CH. 19. good to him ab initio, and the promise being made to her, Art. 22. they may join in the action. Abr. 139. § 7. A bond given to husband and wife during the cover2 Eq. Cases ture, the right of the bond is in them both, and if the husband dies without any disagreement to her right in it, the bond shall survive to her, but the husband may disagree to her right to the bond, and bring an action on it in his own name. 7 Mass. R. 95. 3 Atk. 207, 417. § 8. The husband's release of damages for abuse to his wife is valid, and a bar to his and her action. 9. Though he may dissent to her purchase of real estate, that may make him tenant to his disadvantage, he cannot dissent to her estate by descent. ART. 22. Certain material principles resulting from the above and other cases. 1. The husband is sued with his wife for her debts contracted, and her torts committed dum sola, because she remains the debtor, and if not paid, she is liable if she survive him; or if she die first, her representative in the cases of contracts. 2. Because by the marriage she loses all the means of payment, as he has her personal property in possession absolutely, the usufruct of her real estate during the marriage, a right to all her earnings, and to recover to his use her choses in action whenever he pleases. 3. She can in no civil case be imprisoned but with him; because it would be most unreasonable to have her in prison alone, till she should pay, when the law has thus deprived her of the means of payment, and to remain till her husband should see fit to pay, who in some cases might never see fit to pay; but when he is imprisoned with her, he will pay the debt to gain his own liberty, and with it hers. Hence, if he escapes, she must be discharged after a reasonable time to re-take him, and if she be arrested, and he is not, she shall be discharged after a reasonable time to take him. And in order he be imprisoned with her, he must be sued with her for her debts and torts. For such both may be arrested. If he be bailed, she shall be discharged on common bail in England, and here where it is known; where not, she is discharged. If he be imprisoned she may be with him, except she finds, substantial bail. So on execution. 4. When is she barred her survivorship? The husband may clearly reduce, during the coverture, all her choses to his use, or he may assign them and bar her. But it is said to bar her surviving of a chose in action, his assignment of it must be for a valuable consideration; but quære, for why 3 P. W. 196. should he be held to receive to him a quid pro quo in disposing of a thing over which the law gives him an absolute power? And it is held, if he voluntarily assign the trust of a term that -2 Vern. 407.-2 Ves. 675. CH. 19. belongs to her, without consideration, she is barred of her right of survivorship; but if he voluntarily assign, and without Art. 22. consideration, her chose in action, or equitable interest, not 108. Salk. 281. Ves. 87. the trust of a term, it does not bar her survivorship; but Pr. in Ch. quære, as to the consideration. See 1 P. W. 378. He may 419-9 Mod. assign a mere possibility in a chose in action, and her right of survivorship is barred. So her right and obligation of survi- 1 P. W. 249, vorship is forever gone, as to debts due to, and from her, by 453-3 Ves. the bankruptcy of her husband, even if the coverture end 617, but before they be reduced to possession &c., and on the princi- 9 ple that his bankruptcy and the assignment &c. is a disposition in the eye of the law. Though she will be barred of her right of survivorship to her choses, by legal assignment made of them by her husband; yet many cases may exist, in which, in equity, he will be held liable to make provision for her. These cases are so numerous and complicated, and of so little use in the United States, that there is not room or reason here for stating them; but monies in the hands of her trustee, is as money collected in her hands, and not a chose in action. Hob. 8. Plow. 363. 5. It is one of the marital rights, that the wife's chattels Reeve's D. real survive to her husband absolutely, on her death, and this R. 22. on the principles of the common law; whereas, her choses not collected, go to her executor or administrator in such case; nor are these chattels real in his hands so surviving, liable for 1 Rol. 345.— his debts, and if he mortgage her term and survive her, the right of redemption is his, by the jus accrescendi, in those States wherein this and joint tenancy are allowed, according to some; but according to others, he cannot be joint tenant with her of her chattels real she has before marriage, as their titles do not commence at the same time, nor from the same act of the parties &c. He can make a lease of her chattels real, to commence even after his death for a valuable consideration, but he cannot devise them away by will. 6. If a feme sole have a term for years, and is dispossessed Co. L. 351.— of it and marries, her husband never has possession, and 1 Atk. 92. she dies, her administrator has it, as he has her choses in action; her possibility in such term does not vest in him, or survive to him. 157.-2 P. 27.-Reeve's D. R. 52, 53, $7. If the wife do not join with her husband in a mortgage Pre. in Chan> of his estate, her dower is no way affected by it. If she joins, w. 252.she has a right to redeem paying the debt. So where he 1 Cha. Ca. mortgages his estate before the marriage, she has this right, and in both cases she pays one third, and his heir or devisee two thirds; and when she redeems, she holds the mortgaged premises till repaid the two thirds and interest, if more than the usufruct in the mean time. If her jointure be mortgaged, CH. 19. Art. 22. she may abandon it and claim her dower, or she may redeem, and shall hold till the mortgage money is paid to her or her executor. In England the widow cannot be endowed of an equity of redemption, but there may be a tenancy by the courtesy of it, and so dower of it in Connecticut. And it is conceived there is both dower and courtesy of it in Massachusetts, where the widow will pay a third of the debt; but the mortgagee's wife has no dower in the mortgaged premises, viewed as personal estate, except the mortgagee has title to get possession to enforce payment of his debt. If lands be devised for the payment of debts, she has dower after the debts are paid, but not of an estate in trust. 