HI 



WIFE; HUSBAND AND WIFE. 



WIFE. 



nil 



The theory of the law is, that the husband lias over his wife's 

 personal property absolute control, and over real property a control 

 modified partly by the general rules of descent, partly by statute, 

 partly by the decisions of courts of equity, whieli always lean to the 

 protection of the wife's property and the maintenauc of any contract 

 or provision made, whether by her husband or others, i jr her benefit, 

 even so far as to admit a suit of the wife in the name of her next 

 friend against the husband for injuries done by the latter to .her 

 property or for the recovery of rights withheld by him. To this end 

 they interpret the Statute of Uses, as giving the wife, by the inter- 

 position of trustees, independent rights to property and control over it. 

 Thus although she cannot take by direct grant from her husband, she 

 may avail herself of such a grant by him to trustees for her benefit, 

 and generally she may take by devise and by descent directly ; and by 

 settlement, or by grant through the intervention of trustees ; she may 

 her.-:' If be a trustee, and (although that position has been controverted) 

 she may devise her trusts. Again, the common law vests in her 

 husband not only her personal property (excepting her paraphernalia), 

 but her chattels, real or leasehold interests : yet if a settlement has 

 not been made on her expressly in consideration of her fortune, those 

 portions of her personal property which consist of securities for money 

 or beneficial contracts, and her chattels real, survive to herself, pro- 

 vided the securities have not been realised, and the chattels real have 

 not been aliened, during his life by her husband ; to arrears of rent 

 due on the wife's separate estate, the husband is, however, entitled by 

 statute 32 Henry VIII. c. 37. [CaosES IN ACTION.] Nor does the 

 settlement deprive her of this right with regard to things in action 

 a< '[nired subsequently to the execution of the settlement, unless it 

 expressly reserves to the husband future as well as present personalty. 

 If a husband requires the intervention of a court of equity for the 

 purpose of reducing into possession hia wife's property, the court will 

 require him to make on her a settlement proportionate to the benefit 

 which Ije derives. Usually one-half of the fund is settled upon the 

 wife and children, but the court takes all the circumstances into con- 

 if ion, especially whether any settlement already exists. The 

 adultery of the wife deprives her of her equity (unless she has been a 

 ward of court married without the consent of the court) ; but her 

 delinquency will not induce the court to vest the whole of her pro- 

 perty in her husband, because he does not maintain her. The court 

 will secure the property for the benefit of the survivor and the 

 children. On the other hand, in case of the cruelty of the husband or 

 his desertion of his wife, the court will award to her and her children 

 not only the whole principal, but the interest of the property in 

 question. On the same principle, if the husband is insolvent, the court 

 will grant to the wife out of her trust property an allowance usually 

 equal to half the proceeds of that property. The interest which the 

 husband takes in his wife's real estate of which she is seised in fee 

 vesta the profits in him during her life, but it gives him no power over 

 the inheritance. By the common law a husband might alien his wife's 

 real estate, or lease it for her life or that of the tenant, and she was left 

 to her remedy if she survived him, or her heir at law had his remedy if 

 the husband survived : if they neglected that remedy, the alienation 

 by the husband was good ; but by the 32 Henry VIII., c. 28, the wife 

 or her heir may enter and defeat the husband's act. By that statute 

 the lease of lauds held by a man in right of his wife, or jointly with 

 her, is good against husband and wife if executed by both ; the lease 

 may be for years or for life, but it must relate to land usually leased, 

 it must not be by anticipation or in consideration of a fine ; it must 

 reserve a fair yearly rent to the husband and wife ; and the husband is 

 restricted from aliening or discharging the rent for a longer term than 

 hia own life. If, however, the wife receives rent after her husband's 

 death upon any lease of her estate improperly granted by him, she con- 

 firms that lease. A wife's copyhold estates are forfeited to the lord by 

 any such acts of her husband as are ruinous to the estate (for example, 

 waste), as destroy the tenure (for example, an attempt to convert it 

 into a freehold), or otherwise deprive the lord of his rights, as a posi- 

 tive refusal to pay rent or perform service. But courts of equity will 

 relieve the tenant when the forfeiture is not wilful or can be 'com- 

 pensated. 



The husband may mortgage his wife's real property during their 

 joint lives and during his life in addition, if he survives her, and become 

 tenant by the courtesy ; if the wife joins in that mortgage, and recog- 

 nise* it after her husband's death, she will be bound by it ; but she 

 may, if she thinks fit, repudiate it. Before fines were abolished, her 

 levying a fine rendered a mortgage a good security against her and her 

 heirs ; and since the act abolishing that form of assurance, a deed 

 acknowledged by her as the act prescribes effects the same object. 

 [KixK OF LANDS.] A mortgage jinade by a wife of her estate for the 

 sole benefit of her husband, and not to discharge a debt of her own, 

 gives her a right at equity to compensation out of his assets. 



Such are the principal rights which a husband acquires in his wife's 

 property, and the limitations of those rights. On the other hand, the 

 common law gives to her if she survives him an estate for life in a 

 third part of all such estates of inheritance as he was solely seised of 

 7 the marriage, and as any children of the marriage might pos- 

 sibly have inherited. [DowER.] That right of dower may be forfeited 

 in various ways, and it may be defeated by a provision for her, made 

 before marriage, in the shape of jointure. [JomiUBJE.] Since the 



ARTS AND SCI. DIV. VOL. VIII. 



stat. 3 & 4 Wm. IV. c. 105, in marriages subsequent to 1st January* 

 1834, dower does not attach unless the husband died possessed ; and it 

 does accrue on estates disposed of by the husband during his life or by 

 will, while it may be defeated by a declaration of the husband by deed 

 or will, that his estates are not to be subject to dower. 



