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,A-'1a
A TREATISE
ON THE
LAW OF THE DOMESTIC RELATIONS;
EMBRACING
HUSBAND AND WIFE, PARENT AND CHILD, GUARDIAN
AND WARD, INFANCY, AND MASTER
AND SERVANT.
JAMES SCHOULER,
LECTURER IN THE BOSTON UNIVERSITY LAW SCHOOL, AND AUTHOR
OB' TREATISES ON THE "LAW OF PERSONAL PROPERTY,"
"bailments, INCLUDING CARRIERS," ETC.
FOURTH EDITION.
BOSTON:
LITTLE, BROWN, AND COMPANY.
1889.
Entered according to Act of Congress, in the year 1870,
BY JAMES SCHOULER,
In the Clerk's Office of the District Court of the District of Massachusetts.
Entered according to Act of Congress, in the 5-ear 1874,
BY JAMES SCHOULER,
In the Office of the Librarian of Congress at Washington, D. C.
Entered according to Act of Congress, in the j'ear 1882,
BY JAMES SCHOULER,
In the Office of the Librarian of Congress at Washington, D. C.
Entered according to Act of Congress, in the year 1889,
BY JAMES SCHOULER,
In the Office of the Librarian of Congress at Washington, D. C.
T
University Press :
John Wilson and Son, Cambridge.
PREFACE TO THE FOURTH EDITION.
The present edition of this work has been pre-
pared by the author, and in it are embodied the latest
English and American decisions, brought down as
nearly as possible to the date of going to press.
J. S.
Boston, Feb. 22, 1889.
PREFACE TO THE FIRST EDITION.
The purpose of the writer, in the present treatise, is to fur-
nish a clear, accurate, and comprehensive analj'sis of the law
of the domestic relations, as administered in England and
the United States at the present day.
To accomplish this purpose, and at the same time not to
transcend the limits of a single volume, was not easy. It be-
came necessary to treat of principles rather than details, and
to avoid matters of local practice altogether. A few topics,
such as curtesy and dower, which are fully discussed in other
treatises, have been for the same reason touched upon lightly,
and the work, on the whole, made elementary in its method
of treatment, though at the same time practical. The lawyer
who misses elaborate head-notes and subdivisions will yet
find assistance in a full index and table of contents; and
what has been lost in this respect is gained in subject-matter.
Especial pains have been taken to present in this work such
topics, pertaining to the general subject, as were not easily
accessible elsewhere.
The writer has freely consulted the valuable law libraries of
the Suffolk Bar, at Boston, and of Congress, at Washington,
— the latter being the most extensive in this country. Among
works which have afforded him the greatest assistance are
Macqueen on Husband and Wife, Peachey on Marriage Set-
tlements, Macpherson on Infanc3% and Smith on Master and
Servant, — treatises of acknowledged merit in England,
though little known in the United States. Other books,
vi PREFACE TO THE FIRST EDITION.
more familiar, which need not be enumerated at length, fur-
nished valuable material in certain parts of this work, as the
foot-notes sufficiently indicate. The writer deems it just to
himself to add that the time-honored treatise of Judge Reeve
has been found of little service, the radical changes of the
last fifty years rendering new labor, new materials, and a new
plan of treatment absolutely essential to meet the growing
wants of the age.
If, on the whole, the present work is found to answer its
purpose, in the judgment of his professional brethren, the
writer will cheerfully acknowledge such errors and blemishes
as the judicious critic may kindly point out.
JAIVIES SCHOULER.
Washington, D. C, AprU 30, 1870.
TABLE OF CONTENTS.
PAKT I.
INTRODUCTORY CHAPTER.
Page
§ 1. Domestic Relations defined; Earlier Writers 3
§ 2. Plan of Classification, &c 5
§ 3. General Characteristics of the Law of Family 8
§ 4. Law of Husband and Wife now in a Transition State ; Various
Property Schemes stated • . 9
^ § 5. Common-Law Property Scheme 10
^ § 6. Civil-Law Property Scheme 11
i.^ § 7. Community Property Scheme 13
§ 8. The Recent Married Woman's Acts 16
§ 9. Marrias^e and Marital Influence 17
§ 10. General Conclusions as to the Law of Husband and Wife . . 18
§ 11. Remaining Topics of the Domestic Relations; Modern Changes 20
PART IT.
HUSBAND AND WIFE.
CHAPTER I.
MARRIAGE.
§ 12. Definition of Marriage 22
§ 13. Marriage more than a Civil Contract 22
V § 14. Marriages void and voidable 24
§ 1.5. Essentials of Marriasfe 26
§ 16. Disqualification of Blood ; Consanguinity and Aflinity ... 27
VllI TABLE OF CONTENTS.
Page
§ 17. Disqualification of Civil Coudition; Race, Color, Social Kauk,
Religion 29
§ 18. INIental Capacity of Parties to a Marriage 30
§19. Physical Capacity of Parties to Marriage; Impotence, &c. . . 33
§ 20. Disqualification of Infancy 34
§ 21. Disqualification of Prior Marriage undissolved; Polygamy;
Bigamy . 36
§ 22. Same Subject; Impediments following Divorce 38
§ 23. Force, Fraud, and Error, in Marriage 38
§24. Force, Fraud, and Error; Subject continued 43
§ 25. Essential of Marriage Celebration 44
§§26,27. Same Subject: Informal Celebration 45,49
§§ 28, 29. Same Subject; Formal Celebration 52, 51
§ 30. Consent of Parents and Guardians 56
§ 31. Legalizing Defective Marriages; Legislative Marriage ... 58
§ 32. Restraints upon Marriage 58
CHAPTER IL
EFFECT OF MAKRIAGE; PERSON OF THE SPOUSE.
§ .33. Effect of Marriage ; Order of Legal Investigation .... 60
§ 34. Person of the Spouse; Coverture Principle; Husband Head of
Family 60
§ 35. Duty of Spouses to Adhere or Live Together 62
§ 36. Breach by Desertion, &c. ; Duty of making Cohabitation Tol-
erable 63
§ 37. The Matrimonial Domicile 65
§38. Same Subject; Husband's Right to establish Domicile ... 66
§ 39. Domicile relative to Alien and Citizen 67
§ 40. Change of Wife's Name by Marriage 68
§ 41. Right of one Spouse to the other's Society; Suit for Entice-
ment; Alienation of Affections, &c 68
§ 42. Husband's Duty to render Support 70
§ 43. Wife's Duty to render Services 71
§ 44. Right of Chastisement and Correction 71
§ 45. Husband's Right to Gentle Restraint 73
§ 46. Regulation of Household, Visitors, &c 74
§ 47. Custody of Children 75
§ 48. Remedies of Spouses against each other for Breach of Matri-
monial Obligations 75
§49. The Spouse as a Criminal; Private Wrongs and Public
Wrongs compared 77
§ 50. Presumption of Wife's Coercion, how far carried 77
§ 51. Offences against the Property of One Another 78
§ 52. Mutual Disability to Contract, Sue, &c 79
§ 53. Mutual Disqualification as Witnesses 80
TABLE OF CONTENTS. IX
CHAPTER III.
EFFECT OF COVERTURE UPON THE WIEE'S DEBTS AND CONTRACTS.
Page
§ 54. General Inequalities of Coverture at Common Law .... 83
§ .5.5. Exception where Wife is treated as Feme Sole 85
§ 56, 57. Husband's Liability for Wife's Antenuptial Debts . . 85, 87
§ 58. Wife's General Disability to Contract 88
§ 59. Wife's Disability to Contract extending beyond Coverture . . 90
§ 60. Wife binds Husband as Agent 91
§61. Wife's Necessaries; Foundation of Husband's Obligation . . 92
§ 62. Wife's Necessaries ; Living together or separate 95
§§ 63-65. Wife's Necessaries where Spouses live together . 96. 99, 101
§§ 66, 67. Wife's Necessaries where Spouses live apart . . 102, 106
§ 68. Wife's Necessaries where Spouses live apart; Mutual Separa-
tion 107
§ 69. Wife's Necessaries where Spouses live apart; Presumptions;
Good Faith 109
§70. Wife's Necessaries; Snmma,i'y of Doctrine 110
§ 71. Wife's Necessaries; Miscellaneous Points Ill
§ 72. Wife's General Agency for her Husband 113
§ 73. Effect of Marriage of Debtor and Creditor 116
CHAPTER IV.
EFFECT OF COVERTURE UPON THE WIFE's INJURIES AND FRAUDS.
§ 74. General Principle stated 116
§ 75. Torts by the Wife ; Husband and Wife sued together, or Hus-
band alone; Pi-esumption of Coercion, &c 117
§76. Torts by Wife which are based on Contract 119
§ 77. Torts committed upon the Wife 120
§78. Torts upon the Wife ; Instantaneous Death; Statutes . . . 123
§ 79. Torts upon the Wife ; Miscellaneous Points 124
CHAPTER V.
EFFECT OF COVERTURE UPON THE WIFE's PERSONAL PROPERTY.
§ 80. Wife's Personal Property in General ; oNIarriage a Gift to the
Husband 125
§ 81. Earnings of Wife vest in Husband 126
§ 82. Wife's Personal Property in Possession 127
§83. Wife's Personalty in Action 129
§ 84. Wife Personalty in Action ; Reduction into Possession . . . 131
X TABLE OF CONTENTS.
Page
§ 85. Wife's Personalty in Action ; Wife's Equity to a Settlement 133
§ 86. Personal Property held by Wife as Fiduciary ; Wife as Execu-
trix, &c 134
CHAPTER VI.
EFFECT OF COVERTURE UPON THE WIFE'S CHATTELS REAL AND REAL
ESTATE.
§§ 87, 88. Husband's Interest in Wife's Chattels Real, Leases, &c.
135, 138
§89. Wife's Real Estate; Husband's Interest 140
§90. Wife's Real Estate ; Husband's Right to Convey or Lease . . 144
§91. Wife's Real Estate; Husband's Mortgage; AVa.ste . . . .147
§92. Wife's Real Estate; Husband's Dissent to Purchase, &c. ;
Conversion 147
§ 93. Wife's Real Estate; Husband's Agreement to Convey . . . 149
§ 94. Wife's Agreement to Convey, Her Conveyance, Mortgage, &c.,
under Statutes 149
§ 95. Covenants in Wife's Statute Conveyance or Mortgage, &c. . 153
§96. Conveyance, &c., of Infant Wife's Lands 155
§ 97. Distinction between Wife's General and Separate Real Estate 155
§ 98. Wife's Life Estate ; Joint Tenancy, &c 156
§ 99. Husband's Freehold Interest in Wife's Land not Devisable by
Wife 157
CHAPTER VII.
COVERTURE MODIFIED BY EQUITY AND RECENT STATUTES.
§ 100. Prevalent Tendency to equalize the Sexes; Marriage Rela-
tion affected . 157
§ 101. ]\Iodern Changes in Married Women's Rights; How to be
Studied 159
§102. Modern Equity and Statute Doctrine; England and the
United States 159
CHAPTER VIII.
THE wife's separate PROPERTY; ENGLISH DOCTRINE.
§103. Origin and Nature of Separate Estate in Chancery . . . .160
§ 104. Whether Appointment of a Trustee is Necessary . . . 161
§ 105. Coverture applies Prima Facie ; How Separate Estate is
created 162
§ 106. Separate Use binds Produce of Fund . 165
TABLE OF CONTENTS. XI
Page
§ 107. Separate Use exists only during Marriage; Exceptions; Am-
bulatory Operation 166
§ 108. Wife's Right to renounce Separate Use, &c 167
§ 109. Separate Use and the Marital Obligations 168
§ 110. Clause of Restraint upon Anticipation 169
§ 111. Separate Use in Common-Law Courts ; English Married
Women's Acts 170
CHAPTER IX.
THE wife's separate PROPERTY; AMERICAN DOCTRrNE.
§ 112. Early American Rule 171
§ 113. The Late Married Women's Acts; Social Revolution . . . 173
§ 114. Scope of Married Women's Acts; Constitutional Points . . 177
§ 115. Married Women's Acts as to Antenuptial Property and Ac-
quisitions from Third Persons 180
§116. Change of Investment; Increase and Profits ; Purchase, &c. 181
§ 117. Methods of Transfer from Third Parties under these Acts . 182
§118. Acquisitions from Husband not so much Favored .... 183
§ 119. Husband's Control; Mixing Wife's Property or Keeping it
Distinct 185
§120. Husband as Wife's Trustee in this Connection 186
§ 120 a. Presumptions as to Separate Pi'operty under these Acts . 187
§ 121. Schedule or Inventory of Wife's Property 189
§ 122. Statutory and Equitable Separate Property 189
§ 123. American Equity Doctrine; Trustee for Separate Property . 190
§124. Equity Doctrine; How Separate Use created 191
§ 125. Equity Doctrine ; Acquisition by Contract ; Produce and
Income 193
§126. Equity Doctrine; Preserving Identity of Fund 193
§ 127. Equity Doctrine; Separate Use only in Married State; How
Ambulatory 194
§ 128. Equity Doctrine; Whether Marital Obligations affected . . 195
§ 129. Equity Doctrine; Restraint upon Anticipation 195
CHAPTER X.
THE wife's dominion OVER HER EQUITABLE SEPARATE PROPERTY.
§ 130. General Principle of Wife's Dominion 196
§ 131. Wife, unless restrained, has Full Power to dispose . . . 198
§ 132. Same Principle applies to Income 197
§ 133. Technical Difficulties as to disposing of Real Estate . . . 197
§ 134. Liability of Separate Estate on Wife's Engagements; Eng-
lish Doctrine 198
XU TABLE OF CONTENTS.
Page
§ 135. The Same Subject ; Latest English Doctrine 201
§ 136. Dominion and Liability of Wife's Separate Estate ; Ameri-
can Doctrine 203
§ 136 a. Property with Power of Appointment 205
§ 137. Wife's Right to bestow upon Husband, bind for his
Debts, &c 205
§138. Concurrence of Wife's Trustee, whether Essential . . . . 207
§ 139. Whether Wife must be specially restrained under the Trust 208
§ 140. Wife's Participation in Breach of Trust with Husband or
Trustee 209
§ 111. Income to Husband ; One Year's Arrears 209
CHAPTER XI.
THE wife's dominion OVER HER STATUTORY SEPARATE PROPERTY.
§ 142. Dominion under Married Women's Acts in General . . . 210
§ 143. New York Rule as to Wife's Charge not Beneficial ... 210
§144. Combined Tests; Benefit and Express Intention .... 213
§ 144 a. Wife's Separate Property bound for Family Necessa-
ries, &c 214
§ 145. Whether Wife may bind as Surety or Guarantor .... 214
§ 146. Inquiry into Consideration Pertinent ; Promissory Note,
Bond, &c 216
§ 147. Equity charges Engagement on General as well as Specific
Property 217
§ 148. Married Woman's Executory Promise; Purchase on Credit. 217
§ 149. Married Woman's Ownership of Stock ; Employment of
Counsel . 219
§ 150. Joinder of Husband; Wife's Conveyances and Contracts . 220
§ 150 a. Statutory Restraints upon Alienation of Wife's Separate
Property 222
§ 151. Improvements, Repairs, &c., on Wife's Lauds; Mechanics'
Liens 222
§ 152. :Mortgage of Wife's Lands 223
§ 153. Wife's Separate Property; Husband as Managing Agent . 224
§ 154. Husband as Managing Agent; Services, &c. ; Husband's
Creditors 225
§ 155. Husband's Dealings with Wife's Property ; Gift, Fraud, Use
of Income, &c 226
§ 156. Married Woman as Trustee 230
§157. Tendency as to Wife's Binding Capacity; her Estoppel . . 231
§158. Proceedingsfor charging Wife's Separate Estate; Suing and
being sued as a Single Woman 231
§ 158 a. Promise of a Third Person to pay a Married Woman's
Debt 233
§ 159. English Married Women's Acts; Wife's Disposition . . . 233
TABLE OF CONTENTS. xiii
CHAPTER XII.
THE wife's pin-money, SEPARATE EARNINGS, AND POWER TO TRADE.
Pagb
§ 160. The Wife's Pin-Money 234
§ 161. Wife's Housekeeping Allowance 235
§ 162. Wife's Earnings belong to the Husband; Legislative Chan-
ges, &c 236
§163. Wife's Power to Trade; Earlier English Rules 238
§164. Wife's Power to Trade; American Equity Rule .... 239
§ 105. Conclusion from English and American Decisions .... 240
§ 166. Enlargement of Wife's Power to Trade under Recent Stat-
utes 241
§ 167. Wife's Trading Liabilities under America.n Statutes . . . 243
§168. Wife's Trade; Husband's Participation 244
§ 109. Wife as Copartner with Husband or Others 247
§ 170. Civil-Law Doctrine of Separate Trade 249
§ 170, note. Modern Statute Changes reviewed 249
CHAPTER XIII.
ANTENUPTIAL SETTLEMENTS.
§171. Nature of Marriage Settlements 250
§ 172. Distinguished from Promises to Marry under Statute of
Frauds 251
§ 173. Marriage the Consideration which supports Antenuptial
Settlements 251
§ 174. How far this Support extends 252
§ 175. Settlement Good in Pursuance of Written Agreement . . 254
§ 170. Form of Antenuptial Settlements 255
§ 177. Marriage Articles 256
§ 178. ]\Iarriage Settlements by Third Persons 257
§179. Effect of Statute of Frauds 258
§ 180. General Requirements, Trustee, &c 2.58
§181. Secret Settlement before Marriage ; Fraud of a Spouse . . 259
§182. Reforming Marriage Settlements; Portions, &c 261
§ 183. Equity corrects Mistakes, or sets aside ; Fraud and Improvi-
dence 261
§183a. Rescission or Avoidance of a Marriage Settlement . . . 263
CHAPTER XIV.
POSTNUPTIAL SETTLEMENTS; GIFTS AND GENERAL TRANSACTIONS
BETWEEN SPOUSES.
§ 184. Postnuptial Settlements distinguished from Antenuptial;
Gifts between Spouses 264
XIV TABLE OF CONTENTS.
Page
§ 185. Postnuptial Settlements as to Creditors and Purchasers ;
Statutes 13 Eliz. and 27 Eliz 265
§ 186. Same Subject; Statute 13 Eliz.; Bankrupt Acts .... 2G5
§ 187. Same Subject; Stat. 27 Eliz 208
§ 188. Same Subject; Settlement upon Valuable Consideration . 271
§§ 189, 190. Postnuptial Settlements as between the Spouses 273, 275
§ 101. General Transactions between Husband and Wife . . . 276
§ 192. Transfer of Note from one Spouse to the Other; Deposit;
Conveyance 277
§ 193. Conveyances or Transfers to Husband and Wife ; Effect . 278
§ 191. Questions of Resulting Trust between Husband and Wife . 279
§ 195. Insurance upou Husband's Life 279
CHAPTER XV.
DEATH OF THE WIFE; RIGHTS AND LIABILITIES OF THE SURVIVING
HUSBAND.
§ 196. Husband's Right to Administer 280
§ 197. The same Subject ; Assets for Wife's Debts 281
§ 198. Surviving Husband's Rights in Wife's Personal Pj-operty . 282
§ 199. Husband's Obligation to bury Wife; Rights corresponding 285
§ 200. Death of Husband pending Settlement of Wife's Estate . . 286
§ 201. Rights in Wife's Real Estate ; Tenancy by the Curtesy . . 287
§ 202. Tenancy by the Curtesy ; Subject continued 288
§ 203. Husband's Claims against Wife's Real Estate ; Improve-
ments, &c 289
§ 203, note. Wills of Married Women 289
CHAPTER XVI.
DEATH OF THE HUSBAND; RIGHTS AND LIABILITIES OF THE SURVIV-
ING WIFE.
§ 204. Widow's Right to Administer 290
§ 205. Widow's Distributive Share in Personalty 291
§ 206. Widow's Waiver of Provision of Will 292
§ 207. Widow's Allowance 292
§ 208. Widow's Paraphernalia 293
§ 209. Equity of Redemption and Exoneration in Mortgages . . 296
§ 210. Controversies between Administrator and Widow .... 297
§ 211. Widow's Obligation to bury Husband 297
§ 212. Effect of Husband's Death upon Wife's Contracts .... 298
§ 213. The Widow's Dower 299
§ 214. Homestead Rights 300
§ 214 a. Simultaneous Death of Husband and Wife; Ownership of
Fund 301
TABLE OF CONTENTS. XV
CHAPTER XVIL
SEPARATIOX AND DIVORCE.
Page
§ 215. Deed of Separation ; General Doctrine 301
§216. The Same Subject; English Rule 303
§ 217. The Same Subject; American Rule 305
§218. The Same Subject; what Covenants are upheld 306
§219. Abandonment; Rights of Deserted Wife 310
§ 220. Divorce Legislation in General 311
§ 220a!. Legislation upon Divorce; Divorce from Bed and Board;
Divorce from Bond of Matrimony, &c 313
§ 220 6. Causes of Divorce; Adultery; Cruelty; Desertion; Miscel-
laneous Causes 314
§ 221. Effect of Absolute Divorce upon Property Rights .... 316
§ 222. Effect of Partial Divorce upon Property Rights 319
§ 222, note. Conflict of Laves relating to Marriage, Divorce, &c, . 320
PART III.
PARENT AND CHILD.
CHAPTER I.
OF LEGITIMATE CHILDREN IN GENERAL.
§ 223. Parent and Child in General; Children, Legitimate and
Illegitimate 322
§ 221. Legitimate Children in General 323
§ 225. Presumption of Legitimacy 323
§ 226. Legitimation of Illicit Offspring by Subsequent Marriage . 327
§ 227. Legitimation by Subsequent Marriage not favored in Eng-
land 330
§ 227 a. Legitimacy of Offspring born after Divorce 331
§ 228. Legitimacy in Marriages Null but Bona Fide contracted . 331
§ 229. Legitimation by the State or Sovereign 331
§ 2:]0. Domicile of Children 332
§ 231. Conflict of Laws as to Domicile and Legitimacy .... 333
§ 232. Parental Relation by Adoption 335
CHAPTER 11.
THE DUTIES OF PARENTS.
§ 233. Leading Duties of Parents enumerated 337
§2.34. Duty of Protection ; Defence; Personal and Legal . . , . 337
XVI TABLE OF CONTENTS.
Paoe
§ 235. Duty of Education 338
§ 236. Duty of Maintenance in General 341
§ 237. Maintenance at Common Law ; Statute Provisions .... 342
§238. Maintenance, &c., in Chancery; Allowance from Child's
Fortune 346
§239. Cliancery Maintenance as to Mother; Separated Parents, &c. 349
§ 240. Chancery Maintenance; Income; Fund 351
§ 241. Whether Child may bind Parent as Agent; Child's Neces-
saries 352
§ 242. Duty of providing a Trade or Profession 355
§ 242 a. Liability for Minor Child's Funeral Expenses . . . . . 356
CHAPTER III.
THE RIGHTS OF PARENTS.
§ 243. Foundation of Parental Rights 356
§244. Parental Right; Chastisement; Indictment for Cruelty, &c. 3.56
§245. Parental Custody ; Common-law Rule; English Doctrine . 358
§ 246. Chancery Jurisdiction in Custody; Common Law overruled 359
§247. Custody; English Rule; Statute 361
§ 248. Parental Custody ; American Rule 362
§ 249. Custody under Divorce and other Statutes 364
§2.30. Custody of Minors; Child's own Wishes 366
§ 251. Contracts transferring Pai'ental Rights . . . . . . . 367
§§ 252, 2.52 a. Right of Parent to Child's Labor and Services 368, 369
§ 253. Clothing, Money, &c., given to the Child; Right to Insure . 373
§ 254. Mother's Rights to Child's Services and Earnings ..... 373
§ 255. Parent has no Right to Child's General Property .... 374
§ 255 a. Child's Necessaries; Miscellaneous Points 375
§ 256. Constitutional Right of Legislature to interfere with Parent 375
CHAPTEPv IV.
THE parent's RIGHTS AND LIABILITIES FOR THE CHILD'S INJURIES
AND FRAUDS.
§ 257. Injuries, &c., committed upon or by the Child 376
§§ 258, 259. Injuries committed upon the Child; Parent's Right to
sue 376, 378
§ 260. Suit for harboring or enticing away One's Child; Abduc-
tion, &c 379
§ 261. Suit for Seduction of a Child 382
§ 262. Damages in Parental Suits for Injury to the Child ... 387
§ 263. Parental Liability where the Child is the Injuring Party . 388
TABLE OF CONTENTS. XVll
CHAPTER V.
DUTIES AND RIGHTS OF CHILDREN, WITH REFERENCE TO THEIR
PARENTS.
Paob
§ 264. General Duties of Children to Parents 391
§ 265. Whether Child may be legally bound to support Parent;
Statutes 392
§ 266. Rights of Children in General 394
§ 267. The Emancipation of a Child 394
§ 267 a. How a Minor Child is Emancipated; Parental Relinquish-
ment of Right to Earnings 395
§ 2G8. Effect of JNIinor Child's Emancipation or Relinquishment . 399
§ 269. Rights of Full-grown Children 400
§270. Gifts, &c., and Transactions between Parent and Child . . 402
§ 271. Same Subject; English Cases 404
§ 272. Advancements and Distributive Shares; Expectancies of
Heirs 405
§273. Stepchildren; Quasi Pai'ental Relationsliip 409
§ 274. Claims against the Parental Estate for Services rendered . 410
§ 275. Suits between Child and Parent .410
CHAPTER VI.
ILLEGITIMATE CHILDREN.
§276. Illegitimate Children ; Their Peculiar Footing 412
§277. Disability of Inheritance 413
§ 278, 278 a. Mother preferred to the Putative Father, Custody 416, 418
§ 279. Maintenance of Illegitimate Children 419
§ 280. Persons in Loco Parentis ; Distant Relatives, &c 421
§ 281. Requests to Illegitimate Children 422
§ 282. Guardianship of an Illegitimate Child 424
PART IV.
GUARDIAN AND WARD.
CHAPTER I.
OF GUARDIANS IN GENERAL; THE SEVERAL KINDS.
§283. Guardianship dsfined; Applied to Person and Estate . . . 425
§ 284. Classification of Guardians in England; Obsolete Species . 426
XVlll TABLE OF CONTENTS.
Paob
§ 285. English Doctrine ; Guardianship by Nature and Nurture . 427
§ 286. English Doctrine ; Guardianship in Socage 428
§ 287. English Doctrine; Testamentary Guardianship 429
§ 288. English Doctrine; Chancery Guardianship 431
§289. English Doctrine; Guardianship by Election of Infant . . 433
§ 290. Classification of Guardians of Minors in the United states;
Nature and Nurture, Socage, and Testamentary .... 484
§291. American Doctrine; Chancery and Probate Guardianship . 436
§ 292. Guardianship by the Civil Law 438
§ 293. Guardians of Idiots, Lunatics, Spendthrifts, &c 439
§ 294. Guardians of Married Women 440
§ 295. Special Guardians; Miscellaneous Trusts 440
§ 296. Guardian ad Litem and Next Friend 441
CHAPTER 11.
APPOINTMENT OF GUARDIANS.
§ 297. Appointment of Guardians over Infants in General . . . 441
§ 298. Guardians under Authority of the Law 441
§ 299, 300. Testamentary Guardian.ship, hov? constituted . . 442, 444
§ 301. Guardianship by Appointment of Infant; Right to nominate 445
§ 302. Chancery and Probate Guardians are judicially appointed . 446
§303. The Same Subject; Jurisdiction; how obtained 446
§§ 304, 305. Selection of Chancery or Probate Guardian . . 450, 452
§ 306. Same Subject; Appointment of Married Women; of Non-
Resident, &c 455
§ 307. Method of Appointing Guardian ; Procedure 457
§308. Effect of Appointment ; Conclusiveness of Decree, &c. . . 459
§ 309. Civil-Law Rule of Appointing Guardians ,, 460
CHAPTER III.
TERMINATION OF THE GXTARDIAN'S AUTHORITY.
§ 310. How the Guardian's Authority is terminated 461
§311. Natural Limitation; AVard of Age, &c 461
§312. Death of the Ward 463
§ 313. ]\Iarriage of the Ward 463
§ 314. Death of the Guardian 465
§315. Resignation of the Guardian 465
§§ 316, 317, 317 a. Removal and Supersedure of the Guardian . . 467,
470, 472
§318. Marriage of Female Guardian 473
§319. Other Cases where a New Guardian is appointed .... 474
TABLE OF CONTENTS. XIX
CHAPTER IV.
NATURE OF THE GUARDIAN'S OFFICE.
Page
§ 320. Guardianship relates to Person and Estate 474
§ 321. AVhether a Guardian is a Trustee 476
§322. Joint Guardians 478
§ 323. Judicial Control of the Ward's Property 479
§ 324. Guardianship and other Trusts blended 480
§ 325. Administration durante Minore jEtate 482
§ 326. Quasi Guardianship where no Regular Appointment . . . 483
§ 327. Conflict of Laws as to Guardianship 484
§ 328. Conflict as to Ward's Person 484
§ 329. Conflict as to Ward's Property 485
§ 330. Constitutional Questions relating to Guardianship .... 487
CHAPTER V.
RIGHTS AND DUTIES OF GUARDIANS CONCERNING THE WARD'S
PERSON.
§331. Division of this Chapter 489
§§ 332, 333. Guardian's Right of Custody 489, 491
§ 334. Guardian's Right to change Ward's Domicile or Residence . 493
§ 335. Right to Personal Services of Ward; to recover Damages;
Other Rights 495
§ 338. Guardian's Duties as to Ward's Person ; in General . . . 496
§ 337. Liability for Support of Ward 497
§ 338. Same Subject; Using Income or Capital, &c 500
§ 339. Allowance to Parent for Ward's Support; Chancery Rules . 502
§ 340. Secular and Religious Education of Ward by Guardian . . 504
CHAPTER VI.
RIGHTS AND DUTTRS OF THE GUARDIAN AS TO THE WARD'S ESTATE.
§311. In General; Leading Principles 505
§ 342. Guardian's General Powers and Duties as to Ward's Estate 505
§ 343. Right to sue and arbitrate as to Ward's Estate 506
§ 344. Whether Guardian can bind Ward's Estate by his Contracts 509
§ 345. Title to Promissory Notes, &c. ; Promise not Collateral . . 511
§■346. Guardian's Employment of Agents 511
§ 347. Changes in Character of Ward's Property ; Sales, Ex-
changes, &c 511
§§ 348,349. Limit of Guardian's Responsibility in Management 514, 516
XX TABLE OF CONTENTS.
Page
§§ 350, 351. Management of Ward's Real Estate in Detail . 517, 520
§ 352. Management of the Ward's Personal Property in Detail . . 522
§ 352 a. Whether the Guardian can Bind by Pledge, &c 524
§ 353. Investment of Ward's Funds 524
§ 354. Same Subject; when Chargeable with Interest 528
CHAPTER VII.
SALES OF THE WARD's REAL ESTATE.
§ 355. In Sales of Ward's Personal Property a Liberal Rule ap-
plies 530
§ 356. Otherwise as to Real Estate; Whether Chancery can sell
Infant's Lands 531
§357. Same Subject; English Chancery Doctrine ...... 532
§ 358. Civil-Law Rule as to Sales of Ward's Lands 533
§ 359. Sale of Ward's Lands under Legislative Authority common
in the United States 533
§ 360. American Statutes on this Subject considered 534
§ 361. Same Subject; Essentials of Purchaser's Title ..... 536
§ 361 a. Other Statute Provisions; Mortgage, &c 540
§362. American Statutes; Sales in Cases of Non-Residents . . . 541
§ 363. American Chancery Rules as to Sales of Infant's Land . . 541
§ 364. Guardian's own Sale not binding; Public Sale usually re-
quired 543
CHAPTER VIIL
THE guardian's BOND, INVENTORY, AND ACCOUNTS.
§365. Guardian's Recognizance ; Receiver, &c. ; English Chancery
Rule 543
§ 366. American Rule; Bonds of Probate and other Guardians . . 544
§§ 367, 368. The Same Subject; Liability of Guardian and Sure-
ties 547, 551
§ 369. The Same Subject, Special Bond in Sales of Real Estate . 552
§ 370. The Guardian's Inventory . ... 552
§371. The Guai'dian's Accounts ; English Chancery Practice . . 554
§§ 372, 373. The Guardian's Accounts; American Practice, Peri-
odical and Final Accounts, &c 554, 558
§ 374. The Same Subject; Items allowed the Guardian on Account 559
§ 375. Compensation of Guardians 562
§ 376. Suit on the Guardian's Bond for Default and Misconduct . 564
§377. The Same Subjpot; Remedies against and on behalf of
Sureties 565
TABLE OF CONTENTS. XXi
CHAPTER IX.
RIGHTS AND LIABILITIES OF THE WARD.
Page
§ 378. General Rights of the Ward 568
§ 379. Doctrine of Election as to Wards, Insane or Infant . . . 568
§ 380. Same Subject; Insane Persons and Infants Contrasted . . 569
§ 381. Responsibility of Guardian to Ward as Wrongdoer, &c. . 570
§ 382. Ward's Action or Bill for Account ; Limitations, &c. . . . 571
§ 383. Ward's Right to recover Embezzled Property, &c. .... 572
§ 384. Fraudulent Transactions set aside on Ward's Behalf . . . 573
§ 385. Ward's General Right to repudiate Guardian's Transactions;
His Right of Election 571
§386. Same Subject; Resulting Trusts; Guardian's Misuse of
Funds; Purchase of Ward's Property, &c 576
§ 387. Transactions between Guardian and Ward; Undue Influence 580
§ 388. Same Subject; Situation of Parties at Final Settlement of
Accounts 580
§ 389. Transactions after Guardianship is ended 585
§ 390. Marriage of Ward against Consent of Chancery or Guardian 587
PART V.
INFANCY.
CHAPTER L
THE GENERAL DISABILITIES OF INFANTS.
§ 391. Age of Majority 589
§ 392. Growing Capacity during Non-age ; Legislative Relief from
Non-age 590
§ 393. Conflict of Laws as to True Date of Majority 591
§ 394. Infant's Right of holding Office and performing Official
Functions 592
§ 395. Infant's Responsibility for Crime 594
§ 396. Infant's Criminal Complaint; Infant as Prosecutor; Criminal
Offences against Infants 596
§ 397. Whether Infant may make a Will 596
§ 398. Testimony of Infants 598
§ 399. Marriage Settlements of Infants 600
§ 399 a. Infant's Exercise of a Power 603
XXll TABLE OF CONTENTS.
CHAPTER II.
ACTS VOID AND VOIDABLE.
Page
§ 400. General Principle of Binding Acts and Contracts, as to
Infants 603
§401. The Test as to Void and Voidable ; Infant's Transactions . 604
§ 402. Privilege of avoiding is Personal to Infant; Rule as to Third
Persons, &c 606
§ 403. Modern Tendency regards Infant's Acts and Contracts as
Voidable rather than Void; Instances Discussed . . . 608
§404. Same Subject; Bonds, Notes, &c 609
§405. Same Subject; Deeds, &c. Rule of Zouch )>. Parsons . . 611
§406. Same Subject; Letters of Attorney ; Cognovits, &c. . . . 613
§407. Same Subject; Miscellaneous Acts and Contracts Voidable
and not Void 615
§ 408. Infant's Trading and Partnership Contracts 617
§ 409. Void and Voidable Acts contrasted; When may Voidable
Acts be affirmed or disaffirmed 619
CHAPTER HI.
ACTS BINDING UPON THE INFANT.
§ 410. General Principle of Binding Acts and Contracts .... 621
§411. Contracts for Necessaries ; What are such for Infants . . 621
§§412,413. Contracts for Necessaries ; Subject continued . 624,027
§414. Contracts for Necessaries; Money advanced; Infant's Deed,
Note, &c. ; Equity Rules 680
§ 414 a. Liability for Necessaries, apart from Strict Contract . . 633
§ 415. Binding Contract as to Marriage Relation ; Promise to marry
not binding 634
§ 416. Acts which do not touch Infant's Interest; Where Trustee,
Officer, &c 634
§ 417. Infant INIembers of Corporations 635
§ 418. Acts which the Law would have compelled 635
§ 419. Contracts binding because of Statute; Enlistment; Indenture 635
§ 420. Infant's Recognizance for Appearance on Criminal Charge . 636
§ 421. Whether Infant's Contract for Service binds him .... 637
CHAPTER IV.
THE INJURIES AND FRAUDS OF INFANTS.
§ 422. Division of this Chapter 638
§ 423. Injuries committed by Infant; Infant Civilly Responsible . 638
TABLE OF CONTENTS. Xxiii
Page
§ 424. Immunity for Violation of Contract distinguished .... 640
§§425, 426. Same Subject; Infant's Fraudulent Representations as
to Age, &c 643, 645
§ 427. Injuries, &c., suffered by Infants 646
§ 428. Same Subject; Child's Contributory Negligence .... 647
§ 429. Same Subject; Contributory Negligence of Parent, Pro-
tector, &c 648
§ 430. Suits of Parent and Child for Injury; Loss of Services reck-
oned 650
§ 431. Arbitration, Compromise, and Settlement of Injuries com-
mitted or suffered by Infants 651
CHAPTER V.
RATIFICATIOX AND AVOIDAXCE OF INFANT'S ACTS AND CONTRACTS.
§ 432. Infants may ratify or disaffirm Voidable Acts and Contracts 651
§433. Rule affected by Statute; Lord Tenterden's Act; Other
Statutes 652
§ 434. Rule Independent of Statute ; American Doctrine .... 654
§ 435. The Same Subject ; Instances 655
§ 436. The Same Subject ; Conflicting Dicta 659
§437. The Same Subject; Summary of Doctrine 660
§ 438. Rule as to Conveyance of Infant's Lands, Lease, Mort-
gage, &c 662
§ 439. Same Subject ; Infant's Conveyance, Lapse of Time, &c. . 663
§ 440. The Same Subject ; Entry, &c 665
§ 441. Ratification, &c., as to an Infant's Purchase 667
§442. Executory Contracts, &c., Voidable during Infancy; how
affirmed or disaffirmed 669
§ 443. Rule applied to Infant's Contract of Service 670
§ 444. Parents, Guardians, &c., cannot render Transaction Obliga-
tory upon the Infant, &c 671
§ 445. Miscellaneous Points ; As to New Promise ; Whether Infant
affirming must know his Legal Rights 672
§ 446. Whether Infant who disaffirms must restore Consideration . 673
§ 446 a. Avoidance through Agents, &c 675
§ 447. Ratification, &c., as to Infant Married Spouse 676
§ 448. Rules ; How far Chancery may elect for the Infant . . . 677
CHAPTER VI.
ACTIONS BY AND AGAINST INFANTS.
§ 449. Actions at Law by Infants ; Suit or Defence by Next Friend
or Guardian 678
§ 450. Action at Law by Infants ; The Next Friend 680
§ 451. Action at Law against Infant; the Guardian ad Litem . . 683
xxiv TABLE OF CONTENTS.
Page
§ 452. Chancery Proceedings by or against Infants ; Corresponding
Rule 685
§ 453. Binding Effect of Decree or Judgment upon the Infant . . 687
PART VI.
MASTER AND SERVANT.
CHAPTER I.
NATURE OF THE RELATION; HOW CREATED AND HOW TERMINATED.
§ 454. Definition ; this not strictly a Domestic Relation .... 689
§ 455. Rule of Classification as to Master and Servant 691
§ 456. Relation of Master and Workman ; Courts of Conciliation ;
Trade Unions, &c 692
§ 457. Relation of Master and Apprentice 694
§ 458. Strict Relation of Master and Servant ; Contract of Hiring . 697
§ 459. Contract of Hiring affected by Statute of Frauds .... 700
§ 400. Contract of Hiring; when in Restraint of Trade or Oppres-
sive as to Length of Term 701
§461. Creating the Relation of Service ; Quasi Servants .... 702
§§ 462, 463. How Contract for Service is terminated; Withdrawal
or Resignation ; Causes of Discharge, &c. . . 704, 707
§464. Termination of Service by Mutual Consent, &c.; Special
Terms 707
§ 465. Servant's Occupation of Master's Premises; No Tenancy
Presumed 708
CHAPTER 11.
MUTUAL OBLIGATIONS OF MASTER AND SERVANT.
§ 466. Obligations to be considered ; as to Master ; as to Servant . 709
§ 467. Master's Obligation as to Education, Discipline, &c. . . . 709
§ 468. Master's Obligation as to furnishing Necessaries .... 710
§469. Master's Obligation as to finding Work 710
§470. Master's Obligation to indemnify Servant 711
§ 471. Master's Obligation to receive into Service the Person en-
gagpd ; Remedies for Breach 711
§ 472. Obligation to pay Wages ; Servant's Right to recover . . 712
§ 473. The Same Subject ; Rules for Payment of Wages ; Offsets ;
Preference ; Apportionment, &c. . 714
§ 474. The Same Subject ; Change of Contract ; Excuse by Act of
God ; Justifiable Termination, &c. . 717
TABLE OF CONTENTS. XXV
Page
§ 475. The Same Subject ; Termination by Mutual Consent ; Spe-
cial Conditions, &c 719
§ 470. Master's Representations as to Servant's Cliaracter ; Guar-
anty as to Character, &c 720
§ 477. Obligations resting specially upon the Servant ; Performance
of his Engagement 721
§ 478. Servant's Accountability to his Master ; Negligence, Unskil-
fulness, &c 722
§ 479. jMaster and Servant may defend one another 723
§ 480. Servant a Competent Witness for his Master ..... 723
CHAPTER III.
RIGHTS AND LIABILITIES OF THE SERVANT AS TO THIRD PERSONS,
§481. Servant not personally Liable on Contracts ; Exceptions , 723
§ 482. Rule of Servant's Liability for his Torts and Frauds . . , 724
§ 483. Torts and Frauds of Public Officers 726
§ 484. Criminal Accountability of Servant 726
CHAPTER IV.
GENERAL RIGHTS AND LIABILITIES OF THE MASTER.
§ 485. Leading Division of this Chapter 727
§ 486. Master's Right of Action for Injuries to Servant .... 727
§ 487. Right of Action for Seduction, Enticement, &c., of Servant 727
§ 488. Whether Servant's Outside Acquisitions belong to Mas-
ter, &c 729
§ 489. Liability of Master upon Servant's Contracts ; Servant's
Agency 730
§ 490. Master's Civil Liability to Others for Servant's Torts . . 733
§491. The Same Subject; Limitations of Rule 735
§ 492. Master's Responsibility fcr Tort to his own Servants; Ex-
ception as to Fellow-Servants, &c 737
§ 493. Master not Criminally Responsible for Servant, but only for
himself 741
§ 494. Final Observations on Law of Domestic Servants .... 741
Preface to the Fourth Edition iii
Preface to First Edition v
Table of Contents vii
Table of Cases xxvii
Index 743
TABLE OF CASES.
Section
Section
A.
Allen V. Allen
210, 225, 405
V. Caster
238, 239
Aaron v. Harley
411
V. Crosland
367
Abbey ;;. Deyo
168, 313
V. Fuller
148
Abbott V. Abbott
52, 221
V. Gaillard
353
V. Bayley
218
V. Higlitower
154
V. Converse
267, 267 a
i\ Hoppin
343
V. Jackson
167
V. Jackson
32
Abrahams v. Kidney
261
V. Little
464
Abshire v. State
197, 399
V. McCulIough
86
Ackerman v. Bunyon
436
V. Minor
404
Ackert v. Pultz
94
V. Peete
305
Ackley v. l^ygert
361
V. Poole 405
435, 438, 439
Acosta V. Robins
271
V. Scurry
89
Acton V. Pierce
175
V. State
367
Adams v. Adams
48, 226, 269
V. Tiffany
376
V. Cutright
30
V. Walt
187
V. Gleaves
324, 377
Allfrey v. AUfrey
389
V. Palmer
12
Allison V. Watson
267
V. Rivierre
382
Allinan v. Owen
372
V. Ross
404
Allsop V. Allsop
77
Adams' Appeal
301, 308
Almond v. Bonnell
114, 398
Adamson v. Armitage
105, 106
Alston V. Alston
325, 366
Addison v Bowie
238
V. Mumford
322, 326
Adlard v. Adlard
190
Alsworth V. Cordtz
402, 439
Agar-IClIis, fn re
340
Altemus's Case
221
V. Lascelles
235
Alverson v. Jones
120 a
Agricultural Ins. Co. v
Barnard 380
Ambrose v. Kenison
199, 412
Ahern c Easterby
67
American, &c. Ins. Co. v.
Owen 94
AUrenfeldt v. Ahrenfeldt 249
Ames ?'. Chew
222
Alabama, &c. Ins. Co.
V. Boykin 94
(-'. Foster
148, 170
Albany Fire Ins. Co. v.
Bay 94
Amnions v. People
367, 376
Albert r. Perry
305
Anderson v. Anderson
77, 83, 107
V. Winn
173
V. Armistead
151
Albin V. Lord
155
V. Brooks
124
Alcock V. Alcock
53
V. Darby
350
Aldrich v. Bennett
267 a
I'. Layton
361, 385
V. Grimes
437
V. Line
149
Aldridge u. Muirhead
153, 155
V. Mather
363, 447
Alexander, Re
186
V. Roberts
188, 355
V. Alexander
321, 374
V. Smith
56
V. Hard
89
V. Soward
445
r. Heriot
435
V. Watson
345
Alfred v. McKay
278
V. Yates
333
XXVlll
TABLE OP CASES.
Section '
Andover v. Merrimack County 269
Andrews, In re, 299, 333
V. Andrews • 188, 380, 399
V. Askey 262
r. Garnett 241
V. Monilaws 158
V. Parkinton 238
V. Salt 340
Andrews's Heirs 329
Andrews' Heirs Case 369
Andros v. Andros 231
Angel V. Felton 57, 75
V. McLellan 241, 413
Ankeny v. Blackistone 343
Annandale, Marchioness of, v. Harris
279
Annin v. Annin 187
Appleton V. Rowley 107, 420
Apthorp V. Bacchus 449
Archer v. Frowde 450
V. Guill 118, 155
V. Hudson 271
V. Koike 105
Archley v. Sprigg 225
Armfield v. Arnifield 173, 174, 348, 349
V. Tate 446
Armitage v. Kinstra 386
V. Mace 189
V. Snowden 386
V. Widoe 406, 444
Armstrong v. Armstrong 80
v. McDonald 252 a
V. Norton 259, 267 a
V. Ross 133, 134, 136, 143, 149, 158
V. Stone 248
V. Walkup 313, 326, 372, 374, 375
Arnold r. Earle
Arrington v. Dortch
Arthur v. Arthur
Arthur's Appeal
Arundell v. Thipps
Ashby !'. Johnston
Ashcraft v. Little
Asher v. State
Ashfield r. Ashfield
Ashhnrst's Appeal
Ashley v. Martin
Ashlin c. Langton
Ashton r. Aylett
Ashworth v. Outram
Askew V. Dupree
Atcherly v. Vernon
Atchison v. Bruff
Atkins V. Atkyns
V. Garwood
V. Sherbino
Atkyns v. Pearce
Atkinson, Ex parte
V. Atkinson
V. Med ford
V. Pliillips
354.
397
206
105, 141
291, 301
188
367
124
374
438
362
372
'406
134
163, 166
26, 29, 30
105
413
66
64
252 «
66
3:;0
354
18
187
Atkinson v. Whitehead
Atlee V. Hook
Attebury v. Attebury
Attridge v. Billings
Atwood V. Halconib
Aucker v. I-evy
Auster i'. Powell
Austin r. Cox
V. Wilson
Averson r. Lord Kinnaird
Avery v. Avery
V. Griffin
V. Vansickle
Aycliff V. Archdale
Ayer v. Warren
Ayers v. Burns
V. Jenkins
Aylward v. Kearney
Aymar v. Roff
B.
B. V. B.
Babb r. Perley
Babbitt v. Babbitt
Babcock v. Doe
V. Eckler
i\ Smith
Bacon v. Taylor
Baddeley v. Baddeley
Badenhoff v. Johnson
Badger v. Phinney
Badgley v. Decker
Bagby v. Emberson
Baggett V. Meux
Bagley r. Fletcher
?-."Mollard
Bahin v. Hughes
Bahn v. Balm
Bailey, Ex parte
V. Bailey
V. Bamberger
V. Calcott
V. Duncan
V. Fiske
V. King
i\ Lanahan
V. Pearson
V. Rodgers
Bain v. Buff
V. Lescher
Bainbridge r. Brown
V. Pickering
Baines v. Barnes
Bair v. Robinson
Baker ;'. Baker
V. Barney
V. Bolton
V. Bradley
V. Flourney
Section
348, 352
462
162
61
252 a,'267 a
176
272
325
76
53
220 6
58
143
414
58, 219, 486
414
174
388
21
20
89
38
403
380
175
343, 350
190
305
424, 446
261
94
110
405, 440
281
76
220 6
245
45
446
66
89
17
241
462
145
376
137
105
271
413
238
211
23, 252 a
68
271
89
TABLE OF CASES.
XXIX
Baker i;. Gregory
V. Haldeman
V. Hall
V. Harder
V. Hathaway
i;. Jordan
r. Kennett
V. Lamb
V. Lovett
V. Morris
V. Ormsby
V. Uichards
t'. Stone
V. Wood
V. Young
Baker's Trusts, In re
Balcli V. Smith
Baldwin v. Carter
V. Foster
Ball r. Ball
V. Bennett
I'. BuUard
Ballard v. Brummitt
V. Russell
V. Ward
Ballentine v. White
Ballin v. Dillage
Baltimore, &c. R. R. Co. r
Banbury Peerage Case
Bancroft v. Heirs
Bangor v. Redfield
Bank v. Durant
V. Scott
Bank of Virginia v. Craig
Banker v. Banker
Banks v. Conant
Bannister v. Bannister
V. Bull
Banton v. Campbell
Barbat v. Allen
Barbee v. Armstead
Barber v. Harris
V. Hibbard
V. Slade
V. State
Barbo v. Rider
Barclay v. Plant
v. lioberts
Section
155
268
84
324
150
181
437
398
407, 431
263
343
353
426
367
75
109
2!)y
176, 198
237, 241
246, 304
75
328
367
77
232
53
136
429
225
232
267 rt
187
143
381
18
252 o
335
89
193, 398
53
41
90
412
91
279
293
391
278
State
V. Waring 180, 221, 355
Bard v. Wood 372
Barham v. Earl of Clarendon 174
Barker v. Circle 150
V. Dayton 66
V. Dixie 53
V. Morrill 188
V. Wilson 405
Barkshire r. State 17
Barlow (-•. Bishop 163
.' Grant 240
Barnaby v. Barnaby
Barnard v. Ford
385, 407, 435
85
Barncord v. Kuha
Barnes r. Barnes
V. Brancli
V. Compton
1-. Ehrman
V. Harris
V. Hazleton
I'. Powers
V. Toye
t'. Trafton
V. Wyethe
Barnet v. Commonwealth
Barnett v. Leonard
Barney v. Parsons
i\ Saunders
V. Seeley
Barnum v. Barnum
1-. Frost
Barr v. Armstrong
Barrack v. M'CuUoch
Barrere v. Barrere
Barrett v. Churchill
V. Cocke
V. Seward
Barron v. Barron
Barrow v. Barrow
Barry v. Barry
V Clarke
Bartholemew v. Finneraore
Bartlett, Ex parte
V. Bartlett
V. Cowles
Bartley v. Richtmeyer
Barton v Beer
r. Morris
Barwick o. Rackley
Basford v. Peirson
Bass V. Cook
Bassett i'. Bassett
Batchelder v, Sargent
Bates V. Brockport Bank
V. Dandy
V. Elder
Battell V. Torrey
Battle V. Vick
Bauer v. Bauer
V. Boles
Bavington r. Clarke
Baxter r. Bush
V. Prickett
Bay r. Gunn
Bayard v. Hoffman
Bayler v. Commonwealth
Baylis v. Dineley
Bayne c. People
Bayspoole i\ Collins
Bazt'ley v. Forder
Beacli i\ Ranney
V. Wlnte
Beachcroft v. Beachcroft
Beagley v. Harris
Section
377, 398
249
319
388
94
75
272
316
413
370, 377
24
343
486
348
354
351
26
339
63
106
191, 248
361
351
394
162, 394
174
304
361 a
446
334
137, 198
313
261
168, 313
23
449, 450
150
335
24, 191
148
155
88
277
361a
304
145
377
419
424, 441
162
435
186
94
404
485
188
66, 237
77
187
281
313
XXX
TABLE OF CASES.
Section
Section
Beal V. Harmon
348
Bennett v. Allcott 248,249,256, 261, 272
V. Warren
150, 187
V. Byrne
305, 366
Beall V. Beall
228
V. Collins
435
Beam v. Fromberger
385
V. Davis
104, 406
Bean v. Morgan
486
V. Gillett
266
V. Smith
187, 377
V. Hanifin
372
Bear v. Hays
162
V. Mattingly
95
Bear's Administrator v.
Bear 120 a
V. Smith
20
Beard v. Dean
301, 306
V. Welder
398
V. Webb
163, 300
Benson v. Benson
107, 108
Beardsley v. Hotchkiss
402
V. Morgan
162
Beasley v. Harris
313
r. Keniington
252
V. Magrath
23!)
Bent V. Manning
411, 413
V. Watson
339, 352
Beutley v. Shreve
354
Beason v. State
398
Bently v. Simmons
120
Beatty v. Johnson
329
V. Terry
251
Beau r. Kiah
162
Benzigger i>. Miller
252 a, 268
Beaudry t\ Felcli
155
Bercy v. Lavretta
127
Beaufort v. Collier
124
Bergen v. Udall
271
Beaufort, Duke of, v. Berty 246, 316
Berkmeyer v. Kellerraan
389
Beaver v. Lane
s9
Berry v. Johnson
306
Beavers v. Brewster
343
V. Owens
277
Beazley v. Harris
384
V. Teel
162
Becher, Ex parte
320
Berthelmy v. Johnston
492
Becker v. Gibson
265
Besant, Re 218,
235
479, 480
Bedell v. Bedell
248, 249, 277
V. Wood 218,
480
481, 482
V. Constable
286, 320
Besondy, Re
237
239, 273
Bedford r. Burton
91, 97, 151
Bessee v. Pellochoux
222
t: M'Kowl
261
Best V. Crivens
435
Bedinger v. Wharton
446
Bethlem v. Koxbury
278 a
Beebe v. Easterbrook
272
Bethune v. Green
349
Beech v. Keep
189
Betsinger v. Chapman
29
Beecher v. Grouse
343
Bettle V. Wilson
473
Beedle v. State
388
Betton's Trust Estates, /«
re
88
Beeler v. BuUett
402
Belts V. Betts
154
r. Dunn
338
V. Carrls
435, 446
V. Young
404, 411, 413
Betz V. Mullin
331
Beidler v. Friedell
361
Beverson's Estate
26,27
Beiford r. Crane
187
Bevier v. Galloway
66
Belinger v. Shafer
351
Bevis 1-. Heflin
349,
385, 386
Bell, Ex parte
2V)0
Bickel I'. Erskine
407
V. Jasper
867
Bickcrstaff v. Marlin
388
V. Morrison
436
Bicknell v. Bicknell
444
Bellairs v. Bellairs
32
Bigelow V. Grannis
444
Bellamy, Re
87
V. Kinney
438
Bellefontaine &c. R. R.
Co. V. Snj'-
Bigaonette v. Paulet
41
der
429
Bill r. Cureton
186, 189
Beller v. Jones
251
V. Halenback
270
V. Marchant
408
V. McKinley
326
Bellows V. Rosenthal
165, 307
Bingham v. Barley
405
Bcllune v. Wallace
367
Binion v. Miller
389
Belt V. Ferguson
357
P.iiinington v. Wallis
279
Belton V. Briggs
435, 439
Birch r. Linton
405
('. Hodges
408
Birchall, In re
448
Bemis v. Bemiss
29
Bird ('. Davis
176
V. Gall
288
V. Pegg
449
Benadum i'. Pratt
219, 486
?;. Pegrum
107
Benliam v. Bishop
435
Birdsong (;. Birdsong
390
Benison v. Worsley
307
Birtwiiistler v. Vardill
227, 231
Benjamin ?>. Bartlett
75
Biscoe V. Kennedy
134
V. Benjamin
58
Bishop, In re
235
TABLE OF CASES.
XXXl
Section
Bishop V. Bishop
V. Blair
38
98
V. Shepherd
V. Wall
252 a
183
Bissell V. Bissell
26. 27
Bitter v. Rathman
169
Black i\ Black
485
V. Bryan
66, 324
V. Galavvay
t;. Hills
94
439
V. Walton
360
V. Whitall
270
Blackburn v. Crawford
29, 225
V. Maddy
Blacklow V. Laws
241
105
Blackman v. Bauraann
361
!'. Davis
449
Blackmore v. Brider
16
V. Shelby
V. State
348
398
Blades v. Free
212
Blaggre v. Moseley
Blake v. Blake
261
94, 322
V. Hall
148
V. Leigh
235, 246
V. Nelson
486
V. Pegram 322, 343,
372, 374, 376
V. Potter
381)
Blanchard v. Ilsley
Blanford v. Marlborough
261
182
Blankenship v. Stout 43!)
Blanser v. Diehl 361, 36'.)
Blayniire v. Hall 261
Bledsoe v. Britt 316
Blevins o. Buck 114
Bliss V. Sheldon 367
Blodget V. Brinsmaid 16
BlodwcU V. Edwards 281
Blouitield v. Eyre 381
Blood V. Harrington 449
Blount V. Bestland 81
Blue t). Marshall ' 348
Blum V. Harrison 402
Blumenberg v. Adams 486
Blunienthal v. Tannenholz 230
Blunt V. Melcher 420
Boatman's Savings Bank v. Collins 146
Bobo V. Birson 2(i8
V. Hansen 437
Bodine v. Killeen 168
Boggs V. Adger 363
Bohn V. Headley 270
Boisseau v. Boisseau 347
Boland V. Klink 148
Bold V. Hutchinson 180
Bolingbroke ?'. Kerr 86
Bomar v. MuUins 398
Bond, Ex parte 304, 307, 328
V. Armstrong 367
V. Dillard 295
V. Lockwood 237, 350, 367, 376, 388
Section
Bond V. Miller
267 a
Bones's Appeal
382
Bongard v. Cone
153
Bonham v. Badgley
16
Bonnell v. Holt
448
Bonneson v. Aiken
94
V. Bonnett
251
Bonney v. Reardin
56, 415
Bon sail's Case
347
Bonslaugh v, Bonslaugh
89
Boobier v. Boobier
269 a
Boody V. McKlnney 435
439, 441
Booker v. Worrill 187
377, 391
Bool i: Mix 405
409, 440
Boon V. Bowers
338
Boots V. Griffith
162
Borst V. Spelman
189, 385
Bort, Tn re
249
Borton v. Borton
399
Boss V. Gomber
154
Boston Bank v. Chamberlain
438
Bostwick, In re
338
Matter of
240
V. Atkins
439
Bosville V. Attorney-General
225
Botsford V. Wilson
58
Botham v. M'Intier
347
Boucknight v. Epting
114
Bounell v. Berryhill
332
Bourne v. Maybin 311, 313,
348, 372
Bowden v. Gray
81
Bowe V. Bowe
275
Bowen v. Sebree
124, 192
Bowers v. Bowers
13, 16
V. Van Winkle
38, 152
Bowles i\ Dixon
304
Bowman's Appeal
350
Bowman v. Kaufman
344
Bowser v. Bowser
187
Bowyer's Appeal
89
Boyce v. Bedale
231
V. Bovce
38,42
Boyd r. Blaisdell
260
V. Boyd
368
V. Gault
367
V. Porter
81
V. Sappington
241, 269
Boyden v. Bo\'den
435, 441
Boyers v. Newbanks
350
Boyett V. Hurst
353
Boy kin v. Ciples
112, 123
Boyle V. Brandon
261
Boynton v. Clay
450
r. Dyer
388
r. Hubbard
272
Bozeman v. Browning
402
Brackett v. Wait
94
Bradford v Bodfish
339
V. Dyer
372
r. Greenway
136
V. Johnson
169
XXXll
TABLE OF CASES.
Section
Bradley v. Hughes
107, 108
V. Pratt
404, 412, 414
V. State
48
Bradsliavv v. Beard
199
V. Bradshaw
239, 322
Bradstreet v. Baer
169
Braiden v. Mercer
377
Braly v. Rees
303
Brame v. McGee
174
Branch v. l)e Bose
386
Brand v. Abbott
353, 354
Brandon v. Brown
446
Brantley v. Wolf
439, 446
Bratney v. Curry
206
Bray v. Wheeler
268
Brayshaw v. Eaton
413
Brazier i'. Clark
368
Breadalbane i'. Chandos
182
Breadalbane's Case
26,27
Bredin v. Dwen
337
Breed v. Cran
308
V. Judd
411, 443
V. Pratt
308, 380
Breman v. Paasch
41
Brendle v. Herron
405
Brenham i\ Davidson
330, 361, 361 a
Brent v. Grace
372
Bressler v. Kent
94
Brevard v. Jones
116, 203, 425
Brewer v. Maurer
152
Briaster v. Compton
248, 251
Bridge v. Bridge
384
?'. Brown
240
Bridgman v. Bridgman
84
Briers v. Hackney
388
Briggs V. Briggs
48, 187
V. McCabe
274, 409
V. Morgan
20
V. Titus
151, 201
Brigliam v. Boston, &c. R. R. Co. 308
r. Fawcett 188
r. Wheeler 299
Briscoe v. Johnson 372
Bristor v. Bristor 118, 155
Bristow V. Eastman 424
Brittain v. Cannady 381
Britton v. Williams 407
Brock V. State 226
Brockbank v. Wiiitehaven Junction
R. R. Co.
77
Broderick v. Broderick
269
274
Bronson v. Southbury
429
Brookbank v. Kennard
187
Brooke v. Brooke
29,
106,
485
V. Clark
450
Brooker v. Scott
411
Brookficld (-•. Allen
67
V. Warren
237
Brooks V. Brooks
369,
381
V Dent
175
V. Everett
449
Section
Brooks V. Rayner 367
V. Shelton 155, 401
V. Tobin 367
Brow V. Brightman 237, 239
Brown v. Ackroyd 61
V. Belmard 226
V. Black 407
V. Bonner 183
V. Bookee 83
V. Brown 189, 198, 343, 399
V. Bulk 272
V. Caldwell 402, 432
V. Carter 188
V. Chad wick 388
I'. Cliancellor 169
V. Christie 361
V. Clark 105
V. Deloach 241
V. Dunham 350
V. Fifield 75
V. Gale 89
V. Hartford Ins. Co. 402
V. Johnson 124
V. Jones 175
V. Knapp 269, 272
V. Laselle 67
V. Lynch 230, 303
V. McCune 425
V. McDonald 270
r. Midgett 66
V. Mullin 338
V. Orr 58
V. Patton 66
V. Peck 218, 476
V. Probate Judge 366
V. Ramsay 252
V. Scott 270
V. Smith 238
V. Snell 295
V. Welsh 273
V. Westbrook 19
V. Wood 53
V. Yargan 337
Brown's Appeal 337
Browning v. Reane 18
Bruce v. Burke 21
V. Doolittle 388
V. Griscom 272
V. Wood 89
Bruner v. Wheaton 148
Brunnel v. Witherow 171
Brunson v. Brooks 366
Brunswick v. Litchfield 31
Brush V. Blancliard 273
Bryan v. Duncan 124
V. Jackson 241
V. Lyon 249
V. Rooks 200
Bryant v. Bryant 155
V. Craig 353
V. Manning 361
TABLE OF CASES.
XXXlll
Bryant v. Merrill
V. Richardson
Bryce v. Wynn
Bubbers v. Hardy
Buchanan v. Grimes
V. Lee
V. Turner
Bucher v. Ream
Buck V. Ashbrook
V. Buck
V. Fischer
V. Gibson
V. Goodrich
V. Lee
V. Wroten
Buckley v. Howard
V. Wells 153,
Buckmaster v. Buckmaster
Buckner v. Davis
Buckvvorth v. Buckworth
Bucksport V. Rockland
Buell V. Sherman
Buford V. Speed
Bulkley v. Noble
Bullard v. Briggs
Bullen, Ex parte
Bullock V. Babcock
V. Kniglit
BuUpin V. Clarke
Bumpus !'. Dotson
Bunn V. Winthrop
Burcher v. Ream
Burdeno r. Amperse
Burdett v. Cain
Burdick v. Babcock
Burge V. Burge
Burger v. Belsley
V. Frake
Burgess v. Burgess
Burghart v. Angerstein
V. Hall
Burk V. Piatt
V. Serrill
Burke v. Louisville R. R.
Burke, Matter of
Burkett v. Trowbridge
Burkliolder's Appeal
Burleigh v. CoflSn 83,
Burlen v. Griffin
Burley v. Russell
Burlingame v. Burlingarae
Barnard v. Haggis
Burnett v. Burnett
V. Bailing
V. Hawpe
Burnham v. Dalling
V. Holt
V. Seaverns
Burns v. Hill
V. Madigan
V. McGregor
Section
114
411
300
86
37-^
114
4()4
81
12ii
237
86
155
89
97
124
238
154, 168
390, 399
136
238
267 a
95
72
272
188
251
423
87
134
366
281
154
397
343
235
183
77
332
16
413
113
167
94
254
238
71
218
203, 425
133
425
267
424
326
372
129
388
253
423
424
255 rt
94
Section
Burr V. Wilson
267 a, 399
Burras c. Burras
448
Burris v. Page
447
Burritt v. Burritt
237
Burrow v. Gilbert
388
Burson's Appeal
114
Burton r. Pierpont
208
V. Sturgeon
221
V. Tunnell
324
Burwell v. Burwell
386
V. Corbin
450
Bush V. Bush
249, 349
V. Lindsey
70
V. Linthicum
408, 451
Bushnell v. Bp. Hill Colony 241
Bussom V. Forsyth
225, 227
Butler V. Breck
416
V. Buckingham
94
V. Freeman
246, 288
V. Gastril
16
V. Winona Mill Co.
473
Butterfield v. Ashley
260
V. Beal
90
V. Heath
175, 188, 380
V. Slam
273
V. Stanton
188, 380
Bybee v. Thorp
238, 388
Byers v. Des Moines, &c.
R.R. Co. 450
V. Thompson
270
Byrd v. Turpin
360
Byrne ?' N. Y. Central Railroad 428
V. Van Hoesen
290, 311
c.
Cade V. Davis
189
Cad well v. Sherman
252 a
CalYee v. Kelly
82
Caffey v. McMichael
389
Caffrey v. Darby
352
Cahill V. Cahill
94
V. Lee
97
V. Patterson
252 a
Calame v. Calame
221
Caldwell V. Drake
57
Calhoun v. Calhoun
374
Calkins v. Long
68
Call I'. Perkins
119
r. Ruffin
377
Calmady v. Calmady
208, 431
Calvert i'. Godfrey
357
Camden r. Mullen
169
Camelin v. Palmer Co.
72
Cameron v. Baker
279
V. Malcolm
24
Cammack v. Lewis
210, 436
Camp V. Pittman
300
V. Smith
120
Campan v. Shaw
295
Campbell v. Campbell
254, 267 a, 270
XXXIV
TABLE OF CASES.
Section
Section
Campbell v. Cooper
252, 252 a
Carter r. Carter \\A
, 218, 474
V. Galbreath 80
117, 189, 191
V. Grimshaw
270
V. Golden
3:J8
V. Howard
64
V. GuUatt
26
V. Lipsey
349
V. Ingleby
399
I'. Montgomery
111
V. Mackay
235, 334, 340
V. Towne
428
V. Quaokenbush
486
V. Wann
212, 438
V. Stakes
263, 424
Cartlidge v. CutlifE
173
V. Twemlow
53
Cartwright v. Bate
69
V. Wallace
203, 425
V. Cartwright
118
Campbell's Appeal
390
Carutliers v. Caruthers
399
Canajoharie v. Johnson
278 a
Carver v. Carver
448
Caiiby V. Porter
89
Cary v. Cary
386
Candy v. Coppock
59
Case V. Colter
194
Can 63' V. Bond
352
V. Phelps
187
V. Patton
61, 63, 68
Cassedy v. Casey
S86
Cannel v. Buckle
175, 176, 399
V. Jackson
86
Cannon v. Alsbury
29, 402
Gassier, Re
423
Canover i-. Hooper
252 a
Cassin v. Delany
76
Cantine v. Phillips
70
Castle V. Wilkinson
93
Cape V. Cape
105
Castlebury v. Maynard
222
Capel V. Powell
221
Caswell V. Hill
187
Capps IK Hickman
339
Cateret v. Paschal
87
V. Capeheart
341
Cathcart v. Robinson
187
Card V. Jaffray
177
Cathin v State
395
Cardress, In re
399
Catlin V. Haddox
404, 435
Carey v. Berkshire R.
77,78
Cato V. Gentry
349
V. Burruss
169
Caton V. Hideout
131
Carey's Estate, Re
457
Caughey v. Smith
260
Carl c. Wonder
75
Caujold V. Ferry
225
Carleton v. Lovejoy
82
Caulk V. Picon
7
Carlisle v. Town of Sheldon 78
Cave V. Roberts
205, 427
V. Tuttie
230, 329
Central R. R. v. Brimson
430
Carll V. Prince
20
Certwell v. Hoyt
261
Carlyle v. Carlyle
358
Chadbourne ?'. Rackliff
440
Carmicliael v. Hughes
288
Chad well v. Wheless
176
V. Wilson
338
Chamberlain v. Hazlewood
77
Carnahan v. Allderdice
404
Chambers v. Perry
82, 390
Carne v. Brice
106
V. Richardson
116
Carpenter v. Carpenter
140, 425, 446
V. 'Sallie
177
V. Leonard
151
Ch ambles v. Vick
345
V. Mc Bride
349
Champney, Ex parte
319
V. Mitchell
148
Chandler v. Commonwealth
395
V. Osborn
217
V. Deaton
263
V. Pridgen
426
V. Glover
435, 437
V. Schermerhorn
95
V. McKinney
404
Carr v. Askew
367
V. Morgan
137
V. Carr
82, 249
V. Simmons
380, 446
V. Clough
407, 409, 446
Chaney v. Smallwood
372
V. Taylor
83
Chanslor r. Chanslor
386, 388
Carrell r. Carrell
435
Cliapin V. Chapin
221
V. Potter
407, 440
V. Livermore
367
Carroll v. Blencow
486
Chapline v. Moore
388
V. Corbitt
377
Chapman v. Biggs
110
V. McCoy
273
V. Foster
148
Carrow v. Mowatt
394
V. Gray
217, 473
Carskadden v. McGhee
343
V. Hughes
413
Carson r. Murray
451
Chapman v. Tibbets
342, 352
V. Watts
252 a
v. Williams
145
Cart V. liees
415
Chappell V. Doe
448
Carter v. Anderson
248
V. Nunu'
61,07
TABLE OF CASES.
XXXV
Section
Secmos
Chappie V. Cooper 199, 212
413,415
Clark V. Garfield
353
Charles v. Charles
363
V. Goddard
420
V. Coker
124, 137
V. Killian
187
Chase v. Chase
221
V. Koch
328
V. Elkins
268
V. Leslie
412, 414
V. Hathaway
308,311
V. Montgomery
304, 339, 377
V. Smith
367 a
V. Kosenkrans
188, 380, 381
Chatterton v. Young
143
V. Thompson
398
Cheatham v. Hess
188, 380
V. Tompkins
352, 373
Cheek v. Waldrura
89
V. Turner
449
Cheely o. Clayton
221
V. Van Court
387, 445
Cheever v. Congdon
388
V. Van Surlay
330
V. Wilson
132, 133
V. Watson
450
Cheney v. Arnold
27
V. Way
369
V. Pierce
72, 452
V. Whitaker
370
Cherokee Lodge v. White
114
V. Wilkinson
367
Cherry v. Wallis
316
V. Wright
281
Cheshire v. Barrett
485, 441
Clark's Appeal
322
Chesley v. Chesley
53
Clarke, Re
340
Chester's, Lady, Case
299
V. Burke
61
Ciietwynd v. Chetwynd
249
r. Clay
372
Cheuvette v. Mason
154
1-. Darnell
319
Chew r. Chew
3'.)0
V. Jaques
110
Chew's Estate,
316
V. McGeihan
187, 377
Chicago, City of, v. Major
429
V. Windham
124
V. Ross
492
Clarke's Appeal
89, 422, 464
V. Starr
42'.1
Clausen v. La Franz
86
Child V. Sampson
150
Clawson v. Clawson
122
Childress v. Mann
07
V. Hutchinson
322
Childs ('. McChesney
155
Clay V. Brittingham
362
V. Smith
454
V. Clay
354
Chilton r. Cabiness
381
Clayton v. McKinnon
385
Chitwood V. Cromwell
343
Claxton V. Claxton
453
Chorpenning's Appeal
348, 386
Cleaveland v. Hopkins
180, 305
Ciiretien v. Husband
36
V. Mayo
263
Christensen v. Stumpf
170
Cleaver v. Kirk
272
Chubb V. Bradley
388
Cleghorn v. Janes
305
V. Stretch
172
Clemens r. Brillhart
267 rt
Chunot ('. Larson
72
Clemenstine v. Williamson 436
Churchill c. Dibben
106
Clement, Re
316, 319
City Council v. Van Roven
58
Clemment v. Mattison
18
City Savings Bank v. Whittle
407
(•. Sigur
317, 343
Clamorgan v. Lane
439
Clemments v. Crawford
225
Clan ton v. B urges
187, 377
Clerk ('. Laurie
134, 138
Clapp V. Greene
254
Clevestine's Appeal
124
v. Stoughton 83, 89, 424
Clifford L'. Laton
63
Clarges v. Albermarle
204,431
Clinton v. Goodburn
281
Claridge v. Crawford
449, 450
i\ Rowland
241
v- Evelyn
394
Clodfelter v. Bost
352
Clark, In re
337
Cloud V. Hamilton
252 a, 267 a
Re
235
Clough V. Bond
198
V. Bank of Missouri
118
V. Clough
399
V. Boyer
75, 251
Clowes V. Van Antwerp
348, 388
V. Burnside
350
Coatcs ?.'. Gerlach
189
V. Casley
343
V. Wilson
411
V. Cassidy
22
Cochran v. Kerney
398
V. Clark 40, 114, 193,
222, 241,
V. McBeath
174, 175
398
415, 423
Cochrane, In re
45
V. Cordis
303, 330
V. Van Sarlay
330
V. Field
23, 26
Cockayne, Ex parte
293
V. Fitch
267 «
Cocke V. Garrett
486
XXXVl
TABLE OF CASES.
Section
Cockerell v. Cockerell 301
Codrino'ton v. Codrington 221
Coe V. Wager 273
Coe's, In trust 240
Coffin V. Bramlitt 353
V. Morrill 92
V. Shaw 252 a
Cohani c. Coliani 30 1
Cohen v. Armstrong 433
V. Shyer 33
Cois Trust, In re 338
Colburn v. State 369, 377
Colby V. Lamson 168,312
Colcock V. Ferguson 404
Colcord V. Swan 95
Cole v. Cole 18, 21, 248
V Eaton 330, 843
V. Gourlay 361, 363
V. Pennoyer 4o9, 440
V. Seeley 56
V. Shurtleff 56
u. Superior Court 451
Coleman v. Uavies 388
V. HalloweU 415
V. Semmes 153
V. Smith 324
Coles V. Allen 372
r. Trecothick 179, 180
Collet V. Dickinson 158
Collins i\ Brook 450
V. Collins 23, 217, 220 b, 473
V. Hoxie 281
V. Mitchell 60
V. Vining 339
Colston V. Morris 246
Colter r. Mclntire 366
Coltman v. Hall 332
Col ton V. Goodson 316
Columbine v. Penhall 174
Colvin V. Currier 122
Coniegys v. Clarke 150
Commissioners of Poor v. Gantleft 237
Commonwealth v. Addicks 248
v. Briggs 248
V. Cox 367, 377
V. Fee 278 n
V. Feeney 50
V. Fletcher 154
V. Gamble 420
V. Green 395
I'. Hamilton 237
V. Hutchinson 378
V. Lewis 50
V. Lyncs 398
V. McAfee 44
V. Mead 395
V. M'Keagy 251
V. Munsey 50
V. Munson 25, 27, 29
V. Murray 251
r. Perry man 15
Section
Commonwealth j;. Pratt
50
V. Reed
333
V. Rhoads
329, 377
V. St. John's Asylum
251
V. Tryon
50
Compton V. Collinson
462
V. Compton
305
V. IMei'son
464
Cone V. Cone
220 ft
Conigland v. Smith
410
Conkey r. Dickinson
324, 373
Conklin r. Doul
165
V. Ogborn
437
V. Thompson
423
Conley v. Portland
492
Conlin v. Cantrell
143
Conn V. Coburn
414
V. Conn
237
Conn. Life Ins. Co. o. McCormick 150,
155
Connel v. Putnam 258
Connelly v. Weatherly 314
Conner «,'. Stanley 183 a
Connolly v. Hull 418
Conover v. Cooper 267 a
Conrad v. Abbott 64
V. Lane 425
V. LeBIanc 146
V. Shomo 158
V. Starr 423
Conroe v. Birdsall 404, 405, 425
C'onverse v. Converse 190, 390
Conway v. Reed 423
t'. Smith 151
Cook r. Baker 172
V. Bradley 265
V. Cook 22, 248, 452
V. Ligon 70
V. Rainey 374
V. Rogers 448
Cook's Case 305
(\)oke V. Beal 317
Cookson r. Toole 158
Coolidge ('. Paris 75
V. Smith 150, 157
Coombs V. Janvier 380
V. Queen's Proctor 462
V. Read 114
Cooney v. Woodburn 127
Cooper 11. Alger 162
V. Cooper 193, 398, 485
V. Ham 166, 168
V. Hepburn 361
V. MacDonald 107, 420
V. Maddox IOC), 405
I'. Martin 61, 237, 273
V. Rhodes 392
V. State 429
V. Summers 303
V. Simderland 361
V. Thornton 304
TABLE OF CASES.
XXXVll
Cooper V. Whitney
Cooper's Case
Copeland v. Cunningham
Copenrath v. Kienby
Copp V. Copp
Coppin V.
Corbett v. Poelnitz
V. Tottenham
Corbitt V. Carroll
Corcoran v. Allen
Cordova, Re
V. State
Corey v. Burton
V. Corey
Corgell V. Dunton
Corfass, In re
Corley V. Green
Corpe V. Overton
Corrie v. Corrie
Corrie's Case
Corrigan i'. Kiernan
Corwin v. Shoup
Cory V. Gertcken
Cotliran v. Lee
Cotteen v. Missing
Cotterell v. Homer
Cottle V. Tripp
Section
449
316
165
380
317
88
486
287, 318
366, 382
33;», 349
300, 305
278
407, 409, 446
267 a, 268
138
225
411
408. 414
248
897
299, 300, 311
435, 448
389
6, 63, 64
189
174
380
Section
226
145
366
253
391
414
Cotton r. Countess of Portsmouth 23
V. State S67
V. Wolf 318
Cottrel's Estate, In re 238, 239
Coughlin V. Ryan 486
Counts V. Bates 402
Courtright v. Courtright 237, 241
Coverdale r. Eastwood 178
Covington r. Leak ^5^
Cowan V. Anderson 34->
V. Mann 164, 16o
Cowan's Appeal 389
Cowden V. Pitts 90, 92, 239, 316
V. Wright 262
Co well V. Daggett 255
V. Wright 2o9
Cowles V. Cowles 20
V. Morgan 145
Cowley V. People 244
V. Robertson 5(
Cowton I". Wickersham 94
Cox V. Coombs 22
V. Hoffman 71, 72
V. Kitchin 67, 143, 149
;;. Morrow 1™
V. Simmons 448
V. Storts 240, 263
Cozzens v. Whitney l-j'^
Craig V. Craig 1*^-' «
V. Morris 446
Cramer v. Redford 81, 168
Crane v. Barnes 372
V. Baudoine 269
V. Brice 82
Crane v. Crane
V. Kelley
Cranston v. Sprague
Craiiz (•. Kruger
Crapster v. Griffith
Crawford v. Verry
Cray v. Mansfield
Creaze v. Hunter
Credle v. Carrawan
Crehore v. Crehore
Crenshaw v. Creek
V. Crenshaw
Cresinger v. Welch
Cricket r. Dolby
Croft V. Terrell
Crofts V. Middleton
Cromwell v. Benjamin
Cronise v. Clark
Crook V. Hill
V. Turpin
Crooks V. Crooks
V. Turpin
Cropsey v. McKinney
Crosby v. Crosby
V. Hurley
V. Merriam
Crose V. Rutledge
Cross V. Cross
V. Guthery
V. Noble
Crouse v. Morse
Crow V. Reed
Crowell's Appeal
Crozier v. Bryant
Crozier's Appeal
Cruger v. Douglas
V. Hayward
Crumb, Ex parte
Crummey v. Mills
Crump V. Gerock
V. McKay
Crutchfield's Case
Crymes, Ex parte
V. Day
Cuckson V. Winter
Culver's Appeal 3«U
Cummings v. Cummings 83, 220 b, 372
V. Powell 406, 409
Cummins v. Cummins 206, 338, 374
V. Friedman 189
V. Sharpe 143
Cunningham v. Cunningham 227, 373
V. Pool 3''4
V. Reardon'' 199
Curry v. Bott ' 120 a
V. Fulkinson 198
V. TurnbuU 27
Curtin v. Patton 404, 437, 445
Curtis V. Bailey B73, 377
V. Curtis 250, 272
I V. Engell 128
246
174
23
342, 451
373
435, 439, 446
281
317
134
65, 241
404
281
160
378, 385
326
32, 164
374
394
354
53
217
77
94
190, 391
372
373
77
206
190
238
316
407
372
77
305
316, 347
402
394
XXXVlll
TABLE (
Section
Curtis V. Hobart
350
V. McDougal
446
V. Rippon
301
Curton V. Moore
56
Gushing v. Blalce
420
V. Gushing
272
Gutter V. Seabury
260
Gutts V. Cutts
373
Cuyler v. Wayne
361
D.
Da Gunha, Gountess of, Goods of 329
Daggett V. Daggett 499
Dagley v. Tol terry 286, 304
Daine v. Wyckoff 261, 262
Dale V. Robinson 136
Daley v. Norwich & Worcester
R. R. Co. 428, 429
Dallam v. Walpole 137
Dallas V. Heard 26
Dalrymple v. Dalrymple 23, 26
D'Alton V. D'Alton 235
Dalton, In re 399
V. Gib 413
V. Jones 339
V. State 298
Da Marrell v. Walker 316, 317 a
Dana v. Coombs ' 438, 441
V. Stearns 435
Daniel v. Hill 230, 234
V. Newton 306
V. Sams 225
V. Whitman 82
Daniels v. Edwards 261
Dankel i\ Hunter 94
Dannelli v. Dannelli 226
Darby v. Calligan 148
V. Stribling 352
Dardier v. Chapman 86
Darkin v. Darkin 131
Darley v. Darloy 105, 238
Darling v. Noyes 241
Darlington v. Pulteny 90
Darlington's Appeal 155
Darnaby v. Darnaby 401
Daubenspeck i\ Biggs 183
Daubney v. Hughes 70, 71
Davenport v. Bishop 174
V. Olmstead 377
Davey v. Turner 94
Davidson, Matter of 240
V. Graves 175
V. Jolionnot 308, 330
V. Lanier 150
V. Young 439
Davies v. Baugh 397
V. Davies 399
V. Jenkins 159
V. Solomon 77
Section
Davis V. Caldwell
411, 412, 4i;
V. Combs
87i
V. Davis
90, 92, 18i
V. Dickson
37e.
V. Dinwoody
53
V. Dudley
405, 437, 439
c. Foy
104
V. Goodenough
269, 273
r. Harkness
338
V. Herrick
187
V. Hudson
303, 308
V. Jones
93
V. Kane
124
V. Krug
232
V. Locket
450
V. McCurdy
367
V. Prout
105
V. Turton
443
V. Williams
261
Davis's Appeal
82, 92, 347
Davison v. Atkinson
104
Dawes v. Howard
239
V. Rodier
166
Dawson, Ex parte
329
V. Dawson
205, 281
V. Holmes
405, 440, 446
V. Jay
334
V. Massey
384, 389
Day V. Burn ham
64
V. Croft
105
V. Everett
252
V. Messick
56
V. Oglesby
252 a
V. Padrone
83
Dayton c. Dusenbury
114
V. Walsh
167, 168
Deakin v. Lakin
159
Dean v. Bailey
154
V. Brown
111
V. Feeley
385
V. Richmond
222
V. Shelly
95
Deane v. Annis
241
Deare v. Souten
61
Deason v. Boyd
435
Deaver v. Bane
267 a
De Bathe v. Lord Fingal
299
Debenham v. Mellon
63
Dedliam v. Natick
239
Dcenis v. Deenis
64, 69, 485
Deery v. Gray
94
Deford v. Mercer
385
De Graff v. New York Central R. 429
Dc la Montanie v. Union Ins. Co. 352
Delano v. Blake 435
V. Blanchard 72, 82
De Mannville v. De Mannville 288
Demarest v. Wynkoop 94, 137
De Mazar i-. Pybus 300
Dcming v. Williams 189, 217, §85, 473
Den V. Demarest 95
TABLE OF CASES.
XXXIX
Section
Section
Den V. York
188
Doe V. Rusliam 186
, 189, 383
Dengate v. Gardiner
77
V. Weller
90
Dengenliart v Cracraft
370
V. Wilkins
87
Denison v. Denison
26, 27
Doker v. Hasler
53
Denneker, Re
303
Dollner r. Snow
58
Dennis v. Clark
258
i Domiuick v. Michael
402, 440
V. Crittenden
53
Donahoe v. Richards
260
Dennysville v. Trescott
267 a
Donegan v. Davis
207 a
Dent V. Bennett
389
Donne v. Hart
88, 131
Derocher v. Continental Mills 443
Donnington v. Mitchell
197
De Roo V. Foster
425
Donovan's Appeal
146
Descelles v. Kadmus
60
Donovan v. Needham
240
Desnoyer v. Jordan
114
Doolan v. Blake
110
Desribes v. Wilmer
287, 29y
Dorin v. Dorin
281
V. Winter
287
Dorman v. Ogbourne
303
De Thoren v. Attorney-General 2(5, 27
Dorrell v. Hastings
411
Devanbagli v. Devanbagli
20
Douglas's Appeal
372
De Voin v. Michigan Lumber Co. 461
Douglass V. Kessler
367
De Witte v. Palin
356
I'. State
388
Dexter v. Blanchard
241
V. Watson
444
V. Cranston .
361
Dove V. State
395
Diaper v. Anderson
372
Dow V. Eyster
61
Dibble v. Dibble
301, 311
V. Jewell
94
V. Jones
426
Dowling, In re
94
Dickens c. New York
Central
V. Feeley
338
R. R. Co.
78
V. Maguire
134
V. Winchester
252 a
Downin v. Sprecher
363
Dickenson v. Blisset
18
Downing v. Peabody
367
Dickerman v. Graves
53
V. Seymour
88
Dickerson v. Brown
26
Downs V. N. Y. Central R. R.
Co. 429
V. Dickerson
316
Doyle V. Kelley
58
Dickinson v. Talmage
252a, 267a
Drake v. Ramsey
439
Dicks i". (irisson
267 a
Draper's Case
87
Dickson v. Dickson
13
Draper v. Draper
398
Dierkes v. Hess
267 a, 268
V. Jackson
154
V. Philadelphia
37, 265
V. Joiner
364
Diettricii r. Heft
348
Dresel v. Jordan
60, 72
Dilk V. Keighley
408
Drew V. Drew
407
Dill V. Bowen
446
V. 6th Avenue
262
Dillage v. Greenough
176, 183
Druett V. Druett
279
Dillon V. Bowles
407
Drumm v. Keene
251
V. Cashell, Lady Mount 318
Drury v. Conner
350
Disbrow v. Henshaw
316
V. Drury
399
Ditchani r. Worrall
433
V. Scott
107
Ditson i\ Ditson
13
Drvbutter v. Bartholomews
90,91
Dix V. Grieson
267 a
Dul^lin & Wicklow R. v. Black 442
Dixon V. Dixon 110, 137,
140, 474, 476
Dubois ('. Jackson
114
i". Homer
376
Dii Bonlay v. Du Bonlay
280
V. Hiirrell
6!)
Dubose V. Wheddon
404, 414
V. Merritt
96, 405, 488
Duckworth v. Johnson
259, 262
V. Miller
128
Duddy V. Greshara
32
V. Ohnius
105
Duffield V. Cross
252
Dobson ('. Butler
221
Duke V State
303
Docker r. Somes
386
Dula V. Young
126
Dodd (• Benthal
96
DuU's Appeal
316
Dodge '■. Favor
267 a
Duniiiin v. Gwyne
251
!-•. Knowles
128, 144 a
Duniaresly v. Fishly
26,27
Dodson V. McAdams
269
Dumas v. Neal
165
Doe r. llassell
386
Dunl)ar v. I\Iize
145
V. Jackson
363 a
Duncan v. Cashin
162
V. Manning
186
V. Crook
292
xl
TABLE OF CASES.
Duncan v. Duncan
V. Pope
V. Koselle
Dunham v. Hatch
Dunifer v. Jecko
Dunn ('. Lancaster
Dunn's Appeal
Dunnalioe v. Williams
Dunsford v. Brown
Dunton i'. Brown 408,
Dunize v. Levett
Dupey V. VVclsford
Dupre V. Rein
Duquesne Bank's Appeal
Durant v. Ritchie
Durell V. Hayward
Duress v. Horneffer
Durliam v. Durham
Durnford v. Lane
Durrant v. Ricketts
Dutton i\ Dutton
Dye 0. Dye
V. Kerr
Dyer, Case of
Matter of
i\ Cornwall
Dygert v. Remerschneider
E.
Eager v. Grimwood 260,
Eagle Fire Ins. Co. v. Lent
Karnes v. Sweetser
Earl V. Crura
V. Dawes
i\ Dresser
Earle v. Feele
V. Reed
Early v. Owens
Eastland v. Burchell
Eaton V. Hill
EbersoU v. King
Eberts v. Eberts
Eberwine i'. State
Eckford V. Delvay
V Knox
Edgar (;. Castello
Edgarton v. Wolf
Edgerly v. Edgerly
('. Sliaw
pjdgcrton v. Jones
Edmonds's Appeal
Edmondson r. Machell
Eflrington v. Harper
Edwards, Ex parte
In re
V. Crame
1). Davenport
V. Davis
V. Freeman
Section
Section
26,27
Edwards v. Jones
189
279
V. ISchoenemau
94
162
V. State
50
299
V, Stevens
169
169
V. Taliafero
351
209
Edwards' Appeal
281
470
Eiclielberger v. Gross
367
72
Eiclielberger's Appeal
342
388
Eller V. CruU
66
409, 446
Eitle V. Walter
241
13
Ela V. Brand
237, 238, 273
449
Elderston, Re
247
217, 218
KIdred v. Drake
187
150 a
Eldridge v. Lippincott
298
192
V. Preble
120 a
199
Elgine's Case
318
164
Elijali V. Taylor
154
18
EHott V. Gower
136
399
r. Horn
416
158
Ellington ;;. Ellington
261
217
Elliot V. (Collier
415
172
Elliott V. Bently
162
269
V. Teal
202
301
Ellis V Alford
447
301,311
V. Ellis
414
357
V. Scott
372
188
V. Woods
124
Ellison, Matter of
363
V. Ellison
189
Ellsworth V. Hinds
90,92
V. Hopkins
192
261, 262
Elrod V. Lancaster
386
405
V. Myers
413
71
Elton V. Shephard
106
325
El well V. Martin
424
277
P^lzey V. Elzey
18
329
Emerson v. Spicer
290
414
Emery v. Gowing
261
414
V. Kenipton
252 rt
116
V. Neighbor
68
68
V. Vroman
361
424
V. Ware
93,94
79
Emmet v. Norton
62,68
388
Kminons v. Murray
409, 439
68
Eiiders c. Beck
75
385
England v. Downes
181
232
r. Garner
407
259
Engleliardt v. Yung
239
446
English V. Foxall
173
190
Ensign, Re
221
435
E[ii)erson v. Nugent
412, 418
155
Errat v. Barlow
240
44
Eslinger v. Eslinger
7
261
Espy V. Lake
326, 389
89
Essery v. Cowland
183 a
301
Essex ?'. Atkins
138
448
V. P2ssex
20
263
Estill r. Rogers
26
380
Etheririgton v. Parrott
63, 66, 69
241, 265
Eureka Co. v. Edwards
446
272
Evans v. Chester
57
TABLE OF CASES.
xli
Evans v. Covington
V. Evans
V Kiiorr
V. Nealis
V. Walton
Evansich v. Gulf R.
Evarts v. Nason
Evel^'ii V. Templar
Everett v. Sherfey
Everitt a. Everitt
Everson r. Carpenter
Evertson r. Evertson
Ewers v. Hutton
Ewing L\ Helm
Exchange Bank v. Watson
Eyre v. Shaftesbury, Countess of
Eystra v. Capelle
Section
187
46,2206
124
117
261
258
374, 376
186
252 a, 260
183
404, 437
384
68
120 a
174
313,
333, 390
153
F.
Fairland v. Percy 204
Falinouth Bridge Co. v. Tibbetts 95
Fanning c. Chadwick 382
Fant i-.^McGowan 319
Farber v. Farber 218
Fargo V. Goodspeed 137
Farisli v. Cook 447
Farmer i\ iSIcDonald 255
Farmers' Bank v. Brooke 187
V. Jenkins 155
I'. Long 188
Farmington t'. Jones 237
Farnham v. Pierce ' 237, 251, 256
Farnsworth v. Oliphant 373
I'. Richardson 251
Farr i'. Sherman 150
Farrance v. Viiey 838
Farrell v. Farrell 237 a
V. Led well 53
V. Patterson 114, 120 a
Farringtoii v. Wilson 303
Farweil i-. Steen 354, 376
Faucett v. Currier 150
Faulkner v. Davis 356
Favorite v. Booher 377
Fay V. Hiird 316, 319
V. Taylor 319
Fearon v. Aylesford 216
Fears v. Brooks 124, 136
Feeley, /ie 304
Feller v. Alden
Fellows V. Tann
Felton V. Long
Fendall v. Goldsmeid
Fen ton i\ Lord
Feran r. Rudolphson
Ferdinand Academy v. Bobb
Ferguson v. Bell
V. Brooks
382,
154
123
388
39
150
166
273
405, 439
75
Section
Ferguson i\ Reed
58
Fernslee v. Moyer
335
Fetrow v. Wiseman
404
Fettiplace v. Gorges
131
Fewell 0. Collins
77
Fiddler v. Higgins
357
Field V. Goldsby
315
V. Herrick
350
V. Lucas
343
V. Moore
399
V. Schieffelin
350
1-. Sowie
134
V. Terry
382
Fielder v. Hanyer
200
Fields V. Law
298
Filmer v. Lynn
63
Finch 1'. Finch
175
Finley v. Jowle
449
Finn r. Finn
55
Finnell v. O'Neal
354
Finney v. State
306
F'irebrace v. Firebrace
218
Firtii v. Denny
205
,206
F'ish V. Miller
389
Fisher v. Fisher
269
V. Mowbray
404
V. Payne
96
V. Williams
189
Fisk V. Lincoln
337
Fitch V. Ayer
124
V. Peckham
269
V. Kathbun
119
Fitch, Re
329
Fitler v. Fitler
237
Fitts V. Hall
424
Fitzgerald v. Chapman
221
Fitzgibbon v. Blake
361
Fitzliue r. Dennington
391
Fitzpatrick v. Beat
361
r. Fitzpatrick
21,50
Flanagan v. Flanagan
92
Flanders v. Abbey
146
F'lanigin c. Hamilton
157
Fleet V. Perrins
83
200
Fleming v. Shenandoah
162
F'lenner v. Flenner
179
Fletcher r. Ashley
181
V. Fletcher
345
353
V. People
244
V. Walker
352
Flexnor v. Dickerson
407
Flinn, Re
343,
346
Floyd V. Calvert
26
V. Johnston
385
Fogler V. Buck
385
Folger i-'. Heidel
339,
388
FoUit V Koetzow
279
Fonda v. Van Home
270, 285,
405
Forbes v. More
7
F'ord V. Miller
337
V. Monroe
262
xlii
TABLE OF CASES.
Ford V. Phillips
V. Stuart
Foreman v. Foreman
V. Marsh
V. Murray
Forman v. Marsh
Forsyth v. Hastings
Fortier, In re
Foster v. Alston
V. Bisland
V. Essex Bank
I'. Herr
V. Mott
i;. Waterman
V. Wilcox
Foteaux v. Lepage
Fountain v. Anderson
Fowler r. Chichester
V. Colt
V. Frisbie
V. Kell
V. Rice
V. Seaman
V. Shearer
Fowlker v. Baker
Fox, Ei parte
V. Burke
V. Davis
V. Doherty
V. Havvkes
V. Jones
V. Kerper
V. Minor
Frampton v. Frampton
Francis v. Fehnet 443
Francklyn ;•. Sprague 324
Frank r. Anderson 169
Frankford v. New Vineyard 267 a
Franklin v. Mooney 420
Franklin v. New Orleans, &c. R. 259
V. S. E. Railroad 262
Franks v. Martin 178, 180
Frasher v. State 12
Frazer /; Clifford 114
r. Zylies 361
Frazier r. Massey 402
V. Rowen 443
V. Steenrod 361
Frecking v. RoUand 167
Frederick v. Coxwell 93
V. Morse 367
Freeman r. Boland 424
V. Bridger 412, 413
V. Flood 129
V. Freeman 274
V. Hartman 181
V. Holmes 61
V. Robins 275
Freestone v. Butcher 62
Freiberg v. Branigan 168
French v. Currier 363, 354
Section
435
173, 174
448
357
338
448
435, 443
295
248, 333
377
263
124
305
232
95
338, 376
345
75
272
77
198
119, 120, 155
151
95
241
188
225
217,218
210
105, 189
155
349
338, 343
216
Section
French v. Davidson
339
r. Motley
188
V. Thompson
345
Freto i\ Brown
237
273
Freund v. Washburn
329
Frick V. St. Louis R.
258
Fridge v. State
388
404
Friend v. Thompson
41
237
Friermuth v. Friermuth
269
Frost I'. Winston
354
F'rostburg Association v
Hamill
138
Fry V. Derstler
77
i\ Fry
123
Fulgham v. State
44
Fuller ?'. Coe
348
V. Fuller
21
V. Naugatuck R. R.
Co.
78
V. Wing
348
370
Fullerton v. Jackson
290
Fulton r. Fulton
46
V. Smith
272
Fuqua v. Hunt
343
Furguson v. Bartlett
446
V. Bobo
426
Furlong v. Hyson
64
Furnian v. Van Sise
261
Furrilio v. Crowther
279
Fussell V. Dowding
221
Fynn, In re
246
G.
G. V. G.
20
Gacox V. Gaeox
270
Gaffiiey v. Hayden
443
Gage V. Dauchy
154
V. Reed
57,75
Gager v. Henry
365
Galin V. Derby
38
Gailey v. Crane
436
Gaines v Mining Co.
225
V. Poor
124
V. Spaun
299
Gainor v. Gainor
181
Gaither v. Williams
183 o
Galbraith v. Black
270
Gale V. Gale
174
V. Hayes
272
I'. Parrott
252, 267 a
V. Wells
349, 389
V. Worman
259
Gall V. Fryberger
158
Gamber i-. Gamber
120 a
Gan V. Marshall
401
Gandet v. Gandet
318
Gannard v. Eslava
189
Ganiiaway v. Tapley
384
Gans V. Williams
115, 116
Gard r. Neff
345
Gardner v. Baker
187
TABLE OF CASES.
xliii
Section
Sectiok
Gardner v. Gardner
137
Gilmore v. Rodgers
365
V. Heyer
281
Gilson ('. Spear
125
V. Hooper
114
V. Zimmerman
193
V. Sehooley
269
,270
Ginn r. Ginn
252 a
Garin v. Burton
404
Ginochia v. Porcella
208
Garlick i\ Strong
188
Girvin v. Hickman
376
Garner r. Board
443
Gishwiler v. Dodez
248
V. Gorden
248
, 322
Given v. Marr
221
Garrigus v. Ellis
381
Gladding v. FoUett
239
Garthshore v. Chalie
205
Glascott i\ Warner
303
Garver v. Miller
192
Glass V. Glass
21, 372
Garvin v. Williams
389
V. Warwick
143
Gary v. Cannon
353
Glanry v. Hestonville, &c. R.
259
V. James
267 a
Glaze V. Blake
81, 162
Gaston v. Frankura
134
Gleason v. Emerson
221
Gaters v. Maddeley
83
V. Gleason
38
Gates V. Bingham
329
Glen, Ex parte
18
V. Davenport
443
Glenn i-. Hill
61
Gault ('. Saffin
120 a
Glidden v. Taylor
154
Gazynski v. Colbum
79
Gloucester v. Page
305
Gee V. Gee
128
Glover, Ex parte
246
V. Scott
53
V. Alcott
119
Gelston v. Frazier
138
V. Glover
348
General Hospital v. Fairbanks
344
V. Ott
411
Genet c. Tallmadge
342
V. Proprietors of Drury Lane 80, 81
Genner r. Walker
411
412
Goddard i>. Wagner
238
George, In re
272
Godfrey v. Brooks
64, 164
V. High
450
Goff V. Rogers
188
V. Ransom
155
Golding V. Golding
186
V. Spencer
189
Goldsmith v. Russell
174
V. Thomas
440
Goldstein v. People
50
V. Van Home
261
Goleman v. Turner
843
Georgia R. R. Co. v. Wynn
78
Good V. Good
305
Gera r. Cianta
277
V. Harris
124, 127
Getts, Petition of
373
V. Harrison
434, 442
Geyer v. Branch Bank
124
Goodchild v. Foster
251
Gholston ('. Gliolston
44
Goodenough, In re
250, 251
Gibbs V. Harding
218
V. Fellows
95
V. Merrill
426
Goodman c Goodman
231
Gibson v. Commonwealth
53
V. Winter
363, 448
V. Gibson
77
Goodman's Trusts
231
V. Walker
138
Goodnow V. Empire Lumber C
0. 435
V. Way
110
V. Hill
146
Gifford ('. Kollock
252 a
Goodrich v. Bryant
217
Gilbert u. Guptil 353,
372
382
V. Goodrich
249
('. McEachea
338
V. Tracy
72
V. Schwenck
321
322
Goodright v. Straphan
90,91
V. Wetherell
272
Goodrum v. State
53
Gilchrist, Ex parte
166
Goodsell r. Myers 404,
435, 445
V. Cator
108
Goodson V. Goodson
386
Gilker '•. Brown
393
Goodwin v. Kelly
72, 127
Gill '• Read
237
V. Moore
449
V. Shelley
281
V. Thompson
21, 260
r. Woods
155
198
Goodyear v. Rumbaugh
120 a
Gillespie i\ Bailey
437
439
Gordon v Dix
265
V. Hnrlinson
124
V. Gilfoil
392
V. Worford
94
V. Gordon
281
Gillet r. Camp
273
V. Haywood
94
V. Stanley
405
V. Potter
241
Gilliiit r. Gilliat
287
299
Gore V. Carl
150
Gilman v. Andrus
61,64
V. Gibson
18
xliv
TABLE OF CASES.
Section
Section
Gore V. Knight
132
Griffith V. Teetgen
261
Gorman v. State
44,
244
Grigsby v. Breckenridge
208
V. Wood
81,
118
Griner v. Butler
95
Gornall's Case
306
Grinnell v. Wells
258, 261
Goshen v. Richmond
19,31
Grist V. Forehand
329
Gosman v. Cruger
58,
146
Gronfier v. Puymirol
308
Goss V. Cahill
154
Gross V. Reddy
119
Gotts i-. Clark
241
Grove v. Nevill
425
Gould V. Carlton
81
Grover v. Alcott
162
V. Hill
124
Grubb's Appeal
280
Goulder v. Camra
105
Grunhart v. Kosenstein
237
Goulding v. Davidson
58
Grute !'. Locroft
88
Grace v. Hale
409
411
Guernsey, Ex parte
352, 361
Graham v. Bennett
226
Guffin V. 1st Nat'l Bank
270, 369
V. Davidson
322
Guild v. Cranston
450
V. Dickinson
90,92
Guisliaber )•. Hairman
124
V. Londonderry
208
Gulf R. V. Donahoo
89
Grain v. Shipman
190
Gulick V. Grover
72
Grand Rapids R. v. Showers
260
Gunter i\ Astor
262
Grant v. Fox
353
V. Williams
150
V. Green
44
Gunther, Re
329
I'. Whittaker
316
V. State
824
V. Willey
46
Guptil V. Home
73
Grantman v. Thrall
450
Gurlcy v. Gurley
205
Grapengather v. Fejervary
143
Guthrie v. Morris
414
Gravett i-. Malone
388
Guttman v. Scannell
166
Gray v. Crockett
157
Guy u. Du Uprey
851
V. Crook
112
Guynn i\ McCauley
255
V. Dryden
89
Gwaltney v. Canon
337
V. Durland
261
Gwin V. Vanzant
317
V. Otis
72
V. Tliacker
57,75
Green, Ex parte
240
H.
V. Green
181
446
H. V. P.
20
V. Greenbank
424
446
H. V. W.
216
V. Hudson R. R. Co.
78
Haase v. Roerschild
238
V. Johnson
370
Haddock ;•. Planter's Bank
853
V. Rountree
353
Hafcr V. Hafer
183
V. State
12
Hager v. Hager
270
V. Weever
211
Hagerty v. Powers
263
V. Wilding
401
Hagy V. Avery
343
Greenfield Bank v. Crofts
266
Haig c. Swiney
106
Greening v. Fox
354
Hailey v. Boyd
376
Greenly i\ Daniels
366
Haine v. Tarrant
414
Greer.man v. Greenman
187
189
Haines v. Corliss
119
GreenwcU v. Greenwell
238
V. Oatman
450
Greenwood v. Greenwood
261
Hair v. Hair
37
Greer v. Greer
192
Haitt V. Williams
270
Gregg V. Gregg
372
Hale V. Christy
160
Gregley v. Jackson
225
I'. Plummer
188
Gregory v. Orr
388
Haley v. Bannister
239
V. Winston
181
V. Bond
388
Gridley r. Watson
187
V. L.'iy
304
GriflBn v. Banks
217
Hall V. Butterfield
412, 414 a
V. Reynolds
75
V. Carmichael
181
V. Sarsfield
304
V. Cone
388
Griflfis V. Younger
440
442
V. Creswell
120
Griffith V. Bird
374
V. Eaton
57
V. Griffith
112
124
V. Gerrish
435
V. Parks
367
V. Hall 85, 235, 268, 839
V. Schwenderman
405
I'. Hardy
93
TABLE OF CASES.
xlv
Section
Section
Hall V. Hollander
258, 260
Harner v. Dipple
404
V. Jones
322, 43!)
Harper v. Lemon
241
V. Simmons
439
V. Lufkin
261
V. Storer
305
Harrall, Re
208
V. Tay
152
Harrer v. Wallner
96
t>. Weir
61
Harvey v. Ashley
399
Hallenbec'k v. Berksliire R. R.
Co. 78
V. Hall
394
Ham V. Ham
301
Harrington v. Banfield
277
Hamaker v. Hamakcr
19
V. Cole
238
Hamilton v. Bishop 112
123, 124
V. Giles
81
V. Douglas
168
Harris v. Berry
349
Hamilton, Duke of, v. Hamilton 27, 191
V. Butler
261
V. Hector
218
V. Carstarphen
389
V. Lord iVIohun
388
V. Currier
269
V. Moore
316
V. Harris
324, 347
V. Probate Court
807
V. Lee
61
Hamilton's Appeal
337
V. Morris
66
Hamley i;. Gilbert
238
V. Mott
133
Hamlin v. Atkinson
388
V. Wall
433
V. Jones
90,92
V. Williams
150
V. Stevenson
391
Harrison v. Adcock
440
Hammersley v. De Biel 175,
177, 179
V. Bradley
384
Hammond v. Corbett
254
V. Cage
172
V. Renfrew
120
V. Fane
411, 412, 413
Hamncr v. Macon
367
V. Trader
57
Hanmctt's Appeal
385
Harrod v. Harrod
18
Hampden, Case of
288
Harshaw v. Merryraan
64
V. Troy
267 a
Harsliberger v. Alger
136, 144, 218
Hampstead v. Plaistow
24
Hart, In re
299
Hampton, Case of
348
V. Czapski
329
V. State
53
V. Goldsmith
144 a
Hancock v. Merrick
66, 237
V. Gray
317
V. Peaty
18
i;. Grigsby
146
Hancocks v. Lablanche
159
V. Hart
269
Hands v. Slaney
394,411
Harten v. Gibson
281
Handy v. Foley
75
Hartfield v. Roper
258, 429
Hanks v. Deal
43>
Hartford Co. v. Hamilton
262
Hanly v. Downing
143
Hartley v. Hurle
106
Hannen v. Ewall
350
V. Tribber
281
Hanrick v. Patrick
7
V. Wliarton
433
Hanson v Millett
116
Hartness v. Thompson
402
Hantz ('. Sealey
27
Harttman v. Tegart
66
Harbiuan v. Kendall
447
Hartwell v. Rice
272
Hardcnbiirgh v. Lakin
94
Harvard College v. Head
221
Hardie c. Grant
66
Harvey, Re
136 a
Hardin r. Heltory
318
V. Ashley
402
Hardnvj: r. Harding
119, 249
V. Harvey
103, 376
r. Lnrned " 347, 350
353, 300
!'. Lane
249
Hardvvirk r. Paulet
269
r. Norton
64
V. Wells
303
Ilarwood v. Lowell
78
Hardy '•. Bank
352 n
Hasheagan v. Specker
143
V. Walker
402
Haskell v. Jewell
335
V. Waters
404, 406
Haskit V. Elliott
155
Harford r. Morris
23, 367
Hassard v. Rowe
851
Hargrave v. Hargrave
225, 337
Hastie's Trusts
281
Harland, Case of
238
Hastings v. Dollarhide
406, 435
Harland, /n re
375
Haswell v. Hill
118
Harley r. Harley
272
Hatch V. Gray
187
Harmor v. Killing
445
V. Hatch
887, 388
Harnden v. Gould
166
Hause v. Gilger
120
Harney v. Owen
443
Hausenstein v. KuU
343
xlvi
TABLE OF CASES.
Hauser v. Saine
Havens v. Patterson
Hawbecker v. Hawbecker
Hawkes v. Hubback
Hawkins v. Craig
V. Hyde
V. Jones
I'. Providence R.
V. Watts
Hawkins' Appeal
Hawkswortli v. Hawksworth
Hawley, Re
V. Bradford
Haws V. Clark
Hayden v. Ivey
V. Stone
Hayes v. Parker
V. Watts
Haygood r. Harris
V. McKoon
Haymond v. Jones
V. Lee
Haynes v. Bennett
V. Haynes
Haynes (Adm'r) v. Waggoner
Hays V. Henry
V. McConnell
I'. Seward
Hayward v. Ellis
Haywood i\ Shreve
Hazard, In re
Hiizelbaker v. Goodfellow
Head v. Briscoe
V. Halford
V. Head
Headen i\ Kosher
Headman v. Rose
Heard, Ex parte
V. Daniel
V. Stamford
Hearst v. Sybert
Heath r. Mahoney
V. West
Heather, Re
Heathey (;. Thomas
Heathnian ?'. Hall
Hebblethwaite v. Hepworth
Heburn v. Warner
Heck V. Clippenger
Hedger v. Tatrg
Heffer v. Heffer
Heineman's Appeal
Heirn v. McCaughan
Helps ?•. Clayton
Heiiimcnway r. Towner
Heiiipiiill V. Lewis
Hemstead v. Gas Light Co.
Hendee r. Cleaveland
Hcnilershot v. Henry
Henderson >\ Coover
Hendry v. Hurst
Section
Section
273
Hennesy v. Stewart
252 a
363
Henning v. Harrison
98
226
Henry v. Henry
179
105, 107
V. Penington
384
82
V. Root 426, 434,
441, 446
269
Henson v. Waltz
248, 250
268, 277
Herbert y. Torball
397
81,82
Herdman v. Pace
94
238
Hermance, Re
306
388
Herndon v. Lancaster
361
235
Herrick v. Musgrove
94
290
V. Pritcher
252 a
95
V. Wickham
174
361
Herring v. Goodson
303
126
Herschfeldt v. George
188
374
Htrvey v. Moseley
260
426
Hcsketh v. Growing
279
30
Hetrick v. Hetrick
197
128
Hewson, In re
208
377
Hey ward v. Brooks
269
173
V. Cuthber*"
239
180
Hiatt V. Williams
274
405, 440
Hickman's Appeal
388
270
Hierstand v. Kuns
393
237
Higgins V. McClure
888
205
Higii r. Snedicor
388
273
Hightower v. Maul
348
254, 269
Hiibish V. Hilbish
269
374, 386
Hileman v. Hileman
188
158
Hill V. Anderson
407, 437
363
V. Bugg
155
114, 154
i;. Chambers 114,116,120 a
76
V. Childress
234
186
V. Clark
399 a
225
V. Crook
235
131
V. Edmonds
88
39
V. Filkin
236
329
V. Foley
82
348
I'. Good
16
66, 197
V. Goodrich
197
259
V. Hill 90, 249,
332, 333
425
V. Johnston
384
438, 446
V. Mclntire
383
332
I'. Saunders
89,90
137
V. Sewald
72
124
V. State
53
26, 29
V. West
95
146
Hillebrand o. Nibbelink
276
124
Hillsborough v. Deering
280
261
Hillyer v. Bennett
446
24
Hincks v. Allen
178
304
Hindley v. Westmeath
66,68
77
Hinds, Estate of
84
411
Hinds' Lessee v. Longwood
270
225
Hinely v. iMargaritz
445
373
Hines v. Mullins 280
308, 343
79
V. State
329
386
Hinney v. Phillips
155
157
Hinton v. Hudson
69
369
Hitchens v. Eardley
225
379
Hitner's Appeal
217
TABLE OP CASES.
xlvii
Section
Hix V. Gosling 143
Hoare v. Harris 343, 385
Hobb v. Harlan 388
Hobensack v. Hallman 118
Hobson !'. FuUerton 261
Hocker v. Woods 322, 377
Hodgen v. Hodgea 109
Hodges, In re 339
V. Cobb 154
V. Hunt 437
Hodgkins v. Rockport 235
Hodgkinson v. Fletcher 68
Hodgson V. Macy 272
Hodson V. Davis 143
Hoffman v. Ward 37
Hoit V. Underhill 437, 445
Holbrook v. Brooks 347
Holcomb V. Meadville Savings Bank 116
Holcombe v. Holcombe 375
Holden v. Cope 68
V. Scanlin 303
Hole V. Robbins 232
Holland, Ex parte 159
V. Moon 94
V. State 372
Holley V. Chamberlain 306
Hollidav V. McMillan 114
Hollifieid V. Wilkinson 189
Rollings worth i'. Swedenborg 252, 254,
267 a, 268
Hollingsworth's Appeal 300
HoUis (-•. Fran9ois 190
HoUoway v. Headington 189
V. Millard 186
Holly V. Flournoy 119
Holmes v. Blogg 408, 437, 441
y. Field 300,311
V. Holmes 26, 27, 29, 166, 198, 222
V. Penney 189 a
V. Thorpe 94
Holmes' Appeal 357
Holt V. Holt 407
V. O'Brien 64, 66
V. Sindrej' 285
V. Ward 402
Holtz V Dick 75
Hokznian v. Castleman 238
Holyoke v. Clark 370
I'. Haskins 334
Homer v. Thwing 424
Homoeopathic Life Ins. Co. v, Mar-
shall 150
Honnett v. Honnett 23
Hood V. Bridport 351
V. Perry 318, 326
Hook r. Donaldson 405
Hooker v. Bancroft 370
Hooks V. Lee 17, 177
V. Smith 449
Hooper v. Eyles 347
V. Haskell 77
Hooper v. Hooper
V. Howell
Hoover v. Heim
Hope V. Carnegie
V. Hope
Hopkins, Ex parte
V. Carey
V. Myall
V. Virgin
Hopper V. McWhorter
Section
311, 388
202
259, 262
76
216, 303
245, 246, 250
82
138
429
82
Hornbeck v. Building Association 175
Home V. Freeman 261
Horner v. Wheelwright 134, 243, 250
Hornsby v. Lee 89, 157, 169
Horsford, Re 303
Hort r. Sorrell 125, 231
Horton r. Byles 77, 141
V. Horton 377
V. McCoy 357
Horton's Appeal 337
Hosford, Re 303
Hoskins v. Miller 82, 150
V. Wilson 348
Hossfeldt V. Dill 168
Hosson's Succession 232
Hoste V. Pratt 238
Hotchkiss V. Gretna 464
Houghton V. Houghton 271
Houliston V. Smyth 48, 66, 72, 111
House V. House 269
Houser v Reynolds 439
Houston V. Cooper 408
Hoverson v. Noker 263
Hovey v. Harmon 303, 311, 317
Howard v. Bryant 155
V. Digby 160, 254, 291, 292
V. Hooker 357
V. Menifee 112, 208, 432
V. Simpkins 404
V. Stephens 169, 317
V. Whetstone 66, 112
V. Windham Co. Savings Bank 386
Howarth, In re 356
Howe ?•. Chesley 158
V. Colby 401
V. Lemon 177
r. Peabody 368
Howe's Estate 26, 31
Howell V. Cobb 377
V. Maine 83, 152
V. Tyler 281
V. Williamson 349
Howlett V. Haswell 424
Ilowman r. Corrie 154
Hoyle V. Stowe 438
Hoyt V. Casey 413
I'. Hellen 290
V. Sprague 329, 330, 349, 440
V. Swar 404
V. Underhill 436
V. White 162, 294
xlviii
TABLE 0:F cases.
Section
Hoyt i;. Wilkinson 404, 409
Hoyt's Case 299
Hoxie V. Lincoln 443
Hubbard, Re 303
V. Bugbee 59, 124
V. Cummings 441
V. Lee 39
V. Ogden 274
Hubbs V. Rath 87
Huchting v. Engel 423
Hudson V. Helmes 348
V. Jones 405
V. Lutz 273
Huey's Appeal 393
Huff V. Price 72, 90, 131
V. Walker 350
Buffer's Appeal 375
Huger V. Huger 357
Hughes V. Coleman 175
V. Gallans 425
V. Hughes 23V)
V. Knowlton 281
V. McFie 428
V. Peters 272
V. Kingstaff 373
V. Science 289
V. Stokes 127
V. Watson 440
V. Wells 140
Hughes' Appeal 350
Huguenin v. Baseley 389
Hulett V. Julon 398
Hull V. Sullivan 155
Hulme V. Tenant 105, 134
Hultz V. Gibbes 66
Hume V. Hord 25
V. Hume 389
Humes v. Scruggs 119
Humphery v. Richards 104, 132
Humpiirey v. Buisson 352
V. Douglass 895, 423
Humphreys v. Royce 57
Humphries v. Davis 232
V. Harrison 99
Hunt V. Booth 112, 124
V. Johnson 189
V. Massey 433
V. Peake 433
V. State 367
V. Thompson 221
V. White 376
V. Winfield 78
Hunt's Appeal 26, 176
Hunter ?'. Atkins 388
V. Bryant 173, 176
V. Dashman 351
V. Duvall 148
V. Macrea 333
Huntley v. Whitner 58, 148
Huntoon v. Hazleton 260
V. Thompson 413
Section
Hurdle v. Leath
353
Husband v. Husband
237
Hussey v. Roundtree
337, 413
V. Ryan
262
Huston V. Cantrill
188
V. Cone
198
Hutchcraft v. Shrout
367
Hutcheson v. Peck
41
Hutchins v. Cole
116, 152
V. Dresser
343
V. Johnson
343
V. Kimmell
20,29
Hutchinson v. Hutchinson
337
Huth V. Carondolet R.
435, 437
Hutson V. Townsend
249
Hutton V. Duey
191
V. Harper
29
V. Hutton
217
V. Williams 313
372, 374
Huyler v. Atwcod
148, 150
Hyatt 11. Adams
77,78
Hyde v. Hyde
21
V. Johnson
433
V. Stone
285
V. Warren
95
Hylton V. Hylton
387, 388
Hyman v. Cain
413
Hynes, Re
290
V. McDermott
I.
Ihl V. R. Street R.
26,29
259
Ilchester, Earl of, Case
833
Ilchester, Ex parte
287
Illinois Land Co. v. Bonner
225, 402,
405, 437
Indiana v. Kingsbury
350
Indiana R. i\ Brittingham
350
Indianapolis v. Kingsbury
350
Indianapolis Chair Co. v. Wilcox 407,
409, 462
IngersoU v. Harrison
380
V. Mangam
451
Ingham v. Brickerdike
817 a
Inglefield i\ Coglan
105
Ingram v. Souton
232
Inman v. Inman
425, 439
Insole, In re
222
Insurance Co. v. Bangs
448
V. Nelson
193
Irvine v. Irvine 403
435, 439
Irwin V. Dearman
261, 262
Isaacs V. Taylor 305
31^, 321
Islian V. Gibbons
230
Jack's Appeal
Jackson, Re '
353
366
TABLE OF CASES.
xlix
Section
439, 44U
440
225
298
94
334
110
118
209
155, 272, 277, 351
75
112, 125
88
270
842
89
439
187
58, 95
23
105
155
192
160
326
402
390
472
42
311, 3G7
305
V. Methodist Episcopal Church
132, 136, 138, 139
Jaques v. Sax 408
Jainian v. Woolston 163
Jarrett v. State 298, 306, 376
Jassoy V. Delius 162, 165, 166
Jaynes v. Jaynes 41
Jefford V. Ringgold 402
Jeffreys i'. Vanteswartsworth 334
Jeiiison v. Graves 267 a, 270
Jenkins v. Flinn 118, 165, 168
V. Jenkins 403
r. Kemis 174
V. Mitchell 272
V. Tucker 199
V. Walter 352
Jenks V. Langdon 213
Jenkyn v. Vaughan 186
Jenne v. Marble 191
Jenner v. Turner 32
Jenness v. Alden 268
V. Jenness 421
V. Robinson 203
Jenney v. Emerson 237, 252 a
V. Gray 89
Jennings v. Davis 189
0. Jennings 186
V. Looke 847
V. Rundall 424
Jervoise v. Silk 238
Jackson v. Burchin
V. Carpenter
V. Combs
V. De Waltz
V. Gilchrist
V. Hankey
V. Ilobhouse
V. Hubbard
V. Innes
V. Jackson
V. Kirby
V. McAliley
V. McConnell
r. Peek
V. Sears
V. SufEern
V. Todd
V. Town
V. Vanderheyden
V. Winne
Jacobs V. Amyatt
V. Hesler
V. Miller
Jacobson v. Williams
Jacox V. Jacox
Jaffrey v. Fretain
Jagers i'. Jagers
James r. Allen
V. James
Jamison v. Crosby
Janes v. Clickhorn
Section
Jeston V. Key 182
Jewell V. Jewell 28
Jewett, Ex parte 356
V. Ree 348
Jewsbury v. Newbold 63, 64
Jodrell V. Jodrell 110, 160
John V. Bradbury 324
r. Chandler 377
V. Emmert
V. Gill
Johnson v. Avery
V. Ballard
V. Beattie
I'. Carter
V. Gallagher
V, Gibson
V. Johnson
V. Kirkwood
V. Lines
V. Lusk
V. McCuUough
V. Metzger
V. Payne
j;. Pye
V. Rockwell
V. Runyon
V. Silsbee
V. Snow
V. State
V. Stone
V. Terry
V. Vail
Johnston v. Furnier
V. Johnston
I'. Jones
V. Marks
V. Sumner
Johnston's Case
Johnstone v. Beattie
i". Coleman
i\ Lumb
.Toliffe V. Higgins
Jolly V. Rees
Jones, Ex parte
Jones, Re
V. ^tna Ins. Co.
V. Beverly
V. Billstein
V. Blanton
V. Brandt
V. Brewer
I'. Buckley
V. Butler
V. Carter
V. Claghorn
V. Clifton
V. Crosthwaite
r. Darnall
r. Fellows
V. Foxall
233, 278, 283
188
362
265
299
350
134, 135, 143. 158,
163, 165
267 a, 268
36, 37, 84, 107, 108
219
413
193
367
316
89
424
402
120 a, 152
268
155
244, 398
266
251
154
439
190
94
412, 413
64
322
299
338
107
343
63
53
186, 190, 278
112
382, 386
363
367
118
344, 350, 419
252
399, 437
90
232
187, 190
143
248
372
354
TABLE OF CASES.
Se
CTION
Section
Jones V. Glass
324
Keller c. Mayer
154
V. Graham Transportation
Co.
402
V. Phillips
63
V. HoUopeter
350
Kellog V. Adams
270
V. Jones
8,
407
433
V. Phillips
65
V. Parker
338
V. Robinson
72
V. Patterson
89
107
Kelly V. Davis
241
V. Perry
330
V. Drew
119, 162
V. Phoenix Bank
435
439
V. Kelly
45,46
V. Plumnier
90,92
172
V. McGrath
181
V. Potter
193
V. Owen
39
V. Reid
162
V. Small
53
V. Sharp
448
Kemp V. Cook
407, 426
V. Steele
449
V. Downham
68
V. Stockett
235,
238
313
Kempe i^. Pintard
90,92
V. Tevis
260
Kenipson v. Ashall
404
V. Waite
216
Kenan v. Hall
354
V. Wai-d
313
Kendall v. Kendall
238
Jones's Appeal
174
322
V. Lawrence
405
Jordan v. Clark
221
V. Miller
347
V. Donahue
343
Kendrick v. Wilkinson
867
V. Jones
93
Kennard v. Adams
348
Joyce V. McAvoy
217
V. Burton
262
Judge of Probate v. Cook
77
Kennedy v. Doyle
407
V. Hinds
303
V. Gaines
361
Judkins v. Walker
443
V. Shea
261
Judson i". Blanchard
450
V. Ten Broeck
94
Junction Railroad Co. v.
Harris
89
Kenney ?'. Good
120 a
Justices V. Willis
376
V. Udall
Kenningham v. M'Laughlin
Kenniston v. Leighton
Kenrick v. Wood
390
255
361
110
K.
.
Kensington v. DoUond
Kent V. Dunham
105
272
Kahn v. Israelson
306
316
V. State
30
Kane, Matter of
238,
304,
305
Kenton Ins. Co. v. McClellan
148
Kantrowitz w. Pranther
143
Kenvvorthy v. Sawyer
146
Karney v. Vale
338
Kenyon v. Farris
61
Karr r. Karr
353
Keogh ?'. Cathcart
134
V. Parks
258
Kernoodler v. Caldwell
241
Kauffelt V. Moderweli
252 a
Kerr v. Bell
446
Kaufman v. Whitney
187
188
V. Forgue
429
Kavanaugh v. Janesville
77, 78
Kershaw v. Kershaw
277
Kay V. Crook
178
180
Kerwin v. Wright
267 rt
V. Whittaker
90,91
Kesner v. Trigg
190
Kay's Case
238
Kettletus v. Gardner 306,
316, 339
Kaye, In re
306
Kevan v. Crawford
174
V. Crawford
270
V. Waller
299, 322
Keane v. Boycott
260,
401,
402
Keyes v. Keyes
23
Kearney v. i)enn
225
Kibbie v. Williams
89
Keating v. Condon
210
Kidd V. Guibar
372
Keaton v. Davis
241
V. Montague
114
Keble, Ex parte
240
Kidwell V. Kirkpatrick
119
Kee V. Vasser
125
V. State
313
Keecli V. Keech
38
Kilburn v. Fisk
308
Keeler v. Fassett
255
Kilgore v. Jordan
426
V. Guier
318
Kilkrease v. Shelby
419
Kehr v. Smith
187
Killick, Ex parte
105
Keistcr v. Howe
86
Kimball v. Fiske
311, 361
Keith V. Miles
374
V. Keyes 68, 69,
237, 353
Kekewich v. Manning
180
V. Perkins
374
Kelchnor v. Forney
388
Kimmel v. Kimmel
316
TABLE OF CASES.
li
Kine v. Barbour
Se
CTION
40a
King V. Bell
303,
308
324
V. Cotton
357
V. Davis
277
281
V. Foxwell
37
V. Gottschalk
118
V. Hodnett
278
V. Hughes
315
372
V. Little
89
V. Luffee
225
V. Rea
150
V. Rotherfield Greys
420
V. Seals
345
V. Thompson
77
164
Kingsley v. Broward
281
Kingsman v. Kingsman
97
V. Perkins
406
Kinkhead, lie
169
Kinnard v. Daniel
177
lyo
Kinnen v. Maxwell
408
44G
Kinney v. Laughenour
2G1
V. Showdy
402
Kinsey v. State
238
Kintzinger's Estate
221
Kirby v. Taylor
388
V. Turner
322
Kirk V. Paulin
105
Kirkman, Ex parte
363
Kirkpatrick v. Lookhart
260
Kirksey v. Friend
114
Kirwin v. Weippert
136
Kitchell V. Mudgett
58
Kitchen v. Bedford
189
V. Lee
408,
409
446
Kittridge v. Betton
388
Klaus V. State
450
Klein v. Jewatt
78
Kleinert '-. Beall
446
V Elders
22 >
Kline v. Beebe
285
437
V. Central Pacific R.
R. Co.
428
V. Kline
181
V. L'Araoreaux
413
Kline's Estate
181
Klingman v. Holn?es
262
Klopper V. Bromme
262
Knaggs V. Green
446
Knapp ('. Smith
120 a,
148
153
Kniclcerbocker v. Knickerbocker
361
Knight V. Knight
44,
107
108
V. Wilcox
261
Knott V. Cotter
254,
305
333
Knotts V. Stearns
448
Knowles v. Hull
163
V. Knowles
136 a,
13rf
V. Toone
145
Knowlton v. Bradley
350,
353
376
Knox I'. Bushell
61
V. Flack
406
V. Jordan
143
V. Pickett
128
Knye v. Moore
Kohn V. Russell
Kolls 0. De Leyer
Koltenback v. Cracraft
Konigmaclier's Appeal
Koontz V. Knabb
Kopke V. People
Kouskop V. Shontz
Kozine v. Home
Kraemer v. Kraemer
Kraft V. Wickey
Kraker v. Byrura
Kreig r. Wells
Kreis v. Wells
Krigger i\ Day
Krugg r. Davis
Krumm v. Beach
Kuhn V. Stansville
Kuothe V. Kaiser
Kurtz r. Hibner
Kutcher v. Williams
Kyler v. Barnett
Section
279, 281
145
150
133
353, 356
143
21
166, 167, 168
305
76
326, 329
337, 413
429
259
222
277
76
155
350
269, 270
168
353, 354
Lacey, Ex parte 848
V. Williams 303
Ladd V. Hildebrant 94
V. Lynn 61
Lahr's Appeal 188
Laing v. Cunningham 162
Lake y. Lake 7
V. McDavitt 303
Lamar v. Micou 290, 303, 314, 329,
348, 353
Lamb v. Milnes 109
Lamb's Appeal 354
Lambe v. Eames 281
Lamphier v. State 51, 82
Lamphir v. Creed 83
Lampman v. Hammond 261
Landis v. Eppstein 324
Lane v. Ironmonger 63, 64, 106, 108
V. Lane 221
V. McKeen 94, 174
V. Taylor 348, 351
Lang V. Pettus 304
Langford v. Fray 404
Langham v. Nenny 83
V. State 260
Lanier v. GriflBn 388
Lannoy v. Duchess of Athol 52, 239
t'. Duke of Athol 183 a
Lansier c. Ross 125
Lant's Appeal 180
Lantz V. Frey 273
Lapsle\' V. Grierson 227, 228
Larimer v. Kelley 162, 294
Lashbrook v. Batten 263
Hi
TABLE OF CASES.
Section
Section
Lassence v. Tierney
175
Lewin's Trusts, In re
141
Latham v. Latham
220 />
Lewis t'. Alfred
273, 388
V. Myers
387
V. Ames
26
Latouche v. Latouche
134
V. Babcock
77
Latts V. Brooks
252
V. Edmands
333
Lauilerdale v. Peerage
29
V. Eutzler
277
Laughlin v. Eaton
77
V. Harris 138
, 145, 155
Lavender v. Blackstone
188
V. Johns
154
Lavie v. Phillips
163
V. Littlefield
424
Law V. Wilkin
241
V. Mathews
105
Lawes v. Lumpkin
88
Lew-son v. Copeland
352
Lawford v. Davies
30;
Libby v. Chase
150
Lawrence i\ Lawrence
4(i
Lichtenbergcr v. Graham
120, 155
V. M'Anter
406
Liddlow V. Wilmot
66, 68
V. Spence
260
Light's Appeal
354
Lawson v. Lovejoy
435
Linch V. Kotan
377
V. Shotwell
221
Lincoln v. Alexander
321, 330
Lawson's Appeal
273
Lind r. Sullestadt
254, 268
Leach v. Duvall
181
Lindley v. Smitii
94
?■. Noyes
94
Lindo i: Belisario
12,13
V. Prebster
210
Lindon v. Lindon
23
Leave! v. Bettis
305, 318
Lindsay v. Lindsay
888
Leavitt v. Leavitt
23, 24, 187
Lindsell r. Thacker
105
Leaycraft v. Hedden
136
Line v. Blizzard
155
Lebanon v. GrifRn
•265
Lingeii v. Lingen
226, 231
Le Blanc's Succession
305
Linton r. Walker
382
Lecone v. Sheires
287
Lipe i\ Eisenlord
269
Ledlie v. Vrooman
143
Lippincott v. Mitchell
117, 152
Lee V. Brown
389
Lishey v. Lishey
155
V. Hodges
261
Litchfield v. Cadworth
89
V. Ice
308, 317
Little V. Duncan
404, 435
V. Lanahan
58, 114
Livermore v. Bemia
367
Lee's Appeal
301
Liverpool Adelphi Loan Associa-
Lefever v. Lefever
316, 319
tion i>. Fairhurst
76
Lefevre v. Laraway
348
Livingston v. Livingston
175, 190
Lefevres v. Murdock
222
Livingstone, In re
412
Lefils V. Sugg
411
Livisey i-. Hodge
339
Legard v. Johnson
216
Lloyd, In re
278
Legeyt v. O'Brien
18
V. Fulton
179, 187
Legg V. Goldwire
82, 182
V. Pughe
86
V. Legg
221
Locke r. Smith
413
Le Gierse v. Moore
121
Lockhart v. Phillips
384
Lehman r. Brooklyn
429
Lockman v. Probst
155
Leidig v. Cover's Exc'rs
269
Lockwood V. Fenton
305
Leigh V. Byron
281
Lockyer v. Sinclair
26
Leinbach v. Templin
162
V. Thomas
68
Leitensdorfer v. Hempstead
440
Loehr v. Colborn
385
Leland v. Wliittaker
120
Loftis's Case
88
Lemly >\ Atwood
384
Logan ('. Fairlee
306
Lempriere v. Lange
425
V. Goodall
176
Lenderman v. Talley
83
V. Hall
155
Lennox v. Barnum
348
r. Logan
41
V. DufRn
158 rt
V. Thrift
95
V. Eldrcd
59
V. Wienholt
177
Leonard v. Leonard
308
Lomnx r. Smyth
152
V. Putnam
329
London Bank of Australia v.
Lem-
Leslie v. Fitzpatrick
408
priiTc
135
Lethcm v. Hall
306, 334
Londonderry v. Chester
29
Levering v. Heighe
186
Long V. Hewitt
232
V. Levering
399
i\ Kinney
73
Levett V. Penrice
64
V. Morrison
77, 78
TABLE OF CASES.
liii
Section
Long V. Norcomb
338
Longley v. Hall
375
Longmeid v. Holliday
77
V. Newliall
237, 241
Loomis I'. Cline
431
Longstreet v. Tilton
343
Lord v. Hough
305, 333
V. Parker
169
V. Poor
208
Loring v. Alleine
377
V. Baron
307
Losey v. Bond
404, 438
Loud V. Loud
217
Love V. Grahani
183
V. Logan
352
V. Watkins
150
Lovelace i'. Smith
351
Lovell V. Minot
353
V. Newton
161, 162
Lover v. Lover
26
Lovett V. Salem, &c. R. R.
Co. 429
Low V. Hanson
32, 326
V. Purdy
347
V. Sinelkler
443
Lowe V. Griffith
412
Lower Augusta v. Salinsgrove 278 «
Lowey v. State
367
Lowndes v. Lowndes
281
Lowry r. Button
251
V. Drake
440
V. State
354
Loyd V. Malone
361, 385
Lucas V. Brooks
53
V. Rickerson
89
Ludwig's Appeal
58
Lufkin v. Mayall
443
Lulirs I'. Eimer
39
Lunib V. Milnes
105
Lumley v. Gye
260, 2(53
Lunay v. Vantyne
232
Lunday v. Thomas
343
Lusliington v. Sewell
107
Luther v. Cote
53
Lygo V. Newbold
429
Lyman v. Cessford
187
Lyn V. Ashton
137
Lynch v. Bond
438
V. Lynch
36
V. Nurdin
429
Lynde v. Budd
441
('. McGregor
202
V. Rotan
372
Lyndon v. Lyndon
23, 24
Lyne, Succession of
392
Lynela v. Bollini
267 a, 268
V. Kirby
361, 361 a
Lyon V. Green Bay R.
118
V. Vanatta
361
Lyons v. Blenkin
246
Lytle's Appeal
145
M.
Sectioh
Maccord v. Osborne
433
Mack r. Brammer
351, 353
;■. State
426
Mackeusie, Re
393
Mackin v. Morse
354
Mackinley v. McGregor
127, 306
Maclay v. Love 114, 143, 212,
257, 269
Macliii V. Smith
338
Macready v. Wilcox
290, 333
Macvey v. Macvey
363
Madison County v. Johnston
368
Madox I'. Nowlan
178
MagL'e i\ Holland
262
Magee's Estate
277
Magniac v. Thompson
173, 188
Magrath v. Magrath
144 a
Magruder ?;. Darnall 59,
326, 376
V. Goodwin
388
V. Goodwyn
382
V. Peter
350
Maguinay v. Sandek
261
Maguire v. Maguire
12, 337
Maiioney v. McGee
361
Major V. Holmes
146
V. Lansley
183
V. Symes 143
149, 150
Male V. Roberts
393
Mallinson v. INIallinson
249, 250
Mallory v. Vanderheyden
57
Manby v. Scott
62,66
Manchester v. Smith
268
Mangan v. Atterton
428
Mangam v. Brooklyn R. R. Cc
429
Manley v. Field
261
Mann v. McDonald
S48
V. State
53
Manning v. Baker
372, 374
V. Chambers
186
V. Johnson
446
V. Manning
372, 382
Manson v. Felton
32
Manvell v. Thompson
261
Manwaring v. Sands
66
Maple V. Wightman
404
Marcellin, Matter of
805
March v. Bennett
347
V. Berrier
357
Marheinske v. Grothous
334
Markey v. Brewster
274
Markley v. Wartman
67
Marlow v. Pltfeild
414
Marquardt v. Flaugher
144 a
Marquess v. Le Baw
337
Marsh, Ex parte
138, 173
V. Alford
151
V. Blackman
265
V. Loader
395
V. Marsh
53,120
Marshall v. Crutwell
190
V. Jaquith
189
liv
TABLE OF CASES.
Section ,
Marshall v. Marshall
218
V. Oakes
75
V. liutton
58, 67
Marston v. Brittenham
150, 155
Mart V. Brown
329
Martin v. ^tna Ins. Co.
232, 253
V. Colburn
126
V. Curd
120
V. Foster
196, 318
V. Gale
414
V. Mayo
485
V. McDonald
329
V. Payne
261
V. Rector
120
V. Robson
328, 329
V. Stevens
349
V. Way man
449
Martinez >;. Ward
168
Martlett v. Nilson
279
Marvin v. Sciiilling
347,361
Mason v. Bowles
168
i\ Buchanan
352
V. Hutchins
252 a
V. Mason
381
V. Morgan
58
V. Wait
361
V. Wright
408, 443
Mass. Gen. Hospital v. Fairbanks 344
V. Hall
451
Massey v. Massey
352
V. Parker
105
Massingale v. Tate
305
Master v. Fuller
134
Master of Rolls v. Houghton
271
Matlock V. Rice
372
Mathes v. Shank
146
Mathews v. Cowan
424
Matthew v. Wade
308
Matthews v. Brise
352
V. Cen. Pac. R.
79
V. Copeland
89, 114
V. Jenkins
75
r. Sheldon
155
Matthewman's Case
135
v. Davis
447
Matthewson v. Perry
254
Mattingley v. Nye
187
Mattocks V. Stearns
89
Mattoon v. Cowing 367
, 369, 373
Mattox V. Patterson
374
Maudslay v. Maudslay
221
Maull V. Vaushan
210
Maunsell v. White
78
Mawson v. Blane
433
Maxon v. Sawyer
311
Maxwell, Er parte
306
V. Campbell
303, 864
May V. Duke
348, 886
V. May
374, 376
Maybin, lie
367
Mayer v. McLure
445
Mayfield v. Clifton
Mayhew i'. Thayer
Maynard v. Vinton
Mayne v. Baldwin
V. Williams
Mayor r. Hutchinson
Sf.CTION
84
61, 66, 164
53
251
211
143
Mazouck V. Iowa Northern R. R. Co. 155
McAdam ;;. Walker 18
McAfee i\ Robertson 7, 72
McAllister v. McAllister 218
V. Olmstead 319
McBride d. McBride 249
McBurnie, Ex })arte 174
McCahan's Appeal 348
McCall c. Flippin 347, 349
McCampbell v. McCampbell 191, 192
McCartee v. Teller . 399
McCarty v. Carter 440
i: Murray 406
McCarthy v. Henderson 409
V. Hinman 239
V. Nicrosi 407
McChesney v. Brown 136
McCleary v. Mentse 377
McClellan v. Kennedy 388
V. Tilson 199
McClelland v. McClelland 332
McClintic v. Ochiltree 138
McCloskey i-. Seyphert 267 a, 268
McClure v. Commonwealth 303, 826
V. Evans 272
V. McClure 423
McClurg V. Perry 23, 26
McClurg's Appeal 36
McCluskey v. Provident Institution 162
McConnell v. Martin 89, 155
McCoon V. Smith 423
McCormick v. Leggett 439
V. McCormick 36
V. Penn. Cent. R. 208
McCowan v. Donaldson 119
M'Coy V. Huffman 443
M'Crillie v. Howe 414
McCrocklin v. McCrocklin 218
McCubbin v. Patterson 217
McCue I'. Garvey 199
M'Culloche, In re 317 a
McCuUough V Ford 94
McCutcher v. McGahay 63, 66
McDaniel v. Mann 837
McDavid v. Adams 80, 81
McDonald, In re 420
V. Crockett 124
McDonnell v. Harding 352
V. Meadows 367
V. Montague 448
McDow V. Brown 388
M'Dow's Case 420
McDowell V. Bonner 332
V. (.Georgia R. R. 259, 262
McDuff V. Beauchamp 193, 398
TABLE OF CASES.
Iv
McDuffie V. Mclntire
McElfresh v. Kirkendall
MeEUienny's Appeal
McElney v. Musick
Mc Fad din v. Grumpier
V. Hewitt
McFaddj-n v. Jenkins
McFarland v. Conlee
McFarlane >-. Handle
McGan v. Marshall
M'George v. Egan
M'Giffen v. Stout
M'Gill V. Woodward
McGlashlin v. Wyatt
McGunigal r. Mung
Mclnnes c. More
Mclntyre i". Knowlton
McKenna v. Merry
V. Rowlett
McKay v. Allen
McKee ?-. Reynolds
McKeever v. Ball
McKennan v. Phillips 112,
McKeown v. Johnson
McKinley v. McGregor
McKlnney v. Clark
V. Hamilton
r. Jones
V. Noble
McKinnon v. McDonald
McKnigiit r. Walsh
McLane v. Curran
r. Lancaster
McLannan v. Adams
McLean, Succession oi
V. Longlands
McLendon r. Harlan
McMaliill V. McMahill
McMahon c. McManus
McMinn r. Hichmonds
McMulIen v. McMullen
M'Myn, Re
M'Nair i-. Hunt
McNaily v. Weld 186, 188,
McNeely v. Jameson
McPherson v. Commonwealth
McQueen r. Fulgam
McWillianis v. Longlands
V. Norfleet
Mead v. Hughes
Meadcr c. Page
Meakiiis r. Morris
Meals L\ Meals
Means '•. Robinson
Mebane r. Mebane
Medbury r. Watrous
Medwortli ?•. Pope
Meek r. Kettlewell
?'. Perry
Meeker r. Wright
Meese v. Fond du Lac
Section
Section
348
352
Meister v. Moore
29
3
7,75
Mellish V. Mellish
326, 389
374
375
Melvin v. Melvin
36
348
Menk v. Steinfort
53
143
Mendes v. Mendes
299,
311, 313
366
Menifu c. Hamilton
358
189
Menvill's Case
89
384
Mercein r. Jackson
259
373
V. People
216, 248
438
440
V. Smith
152
63
Mercer, Ex parte
186
449
Merchant's Fire Ins.
Co. I
;. Grant 438
437
Mercine v. People
251
367
Merrells v. Phelps
357
278
Merriam v. Boston R
149
27
V. Cunningham
411,
412,
413, 425
154
280
V. Harsen
192
413
V. Wilkins
437
137
Merrick v. Plumley
154
127
Merrill !•. Bullock
124
217
V. Smith
162
361
Merritt v. Fleming
116,
125, 279
123
218
r. Simpson
351
75
V. Williams
431
72
164
Merriweather r. Brooker
87, 162
24
Merry v. Nickalls
407
152
Messenger v. Clarke
104, 132
343
Messervey v. Barelli
384
290
Metcalf V. Alter
393
164
V. Luther
329
240
Meth. Episcopal Church i
•. Jaques
374
112,
128, 136
190
Metier v. Metier
53
61
Metropolitan Bank v
Taylor
143
7
Mewhirter v. Hatten
77
161
Mews V. Mews
161
367
Meyer v Haworth
59
273
p. Rahte
167
263
Michael v. Dunkle
41
404
414
V. Locke
349
151
190
V. More
174
199
Mickelberry r. Harvey
70,72
348
Middlebury College i
. Chandler 412
211
311
Middleton v. Hoge
441
329
Midland R. R. Co. v.
