 353. By Deed. 354. By Record. 355. By Fraudulent Eepresentations. 356. By Silence. 357. By Failure to Assert Her Title. 358. By Clothing Husband with Apparent Title or Authority. § 319. Creation of Separate Estate in General. In Louisiana the right of a wife to acquire property in her own name during coverture, and for her separate paraphernal estate, is 345 STATUTOEY SEPARATE ESTATE. § 322 an exception to the general rule established by the statute, and is to be strictly construed.^' Under the Missouri Married Women's Act a wife may take transfers of property as her separate estate without technical words of limitation/* § 320. By Written Instrument. Where a conveyance or other written instrument is needful, the expression must conform to the legislative intent ; and even where the language of the statute is broad enough to dispense with such phrases as " sole and separate use," the wife's only safety consists in having her name used as that of grantee or transferee, instead of the husband's.^" Where it comes to an expression of separate use, under some instrument made on the wife's behalf, an equi- table separate use, rather than a statutory separate use, may be said to have been created ; though authorities style it under some local acts as a statutory separate estate.'" § 321. By Parol Transfer. Where the property is such as can pass without a written trans- fer or conveyance, a gift or sale to the wife, of statutory separate property, may be by parol,'^ although, of course, all proof must consist with the idea that delivery is for her sole and separate use, and not so as to admit the rights of her husband.'* § 322. Necessity of Schedule. The requirement in a few States is that the wife's separate property shall be scheduled or inventoried in order to receive legal protection for her separate benefit. Considering the fallibility of presumptions and of the usual tests, this plan seems worthy of more extensive introduction in the legislation of the various States relative to married women.'' Such provisions are sometimes con- 27. Jordy v. Muir, 51 La. Ann. 55, bama to a married -woman, "to have 25 So. 550. and to hold to the sole and proper use, 28. Judson v. Walker, 155 Mo. 166, benefit, and behoof of her, her heirs 65 8. W. 1083. and assigns forever," vests in her, 29. Pepper v. Lee, 53 Ala. 33 ; under the laws of that State, a statu- Slaughter v. Glenn, 98 IT. S. 242; tory separate estate. Lippincott v. Eobinson v. O'Neal, 56 Ala. 541; Mitchell, 94 XT. S. 767. And see Swain Campbell v. Galbreath, 12 Bush (Ky.), v. Duane, 48 Gal. 358. 459. Under the more sweeping local 31. Tinsley v. Eoll, 2 Met. (Ky.) statutes a conveyance to a married 509. woman need not state that she is to 32. Walton v. Broaddus, 6 Bush kold it to her separate use. Sims v. (Ky.), 328. Bickets, 35 Ind. 181. 33. Price v. Sanchez, 8 Fla. 136; 30. A conveyance of lands in Ala- Humphries v. Harrison, 30 Ark. 79. § 323 HTTSBAWD AND WIFE. 346 strued as mere registry requiremen'ts, not essential as against parties having actual knowledge of the wife's title,' — a husband, for instance, — and only intended to prevent frauds and imposi- tions as to creditors and purchasers/* The mode of acquisition constitutes in such case the actual title to the wife's separate prop- erty ; but, even with this limited application, the schedule regula- tion enables the wife to secure her own interests where the posses- sion of personal property, such as household furniture, is* essentially that of both husband and wife, so long as they dwell together, and fraudulent credit ought not to be permitted on behalf of either spouse. These schedule provisions are based, doubtless, upon the principle that the property in joint possession of husband and wife under his marital control is presumably his. The Oregon statute providing that personal property not regis- tered by the wife shall be prima facie the property of the husband, does not apply to personal property purchased by her during coverture or acquired by gift from her husband.*" Under a similar statute in South Dakota it is held that the failure to register does not prevent her from recovering her property taken by her hus- band, but merely lays on her the burden of proving title affirm- atively.*® The Montana Married Women's Act, providing that a wife's separate property included in the inventory required by the statute dhall be exempt from her husband's debts, applies only to property in the exclusive possession of the husband.*' Such prop- erty must be in his possession at the time lie debt was contracted in order to subject it to his debts.*' § 323. What Constitutes Separate Estate; Property Acquired Prior to Coverture. Our Married Women's Codes fairly correspond in permitting the wife (subject to constitutional limitations) to hold, in her sole and separate right, all the property, real or personal, which she had As to the filing of such a schedule by 35. Noblitt v. Durbin, 41 Ore. 555, the woman prior to her marriage, see 69 P. 685. Berlin v. Cantrell, 33 Ark. 611. 36. Anderson v. Medbery, 16 8. D. 34. Jones v. Jones, 19 la. 236; Sel- 324, 92 N. W. 1089. over V. Commercial Co., 7 Cal. 266. 37. Chan v. Slater, 33 Mont. 155, This registry law, after having called 82 P. 657. for considerable construction in the 38. Webster v. Sherman, 33 Mont, courts, appears to have finally been 448, 84 P. 878. repealed in Iowa. Schmidt v. Holtz, 44 la. 448. 347 STATUTOEY SEPARATE ESTATE. § 324: at the time of marriage/" Gifts made by the husband to the wife prior to coverture and afterwards recognized by him as her sep- arate property are not subject to his marital rights, and must be treated as separate estate.*" A homestead claim, settled and im- proved upon by a woman before marriage, is her separate estate, though not patented till after coverture.''^ Where a woman took land under a deed before coverture, and immediately began her assertion of ownership, a title by adverse possession under the occupancy of the spouses after coverture was held to inure to her separate estate.*^ § 324. Property Acquired by Gift, Grant, Devise or Bequest during Coverture. The wife's separate estate includes property which she has acquired thereafter from any person other than her husband, by gift, grant, devise, or bequest. Keal estate thus held or acquired is regarded, not as land of which the husband enjoys the beneficial use, but as her separate land. Leasehold property may be thus held and enjoyed by the wife. Her personal property, whether in possession or lying in action, is her own, provided the statute description be fulfilled. Where a husband purchases land or personalty with his own money, and conveys or transfers it to his wife, the question be- comes ordinarily one of post-nuptial settlement or gift, with equitable rules such as we shall consider hereafter ; though some- times the Married Women's Act is broad enough in scope to confer the right of separate property acquisition, as such, from a husband, as well as from third persons. If, on either theory, the title vests in the wife, as of her separate right, the proceeds thereof, or the specific re-investment, is the wife's also. Where the huS'band appropriates such proceeds or takes other property in his own name, equity and modern statutes between them may preserve the wife's rights ; she may, in the usual manner, follow her title into the new property, or else regard her trustee as remiss in duty and indebted to her. But if, at any point of this property manage- 39. Vandevoort v. Gould, 36 N. T. 40. Young v. Young (Tenn.), 64 639; Prevot v. Lawrence, 51 N. Y. 8. W. 319. 219 ; Wellman v. Kaiser Inv. Co. 41. Forker v. Henry, 21 Wash. 235, (Mo.), 171 S. W. 370; McKee v. 57 P. 811. Downing, 234 Mo. 115, 124 S. W. 7; 42. Alford Bros. & Whiteside v. Henderson Grocery Co. v. Johnson Wililams, 41 Tex. Civ. 436, 91 S. W. (Tenn.), 207 S. W. 723; Williams v. 636. Lord, 75 Va. 390. § 324 HUSBAMD AND WIFE. 348- ment, it be said that the husband appropriated to himself with his wife's assent, then the beneficial, as well as legal, title vests in him. Here, and in laying down the presumption generally as between husband and wife, is a fruitful source of legal embarrassment and uncertainty, as Married Women's Acts stand at the present day. The husband's opportunities are ample ; for no third party, as in a trust settlement, stands between these spouses, so closely united^ to preserve the property and the evidence of title to the true owner. ITor are States agreed in the course to pursue, since the policy of some is to emancipate woman from property restraints altogether, while others grudge the change as tending to strip husbands of their matrimonial rights; one regards the woman's right to her own acquisitions as properly the rule, another as properly the exception. Under most Married Women's Acts gifts of real estate from the husband to the wife are her separate estate,** even though he pays taxes and interest on the mortgage,** and even though the gift was from their community property, if he is free from debt at the time.*' The wife's separate estate also includes property acquired by use of the proceeds of such gifts,*" and property acquired with the proceeds of gifts from his relatives,*' and property given her by her own relatives,*' as well as transfers of personal property, whether gifts or as payment for her money or property used by him,*" even though made by parol,*" and gifts made by strangers to the wife on the occasion of giving birth to quintuplets.'^ Where a husband, indebted to his wife's father on notes, took one of the notes as her share of the father's estate, it was held that the note so taken was her separate estate.'^ Under the former statute in Texas, providing that the lands owned by the wife at marriage or 43. Hamilton v. Hubbard, 134 CaL 49. Carver v. Carver, 53 Ind. 241; 603, 65 P. 321 (affd., 134 Cal. 603, Kelly v. Kelly, 131 La. 1024, 60 So. 66 P. 860). 671; Mitehell v. Chattanooga Savings 44. Corbett v. Sloan, 52 Wash. 1, Bank, 126 Tenn. 669, 150 S. W. 1141; 99 P. 1025. Cullen v. Bisbee, 168 Cal. 69'5, 144 P. 45. Bank of Orofino v. Wellman, 26 968; Baker v. Hedrich, 85 Md. 645, Ida. 425, 143 P. 1169. 37 A. 363 (savings bank account). 46. Smith v. Weed, 75 Wash. 452, 50. Williford v. Phelan, 120 Ten«. 134 P. 1070. 589, 113 S. W. 365. 47. Marshall Field & Co. v. McPar- 51. Lyon v. Lyon, 24 Ky. Law lane (la.), 84 N. W. 1030. 2100, 72 S. W. 1102. 48. Tanner v. Skinner, 11 Bush 62. HUeman v. HUeman, 85 Ind. 1. (Ky.), 120; Tolley v. Wilson (Tenn.), 47 S. W. 156. 349 STATTJTOEY SEPARATE ESTATE. § 325 afterwards acquired shall be her separate estate, it was held that her interest in a land certificate issued to heirs of her former husband remained her separate estate, and that a subsequent husband took no interest in the certificate.^^ Under the Missouri Married Women's Act money inherited by a wife and received by her husband is her separate estate, unless she consents in writing that he may appropriate it." In Tennessee money inherited by a wife is part of her general estate. "^ § 325. Wife's Land in General. Generally land conveyed to a wife is her separate estate,"' even of community property,"' or an undivided interest in land,"' as well as land conveyed to the wife at the husband's request,"' or by his relatives without his request,®" even though no special words of limitation to her separate use are inserted in the deed,°^ especially (Mo.), 190 S. W. 3; HiU v. Meinhard, 39 Fla. Ill, 21 So. 805 Molloy v. Brower (Tex.), 171 S. W. 1079'; Bird V. Lester (Tex.), 166 S. W. 112; Kin Kaid V. Lee, 54 Tex. Civ. 632, 119 8. W. 342; Emery v. Barfield (Tex.), 183 S. W. 386; Jones v. Jones (Tex.), 146 S. W. 265 ; Pfingsten v. Pfingsten, 164 Wis. 308, 159 N. W. 921. 57. Alferitz v. Arrivillaga, 143 Cal. 646, 77 P. 657. 58. Lapique v. Geantit, 21 Cal. App. 515, 132 P. 78. 59. Butler v. Gosling, 130 CaL 422, 62 P. 596; Bauer's Law & Collection Co. V. Berthiaume, 21 Cal. App. 670, 133 P. 596 ; Leust v. Staffan, 14 App. D. C. 200; Kent v. Tallent (Okla.), 183 P. 422; Ferguson v. Booth, 128 Tenn. 259, 160 S. W. 67; McKinney V. McKinney (Tex.), 87 S. W. 217. 60. Anderson v. Casey-Swasey Co. (Tex.), 129 S. W. 349'. 61. Harlan v. Harlan, 144 Ky. 817, 139 S. W. 1063 Emery v. Barfield (Tex.), 138 S. W. 419; Emery v. Bar- field (Tex.), 156 S. W. 311; Merriman V. Blalack, 56 Tex. Civ. 594, 121 S. W. 553; Du Perier v. Du Perier, 126 S. W. 10; Jones v. Humphreys, 39 Tex. Civ. 644, 88 S. W. 403; Thorpe v. Sampson, 84 P. 63; Drake v. David- son, 28 Tex. Civ. 184, 66 S. W. 889; Hankins v. Columbia Trust Co., 142 Ky. 206, 134 S. W. 498. 53. Laufer v. Powell, 30 Tex. Civ. 604, 71 S. W. 604. 54. Columbia Sav. Bank v. Winn, 132 Mo. 80, 33 S. W. 457. 55. Sanford v. Allen (Tenn.), 42 S. W. 183. 56. Montague v. Buchanan (Tenn.), 311 S. W. 211; Johnson v. Johnson (Tex.), 207 8. W. 202; O'Connor v. Vineyard, 91 Tex. 488, 44 S. W. 477 ; Martinez v. De Barroso (Tex.), 189 S. W. 740; Harrison v. Mansur-Tib- betts Implement Co., 16 Tex Civ. 630, 41 8. W. 842; Emery v. Barfield (Tex.), 156 S. W. 311; Sharitz v. Moyers, 99 Va. 519, 3 Va. Sup. Ct. R. 359, 39 8. E. 166; Bobinson v. Neill, 34 W. Va. 128, 11 8. E. 999 ; Cropper V. Bowles, 150 Ky. 393, 150 S. W. 380; Kelley v. Grundy, 20 Ky. Law, 1081, 45 8. W. 100; Pearll v. Pearll Advertising Co., 17 Det. Leg. N. 543, 127 N. W. 264; Turner v. Shaw, 96 Mo. 22, 8 8. W. 897, 9 Am. St. B. 31ff; Stark v. Kirchgraber, 186 Mo. 633, 85 8. W. 868, 105 Am. St. B. 629 ; Scruggs v. Mayberry, 135 Tenn. 586, 188 8. W. 207; Bamum v. Le Master, 110 Tenn. 638, 75 8. W. 1045, 69 L. B. A. 353; Johnson v. Johnson (Tex.), 205 S. W. 202; Kahn v. Kahn, 94 Tex. 114, 58 S. W. 825; CardweU v. Perry, 82 Ky. 129, 6 Ky. Law, 97; Emery v. Barfield (Tex.), 183 8. W. 386; Wilson v. McDaniel § 325 HUSBAND AND WIFE. 350' where the land is purchased with the wife's funds,'^ and even- where the husband gives his note for deferred payments, if the wife agrees to pay the note/' and even where payments were made hy the husband's cheeks, if she had given him the money to make them.'* The same is true where, after taking title, he disclaims title in himself and refers to it as her property.*' The fact that the husband has fenced and otherwise improved the land does not change its character as a separate estate.*" Under the Married Women's Acts in California, New Mexico, Wesit Virginia and Wisconsin, all rights in land conveyed to a wife are her separate estate.*^ In Louisiana property so conveyed or transferred to the wife is paraphernal.*" In the District of Columbia real estate conveyed to a wife in fee simple absolute, free from the control of her husband, becomes hers in equity as though she was unmarried^ and she may convey, devise or otherwise dispose of as though sole.** Under the Tennessee statute there is no presumption that a wife's property is her separate rather than her general estate, but rather the contrary.'* In Vermont a wife's land is not her separate estate unless it is made so by some provision in the instrument or decree creating the estate.'^ Under the Washington Married 62. United States Fidelity & Guar- App. 426, 107 P. 568; Mitchell v. anty Co. v. Lee, 58 Wash. 16, 107 P. Moses, 16 Cal. App. 594, 117 P. 685; 870; Green v. Forney, 134 la. 316, Holmes v. Holmes, 37 Cal. App. 546, 111 N. W. 976; Ligon v. Wharton 150 P. 793; Eekins v. Dieterle, 5 Cal. (Tex.), 120 S. W. 930; Johnson v. App. 690, 91 P. 173; Bekins v. Die- Johnson (Tex.), 207 S. W. 203; terle, 5 Cal. App. 690, 91 P. 173; O'Farrell v. O'Parrell, 56 Tex. Civ. Oldershaw v. Matteson & Williamson 51, 119 S. W. 899; Clark v. Baker, Mfg. Co., 19 Cal. App. 179; 125 P. 76 Wash. 110, 135 P. 1025; Nilson v. 263; Miera v. Miera (N. M.), 181 Sarment, 153 Cal. 524 96 P. 315. P. 583 ; Smith v. New Huntington 63. Amend v. Jahns (Tex.), 184 General Hospital (W. Va.), 99 S. E. S. W. 739. 461; Citizens' Loan & Trust Co. v. 64. Conron v. Cauchols, 243 F. 909, Witte, 116 Wis. 60, 93 N. W. 443. 155 C. C. A. 497. 68. Dupre v. Jenkins, 53 La. Ann. 65. Black v. Black, 64 Kan. 689, 1819, 38 So. 321. 68 P. 662. 69. Leust v. StafEan, 14 App. D. C. 66. Donovan v. Olsen, 47 Wash. 441, 200. To the same effect see Travis 92 P. 276. V. Sitz (Tenn.), 185 S. W. 1075. 67. Hitchcock v. Eooney, 171 Cal. 70. City Lumber Co. v. Barnhill, 285, 152 P. 913; Randall v. Washing- 129 Tenn. 676, 168 S. W. 159. ton, 161 Cal. 59, 118 P. 425; Title 71. In re Eooney, 109 F. 601; Ins. & Trust Co. v. Ingersoll, 153 Cal. Seaver v. Lang (Vt.), 104 A. 877; 1, 94 P. 94; Bell v. Wyman, 147 Cal. Dietrich v. Deavitt, 81 Vt. 160, 69 514, 82 P. 39; Hammond v. MeCol- A. 661; Ainger v. Webster (Vt), 82 lough, 159 Cal. 639, 115 P. 216; A. 666; In re Nelson's Will, 70 Vt. Parnum v. Kern Valley Bank, 13 Cal. 130, 39 A. 750. 351 STATUTORY SEPARATE ESTATE. § 326 Women's Act a deed procured by the husband in the name o£ the ■wife creates a separate estate in her where he so conducts himself as to indicate that he makes no claim to the property."" Under the Delaware Married Women's Act a wife cannot claim as her separate estate property acquired directly from her husband.'" § 326. Rents, Profits and Issues of Separate Estate. The natural increase and profits of the wife's statutory separate property, including the progeny of her separate domestic animals and the rents of her separate lands or the crops, are usually to be construed hers and at her disposal during marriage, as well as the property which produced the increase and profits,''* including profits from the sale of live sitock,'° and the profits of her separate business." The same is true of profits from land held by the husband as trustee for the wife and children, where it does not appear that his services were worth more than he was bound to contribute to the support of the family, or more than the cost of his support." If it were rightly held otherwise, this would be on some construction that the wife had, by her acts and conduct, acquiesced in her husband's assumption of the ovimership." In short, all the product and increase of the original property will become the wife's as long as she can follow and identify it," though expenditure of income for authorized family purposes may well be presumed.*" And since the income of her separate fund is hers, property purchased with her savings from interest arising out of her separate funds belongs to her as her separate property.'^ 72. Lanigan v. Miles (Wash.), 172 products of the land occupied by the p. 894. . family, ef. Moreland v. Myall, 14 73. Whiteman v. Whiteman (Del.), Bush (Ky.), 474; Hill v. Chambers, 105 A. 787. 30 Mieh. 432; Williams v. Lord, 75 74. Webster v. Sherman, 33 Mont. Va. 390; Harris v. Van de Vanter, 17 448, 84 P. 878; Sullivan v. Skinner Wash. 489, 50 P. 50. (Tex.), 66 S. W. 680; Carle v. Heller, 75. Blankinship Bros. v. Knox 18 Cal. 577, 123 P. 815; Smith's Exr. (Wash.), 178 P. 629. T. Johns, 154 Ky. 274, 157 S. W. 21; 76. Bourgeois v. Edwards (N. J.), Dollar V. Busha, 124 6a. 531, 52 S. B. 104 A. 447. 615; Featherngill v. Dougherty, 44 77. Brown v. Brown's Adm'r, 30 Ind. App. 452, 89 IST. E. 521; Kelley Ky. Law, 690. v. Grundy, 20 Ky. Law, 1081, 45 S. 78. But see peculiar statute con- W. 100; Martin v. Davis, 30 Pa. strued in Chambers v. Biehardson, 57 Super. 59; Hester v. Stine, 46 Wash. Ala. 85. 469, 90 P. 594 ; Williams v. MeGrade, 79. Holcomb v. Meadville Savings 13 Minn. 46; Hanson v. Millett, 55 Bank, 93 Pa. 338. Me. 184; Gans v. Williams, 62 Ala. 80. See Chambers v. Eichardson, 57 41; Hntehins v. Colby, 43 N. H. 159; Ala. 85. Stout V. Perry, 70 Ind. 501. But as to 81. Merritt v. Lyon, 3 Barb. (N. T.) 110, § 328 HUSBAND AND WIFE. 352 § 327. Proceeds of Sale of Separate Estate. Upon a sale and exchange of the wife's separate, as contrasted with her general, lands, the proceeds belong to the wife,°^ even though the labor of the husband contributes to its production,** as well as the proceeds of a sale of a wife's separate estate gen- erally,'* and property purchased with such proceeds.*' And where her realty, as in partition proceedings, is converted into money, the proceeds stand in lieu of the real estate for her benefit.** Where spouses hold land equally in common, a half of a note taken in payment for the land is the wife's separate estate.*' Property acquired by exchange for the wife's statutory property is presumably her separate property likewise, as where one horse is exchanged for another.** Where spouses occupied land rent free for two years in lieu of $1,000 to which she was entitled from an estate, and where the husband later bought an interest in the land, which he sold and loaned the proceeds on two notes, of which one, for $1,500, was payable to the wife, it was held that the note was her separate estate, where it appeared that the proceeds of the farm, during the free occupation, was equal to the amount of the note.*" Under the Kentucky statute providing that the proceeds of the wife's land shall belong to her unless otherwise provided in the deed or the obligation of the purchaser, it was held that the fact that notes payable to the husband were taken in payment for such land, coupled with a recital in the deed that the consideration had been paid to him, were sufficient to show his title to the notes.** Where a wife acquired separate real estate prior to the Married Women's Act in Missouri, and sold it after the act took effect, the proceeds were held to be her separaite estate.'^ § 328. Property Purchased at Judicial Sale. Title to real estate acquired by the wife as purchaser at a fore- closure sale is her separate property, though her husband has a mortgage on the property junior to that foreclosure,*^ and even 82. Brevard v. Jones, 50 Ala. 221. 87. Isley v. Sellars, 153 N. C. 374, 83. Martin v. Davis, 30 Pa. Super. 69 S. E. 279. 59. 88. Pike v. Baker, 53 111. 163. 84. Carle v. Heller, 18 Cal. 577, 123 89. Harris v. Harris, 31 Ky. Law, P. 815. 930, 104 S. W. 387. 85. Laiming v. Fogler, 16 Ohio Oir. 90. Skeen v. Seroggins, 20 Ky. Law, Ct. 151, 8 O. C. D. 780. 333, 46 S. W. 9. 86. Nissley v. Heisey, 78 Pa. 418; 91. Gordon v. Gordon, 183 Mo. 294, Rice V. Hoffman, 35 Md. 344; Terrell 82 S. W. 11. V. Maupin, 26 Ky. Law, 1203, 83 S. 92. Potter v. Sachs, 45 App. Div. W. 591. 454, 61 N. Y. 8. 426. 353 STATUTOEY SEPARATE ESTATE. § 329 though the land was mortgaged by her husband, where he has parted with his equity of redemption prior to the foreclosure."' Under the Washington Married Women's Act she may buy person- alty at an execution sale and pledge the property to a bank as security for money loaned by it to pay for the property." § 329. Property Held by Husband as Trustee for Wife. The husband, while the marriage relation lasts, may hence become bound as trustee of his wife's statutory separate estate, not only by express appointment, but through implication, as under the equity rule.*° In certain States the husband is specially designated by statute as his wife's trustee,"" — a peculiarity of legislation which is attended with peculiar consequences as to the legal title of such property. And since the opportunities afforded him for mixing up her property with his are very great, in the present raw age of our married women's legislation, we often find her, upon surviving him, a general creditor against his estate, or the claimant of a trust fund, which cannot easily be identified."^ A husband who is trustee under the Connecticut statute of his wife's personalty remains such though he so intermingles her prop- erty with his that its identity is lost."* During the husband's life the legal title to property held under such a trust remains in him, but at his death the trust determines and the legal title vests in the vrife, giving her absolute title."" Unlike the wife's separate estate in equity, the separate property of a married woman under Amer- ican statutes seems sometimes to retain its qualities after her death, so that her administrator often claims it against her surviving husband.^ In the absence of a gift, a husband who, without his 93. Field v. Gooding, 106 Mass. -with regard to it. Williams v. King, 310; dist. Stetson v. O 'Sullivan, 8 43 Conn. 569. Allen (Mass.) 321. The husband may sue, " aa trust-ee 94. Main v. SchoU, 20 Wash. 201, of his wife," to recover rents, income, 54 p_ 1125. and profits of his wife's statutory sep- 95. Walter v. Walter, 48 Mia. 140; arate estate. Bentley v. Simmons, 51 Hall V. Creswell, 46 Ala. 460; Wood Ala. 165. T. Wood, 83 N. T. 575; Patten v. Pat- 97. Martin v. Curd, 1 Bush (Ky.), ten 75 111. 446. 327; Hause v. Gilger, 52 Pa. 412; 96. Sherwood v. Sherwood, 32 Conn. Fowler v. Eice, 31 Ind. 258. 1 • Marsh v. Marsh, 43 Ala. 677. The 98. Conn. Trust & Safe-Deposit Co. personal property of a married wo- v. Security Co., 67 Conn. 438, 35 A. man, which is by the statute vested in 342. the husband as her trustee, is not in 99. Pettus v. Gault, 81 Conn. 415, legal strictness her sole and separate 71 A. 509. estate unless the husband transfers it 1. Leland v. Whitaker, 23 Mich. to the wife or relinquishes his rights 324, § 330 HUSBAND AND WIFE. 354 wife's consent, acquires her separate property, holds it as trustee for 'her.^ Such an act has been said to be a fraud,* but generally it is regarded as a resulting trust.* The rule applies to a tax title bought by him against her property,'' and to any interest acquired by him against her land which he holds jure mariti.' Where such a trust exists the wife may have an accounting.' The rule does not apply where title is conveyed to the spouses jointly and wife has paid but a portion of the consideration,* nor where she regards him as a debtor for the money so used.* A deed by a husband to his wife providing 1lhat neither could dispose of the property in the lifetime of the other, but that he should control and manage it^ has been held to create a trust in favor of the wife's separate estate.^" Where a wife procures her husband to sell her land and receive the proceeds with the intention that he shall immediately reinvest the proceeds in other land, the funds received from the sale do not ipso facto become his property and subject to his debts where all parties understood that the wife intended merely to make a substitution of lands.^^ § 330. Personal Property in General. The wife's personal property is generally her separate estate,^^ even though bought on conditional sale,^* especially where pur- chased by her,^* and especially if it is for use in her business," even though the bill of sale does not expressly limit the conveyance to her separate use,^* and even though she permits the husband to 2. Barber v. Barber, 135 Ga. 226, 9. KegerreiB v. Lutz, 187 Pa. 252, 53 S. E. 1017; Bohannon v. Bohan- 41 A. 26; Sparks v. Taylor, 99 Tex. non's Adm'x, 29 Ky. Law, 143, 92 411, 90 S. W. 485, 6 L. R. A. (N. S.) S. W. 597; "Winn v. Eiley, 151 Mo. 381. 61, 52 S. W. 27, 74 Am. St. E. 517; 10. Scruggs v. Mayberry, 135 Tenn. Smith V. Settle, 128 Mo. App. 379, 586, 188 S. W. 207. 107 S. "W. 430; Farmers' State Bank 11. Aston v. Kindrick, 90 Va. 825, V. Keen (Okla.), 167 P. 207. 20 S. E. 827. 3. MeKee v. Downing, 224 Mo. 115, 12. O 'Brien v. McSherry, 222 Mass. 124 S. W. 7. 147, 109 N. E. 904. 4. Heintz v. Heintz, 56 Tex. Civ. 13. Patterson v. Patterson, 197 Miss. 403, 120 S. W. 941. 112, 83 N. E. 364. 5. Simon t. Rood, 129 Mich. 345, 88 14. Reeves v. McNeill, 127 Ala. 175, N. "W. 879, 8 Det. Leg. No. 961. 28 So. 623; Hoover v. Carver (Minn.), 6. Manning v. Kansas & T. Coal 160 N. W. 249. Co., 181 Mo. 359, 81 S. "W. 140. 15. First Nat. Bank v. Hirschko- 7. Stockwell V. Stoekwell's Estate witz, 46 Pla. 588, 35 So. 22; Weakley (Vt.), 105 A. 30 (trust to lumber, v. Woodara, 2 Tenn. Ch. 586. wife's land). 16. Megniar v. Wilson, 9 Ky. Law, 8. Scrogin v. DicMson, (Ind.) 107 195. N. E. 86. 355 STATUTORY SEPAEATE ESTATE. § 332 ■use it/^ and even if tte husband signed t[he deferred payment notes, and even if the receipts were made out to him.^' A married woman, transferring stock after marriage from her maiden to her married name, may retain it as her separate property.^' Notes, bonds, or other evidences of debt) and incorporeal property,^" animate as well an inanimate property, constitute separate estate,^^ as well as money, which of course is personal property,^^ including money derived from a mortgage of separate estate,^* and debts. ^* And so may the equity obtained by having purchased land, paid part of the purchase-money, and taken a bond for title on payment in full.^' Patents taken out in the wife's name for inventions by the husband are her separate property, where she in good faith employs him to devise and perfect the inventions, paying him a salary therefor.^' § 331. Alimony Granted to Wife. In Massachusetts, alimony granted to the wife is not her sep- arate estate.^^ In Wisconsin it is held that a judgment granting a wife a divorce and a specified amount as a division of the prop- erty vests the amount in her as separate estate.^* § 332. Damages Recovered by Wife. Damages recovered by the wife are usually her separate estate.'"* This rule is established by statute in Louisiana.'" Uiider that statute " personal injuries " is held to include injuries to her feelings, resulting from abuse, slander or libel.^^ A husband's 17. Campbell v. Fillmore, 13 Colo. 26. Talcott v. Arnold, 55 N. J. Eq. App. 503, 58 P. 790 (horse and 519, 37 A. 891. wagon). 27. Brown v. 32B Mass. 415, 111 18. Tox V. Tyrone, 104 Miss. 44, 61 N. E. 42. So. 5. 28. Kistler v. Kistler, 141 Wis. 491, 19. Mason v. Fuller, 36 Conn. 160; 134 N. W. 1028. Salisbury v. Spoford, 22 Ida. 393, 126 29. Duffee v. Boston Elevated Ry. P. 400. Co., 191 Mass. 563, 77 N. E. 1036; 20. Clark v. CuUen, 44 S. W. 204; Halm v. Goings, 22 Tex. Civ. 576, 56- Case V. Espenschied, 169 Mo. 215, 69 S. W. 217; Western Union Telegraph S. W. 276, 92 Am. St. R. 633; Selden Co. v. Rowe, 44 Tex. Civ. 84, 98 S. W.. V. Bank, 69 Pa. 424. 228. 21. Cans v. Williams 62 Ala. 41. 30. Martin v. Derenbecker, 116 La. 22. Mitchell v. MiteheU, 35 Miss. 495, 40 So. 849; Robertson v. Town 114. of Jennings, 128 La. 795, 55 So. 375; 23. Sparks v. Taylor, 99 Tex. 411, Hey v. Prime, 197 Mass. 474, 84 N. E.. 9-0 S. W. 485. 141. 24. Hunt V. Eaton, 55 Mieh. 363, 31. Martin v. Derenbecker, 116 La. 21 N. W. 439. 495, 40 So. 849. 25. Prout V. Hoge, 57 Ala. 28. § 333 HUSBAND AND WIFE. 356 release by deed of all interest in land devised to his wife surrenders all claim to damages she may recover for injury to such land.^^ Land damages under eminent domain proceedings may be her statutory separate property/' § 333. Proceeds of Insurance Policy on Life or Property of Husband. Since the wife has an insurable interest in the life of the husband, proceeds of a policy on his life payable to her are her separate estate, if written after the passage of a Married Women's Act,'* but such act cannot take away the husband's rights in a policy written before its enactment.'^ Money derived from an insurance policy on the life of a woman's first husband is part of her separate estate on her second marriage.'" Where a husband takes out a policy of life insurance in favor of his wife which has an endowment feature, she has on the issu- ance of the policy an interest in it which cannot be divested, and she is entitled to the proceeds even though at the expiration of the period of the endowment feature the husband is still alive." Where the statute provides that a judgment of divorce restores to the divorced parties the title to such property as either may have obtained from or through the other during marriage, this covers the wife's interest in a paid-up policy of insurance taken out for her benefit by the husband, where the husband paid the premiums, and she had no equitable interest in the policy.'* Where the parties are divorced before the time arrives for renewing the policy, and where by agreement with the insurer expressed in the form of a rider on the policy it is not in fact renewed, but merely continued for an additional term, and the wife continues to pay the premiums, the policy remains in force." Where a policy of beneficiary insurance is taken out by a hus- band for his wife, who afterwards obtains a divorce from him and continues to pay the premiums on the assurance of the officers of 82. Williford v. Phelan, 120 Tenn. N. W. 182, i9 1,. E. A. (N. S.) 487. 689, 113 S. W. 365. 86. Hughey v. Warner, 124 Tenn. 33. Sharpless v. West Chester, 1 725, 140 S. W. 1058. Grant, 257; State v. Hulick, 33 N. J. 37. Ee Desforges (La.), 64 So. 9S7, 307. 52 L. E. A. (N. S.) 689. 34. Hughey v. Womer, 124 Tenn. 38. Sea v. Conrad, 155 Ky. 51, 159 725, 140 S. W. 1058, 37 L. E. A. (N. S. W. 622, 47 L. E. A. (N. S.) 1074. S.) 582; Judson v. Walker, 155 Mo. 89. Marquet v. Aetna Life Insur- 166, 55 S. W. 1083. ance Co. (Tenn.), 159 S. W. 733, L. 36. BoehmPT v. Kalk (Wis.), 144 E. A. 1915B 749. 357 STATUTOEY SEPAEATE ESTATE. § 334 the society that she will be the beneficiary of the policy in case of his death, sh© is entitled to them although the society had a by-law that policies were not payable to divorced wives as the society is estopped to set up that defence.*" Under the Tennessee statute empowering a wife to bind herself by her contracts made in her separate business as though sole, it was held that money due her on a policy of insurance on her husband's life might, after his death, be subjected to debts con- tracted as a trader, though contracted in his lifetime and while living with him.*^ A woman has an insurable interest in the life of the husband with whom she is living as his wife under a formal but illegal marriage, but her interest is cut off by a decree annulling the mar- riage, and she can recover only the premiums she had paid on the policy.*^ The wife has not an insurable interest in her husband's prop- erty unless she has some contract rights in it or is occupying it, but a widow has an insurable interest by virtue of her dower rights." Where a wife insured property on which the husband had given her a mortgage in fraud of creditors, it was held that the proceeds of the insurance were here separate property, even against such creditors.** § 334. Goods bought by Husband on Wife's Credit. Groods bought by the husband on his wife's credit do not neces- sarily become part of her statutory separate estate apart from her authority or acquiescence.*' And, on the other hand, where one furnishes goods, or contracts to render service, or supplies mate- rials, giving credit to the wife alone, and dealing with her or her agent, the husband will not be liable out of his own property, even though he receive some substantial benefit*' 40. Snyder v. Supreme Ruler P. M. Southwestern Mutual Fire Insurance C, 122 Tenn. 248, 122 S. W. 981, 45 Co. ("W. Va.), 9S S. E. 873, L. R. A. L. R. A. (N. S.) 209. 1918A 789; Louden v. Waddle, 98 Pa. 41. Sam Levy & Co. v. Davis, 125 243. Tenn. 342, 142 S. W. 1118. 44. Murphy v. Nilles, 166 111. 99, 42. Western & S. Life Ins. Co. v. 46 N. E. 772. Webster, 172 Ky. 444, 189 S. W. 429, 45. Wilder v. Abernethy, 54 Ala. L. R. A. 1917B 375. 644; Roberts v. Kelley, 51 Vt. 97. 43. Tyree v. Virginia Ins. Co., 55 46. Happeek v. Hartley, 7 Baxt. W. Va. 63, 46 S. E. 706, 66 L. R. A. (Tenn.) 411. 657, 104 Am St. R. 983 ; Hawkins v. § 336 HUSBAND AND WIFE. 358 § 335. Trust Fund in Bastardy Proceedings. A trust fund to secure the support of a prosecutrix in bastardy proceedings may be lier separate estate under the Wisconsin Mar- ried Women's Act, though her control of it is subject to the conditions of the trust.*' § 336. Wife's Earnings in General. Indeed, the well-settled principle, both at law and equity, is that, in absence of a distinct gift from the hus>band, all the wife's earnings belong to him and not to herself.** But by recent stat- utes, enacted in many of the United States, married women are allowed the benefits of their own labor and services when per- formed, or even contracted to be performed, on their sole and separate account, free from all control or interference of a hus- band,** in the absence of an agreement to the contrary. '"' The English Married Women's Act of 1870, moreover, recognizes the wife's right to her separate earnings.''^ These statutes vary some- what in their terms. Thus, by a Maryland statute, the amount she may so acquire is limited to one thousand dollars over and above her debts. Statutes sometimes discriminate so as to protect simply the wife's earnings derived from labor for another than her husband.'^ Under the Kentucky Married Women's Act her earn- ings under a contract made with her by him as agent of another were held her separate property as against his creditors, though such a contract was to be scrutinized somewhat closely by the oourt.^* Under the ISTebraska Married Women's Act, making the 47. Meyer v. Meyer, 123 Wis. 538, Kelley, 10 Kan. 298 ; Jaaaoy v. Delius, 102 N. W. 52. 65 111. 469; Whitney v. Beckwith, 31 48. Jones v. Eeid, 12 W. Va. 350; Conn. 596. Douglas V. Gausman, 68 111. 170; 50. Briggs v. Sanford, 219 Mass. Kelly V. Drew, 12 Allen (Mass.), 107; 573, 107 N. E. 436. Glaze V. Blake, 56 Ala. 379. 51. Lovell v. Newton, L. E. 4 C. P. 49. De Brauwere v. De Brauwere, D. 7. 203 N. T. 430, 96 N. E. 723, 38 L. E. 52. Hamilton v. Hamilton's Estate, A. (N. S.) 508; Martin v. Davis, 3o 26 Ind. App. 114, 59' N. E. 344; El- Pa. Super. 59; Whiteman v. White- liott v. Atkinson, 45 Ind. App. 290, man (Del.), 105 A. 787. See latest 90 N. E. 779; Booth v. Backus (la.), statutes of New York, Massachusetts, 166 N. W. 695; Turner v. Davenport, Bhode Island, Maryland, Kansas, and 63 N. J. Eq. 288, 49 A. 463; Stevens California. And see Cooper v. Alger, v. Cunningham, 181 N. Y. 454, 74 N. 51 N. H. 172; Fowle v. Tidd, 15 Gray E. 434; Snow v. Cable, 19 Hun (N. (Mass.), 94; Tunks v. Grover, 57 Me. Y.), 280. 586 ; Meriwether v. Smith, 44 Ga. 541 ; 53. Clark v. Meyers, 24 Ky. Law, Berry v. Teel, 12 E. I. 267; Attebury 380, 68 S. W. 853. v. Attebury, 8 Ore. 224; Larimer v. 359 STATUTOET SEPAEATE ESTATE, § 337 earnings of a wife from her services her separate property, the practice of osteopathy has been held within the meaning of the word " services." °* Under the Nevada Married Women's Act an agreement of spouses that she shall have the proceeds of butter, «ggs and poultry raised by her makes such earnings her separate estate/' A judgment for costs is not earnings by a wife within the meaning of that act.°* Under the Pennsylvania Married Women's Act it was held that She might recover wages under a contract with her husband to act as cook in his business, outside family relations." Under the Vermont Married Women's Act the wife's earnings from sources other than her separate business belong to the husband.'* The New Mexico Married Women's Act simply exempts her earnings from his debts, but does not make them her separate estate.'® The savings of a wife from allowances made by her husband and father for their families, and allowed by her husiband to be retained as her own, have been held to be the wages of her own labor, within the Missouri Married Women's Act."" The California statute providing that the " accumula- tions " of a wife living apart from her husband shall be her separate estate has been held to apply to property of her husband put into her possession by him and acquired by her by adverse possession while living separate, the term " accumulation " includ- ing every means of acquirement of property.'^ Under the Married Women's Act in the same State she may contract with him for services to be rendered outside the family relation, and her earn- ings so acquired are her separate property.'^ § 337. Principles Applicable. The presumptions here concerning the wife's title to her earn- ings seem to be much the same as in other separate property pur- porting to belong to her.®* Questions of identity, too, in tracing an investment of earnings, are applicable, as in other cases of 54. Dr. S. S. Stm CoUege & Infirm- 59. Albright v. Albright, 31 N. M. ary v. Morris, 93 Neb. 328, 140 N. 606, 157 P. 662. ■Vf_ 272. ^' Regal Realty & Investment Co. 55. Van Sickle v. Wells, Fargo & v. Gallagher (Mo.), 188 S. "W. 151. •Co. 105 ¥. 16. 61. Union Oil Co. v. Stewart, 158 56. Adams v. Baker, 24 Nev. 375, Cal. 149, 110 P. 313. 55 P. 362. 62. Moore v. Crandall, 205 F. 689, 57. Nuding v. Ulrieh, 169 Pa. 289, 124 C. C. A. 11. 32 Atl. 409. 63. Eaybold v. Eaybold, 30 Pa. 308 ; 58. Monahan v. Monahan, 77 "Vt. Elliott v. Bently, 17 Wis. 591; Laing 133, 59 A. 169, 70 L. E. A. 935. v. Cunningham, 17 la. 510. § 338 HUSBAND AND WIFE. 360 separate property. There is, however, apparently less favor shown, by our courts to the legislativ.e grant of separate earnings, than to that of acquisitions to a wife's separate use from other sources; and still less, as we shall soon see, to statutes extending the wife's right of acquiring earnings to a permission to embark in business on her own account. The presumption is said to be, that a wife's services, rendered even to her own mother on a basis of compensa- tion, were given on the husband's behalf."* And where the pro- ceeds of her earnings have been so mixed up with her husband's property as not to be easily distinguishable, the disposition is to regard the whole as belonging to the husband.'^ The idea, more- over, is not favored, of permitting a wife to forsake the matrimonial domicile, or neglect her household duties, without her husband's consent, for the purpose of acquiring earnings for her separate use, especially if her husband be still legally bound to support her by his own labor.** It may be added that, in general, statutes which authorize married women to hold property acquired by gift, grant,, or purchase, from any person other than the husband, do not carry the wife's earnings by implication.*' But where a statute provides that property acquired by a married woman by her personal services shall be her separate property, and exempt from liability for her husband's debts, money due for her services is protected in the same manner as if the money had been received.** § 338. In Separate Business. A wife's profits in her separate business have been held to be her separate estate, though she employs her insolvent husband in such business as her agent, there being no evidence that he had capital invested in it, or that it was a device to defraud his creditors.** Where a wiie was engaged vsdth her husband in a theatrical per- formance her compensation was held to be her separate labor,^ within the meaning of the Missouri Married Women's Act, and therefore her separate estate.'^" Under the Washington Married 64. Morgan V. Bolles, 36 Conn. 175. v. Aleott, 11 Mich. 470; Baxter v> 65. Quidort v. Pergaux, 3 C. E. Prickett, 27 Ind. 490; Bear v. Hays, Green (N. J.), 472; McCluskey v. 36 111.280. But see Duncan v. Cashin,. Provident Institution, 103 Mass. 300; L. R. 10 C. P. 554. Kelly V. Drew, 12 Allen (Mass.), 107. 68. Whitney v. Beekwith, 31 Conn. 66. Douglas v. Gausman, 68 HI. 596. 170; Mitchell v. Seitz, 94 U. S. 580. 69. Taylor v. Wands, 55 N. J. Eq. 67. Eider v. Hulse, 33 Barb. (N. 491, 37 A. 315, 62 Am. St. E. 818. T.) 2«4; Hoyt v. White, 46 N. H. 45; 70. Macks v. Drew, 86 Mo. App. Merrill v. Smith, 37 Me. 394; Grover 224. 361 STATUTOEY SEPARATE ESTATE. § 340 Women's Act, making the property of a wife acquired by her labor ber separate estate, the property affected is not limited to earnings by manual labor, but includes tbe profits of a mining claim wbich she worked witb another person.'^ § 339. In Keeping Boarders. A wife cannot recover for board furnished to one living in the family of which her husband is the head, in the absence of a con- tract made with her therefor, vnth his consent.''^ If he consents she may recover for if* Under the Minnesota Married Women's Act it was held that a contract by the vsrife of a sheriff with her husband to board the county prisoners for the statutory compensa- tion was valid, and that the money earned thereby was her separate property.'* Money earned keeping boarders in a house purchased by the wife on her own account was held to be the wages of her labor, within the Missouri Married Women's Act making such wages her separate estate.'^ Under the New Jersey Married Women's Act money earned by the wife keeping boarders is not her separate estate unless she conducts a business independently of her husband.'" In Pennsylvania such earnings are not subject to her husband's debts." § 340. Property Ptirchased wath Earnings. Property purchased with the earnings of a wife is her separate -estate in some States,'* as well as, in Iowa, property purchased with her earnings keeping a boarding house with her husband's consent.'* The character of such a separate estate is not affected by the fact that the husband contributes some labor to property so 71. Elliott V. Hawley, 34 "Wash. 76. Mayer v. Kane, 69 N. J. Eq. 585, 76 P. 93, 101 Am. St. R. 1015. 733, 61 A. 374. 72. Kinert v. Kapp, 50 Pa. Super. 77. Martin v. Davis, 30 Pa. Super, ^22; Brown v. Walker, 81 HI. App. 59. 396; In re Shaw's Estate, 201 Mich, 78. Wallace v. Mason, 100 Kj. 560, 574, 167 N. W. 885. 18 Ky. Law, 935, 38 S. W. 887; Pit- 73. Morrison v. Nipple, 39 Pa. man v. Pitman, 23 Ky. Law, 939, 64 Super. 184; In re Lewis' Estate, 156 S. W. 514; Dobbins v. Dexter Horton Pa. 3i37, 27 Atl. 35; Arthur Lehman & Co., 62 Wash. 423, 113 P. 1088; ■& Co. V. Slat, 208 m. App. 39 ; Perry Ingals v. Alexander, 138 Mo. 358, 39 V. Blumenthal, 119 App. Div. 663, 104 S. W. 801 ; Carson v. Carson, 204 Pa. TSr. Y. S. 127. 466, 54 A. 348. 74. Bodkin v. Kerr, 97 Minn. 301, 79. Bhlers v. Blumer, 129 la. 168, 107 N. W. 137. 105 N. W. 406; Green v. Forney, 134 75. Furth v. March, 101 Mo. App. la. 316, 111 N. W. 976. 329, 74 S. W. 147. § 341 HUSBAND AND WIFE. 362 purchased."* It was held otherwise where the husband stayed at home and did the housework while the wife worked away from home.*^ In West Virginia it was held that a wife who invests her earnings from sewing and washing in real estate with her hus- band's consent, taking a deed to herself and improving the prop- erty, does not take it as separate estate, as against his creditors."'' In Utah it is held that the joint earnings of spouses, he by engag- ing in business outside and she by housework, when invested in real estate, are the property of the husband.''^ Under the California Married Women's Act property purchased by a wife with her earn- ings in a business carried on with her husband's consent are her separate property.** Under the Missouri statute real and personal property acquired by a wife by means of her separate labor is her separate property and is not subject to her husband's debts.*" § 341. Effect of Waiver of Marital Rights by Husband. Even on general principles of equity, the husband may, in this country, as in England, create in his wife a separate estate in the proceeds of her own toil; the validity of such a gift, as against creditors, being subject to the same rules which apply to other voluntary conveyances ; ** that is to say, he cannot defeat his exist- ing creditors, but, as to creditors subsequent, may bestow, unless the gift is tainted with a fraudulent design.*' Such a gift on his part, once made, the husband cannot annul, by a subsequent invest- ment of the proceeds in his own name.** So, where a married woman by her industry made money as a basket-maker, thus sup- plying her family with necessaries ; and was in the habit of lend- ing out the surplus money, and collecting it when due, with her husband's knowledge; even a court of law has liberally stretched 80. King V. Wells, 106 la. 649, 77 Vt. 375; Eiehardson v. Merrill, 32 Vt. N. "W. 338. 27 ; Smart v. Comstock, 24 Barb. (N. 81. Scruggs V. Kansas City, Ft. S. T.), 411; Jones v. Raid, 12 W. Va. & M. B. Co., 69 Mo. App. 2.98. 360; Glaze v. Blake, 56 Ala. 379; 82. Bailey v. Gardner, 31 W. Va. 94, Peterson v. Mulford, 36 N. J. L. 5 S. E. 636, 13 Am. St. R. 847. 481. In New Tork, the wife's right 83. Anderson v. Cercone (Utah), to sue even a firm to which her hus- 180 P. 586. band belongs for her labor and ser- 84. Larson \. Larson, 15 Cal. App. vice is maintained, under the statutes. 531, 115 P. 340. Adams v. Curtis, 4 Lans. (N. T.) 164. 85. Crump v. Walkup, 246 Mo. 266, 87. See Postnuptal Settlements, 151 S. "W. 709. where the variations of these rules 88. Pinkston v. McLemore, 31 Ala. are noted. 308; Neuf villa v. Thompson, 3 Edw. 88. Rivers v. Carleton, 50 Ala. 40. Ch. (N. Y.) 92; Barron v. Barron, 24 363 STATTJTOEY SEPARATE ESTATE. § 343 its authority to protect her acts, on the ground of an implied agency from her husband/^ And with the assent of all concerned, the wife has been allowed to recover compensation for her special services in taking special care of the husband's own father, who lives in the family."" In Michigan it has been held that a consent by the husband that his wife might keep boarders if she wished and have whatever she earned covered only earnings from services, and not board and lodging.®^ Under the Washington Married Women's Act, making the earnings of a wife while living with her husband community property, a mere general agreement of the spouses shall be her separate estate is insufficient to make them such, where the agreement has no reference to any particular business or employment.®^ § 342. Effect of Husband's Desertion. There are statutes in England and parts of this country which give to the wife the fruits of her lawful industry, where she is deserted by her husband, or even where he grossly neglects to pro- vide for the support of his family ; and here the husband's consent to her sole employment being no element in the case, she is fairly entitled to hold the property thus acquired against all but her own creditors.'* Even were the statute equivocally expressed, pre- sumptions of the husband's title might properly change; for besides the absence of dissent on his part, or the possible inference of an agency, we are to regard the fact that the husband is at fault, while the wife, on her part, so far from neglecting matrimonial duties or forsaking the common abode, does rather what necessity compels her to do, and therefore ought fairly to have legal protec- tion while she remains a wife. The husband's mere absence from home, his conduct not amounting to desertion, does not, of course, afford her, of itself, such a separate privilege, unless the statute is explicit.'* § 343. Actions to Recover Earnings. The husband, under some of the late enactments providing for the wife's separate earnings, is delbarred from suing with or with- 89. White v. Oeland, 12 Eich. (S. 93. Mason v. Mitchell, 3 Hurl. & C.) 308. Colt. 538; Black v. Tricker, SET Pa. 90. Mason v. Dunbar, 43 Mich. 407. 13; Berry v. Teel, 12 E. I. 267; Pur- 91. Brackett's Estate v. Burnham's sell v. Pry, 19 Hun (N. T.), 595. Estate (Mich.), 165 N. W. 665. And see post, Separation, § 1060. 92. Sherlock v. Denny, 28 Wash. 94. See Campbell v. Bowles, 30 170, 68 P. 452. Gratt. (Va.) 652. § 344 HUSBAND AND WIFE, 364 out his wife.*^ Yet, as the wife's right depends upon her intention to exercise it, the rule is still that the husband may maintain his common-law action in his own name for his wife's earnings, if they live together and are mutually engaged in providing for the support of their family, and there is nothing to show an intention on the wife's part to separate her earnings from those of her husband.'" § 344. Presumptions; As Between Spouses in General. We must here bear in mind that the Married Women's Acts have reference, not to the wife's property in the mass, but to prop- erty suitably acquired by her in certain instances by way of excep- tion to the old rule of coverture. Broad, therefore, as they may often appear, these statutes are considerably restrained by judicial construction and the application of presumptions. In some States the presumption is still, in absence of suitable words or circumstances manifesting an intent on the part of those interested to claim tiie benefits of the statute, that a married woman's prop- erty belongs to her husband as at the common law ; and his posses- sion of the property, undisputed and unexplained, or even a visible possession thereof in connection with his wife, gives him the marital dominion.®' In Pennsylvania the courts were at first disposed to rule otherwise, but they, too, finally settled upon the same presumption.®* On the other hand, the New York courts approve the new system to its widest extent ; and it would appear that married women in that State are well-nigh emancipated alto- gether from marital restraints, so far as concerns their property, while the husband's own rights therein are exceedingly precari- ous.®" To ascertain as a fact whether the ovpnership be in wife or 95. Cooper v. Alger, 51 N. H. 172 ; sumptively his. Moreland v. Myall, Tunis V. Grover, 57 Me. 586. 14 Bush (Ky.), 474. But ef. Hill v. 96. Birkbeek v. Aokroyd, 74 N. T. Chambers, 30 Mich. 422. 356. 98. Cf. Camber v. Camber, 18 Pa. 97. Eldridge v. Preble, 34 Me. 148 ; 363 ; Winter v. Walter, 37 Pa. 157 ; Smith V. Henry, 35 Miss. 369; Alver- Bear's Adm'r v. Bear, 33 Pa. 525; son V. Jones, 10 Cal. ff; Tarrell V.Pat- Gault v. SaflSn, 44 Pa. 307; with terson, 43 lU. 52; Reeves v. Webster, Goodyear v. Eumbaugh, 13 Pa. 480. 71 HI. 307 ; Stanton v. Kirsch, 6 Wis. And see Curry v. Bott, 53 Pa. 400. 338; Smith v. Hewett, 13 la. 94: Under the law of Tennessee, direct Contra, Johnson v. Eunyan, 21 Ind. gifts to the wife enure to the hus- 115; Stewart v. Ball, 33 Mo. 154. band, unless the separate estate in- While a husband and wife both live tention is clearly expressed. Ewing oa her land held as general estate, v. Helm, 2 Tenn. Ch. 368. the possession of the products is pre- 99. Peters v. Fowler, 41 Barb. (N. 365 STATUTOKY SEPAKATE ESTATE. § 344: husband, evidence of how the matter was understood and treated between the spouses may be quite esijential/ for a sort of joint possession on their part is often the practical situation of the case. As the rule is usually expounded, presumptions bear heavily against the wife in contests of title, but more especially where the rights of a husband's creditors are affected by the decision. " Be- tween strangers," it is observed in a Pennsylvania case, " open, visible, notorious, and exclusive possession is the test of title in all cases where the rights of creditors are involved. But this is not possible with reference to the personal goods of a married woman. She cannot have or use her property exclusively, imless she lives apart from her husband. It was not the intention of the legisla- ture to compel a separation in order to save the wife's rights ; but if the rule of exclusive possession were adopted, the statute would be inoperative as long as they live together. But this shows how necessary it is to demand the clearest proof of the wife's original right." ^ In Missouri property acquired by a wife during coverture was formerly presumed to have been paid for by the husband,' but the presumption was of little weight,* and has been abolished by statute.' In other States there is no such presumption,' especially where a debt is not in existence at the time when land is conveyed to the debtor's wife.' There is now no presumption that chattels found in the joint possession of spouses belong to the husband.* A spouse's possession of notes payable to him or her is usually sufficient to raise a presumption of separate ownership,' as is the fact that a grocery store was conducted and the bank account kept in the name of the spouse claiming it as separate estate,^" and the T.) 467; Knapp v. Smith, 27 N. T. 4. Eegal Realty & Investment Co. 277. V. Gallagher (Mo.), 188 S. W. 151. 1. Hill V. Chambers, 30 Mieh. 422. 5. Aeby v. Aeby (Mo.), 192 S. W. In this State the obvious inclination 97. is to determine, not by presumptions 6. Farmers' State Bank v. Keen, or inferences, but upon the facts. Jft. (Okla.), 167 P. 207; Southern State* 2. Gamber v. Gamber, 18 Pa. 363. Phosphate & Fertilizer Co. v. Weekley,. And see Kenney v. Good, 21 Pa. 349. 107 S. 0. 510, 93 S. E. 190. 3. Smelser v. Meier (Mo.), 196 S. 7. Jones v. Nolen, 133 Ala. 567, 31 W. 22; Gruner v. Scholz, 154 Mo. So. 945. 415 55 S. W. 441; Halstead v. Mus- 8. Booknau v. Clark, 58 Neb. 610, tion, leeMo. 488, 66 S. W. 258; 79 N. W. 159'. Eyan v. Bradbury, 89 Mo. App. 665; 9. Bibber-White Co. v. White River Clark V. Clark, 21 Tex Civ. 371, 51 S. Valley Electric R. Co., 175 F. 470. W 337; Harr v. Shaffer, 52 W. Va. 10. Johnson v. Johnson's Adm'x, 207, 43 S. E. S9. 134 Ky. 263, 120 S. W. 303. § 345 HUSBAND AND WIFE. 366 fact that a bank account stands in the name of such spouse.^^ A3 between the parties, hay raised by the husband on the wife's land prima facie belongs to her separate estate.^^ Tbe wife's earnings acquired in giving board in the housdiold are presumed to belong to th« husband.^^ In Michigan it is held that a check given for realty conveyed by spouses and payable to her is presumed to be her separate estate.^* § 345. As to Property Standing in Name of Husband. Land or other property bought by the husband with his wife's money, but in his own name, and without any agreement that the purchase shall be to her separate use, or the title taken in her name, will not, as a rule, be treated as her separate property." If certain property be purchased in part from her own fvmds, and in part from her husband's, whatever the form of the investment, her title extends only to the amount of her investment.^' On the other hand, where the husband has kept his wife's funds distinct from his, though changing investments from time to time, and preserved the ear-marks so to speak, her right to claim the property from his estate, upon surviving him, has been strongly asserted.^' Where by the form of his transaction, as in making out a bill of sale, the title evidently stands in her, her legal right must be respected, even though some partial consideration passed from him.^* And where there has been no waiver or fault on the wife's part, her title to her statutory separate property will in every instance be protected to the full extent of her interest." The doctrine of merger, operating to the wife's disadvantage be- cause of her husband's acts, is not favored by our legislation."" 11. Madgeburg v. Dry Dock Sav- Maine statutes, property conveyed to ings Institution, 147 App. Div. 652, a married woman, but wholly or part- 132 N. Y. S. 655. ly paid for by her husband, may be 12. Webster v. Sherman, 33 Mont, reached by the husband's creditors to 448, 84 P. 878; Foreman v. Citizen's the extent of his interest. Call v. State Bank, 128 la. 661, 105 N. W. Perkins, 65 Me. 439. 163; Sharp, v. Wood, 21 Ky. Law, 17. Fowler v. Rice, 31 Ind. 538; 189, 51 S. W. 15. Richardson v. Merrill, 32 Vt. 27. 13. Cory v. Cook, 24 E. I. 421, 53 A. 18. McCowan v. Donaldson, 128 315. Mass. 169. 14. Hall V. Wortman, 123 Mich. 19. Barron v. Barron, 24 Vt. 375. 304, 82 N. W. 50, 6 Det. Leg. N. 1073. See Holthaus v. Farris, 24 Kan. 784. 15. KidweU v. Kirkpatriek, 70 Mo. 20. Clark v. Tennison, 33 Md. 85. 214. And see generally, Hutching v. Colby, IG. Hopkins v. Carey, 23 Miss. 54; 43 N. H. 159; Kirkpatriek v. Bauford, Worth V. York, 13 Ired. (N. C.) 206 ; 21 Ark. 268 ; Teller v. Bishop, 8 Minn. Haines v. Haines, 54 Dl. 74. Under 226; Iceland y. Whitaker, 23 Mich. 367 BTATUTOEY SEPARATE ESTATE. § 346 So discordant is our married women's legislation, however, that in New York, where presumptions lean strongly to the wife's side, it is held that if household furniture belonging to a wife, and acquired from her father, is, with her consent, taken to the com- mon dwelling, mingled with the husband's furniture, and used therewith for the common household purposes, it does not thereby become her husband's property, but the title remains in her."^ This doctrine, however, is applied as between the wife or her assignee, and the husband himself.^" A wife may have an equi- table right to pursue her funds invested by her hus.band, while, until this right is asserted, the husband retains a legal title of which a bona fide transferee for value may perhaps avail himself by way of a countervailing equity.^^ Even promissory notes taken in the husband's name are open to explanation; and evidence aliunde may show that they belonged to the wife's separate property.^* Subject, perhaps, to equities of bona fide third parties for consideration, without notice of the trust in strong instances, the wife's rights are protected in equity against her husband's misdealings with her fund.^° She may avail herself of the equity doctrine of resulting trusts, where the title to her invested property has been taken, without her concur- rence or default, in his name.^* Eeduction into possession is not favored as formerly, to exclude her rights in her personal prop- erty.^^ Under the Massachusetts Married Women's Act it is now held that the money of the wife does not become that of her husband merely by receiving and possessing it as her agent. ^' § 346. As to Property Standing in the Name of Third Persons. A negotiable instrument executed by or taken in the name of 324; Marsh v. Marsh, 43 Ala. 677; 24. Buck v. Gilson, 37 Vt. 653; Fowler v. Riee, 31 Ind. 258; Pike v. Conrad v. Shomo, 44 Pa. 193; Baker Beker, 53 HI. 163; Vreeland v. Vree- v. Gregory, 28 Ala. 544; Fowler v. land 1 C. E. Green (N. J.), 512; Day- Bice, 31 Ind. 258. ton V. Fisher, 34 Ind. 356. The fact 25. Moulton v. Haley, 57 N. H. 184. that the husband acts as the wife's 26. Postnuptal Settlements. Stat- agent in buying and selling, and in- utes sometimes extend this equitable vesting her money, does not, against right of the wife's. Brooks v. Shel- her consent, transfer her right of ton, 54 Miss. 353; Frielander v. John- property to him. Holcomb v. Mead- son, 2 Woods (U. S.), 675. ville Savings Bank, 92 Pa. 338. 27. Schmidt v. Holtz, 44 la. 446; 21. Fitch V. Eathbun, 61 N. Y. 579. Sumner v. McCray, 60 Mo. 493. 22. n. 28. Duggan v. Wright, 157 Mass. 23. See Holly v. Floumoy, 54 Ala. 228, 32 N. E. 159. 99. § 347 HUSBAND AND WIFE. 368 a trustee of a married woman will be regarded in equity as mani- festing the trust for her benefit.^" § 347. As Against Husband's Creditors. The greatest source of perplexity, in truth, in these Married Women's Acts, arises out of the effort at elimination of the hus- band's control in the wife's statutory property ; for here the safe- guards usual in equitable trusts are wanting. A married woman, in order to preserve her separate property, should keep it distinct from that of her husband ; and especially does the rule hold true in States where presumptions are against her exclusive right. Thus it is held that if a married woman willingly allows what she might have retained as her separate property to be so mixed into a common mass with that of the husband as to be undistinguish- aible, or acquiesces in leaving it so, it must, as to her husband's creditors, be treated as relinquished to him.^° Thus^ if the hus- band should invest the wife's legacy money, or other fund belong- ing to her separately 'by right, upon an understanding with her that the new investment shall stand in her name, his breach of trust and investment in his own name, though it be of land, will confer upon him no right to her prejudice, available to himself or to his creditors and representatives.^"^ As to bona fide third par- ties for value without notice, the assertion of a wife's title as against those who have given credit to a husband in possession requires the nicest discrimination on the part of the court. Prop- erty bought by a husband with money belonging to his wife will in general be presumed to be his own until the contrary is shovra,'^ and even property bought by the husband with money from the wife, which is placed in his hands for such investment in his name and, for his benefit, is liable to seizure for his debts, notwithstand- ing she borrowed the money.^^ His possession and control of the property must, to avail himself or his creditors, be a proprietor's control, and not in any trust capacity for her sole benefit.^* And if a husband holds a legal title to land in trust for his wife or family, his sale and transfer of the proceeds to other land, taken 29. Lewis v. Harris, 4 Met. (Kj.) Davis v. Davis, 43 Ind. 561 ; HuteUns 353. V. Colby, 43 N. H. 159. 30. Glover v. Aleott, 11 Mieh. 470; 32. Moye v. Waters, 51 Ga. 13. Gross V. Eeddy, 45 Pa. 406; Kelly v. 33. Nelson v. Smith, 64 111. 394. Drew, 12 Allen (Mass.), 107; Cham- 34. Nicholas v. Higby, 35 la. 401. bers V. Richardson, 57 Ala. 85; Aliter in Kentucky. Penn v. Toimg, Humes v. Scruggs, 94 U. S. 22. 10 Bush (Ky.), 626. 31. Van Dom v. Leeper, 95 lU. 35 ; 369 STATUTORY SEPARATE ESTATE. ' § 348 without due consent in his own name, will not enable his general creditors to seize and appropriate it for his debts.'" So far is the wife's right to acquire by purchase from third parties favored under our Married Women's Acts, that a convey- ance of land for value to a wife has been upheld against her husband's creditors, even though the person who conveyed it had bought it of her husband, so long as he bought bona fide and for valuable consideration,*" nor can a creditor having notice that property standing in the debtor's name is really that of his wife subject tlie property to his debt.*' Such is the temptation to mak- ing colorable transfers to one's wife in fraud of creditors, that in controversies over title, where the legislation discourages acquisi- tions from the husband, the wife, as against the husband and his creditors and representatives, has been held quite strictly to her proofs of acquisition from a person other than her husband,*' unless, at all events, there are writings which run so as suitably to give her the legal title instead.*' § 348. Statutory Presvimptions. In some States by statute there is a presumption that property standing in the name of either spouse is the separate estate of such spouse.*" Under the California statute a conveyance to spouses jointly is presumed to vest an undivided half in each spouse as separate estate.*^ Under the New Mexico statute property ac- quired by the wife under the Federal Desert Land Act, for which she has received a patent, will be conclusively presumed in favor of the incumbrancer in good faith to be her separate property.*" Under a similar California statute the expression, " incumbrancers in good faith and for a valuable consideration," is defined as mean- ing persons who have taken or purchased a lien or the means of obtaining one, and who have parted with something of value in 35. Shippen's Appeal, 80 Pa. 391; W. 608; Alferitz v. Arrivillaga, 143 Porter v. Caspar, 54 Miss. 359; Mc- Cal. 646, 77 P. 657; Peiser v. Brad- Connell v. Martin, 52 Ind. 434. bury, 138 Cal. 570, 73 P. 165; Cohu 3G. Evans v. Nealis, 69 Ind. 148. v. Smith (Cal.), 174 P. 682; Hale v. 37. Haywardv. Cain, 110 Mass. 273; Kennedy (Cal.), 183 P. 723; Stock- Eeaves t. Meredeth, 120 Ga. 727, 48 well v. Stookwell's Estate (Vt.), 105 S. E. 199, 123 Ga. 444, 51 S. E. 391. A. 30. 38. See Beeves v. Webster, 71 111. 41. Gilmour v. North Pasadena 307; Johnson v. Johnson, 72 111. 489. Land & Water Co. (Cal.), 171 P. 39. Lyon v. Green Bay E., 42 Wis. 1066. j^g 42. Luldns v. Traylor (N. M.), 160 40. Emerson-Brantingham Imple- P. 349; State Nat. Bank v. Traylor ment Co. v. Brothers (Tex.), 194 S. (N. M.), 159 P. 1006. 24 § 350 HUSBAND AND WIFE. 370 consideration thereof, the payment of money or parting with something of value being essential.*' § 349. Burden of Proof as Against Creditors of Husband. As against the creditors of the husband, the burden is on the wife, if the property sought to be subjected to the debt is claimed to be her separate estate, to prove the fact ** by clear, *^ convinc- ing,*® strong and unequivocal evidence,*' sufficient to repel all adverse presumptions, but she is not required to show the fact beyond a reasonable doubt.** The rule applies whether the apparent title is in the claimant,*' or in the joint names of the spouses.^" § 350. Questions for Jury as Against Creditors of Husband. As between creditors of a spouse and the other spouse who claims property seized by the creditor as separate estate, it is the province of the jury to determine the credibility of witnesses, ""^ and the question whether the property belong to the debtor or not,"* even where the property claimed by the other spouse is produce 43. Fulkerson v. StUes, 156 Cal. 703, 105 P. 966. 44. Davis v. Green, 123 Cal. 364, o5 Pae. 9; Jolly v. McCoy (Cal.), 173 P. 618; Knight v. Kaufman, 105 La. 35, 39' So. 711; Wayne County & Home Sav. Bank v. Smith (Mieh.), 160 N. W. 472 ; Fleming v. Dalton, 201 Mich. 294, 167 N. W. 893 ; Bartlett v. Smith, I Neb. (Unof.) 328, 95 N. W. 661; Heiges v. Pifer, 224 Pa. 628, 73 A. 950; Hunter v. Baxter, 210 Pa. 72, 59 A. 429; Eavenson v. Pownall, 183 Pa. 587, 38 A. 470; Quigley v. Swank, II Pa. Super. 602; Ferguson v. Dodd (Tex.), 183 S. W. 391; Erfurth v. Erfurth, 90 Wash. 521, 156 P. 523; Patterson v. Bowes, 78 Wash. 476, 139 P. 225; Eberhardt v. Wahl's Adm'r, 124 Ky. 223, 98 S. W. 994, 30 Ky. Law, 413; BichaTds v. Parsons, 7 Ohio App. 422. 45. Bennett v. Bennett, 83 Ore. 326, 163 P. 814; In re Ehinesmith'g Case, 25 Pa. Super. 300. 46. Kanawha Valley Bank v. Atkin- son, 32 W. Va. 203, 9 S. E. 175, 25 Am. St. R. 806; Oldershaw v. Matte- son & Williamson Mfg. Co., 1!/ Cal. App. 179, 125 P. 263. 47. Pederson v. Nixon (111.), 120 N. E. 323. 48. Hilton v. Liebig Mfg. Co., 59 Pa. Super. 460. 49. Plath V. Mullins, 87 Wash. 403, 151 P. 811; Keith v. Aubrey (Tex.), 127 S. W. 378. 60. Hord V. Owens, 20 Tex. Civ. 21, 48 S. W. 200; Sharp v. Fitzhugh, 75 Ark. 562, 88 S. W. 929. 51. Goppelt V. Burgess, 132 Mich. 28, 93 N. W. 497, 9 Det. Leg. N. 491. 52. Patterson v. Gilliland (Ala.), 82 So. 493; Goldriek v. Lacombe (Mass.), 131 N. E. 67; Parsons t. Kimmel (Mieh.), 173 N. W. 539; Caldwell v. Sisson, 150 Mo. App. 547, 131 S. W. 140; Bromley v. Miles, 51 App. Div. 95, 64 N. T. 8. 353 ; Heiges V. Pifer, 334 Pa. 628, 73 A. 950; Haw- ley V. Bond, 20 S. D. 215, 105 N. W. 464; Amend v. Jahns (Tex.), 184 S. W. 729; ChaJk v. Daggett (Tex.), 204 S. W. 1057 J Gambrel v. Hines, 170 Mo. App. 560, 167 S. W. 119; Kroll V. Moritz, 112 Minn. 270, 127 N. W. 1120. 371 STATUTORY SEPARATE ESTATE. § 351 raised on a farm which the debtor spouse conveyed in fraud of «reditors.°^ § 351. Effect of Estoppel in General. Where the statute does not permit the wife to bind herself by a contract, she cannot be bound by an estoppel except for fraud.°* To raise an estoppel against a wife by reason of fraud, she must actively participate in it or reap its fruits."^ The doctrine of estoppel may be invoked against a wife where public rights are involved.'^" Where she has power to contract, a wife may bind herself by an estoppel." Under Married Women's Acts a wife is estopped by averments in her pleadings as are other persons.^* She is not estopped to question the title of her husband's landlord,^* nor by an agreement authorizing commissioners in partition to make a sale.°° She may be estopped to deny the validity of a contract under which she has received benefits without offering to return the amounts received."^ Under the Missouri Married 53. Hoover v. Carver (Minn.), 160 N. "W. 249. 54. City of Indianapolis v. Patter- son, 112 Ind. 344, 14 N. E. 551; Se- l)rell V. Hughes, 72 Ind. 186 ; Syck 7. HeUier, 140 Ky. 388, 131 S. W. 30; Lewis V. Barnes, 272 Mo. 377, 199 S. W. 212; Sherwin v. Sternberg (N. J.), 74 A. 510; Parker v. Schrimaher (Tex.). 172 S. W. 165. 55. Pool V. Stephenson, 146 Ky. 784, 143 S. W. 419 ; Floyd v. Mackey, 112 Ky. 646, 23 Ky. Law, 2030, 66 S. W. 518; Henry v. Sneed, 99 Mo. 407, 12 S. W. 663, 17 Am. St. E. 580 ; Bieh v. Moriaey, 149 N. C. 37, 47, 62 S. E. 762; Stewart v. Conrad's Adm'r, 100 Va. 128, 4 Va. Sup. Ct. R. 49, 4 S. E. 624; Yock v. Mann, 57 W. Va. 187, 49 S. E. 1019. 56. Town of Johnson City v. Wolfe, 103 Tenn. 227, 52 S. "W. 991. 57. Lewis v. Stanley, 148 Ind. 351, 45 N. E. 693; Morgan v. Hoadley, 156 Ind. 320, 59 N. E. 935; Brusha V. Board of Education of Oklahoma City, 41 Okla. 595, 139 P. 298; Wil- liamson V. Jones, 43 W. Va. 562, 27 S. E. 411, 64 Am. St. B. 891, 38 L. K. A. 694; Hart v. Church, 126 Gal. 471, 58 P. 910; Wilkins v. Lewis (Pla.), 82 Sp. 762; Woods v. Soucy, 184 111. 568, 56 N. E. 1015 ; Taylor v. Griuer, 55 Ind. App. 617, 104 N. B. 607; Townsend v. Woodworth (la.), 169 N. W. 752; Holloway v. Louisville, St. L. & T. Ey. Co., 92 Ky. 244, 13 Ky. Law, 481, 17 S. W. 572; Bull v. Sevier, 88 Ky. 515, 11 Ky. Law, 32, II S. W. 506; Overcast v. Lawrence, 141 Ky. 25, 131 S. W. 1029; Smith v. Sisters of Good Shepherd of Louis- ville, 29 Ky. Law, 912, 96 S. W. 549 ; Boberson v. Goldsmith, 130 La. 255, 57 So. 908; Eauch v. Metz (Mo.), 212 S. W. 357; Stone v. Gilliam Exeh. Bank, 81 Mo. App. 9; Engholm v. Ekrem, 18 N. D. 185, 119 N. W. 35; Monarch Gas Co. v. Boy (W. Va.), 95 S. E. 789; Stapleton v. Poynter, III Ky. 264, 23 Ky. Law, 76, 62 S. W. 730, 98 Am. St. E. 411, 53 L. B. A. 784. 58. Brooks v. Laurent, 98 F, 647, 39 C. C. A. 201. 59. Shew V. Call, 119 N. C. 450, 26 S. E. 33, 56 Am. St. E. 678. 60. Vanderbilt v. Brown, 128 N. C. 498, 39 8. E. 36. 61. Crosby v. Waters, 88 Pa. Super. § 352 HUSBAND AND WIFE. 372' Women's Act a wife is not completely subjected to the doctrine of estoppel in pais."' That statute does not permit her to bind her- self by an estoppel as against her husband.*^ The Indiana statute providing that a wife shall be bound by an estoppel in pais like other persons is prospective. °* Under that statute she is bound by representations as to the contract she proposes to make,*° and by her representation that money secured on a loan was for her sole use, when it was in reality for the use of her husband,"* or that it was for their joint use when it was for his sole use," or that she was a partner with him, and that the loan was for the use of the partnership,"' as well as by her silence while her husiband repre- sented himself the owner of property held by the entirety.** § 352. To Claim Property as Separate Estate in General. As a natural result of the first modern innovations upon the coverture theory, it may be observed that estoppel does not wori: against a married woman so readily as against persons sui juris. A married woman cannot be debarred of rights of separate prop- erty by estoppel in pais/" except for fraud, or conduct equivalent thereto,^^ or when her assertion of title would work a fraud." Parties may be misled to their injury by her statements and yet have no redress." After a conditional judgment in suitable fore- 559; Edwards v. Stacey, 113 Tenn. 70. Bemis v. Call, 10 Allen (Mass.), 257, 82 S. W. 470, 106 Am. St. R. 512. But see Anderson v. Armstead, 831. 69 111. 452; Eeed v. Kimsey, 98 111. 62. Blake v. Meadows, 225 Mo. 1, App. 364; Powell v. Bowen (Mo.),, 123 S. W. 868. 214 S. W. 142; Williamson v. Jones,, 63. Tennent v. Union Cent. Life 48 W. Va. 562, 27 S. E. 411, 64 Am. Ins. Co., 133 Mo. App. 345, 112 S. "W. St. E. 891, 38 L. E. A. 694 ; Glaze v. 754. Pullman State Bank, 91 Wash. 187, 64. Wilhitev. Hamriek, 92 Ind. 594; 157 P. 488; Latham v. Latham, 98 Applegate v. Conner, 93 Ind. 185. Ga. 477, 25 S. E. 505. 65. Ward v. Berkshire Life Ins. Co., 71. Williamson v. Gore (Tex.), 73 108 Ind. 301, 9 N. E. 361. S. W. 563; Franklin v. Texas Sav. & 66. TiU V. Collier, 27 Ind. App. 333, Eeal Estate Inv. Ass'n, 119 S. W. 61 N. E. 203. 1166, Gillean v. Witherspoon (Tex.), 67. Lavene v. Jarneeke, 28 Ind. 121 S. W. 909; King v. Driver (Tex.), App. 221, 62 N. E. 510. 160 S. W. 415 ; Waldron v. Harvey, 54 68. Anderson V. Citizen 's Nat. Bank, W. "Va. 608, 46 S. E. 603, 102 Am. 38 Ind. App. 190, 76 N. E. 811. St. E. 959. 69. Government Building & Loan 72. Ayer iir, Lord Tie Co. v. Baker,. Inst. V. Denny, 154 Ind. 261, 55 N. 138 Ky. 494, 128 S. W. 346. E. 757; MeNeeley v. South Penn. Oil 73. Klein v. Caldwell, 91 Pa. 140. Co., 52 W. Va. 616, 44 8. E. 508, 62 L. E. A. 562. 373 STATUTOKY SEPARATE ESTATE. § 353 closure proceedings, a wife cannot show that the mortgage deed was void for want of the husband's assent.''* A wife is not estopped from setting up usury in defence to the same extent as her husband,'^ Estoppel may sometimes be well applied in equity against a married woman to prevent her from relying upon coverture in order to retain the inequitable advantage of a transaction," or for denying her own title.''' And the wife's acts and conduct under suitable circumstances will estop her from denying to others that her husband was her agent in the manage- ment of her property.''* No unauthorized acts of her husband can preclude her from asserting her rights.'" Where a wife rati- fies or authorizes her husbancl's use of her property to pay his deibts, she cannot recover the money from the creditor.*" In Louisiana a wife who makes a nuncupative will by public act reciting that certain property is the separate estate of her husband is not estopped thereby to assert the contrary.*^ Under the Wash- ington statute requiring the administrator of a deceased partner to inventory the partnership property separately, it was held that the wife of such a partner was estopped to claim a partnership interest in her husband's business where in her verified petition for administration she stated that the property was his, and so inventoried it.*' § 353. By Deed. Covenants to a deed of land will not, as a rule, estop her from setting up an after-'acquired title, if the title were defective,** or where the conveyance was void because of coverture.** Nor is she 74. Freison v. Bates College, 128 81. Succession of Muller, 106 La. Mass. 464. 89, 30 So. 333. 75. Campbell v. Babcoek, 27 Wis. 82. In re AUstad 'a Estate, 27 Wash. 512. 175, 67 P. 593. 76. Patterson v. Lawrence, 90 111. 83. Barker v. Circle, 60 Mo. 258; 174; Levy v. Gray, 56 Miss. 318; Morrison v. Balzar, 35 Tex. Civ. 247, Meiley v. Butler, 26 Ohio St. 535. 80 S. W. 248; Be Haven v. Mussel- 77. Norton V.Nichols, 35 Mich. 148; man, 123 Ind. 62, 24 N. E. 171; Nixon V. Halley, 78 HI. 611. French v. McMillion (W. Va.), 91 78. Griffin v. Eansdell, 71 Ind. 440; S. E. 538, L. R. A. 1917D 228; Bums Anderson v. Armatead, 69 111. 452. v. Womble, 131 N. C. 173, 42 S. E. 79. Harle v. Texas Southern Ey. Co., 573 39 Tex Civ. 43, 86 S. W. 1048. 84. Bland v. Windsor & Catheart, 80. Hollingsworth v. HiU, 116 Ala. 187 Mo. 108, 86 8. W. 163; Lazzell v. 184, 22 S. 460; Alford Bros. & White- Keenan (W. Va.), 87 S. E. 80; George side' V. WilUams, 41 Tex. Civ. 436, 91 v. Brandon, 214 Pa. 623, 64 A. 371 ; 8. W. 636; First Nat. Bank v. Mor- Bruce v. Goodbar, 104 Tenn. 638, agne,'l28 Ala. 157, 30 So. 628. 58 S. W. 282. § 353 HUSBAND AND WIFE. 374r estopped to set up an after-acquired title bj covenants in a mort- gage of her husband's land in which she joins.*" It may be other- wise where the wife's claim was in existence when the deed was made. Thus, when a wife joined her husband in a mortgage of land as his, she was held estopped thereafter to set up a homestead title in herself against the mortgagee,*'" or where she joins him in a quitclaim deed reciting that she and he convey all right and title in the property.*' But the present rule, in some States, whose statutes tend to make the married woman essentially a feme sole,. is to create an estoppel against the wife and her subsequent grantees, to the same extent as if she were unmarried, so that an after-acquired title under her warranty will enure to the pur- chaser's benefit.** Where spouses furnished the consideration for a farm in equal shares under an agreement that they should be equal owners, the land remaining in the name of a third person as security for unpaid purchase money, and the third person having given a bond for a deed to a prior purchaser, it was held that the wife was not estopped, as against the husband's creditors, to assert her title, by the fact that when she learned that such bond had been assigned to the husband she merely required his promise that the deed should be made to both, there being no evidence of representations as to the husband's title made to his creditors with her knowledge or consent.** A wife delivering a deed of her separate property to her hus- band which expressed full consideration but did not recite the relationship, and afterward joining him in a mortgage on ihe same property, is estopped, as against the mortgagee who did not know the facts, to assert that the deed was without consideration.®* Where spouses joined in an agreement to sell land, which agree- 85. Bums V. Cooper, 140 F. 273, 72 cumbrance upon it, may be inferred C. C. A. 225; Threefoot v. Hillman, from such facts as knowing on her 130 Ala. 344, 30 S. 513, 89 Am. St. E. part, soon after the deed was re- 39; Barker v. Circle, 60 Mo. 258. corded, that the land had been con- 86. Martin v. Yager, 80 N. D. 577, veyed to her, and claiming to be 153 N. W. 286. owner, so that she cannot afterwards 87. State v. Kemmerer, 15 S. D. deny knowledge of its recitals. Cool- 504, 90 N. W. 150. idge v. Smith, 129 Mass. 554. 88. Knight v. Thayer, 125 Mass. 25; 89. In re Garner, 110 F. 123. King V. Eea, 56 Ind. 1. But see Bar- 90. Osborne v. Cooper, 113 Ala. 405, ier V. Circle, 60 Mo. 258. The wife's 21 So. 320, 59 Am. St. R. 117; Kreps acceptance of a deed with its reserva- v. Kreps, 91 Md. 692, 47 A. 1028. tions, and the assumption of an in- 375 STATUTORY SEPARATE ESTATE. § 354 ment contains an express undertaking by the wife to release statu- tory rights, it was held that she oould not assert, as against the contractee, her prior mortgage on the same land given her by her husband.®^ Where land was devised in trust for spouses and their children, it was held that the wife was not estopped to assert her interest under the will after the husband's death by the fact that she joined him in a deed of his interest in consideration that the grantee should reoonvey the husband's interest to her for life, her interest to cease at her husband's death."^ Where spouses both had life interests in land, it was held that she was estopped after his death to assert her interest as against a mortgagee to whom they jointly conveyed the lot,*' as well as where she caused her land to be deeded to herself and him jointly, and where he mortgaged it to secure a debt contracted after the conveyance.®* Where spouses conveyed land of the wife to one of them on the understanding that it should be reconveyed to the husband, neither spouse understanding the contract, and it was so conveyed, it was held that the wife was not estopped to assert her title as against the husband's creditor who had contracted with him after the conveyance.'" Where a wife conveys her separate estate to her husband for a recited consideration of love and affection, and afterwards joins him in a deed to a third person, being present when the purchase money was paid to him and making no objection, she is estopped to set up a secret lien for money which the husband was to have paid her, though the deed to him was executed on a printed form containing a reservation of lien for the purchase money.*' § 354. By Record. A wife's failure to file a complete inventory of her separate property as required by the Oklahoma statute will not preclude her from claiming it, or give her husband the right to dispose of it.*^ Where she filed a petition in Louisiana that she and certain 91. Cone v. Cone, 118 la. 458, 92 TT. 95. Kre Huot v. Eeeder Bros. Shoe "W. 66i5. Co., 140 Mich. 162, 103 N. W. 569, 92. Jackson v. Jackson, 22 Ky Law, 12 Det. Leg. N. 98. 536 58 S. W. 423, 597. 96. Dewey v. Goodman, 107 Tenn. 93. Simmons v. Reinhardt, 25 Ky. 244, 64 S. W. 45. Law, 1804, 78 S. W. 890. 97. Caylor Lumber Co. v. Mays 94. Tokley v. Superior Drill Co., 26 (Okla.), 174 P. 531; Bagg v. Shoen- Ky. Law, 302, 80 S. W. 1153. felt (Okla.), 176 P. 511. § 356 HUSBAND AND WIFE. 376 co-heirs be put in possession of certain property of their father, she is estopped to assert title to all the property,'* It is otherwise in California, where in a petition for divorce she had alleged that certain property was community property, in which case she may assert her title to the property as against a purchaser from her husband who did not know of the allegation.*' § 355. By Fraudulent Representations. In various recent instances it is held, and justly, too, that where married women make agreements by fraudulent means with refer- ence to their separate property, and thus obtain inequitable advan- tages, a court of chancery vdll hold them estopped from setting up and relying on their coverture to retain the advantage,^ or where they have deliberately lied as an inducement to the consideration.' Joint representations by spouses to a third party that a transfer by the husband to the wife is " no good," and effect a sham, on which representations the husband obtains credit, have been held to estop the wife from asserting her title.* Where a wife made a lease on property standing in her own name, describing herself as the authorized agent of her husband, it was held that she was not estopped from asserting her title as against the notary who took the acknowledgment of the lease, who two years later loans money to the husband on the supposition that he owned the property.* § 356. By Silence. Mere silence or inaction will not preclude a wife from asserting title to real estate,' unless her silence is intentional and deceives some innocent person.® A wife is not estopped to assert her title to property by the fact that her husband makes statements in her presence adverse to those rights, which she does not deny,'' nor by her mere presence at the office where the husband is having papers prepared and executed by him assigning her claim, if she 98. Priestly v. Chapman, 130 La. 4. Laing v. Evans, 64 Neb. 454, 9 480, 58 So. 156. N. W. 246. 99. Coolidge v. Austin, 22 Cal. App. 5. Kinsey v. Feller, 64 N. J. Eq. 334, 134 P. 357. 367, 51 A. 485; Anders v. Eoark, 108 1. Patterson v. Lawrence, 90 111. Ark. 248, 156 S. "W. 1018. 174 ; Coolidge v. Smith, 129 Mass. 554. 6. Harrop v. Nat. Loan & Inv. Co. 2. Bead v. Hall, 57 N. H. 482. . (Tex.), 204 8. W. 878. 3. Thomas v. Butler, 16 Pa. Super. 7. Thomas v. Butler, 24 Pa. Super. 268. 305. 377 STATUTORY SEPARATE ESTATE. § 357 had no knowledge that he claimed to own it, or intended to assign it." § 357. By Failure to Assert her Title. A wife may be barred by laches from aissertaing her title.* Long delay to call a husband to account for her money which with her knowledge he has applied to his own purpose will estop the wife, as against his creditors, from recovering the money,^" but not to other property of the same nature not so applied, as where a hus- band made use of the funds derived from the sale of part of a herd of cattle belonging to the wife.^^ Mere knowledge that her husband has sold her horse to one who has sold it to another will not estop the wife from claiming her property,^" nor is she estopped where she for a long time fails to assert her title, as against her husband's lessee, where no reliance has been placed on her failure to assert her title.^° The fact that a wife took possession of land as her husiband's administratrix and afterwards delivered it to her successor as such, does not estop her from asserting title to the land.^* Where a wife without objection permitted a purchase of the interests of her husband's heirs in his land by a third person, it was held that she was estopped to assert her lien for money paid in satisfaction of a mortgage in which she had joined her husband.*' Where land was conveyed to spouses equally and the husband de- ■vised his interest to his wife, for life, with remainder to their daughters, she being ignorant that she took by survivorship, and supposing that she took under the will, it was held that she was not estopped to assert her title as against persons whom she had advised to purchase the interest of the daughters under the will." A wife is not estopped to maintain replevin for her property by the mere fact that she saw it in the possession of one who obtained it from her husband by a bill of sale." 8. Hoshkowitz v. Sargoy, 125 N. T. 12. Carrieo v. Shepherd, 26 Ind. g 913_ App. 207, 59 N. E. 347. 9. KeUy v. Kelly (Tenn.), 58 S. W. 13. Bolitho v. East, 45 Utah, 181, 870 (30 years' delay). 143 P. 584. 10. Holter v. Wassweiler, 19 Mont. 14. Donehoo v. Johnson, 120 Ala. 169, 47 Pac. 806; Davis v. Yonge, 74 438, 24 So. 888. Ark. 161 85 S. W. 90 (20 years) ; 15. Taylor v. Dawson, 65 111 App. Ives v. Striker, 69 App. Div. 601, 75 232. N. Y. S. 135. ^®- Parkey v. Ramsey, 111 Tenn. 11.' Harris v. Van De Vanter, 17 302, 76 S. W. 812. Wash 489, 50 P. 50; Dance v. Craig- 17. Ingals v. Alexander, 138 Mo. head, 134 La. 6, 63 So. 604. 358, Z9 S. W. 801. § 358 HUSBAND AND WIFE. 378 § 358. By Clothing Husband with Apparent Title or Authority. A wife is also estopped to assert lier title against her husband's creditors where she has placed her property in his name and per- mitted him to obtain credit on the faith of his apparent title/' or knowingly permits him to retain a title to land purchased with her money/* or where her title is fraudulent as to his creditors/" or where the property is kept as a common fund and is used by both/^ or where she permits her property to become indistinguish- ably mixed with his/^ or where, with her knowledge and consent, he deals with her property as his own,^^ even where title is con- veyed to him by mistake,^* where the creditor does not know the facts.^^ She may also permit him to use her land in such fashion 18. Story & Clark Piano Co. t. Kropsch, 231 111. 419, 83 N. E. 190; MoAdow V. Hassard, 58 Kan. 171, 48 P. 846 ; Lamb v. Lamb, 18 App. Div. 250, 46 N. Y. S. 219; In re Trustees of Board of Publication and Sabbath School Work, 22 Misc. 645, 50 N. T. S. 171, 27 Civ. Proe. E. 109; Mager- stadt V. Schaefer, 213 111. 351, 72 N. E. 1063; Riley v. Vaughan, 116 Mo. 169, 22 S. W. 707, 38 Am. St. E. 586; Mertens v. Schlemme, 68 N. J. Eq. 544, 59 A. 808; Beecher v. Wil- son, 84 Va. 813, 6 8. E. 209, 10 Am. St. B. 883; Goldberg v. Parker, 87 Conn. 9«, 87 Atl. 555, 46 L. E. A. (N. S.) 1097; Martin v. Franklin, 160 Ky. 61j 169 S. W. 540; Homaby v. City Nat. Bank (Tenn.), 60 S. W. 160; Sliney v. Davis, 11 Colo. App. 480, 53 P. 686; Pahmeyer v. Meyer (Tenn.), 53 S. W. 982; Eosenbaum v. Davis (Tenn.), 48 S. W. 706; Gold- berg V. Parker, 87 Conn. 99, 87 A. 555, 46 L. E. A. (N. S.) 1097; Eoane V. Hamilton, 101 la. 250, 70 N. W. 181; Hobbs v. Prazier, 61 Pla. 611, 55 So. 848; Buchannon v. James, 135 Ga. 392, 69 S. E. 543 ; Hank v. Van Ingen, 97 HI. App. 642 (aff., 196 Dl. 20, 63 N. E. 705) ; Eiokett v. Bolton, 173 Ky. 739, 191 S. W. 471; David Adler & Sons Clothing Co. v. Hell- man, 55 Neb. 266, 75 N. W. 877; Johnson County v. Taylor, 87 Neb. 487, 127 N. "W. 862; Murphy v. Ganey, 23 Utah 633, 66 P. 190; Con- ron V. Cauchois, 242 F. 909, 155 C. C. A. 497; Eobertson v. Sohlotzhauer, 243 P. 324, 156 C. C. A. 104; Parish V. Beebe (Ariz.), 179 P. 51; Julius Kessler & Co. v. De Garmo (la.), 127 N. W. 988; Holland v. Jones, 48 S. C. 267, 26 S. E. 606 ; Burkitt v. Mbx- ley (Tex.), 206 S. W. 373; Moran v. McDevitt (E. I.), 83 A. 1013. 19. Krueger v. MacDougald (6a.), 96 S. E. 867; Ford v. Blackshear Mfg. Co., 140 Ga. 670, 79' S. E. 576 ; Chaney V. Gauld Co., 28 Ida. 76 152 P. 468; Wilkinson v. Posey, 113 Miss. 274, 74 So. 125; DuneansviUe Bldg. & Loan Ass'n V. Ginter, 24 Pa. Super 42; Hines v. Meador (Tex.), IffS S. W. 1111; Blake v. Meadows, 825 Mo. 1, 123 S. W. 868. 20. Catlett v. Alsop, 99 "Va. 680, 3 Va. Sup. Ct. E. 491, 40 S. E. 34. 21. Steel V. Fitz Henry, 78 111. App. 400; Mclntyre v. Farmers' & Mer- chants' Bank, 115 Mich. 2.55, 73 N. W. 233, 4 Det. Leg. N. 846. 22. In re Gorham, 173 N. C. 272, 91 8. E. 950 ; Kimble v. Wotring, 48 W. Va. 412, 37 S. E. 606. 23. Mitchell v. Smith & Poe, 87 Ark. 486, 111 S. W. 806; Wood v. Tant, 27 Colo. App. 189, 149 P. 854; Arthur Lehman & Co. v. Slat, 208 HI. App. 39'; Farmers' State Bank v. Keen (Okla.), 167 P. 207. 24. Standard Mercantile Co. v. El- lis, 48 W. Va. 309, 37 S. E. 593. 25. Whitchard v. Exchange Nat. 379 STATUTORY SEPAKATE ESTATE. § 358 that she will be estopped to deny his title of the crops." The rule applies to a case where a wife permits the husband to hold himself out as owner of her business or property and obtain credit on the faith of such ownership,^' especially where she clothes him with title to it/* and to a case where she permits him to use her separate personal property as owner and accepts the benefit of his sale.^° and to a case where she permits him to deposit her money in a bank to which he later became indebted.*" Such an estoppel inures to the purchaser at the execution sale.*^ The rule applies only to those dealing directly with the husband and not to those who take his obligation by assignment.*^ This rule does not hold where the only persons to whom the representations were made were the husband's sureties, hence neither spouse is barred to assert her title against general creditors of the husband, to whom no such representations were made,** nor where she is not aware that he has taken title in his own name to property purchased with her money,** nor where a bond for the deed had been for a short time in the husband's name,*' nor where she permits a strip of her land to be used by the tenants of her husband's adjoining land, as against his heir,** nor does the rule operate in favor of the hus- band so as to enable him to rely on conduct by the wife leading him to believe she considered land conveyed to her as community property, where he knew the facts and did not change his position or omit action material to the protection of his interests.*^ The fact that a deed of property to which a wife is entitled was with- Bank, 15 Ga. App. 190, 82 S. E. 770; 29. Smith v. Gott, 51 W. Va. 141, Laing v. Evans, 64 Neb. 454, 9 N. W. 41 S. E. 175. 246. 30. Talley v. Davis (Ark.), 303 S. 26. Sanders v. Standard Warehouse W. 685. Co., 101 S. C. 381, 85 S. E. 900. 31. "Wood v. Tant, 27 Colo. App. 27. Eoberts v. Bodman Petitt Lum- 189, 149 P. 854. ber Co., 84 Ark. 227, 105 S. W. 258; 32. Moore v. Kawlings, 137 la. 284, Haycoek v. Tarver, 107 Ark. 458, 155 114 N. W. 1040. 5 W. 918; Farmers' Oil & Fertilizer 33. Citizens' Bank v. Burrus, 178 Co. V. Hester, 127 Ark. 618, 193 S. Mo. 716, 77 S. W. 748. W 890- McClintoek v. C. E. Skinner 34. McKeehan v. VoUmer-Clearwa- 6 Co., 126 Ark. 591, 191 S. W. 230; ter Co., 30 Ida. 505, 166 P. 356; Mack V. Engel, 165 Mich. 540, 131 N. Mayer v. Kane, 69 N. J. Eq. 733, 61 W 92 • Million v. Commercial Bank A. 374 ; Woolsey v. Henn, 85 App. of'Boo'nviUe, 159 Mo. App. 601, 141 Div. 331, 83 N. T. 8. 394. S W. 453 ■ Kyle v. Huddlestun, 80 35. Carey v. Wimpee, 217 F. 156. W. Va. 439', 92 S. E. 679. 36. Burns v. Parker (Tex.), 137 S. 28. Eioux V. Cronin, 223 Mass. 131, W. 705. 109 N E 898. 37. Bias v. Eeed, 169 Cal. 33, 145 P. 516, § 358 HUSBAND AND WIFE. 380 out her knowledge made to the spouses jointly does not estop her to claim her title even against one who relied on the husband's apparent ownership, even though on learning the facts she took no steps to correct the deed.^' It has been held that a wife was not estopped to assert title to a piano as her separate estate merely because her husband rented it as her agent.^' Where a wife before marriage gives negotiable paper to her husband for col- lection, which he without authority indorses to himself, she is estopped from asserting her title to the notes in the hands of a holder for value if she was informed of the facts before marriage and permitted his retention of the notes, but not if she did not learn the facts till after marriage.*" Where a wife gave her hus- band asignments of insurance policies to a bank to be used as security for present and future loans, and left them there without objection for some years till her husband died, during which time the bank kept the policies alive, it was held that she was estopped, as against the bank, to deny his authority to pledge them.*^ In Louisiana a wife's paraphernal property is not liable for debts con- tracted by the husband where he uses her separate property aa his own in administering it as head of the community.** 38. Simpson v. Biffle, 63 Ark. 289, 41. Dewees v. Osborne, 178 HI. 39, 38 S. W. 345. 52 N. E. 942; Little v. Fearon, 262 89. Bagg V. Shoenfelt (Okla.), 176 Pa, 430, 97 A. 578 (securities). P. 511. 42. Succession t. Sangpiel, 114 l4k. 40. Kempner t. Huddeston, 90 Tex. 767, 38 So. 554. 182, 37 S. W. 1066. 381 STATUTOEY SEP ABATE ESTATE. § 359 CHAPTER XIX. HUSBAND^S POWEES, EIGHTS AND LIABILITIES AS TO WTFE's STATUTOEY SEPAEATE ESTATE. Shction 359. Powers, Statutory Limitation of Husband's Eight to induce Wife's Property to Possession. 360. Statutory Power to Control Separate Estate. 361. Effect of Fraud of Husband. 362. To Dispose of Eeal Eatate. 363. Of Personal Property. 364. To Bind Separate Estate by Mortgage. 365. By Lease. 366. With Liability for His Sole Fraud. 367. By Contract. 368. By Lien. 369. By Eelease. 370. Eights of Purchasers from Husband. 371. Notice to Husband as Notice to Wife. 372. Eights of Husband's Creditors; In General. 373. As to Value of Husband's Services. 374. Effect of Husband's Possession of Separate Estate. 375. Transactions in Fraud of Creditors. 376. As Wife's Agent in General. 377. Scope of Agency in General. 378. Scope of General Agency. 379. Implied Authority as Agent. 380. Power to Bind Wife by Declarations. 381. Evidence of Agency in General. 382. Burden of Proof. 383. Presumptions. 384. Admissibility of Evidence. 385. Estoppel to Deny Agency. 386. Eatiflcation in General. 387. What Constitutes Eatiflcation. 388. Eights to Eecover for Improvements. 389. To Eecover for Services. 390. To Eecover for Advances. 391. Liabilities; For Wife's Money Used for ISecessaries. 392. For Wife's Property Eeceived. 393. To Third Persons. § 359. Powers, Statutory Limitation of Husband's Right to in- duce Wife's Property to Possession. The husband may reduce to possession nia wife's outstanding personals in action ; but out of regard to her statutory rights, the doctrine now becomes of somewhat novel application, and evi- dence of the wife's consent is properly required in many States § 360 HUSBAND AND WIFE. 382^ before tlie Husbaiid's act of appropriation shall be considered complete. For while she may bestow her goods and chattels upon him, under suitable circumstances, he can no longer go to work, as he could at the common law, and make his title complete with- out reference to her wishes.** Under the North Carolina Consti- tution mere possession of the wife's property will not give the husband title.** Under the Ohio Married Women's Act a hus- band has the burden of showing that his wife's property was re- ceived by him with her express consent.*' § 360. Statutory Power to Control Separate Estate. Under the Married Women's Acts in Colorado, Greorgia, lowa^ Michigan and West Virginia, the husband has no control over his wife's property.** The same appears to be true in Kentucky.*^ Under the Florida Married Women's Act the property of the wife remains in the control of the husband,*' but she may terminate that, control at her pleasure.*' In Louisiana a husband may administer his wife's property and appropriate it to his own use in any manner.'" Under the Connecticut Married Women's Act of 1849, applicable when spouses do not take advantage of the act of 1877, the husband was entitled to possession of the wife's personal estate and its income if not held as separate estate.'^ Under the Idaho Married Women's Act the husband has the management and control of the wife's separate estate.'^ He is a statutory agent. His power as such extends to all her separate estate, whether in 43. Vreeland v. Vreeland, 1 C. E. Chamberlain v. Brown, 141 la. 540,. Green (N. J.), 512; King v. Gott- 120 JST. W. 334; Agricultural Ins. Co. schalk, 21 la. 512; Haswell v. Hill, v. Montague, 38 Mich. 548, 31 Am. R. 47 N. H. 407. Under the Missouri 326; Hall v. Hyer, 48 W. Va. 353, 37 Married "Women's Act he can reduce S. E. 594. her choses to possession so as to get 47. McGregor v. Overton's Ex'rs, title only with her written consent. 29 Ky. Law, 1146, 96 S. W. 1114. Gordon v. Gordon, 183 Mo. 294, 82 48. McNeil v. Williams (Pla.), 59 S. W. 11. The same is true where she So. 562. gives him a note indorsed by her with 49. Florida Citrus Exchange v. authority to use it as collateral for a Grisham, 65 Ela. 46, 61 So. 123. particular purpose. Hurt v. Cook, 50. Miltenberger & Co. v. Keys, 25 151 Mo. 416, 52 S. "W. 39'6. La. Ann. 287. 44. Toms V. Flack, 127 N. C. 420, 51. Wagner v. Mutual Life Ins. Co.,: 37 S. E. 471. 88 Conn. 536, 91 A. 1012. 45. Yooum v. Allen, 58 Ohio St. 280, 52. Sencerbox v. First Nat. Bank, 50 N. E. 909. 14 Ida. 95, 93 P. 369; Bates v. Capi- 46. Sharshel v. Smith (Colo.), 181 tal State Bank, 21 Ida. 141, 121 P. P. 541; Chicago Bldg. & Mfg. Co. v. 561. Butler, 139 Ga. 816, 78 S. E. 244; The phrase "management and con- 383 STATUTORY SEPARATE ESTATE. § 361 or out of her possession at marriage. If she has just cause to ap- prehend that he has mismanaged or will mismanage it, she may have a trustee appointed." Under the Texas Married "Women's Act the husband has the sole right to the management and control of the wife's separate estatej^* but cannot convey it without her express consent or ratification,^" nor convert it to his own use,'* nor will his permission validate the appropriation of it by others." His right of management terminates on their permanent separa- tion."' § 361. Effect of Fraud of Husband. Fraud, coercion, abuse of marital confidence, can be alleged by the wife against an unworthy husband in support of her title, whether she transferred absolutely, or as security for his debts.'* A husband has no right to agree secretly with the purchaser of his wife's separate property for a portion of the real consideration, understanding the nominal consideration to the wife ; for this is trol" implies the possession of the thing managed or controlled, or the right to possession thereof. Sencer- box T. First Nat. Bank, 14 Ida. 95, 93 P. 369. 53. Seneerbox v. First Nat. Bank, 14 Ida. 95, 93 P. 36?; Seneerbox v. First Nat. Bank, 14 Ida. 95, 93 P. 369. The power of management and con- trol given a husband as to the wife's money gives him the right to its pos- session, to draw it out of the bank where it is deposited, to reinvest or redeposit it in another bank and to check it out. Seneerbox v. First Nat. Bank, 14 Ida. 9'5, 93 P. 369. 54. Ochoa v. Edwards (Tex.), 189 S. W. 1022; Coleman v. First Nat. Bank, 17 Tex. Civ. 132, 43 S. W. 938; So. Tex. Nat. Bank v. Tex. & L. Lum- ber Co., 30 Tex. Civ. 412, 70 S. W. 768. The phrase ' ' sole management, ' ' in Eev. Stat. Tex. 189'5, art. 2967, providing that during the marriage the husband shall have the ' ' sole man- agement" of all his wife's separate property, implies the power of con- trol and possession, as personalty can- not be managed without the power to control and possession thereof to that end. Bledsoe v. Fitts, 47 Tex. Civ. 578, 105 S. W. 1143. The phrase "during marriage," in Rev. Stat. 1895, art. 2967, providing that "dur- ing marriage" the husband shall have the sole management of all the sep- arate property of his wife, means as long as the marriage relation exists, and at no time during the marriage relation can the wife deprive the hus- band of his right of control and pos- session; he being present in the mar- riage relation. Bledsoe v. Fitts, 47 Tex. Civ. 578, 105 S. W. 1142. 55. Scruggs V. Gage (Tex.), 182 8. W. 696; Givens v. Carter (Tex.), 146 S. W. 623; Ligon v. Wharton (Tex.), 120 S. W. 930; Bledsoe v. Fitts, 47 Tex. Civ. 578, 105 S. W. 1142; Hudspeth v. State, 54 Tex. Cr. 371, 112 S. W. 1069. 56. Heintz v. Heintz, 56 Tex. Civ. 403, 120 S. W. 941. 57. Therriault v. Compere (Tex.), 47 S. W. 750. 58. Dority v. Dority, 30 Tex. Civ. 216, 70 S. W. 338 (affd., 96 Tex. 215, 71 S. W. 950, oO L. E. A. 941.) 59. Sharpe v. McPike, 62 Mo. 300; Darlington's Appeal, 86 Pa. 512. § 363 HUSBAND AND WIFE. 384 a breach of faith as agent or trustee."" In Michigan a husband who acted as agent of his wife in selling her land and taking a mortgage for deferred payments, and then became the assignee of the mortgage, has been treated directly as vendor and mortgagee, as to equities growing out of fraud or deceit on his part in the transaction."^ § 362. To Dispose of Real Estate. A husband cannot sell his wife's separate real estate during her life by his own deed,°^ nor create an easement in her land, perma- nent or otherwise."^ In some States the husband cannot dispose of his life-interest in the wife's lands at all, without the wife's assent.'* § 363. Of Personal Property. A husband cannot dispose of his wife's personal property — her capital especially — at his own discretion."^ A purchase of per- sonal property by a husband with his wife's funds, under an agree- ment to act as her agent, but taking title in his name, vests the title in her."" In North Carolina the wife's executor is entitled to possession of her personalty as against her husband, in the same way as though she were a man."^ Under the Indiana Married Women's Act a husband cannot bind his wife by an investment of her money."' In Louisiana the husband may administer the wife's property as mandatory without formal power of attorney," but cannot transfer her right to a note payable to her nor bring or defend a suit respecting it without her.'" In a credit sale of the wife's paraphernal property, her mortgage attaches only from the date of the receipt of the money and for the amount.''* If 60. Beandry v. Feleh, 47 Cal. 183. v. Moore, 19 Ky. Law, 1534, 43 S. W. 61. Burehard v. Frazer, 23 Mioh. 697 (piano) ; Ago v. Canner, 167 324. Mass. 390, 45 N. E. 754. 62. Prater v. Hoover, 1 Cold. 66. Jones v. Chenault, 124 Ala. 610, (Tenn.) 544. 27 So. 515, 82 Am. St. B. 211. 63. Knoch v. Haizlip, 163 Cal. 146, 67. Eilpatriek v. Kilpatrick (N. C), 124 P. 998; Harrison v. City of 96 S. E. 988. Sulphur Springs (Tex.), 67 S. W. 515 68. Comer v. Hayworth, 30 Ind. (consent to a ditch) ; Neumeister v. App. 144, 96 Am. St. E. 335. Goddard, 125 Wis. 82, 103 N. W. 241. 69 In re Leeds & Co., 49 La. Ann. 64. Coleman v. Satterfield, 2 Head 501, 21 So. 617. (Tenn.), 259; Jenney v. Grey, 5 Ohio 70. Sterling v. Johnson, 5 Mart. N. St. 45. AUter in some States. Cole- 3. (La.) 362. man v. Semmes, 56 Miss. 321. 71. Foster v. Her Husband, 6 lia. 65. O 'Brien v. Foreman, 46 Cal. 80 ; £2 ; Eobillard v. Poydras, 11 La. 279. Klein V. Seibold, 89 HI. 540; De Witt 385 STATITTOEY SEPABATE ESTATE. § 365 she ia separated from him properly she retains the right to re- cover any amount received hy him and converted to his own. use.'" § 364. To Bind Separate Estate by Mortgage. The hushand cannot mortgage his wife's separate property for his individual debt,'* whether such property be land'* or person- alty." In North Carolina a husband cannot mortgage his wife's crops without her joinder in the deed," nor in Florida without her written consent." For it is a general principle that the wife's separate property cannot be made liable for the debts of her hus- band or others without her assent.'* In Louisiana a husband can- not incumber his wife's paraphernal property for his debts, either by mortgage or fictitious sale, to obtain the apparent security of a special mortgage and a vendor's lien.'" A wife is bound by her husband's notes and mortgage of her land under power of attorney from her,*" or by his pledge of her personal property for his own benefit where he has a general agency for her in all matters.*^ Where a wife directed her husband to purchase stock with her separate estate, she was held bound by his pledge of the stock for his own debt after taking title in his own name, where the pledgee had no notice of her rights.*^ In Louisiana a husband cannot mortgage his wife's property in his own name and to secure his debt without special authority.*^ § 365. By Lease. Under the Minnesota Married Women's Act a husband cannot create a leasehold in the wife's land.'* Under the New York 72. Lehman v. Conlon, 105 La. 431, Mason, 4 Greene (la.), 231; Tale v. 29 So. 873. Dederer, 18 N. T. 265; Sharp v. 73. Patterson v. Flanagan, 1 Ala. Wickliffe, 3 Litt. 10; Johnson v. Eun- (S. C.) 427. yon, 21 Ind. 115. 74. Farmer v. American Mortg. Co., 79. Terry v. Gilkeson, 50 La. Ann. 116 Ala. 410', 22 So. 426. 1040, 24 So. 128. 75. Parish v. Austin (Tex.), 76 S. 80. Sav. Bank of San Diego County W. 583; Klein v. Frerichs, 127 Minn. v. Daley, 121 Cal. 199, 53 P. 420; 177, 149 N. W. 2; Knight v. Beckwith Temple v. Harrington (Ore.), 176 P. Commercial Co., 6 Wyo. 500, 46 P. 430. jQg^ 81. Lowy V. Boenert, 110 111. App. 76! Kawlings v. Neal, 122 N. C. 173, 16 (affd., 209 lU. 405, 70 N. E. 901). 29 S E 93. ^'^' -^iderson v. Waco State Bank, 77. Shomaker v. Waters, 59 Fla. 32 Tex. 506, 71 Am. St. K. 867. 414 52 So. 586. 83. Aiken v. Bobinson, 52 La. Ann. 78. Hutchins v. Colby, 43 N. H. 159 ; 925, 27 So. 529. Hatz's Appeal, 40 Pa. 209'; George v. 84. "Van Brunt v. Wallace, 88 Minn. Eansom, 15 Cal. 322; Cheuvete v. .116, 92 N. W. 521. 25 § 367 HUSBAND AND WtFE. 386 Married Women's Act a husband cannot bind his wife by a lease of her land, even where sh« accepts rent under the lease, without her authority.*' In Texas while spouses live together she is bound by his lease of her land, but if they separate she may have hia lease cancelled." § 366. With Liability for His Sole Fraud. In general, if the wife's property is not liable for her hus- band's debts, much less can it be made so for his frauds regarding such property, without her participation.*' § 367. By Contract. A husband has no implied authority to consent to the taking of his wife's land by a railroad,** or to abide by a public survey of her land,** or to bind her by an agreement relating to the maintenance of gates on her land,*" nor where she has by deed conveyed the right to cut timber, by his agreement to extend the time for re- moving it,*^ nor by an agreement which restricts to use of land conveyed to her by an arrangement made by him as her agent^ where the agreement is no part of the deed, though recorded,'* nor by his agreement as to boundaries,** nor to waive the statute of limitations on her mortgage,** or to agree that an overseer em- ployed by him as her agent shall hold his position for a term of years,*' or to bind her by any agreement as to her land.** He can- not of himself bind her estate by employing counsel with reference to it.*' But a husband has a right to employ counsel to set aside a deed of trust in the joint names of the spouses, where their interests are identical, and there is no fraud or misrepresentation.** In Alabama the husband's rights as his wife's managing attorney are declared not to extend to binding her by the submission to 86. Carman v. Vox, 86 Mise. Eep. 92. Kurtz v. Potter, 167 N. T. 586, 197, 149 N. T. S. 213. 60 N. E. 1114 86. Dority v. Dority, 30 Tex. Civ. 93. Leo v. Wheat, 33 Ky. Law, 734, 216, 70 S. W. 338 (affd., 96 Tex. 215, 111 8. W. 307 (reh. den., 112 8. W. 71S. "W. 950, 60 L. E. A. 941). 565). 87. See Lawrence v. Finch, 8 C. E. 94. Bradley v. Bradley's Adm'r, Green (N. J.), 234. 159 Ky. 84, 166 8. W. 773. 88. Hazard Dean Coal Co. v. Ma- 95. Seymour v. Oelrichs, 156 CaL IntoBh (Ky.), 209 8. W. 364. 783, 106 P. 88. 89. Marshall v. Benetti (la.), 118 96. Wilson v. Shocklee, 94 Ark. 301, N. W. 918. 126 8. W. 832. 90. Bard v. Batsell (Ky.), 211 8. 97. Kerchner v. Kempton, 47 Md. W. 185. 568. 91. Harris v. Free, 6 Ala. App. 113, 98. Kennedy v. Security Bldg. & 60 So. 423. Sav. Ass'n (Tenn.), 67 8. W. 388. 387 STATUTORY SEPAEATE ESTATE. § 369 arbitration of questions relating to the corpus of her separate estate."' A husband cannot, without special authority, bind his wife by a lease under which they occupy land.^ Where a hus- band had authority to employ a foreman on a bouse she was building, and employed such foreman without disclosing his agency, and used his services both on his wife's houses and his own, the foreman doing all his business with the husband and making no distinction in his accounts as to the houses he worked on, it was held that she was not liable for the foreman's services except where rendered on her own house, even though those of her husband were subsequently conveyed to hr.'' It is held that where the wife's lands are devoted to agriculture, the husband may burden the estate for things necessary to the production of crops.' § 368. By Lien. It is the declared rule of many States that the husband cannot of his own act, and without his wife's consent, subject the latter's separate land to debts for improvements, or subject it to a me- chanic's lien,* or to create any lien for improvements thereon." § 369. By Release. A husband has no implied authority to release his wife's claim for damages for a tort,* or to yield or compromise his wife's action.'' A husband has no authority, by mere implication from the facts that he controls and manages his wife's property, to con- sent that a judgment in her favor be set aside and a judgment entered in favor of the other party so as to deprive her of a home- stead right.* The husband's personal receipt of his wife's sepa- 99. Sampley v. Watson, 43 Ala. 377. v. Howland, 23 Miss. 264 ; Hughes v. To the same effect see Oldham v. Peters, 1 Cold. (Tenn.), 67; Esslinger Medearis (Tex.), 40 S. W. 350. v. Huebner, 22 Wis. 632; Gamett v. 1. Hooser v. Hooser, 3 Ky. Law, Berry, 3 Mo. App. 197; HoUey v. 7g5_ Huntington, 21 Minn. 325. Nor even 2. Newell v. Boberts, 54 N. T. 677. for necessary repairs. Dearie v. Mar- 3. Clopton V. Matheny, 48 Miss. tin, 78 Pa. 55. 286 ; Johnson v. Jones, 82 Misc. 483, 5. Larson v. Carter, 14 Ida. 511, 94 34 So. 83; Pocomoke Guano Co. v. P. 825. Colwell (N. C), 98 S. B. 535; Mc- 6. Stephens v. Schmidt, 80 N. J. Broom v. McBroom (Ark.) 180 S. W. Law, 193, 76 A. 332. 210. 7. Bizzell V. McKinnon, 121 N. 0. 4.' Briggs v. Titus, 7 E. I. 441 ; Spin- 186, 28 S. E. 271. ning V. Blackburn, 13 Ohio St. 131; 8. Winter v. Texas Land & Loan Co. Warren v. Smith, 44 Tex. 245; Pell (Texas, 1900), 54 S. W. 802 (jndg- V. Cole 2 Met. (Ky.) 252; Selph ment reversed, Texas Land & Loan § 370 HUSBAND AND WIFE. 388 rate property in general will not discharge a third party from liability to the wife where the circumstances repel a presumption of agency on the husband's part.' His receipt of money payable on her separate account — a legacy for instance — without her consent or authority does not debar her of her legal rights.^" And, on the other hand, where she is a mortgagee in her own right, the husband cannot alone receive payment and satisfaction and dis- charge the mortgage.^^ Ifor has the ddbtor or custodian of the incorporeal property, or the executor or administrator who settles the estate in which the married woman may have a legacy or distributive share ac- cruing to her, the right to recognize the husband as entitled to her exclusion, or to pay over to him on his sole and unauthorized receipt. ^^ § 370. Rights of Purchasers from Husband. While the wife may avoid a fraud upon her as against all who participated therein, it is a rule that a valuable creditor's rights cannot be prejudiced by any duress, menace, or other misbehavior of the husband, which procured them the wife's security, if it was without such creditor's instigation, knowledge, or consent.^^ It is Co. V. Wiater, 93 Tex. 560, 57 8. W. the mortgagee before sale is allowed 39). to enter and take the rents without 9. Bead v. Earle, 13 Gray (Mass.), the wife's consent, he must account to 423 ; Anderson v. Gregg, 44 Miss. 170. her, and cannot credit the same on Possession of the bond or incorporeal the husband's debt. Semple v. Brit- chattel by the husband is evidence ish Columbia Bank, 5 Sawyer (IT. 8.), tending to prove authority to receive 394; McKinney v. Hamilton, 51 Pa. the money for his wife, but not con- 63. elusive evidence. Tazel v. Palmer, 81 12. AUter, if the husband's receipt m. 83; Carver v. Carver, 53 Ind. 341. was authorized by the wife. Hoben- And see Nevius v. Gourley, 95 HI. sack v. Hallman, 17 Pa. 154. Some 206; Windsor v. Bell, 61 Ga. 671. of the local statutes are held not to 10. Gore v. Carl, 47 Conn. 391 ; Nev- restrain the husband from collecting ius V. Gourley, 95 111. 306; Bead v. and reducing to possession his wife's Earle, 13 Gray (Mass.), 433; Wind- choses m action. Clark v. Bank of eor V. Bell, 61 Ga. 671 ; Anderson v. Missouri, 47 Mo. 17. Gregg, 44 Miss. 170. 13. Childs v. McChesney, 30 la. 11. Savage v. Winchester, 15 Gray 431; Edgerton v. Jones, 10 Minn. (Mass.), 453; Hanford v. Bockee, 5 437; Nelson v. Holly, 50 Ala. 3; C. E. Green (N. J.), 101; Bank of Singer Man. Co. v. Book, 84 Pa. 443; Albion V. Burns, 46 N. T. 170 ; Faulks Marston v. Brittenham, 76 111. 511 ; v. Dimock, 27 N. J. Eq. 65; Hubbard Conn. Life Ins. Co. v. McCormick, V. Ogden, 22 Kan. 363 ; Purvis v. 45 Cal. 480 ; Hull v. Sullivan, 63 Ga. Carstphan, 73 N. C. 575. But see 126. Zane v. Kennedy, 73 Pa. 182. Where 389 STATUTOEY SEPABATE ESTATE, § 371 otherwise if tlie latter's instigation, knowledge, or consent appear/* In such case the wife has the burden of showing that the creditor had knowledge of the fraud on her.^° But when the hushand makes a void transfer as his wife's trustee, it is held that she can follow the investment into other hands." Or she may have him removed from his trusteeship for suitable cause/' § 371. Notice to Husband as Notice to Wife. A wife is not generally chargeable with notice of facts merely because her husband has knowledge of them.^* But she may be so chargeable, especially where she reaps the benefits of his fraud," and where he acts as her agent.^" In Tennessee it is held that there is a presumption a husband who has knowledge that property conveyed to his wife was burdened with an easement communi- cated this knowledge to her.''^ Where a husband attended to the shipment of the wife's goods, which were consigned to her, it was held that the carrier properly treated him as the owner, and notified only him of an attachment of the property for his debt^^ Where a husband caused a deed to be made to his wife, but signs notes with her for the purchase price and makes payments thereon, notice of the assignment of the mortgage was held sufficient where made to him alone.^* Where on a reconveyance of the wife's land after payment of a loan to her on the security of her conveyance of property, the husband takes a reconveyance in his own name, she 14. Line v. Blizzard, 70 Ind. 23 ; Co. v. Boeger, 74 Misc. 547, 132 N. T. Haskit V. Elliott, 58 Ind. 493. S. 286 ; Tate v. Tate, 19 Ohio Cir. E. 15. Sparks v. Taylor, 99 Tex. 411, 532, 10 O. C. D. 321; Eowley v. Shep- 90 8. "W. 485. ardson (Vt.), 99 A. 228; Hathaway 18. George v. Bansom, 14 Cal. 658. v. Ernest A. Arnold Land Co. 157 17. Eainey v. Eainey, 35 Ala. 282. Wis. 22, 145 N. W. 780. So with any other trustee of her sepa- 20. Paircloth v. Taylor, 147 Ga. rate property. Johnson v. Snow, 5 787, 95 S. E. 689; Libby v. Pelham, E. I. 72. 30 Ida. 614, 166 P. 575; Loveland v. 18. Toung V. AJlen, 207 F. 318, 125 Bump (Mich.), 165 N. W. 855; Gra- C. C. A. 68; Weightman v. Washing- ham Paper Co. v. St. Joseph Times ton Critic Co., 4 App. D. C. 136; Printing & Publishing Co., 79 Mo. Francis v Beeves, 137 N. C. 269, 49 App. 504. 8. E. 213; Potter v. Mobley (Tex.), 21. Parker v. Meredith (Tenn.), 59 194 8. W. 205; Ealeigh v. Lee, 26 Cal. S. W. 167; Forsythe v. Brandenburg, App. 229, 146 P. 696; H. C. Girard 154 Ind. 588, 57 N. E. 247. Co. V. Lamoureux, 227 Mass. 277, 116 22. Furman v. Chicago, E. I. & P. N. E. 572; Thompson v. Harmon Ey. Co., 62 la. 395, 17 N. W. 598. (Tex.), 152 S. W. 1161. 23. Cox v. Cayan, 117 Mich. 599, 76 19. Cullen v. Veasey (Del.), 95 A. N. W. 96, 5 Det. Leg. N. 346, 72 Am. 655; Hamblet v. Harrison, 80 Miss. St. E. 585. 118, 31 So. 580 ; Henry Elias Brewing § 372 HUSBAND AND WIFE. 390 having no knowledge of the fact, she is not charged with his knowledge of the fact though he acted as her agent in securing the loan, as he acted against her interest/* § 372. Rights of Husband's Creditors; In General. Though it is not against puhlic policy to permit a wife's prop- erty to be taken for her husband's debts,^" yet under most Married Women's Acts property bona fide acquired by her in her own name and with her own money will not be subject to such debt,^* whether acquired before or after the deibt was oontracted,^^ especially where she had no interest in the property when the debt was con- tracted,^' even though it was so acquired from her husband."' Thus a gift of real estate to a wife by her father is not subject to her husband's debts because he conveyed it to the father, if the conveyance was in satisfaction of a debt really owed to him.'" A husband's bona fide investment of money in improvements upon his wife's estate cannot be subjected to satisfaction of the claims of his creditors.'^ The basis on which her property may be made liable for his debts is faith placed by a creditor in his apparent ownership of it,'" therefore, if the title to land is in the wife's 24. Huot V. Eeeder Bros. Shoe Co., 140 Mich. 162, 103 N. "W. 569, 12 Det. Leg. N. 98. 25. Meier & Frank Co. v. Bruce, 30 Ida. 732, 168 P. 5. 26. Studebaker Bros. Mfg. Co. v. De Moss, 63 Ind. App. 635, 113 N. E. 417; Morin v. Kirkland, 226 Mass. 345, 115 N. E. 414; Stewart v. Stew- art, 207 Pa. 59, 56 A. 323 ; Patterson V. Gilliland (Ala.), 82 So. 493; Ran- kin V. West, 25 Mich. 195; Hoover v. Carver (Minn.), 160 N. W. 249; Evans v. Cullens, 122 N. C. 55, 28 S. E. 961; Farmers' State Bank v. Keen (Okla.), 167 P. 207; Ernst v. Wagner, 4 Walk. (Pa.) 229 ; Frost v. Knapp, 10 Pa. Super. 296; Ball v. Penn, 10 Pa. Super. 544; Emerson- Brantingham Implement Co. v. Broth- ers (Tex.), 194 S. W. 608; Bum- ham V. Stoutt, 35 Utah, 250, 99 P. 1070; MiUer v. McLin, 147 Ky. 248, 143 S. W. 1008. 27. Big Plum Creek Turnpike Co. v. N. L. Walker & Co., 145 Ky. 269, 140 S. W. 304; J. M. Houston Grocer Co. V. McGinnis, 20 Ky. Law, 157; Chil- ton V. Hannah, 107 Va. 661, 60 S. E. 87. 28. Barker v. Thayer, 217 Mass. 13, 104 N". E. 572. 29. MeCormick v. Brown, 97 Neb. 545, 150 N. W. 827 ; Morris v. Waring (N. M.), 159 P. 1002. 30. First Nat. Bank v. Bice, 22 Ohio Cir. Ct. 183, 12 O. C. D. 121. 31. McFerrin v. Carter, 3 Baxt. (Tenn.) 335. In Texas it is held that a wife's land cannot be subjected to the husband's debts unless the im- provements were made with either the husband's or community funds, and with an intent to defraud cred- itors, in which the wife knowingly participated. Maddox v. Summerlin, 92 Tex. 483, 49 S. W. 1033; Palmer Pressed Brick Works v. Stevenson (Tex.), 185 S. W. 999; Collins v. Bryan, 40 Tex. Civ. 88, 88 S. W. 432. S3. O'Farrell v. Vickrage, 163 111. App. 519 ; Eickett v. Bolton, 173 Ky. 739, 191 S. W. 471; Deacon v. Al- sheimer (N. J.), 89 A. 512. 391 STATUTOET SEPAEATE ESTATE. § 372 name of record when the debt is contracted, the creditor must take notice, no matter what representations are made by the hus- band/* and she is not bound by his statements to creditors as to her other property.** She need not, as against his creditors, show that property conveyed to her was paid for with her separate estate,*" or show the source of every dollar paid for it.*° A hus- band's creditor takes no rights in the wife's property assigned to the debtor by mistake,*' now in her property in his possession as agent.** Where a wife has title to personal property bought with the proceeds of land subject to her husband's debts such personal property may be subjected to the debts,*^ but in such case her other property will not be liable for a deficiency.*" As against the creditors of a husband who manages a business belonging to a wife empowered to trade as sole, she may be liable for the reasonable, but not for the contract value of his services, if they cannot validly contract with each other.*^ As a broad principle the wife's separate property cannot be taken for her husband's debts or subjected to the demands of his creditors apart from her con- sent. The wife may enjoin an execution in favor of her husband's creditors, levied on her separate property,*" and the fact that the husband uses and enjoys some of the benefits of the wife's separate property, and out of it procures the means for the support of his family (a consequence almost inevitable where matrimonial confidence prevails in the household, even though the wife be rich), and consistently liable for the debts of the husband.** The crops cannot be attached by his creditors.** Nor the betterments, build- ings, and rents.*^ Nor is his use upon his wife's farm, of teams 33. Glaze v. Pullman State Bank, 40. Bennett v. Campbell, 43 App. 91 Wash. 187, 157 P. 488. Div. 617, 59 N. T. S. 326. 34. MeDonnell v. Solomon (Colo.), 41. Smith v. Meisenheimer, 20 Ky. 170 P. g'Sl. Law, 1718, 49 S. W. 968. 35. Clark v. Meyers, 24 Ky. Law, 42. Brevard v. Jones, 50 Ala. 221. 380 68 S. W. 853. -A^d see Barclay v. Plant, 50 Ala. 509. 36. Ambrose v. NoeU, 21 Ky. Law 43. Blood v. Barnes, 79 111. 437; 388 51 8. W. 570. Yale v. Dederer, 68 N. Y. 329; Prim- 37. Jones v. Nolen, 133 Ala. 567, mer v. Clabaugh, 78 111. 94. 31 So. 945; Smith v. Farmers' & 44. Melntyre v. Knowlton, 6 Allen Merchants' Nat. Bank, 57 Ore. 83, (Mass.), 565; Lewis v. Johns, 24 Cal. 110 P. 410; Smith v. Gott, 51 W. Va. 98; Allen v. Hightower, 21 Ark. 316. 141, 41 S. B. 175. 45. White v. Hildreth, 32 Vt. 265; 38. Tallman v. Jones, 13 Kan. 438; Goss v. Cahill, 42 Barb. (N. T.) 310; Bohner v. Cummings, 91 Pa. 55. Wilkinson v. Wilkinson, 1 Head 39. Mortens v. Schlemme, 68 N. J. (Tenn.) 305; Eobinson v. Huffman, Eq. 544, 59 A. 808. 15 B. Mon. (Ky.) 80. § 373 HUSBAND AND WIFE. 392 bought with her money, a conversion in any such sense as to render them attachable for his debts.*' One seeking to subject a wife's separate estate to a debt must aver the debt was hers.*' A debt due from a husband to a mortgagor canuot be set off against the mortgage which such mortgagor has given to the wife.** Where one having claims against both spouses with notice receives the money of the wife he must credit it on her debt.*® Property conveyed by a husband to his wife is not in his possession, so as to be subject to levy for his debts, her possession being not his."* Where under the Michigan Married Women's Act the husband had not given the wife the right to her own earnings, it was held that the mere fact that the wife has paid part of the purchase price of a piano did not give her title as against his creditors."^ Under the Tennessee statute furniture bought by a husband vidth money given him by his wife was held subject to his debts, though he gave her the furniture.°^ In Virginia it is held where the com- pensation of the husband for services in managing the wife'* saparate business is more than sufficient to support the family, the excess belongs to his creditors, if there was no contract between the spouses.^* § 373. As to Value of Husband's Services. It seems to be the well-settled American doctrine that by work- ing upon the wife's land the husband acquires no beneficial in- terest therein which can be enforced in equity on behalf either of himself or his creditors, in absence of a definite agreement for compensation; unless, possibly, it could be shown to exceed in value the cost of supporting the whole family,"* nor does she incur 46. Spooner v. Eeynolda, 50 Vt. 437. 3 Va. Sup. Ct. E. 491, 40 S. E. 34; 47. Holt V. Gridley, 7 Ida. 416, 63 Penn v. Whitehead, 17 Grat. (Va.) P. 188. 503, 94 Ann. Dec. 478 ; Atkinson v. 48. Cole V. Darling, 123 Mich. 1, 81 Solenberger, 113 Va. 667, 72 S. E. N. W. 967, 6 Det. Leg. Notes, 967; 727. O'Donnell v. Bray, 99^ Mich. 534, 58 54. Buckley v. Wells, 33 N. Y. 518; N. W. 475. Webster v. Hildreth, 33 Vt. 457; 49. Chason v. Anderson, 119 Ga. Cheuvete v. Mason, 4 Greene (la.), 495, 46 8. B. 629. 231; Betts v. Betts, 18 Ala. 787; 60. Wyatt v. Wyatt, 31 Ore. 531, Commonwealth v. Fletcher, 6 Bush 49 P. 855. (Ky.), 171; Eowe v. Drohen, 245 F. 51. Le Blanc v. Sayers (Mich.), 168 684; Lister v. Vowell, 122 Ala. 264, N. W. 445. 25 So. 564; Martiu v. Banks, 89 Ark. 52. Bynum v. Johnston, 222 F. 659, 77, 115 8. W. 928 Sharp v. Fitzhugh, 138 C. C. A. 183. 75 Ark. 562, 88 8. W. 929; Alsdurf 53. Catlett v. Alsop, 99 Va. 680, v. Williams, 196 Dl. 244, 63 N. E. 393 STATUTOBY SEPAEATE ESTATE. § 373 liatility hj the fact that she secures his services as ageiit,°^ nor the fact that she gives him power to sell it for her/" nor the fact that he manages her property in his own name, if there is no evi- dence that the creditor acted on the faith of his supposed title,"'^ or that the property is really his own/' With the assent of the husband and father, the labor of the wife and children may be bestowed upon the separate property of the wife, and thus enure to their benefit. There is no known rule of law which requires the husband and father to compel his wife and children to work in the service of his creditors."® And it is held that the husband may stipulate, though insolvent, that th© product of his own labor shall be appropriated to his wife's separate use."* If permitted to be maintained upon his wife's property, he does not necessarily acquire a title to the property or its products merely by bestowing his voluntary la!bor upon it."*^ And a similar principle may be applied to a wife supported from her husband's property.*^ But it is held that the husband's occupation and cultivation of his wife's lands with her assent may be considered as bestowed for the common benefit of the family, or so as to give him th© 686; MiUer v. Beatfy, 171 lU. App. 87 N. E. 913; McDonald Mfg. Co. 72; EUiott v. Atkinson, 45 Ind. App. "WiUiams, 96 111. App. 395. 290, 90 N. B. 779 ; Wasam v. Baben, 56. Eeed v. Kimsey, 98 111. App. 45 Ind. App. 221, 90 N. B. 636; 364. Beere, Wells & Co v. Bonne, 108 la. 87. Hall v. Warren, 5 Ariz. 127, 48 281, 79 N. W. 59, 75 Am. St. B. 254; P. 214; First Nat. Bank v. Biee, 32 Guthrie V. Hill, 138 Ky. 181, 127 S. Ohio Cir. Ct. 183, 12 O. C. D. 121. W. 767; Thompson & Co. v. Taylor 58. Murphy v. Nilles, 166 lU. 99, 46 (Ky.), 124 S. W. 357; First Natchez N. E. 772. Bank v. Moss, 52 La. Ann. 1524, 28 59. Johnson t. Vail, 1 McCart. 423. So. 133; Hibbard v. Heckart, 88 Mo. 60. Hodges v. Cobb, 8 Eich. (S. C.) App. 544; Frost v. Knapp, 10 Pa. 50. But see Penn v. Whiteheads, 12 Super. 296 Martin v. Eemington, 100 Gratt. (Va.) 74. Wis. 540, 76 N. W. 614, 69 Am. St. 61. Bush v. Vought, 55 Pa. 437; E. 941; Oldershaw V. Matteson & Wil- Boss v. Gomber, 23 Wis. 284; Mer- liamson Mfg. Co., 19 Cal. App. 179, rick v. Plumley, 99 Mass. 566; Gage 125 P. 263; Pease v. Barkowsky, 67 v. Dauchy, 34 N. T. 293; Hazelbaker lU. App. 274; Patton 's-Ex 'r v. Smith, v. Goodfellow, 64 HI. 238; Feller v. 130 Ky. 819, 114 S. W. 315 Davis v. Alden, 23 Wis. 301. Francis,' 22 Ky. Law, 1618; Black- 62. Burcher v. Ream, 68 Pa. 421. bum V. Thompson, 23 Ky. Law, 1733, See Dean v. Bailey, 50 111. 481, as to 66 S W. 5 56 L. E. A. 938; J. E. the liability of a farm and stock, Hayner & Co. v. McKee, 34 Ky. Law, where the husband's control is not of 1871. a character inconsistent with the com- 55. Kennard v. Curran, 239 HI. 122, mon interests of himself and wife. § 374 HUSBAND AND WIFE. 394 ri^t to tile products of his own toil like that of any tenant,*' and that where his own skill and service were the chief source of emolu- ment, the wife ought not to claim all as her own against him.'* Moreover, if by contract express or implied the wife is indebted to her husband for his services as managing agent, it is held that she is subject to garnishment at the instance of his creditors.'" And under an agency in the management of the wife's lands the produce or rent of the lands and increase of animals are the wife's property as fully as the original property whence they are derived ; and the husband's purchase of lands with such profits, or the rais- ing of a crop thereon under his supervision, does not necessarily subject land or crop to his debts.'' § 374. E£Fect of Husband's Possession of Separate Estate. Mere possession of a wife's property by a husband will not enbject it to his debts," nor does the fact that he takes title to her land in his name necessarily have that effect," or that he has her property billed for shipment in his own name.'" If the creditor has reasonable cause to believe that money received from the husband is that of the wife he gets no title to it." If the husband has erroneously returned her property as his for taxation he may, as against his creditor, show the fact."^ Her right to her property is not affected by the fact that the debtor sends her money to the bank with instructions to credit it to the husband,^* nor by the fact that she permits a note for the purchase price of her separate estate to be made out to him or her in the alternative, and permits him to keep it,'* or by the fact that she takes in pay- ment a check payable to her husband's order,'* or that she permits him to sign checks against her bank account,'" or that for con- es. Elijah V. Taylor, 37 HI. 247. 111. App. 323 (affd., 172 ni. 625, 50 64. Glidden v. Taylor, 16 Ohio St. N. E. 131) ; Glover v. Suter, 18 Ky. 509. Law, 1018, 38 8. W. 869. 65. Keller v. Mayer, 55 Ga. 406. 70. Maeon & B. Ey. Co. v. Lane, 6 66. Bongard v. Core, 82 HI. 19. Ga. App. 549, 65 S. E. 360. 67. Magerstadt v. Sehaefer, 110 HI. 71. De Loach v. Sarratt, 55 8. C. App. 166 (affd., 213 HI. 351, 72 N. B. 254, 33 8. E. 2, 35 8. E. 441. 1063) ; State ex rel. Smith v. Jones, 72. First Nat. Bank v. Gatton, 178 83 Mo. App. 151. lU. 625, 50 N. E. 121. 68. Gladstone Lumber Co. v. Kelly, 73. Corry v. Jones, 114 Ala. 502, 21 64 Ore. 163, 129 P. 763; Nelson v. So. 815. Vanden, 9^ Tenn. 224, 42 S. "W. 5; 74. Norton v. Reed (Tenn.), 42 B. Ealey v. Abright (Tex.), 43 8. W. W. 688. 538. 75. Kean v. Eean, 172 lU. App. 183. 69. First Nat. Bank v. Gatton, 71 395 STATUTOEY 8EPABATE ESTATE. § 376 Tenience she takes in payment a note payable to his order, where the creditor was not misled." § 375. Transactions in Fraud of Creditors. Yet the credit the husband may derive from his own business transactions from a use and enjoyment of the wife's separate estate should be well considered where his creditors sue ; and it is held upon high authority that purchases of real or personal prop- erty, made during coverture by the wife of an insolvent debtor, should be suspiciously regarded and not allowed to prevail in contests between his creditors and her, unless she can show that she paid bona fide from her separate means.^^ But the " manag- ing agent" doctrine has it limits, in New York, as elsewhere; and where there is a mere shifting of property from husband to wife, and from wife back to husband as her managing agent; or where the husband, doing business as his wife's agent, obtains goods on credit under false pretences, and then gets her to make an assignment of them, such an artifice for evading his creditors is likely to fail." § 376. As Wife's Agent in General. A wife is not bound by her husband's unauthorized or unratified acts,^' even for supplies purchaised for land of which he had a life estate, and she a remainder held in trust without trustees, even though he assumed to act as " agent or trustee,'"" but he may now be employed, either with or without compensation, as his wife's agent in the management of her lands,*^ or as to her sepa- rate estate generally,*^ without formality other than that required 7«. King v. Wells, 106 la. 649, 77 Brundage, 131 Minn. 299, 154 N. W. N. W. 338. 1086; Norfolk Nat. Bank v. Nenow, 77. Seitz V. Mitchell, 94 V. S. 580. 50 Neb. 429, 69 N. W. 936; Curtis v. The uncorroborated testimony of the Olds, 250 Pa. 320, 95 A. 526. spouses themselves, on such an issue, 80. Byne v. Corker, 100 Ga. 445, 28 is not to be favored. Besson v. 8. E. 443. Eveland, 26 N. J. Eq. 468. 81. Walker v. Carrington, 74 DL 78. Warner v. Warren, 46 N. T. 446 ; Bongard v. Core, 83 111. 19. 228; Edgerly v. Whalen, 106 Mass. 82. Watring v. Gibson (W. Va.), 307; Little v. Willets, 55 Barb. (N. 100 S. E. 68; Marbury Lumber Co. Y_)'i25. ^- Woolfolk (Ala.), 65 So. 43; Mager- 79. Blount v. Dugger, 115 Ga. 109, stadt v. Schaefer, 110 111. App. 166 41 S. E. 270; McMillan v. Wilcox, 12 (affd., 213 ni. 351, 72 N. E. 1063) ; Ga. App. 721, 78 8. E. 270 ; 8encerbox Taylor v. Minigua, 66 111. App. 70 ; V. First Nat. Bank, 14 Ida. 95, 93 P. Sutherin v. Chesney, 85 Kan. 122, 116 369- Meeks v. Indiana Lumber Co. P. 254; Hunt v. Rhodes Bros. Co., 207 (Ind.), 105 N. E. 947; Baker v. Mass. 30, 92 N. E. 1001; First Com- § 377 HUSBAND AND WIFE. 396 in the case of any person sui juris.^^ Her death will revoke such an agency.** As such he may perform for her all the usual serv- ices without compensation, without subjecting her property to his debts.*' Under the Alabama Married Women's Act, authorizing spouses to dispose of her separate estate by parol, she may author- ize him to vote her stock in a corporation.*^ In Missouri she can- not have an agent, even her husband, as to land owned by her in fee." § 377. Scope of Agency in General. The general principles of the law of agency apply to cases where parties are husband and wife,** and when she makes him her agent she is bound by his acts within the scope of his authority,*' whether the fact of agency is disclosed or not."" A married woman cannot give to any agent a power which she does not herself possess as to her separate estate."^ She may give him a power of attorney and require him to pursue its terms carefully.'^ And the wife may employ other agents, who will not be held answerable to him for executing her orders.'* mereial Bank v. Newton, 117 Mich. 438, 75 N. W. 934, 5 Det. Leg. N. 276; Rankin v. "West, 25 Mieh. 195; City of Joplin ex rel. Kee v. Freeman, 125 Mo. App. 717, 103 S. W. 130; Stout v. Perry, 152 N. C. 312, 67 S. E. 757; Taplin & Eowell v. Clark (Vt.), 95 A. 49'1; Diekey v. Vaughn (Ala.), 73 So. 507; Nigh v. Dovel, 84 111. App. 228; Wasam v. Baben, 45 Ind. App. 221, 90 N. E. 636; Baze- more v. Mountain 121 N. C. 59 ; Trap- nell V. Conklyn, 37 W. Va. 242, 16 S. E. 570 ; Harris v. Weir-Shugart Qo., 51 Neb. 483, 70 N. W. ill8. 83. Stout T. Perry, 152 N. C. 312, 67 S. E. 757; Barber v. Keeling (Tex.), 204 S. W. 139. 84. Strong v. Gambler, 155 App. Div. 294; 140 N. T. S. 410. 85. Torrey v. Dickinson, 213 111. 36, 72 N. E. 703 ; Gibson v. Kimmit, 113 m. App. 611. 86. Hoene v. Pollak, 118 Ala. 617, 24 So. 349, 72 Am. St. R. 189. 87. Spurlock v. Dornan, 182 Mo. 242, 81 S. W. 412. 88. Eunyoon v. SneU, 116 Ind. 164, 18 N. E. 522, 9 Am. St. R. 839 ; Roper V. Cannel City Oil Co. (Ind.), 121 N. E. 9'6 89. Thompson v. Brown, 106 la. 367, 76 N. W. 819; Meylink v. Rhea, 123 la. 310, 98 N. W. 779; Thomas V. Equitable Building & Loan Assn., 215 Pa. 259, 64 A. 531; Swatts v. Harrison, 19 Ga. App. 217, 91 S. E. 337; Western Carolina Realty Co. v. Rumbough, 18 N. C. 641, 9'0 S. E. 931 ; Bank of Kenton v. Preble, 87 Ore. 230, 170 P. 302; Leppel v. Engle- kamp, 12 Colo. App. 79, 54 P. 403. Where a husband, while collecting rent of his wife's tenant, and in her ab- sence, committed an assault, the wife could not be held liable therefor in the absence of proof that, in appoint- ing her husband her agent, she acted of her own free will. O 'Carroll v. Stark, 85 N. J. Law, 438, 89 A. 989. 90. Williamson v. O 'Dwyer & Ahem Co., 127 Ark. 530, 192 S. W. 899. 91. Kenton Ins. Co. v. MeClellan, 43 Mich. 564. 92. Nash v. Mitchell, 71 N. T. 199. 93. Southard v. Plummer, 36 Me. 64, 397 STATTJTOEY SEPAEATE EiSTATE. § 378 The undoubted right of the wife, on general principles, to treat her husband as the trustee of her separate property, has given rise, under the Married Women's Acts, to perplexing questions as between herself and his creditors. In New York, her privileges in this respect are carried very far; for she may employ her husband as her managing agent to control her property, without subjecting it to the claim of his creditors; the application of an indefinite portion of the income to his support does not impair her title to the property ; and neither he nor his creditors will acquire an interest in the property through his services thus rendered.'* In Illinois, too, it is well recognized that the wife may make her husband her agent to collect debts due her, to receive from others the income of her estate, and, like other agents, to manage and control her separate property in her name.°° Such, too, is the rule of certain other States, to the practical disadvantage of the husband's creditors, as well as for the wife's protection against her husiband.'® In Maine the husband may sue for damages to his wife's separate estate while managing it for her.*^ § 378. Scope of General Agency. A husband who is general agent for his wife in the construction of her building has implied authority to make changes in the building contract,®' and may bind her by a note given for money which is expended in grain deals.^ A husband who has general power to manage his vsrife'a land may bind her by an agreement with other land owners for joint drainage of the lands." A gen^ eral agency will not bind the wife by his fraud in making a con- veyance for her as such agent where their interests are antag- onistic.^ A general power of attorney by a wife to her husband for the sale of her stock does not empower him to apply the pro- ceeds to his debt, or warrant the vendee in doing do,* nor to bind her by notes." General authority to manage her property does not 94. Buckley v. Wells, 33 N. T. 518; 1. Buchanan Elevator Co. v. Lees Knapp v. Smith, 27 N. T. 377. (N. D.), 163 N. W. 264. 95. Patten v. Patten, 75 ni. 446. 2. Irwin v. Hoyt, 162 la. 679, 144 N. 96. Aldridge v. Muirhead, 101 TJ. S. W. 584. 397- Coleman v. Semmes, 56 Miss. 3. Manship v. Newton (S. C), 89 S. 321 i Wells V. Smith, 54 Ga. 262. E. 467. 97. Woodman v. Neal, 48 Me. 266. 4. Wilson v Wilson-Bogers, 181 Pa. But only in her name, in accordance 80, 37 A. 117. with statute. 5. Morris v. Friend (Ark.), 173 S. 98. Bryan v. Hunnicutt (Ala.), '^ W. 199. So. 471. § 379 HUSBAND AND WIFE, 398 imply power, to bind her by a purchase of other property of like Dature,' or to apply rents to improvements or the payment of taxes.'' A wife is not bound by the husiband's agreement establish- ing her boundary lines, even though he is her general agent in the management of her lands and business.* § 379. Implied Authority as Agent. If a wife has once authorized her husband to act for her, she will continue to be liable for his acts to anyone knowing of the agency till she has notified such person of its termination.* Authority to a husband to sell his wife's property implies author- ity to receive payment,^" but without special authority a husband acting as his wife's agent cannot accept anything but money in payment for her real estate,^' nor on her promissory note,^^ nor appropriate the money received to his own use.^' Her indorse- ment of a promissory note to his order is sufficient authority for him to collect it for her.^* A power to collect money for a wife does not give power to make a gift of it to a third person.^" Her authority to pledge her property will not authorize a sale.^* Authority to a husband to make his wife a definite specified contract does not empower him to make other contracts not specified, though in relation to the same subject matter,^^ as where he contracts to pay a commission for the sale of her land, he acting as her agent for the sale.^* "Where a wife intrusts a deed to her husband for delivery, he has implied power to make reasonable stipulations as to the delivery which are within her instructions and not in fraud of her rights.^® A husband having authority from his wife to build a barn may employ a contractor and author- ize him to procure materials.^" It has been held that where a 6. Du Bose v. Gladden, 75 S. C. 78, 14. Stone v. Gilliam Exch. Bank, 81 55 S. E. 152. Mo. App. 9. 7. Taylor v. Taylor, 54 Ore. 560, 15. Mitehener v. Trazer, 168 Mo. 103 P. 524. App. 265, 153 S. W. 488. 8. MeCombs v. Wall, 66 Ark. 336, 16. Morgan v. Hays (Tex.), 147 S. 50 S. "W. 876. W. 315. 9. Howard v. Strawbridge & Clo- 17. Crawley v. Watt-Holmes Hard- thier, 165 Ky. 88, 176 S. W. 977. ware Co., 12 Ga. App. 367, 77 S. E. 10. Long v. Martin, 71 Mo. App. 106. 569. 18. Hamwell v. J. D. Arnold & Co., 11. Eunyon v. Snell, 116 Ind. 164, 128 Ark. 10, 193 S. W. 506. 18 N. E. 522, 9 Am. St. E. 839. 19. Bott v. Wright (Tex.), 132 S. 12. Carver v. Carver, 53 Ind. 241. W. 960. 13. Eeynolds v. Nat. Bank of Com- 20. Elliott v. Bodine, 59 N. J. Law, merce (Kan.), 178 Pa. 605. 567, 36 A. 1038. 399 STATTTTOEY SEPARATE ESTATE. § 381 huslband was executor under a will containing a legacy to tis wife, and under whicli she was trustee, liad authority to employ counsel and other assistance in the management of the estate and property, including the trust estate.^^ The marital relation gives a husband no authority to consent to a surgical operation on the wife, as she is capable of consenting."^ § 380. Power to Bind Wife by Declarations. The general rule that a principal is bound by the representations of an agent as to existing facts in regard to the subject matter of the agency applies to a wife's agent.^' Thus delivery to a hus- band of a note made by the wife as surety is authority for his delivery of it and to bind her by his representation that she made it as principal,^* and where he manages her business he has implied authority to make representations as to her financial condition.*" A wife is bound by her husband's admission when he acts as her agent/® but not otherwise."' Declarations not made at the time of a transaction, and disconnected with his act as her agent, are not admissible in evidence against her, even though they might be as against himself."* An authority to declare that a wife is in partnership with her husband cannot be inferred from his author- ity to attend generally to her business."* § 381. Evidence of Agency in General. The huslband's agency, whether created under suspicious circum- stances or not, as regards the public, is^ like other agencies, a matter of fact for legal ascertainment upon all the proof. A husband's agency to act for his wife must in some way aflSrma- tively appear.'" The fact of agency must be clearly estab- 21. Sowles V. Hall, 73 Vt 55, 50 A. N. E. 625; Eicks v. Wilson, 154 N. C. 550. 282, 70 S. E. 476. 22. Pratt v. Davis, 224 ni. 300, 79 28. Livesley v. Lasalette, 28 Wis. N. E. 562, 7 L. R. A. (N. S.) 609. 38; Warner v. Warren, 46 N. T. 228. 23. Watring v. Gibson (W. Va.), 29. First Nat. Bank v. Leland, 122 100 S. E. 68. Ala. 289, 25 So. 195. 24. Wm. Deering & Co. v. Veal, 25 30. Dussoulas v. Thomas (Del.), 65 Ky. Law, 1809, 78 S. W. 886. A. 590; Axson v. Belt, 103 Ga. 578, 25. Morris v. Posner, 111 la. 335, 30 S. B. 262; Blaekstone v. Widin- 82 N. W. 755. camp, 145 Ga. 689, 89 S. E. 745 ; Wait 26. Arnold v. Loomis, 170 Gal. 95, v. Baldwin, 60 Mich. 622, 27 N. "VV^. 148 P. 518. 697, 1 Am. St. E. 551; Slaughter v. 27. Lohrman v. Grundler, 168 HI. Elliott, 138 Mo. App. 692, 119 S. W. App. 161; Ewing v. Gray, 12 Ind. 64; 481; Guenther v. Moffett (N, J.), 71 Green V. Pearlstein, 213 Mass. 360, 100 A. 153; Snyder v. Sloane, 65 App. § 382 HUSBAND AND WIFE. 400 lished.^^ His possession of her property is some evidence of agency to deal witli it,^^ but it is not conclusive/* as is her per- mitting him to do business generally in her name.'* Where the transaction in question concerns their household goods, slight evidence will establish the fact of agency.'" The same is true where his acts in regard to her property tend to carry out her known wishes.'" Under the Alabama statute a wife may only con- tract in writing with her husband's written consent, and therefore cannot authorize him orally to act as her agent." § 382. Burden of Proof. Persons dealing with a husband as his wife's agent are at their peril to know that he has authority.'* Therefore the burden of proof is on the party relying on such agency." It may be shown Div. 543, 72 N. Y. S. 981; Homberger V. Feder, 30 Misc. 121, 61 N. T. S. 865; Hewey v. AndiewB, 88 Ore. 448, 161 P. 108; True v. Cudd, 106 S. C. 478, 91 S. E. 856 ; Henderson v. State, 55 Tex. Cr. 640, 117 S. W. 825; Enslen V. AUen, 160 Ala. 529, 49 So. 430. Under the Mississippi Married Wo- men's Act a husband cannot charge his wife's property with a liability without her written consent. Fair- banks Co. T. Briley (Miss.), 25 So. 354. 31. Koper v. Cannel City Oil Co. coupled with long asquiescence by the donor in the donee's use of the property as his own,*' as well as from the fact that a wife uses her property to improve her husband's land with the excep- tion of occupying them jointly with him.'* Causing a note and mortgage for a loan made by the husband to be drawn in the name of the wife is a good gift,"' as well as causing half of a debt due him to be paid by a check payable to his wife,^ and causing shares of a loan association to be cancelled and new shares issued to the spouses jointly, with a right of survivorship,^ and giving her several sums of money on a trip abroad without evidence of any intention that she should account for it.^ Giving a wife all his wages, with part of which she paid household expenses and with the balance paid off incumbrances against her home, has been held a good gift of the balance as against the donor's creditors.* Where a wife signed her husband's deed in consideration of the delivery of a horse to her, it was held that there was a good gift of the horse," and where she assigned her stock to him, and he, with her knowledge, treated it as his own, there was a valid gift." 94. Lloyd v. Fulton, 91 U. S. 479; 98. Knickerbocker Trust Co. v. Bradley v. Saddler, 54 Ga. 681; Hay- Carhart, 71 N. J. Eq. 495, 64 A. 756. ford V. WaUace, 114 Cal. 16, 46 P. 99. Dupont v. Jonet, 165 Wis. 554, 301. 162 N. W. 664. 95. Baddeley v. Baddeley, 26 W. R. 1. Brown v. Brown, 174 Mass. 197, 850. And see Thomas v. Harkness, 13 54 N. E. 533, 75 Am. St. B. 2H2; Wil- Bush (Ky.), 23; Hutchins v. Dixon, cox v. Murtha, 41 App. Div. 408, 58 11 Md. 29. This doctrine of equity N. T. S. 783. seems a dangerous one to press far, 2. East Rutherford Sav., Loan & since it tends to dispense with the Bldg. Ass'n v. McKenzie, 87 N. J. fundamental doctrine that a gift, to Eq. 375, 100 A. 931. be irrevocable, ought to be perfected 3. Straton v. Wilson, 170 Ky. 61, by delivery and acceptance. See 185 S. W. 522; Grondenberg v. Gron- Wade V. Cantrell, 1 Head (Tenn.), denberg, 112 111. App. 615. ... 4. Ford Lumber & Mfg. Co. v. Curd, 96. Sparks v. Hurley, 208 Pa. 166, 150 Ky. 738, 150 S. W. 991, 43 L. R. 57 A 364 101 Am. St. E. 926 (trans- A. (N. S.) 685. fer of bank account). 5. Tillis v. Dean, 118 Ala. 645, 23 97. Miller v. McLean, 31 Ohio Cir. So. 804. _. -^ 8. Morris v. Westennan, 79 W. Va. 602, 92 8. E. 567. § 549 HUSBAND AKD "WIPE. 560 But it has been lield that no gift could be inferred where a spouse placed securities in a safe deposit box used by them jointly, though the securities were placed in an envelope marked with the name of the other spouse.' The abandonment of a wife by her husr band does not operate as a gift of money left in her possession.* But to prove the executed gift, so as to establish a bona fide trans- fer against the husband's creditors, involves, of course, the greater difficulty." The question whether or not there is a completed gift is for the jury.^" In determining the question all the evidence must be considered. ^^ § 548. Intervention of Trustee or Third Person. Though the common law did not permit a vnie to take a gift directly from her husband, it might validly be made through a third person who merely acted as a conduit for the title.^'' Such a mode of transfer did not affect its character as a gift.** It has been held that a husband buying land subject to a mortgage may pay the amount of such mortgage to the holder and by causing him to assign it to his wife, make her a valid gift of it.** § S4&. Property which may be subject of Gift; Generally. The wife may be the grantee, under due statutory formalities, of real estate from, her husband,*'' or of personal property,*" or of 7. In re Squibb 's Estate, 95 Mise. 363, 77 P. 71; Thompson v. CommiB- 475, 160 K. T. S. 836. sioners, 79 N. Y. 54; McMillan v. 8. Dawson v. Lindsay, 111 Mich. Peacock, 57 Ala. 127; Sherman v. 200, 69 N. W. 495, 3 Det. Leg. N. Hogland, 54 Ind. 578. A false recital 648. in the deed cannot make the convey- 9. Be Pierce, 7 Biss. (U. S.) 436. ance antenuptial or "in consideration 10. Davis V. Seaboard Air Line Co., of marriage." Phillips v. Phillips, 9 134 N. C. 300, 46 S. E. 515; Roberts Bush (Ky.), 183; Westmore v. Harz, y. Griffith, 112 Ga. 146, 37 S. E. 179; 111 La. 305, 35 So. 578. Martin v. Jennings, 53 S. C. 371, 29 16. V. G. Piaeher Art Co. v. Hutch- S- E. 807. ins, 41 App. D. C. 156; Smith v. Shep- 11. Clawson v. Clawson's Adm'r, pard, 2 Ga. App. 144, 58 8. E. 303; 25 Ind. 229. Succession of Turgeau, 130 La. 650, 12. Tucker v. Curtin, 148 F. 929, 78 58 So. 497 ; Le Blanc v. Sayers, 202 C. C. A. 557; Brown v. Brown, 174 Mich. 565, 168 N. "W. 445; Aylor t. Mass. 197, 54 N. E. 532, 75 Am. St. Aylor, 184 Mo. App. 607, 170 8. W. E. 292; Coulter v. Meining, 143 Minn. 704; Light v. Graham (Mo.), 199 S. 104, 172 N. W. 910. W. 570; Abbott v. Fidelity Trust Co., 13. Hamilton V. Eathbone, 175 U. S. 149 Mo. App. 511, 130 8. W. 1120; 414, 20 S. Ct. 155, 44 L. Ed. 219. Strothers v. McParland (Mo.), 194 8. 14. Betts V. Betts, 159 N. T. 547, W. 881; Finch v. Finch, 89 N. J. Eq. 64 N. E. 189. 563, 105 A. 205; Leitch v. Diamond 16. Corbett V. Sloan, 52 Wash. 1, 99 Nat. Bank, 234 Pa. 557, 83 A. 416; P. 1025; Nason v. Lingle, 143 Cal. Besterman v. Besterman, 263 Pa. 555, 561 GIFTS BETWEEN SPOUSES. § 550 real and personal property combined/^ or of community prop- erty.^* Kents and profits may be secured to her exclusive bene- ficial use.*' Tbe promissory note of a creditor or other third party may thus be legally transferred by the husband to his wife under some of the Married Women's Acts f and independently of such statutes on equitable grounds.^^ His voluntary settlement of choses or incorporeal personalty upon her is good, prima facie/^ and this may include an assignment of a claim due him.'* Lease- hold property may be assigned to the wife by way of gift.''* § 550. Bank Deposits. The husband may make a gift to his wife by depositing in some savings bank on his wife's separate account and by his acts bind- ing the bank to account to her.'° To constitute a valid gift by a husband to his wife of his bank deposit, there must be evidence of his intention to make the gift,'* which is not effectively made while he retains control.^' Therefore, no gift is shown merely by the fact that the wife draws interest on such a deposit,'* nor be- cause both spouses have a right to draw upon a deposit in their joint names,'' even where they have joint possession of the pass 107 A. 323; Walston v. Allen, 82 Vt. 549, 74 A. 225; In re Bushnell's Es- tate, 107 Wash. 331, 182 P. 89. 17. Wing V. Goodman, 75 111. 159; IndianapoUs E. v. McLaughlin, 77 111. 275. 18. Sullivan v. Fant, 51 Tex. Civ. 6, 110 S. W. 507. 19. Hutehinaon v. Mitchell, 39 Tex. 487. 20. Motley v. Sawyer, 38 Me. 68; Dillage v. Parks, 31 Barb. (N. Y.) 132; Slawson v. Loring, 5 Allen (Mass.), 340. And see Clough v. Ens- sell, 55 N. H. 279. But cf. Hoker v. Boggs, 63 111. 161. 21. TuUis V. Fridley, 9 Minn. 79. 22. Campbell v. Galbreath, 12 Bush (Ky.), 459. Such transfer is fre- quently good without formal assign- ment. Seymour v. Fellowes, 44 N. T. Super. 124. 23. Seymour v. Fellows, 77 N. T. 178. 24. Fox V. Hawks, L. E. 13 Ch. D. 822. 85. Fisk V. Cnshman, 6 Gush. 36 (Mass.) 20; Howard v. Windham Co. Sav. Bank, 40 Vt. 597; Sweeney v. Five Cents' Sav. Bank, 116 Mass. 384; Spelman v. Aldrich, 126 Mass. 113. Aliter, where the deposit is not in contravention of a husband's mari- tal rights and control. See McCub- bin V. Patterson, 16 Md. 179; Way v. Peek, 47 Conn. 23. 2G. Peninsular Sav. Bank v. Wine- man, 123 Mich. 257, 81 N. W. 1091, 6 Det. Leg. N. 1010; Hairston v. Glenn, 120 N. C. 341, 27 S. E. 32. 27. First Nat. Bank v. Taylor, 142 Ala. 456, 37 So. 695; In re Brown's Estate, 113 la. 351, 85 N. W. 617; Monoghan v. Collins (N. J.), 71 A. 617; Martin v. Munroe, 121 Md. 679, 89 A. 319. 28. Dodge v. Lunt, 181 Mass. 320, 63 N. E. 891. 29. Gish Baking Co. v. Leachman, 163 Ky. 720, 174 S. W. 492 L. E. A. 1915D 920; Staples v. Berry, 110 Me. 32, 85 A. 303 ; Schneider v. Schneider, 122 App. Div. 774, 107 N. T. S. 792. In a recent case where the husband § 550 HUSBAND AND WIPE. 562 books,** nor from a deposit in the wife's name, while withholding the bank book and making no express declaration of trust,'* even where the wife without authority takes from her husband's papera a bank book showing a deposit in her name,*^ or making a deposit in her name to enable her to care for the money he earns.** But where after making such a deposit he delivers the book to her and she accepts it there is an irrevocable gift,** even though his original intent was to defraud his creditors,*' as well as where after mak- ing the first deposit the wife makes others and he never claims the money,*® and where in making a joint deposit he created a right of survivorship.*' Where a savings bank deposit was in the joint names of spouses, owned equally and payable on either'a draft, it was held that neither could make a valid gift of more than his interest.** In New York it is held that a deposit made by a hus- band in the joint names of himself and his wife creates a right of survivorship in the fund, in the absence of evidence of another intention.*" She has no legal interest in it till his death.*" But where the account was made " payable to either or the survivor," it was held that she had an equal right to draw on the account, in deposited his money in a joint account 79 N. T. 8. 630, 12 N. T. Ann. Gas. in the names of himself and wife and 351, told her she could draw to the full 33. Monohau v. Monohan, 77 Vt amount "but if you do I will give 133, 59 A. 169, 70 L. E. A. 935; Mo- you hell," the court found it was his Cluskey v. Provident Inst, for Sav- intention to allow her the use of the ings, 103 Mass. 300. account to reasonable amounts only, 34. In re Holmes, 176 N. T. 603, being the equivalent of a power of at- 68 N. E. 1118 ; In re Beichert, 85 App. tomey and not an immediate gift, and Div. 619, 82 N. T. S. 1113. that he intended to give her what re- 35. Wipfler v. Detroit Pattern mained at his death. This purpose Works, 140 Mich. 677, 104 N. W. 545, being testamenetary in character and 12 Det. Leg. N. 309. therefore invalid as not being made in 38. In re Klenke '3 Estate, 210 Pa. the form required in case of wills, the 572, 60 A. 166. balance of the account at his death 37. Elick v. Cockins, 252 Pa. 56, belonged to his estate. Morristown 97 A. 125. Trust Co. V. Capstick (N. J.), 106 38. Wetherow v. Lord, 58 N. Y. S. Atl. 391. 778, 41 App. Div. 413. 30. Schwab v. Schwab, 177 App. 39. West v. McCuUough, 194 N. T. Div. 246, 163 N. T. S. 246. 518, 87 N. E. 1130; In re Thompson's 31. Getchell v. Biddeford Sav. Bank, Estate, 167 App. Div. 356, 153 N. T. 94 Me. 452, 47 A. 895, 80 Am. St. B. 8. 164; In re Mills' Estate, 93 Mise. 408. 43, 157 N. Y. S. 138. 32. Fairfield Sav. Bank v. Small, 90 40. Wegmann v. Kress, 141 N. T. 8. Me. 546, 38 A. 551; Slee v. Kings 525. County Sav. Inst., 78 App. Div. 534, 563 GIFTS BETWEEN SPOUSEa. § 551 addition to the survivorship, the quoted expression importing a gift." § 551. Necessity of Intention to make Gift. Whether gift or loan be the effect of a transaction is a question of intention, to be determined by the proof submitted,** especially where the evidence is oral.** The intelligent intent of the sup- posed donor, if it can be ascertained, will govern.** It has been repeatedly held, in chancery courts of this country, that gifts of personal property or voluntary conveyances of real estate from husband to wife are, as between themselves, valid, and such is now tho rule in most, but not all, of the States ; the Married Women's Acts in some jurisdictions creating a legal estate in the wife under Buch circumstances. The evidence of intention should be clear and distinct in all such cases.*" The evidence must show the donor's intention to part with both title and possession.*' No presumption of gift arises where a husband retains certificates of stock without delivery or a declaration of trust, though made out in the wife's name,*^ or where he purchases articles of personal adornment for her use.** The alleged donee has the burden of showing such intention.*" The testimony of the donee is compe- tent, and if uncontradicted, will sustain a judgment."" A hus- 41. Moore v. Fingar, 131 App. Div. Campbell v. Galbreath, 13 Bush (Ky.) 399, 115 N. T. S. 1035. 459 ; Hagin T. Shoaf, 9 Ala. App. 300, 42. The indorsement of a draft 63 So. 764 (eert. den., 64 So. 615) ; given in settlement of the wife 's leg- Gray v. Gray, 111 Me. 21, 87 A. 661 ; aey, and its deposit to the husband's Farrow v. Farrow, 72 N. J. Eq. 421, bank account, is insufBeient proof of 65 A. 1009 ; Keniston v. Keniston, 56 a gift to him, for this might be for Vt. 680; Beck v. Beck, 78 N. J. Eq. mere convenience of collection. Green 544, 80 A. 550. V. Carlill, 4 Ch. D. 282. 46. Wheeler v. Armstrong, 164 Ala. 43. Colvin v. Johnston, 104 La. 655, 442, 51 So. 268; Foxworthy v. Adams, 29 So. 274. 136 Ky. 403, 124 S. W. 381; Light v. 44. McGee v. MeGee, 78 N. J. Eq. Graham (Mo.), 199 S. W. 570; Beck 430, 79 A. 268 ; McMahon v. Cronin, v. Beck, 77 N. J. Eq. 51, 75 A. 228. 128 N. Y. S. 423. 47. Getchell v. Biddeford Sav. Bank, 45. Borst V. Spelman, 4 Comst. (TJ. 94 Me. 452, 47 A. 895, 80 Am. St. R. S.) 284; Coates v. Gerlach, 44 Pa. 408. 43; Jennings v. Davis, 31 Conn. 134; 48. Mains v. Webber's Estate, 131 George v. Spencer, 2 Md. Ch. 353; Mich. 213, 91 N. W. 172, 9 Det Leg. Doming v. Williams, 26 Conn. 226; N. 269. Reynolds v. Lansford, 16 Tex. 286; 49. LeBlane v. Sayera, 202 Mich. Pennsylvania, etc., Co. v. Neel, 54 Pa. 565, 168 N. W. 445. 9; Hunt v. Johnson, 44 N. Y. 27; 50. Kelly v. Kelly, 164 N. Y. 8. Sims V. Rickets, 35 Ind. 181; Kitchen 172. T. Bedford, 13 Wall. (V. S.) 413; § 552 HUSBAND AHD WIFE. 564 band's declarations to a third perison that he had made a gift are insufficient of themselves to establish it/^ but it is otherwise where accompanied by a delivery of the subject of the alleged gift,°^ or where accompanied by evidence that both parties considered the property hers/* or by conduct tending to corroborate his admis- sions.'* The circumstances under which the husband's transfer is made are always material. Thus a husband might have placed his earnings or property in his wife's hands for safe-keeping, and not as a gift to her, in which case title to the fund should be re- spected accordingly as between them ; or it might be regarded, per- haps, as bestowed for their joint benefit or that of the whole family upon due proof.°° Or the understanding might be that the trans- action was to stand upon mutual consideration or by way of se- curity."" Acts of the wife recognizing the husiband as owner of the subject of the gift are competent on the question of her accept- ance of it.°' § 552. Necessity and Nature of Delivery. To constitute a valid gift of personalty there must be a delivery of the thing given;'* delivery directly or through some third party, such as a trustee; delivery by acts parol, or under an in- strument in writing, such as a deed of gift. Delivery should be according to the subject-matter; imperfect delivery being per- mitted by way of an equitable assignment in the case of incorporeal but not of corporeal, personalty. The donee should accept cor- respondingly; though acceptance is preferable; and the mutual intention may be gathered from words, acts and mutual conduct.'* Where the husband gives corporeal property there should be some 51. Chambers v. MeCreery, 106 F. 175; Seibold v. Christian, 7 Mo. App. 364, 45 C. C. A. 333; Bauemschmidt 254, T. Bauemschmidt, 97 Md. 35, 54 A. 56. Grain v. Shipman, 45 Conn. 572. 637 ; Burns v. Burns, 133 Mich. 441, Where the evidence is conflicting as to ffS N. W. 1077, 9 Det. Leg. N. 662; a husband's object in making convey- In re Meehan, 59 App. Div. 156, 69 ance to his wife, the ordinary pre- N. T. S. 9; Pierce v. Giles, 93 111. sumption of a provision for her bene- App. 534. fit is not rebutted. Linker v. Linker, 52. In re Wise's Estate, 182 Pa. 32 N., J. Eq. 174. 168, 37 A. 936. 57. Gould v. Glass, 120 Ga. 50, 47 53. WiUiams v. Hoehle, 95 Wis. 510, S. E. 505. 70 N. W. 556 (piano). 58. Fritz v. Fernandez, 45 Fla. 318, 54. Hale v. Kennedy (Cal.), 183 34 So. 315. p. 733. 59. For the principles applicable to 55. Marshall v. Crutwell, L. E. 20 such gifts, see 3 Sch. Pers. Prop., Eq. 328; Adlard v. Adlard, 65 lU. Part V., eh. 8. 812; Edgerly v. Edgerly, 112 Mass. 565 GIFTS BETWEEN SPOUSES. § 552 visible change of possession manifested; and in gifts, as of furni- ture, of that which remains in the common dwelling-house, there may be difficulty in establishing a transfer.'" Mere expression of a wish that he should have it is not enough,"^ nor is a mere un- derstanding that the property was to be owned in common.^^ Such delivery must be unconditional, °^ and may be actual or construc- tive.** But a constructive delivery will not avail where an actual delivery is possible. Thus where a husband delivers to his wife the key of a box containing certificates of stock, which was in another room in the house, and she merely took the key and kept it on her key ring and did nothing more, it was held that there was no valid gift.*^ Likewise, a gift by a husband to his wife of an automobile is not shown by evidence of his statements that he intended it as a birthday present for her and that he gave her a duplicate garage key, where the car was continuously used in his business and his wife never used it except to go on a pleasure trip with him.*' The delivery may be qualified instead of abso- lute. But his reservation of a power to revoke or appoint to other uses does not impair the validity or efficiency of the transfer to his wife to hold until this power shall be executed; nor does it raise any imputation of bad faith in the transaction."' Delivery of a wife's notes to her husband may be inferred from the fact that they are found among his papers at his death, coupled with other evidence of her intention to make a gift.'* No gift can be inferred merely from the fact that a wife delivers her money ' to her husband,'^ or that she gives him authority to draw on her bank account." Under the West Virginia statute a wife ac- quires no title by gift to the personal property of her husband 60. Be Pierce, 7 Biss. (U. 8.) 426. 33 Okla. 121, 131 Pae. 237, 40 L. E. A. 61. Littlefield v. Perkins, 100 Me. (N. 8.) 901. 96 60 A. 707. C*- Eydzewski's Estate, 67 Pitts- 62. Blick V. Coekins, 253 Pa. 56, 97 burg L. J. 370. A. 125. 67. Jones v. Clifton, 101 IT. 8. 335. 68. Hancock v. Hancock (Ind.) Ill Such a power does not, in the event N. E. 336. of the husband's bankruptcy, pass to 64. Humphrey v. Ogden, 53 Colo. his assignee. 16. 309 135 P. 110; Butler v. Farmers' 68. Morey v. Wiley, 100 111. App. Nat. Bank, 173 la. 659, 155 N. W. 75. 999; Abegg v. Hirst, 144 la. 196, 69. Adoue v. Spencer, 62 N. J. Eq. 133 N. W. 838; Coulter v. Meining, 783, 49 A. 10, 56 L. K. A. 817, 90 143 Minn. 104, 172 N. W. 910; Jiles Am. St. E. 484. V. Jiles, 54 Pa. Super. 565. 70. Colmary v. Fanning, 124 Md. 65 Apache State Bank v. Daniels, 548, 93 A. 1045; In re Holmes, 176 N. Y. 603, 68 N. E. 1118. § 554: HUSBAND AND WIFE. 56ft delivered to her at the matrimonial domicile except by deed or will." § 553. Gift by Wife to Husband. A wife may make a valid gift to her husband,'* if it appears that such was her intention, and that she intended to part with her title to the property.'* As to such gifts fraud or undue influ- ence may be reasonably suspected ; and transactions of this sort are scrutinized by the courts with gerat care,'* such a gift will be en- forced if fair and reasonable, and not procured by fraud or im- position. '" They will be presumed to be valid prima facie as against a stranger.'* Where a partition deed conveys a wife's land to her husband, the intent to give it to him is a question of fact." The Virginia Married Women's Act does not take away the wife's power to make a valid gift to her husband,'* nor is it taken away by the Georgia statute requiring the approval of a court to validate her conveyances to him." Under the Missouri Married Women's Act her written transfer is required to validate such a gift.*" § 554. Presumptions; Husband's Gift to Wife. Where a husband causes title to his land to be taken in his wife's name, he is presumed to intend a gift to her,*^ even though 71. Evans v. Higgins, 70 W. Va. Merriam v. Harsen, 4 Edw. Ch. (N. 640, 74 S. E. ff09. T.) 70. 72. Evans v. Wells (Ark.), 212 S. 75. Fritz v. Fernandez, 45 Fla. 318, W. 328; Davis v. Davis, 93 Ark. 93, 34 So. 315. 124 S. W. 525; Morrison v. Diekey, 7G. Golding v. Gelding, 82 Ky. 51, S. 122 Ga. 353, 50 S. E. 175, 69 L. B. A. Ky. L. 806. 87; American Ins. Co. v. Bagley, 6 77. Carter v. Becker, 69 Kan. 524,, Ga. App. 736, 65 S. E. 787; Eea v. 77 P. 264; Mays v. Hannah, 4 Ky> Eea, 156 N. C. 529, 72 S. E. 573. Law, 50. 73. Denigan v. Hibemia Savings & 78. Throckmorton v. Throckmorton, Loan Soc, 127 Cal. 137, 59 P. 389 ; In 91 Va. 42, 22 S. E. 162. re Ford's Estate, 232 Pa. 179, 81 A. 79. Rich v. Eich, 147 Ga. 488, 94 200. S. E. 566. 74. Long V. Beard, 20 Ky. Law, 80. Craig v. Miners' Bank of Jop- 1036, 48 S. W. 158; Spradling v. li», 189 Mo. App. 389, 176 S. W. 433, Spradling, 101 Ark. 451, 142 S. "W. 81. Carpenter v. Gibson, 104 Ark- 848; Selle V. Eapp (Ark.), 170 S. W. 32, 148 S. W. 508; Jentzsch v. 1021; Cruger v. Douglas, 4 Edw. Ch. Jentzsch, 84 Ark. 322, 105 S. W. 572 f (N. T.) 433; Nedby v. Nedby, 1 E. Mayers v. Lark (Ark.), 168 8. W. L. & Eq. 106 ; Be Jones, 6 Biss. (TT. 1093 ; Hall v. Cox, 104 Ark. 303, 149 S.) 68; Converse v. Converse, 9 Eich. S. W. 80; O'Hair v. O'Hair, 76 Ark. Eq. (S. C.) 535; Stiles v. Stiles, 14 389, 88 S. W. 945; Wilson v. Warner, Mich. 72 ; Hollis v. FranQois, 5 Tex. 89 Conn. 243, 93 A. 533 ; Marchant v. 195; Wales V. Newbonld, 9 Mieh. 45; Young, 147 Ga. 3J7, 92 S. E. 863; 567 GIFTS BETWEEN SPOUSES. § 554 his original intent was to defraud creditors.'* The same presump- tion ari&es where he expends his money in improving her prop- erty,** and where he improves property held in their joint names, being presumed to intend a gift of half the value of the improve- ments in such case.** The same rule has been applied where a note in payment of his land is taken in the wife's name,*" and to money furnished her with which to buy real estate,*' and to the issuance in her name of corporate stock owned by him.*^ The pre- sumption arises whether the conveyance is direct or through a third person,** and will be indulged wherever necessary to the theory that the land is the wife's property.*" Unless it is over- thrown she may recover the premises from him in ejectment.*" The presumption may be rebutted,*^ and the husband has the EUiott v. Prater, 260 111. 64, 102 N. E. 1015 ; Schultz v. Schultz, 274 111. 341, 113 N. E. 638; Hanks v. Hanks, 114 111. App. 525 (affd., 75 N. E. 352, 217 HI. 359) ; Corcoran v. Corcoran, 119 Ind. 138, 21 N. E. 468, 12 Am. St. B. 390, 4 li. E. A. 782 ; Sims v. Eiek- ets, 35 Ind. 181, 9 Am. E. 679; Nail V. MUler, 9-5 Ky. 448, 15 Ky. Law, 862, 25 S. W. 1106 ; Jaquith v. Massa- chusetts Baptist Convention, 172 MaS3. 439, 52 N. E. 544; Siling v. Hendrickson, 193 Mo. 365, 92 S. W. 105; Solomon v. Solomon, 3 Neb. (Unof.) 540, 92 N. W. 124; Doan v. Dunham, 64 Neb. 135, 89 N. W. 640; Veeder v. McKinley-Lanning Loan & Trust Co., 61 Neb. 892, 86 N. W. 982 ; Kobarg v. Greder, 51 Neb. 365, 70 N. W. 921; Van Etten v. Paasumpsio Savings Bank, 79 Neb. 632, 113 N. W. 163; Singleton v. Cherry, 168 N. C. 402, 84 S. E. 698; Cropsey T. Crop- sey, 88 N. J. Eq. 491, 103 A. 1051; Warren v. Warren (N. J.), 104 A. 823 ; Weigert v. Schlesinger, 150 App. Div. 765, 135 N. T. S. 335; Kent v. Tallent, 75, 76 Okla. 185, 183 P. 422; Kjolseth v. Kjolseth, 27 S. D. 80, 129 N. W. 752; Tison v. Gass, 46 Tex. Cir. 163, 102 S. W. 751; Anderson v. Cercone (Utah), 180 P. 586; Effler v. Bums, 70 W. Va. 415, 74 S. E. 233 ; Perkinson v. Clarke, 135 Wis. 584, 116 N. W. 229 ; Gilmour v. North Pasadena Land & Water Co., 178 Cal. 6, 171 P. 1066 ; Lins v. Len- hardt, 127 Mo. 271, 29 8. W. 1025. The same rule is established in Georgia by statute. Stonecipher v. Kear, 131 Ga. 688, 63 S. E. 215. 82. Carter v. McNeal, 86 Ark, 150, 110 8. W. 222. 83. Hamby v. Brooks, 86 Ark. 448, 111 S. W. 277; Maciejewska v. Jar- zombek, 243 111. 136, 90 N. B. 231; Anderson v. Anderson, 177 N. C. 401, 99 8. E. 106; Selover v. Selover, 62 N. J. Eq. 761, 48 A. 522, 90 Am. St. E. 478. 84. Brady v. Brady, 86 Conn. 199, 84 A. 925; Foreman v. Citizens' State Bank, 128 Iowa, 661, 105 N. W. 163. 85. Adams v. Button, 156 Ky. 693, 161 S. W. 1100. 86. Hipkins v. Estes, 51 Wash. 1, 97 P. 1089. 87. Colmary v. Crown Cork & Seal Co. of Baltimore City, 124 Md. 476, 92 A. 1051. 88. Balster v. Cadiek, 29 App. D. C. 405; Andreas v. Andreas, 84 N. J. Eq. 368, 96 A. 39. 89. Shaw V. Bemal, 163 Cal. 262, 124 P. 1012. 90. Balster v. Cadiok, 29 App. D. C. 405. 91. Carle v. Heller, 18 Cal. App. 577, 123 P. 815; Gould v. Glass, 120 Ga. 50, 47 8. B. 505 ; Jackson v. Wil- liams, 129 Ga. 716, 59 8. E. 776; Pool V. PhiUips, 167 HI. 432, 47 N. E. 758; § 555 HUSBAND AND WIFE. 568 burden of proof.°^ The rebuttal evidence may be oral,"* and must be clear and convincing.'* Therefore, if the evidence ia con- flicting the presumption prevails."' Eebuttal evidence should be of facts antecedent to or contemporaneous with the transaction.'* Where the presumption is overcome there is a resulting trust in favor of the husband."' The marital relation raises no presump- tion that a gift from a husband to his wife is the result of undue influence."* Where a father places furniture in the house of a daughter about to be married, with the consent of her husband, it is presumed to be a gift, but may be shown to be a loan."" § 555. Wife's Gift to Husband in General. The rule is recognized under the statutes of many States, though in other States denied, that she may bestow her separate estate upon him by way of gift.^ A wife's delivery of her property to her husband or her act in taking title in his name does not of itself raise a presumption of a gift,* there being a pre- sumption that it was not a gift," and either that he holds as trustee for her,* or that it is a loan." The rule is the same where Toney v. Toney, 84 Or. 310, 165 P. 221; Dean v. Dean (Tex.), 214 S. W. 505; Walston v. Smith, 70 Vt. 19, 39 A. 252. 92. Huston v. Smith, 248 111. 3?6, 94 N. E. 63; Moran v. Neville, 56 N, J. Eq. 326, 38 A. 851. 93. Johnson v. Johnson, 115 Ark. 416, 171 S. W. 475; Monahan v. Mon- ahan, 77 Vt. 133, 59 A. 169, 70 L. B. A. 935. 94. Hubbard v. McMahon, 117 Ark. 563, 176 S. W. 122 ; Clavey v. Sehnadt, 272 HI. 464, 112 N. E. 360; Hood v. Hood, 83 N. J. Eq. 695, 93 A. 797; Waggy V. Waggy (W. Va.), 87 S. E. 178. 95. Andreas v. Andreas, 84 N. J. Eq. 368, 94 A. 415 (afEd., 96 A. 39). 96. Wood V. Wood, 100 Ark. 370, 140 S. W. 275; Delia v. Delia, 98 Ark. 540, 136 S. W. 937; Alexander v. Bosworth, 26 Cal. App. 589, 147 P. 607. 97. Duvale v. Duvale, 54 N. J. Eq. 581, 35 A. 750; Corey v. Morrill, 71 Vt. 51, 42 A. 976. 98. Crofford v. CrofEord, 29 Cal. App. 662, 157 P. 560. 99. Nichols v. Edwards, 16 Pick. (Mass.) 62. 1. Hinney v. Phillips, 50 Pa. 382; Pox V. Jones, 1 W. Va. 205 ; White v. Callinan, 19 Ind. 43; 2 Kent, Com. Ill, and cases cited, last ed.; Johnston v. Johnston, 1 Grant, 468; Gage V. Dauchy, 28 Barb. (N. T.) 622; Eoper v. Eoper, 29 Ala. 247. See Postnuptial Settlements. 2. Mahan v. Schroeder, 236 111. 392, 86 N. E. 97; Jackson v. Kraft, 186 lU. 623, 58 N. E. 298; In re Mahon's Estate, 202 Pa. 201, 51 A. 745 ; Tison V. Gass, 46 Tex. Civ. 163, 102 S. W. 751. 8. Denny v. Denny, 123 Ind. 240, 23 N. E. 519; Keed v. Tilton (N. J.), 105 A. 597; Elmer v. Tren- ton Trust & Safe Deposit Co., 76 N. J. Eq. 452, 74 A. 668 ; Adoue v. Spen- cer, 62 N. J. Eq. 782, 49 A. 10, 56 L. E. A. 817, 90 Am. St. E. 484. 4. Barber v. Barber, 125 Ga. 226, 53 S. E. 1017; Beddow v. Sheppard, 118 Ala. 474, 23 So. 662; Gamer v. Lankford, 47 Ga. 235, 93 S. B. 411; Burt V. Kuhnen, 113 Ga. 1143, 39 S. 669 GIFTS BETWEEN SPOUSES. § 555 the funds used by the husband were given him by another with the express intention that the land should belong to the wife," and where the title is taken in their joint names, so that the spouses did not take by the entirety in such case,^ and where the wife is in possession under a deed, and the husband gets in an outstanding title, for the purpose of bettering her title, paying for it with community funds and taking a deed to himself,* and where he mingles it with community funds so as to destroy the identity of the wife's separate funds,® and to personal property in which he has invested her funds and taken title in his name,^" or in their joint names.^^ The rule does. not hold where the wife's funds were loaned to the husband.^" No presumption of fraud arises from such a transaction.^* The husband has the burden of proving that there was a gift," by clear evidence." He must also E. 414; Buchanan v. Hubbard, 119 Ind. 187, 21 N. E. 538; Bristor v. Bristor, 93 Ind. 281; Black v. Black, 64 Kan. 689, 68 P. 662 Pribble v. HaU, 13 Bush (Ky.), 61; Oaks v. West (Tex.) 64 S. W. 1033; L. W. lievy & Co. V. Mitchell, 52 Tex. Civ. 189, 114 S. W. 172; Donovan v. 8e- linas, 85 Vt. 80, 81 A. 235; Bohannon T. Bohannon 's Adm'x, 29 Ky. Law, 143, 92 8. W. 597; Martin v. Eeming- ton, 100 Wis. 540, 76 N. W. 614, 69 Am. St. E. 941; Barter v. Holman, 152 Wis. 463, 139 N. W. 1128. 6. Krider v. Hartzell, 40 Pa. Super. 186. 6. Goldstein v. Coekrell (Tex.), 66 S. W. 878. 7. McLeod v. Venable, 163 Mo. 536, 63 8. W. 847. 8. Gebhart v. Gebhart (Tex.), 61 S. W. 964. 9. Title Ins. & Trust Co. v. Inger- soll, 158 Cal. 474, 111 P. 360. 10. Ireland v. Webber, 27 Ind. 256; Nagle's Am'r v. Nagle, 22 Ky. Law E. 1417, 60 S. W. 639 (deposit of wife's money in husband's name); Bajohr v. Bajohr (Mo.), 184 8. W. 76 (wife's money deposited in hus- band's name). 11. Gooch V. Weldon Bank & Trust Co. (N. C), 97 8. E. 53 (shares of Btock). 12. Blethen v. Bonner, 30 Tex. Civ. 685, 71 8. W. 290. 13. Donlon v. Donlon, 154 App. Div. 212, 138 N. Y. 8. 1039. 14. In re Carpenter, 179 F. 743; King V. King, 24 Ind. App. 598, 57 N. E. 275, 79 Am. St. E. 287; Buekel v. Smith's Adm'r, 26 Ky. Law, 494, 82 S. W. 235 ; GiUings v. Winter, 101 Md. 194, 60 A. 630; Stone v. Curtis, 115 Me. 63, 97 A. 213; Brady v. Brady (N. J.), 58 A. 931. Under the California statute a gift from a wife to her husband is pre- sumed to be the result of undue influ- ence, which he must disprove. White V. Warren, 120 Cal. 322, 49 P. 129; Title Ins. & Trust Co. v. IngersoU, 158 Cal. 474, 111 P. 360. Under the Georgia statute no gift is presumed, but the wife has the burden of showing fraud or undue influence. Third Nat. Bank v. Poe, 5 Ga. App. 113, 62 8. E. 826. Under the same statute the evidence of her intention to make a gift must be clear and free from doubt. Shackelford v. Orris, 135 Ga. 29, 68 8. E. 838. 15. In re McMonagle, 139 App. Div. 398, 124 N. Y. 8. 258; MeBam- mie V. Postelthwait, 78 W. Va. 273, 88 S. E. 833. § 555 HUSBAIO) AND WIFE. 570 show that it was freely and deliberately made and tirat the trans- action was fair.^" Where the question arises, then, whether the husband is enjoy- ing the wife's property by way of gift from her, or as her manag- ing attorney, it must be determined by evidence. In eidier case the advantage seems to be with husband and wife in all contro- versies with the creditor. The general rule still prevails, how- ever, that money transactions between husband and wife should be free from fraud, and not prejudicial to pre-exisiting creditors of the husband. The presumptions are not equally balanced in the different States. But presumptions of a gift from the wife are not to be strongly favored where the husband is held out to others as her agent. ^^ But it is fair to say that whenever she gives her property to him without agreement for any repayment, but for investment in his business, and to afford him credit with the world, and he so invests it with her knowledge and acquiescence, or takes title to real estate in his own name with her acquiesoense for a similar purpose, his bona fide creditors ought not, especially when his time and energies were of essential value to it, and changes of material or investment are such as to render identification of the property as hers impossible, to suffer afterwards, who had relied upon this capital, because of her attempt to recall the gift when she finds him embarrassed ; not even a special partner would have a right to do so.^° Furthermore, an investment, by the husband, • of the wife's separate means and property, whether in purchasing real estate or personal property for her separate use, is valid, if the rights of 16. Manfredo v. Manfredo, 191 Ala. Miss. 353; Mathews v. Sheldon, 53 3'22, 68 So. 157; Lamb v. Lamb, 18 Ala. 136; Besson v. Eveland, 26 N. J. App. Div. 250, 46 N. Y. S. 219; Mo- Eq. 468; Kaufman v. Whitney, 50 Elveen v. King, 88 S. C. 346, 70 S. E. Miss. 103. The wife may be her hus- 801; Turner v. Turner, 90 Conn. 676, band's creditor in bankruptcy. In re 98 A. 334. Blandin, 1 Lowell (TJ. S.), 543. 17. See Wales v. Newbould, 9 Mich. As to the wife 'a gratuitous under- 45; Miller v., Edwards, 7 Bush (Ky.), taking to subject her property to her 394; Patten v. Patten, 75 111. 446; husband's debts, her Pennsylvania Aldridge v. Muirhead, 101 TJ. S. 397. rule is that equity will not enforce it, 18. See Kuhn v. Stanafield, 28 Md. but leave the parties to their legal 210; Wortman v. Price, 47 111. 22; remedies. White's Appeal, 36 Pa. Mazouck V. Iowa Northern E. E. Co., 134. The husband's own waiver of a 30 Iowa, 559; Guill v. Hanny, 1 HI. statute exemption for the wife 's bene- App. 490; Liehtenberger v. Graham, fit will not aid his creditors against 50 Ind. 288 ; Brooks v. Shelton, 54 her. Hess v. Beates, 78 Pa. 429. '^71 GIFTS BETWEEN SPOUSES. § 556 creditors be not thereby impaired." But where he purchases real Qfltate or other property, and procures the title in his wife's name or in trust for her, when largely indebted, the validity of the transfer and its good faith may well be called in question, espe- cially if the means were not clearly furnished from her separate estate.^" As against creditors, therefore, where a husband receives and uses his wife's money with her consent, a gift is presumed,^^ and that she paid for it out of her separate estate.^'' In such case she must show an express promise to repay, or that it was a loan." The evidence to show these facts must be clear." i 556, Validity in General. Very slight or technical considerations are often held sufficient to support a gift to the wife in English chancery.^" That which belongs to the husband by common-law right, unaffected by equity or statute, unless he chooses to bestow it upon the wife, cannot constitute a consideration on her part for his further transfer of property to her.^' A husband may make a good gift causa mortis to his wife,^' but her testimony in such case, where no third person was present at the time of gift, should be received with caution.'" A plural wife may accept a gift from her husband or may get a title by adverse possession founded on such gift.'* 19. Jadcson v. Jackson, ffl U. 8. 24. Bennett v. Bennett, 37 W. Va. 122. 396, 16 8. E. 638; Keller v. Wash- 80. See Postnuptial Settlements, ington (W. Va.), 98 S. E. 880. ante, § 520, et seq.; Eldred v. Drake, 25. Peaehey, Mar. 8ettl. 233, 238; 43 Iowa, 569; Davidson v. Lanier, Butterfield v. Heath, 15 Beav. 414; 61 Ala. 318; Bowser v. Bowser, 82 Fitzmaurice v. Sadlier, 9' Ir. Ch. 595; Pa. 57 ; Snow V. Paine, 114 Mass. 520 ; Hewison v. Negus, 16 Beav. 594; Heam v. Lander, 11 Bush (K7.), 669. Bayspoole v. Collins, L. E. 6 Ch. 228; 21. Nihiser v. Nihiser, 127 Md. 451, Be Foster, 6 Ch. D. 87 ; Teasdale v. 96 A. 611; Eeed v. Eeed, 109 Md. 690, Braithwaite, L. E. 5 Ch. D. 630; Ex T2 A. 414; MeConville v. National parte Fox, L. E. 1 Ch. D. 302. Valley Bank, 98 Va. 9, 34 S. E. 891 ; 26. As, e. g., her earnings or family Crumrine v. Crumrine, 38 W. Va. 747, plate. Belford v. Crane, 1 C. E. Green 18 S. E. 960; Throckmorton v. (N. J.), 265. And see Terry v. "Wil- Throckmorton, 91 Va. 42, 32 8. E. son, 63 Mo. 493. 162. 27. Marshall v. Jaquith, 134 Mass. 22. Harr v. Shaffer, 52 W. Va. 207, 138. 43 S. E. 89 ; Shaw v. Bemal, 163 Cal. 28. Mellor v. Bank of Willows, 173 262, 124 P. 1012. Cal. 404, 160 P. 567. 23. Miller v. Cox, 38 W. Va. 747, 29. Ealeigh v. Wells, 29 Utah, 217, 18 8. E. 960; Homer v. Huffman, 52 81 P. 908, 110 Am. St. E. 689. W. Va. 40, 43 8. E. 132. § 769 PAEENT AND CHILD. 840 th« parent lost his services."' In actions against an employer the petition should state that the work was dangerous,"* and that the employment was without the consent of the parent."* , § 768. Evidence. The evidence in an action by a parent for injury to his minor child may cover the relationship of the parent and child,*" the expense of supporting and caring for the child while ill,*^ and the due care of the parent and child,"^ and the character of the danger- ous occupation."* Evidence is not admissible of an action for the same injury by the child unless expenses of care were claimed in it,°* or that plaintiff depended for a living on the wages of the child."" The burden is on the plaintiff to prove all the allegations of the complaint,"" and the burden is on the defendant to prove emanci- pation."' The unexplained presence of a young child in a danger- ous place makes out a prima facie case of n^ligence in the parents."' § 769. Questions for Jury. The question of the parent's negligence is for the in most eases,' and Jiiry: to be a member of the family) ; Bin- ford V. Jolmston, 82 Ind. 436, 42 Am. B. 508; Larson v. Berquist, 34 Kan. 334, 8 P. 407, 55 Am. E. 249; Webb T. Southern Ey. Co., 104 S. C. 89, 88 S. E. 297; Markus v. Thompson, 51 Tex. Civ. App. 239, 111 S. W. 1074; Woodward Iron Co. v. Curl, 153 Ala. 205, 44 So. 974 (employment and its dangerous nature). 57. Birmingham Ey., Light & Power Co. T. Chastain, 158 Ala. 421, 48 So. 85; Eeaves v. Anniston Knitting Mills, 154 Ala. 565, 45 So. 702. 58. Woodward Iron Co. v. Curl, 153 Ala. 205, 44 So. 974. 59. Eeaves v. Anniston Knitting Mills, 154 Ala. 565, 45 So. 702; Inter- state Coal Co. V. Trivett, 155 Ky. 795, 160 8. W. 731; Hetzel v. Wasson Piston Eing Co., 89 N. J. Law, 205, 98 A. 308. 60. Woodward Iron Co. v. Cook, 124 Ala. 349, 27 So. 455 (consent of em- ployment presumed) ; Brunke v. Mis- SO IS is the question of eanancipa- Bonri & K. Telephone Co., 112 Mo. App. 623, 87 S. W. 84; Dean v. Ore. E. & Nav. Co., 38 Wash. 565, 80 P. 842. 61. Sawyer v. Sauer, 10 Kan. 519. 62. Cameron v. Duluth-Superior Traction Co., 94 Minn. 104, 102 N. W. 208 ; Woeekner v. Erie Electric Motor Co., 182 Pa. St. 182, 37 A. 9136. 63. Huntsville Knitting Mills v. Butner (Ala.), 76 So. 54. 64. Sondheim v. Brooklyn Heights E. Co., 73 N. T. S. 543, 36 Misc. 339. 65. Gulf, C. & S. P. Ey. Co. v. John- son, 99 Tex. 337, 90 S. W. 164. 66. King V. Ploding, 18 Ga. App. 280, 89 S. E. 451 (that child given dangerous work without parent's con- sent). 67. Memphis Steel Const. Co. v. Lis- ter, 138 Tenu. 307, 197 S. W. 902. 68. Conway v. Monidah Trust, 52 Mont. 244, 157 P. 178. 69. Huntsville Knitting Mills v. 841' INJUEY TO CHILD. § 770 tion,"" but the child's competency to care for himself should not be so submitted when the father testifies that the child is com- petent and the child evidently appears such." § 770. Damages for Injuries or Enticement. In suits for injuries, such as for enticement, the measure of damages applied is liberal, though the rule is somewhat conflicting in different States. It is a general principle that where servants are enticed away, or forcibly abducted, the jury may award ample compensation for all the damage resulting from the wrongful act.'" A parent can recover damages for the prospective value of the services of a young child permanently injured or killed by an act of negligence ; ^' and a reasonable expectation of pecuniary benefit is favorably considered where the parent is old and infirm.'* Medical expenses for the care and cure of the child, witii the expense of nursing, are of course recoverable. And even the ex- pense of the mother's sickness, which was caused, in an extreme case, by the shock to her feelings, has been treated as a proper item of special damage.'"' So, it would seem, are the costs of prosecut- ing the suit.''" But the parent cannot recover for lacerated feel- ings, as well as for other injuries personal to the child, as in seduction suits.''' But local statutes will sometimes affect the Butner (Ala.), 76 So. 54; Koersen v. But see Williams v. Hutchinson, 3 Newcastle Electric St. Ej. Co., 1?8 Comat. 314. For the loss of service Pa. 30, 47 A. 851; Jones v. United for the remainder of the period of mi- Traction Co., 201 Pa. 346, 60 A. 837; nority, a parent may usually recover Muhlhause v. Monongahela St. Ky. if such loss necessarily result; ■while Co., 201 Pa. 244, 50 A. 940 ; Herron v. if the injury continue beyond that City of Pittsburg, 204 Pa. 509, 54 A. period further right is usually in the 311, 93 Am. St. E. 798; Trow v. child. Traver v. Eight Avenue E., 4 Thomas, 70 Vt. 580, 41 A. 652. Abb. App. 422; McDowell v. Georgia 70. Shawnee-Tecumseh Traction Co. E., 60 Ga. 320; Houston E. v. Miller, V. Campbell (Okla.), 155 P. 697. 49' Tex. 322; Hussey v. Eyan, 64 Md. 71. Henderson v. Detroit Citizens' 426. Street Ey. Co., 116 Mich. 368 74 N. 74. Duckworth v. Johnson, 4 H. & W. 525, 4 Det. Leg. N. 1205. ' N. 653 ; Franklin v. Southeastern E., 72. Gunter v. Astor, 4 Moore, 15 ; 1 3 H. & N. 211. Addison, Torts, 704 ; Lumley v. Gye, 75. Ford v. Monroe, 20 Wend. 210. 2 El. & Bl. 216} Magee v. Holland, 3 Such damages appear exceptional. Dutch. 86. Harford Co. v. Hamilton, 60 Md. 340. 73. Supra, § 760 ; Drew v. Sixth 76 Wilt v. Vickers, 8 Watts, 227. Avenue E. E. Co., 26 N. T. 49; Ford 77. Pa. E. E. Co. v. Kelly, 31 Pa. V. Monroe, 20 Wend. 210; Hoover v. St. 372; Sawyer v. Sauer, 10 Kan. Heim, 7 Watts, 62 ; Franklin v. South- 519 ; Cowden v. Wright, 24 Wend, eastern 77. E. Co., 3 Hurl. & Nor. 211. 429. But see, as to battery of a child, § 558 HUSBAND AND WIFE. 574 But it may be said generally that a gift by one spouse to the other once completed cannot be revoked or anuUed -without the mutual assent of donor and donee,*" and will not be set aside on a wife's remarriage after a divorce, though the gift was made in contem- plation of such divorce,*' but may be set aside if procured by fraud,*" or if made without knowledge of the donee's adultery.** The use of more than a persuasive argument to obtain a gift will invalidate it."" A wife is not estopped by acts subsequent to a void conveyance to her husband from recovering the property from him,°^ nor from successfully defending against a void note to him, even in the handiS of his indorsees."'' Where spouses make a con- traot whereby the wife, for a consideration, releases all rights for dower, alimony and maintenance, her later action for divorce and alimony, not defended by him, is not a rescission."* Where a contract between spouses is void or set aside, the consideration will be returned."* It was held otherwise where a husband, whose gift from the wife was set aside for fraud or duress, had incurred expenses in the care of the property which he never expected or asked to be reimbursed for.°° Where a deposit stands in the name of a wife, creating a presumption of a gift, his large money legacy in his will will not defeat the wife's right, though he left no prop- erty to pay the legacy."® The right to assail a deed from a hus- band to a wife because in violation of the Georgia statute requir- ing an order of court to validate a sale of the separate estate of the ■without the means of subsistence; but 50. (Ch. 1908), Schultze v. Schultze, here the statutes of Elizabeth would 73 N. J. Eq. 597, 75 A. 824 (affd., 74 apply. Feigley v. Feigley, 7 Md. 537. A. 1135). 46. 3 Sehoul. Pers. Prop., Part V., 51. Connar v. Leaeh, 84 Md. 571, ch. 3; Gamer v. Graves, 54 Ind. 188; 36 A. 591. James v. Hanks, 202 HI. 114, 66 N. 52. National Granite Bank v. Tyn- E. 1034. dale, 176 Mass. 547, 57 N. E. 1023, 47. West V. Burke, 165 App. Div. 51 L. E. A. 447. 667, 151 N. T. S. 329. 53. O'Day v. Meadows, 194 Mo. 588, 48. Womack v. Womack, 73 Ark. 92 S. W. 637, 112 Am. St. K. 542. 281, 83 S. W. 937 (motion to modify 54. Fay v. Fay, 165 Cal. 469, 132 P. opinion denied, 83 Ark. 381); Hursen 1040; Wilson v. Mullins (Ky.), 119 V. Hursen, 212 lU. 377, 72 N. E. 1034, S. W. 1180; Newby v. Cox, 81 Ky. 103 Am. St. E. 330; Stout v. Stout, 58, 4 Ky. Law, 744; lee v. lee, 26 165 Iowa, 553, 146 N. W. 474, L. E. Ky. Law, 1065, 83 S. W. 135. A. 1915 A. 711. 55. Hoag v. Hoag, 210 Mass. 94, 96 49. Evans v. Evans, 118 Ga. 890, N. E. 49. 45 S. E. 612; Warlick v. White, 86 66. In re Klenke's Estate, 210 Pa. N. C. 139, 41 Am. E. 453; Thomas v. 572, 60 A. 166. Thomas, 37 Okla. 784, 109 Pac. 825, 35 L. E. A. (N. S.) 124. 675 GIFTS BETWEEN SPOUSES. § 559 wife is personal to her, and cannot be exercised by a stranger to the title/' or by the husband's heirs " or creditors.^' Under the Louisiana statute, interspousal donations are always revokable except as against third possessors acquiring property by a prescription of ten years.®" By statute in the same State, gifts between spouses, except in the three cases specified by 'the statute, are void, even between the parties.'^ Under the Michigan statute a voluntary conveyance from a husband to a wife cannot be set aside by either party except for fraud."^ § 559. Gifts in Fraud of Creditors. A gift from one spouse to the other is valid against subsequent creditors of the donor,®* even though such donor subsequently has possession and use of the property,'* but not against those to whom the donor contemplates becoming indebted when he makes the gift.'" The mere fact that the husband owed money to the wife will not validate a conveyance by him to her made for the purpose of avoiding liability as indorser on a note not then due, where the wife knew of the fraudulent nature of the transaction." The fraudulent effect of a mere gift by husband to wife, which consists in placing the property beyond the reach of his creditors, is not averted by the fact that the wife did not know the gift was improper, so long as she knew he was indebted, nor, in general, does it appear that her knowledge is of consequence, since the creditor's intent is here the material point to consider." Even accumulations by labor and the natural produce of the fund may be reached by creditors, where the original fund was transferred to his wife in fraud of their rights by an insolvent husband, and by way of voluntary gift to her."^ 57. Scaife v. Scaife, 134 Ga. 1, 67 64. Swindell v. Swindell, 153 N. C. S. E. 408. 23, 68 8. E. 893. 58. Munroe v. Baldwin, 145 Ga. 215, 65. Lavigne v. Tobin, 52 Neb. 686, 88 S. E. 947. 73 N. W. 1040. 59. Williams v. Rhodes, 149 Ga. 170, 66. Strassburger v. MeGovem, 66 99 S. E. 531. Pittsburgh Legal Journal, 653. 60 Leverett v. Loeb, 117 La. 310, 67. Matson v. Melehor, 43 Mieb. 477. 41 So. 584. C!f. as to antenuptial settlement upon 61. Kelly v. Kelly, 131 La. 1034, 60 a wife, who knew her husband to be So. 671. embarrassed, but did not know he was 62. Judd V. Judd, 192 Mich. 198, insolvent, supra, Prewit v. Wilsoii, 103 158 N. W. 948. U. S. 32. 63. Moray v. Wiley, 100 111. App. 68. Hamilton v. Lightner, 53 Iowa, 75 • Pare v. Eenfro, 178 Ky. 143, 198 470. But intent to defraud in convey- S. W. 553; Sawyer v. Metters, 133 ing a farm does not necessarily im- Wis. 350 113 N. W. 682. pair the wife's rights to crops raised § 559 HUSBAND AND WIFE. 5Y6 The statute of 13 Eliz., ch. 5, is generally recognized throughout the United States; in some cases having been formally re-enacted; in others, claimed to be part of the common law transported hither by the first settlers ; and hence gifts of goods and chattels, as well as voluntary conveyances of lands, by writing or otherwise, are void when made with intent to delay, hinder, and defraud cred- itors, even though the gift or conveyance be to wife and children." For it is a maxim, both at the civil and common law, that the claims of justice shall precede those of affection.'^'' thereon. Sanders v. Chandler, 26 Minn. 3 Johns. Ch. 481 ; Pinney t. Fellows, 273. 15 Vt. 525; Simpson v. Graves, Eiley 69. a Kent, Com. 440, 441, and cases Ch. 232 ; Sexton v. Wheaton, 8 Wheat, cited; Bayard v. Hoffman, 4 Johns. (U. S.) 229; 1 Am. Lead. Cas. 1. Ch. 450; Montgomery v. Tilley, 1 B. 70. Cieero, de Off. I. 14, cited in 2 Mon. (Ky.) 157; Beade v. Livingston, Kent, Com. 441. 577 CONVEYANCES BETWEEN SPOUSES. § 560 CHAPTER XXVIL CONVEYAKCES AND MOETGAQES BETWEEN SPOUSES. Bkction' 560. Conveyances and Leases. 561. Mortgages. 562. Operation and Effect. 563. Transfers of Personalt;^. § 560. Conveyances and Leases- A conveyance, by husband and wife, of land belonging to the ■wife, to a third person, and a conveyance of the same land by such third person to the husband, vests the entire title in the husband."^ But a conveyance of lands by the wife directly to her husband, especially if it be voluntary, has been considered ineflFectual and void. And under the early Married Women's Acts her right to make such a conveyance was generally, though not universally, denied, and she must convey through a third person, her husband joining in the conveyance.'^ In many States the wife's convey- ance directly to her husband is absolutely void in law and equity; and the safer course must be to convey through a third party." N^ot only was the wife incompetent to convey at common law, but the husband could not take under such a conveyance.''* A convey- ance by a wife directly to her husband might in certain cases be enforced in equity,'^ where the husband acted in good faith, and 71. Merriam v. Harsen, 4 Edw. Ch. 11 Bush (Ky.), 241; Young v. Brown, (N. T.) 70; Durant v. Eitchie, 4 136 Tenn. 184, 188 S. W. 1149-. Mason (IT. 8.) 45; Garvin v. Ingram, 73. Kinnaman v. Pyle, 44 lud. 275; 10 Eich. Eq. (S. C.) 130; Bowen v. Postnuptial Settlements, ante, § 520. Sebree, 2 Bush (Ky.), 112. This is A deed not expressed on its face as a good conveyance, even though the discharging the lien of a mortgage third person be an adult son. Chicago held in trust for the wife does not V. McGraw, 75 111. 566. operate to extinguish, even though 72. White v. Wager, 32 Barb. (N. husband and wife joined in the con- T.) 250; Winans v. Peebles, 32 N. T. veyance. Klein v. Caldwell, 91 Pa. 423; Gebb v. Eose, 40 Md. 387; Pros- 140. ton V. Fryer, 38 Md. 221; Fowler v. 74. Elder v. Elder, 256 Pa. 139, 100 Trebein, 16 Ohio St. 493. But see A. 581; Buchanan v. Corson, 51 Pa. Eobertson v. Eobertson, 25 Iowa, 350; Super. 558. Hannaford v. Dowdle, 75 Ark. 127, 75. Johnson v. Jouchert, 124 Ind. 86 S. W. 818; Leach v. Eains, 149 105, 24 N. E. 580, 8 L. E. A. 795; Ind. 152, 48 N. E. 858; Wicks v. McCord v. Bright, 44 Ind. App. 275, Dean, 103 Ky. 69, 19 Ky. Law, 1708, 87 N. E. 654; Vicroy v. Vicroy, 20 44 S. W. 397; Kennedy v. Ten Broeck, Ky. Law, 47, 45 S. W. 75; Douglass 37 ' 560 HUSBAND AND WIFE. 578 ■with proper motives and purposes." Such a transaction will he more closely scrutinized by the courts than a similar conveyance hy the husband to the wife ; '' but in some States she may convey directly to him,'* even though the property was acquired before she had statutory power to convey it to him." She may do so by v. Douglass, 51 La. Ann. 1455, 36 So. 546; Alexander v. Shalala, 228 Pa. 297, 77 A. 554; Wicker v. Durr, 225 Pa. 305, 74 A. 64; Giffin v. Giffin (Tenn.), 37 8. W. 710; Hughey v. Mosby, 37 Tex. Civ. 76, 71 S. W. 395; Jarrell v. Crow, 30 Tex. Civ. 629, 71 S. W. 397; Kelley v. Dearman, 65 W. Va. 49, 63 S. E. 693; Smith v. Vineyard, 58 W. Va. 98, 51 S. E. 871. 76. Wood V. Wood, 100 Ark. 372, 172 S. W. 860; In re WiUiams, 4 Del. 401, 88 A. 716. 77. Hannaford v. Dowdle, 75 Ark. 127, 86 S. W. 818; McDonald v. Smith, 95 Ark. 523, 130 S. W. 515. 78. Wells V. Caywood, 3 Colo, 487; Postnuptial Settlements; Sample v. Guyer, 143 Ala. 613, 42 So. 106; Whittaker v. Van Hoose, 157 Ala. 286, 47 So. 741 ; Tyler v. Currier, 147 Cal. 31, 81 P. 319; Despaiu v. Wagner, 163 HI. 598, 45 N. E. 129; Stubbings V. Stubbings, 248 111. 406, 94 N. E. 54; Noel v. Fitzpatriek, 124 Ky. 787, 30 Ky. Law, 1011, 100 S. W. 321; Turner v. Shaw, 96 Mo. 22, 8 S. W. 897, 9 Am. St. R. 319; Glascock v. Glascock, 217 Mo. 362, 117 S. W. 617; Haguewood v. Britain, 273 Mo. 89, 199 S. W. 950; Butler v. Butler, 169 N. C. 584, 86 S. E. 507; Eea v. Eea, 156 N. C. 529, 72 S. E. 573 ; Lawshe v. Trenton Banking Co., 87 N. J. Eq. 56, 99 A. 617; Battle v. Claiborne (Ark.), 180 S. W. 584; Johnson v. Austin, 86 Ark. 446, 111 S. W. 455 ; Brandau v. McCurley, 124 Md. 243, 92 A. 540, L. E. A. 1915C, 767; Wilkinson v. Kneeland, 125 Mich. 261, 84 N. W. 142, 7 Det. Leg. N. 409; Chittenden v. Chitten- den, 22 Ohio Cr. Ct. 498, 12 O. C. D. 526; Teager v. Yeager, 82 Wash. 271, 144 P. 22. The Alabama statute permittiug conveyances by wives to third persons under certain restrictions, does not permit her to convey to her husband. Osborne v. Cooper, 113 Ala. 405, 21 S. 320, 59 Am. St. E. 117. Under that statute it has been held that a deed from a wife to her husband re- serving a reversion to her if she sur- vives him, but giving him power to convey, vested an absolute title in the husband. Manfredo v. Manfredo, 191 Ala. 322, 68 So. 157. Under the Georgia statute the ap- proval of a court is required to vali- date a transfer by the wife of her husband of her separate property. Gordon v. Harris, 141 Ga. 24, 80 S. E. 276; Buchannon v. James, 135 Ga. 392, 69 S. E. 543; Stoneoipher v. Kear, 131 Ga. 688, 63 S. E. 215; Car- penter V. Booker, 131 Ga. 546, 62 S. E. 983; Webb v. Harris, 124 Ga. 723, 53 S. E. 247; Sikes v. Bradley, 20 Ga. App. 470, 93 S. E. 111. Such a conveyance is void under the Louisiana statute prohibiting sales between spouses. Douglass v. Doug- lass, 51 La. Ann. 1455, 26 So. 546. Under the Tennessee statute pro- viding that a wife can convey as though sole only when she abandons or is abandoned by her husband, or when he is insane, she cannot convey directly to her husband when she is not within the specified classes. Wor- rell V. Drake, 110 Tenn. 303, 75 S. W. 1015. In that State, prior to a stat- ute permitting her to contract as sole, she could not convey to him even by a deed otherwise as required by law and in which he joined. Bailey v. Apperson, 134 Tenn. 716, 185 S. W. 710. 79. Smelser v. Meier, 271 Mo. 178^ 196 S. W. 22. 579 CONVEYANCES BETWEEN SPOUSES. § 560 any recognized form of conveyonoe,'" if executed as required by law." Sucli a conveyance must be subject to the rights of cred- itors whether antecedent or subsequent to the transaction ; '^ and where her right to the property is questioned by his creditors, she has the burden of showing her right affirmatively and distinctly.'* A husband's agreement to support the wife's children by a former marriage will support such a conveyance.** A conveyance from a wife to her husband through a third person will not be avoided for his coercion where the evidence is not clear.'" It must appear that his conduct toward her was of such a character as to preclude her resisting his influence.'" In Arkansas a conveyance by a wife to her husband passes an equitable interest only, the legal title remaining in her." A hus- band taking a deed from his wife has tbe burden of showing good faith, the want of undue influence, that the transaction was fair and reasonable, and the consideration adequate." Payment of a mortgage from a wife to her husband cannot be inferred from his failure to foreclose after their separation.'^ In Georgia transfers of property by a wife to her husband are not binding unless made with the consent of the superior court.^" An order giving such consent cannot be validly made in vacation.'^ The statute does not apply to a deed reconveying to the husband land conveyed to the wife as security for a loan.*^ The statute applies to transfers made while the spouses are separated, and the want of compliance •with the statute renders the deed void, and not merely voidable."* Under the New Jersey statute empowering a wife who has land in the State and who is living apart from her husband, who refuses to support her, to apply to a court for leave to dispose of her land 80. Powers v. Munson, 74 Wash. 88. McCord v. Bright, 44 Ind. App. 234, 133 P. 453. 275, 87 N. E. 654; Thompson v. 81. Funkhouser v. Fowler, 117 Tenn. Brozo, 92 Wash. 79, 159 P. 105. 539, 101 S. W. 769. 89. Stelts v. Martin, 90 S. C. 14, 82. McCabe v. Guido, 116 Miss. 858, 72 S. E. 550. 77 So. 801. 90. Webb. v. Harris, 124 Ga. 723, 83. Evans v. Bell (D. C), 48 Wash. 53 S. E. 247. L. R. 218. 91- Frank v. McEachin, 148 Ga. 858, 84. Sehroeder v. Smith, 249' 111. 574, 98 8. E. 497 ; Eoland v. Eoland, 131 94 N. E. 969. 6a. 579, 62 S. E. 1042. 85. Moorman v. Board, 11 Bush 92. Turner v. Woodward, 133 Ga. (Ky.'), 135. 467, 66 S. E. 160. Sfl. Kennedy v. Ten Broeck, 11 93. Eehols v. Green, 140 Ga. 678, Bush (Ky.), 241. . 79 8. E. 557. 87. Mathy v. Mathy, 88 Ark. 56, 113 S. W. 1012. § 560 HUSBAND AND WIFE. 580 as sole, except sucli as is given to tier by him, it is immaterial whose fault caused the separation.** Under the Kentucky statute relating to the sale of land for reinvestment, the court cannot order the sale of land of which a wife is the owner in fee.*° In Tennes- see it is held that a decree rendered in an ex parte proceeding by spouses to obtain leave to violate a restraint of alienation in a deed creating a separate estate in the wife is void for want of jurisdic- tion.'® Likewise it is the older rule that the husband cannot con- vey real estate to his wife directly, and without the intervention of a trustee.®^ The reason of this rule was the legal unity of husband and wife at the common law,®* while the statute of uses furnished a mode of conveyance through trustees.'* But the husband may make a valid conveyance to his wife through the medium of a third per- son.^ While it does not appear that a deed by husband to wife is of itself valid and operative in equity more than law, special cir- cumstances might induce a court of equity to give effect to it where a court of law could not; as by decreeing the husband a trustee for his wife ; not, however, without strict scrutiny where rights of creditors are infringed, nor in any case where the equity is not made apparent.^ Under some statutes he may convey directly to 94. In re Staheli, 78 N. J. Eq. 74, Hooper, 50 Me. 371. And see Albin 78 A. 206. V. Lord, 39 N. H. 196; Fowler v. 95. Chenault v. Chenanlt, 22 Ky. Trebein, 16 Ohio St. 493; Eansom v. Law, 122, 56 S. W. 728. Eansom, 30 Mich. 328 ; Wells v. Cay- 98. Travis v. Sitz, 135 Tenn. 605, wood, 3 Col. 487. 185 S. W. 1075. 1. A judgment lien against the 97. Voorhees v. Presbyterian Church, third party is not effectual against 17 Barb. (N. T.) 103; Eansom v. the wife. O'Donnell v. Kerr, 50 Bansom, 30 Mich. 328. How. Pr. (N. T.), § 324. And see 98. 1 Washb. Eeal Prop. 279. Huftalin v. Misner, 70 HI. 55. De- 99. 1 Eoper, Hus. & Wife, 53 ; stmction of unrecorded deeds will not Thatcher v. Omans, 3 Pick. (Mass.) invalidate the wife's title as against 521 ; 1 Washb. Eeal Prop. 279 ; Wms. the grantor and his heir. Dukes v. Eeal Prop. 185. The later American Spangler, 35 Ohio St. 119; Johnson cases are disposed to sustain all such v. Eoekwcll, 12 Ind. 76; Battle v. conveyances, when vrith valuable conr Claiborne (Tenn.), 180 S. W. 584. Bideration, upon equitable grounda In Arizona the common-law rule Winans v. Peebles, 32 N. T. 483 ; requiring the intervention of a trustee Putnam v. Bicknell, 18 Wis. 333; 2 to effectuate a transfer of property Story Eq. Juris., § 1204; Wallings- between spouses has never been ford V. Allen, 10 Pet. (TT. S.) 583. adopted. Luhrs v. Hancock, 181 U. In various States the trustee or in- S. 567, 21 S. Ct. 726, 45 L. Ed. 1005. termediate grantee is now dispensed 2. Loomis v. Brush, 36 Mich. 40; with altogether under statutes treat- Dale v. Lincoln, 62 111. 22; Aultman ing the wife as swi juris. Allen v. v. Obermeyer, 6 Neb. 260. 681 CONVEYANCES BETWEEN SPOUSES. § 560 her; and the deed (supposing it to have been properly recorded) will be good against all but injured creditors,* if not intended to avoid the necessity of administration at his death."" Under such a statute a husband may convey to his wife his interest in an estate by the entirety.* Such a transfer will destroy the tenancy, and give the wife sole title in severalty." In West Virginia a deed by a wife to her husband of real estate, while they cohabit, passes no title where he does not join.* In the same State, and in Arkansas and Delaware, a deed from him to her passes an equitable title, he holding the legal title in trust for her, without power to incumber it.'' His grantees take subject to the trust.* Under the Minnesota statute all contracts between spouses as to their real estate are void, even though made after their separation.* In Louisiana a deed by a husband to his wife of land to replace the value of real estate which is part of her paraphernal property sold by him, is valid.^" Since the statute in that State provides a means whereby wives may waive their rank of mortgage in favor of subsequent mortgages of their husbands, 8. Jewell V. Porter, 11 Fost. (N. H.) 34; Motte v. Alger, 15 Gray (Mass.), 322; Burdeno v. Amperse, 14 Mich. 91; Crowley v. Savings Union Bank & Trust Co., 30 Cal. App. 535, 159 P. 194; Koeh v. Bailee, 176 HI. App. 379; Merchants' & Laborers' Building Ass'n t. Scanlan, 144 Ind. 11, 42 N. E. 1008 ; Hellyer v. Hellyer (Iowa), 112 N. W. 196; Sproul v. Atchison Nat. Bank, 22 Kan. 336; Ice T. Ice, 26 Ky. Law, 1065, 83 S. W. 135 ; Wooden v. Wooden, 72 Mich. 347, 4 N. W. 460; Strauss v. Parshall, 91 Mich. 475, 51 N. W. 1117; Currier v. Teske, 84 Neb. 60, 120 N. W. 1015; Kent V. Tallent, 75 Okla. 185, 183 P. 422 ; Watts v. Bruce, 31 Tex. Civ. 347, 72 S. W. 258; Shorett v. Signer, 58 Wash. 695, 107 P. 1033; Eeagle v. Beagle, 179 Pa. 89, 36 A. 191. Under the Missouri statute a hus- band may convey to a wife through a third person an estate in land, to commence at his death and thereafter during her life, without creating any particular estate. O 'Day v. Meadows, 194 Mo. 588, 92 8. W. 637, 112 Am. St. K. 542. A later case in the same State holds that the same was true of a direct conveyance before the Married Women's Act. Carson v. Berthold & Jennings Lumber Co., 270 Mo. 238, 192 S. W. 1018. 3a. Eves v. Eoberts, 96 Wash. 99, 164 P. 915. 4. Hardwick v. Saizi, 46 Misc. 1, 93 N. T. S. 265; Mardt v. Seharmach, 65 Misc. 124, 119 N. T. S. 44ff. 5. Demerse v. Mitchell, 187 Mich. 683, 154 N. W. 22. 6. Smith V. Vineyard, 58 W. Va. 98, 51 S. E. 871. 7. Carter v. McNeal, 86 Ark. 150, 110 S. W. 222; Strieklin v. Moore, 98 Ark 30, 135 S. W. 360; Maupin v. Gains, 125 Ark. 181, 188 S. W. 552; Williams v. Betts (Del.), 98 A. 371; Swiger v. Swiger, 58 W. Va. 119, 52 S. E. 23. 8. Depue v. Miller, 65 W. Va. 120, 64 S. E. 740. 9. Phillips V. Baker, 68 Minn. 152, 70 N. W. 1082 (mortgage). 10. Provost V. Provost, 4 Mart. (0. 8.) (La.), 506; Pons v. Yazoo & M. V. R. Co., 122 La. 156, 47 So. 449. § 562 HUSBAND AND WIFE. 582 they cannot do so by making in a notarial act an unfounded acknowledgment of payment by ber husband of paraphernal funds converted to bis own use, with authority to the recorder to erase the mortgage from the record.^' Under some statutes the wife may lease directly to her husband/'' and the husband, perhaps, to tbe wife ; and bere, too, the medium of a trustee may be invoked by way of assignment. Practical difficulties may arise, however, in suing upon the covenants as between husband and wife directly, so contrary are all such trans- actions to tbe old rule of coverture.^* § 561. Mortgages. A mortgage by a husband to bis wife is now usually held valid.** A wife may acquire and foreclose a mortgage on her husband's property, even though she joined to release dower.^^ The same is true where she pays off his note and mortgage and takes an assign- ment." § 562. Operation and Effect. Where a husband conveys property to his wife, tbe presumption that be intends a conveyance of the beneficial as well as the legal title is very strong.*^ Sucb a conveyance vests title in ber as against her husband and those claiming under him, and is subject to her conveyance or devise/' even though be remains in possession of and farms the land and pays taxes, unless be regains title by adverse possession,*' or even if the husband has used community 11. Equitable Securities Co. v. Tal- 73 N. W. 177; Oliver v. Sample, 72 bert, 49 La. Ann. 1393, 22 So. 763; Kan. 582, 84 P. 138. Tobin V. Wliite, 142 La. 84, 76 So. 248. 18. Milam v. Coley, 144 Ala. 535, 12. Albin v. Lord, 39 N. H. 196; 39 So. 511; Donnelly v. Tregaakis, America Bank v. Banks, 101 IT. S. 240. 154 CaL 261, 97 P. 421; Shea v. Mc- 13. Jeune v. Marble, 37 Mich. 319; Mahon, 16 App. D. C. 65; In re supra, % 411. Pieper's Kstate, 45 Iowa, 373, 124 N. 14. Cort V. Benson, 159 Iowa, 218, W. 181; English v. English, 229 Mass. 140 N. W. 419. 11, 118 N. E. 178 ; Haines v. Koyd- 15. Crosby v. Clem, 209 Mass. 193, house, 83 N. J. Eq. 675, 93 A. 190. 95 N. E. 297 ; Youmans v. Loxley, 56 Where a grantor had previously ex- Mich. 197, 22 N. W. 282 ; Graham ecuted deeds to a husband which were V. Lamb, 120 Mich. 577, 79 N. W. not recorded, and where a wife re- 804, 6 Det. Leg. N. 276. corded the deeds to her, it was held 16. Pitcher v. GrifBths, 216 Mass. that she was entitled to a cancellation 174, 103 N. E. 471. of the first deeds. BaU v. Ball, 97 17. In re Poss, 147 F. 79fl; Me- App. D. 347, 89 N. Y. S. 1046; Stolto Cartney v. Pletcher, 11 App. D. C. 1; v. Karren (Tex.), 191 S. W. 600. McComb V. McComb, 241 HI. 453, 89 19. Bias v. Eeed, 169 Cal. 33, 145 N. E. 714; Eoper v. Getman (Iowa), P. 516. 583 CONVEYANCES BETWEEN SPOUSES. § 563 funds to buy it,"" and even thougli she later abandons him for justifiable cause.^^ She may be shown to hold it in trust ^' She may acquire a life estate in his land by a deed in which she joins which reserves to both spouses life estate in the granted property.^* A wife taking property from her husband for a nominal consider- ation takes only his interest, and is not a bona fide purchaser for value. ^* In the absence of statute the want of record does not affect the validity of a conveyance, as between the parties,"" but as against third persons the deed must be recorded to be effectual.'* § 563. Transfers of Personalty. In some States transfers of personal property between spouses are valid."^ In such case the transferee may replevy it from those wrongfully seizing it as the property of the transferor.''' Where such transfers are not valid at law equity will sometimes enforce them."* It has been held that a wife holding a valid mortgage of her husband's personal property may have the statutory remedy against an officer attaching it as the property of the husband.*" A transfer by a husband to a wife through a third person has been upheld where both bills of sale were handed to her without having been actually in the hands of th« third person.*^ Under the N^orth Carolina statute a transfer of an insurance policy for the benefit of the wife is within its requirement that contracts between the spouses impairing or altering the body or capital of her personal estate for more than three years to be in writing and acknowledged 20. Bott V. Wright (Tex.), 132 8. 27. /71 re Hoffman, 199 F. 448 ; V. G. W. 960. Fischer Art Co. v. Hutchins, 41 App. 21. Purcell v. PurceU, 17 Det. Leg. D. C. 156; Butler v. Farmers' Nat. N. 594, 127 N. W. 310. Bank, 173 la. 659, 155 N. W. 999 ; 22. Wilson v. Wilson, 86 Md. 638, Sherman v. Davenport, 106 la. 741, 39 A. 276; Walston v. Smith, 70 Vt. 75 N. W. 187; Kraft v. Kraft, 70 19, 39 A. 252; Oliver v. Sample, 72 Minn. 144, 72 N. W. 804; Pedrick Kan. 582, 84 P. 138. v. Kuemmell, 74 N. J. 379, 65 A. 906; 23. Eeigel v. Eeigel, 243 111. 626, 90 Connar v. Leach, 84 Md. 571, 36 A. N. E. 1108. 591. 24. Acker v. Pridgen, 158 N. C. 28. Faddis v. WooUomes, 10 Kan. 337, 74 S. E. 335; Morgan v. North- 56. ern Pac. Ey. Co., 50 Wash. 480, 97 P. 29. Thomas v. Harkness, 13 Bush 510; Perkinson v. Clarke, 135 Wis. (Ky.), 23; Kulin v. HeUer, 69 N. J. 584, 116 N. W. 229. Law, 33, 54 A. 519. 25. Tyler v. Currier, 147 Cal. 31, 30. Duggan v. Wright, 157 Mass. 81 P. 319. 228, 32 N. E. 159. 26. Austin Clothing Co. v. Posey, 31. Garwood v. Garwood, 56 N. J. 105 Miss. 720^ 64 So. 5, 1 A. L. B. Eq. 265, 38 A. 954. 13. § 563 HUSBAND AND WIFE. 584 in a certain way.*^ The Missouri statute requiring the written assent of the wife to enable her husband to pass title to her per- sonal property is not complied with where she delivers to him her note indorsed in blank,** nor where the fact that she joins with him in a deed of her property and permits the grantee to pay in part with a note payable to her husband.** Except as modified by the Louisiana Act, No. 94 of 1916, a wife in that State may not con- vey her paraphernal property to her husband in trust for a third person for life.*" 32. Sydnor v. Boyd, 119 N. C. 481, 34, McGregor t. Pollard, 66 Mo. 26 S. E. 92, 37 L. E. A. 734. App. 324. S3. Case v. Espenschied, 169 Mo. 35. Marks t. Loewenberg, 143 La. 215, 69 S. W. 276, 92 Am. St B. 196, 78 So. 444. fi33. 585 CONVEYANCES TO SPOUSES. § 564 CHAPTER XXVIII. CONVEYANCES TO SPOUSES. Sbction 564. Estate by the Entirety in Land. 565. Estate by the Entirety in Personalty. 566. Essentials of Estate by the Entirety. 567. Possession as Between Sponges. 568. Effect of Partition and Divorce. 569. Effect of Statutes. 570. Spouses as Tenants in Common. 571. Spouses as Joint Tenants. 572. Eights of Creditors. 573. Conveyance or Mortgage. 574. Eule in Equity as to Gift or Conveyance to Spouses ; In General. 575. Resulting Trust. 576. Effect of Purchase at Judicial Sale. 577. As to Insurance on Husband's Life in Favor of Wife. 578. Equitable Belief. § 564. Estate by the Entirety in Land. It may here be added that, at the common law, a conveyance of land to husband and wife and their heirs vests the entirety in each of them; and upon the death of one the survivor takes the whole estate, discharged of the other's debts, and to the exclusion of the heirs of the deceased.'* The tenancy may be created by a 36. Wright v. Sadler, 20 N. Y. 320; Euaaell (N. C), 101 S. E. 495; Mait- Banton v. Campbell, 9 B. Mon. (Ky.) ten v. Barley, 174 Ind. 620, 92 N. E. 587; Gilson v. Zimmerman, 12 Mis. 738; Dotaon v. Faulkenberg, 186 Ind. 385; Bates v. Seely, 46 Pa. 248; 417, 116 N. E. 577; Tharp v. Updike, French v. Mehan, 56 Pa. 286; Eobin- 55 Ind. App. 452, 102 N. E. 855; son V. Eagle, 29 Ark. 202 ; Marburg Holmes v. Holmes, 70 Kan. 892, 79' P. V. Cole, 49 Md. 402 ; Fisher v. Provin, 163 ; Louisville v. Coleburne, 108 Ky. 25 Mich. 347; Johnson v. Austin, 86 420, 22 Ky. Law, 64, 56 S. W. 681; Ark. 446, 111 S. W. 455; Johnson v. Frey v. McGraw, 127 Md. 23, 95 A. Johnson, 122 Ark. 363, 183 S. W. 960; Lang v. Wilmer, 131 Md. 215, 967 ; Maxey v. Logan, 131 Ark. 593, 101 A. 706 ; Woodard v. Woodard, 216 198 S. W. 270 ; Eobertson v. Eobinson, Mass. 1, 102 N. E. 921 ; Hoag v. Hoag, 87 Ark. 367, 112 S. W. 883; Naler v. 213 Mass. 50, 99 N. E. 521; Appeal of Ballew, 81 Ark. 328, 99 S. W. 72; Lewis, 85 Mich. 340, 48 N. W. 580, McWhorter v. Green, 111 Ark. 1, 162 24 Am. E. 94; W. C. Ellis Co. v. S. W. 1100; Kunz v. Kurtz, 8 Del. Walker, 101 Miss 326, 58 So. 97; Ch. 404, 68 A. 450; Marshall Wilson v. Frost, 186 Mo. 311, 85 S. V. Lane, 27 App. D. C. 276; W. 375, 105 Am. St. E. 619; Moss v. English V. English, 66 Pla. 437, Ardrey, 260 Mo. 595, 169 S. W. 6; 63 So. 822; Kron v. Kron, 195 Holmes v. Kansas City, 209' Mo. 513, 111. 181, 62 N. B. 809 ; Alles v. Lyon, 108 S. W. 9 (reh. den., 108 S. W. 216 Pa. 604, 66 Atl. 81; Odum v. 1134; Otto f. Stifel's Union Brewing § 564 HUSBAND AND WIFE. 586 joint devise to spouses/' and an equitable estate by tbe entirety- Co. V. Saxy, 273 Mo. 159, 201 S. W. 67, L. B. A. 1918C, 1009; Burke v. Murphy, 275 Mo. 397, 205 S. W. 32; Frost V. Frost, 200 Mo. 474, 98 S. W. 527; Hume v. Hopkins, 140 Mo. 65, 41 S. W. 784; Ashbaugh v. Ashbaugh, 273 Mo. 353, 201 S. W. 72; Edmond- son V. Moberly, 98 Mo. 523, 11 S. W. 990; Murchison v. Fogleman, 165 N. C. 397, 81 S. E. 627; Gina v. Ed- mundson, 173 N. C. 85, 91 S. E. 696; Harris v. Carolina Distributing Co., 172 N. C. 14, 89 S. E. 789; Dorsey v. Kirkland, 177 N. C. 520, 99 S. E. 407; Morton v. Blades Lumber Co., 154 N. C. 278, 70 S. E. 467; Bay v. Long, 132 N. C. 891, 44 S. E. 652; Kimble v. Newark, 91 N. J. 249, 102 A. 637; In re McKelway's Estate, 221 N. T. 15, 116 N. E. 348; Kimble T. Newark 91 N. J. 249, 102 A. 637, L. B. A. 1918E, 793 (cit- ing, with approval, Hardenberg v. Hardenberg, 10 N. J. L. 42, 18 Am. Dee. 371) ; VoUaro v. VoUaro, 129 N. Y. S. 43; Tillman v. Lewisburg & Northern E. Co., 133 Tenn. 554, 182 8. W. 597, L. E. A. 1916D, 259; Price V. Pestka, 54 App. Div. 59, 66 N. T. 8. 297; Smith v. Bussell, 172 App. Div. 793, 159 N. T. S. 169; Clay V. Bobertson, 30 Okla. 758, 120 P. 1102; Oliver v. Wright, 47 Ore. 322, 83 P. 870; Chase v. McKenzie, 81 Ore. 429, 159 P. 1025. An "estate by entireties" is one held by husband and wife by virtue of title acquired by them jointly after marriage. In re Ehodes' Estate, 232 Pa. 489, 81 A. 643 ; McCreary v. McCorkle, 54 S. "W. 53; Young v. Brown, 136 Tenn. 184, 188 8. W. 1149; Stieff Co. v. Ullrich, 110 Md. 629, 73 A. 874; Alsop v. Fedarwisch, 9 App. D. C. 408; Hud- son's Heirs v. Hudson's Adm'r (Ky.), 121 8. W. 973. The venerable estate known as an estate by entireties may be out of harmony with modem conditions but it is still recognized. Fundamentally the estate rests on the legal unity of husband and wife. It is, therefore, a unit, not made up or divisable parts subsisting in different natural per- sons, but is an indivisible whole vested in two persons actually distinct, yet to legal intendment one and the same. Each is seised of the whole estate from its inception, and upon the death of one, while the right of survivorship remains to the other, that other takes no new title or estate. Beihl v. Mar- tin, 236 Pa. 519, 84 Atl. 953, 42 L. E. A. (N. 8.) 555. A tenancy ty the entirety is not greater than any other estate in fee. Simmons v. Meyers (Ind.), 112 N. E. 31. An administrator of a deceased hus- band, tenant by the entirety, has no right of action for a trespass com- mitted prior to the death of his intes- tate. 8pruill V. Branning Mfg. Co., 130 N. C. 42, 40 8. E. 824. A release of a 'mortgage on the hus- band 's land, the mortgage being in the form of an absolute deed, will not create an estate by the entirety, though to spouses jointly Haak Lumber Co. V. Crothers, 146 Mich. 575, 109 N. W. 1066, 13 Det. Leg. N. 957. Where a husband owning mort- gaged land executed a deed in which his wife joined, conveying the land to a third person who contracted to reconvey to the husband and wife on payment of a specified sum, and the wife made all the payments and sur- vived the husband, she acquired the property by right of survivorship. Eobson V. Townley, 176 Mich. 581, 142 N. W. 756. Bahendum to her heirs. It has been held that a deed to spouses will not create an estate by the entirety where the habendum is to her heirs, she being a remarried widow and both having children by former marriages. FuUager v. Stockdale, 138 Mich. 363, 101 N. W. 576, 11 Det. Leg. N. 605. 37. Booth V. Fordham, 185 N. Y. 535, 77 N. E. 1182. 587 CONVEYANCES TO SPOUSES. § 564 may be created by a joint contract to their buyer to sell land." A wife's deed to her husband of an undivided half in land, with a declared intention to create an estate by the entirety, has been held to have that effect.^' They do not take by moieties. The theoretic unity of husband and wife occasioned this rule. It applies only to conveyances made to them during coverture. In the same way a conveyance to husband and wife and a third person gives only a moiety to husband and wife,*" and where the conveyance is made to several persons, two of whom are husband and wife, these two take their portion as tenants by entirety likewise, whether the deed described them as husband and wife or not.*' Nor can the wife maintain ejectment alone, or an action for use and occupation as to such premises.*^ Where the wife has an estate for life, and husband and wife are seised of the remainder in entirety, the estate for life does not merge in the estate in remainder.*^ Where, again, the conveyance is to her for life, with remainder to her husband, and, in case he does not survive her, to his heirs, the wife cannot claim the whole by right of survivorship.** And if the equitable title to land is in the wife, it cannot, of course, be conveyed to husband and wife so as to bar her rights.*" But if lands descend to A., B., and 0., they each take a third part, though A. and B. happen to be husband and wife.*' Since in theory the spouses each own the entire estate, no new estate accrues to the survivor which can be subjected to an inherit- ance tax.*^ 38. In re Berry, 247 F. 700 ; Eoaeh 43. Bomar v. MuUins, 4 Eich. Eq. V. Eichardson, 84 Ark. 37, 104 S. W. (S. C.) 80. And see Brinton v. Hook, 538 ; Comfort v. Eobinson, 155 Mich. 3 Md. Ch. 477. 143, 118 N. W. 943, 15 Det. Leg. N. 44. Eiggin v. Love, 73 111. 553. 951^ 45. Moore v. Moore, 12 B. Mon. 39. In re Horler's Estate, 180 App. (Ky.) 651. And see Hicks v. Cochran, Div. 608, 168 N. T. S. 221. 4 Edw. Ch. (N. Y.) 107 ; Barncad v. 40. See 1 Washb. Eeal Prop. 278; Kuhn, 36 Pa. 383; Wright v. Sadler, Wms. Eeal Prop. 184. 20 N. T. 320 ; Wales v. Coffin, 13 Allen 41. Hulett V. lulon, 57 Ind. 412. (Mass.), 213; 1 Washb. Eeal Prop. 42. Allie V. Sehmetz, 17 Wis. 169. 278, and cases cited. And see Torrey v. Torrey, 4 Kern. 46. Knapp v. Windsor, 6 Cush. 430; Clark v. Thompson, 12 Pa. 274; (Mass.) 156. Wentworth v. Eemiek, 47 N. H. 226; 47. Palmer v. Mansfield, 222 Mass. Freeman v. Barber, 1 Hun (N. T.), 263, 110 N. B. 283, L. B. A. 1916C, 433. 677. § 565 HUSBAND AND WIPE. 588 § 565. Estate by the Entirety in Personalty. Where a promissory note, too, or other evidence of a debt, or personal security, is made payable to a busband and wife jointly, it belongs to tbe survivor, and may be sued upon accordingly ; ** but not if tbe facts are inconsistent with that presumption of joint- ownership which a technical expression of this sort would afford ; ** and the drift of modern policy is unfavorable to extending to per- sonalty this rule of survivorship, applicable originally to real estate.^" Nevertheless, some courts hold that a conveyance of personal property to spouses jointly creates an estate by the entirety,^^ even in Wisconsin, where such tenure in real property has been abolished.^^ But it is otherwise in New York.^* The courts are not agreed whether a mortgage to spouses jointly will create the estate. The affirmative is held in Massachusetts and New York, and seems the better view."* The contrary has been held in Missouri and Michigan."^ 48. Abahire v. State, 53 Ind. 64, and cases cited. 49. Sanford v. Sanford, 45 N. Y. 723 ; Johnson v. Lusk, 6 Cold. (Tenn.) 113. 50. Wait V. Bovee, 35 Mich. 425. 51. Flaherty v. Columbus, 41 App. D. C. 525; Baker v. Baker, 123 Md. 32, 90 A. 776 (bank deposit) ; Truitt v. Battle Creek, 205 Mich. 180, 171 N. W. 338; In re Greenwood's Estate (Mo.), 208 S. W. 635; Eezabek v. Rezabek, 196 Mo. App. 673, 192 8. "W. 107; Craig V. Bradley, 153 Mo. App. 586, 134 8. "W. 1081 ; Jones v. W. A. Smith & Co., 149 N. C. 318, 62 8. E. 1092; Beck V. Beck, 77 N. J. Eq. 51, 75 A. 228; 1% re Niles, 142 App. Div. 198, 126 N. T. S. 1066; Blick v. Cockins, 252 Pa. 56, 9'7 A. 125; In re Klenke's Estate, 210 Pa. 572, 60 A. 166 (bank deposit); In re Sloan's Estate, 254 Pa. 346, 98 A. 966; In re Parry's Estate, 188 Pa. 33, 41 A. 448, 43 W. N. C. 62, 49 L. E. A. 444, 68 Am. Bt. E. 847 (letter of credit) ; Smith v. Haire (Tenn.), 181 S. W. 161; Brewer V. Bowersox, 92 Md. 567, 48 A. 1060 (certificate of deposit) ; Temple v. Bradley, 119 Md. 602, 87 A. 394 ; Am V. Am, 81 Mo. App. 133 (insurance policy) ; (igflO) In re Kaupper, 141 App. Div. 54, 125 N. T. S. 878 (afEd., 201 N. T. 534, 94 N. E. 1095. Thus where a husband, tenant by the entirety, held the income of the estate with the intention of applying it to the payment of the mortgage on the estate when the income should amount to $5,000, the surviving wife was held to take the accumulation. Col- lins V. Babbitt, 67 N. J. Eq. 135, 58 A. 481. 52. Dupont V. Jonet, 165 Wis. 554, 162 N. W. 664. 53. In re McKelway's Estate, 231 N. Y. 15, 116 N. E. 348 ; In re Thomp- son 's Estate, 81 Misc. 86, 142 N. Y. S. 1064; Baumann v. Guion, 21 Misc. Eep. 120, 46 N. Y. S. 715; In re Baum, 121 App. Div. 496, 106 N. Y. 8. 113. 54. Boland v. McKowen, 189 Masa. 563, 76 N. E. 206, 109 Am. St. E. 663 ; In re Eapelje, 66 Misc. 414, 123 N. Y. 8. 287. 55. McLeod v. Free, 96 Mich. 57, 55 N. W. 685; Luttermoser v. Leuner, 110 Mich. 186, 68 N. W. 117; John- ston V. Johnston, 173 Mo. 91, 73 8. W. 202, 61 li. E. A. 166, 96 Am. St. E. 486; Ludwig v. Brunner, 203 Mich. 556, 169 N. W. 890. 589 CONVEYANCES TO SPOUSES, § 567 § 566. Essentials of Estate by the Entirety. In an estate by the entirety there must be imity of estate, unity of possession, unity of control, and unity of conveying."" To create the estate of entirety the relation of husband and wife must legally exist between the grantees at the time of the conveyance," and if the relation in fact exists at that time, the deed need not so recite."* The deed must grant a joint estate to the spouses, and one granting to each specified undivided parts will not create the estate." Likewise, a deed by a husband to himself and wife does not create such a tenancy,*" even where the statute permits spouses to convey directly to each other,*' nor is it created where one spou36 receives a deed from the co-tenant of the other spouse of such co-tenant's undivided interest,*^ nor by a deed from one spouse to the other of an undivided part of an estate owned by the grantor in severalty.