PROPERTY RIGHTS OF MARRIED PEOPLE.*

It has been repeatedly said that in Illinois, the property rights of men and women are equal under the law, and one can readily see, in looking over the statutes, the especial efforts which the later legislatures have made, to have the same provisions respecting property rights applicable to both husband and wife.

Thus, curtesy is abolished and dower given to both husband and wife. In the chapter on dower the same provisions apply to both. In the chapter on descent, which directs how property shall be distributed when no will is made, one provision covers both husband and wife. In fact, in most of the statutes relating to the property rights of husband and wife on the death of either, the name of the one might be substituted for that of the other without effecting any change in the pres

ent status.

But notwithstanding this, there is one thing which prevents these legislative provisions from effecting the just distribution of property that their wording would imply, and which renders the very equality which they seem to grant the cause of great inequality in the property rights of husband and wife. This obstacle is not the result of any positive legislation, but arises from the continued existence of some old common law principles, which have not yet been abrogated by legislation. The main principle to which I refer, is the refusal to recognize the financial value of a married woman's services.

* Read before the Illinois Social Science Association by the late M. Fredrika Perry, and published here by permission of Ellen A. Martin.

Under the feudal system, when the basis of property rights was the ability to kill one's fellow men; when wrong, robbery, rapine, and injustice were the rule, and right and justice the meager exceptions; when brute force was substituted for moral right, and the only restraint upon wrong, the greater physical power of another, then it was not to be wondered at, that the value of a woman's work should be placed at zero. Now, it is an anachronism that would shock us, had we the power of looking at it otherwise than through the atmosphere of custom. This feature of the financial dependence of a married woman upon her husband, is not warranted by anything else existing in the relations of husband and wife. They contract marriage as equals; their social status is equal. Even those holding conservative ideas as to the respective spheres of man and woman admit the equality, saying that man and woman are "equal, but different." The wife can contract, with but one small exception, as fully as her husband. She is clothed with the right of holding, controlling, or disposing of her separate property as fully as he is. She can even contract with her husband.

Our statutes have removed common law restrictions as to a married woman's action, and given her full power over her property. There is only one drawback to her full enjoyment of this right, and that is the fact that in the majority of cases she has no property to control. In a large proportion of the marriages the husband and wife start life with little or no property. They toil on for years, the husband taking the role of the money-getter, and the wife that of the money-saver.

The wife works just as hard as the husband, but the money comes into his hands, and he, by that immemorial universal usage which is dignified by the name of common law, is awarded control of it, and the wife left dependent on him for support. In many cases the work of the wife is harder than that of the husband, because more continuous and unremitting. "Man's work is from sun to sun, but woman's work is never done," says the old adage. The life of a farmer's wife is proverbially a hard one. Then, too, to be a good house

keeper requires not only one trade or profession, as in the case of the husband, but many. The wife must understand laundry work, cooking and baking, sewing, dressmaking, and perhaps tailoring; be a neat housekeeper, bring up her children well, and do a multitude of other things, besides having all the responsibility for domestic matters, and, in many cases, all responsibility about the children, resting with her.

And what pay does she receive for all this? Simply a support. When we take into consideration the fact that a man has had his choice of work, while a married woman's work has been prescribed by custom, whether or not it were congenial to her taste, we can see the great injustice of giving to the man the choice of work, and because he has the choice of work, giving him, also, the control of all the funds accruing from their joint efforts, while the woman, with no choice, is made dependent on him.

Suppose that two young men should enter into a partnership, the terms of which were that one of them, taking his choice of work, should receive and control all the money coming into the firm, while the other, working equally hard, should receive only a support from him, with a promise of a third of the property in case he should survive the former, what would the verdict of the world be? Simply that the one was not capable of taking care of his own rights, and that the other was willing to take advantage of his ignorance. Nothing but custom prevents us from looking at the financial relations of husband and wife in the same light.

