William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

. (page 107 of 108)
Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 107 of 108)
Font size
QR-code for this ebook

enabling Skfeme covert to devise real and personal estate. The acts of 1848,
1849, apply to both the legal and equitable estates of married women. Colvin
r. Currier, 2 Bar. Com. R. 371. In Ranson o. Nichols, 22 N. Y. 110, it was
held that if a married woman dies without disposing of her separate personal,
estate by deed or will, it vesta in her husband, unaffected by the grant of
administration to a third party, the ads of 1648, 1849, only apply to pro-
perty disposed of by her during lifetime or by will. Under the aetMof 1848,
1849, she may lend money, hold securities, and sue thereon and she will
therefore be liable for money paid as usurious interest Porter v. Mount, 41
Barb. 561, but see 8. C. Id. 422. Under the acU e/1848, 1849. if a lease is
granted to husband and wife, jointly, the rent cannot be enforced against



by Google


h«r, and fheir interest may be liable to the hosband's debts. Goelet «. Gori,'

31 Barb. 314.

The question as to whether the hnsband is entitled as tenant by the cour-
tesy nnder the Viete o/ 1848^1849, has been much doubted. In Billings v.
Baken 28 Barb. .^3, it was held he was not so entitled. The contrary
opinion will be found in Hurd v. Cass, 9 Barb. 366; Clarki?. Clark, 24 Barb.
581; Valence v. Vausch, 28 Barb. 6%3.

Under Laws of 1858, ch. 187, J 1, amended by lAtwa of 1870, cA. 277, and
L. 1873, ck, 821, the wife may insure her husband's life with his assent^
and these acts contain provisions as to the surrender and bequest, &c., of the

Under Laws of 1849, ch, 373, sec, 3, contracts made in contemplation of
marriage are to remain in AiU force notwithstanding marriage. See hereon

32 Barb. 251; 54 N. Y. 437.

Under the Latos of 1862, ch. 172, the wife has power to consent to appren-
ticing her child, or to appointing a testamentary guardian therefor by the
father. See further hereon Bee. Staf, New York, vol, 3, jp. 2346, 7^ ed.^ TU.
3, see. 1, whereby the father has power to appoint » guardian by deed or will,
and in case of his neglect his widow may do so. See Laws 1871, ch. 32.

T/ie Laws of 1887, p. 667, eh. 537, authorize arid make valid future convey-
ances from husband to wife and vice versa without the intervention of any
trustee. See hereon Barrows r. Keene, 4 New £ng. Rep. 271; Sawaon «.
Pennsylvania R. R. Co., 48 N. Y. 212; Seymour v. Fellows, 77 N. Y. 17a

It has been held that the statutes do not give the xnfe any right to con-
tract with her hu.sband unless such contract directly affect her separate es-
tate. In re Renter, 5 Dem. 102.

It has also been held that husband and wife may become liable as partners to
third parties, but it is still a question of doubt whether they would be liable
as partners interne. Noel v. Kinney, 106 N. Y. 74; S. C. 19 Abb. N. C.
235; and it is still doubtflil whether they can carry on business as partners.
Suan r. Caffe, 4 N. Y. St. Rep. 470.

In Pennsylvania, — By the Laws oj 1848, 536, J 6, as amended and applied
by Laios of 1853, § 20, and Lam of 1856, 315, J 1, property of every descrip-
tion owned by a married woman before marriage, and all property of what*
ever kind accruing to her after marriage by will, descent, or otherwise shall
be used, owned, and enjoyed by her as her separate property, free from her
husband's debts, and upon any conveyance, mortgage or transfer her hus-
band must join. It is liable for debts contracted by her, or in her name by
any person authorized to contract on her behalf, and also to be taken in exe.
eution on a judgment recovered against her husband for her torts; but the
husband is not liable for the wife's debts contracted dum sofa. The effect of
the above acts is to treat property, acquired as therein stated, as though it
^ere settled to her separate use. Bear*s Admor. v. Bear, 33 Pa. 525; Pettit
V. Fritz. Exor. Id. 118; Wright v. Brown, 44 Jd, 224; Pennsylvania Co. v.
Foster, 35 Id. 134. Property paid for by her earnings or savings is not her
separate estate, and her hnsband is absolutely entitled thereto. Ray bold v.
Raybold, 20 Pa. 308: but see hereon later slattUes, infra. She has no power
to carry on business separate from her husband in her own name while co-



