School of Law
LAW OF MARRIED WOMEN
CHARLES ALMY, Jr., and HORACE W. FULLER,,
OF THE SUFFOLK BAR.
PUBLISHED BY GEORaE B. REED.
By CHARLES ALMY, Je., a>T) HORACE W. FULLER.
PRDTTED AT THE UXIVERSITT PRE33,
"Even the disabilities which the wife lies under are for the most part
intended for her protection and benefit ; so great a favorite is the
female sex of the laws of England." — 1 Blackstone's Commentaries, 44o.
* "Nothing, I apprehend, would more conciliate the
good- will of the student in favor of the laws of England
than the persuasion that they had shown a partiality to
the female sex. But I am not so much in love with my
subject as to be inclined to leave it in possession of a
glory which it may not justly deserve. In addition to
what has been observed in this chapter by the learned
commentator, I shall here state some of the principal
differences in the English law respecting the two sexes ;
and I shall leave it to the reader to determine on which
side is the balance, and how far this compliment is sup-
ported by truth.
" Husband and wife, in the language of the law, are
styled haron and feme. The word baron, or lord, attrib-
utes to the husband not a very courteous superiority.
But we might be inclined to think this merely an un-
meaning technical phrase, if we did not recollect that if
the baron kills his feme it is the same as if he had killed
a stranger, or any other person ; but if the feme kills
her baron it is regarded by the laws as a much more
atrocious crime, as she not only breaks through the re-
* Mr. Christian's note.
straints of humanity and conjugal affection, but throws
off all subjection to the authority of her husband. And
therefore the law denominates her crime a species of
treason, and condemns her to the same punishment as if
she had killed the king. And for every species of trea-
son (though in petit treason the punishment of men was
only to be drawn and hanged), till the 30 Geo. III. c. 48,
the sentence of women was to be drawn and burnt alive.
" By the common law all women were denied the
benefit of clergy ; and till the 3 & 4 W. and M. c. 9, they
received sentence of death, and might have been exe-
cuted for the first offence in simple larceny, bigamy,
manslaughter, &c., however learned they were, merely be-
cause their sex precluded the possibility of their taking
holy orders ; though a man who could read was for the
same crime subject only to burning in the hand and a
few months' imprisonment.
" These are the principal distinctions in criminal mat-
ters. Xow let us see how the account stands with re-
gard to civil rights.
" Intestate personal property is equally divided be-
tween males and females; but a son, though younger
than all his sisters, is heir to the whole of real property.
"A woman's personal property by marriage becomes
absolutely her husband's, which, at his death, he may
leave entirely away from her ; but if he dies without
will, she is entitled to one third of his personal property
if he has children ; if not, to one half
" By the marriage, the husband is absolutely master
of the profits of the wife's lands during the coverture ;
and if he has had a living child, and survives the wife,
he retains the whole of those lands, if they are estates
of inheritance, during his life ; but the wife is entitled to
dower, or one tliird, if she survives, out of the husband's
estates of inheritance ; but this she has whether she has
had a child or not.
" But a husband can be tenant by the curtesy of the
trust estates of the w4fe, though the wife cannot be en-
dowed of the trust estates of the husband.
" With regard to the property of women, there is taxa-
tion without representation ; for they ]Day taxes without
having the liberty of voting for representatives; and,
indeed, there seems at present no substantial reason
why single women should be denied this privilege.
Though the chastity of women is protected from vio-
lence, yet a parent can have no reparation by our law
from the seducer of his daughter's virtue but by stating
that she is his servant, and that by the consequences of
the seduction he is deprived of the benefit of her labor ;
or where the seducer at the same time is a trespasser
upon the close or premises of the parent. But when by
such forced circumstances the law can take cognizance
of the offence, juries disregard the pretended injury, and
give damages commensurate to the wounded feelings of
" Female virtue, by the temporal law, is perfectly ex-
posed to the slanders of malignity and falsehood; for
any one may proclaim in conversation that the purest
maid or chastest matron is the most meretricious and
incontinent of women with impunity, or free from the
animadversions of the temporal courts. Thus female
honor, which is dearer to the sex than their lives, is left
by the common law to be the sport of an abandoned
" From this impartial statement of the account, I fear
there is little reason to pay a compliment to our laws
for their respect and favor to the female sex."
The note of Mr. Christian, given above, states
in a general way the condition of a married
woman at common law. There were many other
civil disabilities. The marriage was a merger
of her whole legal being with that of her hus-
band, who was responsible for her support, for
her torts, and for her crimes. She had no direct
control over her property, but could, in some
cases, bind that of her husband.
Courts of Equity relieved against many of
these disabilities. They allowed married women
to hold separate property through the medium
of a trustee ; in some cases enforced gifts and
contracts between husband and wife, and refused
to allow their aid to a husband in reducing prop-
erty of the wife to possession unless he settled a
suitable portion on her.
In 1787^ provision was made by the General
Court of Massachusetts for conveyances of real
estate and contracts of married women when
their husbands had absented themselves from
the state.2 By the Statute of 1842, c. 74, she
was allowed to make a will with the consent of
1 St. 1787, c. 32.
2 See also St. 1823, c. 146; St. 1833, c. 127 ; St. 1835,
c. 146 j R. S. c. 77.
her husband. In 1845Hhe first radical change
was made by allowing married women to hold
separate property without the intervention of a
trustee, and to sue and be sued on contracts
made with reference to such property as if sole.
In the next year^ it was provided that payment
of wages for their own work might be made to
married women, and that their receipt should be
a sufl&cient discharge.
In 1855^ the property, real and personal, of a
married woman before her marriage, and that
which came to her after marriage by descent,
devise, bequest, or gift of any person except her
husband, was made her separate property and
not subject to the debts of the husband. She
was allowed to sell personal property alone, and
real estate and shares in corporations with the
consent of her husband. She was allowed to
give by will one half of her personal estate, and
all her real estate, subject to her husband's life
interest by a will made without his consent. She
was allowed to carry on trade or business, and
sue and be sued in regard to it. In 1857 fur-
ther provisions to the same general effect were
1 St. 1845, c. 208. 2 St. 1855, c. 304.
2 St. 1846, c. 209.
made.^ The acts of 1845, 1846, 1855, and 1857
are substantially the provisions contained in the
General Statutes of 1860. The last legislation
was in 1874,^ under which the rights of married
women to contract, to make promissory notes, or
mortgages, to sell real estate, to sue and be sued,
are precisely the same as those of her husband,
except the difference between her dower and
his curtesy, of which neither can bar the other.
In 1877, and again in 1878, a bill was passed by
the Senate to legalize contracts between hus-
bands and wives, and providing that the wife
should own her wardrobe and articles of per-
sonal ornament, but it was defeated each year
in the House.
. 1 St. 1857, c. 249. 2 gt^ 1874, c. 184.
TABLE OF CONTENTS.
Who may Marry 17
TThat Marriages are Void 17
What Marriages are Voidable 20
How Married 21
Legitimacy of Issue 25
Ante-Nuptial Contracts 26
Post-Nuptial Settlements 28
What Property is Sole 31
Contracts of Married Women 35
Contracts between Husband and Wife ... 38
Separate Business 42
Partnership ........ 46
Married Women coming from other States, or abandoned
by their Husbands 47
10 TABLE OF CONTEXTS,
Conveyances of Real Estate 53
CRIMINAL LIABILITY. — TORTS. — ARREST.
Criminal Liability 61
Torts * . . . .63
Arrest on Civil Process 64
Condonation . . . . . . . .72
Foreign Divorces 76
Effect of an Absolute Divorce 77
Allowance Pendente Lite 78
Legitimacy of Issue 81
Provisions concerning Property .... 82
Custody op Minor Children 84
TABLE OF CONTENTS.
HOMESTEADS AND SETTLEMENTS.
provisions in case of INTESTACY.
Distribution of the Property of a Married Woman
Distribution of Property of Husband
Waiver of Provisions of Husband's Will
OTHER RIGHTS AND LIABILITIES,
Married Woman may be Executrix, &c.
Witness in Suits to which Husband is a Party
Right of Husband to Chastise Wife
Right of Husband to Services of Wife
Constitutional to Tax Women
A Woman cannot be a Justice of the Peace
A Woman may serve on the School Committee
Guardian for Married Women
Insanity of Husband or Wife
Support of Wife deserted by Husband
TABLE OF CASES CITED.
Abbott V. Wincbester
Adams v. Brackett
v. Palmer Co.
Albee v. Wyman
Cartwright v. Bate
Atbol' Machine Co. v.
Austin V. Cox
Bailey v. Bailey
Baldwin v. Bald-v\dn
Bancroft v. Curtis
30, 45, 57
Bartlett v. Bartlett
Bassett v. Bassett
Commonwealth v. Barry
Baxter v. Knowles
V. Briggs 85
Bemis v. Call
V. Burk 61
Bigelow V. Bigelow
Bigelow V. Hubbard
Blackinton v. Blackinton 28
Brettun v. Fox
Brigham v. Maynard
Bro'adstreet v. Broadstreet 67
Broderick v. Waltham Sav-
Brown v. Wood
Bullard v. Briggs
Bullock V. Bullock
Burlen v. Shannon
Biu-r V. Swan
Burroughs v. Xutting
Burroughs v. State Mutual
Life Ins. Co.
BmTows V. Purple
Butler V. Price
Cormerais v. Wesselhoeft 54
Cairns v. Cairns
Cairns v. Colbum
TABLE OF CASES CITED.
Crehore v. Crehore 20
Cunningham v. Reardon 50
Dillon V. Dillon 71
Donovan v. Donova 20
Dowe V. Smith 80
Durant v. Ritchie 53
Eames v. Sweetser
Eaton V. Eaton
Edgerlv v. Edgerly
Edwards v. Stevens
Eldred v. Eldred
Faucett v. Cmrier
Fera v. Fera
Feran v. Rudolphsen
Field V. Gooding
Fisk V. Ciishman
Foss V. Foss
French v. French
Gannon v. Housatonic R. R.
Gardner v. Gardner 72, 73
Gay V. Kingsley 39
Glass V. Glass 19
Gould I'. Emerson 100
Graves v. Graves 79
Hall V. Hall 70
Hall y. Weir 48, 49
Handy v. Foley 63
Harriman v. Gray 45
Harteau v. Harteau 67
Hawkins v. Prov. & Wor.
R. R. 28, 33
Hay ward v. Cain 57
Heburn v. Warner 58, 59
Hills V. Bearse 54
Holt 1-. Holt 71
Hood V. Hood 67
Ingham v. White 39
Jacobs V. Hesler 31, 102
Jenkins v. Dawes 103
Jenkins v. Holt 27
Knickerbocker Life Ins. Co.
V. Weitz 100
I Lawrence v. Bartlett 27
j Lawson v. Lawson 30
Lea V. Lea 70
Legg V. Legg 32
' Leggate v. Clark 54
i Libby v. Chase 57
j Livingston v. Livingston 41
Long V. Drew 44
Lord V. Parker 46
Lowell V. Daniels 54
Lyon V. Lyon 76
Lyster v. Lyster 70
Magrath v. Magrath 70
Major V. Holmes 37
I Manby v. Scott 49
Mansfield v. Mansfield 67
Marshall v. Berry 94
Mason v. Bowles 44
May hew v. Thaver 49
McCarty v. De Best 63
McCluskey v, Prov. Inst, for
Savings 28, 33
McGregor v. Wait 51
Melvin v. Proprietors &c. 55
Mercier v. Chase 90, 91
Merriam v. B. C. & F. R. R. 54
Merriam v. Cunningham 48
Merrick v. Plumley 51
Merrill v. Parker 45
Meyers v. Pope 24
Milford V. Worcester 23
Miller v. Goodwin 27
Model &c. Ass. v. Boston 60
Moors V. Moors 75
Motte V. Alger 29, 30
Mulhern v. McDavitt 50
Xourse v. Henshaw
I Opinion of Justices
Page I'. Trufant
Paine v. Farr
TABLE OF CASES CITED.
Parton v. Hervey
Stetson V. 0' Sullivan
Peabody v. Peabody
Stuart V. Stuart
Peabody v. School Com.
Sullings V. Richmond
Sulhngs V. Sullings
Pease v. Allis
Swan V. Snow
Perkins v. Richardson
Sweeney v. Boston Five
Phillips V. Frye
Cents Savings Bank
Pierce v. Chace
Pierce v. Thompson
Tarbell v. Tarbell
Plumer v. Lord
Thomson v. O'Sullivan
Proper v. Cobb
Thurston v. Thurston
Towle V. Towle
Eaynes v. Bennett
Townsley v. Chapin
Tucker v. Fenno
Turner v. Nye
Reemie v. Reemie
Reiman v. Hamilton
Unity Ass, v Dugan
Reynolds i?. Reynolds
Reynolds v. Sweetser
Wales V. Coffin
Walker v. Walker
Robbins v. Robbins
Wallingsford v. Allen
Robbins v. Potter
Walsh V. Young
Robinson v. Trofitter
Warner v. Cronch
Roby V. Phelon
Webster v. Potter
Rogers v. Rogers
Weed Sewing Mach. Co.
Rogers v. Ward
Westgate v. Munroe
Savage v. "Winchester
^Vheeler v. Wall
Sewall V. Sewall
"S^Tiite V. Graves
Shaw V. Shaw
White V. T\Tiite
Shepard v. Shepard
Whitney v. "\^'^leele^
Silsby V. Bullock
Wight V. Shaw
Slawson v. Loring
Wilder V. Richie
Smith V. Smith
Willard v. Eastham 35
, 36, 59
Smith V. Sweet
Willey V. Beach
Snow V. Paine
Wilhams v. Hayward
WilUams v. Williams
Southwick V. Southwick
Sparhawk v. Sparhawk
Worcester v. Marchant
Spaulding v. Day
Stearns v. 0' Sullivan
Yale V. Wheelock
Stearns v. Bullens
TABLE OF STATUTES CITED.
Gen. St. Chap. 58 99
« " " 90 97
" « « 94 95,96,97,102
« " " 96 33,97
" " '« 104 90, 91
« « " 106 17,19,21,22,23
« " « 107 19, 20, 21, 25, 65, 66, 67, 68, 69, 70, 75, 76,
77, 79, 80, 81, 82, 86, 87, 88
" " " 108 26, 27, 28, 30, 32, 35, 42, 47, 53, 56, 93, 108
« « " 109 84,85
« « " 124 64
" " " 155 103
« " '' 161 63
" « " 165 18,19
«t « « 168 63
St. 1861 Chap. 164 98
« 1862 " 116 109
" " " 162 64
" " « 198 43,62
" 1863 " 165 46
"1864 « 197 99
" « " 198 94
« « « 276 94
« 1866 " 148 80
"1867 " 58 21
« « " 222 75
16 TABLE OF STATUTES CITED.
St. 1867 Chap. 248 27
"1868 " 95 34
"1869 " 292 26
« " " 409 102
" 1870 " 393 102
" " " 404 68, 69, 71, 82
" 1871 " 97 98
'< « " 200 98
" 1873 " 58 98
" « " 367 85
" " « 371 69,75,77,79,87
« 1874 " 184 32, 46, 101
« " " 205 86,105
« " " 389 107
« « " 397 75
"1875 " 226 75
"1876 " 220 96
" 1877 « 83 95
" " " 1 74 65
" « " 178 79,83
<' 1878 " 199 109
« « " 260 85
LAW OF MARRIED WOMEN
WHO MAY MARRY.
