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THE

AMERICAN LAW REGISTER.

DECEMBER 1883.

SOME POINTS OF COMPARISON BETWEEN ENGLISH AND AMERICAN LEGISLATION, AS TO MARRIED WOMEN'S PROPERTY.

The English law on the property rights of married women is to us only less important than our own. We do not, indeed, look to it for authority—in this department of law the mother country has followed us, and not we the mother country-but, not to speak of the special ties between us, the attitude of England towards this as yet unsolved social-not less than legalquestion, must be interesting; for it is England which now more than any other nation unites a cautious radicalism and an enlightened conservatism in the treatment of the questions with which the time is grappling

According to a contemporary writer on jurisprudence, (Prof. Sheldon Amos, Science of Jurisprudence), there are three methods which laws relating to married persons may pursue :

1. Where married persons retain the same property rights and capacities as before, subject to the duty of maintaining the household and family.

· This,” he

says,

“ seems to be the method to which the best European legislation is constantly tending, and which has nearly been completely developed in some of the United States of America."

2. Where some artificial relationship is created by the marriage. An instance of this is afforded by the English Common Law of Husband and Wife. Vol. XXVI.-96

(761)

3. Where the artificial relationship is created, but the parties are left a discretion to qualify the nature of this relationship. The equity“Separate Estate" and some Continental systems are examples.

The first of these methods is that to which England, by the Act of 1870, and still further by the Married Woman's Property Act of 1882, has, like ourselves, given adherence.

Now though the two nations have reached the same point, the conditions from and through which they came to it differed widely. The common law as to baron and feme prevailed, indeed, in both countries, but here the parallel ceases. Not to delay upon the origin or present rules of the equity separate estate, suffice it to say, that it has been for a long time possible in England, for property to be held by a married woman with almost full power of control and disposition. The doctrines of a wife's equity to a settlement, and the settlement required at the marriage of a waru of chancery, show the solicitude of that court to protect a wife's rights.

Few marriages among the upper classes, or where much property is involved, take place without a careful settlement of that property. It is upon married women in the poorer classes whose scanty earnings are their all, that the common law bears hardest. In America, the separate use has never been universal. Fully grown in England only at a period subsequent to the settlement of this country, it was administered in certain states, as New York, New Jersey and portions of the South. In New England it was hardly known. (Schouler, Husband and Wife, 248 ff). Some states had no equity system. Nor was the separate estate so necessary in a new, poor, rapidly-growing country, the needs of which required that money should be tied up as little as possible.

Thus in America, for a time, there was not need enough of married women's laws to overcome old doctrines, and in England the class which most required protection had least power to make itself heard.

Our purpose does not admit of any examination of the American married women's acts in general, or of any state in particular. They have been fully commented on by courts and text writers, and, as has been said, “ to attempt a useful summary of laws so incongruous, so purely local and so constantly changing, is useless." (Schouler, Husband and Wife 254.)

Although some older states, even in the last century, had “ feme sole trader” laws, or the germs of them, the movement really began about the year 1850, by several states passing general acts which have since, year by year, been added to, attended meantime by a judicial construction often unfriendly to the actual, if not the legal intention of the framers, until all the states have joined the movement, the last to follow being Virginia, in 1877.

England began later than America, and, has proceeded with less legislation and more indication of some definite plan. Her first step was similar to ours. A clause in the Matrimonial and Divorce Causes Act of 1857, gave to a woman deserted by or judicially separated from her husband, power to act as a feme sole, obtaining in the former case from a court or magistrate a so-called protection order against her husband's creditors. A curious statute in 1878 allowed the same privilege in cases of aggravated assault upon her by her husband. (41 & 42 Vict. c. 19, s. 4.) But the first real Married Woman's Act was that of 1870, which, though now repealed, calls for some notice. This act gave a married woman her earnings and the right to trade; allowed her to deposit in banks, and to hold and transfer stocks, loans and so forth, as if sole ; suffered her to hold to her separate use any property descending to her from an intestate, and money coming to ber by deed and will, not exceeding in amount 2001. ; and empowered her to sue or be sued alone in matters relating to her separate property. (Her powers extended to a suit for libel: L. R., 10 Q. B. 147.) She night insure her husband's life; he was not liable for her ante-nuptial debts except (by an amendment in 1874) as far as he had got assets of hers. She was liable to the parish for support of husband and children. An excellent feature of the act was the provision for a summary and private settlement of disputes between husband and wife as to her separate property. (See on this act a Treatise on M. W. Prop. Act 1870, Griffith.) Now this act was evidently intended to supplement, not to supplant the equity separate use. The right to earnings and to embark in trade, was a measure of relief to the poorer classes to whom the doctrine of separate use was of no real benefit. The same is true of the 2001. taken under deed or will. Large amounts under deed or will could only be held separately by a regular settlement, as before. In cases of intestacy she was given the benefit of the

any .

