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THE 


LAW  OF  MARRIED  WOMEN 


IN 


MASSACHUSETTS, 


BY 


CHARLES  ALMY,  Jr.,  and  HORACE  W.  FULLER,, 

OF  THE   SUFFOLK   BAR. 


V' 


BOSTON: 

PUBLISHED  BY  GEORaE  B.  REED. 

1878. 


Copyright,  1S78. 
By  CHARLES  ALMY,  Je.,  a>T)  HORACE  W.  FULLER. 


PRDTTED  AT  THE  UXIVERSITT  PRE33, 
CAMBRIDGE. 


INTRODUCTION, 


"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. 


IV  IXTEODUCTION. 

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 


IXTRODUCTIOX.  V 

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 
calumniator. 

"  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." 


VI  INTRODUCTION. 

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. 


INTRODUCTION.  Vll 

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. 


Vlll  INTRODUCTION. 

made.^  The  acts  of  1845,  1846,  1855,  and  1857 
are  substantially  the  provisions  contained  in  the 
General  Statutes  of  1860.  The  last  legislation 
was  in  1874,^  under  which  the  rights  of  married 
women  to  contract,  to  make  promissory  notes,  or 
mortgages,  to  sell  real  estate,  to  sue  and  be  sued, 
are  precisely  the  same  as  those  of  her  husband, 
except  the  difference  between  her  dower  and 
his  curtesy,  of  which  neither  can  bar  the  other. 
In  1877,  and  again  in  1878,  a  bill  was  passed  by 
the  Senate  to  legalize  contracts  between  hus- 
bands and  wives,  and  providing  that  the  wife 
should  own  her  wardrobe  and  articles  of  per- 
sonal ornament,  but  it  was  defeated  each  year 
in  the  House. 

.  1  St.  1857,  c.  249.  2  gt^  1874,  c.  184. 


TABLE   OF  CONTENTS. 


Page 

INTRODUCTION iii 


CHAPTER  I. 

MARRIAGE. 

Who  may  Marry 17 

TThat  Marriages  are  Void 17 

What  Marriages  are  Voidable 20 

How  Married 21 

Legitimacy  of  Issue 25 


CHAPTER  11. 

CONTRACTUAL   POWERS. 

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 


10  TABLE   OF   CONTEXTS, 


CHAPTER  in. 


EEAL    ESTATE. 

Conveyances  of  Real  Estate 53 

Mortgages 58 


CHAPTER  IV. 

CRIMINAL    LIABILITY.  —  TORTS.  —  ARREST. 

Criminal  Liability 61 

Torts *     .         .         .         .63 

Arrest  on  Civil  Process 64 

CHAPTER  V. 

DIVORCE. 

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 

CHAPTER  VL 

Custody  op  Minor  Children 84 


TABLE   OF   CONTENTS. 


11 


CHAPTER  VII. 

HOMESTEADS   AND    SETTLEMENTS. 


Homesteads 
Settlements 


89 
91 


CHAPTER  VIII. 


Wills 


CHAPTER  IX. 

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 

CHAPTER   X. 

OTHER   RIGHTS   AND   LIABILITIES, 


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 


APPENDIX 
INDEX  . 


93 


95 

96 
98 


99 
101 
102 
103 
105 
106 
106 
107 
107 
108 
109 

110 
111 


TABLE  OF  CASES  CITED. 


Page 

Page 

Abbott  V.  Wincbester 

39 

Cahill 

V. 

Campbell 

45 

Adams  v.  Brackett 

28 

Camerlin 

v.  Palmer  Co. 

50 

Albee  v.  Wyman 

41,42 

Cartwright  v.  Bate 

50 

Anonymous 

74 

Chapman 

V.  Briggs 

44 

Atbol' Machine  Co.  v. 

FuUer   36 

Chapman 

V.  Kellogg 

39 

Austin  V.  Cox 

63 

Child's 

C 

ase 

78 

Child 

;.  Sampson 

54 

Bailey  v.  Bailey 

68 

Clapp 

V. 

Clapp 

67 

Baldwin  v.  Bald-v\dn 

79 

Coates 

V. 

Gerlach 

30 

Bancroft  v.  Curtis 

30,  45,  57 

Cochrane 

,  Petitioner 

77 

Bartlett  v.  Bartlett 

59 

Comer 

V. 

Chamberlain 

95 

Bassett  v.  Bassett 

38 

Commonwealth  v.  Barry 

62 

Baxter  v.  Knowles 

28 

(( 

V.  Briggs    85 

,86 

Bemis  v.  Call 

60 

(( 

V.  Burk      61 

,62 

Bigelow  V.  Bigelow 

86,  105 

(( 

V.  Butler 

62 

Bigelow  V.  Hubbard 

42 

u 

V.  Carroll 

62 

Blackinton  v.  Blackinton          28 

u 

V.  Cheney 

61 

Blandin,  Re 

41 

(( 

V.  Eagan 

61 

Brettun  v.  Fox 

91,  98 

i( 

V.  Feeney 

62 

Brigham  v.  Maynard 

97 

u 

V.  Gannon 

61 

Bro'adstreet  v.  Broadstreet       67 

u 

V.  Heffron 

63 

Broderick  v.  Waltham  Sav- 

n 

V.  Kennedy 

62 

ings  Bank 

29 

il 

V.  Lane 

19 

Brown  v.  Wood 

103 

tl 

V.  Mash 

78 

Bullard  v.  Briggs 

30 

u 

V.  Maxwell 

86 

Bullock  V.  Bullock 

78 

u 

V.  McAfee 

104 

Burlen  v.  Shannon 

49,  67 

ii 

V.  Munsey 

62 

Biu-r  V.  Swan 

36 

ii 

V.  Murphy 

62 

Burroughs  v.  Xutting 

94 

ii 

V.  Reynolds 

62 

Burroughs  v.  State  Mutual 

11 

V.  Tryon 

62 

Life  Ins.  Co. 

101 

ii 

V.  Whalen 

62 

BmTows  V.  Purple 

79,81 

ii 

V.  Williams 

32 

Butler  V.  Price 

51 

Cormerais  v.  Wesselhoeft  54 

,  56 

Cowles 

V. 

Cowles 

68 

Cairns  v.  Cairns 

67 

Cram  i 

'.  Kelley 

37 

Cairns  v.  Colbum 

56 

Cranston 

V.  Crane 

55 

TABLE   OF    CASES    CITED. 


13 


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 

48 

Eaton  V.  Eaton 

6Q 

Edgerlv  v.  Edgerly 

56 

Edwards  v.  Stevens 

46 

Eldred  v.  Eldred 

71 

Faucett  v.  Cmrier 

54 

Fera  v.  Fera 

70 

Feran  v.  Rudolphsen 

43,44 

Field  V.  Gooding 

29 

Fisk  V.  Ciishman 

28,  29 

Foss  V.  Foss 

20 

French  v.  French 

72 

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 


38 

106 

41 
51 


14 


TABLE   OF   CASES   CITED. 


Parton  v.  Hervey 

17 

Stetson  V.  0' Sullivan 

29 

Peabody  v.  Peabody 

71 

Stuart  V.  Stuart 

81 

Peabody  v.  School  Com. 

of 

Sullings  V.  Richmond 

28 

Boston 

107 

Sulhngs  V.  Sullings 

27 

Pease  v.  Allis 

103 

Swan  V.  Snow 

101 

Perkins  v.  Richardson 

56 

Sweeney    v.    Boston    Five 

Phillips  V.  Frye 

40 

Cents  Savings  Bank 

29 

Pierce  v.  Chace 

58 

Pierce  v.  Thompson 

30 

Tarbell  v.  Tarbell 

27 

Plumer  v.  Lord 

46 

Thomson  v.  O'Sullivan 

28,29 

Proper  v.  Cobb 

45 

Thurston  v.  Thurston 

70 

Towle  V.  Towle 

29 

Eaynes  v.  Bennett 

47,48 

Townsley  v.  Chapin 

55 

Re  Blandin 

41 

Tucker  v.  Fenno 

59 

Re  Richards 

41 

Turner  v.  Nye 

89,40 

Reemie  v.  Reemie 

67 

Reiman  v.  Hamilton 

52 

Unity  Ass,  v  Dugan 

100 

Reynolds  i?.  Reynolds 

20 

Reynolds  v.  Sweetser 

49 

Wales  V.  Coffin 

55,  57 

Richards,  Re 

41 

Walker  v.  Walker 

31 

Robbins  v.  Robbins 

72 

Wallingsford  v.  Allen 

30 

Robbins  v.  Potter 

38 

Walsh  V.  Young 

58 

Robinson  v.  Trofitter 

34,41 

Warner  v.  Cronch 

54 

Roby  V.  Phelon 

39 

Webster  v.  Potter 

33 

Rogers  v.  Rogers 

74 

Weed  Sewing  Mach.  Co. 

V. 

Rogers  v.  Ward 

35 

Emerson 

60 

Westgate  v.  Munroe 

36 

Savage  v.  "Winchester 

60 

^Vheeler  v.  Wall 

106 

Sewall  V.  Sewall 

73,  76 

"S^Tiite  V.  Graves 

56 

Shaw  V.  Shaw 

66 

White  V.  T\Tiite 

20,  78 

Shepard  v.  Shepard 

30,41 

Whitney  v.  "\^'^leele^ 

30 

Silsby  V.  Bullock 

93 

Wight  V.  Shaw 

54 

Slawson  v.  Loring 

39 

Wilder  V.  Richie 

38 

Smith  V.  Smith 

76 

Willard  v.  Eastham      35 

,  36,  59 

Smith  V.  Sweet 

93 

Willey  V.  Beach 

48 

Snow  V.  Paine 

31,57 

Wilhams  v.  Hayward 
WilUams  v.  Williams 

36 

Southwick  V.  Southwick 

70 

97 

Sparhawk  v.  Sparhawk 

80 

Worcester  v.  Marchant 

60 

Spaulding  v.  Day 

33 

Stearns  v.  0' Sullivan 

29 

Yale  V.  Wheelock 

36 

Stearns  v.  Bullens 

40 

TABLE  OF  STATUTES  CITED. 


Page 

Gen.  St.  Chap.  58 99 

«   "  "    90 97 

"   «  «    94 95,96,97,102 

«   "  "    96 33,97 

"   "  '«    104 90,  91 

«   «  "    106 17,19,21,22,23 

«  "  «  107   19,  20,  21,  25,  65,  66,  67,  68,  69,  70,  75,  76, 

77,  79,  80,  81,  82,  86,  87,  88 

"  "  "  108   26,  27,  28,  30,  32,  35,  42,  47,  53,  56,  93,  108 

«   «  "    109 84,85 

«   «  "    124 64 

"   "  "    155 103 

«   "  ''    161 63 

"   «  "   165 18,19 

«t   «  «    168 63 

St.  1861  Chap.  164 98 

«  1862  "   116 109 

"   "  "   162 64 

"   "  «   198 43,62 

"  1863  "    165 46 

"1864  «   197 99 

"   «  "   198 94 

«   «  «   276 94 

«  1866  "   148 80 

"1867  "    58 21 

«   «  "    222 75 


16  TABLE   OF   STATUTES    CITED. 

St.  1867  Chap. 248 27 

"1868  "        95 34 

"1869  "       292 26 

«      "  "       409 102 

"    1870  "       393 102 

"      "  "       404 68,  69,  71,  82 

"    1871  "         97 98 

'<      «  "       200 98 

"   1873  "         58 98 

"      «  "       367 85 

"      "  «       371 69,75,77,79,87 

«  1874  "       184 32,  46,  101 

«      "  "      205 86,105 

«      "  "       389 107 

«      «  "       397 75 

"1875  "       226 75 

"1876  "       220 96 

"    1877  «         83 95 

"      "  "       1 74 65 

"      «  "        178 79,83 

<'  1878  "        199 109 

«       «  "       260 85 


LAW  OF  MARRIED  WOMEN 


CHAPTER    I 

MARRIAGE. 
WHO    MAY   MARRY. 


All  persons  subject  to  the  exceptions  here- 
inafter enumerated  are  capable  of  binding  them- 
selves in  marriage  who  have  arrived  at  the  age 
of  consent,  which,  in  this  commonwealth,  as 
by  the  common  law,  is  twelve  in  females  and 
fourteen  in  males.  A  marriage  between  two 
infants  of  or  above  these  ages  is  valid,  even 
without  the  consent  of  the  parents  or  guar- 
dians,-^ although  the  statutes  impose  a  penalty 
upon  any  magistrate  or  minister  who  performs 
the  ceremony  in  such  case.^ 

WHAT   MARRIAGES   ARE   VOID. 

Chapter  106  of  the  General  Statutes  provides 
that  no  woman  shall  marry  her  father,  grand- 

^  Parton  v.  Hervey,  1  Gray,  119. 
2  GeD.  St.  c.  106,  §§  13,  18. 
1 


18  LAW   OF   MARRIED    WOMEN. 

father,  son,  grandson,  step-father,  brother,  grand- 
mother's husband,  daughter's  husband,  grand- 
daughter's husband,  husband's  fatlier,  husband's 
grandfather,  husband's  son,  husband's  grandson, 
brother's  son,  sister's  son,  father's  brother,  or 
mother's  brother ;  and  in  the  cases  mentioned 
in  which  the  relationship  is  founded  on  mar- 
riage, tlie  prohibition  continues,  notwithstand- 
ing the  dissolution  of  such  marriage  by  death 
or  divorce,  unless  the  divorce  is  for  a  cause 
which  shows  the  marriage  to  have  been  origi- 
nally unlawful  or  void. 

Xo  insane  person  or  idiot  is  capable  of  con- 
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 
imprisonment.-^ 

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. 


MAKEIAGE.  19 

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. 


20  LAW    OF   MARRIED   WOMEX. 

court,  does  not  render  such  marriage  valid,  and 
it  cannot  be  made  valid  by  a  special  act  of  the 
legislature,  as  such  act  would  be  unconstitu- 
tional.-^ 

If  the  parties  to  a  marriage,  solemnized  when 
either  of  them  was  under  the  age  of  consent, 
separate  during  such  nonage,  and  do  not  after- 
wards cohabit,  the  marriage  will  be  void  without 
a  decree  of  divorce  or  other  legal  process.^ 

WHAT   MARRIAGES   ARE   VOIDABLE. 

Fraud  vitiates  all  contracts,  and  the  contract 
of  marriage  is  no  exception  to  this  rule.  A 
marriage  procured  by  force  or  fraud  will,  upon 
application  to  the  court,  be  decreed  to  be  null 
and  void  ;  so,  if  a  marriage  is  supposed  to  be 
void,  or  the  validity  thereof  is  doubted  for  fraud 
or  other  cause,  either  party  may  file  a  libel  for 
annulling  the  same.^ 

So  also,  when  the  validity  of  a  marriage  is 

1  WTiite  V.  White,  105  Mass.  325. 

2  Gen.  St.  c.  107,  §  3. 

^  Ibid.  §  4.  See  Reynolds  v.  Reynolds,  3  Allen,  605  ; 
Donovan  v.  Donovan,  9  Allen,  140  ;  Foss  v.  Foss,  12  Allen, 
26  ;  Crehore  v.  Crehore,  97  Mass.  330. 