All persons subject to the exceptions here-
inafter enumerated are capable of binding them-
selves in marriage who have arrived at the age
of consent, which, in this commonwealth, as
by the common law, is twelve in females and
fourteen in males. A marriage between two
infants of or above these ages is valid, even
without the consent of the parents or guar-
dians,-^ although the statutes impose a penalty
upon any magistrate or minister who performs
the ceremony in such case.^
WHAT MARRIAGES ARE VOID.
Chapter 106 of the General Statutes provides
that no woman shall marry her father, grand-
^ Parton v. Hervey, 1 Gray, 119.
2 GeD. St. c. 106, §§ 13, 18.
18 LAW OF MARRIED WOMEN.
father, son, grandson, step-father, brother, grand-
mother's husband, daughter's husband, grand-
daughter's husband, husband's fatlier, husband's
grandfather, husband's son, husband's grandson,
brother's son, sister's son, father's brother, or
mother's brother ; and in the cases mentioned
in which the relationship is founded on mar-
riage, tlie prohibition continues, notwithstand-
ing the dissolution of such marriage by death
or divorce, unless the divorce is for a cause
which shows the marriage to have been origi-
nally unlawful or void.
Xo insane person or idiot is capable of con-
No woman having a former husband living
(unless she has been divorced from him) can
contract another marriage.
Not only are marriages within the degrees of
consanguinity mentioned above prohibited, but
parties so marrying render themselves liable to
All marriages solemnized within this com-
monwealth, which are prohibited by law on
account of consanguinity or af&nity between
the parties, or on account of either of them
1 Gen. St. c. 165, § 7.
having a former husband or wife then living, or
when either party was insane or an idiot, are
void without any decree of divorce or other
If persons resident in this commonwealth, in
order to evade the provisions prohibiting mar-
riages on account of consanguinity, affinity,
insanity, or idiocy, with an intention of return-
ing to reside in this state, go into another state
or country, and there have their marriage sol-
emnized, and afterward return and reside here,
the marriage will be deemed void in this state.^
A form of marriage, entered into by the par-
ties in good faith, and with a full but erroneous
belief of the death of the actual husband or wife
of either of the parties, is void, although such
husband or wife has been absent, and not known
to be alive, for seven years ;^ but in such case
the party would not be guilty of polygamy.^
The belief of the guilty party in a case of
divorce that he has a right to marry again in
the lifetime of the other party, without leave of
1 Gen. St. c. 107, § 1.
2 Gen. St. c. 106, § 6 ; Com. v. Lane, 113 Mass. 458.
* Glass V. Glass, 114 Mass. 563.
* Gen. St. c. 165, § 5.
20 LAW OF MARRIED WOMEX.
court, does not render such marriage valid, and
it cannot be made valid by a special act of the
legislature, as such act would be unconstitu-
If the parties to a marriage, solemnized when
either of them was under the age of consent,
separate during such nonage, and do not after-
wards cohabit, the marriage will be void without
a decree of divorce or other legal process.^
WHAT MARRIAGES ARE VOIDABLE.
Fraud vitiates all contracts, and the contract
of marriage is no exception to this rule. A
marriage procured by force or fraud will, upon
application to the court, be decreed to be null
and void ; so, if a marriage is supposed to be
void, or the validity thereof is doubted for fraud
or other cause, either party may file a libel for
annulling the same.^
So also, when the validity of a marriage is
1 WTiite V. White, 105 Mass. 325.
2 Gen. St. c. 107, § 3.
^ Ibid. § 4. See Reynolds v. Reynolds, 3 Allen, 605 ;
Donovan v. Donovan, 9 Allen, 140 ; Foss v. Foss, 12 Allen,
26 ; Crehore v. Crehore, 97 Mass. 330.
denied or doubted by either party, the other
party may file a libel for afiQrming the mar-
Persons intending to be joined in marriage
shall before their marriage cause notice thereof
to be entered in the office of the clerk or regis-
trar of the city or town in which they respec-
tively dwell, if within the state. If there is no
such clerk or registrar in the place of their
residence, the entry shall be made in an adjoin-
ing city or town.^
If they live without the commonwealth, and
intend to be joined in marriage within the
commonwealth, this notice of their intention
must be entered with the clerk or registrar of
the city or town in which they propose to have
the marriage solemnized.^
The clerk or registrar must thereupon deliver
to the parties a certificate specifying all facts in
relation to the marriage required by law to be
ascertained and recorded, and this certificate
shall be delivered to the minister or magis-
1 Gen. St. c. 107, § 5. s g^.^ 13(37^ c. 58, § 1.
2 Gen. St. c. 106, § 7.
22 LAW OF MARRIED WOMEN".
trate before lie proceeds to solemnize the mar-
Any person applying for such certificate, who
wilfully makes a false statement in relation to
the age, residence, parent, master, or guardian
of either of the parties intending marriage, shall
forfeit a sum not exceeding two hundred dollars.^
^Yhen a marriage is solemnized in another
state between parties living in this state, and
they return to dwell here, they must, within
seven days after their return, file with the clerk
or registrar of the city or town where either of
them lived at the time, a certificate or declara-
tion of their marriage, including the facts con-
cerning marriages required bylaw, and for every
neglect they shall forfeit ten dollars.^
Marriages may be solemnized by a justice of
the peace in the county for which he is appointed
when either of the parties resides in the same
county, and by a minister of the gospel through-
out the state • but all marriages shall be solem-
nized in the city or town in which the person
solemnizing them resides, or in which one or
both of the persons to be married reside.*
1 Gen. St. c. 106, § 8. « Ibid. § 12.
2 Ibid. §11. -♦ Ibid. § U.
Marriages among Quakers or Friends may be
solemnized in the manner heretofore used and
practised in their societies.-^
No marriage solemnized before a person pro-
fessing to be a justice of the peace, or minister
of the gospel, shall be deemed or adjudged to
be void, nor shall the validity thereof be in any
way affected, by want of jurisdiction or author-
ity in such person, or by an omission or infor-
mality in the manner of entering the intention of
marriage, if the marriage is in other respects
lawful, and is consummated with a full belief^
on the part of the persons so married, or either
of them, that they have been lawfully joined in
No peculiar ceremonies are requisite, and no
form of words is established, for the solemniza-
tion of marriage. The consent of the parties is
the great essential, and it is sufficient if they
contract in some form or other before a justice
of the peace for the county in which either of
them resides, or a minister who resides within
the state, and he assents to the proceeding, act-
ing in his official capacity.^
1 Gen. St. c. 106, § 15. » Milford v. Worcester, 7 Mass. 48.
2 Ibid. 6 20.
24 LAW OF MAEEIED WOMEN.
It lias been held that the actual assent of
the magistrate or minister is not necessary if
the contracting parties really believe that he
In this case the parties went before a justice
of the peace, with the intent on the part of both
to contract marriage before him. The man sim-
ply stated that the woman was his wife, and
they then departed and afterward lived together
as man and wife, both belie\dng themselves law-
fully married. The court held this to be a valid
marriage, notwithstanding the justice testified
that he did not understand that he married the
parties, and that all that was said by either of
them was that the man introduced the woman
as his wife.
This seems to go to the extreme limit of
liberality in the construction of Gen. St. c. 106,
§ 20, which provides that a marriage is not to be
" deemed or adjudged void, nor shall the valid-
ity thereof be in any way affected by want of
jurisdiction or authority in such person (that is
to say, a person professing to be a minister or
justice of the peace), or by an omission or in-
formality in the manner of entering the inten-
1 Meyers v. Pope, 110 Mass. 3U.
tion of marriage, if the marriage is in other
respects lawful, and is consmnmated with a full
belief on the part of the person so married, or
either of them, that they have been lawfully
joined in marriage."
LEGITIMACY OF ISSUE.
The issue of a marriage dissolved by a divorce
or sentence of nullity, on account of consan-
guinity or affinity between the parties, wdll be
deemed to be illegitimate.-^
The issue of a marriage dissolved on account
of the nonage, insanity, or idiocy of either party
will be deemed to be the legitimate issue of
the parent who was capable of contracting the
When a marriage is dissolved on account of a
prior marriage of either party, and it appears
that the second marriage was contracted in
good faith, and with the full belief of the par-
ties that the former husband or wife was dead,
the issue will be deemed the legitimate issue of
the parent capable of contracting the marriage.^
1 Gen. St. c. 107, § 28. = Ibid. § 29. ^ Ibid. § 30.
26 LAW OF MARRIED WOMEN.
It is provided by statute that at any time
before their marriage the parties may enter into
a contract in writing, providing that after the
marriage the whole or any part of the estate,
real or personal, of either, or any right of action
of either, shall remain or become the property
of the husband or wife according to the terms of
the contract.-^ A female minor above the age of
eighteen years may join with her guardian in
making such a contract, in which case it will
have the same effect as if she were of full age.^
There must be annexed to the contract a sched-
ule containing a clear description of the prop-
erty to be affected by it, and both contract and
schedule must be recorded within ninety days
from the marriage, in the Registry of Deeds
for the county where the husband lived at the
^ Gen. St. c. 108, § 27. = St. 1869, c. 292.
CONTRACTUAL POWERS. 27
time of tlie record, or if lie was not a resident
within this state, for the county where the wife
resided at the time of the record, if it is recorded
before marriage, or in which she last resided, if
recorded after the marriage, and also in every
county or district in which there are lands to
which it relates. If not so recorded, it is void,
except between the parties to it.-^ But when
the contract relates only to the rights which the
survivor may claim in the estate of the other
after the marriage relation has been ended by
death, its validity does not depend on the stat-
ute, and it need not be recorded?
The contract must be enforced in equity,
where specific performance may be decreed,^ if
it was entered into understandingly,* but not in
favor of a party whose part of the contract has
not been performed.^ Although it provides that
the wife shall make no claim on her husband's
estate after his death, it is no bar to a claim in
1 Gen. St. c. 108, § 28; St. 1867, c. 248.
2 JenUns v. Holt, 109 Mass. 261.
^ Miller v. Goodwin, 8 Gray, 542 ; Lawrence v. Bartletty
2 Allen, 36.
* Tarhell v. Tarhell, 10 Allen, 278.
^ Sullings v. Sullings, 9 Allen, 234.
28 LAW OF MARRIED WOMEN.
the Probate Court for an allowance for necessa-
ries/ or for a distributive share of the estate.^
As, by the common law, the property of the
wife was absolutely vested in the husband by
the marriage, of course she could take no legal
title from him by a direct gift.^ And the statutes
providing for the holding of separate property
by married women expressly provide that noth-
ing in them shall authorize a husband to give
or convey property to his wife.* But such
a gift of personal property, if kept distinct
and separate by the wife, and not mixed with
his property, so that it cannot be distinguished,
will be good after his death against his legal
representatives^ or legatees,^ but not against
^ Blackinton v. BlacMnton, 110 Mass. 461.
^ Sullings V. Richmond, o Allen, 187.
* Thomson v. 0' Sullivan^ 6 Allen, 303; Baxter v.KnowleSy
12 Allen, 114; HawJcins v. Providence and VTorcester R. R.,
119 Mass. 596.
* Gen. Sts. c. 108, § 10.
^ Adams v. Bracl-etf, 5 Met. 280 ; McChiskey v. Frov. Inst
for Savings, 103 Mass. 300.
^ Fisk V. Cushman, 6 Gush. 20.
COXTRACTUAL POWERS. 29
creditors, and he can reduce it to possession
at any time before his death.-^ This rule as
to reduction to possession seems to have been
broken in upon by a later decision, that a man
who has deposited money in a savings bank
in the name of his wife cannot maintain an
action against the bank for it, after notifying
them that it was his.^ It is difficult to reconcile
this decision, either with Toivle v. Toidef or with
BrodericJc v. Waltham Savings BanJc^ in which one
who deposited in the name of another not his
wife was allowed to maintain an action against
the bank for the amount of his deposit.
A conveyance of real estate directly from
husband to wife is absolutely void at law.'^ But
^ Towle Y. Toii'Ie, 114 Mass. 167; Fisk v. Cuskman, 6
^ Sweeney v. Boston Five Cents Savings Bank, 116 Mass.
* 109 Mass. 149.
^ Thomson v. 0' Sullivan, 6 Allen, 303 ; Motte v. Alger,
15 Gray, 322. But if the husband, after mortgaging his
land, sells his equity, his wife can buy at the mortgagee's
sale. Field y. Gooding, 106 Mass. 310. A wife who buys
real estate belonp^ino' to her husband at a sheriff's sale takes
no title to it. Stetson v. 0' Sullivan, 8 Allen, 321.
30 LAW OF MARRIED WOMEN.
the pro\dsion in the statute against conveyances
from husband to wife -^ does not prevent a con-
veyance by him to her of either real or personal
property, through a third person, which was
good at common law,^ unless he was insolvent
at the time of making it/ in which case it will
be good against creditors of her husband, if
it was for a valuable consideration, as, for in-
stance, her releasing dower in another estate *
Nor does the statute prevent a husband from
making a valid donatio causa mortis to his wife, as
it would not be construed to render invalid what
was before held to be valid.* But although a
deed of real estate from the husband directly to
his wife is void at law, it is possible that a court
of equity would uphold it as a good declaration
of a trust.^
If a woman pays money out of her separate
1 Gen. St. c. 108, § 10.
2 Motte V. Alger, 15 Gray, 322.
^ Billiard Y. Briggs, 7 Pick. 533 ; Peirce v. Thompson, 17
Pick. 391 ; Bancroft v. Curtis, 108 Mass. 47.
^ Wldtney v. Wheeler, 116 Mass. 490; Lawsonx. Laivson,
1 P. Wms. 441.
^ See 1 Perry on Trusts, § 95 ; 2 Kent Com. 129, note c;
Wallingsford v. Allen, 10 Peters, 583, 594 ; Shepard v.
Shepard, 7 Johns. Ch. 57 ; Coates\. Gerlach, 44 Penn. St. 43.
CONTRACTUAL POWERS. 31
estate to her husband, it will be deemed, in the
absence of proof, to have been given to him
with the intention that it should be applied to
the use or benefit of either or both of them at
his discretion, and she cannot recover it back
from his executor.^ But the husband can re-
turn money placed in his keeping by his wife,
and the transaction will not be a gift, but, if
free from any fraudulent intent, will be good
against creditors.^ If it can be shown that the
husband took the money from his wife to hold
in trust for her, a court of equity will give her
WHAT PROPERTY IS SOLE.