Pye
219
17
Miles V. Boyden
255,
449, 450
75
V. Ctiilton
21
293
V. Lingerman
446, 447
367
V. Williams
88
219
Milford r. Milford
239
72
V. Worcester
29
419
420
Millard r. Hewlett
407
85
Miller r. Albertson
133
391
>•. Blackburn
82
343
V. Brown
143
443
1-. Carnall
377
281
V. Delamater
72
189
V. Edwards
155
388
V. Hine
150
183
V. Miller
23,
269, 277
77
v. Newton
143
Ivi
TABLE OF CASES.
Section
Section
Miller v. Shackleford
90,91
Moore, Re
232
V. Sinionds
270
V. Abernethy
439, 440
V. Sims
408
V. Baker
377
V. Smith
50, 343, 407
V. Christian
260
V. State
50, 63
V. C^ornell
94
V. Stewart
277
V. Graves
394
V. Williams
87
V. Harris
107
V. Williamson
160
V. Hazleton
388
Miller's Appeal
272
V. Hegeman
227 a
Miller's Estate
351
V. Hood
377
Mills V. Graham
424
V. Lesenr
57
V. Humes
449
V. Moore 85, 218,
248, 397, 398
V. Wyman 237,
241, 265, 269
V. Morris
105, 131
Milner r. Lord Harewood
341
V. Page
187
V. Milner
77
t'. Richardson
89
Miner v. Miner
248
V. Kobinson
219
Minfy v. Ball
S26
V. Stevenson
219
Minnock v. Shortridge
408
V. Webster
107
Minor v. Betts
305
V. Whittaker
31
Missley v. Hcisey
155
Moorehead v. Orr
373
Mitciiell V. Colglazier
126
V. Wallis
367
V. Jones
361
Moores v. Moores
36
r. Mitchell
15, 22
Moorhouse v. Colvin
177, 179
r. Kobinson
492
Mordaunt v. MoncreifEe
220 6
V. Sawyer
166
Moreau v. Branson
145
V. Seitz
162
Morehouse v. Cook
305, 316
?'. Treanor
64,69
Moreland v. Myall
116,120 a
r. Union Ins. Co.
253
Morgan r. Anderson
316
V. Williams
382
V. Bolles
162
Mitford V. Mitford
87
V. Dillon
316, 318
Mizen v. Pick
60,68
V. Hannas
374
Mockey v. Gray
449
V. Johnson
385
i^lodawell V. Holmes
317 a
V. Morgan
63, 371, 375
Modisett r. Pike
41
V. Perhamus
167
Mohny v. Evans
412, 413
V. Perry
226
V. Hoffman
261
V. Smith
260
Mohr V. Mahiere
361
V. Thames Bank
82
If. Tulip
361
V. Tliorne
450
Monaghan v. Fire Ins. Co
402
Morrell, In re
365
V. School District
252, 267 a
i: Dickey
328, 329
Moncrief v. Ely
279
V. Morrell
20
Moneil V. Scherrick
270
Morrill v. Aden
446
V. .VloncU
382
Morris v. Cooper
369
Monnin v. Bernjon
388
V. Davis
225
Montaijue, Re
340
V. Garrison
.343
V Hcnedict
61, 62, 6.3, 64
V. Harris
300
Montforil ( Lord) v. Cadogan (Lord) 140
V. Low
254, 267 a
Montgomery v. Carlton
407
V. Morris
360
V. Ciianey
272
V. Palmer
61
V. Henderson
177, 180
V. Stephenson
93
V. Montgomery
23, 227 ./.
r. Swaney
225
V. Spraidile
169
Morrison r. Dobson
27
V. Smith
317
V. Kinstra
364, 386
V. T.ite
89
i\ Morrison
225 6
V. Tilley
186
V. Thistle
192
Monumental, &c. Association v. Her-
Morrison's Case
329
miHi
404, 409
Morrow v. Roy all
386
Moody, He
324
V. Whitesides
66
V. Hemphill
83
Morse v. Welton
268
V. Matthews
87, 164
?i. Wheeler
446
Moon V. Towers
263
Mortara v. Hall
413
TABLE or CASES.
Ivii
Section
Mortimer v. Welton
268
N.
V. Wrijjlit
241
Section
Morton v. Kainey
274
Nace I'. Boyer
24
Moseby v. Partee
94
Naden, Ex parte
16
Moselcy v Rendell
210
Nairn v. Prouse
173
Moses V. Faber
317
Nalle V. Lively
188
r. Fogartie
64
Nance v. Nance
353, 372
i: Stevens
443
Napier v. Effingham
398
Mosteller's Appeal
269
Nash 0. Mitchell
143,
153, 167
Motor V. Madden
875
V. Nash
83
Motley I'. Head
380
V. Spofford
95
V. Motley
389
Nashville, &c. R. R. Co. v.
EUi
ott 443
Mottcaux v. St. Aubin
402
Natchez K. r. Cook
258, 259
Moulton v. Haley
155
Nathans r. Arkwright
405, 440
V. Sinims
308
National Bank v. Sprague
169
Mount V. Kesterton
94
Naugle V. State
367
Mountain v. Fisher
443
Naylor v. Winch
386
Mountfort, E.r parte
246
Neal V. Bartleson
303
Mowbray r. Mowbray
239
273
V. Gillet
423
Moye r. Waters
119
V. Hermans
162
Moyer v. Fletcher
337
Neal's (Paul) Case
166
Mover's Appeal
155
Neals V. Gilmore
273
Mudway v. Croft
18
Nedby v. Nedby
190
Mulford r. Beveridge
361
Needham v. Bremmer
66
Mulliallen r. Marum
388
Needles v. Needles
88
Muller (.'. Benner
321, 343
350
Neeld v. Neeld
46
Multiern v. MoDavitt
374
Neill V. Neill
367
Mulvey i'. State
50
Neil's Appeal
277
Munday v. Baldwin
32!)
Neilson v. Brown
41, 77
Munger v Hess
424
I'. Cook
373,
374, 376
Munro c Munro
226
Neincewicz v. Gahn
95
V Reed
429
Nelson i'. Eaton
402
V. Saunders
231
V. Green
304
Munroe v De Chemant
70
V. Lee
330
V. Phillips
326
V. Reed
330
Munson v. Munson
303
V. Searle
59
V. VVashband
412
V. Smith
119
Munlock V. Murdock
273
V. Stocker
425
Murle)' V. Roche
429
V. Wyan
272
Murphree v. Singleton
86
163
Netterville v. Barber
167
Murpliy, Ex parte
249
Nettleton i'. State
317
V. Borland
452
Neufville v. Thompson
1G2
V. Green
390
Neves v. Scott
174, 177
I'. Johnson
419
Nevins v. Gourley
114, 155
i\ Ottenheimer
241
Newbery, In re
340
Murray r. Barlee
134
Newbrick v. Dugan
164
Musgrave v. Conover
361
Newcomer v. Hassard
133, 134
Musser v. Gardner
53
Newcomer's Appeal
367
V. Oliver
382
,388
New Hampshire Ins. Co. t
. Noyes 41 1
I'. Stewart
279
Newlands r. Paynter
82,
104, 132
Musson I'. Trigg
124
136
Newman v. James
124
Mustard v. Wohlford
404
442
V. Morris
169
Myers r. Hanlass
375
V. Reed 240,
353,
374, 375
V. King
187
191
Newport v. Cook
83, 240
V. Myers
238
Newry & Enniskillen R. R. Co
. V.
r. Pearsall
317
Coo m be
407
V. Hives
388
Newton v. Hatter
77, 79
V. Wade
338
339
V. London, &c. R.
450
Myrick v. Jacks
386
V. Hoe
57
V. Jacobs
386
Nichol V. Steger
413
Myrick's Probate
26
329
Nichols V. Allen
279
Iviii
TABLE OF CASES.
Section
Nichols V. O'Neill 89
Nicholson v. Heiderhoff 148
V. Sj)encer 337
V. Wilborn 70, 313, 413, 449
Nicholson's Appeal 316, 317, 348
Nicol, Matter of 801
V. Nicol 218
Nightingale v. Withlngton 252, 267 a,
268, 402
Niller v. Johnson 187
Nine r. Starr 279
Nippes's Appeal 187
Nispel V. Laparle 166, 167
Nissley v. Heisey 116
Noble V. Runyan 361
Noice i\ Brown 260
Nolte v. Libbert 402
Norbury v. Norbury 353
Norcross r. Stuart 77
Norris ;•. Beyea 114
V. Dodge's Adm'r 241
V. Lantz 85
V. Vance 445, 447
North, l?i re 233
V. James 447
V. Joslin 303
North Am. Coal Co. v. Dyett 138
Northcote ?'. Doughty 433
Northern Cent. K. v. Mills 79
Northern Line Packet Co. v. Shearer
53, 230, 268
North Penn. R. R. Co. v. Mahoney 429
Northrop v. Knowles 29
North Western Life Ins. Co. v. Allis 145
Norton i\ Ailor 273
V. Cowen 459
V. Fnzan 66
V. Nicliols 58
V. Rodes 65
V. TurviU 134
Norwood i: Stevenson 79
Note r. Sampson 361
Noyes ?•. Blakeman 138
Nugent r. Vetzera 326
Nunn c. Hancock 336
Nurse v. Craig 68
0.
Oakes v. Oakes 269
Oakley r. Pound 143
Obermayer v. Greenleaf 174
O'Brien v. Strang 376
Occe r. liecten 238
Occleston v. FuUalove 281
O'Conner v. Carver 385
O'Daily v. Morris 58, 148
Odend'hnl v. Devlin 188
Offlcy i: Clay 58, 81
OTlaherty v. Union R. R. Co. 429
Section
O'Gara v. Eisenlohr 204
Ogborn V. Francis 261
Ogden V. Prentice 63, 64
Oglander v. Baston 88
Oglesby v. Hall 169
Oglesby Coal Co. v. Pasco 58, 97
O'Hara v. Alexander 137
V. Shepherd 344, 345, 350, 353
Oinson v. Heritage 66, 67
O'Keefe ?;. Casey 317 a
O'Kill V. Campbell 124, 127
Oklin V. Samborn 389
Old Dominion i;. McKenna 456
Oliver ;;. Carew 140
V. Hoadlet 319, 337
V. Houdlet 402
V. JMcClellan 423
V. McDuffie 413
i\ Oliver 35
V. Robertson 57
V. Woodroffe 400
Olivier, Succession of 265
Olmstead v. Keyes 198
Olney u. Howe 123
Olvcn V. Bryant 281
V. Peeblis 353
Omaha Horse R. v. Doolittle 328
O'Neal ('. Robinson 269
O'Neil V. Chicago R. 407
O'Neils Case 316
Opdike's Appeal 277
Ord V. Blackett 333
Ordinary v. Heishon 366, 375
V. Smith 337
Ordmary v. Dean 343
Ord way v. Bright 124
V. Phelps 388
V. Smith 368
Ornville v. Glenburn 268
Orris i\ Kimball 435
Ortiz V. De Senavides 447
Osborn v. Allen 245
V. Edwards 85, 92
V. Farr 444
V. Grelett 70
V. Van Home 239, 240
Osgood V. Bliss 180
1-. Breed's Heirs 272
Oswald V. Broderick 437
Ottee V. Beckton 238, 240
Ottman v Moak 438
Overholt v. Ellswell 79
Overseers of Alexandria v. Over-
seers of Bethlehem 2r,2-
Overton v. Bannister 425
V. Beavers 337
V. State 53
Owen V. Cawley 136, 149
V. State 44
r. White 244
Owens V. Dickenson 134
TABLE OF CASES.
lix
Oxly V. Tryon
Oxnard v. Swanton
Ozlev V. Ikelheimer
P.
Packard v. Arellanes
Packer v. Windliam
Paddock V. Wells
Padfield v. Padfield
Page V. Hentize
V. Morse
V. Page
Paine v. Farr
V. Hunt
Palliser v. Gurney
V. Miller
Palmer v. Garland
V. Miller
V. Oakley 301, 306, 308,
V. Trevor
Palmesh v. Darby
Park V. Hopkins
Parke v. Barron
V. Bates
?;. Converse
V. Kleber
V. Lincoln
V. Steed
V. Way .
Parker v. Elder
Parker's Appeal
Parks V. Barrowman
V. Cushman
Parmelee v. McGintry
V. Smith
Parnell, Goods of
Parsley v. Martin
Parsons v. Keys
Parton v. Hervey
Partridge v. Stocker 164,
Paschall v. Hall
Passenger R. R. Co. v. Stuter
V. Thurston
Patchett u. Holgate
Patchkin v. Croraacle
Patrick v. Litell 143,
V. Patrick
Pattee v. Harrington
Patten v. Patten 120,
Patterson v. Flanagan
V. Gaines
V. High
V, Lawrence
V. Pullman
Patton V. Charlestown Bank
V. Furthmeier
V. Gates
V. Thompson
Section
Section
407
Paul V. Himmel
363
168
V. Paul
174, 183 a
124
V. York
448
Paulding's Will
37
Paulin V. Howser
263
Pawson V. Brown
16
Payne v. Hutcheson
188
V. Scott
338
7
V. Stone
351
88
V. Williams
41
16
Peacock's Trusts, Re 163, 166, 167, 210
205
V Peacock
3, 33
187
Peake v. La Baw
145
446
Peale v. Tliurman
350
94
Pearce v. Foster
462
153
V. Olney
238
145
Pearcy v. Henly
150
159
Pearman v. Pearraan
44
404
Pearson, Re
375
363
V. Darrington
61, 64, 68
404
,438
V. McMillan
376, 382
343
, 351
Peaslee v. McLoon
52, 53
83
Peck V. Braman
373
347
V. Brummagin
343
75
V. Marling
219
22
V. Peck 26, 27, 363
153
Peckham v. Hadwen
449
129
Pedley v. Wellesley
53
61
Peigne v. Snowden
186, 375
305
Pellage v. Pellage
26<>
57
Pemberton v. Johnson
148
225
V. McGill
15«
446
Pence v. Dozier
262
16
Pendleton v. Pomeroy
450
94
Pendrell v. Pendrell
22.S
83
Penfold V. Mould
189, 384
363
385
Penleaze, Ex parte
238
253
Penn v. Whitehead 154, 164
, 165, 168
300
V. Young
155
355
Penn. v. Heisy
389
413
Pennington ;;. Fowler
328
21
Pennsylvania, &c. Co. v. Neal
385
165
168
Pennsylvania R. v. Bantom
259
189
V. Keller
259, 262
432
V. Long
492
87
Penrose v. Curren
424
225
Pentz V. Simonson
143, 155
404
People V. Board of Education
235
144
158
V. Boyce
249, 298
187
V. Brooks
249
77
V. Byron
321, 322
153,
155
V. Chearay
248
152
V. Circuit Judge
370
21,
225
V. Clark
261
200
V. Dean
374
157
V. Houghton
53
450
V. IngersoU
350
136
V. Kearney
300
450
V. Kendall
395
168
v. Kling
278 rt
361,
386
V. Mercein 248, 249, 250,
251, 254
Ix
TABLE OF CASES.
People ?•. New York
I'. Olmstead
V. Randolph
V. Slack
V. Townsend
V. Turner
V. Walsh
V. Wilcox
V. Winters
V. Wright
Pepper v. Lee
r. Smith
V. Stone
Pepperell v. Chamberlain
Perkins v. Cottrell
V. P:iliott
V. Finnegan
V. Perkins
Perl V. Phelps
Perrin v. Wilson
Perry v. Brainerd
V. Carmichael
V. Hutcliinson
V. Perry
V. Whitehead
Person v. Chase
Peteren v. State
Peters v. Fleming
V. Fowler
Petersham v. Dana
Peterson v. Holney
Petrie, Ex parte
Pettus V. Clarion
V. Sutton
Petty V. Anderson
V. Roberts
Peyton i'. Smith
Pfeiffer v. Knapp
Pharis v. Leachman
V. Lytle
Phelps V. Morrison
V. Walther
V. Worcester
Philadelphia v. Williamson
Phillips, Ex parte
V. Barnet
V. Davis
V. Graves
V. Green
V. Meyers
V. Phillips
V. Wooster
Phillipson v. Hayter
Philpot V. Bingham
Pickering v. DeRochemont
r. Pickering
Pickler v. State
Pico, Re
Pidgon V. Crane
Pier V. Siegel
Pierce, Matter of
Section
449
244
395
20
395
256
487
245, 305, 308, 332, 833
44,50
50
117, 123, 124
150
315, 321, 322
86
8i)
143, 145
316
190, 391
252 rt
413
311
255, 259, 324
261
269
281
407, 421, 443
398
411, 413
120 a
278 a
412
239
354
353
163, 414 «
442, 446
21t9
382, 385
89
91
188
219
412, 413
17
279, 347
52
338, 374
14:;
405, 409, 438, 439
187
316, 363
187
61, 63
401, 406
382
77, 79
406
277
291
155
298
Section
Pierce, Re
386
V. Irish
372
388
V. Millay
429
V. Pierce
125
183
239
V. Prescott
376
V. Waring
386
387
Pierpont v. Wilson
66
Pierson v. Lum
150
Pigott V. Pigott
88
Pike V. Baker
72,
116,
190
V. Fitzgibbon
136
Pillow V. Bushnell
77
Pirn V. Downing
322
Pinard's Succession
7
Pingree v. Goodrich
13
Pinkston v. McLemore
162
Pinney v. Fellows
112
125
186
Pippen V. Wesson
114
143
148
Pippin V. Jones
324
Pitcher v. Laycock
440
446
V. Plank Road Co.
431
Pitt V. Cherry
301
V. Pitt
88
V. Smith
18
Pittman v. Pittman
221
Place V. Rhem
187
Planer v. Patchin
57
Platner v. Patchin
57
Ploss V. Thomas
168
Plotts V. Roseberry
241
Plowes V. Bassey
225
Plumer v. Lord
169
Plummer v. Webb
252
259
260
Poland i». Earhart
259
Pond V. Carpenter
114
V. Curtiss
343
350
V. Skeen
183
Pooley V. Webb
127
Pope V. Jackson
361
V. Sale
278
V. Shanklin
189
Porch V. Fries
96,
201
313
Port V. Port
26
Porter v. Allen
53
V. Bank of Rutland
123
124
V. Bleiber
381
V. Briggs
61
V. Caspar
155
V. Gamba
167,
168
V. Haley
149
V Mount
76
Porter's Appeal
272
Porterfield ii. Augusta
37
Posey V. Posey
397
Postern v. Young
304
Post's P'state
352
Pote's Appeal
282
Potinger v. Wightman
230,
234
Pott ('. Cleg
82
Potter V. Hiscox
352,
377
V. State
367,
368,
376
TABLE OF CASES.
Ixi
Sectiox
Sectiox
Pott8 V. Cogdell
177
Pusey V. Harper
188
Poultney v. Glover
26!)
Putnam v. Putnam
59
V. Randall
377
V. Towne
2ti9
Powell V. Boou
358
Pybus V. Smith
94,110
, 137
V. Cleaver
246
,288
Pye, Ex parte
103
V. Evans
352
Pyle V. Cravens
406
V. Gott
406
V. Jones
381
V. North
351
Q.
r. Wight
329
Powers V. Russell
70
Queen v. Allen
V. Carnatic R. R. Co.
21
V. Totten
158
111
Prall v. Smith
114
V. Cresswell
29
Pratt V. Baker
V. Jenner
V. McJunkin
V. Nitz
369
337
221
,376
278
V. Curg«rwen
V Kenny
V. Lumley
17. Nash
21
51
21
278
V. Pratt
329
Quidort v. Pergaux
162
V. Wright
269
, 366
Quigley v. Graham
Quincy v. Quincy
Quinlan v. Quinlan
114
Pray v. Gorliam
Preble v. Boghurst
254
275
66
178
V. Longfellow
337
Quirin v. Cooke
388
Prentice v. Decker
388
Prescott V. Brown
80
V. Norris
424
425
Preston v. Evans
75
R.
Preusser v. Henshaw
169
Prevot V. Lawrence
174
Rabb t'. Aiken
89
Prewit V. Wilson
174
Rabe v. Hanna
41
Price, In re
45
Racouillat v. Requena
372
V. Hewitt '
425
Radford v. Carwile
129
133
V. Jenkins
174
Ragland v. Justices
377
V. Price
73
Railroad Co. v. Chambers
385
V. Sanchez
^
121
V. Harris
90,91
V. Sanders
412, 414
V. Rainey
155
r. Strange
205
Railsback v. Cooke
382
V. Winter
435
Rains v. Hays
272
Price, Matter of
361
Rainsford v. Rainsford
439
Prichard i'. Ames
105
Ralston, Ex parte
333
V. Prichard
44
Ramsay t>. Richardson
174
Pricketts i'. Pricketts
209
Ramsey v. Ramsey 305,
316, 332
333
Prime ;;. Foote
304
Randall v. Lunt
188
Prior V. West
255 a
17. Randall 43, 188,
191, 217
218
Proale v. Soady
221
V. Sweet
414
Probate Court v. Child
377
Randlett v. Rice
21
V. Hibbard
329
Rankin v. Kemp
373
V. Strong
364
V. Miller
361
Probst V. Delameter
492
Ransom v. Burges
238
Proctor V. Seane
4.34, 435
437
V. Nichols
197
Proudley i'. Fielder
107
V. Ransom
192
Prout r. Hoge
115
Rathbun v. Colton
376
V. Roby
124
Rawlin v. Rounds
77
V. Wilier
435, 439
445
I'. Van Dyke
69
Prouty r. Edgar
415
419
Rawson v. Penn. R. R. Co
208
Prowse V. Spurway
29
Ray, Ex parte
105
Pugh, Ex parte
161
V. Haines
443
V. West
255 n
V. McGinnis
351
Pulbrook, fn re
246
V. Tubbs
414, 424,
431
PuUis V. Robinson
195
Raybold v. Raybold
162
Purden i\ Jackson
98
Raymond v. Loyle
241
Purrety v. Hayes
361
459
V. Sawj'er
343
Ixii
TABLE OF CASES.
Section
53,61
66
53
305
64
155
112, 175, 186, 187
261
167, 169, 170
337, 344
188
210
267, 268
269, 274
363
187
308
403, 404
218
452
67
66
354, 376
262
155
83
67
21
118,120 a
16,21
235, 250, 332
244
250
45
403, 407, 421
23,27
398
23,28
395
54
376
244
104, 131, 137
53
44
388
404
377
67
262
V. Merrill 119, 162, 164, 165
V. Pate 447
V. Pote 440
V. Richardson 350
V. State 386
V. Stodder 123, 137
Richardson's Case 255
Richmond v. Boynton 366
V. Tibhles 150
Ricker v. Cliarter Oak Ins. Co. 253
V. Ham 187
Raynes v. Bennett
Roa V. Durkce
V. Tucker
Read v. Drake
V. Teakle
Reade v. Earle
V. Livingston
Readie v. Scoolt
Reading v. Mullen
V. Wilson
Ready v. Bragg
V. Hamm
Ream v. Watkins
Reando v. Misplay
Redd V. Jones
Redlield v. Buck
Redman v. Chance
Reed v. Batchelder
I'. Beazley
V. Bosheare
V. Legard
V. Moore
V. Timmins
V. Williams
Reeder v. Flinn
Rees V. Keith
Reese v. Chilton
Reeves v. Reeves
V. Webster
Regina v. Chadwick
V. Clark
V, Edwards
V. Howes
I'. Kelly
V. Lord
V. Millis
V. Nicholas
V. Orgill
V. Phillips
V. Plummer
V. Ryburn
V. White
Rich V. Cockell
Ricliards v. Burden
V. Richards
Richardson v. Binney
V. Borlight
r. Day
V. Dubois
I". Fonto
Section
Rickerstriker v. State 53
Riddle v. Hulse 161, 162
V. McGinnis 261
Rider v. Kelso 270
llidgway v. English 269
Kidout V. Earl of Plymouth 208
Riggs V. Fiske 410
Rigoney »•. Jameson 254
Riley v. Byrd 277
V. Mallory
V. Riley
Rinehart v. Bills
Ring V. Jamieson
Rinker v. Streit
Rippon V. Dawding
Risdon, Goods of
Rivers i'. Carleton
V. Gregg
t'. Jolks
V. Rivers
V. Sneed
V. Thayer
407, 442
88, 175
41
445
328, 338, 339
176
200
162
413
376
2206
232
177
Roach V. Garvin 313, 316, 317 a, 332 .
V. Quick 416
Roadcap v. Sipe 75
Robalina v. Armstrong 278 a
Robb ('. Brewer 154
V. Cutler 407
Robb's Appeal 63
Robbins v. Eaton 441
V. Mount 423
Roberts v. Coates 370
V. Dixwell 107
V. Frisby 190
V. Kelley 71
V. Morrin 382
V. Place 86
V. Polgrean 87
V. Sacra 343
V. Spicer 105
V. Wiggin 440
Roberts, Matter of 375
Robertson i;. Cole 24
V. Cowdry 27
V. Lyon 293
V. Norris 90
V. Robertson 217
V. State 26, 27
V. Wilburn 68
Robeson i'. Martin 388
Robinson v. Burton 262
V. Cone 429
V. Frost 363
V. Gee 209
V. Hersey 343, 351
V. Hoskins 435
V. O'Neal 17, 136
V. Pebworth 353, 386
I'. Robinson 94, 272, 3.54, 384
V. Weeks 403, 409, 442
V. Zallinger 300, 316
TABLE OF CASES.
Ixiii
Section |
Robison v. Gosnold 66, 67 ,
V. Robison 53, 58
Robson V. Osborn 449
Roby V. Phelon 192 \
Rochfort V. Fitzmaurice 182
Rockford Bank v. Gay lord 116
Rodgers v. Dill 356
Roe V. Deniing 200
Rogers v. Blackwell 380
V. Brightman 175
V. Brooks 89 ,
V. Cunningham 185
V. Dill 363 I
V. Hopkins 377 \
V. McLean 329
V. Millard 273
V. Pike County Bank 83
V. Rogers 112
V. Smith 258
V. Turner 241
Rollins V. Marsh 321, 337, 343, 344
68,
Rooke 0. Kensington (Lord)
Rooney v. Milwaukee Chair Co.
Roosevelt v. EUithorp
Root I'. Stevenson
Roper's Trust, In re
Rose V. Brown
I'. Cobb
V. Gill
Roseborough v. Roseborough
Ross y. Ewer
V. Ross
V. Singleton
V. Southwestern Railroad 303,
V. Winners
Ross's Trust, In re
Roundy v. Thacher
Routh V. Howell
Rowe I'. Chichester
V. Rowe
Rower v. Hopwood
Rowland v. Jones
V. Plummer
Rowly r. Adams
V. Unwin
Rowney's Case
Royer's Apjjeal
183
262
200
424
239
188
350
350
338
139
232
59
329
57
110
445
352
87, 440
137
433
448
190
93
141
89
347, 348
Royston v. Royston 98, 337, 339, 373, 376
Ruchisky v. De Haven
Ruddock V. Marsh
Rugli V. Ottenheimer
Rumfelt V. Clemens
Rumniell v. Delworth
Rumney v. Keyes
Rundell v. Keeler
Kunkle v. Gale
Ruscombe v. Hare
Rush V. Van Vacter
V. Vought
V. Wick
404, 407
72
12, 114
150
461
65, 237
411
373
209
248
154, 267, 280
402, 415
Russel V. People's Saving Bank 145
Section
Russell V. Brooks 80, 81
V. Coffin 319
V. Russell 356
V. St. Aubyn 182
Russell's Appeal 183
Rust r. Vauvrack 2.50
Ruthington v. Temple 279
Rutlidge r. Carruthers 225
Kyall V. Kennedy 230
Ryan v. Madden 77
Ryder, In re 241
V. Bickerton 140
V. Hulse 114, 198
Ryland v. Wombwell 411, 412
s.
Sabel V. Slingluff 90, 92
Sackett's Estate 290
Sadler i-. Robinson 446
Sage V. Hammond 227 a, 367, 373, 876,
382
Sale r. Saunders 89
Salisbury v. Van Hoesen 376
Sallee v. Arnold 82
Saltmarsh v. Candia 77
Sammis v. McLaughlin 167
Sampson, Re 399
Sams V. Stockton 411
Sanders v. Ferguson 371, 377
V. Millers 174, 183
V. Rodney 216
Sanderson v. Robinson 183
V. Sanderson 316
Sandiland, Ex parte 48
Sanford v. Augusta 78
V. Lebanon 237
V. Pollock 155
Sapp V. Newson 27
Saratoga Co. Bank v. Pruyn 143
Sargeant v. Fuller 449
V. Matthewson 260
V. Wallis 361
Sartoris, Goods of 329
Sasscer v. Walker 366
Satterfield v. John 388
Saul V. His Creditors 393
Saum V. Coffelt 416
Saunderson v. Marr 458
V. Saunders 44
Savage v. Davis 58
V. Dickson 343
V. Sauer 268, 262
Savery v. King 271
Saville v. Sweeney 77
Sawyer v. Baker 126
V. Cassell 367
r. Knowles 381
Scarlett v. Snodgrass 148
Scarritt, Re 251
Ixiv
TABLE OP CASES.
Section
Scawen v. Blunt 83
Schaffer v. Lavretta 405
V. Luke 361 a
V. Keuter 191
V. State 21
Seheel v. Eidman 377
Schick V. Grote 192
Schiffer y. Pruden 221
Schindel v. Schindel 60
Schlosser's Appeal 58
Sclmieltz V. Garey 7
Schmidt v. Holtz 121
V. Milwaukee, &c. R. R. Co. 429
Sehraitheimer v. Eiseman 96, 421, 447
Schneider v. Starke 89
Schnuckle v. Beirman 241, 260
Schocli V. Garrett 273
Schoenberg v. Voight 252 a
Scholes V. Murray Iron Works 37
School Directors v. James 334
School District v. Bragdon 423
Schrimpf v. Settegast 273, 275
Schuencker v. Strong 424
SchuUhofer v. Metzger 61
Schultz V. State 53
Schurabert, Ex parte 248
Scobey v. Gano 806, 317, 377
Scott V. Buchanan 403, 439
V. Freeland 386, 389
V. Gamble 86
V. Hudson 168
V. Paquet 18
V. Porter 448
V. Sebright 23
V. Shafeldt 23, 24
V. State 388
V. Watson 423
V. White 268
Scott's Account, In re 377
Scott's Case 324
Scranton v. Stewart 96, 405, 437, 447
Scrutton v. Pattillo 83
Sebastian v. Bryan 367
Seaborne v. Maddy 241
Seager v. Shigerland 261
Seaman v. Duryea 372
Seaman, Matter of 370
Sears c. Giddey 199
V. Terry 303, 308
Seaton v. Benedict 63, 64
Seaverns v. Gertie 303, 308
Seavey v. Seavey 269
V. Seymour 420
Segelkin v. Meyer 450
Seguin v. Peterson 253, 266
Seguin's Appeal 375, 376, 386
Seigler v. Seigler 374
Seller v. People 50
Seilheimer v. Seilheimer 23
Seitz V. Mitchell 187
Seitz's Appeal 274
Section
Selby V. Selby
311
Selden v. Bank
115
Selden's Appeal
255
Self V. Taylor
444
Sellars v. Kinder
262
Selover v. Commercial Co.
121
Senneman's Appeal
332
381
Sergent v. Sergent
220 6
516
Serle v. St. Elroy
398
Serok v. Kattenberg
75
Serres v. Dodd
77
Sessions v. Kell
301
V. Trevitt
53
Sewall V. Roberts
232
Seward v. Jackson
270
Sexton V. Wheaton
186
Shafer v. Ahalt
77
Shafftner v. Briggs
356 a
363
Shakespeare v. Markham
273
274
Shallcross v. Smith
58
Shalterburg, Earl of, v. Lady Han-
nans 287
V. Edmondson 83, 352
Shanks v. Seamonds 860
Shannon v. Canney 145
V. Cropsey 273
Sharp V. Findley 449
r. Robertson 402
Sharpe v. Foy 174
V. McPike 155
Shartzner i'. Love 58
Shaw V. Bates 354
V. Coble 374
V. Coffin 424
V. Emery 72
V. Partridge 89
V. Shaw 36, 350
V. Steward 88
V. Thompson 67
Sheahan v. Wayne 347, 352
Shearman v. Aikens 222
V. Angel 281
Sheldon v. Newton 439
Shelton v. Springett 241
Shenk v. Mingle 277
Shepard v. Bevins 270
V. Pratt 187
Shepherd >: Evans 343
V McKoul 61
Sheppard v. Starke 57
Sherlock v. Kimmel 252, 252 a
Sherman v. Ballou 381
V. Brewer 382
V. Elder 168
V. Hannibal 427
V. Wright 326
Sherwood r. Sherwood 120
V. Smith 272
Sherry v. Sansberry 389
Shcton V. Smith 867
Shields v. Keys 148
TABLE OF CASES.
Ixv
Shipman v. Horton
Shipp V. Browmar
V. Dowmar
V. Wheeless
Shippen's Appeal
Shirley, Ex parte
V. Shirley
Shoilinberger's Appeal
Shook V. State
Short V. Battle
V. Moore
V. Robertson
V. Shropshire
Shorter v. Frazer
V. Williams
Shoulters v. Allen
Showers v. Robinson
Section
409, 446
133
136
861
155
1 '^3
82, 125, 137
376
329
124, 134, 137
124
402
435
385
303
380
230
Shrewsbury v. Shrewsbury 263
Shroyer v. Richmond 293, 366
Shuford u. Alexander 427
Sliumaker v. Johnson 95
Shurtleff v. Rile 335, 350
Shuster v. Perkins 366
Shute V. Dorr 267 a
Shuttlesworth v. Hughey 450
Shuyder v. Noble 136
Sichel V. Lambert 29
Sic-kles V. Carson 23
Sikes V. Johnson 423
V. Truitt 366
Sillings V. Baumgarden 343
Silver v. Martin 482
Silvens v. Porter 166, 167
Simmons v. Almy 343
V. McElwain 64, 188
Simms v. Norris 344
Simon v. Jones 399
Simons v. Howard 106
Simpson v. Gonzales 316, 319
V. Graves 174, 175, 186
V. Simpson 218
Sims 0. Burdoner 447
V. Everhardt 96, 97, 409, 426, 447,
477
V. Renwick 329
V. Rickets 117, 189, 190, 191
V. Smith 447
V. Spaulding 93
Singer Manuf. Co. v. Lamb 438
V. Rook 150, 155
Singleton v. Love 385, 386, 389
Sinklear v. Emert 413
Siter V. McClanachan 90, 92, 94
Skean v. Skean 42
Skelton v. Ordinary 347
Skillman v. Skillman 82, 162, 173, 188
Skinner, Ex parte 246
Skottowe V. Young 231
Slanning v. Style 161, 191
Slanter v. Favorite 358, 374
Slatterly v. Smiley 316
Section
405, 407
117
83
123
114
107
261
282
77
90
168
73
83
212
343
316, 317 a
343
482
249
173
174
391
61, 872
231
352
148
446
120 a
259
120 a
423
485
218
268
372
438
94
177, 180
414
439
370
450
273
18, 23, 216, 252 0,272,353
127
278 a
168
413
337
222
212
199
30
Slaughter v. Cunningham
V. Glenn
Slaymaker v. Bank
Sledge ;;. Clopton
Sleight V. Read
Sloper V. Cotrell
Slowcomb V. People
Sluman v. Wilson
Smalley v. Anderson
Smalman v. Agborovy
Smiley v. Meyer
V. Smiley
Smilie's Estate
Smith V. Allen
V. Angell
V. Bates
V. Bean
V. Bowen
V. Bragg
V. Chappell
V. Chirrell
V. Clark
V. Davis
V. Derr
V. Dibrell
V. Doe
V. Evans
V. Henry
V. Hestonville R.
V. Hewett
V. Karr
V. Kelly
V. Knowles
V. Knowlton
V. Lapeea
V. Low
V. McGuire
V. Moore
V. Oliphant
V. Parkell
V. Philbrick
V. Reduf
V. Rogers
r. Smith
V. Starr
V. State
V. Thompson
V. Young
Smith's Appeal
Smodt V. Lecatt
Smout V. Ilberry
Smyley v. Reese
Smyth V. State
Snavely v. Harkrader 316, 329, 354, 376
Snedicker v. Everingham 252 a, 254,
267 a
Snell V. Elam 388
Snelson v. Corbet 208
Snider v. Ridgway 58
Snodgrass's Appeal 127, 351
Snook V. Sutton 350
Ixvi
TABLE OF CASES.
Section |
Section
Snover v. Blair
337
St. George v. Wake
181
Snow V. Cable
162
St. John V. St. John
216
V. Paine
155
St. John's Parish u. Bronson
61
V. Sheldon
166
St. Louis R. V. Higgins
445
Snowliill V. Snowhill
330
Stafford Bank v. Underwood
152
Snyder v. People
51
122
Staley v. Barhite
177
V. Webb
173
Stall V. Macalaster
361
Sombies' Case
311
r. Meek
72
Somers v. Pumphrey
94
Stallwood V. Tredger
29
Sonierville v. Somei'ville
230
Stammers v. Macomb
64
Somes V. Skinner
343
Standeford v. Devol
83
Sottomayor v. De Barras
16
Standford v. Marshall
138
Soule V. Bonney
23
Stanford v. Murphy
53
SouUiar v. Kern
433
Stanley's Appeal
352
Soutliard v. Plummer
114
Stansbury v. Bertron
267 a
Southwestern R. v. Chapman 255 a
,343
Stanton v. Kirsch
120 o
Southall V. Clark
388
V. Wilson 237
241, 411
Soutliwick V. Southwick
36
Staple's Appeal
199
Southworth v. Packard
77
Stapleton v Croft
53,85
Spafford v. Warren
150
Stark V. Gamble
354, 388
Spann v. Jennings
127
V. Harrison
89
Sparhawk v. Allen
348
Starkey, Ex parte
339
V. Buell's Adm'r 238,
368
391
V. Starkey
36
Sparkes v. Bell
57
134
Starling v. Balkum
839
Spauiding v. Brent
388
Starr v. Peek
226
V. Day
124
Starrett v. Jameson
373, 375
Spaun ('. Collins
305
V. Wright
416
Spear v. Cuiumings
260
V. Wynn
226
V. Spear
354
State V. Alford
244
Spears v. Snell
250
V. Baird
248
Spece, In re
803
V. Banks
248
Speer v Tinsley
335
V. Barney
248
V. Woodsworth
337
V. Barrett
251
Speight V. Knight
308
317
V. Barton
395
V. Olivier
261
V. Beatty
279
Spelman v. Dowse
361
V. Belton
898
V. Terry 343
348
350
V. Bennett
53
Spencer v. Carr
405
V. Bolte
372
V. Earl of Chesterfield
315
V. Brady
17
V. Houghton
367
V. Breice
261
V Lewis
89
V. Brown
53
V. Spencer
181
V. Bunce
392, 893
V. Storrs
72
V. Burton
244
Spencer's Case
304
V. Camp
50
Sperry v. Dickinson
152
V. Cayce
343
V. Famung
344
V. Clark
338, 360
V. Haslain
114
,211
V. Cleaves
50
V. Spicer
21
V. Clotter
256
Spicer v. Early
443
V. Cook
337
Spier's Appeal
219
V. Craton
45
Spinning v. Blackburn
151
V. Davis
23
Spirett V. Willows
105
V. Dillon
395
Spooner v. Reynolds
154
V. Dole
30
Sprattle v. Sprattle
249
V. Driver
48
Spring V. HydifE
443
V. Engelke
317
V. Kane
361
V. Fleming
388
V. Woodworth
337
V. Gordon
260
Springer ;;. Berry
150
,156
V. Grass
373
Stables, In re
238
V. Greensdale
845, 386
V. Cook
388
V. Greenside
345
Stacker v. Whitlock
269
V. Grisby
248
TABLE OF CASES,
Ixvii
State
Section
V. Gunzler
487
Hairston
16
Hamilton County
Harriem
350
353
Harris
17
Hays
Henderson
208
377
Henry
Herman
388
225
Hewitt
336
Hodgskins
26,31
Hooper
Hughes
Hulick
17
377
115
Hull
377
Hyde
Jackson
308, 335
17
Joest
313
Jolly
Jones 244, 265,
50
324, 367, 372
Kennedy
King
Learnard
16
248
395
Leole
386
Lewis
308, 326
Libbey
Ludvvick
251
84
Mabrey
Martin
45
366
McKown
317
Miller
26,27
Morrison
352, 353
Murray
Oliver
384
44,48
Page
367
Parkerson
50
Paul's Exec'r
377
Pitts
161
Plaisted
404, 405, 487
Potter
50
Ransell
60
Rhodes
42,44
Rice
260
Richardson
248, 250
Roach
337
Roche
337
Scott
245, 251
Shackleford
367
Shoemaker
279
Shumpert
Slauter
225
377
Smith
248, 251
Steele
360
Stewart
370, 456
Strange
Straw
372, 377
85
Tavlor
267 a
Throw
357
Tice
395
Toney
Tunnel
395
373
,
Section
State V. Wax
895
V. Whittier
404
V. Williams
307
V. Wilson
53,85
V. Winkley
39
V. Womack
374
State, ex rel. v. Paine
248
State Nat. Bank v. Robidoux 95
Staton V. New
94
Stead V. Clay
107
Stean v. Freeman
435, 445
Stearns v. Weathers
114
Stecket's Appeal
277
Steed V. Cragh
88
Steedman i\ Poole
110
Steele, ^e
374
V. Steel
112, 124, 269
V. Thacher
260
Steele v. Steele
268
Steffey v. Steffey
94
Stein V. Bowman
53
Steinburg v. Meany
53
Stenim's Appeal
352
Stenman v. Huber
89
Stephens v. Hannibal R.
492
V. James
306, 329, 334
Stephenson, Goods of
196, 325
V. Hall
260
V. Osborne
218
V. State
395
V. Westfall
391
Sterling v. Adams
426
V. Potts
212
v. Simmons
83
Stevens v. Parish
150
V. Reed
158
V. Savage
390
V. Stevens
220 6
V. Tucker
367
Stevenson's Appeal
372
Stevenson v. Belknap
261
V. Bcuce
343
V. Gray
29
V. Hardy
61
V. State
369
Stewart, In re
86
V. Bailey
361
V. Baker
445
V. Ball
120 a
V Menzies
26,27
Stidham v. Matthews
58, 94, 150
Stiff V. Keith
402
Stigall V. Turney
248
Stigler V. Stigler
337
Stikman v. Dawson
425
Stiles V. Granville
267 a
V. Stiles
190
Stilley V. Folger
173
Stillman v. Ashdown
175
V. Young
324
Stillwell V. Adams
£8, 143, 148
Ixviii
TABLE OF CASES.
Stinson i\ Prescott
Stock V. McAvoy
Stockton V. Farley
V. Wooley
Stofhof V. Reed
Stokes V. Brown
V. Hatclier
V. Shannon
Stoltz V. Daering
Stone V. Dennie
V. Dennison
V. Dorrett
V. McNair
V. Stone
V. Wood
Stoolfas V. Jenkins
Storey's Appeal
Storke v. Storke
Story V. Johnson
V. Marshall
V. Perry
V. Walker
Stoughton's Appeal
Stout V. Merrill
V. Perry
Straino v. Wright
Strangeways v. Robinson
Stratton v. Stratton
Stratton's Case
Strickland v. Bartlett
('. Holmes
Stringer v. Life Ins. Co.
Stripling v. Ware
Strode v. Magowan
V. Strode
Strohl V. Levan
Strong V. Beronjon
V. Birchard
V. Foot
V. Marcy
V. Moe
V. Smith
Strong, Catherine, Re
Stroop V. S warts
Strother v. Law
Stroup V. State
Strouse v. Denman
Stuart V. Kirkwall (Lord)
StubbvS V. Dixon
Studwell V. Shapter
Stultz V. Stultz
Stumpf V. Stunipf
Stumps r. Stumps
Sturgis y. Champneys
V. Corp
Sturtevant v. Starin
Stutely V. Harrison
Sudderth v. McCombs
Sullivan v. Blackwell
i\ Horner
V. Sullivan
Section
Section
212
Sullivan's Case
305
272
Sumner v. Conant
94
58
V. Howard
361, 385
206
V. Sebec
267 a
374
Sutfin V. People
279
435
Sutherland r. GofE
843
420
Sutpher i'. Fowler
813
148
Sutton V. Aiken
146
231
V. Chetwynd
174
114
V. Hoffman
261
443
Swafford v. Ferguson
405, 409
300, 316
Swain v. Duane
117
61
Swan V. Dent 342
353, 382
265
V. Wiswall
94
194
Swartwout v. Oakes
295
426
V. Swartwout
318
272
Swasey v. Vanderheyden
414
340
Sweet V. Sweet
316
438
Swift, Re
316
187
V. Bennett
414
413
V. Kelly
24
313
V. Law lor
258
350, 356
V. Wenman
221
446
Swindall v. Swindall
354
116
Swing V. Woodruff
68
446
Switzer v. Switzer
218
278
Sword V. Keith
251
183
Sykes v. Chadwick
190
343
Sym's Case
88
175
367
437
T.
245
225
T. V. D.
20
21
T. V. M.
20
263
Taff V. Hoomer
307
343
Taft V. Sergeant
435
303
Talbot V. Earl of Shrewsbury
235, 334
413
V. Hunt
226
450
V. Marsh field
163
388, 370
V. Provin
448
83
Tallmadge r. Grannis
89
399
Tallman v. Jones
167
75
Tanham v. Nicholson
271
95
Tanner v. Skinner 238,
354, 372
311, 377
Tarbell v. Tarbell
173
361
Tarble, Matter of
420
134
Tate V. Pene
225
237
V. Stevenson
811
425
V. Tate
445
221
Tatum V. Holliday
385
137
Taunton v. Plymouth
267 a
450
Tawney v. Crowther
179
85
Taylor, hi re 249,
299, 300
131
V. Bemiss
345
69
V. Crocker
402
307
V. Dansby
402
353
V. Glanville
138
388
V. Hite
347, 352
242
V. Jeter
230
24,53
V. Kilgore
343
TABLE OF CASES.
Ixix
Section
Taylor v. Rountree 114
(;. Shelton 64
r. Staples 270
V. Stone 124
* V. Taylor 388
Teagarden v. McLaughlin 263
Teal V. Sevier 232
Tealie o. Hoyt 386
Teasdale v. Braithwate 178
Tebbetts v. Hapgood 63
Tebbs I'. Carpenter 352
Teller v. Bishop 187, 188
Temple v. Haw ley 399
Templeton v. Stratton 237
Tenbrook i-. M'Colin 320
Tennant v. Stoney 124
Tennessee Hospital v. Fugna 367
Tenney v. Evans 344, 351
Terry v. Belcher 53
V. Dayton 272
V. McClintock 435, 438
V. Tuttle 363
Terry's Appeal 212
Teynliani's (Lady) Case 235, 305
Texas R. R. v. Crowder 259
Thacher v. Phinney 89
Thacker v. Henderson 347
Thackeray's Appeal 350
Thatcher v. Dinsmore 343
Thayer v. Goff 93
V. White 241
Thing V. Libbey 414, 435
Thoenberger v. Zook 94
Tholey's Appeal 26, 29
Thomas, In re 305, 306
V. Bennett 343
V. Burrus 316
V. Desmond 168
v. Dike 443, 449
V. Harkness 127, 190
V. Spencer 110
V. Strickland 437
V. Thomas 61, 237
V. Williams 366, 443
V. Wood 90. 92
Thomason v. Boyd 435
Thompson v. Boardman 350
!v Brown 356
V. Dorsey 241
V. Gaillard 439
V. Harvey 68
V. Howard 260
V. Ketcham 393
V. Lay 435
V. McKusick 123
V. Ross 261
V. Thompson 61
V. Weller 148
V. Young 261
Thon)son v. Thomson 290
Thome v. Dillingham 77
Thorne v. Kathan
Thornton v. Grange
V. McGrath
Thorpe v. Bateman
V. Shapleigh
V. Thorpe
Thrall v. Wright
Throgmorton v. Davis
Thrupp V. Fielder
Thrustout V. Coppin
Thurlovv V. Gilmore
Thurmond v. Faith
Thurston, Re
Thurston v. Holbrook's Estate
Tibbs V. Brown
Tiemeyer v. Turnquist
TifEt V. TifEt
Tillexan v. Wilson
Tillinghast v. Holbrook
Tillman v. Shackleton
V. Tillman
Tilloson V. M'Crullis
Tillotson, In re
Tilton V. Russell
Timmins v. Lacy
Tinsley v. Roll
Tipping V. Tipping
Tipton V. Tipton
Tobey v. Smith
Tobin V. Addison
V. Wood
Todd V. Clapp
V. Lee
V. Weber
Toler V. Slater
Tolland v. Stevenson
Tompkins v. Tompkins
Tompson v. Hamilton
Tong V. Marvin
Tooke V. Newman
Tornens v. Campbell
Torrington v. Norwich
Torry v. Black
V. Frazer
Tourville v. Pierson
Towle V. Dresser
V. Sawey
V. Swazey
V. Towle
Towne v. Wiley
Townley v. Chicago R.
Townsend v. Burnham
V. Downer 8
V. Kendall 328, 333
Tracy v. Keith 58
Trader v. Lowe 160, 389
Trainer v. Trumbull 414 a
Trapnall v. State Bank 401
Trask v. Stone 450
Traver i-. Eighth Avenue R. R. 262
Tremain's Case 235, 340
Section
66
273
361
273
66,71
22
412
75
436
87
433
364
354
308
77
144 a
263, 423
208
409
164
90,92
268
363
413
225
117
208
446
58
343
437
169, 437
143, 164
279
90
273
241
407
304
145
268
251
343, 350
353
94
407, 446 a
420
206
118, 189
424
428
241
238.
Ixx
TABLE OF CASES.
Section
Tremont v. Mt. Desert 269
Trenton Banking Co. v. Woodruff 123
Trevor v. Trevor 182
Trieber v. Stover 167, 168
Trimble v. Dodd 238, 376
Trlplett V. Graham 162
Tritt V. Colwell 83
Tritt's Adm'r v. Caldwell's Adm'r 84
Troutbeck v. Boughey
105
106
Trowbridge v. Carlin
44
Troxell v. Stockbenger
155
Truebood v. Truebood
406
Trull V. Eastman
272
Truss V. Old
321,
343
350
Tubbs V. Galewood
94
V. Harrison
237
273
Tucker v. Andrews
181
V. Bean
448
V. McKee
337
V. Moreland
407,
439
440
V. State
48
Tudor V. Samyne
88
Tugnian v. Hopkins
106
Tugwell V. Scott
281
Tullett V. Armstrong 87, 103,
107,
110,
134
189
Tune V. Cooper
82
Tunison v. Chambly
437
V. Tunison
439
Tunks V. Grover
162
Tupper V. Caldwell
412
Turbeville v. Whitehouse
413
Turner, In re
305
V. Collins
271
V. Cook
53
V. Crane
83
V. Kelly 122,
123,
124
136
V. Turner
240
V. Vaughan
279
Turner's (Sir Edward^ Case
88
Turnley v. Hooper
186
Turpin v. Turpin
401,
402
4117
Turtle V. Miincy
80
Tuttle V. Chicago R.
77
V. Detroit R.
492
V. Hoag
166
V. Holland
64
V. Northrop
367
Tweedale v. Tweedale
390
Tyler v. Arnold
241
V Rurrington
273
V. Lake
105
V- Reynolds
232
w. Tyler
394
Tyrrel v. Hope
105
Tyrrell's Case
161
Tyson v. Latrobe
351
V. Sanderson
354
368
V. Tyson
22
u.
Section
U. V. J.
Uhl V. Commonwealth
Uhrig V. Horstman
Underbill v. Dennis
V. Morgan
Underwood v. Brockman
Unger v. Price
United States v. Bainbridge
20
50
164, 166
304, 305
189
343
188
252 a,
256, 401, 420
I'. Green 248
V. Metz 267 a
United States Bank v. Ennis 187
Unity & Banking Association, In re 403
Updike V. Ten Broeck 269
Urbin v. Grimes 139
V.
Vaden v. Hance 272
Vail V. Meyer 151
r. Vail 124
Van Arnam v. Van Aernam 225
V. Ayers 41
Van Artsdalen v. Van Artsdalen 298
Vanderberg v. Williamson 366, 369
Vanderheyden v. Mallory 128
V. Vanderheyden 375, 376
Vandervoort v. Gould 115
Vandervoort's Appeal 435
Van Donge v. Van Donge 220
Van Doon v. Young £52
Van Duesco v. Van Duesco 398
Van Dyke v. Wells 148
Van Epps v. Van Deusen 390
Van Horn, Matter of 388
Van Schoyck v. Backus 269
Van Sittart v. Van Sittart 216, 251
Van Valkenburg v. Watson 241
Van Zant v. Davies 272
Vane v. Smith 424
V. Vane 280
Varick v. Edward 272
Varney v. Young 267, 268
Vartie v. Underwood 94, 95, 137
Vason V. Bell 174
Vaughan v. Parr 437, 439
V. Vanderstegen 133
Veal V. Fortson 402
Veld V. Levering 335
Vernon v. Marsh 112
Vidal V. Commajere 232
Villard V. Chorin 338
ViUareal v. Mellish 245, 287
Vincent v. Parker 89
V. Starkey 343, 366
V. State 398
Vine V. Saunders 75
Viser r. Scruggs 146, 148
TABLE OF CASES.
Ixxi
Section
Vizoreau v. Pegratn 133
Voessiiig V. Vuessing 339, 344
Voltz ('. Voltz ZbQ
Voorliees v. Presbyterian Church 102
Voorhies v. Voorliies 439, 440
Voris V. State 366, 367
Vossol V. Cole 261, 262
Vreeland v. Ilyno 80
V. Vreeland 118
w.
Wade, Succession of 58
V. Cantrell 189
V. Labdell 372, 388
V State ;-i98
Wadsworth v. Connell 299
Wagener v. Bill 60
Waginire v. Jetmore 18
Wagoner v State 895
Wa-istaff V. Smith . 105
Wailing v. Toll 413
Wainwright v. Wilkinson 406
Wait V. Bovee 193
V. Wait 221
Waite V. North Eastern R. R. Co. 429
Waitliman v. Wakefield 61
Wakefield n. Mackay 28
Wakenian v. Sherman 436
Waldo V. Goodsell 78
Waldron, Case of 248
Walkenhout v. Lewis 407
V. Mulveean 237
Wales V. Miner 41
V. Newbould 155, 190
Walker v. Armstrong 183
V. Beal 217
V. Brown 337
V. Crowder 339
V. Davis 424
V. Ellis 440, 442
V. Howard 7
I'. Laighton 63, 69
V. Kearny 122
V. Simpson 61, 69
V. Stringfellow 217
V. Thomas 378
V. Walker 83, 218, 272
Walker, Anna, Matter of 349
Wall V. Rogers 104
V. Stanwick 285, 321, 325, 326
Wallace v. Brown 361
V. Campbell 806
V. Finberg 143
V. Holmes 352
V. Latham 435, 439
V. Lewis 239
V. Morse 388, 424
V. Rowley IGT
V. Wallace 182
Waller v. Amistead
V. Campbell
Wallingford r. Allen
Wallis V. Bardwell
Walsh V. Powers
Walter v. Walter
Walton V. Broadus
V. Erwin
Wambold v. Vick
Wann v. People
Waples V. Hastings
Ward V. Dulaney
V. Roper
V. Sliallet
V, Thompson
V. Ward
Warden v. Jones
Wardlaw v. Wardlaw
Wardle v. Claxton
Wardwell v. Hofer
V. Wardwell
Warp V. Bruch
V. Cartlidge
V. Coleman
V. Gardner
V. Palhill
V. Ware
V. Wilson
Warfield v. Bobo
V. Fisk
Waring, In re
V. Darnall
V. Waring
Warlock v. White
Warner v. Crouch
V. Heiden
Warren, Ex parte
V. Haley
V. Halsey
V. Jennison
V. Ranney
Warren der v. Warrender
Warwick v. Bruce
V. Cooper
V. Hawkins
Washband v. Washband
Washburn v. Hale
V. Sproat
Waterbury v. Netherland
Waterman v. Wright
Waters v. Ebral
Watkins ". DeArmond
V. Law ton
V. Peck
V. Thornton
Watkins, Ex parte
Watson V. Broadus
V. Cross
V. Hensel
V. Riskamire
V. Robertson
Section
388
377
120, 191
350, 412
138
120
117
375
252
367, 376
406
18
240, 832
188
198, 200
47, 246, 247
175
388
105
329
290, 299
437
481
303
186
347, 357
83, 313, 352
308
380
380
399
352
46
225
94
61
293
112
124
203
190
216, 218
432
402
105
402
80
203
206
373
347
66
453
350
420
301, 326
124
414
413
187
90,92
Ixxii
TABLE OF CASES.
Watson V. Stone
V. Tlmrber
V. Warnock
V. Watson
Watson's (Miss) Case
Watt V. Algood
V. Watt
Watts V. Ball
V. Cook
V. Owen
V. Steele
Waugh V. Emerson
Waul V. Kirkraan
Way V. Peck
Weaver v. Carpenter
V. Jones
Weber v. Hannibal
Webber v. Spaiinhake
Webster i'. Bebinger
V Conley
V. Hildreth
V. Webster
Weed V. Beebe
V. Ellis
V. Emerson
Weeks v. Holmes
V Latham
V. Leighton
V. Merrill
V. Pacific R. R.
Weisker v. Lowenthal
Welch, Re
V. Berry
;;. Burris
V. Welch
Weld V. Walker
Weldon v. Keens
11. Little
Wellborn v. Weaver
Weller i'. Baker
V. Sugget
Wellesley v. Duke of Beaufort 237,
238, 239, 288
V. Wellesley 235, 246
Wells V. Andrews 303
V. McCall 129
V. Perkins 273
V. Tliorman 136
V. Tyler 83
V. Wells 391
Well's Estate, In re 281
Wendell's Lease 311
West V. Erissey 182
V. Forsythe 316, 319
V. Gruggs 412
V. Howard 175
V. Perry 407, 435
V. Strouse 261
V. West 353
Westbrook v. Comstock 385
Westerman v. Westerman 63, 181
Section
353
137
805, 307
261
110
317, 329
198
201
361
225
238
421
7,59
146, 148
405, 406, 439
405, 446
343
61
886
351
153
21
438
343
94
252 a, 200
443
268, 443
241
429
64
249
337
339
401
199
305
350
77
89
328
Section
Westervelt v. Gregg 114
Westgate v. Munroe 143
Westmeatb v. Westmeath 216
Weston V. Stewart 345
Wharton v. Macleugh 411
V. Markensie 411, 413
Wheaton v. East 405, 439
V. Phillips 167
Wheeler v. Hotchkiss 221
Wheeler Man'f g Co. v. Ahrenbeck 407
V. Morgan 72
Wheeling v. Trowbridge 77
Wheelwright v. Greer 279
WlieldaleV. Partridge 357
Wliichcote v. Lyle's Ex'rs 399
Whipp V. State 48
Whipple V. Dow 239
V. Giles 61
V. Warren 257
Whitaker's Case 313
Whitcomb i\ Barre 77, 78
V. Joslyn 425
White V. Bettis 487
V. Branch 446
r. Campbell 262
V. Cox 899
V. Dance 206
V. Flora 438, 252 a, 267 a
V. Hildreth 203
V. Mann 241
V. McMett 143
V. Murtland 261, 202
V. Nesbit 353
V. Oeland 162, 386
V. Palmer 338
V. Parker 848, 352, 353, 386
V. Pomeroy 364
V. Ross 225
V. Story 143
White's Appeal 155
Whitehead v. Jones 385
Whiting V. Dewey 351
V. Earl 267
V. Stevens 94
Whitingham's Case 899
Whitman v. Delano 75
Whitmarsh v. Robertson 87
Whitney v. Beckwith 162
V. Dulch 401, 406, 408, 435
V. Whitney 316, 372
Whittlesey v. Fuller 193
Whitworth v. Carter 58
Whvwall V. Champion 408
Wic'kison v. Cook 389
Wieman v. Anderson 164
Wier V. Still 28
Wiggins V. Keizer 279
Wightman v. Wightnian 16
Wiiber, In re 206
Wilburn v. McCalley 129
Wilcox V. Roath 435
TABLE OF CASES.
Ixxiii
Section
Wilcox V. Todd
152
Wilcox's Settlement, Re
281
Wilder v. Aldrich
189
V. Ember
450
Wildman v. Wildman
83
Wilhelm v. Hardman
413, 443
Wilkes V. Rogen
239
Wilkinson v. Charlesworth
83
V. Gibson
221
V. Parry
394
V. Wilkinson
154
Willard v. Dow
183
V. Easthara 6,
139,
143, 158
17. Fairbanks
343
V. Stone
402
Willet V. Commonwealth
395
Willick V. Taggart
352
Willis V. Brooke
446
V. Fox
350, 372
V. Sayres
105
V. Snelling
82
V. Twombly
409, 437
Williams, Case of
204, 356
V. Araory
89
V. Avery
124
V. Baker
96
V. Barner
269
V. Brown
405
V. Carle
181
V. Duncan
363
V. Harrison
368, 404
V. Heirs
397
V. Hugunin
143
148, 157
V. Hutchinson
261
262, 273
V. King
120, 146
V. Mabee
440
V. Maull
124, 191
V. McGahay
67
V. McGrade
116
V. Mercier
57
V. Moore
401
, 407, 438
V. Morton
361
, 367, 369
V. Norris
437
V. Powell
389
V. Prince
67
V. Walker
187
V. Warren
301
V. Wiggard
• 3H3
V. Wilbur
151
V. Williams 26
226
, 277, 441
Williams's Appeal
187
Williams's Real Property
201
Williamson v. Warren
361
Wills' Appeal
350, 352
AViUiston r. White
379
Willoughby, Re
303
Wilson, Re
368
V. Babb
225
V. Branch
447
t;. Breeding
198
V. Ensworth
261
Wilson V. Ford
v. Glassop
V. Jones
V. Kohlheim
V. Life Ins. Co.
V. McMillan
V. Wilson 57,
Wilt V. Vickers
Wilthaus V. Ludicus
Wilton V. Hill
V. Middlesex R.
Wimberley v. Jones
Winchester v. Thayer
Windland v. Deeds
Windsor v. Bell
Wing V. Goodman
V. Rowe
V. Taylor
Winn V. Benburg
V. Sprague
Winslow V. Crocker
V. Winslow
r. People
Winslowe v. Tighe
Winsmore v. Greenbank
VVinstell V. Hehl
Winter v. Walter
Winton v. McAttee
V. Newcommen
Wise V. Norton
Wiser v. Blackley
I'. Lockwood
Withers v. Hickman
Witman's Appeal
Witsell V. Charleston
Witty V. Marshall
Wolfe V. State
Wollaston v. Tribe
Womack v. Austin
I'. Womack
Wonell's Appeal
Wood, Re
V. Adams
V. Blacks
V. Boots
V. Chetwood
V. Corcoran
V. Downes
. V. Gale
V. Guild
V. Kelly
V. Losey
V. Mather
V. Shurtleff
V. Simmons
V. Stafford
V. Terry
V. Truax
V. Washburn
V. Wood
Woodbeck v. Havens
Section
61, 103
66
186, 143
270
443
252 a, 270
216, 239, 269
259, 262
164
134
258
438
402, 408
273
155
53
388
16
348
268
82
343
377
87
259
90
120 a
316
237
313
366
19
369
308
129, 137
235
377
174
388
446
353
389
30
370, 371, 372
347
53
268
388
335
241
61
413
363
53
225
318
58,97
351, 444
368
120, 127, 248
162
Ixxiv
TABLE OF CASES.
Section
Woodberry v. Hammond 372, 377
"Woodcock V. Reed 164
Woodman v. Chapman 66
V. Rowe 449
V. Woodman 198
"Woodmansie v. Woodmansie 378
"Woodmeston v. Walker 103
Woodruffe v. Cox 85
V. Logan 420
Woodruni v. Kirkpatrick 124
Woodward, Ex parte 247
V. Anderson 261
V. Barnes 63, 64, 66
V. Seaver 150
V. Spring 328
V. Wilson 161
Woodward's Appeal 347
Woolf V. P^aton 440
V. Pemberton 296, 450
Woolscombe, Ex parte 320
Woolsey v. Brown 145
Woolston's Appeal 187
Worcester ;;. Marcliant 237, 260, 273
Word V. Vance 425
Worrall v. Jacob 216
Worth V. York 118, 119
Worthington v. Cooke 150, 158
V. Curtis 253
Wortman v. Price 155
Worts V. Cubitt 281
Wotton V. Hele 90, 95
Wray v. Wray 67
Wren v. DouneU 273
V. Gayden 323
V. Kiston 350
Wright V. Arnold 389
I'. Brown 150
V. Dean 268
V. Dresser 146
V. Fearis 205
V. Germain 433, 439
V. Leonard 425
V. Maiden & Melrose Railroad
Co. 429
V. Nay lor 333
V. Sadler 193
V. Steele 437
V. Strauss 144 a
V. Vanderplank 271 j
Wright V. Wright
Wyatt V. Simpson
Wych v. Packington
Wyckoff V. Boggs
V. Hulse
Wyman v. Adams
V. Brice
V. Hooper
Wynn v. Benbury
Wythe V. Smith
X.
Xander v. Commonwealth
Ximenes v. Smith
Section
191, 298
89
388
30
353
414
834
386
384
114
366
190
Y.
Yale V. Dederer 141
143, 145, 152
Yates V. Lyon
404
Yeager v. Jones
385
V. Knights
405
V. Merkle
94
Yeager 's Appeal
372
Yeatman v. Yeatman
36
Yeaton v. Yeaton
183
Yopst V. Yopst
81
York V. Ferner
183 a
Yost V. State
367
Young V. Durrall
94
V. Estes
446
V. Fowler
894
V. Graff
137
V. Herman
269
V. Hicks
183
V. Lorain
816
V. McKee
438
V. Paul
68
V. Tarbell
350
V. Young
124, 317, 449
Yourse v. Norcross
96, 405
Zimmerman v. Erhard 169
Zouch V. Parsons 401, 405, 406, 409, 423
THE DOMESTIC RELATIONS.
THE DOMESTIC RELATIONS.
PART I.
INTRODUCTORY CHAPTER.
§ 1. Domestic Relations defined ; Earlier Writers. — The law
of the domestic relations is the law of the household or fam-
ily, as distinguished from that of individuals in the external
concerns of life. Five leading topics are embraced under
this head : First, husband and wife. Second, parent and child.
Third, guardian and ward. Fourth, infancy. Fifth, master
and servant. These will be successively considered in the
present treatise.
Our general rule of classification is borrowed from Kent.^
But other writers on the domestic relations have analyzed
their subject differently. Blackstone omits infancy as a topic
distinct from parent and child, and hence makes but four
divisions.^ The same is true of Eeeve.^ Such a method of
treatment answered the purpose of these writers sufficiently ;
but since their day the topic of guardian and ward has grown
into importance, giving occasion to the discussion of many
principles which apply as well to parent and child, for which
reason it is found better to draw off from both what is peculiar
to neither, and make the new heading of infancy. Bingham,
on the other hand, wrote a treatise in which the only divisions
observed were those of infancy and coverture.* This plan
would be found defective for a work like the present ; for, in
1 2 Kent, Com. Lee. 26-32. » Reeve, Dom. Rel.
2 1 Bl. Com. Lee. 14-17. * Bing. Inf. & Gov.
3
§ 1 THE DOMESTIC RELATIONS. [PART I.
the first place, the subject of master and servant must be
ignored altogether ; and, secondly, that of guardian and ward
cannot receive the distinctive treatment it deserves. Besides,
the very juxtaposition of two such words as "infancy" and
" coverture " suggests a similitude neither flattering to woman
nor in accordance with the present law of husband and wife,
as will fully appear hereafter. Eraser, who writes for readers
of the civil, or rather the Scotch, law, while otherwise clas-
sifying like Blackstone, adds the relation of master and ap-
prentice to that of master and servant,^ in which respect his
example is not to be imitated by common-law writers. Upon
the whole, therefore, the rule of Kent seems to us the pref-
erable one, as being concise, comprehensive, and well adapted
to the present state of English and American law.
It is curious to notice that all of these writers — and there
are none else of standard authority who profess to occupy the
whole subject — plunge at once into the law of their leading
topics with nothing by way of general introduction ; nothing
to indicate to the reader whither they propose leading him.
Not one has attempted to draw the chart which shall deter-
mine his legal bearings. Nor is the definition of the term
" domestic relations " to be found in the books above specified.
Indeed, were it not for the title-page of Eeeve's work, and a
few casual passages in Kent's Commentaries, where the same
words occur, one might ask how the expression " domestic
relations " crept into general use among lawyers. Blackstone
uses the terms " private economical relations," and " relations
in private life;" words which of themselves would seem to
give a much wider scope to our subject.^ But Blackstone
at all times manifests a strong predilection for independent
analysis, with special reference, moreover, to the arrangement
of his course of lectures ; and in this particular instance the
context, as well as the classification, seems to show that
" domestic relations " was the topic in his mind. Fraser's
1 Fraser.Doni. Rel. (Scotch), 2 vols, standing in the public relations of
2 1 Bl. Com. Lee. 14. The writer magistrates and people ; and the word
had just finished discussing at length " private " marks the desired con-
the rights and duties of persons as trast.
4
PART l] INTRODUCTORY. § 2
complete title is "personal and domestic relations." Not-
withstanding all this it is certain that " domestic relations "
is now the well-sanctioned title of that law which embraces
the topics specified by us at the outset, as those who exam-
ine the digests of reported cases and the codes of our leading
States can testify. To legal precision in this respect, Reeve
certainly contributed not a little by the choice of a suitable
title for his volume, so long the standard text-book for
English and American students.
§ 2. Plan of Classification, &c. — Starting, then, with a defi-
nition simple, natural, and well adapted to the materials in
hand, we next ask what are the proper limitations of our sub-
ject ? what should a text-book on the English and American
law of the domestic relations comprise ? (1) As to three
of our topics, — husband and wife, parent and child, and
infancy, — the question is easily answered. Their very names
convey a distinct significance even to the mind of the unpro-
fessional reader. Except it be in the meaning of the word
" infancy," which the law applies to all persons not arrived
at majority, but popular usage restricts to the period of help-
lessness, all intelligent persons agree in the general use of
the terms we have employed. And so strong are the moral
obligations which attend marriage and the training of off-
spring, so intimately blended with tlie welfare and happiness
of mankind are the ties of wife and child, that scarcely any
one grows up w^ithout some knowledge of the general prin-
ciples of law applicable to these topics, and particularly of such
of the rights and duties as concern the person rather than the
property. For positive law but enforces the mandates of the
law of nature, and develops rather than creates a system.
(2) Yet even here it should be observed by the profes-
sional reader that the term "husband and wife" is acquiring
at law a more limited and technical sense than formerly. The
idea of marriage involves both the entrance into the relation
and the relation itself ; and akin to marriage celebration is
the dissolution of marriage by divorce, or what we may term
our recognized legal exit from the relation. Hence marriage
and divorce constitute an important topic by themselves; and
5
§ 2 THE DOMESTIC KELATIONS, [PART I.
we find treatises which profess to deal with these alone.
Marriage and divorce, moreover, have in England pertained
until quite recently to the peculiar jurisdiction of ecclesias-
tical courts, constituting what is termed an ecclesiastical law.^
The rights and duties which grow out of the marriage rela-
tion, on the other hand, still remain for separate discussion:
the consequence of the celebration ; the effect of marriage
upon the property of each ; the personal status of the parties,
— in short, what new legal responsibilities are assumed, and
what legal privileges are gained by the two persons who
have once voluntarily united as husband and wife. It is to
this latter subdivision, rather than the former, that the title
of husband and wife seems at the present day to apply.
Reeve devotes but a brief chapter to marriage and divorce.
Kent separates the subdivisions completely, applying the title
of husband and wife as above. Yet Blackstone, writing be-
fore either, had devoted two thirds of his lecture on husband
and wife to the treatment of marriage and divorce alone,
and very briefly disposed of the rights and disabilities of
the marriage union under the same general heading. The
many and rapid changes to which the entire law of husband
and wife has been latterly subjected ; the growth of divorce
legislation on the one hand, and of property legislation for
married women on the other, fully justifies a subdivision so
important. We shall subordinate, then, the topic of marriage
and divorce to that of the marriage status, following, in this
respect, the modern legal usage ; at the same time noting that,
if some special term could be coined to distinguish the sub-
division husband and wife from that general division which
bears the same name, legal analysis would be more exact.
(3) As to guardian and ward, the limitations of our treatise
are not so easily marked out. In respect of the domestic re-
lations, the guardian is a sort of temporary parent, created by
the law, to supply to young children the place of a natural pro-
tector. But the term " guardian " is used rather indiscriminately
in these days with reference to all who need protection at the
1 Burn, Eccl. Law ; 1 Bishop, Mar. & Div. 5th ed. §§ 48-65.
6
PART I.] INTRODUCTORY. § 2
law. Thus we have guardians of insane persons, guardians of
spendthrifts, and even guardians of the poor. Blackstone treats
of these last guardians under the head of public relations ; and
certainly they do not fall within the clear scope of private or do-
mestic relations. Yet the legal principles applicable to one class
of guardians frequently extend as well to all others ; and we
shall hardly expect in these pages to trace with distinctness that
shadowy line which separates the temporary parent from the
town officer ; nor would the consulting lawyer expect us to do
so. Again, a guardian's duties are chiefly with respect to prop-
erty ; and herein they so nearly resemble those of testamentary
trustees that one frequently finds himself gliding unconsciously
from the law of the family into the law of trusts.
(4) With the last topic of the domestic relations — that of
master and servant — the rule of classification becomes even
more uncertain. If servants connected with the household
were alone to be considered in a treatise upon the domestic
relations, the modern cases would be simple and few ; but no
writer has presumed to limit himself to such narrow bounds.
In former centuries this relation had a marked significance.
In these days we dislike to call any man master. The recent
abolition of slavery in the United States has wellnigh removed
all traces of an institution known to the ancient Roman Em-
pire ; elsewhere recognized as the common barbarian accom-
paniment of barbarian triumphs ; and in spirit, if not in the
letter, once fastened upon the common law, while the feudal
system lasted. As one of the domestic relations, this topic of
master and servant is of little present importance in England
or America ; although it has doubtless an existence. In its
analogies, however, or as a relation sub modo, master and ser-
vant has features which the courts constantly regard. Appren-
tices are, without much violation of principle, included under
this head; they are generally bound out during minority and
brought up in families. Clerks are not so readily confined
within the circle of domestic relations as formerly ; and the
same is to be said of factors, bailiffs, and stewards. The em-
ployees of a corporation are frequently designated as servants ;
so are laborers generally. But it cannot be denied that master
7
§ 3 THE DOMESTIC RELATIONS. [PART I.
and servant is rather a repulsive title, and fast losing favor in
this republican country ; that as one of the purely domestic
relations it rarely attracts attention ; and that in sounding its
legal depths one often loses sight of his landmarks, and finds
himself drifting out into the more general subject of principal
and agent.
§ 3. General Characteristics of the Law of Family. — Whether
we consult the facts of history or the inspirations of human
reason, the family may be justly pronounced the earliest of
all social institutions. Man, in a state of nature and alone,
was subject to no civil restrictions. He was independent of
all laws, except those of God. But when man united with
woman, both were brought under certain restraints for their
mutual well-being. The propagation of offspring afforded the
only means whereby society could hope to grow into a per-
manent and compact system. Hence the sexual cravings of
nature were speedily brought under wholesome regulations ;
as otherwise the human race must have perished in the
cradle. Natural law, or the teachings of a Divine Provi-
dence, supplied these regulations. Families preceded nations.
These families at first lived under the paternal government of
the person who was their patriarch or chief. But as they in-
creased, they likewise divided ; their interests became conflict-
ing, and hostilities arose. Hence, when men came afterwards
to unite for their common defence, they composed a national
body, and agreed to be governed by the will of him or those on
whom they had conferred authority. Thus did government
originate. And government, for its legitimate purposes, placed
restrictions upon the governed ; which restrictions thenceforth
were to apply to individuals in both their family and social
relations.^ But the law of the domestic relations is neverthe-
less older than that of civil society. In fact, nations them-
selves are often regarded as so many families; and the very
name which is placed at the head of this work, the legislator
constantly applies to the public concerns of his own country as
contrasted with those of foreign governments.
^ See Burlamaqui, Nat. Law, ch. iv. §§ 6, 9.
8
PABT I.] INTEODUCTORY. § 4
The supremacy of the law of family should not be forgotten.
We come under the dominion of this law at the very moment
of birth ; we thus continue for a certain period, whether we
will or no. Long after infancy has ceased, the general obli-
gations of parent and child may continue ; for these last
through life. Again, we subject ourselves by marriage to a
law of family; this time to find our responsibilities still fur-
ther enlarged. And although the voluntary act of two par-
ties brings them within the law, they cannot voluntarily retreat -
when so minded. To an unusual extent, therefore, is the law
of family above, and independent of, the individual. Society
provides the home ; public policy fashions the system ; and it
remains for each one of us to accustom himself to rules which
are, and must be, arbitrary.
So is the law of family universal in its adaptation. It deals
directly with the individual. Its provisions are for man and
woman ; not for corporations or business firms. The ties of
wife and child are for all classes and conditions ; neither rank,
wealth, nor social influence weighs heavily in the scales. To
every one public law assigns a home or domicile ; and this
domicile determines not only the status, capacities, and rights
of the person, but also his title to personal property. There
is the political domicile, which limits the exercise of political
rights. There is the forensic domicile, upon which is founded
the jurisdiction of the courts. There is the civil domicile,
which is acquired by residence and continuance in a certain
place. The place of birth determines the domicile in the first
instance ; and one continues until another is properly chosen.
The domicile of the wife follows that of the husband; the
domicile of the infant may be changed by the parent. Thus
does the law of domicile conform to the law of nature.
§ 4. Law of Husband and Wife now in a Transition State :
Various Property Schemes Stated. — The most interesting and
important of the domestic relations is that of husband and
wife. The law of England and the United States, on this
topic, is now undergoing a remarkable change ; and so un-
settled are its principles at the present time, with reference
to the rights and obligations of the married pair, that the
9
§ 5 THE DOMESTIC RELATIONS. [PART I.
writer has felt constrained to depart somewhat from the usual
plan of law treatises, adopting what might be termed a con-
secutive or historical arrangement of his materials ; since other-
wise the subject would furnish to the reader's mind little else
than a series of unreconciled contradictions. To show clearly
why the later cases conflict with the earlier will at least aid
the future legislator and jurist in their efforts to place the law
of husband and wife upon a firm and just basis; and mean-
while afford to the practising lawyer all the assistance which
he can reasonably expect.
This confused state of the law of husband and wife is exhib-
ited in a contest still going on between two opposing schemes
for adjusting the property rights of the married parties. The
one is the common-law scheme ; the other resembles that of
the civil law. The former is at the basis of our jurisprudence,
English and American. The latter has had a powerful influ-
ence in modern times, moulding the doctrines of the equity
tribunals and shaping recent legislation. Let us examine
these schemes separately, and afterwards a third or interme-
diate scheme, known as that of community.
§ 5. Common-Law Property Scheme. — (1) The common-
law scheme makes unity in the marriage relation its cardinal
point. But to secure this unity the law starts with the
assumption that the wife's legal existence becomes suspended
or extinguished during the marriage state; it sacrifices her
property interests, and places her almost absolutely within
her husband's keeping, so far as her civil rights are con-
cerned. Her fortunes pass by marriage into her husband's
hands, for temporary or permanent enjoyment, as the case
may be ; she cannot earn for herself, nor, in general, contract,
sue, or be sued in her own right ; and this, because she is not,
in legal contemplation, a person. The husband loses little or
nothing of his own independence by marriage; but in order
to distribute the matrimonial burdens with some approach to
equality, the . law compels him to pay debts on his wife's
account, which he never in fact contracted, not only where
she is held to be his agent by legal implication, but whenever
it happens that she has brought him by, marriage outstand-
10
PART I.] INTRODUCTORY. § 6
ing debts without the corresponding means of paying them.
Husband and wife take certain interests in one another's lands,
such as curtesy and dower, which become consummate upon
survivorship. In general, their property rights are summarily
adjusted by the law with reference rather to precision than
principle. On the whole, however, the advantages are with
the husband ; and he is permitted to lord it over the wife
with a somewhat despotic sway ; as the old title of this sub-
ject — laron aiid feme — plainly indicates. The witty observa-
tion is not wholly inappropriate, that, in the eye of the common
law, husband and wife are one person, and that one is the
husband.^
§ 6. Civil-Law Property Scheme. — (2) The civil-law scheme
pays little regard to the theoretic unity of a married pair. It
looks rather to the personal independence of both husband and
wife. Each is to be protected in the enjoyment of property
rights. In the most polished ages of Roman jurisprudence we
find, therefore, that husband and wife were regarded as distinct
persons, with separate rights, and capable of holding distinct
and separate estates. The wife was comparatively free from all
civil disabilities. She was alone responsible for her own debts ;
she was competent to sue and be sued on her own contracts ;
nor could the husband subject her or her property to any lia-
bility for his debts or engagements.^
The more minute details of the common-law scheme of hus-
band and wife belong to the main portion of this volume, and
need not here be anticipated. Not so, however, with the civil-law
scheme ; and we proceed to elaborate it somewhat further. In
the earlier period of Roman law the marital power of the hus-
band was as absolute as the imtria potestas. But before the
time of the Emperor Justinian it had assumed the aspect already
noticed ; in which it is to be distinguished from all other codes.
The comiminio honornvi, which is to be found in so many modern
systems of jurisprudence whose basis is the Roman law, treats
the wife's separate property and separate rights as exceptional.
The peculiarities of the civil law in this respect may, perhaps,
1 See post, Part II., as to coverture ^ i Bvirge, Col. & For. Laws, 202,
doctrine. 203.
11
§ 6 THE DOMESTIC RELATIONS. [PART I.
be referred to the disuse into which formal rites of marriage had
fallen. Formal marriage gave to husband and wife a commun-
ity of interest in each other's property. But marriage j)e,r itsum,
or by cohabitation as man and wife, which became universally
prevalent in later times, did not alter the status of the female ;
she still remained subject to her father's power. Hence parties
united in a marriage ixr usum acquired no general interest in
one another's property, but only an incidental interest in certain
parts of it. The wife brought her do^ ; the husband his miti-
dos ; in all other property each retained the rights of owners
unaffected by their relation of husband and wife. The dos and
anti-dos were somewhat in the nature of mutual gifts in con-
sideration of marriage. Every species of property which might
be subsequently acquired, as well as that owned at the time of
marriage, could be the subject of dotal gift. The father, or other
paternal ancestor of the bride, was bound to furnish the dos, and
the husband could compel them afterwards, if they failed to do
so ; the amount or value being regulated according to the means
of the ancestor and the dignity of the husband. This pecuniary
consideration appears to have influenced the later marriages to a
very considerable extent. And while the husband had no con-
cern with the wife's extra-dotal property, — since this she could
manage and alienate free from all control or interference, — over
her dotal property he acquired a dominion which was determin-
able on the dissolution of the marriage, unless he had become
the purchaser at an estimated value. As incidental to this do-
minion he had the usufruct to himself, he might sue his wife
or any one else who obstructed his free enjoyment, and he could
alienate the personal property at pleasure. But he could not
charge the real estate unless a purchaser ; and upon his death
the wife's dotal property belonged to her, or, if she had not
been emancipated, to her father; and to secure its restitution
after the dissolution of marriage, the wife had a tacit lien upon
her husband's property. Of the anti-dos, or donatio 'pro'pUr nup-
tias, not so much is known ; but this appears to have generally
corresponded with the dos ; it was restored by the wife upon the
dissolution of marriage, and was regarded as her usufructuary
property in like manner. It was not necessarily of the same
12
PART I.] INTRODUCTORY. § 7
value or amount with the wife's dos. Over his general prop-
erty the husband retained the sole and absolute power of alien-
ation, and his wife had no interest in it, nor could she interfere
with his right of management.^
But the civil law allowed agreements to be made by which
these rights might be regulated and varied at pleasure. And
by their stipulations the married parties might so enlarge their
respective interests as to provide for rights to the survivor.^
These agreements were not unlike the antenuptial settlements
so well known to our modern equity courts, which we shall
consider in due course hereafter.
§ 7. Community Property Scheme. — (3) The communio
honorum, or community system, relates to marital property, in
which respect it occupies an intermediate position between
the civil and common law schemes. The communio bo7io7'um
may have been part of the Eoman law at an earlier period
of its history, but it had ceased to exist long before the com-
pilation of the Digest ; though parties might by their nuptial
agreement adopt it.^ This constitutes so prominent a feature
of the codes of France, Spain, and other countries of modern
Europe, whence it has likewise found its way to Louisiana,
Florida, Texas, California, and other adjacent States, once
subject to French and Spanish dominion, and erected, in fact,
out of territory acquired during the present century upon
the Mississippi, the Gulf of Mexico, and the Pacific Ocean,
that it deserves a brief notice.
The relation of husband and wife is regarded by these
codes as a species of partnership, the property of which, like
that of any other partnership, is primarily liable for the pay-
ment of debts. This partnership or community applies to all
property acquired during marriage ; and it is the well-settled
rule that the debts of the partnership have priority of claim
to satisfaction out of the community estate. Sometimes the
community is universal, comprising not only property acquired
during coverture, but all which belonged to the husband and
1 1 Burge, Col. & For. Laws, 202; s 1 Burge, Col. & For. Laws, 202 ; 76.
lb. 26.3 et. seg. 263 et seq.
2 1 Burge, Col. & For. Laws, 273.
13
§ 7 THE DOMESTIC RELATIONS. [PAET I.
wife before or at their marriage.^ It is evident, therefore, that
the provisions of such codes may differ widely in different
States or countries. The principle which distinguishes the
community from both the civil and common law schemes is,
however, clear; namely, that husband and wife should have
no property apart from one another.
Under modern European codes this law of community em-
braces profits, income, earnings, and all property which, from
its nature and the interest of the owner, is the subject of his
uncontrolled and absolute alienation ; but certain gifts made
between husband and wife in contemplation of marriage are
of course properly excluded.^ Whether antenuptial debts are
to be paid from the common property, as well as debts con-
tracted while the relation of husband and wife continues,
would seem to depend upon the extent of the communio bono-
rum, as including property brought by each as capital stock
to the marriage, or only such property as they acquire after-
wards.^ The codes of modern Europe recognize no general
capacity of the wife to contract, sue, and be sued, as at the
later civil law. On the contrary, the husband becomes, by
his marriage, the curator of his wife. He has, therefore, the
sole administration and management of her property, and
that of the community ; and she is entirely excluded in every
case in which her acts cannot be referred to an authority,
express or implied, from her husband.* Hence, too, all debts
and charges are incurred by the husband. The community
ceases on the termination of marriage by mutual separation
or the death of either spouse.^ And the various codes pro-
vide for the rights of the survivor on the legal dissolution
of the community by death.
The reader may readily trace the influence of the community
system upon the jurisprudence of Louisiana and the other
States to which we have referred, whose annexation was sub-
sequent to the adoption of our Federal Constitution, by exam-
1 1 Burge, Col. & For. Laws, 277 nity ; but the Spanish law included
et seq. both real and personal estate. Child-
2 1 Bur^e, Col. & For. Laws, 281, ress v. Cutter, 16 Mo. 24.
282. By the French law only the per- » 1 Burge, 294.
sonal estate entered into the comniu- * lb. 296, 301. ^ lb. 303, 306.
14
PAKT I.] INTRODUCTORY. § 7
ining their judicial reports. The Civil Code of Louisiana, as
amended and promulgated in 1824, pronounced that the part-
nership or community of acquets or gains arising during
coverture should exist in every marriage where there was
no stipulation to the contrary. This was a legal consequence
of marriage under the Spanish law.^ The statutes of Texas,
Florida, Missouri, California, and other neighboring States, are
characterized by similar features. But all of these laws have
been modified by settlers bringing with them the principles of
the common law. So, too, the doctrines of separate estate,
revived in modern jurisprudence, are introduced into the legis-
lation of these as other American States.'-^ The American ,
community doctrine, as we may term it, is that all property '
purchased or acquired during marriage, by or in the name of
either husband or wife, or both, including the produce of
reciprocal industry and labor, shall be deemed to belong
privia facie to the community, and be held liable for the
community marriage debts accordingly.^ But it will be per-
ceived that, in our American codes, community, as an inci-
dent to marriage property, is only a presumption, which may
be overcome in any instance by proof that the property was
acquired as the separate estate of either the husband or wife.
This community rule, moreover, as it is evident, does not
apply to the property which either husband or wife brought
into the marriage; such property, by the codes, being dis-
tinctly kept to each spouse apart as his or her separate prop-
1 Art. 2312, 2369, 2370 ; 2 Kent, Cal. 428 ; Eslinger v. Eslinger, 47 Cal.
Com. 183, n. 62. The wife's earnings, unless given
2 Texas Digest, Paschal, " Marital her by the husband, and likewise prop-
Rights ; " Cal. Civil Code, " Husband ert}' bought witli such earnings, must
and Wife ; " Parker's Cal. Dig. " Hus- belong to the community. Johnson i\
band and Wife ; " Walker v. Howard, Burford, 39 Tex. 242 ; Ford v. Brooks,
84 Tex. 478; Caulk v. Picou, 23 La. 35 La. Ann. 157. But see Fisk v.
Ann. 277. And see Forbes v. Moore, Flores, 43 Tex. 340. The husband, as
32 Tex. 195. head and master of the community,
3 Louisiana Civil Code, §§ 2369- has the right to dispose of its movable
2372; Succession of Planchet, 29 La. effects. Cotton v. Cotton, 34 La. Ann.
Ann. 520 ; Tally v. Heffner, 29 La. 858. For the American community
Ann. 583. Land owned by a spouse doctrine in detail, see Schouler, Hus.
at the time of marriage does not fall & Wife, §§ 339-345.
into the community. Lake v. Lake, 52
15
§ 8 THE DOMESTIC RELATIONS. [PABT L
erty.^ And, besides, it is now usually provided by legislation
that property acquired during marriage, "by gift, bequest, de-
vise, or descent," with the rents, issues, and profits thereof,
shall be separate, not common property. The tendency, then,
in our States, where the law of community still exists —
though all have not proceeded in legislation to the same
length — is to limit rather tlian extend its application. The
wife has a tacit mortgage for her separate property, so far as
the law may have placed it in her husband's control ; also
upon the community property from the time it went into his
hands ; and, moreover, she may, on surviving her husband,
renounce the partnership or community, in which case she
takes back all her effects, whether dotal, extra-dotal, heredi-
tary, or proper.2
On the whole, there is in the doctrine of community much
that is fair and reasonable; but in the practical workings of
this system it is found rather complicated and perplexing,
and hence unsatisfactory; while in no part of the United
States can it be said to exist at this day in full force, since
husband and wife are left pretty free to contract for the
separate enjoyment of property, and so exclude the legal
presumption of community altogether;^ and, moreover, the
constant tendency of our Southwestern States is to remodel
their institutions upon the Anglo-American basis, common to
the original States and those of the Ohio valley.
§ 8. The Recent Married 'Women's Acts. — What are famil-
iarly known as the " married women's acts," the product for
1 La. Code, §§ 2316, 2369, 2371 ; codes ; viz., dotal and extra-dotal or
Pinard's Succession, 30 La. Ann. 167; paraphernal.
McAfee v. Robertson, 43 Tex. 591 ; ^ gee Packard v. Arellanes, 17 Cal.
Hanrick v. Patrick, 119 U. S. 156; 525; Waul v. Kirkman, 25 Miss. 609;
Myrick's Prob. 93 ; Schmeltz r. Garey, Succession of McLean, 12 La. Ann.
49 Tex. 49. But tlie wife should not 222; Jones v. Jones, 15 Tex. 143; Ex
mingle lier separate funds with those parte Melbourn, L. R. 6 Ch. 64; La.
of the community in making a pur- Civil Code, §§ 2369-2405; IBurge, Col.
cliase, as of lier separate estate. Reid & For. Laws, 277 e< se*^., where the law,
V. Rochereau, 2 Woods, 151. See of community as it was about half a
Schouler, Hus. & Wife, § 341. century ago is fully set forth ; and the
2 Schouler, Hus. & Wife, §§ 341, learned noteto 2 Kent, Com. 183. See
342. And see ib. §§ .343, 344, as to the also Schouler, Hus. & Wife, §§ 336-
wife's separate property under these 345.
16
PART I.] INTRODUCTORY. § 9
the most part of our American legislation since 1848, and
more recently engrafted upon the code of Great Britain, aim
to secure to the wife the independent control of her own
property, and the right to contract, sue, and be sued, without
her husband, under reasonable limitations. These acts, there-
fore, substitute in a great measure the civil for the common
law. It may be laid down that the common law, in denying
to the wife the rights of ownership in property acquired by
gift, purchase, bequest, or otherwise, did her injustice, and
that a radical change became necessary ; and this is shown,
not only in the legislation of our States, but by the fact tliat
the equity tribunals gradually moulded the unwritten law of
England so as to secure like results.
All this separate property legislation, as well as the equity
doctrines pertaining to the subject in England and the several
United States, will be duly set forth in these pages hereafter,
so far as the chaotic condition of the law at this transition
period will permit. ^ And the modification of the respective
property rights of a married pair by marriage contracts or
settlements will also be considered.^
§ 9. Marriage and Marital Influence. — In the connubial
joys to which every age and nation bears witness, the vast
majority of this globe's inhabitants must have participated
from one era to another, with a certain voluntary adjustment
of the reciprocal burdens, such as relieved both husband and
wife of a sense of bondage to one another. And thus have
the inequalities, the hardships of marriage codes, proved less
in practice than in literal expression. For whatever the
apparent severity of the law, human nature or love's divine
instinct works in one uniform direction ; namely, towards
uniting the souls once brought into the arcana of married
life in an equally honorable companionship. "Woman's weak-
ness has been her strongest weapon ; where her influence
could not overflow, it permeated ; and if her life has been,
legally speaking, at her husband's mercy, her constant study
1 See coverture doctrine, modified ^ Marriage Settlements, post.
by equity and modern statutes. Tart
1 1., jlOXt.
2 17
§ 10 THE DOMESTIC RELATIONS. [PART I.
to please has kept him generally merciful. She has not been
superior to her race and epoch, but on the whole as well
protected, as well advanced, in her day, as those of the
other sex. Except for this, the wife's lot must have been
miserable indeed, even under the most civilized institutions
ever established. Codes and the experience of nations in
this respect show strange inconsistencies : laws at one time
degrading to woman, and yet marital happiness; laws at
another elevating her independence to the utmost, and yet
marital infelicities, lust, and bestiality.^
§ 10. General Conclusions as to the Law of Husband and
Wife. — The conclusions to which this writer's investigation
upon the general subject of husband and wife conducts him,
are these. Marriage is a relation divinely instituted for the
mutual comfort, well-being, and happiness of both man and
woman, for the proper nurture and maintenance of offspring,
and for the education in turn of the whole human race. Its
application to society being universal, the fundamental rights
and duties involved in this relation are recognized by some-
thing akin to instinct, and often designated by that name, so
as to require by no means an intellectual insight; intellect,
in fact, impairing often that devotedness of affection which is
the essential ingredient and charm of the relation. Indeed,
the rudest savages understand how to bear and bring up
healthy offspring. Legal and political systems are accretions
based upon marriage and property ; but in the family rather
1 See examination of ancient mar- the bonds of family affection became
riage systems, including that of the weakened. When the Empire sank
Eoman Republic, in Schouler's Hus. & into utter dissolution woman possessed
Wife, §§ 4-6. a large share of cultivation and per-
Whether, in setting at naught that sonal freedom; yet she had touclicd
identity of interests which is essential the lowest depths of social degrada-
to domestic happiness, the later Roman tion.
scheme was fatally defective, or the This degradation it became the mis-
conjugal decay which ensued was due sion of the Christian Cliurch to correct
to causes more latent, need not here be during the lapse of the dark ages by
discussed. Certain it is, however, that restoring the dignity of marriage, —
wide-spread incestuous intercourse, li- exalting it, in fact, to a sacrament, and
centiousness most loathsome and un- almost utterly prohibiting its dissolu-
natural, followed in the wake of mari- tion. From so strict a view of mar-
tal independence ; and ^s the interests riage, however, Protestant countries in
of husband and wife began to diverge, modern times dissent. lb.
18
PART I.] INTRODUCTORY. § 10
than individualism we find the incentive to accumulation, and
in the home the primary school of the virtues, private and
public. At the same time marriage affords necessarily a dis-
cipline to both sexes ; sexual indulgence is mutually per-
mitted under healthy restraints ; woman's condition becomes
necessarily one of comparative subjection ; man is tamed by
her gentleness and the helplessness of tender offspring, and
for their sake he puts a check upon his baser appetites, and
concentrates his affection upon the home he has founded.
Such is the conjugal union in what we term a state of
nature. And now, while man frames the laws of that union,
as he always does in primitive society, he regards himself as
the rightful head of the family and lord of his spouse; and,
somewhat indulgent of his own errant passions, he makes the
chastity of his wife the one indispensable condition of their
joint companionship. She, on her part, more easily chaste
than himself, views with pain whatever embraces he bestows
upon others of her sex. Her personal influence over him,
always strong, enlarges its scope as the state advances in
arts and refinement, until at length woman, as the maiden,
the wife, and the matron, becomes intellectually cultivated, a
recognized social power in the community. Yearning now
for a wider influence and equal conditions, her attention,
strongly concentrated upon the marriage relation, seeks to
make the marriage terms equal : first, she desires her prop-
erty secured to her own use, whether married or single, and,
indignant at the inadequate remedies afforded under the law
for wifely wrongs, demands the right of dismissing an un-
worthy husband at pleasure ; moreover, as a mother, she claims
that the children shall be hers not less than the father's.
These first inroads are easily made ; for what she demands is
theoretically just. But just at this point the peril of female
influence is developed. Woman rarely comprehends the vio-
lence of man's unbridled appetite, or perceives clearly that,
after all, in the moral purity and sweetness of her own sex,
such as excites man's devotion and makes home attractive, is
the fundamental safeguard of life and her own most powerful
lever in society, besides the surest means of keeping men
19
§ 11 THE DOMESTIC RELATIONS. [PART I.
themselves continent. She forgets, too, that, to protect that
purity and maintain her moral elevation, a certain seclusion
is needful ; which seclusion is highly favorable to those do-
mestic duties which nature assigns her as her own. More is
granted woman. The bond of marriage being loosened, poster-
ity degenerates, society goes headlong ; and the flood-gates of
licentiousness once fully opened, the hand must be strong that
can close them again.
Happiness, we may admit, differs with the capacity, like the
great and small glass equally full, which Dr. Johnson mentions.
Yet marriage is suited to all capacities ; and men and women are
the complement of one another in all ages, neither being greatly
the intellectual superior of the other at any epoch, but the man
always having necessarily the advantage in physical strength
and the power to rule. The best-ordered marriage union for
any community is that in which each sex accepts its natural
place, where woman is neither the slave nor the rival of man,
but his intelligent helpmate ; where a sound progeny is brought
up under healthy home influences. The worst is that where
conjugal and parental affection fail, and all is discord and un-
rest, a sea without a safe harbor. To the household, stability
may prove more essential than freedom, and woman's status
more dignified or more degraded, as the case may be, than the
law assumes to fix it.
§ 11. Remaining Topics of the Domestic Relations; Modern
Changes. — Of the remaining topics to be discussed in the pre-
sent treatise, little need be said by way of general preface.
These have felt the softening influences of modern civiliza-
tion. The common-law doctrine of Parent and Child finds
its most important modifications in the gradual admission of
the mother to something like an equal share of parental author-
ity; in the growth of popular systems of education for the
young ; in the enlarged opportunities of earning a liveliliood
afforded to the children of idle and dissolute parents ; and in
the lessened misfortunes of bastard offspring. Guardian and
Ward, a relation of little importance up to Blackstone's day,
has rapidly developed since into a permanent and well-regu-
lated system under the supervision of the chancery courts,
20
PART I.] INTRODUCTORY. § 11
and, in this country, of the tribunals also with probate juris-
diction ; and much of the old learning on this branch of the
law has become rubbish for the antiquary. The law of Infancy
remains comparatively unchanged. Of Master and Servant, we
have spoken.
We are now to investigate in detail the law of these several
topics. But first the reader is reminded that the office of the
text- writer is to inform rather than invent; to be accurate
rather than original; to chronicle the decisions of others, not
his own desires ; to illumine paths already trodden ; to criticise,
if need be, yet always fairly and in furtherance of the ends of
justice ; to analyze, classify, and arrange ; from a mass of dis-
cordant material to extract all that is useful, separating the good
from the bad, rejecting whatever is obsolete, searching at all
times for guiding principles ; and, in fine, to emblazon that long
list of judicial precedents through which our Anglo-Saxon free-
dom " broadens slowly down."
21
§ 13 THE DOMESTIC RELATIONS. [PAET II.
PART II.
HUSBAND AND WIFE.
CHAPTEE I.
MARKIAGE.
§ 12. Definition of Marriage. — The word "marriage" signi-
fies, in the first instance, that act by which a man and woman
unite for life, with the intent to discharge towards society
and one another those duties which result from the relation
of husband and wife. The act of union having been once ac-
complished, the word comes afterwards to denote the relation
itself.
§ 13. Marriage more than a Civil Contract. — It has been
frequently said in the courts of this country that marriage is
nothing more than a civil contract. That it is a contract is
doubtless true to a certain extent, since the law always pre-
sumes two parties of competent understanding who enter into
a mutual agreement, which becomes execvited, as it were, by
the act of marriage. But this agreement differs essentially from
all others. This contract of the parties is simply to enter into a
certain status or relation. The rights and obligations of that sta-
'- tus are fixed by society in accordance with principles of natural
law, and are beyond and above the parties themselves. They
may make settlements and regulate the property rights of each
I other ; but they cannot modify the terms upon which they are
to live together, nor superadd to the relation a single condition.
I Being once bound, they are bound forever. Mutual consent, as
in all contracts, brings them together; but mutual consent can-
9<^
CHAP. I.] MARRIAGE. § 13
not part them. Death alone dissolves the tie, — unless the leg-
islature, in the exercise of a rightful authority, interposes by
general or special ordinance to pronounce a solemn divorce ; and
this it should do only when the grossly immoral conduct of one
contracting party brings unmerited shame upon the other, dis-
graces an innocent offspring, and inflicts a wound upon the com-
munity. So in other respects the law of marriage differs from
that of ordinary contracts. For, as concerns the parties them-
selves, mental capacity is not the only test of fitness, but physical
capacity likewise, — a new element for consideration, no less im-
portant than the other. Again, the encumbrance of an existing
union operates here as a special disqualification. Blood relation-
ship is another. So, too, an infant's capacity is treated on pecu-
liar principles, as far as the marriage contract is concerned ; for
he can marry young and be bound by his marriage. Third par-
ties cannot attack a marriage because of its injury to their own
interests. International law relaxes its usual requirements in
favor of marriage. And finally the formal celebration now
prevalent, both in England and America, is something pecu-
liar to the marriage contract ; and in its performance we see
but the faintest analogy to the execution and delivery of a
sealed instrument.
The earnestness with which so many of our American pro-
genitors insisted upon the contract view of marriage may be
ascribed in part to their hatred of the Papacy and ritualism,
and their determination to escape the conclusion that marriage
was a sacrament. By no people have the marriage vows been
more sacredly performed than by ours down to a period, at all
events, comparatively recent. That a State legislature is not
precluded from regulating the marriage institution under any
constitutional interdiction of acts impairing the obligation of
contracts, or interfering with private rights and immunities,
has frequently been asserted. ^ And as to the private regula-
tion of their property rights, by the contract of parties to a
marriage, that, of course, is to be distinguished from their
1 Maguire y Maguire, 7 Dana, 181 ; Ottenheimer, 6 Oreg. 231; Adaras v.
Green v. State, 58 Ala. 190 ; Frasher Palmer, 51 Me. 480.
V. State, 3 Tex. App. 263; Rugh v.
23
§ 14 THE DOMESTIC RELATIONS. [PART II.
marriage, which may take place without any property regu-
lation whatever,^
We are then to consider marriage not as a contract in the
ordinary acceptation of the term ; but as a contract s?a fjeneris,
if indeed it be a contract at all ; as an agreement to enter into
a solemn relation which imposes its own terms. On the one
hand discarding the unwarranted dogmas of the Church of
Kome, by which marriage is elevated to the character of a
sacrament, on the other we repudiate that dry definition with
which the lawgiver or jurist sometimes seeks to impose upon
the natural instincts of mankind. We adopt such views as the
distinguished Lord Eobertson held.^ And Judge Story observes
of marriage : " It appears to me something more than a mere
contract. It is rather to be deemed an institution of society
founded upon the consent and contract of the parties ; and in
this view it has some peculiarities in its nature, character,
operation, and extent of obligation, different from what be-
longs to ordinary contracts."^ So Fraser, while defining mar-
riage as a contract, adds in forcible language: "Unlike other
contracts, it is one instituted by God himself, and has its founda-
tion in the law of nature. It is the parent, not the child, of
civil society." ^ And we may add that a recent American text-
writer, of high repute upon the subject, not only pronounces for
this doctrine, after a careful examination of all the authorities,
but ascribes the chief embarrassment of American tribunals,
in questions arising under the conflict of marriage and divorce
laws, to the custom of applying the rules of ordinary contracts
to the marriage relation.^
§ 14. Marriages void and voidable. — A distinction is made
at law between void and voidable marriages. This distinction,
which appears to have originated in a conflict between the Eng-
lish ecclesiastical and common-law courts, was first announced
in a statute passed during the reign of Henry VIII. ; and it is
1 Lord Stowell.in Lindo cBelisario, * 1 Fraser, Dom. Rel. 87.
1 Hag. Con. 21G ; 1 Bishop, Mar. & Div. » 1 Bishop, Mar. & Div. 5th ed. § 18.
6th ed. § 14. And see Dickson v. Dickson, 1 Yerg.
2 Duntze v. Levett, Ferg. 68, 385, 110, per Catron, J.; Ditson v. Ditson,
397 ; 3 Eng. Ec. 360, 495, 502. 4 R. I. 87, per Ames, C. J.
» Story, Confl. Laws, § 108, n.
24
CHAP. I.] MARRIAGE. § 14
also to be found in succeeding marriage and divorce acts down
to the present day. The distinction of void and voidable ap-
plies not to the legal consequences of an imperfect marriage,
once formally dissolved, but to the status of the parties and
their offspring before such dissolution. A void marriage is a
mere nullity, and its validity may be impeached in any court,
whether the question arise directly or collaterally, and whether
the parties be living or dead. But a voidable marriage is valid
for all civil purposes until a competent tribunal has pronounced
the sentence of nullity, upon direct proceedings instituted for
the purpose of setting the marriage aside. When once set aside,
the marriage is treated as void ab initio; but unless the suit
for nullity reaches its conclusion during the lifetime of both
parties, all proceedings fall to the ground, and both survivor
and offspring stand as well as though the union had been law-
ful from its inception.^ Hence we see that while a void mar-
riage makes cohabitation at all times unlawful, and bastardizes
the issue, a voidable marriage protects intercourse between the
parties for the time being, furnishes the usual incidents of sur-
vivorship, such as curtesy and dower, and encourages the prop-
agation of children. But the moment the sentence of nullity
is pronounced, the shield of the law falls, the incidents vanish,
and innocent offspring are exposed to the world as bastards;
and herein is the greatest hardship of a voidable marriage.
The old rule is that civil disabilities, such as idiocy and
fraud, render a marriage void; while the canonical impedi-
ments, such as consanguinity and impotence, make it void-
able only. This test was never a clear one, and it has
become of little practical consequence at the present day.
Statutes both in England and America have greatly modified
the ancient law of valid marriages, and it can only be
affirmed in general terms that the legislative tendency is to
make marriages voidable rather than void, wherever the im-
pediment is such as might not have been readily known to
both parties before marriage ; and where public policy does
not rise superior to all considerations of private utility.
1 1 St. 32 Hen. VIII. c. 38. See 1 Bishop, Mar. & Div. 5th ed. § 108 et seq.
25
§ 15 THE DOMESTIC KELATIONS. [PART II.
Modern civilization strongly condemns the harsh doctrine of
ah initio sentences of nullity ; and such sentences have now
in general a prospective force only, in order that rights
already vested may remain unimpaired, and, still more, that
children may not suffer for the follies of their parents.^ As
for availing one's self of a voidable marriage, as well as in
divorce, it may be asserted as a general maxim that the party
should be prompt to act when he has his right and knows
it, and that he should also seek to enforce his rights with
good faith and honor on his own part.^
§15. Essentials of Marriage. — We shall consider in this
chapter that act by which parties unite in matrimony, — for
to this the term "marriage" is most frequently applied. It
may be stated generally that, in order to constitute a perfect
union, the contracting parties should be two persons of the
opposite sexes, without disqualification, of blood or condition,
both mentally competent and physically fit to discharge the
duties of the relation, neither of them being bound by a pre-
vious nuptial tie, neither of them withholding a free assent ;
and the expression of their mutual assent should be substan-
tially in accordance with the prescribed forms of law. These
are the essentials of marriage. Hence we are to treat of the
following topics in connection with the essentials of a valid
marriage : first, the disqualification of blood ; second, the dis-
qualification of civil condition ; tliird, mental capacity ; fourth,
physical capacity ; fifth, the disqualification of infancy, which
in reality is based upon united considerations of mental and
physical unfitness; sixth, prior marriage undissolved; seventh,
force, fraud, and error ; evjhtli, the formal celebration of a
marriage, under which last head may be also included the
1 Shelf. Mar. & Div. 154; lb. 479- gomery, 2 Tenn. Ch. 216. And see
484 ; 1 Bl Com. 4.34 ; 1 Bishop, Mar. & post as to impotence or physical in-
Div. 5th ed. §§ 105-120. See Stat. 5 capacity.
& 6 Will. IV. c. 64; 2 N. Y. Rev. Sts. The local statutes are collated on
lo9, § 6 ; Mass. Gen. Sts. c. 106, § 4 ; this point in Stimson's Am. Stat. Law,
Harrison v. State, 22 Md. 468; Bowers §§ 6111, G112.
V. Bowers, 10 Rich. Eq. 551 ; Pingrce ^ Affirmance, condonation, conni-
V. Goodrich, 41 Vt. 47 ; Divorce, post, vance, are excuses suggested to the
Held contra as to the marriage of a ne- defending party; and recrimination is
ero and white person. Carter v. Mont- common in divorce libels.
26
CHAP. I.] MARRIAGE. § 16
consent of parents or guardians, not to be deemed an essential,
except in conformity with the requirements of the marriage cele-
bration acts. These essentials all have reference solely to the
time, place, and circumstances of entering into the marriage re-
lation, and not to any subsequent incapacity of either party.
§ 16. Disqualification of Blood ; Consanguinity and Affinity. —
And, first, as to the disqualification of blood. On no point
have writers of all ages and countries been more united than
in the conviction that nature abhors, as vile and unclean, all
sexual intercourse between persons of near relationship. But
on few subjects have they differed more widely than in the
application of this conviction. Among Eastern nations, since
the days of the patriarchs, practices have prevailed which to
Christian nations and in days of civilized refinement seem
shocking and strange. The difficulty then is, not in discov-
ering that there is some prohibition by God's law, but in
ascertaining how far that prohibition extends. This difficulty
is manifested in our language by the use of two terms, —
consanguinity and affinity ; one of which covers the terra
firma of incestuous marriages, the other offers debatable
ground. The disqualification of consanguinity applies to mar-
riages between blood relations in the lineal or ascending and
descending lines. There can be but one opinion concerning
the union of relations as near as brother and sister. The
limit of prohibition among remote collateral kindred has,
however, been differently assigned in different countries. The
English canonical rule is that of the Jewish law. The Greeks.
and Eomans recognized like principles, though with various
modifications and alterations of opinion. But the Church of
the Middle Ages found in the institution of marriage, once
placed among the sacraments, a most powerful lever of social
influence. The English ecclesiastical courts made use of this
disqualification, extending it to the seventh degree of canon-
ical reckoning in some cases, and beyond all reasonable
bounds.! So intolerable became this oppression, that a statute
1 In some Roman Catholic coun- cestuous. See Sottomayor c. De Bar-
tries — e. rj. Portugal — tlie marriage res, L. R. 2 P. D. 81 ; L. R. 3 P. D. 1.
of first cousins is still pronounced in-
27
§ 16 THE DOMESTIC RELATIONS. [PART II.
passed in the time of Henry VII I. forbade these courts
thenceforth to draw in question marriages without the
Levitical degree, " not prohibited by God's law." ^ Under this
statute, which is still essentially in force in England, the
impediment has been treated as applicable to the whole
ascending and descending line, and further, as extending to
the third degree of the civil reckoning inclusive ; or in
other words, so as to prohibit all marriages nearer than first
cousins. Archbishop Parker's table of degrees, which recog-
' nizes these limits, has been, since 1563, the standard adopted
in the English ecclesiastical courts.^ The statute prohibition
includes legitimate as well as illegitimate children, and half-
blood kindred equally with those of the whole blood.^ Its
principles have been recognized in the United States.*
But the English law goes even further, and places affinity
, on the same footing as consanguinity as an impediment,
I Affinity is the relationship which arises from marriage be-
'tween a husband and his wife's kindred, and vice versa. It
is shown that while the marriage of persons allied by blood
produces offspring feeble in body and tending to insanity,
1 Stat. 32 Hen. VIII. c. 38. See 1 Bishop, Mar. & Div. 5th ed. §§ 106, 107;
2 Kent, Com. 82, 83; Shelf. Mar. & Div. 163 et seq. ; Wing v. Taylor, 2 Swab. &
T. 278, 295.
2 1 Bishop, Mar. & Div. 5th ed. § 318 ; Butler v. Gastrin, Gilb. Ch. 156. Ac-
cording to tliis table, —
A man may not marry his A woman may not marry her
Grandfather.
Grandmother's husband.
Husband's grandfather.
Father's brother.
Mother's brother.
Father's sister's husband.
Mother's sister's husband.
Husband's father's brotlier.
Husband's mother's brother.
Fatiier.
Step-father.
Husband's father.
Son.
Husband's son.
3 1 Bishop, Mar. & Div. 5th ed. §§ 315, 317 ; Reg. v. Brighton, 1 B. & S. 447.
* Marriage between an uncle and niece has been treated as incestuous.
Harrison v. State, 22 Md. 468 ; Bowers v. Bowers, 10 Rich. Eq. 551.
28
1.
Grandmother.
1.
2.
Grandfather's wife.
2.
3.
Wife's grandmother.
3.
4.
Father's sister.
4.
5.
Mother's sister.
6.
6.
Father's brother's wife.
6.
7.
Mother's brother's wife.
7.
8.
Wife's father's sister.
8.
9.
Wife's mother's sister
9.
10.
Mother.
10.
11.
Step-mother.
11.
12.
Wife's mother.
12.
13.
Daughter.
13.
14.
Wife's daughter.
14.
CHAP. I.] MARRIAGE. § 17
that of persons connected by affinity leads to no such result ;
and further, that consanguinity has been everywhere recog-
nized as an impediment, but not affinity. The worst that
can probably be said of the latter is, that it leads to con-
fusion of domestic rights and duties. No question has been
discussed with more earnestness in both England and America,
with less positive result, than one which turns upon this very
distinction ; namely, whether a man may marry his deceased
wife's sister. This question has received a favorable response
in Vermont.^ But in England such marriages are still deemed
incestuous, and within the prohibition of God's law ; and
the House of Lords resists all legislative change in this
respect.^
Marriages within the forbidden degrees of consanguinity
were formerly only voidable in English law ; but by modern
statutes they have been made null and void. In this
country they are generally pronounced by statute void (that
is to say, void from the time the sentence is pronounced);^
and the offending parties are liable to imprisonment. But
with regard to marriages among relatives by affinity, the
rule is not so stringent as in England.*
§ 17. Disqualification of Civil Condition; Race, Color, Social
Rank, Religion. — Second, as to the disqualification of civil
condition. Eace, color, and social rank do not appear to
1 Blodget v. Brinsmaid, 9 Vt. 27
and see 1 Bishop, Mar. & Div. 5th ed
§ 314; Paddock v. Wells, 2 Barb. Ch
3.31. CoUamer, J., in Blodget c. Brins
maid, makes this ingenious distinction
" The relationsliip by consanguinity is
in its nature, incapable of dissolution
Ex parte Naden, L. E. 9 Ch. 670. And
see Commonwealth v. Perryman, 2
Leigh, 717, as to the Virginia statute
on this point.
^ That is to say, not void ab initio.
See supra, § 14; Harrison v. State, 22
Md. 468. And see Bowers v. Bowers,
but the relationship by affinity ceases 10 Rich. Eq. 551 ; Parker's Appeal, 8
with the dissolution of the marriage Wright, 309, where an incestuous mar-
which produced it. Therefore, though riage is treated as simply voidable,
a man is, by affinity, brother to his wife's •* 2 Kent, Com. 83, 84, and notes ; 1
sister, yet, upon the death of his wife, Bishop, Mar. & Div. 5th ed. §§ 312-320 ;
he may lawfully marry her sister." Regina v. Chadwick, 12 Jur. 174; Sut-
2 Hill V. Good, Vaugh. .302 ; Harris ton v. Warren, 10 Met. 451 ; Bonham
r. Hicks, 2 Salk. 548 ; Shelf. Mar. & v. Badgley, 2 Gilm. 622 ; Wightman r.
Div. pp. 172, 178; 2 Kent, Com. 84, Wightman, 4 Johns. Ch. 343; Butler
note, and authorities cited ; Reg. v. v Gastrill, Gilb. Ch. 156 ; Burgess v.
Chadwick, 12 Jur. 174; 11 Q. B. 173; Burgess, 1 Hag. Con. 384; Blackraore
Pawson I'. Brown, 41 L T. n. s. 339; v. Brider, 2 Phillim. 359.
29
§ 18 THE DOMESTIC RELATIONS. [PART II.
constitute an impediment to marriage at the common law,
nor is any such impediment now recognized in England.^
But by local statutes in some of the United States, inter-
marriage has long been discouraged between persons of the
negro, Indian, and white races.^ With the recent extinction
of slavery, many of these laws have passed into oblivion,
together with such as refused to allow to persons held in
bondage, and negroes generally, the rights of husband and
wife. The thirteenth article of amendment to the Constitution
gives Congress power to enforce the abolition of slavery " by
appropriate legislation." As to persons formerly slaves, there
are now acts of Congress which legitimate their past cohabi-
tation, and enable them to drop the fetters of concubinage.
And the manifest tendency of the day is towards removing
all legal impediments of rank and condition, leaving indi-
vidual tastes and social manners to impose the only restrictions
of this nature.^
§ 18. Mental Capacity of Parties to a Marriage. — Third, as
to mental capacity. No one can contract a valid marriage
unless capable, at the time, of giving an intelligent consent.
Hence the marriages of idiots, lunatics, and all others who
have not the use of their understanding, are now treated as
null; though the rule was formerly otherwise, from perhaps
too great regard to the sanctity of the institution in the
1 1 Bishop, Mar. & Div. 5th ed. §§ 308- 15th Amendment U. S. Const. ; Stew-
311 ; 1 Burge, Col. & For. Laws, 138. art v. Munchandler, 2 Bush (Ky.), 278 ;
- See Bailey v. Fiske, 34 Me. 77 ; State v. Harris, 63 N. C. 1. For South-
State V. Hooper, 5 Ire. 201 ; State v. ern statutes which now legalize the
Brady, 9 Humph. 74 ; Barkshire r. marriages of former slaves, &c., see
State, 7 Ind. 389 ; 1 Bishop, Mar. & Div. Schouler, Hus. & Wife, § 16 ; also 80
5th ed. §§ 154-163 ; Schouler, Hus. & Va. 563 ; 67 Ga. 260 ; 69 Ala. 281 ; 87
Wife, § 16. One drop less than one N. C. 329; 10 Lea, 652.
fourth negro blood saves from the taint As to statutes formerly forbidding
in Virginia. McPherson v. Common- marriage between a Roman Catholic
wealth, 28 Gratt. 939. The Missouri and Protestant, see Commonwealth v.
statute declaring marriages between Kenney, 120 Mass. 387 ; Philadelphia
white persons and negroes a felony is r. Williamson, 10 Phila. 176. The
constitutional, even though it permits statute 19 Geo. II. ch. 13, to this effect,
the jury to determine from appear- has partial reference to the solemniza-
ances the proportion of negro blood, tion of marriage by a Popish priest.
State V. Jackson, 80 Mo. 175. These are disabilities imposed by a
•* Act July 25, 1866, c. 240 ; Act Protestant parliament, it is worth ob-
June 6, 1866, c. 106, § 14. And see serving.
30
CHAP. I.] MARRIAGE. § 18
English ecclesiastical courts.^ What degree of insanity will
amount to disqualification is not easily determined; so varied
are the manifestations of mental disorder at the present day,
and so gradually does mere feebleness of intellect shade off
into hopeless idiocy. Certain it is that a person may enter
into a valid marriage, notwithstanding he has a mental de-
lusion on certain subjects, is eccentric in his habits, or is
possessed of a morbid temperament, provided he displays
soundness in other respects and can manage his own affairs
with ordinary prudence and skill. ^ Every case stands on
its own merits ; but the usual test applied in the courts is
that of fitness for the general transactions of life ; for, it is
argued, if a man is incapable of entering into other contracts,
neither can he contract marriage.^ This test is sufficiently
precise for most purposes. Yet we apprehend the real issue
is whether the man is capable of entering understandingly
into the relation of marriage ; for natural impulses are so
strong that a man may know well the contract he assumes
by the act of marriage, while he is not equally fit to enter
into other engagements. There are two questions, however:
first, whether the party understands the marriage contract ;
second, whether he is fit to perform understandingly the
momentous obligations which that contract imposes ; and
both elements might well enter into the consideration of
each case. " If any contract more than another," observes
Lord Penzance in a recent English case, "is capable of being
invalidated on the ground of the insanity of either of the
contracting parties, it should be the contract of marriage, —
an act by which the parties bind their property and their
persons for the rest of their lives."*
1 See Lord Stowell in Turner v. Sneed, 57 ; Atkinson v. Medford, 46
Meyers, 1 Hag. Con. 414; 1 Bishop, Me. 510; Ward i-. Dulaney, 23 Miss.
Mar. & Div. 5th ed. § 125. 410 ; Elzey v. Elzey, 1 Houst. 308 ;
2 2 Kent, Com. 76 ; Browning v. McEIroy's Case, 6 W. & S. 451. See
Reane, 2 Phillim. 69 ; 1 Bishop, Mar. & 1 Bishop, Mar. & Div. § 128; Ex paHe
Div. 5th ed. §§ 124-142 ; Turner v. Glen, 4 Des. 546.
Meyers, 1 Hag. Con. 414 ; 4 Eng. Ec. * Hancock v. Peaty, L. R. 1 P. & D.
440; 1 Bl. Com. 438, 439. 335, 341. The question is whether the
^ Mudway v. Croft, 3 Curt. Ec. 671 ; person had sufficient mental capacity
Anon., 4 Pick. 32 ; Cole v. Cole, 5 to make the contract of marriage.
31
§ 18 THE DOMESTIC RELATIONS. [PART U.
Marriage contracted during a lucid interval is at law deemed
valid ; ^ but the English statute provides that such marriages
are void when a commission of lunacy has once been taken
out and remains unrevoked.^ Similar provisions are to be
found in some of our States. On the other hand, marriage
contracted by a person habitually sane, during temporary
insanity, is unquestionably void,^ as of course would be any
marriage contracted by one at the time permanently insane.*
Upon the principle of temporary insanity, drunkenness
incapacitates, if carried to the excess of delirium tremens;
though not, it would appear, if the party intoxicated retains
sufficient reason to know what he is doing.^ Drunkenness
was formerly held a bad plea, for the common law permitted
no one to stultify himself ; but the modern rule is more
reasonable. Some cases require that fraud or unfair advan-
tage should be shown; yet the better opinion is that even
this is unnecessary.^ Deaf and dumb persons were formerly
classed as idiots ; this notion, however, is exploded. They
may now contract marriage by signs.' Total blindness or
mere deafness, of course, constitutes no incapacity. In general,
we may add that the disqualification of insanity is often
considered in connection with fraud or undue influence exer-
cised by or on behalf of the other contracting party, over a
Evidence of his mental condition be- 211. Cf. Waymire t\ Jetniore, 22 Ohio
fore and after the marriage is admissi- St. 271.
ble. St. George v. Biddeford, 76 Me. And as to development of the mal-
593 ; Durham v. Durliam, 10 P. D. 80. ady about the time of the ceremony,
1 Shelf. Mar. & Div. 197; 1 Bishop, see Schouler, Hus. & Wife, § 19.
Mar. & Div. § LOO; Banker v. Banker, ^ Clement v. Mattison, 3 Rich. 93; 1
63 N. y. 409 ; Parker v. Parker, 6 Eng. Bishop, Mar. & Div. 5th ed. § 131 ; Gore
Ec. 165; Smith v. Smith, 47 Miss. v. Gibson, 13 M. & W. 623; 2 Kent,
211. Com. 451, and authorities cited; Lord
2 Stat. 15 Geo. IL c. 30 (1742), Ellenborough, in Pitt y. Smith, 3 Camp,
not part of the common law in this 33 ; Scott v. Paquet, L. R. 1 P. C. 552.
country. *> See 1 Bishop, Mar. & Div. 5th ed.
3 Legeyt v. O'Brien, Milward, 325 ; §§ 131, 132, and conflicting cases cited ;
Parker v. Parker, 6 Eng. Ec. 165. Elzey v. Elzey, 1 Houst. 308 ; Steuart
* See Lord Penzance in Hancock v. v. Robertson, 2 H. L. Sc. 494.
Peaty, L. R. 1 P. & D. 335 ; Banker v. ^ 1 Bishop, Mar. & Div. 5th ed. § 133,
Banker, 63 N. Y. 409 ; McAdam v. and cases cited ; 1 Eraser, Dom. Rel. 48 ;
Walker,! Dow, 148; 1 Bishop, Mar. & Dickenson v. Blisset, 1 Dickens, 268;
Div. § 130; Smitli r. Smith, 47 Miss. Harrod o. Harrod, 1 Kay & Johns. 4.
32
CHAP. I.] MARRIAGE. § 19
weak intellect, for the sake of a fortune, a title, or some other
worldly advantage.^
Suits of nullity, brought to ascertain the facts of insanity,
are favored by law both in England and America ; and mod-
ern legislation discountenances all collateral disputes involv-
ing questions so painful and perplexing. "Though marriage
with an idiot or lunatic be absolutely void, and no sentence
of avoidance be absolutely necessary," says Chancellor Kent,
" yet, as well for the sake of the good order of society as for
the peace of mind of all persons concerned, it is expedient that
the nullity of the marriage should be ascertained and declared
by the decree of a court of competent jurisdiction." ^ In many
States this is now the only course to be pursued, such mar-
riages being treated as voidable and not void ; and the insane
spouse dying before proceedings to dissolve the marriage are
begun, the survivor takes all the benefits of a valid marriage
accordingly.^
§ 19. Physical Capacity of Parties to Marriage; Impotence,
&c. — Fourth. The question of physical capacity involves an
investigation of facts even more painful and humiliating than
that of mental capacity. Yet as marriage is instituted, in part
at least, for the indulgence of natural cravings and with a
view to propagate the human family, sound morality demands
that the proper means shall not be wanting. Our law demands
that, at all events, the sexual desire may be fully gratified.
Where impotence exists, therefore, there can be no valid mar-
riage. By this is meant simply that the sexual organization
of both parties shall be complete. But mere barrenness or in-
capacity of conception constitutes no legal incapacity in Eng-
land and the United States, nor can a physical defect which
does not interfere with copulation ; nor indeed any disability
which is curable, even though not actually cured, unless the
1 Fraud as an element of disqualifi- Brown v. Westbrook, 27 Ga. 102 ;
cation will be considered post. 31 N. Y. Supr. 461 ; 97 N. C. 252. As
2 2 Kent, Com. 76. to bringing such suits, see, further, 1
3 1 Bishop, Mar. & Div. 5th ed. §§ 136- Bishop, Mar. & Div. §§ 139-142 ; Schou-
142 ; Goshen v. Richmond, 4 Allen, ler, Hus. and Wife, § 21. In Maine
458; Hamaker i". Hamaker, 18 111. 137; such a marriage may be impeached
Williamson v. "Williams, 3 Jones, Eq. collaterally. 76 Me. 419.
446; Wiser v. Lockwood, 42 Vt. 720;
3 33
§ 20 THE DOMESTIC KELATIONS. [PART II.
party disabled unreasonably refuses to submit to the proper
remedies.! Such refusal, however, puts the disabled spouse
clearly in the wrong.^ The refusal of carnal intercourse by a
healthy spouse is quite a different matter, and gives rise to
other inquiries under the head of divorce;^ nor certainly can
physical incapacity arising from some cause subsequent to mar-
riage be referred to the present subject, the question being as to
incapacity at the date of marriage.^
The reader will find Dr. Lushington's opinion in the lead-
ing case of Deanc v. Avcling^ sufficiently suggestive as to the
extent of malformation which invalidates a marriage on the
ground of physical incapacity. It will be observed that this
case establishes a principle which later cases do not under-
mine ; namely, that it is capacity for fulfilling the conditions
of copulation, and not of procreation, that our own law regards.
"We may add that, with the rapid progress of medical science
during the present century, cases of absolute and incurable
impotence are happily diminishing in number.^
§ 20. Disqualification of Infancy. — Fifth. Infancy may be
an impediment to marriage ; but only so far, on principle, as
the marrying party, by reason of imperfect mental and physi-
cal development, may be brought within the reason of the last
two rules. Hence we find that infancy is not a bar to marriage
to the same extent as in ordinary contracts ; since minors can-
not repudiate their choice of husband or wife on reaching ma-
1 1 Bishop, Mar. & Div. §§ 321-340, modern case of U. v. J., L. R. 1 T. & D.
and cases cited; 1 Fraser, Doni. Rel. 460.
53; B. V. B., 28 E. L. & Eq. 95; 1 Bl. 6 g^e for instances: T. v. M., L. R.
Com. 440, v., by Chitty and others ; Ayl. 1 P. & D. 31 ; T. v. D., L. R. 1 P. & D.
Rarer. 227 ; Devanbagh v. Devanbagh, 127 ; Carll v. Prince, L. R. 1 Ex. 246.
5 Paige, 554 ; Essex y. Essex, 2 Howell, But witli modern facilities, including
St. Tr. 786 ; Briggs v. Morgan, 3 Phil- tlie right of parties to testify in tlieir
lim. 325. For a case where the disa- own suits, such cases appear to be on
bility was possibly curable, see G. v. G., the increase in the courts of Great
L. R. 2 P. & D. 287. Britain. See 1 Bishop, § 331 ; Schou-
2 H. V. P., L. R. 3 P. & D. 126. ler, IIus. and Wife, § 23, as to sen-
3 See, furtlier, Schouler, IIus. and tences of nullity in such cases. The
Wife, § 22; Cowles v. Cowles, 112 latest English cases interpose no bar-
Mass. 298. rier for a mere delay in seeking a de-
* See Morrell v. Morrell, 24 N. Y. cree of nullity for impotence. 10 P. D.
Supr. 324. 76; 10 App. Cas. 171.
6 1 Robertson, 279, 298. And see
34
CHAP. I.] MARRIAGE. § 20
jority. Not that marriage calls for less discrimination, for it
carries with it consequences far beyond all other contracts,
involving property rights of the gravest import; but because
public policy must protect the marriage institution against the
rockless imprudence of individuals. A certain period is estab-
lished, called the age of consent, which in England is fixed at
fourteen for males and twelve for females, — a rule adopted from
the Roman law, but which, in this country, varies all the way
from fourteen to eighteen for males and twelve to sixteen for
females, according to local statutes ; differences of climate and
pliysical temperament contributing, doubtless, to make the rule
of nature, in this respect, a fluctuating one.^ Marriages with-
out the age of consent are as binding as those of adults ; mar-
riages within such age may be avoided by either party on
reaching the period fixed by law. And even though one of the
parties was of suitable age and the other too young, at the
time of marriage, yet the former, it appears, may disaffirm as
well as the latter.^ Herehi is observed a departure from that
principle of law, that an infant may avoid his contract while
the adult remains bound ; it is a concession which the law
makes in favor of mutuality in the marriage compacts. ]\Iar-
riages celebrated before both parties have reached the age of
consent may be disaffirmed in season, either with or without a
judicial sentence.^ When the age of consent is reached, no new
ceremony is requisite to complete the marriage at the common
law ; but election to affirm will then be inferred from circum-
stances, such as continued intercourse, and even slight acts may
suffice to show the intention of the parties. If they then choose
to remain husband and wife, they are bound forever Disaf-
1 See 2 Kent, Com. 79. notes, show- - Co. Litt 79, and Har^. n. 4.5; 1
ing the periods fixed in different States East, P. C. 468 ; 1 Bishop, Mar. & Div.
as the age of consent. In the old States 5tli ed. § 149. Bat it is not certain
the commonlaw rule generally pre- that a party of competent age may
vails. In Ohio, Indiana, and other disaffirm equally with the party in-
Western States, the age of consent is competent. Peojile v. Slack, 15 Mich,
raised to eighteen for males and four- 193.
teen for females. See also Bennett v. ^ The complaint should be in the
Smith, '21 Barb 4-39, as to the power name of the infant, and not of his
of the New York courts to annul mar- guardian. 101 Ind. 317.
riages with persons under age.
35
§ 21 THE DOMESTIC BELATIONS. [PAET U.
firmance, on the other hand, may be either with or without a
judicial sentence.^ Marriage within the age of consent seems
therefore to be neither strictly void nor strictly voidable, but
rather inchoate and imperfect ;2 with, however, a reservation
by the ecclesiastical law as to marriage with an infant below
seven years, which is treated as altogether null.^
§ 21. Disqualification of Prior Marriage Undissolved; Polyg-
amy; Bigamy. — Sixth, as to the impediment of prior marriage
undissolved. It is a well-established rule in civilized countries
that marriage between parties, one of whom is bound by an ex-
isting marriage tie, is not only void, but subjects the offenders
to criminal prosecution.^ Polygamy, or bigamy as it is often
termed, — since the common law of England could scarcely con-
ceive of such conjunctions carried beyond a double marriage, — is
discarded by all Christian communities. It is tolerated, though
not sanctioned, in certain territory of the United States. The
fundamental doctrine of Christian marriage is that no length of
separation can dissolve the union, so long as both parties are
actually living even though lapse of time should raise a reason-
able supposition of death. But to render the second marriage
1 void at law, the first should have been valid in all respects.^
Some of the harsher features of the old law have been softened
in our own legislation ; and statutes are not uncommon which
possibly extend facilities for divorce from the old relation, and
in any event protect the offspring of a new marriage contracted
erroneously, but in good faith, by parties who had reason to
believe a former spouse dead.^ So, too, polygamy in fact is
1 1 Bishop, Mar. & Div. § 150. 3 2 Burn, Ec. Law, 434 ; 1 Bishop,
2 Co. Litt. 33 a ; 2 Kent, Com. 78, 79 ; Mar. & Div. § 147.
1 Bishop, Mar. & Div. 5th ed. §§ 143- * Cro. Eliz. 858 ; 1 Salk. 121 ; 2
153, and cases cited; 1 Bl. Com. 436; Kent, Com. 79, and notes; 1 Bishop,
1 Eraser, Dom. Rel. 42 ; Parton v. Her- Mar. & Div. §§ 296-308, and authorities
vey, 1 Gray, 119; Fitzpatrick v. Fitz- cited; Shelf. Mar. & Div. 224; Hyde
Patrick, 6 Nev. 63. See Shafher v. v. Hyde, L. R. 1 P. & D. 130.
State, 20 Oiiio, 1, contra, Goodwin v. ^ Bruce v. Burke, 2 Add. Ec. 471 ;
Tlinmpson, 2 Iowa, 329 ; Aymar )'. 2 Eng. Ec. 381 ; Reg. v Chadwick, 12
Roff, 3 Johns. Ch. 49, as to the invalid- Jur. 174; Patterson v. Gaines, 6 How.
ity of such marriage, unless confirmed (U. S.) 550.
by coliahitation after reaching the stat- '^ See 2 N. Y. Rev. Stat. p. 139, §§ 6,
utory age. Local statutes affect this 7; Mass. Gen. Sts.'c. 107, §§ 4, 30;
whole subject. Stimson, Am. Stat. Law, § 6116.
36
CHAP. I.] MARRIAGE. § 21
relieved of its penal consequences as concerns parties not guilty
of polygamy in intention ; but a certain period must elapse —
usually seven years — before death can be presumed from one's
mere continuous absence without being heard from. Such was
one of the provisions in the English statute passed to make
bigamy a civil offence, in the reign of James I.,^ which also
exempted from punishment for bigamy persons remarried, dur-
ing the lifetime of the former spouse, after a divorce, sentence of
nullity, or disaffirmance on reaching age of consent. Similar
statutes for the punishment of bigamy, with similar reserva-
tions, are enacted in this country ; but in England and the
United States some defects of the original legislation are now
cured, and divorce from bed and board would not exempt an
offender from prosecution.^ Polygamy, with such exceptions,
remains an indictable offence. One of its less obvious evils —
though not the least important when polygamy is regarded as a
legalized institution in a free country — is that the patriarchal
principle which it introduces is thoroughly hostile to free in-
stitutions ; this fact was pointed out many years ago by one of
our best writers on political ethics.^
Nor is a new marriage entered into by one spouse in good
faith, and in full but erroneous belief that the other spouse is
dead, valid even after the lapse of the statutory absence ; such
parties are not free to marry again, but only relieved of the
worst consequences.* One who innocently marries another hav-
1 Stat. 1 Jac. I. c. 11, 1604. See As to prosecutions for bigramy, see
Queen v. Lumley, L. R. 1 C. C. 196 ; Kopke v. People, 43 Mich. 41 ; Reeves
Queen v. Curgerwen, L. R. 1 C C. 1. v. Reeves, 54 111. 332; Queen v. Allen,
■•^ In New York the period of ab- L R. 1 C C. 367, and other cases cited
sence is five years ; in Oliio, three Schouler, Hus and Wife, § 25 , also
years ; in Massachusetts, seven years, " Bigamy " m Bishop or Wharton on
but with a special relaxation of the Criminal Law.
penalty, Still further, see 2 Kent, ■* Glass v. Glass, 114 Mass. 563, and
Cora 79, and notes. See also Stats. 9 cases cited ; Williamson v Parisien, 1
Geo IV. c 31 ; 24 & 25 Vict. c. 100 ; 1 Johns. Ch. 389 ; Miles v. Chilton, 1 Rob-
Bishop, § 297. Legitimating statutes ertson, 684 ; Spicer v. Spicer, 16 Abb.
are to be found in numerous States on Pr. n. s. 112; 1 Bishop, Mar. & Div.
behalf of the offspring of innocent mar- § 209 ; Webster v. Webster, 58 N. H. 3.
riages of this kind. 1 Bishop, § 301 ; Such marriage, under Massachusetts
cases infra. statutes, may be annulled by a sen-
8 2 Lieber, Pol. Ethics, 9, cited in tence containing (in order to make
note to 2 Kent, Com. 81. children begotten before the commence-
37
§ 23 THE DOMESTIC KELATIONS. [PART II.
ing an undivorced spouse may have the colorable marriage de-
clared void independently of all divorce legislation.^
§ 22. Same Subject ; Impediments following Divorce. — Un-
der this same head may be considered a disqualification intro-
duced into some parts of this country by legislative enactments ;
namely, the impediment which follows divorce.^ A divorce a
vinculo should on general principles leave both parties free to
marry again. But such is not always the case. Thus, in Ken-
tucky, the person injured might not marry again before the ex-
piration of two years from the decree of dissolution.^ And in
several States the guilty party is prohibited from marrying again
during the lifetime of the innocent spouse divorced, — a pro-
vision of law seemingly more judicious to apply in tcrrorem by
way of prevention than as a suitable method of punishment.*
In Scotland there is a peculiar but not unreasonable law, which
forbids the guilty party after divorce from marrying the jmr-
ticeps criminis ; this was framed evidently to defeat collusive
practices between persons desiring to put away an outstanding
obstacle to their own union. ^ A divorce nisi is of course only
partial ; and a marriage solemnized before the absolute decree
takes effect is void.^
§ 23. Force, Fraud, and Error, in Marriage. — Seventh. All
marriages procured by force or fraud, or involving palpable error,
are void ; for here the element of mutual consent is wanting,
so essential to every contract.' The law treats a matrimonial
raent of the suit legitimate) the state- may be estopped to deny the validity
meiit that it was contracted in good in collateral proceedings,
faith and with the full belief of the par- * See Parke v. Barron, 20 Ga. 702 ;
ties that the absent spouse was dead. Clark v. Cassidy, 62 Ga. 407 ; 53 Barb.
Glass y. Glass, .sM/17'fl. Randlett f. Rice, 454. Such prohibitions are sometimes
141 Mass. 385, presented curious facts, evaded by going into anotherneighbor-
Lawful competence to marry again re- ing State, and there contracting what
suits, iiowever, under some local stat- by local law is a valid marriage,
utes, from such absence Strode v. Thorp i\ Thorp, 90 N, Y. 602 , 92 N. Y.
Strode, 3 Bush, 227. 521 , 86 N. Y. 18. And see post, § 222, n.
1 Fuller V. Fuller, 33 Kan. 582. Notwithstanding a New York prohi-
2 1 Bishop, Mar. & Div. 5th ed. §§ bition, parties went into New Jersey
304-307 ; Schouler, Hus. and Wife, or Connecticut for such purpose. lb.
§ 26. M Fraser, Dom. Rel. 82.
» Cox r. Combs, 8 B. Monr. 231. « Cook v. Cook, 144 Mass. 163.
Mason v. Mason, 101 Ind. 25, treats a Such a marriage may be annulled ac-
marriage in violation of such inhibition cordingly.
as voidable only, so that one party ' 2 Kent, Com. 76, 77 ; 1 Bishop, Mar.
38
CHAP. I.] MARRIAGE. § 23
union of tliis kind as absolutely void ab initio, and permits its
validity to be questioned in any court ; at the option, however,
of the injured party, who may elect to abide by the conse-
quences when left free to give or withhold assent. Force im-
plies a physical constraint of the will ; fraud, some deception
practised, whereby an unnatural state of the will is brought
about.^ Cases of palpable error, which are very rare, usually
contain one or both of these ingredients.
What amount of force is sufficient to invalidate a marriage is
a question of circumstances. Evidently the same test could not
apply to the mature and the immature, to the strong and the
weak, to man and to woman. The general rule is that such
amount of force as might naturally serve to overcome one's free
volition and inspire terror will render the marriage null.^ And
where the party employing force sustains a superior relation
of influence, or a post of confidence affording him opportuni-
ties which he chooses to abuse, this circumstance carries great
weight. Thus in Harford v. Murris, where one of the guardians
of a young and timid school-girl, having great influence and
authority over her, took her to a foreign country, hurried her
from place to place, and then married her without her free con-
sent, the marriage was set aside ; ^ and similar consequences
attended more recently the marriage of a young school-girl to
her father's coachman, who pursued his scheme while taking
her out to ride.* So, too, where a man forced a woman who was
in pecuniary distress to marry him by operating on her fears of
exposure and ruin.^
A marriage by compulsion is procured when an adult under
illegal arrest is forced to marry ; and so probably, though
the arrest was legal, if malicious circumstances are manifest.^
But if a single man under legal arrest, by advice of the
& Div. 5th ed. §§ 164-215; Harford v. 2 ghelf. Mar. & Div. 213; 1 Bishop,
Morris, 2 Hag. Con. 423; 4 Eng. Ec. Mar. & Div. 5th ed. § 211.
575 ; Countess of Portsmouth v. Earl 3 2 Hag. Con. 423 ; 4 Eng. Ec. 576.
of Portsmouth, 1 Hag. Ec. 355 ; 3 Eng. * Lyndon v. Lyndon, 69 111. 43.
Ec. 154 ; Scott v. Shufeldt, 5 Paige, 43 ; ^ gcott v. Sebright, 12 P. D. 21.
Dalrymple v. Dalryniple, 2 Hag. Con. « Reg. v. Orglll, 9 Car. & P. 80;
54, 104 ; 4 Eng. Ec. 485 ; Keyes i'. Soule i'. Bonney, 87 Me. 128 ; Collins v.
Keyes. 2 Post. 5.5.3. Collins, 2 Brews. (Pa.) 515; Barton v.
1 1 Eraser, Dom. Rel. 234. Morris, 15 Ohio, 408 ; Benton v. Ben-
39
§ 23 THE DOMESTIC RELATIONS. [PART II.
officer or magistrate, marries the woman whom he has
seduced or got with bastard offspring, in order to escape
prosecution, the law disinclines to annul such a marriage for
duress in case of an adult, but will favor a presumption of hon-
est repentance on his part, and hold him bound ; ^ substantial
justice being thereby done to the utmost, and the lesser scandal
to society permitted in order to avert the greater.
As to fraud, in order to vitiate a marriage, it should go
to the very essence of the contract. But what constitutes
this essence? The marriage relation is not to be disturbed
for trifles, nor can the cumbrous machinery of the courts
be brought to bear upon impalpable things. The law, it
has been well observed, makes no provision for the relief
of a blind credulity, however it may have been produced.^
Fraudulent misrepresentations of one party as to birth, social
position, fortune, good health, and temperament, cannot there-
fore vitiate the contract. Caveat emptor is the harsh but
necessary maxim of the law. Love, however indispensable
in an aesthetic sense, is by no means a legal essential to
marriage; simply because it cannot be weighed in the scales
of justice. So, too, all such matters are peculiarly within the
knowledge of the parties themselves, and they are put upon
reasonable inquiry.
Not even does the concealment of previous unchaste and
immoral behavior in general vitiate a marriage ; for although
this seems to strike into the essence of the contract, yet
public policy pronounces otherwise, and opens marriage as
ton, 1 Day, 111 ; 1 Bishop, Mar. & Div. v. Marsh, 29 N. J. Eq. 15; but the court
5th ed. § 212. aHowcd aXinwny pendente lite to the wife,
A man is sometimes forced into a she denj ing the charge,
marriage which ought to be annulled. ^ Jackson v. Winne, 7 Wend. 47 ;
See Bassett ?•. Bassett, 9 Bush, GHB. In Sickles v. Carson, 26 N. J. Eq. 440 ;
Willard v. Willard, 6 Baxter, 297, he- Honnett v. Honnett, 3-3 Ark. 156 ; State
fore testimony was taken, an allegation i'. Davis, 79 N. C. 603; Johns v. Johns,
of duress was sustained against de- 44 Tex. 40; Williams y. State, 44 Ala.
murrer. Here tlie man claimed that 24 ; 42 N. J. Eq. 55. In Smith v. Smith,
the woman's brother seized him on the 51 Mich. 607, the marriage was an-
highway, and forced him to marry her, nulled where the party was " a boy of
and that as soon as the duress was over eighteen and the woman much older."
he escaped ; also that the woman had a •' Lord Stowcll, in Wakefield i\ Mac-
child three months afterwards. Duress kay, 1 Phillim. 1.S7 ; 2 Kent, Com. 77 ; 1
was claimed by the husband in Vroom Bishop, Mar. & Div. 6th ed. §§ 166-16?