The Statute of Distributions (22 & 23 Car. II. c. 10) gives to the 

 widow of an intestate husband (if her claim has not been barred by 

 settlement) one-third of his personal property where there is issue of 

 the marriage living, and one-half where there is none. Marriage 

 revokes powers of attorney previously granted by the wife, and dis- 

 ables her from granting them ; but it does not disable her from 

 accepting such a power, or from acting on one granted to her before 

 coverture. She may too be attorney for her husband. She cannot 

 bequeath her personal estate by will unless under a power, or with the 

 consent of her husband. 



The separate property of the wife has been already treated under 

 that head. [SEPARATE PROPKRTY ; PIX-MOXEY.] 



There remains only the separation of husband and wife ; which may 

 be by deed or by decree of the Court for Divorce and Matrimonial 

 Causes. The ecclesiastical courts considered all deeds of separation 

 and all covenants in the nature of such deeds to be void. The courts 

 of law, however, not only have supported such deeds against the 

 husband, but have enforced a covenant made by him with his wife's 

 trustees to pay her an annuity as a separate maintenance in the event 

 of their future separation, with the approbation of the trustees. But 

 courts of equity will not interfere to enforce such deeds, though by a 

 strange inconsistency they will enforce the husband's covenant for a 

 separate maintenance if made through the intervention of trustees, 

 and indeed in certain rare cases if made between the husband and wife 

 alone. Nor is the adultery of the wife a sufficient answer to her claim 

 to the separate maintenance. The separation by decree is either a 

 judicial separation or a divorce. A wife when deserted by her husband 

 may obtain an order to protect her earnings from him or his creditors, 

 and she will then be able to contract as if she were a feme sole. But 

 when the desertion of the husband extends over a period of two years, 

 or when he treats her with cruelty, or commits adultery, the wife may 

 obtain a judicial separation. [SEPARATION.] When, again, the hus- 

 band commits incestuous adultery, or to adultery adds the crimes of 

 bigamy or rape, cruelty or desertion for two years, or is guilty besides 

 the adultery of an unnatural offence, the wife may obtain a dissolution 

 of the marriage. [DIVORCE.] 



WIFE. (Scotland.) The moveable or personal estate of a husband 

 and wife is under the administration of the husband ; according to the 

 phraseology of the law it is called " the goods in communion," because 

 on the dissolution of the marriage by the death of either party it falls 

 to be so divided that if there be issue of the marriage a third, and if 

 there be no issue a half, goes to the nearest of kin or to the legatees of 

 the deceased, whether husband or wife, the remainder being the pro- 

 perty of the survivor. During the continuance of the marriage the 

 husband's right as administrator is in all respects equivalent to the 

 right of a proprietor, and whether the common property has been 

 acquired by himself or by the wife, it ia entirely at his disposal, in so 

 far as that disposal is intended to have effect during his lifetime. His 

 right of bequeathing it is limited by the Scottish law of succession, 

 [WILL.] As the husband has the administration of the wife's property, 

 he is responsible not only to the extent of the goods in communion, 

 but personally, for the wife's obligations, whether contracted before or 

 after marriage. No suit can be brought against a married woman 

 unless the husband be made a party. The wife cannot of herself enter 

 into a contract exigible by execution against the goods in communion 

 and the person of her husband, unless in certain cases in which by 

 general law or by practice she holds an agency. To this effect she is 

 praposita negotiis domeiticit, and whatever debts she incurs for house- 

 hold purposes are debts against the husband ; but the husband may 

 discharge himself from responsibility for debts so incurred by obtaining 

 an "inhibition" against her. A wife's agency may be extended like 

 that of any other agent ; but it does not extend, without special autho- 

 rity, to the borrowing of money. 



Heritable property (a term nearly equivalent to that of real property 

 in England) belonging to either party is in the administration of the 

 husband. He can however grant no lease of his wife's heritable pro- 

 perty, to last beyond his own life, without her concurrence. On the 

 other hand, from the date of the proclamation of the banns all deeds 

 granted by the wife are null if they do not bear the husband's concur- 

 rence. Hia right of administration, including the necessity for his 

 concurrence in the wife's deeds, may be excluded by his resigning his 

 jus mariti in an antenuptial contract of marriage, or by the special ex- 

 clusion of the^'"* mariti in the title of any estate conveyed to the wife. 

 Every deed executed by a wife is presumed to have been executed 

 under the coercion of her husband, and may be set aside unless the 

 wife ratify it by oath before a magistrate. 



A separation of- married parties may take place either by judicial 

 interference or voluntary contract. Personal violence or acts physi- 

 cally or morally injurious on the part of the husband, will justify a 

 judicial separation at the suit of the wife, in which an alimentary 

 allowance is awarded to her proportioned to his means. A voluntary 

 separation may take place by mutual agreement, but in such a case an 

 alimentary allowance will not be awarded unless it has been stipulated 



