MARRIAGE. LAW LIBRARY OF UNIVERSITY OF M The relation of marriage is founded upon the will of God and the nature of man, and is the foundation of all moral improvement and all true happiness. No legal topic surpasses this in importance; but some of the questions which it suggests are of much difficulty. No question can be more important than what constitutes a legal marriage; for what can be more important to any one than to know certainly whether he or she is or is not a husband or a wife; and yet there may be some uncertainty about it, not merely from the peculiar facts of an individual case, but from a want of precision and certainty in the principles or rules which decide this question. If persons are married in the usual way, before a magistrate or a minister authorized to solemnize marriage, there is no question; but there is some question whether a marriage is valid and effectual which consists merely of a contract between the two parties, with mutual promise and acceptance, with or without witnesses, and followed by cohabitation as man and wife; but not solemnized in the method by which the laws of that place authorize marriage. It may be considered as certain that the evidence of marriage from cohabitation, acknowledgment by the parties, reception by the family connection as man and wife, and general reputation, is receivable in nearly all civil cases. This, however, proceeds upon the ground of the actual probability that there was a regular marriage where such evidence exists. The presumption of such marriage arising from such evidence is always strong; and in some States perhaps, especially in New York, this presumption has been pushed very far. It may be said that of late years many courts have manifested a tendency towards the view that such a mere contract, with no especial formality, might suffice to make a valid marriage; and some cases come near to this conclusion. Nevertheless, we can only say that we know of no case whatever in which a mere agreement to marry, with no formality, and no compliance with any law or usage regulating marriage, is actually permitted to give to both of the parties, and to their children, all the rights and duties, and impose upon them all the obligations and liabilities, civil and criminal, of a legal marriage. We have referred to New York, and we may add Pennsylvania and Alabama, as States in which the courts appear to incline to the view that no especial form or ceremony is necessary. On the other hand, from cases in California and Oregon, it would seem that in those States the marriage is not legal unless the contract be declared before a person authorized to solennize marriages, and in the presence of witnesses. It is everywhere agreed that a precise compliance with all the requirements or directions of law has not been deemed necessary. As to some important provisions, it has been held that a disregard of them was punishable, but did not avoid the marriage; as the want of consent of parents or guardians where one party is a minor or an omission of the publication of banns. The essential thing seems to be the declaration of consent, by both parties, before a person authorized by law to receive such a declaration. Consent being of the essence of this contract, it cannot be valid if made by those who, when they made it, had not sufficient mind to consent; as by idiots or insane persons. Such a marriage is voidable during the life of both parties; but if it be not set aside during the husband's life, his wife becomes entitled at his death to the rights of a widow. The Supreme Court in any State, and especially a court having full powers of equity, may make inquiry into the validity of the marriage, and decree accordingly that it is valid or void. Marriages are also void if another husband or wife of either of the parties be living, or if they are within the prohibited degrees of kindred; and voidable by the injured party, if procured only by force or fraud. The wife may everywhere, even by common law, be the agent of the husband, and transact for him his business transactions, making, accepting, or indorsing bills or notes, purchasing goods, rendering bills, collecting money and receipting for it, and in general entering into any contract so as to bind him, if she has his authority to do so. And while they continue to live together, the law considers the wife as clothed with authority by the husband to buy for him and his family all things necessary in kind and quantity for the proper support of his family; and for such purchases made by her he is liable. The husband is responsible for necessaries supplied to his wife, if he does not supply them himself. And he continues so liable if he turns her out of his house, or otherwise separates himself from her, without good cause. But he is not so liable if she deserts him (unless on extreme provocation), or if he turns her away for good cause. If she leaves him because he treats her so ill that she has good right to go from him and his house, this is the same thing as turning her away; and she carries with her his credit for all necessaries supplied to her. But what the misconduct must be to give this right is uncertain. Some English cases are very severe on this point. In one, a husband brought a prostitute into his house, and confined his wife to her own room under pretence of her insanity But the court held this to be insufficient. The Supreme Court of New York, in commenting upon this case, said that "the doctrine contained in it cannot be law in a Christian country." In America the law must be, and undoubtedly is, that the wife is not obliged to stay and endure cruelty or indecency. It may be added, that if a man lives with a woman as his wife, and represents her to be so, he is liable for necessaries supplied. to her, and for her contracts, in the same way as if she were his wife; and this even to one who knows that she is not his wife. The statutes of which we have given an abstract are intended to secure to a married woman all her rights. But in all parts of this country, women about to marry - or their friends for them— often wish to secure to them certain powers and rights, and to limit these in certain ways, or to make sure that their property is in safe and skilful hands. This can only be done by conveying and transferring the property to TRUSTEES; that is, to certain persons to hold the same in trust. This is done by a legal instrument, which is almost always an indenture; by which is meant an instrument under seal between two or more parties. This instrument must set forth precisely, and with legal accuracy, just what the trust is; that is to say, just what the trustees or the woman or her husband may do, and just what they must do. This is one of those instruments which require peculiar care and exactness. We give as models or forms, two, differing in their terms and purposes. Both were drawn by very skilful lawyers, and will, with such changes of omission or addition or