40
CHAP. I.] MAKRTAGE. § 23
the gateway to repentance and virtue.^ If the profligate
continue a profligate after marriage, the divorce laws afford a
means of escape to the deluded victim. Still, as this doc-
trine seems to bear hard upon innocent persons marrying in
good faith and with misplaced confidence, it is applied not
without some limitations. Thus it is held in Massachusetts
that where a woman, pregnant by another man at the time of
the nuptials, bears a child soon after to an innocent husband,
the marriage may be avoided by him ; for she has thereby not
only inflicted upon him, by deception, the grossest possible
moral injury, but subjected them both to scandal and ill-
repute.^ The same court, however, has taken heed not to
press this exception far, refusing to allow one to shake off
the obligations he has contracted with a woman whom he
knew before marriage to be with child, and in fact had
himself debauched, notwithstanding he married upon the faith
of her previous assurances that her pregnancy was by him,
and was undeceived by the time the child came into the
world.^ Furthermore, if a man marries any woman whom
he knows to be unchaste and pregnant, it is his own folly
if he places implicit confidence in any of her statements ; *
and if he was unchaste with her himself, he debars himself
from complaining that he found her pregnant by another.^
But whenever an innocent man marries a woman, supposing
her, with reason, to be virtuous, and she conceals her preg-
nancy from him, the subsequent production of another man's
child so unpleasantly complicates the marriage relation that
he ought to be allowed his exit if he so desires, both in justice
to himself and because the woman knew the risk she ran of
1 1 Bishop, Mar. & Div. §§ 170, 179
Rogers, Ec. Law, 2d ed. 04-1 ; 1 Fraser
Dom. Kel. 231; Ayl. Parer. 362, 363
Swinb. Spousals, 2d ed. 152 ; Best v
Best, 1 Add. Ec. 411 ; 2 Eng. Ec. 1-58
^ Foss V. Foss, 12 Allen, 26. It was
here suggested by the court that the
man might have taken medical or other
advice before marriage, instead of re-
lying upon the woman's word. As to
Leavitt u. Leavitt, 13 Mich. 452; Wier such statute cause of divorce, see
V. Still, 31 Iowa, 107. Schouler, Hus. & Wife, § 530.
'-^ Reynolds v. Reynolds, 3 Allen, 605. * Crehore v. Crehore, 97 Mass. 3-30.
See also Baker v. Baker, 13 Cal. 87; ^ Seilheimer r. Seilheimer, 40 N. J.
Montgomery <-. Montgomery, 3 Barb. Eq. 412.
Ch. 132; Wright, 630; Allen's Appeal,
99 Penn. St. 196.
41
§ 23 THE DOMESTIC KELATIONS. [PART II.
bringing tlie parental relation to shame by marrying, and
chose to incur it. In short, while marriage may be accepted
by any one whose past life has been dissolute, as the portal
to a new and honest career, for which reason concealment of
the past cannot legally be predicated of either party as an
essential fraud, we apprehend that the woman who brings
surreptitiously to the marriage bed the incumbrance of some
outside illicit connection introduces a disqualification to the
nnion as real as the physical impotence of a man would be,
resulting from his own lasciviousness.
As to error, it may be said, as in fraud, that the error
should reach the essentials ; and Chancellor Kent justly ob-
serves that it would be difficult to find a case where simple
error, without some other element, would be permitted to va-
cate a marriage.^ There is an English case in point, where a
man courted and afterwards married a young lady, believing
her to be a certain rich widow, whom he had known only
by reputation. She and her friends had countenanced the
deception. It was held, nevertheless, that the marriage must
stand.2 But the palpable substitution of some other individual
for the person actually accepted and intended for marriage may
properly be repudiated by the victim to the fraud.^ And some
cases have gone even farther, as where a scoundrel palms him-
self off as a certain individual of good repute;^ though, gen-
erally speaking, deception as to name is not regarded as more
fatal than deception as to character or fortune.
The element of imperfect consent is readily associated with
cases of the present class. Thus, if a person is unwittingly
entrapped into a marriage ceremony, not meaning nor afford-
ing reason for the other party to believe that it should be
binding, this marriage may be repudiated.^ And in general
a mock marriage in jest is no marriage.^
1 2 Kent, Com. 77. See Lord Camp- ' Fiction supplies such instances,
bell, in l^eg. v. Millis, 10 CI. & F. 5.34, as in Scott's novel, St. Konan's Well.
78-'); 1 Bishop, Mar. & Div. 5th od. And see 2 Kent, Com. 77; 1 Bishop,
§ 207 ; Clowes v. Clowes, 3 Curt. Ec. § 207.
185, 191. * Rex v. Burton, 3 M. & S. 537.
2 Feilding's Case, cited in Burke's 6 Clark v. Field, 13 Vt. 460.
Celebrated Trials, 6.3. 78. and in 1 « McClurg: y. Terry, 21 N. J. Eq. 225.
Bishop, Mar. & Div. 5th ed. § 204. See post, § 2(5,
42
CHAP. I.J MARRIAGE. § 24
§ 24. Force, Fraud, and Error : Subject continued. — In most
of the reported cases of force, fraud, and error, two or more of
these elements are united ; and frequently another distinct im-
pediment appears, such as tender years on the part of the in-
jured party ; or, with regard to the offender, the suppression of
material facts relative to some former marriage, or to his own
mental or physical incapacity ; or some other cause of nullity
is shown by the evidence. In the reported cases, where the
complainant was successful, some unprincipled man has gener-
ally sought to gain undue advantages from the person and for-
tunes of one whose feebler will or overstrained fears rendered
her an easy prey ; it rarely, if ever, appears that such force or
fraud led to a reasonable and well-assorted match. Such un-
equal alliances need find favor from no tribunal.^
All marriages of this sort are binding without further cere-
mony, provided the injured party sees fit to affirm it after all
constraint is removed, or, in other words, to perfect the con-
sent ; but no such freedom of choice seems to be left to the
offending party. Hence this sort of marriage seems neither
void nor voidable in the legal acceptation ; but rather inchoate
or incomplete until ratified, though void if the injured choose
so to treat it. Where consummation never followed the nup-
tials, the courts are the more readily disposed to set aside the
match ; ^ but in any event copulation, with knowledge of the
fraud, and after removal of all constraint, is an effectual bar to
relief.^
The issue, we may add, is between the offender and the in-
jured party, and third persons have no right to interfere, al-
though it be alleged that there was intent to defraud them in
their own property interests.^ In fact, marriage stands or falls
1 See Heffer v. Heffer, 3 M. & S. ertson v. Cole, 12 Tex. 356 ; Cameron
265; Rex v. Burton, 3 M. & S. 537; r. Malcolm, si/pra.
Swift V. Kelly, 3 Knapp, 257 ; Nace v. 3 i Bishop, Mar. & Biv. 5th ed.
Boyer, 6 Casey, 99; Robertson v. Cole, §§ 214, 215; 1 Burge, Col. & For. Laws,
12 Tex. 356; Cameron v. Malcolm, 137 ; 1 Fraser, Dom. Rel. 229; Scott y.
Mor. 12586, cited 1 Bishop, § 199; Shufeldt, 5 Paige, 43; Leavitt y. Leav-
Lyndon v. Lyndon, 69 111. 43; Powell itt, 13 Midi. 452; Hampstead v. Plais-
i: Cobb, 3 .Jones, Eq. 456; Scott v. Se- tow, 49 N. H. 84.
bright, 12 P. D. 21. * McKinney v. Clarke, 2 Swan, 321.
2 Lvndon v. Lyndon, 69 111. 43 ; Rob-
43
§ 25 THE DOMESTIC RELATIONS. [PAKT II.
by public permission with reference only to the marriage par-
ties ; and wherever they have legally assumed the relation as
one agreeable to themselves, outsiders cannot meddle with the
status from outside considerations. Where, too, a marriage has
been effected through the fraudulent conspiracy of third per-
sons, the rule is that, unless one of the contracting parties is cog-
nizant of the fraud, the marriage is perfect ; but, if cognizant, it
is to be deemed the fraud of such party and treated accordingly.^
§ 25. Essential of Marriage Celebration. — Eighth. We are
now brought to the important subject of the formal marriage
celebration. Here there is a wide difference noticeable between
general principles and established practice. We are to consider
this topic, then, in two separate aspects : (1) as to marriage
observance in the absence of civil requirements ; (2) as to mar-
riage observance under the statutes now in force in England and
America.
It is to be premised, however, by way of enlarging upon
the idea of perfect and imperfect consent suggested under the
last head, that some form of marriage promise, some ceremony,
however slight, has always been deemed essential to the valid-
ity of marriage. The common language of the books is that, in
the absence of civil regulations to the contrary, marriage is a
contract, and nothing but mutual consent is required. And the
old maxim of the Eoman law is quoted to support this view :
Nwptias non concubitus, sed consensus, facit? But is there not an
ambiguity in the use of such language ? For it is material to
ask whether consensus, or consent, is used in the sense of simple
volition or an expression of volition. We maintain that the lat-
ter is the correct legal view ; and that it should be said that the
law requires in such cases a simple expression of mutual consent,
and no more. For the very definition of marriage implies that
there should be not only the consenting mind, but an expression
of the consenting mind, by words or signs, which expression in
proper form constitutes in fact the marriage agreement. It is
1 Sullivan v. Sullivan, 2 Hag. Con. 2 See 2 Kent, Com. 86, 87 ; Co. Litt.
238, 240 ; Kex v. MinshuU, 1 Nev. & M. 33 a ; 1 Bishop, Mar. & Div. §§ 218-
277 ; 1 Bishop, Mar. & Div. § 173 et seq. ; 267.
Barnes v. Wyethe, 28 Vt. 41 ; Bassett
V. Bassett, 9 Bush, 696.
44
CHAP. I.] MARRIAGE. § 26
in this sense that we shall apply the terms formal and informal
to marriage in the following sections.
Here, however, we mean to distinguish between promises of
marriage in the future, such as involves a mere engagement to
marry and renders one liable in breach of promise suits; and
such promises as justify the inference that there is a marriage.
§ 26. Same Subject ; Informal Celebration. — (1) To consti- W
tute a marriage, then, where there are no civil requirements, —
or, in other words, to constitute an informal marriage, — words
clearly expressing mutual consent are sufficient without other
solemnities. Two forms of consent are mentioned in the books :
the one, consent per verba de prmsenti, with or without consum-
mation ; the other, consent per verba de futuro, followed by con-
summation.^ Some writers have added a third form of consent,
— by habit and repute ; but this is, very clearly, nothing more
than evidence of consummated marriage amounting to a pre-
sumption conclusive enough for the purpose at hand.^ So, too,
there is reason to suppose that the marriage per verba de futuro
is of the same sort as the former ; marriage per verba de prcesenti
constituting the only real marriage promise, while consummation
following de futuro words of promise raises a legal presump-
tion, not probably conclusive, that words de prcesenti afterwards
passed between the parties. The copula is no part of the mar-
riage ; it only serves to some extent as evidence of marriage.^
Consensus, non concubitus, is the maxim of the civil, ecclesiasti-
cal, and common law alike.*
Informal celebration constitutes marriage as known to nat-
ural and public law. The English canon law, as it stood
previous to the Council of Trent, the law of Scotland, and
in various European countries, the law of some of the United
1 Swinb. Spousals, 2d ed. 8 ; 2 Burn, 3 Port v. Port, 70 III. 484 ; 1 Bishop,
Ec. Law, Phillim. ed. 455 e; Lord Cot- Mar. & Div. 5th ed. §§ 228, 254; Jack-
tenham, in Stewart v. Menz'.es, 2 Rob. son v. Winne, 7 Wend. 47 ; Dumaresly
Ap. Cas. 547 ; 1 Bishop, Mar. & Div. v. Fishly, 3 A. K. Marsh. 3G8, 372 ;
5th ed. § 227. Peck v. Peck, 12 R. I. 485.
2 Lord Selborne, in the case of De * Dalrymple v. Dalrymple, 2 Hag.
Thoren v. Attorney-General, 1 H. L. Con. 54; 4 Eng. Ec. 485,489; Shelf.
App. 086, confirms this view. See also Mar. & Div. 5-7.
Breadalbane's Case, L. R. 1 H. L. So.
182.
45
§ 26 THE DOMESTIC EELATIONS. [PART II.
States, and perhaps the common law of England, all dispense
with the ceremonial observances of formal marriage.^ Informal
marriage is to be sustained on the theory that an institution of
such fundamental importance to our race ought to be good inde-
pendently of, and prior to, the formal requirements which hu-
man government imposes at an advanced stage of society. But,
as we shall see, the marriage acts now in force in England and
many of the United States render certain solemnities, religious
or secular, indispensable. Most of the continuous decisions relat-
ing to informal marriages are therefore to be found in the Scotch
reports, where the general doctrine has been pretty fully dis-
cussed. And the great, the almost insuperable, difficulty which
presents itself at the outset in such cases is thus clearly indi-
cated by Lord Stowell in Lindo v. BeUsario : " A marriage is
not every carnal commerce ; nor would it be so even in the law
of nature. A mere carnal commerce, without the intention of
cohabitation and bringing up of children, would not constitute
marriage under any supposition. But when two persons agree
to have that commerce for the procreation and bringing up of
children, and for such lasting cohabitation, — that, in a state of
nature, would be a marriage ; and, in the absence of all civil and
religious institutions, might safely be presumed to be, as it is
1 Informal marriage has been rocoff- Penn. St. 86. And see Dysart Peerage
nized to a greater or less extent in the Case, 6 App. Cas. 48'J (1881). " By
United States. Dickerson ?-. Brown, the common law, if the contract be
49 Miss. 357 ; Hutchins r. Kimmell, 31 made per verba de presenti, it is sufficient
Mich. 126; Port v. Port, 70 111. 484; evidence of marriage; or if made per
Lewis V. Ames, 44 Tex. 319; Dyer v. verba de faturo cum copula, the copula
Brannock, 66 Mo 391 ; Campbell r. would be presumed to have been al-
GuUatt, 43 Ala. 57 ; Askew v. Dupree, lowed on the faith of the marriage
30 Ga. 173 ; Hynes v. McDermott, 91 promise, so that at the time of the
N. y. 451. But Maryland repudiates copula the parties accepted each other
the doctrine of informal marriages, as husband and wife. On this subject
Denison v. Denison, 35 Md. 361 ; as, the maxim of the law is inexorable,
by force of statute or otlierwise, do cer- that it is the consent of parties, and
tain other States. See 1 Bishop, § 279; not their concubinage, that coneti-
Estill V. Rogers, 1 Bush, 62 ; Holmes tutes valid marriage. The well being
V. Holmes, 1 Abb. (US) 525; Robert- of society demands a strict adher-
son V. State, 42 Ala. 509; State v. Mil- encetothis principle." Hebblethwaite
ler, 23 Minn. 352; Commonwealth v. v. Hepworth, 98 111. 126, 132. And
Munson, 127 Mass. 459; State r. Ilodg- see 20 Fed. Rep. 281, which sustains
skins, 19 Me. 155; Sc'houler, Hus. and tlie common-law validity of informal
Wife, §§ 31-34; Thoiey's Appeal, 93 marriage.
46
CHAP. I.] MARRIAGE. § 26
properly called, a marriage in the sight of God." ^ Did parties
therefore coming thus together mean fornication^ or did they
mean marriage ?
Here it is seen that there should not only be words of prom-
ise, but that they should be uttered with matrimonial intent..
To ascertain the purpose of the parties in each case, the courts
will look at all the circumstances, and even admit parol evi-
dence to contradict the terms of a written contract ; in this re-
spect modifying the ordinary rules of evidence. For writings
of matrimonial acknowledgment may have been interchanged
as a blind or cover for some scheme well understood between
the parties.^ Or again by way of jest.^ But, in cases of doubt,
the rule is to sustain the marriage as lawful and binding.
If there has been continued intercourse between the parties,
this presumption becomes of course still stronger. And if
promises were exchanged while one acted in good faith and
in earnest, the other is not permitted to plead a mental
reservation.^
Hence we may observe, generally, that a betrothal follow^ed
by copulation does not make this informal marriage a legal one,
when the parties looked forward to a formal marriage ceremony,
and did not agree to become husband and wife without it.^ If,
too, a woman, in surrendering her person to a man, is conscious
that she is committing an act of fornication instead of consum-
mating such a marriage, the copula cannot, for her sake, be con-
nected with any previous words of promise so as to constitute
a marriage.^ And a union once originating between man and
woman, purely illicit in its character, and voluntarily so, there
must appear some formal and explicit agreement between the
parties thereto, or a marriage ceremony, or some open and visi-
ble change in their habits and relations, pointing to honest in-
1 1 Hag. Con. 216 ; 4 Eng. Ec. 367, ^ //, . supra, § 23; McChirg v. Terry,
374 See 1 Bisliop, Mar. & Div. 5tli ed. 21 N. J. Eq. 225; Clark v. Field, 13 Vt
§§ 216-267, and cases cited ; 2 Kent, 460.
Com. 86 and n.\ 1 Eraser, Dom. Rel. * lb. And see 1 Eraser, Dom. Rel.
149,184,187,212. 213; Lockyer v. Sinclair, 8 Scotch
■■^ Dalrymple v. Dalrymple, 2 Hag. Sess. Cas. n. s. 582.
Con. 54, 105 ; 4 Eng. Ec. 485, 508, 509, ^ Pg^k v. Peck, 12 R. T. 485; Bever-
cited in 1 Bishop, Mar. & Div. 5tli ed. son's Estate, 47 Cal. 621.
§§ 239-241. 6 Port v. Port, 70 111. 484.
47
§ 26 THE DOMESTIC RELATIONS. [PART II.
tentions, before their alliance can be regarded as converted into
either a formal or an informal marriage.^
Nor is the issue between informal marriage and illicit inter-
course to be concluded by the conduct of the pair towards
society. They may, for convenience or decency's sake, hold
themselves out to third persons as man and wife, while yet sus-
taining at law, and intentionally, a purely meretricious relation.^
And yet a proper regard for the real intention of the co-
habiting pair encourages often the presumption of innocence
and good faith, even where the relation assumed was an il-
legal one. Supposing two persons to have made an informal
marriage, in the mistaken belief that the former spouse of
one of them was already dead, or that some sentence of
divorce left them, in like manner, free to unite. This case
should be distinguished from that of some original under-
standing for a mere carnal commerce. And if the impedi-
ment becomes removed in the course of their cohabitation
under such circumstances, and the pair live continuously
together as man and wife, no new ceremony, agreement, or
visible change in their relation would probably be deemed
requisite to establish matrimonial consent subsequent to the
removal of the impediment; for here the original intention
continues, but in the case of carnal commerce necessarily
changes, in order that an honest relation may be presumed.^
Disbelief in ceremonials, or conscientious scruples, may be
alleged in support of an informal marriage, by way of prefer-
ence, where such latter marriage is held lawful, and the parties
mutually contracted with the view of a lawful union.*
1 See Floyd v. Calvert, 53 Miss. 37 ; sent, and evidenced by habit and re-
Duncan V. Duncan, 10 Ohio St. 181 ; pute, without a public act.
Hunt's Appeal, 86 Penn. St. 294; Wil- - Howe's Estate, Myrick's Probate,
liams V. Williams, 46 Wis. 464 ; Barnura 100.
V. Barnum, 42 Md. 251. Cohabitation ^ ggg Dq Thoren v. Attorney-Gen-
and reputation afford no presumption eral, 1 H. L. App. 686, where the im-
of marriage under such circumstances, pediment followed divorce; here it was
11.3 Penn. St. 204. Perhaps the Scotch held, in conformity with the rule above
law is less emphatic on this point. It stated, that matrimonial consent after
is stated in Breadalbane's Case, L. R. the marriage impediment was removed
1 H. L. Sc. 182, that a connection be- might be presumed,
ginning as adulterous may, on ceasing * See Bissell v. Bissell, 55 Barb,
to be so, become matrimonial by con- 325. Aliter, where statutes positively
48
CHAP. I.]
MARRIAGE.
27
§ 27. Same Subject; Informal Celebration. — Words of pres-
ent promise, in order to constitute an informal marriage,
must contemplate a present, not a future, assumption of the
status. And herein lies a difficulty : that of discriminating
between actual marriage and what we now commonly term
an engagement. If the agreement be by words of present
promise, — as if the parties should say, "We agree to be
henceforth man and wife," — the marriage is perfect. The
form of expression is not material.^ And Swinburne says
that though the words should not of themselves conclude
require a ceremonial marriage. See
post, § 28.
A late interesting Scotch case illus-
trates the painful uncertainty which
hangs about these informal marriages.
A baronet of forty, and a bachelor,
whose dissolute habits were notorious,
had somewhat intimate relations with
the family of a man who made tish-
tackles. Entertained at the latter's
house, on a birthday occasion, with a
champagne supper, after which allu-
sion was made by the host to the bad
name he was getting with having the
baronet so much among his daughters,
the titled guest offered to shut [jcopie's
mouths ; he was poor and could not
marry now, he said, but would marry
after Scotch fashion. Then, kneeling
before one of the daughters, a damsel
of si.xteen, he took a ring from liis
pocket, placed it upon her third finger,
and said to her, " Maggie, you are my
wife before Heaven, so help me, O
God ! " and the two kissed each other.
The daughter said, "Oh, Major!" and
put her arms around his neck. The
baronet and the daughter were then
" bedded " according to the old Scotch
fashion. They lived together for some
weeks after this celebration, and met
at various times, but there appears to
have been no continuous cohabitation.
In about thirteen months Maggie had
a boy, whom she registered as illegiti-
mate; and, some eighteen months later
still, the baronet died. The parties to
this hasty and apparently unpremedi-
4
tated union had not, meantime, repre-
sented themselves as husband and wife;
and as for the baronet, he denied to
others that sucli relation existed, until,
when lying at the point of death in
delirium tremens, he seemed doubtfully
to admit it. Now, here was an infor-
mal marriage, with words of suitable
import, solemn and precise, followed
by consummation. Supposing this
ceremony to have been with marriage
intention, there was no reason for dis-
puting its validity; nor, indeed, on the
girl's behalf, provided slie took all in
seriousness, even though the baronet
himself jested. To be sure, he might
have been maudlin at the moment ;
on which point, liowever, the case did
not turn. The British House of Lords
reversed the decision of the Scotch
Court of Sessions, mainly upon cir-
cumstantial proof that both parties by
behavior subsequent to the ceremony
repudiated its force, and that neither,
in fact, had been in earnest. The pres-
ent issue involved the inheritance of
the baronet's estate at some lapse from
liis death. Both parents of the girl
were now dead ; the baronet had be-
gotten illegitimate offspring during hia
life elsewhere ; and instead of assert-
ing upon his death, as she might, that
this boy was his lawful child, Maggie
had at first claimed only a bastard's
support for liim. Steuart v. Robert-
son, L. R. 2 PI. L. Sc. 494.
1 1 Bishop, Mar. & Div. 5th ed. §§ 227,
229 ; 1 Fraser, Dom. Rel. 145-149.
49
§ 27 THE DOMESTIC RELATIONS. [PART H.
matrimony, yet the marriage would be good if it appeared
that such was the intent.^ The proposal of one must be
actually accepted by the other; yet such acceptance may
be indicated by acts, such as a nod or courtesy. The mutual
consent may be expressed orally or in writing.^ Written
promises are of course unnecessary ; though the reported cases
show frequently letters or other writings interchanged, from
which the intent was gathered. And in the celebrated Scotch
case of Dalrymple v. Dalrymijle, a marriage promise was es-
tablished from the successive united acknowledgments of the
parties as man and wife, the writings having been preserved
by the lady and produced by her at the trial. In this case
the principle was sustained, that words importing secrecy or
alluding to some future act or public acknowledgment, when
superadded to words of present promise, do not invalidate
the agreement.^ More uncertainty arises in matrimonial con-
tracts where a condition inconsistent with marriage is super-
added ; as if parties should agree to live together as man
and wife for ten years ; but bona fide intent may be fairly
presumed where there are no special circumstances to throw
light upon the conduct of the parties.*
Marriage by words of future promise is consummated when
two persons agree to marry at some future period and after-
wards actually do cohabit. The foundation of this doctrine
is the presumption that the parties meant right rather than
wrong, and hence that copulation was permitted on the faith
of the marriage promise. But in this class of cases it is
requisite that the promise de futiiro should be absolute and
mutual and in good faith. Mere courtship does not suffice,
1 Swinl). Spousals, 2d ed. 87. < See 1 Bishop, Mar. & Div. 5th ed.
2 See Sapp v. Newsoni, 27 Tex. 537, §§ 245-250 ; Currie r. Turnbull, Hume,
where marriage by means of mutually 373 ; 1 Fraser, Dom liel. 154. Sec Ham-
executing a bond or contract is sus- ilton c. Hamilton, 9 CI. & F. 327 ; Hantz
tained under the old law, which was of v. Sealy, 6 Binn. 405; Robertson v.
Spanish origin. But cf. State c. Miller, Cowdry, 2 West. Law Jour. 191; and
23 Minn. 852. in Bishop, supra. Bissell v. Bissell, 55
3 Dalrymple v. Dalrymple, 2 Hag. Barb. .325, shows an interesting state
Con. 54 ; 4 Eng. Ec. 485 ; Mclnnes v. of facts, upon which it was decided
More, Ferg. Consist. Law Rep. 33 ; that the marriage was valid.
Hoggan V. Cragie, Maclean & Uob. 942.
50
CHAP. I.] MARRIAGE. § 27
though followed by carnal intercourse.^ Nor in general do
words of promise with immoral conditions annexed. It is ad-
mitted that no familiarities short of the copula will convert
such loose espousals into matrimony,^ It is not clear whether
cohabitation after verba dc faiuro ever raises a conclusive pre-
sumption of marriage at law or not ; unquestionably the more
reasonable doctrine, however, is that it does not, and that the
intent of the parties may be shown as in other cases.^ But
innocence will be inferred, if possible, rather than guilt.* So it
has been said that where a legal impediment exists to a mar-
riage between persons living in licentious intercourse, as the im-
pediment sinks the status rises.^ It is the promise to marry
hereafter on which breach of promise suits are founded, often
with accompanying proof that sexual intercourse was permitted
on the faith of the promise ; here there was no marriage, but an
engagement to marry.^ In New York this doctrine of marriage
by words cU futnro is utterly repudiated, and in other States it
is maintained quite broadly that all informal marriages were
unknown to the English common law.'' This last has been
long a mooted point in the courts, and will ever remain so ; but
whatever may have been the historical fact, certain it is that
1 Reid V. Laing, 1 Shaw, App. Cas. 634 ; Swinb. Spousals, 2d ed. 225, 226 ;
440; Morrison v. Dobson, 8 Scotch Robertson z;. State, 42 Ala. 509.
Sess. 347, cited 1 Bishop, § 253 ; Bread- 5 i Bishop, Mar. & Div. 5th ed.
albane's Case, L. R. 1 H. L. So. 182 ; § 248 ; De Thoren v. Attorney-General,
Stewart v. Menzies, 2 Rob. App. Cas. 1 H. L. App. 686.
547, 591 ; 1 Eraser, Dom. Rel. 188 ; Reg. « Schouler, Hus. & Wife, §§ 40-51.
t;. Miliis, 10 CI. & F. 584, 780; Peck v. ■ Cheney v. Arnold, 15 N. Y. 345.
Peck, 12 R. I. 485 ; Beverson's Estate, But see Bishop, §§ 255-258 ; Bissell v.
Al Cal. 621 ; Dumaresly v. Fishiy. 3 Bissell, 55 Barb. 325. And see Deni-
A. K. Marsh. 368; 1 Bishop, Mar. & son r. Denison, 35 Md. 361; Holmes r.
Div. 5th ed §§ 253-265, and other cases Holmes, 1 Abb. (U. S.) 525; Duncan
cited; Port r. Port, 70 111. 484; Schoul- v. Duncan, 10 Ohio St. 181; Port v.
er, Hus. & Wife, § 38. Port, 70 111. 484. The opinion of Lord
2 1 Bishop, § 253. Stowell, in the case of Dalrymple v.
' See Schouler, Hus. & Wife, §§ 40- Dalrymple, to which we have alluded,
51, as to breach of promise. Seduction is an admirable exposition of the law
under breach of promise does not con- of informal marriages. It is a niastcr-
stitute a marriage. See, too, Morrison piece of judicial eloquence and care-
V. Dobson, 8 Scotch Sess. 347. ful research. Continuous cohabitation
* See Cheney v. Arnold, 15 N. Y. within Scotland establishes marriage
345; Duncan i;. Duncan, 10 Ohio St. in Scotch law, but cohabitation outside
181 ; and comments of Mr. Bishop, Scotland will not constitute marriage.
§§ 255-258; Reg. v. Miliis, 10 01. & F. Dysart Peerage Case, 6 App. Cas. 489.
61
§ 28 THE DOMESTIC RELATIONS. [PAKT II.
the necessity of a more formal observance of marriage has been
almost universally recognized ; and the very words, " marriage
in the sight of God," so familiar to the readers of the Scotch
matrimonial law, not only import the peculiar embarrassments
which attend the justification of such loosely contracted alli-
ances before the world, but attest the solemn character of this
institution. 1
§ 2(S. Same Subject ; Formal Celebration. — (2) All the
learning of informal marriages, if there was ever much of it,
was swept out of the English courts when formal religious cele-
bration was prescribed by positive statute. Ceremonials had
long been required by those canons upon which the ecclesias-
tical law was based. Lord Hardwicke's Act, passed in the
reign of George 11.,^ is the most famous of these statutes.
This act required all marriages to be solemnized in due form
in a parish church or public chapel, with previous publication
of the banns ; and marriages not so solemnized were pro-
nounced void, unless dispensation should be granted by special
license. Some harsh provisions of this act were relaxed in the
reign of George IV., but soon re-enacted.*^ More recent legis-
lation permits of a civil ceremonial before a register, to satisfy
such as may have conscientious scruples against marriage in
church * Such, too, is the general tenor of legislation in this
country ; the law justly regarding civil observances and public
registration sufficient for its own purposes, while human nature
clings to the religious ceremonial.^
Either celebration before a clergyman or with the partici-
pation of some one of such civil officers as the statute may
designate is therefore at the option of parties choosing at the
present day to marry. This is the law of England and America.
And the only controversies ever likely to occur in our courts
1 For a case arising on an indict- ^ 26 Geo. II. c. 33 (1753).
ment against a man for coliabiting with 3 3 Geo. IV.; 4 Geo. IV. c. 76.
a woman without formal marringe, but * See 6 & 7 Will. IV. c. 85 & c. 88 ;
iiniler a special contract for a life-nnion 7 Will. IV., and 1 Vict. c. 22, and 3 &
and joint accumulation of property and 4 Vict c. 92.
care of children, see State r. Miller, 23 6 gge 2 Kent, Com. 88-90 ; 1 Bishop,
Minn. 352. And see Commonwealth v. Mar. & Uiv. 5th ed § 279.
Munson, 127 Mass. 459. See, further,
Schouler, Hus. & Wife, §§ 38, 39.
52
CHAP. I.] MARRIAGE. § 28
would be where the language of the statutes in some particular
State left it doubtful whether marriages celebrated informally
were to be considered absolutely null. It is to be borne in mind
that Lord Hardwicke's Act is of too recent a date to be considered
as part of our common law. Was, then, marriage in facie ecclesice
essential in England before the passage of this act ? It is ad-
mitted that the religious marriage celebration was customary
previous to the Reformation. It is further allowed that the
church, centuries ago, created an impediment, now obsolete,
called " precontract," the effect of which was that parties en-
gaged to be married were bound by an indissoluble tie, so that
either one could compel the other to submit at any time to the
ceremonial marriage. But whether precontract rendered chil-
dren legitimate, and carried dower, curtesy, and the other in-
cidents of a valid marriage, is not clear. In 1844 the question,
whether at the common law a marriage without religious cere-
mony was valid, went to the English House of Lords, and re-
sulted in an equal division.^ And, curiously enough, such was
the fate of a similar case in this country before the highest
tribunal in the land.^ So that we may fairly consider the law
on this point as forever unsettled.^
Among most nations and in all ages has the celebration of
marriage been attended with peculiar forms and ceremonies,
which have partaken more or less of the religious character.
Even the most barbarous tribes so treat it where they hold to
1 Reg. V. Millis, 10 CI. & F. 534. tliat in these colonies tlie attendance
2 Jewell V. Jewell, 1 How. (U. S) of one in holy orders, and more espe-
219. cially of an ordained clergyman of the
3 See full discussion of this question, estahlished church, could not always
with authorities, in note to 2 Kent, Com. be readily procured. See 1 Bisiiop,
87; alsoinlBisiiop,.\Iar.&!)iv.§§269- Mar. & Div. 5th cd. §§ 279-282, and
282; Cheney i\ Arnold, 15 N. Y. 345. decisions collated; 2 Kent, Com. 87;
The American doctrine is, that the in- Reeve, Dom. Rel. 195 et seq.; 2 Greenl.
tervention of one in holij orders was not Ev. § 400.
essential at common law. This is the But in several States the contrary
view of Chancellor Kent, Judge Uecve, is declared to be the common law.
and Professor Greeideaf, as expressed 1 Bishop, ih. And statutory forms are
in their respective text-books ; also the declared requisite, and the doctrines of
general current of American decisions, informal marriage denied more or less
Mr. Bishop confirms these conclusions emphatically, as the foregoing pages
while suggesting new reasons for such have shown. Supra, § 26, note,
an American doctrine ; as, for instance,
58
§ 29 THE DOMESTIC RELATIONS. [PART II.
the institution at all. The Greeks offered up a solemn sacri-
fice, and the bride was led in great pomp to her new home. In
Rome, similar customs prevailed down to the time of Tiberius.
Marriage, it is true, degenerated afterwards into a mere civil
contract of the loosest description, parties being permitted to
cohabit and separate with almost equal freedom.^ The early-
Christians, there is reason to suppose, treated marriage as a
civil contract, yielding, perhaps, to the prevailing Eoman law.
Yet the teachings of the New Testament and church discipline
gave peculiar solemnity to the relation. And religious obser-
vances must have prevailed at an early date, for in process of
time marriage became a sacrament. In England, centuries
later, it needed only Lord Hardwicke's Act to apply statute
law to a universal practice; for although, in the time of Crom-
well, justices of the peace were permitted to perform the cere-
mony, popular usage by no means sanctioned the change.
Informal marriages are uncommon even in Scotland, where the
civil law prevails. In our own country it is not surprising
that local jurisprudence should have exhibited some signs of
reaction against ancient canon and kingly ordinance. Yet,
even with us, the almost universal custom repudiates informal
and civil observances ; and, secured in the privilege of choos-
ing prosaic and business-like methods of procedure, Christian
America yields its testimony in favor of marriage in facie
ecclesiccP'
§ 29. Same Subject; Formal Celebration. — But, out of con-
sideration for what may be termed the public, or natural and
theoretical law of marriage, many American courts have, to
1 Smith's Diet. Antiq. "Marriage;" of a marriage contract that is more
supra, Part I. sacred than tliat of other contracts,
2 See 2 Kent, Com. 89, and authori- that requires the interposition of a pei-
ties cited. son in iioly orders, or tliat it sliould he
We do not mean to imply that mar- solemnized in cliurch." Reeve, Dom.
riage is a sacrament, or that religious Rel. 196. At tiie time he wrote, was
ceremonies are essential to its due ob- not the practice prevailing in New
servance. We are speaking only of England contrary to his theory, as it
the universal testimony as to the fitness was before and as it remains still '
of peculiar and in general religious ob- And who has ever proposed in modern
servances. Judge Reeve, exhibiting times to perform a business contract in
his contempt for "Popish" practices, church'?
says, " There is nothing in the nature
54
CHAP. I.] MARRIAGE. § 29
a very liberal extent and beyond all stress of necessity, upheld
the informal marriage against even legislative provisions for
a formal celebration. Marriage being a matter of common
right, it is lately held by the liighest tribunal for harmonizing
the rule of States, that, unless the local statute which pre-
scribes regulations for the formal marriage ceremony positively
directs that marriages not complying with its provisions shall
be deemed void, the informal marriage by words of present
promise must be pronounced valid, notwithstanding statutory
directions have been disregarded.^
Whether we must absolutely accept tliis doctrine, or not,
in its full pernicious extent, and thus put legislators to the
use of express words of nullity in statutes which might other-
wise as well have been omitted, the main purpose of enforc-
ing upon civilized and populous communities marriage rites
appropriate to so solemn an institution being surely desirable,
it will be readily conceded that English and American tribu-
nals tend, in construing the marriage acts, to uphold every
marriage, if possible, notwithstanding a non-compliance with
the literal forms. And this is right ; for while formal celebra-
tion is a shield to honest spouses and their posterity, rigor in
the details of form, especially in inconvenient or trivial details,
or those which it is incumbent ratlier upon third persons to
respect, exposes them to new dangers. Thus is it as concerns
place ; ^ and as to the due proclamation of banns, collateral
points concerning ecclesiastical authority are inappropriate.^
Presumptions cannot be indulged against the continuance of a
hona fide marriage relation.* And a consistent reputation of
being married carries its full weight as to cohabiting parties,
who appear to have lived together as husband and wife.^ And
1 Meister v. Moore, 96 U. S. 76, cit- n. s. 781 ; Prowse v. Spurway, 26 W. R.
ing this as the rule in Michigan; Hutch- 116; Cannon y. Alsbury, 1 A. K. Marsh,
ins «. Kimniell, 31 Mich. 128 ; London- 76; Askew v. Dupree, 30 Ga. 178;
derry v. Chester, 2 N. H. 268-; Hebble- Blackburn v. Crawfords, 3 Wall. 175;
thwaite v. Hepworth, 98 III. 126. Holmes v. Holmes, 6 La. 463; Steven-
2 Queen v. Cresswell, 1 Q. B. 1). 446. son v. Gray, 17 B. Monr. 193.
And see Stallwood v. Tredger, 2 Phil- * Wiseman v. Wiseman, 80 Ind. 479.
lim. 287. s Lauderdale Peerage, 10 App. Cas.
» See Hutton v. Harper, 1 H. L. 692; Hynes v. McDermott, 91 N. Y.
App. 464; Sichel v. Lambert, 15 C. B. 451. See 28 Hun, 235; Northrop v.
55
§ 30 THE DOMESTIC RELATIONS. [PART II.
though the parties may have failed to observe certain formali-
ties of license or registry, their marriage will generally be held
good in both England and this country, even though the magis-
trate or clergyman be subject himself to a penalty for the ir-
regularity.^ On the other hand, our ceremonial statutes of
marriage, which require fulfilment at all, must, in fundamental
respects at all events, be complied with. Thus, the essence of
\ formal marriage seems to consist in the performance of the
ceremony by or in the presence of a responsible third person.
And hence, unless parties can take refuge in natural law and
; an informal marriage, they are not permitted to tie their own
knot.^
§ 30. Consent of Parents and Guardians. — The consent of
parents and guardians is one of those formalities which mar-
riage celebration acts now commonly prescribe in tlie interest
of society, as they do banns or the procurement of a license
generally for better publicity. Such consent was not neces-
sary to perfect a marriage at the common law. But Lord
Hardwicke's Act made the marriage of minors void without
consent of parents or guardians first obtained.^ This proved
intolerable. A hona fide and apparently regular marriage was
Knowles, 52 Conn. 522 The presump- count of the want of authority of such
tion of marriage arising from matri- person. Stimson, Am. Stat. Law, §6137.
monial cohabitation, declaration of the And a marriage among the Friends or
parties, and rei)utati()n, is not rebutted the Jews is also allowed to be solem-
by proof of a subsequent actual mar- nized after their peculiar customs, lb.,
riage. Bctsinger v. Chapman, 88 N. Y. § 6135.
487. 2 Commonwealth v. Munson, 127
Marriage certificates and copies of a Mass. 459. And see Milford v. VVor-
marriage record are treated with favor cester, 7 Mass. 48; Tholey's Appeal,
as proof. 60 N. H. 418; 78 Me. 20. 93 Penn. St. 36. But in Beamish i-.
The presumptions are in favor of hona Beamish, 1 Jur. n. s. Part II. 455, it was
fide marriage, while reputation alone held in Ireland that a clergyman might
will not establish that no marriage marry himself. See 1 Bisiiop, § 289.
existed. A verbal reservation just previous to a
1 Upon this point see, further, Schou- marriage ceremony by one of the par-
ler, IIus & Wife, § 35, and cases cited ; ties is not readily supposed to invali-
1 Bishop, Mar & Div. §§ 283, 287. There date the marriage. Brooke v. Brooke,
are various local statutes to the effect 60 Md. 524.
that where parties consummate a mar- 3 2Q Geo. II. c. 33. See 2 Kent,
riage in good faith before a justice of Com. 85; Iie.\ v. Ilodnett, 1 T. R. 06;
the peace or minister, &c., the mar- 1 Bishop, Mar. & Div. 5th ed. §§ 293-
riage shall not be deemed void on ac- 295, and cases cited.
56
CHAP. I.] MARRIAGE. § 30
in one instance .set aside, after important rights had inter-
vened, for no other cause than that an absent father, supposed
to be dead, but turning up unexpectedly, had failed to bestow
his permission, and the mother had acted in his stead.^ Gretna
Green marriages, on Scotch soil, became the usual recourse for
children with unwilling protectors.^ Hence the law was after-
wards modified, so that, without the requisite consent, mar-
riages, although forbidden, might remain valid ; ^ and these
features are found to characterize the marriage acts in the
different States of this country.'* Clandestine marriages are
doubtless to be discouraged, and the law will willingly inflict
penalties upon clergymen, magistrates, and all others who aid
the parties in their unwise conduct, the penalty serving in a
measure as indemnification to the parent or guardian ; but ex-
perience shows that legislation cannot safely interpose much
further.^
tUnder such statutes Twhich, however, vary in language
and scope in different States), it has been held that if a minor
has both parent and guardian, the guardian should consent in
preference ; though it might appear more proper to consider
which has the actual care and government of the minor. One
who has relinquished the parental control cannot sue for the
penalty ; but a father's unfitness is not pertinent to the issue
of uniting his minor child in marriage without his leave, nor
ground for accepting the mother's sole consent instead. In this
class of statutes the minister or magistrate who has made him-
1 Hayes v. Watts, 2 Phillim. 43. 205. And see Wood v. Adams, 35
2 Stat. 19 & 20 Vict. c. 96, to stop N. H. 32; Kent v. State, 8 Blackf 163;
these runaway matches, enacts that no Askew v. Dupree, 30 Ga. 173; Fitz-
irregular marriage contracted in Scot- patrick f. Fitzpatrick, 6 Nev. 63; Ad-
land sliall be valid unless one of the ams v. Outright, 53 111. .3(51 ; State v.
parties had his or her usual residence Dole, 20 La. Ann. 378. The language
in Scotland, or lived there for 21 days of some statutes leaves the point in
preceding the marriage. Lawford v. doubt as to whether marriage without
Davics, 39 L. T. n. s. 111. the consent of parents renders the niar-
3 Rex V. Birmingham, 8 B. & C. 29; riage void, or only subjects offending
Shelf. Mar. &Div. 309-322; Stat. 4 Geo. parties, including the person wlio per-
IV. c. 76. forms tlie ceremou}', to a penalty. But
* 1 Bishop, Mar. & Div. §§ .341-347, the latter is, of course, to be presumed
and cases cited ; Smyth v. State, 13 rather than tlie former.
Ark. 696; Wyckoff v. Boggs, 2 Halst. & See further, Schouler, Has. & Wife,
138; BoUin v. Shiner, 2 Jones (Pa.), §36.
67
§ 32 THE DOMESTIC RELATIONS. [PART II.
self amenable to the law cannot in general defend on the plea
that he acted in good faith. The expression of consent is in
some States made a prerequisite to granting the marriage
license.^
§ 31. Legalizing Defective Marriages; Legislative Marriage. —
Defective marriages, we may further observe, have in some in-
stances been legalized by statute ; as where parties within the
prohibited degrees of consanguinity or affinity have united. So
with marriages before a person professing to be a clergyman or
justice of the peace, but without actual authority. On princi-
ple, in fact, there seems no reason to doubt that any govern-
ment, through its legislative branch, may unite a willing pair
in matrimony, as well as pass general laws for that purpose.^
But though legislative divorces are not unfrequent, a legislative
marriage is something unknown, not to say uncalled for. And
in this country, questions of fundamental constraint under a
written constitution might arise, even where the cure only of
a defective marriage was sought by the legislature ; inasmuch
as the intervening rights of third persons might thereby be
prejudiced.^
§ 32. Restraints upon Marriage. — The policy of restraining
marriage is treated with disfavor by our law, which on the
contrary seems disposed to encourage the institution, though
not to the extent practised by some countries of openly pro-
moting its observance, or forcing private inclination in the
conjugal direction. Numerous cases, those particularly which
construe the provisions of testamentary trusts, have laid it
down that the general restraint of marriage is to be dis-
couraged. Accordingly a condition subsequent, annexed by
1 Schouler, Hus. & Wife, § 36. The Rice v. Rice, 31 Tex. 174. See 47 &
effort of the legislature is to exercise a 48 Vict. c. 20, which legalizes the mar-
salutary supervision by requiring a riages of certain members of the Greek
license to be taken out. church.
- Brunswick v. Litchfield, 2 Greenl. * As to the proof of a marriage and
28; Moore v. Whittaker, 2 Harring. legal presumptions, see 1 Bishop, Mar.
50; Goshen ?>. Richmond, 4 Allen, 458; & Div. 5tii ed. § 432 et seq.; Schouler,
1 Bishop, Mar. & Div. 5th ed. §§ 657- Hus. & Wife, §§ 38, 39; su/vn, § 29.
659. As to the effect of a Texas stat- See also promises to marry, Schou-
ute, which relaxed old requirements in ler, Hus. & Wife, §§ 40-61.
legalizing an irregular marriage, see
68
CHAP. I.] MARRIAGE. § 32
way of forfeiture to a gift, legacy, or bequest, in case the donee
or legatee should marry, will be held void and inoperative, as
a restraint upon marriage, and so as to both income and capi-
tal.^ But marriage and remarriage are differently viewed in
this respect ; and it is well settled that forfeiture by condition
subsequent in case a widow shall marry again must be upheld
as valid, whether that widow be the beneficiary through her
husband or some other person. Does the latter rule apply
equally to widow and widower, woman and man ? Upon full
consideration the English chancery held a few years ago, on
appeal (reversing the decision of the lower tribunal), that it
does/^
The latest English decisions, on the whole, do not strenu-
ously resist these restraints upon marriage in testamentary
trusts.'^ And it is doubtful whether the rule discouraging
restraint of marriage can extend to devises of land ; though on
principle there should be no distinction between devises and
gifts or bequests in this respect.'*
1 See Bellairs v. Bellairs, L. R. 18 rights, as between the sexes, in the
Eq.,510, and cases cited. disposal of property. No act of parlia-
^ Allen- V. Jackson, 1 Cli. 1). 399, ment or decision of a court, he ob-
reversing s c. L. R. 19 Eq. 631. See served, established any distinction here
opinion of James, L. J., and autiiorities between the second marriage of man or
cited ; tliis interesting point being thus woman, and he knew of no reason for
raised for tiie first time. making it.
Rights are equal as to marrying ^ It is held that a gift to one's widow
again, so far as widow and widower on condition that she retire immediately
are concerned, as all will readily admit, into a convent is upon a good condition
The lower court was probably influ- precedent. Duddy v. Gresham, 39 L.
enced by considerations which medical T. n. s. 48. Also, that it is a good con-
men adduce, showing that marriage is dition subsequent which forfeits a gift
more essential to a man's continuous to one's brother in case he marries "a
well-being than a woman's, and that a domestic servant," or one of lower de-
widow, on the whole, is less likely to gree, degrading his own family. Jen-
have sufficient reason for marrying ner r. Turner, 29 W. R. 99.
again tlian a man. But this argument, * Jones v. Jones, 1 Q. B. D. 279.
if sound, is perhaps far-fetched, and And seei Hogan v. Ciirtin, 88 N. Y.
James, L. J., on appeal, treated the 162.
subject more from the aspect of equal
69
§ 84 THE DOMESTIC RELATIONS. [PART H.
CHAPTER II.
EFFECT OF MAERIAGE ; PERSON OF THE SPOUSE.
§ 33. Effect of Marriage ; Order of Legal Investigation. —
When the parties to a lawful marriage have once completed
the ceremony, or, as it is said, have executed the contract of
marriage, they are admitted into the marriage relation, and
their mutual rights and obligations become at once bounded,
protected, and enforced by the general law of husband and
wife. What that law is will constitute the topic of discussion
in this and succeeding chapters of this part. We have already
alluded to the confusion and uncertainty which exist at the
present day, and particularly in many of the United States, in
the law of husband and wife, owing to the transition period
through which we seem to be passing from the marriage rela-
tion of the common law to that known to the civil law.^ Our
subject will be most conveniently treated by taking up the
common-law doctrine first, and thoroughly examining its prin-
ciples ; then passing to the modern or civil-law doctrine for
discussion in like manner. First, then, the rights and disabili-
ties of marriage on the coverture scheme ; secondly, the rights
and disabilities of marriage on the separate existence scheme,
or with the innovations which equity and modern statutes
have made.
But since these rights and disabilities have varied little, ex-
cept as to the wife's property, we may here investigate those
general principles of the common law which concern the person
of the spouse, once and for all.
5 34. Person of the Spouse ; Coverture Principle ; Husband
Head of Family. — The general principle of coverture, as de-
fined by Blackstone and other common-law writers, is this :
that by marriage the husband and wife become one person in
law; that is to say, the very being or legal existence of the
1 See Introductory, §§ 4-8.
60
CHAP. II.] PERSON OP THE SPOUSE. § 34
woman is suspended during the marriage, or, at least, is in-
corporated and consolidated into that of the husband, under
whose wing, protection, and cover she performs everything ; and
is therefore called in the law-French a feme covert, fcemina viro
co-opcrta ; is said to be covcrt-baron, or under the protection and
influence of her hciron or lord ; and her condition during her
marriage is called her coverture} For this reason the term
applied to the relation of husband and wife in the old books is
haron and feme. Upon this fundamental principle depend, at
the common law, the general rights, duties, and disabilities of
marriage. But this very definition shows inaccuracy, to say
nothing of unfairness of application. Here are two conflicting
notions : one that the existence of the wife is actually lost or
suspended ; the other that there is still an existence, which
is held in subordination to the will of her lord and master,
which last the word coverture fitly expresses. It will appear
in fact that while some of the wife's disabilities seem based
upon the one notion, others are based upon the latter, and
probably more correct one. The wife's disabilities are deemed
by Blackstone " for the most part intended for her protection
and benefit." And he adds, by way of rhetorical period, " so
great a favorite is the female sex of the laws of England ! "
a proposition which his commentators have gravely proceeded
to dispute and dissect, and, it must be added, not without good
success.^
The husband's right of dominion is therefore fully recognized
at the common law. And never was the English doctrine, de-
spite its failings, set forth in more terse and forcible language
than in the words of Sir Thomas Smith : " The naturalest and
first conjunction of two towards the making a further society
of continuance is of the husband and wife, each having care of
the family: the man to get, to travel abroad, and to defend;
the wife to save, to stay at home, and to distribute that which
1 1 Bl. Com. 442; Co. Litt. 112; 2 a strain of playful gallantry, not un-
Kent, Com. 129. common with lecturers. Even Clian-
2 1 Bl. Com. 445, notes by Christian, cellor Kent's observations are not free
Hargrave, anrl others. It is probable from suspicion. See 2 Kent, Com. 182,
that Blackstone used this expression in closing sentence at foot of the page.
61
§ 35 THE DOMESTIC RELATIONS. [PART II.
is gotten for the nurture of the children and family ; which to
maintain God has given the man greater wit, better strength,
better courage, to compel the woman to obey by reason or force ;
and to the woman beauty, fair countenance, and sweet words,
to make the man obey her again for love. Thus each obeyeth
and commandeth the other ; and they two together rule the
house so long as they remain in one." ^
In accordance with these principles, and perhaps, too, the
laws of nature and divine revelation, the husband is the head
of the family, and dignior persona. As to the more strictly per-
sonal consequences of the marriage union, his rights and duties
have suffered no violent change at our modern law. It is for
the wife to love, honor, and obey : it is for the husband to
love, cherish, and protect. The husband is bound to furnish
his wife with a suitable home ; to provide, according to his
means and condition of life, for her maintenance and support ;
to defend her from personal insult and wrong ; to be kind to
her ; to see that the offspring of their union are brought up
with tenderness and care ; and generally to conduct himself,
not according to the strict letter of the matrimonial contract,
but in its spirit. So long as he does this, his authority is
acknowledged at the common law ; and if the wife's wishes and
interests clash with his own, she must yield.^
§ 35. Duty of Spouses to Adhere or Live Together. — Mar-
riage necessarily supposes a home and mutual cohabitation.
Each party has therefore a right to the society of the other.
They married to secure such society. And the obligation rests
upon both to live together, — or, as the expression sometimes
goes, to adhere. This is the universal law.^ Its observance is
essential to the mutual comfort of husband and wife, and the
well-being, if not the existence, of their children. But to this
rule there are obvious exceptions. The wife is not bound to
live with her husband where he is imprisoned, or has otherwise
1 Commonwealth of England, Book but also " with authority over his wife.
1, ch. 2, quoted in Bing. Inf. & Cov. He is to practise tenderness and affec-
p. 184. tion, and obedience is her duty." Oli-
2 Lord Stowell observes that the law ver v. Oliver, 1 Hag. Con. 361 ; 4 Eng.
intrusts the husband not only with a Ec. 429.
certain degree of care and protection, ^ 1 Fraser, Dom. Rel. 447, 452.
62
CHAP. II.] PERSON OF THE SPOUSE. § 36
ceased to be a voluntary agent and to perform the duties of a
husband. Nor if he is banished. For marriage does not force
the parties to share the punishment of one -another's crimes.
This was the rule of the civil as it is that of the common law.^
And in general such causes as would justify divorce in any
State justify the innocent party in breaking off matrimonial
cohabitation likewise. But partial and temporary separation
for purposes connected with the husband's profession or trade —
as, for instance, where he is an army officer — constitutes no
breach of the marriage relation unless continued beyond nec-
essary and reasonable bounds, or accompanied by negligence to
provide, while absent, for the maintenance of wife and family.
And under some other circumstances cohabitation may be
properly allowed to cease for a time without involving the
breach of marital obligations.^
§ 36. Breach by Desertiou, &c. ; Duty of making Cohabitation
Tolerable. — This subject is most commonly considered where
redress is sought because one or the other party deserts ; such
desertion formerly calling for the restitution of conjugal rights,
but in these days furnishing rather a cause of divorce to the
injured spouse, not to speak of the enlargement of an aban-
doned wife's rights and responsibilities, despite the rules of
coverture. These matters, and particularly divorce for deser-
tion, are found duly considered in other books, and the duty
of matrimonial adherence more fully developed.^ We observe
here that, in conformity to the world's customs and general
principle, it is the wife's actual withdrawal from home which
admits the less readily of a justifying explanation, and exposes
the pair to scandal* But the husband may be at fault by mak-
ing the home unfit for an honest wife to occupy with dignity,
or by turning his wife out, or even by encouraging her to leave
it when it was right that she should remain.^ It happens often
that the husband instead forsakes the home, leaving the wife
1 Co. Litt. 1.3.3; 1 Bl. Com. 443; 1 » See Schouler, Hus. & Wife, Part
Fraser, Dom. Rel. 448; 2 Kent, Com. IX ; 1 Bishop. Mar. & Div.§§ 771-810.
154. * lb ; Starkey v. Starkey, 21 N. J.
2 See 2 Kent, Com. 181 ; 1 Fraser, Eq 135
Dom Rel 240 et seq. ; Ih. 447; Chre- ^ McCormick y. McCormick, 19 Wis.
tien i;. Husband, 17 Martin (La.), 60 172.
63
§ 36 THE DOMESTIC RELATIONS. [PART II.
in it, such withdrawal being rightful or wrongful according to
the circumstances.^
Mere frailty of temper on a wife's part, not shown in marked
and intolerable excesses, would hardly justify a husband in
withdrawing the protection of his home and society.^ But it
is held that the wife's violent and outrageous behavior justifies
a husband in seeking divorce from bed and board, and, seem-
ingly, in leaving her.^ The moral duty of living together in-
volves, doubtless, the reciprocal obligation of making that life
agreeable, according to the true status of the married parties ;
but the extent of the legal duty is not so easily definable.
Upon the point of redress, in fact, codes widely differ ; the
practical difficulty being, under our laws, that married spouses
have little remedy until it comes to the last extremity of di-
vorce.* Manifestations of bad temper on one side must nec-
essarily weaken the duty of adherence on the other ; extreme
cruelty, or cruel and abusive treatment (which on a husband's
part may consist in mental torturing and not in physical vio-
lence alone) is now frequently made a legal cause of divorce ;
yet, at the same time, mutual forbearance and self-sacrifice are
essential to the well-being of every household ; marriage, when
rightly considered, working a harmony of character by the
constant attrition to which the two natures are exposed. Ill-
treatment, too, followed by a peaceable and on the whole
harmonious life together, is not to be brought up long after
against the offender.^
Under this head we may add that the duty of cohabitation
or adherence is not fulfilled by literal or partial compliance.
Thus the refusal of sexual intercourse and the nuptial bed,
without good excuse, is a serious wrong which husbands, at
all events, are disposed to construe into justifying ground for
divorce.^ Living in the same house, but wilfully declining
1 MoClurg's Appeal, 66 Penn. St. » Lynch v. Lynch, ;]3 Md. 328.
366. See, as to divorce for desertion, * See, as to divorce for cruelty,
Schouler, Hus. & Wife, §§ 615-5-23. Schouler, Hiis. & Wife, §§ 5U7-5U.
2 Yeatman v. Yeatman, L. R. 1 P. & » //>.; 49 Midi. 6n0.
D. 489; Jolmson v. Johnson, 49 Mich. 6 See Sclioiiler, Hus. & Wife, § 528;
639. Nor even her occasional inteniper- Southwick v. Southwick, 97 Mass.
ance, semh/e, according to Heyes v. 327 ; 1 Bishop, Mar. & Div. 5th ed.
Heyes, 13 P. D. 11. § 778.
64
CHAP. II.] PERSON OF THE SPOUSE. § 37
matrimonial intimacy and companionship, is per se a breach of
duty, tending to subvert the true ends of marriage. So, too, a
husband who unreasonably withdraws cohabitation from his
wife may be deemed guilty of legal desertion, even though he
continue to support her.^ But sexual intercourse, the use of
the same chamber, or the occupation of the same bed should
be mutually regulated with considerations of health as well as
kindly forbearance ; and a husband who wantonly abuses his
wife so as to inflict needless pain and injury upon her, who re-
gards only his animal cravings and disregards her health and
delicate organization, is guilty of legal cruelty.^
§ 37. The Matrimonial Domicile. — As there must be a
home, so there is also a matrimonial domicile of the parties
recognized by universal law. And the husband, as dignior per-
sona, has the right to fix it where he pleases. The wife's
domicile merges in that of her husband. Grotius says : " De
domicilio constitucre jus est marito." ^ But this applies only to
the real domicile of the husband; not to a fictitious place of
residence which he may take up for a special purpose, or as an
involuntary agent. In a genuine sense the domicile of the
husband becomes that of the wife, and wherever he goes she is
bound to go likewise ; not, however, unless his intent be hona
fide and without fraud upon her person or property rights.* Tn
certain cases the wife may perhaps be said to acquire a domi-
cile or legal forum for divorce and similar purposes.^ But the
exception, if it exist, is limited by the necessity. To a wife
living apart from her husband, no separate domicile is conceded
for testamentary purposes.*^ Nor does a change of the wife's
abode change the husband's or the matrimonial domicile.'^
1 Yeatnian v. Yeatman, L. R. 1 P. & Hoffman v. Ward, 4 Rcdf . Surr. 244 ;
D. 489. King v. Foxwell, 3 Ch. D. 518 . Scliouler,
2 lb. ; Moores v. Moores, 1 C. E. Hus. & Wife, § 60. And see elemen-
Green, 275 ; Melvin v. Melvin, 58 N. H. tary works on Domicile.
569. See Shaw v. Shaw, 17 Conn. 189, ^ ggg Divorce, post, c. 17.
criticised in 1 Bishop, § 760. 6 Paulding's Will, 1 Tuck. (N. Y.)
3 2 Kent, Com. 181 ; 1 Eraser, Dom. 47.
Rel. 240 et seq. ; lb. 447. 7 Porterfield v. Augusta, 67 Me. 556 :
* 1 Eraser, Dom. Rel. 447, 448 ; 1 Scholes v. Murray Iron Works Co., 44
Burge, Col. & For. Laws, 260 ; Whar- Iowa, 190 ; Johnson v. Johnson, 12
ton, Confl. Laws. §§ 43-47. See Von Bush, 485.
6 65
§ 38 THE DOMESTIC RELATIONS. [PART II.
§ 38. Same Subject; Husband's Right to establish Domicile.
— Any contract, therefore, which the husband may make with
his wife or her friends, before marriage, not to take her away
from the neighborhood of her parents, is void. Pubhc policy
repudiates all contracts in restraint of such marital rights.
There might be circumstances under which such a promise
would be reasonable, but at best it can create a moral obliga-
tion only. The husband has the right to establish his domicile
at any time, wherever he pleases, and the wife must follow
him through the world.^ If she refuses to go with him, his
own conduct being upright and honorable in the premises, she
places herself in the wrong, and while she persists he is not
bound to support and maintain her.^
But the courts of our day hesitate to apply a rule so appar-
ently harsh as that announced in the last sentence. With the
increasing regard for female privileges has grown up a strong
disposition to reduce the husband's right over the matrimonial
domicile to a sort of divisum imperium. The question is not
new, whether reasonable exceptions to this rule may not exist ;
as, for instance, where the husband proposed to take the wife
into an enemy's country while war was waging, or on a journey
perilous to her life.^ Such exceptions may be justified, it is
generally admitted, on the ground that the wife would be there-
by exposed to bodily harm. But whether the apprehension be
that of personal violence, or ill health from the fatigue of a
journey or the change of climate, little favor seems to have
been shown to the wife either at the English or Scotch law,
unless the circumstances rendered a change of domicile on her
part equivalent to a moral suicide.* At the present day a rule
less stringent would doubtless be applied. A husband would
not be permitted to remove his wife to some remote and unde-
sirable place for the sake of punishing or tormenting her, or
so as to compel her to stay alone where he did not mean to
reside himself ; for this would not be fixing the matrimonial
1 Hair v. Hair, 10 Rich. Eq. 163; 2 Babbitt v. Babbitt, 69 111. 277.
McAfee v. Kentucky University, 7 ^ Boyce v. Boyce, 23 N. J, Eq 337.
Bush, 135 ; Gahn v. Darby, 36 La. Ann. * See 1 Eraser, Dom. Rel. 448.
70.
66
CHAP. II.] PERSON OF THE SPOUSE. § 39
domicile with honest intent. Xay, more, there are several re-
cent decisions in this country which point to an obligation on
the husband's part to show reasonable cause why his wife
should follow him when he changes his abode>
This later uncertainty in the law is unfortunate. Where
a pair disagree in the choice of a home, either the right of
decision must belong to one of them, or the court should sit
as umpire. No one has suggested that the wife should choose
the domicile, nor can judicial interference be well called in,
except to divorce the parties. Yet, without a home in com-
mon, of what avail is matrimony ? We cannot but regret that
any of our courts should seem to legalize domestic discord;
that there should be good American authority to sanction the
wife's refusal to accompany her husband on any such trivial
pretext as " the dislike to be near his relatives." ^ Perhaps,
however, the harsh remedy usually sought to be applied in
modern cases — divorce for the wife's wilful desertion — may
tempt our tribunals to relax the old doctrine of conjugal obe-
dience for her benefit. For, after all, the decision is in favor of
prolonging the marriage relation.^
§ 39. Domicile relative to Alien and Citizen. — As corollary
1 Bishopr. Bishop, .30 Pcnn. St. 412; she left him for England he acted
Gleason v. Gleason, 4 Wis. 04 ; Powell kiniUy to her, promised to allow her
V. Powell, 29 Vt. 148. See Moffatt i: £30 a year, but made no arrangement
Moffatt, .5 Cal. 280; Cutler i-. Cutler, 2 for a permanent separation. Their
Brews. (Pa.) 511. correspondence continued until 1851,
'^ Powell V. Powell, 29 Vt. 148. when the husband asked her to return,
3 The Englisii rule as to the wife's and provided funds for her passage, but
duty of adherence still continues strict, she wrote that her health would not
A wife petitioned for divorcie on the permit her to do so. Here all corre-
ground of her husband's desertion, spondence and intercourse ceased until
The facts showed that shortly after 1856, when an allowance was again
her marriage she went with her hus- effected through the intervention of a
band to .lamaica, where he held an ap- relative ; this the husband continued
pointment from which he derived not until 1860, and then stopped it. He
more than £100 a year, and in conse- appears to have led a loose life after
quence of his slender income she had the wife's refusal to return. The court
to put up with some hardship. Her held that these circumstances did not
health suffered, and in less than a year, constitute desertion on the husband's
namely, in 1846, she returned to Flng- part, nor entitle her to divorce. Keech
land. Her husband continued abroad, v. Keech, L. R. 1 P. & D. 641 (1868).
during the greater part of the time at Adultery being proved, however, di-
Jamaica, where he succeeded in getting vorce was granted on that ground.
a more lucrative appointment. When
67
§ 41 THE DOMESTIC RELATIONS. [PART II.
of the general proposition already announced, it is held that
an alien woman marrying with a citizen of the United States
becomes, by virtue of such marriage, a citizen also, with the
usual capacity as to purchase, descent, and inheritance ; ^ and
that of aHens intermarried, if the husband becomes a natural-
ized citizen, the wife in like manner is naturalized, even though
she has not yet migrated from her native country.^
§ 40. Change of Wife's Name by Marriage. — Marriage at
our law does not change the man's name, but it confers his
surname upon the woman. Until a decree of divorce, giving
a married woman leave to resume her maiden name, goes into
full effect, or widowhood is succeeded by a new marriage and
another husband, she goes by her former husband's surname.
This is English and American usage. And with this actual
marriage name, it would appear that a wife can only obtain
another name by reputation.^ But in consideration of the rule
that a person has the right to be known by any name he or she
chooses, proceedings under the assumed name of a married
woman have been upheld after judgment.*
§ 41. Right of one Spouse to the other's Society ; Suit for
Enticement ; Alienation of Affections, &c. — Each spouse is en-
titled to the society and companionship of the other. Inas-
much as the husband is thus entitled, he may recover his wife
from any person who would withhold or withdraw her from
him. This is a well-understood principle the world over.^
And the common law gives him the right to sue for damages
all persons who seek to entice her away, or induce her to live
apart from him.^ But in such cases malice and improper mo-
tive are always to be considered ; and parents and near rela-
tives stand on a different footing from strangers. So is the
previous conduct of the husband towards his wife a material
element to be considered ; since this, and not the interference
1 Luhrs V. Eimer, 80 N. Y. 171 ; 6 1 Ohitty, Pleading, 91 ; HutcLe-
Kelly V. Owen, 7 Wall. 496. son v. Peck, 5 Johns. 196: Friend v.
2 Kelly ('.Owen, 7 Wall. 496; Head- Thompson, Wright, 6-36; Rabe v.
manr. Rose, 63 Ga. 458. Hanna, 5 Ham. 5.30; 47 Barb. 120;
8 Fendall r. Goldsniied, 2 P. D. 263. Rinehart v. Bills, 82 Mo. 534 ; Bennett
* Clark V. Clark, 19 Kans. 522. v. Smith, 21 Barb. 4-39; 30 I^arb. 6G3;
6 1 Eraser, Dom. Rel. 240, 241. Modisett v. McPike, 74 Mo. 636.
68
CHAP. II.] PERSON OF THE SPOUSE. § 41
of others, may have occasioned the separation. It is one thing
to actively promote domestic discord, but quite another to
harbor, from motives of kindness and humanity, one who seeks
shelter from the oppression of her own lawful protector.
Yet such conduct, whatever the motives, is, on the part of
strangers, exceedingly perilous, generally open to misconstruc-
tion, and never to be encouraged. They should leave the par-
ties to their lawful remedies against one another. With parents
it is different. There are several cases in the American reports
where a father is not only held to be absolved from liability for
sheltering his daughter, who has fled from a drunken and pro-
fligate husband, but even stimulated to do so. " A father's
house," says Chancellor Kent, " is always open to his children ;
and whether they be married or unmarried, it is still to them a
refuge from evil and a consolation in distress. Natural affec-
tion establishes and consecrates this asylum." ^ But this does
not justify even a parent in hostile interference against the
husband: for the latter's rights are still superior; and the
father must give up his daughter and the marriage-offspring,
whenever she wishes to return, unless the proper tribunal has
decreed otherwise ; though he might, we suppose, by fair argu-
ments, urged to promote her true good, seek to dissuade her
from returning. The legal doctrine seems to be this, that
honest motives may shield a parent from the consequences of
indiscretion, while adding nothing to the right of actual con-
trol ; the intent with which the parent acted being the mate-
rial point, rather than the justice of the interference ; that a
husband forfeits his right to sue others for enticement, where
his own misconduct justified and actually caused the separa-
tion, — but that otherwise his remedy is complete against all
persons whomsoever, who have lent their countenance to any
scheme for breaking up his household.^
1 Hutcheson v. Peck, 5 Johns. 196. before the Supreme Court of North
See als(j Friend v. Thompson, Wright, Carolina in 1849. The defendant liad
636; Bennett v. Smith, 21 Barb. 439; enticed away the wife of tlie plaintilf.
20 N. Y. Supr. 204 ; Payne r. Williams, The two afterwards entered into an
4 Baxt. 583 ; White ?'. Ross, 47 Mich, agreement that the defendant should
172, 49 Mich. 529. keep the plaintiff's wife and child at
* A curious case of this sort came his own liome, and should raise, edu-
69
§42
THE DOMESTIC RELATIONS.
[PAKT II.
Differences of sex may account for a denial of the enticement
suit to the wife, though her right to her husband's society is
unquestionable. Woman claims protection where man acts for
himself. There is some contradiction of the cases on this point.*
With the increase of divorce facilities the general principle of
suing for enticement may part with some of its force even for
the husband.2 The right of action for criminal intercourse with
one's spouse rests on stronger ground than mere enticement.^
And aside from debauchery or enticement, the husband's action
lies for the alienation with bad motives of his wife's affections.*
§ 42. Husband's Duty to render Support. — This subject
will be considered later in treating of the wife's necessaries,
when it will also appear that our married women's acts tend
to certain changes, not so much of principle as application, by
extending the liability for family supplies to property such as
wives now hold to their separate use. The general rule of law
is that the husband, the spouse who holds and fills the purse,
is bound to provide the family support and means of living.
cate, anrl provide for the cliild by
appropriating tlie portion of property
formerly intended for tlie motlier's pro-
vision ; that he should not be liable
for having enticed tlie wife away ; and
that the plaintiff might visit his wife
and child not exceeding four or five
days at a time. The wife was not
made a party to the contract, though
it appears to have been made with
her approval. The plaintiff afterwards
rescinded the agreement, demanded
his wife, and, upon refusal of the de-
fendant to give her up, sued him in
damages. The court sustained him ;
pronouncing the contract to be " neither
in form or substance a contract for a
separation, but simply a license to har-
bor the wife and child, securing tlie
defendant against any legal responsi-
bility for so doing until withdrawn."
And it was further intimated that
such a contract was absolutely void as
against public policy. Barbee v. Artn-
stead. 10 Ired. 680. See also 1 Burixe,
Col. & For. Laws, 238, for a like doc-
trine at the civil law.
70
1 Van Arnam ?>. Ayers, 67 Barb,
544 ; Logan v. Logan, 77 Ind. 558. But
see Breman ?> Paasch, 7 Abb. (N. Y.)
N. Cas. 249 ; Jaynes v. Jaynes, 39 Hun,
40.
'^ A wife having just cause for sep-
aration or divorce may be afforded
shelter by even a stranger, acting in
good faith. Modisett v. McPike, 74
Mo. 636.
3 Michael v. Dunkle, 84 Ind. 544 ; 2
Ld. Raym. 809 ; 7 Mod. 78 ; 2 Chitty,
Pleading, 855. The husband may sue,
thus, for the loss of his wife's society, if
he has not renounced his marital rights,
although such criminal converse was
without her consent, and caused no
actual loss of service. Bigaouette v.
Paulet, 134 Mass. 123. Cf. Neilson v.
Brown, 13 R. I. 651. That the plaintiff
and his wife were divorced before the
suit, is no defence ; nor can the wife
give such consent to the seduction as
will bar the husband's rigiit of action.
Wales ^^ Miner, 89 Ind. 118.
i Kinehart v. Bills, 82 Mo. 534.
CHAP. II.] PEfiSON OF THE SPOUSE. § 44
The style of support requisite — of lodging, food, clothing,
medical attendance, and the like — is such as befits his means
and condition of life. A wife is not usually justified in leaving
her husband and the common home so long as the husband
treats her kindly, and provides to the extent of his ability, even
though retrenchment in the style of living may be needful from
one cause or another.^ And it is his habitual conduct in this
respect rather than some isolated instance which should be
chiefly regarded in a divorce for his neglect.^ But reducing the
wife's comforts needlessly, and from sinister motives, she may
justly complain of,^ and criminal prosecution with recognizance
is found to aid the common law in compelling a competent hus-
band to support his family.
§ 43. Wife's Duty to render Services. — The wife's obliga-
tion to render family services is at least co-extensive with that
of the husband to support her in the family, these services and
the comfort of her society being in fact the legal equivalent of
such support.* Hence, as it is held, the wife of an insane man
cannot claim special compensation out of his estate for taking
care of him, even though such were the express contract be-
tween herself and the guardian.^ Doubtless it would be bad
policy to permit marital services on either side, however meri-
torious, to become a matter for money recompense, and to strike
a just balance is impossible.
§ 44. Right of Chastisement and Correction. — Though either
spouse may be the more dangerous companion, because of
greater physique, daring, recklessness, or depravity, nature
gives the husband the usual advantage. In a ruder state of
society the husband frequently maintained his authority by
force. The old common law recognized the right of moderate
correction, which, according to Blackstone, was deemed a privi-
lege by the lower orders in his day.^ The civil law went still
1 See Skean v. Skean, 33 N. J. Eq. * Randall v. Randall, 37 Mich. 563,
148 ; James v. James, 68 N. H. 2()6. per Cooley, J. ; Grant v. Green, 41 Iowa,
2 Jenness v. Jcnness, 60 N. H. -231. 88.
3 Boyce v. Boyce, 23 N. J. Eq. 337. 5 Grant v. Green, 41 Iowa, 88.
And see Necessaries, c. 3 ; also People ® 1 Bl. Com. 444, 445. In Adams v.
V. Pettit, 74 N. Y. 320 ; Schouler, Hus. Adams, 100 Mass. 365, Chapman. C. J.,
& Wife, § 67. states the old form of the writ of suppli-
71
§ 44 THE DOMESTIC RELATIONS. [PART II.
further, permitting, in certain gross misdemeanors, violent flog-
ging with whips and rods.^ But since the time of Charles II.
the wife has been regarded more as the companion of her hus-
band ; and this right of chastisement may be regarded as
exceedingly questionable at the present day. The rule of per-
suasion has superseded the rule of force. Few cases of impor-
tance are to be found on this subject. In England, not many
years ago, where a wife sought divorce from bed and board for
cruelty, it was shown that the husband had spit upon her,
pushed and dragged her about the room, and once slapped her
face ; and upon this proof the divorce was granted.^ The right
to inflict corporal punishment upon the wife has never been
favored in this country, and its exercise would now generally
justify proceedings for a divorce. Indeed, our latest State de-
cisions emphatically deny that the right longer exists either in
England or this country.^ It may be added that the wife
should not chastise her husband ; nor provoke harsh treatment
by her own violence, foul abuse, and misconduct.*
But either spouse may use force in self-defence. And the
husband may restrain his wife from acts of violence against
others as well as himself in person or property, — most cer-
tainly wherever the law makes him answerable in damages for
her misbehavior ; ^ and may prevent her unwarrantable inter-
ference with the due exercise of his parental authority.
cacit for protection of the wife against cited. In State v. Rhodes, 1 Phill.
lier husband ; viz., tiiat the husband (N. C.) 453, the right of moderate cor-
should not do otlier damage to her per- rection was recently claimed. But the
son " tlian wliat reasonably belongs to opposite rule is announced in the later
her husband for the purpose of the gov- case of State v. Oliver, 70 N. C 60.
ernment and chastisement of his wife Corporal chastisement is not justified,
lawfully." tliough the wife be drunk or insolent.
1 Flage/Iis et fustihus acriter verherare Conmionwealth v. McAfee, 108 Mass.
uxorem. See 1 BI. Com. 445. 458; Pearman v. Pearnian, 1 Swab. &
2 Saunders v. Saunders, 1 Rob. Ec. T. 601. Divorce has been granted
549. And see Schouler, Hus. & Wife, where a husband repeatedly threat-
§ 507 ; 1 Bishop, Mar. & Div. 5th ed. ened to strike and kill his wife. 60
§§ 748, 754. Iowa, 397.
8 Gholston V. Gholston, 31 Geo. 625; * Knight v. Knight, 31 Iowa, 451,
Pillar J7. Pillar, 22 Wis. 658; Edmonds' and cases s«pra ,• Prichard v. Prichard,
Appeal, 57 Penn. St. 232 ; Fulgham v. 3 Swab. & T. 523 ; Trowbridge v. Car-
State, 46 Ala. 143; Owen v. State, 7 lin, 12 La. Ann. 882.
Tex. App. 320; Gorman v. Sute, 42 ^ 2 Kent, Com. 181 ; People ?•. Win-
Tex. 221; 1 Bishop, § 754, and cases ters, 2 Parker (N. Y. Cr.), 10; 1 Bl.
72
CHAP. II.] PERSON OF THE SPOUSE. § 45
§ 45. Husband's Right of Gentle Restraint. — The right of
gentle restraint over the wife's person rests upon better author-
ity than that of chastisement. This right, however, depends
upon the proposition that the husband is dignior persona. And
its exercise is often to be justified m the courts on the same
grounds ; namely, that the husband must answer to others for
his wife's conduct. Blackstone says that in case of any gross
misbehavior the husband can restrain his wife of her liberty.
The later expression of Kent is that he may resort to " gentle
restraint.' ^ Strong instances for the exercise of this right oc-
cur where the wife has eloped with a libertine, and the hus-
band wishes to bring her home ; or where she purposes an
elopement, and he seeks to prevent it ; or, perhaps, where she
goes recklessly into lewd company.^ Kestraint may also be
justified where the wife becomes insane, threatens the husband
with danger, or wantonly destroys his property.'^
So, too, the husband, by virtue of his marital authority over
his own household, might be allowed, if not by physical force,
at least by moral coercion, to regulate her movements so as to
prevent her from going to places, associating with people, or en-
gaging in pursuits, disapproved by himself on rational grounds.
This doctrine has been asserted in England ; and Mr. Fraser
carries it to the extent of forbidding her relatives to visit her ;
" for," he observes, " though the wife may be very amiable,
her connections may not be so." * But this rule is to be laid
down with great caution, and it may be considered especially un-
popular in America. Mr. Justice Coleridge, in an English case,
observes that the husband's right must not be exercised un-
necessarily or with undue severity ; and that the moment the
wife, by her return to conjugal duties, makes the restraint of
her person unnecessary, such restraint becomes unlawful.'^
Com. 445 ; Richards v. Richards, 1 ^ 8 Mod. 22 ; 1 Stra. 477 ; In re Price,
Grant, 389. 2 Fost. & F. 263; State i;. Craton, 6
1 2 Kent, Com. 181 ; 1 Bl. Com. 445. Ire. 164. And see 1 Bishop, Mar. &
2 So strongly does the conmion law Div. § 756.
detest conjugal unfaithfulness, that tlie * 1 Fraser, Dom. Rel. 4-59. This ob-
husband who kills his wife or her para- servation was made by Lord Stowell
mour in the act of adultery is only guilty in Waring v. Waring, 2 Ilag. Con. 153 ;
of manslaughter. See Regina v. Kelly, 1 Eng Ec. 210.
2 Car. & K. 814. * In re Cochrane, 8 Dowl. P. C. 631.
73
§ 46 ' THE DOMESTIC RELATIONS. [PART II.
Our modern doctrine is that force, whether physical or
moral, systematically exerted to compel the submission of a
wife in such a manner, and to such a degree, and during such a
length of time, as to injure her health and threaten disease, is
legal cruelty.^
§ 46. Regulation of Household, Visitors, &c. — From the
common-law relation of liusband and wife it follows, as our
last section indicates, that the general regulation of a house-
hold is the privilege of the husband, who is its lawful head.
The wife in this respect is to be viewed as his representative
or executive officer, properly intrusted with domestic details,
and particularly^ with the supervision of female menials and
their work. Husbands are sometimes blameworthy in the
course of such regulation for pettiness, meanness, and iucon-
siderateness towards their wives. And yet households differ,
and legal cruelty cannot readily be predicated of such conduct
further than that, in divorce suits, misbehavior of this kind is
frequently alleged in aggravation of actual cruelty otherwise
practised, and so as to give body to the latter charge. It can-
not be called cruelty or a breach of marital duty justifying
legal interference, for a married householder, however large his
establishment, to take the settlement of the little bills upon
himself,^ or the hiring and discharge of the servants.
As to the question how far the wife is bound to observe the
husbands directions in entertainment, the choice of visitors,
the arrangement of the rooms, and so on, the English rule is
still strict, or, rather, permissive of the husband's sway. The
wife is expected to conform to her husband's habits and tastes,
even to his eccentricities, provided her health be not seriously
endangered by so doing. And though he should restrict the
calling list to a certain set agreeable to himself alone, or inter-
dict intercourse with her family, or prevent her from paying a
visit to his own relatives, all of which we may well presume to
be unkind and unreasonable, yet this alone is not sufficient
ground for divorce.^ Nor, as it has been held in this country,
1 Kelly V. Kelly, L. R. 2 P. & D. .31 ; 2 Evans v. Evans, 1 Hag. Con. 35,
Bailey v. Bailey, 97 Mass. 373. See 115.
Schouler, Hus. & Wife, §§ 507-510. ^ Neeld v. Neeld, 4 Hag. Ec. 263 ;
74
CHAP. II.] PERSON OF THE SPOUSE. § 48
would divorce be granted simply because he had forbade her
to attend a particular church of which she was a member.^
Modern American precedent, however, on all these points is
quite scanty. And whether the husband can allege miscon-
duct against his wife or obtain redress on his part, if she rebels
against oppressive discipline of this kind, is extremely doubt-
ful. Whims and caprices of the husband, submission to which
endangers the wife's health, need not be followed, and may
even be relieved against as legal cruelty ; ^ and perhaps the
former should be said of constraint upon religious worship as
the worshipper's conscience dictates ; for the husband's right
to manage his house and wife must doubtless be understood to
have rational limits.
§ 47. Custody of Children. — The custody of children be-
longed at common law to the father. Blackstone observes :
" A mother, as such, is entitled to no power, but only to rev-
erence and respect." ^ But by an English statute, passed in
1839, the court of chancery is permitted to interfere and award
the custody of children to such parent as may be deemed most
suitable. Its special object was to enable married women who
should be ill-treated by their husbands to assert their rights
without the fear of being separated from their offspring.^ In
this country the tendency of legislation is to place the wife
upon an equal footing with her husband in this respect, so that
husband and wife together shall have in their children a joint
interest and control, which the courts are to regard as distinct
only when the welfare of these tender beings makes judicial
intervention necessary.^
§ 48. Remedies of Spouses against each other for Breach of
Matrimonial Obligations. — As no legal process can safely be
enforced to compel husband and wife to live together, against
D'Aguilar v. D'Acruilar, 1 Hag. Ec. 3 i b1. Com. 453.
773; Waring v. Waring, 2 Hag. Con. * 2 & 3 Vict. o. 54; Warde v. Warde,
153 ; Shaw v. Sliaw. 17 Conn. 189 ; Ful- 2 Ph. 786.
ton V. Fulton, o6 Mo. 517. ^ See post, Parent and Child, c. 3,
^ Lawrence v. Lawrence, 3 Paige, where the subject is considered at
267. length, as more appropriate to that
2 Kelly V. Kelly, L. R. 2 P. & D. 31 ; branch of the family law.
1 Bishop, § 758.
75
§ 48 THE DOMESTIC RELATIONS. [PAET U.
the will of either, so the peace of society forbids that they
should sue one another for damages for breach of the marital
obligations. Here again is marriage sui generis, and not like
other contracts. But the failure of the one to perform recog-
nized duties may sometimes absolve the other from certain
corresponding obligations. Thus, if the wife leaves her home
without justifiable cause, the husband may refuse to support
her.^ If the husband is cruel, or makes his home unfit for a
chaste woman to live in (which is a species of cruelty), the wife
may leave and compel him to support her elsewhere.^ This is
well-recognized law. In general, however, such violation of
marital obligations is effectually punishable, not by enforcing
them as in the old English siiit for restitution of conjugal rights,
which is not recognized in the United States, but by putting an
end to the relation altogether.^ And it is in the modern pro-
ceedings for divorce that we now find the subject of marital
obligations most frequently discussed, with, however, a bias
towards the construction of the divorce statutes themselves.
Husband and wife may be indicted for assault and battery
upon each other.^ This is a means of redress not unfrequently
sought against cruel husbands, especially among those of low
surroundings, where drunkenness is common, and religion treats
divorce for cruelty with disfavor ; and a husband who beats his
wife inexcusably may be convicted of this offence.^ So, too,
the offending spouse may be bound to keep the peace. For un-
reasonable and improper checks upon her liberties, the wife
may have relief on habeas corpus. But the writ is not available
1 2 Kent, Com. 147 ; Manby V. Scott, to moderately chastise lias been so
1 Mod. 124; 1 Bl. Com. 443. reluctantly yielded, it is admitted that
2 Houliston V. Smyth, 3 Bing. 127. if the circumstances involve malice,
And see c. 3, as to wife's necessaries. cruelty, or the infliction of permanent
8 See 1 Bishop, Mar. & Div. § 771 ; injury upon the wife, the husband may
1 Fraser, Dom. Rel. 452; Adams v. properly be convicted of assault and
Adams, 100 Mass. 305; Briggs v. battery. State i;. Oliver, 70 N. C. 60.
Briggs, 20 Mich. 34; Schouler, Has. & But in this State trivial complaints are
Wife, §§ 72-77. not favored. And a sentence to ira-
* Bradley v. State, Walker, 156; prisonment for five years in an aggra-
State V. Mabrey, 64 N. C. 592 ; Wliipp vated case was lately considered a
V. State, 34 Ohio St. 87; Tucker v. "cruel and unusual" punishment.
State, 71 Ala. 342. State v. Driver, 78 N. C. 423.
s In North Carolina, where the right
76
CHAP. II.] PERSON OF THE SPOUSE. § 50
for the husband to secure the person of his wife, voluntarily
absenting herself from his house. ^
§ 49. The Spouse as a Criminal ; Private Wrongs and Public
Wrongs compared. — We shall find the doctrine of coverture
affecting the liability of a married woman for her fraud or
injury, so that her husband must respond to others in damages
for her.^ But here the private wrong and the public wrong
stand contrasted. The immunity of the wife does not extend
to criminal prosecutions. For, as Blackstone observes, the
union is only a civil union.^ Or, to come more to the point,
it would be cruel and unjust to punish one person for the
crime of another, or even to compel the two to bear the penalty
together ; while it would be impolitic, as well as unjust, to
allow any relation which human beings, morally responsible,
might sustain with one another, to absolve either from public
accountability. Here coverture as a theory contradicts itself
by leaving the wife answerable alone for her crimes, just as
a single woman. The utmost the law can do is to furnish a
presumption of innocence in her favor in cases where the co-
ercion of her husband may be reasonably inferred.
§ 50. Presumption of Wife's Coercion how far carried. — This
indulgence of presumed innocence, it is said, is carried so far as
to excuse the wife from punishment for theft, burglary, or other
civil offences " against the laws of society," when committed in
the presence or by the command of her husband ; but not so
as to exculpate the wife for moral offences. For mala proJiibita
she is not punished; for viala in se she is. Such a distinction
is variable and somewhat shadowy ; the line seems to be drawn
more wisely, if at all, between such heinous crimes as murder
and manslaughter, and the lighter offences.* And tlie better \
opinion is, decidedly, that at the most coercion is only a pre- ]!
sumption, which may be rebutted by evidence to the contrary.^ !i
The presumption, therefore, that in the less heinous crimes
1 Et parte Sandiland, 12 E. L. & Eq. 3 1 Bl. Com. 443.
463. See Adams v. Adams, 100 Mass. * 2 Kent, Com. 11th ed. 150; 4 Bl.
365, as to the old writ of supplicavit Com. 28, 29, and Christian's notes ; 1
formerly issued for protection of the Hawk. P. C. b. 1, ch. 1, § 9; 1 Russ.
wife against her husband. Crimes, 18-24.
2 See post, c. 4. * 2 Kent, Com. 11th ed. 150; State
77
§ 51 THE DOMESTIC RELATIONS. [PART II.
committed by the wife in her husband's presence, the wife acts
under the husband's coercion, may in any case be repelled by
suitable proof ; and when it is, the wife, as one acting sui juris,
must be held responsible for the wrong done by her in her
husband's company. This is the true rule. Husband and wife
may, therefore, both be indicted and convicted of a crime where
it appears that both were guilty of the offence and the wife
was not coerced.^ In most of the latest cases where the wife
is indicted, the presumption of coercion haS' been regarded as
something to be easily rebutted, especially in that numerous
class of cases which relates to the illegal sale of liquors, a busi-
ness in which married women frequently engage understand-
ingly.^ And where the crime is heinous, and the presence and
command of the husband do not concur, a jury may readily find
the wife independently guilty.^ A wife who committed larceny
by her husband's bare command, when he was not present,
has been held liable therefor ; and our present tendency is to
refuse exculpation to the wife unless the husband commanded
and was near enough besides to exert his marital influence upon
her participation in accomplishing the particular crime.*
§ 51. Offences against the Property of One Another. — Pub-
lic policy forbids that either spouse should molest the person
of the other with impunity.^ But as to the property of a
V. Parkerson, 1 Strobh. 169 ; 1 Riiss. Imsband in a robbery, throttled the vic-
Crhnos, 22; 2 Lew. C. C. 229; Uhl v. tim and told him to keep still, while lier
Commonwealth, 6 Gratt. 706; Wagener liusband and a confederate rifled his
V. Bill, 19 Barb. .S21 ; cases infra ; 1 pockets, a verdict of independent guilt
Grecnl. Ev. 10th ed. § 28. against her was sustained. As to keep-
1 Goldstein v. People, 82 N. Y. 2.31 ; ing a disorderly house, see 133 Mass.
Mulvey v. State, 43 Ala. 316; State v. 381. As to forgery, see 97 N. Y. 126.
Potter, 42 Vt. 495 ; People v. Wright, * Seller v. People, 77 N. Y. 411 ;
38 Mich. 744; State v. Camp, 41 N. J. State v. Camp. 41 N. J. L. 306; State
L. 306. V- Potter, 42 Vt. 495 ; Commonwealth
2 See State v. Cleaves, 59 Me. 298 ; v. Lewis, 1 Met. 151 ; Commonwealth
Commonwealth v. Tryon, 99 Mass. v. Fecney, 12 Allen, 5R0: Common-
442; Commonwealth v. Pratt, 126 wealth v. Munsey, 112 Mass. 287 ; Ed-
Mass. 462. wards v State, 27 Ark. 494. See
3 Presumption of coercion rebutted further, Schonler, Hus. & Wife, §§ 76-
in a murder case, where wife had con- 78 ; 13 R. I. 535, 537 ; 133 Mass. 680.
spired with her husband to commit ^ See, e.^;., as to remedies for assault
robbery. Miller v. State, 25 Wis. 384. and battery supra, § 48. Otherwise as
In People v. Wright, 38 Mich. "''44, to a spouse's libel, slander, etc. 16
where a wife, participating with her Q. B. D. 772.
78
CHAP. II.] PERSON OF THE SPOUSE. § 52
spouse our law pursues a distinction. Accordingly, it is well
established that the wife cannot be found guilty of stealing the
goods of her husband, inasmuch as she resides with him and
has possession of the goods by virtue of the marriage relation.^
And as to the husband, whose legal possession and control of
his wife's property during wedlock is far stronger, it is held
that, not even upon the ground that a certain building was his
wife's separate property, can he be convicted of arson for set- '
ting it on fire.^
§ 52. Mutual Disability to Contract, Sue, &c. — Husband and
wife cannot make gifts or sales to one another during coverture,
though the same parties might have done so before and in con-
templation of marriage. Nor can they in other respects con-
tract or enter into covenants with one another. Nor can one
sue the other.^ But, as we shall hereafter see, equity and
modern legislation introduce a different principle. This disa-
bility of the spouses to sue one another is not merely the tech-
nical one that, under the old procedure, husband and wife
must join, but is founded on the principle that husband and
wife are one.^ There is sound policy, moreover, in discourag-
ing the pair from making of their matrimonial bickerings a
cause of action for damages against one another. However it
may be at this day, therefore, as to actions of contract, or pro-
ceedings in equity, arising out of their distinct property rela-
tions, the wife has no cause of action in damages against her
husband for a pure tort committed upon her person during the
marriage relation, such as assault or false imprisonment. And
as the objection to such actions is not merely one of procedure,
the fact that she has since procured a divorce will not enable
her to bring such a suit.^
1 Queen r. Kenny, 2 Q. B. D. 307 ; ried women's acts in this country have
Lamphier v. State, 70 Ind. .317. changed the common law greatly as to
2 Snyder i\ People, 26 Mich. 106. the mutual right of suit. And see, as
Modern American statutes frequently to modern rules, c, 14, post, Transac-
change this last rule. See Schouler, tions between Husband and Wife.
Hus. & Wife, Appendix. And see lb. * Blackburn, J., in riiillips v. Bar-
§§ 78, 79. net, 1 Q. B. D. 436.
2 Lord Hardwicke, in Lannoy v. ^ Phillips v. Barnet, 1 Q. B. D. 4.36;
Duchess of Athol, 2 Atk. 448 ; 1 Bl. Abbott v. Abbott, 67 Me. 304,
Com. 442 ; 2 Kent, Com. 129. The mar-
79
§ 53 THE DOMESTIC RELATIONS. [PART U.
§ 53. Mutual Disqualification as Witnesses. — One of the
most important of the mutual disahilities of the marriage state
is the disqualification of husband and wife to testify as wit-
nesses in the courts for or against one another. Blackstone
places this prohibition on a technical ground, — unity of the
person ; for, he says, if they testify in behalf of one another,
they contradict the maxim, " Nemo propria causa testis esse
debet ; " and, if against one another, that other maxim, " Nemo
tenetur se ipswm accusare." ^ He also suggests interest as
another ground for the rule ; and this doubtless is a good one.
But a more solid reason than either is that of public policy.
" The happiness of the married state," says Mr. Greenleaf, " re-
quires that there should be the most unlimited confidence be-
tween husband and wife ; and this confidence the law secures,
by providing that it shall be kept forever inviolable ; that noth-
ing shall be extracted from the bosom of the wife which was
confided there by the husband." ^
So unyielding is this rule, that mutual consent will not
authorize the breach of it.^ Whether the suit be civil or
criminal, in law or at equity, it matters not. Form yields to
substance in procedure, for the sake of excluding such testi-
mony. And after coverture has terminated by death or di-
vorce, still the prohibition lasts as to all which took place
while the relation existed.^ The disability of the husband is
in this respect as great as that of the wife.^ The rule applies
1 1 Bl. Com. 443. v. Bowman, LS Pet. 223; 1 Greenl.
2 1 Greenl. Evid. § 254. See also 2 Evid. § mi. See also Terry v. Bel-
Kent, Com. 178-180, to the same effect, cher, 1 Bailey, 568; State i^. Jolly, 3
But apparently Cliapman, J., in Peas- Dev. & Bat. 110; Crose v. Rutledge, 81
lee V. McLoon, 16 Gray, 488, prefers to 111. 266 ; Wood v. Shurtleff, 46 Vt. 525 ;
consider that interest, more than policy, 89 N. C. 559; 78 Ala. 425; Maynard
determined the question at common v. Vinton, 59 Mich. 139; 1 Barb. 392.
law. I^ut see Dickerman v. Graves, 6 Cash.
3 1 Greenl. Evid. § 340, and cases 308.
cited; Lord Hardwicke, in Barker v. & See cases cited in 1 Greenl. Evid.
Dixie, Cas. temp. Hardw. 264 ; Davis v. § .334. And see Turner v. Cook, 36
Dinwoody, 4 T. R. 670, per Lord Ken- Ind. 129 ; Richards v. Burden, 31 Iowa,
yon; con^m, Pedley ;>. Wellesley, 3 Car. 305; Rea v. Tucker, 51 111. 110; Suc-
& P. 558 ; 2 Kent, Com. 179. cession of Wade, 21 La. Ann. 343. The
* Monroe v. Twistleton, cited in wife is not competent to prove an alibi
Averson v. Lord Kinnaird, 6 East, 192; for her husband in a criniinal prosecu-
Doker v. Hasler, Ry. & M. 198; Stein tion. Miller v. State, 45 Ala. 24.
80
CHAP. II.] PEESON OF THE SPOUSE. § 53
alike to evidence of declarations made by husband and wife
for or against one another, and to their testimony in person."^
Nor is a wife a competent attesting witness to a will wdiich
contains a devise to her husband ; ^ nor one claiming, as widow,
the right to administer, competent to establish her marriage.^ Nor
are the spouses competent witnesses for or against one another
in a suit for divorce on the ground of adultery, nor in proceed-
ings for bigamy against one of them> And it is said that the
law guards the marital confidence of silence as well as that of
communication }
This rule of exclusion applies only to persons occupying the
bona fide relation of husband and wife ; not, of course, to a mis-
tress, or parties in immoral cohabitation. But at the same
time the courts lean kindly towards ^jrma/aczc marriages, and
make no rigid investigation.^ The policy of the rule is evi-
dently to treat as privileged communications all that passes
between persons supposing themselves lawfully married, and
at all events not to prejudice the rights of the innocent party
to an invalid marriage ; but the rule has not always been car-
ried to such an extent. Some exceptions exist to the rule,
founded mainly on considerations of public policy.'^
There have been some important changes introduced into
the law of evidence in some parts of this country by statute ;
such as permitting interested persons to testify in their own
suits. Where the old doctrine prevails, the exclusion of the
1 1 Greenl. Evid. §341; 6 T. R. 81. So as to the wife of a freedman.
680; 7 T. R. 112; Kelly v. Small, 2 Hampton ?;. State, 45 Ala. 82. The rule
Esp. 716; Brown v. Wood, 121 Mass. of exclusion does not extend to a mis-
137 ; Schouler, Hus. & Wife, § 83. tress or the husband of one's paramour.
2 Sullivani'. Sullivan, 106 Mass. 474. Dennis v. Crittenden, 42 N. Y. 542;
The Massachusetts rule is contrary to Mann v. State, 44 Tex. 642; Hill v.
that of New York and Maine. See au- State, 41 Ga. 484 ; Rickerstriker v.
thorities cited in this case. State, 31 Ark. 207 ; State v. Brown, 28
3 Redgrave v. Redgrave, .38 Md. 93. La. Ann. 279. See furtlier, Schouler,
4 Marsh v. Marsh, 29 N. J. Eq. 396; Hus. & Wife, § 83.
Finn v. Finn, 19 N. Y. Supr. 3.39; Peo- ' 2 Russ. on Crimes, 605, 606; 1 Bl.
pie V. Houghton, 41 N. Y. Supr. 501. Com. 443; 1 Greenl. Evid. § 343. and
But see State v. Bennett, 31 Iowa, 24. cases cited in note ; Schouler, Hus. &
5 Goodrum v. State, 60 Ga. 509. Wife, § 84, and cases cited. One spouse
6 1 Greenl. Evid. § 3.39, and cases may testify as to a criminal assault by
cited; 2 Stark. Evid. 400; Bull. N. P. the other. 63 Md. 123; 16 Q. B. D.
287; Campbell v. Twemlow, 1 Price, 772.
6
81
§ 53 THE DOMESTIC RELATIONS. [PART II.
husband, by reason of direct interest, operates to exclude his
wife likewise.^ So the husband cannot be a witness in a con-
troversy respecting his wife's separate estate, though in respect
to other parties concerned he might be competent ; '^ and this,
too, is changed by legislation. The English Evidence Act of
1853, 16 & 17 Vict. c. 83 (which has been substantially enacted
in some parts of this country), renders husbands and their
wives competent and compellable witnesses for each other, ex-
cept in criminal cases and in cases of adultery ; but neither
shall be compelled to disclose communications made during
marriage.^ On the whole, the prevailing tendency of late years
in both England and America is to regard domestic confidence
or the bias of a spouse as of less consequence compared with
the public convenience of extending the means of ascertaining
the truth in all causes ; such facilities being increased, it is be-
lieved, by hearing whatever each one has to say, and then
making due allowance for circumstances affecting each one's
credibility. By the modern enlargement of the wife's separate
contract and property relations, moreover, the spouses are pre-
sented, not so constantly as partakers of one another's confi-
dence, but rather as persons having adverse interests to maintain,
or else as principal and agent.^ Yet there is still reluctance
* 1 Greenl. Evid. § 341 ; Ex parte or where one transacts as tbe agent of
Jones, 1 P. Wms. 610 ; and cf. Stat, the other. 55 Mich. 3tJ2 ; 84 Mo. 412.
6 Geo. IV. c. 1(3, § 37. ^ See Ed. note to 10th ed. '1 Kent,
2 1 Burr. 424, per Lord Mansfield; Com. 181; Stapleton v. Croft, 10 E. L.
12 Vin. Ahr. Evidence B. And see & Eq. 455; Barbat v. Allen, ib. 596;
note to 1 Greenl. Evid. § 341, with au- Alcock v. Alcock, 12 ib. 354; State r.
thorities cited. In various States a Wilson, 30 N. J. 77; Farrell v. Led-
spoiise, under statute, may be a compe- well, 21 Wis. 182; Peaslee v. McLoon,
tent witness to a greater or less extent 16 Gray, 488; Metier v. Metier, 3 C. E.
with reference to wife's separate prop- Green, 270. See Schouler, Hus & Wife,
erty. Musser v. Gardner, 66 Penn. St. § 85 and n., where the modern cases are
242 ; Northern Line Packet Co. v. collated.
Shearer, 61 111. 203 ; Porter v. Allen, 54 * A statute providing for the admis-
Ga. 623; Wing r. Goodman, 75 III. 150. sion of interested parties as witnesses
As where the husband dealt with the does not per se remove the disqualifi-
wife's separate property as her agent, cation of husband and wife. Lucas v.
Chesley v. Chesley, 54 Mo. 347; Menk Brooks, 18 Wall. 436; Gibson v. Com-
V. Steinfort, 39 Wis. 370. But cf. Robi- monwealth, 87 Penn. St. 253; Schultz
son V. Robison, 44 Ala 227. Statutes v. State, 32 Ohio St. 276; Gee v. Scott,
allow of reciprocal testimony on mat- 48 Tex. 510.
ters of their mutual property concerns, If one marital party testifies for or
82
CHAP, in.] wife's debts and contracts.
54
felt to disturbing by legislation the harmony of the marriage
state so far as to expose its secret confidences.^
CHAPTEE III.
EFFECT OF COVERTURE UPON WIFE S DEBTS AND CONTRACTS.
§ 54. General Inequalities of Coverture at Common Law. —
The property rights of married women are restrained at the
common law. The husband yields to his wife no participation
whatever in his own property, whether acquired before or dur-
ing the continuance of the marriage relation, except a certain
right of inheritance to his goods and chattels, of which he can
generally deprive her by his will and testament, and also dower
in his real estate, which is her only substantial privilege. In
return for this, she parts with all control, for the time being,
over her own property, whensoever and howsoever obtained, by
against tlie other, under statute, cross-
examination must be permitted, even if
it compels tlie testimony to tlie oppo-
site direction. Bailentine v. Wliite, 77
Penn. St. 20 ; Steinburg v. Meany, 53
Cal. 425.
A wife cannot testify against her
husband upon liis trial for tlieft of her
property. Overton v. State, 4;3 Tex.
610.
Concerning testimony as to conver-
Scations held by married parties when
they were alone, the rule of the com-
mon law, encouraging their confidence,
is presumed to be unchanged unless
the statute is positive to that effect.
Raynes v. Bennett, 114 Mass. 424;
Westerman v. Westerman, 25 Ohio St.
500 ; Brown v. Wood, 121 Mass. 137 ;
Wood V. Chetwood, 27 N. J. Eq. 311;
Stanford v. Murphy, 63 Ga. 410.
^ " Communications between hus-
band and wife are not excluded on the
ground of their common interest, or for
the protection of those against whom
they may testify, but because public
policy requires that they shall not be al-
lowed to betray the trust and confidence
which are essential to the happiness of
the married state. The reason for the
exclusion ceases when tlie husband and
wife conclusively show, by making the
communication in the known presence
of a third person competent to be a
witness, that it is not of a confidential
nature, and that its disclosure cannot
violate any trust or confidence." Up-
son, J., in Sessions v. Trevitt, 39 Ohio
St. 269, 208. And see Bobb's Appeal,
98 Penn. St. 501 ; 43 Ark. 307. Under
a New York statute of 1876, one spouse
may be examined in a criminal trial
as a witness on behalf of the other, but
cannot be compelled to testify ; and if
she is not called by the defendant, that
fact may be commented on to the jury.
92 N. Y. 554.
83
§ 54 THE DOMESTIC RELATIONS. [PART II.
gift, grant, purchase, devise, or inheritance, gives him outright
her personal property in possession, and allows him to appro-
priate to himself those outstanding rights which are known as
her choses in action, or all the rest of her personal property ; parts
with the usufruct of her real estate, creating likewise a possible
encumbrance upon it in the shape of tenancy by the curtesy ;
and finally takes, if she survives him, only her real estate, such
of her personal property as remains undisposed of and unappro-
priated, with a few articles of wearing apparel and trinkets
called paraphernalia. She cannot restrain his rights by will.
She is not allowed to administer on his personal estate in
preference to his own kindred, though the whole of it were
once hers; while he can administer on her estate for his own
benefit, and exclude her kindred altogether, even from partici-
pation in the assets. Thus unequal are the property rights of
husband and wife by the strict rule of coverture. We speak
not here of recent statutory benefits conferred upon the wife ;
nor of that relief which equity affords in permitting property
to be held to the wife's separate use, and giving her a provision
from her choses in action, when the husband seeks its aid in
appropriating them to his own use ; but of what is to be prop-
erly termed the common law of husband and wife.^
Some recompense is afforded to the wife for the loss of her
fortune, in the rule that her husband shall pay her debts con-
tracted while a. feme sole ; that is, unmarried. And while cover-
ture lasts he is liable for all just debts incurred in her support.
He has even been held guilty of murder in the second degree
when he has suffered her to die for want of proper supplies.^
The wife cannot make a contract so as to bind herself ; but in
this, and other cases of express or implied authority, she can
bind her husband, and so secure a maintenance. That which
cannot be enforced by the wife as a matter of obligation is
often attained at the common law in some indirect way.^ Nor
can the wife sue and be sued in her own right.
So, too, the husband is liable civilly for the frauds and in-
1 See 1 Bl. Com. 442-445, and notes, 2 Reg. v. Plummer, 1 Car. & K. 600.
by Christian, Ilargrave, and otliers; 2 ^ See 1 Bl. Com. 442; 2 Kent, Com.
Kent, Com. 130-143 ; and chapters infra. 143-149.
84
CHAP. III.] wife's debts AND CONTRACTS. § 66
juries of the wife, committed during coverture ; being sued
either alone or jointly with her, in accordance with the legal
presumption of coercion in such cases. And he must respond
in damages, whether she brought him a fortune by marriage
or not. But as we have seen, this rule does not apply to
crimes, except that the law shows the wife a certain indul-
gence where a similar presumption can be alleged on her
behalf. On the other hand, the husband takes the benefit of
such injuries as she may suffer, by suing with her and appro-
priating the compensation by way of damages to himself.^
§ 55. Exception where Wife is treated as Feme Sole. — We
may add that the wife is relieved at the common law of the
disabilities of coverture, and placed upon the footing of a feme
sole, with the privilege to contract, sue and be sued, on her own
behalf, in one instance, namely, where her husband has abjured
the realm or is banished ; for he is then said to be dead at the
law.2 And the necessity of the case furnishes the strongest
argument for this exception. Another exception early pre-
vailed in certain parts of England by local custom, — as that
of London, — where the wife might carry on a trade, and sue
and be sued in reference thereto as though sing;le.^
§ 56. Husband's Liability for Wife's Antenuptial Debts. —
One of the immediate effects of marriage at the common law is
that the husband at once becomes bound to pay all outstand-
ing debts of his wife, — her debts duiji sola, as they are called, —
of whatever amount. This is a sort of recompense he makes
for taking her property into his hands. But whether she
brings him a fortune or not, his liability is not affected. She
may owe large sums at the time of marriage and have nothing
to offset them. She may have studiously concealed the exist-
ence of the debts from her affianced husband. But none of
these considerations can avail to shield him. "When married,
1 1 Bl. Com. 443; 2 Kent, Com. 149, common law in this chapter is a state-
150. ment of doctrines which at the present
'•^ 1 Bl. Com. 443 ; 2 Kent, Com. 154. day are found to be controlled and
See Separation, post, c. 17. changed, to a great extent, by modern
3 1 Selw. N. P. 298; Bing. Inf. 261, equity rules and legislation. See cs.
262. The modern practitioner is here 7-12, post.
cautioned that the statement of the
85
§ 56 THE DOMESTIC RELATIONS. [PART II.
she is married with her debts as well as her fortunes. As
Blackstone observes, her husband must be considered to have
" adopted her and her circumstances together." ^ This rule is,
moreover, applied without discrimination as to individuals. An
infant who marries is bound equally with an adult husband.^
A second husband is liable for the debts of his wife outstanding
at the close of her widowhood, whether contracted prior to the
first marriage, or while living separate from her first husband,
and upon a separate maintenance, or after the termination of
her first coverture and subsequent to the second.^
On the other hand, the husband remains liable for the debts
of his wife dum sola only so long as coverture lasts. As his
liability originated in the marriage, so it ceases with it. Hence,
if the obligation be not enforced in the lifetime of the wife, the
surviving husband retains her fortune (if any) in his hands,
and cannot be charged further with her debts either at law or
in equity.* The wife's choses in action still unreduced to pos-
session at the time of her death may, however, be reached by
her creditors where he has received them as her administrator,
though only to the actual amount of such assets ; so that this
would afford them but partial relief.^ Nor can the husband's
estate after his death be made liable for the wife's debts con-
tracted while sole.^ Not even the parol promise made by the
husband during coverture to pay his wife's debts dum sola
will create an additional liability for them on his part.' The
injustice of the rule in certain cases is obvious.^
On general principles the husband is bound for the debt of
his infant wife while sole just as much as though she were
an adult, though only to the same extent as she would have
been bound. Hence, where the demand is for necessaries fur-
1 1 Bl. Com. 443; 3 Mod. 186; 2 * 2 Kent, Com. 144. See Ch. Ca.
Kent, Com. 143-146 ; Macq. Hus. & 295, cited § 59, post.
Wife, 39-41 ; Heard v. Stamford, 3 P. & Heard v. Stamford, 3 P. Wms.
Wms. 409; Cas. temp. Talb. 17-3. 409; Cas. temp. Talb. 173; Morrow v.
2 Roach V. Quick, 9 Wend. 238; Whitesides, 10 B. Monr. 411; Day v.
Butler V. Breck, 7 Met. 164. Messick, 1 Houst. 328.
8 1 T. R. 5; 7 T. R. .348; Prescott 6 i Camp. 189; Curtton v. Moore, 2
V. Fisher, 22 111. 390; Angel v. Felton, Jones, Eq. 204.
8 Jolms. 149. ^ Cole v. Shurtleff, 41 Vt. 311.
8 See Schouler, Hus & Wife, § 92.
86
CHAP, III.] wife's debts AND CONTRACTS. § 57
nished her while an infant, the husband, after marriage, be-
comes bound to pay it, since she would have been liable if she
had not married. And the infancy of the lawful husband him-
self cannot be pleaded against this obligation.^
If the wife survives her husband, she becomes liable once
more on her debts while sole. And this, too, though the
means for extinguishing them may have already been squan-
dered by her husband or placed beyond her reach.^ Here is a
great hardship. Coverture, therefore seems to operate here as
a temporary disability, and not so as utterly to merge the wife's
identity. The husband becomes liable by marriage, not as the
debtor, but as the husband ; the remedy being suspended, or
rather shifted, during coverture.
§ 57. Wife's Antenuptial Debts ; Subject continued. — The
liability of the husband for his wife's debts while sole is limited
strictly to legal demands ; that is, to such as she was bound to
pay at the time of her marriage.^ And if a demand would not
be enforceable against her remaining sole, neither is it enforce-
able against her husband. But the promise or part-payment
of the wife cannot take a debt out of the statute of limitations
as against her husband, nor can the promise or part-payment
of the husband as against his wife. Nor can their admissions
charge one another.'* Their rights in this respect are separately
regarded.
All actions for the wife's debts while sole must be brought
against husband and wife jointly, and not against either sepa-
rately ; and judgment obtained by disregarding this rule will
be reversed on error.^ The object is to retain the remedy in
hand so that execution may be taken out against the proper party
1 Cole V. Seeley, 25 Vt. 220 ; Ander- Leseur, 18 Ala. G06 ; Farrar v. Bessey,
son V. Smith, .33 Md. 465; Bonney v. 24 Vt. 89; Parker v. Steed, 1 Lea. 206.
Reardin, 6 Basil, 34. But see Lord Tenterden, in Humphreys
2 Woodman v. Chapman, 1 Camp. v. Royce, 1 Mood. & Kob. 140, as to
N. P. 189, per Lord EUenborough. admissions of the wife allowable in
^ Cowley V. Robertson, 3 Camp, evidence after her death.
438; Caldwell v. Drake, 4 J. J. Marsh. & 1 Keb. 281 ; AUeyn, 72 ; Angel v.
246. Felton, 8 Johns. 149; 7 T. R. 348;
* Ross V. Winners, 1 Halst. 360; Gage v. Reed, 15 .Johns. 403; Gray v.
Sheppard v. Starke, 3 Munf 29 ; Brown Thacker, 4 Ala. 136 ; Plainer v. Patch-
V. Lasselle, 6 Blackf. 147 ; Moore v. in, 19 Wis. 333.
87
§ 58 THE DOMESTIC RELATIONS. [PAET II.
according to circumstances ; for, if the husband should die
pending the suit, the wife, on her survivorship, would become
liable.^ The rule as laid down in England concerning the
wife's personal liability on her debts clum sola is that coverture
does not wholly relieve her from the consequences of judgment
for the time being ; for that both may be taken on execution ;
and when the wife is taken, she shall not be discharged unless
it appear that she has no separate property out of which the
demand can be satisfied.^ This rule does not seem to have
been recognized with such strictness in this country.^ But
where the wife after marriage pays a portion of her debt, con-
tracted while sole, from funds derived from her separate prop-
erty, it is said that the husband will be bound by the act,
unless he disaffirms it within a reasonable time."^
So far as rights of third parties are concerned, the liability of
the husband for his wife's debts dum sola cannot be affected by
any antenuptial contract between the two ; ^ nor of course by
their agreement during coverture. The special contract of a
husband with the creditor, relating to his wife's debt dum sola,
furnishes a different cause of action to the creditor from that
which arises out of the debt dam sola taken by itself.^
§ 58. "Wife's General Disability to Contract. — In respect to
her disability to contract, the wife may be considered, as Mr.
Bingham has remarked, worse off at the common law than
infants ; for the contracts of an infant are for the most part
voidable only, while those of married women are, with few ex-
ceptions, absolutely void. But the disabilities incident to these
two conditions rest upon different grounds ; for the disabilities
attached to infancy are designed as a protection for the inex-
1 As to judgment and scire facias, effect of husband's bankruptcy upon
■where the woman dies or marries after- tlie wife's debts dum sola, see Scliouler,
wards, &c., see Schouler, IIus. & Wife, IIus. & Wife, § 96.
§ 96. 5 Harrison v. Trader, 27 Ark. 288.
2 Tidd, Pract. 9th ed. 1026 ; Sparkes ^ Wilson i'. Wilson, 30 Ohio St. 365.
V. Bell, 8 B. & C. 1 ; Newton v. Roe, 7 The common law as to the wife's
Man. & Gr. 329 ; Evans v. Chester, 2 M. antenuptial debts is changed consider-
& W. 847. ably by our modern legislation. See
8 Mallory v. Vanderheyden, 3 Barb, post, cs. 11, 12 ; Williams v. Mercier,
Ch. 9 ; 8. c. 1 Comst. 453. 9 Q. B. D. 337.
* Hall V. Eaton, 12 Vt. 610. As to
CHAP. III.] wife's debts AND CONTRACTS. § 58
perienced against the fraudulent, while those incident to cover-
ture are the simple consequence of that sole or paramount au-
thority which the law vests in the husband. ^ Common-sense
teaches that married women have sufficient discretion to act
for themselves, and stand on a different footing from young
children ; this the English law fully recognizes, irrespective of
equity rules, by empowering all women to contract up to the
very moment of their marriage, and from the time when cover-
ture ceases. At most it could only be said that a woman,
while living in the married state, was peculiarly subject to in-
fluence from the other sex, which might be exerted to her
disadvantage.
The husband may make in his own right such contracts as
he pleases, as well during coverture as before. He is never
presumed to act under the wife's influence.- But the wife by
coverture becomes disqualified and legally irresponsible in this
respect, except in the single instance where her husband is
civiliter mortuus, as we have already stated;-^ and in certain
localities where the separate trade custom applied.'* But other-
wise her incapacity at the common law is total.
To illustrate the wife's disability. She cannot earn money
for herself.^ She cannot, jointly with her husband or alone,
sign or indorse a promissory note, so as to bind herself ; ^ nor
execute a bond or other instrument under seal ; ' nor purchase
on her own credit ; nor agree to keep a money deposit pay-
able on demand ; nor be surety for her husband or another ; ^
nor bind herself by a recognizance ; ^ nor otherwise make a
1 See Bing. Inf. & Gov. 181, 182, Tracy ?-. Keith, 11 Allen, 214 ; 58 Vt.
Am. ed.; 2 Kent, Com. 150; post, In- 172; 60 N. H. 189.
fancy. Whether signing as surety or accom-
^ City Council v. Van Roven, 2 Mc- modation maker or promisor, she is not
Cord, 465. liable at law. 5.3 Wis. 101.
8 Supra, § 55. "^ Whitworth v. Carter, 43 Miss. 61 ;
< lb. Huntley v. Whitner, 77 N. C. 392. Not
5 Offley V. Clay, 2 Man. & Gr. 172 ; even a replevin bond. 84 Ind. 154.
c. 5, post. 8 Swing V. Woodruff, 41 N. J. L.
6 Mason v. Morgan, 2 Ad. & El. 30 ; 469 ; Gosman v. Cruger, 69 N. Y. 87 ;
Snider i-.Ridgeway, 49 111.522; O'Daily Lutheri;. Cote, 61 N. H. 129; 60 N. H.
V. Morris, 31 Ind. Ill; DoUner r. Snow, 189.
16 Fla. 86; Robertson v. Wilburn, 1 » Eberwine v. State, 70 Ind. 266-
Lea, 6.33; Brown v. Orr, 29 Cal. 120; See 17 Vroom, 94.
89
§ 59 THE DOMESTIC RELATIONS. [PART U.
valid contract.^ She is permitted, as we shall hereafter see, to
pass her real estate by joining in a deed with her husband ;
but when she does . so she is not bound by her covenants, nor
was her separate conveyance (except by some matter of record)
of any effect whatsoever.^ Her covenant in a mortgage of her
husband's property,^ or title bond, or executory contract to con-
vey land,* is equally ineffectual, A sheriff's sale of her land
upon her judgment note, given as security for her husband,
may be set aside as void.^ In all these cases the wife is con-
sidered as under the husband's dominion, and unable to act for
herself.^ On the same principle it is held that a married
woman cannot bind herself by her contract to convey estate
which is devised to her in trust for saleJ The executory and
unacknowledged contract of a married woman, being void as a
contract, cannot be supported as against her on the ground of
estoppel.^
§ 59. Wife's Disability to Contract extending beyond Cover-
ture. — So far is this doctrine of the wife's contract disability
carried, that the agreement of a widow, after her husbands
death, to pay a debt which she had contracted during cover-
ture, and which consequently was not binding upon herself,
but, if at all, upon her husband, has been treated as void, on
1 Avery v. Griffin, L. K. 6 Eq. 606 ; * Stidham v. Matthews, 29 Ark. 650 ;
Tobey v. Smith, 15 Gray, 5-35 ; Gould- Oglesby Coal Co. v. Pasco, 79 III. 164.
ing V. Davidson, 28 Barb. 438 ; Lee v. ^ Doyle v. Kelly, 75 III. 574.
Lanahan, 58 Me. 478. But as to sepa- 6 Marshall v. Rutton, 8 T. R. 545;
rate estate and modern legislation, see 11 East, 301; 2 B. & P. 226; 3 B. &
post, cs. 10, 11. Her judgment bond is C. 291 ; Jackson v. Vanderheyden, 17
void. Sclilosser's Appeal, 58 Penn. St. Johns. 167 ; Benjamin v. Benjamin, 15
493. Likewise her warrant of attorney Conn. 347 ; Ayer v. Warren, 47 Me.
to confess judgment. Swing ;». Wood- 217; Young v. Paul, 2 Stockt. 401;
ruff, 41 N. J. L. 469; Shallcross v. Stillwell i\ Adams, 29 Ark. 846; Stock-
Smith, 81 Penn. St 32. ton v. Farley, 10 W. Va. 171 ; Savage
2 2 Bl. Com. 293, 351, 364, and notes v. Davis, 18 Wis. 608. Alit<;r, as to mod-
by Chitty and others ; Robinson v. Rob- ern legislation, &c., cs. 10, 11, post.
inson, 11 Bush, 174; Ferguson v. Reed, ^ Avery v. Griffin, L. R. 6 Eq. 606.
45 Tex. 574; Botsford v. Wilson, 75 » Wood v. Terry, 30 Ark. 385; Og-
111. 133; 2 Kent, Com. 150-154; lb. lesby Coal Co. y. Pasco, 79 111. 164. But
167, 168. See post, c. 6. Rule ap- cf. Norton v. Nichols, 35 Mich. 148.
plied to a land patent signed by hus- Whether the rule that a wife is not
band and wife. Shartzer v. Love, 49 subject to estoppel applies to her de-
Cal. 93. liberate frauds, see c. 4 ; 37 La. Ann,
8 liitchell V. Mudgett, 37 Mich. 81. 324,
90
CHAP. III.] wife's debts AND CONTRACTS. § 60
the ground that the promise was without consideration and
only morally binding.^ And so is it with the wife's promissory
note for her husband's debt and her renewal note, which, when
a widow, she promises to pay or acknowledges.^ As a rule, of
course, the widow cannot be compelled to make good an en-
gagement or fulfil a contract which she entered into while
under the disability of coverture.^
Lord Nottingham, in a case mentioned in the old reports,
once refused to absolve a husband, after his wife's death, from
payment for goods which she had purchased prior to the mar-
riage, but never paid for, there being proof that he had actually
received the goods, and the debt being antenuptial. His lord-
ship declared with earnestness that he would change the law on
that point.* But in this case it appears that the goods did not
actually come to the husband's hands until after the wife's
death. And the authority of this decision has since been
greatly impaired.^ In equity the creditors of the first husband
may, where his wife was administratrix, follow the assets in
the hands of a second husband, although the wife be dead ; and
at law during her life.^
The contract of a married woman, being void, is likewise un-
enforceable against her after divorce, notwithstanding her sub-
sequent promise, when once more sui juris. ; for such promise
is without consideration.'^ But after the death of her spouse,
or her divorce from him, her promise, founded on a new consid-
eration, may be enforced against her.
§ 60. Wife binds Husband as Agent. — But although the
wife, as such, has no power to make a contract, she is allowed
at the common law to bind her husband in certain cases as
1 Meyer v. Haworth, 8 Ad. & El. 2 Hubbard v. Bugbee, 58 Vt. 172;
467; Waul v. Kirkman, 25 Miss. 609; Candy v. Coppook, 85 Ind. 594. Cf. 55
Lennox v. Eldred, 1 Tliomp. & C. 140. Vt. 506, as to lier separate property.
But in anotlier case it was held a ^ Ross v. Singleton, 1 Del. Ch. 149.
sufficient consideration to support a •• Cha. Ca. 295.
widow's promissory note, that it had ^ Ih. ; 1 Eq. Cas. Abr. t)0.
been given by her, out of respect for ^ Cha. Ca. 80; IVern. 309; 2 Vern.
her late husband's memory, to secure a 61, 118; 1 Eq. Cas. Abr. 60, 61 ; Cro.
debt due by him. 1 Cr. & J. 231 ; Tyr. Car. 603 ; 1 Roll. Abr, 35. See Ma-
84. See also Nelson v. Searle, 3 Jur. gruder r. Darnall, 6 Gill, 269.
290. ' Putnam v. Tennyson, 50 Ind. 456.
91
§ 61 THE DOMESTIC RELATIONS. [PART II.
his agent. Her authority may be general or special, express
or implied. Blackstone says that the power of the wife to act
as attorney for her husband implies no separation from, but is
rather a representation of, her lord.^ Whenever the husband
expressly empowers his wife to make a contract for him, he
will be bound as in the case of any other principal. And he
may bind himself in like manner for any unauthorized contract
proceeding from his wife as agent, by subsequent conduct on
his part amounting to ratification. But greater difficulty arises
in determining his liability upon contracts where the authority
is not express but only implied. How far does the law go in
presuming against the husband, and what are the proper limits
of an imjjlied authority in the wife to bind him by her con-
tracts ? This is an important inquiry, which we shall presently
consider.
But let us premise, as a suitable conclusion from the pre-
ceding sections, that the husband may be bound in one of two
ways, either upon his own contract or upon that made by the
wife as his agent ; and hence he may be held liable because
the debt or obligation was his own, or because his wife repre-
sented him. The natural effect of his joining with her in
executing a contract or instrument would be to render it his
individual obligation, since he is svi juris ; ^ while if she exe-
cuted alone and without a suitable agency on his behalf, the
obligation would be altogether void.
§ 61. "Wife's Necessaries; Foundation of Husband's Obliga-
tion. — On the important principle of the wife's agency rests
the liability of the husband, at common law, in contracts made
by the wife for necessaries. It is a clear obligation which rests
upon every husband to support his wife ; that is, to supply her
with necessaries suitable to her situation and his own circum-
stances and condition in life. Notwithstanding a man married
unwillingly, — as, for instance, to avoid a prosecution for seduc-
tion or bastardy, — he is bound to support her.^ But though
this obligation appears to rest on the foundation of natural jus-
tice, the common law assigns, as the true legal reason, that she
1 1 Bl. Com. 442 ; 2 Man. & Gr. 172 ; 2 Bresel v. Jordan, 104 Mass. 497.
Mizen v. Pick, 3 M. & W. 481. » state i'. Ransell, 41 Conn. 433.
92
CHAP. III.] wife's debts AND CONTRACTS. § 61
may not become a burden to the community. So long as that
calamity is averted, the wife has no direct claim upon her hus-
band under any circumstances whatever ; for even in the case
of positive starvation she can only come upon the parish for
relief ; in which case the parish authorities will insist that the
husband shall provide for her to the extent of sustaining life.^
If a husband fail in this respect, so that his wife becomes
chargeable to any parish, the statute 4 Geo. IV. c. 83, § 3, says
that " he shall be deemed an idle and disorderly person, and
shall be punishable with imprisonment and hard labor." ^ And
this obligation extends to the whole family, w4th such modifi-
cations as will be more properly noticed in treating of parent
and child. If a man marry a widow he is not bound to main-
tain her children ; unless he holds them out to the world as
part of his own family.^ But by the statute 4 & 5 Will. IV.
c. 76, § 57, the husband is required to maintain, as part of his
family, any child or children, till the age of sixteen, legitimate
or illegitimate, that his wife may have at the time of entering
into the contract.*
To enforce these marital obligations the law takes a circui-
tous course ; and the wife may secure herself from want against
a cruel and miserly husband, of ample means to support her,
by pledging his credit and making such purchases as are need-
ful, on the strength of an implied authority for that purpose.
Here, all other things being equal, it is presumed that she
was her husband's agent; and no direct permission need be
shown. Indeed, wherever the facts are clear that those articles
were actually needed, and that the husband failed to supply
them, this presumption is carried so far as to control even the
express orders of the husband himself. The articles for which a
wife is allowed to pledge her husband's credit as his presumed
agent are designated at common law as necessaries.
The wife's necessaries are such articles as the law deems
essential to her health and comfort ; chiefly food, drink, lodg-
1 Rex V. Flintan, 1 B. & Ad. 227 ; 7 * 4 T. R. 118; Cooper r. Martin, 4
Ad. & El. 819. East, 76 ; 3 Esp. N. P. 1 ; Hall v. Weir,
2 See Maephers. Inf. 42, 43. 1 Allen, 261. See post, Parent & Child,
3 Attridge v. Billings, 57 111. 489. § 237.
93
§ 61 THE DOMESTIC RELATIONS. [PAET II.
ing, fuel, washing, clothing, and medical attendance. They
are to be determined, both in kind and amount, by the means
and social position of the married pair, and must therefore
vary greatly among different grades and at different stages of
society.^ Thus a large milliner's bill might not be deemed
necessaries for the wife of a laborer, while a wealthy merchant
would be bound to pay it. So, too, necessaries to-day are not
what they were fifty years ago. Nor is the ordinary test to be
found in the real situation and means of the married parties
(for this a tradesman cannot be expected to investigate), but in
their apparent situation, the style they assume, and the estab-
lishment they maintain before the world ; which every husband
is supposed to regulate with sufficient prudence.^ Articles,
too, may be of a kind which the law pronounces necessaries,
and yet a wife may be so well supplied as not to need the par-
ticular articles in question, — a distinction of some consequence.
The decisions in the books, relating to necessaries, are therefore
somewhat confusing, as might be expected ; the more so since
the dividing line between law and fact, in such cases, is not
marked with distinctness. Sometimes the court decides whether
articles are necessary, sometimes a jury. The ordinary rule is
that the court shall decide whether certain articles are to be
classed as necessaries ; while the jury may determine the ques-
tion of amount, and apply this classification to the facts ; ^ but
this rule, though seemingly precise, is found difficult in its
practical application.^
1 2 Bright, Hns. & Wife, 7, 8 ; Sel. sonable expenses during illness. Har-
N. P. 260; 6 Car. & P. 419; Cro. Jac. ris v. Lee, 1 P. Wms. 438; Mayhew v.
257, 258; n. to 2 Kent, Com. 10th ed. Thayer, 8 Gray, 172; Cothran v. Lee,
146; Ih. l.",8, 139; 1 Bl. Com. 442. 24 Ala. 880; Webber i: Spannhake, 2
2 Waithman v. Wakefield, 1 Camp. Redf. (N. Y.) 258. Furniture of a
120. house for a wife to whom tlie court had
3 Renaux v. Teakle, 20 E. L. & Eq. decreed .£380 a year as alimony. Hunt
.345; 1 Pars. Contr. 241 ; Hall v. Weir, v. De Blaquiere, 5 Bing. 550. Silver
1 Allen, 261 ; Parke v. Kleeber, 37 fringes to a petticoat and side saddle
Penn. St. 251 ; Raynes v. Bennett, 114 (value £94) furnished to the wife of a
Mass. 424 ; PJiillipson ?•. Hayter, L. R. serjeant-at-law. Skin. 349. Watches
6 C. P. 38. and jewelry such as befits the style of
* Among the cases we find the fol- dress wliich the husband sanctions,
lowing articles classed as necessaries especially if not wholly ornamental,
for the wife : Board and lodging. Med- Paynes i\ Bennett, 114 Mass. 424.
icines, medical attendance, and rea- Reasonable legal expenses incurred by
94
CHAP. III.] wife's debts AND CONTRACTS.
§62
§ 62. Wife's Necessaries ; Living together or separate. — The
husband's liability for necessaries may arise in two distinct
a wife who had been deserted by her
husband, preliminary and incidental to
a suit for restitution of iier conjugal
rights, and in obtaining professional
advice as to the proper method of deal-
ing with tradesmen who were pressing
their bills. Wilson v. Ford, L. R. 3
Ex. 63. Reasonable legal expenses in
defence of a prosecution instituted
against a wife by her husband ( VVarner
V. Heiden, 28 Wis. 517), and even, in a
just cause, for jir^secuting liim. Shep-
herd I'. Mackoul, 3 Camp. 326 ; Morris
I'. Palmer, 39 N. H. 123. A horse
worth $45 for the invalid wife of a
miller earning $30 per month, in order
that she might take exercise as advised
by a physician ; the question of suit-
ableness, however, being left to the
jury. Cornelia v. Ellis, 11 111. 584.
The cost of divorce proceedings, in-
cluding fees of a proctor, where the
wife had reasonable ground for insti-
tuting them, but not otherwise. Brown
V. Ackroyd, 34 E. L. & Eq. 214 ; Porter
V. Briggs, 38 Iowa, 16(3. But cf. this
note, post. A set of false teeth, and rea-
sonable dentistry. Freeman v. Holmes,
62 Ga. 556 ; Oilman i-. Andrus, 28 Vt.
241. Household supplies reasonable
and proper for the ordinary use of a
family, although the wife receives the
earnings of two daugliters living with
her. Hall v. Weir, 1 Allen, 261. Per-
haps a piano. Parke v. Kleeber, 37
Penn. St. 251. But see Chappell v.
Nunn, 41 L. T. 287 ; 138 Mass. 358.
But, on the other hand, the follow-
ing articles have been held not to be
necessaries : Articles of jewelry for
the wife of a special pleader. Monta-
gue I'. Benedict, 3 B. & C. 631. Semble,
asewing-macliine. 99 Penn. St. 586. A
deed of separation. Ladd v. Lynn, 2 M.
& W. 2G5. The expense of an indict-
ment by the wife for assault. Grindell
V. Godmond, 5 Ad. & El. 755. Espe-
cially if the grounds for instituting
criminal proceedings did not appear
reasonable. Smith v. Davis, 45 N, H.
566. Counsel fees in a suit for divorce
or to enforce a marriage settlement,
whether the wife be plaintiff or defend-
ant. Pearson v. Darrington, 32 Ala.
227; Thompson v. Thompson, 3 Head,
527; Schouler, Hus. & Wife, § 105;
Dow V. Eyster, 79 111. 254; Whipple v.
Giles, 55 N. H. 139; Clarke v. Burke,
65 Wis. .359. Legal expenses and fees
are sometimes ciiargeabie against a
husband, in cases of this sort, because
the statute says so. Tliomas >: Thomas,
7 Bush, 6(55 ; Warner r. Heiden, 28
Wis. 517; Glenn i-. Hill, 50 Ga. 94.
Distinctions are taken ; ase.f/. in favor
of a wife who defends against her hus-
band's complaint. 133 Mass. 503. The
wife's position is a hard one if she can
neither employ counsel on her own
account or her husband's. See 103
Penn. St. 473.
Decisions differ ; but the weight of
authority is that an action at law for
his fees cannot be maintained by a soli-
citor who prosecutes or defends on tlie
wife's behalf against lier Iiusband. Fees
and retainers for more solicitors than
were needful ('annot be allowed. I'as-
sage tickets in general to enable the wife
to travel, except perhaps for a clearly
needful purpose. Knox v. Bushell, 3
C. B. N. s. 334. Medical attendance
rendered, without the husband's assent,
by a quack doctor. Wood v. O'Kelly,
8 Cush. 406. Though when a husband
disputes a bill for medical attendance
on the ground of malpractice, or an un-
necessary surgical operation, the burden
is on him to sliow it. M'Clalian v.
Adams, 19 Pick. 333. " Religious in-
struction," or the rent of a cliurch
pew. St. John's Parish r. Bronson, 40
Conn. 75. Articles, in sliort, which are
extravagant and altogether beyond tlie
husband's circumstances and degree in
life. Caney v. Patton, 2 Ashni. 140.
See Phillipson v. Hayter, L. R. 6 C. P.
38.
Money lent the wife for the pur-
chase of necessaries, or for otlier pur-
95
§ 63 THE DOMESTIC RELATIONS. [PART II.
classes of cases : Jirst, where the wife lives with him ; second,
where she lives separate from him. And where the wife lives
with him, the husband's assent to her contract for necessaries
is inferred from circumstances which show authority actually-
conferred, or else the law supplies an assent for her benefit
where he has improperly refused or neglected to provide for her
wants. Where they live apart, separation is either voluntary
or involuntary. Let us consider these two classes of cases
separately.
§ 63. Wife's Necessaries ■where Spouses live together. —
First, then, as to a husband's liability where his wife lives with
him. Here we are met at the outset by the broad presumption
of assent which cohabitation of itself furnishes. The simple
circumstance that husband and wife are living together has
been generally held sufficient, when nothing to the contrary
intervenes, to raise a presumption that the wife is rightfully
making such purchases of necessaries as she may deem proper.^
Whoever then supplies her in good faith, as the law has usually
been understood, need inquire no further, but may send his bill
to her husband. This rule is a fair one ; for it is not to be
supposed that a husband will go in person to buy every little
article of dress or household provision which may be needful
for his family. As Lord Abinger observed, a wife would be of
little use to her husband in their domestic arrangements, if his
interference was always to be deemed necessary .^ Accordingly,
if an action be brought against the husband for the price of
poses however suitable, is not classed his loan is properly applied Harris v.
with necessaries at tlie common law ; Lee, 1 P. Wms. 482 ; Walker v. Simp-
probablj' because husbands do not often son, 7 W. & S. 83 ; Kenyon d. Farris,
confer an authority liable so easily to 47 Conn. 510 ; Deare v. Soutten, L. R.
abuse. Walker v. Simpson, 7 W. & S. 9 Eq. 151. See Sclmllhofer v. Metzger,
83; Stone v. McNair, 7 Taunt. 432; 7 Rob. (N. Y.) 57G.
Stevenson v. Hardy, 3 Wils. 388 ; Knox i 2 Bright, Hus. & Wife, t>, 7 ; Bull.
V. Bushell, 3 C. B. n. s. 384. But equity N. P. 134 ; Salk. 113 ; 7 Car. & P. 756.
takes a view more consonant to the See also 1 Vent. 42 ; 2 Vent. 155 ;
wants of a distressed wife, and allows Montague v. Benedict, 3 B. & C. 631 ;
the person lending the money to stand Manby v. Scott, 1 Mod. 124 ; 1 Sid.
in the stead of the tradesman, and to 109; 1 Roll. Abr. 351, pi. 5; Freestone
recover if the money was actually v. Butcher, 9 Car. & P. 643.
used for necessaries ; thus leaving him ^ Emmett v. Norton, 8 Car. & P.
bound, in other words, only to see that 506.
96
CHAP. III.] wife's debts AND CONTRACTS. § 63
goods furnished under such circumstances, it must be taken
prima facie that these goods were suppHed by his authority,
and he must show that he is not responsible.^
The wife's contract for necessaries will bind the husband to
a still greater extent if the evidence warrant the inference that
a more extensive authority has in fact been given.^ Thus the |
presumption which cohabitation furnishes is strengthened byi
proof that the wife has been permitted by the husband to pur-
chase other articles of the same sort for the use of the house-
hold.'^ But it must be ordinarily things for what may be
termed the domestic department, to which the wife's authority
to bind her husband is restricted.*
Yet we must observe that the question is, after all, one of
evidence ; it turns upon the question of authority from the
husband ; and this presumption in the wife's favor may be re-
butted by contrary testimony on the husband's behalf.^ Lord
Holt says : " His assent shall be presumed to all necessary
contracts, upon the account of cohabiting, unless the contrary
appear y ^ Not only is the husband permitted to show that
articles in controversy are not such as can be considered neces-
saries, but he may show that he supplied his wife himself or
by other agents, or that he gave her ready money to make the
purchase.' This is on the principle that the husband has the
right to decide from whom and from what place the necessaries
1 Clifford V. Laton, 3 Car. & P. 15, 187. Tlie position assumed by Mr.
per Lord Tenterden. But see pout, p. Story, in liis work on Contracts, that,
9y ; Debenham c. Mellon, L. K. 5 Q. B. as to the wife's necessaries, " the law
D. 394. raises an uncontrolUihle presumption of
2 2 Bright, Hus. & Wife, 9; cases assent on the part of the husband," is
cited in note to Filiuer v. Lynn, 4 Nev. therefore incorrect. Story, Contr. 2d
&Man. 559; M'George v. Egan, 7 Scott, ed. § 97. " What the law does infer is,
Cases, 112. that the wife has authority to contract
3 1 Sid. 128 ; Jewsbury v. Newbold, for things that are really necessary and
40 E. L. & Eq. 518. suitable to the style in which the hus-
* Phillipson v. Hayter, L. R. 6 C. P. band chooses to live, in so far as the
38. articles fall fairly within the domestic
5 Lane v. Ironmonger, 13 M. & W. department, which is ordinarily con-
368. fided to the management of the wife."
" Etherington v. Parrott, 1 Salk. Willes, J., in Phillipson ?'. Hayter, L. R.
118. See also, to the same effect, Mc- 6 C. P. 38. And see Bovill, C. J., ib.,
Cutchen j'. McGahay, 11 -Johns. 281 ; to the same effect.
Montague v. Benedict, 3 B. & C. 6ol ; " 1 Sid. 109; Etherington v. Parrott,
and note by Am. editor to Bing. Inf. 2 Ld. Raym. 1006.
7 97
§ 63 THE DOMESTIC PwELATEONS. [PART U.
shall come, and that, so long as he has provided necessaries in
some way, his marital obligation is discharged, whatever may-
be the method he chooses to adopt. Accordingly in the class
of cases which we are now considering, namely, where the
spouses dwell together, so long as the husband is willing to
provide necessaries at his own home, he is not liable to provide
them elsewhere.^ In general, while the spouses live together,
a husband who supplies his wife with necessaries suitable to
her position and his own is not liable to others for debts con-
tracted by her on such an account without his previous authority
or subsequent sanction.^
As a rule, a husband who furnishes his wife and family with
necessaries, in any reasonable manner, has the right to prohibit
particular persons from trusting or dealing with her on his
account. Notice to this effect, properly given, will be effectual
as against any presumption which cohabitation raises.^ And
notice given to a tradesman's servant has been held sufficient
notice to the master. But notice given in the newspapers not
to trust a wife is held to be of no effect against such as have
not had actual notice.* A written notice to the tradesman is
in good form.^ But a successful defence against one bill is not
sufficient notice of prohibition against subsequent bllls.^ In
order to bind the husband for goods furnished after notice to
cease furnishing, the seller must show not only that the articles
he furnishes are necessaries, but that the husband failed to
supply them properly.'^
Generally, in such cases, it has been said the burden of proof
is upon the husband.^ Such a statement, however, must be
taken with caution. Cohabitation furnishes, as we have seen,
a presumption of authority ; but the latest English decisions
go very far toward annihilating that presumption by insisting
that the question of the wife's express or implied authority is
purely one of fact according to the circumstances of each case,
1 Morgan v. Iliiglies, 20 Tex. 141; * Walker v. Laighton, 11 Fost. (N,
Jolly V. Rees, 15 C. B. n. s. 628. H.) 111.
2 Seaton v. Benedict, 5 Bing. 28. ^ qq Jovra, 698.
3 McCutchen v. McGahay, llJolins. ^ Ogden v. Prentice, 33 Barb. 160.
281 ; Keller v. Phillips, 39 N. Y. 351. ^ Barr v. Armstrong, 56 Mo. 577.
8 Tebbiets v. Hapgood, 34 N. H. 420.
98
CHAP. III.] wife's debts AND CONTRACTS. § 64:
where the spouses live together. And the English court of
appeals for such cases ^ has lately confirmed a lower tribunal,^
as though to dispense very considerably with the necessity of
notice to tradesmen on the part of a husband who means to
supply his wife properly, and at the same time prevent her '
from pledging his credit. The point decided, however, affects
only tradesmen and others who have had no previous dealings
with the wife, to which the husband's assent was given.^
§ 64. Wife's Necessaries, •where Spouses live together ; Same
Subject continued. — Another point, as we have already sug-
gested, is available to the person who has furnished necessaries
on the general principles of agency ; namely, that a husband's
subsequent ratification is as good as a previous authority. So,
then, if it can be shown that the husband knew his wife had or-
dered certain necessaries, and yet failed to rescind the purchase ;
or if there be proof that he knew she wore the articles and
yet expressed no disapprobation, — the law presumes approval
of her contract and binds him.* To this principle, perhaps,
may be referred the rule which jVfr. Roper further states (with-
out, however, citing any authorities), that the husband is liable
whenever the goods purchased by his wife come to her or his
use with his knowledge and permission, or when he allows her
to retain and enjoy them ; in other words, that a legal liability
becomes fixed from the fact that the husband and his household
take the benefit of the purchase.^ But the mere fact that a
husband sees his wife wearing articles purchased without au-
thority will not charge him ; the question is one of approval
1 Debenham y. Mellon, L. R. 5 Q. B. Moo. & P. 74 ; Parke, B., in Lane i'.
D. ?/t4. Doubt is tlirown by this deci- Ironmonger, 1.3 M. & W. 368 ; Day
sion upon Johnston r. Suraner, 3 H. & v. Burnham, 3() Vt. 37; Woodward v.