** It is usually immaterial who pays the consideration,** but it may be otherwise in equity where the land was purchased with the wife's money and where the form of the conveyance was with- out her consent.*" § 567. Possession as Between Spouses. By the common law the beneficial enjoyment during the joint lives of husband and wife was that of the husband; but in this respect the Married Women's Acts have made some changes.** 56. Chandler v. Cheney, 37 Ind. 391. 60. Michigan State Bank v. Kern, 57. Wright v. Kayner, 14 Det. Leg. 189 Mich. 467, 155 N. W. 502; Wright N. 631, 113 N. W. 779, 150 Mich. 7; v. Knapp (Mich.), 150 N. W. 315; Hubatka v. Myerhofer, 81 N. J. 410, Grimminger v. Alderton (N. J.), 96 75 A. 454; Butler v. Butler, 93 Misc. A. 80. 258, 157 N. T. S. 188; McKee v. 61. Eingstad v. Hansom, 150 la. Bavins, 138 Tenn. 249-, 197 S. W. 563. 324, 130 N. W. 145. 58. Richards V. Eichards (Ind.), 110 62. Isley v. Sellars, 153 N. C. 374, N. E. 103; Eyan v. Ford, 151 Mo. 69 8. E. 279; Tindell v. Tindell App. 689, 132 S. W. 610; Bennett v. (Tenn.), 37 S. W. 1105. Hutohens, 133 Tenn. 65, 179 S. W. 63. Pegg v. Pegg, 165 Mich. 228, 629; Deese v. Deese, 176 N. C. 527, 130 N. W. 617, 33 L. E. A. (N. S.) 97 S. E. 475 (holding that the fact 166. must appear from the deed). 64. White v. Woods (Ind.), 106 N. 59. Blease v. Anderson, 241 Pa. 198, E. 536; Staleup v. Stalcup, 137 N. 0. 88 A. 365. 305, 49 N. E. 210; Hayes v. Horton, The use of the word "jointly" in 46 Ore. 597, 81 P. 386. a deed to spouses, does not prevent 65. Donovan v. Griflath, 215 Mo. their taking an estate by the entirety, 149, 114 8. W. 621. the v7ord being surplusage. Simons 66. Belles v. State Trust Co., 27 N, V. Bolinger, 154 Ind. 83, 56 N. B. 23, 23 L. E. A. 234. § 569 HUSBAND AND WIFE. 590 Under such a statute the occupation of spouses during coverture is substantially that of tenants in common,'^ each being entitled to half the rents and profits.®' In Missouri it is held that a wife's interest in an estate by the entirety is not her separate property, hence the husband has the occupation and rents and profits of it for his life, jure mariti."^ The use and occupation of such an estate is not a matter for an accounting between the spouses.''" § 568. Effect of Partition and Divorce. An estate by the entirety is not subject to partition or affected by the attainder of one of the spouses.'" The courts are not agreed as to the effect of a divorce. In North Carolina it is held that it renders the spouses tenants in common.'" The contrary is held in Pennsylvania.'^ The estate by entireties is not dissolved by a divorce a mensa et thoro, as this does not purport on its face to dissolve the bonds of matrimony, but is in legal effect simply a decree of separation and merely suspends and does not alter the marriage relation.''* § 569. Effect of Statutes. An estate by the entirety is not affected by a statute passed after it has vested.''^ It has never been recognized in Oonnecticut, !N"ebraska, Ohio, or J. Eq. 308; Kip v. Kip, 33 N. J. Eq. and profits jure mariti and not as 213. tenant. Masterman v. Masterman, 129 67. Schulz V. Ziegler, 80 N. J. Eq. Md. 167, 98 A. 537. 199, 83 A. 968 ; Goodrich v. Village of 69. First Nat. Bank v. Fry, 168 Otego, 216 N. T. 112, 110 N. E. 162; Mo. 492, 68 S. W. 348. Quigley v. Monsees, 56 Misc. 110, 106 70. Minion v. Warner, 173 N. Y. 8. N. Y. S. 167; Steenberge v. Low, 46 69. Misc. 285, 92 N. Y. S. 518; In re Vil- 71. Jacobs v. Miller, 50 Mich. 119, lage of Holcomb, 97 Misc. 241, 163 15 N. W. 42; Jones v. W. A. Smith N. Y. S. 848. & Co., 149 N. C. 318, 62 S. E. 1092. The Maryland Married Women's 72. McKinnon, Currie & Co. v. Act has taken away the husband's Caulk, 167 N. C. 411, 83 S. E. 559, common-law right to the whole of the L. B. A. 1915C, 396 ; Freeman v. Bel- rents and profits of such an estate. fer, 173 N. C. 581, 93 8. E. 486; see Masterman v. Masterman, 129 Md. further post. 167, 98 A. 537. 73. Alles v. Lyon, 216 Pa. 604, 66 68. Niehaus v. Niehaus, 141 App. A. 81, 10 L. E. A. (N. 8.) 463. Div. 251, 125 N. Y. S. 1071; In re 74. Freeman v. Belfaer, 173 N. C. Klatzl's Estate, 149 N. Y. 8. 79-4; 581, 92 8. E. 486, L. R. A. 1917E, 368. Maekotter v. Maekotter, 74 Misc. 214, 75. Pease v. Inhabitants of Whit- 131 N. Y. S. 815. man, 182 Mass. 363, 65 N. E. 795; It has been held that at common law Hough v. Jasper County Light & Fuel the husband was entitled to the rents Co., 127 Mo. App. 570, 106 8. W. 547. 691 CONVEYANCES TO SPOUSES. § 569 Oklahoma,'" but in some States legislaition has abrogated this common-law doctrine of entirety.'" Such has been held to be the effect of the Married Women's Acts in Alabama, Colorado, Illinois, Maine, ISTebraska, South Carolina, Tennessee, England and Canada.''* In Arkansas, Delaware, Dis- trict of Columbia, Michigan, Missouri, 'New York, ISTorth Carolina, and Pennsylvania the Married Women's Acts have not abolished it." Cases holding the opposite view proceed on the theory that such acts have destroyed the unity of husband and wife, but they over- look the plain fact that such acts are meant to destroy the unity of unequals, the foundation of the jus mariti, and to thereby restore to its full vigor the unity made up of equals, the foundation of the estate by entireties. The design of such acts was not to destroy the oneness of husband and wife, but to protect the wife's 76. Whittlesey v. FuUer, 11 Conn. 337; Miles v. Fisher, 10 Ohio 1, 36 Am. D. 61; Wilson v. Fleming, 13 Ohio, 68 ; Kemer v. McDonald, 60 Neb. 663, 84 N. W. 92, 83 Am. St. B. 550; Hamra v. Fitzpatrick (Okla.), 154 P. 665; Helvie v. Hoover, 11 Okla. 687, 69 P. 958. 77. Hannon v. Southern Pac. E. Co., 12 Cal. App. 350, 107 P. 335; Swan v. Walden, 156 Cal. 195, 103 P. 931; Bassler v. Kewodlinski, 130 Wis. 26, 109 N. W. 1032, 7 L. B. A. (N. S.) 701 ; Stewart v. Thomas, 64 Kan. 511, 68 P. 70; MeNeeley v. South Penn. Oil Co., 52 W. Va. 616, 44 S. B. 508, 62 L. E. A. 562; Wilson v. Wilson, 43 Minn. 398, 45 N. W. 710. And thus may the spouses be re- garded as joint tenants or rather tenants in common. Cooper v. Cooper, 76 111. 57; Whittlesey v. Fuller, 11 Conn. 337; Clark v. Clark, 56 N. H. 105 ; Meeker v. Wright, 76 N. Y. 262. 78. Whyman v. Johnston (Colo.), 163 P. 76; Lawler v. Byrne, 252 HI. 194, 96 N. E. 892; Kemer v. Donald, 60 Neb. 663, 84 N. W. 92, 83 Am. St. E. 550; Mettel v. Karl, 133 111. 65, 24 N. E. 553 ; Gill v. McKinney, 140 Tenn. 549, 205 8. W. 416; Donegan y. Donegan, 103 Ala. 488, 15 So. 823; Be Eobinson, 88 Me. 17, 33 Atl. 652; Green v. Cannaday, 77 S. C. 193, 57 S. E. 832; Jupp v. Buekwell, L. E. 39 Ch. Div. 148; Be Wilson, 20 Ont. Eep. 397; Griffin v. Patterson, 45 U. C. Q. B. 536. 79. Boubton v. Hall, 66 Ark. 305, 50 S. W. 690, 74 Am. St. E. 97 ; God- man V. Greer (Del.), 105 A. 380; Kunz V. Kurtz, 8 Del. Ch. 404, 68 A. 450; Loughran v. Lemmon, 19 App. D. C. 141; Fisher v. Provin, 25 Mich. 347; Johnston v. Johnston, 173 Mo. 91, 73 S. W. 202, 61 Ii. B. A. 166, 96 Am. St. B. 486; Ashbaugh v. Ashbaugh, 273 Mo. 353, 201 S. W. 72; Bay v. Long, 132 N. C. 891, 44 S. E. 652; Jones V. W. A. Smith & Co., 149 N. C. 318, 62 S. E. 1092 ; Bilder v. Eobinson, 73 N. J. Eq. 169, 67 A. 828 ; Goodrich V. Village of Otego, 160 App. Div. 349, 145 N. T. S. 497; In re Meyer's Estate, 232 Pa. 89, 81 A. 145 ; Hoover V. Potter, 42 Pa. Super. 21; Hiles v. Fisher, 144 N. T. 306, 39 N. E. 337; Pray v. Stebbins, 141 Mass. 219, 4 N. E. 824; Stifel's Union Brewing Co. V. Saxy (Mo.), 201 S. W. 67, L. E. A. 1918C, 1009; Morrill v. Morrill, 138 Mich. 112, 101 N. W. 209, 4 Ann. Oaa. 1100 ; Diver v. Diver, 56 Pa. 106. § 570 HUSBAND AND WIFE. 592 property by removing it from under the dominion of the husband, and has nothing to do with the naiture of the estate.*" In Minnesota neither estates by the entirety or joint tenancies, with survivorship, can be held by spouses either in real or personal property.°\ In West Virginia it seems that there may still be a life estate by the entirety.*^ In Arkansas, Delaware, Indiana, Massachusetts, Missouri, and North Carolina it is held that stat- utes providing that a deed to two or more persons shall create a tenancy in common and not a joint tenancy have not abolished estates by the entirety.*' § 570. Spouses as Tenants in Common. By express words husband and wife may be made tenants in common by a conveyance to them during coverture,** where the deed shows a plain intention to create such an estate.*^ Such an 80. Cole Mfg. Co. v. Collier, 95 Tenn. 115, 31 8. W. 100; Simpson t. Biffle, 63 Ark. 289, 38 8. W. 345; Stifel's TTnion Brewing Co. v. Saxy (Mo.), 301 8. W. 67, L. E. A. 1918C, 1009. 81. Semper v. Coates, 93 Mum. 76, 100 N. W. 662. 82. Irvin v. Stover, 67 W. Va. 356, 67 8. E. 1119. 83. Boulston v. Hall, 66 Ark. 305, 50 S. W. 690, 74 Am. St. E. 97 ; Davies V. Jolmson, 124 Ark. 390, 187 S. W. 323; Kunz v. Kurtz, 8 Del. Ch. 404, 68 A. 450; Dotson v. Faulkenburg (Ind.), 116 N. E. 577; McLaughlin V. Rice, 185 Mass. 212, 70 N. E. 52, 102 Am. St. B. 663 ; Wilson v. Frost, 186 Mo. 311, 85 S. W. 375, 105 Am. St R. 619; Moore v Greenville Bank- iag & Trust Co. (N. C), 100 S. E. 269. 84. Carroll v. Eeidy, 5 App. D. C. 59; Brown v. Brown, 133 lud. 476, 32 N. E. 1128; Brest Abst. 41; 1 Washb. Eeal Prop., 278. See Barnes v. Loyd, 37 Ind. 523. Under a devise to husband and wife, making them joint tenants, the hus- band's interest is vendible on execu- tion against him, the purchaser, how- ever, buying subject to the wife's right, in case she survives her hus- band, to take the entire estate. Hall V. Stephens, 65 Mo. 670. 85. Whitley v. Meador, 137 Tenn. 163, 192 S. W. 718, L. E. A. 1917D, 736; Norman's Ex'x v. Cunningham, 5 Gratt. (Va.) 63 ; Dotson v. Fanlken- burg, 186 Ind. 417, 116 N. E. 577; Messenbaugh v. Goll, 198 Mo. App. 698, 202 8. W. 265; Highsmith v. Page, 158 N. C. 226, 73 S. E. 998; HoUoway v. Green, 167 N. C. 91, 83 8. E. 243 ; Eason v. Eason, 159 N. C. 539, 75 8. E. 797; Booth v. Fordham, 185 N. T. 535, 77 N. E. 1182; Lerbs V. Lerbs, 71 Misc. 51, 129 N. T. S. 903; Saxon V. Saxon, 46 Misc. 202, 93 N. T. 8. 191; Bedford Lodge v. Lentz, 194 Pa. 399, 45 A. 378; American Nat. Bank v. Taylor, 112 Va. 1, 70 S. E. 534; Hoover v. Potter, 42 Pa. Super. 21 (holding that a deed expressly re- citing that the grantees were husband and wife created a tenancy by the entirety though it also provided that they should take as tenants in com- mon). Where there was an agreement be- tween the spouses that they should take in common, but where by mistake the deed was to them as tenants by the entirety, they were held to take in 593 CONVEYANCES TO SPOUSES. § 570 intent must be plainly expressed, and effect cannot be given to random pbrases inserted by an ignoranit scrivener,"' The question of intention is one of fact for the jury."' Partition deeds to spouses jointly conveying the distributive share of one of them in real estate create a tenancy in common and not a tenancy by the entirety," even where the deed is so dra-wn at the request of the distributee.** Under the statutes of California, Iowa, Mississippi, and Okla- homa a deed to spouses jointly creates a tenancy in common,** and as a result of the South Carolina Married Women's Act it is held that a conveyance to spouses jointly creates a tenancy in common except where a contrary intention appears.*^ In Minne- sota the spouses take equally and in common in the absence of evidence showing different interests.** In California the pre- sumption that spouses take in common may be rebutted,** and it may be shown to be community property.** Under the Kentucky statute an estate in common is taken unless the deed expressly provides for a survivorship.*' In New Jersey it is held that a chose in action made to spouses jointly is held by them as tenants in common.*' In Illinois a judgment creditor of the husband acquires no interest in the share of the wife in a joint estate by a sale on the judgment.*' common. Stalcup v. Staleup, 137 N. Okla. 687, 69 P. 958; Alsop v. Fedar- C. 305, 49 N. E. 210. wisch, 9 App. D. C. 408. 86. Ashbaugh v. Ashbaugh, 273 Mo. 91. Green v. Cannady, 77 S. C. 193, 353, 201 S. W. 72. 57 8. E. 832. 87. Olson V. Peterson, 88 Kan. 350, 92. Dorsey v. Dorsey, 142 Minn. 128 P. 191. 279, 171 N. W. 933. 88. Harrison v. McBeynolds, 183 93. Volquards v. Myers, 23 Cal. Mo. 533, 82 S. W. 120 ; Jelly v. Lamar, App. 500, 138 P. 963. 242 Ma 44, 145 S. W. 79«; Speas v. 94. In re Shirley's Estate, 167 Cal. Woodhonse, 162 N. C. 66, 77 S. E. 193, 138 P. 994. 1000; Btoffal v. Jarvis, 235 Pa. 50, 95. McCallister v. Folden's Assig- 83 A. 609. nee, 110 Ky. 732, 23 Ky. Law, 113, 89. Sprinkle v, Spainhour, 149 N. C. 62 S. "W. 538 ; Harris v. Taliaferro, a23, 62 S. E. 910. 148 Ky. 150, 146 S. W. 22; Campbell 90. Shaw V. Bernal, 163 Cal. 262, v. Asher, 28 Ky. Law, 50, 88 S. W. 124 P. 1012; Bader v. Dyer, 106 la. 1067. 715 77 N. W. 469, 68 Am. St. E. 332 ; 96. Aubry v. Schneider, 69 N. J. Conn V. Boutwell, 101 Miss. 353, 58 Eq. 629, 60 A. 929. So. 105; Wagoner v. Silva, 139 Cal. 97. Sledge v. Dobbs, 254 lU. 130, 559, 73 P. 433; Helvie v. Hoover, 11 98 N. E. 243. 38 § 572 HUSBAHD AND WIFE. 594 § 571. Spouses as Joint Tenants. Spouses take as joint tenants in Connecticut, where the eartate by the entirety has never been recognized," and in Iowa and Wisconsin, where it has been abolished." The same is true under the West Virginia statute.^ In California, Nebraska and Wisconsin spouses may hold as joint tenants where the deed clearly shows such an intention.^ They may do so even in Massachusetts and Indiana, where the tenancy by the entirety is recognized.* Where spouses hold as joint tenants the wife takes half the rents and profits, as though sole.* No joint tenancy is created where one tenancy in common con- veys to the wife of his co-tenant,'' and where husband and wife take as joint tenants and by virtue of the relation become tenants by the entirety, a divorce will restore the joint tenancy.' Where a bill to reach the interest of a husband in a joint estate charged that the wife paid no consideration, it was held that she had the burden of showing the contrary, the presumption being that the husband paid if § 572. Rights of Creditors. It is held by most of the courts that an estate by the entirety cannot be subjected to the debts of one tenant,' but only to their 98. New York, N. H. & H. E. Co. 4. Messing v. Messing, 64 App. Div. T. Eussell, 83 Conn. 581, 78 A. 324; 125, 71 N. T. S. 717. Whittlesey v. Fuller, 11 Conn. 337. 6. Banzer v. Banzer, 156 N. T. 429, 99. Gruwell v. GruweU (la.), 171 51 N. E. 291. N. W. 290; Fielder v. Howard, 99 6. Lash v. Lash, 58 Ind. 526. Wis. 388, 75 N. W. 163; Bassler v. 7. Murdock v. Baker, 46 W. Va. 78, Eewodlinski, 130 Wis. 26, 109 N. W. 32 N. E. 1009. 1032, 7 L. E. A. (N. S.) 701. 8. Baker v. Lamb, 18 N. T. Super. 1. McNeeley v. South Penn. Oil Co., 519 ; Simpson v. Biffle, 63 Ark. 289, 52 W. Va. 616, 44 S. E. 508, 62 L. E. 3 S. W. 345; Davis v. Clark, 26 Ind. A. 562. 424, 89 Am. D. 471; Simmons v. a. In re Harris' Estate, 169 Cal. Meyers (Ind.), 112 N. E. 31; Ades v. 725, 147 P. 967; Sanderson v. Ever- Caplan, 132 Md. 66, 103 A. 94, L. B. son, 93 Neb. 606, 141 N. W. 1025; A. 1918D, 276; Masterman v. Master- Dupont V. Jonet, 165 Wis. 554, 162 N. man, 129 Md. 167, 98 A. 537 ; Sanford W. 664; Friedrich v. Huth, 155 Wis. v. Bertrau, 204 Mich. 244, 169 N. W. 196, 144 N. W. 202; Eassler v. Ee- 880; Ashbaugh v. Ashbaugh, 273 Mo. wodHnski, 130 Wis. 26, 109 N. W. 353, 201 8. W. 72; Stifel's Union 1032, 7 L. E. A. (N. S.) 701 ; Church Brewing Co. v. Saxy, 273 Mo. 15?, V. McLennan (Wis.), 158 N. W. 89. 201 8. W. 67, L. E. A. 1918C, 1009; 3. Phelps V. Smith, 116 Ind. 387, Moore v. Greenville Banking & Trust 17 N. E. 602; Woodard v. Woodard, Co. (N. C), 100 S. E. 269; Harris v. 216 Mass. 1, 102 N. E. 921. Carolina Distributing Co., 172 N. C. 695 CONVEYANCES TO SPOUSES. § 572 joint debts.* Therefore, a judgment against a husband does not affect the joint estate of the husband and wife, and a decree in equity in favor of such a judgment creditor can confer no better title than a sale of the premises under the judgment at law.^" A sheriil's sale fails to pass the undivided half of either, or indeed any title whatever." It may also be subject to a vendor's lien." In Pennsylvania the interest of a tenant may be subject to lien, and in New Jersey his interest as tenant by the entirety, but not an equal and undivided interest, may be subjected to his debts.^' The right of one tenant cannot be affected by the bankruptcy of the other," In Michigan the rule is that the estate is not subject to the sole debts of either party where contracted after the estate vested, but it may be subject to those contracted before such time.^^ Where a creditor is permitted to reach the interest of a tenant by the entirety, one buying at an execution sale becomes tenant in common with the other subject to the survivor^ip." 14, S. E. 789; Eay v. Long, 132 N. C. 891, 44 S. E. 652 ; Hood v. Mercer, 150 N. C. 699, 64 S. E. 897 ; Servis v. Dom, 76 N. J. Eq. 241, 76 A. 246; AUes V. Lyon, 216 Pa. 604, 66 A. 81, 10 L. E. A. (N. S.) 463; Hetzel v. Lincoln, 216 Pa. 60, 64 A. 866; Citi- zens' Sav. Bank & Trust Co. v. Jenk- ins (Vt.), 99 A. 250. ». Union Nat. Bank v. Finley, 180 Ind. 470, 103 N. E. 110; Sharp v. Baker, 51 Ind. App. 547, 96 N. E. 627; Frey v. McGaw, 127 Md. 23, 95 Atl. 960, L. E. A. 1916D, 113. 10. Thomas v. De Baum, 1 MeCart. 37 ; Tupper v. Fuller, 7 Eich. Eq. (S. C.) 170; Davis v. Clark, 26 Ind. 424. 11. Stifel's Union Brewing Co. v. Saxy, 273 Mo. 159, 201 8. W. 67, L. E. A. 1918C, 1009 ; Almond v. Bonnell, 76 111. 536; Anderson v. Tannehill, 42 Ind. 141; McConnell v. Martin, 52 Ind. 434. Equity, however, reserving the wife's potential survivorship and right to enjoy, will sometimes dispose of the husband's interest for the bene- fit of his creditors. Cochran v. Ker- ney, 9 Bush (Ky.), 199. 12. Moore v. Carey, 138 Tenn. 332, 197 8. W. 1093, L. E. A. 1918D, 963. 13. Wortendyke v. Eayot, 87 N. J. Eq. 159, 99 A. 917, 102 A. 2; Beihl v. Martin, 236 Pa. 519, 84 A. 953. 14. Beihl v. Martin, 236 Pa. 519', 84 A. 953; Be Meyer, 232 Pa. 89, 81 Atl. 145, 36 L. E. A. (N. 8.) 205. But where subsequently a petition in bankruptcy is filed against the hus- band and is followed by his discharge in bankruptcy this prevents the sale of the property during his lifetime under an execution on the judgment, as the lien of the judgment is wiped out by the bankruptcy. The effect of this is practically the same as if the judgment had been recovered against the wife alone, in which case the prop- erty could not have been sold during the lifetime of the husband, if at all, under an execution issued on such judgment. Ades v. Caplan, 132 Md. 66, 103 Atl. 94, L. E. A. 1918D, 276. 15. Dickey v. Converse, 117 Mich. 449, 76 N. W. 80, 5 Det. Leg. N. 306, 72 Am. St. E. 568; Michigan Beef & Provision Co. v. Coll, 116 Mich. 261, 74 N. W. 475, 4 Det. Leg. N. 306; Schliess v. Thayer, 170 Mich. 395, 136 N. "W. 365. 16. Bartkowaik v. Sampson, 73 § 573 HUSBAND AND WIFE. 596 § 573. Conveyance or Mortgage. It is usually held that neither spouse can convey or affect an estate by the entirety during the other's lifetime to the exclusion of that other/^ or dispose of it by will.^' Therefore it may be conveyed in fee or encumbered only by the joint deed of husband and wife.^* Though a husband alone cannot convey an interest in an estate by the entirety so as to bind his co-tenant, such deed may take effect at the wife's death and vest 'a title in the grantee if there were covenants of title,^° and a quitclaim deed of one tenant does not give an equitable lien for the purchase price without joinder of the other." Where spouses orally agreed to sell land held by the entirety, and the wife treated the contract as valid in the husband's lifetime and accepted payments on the contract, it was held that she was bound by it after his death.''^ In Indiana a mortgage by both spouses to secure the sole debt of the husband is voidable by either, being in violation of the statute prohibiting a wife from binding herself as surety for her husband.^' It is otherwise in Michigan, Oklahoma and Ken- Misc. 446, 133 N. T. S. 401; Mardt v. re McKelway's Estate, 221 N. Y. 15, Scharmach, 65 Misc. 124, 119 N. T. B. 449. 17. Healey Ice Mach. Co. v. Green, 181 F. 890; In re Berry, 247 P. 700; Chandler v. Cheney, 37 Ind. 391; Davis V. Clark, 26 Ind. 524, 89 Am. D. 471; Sharpe v. Baker (Ind.), 99 N. E. 44; Ade3 v. Caplan, 132 Md. 66, 103 A. 94, L. R. A. 1918D, 276 ; Mas- terman v. Masterman, 129 Md. 167, 98 A. 537 ; Dutch v. Manning, 2 Danl. Abr. (Mass.) 230; Shaw v. Husey, 5 Mass. 521; Fox v. Fletcher, 8 Mass. 274; Vamum v. Abbott, 12 Mass. 474, 7 Am. D. 87; Pierce v. Chace, 108 Mass. 254; Pease v. Inhabitants of Whitman, 182 Mass. 363, 65 N. E. 795; Vinton v. Beamer, 55 Mich. 559, 22 N. W. 40; Kegan t. Haslett, 128 Mo. 286, 107 S. W. 17; Ernst v. Ernst, 178 Mich. 100, 144 N. W. 513, 51 L. E. A. (N. S.) 317; Stifel's Union Brewing Co. v. Saxy, 273 Mo. 159, 201 S. W. 67, L. R. A. 1918C, 1009; Moore v. Greenville Banking & Trust Co. (N. C), 100 S. E. 269; In 116 N. E. 348; Hayes v. Horton, 46 Ore. 597, 81 P. 386 ; Gibbs v. Tiffany, 4 Pa. Super. 29; Tokley v. Superior Drill Co., 26 Ky. Law, 302, 80 S. W. 1153. 18. Toung V. Biehl, 166 Ind. 357, 77 N. E. 406; "Wilson v. Johnson, 4 Kan. App. 747, 46 P. 833 ; Hubert v. Traeder,- 139 Mich. €9, 102 N. W. 283, 11 Det. Leg. N. 756. 19. Rogers v. Shewmaker, 27 Ind. App. 631, 60 N. E. 462, 87 Am. St. E. 274; Moore v. Greenville Banking & Trust Co. (N. C), 100 S. E. 269; McDuff V. Beauchamp, 50 Miss. 531. See Insurance Co. v. Nelson, 103 U. S. 544; Jones y. Shepley, 90 Mo. 307, 2 S. W. 400. 20. Hume v. Hopkins, 140 Mo. 65, 41 S. W. 784. 21. Ernst v. Ernst, 178 Mich. 100, 144 N. W. 513. 22. Kilsby v. Nichols, 168 N. T. 8. 92, 180 App. Div. 827. 23. Neighbors v. Davis, 34 Ind. App. 441, 73 N. E. 151. 597 CONVEYANCES TO SPOUSES. § 574 tucky.^* In New York it has been held either may alienate his or her interest,^^ while in New Jersey a husband may alienate his interest in such an estate and thereby constitute the grantee tenant in common with the other tenant by the entirety, but for the joint lives of the spouses only.^° A husband may also lease it for his lifetime/^ and a husband may grant a license to lay a sewer on land held by himself and his wife by the entirety, which will be good as against both during their joint lives, and absolute against himself if he survives.** The contrary is held in New York.*' ^ 574. Rule in Equity as to Gift or Conveyance to Spouses; In General. If a gift or settlement be made to husband and wife jointly, the husband (where permitted, as under the old rule, to reduce to possession) may collect the whole; but if not reduced to posses- sion, the fund will survive to the wife. Where the fund is in chancery, however, a settlement may be ordered, or the fund reserved with a suitable decree as to the disposal of the income; and a husband's creditors may avail themselves accordingly. °° A purchase or investment is sometimes made with the joint funds of husband and wife, or in such other manner as to make their interest joint or common.'^ Under such circumstances a wife may claim protection of her undivided interest against a seizure or attachment of the fund by the husband's creditors.'* But in equity a partition of such interests is favored,** and the 24 Drye v. Cook's Trustee, 14 Bush son, the presumable intent is to make (Ky), 459; Ehle v. Looker, 182 Mich. that third person a trustee for the 248, 148 N. W. 378; Bastin v. Schafer, survivor; though, had the third per- 15 Okla. 607, 85 P. 349. son contributed to the investment, the 25. Messing v. Messing, 64 App. effect would be rather to eretate a Div. 125 71 N. Y. S. 717. joint or common tenancy in the fund. 26. Schulz V. Ziegler, 80 N. J. Eq. Be Eykyn's Trusts, L. R. 6 Ch. D. 199 83 A. 9'68. 115- As to a wife's corresponding 27. Pray v. Stebbins, 141 Mass. 219, transfer, cf. Batstone v. Salter, L. E. 4 N. E. 824, 55 Am. R. 462 ; Bank of 10 Ch. 431. Greenville v. Gornto, 161 N. C. 341, 31. Kilby v. Godwin, 2 Del. Ch. 61. 77 S. E. 222. 82. In Iowa the wife need not resort 28. Ewen v. Hart, 183 Mo. App. to remedies by injunction, but may 107 166 S. W. 315. notify the officer of the existence of 29. Wightman v. Cottrell, 155 App. her claim. McTighe v. Bringolf, 42 Div. 76, 139 N. Y. S. 564. la. 455. 30. 2 Perry Trusts, § 644. Where the S3. Long v. Perdue, 83 Pa. 214; husband transfers a fund to the name Baggs v. Baggs, 54 Ga. 95. of himself, his wife, and a third per- § 575 HUSBANB AND WIFE. 598 subjection of the husband's interest or share to the claims of his own creditors/* In Massachusetts, a wife and her husband own- ing a vessel together are jointly liable on the contracts of the master made within due scope of authority ; and this, though the husband himself be master.*^ Where real estate is purchased with joint funds of husband and wife, and the title conveyed to the latter without fraudulent com- plicity, the creditors of the husband must resort to equity iu order to reach his equitable interest." § 575. Resulting Trust. The question whether a resulting trust is established in certain property of husband or wife comes up constantly in the latest American cases, with the extension of equity jurisdiction in the States and the new married women's legislation. Issues of this sort are made up not only where the claim is that of a wife against her husband, or of a husband against his wife, but in controversies between either one and the creditors of the other. The decision must be according to the evidence adduced, which is usually oral, deference being paid to the usual presumptions as between hus- band and wife ; but the ostensible title afforded by instruments of title or security standing in the name of the one is thus over- thrown by proof that the property actually belonged by right to the other.*' As between themselves, therefore, one spouse may be treated as in effect trustee for the other, and bound to make the title according to the just ownership ; though an intervening pur- chaser in good faith for value may be entitled to protection, of course, by reason of a superior equity,^* as also may the general 34. Creighton v. Clifford, 6 Rich. head, see Sweeney v. Damron, 47 HI. (S. C.) 188. 450; Bent v. Bent, 44 Vt. 555; Cotton 35. Eeiman v. Hamilton, 111 Mass. v. Wood, 25 la. 43; Howe v. Colby, 19 245. Wis. 583; Caims v. Colburn, 104 36. Snow V. Paine, 114 Mass. 520. Mass. 274; Pribble v. Hall, 13 Bush The marital occupation of the wife's (Ky.), 61; Evans T. English, 61 Ala. separate farm, as between her and her 416; Carpenter v. Davis, 72 HI. 14; husband, is but one possession, and Keller v. Keller, 45 Md. 269; Payne manure accumulated upon the land, v. Twyman, 68 Mo. 339; Dula v. though produced in part by his stock Young, 70 N. C. 450; Irvine v. or hay, is part of the land belonging Greever, 32 Gratt. (Va.) 411; Davis to her. Norton v. Craig, 68 Me. 275. v. Davis, 43 Ind. 561; Lyon v. Akin, But where husband and wife own 78 N. C. 258. As to disputing a deed premises jointly they may join in an by parol, notwithstanding the statute action for injury thereto. Armstrong of frauds, in such an issue, see Foote V. Colby, 47 Vt. 360, and cases cited. v. Bryant, 47 N. T. 544. 37. Among late cases under this 38. Dixon v. Brown, 53 Ala. 428. 599 CONVEYANCES TO SPOUSES. § 577 creditors in some instances.*® Even though the husband become embarrassed in circumstances, he may be compelled to execute his trust for the wife's benefit." But to the extent of the husband's own pecuniary interest in such a fund his creditors may claim the benefit, besides which the identity of the wife's property is of material importance.*^ § 576. Effect of Purchase at Judicial Sale. A creditor or third person may buy the debtor's property at a sheriff's or bankruptcy sale, and then give or sell it to the debtor's wife, provided, of course, the transaction be bona fide; for this would be his own gift or transfer, not the husband's, and the husband's own insolvency cannot invalidate the transaction.*^ So, too, the wife's purchase of her husband's property at a sheriff's or bankruptcy sale, upon a bona fide bid, vests in her a good title aa her separate property.** A similar rule applies, in the absence of fraud, where she or someone in her interest purchases under a mortgage or judicial sale of premises belonging to her husband, no fraud being disclosed in the transaction.** But if fraud is committed on the wife in such a transaction, through the husband's false inducement, or by other means, she may obtain relief against the disadvantageous purchase and recover the money paid.*' § 577. As to Insurance on Husband's Life in Favor of Wife. Insurance is frequently effected by a husband on his own life for the separate benefit of his wife; a provision most just and honorable, if not so unreasonable in amount, with its incidental payment of premiums, as to defraud one's antecedent creditors. The subsequent bona fide assignment by wife and husband of such a policy for the benefit of the latter's creditors is sustained in several late cases ; *° though an assignment procured from the 39. Damaby v. Damaby, 14 Bush see Norman v. Norman, 6 Bush. (Ky.), (Ky.), 485; Brooks v. Shelton, 54 495. Miss. 353. *6' Whether the creditors of a mar- 40. Payne v. Twyman, 68 Mo. 339. ried woman for premiums paid on a 41. Heam v. Lander, 11 Bush policy upon her husband's life can en- (Ky.), 669; Sampson v. Alexander, 66 force payment out of her separate es- Me. 182. tate, see Ogden v. Guill, 56 Miss. 330. 42. Winch v. James, 68 Pa. 397. As to the extent to which the validity 43. Bowser v. Bowser, 82 Pa. 57; of the wife's title to the policy -money Blum V. Harrison, 50 Ala. 16. may be affected in consequence, see 44. Page v. Dixon, 59' Mo. 43 ; Hill Barry v. Mut. Life Ins. Co., 49 How. V. Bugg, 53 Miss. 397. Pr. (N. T.) 504; Godfrey v. Wilson, 45. Case v. Colter, 66 Ind. 336. And 70 Ind. 50. TJnder some statutes, the § 578 HUSBAND AND WIFE. 600 wife, injurious to her interest, must raise the general question of a wife's separate contracts and liability;*'' and an assignment procured from her by fraud or undue marital influence amounting to compulsion will not be enforced.'*® Due reference being had to the language of every policy, it is likewise true, in general, that if the husband survive the wife, for whose benefit the policy was taken out, he may dispose of it otherwise, and, with the in- surer's consent, can have it changed so as even to benefit a subse- quent wife, in case he marries again.** The proceeds of a policy of insurance on her husband's life, when realized by the wife after his death, are not absolved from her own. liabilities, although exempt from the payment of debts contracted by the husband during his lifetime.®* Her constituted agent for paying the premiums is liable to her (under her separate estate or statutory rights) for his default or misconduct.®^ And chancery will sometimes intervene, where the face of the policy does not sufficiently indicate the interest intended for wife or children, and protect their interests against the husband and his creditors.®^ A policy may be limited to children in default of the wife surviving; and, if so, the wife cannot assign it to their detriment.®' § 578. Equitable Relief. Equity, in recognizing husband, and wife as distinct persons capable of contracting with one another and holding property adverse to one another's claims, affords the relief appropriate to such a situation. Where either one is false to the other, and fraTidulently or through coercion procures an unjust advantage, chancery will relieve against the transaction.®* ■wife's assignment with her husband's ley, 35 Md. 188; Gambs v. Covenant, consent may suffice without his sig- &o., Life Ins. Co., 50 Misc. 44; Ker- nature. Whitridge v. Barry, 42 Md. man v. Howard, 23 Wis. 108; Stokes 140. V. Coffey, 8 Bush (Ky.), 533; Thomp- 47. Supra, § 223. son t. American, See., Ins. Co., 46 N. 48. Whitridge v. Barry, 42 Md. 140 ; T. 674. And see 1 Shouler Pers. Towle V. Butterly, 78 N. T. 68. Prop., 703-727. A policy in the wife 's name, and for 50. Smedley v. Felt, 43 la. 607. her benefit, upon her husband's life, 51. Ainsworth v. Backus, 5 Hun (N. becomes her separate property beyond T.), 414. his reach. Southern Life Ins. Co. v. 52. Be Mellor's Policy Trusts, L. B. Booker, 9 Heisk. (Tenn.) 606; Sue- 6 Ch. D. 127. cession of Bofenschen, 29 La. Ann. 53. Knickerbocker Life Ins. Co. t. 711. Weitz, 99 Mass. 157. 49. See Pomeroy v. Manhattan, &e., 54. Case v. Colter, 66 Ind. 336. The Ins. Co., 40 111. 398; Emerick v. Coak- wife's fraud on her husband was ra- ^01 CONVEYANCES TO SPOUSES. § 578 A volimtary and self-imposed trust, without consideration, may Mkewise, it is held, be set aside by a court of equity when its purpose has been fulfilled and there is no reason for preserving it.°* lieved against in Stone v. Wood, 85 $5. Tucker's Appeal, 75 Pa. 354. lU. '603. § 579 HUSBAND AND WIFE. 602 CHAPTER XXIX. COMMUNITY DOCTRINE. Section 579. Nature and History of Doctrine. 580. The European Doctrine of Community. 581. Effect of Doctrine on American Jurisprudence. 583. Nature of Community. 583. What Law Governs. 584. What Constitutes Community Property in General. 585. Property Acquired During Coverture. 586. Public Lands Acquired by Grant or Entry. 587. Rents, Profits and Issues of Separate Estates. 588. Improvements on Separate Estates. 589. Damages Eecovered by Spouses. 590. Wife's Earnings. SSn. Property in Part Community Property and in Part Separate Estate. 592. Separate Estate Distinguished. 593. Gifts. 594. Insurance Policies. 595. Determination of Status of Property; Presumption. 596. Evidence and Burden of Proof. 597. Change of Status of Property by Agreement. 598. Nature of Wife 's Interest. 599. Wife 's Paraphernal and Dotal Property. 600. Control and Disposition. 601. Sales, Mortgages and Conveyances; By Husband. 602. By Wife. 603. Lease. 604. Eights and Liabilities of Purchasers During Coverture. 605. Contracts, Conveyances and Gifts Between Spouses. 606. Actions; By Spouses. 607. Against Spouses. 608. Liabilities Chargeable on Community Property; Community Debts Generally. 609. Obligations as Surety. 610. Bills and Notes. 611. Torts. 612. Separate Debts. 613. Eights and Eemedies of Creditors During Existence of Com- munity. 614. Dissolution of Community; Effect of Abandonment, Separation, Insanity or Divorce. 615. Eights and Liabilities of Survivor. 616. Eights of Heirs. 617. Effect of Ee-marriage of Survivor. 618. Accounting or Settlement of Community Eights. 619. Necessity of Acceptances or Eenunciation. ^03 COMMUNITY DOCTRINE. § 580 Section 620. Sale or Mortgage to Pay Debts. 621. Eights and Liabilitiea of Purchasers under Sale to Pay Debts. 622. Actions by or Against Survivor. 633. Actions by or Against Heirs. 624. Administration in General. 625. Control, Management, and Collection of Community Assets. 626. Accounting and Settlement. ^ 579. Nature and History of Doctrine. The communio honorum, or community system, relates to marital property, in which respect it occupies an intermediate position l)etween the civil and common-law schemes. The communio bonorum may have been part of the Roman law at an earlier period of its history, but it had ceased to exist long before the compilation of the Digest ; though parties might by their nuptial agreement adopt it.*** This constitutes a prominent feature of the codes of France, Spain, and other countries of modem Europe, whence it has likewise found its way to Louisiana, Florida, Texas, Oalifomia, and other adjacent States, once subject to French and Spanish dominion, and erected, in fact, out of territory acquired during the present century upon the Mississippi, the Gulf of Mexico, and the Pacific Ocean. The relation of husband and wife is regarded by these codes as ■t species of partnership, the property of which, like that of any other partnership, is primarily liable for the payment of debts. This partnership or community applies to all property acquired during marriage; and it is the well-settled rule that the debts of the partnership have priority of claim to satisfaction out of the community estate. Sometimes the community is universal, com- prising not only property acquired during coverture, but all which belonged to the husband and wife before or at their marriage."^ It is evident, therefore, that the provisions of such codes may differ widely in different States or countries. The principle which distinguishes the community from both the civil and com- mon-law schemes is, however, clear; namely, that husband and wife should have no property apart from one another. § 580. The European Doctrine of Community. Under modem European codes this law of community embraces profits, income, earnings, and all property which, from its nature and the interest of the ovmer, is the subject of his uncontrolled 56. 1 Burge, Col. & For. Laws, 302 ; t&. 263, et seq. 57. 1 Burge, Col. & For. Laws, 277 et seq. § 581 HUSBAND AND WIFE. 604 and absolute alienation ; but certain gifts made between busband and wife in contemplation of marriage are of course properly excluded/' Wbetber antenuptial debts are to be paid from the common property, as well as debts contracted while the relation, of husband and wife continues, would seem to depend upon the extent of the communio honorum, as "including property brought by each as capital stock to the marriage, or only such property as they acquire afterwards."' The codes of modem Europe recognize no general capacity of the wife to contract, sue and be sued, as at the later civil law. On the contrary, the husband becomes, by his marriage, the curator of his wife. He has, therefore, the sole administration and man- agement of her property, and that of the community; and she is entirely excluded in every case in which her acts cannot be referred to an authority, express or implied, from her husband.'" The community ceases on the termination of marriage by mutual separation or the death of either spouse.'^ And the vari- ous codes provide for the rights of the survivor on the legal dissolution of the community by death. § 581. Effect of Doctrine on American Jurisprudence. The reader may readily trace the influence of the community system upon the jurisprudence of Louisiana and the other States to which we have referred, whose annexation was subsequent to the adoption of our Federal Constitution, by examining their judicial reports. The Civil Code of Louisiana, as amended and promulgated in 1824, pronounced that the partnership or com- munity of acquets or gains arising during coverture should exist in every marriage where there was no stipulation to the contrary. This was a legal consequence of marriage under the Spanish law.'* The statutes of Texas, Florida, Missouri, California, and other neighboring States are characterized by similar features. But all of these laws have been modified by settlers bringing with them the principles of the common law. So, too, the doctrines of sep- arate estate, revived in modern jurisprudence, are introduced into the legislation of these, as other American States.'* 58. 1 Burge, Col. & For. LawB, 281, 59. 16. 294. 282. By the French law only the per- 60. 76. 296, 301. sonal estate entered into the commu- 61. 26. 303, 305. nity; but the Spanish law included 62. Art. 2312, 2369, 2370; 2 Kent, both real and peisonal estate. Child- Com. 183, n. less v. Cutter, 16 Mo. 24. 63. Texas Digest, Paschal, "Mari- €05 COMMUNITT DOOTEINE, § 582 There ia in tlie doctrine of community mncli that is fair and reasonable ; tut in the practical workings of this system it is found rather complicated and perplexing, and hence unsatisfactory; while in no part of the United States can it be said to exist at this day in full force, since husband and wife are left pretty free to contract for the separate enjoyment of property, and so exclude the legal presumption of community altogether ; '* and, moreover, the constant tendency of our Southwestern States is to remodel their institutions upon the Anglo-American basis, common to the original States and those of the Ohio valjey. § 582. Nature of Community. The community is an entity, separate and distinct from either spouse.'^ The community status, like partnership, has elementd of gains and losses based on the presumed labors of each spouse, irrespective of the real industry of either."* In Louisiana every marriage superinduces a partnership or community of acquets or gains, unless there is a stipulation to the contrary." No com- munity can exist in the absence of a lavsrful marraige.'* Therefore, no community interest is acquired in a man's property by one who acts as his housekeeper and who has illicit relations with him," even though he holds her out as his wife, and even if she joins with him as such in a mortgage of his property.''" Where, at the time a husband goes through a marriage ceremony, h« has a living, undivorced wife, the property purchased with joint earnings of himself and his second or putative wife does not become community property, but joint or partnership property of tal Rights;" Cal. Civil Code, "Hus- 65. Ostheller v. Spokane & I. E. B. band & Wife;" Parker's Cal. Dig., Co., 107 Wash. 678, 183 P. 630; "Husband & Wife;" Walker v. How- Shorett v. Signor, 58 Wash. 695, 107 ard, 34 Tex. 478 ; Caulk v. Picou, 23 P. 1033. La. Ann. 277. And see Forbes v. 66. Briggs v. McBride (Tex.), 190 Moore, 32 Tex. 195. S. W. 1123. 64. See Packard v. Arellanes, 17 Cal. 67. Succession of Le Basque, 137 La. 525; Waul v. Kirkman, 25 Miss. 609r; 567, 68 So. 956. Succession of McLean, 12 La. Ann. 68. In re Sloan's Estate, 50 Wash. 222; Jones v. Jones, 15 Tex. 143; Ea; 86, 96 P. 684; Sortore v. Sortore, 70 paHe Melboum, L. E. 6 Ch. 64; La. Wash. 410, 126 P. 915. Civil Code, §§ 2369-2405; 1 Burge, 69. Harris v. Hobbs, 22 Tex. Civ. Col. & For. Laws, 277 et seq., where 367, 54 S. W. 1085. the law of community as it was about 70. Engstrom v. Peterson, 107 half a century ago is fully set forth; Wash. 523, 182 P. 623. and the learned note to 2 Kent, Com. 183. § 583 HUSBAND AND WIFE. 60& tile two.'^ The rule only applies as long as the putative wife acta innocently/^ § 583. What Law Governs. The status of a debt owed to a spouse, as being community or separate estate, is determined by the law of the State where such debt is acquired,'* and money which was the separate property of a spouse in the State where it was acquired will remain separate estate when brought into a State where die community doctrine prevails,'* even if invested in land in such latter State." Likewise, the status of property as community or separate prop- erty acquired in States where the community doctrine prevails is to be determined by the law of such State at the time when it is acquired,'* so that statutes regulating the disposition of community property," or providing that property formerly community prop- erty shall be presumptively separate property, do not affect prop- erty of which the title has vested prior to the enactment of the statute.'* But a statute requiring the wife's assent to deeds con- veying community property is merely an additional protection for her existing interest in the property, and not an attempt to divest a vested estate by later legislation." The community laws of Louisiana do not extend to land in. another State or country,*" but land in Louisiana, owned by a community residing in Texas, is governed by the Louisiana laws 71. Little V. Nicholson (Tex.), 187 42 C. C. A. 372; Winters v. Winters,. S. W. 506. 34 Nev. 323, 123 P. 17 (reh. den., 123 72. Middleton v. Johnston (Tex.), P. 1135) ; Sandoval v. Priest, 210 F. 110 S. W. 789. 814; Guye v. Guye, 63 Wash. 340, 115 73. Huyvaerts v. Eoedtz, 105 Wash. P. 731; In re Granniss' Estate, 142 657, 178 P. 801; Douglas v. Douglas, Cal. 1, 75 P. 324; Folsom v. Folsom 22 Ida. 336, 125 P. 79'6. (Wash.), 179 P. 847; Union Savings 74. Brookman v. Durkee, 46 Wash. & Trust Co. v. Manney, 101 Wash. 274, 578, 90 P. 914; In re Niccolls' Estate, 172 P. 251. 164 Cal. 368, 129 P. 278; Gooding 77. Spreekels v. Spreckels, 116 Col. Milling & Elevator Co. v. Lincoln 339, 48 P. 228, 36 L. E. A. 497; County State Bank, 22 Ida. 468, 126 Clavo v. Clavo, 10 Cal. App. 447, 102 P. 772; In re Burrows' Estate, 136 P. 556; Duncan v. Duncan, 6 Cal. Cal. 113, 68 P. 488 ; Witherill v. Eraun- App. 404, 92 P. 310. felter, 46 Wash. 699, 91 P. 1086; Hunt 78. Nilson v. Sarment, 153 Cal. 524,, V. Matthews (Tex.), 60 S. W. 674. 96 P. 315. 75. McDaniel v. Harley (Tex.), 42 79. Arnett v. Eeade, 220 U. S. 311, S. W. 323; Blethen v. Bonner, 30 31 S. Ct. 426, 36 L. E. A. (N. S.) Tex. Civ. 585; In re Warner's Estate, 1040. 167 Cal. 686, 140 P. 583. 80. Nott v. Nott, 111 La. 1028, 36 76. Seeber v. EandaU, 102 E. 215, So. 109. 607 COMMUNITY DOCTEINE. § 583 as to the validity of a conveyance by the wife on the death of the husband.'^ The question whether land acquired under tho home- stead laws of the United States falls into a community already dissolved by the death of the wife is governed by the laws of the United States.*' A wife's right to a tacit lien or mortgage for the repayment of money brought by her into the community is determined by the law of the domicile of the spouses at marriage.** As to personal property acquired during coverture, the law of the domicile controls.** Where stock in an Alabama corporation is part of a community estate in Louisiana, the Alabama courts will, on the principles of equity, avoid a donation of such stock in fraud of the wife's community rights.*' In Idaho it is held that where a deceased spouse resided in Washington at the time of death, the distribution of such spouse's community interest may be made according to the law of the latter State.*" Where a resident of Mississippi was married in that State to a minor resident of Louisiana, with intention to reside in Missis- sippi, the marriage was held not constructively and de jure a Louisiana marriage, so as to entitle the wife to a portion of the commimity property at the husband's death, though the spouses intended to be married in Louisiana and were prevented by acci- dent from so doing.*' The Spanish and Mexican laws as to com- munity or acquest property in force when the United States acquired N"ew Mexico are still in force in that State except as modified by statute.** Since the rights of separate spouses in community property in that State are not regulated either by statute or the common law, such rights are, during the lives of both, determined by such Spanish and Mexican laws.*® In New York it has been held that the provision of the French code as to the establishment of community by the non-existence of contract was limited to marriages between French subjects, or per- sons married in France, so that an ancillary executrix was bound 81. Bender v. Bailey, 130 La. 341, 86. Vansickle v. Hazeltine, 29 Ida. 57 So. 998. 228, 158 P. 326. 82. Wadkins v. Producers' Oil Co., 87. Connor v. Connor, 10 La. Ann. 130 La. 308, 57 So. 937. 440. 83. In re Ujer, 14 N. M. 45, 89 P. 88. Strong v. Eakin, 11 N. M. 107, 246. 66 P. 539. 84. Colpe V. Lindblom, 57 Wash. 89. Bamett v. Bamett, 9 N. M. 106, 106 P. 634. 205, 50 P. 337. 85. Enstis v. Eustis, 236 P, 726, 150 C. C. A. 58. § 585 HUSBAND AND WIFE. 608 to sliow aflBrmatively the applicability of the French law as to a legal commuiiity in support of her claim thereunder.'" The proceeds of community property situated in Texas are sub- ject to the law of Kentucky when received by a husband in that State, and not by the law of Texas.'^ § 584. What Constitutes Community Property in General. The status of property as community or separate property is fixed by the manner of its acquisition,'^ and by the character of the inception of the title.'* Separate property of spouses whioh is mingled with community property in such fashion that its sep- arate character cannot be determined becomes community prop- erty.'* A deed reciting a consideration for a deed to a spouse may be shown to have been paid for with community funds.'" In Washington the test of whether it is community property or not is whether it is acquired with community funds or on com- munity credit.'* § 585. Property Acquired During Coverture. The American community doctrine, as we may term it, is that all property purchased or acquired during marriage, by or in the name of either husband or wife, or both, shall be deemed to belong 90. In re James' Will, 221 N. T. coverture his wife gave him $15 per 140, 116 N. E. 1010 ; In re James, 221 mouth from her separate property, N. Y. 636, 117 N. E. 1072. and where at death his property had 91. Cooke V. Fidelity Trust & Safety greatly increased, it was held that the Vault Co., 104 Ky. 473, 20 Ky. Law, fact that he had mingled the small 667, 47 S. W. 325. amount paid him by the wife with his 92. In re HUl's Estate, 167 Cal. 59, own property did not convert it all 138 P. 69'0. into community property. In re Cud- 93. Welder V. Lambert, 91 Tex. 510, worth's Estate, 133 Cal. 462, 65 P. 44 S. W. 281; Word v. Colley (Tex.), 1041. 173 8. W. 629; Osborn v. Mills, 20 Where a wife purchased prop- Cal App. 346, 128 P. 1090. erty as her separate estate for $8,500, 94. Brown v. Loekhart, 12 N. M. 10, and her husband purchased an ad- 71 P. 1086; Eobb v. Eobb (Tex.), 41 joining lot for $1,700, later selling S. W. 92; Edelstein v. Brown (Tex.), both for $26,000, it was held that 95 8. "W. 1126 (afEd., 100 Tex. 403, there was no commingling which pre- 100 8. W. 129); Moor v. Moor, 24 vented the segregation of the wife's Tex. Civ. 150, 57 8. W. 992 ; Doyle v. separate estate. Carle v. Heller, 18 Langdon, 80 Wash. 175, 141 P. 352; Cal. App. 577, 123 P. 815. In re Buchanan's Estate, 89 Wash. 95. Newman v. Newman (Tex.), 86 172, 154 P. 129. 8. W. 635. Where a decedent during his life- 96. United 8tates Fidelity & Guar- time had an income of $550 a month anty Co. v. Lee, 58 Wash. 16, 107 P. before marriage, and where duiing 870. 60d COMMUNITY DOCTRINE. § 585 prima facie to tie cominmiity,'^ unless by gift, devise or descent,** or unless paid for with the separate means of a spouse," even if title IS taken in th© name of one of the spouses,* or in the name of a third person,^ xmless, in Louisiana, the purchase was made by way of investment or administration of paraphernal funds," and even though the spouses are separated and the wife is obliged to support herself, if they are not divorced.* Land acquired by either spouse during coverture is community property,^ even land origin- ally separate estate, if conveyed away and reconveyed to the spouse during coverture,* as is land acquired by either spouse by adverse possession,^ even where the possession is under a void deed to the 97. Baker v. Murrey, 78 Wash. 241, 138 P. 890; Edwards v. White (Tex.), 120 S. W. 914; Summerville v. King, 98 Tex. 332, 83 S. W. 680 (mod. reh., 84 S. W. 643) ; In re Sloeum's Estate, 83 Wash. 158, 145 P. 204 ; In re Bail- ard, 173 Cal. 293, 173 P. 170; Scott v. Scott, 247 F. 976; Bowe v. Hibernia Sav. & Loan Soe., 134 Cal. 403, 66 P. 569; Mitchell v. Moses, 16 Cal. App. 594, 117 P. 685; Kin Raid v. Lee, 54 Tex. Civ. 622, 119 S. W. 342; Eich- mond V. Sims (Tex.), 144 S. W. 1142; Louisiana Civil Code, §§ 2369-2372; Succession of Planchet, 29 La. Ann. 520; Tally v. HafEner, 29 La. Ann. 583; Wingard v. Wiugard, 56 Wash. 389, 105 P. 834. 98. Sauvage v. Wauhop (Tex.), 143 8. W. 259; Cotten v. Friedman (Tex.), 158 S. W. 780; Merrell v. Moore, 47 Tex. Civ. 200, 104 S. W. 514 ; Moody v. Southern Pae. Co., 167 Cal. 786, 141 P. 388; Scott v. Scott, 247 F. 976. Under the Texas statute it was held that a monthly allowance received by a spouse from a spendthrift trust cre- ated in his favor is his separate es- tate. McClelland v. MeCleUand (Tex.), 37 8. W. 350. 99. Wade v. Wade, (Tex.), 106 S. W. 188. 1. Fulkerson v. StUes, 156 Cal. 703, 105 P. 966; Wells v. Allen (Cal.), 177 P. 180. 2. Daniel v. Daniel, 106 Wash. 659, 181 P. 215. 39 3. Knoblock & Bainold v. Posey, 126 La. 610, 52 So. 847. 4. Gutheridge v. Gutheridge (Tex.), 161 S. W. 892. 5. Janes v. Stratton (Tex.), 203 8. W. 386; Gameson v. Gameson (Tex.), 162 S. W. 1169; Otto v. Long, 144 Cal. 144, 77 P. 885; Houts v. First Trust & Savings Bank, — Cal. App. — , 168 P. 383. 6. Word V. CoUey (Tex.), 173 8. W. 629. 7. Mitchell v. Schofleld (Tex.), 140 S. W. 254; Villescas v. Arizona Cop- per Co., 20 Ariz. 268, 179 P. 963. In Texas, under Eev. St. 1895, arts. 2967, 2968, declaring that all prop- erty of the husband "owned or claimed ' ' by him before marriage, and that "acquired" afterwards by gift, devise, or descent, shall be his sepa- rate property, and all property "ac- quired" by the husband or wife dur- ing the marriage, except that "ac- quired" by gift, devise, or descent, shall be the common property of the husband and wife, ownership resting in adverse possession for 10 years, existing in part before marriage and in. part after marriage, is community property; the word "acquired" de- noting all property coming to hus- band or wife during coverture by title, other than by gift, devise, or descent; and the word "claim," when applied to land, importing a legal or equitable right to the land; and the words "owned or claimed" signify- § 585 HUSBAND AND WIFE. 610 wife, the consideration of which was paid from her separate es- tate,* but where title so acquired by spouses occupying jointly is perfected after the death of one, the estate so acquired inures to the separate estate of the survivor.' The community owns all property bought with community funds,^° and all property ac- quired in exchange for community property,'^ &s well as property purchased in part with community funds and in part with the joint note and mortgage of the spouses.^^ Community property also includes money borrowed by either spouse during coverture, in the absence of a different agreement,^* and property purchased with borrowed money,^* even though a note given jointly by the spouses for the repayment of the loan is later paid with the separate funds of one of them,^" and even though the transaction was made in another State, in the absence of proof of the laws of such other State.^* The same rules govern mortgages given to either spouse,^' and leases made to one of them during coverture,^* as well as debts due the spouses jointly, even where there is an agree- ment that when the debt is collected it shall be the wife's separate property.^' The following have been held to create a community property: money received by a husband under an agreement that he should have half his partner's winnings by gambling,^" money saved by a wife from her household allowance, in the absence of a different agreement,^^ money deposited to the joint account of the spouses in a savings bank, though the pass-book recites that ing a legal or equitable, ownership or 14. Northwestern & P. Hypotheek legal or equitable right to demand the Bank v. Eauch, 7 Ida. 152, 61 P. land. Sauvage v. Wauhop (Tex.), 143 516; Chaney v. Gauld Co., 28 Ida. 76, 5. W. 259. 152 P. 468 ; Main v. Scholl, 20 Wash. 8. Brown v. Poster Lumber Co. 201, 57 P. 800. (Tex.), 178 S. W. 787. 15. Katterhagen v. Meister, 75 9. Cook V. Houston Oil Co. of Texas Wash. 112, 134 P. 673. (Tex.), 154 8. W. 279. IG. Clark v. Eltinge, 29 Wash. 215, 10. Bollinger t. Wright, 143 Cal. 69 P. 736. 292, 76 P. 1108 ; Gilmour v. North 17. Nance v. Woods, 79 Wash. 188, Pasadena Land & Water Co., 178 Cal. 140 P. 323. 6, 171 P. 1066. 18. WiUiams v. Beebe, 79 Wash. 11. Witt V. Teat (Tex.), 167 S. W. 133, 139 P. 867. 302. 19. Gentry v. MeCarty (Tex.), 141 12. Bollinger v. Wright, 143 Cal. 8. W. 152. 292, 76 P. 1108. 20. In re Gold's Estate, 170 Cal. 13. Emerson-Brantingham Imple- 621, 151 P. 12. ment Co. v. Brothers (Tex.), 194 8. 21. MeMurray v. Bodwell, 16 CaL W. 608 ; Canfield v. Moore, 16 Tex. App. 574, 117 P. 627. Civ. 472, 41 8. W. 718. 611 COMMUNITY DOCTKINE. § 585 payment is to be made to either spouse producing the book,^'' prop- erty acquired under an agreement to pay the grantor an annual sum/* land paid for by the labor of an unemancipated wife and children while the husband is in the insane asylum/* land bought under an oral agreement made before marriage, where the price, to which the wife contributed, was not paid till after marriage,^'* property purchased on credit for a business conducted by the hus- band on the wife's property and paid for out of the profits of such business," and a ring purchased by the wife, in the absence of evidence that it was bought with her separate estate."''"''* The charac- ter of community property will not be changed by the fact that it is sold for taxes under a wrong description to a third person who reconveys it to the wife,"® nor by the fact that a partition decree allots lands previously purchased by the husband to himself and his wife,*" nor, conversely, where a partition decree allots to the husband alone land belonging to both spouses,*^ nor by an order of court directing a wife's successor as guardian to turn over to her fees earned by her as such guardian.*" No such estate is created where property is conveyed to a spouse without consideration so that he may qualify as surety on a bond,** nor where land is pur- chased by a surviving spouse with money secured from the com- munity estate.** Where a community estate has been created in land bought on a contract of sale, such interest will be forfeited where the terms of the contract are not complied with.*° In Idaho all property acquired by either spouse during coverture which is not separate property is community property.** 22. Lynam v. "Vorwerk 13 Cal. App. 31. O'Connor v. Vineyard, 91 Tei. 507, 110 P. 355. 488, 44 S. W. 485. 23. Winchester v. Winchester, 32. Scott v. Scott (Tex.), 170 S. W. 175 Cal. 391, 165 P. 965. 273. 24. Messimer v. Echols (Tex.), 194 33. Crenshaw v. Harris, 16 Tex. Civ. S. W. 1171. 263, 41 S. W. 391 25. /n re Mason's Estate, 95 Wash. 34. Griffin v. McKinney, 25 Tex., 564, 164 P. 205. Civ. 432, 62 S. W. 78. ' 26. Farmers ' State Bank v. Farmer 35. Converse v. La Barge, 92 Wash. (Tex.), 157 S. W. 283. 282, 158 P. 958. 27-28. Sweeney v. Taylor Bros., 41 36. Hall v. Johns, 17 Ida. 224, 105 Tex. Civ. 365, 92 8. W. 442 P. 71; Douglas v. Douglas, 22 Ida. 29 Meserole v. Whitney, 22 Ida. 336, 125 P. 796; Kohny v. Dunbar,. 543, 127 P. 553. 21 Ma. 258, 121 P. 544. 80. Cunha v. Hughes, 122 Cal. Ill, 54 P. 535, 68 Am. St. 27. § 586 HUSBAND AND WU^. 612 § 586. Public Lands Acquired by Grant or Entry. Wliere a husband acquires no interest in a homestead because bis location is invalid, the wife can take no community interest." Under the Federal HomeiStead Act a patent issued to a husband after the death of his wife creates a separate estate in him,^' as well as when he enters before marriage but gets his patent during coverture/' but under the same law a homestead acquired by the widow of a deceased homesteader after the dissolution of the com- munity is her separate estate,*" she having, under that statute, a right of residence, cultivation and patent where he dies before per- fecting his entry.*^ Under the same statute the homestead was held community property where there was a dispute as to part of the claim, and where the entryman died before paying for the disputed part, which was paid for after his death, and the patent issued in hia name.*^ That statute does not prevent the applica- tion of a State law which makes such land community property after patent.** In Arizona land acquired from the government by a spouse during marriage is community property.** In Louisi- ana a homestead made and cultivated for five years during the existence of the community is community property, though the final receipt is not issued till after the wife's death,*° as is a home- stead entered upon by a spouse under the Federal law during the existence of the community, even though final proofs, certificate and patent were not issued till after the dissolution of the com- munity by the death of the wife, the acquisition of property dating from the entry under that statute.** In New Mexico title obtained by a divorced husband to public lands by patent does not relate back to its initiation by entry and settlement, so as to make the homestead community property.*^ Under the Texas 37. Delaeey v. Commercial Trust 227 U. S. 368, 33 S. Ot. 380, 57 L. Co., 51 Wash. 542, 99 P. 574. Ed. . 38. WadMns v. Producers' Oil Co., 42. Douglas v. Nicholson, 140 La. 130 La. 308, 57 So. 937. 109-8, 74 So. 566. 39. Teyuor v. Heible, 74 Wash. 222, 43. Buchser v. Buchser, 231 TJ. S. 133 Pa. 1, 46 L. K. A. (N. 8.) 1033; 157, 34 S. Ct. 46, 58 L. Ed. — . Humbird Lumber Co. v. Doran, 24 44. Molina v. Bamirez, 15 Ariz. Ida. 507, 135 P. 66. 249, 138 P. 17. 40. Richard v. Moore, 110 La. 435, 45. Brown v. Fry, 52 La. Ann. 58, 34 So. 593 ; Cunningham v. Krutz, 41 26 So. 748. Wash. 190, 83 P. 109, 4 L. B. A. (N. 4G. Crochet v. MeCamant, 116 La. S.) 967; Crochet v. MeCamant, 116 1, 40 So. 474. La. 1, 40 So. 474, 114 Am. St. E. 538. 47. Baker v. Saxon, 24 N. M. 531, 41. Wadkins v. Producer Oil Co., 174 P. 991. ,813 COMMUNITY DOCTBINE. . § 586 statute offering land to volunteers for the defence of the Stat© Ih© interest of a married volunteer is community property,*' as is- a land certificate transferred to a husband during coverture,*' or before coverture where the location was not made till after mar-- riage,°° and land settled on before the death of the wife, whejff such death occurs before the completion of occupation/^ In that State a wife of one who acquires a right to land under a pre- emption survey and conveys it to another has only an equitable title by reason of her community interest. ''^ The question whether public land purchased from that State is conmiunity property or not is determinable by the character of the inception of the title,"' and if its inception takes place during marriage it is community property."* Under the Washington homestead statute land so ac- quired is community property,"' even though final proof is not made nor patent issued till after the wife's death," as well as a homestead patented to a husband under the Federal statute." It is otherwise where the entryman marries after making the entry, and before final proofs," and as to property acquired under coal land and mining entries." In the same State a wife divorced from her husband prior to his entry under the homestead law acquires no community interest in the homestead,'" nor does a wife living with her husband on land squatted on prior to homestead entry take a commuuity interest therein.'^ In the same State it has been held that the fact that community funds were used to pay for a timber claim which was the husband's separate estate would not give the wife an interest in or a lien upon the property itself." 48. Barrett v. Spenee, 28 Tex. Civ. 56. Eekert v. Schmitt, 60 Wash. 23, 344 67 S. W. 921. 110 P. 635; Ahem v. Ahem, 31 49. Booth v. Clark, 34 Tei. Civ. 315, Wash. 334, 71 P. 1023, ffe Am. St. B. 78 8. W. 392. 912; Cox v. Tompkinson, 39 Wash. 50. Phillips V. Palmer, 56 Tex. Civ. 70, 80 P. 1005. 91 120 8. W. 911. 57. Buchaer v. Morss, 202 F. 854, 51. Adams v. West Lumber Co. 121 C. C. A. 212; Curry v. Wilson, 57 (Tex.), 162 8. W. 974; Creamer v. Wash. 509, 107 P. 367. Briscoe, 101 Tex. 490, 109 8. W. 911. 58. Card v. Cerini, 86 Wash 419, 150 52. Kirby Lumber Co. v. 8mith P. 610 ; Kogers v. Minneapolis Thresh- (Tex.), 185 8. W. 1068. ing Mach Co. 48 Wash. 19, 92 P. 774. 53. MeClintic v. Midland Grocery & 59. Guye v. Guye, 63 Wash. 340, 115 Dry Goods Co. (Tex.), 154 8. W. P. 731. 1157- Stiles v. Hawkins (Tex.), 207 60. Hall v. Hall, 41 Wash. 186, 83 g -^ 89. P- l^^J m ^^- ^*- ^- ^°^^- 54. Hawkins v. StUes (Tex.), 158 61. Eeed v. St. Paul, M. & M. Ky. 8. W. 1011. Co., 234 F. 123. 65. (D. C.) Buehser v. Morss, 196 62. James v. James, 51 Wash. 60, 97 T 577 (affd., 202 T. 854). P. 1113 (affd. reh., 51 Wash. 66. 98 P. 1115). § 587 HDSBAin) AND WIFE. 614 § 587. Rents, Profits and Issues of Separate Estates. The rents and profits of separate estates of spouses are generally conmiTinity property,** as well as interest on such property/* and, in Louisiana, the revenue of the wife's paraphernal property" and property acquired by the use of separate property." Crops grown on a spouse's land are community property," as well as crops raised by a spouse on leased land though the other spouse gives a note for the seed,*' and, in Texas, the increase of separate livestock,*" but not the natural enhancement in value of separate property.'" Where a wife bought ginning machinery with her separate estate and sold a half interest to a son, later buying such interest back with the profits of the mill, it was held that the half so repurchased was community property as between herself and her husband.'^ Though an interest in a partnersihip business possessed by a spouse at marriage remains separate estate, yet whatever thereafter accrues from the personal activity of such spouse is community property. ''' It has been held otherwise as to money realized by a spouse from the sale of trees and plants grown in a nursery conducted by a spouse on land acquired before marriage, though the industry and attention of the spouse to the business was an important element." 63. Scott V. Seott, 247 F. 976; In 64. Pairisli v. "Williams (Tei.), 53 re Finn's Estate (Wash.), 179 P. S. W. 79. 103; Emerson-Brantingliam Imple- 65. Succession of McCloskey, 144 ment Co. v. Brothers (Tex.), 194 S. La. 438, 80 So. 650. W. 608; Succession T. Webre, 49 La. 66. First Nat. Bank of Plainview Ann. 1491, 22 So. 390 Texas Lumber v. McWhorter (Tex.), 179 S. W. 1147. & Loan Co. v. First Nat. Bank (Tex.), 67. Hanks v. Leslie (Tex.), 159 8. 209 S. W. 811; De Berrera v. Frost, W. 1056; Kreiale v. Wilson (Tex.), 33 Tex. Civ. 580, 77 S. "W. 637; Sharp 148 S. W. 1132. T. Zeller, 110 La. 61, 34 So. 129. 68. Davis v. Green, 122 Cal. 364, 55 Under the Texas statute the rents P. ff. of a wife's separate real estate, 69. Barr v. Simpson, 54 Tex. Civ. though community property, are not 105, 117 S. W. 1041; Wolford v. subject to community debts. Texas Melton, 26 Tex. Civ. 486, 63 S. W. Lumber & Loan Co. v. First Nat. 543; Jordan v. Maroantell (Tex.), Bank (Tex.), 209 S. W. 811. 147 S. W. 357. Where the spouses owned adjoining 70. Guye v. Guye, 63 Wash. 340, fruit orchards and the husband man- 115 P. 731. aged and sold the crop raised on both, 71. Miller v. Fenton (Tex.), 207 it was held that the wife's share of 8. W. 631. the proceeds were not community 72. In re Gold's Estate, 170 Cal. property, subject to its debts. Ten- 621, 151 P. 12. nyson v. Beggs, 176 Cal. 255, 168 P. 73. In re Pepper's Estate, 158 Cal. 140. 619, 112 P. 62. ,615 COMMUNITY DOCTKINE. § 589 § 588. Improvements on Separate Estates. In Oalifomia it is held that a wife's separate property ia not made community property by the fact that the labor of the hus- band contributed to building a house on such property, or by the fact that he advanced money to pay a mortgage thereon.'* In Louisiiana improvements made with community funds on separate estate are a charge on such separate estate in favor of the com- munity/^ though, subject to the claim of the community, such buildings belong to the spouse on whose separate estate they are placed,'" who must pay their value to the community in order to claim them." The community can recover from the spouse only the amount to which the value of the separate estate has been enhanced thereby,'* at the date of the dissolution of the com- munity.'" In Texas such improvements are community prop- erty,*" but the burden of showing that community funds were so used is on those claiming the improvements as community prop- erty.*^ In Washington it is held that improvements on separate property paid for with separate estate are not community property though the other spouse makes them under employment from the owner of the separate estate.*^ § 589. Damages Recovered by Spouses. Under most statutes rights of action accruing to and damages i^eovered by either spouse are community property,** even if the 74. Carlson v. Carlson, 10 Cal. App. 82. Glaze v. Pullman State Bank, 300, 101 P. 923. 91 Wash. 187, 157 P. 488. 75. Succession of Webre, 49 La. 83. Martin v. Southern Pac. Co., 130 Ann. 1491, 22 So. 390. Cal. 285, 62 P. 515; Moody v. South- 76. Sims V. Billington, 50 La. Ann. ern Pac. Co., 167 Cal. 786, 141 P. 968, 24 So. 637. 388; Justis v. Atchison, T. & S. P. 77. Succession of Burke, 107 La. Ry. Co., 13 Cal. App. 639, 108 P. 328 ; 82, 31 So. 391. GifFen v. City of Lewiston, 6 Ida. 231, 78. Succession of Meteye, 113 La. 55 P. 545; Labonte v. Davidson, 31 1012, 37 So. 909. Ida. 644, 175 P. 588; Ft. Worth & E. 79. Dillon v. Freville, 129 La. 1005, G. Ey. Co. v. Eobertaon, 55 Tex. Civ. 57 So. 316. 309, 121 S. W. 202; Schneider v. 80. Brady v. Maddox (Tex.), 124 Biberger, 76 Wash. 504, 136 P. S. W. 739; Cervantes v. Cervantes 701; Maynard v. Jefferson County, (Tex.), 76 S. W. 790; Hillen v. Wil- 54 Wash. 649, 653, 103 P. 418; liams, 25 Tex. Civ. 268, 60 8. W. 997; Bohan v. Bohan (Tex.), 56 S. W. Maddox v. Summerlin, 92 Tex. 483, 959; City of San Antonio v. Wil- 49 S. W. 1033; Summerville v. King denstein, 49 Tex. Civ. 514, 109 [(affd., 98 Tex. 332, 83 S. W. 680), S. W. 231; Posener v. Long (Tex.), mod. reh., 84 S. W. 643]. 156 S. W. 591; Chicago, E. L & G. 81. Welder V. Lambert, 91 Tex. 510, Ey. Co. v. Oliver (Tex.), 159 S. W. 44 S. W. 281. 853; Hawkins v. Front, etc., E. Co., § 591 HUSBAin> AITD WIFB. 61(t cause of action accrues after the spouses have permaneiitly sepa- rated.** Under the Louisiana statute damages recovered by a wife, for personal injuries are her separate proper^." § 590. Wife's Earnings. Where the community doctrine prevails, earnings of the wife are community property,'* if earned while living together,'^ unless the husband has given them to her,** or unless, in Louisiana, there has been a separation of property,*' or unless earned in a juris- diction where such earnings are separate property," even though earned in the active management of her husband's business as the " man of the family."*^ The same rule applies to property ac- quired in the wife's name and paid for with her earnings during coverture,"* § 591. Property in Part Community Property and in Part Separate Estate. Property purchased by a spouse in part with community funds and in part with separate estate is pro rata community property and separate estate." The same is true wliere the purchase is in 3 Wash. 592, 1021; Ezell t. Bodson, 60 Tex. 331; Hynes v. Colman, etc., Co., 108 Wash. 642, 185 P. 617; Davis T. Davis (Tex.), 186 8. W. 775. 84. Ligon v. Ligon, 39 Tex. Civ. 392, 87 8. W. 838. 85. Martin ▼. Derenbecker, 116 La. 495, 40 S. 849. 86. Johnson v. Dnrfoid, 39 Tex. 242; LiUy v. Yeary (Tex.), 152 8. W. 823; Gentry v. McCarty (Tex.), 141 8. W. 152; Henry v. Land (Tex.), 168 S. W. 994; Cline v. Hackbarth, 27 Tex. Civ. 391, 65 8. W. 1086; Fisher v. Marsh, 69 Wash. 570, 125 P. 951; Lewis v. Bums, 122 CaL 358, 55 P. 132; Succession of Manning, 107 La. 456, 31 So. 862; Barr v. Simpson, 54 Tex. Civ. 105, 117 8. W. 1041. See Fisk v. Flores, 43 Tex. 340. 87. Moore v. Crandall, 205 F. 689, 124 C. C. A. 11; FenneU v. Drink- house, 131 Cal. 447, 63 P. 734, 82 Am. St. E. 361. 88. Dority v. Dority, 30 Tex. Civ. 216 (affd., 96 Tex. 215, 71 8. W. 950, 60 L. R. A. 041); Ahlstrom v. Tage, 31 Ida. 459, 174 P. 605. 89. Knight v. Kaufman, 105 La. 35, 29 So. 711. 90. Meyers v. Albert, 76 Wash. 218, 135 P. 1003. Under the Texas stat- ute of 1911, the wife's earnings, either before or after the enactment of the statute, are separate estate and not community property. Scott v. Scott (Tex.), 170 8. W. 273. 91. Bekins v. Dieterle, 5 CaL App. 690, 91 P. 173. 92. Knight v. Kaufman, 105 La. 35, 29 So. 711. 9S. Beneke v. Beneke, 47 Wash. 178, ?1 P. 641; Texas Moline Plow Co. v. Clark (Tex.), 145 8. W. 266; Letot V. Peacock (Tex.), 94 S. W. 1121; Moore v. Moore, 28 Tex. Civ. 600, 68 8. W. 59 ; Hillen v. Williams, 25 Tex. Civ. 268, 60 8. W. 997; In re Finn's Estate (Wash.), 179 P. 103; Ochoa v. Edwards (Tex.), 189r 8. W. 1022; Miller v. Odom, 106 Tex. 36, 152 8. W. 1185; Stmad v. Stmad, 29 Tex. Civ. 124, 68 S. W. 69. 617 COMMUNITY DOCTRINE. § 592 part with separate funda and in part with a joint note of the spouses,** or with a sole note of the spouse/^ and where a spouse purchases property in part with separate estate and in part with money borrowed during coverture.'* In Texas where spouses sold land owned half by the community and half by the wife, it was held that the husband's receipt of and control over cash and notes received in payment did not deprive the wife of her right to half 8uch cash and notes." § 592. Separate Estate Distinguished. The character of community property does not attach to prop- erty owned by a spouse before marriage,"* or to property bought with the separate funds of a spouse" even though bought on credit, if afterwards paid for with separate funds,^ and even though its buildings are burned and are replaced with money secured by fire insurance, the premiums of which are paid for with the separate estate of the other spouse.* The rule applies even though advancements on the purchase price were made before marriage by the other spouse,* and to any property acquired after marriage with the proceeds of separate property,* and to prop- erty occupied by spouse for many years before marriage under a claim of ovmership, though such ownership was not perfected by deed till after marriage,® especially where the spouse pays part of the purchase price before marriage from his separate estate,* and improved it.^ Crops growing on land rented by a spouse at the time of marriage, remain separate estate,* as well as funds or a 94. Katterhagen v. Meister, 75 Deschamps' Estate, 77 Wash. 514, Wash. 112, 134 P. 673 ; Barr v. Simp- 137 P. 1009. son, 54 Tex. Civ. 105, 117 S. W. 1041. 1. O'ParreU v. O'FarreU, 119 S.W. 95. Heintz v. Brown, 46 Wash. 387, 899, 56 Tex. Civ. 51 ; McClintio T. 90 P. 211. Midland Grocery & Dry Ooods Co. 96. Northwestern & P. Hypotheek (Tex.), 154 S. W. 1157. Bank v. Eaueh, 7 Ida. 152, 61 P. 516. 2. Eolater v. Bolater (Tex.), 198 97. Oehoa v. Edwards (Tex.), 189 S. W. 391. S W. 1022. 3. Morse v. Johnson, 88 Wash. 57, 98. Douglas v. Douglas, 22 Ida. 336, 152 P. 677. 125 P. 796; In re Cudworth's Estate, 4. Worden v. Worden, 96 Wash. 133 Cal. 463, 65 P. 1041; Graves v. 592, 165 P. 501. Columbia Underwriters, 93 Wash. 196, 5. In re Pepper's Estate, 158 Cal. 160 P. 436; Allen v. Allen (Tex.), 619, 112 P. 62. 158 S. W. 104; Eslinger v. Eslinger, 6. Guye v. Guye, 63 Wash. 340, 115 47 Cal. 62; Lake v. Lake, 52 Cal. P. 731. 428 7. Guye v. Guye, 63 Wash. 340, 115 99. Clark v. Baker, 76 Wash. 110, P. 731, 37 L. E. A. (N. S.) 186. 135 P. 1025; Powers v. Munson, 74 8. Booker v. Booker (Tex.), 207 8. Wash. 234;' 133 P. 453; In re W. 675. § 592 HUSBAIfD AND WIFE. 618 partnership existing before marriage between the spouses which were before marriage appropriated by one of them,* and a claim of a wife to damages for indignities suffered before marriage.** Property received in exchange for separate estate remains such," as well as land acquired during a second marriage by the exchange of land held as commimity property during the first marriage,'* and separate estate conveyed to the other spouse and by such spouse recognized to the grantor.'^ The character of property as separate estate is not changed by the fact that the husband joins in a mortgage of it either to improve it,'* or to pay the purchase price," or though improvements are made with community funds,'* but in such case the property is community property to the extent of the improvements.'^ Of a wife's separate property she retains the full right of dominion, and may resume it at any time; and debts contracted by her, inuring to its benefit, bind her.'* Under the Idaho statute providing, inter alia, that rents and profits of separate estate is community property, but that the separate estate of the wife is exempt from her husband's debts, it was held that the increase of her livestock was separate estate.'* The same was formerly held in Louisiana of the increase of slaves.*" A com- munity estate is not created where laf ter a wife's death a husband secures title under a tax deed issued, but not recorded, before her death,*' even where the tax deed was to both spouses, if the wife dies before the limitation period has run."* A yacht which is the separate estate of the wife remains such though registered in the name of the husband, and kept in his possession remains such, 9. Lennlnger v. Lenninger, 167 Cal. 15. Stewart v. Weiser Lumber Co., 297, 139 P. 679. 21 Ida. 340, 121 P. 775. 10. St. Louis Southwestern By. Co. 16. Schwartzman v. Cabell (Tex.), T. Wright, 33 Tex. Civ. 80, 75 S. W. 49 8. W. 113. 565. 17. Clardy v. Wilson, 24 Tex. Ciy. 11. HoUy St. Land Co. v. Beyer, 48 196, 58 8. W. 53. Wash. 422, 93 P. 1065; Smith v. 18. Jordan y. Anderson, 29 La. Ann. Weed, 75 Wash. 453, 134 P. 1070. 749; Grant v. Whittlesey, 43 Tex. 320. 12. Haring v. Shelton (Tex.), 114 19. Thorn v. Anderson, 7 Ida. 421, 8. W. 389; Succession of Bouse, 144 63 P. 593; Bank of Nez Perce v. La. 143, 80 So. 329. Pindel, 193 F. 917, 113 C. C. A. 545. 13. Grandchampt v. Administrator 20. Bradish v. Johnson, 6 La. Arm of Succession of Eillis, 124 La. 117, 49 639, note. So. 998; Brown v. Davis, 98 Wash. 21. GafEord v. Foster, 36 Tex. Civ. 442, 167 P. 1095; Shook v. Shook 56, 81 8. W. 63. (Tex.), 125 8. W. 638. 22. Sweeny v. Taylor Bros., 41 Tex. 14. Graves v. Columbia Under- Civ. 365, 92 S. W. 442. writers, 93 Wash. 196, 160 P. 436. aiii«l V. Stewart, 55 Ala. 278; Birmingham Bldg. & Loan Ass'n, 121 Fumess v. MeGovem, 78 HI. 337. Ala. 278, 35 8. 820; Campbell v. Gal- 17. Lewis V. Ferris (N. J.), 50 A. breath, 12 Bush (Ky.), 459; Corey v. 630; Herring v. Fitts, 43 Fla. 54, 30 Howard, 19 E. I. 723, 37 A. 946; S. 804; Christensen v. HoUngsworth, Moore v. Moore (Okla.), 158 P. 578; « Ida. 87, 53 P. 211, 96 Am. St. E. Bechtol v. Ewing (Ohio), 105 N. E. 256. 72; Gage v. Gage, 78 Wash. 262, 138 18. See supra, Eeinheimer v. Carter, P. 886 ; Duncan v. Duncan, 6 Cal. 31 Ohio St. 579; Baird v. Fletcher, 50 App. 404, 92 P. 310; Walker t. Gil- Vt. 603. As to actions affecting the man, 45 Me. 28; Ackly v. Tarbox, 31 wife's real estate, where the adult hus- N. Y. 565 ; Furrow v. Chapin, 13 Kan. band is under guardianship for insan- 107 ; Alexanders v. Goodwin, 54 N. H. ity, &c., see Hamilton v. Colwell, 10 423; Forbes v. Tuekerman, 115 Mass. E. L 39. 115; Peters v. Fowler, 41 Barb. (N. 19. Act 33 and 34 Viet., eh. 93 T.) 467; Emerson v. Clayton, 32 111. (1870). 493; lieonard v. Townsend, 26 Cal. 20 Willis V. J. G. White & Co., 150 435; Weymouth v. Chicago, &e., E. E. N. C. 199, 63 S. E. 942 ; Sonnemann v. Co., 17 Wis. 550 ; Jordan v. Cummings, Loeb, 11 App. D. C. 143; Gallagher 43 N. H. 134; Gee v. Lewis, 20 Ind. v. Mjelde, 98 Wis. 509, 74 N. W. 340; 149; Beavers v. Baucum, 33 Ark. 722; Porter v. Taylor, 64 Fla. 100, 59 So. Earnhardt v. Clement, 137 N. C. 91, 400 ; Gotcher v. Haefner, 107 Mo. 270, 49 S. E. 49. § 645 HUSBAND AND WIFE. 678 such statutes he may join with her in such an action/' Under- such statutes she may contest a will alone.^^ Under some Married Women's Acts a wife may now sue alone without regard to her separate estate,^* against persons other than her husband.''* Where property of each spouse is included in a mortgage under which' an illegal sale is made, the wife may sue alone to avoid the mort- gage as to hoth.^° A wife may maintain an action to have a deed' declared a mortgage where she incurred the deht and made the contract under which the property was conveyed and has an in- terest in the land.^® Where a contract was assigned to a wife in Illinois, it was held that she might sue on it in Missouri, regard- less of the common-law presumption that the common law pre- vailed in Illinois, which would have obliged her to sue in equity.*^ Under other statutes her husband must be joined.^' In Louisiana a wife may sue in her own name to recover her paraphernal funds."" The proper form of such action in that State is by the wife, with the authorization of the court or her husband.*" Th6 husband's authorization must appear of record in order to enable her to sue,*' but it is enough if it is filed before trial on the. merits,*'' and is sufficiently shown where he joins in the action,** 21. City of New Albany v. Lines, 21 Thomas (Tex.), 178 S. W. 707; Ennis Ind. App. 380, 51 N. E. 346 ; Mitchell v. Nusbaum, 90 Kan. 296, 133 P. 537. y. Penny, 66 W. Va. 660, 66 S. E. 24. In re Hill, 190 F. 390; Schnltz 1003; Clay v. City of St. Albans, 43 v. Christopher, 65 Wash. 496, 118 P. W. Va. 539, 27 S. E. 368, 64 Am. St. 629. E. 883; Cox v. St. Louis, M. & S. E. 25. Shew v. Call, 119 N. C. 450, 26 Ey. Co., 123 Mo. App. 356, 100 S. W. S. E. 33, 56 Am. St. E. 678. 1096. 26. Eodda v. Needham, 78 Wash. 22. JnreBeauohamp's Will, 146 N. 636, 139 P. 628. C. 254, 59 S. E. 687; Pierce v. Farrar 27. Coombea v. Knowlson (Mo.), 800 (Tex.), 126 S. W. 932. S. W. 743. 23. ChUd V. Emerson, 102 Mich. 38, 6 28. Fink v. Campbell 70 F. 664, 17 N. W. 292; Fox v. Manufacturer's C. C. A. 325, 37 U. S. App. 462; Sa- Fire Ins. Co., 31 W. Va. 374, 6 S. E. marzevosky v. Baltimore City Paas. 929; Howard v. Gibson, 22 Ky Law, Ey. Co., 88 Md. 479, 42 A. 206. 1294, 60 8. W. 491 ; Wright v. Wright, 29. Hart v. Bowen, 86 F. 877, 31 C. 97 Ind. 444; Turner v. GiU, 105 Ky. C. A. 31 (cert, den., 171 U. S. 688, 18 414, 20 Ky. Law, 1253, 49 S. W. 311; Sup. Ct. 943). Eichmond Ey. & Electric Co. v. 80. Martin v. Derenbecker, 116 La. Bowles, 92 Va. 738, 24 S. E. 388; 495, 40 So. 849. Buck V. Troy Aqueduct Co., 76 Vt. 31. M. M. Sanders & Son v. Schill- 75, 56 A. 285; Holmes v. Leadbetter, ing, 123 La. 1009, 49 So. 689. 95 Mo. App. 419, 69 S. W. 23 ; Eice 32. Evans, v. De L'Isle, 24 La. Ann. Stix & Co. T. Sally, 176 Mo. 107, 75 S. 248. W. 398 ; Quirk v. Liebert, 12 App. D. 33. Delacroix v. Meux, 28 La. Ann. C. 394; Texas City Terminal Co. v. 515. 6'i'9| ACTIONS. § 646 which is the proper method of showing his authorization.'* In the same State where a wife is not property authorized to aue, the defendant may be relieved from answering till suoh authority is obtained.*" In case of the interdiction of the husband, the court may authorize the wife to sue.^* Under a later statute suoh authorization is not necessary to enable the wife to maintain an action for personal injuries.*' She cannot maintain an appeal without such authorization.*' An infant wife may sue for par- tition where aided and assisted by her husband, without the au- thority of the judge, on the advice of a family meeting.*' The Michigan statute enabling a wife to sue in her own name for exempt property seized on process against her husband applies only where the seizure was on adversary process against him.*° Under the South Dakota statute it was held that the wife could maintain an action for injury to her rights by the sale of opium to her hus^band.*^ § 646. Necessity of Joining Husband as Party-at-Law. At common law both spouses must join to recover on a cause of action accruing to the wife before coverture.*^ Under the California statute a husband need not be joined in an action on a note which is his wife's separate estate, though the consider- ation of the note was at one time community property,** but it is proper to join him.** Under the Indiana statute a husband is not a proper party to an action against a wife for breach of an agree- ment made by him as her agent to make improvements on land demised by her.*° Though under the Kentucky statute a wife can- not sell her land without her husband's joinder, he is not a neces- sary party to an action to enforce a lien on such land.** In Massa- chusetts a husband is a proper party to a suit to charge a wife's S4. Jones v. Henry, Man. Unrep. 41. Moberg v. Seott, 38 S. D. 422, Gas. (La.), 65. 161 N. W. 998, L. R. A. IfflTD, 732. 35. Longino v. Webb Press Co., 132 42. Hennessey v. White, 2 Allen La. 25, 60 So. 707. (Mass.), 48. 3S. Cartwright v. Puissigur, 125 La. 43. Cullen v. Bisbee, 168 Cal. 695, 700, 51 So. 692. 144 P. 968. 37. Shield v. F. Johnson & Son Co., 44. Clark v. Koesheyan, 26 Cal. App. 132 La. 773, 61 So. 787. 305, 146 P. 904; Carver v. Thoman, IS 38. Jurey & Harris v. Herd, Man. Ariz. 38, 135 P. 724. Unrep. Cas. (La.), 52. 45. Richardson v. League, 21 Ind. 89. Tobin v. TT. S. Safe Deposit & App. 429, 52 N. E. 618. Sav. Bank, 115 La. 366, 39' So. 33. 46. Rhodes v. People's Sav. & Bldg. 40. Singer Mfg. Co. v. Cullaton, 90 Ass'n, 107 Ky. 11?, 21 Ky. Law, 747, Mich. 639, 51 N. W. 687. 52 S. W. 1050. § 647 HUSBAND AND WIFE. 680 separate estate with a debt created by an invalid mortgage.*^ In some States his joinder is optional with the wife.** Where she is neither a necessary or proper party her joinder is fatal to the action.** Where the wife should not sue alone in law, it might appear that, in respect of separate property, the husband should sue alone as trustee for her; ao that in either case their joint suit would be bad.*" § 647. In Equity. While, as concerns suits by a wife at law in respect to her separate estate, it may not be deemed necessary to join the husband with her as plaintiff, in equity proceedings it might be different, for here all interested parties are to be embraced in a bill. Thus, where the wife seeks to enforce a vendor's lien for money on land conveyed by her and her husband, but belonging solely to her, it is proper that the husband should be made a party, so as to protect the title from any subsequent claim on his part.'* But the Massa- chusetts act is construed as to " suing and being sued," so that the husband need not be made a party complainant, even to a bill in equity brought by the wife, where it concerns her separate prop- erty." Chancery proceedings may be instituted by the wife as it would appear, by her next friend or otherwise, in respect of her sepa- rate property, so as to render the husband a party defendant and bind him by the decree."' In Florida a husband is a necessary party to a suit to enforce his wife's mortgage."* In West Virginia where a bill against spouses jointly on joint and several notes was 47. Hebum v. Warner, 112 Mass. DaTidson, 3 Tenn. Ch. 426, where tjie 271, 17 Am. St. B. 86. husband may be deemed an interested 48. Bowers v. Starbuok (Ind.), 116 party defendant. So as to restraining N. E. 301 ; Normile v. Wheeling Trae- the collection of an illegal tax, where tion Co., 57 W. Va. 132, 49 S. E. 1030, both husband and wife occupy the 68 L. E. A. 901. land as their home. Henry v. Gregory, 49. Oakley v. Emmons, 73 N. J. 29 Mich. 68. See further, Koehler v. Law, 206, 62 A. 996. Bemicker, 63 Mo. 368. 50. Bell V. Allen, 53 Ala. 135. And 6S. Cantrell v. Davidson, 3 Tenn. Ch. see Wilson v. Garaghty, 70 Mo. 517. 426 ; Sobinson v. Trofitter, 109 Mass. 51. Wing V. Goodman, 75 HI. 159. 578; Bennett v. Winfleld, 4 Heisk. 52. Forbes V. Tuckerman, 115 Mass. (Tenn.) 440; Eeynaud v. Memphis 115. This appears to be the New Jer- Ins. Co., 7 Baxt. (Tenn.) 279. sey rule. Tantum v. Coleman, 26 N. 54. Garrison v. Parsons, 45 Fla. 335, J. Eq. 128. But of. Eobinson v. Tro- 33 So. 525. fitter, 109 Mass. 578; Cantrell t. 681 ACTIONS. § 649 dismisesd on defmurrer as against the husiband, it was held tliat the action might proceed against the wife.°° § 648. Necessity of Guardian ad Litem or Next Friend. A married woman sometimes sues properly by a next friend."" The object of suing by next friend is to secure the costs, or for convenience, where she is disqualified to act for herself in the matter sued on.°' Where she is insane, for instance, the law will not in general presume her consent to a bill in equity filed by her husband in their joint names, nor his agency in employing an attorney to represent her; her interests being distinct from his own.°* A statute guardian is sometimes appointed to protect the separate interests of an insane married woman, with relation to her property, or suits in which she is concerned."* Where the action is against the husband, as for divorce or alimony, or in cases involving trusts, title or management or property, etc., no next frend is necessary. "'' In Florida a wife sues by her husband as next friend."^ Under the New Jersey Married Women's Act a wife may sue in equity without a next friend to recover costs awarded in proceeding for divorce a mensa et thoro.^' § 649. Effect of Husband's Refusal to Join. In Kentucky she may sue alone if he refuses to join.'* Under that statute desertion and failure to support the wife for several years has been held a refusal to unite with her in actions she may bring against third persons.** In Indiana he may be joined as defendant, if he refusfes to join as plaintiff.'" In Pennsylvania if the husband does not join within twenty days after service of a rule to join, the wife may proceed alone." In Texas a husband 55. Skidmore v. Jett, 39 W. Va. 544, 123, 19 Ky. Law, 308, 39 S. W. 844, 20 S. E. 573. 72 Am. St. E. 397 ; Anderson v. An- 56. Leftwiek v. Hamilton, 9 Heisk. derson, 11 Bush (Ky.), 327 (decided (Tenn.) 310. under a former statute). 57. Wood V. Wood, 56 Fla. 882, 47 64. Baumeister v. Markham, 101 So. 560. Ky. 122, 19 Ky. Law, 308, 39 S. W. 58. Stephens v. Porter, 11 Heisk. 844, 72 Am. St. R. 397; Hart v. (Tenn.) 341. Bowen, 86 P. 877, 31 C. C. A. 21 (cert. 59. Gardner v. Maroney, 95 lU. 552. den., 171 U. S. 688, 18 S. Ct. 943). 60. Wood V. Wood, 56 Fla. 882, 47 65. Logan v. Logan, 77 Ind. 558. S. 560. 66. Bockwell v. Waverly, S. & A. 61. Wood V. Wood, 56 Fla. 882, 47 Electric Traction Co., 187 Pa. 568, 41 So. 560. A. 324, 43 W. N. C. 105; Donoghue v. 62. Van Orden v. Van Orden (N. Consolidated Traction Co., 201 Pa. J.), 41 A. 671. 181, 50 A. 952. 63. Baumeister v. Markham, 101 Ky. § 663 HUSBAND AltD WIFK. 682 may sue, either alone or with his wife, to recover her separate estate, and she may sue alone with the audiority of court, if he neglects or refuses to do so.*' § 650. E£Eect of Separation. In some States a deserted wife may sue alone,'* as well as where the spouses are separated,*" especially where he refuses to join,'* even though the desertion has not continued long enough to be cause for divorce.'^ In Florida the wife may sue alone if the hushand has deserted her and the desertion has continued six months.'* § 651. Compromise of Claim. A wife may make a compromise and settlement as to claims, by right of her separate estate.'* § 652. Contract. A wife may sue alone for rent under her lease,'* or on an agree- ment to convey real efitate to her, which did not name her husband as a party.'* In Delaware, Greorgia, Iowa, Maryland and New York a wife may recover for board furnished by her only with 67. Kingsbury v. Phillips (Tex.), 142 8. W. 73 ; Western Bank & Trust Co. v. Gibbs (Tex.), 96 S. W. 947. 68. Missouri, K. & T. Ey. Co. v. Allen, 53 Tex. Civ. 433, 115 S. W. 1179; Brown v. Brown, 121 N. C. 8, 27 8. E. 998, 38 L. E. A. 242; Koeh T. City of Williamsport, 195 Pa. 488; Missouri, K. & T. Ey. Co. v. Hennesey, 20 Tex. Civ. 316, 49 S. W. 917; Word V. Kennon (Tex.), 75 S. W. 365; Heagy v. Kastner (Tex.), 138 8. W. 788; Union Oil Co. v. Stewart, 158 Cal. 149, 110 P. 313; Madden v. Hall, 21 Cal. App. 541, 132 P. 291 ; Duncan V. Duncan, 6 Cal. App. 404, 92 P. 310 ; MuUer v. Hale, 138 Cal. 163, 71 P. 81. 69. Horton v. City of Seattle, 53 Wash. 316, 101 P. 1091; Work v. Campbell, 164 Cal. 343, 128 P. 943. 70. City of San Antonio v. Wilden- stein, 49 Tex. Civ. 514, 109 S. W. 231. 71. Humphrey v. Pope, 122 Cal. 253, 54 P. 847. 72. Saunders Transfer Co. v. tTn- derwood (Fla.) 81 So. 105. 73. Husband v. Epling, 81 IlL 172 ; Lewis V. Ounn, 63 Ga. 542. 74. Hayner v. Smith, 63 HL 430. 75. Stampoffski v. Hooper, 75 111. 241. For suit for injury to reversion of her land, as .distinguished from injury to the joint marital possessions or crops, see Lyon v. Green Bay E., 42 Wis. 548; Indianapolis E. v. Mc- Laughlin, 77 111. 275. Where the suit relates to unpaid taxes upon the wife 's land, the wife may sue, and show by parol that they are her separate landa, notwithstanding they were taxed to her husband. Dinsmore v. Winegar, 57 N. H. 382. Cf. Williams v. Turner, 50 Tex. 137. The husband cannot maintain trespass qu. cl. fr. against one who carries away soil from his wife's farm. Bradford v. Hanscom, 6e Me. 103. The Statute of Limitations runs, as usual, so far as the coverture disa- bility has been removed under the local act. Hayward v. Gnnn, 82 IQ. 385. 683i ACTioHS. § 653 hear husband's consent.'"' Under the Delaware, Indiana and Mis- souri Married Women's Acts a wife may recover for her personal labor performed for persons other than her husband," and where the services were rendered jointly the spouses may recover therefor in a joint action/* In Iowa where a farm hand contracted to work for a stipulated sum and the board of himself and wife, she . to assist in the housework, it was held that he alone could sue for its breach, there being no independent employment of the wife.''' Under the Michigan statute a wife may recover for her services only where the consent of the husband is communicated to the debtor and where the latter understands that he is contracting with the wife and that she expects compensation.*" In New Jersey the husband only can recover for such services.'* In Ohio a wife may recover in her own name for special care and atten- tion given to an invalid for whose board and lodging her husband has already received payment.*^ § 653. Confession of Judgment. A wife cannot usually confess judgment, though it be for a debt incurred for the benefit of her separate estate, as this is not beneficial to her, and its exercise is liable to abuse.** 76. Neudeeker v. Leister (Md.), 104 80. Brackett's Estate v. Burnham'g A. 47; In re Grogan's Estate, 82 Misc. Estate (Mich.), 174 N. W. 121; Heral 555, 145 N. T. 8. 285; Broughton v. v. McCabe, 171 Mich. 530, 137 N. W. Nicholson, 150 la. llff, 129 N. W. 814; 237. Tucker v. Anderson (la.), 154 N. W. 81. Garretson v. Appleton, 58 N. J. 477; Central of Georgia Ey. Co. v. Law, 386, 37 A. 150; Peterson v. Cheney, 20 Ga. App. 393, 93 S. E. 42 ; Christiansom, 68 N. J. Law, 392, 56 Johnson v; Tait, 97 Misc. 48, 160 N. A. 288; Wooster v. Eagan, 88 N. J. T. 8. 1000; Briggs v. Devoe, 89 App. Law, 687, 97 A. 291; Stevenson v. Div. 115, 84 N. Y. S. 1063 ; Vincent v. Akarman, 83 N. J. Law, 458, 85 A. Ireland, 2 Pennewill (Del.), 580, 49 166. A. 172; In re Dailey's Estate, 43 82. Badger v. Orr, 1 Ohio App. 293, Misc. 552, 89 N. T. 8. 538 ; Holcomb 34 Ohio Cir. Ct. 328. V. Harris, 166 N. T. 257, 59' N. E. 83. Watkins v. Abrahams, 24 N. J. 820. '8. -A-nd see Patton v. Stevens, 19 77. LUlard v. Wilson, 178 Mo. App. Ind. 233. Otherwise in some States, 609; Arnold v. Eifner, 16 Ind. App. for the right itself is theoretically in- 442, 45 N. E. 618 ; Lodge v. Fraim, cidental to the liability of being sued 5 Pennewill (Del.), 352, 63 A. 233. as if sole. Bank v. Garlinghouse, 53 78. Lambert v. Hodgdon, 172 Mo. Barb. (N. T.) 615; Travis v. Willis, 24, 154 S. W. 450. 55 Miss. 557. See Thomas v. Lowy, 79. Weeksman v. Powell (la.), 160 60 HI. 512. N. W. 377. § 656 HUSBAND AND WIFE. 684 § 654. Submission to Arbitration. A wife may, in some States, bind herself by a submission to ar'bitration.'* § 655. In Tort; in General. At common law the husband was entitled to the recompense for all such injuries to the wife's person, property, or character, by suit brought in his own name, or in the name of both, as the case might be.°° And the rule is the same in all these cases, whether the fraud or injury was committed before or during coverture. But if the wife be a privy to the wrong, or knowingly suffer an injury to be committed upon her, the husband cannot maintain his action; for his right to damages cannot be greater than hers would have been, had she remained single." Nor can an action be maintained where the husband instigates the wrong." Where the tort was committed before the woman was married, the action, if she marries afterwards, should be brought by husband and wife ; or if she marries pending the action, the husband is en- titled to be admitted as a plaintiff.'* Under certain local statutes, too, a wife may now sue a liquor-dealer for damages caused her by selling liquors to her husband,** or a gamester for money lost by her husband at gaming." § 656. Under Married Women's Acts. The tendency of modern legislation is to secure to th© wife's separate use all compensation in the nature of damages for injuries sustained by her through the negligence or misconduct of others,** and the wife sues in her individual name in many States to obtain 84. Palmer v. Davis, 28 N. T. 242 ; 90. Eead v. Stewart, 129 Mass. 40T. Duren V. Getchell, 55 Me. 241. As to 91. Waldo v. Goodsell, 33 Conn. 432; Mississippi, cf. Handy v. Cobb, 44 Moody v. Osgood, 50 Barb. (N. T.) Miss. 6?9; Memphis R. v. Scruggs, 628; Knapp v. Smith, 27 N. T. 277. 50 Miss. 284. Where her husband is insane and 85. See supra, § 157. out of the State, the wife may sue, on 86. Pillow V. Bushnell, 5 Barb. (N. her personal wrong, in her own name. T.) 156. Gustin v. Carpenter, 51 Vt. 585. 87. Tibbs v. Brown, 2 Grant 's Cases, Where the wife is required to sue 39. Nor in slander where the words alone by statute, the husband's are not actionable, though the wife joinder is ground for reversal. Chi- become ill in consequence of the cago v. Speer, 66 111. 154. As to slander. Wilson v. Goit, 17 N. T. "notice of injury," see Babcoek v. 442. Guilford, 47 Vt. 519; Church v. West- 88. Gibson v. Gibson, 43 Wis. 23. minster, 45 Vt. 380. 89. Schneider v. Hosier, 21 Ohio St. 98. 685 ACTIONS. § 659 such compensation.'" In general damages recovered in a wife's action are her separate property/' but in the District of Columbia her separate release will not discharge the cause of action, the cause of action not being her separate property.** § 657. Trespass. A wife may sue in trespass." Where land is conveyed to spouses jointly, the wife alone cannot maintain trespass." The wife has such an interest in the homestead, though in her husband's name, as to make a trespass thereon a wrong to her." By statute in California they may sue jointly for trespass to land held in com- § 658. Professional Negligence. The wife, as sole or substantial party, has been allowed to sue for direct injury to herself from another's malpractice,** also for the malpractice of a physician.^ Under the Maryland statute a husband must join in such an action.* § 659. Assault and Battery. At common law the spouses must sue jointly for battery of the wife.* Under the Oklahoma and South Carolina statutes she may 92. Stoneman v. Erie E. Co., 52 94. Howard v. Cbesapeake & O. By. N. T. 429 ; Berger v. Jacobs, 21 Mich. Co., 11 App. D. C. 300 215; Ball V. Bullard, 52 Barb. (N. Y.) 95. Strasburger v. Barber, 38 Mo. 141; Chicago, etc., E. E. Co. v. Dunn, 103. See Bradford v. Hanseom, 68 52 111. 260. But the husband is some- Me. 103 ; Spencer v. St. Paul E., 22 times a necessary party still. Shad- Minn. 29. dock V. Clifton, 22 Wis. 114; Pan- 96. Powles v. Hayden, 130 Mich. eoast V. Burnell, 32 Iowa, 394 ; Church 47, 89 N. W. 571, 8 Det. Leg. N. 1159. V. Westminster, 45 Vt. 380 ; Farmer 97. Lesch v. Great Northern Ey. Co., V. Iianman, 73 Ind. 568; Packet Co. v. 97 Minn. 503, 106 N. W. 955, 7 L. E. Clough, 20 Wall. (U.S.) 28; Anderson A. (N. S.), 93. V. Anderson, 11 Bush (Ky.),327. Where 98. Wagoner v. Silva, 139 Cal. 559, the husband must join, the wife should 73 P. 433; Harlow v. Standard Imp. not sue in his name without his assent. Co., 145 Cal. 477, 78 P. 1045. Clark V. Koch, 9 Phila. (Pa.) 109; 99. Mewhirter v. Hatten, 42 Iowa, Sims V. Sims, 79 N. J. Law, 577, 76 288. A. 1063; Dodge v. Eush, 28 App. D. 1. Even though it afterwards cause C. 149. her death. Cross v. Guthery, 2 Eoot 93. P. B. Arnold Co. v. Buchanan (Conn.), 90; Hyatt t. Adams, 16 (Ind.), Ill N. E. 204; Engle v. Sim- Mich. 180. mons, 148 Ala. 92, 41 So. 1033, 7 L. 2. Dashiell v. Griffith, 84 Md. 363, E. A. (N. S.) 96; Taxarkana Tele- 35 A. 109'4. phone Co. v. Burge (Tex.), 192 8. W. 8. Pillow t. Bushnell, 5 Barb. (N. 807. Y.) 156. § 662 HtrSBAlTD AND WIFE. 686 recover in her own name for an assault and battery committed on her by a third person, though she lives with her husband/ § 660. Ejectment and Forcible Detainer. In States tending to the feme sole doctrine in legislation, the wife may accordingly, without joining her husband, not only sue in actions of contract, but bring ejectment,' and may, as against all persons except her hudband sue alone for the possession of their estate by the entirety.' In Minnesota she may maintain forcible entry and detainer without joining her husband.^ § 661. Replevin. She may maintain replevin without joining her husband." In the same State a joint action of replevin to recover property all of which is owned severally, in part by each spouse, cannot be main- tained.* § 662. Personal Injuries to Wife. So far as the husband is injured, his right of action is sole; but where the wife is the meritorious cause of action, the spouses join as plaintiffs. For injuries to the person or character of the wife, therefore, the husband and wife at the common law should sue together.^" Also for injuries sustained by her through the negligence of a com- mon carrier,^^ and, indeed, not only with reference to separate estate or business, but as to injuries to her person or character generally.^'' A married woman has, also, been permitted to sue a railroad company for personal injuries caused by the carrier's negligence.^' Under some Married Women's Acts a wife may 4. Casteel v. Broois (Okla.), 148 10. Donoghue v. ConsoKdated Trac- P. 158. Long V. McWilliams, 11 Okla. tion Co., 201 Pa. 181, 50 A. 952 ; 562, 69 P. 882; Coulter v. Hermitage Moody v. Southern Pae. Co., 167 Cal. Cotton Mills (S. C), 98 S. E. 846. 786, 141 P. 388 ; Bing. Inf. & Gov. 247, 6. "Wood V. Wood, 18 Hun (N. Y.), Am. ed., and cases cited; Lindsay v. 350; Betz v. MulUn, 62 Ala. 365. But Oregon Short Line E. Co., 13 Idaho, cf., as to action by husband and wife, 477, 90 P. 984 ; Easier v. Sacramento Westcott V. Miller, 42 Wis. 454. Gas & Electric Co., 158 Cal. 514, 111 6. Holmes v. Kansas City 209 Me. P. 530. 513, 108 S. W. 9 (reh. den., 108 S. W. 11. Heim v. McCaughan, 32 Miss. 3134). 17. 7. Twitchell v. Cummings, 123 12. Townsdin v. Nutt, 19 Kan. 28S ; Minn. 270, 143 N. W. 785. Omaha Horse E. v. Doolittle, 7 Neb. 8. Montgomery y. Hickman, 62 Ind. 481. 598; Dickson v. Eandal, 19 Kan. 218. 13. Tuttle y. Chicago E., 42 Iowa, 9. Gowan y. Stevens, 83 Vt. 358, 518; Chicago E. y. Dickson, 67 IDL 76 A. 147. 122. 687 ACTIONS. § 662 maintain an action for personal injuries without joining her hu^and," even when living with him," whether the injury be the result of force or negligence.^" Where injury to her unborn child is deemed an injury to her person, both spouses have a cause of action, and both must join in a release." In Massachu- setts the wife of a tenant, as such and as a member of the tenant's family, may maintain an action against the landlord for injuries sustained by reason of the unsafe condition of the common prem- ises of the tenement building.^* Under the Washington statute providing that both spouses may join in actions for personal in- juries to either, a wife is a proper party in an action for per- sonal injuries sustained by the husband.** In Louisiana, where the husband sues to recover damages for the personal injury to his wife, without objection seasonably made, a judgment for him is proper, but the damages will be the property of the wife,'" A married woman who is in a buggy when it is hit by an automo- bile and sujffers a miscarriage as a consequence although she is not thrown out can recover as her injuries are not caused by fright alone.^* In Louisiana the wife may bring action for her personal injuries without the authorization of the husband as damages for such injuries do not form part of the community but always remain the separate property of the wife, recoverable by herself alone. Bills for doctors and nurses and hospital attend- ance cannot be recovered in such suit as they are expenses of the 14. Hains v. Parkersburg, M. & I. 15. City of Athens v. Smith, 111 Ga. Ey. Co. (W. Va.), 84 S. E. 923 ; Knox- 870, 36 S. E. 955. ville Ey. & Light Co. v. Vangilder IS. Hey v. Prime 197 Mass. 474, 84 (Tenn.), 178 S. W. 1117; Michigan N. E. 141. Cent. E. Co. v. Coleman, 28 Mich. 440 ; 17. Kirk v. Middlebrook, 201 Mo. Capital Traction Co. v. Eockwell, 17 245, 100 S. W. 450. App. D. C. 369; Hatton v. Wilming- 18. Crudo v. Milton (Mass.), 124 ton City Ey. Co., 3 Pennewill (Del.), N. E. 30. 15?, 50 A. 633; Texas & P. Ey. Co. 19. Apker v. City of Hoquiam, 51 V. Humble, 97 F. 837, 38 C. C. A. ^02 "Wash. 567, 99 P. 746. (affd., 181 IT. 8. 57, 21 8. Ct. 526, 45 20. Harkness v. Louisiana & N. W. L. Ed. 747) ; Chicago & M. Electric E. Co., 110 La. 822, 34 8o. 791; Cart- Ey. Co. V. Krempel, 116 HI. App. 253 ; wright v. Puissignr, 125 La. 700, 51 Mageau v. Great Northern Ey. Co., So. 692. 103 Mimn. 290, 115 N. W. 651, 15 L. 21. Easton v. United Trade School E. A. (N. 8.) 511 (reh. den., 103 Contracting Co. (Cal.), 159 Pac. 59T, ITmn. 290, 115 N. W. 946, 15 L. E. L. E. A. 1917A, 394. A. [N. 8.] 511) ; Elliott v. Kansas City, 210 Me. 576, 109 S. W. 627. § 664 HUSBAND AND WIFE. 688 community for which the husband alone is responsible and he alone can recover therefor.^* § 663. Fraud and Deceit. The spouses must sue jointly for frauds upon the wife, as in case of an action qui tarn to recover penalties for a fraudulent con- veyance.^^ In Kentucky a wife may maintain an action of deceit without joining her husband.^* In Michigan a wife may sue for fraud in a conveyance to her though the consideration of the con- veyance did not pertain to her separate estate."' Under the Okla- homa statute, a wife may sue alone for fraud in oibtaining title to land owned by her.*' § 664. Libel or Slander. On these principles it is held that husband and wife must sue together for libel or slanderous words spoken against the latter.*' It should be observed that, wherever husband and wife are both injured, they have two distinct and separate causes of action, which must not be confounded. Thus, for libel against husband and wife, the husband must sue alone for libel against him, and hus- band and wife jointly for the libel against her; they cannot sue together for the libel against both.** But actions are sometimes consolidated in practice.*® She may now sue alone for slander.'* Under the District of Columbia statute enabling a wife to trade and providing that her earnings shall be her separate estate, she has been held enabled to maintain an action for libel concerning 22. Shield v. F. Johnson & Co., 132 Eanney, 2 Hill (N. T.) 309 ; Saville La. 773, 61 So. 787, 47 L. K. A. (N. v. Sweeney, 4 B. & Ad. 514 ; Eyan t. S.) 1080. Madden, 13 Vt. 51. As to slander of 23. Fowler v. Frisbie, 3 Conn. 320. wife charging her with "adultery," But see Crump v. McKay, 8 Jones see Shafer v. Ahalt, 48 Md. 171. Spe- (N. C.) 32, as to negligence " sound- cial damage should be shown in order ing in contract," not admitted to bo to sustain the action. lb.; Allsop v. cause of action. Allsop, 2 L. T. (N. S.) 290. Words 24. Kiee v. Porter, 22 Ky. Law, charging her, while unmarried, with 1704 ; Work v. Campbell, 164 Cal. 343, fornication, are actionable. Gibson v. 128 P. 943. Gibson, 43 Wis. 23. 25. Bissell v. Taylor, 41 Mich. 702, 28. Gazynski v. Colburn, 11 Cush. 3 N. W. 194. (Mass.) 10; EbersoU v. King, 3 Binn. 26. Wesley v. Diamond, 26 Okla. (Pa.) 555; Newton v. Hatter, 2 Ld. 170, lOgr P. 524. Eaym. 1208. 27. Smalley v. Anderson, 2 Mon. 29. Hemstead v. Gas Light Co., 3 (Ky.) 56; Davies v. Solomon, L. B. Hurl. & C. 745. 7 Q. B. 112; Throgmorton v. Davis, 3 30. Martin v. Bobson, 65 111. 129; Blackf. (Ind.) 383. These words must Kovacs v. Mayoras, 175 Mich. 582, be actionable per se. See Beach v. 141 N. W. 662. 689 ACTIONS. § 666 her with reference to her business without joining her husband.'^ In Kentucky spouses may sue separately for a slander spoken of both, but a verdict and judgment in favor of one are not compe- tent evidence in the action by the other.*'' The Lousisiana statute providing that damages from the " personal injuries " of the wife shall be her separate property has been held to enable her to main- tain an action for a libel affecting herself," as well as for abuse and slander.** In Missouri the husband must be joined in the wife's action for slander.*" In Texas such an action by the wife without joining her husband may be maintained without evi- dence from which the jury may infer that if she had not brought it alone it would not have been brought.'* § 665. Malicious Prosecution. The spouses must sue jointly for malicious prosecution of the wife." Since under the Oalifomia statute a husband must be joined in the wife's action, with certain exceptions not including an action of malicious prosecution, the complaint in such an action is not demurrable because it both seeks to recover for her loss of time and for the arrest of both spouses, which is a joint action.** § 666. Injury to Wife's Personal Property. Where the right of action for damages is founded on the prior possession of personal property, the husband must sue alone, since his possession is the possession of both.*' And the joinder of the wife in actions relating to personal property, where the injury was committed after marriage, is good ground of demurrer, or motion to arrest, or even of error after judgment.*" Whether the same principle applies to property of the wife parted with before mar- riage is not so clear. This is the rule, however, when the action is for a wrong, which before the marriage was committed in respect to such property.*^ Where household goods belonging in part to SI. Wills V. Jones, 13 App. D. C. Magnuson v. O'Dea (Wash.), 135 482. Pac. 640, 48 L. R. A. (N. S.) 327; 32. Alcorn v. Powell, 22 Ky. Law, Magnuson v O'Dea, 75 Wash. 574, 1353, 60 8. W. 520. 135 P. 640. 83. Times-Democrat Pub. Co. v. 38. Williams v. Casebeer, 126 Cal. Mozee, 136 F. 761, 69 C. C. A. 418. 77, 58 P. 380. 34. Martin v. Derenbecker, 116 La. 39. Heyman v. Heyman, 19 6a. App. 495, 40 So. 849. 634, 92 S. E. 25; Bing. Inf. & Gov. 35. Adams v. Hannon, 3 Mo. 222. 253, and cases cited; Cro. Eliz. 133; 3S. DaTis V. Davis (Tei.), 186 8. W. 1 Chit. PI. 93 ; 1 Salk. 114. 775. 40. Bawlins v. Bounds, 27 Vt. 17. *7. Langhlin v. Eaton, 54 Me. 156; 41. 3 Rob. Pract. 188; Milner v. 44 § 667 HUSBAUD AND WIFE. 690 each spouse is consigned to the husband, he may sue alone for in- jury to the shipment.*^ Where spouses bring a joint action for personal property levied on as the husband's, no cognizance can be taken of the wife's secret trusts or equities.** In Arizona where a husband sold hay cut from his wife's land under an agreement that the buyer should pay part of the proceeds to creditors of the spouses jointly, it was held that an action to compel the buyer to account was maintainable only in the joint names of the spouses.** In Florida a husband may ordinarily recover his wife's personalty which has been detained unlawfully.*' In Michigan it is held that a passenger traveling with his wife is entitled to recover from the railroad in an action of contract for the loss of his wife's jewelry.** In New York and Washington an action for the recovery of damages to the wife's personal property should be brought in her name,*' and she may now sue for her baggage, lost through like negligence.*' § 667. Trover. Where the trover is laid before the marriage and the conversion afterwards, there has been some controversy, the result of which seems to be that the action is well brought, either with or with- out joining the wife, though the better course doubtless is to join the wife.*' The principle sought is whether such a suit amounts to a disaffirmance of the husband's constructive title to the goods on the marriage."" The spouses may maintain a joint action for Milnea, 3 T. R. 627 ; Fewell v. Collins, 48. Pierson v. Smith, 9 Ohio St 98. 1 Const. 207. 49. Powes v. Marshal, 1 Sid. 172; 42. Walter v. Alabama Great South- Ayling v. Whieher, 6 Ad. & El. 259; em K. Co., 142 Ala. 474, 39 So. 87. Blackborne v. Haigh, 2 Lev. 107; 3 43. Pawley v. Vogel, 42 Mo. 291. Bob. Pract., supra. There ig some un- 44. Ives V. Sanguinetti (Ariz.), 85 certainty on this point, however. See P. 480. Bac. Abr. Baron & Feme (K.); 45. McNeil v. Williams, 64 Pla. 97, contra, Brown v. Fifield, 4 Mich. 322; 59 So. 562. Wellborn v. Weaver, 17 Ga. 267. Vim- 46. Withey v. Pere Marquette R. band and vrife cannot sue for ma- Co., 141 Mich. 412, 104 N. W. 773, lidous replevin of his household fumi- 12 Det. Leg. N. 511, 113 Am. St. R. ture with intent to injure her, and 533, 1 L. R. A. (N. S.) 352. resulting in the actual injury of her 47. Sherlock v. Denny, 28 Wash. by the officer, if they begin it pending; 170, 68 P. 452; Gilligan v. Consoli- the action in replevin. O'Brien ▼. dated Gas Co. of New Tork, 47 Misc. Barry, 100 Mass. 300. 658, 94 N. T. S. 273; Schoenfeld T. 60. As to injuries to the wife's real Globe Storage & Carpet Cleaning Co., estate, see supra, ? 191. 121 N. Y. S. 332 ; Holtzclaw v. Gassa- way, 52 8. C. 551, 30 S. E. 399. 89f ACTIONS. § 668 oonveraion of cottown grown on land owned by them jointly.'* Under the New York Married Women's Act a wife may maintain an action of tort for conversion without showing that she has a sepa- rate estate."*' The Georgia statute providing that her possession of property shall give a right of action for interference therewith does not enable a husband who has possession of his wife's per- sonalty as agent to maintain an action for its conversion, as the statute contemplates a possession accompanied by either general or special property."' In the same State he is not a necessary party to her action for conversion." § 668. For Loss of Husband's Consortium and Services. The wife was never permitted to sue for the loss of her hus- band's society and services."" A statute providing that the wife shall retain after marriage all the civil and property rights of a single woman and may sue in her own name without joining her husband for any injury to her ireputation, person or property, gives the wife the right to sue for loss of consortium caused by sales of drugs to the husband by the defendant contrary to law."* It is generally held that the wife cannot maintain an action for consequential damages resulting from her husband's injury, if it is the result of negligence,"' or 81. Cedartown Supply Co. v. St. 101; Patelski v. Snyder, 179 HI. Hooper, 13 Ga. App. 29, 78 S. E. 686. App. 24 ; Stout v. Kansas City Ter- SS. Lumley t. Torsielle, 69 App. minal Ey. Co., 172 Mo. App. 113; Div. 76, 74 N. T. S. 567. Feneff v. N. Y. C. & H. E. E., 203 53. Mitchell v. Georgia & A. Ey. Mass. 278; Goldman v. Cohen, 30 Co., Ill Ga. 760, 36 S. E. 971, 51 Misc. 366, 63 N. Y. S. 459; Feneff v. L. E. A. 622. New York C. & H. E. E., 203 Mass. 64. Bendy v. American Transfer 278, 89 N. E. 436, 24 L. E. A. (N. S.) Co., 15 Cal. App. 746, 115 P. 965. 1024 Brown v. Kistleman, 177 Ind. 65. 2 Kent, Com. 182; Tuttle v. Chi- 692, 98 N. E. 631, 40 L. E. A. (N.8.) cage E., 42 Iowa, 518; Carey v. Berk- 236; Stout v. Kansas City Terminal shire E., 1 Cush. (Mass.) 475. An E. Co., 172 Mo. App. 113, 157 S. W. action cannot in general be main- 1019; Patelski v. Snyder, 179 EL tained by the wife, there being no App. 24; Smith v. Nicholas Building misfeasance towards her independently Co. (Ohio), 112 N. E. 204, L. E. A. of a contract with the husband alone. 1916E 700. Longmeid v. Holliday, 6 Exeh. 761; 56. Moberg v. Scott (S. D.), 161 Bernhardt t. Perry (Mo.), 208 8. W. N. W. 998, L. E. A. 1917D 732. 462 ; Goldman v. Cohen, 30 Misc. (N. 67. Patelski v. Snyder, 179 El. App. T.) 336; Brown v. Kistleman, 177 24; Emerson v. Taylor (Md.), 104 Ind. 692 ; Emerson v. Taylor, 104 Atl. A. 538 ; Kosciolek v. Portland Ey., (Md.) 538; Kosciolek v. Portland Light & Power Co., 81 Ore. 517, 160 Ey., Light & Power Co., 81 Ore. 517 : P. 132 ; Smith v. Nicholas Bldg. Co., Smith ▼. Nicholas Bldg. Co., 93 Ohio 93 Ohio St. 101, 112 N. E. 204; Gold- § 6Y1 HUSBAHD AND WIFE. 692 for the salary he might have earned but for his injury,"' even though it entails sufiering and anxiety, and imposes on her heavy and arduous duties which she did not have before the injury,"* or where it results in diminished power to support her.'" Such damages can be recovered by the wife only for wrongs which di- rectly tend to deprive her of consortium.'^ In such case the tort must be intentional.'^ In Ohio it is held that she may maintain an action for loss of the society and companionship of her hus- band against a druggist who sells morphine to her husband, a drug addict, in such quantities as to incapacitate him." § 669. For Death of Husband. A wife, of course, could not sue for the death of her husband.** § 670. Pleading, In a joint action for personal wrong to the wife, the declaration should conclude " to their damage."" And it is a well recognized principle, both in England and America, that whenever the wife is the meritorious cause of action, her interest must appear on the face of the pleadings, or the omission will be considered fatal." Under the California statute the spouses may incorporate in one cause of action a statement of the injuries suffered by the wife, and of the consequential damages sustained by the husband." A much similar statute exists in New Jersey." § 671. Defences to Action by Wife. Neither fraud nor negligence on the husband's part can bar the wife's right of action, she being the injured party.°° He cannot interfere with her right to claim damages, nor extinguish or release man v. Cohen, 30 Misc. 336, 63 N. T. 63. Flandermeyer v. Cooper, 85 Ohio S. 459; Bernhardt v. Perry (Mo.), St. 327, 98 N. E. 102. 208 S. W. 462. 64. 2 Kent, Com. 182; Carey y. 58. Glenn v. Western Union Tele- Berkshire E., 1 Cush. (Mass.) 475. graph Co., 1 Ga. App. 821, 58 S. E. 83. 65. Horton v. Byles, 1 Sid. 387 ; 59. Feneff v. New York Cent. & Smalley v. Anderson, 2 Mon. (Ky.) H. E. E. Co., 203 Mass. 278, 89 N. E. 56. 436. 66. Staley v. Barhite, 2 Caines (N. 60. Brown v. Kistleman, 177 Ind. T.) 221; Serres T. Dodd, 5 B. & P. 692, 98 N. B. 631. 405; Thome v. Dillingham, 1 Denio, 61. Stout V. Kansas City Terminal (N. T.), 254; Pickering v. De Eoeho- Ey. Co., 172 Mo. App. 113, 157 S. W. mont, 45 N. H. 67. 1019. See Clark v. Hill, 69 Mo. App. 67. Meek v. Pacific Electric By. Co. 541. (Cal.), 164 P. 1117. 62. Gamhino v. Manufacturers ' Coal 68. Davis v. Public Service Corp., & Coke Co., 175 Mo. App. 653, 158 77 N. J. Law, 275, 72 A. 82, 83. S. W. 77. 69. Moore v. Foote, 34 Iblich. 443 ; €93: ACTIONS. § 672 It, nor lessen the amount by his sole compromise.'"' In the hus- band's separate suit for consequential injuries,'^ as to loss of his "wife's services, there is some uncertainty ; " but as he is usually bound still to afford medical attendance, his claim is favorably regarded in that respect at least.''* An action by the wife for her sole damages, even though the husband be made a nominal co- plaintiff under the statute, will not, if withdrawn in her behalf, bar his separate action for his own expenses and damages from the same injury, but this he may bring and conduct at his own discretion.'* § 672. Damages. Impairment of a wife's capacity to earn may be an element of her damages in a personal injury action,'^ where the statute gives her the right to her earnings,'" or where it appears that she has an employment apart from her husband," or that her earnings are riori V. St. Louis, 3 Mo. App. 231; Knoiville E. & L. Co. v. Vangilder (Tenn.), 178 S. W. 1117, L. E. A. 1916A 1111. 70. Martin t. Bobson, 65 HI. 139; Chicago E. v. Dickson, 67 111. 122. 71.1 See supra, § 668. 72. The husband cannot here recover for money expended that belonged to his wife. Walden v. Calrk, 50 Vt. 383. The test seems to be, as to services and earnings, whether the husband is still entitled to his wife 's services, and not she to her separate earnings. Klein v. Jewett, 26 N. J. Eq. 474; Brooks V. Sehwerin, 54 N. T. 343. 73. Tuttle V. Chicago E., 42 Iowa, 518. Unless estopped by allowing his wife to recover such expenses. Neu- meister v. Dubuque, 47 Iowa, 465. 74. Stepanck v. Kula, 36 Iowa, 563 ; Smith V. St. Joseph, 55 Mo. 456; Me- whirter v. Hatten, 42 Iowa, 288. 75. Warth v. Jackson County Court, 71 W. Va. 184, 76 S. E. 420; Colo- rado Springs & Interurban Ey. Co. v. Nichols, 41 Colo. 272, 92 P. 691; Withey v. Eowler, 164 Iowa, 377, 145 N. W. 923; Texas & P. Ey Co. v. Humble, 181 U. S. 57, 21 S. Ct. 526, 45 L. Ed. 747 ; Libaire v. Minneapolis & St. L. K. Co., 113 Minn. 517, 130 N. W. 8 ; Kirkpatrick v. Metropolitan St. Ey. Co., 129 Mo. App. 524, 107 S. W. 1025; Hendricks v. St. Louis Transit Co., 124 Mo. App. 157, 101 S. W. 675; Wrightsville & T. E. Co. v. Vaughan, 9 Ga. App. 371, 71 S. E. 681; Schmelzer v. Chester Traction Co., 218 Pa. 29, 66 A. 1005. 76. Snickles v. City of St. Joseph, 155 Mo. App. 308, 136 8. W. 752; Price V. Charlotte Electric Ey. Co., 160 N. C. 450, 76 S. E. 502; West Chicago St. Ey. Co. v. Carr, 170 111. 478, 48 N. E. 992; South, Covington & C. St. Ey. Co. V. Bolt, 22 Ky. Law, 906, 59 8. W. 26; Enid City Ey. Co. v. Eeynolds, 34 Okla. 405, 126 P. 193. 77. Denton v. Ordway, 108 Iowa, 487, 79 N. W. 271; Elenz v. Conrad, 115 Iowa, 183, 88 N. W. 337; Perrigo V. City of St. Louis, 185 Mo. 274, 84 8. W. 30; Eiley v. Lidtke, 49 Neb. 139, 68 N. W. 356; Central City v. Engle, 65 Neb. 885, 91 N. W. 849; Worez V. Des Moines City Ey. Co., 175 Iowa, 1, 156 N. W. 867; Corbin V. City of Huntington, 74 W. Va. 479, 82 S. E. 323; Niemeyer v. Chi- cago, B. & Q. Ey. Co., 143 Iowa, 129, 121 N. W. 521. § 6Y2 HUSBAND AHD WIFE. 694 kept apart as her separate estate/* or that she was a free trader," or where the husband files a disclaimer of her services,*' or where she lives apart from him,*^ even though there is no evidence that she ever earned any money,** and even though she was married after the accident.** She may also recover for pain and. anguiah of mind,** and inability to perform her necessary affaire and business,*^ as well as medical expenses caused by the injury, whether paid or not, if charged against her,** or if she has paid them,*' if not paid with money loaned to her by him,** and unless she is equally liable with her husband for such expenses.*' She cannot recover for loss of services rendered in household duties,** 78. Brown v. Third Ave. B. Co., 19 Misc. 504, 43 N. T. S. X094. 79. Norfolk Ky. & Light Co. t. Williar, 104 Va. 679, 52 8. K 380. 80. Smith v. Borough of East Mauch Chunk, 3 Pa. Super. 495. 81. WrightsviHe & T. B. Co. v. Vaughan, 9 Ga. App. 371, 71 S. E. 691. 82. Louisville & N. E. Co. v. Dick, 25 Ky. Law, 1831, 78 S. W. 914. But sea, contra, Becker v. Lincoln Eeal Es- tate & Building Co., 118 Mo. App. 74, 93 S. W. 291; Kroner v. St. Louis Transit Co., 107 Mo. App. 41, 80 S. W. 915. 83. Greorgia Northern By. Co. v. Sharp, 19 Ga. App. 503, 91 S. E. 1045; Booth V. Baltimore & O. E. Co. (Ind.), 87 S. E. 84; Wrightsville & T. E. Co. v. Vaughan, 9 Ga. App. 371, 71 S. E. 691. 84. McGovem v. Intemrban By. Co., 136 Iowa, 13, 111 N. W. 412; Ohio 6 M. Ey. Co. V. Cosby, 107 Ind. 32, 7 N. E. 373; Kimmel v. Interurban St. Ey. Co., 87 N. T. S. 466; Cincin- nati, L. & A. St. E. Co. V. Cook, 45 Ind. App. 401, 90 N. E. 1052. 85. Normile v. Wheeling Traction Co., 57 W. Va. 132, 49 S. E. 1030, 68 L. E. A. 901. 86. Adams Exp. Co. v. Aldridge, 20 Colo. App. 74, 77 P. 6; Allen v. Lizer, 9 Kan. App. 548, 58 P. 238; Hiekey T. Welch, 91 Mo. App. 4; Ashby v. Elsberry & N. H, Gravel Boad Co., Ill Mo. App. 79, 85 S. W. 957; Pomerine Co. v. White, 70 Neb. 177, 98 N. W. 1040; City of Toledo v. Duffy, 13 Ohio Cir. Ct. 482, 7 O. 0. D. 113; Town of Elba v. Bullard, 152 Ala. 237, 44 So. 412 Indianapolis Traction &• Terminal Co. v. Kidd, 167 Ind. 402, 79 N. E. 347, 7 L. E. A. (N. S.) 143. 87. McLean v. City of Kansas City, 81 Mo. App. 72 ; Atlantic & D. B. Co. V. Ironmonger, 95 Va. 625, 29 8. E. 319 ; Krisinger v. City of Creston, 141 Iowa, 154, 119 N. W. 526; Winnett v. Detroit United Ey., 171 Mich. 629, 137 N. W. 539 ; Tinkle v. St. Louis & S. F. B. Co., 212 Mo. 445, 110 8. W. 1086. 88. Barker v. Ehode Island Co., 35 E. I. 406, 87 A. 174. 89. Kellar v. Lewis, 116 Iowa, 389, 89 N. W. 1102. 90. Norfolk Ey. & Light Co. v. Wil- liar, 104 Va. 679, 52 S. E. 380; Den- ver & E. G. Co. V. Young, 30 Colo. 349, 70 P. 688; City of Holton ▼. Hicks, 9 Kan. App. 179, 58 P. 998; Plummer v. City of Milan, 70 Mo. App. 598 ; Wallis v. City of Westport, 82 Mo. App. 522; Green v. Town of Nebagamain, 113 Wis. 508, 89 N. W. 520; Flint jer v. Kansas City (Mo.), 204 S. W. 951 ; Pelker v. Bangor Ey. & Electric Co., 112 Me. 255, 91 A. 980 ; Earl v. Tupper, 45 Vt. 275. 096 ACTIONS. § 673 or for the amount paid by her for the services of a domestic during her disability."^ A wife whose husband is not a resident of Michigan, and who has not lived with her for six or seven years, during which she has supported herself, may, in an action for personal injuries, recover for a doctor's bill, though she has not paid it.'^ Damages for separation from her husband and from her home cannot be recov- ered by the wife in an action against her husband for assaTilt and battery." § 673. Abatement and Survival of ActioiL The damages allowed as compensation for the frauds and inju- ries sustained by the wife go to the husband, as well as the rest of ber personal property, if recovered during his lifetime. But such suite survive to her where she is the meritorious cause of action; and on the death of the husband, pending legal proceedings, the wife may accordingly proceed to judgment and collect the damages for herself; or if her husband had never brought an action, she may then do so in her own right.'* The husband, on the other hand, has no such interest in the suit at common law that he may prosecute it in his own name after his wife's death. His joinder in the first place was only because of the marriage relation. He may, however, under some statutes, be let in as her administrator, and in such capacity prosecute the suit to its conclusion."* If the wife dies after judgment, the hus'band surviving may take the benefits of the suit; for a judgment debt takes the place of the original cause of action. The death of the wife, pending suit for her personal tort, put an end to the action altogether by the old law.*® But where the so-called tort is referable rather to some breach of contract, it might survive."^ Under such a policy, contrary to the common law, it is held 91. TrohB V. City of Dubuqne, 109 derson v. Anderson, 11 Bush (Ky.), Iowa, 219, 80 N. W. 341. 327. 93. Lanuniman v. Detroit Citizens 95. Chitty PI. 74; Norcrosa v. Stu- St. Ey. Co., 112 Mich. 602, 71 N. W. art 50 Me. 87; Pattee v. Harrington, 1S3, 4 Det. Leg. N. 134. 11 Pick. (Mass.) 221 ; Cozier v. 98. Johnson v. Johnson (Ala.), 77 Bryant, 4 Bibb (Ky.), 174; Salt- So. 335. marsh v. Candia, 51 N. H. 71. 94. Bing. Inf. & Cov. 247, 248 ; New- 96. Bae. Abr. Baron & Feme (K.) ; ton y. Hatter, 2 Ld. Kaym. 1208 ; An- Meese v. Fond du Lac, 48 Wis. 323. 97. Long V. Morrison, 14 Ind. 595. § 676 HUSBAND AND WIFE. 696 that an action in the name of husband and wife for injuries to the latter will survive to her administrator.^* § 674. Husband's Rights. It would appear that the hus-band may release the damages for his wife's injuries, and then recover for the loss arising to himself alone; he may certainly release or compromise." Where the husband is alone entitled to the damages, and in case of his death they would go to his representatives, he must sue alone ; ^ and his sole suit will not be defeated by his wife's death before action brought.^ A husband cannot recover for consequential injuries to his wife from negligence unless his wife can recover for personal injuries received.* He can recover nothing unless the wife recovers for her injuries,* nor where the tort was committed on the wife prior to marriage with him,° nor where no appreciable time elapses be- tween the wife's injury and her death." § 675. For Mental Anguish Suffered by Wife. The husband cannot recover for the wife's mental anguish or other damages incidental to the joint suit in his sole suit for damages.^ § 676. Seduction of Wife. Somewhat akin to this is his action for his wife's seduction, founded on the same general marital rights. But the common law still keeps up its legal fiction of the wife's civil incapacity, and treats the seducer as guilty of trespass by force of arms, whether 98. Earl v. Tupper, 45 Vt. 275. As Co., 217 Mass. 515, 105 N. E. 379, 51 to survivorship of husband's right of L. B. A. (N. S.) 1152. action for consequential injuries, see 4. Jackson v. Boston Elevated Ey. Cregin v. Brooklyn E., 83 N. T. SffS. Co., 217 Mass. 515, 105 N. E. 379, 99. Southworth v. Packard, 7 Mass. 51 L. E. A. (N. S.) 1152; Savage v. 95; Anderson v. Anderson, 11 Bush New York, N. & H. S. S. Co., 185 (Ky.), 327. One who knowingly as- F. 778, 107 C. C. A. 648; Gardner v. sists a wife in violating her duty, as Boston Elevated Ey. Co., 204 Mass. by selling her laudanum, may be sued 213, 90 N. E. 534. by the husband for the injury he sus- 6. Mead v. Baum, 76 N. J. Law, tains thereby. Hoard v. Peek, 56 337, 69 A. 962. Barb (N. T.), 202. 6. Eogers v. Fancy Farm Telephone 1. Wheeling v. Trowbridge, 5 W. Co., 160 Ky. 841, 170 S. W. 178. Va. 353. 7. Hooper v. Haskell, 56 Me. 251; 2. n, Adams v. Brosius (Ore.), 139 Pae. 3. Jackson v. Boston Elevated E. 729, 51 L. E. A. (N. S.) 37. ,697 ACTIONS. § 677 the wife actually consent to tlie guilt or not.* The damages which the huaband may here recover in his own right are not affected by the social rank or condition of the parties ; • nor by his own char- acter, save his character as a husband ; ^^ but they may be mate- rially influenced by the wife's previous character for chastity ; ^^ while if the husband be privy to the crime or consenting thereto, the law treats him as the seducer, and gives him no damages.^* But the earlier cases seem to have regarded this last circumstance as tending only to reduce his compensation.^* § 677. For Loss of Consortium and Medical Expenses. Since the husband is at the common law entitled to the society and services of his wife, two separate causes of action may arise from injuries inflicted upon her person. One, in the name of both for her own injuries, we have just considered ; the other is in the name of the husband alone per quod consortium amisit.^* Thus, if the wife be wantonly bruised and maltreated, her husband may bring his special action per quod for the loss of her society and his medical expenses. But there can be no special damage recovered by the husband by way of aggravation in the joint suit for his wife's injuries, which is founded in her meritorious claim. Thus, in the joint action for an assault on the wife, the surgeon's bill cannot be recovered; if for slander of the wife, the loss of wages cannot be claimed; there the sole right of the husband 8. 3 Bl. Com. 139, 140. An action 11. 3 Bl. Com. 140; Bull. N. P. on the case is allowable, though not 296. Blackstone (i&.) adds the con- nsual. Chamberlain v. Hazlewood, 5 sideration of the husband 's obligation, M. & W. 517. See Morris v. Miller, by settlement or otherwise, to provide 4 Butt. 2057; Birt v. Barlow, Doug. for those children which he cannot 171; Freelaconey v. Coleman, 1 B. & but suspect to be spurious. Aid. 90 ; Canefield v. Chamber, 6 East, 12. 1 Greenl. Evid., § 578 ; Duberly 244; Tone v. Sunmers, 2 Nott & Mc- v. Gunning, 4 T. E. 651, per Lord Ken- Cord (8. C), 267; Forney v. Hallaker, yon; Eea v. Tucker, 51 ID. 110; Reeve 8 8. & B. 159. See Tundt v. Hart- Bom. Eel. 64; Train v. Bayer, 24 punft, 41 111. 9, as to the damages Barb. (N. T.), 614, and cases cited. allowable in such cases. A broad See Lord Alvanley, in Bromley v. rule is here announced in the hus- Wallace, 4 Esp. 237. band's favor. IS. Selw. N. P., Adultery; Bull. N. 9. Norton v. Wamer, 9 Conn. 172; P. 27. per Cheves, J., in Buford v. McLung, 14. 3 Bl. Com. 140; Cro. Jac. 501; 1 Nott & McCord (8. C), 268, 277; ih., 538; Mewhirter v. Hatten, 42 otherwise, according to Blackstone. Iowa, 288; Brockbank v. Whitehaven See 3 Bl. Com. 140. Junction E. E. Co., 7 Hurl. & Nor. 10. Norton v. Wamer, 9 Conn. 172. 834; Whitcomb v. Barre, 37 Vt. 148; And see Bromley v. Wallace, 4 Esp. Kavanaugh v. Janesville, 24 Wis. 618; S37. Hooper v. Haskell, 56 Me. 251. § 67Y HUSBAND AND WIFE. 698 should be dued on in his name." A husband who lives apart irom. his wife, under articles of separation or a decree of divorce from bed and board, cannot maintain a suit for damages per quod, since he has suffered no loss of her society.^" Instantaneous death of the hus'band or wife, at the common law, gave no right of action to the survivor. Nor could the husband, whose wife was thus killed by another's carelessness, sue per quod, because he could not be said to have lost her society during any portion of her life.^^ And wherever by special statute some right of action for damages is given (as against a town for a defective highway), some of our courts seem disposed to allow the husband'a medical expenses by way of aggravation, in the joint suit of hus- band and wife, even though he may not be empowered to bring a suit in his own name to recover for them as damages per qaodJ^ In some of these statutory cases, however, the husband may bring his separate suit per quod as before, in addition to the suit for the wife's injury.^' Where the action is brought in assumpsit, as upon a carrier's contract to carry safely, the considerationa are those of contract, not tort.^" 15. Bengate v. Gardiner, 4 H. & W. 6; Kavanangh v. Janesrille, 24 Wis. 618 ; King v. Thompson, 87 Pa. 365. See Lewis v. Babcock, 18 Johns. (N. Y.) 443. 16. Eeeve Dom. Rel. 64; Fry v. Derstler, 2 Teates (Pa.), 278. The husband may discharge the cause of action, so as to bar the wife's rem- edy, even though they are living apart through his fault. Ballard v. Russell, 33 Me. 196. Concerning the efEect of a separation pending a suit brought in the joint names of husband and wife, for injuries inflicted upon the latter, see Burger v. Belsley, 45 HI. 72. 17. Telv. 89, 90 ; Baker v. Bolton, 1 Camp. 493; Green v. Hudson E. E. Co., 28 Barb. (N. T.) 9; Hallenbeck V. Berkshire R. R. Co., 9 Gush. 109. See Georgia R. R. Co. v. Wynn, 42 Ga. 331, which considers a statute pro- yiding only for a wife's suit by rea- son of her husband's death by rail- road accident, and not for a hus- band's suit by reason of hia wife's death. 18. Harwood v. Lowell, 4 Onsh. (Mass.) 310; Sanford v. Augusta, 32 Me. 536; Hunt v. Winfield, 36 Wis. 154; Puller v. Naugatuck E. E. Co., 21 Conn. 557. See Carlisle v. Town of Sheldon, 38 Vt. 440, as to right to recover for damages on a highway, defeated by husband's own careless- ness. 19. Klein v. Jewett, 26 N. J. Bq. 474 ; Kavanaugh v. Janesville, 24 Wis. 618; Whitcomb v. Barre, 37 Vt. 148, Where husband and wife were in- jured simultaneously and both died, the husband a little before the wife, it was held that the right of action vested althougE they are living apart through his fault. Ballard v. Russell, 33 Me. 196. Concerning the effect of a sepa- ration pending a suit brought in the joint names of husband and wife, for injuries inflicted on the latter, see Burger v. Belsley, 45 111. 72. 20. See Pollard v. New Jersey B., 101 IT. S. 223. «99 ACTIONS. § 677 A husband may recover for loss of the wife's services and con- sortium as a result of her injury by negligence,*^ or as the result 21. Duffee v. Boston Elevated Ey. Co., 191 Mas3. 563, 77 N. E. 1036; Cnllar v. Missouri K. & T. By. Co., 84 Mo. App. 340; Schaupp v. Turner, 177 N. Y. S. 132; Chicago & M. Elec- tric Ey. Co. V. Krempel, 116 111. App. 253; Morrison v. Clark, 196 Ala. 670, 72 So. 305; Southern By. Co. v. Crowder, 135 Ala. 417, 33 So. 335; Denver Consol. Tramway Co. v. Riley, 14 Colo. App. 59 P. 476; Chicago & M. Electric Ey. Co. v. Krempel, 116 111. App. 253; Southern Kansas Ey. Oo. V. Pavey, 57 Kan. 521, 46 P. 969; Kelley v. New York, N. H. & H. E. WIFE. 700 of an assault on her,^' or of & defect in a highway," or sidewalk," or of a nuisance,"' or of the negligent escape of gas,"' or of her illness as the result of a slander,*^ or of eating unwholesome pork,** or of sale of opium to the wife, resulting in her becoming a drug addict,''' or of a cold caught at a hospital through n^ligence, re- sulting in her death,'" especially where her injuries prevent sexual intercourse.'^ The services recovered for may include services rendered by her in his business, where she is so engaged when injured, without intent on the part of the husband to pay for them,'" and special services, other than those of a servant, which a wife can, and which the wife in question was accustomed to render to him." He may also recover for her diminished capacity to labor in the future, if her injuries are permanent,'* as well as for medical and other expenses," even v^here the statute makes family expense a charge 582; Blair v. Seitner Dry Goods Co. (Mieh.), 151 N. W. 724. 22. Baer v. Hepfinger, 152 Wis. 558, 140 N. W. 345. 23. Larisa v. Tiffany (E. I.), 105 A. 739; South v. West Windsor Tp. (N. J.), 82 A. 852; Bean v. City of Portland, 109 Me. 467, 84 A. 981. 24. Wright v. City of Omaha, 78 Neb. 124, 110 N. W. 754; MeDevitt V. City of St. Paul, 66 Minn. 14, 68 N. W. 178, 33 L. E. A. 601. 25. Adams Hotel Co. v. Cobb, 3 Ind. T. 50, 53 S. W. 478. 26. Little Eoek Gas & Fuel Co. v. Coppedge (Ark.), 172 S. W. 885. 27. Garrison v. Sun Printing & Pub- lishing Co., 207 N. T. 1, 100 N. E. 430. 28. Gearing v. Berkson, 223 Mass. 257, 111 N. E. 785. 29. Holleman v. Harvard, 119 N. C. 150, 25 S. E. 972, 56 Am. St. E. 672, 34 L. E. A. 803. 30. Bailey v. Long, 172 N. C. 661, 90 S. E. 809. 31. City of Dallas v. Jones (Tex.), 54 S. W. 606 (injury to spine). 82. Georgia E. & Banking Co. v, Tice, 134 6a. 459, 52 S. E. 916; Standen v. Pennsylvania E. Co., 214 Pa. 189, 63 A. 467 ; Missouri, K. & T. Ey. Co. V. Vance (Tex.), 41 S. W. 167. But see Kirkpatriek t. Metro- politan St. By. Co., 129 Mo. App. 524, 107 S. W. 1025. 33. Selleek t. City of Janesyille, 104 Wis. 570, 80 N. W. 944, 76 Am. St. E. 892, 47 L. E. A. 691. 34. May v. Western Union Tele- graph Co., 157 N. C. 416, 72 S. E. 1059; Kirkpatriek v. Metropolitan St. Ey. Co., 129 Mo. App. 524, lOT S. W. 1025 ; Townsend v. Wilmingtoa City Ey. Co. (Del.), 78 A. 635. 85. Indiana Union Traction Co. y. McKinney, 36 Ind. App. 86, 78 N. E. 203 ; Otto v. Milwaukee Northern By. Co., 148 Wis. 54, 134 N. W. 157; Washington & G. E. Co. v. Hickey, 12 App. D. C. 269 ; Birmingham South- em Ey. Co. V. Lintner, 141 Ala. 420, 38 So. 363, 109 Am. St. E. 40; Louth V. Thompson, 1 Pennewill (Del.), 149, 39 A. 1100; Indiana Union Traction Co. V. McKinney, 39 Ind. App. 86; State V. City of Detroit, 113 Mich. 643, 72 N. W. 8, 4 Det. Leg. N. 431; Briokson v. Buckley (Mass.), 120 N. E. 126; Lagergren v. National Coke & Coal Co., 117 N. Y. S. 92 ; Twedell V. City of St. Joseph, 167 Mo. App. 547, 152 S. W. 432. 701 ACTIONS. § 67Y on both spouses,'® and even wtere the wife paid the bills, on his promise to repay her,*' and for impairment of her ability to per- fonn wifely duties,*' and for loss of her earnings, where he is entitled to them,'* and for her funeral expenses, where she ia killed." In his action for his own personal injuries he may recover the reasonable value of extra services rendered by her in nursing him.*^ He cannot recover for the expense of a servant employed during her incapacity,*' A man cannot recover for the loss of consortium of his wife eaused by the defendant's negligence where no appreciable length of time intervened between the negligent act complained of and the death during which he might have enjoyed her society ; ** and in case of her death, he can recover for loss of services and consortium only to the time of such death.** The husband's right to recover for damages to his right to the society and services of his wife on account of the negligence of a third person seems by the great weight of authority not to be affected by recent legislation putting the husband and wife on an equality.*^ In some jurisdictions, however, it is held that this legislation has wiped out the right to sue for loss of consortium due to negli- gence, as the view is held that this right depends on the husiband's 86. West Chicago St. Ey. Co. v. 42. Hertzberg v. Pittsburgh Tazicab Carr, 170 III. 478, 48 N. E. 993 ; Co., 243 Pa. 540, 90 A. 344. liifsehitz v. City of Chicago, 194 HI. 43. Eogers v. Fancy Farm Telephone App. 488. Co., 160 Ky. 841, 170 S. W. 178, L. 37. Laskowaki v. People's lee Co. E. A. 1916D, 186. (Mich.), 168 N. W. 940. 44. Indianapolis & M. Eapid Transit 38. Gregory v. Oakland Motor Car Co. v. Eeeder, 51 Ind. App. 533, 100 Co., 181 Mich. 101, 147 N. W. 614; N. E. 101; Lane v. Steiniger (Iowa), Kimberly v. Howland, 143 N. C. 398, 156 N. W. 375. 55 S. E. 778, 7 L. E. A. (N. 8.) 545. 45. Birmingham Southern E. Co. v. 39. Eobinson v. Metropolitan St. Lintner, 141 Ala. 420, 38 So. 363; Ey. Co., 34 Misc. 795, 69 N. T. S. Blair v. Bloomington & N. E. Elec- 891; The O'Brien Brothers, 253 F. trie, etc., Co., 130 111. App. 400; 855. Mewhirter v. Hatten, 42 Iowa, 288; 40. Cincinnati, H. & D. Ey. v. Tay- Partello v. Missouri, P. E. Co., 141 lor, 27 Ohio Cir. Ct. 757. Mo. App. 162, 107 S. W. 473; Booth 41. Missouri, K. & T. Ey. Co. y. v. Manchester Street E. Co., 73 N. H. Holman, 15 Tex. Civ. 16, 39 S. W. 529, 63 Atl. 578; Baltimore & Ohio 130; Crouse v. Chicago & N. W. Ey. E. Co. v. Glenn, 66 Ohio St. 39*5, 64 Co., 102 Wis. 196, 78 N. W. 446; N. E. 438; McMeekin v. Pittsburg Chicago, D. & G. B. Transit Co. v. E. Co., 229 Pa. 572, 79 AO, 133. Moore, 259 P. 490. § 677 HUSBAND AND WIFE. 702' right to menial and domestic services round the house rather than on his right to her affection and loyalty, and as the former right has been extinguished by law no right of action for damage to such a right can remain/" An action by a husband for loss of consortium of the wife due to a marine accident is cognizable in admiralty. The relation of husband and wife and parent and child are not maritime relations ; but such relations or the implied contracts or rights growing out of suck relations do not constitute the real ground of action, wheii a husband, wife, parent or child invoke admiralty relief for injury sustained by a maritime tort. In such cases the thing in action is not the relationship but the tort. The relationship is a mere step or incident to support the action.*' It has been held in Massachusetts that where a husband, as administrator, recovered for the death and conscious suffering of his wife, he could not recover separately for loss of consortium,** nor where she has recovered full damages for all injuries sustained by her." Michigan has recently followed the Massachusetts rule that under the Married Women's Acts a man cannot recover for the loss of consortium of his wife in case of her personal injury through negligence. In this case it appeared that the wife suffered so that her com- panionship was less pleasant than before. The court held that where there is no intentional wrong the ordinary rule of damages goes no farther than to allow pecuniary compensation for the impairment or injury directly done, and the courts caimot put a pecuniary value on domestic duties and labor performed in and about the family. If the husband has in fact, on account of his wife's injury, lost a service which she habitually rendered, then as service and accord- ing to the pecuniary value of it he ought to be permitted to recover. Recovery ought to be according to the fact For loss of con- sortium of the undefined and indefinable influence of either spouse 46. Maxri v. Stamford Street E. Co. Co. v. Johnson, 195 F. 740, 115 C. (Conn.), 78 Atl. 582, 33 L. B. A. (N. C. A. 540, 42 L. E. A. (N. S.) 640. 8.) 1042; PenefE v. New YorkC.&H. 48. Bolger v. Boston Elevated By. B. B. Co, 203 Maes. 278, 89 N. E. Co., 205 Mass. 420, 91 N. E. 389. 436, 24 L. B. A. (N. S.) 1024. 49. WMtcomb v. New York, N. H. 47. New York & Long Branch S. & H. E. Co., 215 Mass. 440, 102 N. B.. 663. 703 ACTIONS. § 677 in the family relationsHp and the pleasure of the relationship neither may recover."" A husband may recover for loss of consortum due to the defend- ant's sale of laudanum to the plaintiff's wife.°^ A husband can recover for loss of services and consortium of his wife who contracted pneumonia in a hospital through the negli- gence of the attendants and died. The rule that at common law there can be no recovery for death does not apply to those who stand in the relation of master, parent or husband to the deceased, for loss of services or society."* The term " consortium," as used at the common law to describe the husband's marital rights, included three elements, — service, society, and sexual intercourse. It is conceded everywhere that any injury to or detention of the wife which interfered with the first of these rights gave the husband a cause of action, as did the infringement of the last by the debauchment of the wife. Until within recent years all American courts have assumed "* and held that injuries to the second element were also entitled to protection. The great weight of authority is still the same way, although in Massachusetts and some other States it has been held that the recent Married Women's Acts have cut off this right of action."* The better view is that the Married Women's Acts giving her a right to her own separate property and earnings, and the right to sue and be sued as if unmarried, do not mean that she has been devested of all marital duties and obligations either legally or morally, but the husband is still entitled to the whole of his wife's marital affection, and to the whole of such society and comfort as her physical state and mental attitude render her capable of afford- ing him. He who steals any substantial part of that affection, or disables her physically or mentally from rendering such aid and comfort, is guilty of an infringement of the husband's rights, and should be required to make restitution. 60. Blair v. Seitner Dry Goods Co. Co. (N. H.), 99 Atl. 29«, L. E. A. (Mich.), 151 N. W. 724, L. R. A. 1917C, 410 1915D, 524. 54. FenefE v. New York, C. & H. 61. Hoard v. Peek, 56 Barb. (N. T.) E. Co., 203 Mass. 278, 89 N. E. 436, 202; Holleman v. Harward, 119 N.C. 133 Am. St. Eep. 291, 24 L. E. A. 150, 25 S. B. 972, 34 L. E. A. 803. (N. S.) 1024; Marri v. Btamford 62. Bailey v. Long (N. C), 90 S. E. Street E. Co., 84 Conn, ff, 78 Atl. 582, 809, L. E. A. 1917B, 708. Ann Cas. 1912B, 1180, 33 L. E. A, 53. Gnevin v. Manchester Street E. (N. 8.) 1042. § 679 HUSBAND AND WIFE. 704 So where a married woman is injured through negligence her husband may maintain an action for loaa of consortium." § 678. For Loss of Services. Although a husband may not maintain an action for a personal injury to his wife, he may maintain S'uch an action for the conse- quences to himself of such an injury, such as the loss of her services. °° The husband may recover for loss of services of his wife due to the publication of a malicious libel against her which caused her illness. Although in an action for negligence injuries due to mental distress may not be recovered in all cases, still, where the natural result of the libel is mental distress, such mental disturb- ance and its consequences even in the shape of resulting sickness are fairly to be apprehended. Furthermore, where the act is wil- ful and malicious the wrongdoer will be responsible for the inju- ries which be has caused even though they may lie beyond the limits of natural and apprehended results."^ There can be but one action for one tort, so where an action is brought for personal injuries and for loss of services of the wife of the plaintiff, and the counts for personal injuries are dismissed, this is a bar to a new action for them.°* The statute creating liability for wrongful death should be dis- tinguished from the action for negligence, as the death statute makes earning capacity the test, and in that respect differs from the common law, and therefore the fact that the husband has no right of recovery for death of the wife is no reason why he should not recover for her injury."' § 679. For Death of Wife. Where the wife dies in consequence of one's carelessness, as in case of malpractice, the husband may recover damages for the injury accruing to himself before, but not for the injury in conse- quence of, the death." Modem legislation has supplied many 55. Guevin v. Machester Street B. 68. Smith v. Cincinnati, New Or- Co. (N. H.), 99 Atl. 298, L. B. A. leans, etc., B. Co., 136 Tenn. 282, 189 1917C, 410. S. W. 367, L. E. A. 1917C, 543. 58. TTnited States Smelting Co. v. 69. Guevin v. Manchester Street B. Sisam, 191 Fed. 293, 112 C. C. A. 37, Co. (N. H.), 99 Atl. 298, L. E. A. 37 L. B. A. (N. S.) 976. 1917C, 410. 57. Garrison v. Snn Printing & Pub- 80. Hyatt v. Adams, 16 Mich. 180; lishing Ass., 207 N. T. 1, 100 N. E. Long v. Morrison, 14 Ind. 595. 430, 45 L. R. A. (N. S.) 766. 705 ACTIONS. § 680 new remedies much needed in these classes of cases, particularly with reference to injuries and loss of life occasioned through the carelessness of railroad companies and other common carriers."^ § 680. Necessity of Joinder of Wife. A wife is not a necessary party to an action for foreclosure of a purchase-money mortgage in which she did not join/'' nor to a suit by her husband's vendor of land to enforce a vendor's lien,'* or to foreclose his rights under an executory contract for the sale of land,** nor in his suit for specific performance merely because she joined with him in the contract for sale of his property and in a deed tendered in performance by him,'° nor to an action against the husband for necessaries furnished to her,*' nor to any action affecting land wherein she has only an inchoate right of dower,'^ or to an action on a contract to which she is not a party,*' nor, in Texas, to an action on a joint contract of the spouses, where it does not appear that it was made for the benefit of or that the mon^ to be paid thereunder was her separate estate.*' She is a necessary party to an action wherein her hu^and's creditor seeks to subject to his delbt her hus^band's property in her possession,'" and in ejectment against her husband to try the title to a homestead conveyed to her,'^ and to a suit to remove a levy made on their estate by the entirety in an action against the husband,'^ as well as to any action affecting land of which the record title is in her.'* In California it is proper to join the wife in an action against 61. Dickens v. N. T. Central R. B. «6. Marshall v. Hill, 59 Pa. Super. Co., Z8 Barb. (N. Y.) 41; Stat. 9 & 481. 10 Viet., eh. 93 ; Mass. Gen. Stats., ch. 67. Eiddick v. Walsh, 15 Mo. 519 ; 63, § 97. Herberger v. Zion, 129 Minn. 217, 152 62. Harrow v. Grogan, 219 111. 288, N. W. 268. 76 N. E. 350. 68. Loutzenhiser v. Peck, 89 Wash. 63. Sarver v. Clarkson, 156 Ind. 316, 435, 154 P. 814. 59 N. E. 933; Brightman v. Try, 17 69. Burke v. Purifoy, 21 Tex. Civ. Tex. Civ. 531, 43 S. W. 60; Jackson 202, 50 S. W. lOSgf. V. Bradahaw, 28 Tex. Civ. 394. 70. Franek v. Franck, 107 Ky. 362, 64. Schaefer v. Purvianee, 160 Ind. 21 Ky. Law, 1093, 54 S. W. 195. 63, 66 N. E. 154 ; Fowler v. Bracy, 71. Hobson v. "Van Fossen, 26 Mich. 124 Mich. 250, 82 N. W. R92, 7 Det. 68. Leg. N. 176 (aff. reh., 124 Mich. 250, 72. Wight v. Roethlisberger, 116 83 N. W. 374, 7 Det. Leg. N. 332). Mich. 241, 74 N. W. 474. 65. Edmison v. Zborowski, 9 8. D. 78. Williamson v. Conner, 92 Tex. 40, 68 N. W. 288. 681, 50 S. W. 697. 45 § 683 HUSBAND AND WIFE. 706 the husband for necessaries where it is sought to subject her separate estate to the payment of the debt.'* § 681. Actions Against Wife in General. At common law a wife could not be sued alone.'^ In California, and Texas the common-law rule still prevails.'" Under the Maine statute a wife may sue on her contract as though sole and is per- sonally liable thereon." And where a married woman receives money on a parol contract for the sale of her lands, but fails to convey, a personal action cannot be maintained against her to recover the money so paid, nor can it be made a matter of set-off in an action on a promissory note brought by her against the party who has paid such money.'' § 682. Under Married Women's Acts. Under some Married Women's Acts he is now not a necessary party to an action against her,'^ especially where the contract con- cerns her separate estate, though both spouses join in negotiating it,*" or where she is divorced.*^ In Missouri he is not a necessary party to a partition suit against the wife.*^ He is still a proper party where the liability is joint, or joint and several.** Under the Alabama Married Women's Act coverture is no longer a defence to an action on a wife's contract.** § 683. Trover. A wife is not liable in trover for refusing to surrender a gas machine which the husiband has caused to be affixed to her land in such manner as to make it part of the land as a fixture,** nor for 74. Evans v. Noonan, 20 Cal. App. Samstag, 78 Ark. 517, 94 S. W. 699 ; 288, 128 P. 794. Jones v. Gutman, 88 Md. 355, 41 A. 75. Salisbury v. Spofford, 22 Ida. 792; Dobbins v. Thomas, 26 App. D. 393, 126 P. 400; Farmers' State Bank C. 157. of Ada. V. Keen (Okla.) 167 P. 207; 80. Miller v. Kullesowicz, 41 Pa. Stockton V. Parley, 10 W. Va. 171, Super. 39. 27 Am. E. 566; Eeyman v. Heyman, 81. Swain v. Hunt, S3 Ind. App. 13 Ga. App. 634, 92 S. B. 25. 626, 99 N. E. 529. 76. Lemons v. Biddy (Tex.), 149 82. Estes v. Nell, 140 Mo. 639, 41 S. W. 1065 ; Horsburgh v. Murasky, S. W. 940. 169 Cal. 500, 147 P. 147. 83. Stanley v. Whitlow, 181 Mo. 77. Perkins v. Blethen, 107 Me. 443, App. 461, 168 S. W. 840. 78 A. 574. 84. Moore v. Price, 116 Ala. 247, 22 78. Sanford v. Wood, 49 Ind. 165. So. 531. 79. Black v. Clements, 2 Pennewill 85. Morrison v. Berry, 42 Mich. 389', (Del.), 499: Arkansas Stables v. 4 N. W. 731, 36 Am. E. 449. 707 ACTIONS. § 684 rents of her separate property collected by him after the property has been sequestrated.*' § 684. Actions Against Wife. Under the Wisconsin Married Women's Act the only contracts which can be enforced against the wife at law are those affecting her separate estate.*' Under the Illinois statute making the spouses jointly liable for family expenses, a wife cannot be made liable for rent under a written lease to which she is not a party, though she occupied the premises with her husband as a home, since the statute is not merely remedial, but creates a liability independent of the relation of landlord and tenant.** Under the same statute a creditor may recover against the wife after the action against the husband has been dismissed, the statute creating a joint and several liability.** The Maryland statute providing that a wife may be sued jointly with her husband on notes, bills, contracts and agreements applies only to contracts wholly in writing and signed by both.°° This statute has been held applicable to a joint note, payable to his order, when indorsed by him.°^ In New Jersey it has been held that where a husband gave his wife's void notes in part payment for property, he continuing liable for that part of the debt, her mortgage to secure such notes might be enforced.®^ In IN'ebraska, in order to bind a wife on her note, it must appear that the note was given in reference to and on the credit of and with intent to charge her separate estate.'^ In the same State it is held that since the wife's note given to secure the debt of a third person is void, because in violation of statute, it could not be enforced at law, but might be enforced in equity where the wife received a consideration for her contract.'* In Greorgia, where a wife's note is in part for her own debt and Se. Grayson County Nat. Bank v. jamin, 84 Md. 333, 35 A. 930, 57 Wandelohr, 105 Tex. 226, 146 S. W. Am. St. E. 402. 1186. 91. Taylor v. Welslager, 90 Md. 87. Mueller v. Wiese, 95 Wig. 381, 409, 45 A. 476. 70 N. W. 485. 92. Colonial Building & Loan Ass'n 88. Houghteling t. Walker, 100 F. v. Griffin, 85 N. J. Eq. 455, 96 A. 253 (affd., 107 F. 619, 46 C. C. A. 901. 513). 93. Stenger Benev. Ass'n v. Stenger, 89. Eichardson v. W. L. Eobinson 54 Neb. 427, 74 N. W. 846. Coal Co., 95 111. App. 283. 94. Hollister v. BeU, 107 Wis. 198, SO. Harvard Publishing Co. v. Ben- 83 N. W. 297. § 684 HUSBAND AND WIPE. 708 in part for the debt of tlie husband, the payee may recover against her that part which the evidence shows is her own debt.*" In the same State she is not liable where her note and mortgage given to secure a loan are colorable and intended to subject her estate to her husband's debt, if the lender knows of the collusion." Under the District of Columbia Married Women's Act a wife may indorse her hus^band's note to a third person even where it is payable to her, and such third person may maintain an action against the husband thereon.*' 95. Jones v. Harrell, 110 Ga. 373, 97. Broneon v. Brady, 28 App. D. 35 S. E. 690. C. 250; Deuaenberry v. Deusenbeny 96. Summers v. Lee, 10 Ga, App. (W. Va.), 95 8. E. 665. 441, 73 8. E. 602. PART ni. PAEENT AND CHIU). CHAPTER I. THE RELATION IN GENEEAL. Section 685. Definitions. 686. Stepchildren. 687. One Standing in Loco Parentis. 688. Gifts between Parent and Child. 689. Clothing, Money, etc., giyen to the Child; Bight to Insure! 690. Contracts between Parent and Child. 691. Suits between Child and Parents. 692. Privileged Communication to Parent. 693. Constitutional Bight of Legislature to Interfere with Parent. § 685. Definitions. A parent is one who has generated a child and is a father or mother,** and a " child " means a legitimate child in law." § 686. Stepchildren. It is well settled that in the absence of statutes a person is not entitled to the custody and earnings of stepchildren, nor bound by law to maintain them.^ At common law a husband is not bound 98. Ellis V. Hewitt, 15 Ga. App. 693, fies as guardian of the stepchild, and, 84 8. E. 185; In re Tombo, 149 N. T. never having assumed the latter 's 8. 219, 86 Misc. 361 (or. rev., 14ff N. eare and support, charges for neces- T. S. 688, 164 App. Div. 392). saries in her accounts, he does not 99. Champion v. McCarthy, 228 lU. stand in loco parentis. Gerber v. 87, 81 N. E. 808, 11 L. E. A. (N. S.) Eauerline, 17 Ore. 115. So, too, 1052; Landry v. American Creosote where he contracts with the child's Works, 119 La. 231, 43 So. 1016, 11 guardian for its support upon recom- L. B. A. (N. S.) 387 ; Batehelder v. pense. Ackerman, Be, 116 N. Y. 654. Walworth, 82 A. 7; Mutual Life Ins. The child's right to the beneficial use Co. of New York v. Good, 25 Colo. of his own property, inclusive of a 204, 136 P. 821. farm on which his stepfather lives 1. Tubb V. Harrison, 4 T. E. 118 ; with his mother, is regarded on a mu- S Kent Com. 192 ; Freto v. Brown, tual accounting in such cases. Spring- 4 Mass. 675; Worcester v. Marchant, field v. Bethel, 90 Ky. 593; Capek v. 14 Pick. 510; supra, § 237; Attridge Kropik, 129 111. 509. As to an adult v. Billings, 57 111. 489; MeMahill v. stepdaughter's claim founded upon McMahUl, 113 lU. 461 ; Beaondy, Be, expres contract, see Ellis v. Carey, 74 32 Minn. 385. If a stepfather quali- Wis. 176. 709 § 686 PAEEITT AND CHILD. 710 to support the children of his "wife by a former marriage,^ and a widow is not bound legally to support her stepchildren.^ Yet if a stepfather voluntarily assumes the care and support of a stepchild, he stands in loco parentis for the time being ; and the presumption then is, that they deal with each other as parent and child, and not as master and servant; in which case the ordinary rules of parent and child will be held to apply ; and consequently neither compensation for board is presumed on the one hand, nor for services on the other,* and he cannot recover for their support,^ 2. Kempson v. Goss, 69 Ark. 451, 64 S. W. 224; Freeman v. Freeman, 11 Ky. Law, 822, 13 S. "W. 246; Living- ston V. Hammond, 162 Mass. 375, 38 N. E. 968; White v. MeDowell, 74 Wash. 44, 132 P. 734. 3. Staal V. Grand Eapids & I. E. Co., 57 Mich. 239, 23 N. W. 795; Pope- joy V. Hydraulic Press Brick Co., 193 Mo. App. 612, 186 S. W. 1133. 4. Cooper v. Martin, 4 East, 77; Williams v. Hutchinson, 3 Comst. 312; Sharp T. Cropsey, 11 Barb. 224 ; Mur- doek V. Murdock, 7 Cal. 511; Gillett V. Camp, 27 Mo. 541; Hussee v. Eoundtree, Busbee, 110; Lantz v. Frey, 14 Penn. St. 201; Davis v. Goodenow, 27 Vt. 715; Brush v. Blanchard, 18 111. 46; St. Ferdinand Academy v. Bobb, 53 Mo. 357; Smith V. Eogers, 24 Kan. 140; Mowbry v. Mowbry, 64 111. 383; Livingston v. Hammond (1894), Mass.; 149 111. 195. Homestead rights are thus acquired by a stepfather. HoUoway v. Hollo- way, 86 Ga. 576. As to a stepchild remaining after attaining majority, see Wells v. Perkins, 43 Wis. 160; Harris v. Smith, 79 Mich. 54. For claims upon the estate of a deceased stepson, see Gayle v. Hayes, 79 Va. 542 ; Chicago Manual I'raining School Ass 'n V. Scott, 159 HI. App. 350 (duty to support) ; Burba v. Eichardson, 14 Ey. Law, 233; Coakley v. Coakley, 216 Mass. 71, 102 N. E. 930; State ex rel. Deckard v. Macom, — Mo. App. — , 186 S. W. 1157. The stepdaughter may recover for necessaries furnished her imbecile stepfather who was brought to her house by those having charge of his property. Bell v. Eice, 50 Neb. 547, 70 N. W. 25. Where the stepson has reached Ms majority and lives separately from the stepfather the latter does not stand in loco parentis. Davia v. Gallagher, 55 N. Y. S. 1060, 37 App. Div. 626. 5. In re Harris, 16 Ariz. 1, 140 P. 825; Grossman v. Lauber, 29 Ind. 618; Huber v. Eoth, 91 Kan. 134,136 P. 794; Dixon v. Hosick, 101 Ky. 231, 41 S. W. 282, 19 Ky. Law, 387 Swetman v. Swetman, 8 Ky. Law, 266 Hickman v. Tudor, 8 Ky. Law, 424 Eowland v. Manons, 8 Ky. Law, 618 Dawson v. Harper, 12 Ky. Law, 142 Keubler v. Taylor, 15 Ky. Law, 334. Where the stepfather is needy and becomes the legal guardian of his step- children the court may in equity allow him for their support out of their es- tate. Hill V. Moore, 8 Ky. Law, 538 ; Livingston v. Hammond, 162 Mass. 375, 38 N. E. 968. Where the mother's chMdren are provided for by both mother and step- father there is no presumption that 319 — 5840-Bender-Domestie Eelations the stepfather's support is gratuitous. Eiken v. Eiken, 79 Minn. 360, 82 N. W. 667; Daniel v. Tolon (Okla.), 157 P. 756. See Kempson v. Goss, 69 Ark. 235, 62 S. W. 582 (where the parent had assumed to support the stepchildren only with their means on their farm, he may be allowed for support he fur- nishes them). 711 IN GENEEAL. § 687 and can recover for injury to them as if they -were his own chil- dren where there is loss of services.* The children are not liable for contracts made by the stepparent in the absence of authority/ The fact that the stepchild is taken into the family does not prevent his recovery against the step- father of money loaned by the stepchild to the stepfather.* As to third parties, the usual test is whether one has held out the child as a member of his own family.* § 687. One Standing in Loco Parentis. One who accepts the gift of a child from the parents stands in loco parentis,^" and has the same rights and duties as the regular 6. Kirchgassner v. Eodiek, 170 Mass. 543, 49 N. E. 1015; EickhofE v. Se- dalia, "W. & S. W. Ey. Co., 106 Mo. App. 541, 80 S. W. 966; Wessel v. Gerken, 73 N. T. S. 192, 36 Misc. 221. 7. Butler v. Stark, 25 Ky. Law, 1886, 79 S. W. 204; Stone v. Pulsi- pher, 16 Vt. 428. 8. Toungblood v. HoefSe, Tex. Civ. App. 201 S. W. 1057. 9. St. Ferdinand Academy v. Bobb, 52 Mo. 357; Whitaker v. Warren, 60 N H. 20. Tor an adopted child the doctrine w, loco parentis is applied as to ser- vices and wages in Brown v. Welsh, 27 N. J. Eq. 429. See supra, § 232. In the case of distant relatives and strangers, any presumption that one goes to live in the household on the footing of member of the family in- stead of servant is less strong than where one is a child; and such pre- sumption is more readily overcome by circumstantial evidence. Thornton v. Grange, 66 Barb. (N. T.) 507; Tyler V. Burrington, 39 Wis. 376; Neal v. Gilmore, 79 Pa. 421. And as to in- ferring a claim for a young child's support against the child's own par- ent, see Carroll v. McCoy, 40 la. 38; Thorp V. Bateman, 37 Mich. 68. As to strangers, indeed, when the child is old enough to perform valuable ser- vice beyond the worth of support, the presumption is rather that of a con- tract relation for compensation. In general, the estate of one who has con- tracted for services to be rendered to the family is liable for the same per- formed after his deatl. Toland v. Stevenson, 59 Ind. 485; Frost v. Tarr, 53 Ind. 390; Hauser v. Sain, 74 N. C. 552; Shakespeare v. Markham, 17 N. Y. Super. 311; Sehouler, Execu- tors, § 432. But cf. § 474. 10. City of Albany v. Lindsey, 11 Ga. App. 573, 75 S. E. 911; In re Korte, 139 N. Y. S. 444, 78 Misc. 276; Hudson V. Lutz, 5 Jones, 217; Butler V. Slam, 50 Pa. 456; Schrimpf v. Settegast, 36 Tex. 296; Hays v. Mc- Connell, 42 Ind. 285; Bixler v. Sell- man, 77 Md. 494 ; Windland v. Deeds, 44 la. 98. But the presumption, as between son-in-law and father-in-law, is that they deal on the mutual footing of debtor and creditor. Wright v. Donnell, 34 Tex. 291; Schoch v. Gar- rett, 69 Pa. 144; Rogers v. Millard, 44 la. 466. But cf. supra, Hus. & Wife, § 71. All this is matter of evi- dence upon the facts. Coe v. Wager, 42 Mich. 49; Dissenger's Case, 39 N. J. Eq. 227; Norton v. Ailor, 11 Lea, 563; Ela V. Brand, 63 N. H. 14. Where the parent by his will leaves to A a devise or legacy to support and educate his child, acceptance by A of the gift obligates him to perform ac- cordingly. Watt V. Pittman, 125 Ind. 168. § 688 PAKENT AND CHIXD. 712 parent,^^ and is bound for its maintenance and support/' and is not responsible for reasonable punishment given the diild.^' One standing in loco parentis can claim allowance for support only where there was an intention at the time to make such charge.^* § 688. Gifts Between Parent and Child. Gifts between members of the same family are not greatly to be favored; and as to the father's alleged gift to his child, the pre- sumption must be strongly in favor of the father's continued possession as head of the family. Yet where there is suflBcient proof of a gift from father to child, fully executed by delivery, it will be upheld as irrevocable.^^ Such a gift should be perfected in order to be sustained afterwards against him, and if by parol it should be direct, positive, and clear. The parent's promise to give cannot be enforced on the child's behalf, against him or his estate, on a mere consideration of love and affection. But the parent in equity may settle property on his children as well as his wife,^° and a gift by a parent to a child will be supported and there is no presumption of law against its validity,*^ and a con- 11. Kelly V. niinois Cent. E. Co., 125 Ky. 1, 100 S. W. 239, 30 Ky. Law, 1062; Saunders v. Alvido & Laserre, 52 Tex. Civ. App. 356, 113 S. W. 992. 12. Howard v. Bandolph, 134 Ga. 691, 68 S. E. 586. 13. Fortinberry v. Holmes, 89 Miss. 373, 42 So. 799 (although mother stated child not to be whipped) ; Dix V. Martin, 171 Mo. App. 266, 157 S. W. 133. 14. Smith V. Plew, 171 111. App. 222; In re Tucker, 74 Mo. App. 131; State ex rel. Deckard v. Macom, — Mo. App. — , 186 S. W. 1157. 15. Kellogg V. Adams, 51 Wis. 138. Ordinarily a beneficial deed of real estate, taken by the father in the name of his child, is presumed to be a gift to the child. Francis v. Wilkin- son, 147 lU. 370. Even though the father keeps possession of the deed. Hayes v. Boylan, 141 111. 400; Davis v. Garrett, 91 Tenn. 147. And if the deed reserves express rights to the parents, and is recorded, this presump- tion becomes the stronger. Compton T. White, 86 Mich. 33. But with no apparent intent to deliver and no record, the case may be otherwise. Cazassa v. Cazassa, 92 Tenn. 573. See also Teakel v. McAtee, 156 Pa. 600; Harrison v. Harrison, 36 W. Va. 556. A note given by the father to the child may be shown to be a gift. Eey- nolds V. Eeynolds, 92 Ky. 556. 16. Bourquin v. Bourquin, 110 Ga. 440, 35 S. E. 710; Bunnell v. Bunnell, ill Ky. 566, 64 S. W. 420, 23 Ky. Law, 800, 111 Ky. 566, 65 S. W. 607, 23 Ky. Law, 1101. Possession iy a son of his father's farm does not show a contract of sale but was entirely consistent with a license to use it merely. Hubbard v. Hubbard, 140 Mo. 300, 41 S. W. 749 ; James v. Aller, 66 N. J. Bq. 52, 57 A. 476, 68 N. J. Eq. 666, 62 A. 427, 111 Am. St. E. 654; Powers v. Powers, 46 Ore. 479, 80 P. 1058. 17. Kennedy v. McCann, 101 Md. 643, 61 A. 625 (although the gift prevents the parent from making simi- lar gifts to other children) ; Jenniug v. Eohde, 99 Minn. 335, 109 N. W. 597 ; James v. Aller, 68 N. J. Eq. 666, 713 IN GENEEAL. § 688 veyance by a parent to minor children will be presumed to be a gift/* and a deed by a parent to a child on account of love and affection m.iay be suatained in the absence of evidence of undue influence/' and acceptance of a deed recorded executed by a father to his children will be presumed/" as it is always presumed that m transactions between them the parent dominates and is free from undue influence/^ but this presumption may be rebutted, as where the parent is senile.'"' All family arrangements of the filial kind, whether child or parent be the weaker party, should, in order to stand firmly, be free from fraud or undue influence on either side, and made in good faith; or equity will readily set them aside."* And if a valuable consideration be interposed, the settlement is supported more firmly ; and specific performance of an executory promise to transfer may be in some instances decreed.^* On the other hand, while an adult child may make a binding transfer or conveyance of property to the parent, any such transfer by way of gift or improvident contract, made just after attaining majority, or while in general under undue parental control and 62 A. 427, 111 Am. St. E. 654 (re- Tersing 66 N. J. Eq. 52, 57 A. 476 [although of substantially all the par- ents property] ) ; Turner v. Turner, 31 Okla. 272, 121 P. 616; Burns & Bell V. Lowe (Tex. Civ. App.), 161 S. W. 943 ; Brewer v. liohr, 35 Pa. Super. Ct. 461 (parol gift of land). 18. Beeves v. Simpson, (Tex. Civ. App.), 144 S. W. 361. 19. Becker v. Sehwerdtle, 6 CaL App. 462, 92 P. 398 ; In re Aeken 's Estate, 144 Ala. 519, 123 N. W. 187. 20. Mullins v. MuUins, 120 Ky. 643, 87 8. W. 764, 27 Ky. Law, 1048 ; Jen- ning V. Ehode, 93 Minn. 335, 109 N. W. 597. 21. Neal v. Neal, 155 Ala. 604, 47 So. 66; Hawthorne v. Jenkins, 182 Ala. 255, 62 So. 505; Sanders v. Gur- ley, 153 Ala. 459, 44 So. 1022; Betzv. Lovell (Ala.), 72 So. 500; Dolberry v. Dolberry, 153 Ala. 434, 44 So. 1018 ; Vaughn v. Vaughn, 217 Pa. 496, 66 A. 745. 22. Dolberry v. Dolberry, 153 Ala. 434, 44 So. 1018 ; Nobles v. Hut- ton, 7 Cal. App. 14, 93 P. 289 ; In re Hoffman's Estate, 32 Pa. Super. Ct. 646. 23. Pevehouse v. Adams, 153 P. 65; Taylor v. Staples, 8 R. I. 170; Van Donge V. Van Donge, 23 Mich. 321; Eider v. Kelso, 53 la. 367; Miller v. Simonds, 72 Mo. 669; Jacox v. Jacoz, 40 Mich. 473; MackaJl v. Mackall, 133 TJ. S. 167. Cf. Francis v. Wilkin- son, 147 II. 370. See Ellis v. Hogan, 147 Gas. 609, 95 S. E. 4 (relation be- tween stepmother and stepchild is not confidential). 24. As where a writing declared a valuable consideration for the promise to convey land, and actual entry and improvement had taken place upon the faith of the contract. Hagar v. Hagar, 71 Mo. 610. And see Haitt v. Wil- liams, 72 Mo. 214; Kurtz v. Hibner, 55 111. 514. As to raising an equity by reason of a meritorious, but not valuable consideration, for enforcing an incomplete gift, see Landon v. Hutton, 50 N. J. Eq. 500. § 688 PABENT AND CHILD. 714 influence, will be jealously regarded by courts of equity.^" The principle of equity is, that if there be a pecuniary transaction between parent and child, just after the child attains the age of twenty-one years, and prior to what may be called a complete emancipation, without any benefit moving to the child, the pre- sumption is, that an undue influence has been exercised to procure that liability on the part of the child ; and that it is the business and the duty of the party who endeavors to maintain such a trans- action, to show that such presumption is adequately rebutted ; but that the presumption may always be removed/' On the other hand, in transactions between members of the same family, even though that relation subsists between them, from whence the court will infer the moral certainty of the existence of considerable influence, and the probability of its having been exer- cised, yet if the transaction be one that tends to the peace or security of the family, to the avoiding of family disputes and litigation, or to the preservation of the family property, the prin- ciples by which such transactions must be tried are not those applicable to dealings between strangers, but such as on the most comprehensive experience have been found to be most for the interest of f amilies.^^ And even a deed of land from a parent tO' a child for the consideration of love and affection is not absolutely void as against creditors. The want of a valuable consideration may be a badge of fraud; but if so, it is only presumptive, not conclusive, evidence of it, and may be met and rebutted by oppos- ing evidence.^* This is the American rule; though, as we have 25. Cooley v. Stringfellow, 164 Ala. quit served by delivery to one of them 460, 51 So. 321 (deed sustained); in such a manner as to entitle the Giers v. Hudson, 102 Ark. 332, 143 S. the landlord to maintain ejectment W. 916; Savery v. King, 35 E. L. & against the father, to whom the notice Eq. 100. And see Baker v. Bradley, had been addressed. Tanham v. i&. 449; Wright v. Vanderplank, 39 Nicholson, L. E. 5 H. L. 561. Mort- B. L. & Bq. 147 ; Turner v. Collins, L. gage by emancipated children over E. 7 Ch. 339. age, to secure a debt of their father, 2S. Archer v. Hudson, 7 Beav. 551, upheld in favor of the mortgagee, but per Lord Langdale. See Houghton v. not in favor of the father. Bain- Houghton, 11 E. L. & Eq. 134 ; s. c, 15 bridge v. Brown, 50 L. J. Ch. 523. Eeav. 278, where this subject is fully 28. Hinde's Lessee v. Longworth, 11 discussed. See also American case of Wheat. 313 ; Seward v. Jackson, 8 Bergen v. Udall, 31 Barb. (N. T.) 9. Cow. 406 ; Haines v. Haines, 6 Md. 27. Master of Eolls in Houghton v. 435; Kain v. Larkin, 131 N. Y. 300; Houghton, supra. Lord v. Locke, 62 N. H. 566. A An imbecile father living with his father may serve gratuitously as trus- grown children may have a notice to tee or guardian for his child, and his 715 IN GENEEAX. § 689 seen, the statutes of Elizabeth with reference to voluntary settle- ments do not receive a uniform interpretation in our State courts. There are doubtless circumstances under which a father's volun- tary settlement, whether upon minor or adult children, would be set aside as a fraud upon subsequent and still more upon existing creditors.^' § 689. Clothing, Money, &c., Given to the Child; Right to Insure. Where a father furnishes his minor child with clothing, such clothing isi the property of the father, and he may maintain an action for the loss and injury thereof; but where he intrusts the child with a sum of money for general purposes, without specific directions to its appropriation, and the child buys clothing with it, such clothing is not the property of the father.^" The parent may give articles by parol to his child, and after- wards resume them, there being no consideration.^"- If a young child makes foolish and unnecessary outlay, the parent may repu- diate the transaction; but he should do so at once, and make restitution, rather than benefit by the transaction.^^ creditors cannot compel him to charge the trust for their benefit. Ten Broeck V. Fidelity Trust & Safety Vault Co., 8S Ky. 243. 29. See Carter v. Grimshaw, 49 N. H. 100; "Wilson v. Kohlheim, 46 Miss. 346; Kayo v. Crawford, 23 "Wis. 320; Monell V. Scherrick, 54 111. 269; Gard- ner V. Schooley, 35 N. J. Eq. 150; Guffin V. First Nat. Bank, 74 111. 259. No express contract need be proved to enable a son to recover from his fa- ther's estate for a house built by the son on the father's land in the life- time of the latter with the latter 's knowledge and consent. Byers v. Thompson, 66 111. 421; Kortz v. Hibner, 55 111. 514; Hillebrands v. Nibbelink, 44 Mich. 413. Listing the father's personal property for taxa- tion in the son's name affords no pre- sumption of a gift which may not be disputed by evidence. Saunders and "Wife V. Greever, 85 Va. 252. 30. Dickinson v. "Winchester, 4 Cush. 114; Parmlee v. Smith, 31 111. 620; Prentice v. Decker, 49 Barb. 31. 31. Cranz v. Kroger, 33 111. 74; Sto- vall V. Johnson, 17 Ala. 14. 32. See Sequin v. Peterson, 45 "Vt. 255, and cases cited. Here the child, eleven years old, having bought cigar- holders, pipes, &c., of a shopkeeper, the father was allowed to recover the money in his own name, upon prompt- ly repudiating the contract and mak- ing his demand. Money intrusted to a minor son for a specific purpose, and applied by him without his father's assent in compounding his own crime, may be recovered by the father from the receiver upon a similar principle. Bumham v. Holt, 14 N. H. 367. Aliter, if the father assented to the payment, or if the money was paid solely as civil damages in settlement of a trespass. 26. In Condon v. Hughes, 93 Mich. 367, the father was not allowed to repudiate, even with restitution, where he used a colt for some months which the son purchased § 690 PARENT AND CHILD. Yl6 A father has a pecuniary interest in the life of a minor child, and an insurance of the life of such child is not within the rule of law by which wager policies are declared void.** On the other hand, a minor child has an interest in an insurance policy on the father's life which has been taken out for his benefit, and of this interest he cannot be deprived by arbitrary acts in favor of another,** Where a father takes out a policy of life insurance on his own life for the benefit of his children an irrevocable trust is created, and the father cannot, in the absence of some power reserved, surrender the policy. The fact that the father by statute is made the natural guardian of his minor children gives him no right to surrender such a policy, as such statute will be construed to give the father only the rights he had at common law, and by that law guardianship by nature extends only to the custody of the person. It gives the father no right or control over the infant's property, real or personal.*" § 690. Contracts Between Parent and Child. Contracts between parents and children are to be carefully scrutinized by the courts as being between fiduciaries when the child is the dominant party,** but may be binding,*^ and agree- ments for sale between them will be sustained if sufficient in law." A contract between parent and child by which the parent trans- fers property to the child in consideration of support will be upheld if fair.*' To support a general contract between a parent and his adult child, as against strangers, a slight consideration is often held out of his own earnings. See also § Baker's Adm'rs, 13 Ky. Law, 876; 241. Tucker v. Tucker, 27 Mich. 204 (par- 38. Mitchell v. TJmon, &c., Ins Co., ent must be reasonable in executing 45 Me. 104. But see Worthington v. indefinite contract). See Wamsley v. Curtis, 1 Ch. D. 419. Wamsley, 62 N. Y. S. 954, 48 App. 34. Bicker v. Charter Oak Ins. Co. Div. 330. 27 Minn. 193; Martin v. Aetna Ins. 38. Brooks v. Buie, 71 Ark. 44, 70 Co., 73 Me. 25 (an adopted child). S. W. 464 (oral agreement insuffi- 35. Ferguson v. Phoenix Mutual cient) ; Hodgson v. Maey, 8 Ind. 121. Life Ins. Co. (Vt.), 79 Atl. 9^7, 35 39. Sanders v. Gurley, 153 Ala. 459, L. E. A. (N. S.) 844. 44 So. 1022; Carter v. McNeal, 86 36. Allen v. La Vaud, 107 N. E. 570, Ark. 150, 110 S. W. 222. 213 N. T. 322 (rev. judg., 144 N. Y. Where the mother lives with the S. 1103, 159 App. Div. 914). daughter under such circumstances 37. Williams v. Canary, 161 C. C. A. that no agreement to pay for her ser- 352, 249 F. 344; Epps v. Story, 109 vices can be implied, there is no con- Ga. 302, 34 S. E. 662 ; Lee v. Page, 8 sideration for the mother 's transfer Ky. Law, 602, 2 S. W. 503 ; Means v. of property to the daughter in the 117 IN QHNEKAL. § 691 sufficient. And a deed' of personal property from parent to child, the parent not being indebted at the time, by which it is agreed that the parent shall keep possession during life, is not considered void/" So it is held that a bond executed by a son to his parent for $500, with interest semi-annually if demanded, is upon valu- able consideration, sufficient to sustain a conveyance of land as a purchase.*^ Where a son purchases and stocks a farm as a home for an indigent father, who resides and labors thereon, the products are not subject to attachment as the son's property.*^ On the other hand, where a parent permits the child to receive and invest his earnings, the benefit of the investment belongs to the child, espe- cially as against creditors of the father.^* And in some States, a minor child who improves and settles a tract of land with the father's permission may acquire a title by making valuable im- provements as effectually as if he were of age.** § 691. Suits Between Child and Parents. It is intimated in a recent case that, while one occupying the quasi parental relation towards a minor stranger by blood may claim that the child's services are offset by the maintenance, care, and education he has bestowed upon him, the failure to provide properly while the child rendered services raises a liability for those services which the child, on attaining majority, may enforce.*' The question, moreover, is sometimes raised in these days, whether a young son or daughter occupying the filial relation may not, on becoming of age, sue the parent or quasi parent for alleged mal- treatment or other injury.** A minor cannot, however, sue his absence of express contract. Fenni- 45. Sehrimpf v. Settegast, 36 Tex. more v. Wagner, N. J. Ch. 1906, 64 A. 396. And in strong eases the child '» 698. right of action lies during minority. 40. Bohn V. Headley, 7 Har. & J. Watt v. Pittman, 125 Ind. 168. 257 ; Shepherd v. Bevin, 9 Gill, 33. 46. The writer is informed of a nisi 41. Jackson v. Peek, 4 Wend. 300. prkis Maine case tried about the close 42. Brown v. Scott, 7 Vt. 57. of 1880 (French v. Allen), where a 43. Campbell v. Campbell, 3 Stockt. daughter, aged twenty-three, joined 268 ; StovaU v. Johnson, 17 Ala. 14 ; with her husband in an action for an Wilflon V. McMillan, 62 Ga. 16 ; § 268. alleged assault committed upon her 44. Galbraith v. Black, 4 S. & E. by her parent when she was elcTen. 207. See Jenison v. Graves, 2 Blaekf . years old. The trial resulted in a ver- 441. But see Bell v. Hallenback, diet for the defendant, and the plain- Wright 751; Fonda v. Van Home, 15 tiffs did not proceed farther; conse- Wend. 631 ; Brown v. McDonald, 1 quently the ease is not reported. Hill Ch. 297. § 691 PABENT AND CHILD. 718 father for a tort unless lie tas been emancipated,*' and a minor child cannot recover against his father for injuries inflicted on him by his stepmother.*' With reference to a blood parent, however, all such litigation seems abhorrent to the idea of family discipline which all nations, rude or civilized, have so steadily inculcated, and the privacy and mutual confidence which should obtain in the household. An unkind and cruel parent may and should be punished at the time of the offence, if an offender at all, by forfeiting custody and suf- fering criminal penalties, if need be ; but for the minor child who continues, it may be for long years, at home and unemancipated, to bring a suit, when arrived at majority, free from parental con- trol and under counter-influences, against his own parent, either for services accruing during infancy or to recover damages for some stale injury, real or imagined, referable to that period, ap- pears quite contrary to good policy. The courts should discourage such litigation; and so upon corresponding grounds the parent's suit as to any cause of action referable to the period and relation of tender childhood.*^ 47. Taubert v. Taubert, 103 Minn. 247, 114 N. W. 763. 48. McKelvey v. McKelvey, 111 Tenn. 388, 77 S. "W. 664, 64 L. E. A. 991, 102 Am. St. E. 787. 49. Clear precedents are wanting on these points; but the policy of the common law appears to be hostile to permitting such suits. And so is the late case of Hewlett v. Eagsdale, 68 Miss. 703; Parent and child do not stand strictly as sui juris regarding the world or one another; but infancy is usually taken to be a relation analo- gous at common law to that of cover- ture. Now, as to coverture, it is clear that from regard to the peace of so- ciety the common law forbade husband and wife to sue one another in dam- ages for breach of the marital rights ; though conceding that the breach of obligation on one side might release from obligation on the other; that there might be indirect redress, sepa- ration, &c. See Schouler, Hus. & Wife, § 72. Even after a divorce it is re- cently held that the sanctity of the marriage union shall not be disturbed by such litigation between the divorced sopuses. Il>., § 561; Abbott v. Abbott, 67 Me. 304. Of course one spouse might be held criminally responsible at the time for a personal wrong against the other. Equity with ref- erence to property and adverse inter- ests therein, regards married parties as subject, moreover, to litigation; but that is something quite different so far as public policy and the inter- ests of society are concerned. It seems to us that these analogies have a close application to the filial rela- tion. And suits on an injured in- fant's behalf ought, if allowable at all, to be allowed at or about the time of the parental breach, only to the in- fant suing by next friend. And the more essential point is to get rid of the cruel custodian; as a child, under fit circumstances, may. See, as to ac- tions by or against infants, post, Part v., eh. 6, § 10155 et seq. '^IS IN GENERAL. § 693 Equity, however, regards the rights of parent and child, as well as of husband and wife, and separates their property interests.^" lAn oppressive contract relative to property extorted by a parent from the child, or by an adult child from the parent, may doubtless be relieved against." § 692. Privileged Communication to Parent. Communications made to or in the presence of a parent of a minor touching the minor's conduct, by reason of the parent's interest are qualifiedly privileged, if made fairly and in good faith. This is especially true if the interview is sought by the parent. The same rule has been applied where the child, though an adult, is a female living with and under the care and protection of the parent. In other cases, except where the communication was invited or acquiesced in by the traduced person himself, it is no more privileged when made to parents or other kindred than if made to strangers. But where the interview in the presence of others was either invited or consented to by the person claiming to have, been de- famed, the occasion is qualifiedly privileged, whether such persons be strangers or kindred. Whether the privilege of the occasion was exceeded depends upon the good faith of the charges made. If charges of theft were then made under an honest suspicion the J)rivilege of the occasion was not exceeded ; but if they were made to coerce payment by the father or with any other sinister purpose, the privilege was exceeded.^^ § 693. Constitutional Right of Legislature to Interfere with Parent. The rights of parents in relation to the custody and services of their children may be enlarged, restrained, and limited, as wisdom or policy may dictate, unless the legislative power is limited by some constitutional prohibition."* But it is held that the State has no constitutional right to interfere with the parent and take charge of a child's education and custody, on the mere allegation that he is " destitute of proper parental care, and is growing up in mendicancy, ignorance, idleness, and vice." "* On the other hand, 50. Post, Part V., ch. 6. 53. United States v. Bainbridge, 1 51. Bowe V. Bowe, 42 Mich. IffS. Mason, 71, per Story, J.; Bennet v. 52. Ecuyer v. New York Life Ins. Bennet, 2 Beasl. 114; State v. Clottu, Co. (Wash.), 172 Pac. 359, L. B. A. 33 Ind. 409. ■1918E, 536. 54. People v. Turner, 55 111. 280. § 693 PARENT AND CHILD. 720 a statute not penal in character, by whicli the State, as parens patricB, assumes the care and custody of neglected children so as to supply to them the parental custody they have lost, is pronounced constitutional/^ Nor as to such children do American courts yield greatly to considerations of the parental religion as binding their discretion for the child's welfare.^* "Sunday laws" of Vermont do not prevent a father from journeying to see his children, who are properly ab- sent from home. MeCrary v. Lowell, 44 Vt. 116. 55. Famham v. Pierce, 141 Mass. 203; Whalen v. Olmstead, 61 Conn. 263 ; In re N. P. P. B. M. v. Ah Wan, 18 Ore. 339; Ware's Petitioner, 161 Mass. 70. 56. Whalen v. Olmstead, 61 Conn. 263 ; In re N. P. P. B. M. v. Ah Wan, 18 Ore. 339. Where a statute gives to a board of public institutions the power to control the custody and edu- cation of children committed to them, its discretion will be favored. Ware's Petitioner, 161 Mass. 70. But ia a temporary commitment the parent who can show that the object of the com- mitment has been accomplished and that the child's welfare would be pro- moted by a restoration of custody is entitled to be heard. Kelley, Peti- tioner, 152 Maaa. 438. 721 LEGITIMATE CHILDEEN. § 694 CHAPTER 11. OP LEGITIMATE CHILDEEN IN GENEEAL. SxcnoN 694. Patent and Child in General; Children Legitimate and Illegiti- mate. 695. Legitimate Children in General. 696. Presumption of Legitimacy. 697. Legitimation of Illicit Oflfapring by Subwquent Marriage. 698. Legitimation by Subsequent Marriage not Favored in England. 699. Legitimacy of Offspring Born after Divorce. 700. Legitimacy Marriages Null but Bona Fide Contracted. 701. Legitimation by the State or Sovereign. 702. Domicile of Children ; Citizenship, &c. 703. Conflict of Laws as to Domicile and Legitimacy. § 694. Parent and Child in General; Children Legitimate and Illegitimate. The second of the domestic relations is that of Parent and Child; a relation which results from marriage, and is, as Black- stone terms it, the most universal relation in nature."^ Both natural and politic law, morality, and the precepts of revealed religion alike demand the preservation of this relation in its full strength and purity. In the first period of their existence, children are a common object of affection to the parents, and draw closer the ties of their mutual affection ; then comes the education of the child, in which the parents have a common care, which further identifies their sympathies and ohjects; the brothers and sisters of the child, wben they come, bring with them new bonds of affec- tion, new sympathies, new common objects; and the habits of a family take the place of the wishes of an individual. Thus do children give rise to affections which still further tend to bind together the community by links of iron.^' Children are divided into two classes, legitimate and illegiti- matei. The law prescribes different rights and duties for these classes."* It becomes proper, then, to consider them in order. First, then, as to legitimate children, to which topic alone the relation of parent and child in strictness applies ; this will occupy several chapters.*" 67. 1 BI. Com. 447. 60. The words "child" or "chil- 58. Whewell, Elements of Morality, dren" in a statute are construed as 100; 2 Kent Com. 189. embracing only legitimate children. 59. Bl. Com. 447. Orthwein v. Thomas, 127 HL 654. 46 § 696 PARENT AND CHILD. 732 § 695. Legitimate Children in General. A legitimate child is one who is bom in lawful wedlock, or is properly brouglit within the influence of a valid marriage by reason of the time of birth. Legitimacy, as the word imports, will require that the child be born in a manner approved of by the law. If he is begotten during marriage and born afterwards, it is enough ; *^ and so, too, if he was begotten before marriage but bom in lawful wedlock. We have seen that in some States the loose " contract " or " common-law " marriage is held valid, with the same legal consequences as a ceremonial marriage.*^ Cohab- itation and common repute raise the presumption of lawful wed- lock sufficiently to dispense, ordinarily, with positive proof of a marriage.*^ § 696. Presumption of Legitimacy. The maxim of the civil law is Pater est quem nuptice demon- strant; a rule frequently cited with approval by common-law authorities, though, as we shall soon see, differently applied in some respects.^* A distinguished Scotch jurist pronounces this ■" a plain and sensible maxim, which is the comer-stone, the very foundation on which rests the whole fabric of human society." *° BouUenois, a civil-law writer, likewise commends it as " a maxim recognized by all nations, which is the peace and tranquillity of States and families." "^ This maxim implies that it is always sufficient for a child to show that he is bom during the marriage. The law draws from this circumstance the necessary presumption that he is legitimate. Every child bom in wedlock is presumed to be legitimate, and the child's paternity is provable by reputation. Hence the burden to show illegitimacy is cast on those who allege it in such cases. Strong, however, as this presumption may be, it is not conclusive at law. For there may be other circumstances: such as long- continued separation of the parents ; the impotence of the father ; also, if the offspring be posthumous, the length of period which 61. 1 Bl. Com. 447 ; Fraser, Parent & ent & Child, 1, 2, and authorities Child, 1; 1 Burge, Col. & For. Laws, cited; 1 Eurge, Col. & For. Laws, 59. 53. 65. Ld. Pres. Blair, in Eoutledge v. 62. §§ 25-29. Carruthers, 19 May, 1812, cited by- es. § 29 ; Orthwein v. Thomas, 127 Fraser, supra. m. 554. 6G. BouUenois, Traite des Status, 64. 1 Bl. Com. 447; Stair, III. 3, tome 1, p. 62, also cited by Fraser, 42; 2 Kent Com. 212, n.; Fraser, Par- supra. "723 LEGITIMATE CHILDBEN. § 696 tas elapsed since the father's death. Such circumstances might render it physically and morally impossible that the child was born and begotten in lawful wedlock. The civil law, therefore, ad- mitted four exceptions to the general maxim: first, the absolute and permanent impotence of the husband; second, his accidental impotence or bodily disability; third, his absence from his wife during that period of time in which, to have been the father of the child, he must have had sexual intercourse with her; fourth, the intervention of sickness, vel alia causa.^'' These concluding words admit the classification to be imperfect. The common-law rule, which subsisted from the time of the Year Books down to the early part of the last century, declared the issue of every married woman to be legitimate, except in the two special oases of the impotency of the husband and his absence from the realm."* But in Pendrell v. Pendrell the absurd doctrine of making legitimacy rest conclu- sively upon the fact of the husband being infra quatuor maria was exploded."' Some Scotch jurists resolve the grounds upon which the presumption of legitimacy may be overthrown into two : first, that the husband could not have had sexual intercourse with his ■wife by reason of his impotency; and second, that, having the power, he had in fact no sexual intercourse with her at the time of the conception.'"' This seems to mean, first, that the husband physically could not ; second, that he actually did not ; but does not the second exception swallow the first? Perhaps the safer course is to abandon all attempts to classify; and to hold, with ■Chancellor Kent, that the question of the legitimacy or illegitimacy of the child of a married woman is one of fact, resting on decided proof as to the non-access of the husiband, and that these facts must generally be left to a jury for determination.'^ From the peculiarities attending the case of access or non-access, legitimacy or illegitimacy, great indulgence is to be shown by the courts. Said Lord Erskine : " The law of England has been more scrupulous upon the subject of legitimacy than any other, to the extent even of disturbing the rules of reason." '^ Still later was it asserted in English chancery that the ancient policy of the law ©T. Dig. lib. 1 ; tit. 6, 1. 6 ; 1 Burge, 70. Fraser, Parent & Child, 4. Col. & For. Laws, 60. 71. 2 Kent Com. 211 ; 3 P. Wms. 68. 2 Kent Com. 210; Co. Litt. 244, 275, 276; Harg. n. 193 to Co. Litt. lib. a; 1 EoU Abr. 358, 2 ; Bex v. LufEe, 8 East, IffS. And to 69. Stra. Eep. 925; 2 Kent Com. the same effect, see Blackburn v. 211, and cases cited; Shelley v. Crawfords, 3 Wall, 175. <1806), 13 Ves. 56. 72. SheUey v. , 13 Ves. 56, § 696 PAEENT AND CHILD. 724 remained unaltered; and that a child bom of a married woman was to be presumed to be the child of the husband, unless there was evidence, beyond all doubt, that the husband could not be the father.'* And it is at this day admitted that the presumption thus established by law is not to be rebutted by circumstances which only create doubt and suspicion ; but that the evidence against it ought to be strong, distinct, satisfactory, and conclusive; " that mere rumor is insufficient to bastardize issue or to require positive proof either of legitimacy or wedlock.'"' So far, indeed, is Intimacy favored at law, that neither hus- band nor wife can be a witness to prove access or non-access, while they lived together. This is clearly established in England ; " and it is understood to be the law likewise in this country, though the decided cases seem to turn upon the admissibility of the wife's testimony, and the modem l^islation of any State may affect the question.'^ Such evidence is treated as contra bonos mores. Yet the wife is an admissible witness to prove her own adultery, and in questions of pedigree ; and husband and wife may prove facte, 73. Head v. Head, 1 Sim. & Stu. 150 (1823) ; Banbury Peerage Case, n. 153 ; Pendrell v. Pendrell, 2 Stra. 935. 74. Hargrave v. Hargrave, 9 Beav. 552; Arehley v. Sprigg, 33 L. J. Ch. 345; Plowea v. Bossey, 8 Jur. (N. S.) 352; 10 W. E. 332; Fox v. Burke, 31 Minn. 319; Watts v. Owens, 62 Wis. 512. 75. Ortwein v. Thomas, 127 111. 554. 76 Eex V. Inhabitants of Sourton, 5 Ad. & El. 188 ; Patchett v. Holgate, 3 E. L. & Eq. 100; 15 Jur. 308; In re Eideout's Trusts, L. E. 10 Eq. 41. 77. 2 Stark. Evid., § 404; 1 Greenl. Evid., § 344 ; Phillips v. Allen, 2 Allen (Mass.), 453; People v. Overseers, 15 Barb. (N. T.) 286; Parker v. Way, 15 N. H. 45; Dennison v. Paige, 29 Pa. 420. The father's declarations as to a son's illegitimacy are compe- tent. Bamum v. Bamum, 42 Md. 251. A mother may testify that she ■was always true to the reputed father, her husband, and that no other man could have been the father of the child. Warliek v. White, 76 N. C. 175. Semble, such mother's truthful- ness may be impeached, but not her general character for chastity, n. The declarations of deceased parents are admissible against third parties to prove the legitimacy of their children. Jackson v. Jackson (1894) , Md. While inadmissible witnesses as to non-ac- cess, husband and wife may testify in cases between third parties as to the time of their own marriage, thfr time of a child's birth, and any other independent facts affecting the issue of legitimacy. Janes 's Estate, 147 Pa. 527. The wife's adultery is insuflS- eient to repel the paternity presump- tion, where her husband had contem- poraneous access. Goss v. Froman, 89 Ky. 318; Scott v. Hillenberg, 85 Va. 245 ; Grant v. Mitchell, 83 Me. 23 ; Shuman v. Shuman, 83 Wis. 250. And so is the adulterer's own admission. Grant v. Mitchell, 83 Me. 23. The husband cannot on this issue testify as to his own non-access while living with his wife, though he had done so in his divorce suit and gained it. Shu- man V. Shuman, 83 Wis. 250. 725 LEGITIMATE CHILDEEN. § 696 such as marriage and date of the child's birth ; these may be con- clusive as to illegitimacy.''* Much testimony, extremely delicate, is also taken in bastardy and divorce proceedings. When, there- fore, the courts shut their eyes so tightly against this proof of access or non-access, perhaps it is not because they are shocked, but lest they should see illegitimacy established. To carry the presumption of legitimacy so far as to disturb the rules of reason is unjust; for no man should be saddled with the obligations of children which clearly do not belong to him. And the rule of evidence in the English courts which required extrane- ous proof of impotency of the husband, or his absence from the realm, has been severely and justly criticised, not without some good results. '^ The decision of the House of Lords in the cele- brated Banbury Peerage Case proceeded upon the reasonable assumption that moral as well as physical impossibilities may affect the rule of legitimacy. Here husband and wife occupied the same house at the very time the child must have been begotten, and no case of impotency was made out, and yet that child was held not to be the child of the hus'band; for the testimony by collateral proof as to a moral impossibility was sufficiently strong notwithstanding. °° This case was confirmed by another, where husband and wife had voluntarily separated, but the husband resided at a distance of only fifteen miles, and sometimes visited bis wife; and the wife was delivered of a child, which was pro- nounced a bastard, from evidence of the conduct of the wife and her paramour. Here it was said, " The case, therefore, comes back to the question of fact." '^ Still later cases strengthen the same doctrine.'^ Impotency of the husband, and his absence from 78. See 1 Greenl. Evid., §§ 343, 344 ; Liiffe, 8 East, 19B ; also Hitching v. CanjoUe v. FerriS, 23 N. Y. 90. And Eardley, L. E. 3 P. & D. 348, as to see Sale v. Crutchfield, 8 Bush, 636; admitting declarations of the person Dean v. State, 29 Ind. 483. whose legitimacy is at issue. 79. 2 Kent Com. 211, n.; Fraser, 82. Bosvile v. Attorney-General, 12 Parent & Child, 7. P. D. 177. Here a child had been 80. 1 Sim. & Stu. 153. See Nicolas bom two hundred and seventy-six days on Adulterine Bastardy, 181, a volume after the last opportunity of inter- written to show that this case over- course between the husband and wife, turns the old law of England. or within a very few days later than 81. Morris v. Davis, 5 CI. & Fin. the usual period of gestation; and 463. And see Barony of Saye & Sele, there was evidence tending to show 1 CI. & Fin. (N. S.) 507; Sibbett v. that the wife regarded the child aa the Ainsley, 3 L. T. (N. S.) 507; Sibbett offspring of her paramour. A still V. Ainsley, 3 L. T. (N. S.) 583,Q.B.; stronger case is Bnmaby v. Bailee, 42 Fraser, Parent & Child, 8; King v. Ch. D. 282. § 696 PARENT AND CHILD. 726 the realm, suggest tten tut two classes of cases, and those not the only ones, where children may now be pronounced bastards.*^ In this country, cases have not unf requently arisen which involve the legitimacy of offspring; and the more reasonable doctrine favors legitimacy to about the same extent as the later English decisions.** The presumption of legitimacy is strongly carried, as the cases below cited indicate ; though not so far as to exclude proof of non-acecss of the husband or such other rational facts as might rebut this presumption, and show that the child of a married woman was in reality a bastard.*' Doubt and suspicion or un- 83. Hargrave v. Hargrave, 9 Beav. 553. "I apprehend," said Lord Langdale, "that evidence of every kind, direct or presumptive, may be adduced, for the purpose of showing the absence of sexual intercourse which, in cases where there has been some society, intercourse, or access, has been called non-generating access. We have, therefore, to attend to the conduct and the feelings, as evidenced by the conduct of the parties towards each other and the offspring, and even to the declarations accompanying acts, which are properly evidence. Such circumstances are of no avail against proper evidence of generating access; but they may have weight, when the effect of that evidence is doubtful. If the wright is not such as to convince the minds of those who have to deter- mine the matter, the effect may only tend to shake, without removing, the presumption of legitimacy, which in such a case must prevail." 84. Patterson v. Gaines, 6 How. (TJ. S.) 583; 2 Kent Com. 211, and cases cited ; Hemmenway v. Towner, 1 Allen, 209 ; Van Aemam v. Van Aernam, 1 Barb. Ch. 375; Wright v. Hicks, 15 Ga. 160. 85. See Van Aernam v. Van Aernam, 1 Barb. Ch. (N. Y.) 375; Kleinert v. Ehlers, 38 Pa. 439 ; PhiUipa v. Allen, 2 Allen (Mass.), 453; Hemmenway v. Towner, 1 Allen (Mass.), 209 State V. Herman, 13 Ire. 502; Tate v. Pene, 19 Martin, 548 ; Cannon v. Can- non, 7 Humph. 410; State v. Shum- pert, 1 S. C. (N. S.) 85; Strode v. Magowan, 2 Bush (Ky.), 621; State V. Lavin, 80 la. 555; Blackburn v. Crawfords, 3 Wall. 175; Wilson v. Babb. 18 S. C. 59'. Collateral proof of legitimacy is not to be favored. See Kearney v. Denn, 15 Wall. 61. But under suitable circumstances the grant of letters of administration may be conclusive in other courts. Cajolle v. PerriS, 13 Wall. 465. See cases, § 225. Formerly, in portions of the United States, slave marriages were deemed unlawful, and the offspring illegiti- mate. Timmins v. Lacy, 30 Tex. 115. But slavery no longer exists, and the tendency of our legislation is now to uphold as far as possible former mar- riages of colored persons, and the legitimacy of their offspring, cohabi- tation continuing. See White v. Boss, 40 Ga. 339; Allen v. Allen, 8 Bush (Ky.), 490; Gregley v. Jackson, 38 Ark. 487; 34 La Ann. 265; Clements V. Crawford, 42 Tex. 601; Daniel v. Sams, 17 Fla. 487; supra, § 17. To impugn a child's paternity, repu- tation of the mother for nnchastity is^ admissible, if at all, only as to unchas- tity prior to connection with the re- puted father. Morris v. Swaney, 7 Heisk. 591; Warlick v. White, 76 N. C. 175. If the son was colored and the mother an Indian, the color will be presumed to have been derived from he mother rather than disturb the pre- sumption of legitimacy. Illinois Land Co. v. Bonner, 75 111. 315. But other- wise where a mulatto child is born of 'l^27 LEGITIMATE CHILDEEN. § 69T favorable rumor furnish no suflBcient ground for adjudging illegit- imacy. In short, the presumption in favor of the legitimacy of a child bom in -wedlock is not to be taken as a presumption of law, but a presumption which may be rebutted by evidence clear and conclusive, though not resting merely on a balance of probabilities/' § 697. Legitimation of Illicit Offspring by Subsequent Marriage. In respect of the legitimation of offspring by the subsequent marriage of their parents, the civil and common-law systems widely differ. By the civil and canon laws, two persons who had a child as the fruit of their illicit intercourse might afterwards marry, and thus place their child to all intents and purposes on the same footing as their subsequent offspring, bom in lawful wed- lock.'^' But the common law, though not so strict as to require that the child should be begotten of the marriage, rendered it indispensable that the birth should be after the ceremony.*' Let us notice this point of difference at some length. It appears that the law of legitimation per subsequens matrir monium is of Roman origin; introduced and promulgated by the first Christian Emperor, Oonstantine, as history alleges, at the instigation of the clergy. This was an innovation upon the earlier Koman system; and the object of its introduction was to put down, that matrimonial concubinage which had become so universal in the Empire.'^ Justinian afterwards made this law perpetual.'" Its first appearance in the canon law is found in two rescripts of Pope Alexander III., preserved in the Decretals of Gregory, and a white woman whose husband is 87. 2 Kent Com. 208 ; 1 Burge, Col. white; and here expert medical testi- & For. Laws, 93; (189'4) App. C. 165. mony is proper as to the natural im- 88. 1 Bl. Com. 454. If the child be possibility of white parentage on both bom after the ceremony, even though sides. Bullock v. Knox, 96 Ala. 195. it be but a few weeks later, the pre- Where parents and other members of sumption of paternity against the hus- the family have long and consistently band is almost irrestible, and the treated a child as legitimate, this af- burden is on him to show aflrmatively fords strong presumption of legiti- to the contrary, in order to establish macy in any case. Illinois Land & the child's status as illegitimate. Loan Co. v. Bonner, 75 111. 315; Gardner v. Gardner, 2 App. Cas. 733. Gaines v. Mining Co., 33 N. J. Eq. Cf. In re Corlass, 1 Ch. D. 460. 86. But not proof indisputable. Bus- 89. "Licita oonsuetudo semimatri- som V. Forsyth, 33 N. J. Bq. 377. monium." Cod. lib. 6, tit. 57. And as to proof of marriage, see 90. Taylor 's Civil Law, 373 ; Fraser, also Schouler, Hus. & Wife, §§ 38, 39. Parent & Child, 32; 1 Burge, Col. (SL 86. See 12 App. Cas. 312; § 277. For. Laws, 92, 93. § 697 PAEENT AND CHILD. 728 issued in 1180 and 1172,^^ These extended the benefits of the marriage to the offspring of carnal love, and not merely to the issue of systematic concubinage. This law of legitimation waa introduced into Scotland within the range of authentic hitsory.'* It is also admitted, with different modifications, into the codes of France, Spain, Germany, and most other countries in Europe.'* The principle to which the law of legitimation per subsequens matrimonium is to be referred has been a subject of controversy. The canonists based the law not on general views of expediency and justice, but upon a fiction which they adopted in order to reconcile the new law with established rules ; for, assuming that, as a general rule, children are not legitimate unless born in lawful wedlock, they declared that, by a fiction of law, the parents were married when the child was bom. Such reasoning, by no means uncommon in days when the wise saw more clearly what was right than why it was so, has not stood the test of modem logic; and the Scotch courts have placed the rule once more where its im- perial founders left it; namely, on the ground of general policy and justice. " Legitimation is thought to be recommended by these considerations of equity and justice, that it tends to encour- age what is at first irregular and injurious to society, into the honorable relation of lawful matrimony; and that it prevents those unseembly disorders in families which are produced where the elder-bom children of the same parents are left under the stain of bastardy, and the younger enjoy the status of legitimacy." ** This doctrine of the civil law has found great favor in the United States. It has prevailed for many years in the States of Vermont, Maryland, Virginia, Georgia, Alabama, Mississippi, Louisiana, Kentucky, Missouri, Indiana, and Ohio."^ So in Massachusetts bastards are to be considered legitimate after the intermarriage of their parents and recognition by the father.'" And similar statutes are to be found in Maine, New Hampshire, 91. Deer. IV. 17, 1 ; IV. 17, 6, cited Munro v. Munro, 1 Bob. H. L. Scotch in Fraser, Parent & Child, 33. ' ' Tanta App. 492. est enim vis sacramenti (matrimonii) 95. Griffith's Law Regis, passim; 1 ut qui antea sunt geniti post con- Burge, Col. & For. Laws, 101. This tractum matrimonium habeantur le- provision protects the offspring of an gitimi. " adulterous connection as well as that 92. Fraser, Parent & Child, 32, 33. of parents who were free to contract 93. 1 Burge, Col. & For. Laws, 101. marriage when the children were bom. 94. Fraser, Parent & ChDd, 35; Hawbecker v. Hawbecker, 43 Md. 516. 96. Mass. Gen. Sts. 1860, ch. 91. 729 LEGITIMATE CHILDEEN. § 698 Penneylvania, Vermont, Tennessee, and elsewhere." There is, however, no l^al presumption that a man who marries the mother of a baatard child was its actual father ; '* and some recognition of paternity or else an adoption is a usual element in intermar- riages of this sort.'* § 698. Legitimation by Subsequent Marriage Not Favored in England. On the other hand, the English law has very strongly opposed the whole doctrine of legitimation per subsequens matrimonium. Even so far back as the reign of Henry III. is found a memorable instance where the peers refused to change the law in this respect, when urged to do so by the English bishops ; declaring with one voice, quod noluni leges Angliw muta/re, quw htic usque usitatm aunt et approbatw.^ Jealousy of canonical influence may partially account for this conduct, if not prejudice against the civil law generally. Certain it is that most English jurists have ever since stubbornly maintained the superiority of their own maxims, which place the immutability of the marriage relation above all the tender promptings of humanity towards innocent sufferers. Even Blackstone vigorously assails the civil-law doctrine, urging against it several rather artificial objections, in the apparent belief that legal consistency is better than natural justice.'' But on the other hand, Selden mentions that the children of John of Gaunt, Duke of Lancaster, were legitimated by an act of Parliament, in the 97. Maine Laws, 1852, ch. 266; Pa. might be called legitimation by public Laws, 1857, May 14; Vermont, B. or judicial record after intermarriage 8. 1863, ch. 56; Stimson, Stat. Law, of parents. See Lingen v. Lingen, 45 §§ 6631-6634; Ind. E. S. 1862, eh. 46. Ala. 410, 414; Pina v. Peck, 31 Cal. And see Graham v. Bennett, 2 Cal. 359; Talbot v. Hunt, 28 La. Ann. 3. 503; Starr v. Peck, 1 Hill (N. T.), Recognition of a leas formal character 270; Sleigh v. Strider, 5 Call, 439; suffices for purposes of inheritance in Danelli v. Danelli, 4 Bush, 51; Iowa. Crane v. Crane, 31 la. 296. Adams V. Adams, 36 6a. 236 ; Morgan 98. Jane's Estate, 147 Pa. 527; T. Perry, 51 N. H. 559'; Brown v. Brewer v. Hamor, 83 Me. 251; In re Belmarde, 4 Kan. 41; Williams v. Jessup, 81 Cal. 408. Williams, 11 Lea, 652; Brock v. State, 99. If the subsequent marriage was 85 Ind. 397. In some States still not a valid one, the child continues another mode of legitimation, for in- bastardized. Adams v. Adams, 154 heritance, if not for all other pur- Mass. 290. poses, is permitted by law as to such 1. Stat of Merton, 20 Hen. III. offspring; namely, by the father's oh. 9; 2 Kent Com. 209; 1 BL Com. formal declaration, or that of both 456. parents, properly attested, which is 2. 1 Bl. Com. 454, 455. filed in court and recorded. This § 699 PARENT AND CHILD. 730 reign of Richard II., founded on some obscure common-law custom.* Upon such principles it has been decided by the House of Lords, that where a marriage is in its inception unlawful, being at a time when the woman's first husband must have been alive, children bom even after the time when it was presumed that the first hus- band had died, must be pronounced illegitimate; the mere con- tinuance of the cohabitation after that event being insufficient, without celebration, to change the character of the connection.* IN'or will an absolute presumption of law be raised as to the con- tinuance of life to support such legitimacy ; for in every instance the circumstances of the case must be considered." And so strict is the rule, that where a person, bom a bastard, becomes, by the subsequent marriage of his parents, legitimate according to the laws of the country in which he was born, he is still a bastard, so far as regards the inheritance of lands in England.® But testa- mentary provisions for illegitimate offspring as " children " receive an increasing favor in the English courts ; and this disability of bastards to " inherit " English lands, notwithstanding a subsequent marriage, is now confined, moreover, to descents upon intestacy.'' § 699. Legitimacy of Offspring Born After Divorce. As to the status of children bom after divorce, partial or com- plete, little can be stated from the books ; for such divorces hardly existed at the common law.* They are probably illegitimate prima facie, if bom of the divorced mother within an unreason- able time after separation.* A remarriage by a divorced party in a state or country where such marriages are not prohibited will 3. Selden on Pleta, ch. 9, § 2. And after hia father 's death, and kept poB- see Barrington, p. 38; 2 Kent, Com. session until his own death, so that 209. they descended to his own issue, no 4. Lapsley v. Grierson (1848), 1 CI. disturbance of title was permitted on & Fin. (N. S.) 498; Cunningham v. the plea of such child's illegitimacy. Cunningham, 2 Dow, 482. Bussom v. Forsyth, 32 N. J. Eq. 277. 5. Lapsey v. Grierson, Ih., explain- 7. Grey v. Earl of Stamford (1892), ing Eex v. Twyning, 2 B. & A. 386. 3 Ch. 88, § 231. 6. Doe d. Birtwhistle v. Vardill, 6 8. See Husband & Wife, supra, § 22 ; Bing. N. C. 385; 7 CI. & Fin. 895. 2 Bishop, Mar. & Div., 5th ed., § 559; And see ch. 6, post. Montgomery v. Montgomery, 3 Barb. The only exception permitted by (N. Y.) Ch. 132. the common law under this general 9. St. George v. St. Margaret, 1 head was that where the child whose Salk. 123; 3 Bishop, Mar. & Div., § parents subsequently married entered 740. into possession of his father's lands '''^l LEGITIMATE CHILDREN. § 702 make the offspring of such remarriage legitimate in spite of local prohibitions where the divorce was decreed." § 700. Legitimacy in Marriages Null but Bona Fide Contracted. The issue of marriages rendered null and void are on general principles necessarily illegitirnate. Opposed to this is the civil- law doctrine of putative marriages, first introduced into the canon law by Pope Innocent III. ; which upholds the legitimacy of the children in cases where the parties, or either of them, bona fide believing that they could marry, had entered into the contract while there was some unknown impediment existing.^^ This sub- ject is regulated by statute to a great extent in this country; and here again our system conforms to the civil rather than the common law." § 701. Legitimation by the State or Sovereign. Legitimation by rescript of the Emperor appears in the Institutes of Justinian.^^ Still later did the Pope assume the power to grant the status of legitimacy; and in many of the canonical dispensa- tions occur clauses of this sort.^* The effect of these high-sounding clauses is now of little consequence.^' The English Parliament, by virtue of its transcendent power, may render a bastard legiti- mate and capable of inheriting.^' This same power has been claimed for the legislatures of the United States.^' And except so far as legislative acts may come under constitutional restraints against impairing the obligation of contracts, there seems no reason why they should not be uniformly upheld. § 702. Domicile of Children; Citizenship, &c. The domicile of a child's origin, or the domicile at any time of his minority, is to be determined by the domicile of his parents ; 10. Moore v. Hegeman, 92 N. Y. tory, book 1, ch. 19; Eiddell, Peer & 521. Cons. Law, 421. 11. Fraser, Parent & Child, 22 et 13. Nov. 74, chs. 1, 2; and 89, ch. 9. seq.; 1 Burge, Col. & For. Laws, 96. 14. See Fraser, Parent & Child, 43. See Lapsley v. Grieraon, 1 CI. & Fin. 15. Ih. (N. S.) 498, cited supra. 16. 1 Bl. Com. 459. And see Stat. 6, 12; See supra, § 22. And see Gra- Will. IV., ch. 22 ham V. Bennett, 2 Cal. 503. Yet there 17. Beall v. Beall, 8 Ga. 210 ; Vidal is a case, that of Sir Ralph Sadher, v. Commajere, 13 La. Ann. 516. It where Parliament gave relief. See will be presumed that a statute of Nicolas. Adult Bast. 61-63; Fraser, this kind confers legitimacy only so Parent & Child, 24; Burnett's His- far as to give the capacity to inherit. Gnibb's Appeal, 58 Penn. St. 55. § 702 PABENT AND CHILD. 732 or, to speak more strictly, of his father, if the latter be alive and not legally deprived of his paternal rights. We speak at this time only of legitimate or of legitimated or adopted children.^' The domicile of origin remains until another is lawfully acquired. And since minors are not sui juris, they may not change their domicile during their minority, though they may when of full age ; hence they retain during infancy the domicile of their parents; if the parents change their domicile, that of the infant children follows it ; and if the fathei* dies, his last domicile is that of the infant children.^' The mother has authority to change the domicile of her minor children, provided she do so without fraudulent views to the succession of their estate ; though it would appear that she cannot change it after her remarriage.'"' In general, dwelling at a certain place is prima facie proof that a person is domiciled there ; and the home of a husband, reasonably chosen in his right- ful discretion, is the legal domicile of vsdfe and young children, wherever he may choose to fix it.^^ This question of domicile may be of importance in determining the grant of administration on a deceased infant's estate, or if the child be alive, of his guardian's appointment. Prima facie, the infant's residence or domicile is that of his parent, and such it will remain during minority, in spite of his temporary absence at school or elsewhere. Nor can he of his own 18. The rule for natnral-bom chil- widow's removal from the homestead dren of wedlock applies to children must not prejudice the children's legally adopted, except that the claim thereto. Showers v. Eobinson, child's domicile in this latter case is 43 Mich. 503. After the mother re- that of the adopting parent at the marries, the domicile of the child time of adoption. Van Matre v. ceaaes to change, and does not follow Santey, 148 111. 536 ; Woodward t. that of the stepfather. Eyall v. Ken- Woodward, 87 Tenn. 644 nedy, 40 N. Y. Super. 347. A female 19. Story, Confl. Laws, §§ 45, 46, infant cannot change her own domi- and cases cited; 1 Burge, Col. & For. cile, even for the purpose of annul- Laws, 33; Abington v. North Bridge- ling her marriage. Blumenthal v. Tan- water, 23 Pick. 170 ; Taylor v. Jeter, nenholz, 31 N. J. Eq. 194. 33 Ga. IftS; Daniel v. Hill, 52 Ala. Following the usual rule, however, 430; Wharton, Confl., § 41. But see the real estate, even of children, de- Ishan V. Gibbons, 1 Bradf. Sur. 70; scends according to the law of situs, Somerville v. Somerville, 5 Ves. 750. and the personal according to the 20. Potinger v. Wightman, 3 Mer. domicile. 67 ; 1 Burge, Col. & For. Laws, 39 ; 21. Supra, §§ 40, 41 ; Luck v. Luck, Brown v. Lynch, 2 Bradf. Sur. 214; 92 Cal. 653. Carlisle v. Tuttle, 30 Ala. 613. The '^33 LEGITIMATE CHILDEEN. § 703 motion acquire a new domicile, since he is not a person sui juris." But his domicile may be changed by his father, if he has one; otherwise, according to the best modem authorities, by the surviv- ing mother until her remarriage ; and perhaps even by the guardian himself, although not a relative, provided he act in good faith." The intent of the parent or guardian in such cases is always mate- rial; but this intent is to be determined by facts. The original domicile of an infant is that of his parents at the time of his birth.^* And even an emancipated minor is not usually in a position to acquire a legal domicile while his minority lasts.'"' The rule of a minor's citizenship corresponds; and where the parent removes to another State or country, the minor child's citizenship changes, though he be temporarily left in the former jurisdiction.^" Where the parent surrenders the care and custody of his minor child to one who agrees to assume the parent's duty during the entire remaining period of minority, the child acquires the domicile of the person who assumes this responsibility.*' § 703. Conflict of Laws as to Domicile and Legitimacy. Some writers have said that, when the laws of two countries are in conflict, the legitimacy or illegitimacy of children is to be deter- miiied by the domicile of origin.^* Others, again, that it is depend- ent upon the lex loci of marriage.'" Between these writers there is no real discrepancy; for in every such case two inquiries are in- volved, the one whether the marriage was in itself lawful, the other whether the child was legitimate by the marriage. Of the conflict of laws regarding marriage we have already spoken.*" That in- volving the status of legitimacy demands further consideration. A conflict manifestly arises between the laws of domicile of origin and subsequent marriage, and the laws of the actual domicile or sitv^ of property, where those of the one country admit legitimation 22. Macphers Inf. 579; Brown v. choate citizenship gained under the Lynch, 3 Bradf. 215; Story, Confl. father's declared intention, see Boyd Laws, § 46. V. Nebraska, 143 U. S. 135. 23. Potinger v. Wightman, 3 Mer. 37. Allgood v. Williams, 92 Ala. 67; 2 Kent, Com. 227, 430; 1 Burge, 551; Delaware, L. & W. E. E. Co. v. Col. & For. Laws, 39; Brown v. Lynch, Petrowsky, 250 Fed. 554, 38 Sup. Ct. 2 Bradf. 214. Eep. 427. 34. See, further, post, Part TV., ch. 38. 1 Burge, Col. & For. Laws, 111; 5, as to Gruardian and Ward. Fraser, Parent & Child, 45. 35. North Yarmouth v. Portland, 73 39. Story, Confl. Laws, § 105 ; Whar- Me. 108. See Ih. 583 ; § 267. ton, Confl., §§ 35, 41. 36. Dresser v. Edison lUuminating 30. See § 33. Co., 49 Fed. B. 257. As to the in- § 703 PARENT AND CHILD. Y34r per subsequens matrimonium, and those of the other do not. As^ for instance, where children are horn, and their parents after- wards intermarry in certain of the United States or in Scotland^ and then remove with their children to England; or where such children are deemed to have acquired property rights in the last- named country. On this point there is much diversity of opinion. And the English courts long maintained their distinctive policy with considerable zeal in all doubtful eases. Thus particularly was this done in the case of Birtwhistle v. VardiU, where a child, legitimate to all purposes in Scotland, was sternly denied the full rights of a lawful child as to inheritance in England.^^ Yet the law of foreign countries as to legitimacy is so far respected in England that a person illegitimate by the law of his domicile of birth will be held illegitimate in England.^^ The latest English ''sses, however, so far recede from this sturdy doctrine as to confine the application of Birtwhistle y.Vardill to claims of intestate suc- cession to real property in England ; ^* and on the other hand, a bequest of pensonalty in an English will to the children of a for- eigner is now construed to mean to his legitimate children, — that is to say, on international principle, treating all children as legiti- mate whose legitimacy is established by the law of their father's domicile.^* Our recent American cases have repudiated the illib- eral English doctrine with little care to discriminate between the kinds of property.^^ 31. 7 Cl. & Fin. 895; 4 Jur. 1076; Stoltz v. Daering, 113 111. 234. And 26. 5 B. & C. 438 ; Story, Confl. Laws, this, notwithstanding the child was be- § 93 et seq., where the doctrine of gotten in the State where the ques- Birtwhiatle v. Vardill is strongly com- tion of inheritance afterwards, arose, bated. See Boyes v. Bedale, 12 W. E. Lingen v. Lingen, 45 Ala. 410. 2i32, before Wood, V. C; Story, Confl. 33. Grey v. Earl of Stamford Laws, 6th ed., § 93 w., n. by Eedfield. (1892), 3 Ch. 88. And see Goodman v. Goodman, 3 Gif. 34. Andros v. Andres, 24 Ch. D. 643. 637; Goodman's Trusts, 17 Ch. D. 266. 32. Munro v. Saunders, 6 Bligh, 35. When an illegitimate child has, 1 468; cases cited in Birtwhistle T. Var- by the subsequent marriage of his dill, 9 Bligh, 53. But a foreign le- parents, become legitimate by the gitimation was so far respected in a laws of the State or country where late case that a succession tax was not such marriage took place, and the par- laid upon the child as a stranger in ents were domiciled, he is thereafter blood. Skottowe v. Young, L. B. 11 legitimate everywhere, and entitled ttt Eq. 474. all the rights flowing from that status. In this country the doctrine of Birt- including the right to inherit real or w^histle V. Vardill is sometimes, though personal estate. Miller v. Miller, 91 rarely, followed in matters of inherit- N. Y. 315. The same rule applies to ance. Smith v. Derr, 34 Penn. St. 136; a legally "adopted" child under the 735 LEGITIMATE CHILDEEN. § 703 The doctrine of general writers is that the status of legitimacy or illegitimacy, or the capacity to become legitimate per subsequens matrimonium, is governed by the law of the domicile of the child'* origin.^* And since the domicile of origin is that of the father, the great leading fact to be ascertained in such inquiries will be generally the domicile of the father.^' A person born before wed- lock, who in the country of his birth is considered illegitimate, will not by a subsequent marriage of his parents in another country, by whose laws such a marriage would make him legitimate, cease to t be illegitimate in the country of his birth.^^ On the other hand, without a subsequent marriage of his parents, lawful by the laws of the land where celebrated, it is clear that any child must remain illegitimate, whatever be the domicile of his origin. local statute in the State or eountry to conflict of laws in adoption, see of domicile, even though the child was § 2^32, note. an illegitimate one thereby legiti- 37. Fraser, Parent & Child, 45. mated. Blythe v. Ayres, 96 Cal. 533. 38. Story, Confl. Laws, § 106. See 36. 1 Surge, Col. & For. Laws, 111. Sueession of Caballero, 24 La. Ann. And see Skottowe v. Young, supra. As 573. § 704 PABENT AND CHILD. 