*

ornaments; the former are hers absolutely, while the latter are subject to the payment of his debts, and even liable to his disposition.139 But if such articles were given to her by her father or other relative, or even by a stranger, either before or during the coverture, they will be considered her separate property, and if received with the husband's consent, he has no right to dispose of them, nor can his creditors take them for his debts.140

4002. Formerly, a married woman could not take and enjoy any estate, whether personal or real, separately and independently of her husband; and though this rule has been somewhat relaxed, yet at common law a wife is much restricted in this respect. In equity, on the contrary, a married woman has the capacity to take both real and personal property to her separate use.141

The power to hold property to her separate use is frequently created by antenuptial agreements, which will be upheld in courts of equity. But this authority may be given in a variety of ways when the intention of the parties is clear, and no technical words are necessary to create such separate estate.'

142

It was formerly supposed that trustees were indispensable in order to create a separate estate; and though it is highly proper that trustees should hold the legal estate for her, yet according to the modern practice and decisions, it is not indispensably requisite that they should interpose; for whenever real or personal property is given, or devised, or settled upon a married woman, either before or after marriage, for her exclusive and separate use without the intervention of trustees, the intention of the parties will be carried out in equity, and for this purpose the husband will be turned into a trustee for her,143 or she will be regarded as a feme sole.144

Not only under ante-nuptial agreements will she be able to hold separate property, but also a contract during the matrimonial connection made between him and her alone will be sufficient to entitle her to such separate property, and it will be enforced as if made with a stranger. Whether the separate estate be derived from the husband himself or from a stranger, he will, in either case, be treated as a trustee.145

In cases of this kind, in order to create a separate estate, the intention must clearly appear,146 for unless this intention is manifest, she will not have such separate estate as to exclude the marital rights of the husband.147

4003. A married woman may also acquire a separate property by becoming a sole dealer and trader, by permission of her husband, even without deed; in this case she becomes entitled to all her earnings as her separate estate.148 And

139 Bacon, Abr. Executors, H; Rolle, Abr. 911. See Graham v. Londonderry, 3 Atk. Ch. 392; Ridout v. Earl of Plymouth, 2 Atk. Ch. 104; in the matter of Grant, 2 Stor. C. C. 312.

140 2 Roper, Husb. and Wife, 143; Graham v. Londonderry, 3 Atk. Ch. 393; in the matter of Grant, 2 Stor. C. C. 312.

141 Fonblanque, Eq. B. 1, c. 2, 2 6, note (n).

142 Ballard v. Taylor, 4 Des. Eq. So. C. 550; Griffith v. Griffith, 5 B. Monr. Ky. 113; Trenton Banking Company v. Woodruff, 1 Green, Ch. N.J. 117; Stewart v. Kissam, 2 Barb. N. Y. 493; Taylor v. Stone, 21 Miss. 653.

143 2 Story, Eq. Jur. 1380. See. Franklin v. Creyon, Harp. Eq. So. C. 243; 5 B. Monr. Ky. 113. See Guardian of Elms v. Hughes, 3 Des. Eq. So. C. 158; Porter v. Bank of Rutland, 19 Vt. 410; Blanchard v. Blood, 2 Barb. N. Y. 352; Ellis v. Woods, 9 Rich. So. C. Eq. 19.

144 Firemen's Ins. Co. ". Bay, 4 Barb. N. Y. 407.

145 Fonblanque, Eq. B. 1, c. 2, 6, note (n); 2 Story, Eq. Jur. & 1380.

146 Franklin v. Creyon, Harp. Eq. So. C. 243; Darley v. Darley, 3 Atk. Ch. 399; Wagstaff v. Smith, 9 Ves. Ch. 520; Tyler v. Lake, 2 Russ. & M. Ch. 183; Johnes v. Lockhart, 3 Brown, Ch. 383, note; Adamson v. Armitage, Coop. Ch. 283, 19 Ves. Ch. 416; Pritchard v. Ames, 1 Turn. & R. Ch. 222; Stanton v. Hall, 2 Russ. & M. Ch. 175.