MARRIAGE.  21 

denied  or  doubted  by  either  party,  the  other 
party  may  file  a  libel  for  afiQrming  the  mar- 
riage.-^ 

HOW   MARRIED. 

Persons  intending  to  be  joined  in  marriage 
shall  before  their  marriage  cause  notice  thereof 
to  be  entered  in  the  office  of  the  clerk  or  regis- 
trar of  the  city  or  town  in  which  they  respec- 
tively dwell,  if  within  the  state.  If  there  is  no 
such  clerk  or  registrar  in  the  place  of  their 
residence,  the  entry  shall  be  made  in  an  adjoin- 
ing city  or  town.^ 

If  they  live  without  the  commonwealth,  and 
intend  to  be  joined  in  marriage  within  the 
commonwealth,  this  notice  of  their  intention 
must  be  entered  with  the  clerk  or  registrar  of 
the  city  or  town  in  which  they  propose  to  have 
the  marriage  solemnized.^ 

The  clerk  or  registrar  must  thereupon  deliver 
to  the  parties  a  certificate  specifying  all  facts  in 
relation  to  the  marriage  required  by  law  to  be 
ascertained  and  recorded,  and  this  certificate 
shall  be    delivered  to  the    minister   or   magis- 

1  Gen.  St.  c.  107,  §  5.  s  g^.^  13(37^  c.  58,  §  1. 

2  Gen.  St.  c.  106,  §  7. 


22  LAW    OF   MARRIED    WOMEN". 

trate  before  lie  proceeds  to  solemnize  the  mar- 
riage.-^ 

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. 


MARRIAGE.  23 

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 
marriage.^ 

No  peculiar  ceremonies  are  requisite,  and  no 
form  of  words  is  established,  for  the  solemniza- 
tion of  marriage.  The  consent  of  the  parties  is 
the  great  essential,  and  it  is  sufficient  if  they 
contract  in  some  form  or  other  before  a  justice 
of  the  peace  for  the  county  in  which  either  of 
them  resides,  or  a  minister  who  resides  within 
the  state,  and  he  assents  to  the  proceeding,  act- 
ing in  his  official  capacity.^ 

1  Gen.  St.  c.  106,  §  15.      »  Milford  v.  Worcester,  7  Mass.  48. 

2  Ibid.  6  20. 


24  LAW   OF   MAEEIED   WOMEN. 

It  lias  been  held  that  the  actual  assent  of 
the  magistrate  or  minister  is  not  necessary  if 
the  contracting  parties  really  believe  that  he 
assents.-^ 

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. 


MARRIAGE.  25 

tion  of  marriage,  if  the  marriage  is  in  other 
respects  lawful,  and  is  consmnmated  with  a  full 
belief  on  the  part  of  the  person  so  married,  or 
either  of  them,  that  they  have  been  lawfully 
joined  in  marriage." 

LEGITIMACY   OF   ISSUE. 

The  issue  of  a  marriage  dissolved  by  a  divorce 
or  sentence  of  nullity,  on  account  of  consan- 
guinity or  affinity  between  the  parties,  wdll  be 
deemed  to  be  illegitimate.-^ 

The  issue  of  a  marriage  dissolved  on  account 
of  the  nonage,  insanity,  or  idiocy  of  either  party 
will  be  deemed  to  be  the  legitimate  issue  of 
the  parent  who  was  capable  of  contracting  the 
marriage.^ 

When  a  marriage  is  dissolved  on  account  of  a 
prior  marriage  of  either  party,  and  it  appears 
that  the  second  marriage  was  contracted  in 
good  faith,  and  with  the  full  belief  of  the  par- 
ties that  the  former  husband  or  wife  was  dead, 
the  issue  will  be  deemed  the  legitimate  issue  of 
the  parent  capable  of  contracting  the  marriage.^ 

1  Gen.  St.  c.  107,  §  28.         =  Ibid.  §  29.         ^  Ibid.  §  30. 


26  LAW   OF   MARRIED   WOMEN. 

CHAPTER    II. 

CONTRACTUAL   POWERS. 
ANTE-NUPTIAL   CONTRACTS. 

It  is  provided  by  statute  that  at  any  time 
before  their  marriage  the  parties  may  enter  into 
a  contract  in  writing,  providing  that  after  the 
marriage  the  whole  or  any  part  of  the  estate, 
real  or  personal,  of  either,  or  any  right  of  action 
of  either,  shall  remain  or  become  the  property 
of  the  husband  or  wife  according  to  the  terms  of 
the  contract.-^  A  female  minor  above  the  age  of 
eighteen  years  may  join  with  her  guardian  in 
making  such  a  contract,  in  which  case  it  will 
have  the  same  effect  as  if  she  were  of  full  age.^ 
There  must  be  annexed  to  the  contract  a  sched- 
ule containing  a  clear  description  of  the  prop- 
erty to  be  affected  by  it,  and  both  contract  and 
schedule  must  be  recorded  within  ninety  days 
from  the  marriage,  in  the  Registry  of  Deeds 
for  the  county  where  the  husband  lived  at  the 

^  Gen.  St.  c.  108,  §  27.  =  St.  1869,  c.  292. 


CONTRACTUAL   POWERS.  27 

time  of  tlie  record,  or  if  lie  was  not  a  resident 
within  this  state,  for  the  county  where  the  wife 
resided  at  the  time  of  the  record,  if  it  is  recorded 
before  marriage,  or  in  which  she  last  resided,  if 
recorded  after  the  marriage,  and  also  in  every 
county  or  district  in  which  there  are  lands  to 
which  it  relates.  If  not  so  recorded,  it  is  void, 
except  between  the  parties  to  it.-^  But  when 
the  contract  relates  only  to  the  rights  which  the 
survivor  may  claim  in  the  estate  of  the  other 
after  the  marriage  relation  has  been  ended  by 
death,  its  validity  does  not  depend  on  the  stat- 
ute, and  it  need  not  be  recorded? 

The  contract  must  be  enforced  in  equity, 
where  specific  performance  may  be  decreed,^  if 
it  was  entered  into  understandingly,*  but  not  in 
favor  of  a  party  whose  part  of  the  contract  has 
not  been  performed.^  Although  it  provides  that 
the  wife  shall  make  no  claim  on  her  husband's 
estate  after  his  death,  it  is  no  bar  to  a  claim  in 

1  Gen.  St.  c.  108,  §  28;  St.  1867,  c.  248. 

2  JenUns  v.  Holt,  109  Mass.  261. 

^  Miller  v.  Goodwin,  8  Gray,  542 ;  Lawrence  v.  Bartletty 
2  Allen,  36. 

*  Tarhell  v.  Tarhell,  10  Allen,  278. 
^  Sullings  v.  Sullings,  9  Allen,  234. 


28  LAW    OF   MARRIED   WOMEN. 

the  Probate  Court  for  an  allowance  for  necessa- 
ries/ or  for  a  distributive  share  of  the  estate.^ 

POST-NTTPTIAL   SETTLEMENTS. 

As,  by  the  common  law,  the  property  of  the 
wife  was  absolutely  vested  in  the  husband  by 
the  marriage,  of  course  she  could  take  no  legal 
title  from  him  by  a  direct  gift.^  And  the  statutes 
providing  for  the  holding  of  separate  property 
by  married  women  expressly  provide  that  noth- 
ing in  them  shall  authorize  a  husband  to  give 
or  convey  property  to  his  wife.*  But  such 
a  gift  of  personal  property,  if  kept  distinct 
and  separate  by  the  wife,  and  not  mixed  with 
his  property,  so  that  it  cannot  be  distinguished, 
will  be  good  after  his  death  against  his  legal 
representatives^  or  legatees,^  but    not  against 

^  Blackinton  v.  BlacMnton,  110  Mass.  461. 
^  Sullings  V.  Richmond,  o  Allen,  187. 

*  Thomson  v.  0' Sullivan^  6  Allen,  303;  Baxter  v.KnowleSy 
12  Allen,  114;  HawJcins  v.  Providence  and  VTorcester  R.  R., 
119  Mass.  596. 

*  Gen.  Sts.  c.  108,  §  10. 

^  Adams  v.  Bracl-etf,  5  Met.  280 ;  McChiskey  v.  Frov.  Inst 
for  Savings,  103  Mass.  300. 
^  Fisk  V.  Cushman,  6  Gush.  20. 


COXTRACTUAL   POWERS.  29 

creditors,  and  he  can  reduce  it  to  possession 
at  any  time  before  his  death.-^  This  rule  as 
to  reduction  to  possession  seems  to  have  been 
broken  in  upon  by  a  later  decision,  that  a  man 
who  has  deposited  money  in  a  savings  bank 
in  the  name  of  his  wife  cannot  maintain  an 
action  against  the  bank  for  it,  after  notifying 
them  that  it  was  his.^  It  is  difficult  to  reconcile 
this  decision,  either  with  Toivle  v.  Toidef  or  with 
BrodericJc  v.  Waltham  Savings  BanJc^  in  which  one 
who  deposited  in  the  name  of  another  not  his 
wife  was  allowed  to  maintain  an  action  against 
the  bank  for  the  amount  of  his  deposit. 

A  conveyance  of  real  estate  directly  from 
husband  to  wife  is  absolutely  void  at  law.'^     But 

^  Towle  Y.  Toii'Ie,  114  Mass.  167;  Fisk  v.  Cuskman,  6 
Cush.  20. 

^  Sweeney  v.  Boston  Five  Cents  Savings  Bank,  116  Mass. 
384. 

*  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. 


30  LAW   OF  MARRIED   WOMEN. 

the  pro\dsion  in  the  statute  against  conveyances 
from  husband  to  wife  -^  does  not  prevent  a  con- 
veyance by  him  to  her  of  either  real  or  personal 
property,  through  a  third  person,  which  was 
good  at  common  law,^  unless  he  was  insolvent 
at  the  time  of  making  it/  in  which  case  it  will 
be  good  against  creditors  of  her  husband,  if 
it  was  for  a  valuable  consideration,  as,  for  in- 
stance, her  releasing  dower  in  another  estate  * 
Nor  does  the  statute  prevent  a  husband  from 
making  a  valid  donatio  causa  mortis  to  his  wife,  as 
it  would  not  be  construed  to  render  invalid  what 
was  before  held  to  be  valid.*  But  although  a 
deed  of  real  estate  from  the  husband  directly  to 
his  wife  is  void  at  law,  it  is  possible  that  a  court 
of  equity  would  uphold  it  as  a  good  declaration 
of  a  trust.^ 

If  a  woman  pays  money  out  of  her  separate 

1  Gen.  St.  c.  108,  §  10. 

2  Motte  V.  Alger,  15  Gray,  322. 

^  Billiard  Y.  Briggs,  7  Pick.  533  ;  Peirce  v.  Thompson,  17 
Pick.  391  ;  Bancroft  v.  Curtis,  108  Mass.  47. 

^  Wldtney  v.  Wheeler,  116  Mass.  490;  Lawsonx.  Laivson, 
1  P.  Wms.  441. 

^  See  1  Perry  on  Trusts,  §  95  ;  2  Kent  Com.  129,  note  c; 
Wallingsford  v.  Allen,  10  Peters,  583,  594 ;  Shepard  v. 
Shepard,  7  Johns.  Ch.  57 ;  Coates\.  Gerlach,  44  Penn.  St.  43. 


CONTRACTUAL   POWERS.  31 

estate  to  her  husband,  it  will  be  deemed,  in  the 
absence  of  proof,  to  have  been  given  to  him 
with  the  intention  that  it  should  be  applied  to 
the  use  or  benefit  of  either  or  both  of  them  at 
his  discretion,  and  she  cannot  recover  it  back 
from  his  executor.^  But  the  husband  can  re- 
turn money  placed  in  his  keeping  by  his  wife, 
and  the  transaction  will  not  be  a  gift,  but,  if 
free  from  any  fraudulent  intent,  will  be  good 
against  creditors.^  If  it  can  be  shown  that  the 
husband  took  the  money  from  his  wife  to  hold 
in  trust  for  her,  a  court  of  equity  will  give  her 
relief.^ 

WHAT   PROPERTY   IS    SOLE. 

At  common  law,  by  marriage  all  the  personal 
property  of  the  woman  absolutely  vested  in  her 
husband.  All  her  choses  in  action  might  be 
reduced  to  possession  at  any  time  during  the 
marriage,  but  if  they  were  not,  on  the  dissolu- 
tion of  the  marriage,  either  by  the  death  of  the 
husband  or  by  a  divorce,  they  remained   the 

^  Jacobs  V.  Hesler,  113  Mass.  157. 

^  Snovj  V.  Paine,  114  Mass.  520. 

»  Walker  V.  Walker,  9  Wall.  743,  753. 