736 CHAPTER III. n-USGITIMATE CHILDBEN. Section 704. Illegitimate Children; Their Peculiar Footing. 705. Who are Bastards. 706. Presumption of Legitimacy. 707. Custody under English Law. 708. Custody under American Law. 709. Maintenance. 710. What Law Governs Property Bights. 711. Disability of Inheritance at Common Law. 712. Inheritance by Bastards under Modem Statutes. 713. Inheritance from Bastards. 714. Bequests and Gifts to Illegitimate Children. 715. Effect of Recognition. 716. Persons in Loco Parentis; Distant Belatives, 4e. 717. Guardianship of an Illegitimate Child. § 704. Illegitimate Children; Their Peculiar Footing. Illegitimate children, or bastards, stand upon a different footing from legitimate children. We have already seen that bastards may be legitimated in many of the United States, by the subse- quent marriage of their parents or otherwise. The rights and disabilities of bastards, as such, and while continuing illegitimate, require our present attention. The rights of a bastard are very few at the common law; chil- dren bom out of a legal marriage having been from the earliest times stigmatized with shame, and made to suffer through life the reproach which was rightfully visited upon those who brought them into being. The dramatist depicts the bastard as a social Ishmaelite, ever bent upon schemes for the ruin of others, fully determined to prove a villain ; thus fitly indicating the public esti- mate of such characters centuries ago in England. The law-writ- ers, too, pronounce the bastard to be one whose only rights are such as he can acquire; going so far as to demonstrate, by cruelly irresistible logic, that an illegitimate child cannot possibly inherit, because he is the son of nobody; sometimes called filivs nullius, and sometimes filitts pojnili,^' Coke seemed to concede a favor in admitting that the bastard might gain a surname by reputation 39. Fort, de LI., ch. 40; 1 Bl. Com. 458. 737 ILLEGITIMATE CHILDEEN. § 705 though none by inheritance." Statutes for the benefit of bastards are remedial in nature.*^ § 705. Who Are Bastards. A bastard at common law is a child not bom in wedlock or under circumsitances such that the husband of the mother could not be the father,*^ or where the marriage of its supposed parents was void.*' The children of a putative marriage are legitimate,** and a child is legitimate when bom after the marriage of its parents though begotten before.*^ Curative statutes designed to make issue of void marriages legit- imate do not apply to the children of persons who lived together without any marriage of any kind.** An interlocutory decree of divorce does not affect the status of children begotten after its rendition as they are not parties to it.*' The status of a child is determined by the law in force at the time of its birth, in the place of its birth and of the domicile of the parents.** 40. Co. Litt. 3. The very term ' ' bas- tard," said to be derived from the Saxon words "base start," expresses contempt. See Fraser, Parent & Child, 119. A legitimacy declaration act in foreign marriages is a feature of mod- ern English law. 41. Wilson V. Bass, — Ind. App. — , 118 N. E. 379. See Wasmund v. Wasmund, 90 Wash. 274, 156 P. 3 (such laws are remedial, permitting beneficiary to take advantage of exist- ing remedies). 42. Briggs v. McLaughlin, 134 La. 133, 63 So. 851; Parker v. Nothomb, 65 Neb. 308, 91 N. D. 395, 93 N. W. 851, 60 L. E. A. 699; Eohwer v. Dis- trict Court of First Judicial Dist., -- Utah, — , 125 P. 671. The cUld of a married woman by one not her husband is a bastard. McLoud v. State, 122 Ga. 393, 50 S. E. 145. 43. Baylis v. Baylis, 207 N. Y. 446, 101 N. E. 176, affirming judgment 131 N. T. S. 671, 146 App. Div. 517 (where prior divorce relied on was 47 void) ; In re Grande's Estate, 141 N. T. S. 535, 80 Misc. Bep. 450; Mans- field V. Neff, 43 Utah, 258, 134 P. 1160. See Evatt v. Mier, 114 Ark. 84, 169 8. W. 817. See Cooper v. Mc- Coy, 116 Ark. 501, 173 8. W. 412. See In re Shipp's Estate, 168 Cal. 640, 144 P. 143 (ceremonial marriage with- out license renders children legiti- mate) . 44. Succession of Benton, 106 La. 494, 31 So. 123, 59 L. B. A. 135. 45. Doyle v. State, 61 Ind. 324. 46. In re Walker's Estate, 5 Ariz. 70, 46 P. 67; Keen v. Keen, 184 Mo. 358, 83 S. W. 526, 201 U. S. 319, 26 Sup. Ct. 494, 50 L. Ed. 772. 47. In re Walker 's Estate, 176 Cal. 402, 168 P. 689. 48. Ferrie v. Public Administrator, 3 Bradf. Sur. 151 ; Holmes v. Adams, 110 Me. 167, 85 A. 492; Green v. Kel- ley, 228 Mass. 602, 118 N. E. 235 (law of domicile governs). See Mc- Goodwin v. Shelby (Ky.), 206 8. W. 625 (mulatto). § 706 PARENT AND CHILD. 738 § 706. Presumption of Legitimacy. The legitimacy of children of persons who lived openly as hus- band and wife will be presumed.** The presumption of the legit- imacy of a child born in lawful wedlock is very strong and can only be rebutted by evidence sihowing that the child could not have been begotten by the father/" and the presumption will even apply 49. In re Campbell '3 Estate, 13 Cal. App. 707, 108 P. 669 (reh. den. [Sup.], 12 Cal. App. 707, 108 P. 676; McGoodwin v. Shelby (Ky.), 206 S. W. 625; Adkins v. Bentley, 177 Ky. 616, 197 S. "W. 1086; Skidmore V. Harris, 157 Ky. 756, 164 S. W. 98; Nelson v. Jones, 245 Mo. 579, 151 S. W. 80; In re Hall, 70 N. Y. S. 406, 61 App. Div. 266; Locust v. Caruthers, 23 Okla. 373, 100 P. 520. Proof that couple had lived to- gether in the same house and tilled the same land for 30 years, and that they had six children born to them, ■which bore their name, held to give rise to presumption of such chil- dren's legitimacy. Cave v. Cave, 101 S. C. 40, 85 S. E. 244. 50. Bunel v. O'Day, U. S. C. C. Mo. 1903, 125 F. 303; Adger v. Ack- erman, 62 C. C. A. 568, 115 F. 124; Lay v. Fuller, 178 Ala. 375, 59 So. 609; Sims v. Birden, 197 Ala. 690, 73 So. 379, 744; Harkrader v. Eeed, 5 Alaska, 668; Kennedy v. State, 117 Ark. 113, 173 S. W. 842; Ex parte Madaline, 174 Cal. 693, 164 P. 348; In re Mills' Estate, 137 Cal. 298, 70 P. 91, 92 Am. St. Eep. 175; Jones v. State, 11 Ga. App. 760, 76 S. E. 72; Smith v. Henline, 174 111. 184, 51 N. E. 227; In re Henry's Estate, 167 Iowa, 557, 149 N. W. 605; In re Os- bom's Estate (Iowi.),168 N.W. 288; Bethany Hospital Co. v. Hale, 64 Kan. 367, 67 P. 848 (denial of paternity by husband will not rebut presump- tion) ; Bethany Hospital Co. v. Hale, 64 Kan. 367, 67 P. 848; Dunn v. Garnett, 129 Ky. 728, 112 S. W. 841 ; Wilson v. Wilson, 174 Ky. 771, 193 S. W. 7; Buekner's Adm'rs v. Buck- ner, 120 Ky. 596, 87 S. W. 776, 27 Ky. Law Eep. 1032; Vanover v. Steele, 173 Ky. 114, 190 S. W. 667; Bowman v. Little, 101 Md. 273, 61 A. 223, 657; Phillips v. Allen, 84 Mass. 453 ; Sullivaji v. Kelly, 85 Mass. 148; Egbert v. Greenwalt, 44 Mich. 245, 6 N. "W. 654, 38 Am. Eep. 260; Jackson v. Phalen, 237 Mo. 142, 140 S. W. 879; Same v. Phelan, 237 Mo. 153, 140 S. W. 882; Lincecum v.. Lineecum, 3 Mo. 441 ; Boyer v. Dively, 58 Mo. 510 (where parents and chil- dren are dead) ; Town of Canaan v. Avery, 72 N. H. 591, 58 A. 509 (evi- dence that wife is guilty of adultery will not rebut presumption) ; Vree- land V. Vreeland, 78 N. J. Eq. 256, 79 A. 336; Wallace v. Wallace, 73 N. J. Eq. 403, 67 A. 612 ; Grates v. Garcia, 20 N. M. 158, 148 P. 493; Ferrie v. Public Administrator, 4 Bradf. Sur. (N. Y.) 28; In re Grande's Estate, 141 N. Y. S. 535, 80 Misc. Eep. 450. It is the policy of law and the duty of the court to preserve the legitimacy of children, where it can be done con- sistently with the law and the facts. In re Stanton, 123 N. Y. S. 458 ; Flint V. Pierce 136 N. Y. S. 1056; In re Kelly's Estate, 95 N. Y. S. 57, 46 Misc. 541; In re Kennedy, 143 N. Y. S. 404, 82 Misc. 214; In re Leslie's Estate, 161 N. Y. S., 790, 175 App. Div. 108; s. c, 156 N. Y. S. 346, 92 Misc. 663 ; Powell v. State, 84 Ohio^ St. 165, 95 N. E. 660; Gasman v. Schmitz, 24 Ohio Cir. Ct. E. 709 (brothers and sisters are presumed to be legitimate) ; Bell v. Territory, 8 Okla. 75, 56 P. 853; O'Hern v. State,. 12 Okla. Cr. App. 505, 159 P. 938; McAllen v. Alonzo, 46 Tex. Civ. App. 449, 102 S. W. 475; Scott v. Hillen- berg, 85 Va. 245, 1 S. E. 377 (cir- 139 ILLEGITIMATE CHILDEEN. § 706 where the child is born so soon after the marriage took place that it must have been begotten before," and the presumption -will be extended even to children born before marriage of the parents."^ Where the husband and wife live apart, non-access may be shown by the facts and circumstances,^^ and this evidence need not go to the extent of showing it impossible that the husband could have been the father of the child, but the rule seems to be that the evidence of non-access must be such as to satisfy the jury beyond a reasonable doubt.°* Evidence that the former spouse of one of the parties is still living is insufficient to rebut the presumption of legitimacy,"" and although the presumption cannot be rebutted by evidence of non- access by the husband, still it may be shown by admissions show- ing the child to be illegitimate/^ There is no presumption of legitimacy where there is no evidence of a marriage,"^ or where the husband was impotent,"^ and where it appears beyond a reasonable doubt that the husband had no possibility of access to the wife at the time of conception the children will be found illegitimate."' On an issue of heirship cumstances showing doubt and sus- picion are not enough). 51. Grant v. Stimpson, 79 Conn. 617, 66 A. 166; Hall v. Gabhert, 213 III. 208, 72 N. E. 806. Where a child is horn 20 d 773. ■^65 ADOPTED CHILDREN. § Y22 adopt had never been repudiated and the plaintiff never knew the identity of her mother until the death of the defendant."' An oral contract of adoption may be enforced in the State where the parents live although the contract was made in another State where the statutes require formal proceedings which have never been complied with where in both States an oral contract of this nature may be enforced in equity.^* Where one treats another as his child on the parent's making this a condition of taking the child this shows an executed agree- ment to adopt the child which is binding in the absence of a deed of adoption.*^ A father may be bound by a contract to adopt although his wife, who does not join in the contract, will not be barred of her rights of inheritance by the adoption,^" but an unex- ecuted contract to adopt cannot be enforced by giving the child lights in the estate of the son of the adoptive parent. The equi- table relation resulting from the contract makes the child for some purposes the child of the adoptive parent, but cannot give any rights against the property of the relatives of the parent.*^ It is a sufficient consideration for an agreement to adopt that the child left his parents and lived with the foster parents,** but after a divorce awarding custody of a child to the mother, any agreement by the father to allow the child to be adopted by another is void for lack of consideration, as the father has no control over such child.** The measure of damages for breach of a contract to adopt is not the value of the share of the estate which the plaintiff would have inherited if adopted, but is the value of the services rendered or outlay incurred on the faith of the promise,*" § 722. Consent of Parents. Unless required by statute consent of the natural parents in not necessary to adoption,*^ but the consent of both the natural parents 83. Crawford v. Wilson, 139 Ga. 87. Mulaney v. Cameron (Kan.), 654 78 S. E. 30, 44 L. K. A. (N. S.) 161 Pae. 1180. 773_ 38. Lee v. Bermingham, 199 111. 34. Fisher v. Davidson (Mo.), 19'5 App. 497. S. W. 1024, L. K. A. 1917F, 692. 39. Fugate v. Allen, 119 Mo. 183, 35. Crawford v. Wilson, 139 Ga. 95 8. W. 980. 654 78 S. E. 30; Lynn v. Hockaday, 40. Sandham v. Grounds, 36 C. C. A. I62' Mo. Ill, 61 S. W. 885, 85 Am. 103, 94 F. 83. St E 480. *^' Clarkson v. Hatton, 143 Mo. 47, 36.'Middleworth v. Ordway, 191 N. 54, 44 S. W. 761, 39 L. E. A. 748, 65 T 404 84 N. E. 291. A-™- St. E. 635; Haworth v. Haworth, ' 123 Mo. App. 303, 100 S. W. 631. 765 PABENT AND CHILD. 838 parents equal rights in minor children it is proper for both to join in an action to recover for loss of services of a minor child.*' Suit may he brought in some States by statute by a deserted wife/* or where it appears that by mutual arrangement the mother has taken the care of the child and the father has relinquished his rights to the child's earnings,*^ or by anyone standing in loco parentis to the child.** A divorce decree giving the mother care and custody of the chil- dren does not release the father from the duty of support, and therefore does not entitle her to sue for injury to a child.*' Where the father dies pending suit and the mother is substituted a judg- ment in her name in her own right cannot be obtained."" § 765. Negligence of Parent. The negligence of the parent in failing to take care properly of his minor child will bar the parent from action for injury to the child where the parent's negligence contributes to the injury,"^ as Tenn. 497, 53 S. W. 731; Natchez E. 50. Kelly v. Pittsburg & B. Trac- T. Cook, 63 Miss. 38. Some late eases tion Co., 204 Pa. 633, 54 A. 482. prefer to say that the right is based upon the parental relation, as dis- tinct from, though analogous to, that of master and servant. Netherland- American Steam Nav. Co. v. Hol- lander, 59 Fed. 417. See Sorenson v. Balaban, 42 N. T. S. 654, 11 App. Div. 164, 4 N. Y. Ann. Cas. 7. 45. Bailey v. College of Sacred Heart, 52 Colo. 116, 119 P. 1067; Thomas v. St. Louis, L M. & S. By. Co., 180 S. W. 1030. 46. American Steel & Wire Co. v. Tynan, 183 F. 949, 106 C. C. A. 289 (unless remarried) ; Tornroos v. E. H. White Co., 220 Mass. 336, 107 N. E. 1015; Tost V. Grand Trunk Ey. Co., 163 Mich. 564, 128 N. W. 784, 17 Det. Leg. N. 911. 47. McGarr v. National & Provi- dence Worsted MiUs, 24 E. I. 447, 53 A. 320, 60 L. E. A. 122, 96 Am. St. E. 749. 48. City of Albany v. Lindsey, 11 Ga. App. 573, 75 S. E. 911. 49. Keller v. City of St. Louis, 152 Mo. 596, 54 S. W. 438, 47 L. E. A. 391. 51. Defendant's failure to warn. In an action by a parent for injury to a minor, based upon defendant employer's failure to instruct her as to the dangers of the employment, that the parent knowingly permitted the minor to go unprotected among defendant's machinery, knowing the place to be dangerous, etc., is insuffi- cient to show contributory negligence, defeating right to recovery. Eeaves v. Anniston Knitting Mills, 154 Ala. 565; 45 So. 702; s. c, 166 Ala. 645, 52 So. 142; St. Louis, I. M. & S. Ey. Co. V. Colum, 72 Ark. 1, 77 S. W. 596 ; Thomas v. Chicago, M. & St. P. Ey. Co., 114 la. 169, 86 N. W. 259; Feldman v. Detroit United Ey., 162 Mich. 486, 127 N. W. 687, 17 Det. Leg. N. 707; Mattson v. Minnesota & N. W. E. Co., 95 Minn. 477, 104 N. W. 443, 70 L. E. A. 503, 111 Am. St. E. 483; Peterson v. Martin (Minn.), 164 N. W. 813; Mattson v. Minne- sota & N. W. E. Co., 98 Minn. 296, 108 N. W. 517; Berry v. St. Louis, M. & S. E. E. Co., 214 Mo. 593, 114 S. W. 27; Winters v. Kansas City 833 INJURY TO CHILD. § 767 ■where the parent was at work and unable to have personal orer- sight of the child."* If the defendant's negligence was the prox- imate cause of the injury the parents may still recover although negligent in some jurisdictions."* The negligence of a parent is not to be imputed to a minor child. So where the father is driv- ing a horse and sleigh with his child as passenger the father's negligence is not to be imputed to the child."* § 766. Contributory Negligence of Child. The contributory negligence of the child will be a defence to an action by the parent if it proximately contributed to the injury." I 767. Pleadings. The petition should set forth the injury received and the rela- tion of the plaintiff as parent,"* and that as a consequence thereof Cable By. Co., 99 Mo. 509, 12 S. W. care used) ; Quinn v. City of Pitts- 652, 6 L. E. A. 53«, 17 Am. St. E. 591 (parents' negligence must be the proximate cause of injury) ; Harring- ton V. Butte, A. & P. Ey. Co. (Mont., 1908), 95 P. 8 (prima fade evidence) ; Conway v. Monidah Trust, 52 Mont. 244, 157 P. 178; O'Shea v. Lehigh Val. E. Co., 79 N. T. S. 890, 79 App. Div. 254; Eapa- port V. Pittsburgh Eys. Co., 247 Pa. 347, 93 A. 493; Kuehne v. Brown, 257 Pa. 37, 101 A. 77; Pollack v. Penn- sylvania E. Co., 210 Pa. 634, 60 A. 312, 105 Am. St. E. 846; Watson v. Highland Grove Traction Co., 68 Pa. Super. Ct. 332; Kilpatrick v. City of Spartanburg, 85 S. E. 775; Berger v. Charleston Consol. Ey., Gas. & Elec- tric Co., 93 S. C. 372, 76 S. E. 1096; Gulf, C. & S. F. Ey. Co. v. Johnson (Tex., 1899), 51 S. W. 531, 53 S. W. 374; Pierce v. Millay, 62 HI. 133; Smith V. Hestonville E., 92 Pa. St. 450; Kreis v. Wells, 1 E. D. Smith, 74; Glassey v. Hestonville, &c., E., 57 Pa. St. 172. In the following cases negligence of the parent did not. appear: Cohn T. W. E. Cody Sales Stable Co., 14 Ga. App. 234, 80 S. E. 661 (eight- year-old boy riding tricycle in street) ; Winters v. Kansas City Cable Ey. Co., 99 Mo. 509, 12 S. W. 652, 6 L. E. A. 536, 17 Am. St. E. 591 (where usual burgh, 243 Pa. 521, 90 A. 353 (cross- ing foot-bridge) ; Enright v. Pitts- burg Junction E. Co., 204 Pa. 543, 54 A. 317 (strolling on railroad tracks) ; Texas & P. Ey. Co. v. Ball, 96 Tex. 622, 75 S. W. 4, 73 S. W. 420 (crossing railroad track). 52. Addis v. Hess, 29 Pa. Super. Ct. 505 ; Weida v. Hanover Tp, 30 Pa. Super. Ct. 424; Distasio v. United Traction Co., 35 Pa. Super. Ct. 406. 53. Danna v. City of Monroe, 129 La. 138, 55 So. 741. 64. Brennan v. Minnesota, &c., B. Co., 130 Minn. 314, 153 N. W. 611, L. E. A. 1915F, 11. 55. Marbury Lumber Co. v. West- brook, 121 Ala. 179, 25 So. 914; Wueppeshal v. Connecticut Co., 87 Conn. 710, 89 A. 166; Ballard v. Smith (Ky.), 210 S. W. 489 (where child without knowledge of employer undertook dangerous work) ; Tidd v. Skinner ( N. Y.), 122 N. E. 247; Ken- ner v. Eader, 170 N. T. S. 957. Where a minor was induced hy his employer to engage in hazardous employment without the consent of his father the minor 's contributory negli- gence is no defence. Webb v. South- ern Ey. Co., 104 S. C. 89, 88 8. E. 297. 56. Woodward Iron Co. v. Curl, 153 Ala. 205, 44 So. 974 (child presumed § 723 PAEENT AND CHILD. Y68 void where not acknowledged or recorded as required by law,°° as where, under a statute requiring the acknowledgment of the par- ents, an adoption is defective where not acknowledged by the foster father who had previously adopted the child."' A contract of adoption will not be construed as an adoption.*^ In other States a judicial decree, upon due notice to kindred or their assent, is requisite,"' and an adoption by deed may have no effect on a court which had previously acquired custody of the V. Maxwell, 171 Iowa, 660, 153 N. W. without notice to the latter, is invalid. 331; Succession of Dupre, 116 La. 1090, 41 So. 324 (certificate of au- thority of justice who took acknowl- edgment lacking) ; Cook v. Bartlett, 179 Mass. 576, 61 N. E. 266 (certifi- cate of acknowledgment incorrect) ; Lindsley v. Patterson, 177 S. W. 826, L. E. A. 1915F, 680; J. M. Guffey Petroleum Co. v. Hooks, 47 Tex. Civ. App. 560, 106 S. W. 690 (failure of clerk to record as directed). 55. Cook V. Echols, — Ala. App. — , 80 So. 680; Lamb's Estate v. Morrow, 140 Iowa, 89, 117 N. W. 1118; J. M. Guffey Petroleum Co. v. Hooks, 47 Tex. Civ. App. 560, 106 8. W. 690. 56. Long V. Dufur, 58 Or. 162, 113 P. 59. 57. Eiley v. McKinney, 167 Iowa, 508, 149 N. W. 603. 58. Ballard v. Ward, 89 Penn. St. 358; Humphrey, Appellant, 137 Mass. 84, 346. The Louisiana statutes, as to adoption, do not mean to abridge the right of a natural tutor to his minor child. Succession of Forstall, 25 La. Ann. 430. The adoption by instrument may require the surviving parent to assent. Long v. Hewittt, 44 Iowa, 363. But the release of parental authority is not revocable at pleas- ure. Jones V. Cleghorn, 54 Ga. 9. Equity cannot dispense with strict statute compliance as to adoption. Long V. Hewitt, supra. Consent of an orphan asylum from which the child was taken was held essential in Ex parte Chambers, 80 Cal. 216. An order based upon the child's abandonment by the parent, Schiltz V. Koenitz, 86 Wis. 31; Ex parte Clark, 87 Cal. 638 ; In the Mat- ter of Charles B. Clements, 78 Mo. 352. But the putative father of an illegitimate child is not entitled to notice; and the assent of the child's guardian here sufSces. Gibson, Ap- pellant, 154 Mass. 378. Where adop- tion by written instrument prevails, an informal instrument might operate as a contract for specific performance. Healey v. Simpson, 113 Mo. 340. A statute making an adopted child legally the child of the parents by adoption is not unconstitutional unless interfering with vested rights. Sewall V. Roberts, 115 Mass. 262. Un- der the rule of comity, adoption in another State may be here recognized under suitable circumstances. Eoss V. Eoss, 129 Mass. 243; Van Matre V. Sankey, 148 111. 536. But not where the courts of that State had not juris- diction. Foster v. Waterman, 124 Mass. 592. General rules of descent are not necessarily or presumably changed by statutes of adoption; but on death of an adopted child his estates goes to his blood relations. Eeinders v. Koppelmann, 68 Mo. 482. As to petitions for adoption, see 137 Mass. 84, 346. That the child who permitted himself to be adopted as an heir knew the adopting parent to be of feeble or unsound mind, is not fraud sufficient to avoid the adoption. Brown et al. v. Brown, 101 Ind. 340. The rights conferred by adoption can- not be divested by the will of the adopting parent. Hosser 's Succession, 37 La. Ann. 839. As to adoption by 769 ADOPTED GHILDKEN. § 724 child.'* Where a petition for adoption is filed in the wrong county, and all parties are ther« represented and consent to a decree of adoption of a court, whereas the court in another county "where the child lived should have entertained the petition, the adopting parent is thereafter estopped to deny the validity of the decree, and the heirs of the adopting parent, in case of her death, are also estopped. The statute limiting jurisdiction to the court where the infant lives was designed for the benefit of the child and to prevent an adoption where the child might be ignorant of his rights and to furnish a record there where he might readily ascer- tain his status. The statute was not designed to cut down the rights of the child.'" The consent of the minor to adoption may be assumed.'^ § 724. Parties. The adopting parties may under the statutes usually be a hus- band and wife,'^ or persons of sound mind,°* not non-residents.'* The statutes sometimes require that both the adopting husband and his wife shall join in the adoption,'" in which event adoption cannot take place where one of them is insane." The guardian is not a necessary party." Adoption relates usually to minors and not to adult children,'* but adults may usually be adopted," and the word " child " in adoption statutes includes an adult."" A relative of the adopting a husband with or without his wife's 65. Jones v. Bean, 136 HI. App. consent, see Stanley v. Chandler, 53 545; Lindsley v. Patterson, 177 S. Vt. 619 ; Krug v. Davis, 87 Ind. 590. W. 826, L. R. A. 1915F, 680. 59. Murphree v. Hanson (Ala.), 72 66. Watts v. Dull, 184 111. 86, 56 So. 437. N. E. 303, 75 Am. St. Eep. 141. 60. Milligan v. McLaughlin (Neb.), 67. Shirley v. Grove, 51 Ind. App. 142 N. W. 675, 46 L. E. A. (N. S.) 17, 98 N. E. 874; Leonard v. Honis- 1134. fager, 43 Ind. App. 607, 88 N. E. 91. 61. Morrison v. Sessions' Estate, See EgofP v. Board of Children's 70 Mich. 297, 38 N. W. 249, 14 Am. Guardians of Madison County, 170 St. Eep. 500 (when for benefit of Ind. 238, 84 N. E. 151. child). 68. See Moore, Ee, 14 E. I. 38. 62. Markover v. Krauss, 132 Ind. 69. Succession of Caldwell, 114 La. 294, 31 N. E. 1047, 17 L. E. A. 806. 195, 38 So. 140, 108 Am. St. Ee-p. 63. In re Sharon's Estate (Cal.), 341; Collamore v. Learned, 171 Mass. 177 P. 283 (that adopting person is 99, 50 N. E. 518; Mellville v. Wick- ten years older than person adopted) ; ham, Tex. Civ. App., 169 S. W. 1123 ; Collamore v. Learned, 171 Mass. 99, contra, Succession of Pizzati, 141 La. 50 N. E. 518 (aged person may adopt 645, 75 So. 498. See Bartholow v. vigorous" adult). I>avies, 276 111. 505, 114 N. E. 1017. 64. Knight v. Gallaway, 42 Wash. 70. Sheffield v. Franklin, 151 Ala. 413 85 P. 21. *^^> ** ^°- ^'^; Markover v. Krauss, 49 § 725 PAKEKTT AND CHILD. 770 parent/^ or persons of different race from the adopting parents, may be adopted.'" § 725. Evidence. A presumption of adoption is not raised by the fact that children are living in the family of another,'^ and have taken his name/* hut after the lapse of time adoption may he presumed on evidence that the child had lived with and been treated as a child of the alleged adopting parent.'^ Where adoption records have been destroyed they may be proved by oral evidence/* but adoption cannot be shown by general repu- tation of adoption,'^ and a reference in a will to one as adopted ia not conclusive evidence of prior adoption." The identity of -the adopted child may be shown although not properly named." The burden of proof is on one attacking an adoption regularly made/" but one claiming rights of inheritance as an adopted child has the burden of proving the adoption.^^ One claiming adoption as against the objection of the natural parent must prove it by the clearest evidence.'^ 132 Ind. 294, 31 N. E. 1407, 17 L. E. A. 806 (child) ; In re Moran's Estate, 151 Mo. 555, 52 S. W. 377. 71. Billings v. Head, 184 Ind. 361, 111 N. E. 177 (grandchild). See Hodges' Heirs v. Kell, 125 La. 87, 51 So. 77 (adoption of illegitimate child of white man and negro woman). 72. In re Pepin 'a Estate, 53 Mont. 240, 163 P. 104. 73. In re Kuehn's Estate, 170 N. Y. S. 900 Henry v. Taylor, 16 S. D. 424, 9'3 N. W. 641. See Daniels v. Butler, 149 N. W. 264 (decree modi- fied on rehearing 150 N. W. 1081). See Wales v. Holden, 209 Mo. 552, 108 S. W. 89. See McColpin v. Mc- Colpin's Estate, Tex. Civ. App. 1903, 75 S. W. 824. 74. In re Huyck's Estate, 99 N. Y. S. 502, 49 Misc. 391. See Baker V. Payne, — Mo. App. — , 198 S. "W. 75 (evidence of name is admissible). 75. In re Herrick's Estate, 124 Minn. 85, 144 N. W. 455; Martin v. Martin, 250 Mo. 539, 157 S. W. 575; Coombs v. Cook, 35 Okla. 326, 1291 P. 698 (where records destroyed. See Eoberts v. Roberts,. 223 F. 775; 138 C. C. A. 102. See Seibert v. Seibert, 170 Iowa, 561, 153 ^T. "w. 160. See Heath v. Cuppel, 163 Wis. 62, 157 N. W. 527. 76. Kennedy v. Borah, 236 111. 24S, 80 N. E. 767; Coombs v. Cook, 35 Okla. 326, 129 P. 698. See, however, In re Sharon's Estate (Cal.), 177 P. 283 (general statements of persons who saw the records are insufScient). 77. Lane v. Saunders, — Tex. Civ. App. — , 201 S. W. 1018. 78. In re Phillips' Estate, 17 Pa. Super. Ct. 103. 79. Sayles v. Chrsitie, 187 111. 420, 58 N. E. 480. 80. Succession of Caldwell, 114 La. 195, 38 So. 140, 108 Am. St. Rep. 341. 81. In re McCombs' Estate (Cal.), 162 P. 897; Powell v. Ott (Tex. Civ. App.), 146 S. W. 1019. See Townsend V. Perry, 164 N. Y. S. 441, 177 App. Div. 415 (where adoption paper a for- gery). 82. Beach v. Bryan, 155 Mo. App. 33, 133 S. W. 635. 771 ABOPTED CHILDREN. § 726 § 726. Effect of Adoption. Adoption will confer on the adopting parents the right to the custody of the child, and in general places the adopted child in the same position as a natural child/^ giving the adopting parent the same rights over the property of the child as the natural father,** and the adopted child has only the rights which a natural child would have,*' leaving the adopting parent the right to dispose of his property by will as he pleases,*' and the adopting parent is bound to support him,*^ though the child be cared for by its natural parents.*' 83. Scott V. Scott (TJ. S. D. C. Idaho), 247 F. 976; In re Cozza, 163 Cal.-514, 126 Pa. 161. Religious training. Puiinton v. Jamrock, 195 Mass. 187, 80 N. E. 803. The parent of a child which had been adopted by another has no par- ental rights over such child, and can- not institute in the county court pro- ceedings for the protection or relief of the child from an improper guardian. State v. Kelley, 32 S. D. 526, 143 N. "W. 953; In re Knott (Tenn.), 197 S. W. 1097; State v. Yturria (Tex.), 204 S. W. 315, 189 S. W. 291; contra, White v. Eicheson (Tex. Civ. App.), 94 S. W. 203. See Villier V. Watson, 168 Ky. 631, 182 S. W. 869 (parental control need not necessarily pass with the adoption). See In re Puterbaugh's Estate (Pa.), 104 A. 601 (adoption does not make adopted child a child in fact) ; Bas- kette V. Streight, 106 Tenn. 549, 62 S. W. 142 (wife who did not join in pro- ceedings not entitled to custody on death of her husband who adopted child). See, however, Harle v. Harle (Tex.), 204 S. W. 317, 166 S. W. 674. 84. Burnes v. Burnes, 70 C. C. A. 357, 137 F. 781; Miller v. Miller, 123 Iowa, 165, 9-8 N. W. 631; Mundo v. McGraw, 25 Ky. Law Eep. 1644, 77 S. W. 936; Succession of Haley, 49 La. Ann 709, 32 So. 251; Ransom v. New York 0. & St. L. Ey. Co., 93 Ohio St. 233, 112 N. E. 585 (action for death of child). See Sarazin v. TTnion E. Co., 153 Mo. 479, 55 S. "V?. 82 (where adoption void adopting parent cannot recover for death). See In re Clements, 13 Mo. App. 592 (rights as affected by religious be- lief). 85. Wright v. Green (Ind. App.l, 119 N. E. 379 (adopting parent may dispose of property during his life notwithstanding contract of inherit- ance) ; Franklin v. Fairbanks, 99 Kan. 271, 161 P. 617; Eiley v. Day, 88 Kan. 503, 129 P. 524 (takes name of adopt- ing parents) ; Odenbreit v. TJtheim, 131 Minn. 56, 154 N. W. 741; Steele V. Steele, 161 Mo. 566, 61 S. W. 815. Civil law as gidde. Since the com- mon law did not recognize the adop- tion of a child as creating any legal rights, as did the civil law, in de- termining the nature of such rights the civil law may properly be looked to. Clark v. Clark, 76 N. H. 551, 85 A. 758; Kroff v. Amrhein (Ohio), 114 N. E. 367. See Wallace v. Noland, 246 111. 535 92 N. E. 956. 86. Malaney v. Cameron, 99 Kan. 70, 161 P. 1180; s. c, 9-8 Kan. 620, 159 P. 19; 99 Kan. 677, 163 P. 1172; Horton v. Troll, 183 Mo. App. 677, 167 S. W. 1081; Forsyth v. Heward (ISTev.), 170 P. 21; Masterson v. Har- ris, 107 Tex. 73 174 S. W. 570. 87. Mitchell v. Broivn, is Cal. App. 117, 132 P. 426 (adopting parent may contract with natural parent to sup- port child) ; Eyan v. Foreman, 181 111. App. 363 (judgment afEd., 363 111. 175, 104 N. E. 189 ; Beach v. Bryan, 155 Mo. App. 33, 133 S. W. 635. 88. A natural parent cannot recover from an adoptive parent for the care § 727 PAEENT AND CHILD. 772 Where a child has once been adopted the natural parents lose all rights in him, and their consent is not necessary to a subsequent adoption.** The act of adoption is to be liberally construed in favor of the child/" and the adoption decree is the sole source for determining its status.'^ A statute giving parents a right of action for death of children gives the adopting parents a right to sue for the death of an adopted child.®^ Under an inheritance tax exempting a " direct lineal descendant " neither an adopted child nor a child of an adopted person is exempt, but adopted children are exempt under a clause giving them all the rights and privileges of a legal heir.''' Where a woman takes a girl from an orphan asylum and treats her as her own child she has an insurable interest in the life of the child although she has never formally adopted her or been ap- pointed her guardian. It is not necessary that the insured shall be under any legal obligation to the beneficiary or that kinship shall exist between them. If the insured is under a moral obliga- tion to render care and assistance to the beneficiary in the time of the latter's need, then the latter has an insurable interest, other than a mere pecuniary one, in the life of the former."* § 727. Child's Rights of Inheritance from Parents. Adoption does not confer on the child any rights of inheritance unless expressly so provided in the statute or by the act of adop- tion,°° but the statute usually confers on the adopted child all the and support of a child while in hia S. W. 315, L. E. A. IfflSF, 1079. See own home and custody. McNemar v. note as to adopted child as child, etc. McNemar, 137 111. App. 504; Green- 94. Thomas v. National Benefit As- man v. Gillerman's Estate, 188 Mich. sooiatiou (N. J.), 86 Atl. 375, 46 74, 154 N. W. 82. L. E. A. (N. 8.) 779. 89. Order (Sup.), 103 N. T. S. 1133, 95. Moore v. Hoffman, Fed. Cas. 118 App. Div. 907, affd.; In re Mae- No. 9, 764a (2 Hays. & H. 173); In rae, 189 N. Y. 142, 81 N. E. 956 (reh. re Darling's Estate (Cal.), 159 P. den., 189 N. T. 538, 82 N. E. 1129), 606; Webb v. Mcintosh (Iowa), 159 (although adopting parents are dead). N. W. 637; Villier v. Watson, 168 90. Hockaday v. Lynn, 200 Mo. 456, Ky. 631, 182 S. W. 869; Leonard v. 98 S. W. 585. H. Weston Lumber Co., 65 So. 459; 91. Jones v. Leeds, 41 Ind. App. Fisher v. Browning, 107 Miss. 729, 164, 83 N. E. 526. In re Clements, 66 So. 132 ; Beaver v. Crump, 76 Miss. 12 Mo. App. 592. 34, 23 So. 432; Ferguson v. Herr, 64 92. Eansom v. New York, Chicago, Neb. 649, 90 N. W. 625, 94 N. W. etc., E. Co. (Ohio St.), 112 N. E. 542; Borsett v. Vought (N. J.), 71 586, L. E. A. 1916E, 704. So. 492; Townsend v. Perry, 164 N. 93. State v. Yturria (Tex.), 204 Y. S. 441, 177 App. Div. 415; Mer- 773 ADOPTED CHILDEEN. § 727 legal rights of inheritance of a natural child," including interests in remainder which would have passed to the heirs of the parent,*^ but where a husband adopts a child and the wife is not a party to the proceedings the child has no rights of inheritance from the wife." chant V. White, 79 N. Y. S. 1, 77 App. Div. 539, 12 N. Y. Ann. Cas. 233; In re CarroU's Estate, 219 Pa. 440, 68 A. 1038; appeal of Jaquay, Id.; Jordan v. Abney, 97 Tex. 296, 78 S. W. 486; PoweU v. Ott (Tex. Civ. App.), 146 S. W. 1019; Wall v. MeEnnery's Estate (Wash.), 178 P. 631. 96. Scott V. Scott (U. S. D. 0. Idaho), 247 F. 976; Appeal of Wood- ward, 81 Conn. 152, 70 A. 453 ; Eyan V. Foreman, 181 111. App. 262 (judg- ment affd., 262 lU. 175, 104 N. E. 189) ; Nickerson v. Hoover (Ind. App.), 115 N. E. 588; Eiley v. Day, 88 Kan. 503, 129 P. 524; Lanferman V. Vanzile, 150 Ky. 751, 150 S. W. 1008; Succession of Hawkins (La.), 71 So. 492 (as forced heir) ; Cun- ningham V. Lawson, 111 La. 1024, 36 So. 107; Virgin v. Marwick, 97 Me. 578, 55 A. 520; Stearns v. Allen, 183 Mass. 404, 67 N. E. 349, 97 Am. St. Eep. 441 (adopted child may inherit property of deceased son of adopting parents) ; TTltz v. Upham, 177 Mich. 351, 143 N. W. 66; In re Klapp's Estate (Mich.), 164 N. W. 381; Fisher v. Gardnier, 183 Mich. 660, 160 N. W. 358; In re Herriek's Es- tate, 124 Minn. 85, 144 N. W. 455; Adams v. Adams, 102 Miss. 259, 59 So. 84; In re Cupples' Estate (Mo.), 199 S. W. 556; Lindsley v. Patterson, 177 S. W. 826, L. R. A. 1915F, 680. Where husband and wife adopted children, and the husband died, leav- ing the bulk of his estate to the wife, •who subsequently died intestate, the adopted children took as her heirs. Horton v. Troll, 183 Mo. App. 677, 67 S. W. 1081; Thomas v. Malone, 142 Mo. App. 193, 126 8. W. 522 (adopted child has rights of child omitted from will) ; In re Pepins' Es- tate, 53 Mont. 240, 163 P. 104; Mar- tin V. Long, 53 Neb. 694, 74 N. W, 43; Clark v. Clark, 76 N. H. 551, 85 A. 758 (adopted child is an "heir in the descending line"); Von Beck v. Thomsen, 167 N. Y. 601, 60 N. E. 1121 (afEg. 60 N. Y. S. 1094, 44 App. Div. 373, except that adoption shall not defeat rights of remaindermen) ; Middleworth v. Ordway, 191 N. Y. 404, 84 N. E. 291; United States Trust Co. V. Hoyt, 135 N. Y. S. 849, 150 App. Div. 621; In re Webb's Estate, 250 Pa. 179, 95 A. 419; Balch V. Johnson, 106 Tenn. 249, 61 S. W. 289 (child may inherit from both husband and wife where both adopt heir); State v. Yturria (Tex.), 204 S. W. 315, 189 S. W. 291; Logan V. Lennix (Tex. Civ. App. 1905), 88 S. W. 364; White v. Holman, 25 Tex. Civ. App. 152, 60 8. W. 437; Evans v. Evans (Tex. Civ. App.), 186 S. W. 815; State v. Yturria (Tex. Civ. App.), 189 S. W. 291. See Patterson v. Carr (Iowa), 166 N. W. 449 (receipt in full of claims against adopting parent or his estate held to cover only claim for wages and not of inheritance). See Wester- man V. Schmidt, 80 Mo. App. 344 (under deed of adoption giving child "heir's" portion, adopted child can- not recover any portion of estate dis- posed of by will). Where the adopting parent is a life tenant only, the adopted child cannot inherit. Eureka Life Ins. Co. v. Geis, 121 Md. 196, 88 A. 158. 97. Adams v. Merrill, 85 N". E. 114. See Gilliam v. Guaranty Trust Co. of New York, 186 N. Y. 127, 78 N. E. 697 (under statute) . 98. In re Carroll's Estate, 219 Pa. 440, 68 A. 1038; Appeal of Jaquay, Id. § 728 PARENT AND CHILD. 774 A parol obligation by a person to adopt the child of another as his own, accompanied by a virtual, though not a statutory, adop- tion, and acted upon by both parties during the obligor's life, may be enforced, upon the death of the cbligor, by adjudging the child entitled as a child to the property of the obligor, who dies without disposing of his property by will. Though the death of the prom- isor may prevent a literal enforcement of the contract, yet equity considers that done which ought to have been done ; and as one of the consequences, if the act of adoption has been formally consum- mated, would be that the child would inherit as an heir of the adopter, equity will enforce the contract by decreeing that the child is entitled to the fruits of a legal adoption.*' A statute pro- hibiting suits against administrators within twelve months of their appointment does not render premature an action within that period by one claiming to be heir by adoption to enjoin sale of the real estate of the decedent.^ Where the adojrtion took place before the passage of a statute giving adopted children a right of inheritance the child may in- herit where the adopting parent died after the passage of such a statute,^ but adoption under an unconstitutional statute will have no effect.^ Heirship by adoption is not destroyed by a second adoption after the death of the adopting parent,* but if the second adoption takes place before the death of the first adopting parent the child loses all rights to inherit from him.'' Where a man adopts a child of a deceased child the adopted child inherits as a child only and not as both child and grandchild." Adoption will not cut off the child's right of inheritance from its natural parents unless so provided by statute.'' § 728. Child's Rights of Inheritance from Kindred of Parents. A statute making the adopted child the heir of the adopter does not entitle the child to inherit through him from the ancestors of 99. Crawford t. Wilson, 139 Ga. 100 N. W. 609, 11 Det. Leg. N. 338. 654, 78 S. B. 30, 44 L. E. A. (N. 8.) 4. Patterson v. Browning, 146 Ind. 773. 160, 44 N. E. 993; Russell v. Russell, 1. Bauman v. Kusian, 139 Ga. 654, 14 Ky. L. R. 236. 78 S. E. 30, 44 L. R. A. (N. S.) 773. 5. In re Klapp's Estate (Mich.), 2. Theobald v. Smith, 93 N. T. S. 164 N. W. 381. 1019, 103 App. Div. 200; Rosekrans 6. Billings v. Head, 184 Ind. 361, T. Rosekrans, 148 N. T. S. 954, 163 111 N. E. 177; Morgan v. Reel, 313 App. Div. 730. Pa. 81, 62 A. 353. 3. Albring v. Ward, 137 Mich. 352, 7. In re Pillsbury's Estate (Cal.), 775 ADOPTED CHILDEEN. § 728 the adopting parent/ and does not make the adopted child an heir of the kindred of those who adopted it." The adoption of a child is a contract into which the adopting parents enter with those having the lawful custody of the child, an agreement personal to themselves, and while they have a perfect right to bind or obligate themselves to make the child their heir, they are powerless to extend this right on his part to inherit from others. All inheritance laws are based or built upon natural ties of blood relationship, whereas an adopted child's right to inherit rests upon a contract, and hence only those parties to the contract are bound by it. iSo an adopted child will not inherit from the mother of his deceased foster parent,'" or from her brother,^' nor from the natural children of the adopting parent.^'' Under a statute giving the adopted child the status of a lawful child except that he shall not be entitled to inherit from the lineal or collateral kindred of his parents, an adopted child cannot in- herit from the natural children of his adopting parents. The court notes the general rule that an adopted child cannot inherit from the kindred of the pareoits, and holds that the exception in the statute cannot be held to enlarge its previous language." So an adopted child will not take bequests made to a predeceased natural son of the adopting parent." There is, however, a line of cases taking a more liberal view 166 P. 11 (where adoption took place 585; In re Burnett's Estate, 219 Pa. after death of natural parent) ; Head 599, 69 A. 74; Bhode Island Hospital V. Leak, — Ind. App. — , 111 N. E. Trust Co. v. Humphrey, 33 E. I. 318, 952; In re Klapp's Estate (Mich.), 79* A. 829; Batcheller-Durkee v. Bat- 164 N. W. 381; Clarkson v. Hatton, cheller, — E. I. — , 97 A. 378. 143 Mo. 47, 44 S. W. 761, 39 L. E. A. 10. Merritt v. Morton, 143 Ky. 133, 748, 65 Am. St. E. 635; In re Lan- 136 S. W. 133, 33 L. E. A. (N. S.) ders* Estate, 166 N. T. S. 1036, 100 139. Misc. 635 (half-sister of intestate may 11. Moore v. Moore, 35 Vt. 98. inherit though adopted by stranger). 12. Helms v. Elliott, 89 Tenn. 446, 8. Phillips V. McConica, 59 Ohio St. 14 S. W. 930, 10 L. E. A. 535. See 1, 51 N. E. 445, 69 Am. St. E. 753. also to the game effect Matre v. Contra, Cooley v. Powers, 63 Ind. Sankey, 148 111. 536, 36 N. B. 628, App. 59, 113 N. E. 382. 23 L. E. A. 665; Sunderland's Estate, 9. Wallace v. Noland, 246 111. 535, 60 la. 732, 13 N. W. 655; Meader v. -92 N. E. 956; Boaz v. Swinney, 79 Archer, 65 N. H. 214, 23 A. 521; Kan. 332, 99 P. 621 ; Merritt v. Mor- Phillips v. McConica, 59 Ohio St. 1, ton, 143 Ky. 133, 136 S. "W. 133; Van 51 N. E. 445, 69 Am. St. E. 753. Derlyn v. Mack, 137 Mich. 146, 100 13. Durkee v. Batcheller (E. I.) 97 N. W. 278, 1 Det. Leg. N. 207, 66 L. A. 378, L. E. A. 1916E, 545. E. A. 437, 109 Am. St. E. 669'; Hock- 14. Gammons v. Gammons, 212 aday v. Lynn, 300 Mo. 456, 98 S. W. Mass. 454, 99 N. E. 95. § 730 PAKENT AND CHILD. Y76 under statutes whioli in effect seem to place the adopted child in the status of a natural child, and in such cases the adopted child may inherit from the natural children of the adopting parent," or from the ancestors of the adopting parent.^' § 729, Child's Rights of Inheritance by Contract. The adopted child has generally no greater rights than a natural child, and therefore when the natural child may be disinherited the adopted child may be disinherited also. He may have rights under a contract if the adopting parents have made a contract at adoption performed by the child to give him their property at death, but such a contract cannot be made out of general talk by the adopting parents that the child should be treated as their own and that their property should go to him on their death, as this simply gives her the same rights as a natural child and was not intended as an irrevocable agreement.^'' A promise made by persons who took two infant orphans from an asylum, where they were well cared for, to treat them as in all respects their children, is not a promise to leave them anything by will. Where the children subsequently expressed a desire to return to the asylum, and the persons taking care of them then promised if they would remain to rear them and educate them in a proper manner and to leave them their property, this is not such an agreement to leave by will as equity will enforce by specific per- formance. It is not sufficiently definite and certain, it does not clearly appear how long the children were to remain and what they were to do, and it does not appear what they gave up by remaining. There is nothing to indicate that it would have been to the advantage of the children to leave, and it does not appear that the children changed their position in any way in reliance on the promise made.^^ § 730. Adoption as Revocation of Will of Adopting Parent. Statutes in many States provide that the birth of a child will cause a partial revocation of the will of the father previously ex- ecuted. Under these statutes it is commonly held that where the statute provides that an adopted child has all the rights of a 15. Stearns v. Allen, 183 Mass. 404, 17. Odenbreit v. TJtheim (Minn.), 67 N. E. 349, 97 Am. St. R. 441; Mc- 154 N. W. 741, L. E. A. 1916D, 421. Manus v. Lloyd (WaBh.), 183 Pac. 18. Banman v. Kusian, 164 Cal. 588, 9^. 129 P. 986, 44 L. E. A. (N. S.) 756. 16. Shick V. Howe, 137 la. 249, 114 N. W. 916, 14 L. E. A. (N. S.) 980. 777 ADOPTED CHILDKEN. § 731 natural child the adoption of a child will cause the partial revo- cation of a will as in case of the birth of a natural child,^* al- though the adoption statute was passed before the statute pro- viding for the partial revocation of a will.'" § 731. Rights of Inheritance by Parents. The adopting parents cannot inherit from the adopted child '^^ unless the statute so provides when they will inherit in prefer- ence to the natural parents."^ and the natural parents or natural heirs may inherit in preference to the heirs of the adoptive par- ents.^* The general statutes of inheritance are modified and set aside by statutes regulating the effect of adoption only so far as there is some specific provision in the statutes for adoption in- consistent with the application in such cases of the general in- heritance statutes. So where the adopting parents are deceased the natural parents may inherit in the absence of a statute chang- ing the general rule on the subject. A statute declaring the 19. Dreyer v. Schrick (Kan.), 185 P. 30; Bourne v. Downer, 184 N. T. App. Div. 476, 171 N. Y. Supp. 264; Glascott V. Bragg, 111 Wis. 605, 87 N. W. 853; In re Sandon's WiU, 123 Wis. 603, 101 N. W. 1089. Contra, Goldstein v. Hammell, 236 Pa. 305, 84 A. 772, 49 Pa. Super. Ct. 39; Evans V. Evans (Tex.), 186 S. W. 815. 20. Seott V. Scott, 247 Fed. 976; Buckley v. Frazier, 153 Mass. 525, 27 N. E. 768. 21. White V. Dotter, 73 Ark. 130, 83 S. W. 1052 (although parent makes gift to child believing she would in- herit) ; Coleman v. Swiek, 120 HI. App. 381 (judg. affd., Swick v. Cole- man, 218 ni. 33, 75 N. E. 807). Vnder an adoption statute provid- ing that the child may inherit from the parent the adopting parent can- not inherit from the child where not expressly so provided. Adopting statutes should be strictly construed and will not be construed to change the common law where not expressly so worded. Furthermore, it would be to the interest of designing persons to adopt children likely to inherit and then to bring about their death. Edwards v. Tearby, 168 N. C. 663, 85 S. E. 19, L. E. A. 1915E, 462. 22. In re Darling's Estate (Cal.), 159 P. 606; In re Jobson'a Estate, 164 Cal. 312, 128 P. 938; Swick v. Coleman, 218 Ul. 33, 75 N. E. 807, 120 HI. App. 381; Dunn v. Means, 48 Ind. App. 383, 95 N. E. 1015; Lanferman v. Vanzile, 150 Ky. 751, 150 S. W. 1008; In re Havsgord's Estate, 34 S. D. 131, 147 N. W. 378 ; Calhoun v. Bryant, 28 S. D. 266, 133 N. W. 266; Coleman v. Swick, 120 m. App. 381 (judg. affd., Swick v. Coleman, 218 HI. 33, 75 N. E. 807). See Paul v. Davis, 100 Ind. 422 (sta- tute making child the heir casts de- scent from child to adopting parent). 23. Eussell v. Jordan, 58 Colo. 445, 147 P. 693; Maker v. Clowser, 158 la. 156, 138 N. W. 837. Property inherited by an adopted child goes to it in fee, and on itg death descends according to the law of descent and distribution to its blood relatives to the exclusion of its adoptive parents. Fisher v. Brown- ing, 107 Miss. 729, 66 So. 132; Ed- wards V. Yearby, 168 N. C. 663, 85 S. E. 19, L. R. A. 1915E, 462. § 733 PARENT AND CHILD. 778 rights of inheritance existing between the parent and child by adoption shall be the same as exist between parent and child by- lawful birth does not alter the rights of the natural parent where- the adopting parent is dead.^* But the share under a will be- queathed to a predeceased adopted daughter goes to the heirs of the testator rather than to the child's natural parents.*" § 732. Inheritance by Children of Adopted Child. The childen of an adopted child may take by representation from the estate of the adopting parent,*" or on the death of the adopted child without issue his heirs may inherilr.*^ Our adoption statutes are properly construed having in view the ancient civil law/' and a statute declaring that the adopted child has the same right of inheritance between the parties to the adoption as a legiti- j mate child makes the adopted child the legal child of the adopter , and he stands as to the property of the adoptive parent in the same position as a child born in lawful wedlock. Furthermore, the relation of parent and child is a correlative one. Where there is a legal child there is a legal father. As a logical sequence the children of such legal child are the grandchildren of the legal father.** Therefore, the grandchild is the legal grandchild of the adopter and ais such he is entitled to stand in his parent's place and take by right of representation in her place where she dies before the adopting parent.'" § 733. Effect of Adoption on Inheritance by Widow of Adopting Parent. Where the statute provides that the adopted child shall inherit the widow of the adopting parent has only the same rights under the statute as if her husband left issue,'^ but a husband by a con- 24. Baker v. Clowser (la.), 138 N. 271, 161 P. 617; McMaster v. Fobes, , W. 837, 43 L. E. A. (N. S.) 1056. 226 Mass. 396, 115 N. E. 487. Contra, 25. Warner v. King, 267 111. 82, Kroff v. Amrhein (Ohio), 114 N. E. 107 N. E. 837. 267. 26. In re Herriek's Estate, 124 28. Markover v. Krauss, 132 Ind. Minn. 85, 144 N. W. 455; In re Cup- 29-4, 31 N. E. 1047, 17 L. E. A. 806. pies' Estate (Mo.), 199 S. W. 556; 29. Vidal v. Commagere, 13 La. Williams v. EoUins (Mo.), 195 S. W. Ann. 516. 1009; Bernero v. Goodwin, 267 Mo. 30. Batchelder v. Walworth (Vt.),. 427, 184 S. W. 74; KrofP v. Amrhein, 82 A. 7, 37 L. E. A. (N. S.) 849. 5 Ohio App. 37, — Ohio — , 114 N. 31. Atchison y. Atchison's Bx'rs,, E. 267; 7w re Webb's Estate, 250 Pa. 89 Ky. 488, 12 S. W. 942, 11 Ky. 179, 95 A. 419; Harle v. Harle, 166 Law, 705; Moran v. Moran, 151 Mo. S. W. 674; Batchelder v. Walworth, 558, 52 S. W. 378; In re McQuiston's. 85 Vt. 322, 82 A. 7. Estate, 238 Pa. 313, 86 A. 207, 27. Franklin t. Fairbanks, 99 Kan. 779 ADOPTED CHILDEEN. § 734 tract of adoption cannot impair the rights of his widow *^ unless the contract of adoption was made before the marriage when the rights of the widow are subject to the rights of inheritance of the adopted child.** § 734. Revocation of Adoption. Proceedings to abrogate the adoption may be brought in equity** and the jurisdiction to set aside an adoption by any other court is statutory purely.*' Adoption may be set aside on the ground of unsoundness of mind of the adopting parent and undue influence on petition begun by the next of kin of the adopting parent,*" for fraud on the court,*' that the court had no jurisdiction,** that it was made without notice to the parents,** or without the parent's consent.'"' Under the New York statute adoption may be abro- gated without the consent of a divorced parent.*^ The heirs may not have the right to rely on defects in the adoption although it might be void as against the parents.** The natural parent's rights cease on his death and his heirs cannot after his death carry on proceedings to revoke an adoption.** Where the record of the adoption is valid on its face irregulari- 32. McCann v. Daly, 168 HI. App. 37. Miller v. Higgins, 14 Cal. App. 287. 156, 111 P. 403. The adoption of a child is not equivalent to the birth of issue in determining the rights of a surviv- ing husband or wife. Clark v. Clark, 76 N. H. 551, 85 A. 758; Middle- worth V. Ordway, 98 N. Y. S. 10, 49 Misc. 74. 33. Lee v. Bermingham, 19? 111. App. 497. 34. McClure v. Williams (Ala.), 78 So. 853; In re Ziegler, 146 N. T. S. 881, 161 App. Div. 598 (affirming order [Sur.] 143 N. T. S. 562, 83 Misc. 346) ; In re Beers, 78 Wash. 576, 139 P. 629. 35. In re McDevitt, 16? N. T. S. 1032, 176 App. Div. 418. 36. Tucker v. Fisk, 154 Mass. 574, 28 N. E. 1051; McKay v. Kean, 167 Mass. 524, 46 N. E. 120 (jury may be refused); Phillips v. Chase, 203 Mass. 556, 89 N. E. 1049^; Kaymond T. Cooke, 226 Mass. 326, 115 N. E. 423; Stevens v. Halstead, 168 N. Y. S. 142, 181 App. Div. 198. 38. In re Johnston, 37 N. Y. S. 92, 76 Misc. 374. 39. Bell V. Krauss, 169 Cal. 387, 146 P. 874; In, re Moore, 132 N. Y. S. 249, 72 Misc. 644; In re Keeler's Adoption, 52 Pa. Super. Ct. 516. See Darlington's Adoption, d^ Pa. Super. Ct. 281. 40. Nelson v. Nelaon, 127 111. App. 422 (that consent given under mis- taken belief of approaching death is no ground for setting aside adoption) ; Coleman v. Coleman, 81 Ark. 7, 98 S. W. 733; In re Ziegler, 143 N. Y. 8. 562, 82 Misc. 346. 41. Matter of Ziegler, 50 N. Y. L. J. 99. 42. Appeal of Woodward, 81 Conn. 152, 70 A. 453; Jones v. Leeds, 41 Ind. App. 164, 83 N. E. 526 (heirs of wife cannot take advantage of defect in petition). 43. In re Young, 259 Pa. 573, 103 A. 344. § 735 PAEENT AND CHILD. 780 ties must be clearly proved to set it aside,** and it is not a ground for setting aside an adoption that the adopting parent's home has a bad moral atmosphere,*^ or that it was made for the purpose of preventing a contest over the will.** If an order of adoption is set aside the status of the child is the same as if no proceedings for adoption had been had and the child may be again adopted by the same parties.*' One may be estopped to claim irregularities in an adoption ** as where the guardian procures the adoption by transferring to the adopting parents the property of the ward, he will not be per- mitted to repudiate it later.*® Acquiescence for several years by a parent in the claim of adoption does not estop her from claiming the child on the ground that the order of adoption is invalid."" § 735. Conflict of Laws Relating to Adoption. An adoption valid where made will entitle the adopted child to inherit under the laws of another State where the property lies,°^ and the right of the adopted child to inherit depends on the law of the domicile of the adoptive parent."^ Adoption under a statute of a foreign State conferring rights of inheritance to land will not be sufficient to confer such rights in another State."' Adoption in one State will be recognized in another State of similar laws. The legality of the adoption is 44. Simpson v. Simpson, 29 Ohio Simpson, 29 Ohio Cir. Ct. E. 503; Cir. Ct. K. 503. Pinley v. Brown, 122 Tenn. 316, 123 45. Bedford v. Hamilton, 153 Ky. S. W. 359'; McOolpin v. MeColpin's 429, 155 S. "W. 1128. Estate (Tex. Civ. App. 1903), 77 S. 46. CoUamore V. Learned, 171 Mass. W. 238; James v. James, 35 Wash. 99', 50 N. E. 518. 655, 77 P. 1082; Appeal of Wood- 47. In re Trimm, 63 N. T. S. 952, -ward, 81 Conn. 152, 70 A. 453 (for- 30 Misc. 493, 7 N. Y. Ann. Cas. 293. eign adoption presumed valid). See 48. Barclay v. People, 132 HI. App. Fisher v. Davidson (Mo.), 195 S. "W. 338. 1024 (contract to adopt made in an- 49. Chubb v. Bradley, 58 Mich. 268, other State may be enforced in Mis- 25 N. W. 186. souri). 50. Ex parte Clarke, 87 Cal. 638, 52. Shick v. Howe, 137 la. 249, 114 25 P. 967. See In re Brown's Adop- N. W. 916. tion, 25 Pa. Super. Ct. 25? (21 years 58. Hood v. McGehee, 35 S. Ct. 718, delay will bar). 237 U. S. 611, 59 L. Ed. 1144 (aftg. 51. Appeal of Woodward, 81 Conn. decree, 19ff F. 989, 117 C. C. A. 664, 152, 70 A. 453; Shick v. Howe, 137 189 La. 205; Brown v. Finley, 157 la. 249, 114 N. W. 916 ; Brewer v. Ala. 424, 47 So. 577 ; Fisher v. Brown- Browning, 115 Miss. 358, 76 So. ing, 107 Miss. 729, 66 So. 132; Cal- 267, 519; Anderson v. French, 77 houn v. Bryant, 28 8. D. 266, 133 N. H. 509, 93 A. 1042; Simpson v. N. W. 266. T81 ADOPTED CHILDKEN. § 735 decided by the law of the State where the adoption took place but that relation or status having been established, what the adopted child s'hall inherit should be determined in the case of personalty by the lecc domicilii of the owner at the time of his decease and in case of real estate by the lex rei «toe.°* 54. Anderson v. Freneli, 77 N. H. 509, 93 A. 1048, L. E. A. 1916A, 660. § 73j[ Saseitt ai^^d child. .782 CHAPTEK V. EIGHTS OF PAEENT3. ■'■!-..' ?!iiCTiON 736. Foundation of Parental Eights. 737. Bight of Chastisement. 738. Parent's Eights to Child's Property. 739. Child's Duty to Care for Parents. § 736. Foundation of Parental Rights. The rights of parents result from their duties, teing given them by law partly to aid in the fulfilment of their obligations, and partly by way of recompense.'"' As they are bound to maintain and educate, the law has given them certain authority over their children, and in the support of that authority a right to the ex- ercise of such discipline as may be requisite for the discharge of their important trust. This is the true foundation of parental power."* The legal rights a parent has in respect to his children dur- ing minority are not absolute and may be forfeited by his own conduct. They may be modified or suspended against his will by action of the court; and they may, to a certain extent, be trans- ferred by agreement to another, but they cannot be destroyed as between himself and his child, except by statute."' § 737. Right of Chastisement. Some of the ancient nations carried the parental authority beyond all natural limits. The Persians, Egyptians, Greeks, Gauls, and Romans tolerated infanticide. Under the ancient Roman laws the father had the power of life and death over his children, on the principle that he who gave had also the power to take away;" and thus did law attribute to man those functions which belong only to the Supreme Being. This power of the father was toned down in subsequent constitutions, and in the time of the Emperor Hadrian the wiser maxim prevailed, " Patria potestas in pietate debet, non in atrocitate consistere ;" for which, reason a father '^^'^ banished who had killed his son. The Em- peror Constantine made the crime capital as to adult children; 6S. 1 Bl. Com. 452. 57. Appeal of Woodward, 81 Conn. 56, 2 Kent Com. 203. 152, 70 A. 453. 58. Cod. 8, 47, 10; 1 Bl. Com. 452. Y83 EIGHTS OF PAEENTS. § 737 and infanticide was under Valentinian and Valens punishable by death. Thus was the doctrine of paternal supremacy gradually reduced, though at the civil law never wholly abandoned."* The common law, far more discreet, gives the parent only a moderate degree of authority over his child's person, which au- thority relaxes as the child grows older. With the progress of refinement, parents have learned to enforce obedience by kind- ness rather than severity; and although the courts are reluctant to interfere in matters of family discipline, they will discounte- nance every species of cruelty which goes by the name of paren- tal rule. The common law gives the right of moderate correction of the child in a reasonable manner ; " for," it is said, " this is for the benefit of his education ; " *° and the mother has the same right as the f ather,°^ and in the absence of the father may call in a stranger to assist her who will not be liable if he only uses reasonable force.'^ But at the same time the parent must not exceed the bounds of moderation, and inflict cruel and merciless punishment; for if he do, he is liable to be punished by indictment."^ And he may be found guilty of manslaughter, or even murder, under gross cir- cumstances."* Thus, where a father put his child, a blind and helpless boy, in a cold and damp cellar, without fire, during several days in midwinter, giving as his only excuse that the boy was covered with vermin, he was rightly held subject to indictment 59. 1 Bl. Com. 452; 2 Kent Com. against a criminal prosecution, see 204 ; 1 Heinec. Antiq. Eom. Jur. 9 ; Dean v. The State, 89 Ala. 46, con- Dr. Taylor, Civ. Law, 403-406; For- cerning an authorized friend of the syth, Custody, 3. family. 60. Hutchinson v. Hutchinson, 124 61. Eowe v. Bugg, 117 la. 606, 91 Cal. 677, 57 P. 674 (evidence of the N". W. 903, 94 Am. St. E. 318 (mother conduct of the children immediately may delegate right to punish to an- preceding the punishment is sufficient other). and evidence of prior instances of 62. Vanmeter v. True, 10 Ky. Law, falsehoods is inadmissible) ; Horn- 320. beck v. State, 16 Ind. App. 484, 45 63. The law reluctantly interferes N. E. 620; 1 Hawk. P. C. 130; 1 Bl. criminally in such cases unless the pa- Com. 452. One in loco parentis, as a rental chastisement produces perma- stepfather may become, has the right nent injury or was maliciously in- of moderate correction. Gorman v. flicted. State v. Jones, 95 N. C. 588; State, 42 Tex. 221; Marshall v. Dean v. The State, 89 Ala. 46. But Beams, 32 Fla. 499'; State v. Alford, cf. Powell v. State, 67 Miss. 719. 68 N. C. 322. And see, as to the an- 64. 1 Buss. Crimes, Grea. ed. 490 ; alogous case of a schoolteacher, State Eegina v. Edwards, 8 Car. & P. 611; T. Burton, 45 Wis. 150; DanenhofEer 2 Bish. Crim. Law, § 714. v. State, 69 Ind. 295. So, too, as § 738 PAEENT AND CHILD. 784 and punishment for such wanton cruelty.'" So may a parent at the common law be indicted for exposure and neglect of his chil- dren ; and the heinousness of the offence depends in a great meas- ure upon the proof of simple negligence or wilful cruelty. The parent, too, who suffers his little child to starve to death) com- mits murder."' But the child's tenderness of age and helplessness are elements in such cases; and when children grow up they are presumed to provide for their urgent wants. § 738. Parent's Right to Child's Property. A parent of a minor child has no right to the possession or use of his property," or to make contracts concerning it,'* except by statute," and cannot bring suit on account of it,^' but where a parent occupies the child's property without any agreement to pay rent, no such agreement will be implied in the absence of circumstances showing that such payment was intended.''* The parent has no authority to settle suits or claims of the minor.'* 86. Fletcher v. People, 52 111. 395; Johnson v. State, 2 Humph. 283; Hinkle v. State, 127 Ind. 4TO. 68. 4 Bl. Com. 182, 183; 2 Bishop, Grim. Law, §§ 688, 712; Eegina v. "White, L. E. 1 C. C. 311. "Wilfully permitting a child's life to be endan- gered for want of proper food or med- ical treatment, legislation sometimes makes an indictable offence as against a parent or one in his stead. Cowley V. People, 83 N. Y. 464. 67. Gaines v. Kendall, 176 lU. 228, 52 N. E. 141; Paskewie v. East St. L. & By. Co., 281 lU. 385, 117 N. E. 1035, 206 111. App. 131; Hopkins v. Lee, 162 la. 165, 143 N. "W. 1002; Partee v. Partee, 114 Miss. 577, 75 So. 438, 114 Miss. 198, 74 So. 827 (where widowed mother has not been appointed guardian) ; State v. Staed, 143 Mo. 248, 45 8. W. 50; BeU v. Eice, 50 Neb. 547, 70 N. "W. 25; Fieken v. Emigrants' Industrial Sav. Bank, 67 N. T. S. 143, 33 Misc. 92; Guillou V. Campbell, 35 Pa. Super. Ct. 639; Pickthall v. Steinfeld, 12 Ariz. 230, 100 P. 779; Steinfeld v. Pickthall, Id.; Anderson v. Dodge, 143 N. T. 8. 132, 158 App. Div. 201 (father may lease ward's property by statute). 68. Fassitt v. 8eip, 24ff Pa. 576, 95 A. 273. 69. Darlington v. Turner, 202 TT. S. 195, 26 8. Ct. 630, 50 L. Ed. 992 (reversing 24 App. D. C. 573) ; "Var- nado V. Lewis, 113 La. 72, 36 So. 893. 70. Miles V. Boyden, 20 Mass. (3 Pick.) 213 (father cannot sue for child's legacy); Morris v. St. Louis, K. C. & N. E. Co., 58 Mo. 78. 71. "Wills V. "Wills, 34 Ind. 106; Aaron v. Bayon, 131 La. 228, 59 So. 130; Bell v. Dingwell, 91 Neb. 699, 136 N. "W. 1128. Where the child, while living with the mother on property in which he had an interest from his father's estate, earns and pays to ' the mother wages sufficient for his support, the mother must account to the child for rent. Keeney v. Henning, 58 N. J. Eq. 74, 42 A. 807. 72. Spring "Valley Coal Co. v. Don- aldson, 123 HI. App. 196; Leslie v. Proctor & Gamble Mfg. Co., 102 Kan. 785 EIGHTS OF PAKENTS. § 738 Th« law treats legacies, gifts, distributive shares, and the like, which may vest in a person during minority, as his own property ; and the modem practice is to require the appointment of a guardian in such cases, to manage the estate until the child comes of age.'* Under no pretext may the father appropriate such funds to himself, or use them to pay his own debts; and an adminis- trator or trustee who pays the child's money to the father as par- ent incurs a personal risk.'* The same may be said of the child's lands." And the parent's investment of his child's money for the tatter's benefit will be protected against all creditors of the former, who are chargeable with notice of the child's rights." While the parent may be called the natural guardian of the child, this is not such a guardianship as gives the right to control or manage the child's property; for here a chancery or probate appointment should be made; but equity would hold the parent to account like any intermeddler or holder of trust funds." So a widow as the natural guardian of her children is a trustee for them and cannot buy at a foreclosure sale of the homestead property and sell to a third party and thus cut off the rights of her children even though she uses her own money in buying at the foreclosure. By doing so she simply becomes subrogated to the rights of the mortgagee and does not change her relation of trustee to her minor children.'" The parent may, however, inherit as heir of the child, and even 159, 169 P. 193; Blake v. Coreoran, 75. As to conveying an easement, 211 Mass. 406, 97 N. E. 1002; Kirk see Farmer v. McDonald, 59 Ga. 509. V. Middlebrook, 201 Mo. 245, 100 8. A father, as such, cannot be jndici- W. 450 ; Hannula v. Duluth & I. B. ally empowered to sell his son 's land. E. Co., 130 Minn. 3, 153 N. W. 250 Guynn v. McCauley, 33 Ark. 97. See (effect of statute). English Act, 44 & 45 Vict., ch. 41, 73. Keeler v. Fassett, 21 Vt. 539; as to management of an infant's Jackson v. Combs, 7 Cow. 36; Miles v. lands. Boyden, 3 Pick. 213; Cowell v. Dag- 76. McLaurie v. Partlow, 53 111. gett, 97 Mass. 434; Kenningham v. 340. But as to payments of income MTliaughlin, 3 Monr. 30. And see by the debtor to the natural guar- Guardian and Ward, infra. But see dian, which income is applied to the Selden's Appeal, 31 Conn. 548. A fa- child's necessary use, see Southwest- ther who buys property for himself em B. v. Chapman, 46 Ga. 557. in his son's name must not perpetrate 77. See Bedford v. Bedford, 136 111. a fraud upon others. Eiehardson's 354; Guardian & Ward, Part IV, Case, L. E. 19 Eq. 588. post. 74. Perry v. Carmiehael, 95 111. 78. Sorrels v. Childers (Ark.), 195 519; Clark v. Smith, 13 8. C. 585. S. W. 1, L. B. A. 1917F, 430. 50 -§ 739 PAEEKT AND CHILD. 786 the misconduct of the father will not always exclude him from the benefits of his child's fortune/" § 739. Child's Duty to Care for Parents. " The duties of children to their parents," says Blackstone, " arise from a principle of natural justice and retribution. For to those who gave us existence we naturally owe subjection and obedience during our minority, and honor and reverence ever after; they who protected the weakness of our infancy are en- titled to our protection in the infirmity of their age ; they who by sustenance and education have enabled their offspring to prosper ought in return to be supported by that offspring in case they stand in need of assistance." *° Upon this principle rest what- ever duties are enjoined upon children to their parents by positive law. The Athenians compelled children to provide for their father when fallen into poverty.*^ And Kent, enforcing the same precept, cites several other historical precedents less to the purpose.'^ Perhaps this principle could not have been better expressed than in these words of Blackstone; for it is to be observed that the obligation, as a legal one, is somewhat vague and indefinite, extending little farther than the succor of parents in distress. Gratitude, certainly, is what all parents true to their trust have the right to expect; but whether it is due to those who were negligent and unfaithful to their offspring may admit at this day of much doubt. In other words, honor and reverence are justly awarded according to one's deserts. The child, when full grown, naturally marries and assumes parental liabilities of his own; and in the usual course of things adults, whether father or son, will prudently provide for their future as well as their present wants. Some have thought it the duty of fathers to leave property to their children at their death, — a principle somewhat at conflict with this right to lean upon their children for their own maintenance. Yet exceptional eases must occur where a father, faithful to his own obligations, is yet left, through misfortune, penniless in his old age; and here the voice of nature bids the children aid, comfort, and relieve. Municipal 79. Macphers. Inf. 251. See Allen rated) the sole heirs, see Pierce v. V. Coster, 1 Beav. 202. Pierce, 64 Wis. 73. As to the mother's claim for allow- 80. 1 Bl. Com. 453. ance for the child's support out of 81. 2 Potter's Antiq. 347, 351. lands devised to the child, who died, 82. 2 Kent Com. 207. leaving the parents (who had sepa- 787 EIGHTS OP PAEENTS. § 739 law quickens the child, and says, " If your parent, however, vagabond and worthless, becomes unable to maintain himself, the public shall not relieve him as a pauper; you, his children, being of sufficient means, must assume the burden." We speak not here of the mother, whose moral claims upon her children, if her own husband prove incapable, are much stronger; yet it must be admitted that the municipal law makes no great distinc- tion on her behalf. Thus may be explained what appears now a well-settled rule at the common law; namely, that there is no legal obligation resting upon a child to support a parent; that while the parent is bound to supply necessaries to an infant child, an adult child, in the absence of positive statute, or a legal contract on his own part, is not bound to supply necessaries to his aged parent.*' But statutes have been enacted, both in England and most parts of the Unitel States, to enforce this imperfect legal obligation, usually to the extent of relieving cities and towns from the sup- port of paupers. Such is the tenor of the English statutes of 43 Eliz. and 5 Geo. I., to which allusion has already been made, which declare, in effect, that the children, being of sufficient ability, of poor, old, lame, or impotent persons, not able to maintain them- selves, must relieve and maintain them.** Ingratitude, to use the word in a more general sense, the parent may punish still further, as other statutes prescribe, by disinheriting the undutiful children by will ;°° a punishment found by no means terrible in cases which arise under the statute of Elizabeth. The moral obligation of honor and reverence still remains clear and unquestioned, so far as parental faithfulness has earned it; doubtful in its more ex- tended application, yet always a favorite theme of the poet and dramatist, and never to be lightly esteemed among men.** The law does not imply, then, a promise from the child to pay 83. Eeeve, Dom. Eel. 284; Rex. v. Com. 208; and see Ex parte Hunt, 5 Munden, 1 Stra. 190; Edwards v. Cow. 284. Davis, 16 Johns. 281; Lebanon, v. 86. No one can read "King Lear" Griffin, 45 N. H. 558; Stone v. Stone, without recognizing the sublimity of 32 Conn. 142; Becker v. Gibson, 70 an unquestioning faith in this moral Ind. 239. duty. Kent (2 Com. 207) quotes the 84. 2 Kent Com. 208; Dierkes v. speech of Euryalus in the iEneid; but Philadelphia, 93 Pa. 270. See Smith the instance of pius Mneas himself is T. Lapeer County, 34 Mieh. 58; still stronger, perhaps the strongest Dierkes v. Phila., 93 Pa. St. 270. See to be found in the classics; devotion g 265. to I'is aged father rendering him more 85. N. Y. Eev. Sts., p. 614; 2 Kent illustrious in song than his heroic § 739 PAEENT AND CHILD. 788 for necessaries furnished without his request to an indigent parent ; and the natural obligation can only be enforced in the mode pointed out by statute. "■'* The promise of a child to pay for past ex- penditures in relief of an indigent parent is not binding in law.®* But for necessaries or other goods furnished to the parent, or for the parent's benefit, at a grown child's request, the latter is charge- able, as any one else would be.'* In some States it is now the duty of a child to support a parent unable to take care of himself,'^ but it has been held that there is no such legal duty.'* The care by children of aged and infirm parents is so clear a dictate of common humanity that such care raises no presump- tion of agreement for remuneration,'^ which may be recovered, however, on proof of express contract.'* Also the law will not imply a promise to repay sums voluntarily paid by one child to another for parental support." And it is held, further, that where one of several children renders support at the request of the others, they will be liable on an implied promise to contribute.'* achievements, and largely atoning, as until order made under statute) ; Bome would say, for the sin of con- jugal unfaithfulness. 87-88. Eex v. Munden, 1 Stra. 190; Edwards v. Davis, 16 Johns. 281; Dawson v. Dawson, 13 la. 513. See Johnson v. Ballard, 11 Eieh. 178. 89. Mills V. Wyman, 3 Pick. 207; Cook V. Bradley, 7 Conn. 57. It is otherwise by the Civil Code of Louisi- ana, art. 245. 90. Lebanon v. Griffin, 45 N. H. 558; Gordon v. Dix, 106 Mass. 305; Becker v. Gibson, 70 Ind. 339. Such a claim might now be enforced, in a suitable case, against the separate- estate of a married daughter, on the usual principles applicable to her con- tracts. 91. Cooley v. Stringfellow, 164 Ala. 460, 51 So. 321 ; Williams v. Williams (Ala.), 81 So. 41; Tobin v. Bruce (S. D.), 162 N. W. 933; Bruce v. Tobin, 245 U. S. 18, 38 S. Ct. 7, 62 L. Ed. (under statute). 92. Schwerdt v. Sehwerdt, 335 111. 386, 85 N. E. 613; In re Erickson (Kan.), 180 P. 263; Pinel v. Eapid By. System, 150 N. W. 897 (no duty Schwanz v. Wujek, 163 Mich. 492, 128 N. W. 731, 17 Det. Leg. N. 956; La- tour V. Guillory, 134 La. 332, 64 So. 130. 9S. Borum v. Bell, 132 Ala. 85, 31 So. 454; Maupin v. Gains, 135 Ark. 181, 188 S. W. 552; Cotter v. Cotter, 82 Conn. 331, 73 A. 903; Niehaus v. Cooper, 22 Ind. App. 610, 52 N. E. 761; Wright v. Senn's Estate, 85 Mich. 191, 48 N. W. 545; In re Skelly's Estate, 43 N. T. S. 964, 18 Misc. 719, 3 Gibbons, 176; In re De- laney'3 Estate, 58 N. T. S. 924, 27 Misc. 398; Nicholas v. Nicholas, 100 Va. 660, 42 S. E. 669, 866; Millis V. Thayer, 139 Wis. 480, 131 N. W. 124. See Duvall v. Duvall, 21 Ky. Law, 530, 54 S. W. 791. 94. Worth V. Daniel, 1 6a. App. 15, 57 S. E. 898; Falls v. Jones, 107 Mo. App. 357, 81 8. W. 455; Harris v. Orr, 46 W. Va. 261, 33 S. E. 257, 76 Am. St. E. 815. 95. Hough V. Comstock, 97 Mich. 11. 96. Stone v. Stone, 32 Conn. 142. And see Succession of Olivier, 18 La^ 789 EIGHTS OF PAKENTS. § 739 but a statute making it the duty of children to support parents will not authorize suit by a mother who is being supported by one child against another child to enforce contribution,'^ and gives the parent no right to enforce such duty by action unless ex- pressly so worded/^ and where such a statute exists an agree- by a child to support his parent is without consideration.'* Ann 594; Marsh v. Blackman, 50 98. Schwerdt v. Sehwerdt, 141 lU. Barb.. 329. App. 386 (judg. affd., 235 III. 386, 97. Duffy V. Yordi, 149 Cal. 140, 84 85 N. E. 613). P. 838, 4 L. E. A. 11S9, 117 Am. St. 99. Sehwerdt v. Schwerdt, 235 111. S. 125. 386, 8S K. E. 613. § 740 PARENT AND CHILD. 790 CHAPTER VI. PAEENTS' EIGHT OF CUSTODY. Section 740. Common-law Bule; English Doctrine. 741. Chancery Jurisdiction in Custody; Common Law Overruled. 742. English Bule; Statute. 743. American Rule. 744. "Welfare of Child. 745. Child's Own Wishes. 746. Custody under Divorce and other Statutes. 747. Parent 's Eight to Attend Funeral of Child. 748. Contracts Transferring Parental Eights. 749. Proceedings to Determine Custody; Prior Adjudication. 750. Suit for Harboring or Enticing Away One's Child; Abduction. etc. 751. Contests for Custody between Husband and Wife, etc. § 740. Common-Law Rule ; English Doctrine. The topic of parental custody is one of absorbing importance in England and America; and its principles have received the most ample discussion in the courts of both countries. The fundamental principle of the common law was that the father possessed the paramount right to the custody and control of his minor children, and to superintend their education and nurture.^ The mother, a8 such, had little or no authority in the premises.^ The Roman law enjoined upon children the duty of showing due reverence and respect to the mother, and punished any flagrant instance of the want of it; but beyond this it seems to have recognized no claim on her part.^ Indeed, the father is permitted by Anglo-Saxon policy to perpetuate his authority beyond his own life ; for he may constitute a testamentary guardian of his infant children.* In case there is no father, then the mother is entitled to the custody of the children; supposing, of course, the rights of no testamentary guradian intervene.'' She has, as natural guardian, a right to the custody of the person and care of the education of 1. Ex parte Hopkins, 3 P. Wms. 3. Cod. 8, tit. 47, § 4 ; Forsyth, Cus- 151; 2 Story, Eq. Juris., §§ 1341 tody, 5. 1342; 2 Kent Com. 205; Forsyth, Cus- 4. Stat. 12 Car. II. eh. 24, re-enacted tody, 10 ; People v. Olmstead, 27 Barb. in most of the United States. See 9, and cases cited; Ex parte Guardian and Ward, infra, § 814. McClellan, 1 Dowl. P. C. 34. 5. See Guardian and Ward, infra^ 2. See 1 Bl. Com. 453. T91 CUSTODY OF CHILD. § 741 her children ; " and this ia all countires," said Lord Hardwicke, " where the laws do not break in."' The priority of the surviving mother's right to custody is frequently a matter of statute r^ula- tion;' but her absolute right on remarriage is not so clearly recognized. Her claims, as we shall see hereafter, may conflict with those of a guardian. If the husband and father deserts his family, his wife becomes fairly entitled to the custody and con- trol of their infant children, at all events as against all third parties and while his desertion continues.* § 741. Chancery Jurisdiction in Custody; Common Law Over- ruled. Were these invariable rules, uncontrolled by the courts, un- changed by statute, this common-law doctrine of custody would be as simple of application as unjust. It is neither. And the courts of chancery, in assuming a liberal jurisdiction over the persons and estates of infants, soon made the claims of justice override all considerations of parental or rather paternal dominion, at the common law.® Thus Lord Thurlow, in a case where it appeared that the father's affairs were embarrassed, that he was an outlaw and resided abroad, that his son, an infant, had considerable es- tate, and that the mother lived apart from her husband and prin- cipally directed the child's education, restrained the father from interfering without the consent of two persons nominated for that purpose; and, with reference to the objection that the court had no jurisdiction, he added that he knew there was such a notion, but he was of opinion that the court had arms long enough to reach such a case and to prevent a father from prejudicing the health or future prospects of the child ; and he signified that he should act accordingly.^" But the leading case on this subject is that of Wellesley v. The Duke of Beaufort, which went on appeal from Lord Eldon to the House of Lords ; and in which the learned Lord Chancellor's judgment was unanimously affirmed.*^ e. Villareal v. Mellish, 3 Swanst. 87. See Hey ward v. Cuthbert, 4 De- 536; Forsyth, Custody, 11, 109; Z saus. 445. Kent Com. 506 ; People v. Wilcox, 22 8. Winslow v. State, 92 Ala. 78. Barb. 178 ; Oabom v. Allen 2 9. 2 Story, Eq. Juris., § 1341. And Dutch. 388. So where the father is see Butler v. Freeman, Ambl. 302. sentenced to transportation. Ex 10. Creuze v. Hunter, 2 Bro. C. C. parte Bailey, 6 Dowl. P. C. 311. 499, n.; 2 Cox, 242. And see Whit- 7. 2 & 3 Vict., ch. 54; Mass. Gen. field v. Hales, 12 Ves. 493. Sts. ch. 109, § 4; State t. Scott, 10 11. 2 Euss. 1; Wellesley v. Welles- Post. 274; Striplin v. Ware, 26 Ala. ley, 2 Bligh (N. S.), 124. § 741 PAEENT AND CHILD. 792 But the result of the English authorities is to establish the principle, independently of statutory provisions, that the Court of Chancery will interfere to disturb the paternal rights only in cases of a- father's gross misconduct ; such misconduet seeming, however, to be regarded with reference rather to the interests of the child than the moral delinquency of the parent. If the father has so conducted himself that it will not be for the benefit of the infants that they should be delivered to him, or if their being with him will injuriously affect their happiness, or if they cannot associate with him without moral contamination, or if, because they associate with him, other persons will shun their society, the court will award the custody to another.^^ It is held that chancery has nothing to do with the fact of the father's adultery, unless he brings the child into contact with the woman. ^* But unnatural crime is otherwise regarded.'^* Atheism, blasphemy, irreligion, call for interference, when the minds of young children may be thereby poisoned and corrupted ; although in matters of purely religious belief there is of course much difficulty in defining that degree of latitude which should be In this latter case children were taken from a father who was living in adnltery. In the course of his elabo- rate judgment in this case. Lord EI- don cited with approbation a dictum of Lord Macclesfield, to the eSect that where there is reasonable ground to believe that the children would not be properly treated, the court would in- terfere without waiting further, upon the principle that preventing justice was better than TpunisMng justice. Duke of Beaufort v. Berty, 1 P. Wms. 703, cited in Wellesley v. Duke of Beaufort, supra. The evidence showed that the con- duct of the father was of the most profligate and immoral description. It appeared that he had ill-treated his vrife, continued his adulterous connec- tion to the time of judicial proceed- ings, and in his letters to his young children had frequently encouraged them in habits of swearing and keep- ing low company. Lord Eedesdale, in the course of his opinion before the House of Lords, repudiated em- phatically the insinuation that pater- nal power is to be considered more than a trust. "Look at all the ele- mentary vnritings on the subject," he adds, "they say that the father is en- trusted with the care of his children; that he is entrusted with it for this reason, because it is supposed his na- tural affection would make him the most proper person to discharge th« trust." WeUesley v. Wellesley, 8 Bligh (N. S.), 141 (1828). 12. Anonymous, 11 E. L. & Eq. 281 ; s. c, 2 Sim. (N. S.) 54; Forsyth, Custody, 52; De Manneville v. De Masneville, 10 Ves. 52; Warde v. Warde, 2 Phil. 786. 13. Ball V. Ball, 2 Sim. 35; Lord Eldon, n. 6 to Lyons v. Blenkin, Jac. 254. The English Divorce Act indi- cates the peculiar views prevalent in that country as to adultery committed by a married man. Schouler, Hub. & Wife, § 506. 14. Anonymous, 11 E. L. & Eq. 281; s. c, 2 Sim. (N. S.) 34. 793 CUSTODY OF CHILD. § 742 allowed. Says Lord Eldon, " "With the religious tenets of either party I have nothing to do, except so far as the law of the country calls upon me to look on some religious opinions as dangerous to society.'"' Mere poverty or insolvency does not furnish an ade- quate ground for depriving the father of his children; not even though a fund is offered for their benefit, conditioned upon the surrender of their custody." Yet so solicitous is chancery for the welfare of its wards, that it seems indisposed to sacrifice their large pecuniary opportunities to the caprice of the natural pro- tector. Thus far has chancery carried its exception, that if prop- erty be settled upon an infant, upon condition that the father sur- renders his right to the custody of its person, and he, by acquies- cing for a time, and permitting the child to be educated in a manner conformably to the terms of the gift or bequest en- courages corresponding expectations, he will not be allowed to dis- appoint them afterwards by claiming possession of the infant. He has in such a case " waived his parental right." " § 742. English Rule; Statute. The English rule, up to the year 1839, was, therefore, that the father is entitled to the sole custody of his infant child ; con- trollable, in general, by the court only in case of very gross mis- conduct, injurious to the child. Such a state of things was un- just, since it took little account of the mother's claims or feelings in a matter which most deeply interested Jder. This finally led to the passage of statute 2 & 3 Vict., ch. 54, knovsm as Justice Tal" 15. Lyons v. Blenkin, Jac. 256. Inf. 152; Ex parte Glover, 4 Dowl. P. 16. Ex parte Hopkins, 3 P. Wms. C. 293; Forsyth, Custody, 17, 54; In 152; Colston v. Morris, Jae. 257, n. re Pulbrook, 11 Jur. 185; In re Fynn, 11 ; Maephers. Inf. 142, 143 ; For- 2 De G. 457 ; s. c, 12 Jur. 713 ; Eex v. syth, Custody, 37; Earl & Countess Greenhill, 4 Ad. & El. 624. Lord of Westmeath, Jae. 251, n. c. But Mansfield once said that the common- see Ex parte Montfort, 15 Ves. 445. law court is not bound to deliver an 17. Per Lord Hardwieke, Blake v. infant, when set free from illegal re- Leigh, Ambl. 307; Powell v. Cleaver, straint, over to anybody, nor to give 2 Bro. C. C. 499 ; Creuze v. Hunter, 2 it any privilege. Bex v. Delarel, 3 Cor, 242; Forsyth, Custody, 38, 53; Burr. 1436; 1 W. Bl. 409. But the Lyons v. Blenkin, Jae. 254, 262. later English rule is that where a The English courts of common law clear right to the custody is shown to likewise interfere in questions relat- exist in any one, the court has no ing to the custody of infants by writ choice, but must order the infant to of Jtabeas corpus, which, in general, be delivered up to him. Eex v. Isley, lies to bring up persons who are in 5 Ad. & El. 441. This jurisdiction is custody, and who are alleged to be less ample than that of the chancery subject to illegal restraint. Maephers. courts, to whose authority it must be § 743 PAEENT AND CHILD. 794 fourd's Act, which introduced important changes into the law of parental custody,^' but does not appear to have interfered with the father's right of custody further than to introduce new ele- ments and considerations under which that right is to be exer- cised. This act proceeds upon three grounds: First, it assumes and proceeds upon the existence of the paternal right. Secondly, it connects the paternal right with the marital duty and imposes the marital duty as the condition of recognizing the paternal right. Thirdly, the act regards the interest of the child.^' If the two considerations of marital duty to be observed towards the wife and of the interest of the child can be attained consistenly with the father's retaining the custody of the child, his common-law pater- nal right will not be disturbed; otherwise it may be.^" There is a later infants' custody act (36 & 37 Vict., ch. 12), under which the surrounding circumstances of a case will be still more sedulously regarded, against a father's own application for custody; and paternal right, the marital duty, and the interest of the child are all considered.^^ § 743. American Rule. In this country the doctrine is universal that the courts of justice may, in their sound discretion, and when the morals or safety or interests of the children strongly require it, withdraw their custody from the father and confer it upon the mother, or take the children from both parents and place the care and cus- tody of them elsewhere.** The father is, however, the natural guardian of his minor children and is entitled to their custody if a suitable person "^ in considered subservient. See Welles- old was given to the mother, her hus- ley V. Wellesley, 2 Bligh (N. S.), 136 band having deserted her. In re 142; Ex parte Skinner, 9 Moore, 278. Taylor, 4 Ch. D. 157. And see Brown, 18. Ex parte Woodward, 17 Jur. 56; Be, 13 Q. B. D. 614; Elderton, Ee, 25 Forsyth, Custody, 137. See Forsyth, Ch. D. 220. Grounds upon which a It. 139, 140. parent's right may be interfered with 19. Per Turner, V. C, in Ex parte considered, (1893) 2 Q. B. 232. Woodward, 17 E. L. & Eq. 77 ; 17 Jur. 22. 2 Kent Com. 205, and cases 56. cited; 1 Story, Eq. Juris., § 1341 20. n. See also Warde v. Warde, Eichards v. Collins, 45 N. J. Eq. 283. 2 Phil. 787. Stat. 3 & 4 Vict., ch. 90, 23. Bailey v. Gaston, 8 Ala. App. empowers chancery to assign the care 476, 62 So. 1017; Bell v. Krauss, 169 and custody of infants convicted of Cal. 387, 146 P. 874; Hernandez v. felony. Thomas, 50 Fla. 522, 39 So. 641, 2 L. 21. Under statute 36 & 37 Viet., ch. E. A. 203; Steele v. Hohenadel, 141 12, the custody of a child three years 111. App. 201 (judg. affd., Hohenadel 795 CUSTODY OF CHILD. § 743 preference to the mother." The legal right of the father to the custody of the child where the mother is insane is beyond question unless he is clearly unfit and the parents of the insane mother have no rights whatever to the custody."" Upon the death of the father th« mother is prima facie entitled to control the child,''* and so where the mother is abandoned by the father she has a right prior to a stranger."'' That a mother of V. Steele, 237 111. 229, 86 N. E. 71T; Hohenadel v. Steele, 141 111. App. 218 (judg. affd., 86 N. E. 717); In re Smith's Guardianship (la.), 158 N. W. 578 (father is entitled in death of mother who has been awarded cus- tody in divorce) ; Swarens v. Swarens, 78 Kan. 682, 97 P. 968; Mason v. Williams, 165 Ky. 331, 176 S. W. 1171; Ballihan v. Motschmann, 179 Ky. 180, 200 S. W. 358; Heitkamp V. Ragan (La.), 76 So. 247; Waters V. Gray (Mo. App.), 193 S. W. 33; Howell V. Solomon, 167 N. C. 588, 83 S. E. 609; Atkinson v. Downing, 175 N. C. 244, 95 S. E. 487; Titus V. McGloskey, 67 N. J. Eq. 709, 63 A. 244; Brackett v. Brackett, 77 N. H. 68, 87 A. 252; People v. Eubens, 92 N. T. S. 121; School Board Dist. No. 18, Garyin County, v. Thompson, 24 Okla. 1, 103 P. 578; Lowe v. Lowe, 53 Wash. 50, 101 P. 704; Adkins v. Hope Engineering & Sup- ply Co., 81 W. Va. 449, 94 S. E. 506; 2 Kent, Com. 205; People v. Mercein, 3 Hill, 399; People v. Olmstead, 27 Barb. 9; Miner v. Miner, 11 111. 43; Cole V. Cole, 23 Iowa, 433; Henson v. Walts, 40 Ind. 170; Rush v. Vanvac- ter, 9 W. Va. 600; State v. Baird, 6 C. E. Green, 384; Smith Pet'r, 13 111. 138. But see Gishwiler v. Dodez, 4 Ohio St. 615. Thus the father may commit the child to its grandmother. State V. Barney, 14 E. I. 62. 24. Donk Bros. Coal & Coke Co. v. Leavitt, 109 111. App. 385. See Sabine V. Stringer, 15 Mo. App. 586; People V. Sinclair, 95 N. Y. S. 861, 47 Misc. Sep. 230, 17 N. T. Ann. Cas. 37; In re Tierney, 112 N. T. S. 1039, 128 App. Div. 835 (where mother left her home without cause) ; People ex rel. Snell V. Snell, 137 N. Y. S. 193, 77 Misc. Rep. 538. Equity jurisdiction In re Tier- ney, 112 N. T. S. 1039, 128 App. Div. 835; Buseman v. Buseman (W. Va.), 98 S. E. 574; contra, Royal v. Royal, 167 Ala. 510, 52 So. 735 (where father lived outside the State; con- tra, Patterson v. Patterson, 86 Ark. 64, 109 S. W. 1168 (infant given to mother) ; contra, Cole v. Superior Court in and for San Joaquin County, 28 Cal. App. 1, 151 P. 169; contra, State V. Beslin, 19 Idaho, 185, 112 P. 1053; contra, Cain v. Garner, 169 Ky. 633, 185 S. W. 122 (under Iowa statute) ; contra, Edleson v. Edleson, 179 Ky. 300, 200 S. W. 625 (custody given to parent who is most fit) ; contra. Turner v. Turner, 93 Miss. 167, 46 So. 413; contra. People v. Workman, 157 N. T. S. 594, 94 Misc. Rep. 374 (under statute giving mother joint control). See Russell V. Russell, 20 Cal. App. 457, 129 P. 467 (child ten years old is not neces- sarily of " tender years." 25. Morin v. Morin, 66 Wash. 312, 119 Pac. 745, 37 L. R. A. (N. S.) 585. 26. In re Lindner's Estate, 13 Cal. App. 208, 109 P. 101 ; Dixon v. Dixon, 77 N. J. Eq. 313, 76 A. 1042 Heit- kamp V. Ragan (La.), 76 So. 247; Ex parte Smith, 197 Mo. App. 200, 193 S. W. 288 (surviving parent) ; Brackett v. Brackett, 77 N. H. 68, 87 A. 252 (while unmarried). 27. Waldron v. Childers, 104 Ark. 206, 148 S. W. 1030; In re Knoll § 744 PAKENT AND CHILD. V96 a twelve-year-old boy has emtraced the Mazadaznan religion and permits him to travel round with a priest of that religion wh© has written an immoral book does not show that he is neglected or that a guardian should' be appointed for him as a delinquent child where there is no evidence that the priest is teaching him immoral things or that the priest is himself an immoral man or that the boy has read the book.^* Under a statute authorizing the court to use its discretion in awarding the custody of a child ac- cording to its best interest the court has no right to take the child out of the custody of an aunt where it is well cared for and award it temporarily to its dissolute and immoral mother to see if the presence of the child will not reform the mother.'* The mere fact that th« mother of white children has married a man with negro blood in his veins does not justify the court in depriving her of their custody where the children were well cared for in proper surroundings even though the marriage has compelled them to mingle with persons of mixed blood. The ipere fact that the mother has married into a family lower in the social scale than that in which she was reared is no reason for depriving her of their custody, where the husband is not possessed of enough negro blood to render him a " colored person " within the meaning of the statute forbidding marriage with colored persons."" § 744. Welfare of Child. The tendency of our courts to-day is to consider more and more the rights of the children when opposed to the legal rights of the parents. This modem view is that the right to create children does not include the right to ill-treat them, that the child has a right to a fair start in life and the parent will not be allowed to keep control of him where unwilling or unable property to care for his offspring. In awarding custody of minors modem courts have often said that the welfare of the child is paramount, but this consideration will not suflSce to take children from parents who are decent and responsible, if able to furnish the necessities for their children, although the child's welfare and prospects in life might be bet- Guardianship, 167 Wis. 461, 167 N. 29. Be Lee (Cal.), 131 Pac. 749, W. 744. 45 L. R. A. (N. S.) 91. 28. Lindsay v. Lindsay, 257 III. 30. Moon v. Children's Home So- 328, 100 N. E. 892, 45 L. E. A. (N. ciety, 112 Va. 737, 72 S. E. 707, 38 S.) SfOS. L. B. A. (N. 8.) 418. 79T CUSTODY OF CHILD. § 744 tered thereby,*^ but custody may be taken away from parents manifestly unfit by the State standing in loco parentis in equity.*'' 31. In re Schwartz, 171 Cal. 633, 154 P. 304; Wilson v. MitcheU, 48 Colo. 454, 111 P. 21; Hemandei v. Thomas, 50 Fla. 522, 39 So. 641, 2 L. R. A. 203; State v. Beslin, 19 Idaho, 185, 112 P. 1053; Hohenadel v. Steele, 837 ni. 229, 86 N. E. 717; Wohlford ^. Bnrckhardt, 141 111. App. 321; People V. Hoxie, 175 111. App. S63; Cormack v. Marshall, 122 lU. App. 208^ Smiley v. Mcintosh, 129 Iowa, 337, 105 N. W. 577; Swarens T. Swarens, 78 Kan. 682, 97 P. 968; Buchanan v. Buchanan, 93 Kan. 613, 144 P. 840; Stapleton v. Poynter, 111 Ky. 264, 62 8. W. 730, 23 Ky. Law. Eep. 76, 53 L. R. A. 784, 98 Am. St. Rep. 411; State ex rel. Curtis T. Thompson, 117 La. 102, 41 So. 367; State ex rel. Kearney v. Steel, 121 La. 215, 46 So. 215; State v. Thomp- son, 117 La. 102, 41 So. 367; Com- monwealth V. Dee, 222 Mass. 184, 110 N. E. 287; Ex parte Smith (Mo. App.), 200 S. W. 681; Newsome v. Bunch, 142 N. C. 19, 56 S. E. 509; In re Wilson (N. J. Ch. 1903), 55 A. 160; Titus v. McGloskey, 67 N. J. Eq. 709, 63 A. 244; Giffin v. Gaseoigne, 60 N. J. Eq. 256, 47 A. 25; People v. Beaudoin, 110 N. T. S. 592, 126 App. Div. 505; Ex parte Livingston, 135 N. T. S. 328, 151 App. Div. 1, reversing order In re Livingston, 134 N. T. S. 148, 74 Misc. Bep. 494; Walker v. Finney (Tex. Civ. App.), 157 S. W. 948; Kirkland v. Matthews (Tex. Civ. App.), 174 S. W. 830; Jensen v. Jen- sen (Wis.), 170 N. W. 735; Case of Waldron, 13 Johns. 418; People v. Mereein, 3 Hill, 399; Bx parte Schumpert, 6 Rich. 344; Wood v. Wood, 3 Ala. 756; Gishwiler v. Dodez, 4 Ohio St. 615. And thus may the mother be preferred in a suitable case to the father. See Moore v. Moore, 66 Ga. 336. In the case of several children, and parents equally fit, a division of custody agreeble to the the several interests of the chil- dren may be made. Umlauf v. Um- lauf, 128 111. 378. 88. Wadleigh v. Newhall, 136 F. 941; Saunders v. Saunders, 166 Ala. 351, 52 So. 310; Dunn v. Christian (Ala.), 80 So. 870; Coulter v. Sypert, 78 Ark. 193, 95 S. W. 457; In re Lee, 165 Cal. 279, 131 P. 749; Moore v. Dozier, 128 Ga. 90, 57 S. E. 110; In re Brown, 117 111. App. 332; Swarens v. Swarens, 78 Kan. 682, 97 P. 968; Burke v. Crutcher, 4 Ky. Law Rep. 251; Smith v. Martin (Ky. Super. 1883), 4 Ky. Law Rep. 734; United State v. Green, 3 Mason, 382 ; Purinton v. Jamrock, 195 Mass. 187, 80 N. E. 802; State ex rel. Cave v. Tincher, 258 Mo. 1, 166 8. W. 1028 (even in the absence of statute) ; Home of the Friendless v. Berry, 79 Mo. App. 566; Waters v. Gray (Mo. App.), 193 S. W. 33; Wood v. Wood, 77 N. J. Eq. 593, 77 A. 91; In re Gustow, 220 N. Y. 373, 115 N. E. 995; In re Kirschner, 162 N. Y. S. 1126, 176 App. Div. 904 (cruelty to child by parents) ; People v. Beau- doin, 110 N. Y. S. 592, 126 App. Div. 505; In re Murtha, 455 N. Y. S. 47, 32 N. Y. Cr. R. 532 (desertion by father) ; Allison v. Rryan, 26 Okla. 520, 109 P. 9^4; Ex parte Adams (Okla.), 169 P. 1004; Commonwealth V. Wormser, 260 Pa. 44, 103 A. 500, 67 Pa. Super. Ct. 444. A father has no property right in a child and a claim, that he was de- prived of his property without due process of law by taking the child from him cannot be considered. Ken- ner v. Kenner, 139 Tenn. 700, 202 S. W. 723, 139 Tenn. 211, 201 S. W. 779 ; Kirkland v. Matthews (Tex. Civ. App.), 162 S. W. 375 (evidence is admissible that a member of the father 's family had tuberculosis) ; Cobb V. Works (Tex. Civ. App. 1910), § 744 PAEENT AND CHILD. Y98 There is a strong presumption, however, that the child's welfare will be best subserved in the care and control of its own parents and some of the earlier decisions seem to have treated the right of the father to the custody of the child as paramount but the more recent opinions regard the welfare of the child as paramount. The mere fact that a child is in the control of a parent who is utterly selfish will not alone cut off the right of the parent to that custody.^^ A statute permitting the court to give the custody of a child to one not the parent does not render the court the guardian of all the children in the State and the unfitness of the parent to care for the child must be positive and the mere fact that he is not sa well able to care for the child as another is not sufficient reason for giving the custody to that other. " However poor and un- able a father may be, if of good moral character and able to sup- port the child in his own style of life he cannot be deprived of that privilege by any stranger, however brilliant the advantage he may offer." ** In determining the custody of a child the highest good of the child must be the paramount consideration, and the court may well refuse to take a child from the custody of proper persons who are treating her kindly and give her to the mother who has remar- ried after separation to the father of the child who has never seen her and never contributed to her support and is only earning a small sum and living with his wife in two rooms.'" Although the 125 S. W. 349; Ward v. Ward, 34 husband's sister with -whom she had Tex. Civ. App. 104, 77 S. W. 829 left it nine years. Hoxaie t. Potter, (mother's reputation for chastity, 16 E. I. 374; In re Gates, 95 Cal. honesty and veracity may be shown) ; 461. Or to deliver the child to a Matthews v. Kirkland (Tex. Civ. non-resident mother under disfavoring App.), 186 S. W. 423; Kirby v. Mor- circumstances. Harris v. Harris ri3 (Tex. Civ. App.), 198 S. W. 995; (1894), N. C. And see Lally v. Pitz Peese v. Gellerman, 51 Tex. Civ. App. Henry, 85 Iowa, 49; In re Vance, 92 39, 110 S. W. 196 (where stepmother Cal. 195. See Kirby v. Morris (Tex. was a bad woman) ; Bedell V. Bedell, Civ. App.), 198 S. W. 995 (court 1 Johns. Ch. 604; Barrere v. Barrere, may require adoptive parents to al- 4 Johns. Ch. 187, 197; 2 Bishop, Mar. low child to visit relatives). & Div., 5th ed., § 532; Bx parte 33. Eisting v. Sparboe (Iowa), 162 Schumpert, 6 Eich. 344; People v. N. W. 592, L. E. A. 1917E, 318. Chegaray, 18 Wend. 637; Garner v. 34. Jamison v. Gilbert (Okla.),135 Gordon, 41 Ind. 92; Corrie v. Corrie, Pac. 342, 47 L. E. A. (N. S.) 1133. 42 Mich. 50?. Courts have refused 85. Me Pryse, 85 Kan. 556, 118 to allow a widowed mother, who re- Pac. 56, 41 L. E. A. (N. S.) 564. married, to take her child from the T99 CUSTODY OF CHILD. § 746 father, a widower, may have a right to the custody and care of his own child, still this will not ohlige the court to order its change from a home where it is well cared for to that of an aunt who does not particularly care to have it.*° § 745. Child's Own Wishes. It is sometimes a question, in proceedings relative to the custody of minors, how far the child's own wishes should be consulted. Where the object is simply that of custody, the rule, though not ai'bitrary, rests manifestly upon a principle elsewhere often ap- plied ; namely, that after a child has attained to years of discretion he may have, in case of controversy, a voice in the selection of his own custodian. The practice is to give the child the right to elect where he will go, if he be of proper age, and the issue is a doubtful one. If he be not of that age, and want of discretion would only expose him to dangers, the court must make an order for placing him in custody of the suitable person ; *' nor will the choice of the child in any case control the court's discretion,*' and the affection of the child for others will not suffice to deprive the parents of custody if fit.*" § 746. Custody under Divorce and other Statutes. Our divorce jurisprudence, being, until recently, quite different from that of England, further opportunity has been furnished for 36. Eisting v. Sparboe (Iowa), 162 P. & D. 221, sixteen years is now the N. W. 592, L. E. A. IfflTE, 318. limit adopted in English courts within 37. Proctor v. Bhoads (Ky. Super. which the child's own choice as to 1882), 4 Ky. Law Eep. 453; Eallihan custody may be regarded. See, as v. Motschmann, 179 Ky. 180, 200 S. to children too young. Bust v. Van- W. 358; Forsyth, Custody, 93, etc.; vacter, 9 W. Va. 600; Henson v. Bex V. Greenhill, 4 Ad. & El. 62. Walts, 40 Ind. 170. Nine or ten years of age has been 38. Marshall v. Beams, 32 Fla. 499 ; considered too young, yet mental People v. Watts, 122 N. T. 238. capacity appears the real test; and 39. Under Code, § 3193, providing the wishes of children less than four- that parents are the natural guardians teen have been regarded. See Anon., of their minor children, and equally 2 Vea. 274 ; Ex parte Hopkins, 3 P. entitled to their custody, a father has Wms. 152; Curtis v. Curtis, 5 Gray, a primary right to the guardianship 535; People v. Mercein, 8 Paige, 47; of his minor child as against all per- 95 Cal. 461; In re Goodenough, 19 son except the mother, so that the Wis. 274; Eegina v. Clarke, 7 El. & father of a child, whose mother is B. 186; State v. Bichardson, 40 N. dead, should be given its custody un- H. 272; Spears v. Snell, 74 N. C. less he is an unsuitable person, and 210; 33 Fla. 499. But according to has forfeited his right thereto by Eegina v. Howes, 3 Ell. & Ell. 332, misconduct. Brem v. Swander, isa and Mallinson v. Mallinson, L. E. 1 Iowa, 669, 132 N. W. 829. § 746 PARENT AND CHILD. 800 a departure from the common-law rules wLich favor the paternal right of custody. The same tribunal which hears the divorce cause has power to direct with which of the parties, or what third per- son, the children shall he, and direct as to their support.*' Like powers are now conferred upon the English matrimonial court by recent statutes ; *^ and the child's custody may he given to either parent or a third person ; generally to the innocent parent, though with due regard to the child's welfare ; and, in suitable cases, with a right of access to the parent or parents deprived of custody,** but a mother to whom minor children were awarded by a divorce decree cannot deprive the father of their custody after her death by will.*^ Where the custody of a child is the subject of chancery or divorce proceedings, the court will often be justified in making temporary arrangements for his custody.** And where there has been no order A child fourteen years of age can- not at will leave its father's home and choose another person as its guardian, in the absence of essential legal proceedings in the probate court. Grego v. Schneider (Tex. Civ. App.), 154 S. W. 361. 40. See post, Vol. II. 41. [1894] P., SSS. 42. Stats. 20 & 21 Vict., ch. 85, § 35; 22 & 23 Vict., ch. 61, § 4. See Ahrenfeldt v. Ahrenfeldt, 1 Hoff. Ch. 497; Spratt v. Spratt, 1 Swab. & T. 215; 2 Bishop, Mar. & Div., 5th ed., §§ 532, 544, and cases cited; Bedell V. Bedell, 1 Johns. Ch. 604; Chet- wynd V. Chetwynd, L. B. 1 P. & D. 39; Harding v. Harding, 22 Md. 337; Mallinson v. Mallinson, L. B. 1 P. & D. 221; McBride v. McBride, 1 Bush, 15; Goodrich v. Goodrich, 44 Ala. 670; Bush v. Bush, 37 Ind. 164; Harvey v. Lane, 66 Me. 536; Hill v. Hill, 49 Md. 450. The father is strongly preferred to the mother where he obtained divorce for her desertion. Carr v. Carr, 22 Qratt. 168. See In re Taylor, 4 Ch. D. 157. Even after divorce with a decree of custody to one parent, occasion may arise for separating the child, in the latter 's interest, from both parents as con- cerns custody. D 'Alton v. D 'Alton, 4 P. D. 87 ; In re Bort, 35 Kan. 308. Where the divorce court awarded cus- tody to the mother, and the mother on dying left the children to some relative who was appointed their guardian, the father must at least show his fitness to take custody. Bryan v. Lyon, 104 Md. 237; Murphy, Ex parte, 75 Ala. 409; Smith v. Bragg, 68 Ga. 650. But as against a stranger in blood, see McGlennan V. Margowski, 90 Ind. 150. Even though a divorce be obtained for the wife's bigamous adultery, the court's discretion in custody is not concluded in the husband's favor. Haskell v. Haskell, 152 Mass. 16; Luther v. Luther, 12 Col. 421. 43. In re Neff, 20 Wash. 652, S6 Pa. 383. 44. Hntson v. Townsend, 6 Bich. Eq. 249; Barnes v. Barnes, L. B. 1 P. & D. 463; Be Welch, 74 N. T. 299. Some American statutes concerning custody are worthy of notice. Follow- ing the temper of the times, the New York Legislature of 1860 enacted that "every married woman is hereby con- stituted and declared to be the joint guardian of her children, with her hus- 801 CUSTODY OF CHILD. § 747 of custody but a separation, tlie husband and father cannot in our later cases rely strongly upon his paramount right against the wife and mother, unless he is free from blame. ■'° In short, the welfare of the child becomes in modem practice the paramount consider- ation, nor are parental rights considered without due regard for parental duties. § 747. Parent's Right to Attend Funeral of Child. A father has no right to attend the funeral services of his child where he has been divorced and the custody of the child given to the mother where the funeral services are held from the house of the wife's father, and the father of the child cannot therefore main- tain action against the father-in-law for preventing him from at- band, with equal powers, rights, and duties in regard to them with her hus- band. " Such a statute, unexplained, might seem to do away altogether with the paramount claims of the husband. But the courts appeared disposed to regard the innovation with little favor; and the law was in 1862 re- pealed. People V. Brooks, 35 Barb. 85; People v. Boice, 39 Barb. 307. But cf. original Constitution of Kan- sas; also New York Act, 1893, ch. 175, declaring every married woman "joint guardian" with her husband. The State v. Angel, 42 Kan. 216. In the former ease a married woman, who lived apart from her husband, no misconduct on his part being shown, sought under the new statute to obtain custody of the children. An earlier statute of New York provides that if the parents live in a state of separa- tion, without being divorced, and without the fault of the wife, the courts may, on her application, award the custody of the child to the mother. 2 N. Y. Eev. Sts. .148; 2 Kent, Com. 205 n.; People v. Mercein, 3 Hill, 399. The discretion thus conferred upon the courts is a judicial one, however, and is to be exercised with due reference to the cause of separa- tion, and the conduct and character of the parties. And see People v. 51 Brooks, supra. See N. Y. Act 1862, ch. 172, § 6, which restrains the father from binding his child as apprentice, or parting with his control, or cre- ating a testamentary guardian with- out the mother 's written assent. Legis- lative provisions of a like tendency are frequently to be met with in other States. Thus in Massachusetts it is enacted that, pending divorce contro- versies, the respective rights of the parents shall, in the absence of mis- conduct, be regarded as equal, and that the happiness and welfare of the children shall determine the custody in which they shall be placed. Mass. Gen. Sts., ch. 107, § 37. And under a still more recent statute in New Jersey, the court is to a certain ex- tent deprived of its discretion in dis- posing of the custody of children whose parents are separated, but not divorced; for by thia statute the cus- tody of the children under seven years of age is transferred from the father to the mother. Bennet v. Ben- net, 2 Beasl. 114. As to modifying the order of custody after divorce, see Harvey v. Lane, 66 Me. 536. 45. Winslow v. The State, 92 Ala. 78; Giles v. Giles, 30 Neb. 624. Where a divorce court has jurisdic- tion of the parties, a common-law court disinclines to entertain a ques- § 748 PAKENT AND CHILD. 802 tending the funeral. At common law the duty of providing sepulture and of carrying to the grave the dead hody decently cov- ered was cast upon the person under whose roof the death took place ; for such a person could not keep the body unburied nor do anything which prevented Christian burial. There was no duty, however, to conduct a public funeral and is not now in this coun- try, and the father-in-law was not therefore required to invite anyone onto his premises simply to see the dead body or to have any sort of burial services for the public. A man's dwelling house is his castle, and no one has the right to enter except upon invitation express or implied. The fact that the father of the child was excluded from the funeral through malice of his father- in-law does not make the act actionable, as the control of one's dwelling is absolute, and therefore the intent with which thist control is exercised is wholly immaterial.*' § 748. Contracts Transferring Parental Rights. It is held in England that an agreement by which the father surrenders custody of his child is not binding; and that he is at liberty to revoke his consent afterwards, and obtain the child by a writ of habeas corpus." In this country there is a conflict of opinion as to whether a contract to surrender the custody of a child by the parent is valid, but even where such a contract is upheld the parent will not be held to have surrendered the custody to a stranger permanently unless it clearly appears that such was his intention. It is not enough that the person taking the custody understood that the parent had granted to him permanent custody ; but it must appear clear that there was a corresponding understanding on the part of the parent. The mere fact that the father permitted the grand- parents to have custody of the child for some years is not enough to show such transfer of custody.^' And a father's phrase in a letter of affection to relatives is not to be readily construed into a barrier of his natural rights ; " nor is his permissive custody to tion of custody upon habeas corpus. 47. Regina v. Smith, 16 E. L. & In re Gladys Morgan, 117 Mo. 249. Eq. 221. See Harding v. Harding, 144 HI. 48. Ire re MorhofE's Guardianship 589; Schroeder v. Filbert (189'4), (Cal.), 178 P. 294; Jamison v. Gil- Ncb. bert (OUa.), 135 Pac. 342, 47 L. E. 46. Eader v. DaTis (Iowa), 134 A. (N. S.) 1133. N. W. 849, 38 L. E. A. (N. S.) 131. 49. Scarritt, Be, 76 Mo. 565. 803 CUSTODY OF CHILD. § 748 othersj in the atsence of more unfavorable circumstances against tim, to be deemed irrevocable on his part.°° The general doctrine appears to us, on the whole, to be this: that public policy is against the permanent transfer of the natural rights of a parent ; and that such contracts are not to be specifically enforced, unless in the admitted exception of master and appren- tice, to constitute which relation requires, both in England and America, certain formalities; and excepting, too, in parts of the United States where the principles of legal adoption are part of the public policy.^^ American courts hold fast, nevertheless, to the true interests and welfare of the child. And hence the con- tract of a parent unfit to have custody of the child, and more especially of a shiftless widowed mother, which surrenders that child by formal instrument, fair in its terms, to a benevolent insti- tution, for the purpose of having the child brought up in a good family, or to some other suitable third party, has been so far upheld, where the institution or person intrusted has not failed in duty, that the child is suffered to remain where he was placed, for the reason that his welfare requires it, rather than be returned to the parent who seeks to recover custody once more.°^ Thus, there is a Massachusetts case where a child had been given up at its birth, the mother having then died, to its grandparents, who kept it for thirteen years, at their own expense, without any demand 50. Weir v. Marley, 99 Mo. 484; benefit of a grandparent's will. Bui- Kelly, Petitioner, 152 Mass. 432. But len, Ex parte, 28 Kan. 781. a fair contract of tranfer on a good The mother, being a suitable per- and executed consideration, ought not son, was allowed to recover custody, in to be set aside and custody restored Wishard v. Medaris, 34 Ind. 168. And unless the parent can show that a see Beller v. Jones, 22 Ark. 92. Mayne change will promote the child's wel- v. Baldwin, 1 Halat. Ch. 454; People fare. Cunningham v. Barnes, 37 W. v. Mercein, 8 Paige Ch. 67; s. c, 3 Va. 476. Hill, 408; State v. Libbey, 44 N. H. 51. See, as to adoption, supra, 321 ; State v. Scott, 30 N. H. 274, § 721; Legate v. Legate (1894), Tei. establish that a parol transfer of cus- tody is insuflScient. But this is rather 52. 2 Kent, Com. 205 ; State t. as regards the parent than third par- Barrett, 45 N. H. 15 ; Dumain v. ties, or the heirs or kindred of the Gwynne, 10 Allen, 270; Common- parent. Assent and transfer was, wealth V. St. John's Asylum, ff after long lapse of time, presumed Phila. 571; Bonnett v. Bonnett, 61 in Sword v. Keith, 31 Mich. 248. Iowa, 198. Where sisters of charity That a grandparent, by virtue of took a female child without legally transfer to him, may sue a third adopting, the child was transferred person for disturbing his custody, see afterwards in order to receive the Clark v. Bayer, 32 Ohio St. 299. § 748 PAEENT AND CHILD. 804 made by the father for its restoration; and under" these circtim- stances the court refused afterwards to change the custody."* And there are circumstances, where parental rights have been waived by the voluntary establishment of new relations permisr sively, under which the curt will, from similar regard for the child's welfare, refuse to disturb a custody voluntarily yielded, in favor of the parent who has long acquiesced in the transfer ; thus regarding the ties both of nature and association.^* And so, too, often, where a shiftless parent permits the child to be brought up by other relatives at their cost, and a change afterwards would be unsuitable.*'* It is the general American rule that agreements by parents for the transfer to others of the custody of their children are against public policy and are not binding on the parties,"* especially after 53. Pool T. Gott, 14 Law Eep. 269, before Shaw, C. J. And see In re Goodenough, 19 Wis. 274; Bently V. Terry, 59 Ga. 555. 54. Hossie v. Potter, 16 E. I. 374; Marshall v. Reams, 32 Pla. 499. 55. Drumb v. Keen, 47 Iowa, 435. If a father, after making an as- signment of the services or society of his minor child, has retaken the child into his own keeping, the assignee 's only remedy on his own behalf (if any he have) is by action on the con- tract. Famsworth v. Eiehardson, 35 Me. 267. And see Commonwealth v. McKeagy, 1 Ashm. 248; Lowry v. Button, Wright, 330. An adjudica- tion of the appropriate tribunal on the question of the custody of an infant child, brought up on habeas corpus, may be pleaded as res adjudi- cata. Merceiii v. People, 25 Wend. 64. The child's welfare and wishes are considered as before stated. 56. In re Galleher, 2 Cal. App. 364, 84 P. 352; Hernandez v. Thomas, 50 Fla. 522, 39 So. 641, 2 L. E. A. 203; McCarter v. McCarter, 10 6a. App. 754, 74 S. E. 308; Cormack T. Marshall, 122 111. App. 208; Wood T. Shaw, 92 Kan. 70, 139 P. 1165. Contract by which the widowed father of an infant surrendered his custody to a home and relinquished all rights over the infant was not con- trary to public policy, though it was subject to cancellation on its appear- ing to be for the best interests of the infant. Bedford v. Hamilton, 153 Ky. 429, 155 S. W. 1128; State ex rel. Kearney v. Steel, 121 La. 215, 46 So. 215; Smith v. Young, 136 Mo. App. 65, 117 S. W. 638; Brewer v. Cary, 148 Mo. 193, 127 S. W. 685; Dix. v. Martin, 171 Mo. App. 266, 157 S. W. 133; Marks v. Wooater (Mo. App.), 199 S. W. 446. Recovery for support. Gordon v. Wyness, 155 N. T. S. 162, 169 App. Div. 659; Long v. Smith, (Tex. Civ. App.), 162 8. W. 25; Wil- liford V. Biehards (Tex. Civ. App.), 169 S. W. 1139; Peese v. Gellerman, 51 Tex. Civ. App. 39, 110 S. W. 19'6. 'Even though, a gift of a child is invalid, in seeking to regain posses- sion of the child, the fact of the gift would place the parent in the atti- tude of invoking the powers of an equity court, and the fact that the parent has voluntarily surrendered the control of his child should be considered with other facts in deter- mining its best interests and the propriety of giving it again into his control. Peese v. Gellerman, 51 Tex. Civ. App. 39, 110 8. W. 196; contra. 805 CUSTODY OF CHILD. § 749 the children become of age." It has been, held, however, that a father may transfer to another the custody,"* except that where the statute gives the mother joint control tte father can make an agreement for custody only with the consent of the mother."' Where the mother dies, and the father tells the great-grandparent that lie might take and keep his infant child as long as he and his wife lived, or until the child reaches the age of twenty-one, and the latter does take the child and care for it and keep it until it reaches the age of three years before the father has asserted any claim to it, the father has lost his right of custody. The contract was sufficiently definite to be enforced. The contract cannot be said to be unilateral and without consideration."" Agreements be- tween the parents on separation as to the care of minor children valid between themselves wiU not be sustained to the detriment of the children.*^ 'Not can the father, under the common-law rule, divest himself, even by contract with the mother, of the custody of his children, though he allows them to remain with her for several years." A parent, if personally suitable, is not debarred from recovering custody of a young child who, without parental consent, has been bound out in some emergency by the public authorities."" And the right of the child's custodian under some parental con- tract is always strongest and most positive as against third parties."* § 749. Proceedings to Determine Custody; Prior Adjudication. Proceedings as to the custody of children are usually, in this country, conducted by writ of habeas corpiis. And the settled rule with us is that, while the court is bound to free the person from ■Wilkinson v. Lee, 138 Ga. 360, 75 8. 60. Wilkinson v. Lee, 138 Ga. 360, E. 477. 75 S. E. 477, 42 L. B. A. (N. S.) 57. Dittrioh v. Gobey, 119 Cal. 599, 1013. 51 P. 962. 61. Carpenter v. Carpenter, 149 58. An agreement whereby a father Mich. 138, 112 N. W. 748, 14 Det. makes a gift of his child to its grand- Leg. N. 366. parents, who take it as one of the 62. Torrington v. Norwich, 21 Conn, family, is not without consideration. 543; People v. Mereein, 3 Hill, 408, Eaves v. Fears, 131 Ga. 820, 64 8. E. And see Vansittart v. Vansittart, 4 269; Proctor v. Ehoads (Ky. Super. Kay & J. 62; Johnson v. Terry, 34 1882), 4 Ky. Law Eep. 453. Conn. 259. 59. Order, 110 N. T. S. 592, 126 63. Goodehild v. Foster, 51 Mich. App. Div. 505, affd.. People v. Bean- 599; Famham v. Pierce, 141 Mass. doin, 193 N. T. 611, 86 N. E. 1129 ; 203. See Briaster v. Compton, 68 Ala. Zink V. Milner, 39 Okla. 347, 135 299. p_ i_ 64. Jones v. Harmon, 27 Fla. 238. § 749 PARENT AND CHILD. 806 illegal restraint, it is not bound to decide wlio is entitled to the guardianship, or to deliver infants to the custody of any particular person ; hut this may he done whenever deemed proper. In other words, it is in the sound discretion of the court to alter the custody of the infants, or not.*' Under modern statutes, where there has been a voluntary separa- tion the wife may bring up the question of custody of the children by a petition filed in her own name.*° The petition should ask for the custody of the child and not merely access to it," and should be brought in the court where the parties reside.'^ Custody can- not be taken away from the parents by summary proceedings with- out notice.'* The burden of proof is ordinarily on those who dispute the fit- ness of the father to have the custody of his child,'" and it is pre- sumed tbat the father consents to the mother's care of minor chil- dren when not under his immediate control.''^ In such a proceeding a judgment in divorce may be considered if properly proved,'^ but a decree awarding custody of a child is necessarily temporary in character, and may always be modified on proof of change in circumstances.'^ The right to custody is 65. Commonwealth v. Addicka, 5 67. Eossell t. Eossell, 64 N. J. Eq. Binn. 520; Armstrong v. Stone, 9 21, 53 A. 821. Gratt. 102; Case of Waldron, 13 68. State ex rel. Norris v. Graham, Johns. 418; State v. Smith, 6 Me. 141 La. 73, 74 So. 635. 463; State ex rel. v. Paine, 4 Humph. 69. In re Knoll Guardianship, 167 523 ; Commonwealth v. Briggs, 16 Pick. Wis. 461, 167 N. W. 744. 203; Ward V. Eoper, 7 Humph. Ill; 70. Rallihan v. Motsehmann, 179 Foster V.Alston, 6 How. (Miss.) 406; Ky. 180, 200 S. W. 358; Giffin v. Stigall V. Turney, 2 Zabr. 286; Mer- Gascoigne, 60 N. J. Eq. 256, 47 A. cein V. People, 25 Wend. 64; State v. 25. King, 1 Ga. Dec. 93 ; State v. Banks, Where the father has given the 25 Ind. 495; Bennet v. Bennet, 2 child away and failed to provide for Beasl. 114; Ex parte Williams, 11 it, there is no presumption that he is Eieh. 452 ; State v. Eichardson, 40 N. best fitted to care for it. Peese v. H. 272; State v. Grisby, 38 Ark. 406. Gellerman, 51 Tex. Civ. App. 39, 110 The United States courts have no S. W. 196. inherent authority to determine ques- 71. Berger v. Charleston Consol. tions of the custody and guardian- By., Gas. & Electric Co., 93 S. C. 372, ship of a child; but local State courts 76 S. E. 1096. deal with such matters. Whether the 72. State v. Thompson, 117 La. diverse citizenship of contesting 102, 41 So. 367; Dixon v. Dixon, 76 parties may found such a jurisdic- N. J. Eq. 364, 74 A. 995. tion, qu. Burrus, Be, 136 U. S. 597. 73. Hohenadel v. Steele, 237 HI. 66. McGough V. McGough, 136 Ala. 229, 86 N. E. 717; Green v. Campbell, 170, 33 So. 860; Pearce v. Pearce, 136 35 W. Va. 69«. Ala. 188, 33 So. 883. S07 CUSTODY OF CHILD. § 750 not rendered res judicata hj a prior judgment as to it, the primary •consideration being the welfare of the child,'* but where habeas corpus is used not as a writ of liberty but as a means of obtaining the possession or control of one whose personal liberty is only in a remote and technical sense involved, as in case of an application for the custody of a child, then the doctrine of res adjvdicata applies to the case, and the court is bound by a finding previously made where the same issues were tried before.''' In habeas corpus proceedings to determine the custody of a child the decree in divorce awarding the custody of the child to one of the parties is conclusive except for causes arising since the decree, and where the decree awards the child to the father, with the privilege for the mother to visit it, and the father moves to Cuba and marries again and expresses the determination never to allow the child to see its mother again, this presents a case where the court may well in habeas corpus proceedings refuse to turn the child over from the niother to the father, where it appears the mother is a suitable person to rear the child.'" § 750. Suit for Harboring or Enticing Away One's Child ; Abduc- tion, etc. Every person who knowingly and designedly interrupts the rela- tion subsisting between parent and child, by procuring the child to depart from the parent's service, or by harboring and keeping him after he has quitted his home, commits a wrongful act, for which he is responsible to the parent. The offence, where force was not used, is known as enticement, and the rule applies to the relation of master and servant. In such cases, again, the parent sues on a principle analogous to that of the master ; namely, because of an alleged loss of service; or possibly in trespass vi et armis upon the more reasonable allegation of loss of the child's society," and 74. Pearce v. Pearce, 136 Ala. 188, 140; Selman v. Barnett, 4 6a. App. 33 So. 883. 375, 61 S. E. 501; Soper v. Crutcher, 75. Knapp v. Tolan, 26 N. D. 23, 29 Ky. Law, 1080, 96 S. "W. 907; 142 N. W. 915, 49 L. E. A. (N. S.) Arnold v. St. Louis & S. F. E. Co., 83. 100 Mo. App. 470, 74 S. W. 5. 76. Barlow v. Barlow, 141 Ga. 535, At common law the enticing of an 81 S. E. 433, 52 L. E. A. (N. S.) infant from the service of his parent 683. '"'as not an offence. State v. Eice, 77. Lumley v. Gye, 2 El. & B. 224; 76 N. C. 194; Wheeler v. Price, 21 E. ICirkpatrick v. Lockhart, 2 Brev. 276; I. 99, 41 A. 894 (action may be tres- 1 "Woodes, Lee. 451; Sargent v. Ma- pass); Howell v. Howell, 162 N. C. thewaon, 38 N. H. 54; 3 Bl. Com. 283, 78 S. E. 222. § 750 PARENT AND CHILD. 808 action will lie althougli the child renders no services to the parent/* and is not actually a member of the household at the time.''* The quo animo of the defendant in such suits is always material. To afford shelter is one thing; to encourage filial disobedience an- other. The mere employment of a runaway child does not amount t& enticement,*" The action must be maintained by the father where he is alive and living with the mother/^ but the action will lie on behalf of the mother after the father's death,*" or by a mother who was on divorce given the custody of the child.*' Where a father had divorced his wife and abandoned his minor child to her custody he is not a necessary party to proceedings by the mother to recover for the abduction of the child. But where the stepfather has re- ceived the child into his home and supported her he is a necessary party to the proceedings, as the suit is one for loss of services of the child and mental distress and loss of companionship. As the stepfather has assumed the liabilities of a parent the correspond- ing benefits follow, and the rights of the mother and stepfather in respect to the child are then equal before the law, and he must be joined in any action for loss of services of the child.** Under the early common law the only right of action afforded the parent for abduction of his child was in case of abduction of an heir in whose marriage he had valuable rights.*' Later the parent was allowed to sue on the ground that he had lost the services of his minor child.*" The modem American rule seems, however, to be that the parent may sue without alleging or proving A written notice to defendant, Rep. 519, 1 L. R. A. 362, 123 Am. plaintiff's son-in-law, that if lie har- St. E. 212. bored plaintiff's minor son plaintiff Under a statute providing that would claim Ms wages, held, a waiver "fathers and mothers shall jointly of the father 's right to sue defendant have the care and custody of the per- in tort for enticing his son away. son of their minor children," both Wolff V. Vannoy, 154 N. W. 215. parents are properly joined as plain- 78. Washburn v. Abram, 122 Ky. tiffs in a suit for entiement. Hrire 53, 90 S. W. 997, 28 Ky. Law, 985. v. Dean, 90 Me. 308, 38 A. 227. See contra, Kenney v. Baltimore & O. 82. Jones v. Tevis, 4 Litt 25 ; R. Co., 101 Md. 490, 61 A. 581, 1 L. Moore v. Christian, 56 Miss. 408. R. A. 205. 83. Magnuson v. O'Dea, 75 Wash. 79. Hare v. Dean, 90 Me. 308, 38 574, 135 P. 640. A. 227. 84. Magnuson v. O'Dea (Wash.), 80. Keane v. Boycott, 2 H. Bl. 511; 135 P. 640, 48 L. R. A. (N. S.) 327. Butterfield v. Ashley, 6 Gush. 249. 85. Bl. Com. 140. 81. Soper v. Igo, Walker & Co., 121 86. Whitboume v. Williams (1901), Ky. 550, 89 S. W. 538, 28 Ky. Law 2 K. B. 722. 809 CUSTODY OP CHILD. § 750 loss of services, which seems to be an honest result.*' The modern authorities have advanced and now the parent can recover damages for the unlawful taking away or concealment of a minor child, and is not limited to cases in which such child is the heir or eldest son nor to cases where the abduction is for immoral purposes nor are the damages limited to the fiction of " loss of services." The real ground of action is compensation for the expense and injury and punitive damages for the wrong done him in his affections and the destruction of his household. It can make no difference that the child at the time she was carried away was not in the immediate custody of the father where he was legally entitled to it or to have it adjudged by the court, and to take her out of it or secrete her was an injury for which he was entitled to damages.'" So the mere fact that the child has left the parent and gone to work for another is not enough without proof of solicitation.*" But where it appears that the defendant, knowing that the son had absconded from his father, boarded him in his family and allowed him to work on his farm as he pleased, doing this with the intention of aiding or encouraging, or with the knowledge that it aids and encourages the son to keep away from the father, he is liable to this action. ^ And to harbor or entice away an innocent child for immoral and corrupt purposes is an outrage criminally 87. Howell T. Howell (N. C), 78 77 N. C. 37. Where one's minor child S. E. 222; Kirkpatrick v. Lockport, is enticed away or harbored against 3 Brev. (S. C.) 276; Antony v. Nor- the father's will, and without justi- ton, 60 Kan. 341, 56 P. 529.> fication, the offender cannot, of 88. Howell V. Howell (N. C), 78 course, recover for the child's board. S. E. 222, 45 L. E. A. (N. S.) &67. Schnuckle v. Bierman, 89 111. 454. 89. Arnold v. St. Louis & S. F. B. But where one employs a runaway Co., 100 Mo. App. 470, 74 S. W. 5; child bona fide, without being guilty Cummins v. State, 36 Tex. Cr. B. of this offence, he may offset wages 398, 37 S. W. 435. due the father by the expense of 90. Sargent v. Mathewson, 38 N. H. actual support of the child. Hun- 54; Everett v. Sherfey, 1 la. 3'56. toon v. Hazelton, 20 N. H. 388. The Indictment lies under fit eireum- father may sue on the basis of a Con- stances for the offence of abduction tract for his absconding child's or enticement of one's minor child. wages; but he is put to his election. See Langham v. State, 55 Ala. 114; and the suit in tort against the em- State v. Bice, 76 N. C. 194 ; Queen v. ployer, for unlawfully enticing or har- Prince, L. E. 2 C. C. 154. The doc- boring his minor child, predludes the trine of enticement extends to the re- action of assumpsit as for wages lation of Master and Sejrvant, where earned. Thompson v. Howard, 31 it will be considered further. See Mich. 309; Grand Bapids R. v. pogt, Part "VT. c. 4; Noice v. Brown, Showers, 71 Ind. 451. Sfl N. J. L. 569; Morgan v. Smith, § 750 PAEENT -AND CHILD. 810 dealt 'witli besides." Enticemenit of a minor child may be the basis of a parental suit for damages where fraudulent representa- tion misled both child and parent.*^ A parent may maintain a libel in the admiralty for the wrong- ful abduction of the child, a minor, and carrying him beyond the seas.°^ Abduction or kidnapping is an offence similar to entice- ment, but implying the use of force rather than persuasion; and the parental remedies are similar. Where father and mother live apart, the mother's assent to the child's enlistment as a sailor may sometimes affect the father's remedies.'* But some parental rati- fication of the son's contract of enlistment should be shown, in order to defeat the parent's right of action ; and similar principles apply in the case of an army enlistment; there being, doubtless, ' cases where a parent may sue one at law for unlawfully harboring \ and concealing his young child, and so inducing him to enlist as a soldier.'' " There must be a reasonable limit to suits by the parent for loss of his child's services or society. Hence it is now well settled in this country that the parent cannot sue for enticing his child into a marriage against the parent's consent.** For a forcible abduc- tion, resulting in an imperfect marriage, and aggravated cases of a like nature, where, in fact, there is not a valid union, there might be a remedy. So the marriage statutes not unfrequently provide penalties to be meted out to offenders who aid and encourage infants in evading statutes requiring the consent of parents or guardians. But for drawing children of suitable age into a marriage which 91. People V. Marshall, 59 Cal. 386; ing himself as single, and the girl,, State V. Gordon, 46 N. J. L. 432. on discovering the falsehood, com- Whether force or persuasion was used mitted suicide. Lawyer v. Fritcher, in such abduction of a child does not 130 N. Y. 239. affect the parental right of action. 93. Steele v. Thacher, Ware, 91; Lawrence v. Spence, 99 N. T. 669. Plummer v. Webb, 4 Mason, 380. See But criminal prosecutions for cntic- Cutting v. Seabury, Sprague, 522; ing, etc., for purposes of prostitution Weeks v. Holmes, 13 Cush. 215. may fail, where it appears that the 94. Wodell v. Coggeshall, 3 Met. 89, child was lewd and went of her own And see Worcester v. Marchant, 14= free will, being of suitable age. Peo- Pick. 510. pie V. Plath, 100 N. T. 590 ; Jenkins 95. Caughey v. Smith, 47 N. T. 244.^ Y. The State, 15 Lea, 674, People v. 96. Jones v. Tevis, 4 Litt. 25; Her- Cummons, 56 Mich. 544. vey v. Moseley, 7 Gray, 479; Good- 92. As where a married man gained win v. Thompson, 2 Green (la.), 329. a female child's affections and in- But see Hills v. Hobert, 2 Boot, 48. duced the father's consent to their It is not "kidnapping" to carry marriage by fraudulently represent- away a girl of suitable age and then. 811 CtrSTODT OF CHILD. § 751 pleases themselves, the law affords no redress ; nor can it punish for the sake of parental discipline. And even though the match be unhappy, yet marriage must supersede the filial relation.*' Nor can a parent sue a school teacher, school trustees, or others, for excluding his children from school; the right of action, if any, being in the child," and there being no real loss of services conse- quent upon the affront. In short, the general rule is to place all actions by the parent on the sole ground of value of the lost services of the child, who is regarded as a servant for the purpose of the suit; not to punish, for the sake of the father, those who wrong the child." The damages should be measured by the nature of the injury which caused the parent's suffering, and are not to be affected by evidence of his language and conduct at the time.* § 751. Contests for Custody between Husband and Wife, etc. Where a father is entitled to the possession of his minor child as against all of the world except its mother, and where the father and mother axe equally entitled to its possession, he does not com- mit the crime of kidnapping by peaceably taking possession of it. And a person who assists the father under such circumstances is not guilty of the crime." It seems to be well settled that even a parent may be guilty of kidnapping his own child if he takes it away from the other parent to whom its custody has been awarded,^ but that where a parent has equal right to the custody with the other parent it is no crime marry her with her consent. Cochran 99. Hall v. Hollander, 4 B. & C. 660; V. State, 91 Ga. 763. Grinnell v. Wells, 7 M. & Gr. 1033; 97. Marrying a parent's son and Eager v. Grimwood, 1 Exch. 61. But heir was a civil injury at common law, see dictum in Stephenson v. Hall, 14 during the continuance of the mill- Barb. 222. tary tenures, for thereby the parent 1. Stowe v. Heywood, 89 Mass. 118. lost the value of his child's marriage; 2. State v. Dewey (la.), 136 N. W. but this injury ceased long ago, with 533, 40 L. B. A. (N. S.) 478. the right on which it was founded. A separated mother in possession See 3 Bl. Com. 140, and notes. But of a minor child cannot prosecute as see Lawyer v. Fritcher, 130 N. T. a kidnapper the father who gets the 239. child away. Burns v. Commonwealth, 98. Spear v. Cununings, 23 Pick. 129 Pa. 138. 524; Donahue v. Bichards, 38 Me. 3. Comm. v. Nickerson, 5 Allen 376; Boyd v. Blaisdell, 15 Ind. 73; (Mass.), 518; State v. Farrar, 41 N. Stephenson v. Hall, 14 Barb. 222. H. 53 ; State v. Ehodes, 29 Wash. 61, Contra, Eoe v. Deming, 21 Ohio St. 69 P. 389. 666. § 751 PARENT AND CHILD. 812 to take it awaj.* Those agents who assist the pareoai; to take away the child are usually in the same situation as the principal," but it is held in a recent case ' that although the wife might have a right to entice a child away from the father, still that she could not confer this right even on her second husband, the stepfather of the child, and that he might be held for kidnapping the child for the mother. The decision is supported by the rather inconclusive reasoning that any other construction of the statute would result in requiring the parent to first ascertain whether the party who took the child away is an agent of the other parent before having him arrested. A better reason for the rule is that the object of the statute is to protect the parents from the mental anguish of the disappearance of the child. A grandmother is justified in shooting her son-in-law when he is trying to break into her house to get his child and threatening to kill the defendant.^ And where the husband and wife are strug- gling over the possession of the child, and the husband shoots the wife, it is no defence that the child was being strangled in the sitruggle where the husband might have prevented this by ceasing the struggle.* 4. Hunt V. Hunt, 94 Ga. 257, 21 S. 216, 21 P. 1075; People v. Congdon, E. 515; State v. Breslin (Ida.), 113 77 Mieh. 351, 43 N. W. 986. P. 1053 ; Burns v. Comm., 129 Pa. 138, G. State v. Brandenberg (Mo.), 134 18 A. 756; State v. Angel, 42 Kan. S. W. 529, 32 L. E. A. (N. S.) 845. 216, 21 P. 1075; Biggs v. State, 13 7. State v. Perkins, 88 Conn. 360, Wyo. 94, 77 P. 901. 91 A. 265, L. E. A. 1915A, 73. 5. State V. Breslin (Ida.), 112 P. 8. State v. Thomson, 153 N. 0. 618, 1053; Burns v. Comm., 129 Pa. 138, m S. E. U54. 18 A. 756; State v. Angel, 42 Kan. 813 SEEVICES OF CHILD. § 752 CHAPTEE VII. PAEENt's eight to SEEVICES OF CHILD. Section 752. Bight of Father to Child 's Labor and Services. 753. Mother's Bights to Child's Services and Earnings. 754. Loss of Eight to Child's Services. 755. Parent's Bight of Action for Child's Labor. 756. Child's Eight of Compensation for Services to Parent. § 752. Right of Father to Child's Labor and Services. lUext to tlie right of custody of infants comes that of the value of their lahor and services. The father, says Blackstone, has the benefit of his children's lahor while they live with him and are maintained by him; and this is no more than he is entitled to from his apprentices or servants.* This right, like that of cus- tody, rests upon the parental duty of maintenance, and furnishes some compensation to the father for his own services rendered the child. Whether this right remains absolute in the father until the child has obtained full age is apparently a matter of doubt. It is certainly perfect while the period of the child's nurture con- tinues. But if this is all, it can be of little consequence, be- cause the child's labor and services are for that period of little or no value ; nor could compensation be thus afforded for the many years when the child was entirely helpless. All will admit that the father's right continues until the child reaches fourteen. And since tihe father's guardianship by nature extends through the full term of the child's minority ; since, too, he may by will place a testamentary guardian of his own choice over the infant ; since it is reasona'ble that the law should set off years of later usefulness against years of earlier helplessness; in short, since the age of majority is fixed as the period when an infant becomes legally emancipated from his father's control, — we may fairly assume that, all other things being equal, the father is actually entitled to the value of his child's labor and services until the latter becomes of age. This is the principle assumed by the elementary writers,^" 9. 1 Bl. Com. 453; 2 Kent Com. 10. 1 Bl. Com. 453; Eeeve, Dom. 193. Eel. 290. 752 PAEENT AND CHILD. 81-i and in most of tlie judicial decisions ;^^ though to such opinion Chancellor Kent appears to yield a somewhat doubtful assent.^* The father is in this country, as a general rule, entitled to the services of minor children^^ and to their wages if working for an- other ^* only during minority,^° and the minor child has no right to assign his wages to another so as to bar the parent of this right.^® We assume that the child lives at home or is supported by the parent. And if a child, being of full age, chooses to remain with the father, or is imbecile and needs to be harbored at home, the relation may continue so as to entitle the parent, either as such 11. Day V. Everett, 7 Mass. 145 Benson v. Bemington, Z Mass. 113 Plummer t. Webb, 4 Mason, 380 Gale V. Parrot, 1 N. H. 28; Nightin gale V. Withington, 15 Mass. 272 The Etna, Ware, 462. 12. 2 Kent Com. 193. 13. Williams v. Williams (Ala.), 81 So. 41; Kenure v. Erainerd & Arm- strong Co., 88 Conn. 265, 91 A. 185; Central of Georgia Ey. Co. v. Cheney, 20 Ga. App. 393, 93 S. E. 42; Crox- ton V. Foreman, 13 Ind. App. 442, 41 N. E. 838; Henninger v. MeGuire, 146 la. 270, 125 N. W. 180; Fuller T. Blair, 104 Me. 469, 72 A. 182; Dembinski's Case (Mass.), 120 N. E. 856; Pox V. Schumann, 191 Mich. 331, 158 N. W. 168; Gurley v. Southern Power Co., 172 N. C. 690, 90 S. E. 943 ; Young v. Sterling Leather Works (N. J.), 102 A. 395. The services of illegitimate children^ while living with and working for their father under the belief that they are legitimate are presumed gratuit- ous. Williams v. Halford, 73 S. C. 119, 53 S. E. 88 ; Adkins v. Hope En- gineering & Supply Co., 81 W. Va. 449, 94 S. E. 506; Taylor v. Chesa- peake & O. Ey. Co., 41 W. Va. 704, 24 8. E. 631. The parent's right to the child's wages is founded on the theory of compensation for the support of the child. Biggs v. St. Louis, I. M. & S. Ey. Co., 91 Ark. 122, 120 8. W. 970; Wheeler v. State, 51 Ind. App. 622, 100 N. E. 25; Bounds Bros. v. Mc- Daniel, 133 Ky. 669, 118 S. W. 956; Judgment (1906) 101 N. Y. S. 1119, 115 App. Div. 921, reversed. Doyle V. Carney, 190 N. Y. 386, 83 N. E. 37. 14. Kansas City, P. & G. E. Co. v. Moon, 66 Ark. 409, 50 8. W. 996; Mock V. Neffler (Ga.), 95 S. E. 673; Smith V. Smith, 112 Ga. 351, 37 S. E. 407; Eoyal v. Grant, 5 Ga. App. 643, 63 S. E. 708; Cox v. W. T. Adams & Co., 5 Ga. App. 296, 63 8. E. 60 (laborer's lien may be enforced by father for son's wages and his own) ; Benson v. Bemington, 2 Mass. 113; Eeeder v. Moore, 95 Mich. 594, 55 N. W. 436; Freeman v. Shaw, 173 Mich. 262, 139 N. W. 66; Winebremer v. Eberhardt, 137 Mo. App. 659, 119 S. W. 530; Crete Mut. Fire Ins. Co. v. Patz, 64 Neb. 676, 90 N. W. 546; Galligan v. Woonsocket St. Ey. Co., 27 E. I. 363, 62 A. 376; Kenner v. Kenner, 139 Tenn. 700, 202 S. W. 723, 139 Tenn. 211, 201 S. W. 779; Harper v. Utsey (Tex. Civ. App. 1906), 97 S. W. 508; Dean v. Ore. E. & Nav. Co., 44 Wash. 564, 87 P. 824. 15. Gilman v. C. W. Dart Hardware Co., 42 Mont. 96, 111 P. 550. IS. Southern Ey. Co. v. King Bros. & Co., 136 Ga. 173, 70 S. E. 1109; Greider v. Chicago & E. L Ey. Co., 140 HI. App. 246. 815 SERVICES OF CHILD. § 753 or on the principle of master and servant, to recover for the cliild's ■wages in the same manner.^^ Where a minor child is hired under agreement with the father, the hirer cannot discharge the child without notice to the parent and thereupon proceed to make a new contract of hire with the child, independently. The effect of such a new arrangement, if made without the knowledge and assent of the father, is that the latter, on learning of it, may either adopt the contract and claim what was due under it, or repudiate and claim the value of his child's services.^' If a minor child, without his father's consent, enters into a contract of hire with a third party, the father may promptly and peremptorily command the child to quit the service.^* So if the permitted service is illegally pursued, the father may terminate it."" § 753. Mother's Right to Child's Services and Earnings. At the common law a mother has no implied right to the ser- vices and earnings of her minor child ; not being bound as a father would be for the child's maintenance. 'Not have her rights or lia- hilities in these respects been usually regarded as equivalent to those of a father, even where she is the only surviving parent.^^ But the modem tendency in this country, if not in England, is cer- tainly to treat a mother's rights with considerable favor, especiallly if she be a widow; and in several late cases her title has been upheld in her minor child's clothing ^' or eamings,^^ or the control xof his services so far as concerns third persons ; it appearing that / 17. Brown v. Eamsay, 5 Dutch. 117; key, 133 111. 636; Snediker v. Ever- Overseers of Alexandria v. Overseera ingham, 3 Dutch. 143. See Clapp v. -of Bethlehem, 1 Harr. 122; im/ro, ch. Greene, 10 Met. 439; Campbell v. 5. Campbell, 3 Stockt. 268. 18. Sherlock v. Kimmel, 75 Mo. 77. 22. Burke v. Louisville E., 7 Heisk. 19. State v. Anderson, 104 N. C. 451. 771. Statutes forbidding the entice- 23. McBlmurray v. Turner, 86 Ga. ment of a servant from the master, 215; Hollingsworth v. Swedenborg, etc., have no application here. Ih. 49 Ind. 378, 19 Am. B. 687 ; Tague v. 20. As in Hunt v. Adams, 81 Me. Hayward, 25 Ind. 427; Horgan v. 356, where the employer persisted in Pacific Mills, 158 Mass. 402, 33 N. keeping the child at work on Sunday E. 581, 35 Am. St. B. 504; Scamell in violation of law. v. St. Louis Transit Co., 103 Mo. App. 21. 1 Bl. Com. 453; Commonwealth 504, 77 S. W. 1021; Franklin v. But- V. Murray, 4 Binn. 487; Riley v. cher, 144 Mo. App. 660, 129 S. W. Jamesson, 3 N. H. 29; People v. 428; Trinity Lumber Co. v. Conner, Mercein, 3 Hill, 400; Morris v. Low, — Tex. Civ. App. — , 187 S. W. 1023 4 Stew. & Port. 123; Pray v. Gor- (or in case of his imprisonment or tam, 31 Me. 240; McMahon v. San- desertion). § Y54 PARENT AHD CHILD. 816 she was the surviving parent, and that the child had no probate guardian and was not emancipated; and especially where she had borne the burden of the child's support/* Whether such title on_ her part could be so well enforced against the child's own consent, and to the extent of depriving the child of the fruits of his own toil, especially if the mother remarries, or does not support him, may be reasonably doubted,^^ but the evident tendency of the more recent decisions is to regard the mother as having the same rights as the father when she steps into his place for any reason. § 754. Loss of Right to Child's Services. But the duties and rights of parents are limited, mutually de- pendent, and in a great degree correspondent with one another. When the father has discharged himself of the obligation to support the child, or has obliged the child to support himself, and especially wherever he has been remiss in his own parental duties, our courts are reluctant to admit his right to the child's services. Under such circumstances, says a New Hampshire cor t, " there is no principle but that of slavery which continues his right to receive the earnings of his child's labor."^" It may appear that the parent has waived or released his right to the child's services,^^ but the mere fact that the child is re- 24. Horgan v. Pacific Mills, 158 tinue together, and ought always to Mass. 402. teminate together. See Benson v. 25. See Matthewson v. Perry, 37 Remington, 2 Mass. 113. Conn. 435; Hammond v. Corbett, 50 27. In re Kanter, 215 F. 276; Cul- N. H. 501 ; Hays v. Seward, 24 Ind. berson v. Alabama Const. Co., 127 Ga. 352; Holingsworth t. Swedenborg, 49 599, 56 S. E. 765, 9 L. R. A. (N. S.) Ind. 378; Lind v. SuUestadt, 21 Hun, 411; Orr v. Wahfeld Mfg. Co., 179 364. HI. App. 235; Story & Clark Piano 26. Thompson v. Chicago, M. & St. Co. v. Davy, — Ind. App. — , 119 N. P. Ry. Co., IT. S. C. C. Neb. 1900, E. 177; Gray v. Grimm, 157 Ky. 603, 104 F. 845 ; Southern Ry. Co. v. Flem- 163 8. W. 762 ; Zongker v. People 's ister, 120 Ga. 524, 48 S. E. 160 ; New- Union Mercantile Co., 110 Mo. App. ton V. Cooper, 13 Ga. App. 458, 79 S. 289, 90 S. W. 728. E. 356; Brisco v. Price, 275 111. 63, Waiver need 6e made iefore the 113 N. E. 881; P. J. Hunycutt & Co. services tegin but may take place V. Thompson, 159 N. C. 29, 74 S. E. while they are in progress. McMor- 628; Chaloux v. International Paper row v. McDowell, 116 Mo. App. 289, Co., 75 N. H. 281, 73 A. 301; Woods, 90 S. W. 728. J., in Jenness v. Emerson, 15 N. H. The pcur^nt's conduct while fhe 48i9. But in this case the principle services were m progress may be snf- peems to be assumed that the parent's ficient to show waiver which need not obligation to support and his right to take place when the services were receive wages commence together, con- comenced. McMorrow v. Dowell, 116 817 SERVICES OB" CHILD. § 754 ceiving his own wages is not enough to show waiver." Where the father permits the son to make his own contracts and collect and use his own wages they belong to the son who can recover them from the employer/" and where a minor has been paid in full for his services the parent cannot recover therefor from the em- ployer,*" but the parent's right to recover for the child's services is not lost by the fact that they were performed under a contract to which the parent was not a party.*^ The parent may voluntarily relinquish the right to his child's earnings, and may permit the child to earn for himself, receive his earnings, and appropriate them at pleasure. He is not obliged to claim such earnings for the benefit of his own creditors.^^ And if the parent authorize a third person to employ and pay the child, or even, as it is held, where he knows that the infant contracted on his own account and does not object, payment to the child and not to the parent will be a. sufficient discharge. Such an agree- ment may be in express terms, or it may be implied from cir- cumstances.** An American court favorably regards contracts of this nature, for the child's benefit, as they are in conformity with the spirit of free institutions.** An a New York statute provides that unless the parent notifies the minor's employer, Mo. App. 289, 90 8. W. 728; Liber- he may thus relinquish, provided this man v. Third Ave. E. Co., 54 N. T. be done in good faith. Wilson v. S. 574, 25 Mise. 296, 55 N. T. 8. 677, McMillan, 62 Ga. 16; Atwood v. Hol- 25 Mise. 704; 8weet v. Crane, 39 comb, 39 Conn. 270; Wambold v. Okla. 248, 134 P. 1112; Kuchenmeis- Vick, 50 "Wis. 456; Clemens v. Brill- ter V. Los Angeles & 8. L. E. Co. hart, 17 Neb. 335. But the executory (Utah), 172 P. 725 (where child was promise to relinquish is revocable, supporting himself) ; Jackson v. Jack- Stovall v. Johnson, 17 Ala. 14. eon, 96 Va. 165, 31 S. E. 78 ; Eiley v. 33. See Campbell v. Cooper, 34 N. Eiley, 38 W. Va. 283, 18 S. E. 569. H. 49; Jenness v. Emerson, 15 N. 28. Southern Cotton Oil Co. v. H. 489; Cloud v. Hamilton, 11 Duke3, 121 Ga. 787, 49 8. E. 788. Humph. 104; Armstrong v. MeDon- 29. Vance v. Calhoun, 77 Ark. 35, aid, 10 Barb. 300; Atkins v. Sher- 90 8. W. 619, 113 Am. St. E. Ill; bino, 58 Vt. 248. Penrose v. Baker, 171 S. W. 482; 34. Snediker v. Everingham, 3 Merrill V. Hussey, 101 Me. 439, 64 A. Dutch. 143; Cloud v. Hamilton, 11 819; Daniel f. Atlantic Coast Line Humph. 104. An infant may sue for E. Co., 86 8. E. 174. breach of contract for employment, 30. Ping Min. & Mill Co. v. Grant, even though the father might also 68 Kan. 732, 75 P. 1044. sue; relinquishment of the latter 's 31. Scamell v. St. Louis Transit Co., right being implied from circum- 103 Mo. App. 504, 77 S. W. 1021. stances. Benziger v. Miller, 50 Ala. 33. Even if the father is insolvent, 206. See post, ch. 5. 52 § 754 PAEENT AND CHILD. 818 within thirty days after the commenoement of service, that he claims the wages, payment to the minor will be good.'° The father may by his own delay and laches forfeit the right of action for 'his son's wages; as where the minor agrees to work at certain monthly wages to be paid to himself, and the father, knowing of the agreement, gives no notice of his objection, but waits until the work has been done and payment is made to the child, before making a demand.^^ But if the father has given seasonable notice of his dissent and demand to the stranger hiring his son, the fact that the son continues to work against his ex- press dissent, and that the stranger notified him to come and take his son away and he neglected to do so, will not preclude him from recovering the wages.^^ Nor does the fact that the son has agreed with his father to buy out his time for the remainder of his minority by paying a certain sum therefor, which has not been paid, prevent the father from recovering his wages pending the payment of euch sum.^' We may add that, whatever private arrangement may exist between the father and his son, unless it is brought to the em" ployer's notice, it cannot be set up to justify payment to the minor himself. As, for instance, where father and son had secretely agreed that the latter should have his own wages.^* And the pub- lication, by a parent, of a notice of his son's emancipation, more liberal to the latter than the actual agreement between them, will not, as against one who has no knowledge of the publication, ©stop the father from insisting on such right to his son's wages as the contract between them actually gives.*" But the usage of father and son may be alleged.*' A contract by the parent to assign the services of the child and to place him in the control of the assignee is not contrary to public policy if it is not prejudicial to the child's welfare.''^ One who employs the minor son of another cannot be liable to 35. Watson v. Kemp, 59 N. T. S. Penn. St. 232 ; Cloud v. Hamilton, 11 142, 42 App. Div. 373; Langer v. Humph. 104; Whiting v. Earle, 3 Kaufman, 157 N. T. S. 835, 94 Misc. Pick. 201. 216; N. T. Laws, 1850, p. 579'; Her- 39. Kauffelt v. Moderwell, 21 Penn. rick V. Pritcher, 47 Barb. 589. And St. 222. see Everett v. Sherfey, 1 la. 356. 40. Mason v. Hutchins, 33 Vt. 780. 3G. Smith v. Smith, 30 Conn. 111. 41. Perlinau v. Phelps, 35 Vt. 478 ; 37. 16. Canovar v. Cooper, 3 Barb. 115. 38. Cahill v. Patterson, 30 Vt. 592. 42. Anderson v. Young, 54 S. C. And see KaufFelt v. Moderwell, 21 388, 32 S. E. 448, 44 L. B. A. 277. 819 SERVICES OF CHILD. § 754 the father aa for breach of contract, because of such minor's de- linquencies. Hence it is held, that where the father contracts that his minor son shall work for a specified time and price, and the son leaves his employer before the expiration of the time, though against his father's will, the father can only recover for the time of actual employment, although the employer assented to the departure ;** and the child's breach of specified conditions of notice before quitting bars the father's recovery of wages ac- cordingly.** But where the minor is hired to serve for a specified time, the employer who contracted with the parent should notify the latter of any failure of duty on the child's part before dis- charging the child, nor should he discharge without notice to the parent.*" Where a father and his minor son agree that the latter shall work for B. until his majority, and be paid the wages, this does not debar the father from suing B. for a breach of the agreement and recovering the expense of finding other employ- ment for the son.*' If a father place his minor son to work for another, for no illegal purpose, and without knowledge and assent as to his illegal employment in fact, he is still entitled to compensation for his eon's services; as where a son is employed by another in unlaw- fully selling intoxicating liquors, the father being ignorant of the nature and character of the services while they were being per- formed.*' Wages due a minor seaman belong to his father, and the latter may sue for them in admiralty.*' And payment of such wages to the son, while he was known by his employer to have been less than twenty-one at the time of making the contract, furnishes no defence to an action by the father, who had no knowledge 43. Hennessy v. Stewart, 31 Vt. notice to the parent. Sherlock v. 486. See Schoenberg v. Voight, 36 Kimmel, 75 Mo. 77. Mich. 310, where, the employment be- 46. Dickinson v. Talmage, 138 Mass. ing quantum meruit, the employer 249. As to the effect of mere notice could show that the son had em- by the father to the employer, that bezzled more than his services were he shall exact payment, see Williams worth. But cf. The Lucy Anne, 3 v. Williams, 132 Mass. 304. Ware, 253. 47. Emery v. Kempton, 2 Gray, 257. 44. Tennessee Man. Co. v. James, 91 48. Gifford v. KoUock, 3 Ware, 45. Tenn. 154. As to the effect of desertion by the 45. Day v. Oglesby, 53 Gfa. 646. child after attaining majority, see Semble, a child may be discharged Coffin v. Shaw, 3 Ware, 82. for suitable reason without giving § 755 PARENT AND CHILD, 820 of his hiring until after the wages were earned.** Nor is the father, in such case, affected hy the terms of the shipping articles, because it is an express contract which, as against him, the son has no right to make; he can claim under a quantum meruit for the value of the services. But mercantile custom may determine certain questions as to the remedy."" As to enlistments in the army or navy of the United States, the laws contemplate that the contract is personal and for the benefit of the infant; and pay, bounties, and prize-money in gen- eral, though earned under State laws, are held to belong to the eon, and not to the father."^ The parent may lose the right to lie child's services by operation of law as where the child marries his new obligations to his vrife are considered superior to those to his parents and the parenta have no further rights in his wages,°^ and the parent has no remedy for loss of earnings if the son is lawfully committed to jail for a crime. °' When the parent is a pauper and is maintained by a town, such town is held not entitled to the earnings of a minor child who is not himself a pauper."* § 755. Parent's Right of Action for Child's Labor. The parent may recover the wages of the minor child in an action for work and labor,"" and not in the name of the 49. White V. Henry, 24 Me. 531. use his earnings to support his wife. See Weeks v. Holmes, 12 Cush. 215. Commonwealth v. Graham, 157 Mass. 50. Bishop V. Shepherd, 23 Pick. 492, 73. 51. United States v. Bainbridge, 1 53. People v. Masten, 79 Hon, 580. Mason, 84 ; Baker v. Baker, 41 Vt. 55 ; 54. Jenness v. Emerson, 15 N. H. Banks v. Conant, 14 Allen, 497; Mears 486. V. Bickford, 55 Me. 528; Carson v. 55. Cannon v. MeKenzie, 3 Cal. Watts, 3 Doug. 350; Cadwell v.Sher- App. 286, 85 P. 130; Weaver v. man, 145 HI. 348; Magee v. Magee, Thompson, 143 Ga. 526, 85 S. E. 638; 65 111. 255. But ef. Ginn v. Ginn, Sapp. v. Parrish, 3 6a. App. 234, 59 38 Ind. 526. 8. E. 821;Kooser v. Housh, 78 HI. 52. A father may recover for loss of App. 98; Weeks v. Holmes, 66 Mass. services of an adult daughter who 215. though married was separated from The employer may deduct any loss her husband and a member of such caused by the unfaithfulness of the father's family, where such loss of child or his absence without leave. services was the result of an illegal Moulton v. Trask, 50 Mass. (9 Mete.) carnal assault. Palmer v. Baum, 123 557. HI. App. 584 ; Comomnwealth v. The mere fact that the father noti- Graham, 157 Mass. 73, 31 N. E. 706, fies the employer that he shall expect 16 L. E. A. 578, 35 Am. St. Eep. to receive the wages of his minor son 504. An infant son who marries must is not enough to entitle him to them. 821 8EBVICE8 OF CHILD. § T56 child'* unless waived,"^ or unless the child has been emancipated'' and the employer may set off the reasonable value of necessaries furnished the child. °* The right of action to recover for the services of a minor is presumed to be in his father."" And the father may charge ser- vices rendered by his son, as a master for his apprentice or hired laborer, and consider it his own work.'^ The defendant has the burden of proving any special contract set up, as that the minor's services were in remuneration for board and care for him.*^ •§ 756. Child's Right of Compensation for Services to Parent Where parents and children are living together in the same family there is no presumption that legal liability is raised be' tween them by work done by the child or by financial transactions between them relating to family expenses but these questions are for the jury to consider."' A minor son who occupies the posi- tion of a son in his father's household is not entitled to compensa- tion for services rendered in caring for his father and mother in as where he has failed to provide for the son and he is working for his grandfather. Wililams v. Williams, 132 Mass. 304; Inness v. Meyer, 93 Neb. 43, 139 N. "W. 836; Wolf v. Vannoy, 154 N. W. 215; Daniel v. Atlantic Coast Line E. Co., 86 S. E. 174. Defenses. Fanton v. Byrum, 26 S. D. 366, 128 N. W. 325; Letts t. Brooks, Hill & Den. 3-6; Van Dom V. Young, 13 Barb. 286. 56. Fuller v. Blair, 104 Me. 469, 72 A. 182; Trinity County Lumber Co. V. Conner (Tex. Civ. App.), 187 S. W. 1022. See Langer v. Kaufman, 157 N. T. S. 825, 94 Misc. 216 (infant's right under statute). 57. Biggs V. St. Louis, I. M. & 8. By. Co., 91 Ark. 122, 120 8. W. 970; Allen v. Allen, 60 Mich. 635, 27 N. W. 702; McMorrow v. Dowell, 116 Mo. App. 289, 90 S. W. 728. 58. In re Haskell, 228 F. 819; Freeman v. Shaw, 173 Mich. 262, 139 N. W. 66; Woodward v. Donnell, 146 Mo. App. 119, 123 S. W. 1004. 59. Culberson v. Alabama Const. Co., 127 Ga. 599, 56 S. E. 765, 9 L. E. A. (N. 8.) 411; Newton v. Cooper, 13 Ga. App. 458, 79 8. E. 356; Bounds Bros. V. McDaniel, 133 Ky. 669, 118 S. W. 9*56. 60. Dufield V. Cross, 12 HI. 397; Shute V. Dorr, 5 Wend. 204 ; HoUings- worth V. Swedenborg, 49 Ind. 378; Monaghan v. School District, 38 Wis. 100. See Campbell v. Cooper, 34 N. H. 49. 61. Brown v. Eamsay, 5 Dutch. 117. But see Jones v. Buckley, 19 Ala. 604. 62. Pierce v. Coffee, 160 Iowa, 30, 139 N. W. 1092. 63. Hilbish v. Hilbish, 71 Ind. 27; Allen V. Allen, 60 Mich. 635, 27 N. W. 702; Classen v. Pruhs, 69 Neb. 278, 95 N. W. 640; HoUings- worth V. Beaver, Tenn. Ch. App. 1900, 59 8. W. 464; Myers v. Myers, 47 W. Va. 487, 35 8. E. 868 (unjust litigation of undutiful son not coun- tenanced). Bight of adult child living with parents to recover for services ren- dered. See post, § 806. § 756 PARENT AND CHILD. 822' tte absence of an express contract to that effect,'* and whether a child was to be paid for services is a question depending on all the circumstances."^ Where minor children of a widow assist her to run the deceased father's business there is no consideration for an agreement on her part that they shall be partners, if one was made.*° A father, after emancipating his minor child, may make a contract with him for services." 64. In California by statute there is a presumption that money paid between parents and children is due, and this applies to money turned over by child to parents. Smith v. Smith (Cal. App.), 176 P. 382; Farley v. Stacey, 177 Ky. 109, 197 S. W. 636, 1 A. L. E. 1181. 65. Cole V. Fitzgerald, 132 Mo. App. 17, 111 8. W. 628; Officer t. SwindlehuTst, 41 Mont. 126, 108 P. 583. 86. Tuite v. Tuite, 72 N. J. Eq. 740, 66 A. 1090. 67. MeDaniel v. Parish, 4 App. D, C. 213; Granrud v. Eea, 24 Tex. Civ. App. 29?, 59 S. W. 841. A parent's contract to pay his minor child for services is evidence of emancipation. Granrud v. Eea, 24 Tex. Civ. App. 299, 59 8. W. 841. 823 INJUET TO CHILD. § 75T CHAPTER yill. ACTIONS FOE INJUKT TO CHILD. Section 757. Actions for Injury to Child in General. 758. Statutes Affecting Eight of Action. 759. Surgeon's Liability for Operation on Child. 760. Dangerous Employment; Father's Consent. 761. Suits for Seduction of a Child. 762. Parent's Action for Death. 763. Father's Liability for Fraudulent Misstatement of Age. 764. Parties. 765. Negligence of Parent. 766. Contributory Negligence of Child. 767. Pleadings. 768. Kvidence. 769. Questions for Jury. 770. Damages for Injuries or Enticement. 771. Damages for Seduction. § 757. Actions for Injury to Child ; In General. Two rights of action arise for tbe negligent injury of an infant^ one in the father to recover for the loss of the services of his child from the date of the injury until he attains his majority and for the expense he has incurred in effecting or attempting to effect a cure, and compensation for his care and attention f^ the other in the child to recover for his pain and suffering and the impair- ment of his power to earn money after he reaches his majority." But the parent may waive his right to assert his claim for the damages to which he is entitled, and permit the child to recover the full amount to which he would be entitled if separate suits were brought by each. Such a waiver takes place when the parent has actual notice of the suit brought by his child and of the nature and extent of the amount he is seeking to recover, and he fails to interpose any objection or bring for himself an inde- pendent action before there has been a trial and judgment in the ' action brought by his child,'" and after the father has prosecuted 68. Grinnell v. Wells, 7 M. & Gr. v. Lyons, 155 Ky. 396, 156 Ky. 222, 1041; Rogers v. Smith, 17 Ind. 323; 159 S. W. 971, 160 S. W. 942, 48 Hartfield v. Boper, 21 Wend. 615; L. E. A. (N. 8.) 667; Chesapeake & Dennis v. Clark, 2 Cush. 347. O. Ey. Co. v. Davis, 22 Ky. Law 69. Akers v. Fulkerson, 153 Ky. Eep. 748, 58 S. W. 698, 119 Ky. 641, 228, 154 S. W. 1101. 60 S. W. 14, 22 Ky. Law Eep. 1156. 70. Louisville, H. & St. L. B. Co. A father cannot he held to have § 757 PARENT AND CHILD. 824 a suit as next friend of the child for all damages he cannot later bring action on his own behalf.^^ Hence it is the general rule in this country that recovery for personal injuries to the minor child may be had by the parent,'* and the action for services during minority must be brought by the parent and not by the child.'* waived his right to sue for injuries to his minor son, where he is not shown to be connected with his son's suit therefor in any way, or to have had notice thereof, beyond the fact that his son lived with him. Helm v. Phelps, 157 Ky. 795, 164 S. W. 92. The fact that a child, by her father as next friend, has recovered damages for a personal injury, does not bar the father's subsequent action for loss of services from the same injury. Wilton V. Middlesex E., 135 Mass. 130. Here the child reached majority before the father sued. 71. Furste v. Henderson Lotho- graphing Co., 33 Ohio Cir. Ot. B. 645. 72. St. Louis, I. M. & S. Ey. Co. V. Waren, 65 Ark. 619, 48 S. W. 222; Shoemaker v. Jackson, 128 Iowa, 488, 104 N. W. 503, 1 L. E. A. 137 ; How- ell V. lola Portland Cement Co., .86 Kan. 450, 121 P. 346; Henry v. Mis- souri, K. & T. Ey. Co., 98 Kan. 567, 158 P. 857; Meers v. McDowell, 110 Ky. 926, 62 S. W. 1013; 23 Ky. Law Eep. 461, 53 L. E. A. 789, 96 Am. St. Eep. 475; Ballard v. Smith (Ky.), 210 S. W. 489 (when child employed in dangerous work without knowledge of parent) ; Slaughter v. Nashville C. & St. L. Ey. Co., 28 Ky. Law Eep. 665, 90 S. W. 243, 28 Ky. Law Eep. 1343, 91 S. W. 713 Cincinnati, N. O. & T. P. E. Co. V. Pemberton, 7 Ky. Law Eep. 669 ; Davern v. Bridgeford, 13 Ky. Law Eep. 971. Sven the parent of a iastard is entitled to his services, so where the parent has released action for in- juries, this bars the child's action for loss of earning capacity. Cincinnati, N. O. & T. P. E. Co. V. Pemberton, 7 Ky. Law Eep. 670 ; Dennis v. Clark, 56 Mass. 347, 48 Am. Dee. 671; Mc- Greevey v. Boston Elevated Ey. Co. (Mass.), 122 N. E. 278. A statute authorizing suit by the father for injuries to the minor child is not unconstitutional as assuming to transfer a cause of action from the child to the father. Hess v. Adamant Manuf'g Co. of America, 66 Minn. 79, 6« N. "W. 774; Nyman V. Lynde, 93 Minn. 257, 101 N. W. 163 (criminal abuse of minor child) ; Sabine v. Stringer, 15 Mo. App. 586; Scamell v. St. Louis Transit Co., 103 Mo. App. 504, 77 8. W. 1921. // the injury was not due to the negligence of the defendant employer the father cannot recover for loss of services of the son. Williams v. Southern Ey. Co., 121 N. C. 512, 28 S. E. 367; Gurley v. Southern Power Co., 172 N. C. 690, 90 S. E. 943; Callaghan v. Lake Hopatcong Ice Co., 69 N. J. Law, 100, 54 A. 223; Ken- ner v. Kenner, 139 Tenn. 700, 203 S. W. 72i3, 139 Tenn. 211, 201 8. W. 779; Texas & P. Ey. Co. v. Hervey (Tex. Civ. App.), 89 S. W. 1095; Gulf, C. & S. F. Ey. Co. v. Johnson (Tex. Civ. App. 1897), 43 S. W. 583; Eishworth v. Moss (Tex. Civ. App.), 191 S. W. 843; Trow v. Thomas, 70 Vt. 580, 41 A. 652 ; Otey v. Bradley, 63 Wash. 500, 115 P. 1045; Taylor v. Chesapeake & O. Ey. Co., 41 W. Va. 704, 24 S. E. 631. 73. Eichardson v. Nelson, 221 HI. 254, 77 N. B. 583, 123 HI. App. 550 (the child may recover for loss of services after reaching his majority only) ; Western Union Tel. Co. v. 825 INJUKT TO CHILD. § 757 The action, was originally framed on the basis of the parent's loss of services and some of the early cases refuse relief where the child was too young to render service and there is no evidence that he was of value to the parent,, but the modern cases in this coumtry regard the loss of services as a fiction and allow recovery even in the absence of evidence that the child rendered any ser- vice whatever.'* In an early English case where the plaintiff brought an action against the defendant for carelessly driving over and injuring the plaintiff's child, so that the plaintiff was obliged to expend a large sum of money in doctors and nurses, and it appeared that the child was only two years and a half old, and incapable of per- forming any act of service, it was held that the parent's action was not maintainable." " The gist of the action," it is here said, " is th© loss of services, and, therefore, though the relation of parent and child subsists, yet, if the child is incapable of per- forming any services, the foundation of the action fails.'" And it is doubtful whether the father, as such, can even maintain a special action for the expenses necessarily incurred by him in having so young a child cured of the injury." In this country the rule appears to be more liberal towards the parent. A iffew York court observes that it is really questionable whether the father can be deprived of his right to sue for the loss of services on account of the child's youth ; though, of course, the right may be forfeited by the parent's culpable negligence.'" And in Massachusetts it is decided that if an infant child, a member of his father's household, and too young to be capable of rendering any service to his father, is wounded or otherwise injured by a third person, or by a mischievous animal owned by a third person, under such circumstances as to give the child himself an action against such person for the personal injury, and the father is thereby necessarily put to trouble and expense in the care and cure of the child, he may maintain an action against such person for indemnity. The court laid down the rule, however, with much caution.'' In general, by our American rule, the parent may now Woods, 88 m. App. 375; Gulf, C. & 76. Bayley, J., in ib. 8. F. Ey. Co. T. Grisom, 36 Tex. Civ. 77. See Addison, Torts, 697; Grin- App. 630, 82 S. W. 671. nell v. Wells, 8 Scot. N. K. 741. Con- 74. Eice v. Norfolk-Southern B. tra, Hall v. Hollander, supra. Co., 167 N. C. 1, 82 S. E. 1034. 78. Hartfield v. Eoper, 21 Wend. 75. Hall V. Hollander, 7 Dowl. & 615. By. 133. 79. Dennis v. Clark, 2 Gush. 347. § 757 PAEENT AND CHILD. 826 recover for loss of the child's services during minority, or at least while incapacitated, and the reasonable expense of the child's sickness and restoration to health/" The child^s pecuniary ser- vices are liberally estimated/^ The father's action is predicated on pecuniary loss,*° and is dependent on the child's right of action.*^ The father may sue for illegal sales of drug to minor,** but not for libel against his daughter.*' Trespass lies per quod for loss of services occasioned by assiault and battery of the child.*" The true question here, as elsewhere, seems to be, whether a loss of service was consequent upon the injury. For assault and battery on the high seas, there is likewise a remedy in admiralty.*' And where an injury is inflicted upon a child while living with and in the service of another, the proper remedy of the father is trespass on the case for the reversion, as it were, of the child's services ; as where a person who hired the son of another put him A parent may recover the expense of sidered. Ala. Connelsville Coal & nursing and healing his minor child of such tender years that it is in- capable of rendering him any. service, from one 'who wilfully or negligently injures such child. Sykes v. Lawlor, 49 Cal. 236; Connell v. Putnam, 58 N. H. 534. Cf. Karr v. Parks, 44 Cal. 46; Sawyer v. Sauer, 10 Kan. 519. 80. Evansich v. Gulf E., 57 Tex. 123; Friek v. St. Louis E., 75 Mo. 542. 81. But here, as in other suits for damages, indirect and unreasonable items of damage should be excluded, as, for instance, the father's relin- quishment of a lucrative business as nurse, while nursing his child. Barnes V. Keene, 132 N. Y. 13. The loss of the child's prospective society, solace, and comfort, is not a basis in such suits, but the pecuniary value of ser- "vice during minority or as a servant. Eailroad Co. v. Watly, 69 Miss. 145; The Louisville, New Albany & Chi- cago v. Eush, 127 Ind. 545; Leahy v. Davis, 121 Mo. 227. If the child be a burden, instead of a support, in earning capacity, this should be con- Coke Co. V. Pitts, 9'8 Ala. 285. 82. Sorrels v. Matthews, 129 Ga. 319, 58 S. E. 819, 13 L. E. A. (N. S.) 357; Tidd v. Skinner (N. T.), 122 N. E. 247; Miles v. Cuthbert, 122 N. Y. S. 703 (loss of love and affec- tion is not enough). 83. Benson v. City of Ottnmwa, 143 Iowa, 349, 121 N. W. 1065; Thomp- son V. United Laboratories Co., 221 Mass. 276, 108 N. E. 1042; Began V. Superb Theater, 220 Mass. 259, 107 N. E. 984 (defendant's negligence must be shown) ; Balke v. Otis Ele- vator Co., 164 N. Y. S. 287, 177 App. Div. 49,9 (claim defeated by failure to give notice and by limitation un- der Employers' Liability Act). 84. Tidd V. Skinner, 156 N. Y. S. »85, 171 App. Div. 98. 85. Pattison v. Gulf Bag Co., 116 La. 963, 41 So. 224, 114 Am. St. Eep. 570. 86. Hammer v. Pierce, 5 Harring. 171; Hoover v. Heim, 7 Watts, 62; Plummer v. Webb, Ware, 75; Cowden V. Wright, 24 Wend. 429. But as to indictments, see Hearst v. Sybert, Cheves, 177. 87. Plummer v. Webb, Ware, 75 S27 INJURY TO CHILD. § 758 upon a vicious Horse, so that he was thrown and had his leg broken." The death of the child after the injury, though it may, on familiar principles, terminate the right to sue for the child's tort, does not affect the parent's consequential right of action.*" The death occurring before the commencement of the suit, if in con- sequence of the injury, only aggravates the parent's remedy; if the death is occasioned by other causes, it leaves the remedy as it stood before.'" § 758. Statutes Affecting Right of Action. This right is affected by various local statutes*^ and may be brought under the Employers' Liability Acts.'* Statutes author- izing suits for injuries in the name of the minor child prevent action by the father for loss of services especially where it is provided that he may sue for expenses in caring for the injured child.'* A statute requiring notice in an action for personal injury does not apply to an action by a father for loss of services and medical attendance resulting from an injury to the son.'* 88. Wilt V. Vickers, 8 Watts, 227. 89. Loss of services from the time of the child's injury to the time of his death may be recovered, as well as incidental expenses incurred for nurs- ing and medical attendance. Natchez E. V. Cook, 63 Miss. 38. 90. Plummer v. Webb, Ware, 80; Winsmore v. Greenbank, Bull. N. P. 78; Ihl V. Street E., 47 N. T. 317. 91. A statute authorizing recovery for personal injuries by the employee does not authorize recovery by the parent. Woodward Iron Co. v. Cook, 124 Ala. 349, 27 So. 455. And a stat- ute authorizing the parent to recover for death of a minor phild has no ap- plication where death does not ensue. Bube V. Birmingham Ey. Light & Power Co., 140 Ala. 276, 37 So. 285, 103 Am. St. Eep. 33; Jackson v. Pittsburg, C. C. & St. L. Ey. Co., 140 Ind. 241, 39 N. E. 663, 49 Am. St. Eep. 192; Adams Hotel Co. v. Cobb, 3 Ind. T. 50, 53 S. W. 478; Gibson v. Kansas City Packing Box Co., 85 Kan. 346, 116 P. 502; Alexander v. Stand- ard Oil Co. of Louisana, 140 La. 54, 72 So. 806 (violation of statute prohibiting employment of minor un- der 14 creates no liability to a par- ent) ; Mackin v. Detroit-Timkin Axle Co., 153 N. W. 49; Brunette v. Min- neapolis, St. P. & S. S. M. Ey. Co., 118 Minn. 444, 137 N. W. 172 (stat- ute applicable to non-resident minor) ; Valenti v. Mesinger, 162 N. T. S. 30, 175 App. Div. 398 (Employers' Liability Act inures to benefit of par- ent) ; Dobra v. Lehigh Valley Coal Co., 250 Pa. 313, ^ A. 465; St. Louis, I. M. & S. Ey. Co. V. Leazer, 119 Tenn. 1, 107 S. W. 684; Stevenson V. W. M. Eitter Lumber Co., 108 Va. 575, 62 S. E. 351, 18 L. E. A. (N. S.) 316. 92. Balke v. Otis Elevator Co., 164 N. T. S. 287, 177 App. Div. 499. 93. Tennessee Cent. Ey. Co. v. Doak, 115 Tenn. 720, 92 S. W. 853. 94. Wysocki v. Wisconsin Lakes Ice & Cartage Co., 125 Wis. 638, 104 N. W. 707. § 760 PASENT AND CHILD. 828 Statutes providing that the mother and father are jointly liable for all necessaries used by the family and are jointly entitled to their custody make no material change in the duty imposed on the father to support the family and therefore the father alone may bring an action for loss of services in case of injury to the child." § 759. Surgeon's Liability for Operation on Child. A surgeon is not liable for amputating the foot of a child which is crushed in the absence of the parents and without their con- sent where it is a case of emergency and prompt action is neces- sary to save the life of the patient, and he uses his best judgment that an amputation is necessary, where also be inquires as to the parents and is informed that they are not available." § 760. Dangerous Employment; Father's Consent. An employer who uses one whom he knows to be a minor or might in the exercise of reasonable care know to be such in a dangerous employment is liable to the father for injuries suffered ■ in such employment,®' but not where the employer did not know that the child was a minor or in the exercise of ordinary care could not find it out, the child appearing to be of age.®* If the father consents to the employment of his minor child in a certain employment he is chargeable with all the risks of the em- ployment whether he knew of them or not.** and cannot recover for the negligence of a fellow-servant,^ but consent to employment 95. Ackeret v. Minneapolis, 129 Ala. 205, 44 So. 974; Eeaves v. An- Minn. 190, 151 N. W. 976, L. K. A. aiston Knitting Mills, 154 Ala. 565, 1915D, 1111. 45 So. 702 (although the employment 96. Luka v. Lowrie (Mich.), 136 of minors in the work was prohibited N. W. 1106, 41 L. B. A. (N. S.) by statute) ; Harris v. Union Cotton 290. Mills (Ga. App.), 98 S. E. 192; Ches- 97. IlUnois Cent. R. Co. v. Henon, apeake & O. Ey. Co. v. De Atley, 151 24 Ky. Law Eep. 298, 68 S. W. 456. Ky. 109, 151 S. "W. 363; Eowland v. A newsboy receiving a commission Little, 140 Ky. 309', 131 S. W. 20; from a news company for the sale of Hetzel v. Wasson Piston Eing Co., papers is in the employment of such 89 N. J. Law, 205, 98 A. 308; Texas company and the company is liable & P. Ey. Co. v. Putman (Tex. Civ. in a suit by the widowed mother for App.), 89 S. W. 1095; Pecos & N. T. injury to the boy. Union News Co. Ey. Co. v. Blasengame, 42 Tex. Civ. V. Morrow, 20 Ky. Law Eep. 302, 46 App. 66, 93 S. W. 187. S. W. 6. 1. Harris v. A. J. Spencer Lumber 98. Chesapeake & O. Ey. Co. v. De Co., Inc., 64 So. 557; Woodward Iron Atley, 151 Ky. 109, 151 S. W. 363. Co. v. Cook, 124 Ala. 349, 27 So. 455; 99 Woodward Iron Co. v. Curl, 153 Jordan v. New England Structural 829» INJURY TO CHILD. § 760 in a particular task does not involve consent to a different work.^ A contract by whicli a father releases the employer of his son from liability for injuries suffered is binding and will prevent recovery for such injuries.' It is well settled that the father may stipulate as to the kind of work his child may be employed in, and the consent of the parent that the child may be employed at one kind of labor is not con- sent that he be placed in another and a more dangerous kind of work.* It is a general rule that an employer putting a minor ser- vant, against his parent's consent, to do work by which the child is injured, commits an actionable wrong for which the employer is liable to the parent, although there is no other evidence of negli- gence upon his part." And under such circumstances the minor servant's contributory negligence is no defence to such action.' So one who employs a minor in a dangerous employment without the consent of the parent is liable to the parent for any loss of the minor's services due to the employment, without reference to whether the loss resulted from negligence of the master.' Con- sent may appear from acquiescence and failure to object after knowledge of the particular employment." Co., 197 Mass. 43, 83 N. E. 332 ; Texas 30 L. E. A. (N. S.) 311; HUlsboro & P. E. V. Hervey (Tex. Civ. App.), Cotton Mills v. King, 51 Tex. Civ. 89 S. W. 1095. App. 518, 112 S. W. 132. 2. Marbury Lumber Co. v. West- 5. Union P. E. Co. v. Fort, 17 Wall, brook, 121 Ala. 179, 25 So. 914; Dim- 553, 21 L. ed. 739. miek Pipe Co. v. Wood, 139 Ala. 282, 6. Marbury Lumber Co. v. West- 35 So. 885; Braswell v. Garfield Cot- brook, 121 Ala. 179, 25 So. 914; ton Oil Mill Co., 7 Ga. App. 167, 66 Haynie v. North Carolina Electric S. E. 539; Berry v. Majestic MUling Power Co., 157 N. C. 503, 73 S. E. Co. iUo. App.), 210 S. W. 434; 198, 37 L. E. A. (N. S.) 580. Haynie v. North Carolin:! Electric 7. Woodward Iron Co. v. Curl, 153 Power Co., 157 N. C. 503, 7o ^ E. Ala. 205, 44 So. 974; Jefferson Per- 198; Southwestern Telegraph & 'lale- tilizer Co. v. Burns, 10 Ala. App. 301, phone Co. v. Coffey (Tex. Civ. App.), 6.4 Bo. 667; King v. Ploding, 18 Ga. 167 S. W. 8. App. 280, 89 S. E. 451; Hendriekson 3. New V. Southern Ey. Co., 116 v. Louisville & N. By. Co., 137 Ky. Ga. 147, 42 S. E. 391, 59 L. E. A. 562, 126 S. W. 117; Boutotte v. 115; contra, Texas & P. Ey. Co. v. Daigle, 113 Me. 539, 95 A. 213; Webb Putnam (Tex. Civ. App.), 63 S. W. v. Southern Ey. Co., 104 S. C. 89, 88 910 (recovery for injuries received S. E. 297; Cook v. Urban (Tex. Civ. from negligence of employer not App.), 167 S. W. 251. barred). 8. Warrior Mfg. Co. v. Jones, 155 4. Bruswell v. Garfield Cotton Oil Ala. 379, 46 So. 456; Tennessee Coal, MiU Co., 7 Ga. App. 167, 66 S. E. Iron & E. Co. v. Crotwell, 156 Ala. 539; Hendriekson v. Louisville & N. 304, 47 So. 64; King v. Ploding, 18 B. Co., 137 Ky. 568, 126 8. W. 117, Ga. App. 280, 89 S. E. 451; Louis- § T61 PARENT AND CHILD. SSO § 761. Suits for Seduction of a Child. Even in seduction suits the same technical principle is rather absurdly, though not always xmkindly, applied. The foundation of the action by a father to recover damages against the wrong-doer for the seduction of his daughter has been uniformly placed, from the earliest times, not upon the seduction itself, which is the wrong- ful act of the defendant, but upon the loss of service of the daughter, in which he is supposed to have a legal right or interest.* At common law the seduced woman herself has no cause of action against her seducer.^" And without some allegation and proof of loss of service in a parent or master the action is not maintainable. Our local statutes, however, sometimes change this basis of action in favor rather of a loss of society and solace.^^ Thus, where it was alleged by the father that his daughter was a poor person, maintaining herself by her labor and personal ser- vices, and not of sufficient ability to maintain herself otherwise; and that, by being debauched, she became unable to work, and had to be maintained by her father at considerable expense, — all this was held insufficient allegation of loss of service." So it is not enough to show that the father had apprenticed his daughter to the defendant to learn millinery, and had paid him a large sum of money to instruct her in a trade, but that the defendant seduced her and rendered her unable, by reason of pregnancy, to learn the trade." But the evidence of service may be very slight ; for the making tea, milking cows, or doing any household work at the command of the parent, is esteemed quite sufficient to constitute the relation- ship of master and servant, when the girl is residing with her father and mother ; ^* and the right of action once clear, damages far in excess of the loss of service are usually recoverable, damages Tille & N. E. Co. V. Davis, 32 Ky. 11. Graham v. MeEeynoIds, 90 Tenn. Law Eep. 306, 105 S. W. 455; Mauck 673; Stoudt v. Shepherd, 73 Mieh. T. Southern Ey. Co. in Kentucky, 148 588. Ky. 122, 146 S. W. 28. 12. Grinnell v. Wells, 7 M. & Gr. 9. Grinnell v. Wells, 7 M. & Gr. 1033. 1033; Eager v. Grimwood, 1 Exch. 13. Harris v. Butler, 2 M. & W. 61; Van Horn v. Freeman, 1 Halst. 539. 322 ; MeiDaniel t. Edward, 7 Ired. 14. 1 Addison, Torts, 698, 701 ; Ben- 408; Sutton v. Huffman, 32 N. J. L. nett v. Allcott, 2 T. E. 166; Thomp- 58; Knight v. Wilcox, 14 N. T. 413; son v. Eos3, 5 Hurl. & Nor. 16; Man- Bartley v. Eichtmeyer, 4 Comst. 38. veil v. Thomson, 2 Car. & P. 303; 10. Woodward v. Anderson, 9 Bush, Vessel v. Cole, 10 Mo. 634 ; 2 Kent, €24. Com. 205, 12th ed., and cases cited. 831 INJUKT TO CHILD. § 761 whicli practically regard the wrong done by her disgrace to the young woman's household and to her own character and prospects. Thus will justice, seeing the goal clearly, drive straight towards it, regardless of obstructions ; either finding an avenue or making one. But to render this action maintainable, the parent must have a genuine right to his daughter's services, however slight the ser- vices which may be exacted. If, therefore, the daughter, at the time she was seduced, was at the head of an establishment of her own, and her father was living with her as a visitor in her own housie, she cannot be treated as holding the subordinate position of a servant, and the action will not lie.^' ISTor can a parent sue, as the stricter rule is laid down, where the child is really in the service of another, and, by permission of her mistress, oomes home to render slight assistance from time to time.^* Nor where the child is seduced while in the service of another, and then returns home and remains there in a state of pregnancy.^^ Nor where one's daughter had been left to shift for herself and was another's household servant.^* But if the daughter is away only on a tem- porary visit, and still forms part of her father's family, and makes herself serviceable to him while she is at home, such temporary absence constitutes no impediment to an action by the father for damages.^' In a word, the question is whether there was, at the time the injury was committed, a bona fide relation of constructive service between parent and child, which suffered by the wrongful act of the defendant. This rule of constructive service is, however, carried very far, by many of our later and humane decisions.'"' Such cases illustrate 15. Manley v. Fields, 7 C. B. (N. S.) daughter was about twenty-two years 96. of age when seduced, and was living 16. Thompson v. Ross, 5 Hurl. & a part of the time with her brother. Nor. 16 ; Hedges v. Tagg, L. E. 7 Ex. who occupied a farm about a mil& 283 ; Blaymire v. Haley, 6 M. & W. from her father, and part of the time 55. And see Kinney t. Laughenour, with her father. While the rule was 89 N. C. 365. fully approved that the father and 17. Davies v. Williams, 10 Q. B. daughter must have stood in the rela- 725. tion of master and servant at the 18. Ogbom V. Francis, 44 IT, J. L. time the injury was committed, it 441. was further held that it was not nec- 19. Griffiths v. Teetgen, 15 C. B. essary that the daughter should be 344 ; 28 E. L. & Eq. 371. See, further, in the actual service of the father at 1 Addison. Torts. 698 ; Evans v. Wal- the time of the seduction, if the rela- ton. L. If. 2 C. P. 615. tion of master and servant then ex- 20. There is a New Jersey case, isted between them; in other words, •where it appeared in evidence that the that the service rendered need not b© § V61 PARENT AND CHILD. 832 the generous disposition witli which the courts uphold a parent's right of action in seduction suits ; and it is probably at any point short of her abode in another household where the parent has relinquished the right of her service past the power of recall, that the bounds should be placed to this rule of a daughter's service entitling the parent to sue for damages."^ house service, nor serrice from day to vice very far. " The action, no day, but that any accustomed service doubt, is founded on the special lost by the injury would sustain the ground of loss of service (this is not action. Sutton v. Huffman, 33 N. J. L. 58. And see Greenwood v. Greenwood, 28 Md. 370; Ellington v. Ellington, 47 Miss. 329; Emery v. Gowen, 4 Me. 33 ; Simpson v. Grayson, 54 Ark. 404. In these and some other cases there is a manifest tendency to exclude a presumption of emancipation, so as to leave the parent's remedy unim- paired. The rule in Virginia is more strict. Lee v. Hodges, 13 Gratt. 726. In New York, the doctrine of Martin V. Payne, 9 Johns. 387, and other cases, led to much confusion, by per- mitting suits to be brought where there was in reality no loss of ser- vices sustained. But in the later cases the courts have returned to the strictness of the English rule. Bart- ley V. Eichtmeyer, 4 Comst. 38. And cf. earlier and later notes to 2 Kent, Com. 205. In a recent English case the plaintiff's daughter, being under age, left his house and went into ser- vice. After nearly a month the mas- ter dismissed her at a day's notice, and the next day, on her way to her father's house, the defendant seduced her. It was held that as soon as the real service was terminated by the master, whether rightfully or wrong- fully, the girl intending to- return home, the right of the father to her services revived, and that there was, therefore, sufficient evidence of ser- vice to maintain an action for the seduction. Terry v. Hutchinson, L. E. 3 Q. B. 599 (1868). And see Evans v. Walton, L. E. 2 C. P. 615. This, the court admitted, was carry- ing the doctrine of constructive ser- very creditable, perhaps, to our law), but the action is substantially for the aggravated injury that the father has sustained in the seduction of the child. ' ' Per Cockbum, C. J., in Terry %f. Hutchinson, L. E. 3 Q. B. 599. 21. Where the father verbally agrees that his daughter shall reside as ser- vant in a stranger's family for a cer- tain number of years, this does not debar his right to recover for her seduction during minority by her em- ployer's son. Mohry v. Hoffman, 86 Pa. St. 358. Cf. White v. Murtland, 71 ni. 252. In other words, the father may sue per quod where he does not relinquish the daughter's services, but retains the right to command them, though she resides elsewhere. Mohry V. Hoffman, supra; Blagge v. Ilsley, 127 Mass. 191. Very slight service at home every Sunday, where the daughter is employed by another, suf- fices. Kennedy v. Shea, 110 Mass. 147; Eiddle v. McGinnis, 22 W. Va. 253. Enticing one's daughter away for the purpose of prostitution or concu- binage or seduction, is made an in- dictable offence in some States. Slo- cum V. People, 90 111. 274; State v. Breice, 27 Conn, 319; Wood v. State, 48 Ga. 192; Boyce v. People, 55 N. T. 644 ; Bowers v. State, 29 Ohio St. 542; Galvin v. Crouch, 65 Ind. 56. And see Bishop and other general writers on Criminal Law and Torts. The female under such statutes, ought in general to be of good repute for chastity previous to the offence, and unmarried. But statutes differ. See 833 INJURY TO CHILD. § 761 It is not necessary that the daughter should be under age in order that the parent may maintain the action for seduction. The important question is, whether emancipation in fact had taken place at the time of the injury; for if the relation of master and servant exists between the father and his grown-up daughter, how- ever this relation may have been created, the right of action is complete.^'' And even where a married woman, separated from her husband, returned to her father's house and lived with him, performing various acts of service, it was held that, as against a wrong-doer, it was sufficient to prove that there was the relationship of master and servant de facto."^ So where one stands in loco parentis, he may recover damages, as an actual parent would ; as in the case of an orphan living with a relation, or a friend and benefactor, and rendering such domestic attendance and obedience as is usually rendered by a daughter to her father.^* But the parent cannot maintain an action for the seduction of a daughter over twenty-one and working out on her own account.^' And while, as surviving parent, the mother may sue for her daughter's seduction under circumstances showing service rendered her, it is held that a mother cannot maintain an action for the seduction of her daughter while the father was alive, though the illicit offspring was not bom until after the father's death.^' The wrongful act for which the parent sues must be the natural and direct cause of the injury for which damages are sought, and State V. Jones, 16 Kan. 608. The inson, 3 Comst. 312 ; Maguinay v. Sau- woman might have reformed. Illicit dek, 5 Sneed, 146; Ball v. Bruce, 31 intercourse alone does not constitute 111. 161. what is known as seduction. People 25. George v. Van Horn, 9 Barb. V. Clark, 33 Mich. 112. 533. 22. I Addison, Torts, 700 ; Sutton v. 2G. Vessel v. Cole, 10 Mo. 634 ; Gray Huffman, 3Z N. J. L. 58 ; Greenwood v. Durland, 50 Barb. 100. Statutes V. Greenwood, 28 Md. 370; Stevenson enlarging the rights of married wo- T. Belknap, 6 la. 97 ; Wert v. Strouse, men sometimes extend the mother 's 38 N. J. L. 184. An imbicile daugh- action. Badgley v. Decker, 44 Barb. ter over twenty-one, who lives at home 577. A widowed mother whose minor still, is not emancipated in any sense child is actually in her service has the to debar a suit. Hahn v. Cooper, 84 right of action. Gray v. Durland, 51 Wis. 629. N. T. 424. A mother remarried may 23. Harper v. Lnffkin, 7 B. & C. have the right to sue. Lampman v. 387. Hammond, 3 Thomp. & C. 293. See 24. 1 Addison, Torts, 700; Irwin v. Hobson v. Fullerton, 4 111. App. 282; Dearman, 11 East, 23; Edmonson v. Furman v. Van Sise, 56 N. T. 435. Machell, 2 T. E. 4 ; Williams v. Hutch- But not one in whose household a girl 53 § 762 PARENT AND CHILD. 834r the damages recoverable its necessary and proximate consequence. . To this principle is to be referred a curious case in New York.^' But mental illness directly resulting from the injury is, of itself, sufficient to support an action for loss of services ; and such a suit might be maintainable, notwithstanding seduction was followed neither by pregnancy nor sexual disease. ^^^ Where a person hires a girl as a servant for the purpose of with- drawing her from her family and seducing her, this is fraud, and the parent's right of action is not thereby forfeited ; for in such a case the new relation of master and servant is not hona fide created, and the former relation may be held to have continued.^' Fraud- ulent marriage virtually resulting in a seduction may be treated as enticement.^* It would seem as though the previous unchasteness of a girl — considering, too, her age, and her apparent want of parental oversight — ought to affect the right of sucli suits and the damages; but at all events it is the general rule that the daughter's consent does not bar the parental suit whether the daughter was willing or not, and whether the person debauching her accomplished his end by force or by insinuating arts; nor is " seduction " commonly applied here in its most literal sense.'" But we may finally observe that the latest legislation in some States tends to place seduction suits on a more natural footing, by enabling the woman to sue an offender directly in damages for her own seduction and the consequent injury.^'- § 762. Parent's Action for Death. Though natural equity may assert otherwise, the common law does not permit a father to recover for injuries causing the imme- diate death of his child, either on the ground of loss of services or stays temporarily without any defl- 219; Abrahams v. Kidney, 104 Mass. nite agreement of service. Blanchard 222. T. Ilsley, 120 Mass. 487. 28. Speight \. Oliviera, 2 Stark. A grandfather standing in loco pa- 435; 2 Kent Com. 205; 1 Addison,. rentis, and with due rights and obliga- Torts, 699; Dain v. Wydcoff, 18 N. T. tions, may thus sue. Certwell v. Hoyt, 45. 13 N. T. Supr. 575. 29. Lawyer v. Friteher, 130 N. T. 27. Knight v. Wilcox, 14 N. T. 413. 239. See Eager v. Grimwood, 1 Exch. 61; 30. Damon v. Moore, 5 Lansing (N. Boyle V. Brandon, 13 M. & W. 738; T.) 454; Graham v. Reynolds, 90 Tenn. Beddie v. Scoolt, Peake, 240; 1 Ad- 673. dison, Torts, 701, as to the various 31. Thompson v. Young, 51 Ind. grounds of defence in seduction suits. 599; Watson v. Watson, 49 Mich. 540; 27a. Manvell v. Thomson, 2 Car. & Weiher v. Meyersham, 50 Mich. 602. P. 303 ; Seager v. Sligerland, 2 Caines, To sue thus, alleging that she per- 835 INJURY TO CHILD. § 762 for burial expenses.'^ And since, as we have seen, the parent's right of suit is founded upon the loss of a child's services, irrespec- tive of the child's own suit for damages, there are circumstances under which such suits might be brought, notwithstanding the child was of age, contrary to the general rule,^^ or where one stood to a child not his own in place of a parent.'* However, statutes enlarging the rights of widows, dependent parents, and others, in torts occasioned by the negligence of rail- road corporations and other common carriers, are to be found in England and America. Under such statutes it is frequently pro- vided that, where a child is thus killed, the child's administrator may sue for the parent's benefit. The English statute, known as Lord Campbell's Act, 9 & 10 Vict., c. 93, has given rise to suits of this kind; but the rule is laid down that such actions are not maintainable without some evidence of actual pecuniary damage, some loss of service.^" Under statutes giving a right of action for death of the child to the parent like the Federal Employers' Liability Statute, the Hiitted seduction in consideration of a promise to pay money which the defendant failed to keep, is a bar to the action. Wilson v. Ensworth, 85 Tnd. 399. But previous chastity need not be averred. Hodges v. Bales, 102 Ind. 494. Nor special damage. Mo- Ilvain V. Emery, 88 Ind. 298. A fe- male of nonage may thus sue. Mc- Coy V. Trucks, 121 Ind. 292. 32. Osbom v. Gillett, L. E. 8 Ex. 88, and cases cited; Edgar v. Castello, 14 S. C. 20 ; McDowell v. Georgia B., 60 Ga. 320; Carey v. Berkshire E., 1 Cush. 475. Parental suit not allowed against the seller of a revolver to a boy of fifteen, in violation of law, Trith which the boy carelessly shot himself. Poland v. Earhart, 70 la. 285. But suit allowed against one who employed a child, without the father's consent, in dangerous service, and negligently caused the child's death. Fort Wayne E. v. Beyerle, 110 Ind. 100. As to circumstances of such employment and knowledge that the child was a minor, ef. Eailway Compaay v. Eedeker, 67 Tex. 190; T. & N. O. Ey. Co. V. Crowder, 61 Tex. 262. And see Sherman v. Johnson, 58 Vt. 40. In suits for damages caused by corporate negligence, our juries, and sometimes the courts and legislature, incline to extravagant computation of a punitive sort. See rule of statute held constitutional in 84 Ga. 345. Burial expenses, if the child dies of the injury, are recover- able. 121 Mo. 227. Prospective ser- vices of the child during minority, less the cost of support, should be considered in case the child is killed, and actual pecuniary damage esti- mated, 95 Cal. 510. Whether the sta- tutory action by administrator and the parental action coexist, see 53 Ark. 117. 33. Pennsylvania E. v. Keller, 67 Pa. St. 300; Mercer v. Jackson, 54 111. 397. And see infra, § 262. 34. Whitaker v. Warren, 60 N. H. 20; § 273. 35. Duckworth v. Johnson, 4 Hurl. & Nor. 653. See, further, Frank v. New Orleans, &c., E., 20 La. Ann. 25 ; Pennsylvania B. v. Banton, 54 Pa. § 763 PAEENT AND CHILD. 836 extent of the damage is to be measured by the pecuniary loss sus- tained by the beneficiaries ratber than by the loss to the estate of the deceased. The damages must in the case of parents be limited to the present worth of gifts which the parents could reasonably have expected to have received from the adlllt child in the course of their lives. This involves an inquiry into the means and earning capacity of the decedent on the one hand and the means and earning capacity of the parents on the other hand.^" The mother of a child who is divorced from the father and is obliged by statute to support the child is entitled to recover for his wrongful death/'' and where a father deserts his family entirely and leaves the mother to take care of them, and she negligently allows him to undertake a dangerous occupation, she is his agent so far that her negligence will bar a suit for the death of the child brought for his benefit.^' So where the damages recovered for the death of a minor child under the statute would be community prop- erty, no recovery can be had for the benefit of the wife where the husband is barred by bis negligence or misrepresentation, as there is no way of allowing the mother a recovery without allowing the father to profit by his own wrong.^" A statute providing for action for death to the parents of an " unmarried " woman covers a case of one who dies in an accident about thirty minutes after her husband.*" § 763. Father's Liability for Fraudulent Misstatement of Age. Where a person is induced by the misrepresentation of anothei" to do an act which, in consequence of such misrepresentation, he, without negligence on his part, believes to be neither illegal nor immoral, and which would not be illegal or immoral if the repre^ sentation were true, but which is in fact a criminal offence, he may recover from the maker of the representation any damages sustained by him proximately resulting from the act. The rule that a minor suffering an injury while engaged in an employment which the law forbids him to be engaged in on account St. 495; Gann v. 'Worman, 69 Ind. 458 ; 38. Swope v. Keystone Coal & Coke Peiry v. Carmiehael, 95 111. 519; May- Co. (W. Va.), 89 S. E. 384, L. E. A. hew V. Burns, 103 Ind. 328. 1917A, 1138. 36. McCullough V. Chicago, Book 39. Crevelli v. Chicago, Milwaukee, Island & Pacific E. Co. (la.), 142 N. &c., E. Co. (Wash.), 167 Pae. 66, L. W. 67, 47 L. E. A. (N. S.) 23. E. A. 1918A, 206. 37. Clark v. Detroit & Mackinac E. 40. Myers v. Denver & Eio Grande Co. (Mich.), 163 N. W. 964, L. E. A. E. Co. (Colo. 1), 157 Pac. 196, L. E. 1917F, 851. A. 1917D, 287. 837 INJURY TO CHILD, § 764 of his age cannot be barred of his recovery nor subjected to an action or counterclaim for damages because he misrepresented his age when he was employed does not apply to the father or other third person upon the faith of whose false representations the minor was employed. The law prohibiting the employment of children of tender years at dangerous occupations is for the protection of the children themselves, and public policy for'bids that they should be capable of dispensing with its provisions. The same consideration, however, does not apply to the act of the parent. No good reason is perceived why he should not answer for his wrong. Hence one who employs a minor, relying on the false representations of the father as to his age, may recover of the father the expenses to which he was subjected by recovery against him by the minor in an action under the statute for employment of a minor in a dangerous occupation.*'^ So an action brought by the surviving parent for the death of his minor child is barred by the fraud of the parent in misrepresenting the age of the child in obtaining employment for him. To allow a recovery would be a violation of the policy of the law which forbids that one shall reap a benefit for his own miscon- duct, and the rule is the same where the father brings the action as administrator of the son for his own benefit.*^ § 764. Parties. Action for injury to the minor child should be brought in the name of the father, if alive,** or if he is dead at the time of the injury In the name of the mother,** but under a statute giving both 41. Stryk v. Mnichowiez, 167 Wis. News Co. v. Morrow, 20 Ky. Law, 265, 167, N. "W. 246, 1 A. L. R. 297. 302, 46 S. W. 6; Creagh v. New Or- 42. Crevelli v. Chicago, Milwaukee, leans Ey. & Light Co., 128 La. 305, &c., E. Co. (Wash.), 167 Pac. &6, L. 54 So. 828. E. A. 1918A, 206. The mother cannot sue where the 43. Louisville, N. A. & C. Ey. Co. father is living. Kaufman v. Clark, V. Goodykoontz, 119 Ind. Ill, 21 N. 141 La. 316, 75 So. 65; Franklin v. E. 472, 13 Am. St. E. 371 ; Adams v. Butcher, 144 Mo. App. 660, 129 S. W. Louisville & N. E. Co., 153 Ky. 42, 428. 154 S. W. 392; Aekeret v. City of Death or desertion of the father Minneapolis, 151 N. W. 9'76. may be enough to warrant action by 44. Union News Co. v. Morrow, 20 the mother under statute, but the fa- Ky. Law, 302, 46 S. W. 6; Crowley ther's death or desertion must appear V. Pennsylvania E. Co., 231 Pa. 286, in the petition. Martin v. City of 80 A. 175. Butte, 34 Mont. 281, 86 P. 264; Mc- The fact that the mother since the Garr v. Nat. & Providence Worsted injury has become VMfit to have the Mills, 24 E. I. 447, 53 Atl. 320, 60 care and custody of the child does not L. E. A. 122, 96 Am. St. E. 749; prevent action in her name. Union Forsyth v. Central Mfg. Co., 103 § 765 PAEENT AND CHILD. 838 parents equal rights in minor children it is proper for both to join in an action to recover for loss of services of a minor child.*' Suit may be brought in some States by statute by a deserted wife,** or where it appears that by mutual arrangement the mother has taken the care of the child and the father has relinquished his rights to the child's earnings,*^ or by anyone standing in loco parentis to the child.** A divorce decree giving the mother care and custody of the chil- dren does not release the father from the duty of support, and therefore does not entitle her to sue for injury to a child.** Where the father dies pending suit and the mother is substituted a judg- ment in her name in her own right cannot be obtained.""* § 765. Negligence of Parent. The negligence of the parent in failing to take care properly of his minor child will bar the parent from action for injury to the child where the parent's negligence contributes to the injury,"^ as Tenn. 497, 53 S. W. 731; Natchez E. 50. Kelly v. Pittsburg & B. Trac- V. Cook, 63 Miss. 38. Some late cases tion Co., 204 Pa. 623, 54 A. 482. prefer to say that the right is based 51. Defendant's failure to warn. upon the parental relation, as dis- tinct from, though analogous to, that of master and servant. Netherland- American Steam Nav. Co. v. Hol- lander, 59 Fed. 417. See Sorenson v. Balaban, 42 N. T. S. 654, 11 App. Div. 164, 4 N. Y. Ann. Cas. 7. 45. Bailey v. College of Sacred Heart, 52 Colo. 116, 119 P. 1067; Thomas v. St. Louis, L M. & S. Ey. Co., 180 S. W. 1030. 48. American Steel & Wire Co. v. Tynan, 183 F. 949, 106 C. C. A. 289 (unless remarried) ; Tornroos v. E. H. White Co., 220 Mass. 336, 107 N. E. 1015; Tost V. Grand Trunk Ey. Co., 163 Mich. 564, 128 N. W. 784, 17 Det. Leg. N. 911. 47. McGarr v. National & Provi- dence Worsted Mills, 24 E. I. 447, 53 A. 320, 60 L. E. A. 122, 96 Am. St. E. 749. 48. City of Albany v. Lindsey, 11 Ga. App. 573, 75 S. E. 911. 49. Keller v. City of St. Louis, 152 Mo. 596, 54 S. W. 438, 47 L. E. A. 391. In an action by a parent for injury to a minor, based upon defendant employer's failure to instruct her as to the dangers of the employment, that the parent knowingly permitted the minor to go unprotected among defendant's machinery, knowing the place to be dangerous, etc., is insufS- cient to show contributory negligence, defeating right to recovery. Eeaves v. Anniston Knitting Mills, 154 Ala. 565; 45 So. 702; s. c, 166 Ala. 645, 52 So. 142; St. Louis, I. M. & S. Ey. Co. V. Colum, 72 Ark. 1, 77 8. W. 596 ; Thomas v. Chicago, M. & St. P. Ey. Co., 114 la. 169, 86 N. W. 259; Feldman v. Detroit United Ey., 162 Mich. 486, 127 N. W. 687, 17 Det. Leg. N. 707; Mattson v. Minnesota & N. W. E. Co., 95 Minn. 477, 104 N. W. 443, 70 L. E. A. 503, 111 Am. St. E. 483; Peterson v. Martin (Minn.), 164 N. W. 813; Mattson v. Minne- sota & N. W. E. Co., 98 Minn. 296, 108 N. W. 517; Berry v. St. Louis, M. & S. E. E. Co., 214 Mo. 593, 114 S. W. 27; Winters v. Kansas City 839 INJURY TO CHILD. § 767 "where the parent was at work and unable to have personal orer- fiight of the child."^ If the defendant's negligence was the prox- imate cause of the injury the parents may still recover although negligent in some jurisdictions."' The negligence of a parent is not to be imputed to a minor child. So where the father is driv- ing a horse and sleigh with his child as p^senger the father's negligence is not to be imputed to the child."* § 766. Contributory Negligence of Child. The contributory negligence of the child will be a defence to an action by the parent if it proximately contributed to the injury." § 767. Pleadings. The petition should set forth the injury received and the rela- tion of the plaintiff as parent," and that as a consequence thereof Cable By. Co., ff9 Mo. 509, 12 S. W. care used) ; Quinn v. City of Pitts- 652, 6 L. E. A. 536, 17 Am. St. B. 591 (parents' negligence must be the proximate cause of injury) ; Harring- ton V. Butte, A. & P. By. Co. (Mont., 1908), 95 P. 8 (prima facie evidence) ; Conway v. Monidah Trust, 53 Mont. 244, 157 P. 178; O'Shea v. Lehigh Val. B. Co., 79 N. T. S. 890, 79 App. Div. 254; Bapa- yoTt V. Pittsburgh Bys. Co., 247 Pa. 347, 93 A. 493; Kuehne v. Brown, 257 Pa. 37, 101 A. 77; Pollack v. Penn- sylvania B. Co., 210 Pa. 634, 60 A. 312, 105 Am. St. B. 846; Watson v. Highland Grove Traction Co., 68 Pa. Super. Ct. 332; Kilpatrick v. City of Spartanburg, 85 S. E. 775; Berger v. Charleston Consol. By., Gas. & Elec- tric Co., 93 S. C. 372, 76 S. E. 1096; Gulf, C. & S. F. By. Co. v. Johnson (Tex., 1899), 51 S. W. 531, 53 S. W. 374; Pierce v. Millay, 62 HI. 133; Smith V. Hestonville B., 92 Pa. St. 450; Kreis v. Wells, 1 E. D. Smith, 74; Glassey v. Hestonville, &c., B., 57 Pa. St. 172. In the following cases negligence of the parent did not. appear: Cohn T. W. E. Cody Sales Stable Co., 14 Ga. App. 234, 80 S. E. 661 (eight- year-old boy riding tricycle in street) ; Winters v. Kansas City Cable By. Co., 99 Mo. 509, 12 S. W. 652, 6 L. B. A. 536, 17 Am. St. B. 591 (where usual burgh, 243 Pa. 521, 90 A. 353 (cross- ing foot-bridge) ; Enright v. Pitts- burg Junction B. Co., 204 Pa. 543, 54 A. 317 (strolling on railroad tracks) ; Texas & P. By. Co. v. Ball, 96 Tex. 622, 75 S. W. 4, 73 S. W. 420 (crossing railroad track). 52. Addis v. Hess, 29 Pa. Super. Ct. 505; Weida v. Hanover Tp, 30 Pa. Super. Ct. 424; Distasio v. United Traction Co., 35 Pa. Super. Ct. 406. 53. Danna v. City of Monroe, 129 La. 138, 55 So. 741. 64. Brennan v. Minnesota, &c., B. Co., 130 Minn. 314, 153 N. W. 611, L. B. A. 1915F, 11. 55. Marbury Lumber Co. v. West- brook, 121 Ala. 179, 25 So. 914; Wueppeshal v. Connecticut Co., 87 Conn. 710, 89 A. 166; Ballard v. Smith (Ky.), 210 S. W. 489 (where child without knowledge of employer undertook dangerous work) ; Tidd v. 8kinner( N. Y.), 122 N. E. 247; Ken- ner v. Bader, 170 N. T. S. 957. Where a minor was induced hy his employer to engage in hazardous employment without the consent of his father the minor's contributory negli- gence is no defence. Webb v. South- ern By. Co., 104 S. C. 89, 88 S. E. 297. 56. Woodward Iron Co. v. Curl, 153 Ala. 205, 44 So. 974 (child presumed § 769 PAEENT AND CHILD. 840 the parent lost his services."^ In actions against an employer the petition should state that the work was dangerous,"' and that the employment was without the consent of the parent."* § 768. Evidence. The evidence in an action by a parent for injury to his minor child may cover the relationship of the parent and child,®' the expense of supporting and caring for the child while ill,*^ and the due care of the parent and child,®^ and the character of the danger- ous occupation.*^ Evidence is not admissible of an action for the same injury by the child unless expenses of care were claimed in it,** or that plaintiff depended for a living on the wages of the child."" The burden is on the plaintiff to prove all the allegations of the complaint,*' and the burden is on the defendant to prove emanci- pation.*' The unexplained presence of a young child in a danger- ous place makes out a prima facie case of n^ligence in the parents." § 769. Questions for Jury. The question of the parent's negligence is for the jury, in most eases,*' and so is the question of to be a member of the family) ; Bin- ford V. Johnston, 82 Ind. 426, 42 Am. E. 508; Larson v. Berquist, 34 Kan. 334, 8 P. 407, 55 Am. R. 349; Webb T. Southern Ey. Co., 104 S. C. 89, 88 S. E. 297; Markus v. Thompson, 51 Tex. Civ. App. 239, 111 S. W. 1074; Woodward Iron Co. v. Curl, 153 Ala. 205, 44 So. 974 (employment and its dangerous nature). 57. Birmingham Ry., Light & Power Co. V. Chastain, 158 Ala. 421, 48 So. 85; Reaves v. Anniston Knitting Mills, 154 Ala. 565, 45 So. 702. 58. Woodward Iron Co. v. Curl, 153 Ala. 205, 44 So. 974. 59. Reaves v. Anniston Knitting Mills, 154 Ala. 565, 45 So. 702; Inter- state Coal Co. v. Trivett, 155 Ky. 795, 160 S. W. 731 ; Hetzel v. WasBon Piston Eing Co., 89 N. J. Law, 205, 98 A. 308. 60. Woodward Iron Co. v. Cook, 124 Ala. 349, 27 So. 455 (consent of em- ployment presumed) ; Brunke v. Mis- emancipa- Bonri & K. Telephone Co., 112 Mo. App. 623, 87 S. W. 84; Dean v. Ore. R. & Nav. Co., 38 Wash. 565, 80 P. 842. 61. Sawyer v. Sauer, 10 Kan. 519. 62. Cameron v. Duluth-Superior Traction Co., 94 Minn. 104, 102 N. W. 208; Woeckner v. Erie Electric Motor Co., 182 Pa. St. 182, 37 A. 9S6. 63. HuntsviUe Knitting Mills v. Bntner (Ala.), 76 So. 54. 64. Sondheim v. Brooklyn Heights R. Co., 73 N. Y. S. 543, 36 Misc. 339. 65. Gulf, C. & S. F. Ry. Co. v. John- son, 99 Tex. 337, 90 S. W. 164. 66. King V. Eloding, 18 Ga. App. 280, 89 S. E. 451 (that child given dangerous work without parent's con- sent) . 67. Memphis Steel Const. Co. v. Lis- ter, 138 Tenn. 307, 197 S. W. 902. 68. Conway v. Monidah Trust, 52 Mont. 244, 157 P. 178. 69. HuntsviUe Knitting Mills v. 841 INJURY TO CHILD. § 770 tion,'" but the child's competency to care for himself should not he so submitted when the father testifies that the child is com- petent and the child evidently appears such.'* § 770. Damages for Injuries or Enticement. In suits for injuries, such as for enticement, the measure of damages applied is liberal, though the rule is somewhat conflicting in different States. It is a general principle that where servants are enticed away, or forcibly abducted, the jury may award ample compensation for all the damage resulting from the wrongful act." A parent can recover damages for the prospective value of the services of a young child permanently injured or killed by an act of negligence ; '" and a reasonable expectation of pecuniary benefit is favorably considered where the parent is old and infirm.'* Medical expenses for the care and cure of the child, with the expense of nursing, are of course recoverable. And even the ex- pense of the mother's sickness, which was caused, in an extreme case, by the shock to her feelings, has been treated as a proper item of special damage. "* So, it would seem, are the costs of prosecut- ing the suit.'* But the parent cannot recover for lacerated feel- ings, as well as for other injuries personal to the child, as in seduction suits." But local statutes will sometimes affect the Butner (Ala.), 76 So. 54; Koeraen v. But see Williams v. Hutchinson, 3 Newcastle Electric St. Ey. Co., 138 Comst. 314. For the loss of service Pa. 30, 47 A. 851; Jones v. United for the remainder of the period of mi- Traction Co., 201 Pa. 346, 50 A. 837; nority, a parent may usually recover Muhlhause v. Monongahela St. By. if such loss necessarily result; while Co., 201 Pa. 244, 50 A. 940 ; Herron v. if the injury continue beyond that City of Pittsburg, 204 Pa. 509, 54 A. period further right is usually in the 311, 93 Am. St. E. 798; Trow v. child. Traver v. Eight Avenue E., 4 Thomas, 70 Vt. 580, 41 A. 652. Abb. App. 423; McDowell v. Georgia 70. Shawnee-Teeumseh Traction Co. E., 60 Ga. 320; Houston E. v. Miller, V. Campbell (Okla.), 155 P. 697. 49 Tex. 322; Hussey v. Eyan, 64 Md. 71. Henderson v. Detroit Citizens' 426. Street Ey. Co., 116 Mich. 368 74 N. 74. Duckworth v. Johnson, 4 H. & W. 525, 4 Det. Leg. N. 1205. N. 653; Franklin v. Southeastern E., 72. Gunter v. Astor, 4 Moore, 15 ; 1 3 H. & K. 311. Addison, Torts, 704; Lumley v. Gye, 75. Ford v. Monroe, 20 Wend. 210. 2 El. & Bl. 216} Magee v. Holland, 3 Such damages appear exceptional. Dutch. 86. Harford Co. v. Hamilton, 60 Md. 340. 73. Supra, % 760 ; Drew v. Sixth 76 Wilt v. Vickers, 8 Watts, 327. Avenue E. E. Co., 26 N. T. 49 ; Ford 77. Pa. E. E. Co. v. Kelly, 31 Pa. V. Monroe, 20 Wend. 210; Hoover v. St. 373; Sawyer v. Sauer, 10 Kan. Heim, 7 Watts, 63 ; Franklin v. South- 519 ; Cowden v. Wright, 24 Wend. eastern B. E. Co., 3 Hurl. & Nor. 211. 429. But see, as to battery of a child. § 771 PAKENT AND CHILD. 842' question of damages liere as well as the right of action itself.'* The damages resulting from losis of services may be estimated, although they cannot be exactly computed, and a reasonable verdict therefor will be allowed to stand," and may include permanent loss of services during minority if proved,'" and the increase in the value of the child's services -mth. age may be considered,*^ but not injury to the child's health,*^ or loss of the child's society.'* Where the injury results in death the parent may, in the absence of statute, recover only for the loss of the child's services between the injury and his death.'* The damages recoverable for enticing a child away from her mother and keeping her in a school are compensatory only and not punitive," and one who entices a minor daughter to work for him without the parent's consent is not liable for her seduction by his son, as this is too remote to be assessed as damages." § 771. Damages for Seduction. As to the amount of damages, cases of seduction stand on a peculiar footing. The ground of action is the loss of services;, yet the rule is well established that neither this nor the medical expenses, snch as her lying-in, are all that the parent can recover. Lord Ellenborough, in his day, declared the principle inveterate, and not to be shaken, that in estimating damages the jury might go beyond the mere loss of service, and give damages for the dis- tress and anxiety of mind which the parent had sustained in being Klingman t. Holmes, 54 Mo. 304. See 82. Western TJnion Telegraph Co.^ also Rooney v. Milwaukee Chair Co., v. Erwin (Tex. Civ. App.), 147 S. W. 65 Wis. 397. 607. 78. M'Carthy v. Guild, 13 Met. 291 ; 83. BiTmingham Ey., Light & Power Kennard t. Burton, 25 Me. 39. Co. v. Baker, 161 Ala. 135, 49 So. 79. Vanderveer v. Moran, 79 Neb. 755; Werbolovsky v. New York & 431, 112 N. W. 581; Blackwell v. Boston Despatch Express Co., 117 N. Jlemphis St. Ey. Co., 124 Tenn. 516, T. S. 150, 63 Misc. 329. See Simpson 137 S. W. 486. V. Mills Mfg. Co., 104 S. C. 78, 88 S. 80. Wennell v. Dowson, 88 Conn. • E. 288 (penalty only recovered). 710, 92 A. 663; Travers v. Hartman, 84. Verlinde v. Michigan Cent. E. 92 A. 855; Orr v. Wahlfeld Mfg. Co., Co., 165 Mich. 371, 130 N. W. 317, 17 179 111. App. 235; Shawnee Gas & Det. Leg. N. 1238; Chaloux v. Inter- Electric Co. V. Hunt, 32 Okla. 368, national Paper Co., 75 N. H. 281, 73:^ 122 P. 673; Northern Texas Traction A. 301. Co. V. Crouch (Tex. Civ. App.), 202 85. Magnuson v. O'Dea (Wash.), S. W. 781 (only during minority). 135 Pae. 640, 48 L. E. A. (N. S.) 81. Shawnee Gas & Electric Co. v. 327. Motesenboeker, 41 Okla. 454, 138 P. 86. Stewart v. Strong, 20 Ind. App. 790. 44, 50 N. E. 95. 843 INJTJEY TO CHILD. § 771 deprived of the society and comfort of his child." So must the situation in life and circumstances of th« parties be taken into con- sideration in estimating the household disgrace.*' A parent cannot maintain an action for injury to feelings by reason of the betrayal of a daughter still living. There is no precedent for an action by one person for injuries to feelings as a consequence of injury to another still living. The only basis for this action is in case of loss of services, and v^here this is lacking there can be no recovery.*® In an action by the father for seduction of the daughter exem- plary damages may be allowed in some States, although not speci- ally provided by the statute, and even though the defendant may be liable to exemplary damages by the daughter also. The rule of " double jeopardy " has no application to civil cases. A verdict of $6,000 exemplary damages was supported. Damages may also include a doctor's bill for attendance on the daughter, and the time lost by the daughter at the ordinary wages of household help even though there was no evidence that the father had anything for the daughter to do during the period.*" 87. Irwin v. Dearman, 11 East, 23. 88. Andrews v. Askey, 8 Car. & P. 9. ' ' In point of form, ' ' observes Lord Eldon, "the action only purports to give a recompense for loss of service; but we cannot shut our eyes to the fact that it is an action brought by a parent for an injury to ter child, and the jury may take into their consider- ation all that she can feel from the nature of the loss. They may look upon her as a parent losing the com- fort, aa well as the service, of her daughter, in whose virtue she can feel no consolation; and as the parent of other children whose morals may be corrupted by her example." Bedford V. McKowl, 3 Esp. 120. And see Eobinson v. Burton, 5 Harring. 335; Klopfer V. Bromme, 36 Wis. 372; Pence v. Dozier, 7 Bush, 133; Dain V. Wyckoff, 18 N. Y. 45; "White v. Murtland, 71 111. 250. See further, on this subject, White v. Campbell, 13 Gratt. 573; Sellars v. Kinder, 1 Head, 134; 1 Addison, Torts, 703; Eager v. Grimwood, 1 Exch. 61; Eichardson v. Fonts, 11 Ind. 466; Eeed v. Williams, 5 Sneed, 580; Eus- sell V. Chambers, 31 Minn. 54; Voa- sel V. Cole, 10 Mo. 634 ; 2 Kent Com. 205, 9th ed. n.; Bigelow on Torts. Exemplary damages have been denied where the daughter's willing mis- conduct appeared. Comer v. Taylor, 82 Mo. 341. And where before con- finement the daughter marries ano- ther man, the father's damages may prove merely nominal. Humble v. Shoemaker, 70 la; 223. Under sta- tutes changing the old rule, the pa- rent's suit is allowed to embrace not only the loss of peace and comfort to the family, but the effect upon the character and prospfeets of the girl herself. Stoudt v. Shepherd, 73 Mich. 588. 89. Kaufman v. Clark (La.), 75 So. 65, L. E. A. 1917E, 756. 90. Eeutkeimer v. Nolte (la.), 161 N. W. 290, L. E. A. 1917D, 273. f 773 PARENT AND CHILD. 844: CHAPTER IX. Sectioit 772. Leading Duties of Parents Enumerated. 773. Duty of Protection; Defence, Personal and Legal. 774. Duty of Education. 775. Duty of Providing a Trade or Profession. 776. Religious Education. 777. Parent 's Liability for Torts of Child. 778. Liability for Acts of Insane Child. 779. Parent's Liability for Child's Acts in Driving Automobile, etc. § 772. Leading Duties of Parents Enumerated. Three leading duties of parents as to their legitimate children are recognized at the common law : first, to protect ; second, to edu- cate; third, to maintain them. These duties are all enjoined by positive law; yet the law of the natural affections is stronger in upholding such fundamental obligations of the parental state.'^ § 773. Duty of Protection; Defence, Personal and Legal. First, as to protection : that cover or shield from evil and injury which is afforded by the parent. This duty the stronger owes to the weaker, and especially does the father owe it to his child, so long as the latter remains comparatively helpless. This obligation may be shifted in time, as age adds to the strength of the one and the infirmities of the other. The duty of giving personal care and protection to children is distinct from the duty of support.'^ It is to the credit of our civilization that the natural duty of protection is rather permitted than enjoined by any municipal laws ; nature in this respect " working so strongly," to use the forcible words of Blackstone, " as to need rather a check than a spur."'* The strongest illustration of protection at the common law which is furnished by this learned writer, — that of a father who revenged his son's injury by going near a mile and beating the offender to death with a cudgel, — though affording a questionable legal principle, as he puts it, shows at least what the verdicts of our juries are constantly confirming, that the sympathies of human 91. 1 Bl. Com. 447; 2 Kent Com. 92. Courtright v. Courtright, 40 189; Taylor's Civil Law, 383; Puff. Mich. 633. b. 4, c. 11, §§ 4, 5. 93. Bl. Com. 450. 845 THE pabent's duties. § 774 tribunals are with him who defends his own offspring, even when his zeal outruns his discretion.'* A parent may, by the common law of England, maintain and uphold his children in their lawsuits, without being guilty of the legal crime of maintaining quarrels.*" He may also justify an assault and battery committed in defence of the persons of hia children.'* So where a father finds a man attempting to rape his daughter he has a right to protect her by any means in his power and if he kills the assailant in good faith on an appearance of neces- sity he will be acquitted although it may afterwards appear that he might have prevented the crime by other means.'^ The culpability of the father going to the defence of his son is measured not by the intent of the son in engaging in a conflict but by the intent with which the father acted. So where the father in ignorance of the circumstances comes upon a fight between the son and another in which his son is apparently in imminent peril of his life and the father kills the son's opponent it would be on his part a homicide in self-defense although the son was originally the aggressor in the fight.'" On the other hand, as we shall hereafter see, where he is cruel and devoid of natural affection, his children may be taken from hia personal keeping; nay, he may be subject to pimishment for his own misconduct." The doctrine of parental protection seems to have required little or no special judicial discussion in modem times. § 774. Duty of Education. The second duty of parents is that of education ; a duty which Blackstone pronounces to be far the greatest of all these in im- portance.