marriage, by gift or descent. And so I think are a legacy and a distributory share hers in the same manner, whether they come to her before or during the marriage. Certain it is they must first vest in her, though coming to her during the marriage; the distributory share is and must be assigned to her; the statute assigns it to her, not to her husband, and in finding to whom it belongs, her degree of kindred is computed, not his, and the legacy is bequeathed to her and not to him; she is the meritorious cause, and her husband derives it when he collects it from her, and not from the intestate or testator. Now as this legacy or share, coming to her during the mar riage, vests in her, in the first instance, as one does coming to her before marriage, and the last remains hers till he collects it, and so shews his intention to take it from her, and make it his own; so on every sound principle, the first remains in her till so collected. This is according to the intent of the law and of the giver. In giving her the legacy he means her benefit clearly, and not her husband's; for if meant for his benefit it would have been given to him directly, and not to her. And when the law gives my wife a share in her father's estate, it surely means her benefit and not mine. I may wish not to take it from her, but if the law absolutely makes it mine, even against my will, as some contend, I never can let her have the benefit of it, if she shall survive me, by omitting to collect it; for if absolutely mine it will go to my executor or administrator, though I omit to collect it, though she survives and I intend she shall have it. It is agreed even in England, that if the wife be beaten or defamed, the damages to be recovered for the wrong belong to her, and survive to her if not collected during the marriage. And it is a very reasonable rule of law, that the husband wishing it may leave to his wife a legacy or distributory share, coming to her during the coverture by gift or descent, without lessening in the least degree the husband's estate or his ability to pay his debts. And in this case he alone is entitled to an action per quod &c. to recover damages for the loss of her society and services. And so damages for carrying or enticing her away from him; and so for criminal connections with her, except when they live apart by proper articles of separation, or except where he permits it. Cн. 19. Art. 2. 1991. $ 10. His power over her person. The better opinion now 3 Burr. 1622. is, that the husband has no power to correct his wife as he 4 Burr. may his servant or child, though anciently the opinion was Haw. 136.— different, and the practice in many cases is continued. No 2 Lev. 128.law is recollected that recognises this power. If now a hus- 8 Mod. 22, band strike his wife in anger, and not in self-defence, or to Rex v. Lister. restrain her when she is insane, it is, according to the better-1 Burr. 542. Mead's case. opinion, an act of cruelty and cause of separation a mensa et and Stra.478. CH. 19. Stra. 1207, 4 Burr. 1991. Cro. Car. 370.-Lev. 122.-Reeve's thoro, or for binding him to his good behaviour. The husband may use force enough to restrain his wife when insane, and so may the wife her insane husband. There is however one difference; if she elope and go away from him without cause, he may legally seize her person and bring her home, using no more force than is necessary to cause her to return to his house; but he cannot do this after they have agreed to live separate. But the wife has no such power in regard to her husband. He may swear the peace against her, as well as she against him. In Rex v. Lister the court held, that where a wife abuses. her liberty, by squandering away her husband's estate, or going into bad company, he, to preserve his honour and estate, may lay her under restraint; but where nothing of this kind appears, he cannot justify depriving her of her liberty. The court will not deliver a wife to her husband who has used her ill. Not separated for his hard usage, but he is bound to his good behaviour. 3 Salk, 189. 11. Her torts, and injuries to her. He alone is answerable for his wife's torts, committed by his orders, or in his D. R. 72, 79. company, and they die with him; these are his torts, and not hers. She is excused on the ground of his presumed coercion. But if the tort be committed by her alone, not in his company, or by his request or command, expressed or implied, both are liable to be sued: it is her tort, and if she survive she may be sued alone for it. If a feme covert take up goods, affirming she is a feme sole, and they come to her husband's use, he is liable on his implied promise, but if they come not to his use, he is liable for her fraud, as for any other tort committed by her, to which he was not privy; both must be sued. So if she cheat one out of his property, her husband is liable; for her offence which is only