by Google


hfibUiog wtth-liim, m afi^ainst his creditors, even though th^ money be lent
her jfor the parpose, and her husband is entitled to the profits. Hallowell r.
Korter, 35 Pa. 375. See, however, hereon, recent idatutes, infra. The act of
1848 gives her no power to convey except her husband joins in the deed, and
the iorm of ^cicnowleilgenient is iis )>efoie the act. Thorndell r. Morrison,
25 Pa. 326; Haines r. Ellis, 24 Pa. 253. She cannot release dower by a sefia-
rate deed. Ulp ?*. Campbell, 19 Pa. 361. She uiay bind her separate pro-
perty to pay her husband's debts. Magaw r. Stevenson, 1 Grant Ca. 402;
Ly tie's A pp.. 36 Pa. 131. She has no new power under the act of 1848 to
contract debts with the right of being sue<l therefur. Glyde r. Keistler, 32
Pa. 85. In order to render her separate estate liable for debts contracted in
its improvement, it must be shown that the money, 4&c., was actnally used
thereon. Mahon r. Gormley. 24 Pa. 8C); Murray r. Keyes, li3 Pa. 384.

Under Lawn of 1848, 536, 2 7, she may dispose of her separate estate by
will execqted in the presence of, and attested by, two witnesses. In Van
Wert r. Benedict, 1 Barb. 114, it was held that her pow^er to devise by will
extends to property acquired 1>efore the acts, and is general.

.Under the Laic8 of 1850, p. 560. ^11, she has power to apply to the court
of common pleas for the appointment of a trustee of her property, and make
a declaration.of trust in favor of her children. As to whether this provision
enables her to appoint a trustee where the pniperty was held by her prior to
the act of 1848, excluding her husband, see Burton's .App., 22 Pa. 164, where
it was held it did not.

Under the Latos of 1850, p. 569, i 39, actions affecting her pro))erty secured
to her under the act of 1848, may be brought in the names of herself and
husband for her use, and any judgment obtained will be for her benefit.
Her husband must be joined. Kennedy v. Good, 21 Pa. 349, and see the later
and more decisive case of Ritter r. Ritter, 31 Pa. 396.

Under the act of 1848, where debts have been contracted for necessaries for
the support of the family of any married woman, the creditor may sue hus-
band and wife, an(f issue execution against the husband alone; and in case
there shall be no effects, the officer sliall return nuiia bona, and then a writ
may issue against and be levied upon the separate estate of the wife secured
to. her under the Isi section of the act, but the debt must have been contracted
by the wife, or incurred for necessaries for the support of the family.

It has 1)een held that this act is not retrospective, and therefore does not
apply when the goods are supplied prior to its passing. Headliug v. Cttling,
1 Phila. R. 39. And the goods must be actually necessary. Parke r.
Kleber, 37 Pa. 251; S. C. Pittsburgh Leg. Jur. 170. And it must be proved
to be the actual contract of the wife. Murray v. Keyes, 35 Pa. 384; Parke
r. Kleber, uhi nnpra.

Under Iho act o/1851, 669, | 22, a married woman may lend money to her
husband and take a security therefor in a trustee's name.

Under section 10 of the act o/1848, her real estate is to descend according
to the intestate laws of the state, but the husliand is not to be deprived of
his estate by the curtesy. And under sec. 20 of the act of 1850, the hus-
band's estate by the curtesy cannot be taken in execution during his iviie's
life, and see the act of April lat, 1863, J 1, R L. 212.


by Google


Under section 1 of act of 13 Jane, 1878, a married woman nuiy be sueti
alone in cases where ohe has l)een deaerted by, or separated from her hns*
band, and he cioes not reside in the same i*ouuty, where the debt is for uec'
easariea for her support, or in respect of ijnprovements upon her separate es-
tate, but the desertion most Ije ior a year or more. And by neciion "2 of the
act of 1879 (11 June) the wife nuder similar eircumstauces may sue without a
trustee or next friend.

Under the Ad o/ .Very, 1855, nee. 2, if the husband being a drunkard, or
from profligacy or other cause, neglects- or refuses to provide for or deserts
liis wife, she has the {K>wer of a/pi/i« aole^ and in case of her decease intestate
her property goes to her next of kin as if her husband had pre-deceased her.
And under w?f. :{ she has the full parental power over her children, under the
like circumstances. And under nee. 4 she may for the like reasons petition
the court and be decreed ixfeme note as therein provided. And under nee. 5 a
husband deserting his wife for one year or more shall forfeit all rights and
claims to her estate, both as tenant by the curtesy, and under the intestate
laws, and further under J G the right to appoint a testamentary guardian.