^ This importance is enhanced by the consideration that the usefulness of each new member of the human family to society depends chiefly upon his character, as developed by the training he receives in early life. Not the increase of population, but the increase of a well-ordered, intelligent, and honorable population is 94. See 1 Hawk. P. C. 83, cited in 96. 1 Hawk. P. C. 131; 1 Bl. Com. 1 Bl. Com. 450; and n. by Coleridge, 450. citing Fost. 294, and 2 Ld. Eaym. 97. Litchfield v. State, 8 Okla. Grim. 1498, in opposition to Blackstone 'g re- Eep. 164, 125 Pae. 707, 45 L. B. A. mark. (N. S.) 153. 95. 2 Inst. 564. But a parent is 98. Mayhew y. State (Tex.), 144 S. not bound t» employ counsel to de- W. 229, 39 L. E. A. (N. 8.) 671. fend the suits of his minor children. 99. See post, § 801. Hill V. Childress, 10 Terg. 514. 1. 1 Bl. Com. 450. § 774 PARENT AND CHILD. 846 to determine the strength of a State ; and, as a civil writer observes, the parent who suffers his child to grow up like a mere heast, to lead a life useless to others and shameful to himself, has conferred a very questionable benefit upon him by bringing him into the world,^ and the education should be consistent with the station in life of the parties.' Solon excused the children of Athens from maintaining their parents, if they had neglected to train them up in some art or profession.* So intimately is government concerned in the results of early training, that it interferes, and justly, too, both to aid the parent in giving his children a good education, and in compelling that education, where the parent himself, and not the child, is delinquent in improving the opportunities offered.' But schemes of education, in cases of disagreement among guard- ians, are still prescribed in chancery.* So the rights of the guard- ian as judge of the place of his ward's education have been sometimes enforced in equity against the ward's own wishes.' The father's educational scheme has been permitted to put restrictions on the intercourse of a daughter with her own mother.* Courts of chancery, in short, have jurisdiction to superintend the education of infant children. Yet the English courts seem to have acted rather for the purpose of securing the control of the child's educa- tion to the proper person, or upholding the father's wishes, than to make independent regulations of their own according to the child's welfare.* In this respect, as well as in enforcing the disabilities of the law against Roman Catholics and dissenters, chancery was manifestly influenced by considerations of national policy. Should such a subject come before IJhe courts of this country, 2. Puff. Law of Nations, b. 6, c. 2, case, an "infant" went to Oxford S 12. contrary to the orders of his guar- 3. In re Putney, 114 N. T. S. 556, dian, who wished him to study at 61 Misc. 1; School Board Dist. No. Cambridge. The court sent a mes- 18, Garvin County, v. Thompson, 24 senger to carry him from Oxford to Okla. 1, 103 P. 578. Cambridge; and upon his repeatj^ 4. Plutarch's Lives; 2 Kent, Com. disobedience there went another tam 195. to carry him to Cambridge, qwim to 5. Under existing statutes a parent keep him there. See Macphers. Inf. may be prosecuted for neglecting to 121, 141. educate his child. School Board v. 8. Agar-Ellis v. Lascelles, 24 Ch. D. Jackson, 7 Q. B. D. 502. 317. 6. CampbeU v. Maekay, 2 Myl. & Cr. 9. See 2 Story, Eq. Juris., § 1342 ; 34; Macphers. Inf. 555. Wellesley v. Wellesley, 2 Bligh (N^ 7. Tremain's Case, Stra. 168; Hall S.), 124. V. Hall, 3 Atk. 721. In Tremain's 84:7 THE parent's duties. § 776 tLey might fairly take a different course, more in accordance with American legislation. Our municipal laws in general provide for the infant's educational wants ; and this whole jurisdiction is one of great embarrassment and responsibility.^" But there are several decisions concerning the right of public school boards to issue gen- eral regulations concerning the admission, suspension, or dismissal of pupils, or the subjects of study. And in some States the father of a child may apply for mandamus against the board to compel them to admit to the public school his child, who has been unlaw- fully excluded." § 775. Duty of Providing a Trade or Profession. The parent's duty, according to some authorities, also extends to providing the children with a profession or trade as well as a suitable education. How far the duty of competent provision extends, must depend upon the condition and circumstances of the father. Kent observes that this duty is not susceptible of municipal regulations, and is usually left to the dictates of reason and natural affection." § 776. Religious Education. The father has the absolute right at common law to determine the religious education of his children.^* Questions of parental, and more particularly religious, education arise often in English law under the will of the father. It is laid down as the rule, that where one has left no direction in his will as to the religion in which his children are to be educated, it will be presumed that his wishes were that they shall be educated in his own religion." 10. See the topic of Custody, s«pro, upon a local domicile in the strict § 740 et seq.; Jones v. Stockett, 3 sense. School Dist. of Waukesha v. Bland, 409. Thayer, 74 Wis. 48; Tale v. West 11. People T. Board of Education, Middle School Dist., 59 Conn. 489. 19 Mich. 400; Sheibley t. School Dis- 12. 2 Kent, Com. 202. It is within triet, 31 Neb. 552, maintaining a the police power of the legislature to father's right to make a reasonable prohibit a parent from putting a selection for his own child from the young female child upon exhibition as studies prescribed. See further. Bur- a professional dancer, on considera- dick V. Babcock, 31 la. 562; Hodg- tions of injury, whether to the child 's kins v. Eockport, 105 Mass. 475. A health or morals. People v. Ewer, pupil cannot be expelled from a pub- 141 N. T. 129. lie school because of mere negligence, 13. Ex parte Flynn, 87 N. J. Eq. neither wilful nor malicious. Holman 413, 100 A. 861. V. School District, 77 Mich. 605. A 14. In re North, 11 Jur. 7, V, C. minor child's right to local public Bruce; Macphers. Inf. 555; Camp- «ducation is not entirely dependent bell v. Mackay, 2 Myl. & Cr. 34. § 776 PARENT AND CHILD. 848 Further, that the religious education of an infant of fifteen will not be changed unless the infant -wishes it^^' But no regard is paid to the wishes of a child ten years old.^* The father is allowed to designate the plan of education to be followed witb respect to bis children after his death. And While, as Lord Cottenham has observed, he bas no power to prescribe a particular religion to his child, yet be bas indirectly the power of effecting his object by the choice of a guardian.^' Tbe English courts of chancery bave indeed exercised consider- able jurisdiction over the education of minor wards : a topic wbicb very seldom engages the attention of American tribunals. While tbe penal laws against Koman Catholics were in full force in England, it was considered tbe duty of the court of chancery, by analogy to tbe statute law, to see that all infants under its control should be brought up in tbe Protestant religion.^' A case is reported in which Lord Cowper ordered a Eoman Catbolic girl to be sent to a Protestant school, evidently with a view to ber con- version,^" With tbe progress of religious toleration came a dif- ferent rule of practice; and it is now a question whether, under any ciTcumstanoes, tbe court would interfere with the testamentary guardian, and the infant's religion as designated by tbe father; indeed, according to many late decisions, tbe Koman Catbolic faith appears in this respect as much favored as tbe Protestant.^" And tbe courts are disposed to uphold tbe father in bis reasonable views against tbe mother's religious convictions, or those of tbe cbildren tbemselves.^^ Our various constitutional provisions for religious 15. Witty V. Marshall, 1 Tou. & C. And see Eegina v. Clarke, 7 El. & B. N. C. 68. 186; Hawksworth v. Hawksworth, L. 16. Eegina v. Clarke, 7 El. & B. E. 6 Ch. SS?; Clarke, Me, 21 Ch. D. 186. And see Hawksworth v. Hawks- 817. But cf. Agar-Ellis v. Laacelles, worth, L. E. 6 Ch. 539. L. E. 10 Ch. D. 49; D 'Alton v. D'Al- 17. Talbot V. Earl of Shrewsbury, ton, L. E. 4 P. D. 87. 18 li. J. 135; Macphers. Inf. 126. 21. In several late English cases, See also HiU v. Hill, 8 Jur. (N. S.) where the young children, under the 609. And see Eraser, Parent & Child, mother's influence, were likely to be- 82. come either Eoman Catholics or athe- 18. Macphers. Inf. 123 ; Lady Teyn- ists, chancery interposed to carry out ham's Case, 9 Mod. 40. the father's wishes and bring them un- 19. Hill V. Eilkln, 2 P. Wms. 5. And der Protestant influence ; and this, not- eee Blake v. Leigh, Ambl. 306; Jac. withstanding a voluntary or judicial 264, n; In re Bishop, Eeg. Lib. 1774, separation of the parents which -had cited in Macphers. Inf. 124. given the mother the children's cus- 20. Talbot V. Earl of Shrewsbury, tody. Agar-Ellis v. Lascelles, L. E. 18 L. J. 125, per Lord Ch. Cottenham. 10 Ch. D. 49 ; Besant, In re, L. E. 11 849 THE parent's duties. § 777 freedom produce, moreover, local disputes on the subject of religious or race instruction in the public schools.^* In this country the Constitutions of most of the States contain guarantees of religious freedom which have affected the attitude of the courts and made them remarkably timid about laying down any set rules on tihe subject. It has been held that the father alone has the right to decide his child's religion,"* or that no rule will be laid down but each case considered on its merits for the good of the child,^* or that religious distinctions and questions will not be con- sidered by the court at all."° There are very few decisions on the subject in this country as the questions involved have not usually been considered important enough to carry to courts of last resort.*' § 777. Parent's Liability for Torts of Child. As to the parent's liability to action, where the child is the injur^ ing party. The question Is sometimes asked, how far a father is responsible in damages for the torts and frauds of his infant child. We have already seen that the husband's responsibility for his wife's injuries at the common law is founded upon his right, by marriage, to her property. Very different is the relation of parent and child, where, it is now plain, tIhe father has little more than, the right to claim his child's wages, so far as the infant's property is concerned.*'^ Yet some have been misled into the belief that the two cases are entirely analogous; and they would hold the father liable for his son's wrongful acts, as a husband for the wife's. It is held in Pennsylvania that the father may be sued In trespass for an injury committed by his son, when they ride together In the Ch. D. 508. In D 'Alton v. D 'Alton, 23. Hernandez v. ThomaB, 50 Fla. L. E. 4 P. D. 87, both parents had 523, 39 So. 641. been Roman Catholics, and the father 24. Purington v. Jamrock, 195 Mass. afterwards became a Protestant. And 187, 80 N. E. 803. see In re Scanlan, Infants, 40 Ch. D. 25. Jones v. Bowman, 13 Wyo. 79, 200. 77 Pac. 43ff. 22. As to studying languages, see 26. See learned article on the re- Board of School Comm'rs of Indian- ligious education of children in 29 apolis V. The State, 139 Ind. 14. As Harvard Law Eeview, 485. See Mat- to religious instruction and the use ter of MeConnon, 60 Misc. 22, 112 of the Bible, see Hysong v. School N. T. Supp. 590. District (1894), Pa.; State v. District 27. Nor can the parent make the in- Board, 76 Wis. 177. Separate schools fant child's real estate itself liable, /or white and colored children may even for a necessary debt of his own be rightfully established. Lehew v. creation. Cox v. Storts, 14 Bnsh Brummell, 103 Mo. 546. 602. 54 § 777 PAKENT AND CHILD. 850 father's team, and tte act is committed in tlie latter's presence.^' Whether the principle can be safely carried further is extremely doubtful. In Missouri, on the other hand, and with better reason, it is decided that a father is not responsible for an independent assault committed by his infant son, without his sanction ; not even though the child was known by him to be of a vicious temper.^' The same rule, with more caution, has been applied in New York, in a case where it was shown that a minor daughter, in her father's absence, and witlhout his authority or approval, wilfully set his dog, not ordinarily a vicious animal, upon the plaintiff's hog, which was thereby bitten and killed.^" But for injuries occasioned by the infant with his father's direct sanction or participation, or while in the due course of employment by the father, the latter is held answerable to others. Thus, a minor son, under a contract with his father to clear a parcel of land, did it so negligently as to destroy a neighbor's property by fire ; and for this the parent was held to damages at the neighbor's suit.*^ In Wisconsin, a father was held liable for injury sustained by a passer-by whose horse took fright, because he carelessly per- mitted his young children to fire pistols and shout on the highway and thus contributed to the injury.^^ And while a parent is not liable for an independent trover and conversion committed by his child, he becomes liable where he learns of it and continues to enjoy the benefit of the wrong. ^'"^* For all such injuries (subject to the usual scope of negligent performance as another's agent or servant) an infant is answer- 28. Strohl V. Levan, 39 Pa. St. Beaton, 37 Tex. 406 ; Smith v. Daven- 177. And see Lashbrook v. Patten, 1 port, 45 Kan. 423. The want of Duvall, 316. parental knowledge or sanction here 29. Baker v. Haldeman, 34 Mo. appeared. For the peculiar rule of 21?; Paul V. Hummel, 43 Mo. 119. the Louisiana code as to parental lia- 30. TifEt V. Tifft, 4 Denio, 175. biUty in such cases, see Marionneaux And see McManus v. Crickett, 1 East, v. Bougier, 35 La. Ann. 13, 891; Mul- 106 ; Foster v. Essex Bank, 17 Mass. lina v. Blaise, 37 La. Ann. 92. 479. The responsible occupation of 31. Teagarden v. McLaughlin, 86 premises on which vicious animals are Ind. 476. kept is sometimes a legal element. 32. Hoverson v. Noker, 60 Wis. 511. Nor was the father held liable in Evidence was admitted that the father damages where his son set another's knew his children had thus miscon- property on fire, in Edwards v. Crume, ducted before. Cf. Hagerty v. Pow- 13 Kan. 348. And see Baker v. Mor- ers, 66 Cal. 368. ris, 33 Kan. 580. See also Paulin v. 33-34. Hower v. TJlrich, 156 Pa. St. Howser, 63 111. 312; Chandler v. 410. «51 THE PARENT S DUTIES. § 777 able at law, out of bis own estate ; at least, if lie is old enough to have known better.*^ But how as to the parent's liability? For that is the present issue. The principles of the Roman law cannot be cited to much advantage, in support of such liability, on the score of agency, or otherwise; since under that system the child was little better than the slave of his fathor ; and even as to slaves, it was considered at the time of the Institutes that it would be very unjust, when a servant did a wrongful act, to make the master lose anything more than the servant himself.*" The modern rule of the civil law, in European countries, is to make every person respon- sible for injuries caused by the act of persons and things under his dominion ; but a father incurs no responsibility for the act of his minor child, if he can prove that he was not able to prevent the act which gives rise to the liability.*' On the whole it may be stated as a rule of our common law that 35. Campbell v. Stakes, 2 Wend. 137; Tpost, § 1028 et seq.; Smith v. Davenport, 45 Kan. 423. 36. Smith's Diet. Greek and Boman Antiq., "Novalis Actio." Inst. lib. 4, tit. 8, by Saunders. 37. Civil Code Trance, art. 1384; Cleaveland v. Mayo, 19 La. 414. See Baker v. Haldeman, 24 Mo. 219. This point received some attention in a modem English case, where the father of a young man, about seven- teen or eighteen, was sued for tres- pass and false imprisonment. The plaintiff was property-man at a thea- tre, of which the defendant was les- see. The young man, minor son of the defendant, acted as his father's treasurer. The plaintiff, in his char- acter of property-man, presented to the treasurer an account, containing some wrongful items of disbursement. The defendant, conceiving this to be an intentional fraud on the part of the plaintiff, dismissed him from his employment. His son thereupon, without consulting the father, indis- creetly caused the plaintiff to be ap- prehended by a policeman, and taken to the station on a charge of obtain- ing money by false pretences. The plaintiff went before a magistrate, and wa3 remanded, but was ultimately discharged. After the remand, the son told his father what he had done ; the latter did not prohibit him from proceeding in the matter, but said that as the son had begun it, he would not interfere. The court decided that these facts showed neither a previous authority nor a subsequent ratification by the father, sufficient to render him liable for his son's conduct, and on that ground dismissed the suit. Moon V. Towers, 8 C. B. (N. S.) 611. The opinions of the several judges in this case, though expressed by way of dicta, exhibit considerable reluctance to hold the father liable, as a tres- passer, for his son's torts. Says Willes, J., approved by Byles, J., ib.; Williams, J., dub.: "The tendency of juries, where persona under age have incurred debts or committed wrongs, to make their relatives pay, should, in my opinion, be checked by the courts. No man ought as a general rule, to be responsible for acts not his own." And says the Chief Jus- tice: "Suppose the son had knocked the plaintiff down, and the father had- said, ' I think it served him right, ' would that be such a "ratification of the son's act as to make the father liable as a trespasser?" Per Erie, C. J., ib. As to the injuries of a § 778 PAEENT AND CHILD. 852 a father is not liable in damages for the torts of his child, com- mitted without his knowledge, consent, participation, or sanction, and not in the course of his employment of lihe child, A parent is not liable as such in this country for the torts of his minor child in the absence of evidence of authority express or implied,^* but may be if the acts were done under his direction"' or with his knowledge.*" § 778. Liability for Acts of Insane Child. Parents of an insane person are not liable for his acts in the absence of negligence of the parents in caring for him,*^ If the condition of mind of an adult son mentally incompetent is such that he is dangerous or that danger to others might reasonably be expected from his acts it is the duty of the parent while the son is in his custody to use such measures of restraint and control as would result in rendering it impossible for him to have possession of a weapon. This is on the same theory that the owner of a domestic animal is answerable in damages for injury done by that animal when its vicious nature is known to the ovraer. But evi- dence that the son's only overt act of violence had been committed servant, and his master's liability, App. 676, 111 8. W. 596; Britting- see Master and Servant, infra, §§ ham v. Stadiem, 151 N. C. 299, 488-491. 66 S. E. 128; McCarthy v. Heiael- 38. Parker v. Wilson, 179 Ala. 361, man, 125 N. T. S. 13, 140 App. 60 So. 150 ; Chastain v. Johns, 120 Div. 240 ; Muller v. Barker, 90 N. T. Ga. 977, 48 S. E. 343, 66 L. E. A. 8. 388 (forged check) ; Herndobler v. 958; Harris v. Jones, 87 S. E. 713; Eippen, 75 Ore. 22, 146 P. 140; Fan- Sehumer v. Register, 12 Ga. App. 743, ton v. Byrum, 26 S. T>. 366, 128 N. 78 S. E. 731; Wilkins v. Barnes, 11 W. 325; Eitter v. Thibodeaux (Tex. Ga. App. 350, 75 S. E. 361; Arkin v. Civ. App.), 41 8. W. 493; Lessoff v. Page (111.), 123 N. E. 30; Kitchen Gordon (Tex. Civ. App. 1909), 124 S. V. Weatherby, 205 HI. App. 10; Dick W. 182; Klapproth v. Smith (Tex. V. Swenson, 137 111. App. 68; Pabn Civ. App.), 144 S. W. 688; Mopsikov V. Ivorson, 117 111. App. 535; Malm- v. Cook (Va.), 95 8. E. 426 (slander) ; berg V. Bartos, 83 HI. App. 481; Kumba v. Gilham, 103 Wis. 313, 79 Lemke v. Ady (Iowa), 159 N. W. N. W. 325; Taylor v. Seil, 130 Wis. 1011; Zeeb v. Bahnmaier (Kan.), 176 32, 97 N. W. 498. P. 326; Mirick v. Svichy, 74 Kan. 715, 39. Harrington v. Hall (Del. Super. 87 P. 1141; Barry v. Same, Id.; 1906), 63 A. 875. Paulsey v. Draine, 9 Ky. Law Rep. 40. Stewart v. Swartz, 106 N. E. 693, 6 S. W. 329 ; Miller v. Heche, 719 ; Johnson v. Glidden, 11 8. D. 237, 111 La. 143, 35 So. 491; Winn v. 76 N. W. 933, 74 Am. St. E. 795. HaKday, 69 So. 685; Hays v. Hogan, 41, Whitesides v. Wheeler, 158 Ky, 273 Mo. 1, L. E. A. 1918C, 715, 200 121, 164 8. W. 335; Bollinger v. S. W. 286; Bassett v. Riley, 131 Mo. Eader, 153 N. 0. 488, 69 S. E. 487. 853 THE parent's duties. I 779 twelve years before is insufficient to charge the parent with such knowledge or liability.*^ § 779. Parent's Liability for Child's Acts in Drivng Automobile, etc. An injured party may recover on account of the parent's neg- ligence in caring for the child for placing in his hands a dangerous instrumentality which he was not fitted to use, as an automobile*' or a gun.** There is a conflict of authority on the question whether a father is liable for the negligence of his minor child in driving an auto- mobile which the father has furnished for him. Some cases hold that the father is liable on the theory that he has furnished the car for the pleasure of his family and therefore must be responsible for their driving*^ while other courts have taken the view that the father is not liable unless the son is driving on the parent's busi- ness and that the mere fact that the father permits a capable child to use his car for his own pleasure does not imply that the father has undertaken the occupation of entertaining the son and made him his agent in this business.** The father may be of course liable if he permits an incompetent child to run his car. It seems to be settled that an automobile is not such a dangerous agency that the father should be liable for intrusting it to the child.*' In some States the parent is liable for the negligence of his child driving the parent's automobile where the car is supplied by the parent for the use of the family and the father allows the son to drive it,** but 42. Whitesides v. Wheeler, 158 Ky. 53 L. E. A. 789, 96 Am. St. R. 475; 121, 164 S. W. 335, 50 L. E. A. (N. Sutton v. Champagne, 141 La. 469, 75 S.) 1104. So. 209; Souza v. Irome, 219 Mass. 43. Gardiner v. Solomon (Ala.), 75 273, 106 N. E. 998; Charlton v. Jack- So. 621 ; Crittenden v. Murphy (Cal. son, 183 Mo. App. 613, 167 S. W. 670. App.), 173 P. 595; Walker v. Klopp, 45 Tarnham v. Clifford (Me.), 101 ggr Neb. 794, 157 N. "W. 962; Taylor Atl. 468. V. Stewart, 172 N. C. 203, 90 S. E. 46. Blair v. Broadwater (Va.), 93 134 ; Linville v. Nissen, 162 N. C. 95, 8. E. 632, L. E. A. 1918A, 1011. 77 S. E. 1096; Salisbury v. Crudale 47. Blair v. Broadwater (Va.), 93 (E. I.), 102 A. 731. Contra, Wat- S. E. 632, L. E. A. 1918A, 1011. kins V. Clark (Kan.), 176 P. 131. 48. Griffin v. Russell, 144 Ga. 275, Contra, Warren v. Norguard (Wash.), 87 S. E. 10; Anthony v. Kiefner, 96, 174 P. 7. See Stephens v. Stephens, Kan. 194, 150 P. 524, L. E. A. ig'lSF, 173 Ky. 780, 189 S. W. 1143; Schultz 876; Smith v. Jordan, 211 Mass. 269, T. Morrison, 154 N. Y. S. 257, 91 97 N. E. 761; TJphoff v. McCormiek, Misc. 248 (judg. affd., 156 N. T. S. 139 Minn. 392, 166 N. W. 788; Eay- 1144. See Fleming v. Kravitz, 260 ser v. Van Nest, 125 Minn. 277, 146 Pa. 428, 103 A. 831. N. W. 1091; Daily v. MaSwell,' 152 44. Meers v. McDowell, 110 Ky. Mo. App. 415, 13 8. W. 351; McNeal 926, 68 8. W. 1013, 23 Ky. Law, 461, v. McKain, 33 Okla. 449, 126 P. 743 § 779, PAKENT AND CHILD. 854 the father is not responsible for the negligence of the son in driving the family automohile on his own business in the absence of evi- dence of agency express or implied/' Where a father had provided his family with an automobile as a means of recreation and amusement, and the son in the use of the car for that purpose is engaged in driving his sister and her friends and negligently injures a third person he is not performing an independent service of his own but is carrying out what within the spirit of the matter was the business of the father, even though the father was ignorant of this particular trip.°" It is settled law that a father is not liable for the tort of a minor child, with which he was in no way connected, which he did not ratify and from which he did not derive any benefit, merely because of the relation of parent and child." He may, however, be liable for the acts of the child when acting as his agent as in driving the family automobile, but not when he took the car without his father's permission on an errand of his own.^^ A mother is not liable for the negligence of her son in driving his automobile when riding as his guest although she did ask him to do an errand for her on the way, which was a mere incident of the trip.^^ Where certain persons borrowed an automobile from the owner to make a trip and invited the owner's son to accompany them and he was driving at the time of the accident the owner is not liable as the son was not at the time his servant engaged in his business.^* The father is not liable for the negligence of the son in driving his car where he had lent the car on the day in question to a third 41 L. E. A. (N. S.) 775; Birch v. 140 Tenn. 217, 204 S. W. 296; Blair Abercrombie, 74 Wash. 486, 133 P. v. Broadwater, 121 Va. 301, 93 S. E. 1020 (opinion modified on rehearing, 632. 135 P. 821); contra, Maher v. Bene- 50. Stowe v. Morris, 147 Ky. 386, diet, 108 N. T. S. 228, 123 App. Div. 144 S. W. 52, Z9 L. E. A. (N. S.) 579; MeFarlane v. Winters, 155 P. 224. 437. 51. Griffin v. Eussell, 144 Ga. 275, 49. Erlick v. Heis, 69 So. 530; 87 S. E. 10, L. E. A. 1916F, 216. Dougherty v. Woodward (Ga. App.), 52. Sultzbach v. Smith (la.), 156 94 S. E. 636 (father's expressions of N. W. 673, L. E. A. 1916r, 228. sympathy and promise to do the right 53. Anthony v. Kiefner, 96 Kan. thing do not amount to ratification) ; 194, 150 Pac. 524, L. E. A. 1915F, Sultzbaeh v. Smith, 156 N. W. 673; 876. Mast V. Hirsh, 199 Mo. App. 1, 202 54. Halverson v. Blosser, 101 Kan. S. W. 275; Lewis v. Steele, 52 Mont. 683, 168 Pac. 863, L. E. A. 1918B, 300, 157 P. 575; Kunkle v. Thompson, 498. €7 Pa. Super. Ct. 37 ; King v. Smythe, 855 THE parent's duties. § 779' party who had without his knowledge persuaded the son to drive for him.'= The liability of a parent for the tort of a child is governed by th« principles of law applicable to the relation of principal and agent and it does not arise out of a mere relation of parent and child. But where the parent is accustomed to leave his automobile unlighted on the street at night and the son knew of it then the father would be liable for the act of the son in doing the same thing upon the ground of an implied sanction to so leave it.°* 55. McFarlane v. Winters (Utah), 349, 132 Pac. 33, 48 L. B. A. (N. S.> 155 Pac. 437, L. E. A. 19-160, 618. 827. 56. Jaquith v. Worden, 73 Wash. § 780 PABENT AND CHILD. 856 CHAPTEK X. pabent's duty of suppobt. Sectiok 780. Duty of Maintenance in General. 781. Father's Support. 782. Mother's Support. 783. Mother's Pension Acts. 784. Ability of Parent to Support Child. 785. Duty of Stepchildren. 786. Value of Parental Education, Support, &c. 787. Liability of Parents to Third Persons in Absence of Agreement. 788. Child as Agent for Parent. 789. Agreements to Support. 790. What Constitutes Support or "Necessaries." 791. Medical Expenses. 792. Funeral Expenses. 793. Maintenance, &c., in Chancery; Allowance from Child's Fortune. 794. Chancery Maintenance ; Out of Income or Principal. 795. When Duty Ceases. 796. Separation or Divorce of Parents. 797. Pleadings and Evidence in Actions for Support 798. English Statute Enforcing Support. 799. American Penal Statutes Enforcing Support. 800. Support by Others as a Defence. 801. Proceedings to Compel Support. § 780. Duty of Maintenance in General. The third parental duty is that of maintenance. It is a plain precept of universal law that young and tender beings should be nurtured and brought up by their parents; and this precept have all nations enforced. So well secured is the obligation of main- tenance that it seldom requires to be enforced by human laws.'" Are we brought into this world to perish at the threshold by suffer- ing and starvation ? No ; but to live and to grow. Some one, then must enable us to do so; and upon whom more justly rests that responsibility than upon those who brought us into being ? Hence, as Puffendorf observes, the duty of maintenance is laid on the parents, not only by Nature herself, but by their own proper act in bringing the children into the world. By begetting them, they have entered into a voluntary obligation to endeavor, as far as in them lies, that the life which they have bestowed shall be sup- ported and preserved."* 57. 1 Kent, Com. 189. 58. Puff. Law of Nations, b. 4, c 11; 1 Bl. Com. 447. 867 DUTY OF SUPPOET. § T81 Maintenance is that support which one person gives to another for hia living. This word, used by common-law writers, corre- eponda with the civil-law term " aliment." °* The obligation on the parent's part to maintain the child continues until the latter is in a condition to provide for his own maintenance; and it extends no further, at common law, than to a necessary support.*" The Roman system carried this obligation so far that it would not afuffer a parent at his death totally to disinherit his child without expressly giving his reasons for so doing.*' And the laws of Athens were to the same purport.*^ Blackstone does not appear to approve of carrying natural obligation so far. And he cites Grotius in support of a distinction which limits the child's natural right to necessary maintenance ; what is more than that, depending eolely upon the favor of parents, or the positive constitutions of the municipal law,*' Coke observes that it is " nature's provision to assist, maintain, and console the child." ** § 781. Father's Support, The father is liable for support to his children, usually by statute in this country,*' but equity will not interfere to force a 59. Cf. Macphers. Inf. 210, and Fraser, Parent & Child, 85. eO. Kent, Com. 190; 1 Bl. Com. 448. 61. Dig. 28, 230; Nov. 115, e. 3. The statutes of some of the United States favor this doctrine to nearly the same extent. A child is not disin- herited, at least by mere omission from the will. 63. 2 Potter, Greek Antiq. 351. 63. Grot. De J. B. et P., I. 2, e. 7, n. 3; 1 Bl. Com. 448. 64. See 2 Kent, Com. 190. 65. Cook V. Echols (Ala. App.), 80 So. 680; In re Guertin's Child, 5 Alaska, 1. In a suit by an adult invalid child against his parents for maintenance, evidence of the latter 's ability to con- tribute to complainant's support was admissible on a preliminary applica- tion for maintenance, costs, and coun- sel fees pendente lite. Paxton v. Pax- ton, 150 Cal. 667, 89 P. 1083; McKeon T. Byington, 70 Conn. 429, Z9 A. 853 ; State v. MiUer (Del. 1902), 3 Penne- will, 518, 52 A. 263; MeConnell v. Bogaert, 208 111. App. 582; Wheeler V. State, 51 Ind. App. 622, 100 N. E. 25; Guthrie County v. Conrad, 133 la. 171, 110 N. W. 454; Bounds Bros. v. MoDaniel, 133 Ky. 669, 118 S. W. 956; Bailey v. Penick (Ky. Super. 1888), 10 Ky. Law, 239; Burrill v. Sermini, 229 Mass. 248, 118 N. E. 331; Lufkin v. Harvey, 154 N. W. 1097; Robinson v. Robinson, 168 Mo. App. 639, 186 S. W. 1032, 154 S. W. 162 ; White v. White, 180 S. W. 1004 ; Walters v. Niederstadt (Mo. App.), 194 S. W. 514; Pinkelstein v. Finkel- stein, 161 N. T. S. 166, 174 App. Div. 416; State v. Langford (Ore.), 176 P. 197; In re Henkel's Estate, 13 Pa. Super. Ct. 337; Memphis Steel Const. Co. v. Lister, 138 Tenn. 307, 197 S. W. 902 ; White v. McDowell, 74 Wash. 44, 132 P. 734 (although mother re- married) ; In re Northcutt, 148 P. 1133. § 782 PARENT AND CHILD. 858 father to support his minor child in. the absence of statutory author* ity as no legal obligation to support is recognized." Where a father abuses his children they may under statute be released from parental control,'^ but this does not release him from the duty to support,*' and although the child has left home this does not revoke an order he has given for support.*' The father's obligation to support must be governed by the law of the domicile of the father. So where an adult son was a pauper living in a jurisdiction where an adult pauper son is entitled to support from his father, but the father lived in a jurisdiction where there is no such obligation the f aither is not bound to support the son.''" § 782. Mother's Support. The mother is not at common law, during the life of the father, bound to support the child,''^ even if the father is imprisoned for crime,'" and the mother can compel the father to support." The mother, however, after the death of the father, becomes the head of the family. She has the like control over the minor chil- dren as he had when living; and she is then bound to support them, if of suflScient ability.'* This we hold to be the rule most conformable to natural justice ; though there are cases and statutes which would seem to exempt her from such obligations.'" A court of chancery will not readily make the support and education of infant children a charge upon the property of their widowed mother, nor upon that of a stepfather who has not undertaken to sitand in place of a father, while their- own means are ample." In 66. Eawlings v. Eawlings (Miss.), 72. Gleason v. City of Boston, 144 83 So. 146; Huke v. Huke, 44 Mo. MasSj 25, 10 N. E. 476. App. 308. See Ailing v. Ailing, 52 N. 73. Alvey v. Hartwig, 106 Md. 254, J. Eq. 92, 27 Atl. 655. 67 A. 132, 11 L. E. A. (N. S.) 678. 67. Hutchinson v. Hutchinson, 124 74. Dedham v. Natick, 16 Mass. Cal. 677, 57 P. 674. 140; Missouri Pac. Ey. Co. v. Palmer, 68. Leibold v. Leibold, 158 Ind. 60, 55 Neb. 559, 76 N. W. 169. 62 N. E. 627; Eankin v. Eankin, 83 75. Whipple v. Dow, 2 Mass. 415; Mo. App. 335. Dawes v. Howard, 4 Mass. 9'7; 2 Kent, 69. McKeon v. Byington, 70 Conn. Com. 191, and cases cited; aupra, § 429, 33 A. 853. 237. 70. Coldingham Parish Council t. 76. Mowbray v. Mowbray, 64 111. Smith (1918), 2 K. B. 9'0. 383. A widow, on her remarriage, is 71. Leake v. J. E. King Dry Goods not liable for the maintenance of a Co., 5 Ga. App. 102, 62 S. E. 729 ; In child by a former husband. Besondy, re Lyons' Estate, 137 N. T. S. 171. Be, 32 Minn. 385. Where a mother See State v. Beslin, 19 Ida. 185, 112 P. has maintained her infant child with- 1053 (mother's duty under statute). out the order of the court, it is held 859 DUTY OF SUPPORT. § 783 such connectioii, again, it is -worth considering whether the child renders any valuable services to a remarried mother or stepfather, or confers a right to such services.'' In general, a married woman is not liable for the support and education of her children during the lifetime of a husband ; and if she renders such support she is entitled, at all events, to an allowance from the estates of the chil- dren,'' or if she dies her estate is not to be charged at the husband's instance." If the father is alive and unable to maintain his child, main- tenance will be allowed without considering the ability of the mother, though she may have a separate income.** § 783. Mother's Pension Acts. The so-called mother's pension acts are upheld in a recent case. A statute authorizing the court to find that children are dependent and permitting them to remain in the custody of the mother, and fixing the amount that the county shall contribute to their support, is valid. The State as parens patriae has the power to assume the custody and control of a child upon the sole ground of the parent's inability to support it. In a state of organized society the rights of the parent are largely subordinate to those of the community, and whenever a breach of the parental trust occurs, no matter from what cause, of such a nature that the fundamental welfare of the child is endangered, at that moment the State's right to assume its guardianship arises. The State has power in the premises when- ever the child's poverty reaches a menacing stage.'^ that, upon his deeeaae, she can claim shaw v. Bradshaw, 1 Euss. 528 ; Pyatt for past maintenance only such sum v. Pyatt, 46 N. J. Eq. 285. But the as will effectually indemnify her for -widowed mother who undertakes to •vrhat she ha3 spent, without reference support the children from her owa to the amount of his fortune. Bruin means cannot be compelled by her V. Knott, 9 Jur. 979. She may ha-ve creditor to charge their fund. Han- made a gift of maintenance to him ford v. Prouty, 133 111. 339. so as to be precluded from claiming 77. Englehardt v. Tung, 76 Ala. anything afterwards by way of rec- 534. ompense. In re Cottrell's Estate, L. 78. Gladding v. Follett, 95 N. T. E. 12 Eq. 566. But in any case the 652. widowed mother is entitled to a rea- 79. Phelps v. Daniel, 86 6a. 363. sonable allowance out of her chil- 80. Macphers. Inf. 224; Haley v. dren's estate for their maintenance, Bannister, 4 Madd. 275. where her own means are limited. 81. State v. Klasen, 123 Minn. 382, ■Wilkes T. Eogers, 6 Johns. 566; Hey- 143 N. W. 984, 49 L. R. A. (N. S.) ward V. Cuthbert, 4 Desaus. 445 ; Os- 597. ■borne v. Van Horn, 2 Pla. 360; Brad- § 786 PAEENT AND CHILD. 860 § 784. Ability of Parent to Support Child. Wliere the inability of the father to comply with an order of the court to support children is hona fide the court cannot compel the father to learn a new trade or to acquire a profession or find employment where his own trade becomes temporarily unprofitr- able/^ but the fact that the father, a mining engineer, is unable to get work in his profession is no defence to a charge for failure to provide for his child, as he should, if he cannot get the kind of work which he wants, do any kind of work he can get.'* § 785. Duty to Stepchildren. In absence of special statutes to the contrary, the father-in-law is not obliged in this country to maintain his stepchildren, and consequently is not entitled to their earnings,** but if a husband adopts a minor child of his wife by a former marriage, and holds him out to the world as his own, he will be liable for his support.*'^ A stepfather may be held liable for necessary medical attention furnished his stepson where the stepson was treated at the home of a relative and the defendant had paid other bills for him, and the boy lived with the defendant before and after the illness and dur- ing the illness the defendant visited the boy and saw the plaintiff attending him there and made no complaint although he had not hired him. Under these facts the jury might well find that the defendant stood in the relation of a parent to the boy and had assumed the obligation of providing him with necessaries.*" § 786. Value of Parental Education, Support, &c. In assessing damages recoverable by a minor child for the death of a parent by the negligence of carriers, courts incline sometimes to consider the reasonable prospective expectation of pecuniary benefit to that child by way of education and support, and physical and moral training, had that parent survived.*' 82. Wells V. Wells (Wash.), 169 111. 461; Bond v. Lockwood, S3 III. Pae. 970, L. E. A. 1918C, 291. 212; § 273, post. 83. Hunter v. State (Okla. Crim. 85. Murray v. Eedell, 21 Hun, 409. Eep.), 134 Pac. 1134, L. E. A. 1915A, See Monk v. Hurlburt, 151 Wis. 41, 564. 138 N. W. 59'. 84. Commonwealth v. Hamilton, 6 86. Monk v. Hurlburt (Wis.), 138 Mass. 253, 275; Freto v. Brown, 4 Ih N. W. 59, 43 L. E. A. (N. S.) 535. 675 ; Worcester v. Marehant, 14 Pick. 87. Tuteur v. Chicago E., 77 Wis. 510; Besondy, Se, 32 Minn. 385; Me- 505; Eailway Co. v. Maddry, 57 Art. Mahill V. Estate of MeMahill, 113 306. 861 DUTY OF SUPPORT. § 787 § 787. Liability of Parents to Third Persons in Absence of Agreement. There can be no doubt that a parent is under a natural obliga- tion to provide necessaries for his minor children. But how that obligation is to be enforced is not so clear.** In fine, either an express promise, or circumstances from which a promise by the father can be inferred, is essential.*' The English decisions are clearly against allowing the child to pledge his father's credit for necessaries to enforce a moral obliga- tion. There must be some contract, express or implied, in order to charge him. If a child be turned upon the world by his father, be can only apply to the parish, and they will compel the father, if of ability, to pay for his support. Says Lord Abinger : " In point of law, a father who gives no authority, and enters into no contract, is no more liable for goods supplied to his son, than a brother, or an uncle, or a mere stranger would be. From the moral obligation a parent is under to provide for his children, a jury are, not unnaturally, disposed to infer against him an admission of a li::^: .L> in respect of claims upon his son, on grounds which war- rant no inference in point of law." *° Yet the rule of principal and agent is to be reasonably enforced ; and in all cases where there appears neither palpable moral delin- quency on the part of the parent, nor evidence of authority actually conferred upon his son, nor a contract by the parent himself or his other agents, the parent cannot be held liable for the general con- tracts of the child. A conditional offer to pay for goods ordered of a stranger by the child must have been clearly accepted in order 88. 1 Bl. Com. 447; Edwards v. 89. MeMillen v. Lee, 78 111. 443; Davis, 16 Johns. 285; In re Evder, 11 Freeman v. Eobinson, 38 N. J. L. 383; Paige, 188; Z Kent, Com. 190. In Tomkins v. Tomkins, 3 Stockt. 517. New York there is some confusion of As to the wife's authority to bind opinion. Cf. Raymond v. Loyl, 10 her husband for the child's neces- Barb. 483, with New York cases, saries, see Schouler, Hus. & Wife, § supra. But the doctrine of an implied 101; supra, §§ 61, 237, 239. One who agency of necessity, upon the minor encourages wife and child to live child 'a pledge, was applied in the apart from the husband and father is late case of Porter v. Powell, 79 la. the less entitled to recover for tho 151, where the minor daughter while necessaries of either. Schnuckle v. liTing away from home, and support- Bierman, 89 HI. 454. ing herself by permission from her 90. Mortimore v. Wright, 6 M. & own earnings, fell sick and incurred a W. 482. And see Shelton v. Sprin- bill for medical attendance without gett, 11 C. B. 452, 20 E. L. & Eq. her father's knowledge. And see 281; Seaborne v. Maddy, 9 Car. & P. Cooper V. McNamara (1894), la. 497. § 787 PAEENT AND CHILD. 862 to constitute sucli ratification as will bind the parent wlio makes it.°^ And in numerous iustances have courts refused to make th© father liable on the ground of an implied agency to the child.'* Under the most favorable aspeot of the infant's right to bind his father as agent, a third person furnishing goods must take notice, at his peril, or what is necessary for the infant according to his precise situation."* And the oral promise of a father to pay a debt of his child not incurred for necessaries, in consideration of the creditors forbearing to sue the child, must be treated as a promise to pay the debt of another, and henoe, under the Statute of Frauds, not enforceable.** There is a strong current of American authority holding the father liable in such cases on the theory of quasi-contract. A par- ent is under a natural duty to furnish necessaries for his infant children ; and if the parent neglect that duty, any other person who supplies them is deemed to have conferred a benefit on the delin- quent parent for which the law raises an implied promise to pay on the part of the parent.'* The liability at common law of the /parent to support the child was not well defined, but in most American States it has been held that the obligation is not merely moral but legal and enforceable as a legal common-law duty. It follows, therefore, that if the parent neglects that duty any other person who supplies such necessary attention to the child is deemed ordinarily to have conferred a benefit on the delinquent parent for which the law raises an implied promise to pay on the part of the parent.'* Parents are bound to supply a minor child with the neoessaries 91. Andrews v. Garrett, 6 C. B. (N. sideration. Freeman v. Bobinson, 38 S.) 262. N. J. L. 383. 92. Eitel V. Walter, 2 Bradf. Sur. This rule of agency is sometimes 287; Eaymond v. Loyl, 10 Barb. 483; allowed to operate for the parent's Bushnell v. Bishop Hill Colony, 28 own benefit as against a third party; III. 204; Tyler v. Arnold, 47 Mich. the child who could not bind himself 564. See Loomis V. Newhall, 15 Pick. being treated as the parent's agent. 159. Darling v. Noyes, 32 la. 96. 93. Van Valkenburg v. "Watson, 13 95. Van Valkinburgh v. Watson, 13 Johns. 480; Gotts v. Clark, 78 111. 229. Johns. 480, 7 Am. Dec. 395; De Brau- Cf. Murphy t. Ottenheimer, 84 111. were v. De Brauwere, 203 N. T. 460,. 39. 96 N. E. 722. 94. Dexter v. Blanchard, 11 Allen, 96. Wallace v. Cox (Tenn.), 188 S. 365. Goods being sold to the minor W. 611, L. E. A. 1917B, eO'O (medi- without the father's knowledge, order, eal services). or consent, his subsequent promise to Where the parental duty is not neg- pay therefor is without binding con- lected there is no liability on the 863 DUTY OF SUPPORT. § T8T of life. Tliey may be held liable to pay for necessaries furnished by a third person to a minor child without their contract or consent where there is an omission of duty on their part to furnish neces- saries, as where the need exists and the parents refuse or n^lect to act, or in case of some special exigency rendering the interfer- ence of the third person reasonable and proper, as in case of illness at a distance from the parental home.'' So where a stranger took a child under an agreement by the father to leave it with the stranger until the child came of age, and the father after a time took the child back in breach of his agreement, the stranger can recover in quantum meruit for maintenance already furnished to the child,'* but a stranger attempting to recover from a father for support to a minor child must prove the father's n^lect to' provide." The father has a right to furnish the support at his own home, and hence a child who leaves his home without good cause cannot pledge his father's credit even for necessaries.^ Whenever a minor son or daughter has left the father's home, the cause should be ascertained; for the disobedience of children is not to be encou:^ aged in any event,^ and the father has also a right to furnish the support in his own way, hence is not liable where the child has father in the absence of express con- 126 N. Y. S. 221, 69 Misc. 472) ; tract. So where a minor son left Loucks v. Dutcher, 112 N. T. S. 269 ; home to attend school contrary to his Snell v. Ham (Tex. Civ. App.), 151 father's wishes the father is not liable S. W. 1077; Gordon v. Potter, 17 Vt. for medical services furnished to the 348. son without his knowledge where in- 1. Glynn v. Glynn, 94 Me. 465; 48 formation of the son's illness could A. 105; Dyer v. Helson, 117 Me. 203, easily have been given to the father. 103 A. 161; Brosius v. Barker, 154 Sassaman v. Wells, 178 Mich. 167, Mo. App. 657, 136 S. W. 18. See, 144 N. W. 478. however, Bradley v. Keen, 101 111. 97. Huffman v. Hatcher, 178 Ky. App. 519. See Miller v. McKinney, 8, 198 S. W. 236, L. E. A. 1918B, 484; 45 111. App. 447. Where parents after Lufkin V. Harvey, 131 Minn. 239, 154 divorce agreed that the father should N. W. 1097, L. B. A. 1916B, 1112. have custody of the minor son, and 98. Gordon v. Wyness, 155 N. T. the latter goes to live with his mother Supp. 162. without good cause or consent, the 99. Smith v. Gilbert, 80 Ark. 525, mother cannot render the father liable 98 S. W. 115; Dumser v. Underwood, for hia son's board against the fa- 68 III. App. 623; Sa3saman v. Wells, ther's refusal. Cushman v. Hassler, 178 Mich. 167, 144 N. W. 478; 82 la. 295. (1911), De Brauwere v. De Brauwere, 2. Raymond v. Loyl, 10 Barb. 483; 96 N. E. 722, 203 N. T. 460 (affirming Angel v. McLellan, 16 Mass. 28; order 129 N. T. S. 587, 144 App. Div. Weeks v. Merrow, 40 Me. 151. 521, which afBrms judgment, 1910, § 788 PAEENT AND CHILD. 864 services performed by a person different from the one authorized by the father.' A claim against a parent for his minor child's necessaries may be outlawed by limitations.* § 788. Child as Agent for Parent. Let us here inquire how far the child may bind his father aa agent. A father is not bound by the contracts or debts of his son or daughter, even for necessaries, as a rule, unless the circum- stances show an authority actually given or to be legally inferred." The principles of agency as between father and child might seem analogous to those which govern the relation of busband and wife ; which last have already been considered at some length. On the one hand, the father should be compelled to discharge his legal and moral obligations as a parent, by providing suitable necessaries; on the other, he should not be prejudiced by the acts of his imprudent child. If, then, the infant child resides at home, it is to be presumed that the father furnishes whatever is necessary and proper for his maintenance; and a proper support being rendered, under such circumstances, a third person cannot supply necessaries and charge the father. So far, all is clear. Wherever the infant ia svb potestate parentis in fact, there must be a clear and palpable omis- sion of duty in this respect, on the part of the parent, to render him chargeable, unless he has conferred actual authority or made express contract.' The converse of this rule has more than once been suggested in our American courts; namely, that where the father abandons his duty, so that his infant child is forced to leave his house, he is liable for a suitable maintenance furnished the child elsewhere.' And upon this doctrine was a Connecticut case based many years ago, where an infant child had " eloped " from 3. SuUivan v. Liggins, 149 N. T. S. 27; Clinton v. Eowland, 24 Barb. 634; 517. Keaton v. Davis, 18 Ga. 457; Gottsv. 4. Pryor v. West, 72 Ga. 140. Clark, 78 111. 22?; Eogers v. Turner, 5. 2 Kent, Com. 193; Cromwell v. 58 Mo. 116. The parent's contract Benjamin, 41 Barb. 558; Gordon v. or failure to supply must be averred Potter, 17 Vt. 348; Pidgin v. Cram, and shown by the claimant. Mo- 8 N. H. 350; Eaymond v. Loyl, 10 Laughlin v. McLaughlin, 159 Pa. St. Barb. 483; Tomkins v. Tomkins, 3 489; Conboy v. Howe, 59 Conn. 112. Stockt. 512 ; Van Valkenburg v. Wat- And ratification by allovdng the child son, 13 Johns. 480; Mortimore v. to wear or consume requires suitable Wright, 6 M. & W. 482; Kelley v. proof. J6. Davia, 49 N. H. 187. 7. Owen v. White, 5 Port. 435, and 6. Tomkins v. Tomkins, 3 Stockt. cases cited in the two preceding notes. 512 ; Townsend v. Bumham, 33 N. H. 865 DUTY OF SUPPOBT, § 788 Ilia fatlier's house for fear of personal violence and abuse ; and his necessary support and education were fumislied by a stranger/ The child may be the agent of the parent as shown by the cir- cumstances,* but the acts of the child do not make the parent liable in the absence of special authority/" and the mere relationship of parent and child does not authorize a presumption of general agency between them/^ although the child's agency as to necesearies may be implied in case of abandonment by the parent.^" A child dealing at a store as a known agent for the parent does not become personally liable although he has come of age/^ but a special power of attorney given by a parent to a child does not authorize the child to make a conveyance to herself of the parent's property.^* The mere relationship of parent and child is not enough to 8. Stanton v. Wilson, 3 Day, 37. But the point decided was a different one. 9. Apgar v. Connell, 140 N. T. 8. 705, 79 Misc. 531; Center v. Bush, 71 N. T. S. 767, 35 Misc. 294 ; A. Alsehu- ler & Sons v. Anderson, 142 111. App. 323; Anderson v. Lemker (la.), 162 N. "W. 7 (father liable to tradesman furnishing goods ■which he. had au- thorized son to order whether trades- man knew of authority and whether or not goods were necessaries). 10. Doyle v. Peerless Motor Car Co. of New England, 226 Mass. 561, 116 N. E. 257; Eishworth v. Moss (Tex. Civ. App.), 191 S. W. 843; Hood & Johnson v. Pelham, Sitz & Co., 5 Ala. App. 471, 59- So. 767. Plaintiff sold a piano to defend- ant's infant son, who did not state that he bought as agent, but merely stated that he had to consult his folks before buying. A receipt for a part payment was issued to the infant in his own name, and plaijitifif took the infant's indi\ddual note for the bal- ance, and brought suit thereon, which he discontinued when learning of the infancy. Defendant had paid for necessary articles for use on his farm bought by the infant son. Held, not to show that the son acted as the agent of defendant in making the 55 purchase, or that plaintiff was justi- fied in assuming that he so acted, pre- cluding a recovery from him for the balance due. Fisher v. Lutz, 146 Wis. 664, 132 N. W. 592; McMahon v. Smith, 121 N. T. S. 736, 136 App. Div. 839 ; Cousins v. Boyer, 100 N. T. S. 290, 114 App. Div. 787; Peacock V. Linton, 22 E. I. 328, 47 A. 887, 52 L. E. A. 192 (tutoring in vacation) ; Hickox V. Bacon, 17 8. D. 563, 97 N. W. 847 ; Cox v. W. A. Chanslor & Son (Tex. Civ. App.), 181 S. W. 560. Where the parent sends the child to a particular dentist and he goes to another, he is a special agent only and the dentist cannot recover. Dumser V. TJnderwood, 68 111. App. 121; Coe V. Moon, 260 111. 76, 102 N. E. 1074; Starcher v. Thompson, 35 S. D. 311, 152 N. W. 99. 11. Mott V. Scholes, 131 N. Y. S. 811, 147 App. Div. 82; Habhegger v. King, 149 Wis. 1, 135 N. W. 166; McDonald v. City of Spring Valley (111.), 120 N. E. 476, 209 HI. App. 7 (parent not agent of child). 12. Pinn v. Adams, 138 Mich. 258, 131 N. W. 533, 11 Det. Leg. N. 552. 13. Emery-Bird-Thayer Dry Goods Co. V. Coomer, 87 Mo. App. 404. 14. In re Acken'g Estate, 144 Ala. 519, 123 N. W. 187. § 789 PAEENT AND CHILD, 866 charge tne parent on contracts not for necessaries entered into by tie child, and some express or implied authority must be shown. So a minor son operating his father's car for his own pleasure who, without fault on his part, injures a boy, has no authority to engage a doctor to attend the boy so as to render tbe father liable for the doctor's fees.^" The son's purchases may be ratified by the father ^° by his- promise to pay for it,^^ but where a son did not assume to act as the agent of the father in a transaction, and be had no authority to act therein, there can be no ratification.^* § 789. Agreements to Support. An agreement by the father to pay another for support of the children is enforceable,'" and such an agreement may bind the father although no specific sum for support is named in it,^" and he is also liable for purchases made by the child with the father's, knowledge and consent.^^ But very slight evidence may sometimes warrant the inference that a contract for the infant's necessaries is sanctioned by the father ; so zealous is the court to enforce a moral obligation where- ever it can. English authority to the same effect is not equally pointed ; ^^ but the American rule is certainly humane and liberal in this respect. Thus, the father is held bound for necessaries, 15. Habhegger v. King (Wis.), 135 21. Auringer v. Cochrane, 225 Mass. N. W. 166, 39 L. K. A. (N. S.) 881. 273, 114 N. E. 355. 16. White V. King, 133 N. Y. S. 962 ; Where children, while members of Poe V. Pevsner, 175 111. App. 394. their father's family, acted for him 17. Smith Y. Church, 5 Hun, 109; in the purchase of necessaries, or Bisbee v. McManua, 239 Mass. 124, where the necessaries were purchased 118 N. E. 192; Wells v. Scofield, 141 by the children without his authority, N. Y. S. 657, 157 App. Div. 8. 'lut were used by members of his 18. Fisher v. Lutz, 146 Wis. 664, household, with his knowledge, or 132 N. W. 592. , where the necessaries were purchased 19. William & Vashti College v. without his authority, but brought to Shatford, 203 111. App. 390; Myers T. his home by his children, and he knew Saltry, 173 S. W. 1138, 163 Ky. 481 the facts, and made no objection (motion to file record denied, Myers thereto, he was liable for reasonable V. Same, 164 Ky. 350, 175 S. W. 626) ; value of the goods. Martz v. FuU- Medlock v. Isaacs, 144 Ky. 787, 139 hart, 142 Mo. App. 348, 126 S. W. S. W. 948; Marks v. Wooster (Mo. 964; Armstrong Clothing Co. v. App.), 199 S. W. 446; Maxwell v. Boggs, 90 Neb. 499, 133 N. W. 1122. Boyd, 123 Mo. App. 334, 100 S. W. 22. Blackburn v. Mackey, 1 Car. & 540; Johnson v. Johnson, 142 N. Y. S. P. 1; Law v. Wilkin, 6 Ad. & El. 781; 416, 157 App. Div. 289. cases of doubtful legal authority, 20. Flugel V. Henschel, 6 N. D. 205, See Macphers. Inf. 514, 515. 69 N. W. 195. 867 DUTY OF STIPPOBT. § 791 ■where te knows tte circumstances, and makes no objection.^' And for the expenses of education and maintenance furnished on hia general consent, and in his negligence.^* So, too, being liable once to a third person, the father may be held liable afterwards by implication, unless his revocation is made clear and consistently adhered to.-° Doubtless any father may contract for supplies, necessary or unnecessary, on his child's account, if he chooses to.'* § 790. What Constitutes Support or " Necessaries." " ^Necessaries " for the furnishing which a tradesman can hold the father include food, clothing,^' washing, medicines, instruction and suitable places of residence. The tradesman must show that the goods were such as children in like condition of life are usually supplies with.^' § 791. Medical Expenses. Maintenance and care include the duty to furnish proper med- ical attendance,^* including even a surgical operation of doubtful advantage which the mother alone ordered.*" The duty of the parent to care for the child involves the duty of procuring for him when seriously ill proper medical attendance, and religious belief 23. Swain v. Tyler, 26 Vt. 9; Unnecessary hats and gowns for Thayer v. White, 12 Met. 343; minors cannot be charged to father Fowlkes V. Baker, 2ff Tex. 135. As without his consent. Auringer t. where he knew that another was Cochrane, 225 Mass. 873, 114 N. E. boarding his minor child with expect- 355. ation of reward. Clark v. Clark, 46 28. Dembinski's Case (Mass.), 120 Conn. 586. Or upon written agree- N. E. 856; Gately Outfitting Co. v. ment with his divorced wife, who re- Vinson, 183 8. W. 133; Cheever v. tains the children. Courtright v. Kelly, 96 Kan. 269, 150 P. 529'. Courtright, 40 Mich. 633. Cf. Bald- 29. Simoneau v. Pacific Electric Ey. win V. Foster, 138 Mass. 449. Co., 159 Cal. 494, 115 P. 320; Leach 24. Thompson v. Dorsey, 4 Md. Ch. v. Williams, 30 Ind. App. 413, 66 N. 149. E. 172 ; Lamson v. Varnum, 171 Mass. 25. Plotts V. Eosebury, 4 Dutch. 237, 50 N. E. 615 ; Sassamen v. Wells, 146; Murphy v. Ottenheimer, 84 HI. 178 Mich. 167, 144 N. W. 478; Des 39. And see Deane v. Annis, 14 Me. Mond v. Kelly, 163 Mo. App. 205, 146 26. Notice to a third person may be S. W. 99; Ketchem v. Marsland, 42 waived afterwards by the parent's N. T. S. 7, 18 Misc. 450 (person with acts. Bailey v. King, 41 Conn. 365. whom child is temporarily residing 26. Bryan v. Jackson, 4 Conn. 288. cannot pledge's father's credit for And see Brown v. Deloach, 28 Ga. dentist's bill which is not a matter 486 • Deane v. Annis, 14 Me. 26 ; Har- of immediate necessity) ; Homeopathic per v. Lemon, 38 Ga. 227. Hospital of Albany v. Chalmers, 157 27. Bisbee v. McManus, 229 Mass. N. T. S. 1000, 94 Misc. 600; Howell 124, 118 N. E. 192 (hats and veils v. Blesh, 19 Okla. 260, 91 P. 893. necessaries). 30. French v. Burlingame, 155 Mo. § 792 PAKENT AND CHILD. 868 is no excuse for failure to do so. The correct rule requires medical attendance in sucli a manner and on such occasions as an ordinarily prudent person solicitous for the welfare of his child and anxious to promote its recovery would provide. Religious belief can never he an excuse for omitting any legal duty.^^ Gross neglect of a parent to procure medical attention to a child whose feet are frozen, as a result of which neglect the child died, is murder. The fact that defendant was a laboring man with no means to pay for medical attendance is no defence where his neigh- bors were all ready to help him if called upon and the city fur- nished a competent city physician and the defendant made no request to anyone for over ten days, at the end of which time it was too late to save the child's life.^° § 792. Funeral Expenses. A father is, in general, liable for the decent funeral expenses of Lis deceased minor child,^^ or even of an adult child who is incom- petent.^* A father is liable for the burial expenses of his minor son, incurred without his express authority, if the son had been living with the father at the time of his death; and there is no liability if the son leaves the home of the father voluntarily and without fault on the part of the father. Where, however, the father drove the son from home, he had lost the right to his earn- ings, but there would be no emancipation which would relieve the father from the duty of providing necessities for the son in the event of his illnes'S and the father remains liable for his burial expenses.^" At common law a father is bound only to give his child decent burial. There is no rule of law prescribing what is decent burial. A poor man commits no crime where he clothes the corpse and puts it in a paper box and digs a grave in a wood lot and buries it there without religious ceremony of any kind. He is left to deter- mine what kind of a casket shall be used and what, if any, cere- App. 548, 134 S. W. 1100. Contra, 33. P. J. Hunycutt v. Thompson, Detwiler v. Bowers, 9 Pa. Super. Ct. 159 N. C. 29, 74 S. E. 628; Gobber v. 473. Empting, 129 N. T. S. 4. See Sulli- 31. People V. Pierson, 176 N. T. van v. Horner, 41 N. J. Eq. 299; 201, 68 N. E. 243, 63 L. E. A. 187; Bair v. Eobinson, 108 Pa. St. 247. Owens V. State (Okla. Crim. Eep.), 34. In re Van Denburgh, 164 N. T. 116 Pac. 345, 36 L. E. A. (N. S.) S. 966, 178 App. Div. 237. 633. 35. P. J. Huneycutt & Co. v. Thomp- 32. Stelir v. State, 92 Neb. 755, 139 son (N. C), 74 S. E. 628, 40 L. E. A. N. W. 676, 45 L. E. A. (N. S.) 559. (N. S.) 488. 869 DUTY OF SUPPOKT. § 793 monies should be had. He also commits no crime in refusing to invite his wife's relatives or friends, as they had no legal right to he present. There is also no law requiring a religious ceremony.** § 793. Maintenance, &c., in Chancery; Allowance from Child's Fortune. We pass from maintenance under statute to chancery main- tenance, a topic considered in connection with education. Main- tenance as ordered by courts of equity, or allowed in settlement of a trust account, has grown into a topic of considerable magnitude, especially under the English system. The rule is, that where an infant has property of his own, and his father is dead, or is not able to support him, he may be maintained and educated as may be fit, out of the income of property absolutely his own, by the person in whose hands the property is held; and a court of equity will allow all payments made for this purpose, which appear upon investigation to have been reasonable and proper.^^ As a general rule, the father must, if he can, maintain as well as educate his infant children, whatever their circumstances may be; and no allowance will be made him out of their property while his own means are adequate for such purposes,*' and especially not where 36. Seaton v. Comm., 14? Ky. 498, Nunnelly's Guardian v. Nunnelly, 180 149 S. W. 871, 42 L. E. A. (N. S.) Ky. 131, 201 S. "W. 976; Clay v. Clay, 211. 27 Ky. Law, 1020, 87 S. W. 807 ; Mil- 87. Macphers. Inf. 213; 2 Story, liken v. Deming, 15 Ky. Law, 332; Eq. Juris., § 1354; Williama v. Wil- Burba v. Richardson, 14 Ky. Law, lianiB (Ala.), 81 So. 41; Cooley v. 233; In re Wilber's Estate, 57 N. T. StringfeUow, 164 Ala. 460, 51 So. S. 942, 27 Misc. 53; In re Davis' Es- 321; State v. Layton (Del. Super. tate, 90 N. Y. S. 244, 98 App. Div. 1834), 1 Har. 324; First Nat. Bank 546, 184 N. T. 299, 77 N. E. 259; In T. Greene (Ky. 1908), 114 S. W. 322; re JeflErey's Estate, 137 N. T. S. 168; Funk's Guardian v. Funk, 130 Ky. Exchange Banking & Trust Co. v. 354, 113 S. W. 419; Commonwealth v. Finlfty, 73 S. C. 423, 53 S. E. 649; Lee, 120 Ky. 433, 86 8. W. 990, 27 HoUingsworth v. Beaver (Tenn. Ch. Ky. Law, 806, 120 Ky. 433, 89 S. W. App. 1900), 59 S. W. 464. 731, 28 Ky. Law, 596 ; Eiley v. Eiley 'b It is the duty of a father to support Adm'r 11 Ky. Law, 859; (1906), his minor children out of his own es- Peters v. Scoble, 28 Ohio Cir. Ct. E. tate, though they have some property 541 (judgment affirmed, In re Peter 's of their own. United States Fidelity Estate (1907), 76 Ohio St. 564, 81 & Guaranty Co. v. Hall (Tex. Civ. N. E. 1193) (stepmother). See Coler App.), 173 S. W. 892; Macphers. Inf. V.' Callahan, 174 N. T. S. 504. 154, 219, Wellesley v. Beaufort, 2 38. In re Harris, 16 Ariz. 1, 140 P. Euss. 28 ; Butler v. Butler, 3 Atk. 60 ; 825; Eowe v. Eaper, 23 Ind. App. 27, 2 Kent, Com. 191; Darley v. Darley, 54 N. E. 770, 77 Am. St. E. 411; 3 Atk. 399; Cruger v. Heyward, 2 Cox's Guardian v. Storts, 77 Ky. 502; Desaus. 94; Matter of Kane, 2 Barb. § 793 PAEENT AND CHILD. 870 tbe child's services rendered to the parent were equal in value to the cost of maintenance,^' and where the family is living on land belonging to the minor child this fact should be considered.*' And the strict rule of the common law regarded the parent as without legal right to reimbursement for his outlay in this direction. But if the father is unable to maintain his children, the court of chancery will order maintenance for them out of their own prop- erty,*^ and where a child marries and leaves the parent's home recovery may be had by the parent if the child later returns and lives with him.*^ And where the question turns upon the father's ability, maintenance is given, not only in case of his bankruptcy or insolvency, but whenever it appears that he is so straitened in his circumstances that he cannot give the child a maintenance and education suitable to the child's fortune and expectations.** The amount of such fortune, as well as the situation, ability, and cir- cumstances of the father, will be taken into account by the court in all such cases. And where a father has himself made no charge for maintaining his infant children, the court will not make it for him in order to benefit his creditors.** The estate of the child cannot be charged with services rendered on the credit of the father, the child having no estate at the time.*' Courts now look with great liberality to the state of facts in each particular case of this kind before them. Thus, there are prece- dents in the English courts where the father had a large income, Ch. 375; Addison v. Bowie, 2 Bland, 433, 89 S. W. 731, 28 Ky. Law Eep. 606; Harland's Case, 5 Eawle, 323; 596; Bell v. Dingwell, 91 Neb. 699, Myers v. Myers, 2 McCord, Ch. 255; 136 N. W. 1128. Tompkins v. Tompkins, 3 C. E. Green, 40. Commonwealth v. Lee, 120 Ky. 303; Tanner v. Skinner, 11 Bush, 120; 433, 86 S. W. 990, 27 Ky. Law Eep. Buckley v. Howard, 35 Tex. 565; Ela 806, 120 Ky. 433, 89 S. W. 731, 28 v. Brand, 63 N. H. 14; Dessenger Ky. Law Eep. 596. Case, 39 N. J. Eq. 227; Kinsey v. 41. 2 Kent, Com. 191; Macphers. State, 98 Ind. 351; Beardsley v. Inf. 220. Hotehkiss, 96 N. Y. 201; Bedford v. 42. Bell v. Moon, 79 Va. 341. Bedford, 136 111. 354. As to liability 43. Buckworth v. Buckworth, 1 Cox, in cultivating a plantation, owned in 80; Macphers. Inf. 220; Newport v. common by father and child, see Sue- Cook, 3 Ashm. 332; Matter of Kano, cession of Trosclair, 34 La. Ann. 326. 2 Barb. Ch. 375; Lagger v. Mutual 39. Leake v. Goode, 96 S. W. 565, Loan Co., 146 111. 283 ; Bedford v. 29 Ky. Law Eep. 793; Same v. Bedford, 136 111. 354. Ehodes, 29 Ky. Law Eep. 793, 96 S. 44. Beardsley v. Hotehkiss, 96 N. W. 566; Hamilton's Adm'r v. Einey, T. 201. ' 140 Ky. 476, 131 S. W. 287; Common- 45. Gaston v. Thompson, 129 Ga. wealth V. Lee, 120 Ky. 433, 86 S. "W. 754, 59 S. E. 799. 990, 27 Ky. Law Eep. 806, 120 Ky. SYl DUTY or SUPPOET. § 793 and yet was allowed for the maintenance of his infant children, they having an income still larger ; *° though the increasing liberal- ity of the courts in that country is now chiefly exhibited in their construction of written directions for maintenance now so common in deeds of settlement and other instruments, by which property is secured to the infant.*^ In this country there are many in- stances where the father has been allowed for his child's main- tenance, though not destitute. As in a case where the father was guardian of his children, labored for their support, and had been put to increased expense by the death of their mother.*^ And again, where his resources were very moderate, and the two chil- dren, young ladies, had a comfortable income between them/" So where the father was poor and disabled, and his daughter lived with him/" Chancery in all such cases endeavors to pursue the course which is best calculated to promote the permanent interest, welfare, and iappiness of the children who come under its care. "And these," says Chancellor Walworth, " are not always promoted by a rigid economy in the application of their income, regardless of the habits and associations of their period of minority." °^ In other words, to liberally educate and make due use of such social advantages as the child's own means permit is incumbent upon every judicious parent, since each child should be trained with reference to his own opportunities; and hence a child with fortune should not be straitened in his bringing up because the parent is without one. One may maintain suitable to his own condition in life, while it is fair that his children should be supported according to theirs."* The father may be allowed for the expenses of past maintenance and education, if special circumstances exist; not otherwise, ac- 46. 2 Kent, Com. 191; Jervois v. And see Godard v. Wagner, 3 Strobh. Silk, Coop. Eq. 52, 2 Story, Eq. Juris., Eq. 1; Newport v. Cook, 2 Asbm. 332; f 1354 et seq.; Greenwell v. Green- Otte v. Becton, 55 Mo. 39; Trimble Tvell, 5 Ves. 194; Hosts v. Pratt, 3 v. Dodd, 2 Tenn. Ch. 500; Holtzman "Ves. 730; Ex parte Penleaze, 1 Bro. v. Castleman, 2 MacArthur, 555; C. C. 387, n. Baines v. Barnes, 64 Ala. 375. Cf. 47. See Maephers. Inf. 221-223; MeKnight v. "Walsh, 23 N. J. Eq. Heyaham v. Heysham, 1 Cox, 179. 136, 296. And see Allen v. Coster, 1 Beasl. 201. 51. Matter of Burke, 4 Sandf. Ch. 43. Harring v. Coles, 2 Bradf. Sur. 619. 3^9_ 52. See Haase v. Eoerschild, 6 Ind. 49 Matter of Burke 4 Sandf. Ch. 67; Sparhawk v. Sparhawk's Ex'r, 617.' ■ 9Vt. 41. 50. Watts V. Steele, 19 Ala. 656. § 793 PAEENT AND CHILD. 872 mording to the English rule of the present day.°* But the father's non-residence, and consequent inability to make a seasonable appli- cation for maintenance, is held a special circumstance to justify such allowance.'* While the old rule was to make no allowance for past maintenance, that rule, with the increase of wealth and liberal living, has been greatly relaxed in modern times. In this country, too, as to retrospective allowance, chancery does not appear to be very strict as concerns the parent, though special circum- stances should always be chosen for making it.'° Every such case must depend on its own facts. We apprebend that, both in Eng- land and America, maintenance would be allowed the parent from the estate of a full-grown child only on proof of some contract."* A father, even if he be not in needy circumstances, may main- tain his children out of any fund which is duly vested in him for that express purpose."' One may also contract that certain prop- erty shall be applied to tbe maintenance and education of his chil- dren, in which case also the contract may be enforced in his favor, without regard to the question of ability; and on this ground provisions for mainitenance in an antenuptial settlement have been construed in favor of the husband and father."* But it is clear, from the cases, that where the fund is given as a mere bounty, notwithstanding a provision for maintenance, the father, if of ability, must support the child; "° and this principle is extended to the father's postnuptial and voluntary settlement upon his chil- dren as distinguished from antenuptial contracts.^" This will not prevent a court from construing such provisions in a father's favor, where the facts show that he ought, on general principles, to receive 53. 2 Story, Eq. Juris., Eedf. ed., E. 13 Eq. 566; infra, ch. 5; Otte v. § 1354a; Carmichael v. Hughes, 6 E. Beston, 55 Mo. 99. L. & Eq. 73; per Lord Crauworth; 57. Macphers. Inf. 220; Hawkins lEx parte Bond, 2 Myl. & K. 439; v. Watts, 7 Sim. 199; Andrews v. Brown v. Smith, L. E. 10 Ch. D. 377. Partington, 3 Cox, 223 ; Kendall v. 54. Carmichael v. Hughes, 6 E. L. Kendall, 60 N. H. 527. & Eq. 71. And see Stopford v. Lord 58. Mundy v. Earl Howe, 4 Bro. Canterbury, 11 Sim. 82; Bruin v. C. C. 224; Stoeken v. Stoeken, 4 Sim. Nott, 1 Phill. 572; Simon and Others 152; Macphers. Inf. 220; Eansome v. V. Barber, 1 Tamlyn, 22. Burgess, L. E. 3 Eq. 773. 55. Matter of Kane, 2 Barb. Ch. 59. Hoste v. Pratt, 3 Ves. 729; 375; Matter of Burke, 4 Sandf. Ch. Hamley v. Gilbert, Jae. 354; Myers 619; Myers v. Meyers, 2 MeCord Ch. v. Myers, 2 MeCord, Ch. 255; Jones 214; Trimble v. Dodd, 2 Tenn. Ch. v. Stockett, 2 Bland, 409. 600; Otto V. Pecton, 55 Mo. 99. 60. In re Kennisoni's Trusts, L. K. 56. See In re Cottrell's Estate, L. 12 Eq. 422. 873 DUTY OF SUPPOET, § 794 assistance.*^ It will presently appear tliat the parent's right to his child's services becomes, as the child grows older, a partial offset to the cost of support; and there can be no justice in letting the father receive the child's useful services at home, or his earnings, and charge an allowance out of the child's property at the same time, regardless of that pecuniary advantage.'^ § 794. Chancery Maintenance ; Out of Income or Principal. Courts of chancery, following a well-known principle, usually restrict the extent of a child's maintenance to the income of his property."* But where the property is small, and the income in- sufficient for his support, the court will sometimes allow the capital to be broken ; ** though rarely for tlie purpose of a child's past maintenance when his future education and support will be left thereby unprovided for.*' We have assumed, in the cases already considered, that there was some fund in which the infants had an absolute right or inter- est. Where the interest is merely contingent the rule is necessarily strict.** Maintenance cannot be allowed to infants out of a fund which, upon the happening of the event contemplated by the tes- tator in the bequest of the fund, will not belong to the infants but to some other person.*' The right to charge a child's fund as 61. See Andrews v. Partington, 2 253; Osborne v. Van Home, 2 Pla. Cox, 223, commented upon in Hoste 360; Newport v. Cook, 2 Ashm. 332. r. Pratt, 3 Ves. 729. See In re Coe's Trust, 4 Kay & J. "Where the trustee for an infant, in 1&9 ; Matter of Bostwiek, 4 Johns. Ch. the exercise of rightful discretion, 100; Donovan v. Needham, 15 N. J. has paid over to the father, at his 193. The terms of the trust may im- request, certain sums of money out of pose special restrictions. McKnight the income of the trust property, the v. Walsh, 23 N. J. Eq. 136. father being a bankrupt, it is held 65. See Otte v. Bepton, 55 Mo. 99; that no promise can be implied under Cox v. Storts, 14 Bush, 502. such circumstances, on the part of the 66. Ex parte Kebble, 11 Ves. 604. father, to repay to the trustee the sums 67. li.; Errat v. Barlow, 14 Ves. of money thus applied when he after- 202; Turner v. Turner, 4 Sim. 430; wards becomes able to do so; there Matter of Davison, 6 Paige, 136. should be something to show an ex- Where the father has permitted the press promise of repayment. Pearee child to squander sums paid regularly V. Olney, 5 K. I. 269. See In re for maintenance, he cannot claim re- Stables 13 E. L. & Eq. 61. imbursement. Smith v. Smith, 3 Dem. 62. Livernois, Be, 78 Mich. 330. (N. T.) 556. As to rule of procedure 63. 2 Story Eq. Juris., § 1355; in securing maintenance, see Macphers. Macphers. Inf. 252. Inf. 214 et seq., and works on equity 64. 76. • Barlow v. Grant, 1 Vem. procedure. Maintenance is further 255- Bridge v. Brown, 2 You. & C. C. considered under Guardiaft and Ward, 181; Ex parte Green, 1 Jac. & W. post, § 337. § 795 paee:n't and child. 874 guardian for his education or maintenance in any ease is at the most a discretionary right and not to be compelled." § 795. When Duty Ceases. The parent's obligation to support ceases when the child comes of age,*° as where a child has attained full age, the presumption is that he will bind himself by his own contracts. Under the latter circumstances, a mere request to furnish necessaries does not bind the father, though the son be living with him ; while it is very clear that the father may even thus bind himself by his own independent promise.'"' In general, the legal obligation of the father to main- tain his child under the common law ceases as soon as the child is of age, however wealthy the father may be, unless the child be- , comes chargeable to the public as a pauper.'^ If a parent gives a child to another, who takes the child, this releases the parent's duty to support,'* but an agreement between the father and another by which the other person for consideration agrees to support the children does not relieve the father as between himself and his children." Furthermore, for supplies furnished the infant after the parent's 68. Reynold V. Reynold, 92 Ky. 556; Andrew v. De Breta, 1 Ld. Eaym. Hanford v. Prouty, 133 111. 339. 699. The father, having a fair capi- 69. Voras v. Eosenberry, 85 111. tal, may be liable under statute for App. 623 ; Haynes v. Waggoner, 25 the support of his adult pauper daugh- Ind. 174; Studebaker Bros. Mfg. Co. ter as of "sufficient ability," even V. De Moss, 62 Ind. App. 635, 113 though his income be less than his ex- N. E. 417, 111 N. E. 26. penses and his health infirm. Tem- One's duty to care for his child pleton v. Stratton, 128 Mass. 137. does not necessarily terminate when 72. Davis v. Davis, 85 Ind. 157. the child becomes an adult, and the Contra, Murphy v. Eiecks (Cal. App.), parent must support a helpless adult 180 P. 15. child, if able to do so. Grain v. Mai- 73. Hohenadel v. Steele, 237 111. lone, 130 Ky. 125, 113 S. W. 67; Com- 229, 86 N. E. 717; Edelson v. Edel- monwealthv. "Willis (Ky. Super. 1886), son, 179 Ky. 300, 200 S. W. 625; J 7 Ky. Law Rep. 677; In re Willis' Brice v. Brice, 50 Mont. 388, 147 P. Estate, 158 N. Y. S. 985, 94 Misc. 164; Rennie v. Rennie, 95 A. 571; 29; Stidmore v. Skidmore, 145 N. T. Wright v. Leupp, 70 N. J. Eq. 130, S. 939, 160 App. Div. 594. 62 A. 464; Hazard v. Taylor, 78 N. 70. Boyd V. Sappington, 4 Watts, T. 8. 828, 38 Misc. 774; Sanger Bros. 247; Patton v. Hassinger, 69 Penn. v. Trammell (Tex. Civ. App.), 198 St. 311. And see Mills v. Wyman, 3 S. W. 1175 (fact that father has Pick. 207; Wood v. Gills, Coxe, 449; furnished mother with money for Norris v. Dodge's Adm'r, 23 Ind. children does not relieve him from 190; Kernodle v. Caldwell, 46 Ind. duty of support). See In re Stowell, 153; White v. Mann, 110 Ind. 74. 159' N. T. S. 84, 172 App. Div. 684. 71. 2 Kent, Com. 192 ; Parish of St. 875 DUTY OF SUPPORT. § T96 death, the parent's executor or administrator should not be sued; it is rather the infant's new guardian, and the fund accruing to the child on distribution of the parental estate, to which the claim- ant must look for indemnity.'* § 796. Separation or Divorce of Parents. In a state of voluntary separation, the husband prima facie, and not the wife, is liable for the support of children living with her ; and if the wife be justified in leaving her husband's house and taking the child with her, she may pledge his credit for the child's necessaries as well as her own, so long as he neglects to make reasonable effort to regain the child''s custody.'^ Where a father abandons his minor children and thereby compels the divorced wife to support them, the law implies a promise on the part of the father to pay for the nurture of his children by their mother.''* Where the husband absconds and leaves the wife and four minor children, whom she supports for four years until she obtains a divorce, she can recover fi-om the husband the ex- pense of supporting them up to the time of her divorce. The obligation of the father being personal, it must be enforced where he can be found or property belonging to him can be attached. But since the obligation does exist, and exists in favor of the mother, the law is not so impotent as to leave her remediless.^' But circumstances, even where the husband deserts his wife, may repel the idea of an agency thus conferred upon her.'* If the wife leaves her husband without cause, taking the minor child with her, she has apparently no right as agent to pledge her husband's credit for the child's necessaries, whatever might be the husband's legal duty of providing for the child's support." For 74. Bums T. Madigan, 60 N. H. 41; Filler v. Fitler, 33 Penn. St. 50; 197. Slight evidence Tvill support the Burritt v. Burritt, 29 Barb. 124. allegation of a promise by a father to 77. Rogers v. Rogers, 93 Kan. 114, pay for his child's support. Jordan 143 Pae. 410, L. R. A. 1915 A, 1137. V. Wright, 45 Ark. 237, p. 380. 78. As where he deserted before the 75. Rumney v. Keyes, 7 N. H. 571 Kimball v. Keyes, 11 Wend. 32 Walker v. Laighton, 11 Fost. Ill child was born. Lapworth v. Leach, 79' Mich. 16; Ramsey v. Ramsey, 121 Ind. 215. Gill V. Read, 5 R. I. 343. And see 79. "In Bazeley v. Forder, L. E. Reynolds v. Sweetser, 15 Gray, 78; 3 Q. B. 559, it was conceded that a Grunhut v. Rosenstein, 7 Daly, 164. wife had no power to charge her hus- 76. Beigler v. ChamberUn (Minn.), band for the support of a child, un- 165 N. W. 128, L. R. A. 1918B, 215; less she was living apart from him contra, Hancock v. Merrick, 10 Gush. justifiably, and her power to do it in § 796 PAEENT AND CHILD, 876 the motter has her own moral and legal obligation to support, nourish, and educate her own children to the extent of her ability and means. And while in case of either separation or divorce, without orders of custody, the obligation in general continues as before, it may be materially affected by the special circumstances of each case; while a judicial award of children to the mother should be presumed to carry with it a transfer of parental duties, as well as of parental rights.'" But a father, as against the public and his children, cannot, it is often held, escape the duty of pro- viding for the children's support; not even if they remain with their mother after divorce.'^ And although a wife by her fault may forfeit her own claim to support, she cannot forfeit that of the children.*^ The courts to-day are considering the good of the childxen rather than protection of the father, and it seems to be the view of the that case was put on the ground that the reasonable expenses of the child were part of her reasonable expenses. But assuming it to be true, as laid down in several more or less consid- ered dicta, that the law of Massachu- setts imposes a duty upon a father to support his children, and that, when he wrongfully turns his wife and children out of doors, his liability for the latter arises out of that duty (Eeynolds v. Sweetser, 15 Gray, 78; Brow V. Brightman, 136 Mass. 187), still all the cases show very plainly that, when the wife leaves without cause, taking her child with her, the fact that her husband does not at- tempt to compel her to give up the custody of the child does not of it- self authorize her to bind him for its support." Holmes, J., in Baldwin V. Foster, 138 Mass. 449. The father is liable for support although the wife leaves him without just cause. Birdsong v. Birdsong (Ky.),206 S. W. 22. 80. Brow V. Brightman, 136 Mass. 187. Stanton v. Wilson, 3 Day, 37, appears to carry the mother's right much further; but its authority is questionable. We must admit, how- ever, that in a late English case, pre- senting a strong state of facts, a wo- man who lived apart from her hus- band for sufficient cause, having with her, against her husband's will, their child, of whom a court had given her the custody, was allowed (Cockbum, C. J., dis.) to pledge the husband's credit for the child's reasonable ex- penses ; she having no adequate means of support. Bazeley v. Forder, L. B. 3 Q. B. 559. See as to a child's right to bind as agent, ante, § 788. 81. Courtright v. Courtright, 40 Mich. 633 ; Conn v. Conn, 57 Ind. 323 ; Thomas v. Thomas, 41 Wis. 229; Welch's Appeal, 43 Conn. 342; Buck V. Buck, 60 111. 105. Local statutes affect this question considerably; and the award of alimony is a matter of judicial discretion in divorce suits. When custody of a child is given to the mother on her divorce from the child's father, the latter, having no right to the child's services, is free from liability to the mother for the child's maintenance. Husband v. Hus- band, 67 Ind. 583. Especially if the mother remarries, and Tiey g^c.mid him- 1 band father. Johnson v. Ousted, 74 Mich. 437, 121 Ind. 215. 82. But alimony decrees may regu- late such matters. Ex parte Gordon, 95 Cal. 374. 877 DUTY OF SUPPORT. § 796 most recent cases on the subject that divorce does not change the father's liability to support. Hence the father will still be liable for the support of his minor child altbougb the parents have sep- arated and the mother has taken the children,'* but a mother-in-law who has caused the separation by interference cannot recover against the father for support she gave the children.'* In a state of separation or divorce, too, she has her own obliga- tions toward the minor child in her separate custody. The statute of Elizabeth, to which we have already referred, expressly includes the mother. And since the tendency of the day is to give thej mother a more equal share in the parental rights, it follows that she should assume more of the parental burdens. It is neverthe- less clear that the courts show special favor to the mother, as they should ; and if the child has property and means of bis own they will rather in any case charge the expenses of his education and maintenance upon such property than force her to contribute ; '* but a divorced woman to whom the custody of the child has been awarded may be liable for their support primarily.'* It seems to be the weight of authority that a wife who obtains a divorce and the custody of her child, the decree being silent as to its maintenance, can recover from the husband the expense of caring for the child after the divorce.'^ The same result is reached 83. Shields v. O'Reilly, 68 Coim. Bro. C. C. 338. And see Lanoy v. 256, 36 A. 4?; Eogers v. Eogers, 93 Dutchess of Athol, 3 Atk. 447; Ex Kan. 114, 143 P. 410; McGarvey's parte Petre, 7 Ves. 403; Macphers. Guardian v. MeGarvey's Adm'r, 163 Inf. 224; Beasley v. Magrath, 2 Sch. Ky. 242, 173 S. W. 765; contra, Brow & Lef. 35; Pyatt v. Pyatt, 46 N. J. V. Brightman, 136 Mass. 187; Assman Eq. 285; Anne Walker's Matter, Cas. V. Assman, 179 S. W. 957; Ahrens v. temp. Sugd. 299. Mother's discretion Ahrens (Okla.), 169 P. 486; Stock- overruled. 7n re Roper 's Trusts, L. E. well V. Stockwell, 87 Vt. 424, 89 A. 11 Ch. D. 272. 478. See O'Brien v. GaUey-Stock- 86. Ellis v. Hewitt, 15 Ga. App. ton Shoe Co. (Colo.), 173 P. 544 693, 84 S. E. 185. (only if father's promise to pay can 87. Bennett v. Robinson, 180 Mo. be implied); Cowls v. Cowls, 3 Gilm. App. 56, 165 S. W. 856; Winner v. 435; McCarthy v. Hinman, 35 Conn. Shucart (Mo.), 215 S. W. 905; Desch 538. Cf. Harding V. Harding, 144 HI. v. Desch, 55 Colo. 79, 132 P. 60; 589. Hall V. Hall, 141 Ga. 361, 80 S. E. 84. Howell V. Solomon, 167 N. C. 992 Stockwell t. Stockwell, 87 Vt. 588, 83 S. E. 609. 424, 89 Atl. 478; contra, Stone v. 85. In re Ryan's Estate, 174 Mo. Duffy (Mass.), 106 N. E. 595; Bon- App. 202, 156 S. W. 759 (although dies v. Bondies, 40 Okla. 164, 136 divorced) ; n.; Haley v. Bannister, Pac. lOSff. 4 Madd. 275; Hughes v. Hughes, 1 § 797 PAEEIS'T AND CHILD. 878 even though, the husband obtains the divorce where the wife keeps and cares for the child.'" Where the court takes away from the father the care and custody of the children, chancery does not call in aid of their own means the property of the father, and it directs maintenance out of their own fortunes, whatever may be their father's circumstances.'* Local statutes sometimes affect the rule in this country; while in the divorce courts an order of maintenance for children will some- times be made on somewhat the same principle as alimony for the wife, notwithstanding the guilty husband loses their custody.*" § 797. Pleadings and Evidence in Actions for Support. The complaint in an action by a stranger against a father to obtain reimbursement for support must show that the child was at the time under age,*^ but need not allege a special promise to pay,*^ if the allegation is made that the support given was necessary and that the father negligently failed to furnish it,*^ and the burden is on the plaintiff to show that there was a necessity for articles fur- nished without express order of the parent,** but there can be no recovery if it appears that the father sent the son remittances to pay his board,*' and these questions are for the jury to decide.*' There is authority that equity has jurisdiction independently of 88. Schoennauer v. Schoennauer, 77 91. Humphreys v. Bush, 118 Ga. Wash. 132, 137 Pac. 325. The 628, 45 S. E. 911 (failure to allege financial ability of the parties to sup- minority should be set out by plea port the child may be considered. and not by special demurrer). White V. White, 169 Mo. App. 40, 154 92. Bradley v. Keen, 101 111. App. S. W. 872. 519; McCrady v. Pratt, 138 Mich. Where a divorce decree gives the 203, 101 N. W. 227, 11 Det. Leg. N. mother the custody of the child this 529 (burden is on plaintiff to prove relieves the father from his duty to that the father authorized the son to support, but he remains morally bound procure credit for board) . to assist it, and any payments he 93. O'Brien v. Galley -Stockton Shoe makes towards the support of the Co. (Colo.), 173 P. 544; Davis v. child will be presumed as made in ful- Davis, 85 Ind. 157; Lamsou v. Var- filment of this moral duty and can- ,num, 171 Mass. 237, 50 N. E. 615; not be charged against the child's Smith v. Church (N. T. Sup. 1875), separate estate. Exchange Banking 5 Hun, 109; Cousins v. Boyer, 100 & Trust Co. V. Finley, 73 S. C. 423, N. T. S. 290, 114 App. Div. 787. 53 S. E. 649. 94. Dyer v. Helson, 117 Me. 203 89. Wellesley v. Duke of Beaufort, 103 A. 161. a Rnss. 1; Maephers. Inf. 224. 95. McCrady v. Pratt, 138 Mieh. 90. Milford v. Milford, L. B. 1 P. 203, 101 N. W. 227, 11 Det. Leg. N. & D. 715; Schouler, Hus. & Wife, § 529. 555; Wilson v. Wilson, 45 Cal. 399; 96. Kubic v. Zemke, 105 Iowa, 269, Holt V. Holt, 42 Ark. 495. 74 N. W. 748; Cory v. Cook, 24 R. I. 879 DUTY OF SUPPOKT. § 798 statute of a suit by a wife to compel her husband to support their minor children." A judgm.ent for support renders the question of paternity res judicata.'^ § 798. English Statute Enforcing Support. The statute 43 Eliz., c. 2, slightly amended by 5 Geo. I., c. 8, points out the English policy in this respect. It is provided by this statute that the father and mother, grandfather and grand- mother, of poor, old, blind, lame, and impotent persons shall main- tain them at their own charges, if of sufficient ability; and if a parent runs away and leaves his children, the municipal author- ities, by summary judicial process, may seize upon his rents, goods and chattels, and dispose of them toward their relief.'^ No person is bound to provide a maintenance for his issue, except where the children are impotent and unable to act, through infancy, disease, or accident, and then is only obliged to furnish them with neces- saries, the penalty on refusal being no more than twenty shillings a month. " For the policy of our laws, which are ever watchful to promote industry," says Blackstone, " did not mean to compel a father to maintain his idle and lazy children in ease and indolence ; but thought it unjust to oblige the parent against his will to pro- vide them with superfluities, and other indulgences of fortune; imagining they might trust to the impulse of nature, if the children were deserving of such favors." ^ Lord Eldon, viewing the same subject afterwards in the light of equity principles, was difFerently impressed by these penal provisions, and founded the jurisdiction of chancery upon the very meagreness of the common-law remedies against keeping the child from starvation.^ The statute 43 Eliz. may be considered as having been trans- ported to the United States as part of our common law. Its pro- 421, 53 A. 315. (It is a question for 1. 1 Bl. Com. 449; Winston v. New- the jury whether a commercial eduea- comen, 6 Ad. & El. 301. tion in bookkeeping is a necessity.) 2. "Is it," say 3 he, "an eligible 97. Leibold v. Leibold, 158 Ind. 60, thing that children of all ranks should «2 N. E. 627. be placed in this situation, that they 98. Commonwealth v. Bednarek, 62 shall be in the custody of the father; Pa. Super. Ct. 118. although looking at the quantum of 99. 1 Bl. Com. 448 ; Stubb v. Dixon, allowance which the law can compel 6 East, 166; Macpher3. Inf. 210. the father to proTide for them, they These statutes did not extend to ille- may be regarded as in a state little gitimates or stepchildren. Tubb v. better than that of starvation? The Harrison, 4 T. R. 118; Cooper v. Mar- courts of law can enforce the rights tin, 4 East, 76. But this is changed of the father, but they are not equal by statute 4 & 5, Will. IV., ch. 76. to the office of enforcing the duties § Y99 PABENT AND CHILD. 880 visions liave also teen re-enacted in many of our States, as in New Hampsliire, Connecticut, and South Carolina. In New York, Massachusetts, and some other States, the provision as to grand- parents is omitted.® This feehle and scanty provision of statute law was intended, as Kent observes, for the indemnity of the public against the maintenance of paupers.* Some local statutes at this day authorize courts and magistrates to award to the overseers of the poor the custody of children who are found to be neglected by their parents and growing up without education or salutary control.' Under the pauper acts it is held that the father's obligation to support his vagabond son, who cannot support himself, does not accrue until after legal proceedings have been instituted ; and the furnishing of previous supplies constitutes no legal consideration to support a new promise.* Nor is an insane mother, herself a pauper, under obligation to support a minor child, or entitled to his earnings.^ And as the language of statute 43 Eliz. rendered it inapplicable to stepchildren, so does it apply to blood relations only ; and the husband is not liable for the expense of maintaining his wife's mother ; * nor the father for his daughter's husband ; * nor a man who marries for his pauper stepchildren.^" But a quasi parental relation may sometimes be established; and one may stand in loco parentis to another, and thus become responsible for the maintenance and education of the latter, on the principle that the child is held out to the world as part of his family.^^ § 799. American Penal Statutes Enforcing Support. Statutes have been passed in many States making desertion and abandonment of children an indictable offence, and all the elements of such offence as set out in the statutes must be alleged and of the father. ' ' Wellesley v. Duke of 6. Mills v. Wyman, 3 Pick. 207 ; Beaufort, 2 Euss. 23 (1827). Loomis v. Newhall, 15 II. 159. 3. 2 Kent, Com. 191, and note; 7. Jenness v. Emerson, 15 N. H. Dover v. McMurphy, 4 N. H. 162; 486. And see Sanford v. Lebanon, Comm'rs of Poor v. Gansett, 2 Bail. 31 Me. 124; Parmington v. Jones, 36 320. AndseeHayne'a Adm'rv. Wag- N. H. 271. goner, 25 Ind. 174. 8. Eex v. Munden, 1 Stra. 190. 4. 2 Kent, Com. 191. 9. Friend v. Thompson, Wright, 5. Pamham v. Pierce, 141 Mass. 636. 203. For criminal prosecution under 10. Brookfield v. Warren, 128 Mass. a local statute for failure to support, 127. see State v. Sutcliffe (1894), N. J. 11. See as to stepchildren, Ela v. Brand, 63 N. H. 14. 881 DUTY OF SUPPORT. § 799 proved/^ including a lawful marriage between the father and mother.^' Th« crime is made out if the children become destitute after the father leaves them," and although the child is bom after deser- 12. State V. Garrison, 129 Minn. 389, 152 N. W. 762; Floyd v. State, 86 S. E. 460 (demand for support need not be shown); State v. Clark (La.), 80 So. 578 ; State v. Langley, 248 Mo. 545, 154 S. W. 713; Irving v. State (Tex. Cr. App.), 166 S. W. 1166 (name of son must be proved) ; Moore v. State, 1 Ga. App. 502, 37 S. K 1016 (conduct of mother no de- fence) ; Jackson v. State, 1 Ga. App. 723, 58 S. E. 272; Moore v. State, 34 Ohio Cir. Ct. E. 487 (notice of necessity not essential). See State v. Sparegrove, 134 Iowa, 599, 112 N. W. 83 (guilt of person to whom par- ent gave child); State v. Teal, 77 Ohio St. 77, 83 N. E. 304 (demand on father unnecessary) ; Ex parte Mitchell, 19 Cal. App. 567, 126 P. 856; Parrish v. State, 10 Ga. App. 836, 74 S. E. 445; Sanders v. Sanders, 167 N. C. 319, 83 S. E. 490; In re Cordy, 146 P. 534 (af- firming judgment, 169 Cal. 150, Id. 532, intent necessary) ; judgment (1907), 103 N. T. S. 881, 119 App. Div." 143, aff'd.; Goetting v. Nor- moyle, 191 N. T. 368, 84 N. E. 287 (effect of bond required) ; State v. Langford (Ore), 176 P. 197; Daniels V. State, 8 Ga. App. 469, 69 S. E. 588; Adams v. State, 164 "Wis. 223, 159 N. W. 726; State v. Gipson, 92 Wash. 646, 159 P. 792; State v. Beers, 77 Conn. 714, 58 A. 745; Gay V. State, 105 Ga. 599, 31 S. E. 569, 70 Am. St. Eep. 68; Dalton v. State, 118 Ga. 196, 44 S. E. 977; Baldwin v. State, 118 Ga. 328, 45 S. E. 399; Williams v. State, 121 Ga. 195, 48 8. E. 938; Brown v. State, 122 Ga. 568, 50 8. E. 378; Mays v. State, 123 Ga. 507, 51 8. E. 503. Absence is a necessary element in the crime of abandoning destitute 56 children. Brown v. State, 122 Ga. 568, 50 S. E. 378 ; Shannon v. People, 5 Mich. 71. The question hy whose advice the parent left the place where his chil- dren were is irrevelant. State v. Peabody, 25 E. I. 544, 56 A. 1028; State V. Donaghy, 6 Boyce (Del.), 344 99 A. 720; State v. Eckhardt, 232 Mo. 49, 133 S. W. 321 ("expose" defined); People v. Schlott, 162 Cal. Cal. 347, 122 P. 846; Eimes v. State, 7 Ga. App. 556, 67 S. B. 223 "his child" sufficient description); State V. Shouse (Mo.), 186 S. W. 1064 ("necessary food, clothing or lodg- ing" defined). Where the child had the same sort of food and lodging as defendant, who had not deserted her, the evidence of neglect is insufiieient. State v. Shouse (Mo.), 186 S. W. 1064; State V. Vogt, 141 La. 764, 75 So. 674; State V. Clark (La.), 80 So. 578. 13. Cunningham v. State, 13 Ga. App. 80, 78 S. E. 780; Martin v. People, 60 Colo. 575, 155 P. 318 (must show that mother the legal wife of father) ; Wynne v. State, 86 S. E. 823 (common-law marriage). See People v. Connell, 136 N. Y. S. 912, 151 App. Div. 943 (paternity must be proved where defendant marries mother of illegitimate child). See State V. Veres, 75 Ohio St. 138, 78 N. E. 1005 (pendency of bastardy proceeding no defence) ; People v. Fitzgerald, 152 N. T. S. 641, 167 App. Div. 85 (father of illegitimate not guilty under statute as a "parent"); Creisar v. State, 97 Ohio, 16, 119 N. E. 128 ("minor" means legitimate child). 14. Brown v. State, 122 Ga. 568, 50 S. E. 378; People T. Lewis, 116 N. T. S. 893, 132 App. Div. 256. § 800 PAEENT AND CHILD. 882 tioii/° and although there is no notice or demand on the parent." Abandonment has two elements: separation from the child and failure to supply its needs/^ and wilful and voluntary abandon- ment includes actual desertion.^* Where the custody of the child was awarded to the wife in her divorce suit, his failure to support will not make him criminally liable under the statute/" but it is held that the fact that the mother improperly keeps the children does not relieve him of re- sponsibility for their support.^" Temporary absences leaving the child in charge of another will not constitute abandonment,^^ but a father cannot relieve himself by contract of the duty of supporting his children.^^ The father cannot be imprisoned for neglect to provide as ordered by the court unless it is shown that he has the ability to comply with the order. ^^ Support may include proper medical treatment.^* § 800. Support by Others as a Defence. Abandonment under some statutes is not proved where the child is supported by others,^^ while under other statutes punishing de- ls. Moore v. State, 1 Ga. App. 502, 57 S. E. 1016; Jackson v. State, 1 Ga. App. 723, 58 S. E. 272; Spieer v. State (Tex. Cr. App.), 179 S. W. 712; Shelton v. State, 19 Ga. App. 618, 91 S. E. 923 (if father persists in abandonment after birth of child) ; Campbell v. State, 20 Ga. App. 190, 92 S. E. 951. 16. Elem v. State, 5 Ohio App. 12. 17. Phelps V. State, 10 Ga. App. 41, 72 S. E. S24. 18. Gay y. State, 105 Ga. 599, 31 S. E. 569, 70 Am. St. Eep. 68. 19. People V. Hartman, 23 Cal. App. 72, 137 P. 611; People v. Dunston, 173 Mich. 368, 138 N. "W. 1047. See, however, Bx parte McMullin, 19 Cal. App. 481, 126 P. 368; State v. Cool- idge, 72 Wash. 42, 129 P. 1088; Ex parte Perry (Cal. App.), 174 P. 105. See People v. Champion, 30 Cal. App. 463, 158 P. 501. 20. Beilfuss v. State, 142 Wis. 665, 126 N. W. 33; Adams v. State, 164 Wis. 223, 159 N. W. 726. 21. Jn re Snowball's Estate, 156 Cal. 240, 104 P. 444. 22. Laws y. People, 59 Colo. 562, 151 P. 433. 23. Ex parte McCandless, 17 Cal. App. 222, 119 P. 199; Eaborn v. State, 71 Fla. 387, 72 So. 463; Peo- ple T. Forester, 29 Cal. App. 460, 155 P. 1022. 24. Owens v. State, 6 Okla. Cr. 110, 116 P. 345. 25. State v. Anderson, 189 Mo. App. 611, 175 S. W. 259; Eichie v. Com- monwealth, 23 Ky. Law Eep. 1237, 64 S. W. 979. See People v. Eubens,, 92 N. T. S. 121. See State v. Thorn- ton, 232 Mo. 298, 124 S. W. 519 (defendant is not guilty where mother supplies child with "necessary food; ") State v. Neuroth, 181 S. W. 1061; State v. Tietz, 186 Mo. App. 672, 172 S. W. 474; People ex rel. Mueller v. Mueller, 150 N. T. S. 204, 164 App. Div. 386; People v. Smith, 150 N. T. S. 731, 88 Misc. 136; Wheeler v. State, 51 Ind. App. 622, 100 N. E. 25; Williams v. State, 126 Ga. 637, 55 S. E. 480; People v. Meads, 28 Cal. App. 140, 151 P. 552 (where mother left him, taking 883 DUTY OF SUPPORT. § 801 sertion the fact that the child is supported by others is no defence,^' The question whether the father is liable under a penal statute for failing to contribute to the support of his children when they are well taken care of by others may depend on the language of the statute. Where the statute defines the crime as failing to provide, leaving the child destitute, the father is not liable where others provide. for it,^' and the same result is reached where the statute includes a reckless disregard of the life or health of the child.^' But where the statute punishes mere failure to provide necessary food, clothing, etc., the crime may be complete although the child is well taken care of by others.^' It is held no defence to a prose- cution for the crime of non-support of children that their neces- sities had been relieved by others where the children would be in necessitous circumstances if they had not been so provided for,"° as this would introduce a new provision into the statute and make a parent's guilt depend on the concurrent failure and neglect of other persons to provide for his child. Men cannot shift their burdens upon the shoulders of others in this way.^^ § 801. Proceedings to Compel Support. The proceeding for non-support is criminal in nature and may be prosecuted by the public authorities,^" and in the court desig- nated by the statute,^* under an indictment detailing the oifence child); Order (1906), ffS N. T. S. 119, 134 P. 1134; State v. Wellman, 863, 112 App. Div. 717, aff'd.; Peo- 103 Kan. 503, L. E. A. 1918D, 949, pie V. Joyce, 189 N. T. 518, 81 N. E. 170 P. 1052. 1171. 27. Dalton v. State, 118 Ga. 196, 26. Bowea t. State, 56 Ohio St. 44 S. E. 977; Williams v. State, 121 235, 46 N. E. 708; State v. StoufEer, Ga. 195, 48 S. E. 138, 126 Ga. 637,51 65 Ohio St. 47, 60 N. E. 985. S. E. 480. In a place. The fact that the 28. Eichie v. Comm., 23 Ky. L. statute provides for abandonment "in Eep. 1237, 64 8. W. 979'; State v. a place" is important and means Thornton (Mo.), 134 S. W. 519, 32 that the child must be left in some L. E. A. (N. S.) 841. definite place and it is not enough 29. State v. Stouffer, 65 Ohio St. to show that the child was left in the 47, 60 N. E. 985. custody of the mother. People v. 30. State v. Wellman (Kan.), 170 Joyce, 98 N. T. S. 863, 112 App. Div. Pae. 1052, L. E. A. 1918D, 949. 717, 20 N. T. Cr. E. 101, 189 N. T. 31. Hunter v. State (Okla. Grim. 518, 81 N. E. 1171. See Goffe v. Eep.), 134 Pae. 1134, L. E. A. 1915A, State, 14 Ga. App. 275, 80 S. E. 519 564. (child need not be destitute, it is 32. State v. Peabody, 25 E. I. 178, enough that father does not provide 55 A. 323. for it); State v. Boss, 137 P. 829; 33. Steele v. People, 88 HI. App. State V. Waller, 90 Kan. 829, 136 P. 186. See Keller v. Commonwealth, 215- Hunter v. State, 10 Okla. Cr. 71 Pa. 413 (as to proceedings in dif- § 801 PAEENT AND CHILD. 884r particularly/* supported by competent evidence *° as to neglect before and after the time set in the indictment.'" The crime of failing to support children is a crime of omission, and the crime occurs where the omission takes place. Therefore, where a man deserts his family and removes to another State the crime occurs at the place of the residence of the obildren, as he owes the duty of support at that point, and therefore he may be punished if brought there although the non-support charge took place while he was in another State,*^ Whether a father can be prosecuted in Kansas for not taking care of his son there when the father lived in Texas depends on whether he permitted the mother to remove the son to Kansas under such circimistances that he was obligated for his support and with knowledge or reasonable means of knowledge that his child was destitute and likely to become a public burden. The mere fact that without fault of the parents the child was brought to Kansas by his mother and was, at some time after the father had been brought to Kansas in custody of an officer, actually in destitute circumstances, would not of itself constitute a crime.'* The judgment of the court may be conditional,'' and may be modified on proof of change of circumstances,*" and the court may f erent counties) ; Commonwealth v. 1103 ; State v. Donaghy, 6 Boyce Acker, 197 Mass. 91, 83 N. E. 312 (Del.), 344, 99 A. 720; Utsler v. (no defence that child living in for- State (Tex. Cr. App.), 195 S. W. eigu country) ; In re Fowles, 89 Kan. 855. 430, 131 P. 598 (non-resident parent 35. Donaghy v. State, 6 Boyce must be shown to have knowledge); (Del.), 467, 100 A. 696, 99 A. 722 State V. Barilleau, 128 La. 1033, 55 (marital relations between father and So. 664; State v. Sanner, 81 Ohio St. mother immaterial); Campbell v. 393, 90 N. E. 1007 (though parent State, 20 Ga. App. 190, 92 S. E. 951; a resident of another State at the Poindexter v. State, 137 Tenn. 386, time); State v. Tocum, 106 N. E. 193 S. W. 126 (evidence of defend- 705 (in county where children living). ant's father's efforts to induce See People v. Clairmont, 111 N. Y. S. mother to return to him immaterial) ; 613, 58 Misc. 517 (no jurisdiction Joiner v. State (Tex. Cr. App.), 196 where offence committed outside the S. W. 523. State) ; Noodleman v. State (Tex. Cr. 36. Watke v. State (Wis.), 163 App.), 170 S. "W. 710 (although de- N. W. 258. sertion in another State) ; State v. 37. State' v. Wellman (Kan.), 170 Tujague, 134 La. 576, 64 So. 417; Pac. 105g, L. E. A. 1918D, 949. Martin v. People (Colo.), 168 P. 38. Be Fowles, 89 Kan. 430, 131 1171. Pac. 598, 47 L. E. A. (N. S.) 227. 34. Eichie v. Commonwealth, 23 39. Spade v. State, 44 Ind. App. Ky. Law Eep. 1237, 64 8. W. 979; 529, 89 N. E. 604. Shannon v. People, 5 Mich. 71 ; State 40. Hirstius v. Gottsehalt, 31 Ohio v. Block (Mo. App. 1904), 82 S. W. Cir. Ct. E. 406. 886 DUTY OF SUPPOET. § 801 by statute order a guaranty bond to be furnished,*^ with a rigbt of appeal proTided by statute.*^ 41. State V. Clark (La.), 78 So. (DeL), 344, 100 A. 696, 99 A. 720; 742. State V. Clark (La.), 78 So. 742. 42. Donaghy v. State, 6 Boyoe § 803 PABENT AND CHILD. 886 CHAPTEE XI. BIGHTS OF CHILDEEN. Section 802. Bights of Children in General. 803. Claims Against the Parental Estate for Services Bendered. 804. Advancements. 805. Child's Eights of Inheritance. 806. Eights of Full-grown Children. § 802. Rights of Children in General. The rights of children with reference to their parents may be considered more at length. We have already had occasion to observe that the child may to a certain extent bind the parent as agent, not only for necessaries, but in some other transactions, where the child acts within the scope of authority properly con- ferred. But general transactions require proof of actual author- ity ; and a son has ordinarily no more right, as such, to lend his father's goods than a stranger.** And proof that in one instance the use, by a son, of his father's name upon negotiable paper dis- counted at a bank, was known and acquiesced in by the father, is not proof that the son was authorized to sign subsequent notes in the same manner.** The principles of agency are here applied.** A child cannot recover on the ground of relationship upon a prom- ise made for his benefit to his parent, if the consideration came wholly from the parent.*' § 803. Claims Against the Parental Estate for Services Rendered. Claims for services rendered to a parent, or to some one standing in place of a parent, are not unfrequently presented against the parental estate after decease. Thus, where an adult child resides with and performs valuable service for the parent, an understand- ing may be shown between them of recompense either In money or by way of testamentary provision under the parent's will. In meritorious instances, and particularly where the parent was long sick and infirm, and the child, or some particular child, performed indispensable functions, or where by personal labor and skill the 43. Johnson v. Stone, 40 N. H. 45. See also Sequin v. Peterson, 45 197; supra, § 788. But see Bennett Vt. 255; supra, § 68?. v. Gillett, 3 Minn. 423. 46. Marston v. Bigelow, 150 Mass. 44. Greenfield Bank v. Crafts, 2 45. Alen, 269. 887 EIGHTS OF CHILDBElSr. § 804 child enhanced the value of the parental estate, a mutual intention to this effect may be inferred from the circumstances ; and where, from some consistent cause, no such testamentary provision has been made, compensation will be allowed out of the deceased par- ent's estate upon the usual footing of a creditor's claim.*'' Pre- sumptions, however, as we have seen, are unfavorable, and must be overcome ; *' and especially if the child seeks an advantage over other heirs, some express contract or affirmative evidence of inten- tion ought to appear; and so, too, presumptions are against the reimbursement of parental care and trouble bestowed upon one's offspring.** Where the relationship was more distant, or the parties con- cerned were not kindred at all or united by marital ties, the infer- ence of a promise to recompense the service rendered is of course more readily raised, whether the claim be presented against the person served, or against his estate, upon his decease."" § 804. Advancements. If the father, during his lifetime, makes an advancement to any of his children, towards their distributive share in his estate, the rule is to reckon this in making the distribution."^ In England it 47. Freeman v. Freeman, 65 111. 159. See iupra, § 238 ; Eeando v. Mia- 106; Markey v. Brewster, 17 N. T. play, 90 Mo. 251, where necessary Supr. 16. Specific performance has services were rendered to an insane been decreed of a promised conveyance mother. in consideration, even though the will 50. Briggs v. Briggs, 46 Vt. 571; were insufficient. Hiatt v. Williams, Morton v. Eainey, 82 111. 215; Brod- 73 Mo. 214. As to persons in general erick v. Broderick, 28 W. Va. 378. performing service in expectation of 51. Ehea v. Bagley, 63 Ark 374, a legacy, mere expectation cannot ere- 38 S. W. 1033, 36 L. E. A. 86; ate an enforceable contract; but a Hughes v. Nicholson, 105 P. 692, mutual understanding, if shown, may affd. on reh. ; Plowman v: Nicholson, afford the basis of a valid claim 81 Kan. 210, 106 P. 279; Brooks v. against an estate. See Shakespeare Summers, 100 Ky. 620, 38 S. W. 1047, V. Markham, 17 N. Y. Supr. 311, 322, 18 Ky. Law Eep. 1026 ; Ayler v. and cases cited. Hudson v. Hudson, Ayler (Mo.), 186 S. W. 1068; Taylor 87 Ga. 678. V. Draper, 71 N. J. Eq. 309, 63 A. 48. Zimmerman v. Zimmerman, 729 844; Cowden v. Cowden, 28 Ohio Cir. Penn. St. 229; § 269; Erhart v. Diet- Ct. E. 71; Kern v. Howell, 180 Pa. rich, 118 Mo. 418; Hudson v. Hud- St. 315, 36 A. 872, 40 "W. N. C. 93, son, 90 Ga. 581. But an agreement 57 Am. St. Eep. 641; Schouler, Ex- to make a will in the child's favor, ecutors, §§ 499, 500; Edwards v. though invalid in a testamentary Freeman, 2 P. Wms. 435. And so is sense, imports a contract to be sued it with one standing in loco parentis. upon. Ellis V. Gary, 74 Wis. 176. The father must account for the 49. Seitz's Appeal, 87 Penn. St. rents and profits of any property § 804 PAEENT AND CHILD. 888 would appear that acts of the father have often been so construed, under the statute of distributions, with less reference to intention of the parties than the requirements of equal justice. Thus annu- ities are reckoned an advancement; contingent provisions; large premiums for a trade or profession; and loans of considerable importance to a son.°* But small and inconsiderable sums for current expenses, ornaments, and the education of children are not so reckoned." Nor is the payment to the daughter's husband of £1,000, jocularly stated by the father to be in exchange for his snuff-box, to be considered an advancement to the daughter."* The rule in this country does not appear to be very strict; and in some .States the statutes of distributions, unlike those of Eng- land, permit nothing to be reckoned as an advancement to a child by the father, unless proved to have been so intended and charge- able on the child's share by certain evidence prescribed.'" And it is laid down that whether a provision of the deceased in his life- time be a gift or an advancement is a question of intention; but that if it was originally intended by both as a gift, it cannot subse- quently be treated by the father as an advancement, at least with- out the son's knowledge or consent ; °° nor set off as an advance- ■which he has given as an advance- heavy losses. The father on his death- men! ; Guthrie v. Mitchell, 38 Okl. bed caused the promissory note to be 55, 133 P. 138. burned, and died intestate. It was 52. Smith v. Smith, 3 Gif. 263; held that although the circumstances 2 Wms. Ex'rs, 1385; Edward v. Free- under which the note had been de- man, 2 P. Wms. 435; Boyd v. Boyd, stroyed amoimted to an equitable re- L. E. 4 Eq. 305. lease of the debt; yet that the sum 63. 2 Wms, Ex 'rs, 6th Am. ed. 1498- which remained due on it must be 1505. And see Miller's Appeal, 40 considered an advancement to the son. Pa. St. 57. Gilbert v. Wetherell, 2 Sim. & Stu. 84. McClure v. Evans, 29 Beav. 422. 254, per Sir John Leach, M. E. But And see Stock v. McAvoy, L. E. 15 see Auster v. Powell, 31 Beav. 583, Eq. 55. and n. And see Bennett v. Bennett, In a modern English case a father L. E. 10 Ch. D. 474. lent the sum of £10,000 to his son, to 55. Osgood v. Breed's Heirs, 17 assist him in forming a partnership in Mass. 356. Mere declarations of a the business of a sugar-refiner, and father held insufScient to raise a pre- took his promissory note for the re- sumption of his intention to treat payment of that sum on demand. It money paid to his son for which he appeared that the son engaged in had taken the latter 's notes as ad- business at the urgent desire of his vancementa. Harley v. Harley, 57 father; that finding it was a losing Md. 340. concern he became desirous of retir- 66. Lawson's Appeal, 23 Pa. St. ing, but remained at the urgent re- 85; Sherwood v. Smith, 23 Conn. 516. quest of his father and continued the See Black v. Whitall, 1 Stockt. - 572 ; business with reluctance, sustaining Storey's Appeal, 83 Pa. St. 89. 889 BIGHTS OF CHILDEEN. § 804 ment to the son in settling the father's estate."' Yet it is also ruled that if a son during his father's life receipts for and actually receives his " full proportion," he can claim nothing more from the etsate after his father's death/' Advancements do not bear interest, unless, at all events, the intention to that effect be very clear." Where the child of a father dying intestate has received an advancement, in real or personal estate, and wishes to come into the general partition or distribution of the estate, he may bring hia advancement into hotchpot with the whole estate of the intes- tate, real and personal ; and shall thereupon be entitled to his just proportion of the estate. This is the English rule, and it prevails likewise in many of the United States."" In such case the value of the property at the time of advancement governs in the distribu- tion.*^ The principle of this rule is equality of distribution of the ancestor's personal estate among his children and their de- 67. Thurber v. Sprague, 17 E. I. . 904 obligation to support,*^ and severs all filial relations as if tte child were of age.*' Emancipation gives the child all rights he would have if of age to receive his own earnings/' Moreover, the emancipated child's earnings go to his administrator upon his decease, to be distributed according to law; *° and it is the child's legal representative and not the father who should sue for arrears,*' and a father who has emancipated his son is not liable to third persons for his board."" In brief, the minor who is released from his father's service stands, as to his contracts for labor either with strangers or with him, upon the same footing as if he had arrived at full age ; and such being the case, the father may himself contract to employ and pay the child for his services, and be bound in consequence like any stranger to fulfil his agreement."^ If the father receives his son's earnings after giving the son his time, it will be a good consideration for any promise from the father."^ And he cannot sue for the services of such son performed within the period embraced by the agreement, although he has given notice to the party employing the son not to pay his wages to him.°^ Still less can the father's creditors attach such earnings, or property which was purchased therewith for the infant's ben- efit."* But the child sues in such case for his own wages.°° And if he is actually emancipated by his father, and an express promise 45. Nightingale v. Withington, 15 61. Francisco v. Benepe, 6 Mont. Mass. 272; Corey v. Corey, 19 Pick. 243; § 756. 29; Hollingsworth v. Swedenborg, 49 52. Jenney v. Alden, 12 Mass. 375. Ind. 378; Vamey v. Young, 11 Vt. 53. Morse v. Walton, 6 Conn. 547; 258; Johnson v. Gibson, 4 E. D. Wodell v. Coggeshall, 2 Met. 89; Smith, 231. Bray v. Wheeler, 29 Vt. 514. 46. Memphis Steel Const. Co. T. lis- 54. Chase v. Elkins, 3 Vt. 29t); ter, 138 Tenn. 307, 197 S. W. 902. Weeks v. Leighton, 5 N. H. 343 ; Mc- 47. Kenure v. Brarnerd & Arm- Closkey v. Cyphert, 27 Pa. St. 220; strong Co., 88 Conn. 265, 91 A. 185; Bobo v. Bryson, 21 Ark. 387; Lord Wabash E. Co. v. MoDoniels, 107 N. v. Poor, 23 Me. 569; Lyon v. Boiling, E. 291; Haugh, Keteham & Co. Iron 14 Ala. 753; Johnson v. Silsbee, 49 Works V. Duncan, 2 Ind. App. 264, N". H. 543; Dierker v. Hess, 54 Mo. 28 N. E. 334; Woodward v. Donnell, 246; Mott v. Pureell, 98 Mo. 247; 146 Mo. App. 119, 123 S. W. 1004; Lind v. Sullestadt, 21 Hun, 364. As Bevel V. Pruitt, 42 Okla. 696, 142 P. to an infant's suits, see post, Part 1019. v., eh. 6. And see Benziger v. Miller, 48. Smith v. Knowlton, 11 N. H. 50 Ala. 206. Recovery by the son ia 191. a suit -will bar an action by the fa- 49. Bell V. Bumpus, 63 Mich. 375. ther. Scott v. "White, 71 HI. 287. 60. Holland v. Hartley, 171 N. C. 55. Ream v. Watkins, 27 Mo. 516.. 376, 88 8. E. 507. 905 EMANCIPATION. § 809 is made to pay him for his labor, with the consent of his father, no other notice of his emancipation is necessary to charge the defend- ant and enable the minor to sue."' All this presupposes that the father has bona fide emancipated the child, and does not support and claim earnings and services for himself in fraud of his own creditors."' Property purchased by the emancipated minor with his own means, too, is undoubtedly his own, and not subject to the parent's control or disposal/' When emancipation of the minor child is complete the father's Tight to recover for loss of services due to injury to the child is cut off, as the emancipation is not revocable, but when the emanci- pation is partial it is revocable, and the parent's right to recover for loss of services is not affected. Emancipation is partial only where the father has never formally set the child free and permits him to work and keep his own wages where the child lives at home and contributes to the family support."' So a father may give to his son a part instead of the whole period of his minority, in which case the rights of the latter are limited accordingly, and the parental control and duties are still upheld.'" The father cannot maintaia action after emancipation for injury to the child involving loss of services, as the father has no longer any right to such services,"^ and emancipation is a defence which 56. Wood V. Corcoran, 1 Allen, 405. to sue strangers for his services in The earnings of an emancipated child doing so. Grimm v. Taylor, 96 Mich, cannot be attached by trustee process 5. for the father's debts. Manchester 58. Steel v. Steel, 12 Pa. St. 64; V. Smith, 12 Pick. 113. And see Bray Hall v. Hall, 44 N. H. 293 ; Wright v. V. Wheeler, 2ff Vt. 514. Dean, 79 Ind. 407; Kain v. Larkin, The father cannot retract his con- 131 N. T. 300. An emancipated child sent that the child shall have his own ceases to follow the settlement of his -wages, after the wages are earned. father. Orneville v. Glenburn, 70 Torrens v. Campbell, 74 Pa. St. 470. Me. 353. Cf. North Yarmouth v. 57. Moody v. Walker, 89 Ala. 619. Portland, 73 Me. 108. Cf. McCarthy v. Boston & Lowell 59. Memphis Steel Construction Co. Eailrcads, 148 Mass. 550. But an v. Lister (Tenn.), 197 S. W. 902, L. insolvent father's emancipation of E. A. 1918B, 406. his child is not unfavorably regarded. 60. Tillotson v. McCrillis, 11 Vt. Trapnell v. Conklyn, 37 W. Va. 242. 477. And see Porter v. Powell, 79 la. Even though the child should then 151; Winn v. Sprague, 35 Vt. 243; work for his mother. lb. Emaneipa- supra, § 756 ; Tennessee Mfg. Co. v. tion may occur, upon the divorce of James, 91 Tenn. 154. parents, so far as the father is con- 61. Memphis Steel Const. Co. v. cemed, so as to give the child the Lister, 138 Tenn. 307, 197 S. W. 903 right to help support the mother and (father can recover after partial § 809 PAKENT AND CHILD. 906 may be set up by one sued by a father for injury to the minor child,^^ but must be pleaded and proved/* and a defendant father claiming emancipation has the burden of proving it.'* emancipation) ; Arnold v. Norton, 35 Conn. 92; Texas B. v. Crowder, 61 Tex. 262. 62. Scott v. O'Leary, 157 la. 222, 138 N. W. 513; Daly v. Everett Pulp & Paper Co., 31 Wash. 252, 71 P. 1014. But see Sawyer v. Sauer, 10 Kan. 519 ; Texas & P. Ey. Co. v. Ad- kins (Tex. Civ. App, 1910), 126 S. W. 954. 63. MeClellan v. Louis F. Dow Co.,. 114 Minn. 418, 131 N. "W. 485; Singer V. St. Louis, K. C. & C. Ry. Co., 119 Mo. App. 112, 95 S. W. 944 ; Pecos & N. T. Ey. Co. V. Blasengame, 42 Tex. Civ. App. 66, 93 S. W. 187. 64. Holland v. Hartley, 171 N. C. 376, 88 S. E. 507. PART TV. atTABDIAN AND WARD. CHAPTEK I. OF GUARDIANS IN GENERAL : THE SEVERAL KINDS. Section 810. Guardianship Defined; Applied to Person and Estate. 811. English Doctrine; Guardianship by Nature and Nurture. 812. Classification of Guardians in England; Obsolete Species. 813. English Doctrine; Guardianship in Socage. 814. English Doctrine; Testamentary Guardianship. 815. English Doctrine; Chancery Guardianship. 816. English Doctrine; Guardianship by Election of Infant. 817. Guardians by Nature and Nurture. In this Country. 818. Chancery and Probate Guardianship in this Country. 819. Guardians in Socage in this Country. 820. Testamentary Guardians in this Country. 821. Guardians of Idiots, Lunatics, Spendthrifts, &c. 822. Guardians of Married Women. 823. Special Guardians; Miscellaneous Trusts. 824. Guardian ai Litem and Next Friend. 825. Guardians de Facto. 826. Guardianship by the Civil Law. § 810. Guardianship Defined; Applied to Person and Estate. The guardian is a person intrusted by law with the interests of another, whose youth, inexperience, mental weakness, and feeble- ness of will disqualify him from acting for himself in the ordinary affairs of life, and who is hence known as the ward. Guardianship usually applies to minor children; and in this sense the guardian may be either their natural protector, whos€ authority is founded upon universal law, or some person duly chosen to act on their behalf. Thus, the father (and sometimes the mother) exercises the right of custody and nurture as the child's natural guardian ; while, if the parents are dead, someone must be selected to supply their place. And since the parental control does not extend to the estate of a minor, the appointment of a guardian may be both necessary and proper, when property becomes vested in a child under age. Guardianship applies also at the present day to idiots, lunatics, spendthrifts, and the like; 907 § 811 GUARDIAlSr AND WAED. 908 and the guardian of sucli person derives his authority from statute law and a special appointment. This guardian is sometimes designated as the committee. The law of guardianship is most naturally divided into guardian- ship of the person and guardianship of the estate. Guardianship of the person is a relation essentially the same as that of parent and child, though not without some important differences, as we shall see hereafter. Hence the guardian has been called " a tem- porary parent." *^ Guardianship of the estate bears a closer resemblance to trusteeship; guardians and trustees being alike bound to manage estates with fidelity and care, under the super- vision and direction of the chancery courts. The same person is often guardian of both the person and estate of the ward ; but not necessarily, for these may be kept distinct. So, too, there may be joint guardians, as in other trusts. § 811. English Doctrine; Guardianship by Nature and Nurture. Gnardianship by nature and nurture denotes hardly more or less than the natural right of parents to the care and custody of their children. It has been usual to treat of guardians by nature as distinct from guardians by nurture; but in reality the latter constitute, for practical purposes, only a species of the former. Mr. Macpherson considers them together, and doubts whether guardianship by nature, as known in the old law, has existed since the time of Charles II., when feudal tenures were abolished; for it appears to have originated in the practice of selling the marriage of the heir.''^ Guardianship by nature and nurture belongs exclusively to the parents: first, to the father, and, on his death, to the mother. The father's right was formerly preferred to the mother's in all cases; while the modem tendency is otherwise. The office of natural guardian lasted during the minority of the child; but guardianship by nurture ceased when he attained the age of four- teen. So guardianship by nature applied to the heir apparent or presumptive, and guardianship by nurture to the other children. Guardianship by nature was something higher than guardianship 65. 1 Bl. Com. 460; 2 Kent, Com. v. , 40 Mina. 7; In re Rise, 220. A money corporation may be 42 Mich. 528, 4 N. W. 284. guardian in modem times, under ap- 66. Macpherg. Inf. 52, 58. See alao propriate statutes, notwithstanding 1 Bl. Com. 461, and Harg. notes 1 the ancient objections of a want of & 3 ; 2 Kent, Com. 21, 220. conscience or of parental feelings, 909 IN GENEEAL. § 812 ty nurture.*' But it is, neverthelfiss, clear that the father has a right, recognized by general law, to th« custody of all his children, not only during the period of nurture, but until the age of majority. So, too, the mother, if not superseded by the infant's election at fourteen, or by the appointment of a new guardian, has, in the absence of a father, the legitimate care of the child for the same period.*' The authority of such guardians extends only to the ward's person. They have no right to intermeddle with his property.*' Blackstone says that, if an estate be left to an infant, the father is, by common law, the guardian, and must account to his child for the profits. But this is only because the law holds him and all others responsible as a qiuisi guardian; and it is well settled at the present day, that if a child becomes vested with property during his father's lifetime, there is no one strictly authorized to take it until a guardian has been duly appointed. Guardianship by nature and nurture is inferior to guardianship in socage; and it yields to every kind of guardianship which exists by strict appointment, so far as the ward's property is con- cerned, though not necessarily as to his person. § 812. Classification of Guardians in England ; Obsolete Species. The law of guardianship, in England, is one of irregular growth. Ghiardians, until chancery jurisprudence became fully developed, were recognized only for certain limited purposes. Their powers were restricted, and new classes were created from time to time, as the exigency arose. One species of guardianship would fall into disuse and another spring up in its place. Hence it is found difficult to attempt a classification, or reduce the general authority of guardians to a definite system. An English text-writer enume- rates no less than eleven different kinds of guardians, many of which are obsolete, and others of merely local application. '° Among them may be mentioned guardianship in chivalry, an inci- dent of the feudal tenure, more in the nature of a hardship than a 67. 1 Bl. Com. 461, and Harg. 631. And see Wall v. Stanwick, 34 notes; 2 Kent, Com. 220, 221. Ch. D. 763, as to liability for rents 68. Macphers. Inf. 61, 65 ; supra, and profits of land. §§ 740, 756. 70. Macphers. Inf. 2 et seq., to 69. 1 Bl. Com. 461, and Harg. notes; which the reader is referred for a 2 Kent Com. 320, 221 ; Hyde v. Stone, full account of these kindsi of guard- 7 Wend. 354; Kline v. Beebe, 6 Conn. ianship, including guardianship under 494; Fonda v. Van Home, 15 Wend. Stat. 4 & 5 P. & M., ch. 8, alluded to § 813 GUARDIAN AI^D WAED. 910 privilege, so far as the ward was concerned, which was finally abolished in the time of Charles II.; guardianship by special custom^ which was confined to London and certain other localities, and appears to exist no longer; guardianship by appointment of the spiritual courts, traces of which still exist in the appointment of administrators durante minore wtatej guardianship by preroga- tive, applicahle only to the royal family; and guardianship by election of the infant, which appears to us more properly consid- ered at this day in connection with the appointment of chancery guardians. But guardianship by nature and nurture, guardian- ship in socage, testamentary guardianship, and chancery guardian- ship require special consideration, and these will be taken up in order. § 813. English Doctrine; Guardianship in Socage. Guardianship in socage arises, at common law, whenever an infant under fourteen acquires title to real estate ; the chief object of the trust being the protection of such property and the instruc- tion of the young heir in the pursuit of agriculture.'^ It applies only when the infant inherits land, and cannot exist if his estate be merely personal. His title, too, must be legal and not merely equitable; hence it would seem that there cannot be a guardian in socage where the interest of the ward is only reversionary.''' This species of guardianship was anciently assignable, so far at least as the custody of the infant was concerned ; but by the doctrine and practice of later times it became regarded as a strictly personal trust, neither transmissible by succession, nor devisable, nor assignable." The duty of the guardian in socage is to take possession of the heir's person and real estate, to receive the rents and profits until the heir reaches the age of fourteen, to keep his evidences of title safely, and to bring him up well.'* His powers are commensurate with his duties. He acquires by virtue of his ofiice an actual estate in the ward's land, though not to his own use; '° he may in 1 Bl. Com. 461, and repealed by 73. Macphers. Inf. 20 et seq.; 9 Geo. IV., ch. 31. See also 1 Bl. 2 Bl. Com. 561, and Harg. n.; 2 Com. 461, and Harg, notes. Kent, Com. 223. 71. 1 Bl. Com. 461, and Harg. n.; 74. Co. Litt. 89; Macphers. Inf. 2 Kent, Com. 220 ; Dagley v. Tolf erry, 28. 1 P. Wms. 285. 75. Plowd., ch. 293; Macphers. Inf. 72. Macphers. Inf. 19; 8 Bl. Com. 28; Rei v. Sutton, 3 Ad. & El. 597. 88. ^11 IN QEKEKAL. § 814 gain a settlement by actual residence upon it; ^* and he can grant leases terminable, and perhaps even void, when the ward reaches the age of fourteen.'' A guardian in socage cannot be removed from office, but the ward may supersede him, at this age, by a guardian of his own choice.'* Guardianship in socage has been said to extend to the heir's personal property ; but there is insufficient legal authority for such a supposition, though it is likely that the farm-stock and house- hold chattels of the ward were included ; and when this guardian- ship was common, personal property consisted of little else." One peculiarity of this guardianship was that the trust belonged only to such next of blood to the child as could not possibly inherit, and it devolved upon him without appointment ; the common law, with a characteristic distrust of human nature, deeming it impru- dent to confide the child's interests to one who expected the succes- sion. For, as Fortescue and Sir Edward Coke affirmed, to commit the custody of the infant to such a person was like giving up a lamb to a wolf to be devoured.'" Guardianship in socage has passed into disuse, though it cannot be said to have been actually abolished. § 814. English Doctrine; Testamentary Guardianship. Testamentary guardianship was instituted by the statute of 12 Car. II., c. 24, and for this reason testamentary guardians are sometimes called statute guardians.*^ This statute provided that any father, whether an infant or of full age, might, by deed executed in his lifetime, or by his last will and testament, dispose of the custody and tuition of his child, either bom or unborn, to any person or persons in possession or remainder, other than popish recusants; such custody to last till the child attained the age of twenty-one, or for any less period, and to comprehend, meantime, the entire management of his estate, both real and per- sonal. So far as popish recusants are concerned, this statute has since been modified; and all religious disabilities as to the office are uow removed ; '^ and since the statute of 1 "Vict., e. 26, an 76. Bex V. Oakley, 10 East, 491; Constable, Vaugh. 185. ButseeHarg. Macphers. Inf. 28. n., 67 to Co. Litt. 89. 77. Bac. Abr. Leases, i. 9; 1 Ld. 80. Co. Litt. 88b; 1 Bl. Com. 462. Eaym. 131; Eex v. Sutton, 5 Nev. & 81. 1 Bl. Com. 462. M. 353; Macphers. Inf. 35, 36. 82. 31 Geo. III., ch. 32; 4 Mont. & 78. Co. Litt. 89a; Macphers. Inf. 41. C. 687; Corbet v. Tottenham, 1 Ball 79. Macphers. Inf. 31 ; Bedell t. v. B. 59. § 814: GUAKDIAN AND WABD. 912 infant, though the father, cannot exercise the right of testamentary appointment ; otherwise, the statute remains in force. Under this English law it matters not what are the father's religious opinions.** But a mother cannot appoint, nor a putative father, nor a person in loco parentis.^* The important question arises, imder this statute, whether the words " by deed executed in his lifetime " permits the father to dispose of his children by any instrument not testamentary he may see fit to make. Lord Eldon was of the opinion that he could not, but was confined to a t-estamentary instrument in the form of a deed, which cannot operate during life and may be revoked at pleasure ; or to a will.*^ Such is doubtless the English law at the present day/' Testamentary guardianship gives the custody of the ward's person, and of all his real and personal estate; and it embraces not only such property as comes to the ward through descent, devise, bequest, or inheritance from the father, but all that he may acquire from any person whomsoever, and whether real or personal. This shows that the guardian's interest is derived not from the father, but from the law itself, for tbe father could give him no interest over that which was never his own.*'' Besides having the advantage of full control over the ward's entire estate, the testamentary guardian stands better than the guardian in socage, inasmuch as his power lasts until the ward reaches his majority, unless the father has seen fit to limit his trust to a less period. Testamentary guardianship, as now understood, was unknovra to the common law. Lord Alvanley said, in Ex parte Ilchester: " It is clear, by the common law, a man could not, by any testa- mentary disposition, affect either his land or the guardianship of his children. The latter appears never to have been made the subject of testamentary disposition till the statute 12 Charles II." ^^ But it seems probable, from some expressions of Lord Coke, that, so far as the custody of the ward's person was con- 83. Villareal v. Mellish, 2 Swaust, 86. Maepherson intimates a differ- 538. ent opinion. See Maephers. Inf. 84; 84. Maephers. Inf. 83; 1 Bl. Com. Leeome y. Sheires, 1 Vern. 442. And 462, Harg. n.; Vaugh. 180; 3 Atk. see Desrites v. Wilmer, 69 Ala. 25. 519. 87. Maephers. Inf. 91. See also 85. Ex parte Earl of Ilchester, 7 GiUiat v. Gilliat, 3 PMllim. 222. Ve3. 367; Earl of Shaftesbury v. Lady 88. 7 Ves. 370. Hannam, Finch. Eep. 323. 913 IN GENERAL. § 816 cemed, though not as to his lands, testamentary dispositions were not unknown to the old common law, and that this testamentary guardian, sometimes confounded with the guardian for nurture, had the care of the child until he reached the age of fourteen, Avith power to dispose of his chattels.*' § 815. English Doctrine; Chancery Guardianship. Guardians by appointment of a court of equity, or chancery guardians, as they are termed, have, within the last century, assumed such importance as almost to supersede, in the English practice, the other kinds, except perhaps the testamentary guardian. The earliest known instance of such an appointment occurred in 1696.'° Blackstone speaks of the practice in his day as applicable chiefly to guardians with large estates, who sought to indemnify themselvea and to avoid disagreeable contests with their wards, by placing themselves under the direction of the court of chancery.'^ The origin of this guardianship is obscure. Mr. Hargrave con- sidered it an act of usurpation by the Lord Chancellor, but admitted the jurisdiction to have been fully established in his time.®* Fonblanque warmly controverts the charge of usurpation, claiming that the jurisdiction exercised by the court of chancery over infants flows from its general authority, as delegated by the erown.'^ This latter view has met with the best judicial approval ; for, as Lord Hardwicke and others have expressed it, the State must place somewhere a superintending power over those who cannot take care of themselves ; and hence chancery necessarily acts, represent- ing the sovereign as parens patriw.^* From the peculiar nature and restrictions of the other kinds of guardianship, many orphans, whose fathers had failed to appoint a testamentary guardian for them, would be otherwise without protection either of person or property. Whatever may be the origin of the jurisdiction by virtue of which courts of chancery appoint guardians in such cases, the right of making such appointments, and in general of controlling the persons and estates of minors, has long been firmly established, and cannot at this day be shaken. 89. Co. Litt. 87b; Co. Cop., § 23; 93. 2 Fonb. Eq. 228, n., 5th ed.; Maephers. Inf. 68. 2 Story, Eq. Jut., § 1333. 90. Case of Hampden. See Co. Litt. 94. Butler v. Freeman, Ambl. 301. 88b, Harg. n. See Lord Thurlow, in Powell v. 91. 1 Bl. Com. 463. Cleaver, 2 Bro. 0. C. 499; Lord El- 92. Co. Litt. 89a, Harg. n. 70. don, in De Manneville v. De \ianne- ville, 10 Ves. 52. 58 § 815 GUAEDIABT AND WAED. 914 An infant is constituted a ward in chancery whenever anyone brings him in as party plaintifE or defendant, by a bill asking the directions of the court concerning his person or estate, or the administration of property in which he is interested.^^ In this character he is treated as under its special protection. Again, a petition may be presented for the appointment of a chancery guardian, alleging that the infant has estate, real or personal. But the mere appointment of a guardian, in this instance, will not make him a ward in chancery.®* Where a suit is pending, the court appoints a guardian of the person only; in other cases a guardian of the person and estate.^'' So chancery will appoint a guardian on petition, where testamentary guardians decline to act ; and, if necessary, determine on petition the right of a guardian already appointed.®' As to the general jurisdiction of chancery over infants, it may be observed that in the appointment and removal of guardians, in providing suitable maintenance, in awarding custody of the person, and in superintending the management and disposition of estates, the chancery court wields large powers for the benefit of the young and helpless. This jurisdiction, being clear of tech- nical rules and dependent upon the discretion of the Chancellor, adapts itself far more readily to the various grades of society, the intention of testators, the wants and wishes of the infants them- selves, and the different varieties of property, than all the other guardianships combined.^ By compelling trust officers to give security, to invest under its direction, and to keep regular accounts, the court exerts a wholesome restraint on the ward's behalf, while at the same time it arms the guardian against all attacks of a capricious heir, by affording its sanction to his official acts. Chancery guardians are, in general, only appointed where there is property; but this is because guardianship can scarcely be necessary otherwise. Chancery, as Lord Eldon observed, cannot take on itself the maintenance of all the children in the kingdom." Hence persons desiring to call in the authority of the court for the protection of an infant sometimes resort to the expedient of settling a sum of money upon him.' The great objection to chancery 95. Macphers. Inf. 103 ; Ambl. 1. 1 Bl. Com. 463, Harg. n. 302, ji. 2. Wellesley v. Duke of Beaufort, 96. Macphers. Inf. 104. 2 Euss. 21. 97. lb. 105. 3. Macphers. Inf. 103. 98. lb. 104. Though doubts were formerly en- 915 Ilf GENERAL. § 816 guardianship is its expense ; and the lavish outlay of money -which hecomes requisite at every step renders the practical benefit to the minor often questionable. Less cumbrous machinery would rem- edy this evil. There are some English statutes relating to the poor, the employment of apprentices, and the like, which, in con- nection with the writ of habeas corpus, are designed to supersede, in a measure, the necessity of personal guardianship, for those who are without property and yet need protection.* § 816. English Doctrine; Guardianship by Election of Infant. Guardianship by election of the infant deserves a passing notice. We have seen that the infant in socage had the right of choosing a guardian at the age of fourteen. This age was recognized also as the limit to guardianship by nurture; the law choosing to yield somewhat to the ward's discretion thenceforth. The socage ward might therefore, if he had no testamentary guardian, choose one to act on his behalf until majority, by executing a deed for that purpose. But little is really known on this subject, and the in- stances mentioned in the books are exceedingly rare." Blackstone again, speaking of guardians for nurture, adds that, in default of father or mother, the ordinary usually asigns some discreet person to take care of the infant's personal estate, and to provide for his maintenance and education.® The practice in the spiritual court was. to permit the minor, when of suitable age, to nominate his guardian, subject to its approval. This was but a limited priv- ilege, after all, though it seems to have been granted to all children l»etween seven and twenty-one.^ It is manifestly different from the right of election allowed the socage ward. The authority of spiritual courts to appoint a guardian of the person and estate was emphatically denied by Lord Hardwicke, and chancery afterwards took this guardianship completely into his own keeping. The infant, above the age of fourteen, is still permitted to nominate tertained, it appears clear that Eng- appointment and removal of guar- Ksh chancery could exercise some very dians, and does not extend to schemes limited interference over the guar- for their maintenance or education. dians of children who had no prop- McGrath Se (1893), 1 Ch. 143. *rty. Spence Be, 2 Ph. 247; Scanlan 4. 1 Bl. Com. 463, Harg. n., and lie, 40 Ch. D. 200. By virtue of this acts there tnumerated. power, aided by the Act of 1886 (49 5. Co. Litt. 88b, Harg n. 16; Mac- & 50 Vict., ch. 27), chancery has now phers. Inf. 77. a jurisdiction over infants who are 9. 1 Bl. Com. 461. not wards of the court and have no 7. Fitzgib. 164 ; Co. Litt. 88b, Harg. property; but it is limited to the n. 16. § 817 GUABDIAN AND WAED. 916 iis guardian before the court of chancery; but his nomination does not supersede the authority of the court, whether he be a socage ward or not.* Guardianship by election of the infant has thus become a misnomer, for he does not absolutely elect. § 817. Guardians by Nature and Nurture in This Country. Guardianship in the United States differs considerably from guardianship in England. Here the whole subject is controlled in a great measure by local statutes. There are fewer kinds of guardians found in American practice, though some of the more important classes are recognized to a limited extent. Thus guar- dianship by nature and nurture, or the parental right of custody, prevails in most of the States with the restraints upon meddling with a child's property already noticed." But as all children, male and female, inherit alike with us, guardianship by nurture is not here so clearly distinguished from guardianship by nature, as in the English practice.^" The father is the natural guardian of his minor child,^^ and on his death the mother,^" and on death of both parents the grand- father or grandmother when next of kin,^* but other relatives of the child have no natural right to its custody,^* The natural guardian has the control of the ward's person only and not of his property. ^° 8. Co. Litt. 88b, Harg. n. 16; App. 240, 133 S. W. 104 ; /n re Knott, Hughes V. Science, 3 Atk. 631, Mac- 17 Det. Leg. N. 471, 126 N. W. 1040; pliers. Inf. 74, 78. Jain v. Priest (Idaho), 164 P. 364. 9. But here as in England, inter- 12. Smith v. Young, 136 Mo. App. meddling -with the ward's property 65, 117 S. W. 628. subjects the parent to the qiuisi guar- 13. Homes v. Derrig, 127 la. 625, dian's liability. Bedford v. Bedford, 103 N. W. 973. 136 111. 354. 14. Wiliet v. Warren, 34 Wash. 647, 10. 2 Kent, Com. 221; Eeeve, Dom. 75 P. 273. Eel. 315; Macready v. Wilcox, 33 15. McKinnon v. First Nat. Bank Conn. 321. That the grandfather or (Fla.), 82 So. 748; Eingstad v. Han- grandmother, when the next of kin, son, 150 la. 324, 130 N. W. 145; may, on the death of father or mother, Miles v. Boyden, 20 Mass. (3 Pick.) be guardian by nature, see Darden v. 213 (cannot recover legacy) ; Power Wyatt, 15 Ga. 414; Lamar v. Mieou, v. Harlow, 57 Mich. 107, 23 N. W. 114 TJ. S. 218, 222. 606; In re Schuler's Estate, 94 N. T. 11. In re Galleher, 8 Cal. App. 364, S. 1063, 46 Misc. 373; Vinyard T. 84 P. 352; Succession of Watt, 111 Heard (Tex. Civ. App.), 167 S. W. La. 937, 36 So. 31 (father cannot 22; Ferguson v. Phcenix Mnt. Life abdicate his guardianship); Smith v. Ins. Co., 84 Vt. 350, 79 A. 997; Mc- Tounjr, 136 Mo. App. 65, 117 S. W. Dodrill v. Pardee & Cnrtin Lnmbcr 628 ; Oehmen v. Portmann, 153 Mo. Co., 40 W. Va. 564, 21 8. E. 878. ^ *■ ■ T-M /^njl-WDi-O AT Q 818 IN OENEBAL. § 818. Chancery and Probate Guardianship in This Country. Chancery guardianship may be considered as adopted to some extent in this country. The supreme courts in many States have now full chancery powers, as in England, over the persons and estates of infants; they may order investments, decree care and custody of the person, tate children under their protection as wards of the court in certain cases, regulate the conduct of guar- dians, and otherwise exercise the important functions which vest in the English equity courts. But English chancery jurisprudence is one thing, and that of the United States another. While in one country th© appointment, removal, and general supervision of guardians belong immediately to the equity courts, in the other a special tribunal is usually created by local statute for such matters. It is this special tribunal — somewhat resembling the English ecclesiastical court — which alone issues letters of guar- dianship, revokes them, and superintends trust accounts in the first instance. The guardians thus chosen have, in general, the rights and duties of chancery guardians of the person and estate. The propriety of distinguishing between chancery guardians and "those appointed by the special courts of this country — whether known as the probate, orphans', ordinary's or surrogate's court — is obvious when the origin of our probate jurisdiction is considered. At the time America was colonized, chancery guardianship was unknown in England. The ecclesiastical or spiritual courts, inde- pendent of all temporal authority, controlled the estates of orphans and their deceased parents. The necessity of some tribunal with probate jurisdiction was soon apparent to our ancestors ; but, re- jecting the idea of a church establishment, they distributed probate and equity powers among the common-law courts. Their judicial system was at first simple: that of local county courts with a supreme tribunal of appeal. With the growth of population came a division of these powers in the inferior courts. New county tribunals were erected for business appertaining to estates of the dead, testamentary trusts, and the care of orphans ; a blending, as it were, of ecclesiastical and equity functions. The old county courts were left to their common-law jurisdiction, while the supreme tribunal retained control over them all, exercising appel- late powers in common law, equity, and ecclesiastical suits. Such, in a word, is the general origin of guardianship by judicial ap- § 818 GUARDIAH^ AND WAED. 918 pointment in this country.^" While the English chancery court was slowly extending its rights over the persons and estates of infants, another system was in process of growth on this side of the water, borrowing from English law as occasion offered, and adapt- ing itself to the increasing wants of our own community. This system, fostered doubtless by a strong prejudice against chancery practice, with its expensiveness and prolixity of pleadings, a preju- dice widely prevalent during the last century, especially in New England, spread gradually into the new States and Territories, the creature of statute law wherever it went. Much confusion has arisen in our courts wherever this distinc- tion has not been kept in view. The law of guardianship is often discussed as though we inherited the English chancery system, when in truth our usual practice is without its counterpart abroad. The only American text-writers of authority on this subject, Eeeve and Kent, have contributed to this perplexity. The former was not precise in his classification.^' The latter unwisely confused American and English appointments, applying the term chancery guardmns to both.^* But the courts have sometimes perceived the necessity of a separate name for guardians appointed by courts of probate jurisdiction. Accordingly, they have been called guar- dians of the person and estate; ^° but this name is quite as appro- priate to others. So, too, they are designated as statute guardians; but there are statute modifications applied to all kinds of guardians, and besides, this name was long ago bestowed by English writers upon testamentary guardians. We shall apply, then, in these pages, for want of something better, the distinguishing term pro- hate gvardians, this being sufficiently precise and suggestive j though it is admitted that the appointing power is not lodged in tribunals styled probate courts in every State, nor necessarily separated from courts exercising common-law functions. Guardians are in this country statutory officers having no inher- ent powers, but only such as are prescribed by statute,^* and are not public officers.'^ 16. See Smith (Mass.),Prob. Pract. 20. Scott v. Eoyston, 223 Mo. 568, 1-5; 9 Maekey (Dist. Col.), 134. 123 S. W. 454. See CoWeigh v. 17. Eeeve, Dom. Eel. 311. Matheny, 181 111. App. 170 (guardian 18. 2 Kent, Com. 226. is an officer of the court). 19. See Arthur's Appeal, 1 Grant 21. Linderholm v. Ekblad, 92 Kan. (Pa.), 55. See Jordan v. Smith, 5 9, 139 P. 1015. Ga. App. 559, 63 S. E. 595 ("guar- dian of the person" defined). 919 IN GENERAL. § 820 Guardianship is a trust dual in nature involving two separata functions, the control of the person and of the estate.''* § 819. Guardians in Socage in This Country. Guardianship in socage was never common in the United States. But traces of its existence are to be found in New York and New Jersey. Thus, in 1809, a guardian in socage, in New York, was permitted to bring trespass and ejectment.''* This species of guardianship is now almost wholly superseded. In fact, it could seldom have arisen, since half-blood and whole-blood relatives in this country inherit alike; so that a blood relation who cannot possibly inherit could rarely be found, to assume the duties of the office.''* A father who holds lands for life, with the remainder vested in his children, cannot be their guardian in socage."' And the lease of his ward's lands by any such guardian may be defeated by the appointment of another guardian, pursuant to the statute, who elects to avoid it."" The powers and duties of the guardian in socage, where recognized in this country, have been limited to the ward's real estate and the personalty connected therewith, such as animals and farm implements, and do not extend to the ward's general personal property; "^ and all such rights are superseded by those of an ordinary legal guardian."* § 820. Testamentary Guardians in This Country. We have testamentary guardians, with essentially the same powers and duties as in England. The statute of 12 Charles 11. has been enacted in most of the United States, with the language somewhat changed. No religious disabilities are imposed in our law. But while some States follow the words of the ancient statute ae to minor fathers, the right is elsewhere restricted to such as are competent to make a will ; and this is a preferable expres- sion. For precise modifications the student should consult the 22. United States ▼. Hall, 171 P. 84 Vt. 350, 79 A. 9^7 (guardianship 214. in socage defined). 23. Byrne v. Van Hoesen, 5 Johns. 24. 2 Kent, Com. 222, 223; Reeve, 66. See also Jackson t. De Walts, 7 Dom. Eel. 315, 316. Johns. 157. The widowed mother of 25. Graham v. Houghtalin, 1 Vroom, an infant who owns real estate is in 552. this State a general guardian with 28. Emerson t. Spicer, 46 N. T. the rights, powers, and duties of a 594. guardian in socage. Hynes He, 105 27. Foley v. Mutual Life Co., 138 N. T. 560. See In re Wagner, 135 N. T. 333. N. T. S. 678, 75 Misc. 419. See Fer- 28. Stimson, § 1103. guson v. Phoenix Mut. Life Ins. Co., § 819 GUAEDIAJtherwise, and that the court cannot commit guardianship of the person to one and guardianship of the property to another.^" 15. See infra, § 1055. 20. See Tenbrook v. McColm, 7 IG. But see Bedell v. Constable, Halst. 97. But some State codes per- Taugh. 185. mit a separation of the functions with 17. Stat. 12, Car. II, ch. 24, §§ 8, separate guardians accordingly. 84 9, Vaugh. 178. Iowa, 362. And see 17 E. I. 760; 18. Macphers. Inf. 114; Mx parte Order, 110 N. T. S. 622, 126 App. Becher, 1 Bro. C. C. 556; Ex parte Div. 155, affd.; In re McMillan, 1?3 •Woolscombe, 1 Madd. 213. N. T. 651, 86 N. E. 1127 (committee 19. Macphers. Inf. 105; 2 Kent, of person and estate of infant not Com. 229. needed). 971 NATURE OF OFFICE. § 862 The guardian is not always entitled to the custody of the infant's person ; but chancery will exercise its discretion for the benefit of the latter, as to delivering him up to the guardian or permitting him to remain elsewhere, and as to the persons who are to have access to him, and the circumstances attending such access, and generally as to his education/^ And it is the policy of our legis- lation to leave the child's person in his parents' keeping so far as possible. But the guardian may be a " guardian of the person and estate " notwithstanding. The guardian may act through an agent where necessary." § 862. Whether a Guardian is a Trustee. In discussing the rights and duties of a guardian, this question next meets us at the outset : Is or is not the guardian's office sub- stantially that of a trustee in interest ? This will be best seen by examining the different kinds of guardians, as they respectively arose. Guardianship in socage arose very early at common law, and is the first in order. These guardians were considered as trustees. According to the old authorities, the guardian in socage had not a bare authority, but an actual estate and interest in the land, though not to his ovm use." Hence he might elect whether to let the estate or occupy it for the ward's benefit. He was considered as entitled to the possession of the ward's property, and incapable of being removed from it by any person. In other words, this guardian had the legal, but not the beneficial interest. Not long after the statute of Charles II. chancery was called upon to deter- mine the nature of testamentary guardianship. Lord Maccles- field, in the case of Duke of Beauford v. Berty,^* stated that testa- mentary guardians were but trustees; that the statute merely "'; empowered the father to appoint a different person as guardian and to continue the relation beyond the age of fourteen, and until the ward became twenty-one ; and that both socage and testamen- tary guardians were equally trustees. And in the important case of Eyre v. Countess of Shaftsbury,^^ this principle, though with another admitted difference as to succession, was again affirmed. 21. Macphers. Inf. 119; Anon. 2 See, however, Simpson v. Eoberts, 205 Ves. Sen. 374. HI. App. 35. 22. Becnel v. Louisiana Cypress 28. Co. Litt. 90a; Plowd., ch. 23. Lumber Co., 134 La. 467, 64 So. 380; See ante, § 813. Flach v. Fassen, 3 Mo. App. 562. 24. 1 P. Wms. 703. 25. 2 P. Wms. 102. § 863 G0AEDIAN AND WAED. 9Y2 This general rule has received judicial sanction in England much more recently.'* Chancery guardianship, of still later origin, resembles in its nature testamentary guardianship. The same principles are con- stantly asserted in regard to both. In either case, the guardian has a vested interest in his ward's estate, may bring actions relative thereto, and make leases during the minority of the infant. He has in all respects the dominion pro tempore of the infant's estate, and possesses more than a naked authority.^^ The same may be siaid of probate guardianship in this country, which, under statute modifications, has become, if anything, more like trusteeship than the other kinds. °' And in Thompson v. Boardmarv'^ the analogies of the old law have been extended to the case of a spendthrift's guardian. It is often difficult to say what in strictness is a trustee, since every trust is limited by the instrument which creates it. The powers of a guardian differ greatly from those of an executor or administrator. But so far as guardianship of the estate is con- cerned, a guardian is in fact a trustee; for he holds the legal estate for the benefit of another.*" To apply the term " agent " to the guardian's office seems therefore harsh and unnatural, what- ever may be the ward's position.*^ § 863. Joint Guardians. Where there are two or more testamentary guardians, and one of them dies or is removed, the survivor or survivors shall continue. 26. Gilbert v. Sehwenck, 14 M. W. In re Pinchefski, 166 N. T. S. 204, 488; s. c, 9 Jur. 693. 179 App. Div. 578. See Walker v. 27. People v. Byron, 3 Johns. Cas. Thompson, 145 Ky. 597, 140 S. W. (N. Y.) 53. 1045. 28. See Truss v. Old, 6 Rand. 556; 31. But see dictum of Shaw, C. J., Isaacs V. Taylor, 3 Dana, 600; Alex- in Manson v. Felton, 13 Pick. 206; ander v. Alexander, 8 Ala. 796; Pep- Muller v. Benner, 69 111. 108. And per V. Stone, 10 Vt. 427 ; Lincoln v. Soule, J., observes, in EoUins v. Marsh, Alexander, 53 Cal. 482. 128 Mass. 116, that guardians of 29. 1 Vt. 370. minor spendthrifts or insane persons 30. See Wall v. Stanwiek, 34 Ch. have only a naked power not coupled B. 765, citing with approval Mathew with an interest. V. Brise, 14 Beav. 341. As the rights and duties of such The guardian is a trustee of the guardians, probate guardians included, estate of the ward and held accounta- depend so greatly upon local statutes, ble for prudent management. Smith local jurisdictions may be found to V. Smith, 210 P. 947; Eeynolds v. differ as to the nature of the Garber-Buick Co., 183 Mich. 157, 149 guardian's office, which, after all, is N. W. 985, L. E. A. 1915C, 362; sui generis. 973 NATURE OF OFFICE, § 863 The very nature of the trust demands it.^^ In England, it is otherwise with joint guardians by chancery appointment; for if one dies, the office determines.*^ But the survivors will be ap- pointed without a reference,** so that after all the rule is only formal. In this country the more reasonable doctrine prevails, as to both chancery and probate guardianship, that the survivors shall continue the trust, like co-executors, and on the same prin- ciple. This was declared to be the rule as to joint chancery guar- dians in a leading New York case.*° And a Vermont court ap- plies it likewise to probate guardians.*' The statutes enacted in many of the States remove all further doubt on the subject. Of two or more persons appointed joint guardians under a will, one may qualify without the other ; *' and where one declines to act, all the rights and powers created by the appointment under the will may devolve upon the other.** But while a joint guardian who had once declined the trust has no further right to be ap- pointed, he may yet be selected in preference to others to fill a vacancy Thus it has been held that where three testamentary guardians, one of whom was the mother, were named by the father in his will, and the mother became sole guardian by the refusal of the others to act with her, they were properly selected by the court, after the mother's death, on their own application, in preference to the person nominated in her will.*^ The authority of joint guardians must in general be exercised by both together,*" and on the principle that guardians are trus- tees, it is held that joint guardians may sue together on account of any joint transaction founded on their relation to the ward, even after the relation ceases.*^ Also that the receipt of one is the receipt of all.*^ Also that one can maintain trespass against the other for forcibly removing the child against his wishes ; as one 32. See Bae. Abr., Guardian (A.) . 37. Kevan v. "Waller, 11 Leigh, 414. 33. Bradshaw v. Bradshaw, 1 Eusa. 38. Matter of Reynolds, 18 N. T. 528. Supr. 41. 34. Hall V. Jones, 3 Sim. 41. 39. Johnston's Case, 2 Jones & Lat. 35. People v. Byron, 3 Johns. Cas. 222. 53. 40. Sargent v. Shaver (Okla.), 172 36. Pepper v. Stone, 10 Vt. 427. P. 445. See also remarks of Chancellor San- 41. Shearman v. Akins, 4 Pick. 283. ford, in Kirby v. Turner, Hopk. 309, 42. Alston v. Munford, 1 Brock, as to the nature of joint guardian- 266. ship. § 864 GUARDIAN AND WAED. 974 of two joint trustees cannot act in defiance of the otlier/^ And where one guardian consents to his co-guardian's misapplication of funds, he is liable/* The fact that one joint guardian is dead will not prevent the co-guardian's prior accounts from being opened on a final settlement in court/^ Guardians, like other trustees, — executors and administrators excepted, — m'S.j portion out the man- agement of the property to suit their respective tastes and qualifi- cations, while neither parts irrevocably with the control of the wbole; and in such case each is chargeable with no more than what he received, unless unwarrantable negligence in superintend- ing the other's acts can be shown.*' And the discharge of one who bas received no part of the estate relieves Mm from liability.*'' On the other hand, it is presumed that the survivor of joint guardians received tie whole estate, in absence of proof to the contrary.** Guardianship over several minors is not a joint relationship, but involves duties that are several.** § 864. Judicial Control of the Ward's Property. In English practice, the court of chancery holds the ward's property within its grasp with a tightness unknown to American tribunals. Tbe regular course is to get in all the money due the infant, and to invest it in the public funds. A receiver is, if necessary, appointed to facilitate collections, and generally the same person is made a permanent receiver of the ward's real estate, to collect all rents. Where there is an executor he will not be interfered with, except under strong circumstances of suspicion, but an administrator is treated with less consideration."" Even executors who are also testamentary guardians must bring their funds into court after settling up the estate of their testator."^ Chancery, thus managing actively the ward's property, makes its own scheme for maintenance, and allows the guardian a certain fixed income accordingly.'^ Probate guardianship in this country is quite different. 43. Gilbert v. Schwenk, 14 M. & W. 48. Graham v. Davidson, 2 Dev. & 488. Bat. Eq. 155. 44. Pirn V. Downing, 11 S. & E. 66. 49. Probate Judge v. Stevenson, 55 See Clark's Appeal, 18 Pa. St. 175. Mich. 320, 21 N. W. 348. 45. Blake v. Pegram, 101 Mass. 593. 50. Macphera. Inf. 268, and cases 46. Jones's Appeal, 8 Watts & S. cited. 143. 51. Macphera. Inf. 118; Blake v. 47. Hocker v. Woods, 33 Pa. St. Blake, 2 Seh. & Lef. 26. 466. 52. Macphers. Inf. 213 et seq. 975 BTATUKE OF OFFICE. § 865 Schemes of maintenance are seldom heard of. ISTor are receivers appointed. The guardian usually collects his ward's dues, whether from the executor of the parent or others, and manages the prop- erty on his own responsibility, with little judicial interference. He regulates at discretion the sum proper for annual expenditure, and changes the rate when expedient. Of course he is held ac- countable, on legal principles, much the same as those of the English chancery; but he seldom applies to the court for direc- tions, unless some perplexity arises, or it becomes expedient to sell real estate, or when the ward cannot be supported without break- ing in upon the principal fund. § 865. Guardianship and Other Trusts Blended. The same person is frequently executor under the parent's will and also guardian of the minor children. Hence the question will sometimes arise whether he holds the fund in the one or the other capacity. It is clear that where one is both guardian and execu- tor, he cannot be sued in both capacities; nor are both sets of sureites liable."* He is in the first instance liable as executor; and in general, to render him liable as guardian, there should be some distinct act of transfer. His plain duty is to keep the trusts distinct and not blend them. In the former case, his accounts rendered will show the transfer of the legacy or distributive share from his account as executor to his account as guardian; and thereby his liability as guardian will become fixed."* But in the latter case, or if no clear evidence appears elsewhere of an actual transfer, can it be presumed ? The better opinion is that, after the time limited by law for the settlement of the estate has elapsed, and there is no evidence of intent to hold longer as executor, he shall be presumed a guardian ; on the principle that what the law enjoins upon him to do shall be considered as done."" And cer- tainly very slight evidence would confirm any possible doubt ; such as the division of the parent's estate among other heirs, the pay- 68. Wren v. Gayden, IHow. (Miss.) (Del.) 424; contra, Conkey v. Dickin- 365. son, 13 Met. 51; Stillman v. Young, The court may decline to appoint 16 111. 318; Foteaux v. Lepage, 6 ail executor guardian of a child in- Clarke (la.), 123; Scott's case, 36 terested in the estate on account of Vt. 297. the fact that the executor must ac- 55. Watkins v. State, 4 Gill & count to the guardian, see onte, § 838. Johns. 220; Karr v. Karr, 6 Dana, 64. Alston V. Munford, 1 Brock. 3; Crosby v. Crosby, 1 S. C. (N. 8.) 266- Burton v. Tunnell, 4 Harring. 337; Wilson v. Wilson, 17 Ohio St. § 865 GUAEDIAN AND WAED. 976 ment of legacies, or where lie has placed some of the chattels on the "ward's farm/° or has charged himself in the new capacity, credit- ing himself in the former one.°' But the rule may be otherwise with joint executors or administrators; °* and we need hardly add that this doctrine applies in strictness only to personal assets which pass through administration; since real estate, ordinarily, goes at once to the heir. Acts, too, inconsistent with the purpose of hold- ing as guardian, and consistent with that of continuing adminis- trator or executor, should not readily be construed to a ward's prejudice; but rather, if need be, serve to repel the presumption of guardianship, and in any event to aid the beneficiary who seeks redress." If a legacy is given under a will to an infant, which he is not to receive unless he attain full age, it would appear that the simpler course is for the executor to retain the fund during the infant's minority ; yet it is held that a probate guardian may, at the court's discretion, be appointed to receive the fund and hold it subject to the restriction contained in the will.°° If a guardian has duly qualified, the child's legacy or distributive share should be paid over to the guardian. A guardian of the estate of minors may contest the account of an executor or administrator in an estate where his wards are interested.*^ A guardian cannot blend distinct trusts of guardianship by appointment. Thus, where a person was appointed guardian of an infant who became insane shortly before reaching his majority, and the same gTiardian continued to act, styling himself guardian of "A. B., an idiot," it was held that his trust properly expired 150; Townsend v. Tallant, 33 Cal. 45; v. Harrison, 78 N. C. 202. And see Be Wood, 71 Mo. 623; Weaver v. Coleman v. Smith, 14 S. C. 511. So, Thornton, 63 Ga. 655. too, where a guardian subsequently 56. Johnson v. Johnson, 2 Hill, Ch. becomes trustee. State v. Jones, 68 277; Drane v. Bayliss, 1 Humph. N. C. 554; Perry v. Carmichael, 95 174. 111. 519. 57. Adams v. Gleaves, 10 Lea, 367. 60. Gunther v. State, 31 Md. 21; And see Thurston v. Sinclair, 79 Va. Moody Me, 2 Dem. 624. For the rule 101. concerning money paid under rules of 58. Watkins v. State, 4 Gill & the TJ. S. Treasury, see Low v. Han- Johns. 220; Coleman v. Smith, 14 S. son, 72 Me. 104. See also Landis v. C. 511. Eppstein, 82 Mo. 9?. 69. In doubtful cases of this kind, 61. Appointment of an attorney to the modern inclination is to let the represent the minors does not super- ward sue both sets of sureties, or sede the guardian's rights in this re- either, leaving them to adjust their spect. Eose's Estate, 66 Cal. 241. equities among themselves. Harris STT NATUEE OF OFFICE. § 867 with the infancy of the minor."* Nor does it matter that the pro- bate court recognizes a continuation of the trust by passing his accounts; for an actual appointment, after the regular form, is always essential to a guardian's authority."* But the guardian of a minor has sufficient authority to act during the ward's minority, whether the ward be of sound or unsound mind ; and those things which a guardian may lawfully do for his infant ward are none the less lawful because it turns out afterwards that the ward was § 866. Administration Durante Minore Aetate. Where the person designated as executor of a will is under age, it becomes necessary to appoint an administrator during minority, which appointment was at common law denominated durante minore wtate."^ So when the next of kin is under age, the English practice in such cases is to appoint the infant's guardian, unless there be some other next of kin competent to act ; though the rule is not invariable." And in the English case of John v. Bradbury it is affirmed that the guardian of an infant sole next of kin shall ' not only administer in preference to creditors, but shall be ex- empted from security, except in very strong cases, notwithstanding the creditors request if So he is preferred to the husband of a married woman who died after a judicial separation."' But in this country, while there are statutes in some States favoring similar doctrines, in others the court has full discretion in selecting a substitute for the child."° Such administrator has for the time being all the powers of a general administrator, but his term of office is restricted to the infant's minority.'"' § 867. Guardians de Facto. A quasi guardianship often arises at law where there has been no regular appointment, or an appointment without jurisdiction or some intermeddling; or even where the minor's property is pur- 62. Coon V. Cooke, 6 Ind. 268. 67. John v. Bradbury, L. E. 1 P. 63. But see King v. Bell, 36 Ohio & B. 245. St. 460. 68. Goods of Stephenson, L. B. 1 64. Francklyn t. Sprague, 121 TT. 8. P. & D. 287. But the husband usually 215. administers. See post, Vol. II. 65. 1 Wms. Bx'rs, 419, 420; 2 69. 1 Wms. Ex'rs, 419. Bedf. Wills, 92, 93. 70. 1 Wms. Ex'rs, 428, and notes; 66. 76. fiehouler, Executors, §§ 132, 135. 62 § 868 GUAEDIAN AND WAED. 978 chased by one confidentially related to him.'^ The general prin- ciple thus recognized is that any person who takes possession of an infant's property takes it in trust for the infant. Hence courts of equity will always protect the helpless in such cases by holding the person who acts as guardian strictly accountable. The father may thus be a quasi guardian.'^ So may a step-parent/' or a step- grandparent/* or a widowed mother who marries again,'" or one whose appointment as guardian was irregular or null ; " but not an executor or administrator in rightful possession of the infant's property, for he holds in a different capacity.'' A son who takes charge of an incompetent father's estate, with the latter's acqui- escence, may make his father an equitable ward.'* Chancery has full jurisdiction over the transactions of all persons standing in loco -parentis/^ and a guardian de facto may be ordered to account in equity but not in the probate court.*" On the same principle, one regularly appointed guardian of an infant is held responsible for acts committed before qualifying as such by giving bonds.*^ And although his authority ceases when the ward attains majority, he continues personally responsible so long as his possession and control of the property continues.'^ § 868. Extra-territorial Rights of Guardians in General. The guardian's . authority is limited to the jurisdiction which appoints him, and does not extend to foreign countries, unless permitted by foreign laws. Every nation is sovereign within its own borders, but powerless beyond them. The rights of foreign guardians have been to some extent admitted, however, on the 71. See Hindman v. O'Connor, 54 See also Munroe v. Phillips, 64 Ga. Ark. 627. See supra, § 825. 32; Sherman v. Wright, 49 N. T. 72. Pennington v. Fowler, 3 Halst. 227. Ch. 343; Alston v. Alston, 34 Ala. 15. 79. Espey v. Lake, 15 E. L. & Eq. 78. Espey v. Lake, 15 E. L. & Eq. 579. 579. 80. Campbell v. O'Neill, 69 W. Va. 74. 54 Ark. 627. 459, 72 S. E. 732. 75. "Wall V. Stanwiek, 34 Ch. D. 81. Magruder t. Damall, 6 Gill 763. (Md.) 269. 76. Crooks v. Turpin, 1 B. Monr. 82. Melliah v. Mellish, 1 Sm. & 185; Earle v. Cmm, 42 Miss. 165; Stu. 138; Armstrong v. Walkup, 12 McClure V. Commonwealth, 80 Pa. Gratt. 608. "Whether a woman's let- St. 167; State v. Lewis, 73 N. C. 138. ters abate or not on her marriage, she 77. Bibb V. McKinlej, 9 Port. 636 ; is liable if she allows her husband to Minfee v. Ball, 3 Eug. 520. use the ward's property. Hood t. 78. Jacoz V. Jaeox, 40 Mich. 473. Perry, 73 Ga. 319. 979 NATURE OF OFFICE. § 869 principle of comity.'' These rights may be considered, first, as io the person of the ward ; second, as to his estate. § 869. Rights of Foreign Guardian as to Ward's Person. First, as to the ward's person. Many writers on public law claim that the guardian's authority extends everywhere. Others again deny that it extends beyond the jurisdiction which appoints.'* In England, the paternal authority is recognized, even in aliens; but if an infant has a guardian appointed by any other authority out of the jurisdiction, the appointment fails as soon as the infant comes to England, and the court of chancery will thereupon appoint a guardian on petition."' Yet in an English case liberal favor was shovTn toward the foreign guardian of wards domiciled abroad. He had sent them to England to be educated, and wished to remove them to their own country in order to complete their education. The court refused to interfere with their removal, and allowed the exclusive custody to the foreign guardian ; at the same time, how- ever, refusing to discharge an order appointing English guar- dians.** Tn this country, the rights and powers of guardians over the ward's person are considered strictly local, even as between differ- ent States,*^ though the paternal right would probably be recog- nized as in England.'* But the custody of a child may be awarded to a foreign guardian, as while he has no absolute right to the child, his office will be deemed an important element in determin- ing to whom custody should be given." 83. See Story, Confl. Laws, §§ 492- Confl. Laws, §§ 261-264; Eice's Case, 529. Interference hj English ap- 42 Mich. 528. We have seen that the pointment with a French guardian- courts of a State or country will take ship declined, where the infant lived jurisdiction for the time being where in France. 41 Ch. D. 310. the ward 'bona fide resides in the 81. See Story, Confl. Laws, §§ 495- jurisdiction, though not perhaps domi- 497, and authorities cited. ciled there. Supra, § 831. Such ap- 85. Macphers. Inf. 577; Ex parte pointment may not clothe the guar- ■Watkins 2 Ves. 470. dian with extra-territorial authority, 86. Nugent v. Vetzera, L. R. 2 Eq. yet it is not void. 704. See 27 E. L. & Eq. 451. 88. See Townsend t. Kendall, * 87. Story, Confl. Laws, § 499; Mor- Minn. 412. rell V. Dickey, 1 Johns. Ch. 153; 89. Woodworth v. Spring, 4 Allen Kraft V. Wickey, 4 Gill & Johns. 332; (Mass.), 321; In re Crosswell's Peti- Bumet V. Burnet, 13 B. Monr. 323; tion, 28 E. I. 137, 66 A. 55. Boyd V. Glass, 34 Ga. 253; Whart. § 870 GUAEDIAN AND WAED. 980 § 870. Rights of Foreign Guardian as to Ward's Property. Second, as to the ward's property. A distinction has been made between movables and immovables. As to immovable property, such as real estate, it is almost universally admitted that the law rei sitoB shall govern.*" But writers do not agree as to movable property, such as goods and personal chattels, whether the law of the domicile shall prevail over that of the situation. Judge Story considered the weight of foreign authority in this respect, in favor of admitting the guardian's rights to prevail everywhere to the same extent as they are acknowledged by the law of the domicile.**^ And this seems to be the Scotch doctrine.*^ But according to the doctrine of the common law, now fully established both in England and America, the rights of a guardian over all property whatsoever are strictly territorial, and are recognized as having no influence upon such property in other countries where different systems of jurisprudence are established. No foreign guardian can, by virtue of his oflBce, exercise his functions in another country or State, without taking out other letters of guardianship or otherwise con- forming to the local law; while, on the other hand, local courts consider their ovm authority competent within the jurisdiction, if the ward's property be located there. Such is the rule in both countries." And hence a foreign general guardian is often re- quired to take out ancillary letters in the courts of a State in which he desires recognition.** 90. Story, Confl. Laws, §§ 500-502. without the guardian's assent, the And see post, § 943. As between courts of the former State incline to West Virginia and Virginia, see uphold the guardian of their jurisdic- Sinker v. Streit, 33 Gratt. 663. tion against a guardian appointed in 91. Story, Confl. Laws, § 503; the other State as to rents of lands. Schouler, Pers. Prop. 347-385; Whar- Munday v. Baldwin, 79 Ky. 121. Be- ton, Confl. Laws, §§ 265, 266. fore permitting an infant's property 92. Story, Confl. Laws, § 503; to be transferred beyond the Stat© Fraser, Parent & Child, 604. limits, the court must be satisfied that 93. Story, Confl. Laws, § 504 ; supra, the guardian has been regularly ap- § 303; Eice's Case, 42 Mich. 528; pointed according to the laws of the Weller v. Suggett, 3 Eedf. 249; Hoyt State where the ward resides, that V. Sprague, 103 U. S. Supr. 613; the guardian is fit for the appoint- Leonard v. Putnam, 51 N. H. 247. ment, and that sufficient security has A3 to a contract by a person under leen given. Cochran v. FiUans, 20 guardianship, made in another State S. C. 237. A guardian properly con- and valid there, see Gates v. Bing- gtituted in the State of the ward's ham, 49 Conn. 275. Where an infant, residence is favored. Watt v. All- domiciled and having a guardian in good, 62 Miss. 38. one State, is taken to another State 94. Gunther Se, 3 Dem. 386. «81 NATUEE OF OFFICE. § 870 But the rigor of this rule is sometimes abated. In England, personal property will, under certain circumstances, be paid to an owner who, if domiciled and resident in that country, would not be allowed to receive it.*° In this country there are local statutes which permit non-resident guardians to sue on compliance with certain formalities, or even without them," and it is commonly provided by statute that a non-resident guardian may be appointed guardian in the State by filing a transcript showing his appoint- ment," which transcript must, however, show whether he is guar- dian of the person or of the estate," but a foreign guardian has no greater authority than a domestic guardian and cannot sell the real estate without special license."* Letters of guardianship have no extra-territorial effect, and Bence a guardian cannot bring suit in one State by virtue of foreign letters,^ unless admitted to do so on compliance with local statute or possibly by comity.^ And this seems to be the English rule likewise.^ Nor will the courts of one State enforce the obligation of a probate guardian's official bond with sureties given in another 95. Macphers. Inf. 577; Goods of Countess Da Cunha, 1 Hag. 237. 96. Ex parte Heard, 2 Hill Ch. 54 ; Hines v. State, 10 S. & M. 529 ; Sims v. Eenwick, 25 Geo. 58; Giist v. Forehand, 36 Miss. 69 ; Martin v. Mc- Donald, 14 B. Monr. 544; Carlisle v. Tuttle, 30 Ala. 613 ; Warren v. Hofer, 13 Ind. 167; Ee Fiteh, 3 Eedf. 457; Shook V. State, 53 Ind. 403. 97. Ex parte Huffman, 167 F. 422 ; McGoodwin v. Shelby (Ky.), 206 S. "W. 625; Orr v. Wright (Tex. Civ. App. 1898), 45 S. W. 62ff. 98. Gill V. Everman, 94 Tex. 209, 59 S. W. 531, 60 S. W. 913; Orr. v. Wright (Tex. Civ. App. 1898), 45 8. W. 629. 99. Woolridge v. Woolridge, 26 Ky. Law Eep. 97, 80 S. W. 775; Curtis v. TTnion Homestead Ass'n, 126 La. 959, 53 So. 63; Adkins v. Loucks, 107 Wis. 587, 83 N. W. 934. See Landreth v. Henson, 173 S. W. 427. 1. In re Kingsley, 160 F. 275; Pul- ver V. Leonard, 176 F. 586 ; HofEman v. Watkins (Tex. Civ. App. 1910), 130 S. W. 625; Morrell v. Dickey, 1 Johns. Ch. 153; Kraft v. Wickey, 4 GiU & Johns. 322 ; Eogers v. McLean, 31 Barb. 304. This is the rule, too, in Louisiana. Succession of Shaw, 18 La. Ann. 265; Succession of Stephens, 19 La. Ann. 49ff. But as to institut- ing proceedings to call the resident guardian to account, see 109 HI. 294; 33 S. C. 350. 2. Miller v. Cabell, 81 Ky. 178, 4 Ky. Law Eep. 962; Berluchaux v. Berluchaux, 7 La. 545; Curtis v. Union Homestead Ass'n, 126 La. 959, 53 So. 63; In re Eiee, 42 Mich. 528, 4 N. W. 284; Hanrahan v. Sears, 72 N. H. 71, 54 A. 702; Pennsylvania Co. V. Eaub, 30 Ohio Cir. Ct. E. 542; In re Crosby, 42 Wash. 366, 85 P. 1. See Smith v. Madden, 78 F. 833 (in federal court). 3. Story considers it doubtful. Beattie v. Johnston, 1 Phillips, Ch. 17; 10 CI. & Fin. 42; contra, Mor- rison's Case, cited in 4 T. E. 149, and 1 H. BI. 677, 682. § 870 GUABDIAN AND -WAED. 982 State.* The question whether the foreign jurisdiction has con- ferred similar privileges upon citizens of the local forum carries some weight.^ But a court having general chancery jurisdiction over matters of guardianship may, it appears, in the exercise of sound discretion, and upon principles of comity, equity, and jus- tice, order assets of the ward in the possession of a guardian i'esident within its jurisdiction to be delivered to the guardian abroad." A foreign guardian has no authority to settle a cause of action of the ward in the State.'' A foreign guardian may be sued in the foreign State only if qualified to sue in the foreign State,* and not otherwise.* Though the power of the guardian is local to the State in which he receives his appointment, yet he is competent to receive the property or custody of the ward in a foreign State to be taken to the State where both belong if he makes proof of his guardianship,^* although the guardian obtains no title to the property which re- mains in the ward," but the transfer to the foreign jurisdiction is not a matter of strict right, but rests in the sound discretion of 4. Probate Court v. Hibbard, 44 Vt. In. 167; Vick v. Hibbs, 18 Ky. Law 597. Bep. 820, 38 S. "W. 711 (even where 5. 13 Phila. 385, 389. The authority ward has removed after appointment of a guardian of a non-reaident minor of guardian in the State where the is Kmited usually to the particular property still remains) ; McKee v. local properly which confers a juris- Stein's Guardian, 4 Ky. Law Eep. diction. Linton v. First Nat. Bank, 900; Boyle v. GriflSn, 84 Miss. 41, 10 Fed. B. 894. See Hart v. Czapski, 36 So. 141 (without filing letters in 11 Lea, 151. But in accounting for this State); Mitchell v. People's Sav. his investments a non-resident guar- Bank, 20 E. I. 500, 40 A. 502 (notice dian should not be held to a narrower need not be served on ward, nor a range of securities than the law of guardian ad litem appointed) ; the ward's domicile allows. Lamar v. Snavely v. Harkrader, 29 Grat. (Va.) Micou, 114 U. S. 218. 112; Fidelity Trust Co. v. Davis Trust 6. Earl v. Dresser, 30 Ind. 11. Co., 74 W. Va. 763, 83 S. E. 59. 7. Devine v. American Posting Ser- An amended petition for the trans- vice, 174 111. App. 403; McGoodwin fer of property out of the resident V. Shelby (Ky.), 206 S. W. 625. guardian's hands, pursuant to Code 8. Fenner v. Succession of McCann, 1913, ch. 84, §§ 3, 5 (§§ 3981, 39'83), ^■9 La. Ann. 600, 21 So. 768. held not vitiated by its failure to 9. Boyle v. Griffin, 84 Miss. 41, 36 refer to the original petition. Id. So. 141. See Central Trust Co. of Illinois v. 10. Carlisle v. Tuttle, 30 Ala. 613; Heame, 78 W. Va. 6, 88 S. E. 450. Sturtevant v. Eobinson, 133 6a. 564, 11. Williams v. Cleaveland, 76 Conn, 66 S. E. 890; Warren v. Hofer, 13 426, 56 A. 850. 983 NATUSE OF OFFICE. § 871 the court," which may require good security/^ or direct the pay- ment of a regular allowance," or refuse payment altogether; ^"^ the welfare of the infant being always considered in such cases. A foreign guardian who improperly removes funds of his ward out of the State may be ordered to bring them back if jurisdiction over them can be obtained.^" The principles applicable to non-resident guardians in this country appear in many respects similar to those in case of foreign executors and administrators, and the rules we have stated might be subjected to modification by the mutual treaty stipulations of two independent governments.^'' The law of domicile controls properly as to the ward's capacity and the time when the law frees him from the disabilities of infancy." § 871. Constitutional Questions Relating to Guardianship. As each legislature in this country derives its authority from a written constitution, questions sometimes arise in our court* as to the validity of certain statutes, which in Great Britain are of no importance, since there an act of Parliament is the supreme 12. Earl v. Dreaser, 30 Ind. 11, 95 Am. Dec. 660; Marts v. Brown, 56 Ind. 386; Blanchard v. Andrews, 90 Mo. App. 425; Banning v. Gotshall, 62 Ohio St. 210, 56 N. E. 1030. 13. Hoffman v. Watkins (Tex. Civ. App. 1910), 130 S. W. 625 (must give bond to pay local debts) ; Case of Andrews' Heirs, 3 Humph. 592; Martin v. McDonald, 14 B. Monr. 544; Be Fitch, 3 Eedf. 457. 14. MeNeely v. Jamison, 2 Jones, Bq. 186. And see Bx parte Dawson, 3 Bradf. 130; McLiskey v. Eeid, 4 Bradf. 334. 15. See 2 Story, Eq. Juris., § 1354b; Stephens v. James, 1 M. & K. 627. Letters are thus granted in the State having property, ancillary to the guardianship in child's domicile or residence. Metcalf v. Lowther, 56 Ala. 312; Marts v. Brown, 56 Ind. 386. As to the right of foreign guar- dian to petition for appointment of guardian ad litem without ancillary letters, see Treund v. "Washburn, 17 Hun, 543; Shook v. State, 53 Ind. 403. As to a foreign guardian's right to transfer stock, see Boss v. South- western R., 53 Ga. 514. An order of court does not authorize a foreign guardian beyond its own terms. Wil- liams v. Duncan, 92 Ky. 125. Suit cannot be brought in a federal court. Morgan v. Potter, 157 U. S. 195. 16. Clendenning v. Conrad, 91 Va. 410, 21 S. E. 818. 17. Comomnwealth v. Ehoads, 37 Pa. St. 60. And see Pratt v. Wright, 13 Gratt. 175. The guardian of a minor who receives property of his ward in a foreign country or State must account for it, unless he can show that he has accounted for it abroad. Secchi's Estate, Myrick's Prob. 225. As to the proper course for care and transfer of the ward's money when a ward removes from the jurisdiction, and a new guardian is appointed in the State of his new domicile, see Suavely v. Harkrader, 29 Gratt. 112. 18. Woodward v. Woodward, 8T Tenn. 644. § 871 GXTAEDIAN AND WABD. 984 law. Thus it is not uncommon for our legislatures to authorize or confirm the sale of lands held by guardians and other trustees by special statutes ; and such statutes have been attacked either as an interference with the property rights of infants and their heirs, or as an usurpation of judicial functions/* Such acts are, how- ever, constitutional, unless expressly forbidden, according to the best authorities, where at least the object is simply to provide for a change of investment for the beneficiary, and not to divest the latter of property rights.^" But in a New Jersey case it was inti- mated by the Chancellor that, if fraud or sinister motives on the guardian's part were showu, the special act might be judicially avoided.^^ An act of the legislature may authorize a certain guardian to sell the real estate of his infant ward, subject to the approval of the sale by the probate court. ^^ It is held that the legislature may enable a foreign guardian to sell lands within the State.^* So a general law may be enacted, for enabling guardians and other trustees to enter into agreements as to the disposition of property held by them, consistently with constitutional provisions which protect the rights of individuals ; notwithstanding the rights of persons remotely interested in the estate, who are either not in existence or only contingently concerned, may be thereby com- promised without their assent.^* Doubtless the wiser policy of the legislature is to refer all cases of this kind to the courts under general laws; and thus do some State constitutions expressly require.^" 19. See Davison v. Johonnot, 7 25. Per curiam, in Brenham v. Met. 388, for a full discussion of Davidson, 51 Cal. 353. An act of the the question. legislature cannot authorize a 20. Clarke v. Van Surlay, 15 Wend. stranger, apart from guardianship, to 436; Cochran v. Van Surlay, 20 sell an infant's land or other prop- Wend. 365; Davison v. Johonnot, 7 erty as an individual, and so confer Met. 3S8; Snowhill v. Snowhill, 2 a good title; and certainly no act Green, Ch. 20; Brenham v. Davidson, will be readily interpreted to mean 51 Cal. 353; Hoyt v. Sprague, 103 this. The aale is supposed to be au- tr. S. Supr. 613. But see opinion of thorized as of one in the guardian or Justices, cited in 4 N. H. 572; Jones trust capacity, and to require or to V. Perry, 10 Terg. 59. respect his due appointment. Paty v. 21. Snowhill v. Snowhill, 3 Green, Smith, 50 Cal. 153; Lincohi v. Alex- Ch. 20. ander, 52 Cal. 382. See, further. Ex 22. Brenham v. Davidson, 51 Cal. parte Atkinson, 40 Miss. 17, to the 352. effect that under the former eonsti- 23. Boon V. Bowers, 30 Miss. 246; tution of that State no probate guar- Nelson V. Lee, 10 B. Monr. 495. diau could be appointed over a child 24. Clarke v. Cordis, 4 Allen, 466. whose father was living. 985 THE wakd's pebson. § 873 CHAPTER V. EIGHTS AND DUTIES OF GUAEDIANS CONCEENING THE WAEd's PEESON, Bection 872. Division of This Chapter. 873. Guardian's Eight of Custody. 874. Testamentary Guardians. 875. Parent's Eights to Custody. 876. Parent's Eight of Access. 877. Eabeas Corpus to Determine Custody. 878. Guardian's Eight to Change Ward's Domicile or Eesidence. 879. Eight to Personal Services of Ward. 880. Guardian's Duties as to Ward's Person; In General. 881. Liability for Support of Ward.' 882. Support by Guardian Before and After Guardianship. 883. Board Furnished by Guardian. 884. Services of Ward to Guardian to be Credited. 885. Allowance to Parent for Ward's Support; Chancery Eules. 886. Secular and Eeligious Education of Ward by Guardian. 887. Use of Income or Principal. § 872. Division of This Chapter. As tie guardian of a minor stands in the place of a parent, sub modo, iiis rights and duties, so far as concerns the person of his ward, are to be considered correspondingly with those of a parent. His rights relate chiefly to the ward's personal custody. His duties are those of protection, education, and maintenance. These rights and duties will be considered at length in the present chapter. § 873. Guardian's Right of Custody. Guardianship, generally, carries with it the custody of the ward's person. This is especially true where the ward's parents are both dead or incompetent to act, for natural guardians have the prior claim to custody while alive. Someone must exercise the right of custody of the infant when the natural protector is wanting ; and who is more suitable than the officer invested by law with the responsibility of paying for the child's education and maintenance ? Hence the guardian's title is, in this respect, higher than that of relatives and friends; and he may insist upon taking the child from the control of a stepmother or grandmother, or from any § 873 GUAEDIAN AND WAED. 986 person to whom the father has informally committed the care.^' For such considerations, however material in determining the selection of a guardian, become superseded by the actual appoint- ment. And it has been said that the decision of the court as to the guardian's appointment is a final decision as to the care and custody of the ward,^^ but guardianship of a minor's estate gives no right to custody of his person,^" although custody of the person may be given to the guardian of the estate.^* But the custody of infants, as we have seen, is a subject within the free discretion of courts of equity ; and where the interests of the ward require it, the care of his person will be committed to others,*" and the court may even make some temporary provision for custody pendente lite.^^ Chancery jurisdiction applies in this respect to testamentary and chancery guardianship. The good of the child is superior to all other considerations. Of this the court will judge in each case by the circumstances, and make orders accordingly, both as to actual custody and as to the persons who may have access to the child. In determining where the infant shall reside, the infant's inclination shall have considerable weight, if he be of sufficient age; but not, it would appear, during the period of nurture.*^ As to probate guardians, it is to be added that the more natural course, so far at least as strangers and distant 26. Coltman v. Hall, 31 Me. 196; 30. Roach v. Garvin, 1 Ves. 160; Bounell v. Berryhill, 2 Cart. 613; Macphers. Inf. 119; Story, Eq Juris. Johns v. Emmert, 62 Ind. 533. § 1341 ; Ward v. Roper, 7 Humph. 27. Cottrell v. Booth, 166 Ind. 469, 111. 76 F. E. 546; Mason v. Williams, 165 31. In re North, 11 Jur. 7. See An- Ky. 331, 176 8. W. 1171; In re derton v. Tates, 15 E. L. & Eq. 151; Brown, — La. — , 44 So. 919; In re Smith v. Haas, 133 la. 493, 109 N. Lamb's Estate, 139 N. T. S. 685; W. 1075 (although guardian already Senseman's Appeal, 21 Pa. St. 331; appointed). See McLain v. Brewing- Stringfellow v. Somerville, 95 Va. 701, ton (Ark.), 211 S. W. 174 (court may 29 S. E. 685, 40 L. R. A. '623. properly refuse to transfer custody 88. In re Healther, 50 Mich. 261, during contest over guardianship). 15 N. W. 487. See Bell v. Bell's 32. Anon. 2 Ves. Sen. 374; Regina Guardian, 167 Ky. 430, 180 S. W. v. Clark, 40 E. L. & Eq. 109 ; People 803 (one removed as guardian of es- v. Wilcox, 22 Barb. 178; Bounell v. tate may be retained as guardian of Berryhill, 2 Cart. 613; Rex v. Green- the person). hill, 4 Ad. & El. 642; Gamer v. Gor- 29. Stone v. Duffy, 219 Mass. 178, don, 41 Ind. 93. See supra, §§ 873- 106 N. E. 595 (if parent unfit). See 875, as to custody. Sparkman v. Stout (Tex. Civ. App.), The wishes of the ward will not dis- 212 S. W. 526 (custody not awarded place the rights of the guardian as to in proceedings for appointment). custody. Palin v. Voliva, 158 Ind. 380, 63 N. E. 760. ^87 THE ward's peeson. § 875 relatives are concerned, is, in controversies over custody, to apply for the removal of the guardian already appointed, and for the appointment of another competent to take actual control of the ward's person.^* In a contest over the custody of a minor between guardians appointed by different courts the best interests of the ward should be considered.^* § 874. Testamentary Guardians. Testamentary guardians cannot be controlled in their rights by expressions, in other parts of the will appointing them, which amount to a mere recommendation. A case of this sort came before Lord Chancellor Cottenham in 1847. The testator had appointed testamentary guardians over his children in due form, but had further expressed the wish that in case of his wife's death during their minority they should be placed under the care of certain female relatives. The wife having died, the female rela tives desired to assume full control. The Lord Chancellor refused to accede to this extent j but, upon his suggestion, an arrangement was effected, satisfactory to all parties, so as to give the immediate custody to the relatives, while preserving to the testamentary guar- dian that general control and superintendence which it was his duty to exercise under the will.'' § 875. Parent's Rights to Custody. The English cases are numerous where the mother's claim has' been postponed to that of the testamentary or chancery guardian.'' And where the mother clandestinely removes her child, the court has ordered him to be delivered up to the guardian.'^ So where she procures his marriage in violation of the statute.'^ But the 33. Tinder a State code -which pro- appointed its giiardian; afterwards Tides that a guardian shall not be en- another one adopted it, the parent be- titled to the custody of the ward as fore dying giving it orally to the lat- against the parent if the latter be " a ter ; but the guardian 's right to the suitable person," the court on ap- child's custody was treated as su- pointing a guardian should leave open perior. Burger v. Frakes, 67 la. 460. the question whether the parent is 34. Kelsey c. Green, 69 Conn. 2C1, suitable. McDowell v. Bonner, 62 37 A. 679, 38 L. E. A. 471. Miss. 278. A guardian is not, as of 35. Knott v. Cottee, 2 Ph. 192. right, entitled to the custody of his 36. See Macphers. Inf. 119-121. ward under fourteen years of age, but 37. Wright v. Naylor, 5 Madd. 77. the interest of the ward will be con- 38. Eyre v. Countess of Shaftesbury, sidered. Heather, Ee, 50 Mich. 261. 2 P. Wms. 103; Gilb. Eq. 172. One of the child's grandfathers was § 875 GUAEDIAN AND WAED. 988 court interferes "with reluctance as against the mother, where no misconduct on her part appears, especially if the infant is of tender years or delicate constitution, and requires maternal care and nourishment. And Lord Eldon observed, in a case where the mother's rights came in conflict with those of the testamentary guardian, that though the effect of the appointment of a guardian is to commit the custody with the guardianship, the court looks with great anxiety to the execution of the duty telonging to the guardian, and the attention expected to be paid to the reasonable wishes of the natural parent.*' The right of chancery courts to regulate the personal custody of infants subject to probate guardianship has also been asserted in this country. This principle determined the decision of the court in the New York case of People v. Wilcox.*° Here it ap- peared that the parents had separated, the father being a man of intemperate habits. The child, by the father's permission, was subsequently brought up at the house of his paternal grandparents. Upon the father's death, the grandparents secured letters of guar- dianship, without notice to the mother, who was resident else- where. She afterwards came forward and claimed control of her child, then only nine years old. It appeared that the child was happy and well provided for at the home of his grandparents. But it also appeared that the mother was a person of good char- acter, and that no sufficient reason existed for depriving her of her natural offspring. The child was therefore taken from the legal guardian and his custody awarded to the mother; the interest of the child being duly taken into consideration. But whatever might have been the language of the court in this case, it is apparent that the circumstances were of a peculiar char- acter. This decision turned not merely upon chancery powers. It recognized the deeper principle of natural law, that the relation of parent and child shall not be roughly severed. And thus we find probate guardianship in this country frequently limited by positive enactment, so as to reserve to the parents, or in other words to the natural guardians, the natural control of their own. children and the right to educate, when alive and competent to transact business.** 39. Earl of Hchester'a Case, 7 Ves. 41. See Smith's Prob. Prac. 83 87; 380. Bamsay v. Ramsay, 20 Wis. 507 ; 40. The People v. Wilcox, 22 Barb. ante, § 817. 178. In the following cases the right of 989 THE ward's pbkson. § 877 Where a guardian is appointed on account of the temporary disability of the mother the child may be remitted again to her care when she recovers.*^ As our former discussion of the subject of parental custody may have led the reader to infer, the American rule is not uniform in this respect; and as to testamentary and probate guardians, the widowed mother is in some States preferred to the guardian, while in others the guardian is preferred to the mother; the legislature frequently supplying the definite rule of guidance/^ § 876. Parent's Right of Access. Chancery will grant access in certain cases while awarding the custody of the infant to other persons. Not only have orders of access been made in the mother's favor, but, after her death, access has been allowed to her representatives.** And where Lord Hard- wicke appointed a grandmother guardian in preference to the father's executor, he ordered that the latter should have free ac- cess to the infants.*^ So in a Georgia case the court, while con- firming the guardian's right of custody, allowed access to a near relative on her request.*' Where, too, a decree of divorce gives the right of access to a certain parent, not even a testamentary guardian can refuse obedience.*^ § 877. Habeas Corpus to Determine Custody. Proceedings on a writ of habeas corpus may determine the question of legal custody in cases of this kind. But a child in the personal keeping of his guardian is in legal custody; nor can a guardian to the custody of a child 43. Lord v. Hough, 37 Cal. 657; -was held superior to that of the mo- Eamsay v. Eamsay, 20 Wis. 507 ; con- ther: Maeready v. Wilcox, 33 Conn. tra, Macready, v. Wilcox, 33 Conn. 321; Hovey v. Morris (Ind.), 7 321. And see Peacock Vw Peacock, 61 Blaekf. 559; Ex parte Chambers, 221 Me. 211. Mass. 178, 108 N. E. 1070 (illegiti- 44. Ord v. Blackett, 9 Mod. 116; mate child). While in the following Macphers. Inf. 120. cases the guardian's rights to the Where the parents are jit persons custody of the child were held in- the court will allow them to have ac- ferior to those of the parents: Me- cess to children. In re Boss' Guar- Kinnon v. First Nat. Bank (Fla.) , dianship, 92 P. 671 ; In re De SauUes, 82 So. 748; Eallihan v. Motschmann, 167 N. T. S. 445, 101 Misc. 447. 179 Ky. 180, 200 S. W. 358 (where 45. Hunter v. Macrae, 17 Oct. 1738 ; parent fit) ; Mathews v. Wade, 2 W. cited in Macphers. Inf. 121. Va. 464. See Ex parte Brown, 98 46. Ex parte Ralston, 1 B. M. Kan. 663, 159 P. 405. Charlt. 119. 42. In re De Saulles, 167 N. Y. S. 47. HUl v. HiU, 49 Md. 450. 445, 101 Misc. 447. § 878 GUAKDIAN AND WARD. 990 unlawful imprisonment or restraint be imputed from the guar- dian's refusal to surrender such child to the parent.** On the other hand, the court cannot entertain habeas corpus to restore to the guardian a child forcibly removed by the parent, unless the child is actually restrained of liberty/* Besides the writ of habeas corpus, there is a remedy by petition to the court of chancery/" In proceedings at the present day, English and American, whether by habeas corpus or in chancery, the inclination grows to make the welfare of the child paramount and to treat the award of custody as an equitable matter; even though the wishes of a parent or a testamentary guardian should thereby be disregarded/^ § 878. Guardian's Right to Change Ward's Domicile or Resi- dence. The question whether the guardian may change the ward's domi- cile from one country or State to another has given rise to much discussion. In England, it was decided that the surviving parent, being also the guardian, was competent to do so.°^ The case came before Sir William Grant, and was argued by counsel with great learning and ability. It was here shown that the best Continental jurists supported these views ; among them, Voet, Rodenburgh, Bynkershoek, and Pothier. This is the leading case on the sub- ject, and its authority has been fully recognized in the United States.'* The great objection to a change of the infant's domicile is that the right of succession to personal property may be thereby affected; and it seems probable that, if the change is made with fraudulent intent, to the ward's injury or the custodian's private advantage, it will not be sustained. Moreover, as the case above referred to was that of a parent, it has been doubted whether a guardian, as such, not being a parent, has the right to change hia 48. People v. Wileox, 22 Barb. 178; Watts, 122 N. Y. 238; Lally v. Fitz Townsend v. Kendall, 4 Minn. 412; Henry, 85 la. 49. In re Andrews, L. B. 8 Q. B. 153. Even a mother, free from miscon- The guardian 's assent to a temporary duct, who is appointed legal guardiaa custody does not conclude him. Com- of a daughter sixteen years old can- monwealth v. Reed, 55 Pa. St. 425. not assume custody of the child where 49. Foster V. Alston, 6 How. (Miss.) the latter 's welfare opposes. Eeg. v. 406. Gungall (1893) 2 Q. B. 232. 50. Story, Eq. Juris., § 1340, and 52. Potinger v. Wightman, 3 Mer. cases cited. Concerning statute pro- 67. And see preceding chapter, cedure for custody, see Peacock v. 53. Holyoke v. Haskins, 5 Pick. 20; Peacock, 61 Me. 211. 2 Kent Com. 227, n. 51. (1893), 2 Q. B. 232; People v. 991 THE ward's person. § 878 ward's domicile. In Pennsylvania such a guardian's authority has been denied, independently of a court's permission, and the power confined to the parents." But Chancellor Kent expresses dissatisfaction with such a doctrine, and considers the objection against the guardian's power too refined and speculative." Other American authorities sustain his view, though in general assuming the principle, rather than asserting it, and not without some bias as to the particular consequences to result. "" The particular ques- tion does not seem to have been raised in England. With the facilities of modem travel and the liberal intercourse of nations, the tendency increases in favor of the guardian's power to change in good faith his ward's residence, if not the domicile, and even though not endowed with parental authority. This principle is the more readily admitted, so far as different counties in the same State are concerned."' And it would be unwise for American courts to apply, as between States united under one general govern- ment, the same rigidly exclusive doctrines which foreign countries differing in religion, customs, and civil institutions, may see fit to adopt in their intercourse with one another. For such a change might be for the direct benefit of the ward's health, education, or personal surroundings, and the same guardian might procure a new appointment in the State of new residence. °' 54. School Directors t. James, 2 change the ward's domicile, especially Watts & Serg. 568; and see Story, in the case of a very young child, is Confl. Laws, §§ 494, 504; Estate Anna not to be presumed. Marheineke v. M. Fulton, 14 Phila. 298. Grothaus, 72 Mo. 204. Here the ques- 55. 2 Kent, Com. 227, n. (c), where tion arose as to whether, the guar- this subject is fully discussed. dian having died, a successor in the 56. See Lamar v. Micou, 114 XT. S. trust was to be appointed in a dif- 218, where with the guardian's assent ferent county; which would have been the infants acquired a grandmother's disadvantageous to the ward, domicile. 58. In Wilkins's Guardian, 146 Pa. Where clearly disadvantageous to St. 585 (1891), School Directors v. the ward and the ward's kindred and James, supra, is denied or distin- connections this right is not favored. guished; and a guardian was permit- The guardian's right to change the ted to change his ward's residence for domicile is denied where such change hona fide and salutary reasons, with- afEeets the ward 's testamentary capac- out consent of the domiciliary court, ity. Daniel v. Hill, 52 Ala. 430. Or by bringing the ward into this State where he sent the ward away to pre- and taking letters in the new jnrisdio- vent a marriage against hia wishes; tion of residence, such marriage not being an objection- A mere custodian of the child un- able one. Wynn v. Bryce, 59 Ga. 529. der the guardian's sanction has of 57. Ex parte Bartlett, 4 Bradf. 221. course no right to change the ward's But the guardian's intention to domicile. Mills v. Hopkinsville, Am, § 879 GITABDIAN AND WABD. 992 The English chancery court reluctantly permits its wards to be carried out of the national jurisdiction. The Ohancellor in De Manneville v. De Manneville restrained a father, himself an alien, from removing his child to a foreign country.'* In other cases, permission has been granted under stipulations for the benefit of the child ; the guardian being required to transmit regular returns to the court with vouchers, and to bring back the ward within a specified time.'" Similar orders in chancery have been made in this country, though rarely.'^ § 879. Right to Personal Services of Ward. The guardian has not the same right as a father to the personal services of the infant, where he does not undertake to stand in loco ■parentis,^'' which he sometimes does. For as his duty to educate and maintain is limited by law to the ward's resources, and is not, like the responsibility of a parent, absolute, so his rights are those of a representative, who should seek to add to the trust fund in his hands, and not to his own private emolument.** Dig. 1889; AUgood v. Williams, 32 Ala. 551. A gua/rdian may change the domi- cil of the ward for his benefit. Smidt V. Benenga, 140 la. 399, 118 N. W. 439. In re Kiernan, 77 N. Y. S. 924, 38 Misc. 394. 59. 10 Ves. 52. See Dawson v. Jay, 27 E. L. & Eq. 451. GO. Jeffreys v. Vanteswartsworth, Bam. 141; Jackson v. Hankey, Jac. 265, n.; Stephens v. James, 1 M. &K. 627 ; Lethem v. Hall, 7 Sim. 141 ; Tal- bot V. Earl of Shrewsbury, 18 L. J. 125. See Macphers. Inf. 129-132. 61. Ex parte Martin, 2 HiU, Eq. 71. Lord ChaneeHor Cottenham has ob- served, on this subject, that while cir- cumstances may ocur, such as the iU-health of the ward, so as to render his removal necessary, the general rule ought to be against permitting an infant ward to be taken out of the jurisdiction. He further declared his regret that this rule had not been more strictly adhered to, and his con- viction that a permanent residence abroad was injurious to the future prospects of English children, inas- much as they were thus deprived of their religious opportunities, sepa- rated from their natural connections, estranged from the members of their own families, withdrawn from those courses of education which their eon- temporaries were pursuing, and accus- tomed to habits and manners which were not those of their own country, and were constantly becoming from day to day less and less adapted to the position which they should afterwards occupy in their native land. Camp- bell v. Mackay, 2 M. & C. 31. 62. Phillips V. Davis, 2 Sneed, 520 ; Calhoun v. Calhoun, 41 Ala. 369; Crosby v. Crosby, 1 S. C. (N. S.) 337; Armstrong v. Walkup, 12 Gratt. 608. Among the miscellaneous items which have been allowed a guardian in his accounts may be mentioned that of hoTM fide expenses incurred in removing the ward to another State. Cummins v. Cummins, 29 111. 452; Champlin v. Slocum (B. I.), 103 A. 706. 63. See Bass v. Cook, 4 Port. 390; Bouv. Diet. ' ' Guardian ; ' ' Bannister V. Bannister, 44 Vt. 624; Haskell v. 993 THE wakd's peeson. § 880 Where a father who is guardian of his minor children cultivates a farm belonging to them on his own account he will be entitled to its proceeds though he uses their labor in cultivating it if he has not lost the right to their services by failing to maintain and educate them.** The value of the ward's services to the guardian is not property for which the guardian is bound to account.'' The guardian should keep the ward employed when of suitable age and capacity so that he may not exhaust the estate by his maintenance,'" and the guardian, acting in loco parentis, may bind out his ward as an apprentice whenever the father could do so. This, however, is a matter almost exclusively of statute regulation. And while the father is tisually held liable in damages for his son's breach of contract, it woxild seem that the guardian is not personally responsible for his ward unless the statute makes him so."' As the guardian is bound to promote the moral welfare of the person intrusted to his care, he may warn off from the ward's premises any persons improper for him to associate with, and, if necessary, expel them forcibly. This right is to be reasonably construed; and in the use of means and the amount of force necessary to effect his object, he is allowed a liberal discretion, such as a parent might exercise under like circumstances.'' And in many other respects the rights of a guardian resemble closely those of a parent pro tanto.'^ § 880. Guardian's Duties as to Ward's Person ; In General. The guardian's duties as to the ward's person are those of pro- tection, education, and maintenance. In exercising them, he is bound to regard the ward's best interests. Guardians, as we have Jewell, 59 Vt. 91. A guardian com- 66. Marquess v. La Baw, 82 Ind. mits no breach of duty towards his 550. ward who is nearly of age, in permit- 67. Velde v. Levering, 2 Eawle, 269. ting the ward to devote all his wages 68. Wood v. Gale, 10 N. H. 247. towards keeping together and sup- 69. Insane persons and spendthrifts porting his orphan brothers and sis- cannot manifestly be subjected to the ters. Shurtleff v. Eile, 140 Mass. 213. same personal restraint and custody as Otherwise semble if the guardian al- infants. But the fact that such ward lowed such wages to be devoted to occupies his own house affords him no vicious and improper uses. Fb. special immunity against his guar- 64. Parlin & Orendorff Co. v. Web- dian. Accordingly, it has been held ster, 17 Tex. Civ. App. 631, 43 S. W. that the guardian of a spendthrift 569 may enter the dwelling-house of the 65. Champlin v. Slocum (E. I.), 103 latter, in the performance of offtcial A. 706. duties, without his permission and 63 § 881 GUAEDIAN AND WABD. 994 seen, are seldom appointed where there is not some property. But even though the ward be penniless, we are not to suppose that one vested with the full right of custody can neglect with impunity those offices of tenderness which common charity as well as par- ental affection suggest. For to the orphan he stands in some sense in the place of a parent, and supplies that watchfulness, care, and discipline which are essential to the young in the formation of their habits, and of which being deprived altogether, tbey had better die than live. § 881. Liability for Support of Ward. It is, however, to be always borne in mind that while the father is bonnd to educate and maintain his minor children absolutely and from his own means, with a right to their services as an offset, no such pecuniary responsibility is imposed upon a guardian who is not the parent or does not undertake to stand in place of one. The latter, by virtue merely of such trust, need only use for that purpose the ward's fortune. Hence, in supplying the wants of his wards, he is to consider, not the style of life to which they have been accustomed, so much as the income of their estate at his disposal. Whatever their social rank may have been, he may, provided they are left destitute, place them at work, or, if they are too young or feeble, surrender them to some charitable institution ; they should, if old enough and able, be kept at work earning their support. An agreement may thus be made between the guardian and some relative of the child or a stranger, for the fair support of the ward in exchange for his services. He should, however, act with delicacy and prudence; he may properly consider in this cannection the habits and tastes of the children and the wishes of their relatives; and he can relieve himself of responsibility by asking judicial guidance. The courts show a liberal disposition to protect the guardian from personal liability on account of his ward. And if a guardian has permitted the ward, at his own cost, to re- main in the care and custody of another, without express contract as to the period of time, he may, whenever he pleases, terminate his own personal liability by giving notice. Nor does it affect the case that his ward is then too sick to be removed.'" against his will. State v. Hyde, 29 623; Bredin v. Dwen, 3 Watts, 95; Conn. 564. Huasey v. Eoundtree, Busb. 110; 70. Spring v. Woodworth, 4 Allen, Gwaltney v. Cannon, 31 Ind. 227 ; Mc- 326; Overton v. Beavers, 19 Ark. Daniel v. Mann, 25 Tex. 101; Ford v. 995 TH£ WABd's PEBSON. § 881 On the other hand, the guardian may make himself liable for his ward whenever he chooses to do so, and makes that choice mani- fest, like anyone else in loco parentis. If a guardian contracts with another to support his ward, he may become personally bound by his failure to limit the right for indemnity to the estate in his hands.'* Where the guardian supports the wards without expectation of reimbursement, he cannot be credited with the expense of sup- port.'^ The discretion of the guardian in maintaining the ward Miller, 18 La. Ann. 571; Brown v. Taryan, 74 Ind. 305. As soon as one not a parent or m loeo parentis is ap- pointed guardian lie may charge for the support of the ward. Pratt v. Baker, 56 Vt. 70; Moyer v. Fletcher, 56 Mich. 508. A guardian who is also stepfather, and maintains the wards in his family and receives their ser- Tices, may be allowed a reasonable sum for their support. Latham v. Myers, 57 la. 519; Marquess v. Le Baw, 82 Ind. 550; In the Matter of Estate of Mabel Ward, 73 Mich. '220. The guardian cannot charge his ward's estate for money expended in board and education, unless there was no parent able or willing to provide, and the estate justified the expendi- ture. State V. Eoche, 91 Ind. 406. Nor can he squander his ward 's money in paying others for the ward's main- tenance. Conant v. Souther, 80 Wis. 656. Some State codes require that the guardian of a minor who has a father or mother shall not expend anything for the ward's support without a pre- cedent order of court. Darter v. Speirs, 61 Miss. 148. And see Stig- ler V. Stigler, 77 Va. 163. If the guardian pays in such cases at all, it does not follow that he must pay into the parent's own hands. Quian V. Hill, 6 Dem. Sur. 39. As to orders authorizeing expenditure for the sup- port of a lunatic, see Hambleton's Appeal, 102 Pa. St. 50. 71. See Lewis v. Edwards, 44 Md. 333, as to offset for the services of the ward to one who sues the guar- dian for his board. On the principle of the text, a case in Vermont was decided a few years ago. The guar- dian had contracted for the board of his ward, at a dollar and a half a week, fixing no limitation as to time. The person furnishing the board af- terwards notified him that he should raise the price to two dollars a week, and that if this was not satisfactory the ward must be taken away. The guardian did not take the ward away, nor on the other hand did he expressly accede to the new contract. But the court inferred from the circumstances that he had made himself personally liable for the increased rate. It was observed in this case that the guar- dian has the possession and control of the ward's estate, for his support and maintenance, and has the power of indemnifying himself for any con- tracts he may make; that it is his business to know the amount and situ- ation of the estate, and that he is not obliged to incur any liability beyond it. If he do so, it is his own fault, for which others, who cannot be so well possessed of this knowledge, ought not to suffer. But the court also held that under the above contract the guardian was not personally liable for extra charges against the ward, such as re- pairs on clothing, washing, care and medical attendance while sick, and burial expenses. Hutchinson v. Hutch- inson, 19 Vt. 437. 72. Forbes v. Ware, 172 Mass. 306, 52 N. E. 447; In re Dahlmier, 78 § 883 QUAEDIAIT AND WAKD. 996 will not usually be reviewed,'" and he may be allowed for such board and maintenance of his ward as would have been allowed if he had made prior application.''* Advances may be made to the ward in a proper caseJ^ The guardian cannot relieve himself from responsibility by delegating the duty of support to the ward himself or to a third person,^* § 882. Support by Guardian Before and After Guardianship. The guardian may be allowed for payments made out of the estate after the ward comes of age for the ward's support," and not usually for maintenance of infants prior to his appointment.^' § 883. Board Furnished by Guardian. The guardian may be allowed for board furnished the ward/* but where the guardian furnishes board for the ward without in- tending to charge for it he cannot later make a charge for it.*" So where the guardian took a bequest made to him by the father of the ward conditioned on his caring for the ward until he became of age, he cannot be allowed for board furnished.*^ Minn. 320, 80 N. W. 1130 (where second husband uaed farm of children of wife by first husband as his own and supported all out of it) ;■ Abrams -7. United States Fidelity & Guaranty Co., 127 Wis. 579, 106 N. W. 1091, 5 li. E. A. 575, 115 Am. St. E. 1091. See Trouth v. Brown, 186 111. App. B25 (no charge made for board where ward did housework and no charge intended) . 73. In re Boyes' Estate, 151 Cal. 143, 910 P. 454; Gott v. Gulp, 45 Mich. 265, 7 N. W. 767. See Wheeler v. Duke, 29 Tex. Civ. App. 20, 67 S. W. 909 (holding order to be void which delegates to the guardian the duty of determining the sum necessary for education). 74. Jn re Boyes' Estate, 151 Cal. 143, 90 P. 454 (apportioned numeri- cally among wards) ; Wilson v. Fi- delity Trust Co., SOKy.LawEep. 263, 97 8. W. 753 (not out of principal) ; In re Ward, 9« N. T. S. 923, 49 Misc. 181. 75. In re White, 91 N. T. S. 513, 101 App. Div. 172. 76. Bliss V. Spencer (Va.), 98 S. E. 593. 77. In re Boyes' Estate, 151 Cal. 143, 90 P. 454. 78. Farris v. Bingham, 164 Ky. 444, 175 S. W. 649. Contra, State ex rel. Strickland v. Strickland's Adm'r, 80 Mo. App. 401 (even before his ap- pointment). See Logan v. Gay, 99 Tex. 603, 87 S. W. 852, 90 S. W. 861 (as to claims for necessaries fur- nished before the guardianship com- menced). 79. In re Boyes' Estate, 151 Cal. 143, 90 P. 454; Miller v. Lindemann, 206 HI. App. 130; Ehodes v. Fra- zier's Estate (Mo. App.), 204 S. W. 547; Cutting v. Scherzinger, 40 Ore. 353, 68 P. 393, 69 P. 439; Mumford T. Eood, 153 N. W. 921; De Cordova V. Eogers, 97 Tex. 60, 75 S. W. 16; Logan V. Gay, 99 Tex. 603, 90 S. W. 861 (reversing 87 8. W. 852). 80. State ex rel. Garesche v. Slevin (Mo. 1887), 6 S. W. 71. See Diffie V. Anderson (Ark.), 208 S. W. 428. 81. In re Klein, 142 N. Y. S. 557, 80 Misc. 377. 99t THE ward's pebsof. § 885 § 884. Services of Ward to Guardian to be Credited. The guardian cannot be allowed anything for support where he has had services from the ward equal in value to the expense of maintenance/^ and whenever he takes the ward into his own household as a boarder, the value of the child's services received must be computed as against any charge of the guardian for care and maintenance.'* § 885. Allowance to Parent for Ward's Support; Chancery Rules. As to the guardian's own charges for the maintenance of wards, there can be no question that he is neither obliged as such to main- tain his wards at his own expense, nor justified in appropriating their earnings to himself. But as the services of children and the cost of their board are always mutual offsets, the courts are reluc- tant to allow charges of this sort, for or against a guardian who brings up his ward in his own family ; more especially where the claim seems to have been made up from afterthought, and without; previous stipulation. Intention, on his part, to maintain the ward gratuitously may be inferred from circumstances. In this eense we understand certain dicta of the courts to the effect that a guardian cannot charge for board where he has offered to bring up the ward at his home free of expense ; for it is to be supposed that there is mutuality in all contracts, and that reasonable notice might terminate any liability which had no fixed limit.** But there are circumstances under which a guardian's promise to the ward not to charge him for board would be void for want of con- sideration.'" 82. Campbell v. Clark, 63 Ark. 450, Peebles, 42 Ala. 338, reeognizes a 39 8. W. 262; Marquess v. La Baw, guardian's claim for keeping his 82 Ind. 550; Sims v. BiUington, 50 ward 's horse, in a proper case. Equity La. Ann. 968, 24 So. 637. disinclines to charge for a ward's 83. Otis V. Hall, 117 N. Y. 131 Marquess v. Le Baw, 82 Ind. 550 Starling v. Balkum, 47 Ala. 314 maintenance for the benefit of the guardian's general creditors. Grif- fith V. Bird, 22 Gratt. 