CHAPTER III.

OF MARRIAGE SETTLEMENTS.

SECTION I.

Of the origin, policy and effect of Marriage Settlements.

The doctrine of uses and trusts and powers, of which we have treated in the preceding chapters, is the foundation of marriage settlements. These, in England, are the most voluminous and complicated instruments prepared by the conveyancer. They are of rare occurrence in this country. Their general object is to provide a life estate for the wife beyond the control of her husband, and to secure a provision for the issue of the marriage, which neither the parents, or the creditors of the husband, can defeat.

The subject, in most of its aspects, belongs to treatises on equity jurisprudence, or to such as are specially devoted to the law of husband and wife, or the rights of married women. But as it calls for the services of the conveyancer, it falls, to a certain extent, appropriately within the subject of the present treatise.

By the common law, the personal property of the wife becomes, by the act of marriage, absolutely the property of the husband. This embraces not only what she had at the time of the marriage, but what she afterwards acquires by gift, or grant, or bequest, or from her own earnings. Her personal property consists of three kinds, viz: chattels personal, choses in action, and chattels real. Her chattels personal are absolutely, by the common law, vested in the husband. He requires the aid of no court to establish his claim. The husband is entitled to reduce her choses in action to his possession during the lifetime of the wife; and they then become his absolutely. If he dies without doing so, they become hers by survivership. (Whitaker v. Whitaker, 6 John. 112.) But if she dies before he has reduced them to possession, he takes them only as her administrator, and not by survivership; and he is liable for her debts, after her death, to the extent of the assets which he receives from her. (L. of 1853, ch. 576, § 1.) The chattels real of the wife, such as terms for years, whether legal or equitable interests, belong to the husband in a qualified manner. He may transfer them in his

lifetime, and thus become entitled absolutely to the avails of them. But he cannot dispose of them by will, and if he fails to dispose of them while he lives, they survive on his death to his wife. He has, by the common law, the same right to her chattels real which accrue to her during the coverture; and he is entitled to the rents and profits of her real estate during the coverture. As a compensation for these benefits, the law throws upon the husband the burden of the wife's debts, which were incurred while she was sole, and makes him liable for them at any time during the continuance of the marriage, to the extent of her separate estate and property. (Clancy, 2-10. Co. Litt. 351 a. Bac. Ab. tit. Bar. and Feme, C. Willard's Eq. Jur. 473, 474. L. of 1853, p. 1057, §§ 1, 2.)

It is the design of marriage settlements to escape from the extreme rigor of the common law rules, and to remove some of the disabilities which the condition of the marriage state imposes. The principles and practice which the court of chancery adopted in furtherance of these objects, were mainly derived from the civil law. In the first case, which was brought before our highest court, in which the power of a married woman having separate property, to dispose of it at her will and pleasure, when not expressly restrained in the mode of exercising that will, the judges took occasion to express their opinions as to the policy of the law in this respect. Chief Justice Spencer said: "I confess that my partialities in favor of marriage settlements are not so strong as to induce any desire to see the law altered. Generally speaking, the rules of the common law, which give to the husband all the wife's personal property, and the rents and profits of her real estate during coverture, are better calculated, in my judgment, to secure domestic tranquillity and happiness, than settlements securing to the wife a property separate from and independent of the control of the husband. An improvident and dissipated husband may squander his wife's property, and reduce both of them to penury and distress. On the other hand, the possession by the wife of property independent of and beyond the control of the husband, would be likely to produce perpetual feuds and contention. Marriage is a union of persons and interests, pro bono et malo, and the ancient provisions of the common law show forth in our own country decisive proofs of its benign and salutary influence." (Jaques v. Methodist Epis. Church, 17 John. 580.) The language of Justice Platt is no less explicit: "I lament," says the learned judge, "the complicated and artificial anomalies in the WILL.-18

relations of domestic life which have grown, and are still growing, out of the practice of marriage settlements. They give to the wife the amphibious character of a feme covert and a feme sole. I view it as an adulteration of that holy union; as a divorce pro tanto of the marriage contract. A wife in the independent enjoyment of her separate estate, armed with distrust of her husband, and shutting out his affections and confidence, by refusing to give her own in mutual exchange, is an object of compassion and disgust. Legal chastity cannot be denied to her; but there is danger that the sacred institution of marriage may degenerate into mere form. It is sometimes, in practice, little more than legalized prostitution; and the parties seem to have no higher objects than sexual intercourse, and the sanction of legitimacy for their offspring. If, in the rapid progress of refinement in civilization, it shall be thought expedient to go one step farther, and to allow the wife, by ante-nuptial contract to stipulate for an exemption from personal control over her by the husband, then the quasi divorce would be extended one degree further, so as to confer on her the independent enjoyment of the rights and privileges of a kept mistress. But she would have little claim, indeed, to the endearing appellation and character of a wife. . . . If matrimony is not safe and desirable, without these trammels, and fences, and reservations and restrictions, I say marry not at all." (Id. 583.)

