of it to the heir, the widow will also hold her dower discharged from it, a third of which she was previously liable to pay to the heir. (Coke's Littleton, 241. 1 Bright's Husband and Wife, 395, 396.)*

CHAPTER XXXI.

THE STATUTORY PECULIARITIES OF THE SEVERAL STATES WITH RESPECT ΤΟ HUSBAND AND WIFE, AND THE RIGHTS OF MARRIED WOMEN— THE LAWS OF NEW YORK-THE ACT FOR THE PROTECTION OF THE PROPERTY OF MARRIED WOMEN-RIGHTS AND LIABILITIES OF HUSBAND AND WIFE-PRESUMPTIONS IN FAVOR OF THE WIFE-THE HUSBAND'S TENANCY BY THE CURTESY.

§ 451. THE law with respect to husband and wife, and especially the law which defines the position and the rights of the femecovert, has undergone a very great change in this country within the last few years. Some of the peculiarities of these local changes will now be referred to more fully than in the previous discussion; and it will be convenient to advert to the states in their order, beginning with the State of New York.

The first radical change which was made in the old rules respecting the property and rights of married women, in New York, was the passage of the act of 1848. This act has been amended from time to time by subsequent legislatures until the law has become tolerably well settled.

Previous to the year 1848 there was a strong sentiment that the wife was the victim of an oppressive legal system, from which she ought to be relieved. This was a prominent subject of debate in the constitutional convention which sat in 1846; and the substance of the subsequent act of 1848 was at one time incorporated into the project of the new constitution, but it was finally rejected by a

It is not consistent with the design and plan of this treatise to pursue the discussion of the subject of dower further. Enough has probably been said to give the student a bird's-eye view of the entire subject, and to enable him to comprehend and master most cases which are met with in ordinary practice. Should the reader, however, desire to possess himself of the very great variety of learning to be found upon the subject, both ancient and modern, he is referred to Park on Dower, or to the elaborate work of Mr. Scribner, now just published, or some of the other standard treatises in which the subject is specially and exclusively treated.

close vote. (Debates by Croswell and Sutton, pp. 55, 116, 794, 795, 811-813.) The advocates for a reform as to the legal condition of married women then addressed themselves to the legislature, and the result, in the first instance, was the act of 1848, referred to.

As the law now stands, any married female may take by inheritance or by gift, grant, devise or bequest from any person other than her husband, and hold to her sole and separate use, and convey and devise, real and personal property, and any interest or estate therein, and the rents, issues and profits thereof, in the same manner and with the like effect as if she were unmarried, and the same is not subject to the disposal of her husband, nor liable for his debts. (Laws of 1848, ch. 200, § 3, as amended by the Laws of 1849, ch. 375. 4 Stat. at Large, 513, 514.) And by another act, the property, both real and personal, which any married woman owns as her sole and separate property, and that which comes to her by descent, devise, bequest, gift or grant, or which she acquires by her trade, business, labor, or services, carried on or performed on her sole or separate account; or which a woman married in this state owns at the time of her marriage, and the rents, issues and proceeds of all such property will, notwithstanding her marriage, be and remain her sole and separate property, and may be used, collected and invested by her in her own name, and is not subject to the interference or control of her husband, or liable for his debts, except such debts as may have been contracted for the support of herself or her children by her as his agent. (Laws of 1860, ch. 90, § 1. 4 Stat. at Large, 515, 516.) § 452. By the statutes of the State of New York, a married woman may also bargain, sell, assign and transfer her personal property, and carry on any trade or business, and perform any labor or services on her sole and separate account, and the earnings of any married woman from her trade, business, labor or services, are declared to be her sole and separate property, and may be used or invested by her in her own name. And any woman possessed of real estate as her separate property, may bargain, sell and convey such property, and enter into any contract in reference to the same, with the like effect in all respects as if she were unmarried, and she may in like manner enter into any such covenant or cove‐ nants for title as are usual in conveyances of real estate, which covenants are declared obligatory to bind her separate property, in case the same or any of them be broken. (Laws of 1860, ch.

90, §§ 2, 3, as amended by Laws of 1862, ch. 172. 4 Stat. at Large, 516.) And it is further provided that no bargain or contract made by any married woman in respect to her sole and separate property, or any property which may come to her by descent, devise, bequest, purchase, or the gift or grant of any person, except her husband; and no bargain or contract entered into by any married woman in or about the carrying on of any trade or business, under any statute of the state, shall be binding upon her husband, or render him or his property in any way liable therefor. (Laws of 1860, ch. 90, § 8, as amended by Laws of 1862, ch. 172. 4 Stat. at Large, 516, 517.)