At common law, by marriage all the personal
property of the woman absolutely vested in her
husband. All her choses in action might be
reduced to possession at any time during the
marriage, but if they were not, on the dissolu-
tion of the marriage, either by the death of the
husband or by a divorce, they remained the
^ Jacobs V. Hesler, 113 Mass. 157.
^ Snovj V. Paine, 114 Mass. 520.
» Walker V. Walker, 9 Wall. 743, 753.
32 LAW OF MAERIED WOMEN.
property of the wife.^ The only way in which
she could have any separate estate was through
the medium of a trustee. And even now, in the
absence of all proof, the presumption is that any
goods or money held by the wife belongs to
the husband. The enabling statutes do not do
more than allow this presumption to be rebut-
ted.^ But any property of which a woman was
possessed before marriage, and any that comes
to her by descent, devise, bequest, grant, or gift
from any one, except her husband, that which
she acquires by her business or labor on her
separate account, and that which she receives
for releasing dower by a deed subsequent to the
conveyance of her husband, and the rents and
profits of the same, after marriage, are her
separate property, free from the control of her
husband, and from liability for his debts.^ All
work and labor done by her for others than
her husband and children is, unless there is an
express agreement on her part to the contrary,
presumed to be on her separate account."* If
she purchases property with her own means,
1 Legg v. Legg, 8 Mass. 99. ^ St. 1874, c. 184, § 1.
2 Com. V. Williams, 7 Gray, 337.
8 .Gen. St. c. 108, § 1.
COXTRACTUAL POWERS. 33
and upon her own credit exclusively, it be-
comes her own, and the only question is from
whom the consideration proceeds. There is no
need of any words in the conveyance of per-
sonal property limiting it to her separate use,
and probably not in a deed of real estate.^ But
if she mixes her money or other personal prop-
erty with that of her husband, so that it can-
not be separated and ascertained, she thereby
loses all control over it.^ Similarly, if a husband
builds a house on land belonging to his wife,
it belongs to her, and as they cannot contract
with each other, he will not be heard to say
there was any agreement by which it was to
On the other hand, property purchased with
the money of the husband, though intended
exclusively for the use of the wife, as articles of
clothing or personal ornament, belongs wholly
to him.* But after the death of the husband the
apparel and ornaments of the widow and minor
children belong to them.^
•^ Spaulding v. Day, 10 Allen, 96.
^ McClv.shey v. Prov. Inst, for Savings, 103 Mass. 300.
3 Webster v. Fatter, 105 Mass. 414.
^ Hawkins v. Frov. d; Worcester R. R., 119 Mass. 596.
« Gen. St. c. 96, § 4.
34 LAW OF MARRIED WOMEX.
The husband may be a trustee for his wife.
Manual possession by him of her personal prop-
erty is not necessarily inconsistent with her
separate title. Probably he can be charged in
trustee process, but only for property in his
hands specifically as the separate property of
his wife at the time of service of process upon
him. The previous receipt of money, under cir-
cumstances which would make him liable to any
other person for "money had and received/'
would not alone be sufficient to charge him as
trustee for his wife in an action at law, because
the relation of debtor and creditor cannot sub-
sist between them. Such a remedy at law, of
so limited and uncertain character, is not plain,
complete, or adequate, and a bill in equity will
lie to charge the husband as trustee.-^
No j)erson can be adjudged a trustee by
reason of any money or credits in his hands,
due for the wages of the personal labor or ser-
vices of the wife or minor children of the defend-
ant in trustee process.^ Any one who wilfully
causes, or aids and abets in causing, such wages
to be attached by trustee process, for the pur-
^ Rohiiison V. Trofitter, 109 Mass. 478.
2 St. 1868, c. 95.
CONTEACTUAL POWERS. 35
pose of delaying their payment, is liable to a
fine not exceeding fifty dollars.-^
CONTRACTS OF MARRIED WOMEJT.
At common law the husband assumed by
marriage all the debts of his wife, and his goods
or body could be taken on a judgment for her
debt contracted before marriage. Any right of
action against her was suspended during the
coverture, but was revived by the death of her
husband. Any contract made by her after mar-
riage was absolutely void at law, though fre-
quently sustained in a court of equity, as a
charge upon her separate estate.^
By the Gen. St. c. 108, a married Avoman was
made liable on causes of action which arose
before the marriage, and her husband was re-
lieved of his liability for them.^ She was also
allowed to make contracts with reference to her
separate property, and sue and be sued on them
as if sole. If the contract did not relate to her
^ St. 1878, c. 260, § 2.
2 See Willard v. Uastham, 15 Gray, 328 ; Rogers v. Ward,
8 Allen, 387.
3 Gen. St. c. 108, § 8.
36 LAW OF MARRIED WOME^.
separate property it was void. It was held that
a woman who signed a bail-bond as surety for
her husband was not liable on it.-^ Payment of
a note given by a wife for the debt of her hus-
band without any consideration received by her
or any benefit to her separate estate, could not
be enforced at law,^ nor in equity, as a charge
on her separate estate.^ But a note given in
payment of work done on land owned by a
woman and her husband jointly was held to be
a contract with reference to her separate prop-
erty.* If work is done on the separate property
of a married woman with her knowledge, it is
evidence that she agreed to pay for it, but raises
no presumption of law that she did so.^
By the Statute of 1871, c. 304, a married
woman was allowed to make contracts for neces-
saries to be furnished for herself or family, and
to sue and be sued thereon as if sole ; but the
act provides that this should not exempt the
^ Yale V. Wkeelock, 109 Mass. 502.
^ Athol Machine Co. v. Fuller^ 107 Mass. 437 ; Williams v.
Hayivard, 117 Mass. 532.
3 Willard V. EastJiam, 15 Gray, 328.
4 Burr Y. Swan, 118 Mass. 588.
5 Westgate v. JIunroe, 100 Mass. 227.
CONTRACTUAL POWERS. 37
husband from his common-law liability for the
support of his wife and family.
The Statute of 1874, c. 184, removed the
restriction as to separate property, and allowed
a married woman to sue and be sued on all
contracts, except with her husband, as if sole.
Under it the rights and liabilities of a wife as to
contracts seem to be precisely the same as those
of the husband. But it does not make her liable
on any contracts made before its passage, which
were void when made.-^ Since that statute the
wife has been held liable on a joint note by her
and her husband, although the consideration for
the note was a debt of the husband.^ But as
the husband and wife are incapable of contract-
ing with, or suing each other, no contract of
indemnity can be made or implied in such case
between them, as there might be in the case of
strangers.^ If a loan is made to a married
woman upon her credit, evidence that it was
known, or understood, by the plaintiff, that she
intended to apply the money to the benefit of
the business of her husband is immaterial, and
^ Cram v. Kelley, 7 Allen, 250.
^ Major V. Holnies, 5 Reporter, 334 ; 124 Mass.
38 LAW OF MAERIED WOMEN.
she is liable.^ But if the loan is made upon an
agreement that it shall be applied to the use or
benefit of her husband, or his firm, she is not
liable on a note given by her for it prior to
the Statute of 1874, c. 184.^
CONTEACTS betwee:n" husba:nt) and wife.
The husband and wife can make no valid
contracts with each other. This is the doctrine
of the common law, and is carefully preserved
in all the statutes regarding married women.
It is based on public policy, and is for the
prevention of domestic infelicity, which might
result from suits between husband and wife.
The fact that the parties have cohabited as hus-
band and wife does not estop the plaintiff from
denying the validity of the marriage.^
If the husband borrows money of his wife,
promising to repay it, he cannot be forced to do
so by an action on the contract, for that has no
validity. Nor can he be sued in tort for a con-
version of the money.
^ Wildej^ Y. I^ichie, 117 Mass. 382.
^ Kourse v. Ilenshaw, 123 Mass. 96.
« Rohhins v. Potter, 98 Mass. 532.
* Bassett v. Bassett, 112 Mass. 99.
CONTRACTUAL POWERS. 39
A note given by the husband to his wife, or
by the wife to her husband, is absolutely void at
laWj even in the hands of hona fide holders.^ But
if the Avife makes a note payable to the order
of her husband, and he indorses it to a third
party, he may possibly be estopped to deny its
validity if sued as indorser.^ It has been held
that a wife may be a conduit to pass the title to
her husband's note, but some doubt has been
thrown on the case, and it is difficult to sup-
port it on principle.^ By the indorsement of the
husband to his wife no title vests in her, but it
remains in him.^
If a note made by either husband or wife
before marriage comes into the possession of
the other after marriage, it becomes a nullity,
and cannot be enforced against the personal rep-
resentatives after death, nor will it be revived
by indorsement to a third party.^ But if the
^ Ingham v. White, 4 Allen, 412; Turner v. Xye, 7 Allen,
176 ; Chapman v. Kellogg, 102 Mass. 246 ; Rohy v. Phelon^
118 Mass. 541.
2 Roby V. Phelon, 118 Mass. 541.
^ Slawson V. Loring, 5 Allen, 340. See Rohy v. Phelon^
* Gay V. Kingsley, 1 1 Allen, 345.
^ Chapman v. Kellogg, 102 Mass. 246 j Abbott v. Winches-
ter, 105 Mass. 115.
40 LAW OF MARRIED WOMEX.
beneficial interest only is vested in the wife, if
the legal title has not been transferred to her,
the notes may be proved against the estate of the
maker in insolvency.-^
How far a contract between husband and wife
will be upheld in equity has not been deter-
mined in this commonwealth. In Turner v.
Nf/e,^ it was held, on a bill of interpleader,
that an administrator could not pay a note
given by his intestate to his wife, where there
was no consideration for the note, the money
advanced by the wife not having been her
separate property. Nor could the note be
considered a good declaration of trust to hold
the husband as trustee for his wife. In Phillips
V. Fryef the husband executed a note and
mortgage to a third person as trustee for his
wife, there being no consideration for the note.
It was held that his administrator could not
be allowed in his account for having paid the
note, on the ground that a mere meritorious
consideration, as a provision for a wife or child,
is not recognized by courts of equity as suffi-
cient to require the enforcement of an executory
^ Stearns v. Bullens, 8 Allen, 581.
2 7 Allen, 176. ^ j^ ^^^gj,^ 35^
CONTRACTUAL POWERS. 41
contract. It has been held in the District Court
of the United States for the District of Massa-
chusetts, that a bankrupt's wife, who had ad-
vanced her husband money out of her separate
property, which was intended as a loan, and not
as a gift, could prove against his estate for the
amount advanced, on the ground that courts of
equity will enforce contracts between husband
and wife entered into for good consideration.^
It is settled in England that courts of law
and equity will enforce covenants of a husband
with a trustee for the support of the wife in
articles of separation where the separation ex-
ists already, or is to be immediate, but not in
articles in contemplation of future separation,
and this has been recognized and followed in
the courts of many of the states of this coun-
try.^ It is still an open question in Massachu-
setts. In Page v. Trufant^ the action was on a
bond, given to the father of the wife by the
^ Re Blandin, 1 Lowell, 543 ; Re Richards, April, 1878.
See also Livingston v. Livingston, 2 Johns. Ch. 537 j Shepard
V. Shepard, 7 Johns. Ch. 57 ; Robinson v. Trofitter, 109 Mass.
^ Homer, arguendo in Alhee v. Wyman, 10 Gray, 222.
2 2 Mass. 159.
42 LAW OF MARRIED WOMEX.
husband, for the support of the wife, and it
was held the action lay. In Albee v. W^man,^
the question was raised but not passed on,
though the court (Dewey, J.) remarked that
such a contract was " obnoxious certainly to
very grave objections, arising from the relations
of the respective parties, and the impolicy of
furnishing facilities for a continued separation
of those whose solemn obligations and duties
have united them as members of one family."
In Blgelotu v. Hiibhardf it was held that an
agreement of separation between husband and
wife and a trustee for the wife, by which it was
provided that the husband should pay to the
wife a certain sum yearly, which she was to
receive in full for all her claims on him, for sup-
port during his life, and " all her claims upon
his estate after his death," could be waived by
the wife, and her dower insisted on in the place
of it after his death.
A married woman may carry on any trade or
business on her sole and separate account.'^ But
1 10 Gray, 222. 3 ^^^^ g^, c. 108, § 3.
2 97 Mass. 195.
CONTRACTUAL POWERS. 43
she must file in the clerk's office of the city or
town where she does or proposes to do business,
a certificate setting forth the name of her hus-
band, the nature of the business proposed to be
done, and the place where it is to be done, giv-
ing the street and number, if practicable ; and
whenever the place of business or the nature of
the business is changed, a new certificate must
be filed accordingly.^ If the woman does not
file this certificate, her husband may file one
containing a similar description of the business.^
If no certificate is filed, the wife will not be al-
lowed to claim any property employed in such
business against creditors of her husband, and
her husband will be liable upon all contracts law-
fully made in the prosecution of such business,
in the same manner and to the same extent as
if made by himself.^ Even if exclusive credit
was given to the wife, the husband is liable if
the certificate has not been filed.* The certifi-
cate will not be invalidated by not containing a
recital of the property to be protected by it, or
by an incorrect statement in regard to it. Nor
1 St. 1862, c. 198, § 1.
' Ibid. § 2. 3 ibi(j^
* F trail V. Rudolphsen, 106 Mass. 471.
44 LAW OF MAEPJED WOMEN.
will the flict that there was an intermingling of
the property of husband and wife defeat the
The certificate is intended to protect the
jDroperty of the wife, and will not protect that
of the husband from attachment by his cred-
itors.^ It is a question of ffict whether the
goods belong to the husband, and the facts that
the lease is taken in the husband's name, that
the signs at the shop door are also in his name,
and that notes given in payment of goods at
the shop are signed by him, are not conclusive
evidence that the goods are his, if the certificate
has been duly filed.'^
The object of the Statute of 1862, requiring
the certificate to be filed, was to afford the
means of ascertaining in which of two persons,
apparently' in the possession and use of property
in carrj'ing on any kind of trade or occupation,
the title is vested, so that all having occasion
to transact business with either may regulate
their dealings accordingly. Keeping a board-
ing-house * or a private school '" is carrying on
^ Lo)}g V. D)'eu', 114 Mass. 77.
2 Jfaso}i V. Bowles, 117 Mass. SQ. ^ Ibid.
^ Chapman v. Briggs, 1 1 Allen, 546.
^ Feran y. JRudolphsen, 106 Mass. -171.
CONTRACTUAL POWERS. 45
such a business that a certificate must be filed
to protect the property of the wife, or relieve
the husband from liability for her contracts.