32  LAW   OF   MAERIED    WOMEN. 

property  of  the  wife.^  The  only  way  in  which 
she  could  have  any  separate  estate  was  through 
the  medium  of  a  trustee.  And  even  now,  in  the 
absence  of  all  proof,  the  presumption  is  that  any 
goods  or  money  held  by  the  wife  belongs  to 
the  husband.  The  enabling  statutes  do  not  do 
more  than  allow  this  presumption  to  be  rebut- 
ted.^ But  any  property  of  which  a  woman  was 
possessed  before  marriage,  and  any  that  comes 
to  her  by  descent,  devise,  bequest,  grant,  or  gift 
from  any  one,  except  her  husband,  that  which 
she  acquires  by  her  business  or  labor  on  her 
separate  account,  and  that  which  she  receives 
for  releasing  dower  by  a  deed  subsequent  to  the 
conveyance  of  her  husband,  and  the  rents  and 
profits  of  the  same,  after  marriage,  are  her 
separate  property,  free  from  the  control  of  her 
husband,  and  from  liability  for  his  debts.^  All 
work  and  labor  done  by  her  for  others  than 
her  husband  and  children  is,  unless  there  is  an 
express  agreement  on  her  part  to  the  contrary, 
presumed  to  be  on  her  separate  account."*  If 
she  purchases  property  with  her  own   means, 

1  Legg  v.  Legg,  8  Mass.  99.  ^  St.  1874,  c.  184,  §  1. 

2  Com.  V.  Williams,  7  Gray,  337. 
8  .Gen.  St.  c.  108,  §  1. 


COXTRACTUAL   POWERS.  33 

and  upon  her  own  credit  exclusively,  it  be- 
comes her  own,  and  the  only  question  is  from 
whom  the  consideration  proceeds.  There  is  no 
need  of  any  words  in  the  conveyance  of  per- 
sonal property  limiting  it  to  her  separate  use, 
and  probably  not  in  a  deed  of  real  estate.^  But 
if  she  mixes  her  money  or  other  personal  prop- 
erty with  that  of  her  husband,  so  that  it  can- 
not be  separated  and  ascertained,  she  thereby 
loses  all  control  over  it.^  Similarly,  if  a  husband 
builds  a  house  on  land  belonging  to  his  wife, 
it  belongs  to  her,  and  as  they  cannot  contract 
with  each  other,  he  will  not  be  heard  to  say 
there  was  any  agreement  by  which  it  was  to 
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. 
3 


34  LAW   OF   MARRIED   WOMEX. 

The  husband  may  be  a  trustee  for  his  wife. 
Manual  possession  by  him  of  her  personal  prop- 
erty is  not  necessarily  inconsistent  with  her 
separate  title.  Probably  he  can  be  charged  in 
trustee  process,  but  only  for  property  in  his 
hands  specifically  as  the  separate  property  of 
his  wife  at  the  time  of  service  of  process  upon 
him.  The  previous  receipt  of  money,  under  cir- 
cumstances which  would  make  him  liable  to  any 
other  person  for  "money  had  and  received/' 
would  not  alone  be  sufficient  to  charge  him  as 
trustee  for  his  wife  in  an  action  at  law,  because 
the  relation  of  debtor  and  creditor  cannot  sub- 
sist between  them.  Such  a  remedy  at  law,  of 
so  limited  and  uncertain  character,  is  not  plain, 
complete,  or  adequate,  and  a  bill  in  equity  will 
lie  to  charge  the  husband  as  trustee.-^ 

No  j)erson  can  be  adjudged  a  trustee  by 
reason  of  any  money  or  credits  in  his  hands, 
due  for  the  wages  of  the  personal  labor  or  ser- 
vices of  the  wife  or  minor  children  of  the  defend- 
ant in  trustee  process.^  Any  one  who  wilfully 
causes,  or  aids  and  abets  in  causing,  such  wages 
to  be  attached  by  trustee  process,  for  the  pur- 

^  Rohiiison  V.  Trofitter,  109  Mass.  478. 
2  St.  1868,  c.  95. 


CONTEACTUAL   POWERS.  35 

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

CONTRACTS    OF   MARRIED   WOMEJT. 

At  common  law  the  husband  assumed  by 
marriage  all  the  debts  of  his  wife,  and  his  goods 
or  body  could  be  taken  on  a  judgment  for  her 
debt  contracted  before  marriage.  Any  right  of 
action  against  her  was  suspended  during  the 
coverture,  but  was  revived  by  the  death  of  her 
husband.  Any  contract  made  by  her  after  mar- 
riage was  absolutely  void  at  law,  though  fre- 
quently sustained  in  a  court  of  equity,  as  a 
charge  upon  her  separate  estate.^ 

By  the  Gen.  St.  c.  108,  a  married  Avoman  was 
made  liable  on  causes  of  action  which  arose 
before  the  marriage,  and  her  husband  was  re- 
lieved of  his  liability  for  them.^  She  was  also 
allowed  to  make  contracts  with  reference  to  her 
separate  property,  and  sue  and  be  sued  on  them 
as  if  sole.     If  the  contract  did  not  relate  to  her 

^  St.  1878,  c.  260,  §  2. 

2  See  Willard  v.  Uastham,  15  Gray,  328 ;  Rogers  v.  Ward, 
8  Allen,  387. 

3  Gen.  St.  c.  108,  §  8. 


36  LAW    OF   MARRIED   WOME^. 

separate  property  it  was  void.  It  was  held  that 
a  woman  who  signed  a  bail-bond  as  surety  for 
her  husband  was  not  liable  on  it.-^  Payment  of 
a  note  given  by  a  wife  for  the  debt  of  her  hus- 
band without  any  consideration  received  by  her 
or  any  benefit  to  her  separate  estate,  could  not 
be  enforced  at  law,^  nor  in  equity,  as  a  charge 
on  her  separate  estate.^  But  a  note  given  in 
payment  of  work  done  on  land  owned  by  a 
woman  and  her  husband  jointly  was  held  to  be 
a  contract  with  reference  to  her  separate  prop- 
erty.* If  work  is  done  on  the  separate  property 
of  a  married  woman  with  her  knowledge,  it  is 
evidence  that  she  agreed  to  pay  for  it,  but  raises 
no  presumption  of  law  that  she  did  so.^ 

By  the  Statute  of  1871,  c.  304,  a  married 
woman  was  allowed  to  make  contracts  for  neces- 
saries to  be  furnished  for  herself  or  family,  and 
to  sue  and  be  sued  thereon  as  if  sole  ;  but  the 
act   provides  that  this  should  not  exempt  the 

^  Yale  V.  Wkeelock,  109  Mass.  502. 

^  Athol  Machine  Co.  v.  Fuller^  107  Mass.  437  ;  Williams  v. 
Hayivard,  117  Mass.  532. 

3  Willard  V.  EastJiam,  15  Gray,  328. 

4  Burr  Y.  Swan,  118  Mass.  588. 

5  Westgate  v.  JIunroe,  100  Mass.  227. 


CONTRACTUAL    POWERS.  37 

husband  from  his  common-law  liability  for  the 
support  of  his  wife  and  family. 

The  Statute  of  1874,  c.  184,  removed  the 
restriction  as  to  separate  property,  and  allowed 
a  married  woman  to  sue  and  be  sued  on  all 
contracts,  except  with  her  husband,  as  if  sole. 
Under  it  the  rights  and  liabilities  of  a  wife  as  to 
contracts  seem  to  be  precisely  the  same  as  those 
of  the  husband.  But  it  does  not  make  her  liable 
on  any  contracts  made  before  its  passage,  which 
were  void  when  made.-^  Since  that  statute  the 
wife  has  been  held  liable  on  a  joint  note  by  her 
and  her  husband,  although  the  consideration  for 
the  note  was  a  debt  of  the  husband.^  But  as 
the  husband  and  wife  are  incapable  of  contract- 
ing with,  or  suing  each  other,  no  contract  of 
indemnity  can  be  made  or  implied  in  such  case 
between  them,  as  there  might  be  in  the  case  of 
strangers.^  If  a  loan  is  made  to  a  married 
woman  upon  her  credit,  evidence  that  it  was 
known,  or  understood,  by  the  plaintiff,  that  she 
intended  to  apply  the  money  to  the  benefit  of 
the  business  of  her  husband  is  immaterial,  and 

^  Cram  v.  Kelley,  7  Allen,  250. 

^  Major  V.  Holnies,  5  Reporter,  334 ;  124  Mass. 

3  Ibid. 


38  LAW    OF   MAERIED   WOMEN. 

she  is  liable.^  But  if  the  loan  is  made  upon  an 
agreement  that  it  shall  be  applied  to  the  use  or 
benefit  of  her  husband,  or  his  firm,  she  is  not 
liable  on  a  note  given  by  her  for  it  prior  to 
the  Statute  of  1874,  c.  184.^ 

CONTEACTS  betwee:n"  husba:nt)  and  wife. 

The  husband  and  wife  can  make  no  valid 
contracts  with  each  other.  This  is  the  doctrine 
of  the  common  law,  and  is  carefully  preserved 
in  all  the  statutes  regarding  married  women. 
It  is  based  on  public  policy,  and  is  for  the 
prevention  of  domestic  infelicity,  which  might 
result  from  suits  between  husband  and  wife. 
The  fact  that  the  parties  have  cohabited  as  hus- 
band and  wife  does  not  estop  the  plaintiff  from 
denying  the  validity  of  the  marriage.^ 

If  the  husband  borrows  money  of  his  wife, 
promising  to  repay  it,  he  cannot  be  forced  to  do 
so  by  an  action  on  the  contract,  for  that  has  no 
validity.  Nor  can  he  be  sued  in  tort  for  a  con- 
version of  the  money. 

^   Wildej^  Y.  I^ichie,  117  Mass.  382. 
^  Kourse  v.  Ilenshaw,  123  Mass.  96. 
«  Rohhins  v.  Potter,  98  Mass.  532. 
*  Bassett  v.  Bassett,  112  Mass.  99. 


CONTRACTUAL   POWERS.  39 

A  note  given  by  the  husband  to  his  wife,  or 
by  the  wife  to  her  husband,  is  absolutely  void  at 
laWj  even  in  the  hands  of  hona  fide  holders.^  But 
if  the  Avife  makes  a  note  payable  to  the  order 
of  her  husband,  and  he  indorses  it  to  a  third 
party,  he  may  possibly  be  estopped  to  deny  its 
validity  if  sued  as  indorser.^  It  has  been  held 
that  a  wife  may  be  a  conduit  to  pass  the  title  to 
her  husband's  note,  but  some  doubt  has  been 
thrown  on  the  case,  and  it  is  difficult  to  sup- 
port it  on  principle.^  By  the  indorsement  of  the 
husband  to  his  wife  no  title  vests  in  her,  but  it 
remains  in  him.^ 

If  a  note  made  by  either  husband  or  wife 
before  marriage  comes  into  the  possession  of 
the  other  after  marriage,  it  becomes  a  nullity, 
and  cannot  be  enforced  against  the  personal  rep- 
resentatives after  death,  nor  will  it  be  revived 
by  indorsement  to  a  third  party.^     But  if  the 

^  Ingham  v.  White,  4  Allen,  412;  Turner  v.  Xye,  7  Allen, 
176  ;  Chapman  v.  Kellogg,  102  Mass.  246  ;  Rohy  v.  Phelon^ 
118  Mass.  541. 

2  Roby  V.  Phelon,  118  Mass.  541. 

^  Slawson  V.  Loring,  5  Allen,  340.  See  Rohy  v.  Phelon^ 
supra. 

*  Gay  V.  Kingsley,  1 1  Allen,  345. 

^  Chapman  v.  Kellogg,  102  Mass.  246  j  Abbott  v.  Winches- 
ter, 105  Mass.  115. 


40  LAW    OF    MARRIED    WOMEX. 

beneficial  interest  only  is  vested  in  the  wife,  if 
the  legal  title  has  not  been  transferred  to  her, 
the  notes  may  be  proved  against  the  estate  of  the 
maker  in  insolvency.-^ 

How  far  a  contract  between  husband  and  wife 
will  be  upheld  in  equity  has  not  been  deter- 
mined in  this  commonwealth.  In  Turner  v. 
Nf/e,^  it  was  held,  on  a  bill  of  interpleader, 
that  an  administrator  could  not  pay  a  note 
given  by  his  intestate  to  his  wife,  where  there 
was  no  consideration  for  the  note,  the  money 
advanced  by  the  wife  not  having  been  her 
separate  property.  Nor  could  the  note  be 
considered  a  good  declaration  of  trust  to  hold 
the  husband  as  trustee  for  his  wife.  In  Phillips 
V.  Fryef  the  husband  executed  a  note  and 
mortgage  to  a  third  person  as  trustee  for  his 
wife,  there  being  no  consideration  for  the  note. 
It  was  held  that  his  administrator  could  not 
be  allowed  in  his  account  for  having  paid  the 
note,  on  the  ground  that  a  mere  meritorious 
consideration,  as  a  provision  for  a  wife  or  child, 
is  not  recognized  by  courts  of  equity  as  suffi- 
cient to  require  the  enforcement  of  an  executory 

^  Stearns  v.  Bullens,  8  Allen,  581. 

2  7  Allen,  176.  ^  j^  ^^^gj,^  35^ 


CONTRACTUAL   POWERS.  41 

contract.  It  has  been  held  in  the  District  Court 
of  the  United  States  for  the  District  of  Massa- 
chusetts, that  a  bankrupt's  wife,  who  had  ad- 
vanced her  husband  money  out  of  her  separate 
property,  which  was  intended  as  a  loan,  and  not 
as  a  gift,  could  prove  against  his  estate  for  the 
amount  advanced,  on  the  ground  that  courts  of 
equity  will  enforce  contracts  between  husband 
and  wife  entered  into  for  good  consideration.^ 

It  is  settled  in  England  that  courts  of  law 
and  equity  will  enforce  covenants  of  a  husband 
with  a  trustee  for  the  support  of  the  wife  in 
articles  of  separation  where  the  separation  ex- 
ists already,  or  is  to  be  immediate,  but  not  in 
articles  in  contemplation  of  future  separation, 
and  this  has  been  recognized  and  followed  in 
the  courts  of  many  of  the  states  of  this  coun- 
try.^ It  is  still  an  open  question  in  Massachu- 
setts. In  Page  v.  Trufant^  the  action  was  on  a 
bond,  given  to  the  father  of  the  wife  by  the 

^  Re  Blandin,  1  Lowell,  543  ;  Re  Richards,  April,  1878. 
See  also  Livingston  v.  Livingston,  2  Johns.  Ch.  537  j  Shepard 
V.  Shepard,  7  Johns.  Ch.  57  ;  Robinson  v.  Trofitter,  109  Mass. 
478. 

^  Homer,  arguendo  in  Alhee  v.  Wyman,  10  Gray,  222. 

2  2  Mass.  159. 
4 


42  LAW   OF   MARRIED    WOMEX. 

husband,  for  the  support  of  the  wife,  and  it 
was  held  the  action  lay.  In  Albee  v.  W^man,^ 
the  question  was  raised  but  not  passed  on, 
though  the  court  (Dewey,  J.)  remarked  that 
such  a  contract  was  "  obnoxious  certainly  to 
very  grave  objections,  arising  from  the  relations 
of  the  respective  parties,  and  the  impolicy  of 
furnishing  facilities  for  a  continued  separation 
of  those  whose  solemn  obligations  and  duties 
have  united  them  as  members  of  one  family." 
In  Blgelotu  v.  Hiibhardf  it  was  held  that  an 
agreement  of  separation  between  husband  and 
wife  and  a  trustee  for  the  wife,  by  which  it  was 
provided  that  the  husband  should  pay  to  the 
wife  a  certain  sum  yearly,  which  she  was  to 
receive  in  full  for  all  her  claims  on  him,  for  sup- 
port during  his  life,  and  "  all  her  claims  upon 
his  estate  after  his  death,"  could  be  waived  by 
the  wife,  and  her  dower  insisted  on  in  the  place 
of  it  after  his  death. 

SEPARATE   BUSINESS. 

A  married  woman  may  carry  on  any  trade  or 
business  on  her  sole  and  separate  account.'^    But 

1  10  Gray,  222.  3  ^^^^  g^,  c.  108,  §  3. 

2  97  Mass.  195. 