N. 261. Barnes, 43 Vt. 330 ; Ogden v. Prentice,
2 Jolly V. Kees, 15 C. B. n. s. 628. .33 Barb. 160.
» Debenham v. Mellon, L. R. 5 Q. B. & 2Roper,Hus. & Wife,112 ; 2Bright,
D. 394. The opinion of Bramwell, L J., Hus. & Wife, 9. Mr. Macqueen (Hus.
in this case is worthy of careful peru- & Wife, note to p. 1.32) points out thi3
sal. The same principle is confirmed statement of Mr. Roper with a doubt
in this country by Woodward v. Barnes, as to the authority, although he admits
43 Vt. .330. But cf. Cothran v. Lee, the justice of such a rule, on the civil-
24 Ala. 380; Schouler, Hus. & Wife, law ma.xim that " no one should enrich
§ 107. himself at another's loss."
* Seaton v. Benedict, 5 Bing. 28 ; 2
99
§ 64 THE DOMESTIC RELATIONS. [PART II.
or disapproval, assent or dissent, and the presumption against
him may be rebutted.^ If the husband promises to pay for
necessaries already bought, such as he ought to supply, it is a
ratification, even though he further directs the tradesman to
supply no more.^
The husband's dissent to his wife's purchase of necessaries
should be expressed in an effectual and suitable manner. Mere
objection on his part is insufiicient. Thus a bill for medical
attendance must be paid by him, even though he objected to
the visits, as long as he was present, and gave no notice to the
physician that the latter must look elsewhere for payment.^
And private arrangements between husband and wife as to the
method of payment cannot affect the rights of third parties who
were entitled to notice thereof and failed to receive it* If one
means, when sued in assumpsit for necessaries, to defend the
action as to part only, it would appear that his proper plea will
be that he is not liable beyond a certain amount, and he should
pay that amount into court.^ But if he means to dispute the
charge altogether, common honesty dictates that the articles
unwarrantably purchased should be restored without delay.^
He may introduce evidence at the trial to show that the com-
modities in question were not necessaries, inasmuch as the wife
had incurred other similar debts with other parties.'^ In a
word, the question is (in the absence of such evidence of neces-
sity as may show an agency in law) whether there was an
agency and authority in fact.^
The presumption of an agency on her husband's behalf for
necessaries (which is strong because it is the husband's duty to
furnish them) may be overcome by the fact of a purchase by
the wife upon her own or some third person's credit, wherever
1 Atkins V. Curwood, 7 Car. & P. ^ Emmet v. Norton, 8 Car. & P.
756. 506.
•■^ Conrad v. Abbott, 132 Mass. 330. 6 Macq. Hus. & Wife, 136; Oilman
8 Cotliran i-. Lee, 24 Ala. 380. v. Andrus, 28 Vt. 241. See Tuttle v.
4 lb. ; Johnston v. Sumner, 3 Hurl. Holland, 43 Vt. 542.
& Nor. 2G1. We liave seen, supra, "^ Renaux v. Teakle, 20 E. L. & Eq.
§ 03, that the latest English cases con- 345.
siderably reduce the tradesman's right ^ Read v. Teakle, 24 E. L, & Eq.
of notice as formerly imderstood. De- 332.
benham v. Mellon, L. R. 5 Q. B. D. 394.
100
CHAP. III.] wife's debts AND CONTRACTS. § 65
she is really trusted as principal herself, or as the agent of some
one else than her spouse ; or where the third person ordered
them in person.^ In all cases the husband will be discharged
from liability where it appears that the goods were not supplied
on his credit, but that the party furnishing them trusted the >
wife individually .2 She might have separate property, inde-'
pendently of her husband, to which the tradesman looked for
payment, or a special allowance of sufficient amount might
have been made her by her husband.^ Thus where the hus-
band during a temporary absence made an allowance to his
wife, he was held not to be liable for necessaries supplied to
her, the tradesman having trusted to payment from her allow-
ance.* So if credit be given to any third party, the husband is
not liable.^ And of course, if the tradesman has agreed not to
charge him, there is no liability incurred by the husband.*^
Though the wife be without property, the rule is the same ;
and it would appear that the husband may give permission
to trust his wife on her separate credit without incurring
liability."
§ 65. Wife's Necessaries ■where Spouses live together ; Sub-
ject continued. — The usual analogies of agency may be tran-
scended, notwitlistanding the spouses live together, when the
one is truly delinquent, and the other deprived of the support
owing her. Wherever the husband neglects to supply his wife
1 Tliougli as to the right of her Renaux v. Teakle, 20 E. L. & Eq.
father or any other tliird person to 345.
stand in place of a tradesman, under ^ Harvey v. Norton, 4 Jur. 42.
proper circumstances of necessity, see ^ Dixon v. Hurrell, 8 Car. & P. 717.
supra, § Gl, n. 7 Taylor r. Shelton, 30 Conn. 122.
2 3 Camp. 22; 5 Taunt. 356; Pear- For circumstances thus repelling the
son u. Darrington, 32 Ala. 227; Stam- presumption of agency, see Schouler,
niers v. Macomb, 2 Wend. 454 ; Moses Hus. & Wife, § 109 and cases cited ;
r. Forgartie, 2 Hill (S. C), .335 ; Carter Mitchell v. Treanor, 11 Ga. 324 ; 2 Tyr.
V. Howard, 39 Vt. 106 ; Bugbee i'. Blood, 523. The husband is not relieved by
48 Vt. 497. See 33 Minn. 370. the single circumstance that the goods
3 Levett V. Penrice, 24 Miss. 410; were charged on the shop books to the
Simmons v. McElwain, 20 Barb. 420 ; wife, since prima facie the actual credit
McMahon v. Lewis, 4 Bush, 138; Weis- is always supposed to be given to the
ker r. Lowenthal, 31 Md. 413. husband. Jewsbury p. Newbold, 40
* Holt V. Brien, 4 B. & Aid. 252 ; E. L. & Eq. 518 ; Godfrey v. Brooks,
Montague v. Benedict, 3 B. & C. 631 ; 6 Harring. 396 ; Furlong v. Hyson, 35
Harshaw v. Merryman, 18 Miss. 106 ; Me. 332.
101
§ 66 THE DOMESTIC RELATIONS. [PART II.
with necessaries, or the means of procuring them, she may ob-
tain what is strictly needful for her support, although it be
against his wishes, on the pledge of his credit. And the person
furnishing the articles may sue the husband notwithstanding
he has been expressly forbidden to trust her.^ But here the
law raises a presumption of agency only for the purpose of en-
forcing a marital obligation. Such an agency is perhaps an
agency of necessity.^ And the tradesman or other party fur-
nishing supplies when forbidden is bound to show affirmatively
and clearly that the husband did not provide necessaries for his
wife, suitable to her condition in life.^
§ 66. "Wife's Necessaries ■where Spouses live apart. — In the
second class of cases which we are to consider, the husband's
liability for his wife's necessaries arises where they are living
apart. The rule is that where the husband unlawfully aban-
dons his wife, turns her away without reasonable cause, or
compels her by ill usage to leave him, without adequate provi-
sion, he is liable for her necessaries, and sends credit with her
to that extent* The wife's faithfulness, on the one hand, to
her marriage obligations ; on the other, the husband's disregard
of his own, — these afford the reason of the above rule and sug-
gest its proper limitation, and yet the rule appears in the latest
cases to assume the husband's continuing liability unless he has
good ground for divorce. The wife in such cases has an au-
thority ; but here what some have certainly called an authority
of necessity.^ Or we may say, rather, that the law, by a fiction,
infers an agency without asking evidence which should show
authority in fact, and requires the husband, under these circum-
stances, to maintain his wife elsewhere.
1 Keller v. Pliillips, 39 N. Y. 351 ; a pauper, see Monson v. Williams, 6
Cromwell v. Benjamin, 41 Barb. 558; Gray, 416; Rumney v. Keyes, 7 N. H.
Woodward v. Barnes, 43 Vt. 330. 571 ; Norton v. Rhodes, 18 Barb. 100;
■■2 Pollock, C. B., in Johnston v. Sum- Conmiissioners v. Hildebrand, 1 Carter,
ner, 3 H. & N. 261, likens the agency 555.
under such circumstances to that which * 2 Kent, Com. 146, 147; 2 Bright,
the captain of a ship sometimes ex- Hus. & Wife, 10-12; Snover y. Blair, 1
ercises. Dutch. 94 ; Mayhew v. Thayer, 8 Gray,
3 Keller v. Phillips, 39 N. Y. 351; 172; Eilor v. Crull, 99 Ind. 375.
Cromwell i'. Benjamin, 41 Barb. 558 ; & See Pollock, C. B., in Johnston v.
Woodward v. Barnes, 43 Vt. 330. As Sumner, 3 Hurl. & Nor. 261.
to suing for support of the wife aa
102
CHAP. III.] wife's debts AND CONTRACTS. § 66
This rule suggests, then, three cases where the wife may
pledge her husband's credit when they are living apart: the
first, where he abandons her ; the second, where he turns her
out of doors without reasonable cause ; the third, where his
misconduct compels her to leave him. In the first two cases
his own acts impose the necessity, and her conduct is involun-
tary. But in the third her conduct might be considered volun-
tary, though induced by his misconduct; and the rule here
becomes perplexing. The doctrine of Horwood v. Heffer, an
old case, is that the wife is not justified in leaving her husband
unless she has been driven from the liouse by actual violence
or apprehension for her personal safety ; and in this case the
husband was held not to be liable since she had quitted his
house because he placed a protlig-ate woman at the head of the
table.^ This doctrine has been strongly condemned in later
times, and the modern cases justly regard such studied insults
as capable of legal redress. If, therefore, the husband, by his
indecent conduct, renders his house unfit for a modest woman
to share it, the rule now is that she may leave him, and pledge
his credit elsewhere for her necessaries.^
Where the wife is justified on any of the above grounds in
living apart from her husband, he is not discharged from lia-
bility by showing that her contract was in fact made without
his authority and contrary to his wishes. Nor will his gen-
eral advertisement or particular notice to individuals not to
give credit to his wife affect the case.^ The legal presumption
must prevail for the wife's protection.
Nor, in such cases, can the husband terminate his liability
for necessaries supplied his wife during the separation, by a
simple request on his part that she shall return.* And it is
clear that if he only offers to take her back upon conditions
1 3 Taunt. 421. 78 ; Bazeley v. Forder, L. R. 3 Q. B.
^ Per Lord Ellenliorough, Liddlow 559.
t'. Wilmot, 2 Stark. 77 ; 1 Selw. N. P. 3 4 Esp. 41 ; 1 Selw. N. P. 298, 11th
298, lltli ed. ; per Best, C. J., Houlis- ed. ; 2 Stra. 1214; Watkins v. De Ar-
ton i;. Smyth, 3 Ring. 127 ; 10 Moo. 482 ; mond, 89 Ind. 553 ; Pierpont v. Wilson,
2 Car. & P. 22 ; Descelles v. Kadmus, 8 40 Conn. 450. See Black v. Bryan, 18
Clarke, gl ; Hultz v. Gibbs, 66 Penn. Tex. 453.
St. 360 ; Reynolds c. Sweetser, 15 Gray, * Emery v. Emery, 1 You. & Jer. 501.
103
§ 66 THE DOMESTIC RELATIONS. [PART II.
which are unreasonable and improper, his liability continues.^
It is the husband's duty, by some positive act, to determine
his liability ; though if the wife voluntarily returns, his liability
for necessaries furnished abroad is discontinued. But in default
of any amicable arrangement, he must institute proceedings in
the courts with divorce jurisdiction. And until some such
unequivocal act is done, a person making a proper claim in a
court of law for necessaries supplied to the wife may be entitled
to recover against him.^ Where the wife had good reasons for
leaving, the husband is not discharged, by the fact of her subse-
quent return, from liability for necessaries furnished during her
justifiable absence.^
But the wife should have weighty and sufficient cause for
leaving her husband, in order to be permitted, on her part, to
pledge his credit abroad. In general, the same facts suffice as
justify divorce from bed and board.* But where she leaves
her husband without .sufficient cause and against his will, he
is not liable for her maintenance elsewhere, and she cannot
bind him ; especially if the person furnishing goods knows
that cohabitation has ceased, and makes no further inquiries.^
Supposing the wife leaves voluntarily and without sufficient
cause, against her husband's wishes, and she afterwards returns
to her husband, is he bound to receive her; and if he refuse
to receive her, can she make him liable for debts contracted
thenceforth for necessaries ? The current of authorities is in
favor of such a position, provided she conducted herself properly
in her absence.^ Some, however, have suggested doubts as to
this doctrine ; for, they say, since the wife by her own volun-
1 Reed v. Moore, 5 Car. & P. 200. Etherington v. Parrott, 2 Ld. Raym.
2 76. See Atkyns v. Pearce, 2 C. B. 1006 ; 1 8id. laO ; Bailey r. Calcott, 4
K. 8. 763. Jur. 699 ; Collins v. Mitchell, 5 Harring.
2 Reynolds v. Sweetser, 15 Gray, 369; Bevier i\ Galloway, 71 III. 517;
78. Harttman v. Tegart, 12 ICan. 177 ; Oin-
* Brown v. Patton, 3 Humph. 135; son v. Heritage, 45 Ind. 73; Thorne v.
Hancock v. Merrick, 10 Cusli. 41 ; Rea Kathan, 51 Vt. 520.
V. Durkee, 25 111. 503; Schindel v. « Manby ?;. Scott. 1 Sid. 129; 1 Mod.
Schindel, 12 Md. 294 ; Stevens v. Story, 131 ; Hindley v. Westmeath, 6 B. & C.
43 Vt. 327; Barker v. Dayton, 28 200; Howard v. Whetstone, 10 Ohio,
Wis. 367 ; Thorpe v. Shapleigh, 67 Me. 365 ; McCutchen v. McGahay, 11 Johns.
235. 281.
6 Brown v. Midgett, 40 Vt. 68;
104
CHAP. III.] wife's debts AND CONTRACTS. § 66
tary act discharged the husband from his obligation to maintain
her, by unnecessarily quitting his house without his consent, it
is but reasonable to say that his liability to support her after-
wards should not be revived by implication without his express
concurrence in consenting to his wife's return to his protection,
or until cohabitation was restored by mutual agreement, or by
the sentence of a court with appropriate matrimonial jurisdic-
tion.^ This is fair reasoning on general grounds, and applies a
mutual doctrine to husband and wife; but the courts appear to
have thought otherwise.
If, however, as the reader may have inferred, the wife elopes
and then commits adultery, or if her adultery causes separation,
the husband becomes relieved from her support. Her crime
ought to put an end to her authority to bind an injured spouse,
and it does.^ In such case his refusal to take her back again
will not revive his obligation to maintain her. But as for-
giveness always interposes a bar to legal remedies on behalf of
the injured one, he becomes once more liable for her necessa-
ries, where he voluntarily receives her again and forgives her.^
There are cases where the marital rights and duties become
more confused. Supposing the wife be turned out of doors, or,
what amounts to the same thing, be forced by her husband's
misconduct to leave ; and she afterwards, being beyond that
shelter which every wife needs, commit adultery ; is he then
relieved from supporting her ? In Govier v. Hancock it was
held that he was, even though his own adultery caused her de-
parture."^ This was a very harsh decision. The court, however,
admitted that necessaries furnished before her own adultery
could be recovered from her husband. And in a suhsequent
case it was held that adulterous conduct of the wife, with the
connivance of the husband, or at least without such a separa-
tion of the married pair as to make her misconduct notorious,
1 See 2 Bright, Hus. & Wife, 13. die v. Grant, 8 Car. & P. 512; Schou-
But see 2 Bishop, Mar. & Div. 5tli ed. ler, Hns. & Wife, § 11.3.
§ 3.3. See Sohouler, Hus. & Wife, § 523, 3 Harris r. Morris, 4 Esp. 41 ; T5obi-
as to divorce remedies. son v. Gosnold, 6 Mod. 171; Holt v.
'i Morris v. Martin, 1 Stra. 647 ; Brien, 4 B. & Aid. 252 ; Quincy v.
Manwaring v. Sands, 2 Stra. 707 ; Har- Quincy, 10 N. H. 272.
* 6 T. R. 603.
105
§ 67 THE DOMESTIC RELATIONS. [PAET U.
would not, per se, operate as a defence and protect the husband
from liability.-^ And more to the point is a case decided only
a short time ago, where the husband was held liable, even
though the wife had been found guilty of adultery in the
divorce court ; since it appeared that he also had been found
guilty of adultery, so that no divorce was decreed.^ Still further
a husband has been held liable for necessaries where he con-
nived at his wife's adultery and then turned her out of doors,^
for his bad faith keeps him bound to her marital support. But
one who harbors another man's wife for illicit purposes is a
wrong-doer, and cannot recover for her maintenance, even
though she had fled from her own husband's cruelty.^
§ 67. Wife's Necessaries •where Spouses live apart ; Subject
continued. — There is a dictum of Lord Holt to be found in an
old case (or rather in the reporters note), which sometimes
finds its way to the text-books ; namely, that, if a husband
receives back his wife, he becomes liable for her debts con-
tracted during the whole period of her unauthorized absence.^
This seems very unreasonable, where the fault was on her part.
The true doctrine is, doubtless, that after such reconciliation
the husband is liable upon her subsequent contracts only.
And this is the rule expressly asserted in some American
cases.^
1 Norton v. Fazan, 1 B. & P. 226. a necessary consequence of the deter-
^ Needham v. Bremner, L. R. 1 C. P. mination of the husband's responsibil-
583. ity that the wife shouUl be at liberty
8 Wilson V. Glossop, 19 Q. B. D. to act as a/eme so/e ; but that the con-
379(1887). And see Ferreu t'. Moore, trary was the truth; and that any
69 N. H. 106. persons knowing her condition, wlio
4 Almy V. Wilcox, 110 Mass. 443. chose to trust her, could not complain
5 Robison v. Gosnold, 6 Mod. 171. if they found themselves unable to sue
See Bing. Inf. 190, n., Am. ed. her. But these remarks are very cau-
6 Williams y. Prince, 3 Strobh. 400; tiously put; and it seems reasonable
Reese v. Chilton, 26 Mo. .508 ; Oinson to suppose, as Justice BuUer expresses
v. Heritage, 45 Ind. 73. See also Chitty, himself in the case upon which Lord
Contr. 168 ; Williams v. McGahay, 12 Kenyon commented, that the wife
Johns. 293. would become liable therefor ; cer-
How far the wife can contract lia- tainly if siie represented herself as a
bility for necessaries in her own person, single woman. Cox v. Kitchin, 1 B. &
when the husband is discharged by her P. 339 ; Childress v. Mann, 33 Ala.
delinquency, was considered in the case 206 ; McHenry v. Davies, L. R. 10 Eq.
of Marshall v. Rutton, 8 T. R. 547. 88. See § 170, note, as to wife's neces-
Lord Kenyon observed that it was not saries under modern legislation.
106
1
CHAP. III.] wife's debts AND CONTRACTS. § 68
The destitute wife of a lunatic living separate from her in
an asylum may yet pledge his credit for necessaries ; ^ though
not, of course, for what she does not need, as where, for ex-
ample, she receives sufficient income out of his estate.^ She
cannot pledge, it might seem, where he is banished or in prison,
provided the law recognize her as feme sole ; ^ but as an agent
of necessity, and to compel his marital obligation, she ought to
be permitted to do so if she desires, and not unfrequently does,
where he is in jail or prison.* If the wife be in an insane
asylum, the husband is not the le^s liable for her support.^
But not where she is in prison.^ And it seems that under
circumstances of misconduct on the wife's part the husband
may compel her to assent, after her release from confinement,
to live separate on an allowance, without being chargeable for
her support as one who has turned his wife out of doors."
§ 68. "Wife's Necessaries ■where Spouses live apart ; Mutual
Separation. — But besides involuntary separation, there is the
case of voluntary separation to be considered. This last, now
so frequent, the law tolerates, but does not favor. The rule
is, that where a husband and wife parted by mutual consent,
and a suitable allowance is furnished the wife, the husband is
not bound to pay any bills which she may have contracted as
his agent.^ It is enough that the separation be a matter of
common reputation where he resides. But to this allowance
two things are requisite : first, that it shall be really sufficient
for the wife ; second, that it shall be regularly paid. If either
1 Reed ;;. Legard, 4 E. L. & Eq. 523 ; ^ 2 Stra. 1122 ; Bates v. Enriglit, 42
Shaw V. Thompson, 16 Pick. 198. Me. 105.
2 Chappell V. Nunn, 41 L. T. n. s. " Wray v. "Wray, .S.3 Ala. 187 ;
287 ; Richardson v. Du Bois, L. R. 5 Brookfield v. Allen, 6 Allen, 585.
Q. B. 51. 8 8 Car. & P. 717 ; 1 Salk. 1 16 ; 1 Ld.
3 Reeve, Doni. Rel. 86. Raym. 444; Hindley v. Westmeath, 6
* See Ahern v. Easterl.v, 42 Conn. B. & C. 200 ; Mizen v. Pick, 3 M. & W.
546. The husband is liable for his 481; Schouler, Hus. & Wife, § 117;
wife's necessaries, even though she lias Calkins v. Long, 22 Barb. 97 ; Kemp
been declared a/eme sole trader. Mark- i'. Downham, 5 Ilarring. 417; Caney i-.
ley V. Wartman, 9 Phila. 236. Patton, 2 Ashm. 140; Baker v. Barney,
5 Wray v. Wray, 3.3 Ala. 187. And 8 Johns. 72. This doctrine finds recent
see Alna v. Plummer, 4 Greenl. 258 ; support in Alley v. Winn, 134 Mass.
Wray r. Cox, 24 Ala. 337; Brookfield 77.
V. Allen, 6 Allen, 585.
107
§ 68 THE DOMESTIC RELATIONS. [PART II.
requirement be wanting, — a fact which the seller must ascer-
tain at his peril, — the wife is not confined to her remedy on
the deed of separation, if any, but may pledge her husband's
credit. As to the first requirement, the question is not whether
the wife consented to accept a certain allowance as sufficient
for her support, but whether it be actually sufficient in the
opinion of the jury.^ As to the second, the mere covenant or
contract of the husband to pay separate maintenance will not
discharge him from liability for necessaries ; for, as was ob-
served in a leading case, " the common law does not relieve any
man from an obligation on the mere ground of an agreement
to do something else in the place, unless that agreement be
performed." ^
If wife and husband part by mutual consent, and there is no
allowance to the wife, it may be presumed that the wife has
the right to pledge her husband's credit, for he has not re-
lieved himself of his marital obligation.-^ It is immaterial
whether the wife's allowance be secured by deed or not, since
it is the payment which discharges him.'* If the wife makes
no claim for further support, nor offers to return, all the more
does the arrangement protect him from liability.^
But on account of the increasing favor with which separa-
tion deeds are held, allowance of maintenance by a formal sepa-
ration deed appears under the latest English decisions to be
treated with so great respect as to be deemed conclusive of the
extent and method of a husband's liability for his wife's sup-
port during their separation.^
1 Tliompson i\ Harvey, 4 Burr. Holden v. Cope, 2 Car. & K. 437. But
2177 ; Hodgkinson v. Fletclier, 4 Camp, see Ewers v. Hutton, ?> Esp. 255.
N. P. 70 ; Pearson r. Darrington, 32 5 Alley v. Winn, 134 Mass. 77.
Ala. 227 ; Liddlow r. Wilmot', 2- Star- 6 Eastland r. Burcliell, L. R. 3 Q.
kie, 77 ; Einmet v. Norton, 8 Car. & P. B. D. 4.32. Qn. wliether tlie wife has
506. any remedy afforded lier under such cir-
2 Nurse i\ Craig, 5 B. & P. 148, per cumstanees for procuring the tnainte-
Heath,.J. ; Hindley v. Westmeath, 6 B. nance which it continues the husband's
& C. 200; Lockwood v. Thomas, 12 duty to render. Lush, J, in this case
Johns. 248; Kimball r. Key es, 11 Wend, seems to rest the wife's general right
S3. to pledge her husband's credit too ex-
3 Ross r>. Ross, 60 111. 569. clusively upon the doctrine of agency.
* Hodgkinson v. Fletcher, 4 Camp. See § 70, post.
70; Emery v. Neighbour, 2 Halst. 142;
108
CHAP. III.] wife's debts AND CONTRACTS. § 69
§ 69. Wife's Necessaries -where Spouses live apart ; Presump-
tions ; Good Faith. — It has generally been understood that
whenever husband and wife separate, under circumstances
showing misconduct on the part of either, the presumption of
agency changes sides. The fact of their living apart is of itself
a caution to all who hold dealings with a married pair. While
they cohabit it is usually for the husband to show a want of
authority ; when they cease to cohabit the seller must prove
authority ; that is to say, he must prove that the wife was in
need of the goods, that the husband failed to supply her, and
that the wife was not at fault. Prima facie, therefore, a woman
living apart from her husband, upon either voluntary or invol-
untary separation,^ has no authority to bind him.^ This con-
trast of presumptions is subject to the new English doctrine
lately commented upon, which seems to put all new tradesmen
on their guard in their first dealings with a married woman.^
Where the husband is merely absent from home for temporary
purposes, the wife's presumed authority continues.'* And where
the fact of separation is not commonly known, or wliere, by
occasional visits, the husband keeps up the appearance of co-
habitation with his wife, he has generally been considered
prima facie liable as before;^ though notice of an allowance is
notice of his dissent to the wife's contracts.^ He may agree
with the wife's tradesman, while living apart from her, that
the goods supplied shall not be charged to him ; and to such
special agreement the tradesman will be held.'^
Courts will always regard the rule of good faith in matters
relative to the wife's necessaries. Thus, if the husband and
wife be living apart without the husband's fault, and he wishes
to terminate his liability by requesting her to return home,
1 Johnston r. Sumner, 3 Hurl. & Story, 4-3 Vt. 327 ; Sturtevant y. Starin,
Nor. 261, per Pollock, C. B., and au- 19 Wis. 268; 132 Mass. 181.
thorities there commented upon. 3 Supra, § 63; Debenham v. Mellon,
2 Etherington v. Parrott, 2 Ld. L. R. 5 Q. B. D. 394.
Raym. 1006; Montague v. Benedict, 3 * Frost v. Willis, 13 Vt. 202.
B. & C. 631 ; Walker v. Simpson, 7 W. & Rawlins v. Vandyke, 3 Esp. 250,
& S. 83; Mitchell v. Treanor, 11 Ga. per Lord Eldon.
.324 ; Rea v. Durkee, 25 111. 503 ; Schou- ^ Hinton v. Hudson, Frcem. 248 ;
ler, Has. & Wife, § 119; Stevens v. Kimball y. Keyes, 11 Wend. .33.
" Dixon V. Hurrell, 8 Car. & P. 717.
109
§ 70 THE DOMESTIC RELATIONS. [PART II.
his conduct must show sincerity ; though, if his intentions are
bona fide, and he makes suitable provision at his own home,
the wife forfeits all claim to further support by refusing to
return.^
§ 70. Wife's Necessaries ; Summary of Doctrine. — The com-
mon-law doctrine, as we have seen, makes the ground of the
husband's liability for his wife's necessaries essentially that
of agency. This agency is stated as an agency of necessity
where a deserving wife stands in want of supplies because
of her husband's misconduct. But in truth such necessity
transcends all the analogies of an authorized representation,
and inasmuch as the wife has no property and is legally de-
pendent on her husband, a right to supply her wants upon
his credit is inferred from the nature of her situation. When
both spouses live together, the wife may pledge her husband's
credit for necessaries, unless he supplies them otherwise, and
so performs his duty after his own method ; if they separate,
his liability continues commensurate with his obligation, so
that she "can only pledge his credit when the fault was not her
own ; but, being justified in her conduct, the conjugal right
to necessaries is perfect, and consequently enforceable in this
manner, unless he performs his duty after his own method.
The discrepancy of the cases relates chiefly to presumptions in
favor of the person who supplies the necessaries ; and here, as
we have seen, the latest decisions leave it in doubt how strong
a presumption cohabitation as husband and wife furnishes by
itself. Formerly it was thought that private arrangements
between husband and wife, where they lived together, could not
be set up against the seller who had no notice thereof ; but
latterly the English inclination has been, as we have seen,^ to
limit the implied agency of the wife, during cohabitation, to
those whose dealings have already been recognized by the hus-
band, and who therefore ought to have notice of revocation ;
which rule of course narrows down the presumption. What-
ever presumption of authority may be inferred from cohabita-
1 Walker v. Laighton, 11 Foster, ^ gupra, § 63.
111. And see Cartwright v. Bate, 1
Allen, 614.
110
CHAP. III.] wife's debts AND CONTRACTS. § 71
tion, separation raises the counter-presumption that the wife
has no authority to pledge her husband's credit. Upon the
whole, to reconcile the earlier and later decisions, the wife's
right of procuring necessaries on her husband's credit may be
deduced from these two combined considerations : (1) That
where the husband proves remiss in furnishing needful support,
the wife has the right to compel such support by pledging his
credit, whether they cohabit or dwell apart, so long as miscon-
duct on her part has not absolved him from the conjugal duty,
— this rule of compulsion taking largely the place, in modern
times, of the old remedies formerly pursued in the ecclesiastical
courts ; (2) That any wife may be the agent of her husband
and bind him to the extent of her authority, like other repre-
sentatives. In short, the rule of agency as to wife's necessaries
is carried far enough in actual practice to make that agency a
fiction for the sake of a wife's self-protection against her un-
faithful spouse.^
We may add that the husband's express contract with others,
or his express promise or express sanction comes in aid of such
legal inference concerning his liability for supplies furnished
his wife, as may be drawn from any of the matrimonial situa-
tions which we have considered.^
§71. Wife's Necessaries; Miscellaneous Points. — Marriage
dc facto, or reputed marriage, is always sufficient to charge the
husband with his wife's necessaries. There seem to be three
reasons why this should be so : one, that a tradesman cannot
1 Tliat agency is not the full meas- that the wife is permitted to maintain
ure of the wife's power to bind her her rights against an unfaithful hus-
husband for what she needs is further band in self-protection. Tlie English
seen in the decisions upon the point of courts included articles of peace against
a wife's legal expenses already noticed, the husband under necessaries. Supra,
Supra, § (31, n. Here there is some § 61, n. But they stopped short at in-
confusion in the decisions ; but a dispo- dictment of the husband for assault,
sition very clear is shown b^' the courts Supra, § 61, n.
to allow the wife in numerous instances - See e. g. Daubney v. Hughes, 60
to prosecute or defend in furtlierance N. Y. 187. Any notice intended to ter-
of her marital rights, even though it be minate the continuance of an express
against the husband himself. Incon- contract must, in order to be effectual,
sistently enough, the fiction of agency be appropriate thereto. Ih. And see
as to necessaries has been here em- Mickelberry v. Harvey, 58 Ind. 523.
ployed ; but the true ground is rather
111
§ 71 THE DOMESTIC RELATIONS. [PART II.
be expected to inquire into such matters ; another, that agency
binds any principal ; the third, that it is just that a man who
holds out a woman to society as his wife should maintain her
as such. Hence an agency is to be inferred wherever there is
cohabitation of parties as husband and wife ; though not, it
would appear, where the cohabitation is irregular and calculated
to raise a different impression, and strong proof of actual au-
thority bestowed is not furnished.^
An adult husband is bound on the contract of his minor
wife for necessaries.^ And a minor husband is liable for neces-
saries furnished his wife, whether she be minor or adult.^ The
ordinary rules of husband and wife, therefore, apply so far as
such necessaries are concerned. If old enough to contract
marriage, an infant is presumed old enough to pay for his wife's
board and lodging as well as his own.^ But with regard to his
wife's general contracts, it would seem that infancy, which in-
capacitates him from making contracts in person, also disquali-
fies him from employing an attorney.
As an agent duly authorized, the wife may doubtless pledge
her husband's credit for the necessaries of the children, as well
as her own. But upon the doctrine of presumptions and an
implied authority from him to do so, the common law is more
reserved. " Family necessaries " is an expression of our later
statutes which indicates a growing favor in that direction, and
modern custom may, of course, extend the implied scope of an
agency beyond earlier usage.^
But as the obligation of a husband to support does not ex-
tend beyond his wife and own children, nor always to step-
children,- a wife cannot ordinarily make a binding contract to
support her own parent, brother, sister, or near relatives, either
at his expense or her own, since she is neither sui juris noi
presumably his agent for that purpose.®
1 2 Esp. 6.'j7. And see 1 Greenl. 428. And see Bush i'. Lindsey, 14 Ga.
Evid. § 207 ; 1 Camp. 245 ; Jewsbury 687.
V. Newbold, 40 E. L. & Eq. 518 ; Munroe * lb.
V. DeCliemant, 4 Camp. 215; Schouler, ^ See § 170, note. And see Cook r.
Hus. & Wife, § 122. Ligon, 54 Miss. 368 ; Powers v. Russell,
^ Nicliolson V. Wilborn, 13 Ga. 467. 26 Mich. 179.
3 Cantine v. Phillips, 5 Harring. "^ Olney v. Howe, 89 111. 556.
112
CHAP. III.] wife's debts AND CONTRACTS. § 72
Policy has regarded parental claims for necessaries furnished
to a wife with great distrust. Such claims may doubtless
accrue under an express contract.^ But the law will not ordi-
narily imply a contract, as against a son-in-law, to pay his
wife's board while staying at her father's house. Some of the
latest cases, nevertheless, imply a promise on the husbands
part to pay his wife's board, where she goes to her parent's
house upon a mutual understanding that she may stay there
indefinitely, the spouses having quarrelled.^ With the grow-
ing laxity of the marriage union, the parent's intervention on a
daughter's behalf against her husband, with the view of pro-
curing her divorce, and boarding her at the husband's cost
meantime, is, unhappily, becoming far more common than for-
merly, and more readily encouraged by the courts.
The reader has perceived that the claim for a wife's neces-
saries involves two elements : articles furnished must be of the
suitable class, such as food, dress, or medical attendance ; and,
furthermore, of that class the wife must be destitute of such
supply as befits her condition and the means and station of her
husband. Hence a blending of law and fact ; and hence, more-
over, much confusion in laying down the rules, though a
tradesman has not always to inquire strictly. Where one has
supplied the wife with articles, some of which are necessaries
and some are not, some of which were rightly furnished her
and some of which were not, he can yet recover for the neces-
saries, or for what he rightly furnished.^ But on the other
hand, one cannot furnish articles which were not necessaries
and not suitable, and recover a fraction of their value on the
plea that tbey might have answered the purpose of other arti-
cles which would have been necessaries.^
§ 72. Wife's General Agency for her Husband. — The wife
may bind her husband for other contracts than those for neces-
saries, where an agency in the premises, express or implied,
can be shown. The natural incapacities of her sex superadded
^ Daubney v. Hughes, GO N. Y. wife's own claims, raising funds, &c.,
187. see Scliouler, Hns. & Wife, § 125.
2 Burkett r. Trowbridge, 61 Me. 251; 3 Eames v. Sweetser, 101 Mass. 78;
Daubney v. Huglies, GO N. Y. 187; Roberts y. Kelley, 51 Vt. 97.
Schouler, Hus. & Wife, § 124. As to * Thorpe v. Shapleigh, 67 Me. 235.
8 113
§ 72 THE DOMESTIC RELATIONS. [PART 11.
to those of the marriage state ; the practical difficulties which
persons dealing through such an agent must encounter, par-
ticularly where they find she has exceeded her authority, and
yet cannot hold her liable in person ; her own exposure to fraud,
deceit, and coercion, — all these combine to render the wife an
undesirable business representative ; and cases of this sort come
rarely before the courts. But the wife may be delegated an
attorney, even under a sealed instrument.^ And on principle
there is little reason to doubt her capacity to bind her husband
in all general transactions where he has given an express au-
thority. So, too, her agency may be inferred from his acts and
conduct respecting her ; and the general rule applies that such
agency is to be measured by the scope of the usual employ-
ment.^ It is by virtue of such an extended agency that we find
a married woman enabled frequently to pledge her husband's
credit beyond all ordinary rules as to a wife's necessaries. The
usual cases in which a wife binds the husband on contracts not
for necessaries may be reduced to two classes : the one where
the nature of his employment is such that the wife is expected
to share in it ; the other where he is absent from home and some
one must carry on the household and small business matters.^
Thus, it is held that where a husband permits his wife to
carry on a certain business in his name, and to draw in his
name checks and notes to be used in the course of the business,
she cannot make him liable as surety for loans to third persons,
or upon accommodation paper, merely because of such an
agency.'* And where her agency extends only to the perform-
ance of certain specific acts of a general transaction, she cannot
bind him by her acts and admissions respecting other matters
connected with the general transaction.^ A wife is fairly the
husband's implied agent for engaging the usual menial servants.^
1 Goodwin v. Kelly, 42 Barb. 194. ^ g^g ^liis doctrine discussed at
2 Co.x V. Hoffhian, 4 Dev. & Batt. length, with citation of cases, in Schou-
180; Mackinley v. McGregor, 3 Whart. ler, Hus. & Wife, §§ 127-130.
3()9; Camelin ;;. Palmer Go., 10 Allen, ■* Gulick v. Grover, 2 Vroom, 182;
5:19 ; T^uddock v. Marsh, 38 E. L. & Eq. 4 Vroom, 463.
515; Pickering i\ Pickering, 6 N. H. & Goodrich v. Tracy, 43 Vt. 314.
124; Gray v. Otis, 11 Vt. G28; Miller ^ Wagner i'. Nagel, 33 Minn. 348.
V. Delaniater, 12 Wend. 433; Mickel-
berry v. Harvey, 58 Ind. 523.
114
CHAP. III.] wife's debts AND CONTRACTS. § 72
The husband may, by suitable conduct, make his wife his agent
for receiving settlement of claims due him while absent ; ^ or
for employing legal assistance as incidental to managing his
affairs.^ The wife may be her husband's agent as to his real
estate, not only for the purpose of collecting rents and making
small repairs, but in the more important transactions. But as
deeds and written instruments are here commonly requisite,
and formalities must be followed, little can be left to inference.
Such authority presupposes usually a husband's long absence.
Thus the management of a farm in a husband's absence, with
the care of the stock, is not unfrequently entrusted to the wife.^
It is not to be presumed that a wife can revoke her husband's
license on his premises, given to a third person,* nor grant an
irrevocable license thereon.^ The wife may represent her hus-
band, not only in the general management of his own lands, so
as to bind him, but, under certain circumstances, with reference
to her real estate in which he has the usual marital rights, or
lands owned partly by her and partly by him.^ But a wife is
not, simply because she is a wife, authorized by implication to
sell or dispose of her husband's general personalty, although it
might consist of a sewing-machine or a piano such as she her-
self used exclusively."
Eatification by the husband is not essential where the scope
of the wife's agency was sufficient without it ; ^ but it cures acts
of doubtful authority. The wife's sale or gift of her husband's
personal property, even without authority, or her purchase on
his behalf, may be confirmed by his subsequent acts amounting
to ratification ; and one mode of ratification is to accept know-
ingly the benefits of her transaction.^ Acts done by the wife
1 Stall V. Meek, 70 Penn. St. 181. 8 See McAfee v. Robertson, 41 Tex.
See Meader v. Page, 39 Vt. 306. 855.
2 Buford V. Speed, 11 Busli, 338. 9 nunnahoe v. Williams, 24 Ark.
3 Ciiunot V. Larson, 43 Wis. 536 ; 264 ; Mickelberry v. Harvey, 58 Ind.
McAfee v. Robertson, 41 Tex. 355. 523; Pike v. Baker, 53 III. 168; Shaw
* Kellogg V. Robinson, 32 Conn. 335. v. Emery, 38 Me. 484 ; supra, § 04.
5 Nelson v. Garey, 114 Mass. 418. Even a trifling gift from tlie wife by
8 Cheney v. Pierce, 38 Vt. 515; way of charity has been upheld, though
Dresel v. Jordan, 104 Mass. 407. without the husband's permission.
" Wheeler Man. Co. v. Morgan, 29 Spencer v. Storrs, 38 Vt. 156.
Kan. 519.
115
§ 74 THE DOMESTIC EELATIONS. [PART II.
in relation to her husband's property without authority should
of course be promptly disavowed by him within a reasonable
time, if he wishes to escape responsibility.^ Nor can a husband
stand by and see his wife use the proceeds of a sale of his
property sold by her with his knowledge, and afterwards re-
claim the property.^
§ 73. Effect of Meirriage of Debtor and Creditor. — A debt or
obligation due a woman is extinguished, not suspended, at
common law, by her marriage with the debtor or obligor, and
she cannot recover the same against him or his estate after the
relation is ended.^ So, too, where the woman is debtor and
marries the creditor, the debt against her is discharged. These
doctrines are subject to the exception that this must not affect
the rights of third parties.^
CHAPTER IV.
EFFECT OF COVERTUEE UPON THE WIFE'S INJURIES AND
FRAUDS.
§ 74. General Principle Stated. — Frauds and injuries may
have been committed by the wife ; or they may have been
committed upon the wife. Again, they may have been com-
mitted before coverture ; or they may have been committed
during coverture. Once more, they may have reference to the
person ; constituting a bodily injury, such as assault and bat-
tery, or an injury to the character, such as slander ; or they
may have reference to property. But in any event, so far as the
fraud or injury is made the subject of a civil suit, the general
principle of the wife's disability remains the same ; namely,
that the husband compensates or receives the compensation.
1 Hill V. Sewald, 53 Penn. St. 271. of such a debt, or its evidence before
2 Delano v. Blanchard, 52 Vt. 578 ; niarriaffe, cf. Guptil v. Home, 63 Me.
Huff V. Price, 50 Mo. 228. 405 ; Long v. Kinney, 49 Ind. 2:^5.
3 Smiley v. Smiley, 18 Ohio St. 543. And see Price v. Price. L. 11. 11 Ch. D.
* As to indorsement or assignment 163.
116
CHAP. IV.] wife's injuries AND FRAUDS. § 75
§ 75. Torts by the Wife ; Husband and Wife sued together, or
Husband alone ; Presumption of Coercion, &o. — We have seen
that one spouse is not criminally answerable for the other.^
But as to private wrongs or torts, the general rule of law is
that the husband is liable for the frauds and injuries of the
wife, whether committed before or during coverture ; if com-
mitted under his coercion or by him alone, he, and he alone, is
liable; otherwise, both are, for the time being, liable.^ Where
the fraud or injury is committed in his company and by his
order, coercion is presumed, and the husband becomes, prima
facie, the only wrong-doer ; and where committed without his
order and in his absence, the wife is in reality the offending
party, while the husband has become responsible for her acts
by reason of her coverture. In the latter class of cases the
husband is properly joined ^\\t\\ his wife in the suit ; for, if the
wife alone were sued, his property might be seized without
giving him an opportunity for defence ; and if the husband
alone were sued, he would become chargeable absolutely. In
the former class of cases the husband should be sued alone.^
Where the tort is committed by both spouses, and the wife
does not act by coercion, both husband and wife may be jointly
sued."*
This presumption of coercion, too, is much the same in civil
as in criminal offences.^ It is said by Chancellor Kent that a
1 S«;5ra, §49. Holtz v. Dick, 42 Oliio St. 23. And
• 2 Kent, Com. 149; Bing. Inf. 256, see, as to the option given by English
257 ; Angel v. Felton, 8 Johns. 149 ; statute of 1882, Seroka v. Kattenburg,
Gage V Reed, 15 111. 403; Carl v. Won- 17 Q. B. I). 177. The present poHcy
der, 5 Watts, 97 ; Whitman v. Delano, in various States is to exempt the hus-
6 N. H. 543; Gray v. Tliacker, 4 Ala. band for his wife's tort where he was
136; McKeown y. Johnson, 1 McCord, not present and did not participate. 32
578 ; Benjamin v. Bartlett, 3 Miss. 86 ; Kan. 409. As to liability under the New
Wright V. Kerr, Addis. 13; Cassin v. York civil damage act, wliere liquors
Delany, 38 N. Y. 178; Ball v. Bennett, are sold by the husband in a building
21 Ind. 427 ; Marshall r. Oakes, 51 Me. owned by the wife, see 87 N. Y. 493.
308; Clark v. Bayer, 32 Ohio St. 299 ; =* Park v. Hopkins, 2 Bailey, 411;
44 Ark. 401. Matthews v. Fiestel, 2 E. D. Sn)ith, 90 ;
As to modern statutory changes in Jackson v. Kirby, 37 Vt. 448 ; 58 Vt. 323.
this doctrine, see § 170 n. A statute * 12 Mod. 246; Vine o. Saunders, 5
will not be deemed to exempt a bus- Scott, 3.59 ; Marshall v. Oakes, 51 Me.
band from the common-law liability 308 ; Gray, C. J., in Handy v. Foley,
for his wife's torts unless it is explicit. 121 Mass. 259.
Quick V. Miller, 103 Penn. St. 67 ; ° Supra, § 50.
117
§ 75 THE DOMESTIC RELATIONS. [PART II.
wrong committed by the wife "in company with " her husband,
or " by his order," renders the husband alone liable ; but this
statement is too general, and should be limited to the case of
her acting by his coercion.^ It is said that the privilege of
presumptive coercion extends to no other person than a wife,
not even to a servant.^ The presence of the husband and his
direction should usually be concurrent, in order to amount to
coercion ; and the presumption of a wife's coercion in a tort is,
of course, not conclusive, but may be controlled by evidence of
the facts.^
As to private wrongs the question occurs, why should the
husband be made to stand in the wife's place where the offence
is considered against an individual, any more than when it is
between herself and the State ? This seems to be the true
answer, as in case of her debts diim sola ; namely, that the
husband adopts her and her circumstances together; that he
takes her fortune, if she has one, and assumes all possible
liabilities therefrom.
This statement suggests that the husband's liability is after
all a limited one, where he, in the first instance, was free from
wrong ; that is to say, that the death of the wife before the
recovery of damages puts an end to his liability altogether.
This is correct, not only on the principle announced in the case
of the wife's debts dam sola, but because wrongs, being personal,
die with the person, which last is the common explanation of
this rule. If the husband dies before damages are recovered in
the suit, the wife alone remains liable.^ So it would seem that
the common law recognizes a liability on her part which con-
tinues through the marriage relation ; coverture operating, how-
ever, so as to suspend the remedy against the married woman,
and to bring in as a joint party the custodian of her fortune.^
1 Gray, C. J., in Handy v. Foley, Bayer, .32 Ohio St. 299 ; Ferguson v.
121 Mass. 259; 2 Kent, Com. 149. Brooks, 67 Me. 251.
2 Reeve, Dom. Rel. 72; Barnes v. * 2 Bright, Hus. & Wife, 22 n. ; and
Harris, Busbee, 15; Griffin v. Reynolds, see Stroop v. Swarts, 12 S. & U. 76.
17 How. (U. S.) 609. 5 Henoe husband and wife are sued
3 Cassin v. Delany, 38 N. Y. 178; together for the libel or slander of the
Ferguson ;•. Brooks, 67 Me. 251 ; supra, wife. McElfresh i'. Kirkendall, .36 Iowa,
§ 50. Coercion, if relied upon, should 224. Exen)])Iary damages may be al-
be set up in difenoe. See Clark v. lowed in such action. Fowler v. Chi-
118
CHAP. IV.] wife's injuries AND FRAUDS. § 76
§ 76. Torts by Wife -which are based on Contract, &c. — There
are, however, not only ioi'ts simplicitcr, or simple wrongs at law,
but wrongs where the vsubstantive basis of the fraud is the wife's
contract. The common law has been supposed to apply with
the same force in both cases, partly because in the latter in-
stance the person injured would be otherwise without a remedy.^ *
But some modern cases rule that though the husband is liable,
for the wife's general frauds, yet when the fraud is directly!
connected with her contract, and is the means of effecting it,
and part and parcel of the same transaction, the wife cannot be
responsible, nor can the husband be sued for the fraud together
with the wife.'-^
Tliere are, however, cases \\here the wife will bind her hus-
band by her fraudulent representations on the ground of her
agency.'^ And where, on the other hand, the husband and wife
were sued by one who had been induced by the false represen-
tations of the husband to buy the wife's land, the action w^as
lately held maintainable against both wife and husband, though
the wife was innocent of the fraud, on the theory that the
husband made the false statements as her agent and that she
received and retained the fruits of the fraud.* Where the hus-
cliester, 25 Ohio St. 9. And generally add tliat he may compromise without
for forfeitures under a penal statute his wife's assent. Coolidge v. Parris,
where she participated. Austin v. Wil- 8 Ohio St. 594.
son, 4 Cush. 273; McQueen y.Fulgham, i Macq. Hus. & Wife, 130, 131;
27 Tex. 463 ; Baker v. Young, 44 111. Head v. Briscoe, 5 Car. & V. 484, per
42; Enders v. Beck, 18 Iowa, 86. As Tindal, C. J.; Reeve, Dora. Rel. 72,
to suits to recover penalties for usury, 73.
see Jackson v. Kirby, .37 Vt. 448 ; ^ Liverpool Adelphi Loan Associa-
Porter v. Mount, 43 Barb. 422. So, tion r. Fairhurst, 9 Exch. 422.
too, for assault and battery. Griffin ?-. ^ Taylor v. Green, 8 Car. & P. .316 ;
Reynolds, 17 How. (U. S ) 609 ; Road- Schouler, Hus. & Wife, § 136. A lius-
cap V. Sipe, 6 Gratt. 213 ; Schouler, band is liable in replevin for his wife's
Hus. & Wife, § 137. Or for the forci- unlawful detention of another's chat-
ble removal of a gate. Handy i-. Foley, tels under claim of title in herself.
121 Mass. 2.59. Tlie fact that the hus- Choen v. Porter, 66 Ind. 194. But
band is made responsible by the fact where there is no collusion apparent,
of coverture, and did not commit the a husband will not be committed for
wrong in person, cannot go in mitiga- his wife's breach of injunction. Hope
tion of damages. Austin v. Wilson, v. Carnegie, L. R. 7 Eq. 254. For
4 Cush. 273 ; .58 Vt. 558. statutory changes as to torts and frauds
The husband has full management of the wife, see § 170 n.
of the defence. And we need hardly * Krumm v. Beach, 96 N. Y. 398.
119
§ 77 THE DOMESTIC RELATIONS. [PAET II.
band administers some trust on the part and in the right of his
wife, he is liable in equity for losses occasioned by her breaches
of trust, whether arising from her negligence or her active
misconduct.^
§ 77. Torts committed upon the Wife. — So far as the hus-
band is injured, his right of action is sole ; but where the wife
is the meritorious cause of action, the spouses join as plaintiffs.
(For injuries to the person or character of the wife, therefore,
the husband and wife at the common law should sue together.^
But where the right of action for damages is founded on the
prior possession of personal property, the husband must, at
common law, sue alone, since his possession is the possession
of both.2 And the joinder of the wife in actions relating to
personal property, where the injury was committed after mar-
riage, is good ground of demurrer, or motion to arrest, or even
of error after judgment.* Whether the same principle applies
to property of the wife parted with before marriage is not so
clear. This is the rule, however, when the action is for a wrong,
which before the marriage was committed in respect to such
property.^ But where the trover is laid before the marriage,
and the conversion afterwards, there has been some controversy,
the result of which seems to be that the action is well brought,
either witli or without joining the wife, though the better course
doubtless is to join the wife.^ The principle sought is whether
such a suit amounts to a disaffirmance of the husband's con-
structive title to the goods on the marriage.'^
1 Bahin v. Hughes, 31 Ch. D. 390. Milnes, 3 T. R. 627 ; Fewell v. Collins,
2 Bing. Inf. & Cov. 247, Am. ed., 1 Const. 207. Cf. 61 Tex. 638.
and cases cited. Whether in such ^ Towes v. Marshall, 1 Sid. 172;
suits it is a fatal error for the declara- Ayling v. Whicher, 6 Ad. & El. 259 ;
tion to conclude to the damage of the Blackborne v. Haigli, 2 Lev. 107 ; 3
" plaintiff " instead of " plaintiffs," see Rob. Pract. supra. There is some un-
57 Md 121. A married woman cannot certainty on this point, however See
sue alone for assault upon her, simply Bac. Abr. Baron & Feme, K. ; contra,
on the ground that her husband lives Brown v. Fifield, 4 Mich. 322; Well-
apart from her and refuses to join in born v. Weaver, 17 Ga. 267.
the suit. 60 Tex. 331. See § 219. '' As to injuries to tlie wife's real
3 Bing. Inf. and Cov. 253, and cases estate, see infra, ch. 6. On these prin-
cited; Cro. Eliz. 133; 1 Chit. PI. 93; ciples it is held that husband and wife
1 Salk. 114. must sue togetlier for libel or slander-
* Rawlins v. Rounds, 27 Vt. 17. ous words spoken against the latter.
6 3 Rob. Pract. 188 ; Milner v. Smalley v. Anderson, 2 Monr. 56 ;
120
CHAP. IV.] wife's injuries AND FRAUDS.
§T7
The damages allowed as compensation for the frauds and
injuries sustained by the wife go to the husband, as well as the
rest of her personal property, if recovered during his lifetime.
But such suits survive to her where she is the meritorious cause
of action ; and on the death of the husband, pending legal pro-
ceedings, the wife may accordingly proceed to judgment and
collect the damages for herself ; or if her husband had never
brought an action, she may then do so in her own right.^ The
husband, on the other hand, has no such interest in the suit at
common law that he may prosecute it in his own name after
his wife's death. His joinder in the first place was only because
Davies v. Solomon, L. R. 7 Q. B. 112;
Throgniorton v. Davis, 3 Blackf. 383.
These words must be actionable per se.
See Beach v. Ranney, 2 Hill, 309;
Saville v. Sweeney, 4 B. & Ad. 514;
Ryan v. Madden, 12 Vt. 51. As to
slander of wife charging her with
" adultery," see Shafer v. Ahalt, 48
Md. 171. Special damage should be
shown in order to sustain the action.
lb. ; Allsop V. Ailsop, 2 L. T. n. s. 290.
Words charging her, while unmarried,
with fornication, are actionable. Gib-
son V. Gibson, 43 Wis. 23. Also for
battery of the wife. Pillow v. Bushnell,
5 Barb. 156. Also for injuries sustained
by her through the negligence of a
common carrier. Heirn v. McCaughan,
32 Miss. 17. Also for the malpractice
of a physician, even though it after-
wards cause her death. Cross v. Gutli-
ery, 2 Root, 90; Hyatt v. Adams, 1(3
Mich. 180. Also for frauds upon the
wife, as in case of an action qui tam to
recover penalties for a fraudulent con-
veyance. Fowler v. Frisbie, 3 Conn.
320. But see Crump v. McKay, 8 Jones,
32, as to negligence " sounding in con-
tract," not admitted to be cause of
action. Also for malicious prosecution.
Laughlin v. Eaton, 54 Me. 156. And
the rule is the same in all these cases,
whether tlie fraud or injury was com-
mitted before or during coverture. But
if the wife be a privy to the wrong, or
knowingly suffer an injury to be com-
mitted upon her, the husband cannot
maintain his action ; for his right to
damages cannot be greater than hers
would have been had she remained
single. Pillow v. Bushnell, 5 Barb.
156. Nor can an action be maintained
where the husband instigates the
wrong. Tibbs v. Brown, 2 Grant's
Cases, 30. Nor in slander wliere the
words are not actionable, though the
wife become ill in consequence of the
slander. Wilson v. Goit, 17 N. Y. 442.
In a joint action for personal wrong to
the wife, the declaration should con-
clude " to their damage." Horton v.
Byles, 1 Sid. 387 ; Smalley v. Anderson,
2 Monr. 56. And it is a well-recog-
nized principle, both in England and
America, that whenever the wife is
the meritorious cause of action, her
interest must appear on tlie face of the
pleadings, or the omission will be con-
sidered fatal. Staley v. Barhite, 2
Caines, 221 ; Serres v. Dodd, 5 B. & P.
405; Thome v. Dillingham, 1 Denio,
254 ; Pickering r. De Rochemont, 45
N. H. 67. Cf. 57 Md. 121.
Where the tort was committed be-
fore the woman was married, the action,
if she marries afterwards, should be
brought by husband and wife ; or if she
marries pending the action, the hus-
band is entitled to be admitted as a
plaintiff. Gibson v. Gibson, 43 Wis.
23.
1 Bing. Inf. & Cov. 247, 248; New-
ton V. Hatter, 2 Ld. Raym. 1208 ; An-
derson V. Anderson, 11 Bush, 327.
121
§ 77 THE DOMESTIC RELATIONS. [PART II.
of the marriage relation. He may, however, under some stat-
utes, be let in as her administrator, and in such capacity prose-
cute the suit to its conclusion.^ If the wife dies after judgment,
the husband surviving may take the benefits of the suit ; for a
judgment debt takes the place of the original cause of action.
The death of the wife, pending suit for her personal tort, put
an end to the action altogether by the old law.^ But where the
so-called tort was referable rather to some breach of contract, it
might survive.^
Since the husband is at the common law entitled to the
society and services of his wife, two separate causes of action
may arise from injuries inflicted upon her person. One, in the
name of both for her own injuries, we have just considered ; the
other is in the name of the husband alone per quod consortium
amisit^ Thus, if the wife be wantonly bruised and maltreated,
her husband may bring his special action per quod for the loss
of her society and for his medical expenses. But there can be
no special damage recovered by the husband by way of aggra-
vation in the joint suit for his wife's injuries, which is founded
in her meritorious claim. Thus, in the joint action for an as-
sault on the wife, the surgeon's bill cannot be recovered ; if for
slander of the wife, the loss of wages cannot be claimed ; there
the sole right of the husband should be sued on in his name.^
Nor, on the other hand, can the husband recover for the wife's
mental anguish or other damages incidental to the joint suit in
his sole suit for damages.^ It would appear that the husband
may release the damages for his wife's injuries, and then recover
for the loss arising to himself alone ; he may certainly release
or compromise.'^ Where the husband is alone entitled to the
1 Chitty, PI. 74; Norcross v. Stuart, Whitcomb v. Barre, 37 Vt. 148; Ka-
50 Me. 87; Pattee v. Harrington, 11 vanaugh v. Janesville, 24 Wis 618;
Pick. 221 ; Crozicr v. Bryant, 4 Bil)b, Hooper v. Haskell, 56 Me. 251.
174; Saltmarsh v. Candia, 51 N. H. 71. 5 Dengate v. Gardiner, 4 M. & W. 6;
2 Bac. Abr. Baron & Feme (K.) ; Kavanaugh r. Janesville, 24 Wis. (:)18 ;
Meese v. Fond du Lac, 48 Wis. 323. King i'. Thompson, 87 Penn. St. 365.
3 Long V. Morrison, 14 Ind. 595. See Lewis v. Babcock, 18 Johns. 443.
* 3 Bl. Com. 140; Cro. Jac. 501 ; lb. 6 Hooper v. Haskell, 56 Me. 251.
538; Mewhirter v. Hatton, 42 Iowa, ^ Southworth t^. Packard, 7 Mass.
288; Brockbank v. Wliitehaven June- 95; Anderson v. Anderson, 11 Bush,
lion K. R. Co., 7 Hurl. & Nor. 834; 327.
122
CHAP. IV.] wife's injuries and frauds. § 78
damages, and in case of his death they would go to his repre-
sentatives, he must sue alone ; and his sole suit will not be
defeated by his wife's death before action brought.^
Of the suits which the husband may bring for loss of his
wife's society, that for enticing a wife away has already been
considered.^ Somewhat akin to this is his action for his wife's
seduction, founded on the same general marital rights. But
the common law still keeps up its legal fiction of the wife's
civil incapacity, and treats the seducer as guilty of trespass by
force of arms, whether the wife actually consent to the guilt or
not.^ A husband who lives apart from his wife, under articles
of separation or a decree of divorce from bed and board, cannot
maintain a suit for damages per quod, since he has suffered no
loss of her society.'* Nor does an action lie for enticing one's
wife and so reviling the marriage while she was detained that
she languished and died ; and for refusing to let the husband
attend the funeral, of which the enticer had charge.^ The wife
was never permitted to sue for the loss of her husband's society
and services,^ though on general principle it is hard to see why,
save for her coverture, she should not have been.
§ 78. Torts upon the Wife ; Instantaneous Death ; Statutes. — •
Instantaneous death of the husband or wife, at the common
law, gave no right of action to the survivor. Nor could the
husband, whose wife was thus killed by another's carelessness,
sue per quod, because he could not be said to have lost her
society during any portion of her life.'^ A wife, of course, could
1 Wheeling v. Trowbridge, 5 W. Va. in general be maintained by the wife,
35.3. there being no misfeasance towards
2 Supra, § 41. As to this seduction her, independently of a contract with
suit, see Schouler, Hus. & Wife, § 140. the husband alone. Longmeid v. HoUi-
3 3 Bl. Com. 139, 140. An action day, 6 Exch. 761. Cf. § 41 ; 26 Fed. R.
on the case is allowable, though not 13.
usual. Chamberlain v. Hazlewood, 5 ^ Yelv. 89, 90 ; Baker v. Bolton, 1
M. &W. 517. Supra, ^41. Camp. 493; Green v. Hudson R. R.
* Schouler, Hus & Wife, § 140; Fry Co., 28 Barb. 9; Hallenbeck v. Berk-
V. Derstler, 2 Yeates, 278 ; Ballard v. shire R. R. Co., 9 Cusli. 109. See
Russell, 36 Me. 196; Burger v. Bels- Georgia R. R. Co. v. Wynn, 42 Geo.
ley, 45 111. 72. 331, wliich considers a statute provid-
^ Neilson i'. Brown, 13 R. I. 651. ing only for a wife's suit by reason of
*• 2 Kent, Com. 182 ; Tuttle v. Chi- her husband's death, by railroad acci-
cago R., 42 Iowa. 518 ; Carey i\ Berk- dent, and not for a husband's suit by
shire R., 1 Cush. 475. An action cannot reason of his wifes death.
123
§79
THE DOMESTIC KELATIONS.
[part II.
not sue for the death of her husband. ^ Where the wife dies in
consequence of one's carelessness, as in case of malpractice, the
husband may recover damages for the injury accruing to him-
self before, but not for the injury in consequence of, the death. ^
Modern legislation has supplied many new remedies much
needed in these classes of cases, particularly with reference to
injuries and loss of life occasioned through the carelessness of
railroad companies and other common carriers. ^
§ 79. Torts upon the Wife ; Miscellaneous Points. — It should
be observed that, wherever husband and wife are both injured,
they have two distinct and separate causes of action, which
must not be confounded. Thus, for libel against husband and
wife, the husband must sue alone for the libel against him, and
husband and wife jointly for the libel against her ; they cannot
sue together for the libel against both.* And so is it in suits
for personal injury to both.^ But actions are sometimes con-
solidated in practice.^
1 2 Kent, Com. 182 ; Carey v. Berk-
shire R., 1 Cusli. 475.
2 Hyatt V. Adams, 16 Mich. 180;
Long 1-. Morrison. 14 Ind. 595.
3 Dickens v. N. Y. Central R. R. Co.,
28 Barb. 41 ; Stat. 9 & 10 Vict. c. 93 ;
Mass. Gen. Stats, c. 63, §97. And
wherever by special statute some riglit
of action for damages is given (as
against a town for a defective high-
way), some of our courts seem disposed
to allow the husband's medical ex-
penses by way of aggravation, in the
joint suit of husband and wife, even
though he may not be empowered to
bring a suit in his own name to recover
for them as damages per quod. Har-
wood V. Lowell, 4 Cush. 310 ; Sanford
V. Augusta, 32 Me. 536 ; Hunt v. Win-
field, 36 Wis. 154; Fuller v. Naugatuck
R. R. Co., 21 Conn. 557. See Carlisle
V. Town of Sheldon, 38 Vt. 440. In
some of these statutory cases, however,
the husband may bring his separate
suit per (juod as before, in addition to
the suit for the wife's injury. Klein v.
Jewett, 26 N. J. Eq. 474 ; Kavanaugh
124
I'. Janesville, 24 Wis. 618 ; Whitcomb
V. Barre, 87 Vt. 148.
Where husband and wife were in-
jured simultaneouslj', and both died,
the husband a little before the wife,
it was held tliat the riglit of action
vested absolutely in the wife. Waldo
V. Goodsell, 83 Conn. 462. Where the
action is brought in assumpsit, as upon
a carrier's contract to carry safely, the
considerations are those of contract,
not tort. See Pollard v. New Jersey
R., 101 U. S. Supr. 223. Recovery by
the administrator for personal injury
caused by the wife's death enures to
the benefit of the surviving husband
under some State codes. 8 Lea, 96.
* Gazynski v. Colburn, 11 Cush. 10;
Ebersoll v. King, 3 Binn. 555; Newton
V. Hatter, 2 Ld. Raym. 1208. For statu-
tory changes as to injuries sustained
by the wife, see § 170 n. ; 13 Q. B. D.
784.
s Northern Central R. v. Mills, 61
Md. 355; Matthew v. Central Pacific
R., 63 Cal. 450.
6 Hemstead v. Gas Light Co., 3 Hurl.
& C. 746.
CHAP, v.] wife's personal peoperty. § 80
We may notice, finally, one important distinction made be-
tween the wife's general contracts and her frauds and injuries.
In the one case the man is held liable to third parties for her
acts as agent, even though never married to her ; ^ and simple
cohabitation is sufficient to charge him. But simple cohabita-
tion will not be enough to make him responsible for her civil
injuries. Marriage in fact is essential. And this latter prin-
ciple applies likewise where he seeks indemnity for her injuries.^
The facility with which an agency is created at law may serve
to explain the difference between the two cases.
CHAPTER V.
EFFECT OF COVERTUKE UPON THE WIFE'S PERSONAL PROPERTY.
§ 80. Wife's Personal Property in General ; Marriage a Gift to
the Husband. — Personal property comprises things in posses-
sion, or goods and effects, such as money, furniture, and farm
stock, which one holds as the property itself, and things in
action, such as bonds and other outstanding debts.^ The hus-
band's title to his wife's personal property at the common law
is either absolute or qualified, according as the particular prop-
erty belongs to the one class or the other. We shall therefore,
in this chapter, treat of, first, the wife's things or personal prop-
erty in possession ; second, her things or personals in action.
But in general it may be premised that the wife's personal
property goes to the husband, whether belonging to her at the
time of marriage, or acquired afterwards by gift, bequest, or
purchase ; whether actually or beneficially possessed ; whether
principal fund or income. So her earnings belong to her hus-
1 Supra, § 71. " things in possession " and " things in
2 Overholt v. Ellswell, 1 Ashm. 200. action " are noticed at length, and
See Norwood v. Stevenson, Andr. 227. where reasons are stated why the terms
* 2 Bl. Com. 389, 396 ; 2 Kent, Com. "corporeal" and "incorporeal" per-
351. See 1 Schouler, Pers. Prop. 32-37, sonal property should be preferred at
where the leading distinctions between this day.
125
§ 81 THE DOMESTIC RELATIONS. [PART U.
band. Marriage, therefore, operates in this respect as a gift to
the husband ; and while the gift is only qualified, so far as
things in action are concerned, it lies in his power to make the
gift absolute during coverture.^
This privilege of the husband lasts as long as the marriage
relation continues, even though he be living apart from his wife
in adultery, and she acquire the property by her own labor ^ or
by bequest.^ Neither divorce from bed and board, nor separa-
tion, takes away his right.^ But divorce from the bonds of
matrimony, or the death of either party, puts an end to the gifts
of coverture, leaving open the adjustment of the rights of the
respective parties with one another, or between the survivor
and the representatives of the deceased, on other principles to
be hereafter explained.
And it is a matter of course that the wife's property should
be hers in her own right, in order that the husband's title may
attach. For property may come to her with restrictions upon
the husband's rights, such as the giver has seen fit to impose.^
Her paraphernalia follow a rule somewhat peculiar.^ And, as
we shall see in later chapters, much of the common law bearing
upon this subject is practically superseded by the law of the
wife's separate property.
§ 81. Earnings of Wife vest in Husband. — Earnings of the
wife belong to the husband. The rule of the common law is
that he takes all the benefits of her industry.^ This rule applies
to money earned, and to other produce of the wife's earnings.^
He alone can give a discharge for any demand which may arise
from her services. He may of course constitute her his agent
for receiving the pay to herself ; but, without evidence of some
1 1 Bright, Hus. & Wife, .34, 35; Me. 305; 1 Roll. Abr. 343. But see
Co. Litt. 805 a, 3516,- 2 Kent, Com. Divorce, iVm, c. 17.
I.IO, &c. ; Campbell v. Galbreath, 12 5 Qo. Litt. .351 ; 11 Mod. 178.
Bush, 4.59. ^ See post, cs. 15, 16, as to rights
2 Russell V. Brooks, 7 Pick. Q%^ Tur- upon death of a spouse.
tie I'. Muncy, 2 J. J. Marsh. 82 ; Arm- " Macq. IIus. & Wife, 44, 45; 88
strong V. Armstrong, .32 Miss. 279. N. C. 463 ; Gorman v. Wood, 73 Ga.
3 Vreeland v. Ryno, 26 N. J. Eq. 370; McDavid v. Adams, 77 111. 155;
160. Yopst V. Yopst, 61 Ind. 61.
* Glover r. Proprietors of Drnry * Bucher v. Ream, 68 Penn. St. 421 ;
Lane, 2 Chitty, 117 ; Wasliburn r. Hale, Hawkins v. Providence R., 119 Mass.
10 Pick. 429; Prescott v. Brown, 23 596.
12G
CHAP, v.] wife's personal PROPERTY. § 82
such authority, tlie person who employs her, as a nurse for in-
stance, cannot protect himself by showing her separate receipts.^
For these earnings the husband sues alone, and in his own
name.2 He may consent that they be her own, but that right
rests upon his consent, and raises other questions to be consid-
ered hereafter ; ^ nor can that consent be exercised in disregard
of his existing creditors.* It follows that the proceeds of the
joint labor of husband and wife belong at common law to the
husband, as where, for instance, they raise cotton together ; ^ and
that an action by a husband in his own name, for his own ser-
vices and his wife's, rendered under the same contract, is well
brought.*"
§ 82. "Wife's Personal Property in Possession. — Now, to take
the broad division of the common law as applied to all the wife's
personal property. First, as to the wife's chores or personals in
possession, or corporeal personal property. To these the hus-
band's right at common law is immediate and absolute. He
may dispose of them as he sees fit during his life, whether with
or without his wife's consent ; he may bequeath them by will ;
and after his death such property is regarded as assets of his
estate, the title passing to his executors and administrators, to
the exclusion of the wife, though she survive him.''
If the wife's interest in personal property be that of a tenant
in common, the husband becomes a tenant in common in her
1 Offley ?•. Clay, 2 Man. & Gr. 172; 367; Postnuptial Settlements, post, c.
and see Glover r. Drury Lane, 2 Chitty, 14; Glaze i'. Blake, 56 Ala. 379.
117; Russell v. Brooks, 7 Pick. 65. s Bowden c. Gray, 49 Miss 547. Cf.
But see Starrett r. Wynn, 17 S. & R. as to modern legislative chanties, § 162.
130. « Harrington v. Gies, 45 Mich. 374.
•^ Gould V. Carlton, 55 Me. 511; " Co. Litt. 300, 35U>; 2 Kent, Com.
McDavid v. Adams, 77 111. 155. 143 ; Legg v. Legg, 8 Mass. 99; Lam-
^ See /JOS/, c. 12, as to wife's power phir r. Creed, 8 Ves. 599; Winslow v.
to trade, &c. If a husband renounces Crocker, 17 Me. 29 ; Bing. Inf. & Cov.
to his wife his right to her earnings, he 208, cases cited by Am. ed. ; Hoskins
may revoke that renunciation before v. Miller, 2 Dev. .360 ; Hyde v. Stone,
the gift is consummated. Boyett v. 9 Cow. 230 ; Morgan v. Thames Bank,
Porter, 80 Ala. 476. And 81 Ala. 489, 14 Conn. 99 ; Hawkins v. Craig, 6
549, is to the effect that the husband Monr. 2-57; Caffee r. Kelly, 1 Busb. 48 ;
cannot invest such earnings for her ben- Skillman )•. Skillman, 2 Beasley, 403 ;
efit to the prejudice of his own credi- Hopkins v. Care3\ 23 Miss. 54 ; Crop-
tors. See c. 14, poM. sey v. McKinney, 30 Barb. 47 ; Carlcton
^ Cramer v. Redford, 2 C. E. Green, v. Loveioy, 54 Me. 445.
127
§ 82 THE DOMESTIC RELATIONS. [PART II.
stead. ^ So corporeal chattels of a female ward, in the hands of
her guardian, being legally hers at the time of marriage, become
her husband's, and his marital rights attach at once, notwith-
standing the guardian retains possession longer.^ The wife's
vested remainder in personal estate goes to the husband on ter-
mination of the particular estate ; and where both husband and
wife die during the continuance of the particular estate, the
husband's representatives, and not the wife's, are held to take
such remainder.^ But the husband cannot be considered a pur-
chaser by marriage for a valuable consideration against a legal
title admitted to be valid by his wife before marriage.*
Chattels bequeathed to the wife, without restriction, pass to
the husband at once like her other things in possession.^ So
all her movables, such as jewels, household goods, furniture, and
the like, also cash in her hands, go to him absolutely and at
once, whether owned by the wife at the time of marriage or
nominally vesting in her at some period of her coverture.
Whether money at her banker's follows this same principle
may depend upon a distinction first taken by Sir William Grant
in Carr v. Carr.^ He there says that a balance at a banker's
is a debt and not a deposit. But if the money were delivered
to the banker in a sealed bag, it would then be truly a dejjosi-
tum. It would then have what is called an ear-mark ; in other
words, it would be a specific chattel, and, as such, would vest
by the marriage in the husband as his absolute property.'^
Therefore, should the husband die without recovering such spe-
cific chattels or goods, they would belong to his representatives,
and not to the wife by right of survivorship.^ The true test of
1 Hopper V. McWhorter, 18 Ala. Crane v. Brice, 7 M. & W. 183 ; Rex v.
229. Frencli, R. & R. C. C. 491.
2 Sallee v. Arnold, 32 Mo. 532; 6 l Mer. 543, h.
Chambers v. Perry, 17 Ala. 726; Mc- ^ Per Sir William Grant in Carr v.
Daniel v. Wiiitnian, IG Ala. 343 ; Miller Carr, 1 Mer. 543 ; Hill ;;. Foley, 1 Phil.
V. Blackburn, 14 Ind. 62. And see 404. Money deposited with a banker
Davis's Appeal, 60 Penn. St. 118. in the usual way is money lent to the
3 Tune V. Cooper, 4 Sneed, 296. banker, with tlic obligation superadded
4 Willis V. Sneliing, 6 Rich. 280. that it be repaid when called for Pott
5 Shirley v. Shirley, 9 Paige, 363; y. Cleg, 11 Jur. 289 ; Schouler, Bailm.
Newlands i-. Paynter, 4 M. & C. 408 ; ^ Hawkins v. Providence R., 119
Mass. 596.
128
CHAP, v.] wife's personal PROPERTY. § 83
the husband's title is this : whether the personal property in
question was or was not technically a thing in possession.
As to the wife's personal apparel, the doctrine of parapher-
nalia will be found to reserve to her a needful right in the most
delicate instance where controversy can arise. Otherwise it
would appear that her apparel belongs to her husband at com-
mon law ; and he only can sue others for its loss.^ She cannot
sell or give her clothing aw^ay, probably, except by virtue of an
agency ; which agency, however, might be readily inferred from
circumstances. But the wife's reasonable clothing belongs to
the husband for the wife's use, like her victuals and other
necessaries, and he must not wantonly deprive her of it so as
to leave her destitute.^
§ 83. Wife's Personalty in Action. — Secondly. The hus-
band's right to his wife's incorporeal personal property — or at
least to her clioscs in action, as they are commonly called — is
qualified. Marriage operates, not as an absolute gift of such
property, but rather as a conditional gift, the condition being
that the husband shall do some act while coverture lasts, to
appropriate the chases to himself. If he happen to die before
he has done so, such choscs, not having been reduced to posses-
sion, remain the property of the wife, and his personal repre-
sentatives have no title in them.^ But this applies only to-
outstanding things in action ; for some may have been reduced
to possession by the husband during his lifetime, and some
may not. If the wife die before the husband has reduced
the chose to possession, he has no title in it as husband, but
it goes, strictly speaking, to her administrator or personal
, representative,^ though under our statutes the husband has
commonly the right both to administer and inherit a good
1 See Delano v. Blanchanl, 52 Vt. cases cited ; Scawen r. Blunt, 7 Ves.
578; Hawkins v. Providence R., 119 294; Fleet v. Perrins, L. K. 3 Q. B.
Mass. 5U6. 536 ; Langliam i\ Nenny, 3 Ves. 467 ;
2 Powes V. Marshall, 1 Sid. 172; Tritt v. Colwell, 31 Penn. St. 228;
Macq. Hus. & Wife, 19, 20; 1 Bac. Needles v. Needles, 7 Ohio St. 432;
Abr. 700, tit. Baron & Feme, V. ; 1 Burleigh r. Coffin, 2 Post. 118.
Roper, Hus. & Wife, 1G9; 1 Vent. 2G1. * Walker ;•. Walker, 41 Ala. 353;
a Co. Litt. 351; 1 Bright, Hus. & Fleet v. Perrins, L. R. 3 Q B. 536;
Wife, 36 ; 2 Kent, Com. 135 et seq., and Scrutton v. Pattillo, L. R. 19 Eq. 369.
9 129
§ 83 THE DOMESTIC RELATIONS. [PART II.
part, at least, of his wife's personal property, and she cannot
will otherwise.^
With respect to such clwses in action as may accrue to the
wife solely, or to the husband and wife jointly, during cover-
ture, the same doctrine applies. The husband may disagree to
his wife's interest and make his own absolute at any time dur-
ing coverture by recovering in suit in his own name or other-
wise reducing them to possession. But until such disagreement,
such choses in action belong to the wife, and, if not reduced
into possession by the husband, will likewise survive to her.^
It becomes important, therefore, at common law, to distin-
guish the wife's things in action from her things in possession.
To the class of things in action belong such property as rests
upon obligation, contract, or other security, for payment ; and
not only rights presently vested and capable of immediate re-
duction to possession, but those which are contingent upon
some event or reversionary upon some prior interest.^ Debts
owing the wife, arrears of rents, of profits, and of income, also
outstanding loans, are plainly choses in action.^ Money due on
mortgage is, before foreclosure, a chose in action, and even
though lent before coverture with covenants running to the
wife's heirs or executors, it must follow the usual rule.^ So are
bonds and certificates of stock.^ Income of a chose in action is
as much a chose as the principal itself ; and according to the
ordinary rule the wife becomes entitled to it by survivorship.''
A devise of land to be sold and proceeds to be divided among
certain persons, gives to each a cIlosc in action.^ Bills of ex-
1 See c. 15, post ; 110 Ind. -31. husband of an infant wife, see Slianks
2 Coppin V. , 2 P. Wms. 497; v. Edniondson, 28 Gratt. 804.
Day V. Padrone, 2 M. & S. 396, n. ; 3 gee Bell, Hus. & Wife, 52.
Howell ;,'. Maine, 3 Lev. 403 ; Wildman * 1 Bright, Hus. & Wife, 36 ; Clapp
V. Wildman, 9 Ves. 174 ; 1 Bright, Hus. v. Stougliton, 10 Pick. 4(i3.
& Wife, 37 ; 2 Kent, Com. 135, and cases & Bell, IIus. & Wife, 52 ; contra, Tur-
cited ; Wilkinson v. Charlesworth, 11 ner v. Crane, 1 Vern. 170; Kees v.
Jur. 644; Standeford r. Devol, 21 Ind. Keith, 11 Sim. 388.
404 ; Moody v. Heinphill, 75 Ala. 268. 6 Rlaymaker v. Bank, 10 Penn. St.
Reduction during the minority of an 373; Wells v. Tyler, 5 Post. 340; Cum-
infant husband is good, though he dies mings v. Cumniings, 143 Mass. 310.
before majority. Ware v. Ware, 18 '' Wilkinson i'. Charlesworth, llJur.
Gratt. 670. As to reduction by the 644.
8 SmiUe's Estate, 22 Penn. St. 130.
130
CHAP, v.] wife's personal PROPERTY. § 84
change and promissory notes, unlike many clioses in action in
being legally transferable by simple indorsement, are now con-
sidered clwses in action of a peculiar nature, though it was for-
merly thought that they vested absolutely in the husband by
marriage ; * and bank checks, certificates of deposit,^ and public
securities of a negotiable character,^ may be placed in the same
class. Legacies and distributive shares are sometimes treated
as though they vested absolutely in the husband without reduc-
tion into possession ; but unquestionably the better opinion is
that they are clwses in action (especially if no decree of distribu-
tion has been rendered, or the estate is unsettled), in which
case the creditor of the husband ought not to be allowed to at-
tach them before the latter has done some act disaffirming his
wife's title, inasmuch as the property still belongs to the wife.'*
The wife's choscs in action must not be confounded with her
goods or specific chattels in the hands of third parties, which,
unlike her choscs in action, vest in the husband absolutely by
the marriage.^ Money rights or claims generally, as for in-
stance a claim for damages growing out of a tort committed
upon the person or character of the wife, fall under our present
head.'^
§ 84. Wife's Personalty in Action ; Reduction into Possession.
— What acts on the husband's part amount to an appropriation
of his wife's choses in action, or, in other words, constitute reduc-
tion into possession so as to bar her rights by survivorship, is a
1 Gaters v. Maddeley, 6 M. & W. 1 Vera. 261 ; Sterling v. Sims, 72 Ga.
423; Nash v. Nash, 2 Madd. 1:33; 1 51. But even in Massachusetts, wliere
Roper, Hus. & Wife, 211 ; 1 Bright, Hus. the doctrine prevails which is disap-
& Wife, 37 a, 38 ; 9 Jur. 827 ; Phelps proved in the te.xt, it is hckl tliat if tlie
i>. Phelps, 20 Pick. 556 ; Lenderman v. husband die before judgment in the
Talley, 1 Houst. 523. As to proceeds suit by creditors, his wife's survivor-
of the sale of a wife's dower riglit, see ship is not barred. Strong v. Smith, 1
14 Lea, 346. Met. 476. Cf. 138 Mass. 58. See Parks
- Rodgers v. Pike County Bank, 69 v. Cushman, 9 Vt. 320, wliich allows
Mo. 560. the wife's share to be attached in trus-
3 Such, for instance, as United tee process by the husband's creditors
States bonds. Brown v. Bokee, 53 Md. after a decree of distribution.
155. ^ See supra, § 82 ; 1 Schouler, Pers.
* 2 Kent, Com. 135; Schouler, Hus. Prop. 32-37.
& Wife, § 150 and cases cited; Carr r. •> Anderson v. Anderson, 11 Bush,
Taylor, 10 Ves. Jr. 574, 578 ; Lamphir 327.
V. Creed, 8 ib. 509 ; Palmer v. Trevor,
131
§ 84 THE DOMESTIC EELATIONS. [PAKT II.
doctrine of common law of much importance. Mere intention
on his part to appropriate is not suJEhcient. The purpose must
be followed by some positive act asserting an ownership.^ Nor
is actual possession of the chose in action a sufficient reduction
per se, for the husband's intention may be to hold it in the right
of another. Thus he may take the property in trust for his
wife ; and if so, he is accountable like any other trustee.^ So
he may receive it as a loan from his wife, in which case he shall
refund it like any other borrower. That reduction into posses-
sion which makes the chose absolutely as well as potentially the
husband's is a reduction into possession, not of the thing itself,
but of the title to it.^ Thus, it is reduction into possession to
collect the wife's chose and then intermingle the proceeds with
his own property ; * or to have stock which was hers trans-
ferred to his own name, and then control it.^ Constructive pos-
sessions are not favored in law when they tend to defeat the
wife's survivorship. Yet reduction into possession of the wife's
chose in action, unexplained by other circumstances, is prima
facie evidence of conversion to the husband's use, and is there-
fore effectual.^ And reduction of a fund may be sufficient upon
the happening of a condition annexed to it."
The doctrine of reduction into possession offers many very
nice distinctions, involving conflicting rights of considerable
magnitude. Courts of equity, which have taken this subject
under their especial control, seem to lay down variable rules ;
and it must be confessed that the law of reduction is so built
upon exceptions, that one may more readily determine what
acts of the husband do not, than what acts do, bar the wife's
survivorship. Another difficulty in dealing with this subject
appears from the circumstance that personal property is rapidly
growing, and species of the incorporeal sort are developed quite
1 Blount V. Bestland, 5 Ves. Jr. 515. ^ Bridgman v. Bridgman, 138 Mass.
2 Baker v. Hall, 12 Ves. Jr. 4^7; 58.
Estate of Hinds, 5 Wliart. 138 ; May- ^ 143 Mass. 340.
field r. Clifton, 3 Stew. 375; Resor v. *> Johnston v. Johnston, 1 Grant.
Resor, 9 Ind. 317 ; Bell, Hus. & Wife, Cas. 468.
57 ; 42 N. J. Eq. 594. ' Dunn v. Sargent, 101 Mass. 336.
* Strong, J., in Tritt's Admr. v.
Caldwell's Admr., 31 Penn. St. 233.
132
CHAP, v.] wife's personal PROPERTY. § 85
unknown to the old common law ; while, on the other hand, the
doctrine of the wife's separate estate, under the influence of
equity and modern legislation, has expanded so fast as to fur-
nish already new elements of consideration for most of the
latest reduction cases, threatening to extinguish at no distant
day all the old learning on the subject, even before its leadmg
principles could be clearly shaped out in the courts.^
§ 85. Wife's Personalty in Action; Wife's Equity to a Settle-
ment. — The wife's equity to a settlement, which constitutes
an important branch of the English chancery jurisprudence, is
closely connected with the husband's right of reduction into
possession. Whenever the husband or his representative has
to seek the aid of a court of chancery in order to recover his
wife's property, he must submit to its order of a suitable settle-
ment from the fund. This settlement, which is made upon the
wife for the separate benefit of herself and the children as a pro-
vision for their maintenance and comfort, is known as the wife's
equity.^ Thus chancery, by a stretch of power somewhat arbi-
trary, interferes to do an act of justice. The doctrine seems to
rest upon two grounds : first, that whoever comes into equity
must do equity ; second, that chancery is the special champion
of women and children.^
The smallness of a fund is no bar to the settlement.^ The
court exercises a liberal discretion in making an award to wife
and children, even to the disadvantage of an insolvent husband's
creditors.^ But the right to claim it is personal to the wife,
may be barred or waived because of her acts or misconduct,
1 This doctrine of reduction into '^ Meals v. Meals, 1 Dick. 373 ;
possession is set forth at lengtli in Peachey, Mar. Settl. 158, 159. This
Schouler, Has. & Wife, §§ 154-150, with jurisdiction appears to have been exer-
nunierous cases cited. Various acts cised from tlie earliest period. Sturjiis
suffice, conclusive of the husband's in- r. Champneys, 5 M. & C. 103, per Lord
tention. lb. §§ 154-156. Reduction Ciiancellor Cottenham. For the doc-
into possession by assignment affords trine of the wife's equity to a settle-
many perplexing points. lb. § 1.57. ment in detail, which also gives rise to
The husband's right to reduce is one nice distinctions, see Schouler, Hus. &
of election. lb. § 156. There may be Wife, §§ 160-162 ; 38 Ch. D. 220.
reduction by suit. //*. § 158. * Schouler, Hus. & Wife, § 161.
^ 2 Kent, Com. 139-143, and cases 5 /^,. iqi,
cited ; 1 Bright, Hlis. & Wife, 230-265 ;
2 Story, Eq. Juris. § 635.
133
§ 86 THE DOMESTIC RELATIONS. [PART II.
and applies only to funds which have fallen into possession, or
are not merely reversionary.^
The wife's right of equity to a settlement is something dis-
tinct from her right of survivorship ; that is, her right upon her
husband's death to property not reduced by him ; ^ and even if
the husband has assigned the fund, the court will protect such
equity upon due application.^ The husband's assignee for val-
uable consideration takes subject to the wife's equity, although
her survivorship may have been barred by the assignment;*
but the wife's antenuptial debts must first be provided for.^
§ 86. Personal Property held by "Wife as Fiduciary ; "Wife as
Executrix, &c. — Property held by the wife in a representative
capacity at the time of marriage cannot vest in the husband ;
for here she has no beneficial interest which the law can trans-
fer to her husband.*^ Any other rule would operate a fraud
upon creditors and cestuis que trust. But if the wife be execu-
trix or administratrix at the time of her marriage, the husband
is entitled to administer in her right, by way of partial offset to
his liability for her frauds and injuries in such capacity. As
incidental to this authority, he may release and compound
debts, and dispose of the effects, and reduce outstanding trust
property into possession as his wife might have done before
coverture.' He is accountable for all property which came to
her possession, whether actually received by him or not.^ A
married woman cannot become executrix or administratrix
without her husband's concurrence ; so long, at least, as he
1 Schouler, Hus. & "Wife, §§ 161, 162. ° Barnard v. Ford, L. R. 4 Ch. 247.
An adequate settlement on the wife ^ Co. Litt. 351; 11 Mod. 178; 1
may bar her equity. /;». § 162. Bright, Hus. & Wife, 39, 40.
■i Norris v. Lantz, 18 Md. 260; Hall ^ lb.; Jenk. Rep. 79; Woodruffe v.
V. Hall, 4 Md. Ch. 283. Cox, 2 Bradf. Sur. 153; Keister v.
3 Osborne v. Edwards, 3 Stock. 73. Howe, 3 Ind. 268 ; Claussen v. La
4 Moore y. Moore, 14 B Monr. 259; Franz, 1 Iowa, 226; Dardier v. Chap-
2 Story, Eq. Juris. § 1412, and eases man, L. R. 11 Ch. D. 442. And may
cited. In McCaleb v. Crichfield, 5 foreclose a mortgage with his co-execu-
Heisk. 288, the assignee was held en- trix. Buck v. Fischer, 2 Col. T. 709.
titled to the residuary interest under a ^ Scott v. Gamble, 1 Stockt. 218.
will assigned by husband and wife For a case in wliich the husband put
jointly, no proceedings having been set money of his own into a bank where
on foot by the latter during her life to the wife had an account as executrix,
avoid the assignment or enforce her see Lloyd v. Pughe, L. R. 8 Ch. 88.
equity.
184
CHAP. VI.] wife's chattels KEAL, ETC. § 87
remains liable for her acts ; ^ nor will payments made to her
in such capacity without his assent be valid.^ It is to be gen-
erally observed in cases of this kind that the right of dispo-
sition which the husband exercises is strictly the right of
performing the trust vested in his wife, it being assumed that
she cannot perform it consistently with her situation as a feme
covert. His position is a fiduciary one, so that he cannot
purchase from a coadministratrix without consent of all bene-
ficiaries in interest.^
By marriage with a female guardian, too, the husband be-
comes responsible for the moneys with which she may then or
afterwards during coverture be chargeable in such capacity ;
the responsibility extending while she continues to act, whether
it were proper for her so to continue or not.*
CHAPTER VI.
EFFECT OF COVERTURE UPON THE WIFE S CHATTELS REAL AND
REAL ESTATE.
§ 87. Husband'3 Interest in Wife's Chattels Real, Leases, &c.
— Chattels real, such as leases and terms for years, have many
1 Administration has been granted husband's consent. In re Stewart, 56
to a wife living apart from lier husband Me. 300. As to effect on cliattels real
under a deed of separation with apt pro- where wife is executrix, see also post,
visions. Goods of Ilardinge, 2 Curt. 640. § 87.
2 1 Salk. 282; Lover v. Lover, 6 3 Pepperell v. Chamberlain, 27 W.
Jur. 156; Rubbers v. Hardy, 3 Curt. R. 410. An administrator cannot sue
60; cases cited in 2 Redf. Wills, 78. in his representative character upon
As to the indorsement of a note pay- contracts made after the death of the
able to the wife as administratrix, see intestate merely in the course of carry-
Roberts V. Place, 18 N. H. 183. And ing on the intestate's business. Hence
see Murphree v. Singleton, 37 Ala. 412. the husband must sue alone for goods
Statutes sometimes require the husband supplied by husband and wife in car-
to join in tlie wife's bond as executrix, rying on the business of the wife's
and otherwise vary the rule of the text, father, whose administratrix the wife
See Schouler, Hus. & Wife, Appendix, was ; and the joinder of the wife is
See Airhart v. Murphy, 32 Tex. 131 ; improper. Bolingbroke v. Kerr, L. R.
Cassedy v. Jackson, 45 Miss. 397. 1 Ex. 222.
Wife made sole executrix with lier * Allen v. McCullough, 2 Heisk. 174.
135
§ 87 THE DOMESTIC RELATIONS. [PART II.
of the incidents of personal property. But as between husband
and wife they differ from personal chattels. The title acquired
therein by the husband is of a somewhat anomalous nature ; for
upon them marriage operates an executory gift, as it were, the
husband's title being imperfect unless he does some act to ap-
propriate them before the wife's death. He may sell, assign,
mortgage, or otherwise dispose of his wife's chattels real with-
out her consent or concurrence ; ^ excepting always such prop-
erty as she may hold by way of settlement or otherwise as her
separate estate.^ Chattels real, unappropriated during cover-
ture, vest in the wife absolutely, if she be the survivor. In all
these respects they resemble choses in action. But if the hus-
band be the survivor, such chattels will belong to him jin^e
mariti, and not as representing his wife. And in this respect
they resemble choses in jwssession.
As to the wife's chattels real, therefore, husband and wife are
in possession during coverture by a kind of joint tenancy, with
the right of survivorship each to the other ; not, however, like
joint tenants in general, but rather under the title of husband
and wife ; since husband and wife are, in contemplation of law,
but one person, and incapable of holding either as joint tenants
or tenants in common.^
The wife's chattels real may be taken on execution for the
debts of the husband while coverture lasts, by which means the
title becomes transferred by operation of law to the creditor,
and the wife's right, even though she should survive her hus-
band, is gone.^ They may also be bequeathed by the husband
by will executed during marriage, or by other instrument to
take effect after his death ; with, however, this result : that if
the wife dies first the bequest will be effectual, not having been
subsequently revoked by the husband ; while, if the husband
dies first, the wife will take the chattel in her own right, un-
1 Co. Litt.46c; 2 Kent, Com. 1-34; 39.5; Draper's Case, 2 Freem.29; Bul-
Sir Erlward Turner's Case, 1 Vern. lock v. Knight, Ch. Ca. 266.
7; Whitmarsh v. Robertson, 1 Coll. 3 2 Kent, Com. 1.35; Co. Litt. 8.51 6;
New Cases, 570. As to what are cliat- Butler's note 304 to Co. Litt. lib. 3,
tels real, see 1 Schouler, Pers. Prop. 351 a.
29, 45-73. * 2 Kent, Com. 1-34 ; Miller v. Wil-
2 TuUett V. Armstrong, 4 M. & C. Hams, 1 P. Wms. 258.
136
CHAP. VI.] WLFE'S chattels REAL, ETC. § 87
affected by any will which he may have made, or by any charge
he may have created.^
It would appear that any assignment of a chattel real by the
husband will completely appropriate it, even though made
without consideration. 2 And if a single woman has a decree
to hold and enjoy lands until a debt due her has been paid, —
known at the old law as an estate by elegit, — and she after-
wards marries, her husband may make a voluntary assignment
so as to bind her.^ The right of appropriating the wife's chat-
tels real is, therefore, to be distinguished from the right of
reducing things in action into possession. The husband's in-
terest in his wife's chattels real may be called an interest in his
wife's right, with a power of alienation during coverture ; and
an interest in possession, since such chattels are already in pos-
session, but lying in action.* As the husband is entitled to
administer in his wife's right when she is executrix or adminis-
tratrix, he may release or assign terms for years or other chat-
tels real vested in her as such.^ But if he be entitled to a term
of years in his wife's right as executrix or administratrix, and
have the reversion in fee in himself, the term will not be
merged ; for, to constitute a merger, both the term and the
freehold should vest in a person in one and the same right.^
An exception to the husband's right by survivorship to his
wife's chattels real occurs in case of joint tenancy. If a single
woman be joint tenant with another, then marries and dies, the
other joint tenant takes to the exclusion of her husband surviv-
ing her ; for the husband's title is the newer and inferior one.'
When the husband succeeds to his wife's chattels real upon
surviving her, or appropriates it during coverture, he takes it
subject to all the equities which would have attached against
1 Co. Litt. 351 a, 466; Roberts v. « Co. Litt. 338 6; 1 Bright, Hus. &
Polgrean, 1 H. Bl. 535. Wife, and cases cited.
•^ Cateret v. Paschall, 3 P. Wms. '^ Co. Litt. 185 h. Where, during
200. But see note to 1 P. Wms. 380. coverture, a lease for years is granted
3 Merriweather v. Brooker, 5 Litt. to the wife, adverse possession, which
256 ; Paschall I'. Thurston, 2 Bro. P. C. commences during coverture, may be
10. treated as adverse either to the wife or
* Mitford V. >ritford, 9 Ves. 98. to the husband. Doe v. Wilkins, 5
5 Arnold v. Bidwood, Cro. Jac. 318; Nev. & M. 435.
Thrustout V. Coppin, W. Bl. 801.
137
§ 88 THE DOMESTIC RELATIONS. [PART II.
her. In other words, being not a purchaser for a valuable con-
sideration, he can claim no greater interest than she had.
Thus, where the wife's chattel interest is subject to the pay-
ment of an annuity, the husband must continue to make pay-
ment so long as the incumbrance lasts. And though he may
not in all cases be bound on her covenant to make new leases,
yet, if he does so, the equity of the annuitant will attach upon
them su(,'cessively.i Where the husband survives the wife the
common law vests the title to her chattels real in him so com-
pletely that he need not take out letters of administration on
her estate to secure his right.^
§ 88. Wife's Chattels Real ; Leases, &c. ; Subject continued.
— The law enables the husband during coverture to defeat his
wife's interest by survivorship by an absolute alienation or dis-
position of the whole term, either with or without considera-
tion.^ And the same rule applies to the wife's trust terms as
to her legal terms.* In order to make it effectual, the right of
the party in whose favor the disposition is made must com-
mence in interest during the life of the husband ; but it is not
necessary that it should commence in possession during that
period. Thus the husband, though he cannot bequeath these
chattels by will, as against the wife's right by survivorship, may
grant an underlease for a term not to commence until after his
death ; and this act will divest the right of the wife under the
original lease so far as the underlease is prejudicial to such
right.^ Nor need his disposition cover the whole chattel, since
the disposition necessarily operates pro tanto.^ Nor need it be
absolute, since a conditional dioposition is good if the condition
subsequently takes effect.'^ And the law enables the husband
1 Moody V. Matthews, 7 Ves. 183; Bright, Hus. & Wife, 99) ; Sir Edward
Rowew. Chichester, Amb. 719. On the Turner's Case, 1 Ch. Ca. 307; Packer
question of contribution by annuitants, v. Windham, Prec. in Ch. 41*2.
see Winslowe v. Tighe,2Ball & B. 204; ^ Qrute v. Locroft, Cro. Eliz. 287;
Hubbs >: Ratli, 2 (7). 553. Bell, Hus. & Wife, 104, 105.
2 Bellamy Re, 25 Ch. D. 620. ^ Sym's Case, Cro. Eliz. 83 ; Loft-
3 1 Bright, Hus. & Wife, 98 ; Grute ris's Case, ih. 276; Riley v. Riley, 4 C.
V. Locroft, Cro. Eliz. 287 ; Jackson v. E. Green, 229.
McComiell, 19 Wend. 175. ^ Co. Litt. 46 b. But see4 Vin. Abr.
* Tudor '•. Samyne, 2 Vern. 270 (in- 50, pi. 14.
correctly reported, according to note, 1
138
CHAP. VI.] wife's chattels REAL, ETC. § 88
to dispose not only of the wife's interest in possession, but also
of her possibility or contingent interest in a term, unless where
the contingency is of such a nature that it cannot happen dur-
ing his life.i A distinction is, however, made between cases
where the disposition is intended of the whole or of part of the
property, and where it is intended as a collateral grant of some-
thing out of it. In the latter case the transaction will not bind
the wife ; for if she survive her husband, her right being para-
mount, and her interest in the chattel uot having been dis-
placed, she will be entitled to it absolutely free from such
incumbrance.^
The husband may by other acts than express alienation divest
his wife's title, and defeat her rights by survivorship in her chat-
tels real. Thus, if the husband, holding a term in right of his
wife, grant a lease of the lands covered by the term, for the
lives of himself and his wife, the wife's terra will thereby
merge, and her right in it be defeated.^ Or if, while in pos-
session, under a lease to himself and the wife, the husband
should accept from the lessor a feoffment of the lands leased,
the term would be extinguished and the wife's right along with
it ; for the livery would amount to a surrender of the term.^
On the other hand, there are acts by the husband, which,
although they amount to the exercise of an act of ownership,
yet, as they do not pass the title, will not defeat the wife's
right by survivorship. An instance of the latter is that of the
husband's mortgage of his wife's chattels real ; or, what is the
same thing in equity, a covenant to mortgage. This is in real-
ity a disposition as security, and until breach of condition the
mortgagee has no further title. But, in order to protect the
mortgagee's rights, equity treats the mortgage or covenant as
good against the wife to the extent of the money borrowed ;
that once paid, the chattels will continue hers.^ After breach
1 Doe d. Shaw v Steward, 1 Ad. & * Downing r. Seymour, Cro. Eliz.
El. 800; 1 Bright, Hus. & Wife, 100. 912. And see Lawes v. Lumpkin, 18
And see Donne v. Hart, 2 Russ. & My. Md. .334.
360. 5 Bates i-. Dandy, 2 Atk. 207 ; Bell,
2 Co. Litt. 184 6: 1 Bright, Hus. & Hus. & Wife, 107; 1 Bright, Hus. &
Wife, 103. Wife, 106. As to the wife's disability
8 2 Roll. Abr. 495, pi. 50. to mortgage, see 101 Penn. St. 239.
139
§ 89 THE DOMESTIC RELATIONS. [PART II.
of condition, the mortgagee's estate becomes absolute ; or, at
least, he can make it so by foreclosure ; and the alienation of
the term being then completed at law, the wife's legal right by
survivorship is defeated ; subject, however, to the equity of re-
demption, where the husband has not otherwise disposed of that
likewise.^ So, too, transactions, not constituting mortgages in
the ordinary sense of the term, may yet be so construed in
equity where such was their substantial purport. And while
the intention of the husband to work a more complete appropri-
ation will be justly regarded by the court, the mere circum-
stance of a proviso in the conveyance for redemption, pointing
to a mode of reconveyance not in conformity with the original
title, will not, it seems, debar the wife from asserting her rights
by survivorship.^
§ 89. Wife's Real Estate ; Husband's Interest. — Now, as to
the effect of coverture on the wife's real estate. By marriage,
the husband becomes entitled to the usufruct of all real estate
owned by the wife at the time of her marriage, and of all such
as may come to her during coverture. He is entitled to the
rents and profits during coverture. His estate is therefore a
1 See Pitt V. Pitt, T. & R. 180; 1 mented upon. The husbaiuTs criminal
Prest. on Estates, 345. acts ; su(.'has attainder. Co. Inst. 351 a;
2 Clark V. Burgh, 9 Jur. 679. And 4 Bl. Com. 387 ; Steed v. Cragh, 9 Mod.
see In re Betton's Trust Estates, L R. 43. So, too, his alienage. 2 Bl. Com,
12 Eq. 553 ; Pigott v. Pigott, L. R. 4 421 ; 4 Bl. Com. 387. See ;ms^ § 89.
Eq. 549. As to the wife's equity for Lord Coke considered that ejectment
a settlement, however, it is held that recovered by the husband in his own
wiiere a husband mortgages the legal name would work appropriation ; l)ut
interest in a term of years belonging to he was probably in error. See Jacob's
him in rigiit of his wife, no sucii equity note to 1 Roper, Hus. & Wife, 185; Co.
arises on a claim to foreclose this mort- Litt. 46 /* ; 4 Vin. Abr. 50, pi. 18. Waste
gage against the husband and wife as operates as a forfeiture of a term. Co.
defendants. Hill v. Edmonds, 15 E. L. Litt. 351. And finally, the husband's
& Eq. 280. creditors may sell the wife's chattels
Among the miscellaneous acts of real on execution, and by their own
the husband, wliich will defeat the act determine her interest altogether,
wife's survivorship to her chattels real, Miles i\ Williams, 1 P. Wms. 258; Co.
are the following: A disseverance of Litt. 351. But it is held that the wife's
his wife's joint tenancy during cover- survivorship is not defeated by such
ture. Co. Litt. 185 /) ; Plow. Com. 418. acts of her husband as erecting build-
An award of the term to the husband, ings on the leasehold premises ; and
if carried into effect. Oglander v. Bas- making a mortgage, sale, or lease of
ton, 1 Vern. 396; note of .Jacob to 1 part bars the wife only so far. Riley
Roper, Hus. & Wife, 185, and cases com- v. Riley, 4 C. E. Green, 229.
140
CHAP. VI.] wife's real ESTATE, ETC. § 89
freehold. But it will depend upon the birth of a child alive
during coverture, whether his estate shall last for a longer term
than the joint lives of himself and wife, or not ; that is to say,
whether he acquires the right of curtesy initiate, to be consum-
mated on the death of the wife leaving him surviving.^ In the
event of such birth, his interest lasts for his own life, whether
his wife dies before him or not. If there be no child born alive,
his interest lasts only so long as his wife lives. In either case,
he has not an absolute interest, but only an estate for life, and
his right is that of beneficial enjoyment. When his estate has
expired, the real estate vests absolutely in the wife or her heirs,
and the husband's relatives have no further concern with it.^
While, therefore, the husband has the beneficial enjoyment
of his wife's freehold property during coverture, at the common
law, the ownership remains in the wife. Herein her right
becomes suspended, not extinguished, by her marriage. The
inheritance is in her and her heirs.
Consequently, the husband may collect and dispose of the
rents. He may also sue in his own name for injury to the
profits of his wife's real estate, as where growing crops are
destroyed or carried off; for this relates to his usufructuary in-
terest.^ But for injuries to the inheritance, such as trespass, by
cutting trees, burning fences, and pulling down houses, and gen-
erally in actions for waste, the wife must be joined ; and if the
husband dies before recovering damages, the right of action sur-
vives to the wife. And if the wife survives her husband, she
may commence such suits without joining his personal repre-
sentatives.* But the husband cannot prosecute such an action
1 See post, c. 15, Dissolution by ^ The defendant to an action for
Death, as to Curtesy. forcible entry of land belonging to the
■^ Co. Litt. 351 a ; 2 Kent, Com. 130 ; wife cannot insist upon her joinder as
1 Bac. Abr. 286 ; Junction Railroad a necessary party. Gray v. Dryden,
Co. V. Harris, 9 Ind. 184 ; Clarke's Ap- 79 Mo 106.
peal, 79 Penn. St. 37G ; Rogers v. * 2 Kent, Com. LSI ; Wellery. Baker,
Brooks, 30 Ark. 612. The husband's 2 Wils. 423, 424 ; Beaver v. Lane, 2
rights and liabilities attach to property Mod. 217 ; Bac. Abr. tit. Baron & Feme,
bought by himself and held in his name K. ; 1 Chitt. PI. (6th Am. ed.) 85 ; 1 Bl.
as trustee for his wife. Pharis v. Com. 362; Illinois, &c. R. R. Co. v.
Leachman, 20 Ala. 602. But not, as Grable, 46 III. 445; Thacher j;. Phin-
will be seen hereafter, to his wife's ney, 7 Allen, 146.
separate real estate.
141
§ 89 THE DOMESTIC RELATIONS. [PART H.
alone after his wife's death during the pendency of the suit.^
During coverture the wife cannot sue alone with reference to
her lands.2 Husband and wife are properly joined as plaintiffs
in a bill to protect and secure the permanent rights and inter-
ests to her real estate.^ It follows from our general statement
that a husband has no right to grant a perpetual easement in
his wife's lands.*
Besides the rents and profits during coverture, the husband,
if the survivor, is entitled to all arrears accrued up to the time
of his wife's death. Such property is not treated like the wife's
choses in action, not reduced to possession. Accordingly he may
maintain suit after coverture to recover all rents and profits
which had accrued while coverture lasted. And where the
wife joins her husband in a lease, the covenant for payment of
rent is for the husband's benefit alone while the usufruct con-
tinues.^ But it would appear to be otherwise where rent is
reserved to husband and wife, and her heirs and assigns.^ In
all cases, emblements or growing crops go to the husband or his
representatives at the termination of his estate.' This rule was
extended at the common law to cases of divorce causa precon-
tractus.^ But it does not apply to divorce for the husband's
misconduct under modern statutes.^ The husband's lease in
right of his wife operates so far in the tenant's favor as to en-
title the latter to emblements.^*^ The rule is the same whether
the husband be tenant by curtesy or not. No action, therefore,
can be maintained by the wife in such cases. Where, pending
1 Buck V. Goodrich, 33 Conn. 37. 6 Hill v. Saunders, 4 B. & C. 529.
2 Bannister r. Bull, 16 S. C. 220. Tlie wife need not be joined in such
3 Wyatt r. Simpson, 8 W. Va. 304. suits for rent. Clapp v. Stoughton, 10
It is held that the husband can sue in- Pick. 463 ; Beaver v. Lane, 2 Mod. 217 ;
truders alone for digging up the soil Sliaw v. Partridge, 17 Vt. 626; Edring-
and carrying it away. Tallmadge v. ton v. Harper, 3 J. J. Marsh. 360;
Grannis, 20 Conn. 296. Or generally Bailey v. Duncan, 4 Monr. 260.
for forcibly entering the premises. '^ Eeeve, Dom. Rel. 28, and cases
Alexander v. Hard, 64 N. Y. 228; 79 cited; Weems v. Bryan, 21 Ala. 302;
Mo 106. Spencer i\ Lewis, 1 Houst. 223.
* Such as a railroad right of way. ^ Orland's Case, 5 Coke, 116 a.
Gulf R. V. Donahoo, 59 Tex. 128. ^ See Vincent i-. Parker, 7 Paige,
5 1 Washb. Real Prop. 44; Co. Litt. 65, per Chancellor Walworth ; Jenney
351 ft; Jones v. Patterson, 11 Barb. y. Gray, 5 Oiiio St. 45.
572; Matthews y. Copeland, 79 N. C. i' Kowney's Case, 2 Vern. 322;
493. Gould V. Webster, 1 Vt. 409.
142
CHAP, VI.] wife's EEAL ESTATE, ETC.
§89
an action of ejectment brought by husband and wife to recover
possession of land to which they were entitled in right of the
wife, the husband dies, the right to the rent current and in
arrear, and also to damages for waste, survives to the wife ; and
as to rents accruing after the wife dies also, these go to her
heirs and devisees.^
The husband's interest in his wife's real estate is liable for
his debts, and may be taken on execution against him. But
nothing more than the husband's usufruct is thereby affected ;
nor can the attachment or sale affect the wife's ultimate title.^
A husband's life estate may be barred by a statute of limi-
tations like other freehold interests.^ At the common law,
attainder of treason or other felony worked a forfeiture or
escheat of real estate to the government. And corruption of
blood affected the inheritance in such cases. But as regarded
the wife's real estate, nothing more could be taken than the
1 King V. Little, 77 N. C. 138.
2 2 Kent, Com. 131 ; Babb v. Perley,
1 We. (i ; Mattocks v. Stearns, 9 Vt.
326; Perkins v. Cottrell, 15 Barb. 446;
Brown v. Gale, 5 N. H. 416 ; Canby v.
Porter, 12 Ohio, 79; Williams r. Mor-
gan, 1 Litt. 168; Nichols y. O'Neill, 2
Stockt. 88; IMontgomery v. Tate, 12
Ind. 61.5 ; Lucas r. Rickerich, 1 Lea,
726; Sale r. Saunders, 24 Miss. 24;
Cheek v. Waldrum, 25 Ala. 152;
Schneider (,-. Starke, 20 Mo. 269. But
see Jackson v. Suffern, 19 Wend. 175.
And see Rice v. Hoffman, 35 Md. 344,
as to the liability extending to ihe
husband's interest as tenant by the
curtesy. The rule in Massachusetts
is to allow the purchaser to take the
rents and profits for a definite period,
or the whole life estate, at an appraisal
of the value founded on a proper esti-
mate of the probability of human life.
But where the whole life estate is of
more value than the amount of the
execution, the more proper and per-
haps the only mode is the former.
Litchfield v. Cadworth, 15 Pick 2,3. It
has been held that the husband, under
a bona fide deed of separation, without
trustees, executed before judgment.
may relinquish to his wife all interest
in her lands, and thus avoid the de-
mands of his creditors upon the prop-
erty, even though an annuity be
reserved to himself. Bonslaugh v.
Bonslaugh, 17 S. & R. 861. But see
Bowyer's Appeal, 21 Penn. St. 210.
And it is certain that the sheriff's deed
caimot convey a greater interest tiian
the defendant lias at the time of attacii-
ment or of levy and sale. Williams v.
Amory, 14 Mass. 20; Johnson i\ Payne,
1 Hill, 111; Rabb v. Aiken, 2 McC.
Ch. 119. Therefore, wliere a statute
allows the husband a distributive share
in his wife's lands in the event of his
survivorship, no such interest passes to
the purchaser of lands sold on execution
for his debts during her life. Starke
V. Harrison, 5 Rich. 7. Since the hus-
band's life interest is liable for his own
debts, it is liable for the debts of the
wife diim siiln. Moore ?■ Richardson, 37
Me. 438. And it is held in Pennsylvania
that where a husband has conveyed his
life estate in fraud of his creditors, they
may levy upon the growing crops.
Stehman v. Huber, 21 Penn. St. 260.
3 Kibble v. Williams, bb 111. 30.
143
§ 90 THE DOMESTIC RELATIONS. [PART II.
husband's life interest : the freehold continued in the wife as
before. For the same reason, where the wife was at common
law attainted of felony, the lord might enter to the lands by
escheat, and eject the husband whenever the crown had had its
prerogative forfeiture of a year and a day's waste. ^ The com-
mon law of attainder is of no force in this country so far as
forfeiture and corruption of blood is concerned ; but it probably
applies to the husband's life interest in his wife's lands.^ Where
the husband was an alien he could not acquire an interest in
his wife's real estate at the common law.^ But the disability
is now removed in great measure by statute.'*
At common law, too, the marital rights of the husband do not
attach to realty in which the wife has only a remainder or rever-
sion expectant upon the termination of a precedent life estate.^
Mere contingencies of the wife, which cannot happen before the
death of either spouse, cannot be attached, therefore, by creditors
of the husband ; ^ nor landed expectancies in general while con-
tinuing expectant." He cannot adjust her boundaries alone.^
§ 90. Wife's Real Estate ; Husband's Right to Convey or Lease.
— The husband alone has power at common law to bind or
alienate the wife's lands during coverture. This right lasts, at
any rate, during their joint lives (provided the parties be not in
the mean time divorced) ; and if the husband gain a tenancy
by curtesy, it lasts during his whole life. But the husband's
power is commensurate with his estate. He cannot incumber
the property beyond the period of his life interest, nor prevent
his wife, if she survives him, or her heirs after his death, from
enjoying the property free from all incumbrances which he may
have created.^ Under the ancient law of tenures the husband
1 Bell, Hus. & Wife, 149, 150; 2 Bl. Bell, Has. & Wife, 151, 241. Stat. 7 &
Com. 253, 254. As to the wife's right 8 'Vict. c. 66, removes disabilities as to
of dower in such cases, see 2 Bl. Com. dower for the most part.
253, and notes by Cliitty and others. '' Baker r. Flournoy, 58 Ala. 650.
2 See Const. U. S. Art. III. § 3. ^ Hornsby v. Lee, 2 Madd. Ch. 16;
8 Washb. Real Prop. 48, and cases Allen v. Scurry, 1 Yerg. 36 ; Sale r.
cited ; Bell, Hus. & Wife, 151 ; Co. Saunders, 24 Miss. 24.
Litt. 31 /) ; Menvill's Case, 13 Co. 293 ; ^ Osborne v. Edwards, 3 Stockt. 73 ;
2 Bl. Com. 293 ; 2 Kent, Com. 39-75. Baker v. Flournoy, 58 Ala. 650.
* See note to 1 Washb. Real Prop. » 53 Conn. 496.
49, giving statutory changes. And see ® 2 Kent, Com. 133.
144
CHAP, vr.] wife's real estate, etc. * § 90
could transfer the property so as to vest it in the grantee, sub-
ject to the wife's entry by writ cui in vita ; for his act amounted
to a discontinuance. Statute 32 Hen. VIII. c. 28, was remedial
in its effect, so far as to give the wife her writ of entry, not-
withstanding her husband's conveyance. Copyhold lauds fol-
lowed a different rule, not being considered within the letter or
the equity of this statute. But by the more recent statutes of
3 & 4 Will. IV. c. 27 and c. 74, and 8 & 9 Vict. c. 1U6, fines
and recoveries have been abolished and feoffments deprived of
their tortious operation ; and it is enacted that no discontinu-
ance or warranty made after the 31st day of December, 1833,
shall defeat any right of entry or action for the recovery of
land. At the present day there is, therefore, no mode of con-
veyance in the English law by which the husband can convey
more than his own estate in his wife's lands. ^
These latter statutes are not, per se, of force in this country,
for they were passed in England after the colonization of
America. But the same result has been very generally reached
in this country through a different process. In Massachusetts,
the statute of 32 Hen. VIII. is still in force as a modification
and amendment to the common law ^ In other States, eject-
ment or other summary process may be resorted to.^ The
universal doctrine, whatever may be the form of remedy, pre-
vails, that the husband can do no act nor make any default to
prejudice his wife's inheritance. And while his own alienation
passes his life estate, it can do no more ; but the wife, notwith-
standing, may enter after his death and hold possession.*
So far as the effect of the husband's lease was concerned, the
statute 32 Hen. VIII. c. 28, changed the old common law. By
this statute, husband and wife are permitted to make a joint
lease of the wife's real estate for a term not exceeding three
lives or twenty-one years. There were, however, some restric-
tions placed upon the operation of this statute. Thus, it was
1 1 Bright, Hus. & Wife, 162-168, 264 ; N. Y. Eev. Stats. 4th ed. vol. 2,
and authorities cited ; Bell, Hus. & p. 30.3 ; 2 Kent, Com. lo3 n.
AVife, 195 ; Robertson v. Norris, 11 * 2 Kent, Com. 1-33 n. ; 1 Washb.
Q- B. 916. Real Prop. 279; Butterfield v. Beall,
2 Bruce v. Wood, 1 Met. 542. 8 Ind. 203 ; Huff v. Price, 50 Mo. 228;
8 Miller v. Shackleford, 4 Dana, Jones v. Carter, 73 N. C. 148.
10 145
§ 90 ' THE DOMESTIC RELATIONS. [PART II.
further declared that things which lie in grant, snch as fran-
chises, should be excepted ; though tithes followed the general
principle. And the old lease must have been surrendered either
in writing or by operation of law within one year from making
the new lease. Property in possession might be leased under
the statute, but not property in reversion. The lease would
not exempt the tenant from responsibility for waste. And the
rent reserved should not be less than the average rent of the
preceding twenty years. This statute has been strictly con-
strued both in the common-law and equity courts of England.^
But the husband's lease of the wife's lands, whether alone or
jointly with her, may be good at the common law, though not
made in compliance with the statute. In such case the wife
may affirm or disaffirm the lease at the expiration of coverture.
And the same right may be exercised by her issue, or by others
claiming under her or in privity with her. So, too, where she mar-
ries again after her husband's death, her second husband has the
privilege of election in her stead. But one who claims by para-
mount title to the wife, as, for instance, a joint tenant surviving
her, cannot exercise this right.^ And the general principle is
that a husband cannot, without his wife's consent, execute a lease
of her real estate so as practically to interfere with the ultimate
possession and enjoyment which the law accords to her.
Some acts of the wife, on being released from coverture, will
amount to an affirmance of her husband's informal lease. Thus
acceptance of rent from the tenant, after her husband's death,
will confirm the lease.^ But parol leases of the wffe's real es-
tate are affected by the statute of frauds ; and not even accept-
ance of rent can bind the wife surviving : the lease will be
treated as utterly void at the husband's death, and not void-
able only.* Whether acceptance of rent by the wife after the
husband's death would confirm a lease in writing, made by the
1 Bell, Hus. & Wife, 179-181; 1 Aprborow, Cro. Jac. 417; Anon., 2
Bright, Hus. & Wife, 193-219; Dar- Dyer, 159. See also Toler y. Slater, L.
lington V. Pulteney, Cowp. 267. As R. 3 Q. B. 42, where the lessee was held
to distraint for rent by the wife against bound on his covenant to pay rent.
a lessee, see 55 Md. 319. 8 poe r. WelJer, 7 T. R. 478.
2 Bell, Hus. & Wife, 175, 177 ; Jef- * Bell, Hus. & Wife, 178. And see
frey v. Guy, Yelv. 78 ; Sraalman v. Winstell *;. Held, 6 Bush, 58.
146
CHAP. VI.] wife's real ESTATE, ETC. § 92
husbaud alone, is a question on which the authorities are not
agreed.^ A distinction, however, is sometimes made between
leases for life and leases for terras of years, when made by the
husband alone. The former, it is said, being freehold estates
and commencing by livery of seisin, could only be avoided by
entry ; while the latter became void absolutely on the husband's
death. But according to the better authority both kinds of
leases follow the same principle, and are not void but voidable
at the husband's death.^
§ 91. 'Wife's Real Estate ; Husband's Mortgage ; Waste. —
The husband's mortgage of his wife's real estate is effectual to
the same extent as his absolute conveyance ; that is to say, it
will operate upon his life estate or the joint life estate of him-
self and his wife, as the case may be, and no further. And his
lease of the wife's lands for a term of years, for the purpose of
creating an incumbrance in the nature of a mortgage, is treated
in equity as a mortgage ; and the wife's acceptance of rent
after his death cannot make such a lease other than void on
the termination of his life estate.^
§ 92. Wife's Real Estate ; Husband's Dissent to Purchase, &c. ;
Conversion. — The husband may dissent from a purchase, gift,
or devise of real estate to his wife daring coverture; since
otherwise he might be made a life tenant to his own disadvan-
tage. But by such dissent he cannot and ought not to defeat
her ultimate title as heir.* Nor on principle should he be per-
mitted to dissent to any purchase, gift, or devise to the wife's
separate use, by the terms of which his own interest as life
1 Bell, Hus. & "Wife, 177, and cases butter v. Bartholomews, 2 P. Wms.
cited; Preamble to Stat. 32 Hen. VIII. 127. The husband's mortgage, in this
c. 28; Cro. Jac. 332 ; Bac. Abr. Leases, country also, passes only his life estate,
C. 1. See 2 Saund. 180, n. 10; Bro. under the like circumstances. Miller
Abr. Acceptance, 1 ; Vaugh. 40 ; Good- v. Shacklef ord, 3 Dana, 291 ; Barber v.
right V. Straphan, 1 Cowp. 201 ; Hill Harris, 15 Wend. 615 ; Railroad Co. v.
V. Saunders, 2 Bing. 112. Harris, 9 Ind. 184; Kay v. Whittaker,
S Bell, Hus. & Wife, 177, 178, and 44 N. Y. 565. As to the wife's remedy
cases cited ; contra, notes to 2 Kent, for waste, see Schouler, Hus. & Wife,
Com. 133, and authorities referred to, §171; 1 Washb. Real Prop. 118-124.
including note of Serjeant Williams to * Co. Litt. 3a,- 1 Dane, Abr. 388;
Wotton V. Hele, 2 Saund. 180. 4 ib. 397 ; 1 Washb. Real Prop. 280.
3 Bell, Hus. & Wife. 193, 194 ; Good- As to title given to the husband by mis-
right V. Straphan, 1 Cowp. 201 ; Dry- take for the wife, see 27 Kans. 242.
147
92
THE DOMESTIC EELATIONS.
[part II.
tenant is legally excluded. Subject to the husband's dissent
and the wife's disagreement after her coverture ends, a convey-
ance to the wife in fee is always good.^
If the real estate of the wife be converted into personalty
during her life by a voluntary act of the parties, the proceeds
become personal estate, and the husband may reduce into his
own possession or otherwise take the proceeds. This principle
is known as conversion.^ But where conversion takes place by
act of law, independently of husband and wife, the rule is not
so clear.'^ On the other hand, the rule is announced that where
a married woman is entitled to a legacy, and land is given her
in lieu thereof, the husband having effected no prior reduction
of the legacy, it is to be held as hers and for her sole benefit.
A case of this sort was lately decided in Pennsylvania.* And
it is held that land purchased by a married w^oman with the
proceeds of a legacy which the husband has declined to reduce
into possession is not liable for the husband's debts.^
1 Co. Lift. So, 356 6; 2 Bl. Com.
292, 293 ; 2 Kent, Com. 150. The wife's
privilege of disagreement to purchase
extended to her heirs. lb.
2 Hamlin , v. Jones, 20 Wis. 5-36 ;
Watson V. Robertson, 4 Bush, 37 ; Till-
man V. Tillman, 50 Mo. 40; Sabel v.
Slingluff, 52 Md. ].32 ; Humphries v.
Harrison, 30 Ark. 79; Schouler, Hus.
& Wife, § 156.
^ Graham )'. Dickinson, 3 Barb. Ch.
170. In this case, Flanagan v. Flana-
gan, 1 Bro. C. C. 500, appears to liave
been disapproved. In New York, how-
ever, it is held that where the real
estate of a married woman has been
converted into personalty by operation
of law during her lifetime, it will be
disposed of by a court of equity, after
her death, in the same manner as if she
had herself converted it into personal
property previous to her death. Gra-
ham V. Dickinson, 3 Barb. Ch. 170.
So, too, in some States, conversion of
real estate, under partition proceed-
ings, into personalty, has been held
complete where equity decreed parti-
tion, and the wife died after a final
148
confirmation of the sale in court, all
terms of sale having been complied
with, and all formalities duly observed.
Jones i;. Plummcr, 20 Md 416; Cow-
den V. Pitts, 2 Baxt. 59. Where an ad-
ministrator's sale of the wife's land is
irregular, the husband cannot, apart
from the wife, confirm it, even though
he has received the purchase-money.
Kempe v. Pintard, 32 Miss. 324. See
also Ellswortli v. Hinds, 5 Wis. 613;
Osborne v. Edwards, 3 Stockt. 73. But
a husband may demand and reduce
into possession his wife's legacy, even
though it be made payable, by the
terms of a will, from proceeds of the sale
of the testator's real estate. Thomas
V. Wood, 1 Md. Ch. 295. Conversion
takes place where husband and wife
convey to trustees to sell and dispose
for payment of debts, balance to be
paid them as they shall direct or ap-
point. Siter V. McClanachan, 2 Gratt.
80. And see post, c. 14.
* Davis V. Davis, 46 Penn. St. 342.
But see Davis's Appeal, 60 Penn. St.
118.
5 Coffin V. Morrill, 2 Fost. 352. And
CHAP. VI.] wife's real ESTATE, ETC. § 94
§ 93. "Wife's Real Estate; Husband's Agreement to Convey. —
By the old law of England^ it appears that, if a husband agreed
to convey real estate belonging to his wife, he might be com-
pelled to execute the contract by getting her to levy a fine.^
This rule no longer holds good in that country.^ Even where
the agreement has been made, not by the husband, but by the
wife herself before her marriage, the agreement cannot now be
enforced against the wife.^ But it is nevertheless binding upon
the husband ; though, where the purchaser has not been misled,
the husband cannot be made to convey his partial interest and
submit to an abatement of the price, because of the wife's re-
fusal to convey her real estate wliich he and she had promised
to convey.*
§ 94. Wife's Agreement to Convey ; Her Conveyance, Mort-
gage, &c., under Statutes. — A mere agreement by a ferae covert
for the sale of her real estate, the same not being her separate
property, cannot be enforced at law^ or in equity against her,^
nor does her mere contract estop her from asserting title or jus-
tify a suit against her for specific performance. Sugdeu con-
siders it doubtful whether a married woman, having a power
of appointment, can thus bind herself.^ But modern statutes,
which permit the wife to convey with the observance of certain
see Sims v. Spalding, 2 Duv. 121. See « Sug. V. & P. lltli ed. 231. And
furtlier incidents, Schouler, Hus. & see § 94. She certainly cannot in some
Wife, § 172. States. Kennedy v. Ten Broeck, 11
1 2 Briglit, Hus. & Wife, 47 ; Macq. Bush, 241. But the wife cannot use
Hus. & Wife, 32. her privilege in this respect unfairly,
2 Frederick v. Coxwell, 3 Y. & J. where the purchaser has become bound
514 ; Emery v. Ware, 8 Ves. 505 ; 2 on his part. See Cross v. Noble, 67
Story, Eq. Juris. §§49-5-3; Thayer v. Penn. St. 74. Where a married woman
Gould, 1 Atk. 617 ; 1 Amb. 495. But agreed to exchange a parcel of land
see Davis v. Jones, 4 B. & P. 267. owned by her for anotlier tract, and
3 Per Lord Ch. Coltenliam, Jordan give a mortgage on the latter to equal-
r. Jones, 2 Fhill. 170; Rowley (;. Adams, ize the exchange, but after the exe-
6 E. L. & Eq. 124. cution of the deed to her, refused to
* Totliill, 106 ; Hall v. Hardy, 3 P. acknowledge the mortgage, a court
Wms. 187 ; Morris v. Stephenson, 7 of equity, while admitting that there
Ves. 474 ; Castle v. Wilkinson, L. R. was no way to compel her, charged
5 Ch. 534. the land with the amount in recogni-
^ Macq. Hus. & Wife, 32 ; Emery v. tion of the contract. Burns y. McGregor,
Ware, 5 Ves. 846 ; Sug. V. & P. 11th 90 N. C. 222.
ed. 230; Parks v. Barrowman, 83 Ind.
561.
149
§ 94 THE DOMESTIC RELATIONS. [PART IE.
formalities, often permit her generally to contract, to convey,
and to incumber her lands.
Under the modern statute of 3 & 4 Will. IV. c. 74, which
took effect in England from the end of the year 1833, married
women are permitted to alienate or incumber their real estate
by conveyances executed with their husbands pursuant to its
provisions. This important law, with its later modifications,
unfettered property which had long been fast bound.^ The
statute requires the concurrence of the husband in such con-
veyances ; also that the wife shall make an acknowledgment
before certain judicial officers designated by the act, apart from
her husband, to the effect that her own consent is freely and
voluntarily given.^ Specific performance, where the wife fails
to execute in conformity with the statute, will not be enforced
against her.^
In this country the custom of a wife's joining her husband
in a deed of conveyance of her lands has prevailed from a
very early period. In most, if not all, of the States, there
are statutes existing as to the mode of execution, which con-
template the joinder of "husband and wife in the convey-
ance, and an acknowledgment by one or both of the parties.*
1 See 8 & 9 Vict. c. 106. Prop. 280 ; 1 Wnis. Real Prop. 88. See
2 See Macq. Hus. & Wife, 28-32 ; 76. later Act 45 and 46 Vict. c. 39 as to
Appendix, 1-47, where the provisions acknowledgment (1882); 35 Ch. D.
of this act, the rules of court made in 345.
pursuance, and leading decisions on the ^ Cahill v. Cahill, 8 App. Cas. 420.
construction of different sections are * 1 Washb. Real Prop. 281, and cases
fully given. And see In re Dowling, cited; Davey v. Turner, 1 Dall. 15;
18 C. B. N. s. 233. We have not thought Jackson v. Gilchrist, 15 Johns. 109;
it worth while to embody them in this Page v. Page, 6 Gush. 196 ; 2 Kent,
work, as they have only a local appli- Gom. 151-155, and notes, showing cus-
cation. There are many cases con- torn in different States; Albany Fire
stantly arising in the English courts as Ins. Co. v. Bay, 4 Comst. 9 ; Ford v.
to the interpretation of this statute, Teal, 7 Bush, 156; Mount v. Kester-
with its amendments; but they seem son, 6 Cold. 452 ; Tourville ?;. Pierson,
chiefly confined to the effect of the 39 111. 446; Deery y. Cray, 5 Wall. 795;
wife's acknowledgment. But as to the Alabama, &c. Ins. Co. y. Boykin, 38
extent of this right, see 23 Ch. I). 181. Ala. 510 ; Lindley v. Smith, 46 III. 523;
Previous to the statute of 3 & 4 Will. Tubbs v. Gatewood, 26 Ark. 128. The
IV. c. 74, the wife could convey her in- privy examination of a wife for ascer-
terest only by levying a fine, which, as taining that slie executes the deed
well as suffering recoveries, is abol- freely and without undue influence or
ished by that statute 1 Washb. Real compulsion of her husband is a feature
150
CHAP. VI.]
"WIFE S REAL ESTATE, ETC.
94
Some of the States require a separate acknowledgment of the
wife apart from her husband, and even a privy examination by
the magistrate, so as to make sure that she is acquainted
with the contents of the deed, and acts freely and under-
standingly ; but in this and other respects the laws are not
uniform. There is less formality in general than under the
English statute. Thus, then, does the wife pass title to her real
estate.
And since, in the tenure of lands and the mode of convey-
ance, the law in this country has always varied considerably
from that of England, the rights of married women in other
respects may be different.^ But following the English doctrine,
the wife's executory agreement to convey real estate, whether
expressed by bond or simple instrument, is in this country held
void in the absence of enabling statutes, like her general con-
tracts, though made with her husband's assent; and specific
performance cannot be enforced against her.^ Her defective
conveyance of her land cannot be treated as her contract to
of the legislation in many States ; and
the validity of her conveyance often
turns upon a compliance with such a
requirement. Schouler, Hus. & Wife,
§174.
1 Thus it would seem tliat the joint
assent of husband and wife in accept-
ing a title sliould be as good as in
granting one. 1 Washb. Keal. Prop.
2b0. And in New Hampshire it is held
that a deed to a feme covert, made with
her own and her husband's assent, vests
the title legally in lier. Gordon v. Hay-
wood, 2 N. H 402. See Leach v.
Noyes, 45 N. H. .364. In Pennsylvania,
if land conveyed to her be incumbered,
it passes to her subject to that incum-
brance. Cowton V. Wiekershara, 54
Penn. St. 802. And in Vermont it has
been held that a deed of gift to a wife
during coverture, if accepted by her
husband, is accepted by her, and that
her refusal apart from him is of no
consequence. Brackett v. Wait, 6 Vt.
4n.
2 2 Kent, Com. 168 ; Butler v. Buck-
ingham, 5 Day, 492; Dankel v. Hunter,
61 Penn. St. 382; Stidhara v. Mat-
thews, 29 Ark. 650 ; Moseby v. Partee,
5 Heisk. 26 ; Holmes v. Thorpe, 1 Halst.
Ch. 415; Lane v. McKeen, 15 Me. 304 ;
Parks V. Barrowman, 83 Ind. 56L
We make, of course, no reference here
to the wife's separate propertij, or to her
rights under what are known as the
" married women's acts," to be consid-
ered ;>os/. See Blake r. Blake, 7 Iowa,
46. A contract to convey, made by
husband and wife, may be good against
the husband, though voio' as to the
wife. Steffey v. Steffey, 19 Md. 5 ; 53
Wis. 572 ; Johnston v. Jones, 12 B.
Monr. 326; 2 Kent, Com. 168. See
supra, § 60. Upon the strict assent of
husband and wife, equity has some-
times decreed a sale under tlie wife's
title-bond. jNIosebj' v. Partee, 5 Heisk.
26. As to the wife's ratification of the
husband's unauthorized contract for
the sale of her land, see Ladd v. Hilde-
brandt, 27 Wis. 135.
151
94
THE DOMESTIC RELATIONS.
[part II.
convey it, nor as an estoppel.^ So it has been held in various
States that the wife cannot, either separately or jointly with
her husband, execute a valid power of attorney to convey her
lands.^ And a deed, in order to bind the wife's heirs, must
have been delivered, as well as executed, during her lifetime.^
Nor can her husband, after her decease, as against such heirs,
confirm a conveyance which was fatally irregular on her part.*
If her conveyance be void, a note given in part-payment of the
price is necessarily without consideration.^ She may recover
the land defectively conveyed, and often without either re-
paying the purchase-money or compensating for the vendee's
improvements.^ Nor will the law coerce her into fulfilling
her agreement by granting exemplary damages against her
husband.''
So, too, in this country a married woman may mortgage as
1 Bagby v. Einberson, 79 Mo. 139 ;
62 Tex. 623 ; 80 Mo. 179.
'^ Sumner v. Conant, 10 Vt. 1; Gil-
lespie V. Worford, 2 Cold. 632; Har-
denburgh v. Lakin,47 N. Y. 109; Hol-
land i\ Moon, 39 Ark. 120.
3 Tlioenberger v. Zook, 34 Penn.
St. 24 ; Bonneson v. Aiken, 102 111. 284.
But see Ackert v. Pults, 7 Barb. 386;
Somers v. Pumphrey, 24 Ind. 231.
4 Dow V. Jewell, 1 Fost. 470; 77
Mo. 452.
^ Warner v. Crouch, 14 Allen, 163.
6 85 N. C. 184. As to the wife's
agreement to purchase, &c., see Robin-
son V. Robinson, 11 Bush, 174; Staton
V. New, 49 Miss. 307 ; Bedford v. Bur-
ton, 106 U. S. 3.38 ; post, c. 9.
" Burk V. Serrill, 80 Penn. St. 413.
In some States the separate convey-
ance of a married woman, or her ex-
ecution jointly with lier liusband, but
without observance of tlie full statute
formalities, is void. But in others such
irregularities are not held fatal to the
instrument, and she is furthermore
bound on the usual principles, even
though her deed be separate from that
of her husband and executed at a dif-
ferent time. The question in such
cases is mainly one of statute construe-
152
tion ; and as to formalities a distinction
may be taken between mere errors of
description, or literal infornuilities of
execution or acknowledgment on tiie
one hand, and, on the other, llie dis-
regard of some statutory requirement,
so as to substantially violate public
policy, such, for instance, as her sep-
arate acknowledgment, or her decla-
ration before the magistrate that she
executed freely and understandingly
for the purpose specified. See Schouler,
Hus. & Wife, §§ 175, 176, where tliis
subject of statute conveyances by hus-
band and wife is considered at lengtii.
Under various modern codes the wife
may convey and acknowledge as feme
sole, without the husband's joinder at
all. See 86 Ark. 355; § 170 «.
In general, where the certificate of a
married woman's acknowledgment of
a deed states all that the local stat-
ute requires, although it be assumed to
be only prima facie evidence of the
facts stated in it, its statements can-
not be succcessfully impeached by evi-
dence not clear, complete and satisfac-
tory. Young V. Duvall, 109 U. S. 573 ;
Smith V. McGuire, 67 Ala. 34; Herrick
V. Musgrove, 67 Iowa, 63.
CHAP. VI.] wife's real ESTATE, ETC. § 95
well as alienate her real estate by joining her husband in the
conveyance and making due acknowledgment; and this, too,
though no consideration pass to her thereby.^ Where the wife
joins her husband in a conveyance in the nature of a mortgage,
she subjects her real estate to the risk of complete alienation by
foreclosure for her husband's debt, or by sale under a power of
sale thereby conferred. She is estopped by her own acts from
denying the validity of the mortgage.^ She may covenant that
scire facias may issue in default of payment.^ She may create
a valid power in the mortgage to sell in default of payment.^
And in general she may convey upon condition and prescribe
the terms.^ But independently of an express statute permis-
sion, and as our statutes generally run, the wife's mortgage
without her husband's joinder or assent is void.*^ And so is
her assignment of a mortgage.''
§ 95. Covenants in Wife's Statute Conveyance or Mortgage,
&c. — The rights of the wife are nevertheless in all- such cases
of conveyance, absolutely or for security, treated with great
consideration in our courts.^ Wherever the wife joins her
husband in a mortgage of her own property to secure his debts
or the payment of money loaned to him, she is merely the
surety of her husband, and is entitled to all the rights and
1 Eaton V. Nason, 47 Me. 132 ; Swan Kent, Gl 111. 426 ; Yager v. Merkle, 26
V. Wiswall, 15 Pick. 126; Whiting v
Stevens, 4 Conn. 44 ; Deniarest v. Wyn
koop, 3 Joiins Ch. 144; 2 Kent, Com
167 ; Siter v. MoClanachan, 2 Gratt
280; Schouler, Hus. & Wife, § 176;
Minn. 429 ; Herdmann v. Pace, 85 111.
345.
^ Moore v. Cornell, 68 Penn. St. 320.
Equity and legislative policy in
modern times, as we shall observe here-
American, &c. Ins. Co. V Owen, 15 after, tend, moreover, to protect the
Gray, 491 ; Edwards v. Schoeneman, wife from the consequences of her con-
104 III. 278. But cf. § 152. veyance or mortgage where she has
2 MoCuUough V. Wilson, 21 Penn. been imposed upon, and if possible to
St. 436. protect the fund produced by iier real
8 Black V. Galway, 24 Penn. St. 18. estate for her wherever its identity is
* 2 Kent, Com. 167; Vartie v. Un- preserved. See cs. 10, 11. Where the
derwood, 18 Barb. 561 ; Barnes v. Ehr- purchaser of her land pays to her bus-
man, 74 111. 402. band less than she agreed to receive,
* Demarest v. Wynkoop, .3 Johns, she may repudiate the sale, save so
Ch. 129; 2 Kent, Com. 167. So, too, in far as her own subsequent acts and
England. Pybus v. Smith, 1 Ves. Jr. conduct may impede her right. Cole
189. V. Bammel, 62 Tex. 108.
^ Weed Sewing Machine Co. v. ^ See Bayler v. Commonwealth, 40
Emerson, 115 Mass. 554; Bressler v. Penn. St. 37, per Strong, J. ; lb. p. 44.
153
-Jf
§ 95 THE DOMESTIC RELATIONS. [PART II.
privileges of a surety. This rule is well settled.^ The prop-
erty actually mortgaged by her, and not her property in gen-
eral, is thus subjected to the payment of her husband's note ;
and she cannot be held personally liable for any deficiency
under the foreclosure sale.^ Such restrictions are intended for
her benefit, not for those of the mortgagee.'^
So, too, a wife is not bound by her warranty in a deed which
she executes. Nor by any covenants contained therein. This
is the general common-law rule in England and America.^ For
this accords with the principle that married women are incapa-
ble of binding themselves by contract; and the effect of her
conveyance under the statute is simply that she passes what-
ever title she had in the lands conveyed. Yet the husband
may be bound on his part, where he joins her, notwithstanding.^
In England, where the wife formerly passed her real estate by
suffering a fine, it was held long ago that if the grantee were
evicted by a paramount title the wife could be sued on her cov-
enant of warranty after her husband's death.^ So, too, it was
formerly said that the wife should be held bound on the cove-
nants contained in a lease of her lands executed during cover-
ture, with her husband, and affirmed by herself after his death,
by such acts as the acceptance of rent ; "^ and this doctrine is
certainly not unreasonable so far as a subsequent breach of cov-
enant is concerned. But further than this, courts would not
probably go at this day.^ And in this country the wife's cove-
nants in a conveyance executed jointly with her husband are
considered binding upon her only by way of estoppel ; and not
1 Neimcewioz v. Gahn, 3 Paige, 614 ; (N. J.) 525 ; Ravvle. Cov. 573, 574 ; Bots-
Hawley v. Bradford, 9 Paisje, 200 ; Var- ford v. Wilson, 75 111. 133.
tie V. Underwood, 18 Barb. 561. See ^ Buell v. Shunian, 28 Ind. 464;
Sfhouler, Hus. & Wife, § 177, more Griner i-. Butler, 61 Ind. 362.
fully. ^ Wotton v. Hele, 2 Saund. 177 ; 1
2' Strother v. Law, 54 111. 413 ; Lo- Mod. 290. Chancellor Kent justly ob-
gan V. Tlirift, 20 Ohio St. 62 ; Schou- serves that this was a very strong case
ler, Hus. & Wife, § 177, and cases to show that she might deal with her
cited. land by fine as a feme sole. 2 Kent,
3 Bennett v. Mattingly, 110 Ind. 107. Com. 167.
4 2 Kent, Com. 167, 168 ; Fowler v. ^ 2 Saund. 80, note 9.
Shearer, 7 Mass. 21, per Parsons, C.J. ; ^ Her covenant for quiet enjoyment
Falmouth Bridge Co. v. Tibbetts, 16 B. in the lease of her lands will not bind
Monr. 637 ; Den v. Demarest, 1 Zab. her. Foster v. Wilcox, 10 K. I. 443.
151
CHAP. VI.] wife's EEAL ESTATE, ETC. § 97
SO as to subject her to suit for damages.^ And as she is not
answerable for a breach of covenant, neither are her heirs or
devisees.2 Indeed, in New York, the wife's privilege in this
respect is carried much further, for she is permitted to execute
a conveyance of land with her husband, containing a covenant
of warranty on her part, and then to defeat the title by acquir-
ing an adverse interest afterwards.^
§ 96. Conveyance, &c., of Infant Wife's Lands. — A deed of
the wife's real estate, executed by husband and wife while the
latter is under age, may be avoided by the wife within reason-
able time after discoverture, though more than twenty years
have elapsed;* for this is analogous to the conveyance of an
infant feme sole in respect of validity.^ But not, as it is held,
where the wife, being apparently of full age, made oath that she
was of age.*^ As to the lapse of time permitted a wife for disaf-
firming the deed executed by her during infancy, the rule
appears to be that a reasonable time should be allowed her
after coverture has terminated by the death of her husband or
their complete divorce, even though twenty or thirty years may
meantime have elapsed since her attainment to majority.'^
§ 97. Distinction between Wife's General and Separate Real
Estate. — We may observe, on the whole, that, while modern
statutes greatly vary in this country, as to the requisites at-
tending a married woman's conveyance of her lands, and, as we
shall notice hereafter, concerning her legal dominion over her
1 Nash V. Spofford, 10 Met. 192 ; West, 8 Ohio, 225 ; Massie v. Sebas-
Jackson v. Vaiulerheyden, 17 Johns, tian, 4 Bibb, 436; Nasli ('. Spofford, 10
167 ; Dean v. Shelly, 57 Penn. St. 426; Met. 192. And see 4 Com. Dig. 79 b.
Hyde v. Warren, 46 Miss. 13. * Yourse v. Norcross, 12 Mo. 549.
Her subsequent promise as widow And see Porch v. Fries, 3 C. E. Green,
to be answerable for a breach of cove- 204 ; Dodd v. Benthal, 4 Heisk. 601 ;
nant committed during her coverture Williams v. Baker, 71 Penn. St. 476.
is without consideration. State Nat. ^ Dixon i'. Merrett, 21 Minn. 196.
