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respecting the custody and maintenance of the minor children of
the parties as shall be deemed expedient and for the benefit of
such children.

Seo. 11. No decree of divorce shall affect the legitinuunr of
any child bom or begotten in lawful matrimony, unless it shall be
80 expressed in such decree.

Sec 12. In all cases where there shall be a decree of divoioe
or nullity, the court shall make such further decree in relation to
the maintenance, education and custodv of the children as shall
be most conducive to their benefit, and may order a reasonabk
provision for their support to be made by or out of the estate of
tbe guilty party.

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CSAF. 158.]



Sec. 13. Upon any decree of nullity or divorce, the court may
restore to the wife all or any part of her lands, tenements and
hereditaments, and may assign to her such part of the real and
personal estate of her husband, or order him to pay such sum of
money as may be deemed just and expedient ; and may compel
the husband to disclose under oath the situation of said property,
and before or after such decree may make such orders and use such
process as may be necessary to carry the same into full effect, and
to protect the rights of the wife.

OEC. 14. In any case arising under the two preceding sections,
the court may order the property to be conveyed, or the money to
be paid to a trustee or trustees by the court appointed, upon trust
to invest the same, and to apply the income thereof to the support
of the wife, or the maintenance and education of the minor chil-
dren, and to pay over the principal sum or any part thereof, in
such manner as the court may from time to time order ; ai^d every
Boch trustee shall give bonds as the court shall order for the faith-
ful performance of said trust.

Sec 15. In all cases where alimony or any allowance shall be
decreed for the wife or children, the court may require sufficient
security to be given for the payment thereof, according to the
terms of the decree.

Sec 16. The court, upon proper application and notice to the
adverse party, may revise and modify any order made by such
court, and may make such new orders as may be necessary, and
may award costs as justice may require.



Chapter 149 of the Revised Statutes.
'< 236, Laws of 1845.
« 327, « « 1846.


1. Wife deaerted, may hold property.
S. Froperty of hnsbAiid, when sold for

rapport of wife and children.
S. Harried woman may make contracts

if deserted.

4. Bighu of wife of alien liying separ-


5. Sights of hosband becoming a resi-



6, Rights of wife after diroroe.
Forcible removal forbidden.
Guardians, how appointed.
Conreyances by and to wife, how
made, if husband under guardian-
Wife may join in oonveyanees of hus-
band, when.
11. Wife may devise her real estate.



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[title xviir.


12. Contracts before marriage.

13. CoiiTeyances and beqaeats to married


14. Contracts to be recorded.

15. Married women to sue and be sued.


1 6. Hoaband not conrey property to wife.

17. Married women dying inteetate.

18. Superior court may appoint trustee.

19. Mttriage not to be contested after de-

cease, in wbat cases.

Section 1. When any husband shall have deserted his wife
and remained absent for the space of three months, without mak-
ing saitable provision for her support and the maintenance and
education of their minor children, or when any cause is in exist-
ence which is or which, if it continues to exbt for a longer period,
may be a cause of divorce, and the wife is the injured party, she
shall be entitled to hold in her own right and to her separate use
any property acquired by her by descent, legacy or otherwise, and
to the earnings of her minor children, until said parties shall after-
wards cohabit, and may dispose of the same without the interfer-
ence of her said husband or of any person claiming under him.

Sec. 2. In any such case if the husband leave property within
this State, the judge of probate for the county in which the wife
resides, on petition by her and such notice to the husband, personal
or otherwise, as the judge shall order, may authorize such portion
of said property as may be necessary for the maintenance of her-
self and children, to be sold at public auction, and cause the pro-
ceeds of such sale to be appropriated and expended for that pur-
pose, in such manner as he may direct, and require bonds for the
faithful application of such proceeds according to the order of said

Sec 3. Whenever any married woman shall be entitled to
hold property in her own ri^ht and to her separate use, she may
make contracts, may sue ana be sued in her own name and may dis-
pose of said property by will or otherwise, as if she were sole and
unmarried ; and if she shall decease intestate, her husband shall
be excluded from any «hare in her said estate, and such estate shall
be administered and inherited in the same manner as if she were
sole and unmarried.