finable, both are liable; but when punished corporally, she only is liable to punishment, when not committed in his company, or by his command. If she be liable to a statute penalty, both must be sued, or informed against. She is not punishable for crimes she commits with him, or in his company, or by his coercion, if only mala prohibita, or against property, though even burglary. So if he only approves of her act or encourages it. But his presence or command does not excuse her in treason, or in keeping a brothel, nor as to offences purely mala in se, as murder &c., and generally he may shew her act was done against his will. See Civil Subjection, Ch. 197, a. 6. As to torts committed against her, as assaults and batteries on her person, defrauding and cheating her, they are injuries to her, as before observed, but he may make the damages, occasioned by them, his own when he pleases, by bringing his action for them in his and her name, recovering damages, and these, when collected, will be his; as well as those he may recover in his own action for his loss of her society and services; and this is all reasonable, as he must pay damages for the torts and wrongs committed by her, as well as for her cheating and frauds But if he do not recover the damages thus accruing to her, for the wrongs thus done to her, they are hers, and may survive, and she may sue alone for them if she survive him, and he has not collected them, and if she die first they die with her. CH. 19. Art. 2. Where they ought to join, or not, in actions, and on what principles, see American Precedents, and Declarations post, Ch. 175, a. 2. These are the principal grounds of his rights to her property, real and personal, in possession and in action, in debt and damages. As to his power over her annuity during marriage, see Annuity Ch. 140, a. 17. But it has been held in New York, he is entitled to all her choses in action, if he survive her, reduced into his possession in her life time or not; because it seems the right to administer her estate vests 6 Johns. R. in him on the statute, to recover her personal estate to his own 112, 120. use; this is English and Massachusetts law. See Nurse v. Ray, Ch. 19, a. 3, s. 5. 12. His rights in her mortgages. The wife joins with her husband in mortgaging her estate of inheritance, (in the United States by deed, in England by fine,) and the money is not paid at the day, and he takes up more money on her estate thus mortgaged, it is held, in England, for his after loan, for the legal estate is in the mortgagee by the forfeiture, and equity will not take land from the mortgagee till the last sum borrowed is paid, as well as the first, as he has the legal title, and equal equity with the wife. This may be law and equity in those States which have adopted English principles, in cases of mortgages; and by our law in Massachusetts, she may mortgage her estate &c., for her husband's debts, but it is bound no further than the deed extends. Indeed here if the husband borrow $1000 of A, and give a mortgage to A, as security, and then borrow another $1000 of A, merely on his note, the mortgage holds but for the first $1000. See Mortgages Ch. 112, the reasons. If a mortgage of lands be made to a feme in fee, dum sola, or married, to secure a debt due to her, it is her husband's during the coverture, as the debt is; if during it, he collects the debt, it is his, and the mortgaged land is discharged; but if he do not so collect it, and dies, it survives to her; or if she dies first, it goes with the debt to her administrator; but if the mortgage title becomes absolute, it must follow the deed to her, and vest absolutely in her, and her heirs; and if during the marriage her husband has the usufruct of her estate in fee, and if he CH. 19. New, on 116 &c. 3 Bro. C. C. 340, Pybus v. Smith. Fettiplace v. survive he may be tenant by the courtesy &c.; but if the title becomes absolute, after the coverture is at an end, he has no interest in this absolute estate in fee. If the husband takes a mortgage of land to himself and wife, it is a joint interest, and if she survives she has it, by the jus accrescendi, where joint tenancy exists, and where not, she has it as a gift from him, as he sees fit to vest a legal title in her, by taking the deed or conveyance to both; his lending the money alters not the case. However her right must yield to the just claims of his creditors, where the debt is truly his. A mortgage, though in fee, being mere personal estate, and a chose in action, if the wife's, may be disposed of by her husband, and reduced to his possession, and made his, as other personal estate of hers is; but his alienation of it will not bind her, for this is not reducing it to his possession; nor is it so reduced till paid to him, his attorney, or agent; but if his creditors get possession, and alienate it to pay his debts, this is such a reducing it into possession. 