Of course there are exceptions to this. There are women in the world who do not work, just as there are men in the world who do not work; some on account of the possession of wealth, and again others who, without wealth, are simply a drag and burden on the husband; but, as on the other hand, there are marriages in which the husband is only a clog upon the wife, it is only fair to let these balance. Now, we are speaking of the average man and woman.

And just here I wish to say one word as to devote themselves to society and society duties.

women who This is done

usually by the desire of the husband as much as that of the

wife. And when it is understood between husband and wife that these shall be the wife's duties, I can see no reason why she is not entitled to her share of the income, as in other

cases.

Again, the want of capacity on the part of the wife cannot be urged in favor of the common-law doctrine, unless it be claimed that she deteriorates by marriage, as unmarried women manage their own income and property. As it is often said that marriage is the normal condition for woman, it will hardly be claimed that it is more deteriorating to her than an abnormal one.

The want of policy in creating a divided interest between husband and wife, is an argument equally without force, as, for many years, some women have held property separate from their husbands without yet overturning the domestic relation, and have lived just as happily as have others. There is absolutely no reason whatever, why a wife's right to control half the income and half the property acquired during marriage, should not be recognized and enforced by statute.

The influences preventing this act of justice are custom, prejudice and want of a thorough consideration of the subject. Husband and wife accept their respective positions-he, that of the nominal support of the family; she, that of a dependant-simply because their fathers and mothers have done so for ages before them, and it is easier to let things go on as they have been going than to effect a change. To man, it seems perfectly natural that woman should be dependent on him, because she always has been, and never having been in her position, he cannot realize the trial that it is to a person of mature years to be obliged to ask another for money, even if that other is her husband.

A lady of my acquaintance, the wife of a millionaire who is by no means a miser, says, that it is one of the trials of her life to ask for the money she needs, and that she invariably deputes her little child to do the asking, if possible. Children, of course, soon learn the relative financial positions of the husband and wife, and it often has a very detrimental effect so far as maternal authority is concerned. Sometimes they see

the injustice of such an arrangement and endeavor to modify it. A young man of my acquaintance, knowing his mother's dislike of asking for money, suggested to his father that a certain part of the income be paid her monthly. His father was surprised at the idea that it was not perfectly agreeable to his wife to ask him for money, but soon saw the force of the suggestion, and adopted it at once, greatly to the relief of the wife.

The idea needs to be thoroughly promulgated and understood, that a wife's moral right to one-half the acquisitions during the marriage, is just as full and complete as that of the husband. The recognition of the legal right will then soon follow.

But it is said that financial relations between husband and wife are very different from those in an ordinary business relation that it is all common property, all one interest; that the husband holds for the benefit of both. Leaving out of question a married woman's proverbial difficulty in obtaining money, let us look for a moment at a decision of our Illinois Supreme Court, rendered in 1875. The case is Padfield vs. Padfield, 78 Illinois, p. 16. The syllabus is as follows:

"Any disposition of personal property and credits by a husband in good faith, where no right or interest is reserved to him, either present or ultimate, though made to defeat the rights of his wife, will be good against her."

"Where a husband transferred to one of his sons, notes and evidences of indebtedness to the amount of $60,000 under an agreement that he (the son) was to have one-third, and at the donor's death, the son should deliver the balance to certain trustees for the donor's other two children, in consideration of which the son was to pay the father $2,000 annually while he lived, for support. HELD, that the transfer was based upon a sufficient consideration, and placed the property beyond the father's reach, and that the widow could not claim any dower in the same."

"There is nothing in the statute respecting estates of deceased persons, that in the slightest degree prevents the husband from disposing of his personal property free from any claim of his wife, whether by sale, gift to his children, or otherwise, in his lifetime."

Under this decision, a man whose personal property amounts to millions of dollars, though all acquired by himself and wife jointly during marriage, could dispose of it all during his life, so that his wife at his death would be left a pauper, and have no redress, even if it were his acknowledged intention to strip her of everything. The plain facts of the case