73. Or to allow Dawson v. Mann, 6 Ky. Law Eep. the guardian for supporting the ward 296; Clement v. Hughes, 13 Ky. Law before his appointment, except under Eep. 352; 17 S. W. 285; Hedges v. strong circumstances. Olsen v. Hedges, 24 Ky. Law Eep. 2220, 73 S. Thompson, 77 Wis. 666. Trumped-up W. 1112. claims of maintenance are of course 84. Manning v. Baker, 8 Md. 44; disallowed. In re Eschrich, 85 Cal. Armstrong v. Walkup, 9 Gratt. 372; 98; Taylor and Others v. Hill, 86 Hayden v. Stone, 1 Duv. 396; Hen- Wis. 99. dry V. Hurst, 23 Ga. 312 ; Cunning- 85. Keith v. Miles, 39 Miss. 442. ham V. Pool, 9 Ala. 615. Owen y. § 885 QUAKDIAN AND WAED. 998 As the father is bound to support his ovm children, he cannot, when guardian, claim the right to use the income of their property for that purpose; much less to disturb the principal.'* But, as we have seen, a father is allowed, when his means are email, to claim assistance from their fortunes, to bring them up in becoming style. *^ And where the father, when acting as guardian for his own children, might have reimbursed himself, any other person, as guardian, may help him ; rather, however, for the future than for the past.*' Where the father is a fit person to have custody of the child the court may refuse to order him to pay for its support to a guardian who refuses to allow the father to have custody,'' but where the 86. Leaeh v. Williams, 30 Ind. App. 413, 66 N. E. 172; Corblay v. State, 81 Ind. 62; In re Tolifaro, 113 la. 747, 84 N. W. ffSB; In re Carter, 120 la. 215, 94 N. W. 488; Clement v. Hughes, 13 Ky. Law, 352, 17 S. W. 285; Huffman v. Hatcher, 178 Ky. 8, 198 S. W. 236; Windon v. Stewart, 43 W. Va. 711, 28 S. E.*776; Town of Fairhaven v. Howland, 216 Mass. 149, 103 N. E. 302 (grandfather by sta- tute made liable for support of indi- gent grandchildren). See In re Put- ney, 114 N. T. S. 556, 61 Misc. 1. 87. Corbaley v. State, 81 Ind. 62 (father unable to work) ; Hedges v. Hedges (Ky. 1902), 67 S. W. 835; Harper v. Payne, 24 Ky. Law Eep. 2301, 73 S. W. 1123 ; Watson v. Watson (Ky.), 209 S. W. 524; McGreary v. McGreary, 181 Mass. 539, 63 N. E. 917; In re Ward's Estate, 73 Mich. 220, 41 N. W. 431; Fitzsimmons v. Fitzsimmons, 81 Mo. App. 604. 88. Macphers. Inf. 219'; Clark v. Montgomery, 23 Barb. 464;' Beasley V. Watson, 41 Ala. 234; Welch v. Burris, 29 la. 186; Myers v. Wade, 6 Hand. 444; Walker v. Crowder, 2 Ired. Eq. 478. See suprs,, §§ 793,794. As to parents, and those like a step- father who choose to stand in place of a parent, the rules of maintenance which have already been stated ap- ply to such allowances, in a guar- dian's accounts. If the guardian, or the person with whose claim he charges himself, was of adequate means, and bound legally to maintain the child as parent, or fully under- took to supply the place of parent, education and support cannot gener- ally be allowed from the ward's es- tate. Bradford v. Bodfish, 39 la. 681; Douglas's Appeal, 82 Pa. St. 169; Snover v. Prall, 38 N. J. Eq. 207; Horton's Appeal, 94 Pa. St. 62. The expense of past maintenance ia the less readily allowable. Folger v. Heidel, 60 Mo. 284. Yet future main- tenance is chargeable where the ward's means were disproportionate to the parent's and needful to pro- vide in suitable style; and even past maintenance may be thus allowed. Supra, §§ 793, 794. And if one in place of parent has undertaken the function upon some such proviso, the ward's income may be used. The cir- cumstances may always be considered and the proportionate means as be- tween the ward and the person ful- filling the parental functions. Voea- sing V. Voessing, 4 Eedf. 360. The guardian of an insane ward may prop- erly charge for the expense of board- ing the ward at an insane asylum; the ward's estate being sufficient for such expenditure. Corcoran v. Allen, 11 E. I. 567. 89. In re Eoss' Guardianship, 92 P. 671. 999 THE wakd's PEEaoN. § 885 guardian is appointed because the father is unfit there is an implied promise on his part to pay for support. A probate guar- dian who is step-father to his wards will readily be presumed to stand to them in the place of a father, so far as liability for their support and a right to their services are concerned ; and this rule may apply where he occupies their house for many years,'" but in a proper case a stepfather not being bound to support the child may have an allowance for such support." And the widow will not usually be allowed for the board of her child '^ unless she is in straitened circumstances.'* And a vsridow who is primarily liable for the support of her children vnll usually be allowed for their support only the income from their estate.'* A mother who is the guardian of her infant child cannot be allowed for motherly services rendered to it, but only for cash expenditures." The allowance of money for the maintenance and education of infants constitutes an important branch of the English as con- trasted with our American chancery jurisprudence. Grenerally speaking, whenever application is made for the appointment of a chancery guardian, maintenance is also applied for ; and the guar- dian receives no more than the annual sum fixed by the court. The ward's whole fortune is held at the disposal of the court, whether the infant was made a ward by suit or otherwise. If a suit be pending, the guardian receives his allowance through the receiver or some other officer of the court. If there be no suit pending, the executor or trustee pays the annual sum fixed by the court; and if the whole proceeds of real estate be ordered for maintenance, the tenants are safe in attorning to the guardian. But parties making payment are discharged only to the extent of the allowance decreed." 90. Mulhem v. MoDavitt, 16 Gray, 93. 'Williams v. Clarke, 81 N. T. S. 404; supra, § 686. 381, 82 App. Div. 199; "Wing v. Hib- 91. Miller v. Lindemann, 206 111. bert, 20 Ohio Cir. Ct. E. 404, 11 O. App. 130 (only after notice to guar- C. D. 190. dian that he will claim allowance) ; 94. Ellis v. Soper, 111 la. 631, 82 Cutting V. Scherzinger, 40 Ore. 353, N. W. 1041. 68 P. 39'3, 69 P. 439. See In re 95. Keeney v. Henning, 64 N. J. Klunch, 68 N. T. S. 629, 33 Misc. Eq. 65, 53 A. 460. See In re Boyes' 267. Estate, 151 Cal. 143, 90 P. 454 (under 92. In re Grant, 166 N. T. 640, 60 some circumstances mother may be N. E. 1111; Donnell v. Dansby paid for services). (OHa.), 159 P. 317; J. H. Cox & Co. 9fi. Maophers. Inf. 106; Bx parte T. Fisher (Okla.), 161 P. 171. Starkie, 3 Sim. 339. Chancery will § 886 GUAEDIAN AND WABD. 1000 Testamentary guardians are, however, frequently authorized by the testator to apply at discretion from the income of the infant's fund, or from the capital, for his support; and such discretion will not be controlled so long as the guardian acts in good faith. But trustees and guardians frequently procure an order of main- tenance, notwithstanding, in order to relieve themselves of all responsibility." Doubts were formerly entertained of the power of chancery to interfere in these and other cases where the infant had not been made a ward of chancery by suit. No such doubts now exist, however; and the court will, on petition, and without formal proceedings by bill, settle a due maintenance.** A decree of court authorizing the guardian to apply the entire income of the estate to the support of the child will be applied to the successor of the guardian even though the father." § 886. Secular and Religious Education of Ward by Guardian. Courts of chancery treat the guardian as the proper judge of the place where his ward shall be educated, and will, if necessary, issue orders to compel obedience. But if guardians disagree as to the mode of their ward's education, the court will exercise its own discretion, and will not consider itself bound by the wishes of the majority.^ It is the duty of the guardian to give the ward suitable education in the business which he will be called upon to follow.'' Parol evidence of the deceased father's wishes is admissible, and the control the discretion of trustees as eases cited. And see Kettletaa v. to allowance. In re Hodges, L. E. 7 Gardner, 1 Paige, 488. Ch. D. 754. Trustees may be authorized by the Macphers. Inf. 213; Livesey v. terms of the trust to expend a certain Harding, Taml. 460; French v. sum for maintenance and support of Davidson, 3 Madd. 396; Collins v. children. It is generally understood Vining, 1 C. P. Cooper, 472. In Mis- that the expenses of education are sissippi the sum for maintenance and thus included. Breed's WiU, 1 Ch. education must be fixed in chancery. D. 226. Trustees under a will thus Dalton V. Jones, 51 Miss. 585. But as authorized, and in effect teetament- to personal estate, the American rule ary guardians, are not compelled to is, usually, that if the court would pay over such moneys to a statute or have authorized the expenditure upon probate guardian. Capps v. Hick- application before it was made, the man, 97 111. 429. expenditure will be sanctioned upon 99. In re Plumb, 53 N. T. S. 558, settlement of the guardian's accounts. 24 Misc. 249, 2 Gibbous, 447. Einker v. Streit, 33 Gratt. 663. 1. Story, Eq. Juris., § 1340; Mac- 97. Goods of Sartoris, 1 Cnrteis, phers. Inf. 121; Tremain's Case, Stra. 9'10. 168 ; Hall v. Hall, 3 Atk. 721. 98. Story, Eq. Juris., § 1354, and 2. Perrin v. Lepper, 73 Mich. 454, 1001 THB wakd's peeson. § 887 ootirt will pay attention to such wishes, although informally ex- pressed, in judging of the mode of education of children as well .as in the appointing of a guardian,' and the parent's wishes as to the religious education of the ward should be followed.* The subject of a child's religious education received much con- sideration in a late English case, where, notwithstanding the father's directions in his will appointing a testamentary guardian who was, like himself, a Roman Catholic, a daughter nine years old was allowed to remain with her mother, a Protestant, and to be brought up in the same religious faith; and this against the guardian's wishes, tardily expressed. An antenuptial agreement, made between the husband and wife, stipulating that boys of the marriage should be educated in the religion of the father, and girls in that of the mother, was indeed declared of no binding force as a contract ; and yet it was added that this agreement would have weight with the court in considering, after the father's death, whether he had abandoned his right to educate this daughter in hia own religion. The welfare of the child was, under the circum- stances, deemed a very important consideration.* In a still later case chancery considered that it was most for the benefit of the child to be educated as a Roman Catholic' But on the whole, in cases of doubt the English courts incline to favor Protestant education as for the child's welfare.^ § 887. Use of Income or Principal. The doctrine has been repeatedly declared that no guardian can expend more than the income of his ward's estate without proper judicial sanction. This is the settled rule in chancery, and it is ■universally applicable in the United States.* And a similar prin- 40 N. W. 859; In re Alexander, 79 N. ren." And see In re Agar-Ellis, 27 J. Eq. 226, 81 A. 732. W. B. 117 ; supra. Part HI, ch. X, 3. Anon., 2 Ves. Sen. 56; Camp- where the general subject of a child's ■bell V. Mackay, 2 M. & C. 34 ; oontra, education and maintenance is dis- Storke V. Storke, 3 P. 'Wms. 51. cussed. 4. In re Lamb's Estate, 139 N. T. G. Clarke, JSe, 21 Ch. D. 817. See S. 685 (though father had neglected also Montagu, Me, 28 Ch. D. 82. child). 7. Violet Nevin, Me (1891), 2 Ch. 5. Andrews v. Salt, L. E. 8 Ch. 622. 299 ; Lacon v. Lacon, 2 Ch. 496 ; Scan- See In re Newbery, L. E. 1 Ch. 263, Ian, He, 40 Ch. D. 200. where the deceased father's wishes 8. Whitledge's Heirs v. Callia, 25 prevailed, as against the mother and Ky. 403; Baker v. Lane (Ky. 1909), the duldren, so that the minor chU- 118 S. W. 963; Collins v. Slaughter, dren might not be taken to worship 1 Ky. Law Sep. 261; Griffith's Ex'r at a chapel of the "Plymouth Breth- v. Bybee, 24 Ky. Law Eep. 666, 69 S. § 887 GUARDIAN AND WABD. 1002 ciple prevails under the civil law,* But to what extent the guar- dian renders himself personally liable, by exceeding the income without previous sanction of the court, is not quite clear. The English rule is undoubtedly strict. But as to probate guardians, and in modem practice, legal formalities have been considerably relaxed; though the rule is still that the capital should not be encroached upon without judicial leave, to meet expenditures which are beyond the ward's means, however suitable to his social position. In most of the United States the guardian is, doubt- less, justified in breaking the principal fund, under strong or sud- den circumstances of necessity, for the benefit of his ward, and he may leave his conduct to the subsequent approval of the court when he presents his accounts. In cases of risk and uncertainty, however, the proper course is to obtain a previous order.^" It is sometimes provided by statute that a guardian can be allowed for expenditures out of the principal only where there has been previous authority from the court.^^ but otherwise such W. 767 ; Fidelity Trust Co. v. Butler, 28 Ky. Law Rep. 1268, 91 S. W. 676; Chubb T. Bradley, 58 Mich. 268, 25 N. W. 186 ; In re Brown, 141 N. Y. S. 193, 80 Misc. 4; Whitfield v. Burrell, 54 Tex. Civ. App. 567, 118 S. "W. 153; Binker v. Streit (Va.), 33 Gratt. 663; Campbell v. O'Neill, 69 W. Va. 459, 72 S. E. 732 ; In re Bostwick, 4 Johns. Ch. 100; Myers v. Wade, 6 Band. 444; Lawrence v. Speed, 2 J. J. Marsh. 403 ; Villard v. Chovin, 2 Strobh. Eq. 40; State v. Clark, 16 Ind. 97; Beeler V. Dunn, 3 Head, 87 ; Oakley v. Oak- ley, 3 Dem. 140; Bowling v. Feeley, 72 Ga. 557. See Louisiana rule as to the authority of a family meeting. Succession of Melina Webre, 36 La. Ann. 312. 9. Payne v. Scott, 14 La. Ann. 760. See Louisiana rule as to authority of family meeting. Succession of Webre, 36 La. Ann. 312. 10. Story, Eq. Juris., § 1355; Chap- line V. Moore, 7 Monr. 150; Davis v. Harkness, 1 Gilm. 173; Davis v. Boberts, 1 Sm. & M. Ch. 543; Boy- ston V. Boy^ton, 29 Ga. 82; Foteaux V. Le Page, 6 Clarke (la.), 123; Gil- bert V. McEaehen, 38 Miss. 469 ; Phil- lips V. Davis, 2 Sneed, 520; Cummins V. Cummins, 29 111. 452; Cohen v. Shyer, 1 Tenn. Ch. 19^. Some State codes lay down a strict rule eoneem- ing the previous sanction of the court to exceeding the ward 's income. Boyd V. Hawkins, 60 Miss. 277; Eysarte v. George, 63 Miss. 143; Boscoe v. Mo- Donald, 91 Mich. 270; Jones v. Par- ker, 67 Tex. 76. But in other States ratification by the court is equivalent to a previous authority. Killpatrick's Appeal, 113 Pa. St. 46 ; Ward, Be, 73 Mich. 220; Ehode v. Tuten, 34 S. C. 496. 11. Campbell v. Clark, 63 Ark. 450, 39 S. W. 262; Hudson v. Newton, 83 Ark. 223, 103 S. W. 170 ; McQueen v. Pisher (Ga. App.), 95 S. E. 1004; Hazelrigg v. Pursley, 69 111. App. 467; Hubbell v. Hubbell, 5 La. Ann. 524; Sims v. Billington, 50 La. Ann. 968, 24 So. 637; In re Watson, 51 La. Ann. 1641, 26 So. 409'; Eastland v. Williams' Estate, 92 Tex. 113, 46 S. W. 32, 45 S. W. 412; Blackwood v. Blackwood's Estate, 92 Tex. 478, 47 S. W. 483, 49 S. W. 1045 ; Freedman V. Vallie (Tex. Civ. App. 1903), 75 S. W. 322; Logan v. Gay, 99 Tex. 603, 1003 THE WAED's PEESON. § 88T expenditures may be allo-wed if proper without prior authority," but the court may refuse to authorize such expenditures in ad- vance.^' In some cases the principal may be used when it becomes both reasonable and necessary ** to exceed the ward's income, and the judicial sanction is granted accordingly. Thus courts of chan- cery, or even of probate, authorize the capital to be broken upon, or, if need be, the whole estate to be consumed, where the property is small and the income inadequate for support/' As where the ward's education is nearly completed, especially if he will thereby be fitted for a profession. Or where the ward is mentally or physi- cally unfit to be bound out as an apprentice.'* So, too, in case of extreme sickness, or other emergency, or for the burial of a dead ward, where an unusual and sudden outlay becomes necessary. '^ And the guardian can anticipate the income of one year in supply- ing the casual deficiency of another.'* And he may treat an in- crease of value in his ward's property as income.'® And he may use the accumulated profits of previous years where necessary. A 90 8. W. 861 ; Murph v. McCullough, 40 Tex. Civ. App. 403, 90 S. W. 69; Dallas Trust & Savings Bank v. Pitehford (Tex. Civ. App.), 208 8. W. 724; Harkrader v. Bonham, 88 Va. 247, 16 8. E. 159; Gayle v. Hayes' Adm'r, 79 Va. 542. 12. In re Boyes' Estate, 151 Cal. 143, 90 P. 454; In re Carter, 120 la. 215, 94 N. W. 488; Des Moines Sav. Bank v. Krell, 176 la. 437, 156 N. W. 858 (to provide home); Hoga's Es- tate V. Look, 134 Mich. 361, 96 N. W. 439, 10 Det. Leg. N. 473; In re Klunck, 68 N. Y. 8. 629, 33 Miae. 267; Duffy v. Williams, 133 N. C. 195, 45 8. B. 548; Cutting v. Scherzinger, 40 Ore. 353, 68 P. 393, 69 P. 439; Einker v. Streit (Va.), 33 Gratt. 663; Bliss v. Spencer (Va.), 99 S. E. 593. 13 In re Barry, 61 N. J. Bq. 135, 47 A. 1052. See, however, Watson v. Watson (Ky.), 209 8. W. 524. 14. Williams v. Williams (Ala.), 81 So. 41 (where father is unable to support them); Little v. West, 145 Ga. 563, 89 S. E. 682; Whitledge's Heirs v. Callia, 25 Ky. 403; Common- wealth V. Lee, 120 Ky. 433, 86 8. W. 990, 27 Ky. Law Eep. 806, 120 Ky. 433, 89 S. W. 731, 28 Ky. Law E«p. 596 (when ward so young or of in- firm health that he cannot work) ; Hudson V. Hudson, 160 Ky. 432, 169 8. W. 891 (holding that where the ward is sick and in pressing need payments may be ordered made to him out of principal) ; Griffith 's Ex'r V. Bybee, 24 Ky. Law Eep. 666, 69 S. W. 767 (marriage and ill- ness of ward) ; Gott v. Gulp, 45 Mich. 265, 7 N. W. 767 (where future prob- able resources justify it) ; In re Ward's Estate, 73 Mich. 220, 41 N. W. 431; Anderson v. Silcox, 82 8. C. 109, 63 8. B. 128. 15. McDowell v. Caldwell, 2 MeC. Ch. 43; Farranee v. Viley, 9 E. L. & Eq. 219 ; Eoaeborough v. Eoseborough, 3 Baxt. 314. 16. Johnston v. Coleman, 3 Jones, Eq. 290; Campbell v. Golden, 79 Ky. 544. 17. Long V. Norcom, 2 Ired. Eq. 354; In re Clark, 17 E. L. & Eq. 599; Hobbs V. Harlan, 10 Lea, 268. 18. Carmichael v. Wilson, 3 Moll. 87; Bybee v. Tharp, 4 B. Monr. 313. 19. Long V. Norcom, 2 Ired. Eq. 354; Macphers. Inf. 337, 338. § 887 GUAEDIAN AND WAED. 1004 young lady who is a ward may he allowed small sums by way of spending-money for her personal needs, apart from what may be actually necessary to eat and wear."" In short, the guardian is allowed a liberal discretion in expenditures for maintenance and education, so long as he refrains from encroaching upon the ward's capital ; ''^ and in extreme cases he may intrench upon the capital itself where this is for the ward's welfare. So it is held that he is limited in his disbursements, not to the income of the ward's estate actually in his hands, but to the income of the ward's estate wherever situated. ^^ The maintenance of property from which income is derived should be considered in fixing income of the ward's estate. ^^ The order in which the ward's property should be expended for his support and education is as follows: first, the income of the property; next, if that proves insufficient, the principal of per- sonal property; lastly, if both are inadequate, the ward's real estate, or so much of it as may be necessary. A court should protect personal capital while there is income, and realty while there is income or personal capital at all. The ward's real estate can never be sold, except under a previous order of court. 'Nor can a guardian use, in maintaining his ward, the proceeds of real estate sold for the purpose of reinvestment only, any more than he could have used the real estate itself. He should ask to sell for the purpose of maintenance.^* In fair instances a court has ordered a sale of the ward's real estate for reimbursement of the guardian's expenses of support, though petition in advance is the safer ; "^ but a guardian who has enough personalty of the ward cannot charge the ward's realty by his contracts.^* 20. Karney v. Vale, 66 Ind. 542. back the amount from such person. 21. Brown v. Mulling, 24 Miss. 204; Chubb v. Bradley, 58 Mich. 268. Speer v. Tinsley, 55 Ga. 89. 23. Wegman v. Wegman, 52 La. 22. Foreman t. Murray, 7 Leigh, Ann. 1309, 27 So. 889. 412 ; Maclin V. Smith, 2 Ired. Eq. 371. 24. Strong v. Moe, 8 Allen, 125; And see In re Coe 's Trust, 4 K. & J. Einker v. Street, 33 Gratt. 663. See 199. If the guardian pays money St. Joseph's Academy v. Augustine, from the principal of his ward's es- 55 Ala. 493. tate to a suitable person for the 25. Bellamy v. Thornton (1894), ward 's support, and the money is rea- Ala. sonably expended, he cannot recover 26. Boscoe v. McDonald (1894), Mieh. 1006 THE wabd's estatb. § 888 CHAPTER VI. EIGHTS AlTD DUTIES OF THE GUARDIAN AS TO THE WAED'S ESTATE. Bection 888. In General; Leading Principles. 889. Guardian's General Powers and Duties as to Ward's Estate. 890. Duty of Loyalty; Not to Make Money from Estate. 891. Authority Before or After Termination of Office. 892. Guardian Has No Title in Ward's Estate. 893. Character in Which Holds Funds. 894. Eight to Possession of Estate. 895. Collection of Assets. 896. What Property is Assets of the Estate. 897. Reasonable Time Allowed for Investment. 898. Character of Investments. 899. Separation of Funds. 900. Reinvestment. 901. Statutes Covering Investments. 902. When Chargeable with Interest on Investments. 903. Loans by Guardian. 904. Bank Accounts. 905. Expenditures Allowed. 906. Payment of Debts. 907. Continuance in Business. 908. Liability for Negligence or Frand. 909. Effect of Guardian's Unauthorized Acts. 910. Contracts in General. 911. Contracts for Necessaries. 912. Contracts for Services to Ward or Estate. 913. Promissory Notes. 914. Loans to Guardian. 915. Management of Ward's Real Estate in DetaiL 916. Deeds of Property. 917. Repairs and Insurance. 918. Lease. 919. Mortgage or Pledge. 920. Guardian's Occupation of Land. 921. Changes in Character of Ward's Property; Sales; Exchanges, &c. 922. Eight to Sue and be Sued as to Ward's Estate. 923. Guardian's Right of Action for Benefit of Ward. 924. Parties. 925. Compromise of Claims. 926. Arbitration. § 888. In General; Leading Principles. We have seen tliat cbancery guardians have only a limited authority over the estates of their wards, inasmuch as the court § 889 GTJAEDIAN AND WAED. 1006 makes a fixed allowance, to be consumed in maintenance and edu- cation, leaving the bulk of tbe infant's estate in the hands of executors, trustees, or its own officers. In this country guardians almost invariably assume the full management of their wards' fortimes, unless restrained by the will of the testator ; and when- ever they do so they are bound by the principles which regulate the general conduct of all trustees and bailees. Ordinary pru- dence, care, and diligence should be therefore the correct standard as applied wherever the trust is not purely gratuitous. The leading principle recognized by chancery in supervising the guardian's conduct is, as in the appointment or award of custody, that the ward's interests are of constant consideration. Hence two observations are to be made at the outset of this chap- ter. The first is, that unauthorized acts of the guardian may be sanctioned if they redound to the ward's benefit; while, on the other hand, for unauthorized acts by which the ward's estate suffers, the guardian must pay the penalty of his imprudence."^ The second is, that the guardian's trust is one of obligation and duty, and not of speculation and profit."' We shall have occasion to apply these observations as we proceed. § 889. Guardian's General Powers and Duties as to Ward's Estate. Among the most obvious powers and duties of the guardian in the management of his ward's property are these: To collect all dues and give receipts for the same. To procure such legacies and dis^;ributiv8 shares from testators or others as may have ac- crued. To take and hold all property settled upon the ward by way of gift or purchase, unless some trustee is interposed. To collect dividends and interest, and the income of personal property in general. To receive and receipt for the rents and profits of real estate. To receive moneys due the ward on bond and mortgage. To pay the necessary expenses of the ward's personal protection, education, and support. To deposit properly and invest and rein- vest all balances in his hands. To sell the capital of the ward's property, change the character of investments when needful, con- vert real into personal and personal into real estate, in a suitable exigency; but not without judicial direction. To account to the 27. Milner v. Lord Harewood, 18 28. 2 Kent, Com. 229. Ves. Jr. 259; Capehart v. Huey, 1 Hill, Ch. 405. 1007 THE waed's estate. § 890 ward or his legal representatives at the expiration of his tnist. And, in general, especially if recompensed, to exercise the same prudence and foresight which a good business man would use in the management of his own fortunes, though under more guarded restraints.^" The guardian should, in managing the affairs of his ward, exer- cise the same prudence which an ordinarily prudent man exercises in his own affairs of like nature,*" and is not liable for honest errors in judgment,** and it is the policy of the courts to sustain if possible irregular acts of a guardian where done in good faith and without deitriment to the estate.*'' A guardian has no right to make a gift out of the estate.*' Informal advice by a judge cannot be relied on as protection by the guardian.** § 890. Duty of Loyalty ; Not to Make Money from Estate. The guardian is bound for ordinary diligence if compensated, and for slight diligence at all events, on the usual footing of a bailee of property. It is to be observed, however, that chancery not only punishes corruption, but treats with suspicion all acts and circumstances evincing a disposition on the guardian's part to derive undue advantage from his position. This rule is applicable to trustees in general. The trust should be managed exclusively in the in- terest of the cestui que trust; or, in case of guardianship, for the 29. Genet v. Talmadge, 1 Jotins. Ch. matters are all that can be expected) ; 3; Jackson v. Sears, 10 Johns. 435; Eeynolds' Appeal, 70 Mo. App. 576; Eiehelberger 's Appeal, 4 Watts, 84; Taylor v. Kellogg, 103 Mo. App. 258, Swan V. Dent, 2 Md. Ch. Ill; Cren- 77 S. W. 130; In re Bielby's Estate, 8haw v. Crenshaw, 4 Eich. Eq. 14; 155 N. T. S. 133, 91 Misc. 353 (should Chapman v. Tibbits, 33 N. Y. 889. inform himself of condition of es- One who is liable as a debtor to the tate) ; Scoville v. Brock, 79 Vt. 449, T'ard is not entitled, when sued, to 65 A. 577; Elliott's Adm'r v. Howell, question the validity of the guardian's 78 Va. 297. See Perrin v. Lepper, 72 appointment, not even though he be a Mich. 454, 40 N. W. 859; Detroit co-heir. Johnson v. Blair, 126 Pa. Trust Co. v. Hunrath, 168 Mich. 180, St. 426. 131 N. "W. 147. 30. In re Wood's Estate & Guar- 31. In re Wisner's Estate, 145 la. dianship, 159 Cal. 466, 114 P. 992; 151, 123 N. W. 978. Wainright v. Burroughs, 1 Ind. App. 32. Duffy v. McHale, 35 E. I. 16, 85 393, 27 N. E. 591; Alcon v. Coons, 82 A. 36. N. E. 93 ; Layne v. Clark, 152 Ky. 33. Norris v. Norris, 83 N. Y. S. 77, 310, 153 S. W. 437; Gott v. Culp, 45 85 App. Div. 113. Mich. 265, 7 N. W. 767 (honesty, 34. In re Kimble, 127 la. 665, 103 kindness and ordinary skill in money N. W. 1009. § 890 GUAEDIAN AND WABD. 1008 ward's benefit. The guardian cannot reap any benefit from the use of the ward's money. He cannot act for his own benefit in any contract or purchase or sale as to the subject of the trust If he purchases in his character as guardian, he presumptively uses his ward's funds for that purpose. If he settles a debt upon beneficial terms, or purchases it at a discount, the advantage is to accrue entirely to the ward's estate,*' and the guardian cannot acquire adverse interests in the ward's property," and where he makes investments which he should have made as guardian he will be charged as trustee of the ward.*' Where the guardian pur- chases for himself at sales of his ward's property, his conduct will be closely scrutinized. But where no fraud appears, and the sale 85. White v. Parker, 8 Barb. 48 ; 2 Kent, Com. a29'; Diettrich v. Heft, 5 Barr, 87; Clowes v. Van Antwerp, 4 Barb. 416; Lefevre v. Laraway, 22 Barb. 168 ; Kennaird v. Adams, 11 B. Monr. 102 ; Sparhawk v. Allen, 1 Fos- ter (N. H.), 9; Heard v. Daniel, 26 Miss. 451; Jennings y. Kee, 5 Ind. 257. A guardian is, like other trustees, tound not to reap any personal bene- fits from use of the ward's funds. Peadro v. Carriker, 168 111. 570, 48 N. E. 102; Boyd v. Boyd, 176 111. 40, 51 N. E. 782, 68 Am. St. E. 169 (ward is not barred by delay of 18 years to assert his rights) ; American Surety Co. of New York v. Sperry, 171 111. App. 56; Charles v. Witt, 88 Kan. 484, 129 P. 140; Moyer v. Eleteher, 56 Mich. 508, 23 N. W. 198 ; Brandau v. Greer, 95 Mias. 100, 48 So. 519; Pat- terson V. Booth, 103 Mo. 402, 15 S. W. 543. As a guardian must not reap un- due benefit, he cannot make a collu- sive sale or improve the property for his own benefit. Lane v. Taylor, 40 Ind. 495. He must not derive profit by setting fictitious values, but ac- count according to true valuations. Titles adverse to the ward's interest cannot be disposed of for his own benefit and to the ward's detriment. Spelman v. Terry, 15 N. T. Supr. 205. If the guardian has a life interest in land of which the ward is seized in fee, he cannot apply to the ward the whole cost of removing an encom- brance, principal and interest. Bonme V. Maybin, 3 Woods, C. 0. 724. 36. Hawkins v. Beeves, 112 Ark. 389, 166 8. W. 562 ; Ingram v. Heinti, 112 La. 496, 36 So. 507; Bondreanr v. Lower Terre-Bonne Befining & Mfg. Co., 127 La. 98, 53 So. 456; Johnston V. Loose, 201 Mich. 259, 167 N. W. 1021 (guardian cannot purchase for himself dower interest of widow in ward's land); Town of Thornton v. Oilman, 67 N. H. 392, 39 A. 900 (one who buys from the guardian with no- tice takes no valid title) ; Horton v. Maine, 21 E. I. 126, 46 A. 403; Gulf, C. & S. P. Ey. Co. V. Lemons (Tex. Civ. App.), 152 S. W. 1189. See Cahill V. Seitz, 86 N. Y. S. 1009, 93 App. Div. 105. See In re Stude's Estate (Iowa), 162 N. W. 10; Mann v. Mo- Donald, 10 Humph. (Tenn.) 275. He cannot contract with himself as a guardian, so as to force his ward into a compromise settlement of claims with his other creditors. Cabell v. Shoe Company, 81 Tex. 104. 37. Haynes v. Montgomery, 96 Ark. 573, 1,32 S. W. 651; Taylor v. Calvert, 138 Ind. 67, 37 N. E. 531; Donlon v. Maley, 110 N. E. 92 ; Perry v. Elgin, 15 Ky. Law Eep. 855, 26 S. W. 4; Succession of Hawkins, 139 La. 228, 71 So. 492. 1009 THE waed's estate. § 890 appears beneficial to the ward, tbe more reasonable doctrine is that the transaction is sustainable in equity, subject to the ward's sub- sequent election, on reaching majority, to disaffirm the sale. The guardian, meanwhile, takes the legal title ; more especially if the sale was conducted through a third party, who afterwards conveyed to him.*' The ward is entitled to any profits made with his money by the guardian." Where a guardian speculates with his ward's funds, or employs them in his own business, he must account for the profits. As this is a clear breach of trust, compound interest is properly chargeable. It would seem to be the true rule in equity, where large profits, which ought to have gone to the credit of the cestui qiie trust, are appropriated by his trustee, to require them to be turned in on account; and to impose compoxmd interest instead, with annual or other periodical rests as a penalty only when there are practical difficulties in the way of enforcing such a rule or as a beneficial option to the ward. For it is obvious that in this country a guardian can frequently afford to pay compound interest for the use of his ward's money, if he is suffered to retain the full profits of the speculation for himself.*" It has been held that where a guardian employs his ward's money in a business which he allows his son to manage, with a portion of the profits as his com- pensation, and the transaction is free from fraud, he is not duargo- able with his son's share of the profits.*^ 38. Ex parte Lacey, 6 Ves. 625 ; Le- guardian as well as that of the ward, f evre v. Laraway, 22 Barb. 168 ; Chor- the guardian may, at a sale under penning 's Appeal, 32 Pa. St. 315; the deed, bid in the property in his Hoskins v. Wilson, 4 Dev. & Batt. 243 ; own right to protect himself as well Blackmore v. Shelby, 8 Humph. 439; as his ward. Bimel v. Nester, 203 Crump et al., Ex parte, 16 Lea, 732; Mo. 429, 101 S. W. 69; Same v. Brockett v. Richardson, 61 Miss. 766; Springfield Sav. Bank, 101 S. W. 78. Hudson V. Helmes, 23 Ala. 585. But 39. Martinez v. Meyers, 181 Ala. see Beal v. Harmon, 38 Mo. 435. 293, 61 So. 810; Chanslor v. Chanslor's In Missouri, under the Spanish laws, Trustees, 74 Ky. 663; In re Allard, the guardian might purchase lands 49 Mont. 219, 141 P. 661. of his ward with the court's per- 40. Meyers v. Martinez, 172 Ala. mission. McNair v. Hunt, 5 Mo. 641, 55 So. 498 (where claim made 300. See Boyer v. East, 161 N. Y. for profits, interest on principal and 580, 56 N. E. 114, 76 Am. St. profits charged); Goff's Guardian v. B. 290 (affg. 49 N. T. S. 1132,25 Goff, 123 Ky. 73, 93 S. W. 625, 29 App. Div. 625) (guardian who has Ky. Law Eep. 501; Spear v. Spear, 9 also a dower interest may purchase Eich. Eq. 184; Lowry v. State, 64 at foreclosure sale). Ind. 421; Reed v. Tinunins, 52 Tex. Where a deed of trust taken by a 84. guardian secures the debt of the 41. Kyle v. Bamett, 17 Ala. 306. 64: § 894 GUARDIAN AND WAED. 1010 § 891. Authority Before or After Termination of Office. The guardian will not be allowed for expenses incurred previous to Ms appointment,*^ and lie has no authority to take funds of the estate after resignation.*^ § 892. Guardian Has No Title in Ward's Estate. The guardian as a general rule has no legal title to the peraonal property of the ward,** or to his interest in real estate,*" but take* the proceeds of the sale of trust property.** The legal title to stock issued to A. B., Guardian, is in him individually, and on his death descends to his representatives.*' § 893. Character in Which Holds Funds. One who is executor of a will and also guardian of one of the devisees will, after a settlement of the estate, be regarded as hold- ing funds as guardian,** and a guardian who takes funds of tiie ward will be estopped to deny that he took them as guardian.*' § 894. Right to Possession of Estate. A guardian has the custody and control of the ward's estate.'* IsTor can he with safety permit the administrator of the estate of his ward's father to control property of which he is the legal custodian. And he must hold an administrator to account in all 42. In re Tyndall, 102 N. T. 8. 47. Williams v. Farmers' State 211, 117 App. Div. 294; In re Grant, Bank of Sparks (6a. App.), 97 S. E. 166 N. Y. 640, 60 N. E. 1111 (affg. 249. «7 N. Y. S. 654, 56 App. Div. 176), 48. State to TTse of JaeobB v. (in obtaining custody, etc.). Hearst, 12 Mo. 365, 51 Am. Dec 167. 43. Hendrix v. Eichards, 37 Neb. 49. Francis v. Sperry (OHa.), 176 794, 78 N. W. 378. P. 732. 44. Judson v. Walker, 155 Mo. 166, 50. Hallinan v. Hearst, 133 Cal. 55 S. W. 1083; Seilert v. McAnally, 645, 66 P. 17, 55 L. R. A. 216; Boruff 223 Mo. 505, 122 S. W. 1064; Title v. Stipp, 126 Ind. 32; In re Stnde's Guaranty & Surety Co. v. Cowen Estate (Iowa), 162 N. W. 10; Cro- (Okla.), 177 P. 563; contra, Hunter foot's Ex'r v. Duvall, 3 Ky. Law V. Lawrence's Adm'r, 11 Grat. (Va.) Eep. 541; Boaz's Adm'r v. Milliken, 111, 62 Am. Dec. 640. 4 Ky. Law Eep. 448; Thompson v. 45. Howard v. Pope, 109 Ga. 259, Thompson, 20 Ky. Law Eep. 979, 47 34 S. E. 301; Louisville Trust Co. t. S. W. 1088; Strite v. Furst, 112 Md. Kidd, 29 Ky. Law Eep. 382, 93 8. W. 101, 76 A. 498 ; United States Fidelity 38. See Higginson v. Wathen, 20 Ky. & Guaranty Co. v. Citizens' State Law Eep. 332, 46 S. W. 21; Louisville Bank of Langdon, 36 N. D. 16, 161 Trust Co. V. Kidd, 29 Ky. Law Eep. N. W. 562 (trust relationship arises) ; 382, 93 S. W. 38. In re Bolin's Estate, 22 Okla. 851, 46. Cady v. Lincoln, 100 Miss. 765, 98 P. 934; Tolbert v. Bolin, Id. 57 So. 213. 51. Wills 's Appeal, 22 Pa. St. 325; 1011 THE WAED S ESTATE. § 895 The will cannot require the testamentary guardian to deliver the infant ward his estate upon his marriage."' § 895. Collection of Assets. It is the guardian's first duty to collect the assets of the estate as speedily as possible/* which duty is fixed by law and cannot be governed by the wishes of the ward."* Choses in action should be reduced to possession witJiout unnec- essary delay ; °^ to which we should add, however, that incorporeal personalty of various kinds serves in modem times for a long- continued investment. All claims should be collected as prudence may require, concerning which the guardian has been put upon inquiry,"' or the court may authorize a judgment to be sold where it appears that it cannot be collected without delay. "^ In collecting outstanding debts or prosecuting claims a reason- able time is to be allowed the guardian. Ordinary prudence and diligence is the rule; and for culpable negligence subjecting the Clark V. Tompkins, 1 S. C. (N. S.) 119; Coggins v. Flythe, 113 N. C. 103; Denholm v. McKay, 148 Mass. 434. 52. Hudson's Guardian v. Hudson, 160 Ky. 432, 169 S. W. 891. 53. Independent Order of Mutual Aid V. Stahl, 64 111. App. 314; United States Fidelity & Guaranty Co. v. State, 40 Ind. App. 136, 81 N. E. 226 (should pay debt he owes estate) ; Boaz 's Adm 'r v. Milliken, 4 Ky. Law Eep. 448 ; Fairex v. New Orleans City B. Co., 36 La. Ann. 60; Pertuit Y. Damare, 50 La. Ann. 893, 24 So. 681; Norris v. Baumgardner, 97 Md. 534, 55 A. 619; Strite v. Furst, 112 Md. 101, 76 A. 498; Daffron v. Modem Woodmen of America, 190 Mo. App. 303, 176 S. W. 498; Mason v. Ackley, 53 Okla. 157, 152 P. 846; Mason v. Evans, 52 Okla. 484, 153 P. 133; Dun- leavy v. Mayfield, 56 Okla. 470, 155 P. 1145; Brewer v. Ferryman, — Okla. -•, 162 P. 791; Hughes v. Green, — S. C. — , 98 S. E. 201 (rent) ; Hunter t. Lawrence's Adm'r, 11 Grat. (Va.) Ill, 62 Am. Dec. 640; Hutson y. Jenson, 110 Wis. 26, 85 N. W. 689; Mann v. Mann, 119 Va. 630, 89 S. E. 897 (money due on con- demnation of land). See Benson v. Siemens, 156 N. T. S. 1, 92 Misc. 509 (fund under control of special term not turned over to guardian). 54. People's Bank v. Wood, 207 111. App. 602. 55. See HiU, Trustees, 447, and cases cited; Caffrey v. Darby, 6 Ves. 488; Powell v. Evans, 5 Ves. 839; Lewson v. Copeland, 2 Bro. C. C. 156 ; Tebbs V. Carpenter, 1 Madd. 298; Caney v. Bond, 6 Beav. 486. So as to infant husband or wife. Ware v. Ware, 28 Gratt. 670; Shanks v. Ed- mondson, 28 Gratt. 804. 66. The guardian of a soldier's heir should ascertain as to his pension and bounty rights, and pursue claims ac- cordingly. Clodfelter v. Bost, 70 N. C. 733. Where the guardian puts a claim for collection into the hands of an attorney in good standing, who col- lects and embezzles the money, he is not responsible for the loss, if using common prudence under the circum- stances. Landmesser's Appeal, 126 Penn. St. 115. 57. Schmidt v. Shaver, 196 HI. 108, 63 N. E. 655, 89 Am. St. Eep. 250. § 895 GUAKDIAN AND WABD. 1012 estate of his ward to loss lie may make himself personally liable, even though the demand be against a person residing in another State/* He is presumably liable to his ward for the nominal amount of debts due to the ward's estate which he has failed to collect; and if they were not, by the exercise of good business judgment, collectible for their face, he should be able to show this." He is liable not only for what he actually receives, but what he ought to receive.'" And where the party is insolvent and the guardian loses the chance of gaining some dividend on the claim by his supine negligence, he is also answerable,"^ but he wiU not be chargeable for honest delay in prosecuting remedies for collec- tion of choses in action if such delay seems advisable.*" He is not to sue in all cases where ordinary modes of collection fail ; for the €zpenses of litigation are to be weighed against the chances of realizing a benefit.** What is a reasonable time will depend upon circumstances. It is his duty to contest all improper claims, though presented by the surviving parent** If a guardian takes notes of third persons in payment of an indebtedness to his ward, and afterwards receives the money upon the notes and appropriates the money as guardian, the payment by the debtor is sufficient." Where one in paying a debt to the guardian overpays him, the guardian is personally liable for the excess,*" but money paid to a guardian by mistake cannot be recovered again, if he has paid it out before receiving notice of the mistake,*'' and a guardian has no authority, without order of the court, to refund money collected.** Formal acts in beneficial chattel transactions for his ward do not require a judicial order." A person named in a will as testamentary guardian who has 68. Potter v. Hiscox, 30 Conn. 508. Waring v. Darnall, 10 Gill & Johns. 59. Seigler v. Seigler, 7 S. C. 317. 127; Love v. Logan, 69 N. C. 70. 60. State v. "Womaek, 73 K. C. 397; 63. §§ 925, 926. StothofE V. Reed, 32 N. J. Eq. 313. 64. Ex parte Guernsey, 21 111. 443. 61. Webber's Estate, 133 Pa. St. 65. Jones v. Jones, 20 la. 388. 338; Eonsh v. Griffith, 65 W. Va. 752, 66. Tow v. ElUott, 33 N. C. 51. 65 S. E. 168 (guardian is liable for 67. Massey v. Massey, 3 Hill, Ch. money he could have collected, with 492. diligence). 68. Loyal Americans v. Edwards, 62. In re Schandoney's Estate, 133 106 111. App. 399. Cal. 387, 65 P. 877 ; Nagle v. Robins, 69. Thus he may discharge a tontine 9 Wyo. 211, 63 P. 154 (where it ap- life insurance policy upon receiving pears that debtor wUl pay if given its actual surrender value when the time); Stem's Appeal, 5 Whart. 472; proper period arrives. Maelay v. Equitable Co., 152 TJ. S. 4W. lOlS THE wabd's estate. § 897 never been appointed as such or qualified has no authority to col- lect assets.'" § 896. What Property is Assets of the Estate. The guardian's responsibility extends only to such property of hia ward as is accessible to him. But having once come into I)oesession, or gained knowledge of his right of possession, it is his duty to account for the property ; for the law then imposes upon him a prima facie liability.'^ And the fact that money was col- lected in another State beyond his jurisdiction cannot affect his obligation to account ; but where assets never reach his hands from another State or country, the question is whether he used such diligence in attempting to collect as a prudent business man would usually exercise under such circumstances.'^ When one assumes the office of guardian, indebted at the time to his ward, the indebt- edness becomes assets to be properly accounted for.''* Courts of equity follow the ward's property whenever wrong- fully disposed of or appropriated by the guardian ; and any person in whose hands it is found will be held as trustee, if it can be shown that it came into his possession with notice of the trust.'* The guardian himself may follow his ward's property wherever he can find it, whether into the hands of a former guardian or such guardian's transferee."' And legacies charged on land and pay- able to the ward on reaching majority, though paid meanwhile to his guardian, remain a lien on the land until actually received by the ward." § 897. Reasonable Time Allowed for Investment. The guardian is not chargeable for interest from the date of his appointment or receipt of funds, but a reasonable time for invest- ment must be allowed him." A familiar rule charges the guar- 70. Ohnstead v. Taylor, 135 Mich. had converted the ward's estate. Mar- 316, 85 N. W. 740, 8 Det. Leg. N. 10. tin v. Davia, 80 "Wis. 376. 71. Bethune v. Green, 37 Ga. 56; 74. Carpenter v. McBride, 3 Fla. Howell V. Williamson, 14 Ala. 419; 393. See McCall v. Plippin, 58 Tenn. Martin v. Stevens, 30 Miss. 159. 161. 72. Harris v. Berry, 82 Ky. 137. 75. Fox v. Kerper, 51 Ind. 148. 78. United States Fidelity & Guar- 76. Cato v. Gentry, 28 Ga. 327. anty Co. v. State, 40 Ind. App. 136, 77. Thomas v. Thomas, 136 Ark. 81 N. E. 236. 579, 191 8. W. 227; Corcoran v. Eene- Thus, where he becomes guardian han, 24 App. D. O. 411; GriflSn v. upon an express agreement to assume Collins, 125 Ga. 159, 53, S. E. 1004 all liabQities of his predecessor, who (one year) ; Abrams v. United States Fidelity & Guaranty Co., 127 Wis. § 898 GTJAEDIAN AND WAED. 1014 dian with interest for neglecting to invest his ward's money after six months; yet deferring interest for that length of time is not invariable, but depends upon the circumstances/* and may for good reason leave a proper amount of the funds of the estate uninvested.^' Like all other trustees, the guardian is bound to make his ward's funds productive. He should see that the capital which comes to his hands is well secured ; procure a change of securities whenever necessary ; and invest surplus moneys where they may draw inter- est. For funds accruing during the continuance of his trust he is allowed a reasonable time for making his investment, usually lim- ited to six months, though in some cases a year is allowed, and in others only three months ; and he cannot suffer the ward's money to remain longer idle.*" But he may keep a suitable surplus on hand for current and contingent expenses; also sums too small to be wisely invested.'^ And family relics and ornaments, house- hold furniture and farm stock, are generally exempted from the rule of investment. § 898. Character of Investments. The investment of the trust funds is one of the most important duties of a guardian, both as respects the interests of his ward and his own security. Testamentary guardians, like trustees under deeds of trust, should follow the direction of the testator in making investments ; and for losses arising from such course they are not responsible. But their powers are to be construed strictly; and where the will is silent or the directions are in general terms, or manifestly improper, chancery rules of investment must prevail.'" We have already observed that conversions are not favored; that 579, 106 N. W. 1091, 5. L. B. A. 575, 79. Gott v. Culp, 45 Mich. 265, 7 115 Am. St. Rep. 1091 (two months). N. W. 767. See In re Evans' Estate, There are extreme cases in which 7 Pa. Super. Ct. 142 (guardian liable a guardian would not be charged for where leaves money uninvested four delaying to invest, even with simple years in bank which fails), interest, it appearing on proof that 80. Worrell's Appeal, 23 Pa. St. he could not do so advantageously by 44; White v. Parker, 8 Barb. 48; exercising due dUigenee. Brand v. Karr v. Karr, 6 Dana, 3; Pettus v. bott, 42 Ala. 499; Ashley v. Martin, Sutton, 10 Eich. Eq. 356; Owen v. 50 Ala. 537. At the present day there Peebles, 42 Ala. 338 ; infra, § 902. are banks or trust companies which 81. Baker v. Richards, 8 S. & E. 12 ; allow small rates of interest on bal- Knowlton v. Bradley, 17 N. H. 458. ances subject to cheek. 82. Macphers. Inf. 266. And see 78. Crosby v. Merriam, 31 Minn. Hill, Trustees, 368-384, and Wharton's 342; Thurston, Re, 57 Wis. 104. notes. 1015 THE waed's estate. § 898 is, the investment of personalty in lands or of lands in personalty.'* But in many of our States the probate courts are allowed at dis- cretion, like courts of equity, upon a proper showing, to permit the sale of a ward's lands, and the change or conversion from unproductive to productive property, or the improvement of land, all for the ward's intended benefit.** In England the estates of infants and persons of unsound mind under chancery guardianship are usually controlled by the court. The general practice is to get in all the money due the ward and invest it in the public funds. For this purpose a receiver is ap- pointed, if necessary. The court will not allow the ward's money to be left out on personal security, without reference to a master as to the sufficiency of the security ; nor upon judgment security ; but, where advantageously invested on the security of real estate, in Great Britain, the court will not disturb the investment. The statute of 4 and 5 Will. IV., c. 29, authorizes investments on real security in Ireland, under the direction of the English court of chancery.*' Under the English rule a trustee can only protect himself from risk when he invests the trust funds in government securities or has an order of court to invest in any other securities. This is also the law in Pennsylvania, New York and New Jersey, and applies to the committee of a lunatic.*" In this country the management of the personal estate of infants and others is usually left to their guardian, subject to recognized principles of law which he is bound to follow, and in the absence of statute a guardian will be protected in using his honest judg- ment in investments,*^ but not in making partial payments on a 83. See § 921. A guardian who 8G. Comm. v. Eiley, 226 Pa. 244, takes title to lands in his own name, 75 A. 367, 44 L. R. A. (N. S.) 889. paying partly in his ward's money, 87. Baldy v. Hunter, 171 TJ. 8. 388, and giving a mortgage for the unse- 18 S. Ct. 890, 43 L. Ed. 208, 98 Ga. cured sum, is guilty of waste. Bob- 170, 25 S. B. 416 (Confederate inson v. Pebworth, 71 Ala. 240. So, bonds). too, where the ward's personalty ia tinder Laws Neb. ISfOS, ch. 62, § 3, invested in real estate without an or- a guardian may by authority of the der of the court. West Shields v. court exercise an option to purchase Lewis 20 Ky. Law Eep. 1601, 49 land covenanted to his wards, and S. W. 803. may pay in cash, or partly cash. 84. See Ames v. Ames, 148 III. 321. Ankeny v. Eichardson, 187 F. 550, See next chapter after. 109 C. C. A. 316 ; Slauter v. Favorite, 85. Macphers. Inf. 266; Hill, Trus- 107 Ind. 291, 4 N. E. 880, 57 Am. tees 3ff5' Norbury v. Norbury, 4 Eep. 106 (where guardian investing Madd. 191. ^^ mortgage examined title ten days § 898 OTTAEDIAN AND WAI6D. 1016 contract to purchase property in excess of the estate," and. he will not be allowed for speculation or investments not authorized by law,'* and the guardian will not be allowed for investment in stocks and bonds which he appropriated to his own use.*" It is the general rule that either public securities or real securities are to be preferred.'^ Investments in bonds of the United States, or of the State having jurisdiction of the ward, are doubtless proper ; so mortgage investments on first-class property within the State, and city and town securities, are frequently designated as suitable investments. But the stock of railway, navigation, and other incorporated companies, whose stability is uncertain, is unsuit- able ; °^ and corporate bonds are a security preferable to their before loan made and found no in- cumbrance) ; Hughes v. White, 117 Ind. 470, 20 N. E. 157 (transaction depends on situation at the time) ; In re Wianer's Estate, 145 la. 151, 123 N. W. 978 (real estate) ; Hender- son V. Lightner, 29 Ky. Law Eep. 301, 92 8. W. 945; Gott v. Gulp, 45 Mich. 265, 7 N. W. 767; National Surety Co. v. Manhattan Mortgage C ., (N. T. Sup.), 174 N. T. S. 9 (not in subordinate interest in mort- gage) ; Mumford v. Eood, 153 N. W. 921; Scoville v. Brock, 81 Vt. 405, 70 A. 1014 (may act on general repu- tation of the securities) ; Nagle v. Eobins, 9 Wyo. 211, 62 P. 154 (evi- dence of verbal advice by judge is admissible on question of guardian's good faith). See Sueesaion of Buddig, 108 La. 406, 32 So. 361 (guardian must clearly show that law complied with). See Smith v. Moore (S. C), 95 8. E. 351 (purchase of widow's interest in homestead unauthorized). 88. Scott V. Reeves, 131 Ala. 612, 31 So. 453; Harris v. Preston, 153 Ky. 810; 156 S. W. 902. 89. Stubblefield v. Stubblefield, 105 Ark. 594, 151 S. W. 994 (loss on notes) ; Rogers v. Dickey, 117 Ga. 819, 45 S. E. 71; American Surety Co. of New York v. Sperry, 171 111. App. 56; Collins v. Slaughter, 1 Ky. Law Rep. 261; In re Moore, 112 Me. 119, 90 A. 1088; Kimball v. Perkins, 130 Mass. 141; Shelton v. Laird, 68 Miss. 175, 8 So. 271; Empire State Surety Co. v. Cohen, 156 N. Y. 8. 935, 93 Misc. 29^ (incumbered real estate) ; Woodard v. Bird, 105 Tenn. 671, 59 S. W. 143 Ingenhuett v. Hunt, 15 Tex. Civ. App. 248, 39 8. W. 310. 90. In re Dow, 133 Cal. 446, 65 P. 890. The retention of money in his own hands by the guardian of a ward and the giving of a note therefor cannot be said to amount to an "invest- ment." Fidelity & Deposit Co. of Maryland v. Freud, 115 Md. 29, 80 A. 603. 91. Gray v. Pox, Saxt. 259; Wor- rell's Appeal, 9 Barr, 508; Nance v. Nance, 1 S. C. (N. 8.) 209. 92. Worrell's Appeal, 23 Pa. St. 44; Allen v. Gaillard, 1 S. C. (N. S.) 279 ; French v. Currier, 47 N. H. 88. There are a number of recent de- cisions in Virginia, North Carolina, South Carolina, Alabama, and other Southern States, of temporary im- portance, which relate to investments in what are known as "Confederate securities," and settlements by a guardian in the so-called "Confeder- ate money. ' ' Among these see Powell V. Boon, 43 Ala. 459; White v. Nes- bit, 21 La. Ann. 600; Brand v. Ab- bott, 42 Ala. 499; Sudderth v. Mc- Combs, 65 N. C. 186 ; Coffin v. Bram- litt, 42 Miss. 194; Parsley v. Martin, 101? THE waed's estate. § 898 stooL United States Bank stock has been considered a proper investment ; •* and so with stock in a solvent bank of good repute.** And while, in some States, fiduciary officers are strictly limited in their power of investments, in others, as Massachusetts, there is no favored stock or security, and they are only bound to exercise reasonable prudence and sound faith.'^ While in many States the guardian's investments of his ward's moneys in stocks is illegal, and it must be his loss if the stock turn out unproductive, the tendency of the decisions is to make him liable, in case the stock prove productive, for thfj highest market value of the shares which he realized or might have real- ized, and for all the dividends he received from them.'® But where the guardian's investment in his own business or speculations is followed by his own insolvency, the ward gains no priority over other creditors if the fund cannot be traced out and identified; and this subjection of a ward's capital to utter loss is a strong reason for discouraging it.°^ Generally, however, as to invest- ments or changes of investment in personal property, the guardian may, in good faith and the exercise of ordinary prudence and discretion, act without a court's order.*' An unauthorized invest- ment is not void but voidable only,** and one participating in an illegal investment knowingly will be liable to the ward for losses.^ 77 Va. 376; Bobertson v. Wall, 85 N. it appearing that he had used fair C. 283, 500; Green v. Bountree, 88 prudence in examining the title. N. C. 164; Pannill's Adm'r v. Callo- Slauter v. Favorite, 107 Ind. 291. ways, 78 Va. 387. Such investment See Elliott's Adm'r v. Howellandals, was held unlawful in Lamar v. Mieou, 78 Va. 297. In Jack's Appeal, 94 112 TJ. S. 452, notwithstanding the Pa. St. 367, the guardian was ab- motive of the guardian was to save solved, where the security became property from confiscation. worthless through an extraordinary 93. Boggs V. Adger, 4 Eich. Eq. shrinkage of real estate values. 408; contra, Smith v. Smith, 7 J. J. 96. French v. Currier, 47 N. H. Marsh. 238. And see Watson v. 88; Lamb's Appeal, 58 Pa. St. 142; Stone, 40 Ala. 451. Atkinson v. Atkinson, 8 Allen, 15. 94. Haddock v. Planter's Bank, 66 97. See Englar y. Offutt, Trustee, Ga. 496. 70 Md. 78. 95. Konigmacher 's Appeal, 1 Penn. 98. Durrett v. Commonwealth, 90 207; Kimball v. Perkins, 130 Mass. Ky. 312. 141; Lovell V. Minot, 20 Pick. 116; 99. MeCutcheon v. Roush, 139f la. Nance v. Nance, 1 S. C. (N. S.) 209; 351, 115 N. W. 903; Jordan t. Same, Swartwout v. Oaks, 52 Barb. 622. Id. Where money was lost in a mortgage 1. Hoyt v. Dollar Savings Bank of investment through a defeetife title, the City of New York, 175 N. T. S. the guardian was relieved of the loss, 377. § 899 GUABDIAN AND WAED. 1018 § 899. Separation of Funds. He must not mingle guardiansliip funds with his own private funds/ but he need not keep two separate and distinct accounts for principal and income.* Where there are several wards, he must allot to each his due share of expenses and profits. And if he becomes insolvent, and gives the bulk of the property received by him to one, and little or nothing to the others, equity will still treat the property as belonging to the wards in their proper shares.* Money temporarily in the guardian's hands should be deposited in some responsible bank of good repute. But wherever placed and however invested, the trust funds should be separated, by distin- guishing marks, from his private property ; exceptions occurring, however, in some cases of a temporary deposit; as, for instance, where the money is left in one's iron safe with his private valuable papers for no unreasonable length of time and under circumstances imputing to him no want of ordinary prudence and diligence, either in placing and keeping it there in that condition, or in pursuing the thief who took it out. Otherwise, he would be per- sonally liable for loss. Hence, if a guardian deposits money of the ward in the bank to his own account, or takes a certificate of deposit simply to himself, and the bank afterwards fails, he must suffer the consequences ; ° though it is otherwise where he deposits there not imprudently or dishonestly in his trust capacity.* So, if he purchases stock or takes a promissory note in his own name, it will be treated as his own; but not, necessarily, to the ward's prejudice, for it might otherwise be clearly identified and traced as the ward's property.'' And it would appear that he is not permitted in such cases to show by other evidence an intent to charge his ward ; for the act itself is conclusive against him.' 2. In re Stude's Estate (la.), 162 v. Whitehead, 66 N. C. 29«. As to a K. W. 10; In re Allard, 49 Mont. certificate of deposit, see Booth v. 219, 141 P. 661; Hall v. Turner's Wilkinson, 78 Wis. 652. Estate, 78 Vt. 62, 61 A. 763. 6. Post's Estate, Myrick's Prob. 3. Eountree v. Pursell, 1 Ind. App. 230; Law's Estate, 144 Pa. St. 499. 522, 39 N. E. 747. 7. Jenkins v. Walter, 8 Gill & Johns. 4. Case of Hampton, 17 S. & R. 144. 218 ; White v. Parker, 8 Barb. 48 ; 5. Wren v. Kirtou, 11 Ves. 377; Knowlton v. Bradley, 17 N. H. 458; Eletcher v. Walker, 3 Madd. 73 ; Mc- Brown v. Dunham, 11 Gray, 43 ; Beas- Donnell v. Harding, 7 Sim. 178; ley v. Watson, 41 Ala. 234. Routh V. Howell, 3 Ves. 565; Mat- 8. Brisbane v. Bank, 4 Watts, 98; thews V, Brise, 6 Beav. 239; Atkinson Stanley's Appeal, 8 Barr. 431. 1019 THE waed's estate. § 901 § 900. Reinvestment. Where the trust property is already invested on securities which would not be sanctioned by the court, the question sometimes arises how far it is the guardian's duty to call them in and invest in other securities. In this, and in matters of reinvestment, the same principles would be held to apply as to general trustees. And since such questions have arisen almost always under testa- mentary trusts, and not as between guardian and ward, the reader is referred to works on that subject for a fuller exposition of the law. We will simply add, that much is to be left to a guardian's discretion, in this and all other respects, where he manages the property of his ward on the footing of a trustee ; and that he will not be held to strict account for losses occasioned in the exercise of his authority, where he hais acted bona fide, and according to the best of his judgment, or with average good judgment, though not with all the promptitude and skill which the exigencies of the ward's situation demanded.* § 901. Statutes Governing Investments. There are statutes in many States which authorize the invest- ment by fiduciaries only in particular kinds of securities. In others it is provided that investments may be made in any manner for the interest of all concerned.^" Guardians are in various States restricted to investments made only under order of court, ^^ 9. See Hill, Trustees, and Whar- proper hearing) ; Mclntyre v. The ton's notes, 3TO-384. And see Perry, People, Use, Etc., 103 111. 142; Trusts, chs. 14, 21. Baston v. Somerville, 111 la. 164, If the guardian on his appointment 82 N. W. 475, 82 Am. St. E. 502 ; finds in the estate investments of a McCutchen v. Boush, 139 la. 351, kind not authorized he shauld sell 115 N. W. 903; Jordan v. Same, Id.; them within a reasonable time and Eerryhill v. Jackson (Okla.), 172 P. will be liable for loss if he does not 787 (sale under irregular order of do so. In re Tunt's Estate, 170 N. court upheld); Francis v. Sperry T. 8. 303, 103 Misc. 358. (Okla.), 176 P. 732; In re Wood's 10. Gary v. Cannon, 3 Ired. Bq. 64. Estate, 247 Pa. 478, 93 A. 634; Nagle See State v. Harrison, 75 N. C. 432; v. Eobins, 9 Wyo. 211, 62 P. 154 Stevens v. Meserve, 73 N. H. 293, 61 (verbal advice by judge to guardian A. 420, 111 Am. St. B. 612 (mort- is not an order of court protecting gacres on real estate of double the him in making investments). See amount of the loan — guardian may Davidson v. I. M. Davidson Eeal Es- determine value of real estate). tate & Investment Co., 226 Mo. 1, 11. Corcoran v. KostrometinofE, 164 125 S. W. 1143 (where is no money ¥. 685 (only after notice) ; In re in estate order authorizing invest- Wood's Estate and Guardianship, ment is not binding on widows). See 159 Cal. 466, 114 P. 992 (after In re Jiskra's Estate (Wash.), 182 § 902 GTJAEDIAW AND WABD. 1020 OT that they cannot invest in real estate/^ or in a non-resident corporation," or in anything other than public securities." § 902. When Chargeable with Interest on Investments. N"egIigenoe and unreasonable delay in the investment of trust funds is a breach of official duty for whicL. the trustee is held answerable. And where the guardian carelessly suffers cash bal- ances to remain idle in his hands he is chargeable with interest,^' and in case of fraud or positive misconduct with compound inter- est/' compounded yearly.^' It remains a disputed question P. 961. See Pace v. Pace (Okla.), 172 P. 1075 (order of court based on mistake no protection). 12. In re Decker, 76 N. T. 8. 315, 37 Misc. 527; In re Bolton, 159 N. Y. 129, 53 N. E. 756, 56 N. T. S. 1105 (order of surrogate authorizing pur- chase of residence for ward is void). See Beakley v. Ford, 123 Ark. 383, 185 8. W. 796. 13. In re Decker, 76 K. Y. 8. 315, 37 Misc. 527. 14. In re Decker, 76 N. Y. S. 315, 37 Misc. 527 (not in bank stock). 15. Willis V. Eice, 157 Ala. 252, 48 So. 397 (simple interest after par- tial settlement) ; Merritt v. Wallace, 76 Ark. 217, 88 S. W. 876 (ten years' delay) ; France v. Shockey, 92 Ark. 41, 121 8. W. 1056 (6 per cent.) ; Parker v. Wilson, 98 Ark. 553, 136 S. W. 981, stay of judgment granted, 99 Ark. 344, 137 8. W. 926; In re Boyes' Estate, 151 Cal. 743, 90 P. 454 ; Robinson v. Smith, 206 111. App. 556 (guardian allowing interest to accumulate not chargeable as if he had collected it annually and released it) ; Kinsey v. State, 71 Ind. 32 ; Marquess v. La Baw, 82 Ind. 550; 1,1, re Stude's Estate (la.), 162 N. W. 10; GofE 's Guardian v.Goff, 123 K. 73, 93 S. W. 625, 29 Ky. Law Rep. 501; In re Watson, 51 La. Ann. 1641, 26 So. 409; State ex rel. Deekard v. Macom (Mo. App.), 186 8. W. 1157; In re Pmyne, 73 N. Y. 8. 859, 68 App. Div. 5S4 (compounded annual- ly) ; In re Ward, 98 N. Y. 8. 923, 49 Misc. 181; In re Boyle's Estate, 67 Pa. Super. Ct. 381 De Cordova v. Rogers, 97 Tex. 60, 75 8. W. 16 (added to income) ; Freedman v.. Vallie (Tex. Civ. App. 1903), 75 8. W. 322 (10 per cent.) ; Logan v. Gay, 99 Tex. 603, 90 S. W. 861, 87 8. W. 852; Brockschmidt v. Becker (Tex. Civ. App. 1910), 132 8. W. Ill; Yates V. Watson (Tex. Civ. App.), 187 S. W. 548; Elliott's Adm'r v. Howell, 78 Va. 297. See In re Wohlers, 164 N. Y. 8. 936, 98 Misc. 500 (guardian entitled to interest on legacies to ward). 16. Barney v. Saunders, 18 How, 535; Swindall v. SwindaU, 8 Ired. Eq 285; Knott v. Cottee, 13 E. L. & Eq 304 ; Stark v. Gamble, 43 N. H. 465 Mackin v. Morse, 130 Mass. 439 Suavely v. Harkrader, 29 Gratt. 112 Tyson v. Sanderson, 45 Ala. 364; Clay V. Clay, 3 Met. (Ky.) 548; Raw- son V. Corbett, 150 111. 466. But see Reynolds v. Walker, 29 Miss. 250. Compound interest should not be charged where there is no wilful breach of duty; nor where the ward, on coming of age, voluntarily leaves the money in the late guardian's hands without a demand. Kattelman V. Estate of Guthrie, 142 111. 357. 17. In re Dow, 133 Cal. 446, 65 P. 890; In re Hamilton's Estate, 139 Cal. 671, 73 P. 578 (funds used in guardian's own business) ; Glassell v. Glassell, 147 Cal. 510, 82 P. 42; Gay V. Whidden, 64 Fla. 295, 59 So. 89'6; Jones V. Nolan, 120 Ga. 588, 48 S. E. 1021 THE WAKD S ESTATE, § 902 whether the guardian should be charged with compound interest for mere delinquency ; but it seems that he should not. In some cases a trustee has been so charged, because the trusts under which he acted required him to place the fund where more than simple interest would have accumulated. In others, the principle seems to have been to exact it as a penalty for his misconduct in deriving, or seeking to derive, some pecuniary advantage from the trust money, or in squardering it. In all cases courts of chancery have exercised a liberal discretion, according to the circumstances.^* The rule announced by Chancellor Kent cannot, therefore, be con- sidered quite accurate.^" Interest may be compounded only to the time of the termination of guardianship,^" and the compounding of interest must cease after the wards arrive at maturity.^'^ If the guardian takes the funds fraudulently j^'* or improperly invests them, he is liable for the highest legal rate of interest,^* but where an expenditure is 166; Lake v. Kettenbaeh (Ida.), 181 charged interest nnless he has made P. 705; Blakeney v. Wyland, 115 la. 607, 89 N. W. 16 ; Charles v. Witt, 88 Kan. 484, 129 P. 140 (rents); Commonwealth v. Lee, 120 Ky. 433, 89 S. W. 731, 990, 27 Ky. Law Eep. 806, 28 Ky. Law Eep. 596; In re Noble's Estate, 178 Pa. St. 460, 35 A. 859 Smith v. Moore (S. C), 95 S. E. 351; Seheib v. Thompson, 23 Utah, 564, 65 P. 499 (10 per cent, compounded annually). See In re Anderson, 97 Wash. 688, 167 P. 71. See Forbes v. Ware, 172 Mass. 306, 52 N. E. 447 (where no fraud or de- mand shown). 18. See language of the master of the rolls, in Jones v. Poxall, 13 E. L. & Eq. 140; Eoche v. Hart, 11 Ves. 58. 19. 2 Kent, Com. 231, and note i6., with citation of authorities. And see Roche V. Hart, 11 Ves. 58; Eobinson V. Eobinson, 9 E. L. & Eq. 70; Light's Appeal, 24 Pa. St. 180; Kenan t. Hall, 8 6a. 417 ; Greening v. Fox, 12 B. Monr. 187; Bentley v. Shreve, 2 Md. Ch. 215; Pettus v. Clausen, 4 Eich. Eq. 92 ; Farwell v. Steen, 46 Vt. 678; Finnell v. O'Neal, 13 Bush, 176. And, pending a judicial decree upon his final balance, one is under no ob- ligation to invest and should not be use of the fund or earned interest. Be Mott, 26 N. J. Eq. 509. Mere fail- ure of the guardian to file annual ac- counts does not render him liable for compound interest. Ashley v. Martin, 60 Ala. 537. He should be so charged only in cases of fraud or flagrant breach of trust. Thurston Be, 57 Wis. 104. And see Shaw v. Bates, 53 Vt. 360. 20. Stewart v. Sims, 112 Tenn. 296, 79 S. W. 385; Windon v. Stewart, 48 W. Va. 488, 37 S. E. 603. 21. Tanner v. Skinner, 11 Bush (Ky.) 120; Tanner v. Skinner, 74 Ky. 120. See In re Noble's Estate, 178 Pa. St. 460, 35 A. 859. 22. Smith v. Smith, 210 F. 947 (notwithstanding order of court au- thorizing him to borrow ward's money); Waldatein v. Bamett, 112 Ark. 141, 165 8. W. 459; Fisher v. Brown, 135 N. C. 198, 47 S. E. 398 (8 per cent.); Whitfield v. Burrell, 54 Tex. Civ. App. 567, 118 S. W. 153. 23. Francis v. Sperry (Okla.), 176 P. 732; Cross v. Eubey (Mo. App.), 206 S. W. 413; Murph v. MeOuUough, 40 Tex. Civ. App. 403, 90 S. W. 69. § 903 GUAEDIAN AND WAKD, 1022^ made in good faith, though not allowed by the court, the guardian will be charged with simple interest only/* One acting as guardian may be charged with compound interest in the same way as a guardian regularly appointed/" If the guardian keeps no accounts, and cannot show what inter- est he made on the funds of the estate, he must account for interest at the legal rate from the time when they should have been invested/' Where he loans his ward's money on usury, and thereby forfeits the whole debt, he is liable for principal and interest/' But this need not prevent him from investing at more than the ordinary or " legal " rate, if it be in reality lawful ; and in some States he is bound to do so/* The guardian will be allowed interest on disbursements he has made from his own funds for the ward only where they are large in amount and made early in the year/^ But interest may not be enforced where the guardian was not allowed for sums paid out for the ward which amounted to more than the interest/" The guardian is chargeable with interest actually made on the funds of the estate,*^ compounded annually/^ § 903. Loans by Guardian. The guardian in the absence of statute is bound to use the prudence of a careful business man in making loans, and is liable for failure to do so,** and should take proper security.** But for 24. Camplbell v. Clark, 63 Ark. 450, Ky. 430, 180 S.W. 803 (not chargeable 39 S. W. 262; In re Smith, 89 N. Y. on income in excess of rental fixed S. 639, 97 App. Div. 157. caused by improvements made by 25. Kester v. Hill, 46 W. Va. 744, guardian) ; In re AUard, i^ Mont. 34 S. E. 798. 219, 141 P. 661 (guardian cannot 26. Moyer v. Fletcher, 56 Mich. 508, transfer loan from account of one 23 N. "W. 198. ward to another). 27. Draper v. Joiner, 9 Humph. 612. 32. Boynton v. Dyer (18 Pick.), 35 28. Poteaux v. Lepage, 6 la. 123; Mass. 1; Miller v. Condon (14 Gray), Frost T. Winston, 32 Mo. 489. 80 Mass. 118; Anderson v. Sileox, 82 29. Bliss V. Spencer (Va.), 99 S. E. S. C. 109, 63 S. E. 128 (from begin- 593. ning of year succeeding year of ap- 30. Grifath's Ex'r v. Bybee, 24 Ky. pointment). Law Eep. 666, 69 S. W. 767 ; Sayers 33. Des Moines Sav. Bank v. Krell, V. Cassell (Va. 1873), 23 Grat. 525. 176 la. 437, 156 N. W. 858; Atkinson 31. Smith V. Smith, 210 P. 947; v. Wittig, 19 Ky. Law, 513, 40 8. W. Griffin v. Collins, 125 Ga. 159, 53 S. 457 (loan to failing corporation se- E. 1004; Hedges v. Hedges, 24 Ky. cured by notes of failing firm is not Law Eep. 2220, 73 S. W. 1112 ; Koyl prudent) ; In re Allard, 49 Mont. 219, V. Lay, 194 Mo. App. 291, 187 S. W. 141 P. 661; Cabell v. McLish (Okla.), 279, 196 S. W. 433; Garrett v. Carr, 160 P. 592; Nagle v. Eobins, 9 Wyo. 1 Bob. (Va.) 196 (surplus of inter- 211, 62 P. 154. est). See Bell V. Bell 'b Guardian, 167 34. Corcoran v. Kostrometinoff, 164 1023 THE WAKD S ESTATE. 903 losses which are without the protection of this rule, the guardiaa or other trustee is always personally responsibla And loans on the credit of a single individual (even though it be the child's parent)'" or a single firm, without other security, or with very doubtful security, are not sustained ; '* except perhaps in special instances of transactions with some failing or doubtful debtor already owing the ward's estate, with whom one seeks to make as prudent and advantageous terms as possible. Nor are investments in indorsed notes of parties of bad or doubtful standing to be upheld ; *' though the rule would be otherwise if their credit was good. To lend money deliberately and without special excuse, on what one knows is insufficient security, is a waste of the ward's estate,'* and where he takes security in his own individual name he will be liable as insurer ; '° and if the guardian uses due dili- gence he will not be liable though loss ensues.*" The guardian is liable if he makes a loan to himself.*^ Statutes often require the approval of the court in loans,*^ and the guardian will be protected if he obeys an order of court.*' If a loan by the F. 685; Leaeh v. Gray (Ala.), 77 So. 341; In re Carver's Estate, 118 Cal. 73, 50 P. 23; Line v. Lawder, 122 Ind. 548, 23 N. E. 758; Lovell v. Minot, 20 Pick. 116. See Torry v. Frazer, 2 Redf . 486 ; Norris v. Norris, 83 N. Y. S. 77, 85 App. Div. 113; Kunz V. Eagsdale (Tex. Civ. App.), 200 8. W. Se?; Nagel v. Robins, 9 Wyo. 211, 62 P. 154 (guardian should be given speculative security and charged vvith the amount of the loan) . See Nagle v. Eobins, 9 Wyo. 211, 62 P. 154 (holding loan with stock as security is not an investment in stock). 36. Wyekoff v. Hube, 32 N. J. Eq. 697. 36. Smith v. Smith, 4 Johns. Ch. 281; Line v. Lawder, 122 Ind. 548; Clay V. Clay, 3 Met. (Ky.) 548 ; Boy- ett V. Hurst, 1 Jones Eq. 166 ; Clark V. Garfield, 8 Allen, 427; Gilbert v. Guptil, 34 HI. 112; Lee v. Lee, 55 Ala. 590. But see State v. Morrison, 68 N. C. 162. 37. Harding v. Larned, 4 Allen, 426; Fletcher v. Fletcher, 29 Vt. 98; Covington v. Leak, 65 N. C. 594; Hurdle v. Leath, 63 N. C. 597. 38. Burwell v. Burvell, 78 Va. 574. 39. In re Guardianship of Bane, 120 Cal. 533, 52 P. 852, 65 Am. St. E. 197. 40. Eowe V. Sanford, 74 Mo. App. 191. 41. Fidelity & Deposit Co. of Mary- land V. Freud, 115 Md. 29, 80 A. 603; In re Bates' Guardianship (Okla.), 174 P. 743 (loan to himself cannot be authorized by court) ; Hutson v. Jen- son, 110 "Wis. 26, 85 N. W. 689. 42. Parker v. Wilson, 136 S. W. 981 (stay of judgment granted, 99 Ark. 344, 137, S. W. 926) ; American Bond- ing Co. of Baltimore v. People, 46 Colo. 394, 104 P. 81; Charles v. Witt, 88 Kan. 484, 129 P. 140; Woodard v. Bird, 105 Tenn. 671, 59 S. W. 143. See Nagle v. Eobins, 9 Wyo. 211, 62 P. 154 (where statute as to approval of court is permissive, only the guar- dian is not entitled to refuse a pro- per loan until approval of court is obtained) . 43. In re Schandoney's Estate, 133 § 904r GUAEDIAN AND WAED. 1024: guardian be sanctioned by the court, be is not liable for lose, unlesft it arises from bis subsequent default.** But the aaeent of the court must be in writing and of record ; not given by parol.** The ward has no redress where the estate has suffered no finan- cial loss from an unauthorized loan,** and the unauthorized loan ig good against the borrower.*' § 904. Bank Accounts. While a guardian has a right to deposit funds temporarily in a bank for safe-keeping, and he will not be liable for loss if he exercises ordinary care in the selection of a bank and so earmarks the deposit as to show its trust character ; ** still, if he deposits the money in his individual name, without any designation or indica- tion of his representative character, he is generally liable for its loss notwithstanding that he has not been guilty of any negli- gence.*' Furthermore, he may not make such a deposit as an investment as it is held to be a loan on personal security only and should not be made except by leave of court.^" To protect the guardian against loss of funds deposited in a hank from its failure, the guardian must show sufficient reason for not investing the funds elsewhere,°^ and will not be responsible for Cal. 387, 65 P. 877; In re O'Brien's A tank which has two acoownU of Estate, 80 Neb. 125, 113 N. W. 1001 the same individual, one as an indi- (personal supervision of county judge vidual and the other as guardian, has is not equivalent to order of court, not right to pay the depositor's indi- neither is approval of accounts); vidual checks out of his guardian's Nagle V. Eobins, 9 Wyo. 211, 62 P. account, and is liable to the estate 154. for doing so. United States Fidelity 44. O 'Hara v. Shepherd, 3 Md. Ch. & Guaranty Co. v. TTnited States Nat. 306; Bryant v. Craig, 12 Ala. 354; Bank (Ore.), 157 P. 155, L. B. A. Carlysle v. Carlysle, 10 Md. 440. IffieE, 610. 45. See Newman v. Eeed, 50 Ala. 49. Be Bane, 120 Cal. 533, 53 P. 297. 852. 46. Townsend v. Stern (la. 1904), 50. Me Wood, 159 Cal. 466, 114 P. 99 N. W. 570. 992, 26 L. E. A. (N. S.) 352; Mnr- 47. Wright v. Wright (Tex. Civ. phy v. McCullough, 40 Tex. Civ. App. App.), 155 S. W. 1015. 403, 90 S. W. 69, 36 L. E. A. (N. S.) 48. Ee Wood, 158 Cal. 466, 114 P. 252; United States Fidelity & Guar- 992, 36 L. E. A. (N. S.) 252; Otto v. anty Co. v. Taggart (Tex. Civ. App.), Van Eiper, 164 N. T. 536, 58 N. E. 194 S. W. 482; In re Jiskra's Estate 643, 79 Am. St. E. 673 (affg. 52 N. T. (Wash.), 182 P. 961 (guardian is S. 773, 31 App. Div. 278) (deposit in liable where deposits funds in bank joint names of guardians as an in- instead of investing as ordered), dividual and the sureties is improper) ; 61. In re Grammel, 120 Mich. 487, O'Connor v. Decker (Wis. 1897), 70 79 N. W. 706, 6 Det. Leg. N. 219. N. W. 286 (letters "Guar." after his name are sufficient). 1025 THJS WAED S ESTATE. § 905 loss of a fund deposited temporarily in a bank prudently selected,'* or deposited by order of court/* An order of court ordering the i guardian to deposit the funds of the ward in a certain institution from which they shall be withdrawn only on order of court may be void as infringing on his right of possession.'* A small fund may be properly left in a savings bank at four per cent, where it is so small that no higher rate could have been procured elsewhere."' § 905. Expenditures Allowed. The ward's estate is subject to all liabilities properly incurred in the course of the guardian's judicious management of it.'" The guardian will be granted considerable latitude in the use of » the funds of the estate if he exercises an honest discretion, and expenses incurred in good faith should be allowed although they did not benefit the ward."' Where there is any doubt about the propriety of an expenditure, the prudent guardian will obtain its approval by the court in advance, and statutes frequently provide for such approval before making the expenditure.'' The guardian may be allowed for ex- 52. Corcoran v. Kostrometinoff, 164 F. 685; In re Wood's Estate & Guar- dianship, 159 Cal. 466, 114 P. 992. 53. In re Guardianship of Corcoran, 3 Alaska, 263; Nelson v. Cowling, 89 Ark. 338, 116 S. W. 890; Cohn v. Winslow, 115 Miss. 275, 76 So. 264. 54. De Greyer v. Superior Court of City and County of San Francisco, 117 Cal. 640, 4? P. 983, 59 Am. St. E. 220. See, however. Succession of Weg- mann, 110 La. 930, 34 So. 878 (in peculiar cases court may order funds deposited in its registry). 55. In re Klunck, 68 N. T. S. 629, 33 Misc. 267. See Kerr v. Weathers, 153 P. 866. 56. Burton's Adm'r v. Selph (Ky. 1909), 118 S. W. 286 (only sums ex- pended for ward's benefit); McCor- mick V. Shannon, 111 N. Y. S. 875, 127 App. Div. 745 (buying at fore- closure to protect wards) ; In re Hill's Estate, 250 Pa. 107, 95 A. 426 (not allowed where purpose of pajrments 65 to wards did not appear) ; Anderson V. Steddum (Tex. Civ. App.), 194 8. W. 1132; Buskirk v. Sanders, 70 W. Va. 363, 73 S. E. 937 (only neces- saries) ; Owens v. Mitchell, 38 Tex. 588. As to carriage hire, see Ruble V. Cottrell, 57 Ark. 190. 57. Tegart v. McCaleb, 9 La. Ann. 259; State ex rel. Tygard v. Elliott, 83 Mo. App. 458 (may be allowed for penalties paid for delay in payment of taxes where was no money to pay taxes on time). 58. State v. Dunbar's Estate, 99 Mich. 99, 57 N. W. 1103; Cross v. Eubey (Mo. App.), 206 S. W. 413; Tates V. Watson (Tex. Civ. App.), 187 S. W. 548 ; Davis, v. White (Tex. Civ. App.), 207 S. W. 679. See Win- dleton V. O 'Brien, 68 Mo. App. 675. See Barton v. Bowen (Va.), 27 Gratt. 849 (may be allowed after expenditure if would have been authorized before). Contra, In re Alexander, 79 N. J. Eq. 226, 81 A. 732. § 905 GUAEDIAN AND WAKD. 1026 penses incurred in protecting or obtaining control of the person of the ward/" The guardian will be allowed for costs, attorney's fees and other expenses of litigation properly incurred for the estate,'" but not for expenses unnecessary in the litigation.'^ As the guardian is allowed his costs and expenses in suits on the ward's behalf, so he may charge bills of professional counsel properly paid ; and this too when the charge was fairly occasioned by a contest over his accounts, which he defended ; but he cannot make the estate pay for advice and services rendered on his own account under any colorable pretext.'^ And the primary 59. Bank v. Krell, 176 la. 437, 156 N. W. 858 (expenditures need not be confined to food or clothing actually used by wards) ; In re Pruyne, 73 N. T. S. 859, 68 App. Div. 584. See In re Boyle's Estate, 67 Pa. Super. Ct. 381 (guardian adopting ward allowed for her maintenance at his home). 60. In re Brady, 10 Ida. 366, 79 P. 75 (wUl contest in which wards are interested) ; Luke v. Kettenbach (Ida.) 181 P. 705; In re Tolifaro, 113 la. 747, 84 N. W. 936; Appeal of Parnum, 107 Me. 488, 78 A. 901; Grove v. Reynolds, 100 Mo. App. 56, 71 S. W. 1103; In re Decker, 76 N. T. S. 315, 37 Misc. 527 (attorney's fee for preparing final account) ; Or- der, 102 N. T. S. 211, 117 App. Div. 294, affirmed, In re Tyndall, 190 N. T. 522, 83 N. E. 1133 (attorney's fees based only on what services are worth) ; Title Guaranty & Surety Co. V. Slinkerj 42 Okla. 811, 143 P. 41 (premiums on guardian's bond); Seheib v. Thompson, 23 Utah, 564, 65 P. 499. 61. In re Tolifaro, 113 la. 747, 84 N. W. 936 (attendance of guardian at hearing) ; State ex ret Tygard v. El- liott, 82 Mo. App. 458 (not for ex- penses of non-resident guardian in coming to State to qualify) ; In re Hill's Estate, 250 Pa. 107, 9'5 A. 426. 62. McElhenny's Appeal, 46 Pa. St. 347; Alexander v. Alexander, 8 Ala. 796; Neilson v. Cook, 40 Ala. 498; State V. Poy, 65 N. C. 265 ; Blake v. Pegram, 101 Mass. 592; Voessing v. Voessing, 4 Bedf. 360; Moore v. Shields, 69 N. C. 50; Hunt v. Mal- donado, 89 Cal. 636. The rule in some States is strict that a guardian who is a counsellor cannot charge for pro- fessional services rendered by himself. Morgan v. Hannas, 49 N. Y. 667. But cf. Blake v. Pegram, supra. Where the accounts have become complex and intricate through the guardian's own fault, the cost of stating them eorreetly ought not to be charged to the ward. Eawson v. Corbett et al., 150 ni. 466. A retiring guardian should not be compelled to account for money which his successor may collect equally welL Mattox V. Patterson, 60 la. 434. A guardian who has received money as such cannot escape accounting there- for by setting up that it belongs to some one else than his wards. Humble V. Mebane, 89 N. C. 410. Hia failure to disclose that he has received money for his ward amounts to a conversion thereof. Asher v. State, 88 Ind. 215. He cannot avoid liability to account, if acting as guardian, by denying that he was appointed. Gregory v. Field, 63 Miss. 323. And see as to fraudulent concealment of worthless securities, Slauter v. Favorite, 107 Pnd. 291. Where one kept his ao- counts so imperfectly that it was im- possible to say whether he should re- ceive certain credits as general or spe- cial guardian, they were credited one 1027 THE wabd's estate. S 905 liability for sucli attorneys as he employs is of course his own."* The guardian may be allowed for expenses though he has not actually paid them if there is an arrangement in good faith that he shall do so.'* The fact that expenditures otherwise improper were incurred at the request of the wards is no defence.*" The guardian may be allowed the ward's share of the debts of the estate in which he is an heir.'° Mother who is guardian of female ward may not be allowed for expenses of ward's wedding,'^ but the burial expenses of the mother of the ward may be properly allowed."" The guardian may make payments on the order of an infant ward to her husband if the latter is of full age,** but not if he is under age.'" The guardian will not be allowed for sums expended in trying to protect unauthorized investments,'^ and he will not be allowed for expenses in contesting removal proceedings where they force his resignation.'* He is to be reimbursed for all reasonable and proper expenses incurred by him in the management of his ward's estate. '" Also for his proper advances.'* Interest has been allowed on sums of half to each fund. Smith v. Gum- to his statutory commission. Morgan mere, 39 N. J. Eq. 394. v. Hannas, 49 N. Y. 667. Other G3. §'§ 911, 912. States rule differently; their rule 64. In re Mason, 68 Neb. 779, 94 being that of a fair allowance rather N. W. 990 (attorney's fees). Contra, than a fixed commission. § 375. A In re Plumb, 53 N. T. S. 558, 24 guardian who keeps a store may in Misc. 249, 2 Gibbons, 447. good faith supply the ward's neces- 65. In re Tolifaro, 113 la. 747, 84 saries, and hence charge at customary N. W. 9^6. rates of profit. Moore v. Shields, 69 66. Sims V. Billington, 50 La. Ann. N. C. 50. But this principle is a 968, 24 So. 637. dangerous one to admit far. The 67. Keeney v. Henning, 64 N. J. Eq. guardian of a wealthy insane adult 65, 53 A. 460. ward may fairly claim compensation 68. In re Connolly's Estate, 150 N. for luxuries supplied him, and for T. S. 559, 88 Misc. 405. personal visits and care suitable to 69. State V. Joest, 46 Ind. 233, 235; tho ward 's welfare. May v. May, 109 State V. Parrish, 1 Ind. App. 441, 27 Mass. 252. As to estimating neces- N. E. 652. saries purchased with depreciated 70. State v. Joest, 46 Ind. 233, 235. money, see Phillips v. Towles, 73 Ala. 71. In re Moore, 112 Me. 119, 90 A. 406. The guardian cannot as such 1088. sue his ward for necessaries, having 72. In re Cobb's Estate (Okla.), no property of the ward in possession 166 P. 885. to reimburse him for maintenance. 73. Personal services as a mechanic or McLane v. Curran, 133 Mass. 531. architect are ruled out strictly in some 74. Merkell's Estate, 154 Pa. St. States, "the guardian being restricted 285. § 908 GUAEDIAN AND WAitD. 1028 money necessarily advanced by him to tis ward ; and this seems reasonable.'" Interest may be allowed a guardian on disbursements with an- nual rests, the amounts expended for the previous year deducted and interest computed on the balance up to the next annual rest/* Where the ward was mentally incapacitated for contracting or appointing an agent, the guardian cannot be credited with sums paid to an agent so appointed by the ward, but only for such sums as were shown to have been used for the ward's benefit.''' The guardian cannot be allowed for gifts made by him to the ward.'" § 906. Payment of Debts. It is the guardian's duty to pay all just debts of the ward,"" but he is not to apply property exempt from attachment or execu- tion) in satisfaction of his ward's debts.'* § 907. Continuance in Business. The guardian, of an insane adult ward cannot lawfully continue the ward's business, so as to charge it with losses thereby incurred,** and a ward's property should not be subjected, at the guardian's instance, to the hazards of business, nor should a probate court confer any such authority.^^ But where he does so beneficially, the ward, by acceptance of the benefits after becoming sui juris, may be estopped from objecting.*^ § 908. Liability for Negligence or Fraud. So far as the guardian acts within the scope of his powers he is bound only to the observance of fidelity, and such diligence and prudence as men ordinarily display under like circumstances. 75. Hayward v. Ellis, 13 Pick. 272 ; 78a. Alcon v. Koons, 42 Ind. App. May V. Skinner, 152 Mass. 328. But 537, 82 N. E. 92 ; Anderson v. Sileox, see Evarts v. Nason, 11 Vt. 132. And 82 S. C. 109, 63 S. E. 128 (ward's so interest received on a small balance trousseau) ; State v. Fidelity & De- may stand in lieu of compensation. posit Co. of Maryland (Md.), 104 A. Mattox V. Patterson, 60 la. 434. 278. See Simpson v. Roberts, 205 HI. 76. Abrams v. United States Fi- App. 35 (not for funeral expenses of delity & Guaranty Co., 127 Wis. 579, ward's mother). 106 N. W. 1091, 5 L. E. A. 575, 115 79. Puller v. Wing, 5 Shep. 222. Am. St. E. 1091. See Nelson v. Cowl- 80. Corcoran v. Allen, 11 E. I. 567. ing, 89 Ark. 334, 116 S. W. 890 (in- 81. Michael v. Locke, 80 Mo. 548. terest not allowed where gross neg- And see Bush v. Bush, 33 Kan. 556; lect of duty). Carter -v. Lipsey, 70 Ga. 417; Warren 77. Griffin v. Collins, 125 Ga. 159, v. Union Bank of Eochester, 157 N. 53 S. E. 1004. T. 259, 51 N. E. 1036, 43 L. E. A. 78. Harper v. Payne, 24 Ky. Law 256, 68 Am. St. E. 777. Eep. 2301, 73 S. W. 1123. 82. Hoyt v. Sprague, 103 U. 8. 613. 1029 THE ward's estate, § 909 And in absence of misconduct his acts are liberally regarded like those of any trustee. He is not liable for investments carefully made, which afterwards prove worthless ; nor where he deals with failing debtors prudently under all the circumstances, though good security be not available and a loss finally occurs.'* Nor is he responsible for funds of which he was robbed without his fault.'* But for any fraudulent transaction to which he lends himself he must suffer the consequences.*^ And if by his negligence the estate has suffered loss, he must make good the deficiency.'" What acts amount to fraud or culpable negligence will depend upon oir- cimistances. Ignorance of duty is equivalent to misconduct, where tho ward's interests suffer by it." And a sale of the ward's rights of property at a grossly inadequate price, upon the guardian's own responsibility, may be afterwards set aside at the instance of the ward." Innocent third parties for value are not affected by the guardian's fraud ; and the usual barrier applies as to negotiable securities." But in general, where third parties neglect to make reasonable inquiries as to facts which ought to have raised sus- picion in their minds, they may have to suffer for their own imprudence.®" § 909. Effect of Guardian's Unauthorized Acts. It is a general principle that acts done by a guardian without authority vsdll be protected and will bind the infant, if they turn out eventually beneficial to the latter ; but the guardian does such acts at his own peril. The transaction will perhaps avail as be- tween the guardian and third parties ; but the infant, on arriving at majority, may usually disaffirm it altogether, if not manifestly beneficial in the court's opinion, and require the guardian to place him in statu quo.'^ This risk is restricted, however, to unauthor- ized as well as prejudicial acts ; for no guardian can be an infalli- 83. Barney v. Parsons, 54 Vt. 623; 87. Nicholson's Appeal, 20 Pa. St. Green v. Eoimtree, 88 N. C. 164; La- 50. mar v. Mieou, 112 U. S. 452; § 353. 88. Leonard v. Barnum, 34 Wis. 84. Furman v. Coe, 1 Gaines's Cas. 105. 96; Atkinson v. Whitehead, 66 N. C. 89. See Gum v. Swearingen, 69 Mo. 296. 553; 2 Sehouler, Pers. Prop. 23. 85. McCahan's Appeal, 7 Barr, 56. 90. Gale v. Wells, 12 Barb. 84; 86. 2 Kent, Com. 230; Glover v. Hunter v. Lawrence, 11 Gratt. Ill; Glover, 1 McMull. 153; Eoyer's Ap- Bevis v. Heflin, 63 Ind. 129. peal, 11 Pa. St. 36; Wynn V. Benbury, 91. Maephers. Inf. 339; infra, § 4 Jones Eq. 395; Coggins v. Flythe, 987. 113 N. C. 103. § 910 GUAEDIAK AND WARD, 1030 tie judge of what is beneficial to his ward ; and to make him liable in ordinary cases, beyond the limits of good faith and a sound discretion, would be intolerable. Hence, as judicial control be- comes relaxed, the guardian's imauthorized acts may fairly be considered as lessening in number and importance, save so far as local statutes prescribe the rule, as they frequently do. Where the guardian acts under judicial sanction, what he does in good, faith receives strong protection,"^ and even without a judicial sanc- tion he may do many acts beneficial to his ward in their scope. °^ Unauthorized acts which turn out ill for the ward are not usually protected.^* In States requiring the approval of the court before a guardian can bind his ward's property one doing work under a contract cannot obtain a lien on the property where the contract was exe- cuted without the approval of the court."° § 910. Contracts in General A guardian, it is said, cannot by his general contracts bind the person or estate of his ward.°° Nor can he avoid a beneficial con- tract made by his infant ward ; ®^ nor waive a benefit to which the ward is entitled by decree.'* For anything which he does injuri- ous to the infant is a violation of duty, and the insertion, in a con- tract, of words importing the title " guardian " will not shield the guardian from personal liability. In the language of Chief Justice Parsons: "As an administrator cannot by his promise bind the estate of the intestate, so neither can the guardian by his contract bind the person or estate of his ward." °' But the rule is, after all, a technical one; for the insertion of words showing represen- tative capacity imports that the contract was made as a trustee; the form of the remedy is affected, but not the primary source of 92. See MeElheny v. MuBick, 63 ID. v. Evans, 14 N. H. 343 ; Eeynolda v. 329. Garber-Buick Co., 149 N. W. 985, L. 93. Maclay v. Equitable Co., 152 E. A. 1915C, 362; Aborn v. Janis, V. S. 499; Albert's Appeal, 128 Pa. 113 N. Y. S. 309, 62 Mise. 95 (cider St. 613; SmaU's Estate, 144 Pa. St. affd., 106 N. Y. S. 1115, 121 App. 293. Div. 923; Lee v. Tonsor (Okla.), 161 94. May v. Duke, 61 Ala. 53; Mo- P. 804; Jones v. Johnson (Okla.), Duffie V. Melntyre, 11 8. C. 551. 178 P. 984. 95. Los Angeles County v. Winans, 97. Oliver v. Houdlet, 13 Mass. 237. 13 Cal. App. 334, 109 P. 640. And see Bac. Abr., Guardian (G). 96. In re Manning's Estate, 134 98. Hite v. Hite, 2 Rand. 409. la. 165, 111 N. W. 409'; Jones v. 99. Forster. v. Fuller, 6 Mass. 58. Brewer, 1 Pick. (Mass.) 317; Tenney 1031 THIS VfABD's ESTATE. § 910 liability in the real benesficiary. And on all such contracts, fairly made, the guardian is entitled to reimbursement from his ward'a estate. It is simply meant that the person with whom the guar- dian contracts on behalf of his ward may presume a sufficiency of aBsets. In other words, the guardian's duty is to bring up the ward suitably; and if in the performance of his duty it becomes naeessary for him to enter into contracts, they impose no duty on the ward, but bind the guardian personally and alone. If one acting in a trust capacity could claim exemption from all personal liability, on the ground that there was none of the ward's property left in his hands for payment, he might abuse his privileges. Hia knowledge of the exact state of the trust fund and his power of management would give him an immense advantage over the other oontracting party. Hence the propriety of the rule that guardians are personally bound on their contracts, in dealing with others on the ward's behalf, while in turn they get a recompense from the estate by charging their expenses to the ward'a account, to be passed upon by the court; in which sense of a reimbursement alone, whether in law or equity, can it be said that the ward is liable, since the guardian can put no contract obligations upon his ward- The insertion of words implying a trust becomes, there- fore, essential in determining whether a contract was intentionally made by the guardian on his own personal account. If the guar- dian contracts a debt for his ward's benefit, he becomes, in this sense, personally liable; and this, even though the debt be for necessaries.^ Where, however, the guardian's contract with the creditor shows an express limitation of his liability, by mutual assent, to the assets of the ward in the guardian's hands, it would appear tliat the guardian incurs no personal liability beyond such 1. Bimms v. Norris, 5 Ala. 42 ; Eol- supplies. It was held that though A. lins v. Marsh, 128 Mass. 166. And resigned after his appointment and see infra, § 911, as to the ward's a new guardian, was appointed, A. 's necessaries. Sperry v. Fanning, 80 personal liability under the contract 111. 371. A guardian should take had not been terminated. If a guar- heed what contract he makes, and dian promises to pay a debt of his -provide for terminating it properly. ward, he will become personally bound, In Mass. General Hospital v. Fair- though expressly contracting as guar- banks, 133 Mass. 414, A., in antici- dian; and the creditor's discharge of pation of being appointed guardian the ward is sufficient consideration. ^f B. an insane person, promised to Kingsbury v. Powers, 131 111. 182. pay an asylum for B. 's board and § 911 GUAEDIAN AND WAED. 1032 assets/ though he cannot thereby bind the ward's person or estate absolutely.' The guardian in some States may, when proper to protect assets, make binding agreements for the benefit of the estate of the ward * with the approval of the court," and the ward will on coming of age be bound by a contract signed for him by the guardian acting under authority of the court." The guardian cannot bind the estate by any other contract than one expressly allowed by law.'' § 911. Contracts for Necessaries. For necessaries of his ward, supplied by the guardian's order and on his credit, the guardian then is liable; and this on the principle that the guardian has made a contract.* A guardian, it is true, cannot bind his infant ward, or the latter's estate, by a contract, even for necessaries.' But he is of course entitled to a proper reimbursement for the necessaries thus supplied by himself from the ward's estate. So, where he advances money for the ward's maintenance and education.^" But if the income of the ward's estate is ample for payment of the necessaries supplied him, the creditors may, by a proper course of procedure, have it subjected to the satisfaction of their just claims. And this, too, it would appear, notwithstanding any personal undertaking on the guardian's part.'^ l^Tot even funds derived from a minor's pension, granted under the United States laws, are exempt from liability for the ward's support. ^^ On the 2. Sperry v. Fanning, 80 HI. 371. Comeron & Co. v. Tarby (Okla.), 175 S. Eollina v. Marsh, 138 Mass. 116 ; P. 206. See Lenow v. Arlington, 111 Beading V. "Wilson, 38 N. J. Eq. 446. Tenn. 720, 69 S. W. 314; Andrus v. 4. Hanover Nat. Bank v. Cocke, 127 Blazzard, 23 Utah, 233, 63 P. 888, 54 N. C. 467, 37 S. E. 507 (guardian may L. E. A. 354. make binding agreement to loan 8. State v. Eoehe, 91 Ind. 406 ; Tur- credit to borrow money to avoid ex- ner v. Flagg, 6 Ind. App. 563, 33 N. pense in settlement of insolvent bank E. 1104; Shepard v. Hanson, 9 N. T). in which ward is stockholder) ; LeRoy 249, 83 N. W. 20. V. Jacobosky, 136 N. C. 443, 48 S. E. 9. Eeading v. Wilson, 38 N. J. Eq. 796, 67 L. E. A. 977 (contract with 446. trustee of insolvent bank in which lO.Smith's Appeal, 30 Pa. St. 397; ward is stockholder to save expense) ; Eollins v. Marsh, 128 Mass. 116; in- Stone V. Ellis (Tex. Civ. App. 1897), fra, ch. 6. 40 S. W. 1077. 11. Eamum v. Frost, 17 Gratt. 398; 5. Smoot V. Eichards, 16 Tex. Civ. "Walker v. Browne, 3 Bush, 686. Suit App. 662, 39^ S. W. 133. on the probate bond by permission of 6. In re Barker's Estate, 113 la. court is the common remedy in many 584, 85 N. "W. 786. States. Cole v. Eaton, 8 Cush. 587. 7. Burke & Williams v. MacKenzie, 12. Welch v. Burris, 29 la. 186; 124 Ga. 248, 52 S. E. 653; William Brown's Appeal, 112 Pa. St. 18. 1033 THE ward's estate. § 911 ward's own contract for necessaries, the guardian is not personally liable.^* And it would appear from some cases that his knowledge of the ward's contract and failure to dissent will not suffice ; or, in other words, that an express contract should be shown to charge the guardian personally. Yet such a contract of the ward may be ratified by the words or acts of a guardian; and we presume that he may generally be held bound on a contract shown by strong implication to have existed between him and the party furnishing education or support.^* Claims for goods furnished to a ward at the request of the guardian should be made and action brought against the guardian personally and not against the ward's estate." As a rule the guardian, if custodian of the ward's person, has the same right to judge as to what are necessaries, according to the estate and social position of his ward, that a parent would have for his own child ;^° and others who supply the minor are bound to take heed acordingly,^'' and the guardian is not liable for neces- saries furnished the ward unless expressly authorized by him.^' The ward is not to be judge of his own necessaries ; it is the guar- dian rather, or the court.^' It is held that the guardian appointed in one State may sue a foreign guardian for the support and edu- cation of wards left with the former by consent of the latter guardian.^" So, wherever a town is liable for the support of a ward as a pauper, his guardian may claim reimbursement for necessary expenses incurred after the ward's property has been exhausted.^^ A guardian is presumed to furnish all necessaries for his infant ward, and a stranger who furnishes them must in general contract with the guardian himself.^^ But where the guar- dian makes purchases, the party furnishing the goods is not bound to see that payment is made from the ward's income. This risk must be run by the guardian himself, for the facts are within his 13. Baird v. Steadman, 39 Fla. 40, 16. Nicholson v. Spencer, 11 Ga. 21. So. 5T2. 607; Kraker v. Eyrum, 13 Eich. 163. 14. Tucker v. McKee, 1 Bailey, 344 ; 17. McKanna v. Merry, 61 111. 177. Hargrove v. Webb, 27 6a. 172 ; Oliver 18. Pinnell v. Hinkle, 54 W. Va. V. Houdlet, 13 Mass. 237. 119, 46 S. E. 171. 15. Fidelity & Deposit Co. of Mary- 19. Matter of Plumb, 52 Hun, 119. land V. M. Eich & Bros., 122 Ga. 506, 20 Spring v. Woodworth, 2 Allen, 50 8. B. 338; Hall v. Ferguson, 24 206. Ind. App. 532, 57 N. E. 153; Murphy 21. Fiak v. Lincoln, 19 Pick. 473. V. Holmes, 84 N. T. S. 806, 87 App. See Preble v. Longfellow, 48 Me. 279. Div. 366, 14 N. T. Ann. Gas. 71. 22. State v. Cook, 12 Ired. 67 ; Roy- ston V. Eoyston, 29 Ga. 82. § 912 GUAEDIABT AND VfABD. 1034 own peculiar knowledge.*' And the usual principle is, where the guardian has contracted for his ward's support without express restriction, that the creditor holds the guardian liable individually, relying upon the latter's promise, while the guardian may reim- burse himseK out of the ward's estate so far as justice permits.** § 912. Contracts for Services to Ward or Estate. Under suitable circumstances a guardian may employ attomeye- at-law or other agents, and charge their compensation in his ac- counts.*" A contract by a guardian for services for the estate made without authority of court is invalid as against the estate,** although the value of such services may be allowed against the estate in proper proceedings in equity or the probate court ; *' but \ a contract for services will in any event bind only the estate and not the wards.** A personal judgment only against the guardian will be allowed in most States.*® The guardian may when necessary employ a physician totxiare for the ward and pay for his services out of the principal,*" and 23. Broadus v. Eosson, 3 Leigh, 12 ; Hutchinson v. Hutchinson, Iff Vt. 437. 24. Eollins v. Marsh, 128 Mass. 116; Rhodes v. Frazier's Estate (Mo. App.), 204 S. W. 547; Gallagher v. McBride, 66 N. J. Law, 49 A. 583. 25. Ee Minn, 31 N. J. Bq. 640; supra, § 343. A natural tutrix of minors, duly appointed, is bound to prosecute a legal claim on their be- half, and her contract with counsel concerning compensation for service is within her powers. Taylor v. Bemiss, 110 U. S. 42. That an em- 1 ployed attorney must look to the guar- • dian for his compensation, see Row- ing V. Moran, 5 Dem. 56. The guardian may give power of attorney to collect and receipt for debts. Forbes v. Eeynard, 98 N. T. S. 710, 113 App. Div. 306. 26. Morse v. Hinckley, 124 Cal. 154, 56 P. 896; McKee v. Hunt, 142 Cal. 526, 77 P. 1103 ; Burke & Williams v. MaeKenzie, 124 Ga. 248, 52 S. E. 653 (contract for improvement of ward's real estate) ; In re Kitchen (Ind. App. 1909), 89 N. E. 375; Williamfl V. Bonner, 79 Miss. 664, 31 So. 207; Kersey v. O'Day, 173 Mo. 560, 73 S. W. 481. 27. Morse v. Hinckley, 124 Cal. 154, 56 P. S96; Irvine v. Stevenson (Ky.),, 209 S. W. 7 (may employ more than one attorney when necessary) ; Suc- cession of Hanna, 135 La. 1043, 66 So. 355; Everson v. Hum, 89 Neb.. 716, 131 N. W. 1130 ; PameU v. Wad- lington, 42 Okla. 363, 139 P. 121. See, however, Payne v. Eech, 6 Ohio App. 327. An improvident contract of a guardian as to the compensation of attorneys employed to represent their interest will not be enforced; the at- torneys being limited to a reasonable fee. Wheeler v. James & James (Ky. 1909), 120 S. W. 350. 28. Wilhelm v. Hendrick, 167 Ky.. 219, 180 S. W. 516. 29. Baker v. Groves, 1 Ind. App. 522, 27 N. E. 640; Weber v. Werner, 122 N. Y. 8. 9^43, 138 App. Div. 127. 80. Williams v. Bonner, 79 Misi 664, 31 So. 207. 1035 THE wabd's estate. § 9 is payments made for services in caring for the ward's real estate may be credited to tlie guardian,** but not where the services were unnecessary.** Where the guardian delegates his duties to another he is liable for his actions.** The ward will not be allowed to manage his own affairs unless his capacity to do so is shown by a preponderance of the proof.** The guardian of an insane person may, without obtaining authority from the court, hire competent help to take care of the ward's invalid wife. He is thus discharging the personal obliga- tions of his ward, performing an act of no unusual character. It is true as a general rule that the guardian has no authority to bind the estate of his ward by contract, but that rule does not apply to acts in performance of duties and obligations of the ward not of an unusual or extraordinary character, and which do not bind or attempt to bind the ward beyond his legal incompetency to act for himself.*' § 913. Promissory Notes. Notes payable to guardian. — The title to promissory notes made payable to the guardian is prima facie in him. And this is true though the ward come of age pending a suit on such notes, or other- wise the guardian's authority has ceased. Hence he may maintain suit, unless the defendant can show that it has been transferred to the successor, or otherwise disprove title.** A guardian may assign a note taken in his own name,*' but a statute forbidding a sale of property without authority of the court will prevent the guardian from transferring a note without such authority.** 31 Sears v. Collie, 148 Ky. 444, 146 34. In. re Lee, 105 La. 254, S9 So. 8. W. 1117; State ex rel. Tygard v. 703. Elliott, 82 Mo. App. 458; McCoy v. 35. Se Mores (Minn.), 160 N. W. Lane, 66 Neb. 847, 92 N. W. 1010; 187, L. R. A. 1917B, 676. In re Mason, 68 Neb. 779, 94 N. W. 36. Chambles t. Vick, 34 Miss. 109; 990. Fountain v. Anderson, 33 Ga. 372; 32. In re Binghamton Trust Co., 83 King v. Seals, 45 Ala. 415; Gard v. N. T. S. 1068, 87 App. Div. 26 (agent Neff, 39 Ohio St. 607. for real estate not needed) ; Vaughn 37. Eehols v. Speake, 64 So. 306 ; V. Tealey (Tenn. Ch. App. 1900), 63 Brewster v. Seeger, 173 Mass. 281, 53 S. W. 236; Moore V. Bannerman (Tex. N. E. 814; Jenkins v. Sherman, 77 Civ. App.), 45 S. W. 825 (attorney Miss. 884, 28 So. 726. not needed). 38. Browne v. Fidelity & Deposit 33. Eittenberry v. Wharton, 176 Co. of Maryland, 98 Tex. 55, 80 S. W. Ala. 390, 58 So. 293. 593. See Merchants' & Clerks' Sav. § 913 GUAKDIAN AND WAED. 1036 The guardian may, however, indorse over such note on the cessation of his authority; in which case the person in lawful possession should sue. He may thus assign over a note after the ward's majority for money due the ward, and give the assignee full power to collect, where the ward interposes no valid objection.^* So, too, he may, after his ward's death, transfer a note for the ward's money, payable to the ward or bearer, to a third person for collec- tion. ■*" But a note which evidences a debt due the guardian in his own individual capacity is not properly a part of the ward's assets; and a successor in the trust who accepts such a note from his predecessor is held liable as for a breach of his trust where the note proves uncollectible.*^ If the guardian settled with his ward whatever was due on a note taken by him he may enforce payment for his own benefit.*^ And where a guardian, on surrendering his trust, transfers to his successor a debt due the ward, this is suffi- cient consideration to support the promise of the latter to pay the former guardian's debt.*' Notes payable iy guardian. — The ward's estate may be charged with a note issued on authority,** or where the transaction benefits the ward.*' But the ward cannot be made liable after majority on a note given by her guardian without authority where she re- ceived no benefit after reaching her majority from the funds realized.*® The promise of a guardian to pay his ward's debts is not col- lateral, within the statute of frauds ; and therefore it need not be expressed in writing.*' An indebtedness of the guardian of a minor for money borrowed and used for the benefit of his ward is not a good consideration for the execution of a note therefor by his successor.*' Bank Co. v. Schirk, S7 Ohio Cir Ct. 44. Scottish-American Mortgage E. 125 (where guardian has no an- Co. v. Ogden, 49 La. Ann. 8, 21 So. thority to sell note he can confer 116. none). 45. Forster v. Fuller, 6 Mass. 58, 4 39. Hippee v. Pond, 77 la. 235 ; Am. Dec. 87 ; Wallis v. Neale, 43 W. Brewster v. Seeger, 173 Mass. 281, 53 Va. 529, 27 S. E. 227. N. E. 814. 46. "Wright v. Perry, 129 Cal. 613, 40. Fletcher v. Fletcher, 29' Vt. 98. 62 P. 176. See Moore v. Metz, 24 Ky. 41. State V. Greensdale, 106 Ind. Law, 1729, 72 S. "W. 29^4. 364, and cases cited. 47. Eoche v. Chaplin, 1 Bailey, 419. 42. Wright v. Eobinson, 94 Ala. 479. 48. Wright v. Perry, 129 Cal. 61 t, 43. French v. Thompson, 6 Vt. 54; 62 P. 176. of. Sharman t. Jackson, 47 Ala. .329. 1037 THE wabd's estate. § 915 § 914, Loans to Guardian. The ward's estate will not be usually liable for money borrowed by the guardian without an order of court,*' but the guardian is personally liable for moneys advanced to him.°° § 915. Management of Ward's Real Estate in Detail. The guardian has the management and control of his ward's real eetate so long as his general authority lasts. It is his duty to collect the rents for the benefit of his ward, in which connection he may, according to custom, employ a real-estate agent or collector,'^ or he may be allowed an agent's commission.'"' It is his duty not only to collect the rents but to preserve the property.^* He may avow for damage feasant, sue for non-pay- ment of rent, and bring trespass and ejectment in his own name. This was the common-law rule as to guardians in socage, and it still applies to testamentary, chancery, and perhaps to probate guardians. The recognized principle is that such guardians have an authority coupled with an interest, and not a bare authority,"* and may prosecute and settle in good faith a claim for trespass on the ward's lands,°° or collect the purchase price of land sold."' A guardian makes himself personally liable where he permits others to negligently collect the rents, or occupies the premises himself, 49. Wood V. Truax, 39 Mich. 628; does not carry with it the control of Buie's Estate v. White, 94 Mo. App. his real estate. Atwood v. Frost, 57 367, 68 S. W. 101. Contra, In re Man- Mich. 229, 23 N. W. 790. ning's Estate, 134 la. 165, 11 N. W. 52. (1906) Ohlmann v. Wirth, 9T 409* (estate liable for money used for S. W. 760, 30 Ky. Law Eep. 206 ( judg- beneiSt of estate though money bor- ment modified on rehearing, Ohlman rowed without authority). See Scot- v. Same (1907), 30 Ky. Law Eep. 1372, tish-American Co. v. Ogden, 49 La. 101 S. W. 295 (collecting rents). Ann. 8, 21 So. 116 (authority of fam- 53. Walker v. Thompson, 145 Ky. ily meeting is sufficient) ; State ex ret. 597, 140 S. W. 1045. Tygard v. EUiott, 82 Mo. App. 458; 54. Shaw v. Shaw, Vem. & Scriv. In re Bartsch, 113 N. T. S. 286, 60 607; Bacon v. Taylor, Kirby, 368; Mise. 272. 2 Kent, Com. 228; Torry v. Black, 50. Elson V. Spraker, 100 Ind. 374; 58 N. T. 185; Pond v. Curtiss, 7 Bell v. Dingwell, 91 Neb. 699, 136 N. Wend. 45; HufC v. Walker, 1 Cart. W. 1128. 19^. And see O'Hara v. Shepherd, 51. Eadeu v. Swepston, 64 Ark. 477, 3 Md. Ch. 306. But such suits can- 43 S. W. 39'3 (guardian is charged not in Illinois be bought by a probate with rents only from time property or statute guardian, and under local was turned over to him by the ad- statutes different rules apply. Mul ministrator) ; Be Flinn, 31 N. J. Eq. ler v. Benner, 69 IQ. 108 ; Wallis v. 640. See GrifBn v. Collins, 125 Ga. Bardwell, 126 Mass. 366. 159, 53 S. E. 1004 (liability for 65. Tory v. Black, 58 N. T. 185, rents). 65 Barb. 414. Guardianship of a minor 't person 66. Davidson v. I. M. Davidson Beal § 915 GtTAEDIAW AND WABD, 1038 or suffers the premises to remain unoccupied, or wilfully or care- lessly permits others to occupy them to the ward's detriment ; " and in the exercise of ordinary husinesa discretion and subject to the usual rules of agency he is liable for his ward's rents which were or should have been collected."' He is therefore liable where he allows a squatter to perfect title to the ward's property not onJy for the loss of rents but also for the loss of the principal."' The guardian may grant an easement in his ward's lands; but it is of no avail beyond the limit of his guardianship,'" and he may not encumber it with covenants restricting its use.°^ He may authorize the cutting of standing timber, and allow others to carry it away,^'' though not so as to authorize a waste of the corpus.^' But his license should be given in all cases for his ward's benefit, and so with the receipt of damages for another's trespass.** And if trees are cut and carried away by his permission, so that trespass cannot be maintained, he must make compensation to the ward." Guardians may also institute proceedings for partition. Such proceedings, in England, should be by bill in equity.'* The guardian may make partition of the lands among the in- fants which will be sustained if fair.*' Estate & Investment Co., 326 Mo. 1, to dedicate lands to the public for 125 S. W. 1143 (cannot receipt for streets, &c., see Indianapolis v. Kings- pnrchase price when not received). bury, 101 Ind. 200. He cannot waive 57. Wills's Appeal, 22 Pa. St. 325; his ward's homestead rights. Eatcliff, Clark V. Bumside, 15 111. 63; Hughes' Guardian v. Davis et al., 64 la. 467. Appeal, 53 Pa. St. 500; Spelman v. 61. Curry v. Keil, 46 N. Y. S. 495, Terry, 74 N. Y. 448. 19 App. Div. 375 ; Day v. Forest City 58. Peale v .Thurman, 77 Va. 753; Eailway, 27 Ohio Cir. Ct. K. 60. See Coggins V. Plythe, 113 N. C. 103. He In re Keames, 1 Pa. 326 (guardian cannot give the cMld's rents or use has no authority to build addition); and occupation without consideration Windon v. Stewart, 43 W. Va. 711, even to the child's parent. Cheney v. 28 S. B. 776 (after partition). Eoodhouse, 135 HI. 257; Matter of 62. Ponbl. Eq. Tr. 82, n.; Thomp- Brown, 76 Hun, 186. son v. Boardman, 1 Vt. 367 ; Bond v. 59. Short V. Mathis, 107 Ga. 807, Lockwood, 33 HI. 212. SeeBuskirkv. 33 S. E. 694. Sanders, 70 W. Va. 363, 73 S. E. 937. 60. Watkins v. Peck, 13 N. H. 360; 63. Torry v. Black, 58 N. Y. 185. Johnson v. Carter, 16 Mass. 443. tTn- 64. Torry v. Black, 58 N. Y. 556. der Ohio statutes, a guardian cannot 65. Truss v. Old, 6 Eand. 556. grant a right of way thorugh land 66. Maephers. Inf. 340. owned by his wards without authority 67. Hunt v. Eabitoay, 125 Mich, from the probate court. State v. 137, 84 N. W. 59, 7 Det. Leg. N. 447. Hamilton County, 39 Ohio St. 58. See Shiner v. Shiner, 14 Tex. Civ. And see Indiana E. v. Brittingham, App. 489, 15 Tex. Civ. App. 666, 40 98 Ind. 294. As to his authority act- S. W. 439 (guardian cannot represent iug under orders of a competent court devisees on partition). 1039 THE waed'b estate. § 917 Title by adverse possession may be quieted by suit by the guardian of an insane person.'* § 916. Deeds of Property. From what has been already said, it appears clear that the guardian may execute all the deeds and other writings necessary to the fulfilment of his trust. But such instruments should be signed in the name of his ward.*" On the same principle that agents and trustees are personally bound when they exceed their authority, a guardian makes himself personally liable for stipula- tions which he has no right to insert in a deed, and for authorized covenants, so badly worded that they fail to bind the ward's estate ; but not, it would appear, for implied covenants merely.'" Where a married woman has executed a deed as guardian, it would seem, on principle, that the joinder of her husband is unnecessary.'* Guardians may assign dower. And it seems that the guardian's assignment will bind the heir, although Blackstone and Fitzherbert state the law otherwise.'^ The deed of a married woman, guar- dian of infants, in such capacity, does not convey her right of dower.'* § 917. Repairs and Insurance. A guardian having the means should with due prudence insure buildings, pay taxes and assessments on his ward's lands, and keep the premises in tenantable condition.'* But as our next chapter 68. Freeman v. Pnnk, 85 Kan. 473, less the ward become of age before 117 P. 1024, 46 I.. E. A. (N. S.) 487. the sale. Shurtleff v. Kile, 140 Mass. 89. Hunter v. Daehwood, 2 Edw. 213. See Strang v. Burris et at., 61 Ch. 415. la. 375. See Eobinaon v. Hersey, 60 70. Whiting v. Dewey, 15 Pick. 438 ; Me. 225. Webster v. Conly, 46 HI. 13. The guardian will he allowed for 71. Palmer v. Oakley, 3 Dong. 433. insurance paid on the ward's real An infant's guardian may accept de- estate. Sims v. Billington, 50 La. livery of a deed of conveyance to his Ann. 968, 24 So. 637 ; Monaghan v. ward. Barney v. Seeley, 38 Wis. 381. Agricultural Fire Ins. Co., 53 Mich. 72. 2 Bl. Com. 136 ; Fitzh. N. B. 238, 18 N. W. 797 ; Garvey v. Owens, 348 ; 1 Washb. Eeal Prop. 236 ; Jones 12 N. Y. Supp. 349, 58 Hun, 609. v. Brewer, 1 Pick. 314; Young v. Or taxes. State ex rel. Tygard v. Tarbell, 37 Me. 509; Curtis v. Hobart, Elliott, 82 Mo. App. 458 (though paid 41 Me. 230 ; Boyers v. Newbanks, 2 to wrong ofScer) ; In re Bodine, 134 Ind. 388 ; Clark v. Bumside, 15 111. N. Y. S. 406, 74 Misc. 498 ; Garvey v. 62. Owens, 13 N. Y. Supp. 349 ; Savage v. 78. Jones v. Hollopeter, 10 S. & E. City of Buffalo, 59 Hun, 609 ; Bnrgert 326. V- Caroline, 31 Wash. 62, 71 P. 734, 96 74. For loss imprudently caused by Am. St. E. 889. See In re Pruyne, 73 a tax sale the guardian is liable, nn- N. Y. 8. 859, 68 App. Div. 584. § 918 GUARDIAN AND WARD. 1040 will show, his power at common law over the ward's real estate is closely circumscribed, and he cannot build or make expensive per- manent improvements without a previous order from a court of equity, which is in the absence of statute to be construed strictly." And where he advances money for such purposes, without first obtaining an order, it would appear that he is without a remedy.'* But the court will sometimes protect such expenditures, on the ground that the ward has received a benefit thereby ; '''' and this seems the more reasonable doctrine, though not clearly recognized in this country aside from express legislation.'* Authority granted to expend a certain sum for this purpose is held no authority to exceed that sum, though it should prove inadequate ; " but a liberal decree under a liberal statute is construed otherwise. "' Nor has the builder any lien upon the ward's real estate for such excess.*' A guardian's stipulation, in his lease of the ward's lands, to pay for improvements, will not bind the ward.*^ Nor can a guardian's joinder in highway petitions to cover ill^al acts.*° § 918. Lease. A guardian may ordinarily lease the ward's land without special order of the court,** unless by statute a special order is required.**^ Or repairs or improvement of real 76. Eassard v. Bowe, 11 Barb. 22; estate. Buie 's Estate v. White, 94 Bellinger t. Shafer, 2 Sandf. Ch. 293. Mo. App. 367, 68 S. W. 101; Garvey 77. See Maephers. Inf. 295; 1 Atk. V. Owens, 12 N. T. Supp. 349, 58 489; Hood v. Bridport, 11 E. L. & Eq. Hin. 609 ; Eramlett v. Mathis, 71 S. 271 ; Jackson v. Jackson, 1 Gratt. 143 ; C. 123, 50 S. B. 644 (measure of al- Bent & Co. v. Burnett, 90 Ky. 600. lowance for improvements is not 78. Cheney, v. Eoodhouse, 135 111. amount erpended but increase in 257, recognizes this doctrine, value of property) ; Sutton v. Sutton 79. Snodgrass's Appeal, 37 Pa. St. (Tenn. Ch. App. 1900), 58 S. W. 891; 377. Nagle V. Eobins, 9 Wyo. 211, 62 P. 80. May v. Skinner, 149 Mass. 375. 154. See Hickey v. Dixon, 85 N. T. 81. Guy v. Du Uprey, 16 Cal. 195. S. 551, 42 Misc. 4 ; In re Smith, 89 82. Barrett v. Cocke, 12 Heisk. 566. N. T. S. 639, 97 App. Div. 157 (no 83. Payne v. Stone, 7 S. & M. 367. allowance for unnecessary improve- 84. Indian Land & Trust Co. v. ments) ; Wallis v. Neale, 43 W. Va. Shoenfelt, 5 Ind. T. 41, 79 S. W. 134; 529, 27 S. E. 227 (not where tenant Potter v. Eedmon 's Guardian, 123 Ky. should have made the repairs). 400, 96 8. W. 529, 29 Ky. Law Eep. Or for incumbrances on real estate. 840 ; Cumberland Pipe Line Co. v. Switzer v. Switzer, 57 N. J. Eq. 421, Howard, 30 Ky. Law Eep. 1179, 100 41 A. 486 ; American Surety Co. of S. W. 270 ; Perry v. Perry, 127 N. C. New York V. Sperry, 171 111. App. 56. 23, 37 S. E. 71; Eogers v. Harris 75. Payne v. Stone, 7 S. & M. 367; (Tex. Civ. App.), 171 S. W. 809. Miller's Estate, 1 Pa. St. 326. And 85 Gaines v. Gaines, 116 Ark. 508, see Powell v. North, 3 Ind. 392 ; Lane 173 S. W. 410 (confirmation by court V. Taylor, 40 Ind. 495. required) ; Gridley v. Wood, 206 m. 1041 THE WAED S ESTATE. § 918 But his demise cannot last for a longer period than the law allows for the csontinuance of his trust. And it will determine upon the ward's death in any event. A lease made by a guardian, extend- ing beyond the minority of his ward, was once considered void; but the modem rule treats such leases as void only for the excess at the election of the ward ; °* but statutes in some States have authorized mining or oil and gas leases for a period beyond the term of the guardianship on the groimd that such extended time may be necessary for the proper development of the property.*^ A lease by a guardian for oil and gas mining purposes is not a " conveyance of real estate " within the purview of a statute pro- viding machinery for obtaining a license to sell real estate.'' The same principles apply to guardians of insane persons and spend- thrifts. And the rule embraces assignments of the ward's leases." App. 505; Indian Land & Trust Co. V. Shoenfelt, 5 Ind. T. 41, 79 S. W. 134; Charles v. Witt, 88 Kan. 484, 129 P. 140; Daniels v. Charles, 172 Ky. 238, 189 S. W. 192 (mining lease not an ordinary use) ; Fisher v. Mc- Keemie, 43 OUa. 577, 143 P. 850; "Windon v. Stewart, 43 "W. Va. 711, 28 B. E. 776; Wilson v. Toust, 43 W. Va. 826, 28 S. E. 781, 39 L. E. A. 292; Haskell v. Sutton, 53 W. Va. 206, 44 S. E. 533 (oil or gas). See In . re Berryhill's Estate, 7 Ind. T. 593, 601, 104 S. W. 847, 850. See McCoy V. Ferguson, 172 Ky. 235, 189 S. W. 191. See Globe Soap Co. y. Louisville & N. Ey., 27 Ohio Cir. Ct. E. 759 (agree- ment to renew held unauthorized). 86. Bac. Abr., Leases, I; 2 Kent, Com. 228; 1 Washb., Eeal Prop. 307; Eex V. Oakley, 10 East, 494 ; Putnam V. Eitehie, 6 Paige, 390; Field v. Bchieffelin, 7 Johns. Ch. 150; People V. IngersoU, 20 Hun, 316; Eiehardson V. Eiehardson, 49 Mo. 29. See sta- tute restriction in MuUer v. Benner, 69 HI. 108; Bates, Guardian v. Dun- ham, 58 la. 308; Bent & Co. v. Bar- nett, 90 Ky. 600; Bettes v. Brower, 184 F. 342; Jackson v. O'Eorke, 71 Neb. 418, 98 N. W. 1068; Huston v. Cobleigh, 29 Okla. 793, 119 P. 416 (unless authorized by court) ; Max- 66 well V. Urban, 22 Tex. Civ. App. 565, 55 S. W. 1124 (lease expires with death of guardian). 87. Mallen v. Euth Oil Co., 231 F. 845, 146 C. C. A. 41, 230 F. 497 (by statute lease of oil and gas lands may bind ward on majority) ; Lawrence E. Tiemey Coal Co. v. Smith's Guardian (Ky.), 205 S. W. 051, 203 S. W. 731 (statute authorizing lease beyond ma- jority is unconstitutional; quaere as to oil and gas leases) ; Cabin Valley Mining Co. v. Hall, 155 P. 570 (lease extending beyond minority may be authorized by court) ; Hoyt t. Pixico (Okla.), 175 P. 517 (oil and gas lease beyond majority of ward ap- proved) . At common, law a guardian of a minor had no authority to make a lease beyond the term of the minority, but under proper statutes such a lease may be authorized by the court. In the case of oil and gas leases, where time is necessary for the development of the porperty the minor's estate is not injured but is benefited by such a lease. Cabin Valley Mining Co. v. HaU (Okla.), 155 P. 570, L. B. A. 1916F, 493. 88. Duff V. Keaton, 33 Okla. 92, 124 P. 291, 43 L. E. A. (N. 8.) 472. 89. Eo3s T. Gill, 4 Call, 250. § 919 GtTAEDIAN AND WAED. 1042 The guardian must not lease imprudently, nor so as to sacrifice his ward's interests for the benefit of others.®" The father, ae natural guardian, cannot lease the land of his child ; nor can the mother; nor can any mere custodian of the person."^ So, too, guardians may take premises on lease. And though the words "A. and B., guardians " of certain minors, are used in a lease, the guardians are personally hound to the lessor to pay the rent.** The guardian's power to lease extends only to usufruct, and not to exhaustion of the corpus.^^ In the exercise of due prudence he may let out his ward's lands for raising a crop on shares.'* The guardian cannot, however, agree to a lien on the improve- ments made on the premises on the expiration of the lease,*^ and a natural guardian who has never been appointed by the probate court cannot lease."" The burden rests on one attacking a lease.*' § 919. Mortgage or Pledge. Mortgage or Pledge by Guardian. — The guardian's power to borrow money on a mortgage of his ward's lands, and to create liens upon it generally, is regarded with very little favor. He could hardly make the mortgage operate beyond the minority of his ward, at any rate, if the ward, on reaching majority, elected to disaffirm it ; and his only safe course would be to secure the pre- vious permission of the court; which American statutes in these days generally permit to be done on special proceedings.** 90. Knothe v. Kaiser, 5 Thomp. & C. 98. Merritt v. Simpson, 41 III. Ml; 4; Thaekray's Appeal, 75 Pa. St. 132. Lovelace v. Smith, 39 6a. 130; Wood 91. Anderson v. Darby, 1 N. & McC. v. Truax, 39 Mich. 628 ; Edwards v. 369; Magruder v. Peter, 4 Gill & Taliafero, 34 Mich. 13. And see next Johns. 323; Boss v. Cobb, 9 Yerg. chapter. Power to sell and convey, 463. See Drury v. Conner, 1 Har. & under a trust does not include power G. 230. to mortgage. Tyson v. Latrobe, 43 92. Hannen v. Ewalt, 18 Pa. St. 9. Md. 325. As to assigning a mortgage, See Snook v. Sutton, 5 Halst. 133. see next section. Where a statute 93. Thus, a guardian cannot lease requires (as in case of a land war- oU or mineral lands for the purpose rant) a particular authority to be of working out the product. Stough- obtained for a transfer of land, one ton's Appeal, 88 Pa. St. 198. who purchases without ascertaining 94. Weldou v. Little, 53 Mich. 1. that it has been pursued, acts at his 95. Hughes v. Kershow, 42 Colo. peril. Mack v. Brammer, 28 Ohio 210, 93 P. 1116. St. 508. The Illinois constitution 98. Capps V. Hensley, 23 Okla. 311, and statutes confer large pow- 100 P. 515; Pilgrim v. Mcintosh, ers on the comity courts as to grant- 7 Ind. T. 623, 104 S. W. 858. ing leave to mortgage, and a mort- 87. Norton v. Stroud State Bank, gage may be authorized to secure a 17 Okla. 295, 87 P. 848. loan obtained in order to make im- 1043 THE WAliX) S ESTATE. § 919 The guardian cau mortgage the ward's property only as author- ized by statute,'" and for debts properly contracted/ but may pay a mortgage out of the ward's other property.'' He is bound to apply rents and profits in keeping down the interest on mortgage debts; nor can he, in general, invest personal estate more judiciously than in freeing the land from debt altc^ther.* An order of court is not necessary in such cases, nor for judgment debts, but it would be required for discharging other than direct encumbrances.* Where a guardian purchases, on behalf of his ward, a house and lot expressly subject to a mortgage, he becomes personally liable for the amount of the unpaid debt; even though he had been authorized by the court to make the purchase. But the court will afford him relief from the ward's estate." In an English case, where a guardian borrowed money to pay off encumbrances on the ward's estate and promised to give the lender security, but died before doing so, the court refused to decree specific performance; though the lender's money had been duly applied for that purpose.* Here, however, there had been no written contract.'' The guardian will be liable for failure to protect the interests of provements on the ward 's land. Mort- gage Co. V. Sperry, 138 V. S. 313. Cf. Trutch V. Bunnell, 11 Ore. 58. One who lends money to a guardian who is authorized by the court to bor- row for the purpose of removing liens may recover the amount from the ward's estate. Bay v. MeGinniss, 81 Ind. 451. 99. Ankeny v. Eichardaon, 187 F. 550, 109 C. C. A. 316; Howard v. Bryan, 133 Cal. 257, 65 P. 462; Scot- tish-American Mortgage Co. v. Og- den, 49 La. Ann. 8, 21 So. 116 (only as sanctioned by a family meeting) ; Capen v. Garrison, 193 Mo. 335, 92 8. "W. 368, 5 li. B. A. 838 (statute authorizing mortgage for maintenance of ward does not authorize mortgage to discharge pre-existing incum- brance) ; Bell V. Dingwell, 91 Neb. 699, 136 N. W. 1128 ; Battell v. Tor- rey, &5 N. T. 294; Noble v. Bunyan, 85 m. 618; Lee v. Tonsor (Okla.), 161 P. 804; In re Hinds' Estate, 183 Pa. St. 260, 38 A. 599. An order of sale does not authorize a pledge. O'Herron v. Gray, 168 Mass. 573, 47 N. E. 429, 40 L. B. 498, 60 Am. St. B. 411. 1. Warren v. Union Bank of Bochester, 157 N. Y. 259, 51 N. E. 1036, 43 L. B. A. 256, 68 Am. St. Bep. 777 (act to pay debts contracted in unauthorized business) ; Tawitz v. Hopkins (Okla.), 174 P. 257 (only for existing debts). 2. Werber v. Cain, 71 8. C. 346, 51 8. E. 123. 3. Macphers. Inf. 285; March v. Bennett, 1 Vern. 428 ; Jennings v. Looks, 2 P. Wms. 278. 4. Palmes v. Danby, Prec. in Ch. 137; s. c, 1 Eq. Ab. 261; Waters v. Ebral, 2 Vern. 606. 5. Woodward's Appeal, 38 Pa. St. 322; Low v. Purdy, 2 Lans. 422. 6. Hooper v. Eyles, 2 Vern. 480. 7. As to applying money in pay- ment for land, where the title vested prior to the guardianship, see McCall V. Flippin, 58 Tenn. 161. § 919 GUAEDIA-N AND WAED. 1044r the ward in foreclosure of a mortgage on property belonging to tiie ward where the property is sold for less than the amount of the mortgage.* So, too, a guardian may redeem his ward's estate from foreclosure.® A guardian of a minor has a right to resort to the principal of the ward's estate, if to the latter's advantage. The legal control of the guardian over the personal estate of the infant is absolute within the bounds of a discretion bounded by an honest judgment of what his best interests require, and he may even sell the per- sonal property of the ward. So the guardian has full authority to pledge an insurance policy in which the ward is named as bene- ficiary for the purpose of raising money necessary for his educa- tion, and when there are no funds to pay the loan may them surrender the policy.^" Where a guardian pledges securities for a present loan a pledge© without notice may assume the transaction is proper.^^ Mortgage or Pledge to Ouardian. — The guardian may receive money secured to the ward by mortgage, and discharge the mort- gage, before, at, or after maturity, in the exercise of due prudence- and foresight ; ^^ and his discharge of a mortgage is protection to a subsequent mortgagee although the mortgage had not in fact been 8. Kidder v. Houston (N. J. Ch. Hardy v. Bank, 61 N. H. 34, and 1900), 47 A. 336. eases cited. Statutes generally indi- 9. Botham v. Mclntiei, 19 Pick. cate how the guardian may raise 346; Marvin v. Schilling, 12 Mich. money which he needs. In this ease 356. But see Sheahan v. Wayne, 42 the guardian's successor was allowed Mich. 69. to recover the notes pledged by a bill 10. Clare v. Mutual Life Insurance in equity. But as to the pledge of Co., 201 N. T. 492, 94 N. E. 1075, negotiable instruments not overdue 35 L. E. A. (N. S.) 1123; contra, to one who advances in good faith, Easterling v. Homing, 30 App. D. C. and without notice of infirmity, and 225 (holding that a guardian cannot as to pledge in general, see Sehouler, pledge i)ersonal property without or- Bailm., Part IV., ch. 4. der of court). 11. Bank of Guntersville v. ITnited In New Hampshire it is held that States Fidelity & Guaranty Co. a guardian has no common-law au- (Ala.), 75 So. 168. thority to bind his ward or the trust 12. Chapman v. Tibbits, 33 N. Y. fund by a pledge of the ward's prop- 289; Smith v. Dibrell, 31 Tex. 239. erty. A guardian who signs a note The debtor is discharged, though the as guardian simply binds himself per- guardian squander the proceeds. Ejd- sonally; and one who takes in pledge dell v. Vizard, 35 La. Ann. 310. Mort- from a guardian a note payable to gaged land may be redeemed from a the order of the guardian, has not tax sale. Witt v. Mewhirter, 57 la.. even an innocent holder's protection. 545. 1045 THE wakd's estate. § 921 paid; '* and so, too, lie may extend or renew a mortgage note or other note on fair terms ; ^* and on a breach may sell " or assign & mortgage,^" but a guardian has no authority to postpone the security of a mortgage held by him as guardian to another junior mortgage." § 920. Guardian's Occupation of Land. Where a guardian cultivates his ward's farm instead of letting it out, he is bound to cultivate as a prudent farmer would his own land ; otherwise the loss by depreciation of the property in value must be made good by him.'' And for losses occurring through his bad management of his ward's real estate he cannot expect to be recompensed.^' Or he may carry on the farm as guardian when he can do so with fair regard for tie ward's benefit, and claim allowance accordingly for his reasonable outlay.'" If he occupy the premises personally, he should account for rent.''' Stock and farming utensils on the ward's farm are prima facie the ward's property, as against a guardian who has carried on the farm in person.^' But this does not exempt from attachment property of the guardian which he purchases and places upon the ward's lands ; for the question of title is always open to proof.'* § 921. Changes in Character of Ward's Property; Sales; Ex- changes, &c. Conversions — that is to say, changes made in the character of trust property, from personal into real, or real into personal estate — are never favored, especially where the natural conse- 13. Werber v. Cain, 71 S. C. 346, good. Field v. Herrick, 101 HI. 110. 51 8. E. 123. Cf. Bates, Guardian v. Dunham, 58 14. Willick V. Taggart, 17 Hun, la. 308. In some States leases are 511. limited at all events to seven years, 15. StuU V. Benedict, 10 Cal. App. or other stated period. 619, 102 P. 961; Taylor v. Hite, 61 20. Remington v. Field, 16 E. I. Mo. 142. 509. 16. Tonges v. Vanderveer Canarsie 21. Hedges v. Hedges (Ky. 190Z), Improvement Syndicate, 148 N. Y. S. 67 S. W. 835; Hedges v. Hedges, 24 748. Ky. Law Eep. 2220, 73 S. W. 1112; 17. Covey v. Leslie, 144 Mich. 165, Stembach v. Friedman, 34 Hun, 542; 107 N. W. 900, 13 Det. Leg. N. 218. Parlin & Orendorff Co. v. Webster, 18. Willis V. Fox, 25 Wis. 646. 17 Tex. Civ. App. 631, 43 S. W. 569; 19. Harding v. Lamed, 4 Allen, Garrett v. Carr (Va.), 1 Eob. 196 426. The approval of the probate (interest allowed on surplus profits), court is not, in Illinois, essential to 22. Tenney v. Evans, 11 N. H. 346. the validity of the guardian's lease; 23. 76.; Tinney v. Evans, 14 N. H. unless 80 disapproved, the lease is 343. § 921 GTJAEDIAN AND WAED. 1046 quence would be to vary rights of inheritance. The previous sane tion of chancery should always be sought ; and this is only given under strong circumstances of propriety. As a rule the guardian may not convert his ward's personal estate into real estate without the previous sanction of chancery, nor may the vendor enforce a lien.^* The same may be said with less force of exchanges of the ward's property. Courts are reluctant to disturb the property of those who are only temporarily disabled from assiuning full control. Sales of real estate are in general only partial, and for necessary purposes. But sales and exchanges of personal estate are very common- And the guardian may sell personal estate for the purposes of the trust without a previous order of court, pro- vided he acts fairly and with good judgment; thought his safer course is to obtain permission. But sales of the real estate of the ward would be extremely perilous, if not absolutely void, unless previous authority had been obtained. Undoubtedly, they could not bind the ward under such circumstances. Nor is the guardian permitted to sell first and obtain judicial sanction afterwards, nor to contract to sell at his own instance.^' The guardian has as a general rule no authority to sell the ward's property.^* So the guardian must not buy land with the infant's money without the direction of chancery. And having obtained permission to do so, he is bound to exercise good faith and seek his ward's best interests.^' The statutes of most American States have greatly altered the law on the subject of conversions, so as not only to facilitate tlie sale of real estate belonging to cestuis que trust, but to enable their fiduciaries, under judicial authority, to make specific performance of contracts and to release vested and contingent interests.*' It 24. Boisseau t. Boissean, 79 Va. 73. Kent, Com. 238-230, and notes; Story, 25. Thaeker v. Henderson, 69 Barb. Eq. Juris., § 1357; Witter v. "Witter, 271; next chapter. 3 P. Wms. 101; Ex parte Phillips, 19 26 Los. Angeles County v. Winans, Ves. 122; Skelton v. Ordinary, 32 Ga. 13 Cal. App. 234, 109 P. 640; Blair 266; Ware v. Polhill, 11 Ves. 278; v. Dwyer, 110 La. 332, 34 So. 464; Holbrook v. Brooks, 33 Conn. 347; Gary v. Landry, 122 La. 29, 47 So. Eoyer 's Appeal, 11 Pa. St. 36; Woods 124; Grendllion v. Eoy, 125 La. 524, v. Boots, 60 Mo. 546; Ex parte 51 So. 576; Snecession of Drysdale, Crutchfield, 3 Terg. 336; Dorr, Peti- 130 La. 167, 57 So. 789; LeEoy v. tioner. Walker, Eq. 145; Kendall v. Jacobosky, 136 N. C. 443, 48 S. E. Miller, 9 Cal. 591. See Harris v. Har- 79«, 67 L. E. A. 977. See Bank of ris, 6 Gill & Johns. Ill; Davis's Ap- Welch V. Cabell, 152 P. 844. pe.-J, 60 Penn. St. 118. 27. Maephers. Inf. 278 et seq.; 2 28. See ne.-£t chapter. It may be 104T THE WAED S ESTATE. § 921 would appear, too, that, in the absence of any statute limiting his poweDPS, he has, as incidental to his office and duties, the power to sell, in the exercise of sound business discretion, his ward's per- sonal property, except, perhaps, as to peculiar incorporeal kinds,'" unless authority of the court is required ; ^^ and the fact that the etatrute provides for a license to sell does not prevent the guardian froin selling without a license.^^ A purchaser is bound to inquire as to the authority of the guar- dian to sell, and if he does not do so he cannot claim to be a purchaser without notice.'^ Where, at the time the court orders the sale or purchase of real estate by the guardian, the conversion was beneficial to the ward, it would appear that the guardian is not made liable if such conversion afterwards turns out injurious.^^ But whether an order of court would protect conduct notoriously imprudent, as incumbent upon a guardian by ■virtue of Ms trust t« sell land or foreclose, under a mortgage which he holds as an investment for his ward, in which case the usual rules of trusteeship ap- ply. Taylor v. Hite, 61 Mo. 142. 29. Bank of Guntersville v. United States Fidelity & Guaranty Co. (Ala.), 75 So. 168; Nashville Lumber Co. v. Barefield, 93 Ark. 353, 124 S. W. 758; Schmidt v. McBean, 98 111. App. 421; 196 ni. 108, 63 N. E. 655, 89 Am. St. E. 250; O'Herron v. Gray, 168 Mass. 573, 47 N. E. 429, 40 L. E. A. 498, 60 Am. St. B. 411 ; Pardoe V. Merritt, 75 Minn. 12, 77 N. W. 552; Cabbie v. Cabbie, 97 N. T. S. 773, 111 App. Div. 426. See Wallace v. Holmes, 9 Blatchf. 67; Humphrey v. Buisson, 19 Minn. 221. A guardian cannot, in South Carolina, sell and assign his ward's bond and mortgage of real es- tate without judicial sanction. Me- DufSe V. Mclntyre, 11 8. C. 551. Aliter, probably, in many States; thongfa the right to assign real estate Becnrity is more doubtful than that of assigning a simple note or bond upon personal security or without security. See preceding section ; Mack v. Bram- mer, 28 Ohio St. 508. General guar- dians do not represent their infant wards in foreclosure proceedings. Bheahan v. Wayne, 42 Mich. 69. Stock and its transfer follow pe- ■ culiar rules. Shares of stock stand Ing in the name of "A. B. guardian" cannot be sold so as to compel the company to recognize the transferee, without order of the court. De la Montagnie v. Union Ins. Co., 42 Cal. 290. A guardian's sale of cotton on credit, taking the purchaser's note without security according to business usage, does not necessarily render the guardian liable if such purchaser turn out insolvent. State v. Morrison, 68 N. C. 162. 30. McCutchen v. Eoush, 139 la. 351, 115 N. W. 903 (transferee tak- ing with notice) ; Gentry v. Bearss, 82 Neb. 787, 118 N. W. 1077. 31. Gardner v. Beacon Trust Co., 190 Mass. 27, 76 N. E. 455, 2 L. E. A. 767, 112 Am. St. Eep. 303; contra, Hendrix v. Eichards, 57 Neb. 794, 78 X W. 378. 32. Layne v. Clark, 152 Ky. 310, 153 S. W. 437; Hamilton v. People's Nat. Bank of Washington, 259 Pa. 220, 102 A. 877. 33. Bonsall's Case, 1 Eawle, 266. § 922 GUARDIAN AND WAED, 1048 if there should be a sudden and marked decline in the value of the land, from some cause not within the consideration of the court at the time of issuing the order, and such as would have been sufficient for its revocation, and the guardian, nevertheless, goes on and makes the sale at a sacrifice, may well be doubted.^* In this country the subject is commonly regulated by statute. A guardian may purchase for his ward, who is one of the heirs, such portion of an estate as the other heirs refused to take on partition, and the court ordered to be sold.^° § 922. Right to Sue and Be Sued as to Ward's Estate. The right to collect a debt implies the right to sue. Hence the guardian may, in the exercise of good discretion, and acting, if need be, under competent legal advice, institute suits to recover the ward's property.^" And this right extends to property fraudu- lently obtained from the ward before the guardian's appointment."'' Hence the guardian may, in the exercise of this discretion, institute action against a third person for possession of the ward's land "' or personal property,"' or to enjoin injury to the ward's real estate,*" or for injuries to the ward,*^ or for money due the estate.*^ And if he institutes groundless and speculative suits, and is unsuccessful, or occasions a controversy over his accounts through his own fault, he must bear the loss. So, too, whenever his conduct shows fraud or heedless imprudence.*" Otherwise, he 34. See Harding v. Lamed, 4 Allen, 86; Kerr v. MeKinney (Okla.), 170 426. P. 685. 35. Bowman's Appeal, 3 Watts, 40. Kinsley v. Kinsley, 150 Ind. 67, 363. 43 N. E. 819; Both v. Conly, 21 Ky. 36. Smith v. Bean, 8 N. H. 15; Law Eep. 1623, 55 S. W. 881. Shepherd v. Evans, 9 Ind. 260 ; South- 41. Cleveland C. C. & St. L. Ky. western E. v. Chapman, 46 Ga. 557. Co. v. Moneyhum, 146 Ind. 147, 44 37. Somes v. Skinner, 16 Mass. 348. N. E. 1106, 34 L. R. A. 141. See Cook v. Lee, 72 N. H. 569, 58 42. Beach v. Peabody, 188 HI. 75, A. 511 (guardian may not sue to set 58 N. E. 679 ; Potts v. State, 65 Ind. aside as fraudulent a conveyance by 273 ; Bryson v. Oollmer, 33 Ind. App. the ancestor). 494, 71 N. B. 229; Poultney's Minors 38. Cole V. Jerman, 77 Conn. 374, v. Barrett, 6 La. 493; Burke v. 59 A. 425; Duck Idand Club v. Bex- Burke, 170 Mass. 499, 49 N. E. 753. stead, 174 111. 435, 51 N. E. 831; See Williams v. Farmers' State Bank Beaghler v. Messick (Mo. App.), 202 of Sparks (Ga. App.), 97 8. E. 249; S. W. 409. Webb v. Hayden, 166 Mo. 39, 65 S. 39. Mayer v. Columbia Sav. Bank, W. 760. 86 Mo. App. 108 (replevin) ; Dold v. 43. Brown v. Brown, 5 E. L. & Eq. Dold, 169 N. T. S. 209, 103 Misc. 567; Savage v. Dickson, 16 Ala. 857; 1049 THE wabd's estate, § 923 is entitled to his costs and legal expenses out of tlie ward's estate.** In defending, as in bringing suits, and incurring costs and counsel fees, the rule is that the guardian should not wilfully or recklessly litigate over his ward's interests, but should apply ordinary pru- dence and discretion in considering the probable benefits of such a course.*^ Where the guardianship terminates and the wards become of age I)e(nding suit by the guardian the suit does not abate, but the wards may be substituted as plaintiffs,*" or if a new guardian is ap- pointed he may be substituted.*^ Proof that the ward has attained full age or is dead pending suit against the guardian will cause it to abate,*' but the guardian may recover on a note made to him as guardian although the ward has married or reached majority before action brought,*' and the general guardian of minors may sue them, a guardian ad litem being appointed for them."" § 923. Guardian's Right of Action for Benefit of Ward By the common law, the guardian could maintain an action of trespass and recover damages for his ward ; and the statute of West- minster II., c. 32, gave a writ of ravishment, by means of which he could recover the body of the heir as well as damages."* The equity of this statute may perhaps extend to testamentary, chancery, and probate guardians, as well as to guardians in socage; on which principle it has been held that the guardian may sue and recover damages for the seduction of his female ward."^ Local statutes in this country sometimes enlarge the guardian's right of action for the benefit of his ward ; and, as a rule, if a minor under guardian- ship sustains a personal injury from the tort of another his guar- dian may sue and recover for the ward's benefit just as the latter might have recovered through next friend in case he had no guardian."* But the guardian has no personal right of action Blake v. Pegram, 109 Mass. 541; 48. Logan v. Eobertson (Tei. Civ. Spelman v. Terry, 74 N. Y. 448. App. 1904), 83 S. W. 395. 44. Ee Flinn, 31 N. J. Eq. 640. 49. Kerr v. MoKinney (Okla.), 170 45. Kingsbury v. Powers, 131 HI. P. 685. 182; Coggins v. Flythe, 113 N. C. 50. Kidd v. Prince (Tex. Civ. 103, § 352. App.), 183 S. W. 725. 4fi. Shattuek v. Wolf, 72 Kan. 366, 51. Bac. Abr. Guardian (F.). 83 P. 1093; Smith v. Mingey, 172 52. Fernslee v. Meyer, 3 Watts A N. T. 650, 65 N. E. 1122 (affg. 76 Serg. 416. N. T. S. 194, 72 App. Div. 103). 53. §§ 1033-1035; Louisville R. v. 47. Homing v. Poyer, 18 Ohio Cir. Goodykoontz, 119 Ind. Ill, where the Ct. R. 732, 6 O. C. D. 370. child died from the injury. § 924 GXIAKDIAN AND WAED. 1050 like a parent to recover for loss of services of the child.'* The guardian may estop himself from recognizing the title of a third party." § 924. Parties. There is much conflict and some confusion concerning the proper parties to suits brought in which the ward is interested. The general rule that the ward is to be made the party in suits which concern his title is clear and well settled, and in most States as the guardian gets not title, but only the care and man- agement of property, it follows that all such suits must be brought in the name of the ward.°* There is an anomalous exception to this rule in England and New York when the guardian seeks to set aside an act done by an insane person who has been put under guardianship. This exception is founded in part upon the doctrine that the committee of an insane person acquires some right to the ward's estate and in part on the ancient theory that no man can be heard to stultify himself." The general guardian has no authority to appear in litigation in which the ward is interested, but a guardian ad litem must be appointed."* Wihere, however, the guardian makes contracts on behalf of the estate suits on such contracts, express or implied, are properly 64. Louisville Railway v. Goody- 385; McMuUen v. Blecker, 64 koontz, 119 Ind. Ill; §§ 757-771. Ee- W. Va. 88, 60 S. E. 1093 (partition imbursement of the ward's estate for suit) ; LongBtreet v. Tilton, Coxe, 38; medical attendance is a proper item SiUings v. Bumgardner, 9 Gratt. 273 ; of damage. Vincent v. Starks, 45 Wis. 458. See 55. Ingram v. Heintz, 112 La. 496, The Home v. Selling (Ore.), 179 P. 36 So. 507. 261 (ward assuming mortgage). 56. Campbell v. Fichter, 168 Ind. 67. Ortley v. Messere, 7 Johns. Ch. 645, 81 N. E. 661 (no authority to (N. T.) 139; Gorham v. Gorham, 3 contest will) ; Harrison v. Western Barb. Ch. (N. T.) 124. The court re- Const. Co., 41 Ind. App. 6, 83 N. E. fused to follow this exception in 256; Ire re Stnde's Estate (la.), 162 Lombard v. Morse, 155 Mass. 136, N. W. 10; Boudreaux v. Lower Terre- 138; Lang v. Whidden, 2 N. H. 435. Bonne Eefining & Mfg. Co., 127 La. 58. Saville v. SaviUe, 63 Kan. 861, 98, 53 So. 456 (to annul judgment 66 P. 1043; Elder v. Adams, 180 against ward) ; Mee v. Fay, 190 Mass. 303, 62 N. E. 373 ; Scott v. Mass. 40, 76 N. E. 22?; In re Catlin's Eoyston, 223 Mo. 568, 123 S. W. 454; Estate, 151 N. T. S. 254, 89 Misc. Schlieder v. Wells, 99 N. T. 8. 1000, 93 (construction of will); Empire 114 App. Div. 417; Buermann v. New State Surety Co. v. Cohen, 156 TT. York Produce Exchange, 3 How. Prae. T. S. 935, 93 Misc. 299; Stewart (N. Y.) 393. v. Sims, 112 Tenn. 296, 79 S. W. 1051 THE WAED S ESTATE. § 924 brought bj or against the guardian.;'* so where the guardian 69. Wolfe V. Murphy, 47 App. D. C. 296 (on note); McLean t. Dean, 66 Minn. 369, 69 N. W. 140 (note) ; Shepard t. Hanson, 10 N. D. 194, 86 N. W. 704 (note); BarnweU v. Marion, 54 S. C. 223, 32 S. B. 313 (on bond) ; Taylor v. Kilgore, 33 Ala. 214 ; Merrill v. Sherburne, 1 Fos- ter (N. H.), 204. In Louisiana no suit can be prosecuted by or for an insane person or minor except through a curator or tutor. Succession of Thomas, 35 La. Ann. 23. Among the cases in which the guardian has been allowed to sue in his own name are the following: For non-payment of rent. Pond v. Curtiss, 7 Wend 45. For trespass on his ward's lands. Truss V. Old, 6 Eand. 556; Bacon v. Taylor, Kirby, 368. For intermed- dling with the issues and profits thereof. Beecher v. Crounse, 19 Wend. 306. For an injury to any property of the ward in his actual possession. Fuqua v. Hunt, 1 Ala. 197. Or where he has the right of possession. Suth- erland V. Goff, 5 Porter, 508 ; Field v. Lucas, 21 6a. 447. Or on a note payable to himself as guardian, though given for a debt due to the ward. Jolliffe v. Higgins, 6 Munf. ."; Baier v. Ormsby, 4 Scam. 325; Thacher v. Dinsmore, 5 Mass. 299; Hightower v. MauU, 50 Ala. 495. Or, as it would appear, on his express con- tract touching the ward's estate. Thomas v. Bennett, 56 Barb. 197. As to statute provisions, see Turner V. Alexander as Guardian, 41 Ark. 254. As to amending the writ, see Weber v. Hannibal, 83 Mo. 262. As to power of the general guardian of an insane person, unlike an infant's guardian ad litem, to waive objections to the admission of testimony, see Warren Co. v. Dabney, 81 Mo. 275. But debts and demands of the ward should in general be prosecuted in the ward's name. And the guardian cannot sue in his own name, after his female ward's marriage, for a debt due her before such marriage. Bamet V. Commonwealth, 4 J. J. Marsh. 389. Nor on a promise to the guardians of the minor children of A. B.; for this is a promise to the wards. Carskad- den V. McGhee, 7 Watts & Serg. 140. Nor on an award, although he had submitted to arbitration. Hutchins V. Johnpon, 12 Conn. 376. Nor where a statute authorizes guardians to "de- mand, sue for, and receive all debts due" their wards. Hutchins v. Dres- ser, 26 Me. 76. And see Hoare v. Harris, 11 111. 24; Fox v. Minor, 32 Cal. 111. He cannot act on a petition for partition. Stratton's Case, 1 Johns. 509; Totten's Appeal, 46 Pa. St. 301. Nor subscribe a libel for divorce. Winslow v. Winslow, 7 Mass. 96. Nor bring a bill in equity in his own name touching the ward's transactions. Lombard v. Morse, 155 Mass. 136. He is sometimes author- ized by statute, however, to sue in his own name for the use of the ward. Fuqua v. Hunt, 1 Ala. 197 ; Longmire V. Pilkington, 37 Ala. 296; Mebane V. Mebane, 66 N. C. 354. And see Anderson v. Watson, 3 Met. (Ky.) 509 ; Hines v. MnUins, 25 Ga. 696. A guardian in Georgia must be party it an action to recover a legacy be- queathed to his deceased ward. Bea- vers V. Brewster, 62 Ga. 574. Guardian for minor heirs allowed, in Texas, to sue on a promissory note payable to the ancestor, on showing that they are the only heirs, and that there has been no administration. Eoberts v. Sacra, 38 Tex. 580. Sed qu. For unlawful detainer, and semble in all suits by guardian for the bene- fit of the ward, the action should be entitled in the ward's name iy guar- dian. Vincent v. Starks, 45 Wis. 458. A general guardian may sue in his own name to recover an infant's dis- tributive share; and separate suits where there are several infants so entitled. Hauenstein v. Kull, 59 How. Pr. 24. Cf. Jordan v. Donahue, 12 § 924 GUABDIAN AND WAKD. 1052 makes a contract in belialf of the ward he is the only necessary party defendant,*" but he may not be sued for necessaries fur- B. I. 1?9, and cases cited. And see Ankeny v. Blackiston, 7 Or. 407. As to procedure in West Virginia, see Burdett v. Cain, 8 W. Va. 282. In Illinois the probate or statuate guar- dian cannot bring suits in relation to his ward's real estate, aueh as eject- ment. Muller V. Benner, 69 111. 108. An action upon an express contract made by a guardian for his ward's benefit may be brought by or against the guardian personally. McKinney V. Jones, 55 Wis. 39. Payment by the debtor to an unau- thorized person cannot avail in de- fence against the guardian's suit; but as to the defence of payment to the natural guardian, cf. supra, § 255; also Southwestern E. v. Chapman, 46 Ga. 557. The right of action upon a note pay- able to a guardian for money of the ward passes, upon the guardian's death, to his personal representa- tive. Chitwood V. Cromwell, 12 Heisk, 658. And so in general where he might, if alive, have sued in his own name. J6. A guardian is to be sued in person upon notes executed by him in his official capacity. See 1 Pars. Bills & Notes, 89, 90; Thaeher v. Dinsmore, 5 Mass. 299; § 345. A guardian is not liable in assump- sit for necessaries. Cole v. Eaton, 8 Cush. 587. Nor for labor performed on the ward's buildings. Robinson v. Hersey, 60 Me. 225. But he may be sued upon his own contract touching his ward 's estate. Stevenson v. Bruce, 10 Ind. 397. And judgment should then be against him personally, and not against the ward. Clark v. Casler, 1 Cart. (Ind.) 243. Where the judg- ment is to bind the ward's property, suit should be against the ward. Otherwise the property of the guar- dian must be levied upon, who will look to the infant's estate for his own reimbursement. Tobin v. Addi- son, 2 Strobh. 3; Clark v. Casler, 1 Smith (Ind.), 150. And see Baymond V. Sawyer, 37 Me. 406; Bently v. Tor- bert, 68 Iowa, 122. As to conclusive- ness of judgments, see Morris v. Gar- rison, 27 Pa. St. 226. Judgment against a person as "guardian" ia a judgment against him personally, the additional words being descriptive merely. No action lies against a guardian upon the ward's contracts or debts; but suit should be against the ward, who may defend by guar- dian. Brown v. Chase, 4 Mass. 439; Willard v. Fairbanks, 8 E. I. 1. In dower and partition proceedings a guardian may appear for the ward, like any guardian ad litem, in some States. Eankin v. Kemp, 21 Ohio St. 651; Cowan v. Anderson, 7 Cold. 284; Miller v. Smith, 98 Ind. 226; State v. Cayce, 85 Mo. 456. In Massachusetts a ward's money may be reached by trustee process against him or taken on execution. Simmons v. Almy, 100 Mass. 239. In a suit against A. B. the words "as he is guardian," etc., may be rejected as surplusage. Eol- lius V. Marsh, 128 Mass. 116. Guardian and insane ward cannot be sued jointly to recover a debt which the ward incurred previous to the guardian's appointment. AUea V. Hoppin, 9 E. I. 258. The ward should not sue on the guardian's contracts, but he has a remedy on the guardian's bond or against the guardian personally. Dougherty v. Hughes, 165 Bl. 384, 46 N. E. 229; Martel v. Desjardin, 93 Me. 413, 45 A. 522. See Lynch V. Cogswell, 18 Ohio Cir. Ct. R. 641, 7 O. C. D. 12 (ward bound by decree of probate court approving payment) . 60. Howard v. Cassels, 105 Ga. 412, 31 S. E. 562, 70 Am. St. Eep. 44; Shelton V. Laird, 68 Miss. 175, 8 So. 271; King v. Starr, 9 Ky. Law Eep. 1053 THE WARD S ESTATE. § 925 nished to the ward without his order.'^ A claimant may pro- ceed in the probate court and obtain an order for payment of hi9 claim/^ or the claimant may sue on the guardian's bond.'* Actions involving injuries to the ward must be brought in the name of the ward."* In some States, however, the guardian may sue on the ward's behalf °° on leave of court.'* But the ward may proceed in equity to attack a fraudulent settlement of the minor's claim, there being no remedy at law; " and where the guardian buys property for his personal use with the knowledge of the seller, the seller becomes a party to the conversion of the funds, and may be sued by the ward." § 925. Compromise of Claims. The guardian may compromise when acting in good faith and with sound discretion for the benefit of his ward.'"' Local stat- utes are found in aid of this right. But on general principle the guardian's compromise and allowance of a baseless and unjust claim would not be upheld in equity as against the ward."* An infant cannot, in any event, be bound by the fraudulent com- promise of his guardian,'^" though he would be commonly by a 536; Lothrop v. Duffield, 134 Mieh., 485, 96 N. W. 577, 10 Det. Leg. N. 541 (for services) ; contra, Judson v. Walker, 155 Mo. 166, 55 S. W. 1083; Tow V. Elliot, 33 N. C. 51 ; Municipal Court of City of Providence v. Le Valley, 25 E. I. 236, 55 A. 640. 61. Pinnell v. Hinkle, 54 W. Va. 119, 46 S. B. 171. 62. Turner v. Flagg, 6 Ind. App. 563, 33 N. E. 1104; Reeves T. Hunter (Iowa), 171 N. W. 567. 63. Conant v. Kendall, 38 Mass. (21 Pick.) 36. 64. Illinois Cent. E. Co. v. Head, llff Ky. 809, 84 S. W. 751, 27 Ky. Law Eep. 270; Brock v. Eogers, 184 Mass. 545, 69 N. E. 334 (deceit) ; Pieper v. Shahid, 101 S. C. 364, 85 e. E. 905. 65. Havens v. Ahlering, 123 Ky. 713, 97 8. W. 344, 29 Ky. Law Eep. 1265; Bennett v. Bennett, 65 Neb. 432, 91 N. W. 409, 96 N. W. 994; Martin v. Caldwell, 49 Ind. App. 1, 96 N. E. 660 (right wholly statu- tory) ; Wright v. Cosmopolitan Life Ins. Ass'n, 154 HI. App. 201. See Los Angeles County v. Winans, 13 Cal. App. 234, 109 P. 640; Patterson V. Melchoir, 102 Minn. 363, 113 N. W. 902; Social Benev. Soc. No. 1 v. Holmes, 127 Ga. 586, 56 S. E. 775; Taylor v. Superior Court, 30 E. I. 200, 74 A. 482. 66. MuUer v. Naumann, 83 N. Y. S. 488, 85 App. Div. 337; Vinson v. Vinson, 105 La. 30, 29 So. 701 (fam- ily meeting must authorize suit). 67. Berdan v. Milwaukee Mut. Life Ins. Co., 136 Mieh. 396, 99 N. W. 411, 11 Det. Leg. N. 46. 68. American Surety Co. v. Vann (Ark.), 205 8. W. 646; Empire State Surety Co. v. Nelson, 126 N. Y. S. 453 (ward may sue third person tak- ing money with knowledge). 68a. Simes v. Ward, 78 N. H. 533, 103 A. 310. 69. Underwood v. Brockman, 4 Dana, 309. Nor, as it would seem, against the guardian himself, no blame attaching to him. 70. Lunday v. Thomas, 26 Ga. 537. § 925 GUAEDIAN A^TD VfASD. 1054 compromise made in good faith, apparently in the ward's interest at the time, and with reasonable prudence/^ On the same gen- eral principles, and with like limitations, the guardian may re- lease a debt due his ward, or a cause of action for damages.''* The same rule as to compounding and releasing debts appears to prevail in England as in this country; and it applies to all trustees alike.'* The guardian should not confess judgment against the ward, but should submit the matter to the court for decision,'* and cannot by consent to a void proceeding render it effectual.''^ The money received by a guardian on a fraudulent settlement made by the guardian will be credited in the ward's judgment for the same cause of action," and a note given to a guardian under an unlawful agreement not to prosecute for rape may be binding." A parent has no implied authority to settle a cause of action of his infant child.'* In the exercise of prudence and good faith or personal, in settlement of the latter's debt or claim," and he a guardian may, to save the ward from loss, accept property, real has no authority to compromise,'" or release a claim of the 71. Ordinary v. Dean, 44 N. J. 64. 75. Fowler v. Lewis' Adm'r, 36 W. Compromise or release under the Va. 112, 14 S. E. 447. sanction of the court having juris- 76. Bunch v. Foreman Blades Lom- diction of the guardianship is allowed ber Co., 174 N. C. 8, 93 8. E. 374. under some codes, and the guardian 77. GrifSn v. Chriswissor, 84 Neb. who obtains it is more amply pro- 196, 120 N. W. 909. tected than where he acts on his own 78. Missouri Pac. Ey. Co. v. liasea, responsibility. See Hagy v. Avery, 79 Kan. 311, 99 P. 616. 69 la. 434, as to executing a quit- 79. Mason v. Buchanan, 62 Ala. claim deed for land in litigation nn- 110. der the court's direction. And see 80. Nashville Lumber Co. v. Bare- compromise upheld, under statute, field, 93 Ark. 353, 124 S. W. 758. even though the ward 's estate be Contra, Grievance Committee v. Ennia, charged thereby with new liabilities. 84 Conn. 594, 80 A. 767. See, how- Smith V. Angell, 14 E. I. 192. ever, Malpass v. Graves, 111 Ga. 743, 72. Terry v. Black, 58 N. T. 158. 36 S. E. 955; Knights Templars' & An assumption of another's debt on Masons* Life Indemnity Co. v. Cray- the ward's behalf ought to be shown ton, 209 111. 550, 70 N. E. 1066; Bun- to be for the ward's apparent inter- nell v. Bunnell, 111 Ky. 566, 64 S. est at the time. Clear Creek Co. v. W. 420, 23 Ky. Law Eep. 800; Suo- Comstoek Co., 17 Col. 481. cession of Emonot, 109 La. 359', 33 73. Blue V. Marshall, 3 P. Wms. 381. So. 368; Berdan v. Milwaukee Mut. 74. Metcalf v. Alter, 31 La. Ann. Life Ins. Co., 136 Mich. 396, 99 N. 389; Bondreaux v. Lower Terre-Bonne W. 411, 11 Det. Leg. N. 48. See Eefining & Mfg. Co., 127 La. 98, 53 Stevens v. Meserve, 73 N. H. 293, 61 So. 456. A. 420, 111 Am. St. E. 612; Alexan- 1056 THE WAED's estate. § 926 ward.'^ Where a note or debt is lawfully due from a solvent party, the guardian may be held accountable for the whole if he settles for less than the full face amount.'^ § 926. Arbitration. A guardian is now generally permitted to submit to a fair arbitration questions and controversies respecting the property and interests of his ward, and the award made in pursuance thereof is binding on all parties.'* The original doctrine apart from statute seems to be this : that he cannot bind his ward by arbitration unless the court shall previously authorize him to do so, or subsequently approve, on the ground that it was for the ward's benefit.** And in considering what is beneficial and bind- ing as to a minor ward, the usual analogies applicable to infants have considerable application.*" Although the guardian may enter into an agreement of arbitra- tion in a proper case, still, where such agreement in fact sur- rendered to one who had no semblance of claim the ward's title to property, it is not binding on the ward," and equity will not uphold any arbitration which does not properly guard the ward's interests.*' der V. Alexander, 120 N. C. 472, 27 S. E. 121; Brown t. Fidelity & De- posit Co. of Maryland, 98 Tex. 55, 76 S. W. 944, 80 S. W. 593 (guardian cannot discount notes) ; Davis v. Beall, 21 Tex. Civ. App. 183, 50 S. W. 1086 ; Matt V. Matt, 182 Dl. App. 312; Piceiano v. Duluth, M. & N. Ry. Co., 102 Minn. 21, 112 N. W. 885. See Goodrich v. Webster, 74 N. H. 474, 69 A. 719 ; Holliday v. Hammond State Bank, 118 La. 1000, 43 So. 656 (authority of family meeting). At common law, a testamentary or general guardian has power to settle and compromise claims on be- half of his ward. Dwyer v. Corru- gated Paper Products Co., 141 N. T. S. 240, 80 Misc. 412; Eiehey v. Har- lan, 170 Ky. 461, 186 S. W. 149. Con- tra, MeGoodwin v. Shelby, 181 Ky. 230, 204 S. W. 171 (may settle doubt- ful contested claims of wards) ; Me- Goodwin V. Shelby (Ky.), 206 S. W. 625. See O'Beilly v. Beading Trust Co. (Pa.), 105 A. 542 (compromise approved by court). 81. Naeglin v. De Cordoba, 171 IT. S. 638, 19 S. Ct. 35, 43 L. Ed. 315 (affg. 7 N. W. 678, 41 P. 526). 82. Darby v. Stribling, 22 S C. 243. 83. Weed v. Ellis, 3 Caines, 253; Weston V. Stewart, 11 Me. 326; Hut- chins V. Johnson, 12 Conn. 376; Gole- man v. Turner, 14 S. & M. 118; Strong V. Beroujon, 18 Ala. 168. 84. A guardian cannot release the ward's rights in real estate, irrespec- tive of statutory power. Pond v. Hopkins, 154 Mass. 38; Fowler v. Lewis, 36 W. Va. 112. It is the guar- dian, and not the ward, who becomes thus liable to counsd for their fees when he engages. Hunt v. Maldo- nado, 89 Cal. 636. 85. Part V, chs. 2 & 3. 86. Bunnell v. Bunnell, 111 Ky. 566, 64 S. W. 420, 23 Ky. Law Rep. 800, 65 S. W. 607, 23 Ky. Law Rep. 1101. 87. De Vaughn v. McLeroy, 82 Ga. 687. § 927 QTJABDIAN AND WAKD. 1056 CHAPTEK VII. SALES OP THE WARd's BEAL ESTATE. Section 927. In Sales of Ward's Personal Property a Liberal Bale Applies. 328. Otherwise as to Eeal Estate; Whether Chancery Can SeU In- fant's Lands. 939. English Chancery Doctrine. 930. Civil-law Eule as to Sales of Ward's Lands. 931. Sale of Ward's Lands under Legislative Authority Common ia the United States. 932. American Statutes on this Subject Considered. 933. Guardian's Own . Sale Not Binding; Public Bale TJmiaJlj Eequired. 934. What Interests in Land May Be Sold. 935. Parties to Proceedings. 936. Purpose of Sales. 937. Eequisites of Petition. 938. Eequisites of Decree. 939. Eights of Purchaser Under Guardian's Deed. 940. Sales Void or Voidable. 941. Disposition of Proceeds. 942. Confirmation of Sale. 943. Sales in Cases of Non-Eesidents. § 927. In Sales of Ward's Personal Property a Liberal Rule Ap^ plies. The nature of personal property, its convertitility into cash, and the necessity frequently arising for changes of investment in order to mate it sufficiently productive, have brought about a flexible rule so far as its purchase and sale is concerned, and no actual conversion takes place. Hence courts of chancery at the present day assume considerable latitude in directing changes from one species of personal estate to another. Especially liberal must be the rule in those States where the trustee is free to invest in any securities deemed proper, provided he observes prudence and good faith. Hence, too, the guardian himself may sell and reinvest his ward's personal estate, and make purchases, without a previous order of court. But this is to be considered rather the American than the English rule; since, as we have seen in the preceding chapter, a guardian's discretion is strictly limited in England, and the practice of the chancery courts in such matters is to control the property. 1057 SALES OF BBAL ESTATE. § 928 § 928. Otherwise as to Real Estate; Whether Chancery Can Sell Infant's Lcinds. Courts of chancery, however, have no inherent original juris- diction to direct the sale of lands belonging to infants. The legislative power of a State may take the property of its citizens in the exercise of the right of eminent domain. But a judicial tribunal properly hesitates to assume such fuuctions. The com- mon law, which recognized fully the right of individuals to the enjoyment of their possessions, and particularly of real estate, without disturbance, appears to have treated lands belonging to infants as property which should be preserved intact until the owner became of sufficient age to dispose of it according to his own pleasure. Timber might be felled, and mineral ore dug out and carried away ; ** but though such acts constituted a technical conversion of real estate, they were in effect but a mode of enjoy- ment of the rents and profits, and the guardian was obliged to account for these products of the soil to the infant owner. Sales of the ward's lands were authorized in certain cases, as where there were debts to be paid, encumbrances to be discharged, judg- ments to be satisfied, or necessary repairs to be made upon the premises. But in such cases the court of chancery violated no rights of ownership ; since it is the universal doctrine that prop- erty can only be held subordinate to the obligation of paying one's debts.*® Mortgages were in rare instances permitted.'* Courts of chancery went no further, except when authorized by statutes. They preferred that the infant's property should re- main, while guardianship lasted, impressed with its original character. In the settlement of estates, personal property was to be taken to pay what was needful for support and maintenance, rather than lands. Not even purchases of real estate were favor- ably regarded. And when a sale became necessary, the real 88. See supra, eh. VI. But see 90. It. When an infant was abso- Stoughton's Appeal, 88 Pa. St. 198. lutely entitled, subject to certain 89. See ShafEner v. Briggs, 36 Ind. trusts, to the beneficial interest in real 55. On application for maintenance, estate, the legal estate being in trus- chancery has jurisdiction to charge tees, chancery directed the raising of expenses of past maintenance and money by means of a mortgage to de- costs on the infant's land. In re Ho- fray the cost of necessary repairs, warth, L. E. 8 Ch. 415. And see De .Tackson, Ite, 21 Ch. D. 786. See the Witte V. Palin, L. E. 14 Eq. 251; scanty precedents for such mortgages Nunn V. Hancock, L. E. 6 Ch. 850, as here cited; prospective charges not to jurisdiction in sale of reversionary seeming to have been sanctioned by interest of an infant; §§ 340, 351. such proeeedings. 67 § 928 GUAEDIAN AND WAED. 1058 estate was not resorted to until other means of raising money had failed; nor was a general sale of the lands ordered whenever a partial sale would suffice. On this subject Lord Hardwicke observed as follows, in Taylor V. Philips: *^ " There is no instance of this court's binding the inheritance of an infant by any discretionary act of the court. As to personal things, as in the composition of debts, it has been done, but never as to the inheritance; for that would be taking on the court a legislative authority, doing that which is properly the subject of a private bill." This language received the subse- quent approval of Lord Chancellor Hart."^ It has also been quoted as the recognized law in this country.'* In some States, chancery, by virtue of its general jurisdiction over infants and their estates, claims power to decree the sale of an infant's lands, whether held under a deed or will,®* or to partition, or to give orders to reinvest proceeds. Here the aid of local statute is sometimes invoked for the liberal exercise of such functions; but aside from such aid the claim is made positively in several States that chancery has inherent jurisdiction to order the sale of lands belonging to infants for their proper support and education, or more broadly still for their benefit.*" There are, indeed, numerous American decisions, in which the rights of infants in lands are protected in equity, so far as to give the infants opportunity to conform or set aside a sale of real estate and prevent them from being bound by a transaction to 91. 2 Ves. 23. did not pass under the infant's yrill. 92. Eussell v. Eussell, 1 Moll. 525. Horton v. McCoy, 47 N. T. 21. 93. Bogers v. Dill, 6 Hill, 415. See And see Cole v. Gourlay, 79 N. Y. abo the learned and elaborate opin- 527. Guardian summarily ordered to ion of the court, with citation of Eng- refund the excess of purcha3e-money Esh authorities, in William's Case, 3 in case of an error as to the extent of Bland, 186; Ex parte Jewett, 16 Ala. of the infant's lands. Matter of 409; Thompson v. Brown, 4 Johns. Price, 67 N. T. 231. Oh. 619 ; Faulkner v. Davis, 18 Gratt. 94. Goodman v. Winter, 64 Ala. 651. 410 ; Redd v. Jones, 30 Gratt. 123. Here real estate owned by tenants 95. Shumard v. Phillips, 53 Ark. in common, of whom an infant was 37; Thaw v. Ritchie, 136 U. S. 519; one, was sold under and in pursuance Hamar v. Cook, 118 Mo. 476. The lUi- of a judgment in a partition suit in- nois rule upholds such jurisdiction stituted by others of the tenants in quite extensively. Hale v. Hale, 146 common, and it was held that the por- HI. 227. Statutes of a State may af- tion of the proceeds belonging to the feet this whole jurisdiction. White- infant remained impressed with the head v. Bradley, 87 Va. 676; Shumard character of real estate, and as such v. PhilHps, 53 Ark. 37. 1059 SALES OF BEAL ESTATE. § 929 which they could not be parties in their own right. Instances are found in administrators' settlements to which the infant heir was not a privy, sales under decree to persons who had never paid the purchase-money, and fraudulent transactions.*" § 929. English Chancery Doctrine. Hence, too, whenever the court of chancery has permitted pur- chases of lands, the infant's right to affirm or disaffirm on reach- ing majority, or, as chancery sometimes expresses it, to show cause, has been reserved. Lord Eldon lays down with great cau- tion the power of the court in changing the infant's property, so as not to affect the infant's power over it when he comes of age.°'^ And whatever may be the rule where there is some claim or debt to be satisfied, it appears that chancery will decline ordering a sale of land belonging to an infant merely upon the ground that the sale would be beneficial to him; while in any case, if there be a material error in substance, and not in form alone, a pur- chaser may object to the title, and the court will discharge him from his contract.*' One objection to conversions of property, namely, that the laws of inheritance are not the same in real and personal estate, be- came obviated in equity by treating the proceeds throughout as impressed with the character of the original fund ; a rule of large application both in England and America.** Another objection, upon which English writers have dwelt at length, arose under the law of testamentary dispositions, which allowed infants to give and bequeath personal estate, males at the age of fourteen, and females at twelve, while real estate could not be devised under twenty-one. Here again chancery decreed, whenever a conversion was authorized, that the right of testamentary dis- 96. Williams v. Duncan, 44 Mias. 99. Wheedale v. Partridge, 5 Yea. 376; Jones v. Billstein, 28 "Wis. 231; 396; Macphers. Inf. 284; Story, Eq. Williams v. Wiggand, 53 HI. 233; Juris., §§ 790-793, and authorities Terry v. Tuttle, 24 Mich. 206; Phil- cited; 2 Kent, Com. 330, and n; lips V. Phillips, 50 Mo. 604; Walke Porman v. Marsh, 1 Kem. 544; Hor- V. Moody, 65 N. C. 599. ton v. McCoy, 47 N. Y. 31; Fidler 97. Ware v. Polhill, 11 Ves. 278; v. Higgins, 6 C. E. Green, 138 Ex parte Phillips, 19 Ves. 123. Holmes's Appeal, 53 Pa. St. 339 98. See 1 Dan. Ch. Pract., 3 Am. March v. Berrier, 6 Ired. Eq. 534 ed., 159', 160; Calvert v. Godfrey, 6 Huger v. Huger, 3 Desaus. 18. But Beav. 106. Jurisdiction under a re- this is not necessarily the case at law. cent statute considered in 1893, 1 Ch. And such proceeds lose their original 153. character and become personalty on § 932 GUARDIAN AND WARD. 1060 position should not be thereby changed. The wills act of 1 Vict, c. 26, dispenses with this distinction in testamentary dispositions altogether.^ And this latter objection never could have arisen in the courts of many of the United States. § 930. Civil-Law Rule as to Sales of Ward's Lands. Guardians and tutors of minors at the civil law had power, under the direction of the proper court, as it would appear, to convey the estates of their wards. ^ § 931. Sale of Ward's Lands Under Legislative Authority Common in the United States. Legislative authority may intervene to direct the absolute sale of an infant's lands. And since the ownership of real estate in this country is vested with comparatively little of that sanctity and importance which the ancient laws of primogeniture and feudal tenure threw about it, and inasmuch as purchases and sales of land are fast becoming matters of every-day occurrence, the legislatures of most of the United States have seen fit to enact laws for facilitating the sales of real estate by fiduciary officers. These laws are comparatively recent, and not altogether uniform in their provisions. But in most essential features they are alike. They constitute a permanent system. They may apply, not to guardians alone, but also to trustees, executors, and administrators. As cases are constantly arising under these laws, we shall here briefly notice some of the principles which have a special bearing upon the sales of real estate, so far as guardians are concerned, without deeming it necessary to make a minute analysis, since such statutes are purely local and subject to local variations. § 932. American Statutes on This Subject Considered. Our American statutes relative to the sale of lands belonging to infants have the following points in common : First, an appli- cation to the court on the infant's behalf upon which the order of sale issues. Second^ a special bond to be filed by the guardian. Third, the formal sale of the land, usually at public auction. Fourth, the execution of the deed to the purchaser. Fifth, 3 proper disposition of the proceeds of the sale. And in some their first transmission, though to cited. See Hill on Trustees, 396, n. an infant. Dyer v. Cornell, 4 Barr, 2. Menifee v. Hamilton, 32 Tex. 353. 495. 1. Macphers. Inf. 278, and cases 1061 SALES OF BKAT, ESTATE, § 932 States a judicial coii£rmatioii of the sale is required. The judi- cial order of sale is frequently termed a license; and the exact method of procedure is indicated in the statutes themselves. These statutes, we may add, not unfrequently limit the purpose for which such sales may be made: as, for instance, when the ■ward has no other means for his education and support; or, again, to pay proper debts; or sometimes for the purpose of in- vesting the proceeds so as to derive an income more readily. And again, the guardian, to be authorized is the probate, not the natural, guardian, who, besides giving the usual bond of guar- dianship, is likewise required to give the special bond of which we speak for the purposes of the sale.* And the legislative pro- vision sometimes extends to sales of reversionary or equitable interests of minors; or, again, is limited to property in which the minor has the legal title. It is the universal American rule, both under the statutes and at common law, that a guardian has no power to convey land without an order of court,* or to make a contract to convey," 3. See Morris v. Morris, 2 McCart. 239; Shanks v. Seamonds, 24 la. 131; People V. Circuit Judge, 19 Mieh. 296; Smith v. Biscailuz, 83 Cal. 344. Nor is the husband of an infant a guardian, under such statute, who can be thus authorized to sell. Dengenhart V. Craeraft, 36 Ohio St. 549. A sale ■will not be authorized after the guar- dianship has ended. Phelps et al. v. Buck et al., 40 Ark. 219. If A., up- on his representation that he is B. 's guardian, obtains an order to sell, when he is not B.'s guardian, the or- der is void and may be impeached col- laterally. Grier's Appeal, 101 Pa. St. 412. Sale cannot be made after the ward's death. Robertson v. Coates, 65 Tex. 37. Where the guardian's appointment was absolutely void the sale is likewise void. Dooley v. Bell, 87 6a. 74. But a merely irregular appointment is not to be assailed. Kramer, Appellant, v. Mugele, 153 Pa. St. 493; § 308. 4. Van Houten v. Black, 67 So. 1008 ; Punk v. Eentchler, 134 Ind. 68, 33 N. E. 985; Prazier v. Jeakins, 64' Kan. 615, 68 P. 24, 57 L. R. A. 575 ; Ayer & Lord Tie Co. v. Wither- spoon's Adm'r, 30 Ky. Law Eep. 1067, 100 S. W. 259 (timber) ; Bush V. Coomer, 24 Ky. Law Eep. 702, 69 S. W. 793; Poultney's Heirs v. Og- den, 8 La. 428; Eocques* Heirs v. Levecque 's Heirs, 110 La. 306, 34 So. 454; Touchy v. Gulf Land Co., 45 So. 434; Keel v. Sutherlin, 130 La. 182, 57 So. 794; Grain v. Tremont Lumber Co., 134 La. 276, 63 So. 901 (except to effect partition) ; Houlihan v. Fo- garty, 17 Det. Leg. N. 735, 162 Mich. 492, 127 N. W. 793; Meiggs v. Hoag- land, 74 N. Y. S. 234, 68 App. Div. 182; Drennan v. Harris (Okla.), 161 P. 781; Sampson v. Smith (Okla.), 166 P. 422; Sayers v. Pollock, 219 Pa. 274, 68 A. 732; De Armit v. Milnor, 20 Pa. Super. Ct. 369 ; Ellis y. LeBow, 96 Tex. 532, 74 S. W. 528, 71 S. W. 576, 30 Tex. Civ. App. 449; Merrill V. Bradley, 121 S. W. 561 (certified questions answered, 102 Tex. 481, 119 S. W. 297; Palmer v. Abrahams, 55 Wash. 352, 104 P. 648 ; Kester v. Hill, 42 W. Va. 611, 26 S. E. 376. 5. Nichols V. Bryden, 86 Kan. 941, 122 P. 1119; Wolf V. Helton, 104 § 934 GUAEDIAN AND WABD, 1062 althougli tlie guardian acts with tlie approval of the ward,' except for the purpose of collecting a debt.' § 933. Guardian's Own Sale Not Binding; Public Sale Usually required. In general, a guardian's sale of real estate belonging to hia minor ward, without an order from the court either by virtue of statute or chancery jurisdiction, is not binding upon the minor; and such ward's interest, legal or equitable, can only be divested by a public sale under proper judicial sanction;* though dis- cretion is sometimes given the court as to ordering and sanction- ing a private sale.* But under a deed of gift to minors, empow- ering the guardian to sell, his discretion is commensurate with the terms of the trust.^" § 934. What Interests in Land May Be Sold. It is held in New York that the statutes of that State provide for judicial sales only in cases where the legal title is in the infant; and that, independently of such statutes, the court of chancery, having regard to the infant's necessities and interest, may order a sale of the equitable estate. On this principle a chancery sale was sustained, as against infants, where a trust estate of infants in lands had been transferred by a contract made between the guardian and purchaser with the approval of the court.^^ Other sales of this kind have been allowed where the legal estate was in the infant.^" The power of sale may extend to the ward's homestead " or timber,^* or to an undivided interest of a minor in land, as tenant Mich. 107, 62 N. W. 174; LeEoy v. 12. In re Hazard, 9 Paige, 365. Jaeobosky, 136 N. C. 443, 48 S. E. 13. MerreU v. Harris, 65 Ark. 355, 796, 67 L. E. A. 977; Gault Lumber 46 S. W. 538, 41 L. B. A. 714, 67 Co. T. Pyles, 92 P. 175; Storey v. Am. St. E. 92?; In re Hamilton's Lonabaugh, 247 Pa. 331, 93 A. 481. Estate, 120 Cal. 421, 52 P. 708; An- 6. Bellinger v. Foltz, 93 Va. 729, cell v. Southern Illinois & M. Bridge 25 8. E. 998. Co., 223 Mo. 209, 122 8. W. 709; 7. Arrowwood v. McKee, 119 Ga. Hartsog v. Berry, 45 Okla. 277, 145 623, 46 S. E. 871. P. 328. See Ex parte Tipton, 123 8. Supra, § 356; Wells v. Chaffin, Ark. 389, 185 S. "W. 798. See Bushing 60 Ga. 677, Morrison v. Kinstra, 56 v Homer, 130 Ark. 21, 196 S. W. 468 Miss. 71. (only if free from debt). 9. Maxwell v. Campbell, 5 Ind. 14. Bettes v. Brower, 184 F. 343 361. (although timber called personalty 10. Thurmond v. Faith, 69 Ga. 832. still guardian must obtain order to 11. Woods V. Mather, 38 Barb. 473; sell it as realty). Anderson v. Mather, 44 N. T. 249. Where a guardian severs standing 1068 BALES OF BEAL ESTATE. § 935 in oommon or otnerwise," but the part-owner of lands in which, an infant is interested ought not to be allowed to make the sale," or to his interest as a remainderman/' or an equity subject to an existing mortgage,^* or to a contingent interest." It is held that chancery cannot interfere with the lands of infants unborn,^" In all such cases the guardian should keep within the scope of judicial and legislative permission.*^ § 935. Parties to Proceedings. Sales may be ordered on petition of a guardian,^* or of a special guardian.^* The infant wards are not necessary parties to proceedings for sale ^* unless by statute when they are over a certain age,^° and children bom after the sale are deemed to have been before the court.^° A guardian ad litem may be required. '^ Proceedings for sale do not terminate by the termination of the guardianship by the death or resignation of the guardian pending the proceedings, but a new guardian should be appointed to finish the sale.^* irees, it is his duty to sell the timber and aceonnt for the proceeds. Bush- kirk v. Sanders, 70 W. Va. 363, 73 8. B. 937. 15. Price, Matter of, 67 N. T. 331 ; Schafer v. Luke, 51 Wis. 669; Bren- ham V. Davidson, 51 Cal. 353; Fitz- patrick v. Beal, 62 Miss. 344. 16. In re TLUotsons, 2 Bdw. Ch. 113. 17. Oldaker v. Spiking (Mo.), 210 S. W. 59. 18. As to the effect of such a sale, see Iiynch v. Kirby, 36 Mich. 238. And see § 351. Guardian's petition to court for leave to mortgage should be in writing, and in Ehode Island be cannot give a power of sale in such mortgage. Barry v. Clarke, 13 R. I. 65. 19. Palmer v. Garland, 81 Va. 444 (aided by statute) ; Thaw v. Eitehie, 136 TJ. S. 519. Contra, Graff, v. Ean- kin, 250 F. 150, 38 8. Ct. 578. 20. Downin v. Sprecher, 35 Md. 474. 21. Kingsbury t. Powers, 131 IlL 182. 22. Ellis V. Smith's Guardian, 147 Sy. 99, 143 S. "W. 776. 23. Hagerman v. Meets, 13 N. M. 565, 86 P. 801; Baker v. Cureton, 150 P. 1090. 24. Furr v. Bums, 134 Ga. 742, 53 S. E. 201; Dillingham v. Spalding, 7 Ky. Law Eep. 370. 25. Eosenfeld v. Miller, 115 N. Y. S. 692, 131 App. Div. 282 (14 years). 26. Ammons v. Ammons, 50 W. Va. 390, 40 S. E. 490. 27. Siler v. Archer's Guardian, 26 Ky. Law Eep. 557, 82 S. W. 256. See Succession of Coleman, 11 La. Ann. 109; Weil v. Schwartz, 51 La. Ann. 1547, 36 So. 475. There is no presumption of law that a guardian is so interested per- sonally in a proceeding to sell the ward's real estate that a guardian ad litem should be appointed; every presumption being indulged that the guardian will protect the ward's in- terest until the contrary is shown. Ancell V. Southern Illinois & M. Bridge Co., 323 Mo. 209, 122 8. W. 709. 28. Danahy v. Fagan, 117 N. T. 8. 300, 63 Misc. 658; McVaw v. Shelby, 25 Ky. Law Eep. 309, 75 8. W. 227. § 937 GUABDIAN ANB WAKD. 1064 § 936. Purpose of Sales. It is commonly provided by statute that the court may author- ize sales by the guardian of the estate of the ward for various purposes, as on account of undivided interests therein,^' or to pay debts of the ward/" or for a proper change of investment/' or when real estate is unproductive/^ or may direct an exchange of the ward's lands/* or to use the proceeds of sale for the main- tenance of the ward/* but not for the purpose of erecting per- manent improvements.'" § 937. Reqmsites of Petition. The petition for sale should set forth its necessity/" the pur- pose for which a sale is asked/' showing benefit to the 23. Howard v. Bryan, 133 Cal. 257, 65 P. 462; Skidmore v. Cumberland VaUey Laud Co., 126 Ky. 576, 104 S. W. 390, 31 Ky. Law Eep. 1002; In re Congdon, 41 N. Y. Ch. 1831, 2 Paige, 566. See In re Culver (Del. Orph.), 104 A. 784 (not enough that widow wants dower appraised). See In re Erans, 143 N. T. S. 839, 82 Mi3c. 193 (application to convey ward's in- terest to a corporation and take stock in payment denied). See Frantz v. Lester (W. Va.), 95 S. E. 945 (stat- ute authorizing sale to be liberally construed) . SO. Alcon V. Koons, 42 Ind. App. 537, 82 N. E. 92. See Irvine v. Stevenson (Ky.), 209 S. W. 7 (debts of ward's ancestor); Warren v. Union Bank of Eoehester, 157 N. T. 259, 51 N. E. 1036, 43 L. E. A. 256, 68 Am. St. E. 777 (order void when granted to pay an unauthorized debt). 31. MeCreary v. Billing, 176 Ala. 314, 58 So. 311. 32. Crawford v. Broomhead, 97 Ga. 614, 25 S. E. 487. 33. Decker v. Eeasler, 146 Ind. 16, 44 N. E. 657. Contra, Ford v. May, 157 Ky. 830, 164 S. W. 88. 34. Dixon v. Hosick, 101 Ky. 231, 41 S. W. 282, 19 Ky. Law Eep. 387; Campbell v. Goodin's Guardian, 128 Ky. 278, 108 S. W. 248, 32 Ky. Law Eep. 1137 (only where guardian un- able to support her) ; Hudson's Guar- dian V. Hudson, 160 Ky. 432, 169 S. W. 891 (out of principal) ; Nunnely's Guardian v. Nunnelly, 180 Ky. 131, 201 S. W. 976 ; Eaker v. Harvey (Mo. App.), 179 S. W. 985; Leet v. Gratz, 92 Mo. App. 422 (not to compromise a claim) ; East Greenwich Inst, for Savings v. Shippee, 20 E. I. 650, 40 A. 872; Gayle v. Hayes' Adm'r, 79 Va. 542. See Farris v. Bingham, 164 Ky. 444, 175 S. W. 649 (the sale of exempt property of infants, held warranted where retention would only give the use of it to their guardian). 35. Little V. West, 145 Ga. 563, 89 S. E. 682. 36. Van Houten v. Black, 67 So. 1008; In re Hamilton's Estate, 120 Cal. 421, 52 P. 708 (petition need not show how much of ward's estate is undisposed of) ; Howard v. Bryan, 133 Cal. 257, 62 P. 459, 65 P. 462 (items for which money is wanted) ; McKeever v. Ball, 71 Ind. 398; Alcon V. Koons, 42 Ind. App. 537, 82 N. E. 92; Phillips v. Spalding's Guardian, 31 Ky. Law Eep. 579, 102 S. W. 1193; Soekey v. Winstock, 43 Okla. 758, 144 P. 372; Pyeatt v. Estus (Okla.), 179' P. 42; Bailes v. Anderson (W. Va.), 95 S. E. 1039 (signed and sworn to by guardian). 37. Beezley v. Phillips, 54 C. C. A. 491, 117 F. 105; CampbeU v. Goodin'g 1065 SALES OF KEAL ESTATE. § 939 ward,** describing the land to be sold,"' and the ward's interest in the property,*" showing the wards as parties.*' § 938. Requisites of Decree. The order of sale should state its terms.** § 939. Rights of Purchaser Under Guardian's Deed. The guardian's deed mad© under such orders of court has usually only the effect of a quitclaim, except so far as he may have covenanted on his part that he has complied with the statute requisites and that he is the guardian duly authorized; and in general he cannot bind his ward by any covenants of warranty in the deed, though if he choose to warrant he may bind himself. The purchaser in such sales usually takes all risks of title except as concerns the authority and good faith of the guardian in the premises.** The doctrine of caveat emptor will not be applied to a sale by a guardian of the ward's property under order of court, as the purchaser has a right to demand a marketable title free from reasonable doubt as to its validity. So the purchaser is not bound to carry out the bargain where there is a right of way over the premises of which neither party knew at the time of the sale.** Guardian, 128 Kj. 278, 108 S. W. 25 Okla. 679, 107 P. 433 (need not 248, 32 Ky. Law Eep. 1137 (inability show ward resides in county). See of father to support ward) ; Schaale Fowler v. Lewis' Adm'r, 36 W. Va. V. Wasey, 70 Mieh. 414, 38 N. W. 11, 14 8. E. 447 (eo-owners made 317. parties renders proceeding effective). 38. Womhle v. Price 's Guardian, Contra, Ellis v. Smith 's Guardian, 143 112 Ky. 533, 66 S. W. 370, 67 S. Ky. S9, 143 8. W. 776. W. 9. 42. In re Hamilton's Estate, 120 S9. Theobald v. Deslonde, 9^ Miss. Cal. 421, 52 P. 708 ("for cash" is 208, 46 So. 712 ; Maurr v. Parrish, 7 sufficient) ; Teague v. Swasey, 46 Tex. Ohio Dec. 54, 1 Wkly. Law Bui. 85 Civ. App. 151, 102 S. W. 458. (wrong lot number renders proceed- Decree for guardian's sale of real ings void) ; Jirou v. Jirou (Tex. Civ. estate, making no reference to a cer- App. 1911), 136 8. W. 493. tain lot, held not to authorize gnar- 40. Puckett V. Glendinning (Ark.), dian in imposing any servitude upon 205 8. W. 454; Worthington v. Dun- such lot. Silverman v. Betti, 222 kin, 41 Ind. 515; Campbell v. Goo- Mass. 142, 109 N. E. 947; Both v. din's Guardian, 128 Ky. 278, 108 8. TTnion Nat. Bank of Bartlesville "W. 248, 32 Ky. Law Kep. 1137 (title (Okla.), 160 P. 505. papers need not be filed where ward 43. State v. Clark, 28 Ind. 138; took by descent) ; Dole v. Shaw, 282 Byrd v. Turpin, 62 Ga. 591 ; Holyoke HI. 642, 118 8. E. 1044; Bailes v. v. Clark, 54 N. H. 578. Alderson (W. Va.), 95 8. E. 1039. 44. Stonebrook v. "Wisener (la.), 41. Eevill's Heirs v. Claxton's 153 N. "W. 351, L. E. A. 1915E, 835. Heirs, 75 Ky. 558; Eaves v. Mullen, See contra, Mantemach v. Studt, 240 § 940 qvasdiJlS and waed. 1066 And it is held that caveat emptor does not apply to the purchaser so as to require him in equity to take the title where actual repre- sentations of the guardian as to the goodness of the title turn out untrue.*" § 940. Sales Void or Voidable. The most difficult question which arises under the statutes relating to sales of the infant's lands is that of the essentials of the purchaser's title. In what cases may the guardian's sale be set aside ? "What statute provisions shall he regarded as impera- tive, and what as merely directory ? How far will irregularities avoid the guardian's acts, and who is at liberty to impeach them ? One proposition may be laid down at the outset. It is that, inas- much as the authority of the guardian to make, and of the court to permit, an absolute sale of the infant's lands, is limited to the grant of powers conferred by the legislature, the terms of such grant should be carefully followed. Sales made in utter disre- gard of the precautions wisely interposed by law are absolutely worthless.** And furthermore, there are constitutional con- straints in a majority of our States upon corrections of void and irregular sales of this character by a special act of legislation.*' On the ether hand, it must be admitted that there is always a hardship imposed upon a bona fide purchaser, whose rights once apparently vested are afterwards pronounced null. If the purchaser took the child's lands by collusion and fraud, or, being the guardian himself, abused his trust to secure his own profit, equity might justly suffer the transaction to be set aside alto- gethfr. But a stranger who pays his purchase-mou'ey honestly and fairly ought not to be compelled to suffer for mere irregu- larities under the law. For such fraudulent acts of the guardian as necessarily follow the consummation of a bargain — as the misapplication of the purchase-money — it is clear that this purchaser is not liable.** A sale, too, if valid when made, is not rendered invalid by the guardian's subsequent resignation and the appointment of another person in his place.*" 111. 464, 88 N. E. 1000 (holding that 47. See Roche v. "Waters, 72 Md. caveat emptor does apply to a guar- 264. dian's sale). 48. Fitzgibbon v. Lake, 29 111. 165 j 45. Black v. Walton, 32 Ark. 321. Kendrick v. Wheeler, 85 Tex. 247; 46. Ex parte Guernsey, 21 HI. 443 Barrett v. Churchill, 18 B. Monr. 387 Patton V. Thompson, 2 Jones Eq. 411 Mason v. Wait, 4 Scam. 127. Orman v. Bowles, 18 Col. 463. 49. Hemdon y. Lancaster, 6 Bnsh, 483. 1067 SALES OF EBAL ESTATE. § 940 As to those acts which precede the consummation of a bargain the purchaser is put on his guard, unless from the very nature of the case thej could not have come to his observation. Irregu- larities or omissions to comply with statute formalities seem to range themselves in three classes: those which are immaterial; those which will render a sale voidable by certain parties inter- ested; those which go to the foundation of the sale and render it void altogether. And according to the judicial construction of such irregularities and omissions, under the statutes and practice of the particular State, will the purchaser's title be determined. Where the sole authority of the guardian is derived from the statute, courts will reluctantly declare any part of that statute immaterial, except in the sense that the responsibility for non- compliance is thrown upon the guardian or the court, and not upon the purchaser. Informalities in the recitals of a iona fide deed, defective notices, the insertion of irrelevant or superfluous matter in the order of sale, errors of the guardian in his allega- tions or of the court in issuing process, have been in this sense ruled as immaterial. But such cases are generally not so much of statutory direction as of judicial rule and common-law anal- ogies in supplying the intention of the legislature where the statute was silent. The general principle prevails, that it is wise policy to sustain judicial sales, and that they should not be declared void or voidable for slight defects ; ^° and all intend- ments will be indulged in favor of the decree." Of mere irregularities advantage may often be taken by direct proceedings concerning the sale, as by appeal, or by a refusal to consummate the sale; while, to attack the completed sale and a purchaser's title collaterally, statute fundamentals should have been disregarded. As to irregularities or omissions which will render a sale void- able, either the infant heir or some other person in interest has 50. Fitzgibboa v. Lake, 29 HI. 165; 79 App. Div. 495, 86 App. Div. 629; Cooper V. Sunderland, 3 la. 114; Harris v. Hopkins, 166 Ky. 147, 17» Thornton \. McGrath, 1 Duv. 349; S. W. 14; Wood v. Frickie, 120 La. Ackley v. Dygert, 33 Barb. 176. 180, 45 So. 96; Drennan v. Harris 51. Howard v. Bryan, 133 Cal. 257, (Okla.), 161 P. 781; Greer v. Ford, 65 P. 462; Field v. Peeples, 180 HI. 31 Tex. Civ. App. 389, 72 S. W. 73. 376, 54 N. E. 304 (though petition See Landreth v. Henson, 173 S. W. destroyed and purpose of sale does 427 (presumption of regularity may not appear in decree) ; In re Turner, be overcome by proof) ; Mullinax v. 80 N. T. 8. 573, 83 N. T. S. 1118, Barrett (Tex. Civ. App.), 173 8. W. § 940 GTJAEDIAN AND WAED. 1068 been unfairly dealt witL Here the privilege is accorded to the party or parties wronged, of having the sale set aside on appeal or by direct proceedings instituted for that purpose; but not in a collateral manner. We need not here speak of the infant's right of election in certain cases on attaining majority.'"' Where in general the guardian obtained his license without duly notifying a person in interest, such person is allowed to have the sale set aside. The purchaser's title is, however, good in the meantime. I^OT can anyone take advantage of the defective proceedings but those whose interests were injuriously affected. A special limit is frequently set by law to proceedings of this kind, for the sake of quieting titles; otherwise, the ordinary statute of limitations seems to apply. °^ And length of time and laches on the infant's part after reaching majority, or his election not to avoid, may often render the transaction unimpeachable. °* After destruction of the records and lapse of time, the sale may be presumed to have conformed to essentials.'^ Presumptions in short are in favor of the regularity of all probate court proceedings within each jurisdiction; and such proceedings should seldom be avoided when collaterally attacked unless it is shown affirmatively that there was no actual jurisdiction."" But as to irregularities or omissions which render the sale void altogether, there is some confusion of authority. The principle itself is a clear one, but in the application commonly made seems much difficulty. The license of a court plainly without com- 1181; Goodman v. Schwind (Tex. Civ. to purchaser until eonveyanee is exe- App.), 186 S. "W. 282 (sale void where cuted, confirmed, &c., even though by clerk of court is the guardian). its terms dating back. Ordway v. 52. Infra, ch X; Part V, eh. 5. Smith, 53 la. 589. 53. Kimball v. Pisk, 39 N. H. 110 ; 55. Spring v. Kane, 86 111. 580. Bryan v. Manning, 6 Jones, 334; Where a court of equity acts on gene- Field V. Goldsby, 28 Ala. 218; ral grounds, it must inquire whether Butcher v. Hill, 29 Mo. 271; Gilmore the infant will be benefited; if not, V. Eodgers, 41 Pa. St. 120 ; Marvin decree should be refused. Ames et al. V. Schilling, 12 Mich. 356; Kenniston. v. Ames et at, 48 111. 321. General V. Leighton, 43 N. H. 309. jurisdiction denied in selling land 54. See infra, ch. X; Part V, chs. where an adult had a part interest. 5 and 6; Havens v. Patterson, 43 N. Eoche et al. v. "Waters, 72 Md. 264. Y. 218; Parmele V. McGinty, 52 Miss. Jurisdiction apart from statute de- 475. Infant 's title under statute sale, nied. Whitehead v. Bradley, 87 Va. when actually divested, see Doe v. 676. Jackson, 51 Ala. 514; Shaffner v. 56. See Howbert v. Heyle, 47 Kan. Briggs, 36 Ind. 55; MacVey v. Mac- 58; Meikel ct al. v. Borders, 129 Ind. Vey, 51 Mo. 406; Schafer v. Luke, 529; Curie v. Pranklin, 51 Ark. 338. 51 Wis. 669. Land held not taxable 106^ SALES OF EEAL, ESTATE. § 940 petent jurisdiction would be void. But where the court has jurisdiction (and this jurisdiction is usually vested originally in county courts having probate jurisdiction'*''), it is material to inquire what provisions of the statute are positive and what are declaratory. In some cases, a very strict rule seems to have been pursued; in others, the construction has been liberal in favor of the purchaser's rights. The execution of the statute bond woiild 6eem to be in general an essential, though some States do not so regard it; so, too, a public sale at the time set; sometimes the filing of an oath ; the offer of such land as the license designates and none other; the delivery of a deed to the purchaser and receipt of the purchase-money. And yet the guardian's failure to comply with certain of these formalities does not invariably affect the purchaser's title. The diflBculty is set at rest in some States by a statute provision as to the essential particulars which a bona fide purchaser is bound to notice."* We can only add that, in States where the legislature supplies no such provision, a pur- chaser cannot feel safe in disregarding any forms of procedure prescribed in so many words; and that, the more explicit the language of the statute, the more careful he should be in insisting on the prescribed course, especially as to the sale and the method of conducting it.°' There might be defects to urge directly for 57. As to courts of common pleas, Gager v. Henry, 5 Sawyer C. C. 237; for such jurisdiction, see McKeever Mohr v. Mahierre, 101 XJ. S. 417. Nor V. Ball, 71 Ind. 398; Foresman v. the appointment of a guardian ad 36 Ohio St. 102. litem. Orman v. Bowles, 18 Col. 463. 58. Gen Sts. Mass., ch. 102, §§ 37- But notice to the ward is usually re- 48; Mohr v. Tulip, 51 Wis. 487. quisite. Rankin v. Miller, 43 la. 11; 59. Williams v. Morton, 38 Me. 47; Kennedy v. Gaines, 51 Mis3. 625; Owens V. Cowan, 7 B. Monr. 152; MusgraTe v. Conover, 85 111. 374. Palmer v. Oakley, 2 Dong. 433 ; Stall Though the ward need not join in V. Macalester, 9 Ham. 19; Blackman the petition. Cole v. Gourlay, 79 N. V. Baumann, 22 Wis. 611; Strouse v. T. 527. Jurisdiction is essential. In Drennan, 41 Mo. 289 ; Brown v. Chris- some States the probate court has no tie, 37 Tex. 73 ; Frazier v. Steenrod, authority to order a sale. Summer v. 7 la. 339. Howard, 33 Ark. 490. See Fores- Due notice to those interested in man v. Hagg, 36 Ohio St. 102. The the sale is essential. Knickerbocker statute which prescribes in what V. Knickerbocker, 58 HI. 39?; Haws county application should be mado V. Clark, 37 la. 355; Williamson v. for leave to sell must be regarded. Warren, 55 Miss. 19. But the pro- Spellman v. Dowse, 79 111. 66; Mohr ceeding is in rem, in the ward 's inter- v. Tulip, 51 Wis. 487. Advice of a est; and hence notice to heirs is not family meeting is an element in always insisted upon as necessary. Louisiana practice. Wisenor v. Lind- Mulford V. Beveridge, 78 HI. 455; say, 33 La. Ann. 1211. There is no § 940 GtrAEDIAjy AND WAED. 1070 avoiding such a sale which could not enable the sale to be attacked jurisdiction to authorize a mortgage under a guardian's petition which asks for a sale. McMannis v. Eice, 48 la. 361. The notice of public sale with a wrong time or no time stated is fatally defective. Lyon v. Van- atta, 35 la. 531. But cf. Spring v. Kane, 86 111. 580. A sale bond is essential in some States, while in others, especially where confirmation is made by the court, its omission does not invalidate the sale. Stewart V. Bailey, 28 Mich. 251; Blauser v. Diehl, 90 Pa. St. 350; Howbert v. Heyle, 47 Kan. 58; McKeever v. Ball, 71 Ind. 398; Railroad Co. v. Stein- feld, 43 Ohio St. 454 ; Barnett v. BuH, 81 Ky. 127; Goldsmith v. Gilliland, 23 Fed. E. 645. But informality in the bond is not necessarily fatal. McKinney v. Jones and Another, 55 Wis. 39. See Watts v. Cook, 24 Kan. 278; Cuyler v. Wayne, 64 Ga. 78. A special bond covers only a sale under the specific license. Weld and Others V. Johnson Mfg. Co., 84 Wis. 537. Cf. Arrowsmith v. Gleason, 46 Fed. B. 256. As to requisites and sufficiency of a petition for leave to sell, there are many decisions of little more than local consequence. Discretion of a county court in ordering a sale may be controlled usually on appeal. A defective petition does not usually affect the court's jurisdiction. And see Eobertson v. Johnson, 57 Tex. 62 ; Ellsworth V. Hall, 48 Mich. 407. There has been some conflict of cases as to whether a sale is valid without the statutory notice to per- sons in interest. But the present in- clination upholds the sale where a proper petition was presented to the proper court, thus giving the court jurisdiction in rem. The sale may then bind the guardian and his ward, and -all having notice and assenting, even though it might not bind parties adversely interested having no notice. For the notice is not to give jurisdic- tion of the subject-matter, but to get jurisdiction of persons adversely in- terested. Mohr V. Tulip, 51 Wis. 487, and cases cited; Nott v. Sampson, Man. Co., 142 Mass. 479. The place of sale need not be des- ignated. Williamson v. Warren, 55 Miss. 199. There may be a merely defective notice, so as not to render the sale void as in case no notice were given. Lyon v. Vanatta, 35 la. 521; Bunco V. Bunce, 59 la. 533; Eichard- son V. Farwell, 49 Minn. 210. A limit of sale by appraisement or otherwise is sometimes set. Fraser v. Zylicz, 29 La. Ann. 534. Statute requirement of publication for successive weeks, how fulfilled. Dexter v. Cranston, 41 Mich. 448. As to adjourning the sale, see Gager v. Henry, 5 Sawyer C. C. 237. Defective recitals in a guar- dian's deed; whether the deed must be cancelled. Bobb v. Barnum, 59 Mo. 394. Succinct statements in such deed are sufficient. Worthington v. Dunkin, 41 Ind. 515. Where the court has jurisdiction, and makes an order for the sale, a hona fide but irregular arrangement by the guardian with the purchaser, as to delivery of deed to carry out the terms of the sale, will not readily be regarded as invalidat- ing the sale. Mulford v. Beveridge, 78 m. 455. The act of conveyance is rather official than personal, and may be carried out by a successor to the guardian who sold. Lynch v. Kirby, 36 Mich. 238. A ward had a void de- cree of sale set aside where his guar- dian misappropriated the proceeds and was not compelled to refund the pur- chase-money, in Eeynolds v. McCurry, 100 HI. 356. As to limitation of ward's disability to set aside, see White V. Clawson, 79 Ind. 188. A formal order of court confirming the sale is not needful usually to give it validity; but local statutes differ. Eobertson v. Johnson, 57 Tex. 62; Bunce v. Bunce, 59 la. 533; Eeid et al. V. Hart, 45 Ark. 41; Bone v. Tyrrell, 113 Mo. 175; Moore v. Davis, lO"?! SALES OP EEAIi ESTATE. § 940 collaterally. The guardian's tender of a deed with misrecitalfl of importance need not be accepted by tbe party purchaser."" The purchaser may sometimes maintain a bill in equity for rescinding the sale on account of illegality. But he must offer to surrender possession and to account for the use and occupation of the premises.*^ Defective proceedings are sometimes cured by the court, so as to compel him to abide by the terms of the pur- chase. Mere irregularities in a guardian's sale not affecting the jurisdiction and the validity of a title do not justify the purchaser in refusing to complete the purchase."" He is presumed to have knowledge of all judicial limits as to price and other essentials on record in the license proceedings.** And it seems that he may, by his laches, forfeit his right of objection to the sale."* What- ever the favor to be shown to a bona fide purchaser without notice of fatal defects in the title or misappropriation of the proceeds, one who connives at a fraud upon the ward may be held account- able for the trust property or its proceeds."' But sales made in fraud of an infant are sometimes adopted and confirmed by a court, with the purchaser's assent, as being beneficial to the infant.'" A guardian in general can only safely accept money in payment of the purchase prioe.'^ An order of sale obtained by one who has never qualified as 85 Mo. 464; Scarf V. Aldrich, 97 Cal. 63. In re Petition of Axtele, 9i 360. What such order adjudicates, Mich. 244. see Dawson v. Helmes, 30 Minn. 64. Cooper v. Hepburn, 15 Gratt. 107. Thongh confirmation ought 551. to precede the delivery of a deed, 65. See Wallace v. Brown, 41 Ind. a deed previously delivered is good 436, where a purchaser paid to the after confirmation. Hammann v, guardian the latter 's individual notes Mink, 99 Ind. 279. Confirmation in settlement of his purchase. So, too, of a sale where no deed was executed, Ambleton v. Dyer, 53 Ark. 224. And but the price was paid and possession see post, ch. 9. A collusive gale be- delivered, gives at least an equitable tween administrator and guardian to title. Alexander v. Hardin, 54 Ark. the detriment of the ward and heir, 480. may be avoided by the latter. Cand- 60. Williams v. Schembri, 44 Minn. ler v. Clarke, 90 6a. 550. 250. The guardian's tender of a Eents and profits under an irregn- deed with proper recitals and cove- lar sale must be accounted for when nants should be accepted. the sale is set aside. Ambleton v. 61. Shipp V. Wheeless, 33 Miss. 646 ; Dyer, 53 Ark. 224. Loyd V. Malone, 23 111. 43; Anderson 66. Ex parte Kirkman, 3 Head, 517. V. Layton, 3 Bush, 87. 67. Brenham v. Davidson, 51 CaL 62. Beidler V. Friedell, 44 Ark. 411; 352. See Peabody v. North, 161 Kelly and Another v. Morrell, 29 Fed. Mass. 525, as to other considerationa R. 736. as part of the purchase price. § 942 GUAEDIAN AND WASH. 10V2 guardian is a nullity/' So, too, the sale of a court, contrary to the provisions of a devise, is utterly void,"* and may be void nnless properly entered in some record book.'"" § 941. Disposition of Proceeds. As to the disposition of the proceeds, the guardian's conduct is to be regulated by the terms of his license. If he was per- mitted to sell for the purpose of maintenance and support, the moneys obtained must be so appropriated; if for the payment of certain debts, those debts must be paid; if for investment in other securities, he must invest therein; and, unless the court leave sthe investment to his own discretion, he is bound to invest as it orders. Any other course of conduct will subject him to penalties for breach of his special bond. He is not justified in appropriating the proceeds of the sale for the above objects gen- erally, however reasonable it might be to do so on other consider- ations; but for the particular object contemplated by the court in granting the license. "^ Not even the ward's assent to his dis- position of the proceeds can exonerate the guardian from respon- sibility to other parties immediately interested, for such losses as may occur by reason of his disregard of this rule.'^ 'Hot is his special bond discharged by the fact that he produced the proceeds of the sale in court, and was then ordered to withdraw them; for the guardian and not the court is the proper custodian of the fund.'* Any person not the guardian, authorized to sell in such cases, is held to account in like manner.''* The ward is bound to account to the purchaser for the purchase price used for his benefit where the guardian makes a void sale,'" but the succeeding guardian, need not do so.''* § 942. Confirmation of Sale. In various States confirmation of the sale by the court is not a prerequisite to divesting the ward's title, but in others it appears to be.'^ And a court may refuse to confirm or may set aside a 68. Wells V. SteeMeberg, 50 Neb. 73. State v. Steele, 21 Ind. 207. 670, 70 N. W. 242. 74. Pope v. Jackson, 11 Pick. 113. 69. Rogers v. Dill, 6 Hill, 415. See 75. Touchy v. Gulf Land Co., 45 also Matter of Ellison, 5 Johns. Ch. So. 434. 261 ; Sntphen v. Fowler, 9 Paige, 280. 76. Gentry v. Bearss, 82 Neb. 787, 70. Teagne v. Swasey, 46 Tex. Civ. 118 N. W. 1077 (succeeding guardian App. 151, 102 S. W. 458. need not offer to return purchase 71. Strong v. Moe, 8 Allen, 125. price paid for Toid sale). 72. Harding v. Lamed, 4 Allen, 426. 77. § 939, notes. 1073 SALES OF EEAL ESTATE. § 943 sale because of gross inadequacy of price or other unfairness to the ward's interest.'* Certain defects in a sale, too, are in some States (but not in others) treated as cured by the court's required confirmation of the sale; and this more particularly where it is Bhown that the sale was beneficial to the ward." Where a guardian petitions for the sale of his ward's interest, alleging that a certain cash offer has been received and the sale is confirmed on his return of the receipt of the cash, he is later estopped to deny that he received any cash for the land. To allow euch a claim would be trifling with judicial records made up at the instance of the guardian.*" § 943. Sales in Cases of Non-Residetits. Where a non-resident guardian applied for the sale of real estate in Maine belonging to his ward, also a non-resident, the person authorized in that State to make the sale was ordered to transmit the proceeds to such non-resident guardian; but this would not be the rule in some other States.*^ Statutes have been frequently enacted by which non-resident guardians may sell their ward's lands, on petition to the court having jurisdiction, with an authenticated copy of the letters of guardianship, and compliance with the ordinary formalities of such sales; execuir ing, perhaps, to the court having control of the funds, a bond for their proper application.''' 78. Mitchell v. Jones, 50 Mo. 438. 80. Ee Potter, 249 Pa. 158, 94 Atl. 79. See Emery v. Vroman, 19 Wis. 465, L. E. A. 1916A, 637. €89; Mahoney v. McGee, 4 Bush, 527; 81. Johnson v. Avery, 2 Fairf. 99; Blackman v. Baumann, 22 Wis. 611; contra, Gay v. Brittingham, 34 Md. Pursley v. Hayes, 22 la. 11; Gager 675. V." Henry, 5 Sawyer C. C. 237; Hurt 82. McClelland v. MeClellajid, 7 T. Long, 90 Tenn. 445. Bast. 210. 68 { 944 OVABDIAN AND WABD. 3-074: CHAPTER Vin. THE QUABDIAU'S UIVENTOET AND ACCOUNTS. Section 944. The Guardian's Inventory. 945. The Guardian's Accounts; English Chancery Fraetiee. 946. Accounts; Jurisdiction Over. 947. Accounts; Duty to Bender Accounts. 948. Accounts; When Beqnired. 949. Accounts; Form. 949a. Accounts; Intermediate and Final, Distinguished. 950. Accounts; With What Property Guardian Chargeable. 951. Accounts; Effect of Lapse of Time. 953. Accounts; In Case of Death, &c., of Guardian. 953. Compensation of Guardians in England. 954. Compensation in this Country. 955. Commissions. § 944. The Guardian's Inventory. One of the protate guardian's first duties after his appointment is to file an inventory of the ward's effects. This is a schedule, prepared hy discreet and disinterested persons, and verified by their oath, wherein the amount of the ward's estate, both real and personal, together with the separate items, are duly entered at a just valuation. The inventory serves as the basis of the guar- dian's accounts, and primarily fixes his liability. Here again the statute relative to infants borrows from the long-established practice of the English ecclesiastical courts, with regard to the administration of estates. But one inventory is in general neces- sary; and if subsequent effects come to the guardian's hands, he will place them in his accounts to the ward's credit. It is to be observed that though probate inventories are prima facie evidence of the existence of assets and their true valuation, they are by no means conclusive. And the guardian may show, in rendering his accounts, that he was not chargeable with certain items which therein appeared, or that the just sale of property realized less than its appraised worth ; and he will be credited accordingly. On the other hand, property omitted from the inventory, which comes within the guardian's reach in any manner, should be accounted for, as well as all gains realized over and above the appraisers' valuation. During the long period for which a guar- dian's authority frequently lasts, the inventory may become of 1075 INVENTORY AND ACOOnNTS. § 945 little practical consequence, except as furnishing for himself the starting-point in his system of accoimts, and determining, for the convenience of others interested, the fact and extent of his orig- inal liahility. And as the ward's real estate is to be preserved intact unless a sale is ordered, the guardian's account, like that of an administrator, starts usually in this country with the amount of personal estate according to the inventory, taking into his reckoning only the income and expenditures from the real estate until some sale of land is actually made. If two or more persona under guardianship are interested in different property, or have unequal interests in the same property, separate schediiles ehould be rendered for each.*' An inventory filed by a guardian may be corrected by amend- ment allowed by the court.** § 945. The Guardian's Accounts; English Chancery Practice. The accounts of guardians are in England subject to the direc- tion of the court of chancery. Guardians and receivers who have entered into recognizance as officers of the court are compelled to present their accounts on application made by any person inteT> ested. Such proceedings are by petition, or on motion filed. Eeoeivers are expected to pass their accounts r^ularly, and a guardian is compelled to account by enforcing his recognizance. The common rules as to executors and trustees apply to guar- dians. But unless there is misconduct shown, the guardian need not show specifically how he has used the sum allowed as main- tenance. A receiver's accounts are sometimes examined on ap- plication of strangers. Mr. Macpherson says that there is scarcely a modem instance to be found where an account has been taken from a guardian without suit.*" In like manner, equity treats 83. Matter of Seaman, 2 Paige, An Indiana statute makes the duty of 409; Hooker v. Bancroft, 4 Pick. 50; a guardian to file an inventory im- Masa. Gen. Sts., ehs. 100, 109 ; State perative. Wood v. Black, 84 Ind. 879. V. Stewart, 36 Mis3. 652; Clark v. Summary removal is the penalty for Whitaker, 18 Conn. 543; Puller v. disregard of a court's order to file. Wing, 5 Shep. 222; Green v. Johnson, Ex parte Cottingham's Guardian, 124 3 Gill & Johns. 388; Pogler v. Buck, Ind. 250. 66 Me. 205. And see, as to inven- 84. In re Watson, 51 La. Ann. 1641, tories generally, 1 Wms. Ex'rs, 878- 26 So. 409; Martin v. Sheridan, 46 883; Sehouler, Ex'rs, Part III., ch. Mich. 93, 8 N. W. 722; United States 2. A g^iardian 's sureties are not pre- Fidelity & Guaranty Co. v. Hall (Tex. eluded liy the inventory from showing Civ. App.), 173 S. W. 892. the true ownership of alleged assets. 85. Macphers. Inf. 108; lb., 859, Sanders v. Forgasson, 3 Baxt. 249. 348. § 947 GUAltDIAN AND WARD. 1076 as guardians all persons wlio take possession of an infant's estate, -whether duly authorized to act or not, and obliges such persons to account, on application made by the infant hims'elf, or on his behalf/" § 946. Accounts; Jurisdiction Over. Courts of equity in this country are doubtless authorized to- entertain like proceedings against all quasi guardians.*' But under our statutes probate guardians, duly appointed, are invari- ably made liable to account, in the first instance, to the local court issuing letters of guardianship, which thus becomes, in fact, the general depository of accounts relative to the estates of deceased persons and wards. The immediate jurisdiction over the settle- ment of guardians' accounts is usually, therefore, in the probate court. Rules of equity still prevail to a considerable extent so as to hold guardians accountable on the usual footing of trustees. The cita- tion to render account in the probate court is a summary proceed- ing, resembling the bill in chancery for discovery. § 947. Accounts; Duty to Render Acco^unts. It is the duty of every guardian, whose trust as such is revoked,, to account honestly to the late wards, or to his successor in the trust if there be one, for their estate. Thus, a guardian cannot discharge himself by simply turning over to his successor the lat- ter's note for an individual debt due the guardian and taking a receipt in full ; but he will still be bound in equity to the ward unless he transfers the ward's property, or money in lieu, or good securities, such as are admitted to be proper investments.'* Per- mitting a guardian to resign or removing him is, of course, no judgment that a full settlement and accounting has been had.*' And the collusive appointment of a successor, together with a col- 86. lb., 259; Story, Eq. Juris., § fact, as many American codes should 1195; Morgan v. Morgan, 1 Atk. 489. be construed, until at all events the 87. Chaney v. Smallwood, 1 Gill, ward has reached full age, or a new 367; next chapter. probate guardian is fully clothed -with 88. Sage v. Hammonds, 27 Gratt. his office, and competent to receive 651; Manning v. Manning, 61 Ga. the estate. See as to such decrees, 137; Coles v. Allen, 64 Ala. 98. Lee Cheney v. Eoodhouse, 135 111. 257; f^tate V. Bolte, 72 Mo. 272. Kingsberry et al. v. Hutton et aX., 140 ' 89. King V. Hughes, 52 Ga. 600. 111. 603. No such settlement is practicable, in 1077 INVENTORY AND ACCOUNTS. § 949 lueive settlement, cannot conclude the rights of the defrauded party in interest."" § 948. Accounts; When Required. With probate guardians it is the usual practice to present accounts with vouchers annually, and in some States once in three years if not oftener, or as otherwise directed by the court, the pai^ ties in interest other than the ward having been first cited, unless their approval appears upon the face of the account. The guardian is by law required to render full account of his conduct of the ward's estate usually annually." Under a statute requiring accounts to be presented annually it is no objection that the first account was filed before the expiration of a year from the appointment,*^ although his failure to render accounts promptly does not of itself render him responsible."' § 949. Accounts; Form. The account should be itemized and with r^ard to chronological sequence. The account is considered by the court and passed after due examination, upon the oath of the guardian. The vouchers are retained by the guardian, but the account is recorded and filed in the court.** All items are not necessarily proved by vouchers ; small charges may be allowed on the guardian's oath; and oral proof is fre- quently admissible as in the settlement of other probate accounts. In the settlement of a guardian's account, the disposition is to adjust items without resort to a circuity of litigation that is prac- tically needless.*" 90. Ellis V. Seott, 75 N. C. 108; 93. Cnrtis ▼. Devoe, 121 Cal. 468, Manning v. Manning, 61 Ga. 137. 53 P. 936. 91. See Curtis v. Bevoe, 121 Cal. 94. As to the effect of annual set- 468, 53 P. 936. See Powell v. Powell, tlements where the public records have 52 Mich. 432, 18 N. W. 203 (undue been destroyed, see Kidd v. Guibar, haste in settling guardian's accounts 63 Mo. 342. The contents may be not favored) ; Empire State Surety proved by parol. 76. The guardian 's Co. V. Cohen, 156 N. T. S. 935, 93 final account should purport on its Misc. 299; In re Troy, 152 P. face to be such. Bennett v. Hanifin, 103, recall of mandate denied, 158 87 111. 31. While in force it is an P. 172 ; Aleon v. Koons, 42 Ind. App. adjudication of the matters lawfully 537, 82 N. E. 9^ (every two years) ; embraced therein. Briscoe v. John- Driskill v. Quinn (Okla.), 170 P. son, 73 Ind. 573. 495 (even after guardian removed he 95. Cutts v. Cutts, 58 N. H. 602. mnst settle his accounts). As to reopening administration ac- 92. In re Harden 's Estate, 146 Cal. counts, see Denholm v. McKay, 148 73, 79 P. 588. Mass. 434. § 949a GUABDIAH AND WAED. 1078 The acxiount should show the dates of the items,*' and bills paid for medical services are sufficiently itemized where the payee, the nature of the services rendered and the dates of payment are given.*' Valuations should be reduced to the lawful standard of currency,** and the court will not be captious over slight irregu- larities of form where it appears that the guardian honestly dis- charged his duties and finally accounted fully and satisfactorily.** The guardian may correct mistakes, but not dispute his ward's rights at pleasure.^ The accounts should be accurate in debits and credits, and inaccuracies are coiTected.^ The accounts of wards having different and unequal interests in property should be kept distinct and rendered separately.* But the fact that a guardian of two wards invested on their joint account without distinguishing their several interests is no reason why the investment should be disallowed, if sufficiently for each ward's benefit.* In some States the guardian's final account must embrace all items contained in his prior accounts, and not begin with the balance on the last one; but the practice in this respect is not uniform in the United States, and full prior accounts on file might well be considered in the final connection.^ § 949a. Accounts; Intermediate and Final, Distinguished, An important distinction is observable in the American practice concerning the accounts of probate guardians, between the final account and those rendered from time to time, as the local practice 96. Sueceasion of Guillebert, 133 tie to himself. Carter v. Edmonds, La. 603, 63 So. 237. 80 Va. 58. 97. In re Hayden's Estate, 146 2. An honest error which charges Cal. 73, 79 P. 588. the guardian twice for the same fund 98. See McFarlane v. Bandle, 41 should be corrected. 85 Ga. 542. Or Miss. 411 ; Neilson v. Cook, 40 Ala. an honest omission. Purslow v. Brune, 498. 43 Kan. 175. And see Euble y. Helm, 99. La FoUette v. Higgins, 129 57 Ark. 304. Ind. 412. 3. Armstrong v. Walknp, 9 Gratt. 1. Be Steele, 65 HI. 322. Costs in 372; State v. Toy, 65 K. C. 265; a suit not connected with the guar- Hescht v. Calvert, 32 W. Va. 215; dianship cannot be charged. Carrie § 370. A consolidated account for Allen, 40 N. J. Eq. 181. As to com- several wards having unequal interests pensation of a special guardian who should be rejected by the court. Crow defends an infant's interest in the v. Reed, 38 Ark. 482; Wood v. Black, probate of a will, see Matter of Will 84 Ind. 279. of Bud Long, 100 N. Y. 203. The 4. Nance v. Nance, 1 8. C. (N. S.) guardian of a lunatic may include in 209. his account a debt due from the luna- 5. Foltz's Appeal, 55 Pa. St. 428. 1079 INVENTORY AND ACCOUNTS. § 949a may require, pending the minority of tlie ward. The rule is that these intermediate accounts, although judicially approved and passed, are by no means conclusive. They serve to show the guar- dian's liability and to keep the court informed of the general condition of the trust funds, to determine when the guardian's bond should be increased, and to ascertain as to the propriety of salee and investments. Such accounts remain prima facie evidence of the sum of the guardian's indebtedness to his ward, and are prima facie correct accounts but nothing more." Actual notice to the ward by citation is not indispensable to intermediate accounts.' The decree of the court allowing a partial account, wherein an item is omitted or improperly stated, does not relieve the guardian from liability for the error on his subsequent accounts. He must make the necessary correction as soon as possible. At any time before final settlement and discharge of the guardian ex parte orders made by the court may be set aside, corrected, and modi- fied ; though they may not be collaterally attacked,* and the guar- dian may correct an erroneous charge he has made against himself." The mere fact that the several current reports filed by the guardian of an insane person were approved by the court ex parte does not prevent action by the ward attacking the investments shown on the accounts. Such ex parte orders may at any time be set aside, corrected or modified, if the requirements of justice demand it.^* But on the final account of the guardian, which is to be rendered at the expiration of his trust, the question comes before the court as to the general fairness of his management, and items allowed in former accounts may then be stricken out as improper. The reason of this is that the cestui que trust had no earlier opportunity of judging as to the correctness of the trustee's accounts, and ascer- taining that final balance, which is, after all, the estate in con- troversy. So, too, a guardian in his final account should be allowed to correct errors to his prejudice, satisfactorily proved to The last of the periodical accounts tacking them after their acceptance may sufSce. Woodmansie v. Wood- by the court. Turner v. Turner, 104 mansie, 32 Ohio St. 18. N. C. 566; Bentley v. DaUey, 87 Ala. 6. Douglas's Appeal, 82 Pa. St. 406. 169; Bourne v. Maybin, 3 "Woods C. 7. Davis v. Combs, supra. 0. 724; Ashley T. Martin, 50 Ala. 537; 8. State v. Wheeler, 127 Ind. 451. Matlock V. Eice, 6 Heisk. 