in the

IN WITNESS WHEREOF, The said parties have interchangeably set their hands and seals hereunto. Dated the year of our Lord one thousand eight hundred and

Executed and delivered before

(Witnesses.)

day of

(Signatures.)

(Sea.s.)

SECTION II.

HUSBAND AND WIFE.

By the original common law of this country, a married woman was wholly incapable of entering into mercantile contracts on her own account. By the fact of marriage, her husband became possessed of all her real estate during her life; and if a living child was born of the marriage, he had her real estate during his own life, if he survived her. This life-right in her real estate is called, in law, his tenancy by the curtesy. This life-right remains in force in most of the States.

All the personal property which she has in actual possession becomes by common law absolutely his, as entirely as if she had made a transfer of it to him. But by property in possession the law means only her goods and chattels, or things which can be handled, and which actually are in her hands, or under her direct and immediate control. If she have notes of hand, money due her, or shares in various stocks, these are not considered as things in possession, but as things in action.

"Things in possession" are those things which one has now in his hands, and "things in action" (called in law choses in action), those which are so called because he who owns them cannot get possession of them without an action, if other persons choose to resist him. All debts, and evidences of debt, as bonds, notes, and all shares in stocks, whether national or State, or of incorporated companies or other companies, are things in action. But bank-bills are usually regarded as money, and therefore as things in possession. The common law makes a wide difference between things in possession and things in action in many respects.

The common law of husband and wife as to things in action is this: the husband may, if he pleases, reduce them to his possession, and so make them absolutely his own. In general, he does this by any act which is distinctly an act of ownership; as if he demar ds and collects the debts due to her, or indorses her notes - which he can do in his own name and sells them, or has the stock transferred to his own name, or, in general, makes any final and effectual disposition of these things in action; then they have become absolutely his own.

If, however, he does not reduce them to possession, and dies, and she survives him, her whole right and property in them revive at his death, without any interest whatever in his representatives. And even if he disposes of them by will, this is ineffectual, unless he had reduced them into his possession while he lived.

If, however, he survives her, he will be made, if he wishes it, her administrator, and then can collect all her things in action, and hold them or their proceeds as his own. And if she dies, and then he dies before he has collected these things in action, administration on his wife's effects will be granted to his next of kin, and not to hers, and when collected, they will belong to his estate.

On the other hand, the husband is liable, by the common law, with her, for all the debts for which his wife was liable when he married her. This is true whether they were then payable or did not mature until after the marriage; and whether he received any thing with her or not. If he does not pay them, and dies before the creditor has obtained a judgment against him, his estate is not liable, even if he had a fortune with her, and that fortune goes to his heirs or his creditors, and her creditors get nothing. So it is if the wife dies before the creditor recovers a judgment against the husband, and the husband then retains all her fortune. But her responsibility revives at his death, and she is liable as before marriage, even if she carried him a fortune, and all her fortune went, as above stated, to his representatives. But if she dies, leaving things in action not reduced by the husband to possession, and he reduces them to his possession as her administrator, he must apply them to the payment of her debts, and can hold for himself only what is left after such payment.

Such, we have said, is the common law of England and of this country. We have stated it because it is the origin and common foundation of the law everywhere. But it is not just or right; and there are few, perhaps none of our States, in which it remains unqualified by statutory provisions. But these provisions are very various, and in some of the States they change with almost every

year.

In nearly all the States a married woman conveys her own real estate, and releases dower by joining in a deed with her husband; but she is not generally bound by covenants therein, and, in many, must be separately examined. In most, she has a certain time after removal of the disability of coverture (marriage) to assert her different rights, which, if she does not assert them within that time will be barred. (See chapter on Statutes of Limitation.) Generally, devises or conveyances to husband and wife create a joint tenancy, unless the terms of the devise or conveyance are expressiv

otherwise. And upon the marriage of a woman who is plaintiff or defendant, the suit does not abate, but the husband may be admitted to prosecute or defend with her.

I give here an abstract of the law of husband and wife, as it stands on the statutes of the several States. This abstract includes the homestead provisions. It should be added, however, that the law on these topics can hardly be considered as settled, and changes are frequently made.

use.

ALABAMA.

In this State, the wife's separate estate is alone liable for her antenuptial debts, and the husband is not liable. Rev. Code, 1867, § 2370. All her property held before, or acquired after, marriage is secured to her separate Id. § 2372. The husband is her trustee, but not liable to account for the profits. Id. § 2372. She need not be of full age to release dower. Id. § 1628. The proceeds of a sale of her property are her separate estate, which the husband may use as most beneficial for her. They cannot contract with each other for the sale of any property. Id. § 2374. He may receive property coming to her. Her estate is liable for necessaries for the family. If a suit therefor is brought against a husband, and execution is not satisfied, her separate estate may be sold by order of court. She may dispose of her property by will. Id. §§ 2376-2378. If the husband is unfit to manage her estate (or his estate, or abandons her, or has no property exempt from execution), she may be vested with the powers of a feme sole. Id. § 2384. $1,200 worth of real estate, including the homestead, and $1,000 worth of personal estate, are exempted from execution. Id. § 2881.

ARKANSAS.

In this State, a feme covert may be seised in her own right of any property not coming from her husband. Dig. of Ark. Stat. 1858, c. 111, § 1; Id. c. 63, § 25. The homestead of one hundred and sixty acres of land, or a town or city lot, of the husband while living, and while occupied by widow or child of deceased husband, and certain specified personal prop erty, are exempt from execution. Id. c. 68, §§ 20, 30. A married womar cannot be executrix. Id. c. 4, § 4. Her real and personal property are her sole property, and are not liable for her husband's debts, but may be controlled by her, and she may sue and be sued on account thereof as if unmarried. The private property of no married woman is exempt from the payment of debts contracted by her husband previously to the filing of a schedule of such separate property in the office of the recorder of the county where she lives. Statutes of 1873, c. 126.

