James Schouler.

A treatise on the law of the domestic relations; embracing husband and wife, parent and child, guardian and ward, infancy, and master and servant online

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Online LibraryJames SchoulerA treatise on the law of the domestic relations; embracing husband and wife, parent and child, guardian and ward, infancy, and master and servant → online text (page 35 of 90)
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antenuptial agreement must be in writing and signed by both
the persons who contemplate marrying one another^

§ 173. Marriage the Consideration -which supports Antenup-
tial Settlements. — In antenuptial marriage settlements, or what
are called " marriage settlements," the marriage affords a suffi-
cient consideration. Hence a man cannot set aside an agree-
ment in contemplation of marriage, on the plea that his wife's
fortune fell short of his expectations ; for, as Lord Hardwicke

1 Maeq. Hus. & Wife, 220; Cook 2 See Smith on Contracts, 57.
V. Balcer. 1 Stra. 34 ; Harrison v. Cage, 3 Dyg v. Bye, 13 Q. B. D. 147. See

1 Ld. Raym. 386 ; Schouler, Hus. & § 179.
Wife, § 44.



observed, it would be extremely mischievous to set aside mar-
riage settlements upon such grounds.^ It is the consideration
of marriage, not the consideration of a corresponding fortune,
which runs through the whole settlement or agreement, and
supports every part of it, thus making marriage not only a
high, but the highest consideration in fact known to the law.^

In this country the validity of marriage settlements is gen-
erally recognized ; and it is well understood that almost any
bona fide and reasonable agreement, made before marriage, to
secure the wife either in the enjoyment of her own property or
a portion of that of her husband, whether during coverture or
after his death, will be carried into execution in chancery.^
" These marriage settlements," observes Chancellor Kent, " are
benignly intended to secure to the wife a certain support in
every event, and to guard her against being overwhelmed by
the misfortunes or unkindness or vices of her husband. They
usually proceed from the prudence and foresight of friends, or
the warm and anxious affection of parents ; and, if fairly made,
they ought to be supported according to the true intent and
meaning of the instrument by which they are created."* And
marriage is of itself pronounced in the supreme court of this
land to be not only a valuable consideration to support a mar-
riage settlement, " but a consideration of the highest value." ^

§ 174. How far this Support Extends. — But this rule must
be taken with some caution. The marriage consideration sup-
ports every provision with regard to the husband, the wife, and
the issue. As for marriage itself, the marriage of persons for-
merly in loose cohabitation furnishes good consideration ; ^ and

1 Ex parte Marsh, 1 Atk. 159. 3 Cal. 83 ; Smith v. Chappell, 31 Conn.

2 Ford V. Stuart, 15 Beav. 499 ; Nairn 580.

V. Prouse, 6 Ves. 752 ; Peachey, Mar. An estate may be limited to an un-

Settl. 56. married woman's separate use, even

^ Stilley V. Folger, 14 Ohio, 610; where no particular marriage is eon-

2 Kent, Com. 163 ; 2 U. S. Eq. Dig. templated. Schouler, Hus. & Wife, §'

Hus. & Wife, 22-30 ; English r. Foxall, 198 ; Haymond v. Jones, 33 Gratt. 317.

2 Pet. 595 ; Hunter v. Bryant, 2 Wlieat. * 2 Kent, Com. 165.

32; Tarbell v. Tarbell, 10 Allen, 278; 5 Per Story, J., Magniac v. Thomp-

Skillman v. Skillman, 2 Beasl. 403 ; son, 7 Pet. 348. And see Armfield v.

Cartledge v. Cutliff, 29 Ga. 758 ; Albert Armfield, 1 Freeni. Ch. 311.

V. Winn, 5 Md. 66 ; Snyder i-. Webb, ^ Herring v. Wickhani, 29 Graft.





even perhaps a void or illegal marriage, provided that marriage
was contracted with honest conjugal intent, and particularly
where the question affects only their respective interests.^ The
consideration is held also to extend to stepchildren by a former
marriage.^ It does not, however, always extend to collaterals,^
though Sir Matthew Hale and others held formerly that it
would, maintaining that the influence of the marriage consid-
eration extended to purchasers generally.^ Nor are covenants
in favor of strangers supported by the marriage consideration
unless specially provided for.^

The consideration of marriage will support a settlement
against creditors, even prior ones ; this, too, it would appear,
though the parties both knew of the husband's indebtedness, so
long as the provisions of tlie settlement are not grossly out of
proportion to his station and circumstances ;'' and so, too, where
the party to be benefited thereby was implicated in no fraud
upon the other's creditors, even though that provision be unrea-
sonably large.'^ But if it appear that the celebration of mar-

1 Even in England, upon lapse of
time, a settlement deed was allowed to
stand wliere a widower had married his
deceased wife's sister. Ayers v. Jen-
kins, L. R. 16 Eq. 275 ; § 16.