8. The wife's power to convey her estate. How far she has a power to convey her estate is often a question. In England, there is no doubt but that she can do it by fine or recovery, because she is examined, if under the influence of her husband; but clearly nothing in these conveyances proves any defect of understanding in the contemplation of law, but they proceed on the principle she has a mind competent to convey; and the only question is, if she be unduly influenced by her husband; so it has been seen and admitted on all hands, she has discretion and capacity to convey any estate under a mere power given to her; so to contract when separated from her husband; so to be guardian, executor, or administrator. Where she cannot endorse a note made to herself. 1 East 432, Bar low v. Bishop. And according to this case, Barlow v. Bishop, if A give a note to B's wife, intending it shall be her property, the property immediately vests in her husband, on the delivery of the note to her, though she is trading by herself by his consent; and see 8 Ves. jr. 599. And Mr. Hargrave, an eminent lawyer, is of opinion a wife may, without her husband, execute a naked authority, where given before or after marriage: so when lands are vested in her to convey, on a condition, she may convey, and his reason is, her husband cannot be prejudiced by her acts, and to require his consent would be often inconvenient. So if the legal title of land be in her, as trustee, she can convey it to the cestui que trust, without her husband. So by American law, in Massachusetts and Connecticut, if not in all the States, a wife by joining with him may clearly convey any estate she has; and he conveys only his own right, a life interest &c.; and she conveys her estate, the inheritance; this unquestionably implies she is of a capacity to do it; the maxim she has no existence during the coverture, and no will, has no foundation; for if so, she could not execute a naked power. By our law, she is bound by her conveyance, whenever she joins with her husband, and the only questions are, when may she confirm or disaffirm a conveyance of her interest by him, with- CH. 19. Art. 22. case. By the custom of a London, a wife can convey her land by Hob. 220, deed enrolled, but is examined by a magistrate, but clearly 231, Noedle's this examination does not give her the legal ability to do it, this the law must give, and the examination is only to ascertain if she acts freely. 9. Her power to devise. Some deny she, at common law, has a capacity to devise her estate, merely because she is a married woman. Others hold, she can, by that law, devise the property she possesses as well as any other person, if in so doing she infringes no rights of her husband. 1. On principle, a woman has a capacity to devise before marriage, and by it none contend her understanding is impaired, or her prudence diminished. Enough has been said in this Chapter, to shew the notion a wife has no will, is a mere fiction, almost without foundation in fact. She is, in no sense, an idiot, or non compos; nor does the criminal law view her as one, in any case; and we have seen already, in scores of cases, even the laws of property view her as able to convey or devise, and even alone, where her husband has no interest affected thereby, as where she executes a power as trustee, has separate property, and is separated by judicial sentence, or has a husband excluded her country. As to the coercion of her husband, it goes only to the practice and expediency, in certain cases, not to the principle; coercion may, too, equally affect her conveyances by deed with him, yet this our law unquestionably allows; why is he joined in this her conveyance, to be her guardian in it, surely not in the opinion of those who hold he will use his coercive power to her disadvantage; the truth is, he is joined to convey his own interest, the law gives him in her estate; a husband disposed to wrong his wife, may as well coerce her to convey with him her estate to his friend or appointee, who will convey it to him, as coerce her to de CH. 19. Cro. Car. 219, 376, Mariot r. Kinsman. 66 vise to her disadvantage, or that of her heirs; and the wife who is firm enough not to convey but for her and their interest, will be firm enough not to devise but for her and their interest. She may be influenced to convey by deed when sick and weak, as well as to devise; but sick bed infirmities all are liable to. As to her examination in the case of a fine, or a recovery, on principle and in experience, it has been less than a shadow of security;" the wife who has agreed to yield to her husband's influence, will always tell the court she is willing, and ages of experience have shown that this examination is of less worth than mere form. And why, by law, should she be obliged to let her estate descend to heirs, by no means the objects of her choice, for want of a power to devise? often heirs distant, remote, or other relations, who have invariably treated her ill, and unkindly, if not abusively. 2. On authorities. According to the weight of these, at common law, she can devise her property alone and without her husband, in which he has no interest whatever. She can clearly devise or bequeath her personal property by his con sent. Her husband bound himself to permit her to make a will, and give legacies, not above £50, and he would perform, and he married her. Plea, she did not make a will; replication, she did; and issue, and found she made a will, and gave legacies, not above £50, but was covert. Held, a good will in the nature of an appointment, and he was bound to perform it, though not strictly a will, being made by the wife, but a 376, Tulley writing in the nature of a will. And some years after, there was à like case so decided. Cro. Car. v. Pierce. 111, 307. Bracton and Granville held a wife could not devise. Why? Because she could not dispose of her husband's goods, without his consent. But according to them, and other ancient writers, she could, with his consent. She could not bequeath, they said, but the reason they gave was, because she could not bequeath his goods; this implied she might her own. Reeve's His. Bracton stated, it was usual for her to devise her dress, and ornaments, properly, he said, her own property; that is, her paraphernalia, and without her husband's consent. She also had by her endowment ad ostium ecclesia, certain personal goods absolutely her own, in lieu of dower. He never could claim it, and she could devise it, because it was her own. So Bracton held. Archbishop Stafford held the same, that is, that married women had distinct property in some things, and these they could devise independently of their husbands. And the able civilian Lyndwood, held the same principle. As to real property, none could devise it before the statute of H. VIII, and besides that wives had very little property of their own; but if 3 Reeve's His.-1 Ver. 709.-1 P. W. 126.-2 Ves. 75, 190, 610. |