CONTRACTUAL    POWERS.  43 

she  must  file  in  the  clerk's  office  of  the  city  or 
town  where  she  does  or  proposes  to  do  business, 
a  certificate  setting  forth  the  name  of  her  hus- 
band, the  nature  of  the  business  proposed  to  be 
done,  and  the  place  where  it  is  to  be  done,  giv- 
ing the  street  and  number,  if  practicable  ;  and 
whenever  the  place  of  business  or  the  nature  of 
the  business  is  changed,  a  new  certificate  must 
be  filed  accordingly.^  If  the  woman  does  not 
file  this  certificate,  her  husband  may  file  one 
containing  a  similar  description  of  the  business.^ 
If  no  certificate  is  filed,  the  wife  will  not  be  al- 
lowed to  claim  any  property  employed  in  such 
business  against  creditors  of  her  husband,  and 
her  husband  will  be  liable  upon  all  contracts  law- 
fully made  in  the  prosecution  of  such  business, 
in  the  same  manner  and  to  the  same  extent  as 
if  made  by  himself.^  Even  if  exclusive  credit 
was  given  to  the  wife,  the  husband  is  liable  if 
the  certificate  has  not  been  filed.*  The  certifi- 
cate will  not  be  invalidated  by  not  containing  a 
recital  of  the  property  to  be  protected  by  it,  or 
by  an  incorrect  statement  in  regard  to  it.     Nor 

1  St.  1862,  c.  198,  §  1. 

'  Ibid.  §  2.  3  ibi(j^ 

*  F trail  V.  Rudolphsen,  106  Mass.  471. 


44  LAW    OF    MAEPJED    WOMEN. 

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


CONTRACTUAL    POWERS.  45 

such  a  business  that  a  certificate  must  be  filed 
to  protect  the  property  of  the  wife,  or  relieve 
the  husband  from  liability  for  her  contracts. 
But  keeping  a  colt  for  use,  or  buying  materials 
with  which  to  build  a  house,  is  not  a  separate 
business  under  the  statute.-^ 

The  nature  of  the  business  need  not  be  de- 
scribed with  great  particularity,  but  it  is  suffi- 
cient if  the  descrijDtion  is  such  as  to  make  it 
intelHgible  to  the  jury  what  the  business  is.  A 
certificate  of  "  the  general  business  of  saloon- 
keeper '*  is  not  in  law  insufficient.^  If  prop- 
erty is  contained  in  more  than  one  building, 
both  must  be  described  in  the  certificate,  as  only 
that  contained  in  the  building  named  is  pro- 
tected.^ The  statute  applies  to  personal  prop- 
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. 


46  LAW   OF   MARRIED   TVOMEN. 


PAETXERSHIP. 

A  married  woman  cannot  be  a  partner  in  the 
same  firm  with  her  husband/  nor  can  she  sus- 
tain an  action  against  partners  of  whom  her  hus- 
band is  one,  to  recover  for  services  performed 
for  them,  as  this  would  be  giving  effect  to  a 
contract  between  husband  and  wife.^  She  may 
belong  to  a  partnership,  and  be  bound  by  a 
promissory  note  given  in  the  partnership  name, 
if  her  husband  is  not  a  member  of  the  same 
firm,^  but  if  her  husband  is  a  partner,  she  can- 
not be  liable  on  a  note  in  the  name  of  the  firm.* 
And  she  will  not  be  estopped  to  deny  that  she 
is  a  member  of  the  firm  by  any  statements  she 
may  have  made  in  regard  to  it,^  unless  possibly 
if  a  wilful  intent  is  shown  to  induce  the  party 
to  act  on  the  faith  of  the  alleged  statement. 
Between  1863  and  1874  she  was  not  allowed  to 
be  a  co-partner  with  any  one.^ 

^  LordM.  Parker,  3  Allen,  127. 
^  Edwards  v.  Stevens,  3  Allen,  315. 
^  Plumer  v.  Lord,  5  Allen,  460. 
*  Plumer  v.  Lord,  7  Allen,  481. 
^  Plumer  v.  Lord,  9  Allen,  455. 
^  St.  1863,  c.  165;  St.  1874,  c.  184. 


CONTK ACTUAL   POWERS.  47 


MAKEIED     WOMEN    COMING    FROM    OTHER    STATES, 
OR   ABANDONED    BY   THEIR   HUSBANDS. 

It  is  provided  by  the  General  Statutes  ^  that 
married  women  coming  from  other  states,  or 
abandoned  by  their  husbands,  who  have  left  the 
state,  may  contract  and  sue  and  be  sued  as  if 
sole.  These  provisions  are  superseded  by  the 
Statute  of  1874,  c.  184,  which  gives  the  same 
powers  to  all  married  women. 

AGENCY. 

If  a  person  sells  goods  to  a  woman  who  is 
living  with  her  husband,  he  can  hold  the  hus- 
band liable  for  them,  either  by  proof  that  he, 
expressly  or  impliedly,  authorized  the  purchase, 
or  by  proof  that  he  refused  or  neglected  to  pro- 
vide a  suitable  support  for  the  wife,  and  that 
the  goods  sold  were  necessaries.^  In  the  latter 
case  the  burden  of  proof  is  upon  the  plaintiff 
to  show  that  the  husband  refused  or  neglected 
to  suj^ply  the  wife  with  what  was  necessary  for 


1  Gen.  St.  c.  108,  §§29,  31-35. 

2  Eay7ies  v.  Bennett,  114  Mass.  424. 


48  LAW    OF    MAERIED    WOMEX. 

decency  or  comfort  in  liis  condition  of  life,  and 
that  the  goods  sold  were  such  as  the  reason- 
able necessities  of  the  wife  required  her  to  have.-^ 
This  rests  on  the  ground  that  the  wife  has  an  im- 
plied authority,  derived  from  the  legal  duty  of 
the  husband  to  make  suitable  provision  for  her 
and  her  children,  to  act  as  his  agent  and  pro- 
cure such  supplies  as  might  be  necessary  on  his 
credit.^ 

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. 


CONTRACTUAL    POWERS.  49 

ture,  and  tlie  like,  are  necessaries,  is  for  the  jury. 
As  a  general  rule,  the  term  "  necessaries,"  ap- 
pHed  to  a  wife,  is  not  confined  to  articles  of 
food  or  clothing  required  to  sustain  life  or  pre- 
serve decency,  but  includes  such  articles  of  util- 
ity as  are  suitable  to  maintain  her  according  to 
the  estate  and  degree  of  her  husband.^ 

If  the  husband  unjustifiably  leaves  his  wife  ^ 
or  if  she  leaves  him  with  his  consent,  or  justifia- 
bly, as  because  of  cruelty  and  from  reasonable 
apprehension  for  her  safety,  as  long  as  she  con- 
tinues her  marital  purity  she  carries  the  credit 
of  her  husband  with  her  for  necessaries,  and 
he  to  whom  it  is  pledged  by  her  for  that  pur- 
pose may  avail  himself  of  his  liability.^  If  the 
wife  is  abandoned,  she  must  be  considered  as  the 
agent  of  the  husband  to  exercise  the  usual  and 
ordinary  care  over  the  affairs  of  the  household, 
and  to  contract  for  the  services  of  the  children 
for  short  periods,  and  to  apply  their  earnings  to 
her  and  their  support.    And  such  agency  author- 

^  Manly  v.  Scott,  2  Sm.  Lead.  Gas.  245. 
2  HallY.  Weir,  1  Allen,  261. 

^  Reynolds  v.  Sweetser,  15  Gray,  78  ;  Burlen  v.  Shannon^ 
U  Gray,  433;  Mayhew  v.  Thayer,  8  Gray,  172. 
5 


50  LAW    OF   MAEPJED    WOMEX. 

izes  tlie  wife  to  assign  the  earnings  of  the  chil- 
dren for  the  support  of  the  family.^ 

Adultery  on  the  part  of  the  wife  discharges 
the  husband,  but  where  a  husband  by  false  rep- 
resentations led  his  wife  to  believe  him  dead, 
and  she  married  again,  it  was  held  that  he  was 
estopped  to  set  up  her  bigamy  in  defence  to  an 
action  against  him  for  necessaries.^ 

The  husband,  when  the  wife  has  left  him 
because  of  cruelty,  is  liable  for  her  funeral  ex- 
penses.^ 

A  husband  was  not  by  the  common  law 
obliged  to  support  the  children  of  his  wife  by 
a  former  marriage,*  and  this  is  still  in  force  in 
Massachusetts,  there  being  no  statute  on  the 
subject.  But  though  the  husband  is  not  obliged 
to  take  the  children  into  his  family,  yet  if  he 
does  so,  he  stands  in  loco  jmrentis  in  respect  to 
them,  and  in  the  absence  of  an  express  contract, 
or  of  circumstances  showing  a  different  arrange- 
ment, he  has  a  right  to  their  services,  and  is 
liable  for  their  support  and  education.^ 

^  Camerliii  v.  Palmer  Co.,  10  Allen,  539. 

2  Cartwright  v.  Bate,  1  Allen,  5U. 

^  Cunningham  \.  JReardon,  98  Mass.  538. 

*  Worcester  v.  3farchant,  14  Pick.  510. 

^  Mulhern  v.  McDavitt,  16  Gray,  404. 


CONTRACTUAL   POWERS.  51 

The  wife  has  no  implied  authority  to  bind  her 
husband  in  other  ways  than  have  been  indi- 
cated. Thus,  in  the  absence  of  evidence  that 
he  authorized  her,  she  cannot  make  a  payment 
which  will  take  her  husband's  promissory  note 
out  of  the  Statute  of  Limitations.-^  And  her 
admissions  are  not  competent  in  evidence  to 
bind  him  as  to  a  right  of  way,  for  she  could  not 
make  a  valid  grant  of  the  way,  or  one  which 
would  estop  herself  or  her  heirs.  And  "  to  say 
that  one  may  by  acts  in  the  country,  by  admis- 
sion, by  concealment  or  silence,  in  effect  do 
what  could  not  be  done  by  deed,  would  be 
practically  to  dispense  with  all  the  limitations 
the  law  has  imposed  upon  the  capacity  of  in- 
fants or  married  women  to  alienate  their  es- 
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. 


52  LAW   OF   MARRIED   WOMEN. 

contracts  within  tlie  ordinary  scope  of  his  duty 
as  master  will  bind  her.  In  such  case  they  are 
not  partners,  but  joint  owners.^ 

^  Reiman  v.  Hamilton,  111  Mass.  245. 


CONYEYANCES    OF   REAL    ESTATE.  53 


CHAPTER    III. 

CONVEYANCES   0,F  REAL  ESTATE. 

Real  property  owned  by  a  married  woman, 
or  of  which  her  husband  was  seized  in  her  right, 
could  formerly,  by  the  common  law  of  Massa- 
chusetts, be  conveyed  by  their  joint  deed,-^  and 
that  is,  perhaps,  the  most  common  way  of  con- 
veying it  now,  and  one  which  is  expressly  author- 
ized by  the  General  Statutes.^  By  the  Statute 
of  1855,  c.  304,^  a  married  woman  was  allowed 
to  convey  her  real  estate  and  shares  in  corpora- 
tions by  her  own  deed,  with  her  husband's  con- 
sent in  writing,  or  with  the  consent  of  one  of 
the  judges  of  the  Supreme  Judicial  Court,  Supe- 
rior Court,  or  Probate  Court.  By  the  Statute  of 
1874,  c.  184,  she  was  allowed  to  convey  shares  in 
corporations  absolutely,  and  real  estate,  subject 
only  to  her  husband's  curtesy,  i.  e.  life  estate, 
by  her  own  deed  without  his  consent.  Under 
the  provision  in  the  General  Statutes,  allowing 

^  Durant  v.  Ritchie,  4  Mason,  45. 

2  Gen.  St.  c.  108,  §  2.  «  Gen.  St.  c.  108,  §  3. 


54  LAW    OF   MAKRIED    WOMEN. 

her  to  make  contracts  in  reference  to  her  sepa- 
rate projDerty,  she  could  make  a  valid  executory 
contract  for  the  purchase  of  real  estate.-^ 

Before  the  Statute  of  1874,  if  the  husband  did 
not  assent  in  writing  to  the  conveyance,  it  was 
void,  either  of  shares  in  corporations,^  or  of  real 
estate/  and  she  is  not  estopped  to  set  up  her 
title  either  at  law  *  or  in  equity,^  even  if  she 
has  fraudulently  executed  a  deed  bearing  date 
previous  to  her  marriage.^  A  deed  by  a  man 
and  his  wife  of  her  land,  made  when  he  was 
insane,  was  void."^  If  the  husband  signs  merely 
"  in  token  of  release  of  all  right  to  dower  and 
homestead,"  he  has  sufficiently  assented.^  He 
sufficiently  assents  to  a  mortgage  by  signing  as 
guarantor  her  note  for  the  debt,  secured  by  the 
mortgage,  or  by  signing  as  attesting  witness.® 

^  Faucett  v.  Currier,  109  Mass.  79. 

2  Merriam  v.  B.  C.  (6  F.  R.  B.,  117  Mass.  241. 

^  Lowell  \.  DanielSy  2  Gray,  161  ;  Warner  v.  Crouch,  14 
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. 


CONVEYANCES    OF    REAL    ESTATE.  55 

Where  the  assent  of  the  husband  was  oral,  the 
Court  of  Equity  refused  to  compel  the  wife,  after 
the  death  of  the  husband,  to  execute  a  new 
deed.^  But  the  wife  could  convey  by  deed 
under  a  power-of-sale  mortgage  without  her 
husband's  consent.^  Under  the  Statute  of  1874, 
the  husband's  assent  is  not  necessary  to  the 
validity  of  a  deed,  but  without  such  assent  it 
will  not  defeat  his  life  interest  after  the  death 
of  his  wife. 

A  husband  cannot  convey  his  own  real  estate 
so  as  to  defeat  his  wife's  right  to  dower,  unless 
she  expressly  releases  dower,  which  she  may  do 
in  the  original  conveyance,  or  by  a  subsequent 
release  under  seal.  If  she  merely  signs  the 
deed,  and  her  name  does  not  appear  anywhere 
in  the  body  of  it,  it  will  not  pass  any  interest  of 
hers,  even  her  dower.^  If  she  joins  in  the  dower 
clause,  only  signing  "  in  token  of  release  of 
dower  and  of  free  consent  hereto,"  it  carries  no 
interest  of  hers  except  her  dower.*  If  she  joins 
in  the  granting  part,  although  the  last  clause 

^  Townsley  v.  Chapin,  12  Allen,  476. 
^  Cranston  v.  Crane,  97  Mass.  459. 

*  MelvinY.  Proprietors,  dx.,  16  Pick.  137  ;  Wales  y.  Coffin, 
13  Allen,  213. 

*  Wales  V.  Coffi7i,  13  Allen,  213. 