2 Michael v. Morey, 26 Md. 239;
Gale V. Gale. 6 Ch. D. Ui; Vason v.
Bell, 53 Ga. 516. But see Price r. Jen-
kins, 4 Ch. D. 483. Cf. Ardis v. Printup,
39 Ga. 648, with Wollaston v. Tr^be,
L. R. 9 Eq 44, as to children of a fu-
ture marriage.

3 Peachey, Mar. Settl. 58, 60, and
cases cited ; Davenport v. Bishop, 1
Piiil. 701 ; Barham v. Earl of Claren-
don, 10 Hare, 133; Ford v. Stuart, 15
Beav. 505; Cotterell v. Homer, 13 Sim
506; Wollaston v. Tribe, L. R. 9 Eq
44 ; Paul v. Paul, 20 Ch. D. 742.

* Jenkins v. Kemis, 1 Ch. Cas. 103
1 Lev. 152.

6 Sutton V. Chetwynd, 3 Mer. 249
per Sir \Vm. Grant ; Sugden,Law Prop
153; Peachey, Mar. Settl. 61.

6 Campion v. Cotton, 17 "Ves. 272
Ex parte McBurnie, 1 De G. M. & G
446 ; Ramsay v. Richardson, Riley Ch

271 ; Armfield r. Armfield, I Freem.
Ch. 311; Jones's Appeal, 62 Penn. St.
324; Brunnel v. Witherow, 29 Ind. 123;
Barrow v. Barrow, 2 Dick. 504 ; Coch-
ran v. McBeath, 1 Del. Ch. 187 ; Credle
V. Carrawan, 44 N. C. 422.

■^ Collaterals are favorably regarded
in Neves v. Scott, 9 How. (U. S.) 196;
lb. 13 How. 268; Schouler, Hus. &
Wife, § 349, and cases cited. Where
no fraud upon the husband's creditors
can be charged on the woman, she may
hold as a purchaser for value against
the husband's prior creditors, even
though the settlement upon her em-
braced the husband's whole estate, and
the marrying parties had been cohabit-
ing while single, and had illegitimate
children. Herring i\ Wickham, 29
Gratt. 628. Tiiis is an extreme case,
and perhaps some other States would
not extend the rule so far. But it finds
strong support from the Supreme Court
of the United States in a case decided
in 1881, which upheld the settlement
of a large amount of real estate, in con-
sideration of marriage, by an insolvent



riage is part of a scheme between the marrying parties to
defraud and delay creditors, such settlement will not be al-
lowed to protect the property against just claims of the latter.^
At all events both parties to the settlement must have known
of the intended fraud in such cases. Where fraud has been
conmiitted by husband and wife in reference to property em-
braced in the terms of a settlement, the rights of a creditor
with insufficient notice are sometimes upheld as against them-
selves ; and a wife's settlement of her own property has been
so far set aside as to secure payment of her antenuptial debt to
the creditor.^

§ 175. Settlement Good in Pursuance of Written Agreement.
— If an agreement be made in writing before marriaf^e, for the
settlement of an estate, the settlement, although made after
marriage, will be deemed valuable.^ This is a well-settled rule,
and should be constantly borne in mind.