But keeping a colt for use, or buying materials
with which to build a house, is not a separate
business under the statute.-^
The nature of the business need not be de-
scribed with great particularity, but it is suffi-
cient if the descrijDtion is such as to make it
intelHgible to the jury what the business is. A
certificate of " the general business of saloon-
keeper '* is not in law insufficient.^ If prop-
erty is contained in more than one building,
both must be described in the certificate, as only
that contained in the building named is pro-
tected.^ The statute applies to personal prop-
The neglect of a married woman to file the
certificate required by the statute gives her
husband no authority to sell or mortgage her
property. But she may ratify a mortgage
which her husband has previously made.^
1 Proper v. Colh, 104 Mass. 589.'
^ Cahill V. Camjjhell, 105 Mass. 40.
^ Harriman v. Gray, 108 Mass. 229.
* Bancroft v. Curtis, 108 Mass. 47.
^ Merrill Y. Parker, 112 Mass. 250.
46 LAW OF MARRIED TVOMEN.
A married woman cannot be a partner in the
same firm with her husband/ nor can she sus-
tain an action against partners of whom her hus-
band is one, to recover for services performed
for them, as this would be giving effect to a
contract between husband and wife.^ She may
belong to a partnership, and be bound by a
promissory note given in the partnership name,
if her husband is not a member of the same
firm,^ but if her husband is a partner, she can-
not be liable on a note in the name of the firm.*
And she will not be estopped to deny that she
is a member of the firm by any statements she
may have made in regard to it,^ unless possibly
if a wilful intent is shown to induce the party
to act on the faith of the alleged statement.
Between 1863 and 1874 she was not allowed to
be a co-partner with any one.^
^ LordM. Parker, 3 Allen, 127.
^ Edwards v. Stevens, 3 Allen, 315.
^ Plumer v. Lord, 5 Allen, 460.
* Plumer v. Lord, 7 Allen, 481.
^ Plumer v. Lord, 9 Allen, 455.
^ St. 1863, c. 165; St. 1874, c. 184.
CONTK ACTUAL POWERS. 47
MAKEIED WOMEN COMING FROM OTHER STATES,
OR ABANDONED BY THEIR HUSBANDS.
It is provided by the General Statutes ^ that
married women coming from other states, or
abandoned by their husbands, who have left the
state, may contract and sue and be sued as if
sole. These provisions are superseded by the
Statute of 1874, c. 184, which gives the same
powers to all married women.
If a person sells goods to a woman who is
living with her husband, he can hold the hus-
band liable for them, either by proof that he,
expressly or impliedly, authorized the purchase,
or by proof that he refused or neglected to pro-
vide a suitable support for the wife, and that
the goods sold were necessaries.^ In the latter
case the burden of proof is upon the plaintiff
to show that the husband refused or neglected
to suj^ply the wife with what was necessary for
1 Gen. St. c. 108, §§29, 31-35.
2 Eay7ies v. Bennett, 114 Mass. 424.
48 LAW OF MAERIED WOMEX.
decency or comfort in liis condition of life, and
that the goods sold were such as the reason-
able necessities of the wife required her to have.-^
This rests on the ground that the wife has an im-
plied authority, derived from the legal duty of
the husband to make suitable provision for her
and her children, to act as his agent and pro-
cure such supplies as might be necessary on his
It is the province of the court to determine
whether the articles sued for are within the
class of necessaries, and if so it is the proper
duty of the jury to pass upon the questions of
the quantit}', quality, and their adaptation to
the condition and wants of the wife.^ Thus the
court will say as a matter of law that a stock of
goods sold for purposes of trade, or materials for
building a house, or other articles not required
or appropriate for her comfortable support,
would not be necessaries.^ But whether articles
of jewelry,^ a sewing-machine,^ household furni-
^ Fames v. Sweetser, 101 Mass. 78.
2 Hallx. Weir, 1 Allen, 261.
* Merriam v. Cunningham, 1 1 Cush. 40.
* Rayyies v. Bennett, 114 Mass. 424.
^ Willey V. Beach, 115 Mass. 559.
CONTRACTUAL POWERS. 49
ture, and tlie like, are necessaries, is for the jury.
As a general rule, the term " necessaries," ap-
pHed to a wife, is not confined to articles of
food or clothing required to sustain life or pre-
serve decency, but includes such articles of util-
ity as are suitable to maintain her according to
the estate and degree of her husband.^
If the husband unjustifiably leaves his wife ^
or if she leaves him with his consent, or justifia-
bly, as because of cruelty and from reasonable
apprehension for her safety, as long as she con-
tinues her marital purity she carries the credit
of her husband with her for necessaries, and
he to whom it is pledged by her for that pur-
pose may avail himself of his liability.^ If the
wife is abandoned, she must be considered as the
agent of the husband to exercise the usual and
ordinary care over the affairs of the household,
and to contract for the services of the children
for short periods, and to apply their earnings to
her and their support. And such agency author-
^ Manly v. Scott, 2 Sm. Lead. Gas. 245.
2 HallY. Weir, 1 Allen, 261.
^ Reynolds v. Sweetser, 15 Gray, 78 ; Burlen v. Shannon^
U Gray, 433; Mayhew v. Thayer, 8 Gray, 172.
50 LAW OF MAEPJED WOMEX.
izes tlie wife to assign the earnings of the chil-
dren for the support of the family.^
Adultery on the part of the wife discharges
the husband, but where a husband by false rep-
resentations led his wife to believe him dead,
and she married again, it was held that he was
estopped to set up her bigamy in defence to an
action against him for necessaries.^
The husband, when the wife has left him
because of cruelty, is liable for her funeral ex-
A husband was not by the common law
obliged to support the children of his wife by
a former marriage,* and this is still in force in
Massachusetts, there being no statute on the
subject. But though the husband is not obliged
to take the children into his family, yet if he
does so, he stands in loco jmrentis in respect to
them, and in the absence of an express contract,
or of circumstances showing a different arrange-
ment, he has a right to their services, and is
liable for their support and education.^
^ Camerliii v. Palmer Co., 10 Allen, 539.
2 Cartwright v. Bate, 1 Allen, 5U.
^ Cunningham \. JReardon, 98 Mass. 538.
* Worcester v. 3farchant, 14 Pick. 510.
^ Mulhern v. McDavitt, 16 Gray, 404.
CONTRACTUAL POWERS. 51
The wife has no implied authority to bind her
husband in other ways than have been indi-
cated. Thus, in the absence of evidence that
he authorized her, she cannot make a payment
which will take her husband's promissory note
out of the Statute of Limitations.-^ And her
admissions are not competent in evidence to
bind him as to a right of way, for she could not
make a valid grant of the way, or one which
would estop herself or her heirs. And " to say
that one may by acts in the country, by admis-
sion, by concealment or silence, in effect do
what could not be done by deed, would be
practically to dispense with all the limitations
the law has imposed upon the capacity of in-
fants or married women to alienate their es-
The husband may act as the agent of the
wife, but his authority must be shown.^ She is
under no obligation to support him, however
large her separate property may be. If they
own a vessel together, of which he is master, his
1 Butler V. Price, 110 Mass. 97 ; S. C. 115 Mass. 578.
2 McGregor v. Wait, 10 Gray, 72.
* Merrick v. Plumley, 99 Mass. 566 ; Paine v. Farr, 118
52 LAW OF MARRIED WOMEN.
contracts within tlie ordinary scope of his duty
as master will bind her. In such case they are
not partners, but joint owners.^
^ Reiman v. Hamilton, 111 Mass. 245.
CONYEYANCES OF REAL ESTATE. 53
CONVEYANCES 0,F REAL ESTATE.
Real property owned by a married woman,
or of which her husband was seized in her right,
could formerly, by the common law of Massa-
chusetts, be conveyed by their joint deed,-^ and
that is, perhaps, the most common way of con-
veying it now, and one which is expressly author-
ized by the General Statutes.^ By the Statute
of 1855, c. 304,^ a married woman was allowed
to convey her real estate and shares in corpora-
tions by her own deed, with her husband's con-
sent in writing, or with the consent of one of
the judges of the Supreme Judicial Court, Supe-
rior Court, or Probate Court. By the Statute of
1874, c. 184, she was allowed to convey shares in
corporations absolutely, and real estate, subject
only to her husband's curtesy, i. e. life estate,
by her own deed without his consent. Under
the provision in the General Statutes, allowing
^ Durant v. Ritchie, 4 Mason, 45.
2 Gen. St. c. 108, § 2. « Gen. St. c. 108, § 3.
54 LAW OF MAKRIED WOMEN.
her to make contracts in reference to her sepa-
rate projDerty, she could make a valid executory
contract for the purchase of real estate.-^
Before the Statute of 1874, if the husband did
not assent in writing to the conveyance, it was
void, either of shares in corporations,^ or of real
estate/ and she is not estopped to set up her
title either at law * or in equity,^ even if she
has fraudulently executed a deed bearing date
previous to her marriage.^ A deed by a man
and his wife of her land, made when he was
insane, was void."^ If the husband signs merely
" in token of release of all right to dower and
homestead," he has sufficiently assented.^ He
sufficiently assents to a mortgage by signing as
guarantor her note for the debt, secured by the
mortgage, or by signing as attesting witness.®
^ Faucett v. Currier, 109 Mass. 79.
2 Merriam v. B. C. (6 F. R. B., 117 Mass. 241.
^ Lowell \. DanielSy 2 Gray, 161 ; Warner v. Crouch, 14
* Lowell V. Daniels, supra ; Wight v. Shaiv, 5 Gush. 56.
^ Merriam v. B. C. t& F. R. R., siipra.
® Lowell V. Daniels, supra.
^ Leggate v. Clarh, 111 Mass. 308.
8 Hills V. Bearse, 9 Allen, 403.
® CorrneraisY. Wesselhoeft, 114 Mass. 550; Child Y. Samp-
son^ 117 Mass. 62.
CONVEYANCES OF REAL ESTATE. 55
Where the assent of the husband was oral, the
Court of Equity refused to compel the wife, after
the death of the husband, to execute a new
deed.^ But the wife could convey by deed
under a power-of-sale mortgage without her
husband's consent.^ Under the Statute of 1874,
the husband's assent is not necessary to the
validity of a deed, but without such assent it
will not defeat his life interest after the death
of his wife.
A husband cannot convey his own real estate
so as to defeat his wife's right to dower, unless
she expressly releases dower, which she may do
in the original conveyance, or by a subsequent
release under seal. If she merely signs the
deed, and her name does not appear anywhere
in the body of it, it will not pass any interest of
hers, even her dower.^ If she joins in the dower
clause, only signing " in token of release of
dower and of free consent hereto," it carries no
interest of hers except her dower.* If she joins
in the granting part, although the last clause
^ Townsley v. Chapin, 12 Allen, 476.
^ Cranston v. Crane, 97 Mass. 459.
* MelvinY. Proprietors, dx., 16 Pick. 137 ; Wales y. Coffin,
13 Allen, 213.
* Wales V. Coffi7i, 13 Allen, 213.
56 LAW OF MAERIED WOMEN.
states tliat slie signs in release of dower, all her
interest passes.-^ If the wife releases dower in
a deed, and suffers it to be delivered to the
grantee, she cannot afterwards avoid it, on the
ground that her signature was obtained by fraud
or undue influence on the part of her husband,
without showing complicity on the part of the
The husband of an insane woman may, on
petition to the Probate Court, have a trustee
appointed to release her dower or homestead
rights. The court may, in its discretion, direct
the trustee to retain a limited part of the pro-
ceeds, to be held to the use of the husband dur-
ing his life, and for the wife if she survives
A deed from a third person to a woman at
the request of her husband, who pays the con-
sideration, will be presumed to be a provision
for her, and will not create a resulting trust in
his favor without clear proof that such was the
intention.* And no improvements made by him
^ Perkins v. Richardson, 11 Allen, 538.
2 White Y. Graves, 107 Mass. 325.
« Gen. St. c. 108, §§ 19-22.
* Cairns v. Colhimi, 10-4 Mass. 274 ; Eclgerly v. Edgerly,
112 Mass. 175 j Cormerais v. Wesselhoeft, 114 Mass. 550.
CONYETAiS'CES OF EEAL ESTATE. 57
give him any lien or claim upon the lancl.^
Even if the deed be taken in the wife's name,
with the intent to defraud creditors, if the wife
pays any part of the purchase-money, there is
no resulting trust, and his creditors cannot take it
without proof that she was a party to the fraud.^
Where land was conveyed to a man by a deed
which recited that half the consideration was
paid by his wife, and it was shown that it was
the intention to have it conveyed to both, but
that her name was omitted by mistake, there
was held to be a resulting trust in her favor for
half the estate.^
A deed or devise of real estate to husband
and wife does not give them an estate as ten-
ants in common, or as simple joint tenants, but
by entireties. They hold it together during
their joint lives, and the husband has a right to
all the rents and profits at common law, and
probably under the statutes also, and the sur-
vivor takes the whole. Neither can defeat the
other's right to survivorship.* If both husband
^ Lihhy v. Chase, 117 Mass. 105.
^ Snow V. Paine, 114 Mass. 520.
' Hay ward ^. Cain, 110 Mass. 273; Bancroft v. Curtis j
108 Mass. 47.
* Wales V. Coffi^n, 13 Allen, 213.
58 LAW OF MARRIED WOMEN.
and wife believe that they have each an undi-
vided half, and the husband makes a deed pur-
porting to convey his half, in which the wife
releases dower, her right to the whole estate
after his death remains unaffected.^ But if land
is conveyed to a man and woman before mar-
riage, though expressed in the deed to be in
consideration of one dollar, and a marriage to
be consummated between them, they take as
tenants in common, or, if the deed clearly in-
tends so. as joint tenants, but not by entireties.^
Before the Statute of 1874, which enabled
married women to make contracts which did not
concern their separate property, a mortgage of
a married woman, given to secure payment of
a note made hj her, without any consideration
to her, could not be enforced at law, but could
in equit}'.^ Before that it was held that if a
wife made a mortgage of her separate estate to
secure payment of her husband's debt, whether
1 Pierce Y. Ckace, 108 Mass. 254.
* Walsh Y. Toung, 110 Mass. 396.
* llehurn v. Wanier, 112 Mass. 271.
CONVEYANCES OF REAL ESTATE. 59
she joined with him in the mortgage note or
not, the mortgage could be enforced at law, for
there was a valid note.^ The court reason on
the supposition that the mortgage is given to
secure the payment of the note, and not of the
debt, and that it is not sufficient that there be a
valid debt, if there is not a valid note,^ but that
it can be enforced in equity as made an express
charge on her separate estate.^ Since the Act
of 1874 a married woman's mortgage rests on
the same footing as that of a man, and the only
question is whether there is a valid subsisting
debt which it is to secure, or perhaps, under
Hehuni v. Warner, a valid note.
If a wife holds a mortgage, and her husband
afterwards comes into possession of the equity,
or vice versa^ the mortgage is not extinguished,
but cannot be enforced during the coverture, as
this would necessitate a suit between husband
and wife, which the law does not allow.* So, if
the maker of a valid mortgage marries the mort-
1 Bartlett v. Bartlett, 4 Allen, 440.
^ For an able criticism of Hehurn v. Warner, see 10 Am.