Sec 4. If any woman being the wife of an alien or of a citi-
zen of any other state, shall have resided in this State for the term
of six months successively, separate from her husband, she shall
be capable of making contracts, may sue and be sued in her own
name for any cause of action that may accrue during such separ-
ate residence, may acquire and hold property in her own right,
and may have the exclusive care, custody and guardianship of her
minor children living with her in this State ; and the earnings of
such children shall be expended in the same manner as if her hus-
band had deceased ; but such woman shall not contract another
marriage, nor sue nor be sued for a breach of such contract

Sec 5. If the husband of such woman shall become a citizen
of this State, and they shall cohabit together, the fact of his be-

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coming sach citizen and such cohabitation shall have the same
effect upon any contract or business of the wife, or upon any suit
by or against her, as if the marriage between them had been first
solemnized at the time of his thus becoming a citizen of this State.

Sbc. 6. If the husband of such woman shall obtain a divorce
from his said wife, in any court or tribunal of any other state or
country, or if a divorce shall be decreed upon application of the
wife during such separate residence, she shall be entitled to retain
to her own use any property real or personal, which may have
been acquired by, or given or descended to her during such separ-
ate residence, anil to retain the exclusive custody and guardianship,
and to receive the earnings of her minor children born in this
country and living with her, unless upon a hearing of the parties
before the superior court of judicature, it shall be made to appear
by other evidence than such decree of divorce, that she has been
guilty of adultery or other criminal breach of the marriage cove-

Sec. 7. If any such married woman shall reside in this State,
separate from her husband, it shall be unlawful for the husband of
such woman, he being an alien 'or being about to leave the United
States to go to any foreign country, to take from the custody of
such woman any minor child of the marriage born in this country,
with intent to remove said child to any foreign country against
the consent of the mother.

Sec. 8. Upon her application a guardian may be appointed
for such child, and the superior court of judicature, or either of the
justices thereof, is authorized to issue an injunction restraining the
father and all other persons from removing said child from this
State against the consent of the mother, and to make such further
orders and decrees as shall secure to her or to said guardian the
custody of such children.

Sec. 9. The wife of any man who is under guardianship, may
join with the guardian in the conveyance of her interest in her
real estate or in the real estate of such ward, or in making parti-
tion of her own real estate held in joint tenancy or in common,
and may make or receive any release or other conveyance neces-
sary or proper for that purpose, in like manner as she might have
done with her husband if he had been under no disability.

Sec 10. Any married woman of full age may join with her
husband in any conveyance of real estate, and any married woman
may join with her husband in release of dower, although she is
not of full age.

Sec 11. Any married woman of the age of twenty-one years
or upwards, and of sane mind, who may be seized in her own
right of any real estate in this State, shall have power to give,
devise and dispose of the same by will in writing, which will, when
signed and sealed by the devisor, and duly attested and subscribed
by three credible witnesses thereto in her presence, and executed
with the formalities now required by law in other cases, shall be

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proved and allowed by the courts of probate in this State, and
shall be effectual in distributing the estate devised, according io
the intention of the devisor; provided^ however^ that any such
will shall in no case affect injnrionsly the rights acquired by the
husband in any estate so devised, by virtue of the marriage con-
tract. {Laws of 1845, chap. 236.)

8ec. 12. At any time before a marriage the parties may enter
into a contract in writing, declaring their consent that after the
marriage shall have been solemnized, the wife shall continue to
hold either the whole or any designated part of any interest in the
real or personal estate, or rights of action of which she may be
seized or possessed at the time of her marriage, to her sole and
separate use, free from the control and interference of her husband ;
and the said wife shall hold, possess and enjoy the same accord-
ingly. (Laws of 1846, chap. 2Sn^ sec. 1.)

Sec 13. Any devise, conveyance or bequest of property, real,
personal or mixed, may be made to any manded woman, to be
held by her without the intervention of a trustee, to her sole and
separate use, free from the interference or control of her husband ;
and she shall hold, possess and enjoy the estate so given, devised,
conveyed or bequeathed accordingly, and shall in like manner hold
any property which she may receive under the provisions of any
deed of trust, made either before or after her marriage. (Laws of
1846, chap. 327, sec. 2.)

