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ARTICLE II.—THE LEGAL RIGHTS OF MARRIED WOMEN.

Woman's Rights under the Law: In Three Lectures, deliv

ered in Boston, January, 1861. By CAROLINE H. Dall. Boston : Walker, Wise & Co., 1861.

During the last ten or fifteen years nearly all the states of the Union have been practicing a series of legislative experiments upon the legal relations of husband and wife. So far as they have gone, they have been indebted, for the most part, to the escort of the reformers of the school of Woman's Rights, prominent among whom, we believe, is the lady whose interesting book we have taken as the text of this Article. Some of the states have moved very slowly and cautiously, nibbling a iong time at the bait, and then only tasting, and that very daintily. Their advancement, in view of the evils to be corrected and the great good to be accomplished, seemed to be at a snail's pace. But still those who progress at this rate are not apt to fall into the frequent error of suffering the work of demolition to get too far the start of the severer and more difficult labor of reconstruction. Other states have gone to the opposite extreme. They seem (at least so far as regards matters of property, to which we propose to confine ourselves) to have thrown themselves, without reserve, into the arms of the reformers. Fundamental principles, time-honored and venerable, in many cases however far behind the spirit of the age, have been suddenly broken down, and in their place the law makers have substituted certain crude, untried, and ill-digested theories, leaving to those upon whom devolves the duty of expounding and administering the law, the burdensome and oftentimes impossible task of putting together, into some sort of shape, the raw materials of the new system and the scattered fragments of the old. Foremost among the states of this latter class is New York. In the year 1848 it set out in the promotion of the cause of Woman's Rights, and the successive innovations made

then, and since then, by its legislature upon this branch of the common law, are the boldest, the most radical, and sweeping, upon record. To these innovations we propose more particularly to call the attention of our readers, noting at the same time some of the most important modifications that have been made in the old system, in Connecticut, Pennsylvania, and other states. The New York statute of 1848 was entitled, act for the more effectual protection of the property of married women.” It is not long, and as we shall often have occasion to refer to it, we venture to present it in full. As amended in 1849 it reads as follows:

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§ 1. The real and personal property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents, issues, and profits thereof, shall not be subject to the disposal of her husband, nor be liable for his debts, and shall continne her sole and separate property, as if she were a single female.

§ 2. The real and personal property, and the rents, issues, and profits thereof, of any female now married, shall not be subject to the disposal of her husband; but shall be her sole and separate property, as if she were a single female, except so far as the same may be liable for the debts of her husband heretofore contracted

$ 3. Any married female may take by inheritance, or 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 like effect as if she were unmarried, and the same shall not be subject to the disposal of her husband nor be liable for his debts.

Following in the wake of the legislature, there came a flood of applications into the courts for relief to married women under the second section of the act, the effect of which, if granted, would have been to interfere with rights of property that had become vested before its passage. Hence the courts, in strict adherence to the constitution, uniformly rejected them.* The decisions, so far as reported, were harmonious in their results, but they disclosed great difference of opinion as to the proper construction of the second section. Was it in conflict with the constituion ? Judge IIarris, with considerable indulgence towards the legislature, came to the conclusion that it was not

* The following are the most interesting cases in point: Snyder v. Snyder, 1848, 3d Volume, Barbour's Supreme Court Reports. This was an action brought by a married woman against her husband for a decreo of separation on the ground of cruel treatment. Judge Harris of Albany, now United States Senator, refused to grant her petition that her husband might be required to deliver to her property of considerable value, which belonged to her before the marriage, but which, before the act took effect, he had taken into his possession and controlled exclusively himself, as he had a right to do by the common law.

Holmes v. Holmes, 1818, 4th Volume, Barbour's Reports. In this case, Judge Barculo refused to allow a married woman to receive absolutely as her own, and against the will of her husband, a distributive share of her father's estate, given to her by his will, but inasmuch as she had obtained a decree of separation against her husband, he directed the funds to be invested by a trustee for her sole and separate use during her life, in accordance with the settled principles of equity applicable to such cases, and independently of the statute under consideration.

White v. White, 1849, 5th Volume, Barbour's Reports. In this case Judge Mason decided that notwithstanding the second section of the statute, he had no authority under the constitution to take from the husband of a married woman upon her application, (though based upon charges against him of idle and in. temperate habits, improvidence in business, and personal violence towards herself, as well as his omission and refusal to provide for her or her family), and to give to her the management and control of the farm upon which they had lived, and which had been set off to her in the partition of her father's estate, in 1828. The judge held, that the husband's freehold estate in the farm, during the joint lives of himself and his wife, which, by virtue of the marriage, became vested in him, could not be divested by any act of the legislature.