Law Rev. 371.
« See WillardY. Eastham, 15 Gray, 328.
* Tucker v. Fenno, 110 Mass. 311.
60 LAW OF MARRIED WOMEN.
gagee, the mortgage is not extinguished, but is
suspended dimng the coverture.-^
A widow who has joined with her husband in
a mortgage of her estate, to secure his debt,
which she has paid after his death, may prove
the claim before commissioners of insolvency
upon his estate, and a creditor who holds the
wife's mortgage in such case can prove without
giving up his security.^
If a man, at the time of taking a convej-ance
of real estate, mortgages it back to secure the
whole or any part of the purchase-money, it has
always been held that he had no such seisin as
to give his wife a right to dower against the
mortgagee. In the case of a similar mortgage
by the wife, it was held that her seisin was suffi-
cient to give her husband curtesy,^ but by the
Statute of 1874, c. 184, § 2, he has none against
the mortgagee. It seems that under the Statute
of 1877, c. 83, he will have a life interest in one
half of such land against the mortgagee, though
this was probably not the intention of the act.
^ BemisY. Call, 10 Allen, 512 ; Model, dx. Ass. y. Boston,
114 Mass. 133.
^ Savage v. Winchester, 15 Gray, 453.
® Weed Sevdng Machine Co. v. Emerson, 115 Mass. 554.
CRIMINAL LIABILITY. — TORTS. — ARREST. 61
CRIMIXAL LIABILITY. — TORTS. — ARREST.
If a wife commits a criminal act in the pres-
ence of her husband, she is presumed to have
acted, not of her own will, but under his coer-
cion, and she will not be liable for it, but he
will.^ But she can be convicted by a rebuttal
of this presumption, showing that she was not
coerced.^ There is no presumption of coercion
if the criminal act is committed in the absence
^ Com. V. Burh, 11 Gray, 437; Com. v. Gannon, 97 Mass.
547. This exemption of the wife seems to extend at com-
mon law to all crimes except treason, murder, and perhaps
robbery. Some text-writers do not even except these. 1 Bish •
Cr. Law^ § 357 et seq. ; 1 Whart. Cr. Law, § 71 ; 4 Bl^
Com. 28. A married woman is not excused for some misde.
meanors, though done in her husband's presence, such as
keeping a brothel, or uttering counterfeit money. 4 Bl*
Com. 29 ; Washb. Cr. Law, 22 ; Com. v. Cheney, 114 Mass.
2 Com. V. Eagan, 103 Mass. 71.
62 LAW OF MARRIED WOMEN.
of the husband, and the wife can be indicted
alone,^ though she acts by his order or direc-
tion,- or jointly with her husband.^ But if the
husband was near enough for the wife to act
under his immediate influence and control,
though not in the same room, he was not ab-
sent within the meaning of the law.*
If a married woman illegally keeps intoxicat-
ing liquors for sale, her husband will be liable if
he has knowledge of the fact and of her intent,
if the circumstances are such that she could be
considered his agent, as by his living in the
same house, and if he does not use reasonable
means to prevent her, although he has no in-
terest in the stock in trade or the profits, and
although she is carrying on business on her own
account, having filed the certificate required by
St. 1862, c. 168.^
^ Com. Y. Murphy, 2 Gray, 510 ; Com. v. Butler, 1 Allen, 4.
^ Com. V. Feeney, 13 Allen, 560; Com. v. Whalen, 16
^ Com. V. Tryon, 99 Mass. 442.
* Com. V. Munsey, 112 Mass. 287; Com. v. Burh, 11
^ Com. V. Kennedy, 119 Mass. 211 ; Com. v. Barry, 115
Mass. 146 ; Com. v. Reynolds, 114 Mass. 306 ; Com. v. Gar-
roll, 5 Reporter, 699 ; 124 Mass.
CRBIIXAL LIABILITY. TORTS. ARREST. 63
The conviction of a man is no bar to the con-
viction of his \yife for a like offence during the
same time in the same tenement.^
A wife cannot be an accessory after the fact
to her husband's crime. ^
A woman is liable for criminally burning
property, although it belonged to her husband.^
The Statute of 1871, c. 312, provides that any
married woman may sue and be sued in actions
of tort, as if she were sole, and that her husband
shall not be liable to pay the judgment against
her in any such suit.
Under this statute the wife alone is liable,
unless aided, abetted, advised, or otherwise
encouraged by her husband.* But a husband
and wife may be jointly sued and charged for a
tort done by both of them, if she does not act
by his coercion.^
The statute is superseded by St. 1874, c. 184.
^ Com. V. Heffron, 102 Mass. 148.
2 Gen. St. c. 168, §6.
« Gen. St. c. 161, § 6.
^ AiistiriY, Cox, 118 Mass. 58; McCarty v. DeBest, 120
5 Handy v. Foley, 121 Mass. 259.
64 LAW OF MARRIED WOMEN.
ARREST ON CIVIL PROCESS.
A woman cannot be arrested on civil process
except for a tort.-^ If a female judgment debtor
fails to satisfy an execution for more than twenty
dollars, she can be cited before the Probate
Court, and compelled to answer under oath as
to her possessions. If any goods are disclosed
the magistrate can order her to deliver them up,
and in case of refusal commit her for contempt.
If she parts with any property, or makes any
payment of money, after service of the citation,
with intent to prevent the same being paid to
the judgment creditor, the court may, in its dis-
cretion, commit her for contempt.^
1 Gen. St. c. 124, § 7. ^ St. 1862, c. 162.
A DIVORCE may be granted by the Supreme
Judicial Court for any of the causes allowed
by law, in any case in which the parties were
inhabitants of this state at the time of the mar-
riage, upon the petition of either of such parties
who has been an inhabitant of this state for
three years next preceding the date of the peti-
When the libellant has resided in this state
^Ye consecutive years next preceding the time
of filing the libel, a divorce may be decreed for
any cause allowed by law, whether it occurred
in this commonwealth or elsewhere ; unless it
appears that the libellant has removed into this
state for the purpose of procuring a divorce.^
With these exceptions, no divorce will be de-
creed for any cause, if the parties have never
1 St. 1877, c. 174, § 1. 2 Qq^^ St, c. 107, § 11.
66 LAW OF MARRIED WOMEiN".
lived together as husband and wife in this state ;
nor for any cause occurring in any other state
or country, unless before such cause occurred
the parties had lived together as husband and
wife in this state, and one of them lived in this
state when the cause occurred.^
It is sufficient under this section if the parties
have both had their actual domicile in this state,
although there has been no matrimonial cohabi-
tation or intercourse.^ The words " to live "
and " to reside " are synonymous, and the re-
quirement of living in this state when the
cause of divorce occurred is satisfied if the legal
domicile of the party at that time remained
within its jurisdiction. A domicile once existing
cannot be lost by mere abandonment, but con-
tinues until a new one is gained. If the domi-
cile continues, the fact that the cause occurred
out of the state is of no consequence.^ The
wife cannot acquire a domicile different from
that of her husband ; and although they live
apart she still follows his domicile. The only
exception to this rule is that an innocent wife
1 Gen. St. c. 107, § 12.
2 Eaton Y. Eato7i, 122 Mass. 276.
^ Shaw V. Shaw, 98 Mass. 158.
may under some circumstances have a separate
domicile for the purpose of sustaining a Hbel
against a guilty husband.^
The libel must be brought in the county in
which the parties, or one of them, live.^
The following are the causes of divorce from
the bonds of matrimony in this commonwealth :
A divorce will not be granted for adultery
committed with the consent or connivance of
In Broadstred v. Broadstreet ,^ the insanity of
the libellee at the time the offence was commit-
ted was held sufficient ground for dismissing
the libel. In Mansfield v. Mansfield^ the husband
was defaulted, but on a suggestion that since the
fact alleged he had become insane, the case was
continued for a guardian to be appointed.'^
^ Burlen v. Shannon, 115 Mass. 438 ; Hood v. Hood, 110
Mass. 4G3. See Harteau v. Harteau, 14 Pick. 181.
2 Gen. St. c. 107, § 13.
« Ibid. § 6.
* Cairns v. Cairns, 109 Mass. 408.
« 7 Mass. 474.
« 13 Mass. 412.
' See also on adultery Clapp v. Clapp, 97 Mass. 531 ;
Reemie v. Reemie, 4 Mass. 586.
68 LAW OF MARRIED WOMEN.
2d. Impotency of either party .^
3cl. When either party has separated from
the other without his or her consent, and united
with a religious sect or society that professes to
beheve the relation of husband and wife void or
unlawful, and has continued united with such
sect or society three years, refusing during that
time to cohabit with the other party, who has
not united with such sect or society.^
4th. When either party is sentenced to con-
finement to hard labor in the state prison, or
in any jail or house of correction, for the term of
life, or for five years or more ; and no pardon
granted, after a divorce for that cause, to the
party so sentenced, will restore such party to
his or her conjugal rights.^
5th. Extreme cruelty.* The cruelty must ap-
pear to be such as to cause injury to life, limb,
or health, or create a danger of such injury, or
a reasonable apprehension of such danger.^
1 Gen. St. c. 107, § 6.
* St. 1870, c. 404, § 2.
5 Coivhs Y. Coivles, 112 Mass. 298 ; Bailey v. Bailey, 97
6th. Cruel and abusive treatment.^
7tli. Gross and confirmed habits of intoxica-
8th. Desertion, continuing for at least three
consecutive years next prior to the filing of the
libel for divorce/ provided that when the Hbel is
filed by the party deserting, it appears that the
desertion was caused by extreme cruelty of the
other party, or that the desertion by the wife
was caused by the gross or wanton and cruel
neglect of the husband to provide suitable main-
tenance for her, he being of suflicient ability to
Under the General Statutes the desertion must
have continued for five consecutive years. The
provision in the St. of 1873 is negative, but
seems clearly to supersede the General Statutes.
When the separation is by mutual consent,
neither party can obtain a divorce on the
ground of desertion. But the voluntary with-
drawal of the wife, induced by cruelty or neglect
of the husband, is not such consent as would
deprive her of the right to a divorce, even if
the husband should accompany his cruelty or
1 St. 1870, c. 404, § 2. « g^^ 1373^ ^ 2,11, § 2.
2 Ibid, j St. 1873, c. 371, § 6. * Gen. St. c. 107, § 7.
70 LAW OF MARRIED WOMEN.
neglect with his permission for her to depart
from his house and society.^ If she is justified
by his ill-treatment or misconduct in leaving the
house, he cannot have a divorce for the deser-
The mere refusal of matrimonial intercourse is
not enough to constitute desertion, but there
must be an abnegation of all the duties and
oblio^ations resultino; from the marriage contract.
o o o
Where the wife occupied a different room from
her husband, and refused to cohabit with him,
his libel was dismissed.^ But the libel of the
wife will not be dismissed merely on the ground
that she has received support from her husband
during the separation *
The libel will not be defeated by a temporary
return or other act done by the party deserting
with the intent to defeat the libel, if it appears
that such return or other act was not made or
done in good faith.^
1 Lea V. Lea, 8 Allen, 418 ; S. C. 99 Mass. 493.
^ Lyster v. Lyster, 111 Mass. 327 ; see Fera v. Fera, 98
^ Southioich V. Soutkwick, 97 Mass. 327.
* Magrathx. Magrath, 103 Mass. 577.
^ Gen. St. c. 107, § 8. See also on desertion Hall v. Hall,
4 Allen, 39 ; Thurston v. Thurston, 99 Mass. 39.
9tli. On the libel of the wife, when the hus-
band, being of sufficient abihty, grossly or wan-
tonly and cruelly refuses or neglects to provide
a suitable maintenance for her.^
The neglect to provide must be gross, wanton,
and cruel. The cruelty must appear to be at
least such as shall cause injury to life, limb, or
health, or create danger of such injury, or a
reasonable apprehension of such danger. The
mere neglect to provide for the wife is not
enough for her to maintain a libel.^
A party seeking a divorce must come into
court with clean hands ; and the fact that the
complainant in a divorce suit has himself bro-
ken, either completely or in part, the same
matrimonial chain of whose breach by the other
party, whether in the same or in any other of
its links, he complains, will constitute a good
defence to a libel for divorce. This is called
1 St. 1870, c. 404, §2.
2 Peahody v. Peahody, 104 Mass. 195; Holt v. Holt, 117
^ In Eldred v. Eldred, 2 Curteis, 376, and Billon v. Billon, 3
Curteis, 86, it was held that the wife could not set up a charge
72 LAW OF MAEEIED WOZ^EX.
Condonation may be either express, that is,
signified by words or writing, or it may be im-
plied from the acts of the injured party, and
any condonation is on condition, imphed if not
expressed, that the injury shall not be repeated,
and upon breach of the condition the remedy
for the original offence is revived.
Any condonation by the wife of her husband's
cruelty is on the condition of his treating her
in the future with conjugal kindness, and any
breach of this condition will revive the right to
maintain a libel for the original offence ; ^ and
such a breach may be shown by acts and words
which would not of themselves prove a cause for
divorce. Harshness or rudeness, not sufficient
to maintain a libel, may receive a different inter-
pretation and effect upon the question of con-
donation, after proof that the husband had pre-
viously gone to the length of positive acts of
of cruelty in bar of her husband's remedy of divorce for adul-
tery ] nor -svill malicious desertion be a bar, said Dr. Lushing-
ton, uU siq^ra. 2 Kent's Com. (12th Ed.) *100, note c.
^ French v. French ^ 14 Gray, 186 ; Gardner v. Gardner^
2 Gray, 434.
* BobbinsY. Robhins, 100 Mass. 150.
Condonation is always implied from cohabita-
tion after the commission of the offence, after
the complainant has knowledge of the fact or
believes it on reasonable grounds. The pre-
sumption of remission of the offence may, how-
ever, be rebutted by evidence, especially in favor
of the wife.
Condonation is not so easily to be inferred
against the wife as it might be against the hus-
band. The state of the respective parties differs
materially in their opportunities for at once
withdrawing from the scene of discord and vio-
lence. Forbearance for a season may be not
only a justifiable, but a necessary step on the
part of the wife ; and when shown to have been
so, no condonation for acts of extreme cruelty
is to be inferred from such cohabitation.-^
When a wife dismisses a libel for divorce,
and agrees to condone the husband's previous
offences if he will not commit further acts of
adultery, and he does afterward commit adul-
tery, such dismissal, agreement, and condonation
will not bar the wife from suing for a divorce
for either his earlier or later acts of adultery.^
^ Gardner v. Gardner, 2 Gray, 434.