Sec. 14. The contract or conveyance aforesaid, whenever the
same shall relate to land or real estate, shall be recorded in the
registry of deeds in the county where said land or real estate is
situated, as is required in relation to deeds of real estate in other
cases. (Laws of 1846, chap. 327, sec. 3.)

Sec. 15. Married women in the cases aforesaid shall, in re-
spect to all such property, have the same rights and possess and
be entitled to the same remedies, in her own name at law and in
equity, and be liable to be sued at law and in equity upon any
contract by them made, or any wrong by them done in respect to
such property. Aod also upon any contract by them made, or
wrongs by them done, before their marriage, in the same manner
and with the same effect as if they were unmarried. (Laws of
1846, chap. 327, sec. 4.)

Sec. 16. Nothing herein contained shall be construed to em-
power any husband to convey any of his property to his wife in
any other manner or with any other effect than if the same had
not been passed. (Laws of 1846, chap. 327, sec. 6.)

Sec 17. If any married woman, holding property to her sep-
arate use by virtue of this act, (sections 12, 13, 14, 15, 16, 17 and
18 of this chapter) shall die intestate, all her right and interest in
the personal property thus held shall vest in her husband, unless
other provision is made in relation thereto by the terms of the con-
tracts or conveyances hereinbefore mentioned ; and he shall be en-
titled to his estate by the courtesy, in all lands and tenements hdd

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by his wife, as if this act had not been passed : provided^ however j
that in every such case it shall be necessary for the husband to
take administration on the estate of the deceased wife ; and he
shall hold such personal property and all the interest of the wife in
any real estate, saving his estate by the courtesy, subject to the
payment of all debts incurred by her either before or after the mar-
riage. ILaios of 1846, chap. 327, sec. 7.)

Sec. 18. Upon the petition of any married woman holding
property to her sole use, the superior court of judicature may ap-
point a trustee or trustees, to hold the same in trust for her ; and
soch petitioner may thereupon convey to such trustee or trustees
all property so held by her upon such trust, and to such uses as
she may declare, and thereafter such tc^stee or trustees may, in his
or their own name or names, prosecute all actions commenced in
relation to such property, and defend all actions brought against
such woman, founded on any cause of action accordingly on such
conveyance. And all such property so assigned shall be liable, in
the hands of such trustee or trustees, to be attached or taken on
execution in any such action. And after such assignment to a
trustee or trustees, the rights and powers conferred upon such
married woman by this act (this and the six preceding sections)
shall cease, and her rights, interest and power shall depend upon
the trusts and uses declared in the instrument of conveyance to
the trustee or trustees, or in any other lawful declaration of trust.
(Laws of 1846, chap. 327, sec. 8.)

Sec 19. Any persons cohabiting and acknowledging each
other as husband and wife, and generally reputed to be such, for
the period of three years, and until the decease of one of them,
shall be deemed after such decease to have been legally married.
(U. &y chap. 149, sec. 11.)



Chapter 150 of the Revised Statutes.
" 34, Laws of 1843.
" 136, " « 1844.
« 136, " " 1844.
« 336, " « 1846.
« 998, " « 1850.

1. Gii«rfi»nf, whan appointed.
1. Mode of appointment.


3. Powers and daties of gnardians.

4. Who may be appointed.

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[title XVIII.


5. Bights of married women as gnard


6. Marriage of female gaardian, effect

7. Property of absent parent, when sold

for support of children.

8. Proceeds of sale, how appropriated.

9. If the mother is guardian and dies,

new guardian appointed.

10. Insanity, what is, how determined.

11. Gaardian for the insane appointed.
IS. Who is deemed a spendthrift

IS. Gaardian of spendthrift appointed.

14. All gaardians shall give bond.

15. Duties of gaardian as to ward.

1 6. Ward to sue and be sued by guardian .

