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dower is assigned by the court having the proper
For a further treatment of Dower, see subject of Real Property.13
SECTION 30. HOMESTEAD.
Homestead is the estate which the husband, or other head of the family, holds in real estate exempt from being taken on execution for his debts. For a further discussion of Homestead, see subject of Real Property.1
SECTION 31. ESTATES BY ENTIRETY.
An estate by entirety was the estate which was formerly created by the gift, conveyance, bequest or other transfer of real estate to husband and wife. They were said to hold by entireties instead of by moieties. The survivor of the two took the whole estate, and there was no way in which this right of survivorship could be defeated.15
The Supreme Court of Illinois has held 10 that a decree of divorce will change an estate by entirety into an estate in common. The contract doctrine has been held in a number of states.
SECTION 32. ANTE-NUPTIAL AND POST-NUPTIAL MARRIAGE SETTLEMENTS.
An ante-nuptial marriage settlement is valid except where one party thereto has obtained an unfair advantage of the other through fraud or undue influence, or where the settlement is in fraud of third parties, and both parties to the contract are aware of such fraud on third parties. In general, the marriage
18 Vol. 6, Sub. 17. 14 Vol. 6 Sub. 17.
15 Vol. 6, Sub. 17.
10 Harris vs. Wallner, 80 Ill.,
is considered a good consideration for all property transferred from one party to the marriage contract to the other. A post-nuptial settlement upon wife by husband is good unless fraudulent as to creditors. The presumption of the law is that a post-nuptial settlement is fraudulent as to creditors.
An ante-nuptial marriage settlement is a contract made in consideration of marriage, and therefore must be in writing to be enforceable. This defense to such a contract, however, being a personal one," the husband may carry out the contract if he so desires, even if the result will be a defrauding of his creditors, unless the wife was a party to such fraud.
SECTION 33. CONVEYANCES BETWEEN HUSBAND AND WIFE AND ADVANCEMENTS.
Under the common law, transfers of real estate directly between husband and wife were invalid.
Under modern statutes a husband may make a gift of any property which he desires to his wife, and such gift will be upheld, if not in fraud of creditors. There is no need of any valuable consideration in such cases; the good consideration of blood and affection is sufficient. Where the husband purchases property with his own money, and takes the title in the name of his wife, the presumption of the law is that the intention was to make a gift of the property to the wife. An advancement is property transferred from husband to wife during his lifetime, with the intention that the same shall constitute a portion of that part of the estate of the husband to which the wife would be entitled upon the death of the husband.
"The contract except in a few States being not void but merely unenforceable.
SECTION 34. THE WIFE'S RIGHT TO CONTRACT AT COMMON LAW.
Under the common law, the rule was very strict that a married woman could make no contract. This rule was first changed to a certain degree by equity and later nearly abolished by statute. At common law, a married woman could only sue or be sued in connection with her husband.
SECTION 35. THE WIFE'S SEPARATE ESTATE IN EQUITY.
The first improvement in the legal condition of a married woman was made by the Equity Courts in their creation of what was known as the Wife's Separate Estate. The beginnings of this principle was as follows: When a husband was obliged to go into a court of equity to reduce any of the wife's property to possession, the court would decree a right of equity to the wife out of such property. This is an illustration of the maxim in equity that he who seeks equity, must do equity. The wife's right of equity could also be asserted by the wife against the creditors of her husband, when the financial condition of the latter made the loss of all her property imminent. Later it became possible to transfer property to a married woman to be held by her independently of the control of her husband.
The separate property of the wife was that property, which, through the assistance of the courts of equity, she was allowed to hold independently of the control of her husband. A married woman was allowed to control, and to sue and be sued in equity in relation to matters affecting her separate estate. At a later period wherever a woman contracted any
debt, she was presumed to have contracted it on the credit of her separate estate, and therefore her separate estate could be made liable for its payment by means of a suit in equity.
SECTION 36. ACTIONS BY HUSBAND FOR VIOLATION OF RIGHTS GROWING OUT OF THE MARITAL
At common law a husband could sue either for criminal conversation with his wife, alienation of his affections or enticing her from him.18 In an action for alienation of the wife's affection, it is not necessary that the husband should prove that the wife had previously had affection for him; 19 nor is it necessary in such an action that the husband should prove that the defendant had committed adultery with the wife." In a recent case it was held that a husband could go into equity to secure an injunction to prevent the alienation of his wife's affection.21
In the case of personal injury to the wife, the husband has a right of action against the tort-feasor for the loss of the services of the wife independently of the action of the wife for the injury received. At common law, this last mentioned action must be brought in the name of the husband and wife jointly.22 The husband could recover for slander spoken of wife. SECTION 37. ACTIONS BY WIFE FOR VIOLATION OF RIGHTS GROWING OUT OF THE MARITAL
At common law, a wife could not sue for the alienation of her husband's affection, but she has the
18 Prettyman vs. Williamson, 39 Atl. Rep., 731; MacKenzie vs. Lautenschlager, 113 Mich., 171. 19 Fratina vs. Caslini, 66 Vt., 275. 30 Higham vs. Vanosdol, 101 Ind.,
"Ex parte Warfield, 50 S. W., 937. 2 Clark vs. Koch, 9 Phila. (Pa.), 100; Paige vs. Rainy, 2 Hill (N. Y.), 309.
right by statute, at the present time, to sue in such cases. The right to sue for alienation of her husband's affections has been given her by statute. The wife has no action for personal injuries to her husband not resulting in his death. At common law, there was no right of recovery belonging to wife for the death of her husband, such a right was first given by Lord Campbell's act.
Statutes similar to Lord Campbell's act have been passed in all the states of this country. This right of recovery for the death of a person exists in favor of any near relative who has suffered pecuniary loss by the death of the deceased.