Bank r. Robidoux, 57 Mo. 446. « Schmitheimer v. Eiseman, 7 Bush,
2 Foster v. Wilcox, 10 K. I. 44-3. 298. Sed qu., where the land belongs
3 Jackson v. Vanderheyden, 17 to the wife's general, and not her sep-
Johns. 167; Carpenter v. Schermer- arate, estate. Sims v. Everhardt, 102
horn, 2 Barb. Ch. 314. And see Shu- U. S. Supr. 300, commenting upon
maker v. Johnson, 35 Ind. 33; Good- Scranton v. Stewart, 52 Ind. 68.
enough v Fellows, 53 Vt. 102 ; Pres- ' Sims v. Everhardt, 102 U. S. Supr.
ton ?'. Evans, 56 Md. 476. Corttra, 300. And see Harrer v. Wallner, 80
Colcord V. Swan, 7 Mass. 291 ; Hill v. 111. 197 ; Fisher v. Payne, 90 Ind. 183.
155
§ 98 THE DOMESTIC RELATIONS. [PART II.
lands, the disposition is to construe those requisites more
strictly in the case of her general or common-law real estate
than where she owns lands as her statutory separate estate.
Hence a distinction, which modern legislation tends all the
while to obliterate, between the conveyance of the wife's gen-
•eral land and of her separate land. As to the latter, estoppel
in 2}ais is sometimes applicable ; but not so, usually, with the
former. In the one case the wife's own conduct during cov-
erture, by way of affirmance or receiving benefits, and more
especially her fraudulent conduct, may bind her in spite of
some defective method of conveyance; in the other and present
case it does not.^ As to the wife's separate real estate, the hus-
band is frequently her managing agent, to collect rents and deal
with the tenant on her behalf ;2 and some codes make him her
trustee, with power to manage and control such real estate.^
§ 98. Wife's Life Estate; Joint Tenancy, &c. — If the wife at
the time of her marriage has a life estate in lands, her husband
becomes seised of such estate in the right of his wife, and he is
entitled to the profits during coverture. So if it were granted
to a trustee for her own use. And the same rule applies
whether the estate be for the life of the wife or of some other
person. If the estate be for the wife's own life it terminates at
her death, and the husband has no further interest in it. But
if it be an estate for the life of another person who survives
her, the husband takes the profits during the remainder of such
person's life as a special occupant of the land. The husband's
representatives in either case take crops growing on the land at
the time of his death.^ But the husband might, at common
law, take a release or confirmation to enlarge his life estate.^
The conveyance of the wife's life estate follows the usual statute
rule as to her conveyances.^
1 See es. 10, 11, poxt ; also Wood v. * 2 Kent, Com. 134; 1 Briglit, Hus.
Terry, 30 Ark. 385; Oslesby Coal Co. & Wife, 112, 118.
V. Pasco, 79 III. 164; Sims v. Ever- 5 Co. Litt. 299.
liardt, 102 U. S. 300; Bedford y. Bur- « Henning i-. Harrison, 13 Bush, 723.
ton, 106 U. S. 338 ; 108 Ind. 301. As concerns the wife's life estate in her
2 See Kingsman v. Kingsman, 6 real or personal property, the English
Q. B. D. 122 ; Cahill v. Lee. 55 Md. chancery courts have followed out ex-
311) ; Buck V. Lee, 36 Ark. 525. ceptions to the doctrines of equitable
2 81 Ala. 411. assignment already noticed, with their
156
CHAP. VII.] wife's separate PROPERTY. § 100
A husband acquires, by his marriage, the right to use and
occupy, during coverture, lands held by his wife in joint
tenancy.^
§ 99. Husband's Freehold Interest in Wife's Land not Devisa-
ble by Wife. — The freehold which the husband acquires in
his own right in the real estate of his wife during her coverture
is a subject upon which the wife's devise cannot operate, more
than her conveyance, independently of his permission.^
CHAPTER VII.
COVERTURE MODIFIED BY EQUITY AND RECENT STATUTES.
§ 100. Prevalent Tendency to Equalize the Sexes ; Marriage
Relation Affected. — Aside from woman's political relations, and
those social and business opportunities not peculiar to the mar-
riage state, which are now extended to her sex, we may observe,
both in England and the United States, a liberal disposition of
court and legislature within the present century to bring her
nearer to the plane of manhood, and advance her condition
from obedient wife to something like co-equal marriage partner.
Man makes the concessions, step by step, out of deference to
woman's wishes, and in token of her influence ; and thus does
the coverture theory of marriage gradually fade out of our
jurisprudence. The liberal tendencies of modern civilization
favor this change : moreover, that love of justice and individual
liberty which always characterized our Saxon race, and the
steadfast disposition of Englisli and American courts both to
administer the written law impartially, and to extend and
adapt its provisions to the ever-changing wants of society.
limitations. See Purdew v. Jackson, 2 Clarke's Appeal, 79 Penn. St. 376;
1 Russ. 1 ; Schouler, IIus. & Wife, See post, as to the wills of married
§ 157 ; supra, § 84. women.
1 Bishop V. Blair, 86 Ala. 80 ; Roy-
ston V. Royston, 21 Ga. 161.
157
§ 100 THE DOMESTIC RELATIONS. [PAliT 11.
Our preceding pages have shown, in respect to the person of
the spouses, their matrimonial domicile, the conjugal restraint
and correction of the wife, the custody of the offspring; again,
as to the wife's power to bind as agent, her necessaries, or, in
respect of property, her equity to a settlement, and modern
modes of conveying her lands ; a modern disposition to so con-
strue and apply or modify the old law that she may enjoy a
very fair share of freedom and consideration in the household,
and maintain her dignity under all circumstances. Husband
and wife cease to be one ; they are two distinct persons with
distinct and independent rights. At the same time the idea of
unity in the domestic government — of domestic government at
all — becomes weakened; the cruel or dissolute husband having
less power for ill, and the just and faithful one, too, finding his
legal authority over a high-tempered companion exceedingly
precarious. Modern legislation accomplishes even more than
judicial construction towards this result, especially in the
United States ; and indeed, as to the married women's acts
and divorce acts of this day, it may be truly said, that England
borrows more from this country than does this country from
England.
Of the American married women's acts, which relate chiefly
to their property and contracts, we have already spoken.^
These acts are modern ; still, they are constantly undergoing
local change, and immense labor has been necessarily bestowed
by local courts during the last thirty years in expounding
them. We shall seek to place before the reader such legal re-
sults as may be thought to have passed into principles ; as for
the rest, it is a chaos of uninteresting rubbish, from which the
practitioner selects only that which obtains in his own juris-
diction. All this legislation regarding the rights of married
women should be harmonized and simplified as soon as practi-
cable. This is not easy with so many independent States, each
carving out its own career. And the difficulty is aggravated
from the fact that the married women's acts had no common
origin; there was no model found to work from, English or
American, and the results were necessarily discordant.
1 See Part I., supra.
158
CHAP. VII.] wife's separate PROPERTY. § 102
§ 101. Modern Changes in Married Women's Rights; How to
be Studied. — The changes to which we shall proceed to direct
the reader's inquiry, under our main heading', must be studied
as by way of supplement or supersedure to the coverture doc-
trine set forth in the chapters preceding. As before, these
changes affect the wife's debts and contracts, her injuries and
frauds, and her personal and real property. They are partly of
equitable and partly of statutory origin. But, most of all, they
impair the old doctrine which treated the husband as absolute
or temporary owner, controller, and manager of his wife's prop-
erty and acquisitions, by virtue of the marriage, and create in
favor of the wife what is commonly known in these days as
her separate property.
Here, therefore, as on most points relating to the law of hus-
band and wife, one must first examine the old common-law or
coverture doctrine, and then perceive how far modern equity
rules or the local legislation may have varied that law. Such
changes date back not much farther than a century, the most
radical of them being less than half a century old ; the equitable
changes being for the most part of earlier, and the statutory
changes of later, date, and the law of England and this country
harmonizing on the v^^hole subject, at the independence of the
American . colonies, as at their first settlement. The instance
will be found rare at the present day, where an important
common-law principle respecting the wife's contracts, torts,
property, and the formalities of. suit is not at this day essen-
tially changed.
§ 102. Modern Equity and Statute Doctrine ; England and the
United States. — As preliminary to an exposition of the wife's
separate property, we may observe that there is an equitable
doctrine on this subject and a statutory doctrine. The equitable
doctrine is the prior in point of time, and is chiefly the work of
English chancery courts ; while the statutory doctrine, wliich
is of later date, is founded in the married women's acts, now
familiar in our several States, and their judicial construction.
The equitable doctrine is more purely English ; the statutory
doctrine more purely American, — though each country has
come, ere this day, to borrow in this respect from the other.
159
§ 103 THE DOMESTIC RELATIONS. [PART IT.
American cases frequently distinguish still between an equi-
table separate estate and a statutory separate estate in favor
of a wife ; but so sweeping is the latest legislation in most
States that such a distinction becomes of comparatively little
consequence.
CHAPTER VIII.
THE WIFES SEPAKATE PROPERTY; ENGLISH DOCTRINE.
§ 103. Origin and Nature of Separate Estate in Chancery. —
In the present chapter, and with reference to Great Britain, our
concern is almost exclusively with the remarkable development
of an equitable doctrine of separate property. Emerging from
coverture and the common law, we come out into the light of
equity ; and here all things assume a new aspect. The married
woman is no longer buried under legal fictions. She ceases to
hold the strange position of a being without an existence, one
whose identity is suspended or sunk in the status of her hus-
band ; she becomes a distinct person, with her own property
rights and liabilities. Her condition is not as independent as
before marriage ; this the very idea of the marriage relation and
the disabilities of her sex forbid. But she is dependent only so
far as the laws of nature and the forms of society make her so ;
while her comparative feebleness renders her the special object
of chancery protection, whenever tlie interests of herself and
her husband clash together. She may contract on her own be-
half ; she may sue and be sued in her own name ; she may hold
lands, goods, and chattels in her own right, which property is
known as the wife's separate estate, or estate limited to the
wife's separate use.
The doctrine of the wife's separate estate originated in the
spreading conviction that it was expedient for the interests of
society that means should exist by which, upon marriage, either
the parties themselves by contract, or those who intended to
160
CHAP. VIII.] wife's separate PROPERTY. § 104
give bounty to a family, might secure property without that
property being subject to the control of the husband.^ In Eng-
land that doctrine was established more than a century ago, and
to the equity courts belong the credit of the invention.^ The
equity to a settlement, of which we have already spoken, is
part of that doctrine.^ While at common law the separate ex-
istence of the wife was neither known nor contemplated, equity
considered that a married woman was capable of possessing
property to her own use, independently of her husband ; and
the courts gradually widened and developed this principle until
it became fully settled that, however the wife's property might
be acquired, whether through contract with her husband before
marriage, or by gift from him or from any stranger indepen-
dently of such contract, equity would protect it, if duly set
apart as her separate estate, no matter though the husband
himself must be held as the trustee to support it.^
This great change in the jurisprudence of England was
effected by a few great men without any help from the legis-
lature. The court of chancery in this as in other respects
recognized its true function of making the law work justice
by accommodating its operation to the altered circumstances
of society.^ Obscure and doubtful indications of the wife's
separate estate are found as early as the reign of Queen Eliza-
beth. It ssems to have been plainly recognized by Lord Not-
tingham, Lord Somers, and Lord Cowper. In Lord Hardwicke's
time it was perfectly established ; and Lord Thurlow, in sanc-
tioning the clause against anticipation, prevented the wife her-
self from destroying the fabric which had been reared for her
benefit.^
§ 104. Whether Appointment of a Trustee is Necessary. —
Where property comes to the wife's separate use, it is treated
1 Rennie v. Ritchie, 12 CI. & Fin. * Tullett v. Armstrong, 1 Beav. 21 ;
234 ; Peachey, Mar. Settl. 259. Peacliey, Mar. Settl. 2G0, and cases
2 Harvey v. Harvey, 1 P. Wms. cited.
124 ; Woodmeston v. Walker, 2 R. & & Macq. Hus. & Wife, 284.
M. 205 ; Tullett v. Armstrong, 1 Beav. ^ See Pybus v. Smith, 4 Bro. C. C.
21. 485 ; Tullett v. Armstrong, per Lord
3 Siiprn, § 85 ; Schouler, Hus. & Langdale, 1 Beav. 22 ; Macq. Hua. &
Wife, §§ 100-162. Wife, 285.
11 161
§ 105 THE DOMESTIC RELATIONS. [PART IT,
in equity as trust estate, of which she is cestui que trust. Yet
it is not actually necessary that the instrument constituting the
separate use should itself make an appointment of trustees.
Formerly the rule was otherwise ; but at the present day equity
makes the husband a trustee where no other holds possession,
and thus supports the trust.^ And where a trustee, regularly
appointed, in bieach of his duty, and without the privity of the
wife, pays the trust-money over to the husband, equity follows
the money into the husband's hands, and makes him likewise
accountable as his wife's trustee.^ It impresses a trust upon
the wife's separate estate wherever such estate may be found.
But while the appointment of third persons as trustees is not
essential to give the wife a separate estate, or a separate interest
in any particular estate, it is certainly desirable on many ac-
counts ; and there is in it this marked advantage, that the prop-
erty is made thereby more secure, because such influence of the
husband over the wife is prevented as might induce her to
abandon the property to him.^
§ 105. Coverture applies Prima Facie; How Separate Estate
is created. — Prima facie the legal ownership of property which
is in the wife at the time of marriage, or comes to her during
coverture, vests in the husband under his marital right. It is
therefore necessary that the intention to establish a separate
use be clearly manifested, else courts of equity will not inter-
pose against him. No technical formalities or expressions are
required ; but the purpose must appear beyond the reach of
reasonable controversy, in order to entitle the wife to claim the
property as her own in derogation of the common law.^
1 Bennett v. Davis, 2 P. Wms. 316
Davison v. Atkinson, 5 T. R. 4.35
Messenger v. Clarke, 5 Exch. 393
woman, tlie compromise of a suit to
make a trustee liable for breach of
trust in tlie fund. Wall v. Rogers,
I'eacliey, Mar. Settl. 260 ; Fox v. L. R. 9 Eq. 58.
Hawks, L. R. 13 Ch. D. 822. ■* Macq. Hus. & Wife, 307 ; Tyler v.
2 Rich V. Cockell, 9 Ves. 375. See Lake, 2 Russ. & M. 188 ; Kensington v.
also Izod i\ Lamb, 1 Cr. & J. 35. Dollond, 2 M. & K. 184 ; Moore v. Mor-
3 Newlands I'. Paynter, 10 Sim. 377; ris, 4 Drew. 37; Peachey, Mar. Settl.
s. c. on appeal, 4 M. & Cr. 408 ; Hum- 279. As to the words which in them-
phery v. Ri(;hards, 25 L. J. Eq. 444 ; selves indicate the intention of creating
8. c. 2 Jur. 433 ; Peachey, Mar. Settl. a separate use, there have been numer-
2G0; Macq. Hus. & Wife, 291. Equity ous decisions. Among them the fol-
can sanction, on behalf of a married lowing expressions are held sufficient:
162
CHAP. VIII.] wife's separate PROPERTY.
§105
As a wife is only made a party to a suit instituted by her
" For lier full and sole use and bene-
fit." Arthur i'. Arthur, 11 Ir. Eq. 511.
" For her own sole use and benefit."
Ex parte Killick, 3 Mon. 1). & De G.
480. " For her sole use." Lindsell v.
Thacker, 12 Sim. 178. " For her sole
and separate use and benefit." Archer
V. Korke, 7 Ir. Eq. 478. " For her sole
and separate use." Parker v. Brooke,
9 Ves. 583 ; Adamson v. Arinitage, 19
ib. 415. " For her sole use and bene-
fit." V. Lyne, Younge, 562. " For
her own sole use, benefit, and disposi-
tion." Ex parte Ray, 1 Madd. 199.
"For her sole and absolute use." For
her "sole use and disposal." 17 Ch. D.
794; Davis v. Prout, 7 Beav. 288.
" For her own use, and at her own dis-
posal." Prichard v. Ames, Turn. «fe
Russ. 222. "To be at her disposal,
and to do therewith as she shall think
fit." Kirk i\ Paulin, 9 Vin. Abr.
96, pi. 43. " Solely and entirely for
her own use and benefit." Inglefield
V. Coghlan, 2 Coll. 247. "For her
own use, independent of any hus-
band." Wagstaff V. Smith, 9 Ves. 520.
" Not subjected to the control of her
husband." Bain v. Lescher, 11 Sim.
397. " For her own use and benefit
independent of any other person.'
Margetts ?-'. Barringer, 7 Sim. 482
" For her livelihood." Darley v. Dar
ley, 3 Atk. 399. And see Peachey
Mar. Settl. 279, 280; Macq. Hus. &
Wife, 308, 309. " As her separate
estate." Fox v. Hawks, L. R. 13 Ch.
D. 822. " To receive the rents while
she lives, whether married or single."
Goulder v. Camm, De G. F. & J. 146.
So, too, the intention of excluding
the husband's marital rights may be
inferred from the nature of the pro-
visions attached to the gift; as wliere,
for example, the direction is that the
property shall be at the wife's disposal,
or there is some other clear indication
that such was the donor's intention.
Prichard v. Ames, Turn. & Russ. 223 ;
Peachey, Mar. Settl. 279. Lord Tliur-
low once decided that a direction " that
the interest and profits be paid to her,
and tiie principal to her or to her order
by note, or writing under her hand,"
created a trust for the wife's separate
use. Hulme v. Tenant, 1 Bro. C. C. 16.
So in the judgment of Sir William
Fortescue, Master of tlie Rolls, did the
words, " that she should enjoy and re-
ceive the issues and profits of the
estate." Tyrrell v. Hope, 2 Atk. 561.
"For to wliat end should she receive
it,"' says tiiis judge, "if it is the prop-
erty of the husband the next mo-
ment ? " And Lord Lougliborough
gave a like effect to a direction that
certain property should be delivered
up to a married woman " whenever she
sliould demand or require the same."
Dixon V. Olmius, 2 Cox, 414. A simi-
lar construction has also been applied
to the words, " to be laid out in what
she (the wife) shall think fit." Atch-
erley v. Vernon, 10 Mod. 518. See
Blacklow ;; Laws, 2 Hare, 52. And a
legacy to a married woman, " her re-
ceipt to be a sufficient discharge to the
executors," has been held sufficient.
Warwick v. Hawkins, 13 E. L. & Eq.
174. A legacy added by a codicil to
the legacy given by a will is subject to
the incidents of the original legacy ;
and the separate use may be extended
by construction from the will to the
codicil. Day v. Croft, 4 Beav. 561.
Yet, on the other hand, the form of
expression will go far towards deter-
mining whether property is or is not
limited to the wife's separate use.
Vice-Chancellor Wigram, in a case be-
fore him not many years ago, was
forced to admit that while ruling out
certain property from the wife's sep-
arate use, on account of the testator's
insufficient langu.ige, he had a strong
opinion that he decided against the
real intention of the testator. Black-
low V. Laws, 2 Hare, 49. It is to be
observed, then, that courts of equity
will not deprive the husband of his
rights at law unless the words of them-
selves clearly import the intention to
163
§105
THE DOMESTIC RELATIONS.
[part II.
husband on the alleged ground of her having separate estate,
exclude liim. Peachey, Mar. Settl.
281 ; Tyler v. Lake, 2 Russ. & M. 188;
Massey v. Parker, 2 M. & K. 181 ;
Macq. Hus. & Wife, 309. A mere trust,
therefore, to pay the income of a fund
to a certain married woman, or to her
and iier assigns, is not sufficient to pre-
vent the marital rights from attaching.
Lumb f. Milnes, 5 Ves. 517 ; Brown v.
Clark, 3 Ves. 106 ; Spirett v. Willows,
11 Jur. N. s. 70. Nor is a devise to a
certain widow's sole use and benefit
without reference to a future husband.
Gilbert v. Lewis, 1 De G. J. & M. 38.
Even a gift to a wife " for her use " has
been held not a sufficiently unequivo-
cal declaration of an intention to create
a trust for the separate use of the wife.
Jacobs ?'. Amyatt, 1 Madd. 376 n. ;
Wills V. Sayers, 4 Madd. 411; Roberts
V. Spicer, 5 Madd. 491. Some words
have greater efficacy than others.
Thus it has been said that the word
" enjoy " is very strong to imply a
separate use. Sir William Fortescue,
in Tyrrell v. Hope, 2 Atk. 558. And
much controversy has arisen in the
English chancery courts over the use
of the word "own" as synonymous
with " sole," the result of which is to
establisli that there is a substantial dis-
tinction between a gift to a wife "for
her sole use " and a gift " for her own
use," or " for her own use and benefit."
See Lord Brougham's judgment in
Tyler v. Lake, 2 Russ. & M. 187 ;
Jolmes V. Lockhart, 3 Bro. C. C. 383 n. ;
Peachey, Mar. Settl. 282. And it hav-
ing been decided that the word " own "
had no exclusive meaning, it was next
determined that a trust to pay the pro-
ceeds of real estate into the proper
hands of a married woman for her own
use and benefit was not a gift to the
wife's separate use, the word " proper "
being the Latin form of the word
" own," and therefore payment into
the wife's proper hands signifying the
same thing as into her own hands.
Tyler v. Lake, 2 Russ. & M. 187. Lord
Brougham thus in effect overruled a
164
decision of Lord Alvanley, who had
held that the use of the word " proper"
would create a separate use. Hartley
r. Hurle, 5 Ves. 545. Tliis later con-
struction, coming from a jurisdiction
so conclusive, has since prevailed,
though not without some expressions
of dissatisfaction in the lower courts.
See Vice-Chancellor Wigram, in Black-
low V. Laws, 2 Hare, 49 ; Macq. Hus.
& Wife, 309 ; Peachey, Mar. Settl. 282.
And again, language of tlie donor, ex-
pressive of his intent to limit property
to the wife's separate use, may be con-
trolled by other words or provisions so
as to negative such a supposition.
This principle was applied to the wife's
disadvantage in a case where others
were made the objects of the bounty
with her. Wardle v. Claxton, 9 Sim.
524. And see Gilchrist v. Cator, 1 De
G. & S. 188. Yet it has been held that
a gift to the wife's separate use was
good, although the support and educa-
tion of children was annexed as a
charge upon it. Cape v. Cape, 2 You.
& Coll. Excli. 54.3. And see n. to Macq.
Hus. & Wife, 310. The expression
" her intended husband " may apply
to a second husband, where there are
words limiting income to the wife's
separate use during her life, for this
latter expression controls the former.
Hawkes v. Hubback, L. R. 11 Eq. 5.
Whether the word " sole " is of it-
self sufficient to create a separate use
is doubtful. Different opinions have
been expressed on this point. But in a
recent case before Vice-Chancellor Kin-
dersley the word "sole" was deemed
insufficient, in a devise of property to
a female, her heirs, executors, adminis-
trators, and assigns, "for her and their
own sole and absolute use and benefit,"
to create a separate estate ; since the
word " sole," as here used, had refer-
ence not only to the female herself, but
to her heirs, executors, administrators,
and assigns, who certainly could not be
considered beneficiaries under any such
trust. Lewis v. Mathews, L. R. 2 Eq.
CHAP. VIII.] wife's separate PROPERTY. § 106
in regard to which she is a feme sole, the husband, by making
her a party, admits it to be her separate estate.^
§ 1U6. Separate Use binds Produce of Fund. — A gift of the
produce of a fund is to be considered a gift of that produce in
perpetuity ; hence it is a gift of the fund itself, nothing appear-
ing to show a different intention. Therefore a bequest of a fund
to a woman, with the interest thereon, to be vested in trustees,
— the income arising therefrom to be for her separate use and
benefit, — vests the capital for her separate use.^ Where a
testator simply directs the investment of a fund in trustees, for
the benefit of a married woman, independent of the control of
her husband, this is enough to carry the whole fund to her
separate use.^ So it is held that where stock was given to
trustees upon trust, to pay the dividends to a married woman
for her separate use, and there was no limitation of a life inter-
est, an absolute interest in the capital passed to her, which she
could dispose of as a feme sole.^
It is fair to suppose that in equity the wife's separate use
binds the produce of the fund as well as the fund itself. There
are some cases decided in the courts of common law where the
contrary has been maintained, and to this effect, that, although
a wife may be entitled to separate property, the dividends aris-
ing therefrom vest in her husband.^ This is no reason, however,
why the equity doctrine should not be as we have stated ; in-
deed, if it were otherwise, as an English writer has observed,
the object of separate use would be in many instances frus-
trated.'' What the wife saves out of her separate income, too,
if its identity be properly preserved, is in equity her separate
estate." It must only be observed that income or produce of
177. And see Troutbeck v. Boughey, ^ See Macq. Hus. & Wife, 291 and n.
L. R. 2 Eq. 584; 24 Ch. D. 703. And see dictum of Sir Launcclot Shad-
1 Earl V. Ferris, 19 Beav. 69. well, in Molony v. Kennedy, 10 Sim.
2 Adamsoii v. Armitafje, 19 Ves. 254 (quoted ib.), which intimates that
416; Macq. Hus. & Wife, 311 ; Trout- this is the equity doctrine; per Lord
beck V. Boughey, L. R. 2 Eq. 534. Hardwicke, Cliurchill v. Dibhin, 9 Sim.
2 Simons r. Howard, 1 Keen, 7, per 447 n. Contra, Peachey, Mar. Settl. 268,
Lord Langdale. where cases are cited which do not sup-
* Elton V. Shephard, 1 Bro. C. C. port the statement in the text.
532; Haig v. Swiney, 1 Sim. & Stu. 487. '^ Barrack v. M'Culloch, 3 K.ay & J.
5 Tugman y. Hopkins, 4 Man. & Gr. 110; Brooke v. Brooke, 4 Jur. n. s.
389; Carue v. Brice, 7 M. & W. 183. 472.
165
§ 107 THE DOMESTIC RELATIONS. [PART II.
the fund, if once in the husband's hands, may readily be pre-
sumed to have been bestowed upon him by the wife, either for
himself or the family expenses.
§ 107. Separate Use exists only during Marriage; Exceptions;
Ambulatory Operation. — The quality of separate estate ceases
on the death of the wife ; and if her husband survives her, he
becomes entitled to the property as though it had never been
settled to her separate use. For the separate use was created
only for the marriage state, and was not designed to extend be-
yond the dissolution of marriage, or when the necessity of the
trust should be no longer felt. Thus clioscs in possession settled
to the wife's separate use vest in the husband absolutely upon
his survivorship.^ The wife's separate clioscs in action may be
recovered by him in his right as her administrator.^ So, doubt-
less, her separate chattels real go to the husband as survivor.
In short, the wife's separate property, upon the wife's death, is
freed from its peculiar incidents, and becomes like any other
estate of hers which may remain at her decease.^ And it seems
clear that the husband may be tenant by the curtesy, as usual,
if not expressly excluded from all marital interest.^
Yet the wife may defeat her husband's claim after her death
by exercising her power of disposition during her lifetime, — a
power w^hich is recognized in a married woman so far as her
separate property is concerned.^ So, too, by the terms of the
trust, the husband's rights on her decease may be prevented
from attaching.^
1 Molony v. Kennedy, 10 Sim. 254. eluded from curtesy. Moore v. Web-
2 Proudley v. Fielder, 2 .Myl. & K. ster, L. R. 3 Eq. 267.
67 ; Drury v. Scott, 4 You. & Coll. Ch. & Macq. Hus. & Wife, 2b5. See
204 ; Stead v. Clay, 1 Sim. 294. post, § 110.
3 Macq. Hus. & Wife, 285 ; Peacliey, ^ Johnstone v. Lumb, 15 Sim. 308.
Mar. Settl. 278 ; Sloper v. Cottrell, 6 Thus, where a wife entitled to separate
El. & Bl. 501 ; Bird v. Pegrum, 13 property for life, under a settlement
C. B. 650; s. c. 17 Jur. 579. which directed that all the trust prop-
* Lusliington v. Sewell, 1 Sim. 548 ; erty, and all the income thereof " re-
Roberts i'. Dixwell, 1 A tk. 606, per Lord niainiim unapplied" at lierdcatli, should
Hardwicke ; Macq. Hus. & Wife, 287 ; go in a certain manner, left her hus-
A])pIeton V Rowley, L. R. 8 Eq. 130; band some years before her death ; and
Cooper v. Macdonald, L. R. 7 Ch. D. the trustees received the income regu-
288. Otherwise, where by the terms larly, and paid it into a bank in their
of the separate use the husband is ex- own names, with her privity, making
166
CHAP. VIII.] wife's separate PROPERTY. § 108
Since the separate use can exist only in the marriage state, it
may sometimes have an ambulatory operation, so as to be effect-
ual according as the woman happens at the time to be covert ox
sole. Supposing, then, a gift be made to the separate use of a
woman who is single at the time the gift takes effect, it is clear
that she shall enjoy the gift absolutely and without restraint.
But if she afterwards marries, will the separate use operate ?
It will, unless by the terms of her marriage settlement she ex-
pressly renounces it.^ Supposing, however, she outlives her
husband, the separate use ceases as in other cases, since it can
only be effectual during coverture. But if she marries again,
the separate use, consistently with its intention, revives once
more ; and so onward, from time to time, ceasing and reviving
alternately upon each alteration of her personal condition,^ with,
however, this reservation, that if confined by intendment to a
particular husband or a particular coverture, the separate use
ceases to operate when that marriage ends.'^
§ 108. Wife's Right to renounce Separate Use, &c. — A single
woman, having a gift expressed to be to her separate use, may
renounce such separate use upon her marriage. This will be
readily admitted. Yet the courts construe an act of this sort
strictly.* The evidence must be clear in all cases, that a single
woman marrying has renounced her separate use ; for it will
not be presumed that she means, by the mere fact of matrimony,
to relinquish her control of the property. But antenuptial set-
tlements may be made on reasonable terms by the parties con-
templating marriage. And there is nothing to prevent the
operation of a trust for separate use from being confined to a
remittances to her as slie required inon- i Tullett v. Armstrong, 1 Beav. 1 ;
ey ; and upon tlie wife's death the Anderson v. Anderson, 2 Myl. & K.
sum of £888 was found among her 427 ; Macq. Hus. & Wife, 305.
effects, and a balance of £2,049 accu- '■^ Macq. Hus. & Wife, 306; Tullett
niulated income stood to tlie credit of i\ Armstrong, 1 Beav. 1, affirmed bj
the trustees in the bank; it was held Lord Cottenham, 4 Mjl. & Or. 377;
by the Vice-Chancellor of England Hawkcs v. Hubback, L. R. 11 Eq. 5.
that the former went to the surviving ^ 2 Perry, Trusts, §§ 652, 65.3, and
husband by virtue of his marital right, cases cited; Benson v. Benson, 6 Sim.
while the latter was bound by the 26 ; 1 Ch. Ca. .307 ; 1 Vern. 7 ; Moore
trusts of the deed as the result of in- v. Harris, 4 Dr. 33.
come "remaining unapplied" at lier * Johnson v. Johnson, 1 Keen, 648;
death. lb. Macq. Hus. & Wife, 306.
167
§ 109 THE DOMESTIC RELATIONS. [PART II.
particular coverture, where all concerned are so minded. In
such cases, however, the wife marrying again can always stipu-
late for her separate use/*
It is possible that a provision for the wife's separate use may
fail, as against third parties, bona fide purchasers, wherever the
husband can dispose of the property without their having notice
of the trust.^
§ 109. Separate Use and the Marital Obligations. — It would
appear to be the English doctrine that the marital obligations
of the husband are not essentially altered by her right to sepa-
rate property. Thus, it is held that the wife is not bound to
maintain her husband out of her separate fortune, nor to bring
any part of it into contribution for family purposes.^ And
there seems to be no legal authority to support the notion that
the husband's liabilities on her general debts are thereby altered
during their joint lives.* The common-law liabilities of the
husband, to be sure, rest in great measure upon his right to his
wife's property ; yet we may admit that it would be difficult to
adjust any new rule except upon partnership principles. If one
marries a rich wife, therefore, who chooses to hoard her savings
by herself, bequeath all to others, and compel him, a poor man,
to pay for everything she or the children need, all their lives,
he assuming her antenuptial debts besides, it is possible that
even equity will deny him relief. We here suppose that neither
legislation nor the wife's own disposition of her separate property
affects the question.
Moreover, the wife is not bound to maintain, educate, or pro-
vide for her children out of her separate property ; and even
though she elope from her husband, equity will not lay hold of
her estate for that purpose.^ And yet, whenever a settlement
of the wife's equity is decreed, where the husband or his legal
representative seeks to recover for himself her choscs in action,
1 Macq. IIus. & Wife, 307. See « See Macq. Hus. & Wife, 5^88. But
Knight I'. Knight, 6 Sim. 121 ; Bradley see ir^fra, cs. 9-12 ; In re Baker's Trusts,
V. Hughes, 8 Sim. 149 ; Benson v. Ben- L. R. 13 Eq. 168.
son, 6 Sim. 126. & Hodgden v. Hodgden,4 CI & Fin.
2 Parker v. Brooke, 9 Ves. 583 ; 323, reversing the decree of the court
Macq. Hus. & Wife, 291. below. But see legislation in Eng-
3 Lamb v. Milnes, 5 "Ves. 620. land, § 111.
168
CHAP. VIII.] wife's separate PROPERTY. § 110
the children of the marriage are included within its benefits ;
though, to be sure, the wife may waive the claim altogether
without reference to them.^
§ 110. Clause of Restraint upon Anticipation. — The clause
of restraint upon anticipation is an important element in the
doctrine of the wife's separate use, as administered in England.
This clause was sanctioned by Lord Thurlow ; ^ is frequently to
be met with in modern conveyances ; and is pronounced by
Mr. Macqueen, and by eminent English jurists, a salutary
clause which takes from the wife the power of bringing ruin
upon herself.^ The restraint applies not only to personal but
also to landed property* It may be imposed equally upon
estates for life or in fee.^ It prevents the fund from being
attached in execution upon process against husband and wife.^
It makes covenants ineffectual to settle after-acquired property
thus embraced.'^
The name of this important clause originates in the circum-
stances under which it was first applied.^ The general purport
of this expression is that the wife shall be prohibited the antici-
pation of the income of her separate property or the anticipation
of the capital of the fund. Yet the word " anticipation " need
not be used in clauses of this sort, nor is any particular form of
expression necessary.^ Like the separate use itself, this clause
of restraint on anticipation exists only in the marriage state ;
1 See Schouler, Hus. & Wife, §§ 160- « Cliapman v. Biggs, 11 Q. B. D. 27 ;
162; supra, § 85, as to tlie wife's equity 14 Q. B. L). 973.
to a settlement. ^ Gibson v. Way, -32 Ch. D. 361.
2 Miss Watson's Case. See Pybus See 31 Ch. 1). 275, 596 ; .35 Cli. D. 4.
V. Sniitli, 3 Bro. C. C. 340, «. This « g^p Pybus v. Smith, 3 Bro. C. C.
doctrine was afterwards affirmed in 340 ; Jodrell v. Jodrell, 9 Beav. 59.
Jackson v. Hobhouse, 2 Mer. 487, by Under Act 44 & 45 Vict. c. 41 (1882)
Lord Eldon. the court is permitted to sanction tlie
'^ See Macq. Hus. & Wife, 312. binding of a wife's interest with her
* Baggett V. Meux, 1 Phil. 627, per assent, wherever it appears for her
Lord Lyndhurst; 1 Coll. 138; Macq. benefit, notwithstanding this clause of
Hus. & Wife, 312 ; Peachey, Mar. Settl. restraint.
284. Nor can she join her husband in 9 Per Lord Cranworth, In rf Ross's
a power of attorney to receive or sue Trust, 1 Sim. 199; Doolan r. Blake, 3
for moneys tied up by this clause. Jr. Ch. 349 ; Peachey, Mar. Settl. 287 ;
Kenrick v. Wood, L. R. 9 Eq. 333. Tullett v. Armstrong, 1 Beav. 1 ; Steed-
^ lb. man v. Poole, 6 Hare, 193 ; Schouler,
Hus. & Wife, § 202, and cases cited.
169
§ 111 THE DOMESTIC RELATIONS. [PART II.
it does not prevent or interfere with the receipt of regular in-
come ; and property vested in a single woman she may dispose
of absolutely, despite such limitation, so long as she remains
unmarried ; but upon her coverture, while retaining such prop-
erty, the separate use and the restraint upon anticipation attach
and become effective together, cease together upon her widow-
hood, and revive together upon her remarriage.^
§ 111. Separate Use in Common-Law Courts; English Married
Women's Acts. — Although the wife's separate use is the crea-
ture of equity, and specially consigned to its watchful keeping,
courts of law will sometimes afford it protection. This seems
to be, however, only in cases where a trustee is interposed to
hold the legal estate ; for since the common-law courts main-
tain their own maxims, there should be some person designated
to hold the fund for the wife ; and such person will be consid-
ered as the legal owner so as to save the property from attach-
ment and sale for the husband's debts.''^
Under a recent act of 1870 important changes are made with
the view of creating a statutory separate estate in married
women.^ Legislation, still later, repeals the act of 1870, and
makes a new and more comprehensive property act of 1882, in
favor of the wife's independent capacity.^
1 Tullett V. Armstrong, 1 Beav. 1 ; sonal property coming to her not ex-
4 Myl. & Cr. 377; Schouler, Hus. & ceeding £200 ; rents and profits of her
Wife, § 202 ; Clarke v. Jaques, 1 Beav. freehold property ; policies of insur-
36; Dixon i;. Dixon, 1 Beav. 40. See, ance for benefit of wife (trusts for
as to the income of accumulations, benefit of wife and children being also
Thomas v. Spencer, 30 Ch. D. 183. permitted).
And as to rights to receive capital, see This moderate act is doubtless the
27 Ch. D. 411. result of influences such as were first
2 See Izod v. Lamb, 1 Cr. & J. 35; manifested in the United States. The
Davison v. Atkinson, 5 T. R. 434; American legislation on this subject
Dean !'. Brown, 2 Car. & P. 62; Macq. long antedates the English. Other
Hus. & Wife, 291. provisions are found in this act, whose
'^ See Act 33 &34 Vict. c. 93 (1870) ; appropriate consideration belongs to a
Queen v. Carnatic H. R. Co.,L. R. 8 Q. later chapter.
B. 299. This act declares that wages * See Act 45 & 46 Vict. c. 75. Ante-
and earnings of a married woman shall nuptial debts and liabilities of the wife
be her separate property ; also, her are thus provided for at length ; loans
deposits in savings banks (with a pro- by wife to husband; maintenance of
viso) ; also, upon the observance of children and husband out of separate
certain formalities, her property in the estate in deserving cases ; questions of
funds, joint-stock companies, &c. ; per- title to property; etc. As to the status
170
CHAP. IX.] wife's separate PROPERTY. § 112
CHAPTER IX.
THE wife's separate PROPERTY; AMERICAN DOCTRINE.
§ 112. Early American Rule. — The doctrine of the wife's
separate estate is one of peculiar growth and development in
this country, though doubtless originating in the maxims of the
English chancery, and deriving much of its strength from the
splendid accomplishments of Langdale, Thurlow, and Eldon, in
their own land. What such men and their successors effected
by judicial policy we have carried into our statutes ; nay, we
have gone further. In England the equitable rights of married
women are the triumph of the bench ; with us the early efforts
of the bench have been eclipsed by the later achievements of
the legislature, and the judge follows the lawgiver to restrain
rather than enlarge. There, in historical sequence, it was proper
to study first the equitable doctrine of separate property ; here
the statutory doctrine may well take precedence.
When this country was first settled, the separate use was
but little understood in England. Its development there was
gradual, and its final establishment of a later date. Our ances-
tors brought over the common law with them ; but for equity
they had little respect. True, it cannot be said that, by the
jurisprudence of a single State, property bestowed upon a mar-
ried woman to her separate use, free from the control and inter-
ference of her husband, would remain subject, notwithstanding,
to his marital dominion ; but prior^ to the late married women's
acts there were, in many States, no judicial precedents to com-
bat such an assumption. That such trusts might be created
of a married woman it renders lier ca- and being sued on the footing of a /erne
pable of acquiring property and of ren- We. And see, as to evidence of spouses,
dering herself liable on contracts to the under Act 47 & 48 Vict. c. 14.
extent of her property, and of suing
171
§ 112 THE DOMESTIC HEIiATIONS. [PART II.
was not denied ; but whether there were courts with authority
to enforce them appeared frequently doubtful.^ In the New
England States scarcely a vestige of the separate use was to be
found.2 New York, with such eminent chancellors as Kent and
Walworth, took the lead in building up an equity system par-
allel with that of England ; and in the reports of this State are
to be found most of the leading cases and the ablest discussions
of what may be termed American chancery doctrines. New
Jersey recognized the separate use, and her chancery court
exercised liberal powers. In Pennsylvania the doctrine was
recognized to some extent. The courts of Maryland, Virginia,
and the Southern States generally, liad frequent occasion to
apply the separate-use doctrine ; none more so than those of
North and South Carolina. And it may be remarked that the
aristocratic element of society in that section of the country,
also a prevalent disposition for family entails, marriage settle-
ments, and fetters upon the transmission of landed property,
aided much in developing therein the English chancery system.
So was it in Kentucky and Tennessee, States founded upon like
institutions. But as to Ohio, Indiana, Illinois, and the other
States erected from what was formerly known as the Northwest
Territory, society was modelled more after New England, and
we find no clear recognition of the wife's equitable separate use.
Louisiana, and such contiguous States as were originally gov-
erned by French and Spanish laws had more or less of the
civil or community system ; and to these States English equity
maxims had at best only a limited application. Such, then, is
the wife's separate use, viewed in the light of judicial prece-
^ It is true tliat the general recog- cially favored chancery jurisprudence,
nition here of the wife's separate use The want of a general recognition of
has been presumed by our text-writers, the wife's separate use, as unfolded in
See 2 Kent, Com. 16*2; Reeve, Dom. England, aids in explaining the curious
Rel. 1G2 ; 2 Story, Eq. Juris. § 1378 ft fact that our States were legislated
seq. We contine our observation to into a system which the English chan-
judicial precedents. What (^iianccUor eery had felt competent to rear un-
Kent has to say on the American equity aided.
doctrines in his work must be taken by ^ Jones v. ^^tna Ins. Co., 14 Conn,
the general student with some qualifi- 501, intimated that the married woman
cations, inasmuch as tiie learned writer could not, in Connecticut, be the inde-
draws largely upon his judicial opin- pendent owner of property. But see
ions rendered in a State which espe- Pinney v. Fellows, 15 Vt. 525 (1843).
172
CHAP. IX.] wife's separate PROPERTY. § 113
dents, as known in the United States until very nearly the
middle of the nineteenth century.^
But where recognized and enforced at all, the strict American
rule was borrowed from that of England ; and such, too, has
been the later development, as we shall show hereafter.^
§ 113. The Late Married Women's Acts; Social Revolution.
— The wife's separate use, as an American system, or rather as
the system of certain American States, had thus progressed
when our local legislatures took the whole subject actively in
hand. The American equity courts had followed the English
precedents pretty closely, but without displaying the same
vigor and boldness. None of our reported decisions on the
subject of the wife's equitable separate property had attracted
popular attention or served to bring out the discussion of
strong leading principles, though covering a period of sixty years
down to nearly the middle of the present century. During
the twenty-five years preceding 1848, a change in public opin-
ion had been gradually wrought in this country and in England,
though with us more rapidly than abroad. The married woman
of America turned to the legislature rather than the courts of
her State for a more complete marital independence, for the
right to control her own property, for freedom from the bur-
dens of coverture. In shaping popular sentiment, doubtless,
the annexation of territory lately governed by the principles
of Eoman law had considerable influence, particularly in the
States adjacent to Louisiana ; still more in a national sense did
our rapid advancement as a self-governed nation, and the
spread of public education, of independence in life and man-
ners, and of equal social intercourse of the sexes, help on the
new reform. The year 1848 saw a wondrous revolution ef-
fected in the foremost States of this Union as to the property
1 See U. S. Eq. Dig. Hus. & Wife, ren v. Haley, 1 S. & M. CIi. 647; Hani-
12 ; Reade v. Livingston, 3 Jolins. Ch. ilton v. Bisliop, 8 Yerg. -So ; Griffith v.
481 ; Metli. Ep. Cliurch v. Jaqnes, 1 Griffith, 5 B. Monr. 1 13 ; McKennan v.
Johns. Ch. 65; Rogers v. Rogers, 4 Pliillips, 6 Whart. 571 ; Gray i?. Crook,
Paige, 516; Vernon v. Marsh, 2 Green 12 Gill & J. 236; Howard v. Menifee, 5
Ch. 502 ; Steel v. Steel, 1 Ired. Eq. 4-52 ; Pike, 6G8.
Jackson v. McAliley. Speers Eq. 303; 2 gg^ pfygf^ ^s to equitable separate
Boykin v. Ciples, 2 Hill Ch. 200, 204; property of married women, §§ 123-
Hunt V. Booth, 1 Ereem. Ch. 215 ; War- 129.
173
§ 113 THE DOMESTIC RELATIONS. [PART II.
rights of married women ; and this revohition has since ex-
tended to every section of the country. The influence of these
changes has also been felt abroad ; and a like reform was
pressed in the English Parliament about 1870, whose im-
mediate result was the statute to which we have already
alluded.^
In 1821 the legislature of Maine had authorized the wife,
when deserted by her husband, to sue, make contracts, and
convey real estate as if unmarried, prescribing the mode of
procedure in such cases. A like law previously existed in
Massachusetts.^ These appear to have been the earliest of the
married women's acts, properly so called : the first-fruits of the
modern agitation on woman's rights. The example of Massa-
chusetts and Maine in this respect was soon imitated elsewhere.
New Hampshire, Vermont, Tennessee, Kentucky, and Alichigan,
all passed important laws of a similar character before 1850.
The independence of married women whose husbands were
convicts, runaways, and profligates became thus the first point
gained in the new system. In Massachusetts and Ehode Isl-
and the wife's separate use in life-insurance contracts for her
benefit was an object of special solicitude ; then, in 1845, the
former State turned its attention further to a public recognition
of marriage settlements and trusts for the wife's separate ben-
efit, extending the equity jurisdiction of its courts for that
purpose.^ The right of a married woman to dispose of her
property by will was legalized in Illinois, Pennsylvania, ]\Iich-
igan, and Connecticut about the same time. In Connecticut,
Ohio, Indiana, and Missouri, the first reforms appear to have
been directed towards exempting the wife's property from lia-
bility for her husband's debts, rather than giving her a complete
dominion over it.'*
1 See 3 Juridical Society Papers enactments. These are indications of
(1870), part 17 ; Act 3.3 & 31 Vict. c. wliat tlie text has already stated ; that
93, 1870, under § 111, supra. trusts for separate use and equity ju-
2 See Rov. Sts. Maine (1840), p. risdiction on the wife's behalf were
341; Rev. Sts. Mass. (1830), pp. 485, little recognized in that section when
487. the married women's agitation cora-
8 A New Hampshire act in 1846 cop- menced in the United States.
ied these provisions; and a statute of * See 2 Bright, Hus. & Wife, Am.
Rhode Island in 1844 made similar ed. 1850, p. 627 et seq., where married
174
CHAP. IX.] wife's separate PROPERTY. § 113
The Eoman principle of an independent estate in the wife, as
modified by the more modern French and Spanish community
law, prevailed in Louisiana at the time of its admission into the
Union ; and like traces appear in the legislation of Florida,
Arkansas, Texas, and other adjacent States formerly under French
and Spanish rule. So was the doctrine of separate estate pro-
mulgated by Mississippi statute as early as 1839.^ And in other
Southern States, as Alabama and North Carolina, where chancery
jurisprudence was well established, appeared laws investing the
courts with larger powers in matters of this sort.^ Alabama
and Mississippi appear to have first postponed the husband's
liability for his wife's antenuptial debts to her separate estate.^
But the sweeping changes affected by the legislature of New j^
York in 1848 deserve more than a passing notice. The debates t
of the constitutional convention of that State in 1846 evinced
the growing desire for a radical reform in the property rights of
married women ; and the advocates of the movement, failing in
their attempt to secure an article of amendment to the State
constitution on their behalf, next addressed themselves to the
legislature, and with success. On the 7th of April, 1848, was
enacted a law " for the more effectual protection of married
women," which provided that the real and personal property of
any female already married, or who may hereafter marry, which
she shall own at the time of marriage, and the rents, issues and
profits thereof, shall not be subject to the disposal of her hus-
band, nor be liable for his debts, and shall continue her sole
and separate property as if she were a single female ; and that
any married female may lawfully receive and holc^ property in
like manner from any person other than her husband, whether
by gift, grant, devise, or bequest. This statute, passed at such
a time by the foremost State in the Union, — a State thoroughly
northern in its institutions, while the recognized champion of
chancery principles, — could not fail to make a deep national
women's acts are cited by Mr. Lock- settled territory surrounding it. Tiie
wood; 2 Kent, Com. 130, n. codes of these States were all disfig-
1 See 2 Briglit, Hus. & Wife, Am. ured by " cliattcl " provisions, which
ed. 1850, p. 627 et spq. The influence of detracted much from the merits of a
a large commercial city like New Or- policy otherwise humane to the wife,
leans was doubtless felt in the sparsely ^ 2 Bright, ih. ^ lb. (1846).
175
§113
THE DOMESTIC RELATIONS.
[part II.
impression.^ A parallel movement had meanwhile progressed
in Pennsylvania ; and in that State an act of the legislature,
dated only four days later, conferred substantially the same
rights of property upon married women, though expressed in
different language.^
Trom this time forth the revolution became rapid, and has
since extended to all the States, Virginia being the last to yield.
And the work of legislative change still goes on. Scarcely a
year passed between 1850 and 1870 without some new married
women's acts added to the local statute books ; ^ numerous
other modified acts have since been embodied in the codes ; *
and with regard to woman in general, the constant tendency
has been to enlarge her freedom of action, and open to her
sex pursuits hitherto closed against them.
1 We give the substance rather than
the language of this statute. See 2
Bright, Hus. & Wife, Am. ed. 1850,
Lock wood's note, 581 et seq. Tliis stat-
ute was afterwards considerably modi-
fied by acts of 1849, c 375, and 1860, c.
80, § 1.
'^ Bright, ib., p. 648; Laws Penn.
1848, pp. 536-538. It should be said
that both Maine and Micliigan had en-
acted laws in 1844, giving enlarged
powers to the wife to hold and dis-
pose of separate property, thus antici-
pating some of tlie statutory clianges
•both in New York and Pennsylvania.
Eev. Stat. Mich. (1846) p. 340; Maine
Statutes, March 22, 1844.
^ Tlie acts now in force, many of
them perplexing, which need not here
be detailed, will be found summarized
to 1882 in Schouler, Hus. & Wife, Ap-
pendix. More or less liberality is
shown in different States in the legis-
lative grant of separate property, but
the tendency on the whole is to place
the married woman on the footing of a
feme sole in respect of property and
kindred rights of suit and contract.
In the Southern Law Review, vol. 0,
p. 633, will be found an instructive arti-
cle by Professor Henry Hitchcock, com-
menting upon marital property rights
176
as defined by American statutes in
force in 1880. Detailing the statutory
changes which have occurred, the
author calls attention to the fact that
in Connecticut, beginning with the act
of 1845, there were eleven successive
statutes passed at intervals during the
twenty-one years ending in 1866. And
see Jackson r. Hubbard, 36 Conn. 10,
on this point. Afterward anotlier stat-
ute was passed in this State in 1869,
and still anotlier in 1872, and then, at
the general revision of the statutes in
1875, a further amendment took place.
This is a marked, but not exceptional
instance of State innovations in the
law of Husband and Wife. Between
18.50 and I860 inclusive, notes the
writer, the following States began their
married women's legislation, some
boldly, others timidly : Indiana, Mis-
souri, New Jersey, Kansas ; Oiiio and
Illinois followed in 1861, and other
States successively in subsequent j-ears.
In 1869 Congress enacted, for the bene-
fit of married women in tlie District of
Columbia, one of the most radical laws
on the subject. The last State to fall
into line was Virginia, in 1877.
* See Stimson, Am. Stat. Law,
§§ 6420-6422.
CHAP. IX.] wife's separate PROPERTY. § 114
§ 114. Scope of Married "Women's Acts; Constitutional Points.
— The main principles toucliing the acquisition of a statutory
separate property by the wife, as an American system of posi-
tive law, we shall now consider as fairly as circumstances
permit. And, first, it may be remarked in general that these
American married women's acts are designed for woman's bene-
fit, and that they do not limit, but rather extend, her right bene-
ficially to hold separate property.^ Where she is held to be
restricted, by the statute at all, it is generally with reference to
the right of disposition, and in order that others may not sub-
ject it to the fulfilment of her engagements.^ We shall pres-
ently see, moreover, in the course of our exposition, that the
doctrines of an equitable separate estate in the wife are gener-
ally invoked at this day as furnishing a system available for
her advantage, wherever (as rarely happens) the statutory priv-
ileges, in any particular instance, prove less adequate for estab-
lishing her independent property relations ; the main policy of
the married women's acts being not to supersede the wife's
equitable rights, but to enlarge her legal status, and correct
the old anomaly which left her a person in equity but none
in law.
These statutes are not subject to mere technical construction,
but the will of the legislature should be fairly interpreted.
The legislative will is not presumed to be so exerted as to
operate retrospectively. " A retrospective statute, affecting
and changing vested rights," observes Chancellor Kent, " is
very generally considered in this country as founded on un-
constitutional principles, and consequently inoperative and
void."^ The whole current of American decisions confirms
that statement ; and thus is it with our married women's acts,
for they necessarily reduce the property rights of the husband
1 Blevins v. Buck, 26 Ala. 292. deprived of property " without due
2 See Davis v. Foy, 7 S. «& M. 64 ; process of law," and against impairing
Pond V. Carpenter, 12 Minn. 4.30; Pip- the obligation of contracts — have a
pen V. Wesson, 74 N. C. 437. The sub- similar bearing. An act which author-
ject of the wife's right of disposition izes married women to contract and
is discussed in a later chapter. be contracted with in the same manner
3 1 Kent, Com. 45-5. Various na- as if unmarried is constitutional. 15
tional and State constitutional provi- S. C. 581.
sions — as, e. g., that no one shall be
12 177
§ 114 THE DOMESTIC RELATIONS. [PART II.
as prevalent under the common law of coverture. The respec-
tive rights of a husband and wife, duly married, in property
acquired in any State, before fundamental law or appropriate
legislation therein has changed the old rule, must be governed
by the rules previously in force.^ Where a complete legal
estate in the wife's lands has already vested in the husband,
it is not taken away from him.^ The effect of a previous con-
veyance of land to husband and wife jointly is not changed in
respect of survivorship.^ The wife's personal property already
in possession or reduced to possession by the husband is his.*
And, to go still further, in her clioses in action, or unreduced
personalty which he is already at liberty to reduce, there is a
valuable existing interest capable of assignment and transfer,
— a vested right in the husband which a subsequent statute or
State constitutional provision cannot deprive him of, according
to the better opinion.^
The interest of a husband in remainder in property already
bequeathed to his wife on the contingency of surviving a life
tenant is held to be a vested right in such a sense that it can-
not be taken away by a married woman's act passed before the
contingency happens.^ And, in general, an interest vested in
jbhe husband, though in a certain sense contingent, which is not
a mere expectancy or bare possibility, like that of an heir from
his living ancestor who may yet disinherit him by will, but is
an interest already created and existing, which is descendible,
1 Carter v. Carter, 14 S. & M. 59 ; 202 ; Ryder v. Hulse, 24 N. Y. 372 ;
Sclioiiler, Hus. & Wife, §211, and cases Stearns v. Weathers, 30 Ala. 712;
Hted ; Eldridpe v. Prel)le, 34 Me. 148 ; Kirksey v. Friend, 48 Ala. 276. Such
Qiiigley lu Graham, 18 Ohio St. 42 ; is the rule with reference to a legacy
Farrell v. Patterson, 43 111. 52 ; Coomhs bequeathed to a wife, and taking effect
V. Read, 1(5 Gray, 271. So, rights ac- before the passage of an act vesting all'
quired subsequently under a foreign such property in the married woman :
government. Dubois v. Jackson, 49 Norris v. Beyea, 13 N. Y. 273, 288 ; or
111. 49. her distributive share, accruing previ-
2 Bouknight v. Epting, 11 S. C. 71. ously in an estate : lb. ; Kidd v. Mon-
And hence the husband's interest tague, 19 Ala. 619 ; Sperry v. Haslam,
therein can be taken and sold on 57 Ga. 412; or her stock, mortgages,
execution, lb. and incorporeal property generally.
, 3 Almond (,-. Bonnell, 76 111. 536. See Scliouler, Hus. & Wife, §211 n.,
* Buchanan v. Lee, 69 Ind. 117. commenting upon Clark i-. McCreary,
5 Sec Dunn v. Sargent, 101 Mass. 12 S. & M. 347, contra.
339; Westervelt r. Gregg, 12 N. Y. ^ Dunn u. Sargent, 101 Mass. 836.
178
CHAP. IX.] wife's separate PROPERTY. § 114
transmissible, and capable of transfer, is not to be taken away
by subsequent legislation in the wife's favor.^ In like manner
the husband's vested life estate by way of curtesy initiate in
his wife's lands cannot be taken away by legislative enactment,
any more than the wife's inchoate right of dower in her hus-
band's lands.^ Nor can any interest which a husband, before
the passage of the act, has in his wife's real estate be thus
devested.^ On the other hand, where the husband's liability for
his wife's antenuptial debts was fixed by marriage, a statute
removing that liability is not presumed to be retroactive.*
In some States all these constitutional perplexities are ob-
viated by legislation which embraces simply such property as
may be held or acquired by women marrying after the passage
of the act^ But the married women's acts or constitutional
amendments usually operate upon parties occupying already
the conjugal relation, as the statute language shows, and upon
those who as a fact are likely each to have married with some
reference to the pecuniary expectations of the other. To pro-
tect a husband's interests to any such extent, however, on any
constitutional suggestion on his behalf, the courts appear uni-
formly to decline ; for, as it has been observed, the marriage
contract does not imply that the husband shall have the same
interest in the future acquisitions of the wife that the law gives
him in the property she possesses at the time of the marriage,
but rather that she shall have whatever interest the legislature,
before she is invested with them, may think proper to pre-
scribe.^ In other words, while the husband's vested rights
arising under a marriage cannot be constitutionally disturbed
1 Gray, J., in Dunn ?'. Sargent, 101 v. Smith, 4 Sawyer, 17. See 87 N. C.
Mass. 336; Shaw, C. J., in Gardner v. 329; 17 S. C. 313; 12 Lea, 490.
Hooper, 3 Gray, 398. The increase of domestic animals
2 Rose V. Sanderson, 38 111. 247 ; purchased by the husband before the
Da3-ton r. Dusenbury, 2.5 N. J. P>q. 110. passage of the married woman's act
Rents of the wife's land, too, accruing belongs to him, and not to his wife,
before her death and prior to the new Hazelbaker v. Goodfellow, 64 111. 238.
constitutional provision as to married * Taylor r. Rountree, 1-5 Lea, 72.5;
women's rights, go with the curtesy, Desnoyer v. Jordan, 27 Minn. 295.
and not to the wife's heirs. Matthews ^ See Maclay v. Love, 25 Cal. 367-
v. Copeland, 79 N. C. 493. Cf. Rugh '•. Ottenheimer, 6 Greg. 231.
=5 Burson's Appeal,22Penn.St. 164; « Sleight r. Read, 18 Barb. 1-59;
Prall c. Smith, 31 N. J. L. 244 ; Wythe Southard v. Plummer, 36 M-e. 64.
179
§ 115 THE DOMESTIC RELATIONS. [PAET II.
by an alteration of the law, his mere expectancy, or the possi-
bility of some future acquisition by right of marriage, is subject
to any change which the legislature may choose to make prior
to the vesting of a right in the husband.^ A conditional lia-
bility of the wife's property for her husband's debts may thus
be repealed^ And whatever a married woman may have ac-
quired subsequently to the passage of an appropriate act by
gift, devise, bequest, and so on, becomes her statutory sepa-
rate estate, and all parties concerned must govern themselves
accordingly.^
A corresponding rule of constitutional limitations applies to
the rights and liabilities of the wife under these acts, as to her
title by gift or purchase, and as to her dominion over her prop-
erty generally,* of which we are to speak hereafter.
§ 115. Married Women's Acts as to Antenuptial Property and
Acquisitions from Third Persons. — Our married women's codes
fairly correspond in permitting the wife (subject to constitu-
tional limitations) to hold, in her sole and separate right, all
the property, real or personal, which she had at the time of
marriage, or has acquired thereafter from any person other than
her husband, by gift, grant, devise, or bequest. Eeal estate
thus held or acquired is regarded, not as land of which the
husband enjoys the beneficial use, but as her separate land.
Leasehold property may be thus held and enjoyed by the wife.^
Her personal property, whether in possession or lying in action,
is her own, provided the statute description be fulfilled. A
1 Cooley, Const Limitations, 360- the former power beyond what is in-
362; Holliday v. McMillan, 79 N. C. consistent with the new provision.
315; Gray, J., in Dunn f. Sarpent, 101 Frazer v. Clifford, 94 Ind. 482. But
Mass. 336 ; Hill v. Chambers, 30 Mich, as to a later act enlarging the rights
422. and legal capacities of the married
2 Fairchild v. Knight, 18 Fla. 770. woman, and repealing by implication
3 Cherokee Lodge v. White, 63 Ga. former reservations in her favor, see
742 ; Kevins v. Gourley, 95 111. 206. 104 111. 537.
4 Bryant v. Merrill, 55 Me. 515; ^ Vandevoort v. Gould, 36 N. Y.
Clark r. Clark, 20 Ohio St. 128 ; Lee 6.39 ; Prevot v. Lawrence, 51 N. Y. 219.
V. Lanahan, 58 Me. 478. See, further, As to land damages and equity to land,
Scliouler, Hus. & Wife, § 213. Where see State v. Hulick, 33 N. J. 307 ;
a later act limits the wife's former Sharpless v. West Cliester, 1 Grant,
power to incumber her separate prop- 257 ; Prout v. Hoge, 57 Ala, 28.
erty, it will not be taken as repealing
180
CHAP. IX.] wife's separate PROPERTY. § 116
married woman, transferring stock after marriage from her
maiden to her married name, may retain it as her separate
property.^ Notes, bonds, or other evidences of debt, and in-
corporeal property ,2 pass to her as well as corporeal property ;
animate as well as inanimate property ; ^ money, which of
course is personal property.^
§ 116. Change of Investment; Increase and Profits; Purchase,
&c. — Property acquired by exchange for the wife's statutory
property is presumably her separate property likewise, as where
one horse is exchanged for another.^ And since the income of
her separate fund is hers, property purchased with her savings
from interest arising out of her separate funds belongs to her as
her separate property.^ Upon a sale and exchange of the wife's
separate, as contrasted with her general, lands, courts are sedu-
lous to maintain that the proceeds belong to the wife.' And
where her realty, as in partition proceedings, is converted into
money, the proceeds, so long as they may possibly be traced,
stand in lieu of the real estate for her benefit.^ Equity comes
in aid of these principles, where statutory remedies are inade-
quate, and indeed of numerous kindred rules under the married
women's acts.
The natural increase and profits of the wife's statutory sepa-
rate property, including the progeny of her separate domestic
animals, and the rents of her separate lands or the crops, are
usually to be construed hers and at her disposal during mar-
riage, as well as the property which produced the increase and
profits.^ If it were rightly held otherwise, this would be on
some construction that the wife had, by her acts and conduct,
acquiesced in her husband's assumption of the ownership.^*^ In
short, all the product and increase of the original property will
1 Mason v. Fuller, 36 Conn. 160. » Williams v. McGrade, 13 Minn.
2 Selden v. Bank, 69 Penn. St. 424. 46 ; Hanson v. Millett, F,o Me. 184 ;
3 Cans r. Williams, 62 Ala. 41. Gans v. Williams, 62 Ala. 41 ; Hutch-
* Mitchell V. Mitchell, 35 Miss. 114. ins v. Colby, 43 N. H. 159; Stout v.
6 Pike V. Baker, 53 111. 163. Perry, 70 Ind. .501. But as to products
6 Merritt v. Lyon, 3 Barb. 110; 74 of the land occupied by the family, cf.
Ala. .346, 475. Moreland v. Myall, 14 Bush, 474; Hill
' Brevard v. Jones, 60 Ala. 221. v. Chambers, 30 Mich. 422.
* Nissley v. Heisey, 78 Penn. St. ^^ But see peculiar statute construed
418 ; Rice v. Hoffman, 35 Md. 344. in Chambers v. Richardson, 57 Ala. 85.
181
§ 117 THE DOMESTIC RELATIONS. [PART II,
become the wife's as long as she can follow and identify it,^
though expenditure of income for authorized family purposes
may well be presumed.^ Eents, profits, or income obtained from
a wife's statutory estate for which a husband is under no obliga-
tion to account, under local law, readily becomes his property.^
Whatever comes to the wife by her purchase or as the fruit
of her own labor is now secured to the wife by many codes, as
well as her gifts or inheritance from others during the marriage
state.** And the fact that the husband negotiates a purchase
on his wife's behalf gives his creditors no claim to the property.^
Such questions of the wife's title are questions of fact.^ The
wife's earnings may now be claimed by herself under most codes,
and they constitute her " property." ^
§ 117. Methods of Transfer from Third Parties under these
;^cts. — Where the property is such as can pass without a
written transfer or conveyance, a gift or sale to the wife, of
statutory separate property, may be by parol ; ^ although, of
course, all proof must consist with the idea that delivery is for
her sole and separate use, and not so as to admit the rights of
her husband.^ Where a conveyance or other written instrur
ment is needful, the expression must likewise conform to the
legislative intent ; and even where the language of the statute
is broad enough to dispense with such phrases as "sole and
separate use," the wife's only safety consists in having her name
used as that of grantee or transferee, instead of the husband's. ^°
Where it comes to an expression of separate use, under some
instrument made on the wife's behalf, an equitable separate use,
rather than a statutory separate use, may be said to have been
1 Holcomb V. Meadville Savings ^ U^ Penn. St. 124.
Bank, 92 Penn. St. 338. ^ Cf. §§ 81, 162 ; 52 Conn. 327.
2 See Chambers v. Richardson, 57 » Tinsley v. Roll, 2 Met. (Ky.) 509.
Ala. 85. ^ Walton v. Broaddus, 6 Bush, 328.
3 See Early v. Owens, 68 Ala. 171. ^'^ Pepper v. Lee, 53 Ala. 33 ; Slaugh-
* Stimson, American Stat. Law, ter i\ Glenn, 98 U. S Supr. 242 ; Kobin-
§ 6422. But the wife ought to be able son v. O'Neal, 56 Ala. 541 ; Campbell
to establish, against a husband's credi- v. Galbreath, 12 Bush, 459. Under
tors especially, that the purchase was the more sweeping local statutes a
made with her own means. 23 W. Va. conveyance to a married woman need
499. not state that she is to hold it to her
5 Rockford Bank v. Gaylord, 66 separate use. Sims v. Rickets, 35 Ind.
Iowa, 582. 181.
182
CHAP. IX.] wife's separate PROPERTY. § 118
created ; though authorities style it under some local acts as a
statutory separate estate.^
§ 118. Acquisitions from Husband not so much Favored. — -
But as concerns acquisitions of the wife from her husband, the
married women's acts by no means concur in making this her
statutory separate estate, as they do where the acquisition is
derived from some third party. Some local legislatures, to be
sure, have gone as far as this, but not perhaps the greater num-
ber.^ Hence we may defer the discussion of earnings, pin--
money, postnuptial settlements, and gifts from husband to wife
until later chapters of this treatise are reached, when the equi-
table doctrine will be considered in the same connection.^ A
title to separate statutory property cannot be vested in the wife
on her husband's credit, where the statute only recognizes her
right to acquire from third persons, any more than it could by,
his money.* And such is the temptation to making colorable;
transfers to one's wife in fraud of creditors, that in controversiea
over title, where the legislation discourages acquisitions from
the husband, the wife, as against the husband and his creditors-
and representatives, has been held quite strictly to her proofs
of acquisition from a person other than her husband,^ unless, at
all events, there are writings which run so as suitably to give
her the legal title instead.*^ Where a liusband's creditors have,
such prior notice that they are not prejudiced, a wife's claim of
ownership stands on a stronger footing ; " for it is the hona ficU
third persons who are led to trust the husband who are chiefly
protected.
Where a husband purchases land or personalty with his own
money, and conveys or transfers it to his wife, through a trustees
^ A conveyance of lands in Ala- ' See cs. 12, 14. A wife may noW
bama to a married woman, " to have acquire her husband's note from a
and to hold to the sole and proper use, third person and enforce it. 14 R. I. 1.
benefit, and behoof of iier, her heirs * Hopkins v. Carey, 28 Miss. 54;
and assigns forever," vests in iier, un- Worth v. York, 13 Ired. 206. -
der the laws of that State, a statutory ^ See Reeves v. Webster, 71 111. 307^
separate estate. Lippincott y. Mitchell, Jolmson y. Johnson, 72 111. 489; Gor-
94 U. S. Supr. 767. And see Swain v. man v. Wood, 68 Ga. 524.
Duane, 48 Cal. 358 ; Evans v. Nealis, " Lyon v. Green Bay R., 42 Wis.
69 Ind. 148. 548.
2 See Towle r. Towle, 114 Mass. ^ See Jones v. Brandt, 59 Iowa,
167 ; Jenkins i-. Flinn, 37 Ind. 349. 332.
183
§ 118 THE DOMESTIC RELATIONS. [PART II.
or otherwise, the question becomes ordinarily one of postnuptial
settlement or gift, with equitable rules such as we shall consider
hereafter ; though sometimes the married women's act is broad
enough in scope to confer the right of separate property acqui-
sition, as such, from a husband, as well as from third persons.
If, on either theory, the title vests in the wife, as of her separate
right, the proceeds thereof, or the specific re-investment, is the
wife's also. Where the husband appropriates such proceeds or
takes other property in his own name, equity and modern stat-
utes between them may preserve the wife's rights ; she may, in
the usual manner, follow her title into the new property, or else
regard her trustee as remiss in duty and indebted to her.
Again, the wife is permitted to bestow her statutory separate
property upon her husband, or waive her statutory rights to a
considerable extent. Thus, it is held that money used by the
husband with the wife's knowledge and consent, in payment of
ordinary household expenses, and without any agreement for
repayment to her on his part, cannot be recovered from his
estate afterwards.^ And further than this, where she long per-
mits him to invest her surplus rents and income for other than
her sole benefit and with no apparent intention of charging him,
she cannot follow such rents or income into the investment
afterwards.^ The husband may reduce to possession his wife's
outstanding personals in action ; but out of regard to her statu-
tory rights, the doctrine now becomes of somewhat novel appli-
cation, and evidence of the wife's consent is properly required
in many States before the husband's act of appropriation shall
be considered complete. For while she may bestow her goods
and chattels upon him, under suitable circumstances, he can no
longer go to work, as he could at the common law, and make
his title complete without reference to her wishes.^ Nor has
the debtor or custodian of the incorporeal property, or the
executor or administrator who settles the estate in which the
married woman may have a legacy or distributive share accru-
1 Cartwright I'. Cartwright, 53 Iowa, Green, 512; King v. Gottsehalk, 21
67. Iowa, 512 ; Haswell v. Hill, 47 N. H.
2 Bristor v. Bristor, 101 Ind. 47. 407 ; 41 Oliio St. 298 ; Archer v. Guill,
8 Vreeland v. Vreeland, 1 C. E. 67 Ga 195.
184
CHAP. IX.] wife's separate PROPEPvTY. § 119
ing to her, the right to recognize the husband as entitled to her
exchisiou, or to pay over to him on his sole and unauthorized
receipt.^
§ 119. Husband's Control ; Mixing Wife's Property or Keeping
it Distinct. — The greatest source of perplexity, in truth, in these
married women's acts, arises out of the effort at elimination of
the husband's control in the wife's statutory property ; for here
the safeguards usual in equitable trusts are wanting. Nor are
States agreed in the course to pursue, since the policy in one is
to emancipate the wife from property restraints, while another
grudges the change as tending to strip the husband of his mat-
rimonial rights. A married woman, in order to preserve her
separate property, should keep it distinct from that of her hus-
band ; and especially does the rule hold true in States where
presumptions are against her exclusive right. Thus it is held
that if a married woman willingly allows what she might have
retained as her separate property to be so mixed into a common
mass with that of the husband as to be undistinguishable, or
acquiesces in leaving it so, it must, as to her husband's creditors,
be treated as relinquished to him.^ So, too, land or other prop-
erty bought by the husband with his wife's money, but in his
own name, and without any agreement that the purchase shall
be to her separate use, or the title taken in her name, will not,
as a rule, as presumptions have ruled hitherto, be treated as her
separate property.^ If certain property be purchased in part
from her own funds, and in part from her husband's, whatever
the form of the investment, her title extends only to the amount
of her investment.*
1 Aliter, if the husband's receipt was ^ Kidwell v. Kirkpatrick, 70 Mo.
authorized by the wife. Hobensack v. 214.
Hallman, 17 Penn. St. 154. Some of ^ Hopkins v. Carey, 23 Miss. 54;
tlie local statutes are held not to re- Worth v. York, 13 Ired. 206; Haines
strain the husband from collecting and v. Haines, 54 III. 74 ; Hardin v. Darwin,
reducing to possession his wife's c/io.ses 66 Ala. 65. Under Maine statutes, prop-
in action. Clark v. Bank of Missouri, erty conveyed to a married woman, but
47 Mo. 17. wholly or partly paid for by her hus-
2 Glover v. Alcott, 11 Mich. 470; band, may be reached b^- tiie husband's
Gross V. Reddy, 45 Penn. St. 406; creditors to the extent of his interest.
Kelly V. Drew, 12 Allen, 107 ; Cham- Call r. Perkins, 65 Me. 439. And see
bers V. Richardson, 57 Ala. 85; Humes Bowen v. McKean, 82 Mo. 594.
i;. Scruggs, 94 U. S Supr. 22.
185 ^
§ 120 THE DOMESTIC RELATIONS. [PAKT II.
On the other hand, where the husband has kept his wife's
funds distinct from his, though changing investments from
time to time, and preserved the ear-marks, so to speak, her
right to claim the property from his estate, upon surviving him,
has been and is likely to be strongly asserted.^
So discordant is our married women's legislation, however,
that in New York, where presumptions lean strongly to the
wife's side, it is held that if household furniture belonging to a
wife, and acquired from her father, is, with her consent, taken
to the common dwelling, mingled with the husband's furniture,
and used therewith for the common household purposes, it does
not thereby become her husband's property, but the title re-
mains in her.^ This doctrine, however, is applied as between
the wife or her assignee, and the husband himself;*^ and as to
hona fide third parties for value without notice, the assertion of
a wife's title as against those who have given credit to a hus-
band in possession requires the nicest discrimination on the
part of the court. Property bought by a husband with money
belonging to his wife will in general be presumed to be his own
until the contrary is shown ;* and even property bought by the
husband with money from the wife, which is placed in his
hands for such investment in his name and for his benefit, is
liable to seizure for his debts, notwithstanding she borrowed the
money.^ A wife may have an equitable right to pursue her
funds invested by her husband, while, until this right is as-
serted, the husband retains a legal title of which a hona fide
transferee for value may perhaps avail himself by way of a
countervailing equity.^
§ 120. Husband as Wife's Trustee in this Connection. — The
1 Fowler v. TJire, ?,\ Ind. ."58; Rich- joins. 13 R. I. 25. Furniture used in
ardson v. Merrill, 32 Vt. 27 ; McCowan furnishing a liotel for business is not
r. Donaldson, 128 Mass. 16f); Schouler, to be readily considered the separate
IIus. & Wife, §219, and numerous cases propertj' of the wife, as against a hus-
cited. band's creditors. 18 Fla. 707. See 65
2 Fitch V. Rathbun. 61 N. Y. 579. Iowa, 178.
8 lb. Under a Rhode Island stat- * Moye v. Waters, 51 Ga. 13. But
ute, " household furniture " of tiie wife, see next c. as to his agency,
such as a sewing-machine or piano, ^ Nelson v. Smith, 04 111. 394.
cannot be transferred b}' the liusband ^ See Holly v. Flournoy, 54 Ala.
except by a writing in which the wife 99.
186
CHAP. IX.] wife's separate PROPEPwTY. § 120 a
husband, while the marriage relation lasts, may hence become
bound as trustee of his wife's statutory separate estate, real or
personal, not only by express appointment, but through impli-
cation, as under the equity rule.^ In certain States, such as
Connecticut and Alabama, the husband is specially designated
by statute as his wife's trustee,^ — a peculiarity of legislation
which is attended with peculiar consequences as to the legal
title of such property. And since the opportunities afforded
him for mixing up her property with his are very great, in the
present raw age of our married women's legislation, we often
find her, upon surviving him, a general creditor against his
estate, or the claimant of a trust fund which cannot easily be
identified.-'^ Unlike the wife's separate estate in equity, the
separate property of a married woman under American statutes
seems sometimes to retain its qualities after her death, so that
her administrator often claims it against her surviving hus-
band.* It would appear that in general the agency of the
husband in selling, exchanging, or managing his wife's separate
statutory property may be previously conferred or ratified
afterwards by the wife.^
§ 120 a. Presumptions as to Separate Property under these
Acts. — We must here bear in mind that the married women's
acts have reference, not to the wife's property in the mass, but
to property suitably acquired by her in certain instances by
way of exception to the old rule of coverture. Broad, there-
fore, as they may often appear, these statutes are considerably
restrained by judicial construction and the application of pre-
1 Walter v. Walter, 48 Mo. 140 ; his right with regard to it. Williams
Hall V. Creswell, 46 Ala. 460 ; Wood v. v. King, 43 Conn. 569.
Wood, 83 N. Y. 575; Fatten i\ Patten, The husband may sue, "as trustee
.75 111. 446; Hammons v. Renfrew, of " his wife, to recover rents, income,
84 Mo. 332; Camp v. Smith, 98 Ind. and profits of his wife's statutory sep-
409. arate estate. Bentley v. Simmons, 51
2 Sherwood i'. Sherwood, 32 Conn. Ala. 165.
1 ; Marsh v. Marsh, 43 Ala. 677 ; 73 3 Martin v. Curd, 1 Bush, 327 ;
Ala. 580. The personal property of a Hause v. Gilger, 52 Penn. St. 412 ;
married woman, which is by the stat- Fowler v. Rice, 31 Ind. 258.
ute vested in the husband as her trus- * Leland v. Wiiitaker, 23 Mich.
tee, is not in legal strictness her sole 324.
and separate estate, unless the husband ^ Lichtenberger v. Graham, 50 Ind.
transfers it to the wife, or relinquishes 288. See next c.
187
§ 120 a THE DOMESTIC RELATIONS. [PART II.
sumptions. In Massachusetts, Maine, California, Wisconsin,
Illinois, and other States, the presumption is still, or was lately,
in absence of suitable words or circumstances manifesting an
intent on the part of those interested to claim the benefits of
the statute, that a married woman's property belongs to her
husband as at the common law ; so that his possession of the
property, undisputed and unexplained, or even a visible pos-
session thereof in connection with his wife, would give him
the marital dominion.^ In Pennsylvania the courts were at
first disposed to rule otherwise, but they, too, presently settled
upon the same presumption. ^ On the other hand, the New
York courts approve the new system to its widest extent, thus
far ; and it would appear that married women in that State are
well-nigh emancipated altogether from marital restraints, so
far as concerns their property, M'hile the husband's own rights
therein are exceedingly precarious.^ And our constant diffi-
culty in asserting a principle is that changes in all married
women's acts tend in the direction of making her more and
more independent in her property relations.
To ascertain as a fact whether the ownership be in wife or hus-
band, evidence of how the matter was understood and treated
between the spouses may be quite essential ; * for a sort of joint
possession on their part is often the practical situation of the
case.^ And thus does one State regard the wife's right to her
1 Eldridge v. Preble, 34 Me. 148; baugli, 13 Penn. St. 480. And see
Smith V. Henry, 35 Miss. 369 ; Alver- Curry v. Bott, 53 Penn. St. 400. Un-
son V. Jones, 10 Cal. 9 ; Farrell r. Pat- der tlie law of Tennessee, direct gifts to
terson, 43 111. 52 ; Reeves v. Webster, tlie wife enure to the husband, unless
71 111. .307; Stanton v. Kirscli, 6 Wis. the separate-estate intention is clearly
338; Smith v. Hewett, 13 Iowa, 04. expressed. Ewing v. Helm, 2 Tenn.
Contra, Johnson v. Runyan, 21 Ind. 115 ; Ch. 368.
Stewart v. Ball, 33 Mo. 154. While a ** Peters v. Fowler, 41 Barb. 407 ;
husband and wife both live on her land Knapp v. Smith, 27 N. Y. 277. See
held as general estate, the possession also 42 Ark. 62; 80 Mo. 626.
of the products is presumptively his. * Hill v. Chambers, 30 Mich. 422.
Moreland v. Myall, 14 Bush, 474. But In this State the obvious inclination is
cf. Hill V. Chambers, 30 Mich. 422. to determine, not by presumptions or
- Cf. Camber r. Gamber, 18 Penn. inferences, but upon the facts. lb.
St. 363 ; Winter v. Walter, 37 Penn. ^ Gamber v. Gamber, 18 Penn. St.
St. 157; Bear's Administrator )'. Bear, 363. And see Keimey r. Good, 21 Penn.
33 Penn. St. 525 ; Gault v. Saffin, 44 St. 349. As the rule is usually ex-
Peim. St. 307 ; with Goodvear »;. Rum- pounded, presumptions bear heavily
188
CHAP. IX.] wipe's separate PROPERTY.
§122
own acquisitions as the rule, and another as the exception. In
New York, since the passage of the married women's acts,
there is no presumption that the husband is in occupation of
his wife's lands ; and where ejectment is brought to recover
possession of such lands, whether she was occupying them at
the commencement of the action, or had given to her husband
the possession, is to be determined as a question of fact.^
§ 121. Schedule or Inventory of Wife's Property. — The re-
quirement in a few States is that the wife's separate property
shall be scheduled or inventoried in order to receive legal pro-
tection for her separate benefit.^ If some schedule or registry
system were practicable to make the wife's property distin-
guishable by third parties from her husband's, it would relieve
the situation from much fraud and uncertainty.
§ 122. statutory and Equitable Separate Property. • — In New
York and Mississippi it is held that the married women's act
does not oust the original jurisdiction of courts of equity in
cases affecting the separate estates of married women.^ It is
against tlie wife in contests of title, but
more especially wliere tlie rights of a
husband's creditors are affected by the
decision. "Between strangers," it is
observed in a Pennsylvania case, " open,
visible, notorious, and exclusive posses-
sion is tlie test of title in all cases
where the riglits of creditors are in-
volved. Rut this is not possible with
reference to the personal goods of a
married woman. She cannot have or
use her property exclusively, unless
she lives apart from her husband. It
was not tiie intention of the legislature
to compel a separation in order to save
the wife's rights ; but if the rule of
exclusive possession were adopted, the
statute would be inoperative as long
as tliey live together. But this shows
liow necessary it is to demand the
clearest proof of the wife's original
riglit." Gamber v. Gamber, supra. The
principle that possession of personal
property is prima facie proof of owner-
ship applies to a wife's separate prop-
erty, whether the possession be in her,
in her husband as trustee, or in both
jointly, in recognition of her right. 72
Ala. 400.
1 Martin v. Rector, 101 N. Y. 77.
Cf. § 89.
- Price V. Sanchez, 8 Fla. 136
Humphries v. Harrison, 30 Ark. 79
Selover v. Commercial Co., 7 Cal. 2G6
Le Gierse v. Moore, 59 Tex. 470
Scliouler, Hus. & Wife, § 222. This
registry law, after having called for
considerable construction in the courts,
appears to have finally been repealed
in Iowa. Schmidt v. Holtz, 44 Iowa, 448.
And elsewhere schedules are treated as
not indispensable. 42 Ark. 02.
3 Mitchell V. Otey, 23 Miss. 230;
Colvin V. Currier, 22 Barb. 371 (Strong,
J., dissenting.) See the recent ease of
Wood V. Wood, 83 N. Y. 575, where
Folger, C. J., observes that the married
women's acts, by their own operation,
changed the wife's capacity to hold a
separate estate as a matter of equity
into a legal estate. So, too, in a Mich-
igan case, it is observed that, as re-
gards the wife's individual property,
the married women's legislation has
189
§ 123 THE DOMESTIC RELATIONS. [PART 11.
ruled in Alabama that with the husband's consent a wife's sep-
arate statutory estate may be converted into a separate equita-
ble estate, just as any other of the husband's marital rights
might be waived ; ^ and that a conveyance to the wife without
clear intent to exclude the husband's rights gives her a statutory
estate. 2
§ 123. American Equity Doctrine ; Trustee for Separate Prop-
erty. — Doubtless the married women's acts have given a fresh
impulse to the equitable protection of married women's prop-
erty, which, as we have stated, had been quite sparingly exercised
in the United States prior to the first legislative enactments on
this subject. Where the separate use has been recognized and
enforced at all, the strict American rule was always borrowed
from that of England. And the latest cases show an increas-
ing liberality to the wife in our courts of equity. Thus it has
been frequently said that the wife's separate estate requires no
trustee to sustain it.^ For when no other trustee is interposed,
the courts of chancery are prepared to treat the husband as
such by virtue of his possession and control of the fund.* And
one may, by his acts, make himself a trustee snb modo to sup-
port the wife's separate use." Even a purchaser, still more a
done little more than to give legal all of the law's suspicion of his dealing
riglits and remedies to the wife, where with the trust property, for the coni-
before, by settlement or contract, she niunity of interests and sympatiiies of
might have established corresponding husband and wife forbid this." Lowrie,
equitable rights and remedies. Snyder C J., in Walker v. Reamy, 36 Peun.
V. People, 26 Mich. 106. And see Claw- St. 410, 414.
son ;•. Clawson,25 Ind. 220. That this ^ Turner v. Kelly, 70 Ala. 85; and
legislation, properly so called, does not sec 66 Ala. 151.
profess to operate upon the family re- ^ 77 Ala. 412.
lation, or take from the husband his ^ McKcnnan v. Phillips, 6 Whart.
marital rights, except as pertaining to 571 ; Tliompson v. McKusick,3 Humph,
property, is frequently insisted upon. 631; Fellows v. Tann, 9 Ala. 999;
Snyder "y. People, 26 Mich. 105. Trenton Banking Co. v. Woodruff, 1
" The estate thus assured to the Green Ch. 117.
wife," as a Pennsylvania case well ob- ■* Boykin *;. Ciples, 2 Hill Ch. 200;
serves, " is only analogous to the equi- Hamilton v. Bishop, 8 Yerg. S3 ; Wal-
table separate estate, and is seriously lingsford v. Allen, 10 Pet. 583 ; Por-
modified by the fact that she has no ter v. Bank of Rutland, 19 Vt. 410;
trustee separate from her husband ; and Schouler, IIus. & Wife, § 224, and cases
that lie, therefore, as the legal guar- cited ; Pepper v. Lee, 53 Ala. 33 ;
dian of her rights, necessarily becomes Richardson v. Stodder, 100 Mass. 528.
in a large sense her trustee, but without ^ Sledge v. Clopton, 6 Ala. 689.
190
CHAP. IX.] wife's separate PROPERTY.
§124
volunteer, taking possession of the trust property, with a notice
of the trust, will be made a trustee in chancery.^
§ 124. Equity Doctrine; How Separate Use Created. — So,'
too, an intention clearly manifested to create a separate estate
has always been deemed necessary in our courts, in order to
exclude the husband's marital rights. The mere intervention
of a trustee is insufficient.^ The language employed, if lan-
guage be necessarily relied on, must be suitable.^ And pro-
1 Jackson r. McAliley, Speers Eq.
303 ; Fry r. Fry, 7 Paige Cli. 461.
2 Hunt r. Booth, 1 Freem. Ch. 21-5;
Evans v. Knorr, 4 Rawle, 66 : Taj'lor
V. Stone, 13 S. & M. 653; Schouler,
Hus. & Wife, § 225.
** Thus, in North Carolina, the
words, " for her use," liave been held
sufficient to exclude tlie husband's do-
minion. Steel V. Steel, 1 Ired. Eq. 452.
So, too, tlie words, " for the entire use,
benefit, profit, and advantage." Hcatli-
man v. Hall, 3 Ired. Eq. 414. But in
Soutli Carolina, tiie words, for " the
use of his wife," are held insuflJcient.
Tennant v. Stoney, 1 Rich. Eq. 222;
M'Donald v. Crockett, 2 McC. Vh. 130.
In Kentucky, the words, " for her own
proper use and benefit," are held suffi-
cient. Griffith V. Griffith, 5 B. Monr.
113. Such, too, seems to have been
the rule in Alabama. Warren r. Hal-
sey, 1 S. & M. Ch. 647. The words
" to the use and benefit " are held
sufficient in Tennessee. Hamilton r.
Bisliop, 8 Yerg. 33. So in Alabama,
words importing enjoyment " without
let, hindrance, or molestation what-
ever" Newman v. James, 12 Ala. 29.
And where one clause of a will applies
the words, " in trust for the separate
use," to certain property, and another
applies to certain property the words
" in trust " only, the separate use may
by construction embrace the whole.
Davis V. Cain, 1 Ired. Eq 304. The
word ■' e.xclusively " in the wife's favor
is held to exclude the husband, fiould
V. Hill, 18 All. 84. So, too, " to be hers
and hers only." Ellis r. Woods, 9 Rich.
Eq. 19; Ozley v. Ikelheimer, 26 Ala. 332.
No specific words are needful if the
intention clearly appears. 81 Ky. 129,
308. In a conveyance to a married
woman a separate equitable estate may
be created by words used only in the
hdheiulniH clause. Turner v. Kelly, 70
Ala. 85. Cf. 39 Ark. 434.
Trust, to pay income to a wife "for
and during the joint lives of her and
her husbanil, taking her receipt there-
for," is held to give her a sole and sep-
arate estate in tiie income. Charles r.
Coker, 2 S. C. n. s. 122. Trust to
"exclusive use, benefit, and behoof " is
held sufficient to create a separate use.
Williams r-. Avery, 38 Ala. 115. So,
too, "for her own use and benefit, in-
dependent of any other person." Wil-
liams V. Maull, 20 Ala. 721 ; Ashcraft
V. Little, 4 Ired. Eq. 236. So, too, "ab-
solutely," in a suitable connection.
Brown r. Johnson, 17 Ala. 232; Short
i: Battle, 52 Ala. 456. So, too, " to' be
for her own and herfamily's use during
her natural life." Heck v. Clippenger,
5 I'enn. St. 385; Hamilton ?•. Bishop,
8 Yerg. 33. Or, " for the use and bene-
fit of the wife and her heirs." Goody.
Harris, 2 Ired. Eq. 6;',0. But cf. Vail
V. Vail, 49 Conn. 52. Or, " not to be
sold, bartered, or traded by the hus-
band." Woodrum v. Kirkpatrick, 2
Swan, 218; Clarke v. Windham, 12
Ala. 798.
On the other hand, there is authority
against permitting such expressions as
these to create the separate use : " For
the use and benefit of." Clevestine's
Appeal, 15 Penn. St. 499; Fears i'.
Brooks, 12 Ga. 198 ; Tennant r Stoney,
1 Rich. Eq. 222; Prout v. Roby, 15
191
§124
THE DOMESTIC RELATIONS.
[part II.
visions for the sole and separate use, support, and maintenance
of a wife and children are frequently sustained, though the
trust does not vest their respective interests consecutively.^
As in J^ngland, our courts permit an estate to be so settled on
an unmarried female as to exclude the marital rights of any
future husband.^
On the whole, it is apparent that there is much contrariety
in the decisions, so far as relates to technical expression.
Courts of equity, as such, will not deprive the husband of his
legal rights upon any doubtful construction of language.^ But
the question relates rather to intention, to substance, and not
literal expression ; and any language is now deemed usually
sufficient, whatever the technical words, which clearly ex-
presses the intent to create a separate estate for the wife,
independently of her husband's control.^
In the courts of this country, moreover, the statute policy is
found to supplement equity. As a general rule an equitable
trust by instrument requires the construction of that instrument
Wall. 471 ; Merrill v. Bullock, 105
Mass. 486; Guisliaber v. Hairman, 2
Bush, 320. Or, to the wife "in her
own rijiht," as in the English cases.
Ih. snprn, § 105. Or, " for tiie joint
use of hushand and wife." Gej'er v.
Branch Bank. 21 Ala. 414. Cf. Charles
V. "Coker, 2 S. C. n. s. 122. See post,
ch. 14, as to conveyances to husband
and wife. Or, " to her and the heirs of
her body and to tliem alone," and sim-
ilar expressions. Clevestine's Appeal,
15 Penn. St. 499 ; Bryan v. Duncan, 11
Ga. 67 ; Foster v. Kerr, 4 Rich. Eq.
390. Or where, instead of restraint of
husband's right of disposition, is stated
a mere exemption from liability for his
debts. Harris v. Harbeson, 9 Bush,
397; Gillespie v. Burlin.son, 28 Ala.
551. But see Young r. Young, 3 Jones
Eq. 266. Or, to some one's wife, without
further exclusive description. Moore
V. Jones, 13 Ala. 296 ; Fitch v. Ayer, 2
Conn. 143 ; Shirley r. Shirley, 9 Paige,
364. A gift by will of a farm and the
personal property on it which is not
192
limited by words excluding the hus-
band's marital rights, is not the wife's
separate estate. Hubbard v. Bugbee,
58 Vt. 172. Nor does a deed in ordi-
nary form confer a separate estate in
equity. 20 Fia. 940. Nor does the
mere intervention of a trustee. 66 Ala.
476, 547. And see 42 Ark. 503 ; 81 Ky.
308 ; 104 Penn. St. 567.
But the words, to the wife's " sole
and separate use," are most commonly
applied. Or, "solely for her own use."
See last c, § 105. Or, "for the sole
use and benefit of." Schouler, Hus. &
Wife, §§ 226, 227, and cases cited ; 82
Ky. 129.
1 Good V. Harris, 2 Ired. Eq. 6-30;
Hamilton )-. Bishop, 8 Yerg. 33; An-
derson V. Brooks, 11 Ala. 953.
2 Beaufort v. Collier, 6 Humph. 487 ;
O'Kill V. Campbell. 3 Green Ch. 13;
Ordway v. Bright, 7 Heisk. 681.
8 Buck V. Wroten, 24 Gratt. 250;
Bowen v. Sebree, 2 Bush, 112.
* See Prout v. Roby, 15 Wall. 471 ;
Gaines v. Poor, 3 Met. (Ky.) 503.
CHAP. IX.] wife's separate PROPERTY. § 126
to operate. But this does not necessarily conclude the wife. For
while an equitable separate estate is created, where the intent
to exclude the marital rights of the husband clearly and un-
equivocally appears from the force and certainty of the terms
employed, the local statute may intervene where the intent is
doubtful, equivocal, or open to speculation, and fix the char-
acter of the estate as the wife's separate statutory and legal
estate.^ On the other hand, a conveyance or trust duly created
for a married woman's separate benefit and duly expressed, is
to be regarded as her equitable rather than her statutory
estate.^
§ 125. Equity Doctrine; Acquisition by Contract; Produce^
and Income. — A married woman cannot by contract acquire
any property to her separate use ; but the benefit of her con-
tract, if any, enures to her husband.^
The savings of the interest arising from the separate estate of
a married woman are as much separate property as the princi-
pal, unless she has suffered them to pass under her husband's
marital control. And property purchased with such savings
belongs to her and continues subject to the same rules.* But
furniture purchased by the wife with the income of her sep-
arate estate, and mixed with the furniture of the husband,
becomes presumably the property of the husband, unless it was
understood between them, at the time of the purchase, that the
property should be kept by him as her trustee merely ; ^ for it
is both natural and proper that the wife should bestow her
income so as to follow the common-law rule, thus helping
to defray the family expenses and maintain the household
establishment.
§ 126. Equity Doctrine; Preserving Identity of Fund. — In-
deed, as to mingled funds generally, the rule applies that equity
1 Short V. Battle, 52 Ala. 456. 3 Lansier v. Ross, 1 Dev. & Bat. Eq.
2 Pepper v. Lee, 53 Ala. 33 ; Musson 39. But see Pinney v. Fellows, 15 Vt.
V. Trigg, 51 Miss. 172. As to the ere- 625 ; Schouler, Hus. & Wife, § 250 ;
ation of parol trusts for separate use, supra, § 116 (statute).
see Schouler, Hus. & Wife, § 228 ; Por. * Merritt v. Lyon, 3 Barb. 110 ; Hort
ter V. Bank of Rutland, 19 Vt. 410; v. Sorrell, 11 Ala. 386. See Kee v.
Spaulding v. Day, 10 Allen, 96; Wat- Yasser, 2 Ired. Eq. 553; supra, § 106.
son V. Broaddus, 6 Bush, 328. ^ Shirley v. Shirley, 9 Paige, 863.
13 193
§ 127 THE DOMESTIC RELATIONS. [PAET II.
will not interfere where a fund set apart for the wife's sole ben-
efit has become mixed with other funds beyond the possibility
of identification.^ But, on the other hand, the proceeds of a
transfer of the wife's separate property, which it is understood
shall be the wife's, may be followed by her in equity, provided
she can trace the identity, and has acted consistently with her
claim of title, even though the husband takes the title in him-
self.^ Thus, if land is bought with the wife's money the land
in equity is hers as to the husband and his general creditors ;
and if land is bought partly with his money and partly with
hers, her just share on a partition will be protected.^ A dis-
tinction may sometimes be requisite between the case where a
wife asserts her equitable title against her husband, and that
where her title is claimed against ho7ia fide purchasers from the
husband, having neither actual nor constructive notice of her
title.*
§ 127. Equity Doctrine; Separate Use only in Married State;
How Ambulatory. — In the United States, as in England, the
separate estate in equity continues only during the marriage
state, with probably similar qualifications.^ The husband sur-
viving his wife has the same rights in her separate estate as in
her other property, even though another be appointed adminis-
trator.*' The estate of the trustee, as such, terminates on the
wife's death.'^ And yet if the husband, on survivorship, is enti-
tled to his wife's separate personal estate by virtue of his mari-
tal rights, he must, in order to obtain it from others, and have
a firm title against creditors, take out letters of administration,
as American cases hold, — at least where antenuptial debts of
the wife have not been recovered during marriage.^
Consistently with its intent, the separate use may have an
ambulatory operation, as under the English rule, ceasing when
1 Buck V. Ashbrook, 59 Mo. 200. 6 Spann v. Jennings, 1 Hill Ch. 325 ;
2 Dula V. Young, 70 N. C. 450; Good v. Harris, 2 Ired. Eq. 630; Mc-
Haden v. Ivey, 51 Ala. 381 ; Martin v. Kay v. Allen, 6 Yerg. 44. And see
Colburn, 88 Mo. 229 ; 63 Iowa, 620. Cooney v. Woodburn, 33 Md.320, where
^ Sawyers v. Baker, 77 Ala. 461 ; 76. wife left no issue surviving.
472 ; Mitchell v. Colglazier, 106 Ind. ^ Bercy v. Lavretta, 63 Ala. 374.
464. And see § 194. 8 McKay v. Allen, 6 Yorg. 44 ;
* See supra, § 108. Schouler, Hus. & Wife, § 233.
5 Supra, § 107.
194
CHAP. IX.] wife's separate PROPERTY. § 129
the wife becomes a widow, and, if left undisposed of, reviving,
supposing she marries again. ^ Where the trust for a wife's sole
benefit is expressed to be free from the control of " any present
or future husband," equity will not set the trust aside on the
death of a husband.^ But it is held in this country that if a
married woman having a separate estate survives her husband,
the restraints upon the disposal of the estate, inconsistent with
its general character, cease with the coverture.^
§ 128. Equity Doctrine ; Whether Marital Obligations Affecte A,
— The English doctrine that the wife's separate estate is notj
necessarily liable for her own general or antenuptial debts is;
also admitted here.* Nor, in the absence of an intention on
the wife's part to make such estate liable, can it be subjected to
her general debts contracted during coverture.^ And in gen-
eral the husband's obligation to maintain his wife and family
remains unaffected by the fact that the wife holds separate!
property.^
§ 129. Equity Doctrine ; Restraint upon Anticipation. — Amer-i
ican courts have seldom to consider clauses of restraint against |
anticipation or alienation,' a subject to which English chancery
courts have devoted so much attention. Eestraining a wife's
power to deal with her separate property seems, in American
policy, too much like denying her a separate property. Yet
there are good grounds for such constraint ; and in various in-
stances our" State courts find occasion to recognize such clauses.^
The restraint is held, as in England, to apply equally to real or
personal property, and to estates in fee or for life. It will come
1 Supra, § 107. 5 Knox v. Picket, 4 Desaus. 92 ; Gee
2 O'Kill V. Campbell, 3 Green Ch. r. Gee, 2 Dev. & Bat. 103 ; Haygood v.
13. Harris, 10 Ala. 291 ; Curtis v. Engel, 2
3 Smith V. Starr, 3 Whart. 62 ; SanJf. Ch. 287. But a disposition to
Pooley V. Webb, 3 Cold. 599 ; Tliomas overthrow this liarsh rule appears in
V. Harkiiess, 13 Bush, 23. See Perry, some States. Sehouler, Hus. & Wife,
Trusts, §652; Sehouler, Hus. & Wife, §235; Dickson v. Miller, 11 S. & M.
§ 234. Por a peculiarity in tiie Penn- 594. See § 134 et sf/j.
sylvania rule as to contemplation of ^ Meth. Ep. Church i\ Jaques, 1
future marriage, in such trusts, see Johns. Ch. 450; Dodge r. Knowles, 114
Sehouler, Hus.^& Wife, §234 ; Snyder's U. S. 430.
Appeal, 92 Penn. St. 504; Bercy v. ^ Supra, §110.
Lavretta, 63 Ala. 374. 8 Precman v. Flood, 16 Ga. 528 ;
* Vanderheydeny. Mallory, IComst. dicta in Wilburn v. McCalley, 63 Ala.
452. 436; Burnett v. Hawpe, 25 Gratt. 481.
195
§ 131 THE DOMESTIC RELATIONS. [PART II.
into operation, like the separate use to which it is attached,
"where a woman marries ; but it exists only in the marriage
state, since one sui furls is unrestrainable by any such means
from exercising the ordinary rights of ownership, whether
widow or maiden.^
CHAPTEE X.
THE wife's DOMINION OVER HER EQUITABLE SEPARATE PROPERTY.
§ 130. General Principle of Wife'^ Dominion. — The right to
enjoy property carries with it, universally, as a necessary inci-
dent, the right of its free disposal. All other things, then,
being equal, we shall expect to find that married women, when
allowed to hold estate to their separate use, are permitted to
sell, convey, give, grant, bargain, or otherwise dispose of it ;
and further, to encumber it with their debts as they please.
Public policy may, however, restrain their dominion. Our
present discussion relates to the wife's dominion over her
equitable separate property. The wife's dominion over statu-
tory separate property, or that held under our married women's
acts, will be reserved for the chapter succeeding.
§ 131. Wife, unless restrained, has Full Power to Dispose. —
The clause of restraint upon anticipation or alienation, and its
important effect upon the wife's power of disposal, we have
already dwelt upon. Apart from this, in England, it is the
general rule, so far at least as concerns personal property, that
from the moment the wife takes the property to her sole and
separate use, from the same moment she has the sole and sepa-
rate right to dispose of it ; for, upon being once permitted to
1 Wells ?'. McCall, 64 Penn. St. 207 ; the property shall not be liable for her
Parker v. Converse, 5 Gray, o3tJ. debts, &c., is insufficient. Witsell v.
There must be a clear and unequiv- Charleston, 7 S. C. 88; Radford v,
ocal expression of intent to restrain Carwile, 13 W. Va. 572.
the jus disponendi. A declaration that
196
CHAP. X.] DOMINION : WIFE'S EQUITABLE PROPERTY. § 133
take personal property to her separate use as a feme sole, she
takes it with all its privileges and incidents, including the jus
disponendi.^ And while she may be restrained by language of
the instrument under which her title is acquired, amounting to
a clause restraming anticipation, for instance, yet the intention] I
to restrain her must be clearly expressed ; or else she may deal
with the property as she pleases, either by acts inter vivos, or
by testamentary disposition.^ Her power of disposition is not
confined to interests vested in possession, but extends to rever-
sionary interests settled to her separate use.^
§ 132. Same Principle applies to Income. — The same prin-
ciple applies to the income and profits and rents of the wife's
separate property. The wife has the same control over her
savings out of her separate estate as over the separate estate
itself ; " for," to use the somewhat involved metaphor of Lord
Keeper Cowper, so often quoted, " the sprout is to savor of the
root, and to go the same way."^ Following this general doc-
trine, the wife, if unrestricted by the terms of the trust, may
anticipate and encumber rents settled apart for her separate
use.^ But where the trust, by suitable expression, restrains the
wife from anticipation, permitting her only to receive the income
from her trustee from time to time as it falls due, she cannot
anticipate and encumber her income.^
§ 133. Technical Diificulties as to disposing of Real Estate. —
Where the wife's separate property consists of real estate, her
power of disposition is affected by technical difficulties as to
the method of executing conveyances.' But it has been sug-
1 Fettiplace v. Gorges, 1 Ves. Jr. 48 ; Free, in Ch. 255. See also Messenger
3 Bro. C. C. 9 ; Peaehey, Mar. Settl. v. Clarke, 5 Exch. 392 ; Pearhey, Mar.
261,262. See 20 & 21 Vict. c. 57, the Settl. 262; Newlands v. Paynter, 10
"reversionary act." Sim. 377; s. c. on appeal, 4 M. & Cr.
2 Ricliy. Cockell, 9 Ves. 369; Moore 408; Humphery v. Richards, 2 Jur.
V. Morris, 4 Drew. 38; Darkin v. Dar- n. s. 432.
kin, 17 Beav. 581; Caton v. Rideout, & Cheever r. Wilson, 9 Wall. 108. ,
1 Mac. & Gord. 601. ^ Chancellor Kent, in Jaques v'.
3 2 Bright, Hus. & Wife, 222 ; Macq. Methodist Episcopal Church, 8 Johns.
Hus. & Wife, 295 ; Sturgis v. Corp, 13 Ch. 77.
Ves. 192; Headen ?'. Rosher, 1 M'Cl. & '2 Roper, Hus. & Wife, 182; 1
Y. 89 ; Donne v. Hart, 2 Russ. & M. Bright, Hus. & Wife, 224. See Ex
360. parte Ann Shirley, 5 Bin.g. 226, cited
* Gore V. Knight, 2 Vern. 535; s. c. in Macq. Hus. &'wife, 296. See also
197
§ 134 THE DOMESTIC RELATIONS. [PAET II.
gested in England that, according to the principle of modern
equity cases, the heir ought to be treated as a trustee, in case
the wife had conveyed her beneficial interest by deed executed
by herself alone, and that thus her sole conveyance would be
allowed to operate.^ In most parts of the United States a mar-
ried woman can only dispose of her real estate, whether legal
or equitable, by a conveyance according to statute, which the
husband executes in token of assent ; a partial reason for this
being that the husband has his rights of curtesy even in lands
settled to his wife's separate use.^ Eents and profits of her
separate land, or an annuity charged upon land, follow the
more liberal rule of personal property held as her separate
estate,^ unless afterwards converted into land.*
§ 134. Liability of Separate Estate on "Wife's Engagements ;
English Doctrine. — As a corollary to our proposition, the wife
may enter into contract with reference to her separate property
somewhat as a feme sole. Formerly it was otherwise ; and for
a long period the English courts of equity refused to married
women having separate estate the power to contract debts.^
But the unfairness of permitting a wife to hold and enjoy her
separate property after she had incurred debts specifically upon
the faith of it soon became evident, as well as the inconvenience
she suffered in being unable to find credit where she meant to
deal fairly. So the courts felt compelled, after a while, to admit
that she might in equity charge her separate estate by a written
instrument, executed with a certain degree of formality, such as
Peachey, Mar. Settl. 267 ; Harris v. 584 ; Miller v. Albertson, 73 Ind. 343.
Mott, 14 Beav. 169. But in New York, by way of an ap-
1 Macq. Hus. & Wife, 296, 297 ; 2 pointment, a married woman may con-
Story, Eq. Juris. § 1390, and cases cited; vey such interests without the joinder
3 Sugd. V. & P. App. 62 ; Newcomen of her husband. Albany Pire Ins. Co.
V. Hassard, 4 Ir. Ch. 274 ; Burnaby v. v. Hay, 4 Comst. 9. See Armstrong
Griffin, 8 Ves. 266; Peachey, Mar. Settl. v. Ross, 5 C. E. Green, 109.
268. The statute referred to as raising * Cheever v. Wilson, 9 Wall. 108;
technical difficulties in real estate is 3 Vizoneau ?'. Pegram, 2 Leigh, 183 j
& 4 Will. IV. c. 74. Major v. Lansley, 2 R. & M. 355.
2 Shipp )■. Bowmar, 5 B. Mon. 163; * McChesney v. Brown, 25 Gratt.
Radford v. Carwiie, 13 W. Va. 572 : 2 393.
Perry, Trusts, §650; supra, §§94-97; ^ Vaughan r. Vanderstegcn. 2Drew.
McChesney v. Brown, 25 Gratt. 393; 180; Peachey, Mar. Settl. 269; New-
Koltenback v. Cracraft, 36 Ohio St. comen v. Hassard, 4 Ir. Ch. 274.
198
CHAP. X.] DOMINION : WIFE'S EQUITABLE PROPERTY. § 134
a bond under her hand and seal.^ One precedent in the right
direction leads to another, and soon less formal instruments
were brought, one after another, under this rule ; promissory
notes, bills of exchange, and lastly written instruments in gen-
eral.^ Even here the court could not safely intrench itself ; for
the inconsistency of drawing distinctions between the different
sorts of engagements of a married woman having separate estate
could be readily shown ; but it made a halt. The doctrine of
an equitable appointment was alleged to support the new dis-
tinction.^ Sound reasoning at last proved too strong an antago-
nist ; this position was abandoned ; and it became at length the
settled doctrine of the equity courts of England that the engage-
ments and contracts of a married woman, whether general or
relating specifically to her separate property, are to be regarded
as constituting debts, and that her property so held is liable to
the payment of them, whether the contract be expressed in
writing or not ; and all the more so if she lives apart from her
husband, and the debt could only be satisfied from her separate
property.* " Inasmuch as her creditors have not the means
at law of compelling payment of those debts," says Lord Cotten-
ham, " a court of equity takes upon itself to give effect to them,
nQ[t as., personal liabilities, Imi, ^y laying Ijold 9^ the separate
property ^ the oaJy i^^eans by. which they can be satisfied." ^
But while the contract for payment of money made by a
married woman having separate estate creates a debt, it is,
practically considered, only a debt siih modo, when compared
with the debt of a man or an unmarried woman. It cannot be
enforced against her at law; and Lord Cottenham's language
1 Biscoe r. Kennedy, 1 Bro. C. C. Cas. 997. Taking a lease and agree-
17 ; Hulme v. Tenant, 1 Bro. C. C. 16 ; ing to pay rent comes witliin the rule.
Norton v. Turvill, 2 P. Wnis. 144; Gaston ^^ Frankum, s'(/)ra.
TuUett V. Armstrong, 4 Beav. 323. » Field v. Sowle, 4 Russ. 112.
'^ See Murray v. Barlee, per Lord * Peachey, Mar. Settl. 271,272, and
Brougham, 3 Myl. & K. 210 ; BuUpin cases cited ; Vaughan v. Vanderstegen,
V. Clarke, 17 Ves. .365 ; Stuart v. Lord 2 Drew. 184 ; Owens v. Dickenson,
Kirkwall, 3 Madd. 387 ; Master v. Ful- Craig & Phil. 48 ; Maeq. Hus. & Wife,
ler, 1 Ves. Jr. 513; Gaston y. Frankum, 303; Picard v. Hine, L. R. 5 Ch. 274.
2 De G. & Sm. 561 ; s. c. on appeal, 16 But see Newcomen v. Hassard, 4 Ir.
Jur. 507 ; Peachey, Mar. Settl. 270, Ch. 274 ; 1 Sugd. Pow. 206, 7th ed.
and cases cited ; TuUett v. Armstrong, ^ Owens v. Dickenson, Craig & PhiL
4 Beav. 323 ; Owen v. Homan, 4 H. L. 48.
199
§ 134 THE DOMESTIC RELATIONS. [PART II.
indicates that it is enforceable in equity, not on the ground that
she incurred a personal obligation, but because there is property
upon which the obligation may be fastened. Hence it is said
that there can in no case be a decree against a married woman
in personam ; the proceedings are simply against her separate
property in rem} And though she is a necessary party to a
suit to enforce payment against her separate estate, yet, if that
estate be held in trust for her separate use, the suit must be
against the trustees in whom that property is vested ; the decree
in such case being rendered, not against her, but against the
trustees, to compel payment from her separate estate. More-
over, if the wife survive her husband, although the creditors
may still enforce their demand in equity against her separate
estate, yet her person and her general property remain as com-
pletely exempted from liability at law and in equity as in other
cases of debts contracted by her during coverture.^
Here, however, the fictions of equity create a new practical
difficulty. For if the wife be a feme sole at all, with reference
to her separate property, must she not have power to bind her-
self personally ? In Stead v. Nelson a husband and wife under-
took, for valuable consideration, by writing under their hands,
to execute a mortgage of her separate estate. The husband
died. Lord Langdale held that the surviving wife was bound
by the agreement, and ordered a specific performance.^ Cer-
tainly the ground of this decision must have been that the obli-
gation was not upon her property alone, but upon her person.
At the same time it is readily admitted that there are reasons
of policy why the wife should be exempted from personal exe-
cution durins coverture. This latter view accords with the
common-law practice in analogous cases.* Perhaps, then, the
1 Hulme V. Tenant, 1 Bro. C. C. 16 ; sideration for another promissory note,
Ashton V. Aylett, 1 Myl. & Cr. Ill; given after her husband's death, for a
Macq. Hus. & Wife, 304 ; Peachey, balance then due, though the former
Mar. Settl. 273. But see Keogh v. note be barred by the statute of limi-
Cathcart, 11 Ir. Ch. 285. tations. Latouche y. Latpuche, 8 Hurl.
2 Vaughan y. Vanderstegen,2 Drew. & Colt. 57(i.
184 ; Peachey, Mar. Settl. 273 ; Macq. ^ 2 Beav. 245 ; Macq. Hus. & Wife,
Hus. & Wife, 804. But her promissory 304.
note, given during coverture so as to * Sparkes v. Bell, 8 B. & C. 1.
bind her separate estate, is a good con-
200
CHAP. X.] DOMINION : WIFE'S EQUITABLE PROPERTY. § 135
more consistent view of the subject would be that the wife
incurs a personal obligation, morally and legally, on such con-
tracts, express or implied, as she may make during coverture;
with reference to her separate property ; but that the general!
disabilities of coverture interpose obstacles to the enforcement
of remedies by a creditor, which obstacles the courts of equity
feel bound to regard ; and hence that they confine the remedies
to her separate estate, upon the faith of which, it may reason-
ably be presumed, the creditor chose to rely. And this conclu-
sion is that preferred on the whole by the courts.^
As a general rule, in England, it became settled, therefore,! \
that wherever a married woman, having property settled to 'i
her separate use, entered into any contract by which it clearly 1|
appeared that she intended to create a debt as against herself \{
personally, it would be assumed that she intended that the i-
money should be paid out of the only property by which she
could fulfil the engagement.^
A married woman, having separate estate, without a clause
restraining her right of disposition, might charge and encumber
it in any manner she chose, either as security for her husband's
debts, her own, or those of a stranger ; provided she did not
appear to have been imposed upon in the transaction.^ A mar-
ried woman might bind the corpus of her separate property by
her compromise of a suit which she had instituted by her next
friend.^ She might also contract for the purchase of an estate,
and, even though the contract made no reference to her separate
property, it was bound by her agreement.^
§ 135. The Same Subject; Latest English Doctrine. — But in
the latest English decisions a new turn — and that towards the
better protection of wives having separate property against their
1 2Perry, Trusts, §§655-668; Lewin, The same rule applied in tlie United
Trusts, 5tli Enjr. ed. 6i2, 543. The doc- States. See posl, § 1.37 ; Short v. Battle,
trine of equitable appointment seems 52 Ala. 456 ; Armstrong ?;. Ross, 5C. E.
to be exploded. Lord Justice Turner Green, 100.
in Johnson v. Gallagher, 3 De G. F. & * Wilton v. Hill, 25 L. J. Eq. 156.
J. 494 ; supra, p. 199. *> Dowling !-. Maguire, Lloyd &
2 Earl V. Ferris, 19 Beav. 69. Goold, temp. Plunket, 1 ; Crofts v. Mid-
2 Clerk ?.'. Laurie, 2 Hurl. & Nor. dleton, 2 Kay & Johns. 194, reversed
199 ; Peachey, Mar. Settl. 292. See on appeal. And see Schouler, Hus. &
Horner v. Wheelwright, 2 Jur. n. s. 367. Wife, § 243.
201
§ 135 THE DOMESTIC RELATIONS. [PAKT II.
own imprudent disposition thereof — is indicated, which we may
attribute in some measure to the legislative changes concerning
married women's rights, agitated on both sides of the ocean, and
the influence of contemporaneous American equity decisions
evoked by the prior legislation of our respective States upon
the subject. In Johnson v. Gidlaghcr, decided in 1861 by the
English Court of Appeal in Chancery, the court checked the
loose disposition to fastening liabilities of a married woman, no
matter how im providently incurred, upon her separate estate,
on the mere faith of an implied engagement.^ It would still
appear that in England a married woman may, upon her sepa-
rate credit, not only give her banker a lien for her overdrafts,^
but employ a solicitor, or a surveyor, or a builder, or a trades-
man, or hire laborers or servants, all on the credit or for the
immediate benefit of her separate property ; ^ and that her cor-
poration shares are liable to assessment.^ Where a married
woman contracts any such debt which she can only satisfy out
of her separate estate, her separate estate will, in equity, be
made liable to the debt.^ Doubt is thrown, however, upon the
extent of the binding force of engagements not for the^wife's
benefit; and, on the whole, the test in chancery seems to be
settling, at the present day, towards regarding whether the
transaction out of which the demand arose had reference to, or
was for the benefit of, the wife's separate estate ; and, on the
whole, unsatisfactory as may be this abstruse discussion, circum-
stances are likely to determine the decision of each case, with
perhaps a growing partiality in favor of a married woman's
rights, and a growing indisposition to make her suffer.^
1 Jolinson V. Gallagher, 3 De G. F. s picard v. Hine, L. R. 5 Ch. App.
& J. 494. And see the prior English 274.
cases very fully cited in the opinion of *• Equity will enforce the wife's
Lord Justice Turner. general debts only against so much
'^ London Bank of Australia y. Lem- of the separate estate to which the
priere, L U. 4 P. C. 572, 594. wife was entitled, free from any re-
3 See Lord Justice James, in Lon- straint on anticipation, at the time
don Bank of Australia i;. Lempriere, when tlie engagements were entered
supra ; Lord Justice Turner, in John- into, and so much as remains at the
son V. Gallagher, 3 De G. F. & J. 494. time the judgment is given ; and not
* Matthewman's Case, L. R. 3 Eq. against separate estate to which she
787. became entitled after the time of such
202
CHAP. X.] DOMINION : WIFE'S EQUITABLE PROPERTY. § 136
§ 1,36. Dominion and Liability of Wife's Separate Estate ;
American Doctrine. — In this country, whenever the wife's sepa-
rate use has been admitted as a doctrine of equity, indepen-
dently of statute, her right of dominion has also been recognized.
The celebrated New York case of Jaques v. Methodist Episcopal
Church, which may justly be placed foremost among the very
few important American chancery decisions of this class, estab-
lished that a feme covert, with respect to her separate estate, and
especially her personal property, was to be regarded in equity
as a/c-me sole, so that she might dispose of it at pleasure, except
so far as expressly denied or restrained by the terms of the in-
strument which created the trust.^ Numerous American cases
also rule, conformably with English precedents, that a married
woman may, by her contracts or engagements, bind her separate
property, it being sufficient that , there was an intention to
charge her separate estate ; and further, that by contracting a
debt during coverture she furnishes a presumption of that in-
tention, since otherwise her contract must have been worthless
to her creditor.^ In general, however, it is to be observed that
the American equity doctrine of the wife's power to charge her
separate estate, independently of the married women's acts, has
fluctuated somewhat, as have likewise the English cases, and
that not only do American courts find difficulty, like those of
England, in encountering cases where the liability incurred was
disadvantageous to the wife, and at the same time not clearly
charged by her upon her separate property; but this further
source of perplexity appears moreover, namely, that local legis-
lation, in these later years, places the rights of married women
on quite a novel footing. Some States favor a stricter rule ; in
few States, indeed, did the subject receive much development
prior to the second half of this century ; while the policy of the
engagements, nor against separate es- Patton v. Charlestown Bank, 12 W.
tate wliich was subject to a restraint Va. 587; Wells v. Tliorman, 37 Conn,
on anticipation. Pike v. Fitzgibbon, 17 319 ; Leaycraft v. Hetlden, 3 Green Ch.
Ch. D. 451; 23Ch. D. 712. See § 110. 512; Fears v. Brooks, 12 Ga. 200;
1 Jaques v. Methodist Episcopal Bradford v. Greenway, 17 Ala. 805;
Church, 17 Johns. 548; Methodist Shipp r. Bowmar, 5 B. Mon. 163; Kir-
Episcopal Church r. Jaques, 1 Johns, win i\ Weippert, 46 Mo. 532.
Ch. 450; 3 ib. 11; 2 Kent, Com. 164; 2 2 Kent, Com. 164, and cases cited;
McChesney v. Brown, 25 Gratt. 393; Schouler, Hus. & Wife, § 246.
203
§ 136 THE DOMESTIC RELATIONS. [PAET II.
married women's acts themselves, in most jurisdictions, must
be opposed to making such legislation disadvantageous to her
interests. Hence a course of precedents, of later years, hardly
less abstruse and irreconcilable than those of the English
chancery, but somewhat independent of them. This doctrine
may better be studied at length in our next chapter, in connec-
tion with legislative changes affecting the wife's right of dis-
position in this country. To this extent, however, American
courts occupy sure and uniform ground, namely, that while a
married woman may not be bound personally by her contract,
the rule under the statutes and independently of them ^ is, that
when services are rendered her by her procurement, or she con-
j tracts a debt generally, on the credit and for the benefit of her
/ separate estate, there is an implied agreement and obligation
I springing from the nature of the consideration, which the courts
I will enforce by charging the amount on her separate property
j as an equitable lien.^
In American chancery courts, in fact, the charging of the
wife's separate estate by equity proceedings is presented with
reference sometimes to her equitable, and sometimes to her
statutory, separate estate. In some States the complete juris-
diction of trusts for separate use is the creature of recent stat-
ute ; ^ in others, the rule is deliberately admitted, in chancery,
to differ as to statutory and equitable separate estate ; * in
others, once more, chancery seeks, and with true consistency,
to apply one and the same principle where it takes jurisdiction
of separate estate at all. The discrepancy of all these modern
American authorities relates chiefly, (1) to determining the lia-
bility of the wife's equitable or statutory separate estate for
1 Wilson r. Jones, 46 Md. 349; Coz- Turner i'. Kelly, 70 Ala. 85; 39 Ark.
zens V. Wliitney, 3 R. I. 79; Harsh- 357; Shuyder t'. Noble, 94 Penn. St.
berger ». Algler, 31 Gratt. 52. 286; 99 Penn. St. 226. See as to a
2 Owen V. Cawley, 36 N. Y. 600; vendor's lien. 84 Ind. 594.
Ballin v. Dillaye, 37 N. Y. 35; Arm- If the wife's separate estate is for
strong V. Ross, 5 C. E. Green, 109 ; life, she may charge it freely for that
Buckner v. Davis, 29 Ark. 444 ; Dale period. 76 Va. 207.
V. Robinson, 51 Vt. 20 ; Eliottc. Gower, » See Hoar, J., in Willard v. East-
12 R. I. 79; 18 Fla. 809. And so, too, ham, 15 Gray, 328.
in contracting a debt for the pur- * Musson v. Trigg, 51 Miss. 172;
chase-money of her separate estate. Robinson v. O'Neal, 56 Ala. 541.
204
CHAP. X.] DOMINION : WIFE's EQUITABLE PROPERTY. § 187
debts and engagements not beneficial to the wife herself, or to
the estate, but, if at all, for her husband's or a stranger's benefit,
and (2) to fixing the nature of the evidence of intention required
for such charges. The equitable rule in the United States, more ;
common prior to the married women's acts, appears to have
been, that the wife's separate estate would be held liable for all
debts which she, by implication or expressly, by writing or by
parol, charged thereon, even if not contracted directly for the
benefit of the estate.^ But such is by no means the rule to-day.
§ 136 a. Property -with Power of Appointment. — Property
limited to such uses as a married womnn shall appoint is not
separate estate. There is a difference between property subject
merely to her power of appointment, and property settled to
her sole and separate use. In the former instance she may
dispose of the estate by executing an instrument according to
the strict letter of her authority. In the latter, she is invested
with a beneficial interest and enjoyment, however restricted
may be the dominion allowed her by the donee. A married
woman may, however, be expressly authorized to appoint by
will and not by deed, and the exercise of such power in favor
of volunteers may render the appointed funds assets for the
satisfaction of debts properly chargeable against her separate
estate.^ In general, equity permits a married woman to dispose
of property according to the mode, if any, prescribed by the
instrument under which the separate use is created.^
§ 187. Wife's Right to Bestow upon Husband, Bind for his
Debts, &c. — A married woman, save so far as she is restrained
from anticipation by the terms of the trust, may bestow her
separate property upon her husband by virtue of her right of
disposal ; although at common law no such thing is known as
a gift between husband and wife. She may likewise transfer
it to him for a valuable consideration.* But acts of this sort
1 2 Kent, Com. 164 ; 2 Story, Eq. 17 Johns. 548; Scliouler, Hus. & Wife,
Juris. §§ 1.S98, 1401, and cases cited; § 247. As to a power of sale in a
Ballin v. Dillaye, 37 N. Y. 35. mortgage to lier, see 58 Md. 491.
2 Re Harvey, 28 W. R. 73. < Lyn v. Aslitnn, 1 Russ. & M. 190 ;
3 McChesney v. Brown, 25 Gratt. Macq Hus. & Wife, 297; 2 Kent, Com.
393; Knowles v. Knowles, 86 111. 1; 111; Ciiarles v. Coker, 2 S. C. N. s.
Jaques v. Methodist Episcopal Chiu-ch, 123.
205
§ 137 THE DOMESTIC RELATIONS, [PART II.
are very closely scrutinized ; and undue influence on the part
of the husband, or the fraud of both husband and wife upon
creditors of either, will often explain the motive of such trans-
actions, and suffice for setting them aside in equity.^ The fact
that the husband receives the capital of his wife's separate
property raises the inference, not of a beneficial transfer to him,
but of a transfer to him as her trustee.^ A gift to him requires
clear evidence, such as acts of dominion, or the use of the prop-
erty for his business or to execute his marital obligations.^
So may the wife, unless specially restrained by the trust, bind
her separate property for her husband's debts.* It is also well
settled, both under the married women's acts of our respective
States, and independently of them, that a married woman may
execute a mortgage jointly with her husband to secure his debts,
in which .case she is to be regarded as his surety ; and this
applies to lands held in her right, whether conveyed to her
separate use or not, provided the conveyance be executed by
husband and wife jointly after the usual manner of such instru-
ments under the statute, and no duress was imposed upon her.^
But if the transfer does not follow the statute form, equity will
not sustain it.^ And she may pledge her separate personal
property as security in like manner.'^ She may draw drafts as
the trustee of her separate property by way of binding the
property.^ And her separate estate will be bound by any debt
properly contracted by her, even though her husband should be
the creditor.^ A gift or conveyance by a wife to her husband,
1 Pybus !'. Smith, 1 Ves. 189. Ch. 129; Vartie v. Underwood, 18
2 Rich V. Cockell, n Ves. 360 ; Rich- Barb. 561 ; Bartlctt v. Bartlett, 4 Al-
ardson v. Stodder, 100 Mass. 528. len, 440; Short v. Battle, 52 Ala. 456;
3 Shirley v. Shirley, 9 Paisre, 363; Young v. Graff, 28 111. 20; Watson v.
Rowe V. Rowe, 12 .Tiir. 909. See fur- Thurher, 11 Mich. 457 ; Schouler, Hus.
ther, Schouler, Hus. & Wife, § 248. & Wife, § 24i» ; 58 N. H. 490; 36 N. J.
The wife's bond, executed to her Eq. 48 ; 60 Ala. 476.
husband, has been sustained in tlie The method of conveying the wife's
English chancery. Heathey v. Thomas, general lands under our modern local
15 Ves. 596. statutes is shown stijmi, §§ 94, 95.
4 Schouler, Hus. & Wife. §§ 249, 250 ; ^ See e. cj. 87 N. C. 106.
2 Kent, Com. Ill, and cases cited; 2 "^ Witsell v. Charleston, 7 S. C. 88.
U. S. Eq. Dig., Has. & Wife, 18 ; Dal- 8 Bain r. Buff, 76 Va. 371.
lam V. Walpole, Pet. C. C. 116 ; Charles » Gardner v. Gardner, 7 Paige, 112.
V, Coker, 2 S. C. N. s. 123. She cannot charge her separate estate
6 Demarest v. Wvnkoop, 3 Johns, by a deed of trust executed jointly
206
CHAP. X.] DOMINION : WIFE'S EQUITABLE PEOPERTY. § 138
if fraudulently or forcibly procured by him, will be set aside in
equity upon her representation ; so, too, where it was intended
for his security, but taken out as absolute ; ^ but if the rights
of a hona fide purchaser without notice of the fraud or force
have intervened, her own rights may be impeded in the latter's
favor.2
§ 138. Concurrence of Wife's Trustee, •whether Essential. —
Consistently with the wife's right of dominion over her separate
estate, the rule, both in English and American chancery courts,;
is, that the concurrence of the trustee of the fund is not essen- )
tial to the validity of her disposition thereof.^ On the contrary,
if she has the absolute beneficial enjoyment of the fund by the
terms of the trust (there being no clause in restriction of her
power), or in such manner, if it be real estate, that the statute
of uses would execute the title or use in her, she can compels
the trustee to make immediate conveyance or transfer to her
of the trust fund, and if they refuse they are liable to costs.* i
Even if the gift be to her husband or for his benefit, the trustee
must transfer and give legal effect to the alienation, as in other
instances of disposition on her part, reserving, of course, the
right to show bad faith or undue influence affecting the validity
of the transfer or conveyance, and so defeating it.^
with her husband to indemnify the And where the husband makes the
surety on a recoguizanc^e of lier son. note and the wife indorses, the wife's
Cliandler !'. Morgan, 60 Miss. 471. Nor separate estate is liable accordingly,
will slie be charged against her benefit 19 W. Va. 866.
where she gives no valid security upon ^ Essex r. Atkins, 14 Ves. 552 ; Cor-
such property. 19 Fla. 275. gell v. Dunton, 7 1-enn. St .5.S2 ; Jaques
1 Stumpf V. Stumpf, 7 Mo. App. v. Methodist Episcopal Church, 17
272; Fargo v. Goodspeed, 87 III. 2flO. Johns 548.
2 G'Harai'. Alexander, .56 Miss. .316. •» Clerk v. Laurie, 2 Hurl. & Nor.
For English rule see also Schouler, 10!); Peachey, Mar Settl. 292 ; Schou-
Hus. & Wife, §249; Dixon v. Dixon, ler, Hus. &' Wife, § 250; Taylor v.
L. R. 9 Ch. D. 587. Glanville, 3 Madd. 179; North Ameri-
The separate property acquired by can Coal Co v. Dyett, 7 Paige, 1 ; Gib-
a married woman after judgment is son v. Walker, 20 N. Y. 476. And
rendered against her may be subjected see Lewis v. Harris, 4 Met. (Ky.) 3.53.
to payment of the judgment. 60 Miss. But see Noyes v. Blakeman, 2 Seld.
870. But cf. English rule, § 135. 567 ; s. c. 3 Sandf. 531, as to the effect
A promissory note executed by a of New York statute relative to tlie
wife and husband jointly is a charge declaration of trusts,
on the wife's equitable separate estate. ^ Essex v. Atkins, 14 Vos. 542 ; Mar-
McKenna v. Rowlett, 68 Ala. 186. rick v. Grice, 3 Nev. 52; Standford
207
§139 THE DOMESTIC RELATIONS. [PART II.
But if, on the other hand, the instrument requires the written
approval of the trustee expressed in a certain manner, that re-
quirement must be complied with to make even the joint con-
veyance of husband and wife effectual ; ^ and it is incumbent on
every trustee to see that all restrictions on the wife's dominion
over the fund are duly respected.^
§ 139. Whether Wife must be specially restrained under the
Trust. — In absence of all technical clauses, our general rule is
that the wife, unless specially restrained by the terms of the
trust under which she acquired her equitable separate property,
may dispose of it at pleasure. Jaques v. Jfethodist Episcopal
Cluirch went so far as to rule that, though a particular mode of
disposition be specifically pointed out in the instrument, this
will not preclude the wife from adopting any other mode of
disposition, unless she has been, by express language of the
trust, specially restrained to that particular mode.^ In this
latter doctrine Cl)ancellor Kent (whose judgment in the lower
court had been reversed *) did not concur, — adopting the more
conservative view with reference to such restrictions. The dis-
tinction is rather a nice one, and successive American decisions
in other States have generally sustained the Chancellor's views,
which seem indeed most consonant to reason and the intent of
such trusts ; but the cases are, on the whole, conflicting, and
not very conclusive.^ Both English and American precedents
V. Marshall, 2 Atk. 69 ; Knowles v. pose by deed in concurrence with her
Knowles, 80 111. 1. husband, or by will without it, her re-
1 Gelston v. Frazier, 26 Md. 329. ceipt "alone" to be a sufficient dis-
Trustee's assent held indispensable in charge as to rents, issues, and profits ;
81 Va. 380. the wife cannot appoint by deed, or
~ Hopkins v. Myall, 2 R. & M. 86 ; charge the property by her sole bond,
McClintic v. Ochiltree, 4 W. Va. 249. note, parol promise, &c.
See Horner v. Wlieelwrlght, 2 Jur. Hoar, J., in Willard v. Easthain, 15
N. s. 3t37 ; Frostburg Association v. Gray, 328, appears to have misappre-
Hamill, 55 Md. 313. bended this point- Sec Schouler, Has.
3 Jaques v. Methodist Episcopal & Wife, § 251.
Church, 17 Johns. 548 ; Methodist ^ gge Tnllett ?'. Armstrong, 1 Bcav.
Episcopal Church r. Jaques, 1 Johns. 1, at length, for tlie English doctrine.
Ch. 450 ; 3 ib. 77. For American authorities, see 2 Kent,
* 3 Johns. Ch. 77. The point con- Com. 165, 166, and cases cited in last
tended for by the Chancellor, but dis- edition. Also Schouler, Hus. & Wife,
approved on appeal, was, that if a wife § 262.
has power expressly conferred to dis-
208
CHAP. X.] DOMIXTON : WIFE'S EQUITABLE PROPERTY. § 141
agree in the converse principle, that if, by the terms of the
trust, the wife is expressly restrained to a particular mode of
dealing with the separate fund, she cannot, even by proceedings
in equity, be enabled to pursue any other inconsistent mode.^
§ 140. Wife's Participation in Breach of Trust with Husband
or Trustee. — The separate estate of married women may be
affected, and their rights barred, by active participation in
breaches of trust.^ But on the other hand, to preclude the
wife from the right to relief simply because she has improperly
permitted her husband to receive the trust funds, would be to
defeat the very purpose for which the trust was created, —
namely, the protection of the wife against her hu.sband. Hence,
according to the latest and best authorities, the court must be
satisfied that the husband has not in any degree influenced her
acts and conduct, before it holds her separate estate to be af-
fected ; and this, upon the most jealous investigation.-^
Where her husband and the trustee of the fund, by way of
fraudulent collusion to deprive her of her property, make an
improper transfer thereof out of her separate use, her assent
will not be readily presumed to the transaction from circum-
stances, while she remained in ignorance of it.*
§ 141. Income to Husband ; One Year's Arrears. By the or-
dinary rule of the English chancery courts a wife is precluded;
from recovering the arrears of income on her separate estate for
more than a year, upon the ground of a supposed gift to her
husband.^ As to whether one year's income can be recovered
or not there is much discrepancy in the English cases ; but the
better opinion, even here, is that the husband has been allowed
by the wife presumably to receive and appropriate her income
from year to year, unless, by a consistent course of dissent, the
wife, on her part, rebuts such presumption, in which case her
1 Ross V. Ewer, 2 Atk. 156; Schou- § 254; Carpenter v. Carpenter. 27 N. J.
ler, Hus. & Wife, §§ 237, 238, 247, 252. Eq 5:^2 ; Clive v. Carew, 1 John. &
2 Peachey, Mar. Settl. 276 ; Ryder Hem. 199.
V. Bickerton, 3 Swanst. 80, n. ; Lord 4 Dixon v. Dixon, L. R. 9 Ch. D.
Montford v. Lord Cadogan, 19 Ves. 587.
635. 5 Peachey, Mar. Settl. 291, and cases
3 Per Sir George Turner, Hughes y. cited; Rowley ;). Unwin, 2 Kay &
Wells, 9 Hare, 773. And see author- Johns. 142; Arthur v. Arthur, 11 Ir.
ities cited, Schouler, Hus. & Wife, Ch. 513.
1* 209
§ 143 THE DOMESTIC RELATIONS. [PART H.
will must be respected. If the wife is insane and incapable of
assenting, or the income has not actually come to her husband's
hands, and under the trust, moreover, the income is not paya-
ble to the husband, the income will belong to her ; though here
the inclination of equity is to allow all reasonable offsets to the
husband.1
CHAPTEE XL
THE wife's dominion OVER HER STATUTORY SEPARATE PROPERTY.
§ 142. Dominion under Married Women's Acts in General. —
The doctrine of the wife's dominion over her separate estate is
at this day more generally asserted, in the United States at
least, with reference to the married women's acts ; and some of
the later cases show important variations from the equity rule,
as we shall proceed to notice. The decided change seems to
date, in American chancery, from the passage of the important
married women's acts, or about 1848, and in most States at this
day to affect equitable remedies with reference to both the stat-
utory and equitable separate estate of the wife.^
§ 143. Ne'w York Rule as to Wife's Charge not Beneficial. —
The obstinate case of Yale v. Dedcrcr is an important one, as es-
tablishing in a leading American State, under cover of modern
legislative policy, a new doctrine, at variance with that of con-
temporary English equity courts noted in our last chapter,^ and
apparently contrary to its own precedents.* In this case the
New York statutes of 1848 and 1849 were to be construed,
which in terms permitted the wife to hold to separate use, and
to " convey and devise " as if sole, but left her promissory note
as void as it always had been at the common law.^ A question
1 Lewin, Trusts, 550; 2 Perry, * Yale r. Dederer, 18N. Y. 265; s. c.
Trusts, § 665, and cases cited. 22 N. Y. 450.
2 Supra, § 134. ^ It appeared that the husband had
8 Supra, § 134. Cf . § 135. And see offered liis promissory note to the plain-
also §§ 136, 137. tiff in payment for certain cows which
210
CHAP. XI.] DOMINION : WIFE's STATUTORY PROPERTY. § 143
properly raised was whether, notwithstanding her legal disabili-
ties to contract remained substantially as before the statute, the
married woman might, as incidental to the complete right of
property and jus disponcndi which she took under the statute,
charge her estate for tlie purposes and to the extent which
rules of equity had heretofore sanctioned with reference to her
equitable separate estate. The decision was adverse, and the
principle of the decision was this : that, in order to create a 1
charge upon the separate estate of a married woman, as fori
instance by joining her husband in giving a promissory note, j
the intention to do so must be declared in the very contract!
which is the foundation of the charge, or else the consideration !
must be obtained for the direct benefit of the estate itself. -
Later New York decisions follow the rule of this case, and
require a distinct written obligation to bind the wife where the
debt is not contracted for the direct benefit of the estate.^
The decision in Yale v. Dcdercr, on its second appeal, made a
profound impression among chancery jurists, the novelty of the
he wished to purchase ; that the plain-
tiff, doubting his solvency, required
liiin to procure iiis wife to unite in a
note with him. This he did. The
note was subsequently renewed. At
the time of signing the note Mrs.
Dederer remarked that if her husband
was not able to pay it, she was. The
husband turned out insolvent after-
wards, and judgment on the note was
returned nulla bona as against him.
It was established that the wife had
sufficient real estate, held in lier own
right, to satisfy the claim ; and the
judge, who heard the evidence, stated
in his finding that" the defendant, Mrs.
Dederer, intended to charge, and did
expressly charge, her separate estate
for tlie payment of the note." The
Court of Appeals nevertheless held
that Mrs. Dederer was a mere surety
for her husband ; and that being such,
although it was her intention to charge
her separate estate, such intention did
not take effect. We may add that Yale
V. Dederer was passed upon by the New
York Court of Appeals three several
times. After the first appeal, 18 N. Y.
205, the court below, which would at
first have entered judgment to sell,
found that the wife actually intended
to charge her separate estate with the
promissory note in question. Hence
the principle so broadly asserted as to
evidence in writing on the second ap-
peal (22 N. Y. 450); Selden, J., ob-
serving that hereafter married women
were not to be indebted to equity merely
for protection in their separate estate.
A third time (see 68 N. Y. 329), or about
1877, the case went up on appeal ; the
effort upon the last trial being made to
take the case out of the rule by evi-
dence, but it was held that the findings
as to the circumstances and intent were
not inconsistent with the idea that the
defendant had signed as surety.
1 White V. McNett, 33 N. Y. 371 ;
Ledlie v. Vrooman, 41 Barb. 109 ;
White V. Story, 43 Barb. 124 ; Mer-
chants' Bank v. Scott, 59 Barb. 641 ;
Saratoga Co. Bank v. Pruyn, 90 N. Y.
250. And see 101 N. Y. 434, where the
wife had no separate estate.
211
§ 143 THE DOMESTIC RELATIONS. [PART II.
married women's act favoring this result, and likewise the cir-
cumstance that chancery jurisdiction had hitherto been taken
more liberally in New York than in other States in the Union-
Opinions differed as to the merits of the decision, but not as to
the boldness of the innovation upon chancery precedents. It
does not appear that this doctrine has found favor in all the
other States. In Wisconsin, the decision of Yale v. Dcderer
was unsparingly condemned soon after, in the course of judicial
discussion.' And for several years the more common equitable
rule in this country still seemed to be that the wife's separate
estate would be held liable for all debts which she by implica-
tion or expressly, by writing or parol, charged thereon, even if
not contracted directly for the benefit of the estate.^ For the
wife's debts are charged in justice upon her separate estate, not
because of her power to make a valid written or verbal contract,
but because it is right that her debts should be paid.^
But influences were at work to bring other jurisdictions to
reject the loose discretionary powers which English precedents
appeared to have established against, as well as favorably to,
the interests of married women. In Massachusetts, at a term
of 1860, the Supreme Court, called for the first time to exercise
full equity powers under a statute then recent, followed the
rule of Yale v. Dcderer, in a similar case of married women's
suretyship.'* The English chancery itself, finding occasion in
1861 to consider the subject of separate estate liability for a
wife's unbeneficial dealings,^ showed a new inclination to dis-
criminate for the protection of a wife's separate estate in such
1 Todd V. Lee, 15 Wis. ZQh. ^ Cummins v. Sliarpe, 21 Ind. 3.31 ;
'^ Pentz V. Simonson, 2 Beasl 232 ; Pentz r. Simonson, 2 Beasl. 232 ; Glass
Grapengether v. Fejervary, 9 Iowa, r. Warwick, 40 Penn. St. 140. But see
163; Rogers v. Ward, 8 Allen, 387; Maday i-. Love, 25 Cal. 307 ; Hanly i;.
Mayo V. Hutchinson, 57 Me. 546 ; Ma- Downing, 4 Met. (Ivy.) 95.
jor V. Symmes, 19 Ind. 117 ; Oakley r. < Willard v. Ea.stliam, 15 Gray, .328.
Pound, 1 McCart. 178; Miller v. New- The volume of Reports containing this
ton, 23 Cal. 554 ; 2 Kent, Com. 104 ; opinion was not, liowever, published
2 Story, Eq. Juris. §§ 1.398, 1401. See before 1869.
Koontz I'. Nabb, 16 Md. 549 ; Knox r. ^ That is, for buying stock in trade
Jordan, 5 Jones Eq. 175; McFaddin for her separate business. This case
V. Grumpier, 20 Tex 374; Phillips v. was Johnson v. Gallagher, 3 De G. F.
Graves, 20 Ohio St 371 ; Avery v. Van- & J. 494 ; supra, § 135.
sickle, 35 Ohio St. 270 ; §§ 136, 137.
212
CHAP. XI.] DOMINION: WIFE'S STATUTORY PROPERTY. § 144
iustances. On the whole, therefore, while the lines of American
and English decisions of late do not run parallel, and States
themselves are discordant as to burden of proof and as to
admitting or denying the New York and Massachusetts doc-
trine,— some States holding it immaterial in equity whether
the wife's debt be evidenced by a written instrument or parol
promise,^ — the tendency on both sides of the water is towards
the conclusion that the debts of a married woman having sepa-)
rate property are only to be surely charged by a court of equity
upon that separate property, and payment enforced out of it,|
when it was contracted by her for its benefit, or expressly made '.
a charge thereon or expressly contracted on its credit ; ^ and, of '
course, to the extent only to which the wife's power of disposal
may go.'^
§ 144. Combined Tests; Benefit and Express Intention. — The
equitable rule in which American cases, together with the latest
English cases,"* generally agree, whether with reference to the
equitable or statutory separate property of the wife, is, that the
separate estate of a married woman becomes chargeable with
the due performance of her engagements or obligations made or
incurred upon its express credit or for its benefit.^ Benefit is
not the sole test ; but, to the extent of her power of disposition
1 Miller y. Brown, 47 Mo. 505. Young, 2 Tenn. Cli. 768; Nelson v.
2 See supra, § 1.j5 ; Armstrong v. Miller, 52 Miss. 410. But other cases
Ross, 5 C. E. Green, 109 ; Kantrowitz are to the contrary. Metropolitan
V. Prather, 31 Ind. 92; Hasheagan r. Bank v. Taylor, 62 Mo. 3:38; Mayo y.
Specker, 36 Ii.d. 413 ; Perkins v. Elliott, Hutchinson, 57 iMe. 546 ; supra, p. 212.