17. Guardian of insane person or spend-

thrift, to give notice of his appoint-

18. To return an inventory.

19. Ward to be employed in labor.

20. Contracts made by ward are void.

2 1 . Contracts, how confirmed by guardian .

22. Gaardian may apply for sale of per-

sonal estate.


23. Land of ward, how sold by licenae.

24. Mode of sale by guardian, and oath.

25. New bond required of guardian.

26. Conveyance of land sold, bow made.

27. Sale mnst be made within two years

after license.

28. Guardians of married persona, pow-

ers and duties of.

29. Proceeds of sale to be equitoblj di-


30. Estate of ward may be decreed insol-


31. Balances of claims remaining due to

survive against the estate.

32. Evidence of sale, how perpetuated.

33. Sale by foreign guardian, how made.

34. Guardian, how removed and new one


35. Guardianship, how revoked.

36. Compensation of guardians.

37. Guardians ad litem, how appointed.

38. Vouchers to be filed in court

39. Penalty for not filing vouchers.

Section 1. The judge of probate in each county, whenever
there shall be occasion, may appoint a guardian to any minor.

Sec. 2. If the minor is under the age of fourteen years, the
judge may appoint a guardian ; if the minor is above the age of
fourteen years, he may, though under guardianship previous to
that age, elect any suitable person for his guardian, who shall be
appointed by the judge ; if, after being cited by the judge, he shall
neglect to nominate a suitable person, the judge may appoint a
guardian in the same manner as if the minor were under the age
of fourteen years.

Sec. 3. Every guardian shall have the custody and tuition of
the minor, and the care and management of his estate, and shall
continue in office until the minor arrives at the age of twenty-one
years, or until discharged according to law.

Sec. 4. The judge may in his discretion appoint the father or
mother, or any person nominated by either, to be guardian of any
child, as he shall think most conducive to the interest of such
child ; but if any cause exists, which if continued may be a cause
for divorce, the preference shall be given to the party injured or to
the person nominated by such party, being a suitable person.

Sec 5. Any married woman so appointed shall have the same
rights and powers and be subject to the same duties and liabilities
as other guardians.

Sec. 6. If any female guardian shall marry, her husband shall

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not tbefeby become guardian, but such marriage shall operate as
an extinguishment of the trast.

Sec. 7. If any person absent from the State, for whose child a
guardian has been appointed, shall neglect to make provision for
uie support of his wife or children, and shall leave property within
the State, the judge, upon petition of the guardian and due notice,
may authorize said ^ardian to sell at public auction such portion
of said property, recu or personal, as he may deem necessary to be
expended frugally and without waste for the comfortable support
of the mother, and the proper education and maintenance of said

Sec. 8. Such guardian shall not be held liable, upon the de-
cease of the father of any such ward, to account to his adminis*
trator for any balance in bis hands not expended, but shall retain
and appropriate the same as if the father had not deceased.

Sec 9. If the mother shall be gpiardian and shall decease, the
judge, upon application of some relative or friend of the minor,
shafi appoint a guardian in her stead, who shall be entitled to
receive any balance in her hands at her decease.
* Sec 10. Upon application by any relative or friend of any
insane person, or upon the like application of the overseers of the
poor of the town in which such person lives, made to the judge of
probate for the county in which said town is situate, that a guard-
ian may be appointed over such person, the judge shall cause the
selectmen of the town in which such person lives, to make inqui-
sition thereinto.

Sec 11. If upon the return of such inquisition and due exam-
ination had, it shall be decreed that such person is an insane
person, the judge shall appoint a guardian over such person ; but
DO such decree or appointment shall be made until such person
shall have been cited to appear and show cause against the same.

Sec. 12. Any person who, by excessive drinking, gaming, idle-
Dess, debauchery or vicious habits of any kind, shall so waste,
spend or lessen his estate, or shall so neglect to attend to any use-
ful calling or business for which he may be capable, as thereby to
expose himself or his family, or any of them, to want or suffering
circumstances, or to endanger or expose the town to which he
belongs, in the judgment of the selectmen of the town in which
he resides, to expense for the support of himself or any of his
family, shall be deemed a spendthrift

Sec 13. Upon complaint thereof in writing, made to the
judge of probate for the county where such persoh resides by said
selectmen or by any relative of such person, said judge shall
appoint a day of hearing, and if, upon due notice and examination
had, it shall appear that such person comes within the description
in the preceding section, said judge shall appoint a suitable person
to be guardian over such spendthrift. {R. S.^ chap. 150, see* 13,
as amended by laws of 1850, chap. 998.)