56  LAW   OF   MAERIED   WOMEN. 

states  tliat  slie  signs  in  release  of  dower,  all  her 
interest  passes.-^  If  the  wife  releases  dower  in 
a  deed,  and  suffers  it  to  be  delivered  to  the 
grantee,  she  cannot  afterwards  avoid  it,  on  the 
ground  that  her  signature  was  obtained  by  fraud 
or  undue  influence  on  the  part  of  her  husband, 
without  showing  complicity  on  the  part  of  the 
grantee.^ 

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 
him.^ 

A  deed  from  a  third  person  to  a  woman  at 
the  request  of  her  husband,  who  pays  the  con- 
sideration, will  be  presumed  to  be  a  provision 
for  her,  and  will  not  create  a  resulting  trust  in 
his  favor  without  clear  proof  that  such  was  the 
intention.*    And  no  improvements  made  by  him 

^  Perkins  v.  Richardson,  11  Allen,  538. 
2   White  Y.  Graves,  107  Mass.  325. 
«  Gen.  St.  c.  108,  §§  19-22. 

*  Cairns  v.  Colhimi,  10-4  Mass.  274  ;  Eclgerly  v.  Edgerly, 
112  Mass.  175  j  Cormerais  v.  Wesselhoeft,  114  Mass.  550. 


CONYETAiS'CES    OF   EEAL    ESTATE.  57 

give  him  any  lien  or  claim  upon  the  lancl.^ 
Even  if  the  deed  be  taken  in  the  wife's  name, 
with  the  intent  to  defraud  creditors,  if  the  wife 
pays  any  part  of  the  purchase-money,  there  is 
no  resulting  trust,  and  his  creditors  cannot  take  it 
without  proof  that  she  was  a  party  to  the  fraud.^ 
Where  land  was  conveyed  to  a  man  by  a  deed 
which  recited  that  half  the  consideration  was 
paid  by  his  wife,  and  it  was  shown  that  it  was 
the  intention  to  have  it  conveyed  to  both,  but 
that  her  name  was  omitted  by  mistake,  there 
was  held  to  be  a  resulting  trust  in  her  favor  for 
half  the  estate.^ 

A  deed  or  devise  of  real  estate  to  husband 
and  wife  does  not  give  them  an  estate  as  ten- 
ants in  common,  or  as  simple  joint  tenants,  but 
by  entireties.  They  hold  it  together  during 
their  joint  lives,  and  the  husband  has  a  right  to 
all  the  rents  and  profits  at  common  law,  and 
probably  under  the  statutes  also,  and  the  sur- 
vivor takes  the  whole.  Neither  can  defeat  the 
other's  right  to  survivorship.*     If  both  husband 

^  Lihhy  v.  Chase,  117  Mass.  105. 
^  Snow  V.  Paine,  114  Mass.  520. 

'  Hay  ward  ^.  Cain,   110   Mass.  273;  Bancroft  v.  Curtis j 
108  Mass.  47. 
*  Wales  V.  Coffi^n,  13  Allen,  213. 


58  LAW   OF   MARRIED   WOMEN. 

and  wife  believe  that  they  have  each  an  undi- 
vided half,  and  the  husband  makes  a  deed  pur- 
porting to  convey  his  half,  in  which  the  wife 
releases  dower,  her  right  to  the  whole  estate 
after  his  death  remains  unaffected.^  But  if  land 
is  conveyed  to  a  man  and  woman  before  mar- 
riage, though  expressed  in  the  deed  to  be  in 
consideration  of  one  dollar,  and  a  marriage  to 
be  consummated  between  them,  they  take  as 
tenants  in  common,  or,  if  the  deed  clearly  in- 
tends so.  as  joint  tenants,  but  not  by  entireties.^ 

MORTGAGES. 

Before  the  Statute  of  1874,  which  enabled 
married  women  to  make  contracts  which  did  not 
concern  their  separate  property,  a  mortgage  of 
a  married  woman,  given  to  secure  payment  of 
a  note  made  hj  her,  without  any  consideration 
to  her,  could  not  be  enforced  at  law,  but  could 
in  equit}'.^  Before  that  it  was  held  that  if  a 
wife  made  a  mortgage  of  her  separate  estate  to 
secure  payment  of  her  husband's  debt,  whether 

1  Pierce  Y.  Ckace,  108  Mass.  254. 

*  Walsh  Y.  Toung,  110  Mass.  396. 

*  llehurn  v.  Wanier,  112  Mass.  271. 


CONVEYANCES    OF    REAL    ESTATE.  59 

she  joined  with  him  in  the  mortgage  note  or 
not,  the  mortgage  could  be  enforced  at  law,  for 
there  was  a  valid  note.^  The  court  reason  on 
the  supposition  that  the  mortgage  is  given  to 
secure  the  payment  of  the  note,  and  not  of  the 
debt,  and  that  it  is  not  sufficient  that  there  be  a 
valid  debt,  if  there  is  not  a  valid  note,^  but  that 
it  can  be  enforced  in  equity  as  made  an  express 
charge  on  her  separate  estate.^  Since  the  Act 
of  1874  a  married  woman's  mortgage  rests  on 
the  same  footing  as  that  of  a  man,  and  the  only 
question  is  whether  there  is  a  valid  subsisting 
debt  which  it  is  to  secure,  or  perhaps,  under 
Hehuni  v.  Warner,  a  valid  note. 

If  a  wife  holds  a  mortgage,  and  her  husband 
afterwards  comes  into  possession  of  the  equity, 
or  vice  versa^  the  mortgage  is  not  extinguished, 
but  cannot  be  enforced  during  the  coverture,  as 
this  would  necessitate  a  suit  between  husband 
and  wife,  which  the  law  does  not  allow.*  So,  if 
the  maker  of  a  valid  mortgage  marries  the  mort- 

1  Bartlett  v.  Bartlett,  4  Allen,  440. 

^  For  an  able  criticism  of  Hehurn  v.  Warner,  see  10  Am. 
Law  Rev.  371. 

«  See  WillardY.  Eastham,  15  Gray,  328. 
*  Tucker  v.  Fenno,  110  Mass.  311. 


60  LAW    OF   MARRIED    WOMEN. 

gagee,  the  mortgage  is  not  extinguished,  but  is 
suspended  dimng  the  coverture.-^ 

A  widow  who  has  joined  with  her  husband  in 
a  mortgage  of  her  estate,  to  secure  his  debt, 
which  she  has  paid  after  his  death,  may  prove 
the  claim  before  commissioners  of  insolvency 
upon  his  estate,  and  a  creditor  who  holds  the 
wife's  mortgage  in  such  case  can  prove  without 
giving  up  his  security.^ 

If  a  man,  at  the  time  of  taking  a  convej-ance 
of  real  estate,  mortgages  it  back  to  secure  the 
whole  or  any  part  of  the  purchase-money,  it  has 
always  been  held  that  he  had  no  such  seisin  as 
to  give  his  wife  a  right  to  dower  against  the 
mortgagee.  In  the  case  of  a  similar  mortgage 
by  the  wife,  it  was  held  that  her  seisin  was  suffi- 
cient to  give  her  husband  curtesy,^  but  by  the 
Statute  of  1874,  c.  184,  §  2,  he  has  none  against 
the  mortgagee.  It  seems  that  under  the  Statute 
of  1877,  c.  83,  he  will  have  a  life  interest  in  one 
half  of  such  land  against  the  mortgagee,  though 
this  was  probably  not  the  intention  of  the  act. 

^  BemisY.  Call,  10  Allen,  512  ;  Model,  dx.  Ass.  y.  Boston, 
114  Mass.  133. 

^  Savage  v.  Winchester,  15  Gray,  453. 

®   Weed  Sevdng  Machine  Co.  v.  Emerson,  115  Mass.  554. 


CRIMINAL   LIABILITY.  —  TORTS.  —  ARREST.      61 


CHAPTER    lY. 

CRIMIXAL   LIABILITY.  —  TORTS.  —  ARREST. 
CRIMINAL   LIABILITY. 

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. 
281. 

2  Com.  V.  Eagan,  103  Mass.  71. 


62  LAW   OF   MARRIED   WOMEN. 

of  the  husband,  and  the  wife  can  be  indicted 
alone,^  though  she  acts  by  his  order  or  direc- 
tion,- or  jointly  with  her  husband.^  But  if  the 
husband  was  near  enough  for  the  wife  to  act 
under  his  immediate  influence  and  control, 
though  not  in  the  same  room,  he  was  not  ab- 
sent within  the  meaning  of  the  law.* 

If  a  married  woman  illegally  keeps  intoxicat- 
ing liquors  for  sale,  her  husband  will  be  liable  if 
he  has  knowledge  of  the  fact  and  of  her  intent, 
if  the  circumstances  are  such  that  she  could  be 
considered  his  agent,  as  by  his  living  in  the 
same  house,  and  if  he  does  not  use  reasonable 
means  to  prevent  her,  although  he  has  no  in- 
terest in  the  stock  in  trade  or  the  profits,  and 
although  she  is  carrying  on  business  on  her  own 
account,  having  filed  the  certificate  required  by 
St.  1862,  c.  168.^ 

^  Com.  Y.  Murphy,  2  Gray,  510  ;  Com.  v.  Butler,  1  Allen,  4. 

^  Com.  V.  Feeney,  13  Allen,  560;  Com.  v.  Whalen,  16 
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. 


CRBIIXAL    LIABILITY. TORTS. ARREST.       63 

The  conviction  of  a  man  is  no  bar  to  the  con- 
viction of  his  \yife  for  a  like  offence  during  the 
same  time  in  the  same  tenement.^ 

A  wife  cannot  be  an  accessory  after  the  fact 
to  her  husband's  crime. ^ 

A  woman  is  liable  for  criminally  burning 
property,  although  it  belonged  to  her  husband.^ 

TORTS. 

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. 


64  LAW   OF   MARRIED    WOMEN. 

ARREST    ON    CIVIL   PROCESS. 

A  woman  cannot  be  arrested  on  civil  process 
except  for  a  tort.-^  If  a  female  judgment  debtor 
fails  to  satisfy  an  execution  for  more  than  twenty 
dollars,  she  can  be  cited  before  the  Probate 
Court,  and  compelled  to  answer  under  oath  as 
to  her  possessions.  If  any  goods  are  disclosed 
the  magistrate  can  order  her  to  deliver  them  up, 
and  in  case  of  refusal  commit  her  for  contempt. 
If  she  parts  with  any  property,  or  makes  any 
payment  of  money,  after  service  of  the  citation, 
with  intent  to  prevent  the  same  being  paid  to 
the  judgment  creditor,  the  court  may,  in  its  dis- 
cretion, commit  her  for  contempt.^ 

1  Gen.  St.  c.  124,  §  7.  ^  St.  1862,  c.  162. 


i 


DIVORCE.  65 


CHAPTER    Y. 

DIYOECE. 

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- 
tion.-^ 

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. 

7 


66  LAW   OF   MARRIED   WOMEiN". 

lived  together  as  husband  and  wife  in  this  state ; 
nor  for  any  cause  occurring  in  any  other  state 
or  country,  unless  before  such  cause  occurred 
the  parties  had  lived  together  as  husband  and 
wife  in  this  state,  and  one  of  them  lived  in  this 
state  when  the  cause  occurred.^ 

It  is  sufficient  under  this  section  if  the  parties 
have  both  had  their  actual  domicile  in  this  state, 
although  there  has  been  no  matrimonial  cohabi- 
tation or  intercourse.^  The  words  "  to  live  " 
and  "  to  reside "  are  synonymous,  and  the  re- 
quirement of  living  in  this  state  when  the 
cause  of  divorce  occurred  is  satisfied  if  the  legal 
domicile  of  the  party  at  that  time  remained 
within  its  jurisdiction.  A  domicile  once  existing 
cannot  be  lost  by  mere  abandonment,  but  con- 
tinues until  a  new  one  is  gained.  If  the  domi- 
cile continues,  the  fact  that  the  cause  occurred 
out  of  the  state  is  of  no  consequence.^  The 
wife  cannot  acquire  a  domicile  different  from 
that  of  her  husband ;  and  although  they  live 
apart  she  still  follows  his  domicile.  The  only 
exception  to  this  rule  is  that  an  innocent  wife 

1  Gen.  St.  c.  107,  §  12. 

2  Eaton  Y.  Eato7i,  122  Mass.  276. 
^  Shaw  V.  Shaw,  98  Mass.  158. 


DIVORCE.  67 

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. 


68  LAW    OF   MARRIED   WOMEN. 

2d.   Impotency  of  either  party .^ 

3cl.  When  either  party  has  separated  from 
the  other  without  his  or  her  consent,  and  united 
with  a  religious  sect  or  society  that  professes  to 
beheve  the  relation  of  husband  and  wife  void  or 
unlawful,  and  has  continued  united  with  such 
sect  or  society  three  years,  refusing  during  that 
time  to  cohabit  with  the  other  party,  who  has 
not  united  with  such  sect  or  society.^ 

4th.  When  either  party  is  sentenced  to  con- 
finement to  hard  labor  in  the  state  prison,  or 
in  any  jail  or  house  of  correction,  for  the  term  of 
life,  or  for  five  years  or  more  ;  and  no  pardon 
granted,  after  a  divorce  for  that  cause,  to  the 
party  so  sentenced,  will  restore  such  party  to 
his  or  her  conjugal  rights.^ 

5th.  Extreme  cruelty.*  The  cruelty  must  ap- 
pear to  be  such  as  to  cause  injury  to  life,  limb, 
or  health,  or  create  a  danger  of  such  injury,  or 
a  reasonable  apprehension  of  such  danger.^ 

1  Gen.  St.  c.  107,  §  6. 
^  Ibid. 
8  Ibid. 

*  St.  1870,  c.  404,  §  2. 

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


DIYORCE.  69 

6th.   Cruel  and  abusive  treatment.^ 

7tli.  Gross  and  confirmed  habits  of  intoxica- 
tion.^ 

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. 


70  LAW   OF   MARRIED   WOMEN. 

neglect  with  his  permission  for  her  to  depart 
from  his  house  and  society.^  If  she  is  justified 
by  his  ill-treatment  or  misconduct  in  leaving  the 
house,  he  cannot  have  a  divorce  for  the  deser- 
tion.2 

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. 


DIVORCE.  71 

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.^ 

RECRIMINATION. 

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 
Recrimination.^ 

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 


72  LAW   OF   MAEEIED   WOZ^EX. 


CONDONATION. 

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 
cruelty.^ 

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. 


DIVORCE.  73 

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. 
8 


74  LAW   OF   MARRIED   WOMEN. 

Forgiveness  of  one  act  is  not  forgiveness  of 
other  acts,  of  which  the  forgiving  party  had 
neither  knowledge  nor  a  reasonable  ground  of 
belief;  nor  does  readiness  to  forgive  a  single 
offence  imply  willingness  to  forgive  a  life  of 
profligacy.  Whether  the  condonation  is  in  any 
given  case  to  be  confined  to  one  or  more  acts, 
or  is  to  include  all  past  offences,  is  a  question  to 
be  decided  by  the  language  and  conduct  of  the 
parties,  in  view  of  the  facts  then  known  or  rea- 
sonably suspected  by  the  forgiving  party .^ 

K  a  husband,  believing  upon  reasonable 
grounds  the  guilt  of  his  wife,  still  continues  to 
cohabit  with  her,  he  will  be  presumed  to  have 
remitted  the  crime,  and  will  not  be  allowed  a 
decree  of  divorce  for  that  cause.^ 

DECREE. 