7 C. E. Green, 127 ; Patrick v. LittcU, The rule is regarded as settled in New
36 Ohio St. 79, and authorities cited ; York, that, in order to charge the es-
Westgate i'. Munroe, 100 Mass. 227 ; tate of a married woman with a debt
Nash V. Mitchell, 71 N. Y. 199 ; Wilson not contracted for the benefit of her
V. Jones, 46 Md. 349 ; Wallace r. Fin- separate estate, the intent to charge
berg, 46 Tex 35; Williams r. Hugunin, such estate, where the obligation is in
69 111. 214; Stillwell r. Adams, 29 Ark. writing, must be expressed in the in-
34o ; Pippen v. Wesson, 74 N. C. 437 ; strument. Yale v. Dederer, 68 N. Y.
58 Vt. 474 ; 44 Mich. 80, 96. 329; cases anpru.
The doctrine of Yale v. Dederer, 3 ggp \\\^ j. Gosling, 1 Lea, 560.
whether by statute or judicial decision. For numerous applications of this new
finds more direct support from Cozzcns rule, see Schouler, Hus. & Wife, § 258,
i;. Whitney, 3 R. I. 79 ; Jones v. Cros- and cases cited,
thwaite, 17 Iowa, 393; Perkins v. ^ Supra, %\Z?>.
Elliott, 7 C. E. Green, 127 ; Hodson ^ Patrick v. Littell, 36 Ohio St
V. Davis, 43 Ind. 258; Chatterton v. 79.
213
§ 145 THE DOMESTIC RELATIONS. [PART II.
over her separate estate, the wife may charge it with such en-
gagements as she sees fit to make, provided the evidence of
intention be satisfactory (upon which point States differ), and
provided, of course, that the transaction was voluntary on her
part, and not fraudulently procured.
In order to charge the separate estate of a married woman
with a debt, as the cases now to be examined will show, a
specific agreement to that effect is not indispensable ; but the
intent, or the creditor's right to procure such charge, may be
inferred from the surrounding circumstances.^
§ 144 rt. Wife's Separate Property bound for Family Necessa-
ries, &c. — Various State codes now render a wife's separate
property expressly liable for family necessaries and articles for
the support of the household as well as her own comfort,
wherever at least the sale was made on the faith of such prop-
erty or upon her credit ; ^ and the liability thus indicated is
sometimes her own, though more naturally that of the hus-
band or of both husband and wife. Such codes are to be fairly
construed with reference to a wife's obligation.
§ 145. Whether Wife may bind as Surety or Guarantor. —
Where a married woman having separate estate executes a
promissory note as surety for another (inclusive of her hus-
band), such estate is presumably charged with its payment in
Ohio,^ jVIaine, Missouri, and some other States. But the rule,
1 Conlin v. Cantrell, 64 N. Y. 217; dwelling-house where a husband and
Harshberger v. Alger, 31 Gratt. 52. wife and their children are living to-
2 Tiemeyer i\ Turnquist, 85 N Y. gether, nor a promissory note given by
516 ; 66 Ala. 315 ; 68 Ala. 402 ; Wright the husband, which describes him as
r. Strauss, 73 Ala. 227; Marquardt v. trustee for the wife, in payment for
Flaugher, 60 Iowa, 148; 76. 86. To such supplies, can be charged in equity
constitute such family expense, the upon the wife's sei)arate estate, without
article must have been acitually used clear proof that she contracted tiie debt
in the family. 55 Iowa, 702. And see on her own behalf, or intended to bind
79 Ky. 279. A joint purchase of her separate estate for its payment,
necessaries by husband and wife is Dodge !?. Knowles, 114 U, S. 430; § 128.
presumed to be on the husband's sole And see Hart v. Goldsmith, 51 Conn,
credit. 103 Penn. St. 396. But wliere 479.
the husband was known to be insol- For the wife's own wearing-apparel
vent, reliance is plai-ed rather upon the she may give her binding notes. 103
wife's property. 70 Ala. 522. Ind. 512.
It should be borne in mind that ^ Sumhle a conclusive presumption,
apart from such statutes, neitlier tiie 39 Oiiio St. 516.
liability for provisions supplied at a
214
CHAP. XI.] DOMINION : WIFE'S STATUTORY PROPERTY, § 145
as we have seen, is (or was lately) otherwise in New York and
Massachusetts and New Jersey, and the same may be said as to
New Hampshire, Georgia, South Carolina, Tennessee, Nebraska,
and other States. In Louisiana a married woman may bind
herself as surety for any one except her husband.^ In some
States a wife cannot make herself liable on her contract of
suretyship for any one.^
A married woman's promissory note does not, as a rule, se-
cure her husband's debts, nor does she, by executing it, bind
herself lawfully as his surety or guarantor on a contract not
relating to her separate estate, nor for its benefit, so as to ren-
der herself liable to suit.^ The same may be said, though per-
haps with more reserve, of her undertakings for the benefit of
third parties ; as a mere accommodation indorser, for instance.*
The tendency of some of the late cases is to exempt promissory
notes which are drawn payable to a married woman or order
from all liability for the husband's engagements ; a presumption
being thus afforded that the money is due to her and not to her
husband.^
1 Schouler, Hus. & Wife, § 260, and
cases cited. 24 S. C. 51 ; 61 N. H. 129.
2 79 Ky. 29.
3 Parker v. Simonds, 1 Allen, 258 ;
Shannon c. Canney, 44 N. H. 592, and
numerous cases cited in Schouler, Hus.
& Wife, § 260.
* Shannon v. Canney, 44 N. H. 592 ;
Crane v. Kelley, 7 Allen, 250; Kohn v.
Russell, 91 111. 138 ; Bailey v. Pearson,
9 Post. 77 ; Lytle's Appeal, 30 Penn.
St. 131; Peake o. La Baw, 6 C. E.
Green, 269 ; Bauer v. Bauer, 40 Mo.
61.
5 See Cowles v. Morgan, 34 Ala.
535 ; Lewis v. Harris, 4 Met. (Ky.) 353 ;
Chapman v. Williams, 13 Gray, 416;
Paine v. Hunt, 40 Barb. 75 ; Tooke v.
Newman, 75 111. 215. Since the second
decision in Yale v. Dederer, the New
York statute of I860 provides that any
married woman possessed of real estate
as her separate property may bargain,
sell, and convey such property, and
" enter into any contract " in reference
to the same. By way of construing
this statute, together with the prior
acts of 1848 and 1849, the New York
Court of Appeals has charged a mar-
ried woman as party without consider-
ation to a promissory note, where she
added, as promisor or special indorser,
express words charging the payment
of the note on her separate property.
Corn Exchange Ins. Co. v. Babcock,
42 N. Y. 613; Knowles v. Toone, 96
N. Y. 534. She may therefore now
become a surety or guarantor, by force
of statute, not only in New York but
in some other States, though the stat-
ute of frauds must apply to her oral
promise to be liable for another. Wool-
sey V. Brown, 74 N. Y. 82 ; Hart v.
Grigsby, 14 Bush, 542; Northwestern
Life Ins. Co. r. Allis, 23 Minn. 337.
In New Jersey, on the other hand, so
long as no such power was given under
statute for the married woman to dis-
pose of her separate property as has
been conferred by the New York legis-
215
§ 146 THE DOMESTIC RELATIONS. [PART II.
§ 146. Inquiry into Consideration Pertinent ; Promissory
Note, Bond, &o. — Inquiry into consideration is always perti-
nent under the equity rule, and in States where the wife is not
invested with plenary power of legal disposition under appro-
priate statutes. This applies to the wife's promissory note,
which, as the law stands, apart froni statute, cannot be a safe
investment for any one ; for its value consists in the proof that
it was a contract on her part, and a binding contract, relative
to her separate property, within the general rule. Even in
Massachusetts, where the wife's mortgage on real estate duly
executed is upheld, a note secured by it, if for unbenelicial con-
sideration, such as the husband's indebtedness, could not be
enforced.^ But the latest legislation in Massachusetts does
not require the consideration of a wife's contract to enure to
her own benefit, and her joint note with her husband, or her
indorsement, binds her to quite or nearly the same extent as
that of any single woman.^
But whether by promissory note, bond, oral or written
promise, the instrument and the proof, taken together, must
disclose the intention ^ to charge her separate estate expressly,
or else some beneficial object for which the money was raised.
If a loan is made to the wife, the purpose of that loan must
be established by the lender as the test of his right to re-
lature, equity has refused to recognize make a contract of suretyship or guar-
any power in a married woman, inde- anty is still denied. Russel v. People's
pendently of appropriate legislation, to Savings IBank, 39 Mich. 671 ; 51 Mich,
charge her separate statutory estate 626. And quite generally her simple
by any writing, even thougli it contain indorsement of a bill or note is held to
words which show a clear intention to be inoperative beyond divesting her of
bind such estate, except by a mortgage a title therein. Moreau v. Branson, 37
acknowledged as required by law, or Ind. 195.
for debts contracted for the benefit of ^ Heburn v. Warner, 112 Mass. 271.
her separate estate, or for her own And see Wright v. Dresser, 110 Mass.
benefit on the credit of it ; and hence 61 ; 49 Mich. 538.
it declines to impose a lien on the ^ Major v. Holmes, 124 Mass. 108 ;
wife's separate estate because of her Kenworthy v. Sawyer, 125 Mass. 28 ;
note as surety, even though by express Goodnow c. Hill, 125 Mass. 587.
words she charges the payment of that ^ The presumption is that a contract
note on her separate property. Perkins entered into by a married woman hav-
V. Elliott, 7 C E. Green, 127; Kolm v. ing a separate estate, for its benefit or
Russell, 91 111. 138; Dunbar w. Mize, for her exclusive benefit, was contracted
53 Ga. 4.35. But see 44 N. J. L. 245. upon the credit of her estate. Williams
In other States the wife's capacity to v. King, 43 Conn. 569.
216
CHAP. XI.] DOMINION : WIFE'S STATUTORY PROPERTY. § 148
cover.i So, too, if she gives a bond, whether as surety or other-
wise,^ or signs or indorses a promissory note.^ And in some
States, even in equity, as to her properly executed conveyance
of real estate.^ But, on the other hand, the general property
rights of married women being now recognized by sundry stat-
utes, their right in equity to make contracts affecting their prop-
erty is no longer limited to property settled formally to a sole
and separate use ; and although in numerous instances statu-
tory requisites for making the contract binding in law may
be wanting, equity will bind her property, nevertheless, where
she or her estate has received the benefit of the transaction.^
We speak here with a constant reservation of feme hoU liabil-
ities acquired under local statutes which may affect all such
issues ; ° for after all, as the later married women's acts are con-
strued in some States, a wife may bind her separate property
with little or no restriction, by giving or indorsing her prom-
issory note7
§ 147. Equity charges Engagement on General as -well as
Specific Property. — Equity will charge a debt, and even one
with mortgage or other collateral security upon specific prop-
erty, upon the wife's separate property generally, so long as the
debt was contracted for the benefit of the wife's separate prop-
erty.^ At law, of course, there may be no such remedy ; and
yet it should be borne in mind that local legislation frequently
extends the legal rights of a married woman in this same
direction.
§ 148. Married Woman's Executory Promise ; Purchase on
Credit. — In general it is held that a married woman cannot
become personally liable on her general or executory promise
except it concern expressly, under general rules, her benefit or
1 Way v. Peck, 47 Conn. 23; Viser * Sutton v. Aiken, 62 Ga. 733.
V. Scruggs, 49 Miss. 705. ^ I^onovan's Appeal, 41 Conn. 551.
2 (josman c Cruger, 69 N. Y. 87. ^ As to evidence in such eases, see
In Georgia a ioHa/zWe holder of such Schouler, Hus. & Wife, § 262.
a note, before maturity and without "^ Boatmen's Savings Bank v. Col-
notice, is protected. 70 Ga. 322. lins, 75 Mo. 280; 68 Ga. 255; Mathes
3 Cases mpra ; Flanders r. Abbey, 6 v. Shank, 94 Ind. 501 ; 15 S. C. 602.
Bis. 16 ; Conrad v. Le Blanc, 29 La. Consult local code and practice ; § 157.
Ann. 123. Or confesses judgment. 64 8 Armstrong v. Ross, 5 C. E. Green,
Md. 95. 109.
217
§ 148 THE DOMESTIC DELATIONS. [PAET II.
her separate estate. Hence a note given by her upon any other
consideration is void/ even though it be in the hands of a hoiia
fide holder.^ The wife's bond for payment of money does not
bind her personally.^ The wife cannot become a general bor-
rower, even though she give a promissory note or security in
the same connection.^ She is not liable on her mere contract
to purchase land.^ Her general engagements, in a word, without
the scope of the general rules we have stated, will create no
charge upon her separate property enforceable in equity.^ Some
States, however, under their liberal enabling acts, and es-
pecially the later ones, repudiate such restrictions upon the
jus disjyonendiy
There is some difficulty in the purchase, by a married woman,
of property, whether real or personal, on credit, arising out of
the circumstance that she cannot make a contract for payment
which will be personally binding.^ There is much logical con-
fusion on this point ; and the true equity rule appears to be to
regard not so much the credit as the consideration of that
credit, whether it were for her benefit or on express credit of
the separate property. Where the wife cannot be sued upon
1 Kenton Ins. Co. v. McClellan, 43 rowed, wherewith to make such pur-
Mich. 504 ; Pippeu r. Wesson, 74 N. C. chase, was void. Ames v. Foster, 42
437; Stokes v. Shannon, 55 Miss 583. N. H. 381. But see later statutes of
- Kenton Ins. Co. v. McClellan, 43 tliis State. Batchelder v. Sargent, 47
Mich. 564. N. H. 262 ; Blake v. Hall, 57 N. H. 382.
3 Huntley v. Whitner, 77 N. C. 392 ; See also Thompson v. Weller, 85 III.
Vandyke v. Wells, 103 Penn. St. 49. 197. On the other hand, the New
* O'Daily v. Morris, 31 Ind. Ill; York doctrine is that she may pur-
Way V. Peck, 47 ('onn. 23; Viser v. chase property on credit; and if tlie
Scrusjgs, 49 Miss. 705. vendor will run the risk of being able
^ Scarlett v. Snodgrass, 92 Tnd. 262. to obtain payment of the consideration
8 Williams '\ Hugunin, 69 111. 214 ; of tlie sale, the transfer remains valid,
supra, § 144 ; Huyler v. Atwood, 26 N. and no estate will pass to the husband,
J. Eq. 504 ; Stillwell v. Adams, 29 Ark. whether the wife had previously any
346. separate estate or not. Darby v. Calli-
" See Allen v. Fuller, 118 Mass. 402; gan, 16 N. Y. 21 ; Knapp v. Smith, 27
Knapp V. Smitli, 27 N. Y. 277. N. Y. 277. So in other States. Chap-
8 In New Hampshire it was held man v. Foster, 6 Allen, 136; Shields v.
that a married woman could not, under Keys, 24 Iowa, 298. And her separate
the statutes as they stood a few years estate is in fact charged, under suit-
ago, make a contract for money or able circumstances, by her purchase
property in anticipation of the pur- on credit, as we have already seen,
chase of separate estate ; and hence Sup)-a, § 145.
that her note given for money bor-
218
CHAP. XI.] DOMINION : WIFE's STATUTOKY PROPERTY. § 149
her promise to buy upon credit, she will not in equity be
allowed to decline and yet keep the property too ; and hence
lands or personal property sold her on her credit, and for the
benefit of her separate estate, have been treated as subject to
the vendor's lien, even though the notes she gave by way of
executory contract could not, as such, be enforced against her.^
And, once again, it is asserted, and quite fairly, that the sale to
a married woman on credit is a voidable contract on her part ;
that she may either recede from the bargain and claim its
annulment, or allow it to stand with a right in the vendor to
subject the specific property to the payment of the debt.^
§ 149. Married Woman's Ownership of Stock ; Employment
of Counsel. — Transfers of a married woman's stock in a cor-
poration require, under some statutes, the husband's written
assent or joinder ; under others, again, she may convey as if
sole.^ After her transfer without observance of such require-
ments, she may, upon information of her legal rights, obtain a
retransfer in equity, notwithstanding subsequent purchasers
have intervened.^ A pledge of the wife's stock is sometimes
considered.^
In Ehode Island it is held that compensation of the wife's
solicitor for prosecuting a suit in equity regarding her separate
leaseholds cannot be recovered from her separate estate.® As
to legal fees for the wife's divorce, some States still disincline
to charge her estate, in absence, at all events, of an express
undertaking on her part to that effect and genuine benefit.'^
1 Peniberton v. Johnson, 46 Mo. real property to her separate use under
342 ; Bruner r. Wheaton, ih. 363 ; Car- such circumstances. This, however,
penter I'. Mitcliell, 54 111. 1*26; Hunter is by no means a uniform doctrine.
V. Duvall, 4 Bush, 438 ; Smith v. Doe, Schouler, Hus. & Wife, § 265.
56 Ala. 456; Boland v. Klink, 63 Ga. ^ A married woman has the usual
447. liability of stockholders wlicn she holds
2 Nicholson v. Heidcrhoff, 50 Miss, stock in a national bank. Anderson v.
56. See further, Schouler, Hus. & Line, 14 Fed. Rep. 405.
Wife, § 264. * Merriam v. Boston R., 117 Mass.
The current of negative authority 241. See, further, Schouler, IIus. &
on this point turns much towards the Wife, § 268. As to the wife's deal-
purchase of real estate by the wife ; ings with a stockbroker, see 42 N. J.
and, upon what ought to be deemed Eq. 60.
more fundamental reasons than those ° 94 Penn. St. 76.
of cash or credit, it is held that a mar- ^ Cozzens v. Whitney, 3 R. I. 79.
ried woman is incapable of acquiring " Pfirshing v. Falsh, 87 111. 260.
219
§ 150 THE DOMESTIC RELATIONS. [PART II.
But in New York, professional services rendered a married
woman, as in collecting demands arising out of transactions
permitted her by the statute, are recoverable under the general
rule against her separate estate, as rendered by her procure-
ment on its credit and for its benefit.^ Contracts by the wife
for employing counsel in her property suits are in other States
sustained more or less liberally, as in Indiana ^ and Mississippi,^
and Maryland.''
§ 150. Joinder of Husband ; Wife's Conveyances and Con-
tracts. - — The rule in many States, under the inarried women's
acts, is that the husband must join the wife in contracts and
conveyances relating to her separate property. Particularly is
this true of transactions concerning the wife's real estate, upon
which topic we have already spoken.^ Contracts and convey-
ances otherwise made are not considered binding.^ The lan-
guage of the married women's acts in many States authorizes
the inference that nothing further than the written concurrence
of the husband is requisite to complete the validity of the wife's
transfer of separate personal property ; the voluntary convey-
ance of the wife with her husband passes her separate estate,
real or personal ; nor is the husband's joinder always essential
to her transfer of personal property.'' And in some States the
wife's sole deed of her separate real estate is sufficient to pass
her entire interest ; ^ tliough, so antagonistic is this to the old
common law, that a clearly enabling statute should be required.^
Following the spirit of recent legislation, some American
courts now hold the wife liable on her covenants contained in
a conveyance of her separate lands ; ^^ or her agreement to
assume a mortgage when taking a conveyance of lands so en-
1 Owen V. Cawley, 36 N. Y. 600. "^ Trader v. Lowe, 45 Md. 1.
2 Major j;. Sy mines, 19 Ind. 117; 79 8 Springer v. Berry, 47 Me. 330;
Ind. 250. Farr v. Sherman, 11 Mich. 33 ; Hale v.
3 Porter v. Haley, 55 Miss. 66. Christy, 8 Neb. 264; Libby v. Chase,
* 66 Md. 106. 5 Supra, § 133. 117 Mass. 105 ; Beal v. Warren, 2 Gray,
6 Wright V. Brown, 44 Penn. St. 447.
224; Pentz ?;. Simonsnn, 2 Beasl. 2.32; 9 See further, Schouler, Hus. &
Major V. Symmes, 19 Ind. 117 ; 67 Ala. Wife, § 269.
360; Miller ;;. Hine, 13 Ohio St. 565; lo Basford >\ Peirson, 7 Allen. 524;
Schouler, Hus. & Wife, § 269, and cases Gunter v. Williams, 40 Ala. 561 ; Rich-
cited, mond V. Tibbies, 26 Iowa, 474.
220
CHAP. XI.] DOMINION : WIFe's STATUTORY PROPERTY. § 150
cumbered.^ So specific performance is decreed against her on
her written promise to convey ; provided the contract be exe-
cuted with the formalities requisite in her conveyance.''^ And
equity will not permit the wife to avoid a sale without refund-
ing the purchase-money.'^ Under late Massachusetts statutes,
moreover, a married woman may bind herself by her separate
contract for the purchase of real estate.^ In other States her
ratification of a defective conveyance, whether directly or by
acts presumptive, is pronounced valid.^ All this, of course, is
contrary to the old rule, which in many parts of the United
States still obtains to a greater or less degree.^
A wife who joins suitably with her husband or trustee in a
conveyance of her separate or general property, so as legally to
convey it in conformity with statute, cannot afterwards assert
her equitable title so as to avoid altogether or change from an
absolute to a security title, as against a hona fide purchaser for
value, having no notice of her equitable claim ; ' nor, according
to the growing opinion, assert a present or subsequent title
after duly conveying her entire interest.^ The recitals of her
acknowledgment in the magistrate's certificate may be relied
upon by a hona fide purchaser or mortgagee.^
Under some married women's acts a lease to her, and its
covenants, as for rent or taxes, are held binding upon tlie
wife ; ^^ and so, too, a lease from her.^^
1 Huylerr. Atwood, 26N. J Eq. 504. not be released, if she offers to do so.
And see Feiiton v. Lord, 128 Mass. 466
Coolidge V. Smitli, 129 Mass. 554.
2 Woodward v. Seaver, 38 N. H. 29
Baker v. Hathaway, 5 Allen, 108. See niejrys f\ Clarke, 44 Md. 108.
Rumfelt V. Clemens, 46 Penn. St. 4-55
6 Lea, .397.
■^ Pepper v. Smith, 54 Tex. 115;
Davidson v. Lanier, 51 Ala. 818 ; Co-
8 Knight V. Tliayer, 125 Mass. 25;
Stevens v. Parish, 29 Ind. 260; Love v. King v. Kea, 56 Ind. 1. But see Bar-
Watkins, 40 Cal. 547. Cf §§ 94, 148. ker v. Circle, 60 Mo. 258.
3 KoUs V. De Leyer, 41 Barb. 208. ^ Singer Man. Co. r. Rook, 84 Penn.
* Faucett v. Currier, 109 Mass. 79. St. 442 ; Marston v. Brittenham, 76 111.
For the New Jersey rule, see Pierson 611 ; Conn. Life Ins. Co. v. McCor-
i>. Lum, 25 N. J. Eq 390. mick, 45 Cal. 580; Homoeopathic Life
5 SpafCord r. Warren, 47 Iowa, 47. Ins. Co. v. Marshall, 82 N. J. Eq. 103.
6 Botsford V. Wilson, 75 III. 133 ; *" Wortliington v. Cooke, 52 Md.
Stidham v. Matthews, 29 Ark. 650; 297; Harris?-. Williams, 44 Tex. 124;
supra, c. 6 ; Gore v. Carl, 47 Conn. 291. Alhin n. Lord, .39 N. H. 196.
Though a wife be not bound by her " Scliouler, Hus. & Wife, § 271, and
covenant to convey, the vendee will cases cited; Child v. Sampson, 117
221
§ 151 THE DOMESTIC RELATIONS. [PART II.
§ 150 a. Statutory Restraints upon Alienation of "Wife's Sep-
arate Property. — In some States a married woman is restrained
from alienation in certain instances. Thus, in Indiana, the
wife is forbidden to alienate, with or without her husband's
consent, land acquired by a former marriage, while children of
such marriage are living.^ Restraints against incumbering the
wife's separate lands as security for her husband's debts are
also found ; ^ and the more so where the husband makes no
provision for maintenance in lieu thereof.'^
§ 151. Improvements, Repairs, &c., on Wife's Lands; Mechan-
ics' Liens. — Upon the ground that the wife's separate estate
should be bound by contracts for its benefit, or upon its express
credit, her debts for improvements upon lands conveyed to her
sole and separate use have been enforced in several late in-
stances.* So, too, the joint contract or joint note of herself and
husband, or in some States her sole note or sole contract, for
lumber and materials to be used thereon. It is the declared
rule of many States that the husband cannot of his own act,
and without his wife's consent, subject the latter's separate laud
to debts for improvements, or subject it to a mechanic's lien.^
But the mechanic's statutory right of lien generally extends to
a married vi^oman's lands where she contracted in person or by
agent, and perhaps, too, where the contract was for the benefit
of the land.^ A husband's hoyia fide investment of money in
improvements upon his wife's estate cannot be subjected to sat-
isfaction of the claims of his creditors.
Mass. 62 ; Douglass v. Fulda, 50 Cal. ^ Duquesne Bank's Appeal, 96
77; Pearcy v. Henley, 82 Ind, 129; 75 Penn. St. 298.
Ala. 188. See as to the wife's right to pre-
1 85 Ind. 117; 108 Ind. 174, 292. vent fraudulent alienation of her inter-
But she may have partition or a judi- est in lier husband's land, oo Kan.
cial sale. 100 Ind. 589. The Ken- 572.
tucky code provides that no sale of a * Conway v. Smith, 13 Wis. 125;
wife's separate estate shall be ordered Fowler v. Seaman, 40 N. Y. 502; Car-
if forbidden by the deed, will, or con- penter u. Leonard, 5 Minn. 155; Schou-
tract under which the property is held, ler, Hus. & Wife, § 272.
80 Ky. 424. & Briggs i\ Titus, 7 R. I. 441 ; Spin-
2 The Indiana statute of 1879 pro- ning v. Blackburn, 13 Ohio St. 131 ;
hibited as to incumbering, but not from Schouler, Hus. & Wife, § 272.
conveying in payment of the husband's ^ Vail v. Meyer, 71 Ind. 159; Wood-
debts. 88 Ind. 81. ward i-. Wilson, 68 Penn. St. 208; An-
222
CHAP. XI.] DOMINION : WIFE's STATUTORY PROPERTY. § 152
Apart from permanent improvements, a married woman's
real estate may well be rendered liable for repairs made to her
separate estate at her own request, and as necessary for its due
preservation and enjoyment. And where a wife buys land,
gives her notes in payment, and enters with her husband and
makes improvements, the vendor's lien for his purchase-money
is favored at this day to the full extent.^
Independently, however, of enabling statutes, the written
contract of a married woman, by which she acknowledges an
indebtedness for materials and labor used to improve her sep-
arate estate, is void at law.^ And where she borrows money
to make unnecessary repairs, the lender is not favored.''^
§ 152. Mortgage of Wife's Lands. — The husband cannot
mortgage his wife's separate property for his individual debt;*
for it is a general principle that the wife's separate property
cannot be made liable for the debts of her husband or others
without her assent.^ But a mortgage given by a married
woman upon her separate estate, acknowledged in conformity
with the statute, and with the joinder of the husband, is a
valid security and capable of enforcement ; not alone where
she had it mortgaged to secure her own or her husband's debt,
but also, in a case free from fraud or undue influence, where it
was mortgaged for the benefit of a third person.^
But in all such cases the wife's rights as surety are carefully
guarded ; and the husband cannot pervert the security to her
detriment, nor bind her by his own agreement for extension or
discharge. And, on the other hand, where she is a mortfra<zee
derson v. Armstead, 69 111. 452 ; Marsh and cases cited; Danbcrt v. Eckert,
V. Alford, 5 Bush, 392; Schouler, Hus. 94 Penn. St. 255; 112 Penn. St. 284;
& Wife, § 272, and cases cited. 18 Fla. 761 ; Stafford Bank v. Under-
1 Bedford v. Burton, 106 U. S. wood, 54 Conn. 2; 45 Ark. 147.
338. All persons taking such a mort-
2 Williams v. Wilbur, 67 Ind. 42. gage are bound to ascertain that there
3 McMuIlen's Appeal, 107 Penn. lias been no fraud on the wife in induc-
St. 90. ing such a mortgage. 98 Penn. St. 561.
* Patterson v. Flanagan, 1 Ala. S. C. And see Hall v. Tay, 131 Mass. 192.
427. As to the wife's mortgage to secure the
s Hutchins v. Colby, 4.3 N. H. 159; purchase-money of land, see Merser v.
Yale ». Dederer, 18 N. Y. 265 ; Johnson Smyth, 58 N. H. 298 ; Brewer v.
V. Runyon, 21 Ind. 115. Maurer, 38 Ohio St. 548. See § 150 as
^ See Schouler, Hus. & Wife, § 274, to husband's joinder.
223
§ 153 THE DOMESTIC RELATIONS. [PART II.
in her own right, the husband cannot alone receive payment
and satisfaction and discharge the mortgage.^ The creditor's
agreement of defeasance accompanying the transaction, or cov-
enants on his part, must be faithfully observed ; ^ and as to
other security her rights are the usual ones.^ It must be re-
membered that in certain States a conservative policy is still
pursued, so as to prohibit the wife's mortgage to a greater or
less extent, and with reference, perhaps, to the beneficial nature
of the consideration.^
§ 153. Wife's Separate Property ; Husband as Managing
Agent. — The undoubted right of the wife, on general princi-
ples, to treat her husband as the trustee of her separate
property, has given rise, under the married women's acts, to
perplexing questions as between herself and his creditors. In
New York, her privileges in this respect are carried very far ;
for she may employ her husband as her managing agent to
control her property, without subjecting it to the claim of
his creditors ; the application of an indefinite portion of the
income to his support does not impair her title to the
property ; and neither he nor his creditors will acquire an
interest in the property through his services thus rendered.^
She may give him a power of attorney and require him to pur-
sue its terms carefully.^ In Illinois, too, it is well recog-
nized that the wife may make her husband her agent to
collect debts due her, to receive from others the income of
her estate, and, like other agents, to manage and control lier
separate property in her name,'^ and she may employ him
as clerk or salesman in her business ^ Such, too, is the rule
of certain other States, to the practical disadvantage of the
1 McKinney v. Hamilton, 51 Penn. secure her husband's debt is conse-
St. 63. quently void. 103 Ind. 71, 213. See
2 Lomax v. Smyth, 50 Iowa, 223. also 63 N. H. 195. See Spcrry i'. Dick-
3 Wilcox ?;. Todd, 64 Mo. 388. inson, 82 Ind. 132; 57 Mich. 247; 18
* Bowers v. Van Winkle, 41 Ind. Fla. 342; 85 Ind. 108, as to mortgaging
432 ; Lippincott v. Mitchell, 91 U. S. on a void note.
Supr. 767. See further, on this subject, ^ Buckley v. Wells, 33 N. Y. 518 ;
Schouler, Hus. & Wife, §§ 276, 277. Knapp r Smith, 27 N. Y. 277.
In some codes a married woman is ex- ^ Nasli v. Mitchell, 71 N. Y. 199.
prcssly forbidden to become a suretj' '' Patten v. Patten, 75 III. 446.
in any manner ; and her mortgage to ^ 98 111. 38, 47.
224
CHAP. XI.] DOMINION : WIFE's STATUTORY PROPERTY. § 154
husband's creditors, as well as for the wife's protection against
her husband.^
The husband's agency, whether created under suspicious cir-
cumstances or not, as regards the public, is, like other agencies,
a matter of fact for legal ascertainment upon all the proof.
The courts in Illinois go so far as to hold that the husband's
dealings with his wife's separate property will now be pre-
sumed, in the absence of proof to the contrary, to be in the
character of agent, even as to the proceeds and income thereof ;
and hence rendering him liable to account like other agents,
with allowance of his reasonable compensation, but so as to re-
quire him to establish any claim he may make of a gift or legal
transfer to him, by due proof that the wife so assented and
understood ; in short, that the common-law rights of the hus-
band to the wife's property are swept away.^ But in such a
presumption certain other States by no means concur.^
§ 154. Husband as Managing Agent; Services, Ac; Hus-
band's Creditors. — It seems to be the well-settled American
doctrine that, by working upon the wife's lands, the husband
acquires no beneficial interest therein which can be enforced in
equity on behalf either of himself or his creditors, in absence
of a definite agreement for compensation ; unless, possibly, it
could be shown to exceed in value the cost of supporting the
whole family * The crops cannot be attached by his creditors.^
Nor the betterments, buildings, and rents.^ Nor is his use,
upon his wife's farm, of teams bought with her money, a cou-
^ Aldridge v. Muirhead, 101 U. S. commit suicide is not duress of the
.397; Coleman v. Semmes, 56 Miss. wife. 43 N. J. L. 451.
321; 15 Vroom, 105; Parker v. Bates, * Buckley v. Wells, 33 N. Y. 518;
29 Kan. 597 ; Wells v. Smith, 54 Ga. Webster v. Hildreth, 33 Vt. 457 ; Cheu-
262. As to delegation of his au- vete f. Mason, 4 Greene (Iowa), 231;
thority by the husband, see 59 Tex. Betts v. Betts, 18 Ala. 787 ; Common-
240. wealth v. Fletcher, 6 Bush, 171.
2 Patten v. Patten, 75 111. 446. s Mclntyre v. Knowlton, 6 Allen,
3 Eystra v. Capelle, 61 Mo. 578. 565 ; Lewis y. Johns, 24 Cal. 98 ; Allen
See further, Aldridge v. Muirhead, v. Hightower, 21 Ark. 316.
101 U.S. 397; Paine v.Farr, 118 Mass. 6 whjte v. Hildreth. 32 Vt. 265;
74 ; 58 N. H. 185 ; 62 Iowa, 395. The Goss v. Cahill, 42 Barb. 310 ; Wilkinson
husband's agency is considered at r. Wilkinson, 1 Head, 305; Robinson z;.
length in Schouler, Hus. & Wife, Hoffman, 15 B. Monr. 80.
§§ 277-280. A husband's threat to
16 225
§ 155 THE DOMESTIC RELATIONS. [PART II.
version in any such sense as to render them attachable for his
debts.i
With the assent of the husband and father, the labor of the
wife and children may be bestowed upon the separate property
of the wife, and thus enure to their benefit. There is no
known rule of law which requires the husband and father to
compel his wife and children to work in the service of his cred-
itors.2 And it is held that the husband may stipulate, though
insolvent, that the product of his own labor shall be appropri-
ated to his wife's separate use ; ^ and if his own earnings are
exempt from execution, all the more readily may he invest
them for his wife's benefit.* If permitted to be maintained
upon his wife's property, he does not necessarily acquire a title
to the property or its products merely by bestowing his volun-
tary labor upon it.^ And a similar principle may be applied to
a wife supported from her husband's property.^
But it is held that the husband's occupation and cultivation
of his wife's lands with her assent may be considered as be-
stowed for the common benefit of the family, or so as to give
him the right to the products of his own toil like that of any
tenant;''' and that when his own skill and service were the
chief source of emolument, the wife ought not to claim all as
her own against him.^ Moreover, if by contract express or
implied the wife is indebted to her husband for his services as
managing agent, it is held that she is subject to garnishment at
the instance of his creditors.^
§ 155. Husband's Dealings with Wife's Property; Gift, Fraud,
Use of Income, &c. — Where the question arises, then, whether
j the husband is enjoying the wife's property by way of gift from
1 Spooner v. Reynolds, 50 Vt. 437. « Burcher v. Ream, 68 Penn. St. 421.
2 Johnson v. Vail, 1 McCart. 423. See Dean v. Bailey, 50 111. 481, as to
3 Hodges i\ Cobb, 8 Rich. 50. But the liability of a farm and stock, where
see Penn v. Whiteheads, 12 Gratt. 74. the husband's control is not of a char-
* Robb V. Brewer, 60 Iowa, 539. acter inconsistent with the common in-
5 Rush V. Vougnt, 55 Penn. St. 437 ; terests of himself and wife.
Boss V. Gomber, 23 Wis. 284; Merrick 7 Elijah v. Taylor, 37 111. 247.
V. Plumley, 99 Mass. 566; Gage v. » Glidden v. Taylor, 16 Ohio St.
Dauchy, 34 N. Y. 293 ; Hazelbaker v. 509.
Goodfellow, 64 111. 238 ; Feller v. Al- » Keller v. Mayer, 55 Ga. 406. As
den, 23 Wis. 301. to leasing a farm, see 55 Iowa, 650.
226
CHAP. XI.] DOMINION : WIFE's STATUTORY PROPERTY. § 165
her, or as her managing attorney, it must be determined by evi-
dence. In either case the advantage seems to be with husband
and wife in all controversies with the creditor. The general
rule still prevails, however, that money transactions between
husband and wife should be free from fraud, and not prejudi-
cial to pre-existing creditors of the husband. The presump-
tions are not equally balanced in the different States. But
presumptions of a gift from the wife are not to be strongly
favored where the husband is held out to others as her agent.^
So gifts of income would be more readily presumed than gifts
of capital. Her title is generally open to inspection, and may
be challenged for fraud.^ But it is fair to say that whenever
she gives her property to him, without agreement for any re-
payment, but for investment in his business, and to afford him
credit with the world, and he so invests it with her knowledge
and acquiescence, or takes title to real estate in his own name,
with her acquiescence, for a similar purpose, his lona fide credi-
tors, who had relied upon this capital, ought not, especially
when his time and energies were of essential value to it, and
changes of material or investment are such as to render identi-
fication of the property as hers impossible, to suffer afterwards,
because of her attempt to recall the gift when she finds him
embarrassed ; not even a special partner would have a right to
do so.^ Furthermore, an investment, by the husband, of the
wife's separate means and property, whether in purchasing real
estate or personal property for her separate use, is valid, if the
rights of creditors be not thereby impaired.* But where he
1 See Wales v. Newbould, 9 Mich. Wortman v. Price, 47 111. 22 ; Mazouck
45; Miller v. Edwards, 7 Bush, .394; v. Northern Iowa R. R. Co., 31 Iowa,
Patten v. Patten, 75 111. 446 ; Aldridge 559 ; Lichtenbers:er v. Graham, 50 Ind.
V. Muirhead, 101 U. S. .397. A woman 288; Brooks ;-. Shelton, 54 Miss. .353;
may permit her husband to buy, sell, Mathews v. Sheldon, 53 Ala. 1.36 ; Bes-
and invest for her, without her prop- son v. Eveland, 26 N. J. Eq. 468 ; 105
erty becoming liable for his debts. Penn. St. 522. As to the wife's gratui-
Troxell v. Stockberger, 105 Perm. St. tons undertaking to subject her prop-
405. erfy to her husband's debts, the Penn-
2 See Schouler, Hus. & Wife, § 281 ; sylvania rule is that equity will not
Albin V. Lord, 39 N. H. 196 ; Hinney v. enforce it, but leave the parties to their
Phillips, 50 Penn. St. .382; Fox I'. Jones, legal remedies. White's Appeal, 36
1 W. Va. 502 ; Logan v. Hall, 19 Iowa, Penn. St. 134.
491 ; Bryant v. Bryant, 3 Bush, 155. * .Jackson v. Jackson, 91 U. S. Supr.
3 Kuhn j;. Stansfield, 28 Md. 210; 122.
227
§ 155 THE DOMESTIC RELATIONS. [PART II.
purchases real estate or other property, and procures the title
in his wife's name or in trust for her, when largely indebted,
the validity of the transfer and its good faith may well be
called in question, especially if the means were not clearly fur-
nished from her separate estate.^ And wherever he buys with
his own borrowed money, the wife's lien on the purchase is not
easily maintained on the theory of his future intentions on her
behalf.2
While the wife may avoid a fraud upon her as against all
who participated therein, it is held that a valuable creditor's
rights cannot be prejudiced by any duress, menace, or other
misbehavior of the husband, which procured them the wife's
security, if it was without such creditor's instigation, knowl-
edge, or consent.^ It is otherwise if the latter's instigation,
knowledge, or consent appear.^ But when the husband makes
a void transfer as his wife's trustee, it is held that she can fol-
low the investment into other hands.^ Or she may have him
removed from his trusteeship for suitable cause.^
A husband has no right to agree secretly with the purchaser
of his wife's separate property for a portion of the real consid-
eration, understating the nominal consideration to the wife ;
1 See Postnuptial Settlements, c. - 66 Ala. 217 ; Lochinan v. Brobst,
14 ; Snow v. Paine, 114 Mass. 520. See, 102 Penn. St. 481.
further, Schouler, Hus & Wife, § 282. « Cliilds v. McChesney, 20 Iowa,
As to the wife's rights against a hus- 431 ; Eilgerton v. Jones, 10 Minn. 427 ;
band's creditors, where she borrowed Nelson r. Holly, 50 Ala. 3 ; Singer
money to pay for land, took a convey- Man. Co. v. Rook, 84 Penn. St. 442 ;
ance to herself, and then joined her Marston v. Brittenham, 76 111. 511 ;
husband in a mortgage to secure tlie Conn. Life Ins. Co. v. McCormick,
borrowed money, see Pier y. Siegel, 107 45 Cal. 480; Hull v. Sullivan, 63 Ga.
Penn. St. 502. Lands paid for out 126. See defence of undue influence
of tlie wife's separate property cannot set up by wife, in 52 Wis. 337. A hus-
be reached by the husband's creditors, band procuring his wife's signature
62 Tex. 299 ; 63 Iowa, 620. As to dis- to a mortgage is estopped to set up
training tiie wife's goods for rent due her incapacity. Hill v. Hill, 53 Vt.
by her husband, see 62 Md. 458. See, 578.
further, 14 Lea, 209. * I^ine r. Blizzard, 70 Ind. 23 ; Has-
Dedication of a street by a married kit v. Elliott, 58 Ind. 40.3.
woman may be presumed appurtenant ^ George ;•. Ransom, 14 Cal. 658 ;
to her deed. 101 Ind. 200. A iins- Bates v. Brockport Bank, 89 N. Y.
band, without authority, cannot sub- 286.
niit to arbitration on the boundary of ^ Rainey v. Rainey, 35 Ala. 282. So
the wife's land. Benedict v. Pearce, 53 with any other trustee of her separate
Conn. 496. property. Johnson v. Snow, 5 R. I. 72.
228
CHAP. XI.] DOMLNION : WIFE's STATUTORY PEOPERTY. § 155
nor to make other secret arrangements hostile to her interests
with those he deals with on her behalf ; for this is a breach of
faith as agent or trustee.^ Fraud, coercion, abuse of marital
confidence can be alleged by the wife against an unworthy
husband in support of her title, whether she transferred abso-
lutely, or as security for his debts.^ A negotiable instrument ex-
• ecuted by or taken in the name of a trustee of a married woman
will be regarded in equity as manifesting the trust for her ben-
efit.^ Even promissory notes taken in the husband's name are
open to explanation ; and evidence aliunde may show that they
belonged to the wife's separate property.* Subject, perhaps, to
equities of bona fide third parties for consideration without
notice of the trust, in strong instances, the wife's rights are pro-
tected in equity against her husband's misdealings with her
fund.^ And if a husband holds a legal title to land in trust
for his wife or family, his sale and transfer of the proceeds to
other land, taken without due consent in his own name, will
not enable his general creditors to seize and appropriate it for
his debts.^ The husband as a rule cannot incumber his wife's
separate estate without her consent ; " yet the question recurs
whether the law of agency should take here its usual scope.
Certain States, following the English equity doctrine, avoid
close inquisition into the husband's management of his wife's
property, by limiting the time during which the husband's re-
ceipt of the rents, profits, or income shall charge him.^ It is
held, too, that a wife, by allowing her husband for a long series
1 Beaudry v. Felcli, 47 Cal. 183. wife's agent, see 70 Ga. 385. A hus-
2 Sharpe v. McPike, 62 Mo. 300 ; band duly authorized may render the
Darlington's Appeal, 86 Penn. St. 512. wife liable on a note signed as her
« Lewis y. Harris, 4 Met. (Ky.) .35.3. agent. 61 Wis. 660. The wife's au-
* Buck V. Gilson, 37 Vt. 653; Con- thority given to the husband to sign
rady. Shomo, 44 Penn. St. 193; Baker her name as surety does not include
V. Gregory, 28 Ala. 544; Fowler v. authority to sign her name as principal
Rice, 31 Ind. 258. maker. 61 N. H. 612. As to authority
^ See Moulton v. Haley, 57 N. H. 184. to make her a lessee, see Sanford v.
6 Shippen's Appeal, 80 Penn. St. Pollock, 105 N. Y. 450.
391 ; Porter v. Caspar, 54 Miss. 359 ; '' Harvey i'. Galloway, 48 Mich.
Schouler, Hus. & Wife, § 284 ; McCon- 531.
nell V. Martin, 52 Ind. 434. As to a ^ One year from date of such receipt
sale of goods where the seller did not is the Mississippi limitation. Hill v.
know that the husband was simply the Bugg, 52 Miss. 397.
229
§ 156 THE DOMESTIC RELATIONS. [PART II.
of years to appropriate to his own use, or their joint use, the
income of her separate estate, forfeits her right to compel him
to account, until at all events she revokes such permission, and
then only from the date of revocation.^ Such a rule is very
desirable for preserving domestic peace and ensuring the hus-
band's estate after death against dubious claims ; for otherwise,
as we have intimated, and apart from the wife's delay or her
presumed assent to household expenses or to a gift to her hus-
band, and after deducting his charge for services, the husband,
where regarded as purely an agent, is obligated to account.
Even admitting, however, the income his, the husband may
show and execute an intention of preserving such income as his
wife's separate property ; ^ or, on the other hand, of investing it
rather for the benefit of the whole family.^
On the whole, there is and must be, throughout this transi-
tion period, conflict in the authorities as to the effect of a hus-
band's receiving the proceeds of his wife's share in inherited
property, or of some sale or investment in her sole right:
States which abide by the common law of coverture inclining
to sustain his ancient right of reduction into possession, and
presuming in his favor ; * and States, on the other hand, under
the impress of the new legislative policy, reserving her title,
unless she plainly and voluntarily divests herself of separate
rights.^
§ 156. Married Woman as Trustee. — Appointing a married
woman trustee may be considered objectionable (apart from
equity rules of constructive trust) while the law yet fails to
divest her of all coverture disabilities, so as to make her both
efficient and responsible in the legal sense. Yet it is held in
1 Lyon V. Green Bay R., 42 Wis. Farmers' Bank v. Jenkins, 65 Md. 245;
648; Reeder i;. Flinn, 6 Rich. 216; 113 Penn. St. 209.
Lishey D. Lishey, 2 Tenn. Ch 5. * Reade v. Earle, 12 Gray, 423;
2 Gill V. Woods, 81 III. 64 ; Patten Windsor v. Bell, 61 Ga. 671 ; Nevius
V. Patten, 75 III. 446 ; Bongard v. Core, v. Gonrley, 95 III. 206 ; Jacobs v. Hes-
82 III. 19 ; siipm, § 141. ler, 118 Mass. 157.
3 Bristor )'. Bristor, 93 Md. 281. As ^ Nissley v. Heisey, 78 Penn. St.
to circumstances of accountability un- 418; Penn v. Young, 10 Bush, 626;
der which the wife's preference to the Moyer's Appeal, 77 Penn. St. 482 ;
husband's creditors was sustained, see Archer v. Guill, 67 Ga. 195 ; supra,
143 Mass. 203; 30 Fed. 401. And see § 118.
230
CHAP. XI.] DOMINION : WIFE'S STATUTORY PROPERTY. § 158
some States that a married woman may, under the statutes,
hold an estate in trust, and make contracts accordingly.^
§ 157. Tendency as to Wife's Binding Capacity ; her EstoppeL
There is now little or no limit upon the wife's legal capacity to
bind her statutory estate to the discharge of liabilities created
on account thereof, in Ohio, Wisconsin, Massachusetts, New
York, Indiana, Illinois, and some other States. In Illinois it is
said that capacity to make contracts respecting her separate
property is an implication of law and not of equity, and conse-
quently all contracts made by her within the scope of that
legal capacity are legal contracts, and cognizable in the courts i
of law.2 Some of the latest acts explicitly confer upon mar-
ried women the power to deal with their property and sue
and be sued as though single. And a wife may at least bind
her separate estate for the payment of her debts or for the
discharge of any contract she may make for her own use
and benefit.
As a natural result of the first modern innovations upon the
coverture theory, it may be observed that, while estoppel does
not work against a married woman so readily as against persons
sui juris, it is held in various recent instances, and justly, too,
that where married women make agreements by fraudulent
means, with reference to their separate property, and thus ob-
tain inequitable advantages, a court of chancery will treat them
as estopped from setting up and relying on their coverture to
retain the advantage.^
§ 158. Proceedings for Charging Wife's Separate Estate; Su-
ing and being Sued as a Single Woman. — The married women's
acts in some States make, as might be anticipated, a radical
change in the character of the practice for reaching the wife's
separate property. According to the English practice, and that
1 Springer v. Berry, 47 Me. 330,
See Pemberton v. McGill, 1 Dr. & Sm
266.
2 Williams v. Hugunin, 69 111. 214
Schouler, Hus. & Wife, § 288.
3 Coolidge V. Smith, 129 Mass. 554
V. Hambleton, 54 Md. 222. See, fur-
ther, Schouler, Hus. & Wife, § 288;
Hendershott v. Henry, 63 Iowa, 744;
Gray v. Crockett, 35 Kan. 66. Some
codes now declare that a married wo-
man may be bound by an estoppel like
Patterson i;. Lawrence, 90 III. 174; 5 any other person. 108 Ind. 301. But
Lea, 405; 17 Fed. R. 760, Flanagin cf.'eO N. H. 5G8.
231
§ 158 THE DOMESTIC BELATIONS. [PART II.
prevalent now or formerly in most States, there was no personal
judgment against a married woman. But a chancery decree
was directed against the separate property of the wife, declaring
the separate estate vested in the wife at the date of the decree,
which it was within her power to dispose of, chargeable with
the payment of the debt.^ The debt was not a lien upon the
wife's separate estate until made so by decree of the court of
equity, and the lien was by virtue of such decree.^ Under
such proceedings there was only a sort of equitable execution,
the decree reaching only property which the wife had power to
bind, and no personal judgment being awarded against her, —
nothing from which direct personal liability on her part could
be predicated.^ In some of our States we find promises of the
wife enforceable in equity against her separate estate.^
But under most recent married women's legislation the same
judgment is frequently required, with the same process for its
enforcement, as would be awarded if the woman were sole ;
saving, perhaps, the usual exemptions, and treating the wife's
property in such case substantially as the husband's property
might be treated were the judgment rendered against him and
the liability his. And where such is the practice no equitable
circumstances can usually be alleged, calling for the interven-
tion of a court of equity.^ Legal attachment on mesne process,
or by way of legal execution against a married woman, may be
made under such statutes ; ^ or, in appropriate instances, the
foreign attachment or trustee process applied.' Even upon her
covenants the wife may, in some States, be sued like a single
woman ; ^ the later statute often requiring her to sue and be
sued thus on her contracts. And her warrant of attorney to
1 Johnson v. Gallagher, 3 De G. F. * Stevens v. Reed, 112 Mass. 515;
& J. 520 ; Collctt V. Dickenson, L. R. Patrick v. Littell, 36 Ohio St. 7it ; Cook-
11 Ch. D. 687; Patrick v. Littell, 36 son v. Toole, 59 111. 515; Andrews?;.
Ohio St. 79 ; Armstrong v. Ross, 20 N. Monilaws, 15 N. Y. Supr. 65.
J. Eq. 109 ; 74 Ala. 518. 6 See language of Hoar, J., in Wil-
2 lb. ; Schouler, Hus. & Wife, § lard v. Eastham, 15 Gray, 328 ; Gall v.
289. Fryberger, 75 Ind. 98.
3 But see English form of order of '' Powers v. Totten, 42 N. J. L.
judgment, in Durrant v. Ricketts, 8 442.
Q. B. D. 177. 8 Worthington v. Cooke, 52 Mo.
* Howe V. Chesley, 56 Vt. 727. 297.
232
CHAP. XI.] DOMINION: WIFE'S STATUTOKY PROPERTY. § 159
confess judgment upon a contract on which she is liable under
statute has been held binding upon her.^
On the whole, policy still disinclines to permit a personal
judgment to be rendered against a married woman, even on
what purports to be her personal obligation. The subjection
of the wife's property, furthermore, under these acts, extends to
all her statutory separate estate, or, as might generally turn
out, by the changing of equitable into statutory estates by
operation of legislation, all her separate property. And by
this means the old distinction between the real and personal
separate estate becomes well-nigh obliterated.^ But in the
present state of the law each code must afford its own rule.
§ 158 a. Promise of a Third Person to pay a Married
Woman's Debt. — The moral obligation of a married woman
to pay a debt which cannot be enforced against her is a good
consideration for the promise under seal of a third person to
pay it.^
§ 159. English Married Women's Acts; Wife's Disposition. —
In England the married women's property act of 1870, with its
later amendments, indicated some change of parliamentary pol-
icy in the same practical direction. But the English courts
still inclined, as would the American under statutes of dubious
import, to render the separate property of the wife liable by
subjecting her to the ordinary process of law and equity.* The
wife cannot be sued alone in respect of her separate estate in
the common-law courts, under the act of 1870, for the price of
goods sold her during coverture, but, as formerly, the husband
must be joined.^
The later English act of 1882 enlarges the wife's powers and
liabilities with reference to her separate property.^ But the
1 Heywood v. Shreve, 44 N. J. L. * Ex parte Holland, L. R. 9 Ch.
94. A pp. .S07.
As to actions of replevin to recover 5 Hancocks i\ Lablache, 26 W. R.
the wife's property, see CO Md. 426; 75 402 ; Davies v. Jenkins, L. R. 6 Cli. D.
Ind. 98. 728.
2 For various points of modern stat- ^ Act 45 & 46 Vict. c. 75. This stat-
utory practice, see Schouler, Hus. & ute provides that the wife's contract
Wife, § 289. shall bind whatever separate property
3 Leonard i;. Duffin, 94 Penn. St. she may afterwards acquire as well as
218. that at the date of the contract.
233
§ 160 THE DOMESTIC RELATIONS. [PART II.
judicial disposition is still somewhat conservative ; and a mar-
ried woman is held incapable of rendering herself liable in
respect of her separate property on any contract unless she has
some separate property at the time the contract is made ; the
party seeking to hold her liable must show this fact.^
CHAPTER XII.
THE wife's pin-money, SEPAEATE EARNINGS, AND POWER TO
TRADE.
§ IGO. The Wife's Pin-Money. — The wife's pin-money con-
stitutes a feature of English marriage settlements in modern
times. Pin-money may be defined as a certain provision for
the wife's dress and pocket, to which there is annexed the duty
of expending it in her " personal apparel, decoration, or orna-
ment." 2 It differs from the wife's separate estate in being a
gift subject to conditions, and not at her absolute disposal. It
differs from her paraphernalia in being subject to her control
during marriage, and not awaiting the husband's death.^ The
exact period when pin-money was first introduced into England
is not known. Lord Brougham inclines to ascribe it to the
feudal times.* But there is equally good authority for fixing the
date at the Restoration ; and the lawyers resort to Addison's
"Spectator" in proof of the latter supposition.^ The popular
name of this provision scarcely suggests its real significance ;
for, so far from being a petty allowance, it is often of the most
liberal amount imaginable.^
The subject of the wife's pin-money seems to have received
1 Talliser v. Gurney, 19 Q. B. D. 5 Spectator, 205. See Peachey, Mar.
510; Deakin v. Lakin, 30 Ch. D. 169. Settl. 300 ; Sugd. Law Prop. 165.
2 Per Lord Lang^dale, Jodrell v. 6 In one reported English case, by
Jodrell, 9 Beav. 45; Howard v. Digby, no means recent, £13,000 a year was
2 CI. & Fin. 654. secured to the wife as her pin-money.
3 Macq. Has. & Wife, 318 ; Peachey, See 2 Russ. I, and n. to Macq. Hue. &
Mar. Settl. 298 ; c. 16, post. Wife, 318.
* 2 CI. & Fin. 676.
234
CHAP. XII.] wife's separate EARNINGS. § 161
little attention in this country.^ And in England few cases of
the sort have ever arisen. It is found more convenient in mar-
riage contracts to settle a certain allowance upon the wife by
way of separate estate, which allowance is subject to the usual
incidents of separate property. Decisions as to pin-money and
separate estate are frequently confounded.^
§ 161. Wife's Housekeeping Allowance. — The wife was for-
merly supposed also to gain a title to savings out of her house-
keeping allowance.^ So where the husband allowed the wife to
make profit of butter, eggs, poultry, and other farm produce,
which allowance he called her pin-money, it was held that she
acquired a separate ownership therein.^ But these cases rest
upon questionable authority.^ And more recently it has been
decided that, where the wife of a farmer, with his knowledge
and sanction, deposited the produce of the surplus butter, eggs,
and poultry with a firm in her own name, and he called it " her
money," and on his death-bed gave his executor directions to
remove the money, and do the best he could with it for his
wife, such evidence was insufficient to establish a gift between
them, and that the husband had made neither the firm nor
himself trustee for his wife.^ In all cases of this sort the hus-
band's permission, he not having deserted her, constitutes an
important element of the wife's title. And the mere fact that
a wife is in the use and enjoyment of clothing, or other per-
sonal property, is held insufficient to establish her right to a
separate estate therein."
1 But see Miller v. Williamson, 5 In other ways, too, the wife's claim
Md. 219. may be barred. Schouler, Hus. &
- See Lord Brougham, in Howard Wife, § 292.
V. Digby, 2 CI. & Fin. 670, coninicnting 3 Paul Neal's Case, Prec. in Ch. 44,
upon 2 Rope.-, Hus. & Wife, 133. In this 297. But see Tyrrell's Case, Freem.
leading case, which went to tlie House 304.
of Lords in 1834, tiie whole subject re- * Slanning v. Style, 3 P. Wms.
ceives ample discussion. Its main de- 337.
cision was to the efEect that the personal ^ See Macq. Hus. & Wife, 320.
representatives of the wife could not ® Mews u. Mews, 15 Beav. 529. See
recover arrears. The correctness of McLean v. Longlands, 5 Ves. 78, cited
its principle has been questioned by herein with approval. And see Rider
some writers. In general the usual v. Hulse, S3 Barb. 264, for a similar
equity rule against claiming more than American decision,
one year's arrears appears to apply to "^ State v. Pitts, 12 S. C. 180; supra,
separate estate and pin-money alike. § 82.
235
§ 162 THE DOMESTIC RELATIONS. [PART II.
§ 162. "Wife's Earnings belong to the Husband ; Legislative
Changes, &c. — Indeed, the well-settled principle, botli of law
and equity, is that, in absence of a distinct gift from the hus-
band, all the wife's earnings belong to him and not to herself.^
But by recent statutes, enacted in many of the United States,
married women are allowed the benefits of their own labor and
services when performed, or even contracted to be performed,
on their sole and separate account, free from all control or in-
terference of a husband.^ The English married women's act of
1870, moreover, recognizes the wife's right to her separate earn-
ings ; ^ while that of 1882 extends that right still more liber-
ally.* These statutes vary somewhat in their terms. The
amount the wife may thus acquire is in certain States limited
to a specific sum, and statutes sometimes discriminate so as
to protect simply her earnings derived from labor for another
than her husband.^
The presumptions here concerning the wife's title to her
earnings seem to be much the same as in other separate prop-
erty purporting to belong to her.^ Questions of identity, too,
in tracing an investment of earnings, are applicable, as in other
cases of separate property. There is, however, apparently less
favor shown by our courts to the legislative grant of separate
earnings, than to that of acquisitions to a wife's separate use
from other sources ; and still less, as we shall soon see, to
statutes extending the wife's right of acquiring earnings to a
1 For the old common-law rule, see ^ Supra, § 111; Lovell v. Newton,
supra, § 81 ; Jones v. Reid, 12 W. Va. L R. 4 C. P. D. 7.
350; Douglas v. Gausman, 68 111. 170; * Act 45 & 40 Vict. c. 75.
Kelly V. Drew, 12 Allen, 107 ; Glaze v. » Snow v. Cable, 19 Hun, 280.
Blake, 50 Ala. 379. A married woman who washes
- Sec latest statutes of New York, clothes for money, living with her hus-
Massacliusetts, Rhode Island, Mary- band, may now recover for the loss of
land, Kansas, and California. And see her time in an action for personal inju-
Cooper V. Alger, 51 N. H. 172 ; Fowle ries. Fleming v. Shenandoah, 67 Iowa,
r. Tidd, 15 Gray, 94; Tunks v. Grover, 505. Suits for the wife's wages may,
57 Me. 586 ; Meriwether v. Smith, 44 under many late codes, be maintained
Ga. 541; Berry v. Teel, 12 R. 1.267; by the wife alone. 74 Ind. 82; 50
Attebury v. Attebury, 8 Oreg. 224; Mich. 77 ; 101 Penn. St. 181.
Larimer v. Kelley, 10 Kan. 298; Boots ^ Kaybold v. Raybold, 20 Penn. St.
V. Griffith, 89 Ind. 246; Jassoy v. 308; Elliott v. Bently, 17 Wis. 591;
Delius, Go 111. 469 ; Whitney ?'. Beck- Laing v. Cunningham, 17 Iowa, 510.
with, 31 Conn. 596 ; 52 Conn. 327.
236
CHAP. XII.] wife's separate EARNINGS. § 162
permission to embark in business on her own account. The
presumption is said to be, that a wife's services, rendered even
to her own mother on a basis of compensation, were given on
the husband's behalf.^ The wife must show that she rendered
the service on her own account, and not conjointly with the
husband or for his benefit.^ And where the proceeds of her
earnings have been so mixed up with her husband's property as
not to be easily distinguishable, the disposition is to regard the
whole as belonging to the husband.^ The idea, moreover, is
not favored, of permitting a wife to forsake the matrimonial
domicile, or neglect her household duties, without her hus-
band's consent, for the purpose of acquiring earnings for her
separate use, especially if her husband be still legally bound to
support her by his own labor* It may be added that, in gen-
eral, statutes which authorize married women to hold property
acquired by gift, grant, or purchase, from any person other
than the husband, do not carry the wife's earnings by
implication.^
Independently, therefore, of statutes which plainly secure
to married women their separate earnings under the circum-
stances, it is held that an agreement between the wife, with the
knowledge and consent of her husband, and a third person, for
nursing and attention, the stipulation being that she shall be
paid what her services are reasonably worth, gives to the wife
no title as against her husband,^ nor right to maintain her sepa-
rate action J A husband's investment of his wife's wages is still
held subject to his creditors in a few States where the common
1 Morgan v. "BoUes, .36 Conn. 175. 11 Mich. 470; Baxter v. Prickett, 27
2 Neale v. Hermanns, 65 Md. 474 ; Ind. 490 ; Bear v. Hays, 36 111. 280.
Triplett v. Graham, 58 Iowa, 135. « Woodbeck v. Havens, 42 Barb. 66.
^ Quidort v. Pergaux, 3 C. E. Green, And this, even though the husband
472 ; McPluskey v. Provident Institu- makes of his house a sort of hospital,
tion, 103 Mass. 300; Kelly v. Drew, 12 and his wife assists him. Reynolds v.
Allen, 107. Robinson, 64 N. Y. 589. And see 1)1-
* Douglas V. Gausman, 68 111. 170; liott v. Bently, 17 Wis. 591 ; Duncan v.
Mitchell V. Seitz, 94 U. S. Supr. 580. Roselle, 15 Iowa, 501 ; McKavlin i'.
But see Duncan v. Cashin, L. R. 10 C. Bresslin, 8 Gray, 177.
P. 554. 7 See Beau v. Kiah, 6 Thomp. &
5 Rider V. Hulse, 33 Barb. 264; C. (N. Y.) 484. And see Skillman v.
Hoyt V. White, 46 N. H. 45; Merrill v. Skillman, 15 N. ,1. Ch. 478; Schouler,
Smith, 37 Me. 394; Grover v. Alcott, Hus. & Wife, § 205.
237
§ 163 THE DOMESTIC EELATIONS. [PART II.
law still prevails on that point.^ On general principles of
equity, however, the husband may, in this country, as in England,
create in his wife a separate estate in the proceeds of her own
toil ; the vaHdity of such a gift, as against creditors, being subject
to the same rules which apply to other voluntary conveyances.^
Such a gift on his part, once made, the husband cannot annul
by a subsequent investment of the proceeds in his own name.^
§ 163. Wife's Power to Trade ; Earlier English Rules. — The
wife's power to carry on a separate trade is another topic,
known long ago to the law of England ; and in this respect
our American legislation of the present day seems to have been
somewhat anticipated. The wife's lawful power to carry on a
trade on her own account, independently of her husband, like
most of her other separate privileges, is founded at the common
law upon contracts made with her in derogation of the hus-
band's marital rights. It appears that a wife, desiring to go
into business on her own account, makes an agreement with
her husband. When the agreement is made before marriage, it
will bind the husband and his creditors ; when made during
the coverture, it binds the husband only, and is void against his
creditors.* And the husband will be liable for the debts, if it
appeared that he participated with the wife in the benefits.^
Separate trading was also permitted the wife by the " custom
of London ; " and herein she was regarded as liable to arrest
and imprisonment for debt without her husband, and, more-
1 81 Ala. 489, 549; Leinbach v. ^ Rivers v. Carleton, 50 Ala. 40;
Templin, 105 Penn St. 522. But as to White v. Oeland, 12 Rich. 308 ; Mason
garnishing lier wages where mingled v. Dunbar, 43 Mich. 407. Wife's earn-
with separate property, see 74 Ala. 446. ings are sometimes bestowed on her by
2 Pinkston v. McLemore, 31 Ala. statute, where the husband deserts.
308; Neufville v. Thompson, 3 Edw. Schouler, Hus. & Wife, § 297. See
Ch. 92 ; Barron v. Barron, 24 Vt. 375 ; further, as to earnings, lb. § 298.
34 N.J. Eq. 124; Richardson v. Mer- * Marq. Hus. & Wife, 321 ; 2 Bright,
rill, 32 Vt. 27; Jones v. Reid, 12 W. Hus. & Wife, 292; Lavie v. Phillips, 3
Va. 350; Glaze v. Blake, 56 Ala. 379 ; Burr. 1783 ; 2 Roper, Hus. & Wife, 165,
Schouler, Hus. & Wife, § 296. See 175, and cases cited. See Antenuptial
Postnuptial Settlements, c. 14, where and Postnuptial Settlements, cs. 13, 14.
the rule is more fully stated. A wife ^ Jarman v. Wooloton, 3 T. R. 618;
can hire out, with her husband's con- 2 Bright, Hus. & Wife, 207 ; Schouler,
sent, and can sue for, recover, and keep Hus. & Wife, § 299 ; Barlow v. Bishop,
her earnings. Benson v. Morgan, 50 1 East, 4:12 ; Petty v. Anderson, 2 Car.
Mich. 77. & P. 38; Macq. Hus. & Wife, 322.
238
CHAP. XII.] wife's separate TRADE. § 164
over, might be declared a bankrupt.^ And if the husband had
any concern in the business, the wife was not to be treated as a
feme sole in respect of it.^
Notwithstanding these provisions of the law, it does not ap-
pear that separate trading in England, prior to the innovations
introduced with the married women's act of 1870, was ever very
common.^ The difficulties in the way of establishing credit,
and of negotiating securities, on the wife's sole behalf, were
probably found insurmountable, even though married women
might be found anxious to assume the responsibilities of trade,
with its incidental imprisonment for debt. The judicial evi-
dence of this separate trading is supplied chiefly by the misfor-
tunes such trade entailed upon the women who embarked in it.
Even where the wife lived apart from her husband (a very im-
portant consideration "*), and, having her separate estate, carried
on a trade, it was doubted, in an important case of which we have
spoken elsewhere, whether the tradesman furnishing supplies had
any demands upon that estate which equity could recognize.^
§ 164. Wife's Povrer to Trade ; American Equity Rule. — This
doctrine of the wife's power to trade comes up anew in the
United States of late years, with our recent policy in favor of
the independence of married women. And the rule seems, apart
from late legislation, to be well established in the United States,
that the husband, in pursuance of a marriage contract, ante-
nuptial or postnuptial, may confer upon his wife the right to|
trade for her exclusive benefit.^ Nor have the American cases
uniformly insisted upon formal contracts for this purpose be- 1
tween husband and wife ; seemingly regarding the question as
one of mutual and bona fide intention merely.'^ The husband's
1 Beard v. Webb, 2 B. & P. 97. See tices, in .Johnson v. Gallagher, 3 De G.
2 Roper, Hus. & Wife, 124. F. & ,J. 41)-1.
2 2 Briglit, Hus. & Wife, 77, 78 ; « Richardson v. Merrill, 32 Vt. 27 ;
La vie r. Pliillips, 3 Burr. 1776; Schou- Tillman v. Shackleton, 15 Mich. 447;
ler, Hus. & Wife, § 300. Wieman v. Anderson, 42 Penn. St. 311 ;
* But see the recent cases of Tal- Duress v. Homeffer, 15 Wis. 195 ;
hot V. Marshfleld, L. R. 3 Ch. 622 ; Re James v. Taylor, 43 Barb. 530 ; Wilt-
Peacock's Trusts, L. R. 10 Ch. D. 400 ; haus i'. Ludicus, 5 Rich. 320 ; Uhrig v.
Ashworth t;. Outram, L. R. 5 Ch. 923; Horstman, 8 Bush, 172; Cowan v.
Schouler, Hus. & Wife, § 301. Mann, 3 Lea, 22^
* See Separation, c. 17, fios^ ' See per Redfield, C. J., in Bichard-
6 Of. Bruce & Turner, Lord Jus- son i'. Merrill, 32 Vt. 27 ; Partridge v.
239
§ 165 THE DOMESTIC RELATIONS. [PART II.
assent is in general necessary, provided they live together ; and
if they do not, different considerations apply.^ And apart from
statute, it would appear to be the general rule, that unless the
husband's consent that the wife carry on business in her own
name is based upon a sufficient consideration, he may withdraw
it at any time and assert his common-law rights.^
On the other hand, in North Carolina the whole doctrine of
separate trading is expressly repudiated.^ Indeed, our earlier
American cases seem to have regarded with very little favor
the doctrine that the wife, while living with her husband, could
carry on a business of her own without rendering her husband
liable and subjecting her stock in trade to his debts.* And the
same may be said, at this day, of States whose legislatures have
not freely conceded rights to married women.^
I§ 165. Conclusion from English and American Decisions. —
I The conclusion to be drawn from this class of cases is that,
° modern policy having once conferred upon the wife large powers
both as to the acquisition and enjoyment of separate property,
as well as the right to invest and reinvest the same, including
their rights under marriage settlements, married women natu-
rally sought business opportunities with their capital ; and thus
the modern courts, confronted with the practical results, and
aided by precedents from old local customs or old legislation,
were drawn into the practical concession of trading privileges,
and hence of trading liabilities, while professing to deny to the
wife on general principles the right to engage in mercantile
Stocker,36 Vt. inR;Penny. Whiteliead, 365. Some old statutes recognizing
17 Gratt. 508: Tillman r. Shackleton, the wife as a /eme so/e trader appear
15 Midi. 447 ; Wiomjin v. Anderson, 42 to have existed in Pennsylvania and
Penn. St. 311 ; Todd r. Lee, 16 Wis. South Carolina. Schouler, Has. &
480; Mayhew v. Baker, 15 Ind. 254; Wife, § 305. Equity jurisdiction to
Schouler, Hus. & Wife, passim, §§ 303, grant the privilege not favored. 75
304. Ala. 293.
1 Cropsey v. McKinney, 30 Barb. ^ McKinnon v. McDonald, 4 Jones
47; Green v. Pallas, 1 Beasl. 267. Eq. 1. As to Alabama, see Newbrick
2 Conklin v. Doul, 67 111. 355 ; Crop- v. Dugan, 61 Ala. 251.
sey r. McKinney, 30 Barb. 47 ; Todd v. * Mackinley r. McGregor, 3 Whart.
Lee, 16 Wis. 480 ; Richardson v. Mer- 378, and cases cited,
rill, 32 Vt. 27 ; Partridge v. Stocker, 36 ^ Godfrey v. Brooks, 5 Harring. 396 ;
Vt. 108 ; Penn v. Whitehead, 17 Gratt. Woodcock v. Reed, 6 Allen, 207, per
603 ; King v. Thompson, 87 Penn. St. curiam.
240
CHAP. XII.] wife's separate TRADE. § 166
pursuits without more explicit statute provisions to that effect,
and while requiring the assent of the husband to appear.
When it is clearly for the wife's advantage to reap the bene-
fits of her business, the disposition of the law to yield them
must be strong ; but where, as must often be the case, she
speculates imprudently and becomes deeply involved, the court
is perplexed, though doubtless anxious to relieve her. In some
leading cases, upon this point, we find the married woman who
has subjected her property to the demands of her husband's
creditors permitted to stand in equity, where the business fails,
as a sort of preferred creditor, for her manifest benefit.^ The
creditor's claim for supplies is of at least doubtful equity ;2 such
indebtedness must usually be pronounced void at law ; ^ while
even equity will decline to enter a decree establishing a charge
on the wife's estate, unless the husband, or some other trustee
for the wife, is properly before the court/* And if equity, un-
aided by legislation, preserves the separate capital thus invested
in trade, that the wife may enjoy its benefits, it is otherwise
with profits which may have accrued beyond the interest of
such capital.^
§ 166. Enlargement of Wife's Povrer to Trade under Recent
Statutes. — But the doctrine of a wife's separate trading is at
this day to be considered under the combined influence of
modern equity decisions as to the wife's jm difiponendi, and the
recent married women's acts. The English act of 1870 declares
that wages and earnings of a married woman shall be her sepa-
rate property ; ^ under construction of which act, the English
chancery has lately sustained the right of a butcher's wife to
carry on her husband's business upon her separate resources,
he being incapacitated through delirium tremens, and, while at
home, offering no obstruction to her course.'^ Again, both under
1 Pcim V. Wliitehead,17 Gratt. 503; * Ibid.
Riclianlson v Merrill, 32 Vt. '2.1 ; Cowan 5 Jassoy v. Delias, 65 111. 469 ; Jen-
V. Mann, o Lea, 229. See Bellows v. kins v. Flinn, 37 Iiid. 349, and cases
Rosentiial, 31 Ind. 110. cited; Dumas v. Neal, 51 Ga. 563;
2 Johnson V. Gallagher, 3 De G. F. Clinton Man. Co. v. Hunniiell, 25 N. J.
& J. 494 ; Copeland v. Cunningham. 31 Eq. 45 ; Schouler, Hus. & Wife, § 307.
Ind. 116. Put see Todd w. Lee, 16 Wis. ^ Act 33 & 34 Vict. c. 93; supra,
480; Partridge v. Stocker, 36 Vt. 108. § 203.
3 Conklin v. Doul, 67 111. 355. ^ Lovell v. Newton, L. R. 4 C. P.
16 241
I 166 THE DOMESTIC RELATIONS. [PART II.
the act of 1870 and independently of it, chancery protected the
widow's interests as against the husband's administrator, after
his death, in a valuable fruit-preserving business, which she
had commenced while single ; then continued, after her mar-
riage in 1874, to carry on in her maiden name, her husband
consenting.^ The later act of 1882 explicitly secures to the
wife as her separate property, her wages, earnings, money and
property gained or acquired by her in any employment, trade,
or occupation, in which she is engaged, or which she carries on
separately from her husband, or by the exercise of any literary,
artistic, or scientific skill.^
The recent married women's acts in many of the United
States have enlarged and more fully established the wife's
power to trade on her own account; and the profits of her
business are thus secured to her sole and separate use.^ She
is thus enabled to use her separate property ; and she may even
enter, in some States, into a general partnership for trade. In
general, what the wife acquires under these statutes is declared
to be exempt from liability for the husband's debts, and not
subject to his control or interference. But the statutes of
certain States require the married woman to first register her
intention, thus affording a very reasonable safeguard against
fraud and imposition upon the public and herself, besides re-
quiring that the act be a deliberate one ; * and the husband will
D. 7. If liis assent was not clearly Stimson's Am. Stat. Law, art. 652,
shown to his wife's trade, there would Such local statutes speak of " free
appear to have been a pretty fair infer- trader," " sole trader," "free dealer,"
ence, from the facts, that he gave it. "public tnercliant," &c. To the sta-
1 Asliworth V. Outram, L. R. 5 Ch. tus of free trader (which often applies
923. As to selling out the good-will, to wives abandoned by their husbnnds),
see Re Peacock's Trusts, L. R. 10 Ch. peculiar rights and liabilities sometimes
D. 490. attach under these codes. See 101
2 Act 45 & 46 Vict. c. 75. And see Penn. St. 371 : 96 Penn. St. 180 ; 78
Gilchrist ex parte, 17 Q. B. D. 521. Mo. 320 ; post, § 219 ; 79 Ky. 497.
3 Such statutes are to be found in A married woman may now in many
New York, Maine, New Hampsiiire, States incur a stockholder's liability
Massachusetts, Connecticut, Kansas, with reference to sliares she may own,
New Jersey, Iowa, California, Wis- or enter into a building association,
consin, Illinois, Arkansas, Mississippi, See 103 Penn. St. 86.
and other States. And see Mitchell f. * Mass. Stats. 1862. c. 198; 137
Sawyer, 21 Iowa, 582; Schouler, Hus. Mass. 134; 1R8 Mass. 83. See Schou-
& Wife, § 309, and appendix. See also ler, Hus. & Wife, § 309.
242
CHAP. XII.] wife's separate TRADE. § 167
be held liable on her contract where the certificate is not duly
filed.^ In Kentucky, special authority to trade must first have
been conferred by the chancellor.^ Such requirements not being
complied with, the creditors of the husband may come upon the
assets of the business. A statute which is designed to secure
to the wife her separate earnings does not make her a feme sole
trader. 3
The wife, under such statutes, is found engaged on her sepa-
rate account, as milliner and dressmaker,* farmer,^ boarding-
house keeper,^ army sutler," operator of a mill,^ saloon-keeper,^
tavern-keeper,^^ or in whatever other business she may choose
to carry on with her own capital. Even though the trade be
unsuitable to her sex, fraud upon the husband's creditors will
not be conclusively presumed. ^^ But it is held that the busi-
ness under such statutes should be pursued as a continuing and
substantial employments^
§ 167. "Wife's Trading Liabilities under American Statutes. —
Under these American statutes permissive of the wife's separate
trade, it is a general rule that the wife's contracts regarding her
separate trade or business are binding on her separate property,
and that the husband is not answerable for her solvency. With
reference thereto she may make contracts, and sue and be sued,
as if sole, except (as such statutes usually run) that where she
is sued the remedy is to be enforced against her separate prop-
erty only, and not against her person. She may make contracts
of sale, and sue for goods sold and delivered to her customers.^^
The power to do business implies, too, the power to purchase
1 Feran v. Rudolphsen, 106 Mass. ^ Nispel v. Laparle, 74 III. 306.
471. 1'' Silveus v. Porter, 74 Penn. St.
2 Uhrig V. Horstman, 8 Bush, 172. 448.
8 101 Penn. St. 181. " Guttman v. Scannell, 7 Cal. 455.
* Jassoy V. Delius, 65 111. 469; Tuttle ^^ Holmes i'. Holmes, 40 Tonn. 117.
e. Hoag, 46 Mo. 38. " Porter r. Gamba, 43 Cal. 105 ; Net-
^ Kouskop i;. Shontz, 51 Wis. 204; tervillei'. Barber, 52 Miss. 168; Trieber
Snow V. Sheldon, 120 Mass. 332; 79 r. Stover, 30 Ark. 727. The contracts
Ky. 497. of married women, made by virtue of
^ Harnden v. Gould, 126 Mass. 411 ; such statute capacity, should not be
Dawes v. Rodier, 125 Mass. 421. viewed with hesitation or suspicion by
'' Swasey v. Antram, 24 Ohio St. thecourts, but should be fully enforced.
87. Netterville v. Barber, 52 Miss. 168;
8 Cooper V. Ham, 49 Ind. 393. Burk v. Piatt, 88 Ind. 28-1
248
§ 168 THE DOMESTIC RELATIONS. [PART II.
goods, fixtures, and stock for it, and execute the needful instru-
ments of purchase ; and hence the wife's contracts for such
purchase on credit, her notes, bills, securities, or simple in-
debtedness therefor, must be deemed obligatory and enforce-
able against her separate property by suit or otherwise.^ And
what she thus purchases, in the exercise of her trading discre-
tion, is to be held and treated as her sole and separate property
as against her husband and his creditors. ^ Where, too, the
married woman keeps a separate bank account, with reference
to such business, the check which she draws against it and the
fund itself are available to her business creditors.^ What she
borrows by way of capital to commence the business, she is
required to refund.*
§ 16S. Wife's Trade; Husband's Participation. — It follows
that under such legislation the husband is not liable on the
wife's contracts and liabilities incurred in the pursuit of her
separate business, unless he participates in it.^ But his par-
ticipation will not unfrequently be found in the modern cases ;
and hence arises legal uncertainty, and often a suspicion of
fraudulent arrangements against one another's creditors. Does
the proof, we must ask, under any such circumstances, show
that the wife carried on no separate trade, but was her husband's
agent? or that she did, and the husband was her agent? or that
they were in partnership together ?
1 Nispel V. Laparle, 74 111. .306 ; Wis. 113 ; Kouskop v. Shontz, 51 Wis.
Kouskop V. Shontz, 51 Wis. 204; 204.
Wlieaton i\ Phillips, 1 Beasl. 221 ; On general principles, equity will
Readine v. Mullen, .SI Cal. 104 ; Schou- enjoin a married woman wlio sells out
ler, llus. & Wife, § 310; Wallace v. a business and its good-will, which she
Rowley, 91 Ind. 58fi; 54 Vt. 384; 18 has carried on for lier separate account,
Fla. 707. from violating her own agreement with
^ Tallman v. Jones, 13 Kans. 4.38; the purchaser in restraint of future
Meyers v. Pahte, 46 Wis. 655 ; Sammis competition or interference ; for in
V. McLaughlin, 35 N. Y. (i47 ; Silveus this respect a married woman should
V. Porter, 74 Penn. St. 448; Dayton v. not be regarded more favorably than
Walsh, 47 Wis. 113. others who dispose of their business to
3 Nash V. Mitchell, 71 N. Y. 109. hand fde purchasers. Morgan v. Per-
* Frecking v. RoUand, 53 N. Y. 442 ; hamiis, 86 Oliio St. 517. And see Re
75 Ala. .306; Abbott v. Jack.son, 43 Peacock's Trusts, L. R. 10 Ch. D. 490.
Ark. 212. As to purchasing fi.xtures ^ Parker y. Simonds, 1 Allen, 258;
of real estate for carrying on the busi- Colby v. Lanison, .39 Me. 119 ; Trieber
ness, see 76.; Dayton v. Walsh, 47 ?;. Stover, 30 Ark. 727 ; Tuttle v. Hoag,
46 Mo. 3a
244
CHAP. XII.] wife's separate TRADE. § 168
In ^Massachusetts, where the statutory doctrine of the wife's
power to trade and acquire separate earnings promptly re-
ceived a considerable exposition in the courts, it is held that
where a married woman carries on the business of keeping
boarders on her sole and separate account, and has purchased
goods to be used in her business on her sole credit, she alone is
liable, although her husband lived with her when the goods
were purchased ; and her own acts and admissions in reference
to the business are competent evidence against her.^ In Maine
the husband cannot be sued for goods and chattels furnished
his wife by third persons in the course of her business, even
though such purchases were made by her with his knowledge
and consent, and although she appropriated part of the proceeds
to the support of her husband and family.^ But where the
purchase and sales are made with the husband's knowledge and
consent, and he participates in the profits of the business, know-
ing them to be such, and that she professed to act for him, it
may be inferred in general that the purchases were made on
the husband's credit.^ Where the separate business, however,
is carried on against the husband's consent and without his
concurrence, he assuredly is not liable.*
In New York, as against her husband's creditors, the wife
may make him managing agent, and let him conduct the busi-
ness in her name, while she furnishes the capital from her own
means and takes the profits to herself; paying the managing
agent what she thinks best, without subjecting the stock in
trade to his debts.^ So, too, under the New Jersey statute,
1 Parker v. Simonds, 1 Allen, 258. And see Sherman v. Eider, 24 N. Y.
As to husband's liability on a lease, 381 ; Barton v. Beer, -35 Barb. 78 ; Ab-
thout^h professing to underlet for a bey v. Deyo, 44 N. Y. ?A?> ; Hamilton
wife's business, see Knowles v. Hull, v. Doujilas, 46 N. Y. .318; Schouler,
99 Mass. 562. But see § 166, requiring Hus. & Wife, § 314. All purchases or
registry of a separate business. contracts of purchase for commencing
^ Colby V. Lamson, .39 Me. 119. or prosecuting the wife's separate busi-
8 Oxnard v. Swanton, .39 Me. 125. ness must have been made in good
* Tuttle V. Hoag, 46 Mo. 38 ; Jen- faith, and not as a means of fraudu-
kins V. Flinn, 37 Ind. 349. See Smith lently placing the husband's property
V. Thompson, 36 Conn. 107, where the beyond the reach of his creditors.
married woman had no power to trade Dayton v. Walsh, 47 Wis. 113. But
as a feme sole. the employment of her husband in car-
5 Buckley v. Wells, 33 N. Y. 518. rying on her separate business of farm-
245
§168
THE DOMESTIC RELATIONS.
[PAKT II.
which allows the wife the fruits of an occupation carried on by
her separately from her husband, she may obtain the goods
from one who buys of her husbands creditor, pay the consid-
eration and employ her husband for his board and clothing to
carry on the business ; and in such a case the husband's cred-
itors can assert no claim upon the goods or the profits of the
business.^ Elsewhere the wife is permitted to employ her
husband as clerk or agent in her business.^
Where a married woman manages a separate trade or business
by agents, the usual doctrine of agency must apply. The wife
cannot avoid the usual liabilities on the plea that she made her
husband her agent.^ The scope of the agency, too, must be
considered as in other cases, and the agency, as actually con-
ferred, is not the full test of responsibility for the agents
dealings with third parties; for those clothed with apparent
authority may bind their principals as though really authorized.*
In short, married women, as it is well observed, to the extent
and in the matters of business in which they are by law per-
mitted to engage, owe the same duty to those with whom they
ing does not make him the wife's agent
in the business, unless he contributed
money or services as partner: lb. ; nor
his employment as salesman in the
wife's store : Floss v. Thomas, 6 Mo.
App. 157 ; or as operative or manager
in his wife's mill. Cooper v. Ham, 49
Ind 393. Proof that a liusband signed
notes for goods in a shop leased to him
is not conclusive proof that the goods
did not belong to the wife's separate
business: Mason v. Bowles, 117 Mass.
86 ; for a husband might sign as an
agent and render her business liable.
Freiberg v. Branigan, 18 Hun, 344.
But as to a judgment rendered against
the agent liimself, see Smiley r. Meyer,
55 Miss. 555. And see 130 Mass. 247.
But transactions which are tainted
with fraud upon the rights of creditors
and others must not be permitted to
stand. Capital placed by a wife in her
husband's hands, and by him so em-
barked in business with her assent
that credit is obtained upon it, is not,
with the increase, the wife's separate
246
property as against his creditors who
have trusted accordingly, but rather
his property. Pat ton v. Gates, 67 III.
164 ; Kouskop v. Siiontz, 51 Wis. 204.
Or possibly like that of a firm in which
both were partners. See § ItiO, post.
A change in the mutual relations of
the spouses regarding the business
ought, on the usual principles of both
agency and partnership, to be brought
home to the knowledge of creditors
with whom business relations continue
uninterrupted. Bodine v. Killeen, 53
N. Y. 93.
1 Kutclier v. Williams, 40 N. J. Eq.
436. And see § 169 ; 32 Kan. 637.
2 Hossfeldt )'. Dill, 28 Minn. 469;
Cubberly v. Scott, 98 III. 38 ; Martinez
V. Ward, 19 Fla. 175. While a wife
carries on business through her lius-
band as agent, he may bind her sepa-
rate property by a note duly given.
23 W. Va. 236 ; 54 Vt. 384.
3 Porter v. Gamba, 43 Cal. 105.
4 Bodine v. Killeen, 53 N. Y. 93 ; 78
Ala. 372.
CHAP. XII.] wife's separate TRADE. § 169
deal, and to the public, and may be bound in the same manner
as if they were unmarried. To the extent of their enlarged
capacity to transact business as conferred by statute, they may
be estopped by their acts and declarations, and made subject to
all the presumptions which the law indulges against the otlier
sex.^ And while, in general, the husband's gift may sustain the
wife's claim of profits accruing from her separate trade ; yet the
better opinion is, upon either equity or statute consideration,
that a business carried on by a husband and wife in co-opera-
tion, his labor and skill uniting with hers, must be considered
as his business so far as his creditors are concerned, and fail
accordingly of protection for her especial benefit ; ^ though it
might, perhaps, be well ruled in some States, that there is a
partnership whose liabilities should be adjusted under partner-
ship rules, highly objectionable as the jurist may well regard
all such partnerships upon principle. Separate property of the
husband which the wife uses in carrying on her separate busi-
ness is liable to his creditors for his own debts.^
§ 169. Wife as Copartner -writh Husband or Others. — As to
all agencies and all partnerships, one rule may apply in adjust-
ing rights as between themselves, and another as to creditors
whose confidence has been invited. And, on the whole, it
would still appear to be the general rule, notwithstanding the
late statutes, that a wife may not, as against the world, become
her husband's partner, nor even join her labor and capital to his
in one and the same business enterprise.* In Massachusetts,
while the statute permitted the wife to form a copartnership
with third parties, this exception the court so strictly enforced,
as to hold her transactions as a member of any firm in which
her husband was interested as a partner utterly void, whether
1 Bodine v. Killeen, 53 N. Y. 9.3; stances where the husband helps to
Parshall I'. Fisher, 43 Mich. 529; Leland raise crops on the wife's farm, which
V. Coliver, 34 Mich. 418. are presumably her own, see Scott v.
2 See National Bank v. Sprague, 5 Hudson, 86 Ind. 286 ; 28 Minn. 469.
C. E. Green, 13 ; Oxnard v. Swanton, 3 Thomas (-•. Desmond, 63 Cal. 426.
39 Me. 125 ; Cramer v. Reford, 2 C. E. * Wilson v. Loomis, 55 III. 352 ;
Green, -383. But see Penn ?'. White- Montgomery ?;. Sprankle, 31 Ind 113;
head, 17 Graft. 503; 75 Va. 390; Par- Lord v. Parker, 3 Allen, 127; Brown
tridge v. Stocker, 36 Vt. 108 ; Schouler, v. Chancellor, 61 Tex 437; 91 Ind.
Hus. & Wife, §§ 303, 315. For in- 384. See 44 Ohio St. 192.
247
§ 169 THE DOMESTIC RELATIONS. [PART II.
to her advantage or injury, inasmuch as a married woman can-
not legally contract with her husband singly or jointly.^ But
under the New York statutes it is held that a husband and wife
may not only enter into a valid partnership together for busi-
ness, but carry it on under the name " A. & Co." (the " Co."
representing the wife) without violating the law which forbids
persons to transact business under fictitious names ; and that
hence they can sue and recover in their joint names for goods
sold and delivered by their firm.^
By the wife's business copartnership with third persons, and
particularly with those of the opposite sex apart from her hus-
band, she entangles her separate property disadvantageously,
and incurs the risk of personal affiliations, besides, quite perilous
to domestic concord and the mutual confidence which marriage
demands. In Massachusetts the legislature permitted a married
woman to form a copartnership in business with third parties,
though not with her husband ; but, after some ten years' expe-
rience, repealed, in 1874, that permission.^ Most other States
deny her such a right as separate and exclusive of her husband's
interest while she lives with him ; ^ though in some parts of the
Union such copartnerships are sustained,^ and she is not unfre-
quently found connected with business firms as a partner in
place of her deceased husband ; ^ sometimes, too, he is her
successor, or else participates with her and third persons in the
concern.'^
Where a married woman enters legally into a copartnership,
she becomes personally liable, to the extent of her separate
1 Lord i;. Parker, .3 Allen, 127 ; Ed- or equity. Fowle v. Torrey, 135 Mass.
wards u. Stevens, 3 Allen, 315; Pluraer 87.
j;. Lord, 7 Allen, 481. » Todd v. Clapp, 118 Mass. 495".
■^ Zinnnerman v. Erhard, 8 Daly, Such repeal, not being interpreted re-
311. And so as to other States. See troactively, was held constitutional.
Re Kinkead, 3 Biss. 405; Schonler, lb.
Hus. & Wife. § 316; Camden v. Mul- * See Bradford r. Johnson, 44 Tex.
len, '29 Cal. 564 ; Reading r. Mullen, 31 381; 01 Tex. 437; 20 W. Va. 571;
Cal. 104 ; At wood v. Meredith, 37 Miss. Bradstreet v. Baer, 41 Md. 19 ; Howard
6.35 ; Oi^lesby v. Hall, 30 Ga. 386; 60 v. Stephens, 52 Miss. 230.
Miss. 238. ^ See Newman v. Morris, 52 Miss.
A woman who lends money to a 402 ; Dunifer v. Jecko, 87 Mo. 282.
partnership of wiiich her husband is a ® Preusser v. Henshaw, 49 Iowa, 41.
member cannot recover it back in law ^ Bitter r. Hathman, 61 N. Y. 512;
248
Swasey v. Antram, 24 Ohio St. 87.
CHAP. XIT.] wife's SEPAKATE TRADE.
5 170
property, for the partnership debts, like any other partner.^
But our latest decisions tend to protect the wife against co-
partnership liabilities.^
§ 170. Civil-Law Doctrine of Separate Trade. — By the Civil
Code of France, the wife may carry on a trade independently
of her husband.^ So the wife may be a separate trader under
the custom of Paris.* And a similar right is recognized by the
laws of Spain and other European countries.^ From the civil,
rather than the common law, are derived those property rights
of married women which are recognized in Louisiana, California,
and others of the Southwestern States, originally colonized by
the Spanish and French. Thus the Louisiana Code recognizes
the capacity of the wife to carry on separate trade, or, as it is
said, to constitute herself a public merchant, provided she act
bona fide and have an active agency in the concern.^
1 Preusser v. Henshaw, 49 Iowa,
41 ; Newman v. Morris, 52 Miss. 402.
2 See Swasey v. Antram, 24 Oliio St.
87; Parshall i'. Fislier, 43 Midi. 529;
Carey I'. Burruss, 20 W. Va. 571 ; Bitter
V. Rathmaii, 01 N. Y. 512; Sdiouler,
Hus. & Wife, § 318 ; Frank v. Ander-
son, 13 Lea, 695. See, as to enforcing
trading liabilities against a wife, Schou-
ler, Hus. & Wife, §§ 319, 320.
3 Code Civil, art. 220 ; 1 Burge, Col.
&For. Laws, 219.
* 1 Burge, Col. & For. Laws, 218.
5 lb. 226, 420, 698.
6 La. Code, art. 128; Christensen
V. Stumpf, 16 La. Ann. 50. And see
Camden v. Mullen, 29 Cal. 564; Read-
ing V. Mullen, 31 Cal. 101; Commu-
nity Doctrine, supra, § 7.
As to modern c/i<inf/es in marital rights
and duties. — How great the change
which modern equity and legislation
liave wrought, and modern legislation
especially, in marital rights and duties
as defined by the common law, will
further appear from the miscellaneous
clianges noticed in Schouler, Hu'^. &
Wife, §§ ."iil-SSM, whicli see passim;
also Appendix, with analysis of latest
married women's acts. These changes,
which concern contracts, torts, prop-
erty of the wife, and suits by or against
her, may be specified as chiefly relat-
ing: (1) to the wife's antenuptial
debts; (2) to tlie wife's general disa-
bility to contract ; (-j) to the necessa-
ries of wife and family ; (4) to torts
committed by the wife; (5) to torts
committed upon the wife; (6) to torts
or crimes committed by one spouse and
affecting the other; (7) to tlie wife's
property ; (8) to actions by or against
a married woman, lier arbitration, &c.
Many codes in these respects com-
pletely reverse the old rule of the com-
mon law.
To attempt a minute analysis of the
married women's acts would require
more space than our plan will permit.
Nor would it profit the reader. The in-
dependent legislation of some forty
distinct communities, witliout uniform-
ity of plan or principle, involving, as it
does, the most interesting and yet the
most perplexing of social problems,
must necessarily produce results which
cannot be reconciled. It is too early
yet to generalize from the decisions.
Y.ven though tlie hand of innovation
should be stayed for a while, and pub-
lic attention centre in the work of
blending these results into harmony, it
249
§ 171 THE DOMESTIC RELATIONS. [PART II.
CHAPTER XIII.
ANfENUPTIAL SETTLEMENTS.
§ 171. Nature of Marriage Settlements. — Settlements are a
useful contrivance for preserving estates intact in a family.
As between husband and wife the word " settlement " is applied
to their mutual contracts in reference to the property of one
another, by means of which, under the protection of courts of
equity (which favor, as did also the civil law, arrangements in
recognition of property in the wife as well as the husband),
they change and control the general rules of the marriage state.
They cannot vary the terms of the conjugal relation itself ; they
cannot add to or take from the personal rights and duties of
husband and wife ; but they may essentially alter the interest
which each takes in the property of the other, if they choose to
enter into special stipulations for that purpose. These special
stipulations may be either antenuptial or postnuptial ; while, as
we shall soon perceive, the two classes are more alike in name
than substance, and the term " marriage settlements " is fre-
quently applied to antenuptial settlements only.
would be many years before our courts, eitlier, regarding the wife as peculiarly
applying local codes and the traditions exposed to coercion and subtle influ-
of the English common law and equity enee, if not mastery by main force
jurisprudence to tlie discordant mass of from the natural necessities of lier po-
material before them, could hope to set sition in tiie conjugal partnersliip, if not
up a consistent and thorough American the weakness of her sex, to afford that
system. As one of our own jurists legal protection and shelter wliicli siie
well remarks, wlierever the line may has always claimed, and whicii our law
be drawn, it will be long before the in a strait could never deny her ; or
public will understand and recognize else, as though no such necessities ex-
the point wliere the power of a married ist in a state of nature, but her disabili-
woman to bind herself by her bargains ties have been rather created by muni-
ceases, and frauds upon the thoughtless cipal lavv, and enforced by tyrannical
and inconsiderate must often occur, men, to treat her as s(» 7?/r/s, and make
Per Bell, C. J., in Ames v. Foster, 42 her bear the full responsibility of her
N. H. 381. The ultimate scope of all own legal engagements, be they pru-
this legislation must, however, be dent or foolish, like one discovert.
250
CHAP. XIII.] ANTENUPTIAL SETTLEMENTS. § 173
§ 172. Distinguished from Promises to Marry ; Statute of
Frauds. — A distinction meets us at the outset between prom-
ises to marry and promises in consideration of marriage. The
Statute of Frauds, § 4, requires that promises and agreements
in consideration of marriage shall be " in writing, and signed by
the party to be charged therewith, or some other person there-
unto by him lawfully authorized." Yet a promise to marry is
binding, although verbal.^ It would strike any one (except
perhaps a lawyer) that a promise by a woman to marry a man
in consideration of his promising to marry her was an agree-
ment made in consideration of marriage, but it is not.^ Perhaps
it is public policy which sustains the latter rather than the
former contract without requiring a writing. Perhaps, too, this
carries weight : that a promise to marry is merely a promise to
enter into a certain relation, and therefore clearly interpreted
by any court without the aid of written evidence, provided the
promise be once proved ; while the Statute of Frauds is found
most convenient for clearly fixing .mutual stipulations which
might be varied in a thousand ways, and affect the property
rights of the contracting parties accordingly. At all events, a
promise to marry, whether verbal or written, affords a singular
remedy for breach, one quite different from the remedies attend-
ing marriage settlements ; namely, no right of specific perform-
ance, but always damages to the injured party.
It is held, however, that in order to affect the fee simple of
an intended wife's lands with a trust for her separate use, an
antenuptial agreement must be in writing and signed by both
the persons who contemplate marrying one another^
§ 173. Marriage the Consideration -which supports Antenup-
tial Settlements. — In antenuptial marriage settlements, or what
are called " marriage settlements," the marriage affords a suffi-
cient consideration. Hence a man cannot set aside an agree-
ment in contemplation of marriage, on the plea that his wife's
fortune fell short of his expectations ; for, as Lord Hardwicke
1 Maeq. Hus. & Wife, 220; Cook 2 See Smith on Contracts, 57.
V. Balcer. 1 Stra. 34 ; Harrison v. Cage, 3 Dyg v. Bye, 13 Q. B. D. 147. See
1 Ld. Raym. 386 ; Schouler, Hus. & § 179.
Wife, § 44.
251
§ 174 THE DOMESTIC RELATIONS. [PART II.
observed, it would be extremely mischievous to set aside mar-
riage settlements upon such grounds.^ It is the consideration
of marriage, not the consideration of a corresponding fortune,
which runs through the whole settlement or agreement, and
supports every part of it, thus making marriage not only a
high, but the highest consideration in fact known to the law.^
In this country the validity of marriage settlements is gen-
erally recognized ; and it is well understood that almost any
bona fide and reasonable agreement, made before marriage, to
secure the wife either in the enjoyment of her own property or
a portion of that of her husband, whether during coverture or
after his death, will be carried into execution in chancery.^
" These marriage settlements," observes Chancellor Kent, " are
benignly intended to secure to the wife a certain support in
every event, and to guard her against being overwhelmed by
the misfortunes or unkindness or vices of her husband. They
usually proceed from the prudence and foresight of friends, or
the warm and anxious affection of parents ; and, if fairly made,
they ought to be supported according to the true intent and
meaning of the instrument by which they are created."* And
marriage is of itself pronounced in the supreme court of this
land to be not only a valuable consideration to support a mar-
riage settlement, " but a consideration of the highest value." ^
§ 174. How far this Support Extends. — But this rule must
be taken with some caution. The marriage consideration sup-
ports every provision with regard to the husband, the wife, and
the issue. As for marriage itself, the marriage of persons for-
merly in loose cohabitation furnishes good consideration ; ^ and
1 Ex parte Marsh, 1 Atk. 159. 3 Cal. 83 ; Smith v. Chappell, 31 Conn.
2 Ford V. Stuart, 15 Beav. 499 ; Nairn 580.
V. Prouse, 6 Ves. 752 ; Peachey, Mar. An estate may be limited to an un-
Settl. 56. married woman's separate use, even
^ Stilley V. Folger, 14 Ohio, 610; where no particular marriage is eon-
2 Kent, Com. 163 ; 2 U. S. Eq. Dig. templated. Schouler, Hus. & Wife, §'
Hus. & Wife, 22-30 ; English r. Foxall, 198 ; Haymond v. Jones, 33 Gratt. 317.
2 Pet. 595 ; Hunter v. Bryant, 2 Wlieat. * 2 Kent, Com. 165.
32; Tarbell v. Tarbell, 10 Allen, 278; 5 Per Story, J., Magniac v. Thomp-
Skillman v. Skillman, 2 Beasl. 403 ; son, 7 Pet. 348. And see Armfield v.
Cartledge v. Cutliff, 29 Ga. 758 ; Albert Armfield, 1 Freeni. Ch. 311.
V. Winn, 5 Md. 66 ; Snyder i-. Webb, ^ Herring v. Wickhani, 29 Graft.
628.
252
CHAP. XIII.] ANTENUPTIAL SETTLEMENTS.
174
even perhaps a void or illegal marriage, provided that marriage
was contracted with honest conjugal intent, and particularly
where the question affects only their respective interests.^ The
consideration is held also to extend to stepchildren by a former
marriage.^ It does not, however, always extend to collaterals,^
though Sir Matthew Hale and others held formerly that it
would, maintaining that the influence of the marriage consid-
eration extended to purchasers generally.^ Nor are covenants
in favor of strangers supported by the marriage consideration
unless specially provided for.^
The consideration of marriage will support a settlement
against creditors, even prior ones ; this, too, it would appear,
though the parties both knew of the husband's indebtedness, so
long as the provisions of tlie settlement are not grossly out of
proportion to his station and circumstances ;'' and so, too, where
the party to be benefited thereby was implicated in no fraud
upon the other's creditors, even though that provision be unrea-
sonably large.'^ But if it appear that the celebration of mar-
1 Even in England, upon lapse of
time, a settlement deed was allowed to
stand wliere a widower had married his
deceased wife's sister. Ayers v. Jen-
kins, L. R. 16 Eq. 275 ; § 16.
2 Michael v. Morey, 26 Md. 239;
Gale V. Gale. 6 Ch. D. Ui; Vason v.
Bell, 53 Ga. 516. But see Price r. Jen-
kins, 4 Ch. D. 483. Cf. Ardis v. Printup,
39 Ga. 648, with Wollaston v. Tr^be,
L. R. 9 Eq 44, as to children of a fu-
ture marriage.
3 Peachey, Mar. Settl. 58, 60, and
cases cited ; Davenport v. Bishop, 1
Piiil. 701 ; Barham v. Earl of Claren-
don, 10 Hare, 133; Ford v. Stuart, 15
Beav. 505; Cotterell v. Homer, 13 Sim
506; Wollaston v. Tribe, L. R. 9 Eq
44 ; Paul v. Paul, 20 Ch. D. 742.
* Jenkins v. Kemis, 1 Ch. Cas. 103
1 Lev. 152.
6 Sutton V. Chetwynd, 3 Mer. 249
per Sir \Vm. Grant ; Sugden,Law Prop
153; Peachey, Mar. Settl. 61.
6 Campion v. Cotton, 17 "Ves. 272
Ex parte McBurnie, 1 De G. M. & G
446 ; Ramsay v. Richardson, Riley Ch
271 ; Armfield r. Armfield, I Freem.
Ch. 311; Jones's Appeal, 62 Penn. St.
324; Brunnel v. Witherow, 29 Ind. 123;
Barrow v. Barrow, 2 Dick. 504 ; Coch-
ran v. McBeath, 1 Del. Ch. 187 ; Credle
V. Carrawan, 44 N. C. 422.
■^ Collaterals are favorably regarded
in Neves v. Scott, 9 How. (U. S.) 196;
lb. 13 How. 268; Schouler, Hus. &
Wife, § 349, and cases cited. Where
no fraud upon the husband's creditors
can be charged on the woman, she may
hold as a purchaser for value against
the husband's prior creditors, even
though the settlement upon her em-
braced the husband's whole estate, and
the marrying parties had been cohabit-
ing while single, and had illegitimate
children. Herring i\ Wickham, 29
Gratt. 628. Tiiis is an extreme case,
and perhaps some other States would
not extend the rule so far. But it finds
strong support from the Supreme Court
of the United States in a case decided
in 1881, which upheld the settlement
of a large amount of real estate, in con-
sideration of marriage, by an insolvent
253
§ 175 THE DOMESTIC RELATIONS. [PART II.
riage is part of a scheme between the marrying parties to
defraud and delay creditors, such settlement will not be al-
lowed to protect the property against just claims of the latter.^
At all events both parties to the settlement must have known
of the intended fraud in such cases. Where fraud has been
conmiitted by husband and wife in reference to property em-
braced in the terms of a settlement, the rights of a creditor
with insufficient notice are sometimes upheld as against them-
selves ; and a wife's settlement of her own property has been
so far set aside as to secure payment of her antenuptial debt to
the creditor.^
§ 175. Settlement Good in Pursuance of Written Agreement.
— If an agreement be made in writing before marriaf^e, for the
settlement of an estate, the settlement, although made after
marriage, will be deemed valuable.^ This is a well-settled rule,
and should be constantly borne in mind.
There are dicta to the effect that a settlement after marriage,
reciting a parol agreement before marriage, is not fraudulent
against creditors, provided the agreement had actual existence ;
but this point has never been distinctly decided in England ;
and some late authorities appear to doubt its correctness.* The
payment of money would, however, make a good consideration
for such a settlement as against subsequent creditors.^ The
language of the Statute of Frauds has a material bearing upon
debtor upon the woman who accepted ^ Reade r. Livingston, 8 Johns. Ch.
him, notwithstanding the latter knew 481; Finch v. Finch, 10 Ohio St. 501;
he was financially embarrassed. Prewit Izard v. Izard, 1 Bailey Cii. 228 ; David-
r. Wilson, 103 U. S. 22 See comments, son y. Graves, Riley Ch. 219; Satter-
Schouler, Hus. & Wife, § .349. And thwaite v. Emley, 3 Green Ch. 489;
see Kevan ?■. Crawford, 6 Ch. D. 20; Rogers v. Brightman, 10 Wis. 55;
Exchange Bank v. Watson, 13 R. I. 91 ; Peachey, Mar. Settl. 63 ; Sugd. Vend.
Sanders «;. Miller, 79 Ky. 517. & Purcli., 1.3th ed. 590; Macq. Hus. &
1 Columbine v. Penhall, 1 Sm. & Wife, 257.
Gif. 228 ; Goldsmith v. Russell, 5 De G. * See Peachey, Mar. Settl. 63 ; Las-
M. & G. 555; Peachey, Mar. Settl. 63; sence v. Tierney, 1 Mac. & Gor. 571
Simpson v. Graves, Riley Ch. 2.32. Warden v. Jones, 5 W. R. 447. And
2 Sharpe v. Foy, L. R. 4 Ch. .35; see Babcock v. Smith, 22 Pick. 61
Smith V. Chirrell, L. R. 4Eq. 390; Simpson r. Graves, Riley Ch. 232.
Chubb V. Stretch, L. R. 9 Eq. 555; 6 Stillman o. Ashdown, 2 Atk. 478
Obermayer v. Greenleaf, 42 Mo. 304; Brown v. Jones, 1 Atk. 189. And see
Brame v. McGee, 46 Ala. 170. As to Butterfield v. Heath, 15 Beav. 414.
the good fnitli of a grantee in such
fraudulent settlements, see 79 Va. 92.
254
CHAP. XIII.] ANTENUPTIAL SETTLEMENTS. § 176
all such cases. Yet very informal agreements are often sus-
tained, rather on liberal than technical construction, the court
taking into consideration the fact that marriage had taken
place, or other acts been performed, on the strength of the
promise. 1 The disposition of equity courts in the United
States is favorable to settlements after marriage in pursuance
of some informal prior agreement, particularly as relates to per-
sonal property and as between the spouses themselves. Other
considerations, such as forbearance to sue, or the fulfilment, in
return, of terms prejudicial, might intervene.^ A mere oral
agreement between the intended husband and wife, followed by
marriage and a continued recognition by acts, especially in con-
nection with such other consideration, is held sufficient for the
wife's favor in some late American cases, as between the parties
and those claiming under them.^
§ 176. Form of Antenuptial Settlements. — With respect tO
the form of marriage settlements it may be generally observed
that equity pays no regard to the externals, but considers only
the substantial intention of the parties ; and hence articles or
an agreement will be binding between husband and wife with-
out the intervention of trustees ; for here the husband himself
may be bound to act as trustee.* And hence the signature of
^ See Livingston v. Livingston, 2 afforded in an early decision by Lord
Johns. Ch. 481 ; Resor v. Resor, 9 Ind. Keeper Wright. The intended hus-
347; Broolis v. Dent, 1 Md. Ch. 528; band gave the intended wife a bond
West V. Howard, 20 Conn. 581. conditioned to leave her £1,000 if slie
2 Riley r. Riley, 25 Conn. 154; Brad- should survive him. They married,
ley V. Saddler, 54 Ga. 681. See, as to and of course the bond became void at
the like English practice, Peachey, law. But it was held that in equity
Mar. Settl. 74, 87 ; Macq. Hus. & this should subsist as an antenuptial
Wife, 234 ; Hatnmersiey (-■. De Biel, 12 agreement. Acton v. Pierce, 2 Vern.
CI. & Fin. 45; Lassence v. Tierney, 1 480. Even in law a bond, with condi-
Mac. & Gor. 571. The numerous rf/rta tions properly expressed, may be en-
in all such cases serve rather to ob- forced against the husband to the
scure than illustrate the principle. extent of the penalty therein named ;
•* See Schouler, Hus. & Wife, § .350, yet equity, regarding the contract as
and cases cited; post, §§ 176, 179. one for specific performance, will not
* Peachey, Mar. Settl. 65; Macq. confine the remed_v of the injured party
Hus. & Wife, 242 ; Logan v. Goodall, to the penal sum named in the bond ;
42 Ga. 95. But see Dillaye v. Green- but, enforcing the real obligations of
ough, 45 N. Y. 438. the bond, will give, if need be, thirty
A strong instance of the liberality times that sum to her who married on
of the equity courts in this respect was the strength of it. Such is the advan-
255
§ 177 THE DOMESTIC RELATIONS. [PART II.
the wife to an instrument or an indenture deed is by no means
indispensable in order that her rights upon marriage considera-
tion be sustained.^ But it is held that an antenuptial instru-
ment, executed by the husband only, binds himself alone by
its purport, though in form an indenture.^ Oral settlements
should only be sustained on clear and convincing proof ; for
such arrangements ought properly to be in writing.^
§ 177. Marriage Articles. — In this connection the use of the
term " marriage articles " is properly to be noticed. " When
promises and agreements in consideration of marriage," says
Mr. Macqueen, " are meant to become the ground-work of set-
tlements, they are called marriage articles. They are often
drawn up hastily, and signed on the eve of the nuptial cere-
mony from want of time to prepare a final deed ; which, how-
ever, when ultimately executed, if it be in strict conformity
with the articles, will supersede them." * The American rule
is favorable to marriage articles, although unskilfully drawn, so
long as they are bona fide articles, and the party marrying
upon their faith had good reason to rely upon them as such.^
Any settlement made after marriage, in pursuance of marriage
articles, or what may be construed as such, receives the full
support of the marriage consideration, and must prevail accord-
ingly against creditors, purchasers, and each of the married
parties.
Letters or a correspondence before marriage may establish an
antenuptial settlement where they sufficiently furnish the terms
of the agreement. And so, too, may they constitute m&rriage
articles and support a settlement made in pursuance of their
tage of equity over the law. See Preb- ^ Cochran v. McBeath, 1 Del. Cli.
ble V. Bosflmrst, 1 Swan. 309, before 187.
Lord Elilon, cited in Macq. Hus. & ^ Chadwell v. Wheless, 6 Lea, 812.
Wife. 243 H seq. , Cannel v. Buckle, 2 ^ Hunt's Appeal, 100 I'enn. St. 500;
P. Wms. 242; liippon v. Dawding, 62 Miss. 302. And see § 172.
Ambl. 565 ; Peachey, Mar. Settl. 05. * Macq. Hus. & Wife, 246.
Bonds have been frequently enforced ^ Neves '•. Scott, 9 How. 196; Hooks
in this country as constituting a mar- v. Lee, 8 Ired. Eq. 157; Rivers v.
riage settlement. Aucker r. Levy, 8 Thayer, 7 Rich. Eq. 136; Kinnard u.
Strobh. Eq lit?; Hunter ?'. Bryant, 2 Daniel, 13 B. Monr. 496 ; Montgomery
Wheat. .32; Freeman r. Hill, 1 Dev. & v. Henderson, 3 Jones Eq. 113; Smith
Bat. Eq. .389; Baldwin v. Carter, 17 v. Moore, 3 Green Ch. 485; Potts v.
Conn. 201. Cogdell, 1 Desaus. 456.
256
CHAP. XIII.] ANTENUPTIAL SETTLEMENTS. § 178
terms. ^ But the authenticity of such correspondence should be
well established, so easy is such proof manufactured to suit
emergencies ; and certainly where the contest is between the
married pair and a husband's creditors, the true date of the
letters should be proved, or else that they were duly received
before the marriage ^ Nor will performance be decreed, unless
it can be gathered, from a fair interpretation of the letters, that
they imported a concluded agreement, and induced the mar-
riage ; nor if it be doubtful whether what passed was not mere
negotiation, or a gratuitous offer by the one, which the other
never accepted nor meant to rely upon.^
§ 178. Marriage Settlements by Third Persons. — Promises
made in consideration of the marriage by a third party, such as
the wife's father, may afterwards be enforced against him, as (in
such an instance) by the husband. But it must appear that the
latter knew of the promise, and that it entered as an ingredient
into the marriage ; and the husband cannot, upon finding, after
marriage, that his wife, while single, had received a letter from
her father, promising a certain allowance, hold the latter to spe-
cific performance.^ The promise of a third party may be for the
wife's benefit ; or it may be for the mutual benefit of the mar-
ried parties, and enforceable accordingly.^
Courts of equity have frequently refused, however, to enforce
marriage agreements on the ground of their being inconsistent,
uncertain, and unintelligible ; ^ and particularly is this found-
true of loose expressions contained in letters written by rela-
tives of the married parties, upon which the attempt is made to-
1 Logan V. Wienholt, 1 CI. & Fin. estate of a father was held bound by
611 ; Hanimersley v. De Biel, 12 CI. & his written statements of intention to
Fin. 45; Moorhousey. Colvin, 15 Beav. settle the whole of his property upon
319 ; Kinnard v. Daniel, 13 B. Monr. his daughter, on the strength of wiiich
496; 17 Ch. D. 361, .365. she married; and this, notwithstanding
2 Kinnard v. Daniel, 13 B. Monr. the father, being at the time a widower,
496 ; Montgomery v. Henderson, 8 Jones remarried afterwards and left a widow.
Eq. 113. Coverdale v. Eastwood, L. R. 15 Eq.
'' Fowle V. Freeman, 9 Ves. 315 ; 121 ; a harsh case, truly.
Card V. Jaffray, 2 Sch. & Lef. 384; ^ Franks v. Martin, 1 Eden, 309;
Ciiambers v. Sallie, 29 Ark. 407. Kay v. Crook, 3 Jur. n. s. 107 ; Peachey,
* Ayliffe v. Tracy, 2 P. Wms. 66 ; Mar. Settl. 68 ; Quinlan v. Quinlan,
Madox V. Nowlan, Beatty, 6-32. Hayes & Jones, Ir. Rep 785; Maunsell
^ Thus, in a recent English case the v. White, 1 Jo. & Lat. 539. .
17 257
§ 180 THE DOMESTIC RELATIONS. [PART II.
render them chargeable when the marriage was not thereby
induced. 1
§ 179. Effect of statute of Frauds. — Under the English
Statute of Frauds, and similar enactments in various Ameri-
can States, promises "in consideration of marriage" are required
to be in writing ; and hence an oral promise to settle property
upon an intended spouse is void.^ Cases have arisen, however,
under the Statute of Frauds, where the marriage agreement had
been reduced to writing, but not signed, and yet letters passed
afterwards between the parties, referring to the agreement, which
sufficed to establish it. In general, a letter which contains the
terms of an agreement, or refers to another paper which speci-
fies the terms, is sufficient to take the contract out of the Stat-
ute of Frauds.^
§ 180. General Requirements; Trustee, &o. — Antenuptial
agreements are so liable to misapprehension and fraud, that
they will not be enforced in equity unless the court is satisfied
that they were made, and that the marriage consideration
really entered into the contract."* If in the form of a writ-
ing, due delivery should appear; though if the written con-
tract be produced from the proper custody, and its execution
proved, proper delivery is readily presumed.^ Where duly
made and delivered, such settlements may be cancelled ; but
whether a mutilated instrument was intentionally cancelled
or not is matter for proof."
1 Hincks v. Allen, 28 W. R. 533. Crook, 3 Jnr. n. s. 107 ; Montgomery
As to carrying out the wishes of a ■;;. Henderson, 3 Jones Eq. 113; Peachey,
third party respecting property de- Mar. Settl. 68; Kinnard v. Daniel, 13
vised so as to settle it upon marrying, B. Monr. 496.
see Teasdale v. Braithwaite, 5 Ch. D. 5 in Smith v. Moore, 3 Green Ch.
630. 485, the document being found in tlie
2 Tawney v. Crowther, 3 Bro. C. C. husband's possession after his death,
263 ; Coles v. Trecothick, 9 Ves. 250 ; execution proved, and also his recog-
Lloyd V. Fulton, 91 U. S. Supr. 479 ; nition during his lifetime, due delivery
Flenner v. Flenner, 29 Ind. 569 ; Henry was presumed.
V. Henry, 27 Ohio St. 121 ; § 172. « Barclay v. Waring, 58 Ga. 86.
8 Hammersley v. De Biel, 12 CI. & See summary of doctrine in Bold v.
Fin. 45 ; Moorhouse y. Colvin, 15 Beav. Hutchinson, 20 Beav. 259; Schouler,
349 ; Peachey, Mar. Settl. 67 ; 3 Bro. Hus. & Wife, § 355. As to an ante-
C. C. 263. nuptial conveyance of land to a trustee
* Coles V. Trecothick, 9 Ves. 250 ; to stand seised to the female grantor's
Franks v. Martin, 1 Eden, 309 ; Kay v. use, see 63 N. H. 109.
258
CHAP. Xiri.] ANTENUPTIAL SETTLEMENTS. § 181
Under modern rules of separate use, a valid marriage settle-
ment may be made without the designation of a trustee, though
in such contracts, when drawn up with due formality, trustees
are commonly interposed outside the marriage relation, however,
who hold the legal title ; and such is unquestionably the more
prudent arrangement.^ The contract in contemplation of mar-
riage is so favorably regarded, that where the intended husband
gave his verbal assent to whatever disposal by will his intended
wife might make of her personal property, and she executed a
will liberal enough in its provision for him, which gave the resi-
due to other objects, the instrument, though necessarily revoked
as a will by her subsequent marriage, was allowed to stand as
an antenuptial settlement.^
§ 181. Secret Settlement before Marriage; Fraud of a Spouse.
— A secret settlement or voluntary transfer in whole or in part
of her property made by a woman upon third persons, while en-
gaged, and contemplating marriage, is liable to be set aside in
equity as a fraud upon the marital rights of her intended hus-
band, at the husband's instance, when he learns of it. Prima
facie, her transactions as a feme sole with reference to her own
property are valid both at law and in equity ; it is only be-
cause of the fraud that her husband can afterwards obtain relief
against them ; yet the English courts have gone far in discoun-
tenancing all conveyances made by the intended wife in deroga-
tion of the property rights of her intended husband, where made
without notice to him.'^ The secrecy of the proceeding is a ma-
terial element, from which fraud will be inferred.^
1 Cocliran r. McBeath, 1 Del. Ch. * England v. Downes, 2 Beav. 522 ;
187 ; Peachey, Mar. Settl. 260 ; Hay- Macq. Hus. & Wife, 36. Tlie Imsband
mond I'. Lee, 33 Gratt. 317; Schouler, must have been kept in ignorance of
Hus. «&. Wife, § 356. the transaction up to tlie moment of
- Lant's Appeal, 95 Penn. St. 279. marriage. For, as Lord Chancellor
But see § 176 ; 100 Penn. St. 500. A Brougham once observed, if a man,
written contract to this effect was up- knowing what has been done, still
held in Osgood v. Bliss, 141 Mass. 474. thinks fit to marry the lady, he cannot
3 Peachey, Mar. Settl. 142, and cases be permitted to allege afterwards that
cited; 11 C. B. 1035; St. George ?'. he has been deceived. St. George v.
Wake, 1 Myl. & K. 618 ; Macq. Hus. & Wake, 1 Myl. & K. 610. Actual con-
Wife, 36; England v. Downes, 2 Beav. currence on the part of the intended
522; 2 Ch. Rep. 81 ; 1 Eq. Cas. Ah. 59, husband in his wife's settlement will he
pi. 1. even more conclusive against him ; and,
259
§ 181 THE DOMESTIC RELATIONS. [PART II.
The same general doctrine has been repeatedly declared in
the courts of this country ; and secret and voluntary convey-
ances, made by a woman contemplating marriage, may be set
aside on the husband's subsequent application as a fraud upon
his marital rights,^ under the same qualification that the in-
tended spouse was thereby defrauded.^
If the wife's transfer or conveyance to another, under such
circumstances, be without valuable consideration to herself,
there is the less reason why equity should uphold it ; ^ and if
it be in plain derogation of her own interests, as, for instance,
to some insolvent relative to hold in trust for her, or so as to
suggest that fraud or coercion was practised upon her, it is for
the common nuptial interests that courts of chancery repudiate
the arrangement altogether.* By virtue of late statutory changes
tending to relieve a husband of his wife's antenuptial debts, or
of other common-law burdens, on her account, the husband may
sometimes stand in equity on the stronger footing of a defrauded
creditor, where he seeks to have the secret conveyance of his
affianced set aside in his favor.^
A corresponding rule as to fraud would, doubtless, apply to a
husband, who, before marriage, had made a secret transfer or
conveyance of his own property to his wife's injury ; not, how-
ever, without regard to the difference which subsists at law
between their marital rights in each other's property.^ Indeed,
it is sometimes said that any designed and material concealment
even though he were a minor, will ^ Schouler. Hus. & Wife, § 357 ;
preclude all subsequent allegations of Gregory i'. Winston, 23 Gratt. 102.
fraud on the marital right. 2 Bro. C. And see Green i\ Green, 34 Kan.
C. 545. It is the usual practice with 740.
English conveyancers at the present ^ Baker v. Jordan, 73 N. C. 145;
day to make the intended husband a Fletcher v. Ashley, 6 Gratt. 332.
party to all instruments executed by * Hall r. Carmichael, 8 Baxt. 211.
the intended wife in contemplation of ^ Westerman r. Westerman, 25 Ohio
or during atreaty of marriage. Peachey, St. 500. But see Powell v. Manson, 22
Mar. Settl. 155. Gratt. 177.
1 2 Kent, Com. 174, 175, and notes, " See Leach r.Duvall, 8 Bush, 201;
12th ed. ; Spencer v. Spencer, 3 Jones Gainor v. Gainor, 26 Iowa, 337. Lapse
Eq. 404; Tucker v. Andrews, 13 Me. of time and other circumstances may
124, 128 ; Williams v. Carle, 2 Stockt. remove any presumption of fraud or
543 ; Freeman r. Hartman, 45 111. 57 ; unfairness on his part. Butler v. But-
Baker v. Jordan, 73 N. C. 145 ; Hall v. ler, 21 Kan. 521.
Carmichael, 8 Baxt. 211.
260
CHAP. Xin.] ANTENUPTIAL SETTLEMENTS. § 183
ought to avoid an antenuptial contract at the will of the party
who has been thereby injured.^ As against the transferee from
either spouse, it may be an essential question whether he was
cognizant or not of the fraudulent purpose.^
§ 182. Reforming Marriage Settlements; Portions, &c. — Mar-
riage articles, to make a settlement of real property, should be
drawn up only in extreme cases ; though, in the case of person-
alty, more latitude may be allowed ; and when drawn up they
should leave as little to construction as possible. Yet marriage
articles are frequently prepared in great haste, and many ques-
tions must necessarily arise as to the intention of the parties ;
these the courts of equity endeavor to meet by adopting the
intention of the parties as their true guide, and taking it for
granted that the articles are merely minutes which the settle-
ment may explain more at large, but which are not to be liter-
ally followed.^ The general rule as to reforming settlements
framed upon antenuptial articles is thus laid down by Lord
Chancellor Talbot : '^ " Where articles are entered into before
marriage, and settlement made after marriage, differing from
the articles, this court will set up the articles against the settle-
ment." That is to say, the court will order the settlement to
be reformed.^
§ 183. Equity corrects Mistakes, or sets aside ; Fraud and Im-
providence. — Mistakes in marriage settlements, either through
1 Kline v. Kline, 57 Penn. St. 120 ; M. & G. 567. As to portions for chil-
Kline's Estate, 64 Penn. St. 122. dren, &c., see Schouler, Hus. & Wife,
'^ A mortgage of land secretly exe- § 359; 1 Atk.522; Wallace v. Wallace,
cuted by an intended husband to de- 82 111. 4.30 ; Russell v. St. Aubyn, L. R.
feat his intended wife's dower was 2 Ch. D. 398.
avoided in Kelly v. McGrath, 70 Ala. And curiously enough in an English
75. case under tiiis head, though the settle-
3 Peachey, Mar. Settl. 89-97; Macq. nient followed the precise words of the
Hus. & Wife, 257 ; Trevor v. Trevor, marriage articles, the court reformed it,
1 P. Wms. 631 ; Blandford v. Marl- in order to carry out the actual inten-
borough, 2 Atk. 545 ; Rochfort v. Fitz- tion of the parties. West v. Errissey,
raaurice, Dru. & War. 18. But see 2 P. Wms. 350.
Breadalbane v. Chandos, 2 Myl. & Cr. Marriage articles under which par-
711. ties agree to make a settlement and yet
* Legg V. Goldwire, Forrester, 20; fail to do so, may, apart from the par-
Macq. Hus. & Wife, 2.59. tial performance which marriage might
^ Legg V. Goldwire, Forrester, 20. be said to establish, afford one the right
See Peachey, Mar. Settl. 135 ; Bold v. to damages as against the other. Jes-
Hutchinson, 2 Jur. n. s. 97 ; 5 De G. ton v. Key, L. R. 6 Ch. 610.
261
§ 183 THE DOMESTIC RELATIONS. [PART II.
error or fraud, will in general be corrected in equity ; the prin-
ciple being that the parties are to be placed in the same situa-
tion in which they would have stood if the error to be corrected,
or the fraud, had not been coinmitted.i Owing, moreover, to
the confidential relation which subsists between the parties, an
antenuptial contract which appears to have been unfairly pro-
cured will be set aside.^ The provisions of an antenuptial
settlement are beneficially construed, if possible.^ Equity, more-
over, sometimes refuses to enforce an antenuptial settlement, as
between husband and wife, not only because of its fraudulent
character as regards the one or the other party, but on the
ground that it is improvident ; * yet relief of this sort is rarely
afforded, and especially so where a third party, or the husband,
not the wife, seeks it.^ And while the intended wife may, per-
haps, in an extreme case be relieved from an antenuptial con-
tract which bears very harshly upon her property rights, as
though defrauded and deceived in the arrangement, there is no
doubt that where she is of competent age she may bargain away
her rights quite extensively under a marriage contract, as her
husband likewise could have done ; provided, of course, that her
deliberate intention to do so be made manifest; and in tins
state of the law it certainly becomes a matter of serious ques-
tion what these fundamental property rights may be which
spouses ought not reciprocally to relinquish.^
1 Kooke V. Lord Kensington, 2 Kay ^ As to construction of antenuptial
& Jolins. 770 ; Peaehey, Mar. Settl. 565, settlements, see Sehouler, Hus. & Wife,
576; Sanderson y. Robinson, 6 Jones §361. Such settlements may renounce
Eq. 155; Love v. Graham, 25 Ala. 187 ; legal rights of the survivor in the estate
Walker v. Armstrong, 2 Jur. n. s. 962 ; of tiie spouse first dying. Ih. § 362.
Brown v. Bonner, 8 Leigh, 1 ; Cook v. Or provide for settling after-acquired
Team, 27 W. R. 212 ; Brown v. Brown, property. lb. § 364.
31 Gratt. 502; Russell's Appeal, 75 « Yeaton y. Yeaton, 4 111. App. 579;
Penn. St. 269. Correction made after Hafer v. Hafer, 33 Kan. 449. Such
the death of a spouse, in Burge v. reservations, however, as e. g. to dis-
Burge, 45 Ga. 301. pose by will, if made, must be re-
2 Pierce v. Pierce, 71 N. Y. 154 ; spected. Bishop v. Wall, 3 Ch. I). 194 ;
Daubenspeck v. Biggs, 71 Ind. 255; Rogers v. Cunningham, 51 Ga. 40;
Pond V. Skeen, 2 Lea, 126; Russell's Russell's Appeal, 75 Penn St. 269;
Appeal, 75 Penn. St. 269. Reynolds v. Brandon, 3 Ileisk. 59.3.
3 11 Lea, 489. There may be a power of disposi-
* Everitt v. Everitt, L. R. 10 Eq. tion in the wife to be exercised by a
405; Dillaye v. Greenough, 45 N. Y. will or otherwise provided, in such
438. settlement. Beardsley v. Hotchkiss,
262
CHAP. XIII.] ANTENUPTIAL SETTLEMENTS.
183 a
A court of law will recognize the legal title of a wife in her
property at the time of marriage, as continuing to exist against
the effect of coverture where there has been an appropriate
antenuptial agreement.^ And transactions after marriage based
upon such agreements are sustained in equity, at all events, if
legal remedies are inadequate.^
§ 183 a. Rescission or Avoidance of a Marriage Settlement. —
An antenuptial settlement made in good faith upon a valid
consideration is not to be rescinded by parol after the marriage.^
And the trust of the intended spouses in favor of their next of
kin who are volunteers is not revocable by them.* But deser-
tion without just cause, or unfaithfulness to the marriage obli-
gations, is held a bar to enforcement of the settlement by the
delinquent party .^ A positive antenuptial contract, it is held,
cannot be avoided by an arbitrary refusal of the man to marry ; ^
96 N. Y. 201. But such power must
not be defectively executed by her.
101 111. 242. One may thus be held
bound to claim no rights whatever in
the other spouse's estate as survivor.
Ludwig's Appeal, 101 Penn. St. 635;
61 Md. 436, 517 ; 22 W. Va. 130 ; Young
V. Hicks, 92 N. Y. 235; 139 Mass.
144; 109 111. 225; 63 Iowa, 55. A
resulting trust may be establislied in
investments protected to a wife by
such settlement. 39 Ohio St. 259.
And specific performance of the set-
tlement will be enforced as against
either spouse and third parties having
notice. Stratton v. Stratton, 58 N. H.
473.
As to breach and forfeiture of rights
under a settlement, see Schouler, Hus.
& Wife, § 368. Marriage settlements
are very common in England, among
parties possessed of large means ; not
generally so in this country, although
many are made in tlie Soutliern States
and elsewhere. The American policy
is to dispense with trusts, and place a
married woman's separate property in
her own absolute keeping. Yet mar-
riage settlements might often be well
resorted to in order to equalize the
burdens and privileges of matrimony,
while our local legislation remains in
its present crude condition. If settle-
ments of property are made to the
wife's separate use, the usual equitable
rules apply, as to making the property
liable for her debts and engagements.
The local registry system in the
United States raises questions of con-
structive notice, as to marriage settle-
ments and the property embraced there-
in. Schouler, Hus. & Wife, § 369. 66
Ga. 720 ; 75 Mo. 239.
1 Willard v. Dow, 54 Vt. 188. The
intended spouses may expressly agree
that the wife's acquisitions, &c., shall
be her separate estate. 82 Ky. 129.
2 Sanders v. Millers, 79 Ky. 517.
3 Craig V. Craig, 90 Ind. 215.
4 Paul V. Paul, 19 Ch. D. 47 ; 20
Ch. D. 742; overruling 15 Ch. D.
580.
As to their legal liabilities to oth-
ers, such as an antenuptial debt due
to the wife's creditor, see 75 Va.
380.
5 York V. Ferner, 59 Iowa, 587. Cf.
87 Mo. 437.
6 Conner v. Stanley, 65 Cal. 183. A
marriage settlement is to be construed
by the law existing at the time of its
execution. 73 Ga. 575.
263
§ 184 THE DOMESTIC RELATIONS. [PART II.
but where both man and woman mutually decide not to marry,
they may have the settlement broken up.^ A power of mu-
tual revocation is sometimes prudently reserved in a deed of
settlement.^
CHAPTER XIV.
POSTNUPTIAL SETTLEMENTS ; GIFTS AND GENEKAL TRANSACTIONS
BETWEEN SPOUSES.
§ 184. Postnuptial Settlements distinguished from Antenuptial ;
Gifts between Spouses. — The important distinction between
settlements before and settlements after marriage is that, while
the former have the marriage consideration to support them,
the latter are without it.^ The term " postnuj)tial settlements,"
then, must not confuse the reader's mind. We use the language
of the text-writers without meaning to imply that it is appro-
priate, or that antenuptial and postnuptial settlements consti-
tute two branches of one general subject. On the contrary,
postnuptial settlements are usually nothing more nor less than
gifts of real or personal property, or of both, between husband
and wife, which equity places, notwithstanding the disabilities
of coverture, upon the footing of other gifts.^ Furthermore, it
should be remembered that formal settlements made between
parties in the marriage state, in pursuance of articles or memo-
randa signed before marriage, are not technically postnuptial
settlements (as the name itself would seem to indicate) ; for
the settlement relates back to the antenuptial stipulations,
however loosely these may have been drawn up, and it is pro-
tected by the marriage consideration, like all other antenuptial
contracts.
1 Essery f. Cowland, 26 Ch. T>. 191. * " Gift," in the more technical sense,
2 Gaither v. Williams, 57 Md. 025. concerns personal property, but we use
3 Supra, § 172; Lannoy v. Duke of the word here in its wider sense. 2
Athol, 2 Atk. 448. Schouler, Pers. Prop. 55.
264
CHAP. XIV.] POSTNUPTIAL SETTLEMENTS. § 186
But though, for want of consideration, postnuptial settle-
ments are deemed voluntary, yet, like other voluntary trans-
actions, they will be valid and binding, so far as the parties
are concerned, and can only be impeached as fraudulent upon
others. Postnuptial settlements, therefore, must be viewed in
two different aspects : (1) as between the married parties and
the creditors or purchasers of either; (2) as between husban(J
and wife themselves. These we shall consider in order.
§ 185. Postnuptial Settlements as to Creditors and Pur-
chasers ; Statutes 13 Eliz. and 27 Eliz. — There are two English
statutes which control this subject, as concerns creditors and
purchasers, to a great extent, wherever the husband makes a
postnuptial settlement upon his wife and offspring. The first
is that of 13 Eliz. c. 5, in favor of creditors ; the second that
of 27 Eliz. c. 4, in favor of purchasers ; the one being directed
against fraudulent conveyances of all property with intent to
defeat or delay creditors ; the other against fraudulent or vol-
untary conveyances of lands designed to defeat subsequent
purchasers. These statutes, Lord Mansfield said, cannot receive
too liberal a construction or be too much extended in suppres-
sion of fraud.i The bankrupt acts are material to consider in
the former connection.
§ 186. Same Subject; Statute 13 Eliz. ; Bankrupt Acts. — As
to the first of these statutes, it is held that, if a man who is
indebted conveys property for the use of his wife and children,
or in trust for their benefit, such a conveyance is subject to the
statute prohibition, inasmuch as the consideration, although
good between the parties themselves, is not hona fide as regards
creditors.^ But a voluntary deed is good as against subsequent
creditors ; and there can be nothing inequitable in a man's
making a voluntary conveyance to a wife, child, or even a
stranger, if it be not at the time prejudicial to the rights of
third persons, or in furtherance of some design of future fraud
or injury to them.^ The question of fraudulent intent is the
1 Cowp. 434; Peachey, Mar. Settl. ' Hollo Wcay w. Millard, 1 Madd. 414;
189. Peachey, Mar. Settl. 192.
2 Goldsmith v. TJnssell, 5 Do G. M.
& G. 547 ; Peachey, Mar. Settl. 191.
265
§ 186 THE DOMESTIC RELATIONS. [PAET II.
real point at issue. And as to fraud upon future creditors, it
has been said that while an instrument might be executed with
the purpose of defrauding them, it is not a thing very likely to
happen.^ The property which may be recovered by creditors
does not embrace property which is exempt from execution ;
for the creditors have no concern with anything except assets,
actual or possible, for the payment of their debts.^ This was
formerly a matter of dispute ; but it is now apparently set at
rest.^
The statute of 13 Eliz. c. 5, is generally recognized through-
out the United States ; in some cases having been formally
re-enacted ; in others, claimed to be part of the common law
transported hither by the first settlers ; and hence gifts of
goods and chattels, as well as voluntary conveyances of lands,
by writing or otherwise, are void when made with intent to
delay, hinder, and defraud creditors, even though the gift or
conveyance be to wife and children.^ For it is a maxim, both
at the civil and common law, that the claims of justice shall
precede those of affection.^ And in general the rule appears to
be co-extensive with the fraud in this country as in England.
But it must be admitted the principle is not stated with equal
precision in all the States ; and while some cases doubtless pro-
ceed upon the doctrine that the voluntary gift fails because
there is an intent to hinder and defraud, others again seem to
rest upon the mere existence of actual creditors whose rights
are thereby impaired or prejudiced. It is not within our prov-
ince to treat of this subject in its general bearings, as in gifts
between man and man ; but so far as the American decisions
concern gifts between husband and wife, we shall presently give
1 Jenkyn v. Vaughan, 25 L. J. Eq. held insufficient in Mercer ex parte, 17
3.39 ; Holmes v. Penney, 3 Kay & Johns. Q. B. D. 200.
10".''. See furtlier, Schoiiler, Hiis. & * 2 Kent, Com. 440, 441, and cases
Wife, § 373, and cases cited ; Jac. 552 ; cited ; Bayard r. Hoffman, 4 Johns. Ch.
Peachey, Mar. Settl. 105 ; 1 Atk. 03 ; 450 ; Montgomery v. Tilley, 1 B. Monr.
Turnley v. Hooper, 2 Jur. n. s. 1081; 157; Reade r. Livingston, 3 Johns Cii.
French u. French, 6 De G. M. & G. 481; Pinney v. Fellows, 15 Vt. 525;
95. Simpson v. Graves, Riley Ch. 232 ; Sex-
'^ Peachey. Mar. Settl. 199 et seq. ; ton v. Wheaton, 8 Wheat. 229 ; 1 Am.
1 Story, Eq. Juris. § 410. See 2 Kent, Lead. Cas. 1.
Com. 443, «., 12th ed. ^ Cicero, de Off. L 14, cited in 2
3 Evidence of hindering creditors Kent, Com. 441.
266
CHAP. XIV.] POSTNUPTIAL SETTLEMENTS. § 186
the results somewhat at length.^ According to the modern cur-
rent of American authorities, mere indebtedness at the time of
a settlement is only presumptive proof of fraud, which may be
explained or rebutted ; and it must also be shown that the
husband was insolvent, or that the settlement directly tended
to impair the rights of creditors.^ The language of the statutes
in some States contributes to the confusion which prevails as
to the correct legal doctrine on this whole subject. Further-
more, our registry system places the law on a somewhat differ-
ent footing from that prevalent in England, in all settlements,
as we noticed in the preceding chapter.^
Voluntary settlements, in England, are likewise affected by
the bankrupt acts, which are intimately connected with the
statute of Elizabeth.* Here questions arise as to what acts
amount to a contemplation of bankruptcy, and what consti-
tute a fraudulent preference ; and these we need not here dis-
cuss. But it should be observed that the husband cannot
bestow his property upon his wife, conditional upon his future
bankruptcy or insolvency ; yet that third persons may, by vol-
untary conveyance, settle property to the wife's separate use,
free from all control of her husband ; or in trust to pay the
income to the husband for life, "or until he should become a
bankrupt," and after that to the wife's separate use.^ In the
former case the transaction would be simply an artifice of the
husband to evade the bankrupt laws ; in the latter, a third
person parts with his own property, and makes his own terms
as to its final disposition, as he has a right to do.^ Our national
bankruptcy system, as lately existing, also affected the doctrine
of fraudulent conveyances in the United States^ With the
Bankrupt Act repealed, however, this whole subject becomes
^ See 2 Kent, Com. 440 et seq. ; 4 ib. 5 Manning v. Chambers, 1 De G. &
463 et seq., where the subject is dis- Sni. 282; Sharp v. Cosserat, 20 Beav.
cussed at length, with citations from 473. Provisions for one's own children
American cases ; post, § 187, note, with are liable to this objection.
American citations as to creditors and ^ Ware v. Gardner, L. R. 7 Eq. 317.
purchasers ; Schouler, Has. & Wife, As to antenuptial provisions of this
§ 374. character, see Schouler, Has. & Wife,
2 Post, note, § 187. § 365.
8 Supra, § 183, n. 7 Re Alexander, 1 Lowell, 470. And
4 Peachey, Mar. Settl. 210 et seq. see Re Jones, 6 Diss. 68.
267
§ 187 THE DOMESTIC RELATIONS. [PART IT.
regulated by State insolvent laws, which are far from uniform
in their scope and purpose. As to artifices by a husband for
keeping his own property under his own control, subject to
its divestment in his wife's favor upon his bankruptcy, the
American rule, like the English, discountenances them.^
§ 187. Same Subject; Stat. 27 Eliz. — Settlements as con-
cerns the right of creditors and purchasers are also affected by
the statute of 27 Eliz. c. 4. This statute, too, is to be consid-
ered as part of the common law brought to this country by
our ancestors ; though not generally adopted here to the full
extent of the English equity decisions.^ It provides that all
conveyances of lands, made with the intent to defraud and
deceive purchasers, shall, as against them, be utterly void.
The statute has no application whatever to personal estate.^
The English doctrine is that a voluntary conveyance, though
for a meritorious purpose, shall be deemed to have been made
with fraudulent views, and must be set aside in favor of a
subsequent purchaser for a valuable consideration, even though
he had notice of the prior deed.'* In other words, while the
statute of 13 Eliz. permits a voluntary conveyance to stand as
against subsequent creditors, that of 27 Eliz. makes a voluntary
conveyance of land void as against a subsequent purchaser for
value. The principle on which the English cases rest appears
to be that, by selling the property over again for a valuable
consideration, the vendor so entirely repudiates the former
transaction and shows his intention to sell, that the presump-
tion against the prior gift becomes conclusive.^ And while the
correctness of this principle might well be doubted in its appli-
cation to subsequent purchasers with notice, yet, as Lord Tliur-
low said, so many estates stand upon the rule, that it cannot be
now shaken.^ This doctrine applies to postnuptial settlements
in England.'^ Fortunately in this country we have been ham-
1 Levering v. Heighe, 2 Md. Ch. * Doe v. Manning, 9 East, 59.
81 ; Head r. Halford, 5 Rich. Eq. 128; 5 Doe v. Rusham, 17 Q. B. 724; 16
Peigne v. Snowden, 1 Desaus. 591. Jur. 359.
2 4 Kent, Com. 46.3. ^ Evelyn v. Templar, 2 Bro. C. C.
8 Sugden, Vend. & Purch. 587, 13th 148; Peachey, Mar. Settl. 228, and
ed. ; Peachey, Mar. Settl. 226 ; 4 Kent, cases cited.
Com. 463. '' See Bill v. Cureton, 2 Myl. & K.
268
CHAP. XIV.] POSTNUPTIAL SETTLEMENTS. § 187
pered by no such severe construction of this statute. And in a
case before the Supreme Court of the United States it was held
that the principle of construction which prevailed in England
at the commencement of the American Eevolution went no
further than to hold the subsequent sale to be presumptive, and
not conclusive, evidence of a fraudulent intent in making the
prior voluntary conveyance ; and the court declined to follow
the subsequently established construction of Westminster Hall.^
And the better American doctrine seems to be that voluntary
conveyances of land, hona fide made, and not originally fraudu-
lent, are valid as against subsequent purchasers having record
or other notice.^ But a parol trust between husband and wife
in relation to land is of no effect against creditors of the hus-
band and purchasers without previous notice.^ And parol
language which might establish a resulting trust as between
spouses themselves, may be defeated as to creditors and pur^
chasers by conduct inconsistent with a gift.*
In some States the English statute is re-enacted with the
language essentially changed ; as in Connecticut and New York.