By act llth April, 1856, i 1 (P. L. 31«), all deeds or mortgages of married
women theretofore acknowledged jointly with their husbands, so as to bar
her right to dower, &c., are to be efiectnal to debar her in respect to her own
real estate. This section repeals act of llth April, 1848. See the section
further as to the acknowledgment of deeds which may be tafcen before an
alderman, jastice of the peace, notaiy public or other officer authorized.

Under section 3 she may, when deserted by her husband, or he has sepa-
rated himself from, neglected or refased to support her, or divorced a
mensa et thoro^ bring an action for libel or slander or to recover her separate
earnings or property.

By the act of ^ April, 1863, J 1, P. Z,. 533, the powers of married women
over their separate estates [are enlarged; except in cases where she is re-
strained by will or other instrument.

Under act of June 2nd, 1871, section 1, she may sell and transfer stock
of any railroad company, and further, under act 18 March, 1875, ? 1, P.
L. 24, she may sell and transfer stock in any corporation created by or
under the laws of the commonwealth. Underact of February 29M, 1872, § 1,
she may purchase sewing machines for her own use without her husband.
Under act of April 3rd, 1872, J I, the separate earnings of a married woman,
however acquired, are her separate property, independently of her husband
or of his creditors, but under section 2, she must present a petition to the
court claiming the benefit of the act, and comply with its requirements.

By Act passed 3 June, 1887 (P. L 332), section 1, it is provided that mar-
riage shall not incapacitate a married woman, with respect to the requisition,
ownership, possession, control use or disposition of property of any kind in
any trade or business in which she may engage, or for necessaries, and for
the use, enjoyment, and improvement of her separate estate, real and per-
sonal, or her right and power to make contracts of any kind, and to give obli-
gations binding herself therefor; but she shall have the same right to acquire,
hold, possess, improve, control, use or dispose of her property, real and per-
sonal, in possession or expectancy, as if a feme 9o/f, without a trustee, with


by Google


the rights said liliertieB imddent thereto as if not married; and property of
"every kiml oxvned 4»y lier lM)fore«or during oovertore is her own as agjunst
her fansbaDd and Jiis^CFeditors. Bert her husband must join in every morV
gage or conveyance. By tiection 2, she may enter into contracts relating to
her trade, or for necessaries, or for the iise or improvement of her seponte
estate, and sne and be sued thereon, and for all torts, as if a feme w/e, with-
out joining her husband as plaintiff or defendant. And all property recovered
by hor, and all damages, costs, 4%c., recovered against her, are to belong to
•or affect her separate estate. She cannot however become an acoommodatioD
Acceptor^ eudoTser, gaarantor, or surety for another. By secHan 3, sbe may
make leases of her property, transfer and sell her personal estate, and ap-
point an attorney with her husband. Bjf section 4, husbands and wifes have
the same civil rights over their separate property as unmarried persons. By
necUon 5, she may make a will disposing of her real and personal property aa
if unmarried.

Property may be settled npon a married woman by her husband witlioat
the intervention of a trustee, provided the husband is solvent at the time,
and the object is not to escape futire creditors. Townsend v. Maynard, 3
Am. Law Reg. 572, S. C. 45 Pa. 198.

The ad, of 1863 has been held constitutional. Shonk v. Brown, 11 P. F.
Bmith, 320; Gl Penn. St. 321, and the deed cannot be enacted valid if the
wife had no power to convey. See, also, Wright v. Brown, 8 Wright, 238.

'The sale of a wife's lands under an execution for her husband's debt will
be restrained by injunction. Allen r. Benners, 10 Phila. 10.

A husband is still liable nnder the ad of 1848 for his wife's torts, Quick r.
Miller, 7 Onterbridge, 67, and a married woman is still, notwithstanding
sect. 2 of the act of 1887, privileged from arrest under a capias, Whalen i*.
Gabell, 20 W. N. C. 274.

In MasaachnaeUti. — Under Latn of 1845, eh. 208, a married woman having
property secured to her, or conveyed, devised or bequeathed to her as tlierein
provided has the same rights powets and remedies at law and in equity,
and may sue and be sued in contract or tort respecting such property, or in
respect of any contract or tort made or committed before marriage as if a
feme sole. If she dies intestate all ]>ersonal estate held to her separate use
vests in her husband, unless otherwise provided by the instrument under
which she holds. And he is also entitled as tenant by the curtesy as if the
act had not been passed. A conveyance of separate estate by a married
woman without her husband under this act has been held yalid subject to
her husband's curtesy. Beal v. Warren, 2 Gray, 447. - It has also been held
nnder this act, that if property is conveyed to a married woman without
words expressing it to be for her sole and separate use she cannot convey it
without her husband concurs and equity will not reform the deed. Jewettv.
Davis, 10 Allen, 68; Gerrish v. Mason, 4 Gray, 432. See, however, Perkins r.
Richardson, 1 1 Allen, 538. And as to property acquired under later statutes.
Baker r. Hathaway, 5 Allen, 103; Townsley t>. Chapin, 12 Id. 476.

