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Northeastern University 

School of Law 













Copyright, 1S78. 



"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 
a parent. 

" 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. 






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 

Agency 47 




Conveyances of Real Estate 53 

Mortgages 58 



Criminal Liability 61 

Torts * . . . .63 

Arrest on Civil Process 64 



Divorce 65 

Recrimination 71 

Condonation . . . . . . . .72 

Decree 74 

Foreign Divorces 76 

Effect of an Absolute Divorce 77 

Allowance Pendente Lite 78 

Alimony 79 

Legitimacy of Issue 81 

Provisions concerning Property .... 82 


Custody op Minor Children 84 










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 



Insurance Policies 

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 










Abbott V. Wincbester 






Adams v. Brackett 



v. Palmer Co. 


Albee v. Wyman 


Cartwright v. Bate 





V. Briggs 


Atbol' Machine Co. v. 

FuUer 36 


V. Kellogg 


Austin V. Cox 







;. Sampson 


Bailey v. Bailey 






Baldwin v. Bald-v\dn 






Bancroft v. Curtis 

30, 45, 57 


, Petitioner 


Bartlett v. Bartlett 






Bassett v. Bassett 


Commonwealth v. Barry 


Baxter v. Knowles 



V. Briggs 85 


Bemis v. Call 



V. Burk 61 


Bigelow V. Bigelow 

86, 105 


V. Butler 


Bigelow V. Hubbard 



V. Carroll 


Blackinton v. Blackinton 28 


V. Cheney 


Blandin, Re 



V. Eagan 


Brettun v. Fox 

91, 98 


V. Feeney 


Brigham v. Maynard 



V. Gannon 


Bro'adstreet v. Broadstreet 67 


V. Heffron 


Broderick v. Waltham Sav- 


V. Kennedy 


ings Bank 



V. Lane 


Brown v. Wood 



V. Mash 


Bullard v. Briggs 



V. Maxwell 


Bullock V. Bullock 



V. McAfee 


Burlen v. Shannon 

49, 67 


V. Munsey 


Biu-r V. Swan 



V. Murphy 


Burroughs v. Xutting 



V. Reynolds 


Burroughs v. State Mutual 


V. Tryon 


Life Ins. Co. 



V. Whalen 


BmTows V. Purple 



V. Williams 


Butler V. Price 


Cormerais v. Wesselhoeft 54 

, 56 





Cairns v. Cairns 


Cram i 

'. Kelley 


Cairns v. Colbum 



V. Crane 




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 

28, 29 

Foss V. Foss 


French v. French 


Gannon v. Housatonic R. R. 

Co. 105 

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 






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 


Re Blandin 


Tucker v. Fenno 


Re Richards 


Turner v. Nye 


Reemie v. Reemie 


Reiman v. Hamilton 


Unity Ass, v Dugan 


Reynolds i?. Reynolds 


Reynolds v. Sweetser 


Wales V. Coffin 

55, 57 

Richards, Re 


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 

73, 76 

"S^Tiite V. Graves 


Shaw V. Shaw 


White V. T\Tiite 

20, 78 

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 




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 


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 




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.^ 


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. 


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- 
tracting marriage. 

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 
legal process.-^ 

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. 


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.^ 


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. 


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. 


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." 


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. 




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. 


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. 


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. 


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 
Cush. 20. 

^ Sweeney v. Boston Five Cents Savings Bank, 116 Mass. 

* Supra. 

* 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. 


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. 


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 


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. 


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. 


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 
remain his.^ 

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. 


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. 


pose of delaying their payment, is liable to a 
fine not exceeding fifty dollars.-^ 


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. 


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. 


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. 

3 Ibid. 


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. 


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. 


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^ 


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. 


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. 


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. 


will the flict that there was an intermingling of 
the property of husband and wife defeat the 
protection afforded.^ 

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. 


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- 
erty only.* 

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. 



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. 



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. 


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. 
^ Ibid. 

^ Willey V. Beach, 115 Mass. 559. 


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. 


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. 


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- 
tates." 2 

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 
Mass. 74. 


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. 




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. 


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 
Allen, 163. 

* 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. 


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. 


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. 


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. 


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. 


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. 


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. 




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. 


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 
Gray, 25. 

^ Com. V. Tryon, 99 Mass. 442. 

* Com. V. Munsey, 112 Mass. 287; Com. v. Burh, 11 
Gray, 437. 

^ 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. 


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 
Mass. 89. 

5 Handy v. Foley, 121 Mass. 259. 



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. 



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 : 

1st. Adultery.^ 

A divorce will not be granted for adultery 
committed with the consent or connivance of 
the libellant.* 

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. 


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. 
^ Ibid. 
8 Ibid. 

* St. 1870, c. 404, § 2. 

5 Coivhs Y. Coivles, 112 Mass. 298 ; Bailey v. Bailey, 97 
Mass. 373. 


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 
do so.* 

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. 


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 
Mass. 155. 

^ 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 
Mass. 202. 

^ 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 



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. 


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 
shall appear.^ 

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. 



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. 




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. 


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 
for polygamy.^ 

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 


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. 


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.^ 


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. 



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 
the husband? 

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. 




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. 


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. 


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. 


"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. 


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. 




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. 



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- 
viously existing.^ 

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. 


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. 


" 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." 

WILLS. 93 



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. 


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. 





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. 


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- 


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. 


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. 



the widow waives the provisions of the will or 


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. 





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. 


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 
assured himself. 

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 
her death.'^ 

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 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 
for him. 


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. 


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.^ 


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 
her husband.* 

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. 

^ Ibid. 

^ Jacobs V. Hesler^ 113 Mass. 157. 


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- 
band's will.* 


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. 


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. 


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.-^ 


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. 




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.-^ 


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. 



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 
being final.-^ 

In 1874 an act was passed, providing that 
no person shall be deemed ineligible to serve 
upon a school committee by reason of sex.^ 


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. 


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.-^ 


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. 


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.^ 


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. 

may be ordered paid wife during pendency of libel for divorce, 

exceeding taxable costs, 78. 

may include counsel fees, 79. 

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. 

112 INDEX. 


of -wife, purchased -with money of husband, belongs to hus- 
band, 33. 

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. 

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. 

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. 

ground for divorce, 69. 

when ground for divorce, 68. 

right of husband to, 95. 

INDEX. 113 

cannot be defeated -witliout consent of husband, 53, 55. 
in land mortgaged back for purchase-money, 60. 

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. 
recrimination, 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. 

114 INDEX. 

provisions concerning property, 82. 
See Custody of Children. 

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. 

INDEX. 115 

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. 
step-children, 50. 
funeral expenses of wife, 50. 
crimes of wife, 61, 62. 

necessaries furnished wife while prosecuting libel for di- 
vorce, 80. 
may not chastise wife, 104. 
may be prohibited from imposing restraint on liberty of wife, 

right to services of wife, 105. 

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 

creditors, 99. 
for benefit of widow and children, assignment of, cannot affect 

children, 100. 
assignee of such poUcy may maintain action on it, 101. 

distribution in case of, 95-97. 

116 INDEX. 


when ground for divorce, 69. 
ISSUE. See Children. 

woman cannot be, 106. 

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. 

certificate, 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. 

INDEX. 117 

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. 

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. 

118 INDEX. 


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. 
See Deed. 

to libel for divorce, 71. 

SCHOOL com:>uttee 

■woman may be member of, 107. 

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. 
See Gift. 

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. 

INDEX. 119 


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- 
band, 34. 

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.