But although the policy of marriage settlements was thus early questioned by learned judges, they were assumed by the legislature, in making the revision of the statutes in 1830, as an existing mode of providing for the necessities of families, and suitable regulations were prescribed to guard them from abuse. (See the article concern. ing Uses and Trusts, 1 R. S. 727, and the article concerning Powers, Id. 732, passim.) And the acts of 1848 and 1849 for the more effectual protection of the property of married women, (L. of 1848, p. 307; L. of 1849, p. 528,) expressly enact that all contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place. This was obviously inserted to prevent any implication being drawn from those acts against the legality of ante-nuptial agreements, which had already been made. We have already, in another connection, alluded to these statutes. It is believed that one of the objects which they were intended to accomplish was to diminish the necessity for marriage settlements in future. By permitting a married female to

take by inheritance, or by gift, grant, devise or bequest, from any person other than her husband, and hold to her sole and separate use, and to convey and devise real and personal property, and any interest or estate therein, and the rents, issues and profits thereof, in the same manner and with the same effect as if she were unmarried, and by declaring that such property shall not be subject to the disposal of her husband, nor be liable for his debts, the legislature has given to a feme covert, with respect to her property so acquired, as much power of disposition as is usually contained in marriage settlements, and in many respects more. They have left the power of disposition unfettered by any restriction, save such as is applicable to all persons. In furtherance of the same policy, the second section of the act of 1849 has prescribed a way by which a married woman whose property is held by a trustee, may be put in the beneficial enjoyment and control of all or any portion of such property, for her sole and separate use and benefit. Her trustee is required to convey to her all such property held in trust, on the written request of such married woman, accompanied by a certificate of a justice of the supreme court that he has examined the condition and situation of the property, and made due inquiry into the capacity of such married woman to manage and control the same. The judge will not give such certificate unless he finds on such examination, that the married woman has sufficient capacity to manage and control her property. He has nothing to do with the policy of the law; and the trustee has no discretion to refuse to convey to the married female the trust property, on being served with the written request of the female and certificate of the judge. "May" evidently means "must,"

in this connection.

The operation of this law works a qualified repeal of the exception in the statutes of wills, which excluded married women from the power of devising their real estate by last will and testament. (2 R. S. 57.) This exception when inserted in the original statute of wills in the reign of Henry the 8th, may have been dictated by wisdom and sound policy. But since then, and especially in this country, there has been a revolution in the tenure of real property; and the social position and general education and intelligence of females have placed them on a level with the other sex, and removed the reasons on which the exception was based. The repeal of it by the act of 1849, extends only to the property specified in the third section, and is not made universal. Nor does that act confer upon

a married woman her own earnings, nor change the principle of the common law, which vests, on the marriage, the personal estate of the wife in the husband. It applies only to such property as she acquires after and during the marriage, by inheritance or by gift, grant, devise or bequest from any person other than her husband. The property which she owned before the marriage, and that which she acquires by her own earnings, were left by the act of 1849, to the operation of the common law.

The act of 1860, ch. 90, (L. of 1860, p. 157,) goes further. It provides that the property, both real and personal, which any married woman, at the time of the passing of that law, owned as her sole and separate property; that which comes to her by descent, devise, bequest, gift or grant; that which she acquires by her trade, business, labor or services carried on or performed on her sole and separate account; that which a woman, married in this state, owns at the time of her marriage, and the rents, issues and proceeds of all such property, shall, notwithstanding her marriage, be and remain her sole and separate property, and may be used, collected and invested by her in her own name, and shall not be subject to the interference or control of her husband, or liable for his debts, except such debts as may have been contracted for the support of herself or her children, by her as his agent. This statute abrogates that rule of the common law which vests, on the marriage, the personal estate of the wife in the husband; and that other rule which gave to the husband the earnings of the wife during the coverture. It also so far enlarges the provisions of the act of 1849, as to give to the married female the same control and interest in the real estate owned by her at the time of the marriage, and the rents, issues and proceeds of all such property as, by the act of 1849, was given to her in respect to property obtained by her by inheritance, or by gift, grant, devise or bequest, from any person other than by her husband.

The law of 1860, in some respects, departs from the principles of the act of 1849. While under the former act a married woman may bargain, sell, assign and transfer her separate personal property, and carry on any trade or business, and perform any labor or services on her sole and separate account, and her earnings from her trade or business, labor or services, are her sole and separate property, and may be used and invested by her in her own name, a different rule prevails with respect to her control over her real property. Under the act of 1849, she was left under no greater restraint in