Sec 14. Every guardian appointed by virtue of thifr chapter^

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shall give bond to the jndge of probate in a reasonable sam, with
sufficient sureties, upon condition among other things for the fiEutb-
fed discharge according to law of the tmst reposed in him, and for
lendenng upon oath a true and jost account of his goaidianahip
when and so often as he shall be thereto required.

Sec. 15. He shall take care as well of the parson as of the
estate real and personal of his ward, shall improve tiie same fra*
gaily and without waste, and apply the annual profits and income
thereof for the comfortable maintenance and support of his said
ward, and his household and family, if any he have ; shall collect
the dues of his scdd ward, shall pay his just debts out of his prop-
erty in the most economical manner, and shall protect the rights
of his scdd ward. (2L &, sec* 17.)

Sec. 16. Such ward shall sue and be sued, prosecute and de-
fend by his guardian. (R. &, sec. 18.)

Sbo. 17. Every gusurdian of an insane person or spendthrift
shall, immediately upon his appointment, give public notice thereof
in some newspaper printed in the county, if any there be, or in
such newspaper as the judge shall direct, and in all cases shall
also post up a notification thereof in the town where his ward
resides. I A. &, sec. 15, amended by laws of 1843, ehqp. 34, sec.

Sbo. 18. Every guardian of an insane person or spendthrift
sdiall also make and return a true and perfect inventory of the
estate of his ward, in the same way as inventories of persons
deceased are taken. (jR. S.j sec. 16, as amended by laws of 1843,
chap. 34, sec. 12.)

Sbo. 19. Every guardian appointed over any spendthrift shall
inculcate habits of sobriety and industry in his ward, and may
employ his ward or the children of his ward in any suitable labor,
or bind them out to labor by a written contract for a term not
exceeding one year.

Seo. ^. No bargain or sale of real or personal estate, and no
contract of any nature whatever, made by a person under guard-
ianship after the appointment made and during the continuance
of such guardianship, shall be valid in law.

Seo. 21. No such bargain, sale or contract shall be valid if
made after an attested copy of any complaint presented to a judge
of probate, upon which a guardian shall be appointed, and the
order of notice thereon shall have been filed with the clerk of the
town in which the person complained of resides, unless the guard-
ian, by an instrtiment under his hand and seal, shall afterwards
approve and ratify the same.

Sec. 22. Any legal guardian, upon the return of the inventory
of the personal estate of his ward, may apply to the judge of pro-
bate by due petition for the sale thereof, and said judge of probate
may by license authorize the sale thereof at public auction ; and
in all cases when it shall appear that said guardian has conducted
the sale of said property with all due fidelity, then the judge of

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probate, in the setflement of the account of said gnardian, shall
charge him with the amount of said sales at the auction prices.
{Laws of 1844, chap. 136, sec. 1.)

Sec. 23. The judge of probate for the county in which any
guardian received his appointment, may authorize such guardian
to sell at public auction the real estate of his ward, or any wood or
timber growing thereon, whenever the sale thereof shall be neces*
sary for the support of the ward or his family, or is conducive to
his or their interest. (R. jS., sec. 22.)

Sec. 24. Before making any sale under such license, the guard-
ian shall take the following oath before the judge of probate or
any justice of the peace ; and shall file the cert^cate thereof in
the probate of&ce before the settlement of his account :

" I, A. B., guardian of C. D., &c., my ward, do solemnly swear
that in disposing of the estate of my said wsurd, for which I have
obtained license, I will use my best judgment in fixing on and

Online LibraryNew HampshireThe compiled statutes of the state of New Hampshire: to which are prefixed ... → online text (page 41 of 80)