There are dicta to the effect that a settlement after marriage,
reciting a parol agreement before marriage, is not fraudulent
against creditors, provided the agreement had actual existence ;
but this point has never been distinctly decided in England ;
and some late authorities appear to doubt its correctness.* The
payment of money would, however, make a good consideration
for such a settlement as against subsequent creditors.^ The
language of the Statute of Frauds has a material bearing upon

debtor upon the woman who accepted ^ Reade r. Livingston, 8 Johns. Ch.

him, notwithstanding the latter knew 481; Finch v. Finch, 10 Ohio St. 501;

he was financially embarrassed. Prewit Izard v. Izard, 1 Bailey Cii. 228 ; David-

r. Wilson, 103 U. S. 22 See comments, son y. Graves, Riley Ch. 219; Satter-

Schouler, Hus. & Wife, § .349. And thwaite v. Emley, 3 Green Ch. 489;

see Kevan ?■. Crawford, 6 Ch. D. 20; Rogers v. Brightman, 10 Wis. 55;

Exchange Bank v. Watson, 13 R. I. 91 ; Peachey, Mar. Settl. 63 ; Sugd. Vend.

Sanders «;. Miller, 79 Ky. 517. & Purcli., 1.3th ed. 590; Macq. Hus. &

1 Columbine v. Penhall, 1 Sm. & Wife, 257.

Gif. 228 ; Goldsmith v. Russell, 5 De G. * See Peachey, Mar. Settl. 63 ; Las-

M. & G. 555; Peachey, Mar. Settl. 63; sence v. Tierney, 1 Mac. & Gor. 571

Simpson v. Graves, Riley Ch. 2.32. Warden v. Jones, 5 W. R. 447. And

2 Sharpe v. Foy, L. R. 4 Ch. .35; see Babcock v. Smith, 22 Pick. 61
Smith V. Chirrell, L. R. 4Eq. 390; Simpson r. Graves, Riley Ch. 232.
Chubb V. Stretch, L. R. 9 Eq. 555; 6 Stillman o. Ashdown, 2 Atk. 478
Obermayer v. Greenleaf, 42 Mo. 304; Brown v. Jones, 1 Atk. 189. And see
Brame v. McGee, 46 Ala. 170. As to Butterfield v. Heath, 15 Beav. 414.
the good fnitli of a grantee in such

fraudulent settlements, see 79 Va. 92.



all such cases. Yet very informal agreements are often sus-
tained, rather on liberal than technical construction, the court
taking into consideration the fact that marriage had taken
place, or other acts been performed, on the strength of the
promise. 1 The disposition of equity courts in the United
States is favorable to settlements after marriage in pursuance
of some informal prior agreement, particularly as relates to per-
sonal property and as between the spouses themselves. Other
considerations, such as forbearance to sue, or the fulfilment, in
return, of terms prejudicial, might intervene.^ A mere oral
agreement between the intended husband and wife, followed by
marriage and a continued recognition by acts, especially in con-
nection with such other consideration, is held sufficient for the
wife's favor in some late American cases, as between the parties
and those claiming under them.^

§ 176. Form of Antenuptial Settlements. — With respect tO
the form of marriage settlements it may be generally observed
that equity pays no regard to the externals, but considers only
the substantial intention of the parties ; and hence articles or
an agreement will be binding between husband and wife with-
out the intervention of trustees ; for here the husband himself
may be bound to act as trustee.* And hence the signature of

^ See Livingston v. Livingston, 2 afforded in an early decision by Lord

Johns. Ch. 481 ; Resor v. Resor, 9 Ind. Keeper Wright. The intended hus-

347; Broolis v. Dent, 1 Md. Ch. 528; band gave the intended wife a bond

West V. Howard, 20 Conn. 581. conditioned to leave her £1,000 if slie

2 Riley r. Riley, 25 Conn. 154; Brad- should survive him. They married,

ley V. Saddler, 54 Ga. 681. See, as to and of course the bond became void at

the like English practice, Peachey, law. But it was held that in equity

Mar. Settl. 74, 87 ; Macq. Hus. & this should subsist as an antenuptial

Wife, 234 ; Hatnmersiey (-■. De Biel, 12 agreement. Acton v. Pierce, 2 Vern.