2 Sewall V. Seivall, 122 Mass. 156.
74 LAW OF MARRIED WOMEN.
Forgiveness of one act is not forgiveness of
other acts, of which the forgiving party had
neither knowledge nor a reasonable ground of
belief; nor does readiness to forgive a single
offence imply willingness to forgive a life of
profligacy. Whether the condonation is in any
given case to be confined to one or more acts,
or is to include all past offences, is a question to
be decided by the language and conduct of the
parties, in view of the facts then known or rea-
sonably suspected by the forgiving party .^
K a husband, believing upon reasonable
grounds the guilt of his wife, still continues to
cohabit with her, he will be presumed to have
remitted the crime, and will not be allowed a
decree of divorce for that cause.^
Under the Statutes of Massachusetts a decree
of divorce may be either a decree nisi (unless)
or a decree absolute. In the former case the
marriage is not absolutely dissolved, but the
decree may be made absolute on motion of
the party in whose favor it was rendered, after
^ Rogers v. Rogers, 122 Mass. 423.
^Anonymous, 6 Mass. 147.
the expiration of not less than six months, pro-
vided the terms of the decree have been com-
plied with, iinkss sufficient cause to the contrary
A decree nisi is now granted only when per-
sonal service has not been made on the libellee,
and when the libel for divorce has been entered
at the term during which the decree is granted.^
After a decree nisi the libellant cannot marry
again until the divorce is made absolute, and in
a case where the libellant, believing, after a
decree 7iisi, that he had obtained a divorce, and
was at liberty to do so, married again, the court
held the second marriage to be illegal and void,
and that the libellant was not entitled to have
the decree of divorce made absolute.^
The court, upon granting to a woman a di-
vorce from the bonds of matrimony, may allow
her to resume her maiden name, or the name
of any former husband.*
1 St. 1867, c. 222, § 1. See also St. 1873, c. 371, §§ 2, 3 ;
St. 1874, c. 397, § 1 ; St. 1875, c. 226, § 1.
2 St. 1874, c. 397.
3 iMoors V. Jloors, 121 Mass. 232.
^ Gen. St. c. 107, § 23.
76 LAW OF MARRIED WOMEN.
When an inhabitant of this state goes into
another state or country to obtain a divorce for
any cause which occurred while the parties re-
sided here^ or for any cause which would not
authorize a divorce by the laws of this state, a
divorce so obtained will be of no force in this
state.-^ In all other cases a divorce decreed in
any other state or country, according to the
laws thereof, by a court having jurisdiction of
the cause and of both the parties, will be valid
and effectual in this state.^
When a husband goes into another state, with-
out acquiring a domicile there, for the purpose
of obtaining, and does fraudulently obtain, a di-
vorce for a cause which occurred in, but was not
a cause for divorce by the laws of, this state, a
court of that state has no jurisdiction, and its
decree granting the divorce is entitled to no
faith and credit in this commonwealth.^
^ Gen. St. c. 107, § 54. See Lyon y. Lyon, 2 Gray, 367;
Smith X. Smith, 13 Gray, 209.
2 Gen. St. c. 107, § 55.
» Seivall V. Seivall, 122 Mass. 156.
EFFECT OF AN ABSOLUTE DIVORCE.
Persons divorced will be liable to all the pen-
alties against adultery, if they cohabit as hus-
band and wife, or live together in the same
The innocent party may marry again, as if
the other party were dead.^ The guilty party
cannot marry again without leave granted by
the court,^ and if he marries without such leave
he will be adjudged guilty of polygamy.* When
a divorce was obtained on the ground of adul-
tery, it was held that proof that the guilty
party since the divorce had maintained a good
character, and was a fit person to marry, was
sufficient to justify the court in allowing her
to marry again.^ But if one, with notice and
opportmiity to meet the charge, allows a decree
of divorce to be obtained against him upon the
ground of any condition of mind or body, or
religious association, which by law renders him
1 Gen. St. c. 107, § 24.
2 Ibid. § 25.
- » St. 1873, c. 371, § 4 ; Gen. St. c. 107, § 26.
* Gen. St. c. 107, § 25.
5 Cochrane, Petr., 10 Allen, 276.
78 LAW OF MARRIED WOMEN.
unfit for the marriage state, he will not be
allowed by the court to marry again without
proof that he has changed his condition in
this respect.^'''. The belief of the guilty party
that he has a right to marry again in the life-
time of the other party without leave of court
does not render such marriage valid,^ and such
belief would be no defence to an indictment
A person against whom a divorce for adultery
has been obtained in another state, by the law
of which in such a case both parties may marry
again, may contract a valid marriage in this
commonwealth, without obtaining leave of the
ALLOWANCE PEXDENTE LITE.
In all cases of libel for divorce, the court may
require the husband to pay into court, for the
use of the wife during the pendency of the
libel, such sum of money as may enable her to
maintain or defend the libel, tilthough exceed-
1 CMld^s Case, 109 Mass. 406.
2 White V. White, 105 Mass. 325.
^ Ibid. ', Com. v. Mash, 7 Met. 472.
* Bullock V. Bullod', 122 Mass. 3.
ing taxable costs ; and in every case of libel for
divorce the wife, when it is just and equitable,
will be entitled to alimony during the pen-
dency of the suit.-^ Under this, the court may
order the payment of reasonable counsel fees.^
When a divorce is granted for any cause, the
court granting it may decree alimony to the
wife, or any part of her estate to her husband
in the nature of alimony.^ Alimony may be
decreed to be paid in one gross sum, or in an-
nual payments, and in determining the amount
the court will, of course, consider the pecuniary
condition of the husband ; the value of his
estate and the extent of his liabilities.* It
may be awarded the wife whether the decree
of divorce is in her favor or not.^
The court has full power in regard to the
1 Gen. St. c. 107, § 22.
^ Baldwin v. Baldivin, 6 Gray, 341.
« St. 1873, c. 371, § 7. See also Gen. St. c. 107, § 43 to
53 incl. ; St. 1877, c. 178, § 5.
^ Burrows v. Purple^ 107 Mass. 428.
^ Graves v. Graves, 108 Mass. 314.
80 LAW OF MAKEIED WOMEN.
matter of alimony, and may in its discretion
award it or not. If the question is reopened by
a motion to change the form of the allowance,
the court will consider any alteration in the cir-
cumstances of the parties, and revise the decree
The husband is liable for necessaries furnished
to his wife during the time she was prosecuting
a libel for divorce, notwithstanding a decree of
court granting the divorce, and allowing alimony
for her past and future expenses.^
Upon libels for divorce for any cause, in order
to secure compliance with any decree that may
be made, an attachment of the husband's real
and personal estate may be made by the officer
serving the libel.^ Such attachment may be
made by trustee process.*
When alimony or other annual allowance is
decreed for the wife or children, the court may
requu-e sufficient security to be given for its
payment according to the terms of the decree ;
and such decrees (i. e. for allowance or alimony)
1 SparhaivTc v. SparliaivTc, 120 Mass. 390.
* Dowe V. Smith, 11 Allen, 107.
s Gen. St. c. 107, § 50 ; St. 1866, c. 148, § 2.
* St. 1866, c. 148, § 3.
may be enforced by the court in the same man-
ner as decrees are enforced in equity.^
The conveyance and transfer of his property
by the husband, in anticipation of his wife's fil-
ing a libel against him for a divorce, and with
intent to prevent the execution of any decree
for alimony w^hich may be obtained, are a fraud
upon her for which she may have redress.^ In
a recent case where such conveyance and trans-
fer were made to the son-in-law and daughter of
the respondent, the court held that these facts
were competent evidence upon the question
whether the husband had in his possession or
control the means of obeying the order of the
court, and was consequently in contempt for dis-
obedience of that order.^
LEGITIMACY OF ISSUE.
A divorce on account of adultery committed
by the wife will not affect the legitimacy of the
issue of the marriage.*
1 Gen. St. c. 107, §§45,46.
^ Burr 0X08 v. Purple, 107 Mass. 428.
" Stuart V. Stuart, 123 Mass. 370.
* Gen. St. c. 107, § 27.
82 LAW OF MARRIED WOMEN.
PROVISIONS CONCERNING PROPERTY.
When a divorce is decreed on account of
adultery committed by the husband, or because
of his sentence to confinement at hard labor,
the wife will be entitled to dower in his lands in
the same manner as if he were dead,^ and upon
a decree of divorce for any cause, except adul-
tery committed by the wife, the wife will be
entitled to the immediate possession of all her
real estate in like manner as if her husband
were dead ; and the court may make a decree
restoring to the wife the whole or any part of
the personal estate that has come to the hus-
band by reason of the marriage, or awarding to
her the value thereof in money to be paid by
When the divorce is decreed for the cause of
adultery committed by the wife, such decree will
not affect her title to her separate real and per-
sonal estate during her life, except that the
court may decree to the husband so much of
her separate real and personal estate as it may
deem necessary for the support of the minor
children who may have been decreed to his
1 St. 1870, c. 404, § 4. * Gen. St. c. 107, § 40.
custody ; but if the wife afterward contracts a
lawful marriage, the interest of the divorced
husband in the wife's separate real and personal
estate, after her death, will cease, except in so
much thereof as may have been decreed him as
1 St. 1877, c. 178, § 5.
84 LAW OF MARRIED WOMEN.
CUSTODY OF MINOR CHILDREN.
The father and mother are the natural guar-
dians of their children so far as custody goes,
and as long as they are fit and competent per-
sons they are entitled to said custody.
The Probate Court may appoint a guardian of
a minor under fourteen years of age, or if he is
over that age he may nominate his own guar-
dian, and the Probate Court will appoint ac-
cordingly, if he be such a person as the court
Such a guardian will have the custody and
tuition of his ward, and the care and manage-
ment of his estate until the minor arrives at
the age of twenty-one y^diV^, provided the father
and mother are both dead, or are incompetent
to transact their own business ; but if either the
father or mother, or both, are living, and are
competent persons, they will be entitled to the
custody and tuition of the minor.^
1 Gen. St. c. 109, § 2. ^ q^^^ g^;. c. 109, § 4.
CUSTODY OF MINOR CHILDREK. 85
The father may by will appoint guardians for
his children, and such guardians will have the
same powers and perform the same duties with
regard to the person and estate of the ward as a
guardian appointed by the Probate Court.^
It will thus be seen that where either of the
parents is living, and is a competent person, the
duty and power of the guardian is limited to
the care and custody of the estate of his ward ;
but if the parents, or surviving parent, are found
to be unfit, a guardian may be appointed who
shall have the custody of the child .^
In general, the father is by law clearly en-
titled to the custody of his child, and unless
clearly unfit, the court will feel bound to restore
the custody to him.^ So, where there had been a
separation between a husband and wife without
justifiable cause, the court ordered the child to
be taken from the custody of the mother and
restored to the father.* A writ of habeas corpus
may be properly issued against a wife to obtain
the custody of a child on application of the hus-
Where a husband has deserted or fails to fur-
1 Gen. St. c. 109, § 5. * Ibid.
2 St. 1873, c. 367. ^ jbid.
* Com. V. Briggs, 16 Pick. 203.
86 LAW OF MAREIED WOMEN.
nish suitable support for his wife, or where the
wife for a justifiable cause is actually living
apart from her husband, the court will, upon
application of either the husband or wife, make
such order as it deems expedient concerning
the care, custody, and maintenance of the minor
In the case of a child of tender years, the
good of the child is to be regarded as the pre-
dominant consideration. There may be cases in
which the court would not interfere in favor of
a father, to take the child from any safe custody
to deliver to him.^ And if the welfare of the
child clearly requires it should remain in the
care of the mother, the court will so order.^
During the pendency of a libel for divorce,
the court will, upon application of either party,
make such order concerning the care and cus-
tody of the minor children of the parties as
shall be deemed expedient, and for the benefit
of the children.*
^ Gen. St. c. 107, § 36; St. 1874, c. 205. The statute of
1874 is constitutional, although there is no provision in it for
a trial by jury. Bigeloiv v. Bigelow^ 120 Mass. 320.
2 Com. V. Briggs, 16 Pick. 203.
^ Com. V. Maxwell, 6 Law Rep. 214.
* Gen. St. c. 107, § 32.
CUSTODY OF MINOR CHILDREN. 87
"When a divorce is decreed for any cause, the
court granting it may decree alimony to the
wife, and the court has full power to make all
such decrees in relation to the care, custody, and
support of the minor child or children of the
parties, during their minority, as to the court
shall seem fit and proper, and for the best inter-
est of such child or children.^
After a decree of nullity or divorce the court
may make such further decree as it deems expe-
dient concerning the care, custody, and mainte-
nance of the minor children of the parties, and
determine with which of the parents the chil-
dren or any of them shall remain, and may,
from time to time, on the petition of either
of the parents, revise and alter such decree, and
make a new decree, as the circumstances of the
parents and the benefit of the children re-
In making an order or decree relative to the
custody of children, pending a controversy be-
tween their parents, or in regard to their final
possession, the rights of the parents in the ab-
sence of misconduct shall be held to be equal,
1 St. 1873, c. 371, § 7. ^ Gen. St. c. 107, § 33.
88 LAW OF MARRIED WOMEN.
and the happiness and welfare of the children
shall determine the custody or possession.'^
Where the court has jurisdiction over the cus-
tody and maintenance of infant children, if the
children are natives of this state, or have re-
sided five years within its hmits, they cannot
be removed out of the jurisdiction against their
own consent, if of suitable age to signify the
same, nor while under that age without the con-
sent of both parents, unless the court upon
cause shown otherwise orders.^
If a divorce is decreed in any other state or
country, if minor children of the marriage are
inhabitants of this state, the court, upon peti-
tion of either parent, or of a next friend in
behalf of the children, has the same power to
make decrees as to their custody and mainte-
nance as if the divorce had been decreed in
this state .^
^ Gen. St. c. 107, § 37. I Ibid. § 35. ^ Ibid. § 34.
HOMESTEADS AND SETTLEMENTS. 89
HOMESTEADS AND SETTLEMENTS.
Eyert householder having a family is enti-
tled to an estate of homestead, to the extent in
value of eight hundred dollars, in the farm or
lot of land, with the buildings thereon, owned
or rightly possessed by lease or otherwise, and
occupied by him as a residence ; and such home-
stead, and all right and title therein, is exempt
from attachment, levy on execution, sale for pay-
ment of debts, or other purposes, and from the
laws of conveyance, descent, and devise.
To constitute such an estate of homestead, and
to entitle property to such exemption, it must
be set forth in the deed of conveyance by which
the property is acquired, that it is designed to
be held as a homestead, or after title acquired
such design must be declared in writing duly
signed, sealed, and acknowledged, and recorded
in the registry of deeds for the county or dis-
trict where such property is situated.