33 ; Davis 9. Ferry v. MeGowan, 68 Mo. App. V. Combs, 38 N. J. Eq. 473 ; State v. 612. Jones, 89 Mo. 470; Jenkins v. Whyte 10. Indiana Trust Co. v. GriflSth, & Horwitz, 62 Md. 427. But even 176 Ind. 643, 95 N. E. 573, 44 L. E. thus, the burden is on the party at- A. (N. S.) 896. § 949a GUAEDIAN AND WAED. 1080 exist in his prior accounts, both as to matters of form and sub- stance/' A guardian's final account should cover the entire period of the guardianship where the intermediate reports are incomplete,^* and should make full disclosure." The final account must be rendered when the guardianship terminates,'* or when the ward becomes of age.'" It would appear that a guardian cannot be cited to render a final account before the ward's majority, unless his trust has been first determined ; and that his balances should, in such case, be paid to a successor and not to the court.'" Th« guardian should be prepared to sustain by satisfactory proof the items which indicate his dealings with the estate. But the final account, once examined and approved by the court, and not reversed on appeal, the ward's period of objecting to the same having also expired by limitation, such account, together with all which preceded it, concludes all parties interested, inclusive of the guardian and his own representatives, as to all matters involved in the settlement, and cannot be reopened or annulled in any court: certainly not unless by direct proceedings to obtain a reversal, or setting aside for fraud or manifest error : perhaps in some States not at all." The final account is not allowed by the court, at the 11. Crump V. Gerock, 40 Miss. 765; v. Penny, 66 W. Va. 660, 66 S. B. Burnham v. Balling, 1 C. E. Green, 1003. 144; Willis v. Fox, 25 Wis. 646; 15. Miller v. Ash, 156 Cal. 544, 105 Blake v. Pegram, 101 Mass. 592; P. 600; Curran v. Abbott, 141 Ind. Brewer v. Ernest, 81 Ala. 435. 492, 40 N. E. 1091, 50 Am. St. Eep. 12. Elli3 V. Soper, 111 la. 631, 82 337; Succession of Guillebert (La. N. W. 1041; Duffy v. McHale, 35 1906), 41 So. 654; Probate Judge v. E. I. 16, 85 A. 36 (annual partial Stevenson, 55 Mich. 320, 21 N. W. account is not a final account). 348. 13. Euler v. Euler, 55 Ind. App. 16. Hughes v. Bingstaff, 11 Ala. 547, 102 N. E. 856; In re Moore, 564; Lewis v. AUred, 57 Ala. 628. 112 Me. ligf, 90 A. 1088; Sroufe v- 17. Bonyton v. Dyer, 18 Pick. 1; Sroufe, 74 Wash. 639, 134 P. 471. Diaper v. Anderson, 37 Barb. 168; 14. National Surety Co. v. State, 181 Manning v. Baker, 8 Md. 44 ; Allman Ind. 54, 103 N. E. 105; Pattison v. v. Owen, 31 Ala. 167; Reynolds v. Clingan (Miss. 1908), 47 So. 503; Walker, 29 Miss. 250; State v. Whitfield V. Burrell, 54 Tex. Civ. App. Strange, 1 Cart. 538; Stevenson's 567, 118 S, W. 153; Buckley v. Herder Appeal, 32 Pa. St. 318; Cummlngs \. (Tex. Civ. App. 1911), 133 S. W. Cummings, 128 Mass. 532; Holland 703. V. State, 48 Ind. 391; Kattlemen v. For the purposes of settlement a Estate of Guthrie, 142 111. 357; Brent guardianship is deemed to continue v. Grace, 30 Mo. 253 ; Seaman v. Dnr- after it has in law ceased. Mitchell yea, 1 Kern, 324; Teager's Appeal, 1081 IWVENTOKT AND ACCOUNTS. § 950 ward's majority, until the ward lias had the opportunity of exam- ining it." But on the termination of a guardian's trust, pending the infancy of the ward, a final account is sometimes allowed after due notice to all parties interested, and examination by a suitable guardian ad litem on the ward's behalf; and thus, too, may it be with an intermediate account; not, however, as it would usually appear, eo as to absolutely debar the ward from disputing the account afterwards on reaching majority.^* § 950. Accounts; With What Property Guardian Chargeable. The accounting should cover only the dealings of the guardian while in office,''" and should terminate with the expiration of the trust ; since the relation is in other respects as between debtor and 34 Pa. St. 173; Lynch v. Rotan, 39 111. 14; Smith v. DaVia, 49 Md. 470. Similar rules apply often, as in set- tlements by executors and adminis- trators. Irregular allowance of a gnardian 's account upon an alteration, and the discharge thereupon of the gnardian, all without notice to the ward, cannot be permitted to deprive the latter of his rights. Buchanan v. Grimes, 52 Miss. 82. The administra- tor of a deceased ward cannot ignore a final settlement of the guardian's accounts, duly made and recorded, and cause another decree to be en- tered in the same court. Fouat v. Chamblee, 51 Ala. 75. Nor can the deceased guardian's representative. Kattleman v. Estate of Guthrie, 142 111. 357. When the guardian's settlement is surcharged in equity, the particular items ob- jectionable should be specified. Tan- ner V. Skinner, 11 Bush, 120; Moore V. Askew. See 85 N. C. 19^. Matters only collaterally introduced into the settlement, or which did not properly enter into the accounts, or over which the court had no jurisdic- tion, are not concluded by the final account. v. , 103 Mo. 402. Though even as to possibly emitted or improper items within the fair scope of settlement, such account cannot be reopened. Tb. But while the probate settlement is considered final and conclusive, yet where the guardian fraudulently and intention- ally concealed the existence of prop- erty to which his ward was entitled, the probate settlement will not deoar a court of equity from calling the guardian to account for such assets. Lataillade v. Orena, 91 Cal. 565. The final settlement must be a bona fide and not a colorable one with false vouchers. State ex rel. Hospes v. Branch, 112 Mo. 661. As to appeals and the costs of ap- peal, see Kingsbury v. Powers, 131 HI. 182. 18. Woodbury v. Hammond, 54 Me. 332; Whitney v. Whitney, 7 8. & M. 740. 19. See Smith, Prob. Pract. 182; Eacouillat v. Eequena, 36 Cal. 651; Blake v. Pegram, 101 Mass. 592; 592; Jones v. Fellows, 58 Ala. 343; Hutton V. Williams, 60 Ala. 133. A final settlement with minor wards should not precede resignation. Glass V. Glass, 80 Ala. 241. 20. Gaspard v. Coco, 116 La. 1096, 41 So. 326; In re Wolfe, 136 N. T. S. 333, 75 Misc. 454 (not money received after ward's death). § 950 GTJAEDIAN AND WAED. 1082 creditor.''^ Wiere no effects have come to the guardian's posses- sion or knowledge, he need not file either imventory or account ; " but so soon as there is property his liability becomes fixed; and he cannot be exempted from account on the ground that the ward's estate does not more than balance his own outlays and expenses. The guardian must account for all property he receives as such whether he should have had it or not.^^ Services of the ward rendered to the guardian are assets of the estate which should be accounted for.^* At common law a father is required to account for the rents and profits of property which he has given his minor children by way of advancement and of which he retains possession during his minority.^' If notes are inventoried and the guardian's accounts do not charge him therein with the interest thereon, or credit him with their loss as worthless, the presumption is that he has embezzled the property or else neglected to make collections ; and in either case he is chargeable for the full amount.** The ward cannot be forced to receive in settlement a building placed by the guardian on the ward's property,*' but the guardian may be credited with a debt incurred by the ward to him before the guardianship began unless the debt is barred by limitations.*' And where he or any other trustee claims credit, upon settling his account, for moneys expended, losses, or charges, the onus of proving the correctness of the credit, by vouchers or otherwise, devolves on him.*' The guardian cannot exonerate himself by paying the funds of the estate to the probate judge even after settlement of his accounts, but is bound to pay to the ward.*" 21. Cunningliam v. Cunniagham, 4 25. Ehea v. Bagley, 63 Aifc 374, Gratt. 43; Crowell's Appeal, 2 Watts, 38 S. W. 1039, 36 L. E. A. 86. 295. 26. Starrett v. Jameson, 29 Me. 22. McGale v. McGale (1894), E.I. 504. 23. Porter v. Fillebrown, 119' Cal. 27. Sims v. Billington, 50 La. Ann. 235, 51 P. 322 ; In re Camp, 161 N. T. 2083, 24 So. 637. 651, 57 N. E. 1105. See Gatlin v. 28. Bondie v. Bourassa, 46 Mich. Lafon, 95 Ark. 256, 129 8. W. 284 321, 9 N. W. 433. (rent of homestead). See Bliss v. 29. Matter of Gill, 5 Thomp. & C. Spencer (Va.), 99 S. E. 593 (guar- 237; Newman v. Eeed, 50 Ala. 297; dian not charged with money value of Hutton v. Williams, 60 Ala. 133 ; The property never converted into money). State ex rel. Wiseman et al. v. 24 Aekermann v. Haumueller, 148 Wheeler et al., 127 Ind. 451. Mo App. 400, 427, 128 S. W. 51, 56; 30. Jaeobson v. Anderson, 72 Minn. Champlin v. Slocum (E. I.), 103 A. 426, 75 N. W. 607. 706. 1083 INVENTORY AND ACCOUNTS. § 952 § 951. Accounts; Effect of Lapse of Time. Gkiardiaiis sometimes make settlements out of court, rendering no returns; but this practice is not common where the infant's €state is large; nor is it safe, since the failure to account is a breach of the guardianship bond, and renders the sureties and the guardian himself liable. Any party in interest may compel the guardian to present his accounts years after the guardianship is at an end, notwithstanding he has a receipt in full from the ward; for no mere lapse of time can be set up against a trust, except that the usual limitation to suits on specialties might determine the remedies of parties aggrieved as against the guardian and his sureties.*^ But lapse of time, taken in connection with other cir- cumstances showing a due execution of the trust, will be favorably regarded ; and the guardian's account need not then be so strictly made up and proved as would be otherwise necessary, especially when the parties interested are satisfied.*^ § 952. Accounts; In Case of Death, etc., of Guardian. Where the same person is both the executor of the parent's estate and guardian of the infant heir, he should first settle his executor's account, and then transfer the balance by way of distributive share to the account of guardianship.^' Accounts of joint guardians may generally be rendered on the oath of one of them.'* Where a guardian, dies, resigns, or is removed, his final account must be presented, and it is the successor's duty to see that the former guardian is held to a strict compliance with his bond ; since other- wise he may make himself liable to the ward.'' The final account of a deceased guardian is properly presented by his personal repre- sentatives, who may be cited into court for that purpose; but for a deficit beyond the actual assets in their hands the sureties must answer." Hence the administrator of a deceased surety has been 31. Clarke v. Clay, 11 Fost. 393; 14; State v. Tunnell, 5 Harring. 94; Bard v. Wood, 3 Met. 74; Crane v. Runkle v. Gale, 3 Halst. Ch. 101; Barnes, 1 Md. Ch. 151; "Wade v. Lob- Huggins v. Blakely, 9 Eich. Eq. 408. dell, 4 Cush. 510; Gilbert v. Guptill, See Mcintosh's Estate, 158 Pa. St. 34 HI. 112. See next chapter. 525, where a guardian collected assets 82. Gregg v. Gregg, 15 N. H. 190; of the deceased. Pierca v. Irish, 31 Me. 254; Smith v. 34. See Mass. Revised Laws, ch. Davis 49 Md. 470; Eawson v. Cor- 150, § 18. As to blending accounts bett 150 m. 466. as guardian and trustee, see Lewis v. 33. Conkey v. Dickinson, 13 Met. Allred, 57 Ala. 638. 51; Mattoonv. Cowing, 13 Gray, 387; 35. Sage v. Hammonds, 28 Gratt. O'Hara v. Shepherd, 3 Md. Ch. 306; 651. Crenshaw v. Crenshaw, 4 Eich. Eq. 38. Gregg v. Gregg, 15 N. H. 190; § 954 GUAEDIAN AND WABD. 1084: sometimes permitted to supply the missing final account.'^ The administrator of a deceased guardian cannot invest the ward's funds ; nor can he discharge the guardian's general indehtednese by setting apart certain effects of the guardian's estate for that purpose.^' Where a guardian absents himself and has left an attorney in charge of the estate, such attorney may, in Pennsyl- vania, be summoned by the court.^' § 953. Compensation of Guardians in England. One rule has always prevailed in England as to the compensation of executors, guardians, and other trustees ; namely, that the eer- vices rendered should be treated as honorary and gratuitous. Chancery makes no allowance of any sort beyond a reimbursement for the necessary expenses actually incurred. However much the honor of being trusted may be deemed a fair equivalent for the guardian's time, trouble, and responsibility, it is not found to suffice for receivers and other officers of the court of chancery, whose fees may in some measure tend sensibly to diminish the ward's sense of gratitude to the custodians of his fortune. It is found necessary to allow compensation to trustees in some of the British colonies, in order to induce suitable men to accept office; and even in the English courts at the present day there is a strong inclination to multiply exceptions to the general rule. Considera- tions of policy are alleged in support of the established doctrine of chancery; but the arguments seem not unanswerable. § 954. Compensation in This Country. In this country compensation is allowed the guardian, while the probate court fees are usually trifling in comparison, and it does not appear that the English rule as to the gratuitous services of trust officers was ever adopted in a single State.*" In this country- Eoyston v. Eoyston, 29 Ga. 82; Peck Cal. 228. Simple interest is enough V. Braman, 2 Blackf. 141; Waterman to charge a deceased guardian's ea- V. Wright, 36 Vt. 164; Farnsworth tate from the date of hia death. Me- V. Oliphant, 19 Barb. 30 ; State v. Kay v. McKay, 33 W. Va. 724 ; § 354. Grace, 26 Mo. 87 ; Hemphill v. Lewis, 37. Curtis v. Bailey, 1 Pick. 198. 7 Bush, 214; Tudhope v. Potts, 91 38. Moorehead v. Orr, 1 S. C. (N. Mich. 490. Nor can such surety al- S.) 304; Clark v. Tompkins, 1 S. C. lege waste on the part of the guar- (N. S.) 119. dian's administrator, as against the 39. Petition of Getts, 2 Ashm. 441. ward. Huhphrey v. Humphrey, 79 40. 2 Wms. Ex'rs, 1682-1685, and N. C. 396. As to rendering account cases cited. In some parts of this when guardian, died long after his country custom or the local law has ward's majority, see In Be Allgier, 65 established a commission as the guar- 1085 INVENTORY AND ACCOUNTB. § 954: tne allowance of compensation to guardian for services rendered dian's compensation. In others the statute allows what the court may deem just and reasonable. The eom- miasion allowed the guardian has varied, according to different decisions and under special circumstances, all the way from one to ten per cent., which last may be considered the maximum. Eolcombe v. Holcombe, 3 Beasl. 415; In re Harland's Ac- counts, 5 Eawle, 323; Walton v. Er- win, 1 Ired. Eq. 136; Armstrong v. Waltup, 12 Gratt. 608. In New York the rule established for trustees is five per cent, on sums not exceeding o-ne thousand dollars; half that amount upon all sums between that and five thousand dollars; and one per cent, on all sums exceeding that amount. Matter of Eoberts, 3 Johns. Ch. 43. And this rule practically ob- tains in many other States. One half the commission is reckoned for sums received, and one half for sums dis- bursed. They are to be computed by a guardian at the foot of partial ac- counts or about the time of actual receipt and disbursement, and not "When they are brought forward upon hia final account. Buffer's Appeal, S Grant, 341; Vanderheyden v. Van- derheyden, 2 Paige, 287. Where com- missions at the court's discretion are allowed, special services performed by the guardian may be considered in fixing the rate of commission, but not as an additional charge. Tet it is justly observed in a Pennsylvania ease, that since the guardian is a trustee for custody and management, and not, like an executor, merely for distribution, what is allowable to the one may not always suffice for the other. MeElhenny's Appeal, 46 Pa. St. 347. Even in New York the un- fairness of an inflexible rule, applica- ble to all who hold trust moneys, led to the assertion of a doctrine in one ease, which threatened to disturb the chancery rule; namely, that services of a professional or personal char- acter, rendered the ward, may be al- lowed to the guardian, besides the usual commission, on the ground that they were rendered not a guardian but as an individual. Morgan v. Morgan, 39 Barb. 20. But see Morgan v. Hannas, 49 N. Y. 667. In Maine, Massachusetts, and other States, where the court allows what is reason- able, the guardian may charge specific sums for special services, instead of or in addition to a commission, pro- vided the whole does not exceed a fair rate of compensation. Longley V. Hall, 11 Pick. 120; Eathbun v. Colton, 15 Pick. 471; Emerson, Ap- pellant, 32 Me. 159; Dixon v. Homer, 2 Met. 420; Eoach v. Jelks, 40 Miss. 754; Evarts v. Nason, 11 Vt. 122. The ordinary commission is properly refused for disbursement of the guar- dian's final balance to the ward, and his receipt of the original fund; nor is it allowable on the principal in mere reinvestments. Commissions may be forfeited by the guardian's mis- conduct; as where the fund was em- ployed in his own business; or where he was removed from his trust; but not, in some States, for the mere omission to account until cited in. Clerk hire is properly charged as an expense to the estate in cases of mag- nitude and difficulty, where such as- sistance is required. Vanderheyden V. Vanderheyden, 2 Paige, 287; Knowlton v. Bradley, 17 N. H. 458; Trimble v. Dodd, 2 Tenn. Ch. 500; Starrett v. Jameson, 2ff Me. 504; Eoyston v. Eoyston, 29 Ga. 82; Ma- gruder v. Darnall, 6 Gill, 269; Eeed V. Eyburn, 23 Ark. 47; Neilson v. Cook, 40 Ala. 498 ; Bond v. Lockwood, 33 HI. 212. See § 350 as to a col- lector. Commissions are propertly credited at the time the money was received. Snavely v. Harkrader, 29 Gratt. 112. Cf. May v. May, 109 Mass. 352. A guardian who is also trustee should not ba allowed full commissions on both his guardian and § 954 GUARDIAN AIN'D WABD. lose is withm the discretion of the court,*^ having in mind that liis services are personal and honorary and not undertaken with a view of profit." Compensation may he refused where the guardian fails to account as ordered,** or acts beyond his authority/* or where no services were rendered.*" l^o compensation will be allovred where the guardian is guilty of negligence or wrongdoing in the man- not to deprive one of compensation. Small's Estate, 144 Pa. St. 293. 41. France v. Shoekey, 92 Ai'k 41, 121 S. W. 1056 Luke v. Kettenbach (Ida.), 181 P. 705 (not on commis- sion basis) ; Trustees of Elizabeth Speers Memorial Hospital v. Makib- ben's Guardian, 126 Ky. 17, 102 8. W. 820, 31 Ky. Law Eep. 467; HogaV Estate V. Look, 134 Mich. 34, 96 N. W. 439, 10 Det. Leg. N. 473; In re Switzer, 201 Mo. 66, 98 S. W. 461 ; Switzer v. Switzer, Id.; In re Steele's Estate, 97 Mo. App. 9, 70 S. W. 1075; In re Cook's Guardians (N. J. Prerog.), 105 A. 792; In re Thaw, 169 N. T. S. 430, 182 App. Div. 368; In re Eutherford's Estate, 170 N. T. S. 1039, 103 Misc. 659; Anderson v. SUeor, 82 8. C. 109, 63 8. E. 128 (ei- tia compensation) ; Turner v. Turner, (Teun. Ch. App. 1901), 62 S. W. 607. See In re Tilden's Estate, 172 N. T. S. 811 (compensation for appearance in court limited to costs). 42. Gott V. Gulp, 45 Mich. 265, 7 N. W. 767. 43. See Gilligan v. Daly, 79 N. J. Eq. 36, 80 A. 994 (delay which is not unreasonable will not forfeit com- pensation). See Rogers v. Lindsay, 89 Kan. 417, 131 P. 150 (mere mis- takes in accounts not fraudulent will not forfeit compensation). 44. May v. Skinner, 149 Mass. 375, 21 N. E. 870 (charge for superintend- ing building stable for ward disal- lowed) ; Maxwell v. Harkleroad, 77 Miss. 456, 27 So. 990 (dealing with lands in another State). 45. In re Brigg, 165 N. Y. 673, 59r N. E. 1119 (where no estate vested in wards durings guardianship). trustee accounts, where the perform- ance of double services is merely nominal. Blake v. Pegram, 101 Mass. 592. Only on sums actually collected and paid out should a guardian charge commissions. Eeeds v. Timmins, 52 Tex. 84. Vouchers are not needed to sustain items of this character. New- man V. Eeed, 50 Ala. 297. See Foster V. Ives, 53 460. A guardian wiU not be allowed com- pensation for taking care of the trust fund while he himself is the borrower of it. Farwell v. Steen, 46 Vt. 678. And see Pierce v. Prescott, 128 Mass. 140. As to compensation for chang- ing investments, repairs, etc., it is not good policy to allow it by way of a commission. May v. May, 109 Mass. 252. Guardian allowed to charge spe- cial fees for collecting a pension for his ward. Bickerstaff v. Marlin, 60 Miss. 509; Southwick v. Evans, 17 E. I. 198. Commissions not allowed on a fund of ward employed in guar- dian's own business, though advan- tageously employed. Seguin's Ap- peal, 103 Pa. St. 139; cf. Carr v. Askew, 94 N. C. 194. Compensation for maintenance does not deprive nec- essarily of commissions. 14 Phil. 3, 9. See, further, Phillips v. Lockwood, 4 Dem. 299. Eemissness in duty is an objection to the allowance of commis- sions. Hume v. Warters, 13 Lea, 554. And where one collects money, uses it, and renders no account until com- pelled to, he may be charged with in- terest and otherwise sternly dealt with. In re Eschrich, 85 Cal. 98. But making a doubtful investment which turns out beneficially ought 1087 INVENTOBY AND ACCOUNTS. § 955 agement of the estate of the ward,*" as where lie mingles the funds with his own and uses them for his own benefit.*' § 955. Commissions. In eome States the guardian is entitled to commissions** on interest made*" on the net amount of sales"" and on all other sums which pass through his hands.°^ ISTo commissions will he allowed if the guardian has failed in his trust/^ as where he uses the funds of the estate for his own purposes,"* and commissions will not be allowed on commissions paid by the guardian to himself."* A 46. Donlon v. Maley, 110 N. E. 98; In re Moore, 112 Me. 119, 9fl A. 1088; Finnel v. Kellogg (Mo. App.), 186 S. W. 1169; State ex rel. Short v. Hardy (Mo. App.) 206 S. W. 904; In re AUard, 49 Mont. 219, 141 P. 661; Seheib v. Thompson, 23 Utah, 564, 65 P. 499'; In re Pierce's Estate, 68 Vt. 639, 35 A. 546. 47. Glassell v. Glassell, 147 Cal. 510, 82 P. 42; Kobords v. Bryan, 105 Mo. App. 249, 79 S. W. 979; Jennings v. Jennings, 22 Grat. (Va.) 313; In re Anderson, 97 Wash. 688, 167 P. 71. 48. In re Tutorship of Eatcliffe Minors, 139 La. 996, 72 So. 713; Bass V. Maxwell, 77 Miss. 117, 25 So. 873 (ten per cent, of personal es- tate) ; Maxwell v. Harkleroad, 77 Miss. 456, 27 So. 990; State ex rel. Tygard v. Elliott, 82 Mo. App. 458 (not on amount paid widow for rent of dower land) ; Keeney v. Henning, 64 N. J. Eq. 65, 53 A. 460 (though guardian did not keep full accounts) ; Freedman v. Vallie (Tex. Civ. App. 1903, 75 S. W. 322 ; Kester v. Hill, 46 W. Va. 744, 34 S. E. 798 (on money included in return to court). 49. Hedges v. Hedges (Ky. 1902), 67 8. W. 835; Sims v. Billington, 50 La. Ann. 968, 24 So. 637; In re Cook'3 Guardianship (N. J. Prerog.), 107 A. 818 (not on interest already accrued on securities at time of purchase) ; In re Chenery's Estate, 152 N. Y. S. 312, 89 Misc. 680. 50. Succession of Hargrove, 9 La. Ann. 505. 51. Beakley v. Cunningham, 181 8. W. 287 (not on amount paid over on final settlement) ; Commonwealth v. Graves County Banking & Trust Co., 159 Ky. 455, 167 S. W. 411 (five per cent.); Bell v. Bell's Guardian, 167 Ky. 430, 180 S. "W. 803 (five per cent.) ; In re Hill's Estate, 250 Pa. 107, 95 A. 426; In re Mosley's Es- tate, 91 S. C. 557, 75 S. E. 179. 62. Eowe V. Sanford, 74 Mo. App. 191; In re Marcy, 24 N. J. Eq. 451; Martin v. Porter, 53 N. T. 8. 186, 32 App. Div. 602; In re Nowak, 78 N. T. S. 288, 38 Misc. 713; In re Ward, 98 N. Y. S. 923, 49 Misc. 181; In re Kashner's Estate, 15 Pa. Super. Ct. 70; Appeal of McMena- min, 4 Walk. 285 (commission for- feited only if acted dishonestly) ; American Surety Co. of New York V. Hardwiek (Tex. Civ. App.), 186 8. W. 804; Bliss V. Spencer (Va.), 99 S. E. 593. See Spies v. Stikes, 112 Ala. 584, 20 So. 959 (guardian entitled to commission though has failed to render account, unless in- jury to estate resulted). See Fisher V. Brown, 135 N. C. 198, 47 8. E. 398 (where guardian made regular returns, he is entitled to commissions though he wrongfully used money in, his own business, charging himself with interest thereon). 53. Blake v. Pegram, 109 Mass. 541. 54. GrifBn v. Collins, 125 Ga. 159, 53 8. E. 1004. § 955 GUARDIAN AND WARD. 1088 guardian cannot take annual rests in liis accounts so as to allow him commissions at full rates on the balance thus found."" A statute allowing a guardian to charge a commission on " revenues " does not allow a commission on rents that were earned before the property was inherited though collected by the guar- dian during his administration. Neither does it include dividend* on stock of the estate which represented the proceeds of the sale of the property of the corporation. Revenue or income is what is produced by capital without impairing the capital. What is taken from the capital cannot be considered revenue or income.*' 55. In re Decker, 76 N. T. S. 315, 5G. Be Eatcliffe, 139 La. 996, 7t 37 Misc. 527. So. 713, L. E. A. 1917C, 188. 108ft THs quakdian's bond. § 956 C5HAPTEK IX. THK guardian's BOND. BEOnoir 956. Guardian's Becognizance ; Receiver, &e.; Knglish Chaneerj Rule. 957. Ameriean Eule; Bonds of Probate and Other Guardians. flfSS. Liability of Guardian and Sureties. 959. The Same Subject. 960. Special Bonds in Sales of Eeal Estate. 961. Suit on the Guardian's Bond for Default and Misconduct. 962. VaUdity of Bond. 963. Accounting as Prerequisite. 964. Accounting is Conclusive. 965. Sureties Held on Breach Occuring while Bond Outstanding. 966. Sureties on Different Bonds. Special Bonds. 967. Por what Acts of Guardian is Surety Liable. 968. Interest, Costs and Penalty. 969. In what Capacity Guardian Acting. 970. For what Property Sureties Liable. 971. Duty of Sureties as to Estate. 972. Surety Taking Collateral. 973. Contribution Among Sureties. 974. Subrogation of Sureties. 975. Limitation of Action. 976. Effect of Fradulent Settlement with Ward. 977. Ward's Eight to Impeach Fraudulent Transfers. 978. Eelease of Sureties. § 956. Guardian's Recognizance; Receiver, &c.; English Chancery Rule. It is the practice of the English court of chancery to require chancery guardians appointed on petition without suit to enter into recognizance to account. "When reference is made to a master on the original petition for guardianship, he is directed to make a report approving of the security offered as well as of the person desiring the appointment. On this report the court proceeds to act. A recognizance with sureties is usually taken ; but the court uses its discretion ; and sometimes the personal recognizance of the guardian is deemed sufficient. This recognizance is vacated when the infant comes of age. No recognizance in modem practice is required from the guardian of the person who is appointed where the infant has been made a ward of chancery during the pendency of a suit. IvTor is it given by guardians selected by the court for special purposes; as, for instance, to give formal consent to an 69 § 957 GUARDIAN AND WAHD. 1090 infant's marriage under Lord Hardwicke's act. In a word, the chancery rule appears to be that guardians of the estate give se- curity for the performance of their trust, but guardians of the person none. Special circumstances may, however, arise for re- quiring recognizance from the latter."' Since the active management of the infant's estate is frequently intrusted to a receiver, selected as an officer of the court, the latter is also bound to aecoimt annually and pay his balances into court. For performance of these duties he gives proper security ; and he is allowed a salary for his services." § 957. American Rule; Bonds of Probate and Other Guar- dians. In this coimtry, as we have seen, most guardians of the estate are what may be termed probate guardiane, deriving their au- thority under the appointment of courts which most resemble the old ecclesiastical courts of England. The practice which has grovTn up in most of the States, as well as our statute law, places guardians, therefore, in many respects, on the same footing as executors and administrators. Like such officers they give bonds, file inventories, and render regular accounts to the court; and the same principles which apply to the one class, in these re- spects, apply also to the other. But as these three requirements have main reference to the ward's property, little or no practical necessity exists for pursuing a guardian who neglected to qualify or file inventory or account where there were no assets of the infant. A probate guardian, before receiving from the court his letters of appointment, is obliged to give bond, with good security, for the faithful performance of his trust.*** As siich guardian is in- trusted with both the person and estate of his ward, the language of his bond should be framed accordingly. In some States the statute prescribes the terms substantially as follows : To make a true inventory of the ward's estate which shall come to his posses- sion or knowledge ; to manage the property according to law and 57. Maephers. Inf. 108, 348, 553; be considered actual guardian until 2 Kent, Com. 227. he files a statutory bond. Hatch et 58. Maephers. Inf. 266. As to chan- al. v. Ferguson et al., 57 Fed. 966. eery practice in New Tork, see In re But where letters issue reciting that Morrell, 4 Paige, 44; Minor v. Betts, bond has been given, it will be pre- 7 Paige, 596. sumed that the bond was filed though 58. No one should receive letters or it cannot be found. McGale v. Me- 1091 THE GUAEDIAN's BOND. § 957 the best interests of the ward, and to discharge his trust faithfully in relation thereto ; to render regular accounts to the court ; and, finally, to make due settlement with the ward or other person law- fully entitled at the expiration of his trust. The bond, in case of an infant, stipulates for a faithful discharge of duties as to custody, education, and maintenance; but where the ward is an adult in- sane person or spendthrift, for custody and maintenance only.'" The penal amount of the guardian's bond, as in other cases, is usually fixed at double the amount of the estate to be accounted for. The sureties are to be approved by the court. When such sureties are insolvent or the penal sum named in the bond is in- sufficient, or from any other cause the bond becomes unsatisfactory, a new bond may be ordered with such security as the court deems proper. This bond is made payable to the judge or his successors in office, and is kept on file, to be sued in behalf of the ward or by any other person who may be injured by the misconduct of the guardian while in office."^ The true principle which distinguishes such cases seems to be that the identity of the parties should sufficiently appear. Where there are several wards, one probate bond is sufficient for all."* But separate bonds for each ward would not be im- Gale (1894), R. I. Bond not an es- guardian's bond to the proper office sential to a valid apointment in How- cannot readily be shown, after long erton v. Sexton, 104 N. C. 75. lapse of time, to be merely in escrow. 60. Fuller, Mass. Prob. Laws, SS?. Ordinary v. Thatcher, 41 N. J. L. As to dispensing with sureties where 403. A bond filed and executed by a fidelity company guarantees the two sureties, though calling in its bond, see 1 Dem. (N. Y.) 75. premises for three, may bind the two. 61. See Mass. Eev. Laws, ch. 149 ; Ordinary v. Thatcher, 41 N. J. L. 403. lb., eh. 109 J Bennett v. Byrne, 2 In general, sureties as well as the Barb. Ch. 216; Brunson v. Brooks, 68 guardian, are estopped by the deliv- Ala. 248. A succeeding guardian ered bond itself from denying its may of course sue such bond. Voris legal effect on the ground of fraud V. State, 47 Ind. 345. The probate by the guardian, or arrangements guardian ought to file an approved with him as to other signatures, etc., bond before being considered duly to which the court, the ward, and qualified. The court cannot, after ap- parties to be protected by the bond pointing him guardian of one child, were not privy. Vincent v. Starks, appoint him guardian of another sub- 45 Wis. 458; Sasscer v. Walker, 5 Gill sequently, and then order the former & J. 103; State v. Hewitt, 72 Mo. bond to stand for both. Vanderburg 603 ; Brown v. Probate Judge, 42 V. Williamson, 52 Miss. 233. Some Mich. 501. statutes hold the judge to ca'reful in- 62. Cranston v. Sprague, 3 R. I. quiry into the sufficiency of sureties 205; Ordinary v. Heishon, 42 N. J. before accepting them. Colter v. Mc- L. 15. Intire, 11 Bush, 565. Delivery of a § 95T GUARDIAN AND WARD. 1092 proper, and, in some instances, might be even preferable. The names of all the wards should be embraced in the bond, where only one is furnished. Natural guardians are not required to give bond. N'or were guardians in socage. Nor, in England, are testamentary guardians to furnish security to the court. The reason is that these guardians were not judicially appointed nor answerable in general to the court. The same law prevails in many parts of this country.*' Eut in some States testamentary guradians are treated like execu- tors, in respect to their appointment ; that is to say, the will which names them must be admitted to probate and letters issued; and the testator's appointment is made subject to judicial approval. In such cases the testamentary guardian, liie the executor, is re- quired to give security; but he may be exempted from giving sureties, if the testator requested such exemption and the court deems it safe to grant the request.'* A probate bond may be good, though inartificially drawn, if sub- stantially in compliance with the statute.*'' And if it contains more than the law requires, it is nevertheless good for such portion as is lawful."" But perhaps not, if it contains less. A bond is not to be avoided for slight defects committed through carelessness or error. In some instances defective bonds have been cured in equity, so as to hold both principal and sureties, and have been 63. See supra, chs. 1, 2 ; Thomas v. v. Britton, 102 Ind. 214. Nor was ■Williams, 9 Fla. 289. it invalid for want of approval. IT). 64. See Mass. Eev. Laws, oh. 149, A guardian's bond is not converted § 3. A testamentary guardian will be from a statutory to a common-law ordered to furnish security whenever bond merely because it contains pro- the court's interposition appears visions not required in the statutory proper. Est. of Stanton, 13 Phila. form, which are in accordance with 213. Bond must be given. Hatch v. law. McFadden v. Hewett, 78 Me. Ferguson, 57 Fed. 966. 24. But the legality of an appoint- Even if the guardian's appoint- ment may be denied by virtue of re- ment was void for want of jurisdic- citals in a bond which are senseless tion, the sureties are held liable with and uncertain. Hayden v. Smith, 49 him for his qiMsi guardianship under Conn. 83. The surety is estopped when which he obtained the property. Cor- sued to deny the appointment of the bitt V. Carroll, 50 Ala. 315. If the guardian as recited in the bond. State appointment was simply voidable the v. Mills, 82 Ind. 126; McGale v. Mc- surety is estopped. Doner's Estate, Gale (1894), R. I. 156 Pa. St. 301. A guardian's bond 65. Probate Court v. Strong, 27 Vt. held good, although there was a blank 202; Alston v. Alston, 34 Ala. 15; where the penalty is ordinarily writ- Ordinary v. Heishon, 42 N. J. L. 15. ten, and no penalty was stated. State 66. Pratt v. Wright, 13 Gratt. 175. 1093 THE GUABDIAN's BOOT). § 958 made enforceable even though void at law." Material erasures on the face of the bond may be explained, and the presumption is fair that they were made before delivery."' A bond is not vitiated which contains a proper recital of the ward's name, although there be a discrepancy in names between the bond and letters of guardianship; and yet sureties have been relieved from liability on the ground that the ward was not named in the bond at all."' § 958. Liability of Guardian and Sureties. The bond of a probate guardian renders him and his sureties liable for all estate of the ward which shall come to his possession or knowledge. This includes chattels due from the guardian to the ward at the time of his appointment or of the execution of the bond, even though the fund be the proceeds of land already sold and paid for, and the rent of real estate occupied by the guardian before that time. It embraces chattels and rents and income from every species of property that the guardian actually receives in his official capacity, or that he might have received if he had faith- fully performed his duty.'" Property received from persons resi- dent in another Stato is covered by the bond as much as property originally within the jurisdiction.''^ But while the property is beyond his reach, and cannot be obtained without a foreign ap- pointment, the liability of his bondsmen would not seem to extend beyond a general dereliction of duty on his part in neglecting the proper means of obtaining it. The bond of guardians of foreign wards, appointed for recovering estate situated in their own State, binds them to account only for such property, nor can they be held liable for the custody of the wards while the latter remain non-residents. A legacy due from the executor of the ward's father, and other estate lawfully payable to the guardian by the executor, must all be accounted for, and for this the guardian's G7. Wiser v. BlacUy, 1 Johns. Ch. names. Turner v. Alexander, 41 Ark. 607 ; Sikes v. Truitt, 4 Jones Eq. 361 ; 254. Bumpns v. Dotson, 7 Humph. 310. 70. Mattoon v. Cowing, 13 Gray, 68. Xander v. Commonwealth, 102 387; Neill v. Neill, 31 Miss. 36; Bond Pa. St. 434. This presumption may v. Lockwood, 33 111. 212; Williams v. be rebutted. Morton, 38 Me. 47; McClendon v. 69. Shuster t. Perkins, 1 Jones, Harlan, 2 Heisk. 337; Hunt v. State, 325; Greenly v. Daniels, 6 Bu3h, 41; 53 Ind. 321. State v. Martin, 69 N. C. 175; 71. McDonald v. Meadows, 1 Met. Shroyer V. Eichmond, 16 OhioSt. 455; (Ky.) 507; Brooks v. Tobin, 135 Biehardson v. Boynton, 12 Allen, 138. Maas. 69 ; State v. Williams, 77 Mo. Bond not invalid where a blank was 463. left for the initials of the wards' § 958 GDAEDIAN AND WAKD. 1094 sureties are doubtless liable. The bond covers property of the ward obtained by the guardian and disposed of before bis appoint- ment and charged in account.'^ But for property unlawfully re- ceived by tbe guardian, and not belonging to bis ward, although he may be compelled to account for it on his personal responsi- bility, his sureties are not liable, since it does not come to his hands as guardian.'* Where the guardian loans his ward's money im- pr evidently, he and his sureties become and, continue liable for it.'* The liability of sureties lasts to the full extent of the penal sum named in the bond, while the responsibilities of the guardian- ship continue, and it does not terminate by the resignation or death of the guardian. For the ward's estate in the guardian's hands or subject to his control at the time of his resignation or death, they continue liable.'^ Their liability, though usually recited in the bond, extends in general to whatever the guardian received after the bond was executed and by culpable negligence or misconduct wasted, misapplied, or did not duly account for.'° Not even the statutory limitation to suits against executors and administrators operates to relieve such sureties for the default of their deceased principal." The estate of a deceased surety is liable for a default 72. Sargent v. Wallis, 67 Tex. 483. Ex'r v. The State, 81 Ind. 455. Or 73. Livermore t. Bemis, 3 Allen, where he converts the ward's money 394; Allen v. Crosland, 2 Eieh. Eq. before giving a bond and afterwards 68; Ballard v. Brummitt, 4 Strobh. replaces it, but fails to account for Eq. 171. As to liability where court the money so replaced. Parker v. ordered a deposit of money, see Grif- Medsker, 80 Ind. 155. fith V. Parks, 3S Md. 1. Guardian's The guardian's sureties are not bondsmen held liable for the full liable for money paid over to a guai- amount of insurance policy on the life dian by executors contrary to direc- of the father taken for two children, tions of the will. Hindman v. State, one of whom died soon after the 61 Md. 471; Perkins v. Tooley, 74 father. Carr v. Askew 94 N. C. 194. Mich. 220. Nor for money paid over For a claim assigned by the widow by mistake, even though the guardian against the administrator of the es- in his accounts charged himself. The tate of the child's father. Todd v. State ex rel. Howe v. Bond, 121 Ind. Davenport, 22 S. G. 147. For the 187. And see Eiffe v. Proctor, 99 guardian's failure to make a rein- Mo. 609. vestment. Taylor v. Hemingway, etc., 74. Richardson v. Eoynton, 12 Al- 81 Ky. 158. Por a loss occurring by len, 138. reason of a transfer of the estate by 75. Moore v. Wallis, 13 Ala. 458- the guardian to one erroneously sup- State v. Thorn, 28 Ind. 306; Ashby posed to be a qualified successor. Wil- v. Johnston, 23 Ark. 163. son V. Railroad, 90 N. C. 72. Or. 76. Husou v. Green, 88 Ga. 722. where the guardian removes from the 77. Chapin v. Livermore 13 Gray State without accounting. English 561; Ordinary v. Smith, 55 Ga. 15. 109S THE QTTAEDIAN's BOND. § 958 of the guardian which occurred after such surety's death, and be- fore final settlement of the trust.''' Under the prevalent rule of American statutes, no action can he maintained on the bond of a probate guardian until after a citation to account and a decree which establishes a default on his part ; and this holds, even though the guardian should, meanwhile, die." Sureties are liable so long aa the official bond can be sued at all. But a surety may be dis- charged at any time upon his petition and after due notice to all parties interested; and thereupon the court will order the guar- dian to furnish new security ; and, upon his failure to do so, may remove him. But such surety remains liable until the new bond is approved;'" and for any previous embezzlement or other miscon- duct or culpable mismanagement committed by the guardian he must still respond.'^ The personal representative of a deceased surety, it would appear, may compel the guardian to furnish new security in like manner.'^ The approval of a new bond and the discharge of a former surety terminate ipso facto the liability of such surety so far as new acts of the guardian are concerned, notwithstanding the security substituted may prove insufficient, or the instrument fatally defective.'' Eelease of a surety is not to be readily presumed.'* One surety cannot be discharged from his liability without the other, unless the latter by words or acts shows his consent to remain solely responsible." 78. Voris v. State, 47 Ind. 345; like the first, though with larger pen- Cotton V. State, 64 Ind. 573. See alty, the sureties on both bonds are Brooks V. Eayner, 127 Mass. 268. so-suretiea. Stevens v. Tucker, 87 79. Perkins v. Stimmel, 114 N. T. Ind. 109. 359. For in such case his representa- 83. Hamner v. Mason, 24 Ala. 480. tives should be summoned to account. See Kendrick v. Wilkinson, 18 Ind. 80. Jamison v. Cosby, 11 Humph. 206. A surety may sign an old guar- 273; Mass. Gen. Sts., eh. 101; Bellune diau's bond as well as a new one, in V. Wallace, 2 Eich. 80. the stead of a retiring surety. Ham- 81. Eichelberger v. Gross, 42 Ohio mond B. Beasley, 15 Lea, 618; Mc- St. 549; Tost v. State, 80 Ind. 350. Intyre v. The People (Use, etc.), 103 And see BeU v. Eudolph, 70 Miss. 234, 111. 142. that no artifice of the guardian over 84. Wann v. People, 57 111. 203. Buch embezzlement will relieve such 85. See Newcomer 's Appeal, 43 Pa. surety. St. 43 ; Sebastian v. Bryan, 21 Ark. 82. Moore v. Wallis, 18 Ala. 458. 447; Frederick v. Moore, 13 B. Monr. The heirs of a deceased surety are not 470 ; Boyd v. Gault, 3 Bush, 644. liable jointly with the principal on the Where a guardian has once been dia- bond. Strickland v. Holmes, 77 Me. charged with money in his hands not 197. Where a guardian, after the paid over, and is subsequently reap- death of one surety, gives anotehr pointed, and accounts only for money bond with other sureties conditioned received since reappointment, the § 958 GUAEDIAN AND WAED. 1096 The sureties on a guardian's bond, though liable, it may be, for money received by the guardian before the bond waa made, are not liable for what he receives after having resigned or been removed from office.*' And where a ward dies and the guardian administers upon his estate, the liability for the assets formerly held by the latter as guardian becomes transferred to him as ad- ministrator, and the sureties on his administration bond are made liable in place of those who were his bondsmen in the guardian- ship.*' But redress for a guardian's conversion should be sought on the bond or bonds in force at the time; and the question is not when does the guardian charge himself with assets, but when do they come to his possession or knowledge as guardian.** Where the guardian has filed an additional bond, as in case of a large accession to the original estate, both bonds remain valid, the new bond is taken as a cumulative security and the sureties (as such statutes are generally construed), are all deemed co-sureties, and liable as such.*' And a bond voluntarily offered by the guar- dian and approved in the ordinary form is as binding as though it had been ordered by the court."" Where, however, the sureties of an old bond are discharged and a new bond is substituted, the usual rule is that the old sureties and the new are liable to- gether as co-sureties for the defaults of the guardian, previous to filing the new bond, and that the new sureties alone bear the responsibility of his subsequent misconduct.®^ But the liability of a surety on a new bond given in place of the original one is in sureties on his first bond are liable. 19t), where one is administrator and Naugle V. State, 101 Ind. 284. See guardian. Bond V. Armstrong, 88 Ind. 65, for 89. Loring v. Bacon, 3 Cush. 465; the rule where a guardian in default Commonwealth v. Cox, 36 Pa. St. 443 ; gave a new bond and then committed Alen v. State, 61 Ind. 268 ; Huson other defalcations and died, his es- v. Green, 88 Ga. 722. In absence tate paying a percentage on the en- of positive evidence of the time of tire defalcation. For the California any misconduct> the sureties are rule see Spencer v. Houghton, 68 Cal. all liable in this case for the entire 83. guardianship. Douglass v. Kessler, 86. Merrells v. Phelps, 34 Conn. 57 la. 63. And see Stevens et al. v. 109. But as to payments made to Tucker et at, 87 Ind. 109. some person by one not aware that 90. Potter v. State, 23 Ind. 550. his authority has been revoked, see 91. Loring v. Bacon, 3 Cush. 465; Sage V. Hammonds, 27 Gratt. 651. Bell v. Jasper, 2 Ired. Eq. 597; See Downing v. Peabody, 56 Ga. 40. Hutehcraft v. Shrout, 1 Monr. 206 ; 87. Baker v. Wood, 42 Ala. 664. Jones v. Blanton, 6 Ired. Eq. 115 ; Am- 88. Lowry v. State, 64 Ind. 421; mons v. People, 11 HI. 6; Sayers v. Johnson v. McCullongh, 59 Ga. 212. Cassell, 23 Gratt. 525; MeGloshlin v. And see KufSn v. Harrison, 86 N. C. Wyatt, 1 Lea, 717; State v. Page, 63 1097 THE guardian's bond. § 959 some States treated as prospective only, on the equitable principle that, where the statute bond does not plainly express a retrospec- tive operation, such should not be its construction.*^ Contribu- tion is- in proportion to the penal sum named in the i-espective bonds. But in special instances and under the open sanction of the court and of an infant's counsel a new surety has been accepted upon qualified terms of liability sufficiently beneficial to the ward, which he insisted upon.'* § 959. The Same Subject. Many of the decisions in regard to administration bonds apply on principle to those of guardians. Thus a bond which is not signed by the guardian is not binding even upon his sureties.'* And if altered, after being signed by two sureties, with the con- sent of the principal only, and then signed by two other sureties, ignorant of the alteration, it is not binding upon any of the sure- ties ; not upon the first two, because altered without their consent ; not upon the other two, because they were not informed of the release of the two former.*^ But fraud practiced in obtaining a surety's signature affords the surety whose confidence was mis- placed no defence when sued on the bond, as against those his Ind. 209. The language of a local for money received before by the guar- code must be resorted to for the rule dian. Tuttle v. Northrop, 44 Ohio St. in such cases as to the discharge of 178. Or for money already lent to a former bondsmen from liability. See firm which afterwards turns out insol- Sayers v. Cassell, 23 Gratt. 525. A vent. McWilliams v. Norfleet, 63 periodical statutory bond is required Miss. 183. The sureties on a guar- in some States, and even such bonds dian's additional bond may be liable are hold to be cumulative, under the for his failure to account for money statute, as to the wards, though con- on hand when it was given; Hie pre- tribution is in inverse order of execn- sumption being that the misappro- tion. Tennessee Hospital v. Fuqua, priation was afterwards. Clark v. Wil- 1 Lea, 608. A surety is not liable for kinson, 59 Wis. 543. See further, Lee money paid the guardian on account v. Lee, 67 Ala. 406 ; Moody et al. v. of a ward who at the time of payment State ex rel. Burton, 84 Ind. 433. was of age. Sheton v. Smith, 59 Tenn. 92. Lowry v. State, 64 Ind. 421 ; 82. A surety's contingent liability. State v. Shackleford, 56 Miss. 648. being provable against him in bank- 93. See Spath's Estate, 144 Pa. St. ruptcy proceedings, may thus have 383, where it was clearly arranged up- been avoided. Davis v. McCurdy, 50 on the insolvency of the guardian and Wis. 569. But not a guardian's. Be his original surety, that the new Maybin, 15 Bankr. Eeg. 468. Sureties bondsman was not to be held liable on a bond are not usually liable for beyond the balance shown upon the past defaults. State v. Jones, 89 Mo. account then filed. 470; McWilliams v. Norfleet, 60 Miss. 94. Wood v. Washburn, 2 Pick. 24. 987. But a substituted surety is liable 95. Howe v. Peabody, 2 Gray, 556. § 960 GUAEDIAN AND WAED. 1098 conduct led to rely upon it°" So joint guardians who wiah to limit their respective liabilities must furnish separate bonds; since both are responsible for all the acts of each other during the continuance of the joint guardianship where they execute a joint bond.*' And the usual rule is that no more than the penal sum named in the bond can be recovered upon it, unless it be by way of interest or cost.** § 960. Special Bond in Sales of Real Estate. A special bond is in many States required where a guardian is licensed to make sale of his ward's real estate. Where real estate has been sold by a guardian, and the proceeds remain unaccounted for at the expiration of his trust, it is a question whether the sureties on his general bond shall be held responsible, or those on the special bond given for sale of the real estate. The best au- thority is in favor of charging the latter and not the former sureties for the guardian's misapplication of such moneys,'* un- less the default be such that the misapplication cannot be identi- fied. The rule in Massachusetts, where a guardian, who has been licensed to sell real estate for the purpose of investment, fails to invest, and charges himself instead, in his accounts, with the proceeds and interest from year to year, has been to hold him responsible for the proceeds of the sale upon his special bond, but for the interest upon his general bond.^ The omission to give 98. Xander v. Commonwealth, 102 the requirement of an additional or Pa. St. 434; § 366, note. special bond in such case ia matter of 97. Brazier v. Clark, 5 Pick. 96; judicial discretion. See Vanderburg Sparhawk v. Buell's Adm'r, 9 Vt. 41; v. Williamson, 53 Miss. 233. In other Boyd V. Boyd, 1 Watts, 365. But see States such bond is auxiliary and post- Williams V. Harrison, 19 Ala. 277. poned to the original bond. Hart v. 98. Tyson v. Sanderson, 45 Ala. Stribling, 21 Fla. 136. As to releas- 364; Schouler, Pers. Prop. 465-470; ing sureties and taking a new bond Wilson, IRe, 38 N. J. Eq. 205. before confirmation of the sale, see 99. Williams V. Morton, 38 Me. 47; State v. Cox, 62 Miss. 786. The court. Brooks V. Brooks, 11 Cush. 22 ; Potter by altering the terms of sale, &c., T. State, 23 Ind. 607; Pay v. Taylor, does not impair the obligation of 11 Met. 529; Blauser v. Diehl, 90 Pa. such bond. Stevenson v. State, 69 St. 350; Madison County v. Johnston, Ind. 257, 71 Ind. 52. See also Col- 51 la. 152; Eunce t. Bunco et at, 65 bum v. State, 47 Ind. 310, as to real la. 106; Morris v. Cooper, 35 Kan. estate sale on applicaton of another 156 ; Henderson v. Coover, 4 Nev. 429 ; than the guardian. Withers v. Hickman, 6 B. Monr. 292 ; 1. Mattoon v. Cowing, 13 Gray, Commonwealth v. Pray, 125 Pa. St. 387. See Pratt v. McJunkin, 4 Rich. 542 ; Judge of Probate v. Toothaker, 5. Sureties on the guardian 's general 83 Me. 195. See Andrew's Heirs bond are liable where the ward's Case, 3 Humph. 592. In some States land is sold in partition proceedings. 1099 THE guardian's bond. § 962 a special bond for the sale of real estate is, on the foregoing principles, no breach of the guardian's general bond. § 961. Suit on the Guardian's Bond for Default and Misconduct. For the default and misconduct of the guardian the proper remedy is by suit on the probate bond. And such suits are brought in the name of the judge, or the State, according to the requirements of statute, for the benefit of the person or persons injured.* § 962. Validity of Bond. Though the appointment of the guardian is void still the bond may be good as a common-law obligation,' and the sureties will be liable where the supposed guardian received funds for which he failed to account.* A guardian's bond is binding if the court has jurisdiction though the action of the court is erroneous but not void,^ but a bond given for unknown heirs being a nullity is not valid as a common-law bond.* A guardian's bond not signed by a principal is good against the surety as a common-law lia- bility.'' Where a guardian's bond is valid on its face the sure- ties cannot escape liability by disputing the truth of its recitals.* The fraud of the guardian in obtaining the sureties to sign by misrepresenting the condition of the estate is no defence for the sureties in an action on the bond.* Action Against Sureties. — As to sureties, it is said that they Hooks V. Evans, 68 la. 53. Where 3. Cotton's Guardian v. Wolf, 77 both general and special bond are Ky. 238; United States Fiedlity & given, and the guardian's default Guaranty Co. v. Parker, 20 Wyo. 29, makes it impossible to ascertain whe- 121 P. 531. ther the money unaccounted for con- 4. Hazelton v. Douglas, 97 Wis. eisted of proceeds of the land or not, 214, 73 N. W. 637. suit may be brought against either 5. Moore v. Hanscom, 103 S. W. set of bondsmen. Tost v. State, 80 665 (judg. mod.. Sup. 1908, 101 Tex. Ind. 350. And see State v. Mitchell, 293, 106 S. W. 876) (reduction of 132 Ind. 461. As to moneys derived bond unauthorizad) ; Findley v. Find- under a sale of land not perhaps au- ley, 42 W. Va. 373, 36 S. E. 433. thorized, the bondsmen cannot set up 6. State v. McLaughlin, 77 Ind. ■want of authority. Dodge v. St. John, 335. 96 N. T. 260. Where accounting 7. Painter v. Maudlin, 119 Ala. 88, would not change the facts of liability 34 So. 769, 73 Am. St. E. 902. it is not a prerequisite to suing such 8. Gray v. State, 78 Ind. 68, 41 Am. a bond. Long v. Long, 142 N. T. Bep. 545. 545. See § 376. 9. (1906) Bouse v. Whitney, 102 N. 2 Davis V. Dickson, 2 Stew. 370; T. S. 899, 53 Misc. 56 (judg. rev., Potter V. State, 23 Ind. 607; Pearson Same v. Payne (1907), 105 N. T. S. v. McMillan, 37 Miss. 588. 549-). § 963 GUAEDIAN AND WAED. 1100 may be sued without a previous suit against the principal; the common-law rule, that an executor must first be found guilty of devastavit, being held inapplicable to guardians.^" But here, again, in the absence of an accounting or a delinquency fixed in the proper court suit cannot usually be maintained.^^ Parties. — In a suit against sureties on a guardianship bond, if one of the sureties is dead, his personal representative should be joined.^^ § 963. Accounting as Prerequisite. In most States the guardian's bond cannot be sued until he has been summoned before the proper court to account; nor until leave of that court has been first obtained ; except in certain cases of debts which appear of record," unless an accounting is im- 10. state V. Strange, 1 Smith (Ind.), 367; Call v. EufSn, 1 Call, 333; 1 Met. (Ky.) 22. And see Hor- ton V. Horton, 4 Ired. Eq. 54; Moore V. Baker, 39 Ala. 704; Moore v. Hood, 9 Bich. Eq. 311; Potter v. Hiscox, 30 Conn. 508; Clark v. Montgomery, 23 Barb. 464. In a suit by the ward against his guardian and the sure- ties on the bond, a decree may be rendered at once against all; the ward need not pursue the guardian first. Barnes v. Trafton, 80 Va. 524. The personal representative of a de- ceased insolvent guardian is not a necessary party to the ward's suit in equity against a surety. Fulgham v. Herstein, 77 Ala. 496. As to demand, see Buchanan et al. v. The State ex ret, 106 Ind. 251; Powers v. The State, 87 Ind. 102. But there should usually be a judgment against the guardian before money can be made out of the sureties. Forest v. Vason et ux., 71 Ga. 49. Cf. Wolfe v. State, 59 Miss. 338. 11. See § 376, notes. But ef. § 369. 12. Lynch v. Eotan, 39 HI. 14. A release of a surety by payment of an amount less than the priacipal owed is not a full discharge of the princi- pal. Carroll v. Corbitt, 57 Ala. 579. As to suits on a guardian's bond, on the relation of one or more wards where there are other wards, see Col- bum V. State, 47 Ind. 310; Seheel v. Eidman, 68 HI. 193. The bond of a guardian of several infants may be sued on for those surviving, where any are dead. Winslow v. People, 117 111. 152. A surety is liable for a debt due from the guardian to his ward when appointed, if the guardian was then solvent. Black, &c. v. Kaiser, 91 Ky. 422. 13. Stillwell V. Miles, 19 Johns. 304; Bailey v. Rogers, 1 Greenl. 186; 78 Me. 24; Salisbury v. Van Hoesen, 3 Hill, 77; Bisbee v. Gleason, 21 Neb. 534; Jarrett v. State, 5 Gill & Johns. 27; Hunt v. White, 1 Cart. 105; Foteaux v. Le- page, 6 la. 123 ; Ammons v. People, 11 111. 6; Pratt V. McJunkin, 4 Eich. 5; Justices V. Willis, 3 Terg. 461; 'Brien v. Strang, 42 la. 643 ; Allen V. Tiffany, 53 Cal. IS ; Hailey v. Boyd, 64 Ala. 399 ; Ordinary v. Heishon, 42 N. J. L. 15. But a guardian cannot prevent an action on his bond by failure to account. Wann v. People, 57 m. 202. As for chancery bill of ac- count, in ease of quasi guardianship, see next chapter. As to abatement of summary proceedings to account by the guardian's death, see Harvey v. Har- vey, 87 m. 54. The sureties cannot usually be sued until the guardian's accounts are set- 1101 THE GUARDIAN S BOHD. 963 possible." The reason is that the balances due from the guardian and the extent of his liability cannot be precisely ascertained until the accounts are presented; moreover, the failure to account in obedience to judicial mandate, or to turn over the property ac- cording to a balance shown on such accounting, fixes the delin- quency. So, too, while the guardian may sue his ward, after the latter attains majority, when it appears that the final indebted- ness is in his own favor, he must wait until the court has ascer- tained and decreed its amount.^' tied and he fails to pay what is due. State V. Buck, 63 Ark. 818, 37 8. W. 881; Beakley v. Cunningham, 112 Ark. 71, 165 S. W. 259 ; Graff v. Mea- mer, 52 Cal. 636; Hunt v. White, 1 Ind. 105; United States Fidelity & Guaranty Co. v. Jackson, 111 Miss. 752, 72 So. 150; Wegner v. Wiltsie, 23 Ohio Cir. Ct. E. 302; Fidelity & Deposit Co. of Maryland v. Sehelper, 37 Tex. Civ. App. 393, 83 S. W. 871 ; Pinnell v. Hinkle, 54 W. Va. 119, 46 S. E. 171; contra, State ex rel. Garesche v. Slevin (Mo. 1887), 6 S. W. 71 (ward who has reached ma- jority may sue sureties without ac- counting) ; State ex rel. Leutert v. Berger, 92 Mo. App. 631; United States Fidelity & Guaranty Co. v, Nash, 20 Wyo. 65, 121 P. 541 (reh. den., 124 P. 269). 14. Mitchell v. Kelly, 82 Kan. 1, 107 P. 782 (where guardian becomes insolvent and dies) MUler v. Kelsey, 502-5840-Bender — Domestic Relation 100 Me. 103, 60 A. 717 (guardian ab- sconded) ; Kurz v. Hess, 83 N. Y. S. 773, 86 App. Div. 529' (absconded) ; Otto V. Van Eiper, 164 N. T. 536, 58 N. E. 643, 79 Am. St. E. 673 (death of guardian in another State) ; Gil- bert V. Gilbert, 13 Ohio Cir. Ct. R. 29, 7 O. C. D. 58. 15. Smith V. Philbriek, 2 N. H. 395; Shollenberger's Appeal, 21 Pa. St. 337. In certain peculiar instances, where the extent of the guardian 's li- ability has been otherwise as definitely determined as it could be by an ac- counting, it is held that a decree may be entered against the guardian for the amount, though no account has been taken. Sage v. Hammonds, 27 Gratt. 651 ; and even that an account- ing is not a prerequisite to an action against the sureties. Hughes v. City of Auburn, 21 Hun, 316; Long v. Long, 142 N. T. 545. See McWilliams V. Kalbach, 55 la. 110. For the Illi- nois rule, see Mclntyre v. The People Use, 103 111. 142. But an accounting is usually a prerequisite to suit on the bond. In an action on a guardian's bond the writ should be indorsed with the name of the person for whose benefit suit is brought. Prob. Court of Hopkinton v. Lamphear, 14 E. I. 291. And see Tudhope v. Potts, 91 Mich. 490. In an action on a guardian's bond, the burden is on plaintiff to show a breach of its conditions; while in ex- ceptions to the account, the burden is on the guardian to justify his expend- itures, deductions, and allowances. The State ex rel. Wiseman et al. v. Wheeler, 127 Ind. 451. But whatever the onus in items of account, the ulti- mate decision rests with the court on a settlement; and the court will neither exercise a severity which might deter prudent men from ac- cepting such trusts, nor sanction a laxity of diligence which might invite men to accept for gain. Thompson v. Thompson, 92 Ala. 545. § 964 QTTABDIAlf AND WAHD, 1102 § 964. Accounting is Conclusive. Sureties, as well as the guardian, are concluded in the absence of fraud or palpable error, by the amount deliberately adjudged due from the guardian on settlement of his accounts, usually in a probate court, although the sureties were not parties to the pro- ceedings.^* They cannot become parties to the accounting of their 59 S. W. 300 ; Minehew v. Case (Tex. Civ. App. 1913), 143 S. W. 366; contra, tTnited States Fidelity & Guaranty Co. v. Pitt'man, 183 Ala. 603, 63 So. 784 ; Lineoln Trust Co. v. Wolff, 91 Mo. App. 133 ; State ex rel. Leutert v. Berger, 93 Mo. App. 631; see State v. Booth, 9 Mo. App. 583; Judgment Eouse v. Whitney (1906), 103 N. T. S. 809, reversed'; Kouse v. Payne, 105 N. Y. S. 549, 130 App. Div. 667. Commonwealth v. Bhoads, 37 Pa. St. 60; Braiden v. Mercer, 44 Ohio St. 33?; MeCleary v. Menke, 109 111. 394; Moore & Wife v. Nichols, 39 Ark. 145. In numerous instances, however, a decree rendered against a guardian is held not conclusive against sureties who were not parties to the final accounting. So that the latter may show, in reduction of their lia- bility, that the guardian failed to charge the wards with boarding, tu- ition, or his own compensation, or made improper charges in their favor against himself. Davenport v. 01m- stead, 43 Conn. 67; State v. Hull, 53 Miss. 636; Kinsey v. State, 71 Ind. 33 ; Kinsey et al. v. The State ex rel., •81 Ind. 63; Hauser, Guardian, v. King et al, 76 Va. 731; Stat© v. Hoster, 61 Mo. 544; Sanders v. Por- gasson, 3 Baxt. 249. And see Moore V. Alexander, 96 N. C. 34. So may the sureties have the benefit of a debt lawfully chargeable in account with the ward, which the creditor releases iona fide to the guardian personally. Kinsey v. State, 71 Ind. 33. Special penalties may be assessed under some local statutes, on a defaulting guar- dian 's bond. Stroup v. State, 70 Ind. 495; Buchanan et. al. \. The State 16. Beakley v. Cunningham, 113 Ark. 71, 165 S. W. 259; Lynch v. Eotan, 39 IH. 14 (in absence of fraud) ; Ryan v. People, 165 111. 143, 46 N. E. 206 (afEg. 62 111. App. 355) ; Chase v. Wright, 116 la. 555, 90 N. W. 357; In re Caskey (la.), 166 N. W. 751;; Eice v. Wilson, 139 Mich. 520, 89 N. W. 336, 8 Det. Leg. N. 1055; Cross v. White, 80 Minn. 413, 83 N. W. 393, 81 Am. St. E. 367; Botkin v. Kleinschmidt, 21 Mont. 1, 53 P. 563, 69 Am. St. E. 641; Deegan V. Deegan, 32 Nev. 185, 37 Pae. 360, 8 Am. St. E. 742 ; Douglass v. Perris, 138 N. T. 193, 33 N. E. 1041, 34 Am. St. E. 435, 18 N. T. S. 685; Douglass V. Perris, 63 Hun, 413; Van Zandt v. Grant, 175 N. T. 150, 67 N. E. 221, 73 N. T. S. 600, 67 App. Div. 70; In re Eansier, 57 N. Y. S. 650, 36 Misc. 582;; Eberle v. Schilling, 65 N. Y. S. 728, 32 Misc. 195; Southern Surety Co. v. Burney, 34 Okla. 552, 126 Pac. 748, 43 L. E. A. (N. S.) 308; Title Guaranty & Surety Co. V. Slinker, 35 Okla. 138, 153, 128 P. 696, 698; Henry v. Melton, 46 Okla. 378, 148 P. 730; Cabell v. McLish (Okla.), 160 P. 593; Smith v. Gamett (Okla.), 161 P. 1083; Southwestern Surety Ins. Co. v. Eiehard (Okla.), 162 P. 468; Egan V. Vowell (Okla.), 167 P. 205; Dris- eoU V. Quinn (Okla.) 170 P. 495; Southern Surety Co. v. Jefferson (Okla.), 174 P. 563; Etna Accident & Liability Co. v. Langley (Okla.), 174 P. 1046 ; Title Guaranty & Surety Co. V. Cowen (Okla.), 177 P. 563; Keel V. Commonwealth (Pa.), 7 Atl. 74; Homug v. Schramm, 33 Tex. Civ. App. 337, 54 S. W. 615; Fahey V. Boulmay, 24 Tex. Civ. App. 279, 1103 THE GXJABDIAn's BOND. § 965 principal, either in the original proceedings or on revision/^ and a judgment against the guardian is also binding on the sureties," but the surety may plead the statute of limitations," and ie not bound by the reports made by the guardian.^" Notwithstanding a final settlement showing an amount due from the guardian the surety may show that the loss occurred before the date of his bond.^^ § 965. Sureties Held on Breach Occurring While Bond Out- standing. The sureties are in general liable only for a breach occurring while the bond is outstanding and not for losses occurring before the execution of the bond.^'' However, the sureties on a guardian's bond conditioned on his proper settlement on termination of the guardianship are liable for a conversion prior to the execution of the bond,^* and are charged with a debt owing by the guardian to the wards at the time of his qualification.^* Where a guardian misapplies funds the sureties on his bond are liable although it is subsequently ordered that a new bond be filed ex rel., 106 Ind. 251. Sureties cannot set up their principal's misappropria- tion with the ward's connivance while under age. Judge of Probate v. Cook, 57 N. H. 450. See also Scobey v. Gano, 35 Ohio St. 550 ; Fogarty et al. V. Ream ef al., 100 111. 366. 17. In re Scott's Account, 36 Vt. 297. But see Curtis v. Bailey, 1 Pick. 198. In an action on a guardian's bond his accounting and discharge in court cannot be attacked. State v. Slauter, 80 Ind. 597. Sureties cannot set up issues as to the guardian's ac- count in which they have no interest. May and Pasco v. May, 19* Fla. 373. And as to the guardian's neglect to settle accounts, see Judge of Probate V. Grant, 59 N. H. 547. 18. Baldwin v. State of Maryland, 179 U. S. 220, 21 S. Ct. 105, 45 L. Ed. 160; Parr v. State, 71 Md. 220, 17 Atl. 1020; contra, Fidelity & De- posit Co. of Maryland v. M. Eich & Bros., 122 Ga. 506, 50 S. E. 338 ; Eich & Bros. v. Fidelity & Deposit Co. of Maryland, 126 6a. 466, 55 S. E. 336; National Surety Co. v. Eives' Guar- dian, 164 Ky. 201, 175 S. W. 351 (default judgment not binding) ; Commonwealth v. Bracken, 17 Ky. Law. Eep. 785, 32 S. "W. 609 ; Gilbert V. Gilbert, 13 Ohio Cir. Ct. E. 2ff, 7 Ohio Dec. 58 (judgment without notice to guardian is not binding on surety). 19. Perkins v. Cheney, 114 Mich. 567, 72 N. W. 595, 4 Det. Leg. N. 696, 68 Am. St. E. 495. 20. Lowry v. State, 64 Ind. 421 21. State ex rel. and to Use of Short V. Hardy (Mo. App.), 206 8. W. 904. 22. Howe V. White, 162 Ind. 74, 69 N. E. 684; Cotton's Guardian v. Wolf, 77 Ky. 238; .Sltna Indemnity Co. v. State, 57 So. 980; American Bonding Co. of Baltimore, Md., v. Fountain (Tex. Civ. App.), 196 S. W. 675. 23. State v. Buck, 63 Ark. 218, 37 S. W. 881. See People's Bank & Trust Co. V. Nelson, 37 Okla. 500, 132 P. 493. 24. Johnson v. Hicks' Guardian, 97 Ky. 116, 30 8. W. 3, 16 Ky. Law Eep. 827. § 966 GUARDIAN AND WAED. 1104- and that the sureties be relieved from further liability on the bond. The breach having occurred while the first bonds were current those bonds are liable to all damages that accrue to the wards on account of the breach. As the guardian was solvent when the new bonds were given the sureties on the new bonds are also liable when he becomes insolvent after the new bonds are excuted. The amount was lost because the guardian failed and neglected to pay over the amount to the wards as he should have done and it is immaterial that it was a debt due from the guardian himself which he failed to collect. His duty to collect debts rests on him more heavily when he was the debtor by his own wrongful act than it would if he had merely failed to collect a debt from some third party.^^ The surety will be liable for an unwise loan while the bond was in force though the surety was dischai^ed before maturity of the loan.^» § 966. Sureties on Different Bonds, Special Bonds. The sureties may be liable to an action by the succeeding guar- dian/' and where the guardian gives a statutory bond and after devastavit gives a common-law bond the sureties on both bonds are liable.''* Where a guardian has filed a general and also a special bond it is error to divide the devastavit and find against the sure- ties on each bond for only a portion of the sum due from the guardian. "" A breach of the guardian's bond caused by his giving up a note to the maker can only be continued so as to bind the sureties on a second bond by the guardian carrying the not© for- ward to a final settlement^" The sureties are not relieved by the 25. -ffitna Indemnity Co. v. State Taylor (Okla.), 173 P. 831; Etna (Miss.), 67 So. 980, 39 L. R. A. (N. Accident & Liability Co. v. Langley S.) 961. See Diffie v. Anderson, (Okla.), 174 P. 1046 (validity of (Ark.), 208 S. W. 428 (sureties on appointments of guardians cannot be both bonds liable) ; Remington v. denied). Hopson, 137 Ga. 95, 72 S. E. Q'lS 28. Matthews v. Mauldin, 142 Ala. (where additional security is ordered 434, 38 So. 849. See Smith v. Moore the new bond is cumulative). See (S. C), 95 S. E. 351. Union Trust Co. v. Zynda, 129 Mich. 29. Remington v. Hopson, 137 6a. 156, 88 N. W. 407, 8 Det. Leg. N. 95, 72 S. E. 918. See United States 902 (liability on bond to secure prior PideUty & Guaranty Co. v. Hansen, defalcation). 36 Okla. 449, 129 P. 60, 67; In re 28. Des Moines Savings Bank v. Kress 's Estate, 52 Pa. Super. Ct. 2ff. Krell, 176 la. 437, 156 N. W. 858. SO. Lincoln Trust Co. v. Wolff, 91 27. Southwestern Surety Ins. Co. v. Mo. App. 133. 1105 THE QUAEDIAN's BOND. § 966 mere filing of a subsequent bond,*' and where a new bond is or- dered it is error to discbarge the sureties on the old bond until the new is approved.*'' The succeeding sureties' possession of estate funds is the possession of the ward as affecting the lia- bility of the original sureties.** Where a bond runs to three wards jointly the liability of the sureties to each ward is limited to one-third the amount of the penalty,** and where separate bonds are given for each ward the sureties are only liable on each bond to the ward's proportion of the penal sum of the bond.*° Where a special bond is required for sale of real estate the sureties on the general bond are not liable for the proceeds,*' but the sureties on the special bonds are liable and cannot draiy the validity of the proceedings.*' The guardian cannot enlarge his liability on his general bond by taking and charging himself with funds of the ward which he had no legal right to receive and for which a special bond should have been given.** The sureties on a special bond are not liable for the misap- propriation of funds not arising from the sale of the property.*' 3L Kaspar v. People, 230 lU. 343, Va. 372, 26 S. E. 433 ; Kester v. HiD, 82 N. E. 816 (affg. 132 lU. App. 1; 43 W. Va. 611, 26 S. E. 376. See Eush V. State, 19 Ind. App. 523, 49 AUen v. Kelly, 171 N. T. 1, 63 N. E. N. E. 839; Middleton's Adm'r v. 528, 67 N. T. S. 97, 55 App. Div. 454. Hensley, 21 Kj. Law. 703, 53 S. W. See Eeed v. Hedges, 16 W. Va. 167 ; 974; Miller v. Kelsey, 100 Me. 103, cowtra, Southern Surety Co. v. Burney, 60 A. 717. 34 Okla. 552, 126 P. 748. See Eudy v. 32. Miller v. Miller, 21 Tex. Civ. Eudy, 145 Ky. 245, 140 S. W. 193 App. 382, 53 S. W. 362. (sale of land void where no special 33. (Civ. App. 1907) Moore v. land given). Hanseom, 103 S. W. 665 (judg. mod. 37. Donnell v. Dansby (Okla.), 159 [Sup. 1908], 101 Tex. 293, 106 8. W. P. 317. 876). 38. Allen v. Kelly, 171 N. T. 1, 63 34. United States Fidelity & Guar- N. E. 538, 67 N. T. S. 97, 55 App. anty Co. V. Nash, 20 Wyo. 65, 121 Div. 454. See Bank of Guntersville P. 541 (reh. den., 124 P. 269). v. United States Fidelity & Guaranty 35. Parker v. Wilson, 98 Ark. 553, Co. (Ala.), 75 So. 168 (surety not 136 S. W. 981 (stay of judgment liable for funds received by guardian granted, 99 Ark. 344, 137 8. W. 926). in his individual capacity). 36. State v. Peterman, 66 Mo. App. 39. Smith v. Garnett (Okla.), 161 257; Alen v. Fahy, 63 N. T. S. 1031, P. 1083; National Surety Co. of New 30 Misc. 377; Commonwealth v. Am- York v. Washington (Okla.), 170 P. eriean Bonding Co., 212 Pa. 365, 61 1142 Knox v. Cruel (Okla.), 183 P. A. 939; Findley v. Findley, 42 W. 427. YO § 967 GTJABDIAW AND WAED. 1108 § 967. For What Acts of Gtiardian is Surety Liable. The sureties are liable generally for all money which the guar- dian should pay and does not *" for defalcation,*^ taxes** losses caused hy the negligence of the guardian,** as for failure of the guardian to collect assets,** or to invest funds,*^ or from unauthor- ized investments,*" not for losses made in. good faith.*^ Failure of a guardian to file his inventory is a breach of his bond, but the damages assessed will be nominal only unless actual damages are proved.*' Failure to comply with an invalid order of the court does not constitute a breach of the bond.*' 40. Schlee v. Barrow's Estate, 65 Mich. 362, 33 N. W. 717; State ex rel. Gregory v. Horton, 101 Mo. App. 701, 74 S. W. 1117 ; The Ordinary v. Hopler (N. J. Sup. 1896), 36 A. 769 (failure to pay over assets to a new guardian is not a breach, unless on showing new guardian properly ap- pointed) ; Eouse v. Whitney, 103 N. T. S. 899, 53 Misc. 56 (judg. revd.. Same v. Payne [1907], 105 N. T. S. 649). See Eick & Bros. v. Fidelity & Deposit Co. of Maryland, 136 Ga. 466, 55 S. E. 336. 41. Steinhart v. Gregory, 176 Ala. 368, 58 So. 266; National Surety Co. V. State, 181 Ind. 54, 103 N. E. 105; Lincoln Trust Co. v. Wolff, 91 Mo. App. 133 (surrender of note to milker) ; State ex rel. Leutert v. Berger, 92 Mo. App. 631; Ordinary V. Wolfson, 65 N. J. Law, 418, 47 A. 457 (failure to turn over money found due as on accounting) ; South- ern Surety Co. v. Jefferson (Okla.), 174 P. 563 (fraud of guardian) ; Municipal Court of Providence v. "United States Fidelity & Guaranty Co. (E. I.), 103 A. 996 (although stock taken be considered as realty) ; Allen V. Stovall, 94 Tex. 618, 63 S. W. 863 (money received in settlement of litigation, although guardian had no right to make settlement) ; Mann v. Mann, 119 Va. 630, 89 S. E. 897 (money received for condemnation of land). 42. Baldwin v. State of Maryland, 179 U. S. 220, 21 S. Ct. 105, 45 L. Ed. 160 (affg. 89 Md. 587, 43 A. 857), (taxes assessed after ward be- came of age, but before guardian stated a final account). 43. Layne v. Clark, 152 Ky. 310, 153 S. W. 437. 44. Ames v. Williams, 74 Miss. 404, 20 So. 877; State ex rel. Brebangb V. Bolte, 72 Mo. 372, 4 Mo. App. 599. 45. United States Fidelity & Guar- anty Co. V. Taggart (Tex. Civ. App.), 194 S. W. 483. 46. Leach v. Gray (Ala.), 77 So. 341; American Bonding Co. of Balti- more v. People, 46 Colo. 394, 104 P. 81; Des Moines Savings Bank v. Krell, 176 la. 437, 156 N. W. 858 (unwise loan) ; State ex rel. Mount v. Smith, 139 Mo. App. 101, 120 S. W. 614 (taking title to land in his own name) ; Empire State Surety Co. ▼. Cohen, 156 N. T. S. 935, 93 Miac. 299. 47. State ex rel. Garesehe v. Slevin (Mo. 1887), 6 S. W. 71; tTnited States Fidelity & Guaranty Co. v. Jackson, 111 Miss. 752, 72 So. 150 (mere failure of bank in which funds deposited does not operate vgso faoto as a breach). 48. Buchanan v. State, 106 Ind. 251, 6 N. E. 614; Miller v. KelBej, 100 Me. 103, 60 A. 717. 49. Harter v. Miller, 67 Kan. 468, 73 P. 74. 1107 THE guardian's BOND. § 969 If the guardian uses the funds of his ward in his own business this amounts to a conversion rendering the surety liable/" The refusal of a guardian to pay for the maintenance of the ward out of property under his control constitutes a breach of the bond for which a creditor may bring suit on the bond."^ The sureties may be liable to a creditor of the ward if the guardian turns over to the ward assets instead of uaing them to pay the creditor/" § 968. Interest, Costs and Penalty. The sureties are liable for interest from the date of the settle- ment with the guardian of his accounts/* and for interest on an- nual balances which the guardian has used in private specu- lations." In an action on a guardian's bond interest should not be com- pounded after the marriage of the ward,""* and the surety is not liable for interest after the death of the guardian until the ward demands a settlement from the surety. '*' Sureties on a guardian's bond are liable for costs awarded against him." The penalty imposed on a guardian who fails to make an annual report cannot be recovered by the ward against the sureties in an action on the guardian's bond for failure to account for and pay over the ward's money."' § 969. In What Capacity Guardian Acting. The sureties on a guardian's bond are liable only for his acts as guardian and not for acts of the guardian while acting in a sepa- rate capacity/* and are liable for all property held as guardian although received before his appointment/" The liability of the sureties on the guardian's bond can be 60. United States Fidelity & Guar- Bonding Co. of Baltimore, Md., v. anty Co. v. State, 40 Ind. App. 136, ronntain (Tex. Civ. App.), 196 S. 81 N. E. 226. W. 675. 51. State V. Fidelity & Deposit Co. 57. Phillips v. Liebmann, 41 N. T. of Maryland (Md.), 104 A. 278. S. 1020, 10 App. Div. 128, 75 N. T. 62. Probate Court of Exeter v. S. 1386. Carr, 27 R. I. 184, 61 A. 171. 58. Townsend v. Stem (la. 1904), 63. Beakley v. Cunningham, 112 99 N. W. 570. Ark. 71, 165 S. W. 259. 59. In re Eansier, 57 N. T. S. 660, 64. Gay v. Whidden, 64 Pla. 295, 26 Misc. 583 (as guardian ad litem). 59 So. 896. See Newman v. Flowers' Guardian, 55. Finnell v. O'Neal, 76 Ky. 176. 134 Ky. 557, 121 S. W. 652. 66. Freedman v. Vallie (Tex. Civ. 60. Tanner v. Skinner, 74 Ky. (11 App. 1903), 75 S. W. 322; American Bush), 120. § 970 GUARDIAN AND WAED. 1108 terminated if he ceases to hold securities as guardian but holds them in some other capacity, but this must appear, by some une- quivocal act.°^ § 970. For What Property Sureties Liable. Sureties are liable only for property which actually came into the guardian's hands during the period of the bond,*'' including personal estate or rents of real estate.** The sureties are liable for all money which came into the possession of the guardian prior to his appointment in the absence of evidence that he had before his appointment converted it to his own use,'* including losses on property placed in charge of the guardian before the execution of the bond." The sureties on the guardian's bond are chargeable with funds which the guardian as administrator is directed to deposit to the credit of himself as guardian although he had previously as admin- istrator misappropriated such funds.'* Where the wards compensated the guardian for their main- tenance by their services to him the sureties on his bond cannot defend an action by showing the guardian was poor and needed the funds for their support." Where on the guardian's death a portion of his eS'tate was paid to the ward as a dristributee the surety may set off such amount against his liability on a devastavit.''^ 61. State ex rel. Hospes v. Branch, 230 (money which came into his 112 Mo. 661, 20 8. W. 69^. hands as administratbr). 82. American Bonding Co. of Balti- 65. Beakley v. Cunningham, 112 more v. People, 46 Colo. 394, 104 P. Ark. 71, 165 S. W. 259; State ex rel. 81; Eudy v. Rudy, 145 Ky. 245, 140 Johnston v. United States Fidelity & S. W. 192. See Newberry v. "Wilkin- Guaranty Co., 188 Mo. App. 700, 176 son, 199 F. 673, 118 C. C. A. Ill 8. W. 542; Smith v. Moore (S. 0.), (afEg. decree [C. C], 190 F. 62) gs 8. E. 351 (except in flagrant (sureties estopped by guardian's re- cases). ceipf showing he had received funds) ; 66. In re Noll, 154 N. T. 766, Gillum V. Parker's Guardian, 30 Ky. 49 N. E. 1101, 41 N. Y. 8. 765, 10 Law Eep. 1191, 100 8. W. 820 (where App. Div. 356, 75 N. T. S. 1161. guardian removed to another State, See In re Switzer, 201 Mo. 66, 98 S. where he was appointed again). W. 461; Switzer v. Switzer, Id. 63. Eeed v. Hedges, 16 W. Va. 167; 67. Bell v. Kinneer, 101 Ky. 271, 40 Jennings v. Parr, 62 S. C. 306, 40 8. S. W. 686, 19 Ky. Law Eep. 545, 9 E. 683. Ky. Law Rep. 172. 64. In re Guardianship of Fardette, 68. American Bonding Co. of Balti- 83 N. T. S. 521, 86 App. Div. 50; more v. Logan (Tex. Civ. App. 1910), Loftin V. Cobb, 126 N. C. 58, 35 S. E. 132 S. W. 894. 1109 THE guardian's BOND. § 974 § 971. Duty of Sureties as to Estate. The sureties on the guardian's bond are under no duty after his death to take possession of the property or to manage it,'* and the surety is not bound to actively concern himself with the settlement of the guardian's accounts and his failure to do this does not render him liable as participating in the guardian's fraud.'"' The surety on a bond which has been discharged cannot, hecause of devastavit prior to his discharge, require the guardian to pay into court funds in his hands. ''^ § 972. Surety Taking Collateral. A surety may always take security from his principal for his own indemnity, and, if default occurs, reimburse himself from the principal's own property like any other creditor. But it stands to reason that the surety of a guardian cannot secure himself by any pledge of the ward's property; for this would be permitting fraud in order to prevent fraud, and the infant's pretended security would be to him no security at all.'" § 973. Contribution Among Sureties. Equity allows sureties to enforce contribution as among thran- aelves. Thus, if co-sureties on one bond pay the whole amount of a deficiency, they may use the other bond to obtain a proportional reimbursement.'* So where there are three co-sureties, and one proves insolvent, the surety who has responded in damages to the full extent may compel his solvent co-surety to pay him one-half of the amount.''* § 974. Subrogation of Sureties. Where sureties are compelled to respond in damages for the default of their guardian, they may seek indemnity from his property; they are entitled to be subrogated to the remedies of 69. Garrett v. Eeese, 99 Ga. 494, public policy for the guardian to de- 27 8. E. 750. posit part of the ward's securities 70. Newberry v. Wilkinson, 199 F. with the surety as indemnity. Kogers 673, 118 C. C. A. Ill (affg. decree v. Hopkins, 70 Ga. 454. [C. 0.] 190 P. 62). 73. Commonwealth v. Oox, 36 Pa. 71. Hooks V. Fidelity & Deposit St. 442. See Bangh v. Boles, 35 Ind. Co. of Maryland, 135 Ga. 396, 69 8. 524. E. 484. '''*■ Waller v. Campbell, 25 Ala. 72. Poultney v. Randall, 9 Bosw. 544. See State v. Paul's Ex 'r, 21 Mo. 232 • Foster v. Bisland, 23 Miss. 296 ; 51 ; Jamison v. Crosby, 11 Humph. Miller v.CamaU, 22 Ark. 274; Howell 273; Hocker v. Woods, 33 Pa. St. y. dobb, 8 Cold. 104. It is not against 466 ; Haygood v. MeKoon, 49 Mo. 77. § 978 GUAEDIAN ANB WABD. lllO the ward against their principal, subject, however, to equities against the ward.^° § 975. Limitation of Action. To ail suits on guardians' bonds there is a limitation prescribed by law, which is different in the different States.'* Where no special period is fixed by law, the ordinary limitation to suits on sealed instruments must be held to apply.'' An action accrues on a guardian's bond only when an order is entered upon an accounting removing or discharging the guardian, and the statute of limitations does not begin to run until that time.'^ § 976. Effect of Fraudulent Settlement with Ward. "No fraudulent and deceptive settlement of the guardian with his ward on the latter's majority, nor even the court's approval thus induced, can shield sureties when the whole transaction is set aside on judgment as void,'^ and the ward on setting aside a settlement with the guardian may recover of the sureties if they have not changed their position relying on the settlement.'" § 977. Ward's Right to Impeach Fraudulent Transfers. A fraudulent transfer of property by the surety of an insolvent guardian may be impeached on the ward's behalf.*^ § 978. Release of Sureties. A discharge of the guardian will relieve the surety,*^ but the surety is liable for a balance due at the time of the discharge,*^ 75. Adams v. Gleaves, 10 Lea, 367; 193; Parr t. State, 71 Md. 220; State State V. Atkina, 53 Ark. 303. And v. Branch (189-4), Mo. See Greenup see as to proceedings against the v. United States Fidelity & Guaranty lands of a deceased guardian. Eich- Co., 159 Ky. 647, 167 S. W. 910 (20 ardaon v. Day, 30 S. C. 413. months' delay is bar to attacking 76. State v. Hughes, 15 Ind. 104; settlement). Johnson v. Chandler, 15 B. Monr. 80. Baum v. Hartmann, 226 111. 160, (Ky.) 584; Loring v. Alline, 9 Cush. 80 N. E. 711 (revg. 122 111. App. (Mass.) 68. And see Favorite v. 444). Booher, 17 Ohio St. 548. 81. Benson v. Benson, 70 Md. 253. 77. Benson v. Benson, 70 Md. 353. 82. Haden v. Swepston, 64 Ark. As to time of a guardian's "dis- 477, 43 S. W. 393 ; Thomas v. Thomas, charge." Orleans Probate Court v. 126 Ark. 579, 191 S. W. 227; Greenup Child, 51 Vt. 82. Cf. Motes v. Mad- v. United States Fidelity & Guaranty den, 14 S. C. 488. Co., 159 Ky. 647, 167 8. W. 910 (20 78. United States Fidelity & Guar- months ' delay is bar to attacking set- anty Co. v. Citizens State Bank, 36 tlement). N. D. 16, 161 N. W. 562, L. B. A. 83. Boyd v. Withers, 103 Ky. 698, 1918E, 326. 46 S. "W. 13, 20 Ky. Law Eep. 511. 79. Douglass ▼. Ferris, 138 N. T. 1111 THE GUABDIAn'S BOND. § 978 and a final receipt in full may not be conclusive where given by the ward.** The sureties will be relieved by placing funds in the name of the ward in the hands of the court and by a complete accounting on revocation of the guardian's appointment.*^ A surety will in general be relieved only by the proper payment of the money in the hands of the guardian.*' "Where letters of guardianship are revoked because of the failure of the guardian to file his accounts the court has no power at the succeeding term as against the guardian's sureties to annul such revocation.'^ The surety is not relieved by the mere fact that the court has failed to take proper steps to force the filing of an inventory.** The liability of one surety will not be abated by the abate- ment of an action against the other.*' Statutes in many States authorize the sureties to be released by making direct application to the court,"" but the release of a surety does not protect him from liability for a devastavit already in- curred.'^ Such a release will be construed consistently with the statutes providing therefor.'" 84. Beedle v. State, 62 Ind. 36 (to enable guardian to settle with court) ; Vick V. Perrell, 85 S. E. 549 (where ward ignorant). 85. Fidelity & Deposit Co. of Mary- land V. Husted, 128 Md. 275, 97 A. 370. 86. State v. Fidelity & Deposit Co. of Maryland (Md.), 104 A. 278; State ex rel. Scott v. Greer, 101 Mo. App. 669', 74 S. W. 881. 87. Wallaee v. Swepston, 74 Ark. 520, 86 S. W. 398, 109 Am. St. E. 94. 88. Mahan v. Steele, 109 Ky. 31, 58 8. W. 446, 22 Ky. Law Eep. 546. 89. Layne v. Clark, 152 Ky. 310, 153 S. W. 437. 90. National Surety Co. of New York V. Morris, 111 Ga. 307, 36 S. E. 690 (even for reasons other than the misconduct of guardian in conduct of the trust) ; Means v. American Bond- ing Co. of Baltimore (Ga. App.), ffS 8. E. 399; Kendriek v. Wilkinson, 18 Ind. 206 ; Rush v. State, 19 Ind. App. 523, 49 N. 839 ; Clymer v. State (Ind. App.), 109 N. E. 431; In re Pope '3 Estate, 103 Me. 382, 69 A. 616; Eice V. Wilson, 129 Mich. 520, 89 N. W. 336, 8 Det. Leg. N. 1055 (discharge void where without notice to ward) ; In re American Surety Co. of Ne.r York, 115 N. Y. S. 860, 61 Misc. 542; United States Fidelity & Guaranty Co. V. Hansen, 36 Okla. 449, 129 P. 60, 67 ; Etna Accident & Liability Co. V. Langley (Okla.), 174 P. 1046; Eeed v. Duncan (Tenn. Ch. App. 1900), 59 S. W. 402 (although no for- mal petition is presented); Brehm v. United States Fidelity & Guaranty Co., 124 Wis. 339, 102 N. W. 36. See American Bonding Co. of Baltimore V. Logan (Tex. Civ. App. 1910), 132 S. W. 894 (after death of guardian bond cannot be released). An approved guardmn's bond can- not he released even by the court with- out the consent of all parties in in- terest. Commonwealth v. American Bonding Co., 245 Pa. 535, ffl A. 938. 91. American Bonding & Trust Co. V. Coons (Okla.), 166 P. 887. 92. Des Moines Savings Bank v. Krell, 176 la. 437, 156 N. W. 858. § 978 GUAEDIAN AND WAED. 1112 The amount of the liability on a guardian's bond will not be reduced by the mere granting of an application by the guardian to have it reduced where no such application was made by the surety and the bond was never changed.'* 93. Commonwealth v. American (judg. mod. [Sup. 1908], 101 Tex. Bonding Co., 245 Pa. 535, 91 A. 938. 393, 106 S. W. 876). Bee Mooie t. Hanscom, 103 S. W. 665 111? BIGHTS AND LIABILITIES. § 980 CHAPTER X. BIGHTS AND LIABILITIES OF THE WABD. ewmoN 979. General Eights of the Ward. 980. Doctrine of Election as to Wards, Insane or Infant. 981. Insane Persons and Infants Contrasted. 982. Responsibility of Guardian to Ward as Wrongdoer, &c. 983. Ward's Action or Bill for Account. 984. Limitations, Laches. 985. Ward's Eight to Eeeover Embezzled Property, &c. 9'86. Fraudulent Transactions Set Aside on Ward's Behalf. 987. Ward's Eights to Eatify or Eepudiate Transactions of Guar- dian, Estoppel. 988. Eesultiug Trusts; Guardian's Misuse of Funds; Purchase of Ward's Property, &c. 989. Transactions Between Guardian and Ward; Undue Influence. 990. Situation of Parties at Final Settlement of Accounts. 991. Transactions After Guardianship is Ended. 992. Marriage of Ward Against Consent of Chancery or Guardian. § 979. General Rights of the Ward. Having treated at length of the rights and liabilities of guar- dians, their appointment and removal, and the settlement of their accounts, it only remains for us to consider the powers and duties of the ward himself. Some of these have been already noticed incidentally; others, so far as minor wards are concerned, fall within the scope of Infancy; but a few legal principles remain for discussion under the present head, to which we shall now di- rect the reader's attention. § 980. Doctrine of Election as to Wards, Insane or Infant. There is a distinction to be drawn between infant wards, and insane persons or spendthrifts under guardianship. As to the former, the law recognizes a growing responsibility, as it were, on their part; a postponement of many rights and duties to the period of maturity, but not utter and total suspension or loss. Hence sales made and contracts performed while an infant ward's disabilities last are frequently held subjected to his future ap- proval, being treated as neither absolute nor yet void in the mean- time. Hence is that principle of election so constantly asserted at law on his behalf; hence, too, the right he exercises, when of age of passing in review accounts old and almost forgotten, to ascertain the balance justly due him. But as to insane persons § 981 GUABDIAN AND WAKD. 1114 and spendthrifts, their responsibilities are for the time blotted out; the disability may be temporary or it may be permanent; but while it lasts, it is complete; and it may be essential that transactions on their behalf should sitand or fall, irrespective of their choice, and beyond the possibility of their future interfer- ence. This suggestion we throw out simply by way of caution; for while the same principles are constantly applied by inference to all wards alike, it is unsafe to draw broad conclusions or argue with confidence from mere analogies between these different classes of wards.^* § 981. Insane Persons and Infants Contrasted. Thus it is asked whether an insane person under guardianship can make a will, if in fact compos mentis. Clearly, questions of mental capacity and undue influence may arise whenever a will is presented for probate. And prima facie an insane person, if not a spendthrift, under guardianship, is non compos mentis, and his testamentary capacity may well be doubted. It is settled, however, in various States that a valid will may be executed by a person under such guardiansbip, notwithstanding the circum- stances of his situation ; the fact of tesitamentary capacity at the date of execution being open to proof.*' As to the contract of a spendthrift or insane person made before he was placed under guardianship, the law favors the guardian's right of disaffirmance to a certain extent, notwithstanding the ward was an adult when the contract was made ; on the ground, apparently, that the person now a ward was not fit to make a contract in his ovm right which should bind his estate."" And yet the rule here must differ greatly 94. Thus, in Vermont, it is held that 508. But see, as to the wife's agency a spendthrift may be compelled to to manage his business, Motley v. give security to the town of his set- Head, 43 Vt. 633. The contract of a tiement against loss by his becoming person not under guardianship but of chargeable afterwards as a pauper, as unsound mind is not necessarily void, a condition for his release from guar- but will be held voidable or not, ac- dianship. Williston v. White, 11 Tt. cording to circumstances. Copenrath 40. V. Kienby, 83 Ind. 18. And see, as to 95. Breed v. Pratt, 18 Pick. 115. vesting chattel mortgage rights in the The letters of guardianship afford innocent mortgagee, where the mort- prima facie proof of testamentary gage was made by one apparently incapacity, but nothing conclusive, sane and not declared insane. Fay save perhaps where one is adjudged v. Burditt, 81 Ind. 433. Also, as to an idiot. Schouler, Wills, §§ 81, 82. an insane person 's note, taken by one 96. Coombs v. Janvier, 2 Vroom, without notice of his insanity. Shonl- 240; Chandler v. Simmons, 97 Mass. tors v. AUen, 51 Mich. 529. Of. Ed- 1115 EIGHTS AND LIABILITIBa. § 982 from that applicable to infants. An insane person having no legal guardian may sue hy any competent person as his next friend, and the question of sanity or insanity involved in the transaction may be tried collaterally.*' § 982. Responsibility of Guardian to Ward as Wrongdoer, &c. For assault and battery, a ward, like all other persons, is en- titled to damages. But ■where his guardian is the offender, there are technical difBeulties in the way of maintaining a suit. Many authorities allow an infant to sue his guardian by next friend for a tort; though a spendthrift, it is said, cannot do so. His remedy may be found in getting the guardian removed for mis- conduct and securing the appointment of a successor, or perhaps obtaining his discharge from guardianship altogether. An action can then be brought by himself or the new guardian, as the case may be. The guardian may in all cases be held criminally responsible for an injury committed.*' A guardian may be restrained by injunction from committing waste. So he is responsible for damages thus occasioned; and it has been held that a judgment against sureties on the guardian's bond for waste committed by the guardian will not before satis- wards v. Davenport, 20 Fed. R. 756, made by the ward before he was de- ■where one was plainly incapable. An clared insane, the negligence of the insane person's deed of real estate guardian in defending is imputable is treated with great disfavor. to the ward. Weems v. Weems, 73 Rogers v. Blackwell, 49 Mich. 192. Ala. 463. When a lunatic is sup- The guardian may maintain a bill in ported at an asylum, a valid personal equity for a reconveyance. Warfield debt is created, and proceedings may ■V. Fisk, 136 Mass. 219. And he be taken to mortgage his estate to se- should not attempt to ratify a eon- cure payment thereof. Agricultural ■veyance, or convey without judicial Ins. Co. v. Barnard, 96 N. T. 525. authority . Funk, Guardian, v. Eontch- A person thus under guardianship ler, 134 Ind. 68. The legal disability may with the guardian's assent es- of spendthrifts (and semlle of the tabUsh a domicile sufScient for pro- insane under local statute) begins bate of his will. Culver's Appeal, 48 when the guardian is appointed and Conn. 165. And the ward may some- gives bond. Blake v. Potter, 51 Conn. times change his own domicile, if 78 ; Myer v. Tighe, 151 Mass. 354. mentally competent, where the pre- An insane person under guardianship mature death of his guardian pre- usually continues liable to suit and eludes an assent. Mowr v. Latham, tho personal service of summons. In- 17 E. I. 480. gersoll y. Harrison, 48 Mich. 234; 97. Reese v. Reese, 89 6a. 646. and eases cited. The guardian should 98. Mason v. Mason, 19 Pick. 506; also be summoned and defend. Jus- The State v. Willoughby, 76 Mo. 315. tiee V. Ott, 87 Cal. 530. In a suit As to an insane ward, see 89 Ga. 656. a^'ainst his guardian on a contract A guardian has been held liable In § 983 GUAKDIAN AND WAED. 1116 faction bar a suit by the ward against one wbo participated in the waste."* The ward may also sue for use and occupation, although he has a general guardian.^ Where one assumes to be guardian or agent of a guardian, and enters an infant's lands, the infant may elect to treat him as a wrongdoer, and bring trespass, or charge him as a guardian/ So where a guardian wrongfully holds over. But the Ward cannot sue his guardian for money had and received. His proper course, at least in this country, is to institute proceedings for the latter's removal, with settlement of accoimts, and then to sue for breach of the official bond.^ For a tort committed upon a third person by the ward, the guardian is not usually liable; at least not directly.* And in general it is so desirable to deprive the guardian of all possession and control of his ward's estate, when the ward has a civil grievance against him, that the latter's suit in damages ought to be at least accom- panied by proceedings for removal of the guardian from his trust. § 983. Ward's Action or Bill for Account. Whenever guardianship has been terminated, an action of ac- count lies in favor of the ward. And this action is brought by the new guardian, or by next friend ; or by the ward himself, if the period of his legal disability has expired. While his guar- dianship discontinues, chancery permits the ward by next friend to file his bill against the guardian for account. All this seems to apply rather to chancery than probate guardians; since direct proceedings for account in the court which issued letters of guar- dianship, followed by removal of the guardian, if unfaithful, and suit on his probate bond, afford the infant under such guardian- ship an ample and expeditious remedy. But for chancery guar- dians, purely testamentary guardians, and quasi guardians, and under peculiar circumstances, the more expensive and complicated damages for corrupting the virtue of v. Evans, 89 Ga. 656; PouHaine et al. his ward. Brittain v. Cannady, 96 v. PoTiIlain, 76 Ga. 420. Ind. 266. 2. Sherman v. Ballou, 8 Cow. 304; 99. Powell V. Jones, 1 Ired. Eq. Blomfield v. Eyre, 8 Beav. 250. 337. See Bank of Virginia v. Craig, 3. Brooks v. Brooks, 11 Cush. 18 ; 6 Leigh, 399. Thomdike v. Hinckley, 155 Mass. 1. Porter v. Bleiler, 17 Barb. 149. 263. The general guardian refusing See Senseman's Appeal, 21 Pa. St. to collect the purchase price of land, 331; Saviryer v. Knowles, 33 Me. 208. action may be brought in the ward's And see Chilton v. Cabiness, 14 Ala. behalf by a guardian ad litem. Peter- 447; Wilson et al. v. Galey, Guardian, sou v. Baillif, 52 Minn. 386. 103 Ind. 257 (statute). Cf. Bonner 4. Garrigus v. Ellis, 95 Ind. 598. 1117 EIGHTS AND LIABILITIES. § 983 process of a bill in equity becomes the necessary resort. And this in England is still the usual course of procedure, while in most parts of the United States it has gradually gone out of use or has been superseded in great measure altogetber.* But in some cases of qvasi guardiansbip in this country, — the probate court having no jurisdiction at all in the premises, — a qiuisi ward on reaching full age has been allowed to sue in assumpsit for money in the quasi guardian's hands ; for here, as it would appear, the •old action of account was always proper.* In considering a ward's action at law on reaching full age, State practice concedes often a elioice of remedies to the ward even where probate intervention is proper for compelling an account in court. Thus the guardian's failure to settle and pay over within a reasonable time after the ward's disability ends, has been considered of itself a breach of the condition of the probate bond, entitling the ward to sue at once his late guardian.' But if the ward, as he should more prudently do, goes into court and bas a balance found by its adjudication against the guardian, he may treat the failure of the guardian to pay the amount as a new breach of the condition of the bond, dating from the time of default in performing the court's order.' And tbe guardian's failure thus to pay over in accordance with the court's decree creates such a debt in the ward's favor that the remedy of the ward is not exclusively confined to a suit on the guardianship bond, but he may instead sue in his own name, at his own choice.® In short, the general theory is that on the infant ward's attainment of majority tbe guardianship over him 5. Monell v. Monell, 5 Johns. Ch. a party. Black v. Kaiser, 91 Ky. 283; Linton v. Walker, 8 Fla. 144; 422. Minter v. Clark, 92 Tenn. 459. Swan V. Dent, 2 Md. Ch. Ill ; Lemon And equity in peculiar and compli- V. Hansbarger, 6 Gratt. 301; Man- cated cases, where the probate juris- ning V. Manning, 61 Ga. 137; Mac- diction appears inadequate, will apply phers. Inf. 259, 348; Fanning v. it remedies on the adult ward's ap- Chadwiek, 3 Pick. 424; Jones v. plication. Camp, Be, 126 N. T. 377. Beverly, 45 Ala. 161. The sureties As where the guardian in possession under a void probate appointment has himself a life tenant's interest in may thus be held responsible together the fund. with the principal. Corbitt v. Carroll, 6. Pickering v. De Boehemont, 45 50 Ala. 315. As to appointing a re- N. H. 67 ; Field v. Torrey, 7 Vt. 372. ceiver on the ward's bill for account, 7. People v. Seelye, 146 111. 189. see Sage v. Hammonds, 27 Gratt. 651. 8. People v. Seelye, 146 111. 189. To the ward 's action against his 9. Cobb v. Kempton, 154 Mass. 266. guardian to compel a settlement, the An analogous rule prevails in the ad- surety on the guardian 's bond where ministration of estates. And see Lam- snch bond was given should be made bert v. Billheimer, 125 Ind. 519. § 984 GTJAIiDIAN AND WAED. 11 1» ipso facto terminates; only that for convenient purposes bene- ficial to him a judicial supervision and control is exercised for bringing about a business-like adjustment of the late concerns of his wardship. The ward may on attaining his majority bring action against the guardian for money due/" or for services rendered/* after the guardian haa settled his accounts with the probate court." A ward under age cannot compel an accounting** except in equity." Where the ward dies before settlement it must be had with bis legal representative.*' A new guardian appointed may compel an accounting with his predecessor.** A guardian de son tort is not entitled as of right to an accounting.*' § 984. Limitations, Laches. The ward's right to call his guardian to account may be barred by limitation, computed from the time he becomes competent to act. In Pennsylvania it is said that the same principle applies as in other legal proceedings; and eighiteen years' delay after the ward attains majority has been held fatal to a suit.** But in Illinois the rule is differently stated, and the guardian's liability to account is there considerer to last as long as the bond con- tinues in force; the citation to account before the probate court being merely a means to ascertain delinquency as the foundation of a suit, and not of itself a suit at law or in equity.** The former may be regarded as the true doctrine for chancery guardianship or 10. Smith V. Smith, 210 F. 947; 13. MeMnrray's Estate, 107 la. State V. Joest, 46 Ind. 233, 235 ; Hays 648, 78 N. W. 691 ; Guillebert v. V. Walker, 90 Ind. 105; Hix v. Dun- Grenier, 107 La. 614, 32 So. 238 can (Tex. Civ. App. 1907), 99 S. W. (unwise ward married cannot compel 422 (altough defendant retired aa an accounting where not emanci- gnardian before ward reached major- pated). ity) ; ScoviUe v. Brock, 76 Vt. 385, 14. Peck v. Braman (Ind. 1828) 2 57 A. 967 (for failure to sell stocks). Blackf. 141. 11. Ziedeman v. Molasky, 118 Mo. 15. Livermore v. Batti, 150 Cal. App. 106, 94 S. W. 754; Champlin v. 458, 89 P. 327. Slocum (R. I.), 103 A. 706 (adult by 16 Cobleigh v. Matheny, 181 HL second guardian may sue first guar- App. 170. dian for services). 17. StuU v. Benedict, 10 Cal. App. 12. Campbell v. Scott, 3 Ind. T. 462, 619, 102 P. 961. 58 S. W. 719; Ludowig v. Weber, 35 18. Bones' Appeal, 27 Pa. St. 492. La. Ann. 579; Cobb v. Kempton, 154 See Magruder v. Goodwin, P. & H. Mass. 266, 28 N. E. 264; Hopkins v. 561; Adams v. Eeviere, 59 Ga. 793. Erskine (Me.), 107 A. 829. See con- 19. Gilbert v. Guptill, 34 DL 112. tra, Jones v. Jones, 91 Ind. 378 (set- And see last chapter. tiement not necessary). 1119 BIGHTS AND LIABILITIES. § 984: proceedings in the nature of a bill for account ; the latter for pro- bate guardianship. The guardian's administrator in either case, if the guardian dies, should close up the trust accounts, if not already settled, before he makes distribution; since he may otherwise re- main liable for many years. ^° But in most States the general subject of limitation in all trusts is expressly regulated by statute.*'- Short delays by the ward, after coming of age, to require ac- counts and institute a suit on the bond, are not to be construed to the prejudice of his rights against either guardian or sureties."* But one who has been under guardianship is chargeable with con- structive notice of the probate papers on file, and proceedings in the court relative thereto, and should prosecute his rights sea- sonably.*' And special circumstances, such as a final settlement with the ward in connection witb lapse of time, make the barrier stronger.** A suit for failure of a guardian to reedem from a foreclosure is barred by laches when it is brought twenty years after the plaintiff has come of age and after the guardian had died and thirty-five years after the transaction complained of although the plaintiff claims that he has just learned of his interest In tbe property. The death of the guardian and the lapse of years renders laches an equitable defence to the suit.*" 20. Musser v. Oliver, 21 Pa. St. count, or obtain a judgment on the 362. See Felton v. Long, 8 Ired. Eq. bond, before proving a claim against 224; Mitchell v. Williama, 27 Mo. the estate of his insolvent guardian. 399; Pearson v. McMillan, 37 Miss. Murray v. Wood, 144 Mass. 195. No 588; Horton et al. v. Hastings, 128 action by the ward lies at law for Ind. 103. Equitable claim of ward moneys in the guardian's hands until allowed against deceased guardian's his accounts have been settled in estate in Dodson v. McKelvey, 93 court. Kugler v. Prien, imp., 62 Wis. Mich. 263. 248. And see Gillespie v. Winn, 65 21. No statute of limitations begins Cal. 429. But where settlement is de- to run before the ward's legal disabil- layed, suit lies on the guardian's bond ity actually ends. Minter v. Clark, 92 in a fit case before his final settle- Tenn. 459. And peculiar circumstances ment. The State to the Use of Koch wiU require equity to extend the v. Eoeper, 82 Mo. 57. period Matter of Petition of Camp, 24. Eailsback v. Williamson, 88 El. 126 N. T. 377. 494. See § 389. 22 Pfeiffer v. Knapp, 17 Fla. 144. 25. Sweet v. Lowry, 123 Minn. 13, 23! Robert V. Morrin, 27 Mich. 306. 142 N. W. 883, 47 L. E. A. (N. S.) The ward reaching age should either 451. compel the guardian to settle his ao- I 986 GUAKDIAN AHD WAKD. 1130 § 985, Ward's Right to Recover Embezzled Property, &c Courts of chancery will always aid the ward in recovering prop- erty embezzled, concealed, or conveyed away in fraud of his rights. The proper mode of procedure is by bill in equity. And while a probate guardian suspected of fraud should be cited to account, it has been held that, his estate being insolvent and his sureties irres?ponsible, it is not necessary for the ward to sue them before he can file a bill to recover such property as he can trace.** A summary process in the nature of an inquisition is provided by statute in some States, for ascertaining the whereabouts of stolen and missing property belonging to wards, by means of which all suspected persons, including the guardian himself, can be sum- moned before the probate court to answer lawful inquiries under oath.^' And a writ of ne exeat is sometimes issued to protect a minor's interest, where the latter's property has been squandered or embezzled, and the guardian is about to abscond.^' Where a guardian squanders the funds of his ward they may be followed into the hands of any person who receives them with knowledge of the trust.^® § 986. Fraudulent Transactions Set Aside on Ward's Behalf. Fraudulent transactions cannot stand as against the ward. And in cases of this sort, equity will go to the substance rather than the form, in order to ascertain the real motives of one who pro- fesses to turn over trust property to third parties, and justice will be done if possible. Where a guardian, for instance, trans- fers a note with words importing trust to his private creditors as security for his own debt, the ward can follow it into their hands, or against other parties, and stop payment, whether sufficient con- sideration was paid by the holder or not.^" But in all cases of this sort, third parties should have some notice, actual or con- structive, of the existence of a trust; otherwise they cannot be made to suffer loss further than the usual rules of stolen property apply.*^ Eights of wards to real estate are frequently protected on these principles. Thus, where a mother interested in certain lands with her children obtained partition after being appointed 2e. Hill V. Melntire, 39 N. H. 410. N. D. 16, 161 N. "W. 562, L. B, A. 27. Shermau v. Brewer, 11 Gray, 1918E, 326. 210. 30. Lockhart v. Phinips, 1 Ired. Eq. 28. People v. Barton, 16 Col. 75. 342; Lemley v. Atwood, 65 N. C. 46. 29. TJnited States Fidelity & Guar- 31. Hill v. Johnston, 3 IrodL Bq. anty Co. v. Citizens' State Bank, 36 432. 1121 SIGHTS AHD LIABILITIES, § 986 their guardian, bought in the premises, and, without paying the full purchase-money, gave a mortgage, taking an assignment to herself as guardian, the claim of the mortgagee with notice was postponed to the children's share.*^ So where a guardian who held a mortgage in his own right agreed with the mortgagor to sub- stitute the ward's money for his own, letting the securities re- main as before, this was held to be an equitable investment of the ward's money, and good against any subsequent disposition which the guardian might make, while in failing circumstances, to secure his own creditor.^'' The guardian's collusion with third parties to defeat any equity of the ward in land cannot prevail against the ward who seeks in season to set the conveyance aside.'* And in any strong case of an illegal sale of the ward's property contrary to statute, and the conversion of the proceeds to the guardian's own use, a ward has not only his remedy upon the guardian's bond, but can repudiate the sale and recover his property.'" But fraud is a question of evidence. And the payment of a debt to a guardian before it is due is not sufficient in itself to establish an unfair purpose. Hence it was decided in a l^Torth Carolina case, that where one owing a bond to a guardian in failing circum- stances, the bond being in behalf of the ward, and not yet due, held also a note against the guardian himself, which he gave to an attorney to collect, with explicit instructions not to make an ex- change, but to collect the note given him, and with the proceeds to take up the bond due the guardian, and such attorney received a bank check from the guardian, and believing the money to be in bank, and that the check was as good as money, returned the note to the guardian, and took up the bond in his hands, these acts having been performed in good faith, the ward could not pursue his former debtor.'* 32. Messervey v. Barelli, 2 Hill Ch. 35. State v. Murray, 24 Md. 310. 567. See infra, §§ 787, 788. 33. Evertson v. Evertson, 5 Paige, 38. Wynne v. Benbury, 4 Jones, Eq. 644. In this case the creditor had not 395. And see, as to fraud generally, even notice of the ward's rights. And Story, Bq. Juris, §§ 317-320; Harri- see Gannaway v. Tapley, 1 Cold. 572; son v. Bradley, 5 Ired. Eq. 136; Daw- Eobinson v. Eobinson, 22 la. 427. son v. Massey, 1 Ball & B. 329; Henry 34. Beazley v. Harris, 1 Bush, 533. v. Pennington, 11 B. Monr. 55. See McFarland v. Conlee, 44 HI. 455. 71 § 987 GUAEDIAN AND WAKD. 1122 § 987. Ward's Rights to Ratify or Repudiate Transactions of Guardian; Estoppel. We have seen that the transactions of a guardian on behalf of his infant ward are valid, if within the scope of his general powers, or authorized by the courts of equity ; sustainable, though neither within the scope of his powers nor previously authorized, if the court afterwards deems them pruden't or beneficial to the ward; in other cases, subject to the ward's own disaffirmance on reaching majority. Herein consists the infant's right of election. Few acts of the guardian can be pronounced valid, except in the sense that they are authorized, either generally or specially, by the court which exercises supervision; and few of his transactions can be so utterly without authority as to be absolutely void per se. The general rule of election recognizes, then, two principles : fir^ the privilege of the infant ward, on attaining full age, to avoid his guardian's doubtful transaction; second, the right of courts of equity to control this privilege by interposing to pronounce the transaction good. The whole doctrine, therefore, seems in strict accordance with that more general rule, that the accounts of the guardian are open to the inspection of the ward at majority, and may be disputed down to the smallest item. And where, as in the case of probate guardians, settlements out of court do not dispense with final returns for preservation and public record, the tendency of the decisions must be in favor of bringing the question of affirmance or disaffirmance of the guardian's transaction before the court, instead of leaving it to acts of the late ward in pais. These principles suffice for general application to compromises, submissions to arbitration, investments and reinvestments of per- sonal property, and similar transactions, undertaken by the guar- dian on the strength of a previous order of court, or at the risk of its subsequent approval.*' Yet statutes sometimes interpose to render such transactions absolutely perfect on permission of the court. And where the giTardian's position in a transaction is that of trustee of an express trust, the transaction will conclude the ward.** Infants, as we shall see elsewhere, are incapable of assent- ing during infancy to anything prejudicial to their property interests ; and any consent so procured, if not actually void, can 37. Bamaby v. Bamaby, 1 Pick. 38. Loehr v. Colbom, 93 Ind. 24. 221. See supra, chs. 6, 8. 112? RIGHTS AND LIABILITIES. § 987 at all events be retracted after the infant reaches majority, except so far as the court rightfully controls his choice.*' The ward is not estopped by the unauthorized acts of the guar- dian,*" and the ward while under age cannot even by requesting an unauthorized act estop himself from complaining of it.*^ The ward may ratify the guardian's unauthorized acts after he comes of full age.*^ But the ward may be barred by the lapse of time alone, or of time in connection with his own acts, from disaffirming in law or equity his own transactions or his guardian's unauthorized acts; though to be barred by his own acts in all such transactions, it should appear that he acted after termination of his disability, with deliberation and on full knowledge of the essential facts.** Thus, where a guardian has exceeded his ward's income in pur- chasing for him a horse and buggy, there will be a ratification presumed from circumstances showing that the ward used them after majority and received the proceeds of their sale.** But mere silent acquiescence in a guardian's unlawful and prejudicial acts is not readily treated as debarring the ward from asserting his rights at majority; and to estop the latter by ratifi- cation, that ratification should be clear and founded upon a knowl- 39. Part V., chs. 2, 3. peal, 23 Pa. St. 44; Sherry v. Sans- 40. Hobbs V. Nastville, C. & St. L. berry, 3 Ind. 320; Penn v. Heisey, 19 By. Co., 122 Ala. 602, 26 So. 139, 82 111. 295; Trader v. Lowe, 45 Md. 1; Am. St. E. 103; Brandau v. Greer, Ferguson v. Lowery, 54 Ala. 510; 95 Miss. 100, 48 So. 519; Draper v. Singleton v. Love, 1 Head, 357; Mac- Clayton, 87 Neb. 443, 127 N. W. 369'; phers. Inf. 538-543; Lee v. Brown, 4 WipfEv. Heder (Tex. Civ. App. 1897), Ves. 361; Cory v. Gertcken, 2 Madd. 41 S. W. 164; Headley v. Hoopen- 40; Allfrey v. Allfrey, 11 Jur. 981; gamer, 60 W. Va. 626, 55 S. E. 744. Manson v. Simplot, 119 la. 94, 93 N. 41. Reynolds v. Garber-Buick Co., W. 75; Manion v. Conley, 22 Ky. Law 149 N. W. 985, L. E. A. 1915C, 362. Eep. 850, 59 S. W. 11 (two years) ; 42. Dale v. Dale (Ark.), 203 S. W. Davis v. Eichards, 22 Ky. Law Eep. 258 (receipt in full); Brandau v. 590, 58 S. W. 477; Jones v. Jones, Greer, 95 Miss. 100, 48 So. 519 (on 51 La. Ann. 636, 25 So. 368; In re proof of full knowledge only) ; Hoyt Klunck, 68 N. T. S. 629, 33 Misc. v. DoUar Sav. Bank of the City of Eep. 267; Baylor v. Pulkerson's New Tork, 175 N. T. S. 377. See Ex'rs, 96 Va. 265, 31 S. E. 63. See (Civ. App.) Merrill v. Bradley, 121 S. Young v. Downey, 150 Mo. 317, 51 W 561 (certified questions answered), S. W. 751; Le Eoy v. Jaeobosky, 136 102 Tex. 481, 119 8. W. 297. N. C. 433, 48 S. E. 796, 67 L. E. A. 43. Fish V. Miller, 1 HofE. Ch. 267 ; 977. Binion v. Miller, 27 Ga. 78; Seott v. 44. Caffey v. McMiehael, 64 N. C. Freeland 7 S. & M. 409 ; Hume v. 507. As to lapse of time as a barrier, Hume, 3' Barr, 144; WorreU's Ap- see supra, § 984. 987 GTTAEDIAN AND WAED. 1124: edge of tlie whole circumstances.*" And where the ward was not informed of his rights sooner, he is free to assert them.*" To as- sert them, however, against the guardian so as to pursue the innocent sureties on the guardian's hond, or a former guardian, is another matter.*^ An unauthorized act may be ratified by the court,*' or by a final settlement after the ward becomes of age.** The ward or a succeeding guardian may ratify an unauthorized investment if it increases in value and disaffirm it if it depre- ciates.'" A demand by the ward on attaining full age of the proceeds of an investment may ratify it,°^ but suit for the proceeds may not be an estoppel to set aside an unauthorized investment where the position of the defendant was in no way affected and the suit was dismissed.'^ But as to transactions which involve the purchase or sale of real estate on the infant ward's behalf, the rule is very strict, as we have already seen. The ward is not bound even by his guardian's 45. Foley v. Mutual Life Co., 138 N. T. 333. Cf. Young v. Walker, 70 Miss. 813; Curtis v. Devoe, 121 Cal. 468, 53 P. 936; Gulf, C. & S. F. Ey. Co. V. Lemons (Tex. Civ. App.), 152 S. W. 1189. 46. As where the guardian had care- lessly and without right paid over cer- tain proceeds of the ward's property to the ward's mother. MulhoUand's Estate T. Meeker's Appeal, 154 Pa. St. 491. 47. See Hart v. Stribling, 25 Fla. 435; Hill v. Lancaster, 88 Ky. 338. Where the guardian is, at the ward's majority, appointed her trustee, or goes on as her attorney, some affirma- tive and unequivocal act by which he elects to hold the fund in the new capacity may be regarded favorably as to the surety on the guardianship bond. Tittman v. Green, 108 Mo. 22. Cf. § 961. Settlement of a decedent's estate is not to be reopened after fifty years at the instance of one distributee who was an infant when the decree was entered. Seldner v. McCreery, 75 Md. 287. Nor are heirs of a de- ceased ward to be favored in re- opening what appears to have been fairly affirmed, so as to disturb vested rights. Kingsley v. Jordan, 85 Me. 137. 48. In re Dilworth's Estate, 243 Pa. 475, 90 A. 356. See McCutchen v. Eoush, 139 la. 351, 115 N. W. 903 (or- der of court authorizing guardian to prosecute a claim for unauthorized transfer is not a ratification) . 49. Ellender v. Ellender Bros., 135 La. 45, 64 So. 977; Hoverstoek v. Rogers, 177 Mo. App. 446, 163 S. W. 924; Borcher v. McGuire, 85 Neb. 646, 124 N. W. Ill; Kulp v. Hei- mann, 90 Neb. 167, 133 N. W. 206; O'Donnell v. Same, Id. 208; Weekes V. Same, Id.; Lasoys Oil Co. v. Zul- key, 40 Okla. 690, 140 P. 160. Seo Grain v. Tremont Lumber Co., 134 La. 276, 63 So. 901 (not where proceeds received without knowledge). See Fahey v. Fahey, 128 La. 503, 54 So. 973. See Howe v. Blomenkamp, 88 Neb. 389, 129 N. W. 539 (not by set- tlement with another guardian). 50. Eogers v. Dickey, 117 Ga. 819, 45 S. E. 71. 51. Steinhart v. Gregory, 176 Ala. 368, 58 So. 266. 53. Featherstone v. Betlejewski, 78 lU. App. 59. 1125 EIGHTS AND LIABILITIES, § 987 exchange of his lands by way of equivalent"* A defective sale of real estate under the statute may in some States be set aside on a bill in equity filed by the infant against the guardian and the purchasers."* And where the guardian contracts to buy real estate for the ward's benefit, the ward, on reaching majority, may either complete the contract or reject it, and look to the guardian for payment."" But he cannot, in absence of fraud, compel the vendor to refund the money paid down as a bonus."® IsTor can he, having once renounced, seek to be relieved against such renunciation."^ The right of election goes to the ward's personal representatives if he dies under age."* And it would appear to be a general principle that where the ward, after arriving of age, with full knowledge of all the facts and in the absence of fraud, receives and retains the purchase- money arising from the guardian's sale of his land, he cannot question the validity of the sale afterwards,"" and the ward cannot keep the property and have it free from the vendor's lien,*" but acceptance of returns from the property does not amount to a ratification.®^ In other words, the ward may choose whether to repudiate the sale and recover the land, or ratify it and claim the purchase-money. Without some proper judicial sanction, at least, a guardian cannot divest his ward of rights in real estate against the ward's power to assent or dissent, when sui juris.^'^ 53. Morgan v. Johnson, 68 HI. IffO. Parmele v. MeGinty, 52 Miss. 476; 54. 2 Kent, Com. 230; Eckford v. Shorter v. Frazer, 64 Ala. 74; O'Con- De Kay, 8 Paige, 89; Westbrook v. ner v. Carver, 12 Heiak. 436. See post, Comstoek, Walker Ch. 314. See supra, Part V, ch. 5, as to disaffirmance by ch. 7. As to adjustment of rents and infant without restitution; Bevis v. improvements in such cases, see An- Heflin, 63 Ind. 129. derson v. Layton, 3 Bush, 87; Hoi- 60. Howard v. Cassels, 105 Ga. 412, brook v. Brooks, 33 Conn. 347; Sum- 31 S. E. 562, 70 Am. St. E. 44. mers v. Howard, 33 Ark. 490. And 61. Knights Templars' & Masons' see Tatum v. Holliday, 59 Mo. 422. Lffe Indemnity Co. v. Crayton, 209 55. Loyd v. Malone, 23 HI. 43; 111. 550, 70 N. E. 1066, 110 111. App. Hopk. 337; Murrill v. Humphrey, 88 648; Manternach v. Studt, 240 HI. N. C. 138. 464, 88 N. E. 1000; Bachelor v. Korb, 5G. Yerger v. Jones, 16 How. 30. 58 Neb. 122, 78 N. W. 485, 76 Am. 57. Ployd V. Johnston, 2 Litt. 109. St. E. 70 (proceeds of sale applied to 58. Singleton v. Love, 1 Head, 357; maintenance of ward does not amount Dean v. Feeley, 66 Ga. 273. Whether to ratification). the right of election applies where 62. Eainey v. Chambers, 56 Tex. 17. the guardian took land in discharge And see, as to setting aside a void of a predecessor's indebtedness, see decree of sale, Eeynolds v. McCurry Beam v. Froneberger, 75 N. C. 540; et al., 100 HI. 356; White et al. v. Clayton v. McKinnon, 54 Tex. 206. Clawson et al., 79 Ind. 188. 59. Deford v. Mercer, 24 la. 118; § 988 GUAEDIAN AND WAED. 1126 The ward's disaffirmance of a sale may appear by his suit to recover the value of the property sold.** But a void deed executed by a guardian in the name of the ward cannot be ratified by the ward." § 988. Resulting Trusts; Guardian's Misuse of Funds; Pur- chase of Ward's Property, &c. All advantageous bargains which a guardian makes with the ward's funds are also considered subject to the ward's election, either to repudiate or to uphold the contract and take the profits. This applies, in general, to improper acts ; as where the guardian speculates with the trust funds, or invests them in his own busi- ness, or, in a word, converts them to his own use. The ward may either take the investment as he finds it, with all the profits, or demand the original fund, with interest ; though he cannot avoid a transaction in part and ratify.®^ The guardian is liable for the ward's estate which he has converted to his own use,°° and for expenses of recovering such proeprty.*' One receiving money from the guardian knowing that it belonged to the ward is responsible." And where the ward has declined to elect whether he will take 63. Ayer & Lord Tie Co. v. Wither- epoon's Adm'r, 30 Ky. Law Eep. 1067, 100 S. W. 259. 64. DelUnger v. Foltz, 93 Va. 729, 25 S. E. 998. See Clay v. Thomas, 178 Ky. 199, 198 S. "W. 762; Slafter v. Savage, 95 A. 790. 65. 2 Kent, Com. 230; Docker v. Somes, 2 M. & K. 664; Kyle v. Bar- nett, 17 Ala. 306; Singleton v. Love, 1 Head, 357; White v. Parker, 8 Barb. 48; Jones v. Beverley, 45 Ala. 161; swpra, §§ 352-354. A female ward living with her father on land mort- gaged by him to her guardian does not necessarily ratify the guardian's loan on the mortgage. Winslow v. The People, 117 111. 152. After re- pudiation of the transaction, the ward cannot ask to have the deed reformed. Eowley v. Towsley, 53 Mich. 329. 66. Moore v. Smith, 182 F. 540; Covey V. Neff, 63 Ind. 391; In re Stude's Estate (la.), 162 N. W. 10; Sims V. Billington, 50 La. Ann. 968, 24 So. 637; In re Terry's Estate, 65 N. T. 8. 655, 31 Misc. 477; In re Klein, 142 N. Y. 8. 557, 80 Misc. 377; Tonges v. Vanderveer Oanarsie Improvement Syndicate, 148 N. Y. 8. 748 ; Duffy v. Williams, 148 N. C. 530, 62 S. E. 611 (where funds mingled) ; American Surety Oo. of New York v. Hardwiek (Tex. Civ. App.), 186 S. W. 804; Hunter v. Lawrence's Adm'r (Va.), 11 Gratt. Ill, 62 Am. Dec. 640; Burwell v. Burwell's Guardian, 78 Va. 574. See Buffalo Loan, Trust & Safe-Deposit Co. v. Leonard, 41 N. Y. S. 294, 9 App. Div. 384, 75 N. Y. St. Eep. 705, 154 N. Y. 141, 47 N. E. 966 (liability for negligently allowing executor to waste estate). 67. State ex rel. Patterson v. Titt- man, 134 Mo. 162, 35 S. W. 579. 68. Steinhart v. Gregory, 176 Ala. 368, 58 So. 266; Montgomery v. Eauer, 125 Cal. 227, 57 P. 894 (although ap- plied to a personal debt to him from the guardian) ; Empire State Surety Co. V. Cohen, 156 N. Y. S. 935, 93 Misc. 299. 1127 , EIGHTS AND LIABILITIES. § 988 intereet or the profits derived by his guardian from au investment which he was not authorized to make (as in the guardian's busi- ness), the court may make the election for the ward."" And so as to electing to take land which has enhanced in value since the guardian took title to himself." For it is right that the ward should enjoy all the advantages which have accrued from the use of his ovni money; and it is also right that the guardian should not derive gain from the ward's loss. The old rule of chancery in this respect has been gradually relaxed; so that many acts of a trustee, which might once have been considered fraudulent and void are now deemed voidable only." Thus it is that the rule may now be considered well settled that the guardian who buys at the sale of his ward's lands or other property is secure in his purchase, and retains all the benefits arising therefrom, unless the ward chooses to set it aside and claims to be reinstated in his own possession. This rule is laid down, however, with great caution in the courts ; '''' and it is frequently said that the transaction is treated all the same, whether the guar- dian bought the property outright or there was a colorable pur- chase by means of third parties; moreover, that such sales, in order to stand at all, must have been conducted fairly and in good faith.'* Where the circumgtances show fraud and collusion, courts of equity hesitate little in setting the transaction aside.''* And a material question for consideration in such sales is whether a fair price was paid for the property. Parties affected with notice of the circumstances cannot complain if their title to real estate becomes thereby impaired ; but it is hard that purchasers without notice should suffer. On this latter principle, and for the security of title, rests a decision in Massachusetts, to the effect that the guardian's purchase of his ward's real estate is voidable by the 68. Segnin's Appeal, 103 Pa. St. Freeland, 7 S. & M. 409; Doe v. Has- 139. sell, 68 N. C. 213; Elrod v. Lancaster, 70. See Tealie v. Hoyte, 3 Tenn.Ch. 2 Head, 571; Patton v. Thompaon, 2 651. Jones Eq. 285 ; Chorpenning 's Appeal, 71. See Hill on Trustees, 159, 536; 32 Pa. St. 315; Crump e% aX., Ex Cassedy v. Casey, 58 la. 326. parte, 16 Lea, 732. And see supra, 72. See Brockett v. Eichardson, 61 chs. 6, 7. MisB. 766, as to a joint purchase; 74. Hayward v. EUia, 13 Pick. 272. also Barber v. Bowen, 47 Minn. 118, And see Winter v. Truax, 87 Mich, •where a purchase by the guardian of 324, where a guardian sold and pro- minor heirs at a regular adminiatra- cured an immediate reconveyance to tor's sale was upheld. himself by the purchaser at the same 73. 8 Kent, Com. 230; Scott v. price. § 988 GUAEDIAN AND WA£D. 1128 ward only as against the guardian, or a purchaser claiming under him with knowledge of the circumstances; and not as against a subsequent grantee or mortgagee without notice,'" In general, if with the ward's funds the guardian purchases land and takes title to himself, a subsequent purchaser's rights should depend upon good faith and the question whether he had due notice of the ward's title.'* The fact that on final settlement a decree is rendered against the guardian and his sureties for such funds, does not estop the ward from enforcing his resulting trust in the land." And a guardian's sale of his own property to the ward may be disavowed by the latter on coming of age.'* If the ward does not ratify an unauthorized investment, neither purity of intention nor diligence and good faith in endeavoring to prevent loss thereby will absolve the guardian from liability there- for." But, in general, the guardian may discharge himself by turning over what securities and property he has taken in good faith and in the rightful exercise of his trust, if it remains as the result of prudent management of the estate on his part, whether valuable or worthless at the time of final settlement ; his liability extending to property of the ward which has come to his actual or potential control; and securities being turned over at their just valuation, like specific corporeal chattels.*" But a settlement with the ward by turning over what the guardian knows to be bad securities improperly taken should not be countenanced.*^ A guardian ought not to hold, as property of his ward, notes or securities which on their face evidence a debt due to the guardian 75. Wyman v. Hooper, 2 Gray, 141. ehase-money, and then used the ward's As to the English doctrine, gee Morse money to pay for the land, see French v. Eoyal, 13 Ves. 372 ; Gary v. Gary, et al. v. Sheplor et al., 83 Ind. 266. 2 Sch. & Lef. 173 ; Naylor v. Winch, 1 77. Eobinson v. Pebworth, 71 Ala. Sim. & Stu. 567. Here that construct- 240. ive notice which the public records 78. Hendee v. Cleaveland, 54 Vt. furnish is perhaps to be deemed un- 142; Grandstrand, Be, 49 Minn. 438. availing on the ward's behalf. And 79. May v. Duke, 61 Ala. 53. see Taylor v. Brown, 55 Mich. 482. 80. Supra, eh. 6; State v. Foy, 71 76. Title running to the guardian as N. C. 527; Goodson v. Goodson, 6 Ired. " trustee " should put such third party Eq. 238. Guardian held liable for upon guard. Morrison v. Kinstra, 55 carelessness in procuring the issue of Miss. 71. And see Armitage v. Snow- an erroneous decree of distribution den, 41 Md. 119; Bevis v. Heflin, 63 to the ward's injury. Pierce v. Pres- Md. 129; White v. Izelin, 26 Minn. cott, 128 Mass. 140. 487; Webster v. Bebinger, 70 Ind. 9. 81. Burwell v. Burwell, 78 Va. 574. For a case where A. bought land, his It is a fraud upon the ward for a grantor retaining a lien for the pur- guardian to turn over to this sucees- 1129 BIGHTS AND LIABILITIES. § 988 or hia predecessor in his individual right, unidentified as the ward's property.** In equity the ward may follow not only money belonging to him which has been invested in land by his guardian, but any specific chattel purchased with his funds, into which his funds can be clearly traced, even though the guardian took title to himself, if, however, the ward elects to take the money, such property vests absolutely in the guardian, and those standing upon the guardian's title." And unless the fund can be traced into some specific thing or be clearly identified, the ward, of course, cannot assert his right therein ; ** and the usual rules apply as to bona fide third parties who may have meantime acquired title. We may finally observe that a ward who repudiates a transaction to the disadvantage of some bona fide third person, ought in justice to offer to restore the consideration as far as he is able,*" but the ward may recover from one who takes with knowledge of improper use of the ward's funds.*' A resulting trust to the ward may be established, on his election, in lands which the guardian has taken in his own or another's name, but upon consideration out of the ward's estate.*^ And a guardian may for convenience have taken real estate or even mort- gage notes or other securities in his own name, and yet by his dealings show a plain intent to hold it in trust for his ward, sub- ject to expenses incurred in its management and accounting for its income and proceeds, and giving the ward the right to claim title by proceedings in equity or otherwise.** The guardian is liable for losses caused by his unauthorized use sor the latter 's note to him instead his own note in payment of the price of funds of the estate. State v. Les- of his ward 's property, is a breach of lie 83 Mo. 60. duty. Heflen v. Bevis et ux., 82 Ind. 82. State v. Greensdale, 106 Ind. 388. 364. For a guardian to take notes for 84. Vason v. Bell, 53 Ga. 416. money belonging to his ward, payable 85. See Myrick v. Jacks, 39 Ark. to himself in his own name, is not in 293 ; Part V, eh. 5. law a conversion, though tending per- 8G. Williams v. Francis (Okla.), haps to show a conversion. Richard- 166 P. 699; Jm re Anderson, 97 Wash. son V. State, 55 Ind. 381, doubted in 688, 167 P. 71. State V. Greensdale, «Mpra. See § 385. 87. Hamnett's Appeal, 72 Pa. St. 83. Chanslor v. Chanslor, 11 Bush, 337; Pfeiffer v. Knapp, 17.Fla. 144; 663. As to recovering the thing from Summers v. Howard, ?3 Ark. 490; third parties after an unproductive Sterling v. Arnold, 54 Ga. 690; White- suit on the guardian's bond, see head v. Jones, 56 Ala. 152 ; Patterson Branch V. De Bose, 55 Ga. 21. For v. Booth, 103 Mo. 422. the guardian to take a surrender of 88. Fogler v. Buck, 66 Me. 205. § 989 GTJABDIAN AND WABD. 1130 of funds/" or by his negligence in handling them," but the guar- dian is not an insurer and ig not liable for lossea where he has acted in good faith and without negligence.'^ The guardian must make good the loss whatever it may be.*'' The fact liat the guardian took a note in his own personal name is an indication of fraud."* That a guardian should have been charged a greater rate of interrat than normal on some transac- tions does not characterize as fraudulent prior transactions which were honest"* A fraudulent settlement of the ward's cause of action may be vacated though it has been approved by the court and the other party to the settlement did not participate in the fraud."° § 989. Transactions Between Guardian and Ward; Undue Influence. This briags us to the general subject of transactions between the guardian and ward, from which the former derives a benefit Here, as in the guardian's purchases, equity is not disposed to favor him. " In this class of cases," says Judge Story, " there is often to be found some intermixture of deceit, imposition, over- reaching, unconscionable advantage, or other mark of direct and positive fraud." "* Equity will relieve against such transactions, 89. Rogers v. Dickey, 117 Ga. 819, Owens v. Anderson, 6 K. Law Eep. 45 S. E. 71; Selph v. Burton's Adm'r, 446; Hancock v. Cooper, 18 Ky. Law 34 Ky. Law Eep. 310, 68 S. W. 407 Eep. 966, 38 S. W. 883 ; Succession of (removal of property from State by Guillebert, 133 La. 603, 63 So. 237; taking mortgage on land in another In re Pinohefski, 166 N. T. S. 204, State). 179 App. Div. 578; In re Clark's Es- 90. Boaz V. Milliken, 83 Ky. 634, 7 tate, 39 Pa. Super. Ct. 445 ; In re Ky. Law Eep. 777 (fraud of another Glassbumer's Estate, 40 Pa. Super, made possible by gross neglect of Ct. 134; Murph v. MeCullough, 40 guardian) ; Taylor v. Kellogg, 103 Tex. Civ. App. 403, 90 S. W. 69 (fail- Mo. App. 258, 77 S. W. 130; Ander- ure of bank); Windon v. Stewart, 43 son V. Anderson (Okla.), 165 P. 145 W. Va. 711, 28 S. E. 776 (error of (failure to taking security) ; Mount- judgment) . castle V. MUls, 58 Tenn. 267; Abrams 92. Pearson v. Haydel, 87 Mo. App. V. United States Fidelity & Guaranty 495 (loan less value of security). Co., 127 Wis. 579, 106 N. W. 1091, 5 93. Slauter v. Favorite, 107 Ind. L. E. A. 575, 115 Am. St. E. 1091 391, 4 N. E. 880, 57 Am. E. 106. (leaving funds in hands of attorney 94. Smith v. Smith, 45 Mont. 535, for investment). See Easton v. Som- 125 P. 987. ervillOj 111 la. 164, 82 N. W. 475, 95. Dasieh v. La Eue Mining Co., 83 Am. St. K. 503 (no liability where 136 Minn. 194, 148 N. W. 45. See no damage). Bunch v. Foreman Blades Lumber 91. Beach v. Moser, 4 Kan. App. Co., 174 N. C. 8, 93 8. E. 374. 66, 46 P. 302 (default of agent) ; 98. Story, Eq. Juris., § 307. 1131 EIGHTS AND LIABILITIES. § 990 on the general principle of utility, although there may not have been actual imposition; but if an improper advantage has been. taken, the ground for relief is still stronger. And it is noticeable that a more stringent rule has been laid down as to guardians than applies to transactions between parent and child ; for a guardian is not supposed to be influenced by that affection for his ward which parents entertain towards their own offspring, and therefore has no such powerful check upon his selfish feelings.*' From the confidential nature of the relationship of guardian and ward, it will be presumed that the ward acts under the influ- ence of the guardian, and all transactions and dealings between them, prejudicially affecting the interests of the ward, will be held to be constructively fraudulent, and this presumption continues even after the guardianship is ended, when the affairs of the guar- dianship have not been fully settled; and transactions between them, during the continuation of the presumed influence, which are injurious to the ward, will be set aside, unless shown to be the deliberate act of the ward after full knowledge of his rights. The mere fact that the ward at the time of the settlement had inde- pendent counsel does not of itself relea&e the guardian, but only if it then appears that he made a full disclosure does he discharge his duty."" A guardian may have dealings with the ward provided they are on close scrutiny shown to be fair,"® but no dealing between them to the advantage of the guardian will be upheld.^ § 990. Situation of Parties at Final Settlement of Accounts. Such questions generally arise at and about the time the ward attains majority, and pending the final settlement of the guardian's 97. Pierce v. Waring, cited 1 Ves. tract; and this even though the ward 380; Hylton v. Hylton, 2 Ves. 547; was ignorant that he had a right to Hatch V. Hatch, 9 Ves. 296. See Hill disaffirm. Clark v. Van Court, 100 on Trustees, 157-160. A ward may, Ind. 113. after he becomes of age, disaffirm a 98. Harrison v. Harrison (N. M.), contract which he made while an in- 155 P. 356, L. R. A. 1916E, 854. fant with his guardian, without re- 99. Waldstein v. Bamett, 112 Ark. storing or offering to restore the 141, 165 S. W. 459 (purchase of property which he purchased and re- ward's property) ; Lamkin v. Eobin- ceived under the contract; but where, son, 34 Ohio Cir. Ct. E. 91 (judg. after majority and without fraud or affd., 88 Ohio St. 603, 106 N. E. undue influence, such ward executes 1065). See Akin v. Eonflls, 150 P. to his guardian a receipt for the value 194. of the porperty received by him, such 1. Beaven v. Stuart (U. S. C. C. A. act is a valid ratification of the eon- Ala.), 250 F. 972; Stuart v. Beaven, § 990 GUAEDIAN AND WAED. 1132 accounts. The English rule is very strict, and courts are ex- tremely watchful to prevent all undue advatnage at this critical period. Therefore gifts and conveyances of the ward's property, in consideration of the guardian's services, on a final adjustment, may be set aside afterward in equity, even after the ward's death. " Where the connection is not dissolved, the accounts not settled, everything remaining pressing upon the mind of the party under the care of the guardian," observes Lord Eldon, " it is almost impossible that the transaction should stand." ^ JSTor are the cir- cumstances under which the gift was made considered of much account; for the guardian's superior age and knowledge of the world, and the fact that he holds the property in his hands, place him at a decided advantage, whether he chooses to adopt a threat- ening tone or to impose upon the ward's mind by excessive kind- ness. These general principles apply, though not always in the same degree, to all others sustaining fiduciary relations ; including receivers and agents who manage the property of a cestui que trust. And unfair advantages of every sort, which the guardian aims to secure on a final adjustment of his accounts, — whether it be in the shape of compensation or the waiver of indebtedness incurred by his misconduct, — follow one invariable rule : that equity will relieve the ward against the consequences of his one-sided trans- action.^ In this country the rule is somewhat different ; for certain cir- cumstances, such as public recognition that compensation of some sort is justly due a trustee for his services, may fairly contribute to relax the rule in the guardian's favor. Settlements and bar- gains between the guardian and ward out of court are, however, frequently set aside for corrupt influence. So are gifts and con- 38 S. Ct. 426; Patterson v. Griffith, v. Adams, 153 P. 65 (utmost good 23 Ky. Law Eep. 334, 62 S. W. 884; faith reqvured). Smith's Ex'r v. May, 24 Ky. Law 2. Hatch v. Hatch, 9 Ves. 296. Bep. 873, 70S. W. 199; Fidelity Trust 3. Hylton v. Hylton, 2 Ves. 547; Co. V. Butler, 28 Ky. Law Eep. 1268, Wood v. Downea, 18 Ves. 120; Mul- 91 S. W. 676; Williams v. Davison's hallen v. Marum, 3 Dr. & W. 317; Estate, 133 Mich. 344, 94 N. W. 1048, Aylward v. Kearney, 2 BaU & B. 463; 10 Det. Leg. N. 220; Brandau v. Hunter v. Atkins, 3 M. & K. 135; Greer, 95 Miss. 100, 48 So. 519; De- Maephers. Inf. 260-264; Eevett v. cree (Sur. 1905) 96 N. T. S. 222 Harvey, 1 Sim. & Stu. 502; Duke of modified, In re Tyndall, 102 N. T. S. Hamilton v. Lord Mohun, 1 P. Wms. 211, 117 App. Div. 294 (Ex parte 118. But see Cray v. Mansfield, 1 Ves. order of surrogate approving contract Sen. 379, where gift to an agent was is not binding on ward) ; Pevehouse supported. 1133 EIGHTS AND LIABILITIES. § 990 veyances in consideration of the guardian's services; more espe- cially when undue influence is shown from special circumstances.* A guardian cannot recall his own gift to his ward ; though such a gift might lead the court to regard the guardian's account for expenditure with favor towards him.^ In Pennsylvania it is said that settlements will not stand unless full deliberation and good faith are manifest; but that a settle- ment made in good faith, especially if wise and prudent, cannot be impeached, after the ward's death, by his representatives.' This is doubtless the rule elsewhere. And the mere fact that a settle- ment has been made between guardian and ward, with allowances in the guardian's favor, is not conclusive of fraud, though every intendment is still to be construed on the ward's behalf.' A private settlement made with the ward on termination of guar- dianship will stand if fairly made,' but the burden rests on the guardian to show that he made full disclosure at the time of settle- ment and exercised the requisite degree of care in caring for the estate,® and if the settlement was unfair in any way it will not be sustained,^" but a receipt in full signed by the ward before 4. Hall V. Cone, 5 Day, 543 ; Waller V. Armistead, 2 Leigh, 11; Sullivan v. Blackwell, 28 Miss. 737; Clowes v. Van Antwerp, 4 Barb. 416; Briers v. Hackney, 6 Ga. 419; Fridge v. State, 3 Gill & Johns. 103; Eichardson v. Linney, 7 B. Monr. 571. 5. Bond V. Lockwood, 33 111. 212; Pratt V. McJunkin, 4 Eieh. 5. 6. Hawkins's Appeal, 32 Pa. St. 263. 7. Kirby v. Taylor, 6 Johns. Ch. 242; MeClellan v. Kennedy, 8 Md. 230; Spalding v. Brent, 3 Md. Ch. 411; Meek v. Perry, 6 Miss. 190; Myer v. Eives, 11 Ala. 76. 8. Norris v. Norris, 83 N. Y. S. 77, 85 App. Div. 113; Brown v. Adkinson, 22 Ky. Law Eep. 64ff, 58 S. W. 524; Holeher's Heirs v. Gehrig, 127 la. 369, 101 N. W. 759, 94 N. W. 486 (delay of four years before objecting to settlement) ; Burch v. Swift, 118 Ga. 931, 45 8. E. 698; Hooper v. Hooper, 26 Mich. 435; Epes v. Wil- liams' Adm'r (Va. 1897), 27 S. E. 427 (after eleven years) ; Kelly v. MoQuinn, 42 W. Va. 774, 26 S. E. 517 ; Lanman v. Lanman, 206 Mass. 488, 92 N. E. 885; Greenup v. United States Fidelity & Guaranty Co., 159 Ky. 647, 167 S. W. 910; Mouser v. Nunn, 142 Ky. 656, 134 S. W. 1148.. 9. Harrison v. Harrison, 21 N. M. 372, 155 P. 356 ; Hall v. Turner 's Es- tate, 78 Vt. 63, 61 A. 763; Line v. Lawder, 122 Ind. 548, 23 N. E. 758; (1906) Eouse v. Whitney, 102 N. Y. S. 899, 53 Misc. 56 (judg. rev., Same V. Payne (1907), 105 N". Y. S. 549). 10. Wilson V. Fidelity Trust Co., 30 Ky. Law Eep. 263, ?7 S. W. 753 (when ward in jail) ; in. re Lindsay 's Guardianship, 132 la. 119, 109 N. W. 473; Hall v. Turner's Estate, 78 Vt. 62, 61 A. 763; O'Connor v. O'Connor (E. L, 1897), 37 A. 634 (although re- lease in full is filed in court) ; Powell V. Powell, 52 Mich. 432, 18 N. W. 203; Succession of Lanphier, 104 La. 384, 29 So. 122; Succession of Vennard, 50 La. Ann. 808, 24 So. 283; Line v. Lawder, 122 Ind. 548, 23 N. E. 758 (when property not turned over to § 990 GUAKDIAN AND WABD. 1134: the termination of tJbe guardiansliip vrill not be binding/* When the guardian makes a fair settlement with the ward just before he comes of age the ward cannot later attack the account.^^ Circumstances, such as great inadequacy of price in a guardian's purchase of his ward's property shortly after the latter reaches majority, would doubtless suffice, if not rebutted by ample proof of fairness, for setting aside the transaction as fraudulent/* In general, the burden is on the guardian who relies upon an outside informal settlement to show a full disclosure and that the ward understood himself to be making a full and final settlement/* The fact that settlements out of court are not generally regarded in this country as conclusive, inasmuch as the probate guardian must still file his accounts and submit his transactions to the court, is a great safeguard against fraud. A fixed rule is established for the final adjustment of all matters in controversy between guardian and ward/° The chancery practice is to allow the ward a reason- able time, after attaining majority, usually one year, to reopen all accounts between himself and his guardian/" Hence a receipt in full, or a formal release, has been set aside as inconclusive/' And where the ward has made a partial inspection only, without exam- ining the vouchers, or acted without advice, or upon imperfect knowledge of the facts, so much the greater is his equity to relief/' But in probate guardianship, settlements out of court usually give way to settlements in court/' A settlement made out of court, with no filing of accounts, and shortly after the ward reaches full ward) ; Ellis v. Soper, 111 la. 631, 16. Matter of Van Home, 7 Paige, 82 N. W. 1041 (on mistaken assur- 46. ance of guardian that nothing is 17. But a valid release absolving due) f Baum v. Hartmann, 226 111. from all liability to account, and in 160, 80 N. E. 711 (reversing, 122 111. fact 'acquitting the guardian of lia- App. 444). bility for unauthorized acts, is in 11. GrifBn v. Collins, 122 Ga. 102, some cases recognized; the late ward 49 8. E. 827. having thus acted when free from 12. Alexander v. Hillebrand, 140 undue influence and as one clearly Mich. 490, 103 N. W. 849, 12 Det. Leg. mi juris. Satterfield v. John, 53 Ala. N. 238, 112 Am. St. E. 417. 127; Cheever v. Congdon, 34 Mich. 13. Eberts v. Eberts, 55 Pa. St. 296. 110 ; Snell V. Elam, 2 Heisk. 82. 18. Eevett v. Harvey, 1 Sim. & Stu. 14. Gregory v. Orr, 61 Miss. 307. 502 ; Wych v. Packington, 3 Bro. P. 15. In some States the probate C. 46; Eapalje v. Norsworthy, 1 courts and chancery courts have con- Sandf. Ch. 399; Johnson v. Johnson, current jurisdiction, and the ward 2 Hill Ch. 277; "Womack v. Austin, 1 may at his election proceed in either S. C. (N. S.) 421. forum to compel a settlement. Hailey 19. Although the guardian has set- V. Bond, 64 Ala. 399. tied with his ward on the latter 'a ar- 1135 BIGHTS AND LIABILITIES. § 990 age, is regarded with suspicion, and the guardian should satisfy the court that it was a fair one.'"' A settlement out of court, so- called, without turning over the property, is no settlement." But if the guardian seeks the court of his own choice, and the ward makes no ohjection to the guardian's final account as presented, or records his approval, and it is thereupon judicially approved and recorded, and appeal is not taken, no necessity for application of the chancery rule, of reopening the account, seems to exist, except upon very strong proof of fraud or error.^^ If the ward be dead. rival at full age, he may be called afterward to file and settle his ac- count. Marr'e Appeal, 78 Pa. St. 66. The guardian must deliver to the proper party entitled. A guardian's deposit of funds with a county clerk, wh» afterwards defaults, held (such ofScer not being ofScially accountable for such funds) to render the guar- dian and his bondsman accountable and not the defaulting clerk's bonds- man. Scott V. State, 46 Ind. 203; State V. Fleming, 46 Ind. 206. And this even though the court directed the guardian upon resigning to de- posit thus. Tb.; sed qu. Verbal di- rections of a judge of probate will not protect a guardian. Folger v. Heidel, 60 Mo. 284. A guardian hav- ing mortgaged as additional security for indebtedness to his ward, a suit to foreclose is no bar to proceedings for accounting against him and his sure- ties. Lanier v. GrifiSn, 11 8. C. 565. As to ex parte settlement in court, see Qravett v. Malone, 54 Ala. 19. A guardian's so-called account is incon- clusive as such, unless submitted to and approved by the court. Beedle v. State, 63 Ind. 26. Judgment for money found to be due by a guardian to his ward on settlement with the ordinary must be collected by process of execution; attachment for con- tempt based on the failure of the guar- dian to pay and return of nulla bona does not lie. Burrow v. Gilbert, 58 Ga. 70. And see as to indictment, State V. Henry, 1 Lea, 720. Nor has the ward a lien, equitable or other- wise, upon his guardian's general es- tate to secure an honest management. Chanslor v. Chanslor, 11 Bush, 663; Vason V. Bell, 53 Ga. 416. As to accepting security from the guardian in lieu of the security of his bond, see Querin v. Carlin, 30 La. Ann. 1131. Final settlement with infant ward duly represented by a guardian ad litem is as binding, as a rule, as a sim- ilar one made with an adult. Stabler V. Cook, 57 Ala. 22. But no final set- tlement of a guardian 's account, so as to operate against the ward's rights, can be made by the court while the relation of guardian continues. Lewis V. Allred, 57 Ala. 628. In Brown v. Chadwick, 79 Mo. 587, a guardian paid over a certain amount to his late ward, but on mutual settlement in the probate court, a balance was found due the guardian. For receipts given by the ward after becoming of age, acquiesced in for more than four years and held prima facie binding, see Steadham et al. v. Sims, 68 Ga. 741 ; Dunsford v. Brown, 1? S. C. 560. 20. Eoth's Estate, 150 Pa. St. 261. 21. Line v. Lawder, 122 Ind. 548. 22. Kittredge v. Betton, 14 N. H. 401; Musser v. Oliver, 21 Pa. St. 362. Pierce v. Irish, 31 Me. 254; Boynton V. Dyer, 8 Pick. 1 ; Hickman 's Appeal, 7 Barr, 464; Southall v. Clark, 3 Stew. & Port. 338; McDow v. Brown, 2 S. C. (N. S.) 95; Bybee v. Tharp, 4 B. Monr. 313; Stoudenmire v. De Bardelaben, 72 Ala. 300. Tet a bill in chancery for correction, etc., may be maintained, notwithstanding the § 990 GUAitDIAN AND WAED. 1136 the guardian's settlement must be with the ward's executor or. administrator; but even thus a probate guardian's settlement is usually subject to the court's revision upon his accounts.^' In ward's certificate approving the pro- bate account. Monnin v. Beronjon, 51 Ala. 196; Bruce v. Doolittle, 81 HI. 103; Lindsay v. Lindsay, 28 Ohio St. 157. These are matters of statute regulation. High v. Snedicor, 57 Ala. 403. After long lapse of time follow- ing a probate settlement, every in- tendment is in its favor. Morgan- stem V. Shuster, 66 Md. 250. Among decisions which apply to transactions between guardian and ward the fol- lowing may be noticed: Where a guardian advances money on his ward's account, he may have an as- signment of the security. Kelchner v. Forney, 29 Pa. St. 47. In extending time for payment of a security the guardian may sometimes arrange fairly with his ward for special com- pensation. Burnham v. Balling, 3 C. E. Green, 132. The guardian who does not insist on surrendering good securities, properly taken, as the es- tate of his ward, but pays out of his own funds instead, in part, may be- come to a corresponding extent joint owner of the securities. Higgins v. McClure, 7 Bush, 379. , But the guardian's own note or bond for the balance of money ad- judged due on a final settlement is no payment to the ward, nor does it discharge the guardian's sureties. It is a mere postponement of final pay- ment, and affords evidence of an ad- mitted liability on his part. Ward- law V. Gray, 2 Hill Ch. 644; Hamlin v. Atkinson, 6 Band. 574. See also Douglas V. State, 44 Ind. 67; Cole- man V. Davies, 45 Ga. 489. The guar- dian cannot buy up an equitable en- cumbrance, and enforce it against the ward who is ready to refund. Taylor V. Taylor, 6 B. Monr. 559. The ward may release to one of joint guardians, and thus hold the sureties, Kirby v. Taylor, 6 Johns. Ch. 242 ; though this principle may be affected by general rules as to probate bonds. A receipt in full discharges only for the amount actually received by the wards, may be contradicted by parol, and bands only such wards as were authorized to give it ; and its validity and effect, though under seal, may be considered in court. Witman's Appeal, 28 Pa. St. 376; Beedle v. State, 62 Ind. 26 ; Barnes v. Compton, 8 Gill, 391 ; Felton v. Long, 8 Ired. Eq. 224; Magruder v. Good- wyn, 2 P. & H. 561 ; Stark v. Gamble, 43 N. H. 465; Wade v. Lobdell, 4 Gush. 510. Cf. n. 7, supra, p. 625; 4 Bedf. Surr. 310. It may appear that doubtful notes, like the guar- dian's own note, were accepted not in settlement, but for postponement of payment. Line et al. v. Lawder et al., 122 Ind. 548. The settlement of an insolvent guardian vrith his ward is sometimes protected by a court of equity as against the guardian's as- signee in insolvency. Moore v. Hazel- ton, 9 Allen, 102. Statutes are found which permit the ward at full age to waive his legal right to an account and join his guardian in asking the court for a discharge. Marr's Ap- peal, 78 Pa. St. 66. A guardian's probate settlement will not be pre- sumed to include damages sustained by the infant's estate through fraud or misconduct of the guardian. Ordi- nary V. Dean, 44 N. J. L. 64. 23. Kenny v. Udall, 5 Johns. Ch. 464, 473 ; s. c, 3 Cow. 591 ; Van Epps V. Van Deusen, 4 Paige, 54; "\^n Deusen v. Van Deusen, 6 Paige, 366. See also Eedfield's n. te Story, Eq. Juris., § 1361 ; Chambers v. Perry, 17 Ala. 726. The guardian of a ward who has imprudently married without his assent has been permitted, in this country, to briag a bill in equity for procuring the settlement of the ward 'a 1137 EIGHTS AND LIABILITIES. 990 short, the proper place to seek for an accounting, according to American practice, is the probate court; and the theory is that every guardian shall settle with the judge, or with a successor, or with tha ward at full age, or with the ward's legal representatives, as the case may be, and upon final settlement pay over and deliver all the ward's property and balances which may thus be found due ; otherwise action may be had upon his bond as for breach of con- dition thereof."* Accord and satisfaction with the adult husband of a married minor ward, which upon the theory of the old common law might have been admissible, is not to be favored in these days when a wife's separate property is so zealously protected ; ""^ but joint orders and joint receipts by the married female ward and her husband, if she be still an infant, are favorably regarded.''* Lapse of time, following an informal settlement made with a ward who had reached majority, will bar a suit for an account in chan- cery, and raise a presumption that all transactions between them have been properly adjusted."^ And even in our probate guardian- ship the late ward's release and receipt in full may under favorable circumstances be shovsTi either in defence to a citation to settle accounts in court or as a voucher upon such settlement.''' moderate fortune upon her, against her husband's wishes. Murphy v. Green, 58 Tenn. 403. Trusts for chil- dren are sometimes made with a proviso as to the child's marrying with the approbation of the trus- tee or testamentary guardian. See Tweedale v. Tweedale, 7 Ch. D. 633. As to a settlement upon a female infant, a ward of chancery, who mar- ried without the sanction of the court or the knowledge of the guardian, and was afterwards divorced, see Buck- matser, 33 Ch. D. 482; § 399. And see Sampson and Wall, 35 Ch. D. 482. No jurisdiction lies to compel an infant ward of court to make set- tlement of his own property because of his marriage without leave. Leigh V. Leigh, 40 Ch. D. 290. 24. But as to the guardian of a per- son formerly insane, some States hold that he may settle with his ward af- ter the ward has recovered his reason, and need not submit his account to 72 the probate court. Hooper v. Hooper, 26 Mich. 435. An insane person im- der guardianship cannot sue to im- peach sales of his property made by his guardian. Robeson v. Martin, 93 Ind. 420. 25. Married wards stand essentially upon the same footing as others, as to having accounts settled in probate court. Wing v. Rowe, 69 Me. 282; Monnin v. Beroujon, 51 Ala. 19'6. 26. Dunsford v. Brown, 19 S. C. 560; Steadman et al. v. Sims, 68 Ga. 741; Hodges v. Council, 86 N. C. 181. 27. Bickerstaff v. Marlin, 60 Miss. 509. An infant wife cannot pursue the guardian's bond, unless her hus- band is of full age. Berkam v. The State ex ret. Miller et al., 88 Ind. 200 ; Cox V. Johnson et al., 80 Ala. 22. 28. Alexander's Estate, Lightner's Appeal, 156 Pa. St. 368; Ela v. Ela, 84 Me. 433. Especially when given by the ward two years or more after reaching majority. § 991 GUAEDIAN AND WARD. 1188 Though a settlement with a minor ward of the age of diecretion is not binding, still it may be given in evidence.''' Ratification of a private settlement between guardian and ward can be shown only by clear evidence.*" § 991. Transactions After Guardianship is Ended. Transactions after the period of guardianship, between parties lately holding the relation of guardian and ward, especially if the ward still remains under the influence of a former guardian, may be set aside upon the same principle of constructive fraud. It is true that bargains between them are good whenever the influence is fully removed; even to gifts and conveyances in consideration of past services, the accounts having been finally closed, the prop- erty duly transferred, and the late parties to the fiduciary relation standing toward one another as man and man. Under these cir- cumstances, the late guardian may purchase property of his late ward,'^ and a contract entered into between a guardian and his former ward after termination of the guardianship may be valid,** but dealings between them soon after the ward comes of age will be scrutinized by the court with suspicion.** And where the influ- ence still continues, as if the ward be a female, or a person of weak understanding, and the guardian continues to control the property or to furnish a home, the court is strongly disposed to set aside the bargain altogether.** Thus, where a guardian procures the late ward's indorsement of his own notes without consideration, the parties who take such notes with knowledge of the fiduciary rela- tionship have been enjoined from enforcing them against the indorser.*^ And if the guardian purchase rights of the late ward in his father's property for a grossly inadequate consideration, it will be set aside.*" The circumstance that the guardian had better 29. Alexander v. Hillebrand, 140 Cannon, 133 N. C. 10, 45 S. E. 351; Mich. 490, 103 N. W. 849, 12 Det. Daniel v. Tolon (OMa.), 157 P. 756; Leg. N. 238, 112 Am. St. E. 417. Baylor v. Fulkerson's Ex'rs, 96 Va. 30. National Surety Co. v. State, 265, 31 S. E. 63; In re Anderson, 97 181 Ind. 54, 103 N. E. 105. Wash. 688, 167 P. 71. 31. Oldin V. Sambom, 2 Atk. 15. 34. See Maephers. Inf. 260; Hu- 32. Williams v. Canary, 161 C. C. guenin v. Baseley, 14 Ves. 273; Dent A. 352, 249 F. 344; Ullmer v. Fitz- v. Bennett, 4 M. & C. 269; Hellish gerald, 102 Ga. 815, 32 S. E. 869. v. Mellish, 1 Sim. & Stu. 138; Daw- 33. Willis V. Eice, 157 Ala. 252, 58 son v. Massey, 1 Ball & B. 219; Har- So. 397; Taylor v. Calvert, 138 Ind. ris v. Carstarphen, 69 N. C. 416; 67, 37 N. E. 531; Garvin's Adm'r v. Garvin v. Williams, 50 Mo. 206. Williams, 50 Mo. 206; Shiveriek v. 35. Gale v. Wells, 12 Barb. 84. Bonsall, 173 N. T. S. 90; Hart v. 3G. Wright v. Arnold, 14 B, Monr. 1139 EIGHTS AJSm LIABrLITIES. § 992 opportunities of acquaintance with the actual condition and value of the property than the ward himself is properly to be considered on the latter's behalf. Purchases of the guardian's property by the late ward are to be closely scrutinized in like manner.*^ In all such cases and wherever the late guardian has extended the influ- ence of his former relation to procuring some undue advantage, equity may interfere and enjoin or charge him as trustee or com- pel him to make restitution; not usually, however, in the sense that he is still a guardian.*' This principle applies to quasi guardians, even to parents. For example, a girl, who had been living for thirteen years with her mother and stepfather, joined the latter within twelve months after she became of age, at his request and under his influence, in a promissory note for which she received no consideration. The payee some years later obtained judgment at common law, and was about to take out execution, when the court of chancery inter- fered on motion, restrained the payee from enforcing his execu- tion, and ordered the money paid into court.*' And the composi- tion of a debt on fair terms, made between an insolvent guardian and his ward about eight years after the latter became of age, will not readily be set aside for the purpose of enabling the ward at so late a day to reach the sureties on the guardian's bond.*" Where the late ward sets aside the transaction for undue influence he ought to refund the money, if any, which he received by way of consideration.*^ § 992. Marriage of Ward Against Consent of Chancery or Guardian. It is the rule of the English courts of chancery that no one can marry a ward of the court without its express sanction. And 638; Williams v. Powell, 1 Ired. Eq. full control of the fund after the 460; Wickiser V. Cook, 85 HI. 68. ward's majority, a probate court 37. Sherry v. Sansberry, 3 Ind. 320. may treat it as in effect a eontinu- Bnt aa to carrying out, on arriving at ance of the guardianship, and require age, a reasonable family arrange- all such transactions to go into the ment, see Cowan's Appeal, 74 Pa. St. account. Pyatt v. Pyatt, 46 N. J. 329; Be "Wood, 71 Mo. 623. Such Eq. 285. transactions may be set aside against 39. Espey v. Luke, 15 E. L. & Eq. one recent fiduciary and upheld against 579. And see Maitland v. Backhouse, another, as the equity of the case 16 Sim. 58. may warrant. Berkmeyer v. Keller- 40. Motley v. Motley, 45 Ala. 555. man, 33 Ohio St. 239. 41- Wickiser v. Cook, 85 lU. 68. 38. People v. Seelye, 146 111. 189. See a delay favorably regarded in But tshould the guardian remain in Voltz v. Voltz, 75 Ala. 555. § 992 GUABDIAN AND WARD, 1140 wherever a guardian is appointed he must give a recognizance that the infant shall not marry without its leave.*^ If a man marry a female ward without the approbation of the court, he, and all others concerned, will be treated as guilty of a contempt of court, and punished accordingly. So where there is reason to suspect an improper marriage of its wards, the court will interfere, by injunc- tion, to prevent the marriage, to forbid all intercourse between the lovers, and even to take the ward from the custody of the guardian or any other person who is supposed guilty of connivance with the match. When an offer of marriage is made, the court refers it to a master to ascertain and report whether the match is suitable, and also what settlement should be made upon the ward. Where a marriage has been celebrated without leave, the court will interfere to protect the female ward against the consequences of her indis- cretion, and compel the*husband to make a suitable settlement upon her. This whole subject is peculiar to the laws of England, and has no application whatever to courts of chancery in this country ; unless it be that orders might issu-e in some cases of improvident marriage to compel the settlement of a suitable portion upon the female ward. Yet authority is wanting for even the exercise of chancery jurisdiction to this full extent: so repugnant does it ap- pear to the whole tenor of our legislation. But where property of a female ward is under the control of a court of equity, and the husband needs its assistance, a suitable provision might be compelled on her behalf ; for this would be in accordance with the general law of husband and wife.*' 42. Story, Eq. Juris., §§ 1358-1361; Btackpole v. Beaumont, 3 Vee. 98; Maephera. Inf. 191-209; Eyre T. Stevens v. Savage, 1 Ves. Jr. 154. Countess of Shaftesbury, 2 P. Wms. 43. Ordway v. Phelps, 45 la. 279. Ill; Smith v. Smith, 3 Atk. 305; PART V. INFANCY. OHAPTEE. I. THE GENEEAL DISABrLITIES OF INFANTS. Sbction 993. Age of Majority. 994. Enlarging Capacity During Non-Age ; Legislative Belief from Non-Age. 9^5. Conflict of Laws as to True Date of Majority. 996. Infant's Eight of Holding Office and Performing Official Tunctions. 997. Infant's Responsibility for Crime. 998. Infant's Criminal Complaint; Discretion in Case of Peril, &c. 999. Power to Make a Will. 1000. Testimony of Infants. 1001. Marriage Settlements of Infants. 1002. Infant's Exercise of a Power. 1003. Infant's Commercial Paper. 1004. Trusts. 1005. Adverse Possession. § 993. Age of Majority. All persons are infants, in legal contemplation, until they have arrived at majority. The period of majority differs in different States and countries ; but this general principle remains the same. By the civil law, full majority was not attained until the person had completed his twenty-fourth year; he was then »aid to be perfectce cetatis — cetatis legitimw.** This period was like- wise adopted in France (though it was afterwards changed), and it prevails still in Spain, Holland, and some parts of Germany.*" By the French civil code, the age of full capacity is twenty-one years, except that twenty-five years is the majority for contracting marriage without paternal consent, by the male, and twenty-one by the female.** The law of Scotland adopts the age of twenty- one.*^ Among the Greeks and early Komans women were never 44. 1 Burge, Col. & For. Laws, 113 47. Ersk. Inst., b. 1, tit. vii.; 1 Bl. 45. 76., 114. Com. 464. 46. Code Civil, §§ 145, 488; 2 Kent, Com. 233. llll § 993 rNPANCT. 1142 of age, bnt subject to perpetual guardianship, except as wives; this gradually changed, and the civil law, as it stood in the time of Justinian, permitted females as well as males to attain their majority at twenty-five.*^ The common law of England, from the remotest times, lias fixed twenty-one as the period of absolute majority for both sexee; or, to be more exact, an infant attains full age on the beginning of the day next preceding the twenty-first anniversary of his birth.** The same rule is applied in most parts of the United States, though, in some of the States, females have an enlarged capacity to act at eighteen."" Under the statutes of Vermont, Ohio, and Illinois, and various western States, females are deemed of age at eighteen." The Code of Louisiana follows common-law, not civil-law, prin- ciples, and adopts twenty-one as the limitation for both sexes.'^ Thus arbitrary is the law which fixes the period of majority; nature assigning no precise and uniform period at which the dis- ability of infancy shall cease, yet clearly indicating that there must be some such period. A man bom the first day of February, 1600, after eleven o'clock at night, was adjudged in England to be of full age after one o'clock on the morning of the last day of January, 1621."* This is because the common law makes no allowance for fractions of a day. But the civil law, in order to secure to the person the full protec- tion afforded on account of his minority, did not hold the com- mencement of the day to be its completion, if injurious to his interests."* 48. Inst. X, 23, 1; 1 Bl. Com. 464. ried woman attains full age at elgh- 49. 2 Kent, Com. 233; 1 Bl. Com. teen. Bennett v. Bennett, 169 Ala. 463; 1 Salk. 44; Ld. Eaym. 480, 618, 53 So. 986; Sparhawk v. Bnel, 1096; 3 Wils. 274; Hamlin v. Steven- 9 Vt. 41; Stephenson v. WestfeJ], 18 son, 4 Dana, 597; State v. Clarke, 3 lU. 209. Harring. 557; WeUs v. Wells, 6 Ind. 52. Inst. 1, 23, 1; 1 Bl. Com. 464; 447. Texas, Means v. Bobinson, 7 Tei. 50. United States v. Wright, 116 502. See Ward t. Laverty, 19 Neb. C. C. A. 659, 197 F. 297; Banco De 429. Sonera v. Bankers' etc., Co., 124 la. 53. Pitzhue v. Bennington, 6 Mod. 576, 100 N. W. 532, 104 Am. St. E. 259; 1 Salk. 44, and citations in last 367 ; Beekman T. Beekman, 53 Fla. section. And see 1 Jarm. Wills, Eng. 858, 43 So. 923; International Text- ed. 1861, 39; Met. Contr. 38. Judge Book Co. T. Connelly, 206 N. T. 188, Redfield dissents from this rule. See 99 N. E. 722; 2 Kent, Com. 233. See 1 Redf. WiUs, 18-20. Crapster v. Griffith, 2 Bland, Ch. 5. 54. J. Voet, lib. 4, tit. 4, n. 1. 51. In Alabama by statute a mar- 1143 DISABILITIES. § 994 § 994. Enlarging Capacity During Non-Age; Legislative Re- lief from Non-Age. The principle of an enlarging capacity in infants has been inci- dentally noticed. It is reasonable to suppose that tbey who are constantly growing become naturally competent for certain pur- poses long before they attain complete majority, and young men and women may well be allowed the exercise of more discretion than babes. Hence we find that infants of suitable age are allowed to contract a valid marriage; that males of the age of fourteen and upwards, and females at the age of twelve, could once dispose of personal estate by will, and at fourteen may still choose or nominate their own guardians; that children of discretion have a voice in determining the right of custody and control. But not until attaining majority could a person at the common law convey, lease, or make contracts in general which would bind him; and the foregoing must then be considered as among the exceptions to the rule that persons are legally incapable so long as they are minors. Majority must be fully attained before capacity to contract is acquired.^" Some courts hold that marriage does not affect the 55. Carpenter v. Carpenter (Ala.), 75 So. 473; Johnson v. Wright (Ariz.), 179 P. 958; Kansas City P. & G. E. Co. V. Moon, 66 Ark. 409, 50 S. W. 996 ; Appeal of Ennis, 84 Conn. 610, 80 A. 772 ; Gannon v. Manning, 42 App. D. C. 206; Wickham v. Tor- ley, 136 Ga. 594, 71 S. E. 881; In re Cummings' Estate, 120 la. 421, 94 N. W. 1117; Scantlin v. Allison, 12 Kan. 85; MeKibben v. Diltz, 138 Ky. 684, 128 8. W. 1082; Hudson's Guar- dian V. Hudson, 160 Ky. 432, 169 S. W. 891; Portier v. Labranche, 13 La. 355; White v. New Bedford, etc., Corp., 178 Mass. 20, 59 N. E. 642. An infant master of a vessel is not liable for provisions furnished to the ship. A. B. Pogarty, 2 Dane. Abr. (Mass.) 25; Parker v. Gillis, 66 So. 978; Gambrell v. Harper, 113 Miss. 715, 74 So. 623; O'Donohue v. Smith, 114 N. Y. S. 536, 130 App. Div. 214; Kelly V. Same, Id.; Abom v. Janis, 113 N. T. S. 309, 63 Mise. 95 (order affd., 106 N. T. S. 115) ; Kamil v. New Tork College of Dentistry, 168 N. Y. S. 537; In re MacNeil, 151 N. Y. 8. 162, 165 App. Div. 842 (trans, from the Third Department, 149 N. Y. 8. 1095, 164 App. Div. 917) ; Jefferson v. Gallagher, 150 P. 1071; Bruner v. Cobb, 37 Okla. 228, 131 P. 165, L. E. A. 1916D, 377. He may disavow his mortgage held in escrow. Citizens', etc., Ass'n v. Arvin, 207 Pa. 293, 56 A. 870; Cha- bot V. Paulhus, 32 E. I. 471, 79 A. 1103; Coleman v. Virginia Stave & Heading Co., 112 Va. 61, 70 8. E. 545; Be Farley, 213 N. Y. 15, 106 N. E. 756, L. B. A. 1916D, 816; Peo- ple V. Griesbaeh, 211 111. 35, 71 N. E. 874. He is not bound by admission made while an infant. Claxton v. Claxton, 56 Mich. 557, 33 N. W. 310. Co. Lit*. 78b, 89b, and Harg. note. As to the privilege of wills, see stat. 1 Vict., ch. 26, § 7; infra, § 397. 56. Hx 'parte MeFerren, 184 Ala. 223, 63 So. 159; Marx v. Clisby, 130 Ala. 502, 30 So. 517. While a minor may not bind his § 994: INFANCY. 1144 disability of infancy,"' but others bold that it does remove it."'' In some States tbe statute so provides."* In case of a female infant marriage may suspend tbe duty to disaffirm till she is dis- covert, tbougb sbe may disaffinn without regard to coverture if sbe cbooses.*" Emancipation does not usually remove tbe dis- ability.*'^ Some statutes provide for tbe removal of tbe disability of infancy before majority,"^ wbile others have somevirhat changed tbe period at which tbe infant may bind himself by a contract.** estate, yet a well educated person approaching full age may suggest facts and views of policy worthy of the consideration of the courts, which may well be given great weight. In re Hickey (Okla.), 182 P. 233; Ex parte McFerren (Ala.), 63 So. 159, 47 L. E. A. (N. S.) 543; Baker v. Lovett, 6 Mass. 78, 4 Am. Dec. 88. 57. Sims V. Gunter (Ala.), 78 So. 62; Shipley v. Smith, 162 Ind. 526, 70 N. E. 803 ; Hudson v. Hudson, 160 Ky. 432, 169 S. W. 891; Guillebert V. Grenier, 107 La. 614, 32 So. 238. 58. In Indiana it has been held that an infant wife may convey her lands if the husband joins in the deed. Kennedy v. Hudkins, 140 Ind. 570, 40 N. E. 52; Losey v. Bond, 94 Ind. 67; Cochran v. Cochran, 196 N. T. 86, 89 S. E. 470. Where it is uncertain whether an infant's contract benefits or preju- dices her, and she marries while yet an infant, she should disafSrm the contract within a reasonable time, if she desires to avoid it. Chambers v. Chattanooga, etc., Ey. Co., 130 Tenn. 459, 171 S. W. 84; Town of North- field V. Town of Brookfield, 50 Vt. 62 ; Ex parte Hollopeter, 52 "Wash. 41, 100 P. 159. 59. Hays v. Bowden, 159 Ala. 600, 49 So. 122; Fields v. Mitchell, 112 Me. 368, 92 A. 293. 60. Buchanan v. Hubbard, 96 Ind. 1 ; Appelgate v. Conner, 93 Ind. 185 ; Losey v. Bond, 94 Ind. 67; Scranton V. Stewart, 52 Ind. 68; Linville v. Greer, 165 Mo. 380, 65 S. W. 579; Gaskins v. Allen, 137 N. C. 426, 49 S. E. 919; Blake v. HoUandsworth (W. Va.), 76 S. E. 814, 43 L. E. A. (N. 8.) 714. 61. Wickham v. Torley, 136 Ga. 594, 71 S. E. 881, 36 L. E. A. (N. 8.) 57. 62. Ketchum v. Faircloth-Segregt Co., 155 Ala. 256, 46 So. 476; Ketchum v. Faircloth-Segrest Co., 155 Ala. 256, 46 So. 476; Ex paHe Single- ton (Ala.), 68 So. 253; Ex parte Price, 68 So. 866; Wilkinson v. Buster, 124 Ala. 574, 26 So. 940; Boykin v. Collins, 140 Ala. 407, 37 So. 248 ; Young v. Hiner, 72 Ark. 299, 79 S. W. 1062; Bickle v. Turner (Ark.), 202 S. W. 793; Dalton v. Bradley Lumber Co. (Ark.), 205 8. W. 695. The enactment of such a statute will not affect the status of an infant who has attained full age under the former, statute. Smith v. Smith (Kan.), 18 P. .231; State v. Lyons (Kan.), 180 P. 802; Gaston v. Eainach, 141 La. 162, 74 So. 890; Jackson v. Jackson, 105 Miss. 868, 63 So. 275; Lake v. Perry, 95 Miss. 550, 49 So. 569; Watson v. Peebles, 102 Miss. 725, 59 So. 881; Cunning- ham V. Eobison, 104 Tex. 227, 136 S. W. 441; Gulf, C. & S. F. Ey. Co. V. Lemons (Tex.), 206 S. W. 75; Durrill v. Eobison (Tex.), 138 8. W. 107. 63. In California by statute the deed of an infant under eighteen is void in the absence of a new contract or estoppel. Hakes Inv. Co. v. Lyons, 166 Cal. 557, 137 P. 911. In the same State a minor making a contract while 1145 BISABILITIES. § 995 Legislative or judicial emancipation has existed in Louisiana and some other parts of this country once under the dominion of continental Europe. In the case of an emancipated minor under fcuch statutes, bj which he is relieved from the time prescribed by law for attaining the age of majority, he is invested with all the capacities in relation to his property and obligations which he would have had he actually arrived at the age of twenty-one years. And he may be appointed administrator of an estate" or surety on a bond.®° But the right of legislative emancipation seems never to have been distinctly admitted at the common law in any such extensive sense. § 995. Conflict of Laws as to True Date of Majority. Supposing a conflict of laws should arise over the contract of an infant by reason of the period of majority being differently as- signed by the law of the domicile of his origin and that of his actual domicile, or of the situation of real property, or of the place where he has entered into a contract. The rules for such cases are these: First, that the actual domicile will be preferred to the over eighteen years old may disaffirm it before majority on certain condi- tions. Spencer v. Collins, 156 Cal. 2ff8, 104 P. 320. By statute in Iowa a minor cannot disaffirm a contract where the other party has been misled by the minor's misrepresentations into thinking that he is of full age. First Nat. Bank v. Casey, 158 la. 349, 138 N. W. 897. In North Dakota by statute a minor may contract at eighteen years of age as an adult, except that he may disaffirm, within one year after majority, contracts not for necessa- ries by refunding the consideration, or paying its equivalent with interest. Luce V. Jestrab, 12 N. D. 548, 97 N. W. 848; Casement v. Callaghan (N. D.), 159 N. W. 77; Hamm v. Pru- dential Ins. Co. of America, 122 N. T. 8. 35, 137 App. Div. 504 (statute permitting minor to make certain &i- surance contracts). Under the Oklahoma statute a minor may disaffirm a conveyance made when under eighteen years of age ■without returning or tendering the consideration. Eice v. Anderson, 39 Okla. 279, 134 P. 1120. Under the Pennsylvania statute authorizing minors over eighteen to make needful contracts to become members of beneficial associations, it was held that a minor was bound by a contract made with the beneficial association of a certain railroad mak- ing acceptance of its benefits a re- lease of liability against the railroad. Eiddell v. Pennsylvania E. Co. (Pa.) 106 A. 80. 64. Succession of Lyne, 13 La. Ann. 155; Gordon v. Gilfoil, %^ U. S. 168. See also State v. Bunce, 65 Mo. 349. A legislative power conferred upon the courts to emancipate is to be exercised in a summary manner and not according to the course of the common law. Hindman v. O'Connor, 54 Ark. 627; Stat« v. Barker, 25 Fla. 59'8. As to eman- cipation of a minor in our usual sense, see supra, § 807 et seq. 65. Cooper v. Bhodes, 30 La. Ann. 533. § 996 INFANCY. 1146 domicile of birth. Second, that the law of situation of real prop- erty must prevail over that of domicile. Third, that the law of the place where a contract is made must prevail over that of domicile.®^ Fourth, that in matters of practical remedy in the courts, the law of the forum is sometimes conclusive.*^ The right of action for the recovery of real estate belonging to an infant will be governed, not by the law in force when the right of action accrued, but by the law in force when the infant became of age.«' § 996. Infant's Right of Holding Office and Performing Official Functions. !N"ext, as to the infant's right of holding office. There are numerous old cases to be found in the books where an infant has been adjudged capable of holding offices that involve no pecuniary or public trust, and require only moderate skill and diligence; Mich as the office of park-keeper, forester, aherifF, and jailer; though on the ground apparently that such offices formerly were capable of grant, and the grantees had the power to act by deputy.'" But the modem doctrine seems to be clear that no office of pecuni- ary and public responsibility can be conferred upon an infant; not so much because of mental incapacity on his part, as for the very good reason that a person who is not legally responsible for the duties of his office cannot be, in point of law, a proper person to execute them. A public office which requires the personal re- ceipt and disbursement of money is not then to be filled by an infant."* I^or can an infant act as administrator, executor, or 66. Harding v. Sehapiro, 120 Md. tin, 597; 2 Kent, C3om. 833, n.; 541, 8T A. 951. Where an in- Hney's Appeal, 1 Grant (Pa.), 51; f ant's contract is voidable by the Wharton, Confl., § 112. An order of law of the State of his domicile and court of another State, made in con- was made by the infant, and is to formity to a statute of that State, be substantially performed in that and purporting to relieve an infant State, that law will govern the case, residing in that State from the dis- though the contract was completed ability of non-age, can have no opera- by acceptance in another State, where tion in Missouri. State v. Bnnee, 65 it might be binding. International Mo. 349. Text-Book Co. v. Connelly, 206 N. Y. 67. As in applying the bar of the 188, 99 K. E. 722, 42 L. E. A. (N. S.) statute of limitations. Burgett v. 1115. Male v. Eoberts, 3 Esp. 163; Williford, 56 Ark. 187. 1 Burge, Col. & For. Laws, 118 ef 68. Gilker v. Brown, 47 Mo. 105. seq.; Story, Confl. I/aws, §§ 75, 82, 69. Bac. Abr. Infancy and Age 332; Thompson v. Keteham, 8 Johns. (E.) ; 3 Mod. 222; Young v. Fowler, 189; Hierstand v. Kuns, 8 Blackf. Cro. Car. 555; MacpTiers. Inf. 448. 345 ; Saul v. His Creditors, 17 Mar- 70. Claridge T. Evelyn, 5 B. & Aid. 114Y DISABILITIES. truBtee, nor by his concurrence (in the absence of fraud on his part) sanction a breach of trust.''^ He cannot be a guardian, an attorney under a power (except to receive seisin), a bailiff, a factor, or a receiver.''^ Nor should he be admitted to the bar as an attorney at law.'^ The service of a notice of replevy by an infant is, in England, illegal and void ; and it would appear that he cannot be a sheriff's officer." But in New Hampshire it is held that an infant may be deputed to serve and return a particular writ ; on the ground that while offices where judgment, discretion, and experience are essen- tially necessary to the proper discharge of the duties they impose, should not be intrusted to infants, offices may be held which are merely ministerial, and require nothing more than skill and diligence.'^ But a distinction is properly taken between the case of officers of justice ordinarily liable for false return, misfeasance, and the like, and those who have no such liability; and for this reaaon, while, in Vermont, an infant may serve a particular writ, he cannot be specially authorized to serve mesne process by the magistrate.^' In ancient times minors appear to have frequently sat in the British Parliament. Thus it is related that a son of the Duke of Albemarle took part in debate when only of the age of fourteen; and history states that about the 10th James I. there were forty members not above twenty years of age, and some not above six- teen.*^ But by statute it is now provided that an infant cannot sit in the House of Lords, or vote at an election for a member of the lower house, or be elected.^' There are provisions in the Con- stitution of the United States and of the different States, adopted nndoubtedly because it was considered contrary to sound public policy to commit any offices requiring considerable skill and pru- 81. See Crosbie v. Hurley, 1 Alcock 74. Cuckson v. Winter, 2 M. & By. & Napier, 431. 306. 71. JUacphers. Inf. 449; Wilkinson 75. Moore v. Graves, 3 N. H. 408. V. Parry, 4 Eubs. 372. But though But see Tyler Tyler, 2 Root, 519. wrongly appointed, he will be liable And see Eailroad v. Fisher, 109 N. 0. to account for money received by 1. him after reaching majority. Carow 76. Barrett v. Seward, 22 Vt. 176; V. Mowatt, 2 Edw. Ch. 57. And see Harvey v. Hall, ib. 211; 53 Vt. 109. Knox V. Nobel, 77 Hun, 230. 77. See Macphers. Inf. 449, n.; 1 72. Macphers. Inf. 448, 449 ; Co. Pari. Deb. 420, notes. l.itt. 3b, 172. 78. 7 & 8 WiU. IH., eh. 25. 78. Coleman, ex parte, 54 Ark. 236. Bat ef. 85 Pla. 298. § 996 INFANCY. 1148 dence, not to say pecuniary and public responsibility, to the young and immature. By the Constitution of the United States, no per- son can be President who has not attained the age of thirty-five years ; nor a senator, who is under the age of thirty years ; nor a representative in Congress who is not twenty-five years of age. Corresponding provisions abound in the difFerent States as to the eligibility of local officers. So is the disqualification to vote uni- versally applied by our laws to minors, and restrictions upon the right of suffrage may extend even further.'" The true principle to be extracted from the authorities seems therefore to be that the court will inquire whether an infant, as such, is by law capable of discharging suitably, faithfully, and efficiently the duties of a particular ofiice, and so as to leave open all the usual remedies to others; and this is a proper rule of guid- ance, the statutes being silent, rather than ancient precedents laid down concerning particular offices in times when they were trans- missible in families and mere sinecures.'" There are, undoubtedly, certain offices which an infant may properly hold. And the legislature is competent to establish an earlier or later period at which persons shall be deemed of full age for certain purposes. Hence in Massachusetts, under a law fixing eighteen years as the age for military duty, and empowering an infant at that age to enlist of his own accord, and without the parent's asent, in the militia, it is held that he may be elected company clerk, or even, as it would appear, a commissioned officer of the company.'^ The late cases show a tendency to a more liberal rule, under which a minor has been held to be competent to act as a deputy sheriff,'^ a notary publie,^^ and clerk of a court.** 79. The officer who usually admin- 82. Irving v. Edrington, 41 La. isters the oath of office cannot refuse Ann. 671, 6 So. 177; Jamesville, etc., to do so on such grounds. People E. Co. v. Fisher, 109 N". C. 1, 13 8. E. T. Dean, 3 Wend. 438. 698, 13 L. E. A. (N. S.) 721 ; Gilson v. 80. For some of the old decisions Kuenert, 15 S. D. 291, 89 N. W. 472; as to what offices an infant might or Bell v. Pruit, 51 S. C. 344, 2ff S. E. 5; might not hold, see Bac. Abr. Infancy State v. Toland, 36 S. C. 515, 15 and Age (E.) ; also Moore v. Graves, S. E. 599. 3 N. H. 408, passim. 83. United States v. Bixby, 9 Fed. 81. Dewey, Petitioner, 11 Pick. 265. 78. See Hands v. Slaney, 8 T. E. 578. 84. Talbott's Devisees v. Hooser, Infant may be a notary. 25 Alb. L. 75 Ky. 408. J. 12. 1149 DISABILITIES. § 997 § 997. Infant's Responsibility for Crime. Infants who have arrived at sufficient maturity in years and understanding are capable of committing crimes; and it is said that they cannot plead in justification the restraint of a parent, as married women can that of the husband; although, as we pre- sume, duress or compulsion may be properly set up in defence, wherever a young child is indicted and tried for a crime. The period of life at which a capacity of crime exists is determined by law to a certain extent ; for a child under seven is conclusively incapable of crime, one between seven and fourteen only prima facie so, and one over fourteen prima facie capable like any other.*^ 85. United States ex rel. Schorn- bach V. Behrendsohn, 197 F. 953. The presumption is that an infant un- der 14 years had not the requisite guilty knowledge of the wrongfulness of an act to authorize a conviction of felony, unless there is proof of knowledge of good and evil. Eeynolds V. State, 154 Ala. 14, 45 So. 894; Garner v. State, 97 Ark. 63, 132 8. W. 1010; Gilchrist v. State, 100 Ark. 330, 140 S. W. 260; Harrison v. State, 73 Ark. 117, 78 S. W. 763; Land y. State (Fla.), 71 So. 279, L. E. A. 1916E, 760; Singleton v. State, 124 Ga. 136, 52 S. E. 156; Vinson v. State, 124 Ga. 19, 52 S. E. 79; Car- roll V. State (Ga.), 89 S. E. 176; Vinson v. State, 124 Ga. 19, 52 S. E. 79; Anthony v. State, 126 Ga. 632, 55 S. E. 479^; Singleton v. State, 124 Ga. 136, 52 S. E. 156; Stephens v. Stephens, 173 Ky. 580, 189 S. W. 1143; Commonwealth v. Smith, 14 Gray (Mass.), 33. The criminal intent, which is an es- sential element of every crime, cannot he entertained by an infant until he has developed suiEeient intelligence and moral perception to enable him to distinguish between right and wrong and to comprehend the con- sequences of his acts. Beason v. State, 96 Miss. 105, 50 So. 488; Miles V. State, 99 Miss. 165, 54 So. 946; State ex rel. Cave v. Tincher, 258 Mo. 1, 166 S. W. 1028 ; State v. Pisk, 15 N. D. 589, 108 N. W. 485. In North Dakota the statute pro- vides that children under seven years of age are legally incompetent to commit crime, and between the ages of seven and fourteen are presumed to be incompetent. State v. Fisk, 15 N. D. 589, 108 N. W. 485. The presumption is not satisfactor- ily rebutted by inferences which the judge may make from their appear- ance and from conversation with them and their parents, satisfying him that they have criminal capacity. A plea of guilty is insufficient to overcome the presumption, which can be done only by affirmative evidence. People V. Domenico, 93 N. Y. S. 390, 45 Mise. 309, 19 N. T. Cr. E. 8 ; State v. Nelson, 88 S. C. 125, 70 S. E. 445. A homicide by an infant seventeen years of age is not excused by his father's coercion. State v. Thrailkill, 73 S. C. 314, 53 S. E. 483; 1 Bish. Crim. Law, § 460; 1 Euss. Crimes, Grea. ed. 2; Marsh v. Loader, 14 C. B. (N. S.) 535. The text-writers have said that an infant can never plead constraint of the parent, but this may be doubted. See Humphrey V. Douglass, 10 Vt. 71 ; Commonwealth v. Mead, 10 Allen, 398; State v. Learnard, 41 Vt. 585. But see Wil- let V. Commonwealth, 13 Bush (Ky.), 330 (holding that an infant under twelve years of age may be shown to have criminal capacity). But see In re Sanders (Okla.), 168 P. lOT (holding that as an infant under four- § 997 INFANCY. 1150 An exception to this rule is usually stated in certain cases of physi- cal impotence; for it is argued that a boy under fourteen years of age is physically undeveloped, and therefore cannot be legilly guilty of rape or similar crimes.*' Nor is carnal consent an ad- mitted palliation to one who commits a crime upon a young person, even though the latter made no resistance.*^ Incapacity for com- mitting a crime might properly be considered in connection witi incapacity of criminal intent ; and yet the later rule of Ohio and 6ome other States seems the more correct one, which is to reject in such case any doctrine of conclusive presumption of incapacity, and allow evidence of criminal intent to be furnished ; ** though certain investigations on this point might be held contra honos mores. The general rule is that capacity for crimes in persons above the age of seven years is a question of fact ; the law assuming prima facie incapacity under fourteen, and capacity over fourteen ; but subjecting that assumption of guilty intention to the effect of proof concerning the real fact." Where a statute creates an offence, infants under the age of legal capacity are not presumed to have been included, yet where an act is denounced as a crime, even felony or treason, it extends as well to infants, if above fourteen years, as to others.'" And a child under fourteen may be within the fair scope of a particular statute misdemeanor.*^ An infant may be indicted for obtaining goods by false pre- teen 13 presumed to be doli incapax. Where a child is under fonrteen tho and, therefore, cannot be guilty of jury, in order to convict, should be murder). But see People v. Martin, satisfied that he knew the distinction 13 Cal. App. 96, 108 P. 1034. between right and wrong as to the 86. 1 Bish. Grim. Law, §§ 466, 672, particular offence. Willis v. 8tat«, and cases cited; State v. Handy, 4 89 Ga. 188; Bell v. The State, Earring. 566; Reg. v. Phillips, 8 Car. 91 Ga. 15. There should be more & P. 736. But see Wagoner v. State, than the infant's own statement 5 Lea, 352, which holds that this pre- to remove the presumption of guilty sumption as to a boy nearly fourteen intent where he is over fonrteen. years is not conclusive, but subject State v. Kluseman, 53 Minn, 541. to proof. See State v. Howard, 88 N. C. 650. 87. See Eq., 61 Conn. 50 90. 1 Hawk. 1; 4 Bl. Com. 23; 1 88. Williams v. State, 14 Ohio, 222; Bish. Crim. Law, § 462. People V. Randolph, 2 Parker, 174; 91. Statutes, for instance, which ar- Commonwealth v. Green, 2 Pick. 380; rest for begging on the streets, gath- Wagoner v. State, supra. ering garbage from the markets, etc. 89. State v. Leamard, 41 Vt. 585; There are various penal statutes Willet V. Commonwealth, 13 Bush, which provide for sending young ehil- 230; Martin v. State, 90 Ala. 602; dren who are found offenders, to the State V. Toney, 15 S. C. 4096 76 Mo. house of refuge or some similar ia- 355. See Dove v. State, 37 Ark. 261. stitution for youth. People v. N. Y. 1151 DISABILITIES. § 997 tences," or for stealing." He is liable to bastardy procees." And, following the general principle already announced, children less than fourteen have been convicted for arson and murder, the prima facie presumption of incapacity being overcome; "' and for perjury.""* But a child less than seven cannot be indicted for nuisance, though owner of the land.°° And it is reasonable to add that the evidence of malice or " mischievous discretion " which is to supply age ought to be strong and clear, beyond all doubt and contradiction.*'' At fourteen years of age infants are presumed to be capable of malice."* And the fact may be shown even though he be of a lesser age."* The government has the burden of showing the crim- inal capacity of a defendant between seven and fourteen years of age.* The question of such capacity is for the jury.* Catholic Protectory, 101 N. Y. 195; Hibbard v. Bridges, 76 Me. 324; 66 How. Pr. 178. 92. People v. Kendall, 25 Wend. 399. 93. Dove V. Btate, 37 Ark. 261. Infant responsible for larceny as bailee. Queen v. McDonald, 15 Q. B. D. 323. 94. Chandler v. Commonwealth, 4 Met. (Ky.) 66. 95. See 4 Bl. Com. 23, 24; 1 Bish. Crim. Law, § 464, and cases cited; State V. Barton, 71 Mo. 288; Martin ■7. State (1891, Ala.). 95a. Willet v. Commonwealth, 13 Bush, 230. 96. People v. Townsend, 3 Hill, 479. 97. See 4 El. Com. 24; Common- wealth v. Mead, 10 Allen, 398 ; Steph- enson V. State, 28 Ind. 272; State v. Tioe, 90 Mo. 112. As to recog- nizance to answer for criminal of- fence, see State v. Weatherwax, 12 Kan. 463. Where a minor is impris- oned under an illegal sentence, the proper remedy is by habeas corpus, and not annulment of the sentence. Cathing v. State, 63 Ga. 243. 98. Birmingham, etc., E. Co. v. Mattison, 166 Ala. 602, 52 S. i9; Young V. Sterling Leather Works (N. J.), 102 A. 395. 99. State v. Jackson, 3 PennewUl (Del.), 15, 50 A. 270. 1. The presumption of law that an infant over seven and under fourteen years of age does not possess suficient mental capacity to commit a felony is rebuttable only by clear evidence of a mischievous disposition, or of knowledge of good and evil. Key v. State, 58 So. 946, 4 Ala. App. 76; Garner v. State, 97 Ark. 63, 132 S. W. 1010; Kear v. State, 84 Ark. 146, 104 S. W. 1097; Harrison v. State, 72 Ark. 117, 78 S. W. 763; Ledrick V. United States, 42 App. D. C. 384 (an infant cannot be convicted of ft crime upon a plea of guilty, unless it is established that he is of crim- inal capacity and understands the nature and consequences of his plea of guilty) ; Singleton v. State, 124 Ga. 136, 52 8. E. 156 ; Ford v. State, 100 Ga. 63, 25 S. E. 845; Carroll v. State (Ga.), 89 S. E. 176; Stephens V. Stephens, 172 Ky. 780, 189 S. W. 1143; Willet v. Commonwealth, 13 Bush (Ky.), 230; Miles v. State, 99 Miss. 165, 54 S. 946; State v. Tice, 90 Mo. 112, 2 S. W. 269; State v. Fisk, 15 N. D. 589, 108 N. W. 485; People V. Squazza, 81 N. Y. S. 254, 40 Miae. 71; State v. Mariano, 37 E. L 168, 91 A. 21; State v. Nelson, 88 S. C. 125, 70 S. E. 445; State v. Davis, 104 Tenn. 501, 58 S. W. 122; State V. Vineyard, 81 W. Va. 98, 93 S. E. 1034. 2. Key v. State, 4 Ala. App. 78, § 999 INFANCY. 1152 § 998. Infant's Criminal Complaint; Discretion in Case of Peril, &c. An infant, it is held in Tennessee, may make a criminal com- plaint, and be what is knovm as the prosecutor.* There are various criminal offences against young children set forth in our codes.* Corresponding to the presumption of criminal capacity in an infant ia that of presumed capacity to be diligent for hia own personal safety against manifest peril ; though such presumptions yield to proof.* § 999. Power to Make a Will. The age at which persons may dispose of their property, real or personal, by last will and testament, is now determined by statute in England, and in most parts of the United States. In England the modem statute 1 Vict., c. 26, § 7, provides that no will made by any person under the age of twenty-one years shall be valid. This went into effect in 1838.' And the provisions of this statute have been substantially enacted either before or since in most of the American States; so that the policy of the present day may be said to exclude the testamentary capacity of all infants.' Wor is this unjust; for the law itself draws up as good a will for children as they are likely to make for themselves. But the ancient rule was otherwise: namely, to the effect that males at fourteen and females at twelve might make wills of their personal property ; thus conforming to the older rule of the civil and canon law.* And fourteen, as we have seen, was the age when a guardian by election of the infant might be appointed.' But though no objection was admissible to the probate of wills in the ecclesiastical courts, merely for want of age, yet if it could be shown that the testator was not of sufficient discretion, whether of the age of fourteen, or four-and'-twenty, that would overthrow the 58 So. 946; State V. Mariano, 37 R. I. Hiekey v. Taaffe, ff9 N. Y. 204; 168, 91 A. 21; State v. Nelson, 88 Mascolo v. Montesanto, 61 Conn. 50. 8. C. 125, 70 S. E. 445. 5. § 1034. 3. State v. Dillon, 1 Head, 389. 6. See also 20 & 21 Viet., ch. 77. 4. Such as infanticide, cruelty to 7. Schouler, Wills, §§ 39-43; 4 children (which certain societies seek Kent, Com. 506, 507. to suppress), and corruption of 8. 1 Wms. Ex'rs, 15; Schouler, morals). See State v. Hill, 58 N. H. Wilb, §§ 40, 41. But there are some 475; Eobinson v. The State, 67 Ga. irreconcilable opinions on the subject 29; State v. Woolaver, 77 Mo. 103; to be found in the old books. See Taylor v. The State, 107 Ind. 483; Co. Litt. 89b, Hargrave's note. 9. See § 816. 1153 DISABILITIES. § ^99 testament." This always operated to discourage such wills from being made. And yet the objection was not insuperable ; for there IS a clear instance on record where an infant sixteen years of age made a testament in favor of his guardian and schoolmaster, which was established by evidence of the child's capacity and free will." The English text writers, with reference to the old law, have laid it down that express approval of a former will after the infant had accomplished the years of fourteen or twelve would make it strong and effectual." But as concerns the later statutes, if not as a general principle for modem times, it appears pretty clear that where a will is required to be in writing, and executed before witnesses, in order to be valid, and is thus executed before the testator arrives at the required age, it cannot be rendered valid after the testator arrives at such age, except by republication with all the usual formalities.^* And even the old books admit that the mere circumstance of an infant having lived some time after the age when he became capable of making a will cannot alone give validity to one made during his incapacity.^* The maxims of the older law on this subject adhere somewhat to American jurisprudence; for we find that in a few of our States a distinction is still made between personal and real estate as to the right of an infant to dispose of his property by will.^'' 10. 2 Bl. Com. 497; 1 Wms. Ex'rs, personalty. Among the States where 15. the right to dispose of estate, both 11. Arnold v. Earle, 2 Cas. temp. real and personal, is now limited to Lee 529. persons of full age, are Massachn- 12. 1 Wms. Ex'rs, 16; Swinb., pt. setts, Vermont, New Hampshire, 2, § 2, pi. 7 ; Bac. Abr. Wills, B. Maine, Ohio, Indiana, New Jersey, 13. Schouler, Wills, Part IV., ch. 3. Kentucky, Virginia, Pennsylvania, 14. Herbert v. Torball, 1 Sid. 162; Delaware, and Michigan. For latest Swinb., pt. 2, § 2, pi. 5; 1 Wms. changes see Stimson, American, Stat- Ex'rs 16. Formerly, as we have ute Law. In some States a distinc- Been, a father, though a minor, might tion is made between males and fe- appoint a testamentary guardian of males as to testamentary capacity, and his own child; but this right also is the latter may make wills, as in Ver- taken from a minor father, under the mont and Maryland, at eighteen. In modem statute of wiUs. 1 Vict., ch. New York and lilUnois the principle 26 ■ see § 814. ^^ *" discriminate between real and 15. Thus in Ehode Island, Virginia, personal estate, and between males Arkansas and Missouri, the age for and females; and while as young as making wills of real estate is fixed at sixteen a female in the former State twenty-one, and for disposing of per- may make a valid wiU of personalty, sonalty in the same manner, at eigh- but a male only at eighteen. See teen; and in Connecticut at twenty- Schouler, Wills, § 43; 4 Kent, Com. one for real estate, and seventeen for 506, 507; Williams v. Heirs, Busbee, 73 § 1000 Ilf FANCY. 1154 An infant, even under fourteen years of age, may be a witness to a will, if of sufficient understanding.^* § 1000. Testimony of Infants. Infants may be admitted to testify in the courts, if of sufficient understanding. There is no precise age at which the law excludes them on the conclusion that they are mentally and morally incom- petent; but one's competency in any case will depend upon his actual intelligence, judgment, understanding, and ability to com- prehend the nature and effect of a solemn statement under oath as distinguished from falsehood. By the common-law rule, every person over the age of fourteen is presumed to have common dis- cretion and understanding until the contrary appears ; but under that age it is not so presumed ; and the court will therefore make inquiry as to the degree of understanding which the child offered as a witness may possess. But this preliminary examination, which is made by the judge at discretion, is to be directed to the point whether the witness comprehends the solemn obligation of an oath; and if the child appears to have sufficient natural intelli- gence to distinguish between good and evil, and to comprehend the nature and effect of an oath, he is an admissible witness.^' In Indiana a statute provides that all children over the age of ten shall be presumed to be competent. And in various States a child nearly ten years of age has been deemed competent to testify, whose answers when she was examined by the court disclosed that, though she was ignorant of the nature of the punishment for false swear- ing, yet she comprehended the obligations of an oath and believed that any deviation from the truth, while under oath, would be followed by appropriate punishment.^^ Less expression even than this has been required of children about this age, where the due comprehension appeared, notwithstanding nervous agitation natural to the surroundings.^* Of the capacity of such witnesses 271; Davis v. Baugh, 1 Sneed, 477; poaed to overrule the discretion of the Moore v. Moore, 23 Tex. 637; Posey judge at the trial below who makes V. Posey, 3 Strobh. 167 ; Corrie 's this examination, unless the discretion Case, 2 Bland. Ch. 488. was plainly abused. People v. Linzey, 16. Ee Spier, 9? Neb. 853, 157 N. 79 Hun, 23. W. 1014, L. E. A. 1916B, 692; Carl- 18. Blackwell v. State, 11 Ind. 196; ton V. Carlton, 40 N. H. 14 ; Draper v. Draper, 68 111. 17 ; Vincent 17. Greenl. Evid., § 367; 2 Euss. v. State, 3 Heisk. 120. Crimes, 590; Eex. v. Brazier, 1 East, 19. Davidaon v. State, 39 Tex. 189; P. C. 443; State v. Whittier, 21 Me. State v. Scanlan, 58 Mo. 204. 341. Nor is a court of appeal dis- 1155 DISABILITIES. § 1000 for comprehending the matter as to which they testify, of the strength of the memory, and in general as to the weight which may be attached to their testimony in any particular state of facts, a jury should make its estimate carefully.^" Children have been admitted to testify at the early age of seven, and even of five ; "^ but the dying declarations of a child only four years old were once ruled out,^^ for the reason that, however pre- cocious the child's mind, she could not have had that idea of a future state which is necessary to make such declaration admis- sible.^' Different systems of religious education render the judi- cial test in this respect far from precise ; for while there are cases where the court has put off a trial, in order to specially instruct an infant witness as to the nature and solemnity of an oath, this prac- tice is not of late years strongly countenanced ; the opinion gaining ground that the effect of the oath upon the conscience should arise from religious feelings of a permanent nature and gradual growth.^* But in cases where the intellect is sufficiently matured, and the education only has been neglected, it appears that a post- ponement of the trial might properly be asked.^° Where a young 20. Competence to testify is not in- consistent with civil immunity at such an age for perjury. Johnson v. State, 61 Ga. 35. See Peterson v. State, 47 Ga. 524. 21. n. Female child of eight held a, competent witness in prosecution for a criminal assault upon her. Wade V. State, 50 Ala. 164. 22. Eex V. Pike, 3 Car. & P. 598; Eex T. Brazier, 1 Lat. P. C. 443. 23. Eex V. Pike, 3 Car. & P. 598. And see Eex v. Brazier, 1 East P. C. 443; 1 Greenl. Evid., § 367; Commonwealth V. Hutchinson, 10 Mass. 225. 24. Eex V. White, 2 Leach C. C. 48, n.; 1 Greenl. Evid., § 367; Eex v. Williams, 7 Car. & P. 320; Eegina V. Nicholas, 2 Car. & K. 246. 25. Per Pollock, C. B., Eegina v. Nicholas, 2 Car. & K. 246. A child is not incompetent to testify because instructed by a minister concerning the nature of an oath between the first day, when offered, and the next, when permitted to testify. Common- wealth V. Lynes, 142 Mass. 577. With regard to the weight and ef- fect of the testimony of children, Blackstone observes that when the evidence of children is admitted, " it is much to be wished, in order to ren- der the evidence credible, that there should be some concurrent testimony of time, place, and circumstances, in order to make out the fact; and that a conviction should not be grounded on the unsupported accusation of an infant under years of discretion." 4 Bl. Com. 214. To this Mr. Phillips replies that in many cases, undoubt- edly, the statements of children are to be received with great caution; yet that a prisoner may be convicted upon such testimony alone and un- supported ; and that the extent of cor- roboration necessary is a question ex- clusively for a jury. It may be ob- served that the preliminary inquiry as to the competency is not always of the most satisfactory description, and is such that a child might, upon slight practicing of the memory, ap- pear well qualified. The severest test § IGOl INFANCY. 1156 child's examination shows an utter want of anything like a knowl- edge of the nature or character and consequences of an oath, or of human relations to God and the Divine penalties denounced against false swearing, the child ought not to be allowed to testify.^' § 1001. Marriage Settlements of Infants. With respect to the marriage settlement of infants, there was formerly considerable controversy. For, on the one hand, it was urged that infants were in general incapable of entering into valid contracts with respect to their property; on the other, that since infants might make a valid contract of marriage, they ought to be able to arrange the preliminaries. At an early period the opinion prevailed in England that the marriage consideration communi- cated to the contracts of infants, respecting their estate, an efficacy similar to that which the law stamps upon marriage itself; and Lords Hardwicke and Macclesfield contributed to strengthen it, by maintaining that the real estate of an infant would be bound by a marraige settlement.^' Lord Northington held later to a different opinion; and Lord Thurlow overturned the doctrine altogether, boldly declaring that the contracts of male and female infanta do not bind their estates, and that consequently a female infant can- not be bound by any articles entered into during minority, as to her real estate ; but may refuse to be bound, and abide by the interest the law casts upon her, which nothing but her own act after the period of majority can fetter or affect.^' Other distinguished equity jurists, including Lord Eldon, subsequently expressed their approval of Lord Thurlow's decision.^* And the rule became set- appears in the examination which fol- fant not compellable to testify in his lows ; and Mr. Phillips well concludes : suit, but his deposition, though given ' ' Independently of the sanction of freely on his part, may be suppressed, an oath, the testimony of children, af- at the discretion of the court, as cen- ter they have been subjected to cross- taining admissions unfavorable to his examination, is often entitled to as cause. Serle v. St. Eloy, 2 P. Wms. much credit as that of grown per- 386; Napier v. Effingham, 2 P. Wms. sons; what is wanting in the per- 403; Moore v. Moore, 4 Sandf. Ch. fection of the intellectual faculties 37. But see Walker v. Thomas, 2 is sometimes more than compensated Dick. 781; Bennett v. Welder, 15 Ind. by the absence of motives to deceive. ' ' 332. . 1 Phil. Evid., 9th ed., 6, 7. See Bea- 27. Harvey v. Ashley, 3 Atk. 607 ; son V. State, 72 Ala. 191; State v. Cannel v. Buckle, 2 P. Wms. 243; Belton, 24 S. C. 185. Peachey, Mar. Settl. 25 et seq. 26. On the principle that chancery 28. Drury v. Drury, 2 Eden, 58; is bound to see that an infant liti- Durnford v. Lane, 1 Bro. C. C. 115; gant's rights and interests are pro- Clough v. Clough, 5 Ves. 716. tected, not only is an unwilling in- 29. See Peachey, Mar. Settl. 28; 1157 DISABILITIES. § 1001 tied within the next fifty years, that the real estate of a female infant was not bound by the settlement on her marriage, because her real estate does not become by the marriage the absolute prop- erty of the husband, although by the marriage he takes a limited interest in it.*° So was it decided that neither the approbation of the parents or guardians, nor even of the court of chancery, inde- pendently of positive statute, would make the infant's settlements binding.*^ The inconvenience of such a state of things called for statute remedy; and in 1855 an act was passed which enabled male infants not under twenty, and female infants not imder seventeen, with the approbation of the court of chancery, to make valid settlements of all their property, real or personal, and whether in possession, reversion, remainder, or expectancy/^ The statute has already received some interpretation in the courts; and so much in favor was it, that almost immediately upon its passage it was acted upon in chancery. Under this statute settle- ments have been upheld even where infant wards married in con- tempt or defiance of court ; and a settlement may be made on the occasion of an infant's marriage after the marriage has actually taken place.*^ But aside from the operation of such a statute, an infant who becomes a party to a marriage settlement may repudi- ate it within a reasonable time after attaining majority.^* Milner v. Lord Harewood, 18 Ves. ress, L. E. 7 Ch. D. 738. Or exercise 275; Caruthers v. Caruthers, 4 Bro. during minority a power which was C. C. 509. apparently so intended in trust settle- 30. Simson v. Jones, 2 Euss. & M. ment. J6.; Andrews v. Andrews, 15 376; Campbell v. Ingilby, 21 Beav. Ch. D. 228. 567; 25 L. J. Eq. 760. For summary 33. Settlement held valid either of the English chancery doctrine, see under the inherent jurisdiction of Peaehey, Mar. Settl. 37. chancery over the property of its 31. Peaehey, Mar. Settl. 53, 54; wards or under the infant's settle- 76., 29-43, and cases cited passim; ment act; and even if invalid in its In re Waring, 21 L. J. Eq. 784 ; Sim- inception it had been adopted, eon- son V. Jones, 2 Euss. & M. 365; Bor- firmed, and acquiesced in by the in- ton V. Borton, 16 Sim. 552; Field v. fant, by various acts during and af- Moore, 25 L. J. Eq. 69; 25 E. L. & ter her coverture. Buckmaster v. Eq. 498. Buckmaster, 33 Ch. D. 482. And see 32. 18 & 19 Vict., ch. 53. See Sampson Be, 25 Ch. D. 482; §390. Peaehey, Mar. Settl. 45. For construe- 34. But where the settlement is tion of this statute, see In re Dalton, made by the court, its leave is neces- 39 E. L. & Eq. 145 ; s. e. 6, De G. M. sary in order to disafBrm. Brown v. & g! 201. But see Be Catherine Wadsworth, 168 N. T. 225, 61 N. E. Strong, 2 Jur. (N. S.) 1241; 5 W. E. 250; Smith v. Smith, 107 Va. 112, 57 107. Such infant may consent to a S. E. 577. proposed reinvestment. In re Card- See settlement with a covenant to § 1002 INFANCY. 1158 Tliis subject has received little attention in the United States; notwithstanding the plenary jurisdiction over the estates and persons of infants which a court of equity is admitted to exercise in many of our States. But in New York some decisions have been made, of a like tenor with those in the English chancery. Thus, in 1831, that a legal jointure settled upon an infant would bar her dower; and, by analogy to the statute, a competent and certain provision settled upon the infant in bar of dower, to which there is no objection but its mere equitable quality.^' And in 1843, that a female infant was not bound by agreement to settle her real estate upon marriage.^* So, in Maryland, a female infant cannot bind her real estate by her marriage settlement.*' An objection to the validity of a marriage settlement, on the ground that the parties to it were infants, can only be made by the parties themselves. A trustee acting under it has no such power.*' But since privies in blood can avoid an infant's voidable convey- ance, it is held that if the infant dies after making a settlement of real estate, and without having attained majority, her privies in blood may avoid the settlement.*" There are circumstances under which the infant's confirmation in part of a settlement will be taken as proof of an intention to confirm the whole of it.*° Marriage articles are not of themselves binding upon the infant or her privies; but they are binding upon the adult husband.*^ Yet if the infant dies under age, her privies cannot take the ben- efits of the proposed settlement and of the inheritance likewise; they may have the more beneficial, and that is all.*^ § 1002. Infant's Exercise of a Power. Where a power is given to an infant in general terms to direct a sale of the infant's land, this power cannot be exercised during settle after-acquired property thus re- 365; Whitingham 's Case, 8 Rep. 42; pudiated, Edwards v. Carter (1893), Macphers. Inf. 465; Brown v. Brown, App. C. 360. Same singular effects L. E. 2 Eq. 481. upon a settlement follow the Married 40. Davies v. Davies, L. E. 9 Bq. Women's Act (1893), 2 Ch. 307. See 468. As to settling a small fund to also Duncan v. Dixon, 44 Ch. D. 211. the separate use of a chancery ward 35. MeCartee v. Teller, 2 Paige, who marries the day after she comes 511. of age, see White v. Herriek, L. E. 4 36. Temple v. Hawley, 2 Sandf. Ch. Ch. 345. As to confirmation, see 153. White V. Cox, 2 Ch. D. 387. 37. Leyering v. Levering, 3 Md. Ch. 41. Brown v. Brown, L. E. 2 Eq. 365. See Burr v. Wilson, 18 Tex. 481; Whicheote v. Lyle's Ex'rs, 28 367. Pa. St. 73. 88. Jones v. Butler, 30 Barb. 641. 42. Brown v. Brown, lb. 39. Levering v. Levering, 3 Md. Ch. 1159 DISABILITIES. § 1003 infancy; for a power touching his own estate which is thus in- tended should be explicitly stated." But an infant may exerciso a naked power, unaccompanied with any interest, and requiring no exercise of discretion.** § 1003. Infant's Commercial Paper. An infant's commercial paper is voidable,*' whether negotiable or not.** It may be disaffirmed at majority,*' even though the note is held for value and without notice.*' The infant's promis- sory note as surety is void,*' and he may avoid it or his accommo- dation note though he misrepresents his age." A note given by the firm, or a contract to purchase, cannot be enforced against the minor partner when he pleads infancy, whether the firm has been already dissolved or not."^ We may here add that infancy of the maker of a note does not excuse the want of a demand on him by the holder in order to charge the indorsee.'^ The Negotiable Instruments Act does not change the common law as to the voidability of an infant's com- 43. Hill V. Clark, 4 Lea, 405. 44. lb.; Perry, Trusts, § 52. 45. Wright t. Buchanan (HI.), 123 N. E. 53; Murray v. Thompson, 136 Tenn. 118, 188 S. W. 578; Hefling- ton V. Jackson, 43 Tex. Civ. 560, 96 S. W. 108; Watson v. Euderman, 79 Conn. 687, 66 A. 515 ; Board of Trus- tees of La Grange Collegiate Institute V. Anderson, 63 Ind. 367, 30 Am. E. 224; Gray v. Grimm, 157 Ky. 603, 163 8. W. 762; Minock v. Shortridge, 21 Mich. 304; Nichols & Shephard Co. V. Snyder, 78 Minn. 502, 81 N. W. 516 ; Darlington v. Hamilton Bank of New York City, 116 N. T. S. 678, 63 Mise. 289; Murray v. Thompson (Tenn.), 188 S. W. 578, L. E. A. 1917B, 1172; Grauman, &c., Co. v. Krienitz, 142 Wis. 556, 126 N. W. 50. 46. Wright v. Buchanan (111.), 123 N. E. 53. 47. Watson v. Euderman, 79 Coim. 687, 66 A. 515. 48. Seeley v. Seeley, &c., Co., 128 la. 294, 103 N. W. 961. The paper may not be voidable in the hands of a iona fide purchaser where there is evidence of emancipa- tion or that the infant was so en- gaged in business to warrant a pru- dent person in believeing that he was competent to contract. Seeley v. See- ley-Howe-Le Van Co., 128 la. 294, 103 N. W. 961; Darlington v. Hamilton Bank, 63 Misc. 289, 116 N. T. S. 678. But see Murray v. Thompson, 136 Tenn. 118, 188 S. W. 578 (holding that constructive notice of the infancy of the maker is necessary to enable the infant indorser to disaffirm). 49. Maples v. Wightman, 4 Conn. 376; Curtin v. Patton, 11 S. & E. 305; Nightingale v. Withington, 15 Mass. 272. An assignment by way of equi- table mortgage to secure an infant who becomes surety becomes inoperative when the condition of the bond is per- formed. Trader v. Jarvis, 23 W. Va. 100. 50. Grauman, &c., Co. v. Krienitz, 142 Wis. 556, 126 N. W. 50. 51. Stem V. Meikleham, 56 Hun, 475; Neal v. Berry, 86 Me. 193. 52. Wyman v. Adams, 12 Cush. 210. § 1005 INFANCY 1160 mercial paper/* It merely prevents the indorsement from being void, but does not affect the right to disaffirm."* Therefore his indorsement of a note during minority gives a good title to the indorsee, subject to disaffirmance. "^ The infancy of one joint maker is not a defence to the others."* § 1004. Trusts. An infant may be a trustee."' If he takes title to land as true- tee he can convey or mortgage it as such, but cannot disaffirm, such acts on the ground of infancy."* He may be liable on a construc- tive trust."" His declaration of trust is voidable, but is good till disaffirmed.'" He is not bound by the accounts of trustees for him unless he attends their settlement by his guardian,*^ nor is he bound by his consent to the trustee's acts.'^ § 1005. Adverse Possession. The statute of limitations will not run against an infant during minority so as to enable an adverse occupier of his land to obtain a title against him/* even though the land is held in trust for 53. Murray v. Thompson, 136 Tenn. 118, 188 S. W. 578. 54. Murray v. Thompson, 136 Tenn. 118, 188 S. W. 578, L. E. A. 1917B, 1172. The provision of the Negotiable In- struments Act that the note of an in- fant passes title was enacted merely to dofity existing law, and to enable the subsequent holder to enforce the paper against all parties prior to the infant. Murray v. Thompson, 136 Tenn. 118, 188 S. W. 578, L. E. A. 19176, 1173. 55. Nightingale v. Withington, 15 Mass. 278, 8 Am. Dec. 101. 56. Gray v. Grimm, 157 Ky. 603, 163 S. W. 762. 57. Sims V. Guuter (Ala.), 78 So. 62; Des Moines Ins. Co. v. Mclntire, 99 la. 50, 68 N. W. 565; Hlawaty v. Zeoek, 253 Pa. 311, 98 A. 557; Clary V. Spain, 119 Va. 58, 89 S. B. 130. 58. Des Moines Ins. Co. v. Mclntire, 99 la. 50, 68 N. W. 565; Hlawaty v. Zeoek, 253 Pa. 311, 98 A. 557. 59. Levin v. Ritz, 41 N. Y. 8. 405, 17 Misc. 737. 60. Eldriedge v. Hoefer, 93 P. 248 (judg. mod., 52 Ore. 241, 94 P. 563). 61. Chandler v. Jones, 172 N. C. 569, 90 S. E. 580. 62. Clay v. Thomas, 178 Ky. 199, 198 S. W. 762; Gibney v. Allen, 156 Mich. 301, 130 N. W. 811, 16 Det. Leg. N. 159. 63. Schauble v. Sehultz, 137 F. 389, 69 C. C. A. 581; Buford v. Kerr, 33 C. C. A. 166, 90 F. 513, 86 F. 97; Bradford v. Wilson, 140 Ala. 633, 37 So. 395; Taylor v. Leonard, 94 Aik. 122, 126 S. W. 387. In Georgia the rule is established by statute. "Vinton v. Powell, 136 Ga. 687, 71 S. B. 119. In the same State the reason of the rule is said to be that during minority there is no one charged with the duty to bring ejectment to interrupt the running of the statute. Brown v. Hooks, 133 Ga. 345, 65 S. E. 780; Vinton v. Powell, 136 Ga. 687, 71 S. E. 1119; Harris v. MeCrary, 17 Ida. 300, 105 P. 558; Pope v. Brassfield, 110 Ky. 128, 61 S. W. 5, 22 Ky. Law Eep. 1613 ; Landry v. Landry, 105 La. 362, 29 So. 900; Jenkins v. Salmen Brick & Lumber Co., 120 La. 549, 4& 1161 DISABILITIES. § 1005 him,'* but it will run in his favor,'^ and he need not make a new entry on attaining full age.'° The statute begins to run or resumes running at majority,''' if not then under other disability, such as coverture.'* The suspension of the statute as against the infant will not extend to his cotenants," unless the cotenants are also minors, in which case the statute will be suspended till the young- est has reached majority.'"' So. 435; Parker v. Ricks, 114 La. 942, 38 So. 687; Pennington v. Early (N. J.), 43 A. 707; Bess Mar Realty Co. V. Capell, 164 N. Y. S. 803 ; Cobb V. Klosterman, 58 Ore. 211, 114 P. 96; Stahl V. BufEalo R. & P. Ry. Co. (Pa.), 106 A. 65; Long v. Cummings, 91 S. C. 521, 75 S. E. 134; Winter T. Hainer, 107 Tenn. 337, 64 S. W. 44; Barnham v. Hanly, &e., Co. (Tex. Civ.), 147 S. W. 330; Hays v. Hinkle (Tex. Civ.), 193 S. W. 153; Babcoek Lumber & Land Co. v. Ferguson (U. S. D. C. N. C), 243 F. 623; Futch v. Parslow, 64 Fla. 279, 60 So. 343; Davis V. Threlkeia, 58 Kan. 763, 51 P. 226 ; Biedenstein v. Mount Pleasant Inv. Co. (Mo.), 192 S. W. 937. 64. Cameron v. Hicks, 141 N. C. 21, 53 S. E. 728. 65. Killebrew v. Mauldin, 145 Ala. 654, 39 So. 575; Ross v. Richardson, 173 Ky. 255, 190 S. W. 1087; Dunlap V. Robinson, 87 S. C. 577, 70 S. E. 313; Wood v. Bapp (8. D.), 169 N. W. 518; Woodruff v. Roysden, 105 Tenn. 491, 58 S. W. 1066, 80 Am. St. R. 9'05; Coke v. Ikard, 39 Tex. Civ. 409, 87 S. W. 869; B. W. Wier Lum- ber Co. V. Conn. (Tex. Civ.), 156 S. W. 276 ; GrifBn v. Houston Oil Co. of Texas (Tex. Civ.), 149 S. W. 567. 66. Dunlap v. Robinson, 87 S. 0. 577, 70 S. E. 313. 67. Buford v. Kerr, 86 F. 97, 90 P. 513, 33 C. C. A. 166. It has been held error to charge that where infants were minora when an adverse possession commenced against them the statute did not run till they conveyed their interest. Carney v. Hennessey, 74 Conn. 107, 49 A. 910, 53 L. R. A. 699, 92 Am. St. B. 199; Brown v. Hooks, 133 Ga. 345, 65 S. E. 780; Hooks v. Brown, Id.; Coe v. Sloan, 16 Ida. 49, 100 P. 354 ; Hamm V. McKenny, 73 Ore. 347, 144 P. 435; Burnham v. Hardy, &c., Co. (Tex. Civ.), 147 S. W. 330. 68. Pope V. Brassfieia, 110 Ky. 128, 61 S. W. 5, 22 Ky. L. 1613. 69. Sibley v. Sibley, 88 S. C. 184, 70 S. E. 615. 70. GUbert v. Hopkins, 204 F. 196, 204; Wenger v. Thompson, 128 la. 750, 105 N. W. 333 ; Garrett v. Wein- berg, 48 S. C. 28, 26 S. E. 3. § 1006 INFANCY. 1162 CHAPTEK n. ACTS VOID AND VOIDABLE. Bection 1006. General Principle of Binding Acts and Contracts, as to Infants. 1007. Test as to Void or Voidable. 1008. Priviledge of Avoidance Personal to Infant; Rule as to Third Person, &c. 1009. Modem Tendency to Eegard Infant's Acts and Contracts as Voidable Bather Than Void. 1010. Same Subject; Bonds, Notes, &c. 1011. Rule of Zouch v. Parsons. ; 1012. Letters of Attorney; Cognovits, &c. ' 1013. Illustrations. 1014. Trading and Partnership Contracts. 1015. Void and Voidable Acts Contrasted; When May Voidxible Acts Be Affirmed or Disaffirmed. § 1006. General Principle of Binding Acts and Contracts, as to Infants. One leading principle runs through all cases which relate to infants. It is that such persons are favorites of the law, which extends its protection over them so as to preserve their true inter- ests against their own improvidence, if need be, or the sinister designs of others. This principle is found constantly in chancery practice. We have traced it already in cases of custody, control, and guardianship, and particularly in such as come before the American courts. It appears again in matters of legal emanci- pation and the minor's right to his own wages. It generally deter- mines the result of transactions between an infant and his parent or guardian, where fraud and undue influence are suspected, or in resulting trusts to preserve the child's property. It is applied when a guardian presents his accounts for allowance. We are now to see this same principle at work in the general transactions of infants, controlling and regulating them in great measure, and serving better than any other to explain the shifting and contradic- tory decisions of the English and American courts on this vexed subject. Infancy is a personal privilege, allowed for protection against imposition. The general rule of the present day is that an infant shall be bound by no act which is not beneficial to him.'* And 71. Smith, Contr. 225 ; Met .Contr. 38, 39 ; 2 Kent, Com. 234. 