alteration as the circumstances of any case or the wishes of the parties make necessary, be useful and safe guides in the preparation of such instruments. (13.) AN INDENTURE TO PUT IN TRUST THE PROPERTY OF AN UNMARRIED WOMAN. THIS INDENTURE of two parts, made and concluded this day of of and of by and between single woman, of the first part, and of the second part, WITNESSETH, That the said party of the first part is seised and possessed of certain real and personal estate, to wit, one undivided moiety of the reversion in and of a messuage and land in bounded as follows: a mortgage of a lot of land bounded on Street, and described to in the deed of which is recorded in the fol. a mortgage of a lot of Street, and described in the deed of fol. a mortgage Street, and described in the recorded in the said registry, lib. a mortgage of a lot of land bounded on fol. Street, recorded in the one hundred shares in the in the capital stock of the Bank, in twenty-five shares and fifty shares in the capital stock of the Bank of signed by the said also a note of hand, for the sum of fifteen thousand dollars; a for the sum of three thou and for note of hand, signed by the said sand dollars; a note of hand, signed by the sum of two thousand five hundred dollars; a note of hand signed by for the sum of six thousand dollars, which notes are severally secured by the lands and tenements, mortgaged as aforesaid; also a note of hand, signed by for the sum of one thousand dollars. All which real and personal estate the said party of the first part is desirous that the party of the second part should have and hold in trust for certain uses and purposes hereinafter set forth and expressed; and in conformity with said intention, and for the purpose of carrying the same into effect, the said party of the first part, in consideration of the sum of five dollars paid to her by the party of the second part, the receipt of which she doth hereby acknowledge, and for divers other good considerations moving her thereto, hath given, granted, sold, and conveyed, and doth give, grant, bargain, sell, and convey, all the said lands, tenements, and real estate, and doth hereby bargain, sell, transfer, assign, and set over all the aforesaid chattels and personal estate, as the same are above specified and described, unto the said and and their heirs and assigns. To have and to hold the said granted premises unto the said and and their heirs and assigns, and to the survivor of them, and his heirs and assigns for ever, to their own use, but in trust nevertheless for the purposes, objects, and intents hereinafter set forth and expressed, and for none other, namely: : First. That the said trustees and their successors in the said trust shall permit the said party of the first part, without any hinderance or interference by them, so long as she shall remain sole and unmarried, and shall see fit so to do, to receive and take in her proper person, or by her agent or attorney, the rents, income, dividends, interest, and profits of the said trust estate, real and personal, without any accountability therefor, to them the said parties of the second part; but if required by her, the said party of the first part, so to do, the said trustees and their successors shall collect and receive the said rents, income, and profits of the trust estate, and shall from time to time pay over the same unto the said party of the first part for her own use. Secondly. That from and after the solemnization of the marriage of the said party of the first part, whenever that event may take place, the said trustees and their successors shall collect, take, and receive all the rents, income, and profits of the trust estate, real and personal, and shall from time to time pay over the same to the said party of the first part, to and upon her separate order or receipt, made and signed by her, at or about the time of such payments respectively and for her proper use, free from the control or interference of any husband she may have. Thirdly. That at and after the decease of said party of the first part, the said trustees and their successors shall be seised and possessed of the said trust estate to and for the use of such person or persons as the said party of the first part, by any last will and testament, duly executed, if she die sole and unmarried; or, in case she be at her decease a married woman, by any paper writing signed by her in presence of two or more credible witnesses, shall order, and appoint to take, receive, and hold the same, and in such shares and manner, and upon such terms and conditions, as she shall direct, order, and appoint as aforesaid: and in case the said party of the first part shall omit to make any such will or testamentary appointment, then the said trustees and their successors shall hold the trust estate to the use of such person or persons as by the laws of this Commonwealth would, in case the party of the first part had died seised and possessed of the then existing trust property in her own right, have been entitled to the same as heirs-at-law, or distributees; provided, always, that in such case the husband of the said party of the first part, if she leave a husband, shall be entitled to his life-estate in all the real estate, as if he were tenant by the curtesy in and of the same, and be subject to all the duties incident to a tenant by the curtesy. Fourthly. That the said trustees and their successors shall keep the said trust estate, real and personal, constantly invested in the most safe and profitable manner in their power, but relying always on their discretion in this behalf; and shall accordingly have power to sell and dispose of any of the said trust estate, and to make and pass all necessary deeds and instruments of conveyance thereof, and to purchase any other estate, real or personal, and the same to sell again, and so from time to time to change the property composing the trust fund and estate; provided, always, that all real and personal estate which may be purchased by them the said trustees with the trust moneys, or the proceeds of sale of the trust property, shall be conveyed and assigned to them and their successors as trustees as aforesaid, and shall be holden always upon the same trusts, and with the same powers, and for the same purposes, as are set forth and declared in this indenture of and concerning the estate firstly above described and conveyed to the said trustees. Fifthly. That the said trustees or their successors, in case the said party of the first part shall so order and direct, shall invest the trust money or estate, or such part thereof as they shall be ordered as aforesaid, in the purchase of such house for the habitation and dwelling of the said party of the first part as she may select, and shall lay out and expend such other part of the said trust inoney and estate as she, the said party, shall order and direct, in the purchase of such furniture, plate, horses, and equipages as |