And it is the settled American doctrine that a hona fide pur-
chaser for value is protected, whether he purchases from a
fraudulent grantor or a fraudulent grantee ; and that there is
no difference in this respect between a deed to defraud subse-
quent creditors, and one to defraud subsequent purchasers ; both
being voidable only and not absolutely yoid.^ As to negotiable
instruments not overdue, too, the usual equity rule may apply,
which protects in general the rights of a hona fide holder for
consideration and without notice of adverse claim or fraudulent
510; Peachey, Mar. Settl. 232, 240. 3 Pagg v. Gillentine, 6 Lea, 240;
And Englisli conveyancers insert words Greenman v. Greenman, 107 III. 404.
importing certain valuable considera- ■* Evans v. Covington, 70 Ala. 440;
tions in such deeds, in order to deter Williams's Appeal, 106 Penn. St.
purchasers. 116.
1 Cathcart v. Robinson, 5 Pet. 280. ^ 4 Kent, Com. 464, and cases cited
2 4 Kent, Com. 464, n., and cases in notes; Anderson i'. Roberts, 18 Johns,
cited; Jackson v. Town, 4 Cow. 603; 515; Bean v. Smith, 2 Mason, 252;
Ricker v. Ham, 14 Mass. 139 ; Atkin- Eldred v. Drake, 43 Iowa, 569 ; Orien-
son V. Phillips, 1 Md. Ch. 507 ; Shepard tal Bank v. Haskins, 3 Met. 332. So
V. Pratt, 32 Iowa, 296 ; Beal v. Warren, the English Stat. 3 & 4 Will. IV. c. 27,
2 Gray, 447. But contra, see Clanton § 26, protects bona fide purchasers for
V. Burges, 2 Dev. Ch. 13. value.
269
187
THE DOMESTIC RELATIONS.
[part II.
intent.^ Property settled upon one's wife ought to be separated
from that retained, or so managed that the husband's creditors
1 Farmers' Bank v. Brooke, 40 Md.
249.
The following American cases may
be cited with reference to the effect of
a husband's postnuptial settlement as
against his creditors, &c. See supra,
§ 18(3. In several States it is expressly
held that a voluntary transfer or con-
veyance from husband to wife is valid
against all subsequent creditors and
purchasers. United States Bank v.
Ennis, Wright, 605; Beach v. White,
Walk. Ch. 495; Davis v. Herrick, 37
Me. 397; Story v. Marshall, 24 Tex.
305 ; Phillips v. Meyers, 82 111. 67. A
postnuptial settlement is not invalid, it
is recently declared by the Supreme
Court of the United States, if rights
of existing creditors be not impaired
and the settlement be not intended as
a cover to future schemes of fraud.
Clark V. Killian, 103 U. S. 766; Jones
V. Clifton, 101 U. S. 225. In New Jer-
sey, however, the rule as concisely
stated, is that tlie husband's settle-
ment, if voluntary, is fraudulent as
to existing debts by an inference of
law ; and as to subsequent debts, fraud
in fact must be proved. Annin v.
Annin, 24 N. J. Eq. 184; Belford v.
Crane, 1 C. E. Green, 265. This is
the doctrine in New York and many
other States, and indeed a fair one,
though the usual tendency is to regard
intent. Eeade v. Livingston, 3 Johns.
Cli. 481 ; supra § 186; Lyman v. Cess-
ford, 15 Iowa, 229. And Chancellor
Kent has ruled, in the leading Ameri-
can case on this subject, tliat if a set-
tlement after marriage be set aside by
the prior creditors, subsequent credit-
ors are entitled to come in and be paid
out of the proceeds of the settled es-
tate. Reade v. Livingston, 3 Johns.
Ch. 481. That intended fraud, and this
alone, should be considered, as to a
husband's subsequent creditors, in case
of his voluntary settlement for his wife
and children, see Mattingly v. Nye, 8
270
Wall. 370 ; Caswell v. Hill, 47 N. H,
407 ; Phillips v. Wooster, 36 N. Y. 412 ;
Place V. Rhem, 7 Bush, 585 ; Niller v.
Johnson, 27 Md. 6 ; Teller v. Bishop, 8
Minn. 22f3. The husband's condition
as to his creditors is to be regarded
with reference to the time he made the
settlement upon his wife, not with ref-
erence to the condition subsequently
of his estate upon his death. Leavitt
V. Leavitt, 47 N. H. 329. Concerning
the unfavorable effect of a secret agree-
ment between husband and wife upon
the rights of intervening creditors, ig-
norant of such agreement, see Hatch
V. Gray, 21 Iowa, 29; Annin v. Annin,
24 N. J. Eq. 184 ; Phelps v Morrison,
lb. 195. A husband's voluntary con-
veyance may, from its very substance,
be void as to all creditors, being an ar-
tifice to keep his property out of his
creditors' hands in case of future insol-
vency while using it in trade. Case v.
Phelps, 39 N. Y. 164; siipro, § 186.
Equity will regard, in cases of this sort,
the intent, notwitlistanding a compli-
ance with certain formalities of trans-
fer on the husband's part. Metropolitan
Bank v. Durant, 22 N. J. Eq. 35. Tliat
as to existing creditors, the husband's
intent to defraud should be considered,
which intent may be inferred from his
insolvency or embarrassment, see the
late cases of Redfield i\ Buck, 35 Conn.
328 ; Gardner v. Baker, 25 Iowa, 343 ;
Woolston's Appeal, 51 Penn. St. 452 ;
Bertrand v. Elder, 23 Ark. 494 ; Lloyd
1-. Fulton, 91 U. S. Supr. 479; Myers v.
King, 42 Md. 65.
Tiie right of a husband to settle the
sii "plus of property, over and above
what he then owes, for the benefit and
future comfort of wife and children, is
liberally considered in Gridley v. Wat-
son, 53 111. 1S6; Vance v. Smith, 2
Heisk. 343 ; Brookbank r. Kennard, 41
Ind. 339; White v. Bettis, 9 Heisk.
645. But even here it is proper that
abundant means for creditors sliould
CHAP. XIV.] POSTNUPTIAL SETTLEMENTS.
§188
shall not be misled into giving him credit in reliance upon the
property settled upon the wife.^
§ 188. Same Subject; Settlement upon Valuable Consideration,
&c. — There are instances in which a postnuptial settlement ]
has been sustained against creditors and purchasers on the]
ground that a valuable consideration is interposed.''^ Very slight'
or technical considerations are often held sufficient to support a
gift to the wife in English chancery.^ So voluntary settlements
may become valid by matter ex, post facto.^ If the property
was the wife's separate property, and so consistently treated,
the husband's creditors, of course, cannot reach it.^
In this country, as also in England, a voluntary settlement
by a husband upon his wife may become valid by matter sub-
be reserved, nor should such a settle-
ment be with a view of incurring debts
in the future. Allen v. Walt, 9 Heisk.
242.
For instances where a husband's
voluntary conveyance to his wife lias
been set aside as in fraud of creditors,
see Clarke v. McGeihan, 25 N. J. Eq.
423; Watson v. Riskamire, 45 Iowa,
2.31 ; Annin v. Annin, 24 N. J. Eq. 184.
See further, Davidson v. Lanier, 51
Ala. 318; Bowser v. Bowser, 82 Penn.
St. 57 ; Nippes's Appeal, 75 Penn. St.
472.
"Fraud," observes Mr. Justice
Swayne in a recent case, " is always a
question of fact with reference to the
intention of tlie grantor. Where there
is no fraud, there is no infirmity in the
deed. Every case depends upon its
circumstances and is to be carefully
scrutinized. But the vital question is
always the good faith of the transac-
tion. There is no other test." Lloyd
V. Fulton, 91 U. S. 479. In this case it
was held that the husband's prior in-
debtedness, apart from insolven(;y, &c.,
was only presumptive, and not conclu-
sive, proof of fraud, and that the pre-
sumption was open to explanation.
And see Patrick v. Patrick. 77 111.
555; Booker v. Worrill, 55 Ga. .3.32;
Kaufman v. Whitney, 50 Miss. 103.
Yet transfers to the wife of an insol-
vent debtor, and even purchases by
her, are justly regarded with suspi-
cion ; and consideration from her sep-
arate estate must be established by
affirmative proof. Si itz v. Mitchell, 94
U. S. Supr. 580; Kehr v. Smith, 20
Wall. .31.
As to a settlement in favor of minor
children, &c., see Schouler, Hus. &
Wife, § 378.
1 Moore v. Page, 111 U. S. 117.
2 Lord Hardwicke, in Ambl. 121.
See, further, M.acq. IIus. & Wife, 277 ;
8 Vern. 220 ; Ward v. Shallet, 2 Ves.
Sen. 17 ; Lavender v. Blackstone, 2
Lev. 147 ; Arundell v. Phipps, 10 Ves.
140.
3 Peachey, Mar. Settl. 233, 2.38
Butterfield v. Heath, 15 Beav. 414
Bayspoole v. Collins, L. R. 6 Ch. 228
Ex parte Fox, L. R. 1 Ch. D. 302
Schouler, Hus. & Wife, § 381.
* Peachey Mar. Settl. 286; 1 Sid.
133 ; Brown r. Carter, 5 Ves. 877.
5 Cs. 8, 9 ; 55 Vt. 3G2. The mod-
ern presumption often favored is that
the wife's money remains her own after
her liusband has taken it into his pos-
session, and that she has not given it to
him. Hileman v. Hileman, 85 Ind. 1.
His mere receipt of it is but slight, if
any, evidence of a gift, at all events.
McNally v. Weld, 30 Minn. 209.
271
§188
THE DOMESTIC RELATIONS.
[part II.
sequently arising.^ The rule is general that, where any mar-
riase settlement is for a valuable consideration, it cannot be
avoided as fraudulent upon the creditors, unless both husband
and wife were cognizant of the fraud ; her position here being
the usual one of lona fide purchaser for value.^ And in numer-
ous instances the equity courts of various States have sustained
a postnuptial gift or transaction in the wife's favor and against
the husband's creditors, on the ground that a valuable considera-
tion was interposed.^
1 4 Kent, Com. 463; Sterry v. Ar-
den, 1 Johns. Ch. 261 ; Huston v. Can-
trill, 11 Leigh, 136.
2 Magniac v. Thompson, 7 Pet. 348 ;
4 Kent, Com. 463. Tiie connection be-
tween prior and subsequent, so as to
sustain the consideration, should be
shown. Cheatham v. Hess, 2 Tenn.
Ch. 763.
3 As where the husband has trans-
ferred property to his wife in consider-
ation of payment from her separate
estate. Simmons v. McElwain, 26
Barb. 420; Bullard v. Briggs, 7 Pick.
533 ; Ready v. Bragg, 1 Head, 511.
And see Teller v. Bishop, 8 Minn. 226 ;
Butterfield v. Stanton, 44 Miss. 15 ;
Randall v. Lunt, 51 Me 246 ; Reich v.
Reich, 26 Minn. 97 ; Mix r. Andes Ins.
Co., 16 N. Y. Supr. 397 And where he
conveys what her equity entitles her to
claim. Poindexter v. Jeffries, 15 Gratt.
363. And where he has appropriated
a like amount of his wife's property
without her consent. Wiley r. Gray,
36 Miss. 510. So where the wife pays
her husband's debts from her separate
earnings. Dygert v. Remerschneider,
39 Barb. 417. Or releases her dower
or homestead. Unger v. Price, 9 Md.
552 ; Randall v. Randall, 37 Mich. 563 ;
Randies v. Randies, 63 Ind. 93 ; Nalle
V. Lively, 15 Fla. 130 ; Payne v. Hutche-
son, 32 Gratt. 812 ; Garlick v. Strong,
3 Paige, 440; 46 Ark. 542; Hale v.
Plummer, 6 Ind. 121 ; Andrews v. An-
drews, 28 Ala. 432. Or lends to the firm
of which her husband is a member. 36
N. J. Eq. 380. Or, in general, releases
her interest in his property. Davis v.
272
Davis, 25 Gratt. 587. Or advances
money to the husband to buy land, even
though it be conditioned upon paying
and securing the money to her children.
Goff r. Rogers, 71 Ind. 459. Or where
the husband is indebted to her for rents
collected from her separate real estate.
Barker v. Morrill, 55 Ga. 332 ; Kauf-
man V. Whitney, 50 Miss. 103. Or
upon any debt due her. French v. Mot-
ley, 63 Me. 326 ; Brigham v. Fawcett,
42 Mich. 542; Lahr's Appeal, 90 Penn.
St. 507. Or a claim, generally, which
grows out of the husband's appropria-
tion of his wife's separate estate, if
founded on an agreement to refund.
Odend'hal v. Devlin, 48 Md. 439. See
also Johnston v. Gill, 27 Gratt. 587;
Thompson v. Feagin, 60 Ga. 82 ; Be-
dell's Appeal, 87 Penn. St. 510. But
not a claim for the husband's mere ap-
propriation, without any such agree-
ment to refund. Clark v. Rosenkrans,
31 N. J. Eq. 665. See also Rose v.
Brown, 11 W. Va. 122. And see
Schouler, Hus. & Wife, § 380; 76 Va.
758; 106 111. 36.
But where the consideration ad-
vanced by the wife is inadequate,
equity will never sustain tlie settle-
ment to the injury of creditors further
than to secure the repayment thereof,
and not always even to this extent;
especially if slie be privy, with her hus-
band, to a fraud upon otiiers. Hersch-
feldt V. George, 6 Mich. 456 ; Skill man
V. Skillman, 2 Beasl. 403 ; Farmers'
Bank v. Long, 7 Bush, 337; Den z;. York,
13Ircd. 206; Pusey v. Harper, 27 Penn.
St. 469; 2 Kent, Com. 174; William &
CHAP. XIV.] POSTNUPTIAL SETTLEMENTS. § 189
§ 189. Postnuptial Settlements as betw^een the Spouses. —
The effect of a postnuptial settlement, as between the parties
themselves, and independently of the rights of creditors and
purchasers, claims our further attention for this chapter. Al-
though a direct gift of property by the husband to the wife is
void at law, it will be sustained in equity, so far as they are
concerned and heirs and personal representatives and assigns.
In general, to constitute a voluntary gift between parties, it
must be complete, or courts of equity will not enforce it; and
not only must the intention to give clearly appear, but that
intention must have been executed.^ But the rule is more
favorable as to a cestui que trust claiming against his trustee ; ^
and it is thus perceived why, on general principles, the inter-
vention of a trustee is preferable to support such a settlement.
All voluntary conveyances, though void against creditors and
purchasers for value, are good against the grantor and those
claiming under him.-^
A voluntary promise does not constitute a perfect gift. IN" or
is a voluntary assignment, unaccompanied by other acts, more
effectual to confer a title on the donee than a mere agreement,
as it has been repeatedly held in equity.^ But there is some
difficulty in reconciling the authorities on this latter subject.^
It has been repeatedly held, in chancery courts of the United
States, that gifts of personal property or voluntary conveyances
of real estate from husband to wife are, as between themselves,
valid, and such is now the rule in most, but not all, of the
States ; the married women's acts in some jurisdictions creating
Mary College v. Powell, 12 Gratt. .372; Peachey, Mar. Settl. 245, 246: Meek
s?<pra, c. 12 ; Coates f. Gerlach, 44 Penn. v. Kettlewell, 1 Hare, 470; Kckewich
St. 43. But though the price be inad- v. Manning, 1 De G. M. & G. 192 ; Beech
equate, a gift may have been intended, v. Keep, 18 Beav. 289.
102 Penn. St. 59. 3 Bill v. Cureton, 2 Myl. & K. 510;
Statutory requirements, such as Doe v. Kusham, 17 Q. B. 724.
registry, may affect postnuptial settle- * Edwards >\ Jones, 1 M. & Cr. 228;
ments as to creditors. And see other Holloway v. Headington, 8 Sim. 324.
relative points, Schouler, Hus. & Wife, ^ See Bridge v. Bridge, 16 Beav.
§§ .380, .381. 321 ; McFaddyn v. Jcnkyns, 1 Hare,
1 Cotteen i;. Missing, 1 Madd. 176; 462; Peachey, Mar. Settl. 247, 248;
Kekewich v. Manning, 1 De G. M. & Penfold v. Mould, L. R. 4 Eq. 562 ;
G. 188. Schouler. Hus. & Wife, § .384 ; Fox v.
2 Ellison V. Ellison, 6 Ves. 662 ; Hawks, L. R. 13 Ch. D. 822.
18 273
189
THE DOMESTIC EELATIONS.
[part II.
a legal estate in the wife under such circumstances. The evi-
dence of intention should be clear and distinct in all such cases.^
There should be a clear irrevocable gift to a trustee for the
wife, or some positive act by the husband, by which he divests
himself of the property, and engages to hold it for the wife's
separate use.^
1 Borst V. Spelnian, 4 Comst. 284 ;
Coates V. Gerlafh,44 Penn. St. 43 ; Jen-
nings V. Davis, 31 Conn. 134 ; George
V. Spencer, 2 Md. CIi. 353 ; Reynolds
1). Lansford, 16 Tex. 286; Hunt v.
Johnson, 44 N. Y. 27 ; Sims v. Rickets,
3.3 Ind. 181; Kitchen v. Bedford, 13
Wall. 413 ; Campbell v. Galbreath, 12
Bush, 459.
^ But see Towle v. Towle, 114 Mass.
167.
It would appear to be the rule of
some States, that the gifts of a hus-
band require less proof than tlie gifts
of third persons. Deming v. Williams,
26 Conn. 226. In some States, how-
ever, the wife is put upon strict proof
as to all implied gifts. Gannard v-
Eslava,20 Ala. 733; Paschall i'. Hall,
5 Jones Eq. 108 ; Hollifield v. Wilkin-
son, 54 Ala. 275. The precise extent
to which the rule of a gift without a
trustee will be enforced depends
greatly upon the liberality of the mar-
ried women's legislation in any partic-
ular State. See Schoulcr, Hus. & Wife,
§ 385 ; Underbill i'. Morgan, 33 Conn.
105 ; Brown v. Brown, 23 Barb. 565 ;
Jennings v. Davis, 31 Conn. 134 ; Wil-
der V. Aldrich, 2 R. I. 518. But it is
said that a man cannot denude himself
of his marital rights in property which
the law vests in him by simply declar-
ing that it belongs to his wife. Wade
V. Cantrell, 1 Head, 346. For the prin-
ciples applicable to such gifts, see 2
Schouler, Pers. Prop. Part V. c. 2.
Thus the promissory note of a creditor
or other third party may thus be legally
transferred by the husband to his wife
under some of the married women's
acts ; and independently of such stat-
utes on equitable grounds. His volun-
tary settlement of choses or incorporeal
274
personalty upon her is good, prima
facie ; and this may include an assign-
ment of a claim due him. The hus-
band may make a gift to his wife if
depositing in some savings-bank on his
wife's separate account, by his acts
binding the bank to account to her.
Leasehold property may be assigned
to the wife by way of gift. Where
the husband gives corporeal property
there should be some visible change of
possession manifested ; and in gifts, as
of furniture, of that which remains in
the common dwelling-house, there may
be difficulty in establishing a transfer.
The Avife may be the grantor, under
due statutory formalities, of real estate
from her husband, or of real and per-
sonal property combined. Rents and
profits may be secured to her exclusive
beneficial use. But to prove the exe-
cuted gift, so as to establish a bona fide
transfer against the husband's cred-
itors, involves, of course, the greater
difHculty. See Schouler, Hus. & Wife,
§ 386. Oral gifts of land or its profits
are not favored, for they are opposed
to the statute of frauds. Williams v.
Walker, 9 Q. B. D. 576; Greenman
V. Greenman, 107 III. 404; 138 Mass.
540; 6 Lea, 240. See Cade v. Davis,
96 N. C. 139. But gifts of the wife's
earnings (if still the husband's), or of
any personal property of the husband,
are favored so long as creditors be not
prejudiced. Fisher v. Williams, 56 Vt.
586 ; Cummings v. Friedman, 65 Wis.
183; Armitage v. Mace, 96 N. Y. 538.
And such gifts of personalty may be
by parol. 85 Mo. 580.
A husband may make a valid gift
causa mortis to his wife. JSLirshall t>.
Jaquith, 134 Mass. 138.
But a gift from a husband to his
CHAP. XIV.] POSTNUPTIAL SETTLEMENTS. § 190
§190. The Same Subject. — But the circumstances under.
which the husband's transfer is made are always material.
Thus a husband might have placed his earnings or property
in his wife's hands for safe-keeping, and not as a gift to her,
in which case title to the fund should be respected accordingly
as between them ; or it might be regarded, perhaps, as bestowed
for their joint benefit or that of the whole family upon due
proof. Or the understanding might be that the transaction
was to stand upon mutual consideration' or by way of security.^
A gift of what modern policy inclines to treat as the wife's own
property which the law of coverture gave to the husband, ought
to be more favorably regarded than a gift of what clearly belongs
to the husband in his own right.
While instances of gifts or voluntary conveyances from hus-
band to wife are most commonly considered, gifts from wife to
husband are by no means rare. But in the latter instance
fraud or undue influence may be reasonably suspected ; and
transactions of this sort are scrutinized by the courts with
great care.^ Before the wife's separate use was established in
chancery, little or no occasion could arise for the wife to bestow
her personal property upon her husband, for the law sufficiently
bestowed it without her aid.
If husband and wife may transfer property to one another
wife of his real and personal property The husband's gift may be qualified
which is extravagant and exhaustive instead of absolute, as in other in-
of his estate, or wliere the wife is shown stances of gift. Jones v. Clifton, 101
to be of grossly immoral character, is U. S. Supr. 225.
not to be protected in equity. Warlick ^ Cruger v. Douglas, 4 Edw. Ch.
V. White, 86 N. C. 139. Nor property 433; Nedby v. Nedby, 11 E. L. & Eq.
of a husband whicli the wife invests 106; /?e Jones, 6 Biss. 68 ; Converses,
without his consent at all. 106 Penn. Converse, 9 Rich. Eq. 535 ; Stiles v.
St. 358. Nor is a settlement between Stiles, 14 Mich. 72 ; Hollis r. Francois,
husband and wife for the benefit of 5 Tex. 195 ; Wales v. Newbould, 9
some third person to whom the bus- Mich. 45. As to gifts and loans of the
band is under no legal or moral obli- wife's separate propert)' to her hus-
gation, regarded favorably. Pope v. band, including mortgages, see also
Shanklin, 79 Ky. 230. s^pra, § 155. Gifts of profits, income,
1 Marshall v. Crutwell, L. R. 20 Eq. and surplus, to the husband, where he
328; Adlard v. Adlard, 65 111. 212; long manages his wife's separate prop-
Edgerly v. Edgerly, 112 Mass 175; erty, are thus considered. See cs. 10,
Grain v. Shipman, 45 Conn. 572 ; Lin- 11 ; McLure v. Lancaster, 24 S. C.
ker ?•. Linker, 32 N. J. Eq. 174. See, 273.
further, Schouler, Hus. & Wife, § 388.
275
§ 191 THE DOMESTIC RELATIONS. [PART II.
without consideration, still more may they do so where the
consideration is valuable. All such provisions, even if made
without the intervention of a trustee, though void in law (inde-
pendently of suitable married women's acts), may be enforced
in equity if fairly made between the parties, and with no fraud-
ulent intent upon others concerned ; ^ a rule which, with partic-
ular force, sustains an indebted husband's provision in his wife's
favor, wholly or partially executed.^
The common-law requirement that trustees shall intervene in
conveyances or transfers between husband and wife no longer
prevails to any great extent, in England or the United States,
as a doctrine of equity.^ But trustees, or third persons by way
of a conduit of title, are always desirable ; and in some States
it is still a rule that the husband and wife can only contract
with one another through the intervention of third persons,*
and that they cannot convey directly to one another.
§ 191. General Transactions bet'ween Husband and Wife. —
In general, wherever a contract is just and reasonable of itself,
and would be good at law when made with trustees for the
wife, that contract will be sustained in equity, when made be-
tween husband and wife without the intervention of trustees,^
1 See supra, § 188. And see Crouse consideration. Sykes v. Chadwick, 18
V. Morse, 49 Iowa, 382 ; 6 Col. 543. Wall. 141 (a statute case) ; § 188.
2 The husband's note or bond to As to transfers out of all proportion
pay money in consideration that his to the consideration, and apparently
wife would live with him is not a good fraudulent, see Kelley v. Case, 18 Ilun,
consideration. Roberts v. Frisby, 38 472 ; Warren v. Ranney, 50 Vt. 65.3.
Tex. 219; Ximines v. Smith, 39 Tex. And for contracts of this kind, specifi-
49. Nor prior advances to the wife cally enforced, see Livingston v. Liv-
disconnected with the settlement, and ingston, 2 Johns. Ch. 537. There must
made without expectation of repay- be no extortion by the husband. 39
ment. Perkins v. Perkins, 1 Tenn. Ch. N. J. Eq 211.
537. But where the wife advances ^ jonpg ^. Clifton, 101 U. S. 225;
money to her husband as his creditor, Baddeley v. Baddelcj', 26 W. R. 850;
or the latter is indebted to her upon Thomas v. Harkness, 13 Bush, 23 ; 6
any valid consideration, a fair (ronvey- Col 543 ; 15 Neb. 4.J2.
ance or transfer may be made to adjust * McMullen v. McMullen, 10 Iowa,
or secure such liability. Kesner v. 412 ; Johnston v. Johnston, 1 Grant,
Trigg, 98 U. S. Supr. 50; Clough v. 468; Pike v. Baker, 53 111. Ifi3; Row-
Russell, 55 N. H. 279 ; Sims u. Rickets, land v. Plummer, 50 Ala. 182. See
85 Ind. 181 ; Schouler, Hus. & Wife, further, Schouler, Hus. & Wife, §§ 392,
§ 391, and cases cited. Releases of 393, as to the rectification and constrnc-
dower in husband's lands may furnish tion of sucli settlements.
5 Wallingsford v. Allen, 10 Pet. 583;
276
CHAP. XIV.] POSTNUPTIAL SETTLEMENTS. § 192
notwithstanding that at common law spouses could not make
mutual contracts. 1 But as to a wife, her contract prejudicial to
her interests is still so unfavorably regarded, that a statute
must be explicit in order to bind her as to her executory con-
tracts or general engagements with her husband. The married
women's acts, as yet, seldom permit of a wife's executory con-
tracts with any one outside her separate estate or separate
trade.^ But whatever the law will compel parties to do, they
may do voluntarily ; and this is a principle applicable to trans-
actions as between husband and wife, so far as equity may
exercise jurisdiction in the case.^
§ 192. Transfer of Note from one Spouse to the Other; De-
posit ; Conveyance. — A wife is not legally liable, in the absence
of an enabling statute, upon a promissory note made by her,
payable to her husband's own order, and by him indorsed over.^
And the husband's note, given to his wife and transferred by
her, is equally void.^ A savings-bank deposit in the joint
names of husband and wife does not give the fund to the
wife alone.^
A conveyance, by husband and wife, of land belonging to the
wife, to a third person, and a conveyance of the same land by
2 Story, Eq. Juris. § 1204 ; Slanning v. ron v. Barron, 24 Vt. 375. See 78 Me.
Style, 3 P. Wms. 334 ; Barron v. Bar- 325.
ron, 24 Vt. 375; Resort'. Resor, 9 Ind. 2 Bassett r. Bassctt, 112 Mass. 99;
347 ; Coates v. Gerlach, 44 Penn. St. Hogan v. Hogan, 89 111. 427 ; Jenne v.
43; Wright v. Wright, 16 Iowa, 496; Marble, 37 Mich. 319. Some statutes
Williams v. MauU, 20 Ala. 721 ; Schaf- are e.xplicit enough for such purposes.
fer V. Reuter, 37 Barb. 44 ; Hutton v. Hamilton v. Hamilton, 89 111. 349.
Duey, 3 Barr, 100 ; Sims v. Rickets, And see Schouler, Hus. & Wife, § 394,
35 Ind. 181 ; McCampbell v. McCamp- and appendi.x.
bell, 2 Lea, 6G1; Myers v. King, 42 ^ See Campbell v. Galbreath, 12
Md. 65. Bush, 459; Randall v. Randall, 37
1 A mutual agreement, by which Mich. 563.
the wife renounces all further claim * Roby v. Phelon, 118 Mass. 541.
upon the husband for his services, or ^ Hoker i\ Boggs, 63 111. 161 ; Mor-
necessary support for herself, and stip- rison i: Thistle, 67 Mo. 596; Greer v.
ulates that she will contract no debts Greer, 24 Kan. 101 ; McCampbell v.
on his account, while the husband re- McCampbell, 2 Lea, 661 ; Ellsworth v.
nounces all claim for her services or Hopkins, 58 Vt. 705 ; Jacobs r. Miller,
support, affords a strong illustration. 50 Mich. 119; Bertie r. Nunan, 92 N.
This might not avail against creditors, Y. 152. This rule is now changed in
but so far as the husband and his heirs, many States. See Schouler, Hus. &
and in fact all who claim under him. Wife, § 396.
are concerned, it will be enforced. Bar- •> Schick v. Grote, 42 N. J. Eq. 852.
277
§ 193 THE DOMESTIC RELATIONS. [PART II.
such third person to the husband, vests the entire title in the
husband.^ But a conveyance of lands by the wife directly to
her husband, especially if it be voluntary, has been considered
ineffectual and void. So it is the older rule that the husband
cannot convey real estate to his wife directly, and without the
intervention of a trustee.'^ But the husband may make a valid
conveyance to his wife through the medium of a third person.^
The reason of this rule was the legal unity of husband and
wife at the common law ; while the statutes of uses furnished a
mode of conveyance through trustees.*
§ 193. Conveyances or Transfers to Husband and Wife ;
Effect. — It may here be added that, at the common law, a
conveyance of land to husband and wife and their heirs vests
the entirety in each of them ; and upon the death of one the
survivor takes the whole estate, discharged of the other's debts.^
The estate of entirety may be conveyed in fee or encumbered
by the joint deed of husband and wife.^ And in some States
legislation has abrogated this common-law doctrine of entirety
altogether.'^
Where a promissory note, too, or other evidence of a debt, or
personal security, is made payable to a husband and wife
jointly, it belongs to the survivor, and may be sued upon
accordingly ; but not if the facts are inconsistent with that
1 Merriam v. Harsen, 4 Edvv. Ch. tirety and the surviving spouse be-
70; Durant v. Kitchie, 4 Mason, 45; comes so)e tenant for life. Jones v.
Garvin v. Ingram, 10 Rich. Eq. 130; Potter, 89 N. C. 220. See 72 Ala.
Bowen v. Sebree, 2 Bush, 112. 689 ; 16 Lea, 448.
2 Voorhees ?^ Presbyterian Church, 6 McDuff v. Beauchanip, 50 Miss.
17 Barb. 103; Ransom v. Ransom, 30 531. See Insurance Co. v. Nelson, 103
Mich. 328. U. S. Supr 514.
3 Schouler, Hus. & Wife, § 307. '' And thus may the spouses be re-
Under some late local acts a wife may gardedas joint tenants or rather tenants
convey directly to her husband, or the in common Cooper v. Cooper, 76 111.
husband to the wife. lb. 57; Whittlesey v. Fuller, 11 Conn. 337 ;
« 1 Washb. Real Prop. 279. Clark r. Clark, 56 N. H. 105 ; Meeker
5 Wriglit V. Sadler, 20 N. Y. 320
Banton v. Campbell, 9 B. Monr. 587
Gilson V. Zimmerman, 12 Mo. 385
Wright, 76 N. Y. 262 ; Abshire v.
State, 53 Ind. 64 ; Sanford v. Sanford,
45 N. Y. 723 ; Jolmson v. Lusk, 6 Cold.
Schouler, Hus. & Wife, § 398, where 113. A conveyance to husband and
this subject is considered at length. So, wife may by its tenor give a fee to the
under a deed by hiisband and wife to a wife subject to the husband's life es-
son, reserving a life estate to them- tate. 75 Ind. 401.
selves, they hold the life estate by en-
278
CHAP. XIV.] POSTNUPTIAL SETTLEMENTS. § 195
presumption of joint-ownership which a technical expression
of this sort would afford ; and the drift of modern policy, we
may add, is unfavorable to extending to personalty this rule of
survivorship, applicable originally to real estate.^
§ 194. Questions of Resulting Trust between Husband and
Wife. — The question whether a resulting trust is established
in certain property of husband or wife comes up constantly in
the latest American cases, with the extension of equity juris-
diction in the States and the new married women's legislation.
Issues of this sort are made up not only where the claim is that
of a wife against her husband, or of a husband against his wife,
but in controversies between either one and the creditors of the
other. The decision must be according to the evidence adduced,
which is usually oral, deference being paid to the property sta-
tus of the spouse under modern legislation and to the usual
presumptions as between husband and wife ; but the ostensible
title afforded by instruments of title or security standing in the
name of the one is thus overthrown by proof that the property
actually belonged by right to the other.^ One spouse may have
intended a gift to the other ; or on the other hand to have pre-
served a pecuniary interest in the investment to the extent at
least that his or her independent property contributed to the
fund.^
Equity, in recognizing husband and wife as distinct persons
capable of contracting with one another and holding property
adverse to one another's claims, affords the relief appropriate to
such a situation. Where either one is false to the other, and
fraudulently or through coercion procures an unjust advantage,
chancery will relieve against the transaction.*
§ 195. Insurance upon Husband's Life. — Insurance is fre-
quently effected by a husband on his own life for the separate
1 Wait V. Bovee, 35 Mich. 425. As 3 See e. g. amonpr late cases, 54 Vt.
to joint investments by liusband and 36 ; 90 Ind. 167 ; 63 Cal. 12 ; 98 111.
wife, and their joint liabilities, see 544 ; 66 Ala. 55 ; 88 Mo. 229; § 119.
Schouler, Hus. & Wife, § 400. * Case v. Colter, 66 Ind. 336 ; Stone
2 See Schouler, Has. & Wife, § 400, v. Wood, 85 111 603; Tucker's Appeal,
and cases, where tliis subject is further 75 Penn. St. 354 ; Schouler, Hus. &
discussed. And see lb. § 401, as to pur- Wife, §§ 389, 403.
chases of one another's property.
279
§ 196 THE DOMESTIC RELATIONS. [PAET II.
benefit of bis wife ; a provision most just and honorable, if not
so unreasonable in amount, with its incidental payment of pre-
miums, as to defraud one's antecedent creditors ; ^ and local
statutes confirm the wife's beneficial interest in policies thus
taken out.^
CHAPTER XV.
DEATH OF THE WIFE; RIGHTS AND LIABILITIES OF THE SURVIV-
ING HUSBAND.
§ 196. Husband's Right to Administer. — On the death of the
wife, the husband becomes entitled to administer on her estate.
The court having jurisdiction in such matters must issue letters
to him, and to him alone, unless he renounce or decline. The
foundation of this claim has been variously stated ; by some it is
said to be derived from the statute 31 Edw. III., on the ground
of the husband's being " the next and most lawful friend " of his
wife ; while there are other authorities which insist that the
husband is entitled at common law, jure mariti, and indepen-
dently of the statutes. But this right, however founded, is now
regarded in England as unquestionable, and is expressly con-
firmed by the statute 29 Car. II. c. 3 (amendatory of statute
22 & 23 Car. II. c. 10), which enacts that the statute of distri-
butions "shall not extend to the estates oi femes covert that
shall die intestate, but that their husbands may demand and
have administration of their rights, credits, and other personal
estates, and recover and enjoy the same as they might have
done before the making of the said act." ^ This same right of
the husband is generally, though not universally, recognized in
1 Schouler, Hus. & Wife, § 404. may be assigned to himself or his cred-
Statutes affect this right in England itors. 69 N. H. 13. Nor can the wife
(Act 45 & 46 Vict. c. 75), and in nearly thus transfer it. 75 Ga. 755. But see
all of tlie States. 76. appendix. The 100 N. Y. 372. And see 85 N. Y. 593.
wife's interest cannot be revoked by the ^ Pullis r. Tiobison, 73 Mo 201.
party thus injured ; so that the benefit ^ Wms. Ex'rs, 4th Am. ed. 330 et seq.
280
CHAP. XV.] HUSBAND AS SURVIVOR. § 197
this country, and in the different States there are statutes
which regulate the subject of administration ; and these statutes
are usually found to recognize and confirm the husband's pre-
ferred right to administer upon his wife's estate.^
To this rule some exceptions have been introduced, however,
in later years, both in England and the United States, owing
chiefly to the modern facilities for separation and divorce, and
the enlarged capacity given to the wife to act as Q.feme sole, and
to dispose of her own property acquired during that condition
of things.^
Since, as we have already seen, the husband takes absolutely
his wife's personal choses in 2Jossession at the common law by
virtue of the marriage, and, if he be the survivor, her chattels
real likewise, there would generally appear to be no object
gained in seeking letters of administration on her estate, under
the coverture doctrine, unless she had choses in action unrecov-
ered at the time of her death. But a case might arise, besides,
where he had a just claim against her estate, and wished to
enforce it by a sale of her real estate as administrator. Or he
mig]it intend to prosecute a suit. Or letters of administration
might be desirable for the purposes of creditors. And peculiar
considerations apply sometimes, as we shall presently see, to
what we term the wife's separate property, even after her death.
Cases, moreover, in these days are found, where a husband is
-made the executor under his wife's will.^
§ 197. The Same Subject ; Assets for Wife's Debts. — There
is a common-law distinction between property acquired by the
husband absolutely by virtue of marriage, and property acquired
in his representative capacity as her administrator or executor.
1 2 Kent, Com. 135; Ih. 410. ministered property, when her death oc-
^ Thus, in a late English case, where curred during a state of separation for
a married woman lived separate from Ids misconduct, have been sometimes
her husband, after having obtained an denied. Cooper v. Maddox, 2 Sneed,
order of protection, and then died, 135. But the husband is not deprived
leaving him and a minor son, admin- of his right by mere separation short
istration was granted to a guardian of divorce. A statute, the wife's legal
elected by the son, upon proper secu- will, or his own express agreement must
rity, without citing the father. Goods usually be shown. Schouler, Execu-
of" Stephenson, L. R. 1 P. & D. 285. tors, §99.
And in tliis country the marital rights ^ Martin v. Foster, 38 Ala. 688. See
of the husband over the wife's unad- Schouler. Hus. & Wife, Part VIII. c. 5.
281
§ 198 THE DOMESTIC RELATIONS. [PART II.
The former is his own, free from all demands of his wife's cred-
itors. But the latter comes to him only by way of distribution,
after payment of all just debts against his wife's estate.^ In
the case of an antenuptial debt, he who married the woman
indebted became responsible under qualifications, ceasing to be
responsible, however, upon his wife's decease.^ Debts con-
tracted by the wife during marriage follow a somewhat differ-
ent rule at the common law ; for either they are the debts of the
husband or no legal debts at all ; ^ and if his debts, he must be
held responsible in his personal, and not a fiduciary capacity.
The modern change of policy with regard to a wife's debts,
whereby the wife may hold separate property upon which her
separate liabilities should be fastened, occasions an obvious de-
parture in the latest decisions and statutes. Hence the statute
rule now introduced into many States, that the husband shall
be held liable as administrator on the estate of his wife for her
debts, only to the extent of the assets received by him.*
§ 198. Surviving Husband's Rights in Wife's Personal Property.
— We have seen that at the common law, and conformably to
the doctrine of coverture, marriage operates as a gift to the hus-
band of the wife's personal property, both principal and income,
whether acquired by her before or during the marriage state ;
but with this qualification, that, so far as choses in action are
concerned, or incorporeal personalty, he must reduce to posses-
sion while marriage lasts, in order to make the property abso-
lutely his own.^ Hence clioses in action unrecovered at her death
1 A notable case in point is that of should be satisfied ; but that no claim
Heard v. Stamford, where a single could be enforced against the former
■woman contracted a debt for which she portion. Heard v. Stamford, Cas.
gave her promissory note of £50. She temp. Talb. 173 ; 3 P. Wms. 409 ;
afterwards married, and brought to her Macq. Hus. & Wife, 188. And see
husband a fortune of £700. On her Hetrick v. Hetrick, 13 Ind. 44 ; Don-
death it appeared that the husband nington r. Mitchell, 1 Green Ch. 243.
had acquired a portion of this fortune '^ Supra, §§ 56. 57.
during (.-overture ; the other portion ^ g^e Hill v. Goodrich, 46 N. H. 41 ;
was still outstanding at her death as a Bain v. Doran, 54 Penn. St. 124 ; supra,
c/ioxe in action, and could only be re- § 59.
covered by the late husband as her ad- * See N Y. Rev. Stat. vol. 2, p. 75;
ministrator. Lord Chancellor Talbot Schouler, Hus. & Wife, appendi.x.
decided that from the latter portion, ^ Schouler, Hus. & Wife, § 148.
after it had been recovered, the creditor
282
CHAP. XV.] HUSBAND AS SURVIVOR. § 198
belong, technically speaking, to her estate. The wife's earnings
were the husband's ; ^ and as to her chattels real, if he survived
her, they became his absolutely.^
In these days it becomes important to understand how far
the modern creation of a separate estate in the wife's favor may
have modified this doctrine to the husband's detriment. The
equitable rule, so familiar to England, has been that the sepa-j
rate use ceases with the marriage state ; so that, subject to the'
restrictions of a trust under which the wife might have acquired
any specific separate property, or her possible disposition of sep-
arate property during her lifetime (no clause of restraint imped-
ing her), the surviving husband became entitled to whatever
was left, under the rules and subject to the limitations of tlie
common law. That is to say, as to personal property, her cIloscs
in possession vested in him absolutely, and also her chattels real,
while choses in action might be recovered for his benefit in due
course of administration ^ The United States rule of equity
appears to have treated the separate estate as ceasing upon the
wife's death with similar consequences.* Generally speaking,
both in England and this country, the fact that a husband allows
his wife to treat and deal with, as her own, property acquired by
her independently of the married women's acts, is not inconsist-
ent with his intention to assert his marital rights to it if he sur-
vive ; neither, if he allows her to dispose of the income and loan
it on promissory notes running in her own name, would such in-
come become thereby converted into her separate estate.^ More-
over the married women's acts themselves, in the absence of
unequivocal language, do not change the common-law rule with
reference to separate personal property of a married woman, not
disposed of in her life nor by will ; but it goes to her surviving
husband by virtue of his marital rights in the same manner as
under the old law.^
By the English statutes of distribution, therefore (and per-
haps by the common law), not only is the husband entitled to
1 Scliouler, Hus. & Wife, § 148. ^ Ryder v. Hulse, 24 N. Y. 372.
2 Ih. § 164. 6 Kansom v. Nichols, 22 N. Y. 110;
3 lb. § lOG. And as to real estate, Wilkinson v. Wright, 6 B. Monr. 576;
see lb. § 196, and post, § 201. Brown v. Brown, 6 Humph. 127.
4 Supra, § 233.
283
§ 198 THE DOMESTIC RELATIONS. [PART II.
administer upon his wife's estate in preference to all others,
but, subject to the payment of such debts as bind him upon
surviving her, he recovers her outstanding personal property
to his own use and enjoyment, including rights vested and con-
tingent, and funds at her disposal during her lifetime or held
in trust for her, save so far as he may be excluded by the terms
of the trust. Even if he does not take out letters of adminis-
tration, he is equally entitled to the property.^ He is therefore
said, when he administers, to administer for his own benefit,
being the party in interest preferred to all others, so far as
personal estate is concerned. And since husband and wife are
not, properly speaking, next of kin to one another, the title the
husband thus acquires may be designated as a title jure mariti
under the statutes of distribution.^
But with the modern recognition of separate use, an exercise
of the wife's testamentary appointment or will may be found
to interfere with the husband's rights both as surviving admin-
istrator and distributee. Furthermore, the principle that the
husband administers exclusively for his own benefit on his wife's
estate is incompatible with the legislation of some States. For
in this country the modern tendency is not only to enlarge the
wife's power of testamentary disposition, but to require admin-
istration to be taken out in all cases where a married woman
with a separate estate dies intestate ; nor is the surviving hus-
band in all the States absolutely preferred to issue and other
kindred either as administrator or distributee.^
^ Clough V Bond, 6 Jur. 50. her lifetime, the right to collect the
2 2 Bl. Com. 615; Watt v. Watt, 3 fund passes to the husband as her ad-
Ves. 246, 247; 2 Kent, Com. 1.36; ministrator, and not to iier heirs. 5
Schouler, Hus. & Wife, §§ 409, 414, Lea, 585. See also Bartlett v. Bart-
and autliorities cited. Where a hus- lett, 137 Mass. 156.
hand tnkcs a policy of insurance on ^ Holmes v. Holmes. 28 Vt. 765;
his life for his wife's benefit, her pre- Schouler, Hus. & Wife, § 409 ; Cox v.
decense causes it to pass to him as her Morrow, 14 Ark. 603; Nelson v. Goree,
chose in action, and he may assign it 34 Ala. 565; Baldwin v. Carter, 17
to a second wife or keep it up for the Conn. 201 ; Curry v. Fulkinson, 14
benefit of his own estate. Olmstead Ohio, 100; Gill v. Woods, 81 111. 64;
V. Keyes, 85 N. Y. 593. See § 195. Wilson v Breeding, 50 Iowa, 629;
As to collecting a note held by his Woodman v. Woodman, 54 N. H.
late wife, see 131 Mass. 457. Where 226.
the late wife's land was converted into Postnuptial transactions between
personalty under judicial direction in husband and wife give rise to delicate
284
CHAP. XV.] HUSBAND AS SURVIVOR. § 199
§ 199. Husband's Obligation to bury "Wife : Rights Correspond-
ing. — Every husband is bound, at the common law, to bury his
deceased wife in a suitable manner ; that is to say, he is bound
to defray all necessary funeral expenses. Even when a wife
dies who had been living separate from her husband, it is held
that her surviving husband must provide her with a funeral at
a reasonable expense ; and if he neglects to do so, any person
who voluntarily employs an undertaker for that purpose, and
pays him for his services, is entitled to recover the sum thus
expended from the husband in an action at law.^ So, too,
where the wife died during the absence of her husband abroad,
so that it was necessary for another to superintend the funeral.^
And it is held that even an infant husband may contract for
the interment of his deceased wife, or lawful children, so as to
be bound by his contract. The contract will have validity,'
because it is a contract for the burial of those who are pcrsonce \
coiijvMctce with him by reason of the marriage, and as such it is /
to be regarded as a contract for his own personal benefit.^ ^
These points were decided in England, and it is believed that
a similar rule prevails in most, if not all of the States ; several
recent decisions in point confirming this opinion.^ As to the
further question, whether under the late married women's acts,
and our modern policy of conferring upon the wife a separate
estate, the husband's obligation binds him to such an expendi-
ture absolutely, so that he can neither make a claim on her
separate estate for reimbursement, nor take that separate estate,
discharged of all marital trusts, as his own, subject to the settle-
questions in the courts after the wife's Gill & .T. 349 ; Fowler v. Kell, 22 Miss,
death, where modern practice permits 68; 12 B. Mon. 3'.)1.
of an administration in contlict with i Ambrose v. Kenison, 4 E. L. &
the surviving Imshand's Interests. See Eq. 361 ; Bradshaw v. Beard, 12 C. B.
Schouler, llus & Wife, §411, and cases n. s. 314.
cited; Gill v. Woods, si 111. 64 ; Hus- ^ Jenkins v. Tucker, 1 H. Bl. 90.
ton V. Cone, 24 Oliio St. 11 ; Barrack 3 Chappie v. Cooper, 13 M. & W.
V. M'CuUoch, 3 Kay & J. 110; Her- 252.
rington v. Robertson, 71 N. Y. 280. ■* Smyley v. Reese, 53 Ala. 89 ; Sears
An antenuptial settlement properly v. Giddey, 41 Mich. 690; McCue v.
worded maj' exclude the husband's Garvey, 21 N. Y. Supr. 562; Cun-
right both to administer or to inherit; ningham r. Reardon, 98 Mass. 5.38;
but not a simple settlement for tlie Staples's Appeal, .52 Conn. 425; 41 N.J.
wife's benefit. Ward v. Thompson, 6 Eq. 2'J9.
285
§ 200
THE DOMESTIC RELATIONS.
[part n.
ment of just debts and charges, the burial expenses induded, we
cannot lay down with confidence at this stage. ^
§ 200. Death of Husband pending Settlement of Wife's Estate.
— Where the husband himself dies before the wife's outstanding
personal chattels are recovered, his next of kin will be entitled
to them in equity. This is the rule in England ; also in
America, wherever, at all events, the husband's right to admin-
ister for his own benefit is recognized ; for it is the necessary
consequence of that doctrine. In England a somewhat circuit-
ous course was formerly taken in such cases ; but tliis is done
no longer. If the husband dies, leaving assets of his wife un-
administered, the more rational rule has been that right of
administration follows the right of estate, and devolves upon
the husband's next of kin.^
1 That a husband is proximately
liable for his wife's funeral expenses,
and is bound to bury his wife, admits
now of no question. Even if an ailult
son assisted in giving orders to the un-
dertaker, this does not relieve the hus-
band. Sears v. Giddey, 41 Mich. 590.
Sm3'ley i\ Reese, 53 Ala. 89, inclines to
treat this obligation as one somewhat
like that of supplying necessaries, so
as to deny to tlie husband any credit
for such expenditure in the settlement
of his wife's estate. But see comments
in Schouler, Hus. & Wife, § 412; also
McCue V. Garvey, 21 N. Y. Supr. 562.
The effect of the wife's separate owner-
ship of property is considered in one or
two late cases. Under an Ohio stat-
ute a married woman's estate may be
charged with her funeral expenses,
even though a husband leaving prop-
erty should survive her. McClellan v.
Filson, 44 Ohio St. 184. The same ef-
fect has been given in English chan-
cery where tlie wife left separate
property. M'Myn Ee, 33 Ch. D. 575.
In further recognition of the hus-
band's paramount right in matters rela-
tive to his wife's burial, it is held in
Massachusetts that a husband who has
interred his wife in a public burial-
ground is not liable as a trespasser for
removing a gravestone, since placed at
286
her grave by her mother, without injur-
ing the stone, and for the purpose of
substituting another: Durell v. Hay-
ward, 9 Gray, 248 ; and that the right
of removing the remains is his. See
bill in equity in Weld v. Walker, 130
Mass. 423.
Certainly, where separation took
place under circumstances which
should render the husband liable for
his wife's subsequent support, he is
liable for her necessary funeral and
burial expenses also. Cunningham v.
Reardon, 98 Mass. 538. And see Scars
V. Giddey, 4! Mich. 590; Hodgson v.
Williamson, 42 L. T. 676. But how-
far the divorce laws may affect the
husband's obligation and right of burial
is not yet clearly determined. See
further," Schouler, Hus. & Wife, §§ 413,
414.
2 Roosevelt ?;. Ellithorp, 10 Paige,
415; Bryan v. Rooks, 25 Ga. 622
Ward ^.'Thompson, 6 Gill & J. 349
Patterson v. High, 8 Ired. Eq. 52
Schouler, Hus. & Wife, § 415 ; Fielder
V. Hanyer, 3 Hag P:cc. 770. But cf.
Bell, Hus. & Wife, 52.
In a late English (;ase the defendant
received money for a married woman,
and wrote to her that he held it at her
disposal. The wife died, and then the
husband, who had not interfered in the
CHAP. XV.] HUSBAND AS SURVIVOR. § 201
§ 201. Rights in Wife's Real Estate ; Tenancy by the Curtesy.
— The surviving husband's rights in the real estate of his de-
ceased wife remain to be noticed. The immediate effect of
coverture, as we have seen, is to invest the husband with the
usufruct of all real estate owned by the wife at the time of her
marriage, and of all such as may come to her during coverture ;
this usufruct being in the nature of a freehold, with beneficial
enjoyment of rents and profits, and lasting, at all events, during
their joint lives. ^
But the husband at the common law may acquire, upon a
certain condition, an enlarged life interest in his wife's lands,
and in estates of inheritance of which she was seised in pos-
session during coverture, so as to extend beyond her life if he
survives her ; in other words, he may be a tenant by the cur-
tesy. Tenancy by the courtesy, or tenancy by curtesy, is a
freehold estate in the husband for the term of his natural life.
He acquires it by the fact that a child capable of inheritance is
born of the marriage. The meaning of the term is somewhat
obscure. Some have thought the word " curtesy " signifies the
favor or courtesy with which the law regards the husband.
Others that it comes from the Latin word curtis, and has refer-
ence to the feudal custom which permitted the husband, as soon
as a son was born, to attend court as one of the pares curicc, and
do homage without his wife. But there is reason to believe that
tenancy by the curtesy existed in the civil law during the reign
of Constantine.2 This privilege of the husband extends to all
matter; and the wife's administratrix holds, part of the estate, but no fund
sued the defendant for money had and had been set apart for the payment of
received to the use of the wife. It was tlie wife's debt. It was held that ad-
held that the wife's administratrix, ministration of the unadministered ef-
rather than the husband's representa- fccts of tiie deceased couM not be taken
tive, could maintain the action. Fleet by the husband in his own right as a
V. Perrins, L. R. 4 Q. B. 500 ; s. c. L R. creditor, but only as a representative
3 Q. B. 536. But cf. Coleman v. Hallo- of his wife. Goods of Risdon, L. R. 1
well, 1 Jones Eq. 204. In another P. & D. 637.
Englisli case a female took administra- i Schouler, Hus. & Wife, §§ 167,
tion of the estate of a deceased person 181 ; supr-n, § 80.
as creditor, got in a large part of the ^ Washb. Real. Prop. 128, and au-
estate, and paid some of the ilebts ; she thorities cited; 2 Bl. Com. 126, and
afterwards married and died. The hus- notes by Chitty and others; 2 Bright,
band had taken possession of lease- Hus. & Wife, 116.
287
§ 202 THE DOMESTIC RELATIONS. [PART II.
lands and tenements of which the wife was seised at any time
during coverture, whether legal or trust estate, whether in fee-
simple or by way of remainder or reversion.^ The common
law affords herein a rare but positive instance of public policy
discriminating in favor of a marriage, accompanied by the
propagation of children.
§ 202. Tenancy by the Curtesy ; Subject continued. — Four
things are essential, at common law, to entitle a husband to
curtesy. First. A lawful marriage. Second. Seisin of the wife
at some time during coverture. Third. Birth alive of issue
capable of inheritance. Fourth. Death of the wife. After the
birth of the child the husband's title to curtesy becomes possi-
ble ; and the curtesy is then initiate. After the death of the
wife the title to curtesy becomes complete ; and the curtesy is
then consummate.^ For a full description of curtesy, with its
incidents, the reader is referred to elementary works on the law
of Eeal Estate.3
Questions concerning this estate are most commonly raised,
however, with reference to the second essential above stated.
Of late years tenancy by the curtesy has become practically
infrequent in England by reason of the prevalence of marriage
settlements excluding such right.* In this country it has ex-
isted in all of the older States, but is modified in some of them,
expressly or by implication, by late statutes. In Iowa and
Indiana, curtesy is expressly abolished, and a certain defined
interest in the wife's real estate, of the dower sort, goes to her
husband instead by way of inheritance. In Texas, California,
Louisiana, and other States where the tenure of real estate
comes from the community or civil law, rather than the common
law, curtesy is not recognized. In some of the States the right
of curtesy appears to be denied to husbands who wilfully neglect
and desert their wives. In most New England States, and in
^ 76. ; Co. Litt. 30 a ; lb. 20 a, n. 165 ; initiate is both salable and assignable.
Watts V. Ball, 1 P. Wms. 109. Briggs r. Titus, 13 R. 1. 130.
2 1 Washb. Real Prop. 130. * Williams, Real Prop. 187 ; 1
3 76. 127 et scq. ; Williams, Real Washb. Real Prop. 129. Such exclu-
Prop. 8th ed. 218; 4 Kent, Com. 27- sion by settlement should be plainly
35. And see Schouler, Hus. & Wife, expressed in order to debar the lius-
§§ 420-423. A tenancy by the curtesy band.
288
CHAP. XV.] HUSBAND AS SURVIVOR. § 203
various other parts of the country, tenancy by the curtesy is
expressly reserved by statute.^ It is decided that curtesy still
exists in New York, though doubts were at one time enter-
tained; and under statute qualifications, or independently of
them, curtesy obtains in perhaps the majority of States. In-
deed, curtesy consummate, under the married women's acts, is
found protected, notwithstanding the husband's usufruct during
his wife's life is taken away or modified.^ In some States under
the latest codes the interest of the husband in his deceased
wife's real estate is an absolute one in fee ; ^ or curtesy is
conferred regardless of the birth of a child.*
§ 203. Husband's Claims against Wife's Real Estate; Improve-
ments, &c. — Inasmuch as the husband's interest in his wife's
lands is limited to the usufruct as a life-tenant, and Anglo-
Saxon policy has been that landed property should descend to
one's blood relations, it follows that all claims presented by him
against her real estate, after her death, in relation to such prop-
erty, will be closely scrutinized. Thus it has been held that he
cannot claim reimbursement for moneys paid in settling contro-
versies in regard to the title of his wife's real estate.^ So the
general rule is strict as regards improvements made by the
husband upon his wife's real estate.*'
1 See statutes of different States ^ The English doctrine is, that if the
cited in 1 Washb. Real Prop. 258, and Imsband erects buildings upon his
note ; and notes to 4 Kent, Com. 34. wife's lands, or otherwise makes per-
Statute provisions as to curtesy and manent improvements thereon, expend-
dower are frequently alike. And see ing his own money for sucli purpose,
Schouler, Hus. & Wife, § 424, and ap- the presumption is that he intended the
pendix, for changes, some of wliich (as expense for his wife's benefit, and he
in Massachusetts for instance) are very cannot recover for it. 1 Roper, Hus. &
recent. Wife, 54; Campion i\ Cotton, 17 Ves.
2 Porch V. Fries, 3 C. E. Green, 204 ; 264 ; 1 Washb. Real Prop. 281. Sev-
Lynde v. McGregor, 13 Allen, 182. eral cases of this sort have come before
■^ Hooper i;. Howell, 52 Ga. 315; 1 our own courts quite recently, the
Washb. 129. claims being usually presented after
* 1 Washb. 129 ; Elliott v. Teal, 5 the wife's death ; and this principle has
Sawyer, 249. been rigidly applied, tliough doubtless
^ Campbell v. Wallace, 12 N. H. occasioning in some instances positive
362; Burleigh v. Coffin, 2 Fost. 118. hardship and wrong. Burleigh y. Cof-
And see Warren v. Jennison, 6 Gray, fin, 2 Fost. 118; White v. Hildreth, 32
559. But see 2 Story, Eq. Jur. § 1023 ; Vt. 265 ; Brevard v Jones, 50 Ala. 221 ;
Pitt V. Pitt, 1 Turn. & Russ. 180; Washburn r. Sproat, 16 Mass. 449. See,
Shrewsbury v. Shrewsbury, 1 Ves. Jr. also, Schouler, Hus. & Wife, § 425.
233 ; Jenness v. Robinson, 10 N. H. 218. Concerning the wills of married women,
19 289
§204
THE DOMESTIC RELATIONS.
[PAKT II.
CHAPTEE XVI.
DEATH OF THE HUSBAND; RIGHTS AND LIABILITIES OF THE
SURVIVING WIFE.
§ 204, "Widow's Right to Administer. — On the dissolution
of a marriage by the death of the husband, the widow is usually
selected to administer upon his estate, provided she be willing
and competent to take the trust. But her right of administra-
tion on her husband's estate is not co-extensive with that of
the husband on her estate. For in the one instance the hus-
band is to be preferred to all others ; whereas, in the other,
administration may be granted by the court, at discretion, either
to the widow alone, or to the next of kin, or to both together.^
This is the law in England, and the same prevails generally in
this country, under the statutes of the different States.'^
the law of which is greatl\' affected by
recent stat-utes which tend to place hus-
band and wife on a mutual footing, and
enlarge the wife's capacity in equity
to make testamentary disposition of
her separate estate, see, at length,
Schouler, Hus. & Wife, §§ 467-470,
and appendix. So, too, as to a wife's
testamentary appointment in execution
of a power. lb. § 470. The husband's
assent has been an important element
in such cases until quite recently. Ih.
§ 468. And see Schouler, Wills, Part
II. c. 3.
The marriage of a woman was for-
merly deemed a revocation of her will
executed while single, while marriage
and the birth of a child was the rule
applied to a man. Recent statutes
tend to place the spouses on an equal
footing in this respect. Schouler, Hus.
& Wife, §§ 442, 467. And see Schou-
290
ler. Wills, §§ 424-426 ; 8 .Jarm. Wills,
6th Am. ed. 783.
1 1 Salk. 36 ; 11 Vin. Abr. 92 ; Anon.
Stra. 552; Macq. Hus. & Wife, 145;
Case of Williams, 3 Hag. Ecc. 217.
See Goods of Ihler, L. R. 3 P. & I). 50,
as to right of a widow, having lived
separate from her husband, to admin-
ister.
2 2 Kent, Com. 410, 411, and notes.
But by the New York Statute (vol. 2,
p. 74, Rev. Stats.), the widow and next
of kin are designated. Grant of ad-
ministration revoked, where it ap-
peared that the marriage under which
E. claimed to be widow was void.
O'Gara v. Eisenlohr, 38 N. Y. 296. And
see Mack v. State, 63 Ala. 138 ; Schou-
ler, Executors, §§ 99, 106, 126.
As to administration de bonis non of
the husband's estate, where the widow
took out administration, carried on her
CHAP. XVI.] SURVIVING WIFE'S RIGHTS. § 205
§ 205. "Widow's Distributive Share in Personalty. — Under
the English statute of distributions, 22 & 23 Car. II. c. 10, the
widow surviving her husband, who deceased intestate, is entitled
to one third of the personal property which remains after pay-
ment of the husband's debts, while the remaining two thirds
go to the children or their representatives.^ The widow's share
is not unfrequently termed her "thirds," or incorrectly her
" thirds of personal estate at common law." ^ The statute
further provides that when the husband dies intestate, leaving
a widow only and no lineal descendant, the widow is entitled
to a moiety, or half of his personal estate, and the other half
goes to the husband's next of kin. When there are no next of
kin, the widow is not entitled to the whole of her husband's
personal estate ; but one half belongs to her, and the other half
goes to the crown.^ Here, too, the wife's right is not co-equal
with that of her husband : for he surviving her takes the whole
of her personal estate ; while she surviving him cannot in any
event be entitled to more than one half of his personal estate,
even though the estate consisted wholly of property which be-
longed to her before marriage. It is held that the widow of a
deceased child cannot take as a representative of such child
under the statutes of distribution.* The husband and wife, by
a marriage settlement, may exclude one another from all bene-
fits by way of distribution in their respective estates, other
provisions having been substituted by way of recompense.^ In
this country the statute of Charles II. is at the basis of our
legislation regarding the estates of intestates, though modifica-
tions are frequently to be met with.^
It is held that a bequest to the wife by the husband, in full
late husband's business, and then died certain localities of England a different
intestate and insolvent, see Fairland v. rule prevails ; the local customs con-
Percy, 3 P. & D. 217. And see, gen- tinning in force. 2 Bl. Com. 518.
erally, Widgery v. Tepper, 5 Ch. D. * Price v. Strange, 6 Madd. 161.
516. 5 Earl of Buckinghamshire v. Drury,
1 2 Bl. Com. 515, 516. 2 Eden, 60.
2 See Lord Cottenham, in Gurley v. <> See 2 Kent, Cora. 11th ed. 427, 428,
Gurley, 6 CI. & Fin. 741 ; Macq. Hus. and notes ; Schouler. Has. & Wife,
& Wife, 146. § 427, and appendix, as to these changes
3 2 Bl. Com. 515, 516 ; 2 Kent, Com. in different States.
427 ; Cave v. Roberts, 8 Sim. 214. In
291
§ 207 THE DOMESTIC RELATIONS. [PART II.
of her legal claims, is no bar to her right to a distributive share
in a lapsed bequest.^ So acts of the husband during his life-
time, committed for the purpose of defrauding the wife of her
distributive share in his personal estate after his decease, have
been set aside in equity .^
§ 206. "Widow's Waiver of Provision of "Will. — The wife's
privilege is carried even farther in Massachusetts and various
other States, by a statute which permits the widow to waive a
provision made for her by her husband's will, and thereupon to
take such portion as the law would have given her had he died
intestate.^ But this privilege is accorded with some restrictions
as to the full amount to be allowed her.* The right on her part
becomes complete upon her formal renunciation of the provi-
sions under the will, without any surrender of property under
the will.^ But her election must be strictly made within the
time designated by statute.^ And it is to be inferred that the
right of election is personal to herself, and cannot be exercised
by her representatives or kindred after her deathJ
§ 207. Widow's Allowance. — Another liberal provision made
by the legislatures of some American States is that known as the
widow's allowance. This is a reasonable sum, such as the Court
of Probate may order, as necessaries to the widow for herself
and the family, or, if there be no widow, to the minor children.
The allowance is set apart as something superior to the claims
of general creditors, and is even preferred to the expenses of
administration, funeral, and last illness of the husband. The
1 Garthshore v. Chalie, 10 Yes. Jr. waiver under his wife's will. Schouler,
1. But see Wright v. Fearis, 3 Swanst. Hus. & Wife, § 206.
181. * Crozier's Appeal, 90 Penn. St.
2 Hays V. Henry, 1 Md. Ch. 337. 384; Register v. Hensley, 70 Mo. 189 ;
Cf. Padficid V. Padfield, 78 111. 16. And In re Wilber, 52 Wis. 295.
see Schouler, Hus. & Wife, § 428. ^ Register v. Hensley, 70 Mo. 189.
3 Mass. Stats. 1861, c. 164 ; Firth v. ^ Waterbury v. Netlierland, 6 Heisk.
Denny, 2 Allen, 468 ; Towle v. Swasey, 512. Here she had relied on the legal
106 Mass. 100. Similar statutes are in advice of the e.xecntor.
force in other States. White v. Dance, "^ So held in Crozier's Appeal, 90
63 111. 413; Stockton ?•. Wonley, 20 Penn. St. 384. Otherwise in Indiana.
Ohio St. 184; Arrington ;;. Dortch, 77 Bratney v. Curry, 33 Ind. 339. In
N. C. 367; Cummings v. Cummings, Massachusetts the right is treated as
51 Mo. 261. In some States the hus- personal to the widow.
band now has a corresponding right of
292
CHAP. XVI.] SURVIVING WIFE's RIGHTS. § 208
amount is at the discretion of the court ; and where the hus-
band has died insolvent, leaving few assets, it is not uncommon
for the whole of the personal property to be thus awarded to
the widow, whereby is afforded an expeditious means of settling
perplexing little estates.^
§ 208. Widow's Paraphernalia. — The widow's paraphernalia
is a species of property recognized at the common law, though
borrowed from the civilians. It consists of such articles of
wearing apparel, personal ornament, and personal convenience
as are suitable to a wife's rank and degree, and such as she con-
tinued to use during the marriage.^ The term paraphernalia is
derived from the Greeks, and transmitted to England through
the civil law. But while the wife's paraphernalia at the civil
law resembled what we call the wife's separate property, the
word itself has a more limited signification in England and
America, being confined to personal necessaries or ornaments,
and having no possible application to -real estate.^ The com-
mon-law doctrine of iiaraphcrnalia is this : that the suitable
ornaments and wearing apparel of a married woman, which she
had at the time of her marriage, or which come to her throuofh
her husband before or during coverture, remain his personal
property during his life, and he may sell and dispose of them
during his life ; but such as remain at the time of his death be-
long thenceforth to her absolutely as her paraphernalia.^ It
seems that he may even give them away while coverture lasts,
in the exercise of his marital rights. For the loss thereof the
^ Schouler, Hus. & Wife, § 4"0 ; and kept back from the dox. or fortune,
Schouler, Executors, §§ 448-457. She which she brought her husband. Macq.
may debar herself by marriage settle- Hus. & Wife, 152. " Dowry" may have
ment from asserting any such claim been the word intended by Blackstone.
against her husband's estate as well as See Schouler, Hus. & Wife, §§ 342, 343,
any distributive right. See § 188; cf. 431. In Re Harrall, 31 N. J. Eq. 101,
113 111. 461. the word "paraphernalia" appears to
2 2 Bl. Com. 430; Macq. Hus. & be used as synonymous with " separate
Wife, 147. estate," ornaments, &c.
^ Blackstone says the word signi- * Tipping v. Tipping, 1 P. Wms.
fied "something over and above her 730; 1 Rolle, 911, L. 35; Com. Dig.
dower;" whereas, as a late English Baron & Feme, Paraphernalia; Macq.
writer observes, it really meant some- Hus. & Wife, 147, 148 ; State v. Hays,
thingof her own, not surrendered by her 21 Ind. 288. See Rawson ?'. Pennsyl-
at her marriage ; something reserved vania R. R. Co., 48 N. Y. 212.
293
§ 208
THE DOMESTIC RELATIONS.
[part II.
wife cannot sue alone, but the husband sues as for his own
property.^ But he certainly cannot bequeath them to his wife ;
nor on principle dispose of them as donatio causa mortis?'
Parajjhernalia are therefore to be distinguished from the
wife's separate property, which we have considered, inasmuch
as her rights are perfected only when she becomes a widow ;
while the property is alienable, not by herself, but by her hus-
band during his life.^ Such gifts from the husband are further
to be distinguished from gifts bestowed solely upon the wife by
her father, or by a relative, or even by a stranger. For in tlie
latter instance they would be deemed gifts to her separate use ;
and then, if received with the husband's consent, neither he nor
his creditors could afterwards dispose of them.*
1 Hawkins v. Providence R., 119
Mass. 596 ; McCormick v. Penn. Cen-
tral R., 49 N. Y. 303.
2 2 Bl. Com. 436 ; Noye's Max. Ch.
49.
3 Cro. Car. -344 ; Com. Dig. Baron
& Feme, Paraphernalia. The parapher-
nalia differ also from the wife's pin-
money. Supra, § 160. Married wo-
men's acts may, of course, render the
wife's clothing, jewelry, &c., absolutely
her own. See supra, c. 10.
* 2 Story, Eq. Juris. 555. Mere or-
naments for a parlor are not to be
treated as paraphernal property. Gra-
ham V. Londonderry, 3 Atk. 393. Nor
can articles be claimed as such which
are, in fact, heirlooms. Calmady v.
Calmady, 11 Vin. Abr. 181, 182. But
a gold watch worn by the wife of one
who maintains a fair social position
may be treated as paraphernal. Tllex-
an V. Wilson, 43 Me. 186. A " neces-
sary bed " is paraphernal. See Com.
Dig. Baron & Feme, Paraphernalia.
Jewels purchased by the husband, and
worn by the wife with her other orna-
ments, it is said, become her parapher-
nalia, in absence of evidence to the con-
trary ; while family jewels, by merely
being worn by the wife, do not. Jcr-
voise V. Jervoise, 17 Beav. 566. Where
a piece of jewelry, in possession of the
husband at the time of marriage as an
294
heirloom, is greatly enhanced in value
by adding new diamonds, and is then
given to the wife to wear, though be-
queathed to his heirs, the rule, as laid
down by Lord Chancellor Macclesfield,
is to separate the new diamonds after
the husband's death, and bestow them
upon the widow as her paraphernalia,
leaving the Iieirs to enjoy the residue.
Calmady v. Calmady, 11 Vin. Abr. 181,
182. And the old books say that if
the husband delivers cloth to his wife
for her apparel, and dies before it is
made up, she shall have the cloth. 1
Kolle, 911, L. 35; Com. Dig. Baron &
Feme, Paraphernalia. The question
of value is not material in setting off
the widow's paraphenmlia, so long as
the articles are suitable to her degree.
lb.; Macq. Hus. & Wife, 148. And
while the modern cases which turn on
such questions are rare, especially in
this country, it cannot be doubted that
a liberal rule would at this day be
applied in the widow's favor.
As to personal ornaments, it seems
to be an important element in the title,
that the wife should be seen to wear
them at intervals. Particularly is this
true where the husband kept them in
his own possession, for otherwise it
might be said that he never gave them
to her. But it is enough to establish
her claim that he had allowed her to
CHAP. XVI.] SURVIVING WIFE'S RIGHTS. § 208
Paraphernalia would seem to be so far personal to the widow,
that, if not claimed by her during her lifetime, they cannot,
after her death, be demanded by her executor or administrator.
Accordingly, it is held that if the husband should bequeath
them to her for life, and then over, and she should make no
election to have them as her paraphernal goods, her represen-
tative after her decease would be excluded.^ But in a modern
English case, not only was the committee of the widow, being
a lunatic, permitted to elect in her stead while she remained
alive ; but upon her subsequent death, her next of kin were
allowed to come in and choose whether to take the parapher-
nalia or the benefits given her under her husband's will ; and,
upon their choice of the former, an order in chancery was made
accordingly.^
The wife's paraphernal property is subject to her husband's
debts during his life ; for in truth it is not then her property at
all.^ Nor can she maintain an indictment against any one who
steals it, while her husband is alive.* So, too, it is liable for
his debts after his death, when there is a deficiency of assets in
the administrator's hands.^ But even then her necessary cloth-
ing is protected ; for, in the words of an ancient judicial reso-
lution, " She ought not to be naked or exposed to shame and
cold."^ And in many of the United States there are at the
present day statutes which justly reserve to the widow, in any
event, necessaries in the house at the time of her husband's
death, and the ornaments and clothing of herself and children^
If a husband pawn his wife's paraphernalia as collateral secu-
rity for money borrowed, and give power to the lender to sell
for a sum certain during his absence, this will not be deemed
wear them on birtlidays or other suit- ^ 2 Bl. Com. 436 ; Macq. Hus. &
able occasions. Graham v. London- Wife, 147, 149 ; Snelson v. Corbet, 3
derry, 3 Atk 393. Atk. 369; Howard v. Menifee, 5 Pike,
1 Macq. Hus. & Wife, 150 ; Clarges 668; Ridout v. Earl of Plymouth, 2
?•. Albemarle, 2 Vern. 246 ; Com. Dig. Atk. 104.
Baron & Feme, Paraphernalia. ^ 1 Rolle, 911, L. 35, cited in Macq.
2 In re Hewson, 23 E. L. & Eq. Hus. & Wife, 147.
283. 7 See Mass. Gen. Stats, c. 96, §§ 4,
3 TUexan v. Wilson, 43 Me. 186 ; 1 5 ; Ginochio v. Porcella, 3 Bradf . Sur.
Bright, Hus. & Wife, 288. 277.
* State V. Hays, 21 Ind. 288.
295
§ 209 THE DOMESTIC RELATIONS. [PART II.
an absolute alienation but shall stand as a pledge redeemable
by the widow ; and if the husband have left sufficient to redeem
(after payment of all his debts), she is entitled, under the rules
of equity, to have the redemption money raised out of his per-
sonal estate.^ But creditors must first be satisfied in all cases ;
though the widow's right in respect to such property is superior
to that of any legatee of the husband.^
§ 209. Equity of Redemption and Exoneration in Mortgages.
— We have already observed that a wife may join with her
husband in executing a mortgage of her general real estate as
security for his debts, and that, if this mortgage be properly
foreclosed, and equities of redemption barred, her right to the
real estate is gone.^ We have also seen that the wife's separate
real estate may be thus encumbered.* Yet the courts have gone
as far as they consistently could in upholding the wife's title
under such circumstances, and in allowing her all the privi-
leges of a surety.^ In the first place, they favor her right to
the equity of redemption as against her husband ; in the second
place, they allow exoneration or reimbursement from her hus-
band's estate, after his death, where the assets prove sufficient
for that purpose.^
To the wife also belongs the right in equity to have her es-
tate exonerated out of her husband's personal and real assets.
This is known as the wife's equity of exoneration.'^
1 Graham v. Londonderry, 3 Atk. estate ; and her own gift of them is
393. In Be Harrall, -31 N. J. Eq. 101, valid as against the executor of such
this same rule is applied in equity to estate or her second husband. Grigsby
the guardian of a lunatic husband, wlio v. Breckenridge, 2 Bush, 480. See,
pawned the wife's jewels, while sane, to further, Schouler, Hus. & Wife, § 432,
pay his personal expenses, the lunatic's as to appropriating real estate to pay
estate being ample. Here the lunatic debts, before the paraphernalia can be
was still alive, which makes the case taken.
somewhat anomalous; though, semble, ^ See supra, § 94, and cases cited.
a wife's ornaments were here treated * SupTn, §§ 137, 152, and cases cited,
as her separate property. ^ As to these privileges, see supra,
2 lb. ; Tipping V. Tipping, 1 P. Wms. §§ 137, 152.
729 ; Ridout v. P^arl of Plymouth, 2 Atk. ^ See Ruscombe v. Hare, 6 Dow, 1 ;
104 ; Burton v. Pierpont, 2 P. Wms. 80. Jackson v. Innes, 1 Bli. 115. And see
And even though contingent assets Schouler, Hus. & Wife, § 434.
come to hand afterwards, the wife's ^ 2 Saund. 177 ; 1 Mod. 290 ; Robin-
claim is gone. lb. son v. Gee, 1 Ves. Sen. 252, per Lord
Letters written to a wife by a former Ilardwicke. See Schouler, Hus. &
husband belong to her and not to his Wife, §§ 274, 435. The principle is
296
CHAP. XVI.] SURVIVING WIFE's RIGHTS, § 211
§ 210. Controversies betv^een Administrator and Wido'w. —
Controversies between a widow and her husband's administrator
are not unfrequent ; and it is manifest tliat at the common law
the widow's situation with reference to personal property which
she had brought with her into the marriage state was often ex-
tremely hard. But equity protects restriction imposed on trust
funds for her benefit, even as against her own indiscreet conduct.-^
Nor are instances wanting where a widow's hasty, inconsiderate
and foolish acts with reference to property rights acquired by
her in her deceased husband's estate have been deemed inopera-
tive ; her distributive share and allowances being preserved for
her by the courts as against herself, so to speak.^
A widow must not intermeddle with her late husband's es-
tate, nor assume duties which properly devolve upon the execu-
tor or administrator.^ And when administratrix herself of her
husband's estate, she is expected to enjoy the usual rights and
assume the usual responsibilities pertaining to the office.*
§ 211. Widow's Obligation to bury Husband. — The common-
law obligation of the widow to bury her deceased husband rests
upon weaker foundations than the corresponding obligation of
the husband. In truth it seems somewhat inconsistent with
the doctrine of coverture ; for why, it may be asked, should a
woman answer for the indigence of one whose lawful privilege
it was to strip her of her own means of support ? Where the
husband leaves an estate, the funeral expenses are to be paid
by his executor or administrator, and not by his widow. This
is the rule both in England and America ; and it is doubtless
reasonable so far as it goes.° If the husband's estate is suili-
cient, it ought to bear the expense of his burial.
that the wife, when mortgaghig her ^ See Maull r. Vaughn, 4-5 Ala. 134 ;
property for her husband's debt, stands Canimack ?•. Lewis, 15 Wall. 64,3.
in the position of a surety, and there- ^ Keatingr. Condon, 68 Tenn. St. 75 ;
fore ma}' claim indemnity from the Leach c. Prebster, .35 Ind. 415.
principal for whose beneiit her security * See Ready v. Harnm, 40 Miss. 422 ;
was interposed. Fox v. Doherty, .30 Iowa, .334 ; Mose-
1 See e. g. Dunn r. Lancaster, 4 ley v. Rendell, L. R. 6 Q. B. 338.
Bush, 581 ; .34 N. J. Eq. 82; Allen v. ^ 2 Redf. Wills, 224 ; 2 Wms. Ex'rs,
Allen, 80 Ala. 180; Re Peacock's 871 ; Macq. Hus. & Wife, 183. But in
Trusts, L R. 10 Ch. D. 490 ; Schonler, an English case, decided not many years
Hus. & Wife, §§ 308, 437 ; s»/?ra, §§ 155, ago, the court seemed to regard this
194. subject somewhat differently, and in-
297
§212
THE DOMESTIC RELATIONS.
[part II.
§ 212. Effect of Husband's Death upon Wife's Contracts. —
Where a married woman contracts with authority from her
husband, and the husband dies suddenly, and in point of fact
before certain purchases were made on his credit, is his estate
liable, or is his widow ; or must the creditor bear the loss ?
The general rule undoubtedly is that the authority of an
attorney or agent expires with the principal. A dead man
can have no one acting by his name and authority. And
since the wife contracts only as her husband's agent at the
common law, her case would seem to fall within the general
doctrine.^
timated tliat husband and wife should
stand upon a like footing as regarded
tlie obligation of burying one another.
Here a widow, who was also an infant,
was held bound by her contract for the
expense of lier husband's interment.
The decision proceeded upon the inge-
nious doctrine, that, since a husband
ought to bury his wife and lawful
children, who are the personce conJnnctcB
witli him, as a matter of personal ben-
efit to himself, the wife should do tl)e
same by her husband, as a benefit and
comfort to herself ; and therefore that
tlie case comes within the rule of law
wiiich makes a contract good where the
infant is a gainer by it. Chappie v.
Cooper, 13 M. & \V. 252.
A woman who has paid the expenses
of her late husband's final illness and
funeral from her separate property,
may charge the same against liis es-
tate. McNally v. Weld, ^30 Minn. 200.
See statutory liability where the wife
receives the entire estate, in Green v.
Weever, 78 Ind. 494.
In Pennsylvania, where married
women are liable on their contracts for
" articles necessary for tlie support of
tlie family," a married woman is lield
liable on her contract for the funeral
expenses of a mother who lived in the
household and died without means.
Bair v. Robinson, 108 Penn. St. 247;
Parent and Cliild, post.
1 Such in fact was the ruling of the
court in Blades v. Free, where a man
298
who had some years cohabited with a
woman, who passed as his wife, left
her and her family in England, and
went into foreign parts, where he died.
Here it was held that the executor was
not bound to pay for necessaries sup-
plied to her after his death, although
before information of the event had
reached her. In this case, however,
there was only a (jiiosi widow, and
perhaps tlie court felt the stigma of an
illicit cohabitation. 9 B. & Cr. 167 ; 4
Man. & Ry. 282. But the precedent
proved a stumbling-block in the next
case of Smout v. Ilberry, 10 M. & W.
I. A man who had been in tlie habit
of dealing with a butcher for meat
supplied to his house went abroad,
and his wife, who remained at home,
continued the employment of the
butcher. Here it was held tliat she
was not personally liable for meat sup-
plied after her husband's death, and
purchased by her in good faith, sup-
posing him to be still alive. The prin-
ciple of tlie latter case seems to have
been that, although the autiiority had
expired, j'et the agent was not in
fault nor in the commission of any
fraud ; that tlic revo(!ation occurred by
act of God. But the loss liad to fall
somewhere ; so the court put it upon
the butcher. These seem to be the
only cases of importance on tliis sub-
ject in England ; and we find none in
this country to shed further light.
CHAP. XVI.] SURVIVCSIG WIFE's RIGHTS. § 213
The moderu inclination is clearly to relax somewhat the
rigid rule of the common law of agency, and to favor the
Eoman doctrine, which binds the principal or his estate in
respect to acts done in good faith by his agent before notice of
revocation.^
§ 213. The Widow's Dower. — Dower and curtesy had not,
perhaps, the same origin : they certainly had not, in aU respects,
the same incidents ; but both rights were known in England
from a very early period, and both have remained with very
little change down to a recent date in England and America.
Dower gave the widow only a life interest to the extent of one
third, while curtesy gave the surviving husband the full life
interest. But on the other hand, dower became absolute in the
widow when she outlived her husband, while curtesy, as we
have seen, never attached at all unless the husband outlived
his wife and was fortunate enough to have had a child by her
besides. So that in these respects the rights of husband and
wife, on the whole, if not equivalent, were nearly so. And as
the reader may have already inferred, the general rule as to
descent of real estate has been that, subject to the widow's
dower, the lands of a husband descend to his own heirs ; while,
subject to the surviving husband's curtesy, the lands of a
wife descend to her own heirs ; our policy being to preserve
real estate in the family, so to speak, of the respective parties
to a marriage, in default of issue capable of inheriting from
both.2
Dower is to be defined as that provision which the law makes
for a widow out of the lands or tenements of her husband. In
1 Story, Agency, §§ 488, 497, and been deserted by her husband ; also
notes, in yth edition. See Bradford, Schouler, Hus. & Wife, § 438. And
surrogate of New York city, in Gino- see Stinson v. Prescott, 1.5 Gray, 335;
Ohio r. Porceila, 3 Bradf. Sur. 277, in Sterling r. Potts, 2 South. 773; Smith
which this subject is ably discussed, v. Allen, 1 Lans. 101 ; Carter v. Wann,
though the case in question, upon a 45 Ala. 343 ; 59 Vt. 499.
close examination, appears to have de- As to rights of the widow affecting
aided little or nothing. This able settlement of her husband's estate, see,
lawyer evidently leans against the au- further, Schouler, Hus. & Wife, §§440-
thority of Blades v. Free, though he 442.
e.xpresses himself very guardedlj'. See ^ See 1 Washb. T?eal Prop. 127, 147 ;
to the same purport, Terry's Appeal, Jenks r. Langdon, 21 Ohio St. 362.
65 Penn. St. 344, where the wife had
299
§ 214 THE DOMESTIC RELATIONS. [PART II.
its technical sense the word relates to real estate only. It is
said to be given for her support and the nurture of her chil-
dren ; but it applies, in fact, whenever she is the survivor,
without reference to her actual circumstances as to means of
support or the burden of a family. Dower extends to all es-
tates of inheritance which the husband has held at any period
of the coverture in his own right, and which any issue of hers
might, if born, possibly inherit.^
The three essentials of dower nearly correspond with those of
curtesy ; birth of issue, as we have said, not being requisite.
They are marriage, seisin of the husband, and his death. But
a careful comparison of the two estates at the old law shows
some inequalities.^
§ 214. Homestead Rights. — The homestead may properly be
considered in connection with dower ; for although this right is
not strictly personal to married women, inasmuch as it exists
for the benefit of both wife and children, if not for the husband
besides, while he lives, it is an incumbrance upon the real
estate of the husband which is generally released by the wife
in connection with her dower. The homestead system is of
1 Co. Litt. 30 a ; 2 Bl. Com. loO; 1 In New York the widow can only
Washb. Real Prop. 146. claim her dower out of lands of which
2 As to dower, see, in general, 1 her husband died seised ; and such is
Washb. Real Prop. 154 et seq.; Schou- the rule of various other States as to
ler, Hus. & Wife, §§ 445-455. equitable estates at least, like an
While the law of dower has been equity of redemption. In several
gradually fading out of sight in Eng- States her interest is treated as some-
land, since the English Dower Act, 3 thing for the benefit of herself and chil-
& 4 Will. IV. c. 105, limiting the inter- dren jointly. ' In others, the " thirds"
est, it attains its fuller development in are dispensed with, and a different rate
this country. Curiously enough, most is fixed. And finally, the State of In-
of the modern cases on this subject are diana has set a good example, wiiicU
American. Our local statutes have other States have followed, of abolish-
very generally favored the widow's ing both curtesy and dower, and substi-
rights, and unless she has joined her tuting, in behalf of husband and wife,
husband in his conveyances during his an interest in fee in one another's real
life, or statutes restrain her rights, she estate, remaining at decease, on prin-
may usually assert the privilege at his ciples analogous to the descent and
death. But dower is found a great distribution of personal property of
inconvenience in an age wlien real intestates ; thus placing both sexes on
estate passes from hand to hand as an the mutual footing of justice, and treat-
article of commercial traffic ; and legis- ing lands and personal estate as sub-
latures show some disposition to get ject to corresponding rules. Scliouler,
rid of it entirely, together with curtesy. Hus. & Wife, § 455, and appendix.
300
CHAP. XVII.] SEPARATION AND DIVORCE. § 215
recent origin, is peculiar to our American States, and exists for
protection mainly against the husband's creditors. The policy
on which it rests — by no means a new one in our legislation
— is that a householder with a family shall always have a
place of shelter where legal process cannot reach him. While
open to some serious objections as concerns the rights of credi-
tors, the homestead system is to be warmly commended in
respect of the encouragement it affords to agriculture, and still
more as offering rewards for domestic fidelity.^
§ 2 14 a. Simultaneous Death of Husband and Wife ; Owner-
ship of Fund. — Where husband and wife die simultaneously,
or nearly so, and their personalty is found in one receptacle, to
which both had access, and nothing shows how much each con-
tributed to the fund, the modern inclination is to consider it as
owned by them in equal shares.^
CHAPTER XVII.
SEPARATION AND DIVORCE.
§215. Deed of Separation; General Doctrine. — Separation
is that anomalous condition of a married pair which involves a
cessation of domestic intercourse, while the impediments of
marriage continue. Either from choice or necessity, as the case
may be, they throw aside the strong safeguards of a home and
mutual companionship ; they forfeit their most solemn obliga-
tions to protect, love, and cherish through life ; they continue
united in form and divided in fact. The spirit of the contract,
all that dignifies and ennobles it, is gone ; but the letter re-
mains. Both parties submit, in some degree, at least, to the
degradation of public scandal ; they are cast loose upon the
world without the right to love and be loved again ; the
1 See 1 Washb. Real Prop. 4th ed. 2 Bergen v. Van Liew, 36 N. J. Eq.
342 et seq., where this system is detailed. 637.
301
§ 215 THE DOMESTIC RELATIONS. [PATIT H.
thought of kindling fresh flames at the altar of domestic hap-
piness is criminal ; and deprived of the comfort and support of
one another, finding in society at best but timid sympathy and
consolation, the moral character must be strong, and doubly so
must be that of the wife, that each may buffet with success
the tide which bears onward to destruction. Such a state of
things no public policy can safely favor; but the law some-
times permits it, if for no other reason than that an adequate
remedy is wanting to check or to prevent the evil ; and hence
it may be thought more expedient for the courts to enforce such
mutual contracts of the unhappy pair as mitigate their troubles,
than to dabble in a domestic quarrel and try to compel unwill-
ing companionships.
This we conceive to be the rightful position of the English
and American equity courts whenever they see fit to enforce
separation agreements. Some, to be sure, are disposed to carry
the argument further. Thus, recent English writers of much
repute refer to the fact that divorces from bed and board are
often granted in that country, and hence conclude that it is
reasonable for the married parties themselves to compromise
litigation, save court fees, and avoid public notoriety, and
therefore to agree to live apart, just as though the court had
entered a decree for that purpose.^ But this argument proves
too much ; for if marriage and divorce are matters for private
compromise, like ordinary contracts, why should not the dis-
contented pair, upon just cause, agree to unloose the yoke
altogether? Why should they not sometimes obtain divorce
from the bonds of matrimony by collusion and default, and
thus take the readiest means of avoiding scandalous and expen-
sive suits ? One shrinks from such conclusions. In fact,
divorce laws do not belong to the parties themselves, but to
the public; government guards the sanctity of marriage, just
as it demands the duty of allegiance; only that perhaps its
policy cannot be enforced in the one case as well as the other.
It is because marriage is not on the footing of ordinary con-
tracts, that husband and wife cannot, on principle, compromise,
1 Macq Hus. & Wife, 324 et seq. See also Jacob, n. to Roper, Hus. & Wife,
277 ; Peadiey, Mar. Settl. 647.
302
CHAP. XVII.] SEPARATION AND DIVORCE. § 216
arbitrate, or modify their relationship at pleasure. Further-
more, the above argument would seem to suggest that where
a complete divorce, instead of divorce from bed and board, is
attainable, deeds of separation would not hold good ; nor, again,
where parties separate for causes which do not even justify
divorce from bed and board ; neither of which positions is sus-
tained by the actual decisions.
§ 216. The Same Subject; English Rule — Lord Eldon was
of the opinion that a settlement by way of separate mainte-
nance, on a voluntary separation of husband and wife, was
against the policy of the law and void. The ground of his
opinion was that such settlements, creating a separate mainte-
nance by voluntary agreement between husband and wife, were
in their consequences destructive to the indissoluble nature and
the sanctity of the marriage contract ; and he considered the
question to be the gravest and most momentous to the public
interest that could fall under discussion in a court of justice.^
But in England final and complete dissolution of marriage was,
until quite recently, attainable only by act of Parliament. And
this method of procedure was found so difficult, expensive, and
uncertain, that parties who could not live peaceably together
were led to consider some lesser means of mitigating their mis-
fortune. To be sure the ecclesiastical courts awarded sentences
of divorce from bed and board; but these merely discharged
the parties from the duty of cohabitation, permitting them to
come together afterwards if they should so choose ; and there-
fore, as a writer observes, these sentences " did not often, it
must be owned, repay the pains bestowed in obtaining them." ^
The English ecclesiastical courts steadily refused, moreover, to
recognize separation deeds.'^ Such a policy seems, however, to
have turned husband and wife to their own devices for effecting
the same result, with less delay and annoyance, and in order
1 St. John I'. St. John, 11 Ves. 530. L. J. Eq. 425; Peachey, Mar. Settl.
See Mortimer v. Mortimer, 2 Hag. 620; H. v. W., 3 Kay & Jolins. 386,
Consist. Rep. 318; Legard v. Johnson, 387.
3 Ves. 352 ; Mercein v. People, 26 8 i Bish. Mar. & Div. 5th ed. § 634 ;
Wend. 77. Mortimer v. Mortimer, 2 Hag. Con.
2 Macq. Hus. & Wife, 326. See 310; Smith u. Smitli, 4 Hag. Ec. 609.
Hope V. Hope, 3 Jiir. n. s. 456; s. c. 26
303
§ 216 THE DOMESTIC EELATIONS. [PART II.
to adjust more completely those property arrangements which
never could be forgotten in their misery. Deeds of settlement,
trusts, and the intervention of the equity courts readily fur-
nished a plan of operations ; and the ubiquitous conveyancer
appeared once more upon the stage to open the way, through
subtle refinements, to freedom for discontented couples, and
emolument for himself.
After a prolonged struggle, and in spite of public policy, it is
therefore fully established at length in England, as a doctrine
of equity, that deeds of separation may and must, if properly
framed, be carried into execution by the courts.^ Tl^ey may
be enforced in the common-law courts indirectly through the
medium of covenants which are entered into between the hus-
band and trustees ; and in equity specific performance will be
decreed where the stipulations are not contrary to law nor in
contravention of public policy .^ An agreement between hus-
band and wife to live apart is, perhaps, void as against public
policy ; but the husband's covenant with a third party may be
valid and binding, although it originates in this unauthorized
state of separation and relates directly to it.^
It may seem strange that such an auxiliary agreement should
be enforced, while the principal agreement is held contrary to
the spirit and policy of the law. Lord Eldon, who strongly
opposed the whole doctrine on principle, said that if the ques-
tion were res integra, untouched by dictum or decision, he would
not have permitted such a covenant to be the foundation of a
suit in equity.* Sir William Grant appears to have been the
first to call attention to the inconsistency of the courts in this
respect ; and his remark has come down through the later
judges.^ Lord Eosslyn, however, hit upon the explanation that
an agreement for a separate provision between the husband and
wife alone is void, merely from the general incapacity of the
1 Wilson V. Wilson, 1 Ho. Lords Peachey, Mar. Settl. 621 ; Sanders v.
Cas. 538 ; 5 Ho. Lords Cas. 59 ; Peachey, Rodney, 16 Beav. 211; Warrender v.
Mar. Settl. 620, and cases cited; Macq. Warrender, 2 CI. & Fin. 488.
Hus. & Wife, 329. * Westmeath v. Westmeath, Jac.
2 Vansittart r. Vansittart, 2 De Gex 126 ; 2 Kent, Com. 176.
& Jones, 249. ^ See Jones v. Waite, 5 Bin p. 361 ;
3 Worrail v. Jacob, 8 Mer. 255; Frampton u. Frainpton, 4 Beav. 293.
304
CHAP. XVII.] SEPARATION AND DIVORCE. § 217
wife to contract ; ^ an explanation which, we submit, is quite
unsatisfactory. The true reason for the anomalous distinction
appears to be simply this : that contracts for separation are in
general void as against public policy, but that the courts saw
fit to let in exceptions so far as to enforce fair covenants.^
§ 217. The Same Subject; American Rule. — Deeds of sepa-
ration were never very coramou in the United States. And
there are at least three very good reasons why they should be
at this day less encouraged than in England. The first is that
our legislation strongly favors the separate control of married
women as to their own acquisitions, without the intervention of
trustees and formal deeds of settlement, thus dispensing with
the necessity of intricate property arrangements. The second
is that equity, ecclesiastical, and common-law functions are
usually blended in the same courts of final appeal, so that a
State is at liberty to adopt the precedents of the ecclesiastical
rather than the modern equity tribunals of England for its
guidance ; while an American court, on the other hand, could
not admit clearly the right of parties to declare terms of private
separation, without bringing confusion and uncertainty upon
its own divorce and matrimonial jurisdiction. The third is that
sentences of divorce have been procured in most of the United
States with great ease, moderate expense, and little publicity.
Early in this century, Chancellor Kent summed up authori-
ties which showed that a private separation was an illegal con-
tract, in these emphatic words : " Nothing can be clearer or
more sound than this conjugal doctrine." ^ Contrary to what
until quite lately was the rule in England, many of our States
have never directly sanctioned separation deeds at all. And
a recent North Carolina case distinctly maintains what ought
to and may yet become the pronounced American doctrine, —
that separation deeds are void as against law and public
policy.*
' Legard v. Jolinsnn, .3 Ves. Jr. 352. tliem after a dissolution of the mar-
See 2 Bi-i^lit, Hus. & Wife, 306, n. by riase. 9 V. D. 76 ; Fearon v. Ayles-
Jacol). ford, 12 Q. B. 1). 539.
' Under Englisli legislation, not only ^ 2 Kent, Com. 177 n.
are covenants in a separation deed en- * Collins (•. Collins, 1 Pliill. N. C.
forced, but the court has power to vary Eq. 153. An agreement between hus-
20 305
§ 218 THE DOMESTIC EELATIONS. [PAET II.
Nevertheless there are individual American cases, and nu-
merous ones, where separation deeds have been recognized so
far as to permit, and sometimes to require, parties to perform
such marital duties as were incumbent upon them, notwith-
standing the fact of separation.^ And the text-writer must still
further concede, however reluctantly, that out of a regard for
permitting married parties, who are resolved upon separation
without a divorce, to arrange decently for the maintenance of
wife and offspring, and for a just mutual disposition of property
rights, our courts are in the latest cases following the English
lead so as to sustain the enforcement of whatever covenants
might be pronounced fair in themselves on behalf of parties
separated or about to separate. Some of these cases sustain
such covenants upon a suggestion that, separation being inevi-
table, they are prepared to make the best of it, not conceding
the support of contracts calculated to favor a separation which
has not yet taken place or been fully decided upon.^ An un-
satisfactory distinction truly, nor one likely to afford a resting-
place ; as though this half countenance were not calculated of
itself to favor future separation ; and yet a legal distinction.
It seems to stop short of enforcing specific performance of a
written agreement for a separation deed, and to refuse direct
countenance to a stipulation that husband and wife shall live
apart in time to come.
§ 218. The Same Subject; -what Covenants are upheld. — An
indenture with the intervention of a trustee or trustees is in
band and wife, havii)g for its object a How. (N. Y.) Prac. 228; Deming v.
dissolution of the marriage, is contrary Williams, 26 Conn. 220; Chapman v.
to sound policy, and a note and mort- Gray, 8 Ga. 341.
gage executed in pursuance thereof is ^ Fox i'. Davis, 113 Mass. 255, per
void. Cross v. Cross, 58 N. H. 373. Endicott, J., and cases cited ; Hutton v.
1 1 Bisliop, Mar. & Div. § 639 et xeq. ; Hutton, 3 Barr, 100 ; Randall v. Kan-
Schouler, Hus. & Wife, § 473 ; Good- dall, 37 Mich. 503, per Cooley, C. J.,
rich r. Bryant, 4 Sneed, 325; McCub- Garver v. Miller, 16 Oliio St. 527;
bin V. Patterson, 16 Md. 179; Griffin v. Robertson r. Robertson, 25 Iowa, 350;
Banks, 37 N. Y. 621 ; Joyce v. McAvoy, Dutton v. Dutton, 30 Ind. 452. See a
31 Cal. 273; Walker (!. Stringfellow, 30 valid agreement of separation under
Tex. 570; Hitner's Appeal, 54 Perin. which the wife was to be paid quar-
St. 110; Loud V. Loud, 4 Bush, 453; terly sums in lieu of dower and all
Dutton I'. Dutton, 30 Ind. 452 ; McKee other claims upon lier husband's es-
V. Reynolds, 26 Iowa, 578; Walker v. tate. Carpenter v. Osborn, 102 N. Y.
Beal,' 3 Cliff. 155 ; Dupre v. Rein, 56 552.
306
CHAP. XVII.] SEPARATION AND DIVORCE. § 218
this country held the safer sort of instrument where separation
is contemplated, and such are the deeds usually drawn and
construed by our courts. It is desirable that the husband and
trustee mutually covenant together. But so considerably are
husband and wife now emancipated from the need of inter-
mediate parties, that a fair transaction of the present nature
has been sometimes sustained in certain States, where no
trustee at all was interposed.^ This cannot be afhrmed of all,
nor of most of the United States ; ^ nor can such a contract
ever prevail against the wife's interests where she, in such nego-
tiation and arrangements, does not appear to have acted with
perfect freedom and a perfect understanding of her individual
rights.^ Sometimes an agreement or bond to separate is exe-
cuted by husband and wife, accompanied by the conveyance of
property to a trustee for the use of the wife ; which latter,
however, is the instrument the court construes and upholds.*
Inasmuch, then, as separation deeds are not enforced either
in England or the United States, at the present day, without I
regard to the policy of stipulations or covenants in question,
the limit of judicial support may be drawn at the support of
provisions which, supposing separation inevitable, carry the ful-
filment of conjugal duties and rights after a reasonable and
becoming manner into that relation. For equity can only
sanction what is fair and beneficial ; and here cognizance is
taken, not of the separation, but of circumstances and a settle-
ment attending that state. The covenant or stipulation itself,
the whole settlement, must be free from exception and such as
equity might, under other instances of its jurisdiction, have
sustained.^ Where, therefore, the provision is for the benefit of
wife and children, as in providing suitable maintenance during
the separation, such a covenant or stipulation is to be highly
favored.^ Where an equitable and suitable division is made
1 In Randall v. Randall, .37 Midi. Stephenson r. Osborne, 41 Miss. 119;
56.3, a deed passed from husband to McKennan v. Pliillips, 6 Whart. 571.
wife, whose actual consideration was •* Switzery. Switzer, 26 Gratt. 574.
relinquishment of tlie right to suj)port * Keys v. KeVs, 11 Heisk. 425;
on her part. Dixon r. Dixon, 23 N. J. Eq. 316.
'^ Simpsons. Simpson, 4 Dana, 140 ; ^ Switzer v. Switzcr, 26 Gratt. 574.
Carter v. Carter, 14 Sni. & M. 69; « Fox v. Davis. 113 Mass. 255;
307
§ 218 THE DOMESTIC RELATIONS. [PART II.
of the property, whose benefits have been enjoyed during the
coverture, this, too, may well be upheld. ^ The spouse who
covenants to deliver up certain property to the other should
make that covenant as advantageous to the latter as was rea-
sonably intended.^ It is fair that a husband's covenant or
stipulation of proper allowance for the wife's support should
be accompanied by the trustee's covenant or stipulation of in-
demnity against his wife's debts.^ In respect of directly com-
pelling the married parties to live apart under their agreement,
separation deeds cannot be pronounced good upon any just con-
ception of public policy and the divorce laws;^ and especially
must this rule hold true where the compulsion sought is under
circumstances of separation not justifying a divorce.
The potential mingling of legal and illegal conditions in these
agreements, with the view of entering upon a status which of
itself is inconsistent with a due fulfilment of the moral and
legal duties of matrimony, occasions judicial confusion, which
is more likely to increase than decrease while separation deeds
are judicially recognized. But it is recently held in England
that if some covenants in such a deed are legal and proper,
while others are not, the former are enforceable by themselves.^
Ranrlall r. Kandall, 37 Mich. 563 ; Whether articles of separation can
Walker v. Walker, 9 Wall. 743. debar one from procuring a divorce
1 Cooley, C. J., in Randall v. Han- for cause, see Schouler, Hus. & Wife,
dall, 37 Mich. 563. §§ 476, 482 ; .Moore v. Moore, 12 P. D.
2 Thus it is held that a husband has l'»3. If separation never took place,
no right to retain copies of his wife's the deed is void. Hamilton v. Hector,
journals and diaries which lie, under a L. H. 13 Eq. 511. As to reconciliation
separation deed, has covenanted to de- after separation, see Schouler, Hus. &
liver up. Hamilton v. Hector, L. R. Wife, § 478.
13 Eq. 511. And see McAllister v. * Hamilton v. Hector, L. R. 13 Eq.
McAllister, 10 Ileisk. 34-5. 511.
3 Dupre V. Rein, 56 How. (N. Y.) While in many parts of the United
Prac. 228; Harshberger v. Alirer, 31 States is seen an increasing tendency
Gratt. 52 ; Reed i-. Reazley, 1 Blackf. to adopt the English theory concerning
97. Such a provision of indemnity, separation covenants, with, liowever,
though usual, is not essential. Smith more looseness as to the form such
V. Knowles, 2 Grant, 413. transactions shall take, the latest Eng-
* Warrender v. Warrender, 2 01. lish cases quite transcend the distinc-
& F. 488, 527, per Lord Brougham ; tions behind which our courts take
Brown v. Peck. 1 Eden, 140 ; McCrock- refuge, and the earlier dicta of their
lin V. McCrocklin, 2 B. Monr. 370; own Eldon and Brougham. Divorce
McKennan v. Phillips, 6 Whart. 571, being there regarded with less favor
per Gibson, C. J. than iu the United States, notwith-
308
CHAP. XVII.] SEPARATION AND DIVORCE.
§218
At all events, reconciliation and a renewal of cohabitation will
put an end to all provisions of a separation deed whose scope
relates to a state of separation merely.^ But a postnuptial
contract, made in consideration of the settlement of differences
standing the late statutes on the sub-
ject, trust deeds and voluntary
separation are, upon mature experi-
ence, treated as, on the whole, the
more decent and respectable method
for unhappy couples to adopt, tlian
that somewhat novel recourse to courts,
wliich brings a scandalous cause into
public controversy. See Peachey, Mar.
Settl. 647, 648. English policy, indeed,
in its inception is quite different from
American in this regard, a fact which
American jurists should bear well in
mind. And under legislation of date
much later than the divorce acts which
were copied from the United States,
separation deeds are plainly legalized.
Stat. 36 & 37 Vict., cited in Re Besant,
L. R. 11 Ch. D. 508. Thus, the cus-
tody of the offspring may now be dis-
tinctly provided for, as it would ap-
pear in an English deed of separation.
But at the same time, chancery, where
the child is made a ward of the court,
will protect the child's welfare. Re
Besant, L. R. 11 Ch. D. 508; Besant y.
Wood, L. R. 12 Ch. D. 605. See, fur-
ther, Schouler, Hus. & Wife, §§ 480-
482.
Upon still another point, namely, the
restitution of conjugal rights, the Eng-
lish chancery has, of late, departed
widely from its earlier precedents. In
Great Britain, where this suit for resti-
tution of conjugal rights has always
been permitted, it was formerly ruled
in the matrimonial courts, and seemed
to be the well-settled doctrine, that a
deed of separation afforded no bar to
such a suit whenever either party
chose to enforce the remedy ; and this,
even though the deed in terms forbade
such proceedings. 1 Bishop, Mar. & I)i v.
§ 634, and numerous cases cited. This
was in accordance with the first idea
that separation deeds might indirectly
be tolerated for their beneficial cove-
nants as concerned parties bent upon
separation, but not directly upheld.
That rule has changed ; for, as the
English statute now provides, a deed
of separation which contains a cove-
nant forbidding the suit for restitution
of conjugal riglits to be brought, will
bar such a suit. Marshall v. Marshall,
39 L. T. 640. And to one separated
spouse chancery will now grant an in-
junction, by virtue of such a covenant,
to restrain the other spouse from suing
for restitution of conjugal rights. Be-
sant V. Wood, L. R. 12 Ch. D. 605,
and cases cited. Under the English
divorce act of 20 & 21 Vict. c. 85,
suits for restitution of conjugal rights
are still permitted. 1 Bishop, Mar. &
Div. § 771. Compromise, too, of the
suit for restitution of conjugal rights
is permitted in England. Stanes v.
Stanes, L. R. 3 P. D. 42. There is
this fundamental distinction between
the English suit for divorce or judicial
separation, and the suit for restitution
of conjugal rights: that in the former
instance the chief object is to free
the petitioner in whole or in part from
the marriage obligations ; but in the
latter to control the other spouse so
as to compel once more an unwilling
cohabitation. See language of court
in Firebrace v. Firebrace, 39 L. T.
94. Restitution of conjugal rights
is a remedy unknown in the United-
States, where courts may finall}' part,
but cannot forcibly reunite, the sepa-
rated spouses. See Schouler, Hus. &
Wife, §§ 482, 483; 1 Bishop, Mar. &
Div. 5th ed. § 771. And see as to spe-
cific performance of an agreement to
separate, Gibbs v. Harding, L. R. 5
Ch. 336.
1 Nicol V. Nicol, 31 Ch. D. 624.
309
§ 219 THE DOMESTIC RELATIONS. [PART II.
which had caused a temporary separation, appears to be founded
on a valid consideration.^
§ 219. Abandonment; Rights of Deserted Wife. — Abandon-
ment by either spouse consists in leaving the other wilfully
and with the intention of causing their perpetual separation.
As to the right of the wife, when abandoned by her husband,
to earn, contract, sue, and be sued, to much the same effect as
a feme sole, while such abandonment actually lasts, the current
of American authority, legislative and judicial alike, decidedly
favors so just a doctrine.^ Modern married women's acts often
permit the wife to do quite or nearly as much when not aban-
doned at all. And in England, recent statutes secure to a
married woman privileges to a similar extent under like cir-
cumstances of abandonment.^ The test is, observes a recent
American case, whether the husband may be deemed to have
renounced his marital rights and relations.*
The great contrariety of current legislation is a great obstruc-
tion, however, to formulating a decided rule of English and
American jurisprudence on this point. We have seen that, under
the old common-law doctrine of coverture, the wife could not
sue or be sued, or otherwise act as a single woman, unless the
husband was under the disability of a civil death, which meant
originally banishment and abjuration of the realm. The wife's
rights being enlarged by statute under such circumstances, we
have therefore to inquire into the scope of any statute in point.
Some of our local acts are construed as affording a substitute
for the common-law rule, and not as merely cumulative, and
1 Burkholder's Appeal, 105 Penn. women in such cases ; Peek v. Marling,
St. 31. See as to the offer by one 22 W. Va. 708; Phelps v. Walther, 78
party to return, Farber v. Farber, 64 Mo. 320', 78 Me. 215; 69 Iowa, 641.
Iowa, 362. ^ See Stat. 20 & 21 Viet. c. 85; Mid-
2 See Shaw, C. J., in Abbott v. Bay- land R. R. Co v. Pye, 10 C. B. n. s. 179.
ley, 6 Pick. 89 ; Benadum v. Pratt, 1 Chancery has long moulded its pro-
Ohio St. 403; Spier's Appeal, 2 Casey, ceedings to secure a like privilege. In
233; Mead v. Hughes, 15 Ala. 141; re Lancaster, 23 E. L. & Eq. 127;
Rhea v. Rhenner, 1 Pet. 105 ; Moore v. Johnson v. Kirkwood, 4 Dru. & War.
Stevenson, 27 Conn. 14; Schouler, Hus. 379. A right of action is conferred,
& Wife, § 486, citing numerous cases, too, under 33 & 34 Vict. c. 93. Moore
and appendix. And see the various v. Robinson, 27 W. R. 312.
statutes in almost every State in tiie * Ayer v. Warren, 47 Me. 217.
Union, enlarging the rights of married
310
CHAP. XVII.] SEPAKATION AND DIVORCE. § 220
hence require a literal interpretation. In general, such legisla-
tion is to be considered as grafted upon the common law of
coverture which prevailed when this country was settled, and
at the Revolution. It contemplates abandonment, and not
what might be designed as a merely temporary withdrawal from
cohabitation ; and it regards the husband in general as com-
pletely out of the jurisdiction of the State, never having entered
it, or else having forsaken it.^
§ 220. Divorce Legislation in General. — Divorce laws have
constantly given rise to most interesting and earnest discus-
sions ; and men differ very widely in their conclusions, while
all admit the subject to be of the most vital importance to the
peace of families and the welfare of nations. Some favor a
rigid divorce system as most conducive to the moral health of
the people ; others urge a lax system on the same grounds.
On two points only do English and American jurists seem to
agree : first, that the Government has the right to dissolve a
marriage during the lifetime of both parties, provided the
reasons are weighty ; second, that, unless those reasons are
weighty, husband and wife should be divorced only by the
hand of death.^
The ancient nations, all recognizing the necessity of some
divorce legislation, differed in their method of treatment.
Among the Greeks, despite their intellectual refinement, the
marriage institution was degraded, even in the palmiest days
of Athens. The husband could send away his wife, and the
wife could leave her husband ; the procedure in either case
being quite simple.^ In Eome more of the moral and religious
element prevailed ; and so strictly was marriage respected in
the days of the Eepublic, that no divorce is supposed to have
occurred for more than five hundred years from the foundation
of the city; and the earliest recorded instance may possibly
have been under the rightful head of void and voidable mar-
^ See, at length, Schouler, Hus. & ^ Upon divorce causes and divorce
Wife, § 486, and appendix. And as to procedure, see Scliouler, Hus. & Wife,
separate maintenance to a wife, see, Part IX. ; also Bishop, Mar. & Div., 2
further, Schouler, Hus. & Wife, §§ 485, vols, pasxim.
487. 2 Woolsey, Divorce Legislation, 31.
311
§ 220 THE DOMESTIC RELATIONS. [PAET U.
riage.^ But ancient Eonie was built on family discipline,
rather than domestic love ; the husband exercised full sway,
and the stately and severe Koman matron disappeared entirely
in the later dissolute and corrupt years of the Roman Empire,
and before an empire succeeded it.^ The ideal of marriage
among the Hebrews was high : that husband and wife should
cleave together and be one flesh ; nevertheless, the usage of this
nation, founded upon the Mosaic code, seems to have permitted
the husband to dismiss bis wife at pleasure. The Christian
influence and teaching has been to condemn all arbitrary exer-
cise of power in this respect, to place man and woman on more
nearly an equal footing, to discourage all lax and temporary
unions, and to warn the legislator that those whom God hath
joined man may not with impunity put asunder.^
The influence of Christianity has been felt in modern Europe,
spreadmg to England, whence, too, it was brought to the wilds
of America ; the Christian rule ever shaping the policy of
government. But this rule has received different methods of
interpretation. The Church of Eome treats marriage as a sacra-
ment, and indissoluble without a special dispensation, even for
adultery. Protestants are divided : all regarding adultery as a
sufficient source of divorce ; many considering desertion equally
so, others cruelty ; while a strong current of local authority in
this country tends to multiply the legal occasions for divorce
even down to such pretexts as incompatibility of temper. So
loose, indeed, and so confusing, is our State marriage and divorce
legislation becoming, that it might be well to ask whether the
cause of morality would not be promoted, if, by constitutional
amendment, the whole subject were placed in the control of
the general government ; so that, at least, one uniform system
could be applied, and the experiments of well-meaning reformers
be subjected to an unerring and crucial test.*
1 Spurius Carvilius Ruga, b c. 231, » Scliouler, Hus. & Wife, § 490.
put away his wife for barrenness. 1 * lb. % 490 a, wiiere tliis point is
Bisliop, Mar. & Div. § 23 ; Wooisey, dwelt upon at greater length. There
Div. 41. is a growing and dangerous laxity in
^ See the cause of Rome's decay, the United Statesas to the permanency
whicli Horace divines, in Carm. Lib. of the marriage relation. One diflSculty
iii. 6. is our universal tendency to greater
312
CHAP. XVII.] SEPARATION AND DIVORCE. § 220 a
§ 220 «. Legislation upon Divorce ; Divorce from Bed and
Board ; Divorce from Bond of Matrimony, &c. — Private agree-
ment for divorce is repugnant to the good sense of England and
the United States ; government must interpose to pronounce
the sentence ; and collusion between the parties to dissolve their
own relation is so little favored — however much the courts
may have reluctantly yielded to uphold deeds of mere separa-
tion 1 — that the divorce tribunal shields the public conscience
and requires that even in a default the complainant's case
be made out properly .^ The English di\orce act (Stat. 20 &
21 Vict. c. 85, § 7) places the whole subject since 1858, more
than formerly, upon the recognized American plane, by invest-
ing judicial tribunals with power competent to pronounce sen-
tence in each case conformably to general directions of the
statute. Divorce may, therefore, be granted from bed and board
{a mcnsa et thoro) or from the bonds of matrimony {a vinculo)
by the prevailing English and American practice. The former,
which is a sort of judicial separation, applies to the less heinous
offences, wherever a legislature recognizes the distinction ; while
the latter, which alone is complete, is the remedy for the greater
offences, or, according to the most conservative policy, for
adultery only. The one is partial divorce or a legalized separa-
tion ; the other is final and full divorce.^ Divorces nisi are
sometimes decreed, being in the nature of a partial and not
final divorce, so as to afford delay for remedying error or allow-
ing a last chance for reconciliation. The old ecclesiastical
remedy for restitution of conjugal rights, still available in Eng-
land, had never a foothold in the United States, the prejudice
being too strong against it ; specific performance of marriage is
consequently unenforceable even by way of penalty.*
social freedom, freedom as between the ^ Schoiiler, Ylns. & Wife, §§ 499,
sexes, woman herself pressing for it ; 500 ; 2 Bishf)p, §§ 235, 2ofi.
another the existence of some forty "'' Schouler, Hiis. & Wife. § 495.
independent jurisdictions, wliich en- Local codes should be carefully studied
able our citizens travelling from one on this point, as they differ in policy.
State to another to find facilities for Many causes for annulling a marriage
divorce and remarriage always at are in these days specified in local codes
hand. as causes of divorce. See supra, § 14.
1 Supra, § 215. « Schouler, Hns. & Wife, § 497.
313
§ 220 b THE DOMESTIC RELATIONS. [PART II.
§ 220 6. Causes of Divorce : Adultery ; Cruelty ; Desertion ;
Miscellaneous Causes. — We shall only briefly advert to the
chief causes of divorce recognized by our modern legislation.
Adulter 1/ is the cause of divorce most universally commended :
a plain offence, and one which involves conjugal unfaithfulness
at the most vital part of the marital relation. By adultery we
mean the voluntary sexual intercourse of either married party
with some one, married or single, of the opposite sex, other
than the offender's own spouse. Adultery justifies divorce from
bond of matrimony under most codes ; and while the English
statute has been somewhat partial to a husband who sins with-
out otherwise offending his wife or without atrocious accom-
paniments of the crime, American policy treats both sexes
alike, and visits the guilt of husband or wife alike.^ As for
cruelty, legal cruelty is more readily expounded by negative
than affirmative language. This cause of divorce is designed
regularly for the vindication of the weaker party, usually (but
not necessarily) a wife, whose wrong from her husband's cruelty
may be found greater, in the average of cases, than from his
silent infidelities. In general, it should be stated that wherever
the conduct of one spouse to the other is such that the latter
cannot continue cohabitation without reasonable ground for
fearing such bodily harm from the former as seriously to ob-
struct the exercise of marital duties, or render the conjugal
state unendurable, there legal cruelty exists, and cause for
divorce ; and from this point of view violence actually com-
mitted and violence threatened are treated as alike reprehen-
sible.'-' Desertion, or the wilful abandonment of one spouse by
1 Schouler, Hus. & Wife, §§ 504- of the extremity of cruelty ; e. </. " ex-
506, and cases cited; 1 Bishop, §§65, cesses," "outrages," "intolerable in-
66l'; 7 Mass. 474 ; 42 Mich. 267 ; Mor- dignities," &.c. And see such phrases
daunt V. Moncrieffe, L. R. 2 H. L. Sc. as "cruel and inhuman," "cruelty of
374 treatment," "extreme and repeated
2 Schouler, Hus. & Wife, § 507 et cruelty." &c.
sen., and numerous cases cited ; Evans In some States a husband who un-
V. Evans, 1 Hag. Con, 35; 1 Bishop, justly charges his wife with unchastity
Mar. & Div. §§ 715-717; Latham v. is guilty of such cruelty as entitles her
Latham, 30 Gratt. 307 ; 25 N. J. Eq. to a divorce. Bahn v. Balm, 62 Tex.
526 518 ; Avery v. Avery, 33 Kan. 1. And
Legislative enactments use various as to the wife's unjust charge, see 30
expressions, some of which stop short Kan. 712 ; 18 Nev. 49. Especially if
314
CHAP. XVII.] SEPARATION AND DIVORCE. § 202 h
•the other, was not a recognized cause of divorce under England's
ecclesiastical law, as promulgated at the settlement of this
country ; but the English divorce statute made it, when with-
out cause and extending over the space of two years, a third
cause for judicial separation; while meantime, in the United
States, where remedies for restitution of conjugal rights were
discarded, desertion for a specilied period has long been a per-
mitted cause for divorce ; perhaps for a limited divorce in the
first instance, and yet, quite commonly, as in the case of adul-
tery or cruelty, for a divorce ultimately if not immediately
from the bonds of matrimony.^ Three things are usually im-,
ported in this legal desertion : an actual cessation of cohabita-i
tion for the period specified ; the wilful intent of the absent |
spouse to desert ; desertion by that spouse against the will of
the other.2
As to the various other causes of divorce which are specified
from time to time by local statute, with much variety of verbal
expression, these are for the most part modifications of the three
chief ones we have just enumerated. For, with few exceptions,
all causes of divorce have one or more of the three leading \
elements present : there is adultery or cruelty or desertion ; or, /
to speak less literally, sexual infidelity, maltreatment, or the'
wilful cessation of marital intercourse. Thus, among offences
akin to adultery which are specified, are sodomy and bestial
crimes against nature, concubinage, and habitual loose intercourse
with persons of the opposite sex.^ Offering indignities to the
these accusations are publicly and ing language of local codes on this sub-
harshly made and repeated. 07 Tex. ject: "wilful desertion," " abandon-
198. Chastisement of the wife is nient,"" wilful absence," &c The time
cruelty, and certainly when repeated ; specified varies from one to five years;
but not such acts as laying his hand three years being perhaps tlie fair aver-
on her shoulder. 65 Md. 104; 21 Fla. age. See 11 P. D. Ill, as to neglect to
571 ; supra, § 44. comply with a decree of restitution.
As to masturbation, see 141 Mass. ^ Sergent v. Sergent, 3:^ N. J. Eq.
495. For cruelty by neglecting the 204; Latham c Latham, 31 Gratt. 307 ;
wife wantonly when she was critically Morrison v. Morrison, 20 Cal. 431.
ill, see 5(3 Mich. 50. There is no cause of divorce in which
^ Schouler, Hus. & Wife, §§515-523 the collusion of a disccmtented pair is
and cases cited; Pape v. Pape, 20 Q. more likely to prevail unless tlie court
B. D. 76 ; Act 20 and 21 Vict. c. 85, is quite circumspect than this alleged
§ 16 ; 1 Bishop, Mar. & Div. §§ 771- desertion.
775 ; 33 N. J. Eq. 363. Note the vary- » Schouler, Hus. & Wife, § 525 ;
315
§ 221 THE DOMESTIC RELATIONS. [PART II.
person of a spouse, conviction of felonious crime (which, besides
separation, visits disgrace upon the innocent), gross and con-
firmed habits of intoxication or habitual intemperance, gross
neglect of duty, abusive treatment, — all these are of tlie nature
of cruelty.^ Joining the Shakers (among whom the relation of
husband and wife is held unlawful), absenting one's self unrea-
sonably long, causes like these are in the nature of desertion ;
and insanity, withholding sexual intercourse, and various other
causes not clearly recognized as justifying divorce, are of a like
nature.^ But other miscellaneous causes of divorce may be
found specified in American codes : some mingling fraud and
other nullifying causes as grounds for a divorce; some again
permitting divorce to be granted at judicial discretion for any
other cause or upon general considerations of the peace and
morality of society, — a dangerous latitude should any court
choose to abuse its functions.^
§ 221. Effect of Absolute Divorce upon Property Rights. —
The effect of divorce from bonds of matrimony upon the prop-
erty rights of married parties is substantially that of death, or
rather annihilation. We speak here of hona fide and valid de-
crees of dissolution.^ And, save so far as a statute may divide
the property or restore to each what he or she had before, or a
Stevens v. Stevens, 8 R. I. 557 ; 10 Ire. of assailing the libellant's proof, is re-
506. crimination (since the party alleging a
1 Schouler, Hus. & Wife, § 526. wrong must come into court with clean
Pending an appeal from a conviction hands), condonation (or conditional for-
of a felony, tiie conviction cannot be givencss), connivance (or aiding and
urged as ground for divorce. Rivers v. abetting the offence, usually from cor-
Rivers, GO Iowa, 378. But actual im- ruptand sinister motives, so as to make
prisontnent for the statute period is a out a case for divorce). Cross-bills are
cause of divorce, notwithstanding a bill often filed, each party seeking divorce
of exceptions be filed. Cone v. Cone, for the other's fault. The husband's
58 N. H. 152. condonation of his wife's adultery does
2 S<;houler, Hus. & Wife, §§ 527, not debar her from divorce from him
528. In some instances it might be if he afterwards commits adultery.
hard to say whether cruelty or deser- Cumming v. Cumming, 1M5 Mass. 386.
tion is the stronger element. For the Scotch law of condonation, see
3 Schouler, Hus. & Wife. §§ 530, 531 ; Collins v. Collins, 9 App. Cas. 205.
1 Bishop, Mar. & Div. § 827 ; 31 Me. 590. As to connivance at a wife's adul-
For divorce procedure, see, at length, tery which debarred a divorce, see 136
Schouler, Hus. & Wife, §§ 533-556; Mass. 310.
2 Bishop, Mar. & Div. passim. Among * See invalid decree disregarded in
the permitted defences, besides that Cheely v. Clayton, 110 U. S. 701.
316
CHAP. XVII.] SEPARATION AND DIVORCE. § 221
decree for alimony may fasten directly upon the property in
question, the guilt or innocence of either spouse does not affect
the case.^ This is a topic upon which the common law, from
the infrequency of divorce, furnishes no light, except by analo-
gies. The settled usage of Parliament in granting divorce has
been to introduce property clauses to the above effect into the
sentence of dissolution regulating the rights and liabihties of
the respective parties,^ but even in these cases the rights of
divorced parties as to tenancy by the curtesy, chattels real, and
rents of the wife's lands, are still unsettled ; and in general, the
consequence by act of Parliament " does not very clearly ap-
pear." ^ But under the new English Divorce Act,* it is held in
a recent case that where the wife, at the date of the decree of
divorce a vinailo, was entitled to a reversionary interest in a
sum of stock which was not settled before her marriage, and
had been the subject of a postnuptial settlement, and after the
decree the fund fell into possession, her divorced husband had
no right to claim it.^ The English doctrine, as thus indicated,
is that the same consequences as to property must follow the
decree of dissolution by the divorce court as if the marriage
contract had been annihilated and the marriage tie severed on
that date. Such, too, has been the spirit of later decisions.^
In settlements and trusts involving intricate family arrange-
ments, however, the English rule is not yet uniform and
positive.'^
1 See Harvard College v. Head, 111 Fussell v. Dowding, L. R. 14 Eq. 421 ;
Mass. 209. Swift v. Wenman, L. R. 10 Eq. 15 ;
2 Macq. Hus. & Wife, 210, 214. Prole v. Soady, L. R. 3 Cli. 220. And
2 2 Bright, Hus. & Wife, 3f)6. one who obtained a sentence of disso-
* Stats. 20 & 21 Vict. c. 85 ; 21 & lution of marriage was held, moreover,
22 Vict. c. 108 ; 28 & 24 Vict. c. 144. not liable to be joined in an action for
* Says Vice-Chancellor Wood: tort committed by his wife during the
"Here the contract has been deter- coverture. Capel v. Powell, 17 C. B.
mined by a mode unknown to the old n. s. 74.3.
law, namely, by a decree of dissolu- "^ The most recent cases show a de-
tion ; and as the husband was unable, cided indisposition to forfeit a hus-
during tiie existence of the contract, to band's rights to a trust fund where, at
reduce this chattel into possession, I all events, the effect of annihilation
must hold that tlie property remained would be to disturb tlie remote right of
the property of the wife." Wilkinson some innocent party, or without consid-
V. Gibson, L. H. 4 Eq. 162. eration as to which spouse offended.
6 Pratt V. Jenner, L. R. 1 Ch. 493; Fitzgerald v. Chapman, L. K. 1 Ch. D.
317
§221
THE DOMESTIC RELATIONS.
[part II.
In this country the effect of divorce a vinculo is frequently
regulated by statute. And in general, and independently of
statute, all transfers of property actually executed before di-
vorce, whether in law or in fact, remain unaffected by the de-
cree. For instance, personal dioscs of the wife already reduced
to possession by the husband, remain his.^ But as to rights
dependent on marriage and not actually vested, a full divorce,
or the legal annihilation, ends them. This applies to curtesy,
dower, the right to reduce choses into possession, rights of ad-
ministration, and property rights under the statutes of distri-
bution.2 These doctrines are set forth in local codes, which
frequently save certain rights, such as the wife's dower where
divorce is occasioned by her husband's misconduct. And a pro-
vision under an antenuptial contract, which is plainly intended
as a substitute or equivalent for dower in case the wife survives
the husband, is barred by their divorce.^
As to torts a similar rule would probably apply.* Separate
563. Jessel, M. R., here discredits Fas-
sell V. Dovvding, and other cases cited
supra. And see Burton ii. Sturgeon,
L. R. 2 Ch. D. 318; Codrington v. Cod-
rington, L. R. 7 H. L. 854. And in
certain causes the Divorce Act confers
the power to modify the marriage set-
tlement upon final sentence. 20 & 21
Vict. c. 85, § 45. Wiiere application is
made for that purpose, the judicial ob-
ject of thus proceeding is, apparently,
to prevent tlie innocent party from be-
ing injuriously affected in property by
the decree. Maudslay v. Maudslay,
L. R. 2 1*. D. 256. On the decree for
dissolution ';f marriage becoming abso-
lute, it takes effect from the date of
the decree nisi. Prole u. Soady, L. R.
3 Ch. 220.
1 Lawson v. Shotwell, 27 Miss. 6.30.
2 Dobson V. Butler, 17 Mo. 87; 4
Kent, Com. 53, n., 64; Given v. Marr,
27 Me. 112; Wheeler v. Hotchkiss, 10
Conn. 225 ; Calame v. Calame, 24 N. J.
Eq. 440; Hunt v. Thompson, 61 Mo.
148; Schouler, Hus. & Wife, § 559;
Rice V. Lumley, 10 Ohio St. 596. But
see Wait v. Wait, 4 Conist. 95 ; En-
318
sign, Ee, 103 N. Y. 284. As to property
of the husband in the divorced wife's
possession, see Lane v. Lane, 76 Me.
521. As to communitj' property see
59 Tex. 54 ; 60 Cal. 579.
3 Jordan v. Clark, 81 111. 465. Here
divorce was granted to A. for the fault
or misconduct of A.'s wife, but the
principle of the case was that the wife
could only be entitled to receive the
provision as A.'s widow. A divorce a
vinculo obtained by the wife, though for
the husband's misconduct, bars dower.
Calame v. Calame, 24 N. J. Eq. 440.
And see Gleason v. Emerson, 51 N. H.
405; Hunt v. Thompson, 61 Mo. 148.
Cf. New York statute, construed in
Schiffer r. Prudcn, 64 N. Y. 47 ; also
Ohio statute, in 44 Ohio St. 645. Some
State codes provide how the homestead
sliall be disposed of. 114 111. 376.
* Chase v. Chase, 6 Gray, 157; 2
Bishop, Mar. & Div. § 724 ; Schouler,
Hus. & Wife, § 559. And see Capel v.
Powell, 17 C. B. N. s. 743.
If the husband receives any prop-
ert}' of tlie wife after divorce, she may
recover it in a suit for money had and
CHAP. XVII.] SEPARATION AND DIVORCE.
§ 222
property of a wife settled, or otherwise vested in her, is not to
be disturbed by a divorce,^ nor property vested already in the
husband by gift from his wife.^
§ 222. Effect of Partial Divorce upon Property Rights. —
Divorce from bed and board, or nisi, produces, however, no such
sweeping results ; the cardinal doctrine here being that the mar-
riage remains in full force, although the parties are allowed to
live separate. Here we must consult the phraseology of local
statutes with especial care, in order to determine the respective
rights and duties of the divorced parties. Thus the consequence
of judicial separation, under the present divorce acts of England,
is to give to the wife, so long as separation lasts, all property of
every description which she may acquire, or which may come to
or devolve upon her, including estates in remainder or reversion ;
and such property may be disposed of by her in all respects as
if she were 2^. feme sole; and if she dies intestate it goes as if her
husband had then been dead.^
In this country, independently of statutory aid, the property
rights of the parties divorced from bed and board remain in gen-
eral unchanged. For this divorce is only a legal separation, ter-
received. 2 Bisliop, Mar & Div. 714 ;
Legs ^'- Legg, 8 Mass. 99. See Kint-
zin^er's Estate, 2 Ashm. 455. How
far, on the divorce of the husband, his
assignee may claim against the wife
does not clearly appear ; but where the
divorce was obtained tlirougli his fault,
the wife's equitable provision, it seems,
will be favorably regarded as against
him. 2 Bishop, § 715, and conflicting
cases compared ; Woods v. Simmons,
20 Mo. 363; 2 Kent, Com. 136 et spq.
Divorce takes away the husband's
right of administration upon the estate
of his divorced wife. 2 Bishop, Mar &
Div. 5th ed. § 725; Altemus's Case, 1
Ashm. 49. See, further, as to the ef-
fect of divorce, Schoulcr, Hus. & Wife,
§ 561, and cases cited.
1 Barclay v. Waring, 58 Ga. 86;
Harvard College r. Head, 111 Mass.
209; Schouler, Hus. & Wife, § 560;
Jackson v. Jackson, 91 U. S. 122;
Stultz V. Stultz, 107 Ind. 400.
It is held, and upon that principle of
sound policy which maintains inviolate
the sanctity of the marriage union
while discouraging stale and doubtful
litigation to which their final and angry
rupture might incite one of the married
parties, that a divorced wife cannot
maintain an action against her divorced
husband upon an implied contract
arising during coverture : Pittman v.
Pittman, 4 Oreg. 298 ; nor for an al-
leged assault committed upon her while
they were husband and wife. Abbott v.
Abbott, 67 Me. 304. Such remedies, so
far as available at all, ought to be suf-
ficiently available at the time the right
accrued and during marriage. As to a
note from the divorced husband, see
Chapin v. Chapin, 135 Mass. 393.
- Tyson v. Tyson, 54 Md. 35.
3 Stats. 20 & 21 Vict. c. 85, § 25 ; 21
& 22 Vict. c. 108, § 8. See Romiily,
M. R., in Re Insole, L. R. 1 Eq. 470.
319
§ 222
THE DOMESTIC RELATIONS.
[part II.
minable at the will of the parties ; the marriage continuing in
regard to everything not necessarily withdrawn from its opera-
tion by the divorce.^ Thus, the husband still inherits from the
wife, and the wife from the husband ; the one takes his curtesy,
the other her dower ; and even the right of reducing the wife's
choses in action into possession still remains to the guilty hus-
band.2 But chancery, by virtue of its jurisdiction in awarding
the wife her equity to a settlement, may, and doubtless will,
keep the property from his grasp, and do to both what justice
demands.^ On principle, the right to administer woulil seem
not to be forfeited by one's divorce from bed and board.*
1 Dean v. Riclninond, 5 Pick. 461 ; 2
Bishop, Mar. & Di v. 5tli ed. § 726 et seq.\
Castlebury v. Maynard, 95 N. C. 281.
2 Clark I'. Clark, 6 Watts & S. 85 ;
Kriger v. Day, 2 Pick. 316 ; Smodt v.
Lecatt, 1 Stew. 590; Ames v. Chew, 5
Met. 320.
3 Holmes v. Holmes, 4 Barb. 295 ;
Schouler, Hus. & Wife, §§ 161, 562, 563.
* But see limitations sutrgested in
Schouler, Hus & Wife, § 563.^
The recent Englisli statutes give the
wife, upon sentence of judicial separa-
tion, the capacity to sue and be sued
on somewhat the same footing as a.feme
sole. The rule in tJie United States is
not uniform; but the tendencj' is
clearly in tlie same direction. See 2
Bishop, Mar. & Div. 5th ed. § 737, and
cases cited ; Lefevres v. Murdock,
Wright, 205; Clark v. Clark, 6 Watts
& S. 85. And see, further, as to statu-
tory provisions, including a division of
property, Schouler, Hus. & Wife, § 564,
and appendix ; 2 Bishop, Mar. & Div.
§§ 509-519.
Concernhirj the conflict of lairs, with
respect of (1) marriage, (2) marital
rights and duties, and (3) divorce, see
Schouler, Hiis. & Wife, §§ 5(i6-575.
As affecting the rights and duties of
the marriage relation, Story, in his
Conflict of Laws, after an extended
discussion of the great diversity of
laws existing in dilferent countries, as
to the incidents of marriage, lays down
320
the following primary rules, which are
of general application. (1) Where
parlies are married in a foreign coun-
try, and there is an express contract
respecting their rights and property,
present and future, it will be held
equally valid everywhere, unless, luider
the circumstances, it stands prohibited
by the laws of the country where it is
sought to be enforced. It will act
directly on movable property every-
where. But as to immovable property
in a foreign territory, it will, at most,
confer only a right of action, to be en-
forced according to the jurisdiction ret
sitcB. (2) Where such an express con-
tract applies in terms or intent only to
present property, and there is a cliange
of domicile, tlie law of the actual dom-
icile will govern the rights of tlie par-
ties as to all future acquisitions. (3)
Where there is no express contract, the
law of the matrimonial domicile will
govern as to all the rights of the parties
to their present property in that place,
and as to all personal property every-
where, upon the principle that mova-
bles have no silns, or, rather, tiiat they
accompany the person every wiiere.
As to immovable property the law rei
sitce will prevail. (4) Wliere there is
no change of domicile, the same rule
will ajjply to future acquisitions as to
present property. (5) But where there
is a change of domicile, the law of the
actual domicile, and not of the matri-
monial domicile, will govern as to all
CHAP. XVn.] SEPARATION AND DIVORCE.
§222
future acquisitions of movable prop-
erty ; and as to all immovable proi>-
erty, the law rei sike. Story, Confl.
Laws, §§ 184-187. And see Besse v.
Pellochoux, 73 111. 285.
He further adds that although in a
general sense the law of the matri-
monial domicile is to govern in relation
to tiie incidents and effects of marriage,
yet this doctrine must be received with
many qualifications and exceptions, in-
asmuch as no nation will recognize
such incidents and eft"ects when incom-
patible with its own policy or injurious
to its own interests. So, too, perplex-
ing questions will sometimes arise in
determining upon the real matrimonial
21
domicile of parties who marry in tran-
situ, during a temporary residence
abroad, or on a journey made for that
purpose with the intention of return-
ing. But tlie true principle in such
cases is to consider as the real matri-
monial domicile the place where, at
the time of marriage, the parties in-
tended to fix their abode, and not the
place where the ceremony was in fact
performed. Story, Confi. Laws, §§ 189-
199, and cases cited. See also 1 Burge,
Col. & For. Laws, 244-639 ; Wharton,
Confl. Laws, §§ 118-121, 166, 187-
202 ; and Schouler, Hus. & Wife, § 570,
note.
321
PAET III.
PAEENT AND CHILD.
CHAPTER I.
OF LEGITIMATE CHILDKEN IN GENEKAL.
§ 223. Parent and Child in General ; Children, Legitimate and
Illegitimate. — The second of the domestic relations is that of
Parent and Child ; a relation which results from marriage, and
is, as Blackstone terms it, the most universal relation in nature.^
Both natural and politic law, morality, and the precepts of re-
vealed religion alike, demand the preservation of this relation
in its full strength and purity. In the first period of their exist-
ence, children are a common object of affection to the parents,
and draw closer the ties of their mutual affection ; then comes
the education of the child, in which the parents have a common
care, which further identifies their sympathies and objects ; the
brothers and sisters of the child, when they come, bring with
them new bonds of affection, new sympathies, new common ob-
jects ; and the habits of a family take the place of the wishes of
an individual. Thus do children give rise to affections which
still further tend to bind together the community by links of
iron.2
Children are divided into two classes, legitimate and illegiti-
mate. The law prescribes different rights and duties for these
1 1 Bl. Com. 447.
a 1 Whewell, Elements of Morality, 100; 2 Kent, Com. 189.
322
CHAP. I.] LEGITIMATE CHILDREN IN GENERAL. § 225
classes.^ It becomes proper, then, to consider tliem in order.
First, then, as to legitimate children, to which topic alone the
relation of parent and child in strictness applies ; this will
occupy several chapters.
§ 224. Legitimate Children in General. — A legitimate child
is one who is born in lawful wedlock, or is properly brought
within the influence of a valid marriage by reason of the time
of birth. Legitimacy, as the word imports, will require that
the child be born in a manner approved of by the law. If he
is begotten during marriage and born afterwards, it is enough.^
§ 225. Presumption of Legitimacy. — The maxim of the civil
law is Pater est quern, nnpticc demonstrant ; a rule frequently cited
with approval by common-law authorities, though, as we shall
soon see, differently applied in some respects.^ A distinguished
Scotch jurist pronounces this "a plain and sensible maxim,
which is the corner-stone, the very foundation on which rests
the whole fabric of human society."^ Boullenois, a civil-law
writer, likewise commends it as " a maxim recognized by all
nations, which is the peace and tranquillity of States and fam-
ilies."^ This maxim implies that it is always sufficient for a
child to show that he is born during the marriage. The law
draws from this circumstance the necessary presumption that
he is legitimate. Every child born in wedlock is presumed to be
legitimate, and the child's paternity is provable by reputation.
Strong, however, as this presumption may be, it is not con-
clusive at law. For there may be other circumstances ; such
as long-continued separation of the parents ; the impotence of
the father ; also, if the offspring be posthumous, the length of
period which has elapsed since the father's death. Such cir-
cumstances might render it physically and morally impossible
that the child was born and begotten in lawful wedlock. The
civil law, therefore, admitted four exceptions to the general
1 1 Bl. Com. 447. * Lrl. Pres. Blair, in Routledge v.
2 lb. ; Eraser, Parent & Child, 1 ; Carruthers, 19 May, 1812, cited by Fra-
1 Burge, Col. & For. Laws, 69. ser, supra.
3 1 Bl. Com. 447 ; Stair, IIL 3, 42; & Boullenois, Traite'des Status, tome
2 Kent, Com. 212, n. ; Fraser, Parent 1, p. 62, also cited by Fraser, supra.
& Child, 1, 2, and authorities cited;
1 Burge, Col. & For. Laws, 59.
823
§ 225 THE DOMESTIC RELATIONS. [PART III.
maxim : first, the absolute and permanent impotence of the
husband ; second, his accidental impotence or bodily disability ;
third, his absence from his wife during that period of time in
which, to have been the father of the child, he must have had
sexual intercourse with her ; fourth, the intervention of sick-
ness, vcl alia causa} These concluding words admit the classi-
fication to be imperfect. The common-law rule, which subsisted
from the time of the Year Books down to the early part of the
last century, declared the issue of every married woman to be
legitimate, except in the two special cases of the impotency of
the husband and his absence from the realm.^ But in Pendrell
v. Pendrdl the absurd doctrine of making legitimacy rest con-
clusively upon the fact of the husband being infra quatuor maria
was exploded.^ Some Scotch jurists resolve the grounds upon
which the presumption of legitimacy may be overthrown into
two : first, that the husband could not have had sexual inter-
course with his wife by reason of his impotency ; and second,
that, having the power, he had in fact no sexual intercourse
with her at the time of the conception.* This seems to mean,
first, that the husband physically could not; second, that he
actually did not ; but does not the second exception swallow the
first ? Perhaps the safer course is to abandon all attempts to clas-
sify ; and to hold, with Chancellor Kent, that the question of the
legitimacy or illegitimacy of the child of a married woman is one
of fact, resting on decided proof as to the non-access of the hus-
band, and that these facts must generally be left to a jury for
determination.^
From the peculiarities attending the case of access or non-
access, legitimacy or illegitimacy, great indulgence is to be
shown by the courts. Said Lord Erskine : " The law of Eng-
land has been more scrupulous upon the subject of legitimacy
than any other, to the extent even of disturbing the rules of
1 Dig. lib. 1, tit. 6, 1. 6 ; 1 Burge, * Fraser, Parent & Child, 4.
Col. & For. Laws, 60. & 2 Kent, Com. 211 ; 3 P. Wms. 275,
2 2 Kent, Com. 210; Co. Litt. 244 a ; 276; Harg. n. li»3 to Co. Litt. lib. 2;
1 Roll. Abr. 358. Rex v. Luffe, 8 East, 193. And to the
3 Stra. Rep. 925 ; 2 Kent, Com. 211, same effect, see Blackburn v. Craw-
and cases cited ; Shelley v. (1806), fords, 3 Wall. 175.
13 Ves. 56.
324
CHAP. I.] LEGITIMATE CHILDREN IN GENERAL. § 225
reason." ^ Still later was it asserted in English chancery that
the ancient policy of the law remained unaltered ; and that a
child born of a married woman was to be presumed to be the
child of the husband, unless there was evidence, beyond all
doubt, that the husband could not be the father.^ And it is at
this day admitted that the presumption thus established by
law is not to be rebutted by circumstances which only create
doubt and suspicion ; but that the evidence against it ought to
be strong, distinct, satisfactory, and conclusive.^
So far, indeed, is legitimacy favored at law, that neither hus-
band nor wife can be a witness to prove access or non-access.
This is clearly established in England ; * and it is understood to
be the law likewise in this country, though the decided cases
seem to turn upon the admissibility of the wife's testimony.^
Such evidence is treated as contra honos mores. Yet the wife is
an admissible witness to prove her own adultery, and in ques-
tions of pedigree ; and husband and wife may prove facts, such
as marriage and date of the child's birth; these may be conclu-
sive as to illegitimacy.® Much testimony, extremely delicate, is
also taken in bastardy and divorce proceedings. When, there-
fore, the courts shut their eyes so tightly against this proof of
access or non-access, perhaps it is not because they are shocked,
but lest they should see illegitimacy established.