1163 ACTS VOID AND VOIDABLE. § 1007 most acts and contracts of infants are divided into the two classes of void and voidable ; a third class — namely, of binding acts and contracts — still remaining for separate consideration in our next chapter. § 1007. Test as to Void or Voidable. There is much confusion in the older hooks on the subject of void and voidable acts and contracts.'"' The keenness with which such a distinction must always cut is an objection to its practical use at the present day; yet writers have sought to adapt the weapon to the infant's wants. They have searched for some in- fallible test between void and voidable. Thus Mr. Bingham, after a review of the English cases, years ago, concluded that the only safe criterion was, that " acts which are capable of being legally ratified are voidable only; and acts which are incapable of being legally ratified are absolutely void." ''^ But this was only to shift the uncertainty, and replace one difficulty by another. What acts can be legally ratified and what cannot? As Kent property ob- serves, such a criterion does not appear to free the question from its embarrassment or afford a clear and definite test.'* Again, a Massachusetts judge of repute declared, many years ago, that the books agree in one result; that whenever the act done may he for the infant's benefit it shall not be considered void, but he shall have his election, when he comes of age, to affirm or avoid it ; and this, he adds, is the only clear and definite proposition which can be extracted from the authorities.''^ Even this rule, though much better, is found difficult of application, and has been pronounced unsatisfactory in some of the later cases.'"' Besides, it is lacking in comprehensiveness and scope. A more precise and intelligible test than either was that applied in one of the earlier English cases by Chief Justice Eyre, and cited since with approval by Judge Story and Chancellor Kent: '' namely, that where the court can pronounce that the contract is for the benefit of the infant, as, for instance, for necessaries, then it shall bind him; where it can 78. See Shep. Touch. 232; Bac.Abr. Dutch, 14 Mass. 457. See 2 Kent, Infancy and Age (I.), and cases Com. 234; Met. Contr. 39. cited in Zouch v. Parsons, 3 Burr. 76. Met. Contr. 40; 1 Am. Lead. J7g4_ Cas., 4th ed., 242. 78 Bine Inf. 234. '''• ®^^ United States v. Bainbridge, 74. 2 Kent, Com. 234. 1 Mason, 83; 2 Kent, Com. 236; Mc- 75! Per Parker, 0. J., WHtney t. Gan v. Marshall, 7 Humph. 121. § 1007 INFANCY. 1164 pronounce it to be to his prejudice, it is void; and that where it is of an uncertain nature, as to benefit or prejudice, it is voidable only, and it is in the election of the infant to affirm it or not.^* The doctrine seems hardly capable of a closer analysis ; yet even this statement of the legal test is by no means clear and conclusive. The equitable doctrine differs not from the legal as to the con- tracts of infants. In general, when a contract is not manifestly for the benefit of an infant, he may avoid it, as well in equity as at law ; and when it can never be for his benefit, it is utterly void. Infants are favored in all things which are for their benefit, and are saved from being prejudiced by anything to their disadvantage. For infants are by law generally treated as having no capacity to bind themselves, from the want of sufficient reason and discern- ment of understanding. In regard to their acts, some are void- able and some are void ; so in regard to their contracts, some are voidable and some are void." The liberality and freedom exer- cised in common-law courts at the present day, in shaping general doctrines with reference to infants and their contracts, must be ascribed in a large degree to the influence of the equity tribunals and their decisions. " In short," as Judge Story observes, " the disabilities of an infant are intended by law for his own protec- tion, and not for the protection of the rights of third persons ; and his acts may therefore, in many cases, be binding upon him, although the persons, under whose guardianship, natural or posi- tive, he then is, do not assent to them." ^° Where the contract is voidable, not void, the infant has his election to avoid it either during his minority or within a reasonable time after he attains majority; otherwise, it is taken to have been confirmed, and so binds him forever, since he became capable, when an adult, of confirming it. 78. Keane v. Boycott, 3 H. Bl. 511. word "void" may mean incapable of And see Green v. Wilding, 59 la. 679. 'Being enforced; and the plea of in- The rule is that contracts of an in- fancy is a bar to any demand on one fant, caused by his necessities or contract as well as the other. But manifestly for his advantage, are valid ' ' void ' ' may mean, too, incapable of and binding, while those manifestly being ratified. for his hurt are void. Contracts fall- 79. 1 Story, Eq. Juris., §§ 249, 241 ; ing between these classes are voidable. 1 Fonbl. Eq., b. 1, ch. 2, § 4. And Philpot V. Bingham, 55 Ala. 435. see Turpin v. Turpin, 16 Ohio St. 270. Parke, B., in Williams v. Moor, 11 M. 80. United States v. Bainbridge, 1 & W. 256, 264, alludes to the uncer- Mason, 83. tain sense of the word "void." The 1165 ACTS VOID AND VOIDABLE. § 1008 § 1008. Privilege of Avoidance Personal to Infant; Rule as to Third Person, &c. The privilege of avoiding his acts or contracts, where these are voidable, is a privilege personal to the infant^ which no one can exercise for him, except his heirs and legal representatives.*^ Hence the other contracting party remains bound, though the infant be not; for being an indulgence which the law allows infants, to secure them from the fraud and imposition of others, it can only be intended for their benefit, and is not to be extended to persons of the years of discretion, who are presumed to act with sufficient caution and security.'^ And were it otherwise, this priv- ilege, instead of being an advantage to the infant, would in many cases turn out greatly to his detriment. Being thus personal, the defence of infancy does not go to any stranger. Thus, where a person of full age promises to marry a minor and afterwards breaks oflF the match, he may be sued by the minor upon this contract ; though he would have had no corresponding remedy against the minor for breach of promise.** So a third person, not a party to the contract or transaction, cannot take advantage of the infancy of the parties. Thus, in an action for seducing a servant from his master's service, the defendant cannot justify on the ground that the servant was an infant, and therefore not by law bound to perform his contract for service made with the master.** On the same principle (connected with others), the 81. United States v. Bainbridge, 1 Abr. Inf. I. 4; 1 Pars. Contr. 275 Mason, 83 ; Keane V. Boycott, 2 H. Bl. Johnson v. Eoekwell, 13 Ind. 76 511; Met. Contr. 38; Smith, Contr. Hartness v. Thompson, 5 Johns. 160 231 ; Harvey v. Briggs, 68 Miss. 60. Brown v. Caldwell, 10 S. & R. 114. 82. Eiley v. Dillon (Ala.), 41 8. A contract of bailment made by the 768; Smoot v. Ryan (Ala.), 65 So. bailee with the agent of an undis- 828 ; Chapman v. Duffy, 20 Colo. App. closed principal, who proves a minor, 471 79 P. 746; Wright v. Buchanan cannot be rescinded by the bailee on (111.), 123 N. E. 53; LafoUett v. the ground of the bailor's minority, Kyle,' 51 Ind. 446; Johnson v. Rock- without delivering the goods to him. well,'l2 Ind. 76; Latrobe v. Dietrich, Stiff v. Keith, 143 Miss. 224. 114 Md. 8, 78 A. 983 ; Widrig v. Tag- 83. Holt v. Ward, 2 Stra. 937; Har- gart, 51 Mich. 103, 16 N. W. 251. vey v. Ashley, 3 Atk. 610; Hunt v. An infant's right to disaffirm a con- Peake, 5 Cow. 475; Willard v. Stone, veyance of her reaUty is a legal privi- 7 Cow. 22; Warwick v. Cooper, 5 lege of which all persons must take Sneed, 659; Cannon v. Alsbury, 1 notice. Watson V. Peebles, 102 Mi38. Marsh. 78 ; Rush v. Wick, 31 Ohio St. 725 59 So. 881 ; Griffith v. Schwender- 521. man 27 Mo. 412 ; Near v. Williamson, 84. Keane v. Boycott, 8 H. Bl. 511; 166 Mo 358 66 8 W. 160; Webb v. O'Rourke v. John Hancock Mut. Life Harris '(Okla.), 121 P. 1082; Bac. Ins. Co., 23 R. I. 457, 50 A. 834, 57 § 1008 INFANCY. 1166 acceptor of a bill of exchange, or the maker of a promissory note, cannot resist payment in a suit by an indorsee, though the indorser be an infant.*^ Nor can the purchaser at a sale under an execu- tion set up infancy to defeat prior transactions of the judgment debtor.'^ Nor can the vendor avoid the infant's purchase on such a ground.*' Nor can infancy of the mortgagor be set up by one with a junior lien to advance his own security.'* Nor is a stranger permitted to impeach the conveyance of an infant.*' Nor can a corporation in which an infant owns stock reject his transfer of it.°° Nor can an insurance company which insures the prop- erty of an infant repudiate its liability on the ground that the infant is not bound.®^ Furthermore, the copartners of an infant cannot use his right of avoidance for their own benefit.'^ In fine, the defence of infancy is for the benefit and protection of the infant ; and other persons may not set it up for their own benefit, at all events if the contract be not void.^^ Therefore his creditors cannot compel him to disaffirm,®* or exercise the power for him to subject his property to their debts.'° So, too, it is the settled doctrine that infancy does not protect the indorsers or sureties of an infant ; or those who have jointly entered into his voidable L. B. A. 496, 91 Am. St. E. 643 (hold- creditors. Washliand v. Waahband, ing that the beneficiary may reply 27 Conn. 424. the insured's infancy to the insurer's 88. Baldwin v. Hosier, ^8 Fed. 810. defence of false warranties). 89. Dominick v. Michael, 4 Sandf. 85. Met. Contr. 39'; Taylor v. 374. Croker, 4 Esp. 187 ; Nightingale v. 90. Smith v. Eailroad, 91 Tenn. 231. Withington, 15 Mass. 273; Hardy v. 91. Monaghan v. Fire Ins Co., 53 Waters, 38 Me. 450; Frazier v. Mas- Mich. 238. sey, 14 Ind. 382. 92. Brown v. Hartford Ins. Co., 117 86. Alsworth v. Cordtz, 31 Miss. 32. Mass. 479; Winchester v. Thayer, 129 87. Oliver v. Houdlet, 13 Mass. 237. Mass. 129. A sale to an infant is a valid transfer 93. Beardsley v. Hotchkiss, 96 N. T. of the property out of the vendor, even 201, a ease of marriage settlement, though the infant be not bound after- 94. Watson v. Euderman, 79 Conn, wards to pay the stipulated price. 687, 66 A. 515; Nutt v. Summers, 78 Crymes v. Day, 1 Bail. 320. Where a Va. 164. minor agrees, as the consideraition of 95. McCarty v. Murray, 3 Gray the conveyance of land, to pay certain (Mass.), 578; Kendall v. Lawrence, debts of the grantor, and afterwards 22 Pick. (Mass.) 540; Nutt v. Sum- does in fact pay them, it is held that mers, 78 Va. 164; Gayle v. Hayes' the agreement constitutes a valuable Adm'r, 79 Va. 542 (holding that a consideration for such conveyance, and creditor occupies not higher ground will support it against the grantor's as to the infant or his property than a guardian). 1167 ACTS VOID AND VOIDABLE. § 1009 undertakings. They, if of full age, may be held liable, though the infant himself should escape responsibility.*" But third persons should be allowed to protect themselves against incurring undue liabilities on an infant's behalf. Thus, an officer selling property at public auction is not bound to accept the bid of an infant." And although infancy is a personal priv- ilege, yet the administrator of the estate of an infant may avail himself of the infancy of his intestate, to avoid or uphold a trans- action to which the latter was a party during his life, and which remained voidable at his death.®* And as a rule the right of avoid- ance, with due limitations of time and circumstances, passes to privies in blood entitled to the estate; " in short, to his heirs or legal representative; § 1009. Modern Tendency to Regard Infant's Acts and Con- tracts as Voidable Rather Than Void. The strong tendency of the modem cases is to regard all acts and contracts and all transactions of infants as voidable only; and thus almost to obliterate the ancient distinction of void and void- able contracts altogether.^ And the dicia are of frequent occur- 96. Motteaux v. St. Aubin, 2 Black, 1133; Jafifray v. Fretain, 5 Esp. 47; Hartness v. Thompson, 5 Johns. 160; Parker v. Baker, 1 Clarke Ch. (N. T.) 136; Taylor v. Dansby, 42 Mich. 82. 97. Kinney v. Showdy, 1 HiU, 544. 98. Counts V. Bates, Harp. 464; Parsons v. Hill, 8 Mo. 135 ; Turpin v. Turpin, 16 Ohio St. 270. 99. Eiley v. Dillon (Ala.), 41 So. 768; Hill v. "Weil (Ala.), 80 So. 526; Kiley v. Dillon & Pennell, 148 Ala. 283, 41 So. 768 ; Bartlett v. Cowles, 81 Mass. 445; Bartlett v. Drake, 100 Mass. 176, 97 Am. Dec. 92, 1 Am. B. 101; Walsh V. Young, 110 Mass. 399; Lurville v. Greer, 165 Mo. 380, 65 S. W. 579; O'Eourke v. Hall, 56 N. T. S. 471, 38 App. Div. 534; Blake v. HoUandsworth (W. Va.), 76 S. E. 814, 43 L. E. A. N. S. 714; Blake v. HoUandsworth, 71 W. Va. 387, 76 S. E. 814. The heirs may disaffirm at any time before they are barred by the statute, or, if the ancestor is a mar- ried woman, till after the expiration of the statutory period after the termin- ation of an estate of curtesy, and mere silence or inertness is immaterial unless there are facts amounting to ratification. Blake v. HoUandsworth (W. Va.), 76 S. E. 814, 43 L. E. A. N. S. 714; Dominick v. Michael, 4 Sandf. 374; Beeler v. Bullett, 3 A. K. Marsh. 281 ; Nelson v. Eaton, 1 Eedf . (N. T. Sur.) 498; JeflEord v. Eing- gold, 6 Ala. 544; Illinois Land Co. v. Bonner, 75 111. 315; Veal v. Fortson, 57 Tex. 482; Sharp v. Eobertson, 76 Ala. 343; Harvey v. Briggs, 68 Miss. 60. And see Nolte v. Libbert, 34 Ind. 163. The principle of the text ap- plies to marriage articles. See supra, § 399. Devisees under a will, as strangers privy in estate only, cannot avoid the infant 's contract. Bozeman V. Browning, 31 Ark. 364. But see Shreeves v. Caldwell, 135 Mich. 323, 97 N. W. 764, 10 Det. Leg. N. 782, 106 Am. St. E. 396. 1. In re Huntenberg, 153 F. 768 Carmen v. Fox, &c., Corp., 258 F. 703 Sims V. Gunter (Ala.), 78 S. E. 63 § 1009 INFANCY. 1168 rence at the present day that acts and contracts of an infant are not absolutely void, but voidable only, unless manifestly to the infant's prejudice ; and that beneficial contracts are only voidable at most.^ This makes all the stronger the position already taken, that an adult party cannot disaffirm such a transaction. Yet there are cases where a contract may still be pronounced absolutely void. In Begina v. Lord, an English case, the question arose on the conviction of a servant for unlawfully absenting him- self from his master's employment. Denman, C. J., in delivering the judgment of the court, observed: "Among many objections, one appears to us clearly fatal. He was an infant at the time of entering into the agreement which authorizes the master to stop his wages when the steam-engine is stopped working for any cause. An agreement to serve for wages may be for the infant's benefit; but an agreement which compels him to serve at all times during the term, but leaves the master free to stop his work and his wages whenever he chooses to do so, cannot be considered as beneficial to the servant. It is inequitable and wholly void," * And conform- ably to such a principle, a contract which sets a minor child work- Walker V. Goodlett, 102 Ark. 383, 144 S. W. 189; Grievance Committee v. Ennis, 84 Conn. 594, 80 A. 767 ; Gan- non V. Manning, 42 App. D. C. 206; Putnal V. "Walker, 61 Pla. 720, 55 So. 844; Strain v. Hinds, 277 HI. 598, 115 N. E. 563; Wuller v. Chuse Gro- cery Co., 241 ni. 398, 89 N. E. 796; Appall V. Appell, 235 111. 27, 85 N. E. 205; Pope v. Lyttle, 157 Ky. 659, 163 S. W. 1121; Henderson v. Clark, 163 Ky. 192, 173 S. W. 367; Halcomb v. Ison, 140 Ky. 189, 130 S. W. 1070; MeCarty v. Murray, 3 Gray (Mass.), 578 ; Holmes v. Bice, 45 Mich. 142, 7 N. W. 772; Missouri, &c., Ass'n v. Eveler, 237 Mo. 679, 141 S. W. 877; ShafEer v. Detie, 191 Mo. 377, 90 S. W. 131; Eobinson v. Allison, 192 Mo. 366, 91 8. W. 115 ; Parrish v. Tread- way, 267 Mo. 91, 183 S. W. 580; Bag- get T. Jackson, 160 N. C. 26, 76 S. E. 86 ; Hoan v. Utter, 175 N. C. 332, 95 8. E. 565; Clapp v. Byrnes, 155 N. T. 535, 50 N. E. 277; New Tork, &c., Co. V. Fisher, 23 App. Div. 363, 48 N. T S. 152; McBroom v. Whitfield, 108 Tenn. "422, 67 8. W. 794; Hobbs V. Hinton, &e., Co., 74 W. Va. 443, 82 8. E. 267; Carrigan v. Davis (W. Va.), 100 S. E. 91; Grauman, Marx & Cline Co. v. Krienitz, 142 Wis. 556, 126 N. W. 50; Jones v. Valentine's School of Telegraphy, 122 Wis. 318, 99 N. W. 1043. See Met. Contr. 40; Shaw, C. J., in Eeed v. Batehelder, 1 Met. 559. 2. See Ridgely v. Crandall, 4 Md. 435; N. H. M. Fire Ins. Co. v. Noyes, 32 N. H. 345 ; Jenkins v. Jenkins, 12 la. 195; Scott V. Buchanan, 11 Humph. 468; Babeock v. Doe, 8 Ind. 110; Irvine v. Irvine, 9 Wall. 617; Bobinson v. Weeks, 56 Me. 102. 3. Clark v. Stanhope, 109 Ky. 521, 59 8. W. 856; Ward v. Sharpe, 139 Tenn. 347, 200 S. W. 974; Begina v. Lord, 12 Q. B. 757. Cf. Leslie v. Pitzpatrick, 3 Q. B. D. 229. In Corn V. Matthews (1893), 1 Q. B. 310, an apprenticeship deed somewhat of this character was refused enforcement against the minor. And see De Francesco v. Bomum, 45 Ch, D. 430. 1169 ACTS VOID AND VOIDABLE. § 1010 ing to pay off a creditor of someone else should be pronounced prejudicial to his interest and void, when the wages that ought to be his own are thus appropriated.* In general, any transfer of an infant's real or personal property which cannot possibly be for his benefit and is without consideration is void."* § 1010. Same Subject; Bonds, Notes, &c. So an infant's bond with penalty and for the payment of interest is held to be void on the ground that it cannot possibly be for his benefit.* And a bond executed by a minor as surety is void.'' So is declared to be a mortgage of a minor's property to secure her husband's debt.* And so is said to be a release by a minor to his guardian, which affords the latter more protection than a receipt.* But in Vermont it was decided that there is no general rule ex- empting an infant from paying interest as necessarily injurious to him.^" An infant's release of his legacy or distributive share is held to be void in Tennessee.^^ In such cases an infant is called upon to become the party to some undertaking substantially for the benefit of another, and not for his own profit. His indorse- ment or guaranty exposes him to a dangerous liability, and such acts are held void.^^ The construction of a local statute will in But see (1893) Baring v. Stanton, 3 Ch. 502 ; Danvilla v. Amoskeag Co., 62 N. H. 133. 4. Such contracts have been consid- ered where the minor son of a deceased father undertook to pay his father's debt by entering into the creditor's service; an undertaking not wholly without honor, from a family point of view, and yet apt to be oppressive on the other side, and properly disap- proved judicially even under mitigat- ing circumstances. In DubS v. Beau- dry, 150 Mass. 448, such a contract was fully executed during minority, but the court allowed the minor to re- pudiate on reaching fuU age and re- cover. In ancient times, as the court remarked, this contract would have been pronounced absolutely void. 5. Bloomingdale v. Chittenden, 74 Mich. 698; Robinson v. Coulter, 90 Tenn. 705; Person v. Chase, 37 Vt. 647; Oxley v. Tryon, 25 la. 95. u 6. Baylis v. Dineley, 3 M. & S. 477; Fisher v. Mowbray, 8 East, 330. 7. Allen v. Minor, 2 Call, 70; Met. Contr. 40; Camahan v. AUderdice, 4 Harring. 99. It should naturally fol- low that an infant's undertaking to become bail for another is void. Yet it is lately held that his indorsement upon a writ to become bail for the defendant is voidable only. Reed v. Lane, 61 Vt. 481. 8. Chandler v. McKinney, 6 Mich. 217; Cronise v. Clark, 4 Md. Ch. 403. See Colcock v. Ferguson, 3 Desaus. 482. 9. Fridge v. State, 3 Gill & Johns. 115. 10. Bradley v. Pratt, 23 Vt. 378. 11. Langford v. Frey, 8 Humph. 443. 12. Helland v. Colton State Bank, 20 S. D. 335, 106 N. W. 60; Margrett, Ex parte (1891), 1 Q. B. 413; and this however valuable be the consider- ation. 76. § 1010 INFANCT. 11 TO some cases determine that an instrument is void, not voidable.** An infant's stock speculations on margin have been declared in the nature of a wager contract and void.^* And an assignment by the infant in trust for the benefit of creditors is held in New York void and not voidable." Kow it is admitted that the decisions are frequently contradic- tory and uncertain; yet these cases of void' contracts almost invari- ably proceed upon the doctrine that the infant's act was positively prejudicial to his interest; and certainly, if any contract can be so pronounced on mere inspection, it is a contract whereby an infant becomes bound upon another's debt or disability. The technical form of the transaction is of less importance. There are many cases where an infant's bonds, mortgages, and promiseory notes have been held not void, but under the circumstances of the ease voidable only ; as where given in ordinary transactions which may possibly prove beneficial with relation to the minor's prop- erty." And reference to the latter cases will show that the modem rule is broadly announced in many States, that an infant's promis- sory note, his statutory recognizance, and his mortgage, whether of real estate or chattels, are all voidable, rather than void in general.*' Even an infant's contract as surety or indorser has lately been pronounced voidable and not void in numerous 13. Hoyt V. Swar, 53 HI. 134. 330 ; State v. Plaisted, 43 N. H. 413, 14. Euchiziy v. De Haven, 97 Pa. and cases cited; Palmer v. Miller, 25 St. 202. Barb. 339; Mustard v. WoUford, 15 15. Yates t. Lyon, 61 Barb. 305. Gratt. 339. Whether an infant's own 16. State V. Plaisted, 43 N. H. 413 ; statutory recognizance in a criminal Eichardson v. Boright, 9 Vt. 368; proceeding may not be more than Palmer v. Miller, 25 Barb. 399; Eeed voidable, t. e., binding, see next chap- V. Batchelder, 1 Met. 559'; Patchkin v. ter; State v. 'Weatherwax, 13 Kan. Cromack, 13 "Vt. 330; Conroe V. Bird- 463; Losey v. Bond, 94 Ind. 67; sail, 1 Johns. Cas. 127; Everson v. TTecker v. Koehn, 21 Neb. 559; Carpenter, 17 Wend. 419 ; Monu- Catlin v. Haddox, 49 Conn. 492 ; mental, etc., Association v. Herman, Hoyt v. Wilkinson, 57 Vt. 404. 33 Md. 128; Dubose v. Whedon, 4 No recovery can be had on a note McCord, 221; Little v. Duncan, 9 given by an infant for what he does Eich. 55. See Adams v. Eoss, 1 not need, — e. g., a buggy or horse, — Vroom (N. J.), 505; Kempson v. even by a bona fide holder; the nsual Ashall, L. E. 10 Ch. 15; Garin v. protection of a negotiable instrument Burton, 8 Ind. 69. But see McMinn taken when not overdue will not avail. V. Eichmond, 6 Terg. 9; Beeler v. Howard v. Simpkins, 70 6a. 322. Young, 1 Bibb, 619. See, as to assignee of an infant's 17. See e. g. Goodaell v. Myers, 3 mortgage, Bridges & 'White v. Bid- Wend. 479; Eeed v. Batchelder, 1 Met. well, 20 Neb. 185. 559; Patchkin v. Cromack, 13 Yt. il7l ACTS VOID AND VOIDABLE. § 1011 instances.^' THs we conceive to be the reasonable view of the subject; the rule of voidable, rather than void, applying wherever the transaction was not from its very nature such as could be pro- nounced prejudicial to the infant's interest, but might under some conditions be in a sense for his personal benefit" § 1011. Rule of Zouch v. Parsons. It is true, however, that the decisions are not invariably placed by the court upon such a ground. The rule of Perkins, which was adopted by the Court of King's Bench in the celebrated case of Zouch V. Parsons, is that all deeds of an infant which do not take effect by delivery of his hand are merely void, and all such as do take effect by delivery of his hand are voidable. For in the one case an interest is conveyed, in another a mere power.'"' This case has come down as authority for all future times ; and the rule has frequently been cited with approval, in support of mortgages, bonds, and deeds being as voidable only, in contrast with deeds delegating a mere power to sell or encumber, which are void. But we question the propriety of its modern application as a prin- ciple, however useful in describing an incident. So manual deliv- ery, it was said, must accompany the sale of an infant's personal property in order to render it valid.^^ The real reason of such a rule might have been that solemn instruments and transactions of grave importance ought not to be lightly entered upon, or be made 18. Owen v. Long, 112 Mass. 403; a lien for storage and repairs does Hardy V. Waters, 38 Me. 450; Harner not bind an infant's automobile, v. Dipple, 31 Ohio St. 72; Fetrow v. where the obligation is predicated on Wiseman, 40 Ind. 148; Williams v. the infant's obligation to pay. La. Harrison, 11 S. C. 412. And see Rose v. Nichols (N. J.), 103 A. 390; Beed v. Lane, 61 Vt. 481. Aborn v. Janis, 113 N. Y. S. 309 ; 62 19. Where the grantees in a deed of , Misc. 95 (aff. 106 N. T. S. 1115). gift are minors, the law will presume Nor is he bound by warranties in an an acceptance on account of the bene- application for a policy of insurance, ficial character of the conveyance. O'Rourke v. John Hancock, etc., Ins. Petre v. Petre (Ind. App.), 121 N. Co., 23 E. I. 457, 50 A. 834, 57 L. R. E. 285. Thus, infants are not bound A. 496, 91 Am. St. R. 643. by conditions in a deed to them. 20. Perkins, § 12; Zouch v. Par- Strothers 7. Woodcox, 142 la. 648, sons, 3 Burr. 1804; Bool v. Mix, 17 121 N. W. 51. Stock transactions re- Wend. 131 ; 3 Kent, Com. 236, 237, Iting in a loss are within the rule. n.; State v. Plaisted, 43 N. H. su Benson v. Tucker, 212 Mass. 60, 98 413; Conroe v. Birdsall, 1 Johna. Cas. N E 589, 41 L. E. A. (N. S.) 1219; 127; Seavey v. Hunter, 81 Tex. 644; Toung V.' Sterling, etc.. Works (N. Dexter v. Lathrop, 136 Pa, St. 568. T 1 102 A 395. ^^- ^°^^^ ■''• ^^^ Home, 15 Wend. A statute giving a garage keeper 631. § 1011 INFANCY. 1172' effective in future; but it is clear that ere the present day much of the ancient veneration for parchment deeds under seal has dis- appeared, while the tendency is to place real and personal estate transactions on much the same footing, distinguishing rather by the value than the nature of the property and by the consideration involved. We admit, however, that the common law draws a strong line of demarcation between real and personal property ; so that title transfer of the former kind requires far more positive formality than that of the latter. Now to continue. It is held that an infant may make a void- able purchase and take a voidable conveyance of land, for, says Lord Coke, striking the legal principle with wonderful clearness for that day, " it is intended for his benefit, and at his full age he may either agree thereunto and perfect it, or, without any cause to be alleged, waive or disagree to the purchase." "^ For this reason, rather than the technical one just referred to, it may be said in general that the conveyance of land by a minor is also voidable and not void ; '^^ though here again the courts have been prone to cite the rule of Perkins. But the decided oases usually presume that a valuable consideration has passed to the infant, or at least that there is nothing prima facie prejudicial to him. Lord Chancellor Sugden, in 1842, in Allen v. Allen, took occasion to review Lord Mansfield's decision in Zouch v. Parsons, and com- mended it as sound law in respect that a deed which takes effect by delivery, and is executed by an infant, is voidable only ; though he intimated that his own decision might equally well be referred 22. Co. Litt. 2b; Met. Contr. 40; 5 Monr. 344; Eagle Fire Ins. Co. v. Bac. Abr. Inf. 6; Ferguson v. Bell, Lent, 6 Paige, 635; Allen v. Poole, 54 17 Mo. 347. And see Speneer v. Carr, Miss. 323 ; Illinois Land Co. v. Bon- 45 N. Y. 406; also Hook v. Donald- ner, 75 HI. 315; Dixon v. Merritt, 21 Bon, 9 Lea, 56. Where a deed to an Mian. 196; Davis v. Dudley, 70 Me. infant was destroyed by the father 236; Weaver v. Carpenter, 42 la. before it was recorded, and a new 343; Sehaffer v. Lavretta, 57 Ala. 14; deed was executed by the same Nathans v. Arkwright, 66 Ga. 179; grantor to the father, it was held that Welch v. Bunee, 83 Ind. 382; Brant- the destruction of the deed did not, ley v. Wolf, 60 Miss. 420; Ellis t. even with the assent of the infant, Alford, 64 Miss. 8; Dawson ▼. divest his title, and that equity would Helmes, 30 Minn. 107; Bingham v. restore him to his former position. Barley, 55 Tex. 281; Bagley T. Brendle v. Herron, 88 N. C. 383. Fletcher, 44 Ark. 153; Birch v. Lin- 23. Kendall v. Lawrence, 22 Pick. ton, 78 Va. 584; Haynes v. Bennett, 540; Gillet v. Stanley, 1 Hill, 131; 53 Mich. 15. And so as to infant Bool V. Mix, 17 Wend. 119; Wheaton wife. Scranton v. Stewart, 52 Ind. V. East, 5 Terg. 41 ; Phillips v. Green, 68 ; Richardson v. Pate, 93 Ind. 423. UTS ACTS VOID AND VOIDABLE. § 1012 to the benefit arising to the infant from the deed ; which, indeed, was one of the grounds on which Lord Mansfield had decided that celebrated case.^* And to confirm our former distinction as the crucial one, it is held that an infant's conveyance of land by way of gift or without consideration or upon mere nominal consideration is absolutely void, because obviously prejudicial to his interests.^" So leases to infants are not absolutely void, but voidable only."' And an exchange of property made by an infant is voidable.^' And it is held that the infant's bond for title to real estate or his parol contract to convey is voidable and not void."* Also that his contract for the purchase of land is voidable."' A minor's tenancy by lease or otherwise is usually voidable by him.*' § 1012. Letters of Attorney ; Cognovits, &c. So a power of attorney to authorize another to receive seisin of land for an infant, in order to complete his title to an estate con- veyed to him by feoffment, is voidable only ; it being an authority to do an act for his probable benefit.*^ But letters of attorney from an infant conveying no present interest are held to be absolutely null. This point was discussed in Zoiich V. Parsons, and on the distinction of Perkins' rule, it was maintained that writings " which take effect " cannot include letters of attorney, or deeds which delegate a mere power and convey no interest. Whatever might be thought of this explana- tion, the conclusion follows : " that powers of attorney are an exception to the general rale, that the deeds of infants are only voidable ; and a power to receive seisin is an exception to that. The end of the privilege is to protect infants; and to that object all the rales and their exceptions must be directed." '" And the English courts have uniformly held the infant's warrant of attor- Or infant husband. Barker v. Wil- Landlord & Tenant, and eases cited son, 4 Heisk. 268; Tourse v. Nor- Griffith v. Schwenderman, 27 Mo. 412, cross, 13 Mo. 549. 27. Co. Litt. 51b; Williams t 24. Allen v. Allen, 3 Dru. & War. Brown, 34 Me. 594. 340. See Co. Litt. 51b, n. by Har- 28. Weaver v. Jones, 24 Ala. 420 gj^^g Teager v. Knight, 60 Miss. 730. 25. Swafford v. Ferguson, 3 Lea, 29. McCarty v. Woodstock Co., 92 292; Robinson v. Coulter, 90 Tenn. Ala. 463. 705. Cf. Slaughter v. Cunningham, 30. Valentine v. Canali, 24 Q. B. D. 24 Ala. 260. As to an infant's deed 166. for necessaries, see ch. 3. 31. Met. Contr. 41; 1 Roll. Abr. 26. Zouch V. Parsons, 3 Burr. 1806; 730; Zouch v. Parsons, supra. Hudson V. Jones, 3 Mod. 310; Taylor, 32. Per Lord Mansfield, in Zouch § 1012 INFANCY. 1174r ney void, even though executed jointly with others.*' In thia country there are decisions in some States to the same effect ; '* in others, again, the rule is deemed somewhat doubtful.*" An infant's power of attorney to another to sell his lands is- deemed so manifestly unheneficial on the face of it as to be void, and a sale made under such a power does not confer even an in- choate title.*® But a power of attorney from an infant to sell a note is lately held voidable, not void, in California.*' In Massa- chusetts an instrument of assignment, not under seal, which ap- points the assignee attorney to receive the fund to his own use, is not void.** And in Maine the act of an infant in transferring a negotiable note, though his name be written by another under parol authority, h voidable only.** The good sense of the rule seems to be, as an American writer observes, that an authority delegated by an infant for a purpose which may be beneficial to him, or which the court cannot pronounce to be to his prejudice, S'hould be considered as rendering the contract made, or act done by virtue of it, as voidable only, in the same manner as his personal acts and contracts are considered.*" And, we may add, the English and most of the American decisions do not seem to carry the rule beyond cases of the technical " warrant of attorney," to appear in court and bind the infant, as in confessing judgment, except it be with reference to an infant's land, which power stands also upon a strong footing of objection. What we call " powers of attorney " are less likely than the warrant of attorney to be to the infant's prejudice; though we may well assume that whatever an infant cannot do he cannot authorize another to do for him, so as to make the transaction more binding. V. Parsons, 3 Burr. 1804. And see Mass. 457; Met. Contr. 41; Cummings Cummings v. Powell, 8 Tex. 88. v. Powell, 8 Tex. 88; 1 Am. Lead. 33. Saunderson v. Marr, 1 H. Bl. Cas., 4tli ed., 143 et seq. 75; Ashlin v. Langton, 4 Moore & 36. Philpot v. Bingham, 55 Ala. S. 719, and cases cited. 435. Of. Weaver v. Carpenter, 42 34. Lawrence v. MeArter, 10 Ohio, la. 343; Armitage v. Widoe, 36 Mich. 37; Waples v. Hastings, 3 Harring. 124. 403; Bennett v. Davis, 6 Cow. 393; 37. Hastings v. Dollarhide, 24 Cal. Semple v. Monison, 7 Monr. 298; 19'5. Pyle V. Cravens, 4 Litt. 17; Knox v. 38. McCarty v. Murray, 3 Gray, Flack, 22 Pa. St. 337; Wainwright v. 578. And see Kingman v. Perkins, Wilkinson, 62 Md. 146. 105 Mass. 111. 35. Piekler v. State, 18 Ind. 266. 39. Hardy v. Waters, 38 Me. 450. But see Trueblood v. Traeblood, 8 40. Met. Contr. 42. And see Powell Ind. 195. See Whitney v. Dutch, 14 v. Gott, 13 Mo. 458. 1175 ACTS VOID AND VOIDABLE. § 1013 An infant cannot bind himself by cognovit. " We come to this conclusion," said Lord Abinger, " on three grounds, each of which is fatal to the validity of the cognovit. First, it is bad because it faUs within the principle which prevents an infant from appoint- ing and appearing in court by attorney ; he can appear by guardian only. Secondly, by this means the minor is made to state an ac- count, which the law will not allow him to do, so as to bind him- self ; if an action be brought against him, the jury are to determine the reasonableness of the demand made. Thirdly, the general principle of law is, that a minor is not to be allowed to do anything to prejudice himself or his rights."*^ E'er can he bind himself by the appointment of an agent.*^ The cases are not harmonious as to whether the act is void or only voidable.** Where such a contract is voidable merely, the appointment and the acts of the agent thereunder may be ratified or disaflBrmed after majority.** § 1013. Illustrations. An infant may in some States avoid his usurious contracts, and recover the money so lent under the count for money had and received.*^ But the policy of usury is becoming abandoned in many parts of the country. An infant may avoid his release of damages for an injury or an award upon a submission entered into by him. But if, upon trial, the jury shall find such damages to have been satisfied by an ade- quate compensation, the infant shall recover nominal damages only.*' The rule is general that an infant is not bound by his 41. Oliver v. Woodroffe, 4 M. & hauser, 69 Minn. 338, 72 HT. W. 697 W. 653 (1839). But the second of (voidable) ; Smoot v. Eyan (Ala.), 65 these grounds is not now tenable. See So. 828 (void) ; Penson v. Tucker, WilUams v. Moor, 11 M. & W. 256. 212 Mass. 60, 98 N. E. 589 (voida- 42. Smoot V. Eyan, 65 So. 828; ble). Benson v. Tucker, 212 Mass. 60, 98 44. In Louisiana it is held that a N. E. 589. So where a power of sale minor cannot disaffirm the act of an mortgage of real estate appointed agent as far as not beneficial, and the mortgagee the attorney of an in- affirm it to the extent to which it is fant mortgagor to sell the property beneficial. State ex rel. Stempel v. on foreclosure, a sale thereunder was New Orleans, 105 La. 768, 30 So. 97; not binding on the infant. Eocks v. Courselle v. Weyerhaeuser, 69 Minn. Cornell, 21 E. 1. 532, 45 A. 552. 328, 72 N. W. 697. 43. Sims V. Gunter (Ala.), 78 So. 45. MiUard v. Hewlett, 19 Wend. 62 (void) ; Simpson v. Prudential 301. Ins. Co., 184 Mass. 348, 68 N. E. 673, 46. Baker v. Lovett, 6 Mass. 78. A 63 L E A. 741 100 Am. St. Eep. mechanic's lien, where incident only 5«0 (voidable); Coursolle v. Weyer- under the local statute, to a legal § 1013 INFANCY. 1176 agreement to refer a dispute to arbitration; nor by an award, even in bis own favor ; tbougb tbis is usually voidable only." Among the acts of tbe infants wbicb are in the later cases regarded as voidable and not void (nor of course binding) are the following: His appeal from a justice's decision.** Judgments against him.*" His covenant to carry and deliver money."" His chattel mortgage.^^ His agreement to convey."'' His written obli- gation for the rent of land."' His agreement with others for the compensation of counsel retained in a lawsuit for their common benefit."* His executory contracts generally."" And, in short, his deeds and instruments under seal, with perhaps the exception of powers of attorney ; though it is otherwise, perhaps, if the instru- ment should manifestly appear on the face of it to be fraudulent or otherwise to the prejudice of the infant ; " and this," says Judge Story, " upon the nature and solemnity, as well as the operation of the instrument." "° In Massachusetts a contract of charter to an infant, though by parol, is voidable and not void."' So, too, an infant's promise to pay money borrowed on joint account with another."* And in various instances a family arrangement as to liability to pay, cannot attach against Sporr & Duvol v. Fla. Southern Ey. an infant's land, Davis v. State, 47 N. J. L. 340. 47. Watson on Awards, ch. 3, § 1; Smith, Contr. 280; Britton v. Wil- liams, 6 Munf. 453; Barnaby v. Bamaby, 1 Pick. 321. See Guardian and Ward, supra. 48. Eobbins v. Cutler, 6 Fost. 173. 49. Trapnall v. State Bank, 18 Ark. 53; Kemp. v. Cook, 18 Md. 130; Bickel V. Erskine, 43 la. 213 ; Wheeler V. Ahrenbeak, 54 Tex. 53-5; Walken- horst V. Lewis, 24 Kan. 420; Eng- land V. Garner, 90 N. C. 197; Parker T. Starr, 31 Neb. 680; Gates v. Pickett, 97 N. C. 21. Thus a judg- ment of partition is voidable as against minors who were not duly represented. Williams v. Williams, 9'4 N. C. 733 ; Montgomery v. Carlton, 56 Tex. 361. But the judgment is not to be impeached in a collateral suit. 76. See ch. 6, post. 50. West V. Penny, 16 Ala. 186. 51. Miller v. Smith, 26 Minn. 248; Corey v. Burtdn, 32 Mich. 30; Hongan V. Hoehmeister, 49 N. T. Super. 34; Co., 25 Fla. 185. But semble void under some circumstances, and at all events unenforceable against him dur- ing his minority. Barney v. Eut- ledge (1895), Mich. 52. Carrell v. Potter, 83 Mich. 377. 53. Flexner v. Dickerson, 72 Ala. 318. 54. Dillon v. Bowles, 77 Mo. 603. So as to an infant's contract cre- ating an easement in his land. Mc- Carthy V. Nicrosi, 72 Ala. 332. So as to infant's agreement to accept a consideration in lieu of dower. Drew V. Drew, 40 N. J. Eq. 458. And as to his assignment of wages, where no parental right intervened, see CNeil V. Chicago E., 33 Minn. 489. 55. But see next chapter. 56. Per Story, J., Tucker v. More- land, 10 Pet. 71; 2 Kent, Com. 236, 11th ed., n., and cases cited. And see Eegina v. Lord, 12 Q. B. 757. 57. Thompson v. Hamilton, 18 Pick. 425. 58. Kennedy v. Doyle, 10 Allen, 161. So, too, a purported gift to an 1177 ACTS VOID AND VOIDABLE. § 1013 settlement of an estate in which the minor is interested."* So is an infant's marriage settlement voidable in general.*" In so many cases of the character discussed in this chapter is the infant before or at majority presented as seeking and being permitted to set aside the transaction, that the voidable rather than void nature of the transaction is assumed, rather than asserted, and the decision is more to the point that, void or voidable, it does not under the circumstances bind him.°^ It has been repeatedly decided in England that where an infant becomes the holder of shares by his own contract and subscription he is prima facie liable to pay calls or assessments ; but he may repudiate that contract and subscription ; and if he does so while an infant, aldiough he may on arriving at full age affirm his repu- diation, or receive the profits, it is for those who insist on this liability to make out the facts.'^ A minor's contract for stock is doubtless voidable at least in this country,"* or if purely specula- tive and prejudicial to him may be even void,°* but in general his assignment of stock which he holds is voidable only."* An absolute gift of articles of personal property made by an infant can be revoked or avoided by him.°° So may his sale of personal property. °^ So may his assignment."* And the executed contract of an infant follows the same rule as an executory one; he may rescind the one as well as the other; the more so, where the other party can be put substantially in statu quo."^ But if before rescission the adult make a homt, fide sale of property pur- infant of a contract of purchase in- 63. Indianapolis Chair Co. v. Wil- volving pecuniary obligation. Armi- cox, 53 Ind. 429. tage V. Widoe, 36 Mich. 124. 64. Buchizky v. De Haven, 97 Pa. 59. Turpin v. Turpin, 16 Ohio St. St. 203. Cf. Crummey v. Mills, 40 270 : Jones v. Jones, 46 la. 466. Hun, 370. gQ „ \QQ\, 65. Smith v. Railroad, 91 Tenn. 221. 61 See e.g., Dub6 v. Beandry, 150 66. Person v. Chase, 37 Vt. 647; Mass. 448: Queen v. Lord, 12 Q. B. Oxley v. Tryon, 25 la. 95. So, too, - his deed of gift to a trustee. Slaugh- 62 Smith, Contr. 285; Newry & ter v. Cunningham, 24 Ala. 260. Qu., BnniskiUen E E. Co. v. Coombe, 3 whether not rather void. § 403. Exch 565; London & Northwestern 67. Towle v. Dresser, 73 Me. 252. R b' Co V. McMichael, 5 Exch. 114. 68. City Savings Bank v. Whittle, See as to the liability of a stock- 63 N. H. 587. Iblr in such cases. Brown v. Black, 69. Hill v. Anderson, 5 S. & M. 816 ; T r R Ch 939- Merry v. Niekalls, Eobinson v. Weeks, 56 Me. 102. Se, l! E. 7 Ch. 733'. And see (1894), Petty v. Eousseau, 94 N. C. 355. Mayd v. Field, 3 Ch. 589. § 1014 IITFAIfOY. 1178 chased of the minor, trover will not lie against Mm." And it is held, on the ground of an executed agency, the money belongs ing to an infant soldier and received from him by his brother, ■with authority to use it for the support of their needy parents, and so used by the brother, cannot be recovered by the infant upon reaching majority.'^ But, in general, an infant soldier's gift of his bounty and pay, even to his own father, is treated as void- able and revocable.^^ § 1014. Trading and Partnership Contracts. The rule is a general one that an infant cannot trade, and conse- quently cannot bind himself by any contract having relation to trade. " We know, by constant experience," says Mr. Smith, " that infants do, in fact, trade, and trade sometimes very exten- sively. However, there exists a conclusive presumption of law that no infant under the age of twenty-one has discretion enough for that purpose.'"* In Dilh v. Keighley, the infant was a glazier, and the person who sued him sought to make out that the goods furnished were in the nature of necessaries, to enable the infant to earn a livelihood ; but this plea did not avail.'* And an infant, rescinding a trading contract with another, was al- lowed to recover back, in an action for money had and received, a sum which he had paid towards the purchase of a share in the defendant's trade, if without consideration and he had actually derived no benefit or profit from the business.'^ So, too, as an infant cannot trade, he cannot become a bankrupt, and a fiat against him is void." Yet, even in trading contracts, it must not be forgotten that the current of modem decisions is to make the transaction of an infant voidable and not void. The English case of Goode v. Harrison is exactly in point; where a person was held liable for 70. Carr v. Clough, 6 Fost. 280; M. M. Sanders & Son v. Schilling, Eiley v. Mallory, 33 Conn. 201. 123 La. lOOff, 49 So. 689; Crew-Leviek 71. Welch V. Welch, 103 Mass. 562. Co. v. Hull, 125 Md. 6, 93 A. 208; 72. Holt V. Holt, 59 Me. 464; su- Smith, Contr. 278. See Whywall v.- pra, % 252. Champion, 2 Stra. 1083; Dilk ▼. 73. In Georgia it is held that where Keighley, 2 Esp. 480. an infant, with the permission of ihs 74. Dilk v. Keighley, 3 Esp. 480. parent, engages in business, his con- 75. Corpe v. Overton, 10 Bing. 252; tracts in relation thereto are binding. Holmes v. Blogg, 8 Taunt. 508. See Jemmerson v. Lawrence, 112 Ga. 340, next chapter. 37 S. E. 371; Wuller v. Chuse Gro- 76. Smith, Contr. 282, and cases eery Co., 241 111. 39'8, 89 N. E. 796; cited; Belton v. Hodges, 9 Bing. MS; 1179 ACTS VOID AND VOIDABLE. § 1014 goods supplied him as one of a partnership, on the ground that the contract was voidable, not void, and that the infant on be- •coming of age had substantially ratified his former act. " It is clear," says Justice Bayley, " that an infant may be in partner- ship. It is true that he is not liable for contracts entered into during his infancy; but still he may be a partner. If he is, in point of fact, a partner during his infancy, he may, when he comes of age, elect whether he will continue that partnership or not. If he continue the partnership, he will then be liable as a partner.''' Nor is another principle to be lost sight of in trading ■contracts ; namely, that fraudulent representations and acts, though made by an infant, may sometimes make his contract binding upon him, or at least afford a means of holding him answerable for the transaction ; but of this hereafter. In this country, it is likewise admitted that, in point of fact, infants do sometimes trade ;'° but that, nevertheless, their trading contracts do not absolutely bind them, being voidable at their option and not absolutely void;'* and statutes sometimes permit such trading.*" Aside from his affirmation on reaching majority, however, an infant partner is not liable individually for the firm debts beyond what he put into the business.*^ An infant's partner- ship agreement, too, is not void, but voidable.*^ He is not liable Eex V. Wilson, 5 Q. B. D. 28; Jones cupation ooeupying the minor's time V. Jones, 18 Ch. D. 109. And see for Hvelihood or profit, and hence the Winchester v. Thayer, 129' Mass. 129. purchase of land, while engaged as a 77. 5 B. & Aid. 147. See Smith, farm laborer, was not within the Contr. 383. statute. Beickler v. Guenther, 121 la. 78. Whitney v. Dutch, 15 Mass. 457; 419-, 96 N. W. 985; White v. Sikes, Houston V. Cooper, Penning. 865; 129 Ga. 508, 59 8. E. 228. Kitchen v. Lee, 11 Paige, 107 ; Beller Under a similar Georgia statute a V. Marchant, 30 la. 350. An infant single transaction in the sale of land partner sued for goods soM fhe firm is not engaging ia business within may plead infancy. Folds v. Allardt, its meaning. White v. Sikes, 129 Ga. 35 Minn. 488. 508, 59 S. E. 228. 79. Mason y. Wright, 13 Met. 306; 81. Bush v. Linthicum, 59 Md. 344. Kinnen v. Maxwell, 66 N. C. 45. But the firm may be dissolved by pro- 80. Beickler v. Guenther, 121 la. ceedings in equity, and in such bill the 419 96 N. W. 895. Under the Iowa infant is not liable for costs. lb. statute providing that a minor who 82. Latrobe v. Dietrich, 114 Md. 8, "engages in business" as an adult 78 A. 983; Osbum v. Farr, 42 Mich, in such fashion that the other party 134, 3 N. W. 29'9; Jaqnes v. Sax, 39 has reason to believe him capable of la. 367; Dunton v. Brown, 31 Mich, contracting he cannot disaffirm, the 182. That the minor had an interest quoted expression should be construed in profits, but had not put in capital, as signifying an employment of oc- does not operate to discharge him § 1014 INFANCY. 1180 for the debts of a partnersliip of wliiclx he is a member.'* An infant may become a general partner in a limited partnership ; and in such a case an adult special partner cannot set up the plea of such infancy in disclaimer of his own liability.'* Nor, as it would appear, can any adult partner with an infant shield him- self by any such plea from the firm's engagements ; but the true situation is rather that the minor may set up his own infancy, to release himself from liability on contracts of purchase whereby assets have been obtained, and thus throw the whole liability upon the adult members of the firm ; at the same time that the law pre- sumes his liability in the concern and treats him as responsible until his plea of infancy is asserted.'^ In such arrangements, however, while the infant is protected, on the one hand, he is not on the other permitted to derive undue advantages from his disability. Thus, it is held that one engaged in trade cannot by his own act make children of tender years his partners in business ; though he may, if indebted to them, prefer them in assigning for the benefit of his creditors, wherever the law permits a preference.'* Again, an infant partner is not bound by an assignment of partnership assets executed by his adult co-partner." He may by his assertion break up the partnership. But as to firm assets obtained by any such firm contract, these should in justice be devoted to satisfying the liabilities incurred in procuring them, and the infant is not al- lowed to retain the partnership property nor to assert title to any from liability. Jaqnes v. Sax, 39 la. to such debts. Hill v. BeU, 111 Mo. 367. See, as to pleadings, Kine v. 35, 19 S. W. 959. Barbour, 70 Ind. 35. An infant cannot, as against his co- 83. The fact that a partner was a partners, insist that in taking the minor at the time a contract with the partnership's accounts he shall be partnership was made cannot be as- credited with profits and not debited serted as a defence to an action of with losses, and as against the credit- replevin, based on such contract, where ors of the firm he has no higher rights no personal liability is claimed and to the firm property than the adult there is no showing that the minor partner. His only right is immunity has ever elected to disaffirm. Richards from personal liability. Elm City, V. Hellen, 153 la. 66, 133 N. W. 393; etc., Co. v. Haupt, 50 Pa. Super. 489. Crew-Levick Co. v. HuU, 125 Md. 6, 84. Continental Bank v. Strauss, 93 A. 308. _ 137 N. Y. 148. It has been held that an infant's 85. Continental Bank v. Strauss, 137 right to disafSrm his partnership con- N. Y. 148 ; Pelletier v. Couture, 148 tract is limited to a right to avoid Mass. 269. its debts, and that he cannot pre- 86. Baer v. Books, 50 Fed. 898. vent the subjection of its property 87. Foot v. Graham, 68 Miss. 529. 1181 ACTS VOID AND VOIDABLE. § 1015 portion of it, until the finn creditors are satisfied.*' He is thus likely to lose what he has put into the concern, if the firm prove insolvent, at the same time that he is not individually liable. On reaching majority an infant may by his acts keep an undissolved partnership continuing and by his own acts and conduct commit himself fully to outstanding obligations.'" In South Carolina it was once expressly decided that a person's express or implied ratifi- cation of the partnership upon reaching majority made him liable for a debt of the firm contracted during his infancy, although he was ignorant of the existence of the debt at the time of such ratifi- cation, and had, on being informed of it, refused to pay for it."" For the principle thus indicated is, that to affirm a partnership con- tract on reaching majority, and continuing to receive its benefits, and to induce the confidence of others, is to affirm it with its usual inseparable incidents. Certainly, the infant member of a firm should not be permitted to derive undue advantage over his partner.*^ § 1015. Void and Voidable Acts Contrasted ; When May Void- able Acts Be Affirmed or Disaffirmed. What, then, is the difference between the void and the voidable contracts of an infant ? Simply this : that the void contract is a mere nullity, of which any one can take advantage, and which is, in legal estimation, incapable of being ratified; while a voidable contract becomes at the option of the infant, though not otherwise, binding upon himself and all concerned with him.®^ Acts or cir- cumstances, then, which amount to a legal ratification, serve to make the voidable contract of an infant completely binding and perpetually effectual ; and this period of ratification is usually to be referred to the date when the disability of infancy ceases, and he becomes of full age, — though not always. What amounts to a legal ratification, under such circumstances, we shall show in a subsequent chapter. On the other hand, acts or circumstances 88. Pelletier v. Couture, 148 Mass. Mieh. 304, where an infant refused, 209 ; Bush v. Linthicum, supra. on majority, after the goods had been 89. Salinas v. Bennett, 33 8. C. disposed of and the partnership 2g5_ closed, to pay the partnership note, 90. Miller v. Sims, 2 Hill (S. C), though recognizing the late partner- 479 ship in some other respects. 91. See Kitchen v. Lee, 11 Paige, 92. See Met. Contr. 41; Story, Eq. 107 ; Dunton v. Brown, 31 Mieh. 182. Juris., § 241. But see Minock v. Shortridge, 21 § 1015 INFANCY. 1182" "which, at the proper time amount to disaffirmance will render the infant's voidahle contract of no effect. An infant's voidahle conveyance of land, which is a solemn instrument, and perhaps his deeds generally, cannot be avoided or confirmed during his minority.^' But as to many other trans- actions it is different, particularly where the contract relates to personal property, or is an unexecuted one, to perform services, for instance, and relates to the minor's person; so one may at any time during minority put an end to a continuing leae^.** And' the American cases seem to establish clearly the doctrine that an infant's sale or exchange or purchase of personal property, or con- tract for such sale or exchange or purchase, may be rescinded by him at any time during minority ; and when the transaction is thus avoided, the title to the property revests in the infant.®" This distinction appears to be recognized out of regard to the infant's benefit; since land might be recovered after long lapse of time upon difiturbing the possessor's title, while personal property would often be utterly lost if one could not trace out and recover it until he became of age. Furthermore it is easier thus to make restitution to the other party and place things in statu quo. To repudiate one's executed contract while yet an infant, so as to gain an unfair advantage, is not usually permitted f but the court re- quires his decision to be postponed to mature age, or otherwise attempts justice by requiring such restitution as he is able to make.*' An infant's void conveyance he may have set aside at any time during infancy.*' 93. Zoueh v. Parsons, 3 Burr. 1794; Building Association v. Herman, 33 McCormie v. Leggett, 8 Jones, 435; Md. 128; Eiley v. Mallory, 33 Conn. Bool V. Mix, 17 "Wend. 119 ; Emmons 201 ; Briggs v. McCabe, 27 Ind. 327 ; V. Murray, 16 N". H. 385; Cummings Hoyt v. Wilkinson, 57 Vt. 404; Me- V. Po"weIl, 8 Tex. 80; Sims v. Ever- Carthy v. Henderson, 138 Mass. 310. hardt, 102 U. S. Supr. 300; Phillips An infant's contract for purchasing V. Green, 3 A. K. Marsh. 7 ; Til- stock may be avoided or go unfulfilled linghast v. Holbrook, 7 E. I. 230; during minority. Indianapolis Chair Welch V. Bunce, 83 Ind. 382. So his Co. v. "Wilcox, 59 Ind. 429. So his chattel mortgage cannot be made contract to marry, or to perform la- binding to his prejudice by any act bor for a specified time, as seen in of affirmance during minority. Corey chapters 3, 5, post. V. Burton, 32 Mich. 30. 96. Dunton v. Brown, 31 Mich. 182. 94. Gregory v. Lee (1895, Conn). And see § 408. 95. Grace v. Hale, 2 Humph. 27; 97. See ch. 5. Shipman v. Horton, 17 Conn. 481; 98. SwafEord v. Pergnson, 3 Lea, Kitchen v. Lee, 11 Paige, 107; Willis 292. A statute provision is sometimes v. Twombly, 13 Mass. 204; Carr. v. found as to disaffirmance during mi- Clough, 6 Post. 280; Monumental nority. Murphy v. Johnson, 4'5 la. 57.. H8^ ACTS BINDING. § 1017. CHAPTEK III. ACTS BINDING UPON THE INFANT. Bbotion 1016. General Principle of Binding Acts and Contracts. 1017. Contracts for Necessaries; What Are Such for Infants. 1018. Illustrations. 1019. Contracts for Necessaries; Same Subject. 1020. Money Advanced for Necessaries; Infant's Deed, Note, &c.; Equity Bules. 1021. Illustrations. 1022. Binding Contracts as to Marriage Belation; Promise to Marry Contrasted. 1023. Acts Which Do Not Touch Infant's Interest; Where Trustee, Officer, &c. 1024. Infant Members of Corporations. 1025. Acts Which the Law Would Have Compelled. 1026. Contracts Binding Because of Statute; Enlistment; Indenture. 1027. Infant's Recognizance for Appearance on Criminal Charge. 1028. Whether Infant's Contract for Service Binds Him. § 1016. General Principle of Binding Acts and Contracts. We have seen that the general acts and contracts of infants are either void or voidable, and that the tendency at this day is to treat them as voidable only. But keeping in view the principle that an infant's beneficial interests are to be judicially protected, we shall find that there are some acts and contracts which he ought to be able for his own good to perform and make ; some acts and contracta of which it may be said that the privilege of standing upon a clear footing is worth more to him than the privilege of repudiation. Some such acts and contracts there are, recognized as exceptions to the general rule ; these are neither void nor voidable, but are obligatory from the outset, and thus neither require nor admit of ratification on the infant's part.^' Again, there are acts and contracts which public policy makes obligatory. § 1017. Contracts for Necessaries; What Are Such for Infants. The most important of these binding contracts are those for necessaries; which in fact are so important that they are often mentioned as the only exception to the rule of void and voidable contracts. The general signification of the word " necessaries " has already been discussed with reference to married women ; 99. See Met. Contr. 64; Smith, Contr. et seg. 268. § 1017 INFANCY. 1184 but it is readily perceived that what are necessaries for a wife may not be equally necessaries for a child, and what are neces- saries for young children may not be equally necessaries for those who have nearly reached majority. The leading principles of the doctrine of necessaries being made clear, and a rule of l^al classification judicially announced, any man of ordinary intelli- gence knows how to apply it ; and yet juries will not and cannot al- ways agree in their conclusions on this point, every one having some preconceived notions of his own on topics so constantly oc- curring in our every-day life, and to so great an extent involving individual tastes and preferences. Plainly, it is wrong to prevent an infant from attaining objects not only not detrimental, but of the utmost advantage, to him ; " since," as it has been observed, " otherwise he might be unable to obtain food, clothes, or educa- cation, though certain to possess at no very distant period the means of amply paying for them all.'" Food, lodging, clothes, medical attendance, and education, to use concise words, constitute the five leading elements in the doctrine of the infant's necessaries. But, to apply a practical legal test, we must construe these five words in a very liberal sense, and somewhat according to the social position, fortune, prospects, age, circumstances, and general situation of the infant himself. " It is well established by the decisions," says one writer, " that under the denomination necessaries fall not only the food, clothes, and lodging necessary to the actual support of life, but likewise means of education suitable to the infant's de- gree; and all those accommodations, conveniences, and even mat- ters of taste, which the usages of society for the time being render proper and conformable to a person in the rank in which the in- fant moves."^ Says another: "The word necessaries is a rela- 1, Smith, Contr. 369. An infant 360, 170 P. 752; MeConnell v. Me- father may be liable for the neees- Connell, 75 N. H. 385, 74 A. 875. saries of his children. MeConnell v. The word "necessaries" is a rela- McConnell, 75 N. H. 385, 74 A. 875. tive term, except when applied to 2. Smoot V. Eyan (Ala.), 65 So. such things as are obviously requisite 828; Gannon v. Manning, 43 App. for the maintenance of existence, and D. C. 306; International Text-Book depends on the social position and Co. V. Doran, 80 Conn. 307, 68 A. situation in life of the infant, as well 255; Slusher v. Weller, 151 Ky. 203, as on his own fortune, and that of 151 S. W. 684; Cain v. Garner, 169 his parents. International Text-Book Ky. 633, 185 8. W. 133; Angel v. Co. v. Connelly, 206 N. T. 188 99 N. McLellan, 16 Mass. 28, 8 Am. Dec. E. 722 ; Frank Spangler Co. v. Hanpt, 118; Stanhope v. Shambow, 54 Mont. 53 Pa. Super. Ct. 545. 1185 ACTS BINDING. § 1017 tive term, and not confined to such things as are positively re- quired for mere persqnal support."* The language of an Ameri- can judge is this : " It would be difficult to lay down any general rule upon this subject, and to say what would or would not be necessaries. It is a flexible, and not an absolute term."* Dental services are usually necessaries.^ Articles of mere ornament are not necessaries. The true rule is taken to be that all such articles as are purely ornamental are not necessary, and are to be rejected, because they cannot be requisite for any one; and for such matters therefore an infant cannot be made responsible. But if they were not of this de- scription, then the question arises whether they were bought for the necessary use of the party, in order to support himself prop- erly in the degree, state, and station of life in which he moved ; if they were, for such articles the infant may be made responsible.' The result of the cases on both sides of the Atlantic seems to be that unless the articles are, both as to quality and quantity, such as must be necessaries to any one, the burden of proof lies on the plaintiff to show such a condition of life of the defendant as might raise to the rank of necessaries things which would otherwise be considered luxuries and superfluous.^ A pair of solitaires (or shirt-fasteners), worth £25, are not, it would appear, necessaries for any infant.* But it seems that pres- ents to a bride, when she becomes the defendant's wife, may be A telegram by an infant to Ms S. E. 243, 110 Am. St. Rep. 777; parents for money when he was des- Smith, Contr. 269. titute has been held to be necessaries, 3. Met. Contr. 69. And see Peters obliging the infant, in order to sue v. Fleming, 6 M. & W. 42. for statutory penalties for negligent 4. Breed v. Judd, 1 Gray, 458, per transmission of the message, to com- Thomas, J. ply with the conditions of the con- 5. McLean v. Jaekson, 12 Ga. App. contract. Western Union Telegraph 51, 76 S. E. 792 Co. V. Greer, 115 Tenn. 368, 89 S. W. 6. Per Parke, B., Peters v. Flem- 327, 1 L. E. A. (N. S.) 525; Gayle ing, 6 M. & W. 42. V. Hayes' Adm'r, 79 Va. 542; Wal- 7. Smith, Contr, 272, 5th Am. ed., lace V. Leroy, 57 W. Va. 263, 50 S. E. Eawle's h., and cases cited; Harrison 843 110 Am. St. E. 777. v. Fane, 1 Man. & Gr. 550; Wharton Articles purchased by an infant in v. Mackenzie, 5 Q. B. 606; Eundel v. carrying on a business, and services Keeler, 7 Watts, 239; Bent v. Man- rendered in connection therewith are ning, 10 Vt. 225; Merriam v. Cun- not necessaries, though the infant de- ningham, 11 Cush. 40. rives his living from the business. 8. Eyder v. Wombwell, L. B. 4 Walaee v. Leroy, 57 W. Va. 263, 50 Exch. 32. As to a watch and chain, see Welch v. Olmstead, 90 Mich. 492. 75 § 1017 INFANCY. 1186 necessaries.' Betting-books are not an infant's necessaries.^" Nor tobacco, though for a minor soldier.^^ Nor money paid to relieve an infant from draft for military duty.^^ Horses, saddles, har- ness, and carriages may be necessaries under some circumstances, but not ordinarily; and this is the better doctrine, English and American.^' Wedding garments for an infant who marries are, within reasonable limits, necessaries." But not the treats of an undergraduate ait college.^' Nor, in Arkansas, as it appears, kid gloves, cologne, silk cravats, and walking-canes." The uniform of an officer's servant is adjudged a necessary; but not cockades for his company.^' An insurance contract is not a necessary.^* But a solicitor's bill for preparing a marriage settlement may be.*' The following have been held not necessaries : motorcycle,^" bicy- cle,^* buggy,^^ janitor's services for building owned by the in- fant,^^ articles furnished to an infant for use in business as a common carrier by means of automobiles.^* Those who incline to pursue the subject still further will find some interesting decisions as to balls, seranades, suits of satin and velvet, and doubtless of fustian, among the ancient cases which have survived the fashions they describe."" 9. Genner v. Walker, 19 Law Times H. 345._ See Harrison v. Fane, 1 (N. S.), SffS; 3 Am. Law Eev. 590. Man. &' Gr. 550; Davis v. Caldwell, 10. n. 13 Gush. 512; Bent v. Manning, 10 11. Bryant \. Richardson, L. E. 3 Vt. 225; Stanton v. Wilson, 3 Day, Ex. 93, n. 37; Glover v. Ott, 1 McCord, 573; 12. Dorrell v. Hastings, 28 Ind. Eundel v. Keeler, 7 Watts, 339. 478. 19. Helps v. Clayton, 17 C. B. (N. 13. Harrison v. Fane, 1 Man. & Gr. S.) 553. 550; Grace v. Hale, 2 Humph. 67; 20. Raymond v. General Motorcgr- Aaron v. Harley, 6 Eieh. 26 ; Merriam cle Co., 230 Mass. 54, 119 N. E. 359. V. Cunningham, 11 Cush. 40 ; Beeler v. 21. Eice v. Butler, 49' N. Y. 8. 494, Young, 1 Bibb, 519; Owens v. Walker, 25 App. Div. 388 (for a domestic re- 2 Strobh. Eq. 289. siding in the house of her employer). 14. Sams v. Stockton, 14 B. Monr. 22. Heffington v. Jackson, 43 Tex. 232. Civ. 560, 96 S. W. 108 (for one not 15. Wharton v. Mackenzie, 5 Q. B. needing it to ride to and from school 606; Brooker v. Seott, 11 M. & W. 67. or business). IG. Lefils V. Sugg, 15 Ark. 137. 23. Covault v. Nevitt, 157 Wis. 113. 17. Hands v. Slaney, 8 T. E. 578; 146 N. W. 1115 (contract for janitor's Coates V. Wilson, 5 Esp. 52. services). 18. Simpson v. Prudential Ins. Co., 24. La Eose v. Nichols (N. J.), 184 Mass. 348, 68 N. E. 673, 63 L. 103 A. 390. E. A. 741, 100 Am. St. E. 560; New 25. See eases cited Met. Contr. 69, Hampshire Ins. Co. v. Noyea, 32 N. 70; Cro. Eliz. 583. ^187 ACTS BINDING. § 1018 § 1018. Illustrations. it IS usual to leave the question of necessaries in each case to the jury, without very positive directions. But the dividing line be- tween court and jury is not in this respect clearly marked, as the latest cases teach us. Ryder v. Wombwell lays it down that the question whetiier articles are necessaries is one of fact, but, like other questions of fact, should not be left to the jury unless there is evidence on which they could reasonably find that they were."" The immediate object of this decision was to set aside a verdict deemed improper ; as to the fi,tness of such a rule in its broader application there is considerable doubt." But it has frequently been said, that in a very clear case a judge would be warranted in directing a jury authoritatively that some articles, like diamonds and race-horses, would not be necessaries for any minor."* The propriety of classing education as among the necessaries of an infant rests rather upon respectable dicta than precedents. Lord Coke includes among the necessaries for which an infant may bind himself by contract, "" good teaching and instruction, whereby he may profit himself afterwards ;" and the doctrine within strict limits is undoubtedly correct."^ In Vermont and New York it is decided that a collegiate education is not to be ranked among those necessaries for which an infant can render himself abso- lutely liable.*" But the court seems to make it but a prima facie rule, and to admit that extraneous circumstances might be shown to make even this a necessary; while a good common-school edu- cation is strongly pronounced to be such. And the judge adds: " I would not be understood as making any allusion to profes- sional studies, or to the education and training which is requisite 26. Eyder v. Wombwell, L. E. 4 the position of the defendant, the Exch. 32. infant." Genner v. Walker, 19 Law 27. Of this rule, says Coekbum, C. Times (N. S.) 398. And see John- J., of the Queen's Bench, still later: stone v. Marks, 19 Q. B. D. 509. "I really cannot understand it, unless 28. See Harrison v. Fane, Davis v. it means that it is to be a question Caldwell, and other eases, supra; of law for the judge to determine Mohney v. Evans, 51 Pa. St. 80. whether the articles disputed are, or 29. Co. Litt. 172; 1 Sid. 112; Met. are not, necessaries. If that is to be Contr. 69, n.; Smith, Contr. 269, 273. taken to be law, of course I must act 30. Turner v. Gaither, 83 N. C. upon it; but I should certainly have 357, 35 Am. Eep. 574; International preferred the law as it was previously Text-Book Co. v. Connelly, 206 N. Y.. understood to be, that it was for the 188, 99 N. E. 723, 42 L. E. A. (N. 8.) .iury to say what articles were rea- 1115; Middlebury College v. Chandler,, Eonably necessary with reference to 16 Vt. 683. § 1018 iNFAisrcY. 1188 to the knowledge and practice of mechanic arts. These partake of the nature of apprenticeships, and stand on peculiar grounds of reason and policy. I speak only of the regular and full course of collegiate study.'"^ An infant is not liable, at common law, for the expense of re- pairing a dwelling-house on a contract made by him or his guar- dian or parent for that purpose ; although such repairs were neces- eary for the prevention of immediate and serious injury to the house.^^ Thus a course in pharmacy ;^^ a course in stenography,'* and a course in steam engineering^^ have all been held not neces- saries unless special circumstances make them so.^* So materials or services furnished to an infant, for building on his ovsoi land are not necessaries.^'' Nor is a dwelling-house built for him a necessary.*' A mechanic's lien is not to be thus acquired.*' The law is extremely reluctant to permit an infant's real estate to be encumbered by others in any possible way so as to exclude his disaffirmance. So it is ruled that the services and expenses of counsel in a suit brought to protect the infant's title to his real estate cannot for similar reasons be charged against the infant on his own con- tract.*" But the doctrine that legal expenses cannot be charged as necessaries for an infant appears not to prevail in Connecticut ; and the more liberal rule is asserted, that in cases where, under peculiar circumstances, a civil suit is the only means by which an infant can procure the absolute necessaries which he requires, 31. Per Eoyee, J., li. A board bill fant, and that the parents or guardian contracted to enable attendance at of such infant refused to furnish such school is a necessary. Kilgore v. Eich, alleged necessary. Mauldin v. South- 83 Me. 305. To the same effect see em Shorthand Business tjniversity, International, etc., Co. v. Connelly, 126 Ga. 681, 55 S. E. 923. 206 N, Y. 188, 99 N. E. 722, 42 L. R. 35. International Text-Book Co. v. A. (N. S.) 1115. Connelly, 206 N. T. 188, 99 N. E. 722 32. Tupper V.Caldwell, 12 Met. 559; (affg. judg., 125 N. T. S. 1125, 140 West T. Gregg, 1 Grant, 53; Wallis App. Div. 939). V. Bardwell, 126 Mass. 366; Price v. 36. International, etc., Co. v. Con- Sanders, 60 Ind. 310; Phillips v. nelly, 206 K. T. 188, 99 N. E. 722. Lloyd (1895), E. I. 42 L. E. A. (N. S.) 1115. 33. Wallin v. Highland, etc., Co., 37. Freeman v. Bridger, 4 Jones 127 la. 131, 102 N. W. 839. Law, 1. 34. In order to determine whether 38. Allen v. Lardner, 78 Hun, 603. a contract of an infant for a course 39. Bloomer v. Nolan, 36 Neb. 51. in stenography was a contract for 40. Phelps t. Worcester, 11 N. H. "necessaries," the evidence must 51. show the condition in life of the in- 1189 ACTS BINDING. § 1018 power cannot be denied him to make the necessary contracts for its commencement and prosecution; for it would be a reproach to the law to hold otherwise.*^ In this particular case the circum- stances justifying relief were very strong. Moreover, the English eases long ago established that money advanced to an infant to procure him liberation from arrest, where he was in execution or taken in custody on a debt for necessaries, could be recovered as necessaries.*^ Services of an attorney in defending the infant against a criminal complaint may likewise be recovered.** And we have already seen that legal expenses may sometimes be classed as necessaries for married women.** On the whole, it may be said that legal expenses on behalf of a minor may or may not be re- garded as a necessary for him, according to circumstances and the reasonableness of incurring them. If a liability exists to pay for legal services whenever necessary for the infant's personal protec- tion or that of his estate, the liability is limited, at all events to the actual value of those services, and not extended to whatever the infant may have agreed to pay.*" In Oklahoma it is held that attorney's services are necessaries when rendered in proceedings relating to the liberty or person of the minor are necessaries,*' while those rendered in litigation over property are not,*' while others hold the contrary, if the services are beneficial.** Still others hold that such services are unqualifiedly necessaries, whether rendered in behalf of the infant's personal or property rights.*" If the contract was for a contingent fee, the infant is liable for the amount of the fee in case of success, and not merely for the reasonable value of the services rendered."" In Massachu- setts, under peculiar statutory provisions, such services are held 41. Mnnson v. Washband, 31 Conn. Okla. 343, 129 P. 853 (attomeya 303. services) . 42. Clarke v. Leslie, 5 Esp. 28; 2 48. Sutton v. Heinzle, 84 Kan. 756, Eden 72. 115 P. 560, 34 L. E. A. (N. S.) 238 43.' Barker v. Hibbard, 54 N. H. (reh. den., 116 P. 614, 85 Kan. 332, 539; Askej v. Williams, 74 Tex. 294. 34 L. E. A. [N. S.] 239). 44. Supra p. 100. *3- Hickman v. McDonald, 164 la. 45. 68 Hu'n, 589 ; Searcy v. Hunter, 50, 145 N. W. 322 ; Slusher v. Weller, 81 Tex. 644. 151 Ky. 203, 151 S. W. 684; Crafts 46. Grissom v. Beidleman (Okla.), v. Carr, 24 E. I. 397, 53 A. 275, 60 129 Pac. 853, 44 L. E. A. (N. S.) L. E. A. 128, 96 Am. St. E. 721; ^jj Vance v. Calhoun (Ark.), 90 S. W. 47. Watts v. Houston (Okla.), 165 619. p 128- Marx v. Hefner (Okla.), 149 50. Hickman v. McDonald, 164 la. p 207 • Grissom v. Beidleman, 35 50, 145 N. W. 322. § 1019 INFANCY. 1190 not necessaries unless the attorney is employed by the minor's guardian.^^ And it would appear that the burden of proof is upon an attorney to show that the suit could be viewed in such a light as to entitle him to recover for his fees and disbursements/^ Generally, a guardian or next friend would assume the responsi- bility of employing counsel for advice or suits on an infant's behalf. A court of equity will enforce against an infant an agree- ment settling a suit made by his guardian, when it appears to have been made for the infant's benefit. °* The doctrine of necessaries is manifestly not to be extended to an infant's trading contracts, as we have already intimated. Thus the board of four horses for six months, the principal use of which was in the business of a hackman, is not within the class of necessaries for which an infant is liable, although the horses are occasionally used to carry his family out to ride.'* The board of an infant, again, is included among the necessaries for which he may pledge his credit.°° But here, too, we must keep within our principle. Thus, where an infant took a house to carry on the business of a barber, — the house containing five rooms, two on the ground floor, one of which he occupied as a shop, the other to reside in, and three above, which he underlet, — he was held not to be liable for the rent.°° An infant may contract for his necessary lodgings, but he cannot bind himself for more. Nor are farm implements, live stock, wagons,^^ and the like, to be deemed necessaries when purchased to carry on a farm ; inasmucl] as articles for .business or trade, whether agricultural, commercial, or mercantile, cannot be brought within the present rule. § 1019. Contracts for Necessaries; Same Subject. But the question in all such cases is one of mixed law and fact. And articles prima facie to be classed as luxuries, such as vdnes, fruits, and the use of a horse and carriage, might, under some circumstances, become necessaries; as if, for instance, medically prescribed, for an infant's health; though this salutary rule ia 51. Mclsaae v. Adams, 190 Mass. to secure the estate to the iBfant. 117, 76 N. E. 654 (where the attorney Epperson v. Nugent, 57 Miss. 45. volunteered his services at the sug- 54. Merriam v. Cunningham, 11 gestion of the infant's relatives). Gush. 40; supra, § 1014. But see Hall 52. Thrall v. Wright, 38 Vt. 494. v. Butterfleld, 59 N. H. 354. 53. In re Livingston, 34 N. T. 555. 55. Bradley v. Pratt, 23 Vt. 378. And so where there is no guardian, 5G. Lowe v. Griffith, 1 Scott, 458. and the counsel's services contributed 57. Paul v. Smith, 41 Mo. App. 275. 1191 ACTS BIITDING. § 1019 not designed to support a quibble."* The infant's clothes may be fine or coarse, according to his rank; his education may vary according to the station he is to fill, and the extent of his prob- able means when of age; and as to servants, attendance, and the like, this v^ill depend on his social position."" Stock pur- chased for a farm, too, may under some special circumstances, though not usually, be treated as necessaries."" And so with plan- tation supplies, where a married infant is intrusted by law with the estate.®"- And upon such issues, quantity may be as much for the consideration of the jury as quality."^ Primarily, the parent or guardian who supplies the necessaires is the judge of what quantity and quality are suitable for the infant.*^ And if the natural protector with whom the child lives does his legal duty as best he may according to his means, the fact that he is poor and unable to pay for what was furnished to the child, will not render the child's estate liable.®* If one furnish an infant with necessaries, and also other articles not necessary under his circumstances and condition, he is not on that account precluded from recovering for the necessaries ; though, as to the balance of his claim, he may be without a remedy.®" An infant is not liable for necessaries when he lives under the roof of his father, who provides everything which seems proper. N'ot only is there here no implied agreement on the infant's part to pay for such support, but if one were expressly made by him it would be in derogation of parental duty. And so when he is supplied by a guardian or widowed mother, or any- one assuming the place of parent. The parent or the legal pro- tector having the means and being willing to furnish all that is actually necessary, the infant can make no binding contract for 58. See Wharton v. Mackenzie, 5 G2. Burghart v. Angerstein, 6 Car. Q. B. 606. & P- 690. 59. See AWerson, B., Chappie v. 63. Thus, a journey for the child's Cooper 13 M. & W. 258. Gold filling recreation, without the parent's or and dentist's work upon his teeth guardian's approval, cannot generally should be classed among the neces- be deemed a necessary. McKanna v. saries of a minor of good means and Merry, 61 111. 177. social position. Strong v. Foote, 42 64. Hoyt v. Casey, 114 Mass. 397. Conn 203. ^®- Turberville v. Whitehouse, 12 60. Mohaey v. Evans, 51 Pa. St. 80. Price, 692 ; Bent v. Manning, 10 Vt. Gl Chapman v. Hughes, 61 Miss. 225. And see Johnson v. Lines, 6 W. -39 ' & S. 80; Wilhelm v. Hardman, 13 Md. 140. § 1019 INFANCY. 1192 any article witJiout such protector's consent Nor can the infant be charged for wliat such protector ordered on his own credit. Prima facie, where the child resides at home, proper maintenance is furnished him: and the tradesman who furnishes goods to an infant or the professional person rendering services does so at his peril ; it is incumbent upon him to show the necessity of his supply or service/^ But an infant, when absent from home, and not under the care of his parent or guardian, is usually liable for his own necessaries,*' An emancipated infant may agree with his employer in such matters.** And the law will imply a promise, on the part of an infant having no legal protector, to make pay- ment ; *' though not for any fixed amount, but only a reasonable price,'"* and certainly not for what were not necessaries at all.'^ There is no inflexible rule of law, however, which makes it incumbent on the tradesman who supplies an infant to inquire as to his situation and resources before giving him credit for necessaries; though it would be prudent always for him to do so.'* And the parent or guardian may sanction by words or conduct the child's purchase, so as to make it obligatory. As in a case where the infant daughter, living with her mother at a hotel, drove to the plaintiff's store in a carriage, accompanied by her mother, who 6G. Mauldin v. Southern, etc., Uni- Kraker v. Byrum, 13 Rich. 163; Til- versity, 126 6a. 681, 55 S. E. 922. ton v. EusaeU, 11 Ala. 497; Hussey It is otherwise where the child has v. Eoundtree, Bushee Law, 110. Per- been emancipated. Robinson v. Hath- haps for a return of such necessaries away, 150 Ind. 679, 50 N. E. 883; as the minor has not consumed the Angel T. McLellan, 16 Mass. 28, 8 tradesman may sue. Nichol v. Steger, Am. D. 118; Harris v. Crawley, 17 2 Tenn. 328. Bet. Leg. N. 303, 126 N. W. 481; 67. Angel v. McLellan, 16 Mass. International Text-Book Co. v. Con- 38; Hunt v. Thompson, 3 Scam. 179. neUy, 206 N. Y. 188, 99 N. E. 722, 68. Genereux t. Sibley (1895, R. I.). 43 L. E. A. (N. S.) 1115; Coler v. 69. Hyman v. Cain, 3 Jones Law, Cllahan, 174 N. T. S. 504; Potter HI ; Epperson v. Nugent, 57 Miss. 45. T. Thomas, 164 N. Y. S. 923; Inter- 70. Parson v. Keys, 43 Tex. 557. national, etc., Co. v. Connelly, 206 71. Genereux v. Sibley, supra; N. Y. 88, 99 N. E. 722 ; Bainbridge Morse v. Ely, 154 Mass. 458. An in- T. Pickering, 2 Blacks. 1325; Story v. fant thrown upon his own support, Pery, 4 Car. & P. 526; Angel v. and without a legal protector, ought, McLeUan, 16 Mass. 28; Wailing v. in case of medical expenses incurred. Toll, 9 Johns. 146; Johnson v. Lines, through another's wrongful act re- 6 W. & S. 80; Kline v. L'Amoreux, cover such damages for himself by 2 Paige, 419 ; Perrin v. Wilson, 10 way of reimbursement. See Railroad Mo. 451 ; Freeman v. Bridger, 4 Jones Company v. Maddux, 134 Ind. 571 ; Law, 1 ; Smith v. Young, 2 Dev. & §§ 262, 427-430. Bat. 26 ; Connolly v. Hull, 3 McCord, 72. Brayshaw v. Eaton, 7 Scott, 6; Ebod v. Myers, 2 Head, 33; 183. 1193 ACTS BINDING. § 1019 waited in the carriage wHle her daughter purchased the giDods, eome of which she took home in the carriage, while others were delivered at the hotel; here it might be reasonably inferred, as the court decided, that the whole had com© under the mother's inspection, so as to make the infant liable for the purchase.''' The English cases seem to lay especial stress upon the question whether articles are or are not of themselves necessaries. And it is held, not only that an infant may enter into a contract for neces- saries for ready money, but that he may be bound by any reason- able contract for necessaries on a credit, though h« has an income of his own, and an allowance amply sufficient for his support.'* In South Carolina a contrary doctrine is maintained ; namely, that an infant who is regularly furnished with necessaries, or the means in cash of procuring them, by his parent or guardian, or from any other source, is prima facie not liable for necessaries furnished him on credit.'" This is likewise the rule in some other States.'* Claims against an infant for necessaries being perfectly valid at law, the creditor cannot sue in equity ; " but it is held that where a minor cannot legally contract a debt on the ground that his parent or guardian has properly supplied him, equity will compel him to return the furnished articles if he has them.'* And while it is true that an infant cannot bind himself when he has a parent or guardian who supplies his wants, he may be bound by the purchase of necessaries under the express or implied authority of his guardian.'* But not for anything absurd or improper in quantity or quality.'" And where credit is given to a parent or guardian, the infant's estate is not answerable.'* The rule as to necessaries in general is, that it is the province t.f the court to determine whether the articles sued for are within the class of necessaries, and, if so, it is the proper duty of the jury 78. Dalton y. Gibb, 5 Bing. (N. C.) saries sold to the defendant during IffS ; Atchison v. Bruff, 50 Barb. 381. minority, the burden is on the latter And see Strong v. Foote, 43 Conn. to show, by way of defence, that dur- 2Q3 ing minority his parent or guardian 74. Bnrghart v. Hall, 4 M. & W. supplied him. Parsons v. Keys, 43 727; Smith, Contr. 273. Tex. 557. 75. Eivers v. Gregg, 5 Eich. Eq. 77. Oliver v. McDuffie, 28 Ga. 522. 274. And see Mortara v. HaU, 6 78. Niehol v. Steger, 6 Lea, 393. £,. 4gg 79. Watson v. Hensel, 7 Watts, 344. 76. Nicholson v. Wilborn, 13 Ga. 80. Johnson v. Lines, 6 W. & S. 80. 467 ; Niehol v. Steger, 6 Lea, 393. In 81. Sinklear v. Emert, 18 111. 63 ; a suit to recover the price of neces- 148 N. T. Super. 152. § 1019 INPANCT. 1194 to pass Tipoii the questions of quantity, quality, and their adapta- tion to the condition and wants of the infant.^" But, as the reader is already apprised, this rule is neither stated nor applied with invariable precision in all cases. Generally, the question is one of fact for the jury; and the two principal circumstances are, whether the articles are suitable to the minor's estate and condition, and whether he is, or is not, without other means of supply.*^ An infant will be held to pay for necessaries what they are reasonably worth, but not what he may foolishly have agreed to pay for them.** Nor can the court be precluded, by the form of the contract, from inquiring into their real value.*^ By the better opinion it may be shown, when the infant is sued, not only that the articles were not of the kind called necessaries, but that the infant at the time they were furnished was sufBeiently provided with articles of that kind."* The creditor must plead and show the reasonableness of the price,*^ the fact that the articles are necessaries,** and that they are really needed, and that the articles, or the money therefor, were not supplied by others.*' The infant is not bound by an 82. Peters v. Fleming, 6 M. & W. 42; Harrison v. Fane, 1 Man. & Gr. 550; Phelps v. Worcester, 11 N. H. 51; Merriam v. Cunningham, 11 Gush. 40; Beeler v. Young, 1 Bibb, 519. 83. Per Shaw, C. J., Davis v. Cald- well, 12 Cnsh. 512. 84. Sims V. Gunter (Ala.), 78 So. 62; Appeal of Ennis (Conn.), 80 A. 772; Hickman v. McDonald, 164 la. 50, 145 N. W. 322 ; MeConneU v. Me- ConneU, 75 N. H. 3«5, 74 A. 875; Locke V. Smith, 41 N. H. 346; Plum- mer v. Northern Pac. Ey. Co., 38 Wash. 67, 167 P. 73. 85. See 10 Mod. 85; Met. Contr. 73; 2 Kent, Com. 240; Parsons v. Keys, 43 Tex. 5^7. An infant sued for the price of goods has not the burden of showing that they were not necessaries, but the plaintiff must show that they were. Wood v. Losey, 50 Mich. 475 86. Johnstone v. Marks, 19 Q. B. D. 509; Barnes v. Toye, 13 Q. B. D. 410. It is immaterial whether the plaintiff did or did not know of the existing supply. Tb. 87. In order that an infant's con- tract may be "fair" and "reason- able," it must not waste his estate, and must be provident and advan- tageous to him. Berglund v. Ameri- can Multigraph Sales Co. (Minn.), 160 N. W. 191; Gray v. Sands, 73 N. T. S. 323, 66 App. Div. 572; In- ternational, etc., v. Alberton, 30 Ohio Cir. Ct. E. 353. 88. Thus, where the defendant pleads infancy, he states a good de- fence, and the plaintiff must set up the fact of necessaries by replica- tion where that is required. Medders V. Eaxley, etc., Co., 17 6a. App. 730, 88 S. E. 407; International Text- Book Co. V. Connelly, 306 N. T. 188, 99 N. E. 73^ (affg. judg., 125 N. Y. S. 1135, 140 App. Div. 939); Marx v. Hefner (Okla.), 149' P. 207. 89. Brent v. Williams, 79 Miss. 355, 30 So. 713. But see Lynch v. John- sou, 109 Mich. 640, 67 N. W. 908. 1195 ACTS BINDING. § 1020 executory contract for necessaries.®" But usually the question as to whether the contract is for necessaries is for the jury." § 1020. Money Advanced for Necessaries; Infant's Deed, Note, &c. ; Equity Rules. An infant is liable to an action at the suit of a person advancing money to a third party to pay for necessaries furnished to the infant.*^ But it is thought to be otherwise as to money supplied directly to the infant, to be by him thus expended, notwithstanding the money be actually laid out for necessaries.®* The reason for this distinction is said to be that in the latter case the contract arises upon the lending, and that the law will not support contracts which are to depend for their validity upon a subsequent contin- gency.'* The same is true of a loan to enable the infant to pay a debt incurred for necessaries.®" The purpose for which the minor uses the money must be in fact necessaries.®' One writer admits that, according to some reports of a leading case, the court held that if the money were actually expended for necessaries the infant would be chargeable ; ®^ but adds that the weight of author- ity is, that the infant is not liable at law for money thus lent and appropriated.®* What this weight of authority may be is not ap- parent, but the analogies elsewhere noticed as to a wife are to be considered as in point. The equity rule is, that if money is lent to an infant to pay for necessaries, and it is so applied, the infant becomes liable in equity; for the lender stands in place of the 90. Valentines' School of Telegra- 79 P. 185, 114 Am. St. E. 847 (hold- phy, 123 Wis. 318, 99 N. W. 1043. ing that a loan for the purpose of en- 91. International Text-Book Co. v. abUng a minor to redeem where he Doran, 80 Conn. 307, 68 A. 255; was not bound to do so, and where Nielson v. International Textbook redemption was not necessary, was Co., 106 Mo. 104, 75 A. 330. not necessaries). 92. Price v. Sanders, 60 Ind. 310; 97. Ellis v. Ellis, 12 Mod. 197. Equitable Trust Co. of New York v. 98. Met. Contr. 72. The learned Moss 134 N. T. S. 533, 149 App. Div. writer quotes a dictum from 10 Mod. 615; 'swift V. Bennett, 10 Cush. 436; 67, to controvert that of 12 Mod. 197, Randall v. Sweet, 1 Den. 460. which last held that money might be 93. Maephers. Inf. 505, 506; Ellis sometimes properly charged upon the T Ellis 5 Mod. 368; 12 Mod. 197; infant. But the context only contem- Earle v. Peele, 1 Salk. 386; Clarke plates the "great difference between V. Leslie, 5 Esp. 28. lending an infant money to buy nec- 94. See Swift v. Bennett, 10 Cush. essaries, and actually seeing the money .„. so laid out." Besides, it is not clear 95 Price v. Sanders, 60 Ind. 310. which of the two is the better dictum, 96. Burton v. Anthony, 46 Ore. 47, § 1020 INFANCY. 1196 payee."* This is the New York doctrine, whether legal or equi- table.^ And other States assert the same rule." An innkeeper's lien on the baggage of his infant guest has been protected in our courts, notwithstanding the infant acted improperly and contrary to his guardian's wishes, so long as the innkeeper acted in good faith ; and this, even to the extent of protecting the innkeeper for money furnished the infant, which was expended for necessaries.* Circuity of action should not be favored at this late day, especially when the object is, after all, to enforce a moral obligation in small transactions. The old books say that an infant may bind himself by his deed to pay for necessaries.* Yet it has been considered clearly settled that he cannot do so by a bond in a penal sum ; since it cannot be to his advantage to become subject to a penalty.^ But on the ques- tion whether an infant is bound by a note not negotiable given for necessaries, there is an irreconcilable difference of opinion in the authorities ; though Story considers the weight of modem English and American authorities greatly in favor of holding promissory notes given or indorsed by an infant to be voidable only, and not void, and therefore capable of being ratified after the party comes of age.' The mischief of holding an infant's promissory note for necessaries to be worthless or even voidable is the same as in loans of money for the same purpose ; namely, that an infant is thereby allowed to get his supplies without paying for them. Equity in- fluence the later cases ; that somewhat novel and yet manifestly just principle gaining ground that one who receives advantages is liable on an implied contract to furnish a suitable recompense. Keeve and others state the law thus: that an infant is not bound by any express contract for necessaries to the extent of such contract, but is bound only on an implied contract to pay the amount of their value to him ; that when the instrument given by him as security for payment is such that, by the rules of law, the consideration cannot be inquired into, it is void and not merely voidable ; that whenever the instrument is such that the consideration may be inquired into, he is liable thereon for the true value of the articles 99. Marlow v. Pitfeild, 1 P. Wms. 4. Com. Dig. Infant. But see next S58. page. 1. Smith V. Oliphant, 3 Sandf . 306. 5. Ayliff v. Arehdale, Cro. ETiz. 930 ; And see Bandall v. Sweet, 1 Den. 460, Corps v. Overton, 10 Bing. 353 ; per Bronson, C. J. Smith, Contr. 381; Met. Contr. 75. 2. Kilgore v. Eich, 83 Me. 305. 6. Story, Prom. Notes, 6th ed., § 3. Watson v. Cross, 3 Dnv. 147. 78, and cases cited. And see 3 Kent, 1197 ACTS BINDING. § 1020 for which it was given/ This excellent statement could hardly be improved upon, except so far as equitable doctrine may prop- erly enlarge the expression; and, for a topic so much unsettled, is as well entitled to be called good law as anything else; and, what is more, it has justice in it. The doctrine has received sub- stantial encouragement in Massachusetts.* Even a bond for neces- saries has been deemed binding in a State where the statute allows its consideration to be impeached and a judgment fro tanto ren- dered for the amount actually due.* The same practical result seems to be reached in New Hampshire, and other States, so as further to give th© infant's indorser or surety a remedy against him ; " and the broad doctrine conforms to equitable procedure in other analogous cases. ^^ A deed of land or mortgage given by a Com., llth ed., 257; Bayley, Bills, ch. 2, pp. *5, 46, 5th ed. Askej v. Wil- liams, 74 Tex. 294. 7. Beeve, Dom. Eel. 229, 230; 2 Dane, Abr. 364, 365; Met. Contr. 75. 8. Stone v. Dennis, 13 Pick. 6, 7, per Shaw, C. J.; Earle v. Reed, 10 Met. 387. 9. Guthrie v. Morris, 22 Ark. 411. 10. MeCriUis v. How, 3 N. H. 348; Conn V. Coburn, 7 N. H. 368 ; Dubose V. Wheddon, 4 MeCord, 221; Haine v. Tarrant, 2 Hill (S. C), 400; Me- Minn v. Kichmonds, 6 Terg. 9. See, contra, Swasej v. Vanderheyden, 10 Johns. 33. A late Indiana case tends in the same direction. Here it is said an infant is not liable at law on his note or other contract whereby he obtains money to build a bam or work his farm, although the money be actually expended for necessaries; since the indebtedness for ne(Jessary for which he is liable must be created directly • therefor. But, in equity, the infant is liable for the money so obtained, where the creditor can show that it was actually expended for necessaries. Price V. Sanders, 60 Ind. 310. But a surety on an infant's note, given for necessaries, who has been compelled to pay it, cannot sue the infant dur- ing his infancy for reimbursement. Ayers v. Bums, 87 Ind. 245. 11. We have seen a similar rule ap- plied of inquiry into consideration in the case of a married woman's con- tract under equity and modern stat- utes. Supra, Part II„ ch. 11. An ac- count for necessaries was allowed in equity, with a lien on the infant's reversionary interest, in a recent Eng- lish case, although the minor's deed of sale of his reversionary interest, given during minority, as security, was declared not binding upon him. Martin v. Gale, 4 Ch. D. 628. A sim- ilar rule is observed in charging a married woman's separate estate. In a Vermont case this later rule re- ceived a striking illustration. An infant boarded in a country town for some twenty weeks at a reasonable price. The person to whom he was indebted owed his own adult son money, and for the convenience of the parties drew an order upon the infant, authorizing him to pay the amount of the board to his son; which order was duly received, and the infant agreed to pay it. Soon after, by consent of the parties, this order was surrendered, and the in- fant substituted in its place his prom- issory note. The note was negotiable, but never was negotiated; and tho holder, the adult son of the person furnishing board, brought a suit thereon. The evidence showed that § 1022 INFAJMCY. 1198 minor in consideration of necessaries furnished receives late favor.^^ § 1021. Illustrations. While stress was formerly laid upon the infant's contract for his necessaries, infants appear liable in various modem instances on the ground rather of an implied liability based upon the necessity of the situation, and because the infant derives a siubstantial benefit at another's cost. Thus, where the infant seeks to recover what his services are reasonably worth, the adult is permitted to set off the reasonable value of what the infant may have received from him in support or otherwise.^' Ajid it is held that one may recover for necessaries furnished to a minor, taken from an alms- house, and sfipported on the credit of property which was to be- come his on his father's death.^* But necessaries purely in futuro. or upon some executory contract of the infant, cannot charge him, for his liability only arises when the necessaries are furnished.^" § 1022. Binding Contracts as to Marriage Relation; Promise to Marry Contrasted. There are other contracts besides necessaries which are excepted from the general rule, and are made obligatory upon the infant; being neither void nor voidable. the defendant's board constituted the his perfect safety. All the cases and sole consideration of the note. It was all the elementary writers expressly held that the consideration of the hold that it is for the benefit of the note was open to inquiry, and that, infant that he should be able to con- upon the facts found, the defendant tract for necessaries; and we see no was liable to the plaintiff for the full reason why he may not be allowed to amount of the note ; and, as the court contract in the ordinary modes of con- also decided, with interest. Bradley tracting, so far as his perfect safety V. Pratt, 23 Vt. 378. Says the learned is maintained always." See Thing v. judge who gave the opinion in this Libbey, 16 Me. 55; Bay v. Tubbs, 50 case, after a full examination of the Vt. 688. conflicting authorities as to the in- 12. Searey v. Hunter, 81 Tex. 644. f ant 's liability on his promissory note But not beyond what may be truly for necessaries: "We may then, we classed as necessaries. Deeds and think, regard the question as still in mortgages are generally voidable at dubio, and justifying the court in least. See last chapter, treating it as stiU an open question. 13. Hall t. Butterfield, 59 N. H. And being so, we should desire to put 354, 358. But there is no set-off of it upon safe and consistent ground. what the minor was not bound to pay We are led, then, to inquire what is for. Wright v. McLarinan, 92 Ind. the true principle lying at the found- 103; § 236. ation of all these inquiries. We think 14. Trainer v. Trumbell, 141 Mass. it is, that the infant should be en- 527. abled to pledge his credit for neces- 15. Gregory v. Lee (1895), Conn, saries to any extent consistent with 1199 ACTS BINDING. § 1023 Thus contracts of marriage are binding, if executed: they can- not be avoided on the ground of infancy, as we have shown in another connection,^* except for the non-age barrier; " while on the other hand no such considerations of policy attach to an infant's promise to marry, and such promise is not binding/* So, too, the general rights and liabilities of a husband as to custody, mainte- nance, and the like, which are incidental to the marriage relation, ^PPlj) from reasons of policy, to infants as to adults.^® So is a contract for the burial of a spouse held beneficial and binding upon an infant."'* § 1023. Acts Which Do Not Touch Infant's Interest; Where Trustee, Officer, &c. The acts of an infant that do not touch his interest, but which take effect from an authority which he is by law trusted to exer- cise, are binding; as if an infant executor receives and acquits debts to the testator, or an infant officer of a corporation joins in corporate acts, or any other infant does the duties of an office which he may legally hold."^ And his conveyance of land which he held in trust for another, in accordance with the trust, is not to be disaffirmed by him on the ground of infancy; a principle which may extend sometimes to conveyances from a parent made to defraud creditors.^" This seems to arise from the consideration which the law pays to the rights of others besides the infant ; or, to put it differently, the doctrine may rest upon this fact, that the infant in such cases does not act as an infant. So the acts of the 16. Birmingham, etc., R. Co. V. Mat- 42; Rush v. Wiek, 31 Ohio St. 521; tison, 166 Ala. 602, 52 So. 49. McConkey v. Barnes, 42 111. App. 511. A minor husband may be liable 19. Bae. Abr., Infancy and Age criminally for non-support. Land v. (B) ; 3 Burr. 1802; Met. Contr. 66. State, 71 Fla. 270, 71 So. 279; Coeh- Even though such marriage failed of ran v. Cochran, 196 N. T. 86, 89 N. the parent's consent. Commonwealth E. 470. See § 20; Bonney v. Reardin, v. Graham, 157 Mass. 73. 6 Bush 34. ^^- Chappie v. Cooper, 13 M. & W. 17. Such marriages are only in- 259; Shouler, Hus. & Wife, §§ 418, choate even though the statute de- 413. Clares them void. Smith v. Smith, 21. Met. Contr. 66. See Butler v. 84 Ga. 440; § 20; Land v. State Breck, 7 Met. 164; Roach v. Quick, 9 (Fla) 71 So. 279, L. B. A. 1916B, Wend. 238. As to devastavit by an 760- Com. V. Graham, 167 Mass. 73, infant administrator, see Saumm v. 31 N. E. 706, 16 L. R. A. 578. Con- CofEelt, 79 Va. 510. tra People v. Todd, 61 Mich. 234, 28 22. Prouty v. Edgar, 6 Clarke (la.), jj '-^^ 79. 353; Starr v. WrigM, 20 Ohio St. 97; 18. Schonler, Hus. & Wife, §§ 24, Elliott v. Horn, 10 Ala. 348; Nord- holt V. Nordholt, 87 Cal. 552. § 1025 INFANCY. 1200 king cannot be avoided on the ground of infancy ; partly for the same reasons, partly as one of the attributes of his sovereignty." This attribute of sovereignty may perhaps enter as an element into the public acts of infants in this country who are improperly chosen to civil offices, yet whose official acts should be sustained. § 1024. Infant Members of Corporations. It is held that infants and married women, owning proprietary rights in townships, are not by reason of legal incapacity prevented from being bound by the acts of proprietors at legal meetings." And the same is doubtless true of infant shareholders in corpora- tions generally.^' Their incapacity would, otherwise, block the wheels of business altogether in matters where it is really prop- erty, and not persons, that are usually represented.^' § 1025. Acts Which the Law Would Have Compelled. It is an old and well-settled doctrine that an infant will be bound by any act which the law would have compelled him to per- form; as if the infant make equal partition of lands, or assign dower, or release a mortgaged estate on satisfaction of the debt.'^ But it is held that this rule does not apply to the case of a volun- tary distribution ; for the law, though it would have coerced a dis- tribution, might not have made just such a one as was made by the 23. Met. Contr. 66. So infancy is no defence in an ae- 24. But where a corporation was dis- tion on an instrument of settlement solved and a new one- formed, it was between the father and mother of a held that an infant stockholder was bastard. Gavin v. Burton, 8 Ind. 69. not bound by a contract to take shares An infant may be restrained by an in the new corporation in lieu of his injunction from making such a use stock in the old one. White v. New of his real estate as to do irreparable Bedford, etc., Corp., 178 Mass. 30, 59 injury to the property of another. N. E. 642; Wuller v. Chuse Grocery Cole v. Manners, 76 Neb. 454, 107 N. Co., 241 111. 398, 89 N. E. 796; Town- W. 777; Young v. Sterling Leather send V. Downer, 32 Vt. 183. Works (N. J.), 102 A. 395. 25. An infant may be a member of An infant has been restrained from a mutual benefit association on a vol- violating a contract not to solicit cer- untary basis, with the usual conse- tain business. Mutual Milk & Cream quences. Chicago Mutual Association Co. v. Prigge, 98 N. T. S. 458, 113 V. Hunt, 127 ni. 257. Cf. Matter of App. Div. 652; Co. Litt. 38 a, 173 a; Globe Mutual Assn., 63 Hun, 263. 3 Burr. 1801; Met. Contr. 67; Jones 26. As to the binding force of a v. Brewer, 1 Pick. 314; Baving^n decree in equity upon the infant's v. Clarke, 2 Pa. 115; Prouty v. Ed- property, see post, ch. 6. gar, 6 Clarke (la.), 353. 27. Sims V. Gunter (Ala.), 78 So. 62. 1201 ACTS BINDING. § 1026 parties."' The rights of a minor in land may be condemned under the power of eminent domain." § 1026. Contracts Binding Because of Statute; Enlistment; Indenture. Enlistments are binding contracts under appropriate public statutes.*" Whenever a statute authorizes a contract which from Its nature or objects is manifestly intended to be performed by infants, such a contract must, in point of law, be deemed for their benefit and for the public benefit; so that when borm fide made it is neither void nor voidable, but is strictly obligatory upon them. Yet if there be fraud, circumvention, or undue advantage taken of the infant's age or situation by the public agents, the contract could not, in reason or justice, be enforced.^^ And contracts of enlistment are not by our statutes usually made binding upon any infants under a prescribed age, without, at all events, the consent of parent or guardian,^^ But such requirement of consent imports no privilege to the minor ; for he on his own part becomes bound by his enlistment contract.*' On like principles, a minor may be bound by his indentures of apprenticeship, executed in strict conformity to statute; these being likewise deemed for his beneft. By the custom of London, and under the laws of some States, the covenants of the minor apprentice are obligatory upon him. But it is otherwise by the common law of England, and also under the statutes of Elizabeth, and- in New York, Massachusetts, and other States. Still, al- though the infant may not be liable for breach of his covenants, he cannot dissolve the indenture.** The English doctrine is that indentures are so far binding that the master may enforce his rights under them ; and the legal incidents of service as apprentice attach to this relation ; unless the master by his ovra misconduct 9S. Kilcrease v. Shelby, 23 Miss. Mason, 83. And see Franklin t. 161. Mooney, 2 Tex. 452. 29. Brown v. Eome & Decatur Rail- 32. Matter of Tarble, 25 Wis. 390 ; road Co., 86 Ala. 206; Hutchinson v. In re McDonald, 1 Low. 100; Seavey McLaughlin, 15 Col. 492. v. Seymour, 3 Cliff. 439. 30. Acker v. Bell (Fla.), 57 S. 356, 33. Morrissey, Be, 137 U. S. 157. 39 L. E. A. (N. S.) 454; King v. Here the infant falsely represented Eotherfield Greys, 1 B. & C. 345 ; Com- himself as older than he was. monwealth v. Gamble 11 S. & R. 9-3; 34. Met. Contr. 66. But in some United States v. Bainbridge, 1 Mason, States he can. See "Woodruff v. Lo- 83, before Story, J. gan, 1 Eng. 276; Stokes v. Hatcher, 31. TTnited States v. Bainbridge, 1 1 So. 84; MeDowle's Case, 8 Johns. 76 § 1028 INFANCY. 1202 deprives the infant of the benents of the contract, in which case the law will release the latter from his bargain.*" A provision not for the benefit of the infant under such an indenture may render such an instrument inoperative.'" In short, the age at which an infant shall be competent to perform certain acts, civil or military, is subject to l^slative provision.'' § 1027. Infant's Recognizance for Appearance on Criminal Charge. Partly out of respect to statute requirements, and partly, no doubt, because it is beneficial to one charged with crime to be allowed to enter into recognizance for his personal appearance in court, instead of suffering close confinement meantime, it is held that a minor defendant in criminal proceedings may bind himself personally by such recognizance, entered into after the usual form by himself and his sureties.*' § 1028. Whether Infant's Contract for Service Binds Him. Apart from statutes prescribing differently, and minor appren- tice acts in particular,'^ the executory contract of a minor, mad© without the consent of his parent or guardian, for employment for a certain or uncertain time, by means of which he may obtain necessaries or a livelihood, may be treated perhaps as void if posi- tively disadvantageous in terms ; *" it is not by the better author- ities to be considered as absolutely binding upon him, however fair and advantageous its provisions, to the extent of compelling him to fulfil stipulations, like an adult; but so far as he himself ifl concerned it is usually voidable.*"^ If the contract were made by parent or guardian, or conformed to apprentice legislation, the employer's relation as to such a party would of course be different. 331; Blunt V. Melcher, 3 Mass. 228; not paying wages regularly. Meakin Eex V. Inhabitants of Wigston, 3 B. v. Morris, 12 Q. B. D. 352. § 403. & C. 484; Owens v. Frager, 119 Ind. 37. A minor's contract to snpjwrt 532; Clark v. Goddard, 39 Ala. 164; his bastard child held binding, be- infra, Part VI., eh. 1. cause statute would have compelled it. 35. 5 Dowl. & By. 339'; 6 T. B. Stowers v. Hollis, 83 Ky. 544. 558; Cro. Jac. 494; Cro. Car. 179; 38. State v. Weatherwai, 13 Kan. Met. Contr. 66; Bex v. Mountsorrel, 463; 404 n. and citations. 3 M. & 8. 497. Infant's covenant to 39. § 1026. pay a reasonable premium for being 40. Begina v. Lord, 12 Q. B. 758; taught the business enforced. (1891) supra, § 1009. Myatt V. St. Helene 's E. B. Co., 2 41. See Person v. Chase, 37 Vt. fl47, Q. B. 369. and other cases referred to in eh S, 36. Such, e. g., as a provision for post. 1203 ACTS BINDING. § 1028 In this country the cases are very common where a minor is said to be emancipated and entitled to contract for and receive hia own wages. But the significance of the word " emancipation " is not exact; and, certainly, the legal obligation of the infaWs contract for work as to others is by no means commensurate with tis right to the fruits of his own toil.*^ His legal capacity to do acts necessarily binding does not seem to be enlarged by the cir- cumstance that his father has given him his time.** or that he serves out with neither parent nor guardian to assume liabilities to others for him. But the right of an infant nearly of age and an orphan without a guardian, to recover the wages due him under a contract for his services, should in the courts be favorably regarded.** 43. As to the more general effect of 43. Post, ch. 5. a child's emancipation, see supra, 44. Waugh v. Emerson, 79 Ala. 295. Part 3, ch. 5. § 1030 INFANCY. 1204: CHAPTER IV. THE INJUEIES AND FRAUDS OP INFANTS. Sectiok 1029. DiTision of This Chapter. 1030. Injuries Committed by Infant; Infant Civilly Besponsible. 1031. Immunity for Violation of Contract Distinguished. 1031a. Same Subject; Infant's Fraudulent Eepresentations as to Age, &e. 1032. Estoppel by Misrepresentation of Age. 1033. Injuries, &o., Suffered by Infants. 1034. Child's Contributory Negligence. 1035. Contributory Negligence of Parent, Protector, &e. 1035a. Arbitration, Compromise and Settlement of Injuries Committed or Suffered by Infants. § 1029. Division of This Chapter. In this chapter we shall treat, first, of injuries and frauds oom- mitted by an infant; second, of injuries and frauds suffered by an infant. § 1030. Injuries Committed by Infant; Infant Civilly Respon- sible. First, as to injuries and frauds committed by an infant. It is a general principle that infancy shall not be permitted to protect wrongful acts. To use the forcible expression of Lord Mansfield, the privilege of infancy is given as a shield and not a sword.** And minors are liable, not only for their criminal acts, but for their torts; and must respond in damages in all cases arising ex delicto to the extent of their pecuniary means, irrespective of the form of action which the law prescribes for redress of the wrong.*" 45. Zouch T. Parsons, 3 Burr. 1802. for violation of a militia statute. 46 Watson v. Wrightsman, 36 Tnd. Winslow v. Anderson, 4 Mass. 376; App. 437, 56 N. E. 1864; Daggy v. Caswell v. Parker, 96 Me. 39, 51 A. MiUer (la.), 162 N. W. 854. 238; Brunhoelzl v. Brandos, 90 N. J. In Kentucky the rule is limited to Law, 31, 100 A. 163; Hewitt v. War- cases where malice is not a necessary ren, ,10 Hun (N. T.), 560; People v. element, since infants are not pre- Kendall, 25 Wend. (N. T.) 399, 37 sumed to be capable of malice. Ste- Am. D. 240; Collins v. Gifford, SOB phensv. Stephens, 172 Ky. 780, 189 8. N. Y. 465, 96 N. E. 721; Saum v. W. 1143; Guidry v. Davis, 6 La. Ann. Coffelt, 79 Va. 510; Briese v. Maech- 90; McGreevey v. Boston Elevated tie, 146 Wis. 89, 130 N. W. 893; Para- Ey. Co. (Mass.), 122 N. E. 278. dies v. Woodard, 156 Wis. 243, 149 An infant is liable for a penalty N. W. 657; Covault v. Nevutt, 197 1205 INJURIES AND FKAUD8. § 1030 An infant is then as fully liable as an adult in an action for damages occasioned by injury to the person or property of another by his wrongful act.*^ True, as it has been observed where infants are the actors, that might probably be considered an unavoidable accident, which would not be so where the actors are adults.*' But, says a writer, where the minor commits a tort with force, he is liable at any age; for in case of civil injuries with force, the intention is not regarded.** It follows from what we have said, that for an injury occasioned by an infant's negligence, he may be held civilly answerable. As where, in sport, he discharges an arrow in a school-room where there are a number of boys assembled, and thereby disables an- other ; ^^ or aims a missile at an older boy and accidentally hits another and younger one.°^ And even though under seven years of age, a child has been held liable in trespass for breaking down the shrubbery and flowers of a neighbor's garden."^ But not for turning horses which were trespassing on his father's land into the highway, for this does not constitute a tort.°* All the cases agree that trespass lies against an infant. And minors are charge- able in trespass for having procured others to commit assault and battery.'* While, furthermore, an infant, as we have seen, can- not be sued for mere breach of promise to marry, one old enough to commit such an offence is liable in civil damages for seduction, whether accompanied or not by such a promise."' But, supposing a tort to have been committed by the express command of the father; is the infant then liable? So it was "Wis, 113, 146 N. W. 115; Met. Contr. 50. Bullock v. Babcock, 3 Wend. 49; 1 Addis. Torts, 731; 8 T. E. 335; 391. « Kent, Com. 240, 241 ; School District 51. Peterson v. Haffner, 59 Ind. V. Bragdon, 3 Tost. 507; BuUuck v. 130; Conway v. Eeed, 66 Mo. 346. Babcock, 3 Wend. 391; Oliver v. Mc- 52. Huchting v. Engel, 17 Wis. 231; OleUan, 21 Ala. 675. Huggett v. Erb, 148 N. W. 805; 47. Conklin v. Thompson, 29 Barb. O 'Leary v. Brooks Elevator Co., 7 N. 218 D. 554, 41 L. E. A. 677 (holding that 48. Bullock V. Babcock, 3 Wend. a child may be a trespasser). 33 J 53. Humphrey v. Douglass, 10 Vt. 49. Eeeve, Dom. Eel. 258. See Neal 71. V. Gillett, 23 Conn. 437. 54. Sikes v. Johnson, 16 Mass. 389; An infant is not liable to arrest TifEt v. TifEt, 4 Denio, 177; Scott v. on civil process. If, however, the writ Watson, 46 Me. 362. was valid, on its face, the infant has 55. Becker v. Mason, 93 Mich. 336; no right of action against one aiding § 415; Fry v. LesUe, 87 Va. 269. the officer in making the arrest. Gas- sier, Be, 139 Mass. 458, 461. § 1030 INFANCY. 1206 thought in a Vennont case, where the decision nevertheless rested on a different ground."* "An infant, acting under the command of his father, as a wife in the presence of her husband, might be excused from a prosecution for crime, if it should appear that the intent was wanting, or that he was acting under constraint; yet he is answerable dviliter for injuries he does to another." " And more recently this question is plainly decided in Maine, in the affirmative."* In North, Carolina, too, it is held that the infant cannot defend by alleging that the tort was committed by the direction of one having authority over him."' On the other hand, it would appear that an infant cannot be held responsible for torts committed by persons assuming to act under his implied authority ; in other words, that his liability is not to be extended in any case beyond acts committed by himself or under his immediate and express direction.*' An infant in the actual occupation of land is responsible for nuisances and injuries to his neighbor, arising from the negligent use and management of the property.*^ Or for wrongful deten- tion of premises.*^ ISTor was he liable for breaking a borrowed carriage.** And ejectment may be maintained against an infant for disseisin, that being a tort. He may be liable for libel.** It seems that he may be liable for negligence, if he fails to exercise that degree of care which one of his age would ordinarily exercise. 6S se. Humphrey v. Douglass, 10 Vt. White, 58 Neb. 23, 78 N. W. 369, 71. 76 Am. St. E. 64. 57. Per Williams, C. J., ib. The owner of an automobile loan- 58. Scott V. Watson, 46 Me. 363. ing it to an infant cannot recover for 59. Smith v. Kron, 96 N. C. 392. negligence in its operation. Bnm- Here the offence was trespass upon hoelzl v. Brandes, 90 N. J. Law, 31, another's premises. 100 A. 163. GO. Bobbins v. Mount, 4 Bob. (N. A minor who buys an automobile ■T.) 553; Bumham v. Seavems, 101 and later disaffirms is not liable for Mass. 360. his unskilfulness in the use of it, but 61. 1 Addis. Torts, 731; MeCoon v. is liable for tortious acts resulting in Smith, 3 HiD, 147. damage to the ear. Woolridge v. 62. McClure v. MoClure, 74 Ind. Lavoie (N. H.), 104 A. 346; Young 108. T. Muhling, 63 N. T. S. 181, 48 App. 63. Sehenek v. Strong, 1 So. 87. Div. 617 (holding that an infant is 64. Fears v. Eiley, 148 Mo. 49, 49 not liable for negligence where the S. W. 836. act was not wilful and intentional) ; 65. House v. Pry, 30 Cal. App. 157, Briese v. Maeehtle, 184 Wis. 89, 130 157 P. 500; Hartnett v. Boston Store N. W. 893. of Chicago, 265 HI, 331, 106 N. E. A child is only required to exer- 837, li. E. A. 1915C, 460; Churchill v. cise that degree of care which the 1207 INJURIES AND FKAUDS. § 1031 An infant is not, however, liable for the torts of an agent/* § 1031. Immunity for Violation of Contract Distinguished. Ihe cases on the subject of an infant's torts do not seem quite oonsistent, so far as decisions upon the facts are concerned; but the principle which runs through them all serves to harmonize the apparent contradictions. This is the principle: that the oonrts wiU hold an infant liable for what are substantially his torts, but not for mere violations of a contract, though attended with tortious results, and though the party ordinarily has the right to declare in tort or contract at his election. It must be remembered that, for his contracts, the infant is not ordinarily liable : for his torts he is. And this distinction is at the root of the legal difiBeulty. The plaintiff cannot convert anything that arises out of a contract into a tort, and then seek to enforce the contract through an action of tort. Therefore was it held that where a boy hired a horse and injured it by immoderate driving, this was only a breach of contract for which he was not liable.*^ And where in an exchange of horses the infant had falsely and fraudulently warranted his mare to be sound, he was protected from the consequences on the same principle.*^ The English cases, decided many years ago, exhibit a strong disposition to apply this rule in favor of an infant's exemption. And the language of the court in Mariby v. Scott, with reference to the delivery of goods to an infant, and suit afterwards for trover and conversion, was that the latter shall not be chargeable : " for by that means all infants in England would be ruined." " Says a jndge, deciding a case on the same general principle, " the judg- ment will stay forever, else the whole foundation of the common great mass of children of the same where it appeared that the infant was age ordinarily exercise under the threshing the grain under a contract Bain« circumstances, taking into ac- with plaintiff, and that the negli- eonnt the experience, capacity, and gence was not wilful, since the act nndertaanding of the child. Briese took place under a voidable contract). T. Maechtle, 146 "Wis. 89, 130 N. G6. Covault v. Nevitt, 157 Wis. 113, W. 893. But see Lowery v. Cate, 146 N. W. 1115. 108 Tenn. 54, 64 S. W. 1068, 57 67. Jennings v. Eundall, 8 T. E. I,. B. A. 673, 91 Am. St. E. 744 335. (holding that where plaintiff's grain 68. Green v. Greenblank, 2 Marsh, was destroyed by a spark from 485; Howlett v. Haswell, 4 Campb. an infant's threshing machine en- 118; Morrill v. Aden, 19 Vt. 505. gine, which was without a spark ar- 69. 1 Sid. 129, quoted with appro- lester, the infant was not liable, bation in Jennings v Eundall, sttpro. § 1031 IKPANCT. 1208 law will be shaken." '" But a more equitable principle pervades the later cases. Thus in an English case, where one twenty years old hired a horse for a ride, and was told plainly that it was not let for jumping, and notwithstanding caused the horse to jump a fence and killed the animal, he was held liable for the wrong."^ And in Vermont an infant was held answerable, not many years ago, where he hired a horse to go to a certain place and return the same day, then doubled the distance by a circuitous route, stopped at a house on the way, left the horse all night without food or shelter, and by such over-driving and exposure caused the death of the horse.''^ This is the Massachusetts doctrine likewise,'* and that of other States.'* The New Hampshire rule is that the infant bailee of a horse is liable for positive tortious acts wilfully committed, whereby the horse is injured or killed; though not for mere breach of contract, as a failure to drive skilfully.'^ The distinction to be relied upon is, that when property is bailed to an infant, his infancy protects him so long as he keeps within the terms of the bailment ; but when he goes beyond it, there is a con- version of the property, and he is liable just as much as though the original taking were tortious." Chief Justice Marshall pronounces infancy to be no complete bar to an action of trover, although the goode converted be in the infant's possession in virtue of a previous contract. " The con- version is still in its nature a tort; it ia not an act of omission but of commission, and is within that class of offences for which infancy cannot afford protection." " This doctrine is approved in 'New York '* and in Maine." So, in England, detinue will lie against an infant where goods were delivered for a special purpose not accomplished.'" And the general rule seems to be now well established that an infant is liable for goods intrusted to his care, and unlawfully converted by him ; though as to what would con- 70. Johnson v. Pye, 1 Keb. 905. Pennsylvania. Penrose v. Curren, 3 See n. to Hewlett v. Haswell, supra. Eawle, 351. An infant of appaient 71. Bumard v. Haggis, 14 0. B. (N. discretion was not allowed to defraud S.) 45. upon the settlement of a suit, where 72. Towne v. Wiley, 23 Vt. 355. hia promise had been relied on, in And see Eay v. Tubbs, 55 Vt. 688. Ca'dwallader v. McClay, 37 Neb. 359. 73. Homer v. Thwing, 3 Pick. 492. 77. Vasse v. Smith, 6 Craneh, 228. 74. Freeman v. Boland, 14 E. I. 39. 78. Campbell v. Stakes, 2 Wend. 75. Eaton v. HiU, 50 N. H. 235. 137. 76. Towne v. Wiley, supra, per Bed- 79. Lewis v. Littlefield, 15 Me. 233. field, J. The rule is otherwise in 80. Mills v. Graham, 4 B. & P. 146. 1209 INJURIES AND FEAUD3. § 1031 fititute such conversion, the authorities are not agreed.** Thus it is held that while a ship-owner cannot sue his infant supercargo for breach of instructions he may hring trover for the goods.''' And an infant, prevailing on the plea of infancy in an action on a promissory note given by him for a chattel which he had obtained by fraud and refused to deliver on demand, has still been rendered liable to an action of tort for the conversion of the chattel; the original tort not having been superseded by a completed contract.** Replevin would lie for the goods even where a suit for damages might fail.** For stolen money and stolen goods converted into money, an infant is held liable in assumpsit.*' Yet his conversion of specific goods should be carefully distinguished from what is in substance a breach of his contract to sell and account for profits.*' Where an action for money had and received was brought against an infant to recover money which he had embezzled. Lord Kenyon said that infancy was no defence to the action; that infants were liable to actions ex delicto, though not ex contractu, and though the action was in form an action of the latter descrip- tion, yet it was in point of substance ex delicto." For embezzle- ment of funds, therefore, an infant may be considered liable.** And in 'New York, and some other States, an infant is held re- sponsible in tort for obtaining goods on credit, intending not to pay ; ** or for drawing a check fraudulently against a bank where he has no funds, in payment of his purchase.®" In New Hamp- shire, the general rule is stated to be, that if false representations are made by an infant at the time of his contract, he may set up infancy in defence ; but that if the tort is subsequent to the con- tract, and not a mere breach of it, but a distinct, wilful, and posi- tive wrong of itself, then, although it may be connected with a contract, the infant is liable." Tho test is always whether an action of tort can be made out 81. See Story, Bailments, § 50; 3 75. And see Bums v. Hill, 15 Ga. Kent, Com. 341; Baxter v. Bush, 29 23. Vt 465 • Schouler, Bailments. 87. Bristow v. Eastman, 1 Esp. 172. 82 Vassee v. Smith, 6 Cranch, 326. 88. ElweU v. Martin, 32 Vt. 217. 63 Walker v. Davis, 1 Gray, 506. 89. Wallace v. Morse, 5 Hill, 391, And see Fitts v. Hall, 9 N. H. 441. and cases cited. But the rule ap- 84 Badeer v. Phinney, 15 Mass. pears otherwise in Indiana. Boot v. Stevenson's Adm'r, 24 Ind. 115. 359 85 Shaw V Coffin, 58 Me. 254; El- 90. Mathews v. Cowan, 59 111. 341. well 'v. Martin, 32 Vt. 317. 91. Fitts v. Hall, 9 N. H. 441; 86 See Munger v. Hess, 38 Barb. Prescott v. Norris, 32 N. H. 101. § 1031a INFANCY. 1210 without regard to the contract.*'' To raaintain an action of tort against an infant, the act complained of must be wholly tortious." For example, an action for false warranty or other breach of con- tract cannot be made over into deceit so as to hold the infant,** Conversely, the infant cannot escape liability for deceit on the theory of a false warranty.*' An infant is liable generally for fraud/" but mere silence of a minor as to his age is not fraud for which deceit can be maintained.'^ § 1031a. Same Subject; Infant's Fraudulent Representations as to Age, &c. The plea of infancy has long been considered, both in England and this country, a good defence to an action for fraudulent repre- sentation and deceit. Thus, the rule is, that an infant who falsely affirms goods to be his own, and that he had a right to sell them, and thereby induces the plaintiff to purchase them, is not respon- sible.** For the plea of infancy, as it is sometimes said, will prevail when the gravamen of the fraud consists in a transaction which really originated in contract.** The result is circumlocu- tion and uncertainty, oftentimes in trivial matters. And it is sometimes held that such an action, as for tort, will not lie.^ 92. Churchill v. White, 58 Neh. 23, 97. Frank Spangler Co. v. Hanpt, 78 N. W. 369, 76 Am. St. E. 64; Low- 53 Pa. Super. 545; Grauman, etc., Co. ery v. Cate, 108 Tena. 54, 64 8. W. v. Krienitz, 142 Wis. 556, 126 N. W. 1068, 57 L. B. A. 673. 50. 93. (Iffll) ColHus V. Gifford, 203 98. Minority does not prevent the N. Y. 465, 96 N. E. 721; Frank adult from rescinding where the in- Spangler Co. v. Haupt, 53 Pa. Super. fant makes false representations. Ct. 545; Covault v. Nevitt, 157 Wis. Pritchett v. Fife, 8 Ala. App. 463, 62 113, 146 N. W. 1115; Campbell v. S. 1001; Brooks v. Sawyer, 191 Mass. Perkins, 8 N. T. 430; Wilt v. Welsh, 151, 76 N. E. 953; Eaymond v. Gene- 6 Watts (Pa.) 430 ; Gilson v. Spear, ral, etc., Co., 230 Mass. 64, 119 N. E. 38 Vt. 311, 88 Am. D. 659. 359. 94. Brooks v. Sawyer, 191 Mass. An infant securing goods by false 151, 76 N. E. 953, 114 Am. St. E. 594; representations is not liable in trover. Hewitt V. Warren, 10 Hun (N. T.), Slayton v. Barry, 175 Mass. 513, 56 560; Collins v. Gifford, 203 N. T. 465, N. E. 574, 49' L. E. A. 560 ( 78 Am. St. 96 N. E. 721, 38 L. E. A. (N. S.) Eep. 510. But see Shenkein v. Fuhrmaa, 202. 141 N. T. S. 909, 80 Misc. 179 ; Grove 95. Pritchett v. Fife, 8 Ala. App. v. NeviU, 1 Keb. 778; 1 Addis. Torts, 462, 62 S. 1001 ; Patterson v. Kasper, 661 ; Prescott v. Norris, 32 N. H. 101 ; 148 N. W. 690. Morrill v. Aden, 29 Vt. 465. But see 96. Guidry v. Davis, 6 La. Ann. 90; Word v. Vance, 1 Nott & MoCord, Saum v. Coffelt, 79 Va. 719; Patter- 197. son V. Kasper (Mich.), 148 N. W. 99. Gilson v. Spear, 38 Vt. 311. 690, L. E. A. 19i5A, 1221; BlweU v. 1. Nash v. Jewett, 61 Vt. 501, uid Martin, 32 Vt. 217. cases cited. 1211 INJURIES AND FEAUDS. §1032 § 1032. Estoppel by Misrepresentation of Age. It has been held that for a false and fraudulent representation that he was of full age there is no remedy against the infant; whether money were advanced or goods intrusted to him on the strength of such representation.^ The reader must reconcile the sense of these rules with some of the foregoing cases as best he may. If anything be needed to show the inadequacy of common- law remedies for frauds and wilful misrepresentations, it is just Such maxims as these which have been perpetuated from the old books. Upon common-law principle it may well be said that while an infant's false representation of full age or other material fraud may perhaps constitute a separate cause of action, as for a tort, it will not render his contract valid so as to estop him from avoid- ing it,' even though the facts relied on as an estoppel would sup- port an action in tort,* unless he has attained years of discretion, and unless the act be intentionally fraudulent.^ Some courts hold that the doctrine of estoppel has no application to infants." Other 2. Johnson v. Pye, 1 Sid. 258 ; Price T. Hewett, 8 Exch. 146 ; h. c. 18 E. L. & Eq. 522; Furley v. Eussell, 10 N. H. 184; Conroe v. Birdsall, 1 Johns. Caa. 187 ; Merriam v. Cunningham, 11 Cosh. 40 ; Brown v. MeCune, 5 Sandf . 224; Carpenter v. Carpenter, 45 Ind. 142. As to an infant's false repre- sentation of age when marrying, see § 20. 8. Carpenter v. Carpenter, 45 Ind. 143; Conrad v. Lane, 26 Minn. 38ff; Heath v. Mahoney, 14 N. T. Supr. 100; Stndwell v. Shapter, 54 N. T. 249. And see Whiteomb v. Joslyn, 51 Vt. 79; Hughes v. Gallans, 10 Phila. 618; Alvey v. Eeed, 115 Ind. 148, 17 N. E. 265, 7 Am. St. B. 418 ; I^ey V. Pixler, 120 Mo. 383, 25 S. W. 206; Eidgeway v. Herbert, 150 Mo. 606, 51 8. W. 1040, 73 Am. St. E. 464 ; Carolina Interstate Bldg. & Loan Ass'n V. Black, 119 N. C. 323, 25 S. E. 975; LaEoae v. Nichols (N. J. Sup.), 103 A. 390; International, etc., Co. V. Connelly, 206 N. T. 188, 99 N. E. 722; Johnson v. Clark, 51 N. T. S. 238, 23 Misc. 346 ; New York Bldg. Loan Banking Co. v. Pisher, 45 N. T. S. 795, 20 Misc. E. 242. The absurdity of the old rule ia well illustrated by a. recent Massachu- setts decision holding that where an infant leases a motorcycle and takes it out and smashes it up he can bring back the wreck and then recover all instalments he has paid thereon, al- though the contract was in the first place made in reliance on his writ- ten statement under oath that he was of age. This decision is an encourage- ment to young crooks and seems in defiance of common sense and com- mon justice. Knudson v. General Motorcycle Co., 230 Mass. 54. 4. New York, etc., Co. y. Fisher, 45 N. Y. S. 795, 20 Misc. 242. 5. Williamson v. Jones, 43 W. Va. 562, 27 S. E. 411, 38 L. E. A. 694. 64 Am. St. E. 891 ; Headley v. Hoop- engarter, 60 W. Va. 626, 55 S. E. 744, 6. Lyons v. First Nat. Bank, 101 Ark. 368, 142 S. W. 856; Tobin 7. Spann, 85 Ark. 556, 109 S. W. 534; Eowe V. Allison, 87 Ark. 206, 112 S. W. 395; Beaoehamp v. Bertig, 90 § 1032 iwFAiTCT, 1212 courts assert the doctrine broadly that an infant may be estopped from disaffirming his contract in any case where the evidence plainly and convincingly shows the presence of actual, active and wilful fraud and misrepresentation deceiving the other party to his damage/ Chancery, handling its weapons with more freedom, is accom- plishing resulta in this respect more widely useful. The doctrine of the English equity courts appears to have been, for years, that where payment is made to one falsely representing himself as an infant, this is a discharge for the sum paid ; but that where there was no such misrepresentation the trustee still remains liable; the mere belief that one was of age, of course, affording no ground of justification.* An English bankruptcy case of modem date carries the principle still farther ; far enough to startle those who have reposed upon the assurance liiat the ancient judgments " will stay forever." A young man, who from his appearance might well have been taken to be more than twenty-one years of age, engaged in trade, and wished to borrow or to obtain credit, and for the purpose of doing so represented himself to the petitioner, expressly and distinctly, as of the age of twenty-one. It was held that, whatever the liability or non-liability of the infant at law, he had made himself liable in equity to pay that debt.* But in a somewhat later case, not inconsistent with these others, it was held Ark. 351, 119 S. W. 75; Kirkham v. minority. Barbieri v. Mesaner, 106 Wieeler-Osgood Co., 39 Wash. 415, 81 Minn. 102, 118 N. W. 258; Lake v. P. 869. Perry, 95 Miss. 550, 49 So. 669. 7. Bunel v. O'Day, 135 F. 303. Where an infant 19 years of age. Where plaintiff was indebted to in consideration of employment by a defendants for goods sold to him milk company, contracts not to solicit while conducting a grocery and meat business from the customers of the market, and while indebted to them employer within three years after left the State for the purpose, as he leaving its employ, an injunction will alleged, of buying some hay to be lie to restrain him from violating the shipped to the town in which he re- agreement. Mutual Milk & Cream sided, and a third party sold all the Co. v. Prigge, 98 N. T. S. 458, 112 property in the store to defendants, App. Div. 652. they believing at the time that plain- 8. Overton v. Bannister, 3 Hare, tiff had absconded, and also believing 503; Stikeman v. Dawson, 1 De O. & that the third party was a partner of S. 90. plaintiff, where there was no evidence 9. In re Unity and Banking Asiw- that plaintiff had induced such third (nation, 3 De G. & J. 63 (1858). party to make the representations Lords Justices Bruce and Turner con- that he had absconded or abandoned cxirred in this opinion, both expressing his property, he was not estopped by some reluctance in giving the jndg- the ciicumstances from asserting his ment. 1213 INJUEIES AND FKAUDS. § 1032 that an infant's settlement upon his wife might be avoided by him on arriving at majority, notwithstanding there was some evidence that he fraudulently misstated his age to her solicitor; the fact being, however, that she, a widow of thirty-two, knew perfectly well that he was under age, and was not misled by his representations.^" The result of these late English decisions is to reopen in that country the whole subject of an infant's liability on his fraudulent misrepresentations ; and considerable uncertainty appears to per- vade the latest common-law decisions in that country, which inci- dentally bear upon the subject.^^ Whether the new or the old doctrine is in the end to prevail, it is too early yet to say ; but a collision has come, towards which equity and the common law were fast tending. Much, however, depends upon the position in which the infant's liabilities are presented in court.^^ The civil-law doctrine is clearly that if a minor represents him- self of age, and from his person he appears to be so, any contract made with him will be valid ; and the law protects those who are defrauded, not those who commit fraud.^^ And such was the Spanish law as formerly prevalent in our Southwestern States.^* In a Maryland case, too, we find the suggestion that if an infant forms a partnership with an adult he holds himself out fraudu- 10. Nelson v. Stocker, 4 De G. & J. 11. See DeEoo v. Foster, 12 C. B. 458 (1859). Lord Justice Turner, (N. S.) 272 (1862) ; Wright v. Leon- commenting upon the case, said: ard, 11 C. B. (N. S.) 258. ' ' There can be no doubt that it is 12. Thus, recently, where an infant, morally wrong in an infant of com- had obtained a lease on a false rep- petent age, as it is in any other per- resentation that he was of full age, eon, to make any false representa- it was held in chancery that the lease tion whatever; but the observance of must be declared void and possession obligations or duties which rest only given up, and the infant enjoined upon moral grounds cannot be en- from parting with the furniture; but forced in chancery. Some wrong or that the infant could not be made injury to the party complaining must liable for use and occupation. Lem- be shown." He further observes: priere v. Lange, L. E. 13 Ch. D. "The privilege of infancy is a legal 675. privilege. On the one hand, it can- 13. 1 Dom., pt. 1, b. 4, tit 6, § 2. not be used by infants for the pur- 14. See able discussion of this sub- poses of fraud. On the other hand, ject by Hemphill, C. J., KOgore v. it cannot, I think, be allowed to be Jordan, 17 Tex. 341. There is not infringed upon by persons who, know- another American case to be found ing of the infancy, must be taken also where this subject is so fully dis- to know of the legal consequences cussed, in its civil-law, common-law, which attach to it." Ih., p. 465. See and English equity bearings (1870). Inman v. Inman, L. E. 15 Eq. 260. § 1032 INFANCY. 1214t lently to the world/' In Texas, the fraudulent representations of an infant are binding upon him." Intimations are sometimes found in the courts as to gross frauds which might bind an infant. ''^ And in Kentucky, not long since, the court refused to allow a deed made by a wife and her husband to be avoided on the ground of the wife's infancy, when, to induce the innocent purchaser to take the land, she and her husband had made oath before a magistrate that to the beet of their knowledge and information she was more than twenty-one years old. This was a righteous decision.^" In some other States an infant nearly of age who entraps another into a purchase or mortgage loan by direct participation in a fraud as to his or her age, has been estopped in chancery from attacking the title to the land afterwards on that ground, and thereby perpe- trating a fraud." Beyond this there seems increased authority for asserting that the American doctrine on this subject is unset- tled, and that it responds to the change now going on in the English courts.^" But an equity court in North Carolina refused, not many years since, to compel specific performance of an infant's contract on the alleged ground of fraudulent misrepresentation of his father and himself, that he was of full age ; following the old common-law rule instead of opposing it.^' And in many States 15. Kemp v. Cook, 18 Md. 130. The In Lacy v. Pixler, 120 Mo. 383, soeh remark is quoted as that of Lord an issue ia not clearly presented. Mansfield, in Gibba v. Merrill, 3 20. In several of the latest Ameri- Taunt. 307, but this must be an error, can cases the disposition is strong to as no such language appears in the hold an infant apparently of age and case referred to, while the decision in fact nearly so, liable for the conae- went upon totally different ground. quences of his fraudulent misrepresen- As to a partnership where the infant tation on that point. In Indiana an deceived the adult concerning his age, infant who by falsely stating himself see Bush, etc. v. Linthicum, 59 Md. to be of age obtained property for Mi, which he gave his worthless note and 16. KUgore v. Jordan, 17 Tex. 341 ; mortgage, is held liable to an action Carpenter v. Pridgen, 40 Tex. 32. for deceit. Eice v. Boyer, 108 Ind. 17. Stoolfos V. Jenkins, 12 S. & E. 472; of. Baker v. Stone, 136 Mass. 399; 2 Kent, Com. 341. And see 405, where the infant did not mis- Sterling v. Adams, 3 Day, 411; Da- represent, but merely knew that the vies, J., in Henry v. Boot, 23 N. T. adult supposed him to be of age. In 544. New Jersey an infant ward who 18. Schmitheimer v. Eiseman, 7 fraudulently procured a settlement Bush, 298. from his guardian by a similar false- 19. Ferguson v. Bobo, 54 Miss. 121. hood was not allowed to repudiate Here the fraud appears to have been that settlement on attaining majority, perpetrated without any positive mis- Hayes v. Parker, 41 N. J. Uq. 630. statement as to age. A clearer and 21. Dibble v. Jones, 5 Jones Bq» later ease is Pemberton Building As- 389. soeiation v. Adams (1895), N. J. Eq. 1215 IN JURIES AND FKAUDS. § 1032 atill an infant will not tkus be debarred from disaffirming his conveyance at majority."'' But our American statutes sometimes quicken the infant's sense of honor. Thus, in Iowa, it is enacted that one who, in selling real estate, represents himself to be of full age, and induces the grantee to buy on the strength of that representation, cannot after- wards disaffirm his contract on the ground of infancy.''* It would be well if similar statutes were enacted in every State. We as- sume, of course, in general, that the infant thus misrepresenting has reached years of discretion and in appearance might be taken for an adult. It may now, however, be said generally that where a minor represents himself to be of full age, the doctrine of estoppel will apply under certain conditions,"* but not where he falsely repre- sents that his disability has been removed under a statute."" To raise an estoppel the misrepresentation must be express."" Mere silence is not enough,"^ even though the infant ought to speak."* The same may be true where the information is given unwill- 22. Sims V. Everhardt, 102 TI. S. 25. ■Wilkinson v. Buster, 124 Ala. Snpr. 300. 23. Prouty v. Edgar, 6 la. 353. 24. Goff V. Murphy, 153 Ky. 634, 156 S. W. 95; Turner v. Stewart, 149 Ky. 15, 147 S. W. 772 ; Asher v. Ben- nett, 143 Ky. 361, 136 S. W. 879; County Board of Education v. Hens- ley, 147 Ky. 441, 144 S. W. 63 ; Edgar V. Gertison (Ky.), 112 S. "W. 831; Adkins v. Adkins (Ky.), 210 S. W. 462. It has been held to be otherwise where in a conveyance to a father to enable him to become surety the in- fant recites that he is of age, and where the court accepted the father as such surety on the faith of the recital, as well as on the infant's own testimony in open court to the same effect. Damron v. Com., 110 Ky. 268, 61 S. W. 459, 96 Am. St. E. 453 ; Lake V. Perry, 95 Miss. 550, 49 8. 569; Commander v. Brazil, 88 Miss. 668, 41 S. 497; Ostrander v. Quin, 84 Miss. 230, 36 So. 257, 105 Am. St. E. 426; La Eosa v. Nichols (N. J.), 105 A. 201; Grauman, etc., Co. v. Krienitz, 142 'wis. 556, 126 N. W. 50. 574, 26 So. 940. 2G. Grauman, etc., Co. v. Krienitz, 142 Wis. 556, 126 N. W. 50. 27. Prank Spangler Co. v. Haupt, 53 Pa. Super. Ct. 545; Headley v. Hoopengarner, 60 W. Va. 626, 55 S. E. 744; Grauman, etc., Co. v. Krie- nitz, 142 Wis. 556, 126 N. W. 50. If a minor merely fails to impart information as to his age and uses no artifice to induce the other party to enter into the contract, the doctrine of estoppel does not apply. Grauman, etc., Co. V. Kfienitz, 142 Wis. 556, 126 N. W. 50. 28. Grauman, etc., Co. v. Krienitz, 143 Wis. 556, 126 N. W. 50. The rule that an infant may bind himself by his actual fraud, but not by mere conduct or silence when he ought to speak, is an exception to the rule that an infant cannot bind him- self by estoppel, and is confined to cases where the infant is in fact de- velojed to the condition of actual dis- cretion, and to cases of actual fraud, and where the contract or transac- tion is beneficial. Grauman, etc., Co. § 1032 INFANCY. 1216 ingly.^* To raise an estoppel, the contract must be fairly made, and the consideration adequate/" There must be a fraudulent intent on the part of the infant,*^ and the misrepresentation must be relied on and must induce the contract.*^ The act relied on es an estoppel must be that of the infant himself.*' Where the other party knew, or as a reasonable aiid prudent man should have known of the infant's non-age, the latter's misrepresentation will not estop him,** but he is allowed to rely somewhat on the fact that the minor is well grown, so that his appearance indicates full age to a person of ordinary prudence.*^ Where th© contract is wholly void, it cannot be validated by an estoppel.*' V. Krienitz, 142 Wis. 556, 126 N. W. father's misrepresentation of his age, 50. 29. International, etc., Co. v. Doran, 80 Conn. 307, 68 A. 255. But see County Board of Education V. Hena- ley, 147 Ky. 447, 144 S. W. 63 (hold- ing that a false answer to a question as to a minor's age was ground for estoppel) . 30. Edgar y. Gertison (Ky. 1908), 113 S. W. 831; Asher v. Bennett, 143 Ky. 361, 136 S. W. 879 ; Gofe v. Mur- phy, 153 Ky. 634, 156 S. W. 95. 31. Putnal V. Walker, 61 Pla. 720, 55 So. 844. 32. Putnal v. Walker, 61 Ela. 720, 55 So. 844; County Board of Educa- tion V. Hensley, 147 Ky. 441, 144 S. W. 63; Commander v. Brazil, 88 Miss. 668, 41 8. 497; Lake v. Perry, 9'5 Miss. 550, 49 S. 569- Ostrander v. Quinn, 84 Miss. 230, 36 S. 257, 105 Am. St. E. 426; La Eosa v. Nichols (N. J.), 105 A. 201; Headley v. Hoopengarter, 60 W. Va. 626, 55 S. E. 744; Grauman, etc., Co. v. Krie- nitz, 142 Wis. 556, 126 N. W. 50. 33. A conveyance by the heirs of a decedent at the instance of the widow will not estop the minor children from having assigned to them a year 's sup- port from the estate of their de- ceased father. Jones v. Cooner, 137 Ga. 681, 74 S. E. 51; GofE v. Mur- phy, 153 Ky. 634, 156 S. W. 95; Howard v. Sebastian, 143 Ky. 237, 136 S. W. 226. A minor may be barred by his if in his presence and without objeo- tion by him. United States Inv. Co. V. inrickson, 84 Minn. 14, 86 N, W. 613, 87 Am. St. E. 336; Wallaee t. WaUaee (N. J.), 75 A. 770. 34. Putnal v. Walker, 61 Fla. 720, 55 So. 844, 36 L. E. A. (N. S.) 33; Asher v. Bennett, 143 Ky. 361, 136 S. W. 879; Lake v. Perry, &5 Miss. 550, 49 So. 569. 35. In Arkansas a different coniila- sion is drawn from the appearance ol full age. Beauchamp v. Bertig, 90 Ark. 351, 119 S. W. 75. Where a married infant having a beard and every appearance of being of age joined in a conveyance of his interest of trees and took an active part in the negotiations and assisted in counting and branding the trees and received his part of the purchase price, he was estopped from relying on his infancy to defeat the grantee's title without returning the considera- tion. Smith V. Cole, 148 Ky. 138, 149 S. W. 30; Commander v. Brazil, 88 Miss. 668, 41 So. 497 ; Lake v. Perry, 95 Miss. 550, 49 So. 569; La Eosa v. Nichols (N. J.), 105 A. 201. But see Prank Spangler Co. v. Haupt, 53 Pa. Super 545 (holding that the fact that the minor appears to be of age does not estop him if he makes no representation. 36. Hakes, etc., Co. v. Lyons, IM Cal. 557, 137 P. ffll. 1217 INJUEIBS AND FBAUDS. § 1034 § 1033. Injuries, &c., SufFered by Infants. Second. As to injuries and frauds suffered by infants. Infanta have a right to sue, by guardian or next friend, to recover damages for injuries done to person or property by the tortious acts of another ; and the ordinary principles of law, in this respect, as to contributory negligence, apply to them as to adults.*^ But by reason of their tender years, their rights and remedies receive a somewhat peculiar treatment in the courts, as we proceed to show. In actions for negligence he must show due care.^* § 1034. Child's Contributory Negligence. Thus it is held that a child eight years old may sue one who sells and delivers to him a dangerously explosive substance, such as gunpowder, though upon his own request.*' Such actions are grounded upon the ignorance of the child and the negligence of those who fail to regard it. The principle involved is precisely that of the case where a man delivers a cup of poison to an idiot or puts a razor into the hand of an infant. The child uses that ordinary care of which he is presumed capable at his age ; and though this may amount, logi- cally, to actual carelessness as applied among adults to the ordinary transactions of life, his right of action is not thereby forfeited.** 37. Wilmot V. McPadden, 78 Conn. As to action for malpractice in 276, 61 A. 1069; Allaire v. St. Luke's treating an infant, see Force v. Greg- Hospital, 184 HI. 359, 56 N. E. 638, ory, 63 Conn. 167. The fact that the 48 L. B. A. 225, 75 Am. St. E. 176; plaintiff is a minor and incapable of McGreevey v. Boston Elevated Ey. contracting for the service, or that Co. (Mass.), 122 N. E. 378. the father called the physician, con- An infant injured by negligence stitutes no defence. lb.; Harris v. while en ventre sa mere cannot recover McNamara, 97 Ala. 181. Injury to if at the time of the accident she was a young child by leaving team un- a foetus too young to have been bom hitched. Westerfield v. Levi Bros., vivable. Lipps v. Milwaukee Electric 43 La. Ann. 63. Instigating a young Ey. & Light Co., 164 Wis. 273, 159 child to do an injurious thing. Eosen- N. W. 916. To the same effect see berg v. Durfee, 87 Cal. 545. Nugent V. Brooklyn Heights E. Co., Where a suit is prosecuted on an 139 N. T. S. 367, 154 App. Div. 667; infant's behalf to recover for fraud 1 Addis. Torts, 713. practised upon him, it is no defence The youth of a person injured does that he has not rescinded the contract not extend the liability of the person or returned the property received, causing the injury, for the tortious Shuford v. Alexander, 74 Ga. 293. acts of his servants. Sherman v. Han- 38. Campany v. Brayton, 171 App. nibal E., 72 Mo. 62. And see post, D. 63, 156 N. Y. S. 1010. Part VI, eh. 4, As to prosecuting 39. Carter v. Towne, 98 Mass. 567. such suits by next friend, &e., see § 40. Byrne v. New Yoik Central E, ^5(j 83 N. Y. 620. 77 § 1034 INFANCY. 1218 A child between seven and fourteen years of age is presumed incapable of contributory negligence, and those seeking to apply the doctrine to him have the burden of showing his maturity and capacity.*^ Whoever, then, would avoid a suit like this must regulate his own discretion to suit the party with whom he deals, and act at all times with befitting prudence. Due average care, according to age, sex, and capacity, is all that the law exacts of any child of tender years, and not the average standard for adults, in judging of the child's contributory negligence; and wherever there is danger to which the infant exposes himself, it is material to consider whether his judgment and reflection were sufficiently matured to make that danger obvious.*^ Children under four can 'lardly be capable of prudence or rashness at all as to themselves. But there are cases where the child himself may have no right of action for injuries received, — as if he be technically a tres- passer, and meddling with property which does not belong to him. Of this rule an English case affords an example, where a boy, four years old, coming from school, saw a machine exposed for sale in a public place, and by direction of his brother, seven years old, placed his fingers within the machine whilst another turned the crank and thereby crushed his fingers;*' the court held that no action would lie. But if the trespass of the infant does not sub- stantially contribute to produce the injury, it would appear that no defence can be legally interposed on this ground.** Thus the mere fact that a youth gets upon a railroad car intending to ride without paying fare is held not to bring the case within the rule of trespass or contributory negligence.*'' And late American cases go so far as to assert that a young child, even though a technical trespasser, may recover for injuries where an adult might not; 41. Richmond Traction Co. v. Wil- in such ease. Brazil Bl. Coal Co. v. kinson, 101 Va. 394, 43 S. E. 622. Gaffney, 119 Ind. 455; Ehodes v. 42. Eailroad Co. v. Young, 83 Ga. Railroad Company, 84 Ga. 320; Emma 12; 120 N. Y. 526; IlUnois Central Cotton Seed Oil Co. v. Hale, 56 Ark. E. V. Slater, 129 HI. 91 ; Greenway v. 232 ; Texas & Pacific Ry. Co. v. Brick, Conroy, 160 Pa. St. 185; Eeed v. City 83 Tex. 598. of Madison, 83 Wis. 171 ; Brazil Bl. 43. Mangan v. Atterton, L. R. 1 Ex. Coal Co. V. Gaffney, 119 Ind. 455 ; 239. And see Hughes v. McFie, 2 H. 6. C. & 8. F. Ry. Co. v. McWhister, & C. 744; 33 L. J. (Ex.) 177. 77 Tex. 356; De Cordova v. Powter, 44. See Daley v. Norwich & WorceB- 123 N. Y. 645 In setting a child to ter R. R. Co., 26 Conn. 59-1. perform a dangerous serviee the above 45. Kline v. Central Pacific E. R. principle applies, and due warning is Co., 37 Cal. 400. See Townley v. Chi- at least incumbent upon the employer cago E., 53 Wis. 626. 1219 INJUBIES AND FEADDS. § 1035 and this upon the ground that the defendant had placed something dangerous or in a dangerous condition to which children were readily attracted." § 1035. Contributory Negligence of Parent, Protector, &c. Another and the more common class of exceptions consists of cases where the parents or other persons having charge of the child have been guilty of negligence. The rule of New York, Massa- chusetts, Illinois, and some other States, is that a child too young to have discretion for himself cannot recover if his protector fails to exercise ordinary care, but that he may if he uses such care as is usual with children of the same age, and the protector exercises ordinary care besides.*^ The English rule, as formerly understood, does not take into consideration the circumstance of the protector's negligence at all.** And in various American Statra the child's exercise of ordinary care appears alone to be regarded.*" The latest English cases, however, lean toward the doctrine first above stated. Thus, when the child, at the time of injury, was in the care of his grandmother, at a railroad station, where she had pur- chased tickets for both, it was held that the plaintiff was so identi- fied with his grandmother that, by reason of her negligence, no suit was maintainable against the company.'"' 46. Haesley v. Winoiia R., 46 Minn. 47. Wright v. Maiden & Melrose E. 233 ; City of Pekin v. McMahon Co., 4 Allen, 283 ; Hartfield v. Eoper, (1894) m.; Penso v. MeCormick, 125 21 Wend. 617; Downs v. New York Ind. 116. See rule stated in McCar- Central E. E. Co., 47 N. T. 83 ; Kerl ragher v. Eogers, 120 N. Y. 526. But v. Forgue, 54 HI. 482; Schmidt v. Mil- cf . eases where the child was debarred waukie, etc., E. E. Co., '23 Wis. 186 ; as a trespasser. Eogers v. Lees, 140 O 'Flaherty v. Union E. E. Co., 45 Mo. Pa. St. 475; McGuiness v. Butler, 159 70; Baltimore, etc., E. E. Co. v. State, Mass. 233, and cases cited; Mc- 30 Md. 47; Munn v. Eeed, 4 Allen, Bachern v. Boston & Maine Co., 150 431; Lehman v. Brooklyn, 29 Barb. Mass. 515. It is sometimes hard to 236; City of Chicago v. Starr, 42 HI. draw the line between a child's wrong- 174. doing and contributory negligence in 48. Lynch v. Nurdin, 1 Q. B. 29. such cases; but the rule of trespass Doubted, however, in Lygo v. New- should avail as a defence, within fair bold, 9 Exch. 302. limits, for unintentional injury. These 49. Eobinson v. Cone, 22 Vt. 213 ; tort suits are constantly on the in- North Pa. E. E. Co. v. Mahoney, 57 crease. Presumptions under the prin- Pa. St. 187 ; Bellefontaine, etc., E. E. ciple of a growing discretion during Co. v. Snyder, 18 Ohio St. 39^ ; Daley infancy have been already considered. v. Norwich & Worcester E. E. Co., 26 § 392. Yet these are presumptions Conn. 591. But see Bronson v. South- only; and in these civil actions the bury, 37 Conn. 199. law fixes no arbitrary rule. See Stone 50. Waite v. North-Eastern E. E. V Dry Dock E. E. Co., 115 N. T. 104. Co., 5 Jur. (N. S.) 936. § 1035 INFANCY. 1229 Where carelessness of a motlier or other protector is alleged, in authorizing an exposure of the child, it may sometimes be said that the father or proper parent or guardian had conferred no authority."^ To take common illustrations of this doctrinee: Allowing a child seventeen months or even two or three years old to be in the public street of a city without a suitable attendant is held to be a want of ordinary care on the parents' part, and if the child be run over there is no remedy.^^ But there are circum- stances under which it would be found that the parent or protectcw of such a child was exercising ordinary care ; while the child him- self would be treated, doubtless, as incapable of personal negli- gence at so early an age, so as to defeat his right of action/' Suf- fering a boy eight or ten years old to play on the street after dark is not necessarily negligence on the protector's part."* And even as to children four years of age or thereabouts, or perhaps younger, it is not expected that parents who have to labor for themselves and cannot hire nurses are to be without remedy for themselves or their children every time the child steps into the street unat- tended. What would be expected of the custodians of these tender beings is a degree of care or diligence suitable to the capacity of the child ; in other words, ordinary care and prudence in watching and controlling the child's movements."^ This care and prudence should be proportionate to known dangers or to dangers which ordinary diligence might have made known to the custodian."' As to a child some twelve years of age traveling with his mother, and injured in stepping between cars, the right to sue is not neces- sarily defeated for the reason that she permitted him to go into another car from that where she was sitting, and he did so."' In fact, the circumstances of each case are fairly to be weighed by 51. Pierce v. Millay, 62 111. 133. 54. Lovett v. Salem, etc., E. E. Co., 52. Kreig v. Wells, 1 E. D. Smith, 9 Allen, 557. 74; Casey v. Smith, 152. Mass. 294; 55. City of Chicago v. Major, 18 Johnson v. Eailway, 160 Pa. St. 647. Ili. 360; O 'Flaherty v. Union E. E. Otherwise as to leaving a child three Co., 45 Mo. 70; Baltimore, etc., E. E. years of age to play inside the gate, Co. v. State, 30 Md. 47; I. C. E. R. when, unknown to the parent, a large Co. v. Slater, 129 111. 91. hole had been dug just outside into 56. Louisville E. v. Shanks, 132 Ind. which the child fell. Creed v. Ken- 395. As to the unforeseen use of a dall, 156 Mass. 291. toy air-gun bought by the parent, see 53. See Mangam v. Brooklyn E. E. Harris v. Cameron, 81 Wis. 239 ; Co., 38 N. T. 455; Schmidt v. Mil- Chaddock v. Plummer, 88 Mich. 225. waukie, etc., E. R. Co., 23 Wis. 186. 57. Downs v. N. Y. Central E. Co., 47 N. T. 83. 1221 INJUBIBS AND FEATJDS. 1035 the jury. No child capable of running about can be kept tied up in the house and subjected to constant watch. The rule is to be reasonably and beneficially applied; and the circumstances are in general for the jury.^' And wherever the child himself exercised due care and prudence in fact, the care and diligence of a protector might well become immaterial in a suit for the child's own injury."* Causa proxima non remota spectatur is the maxim usually ap- plied in cases of torts, whether the plaintiff be infant or adult. But where the tort is occasioned by the negligence of one person, 88. The principle may be further il- lustrated by an lUinois case. A heavy counter, some eighteen feet long and three feet high, which had been placed across the sidewalk in one of the principal thoroughfares of Chicago, remained so for two or three weeks, when some children were climb- ing upon it and thereby caused it to fall over. One of the children, six years old, was injured and died, and the parents sued the city, under stat- ute, for damages. The court held, upon the state of facts before them, that the action would not lie because there was negUgenee shown on both sides, — on the part of the city in al- lowing the counter to remain in that situation, and on the part of the parents in permitting the child, at his age, to roam the crowded thorough- fares of the city at a great distance from his home. The negligence on the part of the city was leas than that attributable to the child's parents, and therefore there could be no re- covery. City of Chicago v. Starr, 42 HI. 174. In this case it was further suggested that the degree of careless- ness is not to be judged from a single fatal accident; but that the question 13 rather what would have been the course of a prudent person prior to the accident. And the habitual care- lessness of the parents in allowing the child to go about unattended was con- gidered material. But see Kerr v. Porgue, 54 HI. 483, limiting the rule. Perhaps the course most consistent with the latest authorities is to leave the question of negligence, so far as possible, with the jury, upon the state of facts presented. See further, Weeks v. Pacific K., 56 Cal. 513; Murley v. Roche, 130 Mass. 330; Wynne v. Conklin, 86 Ga. 40 ; § 428 ; MeCarragher v. Rogers, 120 N. T. 526; Sprague v. Atlee, 81 la. 1; Hig- gins V. Deeney, 78 Cal. 578. 59. Chicago R. v. Robinson, 127 111. 9. A statute suit by the administra- tor of a child who was killed is not debarred by the consideration that a negligent parent will inherit. Wy- more v. Mahasha County, 78 la. 396. In Newman v. Phillipsburg R., 52 N. J. L. 446, the above doctrine of imputing the misfeasance of a child's custodian to the child itself so as to defeat the latter 's right of action is deemed to be an interpolation into the law; vrith chief pertinence, per- haps, where the child himself was ac- tually careful. See also Chicago City Ey. Co. v. Robinson, 127 HI. 9; Westbrook v. M. & O. R. R. Co., 66 Miss. 560; Railway Co. v. Harsch, 6ff Miss. 126. Such parental misfeasance ought to bar the parent 's own suit, at all events; even though it should not that of the child. Chicago City Ry. Co. V. Wilcox, 138 m. 370. The doctrine of imputed negligence has been repudiated in various States. Trumbo 's Adm 'r v. City St. Car Com- pany, 89 Va. 780; cases supra. § 1035 INF- the infant is not debarred of his right to sue the other party who shared in it. As where a child too young to take care of himself — there being, we shall suppose, no negligence on the part of the parent — is in danger of being run over by a steam-engine, and some stranger catches him up, meaning to save his life, and im- prudently rushes over the track and falls with the child. An accident so occasioned might, under some such circumstances, give a right of action against either the stranger or the railroad com- pany, or against them jointly."" But for damage to the person involving a permanent injury reaching beyond one's minority, the minor is entitled in his own right to recompense for such prospective loss.°^ He may also recover for physical suffering as the result of injury."^ A double recovery for loss of the child's services during minority is not permitted.*' 60. See North Pa. E. E. v. Ma- honey, 57 Pa. 187. The views ex- pressed in this ease may not meet, in all respects, the concurrence of other courts; but the principle extracted in the text seems to the writer a correct one. See further, as to slander of an infant, Hopkins v. Virgin, 11 Bush, 677. As to injury done to a minor servant, see De Graff v. N. Y. Central E., 76 N. Y. 125; Cooper v. State, 8 Baxt. 324; post, Part VI. A parent who knowingly allows his young child to remain in a dangerous employment without objection debars himself of suit by his own negligence. Kilgove V. Smith, 123 Pa. St. 57. But where on employs a minor know- ingly in a dangerous business with- out his father's consent or knowledge, he becomes liable to the father's suit in case of injury. Texas E. v. Brick, 83 Tex. 526. Concerniug the child's knowledge of danger as affectmg his own suit for damages, see § 428. The act of the parent entitled to his services in bringing an action for him as his next friend and in her pe- tition asking recovery for him for loss of time, has been held such a waiver of the right of his services as to enable him to recover for them. Abeles v. Bransfield, 19 Kan. 16. The infant may recover for loss of time where he has no legal or natural guardian. Lynchburg Cotton Mills v. Stanley, 102 Va. 590, 46 S. E. 908; Manufacturers, etc., Co., 228 111. '187, 81 N. E. 841. 61. Camp V. Hall, 391 Pla. 535, 22 So. 792 ; Central E. E. v. Brimson, 64 6a. 475, and eases cited; Manufac- turer's, etc., Co. V. White, 228 HI. 187, 81 N. E. 841; Helm v. Phelps, 157 Ky. 795, 164 S. W. 92; Cincinnati, N. O. & T. P. Ey. Co. V. Troxell, 143 Ky. 765, 137 S. W. 543; Lamkin & Pos- ter V. Ledoux, 101 Me. 581, 64 A. 1048; Cameron Mill & Elevator Co. V. Anderson, 98 Tex. 156, 81 S. W. 282, 78 S. W. 8 ; Cameron Mill & Ele- vator Co. V. Anderson, 34 Tex. Civ. App. 105, 1 L. E. A. 198 ; Dublin Cot- ton Oil Co. V. Jarrard, 91 Tex. 289, 42 S. W. 959, 40 S. W. 531; Kruck v. Wilbur, etc., Co., 148 Wis. 76, 133 N. W. 1117; Sharon v. Winnebago Furni- ture Mfg. Co., 141 Wis. 185, 124 N. W. 299 ; Part III, ch. 4, supra. 62 Cincinatti, etc., E. Co. v. Troxell, 143 Ky. 765, 137 8. W. 543. 63. Baker v. Eailroad Co., 91 Mich. 29'8. See Judd v. Ballard (1894), Vt. 1223 INJUEIES AND FRAUDS. § 1035a § 1035a. Arbitration, Compromise and Settlement of Injuries Committed or Suffered by Infants. While an infant is liable for torts, it does not follow that his contracts in compensation for torts are binding. In fact, his sub- mission to an award, and n'otes given or money paid in pursuance thereof, would follow the principle of void and voidable and bind- ing contracts ; *^ and, as we may presume, a note or other security given to settle damages may not be sued upon without inquiry into its consideration, but it shall be good to the same extent as the tort which constituted its basis.®^ And on the other hand, where he releases or compromises for any injury himself has sustained, the same rule applies.*' The parent cannot sue, as such, for the child's injuries; neither can he make a binding compromise or release, except as to his own demand upon the defendant.*^ Emancdpation will enable the minor to recover for loss of tiraT or wages during minority.'* 64. MiUsaps v. Estes, 137 N. 0. 535, 50 S. E. 227, 70 L. E. A. 170, 107 Am. St. E. 496; Baker v. Lovett, 6 Mass. 78, 4 Am. Dee. 88 (holding that at common-law such a submission -voidable) ; Halks v. Deal, 3 MeCord, 257; Pitcher v. Turin Plank Eoad Co., 10 Barb. 436; Ware v. Cart- ledge, 24 Ala. 622. 65. See Bay v. Tubbs, 50 Vt. 688; supra, § 1019. The withdrawal of a suit against a minor child, without further costs, is sufficient considera- tion for the father's note in settle- ment. Maseolo v. Montesanto, 61 Conn. 50. 66. Baker v. Lovett, 6 Mass. 78. Cf. CadwaUader v. McClay, 37 Neb. 359, as to attempting fraud in set- tling a suit. Infant's right to sue for wrong is barred by limitations. Ela V. Ela, 158 Mass. 54. 67. See Loomis v. CUne, 4 Barb. 453; Passenger E. E. Co. v. Stutler, 54 Pa. St. 375; 83 Tex. 623. But see Merritt v. WiUiams, 1 Harp. Ch. 306. Such is the general rule as to next friend. § 1055; Tripp v. Gifford, 155 Mass. 108; O'Donnell v. Broad, 149 Pa. St. 24. There should be judicial sanction to such compromise. 68. Farrar v. Wheeler, 145 P. 482; Harris v. Crawley, 17 Det. Leg. N. 303, 126 N. W. 421; Nemorofskie v. Interurban St. Ey. Co., 87 N. T. S. 463; Lieberman v. Third Ave. E. Co., 54 N. T. S. 574, 25 Misc. 296 (mod., 55 N. T. S. 677, 25 Misc. 704) ; Har- ris Irby Cotton Co. v. Duncan (Okla.), 157 P. 746. § 1036 IITFAHCT. J^jMi CHAPTER ,V. iATIFICATION AND AVOIDANCE OF INFANT's ACTS AND CONTEAOTS. BBOTION 1036. 1037. 1038. 1039. 1040. 1041. 1042. 1043. 1044. 1045. 1046. 1047. 1048. 1049. 1050. 1051. 1052 1053. 1054. Nature of Defence of Infancy. Eule Affected by Statute; Lord Tenterden's Act; Other Statutes. Bule Independent of Statute; American Doctrine. What Constitutes DisafiSrmanee. Time, Nature and Effect of Batification and DisafSrmanee. Instances. Conflicting Dicta. Summary of Doctrine. Eule as to Conveyance of Infant's Lands, Lease, Mortgage, &e. Infant 's Conveyance, Lapse of Time, &c. Batification, as to an Infant's Purchase, &c. Executory Contracts, &e.. Voidable During Infancy; How Af&rmed or DisafSrmed. Bule Applied to Infant's Contract of Service. Parents, Guardians, &c.. Cannot Bender Transaction Obli- gatory upon the Infant, &e. Miscellaneous Points; as to New Promise; Whether Infant Affirming Must Know Hia Legal Eights. Whether Infant Who Disaffirms Must Bestore Consideration. Avoidance Through Agents, &c. Batification, &c., as to Infant Married Spouse. Eules; How Par Chancery May Elect for the Infant. § 1036. Nature of Defence of Infancy. That indulgence which the law allows infants, to secure them from the fraud and imposition of others, can only be intended for their benefit, and therefore persons of riper years cannot take advantage of such transactions. The infant may rescind or dis- aflSrm his own deed or contract ; but the adult with whom he deals is held bound meantime, unless the transaction be void, and not voidable,®' or one of those contracts which bind an infant from the outset.^" And since, as we have observed, his conveyance is not to be decisively repudiated or ratified till his minority ends, while his personal property transactions or personal transactions may be avoided any time though not ratified,'^ the act of ratifying or affirming bears differently in its application. 69. Smith v. Bowen, 1 Mod. 25; 2 Kent, Com. 236; Warwick v. Bruce, 2 M. & S. 205; Brown v. Caldwell, 10 8. & B. 114; supra, ch. 2; Dentler V. O 'Brien, 56 Ark. 49. 70. Supra, ch. 3. 71. Supra, § 1015. 1225 KATIFICATION AND AVOIDANCE. § 1036 But the infant may confirm his voidable contract on arriving at full age ; and if he does so by such writings, words, or acts as amount to a legal ratification or aflirmance, he will become liable then and thereafter.'^ Infancy is an affirmative defence,'* the presumption being that the parties are of full age.'* It cannot be availed of by objection to the complaint.'^ It must be specially pleaded.'" The rule is the same whether set up in direct defence or interposed collaterally." Infancy may be specially pleaded in bar.'* The plaintiff re- plies either that the defendant was of age, or that the goods were necessaries, or that he confirmed the contract when he came of age." If there be several defendants, the party who is a minor should plead his infancy separately. Infancy is an issuable plea ; and it may be pleaded with other pleas without leave of court.'" Where there are several issues, one of which is upon the plea of infancy, that being found for the infant, the whole case is disposed of.*^ The burden is on the infant to show the fact of infancy affirmatively,'^ and, according to some courts, by clear and con- 72. Winchester v. Thayer, 129 Mass. 129. 73. Friorson v. Irwin, 5 La. Ann. 525; Garbarisky v. Simkin, 36 Misc. 195, 73 N. Y. S. 19'9; Eeynolds v. Alderman, 103 N. Y. 8. 863, 54 Miac. 73. 74. Moore v. Sawyer, 167 F. 826; Pitcher v. Laycock, 7 Ind. 398. 75. Eeynolds v. Alderman, 54 Mise. 73, 103 N. Y. S. 863. 76. Sanders v. Williams, 163 Ala. 451, 50 So. 893; Board of Trus- tees of La Grange Collegiate In- stitute V. Anderson, 63 Ind. 367, 30 Am. Bep. 224; Pitcher v. Lay- cock, 7 Ind. 398; Daugherty v. Ee- veal, 54 Ind. App. 71, 102 N. E. 381; Mullins V. Watkins, 146 Ky. 773, 143 8. W. 370; Chicago Bldg. & Mfg. Co. V. Higginbotham (Miss.), 29 So. 79; Bill V. Wolinsky, 123 N. Y. S. 290. But see ThraU v. Wright, 38 Vt. 494 (holding that evidence of infancy is competent under the general issue). 77. Board of Trustees v. Anderson, €3 Ind. 367, 30 Am. E. 224. 78. Daugherty v. Eeveal, 54 Ind. App. 71, 102 N. E. 381; Clemson T. Bush, 2 Binn. 413 Hillegass v. Hille- gass, 5 Barr, 97. 79. See as to proof, Freeman v. Nichols, 138 Mass. 313. 80. 15 & 16 Vict., ch. 76, § 84. See Delafield v. Tanner, 5 Taunt. 856; Dublin & Wicklow E. E. Co. v. Black, 8 Exch. 181. 81. Eohrer v. Morningstar, 18 Ohio, 579. In New York infancy may be given in evidence under the general issue. Wailing v. Toll, 9 Johns. 141. 82. Moore v. Sawyer, 167 F. 826; Barker v. Fuestal, 103 Ark. 312, 147 S. W. 45; Pitcher v. Laycock, 7 Ind. 398; Stringer v. Northwestern, etc., Ins. Co., 82 Ind. 100; County Board of Education v. Hensley, 147 Ky. 441, 144 S. W. 63; Edgar v. Gertison (Ky.), 112 S. W. 831; Friorson v. Irwin, 5 La. Ann. 525; Schweitzer v. Bird (Mich.), 170 N. W. 57; Gar- barisky V. Simkin, 36 Misc. 195, 73 N. Y. S. 199; Bill V. WoUnaky, 123 N. Y. S. 290; Bice v. Euble, 39 Okla. 51, 134 P. 49; Sharshontay v. Hicks (Okla.), 166 P. 881; Gillam v. Bichart § 1037 INFANCY. 1226 vincing evidence/* which must relate to the time of the transactioii to be avoided.** The question of the defendant's age, in such oaae, is for the jury.^° § 1037. Rule Affected by Statute ; Lord Tenterden's Act ; Other Statutes. Much of the discussion on this point is now dispensed with, or rather diverted, in England, by a short statute to the effect that " no action shall be maintained whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification, after full age, of any promise or simple contract made during infancy, unless such promise or rati- fication shall be made by some writing, signed by the party to be charged therewith." *° This statute is known as Lord Tenterden's Act. Here is a clear, precise, and definite rule; and any ap- parent want of equity is compensated by the certainty with which a very troublesome subject is managed, one which has so constantly led to unprofitable litigation. The same or similar provisions are to be found in the laws of some of our States.*' But even statutes will raise legal difficulties. And the difficulty which arises under this particular act is to distinguish ratification from a new promise. What is meant by a " ratification " in the words of this statute ? The Court of Exchequer, some years since, admitting, in the course of argument, that the statute made a dis- tinction between ratification and new promises, gave it as their opinion that any act or declaration which recognizes the existence (OHa.), 150 p. 1037; Jordan t. Jot- defence is made out. Garbarisky v. dan (OMa.), 162 P. 758; MeKeever Simkin, 36 Misc. 195, 73 N. T. S. V. Carter (Okla.), 157 P. 56; Mc- 199; Waterman v. Waterman, 42 Gauley v. Grimm, 115 Va. 610, 79 Misc. 85, N. T. S. 377. 5. E. 1041; Lambrecht v. Holsaple, In an action where the defendant 164 Wis. 465, 160 N. W. 168. pleaded infancy at the time of the 83. Moore v. Sawyer, 167 F. 826; transaction, evidence that at such time McCauley v. Grim, 115 Va. 610, 79 he had a beard of several weeks' 6. E. 1041. growth on his face and appeared to 84. Stringer v. Northwestern, etc., be a man of 22 or 23 years of age, Ins. Co., 82 Ind. 100; Board of Bdu- was held suflcient to warrant the cation v. Hensley, 147 Ky. 441, 144 jury in finding that he was then of S. W. 63; Moore v. Moore, 74 N". J. age. Johnson v. Brown (Tex. Civ.), Eq. 733, 70 A. 684. 65 S. W. 485; Lambrecht v. Holsaple, 85. Where, under a plea of infancy, 164 Wis. 465, 160 N. W. 168. there is no independent evidence of 86. Stat. 9 Geo. IV., eh. 14, § 5 the fact, the jury may consider the (1828). physical appearance of the defendant, 87. See Thnrlow v. Gilmore, 40 Me. in order to determine whether the 378. 1227 EATIFICATION AND AVOIDANCE. § 103T of a promise as binding is a ratification of it; and that the statute " ratification " goes so far as to comprehend such a ratification as would make a person liable as principal for an act done by another in his name.*^ And hence certain letters written by the defendant in reference to payment of his debt out of his money in the hands of a third party were held binding. More lately this definition of ratification was reconsidered by the same court in another case, where the correspondence was over a dishonored bill of exchange, and another person, not the infant, was to be primarily liable; and the judges were divided in opinion. But the disposition seemed to be to define ratification anew, as a willing admission that the party is liable and bound to pay the debt arising from a contract which he made when an infant.'® Still later a man, being of age, signed the following statement at the foot of an account of the items and prices of goods furnished to him while an infant by the plaintiff: " Particulars of account to the end of 1867, amoimting to £162 lis. 6d. I certify to be correct and satisfac- tory." It was held that this was not a sufficient ratification under the statute, because these words did not really admit the debt to be a debt existing and binding upon the defendant.'" Some statutes regard the allowance of only a reasonable time after attaining majority for disaffirmance of a contract or con- veyance made in infancy, requiring the infant both to disaffirm and to make restitution.®^ Others seek to prevent sales of the minor's property for some time after he reaches majority.®^ 88. Harris v. Wall, 1 Exch. 123. marry, see Ditcham v. Worrall, 5 C. 89. Mawson v. Blane, 10 Exch. 206 ; P. D. 410 ; Northcote v. Doughty, L. 26 B. L. & Eq. 560. See, further, E. 4 C. P. D. 385. As to ratifying Smith, Contr. 287. Lord Ellenborough as "a debt of honor," see Maccord considered it more correct to say, in v. Osborne, 1 C. P. D. 569. And see general, that the infant makes a new In re Onslow, L. E. 10 Ch. 373. The promise alter he comes of age. Cohen inclination of these late cases is to v. Armstrong, 1 M. & S. 724. As to insist upon something like a fresh wht is a aufScient compliance with promise in order to bind. the statute, see Hartley v. Wharton, 90. Eowe v. Hopwood, L. E. 4 Q. 11 Ad. & El. 934; Hyde v. Johnson, B. 1. 2 Bing. N. C. 778 ; Hunt v. Massey, 91. Wright v. Germain, 21 la. 585 ; 5 B. & Ad. 902. Jones v. Jones, 46 la. 466; Hawes v. See also Infants' Belief Act of Burlington By. Co., 64 la. 315. Dis- 1874 (37 & 38 Vict., eh. 62) ; Smith afSrmance under the code should be V. King (189^), 2 Q. B. 543. As to within a reasonable time. Childs v. what constitutes ratification or a fresh Dobbins, 55 la. 205 ; Green v. Wild- promise upon majority, under English ing, 59 la. 679. statutes, of an infant's promise to 92. Soullier v. Kern, 69 Pa. St. 16. § 1038 INFANCY. 1228 § 1038. Rule Independent of Statute; American Doctrine. Independently of all statutes, however, the question has been asked again and again, what language and what conduct on the part of the infant attaining to majority will suffice to give binding force to his acts originally voidable. The American cases on this point are very numerous. And it must be confessed that the more this subject has been discussed, the less it appears to be under- stood. Two principles are evidently in conflict : the one, that an infant should be protected against his own imprudence while under a disability ; the other, that bona fide creditors ought not to be cheated- Some cases have given more prominence to the first principle, others to the second. There cannot be much doubt that at the time Lord Tenterden's Act was passed, the English rule was, that an infant might, by his general conduct, independently of a precise promise or new contract, on his part, render himself liable for his contracts made while an infant. °^ The statute was passed to change this rule. On that point we need not dwell. This does not bind American courts, it is true, for they had adopted, in many instances, another rule of the common law, to which they were at liberty to adhere, in spite of the later English decisions ; since it was the rule our ancestors brought over with them. l^ow, what is the American doctrine ? We take a case decided some years ago in Massachusetts, where an infant had made a promissory note, and after majority admitted several times that he owed the debt, and said he would pay it when he could. Says the court : " It has long been settled that a direct promise, when of age, is necessary to establish a contract made during minority, and that a mere acknowledgment will not have that effect."** We take still another, decided in New York only a little later. Says a judge of the Court of Appeals, after a most exhaustive review of the cases : " I think that the course of decision in this Stabs authorizes us to assume that the narrow and stringent rule, for- merly enunciated, that to establish the contract, when made in infancy, there must be a precise and positive promise to pay the particular debt, after attaining majority, is not sustained by the more modem decisions." '" Courts taking this view hold that an 93. See Goode v. Harrison, 5 B. & 95. Per Davies, J., Henry v. Boot, Aid. 147; Smith, Contr. 2S3, 284. 3 N. T. 545 (1865). 94. Proetor v. Sears, 4 Allen, 95 (1862), per Metealf, J. 1229 BATIFICATION AND AVOIDAMCE. § 1038 act from which a ratification is sought to be inferred must be positive,** and inconsistent with any other intention.*' An express adoption made after majority is sufficient,** even though no words of express promise are used.*' Time has not with us lessened the force of Chancellor Kent's observation, many years ago, that " the books appear to leave the question in some obscurity, when and to ■what extent a positive act on the part of the infant is requisite." * It may be remarked that a great change was gradually developed in the law of infancy, by making various contracts and transactions voidable which before were deemed void.* This might reasonably be thought to have introduced a new element into the consideration of such cases; the result tending towards freedom in the courts, and enabling them to repudiate artificial refinements and do sub- stantial justice. It certainly throws upon the modem courts a greater responsibility than formerly in ruling between complete and incomplete ratification ; or (if legal precision requires another expression) in determining whether a new promise has passed 96. Coe V. Moon, 260 lU. 76, 102 N. E. 1074. Payments after majority on a voidable contract have been held evidence of an intention to ratify. Eubin V. Strandberg (HI.), 132 N. E. 808; Healy v. Kellogg, 145 N. T. S. 943; Syck v. Hellier, 140 Ky. 388, 131 S. W. 30; International, etc., Co. V. Connelly, 206 N. Y. 188, 99 N. E. 722. Payments made to a person out of the payor's bounty after she has at- tained majority have been held not a ratification, though according to the terms of a voidable contract, have been held not a ratification. Parsons v. Teller, 188 N. Y. 218, 80 N. E. 930. See also International Text-Book Co. v. Connelly, 206 N. Y. 188, 99 N. E. 722, 42 L. E. A. (N. S.) 1115 (holding that payment after majority of a sum stipulated in a contract made dur- ing infancy is not necessarily a rati- fication). 97. An infant does not ratify merely by releasing from attachment goods purchased while a minor. Lamkin & Foster v. Ledoux, 101 Me. 581, 64 A. 1048 Lacy v. Pixler, 120 Mo. 383, 35 S. W. 206. Where an infant executed a writ- ten contract of guaranty, and after he became of age wrote asking that an itemized bill be sent to him, there was no such "ratification" as to make him liable upon the guaranty. H. C. Miner Lithographing Co. v. Santley, 150 N. Y. S. 71; Hobbs v. Hinton, etc., Co., 74 W. Va. 443, 82 8. E. 267. 98. Walker v. Arkansas Nat. Bank of Hot Springs, 256 P. 1; Bell v. Swainsboro, etc., Co., 12 Ga. App. 81, 76 S. E. 756; Whitney v. Dutch, 14 Mass. 457, 7 Am. Dee. 229 ; Lynch V. Johnson, 109 Mich. 640, 67 N. W. 908; McCune v. Goodwillie, 204 Mo. 306, 102 S. W. ff97; Pedro v. Pedro, 127 N. Y. S. 997, 71 Misc. 296 ; In re Kane's Estate (Wis.), 168 N. W. 403. 99. Thompson v. Lay, 21 Mass. 48, 16 Am. Dec. 335; Thompson v. Lay, 4 Pick (Mass.) 48, 16 Am. D. 325 (where the words relied on were, "I do ratify and confirm the debt"). 1. 2 Kent, Com. 237. 2. See ch. 3, supra. § 1039 i.^(i.'AK(;y. 1230 from the person after attaining full age. But this change has not always been kept in view. In jSTew York the modem doctrine is that ratification or confirmation of the contract made in infancj' will bind the party if it take place after his coming of age; that a new promise, positive and precise, equivalent to a new contract, is not now essential; but that a ratification or confirmation of what was done during the minority is sufficient to make the con- tract obligatory.^ And it is well observed that the words " ratify and confirm " necessarily import that there was something in existence to which the ratification or confirmation could attach, entirely ignoring therefore the notion that an infant's obligations or contracts were nullified by the state of infancy.* But it must be borne in mind that in some other States the rule is quite dif- ferent. So that we have nothing which may safely be pronounced the American doctrine upon this subject. § 1039. What Constitutes DisaiBrniance. 'No particular form of disaffirmance is required by the cases." There must be an intention to repudiate the contract," but notice of such intention is not usually required,' but if required, should be given to the person contracting with the infant, and not to an assignee of the contract.* The act of disaffirmance must be un- equivocally and unmistakably such.' It may be said generally that any act showing unequivocally a renunciation of, or a dis- position not to abide by, a voidable contract, is sufficient to dis- affirm it." A conveyance, in due season after majority, to a third person has been taken to be sufficient disiaffirmance of the minor's deed, especially when coupled with express notice of disaffirmance, and followed by the grantee's entry. ^^ And another means of disaffirm- 3. Henry v. Eoot, 33 N. Y. 526. 104 P. 320 ; Putnal v. Walker, 61 Fla. 4. 16. 720, 55 So. 844; Shroyer v. Pittenger, 5. Stanhope v. Shambow, 54 Mont. 31 Ind. App. 158, 67 N. E. 475. 360, 170 P. 752; Groesbeck v. Bell, 10. Strain v. Hinds, 277 HI. 598, 1 Utah, 338. 115 N. E. 563. The refusal of a minor 6. Smoot V. Eyan (Ala.), 65 S. 828; to sign a note and mortgage a second Strain v. Hinds, 277 111. 598, 115 N. E. time has been held not a disafBrm- 563. anee. Brown v. Staab (Kan.), 176 7. Highland v. Tollisen, 75 Ore. P. 113; Stanhope v. Shambow, 54 578, 147 P. 558. Mont. 360, 170 P. 752; Casement v. 8 Spencer v. Collins, 156 Cal. 298, Calaghan (N. D.), 159 N. W. 77; 104 P. 320. Grissom v. Beidleman, 35 Okla. 343, 9. Smoot V. Ryan (Ala.), 65 So. 129 P. 853, 44 L. E. A. (N. S.) 411. 828; Spencer v. Collins, 156 Cal. 298, 11. Blake T. Holandsworth (W. 1231 EATUriCATION AKD AVOIDANCE. § 1039 ing the conveyance of one's lands during infancy consists in bring- ing an ejectment smit." Wlietlier it is necessary that an entry upon the land to regain seisin be made to perfect the title of the person intending to dis- affirm his conveyance as infant, does not clearly appear from the authorities. The old rule was that in order to avoid a feoffment this vyas necessary. But conveyance by feoffment has been super- seded by other methods of transferring real property in England, and it is not in use here. In some of the earlier New York cases, where an infant had sold wild lands to other persons, and had, after coining of age, conveyed by similar deed the same lands to another, it was held that the first conveyance had been legally avoided, and the last purchaser was entitled to the property.'* A case before the Supreme Court in the United States is supposed to sustain the same view; only arguendo, however, for in point of fact the person making the second conveyance remained in posses- sion all the time ; and, as the court observed, " could not enter upon himself." '* FoUawing the indication of these three im- portant cases, several of the State courts have since held that a conveyance by an infant of the same land to another person, after he comes of age, effectually avoids a deed of bargain and sale made in infancy; and this without entry on his part.'^ But the 'New York courts have latterly been disposed to retrace their stepe; i^luctance to do injury to others, doubtless, contributing to in- crease the strictness of requirements on the infant's part. Their present rule appears to be that, unless the lands were wholly vacant, or the infant remained in possession, he must make an entry or do some other act of equal notoriety before he can pass title by a Va.), 76 S. E. 814, 43 L. E. A. (N. 12. Craig v. Van Bebber, 100 Mo. S.) 714. See Prout v. Wiley, 38 Mich. 584. 164- Biggs V. risk, 64 Md. 100; 13. Jackson v. Carpenter, 11 Johns. Haynes v. Bennett, 53 Mich. 15 ; Daw- 639; Jackson v. Burchin, 14 Johns., son V. Helmes, 30 Minn. 107. If, 124. See Met. Contr. 44, 45, where after coining of age, an infant quit- this subject is discussed, claims land conveyed by him during 14. Tucker v. Moreland, 10 Pet. 58, his minority to another, he effectually per Story, J. disaffirms. Bagley v. Pleteher, 44 15. Hoyle v. Stowe, 3 Dev. & Bat Ark. 153 (one judge dis.). But as 320; Pitcher v. Laycock, 7 Ind. 39S to a mortgage see Buchanan v. Griggs, McGan v. Marshall, 7 Humph. 121 18 Neb. 121. "Wherever the later deed Hughes v. "Watson, 10 Ohio, 127 may be reconciled with that made in Peterson v. Laik, 34 Mo. 541; Haynes infancy, so that the two may stand v. Bennett, 53 Mich. 15. together, disaffirmance should not be predicated of the transaction. § 1039 INFANCY. VJiH-A second conveyance.^" There is no authority in the New England States to oppose this later doctrine; nor do we find any in the Middle States.^' But doubt is removed by statutes, in Maine, Massachusetts, and some other States, which permit parties to recover land by writ of entry without making actual entry. And it is held in Maine that such a writ dispenses with entry and amounts to disaiBrmance.^' To render a subsequent conveyance an act of dissent to the prior conveyance of an infant, it must be inconsistent therewith, so that the two cannot stand together.^' There may be other acts of the late infant equivalent to dissent; such as giving notice of dis- affirmance, followed by a suit, if need be, for repossession or restitution of rights."" Express acts of disaffirmance or repudiation leave no doubt of intention on this point; and they, of course, suffice to avoid the contract made during infancy. As in a sale of his land, where one gives notice that he considers the bargain void, and offers to return the consideration.^^ And so generally where the transaction is such that the late infant must take the initiative or else forfeit his right, being out of possession. There are m'any other ways in which one may clearly disavow his intention of carrying into effect 16. Dominiek v. Michael, 4 Sandf . forcing a lien on real estate for work 421; Bool V. Mi3, 17 Wend. 133; and materials furnished during in- Voorhies v. Voorhies, 24 Barb. 150. fancy, see McCarty v. Carter, 49 HI. 17. See Eoberts v. Wiggin, 1 N. H. 53. But acquiescing in the settlement 75; Worcester v. Eaton, 13 Mass. of boundaries after coming of age 375. Bee also Harrison v. Adeoek, binds the infant. George v. Thomas, 8 Ga. 68; Moore v. Abemethy, 7 16 Tex. 74. Blackf. 442. 19. Leitensdorfer v. Hempstead, 18 18. Chadbourne v. Eackliff, 30 Me. Mo. 26ff; McGan v. Marshall, 7 354. And see Cole v. Pennoyer, 14 Humph. 121. And see § 438. 111. 158. Judge Metcalf appears to 20. Eiehardson v. Pote, 93 Ind. 423. doubt the correctness of the rule in A minor remainder-man will not be Jackson v. Carpenter, even as to cases excused from disaflrming his deed of wild lands. See Met. Contr. 45, 46, within a reasonable time after ma- and eases cited. A bill to enforce jarity, merely because his right to Bpecifie performance of an infant's bring ejectment for the land has not contract to sell real estate should not accrued. Nathans v. Arkwright, 66 be brought before a reasonable time Ga. 179. has elapsed, after the infant attains 21. See Willis v. Twombly, 13 Mass. majority, for him to affirm or dis- 204; Aldrich v. Grimes, 10 N. H. affirm. Walker v. ElUa, 12 111. 470; 194; WilUams v. Norris, 2 Litt. 157; Petty V. Eoberts, 7 Bush, 410; Griffis Hill v. Anderson, 5 S. & M. 216; V. Younger, 6 Ired. Eq. 520; Carrel McGiU v. Woodward, 3 Brev. 401; V. Potter, 23 Mich. 377. As to the Scranton v. Stewart, 52 Ind. 69, 92. ratification necessary to allow of en- 1233 IIATIFICATION AND AVOIDANCE. § 1039 the contract made during infancy ; and if the transaction appears to have been made shortly before reaching majority, and not to be disadvantageous to the infant, his disavowal ought not to be inferred from his silence." But an infant who leases or hires premises may leave them at any time during infancy and free himself from all further liaibility for rent.^^ But an act of the late infant, clearly showing his intention not to be bound by his mortgage, is a sufficient avoidance of it.''* A prompt declaration of his intention to disaffirm, and a conveyance to another, will answer.''^ The execution of a war- ranty deed to another without reservation of the mortgage incum- brance imports a disaffirm^ance of the mortgage ; "^ but the execution of a quitclaim deed does not." As to the infant's mortgage, it may be further remarked that a minor cannot avoid a mortgage given to secure either real or personal property purchased by him without avoiding the sale also.^* In short, there is, according to the best authorities, a well- recognized distinction between the nature of those acts which are necessary to avoid an infant's deed, and those which are sufficient to confirm it. The deed cannot be avoided except by some solemn act, or, as some assert, an act equally solemn with the deed itself ; 22. Davis v. Dudley, 70 Me. 266. of ownership or such as indicate a Non-assertion of rights in a court of claim of title adverse to the transac- justiee, where the courts are closed tion of infancy. Tunison v. Chambly, during war, cannot be construed into 88 111. 378. Suing to set aside the confirmation. Thompson v. Strickland, transaction is a disaffirmance, Gil- 52 Miss. 574. Nor can statements of lespie v. Bailey, 12 W. Va. 70. And record evidently referring to personal see §§ 1046, 1047, post; Baker v. Ken- property be taken as confirmation of nett, 54 Mo. 82. a conveyance of real estate. Illinois 23. Gregory v. Lee (1895, Conn.). Land Co. v. Bonner, 75 III. 315. Equiv- 24. State v. Plaisted, 43 N. H. 413. ocal acts very shortly after attaining 25. White v. Flora, 2 Overton, 426 ; majority should not be construed Hoyle v. Stowe, 2 Dev. & Bat. 320. readily into a binding ratification or 26. Dixon v. Merritt, 21 Minn. 196; election not to avoid. Tobey v. Wood, Allen v. Poole, 54 Miss. 323. 123 Mass. 88. Nor a transaction only 27. Singer Man. Co. v. Lamb, 81 remotely connected with the transac- Mo. 221. The warranty deed of a tion to which he was a party in in- minor does not disaffirm his mortgage fancy. Todd v. Clapp, 118 Mass. 495. because he cannot disaffirm while an Notice of disaffirmance, given in infant. Tb. writing, will suffice. Scranton v. Stew- 28. Heath v. West, 8 Fost. 101 ; art, 52 Ind. 69, 92. Especially if this Dana v. Coombs, 6 Greenl. 89. And be consistenly followed up by acts see § 1046. 78 § 1039 INFANCY 1234 but acts of a character which would be insuflBcient, to avoid such a deed may amount to an affirmance of it.^' Such acts as notice of disaffirmance, and then bringing an appropriate suit, amount fairly to avoidance of an infant's con- tract, in various instances.'" Bringing an action to recover back what the infant has parted with is usually a sufficient disaffirmance.'^ In some cases, how- ever, a preliminary act of disaffirmance is required before bringing suit.^^ The disaffirmance may be made by defending an action on the contract sought to be disaffirmed,^* and, in some cases, by replication.** Denial of the execution of a 29. Wise V. Loeb, 15 Pa. Super. Ct. 601; Irvine v. Irvine, 9 Wall. 617. Here taking a lease of part of the premises from the person to whom he had conveyed when an infant was held proper evidence of aflSrmance. And see Phillips v. Green, 5 Monr. 344; Scott V. Buchanan, 11 Humph. 468; AUen v. Poole, 54 Miss. 323; Johnston v. Furnier, 69 Pa. St. 449; Be Wood, 71 Mo. 623; Houser v. Eeynolds, 1 Hayw. 143. 30. The bringing of an action is a disafBrmance by the infant of his re- lease of a claim for personal inju- ries. St. Louis R. V. Higgins, 44 Ark. 293; § 1015. And see Burdett v. Wil- liams, 30 Fed. E. 697; § 1044, as to ejectment to recover his land. On an issue whether an infant's contract has been ratified, it may be shovm that the consideration was used with his knowledge for his ad- vantage. Owens V. Phelps, 95 N. C. 286. 31. Smoot V. Eyan (Ala.), 65 So. 828; Arizona Eastern E. Co. v. Caril- lo, 17 Ariz. 115, 149 P. 313 ; Carmody V. Patchell, 42 App. D. C. 426; O 'Donohue v. Smith, 130 App. D. 215, 114 N. T. S. 536. Where a proceeding was brought in favor of an infant during his minority to avoid his contract, it was held that he effectively disaffirmed after majority by obtaining leave to prosecute the action in his own name. Carmody v. Patchell, 42 App. D. C. 426; Conn v. Boutwell, 101 Miss. 353, 58 So. 105. The infant need not go into equity to obtain possession of property conveyed during infancy. Conn V. Boutwell, 101 Mass. 353, 58 So. 105; Parrish v. Treadway, 267 Mo. 91, 183 S. W. 580; Craig v. Van Bebber, 100 Mo. 584, 13 S. W. 606, 73 Am. St. E. 464. He may maintain ejectment. Conn v. Boutwell, 101 Miss. 353, 58 So. 105; Smith v. Eyan, 191 N. T. 452, 84 N. E. 402; Lan- ning v. Brovm, 95 N. E. 921, 84 Ohio St. 385. Where, after conveying away his undivided interest in prop- erty during minority, a bill for par- tition is a good disaffirmance. Lan- ning V. Brown, 84 Ohio, 385, 95 N. B. 9'21. An action by a minor to recover for his wages on a quantum mervAt is a good disaffirmance of a contract under which the services were ren- dered. Fisher v. Kissinger, 27 Ohio Cir. Ct. E. 13. To the same effect see Dearden v. Adams, 19 E. I. 217, 36 A. 3; Eyan v. Morrison, 40 Okla. 49, 135 P. 1049 ; Bedinger v. Wharton, 27 Grat. (Va.) 857. 32. McClanahan v. Williams, 136 Ind. 30, 35 N. E. 897; Tomezek v. Wieser, 108 N. T. S. 784, 58 Misc. 46 (holding that an infant must dis- affirm before bringing ejectment). 33. First, etc.. Bank v. Casey, 158 la. 349, 138 K. W. 897; Wallace v. Leroy, 57 W. Va. 263, 50 S. E. 243, 110 Am. St. E. 777. 34. Alabama, etc., B. Co. t. Bonner 1235 RATIFICATION AND AVOIDANCE. § 1040 deed*" and a conveyance of land to a person other than the grantee in a deed made during minority have both been held good disaffirmances.'® Sometimes mere notice to the other party of intention to disaffirm is enough.*'' § 1040. Time, Nature and Effect of Ratification and Disaffirm- ance. The general rule is that contracts cannot be avoided till major- ity?** or within a reasonable time thereafter.*" But some cases (Ala.), 39 S. 619 (where, in an ac- tion by a minor servant for personal injuries, the employer pleaded a con- tract whereby the infant, at the time of employment, agreed to abide by certain rules, and where the infant was allowed to set up his infancy by replication). Where in an astion defendant pleaded accord and satisfaction, a reply setting up the infancy of plain- tiff, with the fact of bringing the action, was an effective disa£5rmance. Indiana Union Traction Co. v. Maher, 176 Ind. 289, 95 N. E. 1012. 35. Eicks V. Wilson, 154 N. C. 282, 70 S. E. 476. 3S. Losey v. Bond, 94 Ind. 1; Pitcher v. Laycock, 7 Ind. 398; Ison V. Comett, 116 Ky. 92, 75 S. W. 204, 25 Ky. 366. A mortgage made after majority to a person other than the one to whom the property has been conveyed during infancy has been held a suf- ficient disaffirmance. Phillips v. Ho3- kins, 128 Ky. 371, 108 S. W. 283, 33 Ky. Law Eep. 378 ; Eidgeway v. Her- bert, 150 Mo. 606, 51 S. W. 1040, 73 Am. St. E. 464 ; Craig v. Van Bebber, 150 Mo. 606, 51 S. W. 1040, 18 Am. St. E. 569. The question whether a second conveyance is a disaffirmance or not is one of law. Peterson v. Laik, 24 Mo. 541, 69 Am. Dec. 441; Hetterick v. Porter, 20 Ohio Cir. Ct. E. 110, 11 O. C. D. 145; Mustard v. Wohl- ford's Heirs, 15 Grat. (Va.) 329, 76 Am. Dec. 209; Blake v. Hollands- worth (W. Va.), 76 S. E. 814, 43 L. E. A. (N. S.) 814. 37. Benson v. Tucker, 212 Mass. 60, 98 N. E. 589; Danziger v. Iron Clad Eealty & Trading Co., 141 N. T. S. 593, 80 Misc. 510. 38. Carmen v. Fox Film Corpora- tion, 258 F. 703; Sims v. Gunter (Ala.), 78 So. 62; Bell v. Burkhalter, 176 Ala. 62, 57 So. 460. The object of the general rule de- ferring the act of avoidance by an infant of a contract made by him until his coming of age is his pro- tection; and, when it is apparent to the court that delay virill work in- jury to the infant, the power of re- pudiation may be exercised by the court immediately. Adriaans v. Dill, 37 App. D. C. 59; Wright v. Bu- chanan (HI.), 123 N. E. 53; McCul- lough v. Finley, 69 Kan. 705, 77 P. 69'6; Barr v. Packard, etc., Co., 172 Mich. 299, 137 N. W. 697; Eeynolds V. Garber-Buick Co. (Mich.), 149 N. W. 985, L. E. A. 1915C, 362; Pedro V. Pedro, 127 N. T. S. 997, 71 Misc. 296; Allen v. Euddell, 51 8. C. 366, 29 S. E. 198; Clary v. Spain, 119 Va. 58, 89 S. E. 130; Hobbs v. Hinton, etc., Co., 74 W. Va. 443, 82 S. E. 267; In re Kane's Estate (Wis.), 168 N. W. 402. 39. Bentley v. Greer, 100 Ga. 35, 27 S. E. 974; Law v. Long, 41 Ind. 586; Wiley v. Wilson, 77 Ind. 596. In Indiana it is held that disaffirm- ance must be made within a reason- able time after majority even though the statute of limitations has not run agaiust the right of rescission. Wiley V. Wilson, 77 Ind. 596. In Iowa this rule is established by stat- § 1040 INFANCY. i2ac hold that contracts may be disaffirmed either before or after major- ity/" Obviously an infant cannot ratify till he attains full age.** A new consideration is not essential to a valid ratification,*^ Hi» election, after majority, to ratify is final, and he cannot thereafter disaffirm.** But a contract may be ratified even after an nn- ute. Seeley v. Seeley-Howe-Le Van Co., 128 la. 294, 103 N. W. ffBl. In Kansas the infant must act within two years after attaining majority. Crapster v. Taylor, 74 Kan. 771, 87 P. 1138; Justice v. Justice, 170 Ky. 423, 186 S. W. 148; Kobinson v. Al- lison, 192 Mo. 366, 91 8. W. 115; Bobinson v. Allison, 192 Mo. 366, 91 S. W. 115; Krbel v. Krbel, 84 Neb. 160, 120 N. W. 935; Chandler v. Jones, 172 N. C. 569, 9X) S. E. 580; Hogan V. Utter, 175 N. C. 332, 95 S. E. 565. In North Carolina it is held that three years is a reasonable time. Hogan v. Utter, 175 N. C. 332, 95 S. E. 565; Chandler v. Jones, 172 N. C. 569, 90 S. E. 580; Baggett v. Jackson, 160 N. C. 26, 76 S. E. 86; Weeks v. Wilkins, 134 N. C. 516, 47 S. E. 24; Woolridge v. Lavoie (N. H.), 104 A. 346. It depends largely on the facts of each case. Darlington V. Hamilton Bank, 63 Miae. 289, 116 N. Y. S. 678; O'Donohue v. Smith, 114 N. T. S. 536, 130 App. Div. 214; Kelly T. Same, Id. What is a reason- able time is a question of fact. Clem- mer v. Price (Tex. Civ. 1910), 125 S. W. 604. A "reasonable time," within the meaning of the rule, is such a time as a person of ordinary dili- gence would require under the cir- cumstances. Havard v. Carter-Kelley, etc., Co. (Tex. Civ.), 181 S. W. 756. In determining it, the jury may con- sider the nature of the contract and the situation of the parties. Groes- beck V. Bell, 1 Utah, 338; Johnston V. Gerry, 34 Wash. 524, 76 P. 258, 77 P. 503. 40. In re Huntenberg, 153 P. 768; Hx parte MePerren, 184 Ala. 223, 63 So. 159; Ex parte MeParren (Ala.), 63 So. 159, 47 L. E. A. (N. S.) 543. A disaffirmance liefore majority, coupled with a return eight months after majority, but be'fore action brought, of certain books loaned to the infant as part of the contract, has been sustained as a good disaf- firmance. International, etc., Co. v. Doran, 80 Conn. 307, 68 A. 255; Steger & Sons Piano Mfg. Co. (Ga.), 95 S. E. 734; Eice v. Boyer, 108 Ind. 472, 9 N. E. 420, 58 Am. E. 53; Shipley v. Smith, 162 Ind. 526, 70 N. E. 803; Vanatter v. Marquardt, 134 Mich. 99, 95 N. W. 977, 10 Det. Leg. N. 349 ; Darlington v. Hamilton Bank of New York City, 116 N. Y. S. 678, 63 Misc. 289; Covault v. Nevitt, 157 Wis. 113, 146 N. W. 1115. 41. Sanger v. Hibbard, 43 C. C. A. 635, 104 P. 455; Sims v. Gunter (Ala.), 78 So. 62; Ex parte MePer- ren, 184 Ala. 223, 63 So. 159; Lee V. Hibernia Savings & Loan Soe. (Cal.), 171 P. 677; Bates v. Burden (Ga.), 96 S. E. 178; Perkins v. Mid- dleton (Okla.), 166 P. 1104; Tolar V. Marion, etc., Co., 93 S. C. 274, 75 S. E. 545; North American, etc, Co. V. O'Neal (W. Va.), 95 S. B. 822. 42. Bell V. Swansboro, etc., Co., 18 Ga. App. 81, 76 S. E. 756; Sims v. Gunter (Ala.), 78 So. 62; BeH ▼. Burkhalter, 176 Ala. 62, 57 So. 460; Calhoun v. Anderson, 78 Kan. 749, W P. 275. 43. A voluntary cancellation of am insurance policy by the infant during minority puts an end to the contract so that it cannot be ratified by his administrator. Pippen v. Mutual Ben. Life Ins. Co., 130 N. C. 23, 40 B. H. 822, 57 L. E. A. 505; Luce v. Jeatrab, 1237 BATIFICATION AND AVOIDANOB. § 1040 effectual attempt has been made, after majority, to diaafSrm." The burden of proving a ratification is on the person relying upon It If the contract was void in its inception, no ratification can validate it.*" Both ratification and disafiBrmance relate back to the time of making the contract and either validate " or avoid it ** ab initio. Therefore, since an infant's deed is not void, it passes a good title to the grantee, subject to disaffirmance,*' upon which title revests in the grantor/" The right to disaffirm exists independently of the infant's motive," or of the good faith of the person contracting 18 N. D. 548, 97 N. W. 848; North American Coal & Coke Co. v. O'Neal (W. Va.), 95 S. E. 822. 44. Hilton v. Shepherd, 92 Me. 160, 42 A. 387; Minock v. Shortridge, 21 Mich. 304 (holding that a ratifica- tion cannot be inferred from eircvmi- atances where the minor has made an explicit declaration of intention to disafi&rm). 45. Southern, etc., Co. v. Dukes, 121 Ga. 787, 49 S. E. 788; Tyler v. Gallop, 68 Mich. 185, 35 N. W. 908, 13 Am. St. B. 336; Kane v. Kane, 13 App. D. 544, 43 N. T. S. 662 ; Healy T. Kellogg, 145 N. Y. S. 943 ; Barnes ▼. American, etc., Co., 32 Okla. 81, 121 P. 250; Carroll v. Durant, etc., Bank, 38 Okla. 267, 133 P. 179. 46. Maier v. Harbor Center Land Oo. (Cal.), 182 P. 345 (where the contract was void under a statute). 47. Minock v. Shortridge, 21 Mich. 304 ; In re Parley, 213 N. T. 15, 106 N. E. 756. 48. Eice v. Boyer, 108 Ind. 472, 9 N. E. 420, 58 Am. Eep. 53; Shrock V. Crowl, 83 Ind. 243; Pippen v. Mutual Ben. Life Ins. Co., 130 N. C. S3, 40 8. E. 822, 57 L. E. A. 505; Yancey v. Boyce, 28 N. D. 187, 148 N. W. 539; Oneida County Savings Bank of Eome v. Saunders, 166 N. Y. 8. 280, 179 App. Div. 282; Plummer ▼. Northern Pae. Ey. Co., 98 Wash. 67, 167 P. 73. Thus, where an infant has pur- chased goods and sold them and has r.^need their proceeds in the hands of a third person, where they are at- tached in an action to recover the price, a plea of infancy annuls the contract, defeats the action, dissolves the attachment and releases the funds. Wallace v. Leroy, 57 W. Va. 263, 50 S. E. 243, 110 Am. St. Eep. 777; Hobbs v. Hinton Foundry, Ma- chine & Plumbing Co., 74 W. Va. 443, 82 S. E. 267 (the disaffirm- ance after full age of a contract made while an infant, and the offer to return, or return, of the property purchased, will discharge a trust lien securing payment of the consideration and acquit both princi- pal and surety therefrom). 49. Beauchamp v. Bertig, 9*0 Ark. 351, 119 S. W. 75; Parker v. Puestal, 103 Ark. 312, 147 S. W. 45; Putnal V. Walker, 61 Pla. 720, 55 So. 844. The release of dower of a minor wife makes a good title subject to her dis- affirmance at full age. Law v. Long, 41 Ind. 586; Eobinson v. Allison, 192 Mo. 366, 91 8. W. 115; Parrish v. Treadway, 267 Mo. 91, 183 S. W. 580; Shaffer v. Detie, 191 Mo. 377, 90 S. W. 131; Bohwer v. District Court of Pirst Judicial Dist., 41 Utah, 27?, 125 P. 671. 50. Mustard v. Wohlford's Heirs, 15 Grat. 329, 76 Am. Dec. 209; Seed V. Jennings (Ore.), 83 Pae. 872. 51. An infant need not show fraud in order to disaffirm release. Arizona, etc., E. Co. V. Carillo, 17 Ariz. 115, 149 P. 313 ; Porsee v. Poisee, 144 Ky. 169, 137 S. W. 863. § 1041 INFANCY. 1238 with himj** or of whether there was a consideration or not," or whether the contract price was fair,°* or whether the contract was reasonable and prudent,"'* or by the fact that the property has been oonyeyed by the infant's grantee to one without notice of the original grantor's infancy."' The right to disaffirm exists inde- pendently of fraud,"' or that the grantee has made improvements,"* or that during minority proceedings were had respecting the trans- action, wherein a decree was rendered after majority."" It doea depend, however, on the lex rei sitce."'' § 1041. Instances. It seema settled that silence for an imreasonable time, taken in connection with other facts, such as using the property purchased, retaining possession of it, selling or mortgaging it, or in any way converting it to the infant purchaser's own use, would be sufficient ratification to bind the infant after reaching manhood."^ And hence the ready disposition in so many modem cases to treat the transaction of minority as affirmed, wherever one, after attaining majority, retains deliberately and enjoys the fruits of the trans- action or disposes of the consideration.*^ As where a minor bought a yoke of oxen, for which he gave his note, and after arriv- 52. Lake v. Perry, 95 Miss. 550, 49 1; Eagau v. SouUy, 173 N. T. 581, So. 569. 65 N. E. 1116. 53. Bilskie v. Bilskie (Ind. App.), 59. Thain v. Randal, 136 Ind. 272, 123 N. E. 436. 26 N. E. 46. The right to disaffirm 54. Braucht t. Graves-May Co., 92 has been held not affected by the fact Minn. 116, 99 N. W. 417. that in a suit commenced against him 55. Simpson v. Prudential Ins. Co., in his minority to reform his deed a 184 Mass. 348, 68 N. E. 673, 63 L. E. decree was rendered a'fter majority. A. 741, 100 Am. St. E. 560; Klaus Thain v. Eandal, 126 Ind. 272, 26 V. A. C. Thomson Auto & Buggy Co., N. E. 46. 131 Minn. 10, 154 N. W. 508 (hold- 60. Beauchamp v. Baty, 90 Ark. ing that evidence that the contract 351, 119 S. W. 75. was reasonable and prudent in -view Gl. See note Am. editor in 16 E. of the infant's situation was mate- L. & Eq. 558; aLwson v. Jovejoy, 8 rial). Me. 405; Boyden v. Boyden, 9 Met. 56. Miles v. Lingerman, 24 Ind. 519; Cheshire v. Barrett, 4 McCord, 385; Cole v. Boutwell, 101 Miss. 353, 241; Boody v. McKenney, 23 Me. 58 So. 105; Jackson v. Beard, 162 517; Eobinson v. Eoskins, 14 Bush, N. C. 105, 78 8. E. 6; Oneida County, 393. Against third parties averment etc.. Bank v. Saunders, 179 App. of possession may be sufficient aver- Div. 282, 166 N. T. 8. 280; Allen v. ment of ratification. Duvic v. J. B. Anderson (Tex. Civ.), 96 S. W. 54. Henry, 33 La. Ann. 102. 57. Arizona, etc., E. Co. v. Carillo, 62. Brantley v. Wolf, 60 Miss. 420; 17 Ariz. 115, 149 P. 313. §§ 436, 437. 58. Buchanan t. Hubbard, 96 Ind. 1239 RATIFICATION AND AVOIDANCE. § 1041 ing at full age converted the oxen to his own use and received the avails." Mere lapse of time, it is true, will not usually amount to confirmation, unless the complete bar of limitations is fulfilled." Likewise w'here, after attaining full age, a minor permits an ■nnreasonable time to elapse without disafiSrmance, he may be held to have ratified, if knowledge of invalidity appears.*'' But a brief lapse of time, in connection with other circumstances making the infant's position inequitable if he means later to disaffirm, may amount to confirmation.** It may be generally said that mere silence without disaffirmance for less than the statutory period will not of itself work a ratification, unless there is a duty to speak.'^ And cases are not wanting to establish the position that ratifi- cation will be inferred from tacit assent and delay under circum- stances where silence is not excusable, where there was full knowledge and opportunity to assert one's rights, and the party whose title might have been disputed was permitted to go on incurring expense on the faith of it.*^ Yet that the cases are somewhat conflicting and difficult in this respect to be reconciled will appear from the citation of a few. 63. Lawson v. Lovejoy, 8 Me. 405. And see Alexander v. Heriot, 1 Bail. Ch. 223; Deason v. Boyd, 1 Dana, 45; Vandevort's Appeal, 43 Pa. St. 462; Stern v. Freeman, 4 Met. (Ky.) 309; Belton v. Briggs, 4 Desaua. 465. 64. Walace v. Latham, 52 Miss. 291 ; Front V. Wiley, 28 Mich. 164; cases cited in 31 Minn. 468. 65. Walker v. Arkansas, etc.. Bank, 256 F. 1; Walker v. Pope, 101 Ga. 665, 29 S. E. 8; Bentley v. Greer, 100 6a. 35, 27 S. E. 974; Miles v. Idngerman, 24 Ind. 385; Brown v. etaab (Kan.), 176 P. 113; Justice V. Justice, 170 Ky. 423, 186 S. W. 148; King v. Merritt, 67 Mich. 194, 34 N W. 689; Parrish v. Treadway, 257 Mo. 91, 183 S. W. 580; Criswell V. Criswell (Neb.7, 163 N. W. 302. Acquiescence for fourteen months has been held to be a ratification under special facts. O'Eourke v. Hall, 56 N. T. S. 471, 38 App. Div. 534; Wise V. Loeb, 15 Pa. Super. 601. The rule lias been limited to contracts which are beneficial to the infant. Groes- beck V. Bell, 1 Utah, 338. What is a reasonable time, within the meaning of the rule, is a question of fact. Hobbs V. Hinton Foundry, Machine & Plumbing Co., 74 W. Va. 443, 82 S. E. 367. 6G. Cresinger v. Welch, 15 Ohio, 156; Strong, J., in Irvine v. Irvine, 9 Wall. 617; Goodnow v. Empire Lumber Co., 31 Minn. 468. 67. Syck V. Hellier, 140 Ky. 388, 131 S. W. 30; Britt v. Caldwell-Nor- ton Lumber Co., 136 La. 155, 52 So. 251. See Becker v. Stone, 136 Mass. 405; Lynch v. Johnson, 109 Mich. 640, 109 N. W. 640 ; Shipp v. McKee, 80 Miss. 741, 32 So. 281, 92 Am. St. B. 616; Watson v. Peebles, 102 Miss. 735, 59 So. 881; Lacy v. Pixler, 130 Mo. 383, 35 S. W. 206; Gapp Mayer V. Wilkenson (Utah), 177 P. 763; Birch V. Linton, 78 Va. 584, 49 Am. E. 381; Wilson v. Branch, 77 Va. 65, 46 Am. E. 709. 68. See post, 1044; Allen v. Poole, 54 Miss. 323. § 1041 INFANCY. 1240 In Alabama, an infant, ten days before majority, purchased a note and drew an order upon a third person in payment, and received notice of non-'payment. It was held, in a suit several years after, that his failure to renew the note and disaffirm warranted the conclusion that he intended to abide by it.^' Still more rigidly was the same doctrine enforced in an earlier New York case/' Part-payment, or even promise of part-payment, may operate as confirmation.'^^ So may authority given to an agent to pay, though the agent does nothing.^^ But declarations of affirmance by one purporting to act as the attorney or solicitor of the late infant do not amount to ratification if his authority be not proved.''* Sub- mitting the question of liability, after coming of age, to arbitration or offering to compromise does not amount to ratification.^* But letters indicating intent to abide by a former award may; as well as the enjoyment of its benefits.''^ So may permitting an action growing out of the transaction to go by default, or a bill in equity to be taken as confessed,'* as well as bringing an action after majority to enforce a voidable contract either individually '' or jointly with others.'"''"' A promise to settle by note against a third party is held sufficient.** So is a promise to settle by work. Nor do the recent oases seem to require that a promise to settle should be very precisely expressed. The mere retention of consideration- money received during infancy appears to amount to ratification in California ; *^ thoug'h this is not the general rule elsewhere,*" but 69. Thomasson v. Boyd, 13 Ala. 80. Taft v. Sergeant, 18 Barb. 320, 419. 81. Hastings v. Dollarhide, 24 Cal. 70. Delano v. Blake, 11 Wend. 85. 195. 71. Little V. Dnncan, 9 Eich. Law, 82. It has been held that there was 55 ; Stokes v. Brown, 4 Chand. (Wis.) no ratification of the illegal sale of 39. an infant's land by an ezecntor 72. Orvis v. Kimball, 3 N. H. 314. where the infant accepted a pair of 73. Carrell v. Potter, 23 Mich. 377. shoes from the executor after major- 74. Benham v. Bishop, 9 Conn. 330; ity, even though he expended part of Bennett v. Collins, 52 Conn. 1. the proceeds of the sale for her board 75. Bamaby v. Barnaby, 1 Pick. and clothing during her infancy. 221; Jones v. Phcenix Bank, 4 Seld. Hamilton v. Eathbone, 175 IT. S. 414, 228. 20 S. Ct. 155, 44 L. ed. 219; Hobbs v. 76. Terry v. McClintock, 41 Mich. Nashville C. & St. L. E. A. Co., 122 492. Ala. 602, 26 So. 139, 82 Am. St. Eep. 77. Carrell v. Potter, 23 Mich. 377 ; 103 ; White v. Sikes, 129 Ga. 508, Peeararo v. Peeararo, 84 N. T. S. 59 S. E. 228. A wife cannot be held 581; Wise v. Loeb, 15 Pa. Super. Ct. to have ratified where her husband r©- 601. ceives and retains the consideration. 78-79. Ward v. The Little Bed, 8 Buchanan v. Hubard, 96 Ind. 1; Mo. 358. Eichardson v. Pate, 93 Ind. 433, 47 lUt EATIFICATION AND AVOIDANCE. § 1041 it may have tliat effect, especially where the consideration is re- ceived after majority.** Keeping and using an article purchased during infancy, with equivocal expressions of intention, may bind the infant so that he cannot return it afterwards to the vendor. So may a sale of the article with full knowledge of the fact of Am. B. 374 (where an infant joined with her husband in the sale of his lands, with the proceeds of which other lands were bought, of which she at his death, received one-third as dower) ; Syck v. HelUer, 140 Ky. 388, 131 8. W. 30; Baker v. Stone, 136 Mass. 405. An infant does not ratify merely by retaining, after majority, a note which he had accepted during minor- ity from an executor in settlement of a legacy. Durfee v. Abbott, 50 Mich. 479, 15 N. W. 559; Carrell v. Potter, 23 Mich. 377; Orchard v. Wright-Dalton-Bell-Anchor Store Co. (Mo.), 197 S. W. 42; Pedro v. Pedro, 127 N. T. 8. 97, 71 Miac. 296. 83. Goin v. Cincinnati Realty Co., 118 C. C. A. 438, 200 F. 252; Hobbs ▼. Nashville C. & 8t. L. Ey. Co., 122 Ala. 602, 26 So. 139, 82 Am. St. K. 103 ; La Cotts v. Quertermous, 84 Ark. 610, 107 S. W. 167. In Ceorgia by statute the retention of the bene- fits a voidable contract after major- ity operates as a ratification. Wiek- ham V. Torley, 136 Ga. 594, 71 S. E. 881; Bell v. Swainsboro Fertilizer Co., 12 6a. App. 81, 76 S. E. 756. It has been held that where after ma- jority a minor demands the consider- ation of a valuable contract he rati- fies it. Barlow v. Eobinson, 171 ID. 317, 51 N. E. 1045. One indorsing a note, given as a part consideration for a conveyance made by him while an infant, thereby ratifies the conveyance. Turner v Stewart, 149 Ky. 15, 147 8. W. 772. Where, after an infant became of age, he collected his part of the pur- chase money arising from a void sale by order of court of his interest in land, and allowed a deed to be made therefor, and the grantee to hold it for many years without asserting claim thereto till it had passed into the hands of an innocent purchaser, he was estopped thereby to claim an interest in the land. WUliamson v. Mann, 134 Ky. 63, 119 8. W. 232; Damron v. Eatliff, 123 Ky. 758, 97 S. W. 401, 30 Ky. Law Eep. 67; Clark V. Kidd, 148 Ky. 479, 146 S. W. 1097. Continuing after majority to re- ceive wages under a voidable contract of service has been held a good rati- fication. Spieer v. Earl, 41 Mich. 191, 1 N. W. 923, 32 Am. Eep. 152; McDonald v. Sargent, 171 Mass. 492, 51 N. E. 17; Ferguson v. Bell's Adm'r, 17 Mo. 347. Where an infant after majority takes title to property, knovfing that his funds have vrrongfully been used to purchase it, he was held to have ratified the transaction. Comey v. Harris, 118 N. T. 8. 244, 133 App. Div. 686 (afEd., 200 N. T. 534, 93 N. E. 1118). Where a woman during infancy ac- cepted an annuity in settlement of a claim for services, her continuance to accept the payments after majority was held a ratification. Parsons v. Teller, 97 N. T. S. 808, 111 App. Div. 637; Kinard v. Proctor, 68 8. C. 279, 47 S. E. 390; Dudley v. Browning, 79 W. Va. 331, 90 S. E. 878. To the same effect see Burkhard v. Crouch, 169 N. Y. 399, 62 N. E. 431 (where the amount received had been invested for the infant during minor- ity, and where, after majority, she appUed for and received it, acquiesc- ing in the transaction for nine years). § 1041 INFANCY. 1242 purchase.** So may the reception and substantial enjoyment of the benefits of the transaction after reaching majority, such aa collecting dividends or interest/^ asserting ownership and control after majority of land or other property acquired under a voidable contract,*' or receiving the principal, or other act totally incon- sistent with an honest intention to disaffirm. A verbal promise is sufficient to bind ; " while a contract to work is ratified by continuance in the employer's service for a month after attaining full age.** Plea of the execution of a note, in defence of a suit in assumpsit, is held to be confirmation of the note itself.*' Slight words, importing recognition and confirmation of &e promise, have been treated as sufficient; or, at least, as sufficient for a jury to consider.®" And, according to a recent decision of the Supreme Court of the United States, it is a question for the jury and not for the court to decide, whether the evidence submitted in any case shows an affirmance or not, if there be any evidence tending to show it.®^ On the other hand are numerous decisions which seem to bear against the creditor. Says a Massachusetts judge in an early case : " By the authorities a mere acknowledgment of the debt, such as would take a case out of the statute of limitations, is not a ratification of a contract made during minority." '" Yet the much-quoted distinction there taken between " acknowledgment " that a debt ig due, and verbal " ratification and confirmation " is 84. Shropshire v. Bums, 46 Ala. 63 N. E. 887; Kineaid v. Kincaid, 108. 157 N. T. 715, 53 N. E. 1126, 33 85. Huth V. Carondolet E., 56 Mo. N. T. S. 476, 85 Hun, 141. To the 202; Price v. Winter, 15 Pla. 66; same effect see Perkins v. Middleton Corwin v. Shoup, 76 HI. 246. (Okla.), 166 P. 1104 (mortgaging 86. Gannon v. Manning, 42 App. B. land acquired under voidable con- C. 206 ; Buchanan v. Hubbard, 119 tract) ; Mission Eidge Land Co. Vi Ind. 187, 21 N. E. 538. Selling after Nixon (Tenn.), 48 S. W. 405. majority personal property purchased 87. West v. Penny, 16 Ala. 186; while an infant, has been held a good Martin v. Mayo, 10 Mass. 137. ratification. Eobinson v. Hoskins, 77 88. Forsyth v. Hastings, 27 Vt Ky. SSS; Hilton v. Shepherd, 92 Me. 646. 160, 42 A. 387; Gulf, etc., E. Co. v. 89. Best v. Givena, 3 B. Monr. 73. Lemons (Tex.), 206 S. W. 75. 90. Hoit v. Underhill, 9 N. H. 436; Where a minor purchases land, giv- Bay v. Gunn, 1 Den. 108 ; Whitney ing a mortgage to one who pays the v. Dutch, 14 Mass. 457. price, the two acts being one transac- 91. Irvine v. Irvine, 9 Wall. 617, tion, he affirms the mortgage where, 628. after majority, he conveys the land, 92. Whitney v. Dutch, 14 Mass. 460, which had been conveyed to him. per Parker, C. J. Eeady v. Pinkham, 181 Mass. 351, 1243 EATIFICATIOIT AND AVOIDANOB. § 1042 eifher exceedingly subtile, or at the present day frequently mis- -appKed. The distinction further developed leads, as we find, to the conclusion that wliere one says he owes the debt and has not the means of payment, but will pay as soon as able, or words to this effect, this is only an acknowledgment, and not binding."* Such decisions do not always support the explanation sometimes given, that the American cases proceed upon the ground of inten- tion to ratify; though there are doubtless cases which support so reasonable a view.®* In a well-considered Connecticut case the distinction is thus dravra : that the infant's contract to pay money not for necessaries, cannot as a rule be ratified by any mere acknowledgment of indebtedness after he becomes of age, since there should be an express promise to pay ; but that an exception arises where the infant received the consideration for which his promise was given, and after he becomes of age still has it in his possession or under his control; and in such a case it will be inferred from his mere acknowledgment of indebtedness that he meant to make himself liable.®^ Wh.ere the statute provides a period vdthin which the infant may disaffirm, the expiration of the statutory period vnthout such action operates as a ratification.** § 1042. Conflicting Dicta. What is it that suffices to take a case out of the statute of limita- tions? "Either an express promise to pay, or an unqualified acknowledgment of present indebtedness ; in which latter case the Jaw will imply a promise to pay." *' Wihat is ratification of a con- 93. See Proctor v. Sears, 4 ADen, jority, it will not be presumed that 95; Thompson v. Lay, 4 Pick. 48; the note was given for necessaries. Ford V. Phillips, 1 Pick. 203 ; Hall v. nor that the consideration remains Gerrish 8 N. H. 374; GoodseD v. under the maker's control; this must Myers, 3 Wend. 479 ; WUcox v. Eoath, be proved by the party who seeks to 12 Conn. 550; Chandler v. Glover, 32 enforce it. lb. Pa St. 509. 95. Catlin v. Haddox, 49 Conn. 492. 94. See Thing v. Dibbey, 16 Me. This statement assumes that the con- 55; Dana v. Steams, 3 Cush. 372; sideration which the infant retains ia Smith V. Kelly, 13 Met. 309. And see a lona -fide and ample one, making note to 16 E. L. & Eq. 558. The mere it inequitable to delay his decision to indorsement on a minor's note of a affirm or disaffirm whUe he holds the receipt of money of date after the benefits. maker had attained majority, is not 9G. Luce v. Jestrab, 12 N. D. 548, a sufficient ratification. Catlin v. Had- 97 N. W. 848. dox 49 Conn. 492. In a suit on such 97. See Galley v. Crane, 21 Pick, note, brought after the maker's ma- 523; Wakeman ▼. Sherman, 5 Seld. § 1043 INFANCY. 1244 tract ? So far as a definition may be hazarded, it is a voluntary admission that one is liable and bound by the terms of an existing though inchoate or imperfect contract. A debt is, of course, created by contract, express or implied. But some say that there must always be a new contract made by the minor on reaching majority. To hold that a new contract for payment is essential, differs certainly from ruling that ratification and confirmation of an existing contract binds one who was lately an infant. But once again such contracts of an infant are called voidable. Does not the term " voidable " imply something still different, something which binds until expressly repudiated ? And if so, how doubly inconsistent to exact a specific promise to pay, over and above an admission of present indebtedness. In truth, the law is here over- burdened with its own definition ; judicial terms, inconsistent and varied, bewilder the judicial mind; and thankless, indeed, must be the task of refining upon distinctions which rest upon no rational basis of difference.'* § 1043. Summary of Doctrine. This writer makes no attempt to reconcile the numerous dicta of the courts on this important subject. They are irreconcilable. If American decisions themselves may be regarded as pointing out a general rule, it seems to be this : that the mere acknowledgment that a certain transaction constitutes a debt is insufiicient to bind him lately an infant; but that an acknowledgment to the extent that he justly owes that debt, with equivocal expressions as to some future payment, may or may not be considered sufiicient, though the better opinion is in favor of their sufficiency; that acts or omissions on his part, which are prejudicial to the adult party's interests, or evince his own intention to retain the consideration and advantages of a contract made during infancy, may be, espe- cially when reasonable time has elapsed, construed into a ratifica- tion, without an express promise, the presumption of honorable motives being fair and reasonable under such circumstances ; and finally, that a distinct, unequivocal promise, verbal or written, made after attaining majority, is always sufficient, this apparently fll; Marshall, C. J., in Clemenstine under the statute of limitations. He V. WUHamson, 8 Cranch. 