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. 


DIVORCE.  75 

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. 


76  LAW   OF   MARRIED   WOMEN. 

FOREIGN   DIVORCES. 

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. 


1 


DIYOKCE.  77 


EFFECT   OF   AN   ABSOLUTE   DIVORCE. 

Persons  divorced  will  be  liable  to  all  the  pen- 
alties against  adultery,  if  they  cohabit  as  hus- 
band and  wife,  or  live  together  in  the  same 
house.-^ 

The  innocent  party  may  marry  again,  as  if 
the  other  party  were  dead.^  The  guilty  party 
cannot  marry  again  without  leave  granted  by 
the  court,^  and  if  he  marries  without  such  leave 
he  will  be  adjudged  guilty  of  polygamy.*  When 
a  divorce  was  obtained  on  the  ground  of  adul- 
tery, it  was  held  that  proof  that  the  guilty 
party  since  the  divorce  had  maintained  a  good 
character,  and  was  a  fit  person  to  marry,  was 
sufficient  to  justify  the  court  in  allowing  her 
to  marry  again.^  But  if  one,  with  notice  and 
opportmiity  to  meet  the  charge,  allows  a  decree 
of  divorce  to  be  obtained  against  him  upon  the 
ground  of  any  condition  of  mind  or  body,  or 
religious  association,  which  by  law  renders  him 

1  Gen.  St.  c.  107,  §  24. 

2  Ibid.  §  25. 

-  »  St.  1873,  c.  371,  §  4 ;  Gen.  St.  c.  107,  §  26. 
*  Gen.  St.  c.  107,  §  25. 
5  Cochrane,  Petr.,  10  Allen,  276. 


78  LAW   OF   MARRIED   WOMEN. 

unfit  for  the  marriage  state,  he  will  not  be 
allowed  by  the  court  to  marry  again  without 
proof  that  he  has  changed  his  condition  in 
this  respect.^'''.  The  belief  of  the  guilty  party 
that  he  has  a  right  to  marry  again  in  the  life- 
time of  the  other  party  without  leave  of  court 
does  not  render  such  marriage  valid,^  and  such 
belief  would  be  no  defence  to  an  indictment 
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 
court.* 

ALLOWANCE  PEXDENTE  LITE. 

In  all  cases  of  libel  for  divorce,  the  court  may 
require  the  husband  to  pay  into  court,  for  the 
use  of  the  wife  during  the  pendency  of  the 
libel,  such  sum  of  money  as  may  enable  her  to 
maintain  or  defend  the  libel,  tilthough  exceed- 

1  CMld^s  Case,  109  Mass.  406. 

2  White  V.  White,  105  Mass.  325. 

^  Ibid.  ',  Com.  v.  Mash,  7  Met.  472. 
*  Bullock  V.  Bullod',  122  Mass.  3. 


DIVORCE.  79 

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.^ 


ALIMONY. 

When  a  divorce  is  granted  for  any  cause,  the 
court  granting  it  may  decree  alimony  to  the 
wife,  or  any  part  of  her  estate  to  her  husband 
in  the  nature  of  alimony.^  Alimony  may  be 
decreed  to  be  paid  in  one  gross  sum,  or  in  an- 
nual payments,  and  in  determining  the  amount 
the  court  will,  of  course,  consider  the  pecuniary 
condition  of  the  husband ;  the  value  of  his 
estate  and  the  extent  of  his  liabilities.*  It 
may  be  awarded  the  wife  whether  the  decree 
of  divorce  is  in  her  favor  or  not.^ 

The  court  has  full  power  in  regard  to  the 

1  Gen.  St.  c.  107,  §  22. 
^  Baldwin  v.  Baldivin,  6  Gray,  341. 
«  St.  1873,  c.  371,  §  7.     See  also  Gen.  St.  c.  107,  §  43  to 
53  incl.  ;  St.  1877,  c.  178,  §  5. 

^  Burrows  v.  Purple^  107  Mass.  428. 
^  Graves  v.  Graves,  108  Mass.  314. 


80  LAW   OF   MAKEIED   WOMEN. 

matter  of  alimony,  and  may  in  its  discretion 
award  it  or  not.  If  the  question  is  reopened  by 
a  motion  to  change  the  form  of  the  allowance, 
the  court  will  consider  any  alteration  in  the  cir- 
cumstances of  the  parties,  and  revise  the  decree 
accordingly.-^ 

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. 


DIVOECE.  81 

may  be  enforced  by  the  court  in  the  same  man- 
ner as  decrees  are  enforced  in  equity.^ 

The  conveyance  and  transfer  of  his  property 
by  the  husband,  in  anticipation  of  his  wife's  fil- 
ing a  libel  against  him  for  a  divorce,  and  with 
intent  to  prevent  the  execution  of  any  decree 
for  alimony  w^hich  may  be  obtained,  are  a  fraud 
upon  her  for  which  she  may  have  redress.^  In 
a  recent  case  where  such  conveyance  and  trans- 
fer were  made  to  the  son-in-law  and  daughter  of 
the  respondent,  the  court  held  that  these  facts 
were  competent  evidence  upon  the  question 
whether  the  husband  had  in  his  possession  or 
control  the  means  of  obeying  the  order  of  the 
court,  and  was  consequently  in  contempt  for  dis- 
obedience of  that  order.^ 


LEGITIMACY   OF   ISSUE. 

A  divorce  on  account  of  adultery  committed 
by  the  wife  will  not  affect  the  legitimacy  of  the 
issue  of  the  marriage.* 

1  Gen.  St.  c.  107,  §§45,46. 
^  Burr 0X08  v.  Purple,  107  Mass.  428. 
"  Stuart  V.  Stuart,  123  Mass.  370. 
*  Gen.  St.  c.  107,  §  27. 
9 


82  LAW   OF   MARRIED   WOMEN. 

PROVISIONS    CONCERNING   PROPERTY. 

When  a  divorce  is  decreed  on  account  of 
adultery  committed  by  the  husband,  or  because 
of  his  sentence  to  confinement  at  hard  labor, 
the  wife  will  be  entitled  to  dower  in  his  lands  in 
the  same  manner  as  if  he  were  dead,^  and  upon 
a  decree  of  divorce  for  any  cause,  except  adul- 
tery committed  by  the  wife,  the  wife  will  be 
entitled  to  the  immediate  possession  of  all  her 
real  estate  in  like  manner  as  if  her  husband 
were  dead ;  and  the  court  may  make  a  decree 
restoring  to  the  wife  the  whole  or  any  part  of 
the  personal  estate  that  has  come  to  the  hus- 
band by  reason  of  the  marriage,  or  awarding  to 
her  the  value  thereof  in  money  to  be  paid  by 
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. 


DIVORCE.  83 

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 

above.^ 

1  St.  1877,  c.  178,  §  5. 


84  LAW   OF   MARRIED   WOMEN. 


CHAPTER   VI. 

CUSTODY   OF  MINOR   CHILDREN. 

The  father  and  mother  are  the  natural  guar- 
dians of  their  children  so  far  as  custody  goes, 
and  as  long  as  they  are  fit  and  competent  per- 
sons they  are  entitled  to  said  custody. 

The  Probate  Court  may  appoint  a  guardian  of 
a  minor  under  fourteen  years  of  age,  or  if  he  is 
over  that  age  he  may  nominate  his  own  guar- 
dian, and  the  Probate  Court  will  appoint  ac- 
cordingly, if  he  be  such  a  person  as  the  court 
approves.^ 

Such  a  guardian  will  have  the  custody  and 
tuition  of  his  ward,  and  the  care  and  manage- 
ment of  his  estate  until  the  minor  arrives  at 
the  age  of  twenty-one  y^diV^,  provided  the  father 
and  mother  are  both  dead,  or  are  incompetent 
to  transact  their  own  business  ;  but  if  either  the 
father  or  mother,  or  both,  are  living,  and  are 
competent  persons,  they  will  be  entitled  to  the 
custody  and  tuition  of  the  minor.^ 

1  Gen.  St.  c.  109,  §  2.  ^  q^^^  g^;.  c.  109,  §  4. 


CUSTODY   OF   MINOR   CHILDREK.  85 

The  father  may  by  will  appoint  guardians  for 
his  children,  and  such  guardians  will  have  the 
same  powers  and  perform  the  same  duties  with 
regard  to  the  person  and  estate  of  the  ward  as  a 
guardian  appointed  by  the  Probate  Court.^ 

It  will  thus  be  seen  that  where  either  of  the 
parents  is  living,  and  is  a  competent  person,  the 
duty  and  power  of  the  guardian  is  limited  to 
the  care  and  custody  of  the  estate  of  his  ward ; 
but  if  the  parents,  or  surviving  parent,  are  found 
to  be  unfit,  a  guardian  may  be  appointed  who 
shall  have  the  custody  of  the  child .^ 

In  general,  the  father  is  by  law  clearly  en- 
titled to  the  custody  of  his  child,  and  unless 
clearly  unfit,  the  court  will  feel  bound  to  restore 
the  custody  to  him.^  So,  where  there  had  been  a 
separation  between  a  husband  and  wife  without 
justifiable  cause,  the  court  ordered  the  child  to 
be  taken  from  the  custody  of  the  mother  and 
restored  to  the  father.*  A  writ  of  habeas  corpus 
may  be  properly  issued  against  a  wife  to  obtain 
the  custody  of  a  child  on  application  of  the  hus- 
band.^ 

Where  a  husband  has  deserted  or  fails  to  fur- 

1  Gen.  St.  c.  109,  §  5.  *  Ibid. 

2  St.  1873,  c.  367.  ^  jbid. 
*  Com.  V.  Briggs,  16  Pick.  203. 


86  LAW   OF   MAREIED   WOMEN. 

nish  suitable  support  for  his  wife,  or  where  the 
wife  for  a  justifiable  cause  is  actually  living 
apart  from  her  husband,  the  court  will,  upon 
application  of  either  the  husband  or  wife,  make 
such  order  as  it  deems  expedient  concerning 
the  care,  custody,  and  maintenance  of  the  minor 
children.-^ 

In  the  case  of  a  child  of  tender  years,  the 
good  of  the  child  is  to  be  regarded  as  the  pre- 
dominant consideration.  There  may  be  cases  in 
which  the  court  would  not  interfere  in  favor  of 
a  father,  to  take  the  child  from  any  safe  custody 
to  deliver  to  him.^  And  if  the  welfare  of  the 
child  clearly  requires  it  should  remain  in  the 
care  of  the  mother,  the  court  will  so  order.^ 

During  the  pendency  of  a  libel  for  divorce, 
the  court  will,  upon  application  of  either  party, 
make  such  order  concerning  the  care  and  cus- 
tody of  the  minor  children  of  the  parties  as 
shall  be  deemed  expedient,  and  for  the  benefit 
of  the  children.* 

^  Gen.  St.  c.  107,  §  36;  St.  1874,  c.  205.  The  statute  of 
1874  is  constitutional,  although  there  is  no  provision  in  it  for 
a  trial  by  jury.     Bigeloiv  v.  Bigelow^  120  Mass.  320. 

2  Com.  V.  Briggs,  16  Pick.  203. 

^  Com.  V.  Maxwell,  6  Law  Rep.  214. 

*  Gen.  St.  c.  107,  §  32. 


CUSTODY   OF   MINOR   CHILDREN.  87 

"When  a  divorce  is  decreed  for  any  cause,  the 
court  granting  it  may  decree  alimony  to  the 
wife,  and  the  court  has  full  power  to  make  all 
such  decrees  in  relation  to  the  care,  custody,  and 
support  of  the  minor  child  or  children  of  the 
parties,  during  their  minority,  as  to  the  court 
shall  seem  fit  and  proper,  and  for  the  best  inter- 
est of  such  child  or  children.^ 

After  a  decree  of  nullity  or  divorce  the  court 
may  make  such  further  decree  as  it  deems  expe- 
dient concerning  the  care,  custody,  and  mainte- 
nance of  the  minor  children  of  the  parties,  and 
determine  with  which  of  the  parents  the  chil- 
dren or  any  of  them  shall  remain,  and  may, 
from  time  to  time,  on  the  petition  of  either 
of  the  parents,  revise  and  alter  such  decree,  and 
make  a  new  decree,  as  the  circumstances  of  the 
parents  and  the  benefit  of  the  children  re- 
quire.^ 

In  making  an  order  or  decree  relative  to  the 
custody  of  children,  pending  a  controversy  be- 
tween their  parents,  or  in  regard  to  their  final 
possession,  the  rights  of  the  parents  in  the  ab- 
sence of  misconduct  shall  be  held  to  be  equal, 

1  St.  1873,  c.  371,  §  7.  ^  Gen.  St.  c.  107,  §  33. 


88  LAW   OF   MARRIED   WOMEN. 

and  the  happiness  and  welfare  of  the  children 
shall  determine  the  custody  or  possession.'^ 

Where  the  court  has  jurisdiction  over  the  cus- 
tody and  maintenance  of  infant  children,  if  the 
children  are  natives  of  this  state,  or  have  re- 
sided five  years  within  its  hmits,  they  cannot 
be  removed  out  of  the  jurisdiction  against  their 
own  consent,  if  of  suitable  age  to  signify  the 
same,  nor  while  under  that  age  without  the  con- 
sent of  both  parents,  unless  the  court  upon 
cause  shown  otherwise  orders.^ 

If  a  divorce  is  decreed  in  any  other  state  or 
country,  if  minor  children  of  the  marriage  are 
inhabitants  of  this  state,  the  court,  upon  peti- 
tion of  either  parent,  or  of  a  next  friend  in 
behalf  of  the  children,  has  the  same  power  to 
make  decrees  as  to  their  custody  and  mainte- 
nance as  if  the  divorce  had  been  decreed  in 
this  state  .^ 

^  Gen.  St.  c.  107,  §  37.       I  Ibid.  §  35.       ^  Ibid.  §  34. 


HOMESTEADS   AND   SETTLEMENTS.  89 


CHAPTEE  VII. 

HOMESTEADS  AND  SETTLEMENTS. 
HOMESTEADS. 

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. 

10 


90  LAW   OF   MARRIED   TVOMEX. 

The  acquisition  of  a  new  estate  of  homestead 
will  operate  to  defeat  any  estate  or  right  of 
homestead  previously  existing.^ 

No  property  by  virtue  of  these  provisions  is 
exempt  from  levy  for  taxes,  or  for  a  debt  con- 
tracted for  the  purchase  thereof,  or  for  a  debt  con- 
tracted before  the  deed  or  writing  above  referred 
to  is  recorded,  nor  are  buildings  on  land  not 
owned  by  the  householder  exempt  from  sale  or 
levy  for  the  ground-rent  of  land  on  which  they 
stand ;  and  such  right  of  homestead  will  not 
defeat  any  mortgage  or  other  encumbrance  pre- 
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. 