90 LAW OF MARRIED TVOMEX.
The acquisition of a new estate of homestead
will operate to defeat any estate or right of
homestead previously existing.^
No property by virtue of these provisions is
exempt from levy for taxes, or for a debt con-
tracted for the purchase thereof, or for a debt con-
tracted before the deed or writing above referred
to is recorded, nor are buildings on land not
owned by the householder exempt from sale or
levy for the ground-rent of land on which they
stand ; and such right of homestead will not
defeat any mortgage or other encumbrance pre-
This estate or right of homestead existing at
the death of any householder will continue for
the benefit of his widow and minor children,
and be held and enjoyed by them, if some one of
them occupies the premises, until the youngest
child is twenty-one years of age, and until the
marriage or death of the widow.^
A widow in order to enjoy the benefit of an
estate of homestead is not obliged to occupy it
personally, but may, if she chooses, let the same
to others ; * and the use of a room in a dwelling-
1 Gen. St. c. 104, §§ 1, 2. ^ ibid. § 12.
* Ibid. §§ 5, 6. * MercievY. Chase, 11 Allen, 194.
HOMESTEADS AND SETTLEMENTS. 91
house owned by her husband at the time of his
death as a homestead, for the pm'pose of storing
furniture, is a sufficient continuation of occupa-
tion by the widow to entitle her to the benefit of
the homestead exemption.-^ A right of home-
stead can only be defeated by a deed acknowl-
edged and recorded, in which the wife of the
owner, if he has any, joins for the purpose of
releasing the same.^ If she only releases dower
in the deed, she does not lose her homestead.^
An estate of homestead cannot be affected by
the will of the householder.*
By the Act of 1878, c. 190, all former acts
concerning the settlement of paupers are re-
pealed. The present act provides that "any
woman of the age of twenty-one years, who
resides in any place within this state for five
years together, without receiving relief as a
pauper, shall thereby gain a settlement in such
1 Brettun v. Fox, 100 Mass. 234.
2 Gen. St. c. 104, § 8.
* Mercier v. Chase, 11 Allen, 194.
* BreUun v. Fox, 100 Mass. 234.
92 LAW OF MAEEIED WOMEN.
" A married woman shall follow and have the
settlement of her husband, if he has any within
the state, otherwise her own at the time of the
marriage, if she then had any, shall not be lost
or suspended by the marriage.
^^ Legitimate children shall follow and have
the settlement of their father, if he has any
within the state, until they gain a settlement of
their own ; but if he has none, they shall in like
manner follow the settlement of their mother, if
she has any.
"Illegitimate children shall follow and have
the settlement of their mother at the time of
their birth, if she then has any within the state ;
but neither legitimate nor illegitimate children
shall gain a settlement in the place where they
may be born, if neither of their parents then has
a settlement therein."
A MARRIED woman may make a will of her
real and separate personal estate in the same
manner as if she were sole, but she cannot by
will deprive her husband of more than half her
personal property, or of his right to curtesy in
her real estate, without his consent in writing.-^
If a husband assents in writing to a will exe-
cuted by his wife, unless the assent is qualified
or limited, the will is vahd and effectual to pass
all her real as well as personal estate to the ex-
tent to which the devises and bequests therein
contained dispose of the property.^ Such con-
sent to be effectual must be given during the
lifetime of the wife.^
A married woman may devise the accumulated
income as well as the principal of trust funds
which she is entitled to receive under a deed or
1 Gen. St. c. 108, §§ 9, 10.
2 Silshy V. Bulloch, 10 Allen, 94.
« Smith V. Sweet, 1 Gush. 470.
94 LAW OF MAERIED WOMEN.
will, or which have been by her received and
A married woman may, without her husband's
consent, make a valid disposition of specific arti-
cles of her separate personal property by a dona-
tio causa mortis to the extent of depriving him of
more than half of her personalty ; such disposi-
tion not being considered as testamentary, but
as a gift.^
As a will takes effect from the death of the
testator, its validity will depend on the statutes
in force at the time of the death, and not at the
time it was made.^
1 St. 1864, c. 198 and c. 276.
^ Marshall v. Berry, 13 Allen, 43.
* Burroughs v. Nutting^ 105 Mass. 228.
PROVISIONS IN CASE OF INTESTACY. 95
PROVISIONS IN CASE OF INTESTACY.
DISTRIBUTION OF THE PROPERTY OF A MARRIED
If a married woman dies intestate her prop-
erty will be distributed as follows : —
If the husband survives her, he will be enti-
tled (if a child has been born alive to them) to
curtesy, that is, a life interest in all her real
estate, or if no child has been born alive, to a
life interest in one half her real estate, or, if she
leaves no kindred, to the whole of it, and to the
whole of her personal property.^
The birth of living children after the convey-
ance by a married woman of land held by her
.to her sole and separate use will entitle her
husband to an estate of curtesy therein.^
If her husband does not survive her, her
property, both real and personal, will descend
^ Gen. St. c. 94, § 16 ; St. 1877, c. 83.
^ Comer v. Chamberlain, 6 Allen, 166.
96 LAW OF MARRIED WOMEN.
in equal shares to her children, and the issue of
any deceased child by right of representation.
If there is no surviving child, then to all her
other lineal descendants. K she leaves no issue,
then in equal shares to her father and mother.
If she leaves no issue nor mother, then to her
father. If she leaves no issue nor father, then
to her mother. If she leaves no issue, and no
father nor mother, then to her brothers and sis-
ters, and to the issue of any deceased brother
or sister by right of representation. If she
leaves no issue, and no father, mother, brother,
nor sister, then to her next of kin in equal de-
gree, those claiming through the nearest ances-
tor being preferred. If she leaves no kindred,
then her estate will escheat to the common-
DISTRIBUTION OF PROPERTY OF HUSBAND.
Upon the death of the husband, if he dies in-
testate, the widow is entitled to her dower, that
is, to a life interest in one third of all the real
estate of which her husband was seized at any
time during coverture, and to which she has not
1 Gen. St. c. 94, § 16 j St. 1876, c. 220.
PROVISIONS IN CASE OF INTESTACY. 97
released her rights.^ But she can have no dower
in wild lands? If the husband leaves no issue,
she is entitled to a life interest in one half of
the real estate of which he died seized, or to her
dower, as she may elect.^
Of the personal estate she is entitled, if her
husband leaves issue, to one third, or if he leaves
no issue, to the whole to the amount of $ 5,000,
and to one half the excess over $10,000.*
She is also entitled to her articles of apparel
and ornament, to the use of her husband's house
and the furniture therein for forty days after
his death, and also to such parts of the personal
estate as the Probate Court may allow for ne-
cessaries, and for provisions for her reasonable
sustenance for forty days after her husband's
death.^ And in Williams v. Williams^ Thomas, J.,
says ^Hhe power (i. e. of the Probate Court) is
not limited to intestate estates. It is given in
all cases, whether there is a will or not, whether
^ Gen. St. c. 90, § 1.
2 Ibid. § 12.
^ Ibid. §§ 15, 16. See Brigham v. Maynard, 9 Gray, 81,
4 Gen. St. c. 94, §§ 16, 17.
5 Gen. St. c. 94, § 16 ; c. 90, § 18 ; c. 96, §§ 4, 5.
« 5 Gray, 24.
98 LAW OF MARRIED WOMEN.
the widow waives the provisions of the will or
WAITER OF PROYISIOXS OF HUSBAND'S WILL.
A widow of a testator may, if she so elect,
within six months after the probate of her hus-
band's will, file in the Probate Court a waiver
of its provisions, and in that case will be enti-
tled to such portion of his real and personal es-
tate as she would have been entitled to if her
husband had died intestate ; except that if the
share of the personal estate to which she would
thus become entitled shall exceed the sum of
$ 10,000, she will take only the income, during
her life, of such excess.^
But it seems that in order to be entitled to
claim an estate of homestead (see Homestead),
it is not necessary for the widow to waive the
provisions made for her in her husband's will.^
A widow will be entitled to dower in addition
to the provisions of the will, if it plainly appears
by the will that such was the intention of the
1 St. 1861, c. 16^; St. 1871, c. 200; St. 1871, c. 97;
St. 1873, c. 58.
2 Breitun v. Fox, 100 Mass. 234.
3 St. 1861, c. 164.
OTHER RIGHTS AXD LIABILITIES. 99
OTHER RIGHTS AXD LIABILITIES.
A POLICY of insurance on the life of any per-
son, expressed to be for the benefit of any mar-
ried woman, whether procured by herself, her
husband, or any other person, or a policy of in-
surance on the life of any person duly assigned,
transferred, or made payable to any married
woman, or to any person in trust for her or for
her benefit, whether such transfer be made by
her husband or other person, will inure to her
separate use and benefit and that of her chil-
dren, independently of her husband and his
creditors, or of the person effecting or transfer-
ring the same, or his creditors. If, however,
the premiums on such policies are paid by any
person with intent to defraud his creditors, an
amount equal to the premiums so paid will
inure to the benefit of his creditors.^
1 Gen. St. c. 58, § 62 ; St. 1864, c. 197.
100 LAW OF MAERIED WOMEN".
This provision proceeds upon the theory that
the interest of a man's wife and children in his
life, and his duty to make reasonable provision
for their support, are not wholly subordinate to
the claims of his creditors; and that he may
make an irrevocable settlement of a policy of
insurance on his life for the benefit of his family.
The security is declared by the statute to be
independent not only of creditors, but of the
A policy of life insurance expressed to be for
the benefit of the widow and child of the assured,
cannot be affected by any assignment thereof
by the husband or by his will,^ iior can the wife
make an assignment, even with the assent of her
husband and of the insurers, which can affect the
right of the child to the amount of the policy
upon the death of the husband happening after
If the wife dies before her husband, leaving
children, the administrator of her estate will be
entitled to receive the amount of the policy
after her husband's death, and will hold it, if no
^ Gould V. Emerson, 99 Mass. 154 ; Unity Ass. v. Dugan^
118 Mass. 219.
^ Knickerhocker Life Ins. Co. v. Weitz, 99 Mass. 157.
OTHER EIGHTS AND LIABILITIES. 101
Other trustee is appointed, for the benefit of the
In Burroughs v. State Mid. Life Ins. Oo.,^ it was
held that the assignee of a policy expressed to
be for the use of the wife and children of the
assured, may maintain an action on the policy,
notwithstanding there is a surviving child, but
such assignee will hold the proceeds, so far as
they inure to the benefit of the child, in trust
MAKRIED WOMAN MAY BE EXECUTRIX, &C.
A married woman may be an executrix, ad-
ministratrix, guardian, or trustee, and bind her-
self and the estate she represents, without her
husband joining in any conveyance or instru-
ment whatever, and be bound in the same man-
ner and with the same efiect in all respects as if
she were sole ; ^ and the marriage of any woman
will not extinguish her authority as an execu-
trix, administratrix, guardian, or trustee, but she
will continue, notwithstanding such marriage, to
hold such trust in all respects in the same man-
^ Swan V. S'/ioiv, 11 Allen, 224.
2 97 Mass. 359. ' St. 1874, c. 184, § 4.
102 LAW OF MARRIED WOMEN.
ner and with the same effect as if she had re-
mained sole and unmarried.^
The widow of an intestate may be appointed
administratrix of her husband's estate.^
\VITXESS IN SUITS TO WHICH HUSBAND IS A
The rule of the common law is so far modified
by statute in this commonwealth, that a wife is
a competent witness in a suit to which her hus-
band is a party, except that she is not allowed to
testify as to private conversations with her hus-
band.^ She cannot, however, be compelled to
be a witness on any trial upon an indictment,
complaint, or other criminal proceeding against
A conversation between husband and wife,
held in the presence of young children of the
family only, who are not shown to have taken
any part in, or paid any attention to it, is a pri-
vate conversation within this statute.^
1 St. 1869, c. 409, § 2.
2 Gen. St. c. 94, § 1.
^ St. 1870, c. 393, § 1.
^ Jacobs V. Hesler^ 113 Mass. 157.
OTHER EIGHTS AXD LIABILITIES. 103
The testimony of a wife as to a transaction
between her husband and herself, when no one
else is present, is under this statute inadmis-
In cases within the Statute of Limitations/
where the wife of a party to the suit is an
attesting witness, she cannot testify, although a
competent witness at the time o^ the trial, if she
were not so at the time of the attestation.^
A wife is not a competent witness to her hus-
RIGHT OF HUSBAXD TO CHASTISE WIFE.
Sir William Blackstone in his Commentaries
says : " The husband also, by the old law,
might give his wife moderate correction. For,
as he is to answer for her misbehavior, the law
thought it reasonable to intrust him with this
power of restraining her by domestic chastise-
ment, in the same moderation that a man is
allowed to correct his apprentices or children,
^ Brown v. Wood, 121 Mass. 137.
2 Gen. St. c. 155.
^ Jenkins v. Dawes, 115 Mass. 599.
* Pease v. Allis, 110 Mass. 157.
104 LAW OF MARRIED WOME:Nr.
for whom the master or parent is also liable in
some cases to answer. But this power of correc-
tion was confined within reasonable bounds, and
the husband was prohibited from using any vio-
lence to his wife aliter qiiam ad vinim, ex causa regi-
minis et castigationis uxoris stice, licite et rationaUliter
pertinet. The civil law gave the husband the same
or a larger autht)rity over his wife ; allowing him,
for some misdemeanors, ^d?^^/?/^ et fiistihus acriter
verherare iixorem ; for others, only modicam castiga-
tionem adhibere. But with us, in the politer reign
of Charles the Second, this power of correction
began to be doubted ; and a wife may now have
security of the peace against her husband, or,
in return, a husband against his wife. Yet the
lower rank of people, who were always fond of
the old common law, still claim and exert their
ancient privilege ; and the courts of law will still
permit a husband to restrain a wife of her lib-
erty, in case of any gross misbehavior." ^
In Massachusetts it is not one of the rights
which the man acquires by marriage to strike or
beat his wife, even though she be drunk or inso-
lent ; and if he do strike her, and death results
from the blow, he is guilty of manslaughter at
1 1 Bl, Com. 444. ^ q^^^^ ^^ McAfee, 108 Mass. 458.
OTHER EIGHTS AND LIABILITIES. 105
Whenever a husband without just cause fails
to furnish suitable support for his wife, or has
deserted her, or when the wife, for justifiable
cause, is actually living apart from her husband,
the Supreme Judicial Court may, on the petition
of the wife, prohibit the husband from imposing
any restraint on her personal liberty.-^
RIGHT OF HUSBAND TO SERVICES OF WIFE.
The husband has a right to the services of his
wife, and is bound to sustain her in sickness and
health. Any injury inflicted on her which di-
minishes the value of this right, or increases the
burden of this duty, is a pecuniary loss to him.
His only remedy in case of any injury to his
wife, or for her seduction, is by an action for the
loss of her service and of her comfort and so-
ciety. The fact that the husband was, at the
time of the wife's injury, in the employment of
the corporation by whose negligence she was in-
jured, will not be permitted to defeat his claim.^
1 St. 1874, c. 205. See Bigelow v. Bigelow, 120 Mass. 320.
^ Gannon v. Housatonic R. R. Co., 112 Mass. 234.
106 LAW OF MARRIED WOMEN.
COXSTITUTIOXAL TO TAX WOMEX.