CI. & Fin. 45; Lassence v. Tierney, 1 480. Even in law a bond, with condi-

Mac. & Gor. 571. The numerous rf/rta tions properly expressed, may be en-

in all such cases serve rather to ob- forced against the husband to the

scure than illustrate the principle. extent of the penalty therein named ;

•* See Schouler, Hus. & Wife, § .350, yet equity, regarding the contract as

and cases cited; post, §§ 176, 179. one for specific performance, will not

* Peachey, Mar. Settl. 65; Macq. confine the remed_v of the injured party

Hus. & Wife, 242 ; Logan v. Goodall, to the penal sum named in the bond ;

42 Ga. 95. But see Dillaye v. Green- but, enforcing the real obligations of

ough, 45 N. Y. 438. the bond, will give, if need be, thirty

A strong instance of the liberality times that sum to her who married on

of the equity courts in this respect was the strength of it. Such is the advan-



the wife to an instrument or an indenture deed is by no means
indispensable in order that her rights upon marriage considera-
tion be sustained.^ But it is held that an antenuptial instru-
ment, executed by the husband only, binds himself alone by
its purport, though in form an indenture.^ Oral settlements
should only be sustained on clear and convincing proof ; for
such arrangements ought properly to be in writing.^

§ 177. Marriage Articles. — In this connection the use of the
term " marriage articles " is properly to be noticed. " When
promises and agreements in consideration of marriage," says
Mr. Macqueen, " are meant to become the ground-work of set-
tlements, they are called marriage articles. They are often
drawn up hastily, and signed on the eve of the nuptial cere-
mony from want of time to prepare a final deed ; which, how-
ever, when ultimately executed, if it be in strict conformity
with the articles, will supersede them." * The American rule
is favorable to marriage articles, although unskilfully drawn, so
long as they are bona fide articles, and the party marrying
upon their faith had good reason to rely upon them as such.^
Any settlement made after marriage, in pursuance of marriage
articles, or what may be construed as such, receives the full
support of the marriage consideration, and must prevail accord-
ingly against creditors, purchasers, and each of the married

Letters or a correspondence before marriage may establish an
antenuptial settlement where they sufficiently furnish the terms
of the agreement. And so, too, may they constitute m&rriage
articles and support a settlement made in pursuance of their

tage of equity over the law. See Preb- ^ Cochran v. McBeath, 1 Del. Cli.

ble V. Bosflmrst, 1 Swan. 309, before 187.

Lord Elilon, cited in Macq. Hus. & ^ Chadwell v. Wheless, 6 Lea, 812.

Wife. 243 H seq. , Cannel v. Buckle, 2 ^ Hunt's Appeal, 100 I'enn. St. 500;

P. Wms. 242; liippon v. Dawding, 62 Miss. 302. And see § 172.
Ambl. 565 ; Peachey, Mar. Settl. 05. * Macq. Hus. & Wife, 246.

Bonds have been frequently enforced ^ Neves '•. Scott, 9 How. 196; Hooks

in this country as constituting a mar- v. Lee, 8 Ired. Eq. 157; Rivers v.

riage settlement. Aucker r. Levy, 8 Thayer, 7 Rich. Eq. 136; Kinnard u.

Strobh. Eq lit?; Hunter ?'. Bryant, 2 Daniel, 13 B. Monr. 496 ; Montgomery

Wheat. .32; Freeman r. Hill, 1 Dev. & v. Henderson, 3 Jones Eq. 113; Smith

Bat. Eq. .389; Baldwin v. Carter, 17 v. Moore, 3 Green Ch. 485; Potts v.

Conn. 201. Cogdell, 1 Desaus. 456.



terms. ^ But the authenticity of such correspondence should be
well established, so easy is such proof manufactured to suit
emergencies ; and certainly where the contest is between the
married pair and a husband's creditors, the true date of the
letters should be proved, or else that they were duly received
before the marriage ^ Nor will performance be decreed, unless
it can be gathered, from a fair interpretation of the letters, that
they imported a concluded agreement, and induced the mar-
riage ; nor if it be doubtful whether what passed was not mere
negotiation, or a gratuitous offer by the one, which the other
never accepted nor meant to rely upon.^

§ 178. Marriage Settlements by Third Persons. — Promises
made in consideration of the marriage by a third party, such as
the wife's father, may afterwards be enforced against him, as (in
such an instance) by the husband. But it must appear that the
latter knew of the promise, and that it entered as an ingredient
into the marriage ; and the husband cannot, upon finding, after
marriage, that his wife, while single, had received a letter from
her father, promising a certain allowance, hold the latter to spe-
cific performance.^ The promise of a third party may be for the
wife's benefit ; or it may be for the mutual benefit of the mar-
ried parties, and enforceable accordingly.^