147 Tyler v. Lake, 2 Russ. & M. Ch. 183; Kensington v. Dolland, 2 Mylne & K. Ch. 184; Willes v. Sayers, 4 Madd. Ch. 409; Roberts v. Spicer, 5 Madd. Ch. 491.

148 Magrath v. Robertson, 1 Des. Eq. So. C. 445.

if a husband should desert his wife, and by the aid of her friends she should be enabled to carry on a separate trade, her earnings in such trade will be protected in equity from the claims of his creditors; 149 or if by virtue of antenuptial agreement, she should carry on business on her sole and separate account, her profits will be treated as her private property.'

150

4004. In general, the wife cannot bind her person or property generally. She is allowed to bind her separate property, because as to that she is considered as a feme sole; but as to her general property, she is treated as a married woman, and in that capacity incapable of binding it, and subject to all the disabilities of that condition.

The intention of the wife must be clear that she intends to charge her separate property, for otherwise any contract she may make will not be enforced in equity, at least during her life. But when such is her intention, manifested by her acts, such estate will be charged, not in consequence of her contract, but upon the principle of an appointment; having the absolute power of disposing of the whole, she may dispose of a part, and her agreement to charge such estate will be considered an appointment pro tanto.151

4005. At common law, by the marriage, the wife is considered as giving absolutely all her personal estate, whether in possession or in action, to which she is actually or beneficially entitled or possessed of at that time, in her own right, or to which she may be entitled during coverture, to her husband. But, before the husband can have an absolute right to her choses in action, he must reduce them to possession; and, unless he does so during the coverture, on his death they survive to her, and, when she dies first, he can recover them only as her administrator.

4006. In relation to her chattels real, either in possession or which she may acquire during coverture, the husband has a qualified right; he may alienate them during coverture, and by that means deprive her of them for ever; or he may retain them till the death of one of them. When he dies first, they survive to her; when she dies first, he will be entitled to them.

4007. In some cases the husband cannot acquire the absolute title to the wife's personal property without the aid of a court of equity; in such case she is entitled to have settled upon her and her children a suitable provision out of her personal estate; this is called the wife's equity.'

152

4008. The principal cases when the courts of equity interpose to secure the wife her equity are the following:

When the husband seeks the aid of a court of equity; the court requires in such case that he who seeks equity shall do equity; and, therefore, if the husband has not already made a settlement upon his wife and children, he will be required to do so before any assistance will be given him. Indeed, the court will go farther, for where an allowance has been made to the wife out of a settled estate, and that against the claim of creditors, on a new accession of fortune

149 Cecil v. Juxon, 1 Atk. Ch. 278; Lamphir v. Creed, 8 Ves. Ch. 599; 2 Roper, Husb. and Wife, 173.

150 2 Roper, Husb. and Wife, 171.

151 Field v. Sowle, 4 Russ. Ch. 112; Stuart v. Kirkwall, 3 Madd. Ch. 387; Greatley v. Noble, 3 Madd. Ch. 94. See Roper, Husband and Wife, 243, 244; Clancy, Marr. Wom. 345. 152 Shelford, Mar. and Div. 605; 1 Meigs, Tenn. 551; Udall v. Kenney, 3 Cow. N. Y. 590; Kenney v. Udall, 5 Johns. Ch. N. Y. 446; Howard v. Moffat, 2 Johns. Ch. N. Y. 206; Glen v. Fisher, 6 Johns. Ch. N. Y. 33. See Ex parte Beresford, 1 Des. Eq. So. C. 263; Greenland v. Brown, 1 Des. Eq. So. C. 196; Bethune v. Beresford, 1 Des. Eq. So. C. 174; Clancy, Mar. Wom. 465; Murray v. Lord Elibank, 13 Ves. Ch. 6; Johnson v. Johnson, 1 Jac. & W. Ch. 459; Steinmetz v. Hathin, 1 Glyn & J. Bank. 64; Bennett v. Dillingham, 2 Dan. Ky. 437; Andrews v. Jones, 10 Ala. N. s. 400; Stevenson v. Brown, 3 Green, Ch. N. J. 503; Davis v. Newton, 6 Metc. Mass. 537; Vanduzer v. Vanduzer, 6 Paige, Ch. N. Y. 366.