CALIFORNIA.

In this State, all property owned before marriage, or subsequently acquired by gift, bequest, devise, or descent, by either party, is the sepa

rate property of each: but all otherwise acquired by either after marriage is common property. An inventory of the wife's separate property, acknowledged or proved, as for a conveyance of land, must be recorded; and this shall be notice of the wife's title; and her property included therein is exempt from seizure on execution for the debts of her husband. He has the management and control of her separate property during marriage; but no alienation can be made, nor lien nor encumbrance created, unless she joins in the deed, and acknowledges upon a separate examination. But when she sells her separate property for his benefit, or he uses the proceeds with her written consent, it is deemed a gift; and neither she nor those claiming under her can recover. In certain cases, a trustee may be appointed to manage her property. The husband has the entire control and management of the common property, with like absolute power of disposition as of his own separate property; and the rents and profits of the separate property of both are deemed common property, unless with respect to the wife, the terms of the bequest, devise, or gift, are otherwise. Dower and curtesy are abolished. Upon the death of either party, one-half the common property goes to the survivor, and the other half to the descendants of the deceased, subject to the payment of his or her debts; if there are no descendants, the whole to the survivor, subject to such payment. Upon divorce, the common property is equally divided. The separate property of the wife is alone liable for her antenuptial debts. But the parties may control these provisions by marriage contract, which must be in writing, and recorded, or otherwise shall not affect third parties. It may be entered into by a minor, but cannot alter the legal order of descent, nor derogate from the husband's rights over the persons of his wife and children as head of the family, or the survivor's rights as guarIdian of the children. Compiled Laws of Cal. 1850-53, c. 147, p. 812. When a married woman is party to a suit, her husband is to be joined: except, if the action concerns her separate property, she may sue alone! and, if between herself and her husband, she may sue and be sued alone. If both are sued together, she may defend in her own right. Id. c. 123, §§ 7, 8, p. 520. There is also a homestead law, exempting the homestead to the amount of $5,000 from final process of court; and it cannot be alienated without the wife joins in the conveyance, and acknowledges apart from her husband. Its other provisions are substantially similar to those before referred to. Id. c. 158, p. 850. The wife's real estate may be conveyed by separate deed, if her husband has been absent one year. Laws of 1855, c. 17. By complying with certain requirements, she may carry on, in her own name, any business, trade, profession, or art; and the property, &c., invested belongs exclusively to her; and she has all the legal privileges and disabilities of debtor and creditor, and becomes responsible for the maintenance of her children. Her husband is not liable for her debts thus contracted without special written promise; and she shall not originally invest more than $5,000, without taking oath that the amount above that sum did not proceed from him. Id. c. 178, p. 881. She may cause the life of her husband to be insured for her benefit. Public Laws of 1854, c. 40. The personal property of the wife can be sold or transferred only when husband and wife join in the sale or transfer, except

ing only what she holds as a feme sole. Laws of 1862, c. 394. She may dispose of her separate property by will, in like manner as any other perLaws of 1866, c. 285. Her earnings are her separate p:operty If she lives separate from her husband, she may convey land by deed without his joining in the deed. Laws of 1870, c. 172.

son.

CONNECTICUT.

In this State, all real estate conveyed to a married woman, in consideration of property acquired by her personal services during coverture. is hers alone; and the avails of all sales of the real estate of a married woman, if invested in her name, or in the name of a trustee for her, belong to her. When any man abandons his wife for a continuous period of three years, she may petition the Superior Court, as a court of equity, in any county where she owns real estate, and such court shall pass a decree empowering her to execute all conveyances necessary to dispose of such real estate, as if she were a feme sole. All the personal property of any woman, married since the 22d of June, 1849, and all the personal property acquired thereafter by a married woman, shall vest in the husband in trust, to have the income thereof during his life, subject to the duty of expending therefrom so much as may be necessary for the support of his wife during her life, and of her children during their minority, and to apply such part of the principal thereof as may be necessary for the support of the wife, or otherwise with her written assent; and upon his decease the remainder of such trust property shall be transferred to the wife, if living, otherwise as she may by will have directed, or in default of such will to those entitled by law to succeed to her intestate estate; but if the husband shall have paid liabilities incurred by her before marriage, a proper court of equity may, vest absolutely in him such portion of said property as may be equivalent in value to the amount of such liabilities so paid. General Statutes, Revision of 1875, pp. 185, 187. Chapter 114, of the Laws of 1876-1877, (approved 16th of March, 1877,) makes important changes in the relations between husband and wife. It leaves, however, the provisions above stated, in full force as to existing marriages, unless the persons now married agree to substitute the provisions of this latest statute. By this statute, neither husband nor wife acquires by marriage any interest in the property of the other, except as provided in this statute. Her earnings are her own property. She may contract with third persons or convey property to them as if unmarried. The property of either is not liable for the debts of the other, incurred before or after marriage. The purchases of either are presumed to be on his or her own account, unless they have gone to the support of the family, or for her reasonable apparel, or for her support when abandoned by her husband, in which cases he is liable. He is bound to support the family. On the death of either, the survivor has the use for life of one-third of the property, real and personal, of the other, which right is not to be defeated by any will of the other. If there be no will, the survivor takes the third absolutely, and if no issue, one-half. If either leaves a legacy to the other, that legacy is to be taken instead of this right; but the legatee may elect whether to accept the legacy or his or her statutory share. The judge of probate may make the wife a reasonable