Courts of equity have frequently refused, however, to enforce
marriage agreements on the ground of their being inconsistent,
uncertain, and unintelligible ; ^ and particularly is this found-
true of loose expressions contained in letters written by rela-
tives of the married parties, upon which the attempt is made to-

1 Logan V. Wienholt, 1 CI. & Fin. estate of a father was held bound by
611 ; Hanimersley v. De Biel, 12 CI. & his written statements of intention to
Fin. 45; Moorhousey. Colvin, 15 Beav. settle the whole of his property upon
319 ; Kinnard v. Daniel, 13 B. Monr. his daughter, on the strength of wiiich
496; 17 Ch. D. 361, .365. she married; and this, notwithstanding

2 Kinnard v. Daniel, 13 B. Monr. the father, being at the time a widower,
496 ; Montgomery v. Henderson, 8 Jones remarried afterwards and left a widow.
Eq. 113. Coverdale v. Eastwood, L. R. 15 Eq.

'' Fowle V. Freeman, 9 Ves. 315 ; 121 ; a harsh case, truly.

Card V. Jaffray, 2 Sch. & Lef. 384; ^ Franks v. Martin, 1 Eden, 309;

Ciiambers v. Sallie, 29 Ark. 407. Kay v. Crook, 3 Jur. n. s. 107 ; Peachey,

* Ayliffe v. Tracy, 2 P. Wms. 66 ; Mar. Settl. 68 ; Quinlan v. Quinlan,

Madox V. Nowlan, Beatty, 6-32. Hayes & Jones, Ir. Rep 785; Maunsell

^ Thus, in a recent English case the v. White, 1 Jo. & Lat. 539. .

17 257


render them chargeable when the marriage was not thereby
induced. 1

§ 179. Effect of statute of Frauds. — Under the English
Statute of Frauds, and similar enactments in various Ameri-
can States, promises "in consideration of marriage" are required
to be in writing ; and hence an oral promise to settle property
upon an intended spouse is void.^ Cases have arisen, however,
under the Statute of Frauds, where the marriage agreement had
been reduced to writing, but not signed, and yet letters passed
afterwards between the parties, referring to the agreement, which
sufficed to establish it. In general, a letter which contains the
terms of an agreement, or refers to another paper which speci-
fies the terms, is sufficient to take the contract out of the Stat-
ute of Frauds.^

§ 180. General Requirements; Trustee, &o. — Antenuptial
agreements are so liable to misapprehension and fraud, that
they will not be enforced in equity unless the court is satisfied
that they were made, and that the marriage consideration
really entered into the contract."* If in the form of a writ-
ing, due delivery should appear; though if the written con-
tract be produced from the proper custody, and its execution
proved, proper delivery is readily presumed.^ Where duly
made and delivered, such settlements may be cancelled ; but
whether a mutilated instrument was intentionally cancelled
or not is matter for proof."

1 Hincks v. Allen, 28 W. R. 533. Crook, 3 Jnr. n. s. 107 ; Montgomery
As to carrying out the wishes of a ■;;. Henderson, 3 Jones Eq. 113; Peachey,
third party respecting property de- Mar. Settl. 68; Kinnard v. Daniel, 13
vised so as to settle it upon marrying, B. Monr. 496.

see Teasdale v. Braithwaite, 5 Ch. D. 5 in Smith v. Moore, 3 Green Ch.

630. 485, the document being found in tlie

2 Tawney v. Crowther, 3 Bro. C. C. husband's possession after his death,
263 ; Coles v. Trecothick, 9 Ves. 250 ; execution proved, and also his recog-
Lloyd V. Fulton, 91 U. S. Supr. 479 ; nition during his lifetime, due delivery
Flenner v. Flenner, 29 Ind. 569 ; Henry was presumed.

V. Henry, 27 Ohio St. 121 ; § 172. « Barclay v. Waring, 58 Ga. 86.

8 Hammersley v. De Biel, 12 CI. & See summary of doctrine in Bold v.

Fin. 45 ; Moorhouse y. Colvin, 15 Beav. Hutchinson, 20 Beav. 259; Schouler,

349 ; Peachey, Mar. Settl. 67 ; 3 Bro. Hus. & Wife, § 355. As to an ante-

C. C. 263. nuptial conveyance of land to a trustee

* Coles V. Trecothick, 9 Ves. 250 ; to stand seised to the female grantor's

Franks v. Martin, 1 Eden, 309 ; Kay v. use, see 63 N. H. 109.