during the coverture, they will decree a still further allowance, though the husband's creditors may be in danger of not being fully paid.153

When the husband makes an assignment of her equitable interest, and the assignee cannot obtain it without coming into chancery, he will stand in no better position than the husband who assigned it; it is a general rule that the assignee of a chose in action or other equitable interest takes it subject to all equities to which they were liable in the hands of the assignor, whether such assignment be special for the benefit of the assignee, or general for the payment due to creditors. Assignees, therefore, take the property assigned, subject to the wife's right of survivorship, and if the husband should die before such assigned property has been reduced by them to possession, she will be entitled to it. 154

An assignment of her reversionary interest, even with her consent, will not in general deprive her of her right to it in case of survivorship. The reason assigned for this is that the assignment cannot, from the nature of the thing, amount to a reduction of possession of such interest, and her consent during coverture is not binding upon her.155

When she seeks similar relief, as plaintiff, against her husband or his assignee in regard to her equitable interest,156 the rule is now established that whenever she is entitled to this equity for a settlement out of her separate equitable interests against her husband or his assignees, she may enforce it by bringing suit and filing a bill by her next friend."

157

4009. The wife's equity may be waived or lost in numerous ways, among which are the following:

When she has had an ample settlement made upon her, she cannot of course ask for another, and therefore the court will not in such case interfere in her favor; but when the settlement is inadequate, unless it be made under an express contract before marriage, her equity will remain, and, as mentioned before, where there has been an increase of her fortune during the coverture, a further allowance will be made.158

Although the wife's equity is for the benefit of herself and children, yet it is altogether personal to her, and if she die, the husband will be entitled to recover her equitable rights, through the aid of a court of equity, without making any provision for the children.159

By giving her consent in open court pending such proceedings, and before a decree has been made, the wife may waive her rights; but when she is a ward of the court and marries without its authority, she cannot, by giving her assent, entitle the husband to the fund.1 160

A wife may lose her equity by her own misconduct; as, when she lives apart from her husband in adultery, for by such misconduct she loses all right to the

153 Ex parte Beresford, 1 Des. Eq. So. C. 263.

154 Durr v. Bowyer, 2 M'Cord, Eq. So. C. 368; Elliott v. Waring, 5 T. B. Monr. Ky. 340; Mumford v. Murray, 1 Paige, Ch. N. Y. 620; Van Epps v. Van Dusen, 4 Paige, Ch. N. Y. 64; Clancy, Mar. Wom. 124; Bell v. Bell, 1 Ga. 637.

155

Stamper v. Barker, 5 Madd. Ch. 157; Hornsby v. Lee, 2 Madd. Ch. 16; Donne v. Hart, 2 Russ. & M. Ch. 360.

156 See Fry v. Fry, 7 Paige, Ch. N. Y. 461. In this case the husband had obtained a conveyance of his wife's estate by undue means and unconscionable advantage of her ignorance of her rights, and confidence in his representations; on a bill filed in chancery the court set aside the conveyance.

157 Clancy, Mar. Wom. 471; 1 Roper, Husb. and Wife, 260.

168 Ex parte Beresford, 1 Des. Eq. So. C. 263; Elliott v. Waring, 5 T. B. Monr. Ky. 340; Westbrook v. Comstock, Walk. Ch. Mich. 314.