Under General Statutes of 1860, eA. 108, {{ 1 and 2. The property of a
married woman both real and personal owned by her as her sole and sepa-
rate estate, coming to her by descent, devise, beqnest, gift or grant, acquired


by Google


by her throagh trade, labor or services, carried on by her' on her sole and
separate aocoant, or received by her in lieu of dower; or owned by her prior
to marriage, and the rents, issaes and profits thereof are her sole and separate
property and may be nsed, collected, or invested by her in her own name,
free from theoontrol or interference of her husband and his debts. She may,
with her husband's concurrence, convey i-eal estate, not her separate property,
as she might do by separate deed before marriage, but her covenants do not
bind her. By aeciiatt 3, she may convey her separate real and personal
estate, enter into contracts respecting it; engage in trade or business, and
perform labor and services on her separate account, sue and be sued in re-
spect thereof as if a feme sole. But her husband must either concur in the
deed or give his consent in writing, except a lease for a term not exceeding
one year, and a release of dower executed subsequently to the conveyance of
the estate' of her husband. In case her husband is sick, insane, or absent
from the state, or on good cause shown, she may petition the court, and ob-
tain the consent of the judges of either the supreme, judicial, superior, or
probate courts, but if the husband is within the state he must have notice of
the application. She may petition the court to appoint trustees to hold her
separate estate in trust for her. The contracts made respecting her separate
estate are not to bind her husband, and her separate estate is alone liable
thereon. Her receipts for all moneys paid to her from or out of her separate
estate are good discharges -withont her husband. Keal estate and shores in
corporations, standing in her name before marriage, or which become hers
by descent, &c., are free from the husband's debts contracted since 3rd June
I800. See sections 4, 5, 6, 7. She may be sued for her contracts, &c., made
befoie marriage, and her separate estate is liable as if she were a feme sole.
If married subsequent to June 3rd, 1855, her husband cannot be sued for her
debts contracted previous to marriage. She has also power to make a will
but cannot deprive her husband of less than one-half of her separate estate
without his consent, but these provisions cannot affect any marriage settle-
ment or contract, nor the husband's rights as tenant by the curtesy unless
with his consent. See BccUons 8—12. Under statute 19 May, 1887, c. 290', p,
920, the right of a married woman to< dispose of separate estate by will is
limited to $5000 worth, where no issue survive.

By sections 29 and 30 the act 0/ 1860 is extended to parties marrying out
of the state, and to wives coming into that state fh>m others without their
husbands in cases where their husbands never resided within the state.
*. Under section 3 a conveyance without the consent of the husband is void,
and cannot be reformed after the husband's death as against the wife, even
though the husband gave his oral consent. Townsley v. Chapin, 12 Allen,
476. As to what is sufficient evidence of assent under the act of i860, see
Hills V, Bearse, 9 Allen, 403. If she render services to a firm of which her
husband is a partner she cannot i-ecover as against the firm, as she cannot make
a contract with him, or with others jointly with him. Edwards p. Stevens,
3 Allen, 315. She cannot be made liable as a partner with her husband,
or his firm, even on a promissory note Lord v. Parker, 3 Allen, 127. But
if her husband is not a partner she may enter into partnership with any firm
and will be liable. Flnmer v. Lord, 5 Allen, 460.



by Google


In order to entitle tx married woman to carry on trade or bnsineas on her
separate accoant she must, under the Laws of 1862, th. 1U8, file a certificate
iu tlie clerk's office of the city or town where she does, or proposes to, trade,
<Sti'., ns therein provided, or she cannot claim as against her husband's cred-
itors. It has l)een held that this statute applies to furniture >n a boarding
house carried on by a married woman. Chapman r. Briggs, 10 Allen, i>46.