HOMESTEADS   AND   SETTLEMENTS.  91 

house  owned  by  her  husband  at  the  time  of  his 
death  as  a  homestead,  for  the  pm'pose  of  storing 
furniture,  is  a  sufficient  continuation  of  occupa- 
tion by  the  widow  to  entitle  her  to  the  benefit  of 
the  homestead  exemption.-^  A  right  of  home- 
stead can  only  be  defeated  by  a  deed  acknowl- 
edged and  recorded,  in  which  the  wife  of  the 
owner,  if  he  has  any,  joins  for  the  purpose  of 
releasing  the  same.^  If  she  only  releases  dower 
in  the  deed,  she  does  not  lose  her  homestead.^ 
An  estate  of  homestead  cannot  be  affected  by 
the  will  of  the  householder.* 

SETTLEMENT. 

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 
place. 

1  Brettun  v.  Fox,  100  Mass.  234. 

2  Gen.  St.  c.  104,  §  8. 

*  Mercier  v.  Chase,  11  Allen,  194. 

*  BreUun  v.  Fox,  100  Mass.  234. 


92  LAW   OF   MAEEIED   WOMEN. 

"  A  married  woman  shall  follow  and  have  the 
settlement  of  her  husband,  if  he  has  any  within 
the  state,  otherwise  her  own  at  the  time  of  the 
marriage,  if  she  then  had  any,  shall  not  be  lost 
or  suspended  by  the  marriage. 

^^  Legitimate  children  shall  follow  and  have 
the  settlement  of  their  father,  if  he  has  any 
within  the  state,  until  they  gain  a  settlement  of 
their  own  ;  but  if  he  has  none,  they  shall  in  like 
manner  follow  the  settlement  of  their  mother,  if 
she  has  any. 

"Illegitimate  children  shall  follow  and  have 
the  settlement  of  their  mother  at  the  time  of 
their  birth,  if  she  then  has  any  within  the  state  ; 
but  neither  legitimate  nor  illegitimate  children 
shall  gain  a  settlement  in  the  place  where  they 
may  be  born,  if  neither  of  their  parents  then  has 
a  settlement  therein." 


WILLS.  93 


CHAPTER   VIII. 

WILLS. 

A  MARRIED  woman  may  make  a  will  of  her 
real  and  separate  personal  estate  in  the  same 
manner  as  if  she  were  sole,  but  she  cannot  by 
will  deprive  her  husband  of  more  than  half  her 
personal  property,  or  of  his  right  to  curtesy  in 
her  real  estate,  without  his  consent  in  writing.-^ 

If  a  husband  assents  in  writing  to  a  will  exe- 
cuted by  his  wife,  unless  the  assent  is  qualified 
or  limited,  the  will  is  vahd  and  effectual  to  pass 
all  her  real  as  well  as  personal  estate  to  the  ex- 
tent to  which  the  devises  and  bequests  therein 
contained  dispose  of  the  property.^  Such  con- 
sent to  be  effectual  must  be  given  during  the 
lifetime  of  the  wife.^ 

A  married  woman  may  devise  the  accumulated 
income  as  well  as  the  principal  of  trust  funds 
which  she  is  entitled  to  receive  under  a  deed  or 

1  Gen.  St.  c.  108,  §§  9,  10. 

2  Silshy  V.  Bulloch,  10  Allen,  94. 
«  Smith  V.  Sweet,  1  Gush.  470. 


94  LAW   OF   MAERIED   WOMEN. 

will,  or  which  have  been  by  her  received  and 
invested.^ 

A  married  woman  may,  without  her  husband's 
consent,  make  a  valid  disposition  of  specific  arti- 
cles of  her  separate  personal  property  by  a  dona- 
tio causa  mortis  to  the  extent  of  depriving  him  of 
more  than  half  of  her  personalty ;  such  disposi- 
tion not  being  considered  as  testamentary,  but 
as  a  gift.^ 

As  a  will  takes  effect  from  the  death  of  the 
testator,  its  validity  will  depend  on  the  statutes 
in  force  at  the  time  of  the  death,  and  not  at  the 
time  it  was  made.^ 


1  St.  1864,  c.  198  and  c.  276. 

^  Marshall  v.  Berry,  13  Allen,  43. 

*  Burroughs  v.  Nutting^  105  Mass.  228. 


PROVISIONS   IN   CASE   OF   INTESTACY.         95 


CHAPTEK   IX. 

PROVISIONS  IN  CASE   OF  INTESTACY. 

DISTRIBUTION   OF   THE   PROPERTY   OF   A  MARRIED 
WOMAN. 

If  a  married  woman  dies  intestate  her  prop- 
erty will  be  distributed  as  follows  :  — 

If  the  husband  survives  her,  he  will  be  enti- 
tled (if  a  child  has  been  born  alive  to  them)  to 
curtesy,  that  is,  a  life  interest  in  all  her  real 
estate,  or  if  no  child  has  been  born  alive,  to  a 
life  interest  in  one  half  her  real  estate,  or,  if  she 
leaves  no  kindred,  to  the  whole  of  it,  and  to  the 
whole  of  her  personal  property.^ 

The  birth  of  living  children  after  the  convey- 
ance by  a  married  woman  of  land  held  by  her 
.to  her  sole  and  separate  use  will  entitle  her 
husband  to  an  estate  of  curtesy  therein.^ 

If  her  husband  does  not  survive  her,  her 
property,  both  real  and  personal,  will  descend 

^  Gen.  St.  c.  94,  §  16  ;  St.  1877,  c.  83. 
^  Comer  v.  Chamberlain,  6  Allen,  166. 


96  LAW   OF   MARRIED   WOMEN. 

in  equal  shares  to  her  children,  and  the  issue  of 
any  deceased  child  by  right  of  representation. 
If  there  is  no  surviving  child,  then  to  all  her 
other  lineal  descendants.  K  she  leaves  no  issue, 
then  in  equal  shares  to  her  father  and  mother. 
If  she  leaves  no  issue  nor  mother,  then  to  her 
father.  If  she  leaves  no  issue  nor  father,  then 
to  her  mother.  If  she  leaves  no  issue,  and  no 
father  nor  mother,  then  to  her  brothers  and  sis- 
ters, and  to  the  issue  of  any  deceased  brother 
or  sister  by  right  of  representation.  If  she 
leaves  no  issue,  and  no  father,  mother,  brother, 
nor  sister,  then  to  her  next  of  kin  in  equal  de- 
gree, those  claiming  through  the  nearest  ances- 
tor being  preferred.  If  she  leaves  no  kindred, 
then  her  estate  will  escheat  to  the  common- 
wealth.^ 


DISTRIBUTION   OF   PROPERTY   OF   HUSBAND. 

Upon  the  death  of  the  husband,  if  he  dies  in- 
testate, the  widow  is  entitled  to  her  dower,  that 
is,  to  a  life  interest  in  one  third  of  all  the  real 
estate  of  which  her  husband  was  seized  at  any 
time  during  coverture,  and  to  which  she  has  not 

1  Gen.  St.  c.  94,  §  16  j  St.  1876,  c.  220. 


PROVISIONS    IN    CASE    OF   INTESTACY.         97 

released  her  rights.^  But  she  can  have  no  dower 
in  wild  lands?  If  the  husband  leaves  no  issue, 
she  is  entitled  to  a  life  interest  in  one  half  of 
the  real  estate  of  which  he  died  seized,  or  to  her 
dower,  as  she  may  elect.^ 

Of  the  personal  estate  she  is  entitled,  if  her 
husband  leaves  issue,  to  one  third,  or  if  he  leaves 
no  issue,  to  the  whole  to  the  amount  of  $  5,000, 
and  to  one  half  the  excess  over  $10,000.* 

She  is  also  entitled  to  her  articles  of  apparel 
and  ornament,  to  the  use  of  her  husband's  house 
and  the  furniture  therein  for  forty  days  after 
his  death,  and  also  to  such  parts  of  the  personal 
estate  as  the  Probate  Court  may  allow  for  ne- 
cessaries, and  for  provisions  for  her  reasonable 
sustenance  for  forty  days  after  her  husband's 
death.^  And  in  Williams  v.  Williams^  Thomas,  J., 
says  ^Hhe  power  (i.  e.  of  the  Probate  Court)  is 
not  limited  to  intestate  estates.  It  is  given  in 
all  cases,  whether  there  is  a  will  or  not,  whether 


^  Gen.  St.  c.   90,  §  1. 

2  Ibid.  §  12. 

^  Ibid.  §§  15,  16.     See  Brigham  v.  Maynard,  9  Gray,  81, 

4  Gen.  St.  c.  94,  §§  16,  17. 

5  Gen.  St.  c.  94,  §  16 ;  c.  90,  §  18 ;  c.  96,  §§  4,  5. 
«  5  Gray,  24. 

13 


98  LAW    OF    MARRIED    WOMEN. 

the  widow  waives  the  provisions  of  the  will  or 
not." 

WAITER    OF    PROYISIOXS    OF    HUSBAND'S    WILL. 

A  widow  of  a  testator  may,  if  she  so  elect, 
within  six  months  after  the  probate  of  her  hus- 
band's will,  file  in  the  Probate  Court  a  waiver 
of  its  provisions,  and  in  that  case  will  be  enti- 
tled to  such  portion  of  his  real  and  personal  es- 
tate as  she  would  have  been  entitled  to  if  her 
husband  had  died  intestate ;  except  that  if  the 
share  of  the  personal  estate  to  which  she  would 
thus  become  entitled  shall  exceed  the  sum  of 
$  10,000,  she  will  take  only  the  income,  during 
her  life,  of  such  excess.^ 

But  it  seems  that  in  order  to  be  entitled  to 
claim  an  estate  of  homestead  (see  Homestead), 
it  is  not  necessary  for  the  widow  to  waive  the 
provisions  made  for  her  in  her  husband's  will.^ 

A  widow  will  be  entitled  to  dower  in  addition 
to  the  provisions  of  the  will,  if  it  plainly  appears 
by  the  will  that  such  was  the  intention  of  the 
testator.^ 

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. 

I 


OTHER   RIGHTS    AXD    LIABILITIES.  99 


CHAPTER    X. 

OTHER   RIGHTS   AXD   LIABILITIES. 
INSURANCE   POLICIES. 

A  POLICY  of  insurance  on  the  life  of  any  per- 
son, expressed  to  be  for  the  benefit  of  any  mar- 
ried woman,  whether  procured  by  herself,  her 
husband,  or  any  other  person,  or  a  policy  of  in- 
surance on  the  life  of  any  person  duly  assigned, 
transferred,  or  made  payable  to  any  married 
woman,  or  to  any  person  in  trust  for  her  or  for 
her  benefit,  whether  such  transfer  be  made  by 
her  husband  or  other  person,  will  inure  to  her 
separate  use  and  benefit  and  that  of  her  chil- 
dren, independently  of  her  husband  and  his 
creditors,  or  of  the  person  effecting  or  transfer- 
ring the  same,  or  his  creditors.  If,  however, 
the  premiums  on  such  policies  are  paid  by  any 
person  with  intent  to  defraud  his  creditors,  an 
amount  equal  to  the  premiums  so  paid  will 
inure  to  the  benefit  of  his  creditors.^ 

1  Gen.  St.  c.  58,  §  62  ;  St.  1864,  c.  197. 


100  LAW   OF   MAERIED   WOMEN". 

This  provision  proceeds  upon  the  theory  that 
the  interest  of  a  man's  wife  and  children  in  his 
life,  and  his  duty  to  make  reasonable  provision 
for  their  support,  are  not  wholly  subordinate  to 
the  claims  of  his  creditors;  and  that  he  may 
make  an  irrevocable  settlement  of  a  policy  of 
insurance  on  his  life  for  the  benefit  of  his  family. 
The  security  is  declared  by  the  statute  to  be 
independent  not  only  of  creditors,  but  of  the 
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   EIGHTS    AND    LIABILITIES.  101 

Other  trustee  is  appointed,  for  the  benefit  of  the 
children.-^ 

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. 


MAKRIED   WOMAN   MAY   BE    EXECUTRIX,  &C. 

A  married  woman  may  be  an  executrix,  ad- 
ministratrix, guardian,  or  trustee,  and  bind  her- 
self and  the  estate  she  represents,  without  her 
husband  joining  in  any  conveyance  or  instru- 
ment whatever,  and  be  bound  in  the  same  man- 
ner and  with  the  same  efiect  in  all  respects  as  if 
she  were  sole  ;  ^  and  the  marriage  of  any  woman 
will  not  extinguish  her  authority  as  an  execu- 
trix, administratrix,  guardian,  or  trustee,  but  she 
will  continue,  notwithstanding  such  marriage,  to 
hold  such  trust  in  all  respects  in  the  same  man- 

^  Swan  V.  S'/ioiv,  11  Allen,  224. 

2  97  Mass.  359.  '  St.  1874,  c.  184,  §  4. 


102  LAW    OF   MARRIED    WOMEN. 

ner  and  with  the  same  effect  as  if  she  had  re- 
mained sole  and  unmarried.^ 

The  widow  of  an  intestate  may  be  appointed 
administratrix  of  her  husband's  estate.^ 

\VITXESS    IN    SUITS     TO    WHICH    HUSBAND    IS    A 
PARTY. 

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. 


OTHER   EIGHTS    AXD    LIABILITIES.  103 

The  testimony  of  a  wife  as  to  a  transaction 
between  her  husband  and  herself,  when  no  one 
else  is  present,  is  under  this  statute  inadmis- 
sible.-^ 

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.* 

RIGHT    OF   HUSBAXD   TO    CHASTISE    WIFE. 

Sir  William  Blackstone  in  his  Commentaries 
says :  "  The  husband  also,  by  the  old  law, 
might  give  his  wife  moderate  correction.  For, 
as  he  is  to  answer  for  her  misbehavior,  the  law 
thought  it  reasonable  to  intrust  him  with  this 
power  of  restraining  her  by  domestic  chastise- 
ment, in  the  same  moderation  that  a  man  is 
allowed  to  correct  his  apprentices  or  children, 

^  Brown  v.  Wood,  121  Mass.  137. 
2  Gen.  St.  c.  155. 

^  Jenkins  v.  Dawes,  115  Mass.  599. 
*  Pease  v.  Allis,  110  Mass.  157. 


