the leading merchants of New York and of Boston would organize some active relations with St. Petersburg and with Riga, by establishing in those cities, as the English have already done, counting houses and agencies, under the direction of active and intelligent correspondents. It is in this way that many English houses have realized very large profits and created immense fortunes.

Art. VII.--THE SEPARATE PROPERTY OF HUSBAND AND WIFE.

FAMILY SETTLEMENTS BY SEPARATE PROPERTY OF MARRIED WOMEN-THE HUSBAND'S COURTESY IN THE PROPERTY OF THE WIFE.

No one can question the utility and justice of the law authorizing a wife to hold real and personal property within the State of New York as her separate estate, relieved of any claim therein on the part of her husband or his creditors. Since the passing of the act of 1848 and its amendments in 1849 on this subject, authorizing any married woman to take by gift, grant, devise, or bequest, from any person other than her husband, and to hold to her sole and separate use, and convey and devise real and personal property, &c., in the same manner and with like effect as if she were unmarried; and of property possessed before marriage, that the same shall continue her sole and separate property as if she were a single female-the vesting of property in wives, by way of family settlements, has been acquiring an increasing and widely extending popularity in New York and some other States.

It is fair to presume that a majority of these estates now held by married women have been derived from the mutual earnings of the husband and wife, or of the husband alone. Nor are such investments to be complained of, when the husband in donating the money to the wife to purchase such estates does not impair his means of fulfilling his prior obligations to his creditors. Of course, all subsequent credits are obtained with notice of the investment, and cannot charge the property of the wife as the ground of confidence on which such credit was obtained. Yet it is a query, when such estates are purchased on credit and the husband unites with his wife in a bond and mortgage for part of the purchase money, whether specialities executed or debts contracted between the making of such mortgage and the time of its payment might not, by special suit in equity against the husband and wife, charge the wife's estate to the amount contributed by the husband towards the payment therefor subsequent to the making of the contract with the plaintiff in such suit. It might be said that the registry of the mortgage was a sufficient notice to the creditor of the husband's intention, and that the new creditor acquiesced in the prior contract of the husband to pay the mortgage on his wife's land; but it could not be known whether the husband or the wife would pay this mortgage; and, if the husband paid it, whether he intended to do so by way of gift or loan. There can be no doubt if the husband, in a state of bankruptcy, invest moneys in lands, and title is taken in the name of the wife, or through such investment the husband becomes bankrupt and unable to pay his subsisting debts, but that equity would charge

the wife's estate, as the debtor of the husband, to the extent of the moneys so contributed in its purchase. Yet if the creditor exchange the notes or evidences of indebtedness, dated prior to the record of such deed, to the debtor's wife, for such as are dated subsequent, he would be presumed to have done so with notice of the investment in the wife, and, so far as his claims were concerned, to have ratified the same.

The extraordinary risks and liabilities of mercantile pursuits in this country induce a careful inquiry with prudent men as to how they can provide for their families in times of prosperity, against the reverses of bankruptcies liable to be brought home to their establishments by so many circumstances beyond a reasonable foresight and beyond their control. The purchase of a homestead and the vesting of its title in the wife, is the most feasible and safe provision; and a husband whose solvency would not thereby be impaired, may do so from the highest considerations of honor and justice. Indeed, such investment might in subsequent reverses enable him to arise from a state of bankruptcy, and it might become a most useful trust for the benefit of his creditors.

But my more immediate object in this article is to inquire as to the effect of the laws authorizing and sustaining these family investments in respect to the rights of the husband in lands so separately held by the wife.

This question came up before Judge Mason, of the Sixth Judicial District of the New York Supreme Court, in 1849, (4 Howard's Practice Reports, 102,) on a suit by a wife to be restored to the enjoyment and management of an estate, partitioned to her as one of the heirs at law of her father in 1828, as against an intemperate husband, the father of her six children, to whom she was married in 1819. The learned Judge first disposes of the point whether the statutes of 1848-9 in question are in conflict with the provision of the Constitution of the United States against the power of State Legislatures to enact laws impairing the obligation of contracts, in coming to the conclusion that marriage is not a contract within the meaning of such provision. If it were, the laws relating to divorce passed by State legislatures would be void; and still the validity of those laws had never been questioned.