159 Clancy, Mar. Wom. 532; 1 Roper, Husb. and Wife, 263; 1 Fonblanque, Eq. B. 1, c. 2,2 6, note (k); Johnson ". Johnson, 1 Jac. & W. Ch. 479. See Bell v. Bell, 1 Ga. 637. 160 1 Roper, Husb. and Wife. 264, 267.

protection of the court; but on the other hand, as she is not a charge on her husband, he will not be entitled to her equitable rights.161

4010. When her separate estate is vested in trustees for her use, she cannot dispose of it otherwise than according to the trust, for by that her rights are limited and established. When it is secured to her by some ante-nuptial agree ment, she will, in general, unless there is an express or implied stipulation to the contrary, have full power in equity to dispose of the same, whether real or personal, by any proper instrument in her lifetime, or by her last will, in the same manner and to the same extent as if she were a feme sole.162

The rights of a married woman to dispose of her separate estate are different if she has acquired it by virtue of a post-nuptial agreement with her husband; it can then affect only the rights of her husband. This will authorize her to dispose of her separate personal property, because her husband only has the right to prevent it; but with regard to her real estate, her heirs have an interest in it, of which they cannot be deprived by the act of her husband. The only mode of disposing of it is by a conveyance made in her lifetime by a deed acknowledged as is provided by the law of the state where the lands are

located.

4011. We have seen that by the marriage at common law the whole of the personal property of the wife becomes vested in the husband, so that she must depend upon him for her living and support. When she is deprived of this maintenance by the unjustifiable acts of her husband, equity requires that she should have some relief; as, when he totally abandons her, or forces her by his cruelty to leave his house and to seek an asylum elsewhere.

Though perhaps courts of equity, in general, have no jurisdiction to allow alimony out of the husband's estate,163 yet, if the wife has any equitable property within the jurisdiction of the court, in a case of desertion or ill treatment of the wife by the husband, or when he is unable or unwilling to maintain her, the court will decree a suitable maintenance out of such equitable funds.164

4012. This right of alimony may be lost for several reasons, of which the following cases are examples:

When the wife has been guilty of adultery, which has not been condoned, prior to the acts of cruel treatment by the husband."

165

When she has a competent maintenance of her own, independently of him. When the separation from her husband is voluntary, and it has not been caused by cruelty or ill treatment, or when he is ready and willing, bona fide, and perfectly able, to maintain her, and without good cause she refuses to return to him; because it is against the policy of the law to encourage these separations.166

161 1 Roper, Husb. and Wife, 276; Clancy, Mar. Wom. 586; 2 Story, Eq. Jur. 1419. 162 Jeremy, Eq. Jur. 208; 1 Fonblanque, Eq. B. 1, c. 2, § 6, note (q); 2 Roper, Husb. and Wife, 177.

163 In Virginia, the court of chancery has jurisdiction in all cases of alimony. Purcell v. Purcell, 4 Hen. & M. Va. 507. In Pennsylvania, and perhaps some other states, jurisdiction is given, in cases of desertion and ill treatment or cruelty, to certain tribunals, by

statute.

164 Nicholls v. Danvers, 2 Vern. Ch. 671, Raithby's note. See Jelineau. Jelineau, 2 Des. Eq. So. C. 45; Denton v. Denton, 1 Johns. Ch. N. Y. 364; Mix v. Mix, 1 Johns. Ch. N. Y. 108; Anon. 1 Hayw. No. C. 347.

165 Bedell v. Bedell, 1 Johns. Ch. N. Y. 604; Watkyns v. Watkyns, 2 Atk. Ch. 96; Carr v. Eastbrook, 4 Ves. Ch. 146.

166 In speaking of the distinctions which have been established in equity as to the effect of a deed of separation between husband and wife, the learned Judge Story, in his Equity Jurisprudence, 1428, says: "In the first place, a deed of separation does not relieve the wife from any of the ordinary disabilities of coverture. Marshall v. Rutter, 8 Term, 545. In the next place, a deed of separation entered into by the husband and wife alone, with

4013. When treating of persons, we had occasion to consider the remedy which the law allowed in cases of idiocy and lunacy; 167 it will now be requisite only to state what powers courts of equity exercise in such cases.

168

An idiot or lunatic is less capable of taking care of himself and of his estate than an infant, and requires the provident superintending care of the law in a greater degree. For this reason the court of chancery in England may be properly deemed to have had originally, as the general delegate of the crown, as parens patriæ, the right not only to protect infants, but also to have the custody of idiots and lunatics when they had no other guardian. This jurisdiction has been extended in that country from time to time by various

statutes.