104  LAW   OF   MARRIED   WOME:Nr. 

for  whom  the  master  or  parent  is  also  liable  in 
some  cases  to  answer.  But  this  power  of  correc- 
tion was  confined  within  reasonable  bounds,  and 
the  husband  was  prohibited  from  using  any  vio- 
lence to  his  wife  aliter  qiiam  ad  vinim,  ex  causa  regi- 
minis  et  castigationis  uxoris  stice,  licite  et  rationaUliter 
pertinet.  The  civil  law  gave  the  husband  the  same 
or  a  larger  autht)rity  over  his  wife  ;  allowing  him, 
for  some  misdemeanors,  ^d?^^/?/^  et  fiistihus  acriter 
verherare  iixorem  ;  for  others,  only  modicam  castiga- 
tionem  adhibere.  But  with  us,  in  the  politer  reign 
of  Charles  the  Second,  this  power  of  correction 
began  to  be  doubted ;  and  a  wife  may  now  have 
security  of  the  peace  against  her  husband,  or, 
in  return,  a  husband  against  his  wife.  Yet  the 
lower  rank  of  people,  who  were  always  fond  of 
the  old  common  law,  still  claim  and  exert  their 
ancient  privilege  ;  and  the  courts  of  law  will  still 
permit  a  husband  to  restrain  a  wife  of  her  lib- 
erty, in  case  of  any  gross  misbehavior."  ^ 

In  Massachusetts  it  is  not  one  of  the  rights 
which  the  man  acquires  by  marriage  to  strike  or 
beat  his  wife,  even  though  she  be  drunk  or  inso- 
lent ;  and  if  he  do  strike  her,  and  death  results 
from  the  blow,  he  is  guilty  of  manslaughter  at 
least.^ 
1  1  Bl,  Com.  444.         ^  q^^^^  ^^  McAfee,  108  Mass.  458. 


OTHER   EIGHTS    AND    LIABILITIES.  105 

Whenever  a  husband  without  just  cause  fails 
to  furnish  suitable  support  for  his  wife,  or  has 
deserted  her,  or  when  the  wife,  for  justifiable 
cause,  is  actually  living  apart  from  her  husband, 
the  Supreme  Judicial  Court  may,  on  the  petition 
of  the  wife,  prohibit  the  husband  from  imposing 
any  restraint  on  her  personal  liberty.-^ 

RIGHT    OF   HUSBAND   TO    SERVICES    OF   WIFE. 

The  husband  has  a  right  to  the  services  of  his 
wife,  and  is  bound  to  sustain  her  in  sickness  and 
health.  Any  injury  inflicted  on  her  which  di- 
minishes the  value  of  this  right,  or  increases  the 
burden  of  this  duty,  is  a  pecuniary  loss  to  him. 
His  only  remedy  in  case  of  any  injury  to  his 
wife,  or  for  her  seduction,  is  by  an  action  for  the 
loss  of  her  service  and  of  her  comfort  and  so- 
ciety. The  fact  that  the  husband  was,  at  the 
time  of  the  wife's  injury,  in  the  employment  of 
the  corporation  by  whose  negligence  she  was  in- 
jured, will  not  be  permitted  to  defeat  his  claim.^ 

1  St.  1874,  c.  205.    See  Bigelow  v.  Bigelow,  120  Mass.  320. 
^  Gannon  v.  Housatonic  R.  R.  Co.,  112  Mass.  234. 


14 


106  LAW    OF   MARRIED    WOMEN. 


COXSTITUTIOXAL   TO    TAX    WOMEX. 

By  the  Constitution  of  Massachusetts,  c.  1,  §  1, 
art.  4,  the  legislature  have  power  to  impose 
taxes  "  upon  all  the  inhabitants  of,  and  persons 
resident,  and  estates  lying  within,  the  said  com- 
monwealth." By  the  laws  passed  by  the  legis- 
lature, in  pursuance  of  this  power  and  authority, 
a  woman  is  liable  to  taxation,  although  she  is 
not  qualified  to  vote  for  the  officers  by  whom 
the  taxes  were  assessed.-^ 

A   WOMAN    CANNOT  BE  A  JUSTICE    OF    THE    PEACE. 

By  the  Constitution  of  the  Commonwealth  the 
office  of  Justice  of  the  Peace  is  a  judicial  office, 
and  must  be  exercised  by  the  officer  in  person  ; 
and  a  woman,  whether  married  or  unmarried, 
if  appointed  to  such  an  office,  would  have  no 
constitutional  or  legal  authority  to  exercise  any 
of  the  functions  appertaining  to  it.^ 

1   Wheeler  v.  Wall,  6  Allen,  558. 

^  Opinion  of  Justices,  107  Mass.  604.  Miss  Strickland,  in 
her  Queens  of  England,  Vol.  Y.  p.  278,  says  that  Queen 
Mary  made  Lady  Berkley  a  justice  of  the  peace  for  Glouces- 
tershire, and  Lady  Rous  of  the  quorum  for  Suffolk,  and  that 
she  sat  with  the  other  justices  at  assizes,  cincta  gladio. 


OTHER   RIGHTS    AND    LIABILITIES.  107 


A    WOMAN    MAY    SERVE     OX    THE     SCHOOL     COM- 
MITTEE. 

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.^ 


GUARDIAN   FOR   MARRIED   WOMEN. 

When  a  married  woman  owns  property,  real 
or  personal,  a  guardian  may  be  appointed  to 

^  Peahody  v.  School  Committee  of  Boston,  115  Mass.  383. 
2  St.  1874,  c.  389. 


108  LAW   OF    MARRIED    WOMEX. 

her  for  the  same  causes  and  in  the  same  man- 
ner as  if  she  were  sole.  But  the  husband  is 
entitled  to  notice  before  a  guardian  can  be  ap- 
pointed. Such  guardian  cannot  apply  the  prop- 
erty of  his  ward  to  the  maintenance  of  herself 
and  family,  while  she  is  married,  unless  author- 
ized by  the  Probate  Court,  on  account  of  the 
inability  of  the  husband  to  suitably  maintain 
her  or  them,  or  for  other  sufficient  cause.  Such 
a  guardian  will  not  have  the  care,  custody,  or 
education  of  his  ward,  except  in  case  of  the 
insanity  of  the  husband,  or  of  his  abandoning  his 
wife,  by  absenting  himself  from  the  state  and 
making  no  provision  for  her.-^ 

INSANITY    OF   HUSBAND    OR   WIFE. 

When  a  married  woman  is  by  reason  of  in- 
sanity incompetent  to  release  her  right  of  dower 
or  homestead,  her  husband  or  any  suitable  per- 
son may  be  appointed  guardian  for  that  pur- 
pose.^ 

When  an  insane  woman  is  deserted  by  her 
husband,  or  her  husband  fails  to  furnish  for  her 

1  Gen.  St.  c.  108,  §§  16,  17,  18. 
*  Ibid.  §  19.     See  A7ite,  p.  56. 


OTHER   RIGHTS    AND    LIABILITIES.  100 

a  suitable  support,  or  when  a  wife  who  is  living 
apart  from  her  husband  for  any  justifiable  cause 
becomes  insane,  the  Supreme  Court  may,  on  the 
petition  of  the  guardian,  or  next  friend  of  such 
insane  woman,  make  such  order  concerning  her 
support  and  the  support  of  her  minor  children 
by  said  husband  as  it  deems  expedient,  and  the 
court  may  from  time  to  time  revise  and  alter 
such  decree  as  circumstances  may  require. 
Upon  such  petition  the  property  of  the  husband 
may  be  attached  in  the  same  manner  as  upon 
a  libel  for  divorce.-^ 

If  the  husband  is  insane  and  under  guardian- 
ship, the  Probate  Court  may  order  an  allowance 
to  be  paid  to  the  wife  out  of  his  estate.^ 

SUPPORT    OF   WIFE    DESERTED    BY   HUSBAND. 

Where  a  husband  has  deserted  or  fails  to  fur- 
nish suitable  support  for  his  wife,  or  where  the 
wife  is  for  a  justifiable  cause  living  apart  from 
her  husband,  the  court  will,  upon  application, 
make  such  order  as  it  deems  expedient  concern- 
ing the  support  of  the  wife.^ 

1  St.  1878,  c.  199.  3  St.  1874,  c.  205. 

2  St.  1862,  c.  116. 


APPENDIX. 


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. 


INDEX. 


ACCESSORY.    See  Crime. 
ADULTERY 

of  wife  discharges  husband  from  liability  for  her  support,  50. 

is  ground  for  divorce,  6  7. 
AGENCY 

of  -wife  for  husband,  47. 
in  crimes,  when  implied,  47,  49. 

of  husband  for  wife,  51. 
ALIMONY 

decreed  to  wife  in  case  of  divorce,  79. 

may  be  refused,  80. 

attachment  to  secure  payment  of,  80. 

security  may  be  required,  80. 
ALLOWANCE  PENDENTE  LITE 

may  be  ordered  paid  wife  during  pendency  of  libel  for  divorce, 
78. 

exceeding  taxable  costs,  78. 

may  include  counsel  fees,  79. 
ANTE-NUPTIAL  CONTRACTS.    See  Contracts. 
APPENDIX 

Laws  of  1874,  Ch.  184,  110. 
ARREST 

of  women  on  civil  process,  64, 
CHASTISEMENT 

of  wife  by  husband,  104. 
CHILDREN 

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. 

CLOTHING 

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

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. 
CONTRACTS,  ANTE-NUPTIAL 

must  be  in  writing,  26. 

must  be  made  by  female  minor,  26. 

must  be  recorded,  26. 

must  be  enforced  in  equity,  27. 

not  a  bar  in  Probate  Court,  27. 
CONTRACTS  OF  MARRIED  WOMEN 

at  common  law,  35. 

made  before  marriage,  35. 

with  reference  to  separate  property,  35. 

for  necessaries,  36. 

valid  in  all  cases  except  with  husband,  37. 

coming  from  other  states  or  abandoned  by  their  husbands,  47. 
CONTRACTS  BETWEEN  HUSBAND  AND  WIPE 

void  at  law,  38. 

perhaps  sustained  in  equity,  40. 

in  articles  of  separation,  41. 
CONVEYANCE.     5ee  Deed  ;  Gift;  Real  Estate. 
CRIMES 

wife  not  liable  for,  if  committed  in  presence  of  her  husband,  61. 
unless  shown  not  to  have  been  acting  under  coercion,  61. 

liable  for  burning  property  belonging  to  husband,  63. 

wife  cannot  be  accessory  after  fact  to  crime  of  husband,  63. 
CRUEL  AND  ABUSIVE  TREATMENT 

ground  for  divorce,  69. 
CRUELTY 

when  ground  for  divorce,  68. 
CURTESY 

right  of  husband  to,  95. 


INDEX.  113 

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

belongs  naturally  to  parents,  84. 

if  parents  are  dead  or  incompetent,  guardian  may  be  appointed, 

84. 
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. 
DECREE 

in  divorce  may  be  nisi  or  absolute,  74. 
nisi  when  granted,  75. 
made  absolute  after  six  months,  75. 
effect  of  absolute  decree,  77. 
DEED 

from  husband  to  wife  void  at  law,  29. 
perhaps  sustained  in  equity,  30. 
from  husband  to  wife  through  third  person,  30. 
DESERTION 

when  ground  for  divorce,  69,  70. 
liability  of  husband  for  necessaries  for  wife  after,  49. 
support  of  wife  when  deserted  by  husband,  109. 
DISTRIBUTION 

in  case  of  intestacy,  95-97, 
DIVORCE 

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. 
15 


114  INDEX. 

provisions  concerning  property,  82. 
See  Custody  of  Children. 
DONATIO   CAUSA  MORTIS 

may  be  made  by  married  woman,  94. 
by  husband  to  wife,  30. 
DOWER 

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. 
ENTIRETIES 

husband  and  wife  take  real  estate  by,  57. 
EQUITY 

has  jurisdiction  of  ante-nuptial  contracts,  27. 
may  uphold  deed  from  husband  to  wife,  30. 
may  make  husband  trustee  for  wife,  31,  34. 
FRAUD 

makes  marriage  voidable,  20. 

transfer  of  property  to  defeat  decree  giving  alimony  is,  81. 
FRIENDS.     See  Quakers. 
FUNERAL  EXPENSES 

of  wife,  liability  of  husband  for,  50. 
GIFT 

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. 
GUARDIAN 

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. 
HOMESTEAD 

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. 
HUSBAND 

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, 

105. 
right  to  services  of  wife,  105. 
ILLEGITIMATE  ISSUE.    See  Children. 
IMPOTENCY 

ground  for  divorce,  68. 
BIPRISONMENT 

when  ground  for  divorce,  68. 
INSANITY 

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. 
INSURANCE    POLICIES 

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. 
INTESTACY 

distribution  in  case  of,  95-97. 


116  INDEX. 

INTOXICATION 

when  ground  for  divorce,  69. 
ISSUE.    See  Children. 
JUSTICE   OF   THE  PEACE 

woman  cannot  be,  106. 
LEGITIMACY  OF  ISSUE.    See  Children. 
MARRIAGE 

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. 
MARRIED  WOMEN 

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. 
IMIOTSTER 

liable  to  penalty  for  marrying  parties  below  age  of  consent,  17. 
MORTGAGES 

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. 
NECESSAPJES 

what  are,  48. 

liability  of  husband  for,  of  wife,  48  -  50. 
PARTNERSHIP 

of  married  woman,  46. 
POLYGAMY 

when  committed,  19,  77. 
POST-NUPTIAL   SETTLEMENT.     See  Gift. 
PROMISSORY  NOTES 

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. 

QUAKERS 

form  of  marriage  among,  23. 
REAL  ESTATE 

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. 
RECRBIINATIOX 

to  libel  for  divorce,  71. 

SCHOOL  com:>uttee 

■woman  may  be  member  of,  107. 
SEDUCTION  OF  WIFE 

remedy  of  husband  for,  105. 
SEPARATE  BUSINESS 

may  be  carried  on  by  married  -woman,  42. 

certificate  must  be  filed,  43. 

liability  if  certificate  is  filed,  43. 
SEPARATE    PROPERTY 

-what  is,  of  a  mamed  -woman,  32,  33. 
SEPARATION 

articles  of,  41. 
SETTLEMENTS 

under  the  poor  la-ws,  91. 
See  Gift. 
SPECIFIC  PERFORMANCE 

of  ante-nuptial  contract,  27. 
STEP-CHILDREN 

liability  of  husband  for  support  of,  50. 
TAXATION 

of  -women,  not  unconstitutional,  107. 
TORTS 

Hability  of  married  -women  for,  63. 
TRUSTEE 

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 

TRUSTEE  PROCESS 

for  wages  of  wife  or  children,  34. 

to  attach  property  of  wife  in  hands  of  husband,  34. 

in  libel  for  divorce,  80. 
TRUSTS 

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. 
WAGES 

of  wife  cannot  be  attached  by  trustee  process  for  debt  of  hus- 
band, 34. 
WAIVER 

of  provisions  of  husband's  will  by  wife,  98. 
WILL 

of  married  woman  how  far  valid,  93. 

takes  effect  from  death,  94. 

of  husband  may  be  waived  by  wife,  98. 
WITNESS 

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. 
WORK 

of  married  women  on  their  separate  account,  32. 


Printed  at  the  Univexsity  Press,  Cambridge.