Of marriage, he remarks: "That it is wanting in many of the essential ingredients of a contract, and is regulated more upon the grounds of public policy to accomplish the great objects of such a relation than with reference to the pecuniary rights of the parties as it regards each other. The will of society and public policy supersede the will of the parties. And the very creation of this relation dissolves all previous contracts between the parties, and produces a total incapacity to enter into contracts between themselves."

The Judge then proceeds to inquire whether the acts in question were consistent with the provisions of the constitution of the State of New York, which declare that "no member of this State shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or by the judgment of his peers;" and of section 6th of article 1, declaring "that no person shall be deprived of life, liberty, or property without due process of law."

The decision of this case, as to the rights of the husband in the wife's lands in question, was no doubt sound. These rights being vested in the land before the passing of the acts, they were saved to the husband by

the provisions of the State constitution as against the authority of the legislature to divest them. But the broad conclusion which the Judge seems to have enlarged his record to embrace," that these acts are unconstitutional and void," without any seeming reservation, was scarcely creditable to his high position or reputation. The decision, so elaborate and so various in authorities, lacks a discriminating precision and the substratum of a sound, judicial philosophy to sustain its dicta in respect to the law, outside of the judgment in the case. In fact, the same Judge Mason at General Term, in Hard agst. Cass, 9 Barbour, 366, has given a definite and certain force to all the several provisions of these acts as to property vested under them to the extent of the letter of the statutes. But he, however, slides over the point as to how far marriage, prior to the laws, affects the wife's rights under them. But, holding that the marital rights of the husband are only suspended within the purposes of these acts, and that if lands or personal estate held by the wife are not sold or devised during her lifetime, the marital rights of the husband to all his wife's goods and as tenant by the courtesy, resume all their original common law force in respect to the property of which the wife died seized. This same view has been taken by the Surrogate of the county of Erie, and sustained on appeal by the Supreme Court at General Term sitting in that county, 16 Barbour, 556.

In fact these decisions, as to courtesy, seem to command favor with the judiciary of the State of New York; and there can be little doubt of these views being sustained by the Court of Appeals should the question ever come before them. This conclusion is pre-eminently just, in view of the fact that most of these separate estates are the joint earnings of the husband and wife, and that in case of the wife dying without issue of the marriage surviving her, the husband might be turned out of the house and estate, the erection or accumulation of which had engrossed his toil for the best years of his life, by some remote relatives of his wife whom he had never seen, and who might not have sufficient interest in him to afford him a decent Christian burial.

The husband's right of courtesy in such property is sustained by the policy of a sound economy in securing the husband's attention to protect it from waste and dilapidation, and in leaving the father in the possession of the homestead as the guardian and protector of his children to whom the estate is to ultimately descend. It is equitable from the reciprocal rights of dower of the wife, had she survived him in the husband's lands, that remains unimpaired under the acts in question, as well as the intimate interest in each other's welfare between the husband and the wife so essential to domestic happiness. The doctrine is, that the laws of descent embracing the husband's rights are consistent with the acts in question, and that both stand together.

The rights of the husband being thus saved, the rights of the wife to alienate her lands without her husband are equally sustained, and the difficulties attending the titles of purchasers of such estates are greatly diminished or entirely obviated.

But in the further examination of this subject I observe, the rights of husband and wife in each other's estate are by the common law held as a consequence of the vesting of these in property acquired, as inchoate rights, during the lifetime of the respective parties; and not as predicated in the laws of inheritance or descent. And while the terms of the acts in question

seem so entirely to exclude the husband from his wife's separate estate; at first view it would hardly appear, that any interest in such property could ever inure to the benefit of the husband without a special provision of the statute to that effect; like the laws of the State of Vermont limiting and vesting dower and courtesy to, and in, the property only, of which the husband or wife died seized.

But the grounds of the decisions quoted, going to sustain the husband's right of courtesy in the wife's separate estate, are, that this right vests, in the latent antecedents necessary to give it life and force in the event of the wife's death; as it always has done in the lifetime of the wife, shorn, however, of any immediate enjoyment or advantages to the husband within the scope and purposes of the acts in question, and subject to be entirely divested and defeated by the execution of the powers of alienation or devise vested in the wife by these statutes. An estate subject so to be defeated by the execution of a power is no new thing either to the statute or the common law.