Watson v. Bonney, 1849, 2d Volume, Sandford's Superior Court Reports. In this case Judge Sandford denied the application on the part of a married woman, under the second section of the statute, to have her marriage settlement set aside and vacated, and the property vested by it in her trustee transferred back to her to be * her sole and separate property,” the same as if she were a "single female."

Smith v. Colvin, 1853, 17th Volume, Barbour's Reports. This case involved the life estate acquired by a husband, as tenant by the curtesy, in the real estate of his wife, upon the birth of children before the act. It came before Judges Gridley, Allen, and Hubbard on appeal, and they sustained the action of the husband, brought after her death, to eject from the premises the party to whom she (availing herself of the voluntary state of separation between herself and her husband, and the exercise of the liberty which she supposed granted her by the statute) had sold and conveyed them, after its passage.

Perkins v. Cottrell, 1851, 15th Volume, Barbour's Reports. In this case, as also in the case of Varlie v. Underwood, 1854, 18th Barbour, it was decided, directly in the teeth of the concluding clause of the second section, that the freehold interest acquired by a husband in the lands of his wife, before the act took effect, was liable for his debts, though not contracted until afterwards. On the other hand, though the debt was contracted before the act took effect, still, if the lands did not descend to the wife until after that, the husband took no interest which his creditors could reach. See the able opinion of Judge Clerke in the cas of Sleight v. Read, 1854, 18th Barbour.

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intended to operate retrospectively, but only upon property to be acquired by a wife, after the passage of the act. This was also the opinion of Judges Welles, Hubbard, and Sandford. But Judges Barculo and Mason pronounced the section to be directly in conflict with vested rights, and therefore with the constitution. The controversy was finally settled by the Court of Appeals in 1854.* Judge Denio, in a brief but masterly opinion, after pointing out the repugnancy of Judge Harris's construction to the concluding words of the section, and the superfluousness of the third section under such a construction, concludes “that the true meaning of the section is, that all the property which the wife owned at the time of the marriage, and that all such as she had acquired by gift, devise, or otherwise, during the coverture, but before the passing of the act, should thereafter be deemed to be vested in her as though she were a feme sole, to the exclusion of any title which, by the pre-existing laws, the husband had acquired in it by virtue or the marriage relation, saving only the rights of creditors.” The learned judge accordingly pronounces the section void, as a violation of the provision of the constitution declaring that no person shall be deprived of “property without due process of law."

Another question, and one of greater importance practically than that which we have been considering, related to the effect, if any, produced by the new statute upon the law of succession to the estates of persons dying intestate. By the common law, in England and most of the states, if a man married a woman owning real estate, or acquiring it after marriage, and became the father of a child by her, and then survived her, he was entitled to the use of such real estate during his life. This interest of the husband in the landed property of his wife was called, from time immemorial, his estate by curtesy. It entitled him to the control and management, as well as the revenues and income, of the property embraced by it. But the property itself he could not alienate or encumber, nor could he give any valid direction as to the dis

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* Case of Westervelt v. Gregg. 2d Vol. Kernan's New York Reports.

position to be made of it upon his death. With the fee of the land, in other words, the principal or corpus of the estate, he had nothing to do. That passed to the heirs of his wife, that is to say, to her children, or parents, or brothers and sisters, or remoter relatives. And it was impossible for him in any way to defeat or disturb their inheritance, and he might be enjoined by a court of equity from abusing his life-interest by committing waste upon the property to the damage or injury of their reversionary interest. Now there was no question but that the new statute (see particularly the third section) enabled a married woman to convey or devise her real property, so as to cut off altogether her husband's estate by curtesy, saving, always, rights of his that became vested before the act took effect. But suppose she makes no such conveyance and dies without a will? Does the act go so far as to deprive her husband of his curtesy? This is the question to the solution of which no clue is given by the legislature. In fact, it probably did not enter the heads of the members of that body. At any rate, they left the public and the legal profession totally in the dark upon this point.

Another question, or rather another branch of the same question, related to the effect, if any, of the new statute upon the rules regulating the distribution of the personal property of the wife. By the common law, this became her husband's. In other words, the marriage operated as a gift of it to him. All he had to do, to make his title perfect, was to reduce it to possession. This feature of the old system was one of the chief grievances of which the reformers had to complain, and, in truth, whatever reasons there might have been to justify it centuries ago, and in a totally different state of society, it must be pronounced, when viewed in its present practical consequences by the lights in which we live, as unjust in the last degree. With the introduction of the new statute, however, the evil (vested rights being excepted) was swept away. But still, as in the case of real estate, the question arose as to whether the stump of the old system was not left protruding, so that, when a married woman died without having made any disposition of her personal property, it became

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