§ 453. It has been judicially declared that the statutes of 1848 and 1849, referred to, gave no power to the wife to dispose by will of property acquired by her before the passage of the acts, or of the interest accruing after the acts, upon money previously given to her, or of the proceeds of her own labor which her husband permitted her to receive, manage and invest in her own name, and as if it were her own property. It was admitted, however, that the language of the acts was broad enough to embrace all property owned by the wife at the time of the marriage, or acquired by her by gift, devise or otherwise during coverture and before the passage of the act, excluding any title or right which the husband had acquired in it by pre-existing laws, saving only the rights of creditors. In short, that the effect of the statute was to take away from the husband all right to the personal estate and choses in action of the wife acquired by virtue of the marital relation; but it was held that it was not competent for the legislature to enact a law thus affecting existing rights of property, and that the statute, so far as it related to such existing rights of property, was unconstitutional and void. (Ryder v. Hulse, 24 N. Y. R. 372, 375.) Indeed, the same doctrine had been held by the court of appeals eight years before, when it was decided that the husband had a vested interest in a legacy which was bequeathed to his wife prior to the act of 1848, although the legacy was not reduced to possession when that act took effect, and therefore the legislature had not power to deprive the husband of his rights to such a legacy, and make it the sole and separate property of the wife; and that so far as the act purports to do so, it violates the provision of the constitution of the state, declaring that no person shall be deprived of property without due process of law." (Westervelt v. Gregg, 12

N. Y. R. 202.) Similar decisions have also been made by the supreme court of the state, and the doctrine settled by them is important, not only as determining the rights of parties under the act, but also as an index by which to decide with respect to other acts of the legislature. But it seems that the statute, so far as it provides that all future property descending to the wife shall be transmitted to her, to her sole and separate use, and that she shall hold the rents, issues and profits thereof in the same manner, and with the like effect as if she were unmarried, was in effect a modification of the laws of inheritance entirely within the control and direction of the legislature. (Sleight v. Read, 18 Barb. R. 159.) And the married woman's acts of 1848 and 1849 are not liable to objection, as impairing the obligation of a contract, because they defeat the expectation which the father of a living child had, previous to those acts, of being tenant in curtesy in lands acquired by his wife during coverture and subsequent to those acts. (Stevenson v. Townsend, 22 N. Y. R. 517.)

§ 454. It has been deliberately held in at least two cases in the court of appeals, that the common law disability of a husband to take land by conveyance from his wife, is not removed by the statute of 1849, enabling the wife "to convey and devise real and personal property, as if she were unmarried;" and therefore it was decided that a deed executed by a wife, in contemplation of death, in good faith and voluntarily, was wholly ineffectual. The learned judge who delivered the opinion of the court said: "No doubt there was an intention to confer upon the wife the legal capacity of a feme-sole, in respect to conveyances of her property, but this does not prove that she can convey to her husband, for no such question could possibly arise in respect to a feme-sole, there being no person to whom, in respect to conveyances as made by her, the rule of the common law could apply. By assimulating the case of a wife to that of an unmarried woman, the legislature merely meant to say that she should have the same power as though she was not under the disability of coverture. Taking away that disability, she would have power to make all such conveyances as were not forbidden by special provisions of law; but such general statutes are never understood to overreach particular prohibitions, founded on special reasons of policy or convenience. Corporations cannot in general take title to lands by will. The removing of the disabilities of femes-covert would not allow them to make a devise

to a corporation not authorized to take. It is not the disability of the wife alone which would, by the common law, render void her conveyance to her husband. The husband is as much disabled to take under such a conveyance as she was to convey. Therefore, to render the conveyance valid, the husband's disability, as well as that of the wife, must be removed; but as has been remarked, there is no language in these acts, and nothing in their apparent intention, which looks to the removal of any disabilities under which he labored." The decision of the court was not unanimous, but was pronounced in accordance with the opinion read; and it was further held in the case, that the defective conveyance could not be aided by the application of equitable principles. (White v. Wager, 25 N. Y. R. 328, 333, 334. S. C. 31 Barb. 250.) As was intimated, one of the judges dissented from the determination in the case of White v. Wager; but a case was subsequently decided by the court in which all of the judges agreed, that the disability of the husband to take land by conveyance from the wife remains as before the statute of 1849, although it was said that such a deed might be established by the application of principles of equity when a consideration has been paid, and also when the grantee is entitled to equitable relief for improvements made upon the premises in good faith, to the extent of such equitable claim. (Winans v. Peebles, 32 N. Y. R. 423. Vide also Savage v. O'Neil, 42 Barb. R. 374.)

§ 455. It seems that it was the purpose of the legislature, by the married woman's acts of 1848 and 1849, to confer new rights of property upon the wife, separate from and independent of her husband, and to enlarge and render more fixed and certain those already existing. Long anterior to those acts, the right of the wife to the ownership of property, both real and personal, distinct and independent of her husband, was thoroughly recognized and enforced by the courts. But the legislature thought proper to enlarge the rights of the wife in this respect, and make them more certain and stable, and with that view the enabling acts were passed. As the statute law now stands, a married woman may acquire the title to personal property, as well as real, by grant or purchase; and this purchase may be made in any of the ordinary modes known to the law or to the course of business. It may be made by the payment of cash for the property purchased, and if this cash be the property of the female, and paid with the intent