But aside from such a doctrine, it is known that the relation of husband and wife sustains peculiar property interest as against common law disabilities supposed to be incident to the marriage relation. For instance, husband and wife being one in law, they cannot be joint tenants, yet the legal effect of such a tenancy is sustained with respect to land held by husband and wife in their joint names; the survivor taking the entirety of the estate not as joint tenant, but in virtue of his or her rights as husband or wife. And the right of the husband to the deceased wife's goods, and to courtesy in the lands, may be a new child of the marriage, nurtured, sustained, and brought up, as radical law, by equity as its foster father.

The opinion has been stated and in fact it is claimed to be a conclusion from Judge Mason's opinion first noticed above, that formerly the marriage contract gave to the husband a vested courtesy and right of courtesy in all the property which the wife might afterwards acquire. Or, in other words, that a woman, in entering into the marriage relation became a vested property in her husband, beyond the power of the legislature to enfranchise her. I do not say that Judge Mason is justly chargeable with such an absurd dogma; yet he is quoted as its authority. But such a view of the marriage relation is discreditable to the jurisprudence of this age and country. We say a vested property, for it could only attach to her, while, as yet, she had not acquired the coveted estate. A vested right of the husband would attach to the wife as the servile instrumentality through which the estate to be vested might be acquired. But the relation of husband and wife is complete without the incident of property or the civil disabilities of the wife. The title to property and the relation of husband and wife thence to arise, by operation of law, are no part of the marriage contract. The marriage contract, or the wishes of the party thereto, could not alter them without the intervention of a special statute. Hence, where the law is paramount, to control the rights of the contracting parties, these rights, . unless they have become actually vested in property to be sheltered and protected by the provisions of the constitution, quoted as to property, must follow the positive changes of the law. And in this there is no more injustice than in changes of the laws of descent and distribution of intestate estates. Such statutes are held to change the rights of heirs in expectant estates, as to the property vested in the ancestor prior to and at the time of changing the law.

The law follows the property and notes the time of its acquisition by the husband or wife, and not the time of the marriage. And, "What the law makes property is property." Let no one be startled at the idea of an equal right of property vested in the wife, for Adam and Eve were joint

tenants in the Garden of Eden.

In concluding this discussion I am led to note the slow progress of legal reform from the settled prejudices of the courts against any changes that shall impose the labor of examination and construction of new statutes. And here I quote the eloquent severity of Justice Taylor, in the case of the American Missionary Society against Wadhams, 10th Barbour 606. In reference to the statutes in question he says, "That extraordinary lawa law which is well calculated in its influence to imbitter the chief springs of social enjoyment, degrade the sacred relations of husband and wife, leaving in full vigor only the secular and sordid companionship of baron and feme." But such a prejudice will yield to facts when it is seen that the enfranchisement of married women, to enable them to enjoy and hold separate property, has afforded to husbands the opportunities of effecting family settlements in which are demonstrated the most honorable motives and the highest considerations of respect, confidence, and affection, on the part of the husbands contributing to them.

But Equity having by the constitution of the State of New York and our courts become the social friend and companion of law has wrought a noble progress in sustaining the rights as well as responsibilities of married women, and in relieving them, so far as can be done, from all those civil disabilities of the common and statute law that go to impair their personal rights as moral and responsible beings.

The law which for ages counted a married woman incompetent to convey her lands without her husband, has been superseded by the more rational doctrines of equity. In the case of the Albany Fire Insurance Co., vs. Boy et al., 4 Comstock 9, before the Court of Appeals, it was held, that she may convey her estates by acknowledging the deed separate and apart from her husband, before a proper judicial officer, without her husband.

It is apparent that the laws in question vesting separate property in married women, will force upon the courts inquiries as to their personal civil rights; and equity, while it invests them with competent powers to manage their estates, will charge these estates with every just responsibility and liability, to prevent such investments from becoming the dens of fraud. And, personally, married women so becoming enfranchised, will find in judical determinations, a body of beneficial authorities, to sustain their most valuable rights, while they teach them a condescending dignity in their domestic relations.