The Hfatutes of 1845, ch, 20B, §J 1, 2, 3; of IHoS, ch. 304, ? 1; «/ 1857, c. 249,
$ 1, all relate to the powers of married women to bind themselves by con-
tract. Under the net of 1855 it has l>een held that if she, while living with
her husband, keep boaitlers on her own acoonnt and purchases good2i for such
business on her sole credit, she is liable for same, and her acts are evidence
against her, but she cannot where credit was in the first instance given to
her husliand, be sued upon her promissory note. Parker r. Symonds. 1 AJ^cu,
'258. In Parker r. Kane, 1 Allen, 346. it was held that* she was liable upon
a note given by her jointly with her husband for lumber, &c., sold and de-
livered, and used upon her separate estate and on all repewals thereof. In
Rogers v. Ward, 8 Allen, 387, it was held that, under certain circumstances, a
bill will lie in equity as against her separate estate for payment oi a bond given
by her for the price of land conveyed to her sole and separate estate. Iu Cram
r. Kelly, 7 Allen, 250, it was held that under the act of 1857, c. 249, she is not
liable for goods to be used upon premises held by her under a deed contain-
ing no provision for its being her sole and separate property or freed from
her husband's debts and control when such goods are purchased and deliv>
ered prior to the act'.

In Spauding r. Day. 10 Allen, 96, it was held that personal property pur-
chased by her out of her own means becomes her .separate estate, although the
conveyance does not expressly state it to be held as such, and is therefore
free from the husband's debts.

See, further, Jiev. Stat, 1882, ch, 147, j>. 819, under which she has power to
make contracts as a feme sole. All work and labor done by them are to be
their own property. She may be an executrix, and bind herself and the es-
tate without her husband's assent. Husband and wife cannot convey to each
other. Husband is not liable for the wife's debts dum tola.

Under acts of 1874, 1878, 1880, 1881, the court has power to make orders
for the support, &c., of wives deserted by their husbands.

In l'<ynnont. — Under statutes of 1850, j?. 401, J 15, the rents, issues and profits
of the real estate of any married woman, and the interest of her husband in
her right, in any real estate, that belonged to her before marriage, or ac-
quired by her by gift, grant, devise or inheritance during coverture, are ex-
empt from sale for her huslumd's debts, and no conveyance of the same is '
valid unless her husband joins. They may devise real estate and their in-
terest therein which would descend to their heirs. In Sumner v. Conant, 10
Vt. 20, it was held that she must convey by deed of herself and baron, upon
separate examination and acknowledgement to be certified upon the deed.

Under statute of 1860, ch. 71, she may insure her husband's lite for her
own use and benefit and the policy will inure for the benefit of herself and
children. Under Oeneral Statute of 1863, c. 68, the homestead upon the hus



by Google


bfind's decease is exempt from the husband's creditors for the benefit of the
wido%v and children.

See laws of this state tor more recent stfitutes.

In Connecticuf. ^VniXer R. SUU. of 1875, foV. 18, ch. 6, } 10, the husband mnst
join in the conveyance of her lands. It has been held that under this stat.
a deed may be valid in part and void in part. Hyde v, Morgan, 14 Conn.
104. Under the Revised Statutes of 1875, title 14, ch. 2, all real estate con-
veyed to a married woman paid for out of her own means or by her own
earnings is hers for her sole and separate use, and the proceeds of real estate
are in eqttity her own, and exehipt from her husband's debts. Personal
property coming to the husband in right of his wife, or through her as the
meritorious cause is to be held by him as trustee for her use, except in so far
as he has paid any of her ante-nuptial debts; he may as such trustee be
called upon to find bonds, and may, upon good cause shown, be removed.
His creditors, during the life of the wife and children, have no claim upon
his interest in her real estate. Money earned by her own industry, and
money paid to her by any person or corporation with whom she may have
deposited or loaned it are her own property, and her receipts are a good dis-
charge- for the same. And money and property acquired by her during
(roverture by her personal services are to be held to her sole and separate use.

Money due her for personal services is protected as if actually received.
Whiting «. Beckwith/31 Conn. 596; Sherwood v. Sherwood, 32 Id. 1. Under
Rev. Slat. 1875, tit. 19, ch. 5, 2 9« they may be sued in contract or tort and
then property is liable on execution as if unmarried. Under section 10 they
may be jointly sued upon any contract entered into jointly for the benefit of
her separate estate. Under section 11 she may sue alone in respect of actions
accruing through her separate trade.

See laws of this .state for further enactments.

In New Hampshire.— Under the Act of 1846, ch. 327, H 12, 17, property may
be given to her without the intervention of a trustee; and upon her decease
intestate, her husband upon taking out letters of administration takes her
property and holds it (except in so far as he is tenant by the curtesy) sub-
ject to her debts. In Bailey v. Pearson, 29 N. H. 77, it was held "that the
liability must be in respect of contracts made with regard to her separate
pn)perty, and the tort committed by her must be in connection with such
property and in respect of contracts made and torts committed dum sola.

Under tlie Laws of 1854, ch. 1522 <& of 1860, ch. 2342, J 3, she has power to

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 107 of 108)