In the United States, where courts of chancery have been established, they generally possess, in this respect, the same jurisdiction as the English courts. As to the form of the proceedings, it is unnecessary to add to what has already occupied our attention in another place.109

4014. The remedies which we have discussed, over which courts of chancery have exclusive jurisdiction, depend upon the subject matter of the controversy; there are others which relate to the nature of the remedy, some of which we have considered when treating of assistant jurisdiction; as, bills of discovery, and bills to perpetuate testimony. There are two others which will next be considered in order; these are the writ of supplicavit and the writ of ne exeat

regno.

out the intervention of trustees, is utterly void. Legard v. Johnson, 3 Ves. Ch. 352; Westmeath v. Salisbury, 5 Bligh, Hou. L. N. s. 375. In the next place, a deed for an immediate separation, with the intervention of trustees, will not be enforced, so far as it regards any covenant for separation, but only so far as maintenance is covenanted for by the husband, and the trustees covenant to exonerate him from any debts contracted therefor. Legard v. Johnson, 3 Ves. Ch. 359, 360; 2 Roper, Husb. and Wife, ch. 22, 3, 2, p. 270, and note; Id. 287; Westmeath v. Westmeath, Jac. Ch. 126; Worrall v. Jacob, 3 Mer. Ch. 267; Jee v. Thurlow, 2 Barnew. & C. 547; Elworthy v. Bird, 2 Sim. & S. Ch. 372; Rodney v. Chambers, 2 East, 283; Westmeath v. Salisbury, 5 Bligh, Hou. L. N. s. 339, 375. Ă covenant on the part of the trustees to indemnify the husband against the maintenance of the wife, will be a legal foundation for a covenant on his part to furnish a specific maintenance for her when there is a general trust deed between the parties. Westmeath v. Salisbury, 5 Bligh, Hou. L. N. s. 375; Id. 356. In the next place, if a deed of separation contains a covenant, purporting to preclude the parties from any future suit for the restitution of conjugal rights, the covenant will be utterly void. Ibid. In the next place, a deed containing a covenant with trustees for a future separation of the husband and wife, and for her maintenance consequent thereon, will be utterly void. Durant v. Titley, 7 Price, Exch. 577; Hindley v. Westmeath, 6 Barnew. & C. 200; Westmeath v. Salisbury, 5 Bligh, Hou. L. N. s. 339; St. John v. St. John, 11 Ves. Ch. 526. In the next place, even in case of a deed for an immediate separation, if the parties come together again, there is an end to it, with respect to any future as well as to the past separation. Fletcher v. Fletcher, 2 Cox, Ch. 99; 3 Brown, Ch. 619; Bateman v. Ross, 1 Dow, Parl. Cas. 235; Westmeath v. Salisbury, 5 Bligh, Hou. L. N. s. 375, 395; St. John v. St. John, 11 Ves. Ch. 537; 2 Roper, Husb. and Wife, ch. 22, 1, p. 273, note; Id. 5, p. 316; Clancy, Married Women, B. 4, ch. 4, p. 405, 413 to 417; 1 Fonblanque, Eq. B. 1, ch. 2, 6, note (n. 2). Whether a covenant for a separate maintenance would now be enforced against the husband, in case of an immediate separation, after the husband was willing to receive his wife again and cohabit with her, and there was no reason to suppose it to be otherwise than a bona fide effort at reconciliation, is perhaps questionable. See, on this point, the authorities collected and commented on by Mr. Clancy. Clancy, Married Women, B. 4, ch. 4, p. 405 to 420. Mr. Clancy thinks that where the separation is intended to be temporary, it would not be enforced; where it is intended to be permanent, it would. See also 2 Roper, Husb. and Wife, ch. 22, 5, p. 313 to 316; Id. 320 to 322. But see the judgment in Westmeath v. Salisbury, 5 Bligh, Hou. L. N. s. 339 to 421."

167 Before, 363-393.

168 In some of the states of the Union, special jurisdiction is given by statute to courts of law in cases of lunacy and idiocy.

10 Before, 378.