72; Story, says: "In the case of an infant, I J., in Bell v. Morrison, 1 Pet. 351. shall hold an acknowledgment not t» 98. Lord Kenyon seems responsible be sufficient, and require proof of an for the doctrine that the case of in- express promise to pay, made by the fancy differs in essence from that infant, after he had attained that age 1245 BATIFICATION AND AVOIDANCH. § 1043 superseding the former promise altogether."' In cases of doubt, moreover, it would seem to be better to treat the evidence presented as constituting facts for the consideration of the jury, rather than a question of law for the court to pass upon. Some cases go even farther, and require an express repudiation on the infant's part. But this is appropriate only to certain trans- actions, and we are not justified in deducing therefrom a general principle that express repudiation is necessary in all voidable con- tracts of an infant ; for the decisions certainly do not go to this length, whatever the dicta.^ A conditional promise, when of age, to perform a contract made during minority will not sustain an action thereon without proof that the condition has been fulfilled.^ And any conditional ratifi- cation is subject accordingly.* Reasonable time for an infant, on coming of age, to elect to confirm or avoid the acts land contracts of his minority, must depend in each case upon the particular circmnstances ; and in all cases the mental operation of election at majority, whether outwardly manifested more or less plainly, and whether actually proved or to be conclusively assumed from long lapse of time and silence, is the fact to be legally established or inferred.* And such election once made is irrevocable.'' An obligation may be silently when the law presumes that he has 25 S. E. 870; Proctor v. Sears, 4 Al- discretion." Trupp v. Fielder, 2 Bsp. len, 95; Everson v. Carpenter, 17 628. Wend. 419'; Chandler v. Glover, 32 99. See American eases collected in Pa. St. 509; Huth v. Carondolet E., Am. editor's note to 16 E. L. & Eq. 56 Mo. 202. 558; Bobo v. Hansell, 2 Bail. 114; 3. Ji.; State v. Binder (1895), Ackerman v. Bunyon, 1 Hilt. (N. T.) N. J. 58; Vaughan v. Parr, 20 Ark. 600; 4. Stringer v. Life Ins. Co., 82 Richardson v. Boright, 9 Vt. 368; Ind. 100. Parke, B., says in Wil- Hodges V. Hunt, 22 Barb. 150; State liams v. Moor, 11 M. & W. 256, 265, V. Plaisted, 43 N. H. 413 ; Wright v. that the principle on which the law Steele 2 N. H. 51 ; Conklin v. Og- allows a party who has reached twen- bom, 7 Ind. 553 ; Merriam v. Wilkins, ty-one to give validity to contracts 6 N. H. 413; Jones v. Butler, 30 entered into during his infancy, is, Barb. 641; Curtin v. Patton, 11 S. & that he is supposed to have acquired B. 305; Norris v. Vance, 3 Eich. 164; the power of deciding for himself Oswald V. Broderick, 1 Clarke (la.), whether the transaction in question is 3gQ of a meritorious character by which 1. See Holmes v. Blogg, 8 Taunt. in good conscience he ought to be 39 ; Eiehardson v. Boright, 9 Vt. 368 ; bound. Kline v. Beebe, 6 Conn. 494; Hoit v. 5. If evidence of express disaffirm- TTnderhill, 9 N. H. 439. ance is shown, acts tending to prove 2. Bresee v. Stanly, 119 N. C. 278, a prior full affirmance may be shown § 1044 INFANCY. 124& outstanding or maturing when the infant reaches full age or it may by that time reach the stage of performance or enforcement ; and lapse of time before disaflSrmance ought to bind the late infant more readily in the latter case than the former because active regard on his part is called for in such connection." In other words, reasonable time should be determined by the facts and circimistances in each case. § 1044. Rule as to Conveyance of Infant's Lands, Lease, Mort- gage, &c. Let us apply the rule of ratification or avoidance to the infant's lands, where, as we have stated, affirmance or disaffirmance is post- poned to his majority.^ If an infant makes a lease of his land (which is voidable if for his benefit, but not otherwise), and accepts rent after attaining full age, and by other slight acts affirms the transaction, this is a ratification of the lease and he cannot afterwards disaffirm.* And where a minor mortgaged his likewise. Scranton v. Stewart, 52 Ind. C. 215, 51 S. E. 909; Jackson v. 69, 92. 6. Where an infant went surety for anolher, a year and a half has been considered not unreasonably long af- ter his majority to disafSrm. John- son V. Storie, 32 Neb. 610. 7. Smoot V. Eyan (Ala.), 65 S. 828; Webb v. Eeagin, 160 Ala. 537, 49 So. 580; Tobin v. Spann, 85 Ark. 556, 109 S. W. 534; Watson v. Ruder- man, 79 Conn. 687, 66 A. 515. One seeking to foreclose an infant's mort- gage must show that it is not sub- ject to disaffirmance. Watson v. Euderman, 79 Conn. 687, 66 A. 515; Slater v. Eudderforth, 25 App. D. C. -97; White v. Sikes, 129 Ga. 508, 59 S. E. 228; McEeynoIds v. Stoats (111.), 122 N. E. 860; Losey v. Bond, 94 Ind. 1; Pitcher v. Laycock, 7 Ind. 398; Law v. Long, 41 Ind. 586; For- see V. Forsee, 144 Ky. 169, 137 S. W. 836; Syck v. Hellier, 140 Ky. 388, 131 S. W. 30; Damron v. Eatliff, 123 Ky. 758, 97 S. W. 401, 30 Ky. Law Eep. 67 ; Ward v. Ward, 143 Ky. 91, 136 S. W. 137 ; Lansing v. Michigan, etc., E. Co., 126 Mich. 663, 86 N. W. 147, 88 Am. St. E. 567, 8 Det. Leg. N. 183; Weeks v. Wilkins, 139 N. Beard, 162 N. C. 105, 78 S. E. 6; Evants v. Taylor, 18 N. M. 371, 137 P. 583 ; Smith v. Ryan, 191 N. Y. 452,. 84 N. E. 402; Foy v. Sabsano, 136 N. T. S. 699, 152 App. Div. 47; Union, etc., Ins. Co. v. Hilliard, 63 Ohio St. 478, 59 N. E. 230, 53 L. E. A. 462, 81 Am. St. E. 644; Hetteriok V. Porter, 20 Ohio Cir. Ct. R. 110, 11 O. C. D. 145; Seed v. Jennings (Ore.), 83 P. 872; Birch v. Linton, 78 Va. 584, 49 Am. R. 381; Gillespie V. Bailey, 12 W. Va. 70, 29 Am. E. 445. While a minor's af&rmance or dis- affirmance by election is postponed until his majority, he may, during his minority, enter upon premises which he has conveyed to another, and re- ceive rents and profits until arriving at full age; or he may by his guar- dian or next friend procure the ap- pointment of a receiver for collecting rents and profits. Hutchinson v. Mc- Laughlin, 15 Colo. 492. But an infant cannot, during mi- nority, disaffirm his conveyance nor re- cover possession. Shipley v. Bnnn (1894), 125 Mo. 445; § 409. 8. Ashfield v. Ashfield, W. Jones,. 1247 EATIFICATION AND AVOIDANCE. § 1044 land, and on coming of age conveys it to another person in fee, subject to the mortgage, which he recognizes in the second deed, it is held to be a ratification of the mortgage ; * and making a new mortgage after majority has naturally the effect of creating a junior incumbrance.^" A deed given after majority to carry out or confirm a previous voidable transaction is a good ratification." Such a deed must be regular in form.^" So slight acts of assent on the infant's part are held sufficient to confirm leases made by a guardian beyond the term of his authority.^* The subsequent ratification of a morl^ gage, as of other deeds, relates back to the first delivery, so as to affect all intermediate persons, except purchasers for a valuable consideration.^* And where a loan of money was made to an infant for which he executed a bond and mortgage, and in a will made after he became of age directed the payment of " all his just debts" and died, it was held that the will sufficiently confirmed the mortgage.^° Even notes given for the purchase-money of land, not secured by mortgage, have been equitably enforced; and the court has refused to permit the notes to be disaffirmed and the land reclaimed.^* And yet the retention, after reaching majority, of the proceeds of land purchased and afterwards sold by the person while an infant, is not of itself sufficient to render him liable upon his covenant to pay an outstanding mortgage upon the land which he had assumed as part of the consideration of his purchase.^'^ But allowing the mortgage to be foreclosed after majority, and a bill of foreclosure to be taken as confessed, may defeat the infant's equity." A mortgage given by the infant is affirmed if he 157- Wimberley v. Jones, 1 Ga. Dee. has been held a sufficient ratification. 91. ' Henson v. Gulp, 157 Ky. 442, 163 S. 9. Boston Bank v. Chamberlin, 15 W. 455; Haldeman v. Weeks (Ore.), Mass. 220; Story v. Johnson, 2 You. & 175 P. 445. Coll. Exch. 607 ; Phillips v. Green, 5 12. Gaskins v. Allen, 137 N. C. 426, Monr. 355; Lynde v. Budd, 2 Paige, 49 S. E. 919 (where the deed of a 131 • Losey v. Bond, 94 Ind. 67. married woman lacked proper probate 10. McGan v. Marshall, 7 Humph. and privy examination before ac- J21. knowledgment). 11. Hill V. Weil (Ala.), 80 S. 526; 13. See Smith v. Low, 1 Atk. 489. Green v. Holzer (Ark.), 177 S. W. 14. Palmer v. Miller, 25 Barb. 399. 903; Wall v. Mines, 130 Cal. 27, 62 15. Merchants' Fire Ins. Co. t. P. 386 ; Calhoun v. Anderson, 78 Kan. Grant, 2 Edw. Ch. 544. 749 98 P. 275. 1®- ^^ei v. Beebe, 21 Vt. 495. A promise to make a confirmatory 17. Walsh v. Powers, 43 N. Y. 23. deed, and acquiescence for many 18. Terry v. McClintoek, 41 Mich, years thereafter in the grantee 's title 492. § 1045 INFANCY. 1248 pays interest on the mortgage not© after attaining majority.** § 1045. Infant's Conveyance, Lapse of Time, &c. It would seem tliat the infant is not precluded from disaffi rming his conveyance of real estate by the mere lapse of time, provided there has been no word or act on his part indicating affirmanoa Laches is not imputable to an infant during the continuance of minority.^" Where land has been sold by an infant, it was said ia a Connecticut case, years ago, the period of acquiescence being thirty-five years, that the infant ought to declare his disaffirmance within a reasonable time ; and similar dicta may be found in other courts; but there seems to be no doubt upon the decided cases, that mere acquiescence is no confirmation of a sale of lands unless it has been prolonged for the statutory period of limitation; and that an avoidance may be made any time before the statute has barred an entry. ^^ But disaffirmance is here required ; and any solemn revocation, or a conveyance to someone els© of that land, repudiates the infant's conveyance; while any new conveyance by way of affirmance makes the infant's deed wholly valid.^^ Whatever might be the effect of an infant's own fraud, as against himself, it would appear that a subsequent purchaser or mort- gagee in good faith and for a valuable consideration will hold his title as against a deed made by the owner during his minority, of which he has received neither actual nor constructive notice ; and 19. American Mortgage Co. v. Burehin, 14 Johns. 124; Urban t. Wright (1894), 101 Ala. 658. Grimes, 2 Grant, 96; Vaughan v. Parr, 20. Conditions in Virginia during 20 Ark. 600 ; VoorMes v. Voorhies, 24 the Civil War have been held to save Barb. 150; Ware v. Brush, 1 McLean, an infant from being barred by laches. 533 ; Moore v. Abemethy, 7 Blaekf. Bedinger V. Wharton, 27 Gratt. (Va.) 442; Cole v. Pennoyer, 14 111. 158; 857 ; Smith v. Sackett, 5 Gilm. 534 ; GiUespie v. Bailey, 12 W. Va. 70 (the HiU V. Nelms, 86 Ala. 442. But time case of an infant tenant in common) ; which has commenced running against Wallace v. Latham, 52 Wis. 291; the ancestor continues to run against Prout v. Wiley, 28 Mich. 164; Wells the infant heir. Gibson v. Herriott, 55 v. Seixas, 24 Fed. B. 83; Lacy v. Pix- Ark. 85; Hayes v. Nourse, 114 N. lar, 120 Mo. 383. T. 595. But see Nobles v. Poe (Ark.), 22. Mette v. Peltgen, 148 HI. 357; 182 S. W. 270 (delay of 43 years in Moore v. Baker, 92 Ky. 518; Cox v. briuging suit). McGowan (1895), N. C. Where the 21. 1 Am. Lead. Cas., 4th ed., 256; infant, with knowledge of the facts. Met. Contr. 60, 61, and cases cited; accepts upon majority the residue of Tucker t. Moreland, 10 Pet. 58 ; Boody the purchase price of the land, he rati- V. McKenney, 23 Me. 517; Drake v. fiea the transaction. Smith t. Gray Eamsay, 5 Ohio, 251 Jackson v. (1895), N. C. 1249 KATIFICATION AND A.VOTDANCS. § 1045 this, too, notwithstanding ratification or fraud of the minor might hiave rendered that deed valid.'* Yet lapse of time, together with slight circumstances, have in many instances sufficed to sustain an infant's deed. A Missouri case, indeed, holds that mere declarations or a promise upon con- tingency will not ratify and confirm." But the authorities generally manifest extreme repugnance at setting aside a solemn conveyance of land and reopening beneficial transactions, merely to suit the caprice or dishonorable intent of infants.'^ This may explain another dictum to the effect that an infant's deed will be confirmed by any deliberate act after he becomes of age, by which he takes benefit under it or recognizes its validity ; '* which is not without precedents for support. Thus in some instances where the infant, after coming of age, saw the purchaser make valuable improvements and incur considerable expense, and said nothing for years, he was held bound.'' So, too, it would seem, where one, knowing his title, permits another to purchase without giving notice of his claim.'' Or omits a fair opportunity for asserting his privilege." While mere lapse of time less than the statute period will not suffice, yet the lapse of a less period in connection with such circumstances may. A tribunal of justice can properly decline to become the instrument of a knave ; and the late infant's dishonorable intention to take advantage bears against him. So, in Illinois, and some other States, the statute makes conveyances of a minor binding, unless disaffirmed and repudiated within a certain reasonable period, say three years after reaching majority,^" which is just legislation. Where the infant was nearly of age 23. Black v. Hills, 36 HI. 376 ; In- And ef. Brantley v. Wolf, 60 Miss, man v. Inman, L. K. Eq. 260 ; Weaver 420. V. Carpenter, 42 la. 343. If there is doubt whether the deed 24. Glamorgan v. Lane, 9 Mo. 446. was made during infancy or not, the And see Davidson v. Young, 38 lU. burden of proof is on the disaffirming 14 5_ party. Amey v. Coekey & Bargar, 73 25. See cases cited in preceding Md. 297. paragraph. 28. Hall v. Simmons, 3 Rich. Eq. 26. McCormio v. Leggett, 8 Jones, 120 ; Alsworth v. Cordtz, 31 Miss. 32 ; 425. Belton v. Briggs, 4 Desaug. 465; Cre- 27. Wheaton v. East, 5 Terg. 41; singer v. Welch, 15 Ohio, 156; Em- Wallace V. Lewis, 4 Barring. 75; mons v. Murray, 16 N. H. 385. But Jones V. Phenix Bank, 4 Seld. 335; see Brantley v. Wolf, 60 Miss. 420. Davis V. Dudley, 70 Me. 336. Aliter 29. Dolph v. Hand, 156 Pa. St. 91. where improvements are made while 30. The infant may have the full the late infant is absent and silent. benefit of the statute though he com- Birch V. Linton and Wife, 78 Va. 584. mences an action in infancy and dis- 79 § 1046 INFANCY. 1250 "nhen he conveyed, and tad made a fair sale, receiving the pur- chase-money, delay on his part to disaffirm is not favored.^^ And there ought to be no disaffirmance favored which comes unreason- ably late after the legal disability is removed.^^ The purchaser of an infant's lands succeeds to all the infant's rights in relation to it, although those rights grow out of the latter's infancy.^* And a party in possession under the infant's deed cannot be regarded as a trespasser before the deed is avoided.^* And it is held that where land was conveyed by a person under age in exchange for other lands, and he, after coming of age, sells and conveys the lands so received, the last deed amounts to a confirmation of the first.^'^ § 1046. Ratification, as to an Infant's Purchase, &c. The same reasoning which applies to property transferred by the infant applies to his purchases. If an infant, for instance, takes a conveyance of land during minority and retains possession continued it. Snare & Triest Co. v. Friedman, 169 Fed. 1, 94 C. C. A. 369, 40 L. R. A. (N. S.) 367; Putnal v. "Walker, 61 Fla. 720, 55 So. 844; Watson V. Peebles, 102 Miss. 725, 59 So. 881; O'Donohue v. Smith, 130 App. D. 214, 114 N. Y. S. 536; Birch V. Linton, 78 Va. 584, 49 Am. E. 381; Wilson v. Branch, 77 Va. 65, 46 Am. B. 709; Blake v. Hollandsworth, 71 W. Va. 387, 76 S. E. 814. Where in the case of a female the disabilities of infancy and coverature concur, the right to diaafSrm continues till both disabilities are removed and fcr the statutory period thereafter, ■without regard to the interval between the conveyance and the avoidance. Blake v. Hollandsworth (W. Va.), 76 S. E. 814, 43 L. E. A. (N. S.) 714; Blankenship v. Stout, 25 111. 132; Wright V. Germain, 21 la. 585; supra, % 433. And see Ferguson v. Bell, 17 Mo. 347 ; Bostwick v. Atkins, 3 Comst. 53; Pursley v. Hays, 17 la. 311; Shel- don Y. Newton, 3 Ohio (IST. S.), 494; Eainsford v. Eainsford, Spears Ch. 385. Forgetfulness of the deed made in infancy is no sufficient escuse for delay to disaffirm. Tunison v. Cham- blin, 88 111. 378. See Amey v. Cockey & Bargar, 73 Md. 297. Infant remaindermen assenting to a sale of land must disaffirm within a reasonable time after majority or they will be barred as against the pur- chaser. Criswell v. Criswell (Neb.), 163 N. W. 302, L. E. A. 19'17E, 1103. But see Steele v. Poe, 79 S. C. 407, 60 S. E. 951 (holding that infant con- tingent remaindermen who have con- veyed their estate need not disafBrni till the termination of the life estate. To the same effect see MeCauley v. Grimm, 115 Va. 610, 79 S. E. 1041. 31. Ferguson v. H. E. & W. T. Ey. Co., 73 Tex. 344. 32. Where there was an arrange- ment during minority that the grantee would reconvey upon the grantor's majority, such a transaction will be favorably regarded for enforcement. Butler V. Hyland, 89 Cal. 575. 33. Thompson v. Gaillard, 3 Rich. 418. See Jackson v. Todd, 6 Johns. 257; Hall v. Jones, 21 Md. 439. 34. Wallace v. Lewis, 4 Harring. 75. 35. Williams v. Mabee, 3 Halst. Ch. 500. 1251 RATIFICATION AND AVOIDANCE. § 1046 after coming to majority, circumstances may make that a binding transaction. So, if an infant lessee remains in possession of the house or land demised, and pays rent after majority, he cannot repudiate the lease afterwards.^* Katification of a purchase of land involves ratification of a mortgage back to secure the purchase- money; one cannot repudiate the former and not the latter, for this would be inequitable.^^ An infant may duly avoid or ratify his purchase of personal property also, either during minority or "within a reasonable time after reaching majority.^' When an infant purchases property, and continues to enjoy the use of the same, and then sells it or any part of it, and receives the money for it, he must be considered as having elected to affirm the contract, and he cannot afterwards avoid payment of the consider- ation.*® Some authorities would confine the affirmation of a pur- chase of land to an actual subsequent sale, but this is quite unreasonable, and contrary to the general doctrine ; for there may be many other acts which constitute just as full and undoubted evidence of a design on the infant's part to affirm such contract as an actual sale of the land. Thus continuous occupation of prem- ises, improvements, and offers to sell, have sometimes been deemed sufficient.*" And Chief Justice Shaw observes that if an infant, after coming of age, retains landed property purchased by him during minority for his own use, or sells or otherwise disposes of it, such acts being only conscientiously done with intent to ratify or affirm, affirmation or ratification may be inferred.*^ The same principle has been declared in other cases, even to the extent of holding that mere continuance in possession is an affirmance ; the more so, if the late infant has put it out of his power to restore the title.*^ It will be observed that such latter conduct involves 3G. Holmes v. Blogg, 8 Taunt. 35 ; disability of infancy is removed. Sew- Smith, Contr. 284; Bac. Abr., tit. In- ell v. Sewell, 92 Ky. 500. fant, K. 612; Baxter v. Bush, 29 Vt. 38. § 1015. 465; Armfield v. Tate, 7 Ired. 258; 39. Boody v. McKeniiey, 10 Shep. Beickler v. Guenther, 121 la. 419, ff6 517 ; Hubbard v. Cummings, 1 Me. 11 ; N. W. 895. Boyden t. Boyden, 9 Met. 519; Eob- 37. § 1044; liangdon v. Clayson, 75 bins v. Eaton, 10 N. H. 561. Mich. 204 • Kennedy v. Baker, 159 40. See Bobbins v. Eaton, 10 N. H. Pa. St. 146; Peers v. McLaugh- 561. lin 88 Cal. 294. Provision in 41. See Boyden v. Boyden, 9 Met. an absolute conveyance to an infant 519. confering upon him the power to sell, 42. Dana v. Coombs, 6 Greenl. 89 ; implies only the power to sell when the Cheshire v. Barrett, 4 McCord, 241; § 104Y IITFANCT. 1252 two elements : lapse of time and the exercise of acts of ownership.** But the infant on coming of age has of course the right to dis- affirm as well as to affirm the purchase by appropriate acts.** Where a deed made to an infant is beneficial to him, equity will infer an acceptance on his part, whether he knew of the conveyance or not ; but he may reject the grant upon reaching majority if he so elects.*" § 1047. Executory Contracts, &c.. Voidable During Infancy; How Affirmed or Disaffirmed. As to deeds passing a voidable title to land out of the infant we have seen that he cannot elect to disaffirm or ratify until he attains majority. But with regard to an infant's executory con- tracts, or transactions importing on his part the fulfilment of duties, during the period of infancy, which might be prejudicial or irksome, he is allowed to disaffirm and avoid during infancy wherever the contract was not of that beneficial or positive kind which the law pronounces binding. This is strictly in accordance with the general doctrine that one shall not be prejudiced by bis own acts committed while an infant. Thus, if the infant promises during infancy to marry, he need not fulfil that promise; if he make a stock contract, he can repudiate it at any time and thereby avoid the onerous responsibility of continuing to pay assess- ments ; ** if he has become a partner, he may rid himself, before majority, of the injudicious compact ; " if he has taken a lease, he may put an end to it ; *' if he executes a promissory note, he Iiynde v. Budd, 2 Paige, 191 ; Middle- an affirmance though the arrangement ton V. Hoge, 5 Bush, 478. itself failed. 43. This rule was applied in a recent 45. Owings v. Tucker, 90 Ky. 297 ; well-considered New York case, upon Sneathen v. Sneathen, 104 Mo. 201. a full examination of the authorities. Land conveyed to an infant upon his An infant had given his note for cer- trust to reconvey cannot be retained tain real estate; and, very foolishly, by him. Nordholt v. Nordholt, 57 or very dishonorably, endeavored to Cal. 552; § 416. avoid payment upon majority, while 46. Wuller v. Chuse, etc., Co., 241 holding to the benefits of his pur- III. 398, 89 N. E. 796 ; Cain v. Garner, chase. It was held that by his acts he 169 Ky. 633, 185 S. W. 122; Dublin had ratified the contract of purchase. & Wicklow E. v. Black, 3 Ex. 181; Henry v. Boot, 33 N. Y. 526. Indianapolis Chair Co. v. Wilcox, 59 44, Williams v. Williams, 85 N. C. Ind. 429; Robinson v. Weeks, 56 Me. 313, In Houlton v. Manteuffel, 51 102. Minn. 185, an arrangement on ma- 47. Goode v. Harrison, 5 B. & Aid. jority to keep the purchase was held 147; Dunton v. Brown, 31 Mich. 82. 48. Gregory v. Lee (1895), Conn. 1253 KATIFICATION AKD AVOIDANCE. § 1048 need not pay when it falls due.** A disaffirmance during infancy, where thus permitted, may require something different from dis- affirmance at majority, something more explicit perhaps, and nearer to an express repudiation; though each case, as in the case of election at majority, should be governed by its own circum- stances. The executory contract of an infant to convey or transfer his real or personal property cannot be specifically enforced against him, nor made th© basis of an action of damages ; "^ nor, on the other hand, can his executory contract to buy real or personal property, or to mortgage or give security, be compelled ; °^ but in either case the right of affirmance or disaffirmance is left open. To bind him he must confirm such a contract after attaining majority. § 1048. Rule Applied to Infant's Contract of Service. Thus, too, although it may be said that one's fully executed contract for service cannot be re-opened, if beneficial to him, to the adult party's detriment, the general rule, independently of the apprentice acts, is that an infant who contracts to perform labor for a fixed time at a definite rate may put an end to it whenever he chooses during minority, and claim compensation pro rata, for his services. °^ It has also been applied to a contract relating to 49. Cummings v. Ererett, 82 Me. Mich. 191, 1 N. W. 923, 32 Am. Eep. 260. 152. 50. Walker v. Ellis, 12 111. 470 ; If the contract disaffirmed be entire Petty V. Eoberta, 7 Bush, 410; Griffis and partially performed by the infant V. Younger, 6 Ired. Eq. 520. And see when disaffirmed, he cannot recover on Mustard v. Wohlford, 15 Gratt. 329. a quantum meruit for the services ac- 51. See Eiley v. Mallory, 33 Conn. tually performed. Yancey v. Boyce, 201; McCarty v. Woodstock Co., 92 28 N. D. 187, 148 N. W. 539; Eams- Ala. 463. An infant who bids dell v. Coombs, etc., Co., 161 N. Y. S. for property at an auction is not ob- 360; Aborn v. Janis, 113 N. Y. S. liged to execute the purchase. Shurt- 309, 62 Misc. 95 (order affd., 106 N. leff V. Millard, 12 E. I. 273. Y. S. 1115) ; Dearden v. Adams, Iff B. 52. The infant may enforce the I. 217, 36 A. 3. contract and recover wages upon it, A contract by a minor to work for where it does not appear that he has his board and clothes has been upheld a parent, guardian or master entitled on the ground that the latter were to his services. The Melissa Fed. necessaries. Starke v. Storm, 115 Va. Cas. No. 9,400 (U. S. D. C, Mich. 651. To the same, effect see Stone v. 1874) 1 Brovra Adm. 476; Belyea v. Dennison, 13 Pick. (Mass.) 1, 23 Am. Cook 162 F. 180; The Cubadist, 252 Dee. 654; Person v. Chase, 37 Vt. F. 658 (affd., 256 F. 203) ; Ping Min 647; "Van Pelt v. Corwine, 6 Ind. 363; & Mill Co. V. Grant, 68 Kan. 732, 75 Bay v. Haines, 62 111. 485 ; Davies v. P. 1044- Cain v. Gamer, 169 Ky. 633, Turton, 13 Wis. 185; Moses v. Stevens, 185 S. W. 122; Spicer v. Earl, 41 2 Pick. 332 ; Mason v. Wright, 13 Met. 1048 INFAJfCY. 1254 damages wliicli might be suffered in the course of the employ- ment.^^ Infants, acting upon bad advice, have sometimes the effrontery, hovrever, after rescinding a contract of service beneficial to themselves, to demand wages from their employers, without the allowance of reasonable offsets; but the courts are not so foolish as to indulge them often in this respect; hence, in numerous in- stances, it is decided that where an infant puts an end- to his contract of service, his demand for proportional wages is subject to the reasonable deduction of his employer for part-payments, board, and necessaries furnished him during the same period, even to the entire extinction of his own claim/* And the injury siis- tained by his employer will not be unfrequently taken into ac- count.'^' But the infant cannot be sued for breach of his agreement of service.^' Of course, he may set off his own labor against the employer's demand for necessaries, and recover any balance ac- cordingly.^'^ The mutual understanding of the parties as to whether the infant's services should be paid for, or counterbalanced completely by his board and education, should be regarded in every case, upon examination of the circumstances."' And if the infant 306; Gaflfney v. Hayden, 110 Mass. 137; Spicer v. Earl, 41 Mich. 191; Lufkin v. Mayall, 5 Tost. 82 ; Francis T. Felmet, 4 Dev. & Bat. 498; Jud- kins V. Walker, 17 Me. 38; Nashville, etc., E. Co. V. Elliott, 1 -Cold. 611. But see Weeks v. Leighton, 5 N. H. 343; Harney v. Owen, 4 Blackf. 336; Wilhelm v. Hardman, 13 Md. 140; McCoy T. Huffman, 8 Cow. 84; Med- bury V. Watrous, 7 Hill, 110. As to the more general effect of emancipa- tion, see supra. Part III, ch. XII. Two cases hold that an executed contract for services cannot be dis- affirmed, in the absence of evidence of fraud or undue advantage taken of the infant. Eobinson v. Van Vleet, 91 Ark. 262, 121 S. W. 288; Spicer v. Earl, 41 Mich. 19, 1 N. W. 923, 32 Am. E. 152. 5S. Southern ,Cotton Oil Co. v. Dukes, 121 Ga. 787, 49 S. E. 788. 54. Thomas v. Dike, 11 Vt. 273; Hoxie T. Lincoln, 25 Vt. 206; Lowe v. Siuklear, 27 Mo. 308 ; Stone v. Denni- son, 13 Pick. 1; Squier v. Hydliff, 9 Mich. 274; Wilhelm v. Hardman, 13 Md. 140; Eoundy v. Thatcher, 43 N. H. 526. 55. Thomas v. Dike, 11 Vt. 273; Hoxie v. Lincoln, 35 Vt. 206; Lowe v. Sinklear, 27 Mo. 308; Moses v. Stev- ens, 2 Pick. 336. Contra, Meeker v. Hurd, 31 Vt. 639; Derocher v. Con- tinental Mills, 58 Me. 217. 56. Frazier v. Eowan, 2 Brev. 47. 57. Francis v. Felmet, 4 Dev. & Bat. 598; Loekwood v. Bobbins, 125 Ind. 398. 58. Mountain v. Fisher, 22 Wis. 93 ; Gamer v. Board, 27 Ind. 323. A case occurred in Massachusetts some years ago, where an infant, in consideration of an outfit to enable him to go to California, agreed, with his father's assent, to give the party furnishing the outfit one third of all the avails of his labor during his absence, which he afterwards sent accordingly. The jury having found that the agree- ment was fairly made, and for a rea- sonable consideration, and beneficial to the infant, it was held that he 1255 EATIFICATION AND AVOIDANCE. § 1049 continues in service after he becomes of age, without demanding increase of wages or other modification of the contract, this is good evidence of his affirmance of the contract.^' As matter of law one IS not precluded from avoiding at majority a contract of service if something be due him, although it has been fully executed.*" It is a well-known principle that when a contract is dissolved by mutual consent, pro rata wages may be recovered without ex- press agreement. This applies to infants as well as adults. But a father is so far bound by his son's contract that his own claim for compensation depends upon his son's proper performance.*' The employer, on the other hand, cannot make a new contract with the minor, so as to supersede the first one, without the assent of the father, or other person with whom the original contract was made.®^ But it is held that a contract of hiring between an infant and a third person is not rendered inoperative on the infant's part merely for want of the parent's previous consent; the infant not having avoided the contract, and the parent making no effort to assert his paramount rights.*' § 1049. Parents, Guardians, &c.. Cannot Render Transaction Obligatory upon the Infant, &c. A contract made by a parent, or guardian, or a stranger, in an infant's name, acquires no obligatory force against the infant himself, apart from the latter's knowledge or consent ; and if it be the infant's own contract, then the usual right of ratification or could not rescind the agreement and lutely necessary to proper protection; recover tlie amount sent, deducting it should not be allowed to become a the cost of the outfit and any other trap for others, by means of which money expended for him under the the infant may perpetrate frauds." agreement. Breed v. Judd, 1 Gray, See also Forsyth v. Hastings, 27 Vt. 455. This offer, the court observed, 646, where ratification was inferred would not place the parties in statu from remaining in the employer 's ser- quo, for the defendants took the risk vice a month after attaining majority, of the life, health, and good fortune GO. Dube v. Beaudry, 150 Mass. 448. of the plaintiff. Under all the cir- 61. Rogers v. Steele, 24 Vt. 513. cumstances of the case, the sum ad- See Thomas v. Williams, 1 Ad. & E. •vanced was held to be a reasonable 685; Eoundy v. Thatcher, 49 N. H. consideration for a third part of the 526. proceeds of the plaintiff's labor. 62. McDonald v. Montague, 30 Vt. 59. Spicer v. Earl, 411 Mich. 91. 357. And see Gates v. Davenport, 2? Says Cooley, J., of repudiation in such Barb. 160. See also Parent and Child, cases: "Where only the infant's ser- supra. vices are ifi question, the rule should 63. Nashville, etc., R. E. Co. v. El- not be extended beyond what is abso- liott, 1 Cold. 64. § 1050 INFANCY. 1256 avoidance remains open to him.** One who assumes for an infant a mortgage debt, or a deficiency upon foreclosure of the infant's land, or makes any undertaking for lie infant upon a voidable obligation, cannot render the infant personally liable." A father, though acting as guardian, cannot estop the child from denying an invalid sale of land."* Nor can a father sue on his child's voidable contract as the child's substitute.*'' On the other hand, a third person not in privity with the infant has no right to say that the infant shall not on majority make or assume any contract he pleases.** Minors whose property has been sold without legal authority by parents, guardian, or anyone else, can recover it again upon the principles already discussed; and thus may be avoided an illegal sale of land, without first tendering the price to the purchaser, leaving him, however, to recover such consideration as may remain.** So, too, will pur- chasers or mortgagees from the infant be protected against acts of the parents which disregard the child's rights."* § 1050. Miscellaneous Points; as to Nevr Promise; Whether Infant Affirming Must Know His Legal Rights. Where a new promise is requisite on reaching majority, it must be made to the party with whom the infant contracted, or to his agent or attorney ; not to a stranger."^ But a promise to an agent authorized to pres'ent the claim and receive payment and give discharge binds him lately an infant.''^ And where a writing ad- dressed to another than the plaintiff is relied on, not as constituting a ratification or containing a promise, but as evidence of a ratifica- G4. Armitage v. Widoe, 36 Mich. Hill v. Clark, 4 Lea, 405. Where 124. minors on arriving at age are induced 65. Bieknell v. Bieknell, 111 Mass. by their trustee to execute a deed of 265; Wood v. Truax, 39 Mich. 628. confirmation without their rights 66. Harmon v. Smith, 38 Fed. 482. heing explained to them, equity will 67. Oabum v. Farr, 42 Mich. 134. relieve them from the consequences of Infant may redeem his land from a their mistake. Wilson v. Life Ins. tax sale. Carroll v. Johnson, 41 Ark. Co., 60 Md. 150. Delay in disaffirm- 59. ing may bar relief, if unreasonable. 68. Douglas v. Watson, 34 E. L. ft Williams v. Williams, 94 N. C. 732. Eq. 447. And equitable considerations are not 69. Graves v. Hickman, 59 Tex. lost sight of. Peers v. McLaughlin, 381, 401; Self v. Taylor, 33 La. 88 Cal. 294. Ann. 769; Part IV, ch. 7. Equity will 70. Hooper v. Payne, 94 Ala. 223. charge purchase-money applied for the 71. Bigelow v. Grannis, 3 Hill, 120 ; benefit of infants by way of equitable Goodsell v. Myers, 3 Wend. 479. snbrogation in the purchaser's favor. 72. Mayer v. McLure, 36 Miss. 389. 1257 BATIFICATION AND AVOrDANCE. § 1051 tion previously made by the defendant, it is held admissible in the plaintiff's favor.''* l^or is it necessary that the agent should have disclosed his authority before the defendant made his admission." It is not essential to a valid ratification that the person lately an infant should know that he was not legally liable on his contract made during infancy.'" Ignorance of the law excuses no one. But there is a dictum of Lord Alvanley to the contrary, which has been frequently repeated in American courts, and once constituted the basis of a decision in Pennsylvania.'" l^early all the later cases hold tiat the intention must be to ratify a contract known to be invalid but for the ratification." Some American statutes require a new promise in writing.'* § 1051. Whether Infant Who DisafHrms Must Restore Consider- ation. It is a rule that money voluntarily paid by a minor under a contract from which he has derived no benefit may be recovered 73. Stern v. Freeman, 4 Met. (Ky.) 309. 74. Hoit V. Underhill, 10 N. H. 320. And see Tate v. Tate, 1 Dev. & Bat. 22. 75. Bestor v. Hickey, 71 Conn. 181, 41 A. 555; Robin v. Shandberry (HI.), 122 N. E. 808; Healy v. KeUogg, 145 N. T. 8. 943; Hobbs v. Hinton, etc., Co., 74 W. Va. 443, 82 S. E. 267; Morse v. Wheeler, 4 Allen, 570; Met. Contr. 59; Eing v. Jamison, 66 Mo. 124; Anderson v. Soward, 40 Ohio St. 325; Clark v. Van Court, 100 Ind. 113. 76. Harmer v. Killing, 5 Esp. 103; Hinely v. Margaritz, 3 Barr, 428. See Curtin v. Patton, 11 S. & E. 305; Eeed v. Boshears, 4 Sneed, 118 ; Norris V. Vanee, 3 Eich. 164. 77. Manning v. Gannon, 44 App. D. C. 98. Eatiflcation by an adult of a con- tract made by him when a minor is a question of intention, and the act, to have such effect, must have been per- formed with full knowledge of its consequences and express intention to ratify what is known to be voidable. Coe V. Moon, 360 HI. 76, 103 N. E. 1074; George v. Delaney, 111 La. 760, 35 So. 894; Durfee v. Abbott, 61 Mich. 471, 38 N. W. 521; Eidgeway V. Herbert, 150 Mo. 606, 51 S. W. 1040, 73 Am. St. E. 464; Interna- tional Text-Book Co. v. Connelly, 206 N. T. 188, 99 N. E. 722 ; Grolier Soc. of London v. Forahay, 157 N. Y. S. 776. The fact of knowledge of his right to disaffirm may be shown by circum- stantial evidence. Fletcher v. A. W. Koch Co. (Tex. Civ.), 189 S. W. 501. 78. Syck V. Hellier, 140 Ky. 388, 131 S. W. 30; Hilton v. Shepherd, 93 Me. 160, 42 A. 387 ; Lamkin & Foster V. Ledoux, 101 Me. 581, 64 A. 1048; Pedro V. Pedro, 71 Misc. 296, 127 N. T. S. 997; Grolier Soc. v. Foshay, 157 N. T. S. 776; Carroll v. Durant Nat. Bank, 38 Okla. 367, 133 P. 179; Barnes v. American Soda Fountain Co., 32 Okla. 81, 121 P. 250; Steele V. Poe, 79 S. C. 407, 60 S. E. 951; Same v. Friedham, 79 S. C. 398, 60 S. B. 953; Ward v. Seherer, 96 Va. 318, 31 S. E. 518. The new promise in writing re- quired by the Virginia Code must rec- ognize the debt as binding, and, either § 1051 IHFANCY. 1258 back upon iis disaffirmance of tlie contract," but nearly all tho late cases permit a recovery without regard to the benefit of the contract to the infant, especially if not of a sort to be returned.'" in terms or by a fair construstion, re- fer to the contract to be ratified and treat it aa a pubsisting contract. Ward T. Scherer, 96 Va. 318, 31 S. E. 518. 79. By defending against an action on the ground of infancy and making counterclaim to recover what he has paid on a contract for a correspond- ence course an infant must show that he has not received equal value for what he has paid. International, etc., Co. V. Doran, 80 Conn. 307, 68 A. 355. Where an infant and an adult aa partners pay money and give notes for stock, neither can recover back the money paid. Latrobe v. Dietrich, 114 Md. 8, 78 A. 9'83. It has been held that where plain- tiff sued to recover several life insur- ance premiums paid by him when an infant, and the contract was fair and free from fraud, and the infant had enjoyed the benefits thereof in part and they were of such a nature that he could not restore them, he could not recover the premiums paid. Link V. New York Life Ins. Co., 107 Minn. 33, 119 N. W. 488 ; Berglund v. Ameri- can Multigraph Sales Co. (Minn.), 160 N. W. 191; Thornton v. Holland (Miss.), 40 So. 19. Where an infant disaffirms his con- tract he cannot recover the unpaid contract price. Craig v. Van Bebber, 100 Mo. 584, 13 S. W. 906, 18 Am. St. E. 569. It has been held that a minor buy- ing an automobile and afterwards dis- affirming may be charged with the benefits of its use, including the pleas- ure experienced. Wooldridge v. La- voie (N. H.), 104 A. 346. An infant may not be entitled to recover back the sum paid under a chattel mortgage to secure the price of a piano, where the reasonable value of the use of the piano during the time she used it exceeded the amount paid. Wanisch v. Wuertz, 140 N. Y. S. 573, 79 Misc. 610 ; Lown v. Spoon, 143 N. Y. S. 275, 158 App. Div. 900; Eiee v. Butler, 49 N. Y. S. 494, 25 App. Div. 388; Pierce v. Lee, 74 N. Y. S. 936, S6 Misc. 870. ShurtlefE v. Millard, 12 E. I. 272, applies this doctrine (and without re- striction as to auctioneer's loss) to the deposit-money paid by an iiifant at an auction purchase, where he re- pudiated before completing the pur- chase. 80. Ex parte McFerren, 184 Ala. 323, 63 So. 159; Evelyn v. Chiches- ter, 3 Burr. 1719; Ex parte McFerren (Ala.), 63 So. 159, 47 L. E. A. (N. S.) 543; Carmody v. Fairchild, 43 App. D. C. 426 ; Wuller v. Chuse, etc., Co., 341 111. 398, 89 N. E. 796; Wul- ler V. Chuse, etc., Co., 147 111. App. 224 (aff., 341 111. 398, 89 N. E. 796; Wallin V. Highland, etc., Co., 137 la. 131, 103 N. W. 839; Nielsen v. Inter- national, etc., Co., 106 Me. 104, 75 A. 330; Caswell v. Parker, 96 Me. 39, 51 A. 338; White v. New Bedford, etc., Corp., 178 Mass. 20, 59 N. E. 643; Gillis V. Goodwin, 180 Mass. 140, 61 N. E. 813, 91 Am. St. E. 265. The rule seems to cut both ways, so that it has been held that where an infant buys from another infant and pays a price, the vendor may, on dis- affirmance by the vendee, in turn dis- affirm the implied contract to repay the price. Drude v. Curtis, 183 Mass. 317, 67 N. E. 317, 63 L. E. A. 755. On the disaffirmance of an insurance policy and action for the recovery of the premium, the insurer cannot re- tain the cost of keeping the policy in force before disaffirmance. Simpson V. Prudential Ins. Co., 184 Mass. 348, 68 N. E. 673, 63 L. E. A. 741, 100 Am. St. E. 560; Vanatter v. Mar- quardt, 134 Mich. 99, 9'5 N. W. 977, 1259 EATIFICATION AND AVOIDANCE. § 1051 If an infant purchaser of goods claims the right to rescind and restores the property, he can of course recover back the purchase- money he paid.*^ An infant upon reaching majority, who chooses to disaffirm a sale of his real estate not made in accordance with law, may do so effectually without first refunding, or offering to refund, the purchase-money.*^ Purchase-money in such cases might come fairly into an account for adjusting rents and profits. Eut the principle is firmly established by the courts that he cannot on attaining full age hold to an exchange or purchase, made by him in infancy, with its advantages, and thus affirm the transac- tion, while pleading his infancy to avoid the payment of the purchase-money.** There is some conflict in this class of cases, however, at the present day ; the effort being on thie one hand to hold the infant to common honesty, and on the other not to deprive iiim of the legal right of election which the policy of the law accords to all who have been under a legal disability, because of possible improvidence on his part while irresponsible. According to the better opinion now current, it is only when an infant, on disaffirming his contract at majority, still has the consideration, that he can be compelled to return it as the condition of disaffirm- ance; restitution in full not being a prerequisite, but restitution 10 Det. Leg. N. 349; Eeynolds v. 81. Cooper v. Eowe, 10 Daly, 352; Garber-Buick Co. (Mich.), 149 N. W. St. Louis, etc., Ry. v. Higgins, 44 Ark. 985, L. R. A. 1915C, 382; Braucht v. 293. Graves-May Co., 92 Minn. 116, 99 N. 82. Pitcher v. Laycock, 7 Ind. 398 W. 417; Thornton v.HoUana, 87 Miss. Cresinger v. Welch, 15 Ohio, 156 470, 40 So. 19. Miles v. Lingerman, 24 Ind. 385 Where an action is brought to re- Bedinger v. Wharton, 27 Gratt. 857 cover property sold to an infant in Green v. Green, 69 N. T. 553 ; Moore infancy, and partial payment is v. Baker, 92 Ky. 518. But cf. Stuart pleaded, the right to recover the prop- v. Baker, 17 Tex. 417 ; Bingham v. orty and the right of the infant to be Barley, 55 Tex. 281. repaid money paid on the price may 83. Kline v. Beall, 6 Conn. 494; both be tried in the same action. Ross Bailey v. Bamberger, 11 B. Monr. P. Curtice Co. v. Kent, 89 Neb. 496, 113; Strain v. Wright, 7 Ga. 568; 131 K. W. 944, 52 L. R. A. (N. S.) Hillyer v. Bennett, 3 Edw. Ch. 222; 723; Rice v. Butler, 160 N. T. 578, Lowry v. Drake, 1 Dana, 46; Kitchen 65 W. E. 275, 47 L. R. A. 303, 73 v. Lee, 11 Paige, 107 ; Tipton v. Tip- Am. St. R. 703; Healy v. Kellogg, ton, 3 Jones, 552; Womack v. Wom- 145 N. Y. S. 943; Danziger v. Iron ack, 8 Tex. 397; Smith v. Evans, 5 Clad, etc., Co., 80 Misc. 510, 141 N. Humph. 70; Manning v. Johnson, 26 T. S. 59'3; Lipsehitz v. Korndahl, 136 Ala. 446; Wilie v. Brooks, 45 Miss. N. T. S. 2 ; Prudential Life Ins. Co. 542 ; Kerr v. Bell, 44 Mo. 120. of America v. Fuller, 29 Ohio Cir. Ct. E. 415. § 1051 INFANCY. 1260 of the advantages as they still remain to him and capable of being restored.'* In other words, if the infant has wasted or squandered the consideration he may repudiate without any tender of restitu- tion.*^ Where an infant has the privilege of repudiating during 84. In re Huntenberg, 153 F. 768; Where a party seeks to prevent an Sanger v. Hibbard, 104 F. 455, 43 C. infant from avoiding his release, by C. A. 455; Barker v. Fuestal, 103 Ark. 312, 147 S. W. 45. A commission paid to a broker for negotiating a sale of land to a minor need not be returned on disaffirmance. Maier v. Harbor, etc., Co. (Cal.), 182 P. 345 ; Clyde v. Steger & Sons Piano Mfg. Co. (Ga. App.), 95 S. E. 734; WuUer V. Chuse, etc., Co., 241 111. 398, 89 N. E. 796; Wright v. Buch- anan (III), 123 N. E. 53; Sanger v. Hibbard, 2 Ind T. 547, 53 S. W. 330; Wilson V. Unselt's Adm'r, 12 Bush (Ky.), 215; Ison v. Cornett, 116 Ky. 92, 75 S. W. 204, 25 Ky. Law Eep. 366 ; Succession of Sallier, 115 La. 97, 38 So. 929; United States Inv. Co. v. Ulrickson, 84 Minn. 14, 86 N. W. 613, 87 Am. St. R. 326; Lacy v. Pix- ler, 120 Mo. 383, 25 S. W. 206; Or- chard v. Wright-Dalton-BeU-Anehor Store Co. (Mo.), 197 S. W. 42; Price V. Blankenship, 144 Mo. 203, 45 S. W. 1123; Craig v. Van Bebber, 100 Mo. 584, 13 S. W. 906, 18 Am. St. E. 569; Starr v. Watkins, 78 Neb. 610, 111 N. W. 363. It has been held that an engagement ring cannot be recovered from an in- fant female on her breach of the en- gagement. Stromberg v. Bubenstein, 19 Misc. 647, 44 N. Y. S. 405; Mc- Carthy V. Bowling Green Storage & Van Co., 169 N. Y. S. 463, 182 App. Div. 18; Lane v. Dayton Coal & Iron Co., 101 Tenn. 581, 48 S. W. 1094; Abernathy v. Phillips, 82 Va. 769, 1 8. E. 113. The claim for return of the con- sideration on disaffirmance is personal and against the infant, so that it can- not be enforced against those to whom he has granted the property sold. Mustard v. Wohlford, 15 Grat. ( Va.) , 329, 76 Am. Dec. 209. setting up that the infant has not re- turned the consideration, the burden is on him to prove that the considera- tion remains in the infant's hands unspent. Britton v. South Penn Oil Co., 73 W. Va. 792, 81 S. E. 525; Wallace v. Leroy, 57 W. Va. 263, 50 S. E. 243, 110 Am. St. E. 777; Jones v. Valentine 's School of Telegraphy, 123 Wis. 318, 99 N. W. 1043; Grauman, Marx & Cline Co. v. Krienitz, 142 Wis. 556, 1B6 N. Vt. 50. The rule does not apply where the only thing received is a paper, called a "scholarship," entitling the infant to a course of study in the other party 's school. Jones v. Valentine 's School of Telegraphy, 122 Wis. 318, 99 N. W. 1043. If the property has been sold and reinvested in other property, that property must be surrendered. Rob- erts V. Eoberts, 61 Ohio St. 96, 55 N. E. 411; Millsops v. Estes, 137 N. C. 535, 50 S. E. 227, 107 Am. St. E. 496, 70 L. E. A. 170; Chandler v. Sim- mons, 97 Mass. 508; Green v. Green, 69 N. Y. 553, and cases cited; Dill v. Bowen, 54 Ind. 204; Shurtleff v. Mil- lard, 13 E. I. 372. Cf. Badger v. Phinney, 15 Mass. 359; Bartholomew V. Finnemore, 17 Barb. 428. 85. Alfrey v. Colbert, 168 P. 231; Colbert v. Alfrey, Id.; Bell v. Burk- halter, 176 Ala. 62, 57 S. 460; Bickle V. Turner (Ark.), 202 S. W. 703; Beauchamp v. Bertig, 90 Ark. 351, 119 S. W. 75; Lee v. Hibernia Sav. & Loan Soc. (Cal.), 171 P. 677; Putnal V. Walker, 61 Fla. 720, 55 So. 844, 36 L. E. A. (N. S.) 33; White v. Sikes, 129 Ga. 508, 59 S. E. 228; Southern Cotton Oil Co. V. Dukes, 131 Ga. 787, 49 S. E. 788; Mustard v. Wohlford, 15 Grat. 339, 76 Am. Dee. 309; Ship- 1261 KATIFICATION AND AVOIDANCE. § 1051 infancy, a similar rule applies as that is usually asserted is that the to place the adult in statu quo as ley T. Smith, 162 Ind. 526, 70 N. E. 803; Story & Clark Piano Co. v. DsLvj (Ind. App.), lig N. E. 177; First Nat. Bank v. Casey, 158 la. 349, 138 N. W. 897; Burgett y. Bar- riek, 25 Kan. 526; Gray v. Grimm, 157 Ky. 603, 163 S. W. 763; White v. New Bedford Cotton-Waste Corp., 178 Mass. 20, 59 N. E. 642 ; Barr v. Pack- ard Motor Car Co., 172 Mich. 299, 137 N. W. 697; Lake v. Perry, 95 Miss. 550, 49 So. 569; Eidgeway v. Her- bert, 150 Mo. 606, 51 8. W. 1040, 73 Am. St. K. 464; Rowe v. Griffiths, 57 Neb. 488 78 N. W. 20; Evants v. Taylor (N. M.), 137 Pae. 583, 50 L. E. A. (N. S.) 1113; Oneonta Grocery Co. V. Preston, 167 N. T. S. 641; Kane v. Kane, 43 N. T. S. 662, 13 App. Div. 544; Coody v. Coody, 39 Okla. 719, 136 P. 754, L. E. A. 1915E, 465 ; F. B. Collins Inv. Co. of Clinton V. Beard, 148 P. 846; Worthy v. JonesviUe Oil Mill, 77 S. C. 69, 57 S. E. 634 ; Turney v. Mobile & O. E. Co., 12i7 Tenn. 673, 156 S. W. 1085. An infant's wife, joining with her husband in a mortgage on their home- stead, of which he receives the pro- ceeds, need not refund in order to disaffirm. Bradshaw v. Van Valken- burg, 97 Tenn. 316, 37 S. W. 88; MoBroom v. Whitefield, 108 Tenn. 422, 67 S. W. 794; Bullock v. Sprowles, 93 Tex. 188, 54 S. W. 657, 47 L. E. A. 326, 77 Am. St. E. 849; MacGreal v. Taylor, 167 U. S. 688, 17 S. Ct. 9'61, 42 L. Ed. 326; Blake v. Harding (Utah), 180 P. 172; Bed- inger v. Wharton, 27 Grat. (Va.) 857; Britton v. South Penn Oil Co., 73 W. Va. 793, 81 S. E. 525. Where infants borrow money, and give a mortgage to secure the loan, for the purpose of discharging a prior mortgage on their land, thep cannot disaffirm the contract and mortgage without returning the money so ac- quired. Berry v. StigaU, 253 Mo. 690, to restoring consideration.'* All repudiating infant shold be made far as possihle."' 162 S. W. 126. See, to the same ef- fect, MacGreal v. Taylor, 167 U. 8. 688, 17 S. Ct. 961, 42 L. Ed. 326. But see New York, etc., Co. v. Taylor, 23 App. D. 363, 48 N. T. 8. 152 (seemingly holding the contrary) ; Morse v. Ely, 154 Mass. 458; Craig V. Van Bebber, 100 Mo. 584; Smith V. Equitable Co-operative Bank, 219 Mass. 382, 106 N. E. 1020. 86. Corey v. Burton, 32 Mich. 30, the case of a chattel mortgage; where the infant was allowed to replevy the chattels without restoring the con- sideration. But an infant purchasing chattels and giving a purchase-money mortgage for the price cannot dis- affirm the mortgage and at the same time keep the chattels as if by clear title. Curtiss v. McDougal, 26 Ohio St. 66 ; Knaggs v. Green, 48 Wis. 601 ; Carpenter v. Carpenter, 45 Ind. 142; White V. Branch, 51 Ind. 310, — seem to absolve an infant from restoring property received in exchange. But, semble, if he still holds the exchanged property he ought, on correct prin- ciple, to restore or offer to restore it, when disaffirming the transaction. In many cases to maintain an action based upon his avoidance of his con- tract, an infant should first give notice of his election to avoid or make a de- mand. Betts V. Carroll, 6 App. 518. See Stout v. Merrill, 35 la. 47; Henry V. Boot, 33 N. T. 526. See, further, Dawson v. Holmes, 30 Minn. 107; Brantley v. Wolf, 60 Miss. 420 ; Bran- don V. Brown, 106 HI. 519. A pur- chaser from the infant, after majority, on a bill to have the deed cancelled which was made in minority, need not tender back the purchase-money re- ceived by the infant, which the latter has squandered. Eureka Co. v. Ed- wards, 71 Ala. 248. 87. Marx v. Clisby, 130 Ala. 502, 30 S. 517. Where an infant disaffirmed a re- § 1051 INFANCY. 12G£ Hence an inlant cannot damage property lie lias received, and then demand tbe full price on offering to restore it.** Nor re- cover partnership property after rescinding the partnership agree- ment, so as to prejudice liahilities of the firm which are outstand- ing;'^ nor rescind the partnership agreement and then demand benefits inconsistent with it.^° If the former vendee be sued for use and occupation of land, it is held that he may recoup for valuable improvements; and equity favors a fair adjustment of rents, damages and improvements.^^ It is held also in some in- stances, that where the infant disaffirms his conveyance of land, he ought to be prepared to account for the purchase-money with in- terest."^ But again it is said that the infant on disaffirming may not recover unpaid purchase-money.®^ The plea of false warranty may sometimes be set up against the infant's attempt by affirmance to enforce a hard bargain."* To multiply these illustrations is unnecessary ; the cardinal principle which runs through them all is that, with due reservation of the infant's privilege, substantial justice should be done, if possible, between tbe two parties to a lease and brought suit to recover damages on the right of action re- leased, the jury was properly in- structed to deduct from the damages recovered the amount paid by the de- fendant to secure the release. Ari- zona, etc., R. Co. V. Carillo, 17 Ariz. 115, 149 P. 313. In an action by an infant after disaffirming a contract to recover the price paid for a theatre, the amount recovered cannot be reduced by an allowance for rental during the in- fant's occupancy. Gannon v. Mann- ing, 42 App. D. C. 206 ; Ooe v. Moon, 260 m. 76, 102 N. E. 1074; Shirk v. Shultz, 113 Ind. 571, 15 N. E. 12; Bowen v. Marston, 134 La. SffS, 64 So. 118; Nielsen v. International Text- Book Co., 106 Me. 104, 75 A. 330; In- ternational Text-Book Co. v. McKone, 133 Wis. 200, 113 N. W. 438. The courts will aid the adult to get his property restored, where they can, aside from the infant's assent. Evans v. Morgan, 69 Miss. 328; Whyte V. Eosencrantz, 123 Cal. 634, 56 P. 436, 69 Am. St. E. 90. 88. Carr v. Clough, 6 Fost. 280; Bartholemew v. Finnemore, 17 Barb. 428. 89. Furlong v. Bartlett, 21 Pick. 401; Sadler v. Eobincon, 2 Stew. 520; Kinnen v. Maxwell, 66 N. C. 45. 90. Page V. Morse, 138 Mass. 99; § 408; Dunton v. Brown, 31 Mich. 82. So, too, as to his contract to perform service, supra, % 443. 91. Weaver v. Jones, 24 Ala. 420; Petty V. Eoberts, 7 Bush, 410. If one receives rents when an infant, he can- not demand them over again on at- taining majority. Parker v. Elder, 11 Humph. 546. Where the grantee has made valuable improvements they may be set off against the rental value of the land, but the grantor is "not liable for any excess. Sewell v. Sewell, 92 Ky. 500. 92. Sewell v. Sewell, 92 Ey. 500. 93. Craig v. Van Bebber, 100 Mo. 584. 94. Morrill v. Aden, 19 Vt. 505. And see Heath v. West, 8 Fost. 101; Shipman v. Horton, 17 Conn. 481; Edgarton v. Wolf, 6 Gray, 453. 1263 EATIFICATION' AND AVOIDANCE. § 1052 contract, and things placed in statu quo when the contract is rescinded ; for courts are very reluctant to allow the infant to use his privilege as a means of defrauding others, at the same time that they resent all efforts of adults to impose fraudulently upon him.®° The rule is hased on the principle that the infant is pos- sessed of property which, in equity and good conscience, he may not retain after he disaffirms."' He must do equity if he sects equitable relief."^ It follows that a grantor of real estate cannot defeat the right of the infant to disaffirm the transaction by refus- ing to accept a reconveyance.'* No action can usually be main- tained against him if after majority he sells goods which he bough while a minor but does not pay for,"' but a creditor may replevin the goods sold under a disaffirmed contract.^ § 1052. Avoidance Through Agents, &c. It has been said that all acts done by an infant through an agent's intervention are void; but they are (in many instances at 95. Whether a minor Tfho deals with 96. Gannon v. Manning, 42 App. D. an adult whom he fraudulently in- C. 206. duces to think him of full age is 97. Gruba v. Chapman (S. D.), 153 estopped from avoiding the transac- tion for infancy, see Baker v. Stone, 136 Mass. 405; § 1033. If an infant retains the property, the adult cannot recoup its use during minority against the price demanded. McCarthy v. Henderson, 138 Mass. 310. Some of the latest cases lay much stress upon the inherent fairness or unfair- ness of a transaction, where one party or the other tries to recover his con- sideration. See Johnson v. Mutual Life Co. (189'4), Minn. If an infant advanced money on his voidable eon- tract, it is lost to him when he re- scinds, unless fraudulently obtained from him. Chicago Life Association V. Hunt, 127 111. 359. He cannot at all events rescind without returning what he received, so far as it remains. Bloomer v. Nolan, 36 Neb. 51; Nanny V. Allen, 77 Tex. 240, 301 ; Harvey v. Briggs, 68 Miss. 60; Evans v. Mor- gan, 69 Miss. 328. But if the property was injured while in his keeping, he is not liable by the adult standard of bailment. Stack v. Cava- naugh (1894), N. H. N. W. 929. 98. Evants v. Taylor, 18 N. M. 371, 137 P. 583, 50 L. E. A. (N. S.) 1113. 99. Where an infant vendee of per- sonal property has sold to a third person, the vendor, who retains pos- session against such vendee, cannot defend an action of trover brought by such second vendee on the ground of the original grantee's infancy. El- der V. Woodruff, etc., Co., 9 Ga. App. 484, 71 S. E. 806; Lamkin & Foster v. Ledoux, 101 Me. 581, 64 A. 1048. The infant is not liable for conver- sion where he spends the amount re- ceived and afterv/ards disaffirms. Brude v. Curtis, 183 Mass. 317, 67 N. E. 317, 62 L. E. A. 755. See also, to the same effect. Stone v. Eabinowitz, 45 Misc. 405, 90 N. T. S. 301. 1. Eobinson v. Berry, 93 Me. 320, 45 A. 34. But he cannot bring replevin and recover a money verdict where the in- fant no longer has the goods. Kay v. Haupt, 63 Pa. Super. Ct. 16. § 1053 INFANCY. 1264: least) rather to be regarded as voidable.* The rescission of a minor's contract as to personal property or his person, then, by means of an agent whom he employs, should not be pronounced void, if not plainly to the infant's prejudice, nor set up in de- fence by the adult with whom he contracted. And where an in- fant, with his father's assent, sent an attorney at law to repudiate his purchase for him, instead of repudiating personally, the adult, in a recent case, was not permitted to dispute this disaffirmance as illegally made.* His voidable act may be also disaffirmed for him by his guardian in some casra.* § 1053. Ratification, &c., as to Infant Married Spouse. Since a married woman conveys her lands by force of statute provisions, perplexing questions may arise as to the effect of a conveyance executed in conformity with late acts, yet ineffectual because of her infancy.^ It would appear from some late American cases, that the wife still continuing covert after becoming of age, acts w'hich might corastitute ratification in ordinary cases may not always be set up against her.* That her husband prevented her from disaffirming upon her majority is a good excuse for her delay while he lived.'' On the other hand it has been held that when a deed is disaffirmed because of the wife's minority it is avoided as 2. Swpra, § 1012. See Sawyer v. But a reasonable time after discover- Northan, 113 N. C. 261. ture is allowed an infant wife, as 3. Towle V. Dresser, 73 Me. 25'3. cases now decide the point, though Especially, as the authority of the length of time may have intervened, agent was not especially objected to See Sehouler, Hus. & Wife, § 178; when the notice was given and the de- Sims v. Everhardt, 102 TJ. S. 300 ; mand made upon the adult. lb. Wilson v. Branch, 77 Va. 65; Eyman 4. Benson v. Tucker, 312 Mass. 60, v. Crawford, S6 Ind. 363, 577; Eich- 98 N. E. 589, 41 L. E. A. (N. S.) ardson v. Bate, 93 Ind. 423 ; Stull v. 1219. Harris, 51 Ark. 294; supra, Part II, 5. Harbman v. Kendall, 4 Ind. 403. ch. XI. Infant husband's conveyance 6. Matherson v. Davis, 3 Cold. 443 ; voidable. Barker v. Wilson, 4 Heisk. Miles V. Lingerman, 34 Ind. 385. The 268. equity doctrine, to argue from the case Where one is under two disabilities of marriage settlements, appears to — infancy and coverture — when a be that the wife may by acts give cause of action accrues, the statute of validity to such deeds, after attain- limitations will not begin to run until ing full age and notwithstanding her both are removed. North v. James, coverture. See supra, § 1001. Dis- 61 Miss. 761. But see contra, as to af&rmanice soon after attaining ma- suspending the running of the stat- jority is permitted. Scranton v. ute, Parish v. Cook, 78 Mo. 212 ; Ortii Stewart, 52 Ind. 69, 92; Thor- v. De Senavides, 61 Tex. 60. maehlen v. Koeppel, 86 Wis. 378. 7. Sims v. Bardoner, 86 Ind. 87. 1265 BATIFICATION AND AVOIDANCE. § 1054 to the husband who joined her in making it.* But a married woman is sometimes estopped by her own acts ; as in a case where her equitable interest in land was sold while she was a minor, to- gether with the interests of adult parties, and she received her share of the proceeds some years after attaining majority.® It would appear that any affirmance which a wife in a just trans- action may make with her husband's acquiescence and her own free consent after reaching majority, will bind her.^" And her dis- affirmance is subject to the usual qualifications applicable to in- fants in general. Coverture is fast becoming unpopular in these days^ and the disabilities of infancy and coverture are at any rate separate and independent; and the mere fact that both occur in connection with the same act does not give to either disability greater force than it would have had separately. ^^ Modem legis- lation may in a sense remove the disability of coverture ; but this does not remove the disability of infancy, with its incidental protection." § 1054. Rules; How Far Chancery May Elect for the Infant. By a well-known rule of equity, the proeceds of lands sold during minority retain the character of real estate, and where the personal estate becomes land its original character is like- wise retained. And such property remains real or personal still, even after the infant attains majority, so long as there is no act or intent on his part to change its character ;^* but the character ceases when he attains majority, and obtains possession of the proceeds." A court of chancery, however, as the protector of the young 8. Craig v. Van Bebter, 100 Mo. 5S8. Nor should she retain benefits 584. and yet claim the right to avoid. Bull 9. Anderson v. Mather, 44 N. T. v. Sevier, 88 Ky. 515. Still less 249. And see Sehmitheimer v. Eise- should she, after reaching age, use the man 7 Bush, 298. consideration in a manner which in- 10. Sims V. Smith, 99 Ind. 469. And dicates affirmance and then seek to see Ellis v. Alford, 64 Miss. 8; Logan disaffirm. Buchanan v. Hubbard, 119 V. Gardner, 136 Pa. St. 588. Ind. 187. 11. Logan V. Gardner, 136 Pa. St. 12. See Cummings v. Everett, 82 Me. 588. Hence, when a woman becomes 260. both discovert and of full age, she 13. Foreman v. Foreman, 7 Barb, may be estopped like any other person, 215. svi juris. Logan v. Gardner, 136 Pa. 14. Forman v. Marsh, 1 Kern, 544. St. 588. Clear disaffirmance of a deed Upon the death of the infant after executed during minority should be such conversion the inheritance or dis- eeasonably made by her, or she may tribution is according to the original be estopped by her own conduct and character of the property. See Paul laches. Logan v. Gardner, 136 Pa. St. v. York, 1 Tenn. Ch. 547. 80 § 1054 INFAKCY. 1266 has an extensive jurisdiction of matters affecting an infant's prop- erty rights, and may, upon a full hearing, the infant himself being duly summoned and his rights duly represented, enter a decree which, if procured without fraud or undue injury, will be binding. Of this jurisdiction we have already treated,^^ as also of statutes authorizing sales of an infant's real estate.^* Infants must be parties to bills in equity, as, for instance, in affecting their title to real estate; and making their guardians parties is not sufEcient, as it is generally ruled, without service of process upon the infant himself as the usual publication of notice.''^ But the practical result must be, wherever chancery jurisdiction is broadly upheld, that the court in many instances, the infant being duly a party to the proceedings, elects for him.^* The in- fant's own affirmance of the decree in chancery or under statute, as by accepting and retaining the benefits, delaying procedure to reopen the matter for alleged fraud or other infirmity, is of course a double confirmation.^* 15. Part IV., ehs. 6, 7. But as to "allowing the infant his day" on reaching majority, see next chapter. Jurisdiction of the court over an in- fant ward is not taken away because the infant is insane. In re Edwards, L. E. 10 Ch. D. 605. 16. 26.; Chappell v. Doe, 49 Ala. 153. 17. Tucker v. Bean, 65 Me. 352; Bowland v. Jones, 62 Ala. 322; Cook V. Rogers, 64 Ala. 406; BonneU v. Holt, 89 111. 71; Carver v. Carver, 64 Ind. 19'5. But see Burrus v. Bur- rus, 56 Miss. 92; Scott v. Porter, 2 Lea, 224. And as to cancelling a purely personal contract this rule is all the more imperative. Insurance Co. V. Bangs, 103 U. S. Supr. 435. Concerning joinder of guardian, see next chapter. 18. Abney v. Abney, 182 Ala. 213, 62 So. 64. Chancery may authorize leases for the enhancement of the real estate of infants if manifestly for their inter- ests. Talbot V. Provine, 7 Baxt. 502. As to partition sale held binding, see Cocks V. Simmons, 57 Miss. 183 ; Scott V. Porter, 2 Lea, 224. As to decree enforcing a vendor's lien, see Cocks V. Simmons, 57 Miss. 183. As to sale for maintenance or better in- vestment, see Sharp v. Findley, 59 Ga. 722 ; supra. Part IV, chs. 6, 7. Chan- cery may compromise a claim in which infants are interested, even against next friend or guardian ad litem. In re Birchall, 16 Ch. D. 41. Or exercise discretion as to selling either realty or personalty, or both. Jones v. Sharp, 9 Heisk. 660. And see Knotts V. Steams, 91 U. S. 638; Carr v. Branch, 85 Va. 597. Decree sustained, notwithstanding the birth of a post- humous child not considered when the sale was ordered. 76. See also Good- man V. Winter, 64 Ala. 410. 19. Walker v. Mulvean, 76 111. 18; Corwin v. Shoup, 76 111. 246. See further, as to the binding effect of decrees and judgments, next chapter. 1267 ACTIONS. § 1055 CHAPTEE VI. ACTIONS BY AND AGAINST INFANTS. Section 1055. Actions at Law by Infants; Suit or Defence by Next Friend or Guardian. 1056. General Rules as to Actions by Next Friend. 1057. Powers, Qualifications and Duties of Next Friend. 1058. Action at Law Against Infant; the Guardian Ad Litem. 1059. Chancery Proceedings by or Against Infants; Corresponding Bule. § 1055. Actions at Law by Infants; Suit or Defence by Next Friend or Guardian. It is a fundamental principle that the rights of property shall vest in infants, notwithstanding their tender years; and inci- dentally thereto they have the right of action. Yet it is clear that if the infant be unfit to make a contract he is unfit to sue on his own behalf. Hence is the rule that while process is sued out in the infant's own name, it is in his name by another ; that is to say, some person of full age must conduct the suit for him. The same principle applies to all civil actions, whether founded on a contract or not. At common law, infants could neither sue nor defend, except by guardian. They were authorized, by Stat. Westm. 1, to sue by prochein ami (or next friend) against the guardian in chivalry who had aliened any portion of the infant's inheritance."" Stat. Westm. 2, oh. 15, extended this privilege to all other cases where they could not sue formerly. Lord Coke lays down that, since these statutes, the infant shall sue by prochein ami and defend by guardian."* And Fitzherbert is to the same effect."" But Mr. Hargrave thinks it probable that Fitzherbert and Lord Coke did not mean to exclude the election of suing either by procheim ami or by guardian."* And whether they did or not, guardianship at the present day, so unlike guardianship as they understood it, justifies the modem practice ; which is to appoint a special person as prochein ami only in case of necessity, where an infant is to sue his guardian, or the guardian will not sue for him, or it is im- 20. Macphers. Inf. 13, 352. 22. F. N. B. (27) H. 21. 2 Inst. 261, 390; Co. Litt. 135b; 23. Harg. n. Co. Litt. 135b. 3 Eobinson's Pract. 229. § 1055 INFANCY. 1268 proper that the guardian should be the prochein ami. In other cases, the rule is to sue by guardian or prochein arai^^ or, under One reason given for the rule ift 24. Sandeen v. Tsehider, 205 F. 252, 123 C. C. A. 456. Though not tech- nically a party, the next friend is really such in the view of the statutes and in practice. Swoope v. Swoope, 173 Ala. 157, 55 So. 418. But see Slafter v. Savage (Vt.), 95 A. 790; Truman Cooperage Co. v. Shelton (Ark.) 207 S. W. 42; Nashville, etc., Co. V. Barefield, 93 Ark. 353, 24 S. W. 758; Parker v. Wilson, 98 Ark. 553, 136 S. "W. 981 (stay of judgment granted, 99 Ark. 344, 137 8. W. 926) ; Watts V. Hicks, 178 S. W. 924; Buk- ley V. Collins, 177 S. W. 920; Toomer V. Fourth Nat. Bank of Jacksonville, 67 So. 225; Linder v. Brown, 137 Ga. 352, 73 S. E. 734; Hurst v. Goodwin, 114 Ga. 585, 40 S. E. 764, 88 Am. St. E. 43; Perkins v. Wright, 37 Ind. 27; Winer v. Mast, 146 Ind. 177, 45 N. E. 66; Teeple v. State, 171 Ind. 268, 86 N. E. 49. Where, after the removal of a minor's next friend, she could not obtain another to act as such, she was permitted to prosecute without a next friend, as a poor person. Wright V. McLarinan, 92 Ind. 103. A statute providing for the bring- ing of an action within a certain time after the removal of disabilities does not prevent bringing action by next friend before that time. Edwards v. Beall, 75 Ind. 401; Harrison v. Mil- ler, 87 Kan. 48, 123 P. 854; Guy v. Hansow, 86 Kan. 933, 122 P. 879; Wilson V. Unselt, 12 Bush (Ky.), 215; Hopkins v. Virgin, 11 Bush (Ky.), 677; Eaton v. Eaton, 112 Me. 106, 90 A. 977, 52 L. E. A. (N. S.) 799. A statute providing that no action shall be maintained on a minor's contract uiJess ratified after major- ity does not prevent an action during minority to recover back the consid- eration of a disaffirmed contract. Hilton V. Shepherd, 92 Me. 160, 42 A. 367; Sick v. Michigan Aid Ass'n, 49 Mich. 50, 12 N. W. 905. that the appointment is necessary a* that the defendant may look to some one who is responsible for costs. Sick V. Michigan, etc.. Ass 'n, 40 Hich. 50, 12 N. W. 905 ; Memphis, etc., Oo. V. Archer (Miss.), 82 So. 315; Scott V. Eoyston, 223 Mo. 568, 123 S. W. 454; Jones v. Kansas City, Ft. S. * M. E. Co., 178 Mo. 528, 77 S. W. 890, 101 Am. St. E. 434; Melzner t. Northern Pac. Ey. Co., 46 Mont. 163, 127 P. 146 ; Clasen v. Pruhs, 69 Feb. 278, 95 N. W. 640; Settle v. Settle,. 141 N. C. 553, 54 S. E. 445; Willard V. Mohn, 24 N. D. 390, 139 N. W. 979; Gillette v. Delaware, L. & W. E. Co. (N. J.), 102 A. 673; Heatk V. Madoek, 81 N. J. Eq. 469, 86 A. 945; Fox v. Interurban St. Ey. Co., 86 N. T. 8. 64, 42 Misc. 538; Gruner V. Euffner, 110 N. T. 8. 873, 59 Misc. 266; Gruner v. Euffner, 119 N. T. S. 942, 134 App. Div. 837 (reh. den., 121 N. T. 8. 1133, 136 App. Div,. 945) ; 1% re Eousos, 119 N. Y. S. 34; First State Bank of Vinita v. Fay (Okla.), 159 P. 505; Hill v. Eeed, 23 Okla. 616, 103 P. 855; Everart v. Fischer, 75 Ore. 316, 147 P. 189; Everart v. Fischer, 145 P. 33 (judg. rev. or reh., 75 Ore. 316, 147 P. 189) ; Ferenez v. Greek Catholic Union, 54 Pa. Super. Ct. 642. In Ehode Island he may recover during infancy without a guardian or next friend. Vaughn v. Carr (E. I.), 95 A. 569. Where, after a proceeding in which a guardian ad litem acted for an in- fant defendant, a question arose aa to the guaridan's fees, it was held that another guardian should be ap- pointed to act for the infant in that particular matter. Loftis v. Butler (Tenn.), 58 S. W. 886; Eace v. Decker (Tex. Civ. App.), 214 S. W. 709; Owen V. Appalachian Power Co., 78 W. Va. 596, 89 8. E. 262 (holding that except in a justice's court a 1269 ACTIONS. § 1056 ihe civil law, by a tutor ad hoc ^^ aa provided under that law. An infant cannot prosecute an action either in person or by attorney. This is well settled.^' But an infant may sue by his next friend though he have a guardian, if the guardian does not dissent.^^ And in some States the choice allowed the infant isi still more liberal.^* Where the disability has been removed under a statute, he may sue as though of age.^* The rule applies even though the plaintiff is a married woman, if a minor.*" An infant may contest a will by next friend.*^ Statutes have sometimes pro- vided for the appointment of guardians ad litem for infant plain- tiffs." § 1056. General Rules as to Actions by Next Friend. If the action is commenced without a next friend, one may be admitted to prosecute on behalf of the infant.** !N"ot unfrequently, too, the next friend who brought the suit is removed and another next friend need not be appointed to prosecute an action for an infant) ; Claridge v. Crawford, 1 Dowl. & By. 13; 3 Eobinson's Pract. 230; Tounge V. Tounge, Cro. Car. 86; Goodwin v. Moore, Cro. Car. 161; Aptho'rp v. Backus, Kirby, 407; McGiffin v. Stout, Coxe, 92; Blackman v. Davis, 43 Ala. 184 ; Succession of Becnel, 117 La. 744, 42 So. 256; Becnel v. Stew- art, Id. 25. Lamkin v. Succession of filhiol, 123 La. 181, 48 So. 881. But see Lamkin v. Succession of Filhiol, 123 La. 181, 48 So. 88. 26. Cro. Eliz. 424; Cro. Jac. 5; 1 Co. Litt. 135 6, Harg. n., 220; Miles v. Boyden, 3 Pick. 213 ; Clark v. Turner, 1 Boot, 200 ; Mockey v. Gray, 2 Johns. 192 ; Timmons v. Timmons, 6 Ind. 8 ; Nicholson v. Wilbom, 13 Ga. 467. 27. Thomas v. Dike, 11 Vt. 273; Bobson V. Osbom, 13 Tex. 298. 28. Hooks V. Smith, 18 Ala. 338. 29. Merriman v. Sarlo, 63 Ark. 151, 37 S. W. 879. $0. Hays v. Bowden, 159 Ala. 600, 491 So. 122. 31. Schnee v. Sehnee, 61 Kan. 643, 60 P. 738; Campbell v. Fichter, 168 Ind. 645, 81 N. E. 661; Dixon v. Gozine, 118 N. Y. S. 1103 (holding that this cannot be done under the New York statute). 32. The omission to comply with the Arizona statute requiring that the guardian consent to the appointment in writing is not reversible error where the guardian brought and prosecuted the action. Arizona Eastern B. Co. V. Carillo, 17 Ariz. 115, 149 P. 313; Johnston v. Southern Pac. Co., 150 Cal. 535, 89 P. 348; Grosovsky v. Goldenberg, 86 Minn. 378, 90 N. W. 782; Flaherty v. Butte Electric By. Co., 40 Mont. 454, 107 P. 416; MuUer T. Manhattan By. Co., 108 N. Y. 8. 852, 124 App. Div. 295 ; Hill v. Eeed, 23 Okla. 616, 103 P. 855; Mitchell v. Cleveland, 76 S; C. 432, 57 S. E. 33; Hiers v. Atlantic Coast Line B. Co., 75 S. C. 311, 55 S. E. 457; Schuyler V. Southern Pac. Co., 109 P. 458 (reh. den. [1910], 37 Utah, 612, 109 P. 1025). In West Virginia the statute re- quires the appointment of a guardian ad litem before bringing suit, who must accept the appointment and agree to be responsible for costs. Blair v. Henderson, 49 W. Va. 282, 38 S. E. 552 ; Green v. Appleton Woolen Mills, 155 N. .W. 958. 33. A father who sues in his own § 1056 INFANCY. 1270 appointed, on the ground that it is for the infant's benefit.** If the infant attains majority pending the action, the authority of the next friend ceases ipso facto, but the action does not abate, and the infant may thereafter prosecute it as an adult.*^ Where an infant has, after bringing suit (not by guardian or next friend), become of age, no amendment, nor appearance of a guardian or next friend is necessary.*® ISTo infant plaintiff is concluded by a settlement of the case which his next friend makes out of court without a formal judicial sanction.*' Nor will a settlement in court on a judgment by agreement be permitted to stand which Missouri Pac. Ey. Co. v. Leib, 23 Colo. App. 364, 129 P. 569 ; FUnt v. Flint, 3 Boyce (Del.), 155, 82 A. 538; Ohio Valley Tie Co. v. Hayes, 180 Ky. 469, 203 S. W. 193 ; Bernard v. Pittsburg Coal Co., 137 Mich. 279, 100 N. W. 396, 11 Det. Leg. N. 246; Corbett v. Metropolitan Life Ins. Co., 55 N. Y. S. 775, 37 App. Div. 152 ; McGarity v. New York City Ey. Co., 101 N". Y. 8. 191, 51 Misc. 666; Webb v. Harris, 33 Okla. 491, 121 P. 1082; Johnson v. Alexander (Okla.), 167 P. 989. Where the trial is after attainment of majority, the want of a next friend when the action was commenced, is not ground for a new trial. Webb v. Harris, 32 Okla. 491, 121 P. 1082; Mahoney v. Park Steel Co., 217 Pa. 20, 66 A. 90 ; Seigler v. Southern Ey. Co., 85 S. C. 345, 67 S. E. 296; Connor V. Ashley, 57 S. C. 305, 35 S. E. 546; Spell V. William Cameron & Co. (Tex. Civ.), 131 S. W. 637; Slafter v. Sav- age (Vt.), 95 A. 790. 36. Bell V. Burkhalter, 183 Ala. 527, 62 So. 786; Moore v. Moore, 74 N. J. Eq. 733, 70 A. 684; Bills v. Birkenhalter, 183 Ala. 527, 62 S. 786 ; Woodman v, Eowe, 59 N. H. 453. See Bryant v. Hilton, 66 Ga. 477, as to amendment of husband's action as next friend after his infant wife be- comes of age. 37. Tripp V. Gifford, 155 Mass. 108; O'Donnel v. Broad, 149 Pa. St. 24. Though the next friend be the child 's father, it is the same. Ih.; § 1035A. name for his child's injury cannot be substituted on motion as next friend, because that would be a new action. Orby V. Dowdy (Ark.), 213 S. W. 739; Howell v. American Bridge Co. (Del.), 53 A. 53. The want of a next friend is cured by verdict. Vale Eoyal Mfg. Co. V. Bradley, 8 Ga. App. 483, 70 S. E. 36; Eoyal v. Grant, 5 Ga. App. 643, 63 S. E. 708; Blood v. Har- rington, 8 Pick. (Mass.) 552; Smith V. Carney, 127 Mass. 179; Haines V. Oatman, 2 Doug. (Mich.) 430 Bubanks v. McLeod (Miss.), 69 So 289; Earning v. Metropolitan St, Ey. Co. (Mo.), 50 S. W. 791; Chris man v. Divinia, 141 Mo. 122, 41 S. W 920; Power v. Lenoir, 22 Mont. 169, 56 P. 106; Manfull v. Graham, 55 Neb. 645, 76 N. W. 19, 70 Am. St. E. 412; Moore v. Moore, 74 N. J. Bq. 733, 70 A. 684 (holding that a motion to dismiss was not available) ; Con- roy V. Bigg, 109 N. Y. S. 914 ; Good- friend V. Eobins, 92 N. Y. S. 240; Eook V. Dickinson, 78 N. Y. S. 287, 38 Misc. 690, 11 N. Y. Ann. Gas. 454; Robertson v. Blair, 56 S. C. 96, 34 S. E. 11, 76 Am. St. E. 543. 34. Barwick v. Eackley, 45 Ala. 215 ; Martin v. Weyman, 26 Tex. 460; Mills V. Humes, 22 Md. 346. As where the lext friend refuses to appeal. Dupuy V. Welsford, 28 W. E. 762. 35. Therefore an infant may satisfy a judgment recovered after majority in an action originally by next friend. City, etc., Co. (Cal.), 183 P. 267; 1271 ACTIONS. § 1056 appears collusive to the child's prejudice.*' The next friend usu- ally has power to receive payment of and satisfy the judgment." But not to compromise it,*° or to submit it to arbitration.*"- The mtant cannot bind himself by a satisfaction, compromise or re- lease.*^ But advantage must be taken by plea in abatement of the infant's suing by attorney, or by application to a judge, or the court, for it is not error after judgment either on verdict or by default.*' The same rules are frequently applied to a parent who 38. Merchants' Despatch Trans. Co. 44, 68 N. E. 44?; McGillvray v. Em- V. Furthmann, 149 111. 73; Tennessee Coal & Iron B. E. Co. v. Hayes, 97 Ala. 201. 39. Where a statute authorizes only the general guardian to receive the property of an infant, the next friend cannot e:Jectively satisfy the judg- ment. Paskewie v. East St. Louis & Suburban R. Co., 281 111. 385, 117 N. E. 1035, L. E. A. 1918C, 52. The minor will not be bound by the settlement whore the judgment is by consent and where the merits of the claim was not considered and no evi- dence heard. Leslie v. Proctor, etc., Co., 102 Kan. 159, 169 P. 193, L. E. A. 1918C, 55. It is otherwise where the settlement was made under the direction of the court under a statute authorizing a next friend to settle such claims. Clark V. Southern Can Co., 116 Md. 85, 81 A. 271, 36 L. E. A. (N. S.) 980; Baker v. Pere Marquette E. Co., 142 Mich. 497, 105 N. W. 1116, 13 Det. Leg. N. 780. The next friend is sometimes re- quired to give bond before receiving payment of the judgment. Parriss V. Jewell, 57 Tex. Civ. App. 199, 122 S. W. 399; State v. Ballinger, 41 Wash. 23, 82 P. 1018. But see Collins V. Gillespey, 148 Ala. 558, 41 So. 930 (holding that only the general guar- dian has such authority). 40. A court of chancery has power to authorize the settlement of a pro- ceeding by a minor to contest a will, upon terms which, in the opinion of the court, are advantageous to the minor. Williams v. Williams, 204 III. ployers* Liability Assurance Co., 214 Mass. 484, 102 N. E. 77, 46 L. E. A. (N. S.) 110; Beliveau v. Amoskeag Mfg. Co., 68 N. H. 225, 40 A. 734, 44 L. R. A. 167, 73 Am. St. E. 577; State V. Ballinger, 41 Wash. 23, 83 P. 1018. 41. Millsaps V. Eates, 134 N. C. 486, 46 S. E. 988, 42. Arizona Eastern E. Co. v. Car- iUo, 17 Ariz. 115, 149 P. 313; Pitts- burg C. G. & St. L. Ey. Co. v. Healey, 170 111. 610, 48 K. E. 920; Interstate Coal Co. V. Trivett, 155 Ky. 825, 160 S. W. 728; Interstate Coal Co. v. Love, 153 Ky. 323, 155 S. W. 746. But where it appears that the sum received is adequate, he may only re- cover nominal damages on an action to disaflSrm the settlement. Baker v. Lovett, 6 Mass. 78, 4 Am. Dee. 88. In Michigan it is held that where the infant makes such a settlement it is voidable only, and that he cannot disaffirm it during minority and sue for his injuries. Lansing v. Michigan Cent. E. Co., 126 Mich. 663, 86 N. W. 147, 8 Det. Leg. N. 183, 86 Am. St. E. 567; Theriualt v. Breton, 114 Me. 137, 95 A. 699; Hollinger v. York Eys. Co., 225 Pa. 419, 74 A. 344; Tumey v. Mobile & 0. E. Co., 127 Tenn. 673, 156 S. W. 1085. 43. 2 Saund. Pleading, 207 ; Bird v. Pegg, 5 B. & Aid. 418; Pinley v, Jowle, 13 East, 6; Apthor'p v. Backus, Kirby, 407. But as to the infant himself, see Bird v. Pegg; Jones v. Steele, 36 Mo. 324. He may repudi- ate the judgment if entered against him. Hicks v. Beam, 112 N. C. 642, § 1057 INFANCY. 1272 sues on behalf of minor children, but not as guardian or next friend. Where infancy of the plaintiff is pleaded in abatement to a suit brought by a minor in his own name without any guar- dian or next friend, the court may allow the infant to amend by inserting in his writ that he sues by A., his next friend.** Nor does this rule deprive the infant of the professional services of an attorney ; it relates to the parties to the suit.*^ The judgment becomes upon him if entered after his majority.** If the action is properly brought and prosecuted the infant is bound by the judgment as an adult would be,*' but he is not bound by an adverse judgment in an action commenced without a guardian or next friend.*' § 1057. Powers, Qualifications and Duties of Next Friend. Generally speaking, when an action is brought by an infant, he sues in his own name by a certain person as next friend. A prochein ami, commencing his authority with the writ and dec- laration, can only maintain the suit for such causes of action as may be prosecuted without special demand; as for personal in- juries done to the infant, or for sums of money where the writ itself is considered as the demand.*® In England, it was con- sidered that the special admission of a guardian for an infant to appear in one case would serve for others."" But the modern rule is that the special admission of prochein ami or guardian, to prose- cute or defend for an infant, shall not be deemed an authority to prosecute or defend in any but the particular action specified.'^ Sometimes there will be an advantage in suing by guardian if this can legally be done.''^ In any event, the interests of the person who sues as guardian or next friend must not be hostile to that of the infant.'^ The guardian, like the prochein ami, is, in English practice, ap- pointed by the court before the plaintiff can proceed in the action, and no legal right of parentage or of guardianship will enable any one to act for the infant without such appointment."* But where 44. Blood V. Harrington, 8 Pick. 49. Miles v. Boyden, 3 Pick. 219. 552. 50. Archer v. Frowde, 1 Stra. 304. 45. People v. New York, 11 Wend. 51. 2 Saund. Plead. 207; Maephers. 164. > Inf. 353. 46. Hicks V. Bean, 112 N. C. 643. 52. 3 Eobinson's Pract. 229. 47. McCreary v. Creighton, 76 Neb. 53. George v. High, 85 N. C. 113; 179, 107 N. W. 240. Patterson v. Pullman, 104 HI. 80. 48. Di Meglio v. Baltimore & O. E. 54. Maephers. Inf. 353, Co. (Del.), 74 A. 558. 1273 ACTIONS. § 1057 the infant's father, being a necessary witness, could not properly be prochein ami in a certain suit, the court, on motion, appointed a friend of the family with the father's concurrence.'"' And the father's natural right to represent his child as next friend is to be respected,^" though he does not describe himself as next friend."' No authority from the infant to the guardian or prochein ami to sue is necessary, though the infant be on the very eve of ma- jority ; but it is intimated that the court might interfere if fraud were shown."* An action to recover money or personal property belonging to an infant may be brought in the infant's name by his next friend, though he has a general guardian."' As the prochein ami is an officer of the court, if the infant wishes him removed he must apply to the court for that purpose, and an entry of the change should be made of record.'" But on the plaintiff coming of age, he may, it seems, remove the prochein ami of his own au- thority, and appear thereafter by his owa attorney.*^ While, in theory, however, the prochein ami is still legally appointed by the court, such formalities are now, in practice, very generally waived. In Connecticut, Rhode Island, Massachu- 55. Claridge v. Crawford, 1 Dowl. k Ey. 13. 56. Woolf V. Pemberton, 6 Ch. D. 19. See Strong v. Marcy, 33 Kan. 109. 57. In re Braekey's Estate, 147 N. W. 188. By statute in Louisana a father may sue on behalf of his infant child without joining the mother. Sear- borough V. Louisana Ey. & Nav Co. (La.), 82 So. 286; Williams v. Pope Mfg. Co., 52 La. Ann. 1417, 27 So. 851, 50 L. E. A. 816. The same has been permitted where the person acting for the infant styles himself guardian ad litem, if it ap- pears that he is really acting as next friend. Mtaa. Indemnity Co. v. State (Miss.),, 57 So. 980; Donald v. City of Ballard, 34 Wash. 576, 76 P. 80 (hold- ing that the father of an infant might flue as guardian ad litem). 58. Morgan v. Thome, 9 Dowl. 228. And see Barwiek v. Eaekley, 45 Ala. 215. 59. Segelken v. Meyer, 94 N. C. 473. 60. Davies v. Locket, 4 Taunt. 765 ; Morgan v. Thome, supra. 61. See Bac, Abr., Infant, K. 2; Patton V. Furthmier, 16 Kan. 29. Dismissal of action by next friend for infant, because not for the in- fant's interest. Bull v. Miller, 59 la. 634 (code) . And see dismissal of suit brought without leave of court where the next friend 's interest is adverse to the infant. Patterson v. Pullman, 104 HI. 80. Local codes furnish their respective rules of practice; and statute formalities should be care- fully observed. But special aver- ments of infancy, etc., are not com- monly required. Dodd v. Moore, 91 Ind. 522. And see as to form G. C. & S. F. Ey. Co. v. Styron, 66 Tex. 421. Whether an infant or his next friend can sue in forma pauperis, see Cargle v. Railroad Co., 7 Lea, 717; Wright V. McLarinan, 92 Ind. 103; 13 Abb. (N. T.) N. Cas. 182. A bond under some codes is required of the next friend. Pace v. Pace, 19 Fla. 438. As to actions brought in the § 1057 INFANCY. 1274 setts, Virginia, and other States, no entry of record is required admitting a person to sue as guardian or next friend, the recital in the writ and count being deemed sufficient evidence of admission unless seasonably challenged by the opposite party, when the order may be supplied, or the court on its discretion may remove the party .*^ In New York, on the other hand, a prochein ami must be appointed for the infant plaintiff before process is sued out ; and such is the practice in some other parts of this country.*' In some States it is deemed proper to prove infancy in advance, and henoe the right to sue by next friend.'* So, too, in this country, more deference seems to be shown to the infant's wishes than in England. Thus, in Massachusetts, the court, on the personal petition of a minor twenty years of age, withdrew the authority of the prochein ami, and ordered all further proceedings in the suit postponed until the minor should attain full years.®* In the choice of a guardian and prochein ami, a minor above fourteen has much latitude of discretion ; and when he attains full age he may enter the fact upon record, and with- out further formality proceed to conduct the suit for himself.'* name of the State, see Albert v. State, 66 Md. 325. 62. Gillespie v. Collier, 224 F. 298, 139 C. C. A. 534. A recital in the judgment for an infant plaintiff that the action of the next friend in suing was ratified cures the omission of an order appointing the next friend. Gillespie v. Collier, 224 F. 298, 139 C. C. A. 534; Swoope T. Swoope, 173 Ala. 157, S. W. 418. In Arkansas by statute the next friend is under the control of the court, which may dismiss him and substitute another. Nashville, etc., Co. V. Barefield, 93 Ark. 353, 124 S. W. 758. The same rules obtains in Alabama. Swoope v. Swoope, 173 Ala. 157, 55 S. 418. It is otherwise where a foreign guardian, not qualified to sue in the forum, brings a suit for the minor, when an amendment appointing a next friend may be allowed by the court. St. Louis I. M. & S. Ey. Co. v. Haist, 71 Ark. 258, 72 S. W. 893, 100 Am. St. E. 65 ; Butler v. Winchester Home for Aged Women, 216 Mass. 567, 104 N. E. 45. And seemingly it may ba necessary where the infants appoint none of their own. Sick v. Michigan, etc., Ass'n, 49 Mich. 50, 12 N. W. 905. See Guild v. Cranston, 8 Cush. 506; Boynton v. Clay, 58 Me. 236; BurweU v. Corbin, 1 Eand. 151; 3 Eobinson 's Pract. 230 ; Trask v. Stone, 7 Mass. 241; Judson v. Blanchard, 3 Conn. 579; Klaus v. State, 54 Miss. 644. And see Stumps v. Kelley, 22 111. 140; Gray v. Parke, 155 Mass. 443; Murray v. Barber, 16 R. I. 512. The authority of next friend con- tinues, though without appointment, until the court removes him. Common- wealth V. Vieth, 155 Mass. 443. 63. Wilder v. Ember, 12 Wend. 191 ; Haines v. Oatman, 2 Doug. 430; Grantman v. Thrall, 44 Barb. 173. 64. Byers v. Dea Moines, etc., E. E. Co., 21 la. 54. 65. Guild V. Cranston, 8 Cush. 506. 66. Clark v. Watson, 2 Ind. 399; Shuttlesworth v. Hughey, 6- Eich. 329. 1275 ACTIONS. § 1058 Where an infant lias brought an action by his next friend, and has recovered damages whifch have been received by the attorney, the money is the money of the infant, and he may sue the attorney for it." The codes of some States require payment of the amount recovered into court, until a guardian is appointed to hold the fund. Upon a writ of error the court may in its discretion select another next friend for the minor." A prochein ami is liable for costs, and the remedy is against his for attachment, which should be absolute in the first instance.'* This is the English practice. It vrould appear that execution can- not issue against the infant himself; and this from the very cir- cumstance that the next friend is, in theory, one yf\io comes for- ward to assume all such liabilities.'" But in conformity with statutes in Massachusetts, it is held that a prochein ami, as such, is not liable for costs 5'^ nor does he seem to be always stirctly con- sidered in our courts a party to the suit ;'^ and the infant plaintiff is made liable for his own costs." § 1058. Action at Law Against Infant; the Guardian ad Litem. An infant can appear and defend in civil suits by guardian only, and not by attorney, or in person.'* An appearance by at- torney merely does not bind him.'" He cannot answer by next 67. Collins v. Brook, 4 Hurl. & Nor. 431; Smith v. Floyd, 1 Pick. 275. Cf. 276. And see Smith v. Eedus, 9 Ala. statutes of other States. Kleffel v. 99. Bullock, 8 Neb. 336. 68. Ames v. Ames, 148 111. 321. 74. Edwards v. Edwards, 142 Ala. 69. Newton v. London, Brighton, 267, 33 S. 82; Williamson v. Grider, etc., R. B. Co., 7 Dow. & L. 328 97 Ark. 588, 135 S. W. 361; Dudley (1849) ; Dow v. Clark, 2 Dowl. 302. v. Dudley, 126 Ark. 182, 189 S. W. See Price v. Duggan, 4 Man. & Gr. 838; Nunn v. Bobertson, 80 Ark. 350, 225. 97 S. W. 293; Blanton v. Davis, 107 70. n.; Stephenson v. Stephenson, Ark. 1, 154 S. W. 947; Wheelock v. 3 Hey. 123; Ferryman v. Burgster, 6 Lake, 117 Mich. 11, 75 N. W. 140, Port. (Ala.), 199; Sproule v. Botts, 5 5 Det. Leg. N. 119; Mitchell v. J. J. Marsh. 162. But see Proudfoot Spaulding, 206 Pa. 220, 55 A. 968; v. Poile, 3 Dow. & L. 524; Macphers. Manning v. Baylinson, 68 Pa. Super. Inf. 336, 357, and cases cited. As to Ct. 512; Co. Litt. 88 6, n. 16, 135 B; 2. practice under New York Code, see Stra. 784; Macphers. Inf. 358; Alder- Linner v. Grouse, 61 Barb. 289. As to man v. Tirrell, 8 Johns. 418; Knapp the infant's own testimony of age in v. Crosby, 1 Mass. 479; Miles v. Boy- such suits, see Hill v. Eldridge, 126 den, 3 Pick. 213; Bedell v. Lewis, 4 Mass. 234. J- ^- Marsh. 562; Starbird v. Moore, 71. Crandall v. Slaid, 11 Met. 288. 21 Vt. 529. 72. Brown v. Hull, 16 Vt. 673. 75. Tubbs v. Tubbs, 250 111. 540, 73. Howett V. Alexander, 1 Dev. 95 N. E. 479 ; Thurston v. Tubbs, 250 § 1058 rNFANCT. 1276 friend." The process is the same against an infant as in ordinary cases; but he needs some one to conduct his defence, and hence every court, wherein an infant is sued, has power to appoint a guardian ad litem for the special purposes of the suit, since other- wise he might be without assistance/' Under the civil law, the HI. 540, 95 N. E. 479; Spahr v. Dick- son, 67 Ind. 394; Copeland v. Yoak- um's Adm'r, 38 Mo. 349. Under a MisBouii statute providing that no judgment shall be impaired by reason of the appearance of any party by attorney, if the judgment -was for him, it was held that an original appearance of minors by at- torney was cured after judgment for them. Chrisman v. Divinia, 141 Mo. 122, 41 S. W. 920; (1909) Hope v. Seaman, 119 N. Y. S. 713 (jndg. mod., Same v. Shevill [1910], 122 N. Y. S. 127, 137 App. Div. 86). But see Gamache v. Provost, 71 Mo. 84. 76. Bush V. Linthicum, 59 Md. 344. 77. Shehane v. Caraway, 154 Ala. 391, 45 So. 469 ; Sibeek v. McTiernan, 94 Ark. 1, 135 8. "W. 136 ; In re Snow- baU's Estate, 156 Gal. 235, 104 P. 446; Bancroft v. Bancroft (Del.), 85 A. 561; Parrish v. Haas (Fla.), 67 8o. 868; Burnett v. Summerlin, 110 Ga. 349, 35 S. E. 655; Douglas v. Johnson, 130 Ga. 472, 60 S. E. 1041; (1911) Thomas v. Thomas, 250 111. 354, 95 N. E. 345 (reversing judg., 155 lU. App. 619); Elynn v. Flynn, 283 III. 206, 119 N. E. 304; White v. Kilmartin, 205 Dl. 525, 68 N. E. 1086 ; Thurston v. Tubbs, 250 111. 540, 95 N. E. 479; Mechling v. Meyers (111.), 120 N. E. 542; Phillips v. PhU- lips, 185 III. 629, 57 N. E. 796; Simp- son V. Simpson, 273 lU. 90, 112 N. E. 276; Gibbs v. Potter, 166 Ind. 471, 77 N. E. 942; Kiee v. Bolton, 126 la. 654, 100 N. W. 634, 102 N. W. 509; Wise v. Schloesser, 111 la. 16, 82 N. W. 439; Earl v. Cotton, 78 Kan. 405, 96 P. 348; Tichenor v. Yankee, 89 Ky. 508, 12 S. W. 947, 11 Ky. Law Rep. 712; Adams v. De Dominguez, 129 Ky. 599, 112 S. W. 663; Whalen v. Hopper's Guardian, 152 Ky. 727, 154 S. W. 40. In the absence of express legislative requirement, it is not necessary to have a guardian ad litem appointed for infants interested in a trust es- tate prior to the determination of an application by the trustees to borrow money on mortgage of the trust prop- erty for the benefit of the estate, as authorized by Bev. Laws 1902, ch. 147, § 18. Warren v. Pazolt, 203 Mass. 328, 89 N. E. 381; Easton v. Eaton, 112 Me. 106, 90 A. 977, 52 L. E. A. (N. S.) 799. The rule has been applied to a bas- tardy proceeding against an infant. Easton v. Eaton, 112 Me. 106, 90 A. 977, 52 L. E. A. (N. S.) 799; Chap- man V. Barnes, 1 Bland. (Md.) 552; Haines v. Oatman, 2 Doug. (Mioh.) 430; Calhoun v. Craeknell (Mich.), 168 N. W. 547. Who shall represent a minor in an action is a matter wholly of procedure, and the laws of the place of action, not the laws of domicile of the minor or his parent, control. Brunette v. Minneapolis, St. P. & S. S. M. By. Co., 118 Minn. 444, 137 N. W. 172; Northern Scruggs (Miss.), 79 So. 327; Carraway v. Lassiter, 139 N. C. 145, 51 S. E. 968; Bunting v. Bunting,. 87 N. J. Eq. 20, 99 A. 840; In re Cooper's Estate, 2 flow. Prac, (N. Y.) 38; Kindgen v. Craig, 147 N. Y. S. 571, 162 App. Div. 508; Pishbein V. Pishbein, 165 N. Y. S. 936; (1909) Hope V. Seaman, 119 N. Y. 8. 713 (judg. mod.. Same v. Shevill [1910], 128 N. y. 8. 127, 137 App. Div. 86) , In re Eonsos, 119 N. Y. 8. 34. Where no such guardian Is ap- pointed, the infant cannot be in con- tempt for failure to obey an order. 1277 ACTIONS. § 1058 court appoints a tutor ad hoc.""^ The court should do this ex mero motu "wherever necessary.'* The appointment should be by formal order.*" The infant cannot nominate an attorney, nor by ac- cepting service make himself a party to the action.*^ It is not sufficient for a proper defence and a binding judgment against the infant that his parents in fact represented him and employed counsel.*" A guardian ad litem is one appointed for the infant to defend in the particular action brought against him, and is there- fore to be distinguished from guardians of the person and estate.** If there be a general chancery, probate, or testamentary guardian Gross V. Gross, 112 N. Y. S. 790, 128 App. Div. 429. A guardian ad litem is an arm of the court extended to protect the minor who is incapacitated to look after his own interests. American Inv. Co. V. Brewer (Okla.), 181 P. 294; Mitchell v. Spaulding, 206 Pa. 220, 55 A. 968; Chapman v. Turber- Tille, 4 Hen. & M. (Va.) 482; Turner T. Barraud, 102 Va. 324, 46 S. E. 318; Sears v. Duling, 77 Vt. 496, 61 A. 518; Buike v. Northern Pae. Ky. Co., 86 Wash. 37, 149 P. 335; Stewart v. Parr, 74 W. Va. 327, 82 S. E. 259; Alexander v. Davis, 42 W. Va. 465, 26 S. E. 291. The infant and not the guardian is the defendant. Stewart v. Parr, 74 W. Va. 327, 82 S. E. 259. The rule stated in the text has been applied even where the infant had a general guardian who was a party to the action. Ponti v. Hoffman, 87 Wash. 137, 151 P. 249; (1908) In re McNaughton's Will, 118 N. W. 997; Frame v. Plumb, Id. (affd. reh., 138 Wis. 179, 120 N. W. 288; Grauman, Marx & Cline Co. v. Krienitz, 142 Wis. 556, 126 N. W. 50; Hubbard v. Chicago, etc., E. Co., 104 Wis. 160, 80 N. W. 454, 76 Am. St. R. 855; Bac. Abr., Guardian, B. 4 78. Gates v. Bank of Patterson, 116 La. 539, 40 So. 891; In re Interstate Land Co., 118 La. 587, 43 So. 173; Interstate Land Co. v. Doyle, Id.; Gilbert v. Mazeratt, 121 La. 35, 46 S. 47; In re Bank of Patterson, Id. An infant wife, being emancipated from the disability of infancy by mar- riage, does not need a tutor to de- fend a proceeding for annulment of the marriage where the ground of dis- solution is relative and not absolute. Delpit V. Young, 51 La. Ann. 923, 25 So. 547. 79. Mason v. Truitt, 257 111. 18, 100 N. E. 202; Sheahan v. Wayne Circuit Judge, 42 Mich. 69, 3 N. W. 259; Jones v. Hudson (Neb.), 141 N. W. 141, 44 L. E. A. (N. S.) 1182, 93 Neb. 561; Bunting v. Bunting, 87 N. J. Eq. 20, 99 A. 840. The duty extends to cases where a guardian ad litem is appointed, but fails to perform his duty. Boiling V. Campbell, 36 Okla. 671, 128 P. 1091; Same v. Gibson, Id. 1093. 80. Where a guardian ad litem had been formally appointed for certain infant contestants of an allowance to trustees, the action of the court in recognizing him as guardian ad litem for other contestants was held a suffi- cient appointment for that matter. Johnston v. Moeller (Conn.), 107 A. 566. The absence of an order is not fatal, where the fact is otherwise shown by the record. Crane v. Stafford, 217 111. 21, 75 N. E. 424; Alexander v. Davis, 42 W. Va. 465, 26 S. E. 291. 81. Finley v. Eobertson, 17 8. C. 435; McClosky v. Sweeney, 66 Cal. 53. 82. Johnson v. Waterhouse, 152 Mass. 585. 83. Larkin v. Mann, 2 Paige, 27; § 1058 INFANCY. 1278 already appointed, it is his place, generally speaking, to defend the infant from all suits, so long as his authority over the infant's property continues and his interest is not adverse in the suit; this being, however, a matter usually regulated in this country by statute.^* This guardian ought to be a person -with no interests to regard except those of the infant defendant f^ he should have no interest adverse to the party he appears for. What has been observed of the appointment 0/ prochein ami may be said, in general, of that of the guardian ad litem. The two correspond, and the principles of law applicable to the one are in general to be applied to the other.'* In a criminal case no guardian ad litem is appointed. But in a civil case proceed- ings against an infant are liable to be reversed and set aside for irregularity, where no guardian ad litem has been appointed for him, unless, perhaps, his regular guardian having no adverse in- terest has appeared in his defence; and process must, besides, have been first regularly served upon the infant; though in this latter respect the rule of the several States is not uniform.*' Ir- Eoberts v. Stanton, Z Miinf. 129; infant), is indispensable to Ms ap- Bac. Abr., Guardian, supra, cases pearance in New York practice. In- cited by Bouvier. 84. See Hughes v. Seller, 34 Ind. 337 ; Bmerio v. Alvarado, 64 Cal. 529 ; Manx V. Eowlands, 59 Wis. 110. See McMakin v. Stratton, 83 Ky. 226. Under various practice codes, infants should be specially defended by a guardian ad litem, and not by the gen- eral guardian. Bearinger v. Pelton, 78 Mid. 109; Vaughan v. Liewellyn, 94 N.- C. 473. 85. Hence the plaintiff's husband liould not be appointed. Bicknell v. Eicknell, 72 N. C. 127. 86. See Macphers. Inf. 358. 87. See Abdil v. Abdil, 26 Ind. 287; Jarman v. Lucas, 15 C. B. (N. S.) 474; Frierson v. Travis, 39 Ala. 150; Larkins v. Bullard, 88 N. C. 35. In some States it is required by statute that process shall be served upon the inxant defendant personally, also upon his father, mother, or guardian. In- gersoll V. Ingersoll, 42 Miss, 155; Irwin V. Irwin, 57 Ala. 614; Helms V. Chadbourne, 45 "Wis. 60. Service on the guardian ad litem (as well as the gersoU V. Mangam, 84 N. T. 622. Sea also Johnston v. S. F. Sav. Union, 63 Cal. 554; Gibbons v. McDermott, 19 Fla. 852; Brown v. Downing, 137 Pa. St. 569. Only personal service gives jurisdiction of a suit against an in- fant; and acceptance of service is no equivalent. Genobles v. West, 23 S. C. 154, 187; Young v. Young, 91 N. C. 359. A judgment rendered against a minor without the appointment of a. guardian ad litem is not void, but rather voidable. Walkenhorst v. Lewis, 24 Kan. 420; Charley v. Kelley, 120 Mo. 135; Eisenmenger v. Murphy, 42 Minn. 84; Clark v. Hillis, 134 Ind. 421. Some local statutes provide for the infant's modification of a judgment against him within a year after arriving at age. Eiehards V. Richards, 10 Bush, 617. But the judgment is prima facie correct, and errors must be prejudicial to the in- fant's interest in order to be thus availed of. Richards v. Richards, 10 Bush, 617. An infant may appeal from a judgment against him, or have 1279 ACTIONS. § 1058 regularities of procedure or delay in. the appointraent are often cured by tlie judgment; and even though the judgment he voidable, lapse of time and laches on the part of an infant after reaching majority may leave him altogether without an opportunity to set the judgment aside, espeoially if no prejudice has resulted, as in the usual case of his voidable transactions.** Some courts hold that the appointment of a guardian ad litem for an infant defend- ant is a jurisdictional fact, the want of which will render the judgment void and open to collateral attack,*® but the weight of authority favors the view that the omission is mere reversible error, not rendering the judgment void.°° In this view of the is reversed for error, at any time dur- Churchman's Ex'x, 111 Ky. 51, 63 S. ing minority without waiting for his majority. Moss v. Hall, 79 Ky. 40. Judgments at law are voidable, not void. § 1015 ; England v. Garner, 90 N. C. 197. Even where it does not appear that a guardian ad litem ap- peared. Emerie v. Alvarado, 64 Cal. 529. Some courts pronounce judg- ments void, under local practice, where clearly prejudicial to the infant, if the formalities of service and defence by guardian are omitted. See Brown v. Downing, 137 Pa. St. 569. But the mere omission to appoint bsfore bringing suit is not a jurisdictional defect, but an irregularity merely. Eima v, E. I. Works, 120 N. T. 433. The court's jurisdiction to appoint is not impaired by the guardian's er- roneous acts after appointment. Ma- loney v. Dewey, 127 111. 395. And see Batchelder v. Baker, 79 Cal. 266. The guardian may appeal on the in- fant's behalf. Thomas v. Levering, 73 Md. 451. Statutes sometimes provide that proceedings against non-resident de- fendants (infants included) may be by publication. Bryan v. Kennett, 113 U. S. 179. 88. See Townsend v. Cox, 45 Mo. 401; Barnard v. Heydriek, 49 Barb. 62 ; McMurray v. MeMurray, 60 Barb. 117; Wickersham v. Timmons, 49 la. 267; Maples v. Maples, 3 Houst. 458. 89. Burnett v. Summerlin, 110 6a. 349, 35 S. E. 655; Hulsewede v. W. 1, 23 Ky. Law Eep. 487; M. M. Sanders & Son v. Schilling, 123 La. 1009, 49 So. 689; Prince v. Clark, 81 Mich. 167, 45 N. "W. 663; Wells v. Wells, 144 Mo. 198, 45 S. W. 1095; Weaver v. Glenn, 104 Va. 443, 51 S. E 835; Hortou v. Barto, 57 Wash. 477, 107 P. 191; Hays v. Camden's Heirs, 38 W. Va. 109, 18 S. E. 461; O'Dell V. Rogers, 44 Wis. 136; Hub- bard V. Chicago & N. W. Ey. Co., 104 Wis. 160, 80 N. W. 454, 76 Am. St. E. 855. 90. Conway v. Clark, 177 Ala. 99, 58 So. 441; Edwards v. Edwards, 142 Ala. 267, 39 So. 82; Dudley v. Dud- ley, 126 Ark. 182, 189 8. W. 838; Foley V. California Horseshoe Co., 115 Cal. 184, 47 P. 42, 56 Am. St. E. 87; Blake v. Douglass, 27 Ind. 416 ; Cook V. Edson Keith & Co., 5 Ind. T. 595, 82 S. W. 918; Nels v. Eider (la.), 171 N. W. 150; Eeints v. Engle, 130 la. 726, 107 N. W. 947; Fudge v. Fudge, 23 Kan. 416; Holloway v. Mcintosh, 7 Kan. App. 34, 51 P. 963 ; Carney v. Yoeum's Heirs, 176 Ky. 173, 195 S. W. 482; Eeynolds v. Steel, 170 Ky. 163, 185 S. W. 820; Harrod v. Har- rod, 167 Ky. 308, 180 S. W. 797; Schimpf V. Eohnert, 129 Mich. 103, 88 N. W. 384, 8 Det. Leg. N. 886. The guardian may be appointed during the trial. Muenkel v. Muenkel (Minn.), 173 N. W. 184; Eubanks v. McLeod, 105 Miss. 826, 63 So. 226; Eeineman v. Larkin, 222 Mo. 156, 121 § 1058 INFANCY. 1280 matter the want of an appointment of a guardian ad litem is not jurisdictional/' so tiat the judgment will not be open to collateral attack,*^ but it seems agreed that it is reasonable error, if season- ably objected to** and that the trial court may set it aside on motion.'* The writ and declaration in actions at law against infants are to be made out as in ordinary cases. In English practice, where the defandant neglects to appear, or appears otherwise than by guardian, the plaintiff may apply for and obtain a summons, call- ing on him to appear by guardian within a given time; otherwise the plaintiff may be at liberty to proceed as in other cases, having S. W. 307; In re Cooper's Estate, 2 How, Prae. (N. Y.) 38; In re Jones' Estate, 105 N. T. S. 932, 54 Mise. 202; In re Weed's Estate, 177 N. T. S 93; Winterroth v. Cox, 75 Misc. 467, 133 N. T. S, 445; Anderson v. Anderson, 150 N. T. S. 359, 164 App. Div. 812; Eox v. Eee, 49 N. T. S. 292, 24 App. Div. 314; Manning v. Baylinson, 68 Pa. Super. Ct. 512; Murchison Nat, Bank v. Eeynolds (8. C), 96 S. E. 521; Wallis v. Stuart, 92 Tex. 568, 50 S. "W, 567; Catron v. Bostic (Va.), 96 S. E. 845; Kongs- bach V. Casey, 66 Wash. 643, 120 P. 108; Alexander v. Davis, 42 W. Va. 465, 26 S. E. 291; Linn v. Collins, 87 S. E. 934; Curtis v. Deepwater Ry. Co., 68 W. Va. 762, 70 S. E. 776; Grauman v. Marx, etc., Co., 142 Wis. 556, 126 N. W. 50. 91. Conway v. Clark, 177 Ala. 99, 58 S. 441; Trask v. Boise King Pla- cers Co., 26 Ida. 290, 142 P. 1073; Eubanks v. McLeod, 105 Miss. 826, 63 S. 226; Winterroth v. Cox, 75 Mise. 467, 133 N. T. S. 445; In re Jones' Estate, 54 Misc. 202, 105 N. T. S. 932. 92. Conway v. Clark, 177 Ala. 99, 58 8. 441 ; Harrod v. Harrod, 167 Ky. 308, 180 S. W. 797; Eubanks v. Mc- Leod, 105 Miss. 826, 63 8. 226 ; Eeine- man v. Larkin, 222 Mo. 156, 121 S. W. 307; Grauman, etc., Co. v. Krie- nitz, 142 Wis. 556, 126 N. W. 50. 93. Edwards v. Edwards, 142 Ala. 267, 39 S. 82; Conway v. Clark, 177 Ala. 99, 58 So. 441; Cowling v. Hill, 69 Ark. 350, 63 8. W. 800, 86 Am. St. E. 200; Linebaugh v. Atwater, 173 111. 613, 50 N, E. 1004; White v. Kilmartin, 205 111. 525, 68 N. E. 1086; Wise v. Schlosser, 111 la. 16, 82 N. W. 439; Daggy v. Miller (la.), 162 N. W. 854; State v. Stark (la., 1911), 129 N. W. 331; Eaton v. Eaton, 112 Me. 106, 90 A. 977, 52 L. E. A.) N S.) 799; Conto v. Silvia, 170 Mass. 152, 49 N. E. 86; Winteroth v. Cox, 133 N. T. S. 445, 75 Misc. 467; Cowen V. Ganung, 110 N. T. S. 470, 58 Misc. 141; Wallis v. Stewart, 92 Tex. 568, 50 S. W. 567; Curtis v. Deepwater Ey. Co., 68 W. Va. 762, 70 8. E. 776; Grauman, etc., Co. v. Krienitz, 142 Wis. 556, 126 N. W. 50; Shelby v. St. James' Orphan Asylum, 66 Neb. 40, 92 N. W, 155. 94. Maryland Casualty Co. v. Lan- ham, 124 Ga. 859, 53 8. E. 395; In re Finck's Estate, 171 N. T. S. 988; Byrnes v. Byrnes, 96 N. Y. S. 306, 109 App. Div. 535. In New York by statute the time for making such a motion is limited to two years. Byrnes v. Byrnes, lOff App. Div. 535, 96 N. Y. S. 306; Cur- tis V. Deepwater Ey. Co., 68 W. Va. 762, 70 8. E. 776; Grauman, etc., Co. V. Krienitz, 142 Wis. 556, 128 N. W. 50. 1281 ACTIONS. § 1059 liad a nominal guardian assigned to the infant. "^ A like rule prevails in New York and other States.®* Courts will go so far for protecting an infant as to see that process is properly served, a guardian ad litem appointed for him, and the formal answer filed. ®^ An infant defendant is liable to costs in the same manner as any other defendant, notwithstanding he has a guardian.** If an infant comes of age pending the suit, he can assert hia rights at once for himself ; and unless he does so he cannot gener- ally complain of the acts of his guardian ad litem. Where a person is of age and sui juris, it is error to appoint a guardian ad litem.'* § 1059. Chancery Proceedings by or against Infants; Corre- sponding Rule. The same leading principles noticeable in suits at law are to be recognized in equity proceedings by or against infants; and the doctrines of next friend and guardian ad litem receive ample dis- cussion in the chancery courts.^ Among the miscellaneous matters of chancery practice relating to infants may be mentioned proceedings in partition, orders for maintenance and education, the management of trust funds ' by 95. The defence of statute of frauds must be regarded as having been pleaded with reference to infant de- fendants as to whom it might be available, though not in fact pleaded. Willis V. Zorger, 258 111. 574, 101 N. E. 963. See Macphers. Inf. 359. 96. Van Deusen v. Erower, 6 Cow. 50; Judson v. Storer, 2 South. 544; Clarke v. Gilmanton, 12 N. H. 515. 97. Alexander v. Frary, 9 Ind. 481. 98. Anderson v. Warde, Dyer, 104; Gardiner v. Holt, Stra. 1217. Mae- pherson says that the guardian of an infant defendant 13 subject to the same liability for costs as the pro- ehein ami, or the guardian of an in- fant plaintiff. Macphers. Inf. 361. No authority is given for this state- ment, and it seems that the guardian of an infant defendant is not liable. See Ferryman v. Burgster, 6 Port. (Ala.) 199. Such guardian should at all events be reimbursed all reason- able charges incurred in the case. 81 Smith V. Smith, 69 111. 308. A guar- dian ad litem cannot absolutely bind those whom he represents by a con- tract with an attorney in the suit fix- ing his compensation. Cole v. Su- perior Court, 63 Cal. 86. See § 344. 99. Mitchell v. Berry, 1 Met. (Ky.) 602. And see Marshall v. Wing, 50 Me. 62 ; Stupp v. Holmes, 48 Mo. 89 ; Bursen v. Goodspeed, 60 111. 277 ; Pat- ton V. Purthmier, 16 Kan. 29. 1. See 1 Daniell, Ch. PL, 3d Am. ed., 65 et seq.; 76. 150 et seq., where the English and American authorities are very fully cited. As to an allow- ance to a guardian ad! litem for fees and services, see Mason v. Pomeroy, 151 Mass. 164; Wilbur v. Wilbur, 138 El. 446. 2. Infant owners of land, whether by legal or equitable title, may sue in chancery to charge as trustee one who has received the rents or profits of their land. Johns v. Williams, 66 Miss. 350. § 1059 INFAKCT. 1282 guardians and other trustees, and the award of custody. These subjects have already been incidentally considered in the course of this treatise. And we need only add that, in the appointment of guardians ad litem, courts of chancery will exercise a liberal dis- cretion; that in all proceedings of this character the appoint- ment of a guardian ad litem to appear in behalf of infants in- terested in the proceedings is regarded as proper and even neces- sary, when they have no general guardian or the general guardian has an adverse interest; that personal service upon the infants, besides, is usually requisite ; and that a decree rendered without observance of such formalities may be reserved for error.* It is ':he rule in many States, as it was the old practice in chancery, to "How an infant his day, after he attains majority, to set aside a decree against him; thus, in effect, rendering such decrees in chancery voidable rather than binding, so far as he is concerned, and treating him more than ever upon the footing of a privileged person ;* for it is not too much to say that at all times and under all circumstances infants are especial favorites of our law. eery should not be given up without securing the legal costs, &e., of the guardian ad litem or his solicitor. Sheahan v. Circuit Judge, 43 Mich. 69. As to infant married woman's guardian ad litem or next friend,, see Ex parte Post, 47 Ind. 142. Gene- ral guardians do not represent their wards in foreclosure proceedings, but a guardian ad litem is proper. Shea- han V. Circuit .Tudge, 48 Mich. 69, Where the infant's probate guardian. has an adverse interest in the suit, there should be a guardian ad litem, appointed. Stinson v. Pickering, 70 Me. 273. Though service on the in- fant is the regular rule {supra, % 448), it is held in some States that a regular guardian may defend, and may waive the service of process, even, where the minor's realty is involved. Scott V. Porter, 2 Lea, 224; Walker V. Veno, 6 Rich. 459. As to infant'* acceptance of service, see Wheeler v, Ahenbeak, 54 Tex. 535. A guardian ad litem, cannot admit away the substantial rights of in- fants; his passiveness will not be construed into a waiver; nor will a A guardian with hostile interest should not represent the ward in such cases. 3. 1 Daniell, 65, 150 ; Ehett v. Mar- tin, 43 Ala. 86; Girty v. Logan, 6 Bush, 8; Rhoada v. Ehoads, 43 111. asg'; Swain v. Fidelity Ins. Co., 54 Pa. St. 455; Ivey v. Ingram, 4 Cold. 139; 39 Ark. 61, 235. Personal ser- vice on the infant dispensed with in Greorgia. Harvey v. Cubbedge, 75 Ga. 792. 4. Simpson v. Alexander, 6 Cold. 619; Kuohenbeiser v. Beckert, 41 111. 173; 1 Daniell, Ch. PI., 3d Am. ed., 71, 167. Rule now abrogated in some States. Phillips v. Dusenberry, 15 N. T. Supr. 348. It does not apply to an infant trustee. Walsh v. Walsh, 116 Mass. 377. And see O'Eorke v. Bolinbroke, 2 App. Cas. 814. Concerning the appointment, the court's discretion is favored as in other interlocutory proceedings. Walker v. Hull, 35 Mich. 488. Giving security for costs will not obviate the necessity of suing in the name of next friend or guardian. Sutton v. Nichols, 20 Kan. 43. A fund in chan- 1283 ACTIONS. § 1059 An infant defendant is as mucli bound by a decree in equity, rendered upon due jurisdiction and fairly, — as a person of full age; therefore, if there be an absolute decree made against a defendant who is under age, and who has regularly appeared by a guardian ad litem and has been served with process, he will not be permitted to dispute it unless upon the same grounds as an adult might have disputed it; such as fraud, collusion, or fundamental error/ As to the binding force of judgment at law, the rule does not seem to be equally strong.® But the rule may be stated that in the main an infant plaintiff suing by guardian or next friend is as much bound by a judgment or decree as a per- son of full age.'' But where a defendant in a suit is a minor at the time of service of summons, and the record shows that he be- comes of full age before the judgment is taken, a court is dis- bill in equity be taken as confessed against an infant. Lane v. Hard- wieke, 9 Beav. 148; Tucker v. Bean, 65 Me. 352; Mills \. Dennis, 3 Johns. Ch. 367; Turner v. Jenkins, 79 111. 228; Jones v. Jones, 56 Ala. 612; Ashford v. Fatten, 70 Ala. 479; Daily's Adm'r v. Eeid, 74 Ala. 415. Of course no general guardian has such a right. Bearinger v. Pelton, 78 Mich. 109. An infant may by original biU im- peach a decree in favor of his guar- dian and prejudicial to his own in- terests; nor, on general chancery rules, need he wait until attaining full age. Sledge v. Boone, 57 Miss. 222. A decree not appealed from is held binding upon an infant in the absence of fraud, whoever may have been his guardian ad litem, process having been duly served on the infant. McCrosky v. Parks, 13 S. C. 90 ; Cuy- ler V. Wayne, 64 Ga. 78. What has been decreed will be presumed rightly done. Whether guardian ad litem or proohein ami can submit an infant's interests to arbitration, see Tucker v. Dabbs, 12 Heisk. 18. It seems he cannot, except upon the court's sanc- tion. § 1055; Savage v. McCorkle, 17 Ore. 42. 5. 1 Dan. Ch. Practice, 205; Rivers V. Durr, 46 Ala. 418 ; Ealston v. Lahee, 8 Clarke (la.), 17; Watkins v. Law- ton, 69 6a. 671 ; In re Livingston, 34 N. y. 555; supra, § 1054. And see, as to allowing the infant his day, § 542. But see Tibbs v. Allen, 27 111. 119; Driver v. Driver, 6 Ind. 286; Ashton V. Ashton, 35 Md. 496. As to the method of impeaching a decree for reasons stated in text, see Haines v. Hewitt, 129 111. 347 ; Stunz T. Stunz, 131 111. 309; Kingsbury V. Buckner, 134 U. S. 650. The infant need not proceed by bill of review, but may, while a minor, file his original bill to impeach the de- cree. It. He has longer time than an adult by reason of disability to in- stitute suits for relief. Hurt v. Long, 90 Tenn. 445. But the decree cannot be set aside as against an intervening bona fide purchaser without notice. Allison V. Drake, 145 111. 500. An infant, duly represented by guardian, is concluded by a probate decree. Simmons v. Goodell, 63 N. H. 458. And see Sites v. Eldredge, 45 N. J. Eq. 632. But not if the probate court undertook to sell or partition land without jurisdiction. Cole V. Eailway Co., 81 Mich. 167. 6. Supra, §§ 1015, 1055, 1058. 7. Woodall V. Moore, 55 Ark. 22. § 1059 INFANCY. 1284 posed to uphold the judgment unless it can be impeached for fraud.* In some States, doubtless both judgments at law and decrees of equity now stand on the same conclusive footing, and the infant has not his opportunity to show cause as to either class on reaching majority, except on the grounds above stated.' Where- ever the substantial interests of infants are involved, nothing can be established by admissions or stipulations; but proof is neces- sary.^" But while a next friend or guardian ad litem cannot thus surrender substantial rights of the infant, he may bind the latter by arrangements which simply facilitate the trial and the pur- suit of justice." All this may be likewise said of counsel; for the authority of counsel cannot be greater than that of the next friend or guardian employing him.^^ 8. Stupp V. Holmes, 48 Mo. 89. And Bryant v. Livermore, 20 Minn. 313, see Blake v. Douglass, 27 Ind. 416; 342, and cases cited. Hicks V. Beam, 112 N. C. 642. 10. Claxton v. Claxton, 56 Mich. 9. Phillips V. Dusenberry, 15 N. Y. 557; Grotty v. Eagle, 35 W. Va. 143; Supr. 348; Bickel v. Erskine, 43 la. Jeffera v. Jeffers, 139 111. 368; Hale 213. As to either guardian ad litem v. Hale, 146 HI. 227. or prochevn arm, he is not a party to 11. Kingsbury v. Buckner, 134 U. an action in such sense that his re- 8. 650. lationship to the judge disqualifies 12. Eidam v. Finuegan, 48 Minn, the latter from sitting in the case. 53; Grotty v. Eagle's Adm'r, 35 W. Sinclair v. Sinclair, 13 M. & W. 646; Va. 143. PART VI. SEPAEATION AND DIVOECR CHAPTER I. SEPAEATION AND DIVOECE. Bbction 1060. Deed of Separation ; General Doctrine. 1061. English Rule. 1062. American Rule. 1063. What Covenants Are Upheld. 1064. Abandonment; Rights of Deserted Wife. 1065. Divorce Legislation in General. 1066. Legislation upon Divorce; Divorce from Bed and Board; Divorce from Bond of Matrimony, &e. 1067. Causes of Divorce: Adultery; Cruelty; Desertion; Miscella- neous Causes. 1068. Defences. 106?. Effect of Absolute Divorce upon Property Rights. 1070. Effect of Partial Divorce upon Property Rights. 1071. Validity of Foreign Divorces. § 1060. Deed of Separation; General Doctrine. Separation is that anomalous condition of a married pair which involves a cessation of domestic intercourse, while the impedi- ments of marriage continue. Either from choice or necessity, as the case may be, they throw aside the strong safeguards of a home and mutual companionship ; they forfeit their most solemn obliga- tions to protect, love, and cherish through life ; they continue united in form and divided in fact. The spirit of the contract, all that dignifies and ennobles it, is gone; but the letter remains. Both parties submit, in some degree, at least, to the degradation of pub- lie scandal ; they are cast loose upon the world without the right to love and be loved again; the thought of kindling fresh flames at the altar of domestic happiness is criminal; and deprived of the comfort and support of one another, finding in society at best but timid sympathy and consolation, the moral character must be strong, and doubly so must be that of the wife, that each may buffet with success the tide which bears onward to destruction. iSuch a state of things no public policy can safely favor; but the law sometimes permits it, if for no other reason than that an adequate remedy is wanting to check or to prevent the evil ; and 1285 § 1061 SEPAEATIOH^ AND DITOECE. 1286 hence it may be thouglit more expedient for the courts to enforce such mutual contracts of the unhappy pair as mitigate their troubles, than to dabble in a domestic quarrel and try to compel unwilling companionships.^* This we conceive to be the rightful position of the English and American equity courts whenever they see fit to enforce separation agreements. Some, to be sure, are disposed to carry the argument further. Thus, recent English writers of much repute refer to the fact that divorces from bed and board are often granted in that country, and hence conclude that it is reasonable for the married parties themselves to compromise litigation, save court fees, and avoid public notoriety, and therefore to agree to live apart, just as though the court had entered a decree for that purpose.^* But this argument proves too much; for if marriage and divorce are matters for private compromise, like ordinary contracts, why should not the discontented pair, upon just cause, agree to unloose the yoke altogether? Why should they not sometimes obtain divorce from the bonds of matrimony by collusion and default, and thus take the readiest means of avoiding scandalous and expensive suits ? One shrinks from such conclusions. In fact, divorce laws do not belong to the parties themselves, but to the public ; govern- ment guards the sanctity of marriage, just as it demands the duty of alliegiance ; only that perhaps its policy cannot be enforced in the one case as well as the other. It is because marriage is not on the footing of ordinary contracts, that husband and wife can- not, on principle, compromise, arbitrate, or modify their relation- ship at pleasure. Furthermore, the above argument would seem to suggest that where a complete divorce, instead of divorce from bed and board, is attainable, deeds of separatoin would not hold good; nor, again, where parties separate for causes which do not even justify divorce from bed and board; neither of which posi- tions is sustained by the actual decisions. § 1061. English Rule. Lord Eldon wais of the opinion that a settlement by way of separate maintenance, on a voluntary separation of husband and wife, was against the policy of the law and void. The ground of his opinion was that such settlements, creating a separate mainte- 13. Bergen v. Van Liew, 36 N. J. See also Jacob, n. to Eoper, Hus & Eq. 637. Vife, 277; Peachey, Mar. Settl. 647. 14. Macq. Hus. & Wife, 324 et seq. 1287 SEPABATION" AND DIVOECE. § 1061 nance by voluntary agreement between husband and wife, were in their consequences destructive to the indissoluble nature and the sanctity of the marriage contract; and he considered the question to be the gravest and most momentous to the public interest that could fall under discussion in a court of justice." But in England final and complete dissolution of marriage was, until quite recently, attainable only by act of Parliament. And this method of procediire was found so difficult, expensive, and uncertain, that parties who could not live peaceably together were led to consider some lesser means of mitigating their mis^ fortune. To be sure the ecclesiastical courts awarded sentences of divorce from bed and board; but these merely discharged the parties from the duty of cohabitation, permitting them to come together afterwards if they should so choose; and therefore, as a writer observes, these sentences " did not often, it must be owned, repay the pains bestowed in obtaining them.'"* The Eng- lish ecclesiastical courts steadily r-.-fused, moreover, to recognize separation deeds.^^ Such a policy seems, however, to have turned husband and wife to their own devices for effecting the same result, with less delay and annoyance, and in order to adjust more com- pletely those property arrangements which never could be for- gotten in their misery. Deeds of settlement, trusts, and the in- tervention of the equity courts readily furnished a plan of oper- ations; and the ubiquitous conveyancer appeared once more upon the stage to open the way, through subtle refinements, to freedom for discontented couples, and emolument for himself. After a prolonged struggle, and in spite of public policy, it is therefore fully established at length in England, as a doctrine of equity, that deeds of separation may and must, if properly framed, be carried into execution by the courts.^' They may be en- forced in the common-law courts indirectly through the medium of covenants which are entered into between the husband and trus- tees ; and in equity specific performance will be decreed where the 15. St. John v. St. John, 11 Ves. Settl. 620; H. v. W., 3 Kay & Johns. 530. See Mortimer v. Mortimer, 2 386, 387. Hag. Consist. Eep. 318; Legard v. 17. 1 Bish. Mar & Div., 5th ed., § Johnson, 3 Ves. 352; Mereein t. 634; Mortimer v. Mortimer, 3 Hag. People, 25 Wend. 77. Con. 310 ; Smith v. Smith, 4 Hag. Ee. 16. Maeq. Hus. & Wife, 326. See 609. Hope V. Hope, 3 Jur. (N. S.) 456; 18. Wilson v. Wilson, 1 Ho. Lords 8. e. 36 L. J. Eq. 425; Peaehey, Mar. Cas. 538; 5 Ho. Lords Gas. 59; § 1062 SEPAKATION AND DIVOKCE. 1288 stipulations are not contrary to law nor in contravention of public policy.^* An agreement between husband and wife to live apart is, perhaps, void as against public policy ; but the husband's cove- nant with a third party may be valid and binding, although it originates in this unauthorized state of separation and relates directly to it."" It may seem strange that such an auxi^ry agreement should be enforced, while the principal agreement is held contrary to the spirit and policy of the law. Lord Eldon, who sitrongly opposed the whole doctrine on principle, said that if the question were res integra, untouched by dictum or decision, he would not have permitted such a covenant to be the foundation of a suit in equity.*^ Sir William Grant appears to have been the first to call attention to the inconsistency of the courts in this respect; and his remark has come down through the later judges.^^ liOrd Eosslyn, however, hit upon the explanation that an agreement for a separate pro- vision between the husband and wife alone is void, merely from the general incapacity of the wife to contract;^* an explanatiou which, we submit, is quite unsatisfactory. The true reason for the anomalous distinction appears to be simply this : that contracts for separation are in general void as against public policy, but that the courts saw fit to let in exceptions so far as to enforce fair cove- nants.^* § 1062. American Rule. Deeds of separation were never very common in the United States. And there are at least three very good reasons why they should be at this day less encouraged than in England. The first is that our legislation strongly favors the separate control of mar- ried women as to their own acquisitions, without the intervention of trustees and formal deeds of settlement, thus dispensing with the necessity of intricate property arrangements. The second is that equity, ecclesiasitical, and common-law functions are usually Peaehey, Mar. Settl. 620, and cases 22. See Jones v. Waite, 5 Bing. 361 ; cited; Maeq. Hus. & Wife, 329. Prampton v. Frampton, 4 Beav. 293. 19. Vansittart v. Vansittart, 2 De 23. Legard v. Johnson, 3 Vea. Jr. Gex & Jones, 249. 352. See 2 Bright, Hus. & Wife, 306, 20. Worrall v. Jacob, 3 Mer. 255 ; n. by Jacob. Peaehey, Mar. Settl. 621; Sanders v. 24. TTnder English legislation, not Eodney, 16 Beav. 211; Warrender v. only are covenants in a separation Warrender, 2 CI. & Pin. 488. deed enforced, but the court has povfer 21. Westmeath v. Westmeath, Jac. to vary them after a dissolution of 126; 2 Kent, Com. 176. the marriage. Clifford v. Clifford, 9 1289 SKPAKATION AND DIVOBCE. § 1062 blended in the same courts of final appeal, so that a State is at liberty to adopt the precedents of the ecclesiastical rather than the modem equity tribunals of England for its guidance; while an American court, on the other hand, could not admit clearly the right of parties to declare terms of private separation, without bringing confusion and uncertainty upon its own divorce and matrimonial jurisdiction. The third is that sentences of divorce have been procured in most of the United States with great ease, moderate expense, and little publicity. Early in this century, Chancellor Kent summed up authorities which showed that a private separation was an illegal contract, in these emphatic words : " Nothing can be clearer or more sound than this conjugal dootrine.'^^ Contrary to what until quite lately was the rule in England, many of our States have never directly sanctioned separation deeds at all. And a recent North Carolina case distinctly maintains what ought to and may yet become the pronounced American doctrine, — that separation deeds are void as against law and public policy.'" Nevertheless there are individual American cases, and numerous ones, where separation deeds have been recognized so far as to permit, and sometimes to require, parties to perform such marital duties as were incumbent upon them, notwithstanding the fact of separation.''^ And the text-writer must still further concede, how- ever reluctantly, that out of a regard for permitting married parties, who are resolved upon separation without a divorce, to arrange decently for the maintenance of wife and offspring and for a just mutual disposition of property rights, our courts are in the latest cases following the English lead so as to sustain the enforcement of whatever covenants might be pronounced fair in themselves on behalf of parties separated or about to separate. Some of these cases sustain such covenants upon a suggestion that, P. D. 76 ; Pearon \. Aylesford, 12 27. 1 Bishop, Mar. & Div., § 639 et Q. B. D. 53ff. seq.; Sehouler, Hus. & "Wife, § 473 25. 3 Kent, Com. 177 n. Goodrich v. Bryant, 4 Sneed, 325 26. Collins v. Collins, 1 Phill. N. C. McCubin v. Patterson, 16 Md. 179 Eq. 153. An agreement between hus- Griffin v. Banks, 37 N. Y. 621; Joyce band and wife, having for its object a v. McAvoy, 31 Cal. 273; Walker v. dissolution of the marriage, is con- Stringfellow, 30 Tex. 570; Hitner's trary to sound policy, and a note and Appeal, 54 Pa. St. 110 ; Loud v. Loud, mortgage executed in pursuance there- 4 Bush, 453; Dutton v. Button, 30 of is void. Cross v. Cross, 58 N. H. Ind. 452 ; McKee v. Eeynolds, 26 la. 373. 578; Walker v. Beal, 3 ClifE. 155; § 1063 SEPAEATION AND DIVOECE. 1290 separation being inevitable, they are prepared to make the best of it, not conceding the support of contracts calculated to favor a separation wbicb has not yet taken place or been fully decided upon.^* An unsatisfactory distinction truly, nor likely to afford a resting-place ; as though this half countenance were not calculated of itself to favor future separation ; and yet a legal distinction, since it leaves the bickering parties where they have placed them- selves. It seems to stop short of enforcing specific performance of a written agreement for a separation deed, and to refuse direct countenance to a stipulation that husband and wife shall live apart in time to come.^* : § 1063. What Covenants are Upheld. An indenture with the intervention of a trustee or trustees is in ' this country held the safer sort of instrument where separation is contemplated, and such are the deeds usually dravsoi and con- strued by our courts. It is desirable that the husband and trustee mutually covenant together. But so considerably are husband and wife now emancipated from the need of intermediate parties, that a fair transaction of the present nature has been sometimes sustained in certain States, where no trustee at all was inter- posed.^" This cannot be affirmed of all, nor of most of the United States;'^ nor can such a contract ever prevail against the wife's interests where she, in such negotiation and arrangements, does not appear to have acted with perfect freedom and a perfect under- standing of her individual rights.^^ Sometimes an agreement or bond to separate is executed by husband and wife, accompanied by the conveyance of property to a trustee for the use of the wife; Dupre V. Eein, 56 How. (N. T.) Prac. ever, the application accords with the 228; Deming v. William, 26 Conn. text. 226; Chapman v. Gray, 8 Ga. 341. 30. In Randall T. Eandall, 37 Mich. 28. Fox T. Davis, 113 Mass. 255, 563, a deed passed from husband to per Endicott, J., and cases cited; Hut- wife, whose actual consideration was . ton V. Hutton, 3 Barr, 100; Eandall relinquishment of the right to a sup- T. Eandall, 37 Mich. 563, per Cooley, port on her part. And see Common- C. J.; Garver v. Miller, 16 Ohio St. monwealth v. Eichards, 131 Pa. St. 527; Eobertson v. Eobertson, 25 la. 209; Zimmer v. Settle, 124 N. T. 37. 3jO; Button v. Button, 30 Ind. 452; 31. Simpson v. Simpson, 4 Bana, Carpenter v. Osborn, 102 N. T. 552. 140; Carter v. Carter, 14 Sm. & M. 29. See this distinction asserted in 69; Stephenson v. Osborne, 41 Miss, the latest cases. Aspinwall v. Aspin- 119; McKennan v. Phillips, 6 Whart. wall, 49 N. J. Eq. 302; Galusha v. 571. Galusha, 116 N.T. 635. CoJiira, Scott's 32. gwitzer v. Switzer, 26 Gratt. Estate, 147 Pa. St. 102, where, how- 574. 1-91 SEPAEATION ASD DIVOECE. § 1063 wliicli later, however, is the instrument the court construes and upholds.^* Inasmuch, then, as separation deeds are not enforced either in England or the United States, at the present day, without regard to the policy of stipulations or covenants in question, the limit of judicial support may he drawn at the support of pro- visions which, supposing separation inevitahle, carry the fulfil- ment of conjugal duties and rights after a reasonable and becom- ing manner into that relation. For equity can only sanction what is fair and beneficial; and here cognizance is taken, not of the separation, but of circumstances and a settlement attending that state. The covenant or stipulation itself, the whole settlement, must be free from exception and such as equity might, under other instances of its jurisdiction, have sustained.^* Where, there- fore, the provision is for the wife, as in providing suitable main- tenance during the separation, such a covenant or stipulation is to be highly favored.*' Where an equitable and suitable division is made of the property whose benefits have been enjoyed during the coverture, this, too, may well be upheld.*" It is reasonable and binding for the separating wife to release all claims upon the husband's estate as surviving spouse, in consideration of other fair provisions for her benefit and support.*' The spouse who cove- nants to deliver up certain property to the other should make that covenant as advantageous to the latter as was reasonably intended.** It is fair that a husband's covenant or stipulation of proper al- lowance for the wife's support should be accompanied by the trus- tee's covenant or stipulation of indemnity against his wife's debts.** In respect of directly compelling the married parties to live apart under their agreement, separation deeds cannot be pro- 33. Keys v. Keys, 11 Heisk. 425; (especially if she has means of her Dixon T. Dixon, 23 N. J. Eq. 316. own) ; Carpenter v. Osborn, 102 N. T. 34. Switzer v. Switzer, 26 Gratt. 552. 574. 38. Thus it is held that a husband 35. Fox V. Davis, 113 Mass. 355; has no right to retain copies of his Randall v. Eandall, 37 Mich. 562; wife's journals and diaries, which he, Walker v. Walker, 9 Wall. 743; under a separation deed, has cove- Aspinwall v. Aspinwall, 49 N. J. Eq. nanted to deliver up. Hamilton v. 302; Galusha v. Galusha; 116 N. T. Hector, L. E. 13 Eq. 511. And see 635; Eollv. Boll, 51 Minn. 353; Clark McAllister v. McAllister, 10 Heisk. V. Fosdick, 118 N. Y. 7. 345 ; § 160, note. 36. Cooley, C. J., in Eandall v. 89. Dupre v. Eein, 56 How. (N. Y.) Er.ndall, 37 Mich. 563. Prac. 228; Harshberger v. Alger, 31 37. Scott's Estate, 147 Pa. St. 102 Gratt. 52; Eeed v. Beazley, 1 Blackf. § 1063 SEPAKATIOlSr AND DIVOBCE. 1292 nounced good upon any just conception of public policy and the divorce laws ;*" and especially must this rule hold true where the compulsion sought is under circumstances of separation not justify- ing a divorce. No relief will be afforded by equitable interference against the executed provisions.*' > The potential mingling of legal and illegal conditions in these agreements, with the view of entering upon a status which of itself is inconsistent with a due fulfilment of the moral and legal duties of matrimony, occasions judicial confusion, which is more likely to increase than decsrease while separation deeds are judici- ally recognized. But it is recently held in England that if some covenants in such a deed are legal and proper, while others are not. the former are enforceable by themselves.*^ At all events, 97. Such a provision of indemnity, though usual, is not essential. Smith v. Knowles, 2 Grant, 413. 40. Warrender v. Warrender, 2 01. & F. 488, 527, per Lord Brougham; Brown v. Peck, 1 Eden, 140; Mc- Crooklin v. McCrocklin, 2 B. Monr. 370; McKennan v. Phillips, 6 Whart. 571, per Gibson, C. J. Whether articles of separation can debar one from procuring a divorce for cause, see post Vol. II; Moore v. Moore, 13 P. D. IffS. If separation never took place, the deed is void. Hamilton v. Hector, L. E. 13 Eq. 511. 41. Tallinger v. Mandeville, 113 N. T. 427. 42. Hamilton v. Hector, L. E. 13 Eq. 511. There is no implied cov- enant tliat the wife shall remain chaste; such covenants should be stated. Sweet v. Sweet (1894), W. N. 181. And see Chase v. Phillips, 153 Mass. 17, as to husband. While in many parts of the United States is seen an increasing tendency to adopt the English theory concern- ing separation covenants, with, how- ever, more looseness as to the form such transactions shall take, the lat- est English cases quite transcend the distinctions behind which our courts take refuge, and the earlier dicta of their own Eldon and Brougham. Di- vorce being there regarded with less favor than in the United States, not- withstanding the late statutes on the subject, trust deeds, and voluntary separation, are, upon mature experi- ence, treated as, on the whole, the more decent and respectable method for unhappy couples to adopt, ' than that somewhat novel recourse to courts, which brings a scandalous cause into public controversy. See Peachey, Mar. Settl. 647, 648. Eng- lish policy, indeed, in its inception is quite different from American in this regard, a fact which American jurists should bear well in mind. And under legislation of date much later than the divorce acts which were copied from the United States, sepa- ration deeds are plainly legalized. Stats. 36 & 37 Vict., cited in Be Besant, L. E. 11 Ch. D. 508. Thus, the custody of the offspring may now be distinctly provided for, as it would appear, in an English deed of sepa- ration. But at the same time, chan- cery, where the child is made a ward of the court, will protect the child's welfare. Me Besant, L. E. 11 Ch. D. 508; Besant v. Wood, L. E. 12 Ch. D. 605. See, further, post, Vol. II. 1293 SEPAEATION AND DIVOECE. § 1063 reconciliation and a renewal of cohabitation will put an end to all provisions of a separation deed whose scope relates to a state of continuous saparation merely, and the rights and interests of each in the other's property will be resumed by inference as of the usual marital status/* Courts have shown a recent disposition to aid the reconciliation contracts of spouses who have been living apart.** But a postnuptial contract, made in consideration of the settlement of differences which had caused a temporary separation, appears to be founded on a valid consideration, and its transfers will not be disturbed.*" And a decree of divorce without alimony Upon still another point, namely, the restitution of conjugal rights, the English chancery has, of late, de- parted widely from its earlier prece- dents. In Great Britain, where this suit for restitution of conjugal rights has always been permitted, it was formerly ruled in the matrimonial courts, and seemed to be the well- settled doctrine, that a deed of sepa- ration afforded no bar to such a suit whenever either party chose to en- force the remedy; and, this, even though the deed in terms forbade such proceedings. 1 Bishop, Mar. & Div., § 634, and numerous cases cited. This was in accordance with the first idea that separation deeds might indirectly be tolerated for their beneficial cove- nants as concerned parties bent upon separation, but not directly upheld. That rule has changed; for, as the English statute now provides, a deed of separation which contains a cove- nant forbidding the suit for restitu- tion of conjugal rights to be brought, will bar such a suit. Marshall v. Marshall, 39 L. T. 640. And to one separated spouse chan- cery will now grant an injunction, by virtue of such a covenant, to restrain the other spouse from suing for res- (rtitution of conjugal rights. Besant V. Wood, L. K. 12 Ch. D. 605, and cases cited. Under the English di- vorce act of 20 & 21 Viet., ch. 85, suits for restitution of conjugal rights are still permitted. 1 Bishop, Mar. & Div., § 771. Compromise, too, of the suit for restitution of conjugal rights is permitted in England. Stanes v. Stanes, L. E. 3 P. D. 42. There is this fundamental distinction between the English suit for divorce or ju- dicial separation, and the suit for restitution of conjugal rights: that in the former instance the chief object is to free the petitioner in whole or in part from the marriage obligations; but in the latter, to control the other spouse so as to compel once more an unwilling cohabitation. See language of court in Pirebrace v. Firebrace, 39 L. T. 94. Eestitution of conjugal rights is a remedy unknown in the United States, where courts may finally part, but cannot forcibly re- unite, the separated spouses. See post, Vol. II; 1 Bishop, Mar. & Div., 5th ed., § 771. And see as to specific performance of an agreement to separ- ate, Gibbs V. Harding, L. E. 5 Ch. 336. 43. Nieol v. Nicol, 31 Ch. D. 524; Knapp V. Knapp, 9'5 Mich. 474. Even where the matrimonial resumption is not on the full footing of eohab- itancy, a substantial resumption is enough. Zimmer v. Settle, 124 N. Y. 37. 44. Barbour v. Barbour, 49 N. J. Eq. 429. But cf. Miller v. Miller, 78 la. 177. 45. Phillips V. CuUiton, 153 Mass. 17; Burkholder's Appeal, 105 Pa. St. 31. See as to the ofEer by one party to return, Parber v. Farber, 64 la. 362. A written agreement of spouses, where there had been no separation, § lOGi SEPAKATIOIT AND DIVOBCE. 1294: may rely upon the continuance of provisions for just support under a previous separation deed.*® § 1064. Abandonment; Rights of Deserted Wife. Abandonment by either spouse consists in leaving the other wil- fully and with the intention of causing their perpetual separation. As to the right of the wife, when abandoned by her husband, to earn, contract, sue, and be sued, to much the same effect as a feme sole, while such abandonment actually laists, the current of American authority, legislative and judicial alike, decidedly favors so just a doctrine.*' Modern Married Women's Acts often permit the wife to do quite or nearly as much when not abandoned at all. And in England, recent statutes secure to a married woman privi- leges to a similar extent under like circumstances of abandon- ment.*' The test is, observes a recent American case, whether the husband may be deemed to have renounced his marital rights and relations.** The great contrariety of current legislation is a great obstruc- tion, however, to formulating a decided rule of English and American jurisprudence on this point. We have seen that, under the old common-law doctrine of coverture, the wife could not sue or be sued, or otherwise act as a single woman, unless the husband was under the disability of a civil death, which meant to do certain things in consideration in the Union, enlarging the rights of ignoring their former quarrels was of married women in such cases held unenforceable in Miller v. Mil- Peck v. Marling, 23 W. Va. 708 ler, 78 la. 177. Phelps v. "Walther, 78 Mo. 320 46. Galusha v. Galusha, 116 N. T. Peru v. Poland, 78 Me. 215; Johnson 635. A separation deed affords no v. Barnes, 69 la. 641. A wife thus bar to a legal divorce for causes sub- abandoned is favored in applying the sequently arising; nor for damages crops of the husband's land for the against the offending spouse, where family support. Loy v. Loy, 128 Ind. the separation agreement was because ' 150. of the intimacy of the wife with a 48. See Stat. 20 & 21 Vict., eh. third person, with whom she com- 8'5; Midland E. E. Co. v. Pye, 10 mitted adultery afterwards. Izard v. C. B. (N. S.) 179. Chancery has Izard, 14 P. D. 45. long moulded its proceedings to se- 47. See Shaw, C. J., in Abbott v. cure a like privilege. In re Lancaster, Bayley, 6 Pick. 89; Benadum v. Pratt, 23 E. L. & Eq. 127; Johnson v. Kirk- 1 Ohio St. 403; Spier's Appeal, 2 wood, 4 Dru. & "War. 379. A right Casey, 233; Mead v. Hughes, 15 Ala. of action is conferred, too, under 33 141; Ehea v. Ehenner, 1 Pet. 105; & 34 Vict., ch. 93. Moore v. Eobin- Moore v. Stevenson, 27 Conn. 14; son, 27 W. E. 312. see ■posi. Vol. II. And see the 49. Ayer v. Warren, 47 Me. 817. various statutes in almost every State 1295 SEPARATION AND DIVOECE. § 1065 originally banisluneiit and abjuration of the realm. The wife's rights being enlarged by statute under such circumstances, we have therefore to inquire Into the scope of any statute In point. Some of our local acts are construed as affording a substitute for the common-rule law, and not as merely cumulative, and hence require a literal interpretation. In general, such legislation is to he considered as grafted upon the common law of coverture which prevailed when this country was settled, and at the Revolution. It contemplates abandonment, and not what might be designed as a merely temporary withdrawal from cohabitation ; and It regards the husband In general as completely out of the jurisdiction of the State, never having entered It, or else having forsaken It.°° Abandonment Is now universally a cause for divorce."^ § 1065. Divorce Legislation in General. Divorce laws have constantly given rise to most Interesting and earnest discussions; and men differ very wI3ely In their conclu- sions, while all admit the subject to be of the most vital importance to the peace of families and the welfare of nations. Some favor a rigid divorce system as most conducive to the moral health of the people; others urge a lax system on the same grounds. On two points only do English and American jurists seem to agree: first, that the government has the right to dissolve a marriage during the lifetime of both parties, provided the reaisons are weighty ; second, that, unless those reasons are weighty, husband and wife should be divorced only by the hand of death.^^ The ancient nations, all recognizing the necessity of some di- vorce legislation, differed In their method of treatment. Among the Greeks, despite their Intellectual refienment, the marriage Institution was degraded, even In the palmiest days of Alhens. The husband could send away his wife, and the wife could leave her husband; the procedure In either case being quite simple.^' In Eome more of the moral and religious element prevailed ; and 50. See, at length, post, Vol. 11. Md. 481. Various modern codes now And as to separate maintenance to a give the right still more broadly, ■wife, see further, post, Vol. II. It is 51. Drummond v. Drummond, 171 humane and just to construe the com- N. Y. S. 477. men law as permitting the wife, when 52. Upon divorce causes and di- permanently abandoned by her hus- vorce procedure, see post, Vol. II ; also band, to sue in her own name for per- Bishop, Mar. & Div., 2 vols., passim. Bonal injuries. Wolf v. Banereis, 73 53. Woolsey, Divorce Legislation, 31. § 1065 SEPAEATION AND DIVOECE. 1296 SO strictly was marriage respected in the days of the EepuUic, that no divorce is supposed to have occurred for more than five hundred years from the foundation of the city; and the earliest recorded instance may possibly have been under the rightful head of void and voidable marriage/* But ancient Eome was built on family discipline, rather than domestic love; the husband exer- cised full svray, and the stately and severe Eoman matron disap- peared entirely in the later dissolute and corrupt years of the Roman Empire, and before an empire succeeded it/^ The ideal of marriage among the Hebrews was high : that husband and wife should cleave together and be one flesh ; nevertheless, the usage of this nation, founded upon the Mosaic code, seems to have pei^ mitted the husband to dismisis his wife at pleasure. The Christian influence and teaching has been to condemn all arbitraa-y exercise of power in this respect, to place man and woman on more nearly an equal footing, to discourage all lax and temporary unions, and to warn the legislator that those whom God hath joined man may not with inpunity put asunder."' The influence of Christianity has been felt in modem Europe, spreading to England, whence, too, it was brought to the wilds of America ; the Christian rule ever shaping tihe policy of govern- ment. But this rule has received different methods of interpreta- tion The Church of Rome treats marriage as a sacrament, and indissoluble without a special dispensation, even for adultery. Protestants are divided: all regarding adultery as a sufiicient source of divorce; many considering desertion equally so, others cruelty ; while a strong current of local authority in lihis country tends to multiply the legal occasions for divorce even down to such pretext as incompatibility of temper. .So loose, indeed, and so confusing, is our State marriage and divorce legislation becom- ing, that it might be well to ask whether the cause of morality would not be promoted, if, by constitutional amendment, the whole subject were placed in the control of the general govern- ment; so that, at least, one uniform system could be applied, and the exjperiments of well-meaning refoirmers be subject to an uner- ring and crucial test."^ 54. Spnrius Carvilius Euga, B. C. which Horace divines, in Carm. Lib. 231, put away his wife for barren- iii. 6. ness. 1 Bishop, Mar. & Div., § 23; 56. Post, Vol. II. Woolsey, Div. 41. 57. There is a growing and dan- 55. See the cause of Eome's decay, gerous laxity in the United States as 1297 SEPARATION AND DIVOECE. § 1066 There has been a movement in recent yeans supported hj our Bar Associations towards a uniform divorce lavs^. The uniform n^otiable instruments act and the uniform bill of sale law have been of wide benefit and a uniform divorce act would undoubted!/ have most beneficial results. § 1066. Legislation upon Divorce; Divorce from Bed and Board; Divorce from Bond of Matrimony, &c. Private agreement for divorce is repungant to the good sense of England and the United States; government must interpose to pronounce the sentence ; and collusion between the parties to dis- solve their own relation is so little favored — however much the courts may have reluctantly yielded io uphold deeds of mere sepa- ration °* — that the divorce tribunal shields the public conscience, and requires that even in a default the complainant's case be made ont properly." The English Divorce Act (Stat. 20 & 21, Vict, ch., ^Sj § '^) places the whole subject since 1858, 'more than formerly, upon the recognized American plane, by investing judicial tri- bunals with power competent to pronounce sentence in each case conformably to general directions of the statute. Divorce may, therefore, be granted from bed and board (a mensa et tJioro) or from the bonds of matrimony (a vinculo) by the prevailing Eng- lish and American practice. The former, which is a sort of judicial separation, applies to the less heinous ofFences, wherever a legislature recognizes any distinction; while the latter, which alone is complete, is the remedy for the greater offences, or, ac- cording to the most conservative policy, for adultery only. The one is partial divorce or a legalized separation ; the other is final and full divorce.'" Divorces nisi are sometimes decreed, being in the nature of a partial and not final divorce, so as to afford delay for remedying error or allowing a last chance for reconciliation. The old ecclesiastical remedy for restitution of conjugal rights, still available in England, had never a foothold in the United States, to the permanency of the marriage 58. Stewart v. Stewart (Ida.), 180 relation. One difSculty is our uni- P. 165. versal tendency to greater social free- 59. Post, Vol. II; 2 Bishop, §§ 235, dom, freedom as between the sexes, 236; Milster v. Milster (Mo. App.), woman herself pressing for it; another 209 S. W. 620. the existence of some forty indepen- 60. Post, Vol. II. Local codes should dent jurisdictions, which enable our be carefully studied on this point, as citizens ' traveling from one State to they differ in policy. Many causes for another to find facilities for divorce annulling a marriage are in these daya and remarriage always at hand. § 1067 SEPAEATIOK Al^D DIVOECE. 1298 tte prejudice being too strong against it; specific performance of marriage is consequently unenforceable even by way of penalty."^ And it is generally held in tbis country tbat tbe old Englisb eccle^ sias'tical law was never adopted bere as a part of tbe common law *^ altbougb its forms and practices are often used wben neces- sary by our courts.*' § 1067. Causes of Divorce: Adultery; Cruelty; Desertion; Mis- cellaneous Causes. We sball only briefly advert to tbe cbief cause of divorce recog- nized by our modern legislation. Adultery is tbe cause of divorce most universally commended: a plain offence, and one wbicb in- volves conjugal unfaitbfulness at tbe most vital part of tbe marital relation. By adultery we mean tbe voluntary sexual intercourse of eitber married party witb some one, married or single, of tbe opposite sex, otber tban tbe offender's ovim spouse. Adultery justifies divorce from bond of matrimony under most codes ; and wbile tbe Englisb statute bas been somewbat partial to a bus- band wbo sins witbout otberwise offending bis wife or witbout atrocious accompaniments of tbe crime, American policy treats botb sexes alike, and visits tbe guilt of busband or wife alike.'* As for cruelty, legal cruelty is more readily expounded by negative tban affirmative language. Tbis cause of divorce is designed regu- larly for tbe vindication of tbe weaker party, usually (but not necessarily) a wife, wbose wrong from ber busband's cruelty may be found greater, in tbe average of cases, tban from bis silent infidelities. In general, it sbould be stated tbat wberever tbe conduct of one spouse to tbe otber is sucb tbat tbe latter cannot continue cobabitation witbout reasonable ground for fearing sucb bodily barm from tbe former as seriously to obstruct tbe exercise of marital duties, or render tbe conjugal state unendurable, tbere legal cruelty exists, and cause for divorce ; and from tbis point of view violence actually committed and violence tbreatened, if \n\h specified in local codes as causes of G4. Mordaunt v. Monerieffe, L. B. divorce. 2 H. L. Sc. 374; Pattison v. Pattison 61. Post, Vol. n. (Md.), 103 A. 977; Slattery v. Slat- G2. Hodges v. Hodges (N. Mex.), tery, 87 N. J. Eq. 673, 102 A. 873; 159 P. 1007; Erkenbrach t. Erken- Luderitz v. Luderitz, 88 N. J. Eq. brach, 96 N. T. 456. 103, 102 A. 661; Steele v. Steele, 170 G3. Le Barron v. Le Barron, 35 Vt. K. T. S. 454; Evenden v. Evenden, 365 (medical examination to deter- 170 N. T. S. 458; Smith v. Smith, mine impotency) ; Bobbins v. Bob- 181 Ey. 55,203 S. W. 884; Freeman bins, 140 Mass. 52S (connivance). v. Freeman (Ark.), 206 S. W. 439; 1299 sepakatiojst and divorce. § 1067 sinister intention, are treated as alike reprehensible,*' but it is commonly held that legal cruelty cannot be shown by anything less than physical violence,"" although many States hold the view that physical violence is not necessary to show cruelty,"' and a false charge of infidelity made in bad faith may be held to be cruelty."* Desertion, or the wilful abandonment of one spouse by the other, was not a recognized cause of divorce under England's ecclesiasti- cal law, as promulgated at the settlement of this country; but the English divorce statute made it, when, without cause and ex- tending over the space of two years, a third cause for judicial separation; while meantime, in the United States, where remedies for restitution of conjugal rights were discarded, desertion for a specified period has long been a permitted cause for divorce ; per- haps for a limited divorce in the first instance, and yet, quite commonly, as in the cas« of adultery or cruelty, for a divorce 1S.03S V. Boss (N. J.), 104 A. 199, 105 A. 894; Bowers v. Bowers (N. J.), 104 A. 831. G5. England v. England (Ga.), 96 S. E. 174; Smith v. Smith (Tex. Civ. App.), 200 S. W. 1129; TJnzieker v. TJnzieker, 101 Neb. 837, 166 N. W. 241. See Thomas v. Thomas, 87 N. J. Eq. 668, 103 A. 675, 101 A. 1055; Evans v. Evans, 1 Hag. Con. 35; 1 Bishop, Mar. & Div., §§ 715-717; Latham v. Latham, 30 Gratt. 307; 25 N. J. Eq. 526 ; Beckley v. Beekley, 23 Ore. 226. Legislative enactments use various expressions, some of which stop short of the extremity of cruelty; e. g., "excesses," "outrages," "intolera- ble indignities," etc. And see such phrases as "cruel and inhuman," "cruelty of treatment," "extreme and repeated cruelty," etc. In some States a husband who un- justly charges his wife with unchas- tity is guilty of such cruelty as en- titles her to a divorce. Bahn v. Bahn, 62 Tex. 518 ; Avery v. Avery, 33 Kan. 1. And as to the wife 's unjust charge, see Carpenter v. Carpenter, 30 Kan. 712; Kelly v. Kelly, 18 Nev. 49. Especially if these accusations are publicly and harshly made and re- peated. 67 Tex. 198. Chastisement of the wife is cruelty, and certainly when repeated; but not such acts as laying his hand on her shoulder. Hawkins v. Hawkins, 65 Md. 104; Donald v. Donald, 21 Ela. 571; supra, § 44. As to masturbation, see W v. W , 141 Mass. 495. For cruelty by neglecting the wife wantonly when she was critically ill, see Hoyt v. Hoyt, 56 Mich. 50. 86. Cowden v. Cowden, 5 Alaska, 311; Armstrong v. Armstrong, 229 Mass. 592, 118 N. E. 916, L. R. A. 1918D, 426; Moir v. Moir (la.), 165 N. W. 1001; TJmbach v. TJmbach, 171 N. T. S. 138, 183 App. Div. 495; Claunch v. Claunch (Tex. Civ, App.), 203 S. W. 930 (drunkenness alone is not cruelty). See Germaine v. Ger- maine (Mich.), 171 N. W. 377. 67. Lefevre v. Lefevre (Tex. Civ. App.), 205 S. W. 842; Carson v. Car- son (la.), 171 N. W. 584; Johnson V. Johnson (Ky.), 209 S. W. 385; Robertson v. Robertson (Okla.), 176 P. 387; McTTabb v. McNabb (Tex. Civ. App.), 207 S. W. 129; Koehler V. Koehler (Ark.), 209 S. W. 283. 68. Johnson v. Johnson (Ky.), 209 S. W. 385; Milster v. Milster (Mo. § 1067 SEPABATION AND DIVOECE. 1300 ultimately if not immediately from the bonds of matrimony." Three things are usually imported in this legal desertion : an actual cessation of cohabitation for the period specified ; the wilful intent of the absent spouse to desert ; desertion by that spouse against the will of the other ; '° but a wife may be justified in leaving tibe husband where he has been guilty of matrimonial misconduct.^' As to the various other causes of divorce which are specified from time to time by local statute, with much variety of verbal expression, these are for the most part modifications of the three chief ones we have just enumerated. For with few exceptions, all causes of divorce have one or more of the three leading elements present : there is adultery or cruelty or desertion ; or, to speak less literally, sexual infidelity, maltreatment, or the wrongful cessation of marital intercourse. Thus, among offences akin to adultery which are specified, are sodomy and bestial crimes against nature, concubinage, and habitual loose intercourse witlh persons of the opposite sex.''^ Offering indignities to the person of a spouse," conviction of felonious crime '* (which, besides separation, visits disgrace upon the innocent), gross and confirmed habits of intox- App.), 209 8. W. 630; Pearson v. A. 20; Gordon v. Gordon, 88 N. J. Pearson, 173 N. T. 8. 563; Olsen v. Eq. 436, 103 A. 31 (confinement in Olsen, 5 Alaska, 459; Wesley v. Wes- insane asylum a defence to charge ley, 181 Ky. 135, 204 S. W. 165. of desertion only if involuntary) ; 69. Post, Vol. II; Papa v. Pape, Streicher v. Streicher (Mich.), 168 N. 20 Q. B. D. 75; Act. 20 & 21 Viet., W. 409; Gollehon v. GoUehon (Va.), ch. 85, § 16; 1 Bishop, Mar. & Div., 96 8. E. 769; Axton v. Axton (Ky.) §§ 771-775; Schanek v. Schanek, 33 206 8. W. 480; Nunn v. Nunn (Ore.), N. J. Eq. 363. Note the varying 178 P. 986; "WiUielm v. Wilhelm language of local codes on this sub- (Ore), 177 P. 57. ject: "wilful desertion," "abandon- 71. Pattison v. Pattison (Md.), 103 ment," "wilful absence," etc. The A. 977; McCauley v. McCauley, 88 time specified varies from one to five N. J. Eq. 392, 103 A. 20. years; three years being, perhaps, the 72. Stevens v. Stevens, 8 E. I. 557; fair average. See Harding v. Hard- Hansley v. Hansley, 10 Ire. 506. ing, 11 P. D. Ill, as to neglect to 73. Simpkins v. Simpkins (Ark.), comply with a decree of restitution. 207 8. W. 28 ; Cunningham v. Cun- 70. Sergent v. Sergent, 33 N. J. Eq. ningham (Mo. App.), 202 8. W. 430 204; Latham v. Latham, 31 Gratt. (forcing wife to take drugs to cause 307; Morrison v. Morrison, 20 Cal. miscarriage); Cunningham v. Cnn- 431. There is no cause of divorce ningham (Mo. App.), 206 S. W. 240, in which the collusion of a discon- 202 8. W. 420. tented pair is more likely to prevail, 74, Klasner v. Klasner (N. M.), unless the court is quite circumspect, 170 P. 745 (conviction followed by than this alleged desertion. McCauley pardon as cause for divorce). V. McCauley, 88 N. J. Eq. 392, 103 1301 SEPAEATION AND DIVOECB. § 1068 ication or habitual intemperance/* gross neglect of duty, abusive treatment, — all these are of the nature of cruelty.'" Joining the Shakers (among whom the relation of husband and wife is held unlawful), absenting one's self unreasonably long, — causes like these are in the nature of desertion; and insanity, withholding sexual intercourse, and various other causes not clearly recognized as justifying divorce, are of a like nature.''' But other miscella- neous causes of divorce may be found specified in American codes: some mingling fraud and other nullifying causes as grounds for a divorce ; some again permitting divorce to be granted at judicial discretion for any other cause or upon general considerations of the peace and morality of society, — a dangerous latitude should any court tfhoose to abuse its functions.''* § 1068. Defences. There are four common defences to libels for divorce. First, provocation, that the defendant by his conduct so provoked the plaintiff as to be the real cause of the treatment complained of ; ''* second, collusion, a defence often resorted to in cases of adultery, where the libellant is privy to or aids and abets the libellee in the 75. Koehler v. Koehler (Ark.), 209 of assailing the libellant 's proof, is S. W. 383 (use of drugs producing recrimination (since the party alleg- Btupor is not drunkenness). ing a wrong must come into court 76. Pending an appeal from a con- with clean hands), condonation (or viction of a felony, the conviction conditional forgiveness), connivance eannot be urged as ground for di- (or aiding and abetting the offence, voTce. Rivers v. Eivers, 60 la. 378. usually from corrupt and sinister But actual imprisonment for the stat- motives, so as to make out a ute period is a cause of divorce, not- case for divorce). Cross-bills are withstanding a bill of exceptions be often, filed, each party seeking di- filed. Cone v. Cone, 58 N. H. 152. vorce for the other's fault. The hus- 77. Post, Vol. II. In some instances band 's condonation of his wife 's it might be hard to say whether adultery does not debar her from di- cruelty or desertion is the stronger vorce from him if he afterwards com- element. nxits adultery. Gumming v. Gumming, 78. 1 Bishop, Mar. & Div., § 827; 135 Mass. 386. For the Scotch law 31 Me. 590. It matters not that from of condonation, see Collins v. Collins, some perverted religious belief and 9 App. Gas. 205. conscientiously, and not with crim- As to connivance at a wife's adul- inal intent, one spouse transgresses; tery which debarred a divorce, see the usual divorce remedy lies open Morrison v. Morrison, 136 Mass. 310. to the other spouse nevertheless. 74 79. Thomas v. Thomas, 87 N. J. Tex. 414. Eq. 668, 101 A. 1055, 103 A. 675; For divorce precedure, see 2 Smith v. Smith (Tex. Civ. App.), 200 Bishop, Mar. & Div., passim. Among S. W. 1129. See Closz v. Closz (la.), the permitted defences, besides that 169 N. W. 183. § 1069 SEPAKATIO]Sr AMD DIVOECE. 1302 adultery ; *" third, codonation, where tte libellant forgives or con- dones the acts complained of by continuing to cohabit with the libellee after knowledge of the acts complained of; °^ fourth, recrimination, that the libellant has himself been guilty of crimes against the marriage relation similar or equal in degree to those complained of.*^ Condonation is, however, supposed to be con- ditional on the future good behavior of the erring spouse, so where the conduct complained of is repeated after forgiveness this reyives the original offence.*^ § 1069. Effect of Absolute Divorce upon Property Rights. The effect of divorce from bonds of matrimony upon the prop- erty rights of married parties is substantially that of death, or rather annihilation. We speak here of hona fide and valid and complete decree of dissolution.^* And, save so far as a statute may divide the property or restore to each what he or she had before, or a decree for alimony may fasten directly upon the property in question, the guilt or innocence of either spouse does not affect the case.*^ This is a topic upon which the common law, from the infrequency of divorce, furnishes no light, except by analogies. The settled usage of Parliament in granting divorce has been to introduce property clauses to the above effect into the sentence of dissolution regulating the rights and liabilities of the respective parties,'^ but even in these cases the rights of divorced 80. Shilman v. SMlman, 174 N. Y. Hosier v. Hosier (Ore.), 174 P. 732; S. 385, 175 N. T. S. 681; Edleson v. Wehrenbrecht v. Wehrenbrecht (Ho. Edleson, 179 Ky. 300, 200 S. W. 625. App.), 207 S. W. 290; HeNabb v. See HcCauley v. HcCauley, 88 N. J. HeNabb (Tex. Civ. App.), 207 S. W. Eq. 392, 103 A. 20. 129; Nolker v. Nolker (Mo. App.), 81. Parker v. Parker (Tex. Civ. 208 S. W. 128; Tanton v. Tanton App.), 204 S. W. 493; Merriam v. (Tex. Civ. App.), 209 S. W. 429^; Merriam, 207 111. App. 474; Bush v. Wolf v. Wolf (N. D.), 169 N. W. Bush (Ark.), 205 8. W. 895; Sayles 577. V. Sayles (E. I.), 103 A. 225; Wes- 83. Deusenberry v. Deusenberry ley V. Wesley, 181 Ky. 135, 204 S. W. (W. Va.), 95 S. E. 665; Neeley v. 165; Satterwhite v. SatterwMte Neeley (Cal.), 176 P. 163; Abbott v. (La.), ?0 So. 547; Millet v. Millet Abbott (Hich.), 168 N. W. 950; (La.), 81 So. 400; Mahurin v. Ha- Parker v. Parker (Tex. Civ. App.), hurin (Tex. Civ. App.), 208 S. W. 204 S. W. 493; James v. James 558; Davis v. Davis (Mo. App.), 206 (Neb.), 171 N. W. 904; Quient v. S. W. 580. Quient (Wash.), 177 P. 779. 82. Smith v. Smith, 181 Ky. 55 84. See invalid decree disregarded 203 S. W. 884; Wesley v. Wesley, in Cheely v. Clayton, 110 TJ. S. 701. 181 Ky. 135, 204 S. W. 165; Walker 85. See Harvard College v. Head, V. Walker (Vt.), 104 A. 828; McCarty 111 Mass. 209. V. MoCarty (la.), 169 N. W. 135; 86. Macq. Hns. & Wife, 210, 214. 1303 aEPAaATIOW AND DIVOECE. § 1069 pai-ties as to tenancy by the curtesy, chattels real, and rents of the wife's lands, are still unsettled; and in general, the consequence hy act of Parliament " does not very clearly appear." *^ But under the new English Divorce Act,"' it is held that wtere the wife, at the date of the decree of divorce a vinculo, was entitled to a rever- sionary interest in a sum of stock which was not settled before her marriage, and had been the subject of a postnuptial settlement, and after the decree the fund fell into possession, her divorced husband had no right to claim it.*' The English doctrine, as thus indicated, is that the same consequences as to property must follow the decree of dissolution by the divorce court as if the marriage contract had been annihilated and the marriage tie severed on that date. Such, too, has been the spirit of later decisions.*" In settlements and trusts involving intricate family arrange- ments, however, the English rule is not yet uniform and positive.'^ In this country the effect of divorce a vinculo is frequently regulated by statute. And in general, and independently of statute, all transfers of property actually executed before divorce, whether in law or in fact, remain unaffected by the decree. For 87. 2 Bright, Hus. & Wife, 366. 88. Stats. 20 & 21 Vict., eh. 85; 21 & 22 Vict, ch. 108; 23 & 24 Vict., ch. 144. 89. Says Vice-Chancellor Wood: "Here the contract has been deter- mined by a mode unknown to the old law, namely, by a decree of dis- solution; and as the husband was un- able, during the existence of the eon- tract, to reduce this chattel into pos- session, I must hold that the prop- erty remained the property of the wife." Wilkinson v. Gibson, L. E. 4 Eq. 162. 90. Pratt v. Jenner, L. E. 1 Ch. 493; Fussell v. Dowding, L. E. 14 Eq. 421; Swift v. Wenman, L. E. 10 Eq. 15; Prole v. Soady, L. E. 3 Ch. 220. And one who obtained a sen- tence of dissolution of marriage was held, moreover, not liable to be joined in an action for tort committed by his wife during the coverture. Capel V. Powell, 17 C. B. (N. S.) 743. 91. The most recent cases show a decided indisposition to forfeit a hus- band's rights to a trust fund, where, at all events, the effect of annihila- tion would be to disturb the remote right of some innocent party, or with- out consideration as to which spouse offended. Fitzgerald v. Chapman, L, E. 1 Ch. D. 563. Jessel, M. E., here discredits Pussell v. Dowding, and other cases cited supra. And see Burton v. Sturgeon, L. E. 2 Ch. D. 318; Codrington v. Codrington, L. E. 7 H. L. 854. And in certain causes the Divorce Act confers the power to modify the marriage settlement upon final sentence. 20 & 21 Vict., ch. 85, § 45. Where application is made for that purpose, the judicial object of thus proceeding is, apparently, to prevent the innocent party from being injuriously affected in property by the decree. Maudslay v. Maudslay, L. E. 2 P. D. 256. On the decree for dissolution of marriage becoming ab- solute, it takes effect from the date of the decree nisi. Prole v. Soady, L. E. 3 Ch. 220. § 1069 SEPABATION AND DIVOKCE. 1304 instance, personal choses of the wife already reduced to possession by the husband remain his.'* A voluntary settlement which is completely executed will not be arbitrarily revoked by a court.** But as to rights dependent on marriage and not actually and fully vested, a full divorce, or the legal annihilation, ends them. Thia applies to curtesy, dower, the right to reduce choses prospectively into possession, rights of administration, and property rights under the statutes of distribution.^* These doctrines are set forth in local codes, which frequently save certain rights, such as the wife's dower where divorce is occasioned by her husband's misconduct. And a provision under an antenuptial contract, which is plainly intended as a isubstitute or equivalent for dower in case the wife survives the husband, is barred by their divorce.'" As to torts a similar rule would probably apply.°° Separate 92. Lawson v. Shotwell, 37 Miss. statute, in 44 Ohio St. 645. 630. 93. Thurston, Be, 154 Mass. 59'6. 94. Dobson v. Butler, 17 Mo. 87; 4 Kent, Com. 53; n., 54; Given T. Marr, 27 Me. 112 ; Wheeler v. Hotch- kiss, 10 Conn. 335; Calane v. Calane, 24 N. J. Eq. 440 ; Hunt v, Thompson, 61 Mo. 148 ; Schouler, Hus. & Wife, § 559 ; Eice v. Lumley, 10 Ohio St. 596. But see Wait v. Wait, 4 Comst. 95; Ensign, Be, 103 N. T. 284. As to property of the husband in the di- vorced wife's possession, see Lane v. Lane, 76 Me. 531. As to community property, see Moore v. Moore, 59 Tex. 54; Brown v. Brown, 60 Cal. 579. Divorce severs the estate of husband and wife by the entirety, 92 Tenn. 695, § 193. 95. Jordan v. Clark, 81 HI. 465. Here divorce was granted to A. for the fault or misconduct of A. 's wife, but the principle of the case was that the wife eould only be entitled to re- ceive the provision as A. 's vridow. A divorce a vinculo obtained by the wife, though for the husband's mis- conduct, bars dower. Calame v. Calame, 24 N. J. Eq. 440. And see Gleason v. Emerson, 51 N. H. 405; Hunt V. Thompson, 61 Mo. 148. Cf. New York statute construed in Schif- f er V. Pruden, 64 N. T. 47 ; also Ohio Some State codes provide how the home- stead shall be disposed of. Stahl v. Stahl, 114 111. 375. 96. Chase v. Chase, 6 Gray, 157; 2 3 Bishop, Mar. & Div., § 724; Schou- ler, Hus. & Wife, § 55?. And see Capel V. Powell, 17 C. B. (N. 8.) 743. If the husband receives any prop- erty of the wife after divorce, she may recover it in a suit for money had and received. 2 Bishop, Mar. ft Div. § 714; Legg v. Legg, 8 Mass. 99. See Kintzinger's Estate, 2 Ashm. 455. How far, on the divorce of the hus- band, his assignee may claim against the wife does clearly appear; but where the divorce was obtained through his fault, the wife 's equitable provision, it seems, will be favorably regarded as against him. 3 Bishop, § 715, and conflicting cases compared; Woods V. Simmons, 20 Mo. 363; 8 Kent, Com. 136 et seq. Divorce takes away the husband's right of admin- istration upon the estate of his di- vorced wife. 2 Bishop, Mar. & Div., 5th ed., § 735; Altemug's Case, 1 Ashm. 49. See, further, as to the effect of divorce, Schouler, Hus. & Wife, § 561, and cases cited. For implied revocation of a will by di- vorce, see Lansing v. Haynes, 95 Mich. 16. 1305 SEPAEATIOIf AND DIVOBCE. § 1070 property of a wife settled, or otherwise vested in her, is not to be disturbed by a divorce,'^ nor property vested already in the hus- band by gift from his wife ;°* and where the husband and wife own property jointly a divorce restores to each the whole of the land formerly held separately." § 1070. Effect of Partial Divorce upon Property Rights. Divorce from bed and board, or nisi, produces, however, no such sweeping results; the cardinal doctrine here being that the mar- riage remains in full force, although the parties are allowed to live separate. Here we must consult the phraseology of local etatutes with especial care, in order to determine the respective rights and duties of the divorced parties. Thus the consequence of judicial separation, under the present divorce acts of England, is to give to the wife, so long as separation lasts, all property of every description wtich she may acquire, or which may come to or devolve upon her, including estates in remainder or reversion ; and such property may be disposed of by her in all respects as if she were a feme sole; and if she dies intestate it goes as if her husband had then been dead.^ In this country, independently of statutory aid, the property righta of the parties divorced from bed and board remain in gen- eral unchanged. For this divorce is only a legal separation, term- 97. Barclay v. Waring, 58 Ga. 86; available at the time the right ac- Harvard College v. Head, 111 Mass. crued and during marriage. As to a 209; Sehouler, Hus. & Wife, § 560; note from the divorced husband, see Jackson v. Jackson, 91 V. S. 122; Chapin v. Chapin, 135 Mass. 393. A Stultz V. Stultz, 107 Ind. 400. debt of the wife to her husband legal- It is held, and upon that principle ly extinguished by the marriage is of sound policy which maintains in- not revived as a cause of action on violate the sanctity of the marriage their subsequent divorce. Farley v. nnion, while further discouraging Farley, 91 Ky. 497. But senible the stale and doubtful litigation to which wife may sue the husband in eon- their final and angry rupture might tract upon mutual transactions of incite one of the married parties, legal force during the marriage state, that a divorced wife cannot main- Morrison v. Brown, 84 Me. 82. tain an action against her divorced 98. Tyson v. Tyson, 54 Md. 35. husband upon an implied contract 99. Bowling v. Little (Ky.), 206 arising during coverture (Pittman v. S. W. 1. See Stifel's Union Brewing Pittman, 4 Ore. 298) ; nor for an al- Co. v. Saxy, 273 Mo. 15ff, 201 S. W. leged assault committed upon her 67, L. E. A. 1919C, 1009 (divorce dis- while they were husband and wife. solves tenancy by entirety). Abbott V. Abbott, 67 Me. 304; 1. Stats. 20 & 21 "Vict., ch. 85, § Morrison v. Brown, 84 Me. 82. 25 ; 21 & 22 Vict., ch. 108, § 8. See Such remedies, so far as available Eomilly, M. E. in Se Insole, L. E. 1 at all, ought to be sufficiently Eq. 470. § 1070 SEPAEATION AND DIVOKCE. 1306 inable at the will of the parties; the marriage continuing in regard to everything not necessarily withdrawn from its operation by the divorce,^ Thus, the husband still inherits from the wife, and the wife from the husband; the one takes his curtesy, the other her dower ; and even the right of reducing the wife's choses in action into possession still remains to the guilty husband.* But chancery, by virtue of its jurisdiction in awarding the wife her equity to a settlement, may, and doubtless will, keep the property from his grasp, and do to both what justice demands.* On prin- ciple, the right to administer would seem not to be forfeited by one's divorce from bed and board." 2. Dean v. Richmond, 5 Pick. 461; 2 Bishop, Mar. & Div., 5th ed., § 726 et seq.; Caatlebury v. Maynard, 95 N. C. 281. 3. Clark v. Clark, 6 Watts & S. 85 ; Kriger v. Day, 2 Pick. 316; Smodt V. Leeatt, 1 Stew. 590 ; Ames v. Chew, 5 Met. 320. 4. Holmes v. Holmes, 4 Barb. 295; post. Vol. II. 5. But see limitatioiis suggested in jjosi, Vol. II. The recent English statutes give the wife, upon sentence of judicial separation, the capacity to sue and be sued on somewhat the same foot- ing as a feme sole. The rule in the United States is not uniform ; but the tendency is clearly in the same direc- tion. See 2 Bishop, Mar. & Div., 5th ed., § 737, and cases cited; Lefevres V. Murdock, Wright, 205; Clark v. Clark, 6 Watts & S. 85. And see, further, as to statutory provisions, including a division of property, post, Vol. II; 2 Bishop, Mar. & Div., §§ 509-519. Concerning the conflict of laws, with respect of (1) marriage, (2) marital rights and duties, and (3) divorce, see Schouler, Hus. & Wife, §§ 566-575. As affecting the rights and duties of the marriage relation, Story, in his Conflict of Laws, after an extended discussion of the great diversity of laws existing in different countries, as to the incidents of mar- riage, lays down the following pri- mary rules, which are of general ap- plication. (1) Where parties are mar- ried in a foreign country, and there is an express contract respecting their rights and property, present and fu- ture, it will be held equally valid everywhere, unless, under the circum- stances, it stands prohibited by the laws of the country where it is sought to be enforced. It will act directly on movable property everywhere. But as to immovable property in a for- eign territory, it will, at most, confer only a right of action, to be enforced according to the jurisdiction rei sitcp. (2) Where such an express contract applies in terms or intent only to present property, and there is a change of domicile, the law of the actual domicile will govern the rights of the parties as to all future acqui- sitions. (3) Where there is no ex- press contract, the law of the matri- monial domicile will govern as to all the rights of the parties to their pres- ent property in that place, and as to all personal property everywhere, upon the principle that movables have no situs, or, rather, that they accom- pany the person everywhere. As to immovable property, the law rei sitw will prevail. (4) Where there is no change of domicile, the same rule will apply to future acquisitions as to 1307 SEPAKATION AND DIVOECE. § lOTl § 1071. Validity of Foreign Divorces. There has been much controversy during the last few years over the validity of foreign divorce decrees, especially those obtained without service or actual notice. The tendency of certain Western States to cater to Eastern divorce business by giving their courts jurisdiction to grant divorces to persons who have been but a sihort time resident in the State, and without personal service, has had the result of attracting many from other States bent upon a quick and quiet separation from domestic troubles. The question has arisen whether a decree in divorce so obtained is entitled to the full faith and credit granted by the United States Constitution to the judgments of other States. We have here, on the one hand, the principle that a divorce valid where made is valid everywhere,' while on the other hand is the consideration that the courts of a State may and should protect its citizens against foreign judgments made without notic; to them and in fraud of their rights.'' Two recent cases in the Supreme Court have clarified the situation considerably. In the first case the Court held that the court of the matrimonial domicile has jurisdiction of divorce even though the wife has left her hus- band at the matrimonial domicile for just cause and established a present property. (5) But where ties who marry in transitu, during a there is a change of domicile, the law temporary residence abroad, or on a of the actual domicile, and not of the journey made for that purpose with matrimonial domicile, will govern as the intention of returning. But the to all future acquisitions of movable true principle in such ease is to con- property ; and as to all immovable sider as the real matrimonial domicile, property, the law rei sitw. Story, the place where, at the time of mar- Confl. Laws, §§ 184-187. And see riage, the parties intended to fix their Besse v. Pellochoux, 73 111. 285. abode, and not the place where the He further adds that although in ceremony was in fact performed. a general sense the law of the matri- Story, Confl. Laws, §§ 189-199, and monial domicile is to govern in re- cases cited. See also 1 Burge, Ge- lation to the incidents and effects of & For. Laws, 244-639; Wharton, Con£ marriage, yet this doctrine must be Laws, §§ 118-121, 166, 187-202; and received with many qualifications and post, Vol. II. exceptions, inasmuch as no nation will G. McLaughlin v. McLaughhi^ will recognize such incidents and ef- (Ala.), 79 So. 354; In re Pusey '3 fects when incompatible with its own Estate (Gal.), 170 P. 846. policy, or injurious to its own interests. 7. Thompson v. Thompson (N. J. So, too, perplexing questions will Ch.), 103 A. 856; State v. Duncan sometimes arise in determining upon (8. G.), 96 S. E. 294; Deyette v. the real matrimonial domicile of par- Deyette (Vt.), 104 A. 232. § 1071 SBPABATIOH AUD DIVOBCE. 1308 different domicile elsewhere.* But in the second and last case on the subject a somewhat different rule was laid down that the mere domicile of one spouse within a State is not sufficient to give jurisdiction in divorce where there was neither appearance by the libelee or personal service within the State.' This decision does not hold, however, that a State court cannot recognize the validity of a foreign divorce obtained without service of process, but only that it does not need to do so, and therefore the principle has been laid down that State courts will recognize foreign divorces ob- tained under statutes similar to their own although obtained on publication without personal service.^" 8. Atherton v. Atherton, 181 U. S. 174 N. Y. S. 859; In re Grossman's 155. See Searles t. Searles (Minn.), Estate (Pa.), 106 A. 86, 88. 168 N. W. 133. 10. Thompson v. Thompson (N. J. 9. Haddock t. Haddock, 201 IT. S. Cb.), 103 A. 856 (where matrimonial 562* See In re Caltabellotta's Will, domicile is in State) ; Kenner t. Ken- 171 N. r. S. 82, 183 App. Div. 753. ner, 139 Tenn. 211, 700, 201 8. "W. See Thompson t. Thompson (N. J. 779, 202 8. W. 723 (where no fraud Cta.), 103 A. 856; Pearson v. Pearson, appears). 173 N. Y, 8. 563. flee BaU v. Cross, INDEX {References are to ggotion*,)' A Seo. ABAmOONMENT of ehildren 799, 800 of wife, effect of on actions , 630 on community property 614 on wife's contracts 225, 431 on wife's deed 216, 464 on liability for necessaries 101, 102 rights of wife 1064 ABATEMENT, of action by spouses 673 ABDUCTION of child 750 of wife ; witness to 64 ACCOUNTING, of community rights 618, 626 of guardian 945 et seq. before action on guardian's bond 963 effect on sureties on guardian's bond 964 final settlement with ward 990 ward's action for 983 ACKNOWLEDGMENT of wife's deed 213, 468 ACTIONS, community property 606, 607, 622, 623 death, for 51 guardian, against 922 by guardian 922, 923 busband and wife 627'-673 against wife 681, 684 by wife against third persons 643 \^ wife as sole trader 318 relating to wife's realty 222 infants 1055-1059 parent and child 691 parent's right of for child's labor 755 ADMINISTRATOR, action by 146 as guardian 838 community property 624 durante mimore aetate 866 ADULTERY 60, 66 as crime 60 as crime against other spouse 65, 66 criminal prosecution for 60 affecting wife's right to settlement 177 cause for divorce 1067 effect on antenuptial settlement 516 effect on larceny from husband 60 effect of wife's adultery on liability for necessaries 104 husband and wife as witnesses 66 ADVANCEMENTS, to cMldren 804 ADVANCES between spouses 642 ADVERSE POSSESSION against wife 207 by husband of wife's lands 208 by infant 1005 AGE of majority 993, 994 1309 1310 INDEX. Sec. AGENCY, dhild as agent for parent 788 infant 1052 hoisband for wife 376-390 for trading wife 312 in making contracts 396 liability for torts of wife 132 wife as agent of hniisband 135-144 for necessaries 93 et seg. ALIEN, wife of, may contract 225 barred from rights in husband's real estate 203 ALIENATION OF AFFECTIONS, joint liability of husband and wife for. 129 ALIMONY as wife's separate estate 331 effect of on liability for necessairiea 105 ANTENUPTIAL SETTLEIiIENTS 490-519 effect on wife's equity to settlement 178 wife as sole trader under 300 ANTICIPATION, restraint on 273 APPRENTICESHIP 1026 ARBITRATION of claims of guardian 926 of claim by infant 1035a contract by wife for 404 ■possession of wife's choses in action by 167 submission to by wife 654 ARSON by husband of wife's property 59 ASSAULT AND BATTERY, action by wife for 659 as crime between husband and wife 64, 65 by husband and wife 634 action by ward 982 ASSIGNMENT of wife's ohoses in action 168 equitable by wife 476 ATTAINDER affecting estate by entireties 568 of husband as bar to interest in wife's realty 189, 203 ATTORNEY'S FEES aa necessaries Ill charged by guardian 906, 912 AUTOMOBILE, parent's liability for child driving 779 AVOIDANCE, by infant 1015, 1036 et aeg. of contract by infant 1008 tusiband and wife, gifts between spouses 558 of wife's contracts 420, 457 of wife's deed 221, 489 of postnuptial settlement 534 B BANISHMENT, effect of on liaJbility for necessaries of wile 106 BANK ACCOUNTS of guardian 904 BANKRUPTCY of husband 160 effect on wife's debts 80 on wife's antenuptial debts 80 on postnuptial settlements 528 affecting wife's equitable estate 252 wife as sole trader 310 BARON AND FEME 35 BASTARDS. See Iixegitimatb Childeeit. BAWDY HOUSE, wife guilty of keeping 66, 67 BIGAMY, illegal 21 as crime against wife 65 BILLS AND NOTES, of guardian 913 by in/fant 1003, 1010 for necessajies 1020 as community debt 610 between spouses 541 of wife 171, 230-233, 405r-407, 412, 452 INDEX. 1311 BLANK, deed by wife in 471 BOARD as necessaries 110 BOARDERS, keeping as separate earnings of wife 33^ BODILY HEIR, adopted child as 718 BOND, guardian's 956 et seq. by infant 1010 for necessaries 1020 BREACH OF MARRIAGE CONTRACT, by infant 1022 BURDEN OF PROOF as to coomirounity property 596 of husband's agency , 382 as to wife's separate estate 349 C CANCELLATION, gee Avoidanct. CELEBRATION of marriage 25 CHASTISEMENT, husband's rigibt of 48 ■parent's right 737 CHILD, defined 685 adopted children 718-735 custody of 63 illegitimate children 704-717 legitimate children 694-703 provided for in antenuptial agreement 505 rights of adult 806 See Parent and Child. CHILDREN, custody of 53 CHOSES IN ACTION of wife 157-164 CHOSES IN POSSESSION, rights of husband in 149 CHURCH, husband's right to comtrol 52 CIVIL LAW of husband and wife 6 in guardiansihip 848 sales of ward's lands 930 CLOTHING, of child 689 of wife, title to 150 as necessaries 110 CO-DEFENDANTS, spouse of one as witness 67 COERCION, presumption of in wife's torts 56, 123 may extend to a series of crimes 58 of husband over wife's crimes presumed 66 over wife's crimes 56 series of crimes 58 COGNOVIT, by infant 1012 COHABITATION as evidence of wife's agency 93 COMMISSIONS of guardians 955 COMMUNITY PROPERTY 7, 579-626 See Husband and Wife. COMPENSATION of guardians 953 et seg. child's right to 756 COMPOUND INTEREST, when guardian cihargeable with 902 COMPROMISE of claims by guardian 925 of claim by infant 1035a of claim by wife 651 CONFIDENTIAL COMMUNICATIONS between husband and wife 70 to parent 692 CONFLICT OF LAWS, adoiptioo 735 age of majority 996 ibastards, property of 710 community property 683 divorces, effect of foreign 1071 domicile and legitimacy 703 guardiane 868 et teg. husband and wife, contracts between spouses 536 1312 INDEX. CONFLICT OF LAWS — Continued. Baa. validity of wife's contracts 224 wife's conveyance 469 wife's notes 233 noiarriage 33 married woman's acts 292 CONSANGUmiTY making marriag* void 16 CONSENT, age of 20 to intercourse by infant 997 CONSIDERATION in antenuptial settlement 497 in postnuptial settlements 530 restoration when infant disafBrms lO&l for wife's contracts 407 for wife's conveyance 460 CONSORTIUM, action by husband for loss of 677 action by wife for loss of 668 CONSPIRACY, hiusband and wife as witnesses 67 by husband and wife 58 CONSTITUTIONAL LAW, validity of statutes concerning guardians 871 right to interfere with parent 693 (power to control wards 827 CONTRACTS of guardiaa 910 husband and wife , 638 between spouses 535-546 action by wife in 652 as to antenuptial debts 81 of wife, her power to charge her separate estate 421-457 husband's liability for wife's 73 effect of coverture on wife's 223-229 effect of coverture on wife's particular 230-242 between spouses as to community property 605 validity of wife's as to separate estate 394—420 of wife for sale of land 239 by infants 1006 et seq., 1013 affirmance 1047 void or voidable 1007, 1009 for service of infant 1028 of service by infant, affirmance 1048 liability distinguished from tort 1031 between parent and child 690 adoption 721, 729 for custody of children 751 for support of child 789 transferring parental, rights 748 CONTRIBUTION, among sureties on guardian's bond 973 CONTRIBUTORY NEGLIGENCE of child 766 of infant 1034 of parent 1035 CONVERSION, by guardian 921 of wife's real estate 202 CONVEYANCES of conmrnnity property 601, 602, 620 for husband's debts 445 by infant, ratification 1044 between spouses 560 by wife 458-489 CORPORATIONS as goiardians 841 infants' rights in 1024 COSTS, sureties on guardian's bond liable for 968 COUNSEL FEES. See Attoeney's Fees., COVENANTS of wife 218, 242 in settlement deeds 1063 to settle after^acquired property 604 wife's liability on 461 INDEX. 1313 COVERTURE at coimmoii law 35 afifectinig crimes 65 effect of on wife's personal property 14^188 on wife's real estate 186-222 on wife's contracts 223, 229 CRIME, infant's responsibility for 997 assault by .hushand on wife 54 husband and wife 55-61, 634 or injuries inflicted by one on the other 65 P'resumiption of husband's coercloni and wife's innocence 5« husband and wife as witnesses to 65 CRIMES, separate penalties for women' 61 assault by husband on wife 54 CRUELTY'as cause for divorce 1067 husband's control of visitors or ctarch as 52 use of force as 49 CURTESY, in commoinity property 615 release by contract 501 CUSTODY of children 53 parent's right to 740-751 of illegitimate children 707, 708 CUSTOM OF LONDON as to wife's rights to contract 75 wife as sole trader 297 D DAMAGES, dhild, injuries to 770 husband, punitive against 138 recovered by wife as her separate estate 332 in action by wife 672 parent, for death of 786 DANGEROUS EMPLOYMENT of minor 760 DEAF AND DUMB, marriage by 18 DEATH, action by spouse for 51, 677, 679 of guardian 863 of ward 851 parent's action for 762 damages for death of parent 786 wife's action for death of husband 66ft DECEIT, actions by spouses for 663 DECLARATIONS of husband and wife as to res geatiB 68 in collateral proceedings 68 DEDICATION, by -wife 477 DEED, guardian's, rights of purchaser under 939 of ward's property 916 infant's 1011 for necessaries 1020 of separation 1060-1063 by wife 458-489 DEFINITIONS, adoption 718 child 685 domestic relations 1 gTjardian and ward 2 guardianship 816 hoisband and wife 2 marriage. . . , 12 parent 685 DELAY, as ratification by infant 1041 DENTAL services as necessaries 113 DESERTION as cause for divorce 1067 by husband 348 effect on right to wife's earnings 342 See Abandon^ieht. 83 1314: INDEX. Sec. DEVASTAVIT hj wife 127 DISAFFIRMAHCE by infant IMS, 1039, 104O DIVORCE 1065-1071 aa remedy for breach of matrimonial obligation 54 divorce from bed and board; divorce from bond of matrimony, etc. . 1066 causes of divorce 1067 adultery. . . , 1067 cruelty 39, 1067 desertion 38, 1067 defenses, . . . , 1068 effect of on actions 630 on comimunity property 614 on duty to support child 796 on estate by entireties 568 on husband's right to emblements 204 on husband's rights in wife's property 148 on liability for necessaries 105 on husband and wife as witnesses 69 of absolute divorce upon property rights 1069 of partial divorce upon property rights 1070 on wife's deed 464 wife's right to settlement 177 foreign divorces, validity of 1071' legislation in general 1065 legitimacy of children born after 69ft prohibition on remarriage 22 DOMICILE of children 702 guardian's right to change ward's 878 husband established 41, 42 matrimonial 40 minor 831 naturalization, effect of 43 DOTAL PROPERTY 599 DOWER, in community property 615 release by contract 501' DRUNKENNESS, rendering marriage void 18 DURESS, marriage under 23, 24 in wife's deed 219' of wife to obtain her signature as surety 420 DYING DECLARATIONS of spouse 64 £ EARNINGS OF CHILD, parent's right to 755 guardian's right to 879, 884 EARNINGS OF WIFE 336-340 as her separate estate 336 property purchased with 340 action® to recover 343 as commumty property 590 . EDUCATION, of ward 886 parent's duty of 774 value of 786 yjECTMENT, husband and wife 635 action by wife for 660 for wife's real estate 222 ELECTION, for infant in chancery 1064 by ward 980 ELIZABETH, statutes of 527, 532, 533, 559 EMANCIPATION of child 807-809 effect on suits by infant 1035a EMBEZZLEMENT, ward's action for 985 EMBLEMENTS, husband's right to 191, 204 INDEX. 1315 iSEC. EMINENT DOMAIN, taking of infant's property KKS ENLISTMENT by infant.TT. 1026 ENTICEMENT of child 750 damages for 770 ENTIRETIES, estate by 564 et seq. EQUITABLE SEPARATE ESTATE of wife 247-285 EQUITY, actions by and against infants 1059 actions between spouses in 628, 644 charge on separate estate 453 relief in case of husband and wife 578 rule as to conveyance to spouses 574 ESCROW, delivery of deed by wife in 469 ESTATE, by entirety SMetseq. ESTOPPEL, of infant misrepresenting age 1032 of ward &87 by wife 487 to deny husband's agency 385 to claim separate estate 285 to claim separate property 351-358 jn wife as sole trader 309 in wife's deed 220 \.o deny validity of wife's contracts 456 EVIDENCE in action by child 768 of adoption ' , 725 of agency by husband 381 confidential commiunications between husband and wife 70 of husband's assent 467 husband and wife as witnesses 62-71 privileged communication to parent 692 in action for support? 797 EXECUTOR, acting also as guardian 891 infant as 1023 F FAMILY, law of 3 expenses as necessaries 116, 121 necessaries of 90 services by wife 47 FORCE, compelling marriage 23 See DuBESS. FOREIGN GUARDIAN 868-870 FRAUD, guardian and ward ? conveyances, impeached by ward 977, 986 dealings between guardian and ward 989 of guardian 908 settlement with ward 976 husband and wife 7 actions by spouses for 663 antenuptial settlements 496, 513, 518 creditors, against 527 in gifts between spouses 559 creditors of husband, against 375 husband's, in relation to wife's estate 361 , 366 .liducing marriage ■_ 23, 24 postnuptial settlements fraudulent as against creditors 527 intent of settler 531 settlement in fraud of husband 506 wife's conveyance in fraud of creditors 484 wife's deed 219 wife's, as estoppel to claim property 355 wife's equitable estate 252 wife's equity to settlement 180 wife's liability for 126 1316 INDEX. FRAUD — Continued. Seo. wife's, under married women's acts 131 infants 102a-1035a. miisrepresenting age 1031, 1032 FRAUDS, STATUTE OF. See Statute of Frauds^ FUNERAJL expenses as necessaries 114, 792 of infant's wife 1022 parent's right to attend 747 FURNITURE as neocssariea 110 G GIFTS, bastards, to 714 community property 593 spouses, between 547-559 of community property 606 parent and child, between 688 spouses, to, in equity 574 wife, by 474 wife to husband 283 wife, to, creating separate estate 255 GROCERIES, as necessaries 110 GUARDIAN AD LITEM 824 for infant 1058 in suits between spouses 648 GUARDIAN AND WARD. KINDS OF GUARDIANS 810-826 ad litem 824 American doctrine, guardians by nature and nurture 817 chancery and protete giiardianship 818 guardians in socage 819 testamentary guardians in this country 820 civil law 826 de facto 825 defloed 2 applied to person and estate 810 English doctrine; guardianship by nature and n^irture 811 classification of guardians in England; obsolete species 812 chancery gTiardianship 815 guardianship by election of infant 816 guardianship in socage 813 testamentary guardianship 814 growth of law 11 idiots, lunatics, spendthrifts, etc 821 married women 822 next friend 824 special guardians ; miscellaneous trusts 823 APPOINTMENT OF GUARDIANS 827-848 administrator 838 adverse interest, one having 838 American practice; notice; trial by jury 846 appointment of infant; right to nominate 844 constitutional power of legislature 827 corporations 841 civil-law rule of appointing guardians 848 courts, authority of ■. 828 jurisdiction in general 829 what courts may appoint.^ 830 domicile or residence of minor 831 effect of 847 Ems^lish practice 845 father alive 833 INDEX. 1317 GUARDIAN AND WARD — Oontimied. APPOINTMENT OP GUARDIANS — Oontiimed. Sec. interest of the ward as a test ; 837 married women 839 na/ture, guardians by 843 non-residents. ^ 840 parents or relative preferred '. 834 parent's choice 836 prior petition preferred . 842 property, necessity of 832 testamentary guardianship; how constituted 835 ^O^''*- • • • 956-978 accounting as prerequisite 963 is conclusive 964 action on the giuardian's bond 961 capacity in which guardian acting 969 costs ' Qigg fraudulent settlement with ward 976 fraudulent transfers, ward's right to impeadh. ......[[...[...... 977 interest ' ggg liability of guardian and sureties 958^ 959 limitation of action ' 975 penalty '.....'.'........'.... 968 real estate, special bonds in sales of 960 J^ceiver '.'.'.'.'.'..'. 95« recognizance; English Chancery rule 956 American rule 957 sureties held on breach occurring while bond outstanding 965 collateral, surety taking •. . . 972 contribution among sureties 973 duty of sureties as to estate 971 for what acts of guardian is surety liable 967 for what property liable 970 on different bonds; special bonds 966 release of 978 subrogation of sureties 974 vaKdity of bond 962 INVENTORY AND ACCOUNTS 944-955 accounts ; English Chancery practice 945 duty to render 947 form 940 in case of death, etc., of guardian 952 intermediate and final, distinguished 949a jurisdiction over 946 with what property guardian chargeable 951 when required 948 commissions 955 compensation of guardians in England 953 in this country 954 inventory. , 944 NATURE OF THE GUARDIAN'S OFFICE 861-871 administration durante minore aetate 866 constitutional questions relating to guardianship 871 de facto 867 foreign guardian, rights of, as to ward's person 869 as to wardi's property 870 extra-territorial rights of guardians in general 868 giuardianship and other trusts blended 865 joint guardians 863 judicial control of the ward's property 864 relates to person and estate 861 trustee, whether a guardian is 862 1318 INDEX. GUARDIAN AND VTARD — Continued. Sko. RIGHTS AND DUTIES OF GUARDIANS CONCERNING THE WARD'S PERSON 872-887 access, parent's right of 976 allowance to parent for ward's support; Chancery rules 885 bastard, guardianship of 717 board furnished by guardian 883 custody, right of 873 parent's rights to 875 domicile, guardian's right to change ward's 876 education of ward, secular and religious 886 guardian's duties as to ward's person; in general 880 habeas corpus to determine custody 877 income or principal, use of 887 services of ward, right to 879 of ward to guardian to be credited 884 »upport of ward 881 by guardian before and after guardiansihap 882 testamentary guardians 874 RIGHTS AND DUTIES OP THE GUARDIAN AS TO THE WARD'S ESTATE 888-9'2S in general ; leading principles 888 actions, right to sue and be sued 922 for benefit of ward 923 arbitration 926 assets, collection of 8915 what property is 896 authority before or after termination of oflSoe 891 bank accounts 904 character in which holds funds 893 comipromise of claims 925 continuance in business 907 contracts in general 910 contract by, not binding on infant 1049 for necessaries 911 for services to ward or estate 912 debts, payment of '906 deeds of property 916 exchanges. . . , 921 expenditures allowed 905 general powers and duties as to ward's estate 889 insurance 917 interest, when chargeable with 902 investment, reasonable time allowed for 897 character of 898 separation of funds 899 statutes covering 901 lease 918 liability for negligence or fraud 908 loans by guardian 903 to guardian. 914 loyalty, duty of; not to make money from estate 890 mortgage or pledge 919 parties. 92/! possession of estate 894 promissory notes 91S real estate, management of 915 guardian's occupation of 920 reinvestment 900 repairs 91 7 sales 921 title in ward's estate 892 unauthorized acts 909 wife of ward, care of 912 INDEX. 1319 GUARDIAN AND WARD — Continued. ■Sec. SALES OF THE WARD'S REAL ESTATE 927-943 Ain«ricaii practice 931 statutes on this subject considered 932 civil-law rule as to sales of ward's lands 930 confirmation of sale 942 decree, requisites of 938 guardian's own sale not binding; public sale usually required 933 interests in land w^hich may be sold' 934 non-residents, sales in. cases of 943 parties to proceedings 935 petition, requisites of 937 proceeds, disposition of 941 pairebaper, rights of, under guardian's deed ; 93i9 (purpose of sales 936 rule as to sales of ward's personal property 927 rule as to real estate; whether chancery can sell infant's lands 938 English chancery doctrine 929 sales void or voidatble 940 TERMINATION OF GUARDIAN'S AUTHORITY 849^860 death of guardian 853 death of the ward 851 how the giuardian's authority is terminated 849 marriage, effect of 146 marriage of female guardian 859 marriage of the ward 852 natural limitation, ward of age, etc 850 other oases where a new guardian is appointed 860 resignation of the guardian 854 removal ; wiho may remove 855 procedure 856 causes of 857 successor, appointment of ; duties 858 WARD, RIGHTS AND LIABILITIES OF 979-992 action by ward or bill for account ^^^ election as to wards, insane or infant 980 emibezzled property, right to recover 985 estoppel of ward 987 fraudulent transactions set aside on ward's behalf 986 general rights of the ward 979 insane persons and infants contrasted 981 limitations, laches ; 984 marriage of ward against consent of chancery or guardian 992 ratify or repudiate transactions of guardian 987 responsibility of gmardian to ward as wrongdoer, etc 982 resulting trusts; guardian's misuse of funds; purchase of ward's property, etc ^88 situation of parties at final settlement of accounts 990 transactions after gardianis.jp is ended 991 transactions between guardian and ward; undue influence 989 H HABEAS CORPUS, use of, by husband and wife 54 HEIRS, rights of, in community property 616, 623 HISTORY of adoption 719 of law of family ^ of married women's acts • 8) "8" HOMESTEAD, community property in 5S6 HORSE as necessaries 11® 1320 INDEX, HUSBAND AND WIFE. Sec. IW GENERAL law in transition state 4 common-law property soheme 5 civil-law scheme 6 general conclusions 10 ACTIONS 627-684 abandonment, eflfect of 630 abatement of action 673 actions between spouses at law 627 in equity 628 arbitration, submission to 654 assault and battery 634, 659 by husband on wife » . . . . 634 compromdse of claim 651 consortium and services, for loss of 668, 677 contract 638, 652 damages 672 death of husband 669 of wife 679 deceit 663 defenses to action by wife 671 divorce, effect of 630 ejectment 635, 660 forcible detainer 660 fraud 663 guardian ad litem, necessity of 648 busband, rights of 674 necessity of joining, as party at law 646 in equity 647 effect of husband's refusal to join 649 judgment, confession of 641, 653 husband's rights in action by wife 674 libel 664 limitations, statute of 629 malicious prosecution 665 married women's acta 631, 666, 682 implied statutory power to maintain action 632 medical expenses 677 necessaries, amounts expended for '. 640 negligence 637 professional 658 next friend, necessity of ; 648 parties, husband as ; 646, 647, 649 wife as 680 partition 639 pleading 670 remedies of spouses against one another for breach of matrimonial obligations ; 54 replevin 636, 661 seduction of wife > 676 separation, effect of 650 services, for loss of 678 slander 664 eurvival of action 673 torts in general 633, 65<5 trespass 657 trover 642, 667, 683 wife, actions against 6S1, 684 by wife against third persons 643 in equity 644 under married women's acts 64S mental angpish suffered by 67S INDEX. 1321 HUSBAND AND WIFE — Continued. ACTIONS — Continued. Sea. necessity of joinder of 680 personal injuries to 662 personal property, injury to 666 AGENCY, WIFE AS AGENT OF HUSBAND 135-144 as to real estate 142 evidence of agency 138 extent of wife's power as agent 137 in household matters and care of husband's property 141 under express power 139 under implied power 140 ratification of wife's unauthorized acts 144 when wife may bind husband as agent 136 where contract by wife in her own name 143 ANTENUPTIAL DEBTS, WIFE'S 76-82 actions to recover antenuptial debts 77, 79 bankruptcy of husband, effect of, on wife's debts 80 contract between spouses, effect of, as to antenuptial debts 81 hardship of husband's liability for wife's antenuptial debts 76, 78 husband's liability for wife's antenuptial debts 76 husband's liability for wife's antenuptial necessaries 76 husband's liability for necessaries of infant wife 76 liability for wife's antenuptial debts as affected by statute 82 ANTENUPTIAL SETTLEMENTS 490-519 acts in pais 517 adultery 516 breach of 514 children, rights of 510 or heirs, provisions for 505 consideration 497 construction 507 contracts releasing rights in estate of other spouse 501 covenant to settle after-acquired property 504 creditors, rights of 519 enforcement. , 510 form 494 fraud 513, 518 general considerations 492 infancy 516 jointure 516 liens, effect of 494 marriage settlements favored by public policy 491 misconduct of spouse. 516 mistakes in 496 operation and effect 509 oral promise to make settlement 499 parol representations 517 postnuptial settlements in execution of antenuptial agreement 500 power of disposition 508 promises to miaa-ry distinguished 493 recording 494 reformation 496 rescission 511 agreement to rescind 512 secret settlement on third person in fraud of husband 606 settlement by third person 603 statute of frauds 502 effect of 499 trustee, necessity of 495 validity in general 498 what law governs 490 wife, inadequacy of provision for 518 1322 INDEX. HUSBAND AND VflVE — Continued. Sec COMMUNITY DOCTRINE 579-626 abandioiument, effect of 614 acoeptance, necessity of 619 acoounting and settlement 626 of community rights 618 actions by or against heirs 623 by or against survivor 622 by spouses 606 against spouses 607 administration in general 624 control, management, and collection of community assets 625 bills and notes 610 burden of proof 596 jontracts, between spouses 605 control, and disposition 600 conveyances .■ 601, 602 between spouses 605 creditors, rights and remedies of, during existence of community. . . . 613 Jarr?ges recovered by spouses 589 dissolution of commiundty; effect of abandonment, separation, insan- ity or divorce 614 divorce, effect of 614 doctrine, nature of 579 European doctrine 580 effect of doctrine 581 dotal property 599 earnings of wife as 590 evidence 596 gifts. 593 between spouses 605 'heirs, rights of 616 history of doctrine 579 Improvements on separate estates 588 insanity, effect of 614 insurance policies 594 lease 603 liabilities chargeable on community property; community debts gen- erally. . , 608 mortgages 601, 602 to pay debts 620 nature of commiunity 582 paraphernal property 599 presumptions 595 property, commiunity 7 property acquired during coverture 585 property in part commtunity 591 public lands acquired by grant or entry 586 purchasers under sale to pay debts, rights and liabilities of 621 purchasers, rights and liabilities of, during coverture 604 cents and profits of separate estates 587 'eminoiation, necessity of 619 iales, mortgages and conveyances; by husband 601 by wife 602 sale to pay debts 620 separate debts 612 separate estate distinguished 592 separation, effect of ©14 status of property, change of 597 determination of 595 surety, obligations as 609 survivor, rights and liabilities of 615 effect of re-marriage of 617 INDEX. 1323 HUSBAND AND WIFE — Continued. COMMUNITY DOCTRINE — Continued. Sw. torts 611 what constitutes 584 ■what law governs 583 wife's interest, nature of , 598 CONTRACTS BETWEEN SPOUSES 535-546 advances. , 542 bills anolicy as wife's separate estate 333 policy on life or property of husband 333 ward's property 917 wife's contract for 408 INTENT of settler in postnuptial settlement 531 INTEREST, sureties on guardian's bond liable for 968 when guardian chargeable with 902 INTOXICATING LIQUOR, wife guilty of sale of 57 INVENTORY of guardian 944 INVESTMENT, by guardian 897-903 J JEWELRY as necessaries 115, 120, 121 JOINDER by husband in wife's deed r. 463 JOINT DEBT, of wife 427 JOINT DEFENDANTS, husband and wife as 67 spouse of one as witness 67 JOINT TENANTS, spouses as 57I husband's rights in wife's realty I94 JOINTURE, antenuptial 516 effect on wife's equity to settlement 178 JUDGMENT, confession by wife 238, 439 by spouses 641, 653 JUDICIAL SALE, purchase by spouse at 576 JURY, trial by, in guardianship 848 INDEX. 1335 K Sec. KEEPING BOARDERS 33» L LACHES, antenuptial settlements 515 ■ward in obtaining acooiints 984 wife 486 LARCENY, by one spouse vs. another 59 effect of adultery of wife 60 LEASE of community property 603 by guardian 918 by Eusband of wife's estate 365 by infant, ratification 1044 between, spouses 560 ■by wife 411, 458-489 LEGACIES of wife 172 LIBEL, action for 757, by spouses 664' LIEN, by husband, on wife's property 368 meonanie's, on wife's property 441 vendor's, on wife's property 440 LIMITATIONS, action on guardian's bond 975 action by spouses 629 iisafflrmance by infant 1043, 1045 ward's action for account 984 LOANS by guardian 903 to guardian 914' between spouses 542| by wife 451 LOCO PARENTIS, one in 686, 687, 716 LOYALTY, of guardian 890 LUNATICS. See Insane Persons. M MAINTENANCE of children 780-801 of illegitimate children 709 of ward 881-883 MALICIOUS PROSECUTION, action for 665 MANN ACT, wife as witness to violation of, by husband 65 MARRIAGE, general conclusions 10 celebration, formal 28, 29 informal 26 third person to officiate necessary 29 coition unnecessary 29 common law 26 consent of parents and guardians 30 contract, more than 13 deceased wife's sister, to 16 defined 12 disqualification by blood 16 of civil condition 17 of prior marriage 21 distinguished from an engagement 27 duress 23 essentials 15 of celAration. 25 force comipelling 23 foreign 33 fraud inducing 23, 24 gift to husband, operating as 145 guardian, female 859 imipediments following divorce 2a impotency 1* 1336 lUDBX. UARSIA6E — Continued. Bea Indian , 17, 29 infancy 20 effect on acts 1053 innocent person, by, with one already married 21 legalizing defective SI legislative 31 legitimating offspring 697 (mental oapaoity 18 m.inor 30 mistake. . 23, 24 name of woman, changing 44 negro 17 iphysical capacity 19 pregnant, with one 23 presuimption from reputation 28 reldgion as disqualification 17 ■restraints upon 32 result of 36 softened by affection 9 void and voidable 14 ward, of 862, 992 words of present consent and future promise 27 MAHRIAGE ARTICLES 50(2 MARRIAGE SETTLEMENTS, effect of divorce on 1069, 1070 of infant 1001 MARRIAGE PROMISE, antenuptial settlement under 493 MARRIED WOMEN, guardians of 822 as guardians ■. 839 MARRIED WOMEN'S ACTS, actions by spouses under 645 actions against wife 662, 684- actions under ., 631 contract, effect of, on wife's 229 oontracts for services, effect on wife's 237 contracts, validity of wife's 394-420 contracts between spouses, effect on 537 conveyance, effect of,, on wife's 216 crimes, effect on wife's liability for 56 estate by entireties, effect on 569 equitable estate, as to wife's 260 fraiidB of wife 131 ■history 8 dmfant married women 1063 necessaries. _ 118, 119 family expenses as necessaries 116, 121 larceny between husband and wife, effect on 59 liability of wife for necessaries under 106 ■paraphernalia, effect on ,. . . . 150 personal property, effect of, on wife's 147 realty, effect of, on husband's rights in wife's 206 rights in wife's real estate 192 Beparation, effect of 119 separate estate, husband's rights and lialbilities on wife's 35i9-393 separate estate, wife's statutory. 319-358 sole trader, effect on wife as. 305, 306 surety contracts of wife, effect on 234, 235 torts of wife, effect of, on liability for 130, 131 MATERIALS charged on wife's land 443a MEDICAL EXPENSES, action by husband for 677 as necessaries 112, 114, 120, 121, 791 liability for operation on child 75* to wife 6* MENTAL CAPACTTY FOR MARRIAGE 18 INDEX. 1337 JJ^r^ -ANGUISH, recovery by husband for wife's 676 JKLNORS. See Infants. MISTAEE inducing marriage 23, 24- in antenuptial settlement reformed 496 MONEY of child. ; ; v.'.'.'.'.'.'.'.'.'.'.'. 689 MORTGAGES between spouses 561 conumjunity property eoi, 602, 620 extension of wife's 483 extent of lien 482 of wife's 482 fuardian, by 919 _ usband of wife's estate 364 infant for necessaries j_ , 1020 discharge by infant 1025 ratification 1044 ■^fe's 217, 436,'458-489 for husbandl's debts 282, 445 novation of 483 MOTHER'S PENSION 783 MURDER, wife guilty of 57 H NAME of woman changed by marriage 44 NATURALIZATION, effect on domicile 43 NECESSARIES, what constitutes 790c* seg. guardian's liability for 861, 886 hueband and wife, as between 83-121 of whole family 90 husband's liability using wife's property for 391 infants 1017 et seq. ■parent, liability of, for 787, 789 putative wife 89 ward 911 wife's antenuptial, liability for 76 See further Husband and Wifb. NEGLIGENCE, child, actions for injury to 757, 760 contributory, of infant 1034 contributory, of parent 1036 guardian 908 husband and wife 637 infant 103O iparent 766 wife 668, 662 NEGOTIABLE INSTRUMENTS. See Bills and Notes. NEGRO, marriages of 17 NEXT FRIEND, for infant actions by 1066, 1057 for ward 824 suit by wife as. 648 NON-RESIDENTS as guardians 840 sales of ward's property 943 NON-SUPPORT. See Husband and Wife. NOTICE, not to sell to wife 96 to husband as notice to wife 371 NOVATION, of wife's mortgage 483 OFFENCES agannflt the property of either spouae 69 OTTICE, infant's right to hold M6 1338 iWDEi. P Smb. PARAPHERNALIA of wife 72, 326 a« cominiunity • 599 distinguished from separate estate 244 mortgage of 363 title to ISO PARENT, defined 685 in law 716 FABENT AST) CHILD. THE RELATION IN GENERAL 685-693 abandonment of children 799, 800 actions between 691 constitutional right of legislature to interfere ■with parent 693 contracts between 690 definitions 685 domioile, change of 716, 878 gifts between parent and child 688 growth of law 11 clothing, money, etc., given to the child 689 insurance, right to 689 loco parentis, one standing in 686, 687, 716 privileged communication to parent 692 etepohiidren 686 ACTIONS FOR INJURY TO CHILD 757-771 in general 757 contributory negligence of child 766 damages for injuries or enticement 770 dangerous employment; father's consent 760 death, parent's action for 762 evidence 768 fraudulent misstatement of age, father's liability for 763 negligence of parent 765 parties 764 ipleadings 767 questions for jury 769 seduction of a child 761 damages for 771 statutes affecting right of action 758 surgeon's liability for operation on child 750 ADOPTED CHILDREN 718-735 adoption by deed or by judicial act 723 effect of 726 as revocation of will of adopting parent 730 conflict of laws relating to adoption 735 consent of parents 722 contracts to adopt 721 definitions 718 evidence 725 history 719 inheritance, child's rights of, from paremte 727 from kindred of parents 728 by contract 729 by children of adopted childl 732 by parents 731 by widow of adiopting parent 733 parties 724 revocation of adoption 734 statutes permitting adoption 720 CHILDREN, RIGHTS OF 802-806 in general 802 advancements 804 INDEX. 1339 PAKENT AND CHILO — Continued. CHILDREN, RIGHTS OF — Continued. Sec. claim's against the parental estate for eervioea rendered 803 inheritance, dhild's rights of 806 rights of full-grown children 806 EMANCIPATION 8O7-80» in general 807 what constitutes 808 effect of 809 ILLEGITIMATE CHILDREN 704-717 bastards, who are 705 bequests to illegitimate children 714 custody under English law 707 under Americaai law 708 gifts to bastards 714 guardianship of 717 inheritance, disability of, at comimon law 711 iby bastards under modern statutes 712 from bastards 713 loco parentis, persons in, distant relatives, etc 718 maintenance ■. 709 presumption of legitimacy 706 recognition, effect of 715 status of 704 what law governs property rights 710 LEGITIMATE CHILDREN IN GENERAL 694-703 in general 695 children legitimate and illegitimate 694 conflict of laws as to domicile and legitimacy 703' domicile of children ; citizenship, etc 702 legitimation of illicit offspring by subsequent marriage 697 not favored in England 698 marriages null but boTia fide contracted 700 by the state or sovereign 701 presumption of legitimacy 696 PARENT'S DUTIES AND LIABILITIES 772-779 leading duties of parents enumerated 772 education 774 religious 776 liability for torts of child 777 for acts of insane child 778 for child's acts in driving automobile, etc 779 protection, diuty of ; defence, personal and legal 773 trade or profession, providing a 775 PARENT'S DUTY OF SUPPORT 780-801 ability of parent to support child 784 agency, child as agent for parent 788 agreements to support 789 allowance to parent for ward's support 88? American penal statutes enforcing support 79f chancery maintenance, allowance from child's fortune 793 out of income or principal 79>* defence, support by others as 80t divorce of parents 796 English statute enforcing support 708 father's support 781 funeral expenses 792 liability of parents to third persoms in absence of agreement 787 medical expenses 791 mother's support - 782 maintenance, duty of, in general 780 pleadings and evidence in actions for euipport 797 1340 INDEX. PARENT AND CJilLX} — Continued. PARENT'S DUTY OF SXJPPORT — OontMM<«d. Sua. proceedings to compel support 801 separation of parents 796 stepchildren, duty towards 7195 value of parental education, support, etc 786 what constitutes support or " necessaries " 790 when duty ceases — 796 PARENTS, RIGHTS OF 736-739 ohastisement, right of 737 child's duty to care for parents 739 contract by, not binding on infant 1049 foundation of parental rights 736 mother's pension acts 783 riglhts to child's property 738 PARENTS' RIGHT OP CUSTODY 740-751 abductioo 750 access, parent's right of 876 American rule 743 chancery jurisdiction in custody; common law overruled 741 child's own wisihes 745 common-law rule; English doctrine 740 contests for custody between husband and wife, etc 751 contracts transferring parental rights 748 divorce, custody under 746 English rule; statute 742 enticement, action for 760 funeral of child, parent's right to attend 747 gTiardian, as against 875 proceedings to determine custody; prior adjudication 740 welfare of child 744 PARENT'S RIGHT TO SERVICES OP CHILD 753-75« child's right of compensation for services to parent 766 guardian's right to 879, 884i father's right to child's labor and services 752 loss of right to child's services 754 mother's rights to child's services and earnings 753 parent's right of action for child's labor 755 PAROLE transfers by wife 478 PARTIES to actions for injuries to child 764 to adoption 724 joinder of hmsband in suit by wife 646, 649 joinder of wife 680 suits concerning ward 924 proceedings for sale of ward's landl .* 936 PARTITION, community property 618 estate by entireties. 568 husband and wife 639, 640 infant. , 1025 PARTNERSHIP between spouses 315, 545 by infant 1014 PENALTY, sureties on guardian's bond, liable for 968 PERJURY, wife guilty of 57 PERSON of the spouse 34-54 PERSONAL PROPERTY, transfers between spouses 563 PIANO as necessaries 110 PIN MONEY of wife 243-248 PLAN of book 2 PLEADINGS, in action by child 767 in actions by spouses 670 in action for support 797 INDEX. 1341 Seo. PLEDGE, by guardian 919 for ihusband's debts , 445 of wife's property 166 by wife to secure husband's debts 282 POLYGAMY, illegal 21 POSTNUPTIAL SETTLEMENTS '....'.'.'.. ! ;52(X-534 distinguished from antenuptial 521 POWER, creation of separate estate by 257 ex ercise by infant . 1002 POWER OF ATTORNEY, by infant '. 1012 to convey given by wife 210 wife's conveyance by 479 PRESUMPTIONS, community property 596 husband's agency 383 lusband's assent , 406 husband's coercion 56 in wife's torts 123 legitimacy 696, 706 wife's coercion 56, 57 wife's evidence of orime 56, 57 wife's innocence 57 wife's separate property 344-348 PRINCIPAL, suptport from 794 PRINCIPAL AND INCOME, use by guardian 887 PRIVILEGED COMMUNICATIONS. See Ev'dence. PROTECTION, parent's duty of 773 PURCHASERS in good faith, rights of 632 rights and liabilities of commaindty property 604, 621 PURCHASES by infant, ratification 1046 PUTATIVE WIFE, necessaries of 89 E RAPE, by infant 9'97 RATIFICATION, .husband's, agency 386, 387 by infant 1037, 1036, 1040 et seq. ward 987 of wife's acts 144 contract 228, 419, 455 deed 48d RAVISHMENT, writ of 923 REAL ESTATE of ward, control of 915 of wife. See Husband and Wife. RECEIPT for wife's choses in action 170 RECEIVING stolen goods; liability of wife 58 RECOGNITION, of bastards 716 RECOGNIZANCE by infant 1027 RECORD of deed by wife 470 REFORMATION of antenuptial settlements 496 REGULATION of household, visitors, etc 52 REINVESTMENT by guardian 900 RELEASE between spouses 546 by divorced woman 397 by husband; effect of 165 by husband of wife's claim 369, 674 sureties on guardian's bond 978 of wife 241, 398 RELIGION, as affecting custody of child 741 as disqualification to marriage. 17 education of child 776 education cf ward 886 REMARRIAGE of survivor, effect of on commnimity property 617 REMOVAL of guardian SSSetseg. 1342 INDEX. RENT, action by wife for 652 as necessaries 119 of separate estate 326 as eommiunitjr property •587 REPAIRS, binding on wife's estate 403 of ward's property 917 REPLEVIN, action by wife for 661 husband and wife 636 RES GESTAE, declarations of husband and wife as to 68 RESCISSION. See Avoidance. RESIDENCE, guardian's right to change -ward's 878 RESIGNATION of guardian 854 RESTRAINT, alienation of wife's separate estate 273 husband's ri^t of 49 marriage 32 REVOCATION of adoption 734 of will by adoption 730 8 SALES, between spouses 563 of community property 601, 602, 620 real estate of ward 927-943 SEALED INSTRUMENT of wife 240 SEDUCTION of child 761, 771 damages for 771 consideration for deed 709 wife, action for 676 SEPARATE BUSINESS, wife's debts in 448 SEPARATE ESTATE distinguished from community property 592 improvements on 588 contracts as to 538 equitable estate of wife 247-285 See Husband and Wira. SEPARATE PENALTIES for women 61 SEPARATION. , . , 1060^1071 abandonment; rights of deserted wife 1064 action by wife in case of 660 consent, by; eifeet of, on liability for necessaries 103 in England 1061 deed of; general doctrine , 1060 English rule 1061i American rule 1062 what covenants are upheld 1063 effect on community property 614 dtuty to support child 796 liability for necessaries 100, 103, 118 wife's eontra,cts 431 wife's deed 464 wife's right to settlement 177 SERVICES of child, parent's right to 752-766 as claim against parent 803 by husband 389 of wife, action for loss of 678 rendered to wife 444 SETTLEMENT, wife's equity to 175'-186 on third person in fraud of husband 506 SILENCE, as ratification by infant 1041 SLANDER, action of 664 SOCAGE, guardianship in 813, 819 SODOMY, as cause for divorce 1067 SPENDTHRIFTS, guardians of 821 STATUTE, requiring infant's affirmance to be in writing 1037 enforcing support of children 799 INDEX. 1343 Sec. STATUTES OF ELIZABETH 627, 532, 533, 559 duty of support 778 STATUTE OF FRAUDS, antenuptial settlements 499 marriage articles 502 ■wife's contracts 396 STEPCHILDREN 686 support of 785 STOCK of wife, reduction to possession 174- STOCKHOLDERS, infants as 1024 wife as 317 •wife's contract as 409 SUBROGATION of sureties 974 SUPPLICAVIT, writ of 54 SUPPORT, ohild's duty of 739 by guardian 881 parent's duty of 780-801 wife's equity to settlement for 175, 186 SURETY, of commxinity property 609 guardian's bond 9i66 et seq. minor as lOlO wife's contract of 234-236, 413-417, 449, 450 SURGEON'S liability for operation on child 759 SURGICAL OPERATION, wife's right to submit to 50 SURVIVAL of actions by spouses 673 SURVIVOR, rights of, in community property 615, 622 TENANTS IN COMMON, spouses as 570 TESTAMENTARY GUARDIANSHIP 814, 820, 835, 871 resignation 854 TORTS, actions for by spouses 633, 656 cdminunity liability for 611 infant's 1030 parent's liability for torts of child 777 wife's 1 74 immunity for 74 liability for 122-134 TRADE, duty of providing for child 775 TRADER, wife as sole 296-318 TRADING, by infant 1014 TREASON, wife as witness to 64 TRESPASS, action by spouses for 657 ■by one spouse vs. another 59 wife's real estate, action for 222 TROVER, action against wife 683 by spouses 642, 667' TRUST declaration by wife 473 deed of, by wife 472 infant as trustee \Wi- resulting in conveyamces to spouses 575 resulting to ward ■ 988 wife's liability for breach of 447 TRUSTEE, guardian as 862 necessity of, in postnuptial settlement 522 U UNBORN INFANT, right of action for injury to 1033 UNDUE INFLUENCE in dealings between guardian and ward 9€9 See Fbaud. USURY, infant's right to avoid 1013 1344 INDEX. W Bao. WAGES of wife 156 WAIVER of marital rights 341 of wife's equity to settlememt 179 WASTE, guardian liable for 9«2 WIFE'S duty to render services 47 right to submit to surgical operation 60 WILL, by infant 999 revoked by adoption 730 WITNESS abduction of wife 84 crime by husband against wife 65 deceased person involved 71 husband and wife as 62-71 spouse of co-defendant as 67 infant as lOOO interest of 71 marriage, parties to de facto 69 mistress as 63 wife aa witness in crime against her ^ 65 to will containing devise to husband 62 Z ZOUCH V. Parsons, rule of ,. . . 1011 Total niumbw of pages, 1372.