CHAPTER XVIII. MARRIED WOMEN. THIS chapter will not speak of marriage or divorce, but only of the rights and powers of wives. Upon this subject there have been numerous local changes rather than one comprehensive, national change. But while it is not practicable to give explanation of details which will be full and accurate for all the States, a generalized view of the scope and spirit of the new law may be presented. THE OLD VIEW. By old English law as enforced in early years throughout this country (except in Louisiana), the legal existence and rights of a wife were, for the most part, deemed merged in those of her husband; or, as the view has been quaintly put, Man and wife were one, and the man was the one. As to property, the wife continued, indeed, the owner of her lands, but the husband controlled them and their income, and her money or personal property vested at once in him; and so did the proceeds of any demand or right of action, if he would take the trouble to assert his marital right. Her services also belonged to him. She was disabled from making any contracts. He was bound to provide her with necessary support while he lived. By way of provision after his death, she enjoyed dower, being the use, for her life, of one third of his real property. In nearly all judicial proceedings affecting her, he either took her place or stood by her side with a practical control of the affair. As to any criminal acts done in his presence, she was irresponsible, and he was dealt with as the sole offender. NATURE OF THE CHANGE AS TO PROPERTY. These subjects are all under the dominion of the several States. A national law prescribing a uniform rule for the whole country would not be allowable. Accordingly, while these old-fashioned views have been drawn under severe and urgent criticism all over the country for more than thirty years past, the degree of change effected has varied greatly in different regions. Some States have adhered partially to the old law, granting to the advocates of improvement only moderate alterations. Other States have in effect remodelled the relation. The change, though in the aggregate large, has been of slow growth; the increased privileges have been accorded bit by bit. Massachusetts and Maine were earliest in enacting limited laws of this character;* other States rapidly followed the example; yet down to about 1845 the laws which had been passed were of very limited scope compared with later ones. They secured the independence, in property and business, of wives whose husbands had deserted them, restricted creditors in seizing a wife's property for her husband's debts, enabled married women to make wills, and introduced some other special reforms, but did not assert any general, extended change. Michigan, in 1844, and New York and Pennsylvania, in 1848, introduced the general principle that, notwithstanding her marriage, a woman should continue the owner of all property she had acquired, and of subsequent acquisitions, at least if they came by inheritance or by gift from others than her husband; and should enjoy independent powers of making contracts and transferring property sufficient to enable her to manage her own. Such legislation has been rapidly and extensively followed, yet in a broken and irregular way. Take Connecticut, for instance: a complete protection to married women in their rights of property against creditors * Schouler's Domestic Relations, 209. of the husband is now the established policy of the State; but this has been attained gradually and with difficulty. The first act was passed in 1845; it protected the interest of the husband in the real estate of the wife which was hers at the time of the marriage, or accrued to her, by devise or inheritance during coverture. The second, in 1849, protected the personal estate which should thereafter accrue to her during her married life, by bequest or distribution, by vesting it in him as trustee for her. The third, in 1850, protected real estate conveyed to her in consideration of money or property acquired by her personal services. The fourth, also in 1850, protected reinvestments of the avails of her real estate when sold. The fifth, in 1853, vested in her, for her sole use, all her property, real and personal, when she was abandoned. The sixth, in 1855, extended the provisions of the act of 1849 to personal property owned by her at the time of marriage. The seventh, in 1856, extended the provisions of the act of 1849 to patent-rights, copyrights, pensions, and grants and allowances by government; and an eighth, in 1857, further extended it to property acquired by gift. The ninth, in 1860, extended the act of 1850 respecting property acquired by personal services to reinvestments of the same. The tenth, in 1865, extended the provisions of the act of 1845 to real estate acquired by gift or devise; and by the eleventh, in 1866, the rules of 1849 were extended and applied to all personal property, whether acquired before or after marriage. Thus the policy of protecting the wife's property from the husband's creditors was completed. Her rights and capacities have been further enlarged by later laws. In 1869 she was declared to be liable for business debts or notes given for benefit of the joint estate; and this law, with others passed in 1872 and 1873, made her liable to be sued upon antenuptial debts, or contracts made after marriage upon her personal credit for the benefit of herself, her fam * * Jackson v. Hubbard, 36 Conn. 10. ily, or her estate, and enabled her to join with her husband in suits in her behalf. Later, in 1877, her ownership of real property was continued to her, notwithstanding her marriage, and with power to make contracts or conveyances, except that her husband might have an interest as survivor; and, as to personal property, husbands were made trustees for their wives. Last of all, in 1878, all property thereafter acquired by any married woman was declared to be held by her for her sole and separate use. There are additional laws upon minor and collateral points. Not all the States have proceeded in this reform by so many distinct steps, but many have moved very gradually. Yet, while the method has been irregular, the results have been extended and thorough. HOW THE LAW NOW STANDS. Reviewing the various State laws passed down to about 1879, and disregarding details and minor differences, the general rule is that a good degree of independence is accorded to married women in respect to their estate. In nearly three quarters of the States, a woman, when marrying, retains all her property; and may, notwithstanding her marriage, acquire more, though not from her husband, lest his creditors should be defrauded. Some of the States, in declaring this principle, say that her property shall not be subject to her husband's debts, but go no further; they do not deprive him of control of it. Several of the courts have said that they will administer the old law except as far as the new one has distinctly changed it; and where such a statute prevails, it may be that the husband can, though his creditors cannot, have the collection and benefit of rents from his wife's lands. But other States go further, and call whatever a wife owns "her separate property;" and others further yet, and say very explicitly that it shall be free from his control or disposal. Thus her ownership of property is almost everywhere assured, and very generally her control of it. Moreover, she has, by laws of a majority of the States, large powers of making contracts relative to her property; of selling and transferring it, and of suing and being sued in respect to it. These powers are, however, subject to some limits and qualifications which vary in different parts of the country. Moreover, the States which have not fully acceded to these principles have introduced limited reforms and special systems of law upon the subject;* so that the old English doctrine of the husband's acquiring the wife's personal property, the rents and profits of her lands, and the right to collect securities belonging to her is practically abrogated throughout the country. AN IMPORTANT QUALIFICATION. It is an important qualification of the modern doctrine of separate property of married women that a woman who desires the benefit of the rule must keep her property reasonably separate. Three of the States (Arkansas, Florida, and Oregon) require an inventory or schedule to be filed in some public office, enumerating the property which the wife asserts to be her own. And even then she is liable, on general grounds of commonsense, to lose her property by carelessly allowing the public to believe it is her husband's. Any one is liable to lose property by allowing it to become so intermingled with that of another person that it cannot be separated; or by permitting another person to obtain credit on the strength of being supposed to own it; and the fact that the other person is one's husband makes no difference. Numerous stories are narrated showing that ladies have not always understood this, but have supposed the law would preserve their property for them without any watchfulness on their part. It does not; it merely enables * Louisiana did not adopt the old English law. The view there has always been that marriage was, as to property, a kind of partnership under the husband's management; and that, on a dissolution, each should receive back what he or she contributed, while acquisitions made during the marriage should be divided. Substantially this view prevails also in Texas, California, and Nevada, |