13. Her rights and powers in equity; select cases added. Con. 23 &c., In equity a feme covert having separate property, can dispose of it; hence if she agrees, and shews her intention by her agreement, to affect her separate estate, a court of equity will apply it to satisfy such agreement, in the same manner as 1 Ves. J. 46, if she had been a feme sole; nor is it necessary to enable her to change her separate estate by her agreement, that a power of appointment should have been reserved to her; for if she takes an absolute, unqualified interest in her separate property, the power of appointing it as she pleases, is incidental to such property; therefore in this case, held, her will giving her separate property and its produce, whether derived from her husband or a third person, was a good and valid will. As to her separate property equity views her as a feme sole; but when in trust, this may be so worded as to restrain her power. 3 Bro. C. C. 8.-9 Ves. 220. 2 Ves. 190.4 Ves. 129, 437.-9 Ves. 14. Her will how valid. In the above case Fettiplace v. Gorges, 1 Ves. jr. 46, 49, the wife had a large separate per692-13 Ves. sonal property in trustees' hands, in common form, and af524-2 Atk. ter her death a writing was found, signed by her, in these 69, 379. words, "I leave all my personal estate, and every thing belonging to me, to my niece Diana Gorges." Held, a good will. On the husband's bill filed against the niece for the property to be decreed to him; because as argued for him, "there is nothing authorising his wife to make a will," and that it had never yet been decided, that it is incidental to separate property to dispose of it by will; the Chancellor observed that it had in Peacock v. Monk; also, that " if no disposition, the husband succeeds as next of kin, not in consequence of the marital rights." Bill dismissed. Cases cited; for the husband, Hearle v. Greenbank, 1 Ves. 299, (517;) for the niece, Wright v. Lord Cadogan, Peacock v. Monk; and her counsel said, in Hearle v. Greenbank, there is an express power as to the real, but as to the personal Lord Hardwicke says, "it is given to her separate use, in which case it is the rule of the court that a feme covert may dispose of it." See Norton v. Turvill, a. 10, s. 7; Bell v. Hyde, a. 10, s. 4, Hulme v. Tenant, 7. Cн. 19. Art. 2. 10 Ves. 191. 15. But the court will not subject to her contract her sep- 9 Ves. 486.arate estate, unless it appears she meant to charge it. It is 2 Ves. jr. 138. -2 Vern. doubtful if equity will execute a contract made by baron & 386, Seeling feme to live separate and for separate maintenance, if there be v. Crawley. no trustee, but will if there be one, and covenants to indemni- -2 Atk. 511. fy the husband against her debts; and if no such covenants. See Pre. Ch. 196, Augier v. Augier. So at law his covenant with trustees to pay an annuity to his wife, in case of a present or future separation, is valid; 2 East 283, and Ch. 19, a. 6, s. 2. But will not enforce the contract to the injury of creditors or purchasers of the husband, unless he is to be indemnified by the trustee's covenant against his wife's debt. 2 Bro. C. C. 20, Stephens v. Olive; 4 Cruise 398, 399. 3 Burr. 1805; § 16. Her contracts void, not relating to her separate estate. New.on Con. Newland, supported generally by the authorities, says, "the 31, cites contracts of married women differ from those of infants; for and 2 P. W. the former, considered without reference to their separate 144. property, are absolutely void, and therefore incapable of confirmation;" yet we find many cases, several of which are cited in this work, in which ber contracts have, in fact, been deemed confirmed. Worral v. 17. A court of equity regards more an assignment of the 1P. W. 459, wife's property, by the husband's contract, than an assign- Marlor. ment by mere operation of law. case; & 18, v. Saunders; 18. How he may dispose of her term in trust. House of 1 Vern. 7, Lords held, that where a term is assigned in trust for a wife, Turner's by a first husband, her second husband could alien the term; Pitt v. Hunt. but not where assigned in trust for her by the husband's con- -1 Eq. Ca. sent; so if assigned in trust for her separate use; 2 Vern. Abr. Walter 270; and if to raise a sum of money for her, instead of the ib. 63, & term itself being in trust for her, makes no difference; here 1 Vern. 161. the assignment in trust for her, was before her marriage. Yet if money be left in a trustee's hands for the wife's benefit, and the husband dies, it goes to her, he not having disposed of it. Where he can assign, his assignee has the benefit on his bill. § 19. Her chose in action. He can assign by contract, for Pre. Ch. 325. a valuable consideration, her particular chose in action, or ar- Brown. ticle, her equitable property, as he can her term, in trust for New. on Con. 126, 129, 130, 131.-2 Atk. 417.-1 P. W Povey v. 459. |