Under modern rules of separate use, a valid marriage settle-
ment may be made without the designation of a trustee, though
in such contracts, when drawn up with due formality, trustees
are commonly interposed outside the marriage relation, however,
who hold the legal title ; and such is unquestionably the more
prudent arrangement.^ The contract in contemplation of mar-
riage is so favorably regarded, that where the intended husband
gave his verbal assent to whatever disposal by will his intended
wife might make of her personal property, and she executed a
will liberal enough in its provision for him, which gave the resi-
due to other objects, the instrument, though necessarily revoked
as a will by her subsequent marriage, was allowed to stand as
an antenuptial settlement.^

§ 181. Secret Settlement before Marriage; Fraud of a Spouse.
— A secret settlement or voluntary transfer in whole or in part
of her property made by a woman upon third persons, while en-
gaged, and contemplating marriage, is liable to be set aside in
equity as a fraud upon the marital rights of her intended hus-
band, at the husband's instance, when he learns of it. Prima
facie, her transactions as a feme sole with reference to her own
property are valid both at law and in equity ; it is only be-
cause of the fraud that her husband can afterwards obtain relief
against them ; yet the English courts have gone far in discoun-
tenancing all conveyances made by the intended wife in deroga-
tion of the property rights of her intended husband, where made
without notice to him.'^ The secrecy of the proceeding is a ma-
terial element, from which fraud will be inferred.^

1 Cocliran r. McBeath, 1 Del. Ch. * England v. Downes, 2 Beav. 522 ;

187 ; Peachey, Mar. Settl. 260 ; Hay- Macq. Hus. & Wife, 36. Tlie Imsband

mond I'. Lee, 33 Gratt. 317; Schouler, must have been kept in ignorance of

Hus. «&. Wife, § 356. the transaction up to tlie moment of

- Lant's Appeal, 95 Penn. St. 279. marriage. For, as Lord Chancellor

But see § 176 ; 100 Penn. St. 500. A Brougham once observed, if a man,

written contract to this effect was up- knowing what has been done, still

held in Osgood v. Bliss, 141 Mass. 474. thinks fit to marry the lady, he cannot

3 Peachey, Mar. Settl. 142, and cases be permitted to allege afterwards that
cited; 11 C. B. 1035; St. George ?'. he has been deceived. St. George v.
Wake, 1 Myl. & K. 618 ; Macq. Hus. & Wake, 1 Myl. & K. 610. Actual con-
Wife, 36; England v. Downes, 2 Beav. currence on the part of the intended
522; 2 Ch. Rep. 81 ; 1 Eq. Cas. Ah. 59, husband in his wife's settlement will he
pi. 1. even more conclusive against him ; and,



The same general doctrine has been repeatedly declared in
the courts of this country ; and secret and voluntary convey-
ances, made by a woman contemplating marriage, may be set
aside on the husband's subsequent application as a fraud upon
his marital rights,^ under the same qualification that the in-
tended spouse was thereby defrauded.^

If the wife's transfer or conveyance to another, under such
circumstances, be without valuable consideration to herself,
there is the less reason why equity should uphold it ; ^ and if
it be in plain derogation of her own interests, as, for instance,
to some insolvent relative to hold in trust for her, or so as to
suggest that fraud or coercion was practised upon her, it is for
the common nuptial interests that courts of chancery repudiate
the arrangement altogether.* By virtue of late statutory changes
tending to relieve a husband of his wife's antenuptial debts, or
of other common-law burdens, on her account, the husband may
sometimes stand in equity on the stronger footing of a defrauded
creditor, where he seeks to have the secret conveyance of his
affianced set aside in his favor.^

A corresponding rule as to fraud would, doubtless, apply to a
husband, who, before marriage, had made a secret transfer or
conveyance of his own property to his wife's injury ; not, how-
ever, without regard to the difference which subsists at law
between their marital rights in each other's property.^ Indeed,
it is sometimes said that any designed and material concealment

even though he were a minor, will ^ Schouler. Hus. & Wife, § 357 ;

Online LibraryJames SchoulerA treatise on the law of the domestic relations; embracing husband and wife, parent and child, guardian and ward, infancy, and master and servant → online text (page 35 of 90)