By the Constitution of Massachusetts, c. 1, § 1,
art. 4, the legislature have power to impose
taxes " upon all the inhabitants of, and persons
resident, and estates lying within, the said com-
monwealth." By the laws passed by the legis-
lature, in pursuance of this power and authority,
a woman is liable to taxation, although she is
not qualified to vote for the officers by whom
the taxes were assessed.-^
A WOMAN CANNOT BE A JUSTICE OF THE PEACE.
By the Constitution of the Commonwealth the
office of Justice of the Peace is a judicial office,
and must be exercised by the officer in person ;
and a woman, whether married or unmarried,
if appointed to such an office, would have no
constitutional or legal authority to exercise any
of the functions appertaining to it.^
1 Wheeler v. Wall, 6 Allen, 558.
^ Opinion of Justices, 107 Mass. 604. Miss Strickland, in
her Queens of England, Vol. Y. p. 278, says that Queen
Mary made Lady Berkley a justice of the peace for Glouces-
tershire, and Lady Rous of the quorum for Suffolk, and that
she sat with the other justices at assizes, cincta gladio.
OTHER RIGHTS AND LIABILITIES. 107
A WOMAN MAY SERVE OX THE SCHOOL COM-
In 1873 a woman was elected a member of
the School Committee of the City of Boston.
That body excluded her on the ground that a
woman was ineligible to the office. On her peti-
tion for a writ of mandamus^ to compel them to
admit her, the court held, without intimating
any opinion on the main point, that, as the
School Committee were given authority to de-
cide upon all questions relative to the qualifica-
tions, elections, and returns of its members, it
had no jurisdiction, the action of the committee
In 1874 an act was passed, providing that
no person shall be deemed ineligible to serve
upon a school committee by reason of sex.^
GUARDIAN FOR MARRIED WOMEN.
When a married woman owns property, real
or personal, a guardian may be appointed to
^ Peahody v. School Committee of Boston, 115 Mass. 383.
2 St. 1874, c. 389.
108 LAW OF MARRIED WOMEX.
her for the same causes and in the same man-
ner as if she were sole. But the husband is
entitled to notice before a guardian can be ap-
pointed. Such guardian cannot apply the prop-
erty of his ward to the maintenance of herself
and family, while she is married, unless author-
ized by the Probate Court, on account of the
inability of the husband to suitably maintain
her or them, or for other sufficient cause. Such
a guardian will not have the care, custody, or
education of his ward, except in case of the
insanity of the husband, or of his abandoning his
wife, by absenting himself from the state and
making no provision for her.-^
INSANITY OF HUSBAND OR WIFE.
When a married woman is by reason of in-
sanity incompetent to release her right of dower
or homestead, her husband or any suitable per-
son may be appointed guardian for that pur-
When an insane woman is deserted by her
husband, or her husband fails to furnish for her
1 Gen. St. c. 108, §§ 16, 17, 18.
* Ibid. § 19. See A7ite, p. 56.
OTHER RIGHTS AND LIABILITIES. 100
a suitable support, or when a wife who is living
apart from her husband for any justifiable cause
becomes insane, the Supreme Court may, on the
petition of the guardian, or next friend of such
insane woman, make such order concerning her
support and the support of her minor children
by said husband as it deems expedient, and the
court may from time to time revise and alter
such decree as circumstances may require.
Upon such petition the property of the husband
may be attached in the same manner as upon
a libel for divorce.-^
If the husband is insane and under guardian-
ship, the Probate Court may order an allowance
to be paid to the wife out of his estate.^
SUPPORT OF WIFE DESERTED BY HUSBAND.
Where a husband has deserted or fails to fur-
nish suitable support for his wife, or where the
wife is for a justifiable cause living apart from
her husband, the court will, upon application,
make such order as it deems expedient concern-
ing the support of the wife.^
1 St. 1878, c. 199. 3 St. 1874, c. 205.
2 St. 1862, c. 116.
Laws of 1874. Chapter 184.
An Act in relation to the rights of Husband and TFife. AiJproved
April 24, 1874.
Sect, 1. A married woman may convey her shares in corporations,
and lease and convey her real property, and make contracts oral and
written, sealed and unsealed, in the same manner as if she were sole,
and all work and labor performed by her for others than her husband
and children shall, unless there is an express agreement on her part to
the contrary, be presumed to be on her separate account ; but her sepa-
rate conveyance of real estate shall be subject to her husband's con-
tingent interest therein, and nothing in this act shall authorize a mar-
ried woman to convey property to, or make contracts with, her husband.
Sect. 2. When a deed of land is made to a married woman and at
the same time she mortgages the same to the grantor to secure the pay-
ment of the whole or any part of the purchase-money, or to a third
party to obtain the whole or any part of such purchase-money, the
seisin of such married woman shall not give her husband any estate by
the curtesy as against such mortgagee.
Sect. 3. A married woman may sue and be sued in the same manner
and to the same extent as if she were sole, but nothing herein contained
shall authorize suits between husband and wife.
Sect. 4. A mamed woman may be an executrix, administratrix,
guardian or trustee, and bind herself and the estate she represents
without her husband joining in any conveyance or instrument whatever,
and be bound in the same manner and with the same effect in all re-
spects as if she were sole.
Sect. 5. The first section of chapter four hundred and nine of the
acts of the year eighteen hundred and sixty-nine, and chapter one hun-
dred and sixty-five of the acts of the year eighteen hundred and sixty-
three are hereby repealed.
Sect. 6. Nothing in this act shall impair the validity of any ante-
nuptial or post-nuptial settlement.
ACCESSORY. See Crime.
of wife discharges husband from liability for her support, 50.
is ground for divorce, 6 7.
of -wife for husband, 47.
in crimes, when implied, 47, 49.
of husband for wife, 51.
decreed to wife in case of divorce, 79.
may be refused, 80.
attachment to secure payment of, 80.
security may be required, 80.
ALLOWANCE PENDENTE LITE
may be ordered paid wife during pendency of libel for divorce,
exceeding taxable costs, 78.
may include counsel fees, 79.
ANTE-NUPTIAL CONTRACTS. See Contracts.
Laws of 1874, Ch. 184, 110.
of women on civil process, 64,
of wife by husband, 104.
when deemed illegitimate, 25.
when deemed legitimate, 25.
legitimacy of, not affected by divorce, 81.
settlement of, under poor laws, 92.
share of, in estate of intestate mother, 96.
See Custody of Children.
of -wife, purchased -with money of husband, belongs to hus-
may be express or implied, 72.
is conditional, 72.
implied from cohabitation, 73.
less easily implied against wife than against husband, 73.
is only of facts of which party had knowledge, 74.
must be in writing, 26.
must be made by female minor, 26.
must be recorded, 26.
must be enforced in equity, 27.
not a bar in Probate Court, 27.
CONTRACTS OF MARRIED WOMEN
at common law, 35.
made before marriage, 35.
with reference to separate property, 35.
for necessaries, 36.
valid in all cases except with husband, 37.
coming from other states or abandoned by their husbands, 47.
CONTRACTS BETWEEN HUSBAND AND WIPE
void at law, 38.
perhaps sustained in equity, 40.
in articles of separation, 41.
CONVEYANCE. 5ee Deed ; Gift; Real Estate.
wife not liable for, if committed in presence of her husband, 61.
unless shown not to have been acting under coercion, 61.
liable for burning property belonging to husband, 63.
wife cannot be accessory after fact to crime of husband, 63.
CRUEL AND ABUSIVE TREATMENT
ground for divorce, 69.
when ground for divorce, 68.
right of husband to, 95.
cannot be defeated -witliout consent of husband, 53, 55.
in land mortgaged back for purchase-money, 60.
CUSTODY OF CHILDREN
belongs naturally to parents, 84.
if parents are dead or incompetent, guardian may be appointed,
belongs to father if a suitable person, 85.
father may have habeas corpus for child, 85.
when husband fails to furnish suitable support for wife, or when
wife is justifiably living apart from her husband, 86.
belongs to mother if welfare of child demands it, 86.
during pendency of libel for divorce, 86.
after divorce, 87.
in divorce may be nisi or absolute, 74.
nisi when granted, 75.
made absolute after six months, 75.
effect of absolute decree, 77.
from husband to wife void at law, 29.
perhaps sustained in equity, 30.
from husband to wife through third person, 30.
when ground for divorce, 69, 70.
liability of husband for necessaries for wife after, 49.
support of wife when deserted by husband, 109.
in case of intestacy, 95-97,
jurisdiction of, 65, 66.
causes for, 67-71.
condonation (sea Condonation), 72.
decree (see Decree), 74.
foreign divorces, when valid, 76.
efiect of absolute divorce, 77,
allowance pendente lite, 78.
alimony (see Alimony), 78.
provisions concerning property, 82.
See Custody of Children.
DONATIO CAUSA MORTIS
may be made by married woman, 94.
by husband to wife, 30.
right of wife to, 96.
none in wild lands, 9 7.
in addition to provisions of husband's will, 98.
how released, 55, bQ.
in case of mortgage back for purchase-money, 60.
in case of divorce, 82.
husband and wife take real estate by, 57.
has jurisdiction of ante-nuptial contracts, 27.
may uphold deed from husband to wife, 30.
may make husband trustee for wife, 31, 34.
makes marriage voidable, 20.
transfer of property to defeat decree giving alimony is, 81.
FRIENDS. See Quakers.
of wife, liability of husband for, 50.
from husband to wife, passes no title, 28.
when valid against heirs or legatees, 28.
of real estate may be made through a third person, 30.
of real estate directly, perhaps sustained in equity, 30.
donatio causa mortis to wife, valid, 30.
from wife to husband passes title, 31.
of minor children may be appointed by Probate Court, 84.
may be appointed by will of father, 85.
duties of, limited to estate, if either parent fit to have custody, 85.
may be appointed for married woman, 107.
may be to amount of S 800.00, 89.
how created, 89.
how defeated, 90, 91.
exempt from attachment, 89.
not exempt from levy for taxes, 90.
continues for widow and minor children, 90.
need not be occupied by widow, 90.
cannot be defeated by will of husband, 98.
can give no title to wife, 28.
not liable for ante-nuptial debts of wife, 35.
may be trustee for wife, 30, 31, 34, 40.
liability of, for support of wife and children, 47- 50, 109.
funeral expenses of wife, 50.
crimes of wife, 61, 62.
necessaries furnished wife while prosecuting libel for di-
may not chastise wife, 104.
may be prohibited from imposing restraint on liberty of wife,
right to services of wife, 105.
ILLEGITIMATE ISSUE. See Children.
ground for divorce, 68.
when ground for divorce, 68.
of wife, guardian may be appointed to release dower, 108.
liability of husband for support of, 109.
of husband, court may order allowance for wife, 109.
for benefit of a married woman, independent of assured or of
for benefit of widow and children, assignment of, cannot affect
assignee of such poUcy may maintain action on it, 101.
distribution in case of, 95-97.
when ground for divorce, 69.
ISSUE. See Children.
JUSTICE OF THE PEACE
woman cannot be, 106.
LEGITIMACY OF ISSUE. See Children.
valid if parties are above age of consent, 17.
when void, 1 7 - 20.
when voidable, 20.
may be declared null by court, 20.
or affirmed, 21.
form of ceremony, 21 - 25.
notice of intention, 21.
when solemnized in another state, 22.
solemnized before whom, 22.
among Quakers, 23.
consent of parties only necessary ceremony, 23.
validity not affected by want of jurisdiction or by informality, 23.
of innocent party after divorce, 77.
of guilty party after divorce, void without leave of court, 19, 77.
can take no title from husband directly, 28, 29.
but may through third person, 30.
deed from husband enforced in equity, 30.
separate property of, 32.
own their apparel after death of husband, 33.
liable on contracts, 35 - 38.
cannot contract with husband at law, 38.
possibly may in equity, 40.
may carry on separate business, 43.
may be copartner, except with husband, 46.
may bind estate of husband for necessaries, 47.
may act as agent of husband, 47-51.
not obliged to support husband, 51.
may convey real estate by separate deed, 53.
liabiUty for crimes, 61-63.
liability for torts, 63.
cannot be aiTCsted on civil process, 64.
but may be cited before Probate Court, 64.
settlements of, under poor laws, 92.
may make wills, 93.
may make donatio causa mortis, 94.
distribution of property in case of intestacy, 95.
may be executrix, administratrix, guardian, or trustee, 101.
may be witness, when husband is party, 102.
cannot testify to private conversations with husband, 102.
cannot be compelled to testify when husband is indicted, 102.
not competent witness to will of husband, 103.
cannot be chastised by husband, 104.
may be taxed, 106.
may not be Justice of the Peace, 106.
may be member of School Committee, 107.
liable to penalty for marrying parties below age of consent, 17.
may be made by married women, 59.
to secure husband's debt valid, 58.
back for purchase-money, do not give curtesy, 60.
of wife not extinguished by husband holding equity, 59.
what are, 48.
liability of husband for, of wife, 48 - 50.
of married woman, 46.
when committed, 19, 77.
POST-NUPTIAL SETTLEMENT. See Gift.
of married women, valid, 37.
unless made for debt of husband before 1874, 38.
void at law from wife to husband or vice versa, 39.
of husband void in hands of wife or vice versa, 39.
not void if wife has beneficial interest only, 40.
perhaps enforced in equity, 40.
of co-partnership, liability of married woman on, 46.
form of marriage among, 23.
may be conveyed by married -women, 53.
but subject to curtesy of husband, 53.
conveyance of, to husband and -wife gives title by entireties, 57.
may be mortgaged by married -women, 58.
conveyances of, from husband to -wife, 29.
to libel for divorce, 71.
■woman may be member of, 107.
SEDUCTION OF WIFE
remedy of husband for, 105.
may be carried on by married -woman, 42.
certificate must be filed, 43.
liability if certificate is filed, 43.
-what is, of a mamed -woman, 32, 33.
articles of, 41.
under the poor la-ws, 91.
of ante-nuptial contract, 27.
liability of husband for support of, 50.
of -women, not unconstitutional, 107.
Hability of married -women for, 63.
husband may be, for -wife, 30, 31, 34.
covenants of husband -with, for support of -wife, 41.
assignee of pohcy of insurance for benefit of -wife and child, 101.
for wages of wife or children, 34.
to attach property of wife in hands of husband, 34.
in libel for divorce, 80.
no resulting trust if husband pays consideration for deed to
wife, 56. ■
or if wife pays any part of consideration, 57.
promissary note not good declaration of, 40.
deed of real estate may be good declaration of, 30.
of wife cannot be attached by trustee process for debt of hus-
of provisions of husband's will by wife, 98.
of married woman how far valid, 93.
takes effect from death, 94.
of husband may be waived by wife, 98.
married woman may be, when husband is party, 102.
except as to private conversations with him, 102.
wife cannot be, to will of husband, 103.
under Statute of limitations must have been competent at time
of attestation, 103.
of married women on their separate account, 32.
Printed at the Univexsity Press, Cambridge.