CH. 19. she may abandon it and claim her dower, or she may redeem, Art. 22. 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, Barlow v. Bishop. And according to this case, Barlow บ. 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, without her; or second, when can she convey alone? If A lease to husband and wife, and he commits waste and dies, she confirms the lease by occupying the land when sole, and will be liable for his waste; but not so if she waive the lease, as she may. When she joins not with him in conveying her land, so is not bound, yet after his death she may confirm his act, and be bound by it, by agreeing to it after his death, and will be entitled to the rent reserved; but quære as to the arrears in his time; and so she may agree to a lease made to him and her, and then be bound to pay the rent accruing after the coverture ended; but a like quære as to that during it. She may agree to any conveyance made to them during the marriage, if she agree after his death, and is then liable to all charges, to which the estate is liable. 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. 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 a like case so decided. Cro. Car. v. Pierce. 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 111, 307. 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 ecclesiæ, 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; 3 Reeve's His.-1 Ver. 253-3 Atk 709-1 P. W. 126.-2 Ves. 75, 190, 610. but if CH. 19. Art. 22. they could devise this little, their own, themselves, it settles the antient principles, and it seems they could; and this statute of H. VIII, that authorized others to devise lands and real estate, forbid wives to do it. Their devises therefore must have been very rare, not for want of ability however to devise, but for want of property to be devised. Lord Hardwicke held this same doctrine, that a wife can devise her own separate personal estate. And so Lord Thurlow held, and the same, as a feme sole. Chancery never has had any power to dispense with the rule of property established by law; and if by it a wife could not devise, chancery could not decide she could. If by the coverture the wife is disabled to devise by law, the husband cannot give her power to do it, further than his property is concerned, certainly not to devise her own. The books agree, that the wife may make a will of personal estate, she has in auter droit, as her husband can have no interest &c., and without her husband's consent; and also her separate estate, as in Crompton v. Collinson, above; in which estate Moor 340.her husband had renounced his interest, so that no marital 2 East 552. right of his could be affected by her conveyance, in the nature of a deed or devise. As our ancestors, early after the settlement of our country, passed statutes relating to wills, the statute of H. VIII, on the subject, never was adopted here. 2 And. 92.- Turner. In this case it was held, in a court of law, that a will made 2 Mod. 170, by a feme covert, disposing of her estate in legacies, and to 173, Brook v. charitable uses, was good and valid. See her power over her separate property, Jarman v. Woolloton. 10. Does her marriage revoke her will made before marriage? Generally it does; because generally the marriage makes some alterations in her property; but not always does the marriage so revoke. The principle is this, as to whatever matter the wife becomes incapable of making a will by her marriage, it is a revocation of it, because the law will not hold a will valid, where there is no power to alter it, (except in the case of insanity ;) but whenever there is a power remaining in her, while covert, to alter her will or to make one, as in matters in auter droit, paraphernalia at common law, and separate property absolutely hers; there the marriage does not, of itself, revoke her will, because if she wishes to alter it she can do it, and her not doing it shows she wishes it to stand; and no injury can arise where there is this power. For instance, while sole a woman makes her will of things she has in auter droit, and marries; and this will thereby is not revoked, because her husband by the marriage gains no kind of interest in these things, but they remain hers, in auter droit, as they were before the marriage; and no hurt can accrue by holding this will valid, for no new rights accrue to make it unfit; CH. 19. Art. 22. Cro. El. 27, Eston v. Wood. and if she after married dislikes it, she can revoke or alter it, as she pleases; and if she do not, it is evident her intention was, that it should remain in force as she made it. And so are the books. A feme sole made her will, and her intended husband covenanted to let it have effect, and she married. He pleaded her 2 Vern. 535. marriage as revoking her will. But held, in the Common Pleas, it was not revoked: though not properly a will to all intents, it had the effect of one, and the deft., the husband, had in his covenant called it a will. Dougl. 708, It is to be inferred from this case, that a feme's will made before, is not revoked by the marriage, where the baron has renounced his right and power over her property, affected by 3 Atk. 156.— her will or appointment. Ross v. Ewer, 1 Burr. 431; 2 Br. Cowp. 260, 269, Darlington v. Pulte ney. 2 D. & E. 684. 701, Doe v. Staple. 4 Co. 60, Hembling's Case. Ch. R. 392. And the same in this case, for wherever the wife's will is valid, it might be by law; that is, in every case the law of the land must give her the power to make one, her husband never can give it, all he can possibly do is to renounce his right and power to annul it; when he does not, and permits the will, as he ever must when it affects any of his rights, it is idle to say he makes the will in his wife's name, for where her property is separate, and her own absolutely, as the ancient indowment at the church-door, or her separate settlement, he has not the least power by law to make such a will and dispose of it. It is no more his will than the deed is his deed, in which she conveys her fee simple, and he his life estate; nor so much, for it is his deed quoad his life interest, though hers to every intent quoad the fee, and so are the books. It is proved as hers, not as his, and often she has made a valid testamentary instrument before he has seen it. In this case it was held, that generally a feme's marriage revokes her will made before; and this is true, but not always, as the word generally, so often used in these cases, clearly imports; and 3 Brown Ch. Ca. 337; 6 Bro. Par. Ca. 156; also, Rex v. Bettesworth, Stra. 891. This case proceeded on the ground, generally that a feme's marriage revoked her will, but not always; and the court stated the true principle, that is, that there must be a capacity to devise, not only at the making of the will, but at its consummation at death, except in cases of insanity, and then held, the wife loses this capacity by subjecting her will to her husband's, and thereby losing her freedom of action. But this cannot be when he renounces his control in particular cases, and as to her separate property; and this subjection clearly is not to be presumed, where it is specially provided against. Now settled, where property is settled on the wife by |