possibility that the intestate bad contemplated making such settle ment.

Twelve years later was passed the Married Woman's Property Act 1882, introduced by Lord SELBORNE, and taking effect January 1st of this year. And here special reference to the equity separate estate is not to be found. By this act a married woman is capable of acquiring, holding and disposing by will or otherwise, of real or personal property as her separate property as if she were a feme sole, without the intervention of any trustee." She may contract, including the acceptance of any trusteeship or the office of executor or administrator, and sue and be sued without the joinder of her husband. If she trades she is subject to the bankrupt laws. She may deposit in banks, hold and transfer stocks, &c., insure her own or her husband's life, has every remedy civil and criminal for protection of her separate property, even against her husband, with certain exceptions to be noticed hereafter. Property questions between husband and wife may be decided summarily, and, if desired, privately, before a judge. The provisions of the previous act as to his liability for her ante-nuptial debts, and her liability for support of husband and children are continued. It is also provided that her “legal, personal representative” shall succeed to her property rights, and expressly allows existing or future settlements.

Only one or two decisions on this act have appeared, but these give it a liberal interpretation :

In In re March, 52 L. J., Chancery 650, a testatrix gave property, real and personal, to "A. and B., and E., the wife of B.” Mr. Justice Chitty held, that the Act of 1882 had wrought such alteration in the relations of husband and wife as to sever that unity of person which the law attributed to them, and therefore B. and E. took each a third of the property, and not a half between them.

In the Goods of Harriet Ayres, L. R., 8 Prob. Div. 168, it was held, that under this act a husband need not join in his wife's administration bond; he had no responsibility.

In James v. Barraud, 31 W. R. 786, it was held, that a married woman might sue in her own name under this act for torts committed before the act.

Taking up now some points of comparison between this act and our American legislation; in the first place the act provides that it shall operate upon parties already married, but not affect property the title to which has already accrued. Some of our American statutes have neglected to include such a provision, at the cost of some litigation, though the courts interpret these acts as respecting vested rights. (Bishop on the Law of Married Women, $ 37.)

It is worth while to remark, in passing, that the very first section of the first English Act (1870) deals with earnings and trading, while only the later American statutes confer these rights independent of the desertion, absence, and the like, of the husband. (1 Bishop 417.)

A novel feature of the English act is its treatment of the question of presumptions which has given so much trouble here, especially in Pennsylvania. A married woman's contract is presumed to be with reference to her separate estate, and in proceedings for the protection of 'her property her allegation of ownership is sufficient. The burden of proof lies on the other side. The rule here is almost universally the other way (New York and New Jersey, at least, are exceptions), though no state, it is believed, has decided the question by statute, except those in which a schedule of the wife's separate property is required to be put on record, either as a requisite to title or merely as notice to creditors. (Among these are Maine, Florida, Minnesota, California, formerly Iowa.) The plan of the English statute seems preferable as more in accord with the design of married women's laws. (See argument, contra, Keeney v. Good, 21 Penn. St. 354 ) As to the registry system, praised though it has been, is it well that every married woman with property should have to submit a catalogue of it to the general scrutiny, especially in a country where publicity to private and personal affairs is becoming an “institution?”

That part of the act is worthy of notice which provides that money lent by wife to husband gives her a standing as creditor of his estate only after claims of other creditors have been satisfied. As gathered from the decisions—for the statutes are silent on the subject—it is otherwise here, the wife coming in pari passu, or, as in Ohio, as a preferred creditor. (See cases in Wells Sep. Prop. Married Women, p. 372, ff.) Perhaps, by the English rule, temptation as to fraud is made less.

The section on insurance of the husband's life by the wife

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