To carry the presumption of legitimacy so far as to disturb
the rules of reason is unjust ; for no man should be saddled
with the obligations of children which clearly do not belong to
1 Shelley v. , 13 Ves. 56. Parker v. Way, 15 N. H. 45 ; Dennison
2 Head v. Head, 1 Sim. & Stu. 150 v. Pago, 29 Penn. St. 420. The father's
(1823) ; Banbury Peerage Case, ib. 153; declarations as to a son's illegitimacy
Pendrell v. Pendrell, 2 Stra. 925. are competent. Barnum v. Barnura, 42
8 Hargrave v. Hargrave, 9 Beav. Md. 251. A mother may testify that
552; Archley v. Sprigg, 33 L. J. Ch. she was always true to the reputed
345 ; Plowes v. Bossey, 8 Jur. n. s. 852 ; father, her hu.sband, and that no other
10 W. R. 332 ; Fox v. Burke, 31 Minn, man could have been the father of the
319; Watts ?'. Owens, 62 Wis. 512. child. AVarlick r. White, 76 N. C
< Rex V. Inhabitants of Sourton, 5 175. Semble, such mother's truthful-
Ad. & El. 188 ; Patchett v. Holgate, 3 ness may be impeached, but not her
E. L. & Eq. 100 ; 15 Jur. 308 ; In re general character for chastity. Ih.
Hideout's Trusts, L. R. 10 Eq.41. 6 See 1 Greenl. Evid. §§ 343, 344;
o 2 Stark. Evid. § 404 ; 1 Greenl. Caujolle v. Ferrie, 23 N. Y. 90. And
Evid. § 344; Phillips v. Allen, 2 Allen, see Sale v. Crutchfield, 8 Bush, 636;
453 ; People r. Overseers, 15 Barb. 286 ; Dean v. State, 29 Ind. 483.
325
§ 225 THE DOMESTIC RELATIONS. [PART III.
him. And the rule of evidence in the English courts has been
severely and justly criticised, not without some good results.^
The decision of the House of Lords in the celebrated Banbury
Peerage case proceeded upon the reasonable assumption that
moral as well as physical impossibilities may affect the rule of
legitimacy. Here husband and wife occupied the same house
at the very time the child must have been begotten, and no
case of impotency was made out, and yet that child was held
not to be the child of the husband ; for the testimony as to a
moral impossibility was sufficiently strong notwithstanding.^
This case was confirmed by another, where husband and wife
had voluntarily separated, but the husband resided at a distance
of only fifteen miles, and sometimes visited his wife ; and the
wife was delivered of a child, which was pronounced a bastard,
from evidence of the conduct of the wife and her jiaramour.
Here it was said, " The case, therefore, comes back to the ques-
tion of fact." ^ A still later case, and a close one, strengthens
the same doctrine.* Impotency of the husband, and his absence
from the realm, suggest then but two classes of cases, and those
not the only ones, where children may now be pronounced
bastards.^
1 2 Kent, Com. 211, n. ; Fraser, regarded the child as the offspring of
Parent & Chihl, 7. her paramour.
2 1 Sim. & Stu. 153. See Nicolas on ^ Hargrave v. Hargrave, 9 Beav.
Adulterine Bastardy, 181, a volume 552. " I apprehend," said Lord Lang-
written to show that this case over- dale, " that evidence of everj' kind,
turns the old law of England. direct or presumptive, may be adduced,
3 Morris v. Davies, 5 CI. & Fin. 463. for the purpose of showing the absence
And see Barony of Saye & Sele, 1 CI. of sexual intercourse which, in cases
& Fin. N. 8 507 ; Sibbett v. Ainsley, 3 wliere there has been some society, in-
L. T. N. s. 583, Q. B. ; Fraser, Parent, tercourse, or access, has been called
& Child, 8; King v. Luffe, 8 East, 103; non-generating access. We have, there-
also, Hitchins v. Eardlej', L. R. 2 P. & fore, to attend to the conduct and the
T). 248, as to admitting declarations of feelings, as evidenced by the conduct
the person whose legitniiacy is at of the parties towards each other and
issue. the oifspring, and even to the declara-
* Bosvile V. Attorney- General, 12 tions accompanying acts, wliich are
P. D. 177. Here a child had been born properly evidence. Such circumstances
two hundred and seventy-six days after are of no avail against proper evidence
the last opportunity of intercourse be- of generating access ; but they may
tween the husband and wife, or witliin liJive weight, when the effect of tliat evi-
a very few days later than the usual dence is doubtful. If the weight is not
period of gestation; and there was evi- such as to convince tlie minds of those
dence tending to show that the wife who have to determine the matter, the
326
CHAP. I.] LEGITIMATE CHILDREN IN GENERAL.
§226
In this country, cases have not unfrequently arisen which
involve the legitimacy of offspring ; and the more reasonable
doctrine favors legitimacy to about the same extent as the later
English decisions.^ The presumption of legitimacy is strongly
carried, as the cases below cited indicate ; though not so far as
to exclude proof of non-access of the husband, or such other
rational facts as might rebut this presumption, and show that
the child of a married woman was in reality a bastard.^ In
short, the presumption in favor of the legitimacy of a child
born in wedlock is not to be taken as a presumption of law,
but a presumption which may be rebutted by evidence clear
and conclusive, though not resting merely on a balance of
probabilities.^
§ 226. Legitimation of Illicit Offspring by Subsequent Mar-
riage. — In respect of the legitimation of offspring by the sub-
effect may only tend to shake, without
removing, the presumption of legitima-
cy, which in such a case must prevail."
1 Patterson v. Gaines, 6 How. (U. S.)
582 ; 2 Kent, Com. 211, and cases cited ;
Hemmenway i'. Towner, 1 Allen, 209 ;
Van Aernam v. Van Aernam, 1 Barb.
Ch. 375; Wrights. Hicks, 15 Geo. 160.
'^ See Van Aernam v. Van Aernam,
1 Barb. Ch. 375 ; Kleinert v. Ehlers, 38
Penn. St. 439; Phillips v. Allen, 2 Al-
len, 453 ; Hemmenway v. Towner, 1
Allen, 209; State v. Herman, 13 Ire.
502; Tate v. Pene, 19 Martin, 548
Cannon v. Cannon, 7 Humph. 410
State V. Shumpert, 1 S. C. n. s. 85
Strode v. Magowan, 2 Bush, 621 ; Black-
burn V. Crawfords, 3 Wall. 175 ; Wilson
V. Babb, 18 S. C. 59. Collateral proof
of legitimacy is not to be favored. See
Kearney v. Denn, 15 Wall. 51. But
under suitable circumstances the grant
of letters of administration may be
conclusive in other courts. Caujolle
V. Ferrie, 13 Wall. 465.
Formerly, in portions of the United
States, slave marriages were deemed
unlawful, and the offspring illegitimate.
Timmins v. Lacy, 30 Tex. 115. But
slavery no longer exists, and the ten-
dency of our legislation is now to up-
hold as far as possible former mar-
riages of colored persons, and the
legitimacy of their offspring, cohabita-
tion continuing. See White v. Ross,
40 Geo. 339; Allen v. Allen, 8 Bush,
490 ; Gregley v. Jackson, 38 Ark. 487 ;
34 La. Ann. 265; Clements v. Crawford,
42 Tex. 601 ; Daniel v. Sams, 17 Fla.
487 ; supra, § 17.
To impugn a child's paternity, repu-
tation of the mother for unchastity is
admissible, if at all, only as to unchas-
tity prior to connection with the re-
puted father. Morris v. Swaney, 7
Heisk. 591 ; Warlick v. White, 76 N. C.
175. If the son was colored and the
mother an Indian, the color will be
presumed to have been derived from
the mother rather than disturb the pre-
stimption of legitimacy. Illinois Land
Co. V. Bonner, 75 111. 315. Where
parents and other members of the fam-
ily have long and consistently treated a
child as legitimate, this affords strong
presumption of legitimacy in any case.
lb. ; Gaines v. Mining Co., 32 N. J. Eq.
86. But not proof indisputable. Bus-
som V. Forsyth, 32 N. J. Eq. 277.
And as to proof of marriage, see
also Schouler, Hus. & Wife, §§ 38, .39.
3 See 12 App. Cas. 312 ; §277.
827
§ 226 THE DOMESTIC RELATIONS. [PART HI.
sequent marriage of their parents, the civil and common law
systems widely differ. By the civil and canon laws, two per-
sons who had a child as the fruit of their illicit intercourse
might afterwards marry, and thus place their child to all intents
and purposes on the same footing as their subsequent offspring,
born in lawful wedlock.^ But the common law, though not so
strict as to require that the child should be begotten of the
marriage, rendered it indispensable that the birth should be
after the ceremony,^ Let us notice this point of difference at
some length.
It appears that the law of legitimation per sulsequens matri-
monium, is of Eoman origin ; introduced and promulgated by
the first Christian Emperor, Constantine, as history alleges,
at the instigation of the clergy. This was an innovation upon
the earlier Eoman system; and the object of its introduction
was to put down that matrimonial concubinage which had be-
come so universal in the Empire.^ Justinian afterwards made
this law perpetual.* Its first appearance in the canon law is
found in two rescripts of Pope Alexander III., preserved in the
Decretals of Gregory, and issued in 1180 and 1172.^ These ex-
tended the benefits of the marriage to the offspring of carnal
love, and not merely to the issue of systematic concubinage.
This law of legitimation was introduced into Scotland within
the range of authentic history.^ It is also admitted, with dif-
ferent modifications, into the codes of Erance, Spain, Germany,
and most other countries in Europe.'^
The principle to which the law of legitimation per suhsequens
matrimonium is to be referred has been a subject of controversy.
1 2 Kent, Com. 208 ; 1 Biirge, Col. ^ " Lioita consuetudo semimatrimo-
& For. Laws, 92. nium." Cod. lib. 6, tit. 57.
2 1 Bl. Com. 454. If the child be * Taylor's Civil Law, 272 ; Fraser,
born after the ceremony, even though Parent & Child, 32 ; 1 Burge, Col. &
it be but a few weeks later, the pre- For. Laws, 92, 93.
sumption of paternity against the bus- '' Deer. IV. 17, 1 ; IV. 17, 6, cited
band is almost irresistible, and the in Fraser, Parent & Child, 33. " Tanta
burden is on him to show affirmatively est enim vis sacramenti (matrimonii)
to the contrary, in order to establish ut qui antea sunt geniti post contractum
the child's status as illegitimate. Card- matrimonium habeantur legitimi."
ner v. Gardner, 2 App. Cas. 723. Cf. ^ Fraser, Parent & Child, 32, 33.
In re Corlass, 1 Ch. D. 460. ^ 1 Burge, Col. & For. Laws, 101.
32S
CHAP. I.] LEGITIMATE CHILDREN IN GENERAL. § 226
The canonists based the law not on general views of expediency
and justice, but upon a fiction which they adopted in order to
reconcile the new law with established rules ; for, assuming
that, as a general rule, children are not legitimate unless born
in lawful wedlock, they declared that, by a fiction of law, the
parents were married when the child was born. Such reason-
ing, by no means uncommon in days when the wise saw more
clearly what was right, than why it was so, has not stood the
test of modern logic ; and the Scotch courts have placed the
rule once more where its imperial founders left it ; namely, on
the ground of general policy and justice. " Legitimation is
thought to be recommended by these considerations of equity
and justice, that it tends to encourage what is at first irregular
and injurious to society, into the honorable relation of lawful
matrimony ; and that it prevents those unseemly disorders in
families which are produced where the elder-born children of
the same parents are left under the stain of bastardy, and the
younger enjoy the status of legitimacy." ^
This doctrine of the civil law has found great favor in the
United States. It has prevailed for many years in the States
of Vermont, Maryland, Virginia, Georgia, Alabama, Mississippi,
Louisiana, Kentucky, Missouri, Indiana, and Ohio.^ So in
Massachusetts, bastards are to be considered legitimate after
the intermarriage of their parents and recognition by the
father.^ And similar statutes are to be found in Maine, New
Hampshire, Pennsylvania, Vermont, Tennessee, and elsewhere.*
1 Fraser, Parent & Child, 35 ; Munro Sleigh v. Strider, 5 Call, 439 ; Dan-
V. Munro, 1 Rob. H. L. Scotch App. nelli v. Dannelli, 4 Bush, 61 ; Adams
492. V. Adams, 36 Geo. 236; Morgan v.
^ Griffith's Law Reg. passim; 1 Perry, 61 N. H. 669; Brown v. Bel-
Burge, Col. & For. Laws, 101. This marde, 4 Kans. 41 ; Williams v. Wil-
provision protects the offspring of an lianis, 11 Lea, 662; Brock ?'. State, 85
adulterous connection as well as that Ind. 397. In some States still another
of parents who were free to contract mode of legitimation, for inheritance,
marriage when the children were born, if not for all other purposes, is per-
Hawbecker v. Hawbecker, 43 Md. 516. mitted by law as to such offspring ;
3 Mass. Gen. Sts. 1860, c. 91. namely, by the father's formal decla-
* Maine Laws, 1852, c. 266; Penn. ration, or that of both parents, properly
Laws, 18c7, Maj' 14; Vermont R. S. attested, which is filed in court and re-
1863, c. 56; Ind. R. S. 1862, c. 46. corded. This might be called legitima-
And see Graham v. Bennett, 2 Cal. tion by public or judicial record after
503; Starr v. Peck, 1 Hill (N. Y.), 270; intermarriage of parents. See Lingen
329
§ 227 THE DOMESTIC RELATIONS. [PART III.
§ 227. Legitimation by Subsequent Marriage not favored in
England. — On the other hand, the English law has very
strongly opposed the whole doctrine of legitimation per suh-
scquens matrimonium. Even so far back as the reign of
Henry III. is found a memorable instance where the peers
refused to change the law in this respect, when urged to do
so by the English bishops ; declaring with one voice, qvod
7iolunt Icyes Anglice mutarc, quce hue usque usitatce sunt ct ap-
prohatct.^ Jealousy of canonical influence may partially ac-
count for this conduct, if not prejudice against the civil law
generally. Certain it is that most English jurists have ever
since stubbornly maintained the superiority of their own max-
ims, which place the immutability of the marriage relation
above all the tender promptings of humanity towards innocent
sufferers. Even Blackstone vigorously assails the civil-law doc-
trine, urging against it several rather artificial objections, in the
apparent belief that legal consistency is better than natural
justice.^ But on the other hand, Selden mentions that the
children of John of Gaunt, Duke of Lancaster, were legitimated
by an act of Parliament, in the reign of Richard II., founded
on some obscure common-law custom.^
Upon such principles it has been decided by the House of
Lords, that where a marriage is in its inception unlawful, being
at a time when the woman's first husband must have been
alive, children born even after the time when it was presumed
that the first husband had died, must be pronounced illegiti-
mate ; the mere continuance of the cohabitation after that
event being insufficient, without celebration, to change the
character of the connection.* Nor will an absolute presump-
tion of law be raised as to the continuance of life to support
such legitimacy; for in every instance the circumstances of the
case must be considered.^ And so strict is the rule, that where
r. Lingen, 4.5 Ala. 410, 414 ; Pina v. "I Bl. Com. 454, 455.
Peck, 31 Cal. 3.59 ; Talbot v. Hunt, ^ Selden on Fleta, c. 9, § 2. And see
28 La. Ann. 3. Recognition of a less Barrington, p. 38 ; 2 Kent, Com. 209.
formal character suffices for purposes * Lapsley v. Grierson (1848), 1 CI.
of inheritance in Iowa. Crane i^. Crane, & Fin. n. s. 498; Cunningham i;. Cun-
31 Iowa, 296. ningham, 2 Dow, 482.
1 Stat, of Merton, 20 Hen. III. c. ^ Lapsley v. Grierson. ih., cxplain-
9 ; 2 Kent, Com. 209 ; 1 Bl. Com. 456. ing Rex v. Twyning, 2 B. & A. 386.
330
CHAP. I.] LEGITIMATE CHILDREN IN GENERAL, § 229
a person, born a bastard, becomes, by the subsequent marriage
of his parents, legitimate according to the laws of the country
in which he was born, he is still a bastard, so far as regards the
inheritance of lands in England.^
§ 227 a. Legitimacy of Offspring born after Divorce. — As to
the status of children born after divorce, partial or complete,
little can be stated from the books ; for such divorces hardly
existed at the common law.^ They are probably illegitimate
'prima facie, if born of the divorced mother within an unrea-
sonable time after separation.^ A remarriage by a divorced
party in a state or country where such marriages are not pro-
hibited will make the offspring of such remarriage legitimate in
spite of local prohibitions where the divorce was decreed.^
§ 228. Legitimacy in Marriages Null but Bona Fide Contracted.
— The issue of marriages rendered null and void are on general
principles necessarily illegitimate. Opposed to this is the civil-
law doctrine of putative marriages, first introduced into the
canon law by Pope Innocent III.; which upholds the legiti-
macy of the children in cases where the parties, or either of
them, hona fide believing that they could marry, had entered
into the contract while there was some unknown impediment
existing.^ This subject is regulated by statute to a great extent
in this country; and here again our system conforms to the
civil rather than the common law.^
§ 229. Legitimation by the State or Sovereign. — Legitima-
tion by rescript of the Emperor appears in the Institutes of
1 Doe d. Birtwliistle v. Vardill, 6 Montgomery v. Montgomery. 3 Barb.
Bing. N. C. 385 ; 7 CI. & Fin. 895. And Cli. 132.
see c. 6, post. s gt. George i-. St. Margaret, 1 Salk.
The only exception permitted by 123; 2 Bishop, Mar.& Div. § 740.
the common law under this general 4 Moore v. He^eman. 92 N. Y. 521.
head was that where the child whose 5 Praser, Parent & Child, 22 et seq. ;
parents subsequently married entered 1 Burge, Col. & For. Laws! 96. See
into possession of his father's lands Lapslev v. Grierson, 1 CI. & Fin. n. s.
after his father's death, and kept pos- 498, cited suprn.
session until his own death, so that 6 See supra, § 22. And see Graham
they descended to his own issue, no v. Bennett, 2 Cal. 503. Yet there is a
disturbance of title was permitted on case, that of Sir Balph Sadlier, where
the plea of such child's illegitimacy. Parliament gave relief. See Nicolas,
Bussom I'. Forsyth, .32 N. J. Eq, 277. Adult. Bast.^ 61-63 ; Fraser, Parent &
^ See Husband & Wife, supra, § 22 ; Child, 24 ; Burnett's Historv, book 1,
2 Bishop, Mar. & Div. 5th ed. § 559 ; c. 19; Riddell, Peer. & Cons. Law, 42L
331
§ 230 THE DOMESTIC RELATIONS. [PART III.
Justinian.^ Still later did the Pope assume the power to grant
the status of legitimacy ; and in many of the canonical dispen-
sations occur clauses of this sort.^ The effect of these high-
sounding clauses is now of little consequence.^ The English
Parliament, by virtue of its transcendent power, may render a
bastard legitimate and capable of inheriting.* This same power
has been claimed for the legislatures of the United States.^ And
except so far as legislative acts may come under constitutional
restraints against impairing the obligation of contracts, there
seems no reason why they should not be uniformly upheld.
§ 230. Domicile of Children. — The domicile of a child's
origin is to be determined by the domicile of his parents ; or,
to speak more strictly, of his father. We speak at this time
only of legitimate children. The domicile of origin remains
until another is lawfully acquired. And since minors are not
sui juris, they may not change their domicile during their
minority, though they may when of full age ; hence they re-
tain during infancy the domicile of their parents ; if the parents
change their domicile, that of the infant children follows it;
and if the father dies, his last domicile is that of the infant
children.^ The surviving mother may change the domicile of
her minor children, provided she do so without fraudulent
views to the succession of their estate ; though it would appear
that she cannot change it after her remarriage." In general,
1 Nov. 74, c. 1, 2 ; and 89, c. 9. ^ Potinger v. Wiglitman, 3 Mer. 67;
2 See Fraser, Parent & Child, 43. 1 Burge, Col. & For. Laws, 39; Brown
3 lb. V. Lynch, 2 Bradf. Sur.214 ; Carlisle v.
4 1 Bl. Com. 459. And see Stat. 6 Tuttle, 30 Ala. 613. The widow's re-
Will. IV. c. 22. moval from the homestead must not
^ Beall V. Beall, 8 Ga. 210 ; Vida! i\ prejudice the children's claim thereto.
Comma jere, 13 La. Ann. 516. It will Showers v. Robinson, 43 Mich. 502.
be presumed that a statute of this kind After the mother remarries, the domi-
confers legitimacy only so far as to cile of the child ceases to change, and
give the capacity to inherit. Grubh's does not follow that of tlie step-father.
Appeal, 58 Penn. St. 55. Ryall ;;. Kennedy, 40 N. Y. Super. 347.
6 Story, Confl. Laws, §§ 45, 46, and A female infant cannot change lier own
cases cited ; 1 Burge, Col. & For. Laws, domicile, even for the purpose of annul-
33; Abington y. North Bridgewater, 23 ling her marriage. Blumenthal t;. Tan-
Pick. 170 ; Taylor v. Jeter, 33 Ga. 195 ; nenholz, 31 N. J. Eq. 194.
Daniel v. Hill, 52 Ala. 430; Wharton, Following the usual rule, however,
Confl. § 41. But see Islian v. Gibbons, the real estate, even of children, de-
1 Bradf. Sur. 70; Sonierville v. Somer- sccnds according to the law of .s(V(/,s, and
ville, 5 Ves. 750. the personal according to the domicile.
332
CHAP. I.] LEGITIMATE CHILDREN IN GENERAL. § 231
dwelling at a certain place is prima facie proof that a person is
domiciled there. This question of domicile may be of impor-
tance in determining the grant of administration on a deceased
infant's estate, or, if the child be alive, of his guardian's
appointment.
Friiiia facie, the infant's residence or domicile is that of his
parent, and such it will remain during minority, in spite of his
temporary absence at school or elsewhere. Nor can he of
his own motion acquire a new domicile, since he is not a per-
son sui juris} But his domicile may be changed by his father,
if he has one ; otherwise, according to the best modern authori-
ties, by the surviving mother until her remarriage ; and perhaps
even by the guardian himself, although not a relative, provided
he act in good faith.^ The intent of the parent or guardian in
such cases is always material ; but this intent is to be deter-
mined by facts. The original domicile of an infant is that of
his parents at the time of his birth.^ And even an emancipated
minor is not in a position to acquire a legal domicile while his
minority lasts."*
§ 231. Conflict of LaAvs as to Domicile and Legitimacy. —
Some writers have said that, when the laws of two countries are
in conflict, the legitimacy or illegitimacy of children is to be
determined by the domicile of origin.^ Others, again, that it is
dependent upon the lex loci of marriage.^ Between these wri-
ters there is no real discrepancy ; for in every such case two
inquiries are involved, the one whether the marriage was in
itself lawful, the other whether the child was legitimate by the
marriage. Of the conflict of laws regarding marriage we have
already spoken." That involving the status of legitimacy is
now under consideration.
A conflict manifestly arises between the laws of domicile of
1 Macpbers. Inf. 579 ; Brown v. * Xorth Yarmouth ?'. Portland, 73
Lynch. 2 Bradf 214; Story, Confl. Me. 108. See 76. 583 ;§ 267.
Laws, § 4G. 5 1 Burge, Col. & For. Laws, 111;
'■^ Potinger v. Wightman, 3 Mer. 67 ; Fraser, Parent & Child, 45.
2 Kent, Com. 227, 430 ; 1 Burge, Col. & « Story, Confl. Laws, § 105; Whar-
For. Laws, 39 ; Brown v. Lynoh, 2 ton, Confl. §§ 35, 41.
Bradf. 214. "^ See Husband & Wife, p. 320,
* See, further, /)osf, Part IV. c. 5, as supra.
to Guardian and Ward.
333
§ 231 THE DOMESTIC RELATIONS. [PART III.
origin and subsequent marriage, and the laws of the actual
domicile or situs of property, where those of the one country
admit legitimation 2>cr suhsequens matrimoniu?)}, and those of the
other do not. As, for instance, where children are born, and
their parents afterwards intermarry in certain of the United
States or in Scotland, and then remove with their children to
England ; or where such children are deemed to have acquired
property rights in the last-named country. On this point there
is much diversity of opinion. And the English courts long
maintained their distinctive policy with considerable zeal in all
doubtful cases. Thus particularly was this done in the case of
Birttvhistle v. Vardill, where a child, legitimate to all purposes
in Scotland, was sternly denied the full rights of a lawful
child as to inheritance in England.^ Yet the law of foreign
countries as to legitimacy is so far respected in England that a
person illegitimate by the law of his domicile of birth will be
held illegitimate in England.^ The latest English cases, how-
ever, so far recede from this sturdy doctrine as to confine the
application of Birhvhistle v. Vardill to claims of succession to
real property in England ; and on the other hand, a bequest of
personalty in an English will to the children of a foreigner is
now construed to mean to his legitimate children, — that is to
say, on international principle, treating all children as legiti-
mate, whose legitimacy is established by the law of their
father's domicile.^ Our recent American cases have repudiated
the illiberal English doctrine with little care to discriminate
between the kinds of property.*
1 7 CI. & Fin. 895; 4 Jur. 1076; lb. child as a stranger in blood. Skottowe
5 B. & C. 4.38 ; Story, Confl. Laws, § 93 v. Young, L. R. 11 Eq. 474.
et seg., where the doctrine of Birtwhis- In tliis country the doctrine of Birt-
tle V. Vardill is strongly combated
See Boyes v. Bedale, 12 W. R. 2:32
before Wood, V. C. ; Story, Confl
Laws, 6th ed. § 93 w, n. by Redfield
And see Goodman v. Goodman, 3 Gif
643.
2 Munro v. Saunders, 6 Bligh, 468
whistle V. Vardill is sometimes followed
in matters of inheritance. Smith v. Derr,
34 Penn. St. 120; Stoltzr. Daering, 112
111. 234. And this, notwithstanding the
child was begotten in the State where
the question of inheritance afterwards
arose. Lingen r. Lingen, 45 Ala. 410.
cases cited in Birtwhistle v. Vardill, 9 See Miller v. Miller, 91 N. Y. 315.
Bligh, 52. But a foreign legitimation 3 Andros v. Andros, 24 Ch. D. 637;
was so far respected in a late case that Goodman's Trusts, 17 Ch. D. 266.
a succession tax was not laid upon the 4 When an illegitimate child has, by
334
CHAP. I.] LEGITIMATE CHILDREN IN GENERAL. § 232
The doctrine of general writers is that the status of legiti-
macy or illegitimacy, or the capacity to become legitimate ]_)er
subsequens matrimonium, is governed by the law of the domicile
of the child's origin.^ And since the domicile of origin is that
of the father, the great leading fact to be ascertained in such
inquiries will be generally the domicile of the father.^ A per-
son born before wedlock, who in the country of his birth is
considered illegitimate, will not, by a subsequent marriage of
his parents in another country, by whose laws such a marriage
would make him legitimate, cease to be illegitimate in the coun-
try of his birth.3 On the other hand, without a subsequent
marriage of his parents, lawful by the laws of the land where
celebrated, it is clear that any child must remam illegitimate,
whatever be the domicile of his origin.
§ 232. Parental Relation by Adoption. — By adoption a quasi
parental relation was sometimes constituted at the civil law.
Adoption is the taking or choosing of another's child as one's
own.* The adoption of children is still regulated in Germany
and France, but is not generally recognized in English or
American law. Adoption was not possible by our old common
law. But in Massachusetts it is recently provided that under
a judicial decree, rendered upon due investigation, any person
may adopt as his own the child of others ; and that the child
so adopted shall be deemed, for the purposes of inheritance and
all other legal consequences and incidents of the natural rela-
tion of parents and children, the child of the parents by
adoption, the same as if he had been born to them in lawful
wedlock.^ In Louisiana, the laws once authorized adoption ;
but this was changed by the Code of 1808. Yet adoption by
special act of the legislature is not unknown in that State.^
the subsequent marriage of liis parents, ^ Fraser, Parent & Cliilrl, 45.
become legitimate by the laws of the '^ Story, Confl. Laws, § 106. See
State or country where such marriage Succession of Caballero, 24 La. Ann.
took place, and the parents were domi- 573.
oiled, it Is thereafter legitimate every- * Inst. I. 11, 1; Bouvier, Law Diet,
where and entitled to all the rights " Adoption."
flowing from that status, including the ^ Mass. Gen. Sts. c. 110; Sewall v.
right to inherit real or personal es- Roberts, 115 Mass. 262.
tate. Miller v. Miller, 91 N. Y. 315. « Vidal v. Conimajere, 13 La. Ann.
1 1 Burge, Col. & For. Laws, 111. 616.
And see Skottowe i-. Young, supra.
535
§ 232
THE DOMESTIC RELATIONS.
[part in.
There are other States in which adoption is now permitted,
and the rights of the parent by adoption are treated substan-
tially as those of a natural parent.^ But our local legislation
has sometimes discountenanced the adoption of a stranger as
co-heir with one's own child.^ The consent of the natural
parent is usually requisite unless the reasons for dispensing
with it are strong.^ Adoption relates usually to minors and
not to adult children.*
The method of adoption in States which permit it is pointed
out by local law. In some States a written instrument must be
executed and recorded.^ In others a judicial decree, upon due
notice to kindred, or their assent, is requisite.^ Under the
^ Rives V. Sneed, 25 Ga. 612 ; Lunay
V. Vantyne, 40 Vt. 501.
2 Teal V. Sevier, 26 Tex. 516. See
Jolinson's Appeal, 88 Penn. St. 346;
Wagner v. Varner, 50 Iowa, 582. An
adopted child usually inherits from the
adopting parent, and vice versa, the
natural parent being excluded in pref-
erence. Davis V. Krug, 95 Ind. 1 ;
Humphries v. Davis, 100 Ind. 274, 369,
422. In Wisconsin the adopted child's
real estate follows the general rule of
descent. Hole v. Robbins, 53 Wis. 514.
An insurance policy in favor of " chil-
dren " will include an adopted child.
Martin v. JEtna Ins. Co. 73 Me. 25.
Such child may inherit under a trust
to one's "issue," though not where
" heir of body " is the expression.
Sewall V. Roberts, 115 Mass. 262. And
see Ingram v. Soutten, L. R. 7 H. L.
408. The rights of an adopted heir,
under the Texas statute, are co-equal
with the rights of the other heirs. In
this respect the old Spanish law is
modified. Eckford v. Knox, 67 Tex.
200.
3 37 N. J. Eq. 245.
4 See Moore, Re, 14 R. I. 38.
5 Tyler v. Reynolds, 53 Iowa, 146 ; 64
Iowa, 71 ; Bancroft v. Heirs, 53 Vt. 9.
c Ballard v. Ward, 89 Penn. St. 358;
137 Mass. 84, 346. The Louisiana
statutes, as to adoption, do not mean to
abridge the right of a natural tutor to
his minor child. Succession of For-
336
stall, 25 La. Ann. 480. The adoption
by instrument may require the survi-
ving parent to assent. Long v. Hewitt,
44 Iowa, 363. But the release of pa-
rental authority is not revocable at
pleasure. Jones v. Cleghorn, 54 Ga. 9.
Equity cannot dispense with strict
statute compliance as to adoption.
Long V. Hewitt, supra.
A statute making an adopted child
legally the child of the parents by adop-
tion is not unconstitutional unless in-
terfering with vested rights. Sewall i:
Roberts, 115 Mass. 262. Under the rule
of comity, adoption in another State
may be here recognized under suitable
circumstances. Ross v. Ross, 129 Mass,
243. But not where the courts of that
State had not jurisdiction. Foster v.
Waterman, 124 Mass. 592. General
rules of descent are not necessarily
changed by statutes of adoption ; but
on death of an adopted child his estate
goes to his blood relations. Reinders
V. Koppelmann, 68 Mo. 482. As to pe-
titions for adoption, see 137 Mass. 84,
346. That the child, who permitted
himself to be adopted as an heir, knew
the adopting parent to be of feeble or
unsound mind, is not fraud sufficient to
avoid the adoption. 101 Ind. 340. The
rights conferred by adoption cannot be
divested by the will of the adopting
parent. Hosser's Succession, 37 La.
Ann. 839. As to adoption by a husband
with or without his wife's consent, see
CHAP. II.] DUTIES OF PARENTS. § 23-J:
Koman civil law consanguinity was not, as our English common
law regards it, an essential basis to the filial relation ; for in-
fants were exposed to death, and indiflerence to blood offspring,
as well as to the ties of lawful wedlock, characterized the law
of family in the decaying age of the Empire. Adoption was a
convenience, however, even thus, for the transmission of wealth
and titles ; and by adoption, moreover, we find an unfruitful
couple at the present day, and in our own country, grafting the
tree, in obedience to the best of parental instincts.
CHAPTER II.
THE DUTIES OF PARENTS.
§ 233. Leading Duties of Parents enumerated. — Three leading
duties of parents as to their legitimate children are recognized
at the common law : first, to protect ; second, to educate ; third,
to maintain them. These duties are all enjoined by positive
law ; yet the law of the natural affections is stronger in uphold-
ing such fundamental obligations of the parental state.^
§ 234. Duty of Protection ; Defence, Personal and Legal. —
First, as to protection : that cover or shield from evil and in-
jury which is afforded by the parent. This duty the stronger
owes to the weaker, and especially does the father owe it to his
child, so long as the latter remains comparatively helpless. This
obligation may be shifted in time, as age adds to the strength of
the one and the infirmities of the other.
It is to the credit of our civilization that the natural duty of
protection is rather permitted than enjoined by any municipal
laws ; nature in this respect " working so strongly," to use the
63 Vt. 619 ; 87 Ind. 590. As to revok- i 1 Bl. Com. 447 ; 2 Kent, Com. 189 ;
inga deed of adoption in favor of the Taylor's Civil Law, .383; Puff. b. 4,
child's natural parent, see 78 Mo. 352. ch. 11, §§ 4, 5.
22 337
§ 235 THE DOMESTIC KELATIONS. [PART III.
forcible words of Blackstone, " as to need rather a check than a
spur." ^ The strongest illustration of protection at the common
law which is furnished by this learned writer, — that of a father
who revenged his sou's injury by going near a mile and beating
the offender to death with a cudgel, — though affording a ques-
tionable legal principle, as he puts it, at least shows what the
verdicts of our juries are constantly confirming, that the sympa-
thies of human tribunals are with him who defends his own off-
spring, even when his zeal outruns his discretion.^
A parent may, by the common law of England, maintain and
uphold his children in their lawsuits, without being guilty of
the legal crime of maintaining quarrels.^ He may also justify
an assault and battery committed in defence of the persons of
his children.* On the other hand, as we shall hereafter see,
where he is cruel and devoid of natural affection, his children
may be taken from his personal keeping ; nay, he may be sub-
ject to punishment for his own misconduct. The doctrine of
parental protection seems to have required little or no special
judicial discussion in modern times.
§ 235. Duty of Education. — Second. The second duty of
parents is that of education ; a duty which Blackstone pro-
nounces to be far the greatest of all these in importance.^
This importance is enhanced by the consideration that the
usefulness of each new member of the human family to so-
ciety depends chiefly upon his character, as developed by the
training he receives in early life. Not the increase of popula-
tion, but the increase of a well-ordered, intelligent and honora-
ble population, is to determine the strength of a State ; and, as
a civil writer observes, the parent who suffers his child to grow
up like a mere beast, to lead a life useless to others and shame-
ful to himself, has conferred a very questionable benefit upon
him by bringing him into the world.^ Solon excused the chil-
1 1 Bl. Com. 460. suits of his minor children. Hill v.
2 See 1 Hawk. P. C. 83, cited in 1 Childress, 10 Yerg. 514.
Bl. Com. 450, and n. by Coleridge, clt- < 1 Hawk. P. C. 131 ; 1 Bl. Com,
ing Fost. 294, and 2 Ld. Raym. 1498, 4-50. See infra, § 244.
in opposition to Blackstone's remark. ^ 1 Bl. Com. 450.
8 2 Inst. 564. But a parent is not ^ Puff. Law of Nations, b. 6, ch. 2,
bound to employ counsel to defend the § 12.
338
CHAP. II.] DUTIES OF PARENTS. § 235
dren of Athens from maintaining their parents, if they had
neglected to train them up in some art or profession.^ So in-
timately is government concerned in the results of early training,
that it interferes, and justly, too, both to aid the parent in giv-
ing his children a good education, and in compelling that educa-
tion, where the parent himself, and not the child, is delinquent
in improving the opportunities offered.^
Questions of parental, and more particularly religious educa-
tion arise often in English law under the will of the father. It
is laid down as the rule, that where one has left no direction in
his will as to the religion in which his children are to be edu-
cated, it will be presumed that his wishes were that they shall
be educated in his own religion.^ Further, that the religious
education of an infant of fifteen will not be changed unless the
infant wishes it.* But no regard is paid to the wishes of a child
ten years old.^ The father is allowed to designate the plan of
education to be followed with respect to his children after his
death. And while, as Lord Cottenham has observed, he has no
power to prescribe a particular religion to his child, yet he has
indirectly the power of effecting his object by the choice of a
guardian.^
The English courts of chancery have indeed exercised consid-
erable jurisdiction over the education of minor wards : a topic
which very seldom engages the attention of American tribunals.
While the penal laws against Eoman Catholics were in full force
in England, it was considered the duty of the Court of Chancery,
by analogy to the statute law, to see that all infants under its con-
trol should be brought up in the Protestant religion.' A case is
reported in which Lord Cowper ordered a Roman Catholic girl
to be sent to a Protestant school, evidently with a view to her
1 Plutarch's Lives; 2 Kent, Com. s Regina v. Clarke, 7 El. & B. 186.
195. And see Havvksworth v. Hawksworth,
2 Under existing; statutes a parent L. R. 6 Cli. 5.39.
may be prosecuted for neglecting to <> Talbot v. Earl of Shrewsbury, 18
educate his ciiild. School Board v. L. J. 125 ; Macphers. Inf. 126. See also
Jackson, 7 Q. B D. 502. Hilly. Hill, 8 Jur. n. s. 609. And see
3 fn re North, 11 Jur. 7, V. C. Bruce ; Eraser, Parent & Child, 82.
Macphers. Inf. 555; Campbell v. Mac- " Macphers. Inf. 123; Lady Teyn-
kay, 2 Myl. & Cr. 34. ham's Case, 9 Mod. 40.
* Witty V. Marshall, 1 You. & C.
N. C. 68.
339
§ 235 THE DOMESTIC RELATIONS. [PART III.
conversion.^ With the progress of religious toleration came a
different rule of practice ; and it is now a question whether,
under any circumstances, the court would interfere with the
testamentary guardian, and the infant's religion as designated
by the father ; indeed, according to many late decisions, the
Eoman Catholic faith appears in this respect as much favored
as the Protestant.^ lUit schemes of education, in cases of dis-
agreement among guardians, are still prescribed in chancery.^
So the rights of the guardian as judge of the place of his ward's
education have been sometimes enforced in equity against the
ward's own wishes.* And the courts are disposed to uphold
the father in his reasonable views against the mother's religious
convictions, or those of the children themselves.^ The father's
educational scheme has been permitted to put restrictions on
the intercourse of a daughter with her own mother.^ Courts of
chancery, in short, have jurisdiction to superintend the educa-
tion of infant children. Yet the English courts seem to have
acted rather for the purpose of securing the control of the child's
education to the proper person, or upholding the father's wishes,
than to make independent regulations of their own according to
the child's welfare." In this respect, as well as in enforcing the
1 Hill V. Filkin, 2 P. Wms. .5. And to keep him there. See Macphers. Inf.
see Blake v. Lei^h, Ambl .306 ; Jac. 121, 141.
264 w. ; In re Bishop, Reg. Lib. 1774, ^ In several late English cases, where
cited in Macphers. Inf. 124. the young children, under the mother's
2 Talbot V. Earl of Shrewsbury, 18 influence, were likely to become either
L. J. 125, per Lord Ch. Cottenham. Roman Catholics or Atheists, chancery
And see Regina v. Clarke, 7 El. & H. interposed to carry out the father's
180; Hawkswnrtli v. Hawksworth, L. wishes and bring them under Protest-
R.6 Ch. 539 ; Clarke Re, 21 Ch. D. 817. ant influence ; and this, notwithstand-
But cf. Agar-Ellis v. Lascelles, L. R. 10 ing a voluntary or judicial separation
Ch. D. 49 ; D'Alton v. D'Alton, L. R. of the parents which had given the
4 P. D. 87. mother the children's custody. Agar-
8 Campbell v. Mackay, 2 Myl. & Cr. Ellis v. Lascelles, L. R. 10 Ch. D. 49;
.'54; Macpliers. Inf. 55-5. Besant In re, L. R. 11 Ch. D. 508. In
* Tremain's Case, Stra. 168 ; Hall <: D'Alton v. D'Alton, L. R. 4 P. D. 87,
Hall, 3 Atk. 721. In Tremain's case, an both parents had been Roman Catho-
" infant " went to Oxford contrary to lies, and the father afterwards became
the orders of his guardian, who wished a Protestant,
him to study at Cambridge. The court s 24 Ch. D. 317.
sent a messenger to carry him from ^ See 2 Story, Eq. Juris. § 1342 ;
Oxford to Cambridge ; and upon his re- WcUesley v. Wellesley, 2 Bligh, n. s.
peated disobedience there went another 124.
tarn to carry him to Cambridge, qnam
340
CHAP. II.] DUTIES OF PARENTS. § 236
disabilities of tlie law against IJoman Catholics and dissenters,
chancery was manifestly influenced by considerations of national
policy.
Should such a subject come before the courts of this country,
they might fairly take a different course, more in accordance
with American legislation. Our municipal laws in general pro-
vide for the infant's educational wants ; and this whole juris-
diction is one of great embarrassment and responsibility. We
do not find a leading American case decided with direct and
sole reference to the education of young children.^ But there
are several late decisions concerning the right of public school
boards to issue general regulations concerning the admission,
suspension, or dismissal of pupils. And in some States the
father of a child may apply for mandamus against the board to
compel them to admit to the public school his child, who has
been unlawfully excluded.^
§ 236. Duty of Maintenance in General. — The third parental
duty is that of maintenance. It is a plain precept of universal
law that young and tender beings should be nurtured and
brought up by their parents ; and this precept have all nations
enforced. So well secured is the obligation of maintenance
that it seldom requires to be enforced by human laws.^ Are
we brought into this world to perish at the threshold by suffer-
ing and starvation ? No ; but to live and to grow. Some one,
then, must enable us to do so ; and upon whom more justly
rests that responsibility than upon those who brought us into
being ? Hence, as Puffendorf observes, the duty of maintenance
is laid on the parents, not only by nature herself, but by their
own proper act in bringing the children into the world. By
begetting them, they have entered into a voluntary obligation
to endeavor, as far as in them lies, that the life which they
have bestowed shall be supported and preserved.*
Maintenance is that support which one person gives to an-
other for his living. This word, used by common-law writers,
1 See the topic of Custody, infra, Babcock, 31 Iowa, 562 ; Hodgkins v.
§ 245 ; Jones v. Stockett, 2 Bland, Rockport, 105 Mass. 475.
409. 3 2 Kent, Com. 189.
- People V. Board of Education, 18 * Puff. Law of Nations, b. 4, eh. 11 ;
Mich. 400. See, further, Burdick v. 1 Bl. Com. 447.
341
§ 237 THE DOMESTIC RELATIONS. [PART III.
corresponds with the civil-law term " aliment." ^ The obligation
on the parent's part to maintain the child continues until the
latter is in a condition to provide for his own maintenance ;
and it extends no further, at common law, than to a necessary
support.^ The Eoman system carried this obligation so far that
it would not suffer a parent at his death totally to disinherit
his child without expressly giving his reasons for so doing.^
And the laws of Athens were to the same purport.* Blackstone
does not appear to approve of carrying natural obligation so far.
And he cites Grotius in support of a distinction which limits
the child's natural right to necessary maintenance ; what is
more than that, depending solely upon the favor of parents, or
the positive constitutions of the municipal law.^ Coke observes
that it is "nature's provision to assist, maintain, and console
the child." "^
§ 237. Maintenance at Common Lav7 ; Statute Provisions. —
The statute 43 Eliz. c. 2, slightly amended by 5 Geo. I. c. 8,
points out the English policy in this respect. It is provided by
this statute that the father and mother, grandfather and grand-
mother, of poor, old, blind, lame, and impotent persons shall
maintain them at their own charges, if of sufficient ability ; and
if a parent runs away and leaves his children, the municipal
authorities, by summary judicial process, may seize upon his
rents, goods, and chattels, and dispose of them toward their
relief.' No person is bound to provide a maintenance for his
issue, except where the children are impotent and unable to
act, through infancy, disease, or accident, and then is only
obliged to furnish them with necessaries, the penalty on refusal
being no more than twenty shillings a month. " For the policy
of our laws, which are ever watchful to promote industry," says
1 Cf. Macphcrs. Inf.210,andFraser, ^ Qrot. De J. B. et P., I. 2, c. 7, n.
Parent & Child, 85. 3 ; 1 Bl. Com. 448.
2 2 Kent, Com. 190 ; 1 Bl. Com. <= See 2 Kent, Com. 190.
448. 7 1 Bl. Com. 448; Stubb v. Dixon,
8 Dig. 28, 230 ; Nov. 115, c. 3. The 6 East, 166 ; Macphers. Inf. 210. These
statutes of some of the United States statutes did not extend to illegitimates
favor this doctrine to nearly the same or stepchildren. Tubb v. Harrison, 4
extent. A child is not disinherited, at T. R. 1 18 ; Cooper v. Martin, 4 East,
least, by mere omission from the will. 76. But this is changed by Stat. 4 &
* 2 Potter, Greek Antiq. 361. 5 Will. IV. c. 76.
342
CHAP. II.] DUTIES OF PAEENTS. § 237
Blackstone, " did not mean to compel a father to maintain his
idle and lazy children in ease and indolence ; but thought it
unjust to oblige the parent against his will to provide them
with superfluities, and other indulgences of fortune ; imagining
they might trust to the impulse of nature, if the children were
deserving of such favors." ^ Lord Eldon, viewing the same
subject afterwards in the light of equity principles, was differ-
ently impressed by these penal provisions, and founded the
jurisdiction of chancery upon the very meagreness of the com-
mon-law remedies against keeping the child from starvation.^
The Stat. 43 Eliz. may be considered as having been trans-
ported to the United States as part of our common law. Its
provisions have also been re-enacted in many of our States, as
in New Hampshire, Connecticut, and South Carolina. In New
York, Massachusetts, and some other States, the provision as
to grandparents is omitted.^ This feeble and scanty provision
of statute law was intended, as Kent observes, for the indemnity
of the public against the maintenance of paupers.* Some local
statutes at this day authorize courts and magistrates to award
to the overseers of the poor the custody of children who are
found to be neglected by their parents and growing up without
education or salutary control.^
In absence of special statutes to the contrary, the father-in-
law is not obliged in this country to maintain his stepchildren,
and consequently is not entitled to their earnings.^ Under the
pauper acts it is held that the father's obligation to support his
1 1 Bl. Com. 449 ; Winston v. New- father." Wellesley v. Duke of Beau-
comen, 6 Ad. & El. 301. fort, 2 Russ. 23 (1827).
2 "Is it," says he, "an eligible ^ 2 Kent, Com. 191, and note ; Dover
thing that children of all ranks should v. McMurphy, 4 N. H. 162 ; Comm'rs
be placed in this situation, that they of Poor v. Gansett, 2 Bail. 320. And
shall be in tlie custodj' of the father ; see Haynes' Adm'r v. Waggoner, 25
although, looking at the quantum of al- Ind. 174.
lowance which the law can compel the * 2 Kent, Com. 191.
father to provide for them, they may ^ Farnham v. Pierce, 141 Mass. 203.
be regarded as in a state little better ^ Commonwealtli v. Hamilton, 6
tlian that of starvation ? The courts Mass. 253, 275 ; Freto v. Brown, 4 //).
of law can enforce the rights of the 675; Worcester v. A^archant, 14 Pick,
father, but they are not equal to the 510 ; Besondy Re, 32 Minn. 385 ; 113
office of enforcing the duties of the 111. 461 ; Bond v. Lockwood, 33 111.
212 ; § 273, post.
343
§ 237 THE DOMESTIC KELATIONS. [PABT III.
vagabond son, who cannot support himself, does not accrue
until after legal proceedings have been instituted ; and the fur-
nishing of previous supplies constitutes no legal consideration
to support a new promise.^ Nor is an insane mother, herself a
pauper, under obligation to support a minor child, or entitled
to his earnings ; ^ indeed, an adult son, under some statutes, is
compelled to support his mother.^
In general, the legal obligation of the father to maintain his
child under the common law ceases as soon as the child is of
age, however wealthy the father may be, unless the child be-
comes chargeable to the public as a pauper.* And as the lan-
guage of Stat. 43 Eliz. rendered it inapplicable to stepchildren,
so does it apply to blood relations only ; and the husband is
not liable for the expense of maintaining his wife's mother,^ nor
the father for his daughter's husband ; ^ nor a man who marries
for his pauper stepchildren.'^ But a quasi parental relation
may sometimes be established ; and one may stand in loco
^parentis to another, and thus become responsible for the main-
tenance and education of the latter, on the principle that the
child is held out to the world as part of his family.^
In a state of voluntary separation, the husband •prima facie,
and not the wife, is liable for the support of children living
with her; and if the wife be justified in leaving her husband's
house and taking the child with her, she may pledge his credit
for the child's necessaries as well as her own, so long as he
neglects to make reasonable effort to regain the child's custody.^
1 Mills V. Wyman, 3 Pick. 207; his health infirm. Templeton j;. Strat-
Loomis V. Newhall, 15 ib. 159. ton, 128 Mass. 137.
2 Jenness r. Emerson, 15 N. H. 486. ^ Rex v. Munden, 1 Stra. 190.
And .see Sanford v. Lebanon, 31 Me. <* Friend u. Thompson, Wrigiit, 636.
124; Farmington y. Jones, 36 N. H. "271. " Brookfield v. Warren, 128 Mass.
8 Smith V. Lapeer Count}-, 34 Mich. 127.
58 ; Dierkes v. Phila., 93 Pemi. St. 270. 8 See post, § 273, as to stepchildren,
See § 265. &c. ; stipra, § 232 ; Ela v. Brand, 63
4 2 Kent, Com. 192 ; Parish of St. N. H. 14.
Andrew v. De Breta, 1 Ld. Raym. 699. » Rumney v. Keyes, 7 N. H. 571;
The father, having a fair capital, may Kimball v. Keyes, 11 Wend. 32;
be liable under statute for the support Walker i'. Laighton, 11 Post. Ill ; Gill
of his adult pauper daughter as of v. Read, 5 R. I. 34-3. And see Rey-
" sufficient ability," even though his nolds v. Sweetser, 15 Gray, 78 ; Grun-
income be less than his expenses and hut v. Rosenstein, 7 Daly, 164.
344
CHAP. II.]
DUTIES OF PARENTS.
§237
But the wife carries no such agency with her when divorced,
though the divorce be for the husband's fault, and from bed and
board only.^ If the wife leaves her husband without cause,
taking the minor child with her, she has apparently no right as
agent to pledge her husband's credit for the child's necessaries,
whatever might be the husband's legal duty of providing for
the child's support.^ And while in case of either separation or
divorce, without orders of custody, the obligation in general
continues as before, it may be materially affected by the special
circumstances of each case ; while a judicial award of children
to the mother should be presumed to carry with it a transfer
of parental duties, as well as of parental rights.^ But a father,
as against the public and his children, cannot, it is often held,
escape the duty of providing for the children's support ; even if
they remain with their mother after divorce.^
1 Hancock i'. Merrick, 10 Cush. 41 ;
Filler v. Filler, 3:'> Penn. St. 50 ; Bur-
ritt V. Burritt, 29 Barb. 124.
2 " In Bazeley v. Forder, L. R. 3 Q. B.
559, it was conceded tliat a wife had
no power to charge her husband for
the support of a child, iinless she was
living apart from him justifiably, and
her power to do it in that case was put
on the ground that the reasonable ex-
penses of the child were part of her
reasonable expenses. But assuming it
to be true, as laid down in several more
or less considered dicta, that the law of
Massachusetts imposes a duty upon a
father to support his children, and
that, wlien he wrongfully turns wife
and children out of doors, his liability
for the latter arises out of that duty
(15 Gray, 78; 136 Mass. 187), still all
the cases show very plainly that, when
the wife leaves without cause, taking
her child with her, the fact that her
husband does not attempt to compel
her to give up the custody of the child
does not of itself authorize her to bind
him for its support." Holmes, J., in
Baldwin v. Foster, 138 Mass. 449
^ Brow V. Briglitman, 136 Mass.
187. Stanton v. Willson, 3 Day, 37, ap-
pears to carry the mother's right much
further ; but its authority is question-
able. We must admit, however, that
in a late English case, presenting a
strong state of facts, a woman who
lived apart from her husband for suf-
ficient cause, having with lier, against
her husband's will, their child, of whom
a court had given her the custody,
was allowed (Cockburn, C. J., dis.) to
pledge the husband's credit for the
child's reasonable expenses ; she hav-
ing no adequate means of support.
Bazeley v. Forder, L. R. 3 Q. B. 559.
See infra, § 239 ; and as to the child's
right to bind as agent, § 241.
* Courtright v Courtright, 40 Mich.
6.33; Conn v. Conn, 57 Ind. 323;
Thomas v. Thomas, 41 Wis. 229;
Welch's Appeal, 43 Conn. 342 ; Buck
V. Buck, 60 111. 105. Local statutes
affect this question considerably ; and
the award of alimony is a matter of
judicial discretion in divorce suits.
When custody of a child is given to
the mother on her divorce from tlie
child's father, the latter, having no
right to the child's services, is free
from liability to the mother for the
child's maintenance. Husband v. Hus-
band, 67 Ind. 583. See p. 351.
345
§ 238 THE DOMESTIC KELATIONS. [PART III.
§ 238. Maintenance, &c., in Chancery ; Allowance from Child's
Fortune. — We pass from maintenance under statute to chan-
cery maintenance, a topic considered in connection with educa-
tion. Maintenance as ordered by courts of equity, or allowed
in settlement of a trust account, has grown into a topic of con-
siderable magnitude, especially under the English system. The
rule is, that where an infant has property of his own, and his
father is dead, or is not able to support him, he may be main-
tained and educated as may be fit, out of the income of property,
absolutely his own, by the person in whose hands the property
is held ; and a court of equity will allow all payments made for
this purpose, which appear upon investigation to have been
reasonable and proper.^ As a general rule, the father must, if
he can, maintain as well as educate his infant children, what-
ever their circumstances may be ; and no allowance will be
made him out of their property, while his own means are ade-
quate for such purposes. This principle is clearly established,
both in England and America.^ And the strict rule of the
common law regarded the parent as without legal right to re-
imbursement for his outlay in this direction.
/ But if the father is unable to maintain his children, the court
I of chancery will order maintenance for them out of their own
' property.^ And where the question turns upon the father's
ability, maintenance is given, not only in case of his bankruptcy
or insolvency, but whenever it appears that he is so straitened
in his circumstances that he cannot give the child a maintenance
and education suitable to the child's fortune and expectations.*
The amount of such fortune, as well as the situation, ability, and
1 Macphers. Inf. 213; 2 Story, Eq. Tex. 565; Ela v. Brand, 63 N. H. 14;
Juris. § 1354. 39 N. J. Eq. 227; Kinsey v. State, 98
2 Macphers. Inf. 145, 219; Welles- Ind. .351 ; 96 N. Y. 201. As to liability
ley V. Beaufort, 2 Buss. 28 ; Butler v. in cultivating a plantation owned in
Butler, 3 Atk. 60; 2 Kent, Com. 191 ; common by father and child, see 34
Darley v. Darley, 3 Atk. 399 ; Cruger La Ann. 326.
V. Hey ward, 2 Desaus. 94 ; Matter of ^ 2 Kent, Com. 191 ; Macphers. Inf.
Kane, 2 Barb. Ch. 375; Addison v. 220.
Bowie, 2 Bland, 606 ; Harland's Case, * Buckworth v. Buckworth, 1 Cox,
6 Rawle, 323 ; Myers v. Myers, 2 Mc- 80 ; Macphers. Inf. 220 ; Newport v.
Cord Ch. 255; Tompkins v. Tompkins, Cook, 2 Ashm. 332; Matter of Kane, 2
3 C. E. Green, .303 ; Tanner v. Skinner, Barb. Ch. 375.
11 Bush, 120 ; Buckley v. Howard, 35
346
CHAP. II.] DUTIES OF PARENTS. § 238
circumstances of the father, will be taken into account by the
court in all such cases. And where a father has himself made
no charge for maintaining his infant children, the court will not
make it for him in order to benefit his creditors.^
Courts now look with great liberality to the state of facts in
each particular case of this kind before them. Thus, there are
precedents in the English courts where the father had a large
income, and yet was allowed for the maintenance of his infant
children, they having an income still larger ; ^ though the in-
creasing liberality of the courts in that country is now chiefly
exhibited in their construction of written directions for main-
tenance now so common in deeds of settlement and other instru-
ments, by which property is secured to the infant.^ In this
country there are many instances where the father has been
allowed for his child's maintenance, though not destitute. As
in a case where the father was guardian of his children, labored
for their support, and had been put to increased expense by the
death of their mother^ And again, where his resources were
very moderate, and the two children, young ladies, had a com-
fortable income between them.^ So where the father was poor
and disabled, and his daughter lived with him.^ Chancery in
all such cases endeavors to pursue the course which is best cal-
culated to promote the permanent interest, welfare, and happi-
ness of the children who come under its care. " And these,"
says Chancellor Walworth, " are not always promoted by a rigid
economy in the application of tlieir income, regardless of the
habits and associations of their period of minority." ' In other
words, to liberally educate and make due use of such social
advantages as the child's own means permit, is incumbent upon
1 Beardsley v. Hotchkiss, 96 N. Y. & Matter of Burke, 4 Sandf. Cli.
201. 617.
2 2 Kent, Com. 191 ; Jervois v. Silk, s Watts v. Steele, 19 Ala. 656. And
Coop. Eq. 52; 2 Story, Eq. Juris, see Godard v. Wagner, 2 Strobh. Eq.
% lSi)4: et seq. ; Greenwell y. Greenwell, 1; Newport v. Cook, 2 Ashm. 3-S2 ;
5 Ves. 194 ; Hoste v. Pratt, 3 Ves. 730; Otte v. Becton, 55 Mo. 99 ; Trimble v.
Ex parte Penleaze, 1 Bro. C. C. 387, n. Dodd, 2 Tenn. Ch. 500; Holtzman v.
3 See Macphers. Inf. 221-223 ; Hey- Castleman, 2 MacArthur, 555 ; Baines
sham V. Heysham, 1 Cox, 179. And v. Barnes, 64 Ala. 375. Cf. 23 N. J.
see Allen v. Coster, 1 Beasl. 201. Eq. 136, 296.
* Harring v. Coles, 2 Bradf. Sur. ' Matter of Burke, 4 Sandf. Ch.
349. 619.
347
§ 238 THE DOMESTIC RELATIONS. [PART III.
every judicious parent, since each child should be trained with
reference to his own opportunities ; and hence a child with for-
tune should not be straitened in his bringing up because the
parent is without one. One may maintain suitable to his own
condition in life, while it is fair that his children sliould be
supported according to theirs.^
The father may be allowed for the expenses of past main-
tenance and education, if special circumstances exist ; not other-
wise, according to the English rule of the present day.^ • But
the father's non-residence, and consequent inability to make a
seasonable application for maintenance, is held a special circum-
stance to justify such allowance.^ While the old rule was to
make no allowance for past maintenance, that rule, with the
increase of wealth and liberal living, has been greatly relaxed
in modern times. In this country, too, as to retrospective al-
lowance, chancery does not appear to be very strict as concerns
the parent, though special circumstances should always be
chosen for making it.^ Every such case must depend on its
own facts. We apprehend that, both in England and America,
maintenance would be allowed the parent from the estate of a
full-grown child only on proof of some contract.^
A father, even if he be not in needy circumstances, may
maintain his children out of any fund which is duly vested in
him for that express purpose.^ One may also contract that
certain property shall be applied to the maintenance and edu-
cation of his children, in which case also the contract may be
enforced in his favor, without regard to the question of ability ;
and €n this ground provisions for maintenance in an antenuptial
settlement have been construed in favor of the husband and
1 See Haase v. Roerschild, 6 Iiid. « Matter of Kane, 2 Barb. Ch. 375 ;
67 ; Sparhavvk i'. Sparhawk's Ex'r, 9 Matter of Burke, 4 Sandf Ch. 619 ;
Vt. 41. Myers v. Myers, 2 McCord Ch. 214 ;
2 2 Story, Eq. Juris. Redf.ed§ 1354 «; Trimble v. Dodd, 2 Tenn. Ch. 500;
Carmiohael v. Hughes, 6 E. L. & Eq. Otte v. Becton, 55 Mo. 99.
73, per Lord Cranworth ; Ex parte ^ See In re Cottrell's Estate, L. R.
Bond, 2 Myl. & K. 439; Brown v. 12 Eq. 560 ; !nfra,c.5; Otte v. Becton,
Smith, L. R. 10 Ch. D. 877. 55 Mo. 99.
3 Carmiohael v. Huglies, 6 E. L. & ^ Macphers. Inf. 220 ; Hawkins v.
Eq. 71. And see Stopford v. Lord Watts, 7 Sim. 199; Andrews v. Par-
Canterbury, 11 Sim. 82; Bruin y. Nott, tington, 2 Cox, 223; Kendall v. Ken-
1 Phill. 572 ; 1 Tamlyn, 22. dall. 60 N. H. 527.
348
CHAP. II.] DUTIES OF PARENTS. § 239
father.^ But it is clear, from the cases, that where the fund is
given as a mere bounty, notwithstanding a provision for main-
tenance, the father, if of ability, must support the child ; ^ and
this principle is extended to the father's postnuptial and vol-
untary settlement upon his children as distinguished from
antenuptial contracts.^ This will not prevent a court from
construing such provisions in a father's favor, where the facts
show that he ought, on general principles, to receive assistance.*
Where the trustee for an infant, in the exercise of rightful dis-
cretion, has paid over to the father, at his request, certain sums
of money out of the income of the trust property, the father
being a bankrupt, it is held that no promise can be implied
under such circumstances, on the part of the father, to repay
to the trustee the sums of money thus applied when he after-
wards becomes able to do so ; there should be something to
show an express promise of repayment.^
§ 239. Chancery Maintenance as to Mother ; Separated Par-
ents, &c. — The mother, after the death of the father, remains
the head of the family. She has the like control over the '
minor children as he had when living ; and she is then bound
to support them, if of sufficient ability.^ This we hold to be
the rule most conformable to natural justice ; though there are
cases and statutes which would seem to exempt her from such
obligations^ The statute of Elizabeth, to which we have
already referred, expressly includes the mother. And since
the tendency of the day is to give the mother a more equal
share in the parental rights, it follows that she should assume
more of the parental burdens. It is nevertheless clear that
the courts sliow special favor to the mother, as they should ;
and if the child has property, they will rather in any case
1 Miinily V. Earl Howe, 4 Bro. C. C. * See Andrews v. Partington, 2 Cox,
224; Stocken v. Stoeken, 4 Sim. 152; 223, commented upon in Hoste v. Pratt,
Macphers. Inf. 220 ; Ransome v. Bur- 3 Ves. 729.
gess, L. R. 3 Eq. 773. ^ Pearce v. OIney, 5 R. I. 269. See
2 Hoste V. Pratt, 3 Ves. 729 ; Ham- Tn re Stables, 13 E. L. & Eq. 61.
ley V. Gilbert, Jac. 354; Myers v. ^ y)e(]iiam y. Natick, 16 Mass. 140.
Myers, 2 McCord Ch. 255; Jones v. "^ Whipple i'. Dow, 2 Mass. 415;
Stockett, 2 Bland, 409. Dawes v. Howard, 4 Mass. 97 ; 2 Kent,
8 In re Kennison's Trusts, L. R. 12 Com. 191, and cases cited ; supra,
Eq. 422. § 237.
349
§ 239 THE DOMESTIC RELATIONS. [PART III.
charge the expenses of his education and maintenance upon
such property than force her to contribute.^ A court of chan-
cery will not readily make the support and education of infant
children a charge upon the property of their widowed mother,
nor upon that of a stepfather who has not undertaken to stand
in place of a father, while their own means are ample.^ In
such connection it is worth considering whether the child
renders any valuable services to a remarried mother or step-
father, or confers a right to such services.^ In general, a mar-
ried woman is not liable for the support and education of her
children during the lifetime of a husband ; and if she renders
such support she is entitled, at all events, to an allowance from
the estates of the children.*
Where the court takes away from the father the care and
custody of the children, chancery does not call in aid of their
own means the property of the father, and it directs mainte-
nance out of their own fortunes, whatever may be their father's
circumstances.^ But it is held in Illinois that where infants
are taken from the custody of their father, and have no property
of their own, the father is bound to support them at such rate
as the court may order.^ Local statutes sometimes affect the
rule in this country ; while in the divorce courts an order of
1 Ih. ; Haley r. Bannister, 4 Madd. his fortune. Bruin v. Knott, 9 Jur.
275; Huglies v. Hughes, 1 Bro. C. C. 979. Slie may have made a gift of
338. And see Lanoy v. Duchess of maintenance to him so as to be pre-
Athol, 2 Atk. 447 ; Ex parte Petre, 7 eluded from claiming anything after-
Ves. 403 ; Macphers. Inf. 224 ; Beasley wards by way of recompense. In re
r. Magrath, 2 Sch & Lef. 35 ; Anne Cottrell's Estate, L. R. 12 Eq. 566.
Walker's Matter, Cas. temp. Sugd. But in any case the widowed mother is
299. Mother's discretion overruled, entitled to a reasonable allowance out
In re Roper's Trusts, L. R. 11 Ch. D. of her clnldren's estate for their main-
272. tenance, where her own means are lim-
2 Mowbray v. Mowbray, 64 111. 883. ited. Wilkes v. Rogers, 6 Johns. 566 ;
A widow, on her remarriage, is not lia- Heyward v. Cuthbert, 4 Desaus. 445 ;
ble for the maintenance of a child by a Osborne v. Van Horn, 2 Fla. 360 ; Brad-
former husband Besondj' /?p, 32 Minn, shaw v. Bradshaw, 1 Russ. 528.
385. Wliere a mother has maintained ^ Englehardt v. Yung, 76 Ala. 534.
her infant child without the order of tlie * Gladding v. Follett, 95 N. Y. 652.
court, it is held that, upon his decease, ^ Wellesley v. Duke of Beaufort, 2
she can claim for past maintenance Russ. 1 ; Maci)hers. Inf. 224.
only such sum as will effectually in- ^ Cowls r. Cowls, 3 Gilm. 435. And
demnify her for what she has spent, see si/;);a, p. 345; McCarthy i-. Hinman,
without reference to the amount of 35 Conn. 538.
350
CHAP. II.] DUTIES OF PARENTS. § 240
maintenance for children will sometimes be made on somewhat
the same principle as alimony for the wife, notwithstanding the
guilty husband loses their custody.^ Consonant with American
policy, where the custody of the minor child has been given to
the mother by the court, the father is no longer legally liable for
the support of the child, apart from an order of maintenance.^
If the father is alive and not able to maintain his child,
maintenance will be allowed without considering the ability
of the mother, though she may have a separate income.^ And
even the misconduct of the father will not always exclude him
from the benefits of his child's fortune.*
§ 240. Chancery Maintenance ; Income ; Fund. — Courts of
chancery, following a well-known principle, usually restrict the
extent of a child's maintenance to the income of his property.^
But where the property is small, and the income insufficient
for his support, the court will sometimes allow the capital to
be broken ; ^ though rarely for the purpose of a child's past
maintenance when his future education and support will be left
thereby unprovided for.'
We have assumed, in the cases already considered, that there
was some fund in which the infants had an absolute right or
interest. Where the interest is merely contingent the rule is
necessarily strict.^ Maintenance cannot be allowed to infants
out of a fund which, upon the happening of the event contem-
plated by the testator in the bequest of the fund, will not
belong to the infants but to some other person.^
1 Milford 1-. Milford, L. R. 1 P. & D. e lb. ; Barlow v. Grant, 1 Vern. 255;
715 ; Schouler, Hiis. & Wife, § 555 ; Bridge v. Brown, 2 You. & C. C. 181 ;
Wilson V. Wilson, 45 Cal. 399; Holt i'. Ex parte Green, 1 Jac. & W. 253; Os-
Holt, 42 Ark. 495. borne v. Van Horn, 2 Fla. 360 ; New-
2 Brow V. Brightman, 136 Mass. 187. port v. Cook, 2 Ashm. 332. See In re
9 Macphers. Inf. 224 ; Haley y. Ban- Coe's Trust, 4 Kay & J. 199; Matter
nister, 4 Madd. 275. of Bostwick, 4 Johns. Ch. 100 ; Don-
* .Macphers. Inf. 251. See Allen v. ovan v. Needham, 15 L. J. 19-3. The
Coster, 1 Beav. 202. terms of the trust may impose special
As to the mother's claim for allow- restrictions. McKnight v. Walsh, 23
ance for the child's support out of lands N. J. Eq. 136.
devised to the child, who died, leaving 7 gee Otte v. Becton, 55 Mo. 99;
the parents (who had separated) the sole Cox i". Storts, 14 Bush, 502.
heirs, see Pierce v. Pierce, 64 Wis. 73. » Ex parte Kebble, 11 Ves. 604.
5 2 Story, Eq. Juris. § 1355; Mac- » lb. ; Errat v. Barlow, 14 Ves. 202;
phers. Inf. 252. Turner i'. Turner, 4 Sim. 430 ; Matter
351
§ 241 THE DOMESTIC RELATIONS, [PART IH.
§ 241. Whether Child may bind Parent as Agent; Child's
Necessaries. — Let US here inquire how far the child may bind
his father as agent. A father is not bound by the contracts
or debts of his son or daughter, even for necessaries, as a rule,
unless the circumstances show an authority actually given or
to be legally inferred.^ The principles of agency as between
father and child might seem analogous to those which govern
the relation of husband and wife ; which last have already been
considered at some length. On the one hand, the father should
be compelled to discharge his legal and moral obligations as
a parent, by providing suitable necessaries ; on the other, he
should not be prejudiced by the acts of his imprudent child.
If, then, the infant child resides at home, it is to be presumed
that the father furnishes whatever is necessary and proper for
his maintenance ; and a proper support being rendered, under
such circumstances, a third person cannot supply necessaries
and charge the father. So far, all is clear. Wherever the
infant is sub potestate parentis in fact, there must be a clear
and palpable omission of duty in this respect, on the part of
the parent, to render him chargeable, unless he has conferred
actual authority or made express contract.^ The converse of
this rule has more than once been suggested in our American
courts; namely, that where the father abandons his duty, so
that his infant child is forced to leave his house, he is liable for
a suitable maintenance furnished the child elsewhere.^ And
upon this doctrine was a Connecticut case based many years
ago, where an infant child had " eloped " from his father's house
of Davison, 6 Paige, 136. Where the 483; Tomkins v. Tomkins, 3 Stockt.
father has permitted the chihl to squan- 512 ; Van Valkenburg v. Watson, 13
der sums paid regularly for mainte- Johns. 480 ; Mortimore r. Wright, 6 M.
nance, he cannot claim reimbursement. & W. 482 ; Kelley v. Davis, 49 N. H.
3 Dem. (N. Y.) 556. As to rule of pro- 187.
cedure in securing maintenance, see '^ Tomkins r. Tomkins, 3 Stockt.
Macplicrs. Inf. 214 c< seg., and works on 512; Townsend v. Burnham, 33 N. H.
equity procedure. Maintenance is fur- 27 ; Clinton v. Rowland, 24 Barb. 634 ;
ther considered under Guardian and Keaton v. Davis, 18 Geo. 457 ; Gotts v.
Ward, post, § 337. Clark, 78 111. 229 ; Rogers v. Turner,
1 2 Kent, Com. 192; Cromwell v. 58 Mo. 116.
Benjamin, 41 Barb. 558; Gordon v. 8 Owen v. White, 5 Port. 435, and
Potter, 17 Vt. 348; Pidgin ;;. Cram, 8 cases cited in the two preceding notes.
N. H. 350 ; Raymond v. Loyl, 10 Barb.
352
CHAP. II.] DUTIES OF PARENTS. § 241
for fear of personal violence and abuse ; and his necessary-
support and education were furnished by a stranger.^ It must
be admitted that this doctrine of an implied agency, against the
father's wishes, such as the common law raises for the wife's
protection, ought hardly to be extended in an equal degree to
persons too young to be sui juris ; that the theory above ad-
vanced is supported rather by dicta than positive adjudication ;
and that whenever applied, such a rule is to be justified rather
by public policy than the well-understood liabilities of the
father, as defined by Blackstone. We look at the reports and
find that in nearly every instance the father was held to be
discharged from the obligation, or else was made liable on other
grounds. There can be no doubt that a parent is under a nat-
ural obligation to provide necessaries for his minor children.
But how that obligation is to be enforced is not so clear.^ In
Vermont this doctrine of implied agency, against the father's
wishes, was disapproved in a case which discusses the subject
fully ; though the facts, it must be conceded, showed no clear
omission of parental duty.^ In fine, either an express promise,)
or circumstances from which si promise by the father can bei
inferred, is essential"*
The latest English decisions are clearly against allowing the
child to pledge his father's credit for necessaries to enforce a
moral obligation. There must be some contract, express or im-
plied, in order to charge him. If a child be turned upon the
world by his father, he can only apply to the parish, and they
will compel the father, if of ability, to pay for his support. Says
Lord Abinger : " In point of law, a father who gives no author-
ity, and enters into no contract, is no more liable for goods sup-
1 Stanton v. Willson, 3 Day, ,37. man v. Robinson, 38 N. J. L. 383 ; Tom-
But the point decided was a different kins ;•. Tomkins, 3 Stockt. 517. As to
on^- tlie wife's authority to bind her hns-
2 1 Bl. Cora 447 ; Edwards v. Davis, band for the child's necessaries, see
16 Johns. 285 ; In re. Ryder, 11 Paige, Schouler, Hus. & Wife, § 101 ; supra,
188; 2 Kent, Com. 190. In New York §§ 61, 237, 239 One wlio encourages
there is some confusion of opinion, wife and child to live apart from the
Cf. Raymond v. Loyl, 10 Barb. 483, husband and father is tlie less entitled
with New York cases, supra. to recover for the necessaries of either.
3 Gordon v. Potter, 17 Vt. 348. Schnuckle v. Bierman, 89 111 454.
* McMlUen v. Lee, 78 111.443; Free-
23 353
§ 241 THE DOMESTIC RELATIONS. [PAET Ul.
plied to his son, than a brother, or an uncle, or a mere stranger
would be. From the moral obligation a parent is under to pro-
vide for his children, a jury are, not unnaturally, disposed to in-
fer against him an admission of a liability in respect of claims
upon his son, on grounds which warrant no inference in point
of law." ^
But very slight evidence may sometimes warrant the infer-
ence that a contract for the infant's necessaries is sanctioned by
the father ; so zealous is the court to enforce a moral obligation
wherever it can. English authority to the same effect is not
equally pointed ; ^ but the American rule is certainly humane
and liberal in this respect. Thus, the father is held bound for
necessaries, where he knows the circumstances, and makes no
objection.^ And for the expenses of education and maintenance
furnished on his general consent, and in his negligence.* So,
too, being liable once to a third person, the father may be held
liable afterwards by implication, unless his revocation is made
clear and consistently adhered to.^ Doubtless any father may
contract for supplies, necessary or unnecessary, on his child's
account, if he choose to.®
Yet the rule of principal and agent is to be reasonably en-
forced ; and in all cases where there appears neither palpable
moral delinquency on the part of the parent, nor evidence of
authority actually conferred upon his son, nor a contract by the
parent himself or his other agents, the parent cannot be held
liable for the general contracts of the child. A conditional offer
to pay for goods ordered of a stranger by the child must have
1 Mortimore r. Wright, 6 M. & W. vorced wife, who retains the children.
482. And see Shelton v. Springett, 11 Courtrigiit v. Courtriglit, 40 Mich 633.
C. B. 452; 20 E. L. & Eq. 281 ; Sea- Cf. Baldwin v. Foster, 138 Mass. 449.
borne v. Maddy, 9 Car. & P. 497. * Thompson v. Dorsey, 4 Md. Ch.
2 Blackburn r. Mackey, 1 Car. & 149.
P. 1 ; Law ;;. Wilkin, 6 Ad. & El. 781 ; ^ Plotts v. Rosebury, 4 Dutch. 146 ;
cases of doubtful legal authority. See Murphy v. Ottenheimer, 84 111. 39.
Macphers. Inf 514, 515. And see Deane v. Annis, 14 Me. 26.
* Swain v. Tyler, 26 Vt 9; Thayer Notice to a third person may be waived
V. White, 12 Met. 343 ; Fowlkes v. afterwards by the parent's acts. Bailey
Baker, 29 Tex. 135. As where he v. King, 41 Conn. 365.
knew that another was boarding his " Bryan ;;. Jackson, 4 Conn. 288.
minor child with expectation of re- And see Brown v. Deloach, 28 Ga.
ward. Clark v. Clark, 46 Conn. 586. 486; Deane v. Annis, 14 Me. 26; Har-
Or upon written agreement with his di per v. Lemon, 38 Ga. 227.
354
CHAP. II.] DUTIES OF PARENTS. § 242
been clearly accepted in order to constitute such ratification as
will bind the parent who makes it.^ And in numerous instances
have courts refused to make the father liable on the ground of
an implied agency to the child.^ So where a child has attained
full age, the presumption is that he will bind himself by his
own contracts, ^nder the latter circumstances, a mere request
to furnish necessaries does not bind the father, though the son
be living with him ; while it is very clear that the father may
even thus bind himself by his own independent promise.^
Whenever a minor son or daughter has left the father's home,
the cause should be ascertained; for the disobedience of children
is not to be encouraged in any event.* Under the most favora-
ble aspect of the infant's right to bind his father as agent, a third
person furnishing goods must take notice, at his peril, of what
is necessary for the infant according to his precise situation.^
And the oral promise of a father to pay a debt of his child not
incurred for necessaries, in consideration of the creditors for-
bearing to sue the child, must be treated as a promise to pay
the debt of another, and hence, under the statute of frauds, not
enforceable.^
§ 242. Duty of Providing a Trade or Profession. — The parent's
duty, according to some authorities, also extends to providing the
children with a profession or trade as well as a suitable educa-
tion. How far the duty of competent provision extends, must
depend upon the condition and circumstances of the father.
^ Andrews v. Garrett, 6 C. B. n. s. ^ Van Valkenburgh v. Watson, 13
262. Johns. 480; Gotts v. Clark, 78 III. 229.
2 Eitel V. Walter, 2 Bradf. Sur. 287 ; Cf. Murphy v. Ottenheimcr, 84 III. 39.
Raymond r. Loyl, 10 Barb. 483; Bush- ^ Dexter v. Blanchard, 11 Allen,
nell c Bishop Hill Colony, 28 III. 204 ; 365. Goods being sold to the minor
Tyler v. Arnold, 47 Mich. 564. See without the father's knowledge, order,
Loomis >: Newhall, 15 Pick. 159. or consent, his subsequent promise to
3 Boyd V. Sappington, 4 Watts, 247; pay therefor is without binding consid-
Patton V. Hassinger, 69 Penn. St. 311. eration. Freeman v. Robinson, 88 N.
And see Mills v. Wyman, 8 Pick. 207 ; J. L. 383.
Wood V. Gills, Coxe, 449 ; Norris v. This rule of agency is sometimes
Dodge's Adm'r, 28 Ind. 190; Kernodle allowed to operate for the parent's own
V. Caldwell, 46 Ind. 153; White v. benefit as against a third party; the
Mann, 110 Ind. 74. child who could not bind himself being
* Raymond v. Loyl, 10 Barb. 483 ; treated as the parent's agent. Darling
Angel V. McLellan, 16 Mass. 28 ; Weeks v. Noyes, 32 Iowa, 96.
V. Merrow, 40 Me. 151.
355
§ 244 THE DOMESTIC RELATIONS. [PAET III.
Kent observes that this duty is not susceptible of municipal
regulations, and is usually left to the dictates of reason and
natural affection.^
§ 242 a. Liability for Minor Child's Funeral £:spenses. — A
father is, in general, liable for the decent funeral expenses of his
deceased minor child.^
CHAPTER III.
THE RIGHTS OF PAEENTS.
§ 243. Foundation of Parental Rights. — The rights of parents
result from their duties, being given them by law partly to aid
in the fulfilment of their obligations, and partly by way of rec-
ompense.^ As they are bound to maintain and educate, the law
has given them certain authority over their children, and in the
support of that authority a right to the exercise of such discipline
as may be requisite for the discharge of their important trust.
This is the true foundation of parental power.^
§ 244. Parental Right ; Chastisement ; Indictment for Cruelty,
&c. — Some of the ancient nations carried the parental author-
ity beyond all natural limits. The Persians, Egyptians, Greeks,
Gauls, and Romans tolerated infanticide. Under the ancient
Roman laws the father had the power of life and death over his
children, on the principle that he who gave had also the power
to take away ; ^ and thus did law attribute to man those func-
tions which belong only to the Supreme Being. This power of
the father was toned down in subsequent constitutions, and in
the time of the Emperor Hadrian the wiser maxim prevailed,
" Patria potestas in piet.afc debet, non in atrocitnte consistere ; "
for which reason a father was banished who had killed his son.
1 2 Kent, Com. 202. 3 1 Bl. Com. 452.
2 See Sullivan v. Horner, 41 N. J. * 2 Kent, Com. 203.
Eq. 299; 108 Penn. St. 247; supra, 5 Cod. 8, 47, 10; 1 Bl. Com. 452.
§§ 199, 211.
356
CHAP. III.] RIGHTS OF PARENTS. § 244
The Emperor Constantine made the crime capital as to adult
children ; and infanticide was under Valentinian and Valens
punishable by death. Thus was the doctrine of paternal
supremacy gradually reduced, though at the civil law never
wholly abandoned.^
The common law, far more discreet, gives the parent only a
moderate degree of authority over his child's person, which au-
thority relaxes as the child grows older. With the progress of
refinement, parents have learned to enforce obedience by kind-
ness rather than severity ; and although the courts are reluctant
to interfere in matters of family discipline, they will discounte-
nance every species of cruelty which goes by the name of paren-
tal rule. The common law gives the right of moderate correction
of the child in a reasonable manner ; " for," it is said, " this is
for the benefit of his education." ^ But at the same time the
parent must not exceed the bounds of moderation, and inflict
cruel and merciless punishment ; for if he do, he is lial)le to be
punished by indictment.^ And he may be found guilty of man-
slaughter, or even murder, under gross circumstances.* Thus,'
where a father put his child, a blind and helpless boy, in a cold
and damp cellar, without fire, during several days in midwinter,
giving as his only excuse that the boy was covered with vermin,
he was rightly held subject to indictment and punishment for
such wanton cruelty.^
So may a parent at the common law be indicted for exposure
and neglect of his children ; and the heinousness of the offence
depends in a great measure upon the proof of simple negligence
or wilful cruelty. The parent, too, who suffers his little child
1 1 Bl. Com. 452; 2 Kent, Com. Wis. 150; Danenhoffer v. State, 69
204; 1 Heinec. Antiq. Rom Jur. 9; Dr. Ind 29-5.
Taylor, Civ. Law, 403-406 ; Forsyth, ^ fjie law reluctantly interferes in
Custody, 3. such cases unless the parental chastise-
2 1 Hawk. P. C. 1.30 ; 1 Bl. Com. ment produces permanent injury or
452. One in loco parentis, us a stepfAther was maliciously inflicted. State v.
may become, has the right of moderate Jones, 95 N. C. 588.
correction. Gorman v. State, 42 Tex. * 1 Russ. Crimes, Grea. ed. 490 ;
221 ; State v. Alford, 68 N. C. .322. Regina r. Edwards. 8 Car. & P. 611 ; 2
And see, as to the analogous case of a Bish. Crim. Law, § 714.
school teacher, State v. Burton, 45 ^ Fletcher v. People, 52 111. 395;
Johnson v. State, 2 Humph. 283.
357
§ 245 THE DOMESTIC RELATIONS. [PART III.
to starve to death, commits murder.^ But the child's tenderness
of age and helplessness are elements in such cases ; and when
children grow up they are presumed to provide for their urgent
wants.
§ 245. Parental Custody ; Common-law Rule ; English Doc-
trine. — The topic of parental custody is one of absorbing im-
portance in England and America ; and its principles have
received the most ample discussion in the courts of both coun-
tries. The fundamental principle of the common law was that
the father possessed the paramount right to the custody and
control of his minor children, and to superintend their educa-
tion and nurture.^ The mother, as such, had little or no
authority in the premises.^ The Eoman law enjoined upon
children the duty of showing due reverence and respect to the
mother, and punished any flagrant instance of the want of it ;
but beyond this it seems to have recognized no claim on her
part.* Indeed, the father is permitted by Anglo-Saxon policy
to perpetuate his authority beyond his own life ; for he may
constitute a testamentary guardian of his infant children.^
In case there is no father, then the mother is entitled to the
custody of the children ; supposing, of course, the rights of
no testamentary guardian intervene.^ She has, as natural
guardian, a right to the custody of the person and care of the
education of her children ; " and this in all countries," said
Lord Hardwicke, " where the laws do not break in." "^ The
priority of the surviving mother's right to custody is frequently
1 4 Bl. Com. 182, 183; 2 Bishop, 8 See 1 Bl. Cora. 453.
Crim. Law, §§ 688, 712; Regina v. * Cod. 8, tit. 47, § 4 ; Forsyth, Cua-
White, L. R. 1 C. C. 311. Wilfully tody, 5.
permitting a diild's life to be endan- ^ Stat. 12 Car. II. c. 24, re-enacted in
gered for want of proper food or medi- most of the United States. See Guar-
cal treatment, legislation sometimes dian and Ward, infra, §§ 332, 333.
makes an indictable offence as against •> See Guardian and Ward, wfra.
a parent or one in his stead. Cowley "^ Villareal ?-. Mellish, 2 Swanst. 536;
r. People, 83 N. Y. 464. Forsyth, Custody, 11, 100 ; 2 Kent, Com.
2 Ex parte Hopkins, 3 P. Wms. 151 ; 506; People v. Wilcox, 22 Barb. 178 ;
2 Story, Eq. Juris. §§ 1341, 1342; 2 Osborn v. Allen, 2 Dutch. 388. So
Kent, Com. 205 ; Forsyth, Custody, 10 ; where the father is sentenced to trans-
People V. Olmstead, 27 Barb. 9, and portation. Ex parte Bailey, 6 Dowl.
cases cited ; Ex parte M'Clellan, 1 P. C. 311.
Dowl. P. C. 34.
358
CHAP. III.j EIGHTS OF PARENTS. § 246
a matter of statute regulation ; ^ but her absolute right on re-
marriage is not so clearly recognized. Her claims, as we shall
see hereafter, may conflict with those of a guardian.
§ 246. Chancery Jurisdiction in Custody ; Common Law^ Over-
ruled. — Were these invariable rules, uncontrolled by the courts,
unchanged by statute, this common-law doctrine of custody
would be as simple of application as unjust. It is neither.
And the courts of chancery, in assuming a liberal jurisdiction
over the persons and estates of infants, soon made the claims of
justice override all considerations of parental or rather paternal
dominion, at the common law.^ Thus Lord Thurlow, in a case
where it appeared that the father's affairs were embarrassed,
that he was an outlaw and resided abroad, that his son, an in-
fant, had considerable estate, and that the mother lived apart
from her husband and principally directed the child's education,
restrained the father from interfering without the consent of
two persons nominated for that purpose ; and with reference to
the objection that the court had no jurisdiction, he added that
he knew there was such a notion, but he was of opinion that
the court had arms long enough to reach such a case and to
prevent a father from prejudicing the health or future prospects
of the child ; and he signified that he should act accordingly.^
But the leading case on this subject is that of Wellcslcy v. The
Duke of Bemifort, which went on appeal from Lord Eldon to
the House of Lords ; and in which the learned Lord Chancellor's
judgment was unanimously affirmed.'*
1 2 & 3 Vict. c. 54 ; Mass. Gen. Sts. Macclesfield, to the effect that where
C.109, §4; State I'. Scott, 10 Fost. 274; there is reasonable ground to believe
Striplin v. Ware, 26 Ala. 87. See Hey- that the cliildren would not be properly
ward V. Cuthbert, 4 Desaus. 445. treated, the court -.vould interfere with-
2 2 Story, Eq. Juris. § 1341. And out waiting further, upon tiie principle
see Butler v. Freeman, Ambl. 302. that preventing justice was better than
3 Creuze v. Hunter, 2 Bro. C. C. punisldmj justice. Duke of Beaufort u.
499, n. ; 2 Cox, 242. And see Whitfield Berty, 1 V. Wms. 703, cited in Welles-
V. Hales, 12 Ves. 492. ley v. Duke of Beaufort, supra.
* 2 Russ. 1 ; Wellesley v. Wellesley, The evidence showed that the con-
2 Bligh, N. s. 124. duct of the father was of the most
In this latter case cliildren were profligate and immoral description. It
taken from a father who was living in appeared that he had ill-treated his
adultery. In the course of his elabo- wife, continued his adulterous connec-
rate judgment in this case, Lord Eldon tion to the time of judicial proceedings,
cited with approbation a dictum of Lord and in his letters to his young children
359
§ 246 THE DOMESTIC RELATIONS. [PART III.
But the result of the English authorities is to establish the
principle, independently of statutory provisions, that the Court
of Chancery will interfere to disturb the paternal rights only in
cases of a father's gross misconduct ; such misconduct seeming,
however, to be regarded with reference rather to the interests
of the child than the moral delinquency of the parent. If the
father has so conducted himself that it will not be for the bene-
fit of the infants that they should be delivered to him, or if their
being with him will injuriously affect their happiness, or if they
cannot associate with him without moral contamination, or if,
because they associate with him, other persons will shun their
society, the court will award the custody to another.^ It is
held that chancery has nothing to do with the fact of the
father's adultery, unless he brings the child into contact with
the woman. 2 But unnatural crime is otherwise regarded.*
Atheism, blasphemy, irreligion, call for interference, when the
minds of young children may be thereby poisoned and cor-
rupted ; although in matters of purely religious belief there is
of course much difficulty in defining that degree of latitude
which should be allowed. Says Lord Eldon, " With the reli-
gious tenets of either party I have nothing to do, except so
far as the law of the country calls upon me to look on some
religious opinions as dangerous to society." *
Mere poverty or insolvency does not furnish an adequate
ground for depriving the father of his children ; not even
though a fund is offered for their benefit, conditioned upon the
had frequently encouraged them in ' Anonymous, 11 E. L. & Eq. 281
habits of swearing and keeping low s. c. 2 Sim. n. s. 54 ; Forsyth, Custody
company. Lord Redesdale, in the 52; De Manneville v. De Manneville
course of his opinion before the House 10 Ves. 52 ; Warde v. Warde, 2 Phil
of Lords, repudiated emphatically the 786.
insinuation that paternal power is to be '^ Ball v. Ball, 2 Sim. 35; Lord El
considered more than a trust. " Look don, n. 6 to Lyons r. Blenkin, Jac. 254
at all the elementary writings on the The English divorce act indicates the
subject," he adds: "they say that a peculiar views prevalent in that coun
father is entrusted with the care of his try as to adultery committed by a mar-
children ; that he is entrusted with it ried man. Schouler, Hus. & Wife
for this reason, because it is supposed § 506.
his natural affection would make him ^ Anonymous, HE L. & Eq. 281
the most proper person to discharge the 8. c. 2 Sim. n. s. 34.
trust." Wellesley v. Wellesley, 2 Bligh, * Lyons v. Blenkin, Jac. 256. See
NT. s 141 (1828). supra, pp. 295, 320, notes.
360
CHAP, in.] EIGHTS OF PARENTS. § 247
surrender of their custody.^ Yet so solicitous is chancery for
the welfare of its wards, that it seems indisposed to sacrifice
their large pecuniary opportunities to the caprice of the natural
protector. Thus far has chancery carried its exception, that if
property be settled upon an infant, upon condition that the
father surrenders his right to the custody of its person, and he,
by acquiescing for a time, and permitting the child to be edu-
cated in a manner conformably to the terms of the gift or
bequest, encourages corresponding expectations, he will not be
allowed to disappoint them afterwards by claiming possession
of the infant. He has in such a case " waived his parental
right." 2
§ 247. Custody ; English Rule ; Statute. — The English rule,
up to the year 1839, was therefore that the father is entitled
to the sole custody of his infant child ; controllable, in general, i
by the court only in case of very gross misconduct, injurious J
to the child. Such a state of things was unjust, since it took
little account of the mother's claims or feelings in a matter
which most deeply interested her. This finally led to the pas-
sage of Stat. 2 & 3 Vict. c. 54, known as Justice Talfourd's Act,
which introduced important changes into the law of parental
custody,^ but does not appear to have interfered with the
1 Ex parte Hopkins, 3 P. Wms. 152; 457; s. c. 12 Jur. 71o; Rex v. Green-
Colston V. Morris, Jac. 2bl, n. 11; hill, 4 Ad. & El. 624. Lord Mansfield
Macpiiers. Inf. 142, 14?.; Forsytli, Cus- once said that the common-haw court is
tody, 37 ; Earl & Countess of West- not bound to deliver an infant, when
meath, Jac. 251, n. c. But see Ex parte set free from illegal restraint, over to
Mountfort, 15 Ves. 445. anybody, nor to give it any privilege.
2 Per Lord Hardwicke, Blake v. Rex r. Delarel, 3 Burr. I486; 1 W. Bl.
Leigh. Anibl. 307 ; Powell v. Cleaver, 2 409. But the later English rule is that
Bro. C. C. 499 ; Creuze i'. Hunter, 2 where a clear right to the custody is
Cox, 242; Forsyth, Custody, 38, 53; shown to exist in any one, the court
Lyons v. Blenkin, Jac. 254, 262. has no choice, but must order the in-
The English courts of common law fant to be delivered up to him. Rex v.
likewise interfere in questions relating Isley, 5 Ad. & El. 441. This jurisdic-
to the custody of infants by writ of tion is less ample than that of the chan-
habeas corpus, which, in general, lies to eery courts, to whose autliority it must
bring up persons who are in custody, be considered subservient. See Wel-
and who are alleged to be subject to lesley v. Wellesley, 2 Bligh, n. s. 186,
illegal restraint. Macphers. Inf. 152; 142; .Rr parte Skinner, 9 Moore, 278.
Ex parte Glover, 4 Dowl. P. C. 293; 3 £x parte Woodward, 17 Jur. 56;
Forsyth, Custody, 17, 54 ; In re Pul- Forsyth, Custody, 137. See Forsyth,
brook, 11 Jur. 185 ; In re Fynn, 2 De G. ih. 139, 140.
361
§ 248 THE DOMESTIC RELATIONS. [PART IH.
father's right of custody further than to introduce new ele-
ments and considerations under which that right is to be exer-
cised. This act proceeds upon three grounds : First, it assumes
and proceeds upon the existence of the paternal right. Secondly,
it connects the paternal right with the marital duty, and imposes
the marital duty as the condition of recognizing the paternal
right. Thirdly, the act regards the interest of the child.^ If
the two considerations of marital duty to be observed towards
the wife and of the interest of the child can be attained con-
sistently with the father's retaining the custody of the child, his
common- law paternal right will not be disturbed ; otlierwise it
may be.^ There is a later infants' custody act (36 & 37 Vict,
c. 12), under which the surrounding circumstances of a case
will be still more sedulously regarded, against a father's own
application for custody ; and paternal right, the marital duty,
and the interest of the child are all considered.^
§ 248. Parental Custody ; American Rule. — In this country
the doctrine is universal that the courts of justice may, in their
sound discretion, and when the morals or safety or interests of
the children strongly require it, withdraw their custody from
the father and confer it upon the mother, or take the children
from both parents and place the care and custody of them else-
where.'* The rule as to legal preference is essentially that of
the common law, with, however, an increasing liberality in favor
of the mother, strengthened, in no slight degree, by positive
legislation. Our rule of procedure is somewhat different from
that noticeable in the English system. Tor though sometimes
the right of custody is to be determined by habeas cmyus, and
sometimes by proceedings in equity, while very frequently inci-
dental to divorce suits ; in any case, the circumstances will be
fully considered by the court, and a decision rendered on general
principles of justice.
1 Per Turner, V. C, in Ex parte » Under Stat. 36 & 37 Vict. c. 12,
Woodward, 17 E. L. & Eq. 77 ; 17 Jur. the custody of a child three years old
50. was given to the mother, her husband
2 76. See also Warde v. Warde, 2 liaving deserted her. In re Taylor, 4
Phil. 787. Stat. 3 & 4 Vict. c. 90, em- Ch. D. 157. And see Brown Re, 13 Q.
powers chancery to assign the care B. D. 614 ; Elderton Re, 25 Ch. D. 220.
and custody of infants convicted of * 2 Kent, Com. 205, and cases cited ;
felony. 1 Story, Eq. Juris. § 1341.
362
CHAP. III.] EIGHTS OF PARENTS. § 248
The father has, in America, the paramount right of custody
independently of all statutes to the contrary.^ But this para-
mount right may be forfeited by his misconduct. Nor do the
decisions in our courts go to the extent of the English rule in
sustaining the husband against his wife, despite his immoral
behavior or marital misconduct. " It is an entire mistake," says
Judge Story, " to suppose that the court is bound to deliver
over the infant to its father, or that the latter has an absolute
vested right in the custody." '^ The cardinal principle relative
to such matters is to regard the benefit of the infant ; to make
the welfare of the children paramount to the claims of either
parent.^ And thus may the mother be preferred in a suitable
case to the father.* While States differ as to the extent of the
father's claims in preference to the mother, in this latter prin-
ciple they all agree ; and judicial precedents, judicial dicta, and
legislative enactments, all lead to one and the same irresistible
conclusion. The primary object of the American decisions is
then to secure the welfare of the child, and not the special
claims of one or the other parent. The English case of Bex v.
Grccnhill^ which, in effect enabling the father to take his chil-
dren from his blameless wife and place them in the charge of a
woman with whom he cohabited, hastened the passage of Jus-
tice Talfourd's Act,^ has been repeatedly condemned in the
United States. Indeed, our courts have required no such stat-
ute to prevent them from taking the custody of any child from
one whose parental influence, by reason of immoral character or
Otherwise, is found to be injurious to the child's welfare; if a
father wrongs his wife, it is readily presumed that he will
1 2 Kent, Com. 205 ; People v. Mer- 3 Case of Waldron, 13 Johns. 418;
cein, 3 Hill, 399; People v. Olmstead, People v. Mercein, 3 Hill. 399; Ex
27 Barb. 9; Miner v. Miner, 11 111. 43; parte Schumpert, 0 Rich. 344; Wood
Cole V. Cole, 23 Iowa, 433 ; Henson v. v. Wood, 3 Ala. 756 ; Gishwiler v. Do-
Walts, 40 Ind. 170 ; Rush v. Vanvacter, dez, 4 Ohio St. 615.
9 W. Va. 600 ; State v. Baird, 6 C. E. * See Moore v. Moore, QQ Ga. 336.
Green, 384; Smith Pet'r, 13 111. 138. 5 4 Ad. & El. 624.
But see Gishwiler v. Djdez, 4 Ohio St. ^ Forsyth, Custody, 69, 137. Lord
615. Thus the father may commit the Denman, who had sat in this case, de-
child to its grandmother. State v. clared that there was not one of the
Barney, 14 R. I. 62. court who had not felt ashamed at the
2 United States v. Green, 3 Mason, state of the law. See lb. 69 n.
382.
363
§ 249 THE DOMESTIC RELATIONS. [PART III.
wrong his children likewise ; and neither parent is secure in a
child's custody, if custody with either is palpably against the
child's own welfare.^ The American rule is not, however, one
of fixed and determined principles. Much must be left to the
peculiar surroundings of each case.^
Proceedings as to the custody of children are usually, in this
country, conducted by writ of habeas corpus. And the settled"
rule with us is that, while the court is bound to free the person
from illegal restraint, it is not bound to decide who is entitled
to the guardianship, or to deliver infants to the custody of any
particular person ; but this may be done whenever deemed
proper. In other words, it is in the sound discretion of the
court to alter the custody of the infants, or not.^
§ 249. Custody under Divorce and other Statutes. — Our
divorce jurisprudence, being, until recently, quite different from
that of England, further opportunity has been furnished for a
departure from the common-law rules which favor the paternal
right of custody. The same tribunal which hears the divorce
cause has power to direct with whom of the parties, or what
third person, the children shall be.* Like powers are now con-
ferred upon the English matrimonial court by recent statutes;
and the child's custody may be given to either parent or a third
person ; generally to the innocent parent, though with due re-
1 Bedell v. Bedell, IJohns. Ch. 604
Barrere v. Barrere, 4 Johns. Cli. 187
197; 2 Bishop, Mar. & Div. 5th ed
§ 532 ; Ex parte Schumpert, 6 Rich
344 ; People v. Chegaray, 18 Wend
637 ; Garner v. Gordon, 41 Ind. 92
Corrie i\ Corrie, 42 Mich. 509.
2 Cook V. Cook, 1 Barb. Ch. 639
less of the child's welfare. 37 Ark. 27 ;
15 Neb. 459.
3 Commonwealth v. Addicks, 5 Binn.
520 ; Armstrong v. Stone, 9 Gratt. 102;
Case of Waldrcm, 13 Johns. 418 ; State
v. Smith, 6 Me. 462; State ex rel. v.
Paine, 4 Humph. 523; Commonwealth
V. Briggs, IGPick. 203 ; Ward v. Roper,
Dailey v. Dailey, Wright, 514 ; Com- 7 Humph. Ill ; Foster v. Alston, 6
monwealth r. Addicks, 2 S. & R. 174. How. (Miss.) 406; Stigall v. Turney, 2
Tlius have the child's interests been Zabr. 286 ; Merccin i-. People, 25 AVend.
considered against the father, where 64; State r. King, 1 Ga. Dec. 93 ; State
the latter sought to obtain the child v. Banks, 25 Ind. 495; Bennet v. Ben-
from its maternal grandparents. Jones net, 2 Beasl. 114; Ex parte Williams,
V. Darnall, 103 Ind. 569. Or where 11 Rich. 452; State v. Richardson, 40
the children were bound out or given N. H. 272; State v. Grisby, 38 Ark.
for adoption by public authorities. 406.
Briaster v. Compton, 68 Ala. 299. * 2 Bishop, Mar. & Div. 5th ed.
Especially where the father was intem- §§ 526, 530.
perate or improvident, or long regard-
364
CHAP. III.]
EIGHTS OP PARENTS.
§249
gard to the child's welfare ; and, in suitable cases, with a right
of access to the parent or parents deprived of custody.^ Where
the custody of a child is the subject of chancery or divorce pro-
ceedings, the court will often be justified in making temporary
arrangements for his custody.^
1 Stats. 20 & 21 Vict. c. 85, § 35 ; 22
& 28 Vict, c 61, § 4. See Ahrenfeldt
V. Ahrenfeldt, 1 Hoff. Ch. 497 ; Spratt
t'. Spratt, 1 Swab. & T. 215 ; 2 Bishop,
Mar. & Div. 5th ed. §§ 532-544, and
cases cited ; Bedell v. Bedell, 1 Johns.
Ch. 604 ; Chetwynd v. Chetwynd, L. R.
1 P. & D. 39 ; Harding v. Harding, 22
Md. 337 ; Mallinson v. Mallinson, L. R.
1 P. & D. 221 ; McBride v. McBride, 1
Bush, 15 ; Goodrich v. Goodrich, 44
Ala. 670; Bush v. Bush, 37 Ind. 164;
Harvey v. Lane, 66 Me. 536 ; Hill v.
Hill, 49 Md. 450. The father is strongly
preferred to the mother where he ob-
tained divorce for her desertion. Carr
V. Carr, 22 Gratt. 168. See In re Tay-
lor, 4 Ch. D. 157. Even after divorce
with a decree of custody to one parent,
occasion may arise for separating the
child, in the latter's interest, from both
parents, as concerns custody. D'Alton
I'. D'Alton, 4 P. D. 87; In re Bort,
25 Kan. 306. Where the divorce court
awarded custody to the motlie'r, and
the mother on dying left the children
to some relative who was appointed
their guardian, the father must at least
show his fitness to take custody. Bryan
V. Lyon, 104 Md. 227 ; Murphy Ex
parte, 75 Ala. 409 ; Smitu c. Bragg, 68
Ga. 650. But as against a stranger in
blood, see 90 Ind. 150.
2 Hutson V. Townsend, 6 Rich. Eq.
249 ; Barnes v. Barnes, L. R. 1 P. & I).
463 ; lie Welch, 74 N Y. 299.
Some American statutes concerning
custody are worthy of notice. Follow-
ing the temper of the times, the New
York legislature of 1860 enacted that
" every married woman is hereby con-
stituted and declared to be the joint
guardian of her children, with her hus-
band, with equal powers, rights, and
duties in regard to them with her hus-
band." Such a statute, unexplained,
might seem to do away altogether with
the paramount claims of the husband.
But the courts appeared disposed to
regard the innovation with little favor;
and the law was in 1862 repealed.
People V. Brooks, 35 Barb. 85 ; People
V. Boice, 39 Barb. 307. In the former
case a married woman, who lived apart
from her husband, no misconduct on
his part being shown, sought under the
new statute to obtain custody of the
children. An earlier statute of New
York provides that if the parents live
in a state of separation, without being
divorced, and witiiout the fault of the
wife, the courts may, on her applica-
tion, award the custody of the child to
the mother. 2 N. Y. Rev. Sts. 148 ; 2
Kent, Com. 205 n. ; People v. Mercein,
3 Hill, 399. The discretion thus con-
ferred upon the court? is a judicial one,
however, and is to be exercised with
due reference to the cause of separa-
tion, and the conduct and character of
the parties. And see People i-. Brooks,
supra. See N. Y. act 1862, c. 172, § 6,
which restrains the father from bind-
ing his child as apprentice, or parting
with his control, or creating a testa-
mentary guardian, without the mother's
written assent. Legislative provisions
of a like tendency are frequently to be
met with in other States. Thus in
Massachusetts it is enacted that, pend-
ing divorce controversies, the respective
rights of the parents shall, in the ab-
sence of miscoiiduct, be regarded as
equal, and that tlie happiness and wel-
fare of the children shall determine
the custody in which they shall be
placed. Mass. Gen. Sts. c. 107, § 37.
And under a still more recent statute
in New Jersey, the court is to a certain
extent deprived of its discretion in dis-
365
§ 251 THE DOMESTIC RELATIONS. [PART III.
§ 250. Custody of Minors ; Child's own Wishes. — It is some-
times a question, in proceedings relative to the custody of minors
how far the child's own wishes should be consulted. Where
the object is simply that of custody, the rule, though not arbi-
trary, rests manifestly upon a principle elsewhere often applied;
namely, that after a child has attained to years of discretion he
may have, in case of controversy, a voice in the selection of his
own custodian. The practice is to give the child the right to
elect where he will go, if he be of proper age. If he be not of
that age, and want of discretion would only expose him to dan-
gers, the court must make an order for placing him in custody
of the suitable person.^
§ 251. Contracts transferring Parental Rights. — It is held in
England that an agreement by which the father surrenders cus-
tody of his child is not binding ; and that he is at liberty to re-
voke his consent afterwards, and obtain the child by a writ of
habeas corpus? The policy of the rule is otherwise in some
American States. Thus, there is a IVIassachusetts case where
a child had been given up at its birth, the mother having then
died, to its grandparents, who kept it for thirteen years, at their
own expense, without any demand made by the father for its
restoration ; and under these circumstances the court refused
afterwards to change the custody.^ But a father's phrase in a
letter of affection to relatives is not to be readily construed into
posing of the custorij' of children whose 19 Wis. 274 ; Regina v. Clarke, 7 El. &
parents are separated, but not divoroeii; B. 186; Stater. Richardson, 40 N. H.
for by this statute the custody of the 272 ; Spears v. Snell, 74 N. C. 210 But
children under seven years of age is according to Regina v. Howes, 3 Ell. &
transferred from the father to the Ell. .3-32, and Mallinson v. Mallinson, L.
mother. Bennet >k Bennet, 2 Beasl. R. 1 P. & D. 221, sixteen years is now
114. As to modifying the order of the limit adopted in English courts
custody after divorce, see Harvey v. within which the child's own choice as
Lane, 66 Me. 5.36. to custody may be regarded. See, as
' Forsyth, Custody, 0.3, &c. ; Rex v. to children too young, Rust v. Vanvac-
Greenhill, 4 Ad. & El. 62. Nine or ten ter, 9 W. Va. 600; Henson r. Walts,
years of age has been considered too 40 Ind. 170.
young; yet mental capacity appears ' Regina v. Smith, 16 E. L. & Eq.
the real test; and the wishes of chil- 221.
dren less than fourteen have been re- ^ Pool ik Gott, 14 L. R. 269, before
garded. See Anon., 2 Ves. 274; Ex Shaw, C. J. And see /«re Goodcnough,
p((rte Hopkins, 2 P. Wms. 152; Curtis 19 Wis. 274; Bently v. Terry, 59 Ga.
V. Curtis, 5 Gray, 535 ; People v. Mcr- 555.
cein, 8 Paige, 47 ; In re Goodenough,
366
CHAP. III.] RIGHTS OF PARENTS. § 251
a barrier of his natural rights.^ The general doctrine appears
to us, on the whole, to be this : that public policy is against the
permanent transfer of the natural rights of a parent ; and that
such contracts are not to be specifically enforced, unless in the
admitted exception of master and apprentice, to constitute which
relation requires, both in England and America, certain formali-
ties ; and excepting, too, in parts of the United States where the
principles of legal adoption are part of the public policy.^ Amer-
ican courts hold fast, nevertheless, to the true interests and wel-
fare of the child. And hence the contract of a parent unfit to
have custody of the child, and more especially of a shiftless,
widowed mother, which surrenders that child, by formal instru-
ment, fair in its terms, to a benevolent institution, for the pur-
pose of having the child brought up in a good family, or to some
other suitable third party, has been so far upheld, where the in-
stitution or person entrusted has not failed in duty, that the
child is suffered to remain where he was placed, for the reason
that his welfare requires it, rather than be returned to the par-
ent who seeks to recover custody once more.^ And so, too, often
where a shiftless parent permits the child to be brought up by
other relatives at their cost, and a change afterwards would be
unsuitable.*
1 Scarritt Re, 76 Mo. 565. the parent, than third parties or the
2 See, as to adoption, siipro, § 2.32. heirs or kindred of tlie parent. Assent
^ 2 Kent, Conn. 205; State v. Bar- and transfer was, after long Inpse of
rett, 45 N. H. 15; Dumain v. Gwyniie, time, presumed in Sword v. Keith, 31
10 Alien, 270; Commonwealth v. St. Midi. 248. And a grandparent, by
Jolin's Asylum, 9 Phila. 571 ; Bonnett virtue of transfer to liim, may sue a
V. Bonnett, 61 Iowa, 198. Where sis- third person for disturbing Ids ous-
ters of charity took a female child tody, in Clark v. Bayer, 32 Oiiio St.
without legally adopting, the child was 299.
transferred afterwards in order to re- * Drumb v. Keen, 47 Iowa, 435.
ceive tiie benefit of a grandparent's If a father, after making an assign-
will. BuUen Ex parte, 28 Kan. 781. ment of the services or society of his
The mother, being a suitable per- minor child, has retaken the child into
son, was allowed to recover custody, in his own keeping, the assignee's only
VVishard v. Medaris, 34 Ind. 168. And remedy on his own behalf (if any he
see Beller v. Jones, 22 Ark. 92. Mayne have) is by action on the contract.
V. Baldwin, 1 Halst. Ch. 454; People v. Farnsworth v. Richardson, 35 Me. 267.
Mercein, 8 Paige Ch. 67; s. c. 3 Hill, And see Commonwealth i--. M'Keagy, 1
408; State v. Libbey, 44 N. H. 321; Ashm. 248;Lowry v. Button, Wright,
State V. Scott, 30 N. H. 274, establish 330. An adjudication of the appropri-
that a parol transfer of custody is in- ate tribunal on the question of the cus-
sufficient. But this is rather as regards tody of an infant child, brought up on
367
§ 252 THE DOMESTIC RELATIONS. [PAET III.
Nor can the father, under the common-law rule, divest him-
self, even by contract with the mother, of the custody of his
children, though he allows them to remain with her for several
years.^ Yet the rule in some States is more flexible.^ A parent,
if personally suitable, is not debarred from recovering custody
of a young child who, without parental consent, has been bound
out in some emergency by the public authorities.^
§ 252. Right of Parent to Child's Labor and Services. — Next
to ,the right of custody of infants comes that of the value of
their labor and services. The father, says Blackstone, has the
benefit of his children's labor while they live with him and are
maintained by him ; and this is no more than he is entitled to
from his apprentices or servants.* This right, like that of cus-
tody, rests upon the parental duty of maintenance, and furnishes
some compensation to the father for his own services rendered
the child.
Whether this right remains absolute in the father until the
child has attained full age is apparently a matter of doubt. It
is certainly perfect while the period of the child's nurture con-
tinues. But if this is all, it can be of little consequence, be-
cause the child's labor and services are for that period of little
or no value ; nor could compensation be thus afforded for the
many years when the child was entirely helpless. All will
admit that the father's right continues until the child reaches
fourteen. And since the father's guardianship by nature ex-
tends through the full term of the child's minority ; since, too,
he may by will place a testamentary guardian of his own choice
over the infant ; since it is reasonable that the law should set
off years of later usefulness against years of earlier helplessness ;
in short, since the age of majority is fixed as the period when
an infant becomes legally emancipated from his father's control ;
habeas corpus, may be pleaded as res 2 Wodell v. Coggreshall, 2 Met. 89.
adjmUrnta. Mercein v. People, 25 And see State v. Smith, 6 Me. 402.
Wend. 64. As to custody in matters of guardian-
1 Torrington v. Norwich, 21 Conn, sliip, sec infra, Part IV.
543 ; People v. Mercein, 3 Hill, 408. 3 Goodchild v. Foster, 51 Mich. 599 ;
And see Vansittart y. Vansittart, 4 Kay Farnham v. Pierce, 141 Mass. 203.
& J. 62; Johnson v. Terry, 34 Conn. See Briaster v. Compton, 68 Ala. 299.
259. 4 1 Bl. Cora. 453 ; 2 Kent, Com. 193.
368
CHAP. III.] RIGHTS OF PARENTS. § 252 a
we may fairly assume that, all other things being equal, the
father is actually entitled to the value of his child's labor and
services until the latter becomes of age. This is the principle
assumed by the elementary writers,* and in most of the judicial
decisions ; ^ though to such opinion Chancellor Kent appears to
yield a somewhat doubtful assent.^
The right of action to recover for the services of a minor is
then presumed to be in his father.* And the father may charge
services rendered by his son, as a master for his apprentice or
hired laborer, and consider it his own work.^ The right to sue
for services quantum meruit is \\kQ,vfis,Q prima facie in the father.^
We assume that the child lives at home or is supported by the
parent. And if a child, being of full age, chooses to remain with
the father, or is imbecile and needs to be harbored at home, the
relation may continue so as to entitle the parent, either as such
or on the principle of master and servant, to recover for the
child's wages in the same manner.'^
Where a minor child is hired under agreement with the father,
the hirer cannot discharge the child without notice to the parent
and thereupon proceed to make a new contract of hire with the
child, independently. The effect of such a new arrangement, if
made without the knowledge and assent of the father, is that the
latter, on learning of it, may either adopt the contract and claim
what was due under it, or repudiate and claim the value of his
child's services.^
§ 252 (X. The Same Subject. — But the duties and rights of
parents are limited, mutually dependent, and in a great degree
correspondent with one another. When the father has dis-
charged himself of the obligation to support the child, or has
1 1 Bl. Com. 453 ; Reeve, Dora. Rel. v. Swedenborg, 49 Ind. 378; Mona-
290. ghan v. School District, 38 Wis. 100.
2 Day V. Everett, 7 Mass. 145 ; Ben- See Campbell v. Cooper, 34 N. H. 49.
son V. Remington, 2 Mass. 113; Plum- 5 Brown v. Ramsay, 5 Dutch. 117.
mer v. Webb, 4 Mason, 380; Gale v. But see Jones v. Buckley, 19 Ala. 604.
Parrot, 1 N. H. 28 ; Nightingale v. e Letts v. Brooks, Hill & Den. 36 ;
Withington, 15 Mass. 272; The Etna, Van Dorn v. Young, 13 Barb. 286.
Ware, 462. v Brown u. Ramsay, 5 Dutch. 117 ;
^ 2 Kent, Com. 193. Overseers of Alexandria v. Overseers
« Dufield V. Cross, 12 III. 397 ; Shute of Bethlehem, 1 Harr. 122 ; infra, c. 5.
V. Dorr, 5 Wend. 204 ; Hollingsworth 8 Sherlock v. Kimmel, 75 Mo. 77.
24 369
§ 252 a THE DOMESTIC RELATIONS. [PART III.
obliged the child to support himself, our courts are reluctant to
admit his right to the child's services. Under such circum-
stances, says a New Hampshire court, " there is no principle
but that of slavery which continues his right to receive the
earnings of his child's labor." ^ Of the emancipation of chil-
dren, thus or otherwise secured, we shall speak hereafter.^
The parent may voluntarily relinquish the right to his child's
earnings, and may permit the child to earn for himself, receive
his earnings, and appropriate them at pleasure. He is not
obliged to claim such earnings for the benefit of his own credi-
tors.^ And if the parent authorize a third person to employ
and pay the child, or even, as it is held, where he knows that
the infant contracted on his own account and does not object,
payment to the child and not to the parent will be a sufficient
discharge. Such an agreement may be in express terms, or it
may be implied from circumstances.* An American court
favorably regards contracts of this nature, for the child's bene-
fit, as they are in conformity with the spirit of free institu-
tions.^ And a New York statute provides that unless the
parent notifies the minor's employer, within thirty days after
the commencement of service, that he claims the wages, pay-
ment to the minor will be good.^ When the parent is a pauper
and is maintained by a town, such town is held not entitled
to the earnings of a minor child who is not himself a pauper.'^
1 Woods, J., in Jenness v. Emerson, * See Campbell v. Cooper, 34 N. H.
15 N. H. 489. But in this case tlie prin- 49 ; Jenness v. Emerson, 15 N. H. 489
ciple seems to be assumed that the Cloud v. Hamilton, 11 Humph. 104
parent's obligation to support and his Armstrong v. McDonald, 10 Barb. 300
right to receive wages commence to- Atkins v. Sherbino, 58 Vt. 248.
gether, continue together, and ought ^ Snediker v. Everingham, 3 Dutch,
always to terminate together. 143; Cloud ;'. Hamilton, 11 Humph.
2 See uj/J-rt, §§ 267, 268. An infant 104. An infant may sue for breach of
daughter's marriage terminates her contract for employment, even though
father's right to her services. lb. the father might also sue ; relinquish-
3 Even if the father is insolvent, he ment of the latter's right being implied
may thus relinquish, provided this be from circumstances. Benziger v. Mil-
done in good faith. Wilson v. McMil- ler, 50 Ala. 206. See post, c. 5.
Ian, 02 Ga. 10 ; Atwood v. Holcomb, 39 « N. Y. Laws, 1850, p. 579 ; Herrick
Conn. 270; Wambold r. Vick, 50 Wis. v. Fritcher, 47 Barb. 589. And see
456; 17 Neb. 335. But the executory Everett v. Sherfey, 1 Iowa, 356.
promise to relinquish is revocable. "^ Jenness v. Emerson, 15 N. H.
Stovall V. Johnson, 17 Ala. 14. 486.
370
CHAP. III.] RIGHTS OF PARENTS. § 252 a
The father may by his own delay and laches forfeit the right of
action for his son's wages ; as where the minor agrees to work
at certain monthly wages to be paid to himself, and the father,
knowing of the agreement, gives no notice of his objection, but
waits until the work has been done and payment is made to the
qhild, before making a demand.^ But if the father has 'given
seasonable notice of his dissent and demand to the stranger
hiring his son, the fact that the son continues to work against
his express dissent, and that the stranger notified him to come
and take his son away and he neglected to do so, will not pre-
clude him from recovering the wages.^ Nor does the fact that
the son has agreed with his father to buy out his time for the
remainder of his minority by paying a certain sum therefor,
which has not been paid, prevent the father from recovering
his wages pending the payment of such sum.^
We may add that whatever private arrangement may exist
between the father and his son, unless it is brought to the
employer's notice it cannot be set up to justify payment to the
minor himself. As for instance, where father and son had
secretly agreed that the latter should have his own wages.*
And the publication, by a parent, of a notice of his son's
emancipation, more liberal to the latter than the actual agree-
ment between them, will not, as against one who has no
knowledge of the publication, estop the father from insisting
on such right to his son's wages as the contract between them
actually gives.^ But the usage of father and son may be
alleged.^
One who employs the minor son of another cannot be liable
to his father as for breach of contract, because of such minor's
delinquencies. Hence it is held, that where the father con-
tracts that his minor son shall work for a specified time and
price, and the son leaves his employer before the expiration of
1 Smith V. Smitli, 30 Conn. 111. * Kauffelt v. Moderwell, 21 Penn.
2 Ih. St. 222.
3 Cahill V. Patterson, 30 Vt. 592. & Mason v. Hutchins, 32 Vt. 780.
And see Kauffelt v. Moderwell, 21 ^ Perlinau v. Phelps, 2-5 Vt. 478 ;
Penn. St. 222 ; Cloud v. Hamilton, 11 Canovar v. Cooper, 3 Barb. 115.
Humph. 104 ; Wiiiting v. Earle, 3 Pick.
201.
371
§ 252 a THE DOMESTIC RELATIONS. [PART III.
the time, against his father's will, the father can only recover
for the time of actual employment, although the employer
assented to the departure.^ But where the minor is hired to
serve for a specified time, the employer who contracted with
the parent should notify the latter of any failure of duty on
the child's part before discharging the child, nor should he dis-
charge without notice to the parent.^ If a father place his
minor son to work for another, for no illegal purpose, and
without knowledge and assent as to his illegal employment in
fact, he is still entitled to compensation for his son's services ;
as where a son is employed by another in unlawfully selling
intoxicating liquors, the father being ignorant of the nature
and character of the services while they were being performed.^
Where a father and his minor son agree that the latter shall
work for B. until his majority, and be paid the wages, this
does not debar the father for suing B. for a breach of the
agreement and recovering the expense of finding other em-
ployment for the son.^
Wages due a minor seaman belong to his father, and the
latter may sue for them in admiralty.^ And payment of such
wages to the son, while he was known by his employer to have
been less than twenty-one at the time of making the contract,
furnishes no defence to an action by the father, who had no
knowledge of his hiring until after the wages were earned.^
Nor is the father, in such case, affected by the terms of the
shipping articles, because it is an express contract which, as
against him, the son has no right to make ; he can claim under
a quantum meruit for the value of the services. But mercantile
custom may determine certain questions as to the remedy."
1 Hennessy v. Stewart, 31 Vt. 486. ^ Emery v. Kempton, 2 Gray, 257.
See Schoenberg v. Voigiit, 36 Mich. * Dickinson v. Tahiiage, 138 Mass.
310, wiiere, the employment being 249. As to the effect of mere notice
quantum meruit, the employer could by the father to the employer, that he
show that the son had embezzled more shall exact payment, see 132 Mass. 304.
than his services were worth. But cf. ^ Gifford v. Kollock, 3 Ware, 45.
The Lucy Anne, 3 Ware, 253. As to the effect of desertion by the
2 Day );. Oglesby, 53 Ga. 646. .Sew- child after attaining majority, see
hie, a cliild may be discharged for suit- Coffin v. Shaw, 3 Ware, 82.
able reason witiiout giving notice to *• White v. Henry, 24 Me. 531. See
the parent. Sherlock v. Kimmel, 75 Weeks v. Holmes, 12 Cush. 215.
Mo. 77. 1 Bishop ?;. Shepherd, 23 Pick. 492.
872
CHAP. III.] RIGHTS OF PARENTS. § 254
As to enlistments in the army or navy of the United States,
the laws contemplate that the contract is personal and for the
benefit of the infant ; and pay, bounties, and prize-money in
general, though earned under State laws, are held to belong to
the son, and not to the father.^
§ 253. Clothing, Money, &c., given to the Child; Right to
Insure. — Where a father furnishes his minor child with cloth-
ing, such clothing is the property of the father, and he may
maintain an action for the loss and injury thereof; but where
he intrusts the child with a sum of money for general purposes,
without specific directions as to its appropriation, and the child
buys clothing with it, such clothing is not the property of the
father.2 The parent may give articles by parol to his child,
and afterwards resume them, there being no consideration.^ If
a young child makes foolish and unnecessary outlay, the parent
may repudiate the transaction.^
A father has a pecuniary interest in the life of a minor child,
and an insurance of the life of such child is not within the
rule of law by which wager policies are declared void.^ On the
other hand, a minor child has an interest in an insurance policy
on the father's life which has been taken out for his benefit,
and of this interest he cannot be deprived by arbitrary acts in
favor of another.^
§ 254. Mother's Rights to Child's Services and Earnings. —
1 United States v. Balnbridge, 1 repudiating the contract and making
Mason, 84 ; Baker v. Baker, 41 Vt. 55 ; his demand. Money entrusted to a
Banks v. Conant, 1-4 Allen, 497 ; Mears minor son for a specific purpose, and
V. Bickford, 55 Me. 528 ; Carson v. applied by him without his father's as-
Watts, 3 Doug. 3-50; Cadvvell v. Sher- sent in compounding his own crime,
man, 45 111. .348 ; Magee i'. Magee, 65 may be recovered by the father from
III. 255. But cf. Ginn i'. Ginn, 38 Ind. the receiver upon a similar principle.
526. Burniiam v. Holt, 14 N. H. 367. AUter,
2 Dickinson v. Winchester, 4 Cush. if the father assented to the payment,
114; Parmelee v. Smith, 21 111. 620; or if the money was paid solely as
Prentice v. Decker, 49 Barb. 21. civil damages in settlement of a tres-
3 Cranz v. Kroger, 22 111. 74 ; Sto- pass. lb.
vail M. Johnson, 17 Ala. 14. ^ Mitchell c. Union, &c. Ins. Co.,
* See Sequin v. Peterson, 45 Vt. 45 Me. 104. But see Worthington v.
255, and cases cited. Here the child, Curtis, 1 Ch. D. 419.
eleven years old, having bought cigar- ^ Ricker v. Charter Oak Ins. Co , 27
holders, pipes, &c., of a shopkeeper, Minn. 193 ; Martin v. Aetna Ins. Co.,
the father was allowed to recover the 73 Me. 25 (an adopted child),
money in his own name, upon promptly
373
§ 255 THE DOMESTIC RELATIONS. [PART III.
At the common law a mother has no implied right to the ser-
vices and earnings of her minor child ; not being bound for the
child's maintenance. Nor have her rights or liabilities in these
respects been usually regarded as equivalent to those of a
father, even where she is the only surviving parent.^ But the
modern tendency in this country, if not in England, is certainly
to treat a mother's rights with considerable favor, especially if
she be a widow ; and in several late cases her title has been
upheld in her minor child's clothing ^ or earnings, so far as
concerns third persons ; it appearing that she was the sur-
viving parent, and that the child had no probate guardian and
was not emancipated. Whether such title on her part could
be so well enforced against the child's own consent, and to the
extent of depriving the child of the fruits of his own toil,
especially if the mother remarries, may be reasonably doubted.^
§ 255. Parent has no Right to Child's General Property. — As
a rule, the parent has no rights over the child's general prop-
erty. The law treats legacies, gifts, distributive shares, and
the like, which may vest in a person during minority, as his
own property ; and the modern practice is to require the ap-
pointment of a guardian in such cases, to manage the estate
until the child comes of age.'' Under no pretext may the
father appropriate such funds to himself, or use them to pay
his own debts ; and an administrator or trustee who pays the
child's money to the father as parent incurs a personal risk.^
The same may be said of the child's lands.^ And the parent's
1 1 Bl. Com. 453; Commonwealth * Keeler v. Fassett, 21 Vt. 539;
I'. Murray, 4 Binn. 487 ; Riley v. Jarae- Jackson v. Combs, 7 Cow. 36 ; Miles v.
son, 3 N. H. 29; People v. Mercein, 3 Boyden, 3 Pick. 218; Cowell v. Dag-
Hill, 400 ; Morris v. Low, 4 Stew. & gett, 97 Mass. 434 ; Kenningliam v.
Port. 123; Pray r. Gorham, 31 Me. M'Lauglilin, 3 Monr. 30. And see
240; Snediker I'. Everingham, 3 Dutch. Guardian and Ward, infra. But see
143. See Clapp v. Greene, 10 Met. Selden's Appeal, 31 Conn. 548. A
439 ; Campbell v. Campbell, 3 Stockt. father who buys property for himself
268. in his son's name must not perpetrate
'^ Burke v. Louisville II., 7 Heisk. a fraud upon others. Richardson's
451. Case, L. R. 19 Eq. 588.
3 See Matthewson v. Perry, 37 Conn. ^ Perry v. Carmichael, 95 111. 519 ;
435; Hammond v. Corbett, 50 N. H. Clark v. Smith, 13 S. C. 585.
501; Hays v. Seward, 24 Ind. 352; <> As to conveying an easement, see
HoUingsworth v. Swedenborg, 49 Ind. Farmer i-. McDonald, 59 Ga. 509. A
378; Lind y. Sullestadt, 21 Hun, .364. father, as such, cannot be judicially
374
CHAP. III.] RIGHTS OF PARENTS. § 256
investment of his child's money for the latter's benefit will be
protected against all creditors of the former, who are chargeable
with notice of the child's rights.^
§ 255 a. Child's Necessaries; Miscellaneous Points. — A claim
against a parent for his minor child's necessaries may be out-
lawed by limitations.^ Furthermore, for supplies furnished the
infant after the parent's death, the parent's executor or admin-
istrator should not be sued ; it is rather the infant's new guar-
dian and the fund accruing to the child on distribution of the
parental estate to which the claimant must look for indemnity.^
§ 256. Constitutional Right of Legislature to interfere ■with
Parent. — The rights of parents in relation to the custody and
services of their children may be enlarged, restrained, and lim-
ited, as wisdom or policy may dictate, unless the legislative
power is limited by some constitutional prohibition.* But it
is held that the State has no constitutional right to interfere
with the parent and take charge of a child's education and cus-
tody, on the mere allegation that he is " destitute of proper
parental care, and is growing up in mendicancy, ignorance,
idleness, and vice." ^ On the other hand a statute not penal
in character, by which the State, as parens patricc, assumes the
care and custody of neglected children so as to supply to
them the parental custody they have lost, is pronounced
constitutional.^
empowered to sell his son's land, by a father to pay for his child's sup-
Guynn v. McCauley, 32 Ark. 97. See port. 45 Ark. 2o7.
English act 44 & 45 Vict. c. 41, as to * United States v. Bainbridge, 1
management of an infant's lands. Mason, 71, per Story, J. ; Bennet v.
1 McLaurie v. Partlow, 53 111. .340. Bennet, 2 Beasl. 114 ; State v. Clottu,
But as to payments of income by the 33 Ind. 409.
debtor to the natural guardian, which ^ People v. Turner, 55 111. 280.
income is applied to the child's neces- " Sunday laws " of Vermont do not
sary use, see Southwestern R. v. Chap- prevent a father from journeying to
man, 46 Ga. 557. see his children, who are properly ab-
2 Pryor v. West, 72 Ga. 140. sent from home. McCrary v. Lowell,
3 76.; §§ 337, 411; Burns v. Madi- 44 Vt. 116.
gan, 60 N. H. 197. Slight evidence ^ Farnham v. Pierce, 141 Mass.
will support the allegation of a promise 203.
375
258 THE DOMESTIC KELATIONS. [PART III.
CHAPTER IV.
THE PAKENT's eights AND LIABILITIES FOE THE CHILD'S
INJUEIES AND FEAUDS.
§ 257. Injuries, &c., committed upon or by the Child. — Two
distinct topics are to receive treatment in the present chapter,
under the head of the parent's rights and liabilities for the
child's injuries and frauds. First, the parent's right of action
where his child is the injured party. Second, the parent's lia-
bility to action where his child is the injuring party.
§ 258. Injuries committed upon the Child ; Parent's Right to
Sue. — First. Where a child suffers wrong, he has his action
for the personal injury.^ But besides this the parent may
usually claim indemnity for loss of his child's services, to
which should be added the incidental expenses incurred in con-
sequence of the injury. Hence arises a cause of action in the
parent per quod, the foundation of which is a loss of the child's
services. There are various tortious acts, by which a parent
may be deprived of his child's services ; and the law is gen-
erous in securing compensation for the injury.
But in this connection the parental relation is not strictly to
be considered ; the rule being that a parent has no remedy for
an injury done to his child by the wrongful act of another, un-
less that child can be treated in law as his servant ; ^ though
even on this principle, a mother, as the surviving parent of a
minor child, may be permitted to sue where there is no father.^
1 See post, Part V. c. 4. The fact 2 2 Hilliard, Torts, 518-529 ; Addi-
that a child, by her father as next son, Torts, 697 ; Grinnell v. Wells, 7
friend, has recovered damages for a M. & Or. 1041 ; Rogers v. Smith, 17
personal injury, does not bar the Ind. 32.3 ; Hartfield r. Roper, 21 Wend,
father's subsequent action for loss of 615; Dennis v. Clark, 2 Cush. 347.
services from the same injury. Wil- And see Bigelow and Cooley on Torts-
ton V. Middlesex R., 125 Mass. 130. s Natchez R. v. Cook, 63 Miss. 38:
Here the child reached majority before supra, § 2.54.
the father sued.
376
CHAP. IV.] child's injuries AND FRAUDS § 258
This is laid down positively as the English rule. Thus, in a
case where the plaintiff brought an action against the defendant
for carelessly driving over and injuring the plaintiffs child, so
that the plaintiff was obliged to expend a large sum of money in
doctors and nurses, and it appeared that the child was only two
years and a half old, and incapable of performing any act of
service, it was held that the parent's action was not maintain-
able.^ " The gist of the action," it is here said, " is the loss of
services, and therefore, though the relation of parent and child
subsists, yet, if the child is incapable of performing any ser-
vices, the foundation of the action lails."^ And it is doubtful
whether the father, as such, can even maintain a special action
for the expenses necessarily incurred by him in having so young
a child cured of the injury.^
In this country, the rule appears to be more liberal towards
the parent. A New York court observes that it is really ques-
tionable whether the father can be deprived of his right to sue
for the loss of services, on account of the child's youth ; though,
of course, the right may be forfeited by the parent's culpable
negligence.* And in Massachusetts it is decided that if an
infant child, a member of his father's household, and too young
to be capable of rendering any service to his father, is wounded
or otherwise injured by a third person, or by a mischievous ani-
mal owned by a third person, under such circumstances as to
give the child himself an action against such person for the
personal injury, and the father is thereby necessarily put to
trouble and expense in the care and cure of the child, he may
maintain an action against such person for indemnity. The
court laid down the rule, however, with much caution.^ In
general, by our American rule the parent may now recover
^ Hall V. Hollander, 7 Dowl. & Ry. parent may recover the expense of
133 ; 4 Barn. & Cress. 660. nursing and healing his minor child of
^ Bayley, J., in ib. sucli tender years that it is incapable
3 See Addison, Torts, 697; Grinnell of rendering liim any service, from one
V. Wells, 8 Scott N. R. 741. Contra, who wilfully or negligently injures
Hall V. Hollander, supra. such child. Sykes v. Lawlor, 40 Cal.
* Hartfield v. Roper, 21 Wend. 2-36 ; Connell v. Putnam, 58 N. H. 534.
615. Of. Karr v. Pnrks, 44 Cal. 46 ; Sawyer
s Dennis v. Clark, 2 Cush. 347. A v. Sauer, 10 Kan. 519.
377
§ 259 THE DOMESTIC RELATIONS. [PART III.
for loss of the child's services during minority and the ex-
pense of the child's sickness.^
§ 259. Same Subject. — Statutes enlarging the rights of
widows, dependent parents, and others, in torts occasioned by
the negligence of railroad corporations and other common car-
riers, are to be found in England and America. Under such
statutes it is frequently provided that, where a child is thus
killed, the child's administrator may sue for the parent's benefit.
The English statute, known as Lord Campbell's Act, 9 & 10
Vict. c. 93, has given rise to suits of this kind ; but the rule is
laid down that such actions are not maintainable without some
evidence of actual pecuniary damage, some loss of service.^
Though natural equity may assert otherwise, the common-law
does not permit a father to recover for injuries causing the im-
mediate death of his child, either on the ground of loss of ser-
vices or for burial expenses.^ And since, as we have seen, the
parent's right of suit is founded upon the loss of a child's ser-
vices, there are circumstances under which such suits might be
brought, notwithstanding the child was of age, contrary to the
general rule,^ or where one stood to a child not his own in place
of a parent.^
Trespass lies per quod for loss of services occasioned by
assault and battery of the child.^ The true question here, as
elsewhere, seems to be, whether a loss of service was conse-
1 Evansich v. Gulf R., 57 Tex. 123; a child, without the father's consent,
Frick V. St. Louis R., 75 Mo. 542. in dangerous service, and negligently
2 Duckworth v. Johnson, 4 Hurl, caused the child's death. Fort Wayne
& Nor. 653. See, further, Frank v. R. v. Beyerle, 110 Ind. 100. As to
New Orleans, &c. R., 20 La. Ann. 25; circumstances of such employment and
Pennsylvania R. r. Bantom, 54 Penn. knowledge that the child was a minor,
St. 495 ; Gann r. Worman, 69 Ind. 458 ; cf . 67 Tex. 190 ; 61 Tex. 262. And see
Perry v. Carmichael, 95 111. 519; 103 58 Vt. 40.
Ind. .^28. * Pennsylvania R. v. Keller, 67
3 Osborn v. Gillett, L. R. 8 Ex. 88, Penn. St. 300; Mercer v. Jackson, 54
and cases cited ; Edgar v. Castello, 14 111. 397. And see infra, § 262.
S. C. 20 ; McDowell v. Georgia R., 60 5 Whitaker v. Warren, 60 N. H. 20 ;
Ga. .320; Carey v. Berkshire R., 1 §273.
Cu.«h. 475. Parental suit not allowed 6 i^ammer r. Pierce, SHarring. 171 ;
against the seller of a revolver to a Hoover ^'. Heim, 7 Watts, 62 ; Plummer
boy of fifteen, in violation of law, with v. Webb, Ware, 75 ; Cowden v. Wright,
which the boy carelessly shot himself. 24 Wend. 429. But as to indictments,
Poland V. Earhart, 70 Iowa, 285. But see Hearst v. Sybert, Cheves, 177.
suit allowed against one who employed
378
CHAP. IV] child's injuries AND FRAUDS. § 260
quent upon the injury. For assault and battery on the high
seas, there is likewise a remedy in admiralty.^
If the parent has finally relinquished his right to the services
of his child, he cannot claim such damages ; they belong to the
master, if any one ; but this question of relinquishment is for
determination on the usual principles.^ And where an injury
is inflicted upon a child while living with and in the service of
another, the proper remedy of the father is trespass on the case
for the reversion, as it were, of the child's services ; as where a
person who hired the son of another put him upon a vicious
horse, so that he was thrown and had his leg broken.^ And
the parent's negligence may, in certain cases, defeat his own
right of action for loss of service altogether, as well as that of
the young child for the injury suffered.^ The death of the
child after the injury, though it may, on familiar principles,
terminate the right to sue for the child's tort, does not affect
the parent's consequential right of action.^ The death occur-
ring before the commencement of the suit, if in consequence of
the injury, only aggravates the parent's remedy ; if the death is
occasioned by other causes, it leaves the remedy as it stood
before.^
§ 260. Suit for Harboring or Enticing a-wray One's Child ;
Abduction, &c. — Every person who knowingly and designedly
interrupts the relation subsisting between parent and child, by
procuring the child to depart I'rom the parent's service, or by
harboring and keeping him after he has quitted his home, com-
mits a wrongful act, for which he is responsible to the parent.
The offence, where force was not used, is known as enticement,
and the rule applies to the relation of master and servant. In
such cases, again, the parent sues on a principle analogous to
that of the master ; namely, because of an alleged loss of ser-
1 Plunmier v. Webb, Ware, 75. ^ Loss of services from tlie time of
2 Arnold r. Norton, 25 Conn. 92 ; the child's injury to the time of his
Texas R. v. Crowder, 61 Tex. 262. death may be recovered, as well as
3 Wilt I'. Vickers, 8 Watts, 227. incidental expenses incurred for nurs-
* See infra, Part V. c. 4 ; Pierce v. ing and medical attendance. Natchez
Millay, 62 III. 1.3:]; Smith v. Heston- R. r. Cook, 63 Miss. 38.
ville R., 92 Pcnn. St. 450 ; Kreis v. ^ Plummer v. Webb, Ware, 80 ;
Wells, 1 E. D. Smith, 74 ; Glassey v. Winsmore v. Greenbank, Bull. N. P.*
Hestonville, &c. R , 57 Penn. St. 172. 78; Ihl v. Street R., 47 N. Y. 317.
379
§ 260
THE DOMESTIC RELATIONS.
[part III.
vice ; or possibly in trespass vi et armis upon the more reason-
able allegation of loss of the child's society.^ And this action
will lie on behalf of the mother after the father's death.^ The
quo aniino of the defendant in such suits is always material.
To afford shelter is one thing ; to encourage filial disobedience
another. The mere employment of a runaway child does not
amount to enticement.^ But where it appears that the defend-
ant, knowing that the son had absconded from his father,
boarded him in his family and allowed him to work on his
farm as he pleased, doing this with the intention of aiding or
encouraging, or with the knowledge that it aids and encourages
the son to keep away from the father, he is liable to this action.*
And to harbor or entice away an innocent child for immoral
and corrupt purposes is an outrage criminally dealt with.^
A parent may maintain a libel in the admiralty for the
wrongful abduction of the child, a minor, and carrying him be-
yond the seas.^ Abduction or kidnapping is an offence similar
1 Lumley v. Gye, 2 El. & B. 224;
Kirkpatrick v. Lockhart, 2 Brev. 276;
1 Woodes. Lee. 4.51 ; Sargent v. .Matliew-
son, 38 N. H. 54 ; 3 Bl. Cora. 140.
2 Jones V. Tevis, 4 Litt. 25; Moore
V. Christian, 56 Miss. 408.
3 Keane v. Boycott, 2 H. Bl. 511 ;
Butterfield v. Ashley, 6 Cash. 249.
* Sargent v. Mathewson, 38 N. H.
54 ; Everett v. Slierfey, 1 Iowa, 350.
Indictment lies under fit circumstances
for the offence of abduction or entice-
ment of one's minor child. See Lang-
ham V. State, 55 Ala. 114 ; State v.
Rice, 76 N. C. 194 ; Queen v. Prince,
L. R. 2 C. C. 154. The doctrine of en-
ticement extends to the relation of
Master and Servant, where it will be
considered further. Sec post, Part VI.
c. 4 ; Noice v. Brown, 39 N. J. L. 569 ;
Morgan v. Smith, 77 N. C. 37. Where
one's minor child is enticed away or
harbored against the father's will, and
without justification, the offender can-
not, of course, recover for the child's
board. Schnuckle v. Bierman, 89 111.
454. But where one employs a run-
away cliild hovn Jide, without being
guilty of this offence, he may offset
380
wages due the father by the expense of
actual support of the child. Huntoon
V. Hazelton, 20 N. H. 388. The father
may sue on the basis of a contract for
his absconding child's wages ; but he
is put to his election, and the suit in
tort against the employer, for unlaw-
fully enticing or harboring his minor
child, precludes the action of assumpsit
as for wages earned. Thompson v.
Howard, 31 Mich. 309 ; Grand Rapids
R. V. Showers, 71 Ind. 451.
5 See § 261 ; People v. Marshall, 59
Cal. 386; State v. Gordon, 46 N. J. L.
432. Whether force or persuasion was
used in such abduction of a child does
not affect the parental right of action.
Lawrence v. Spence, 99 N. Y. 669. But
criminal prosecutions for enticing, &c.,
for purposes of prostitution may fail,
where it appears that the child was
lewd and went of her own free will.
People V. Platn, 100 N. Y. 590 ; 15 Lea,
674 ; 56 Mich. 544.
8 Steele v. Thacher,Ware,91 ; Plum-
mer v. Webb, 4 Mason, 380. See Cut-
ting V. Seabury, Sprague, 522 ; Weeks
V. Holmes, 12 Cusli. 215.
CHAP. IV.] child's injuries AND FRAUDS. § 260
to enticement, but implying the use of force rather than persua-
sion ; and the parental remedies are similar. Where father and
mother live apart, the mother's assent to the child's enlistment
as a sailor may sometimes affect the father's remedies.^ But
some parental ratification of the son's contract of enlistment
should be shown, in order to defeat the parent's right of action ;
and similar principles apply in the case of an army enlistment ;
there being, doubtless, cases where a parent may sue one at law
for unlawfully harboring and concealing his young child, and so
inducing him to enlist as a soldier.^
There must be a reasonable limit to suits by the parent for
loss of his child's society and services. Hence it is now well
settled in this country that the parent cannot sue for enticing
his child into a marriage against the parent's consent.^ For a
forcible abduction, resulting in an imperfect marriage, and
aggravated cases of a like nature, where, in fact, there is not
a valid union, there might be a remedy. So the marriage
statutes not unfrequently provide penalties to be meted out to
offenders who aid and encourage infants in evading statutes
requiring the consent of parents or guardians. But for drawing
children of suitable age into a marriage which pleases them-
selves, the law affords no redress ; nor can it punish for the
sake of parental discipline. And even though the match be
unhappy, yet marriage must supersede the filial relation.* Nor
can a parent sue a school teacher, school trustees, or others, for
excluding his children from school ; the right of action, if any,
being in the child,^ and there being no real loss of services con-
sequent upon the affront. Tn short, the general rule is to place
all actions by the parent on the sole ground of value of the lost
1 Wodell V. Coggeshall, 2 Met. 89. tenures, for thereby the parent lost the
And see Worcester v. Marcliant, 14 value of his child's marriage ; but this
Pick. 510. injury ceased long ago, with the right
- Caughey v. Smith, 47 N. Y. 244. on which it was founded. See 3 Bl.
3 Jones V. Tevis, 4 Litt. 25 ; Hervey Com. 140, and notes.
V. Moseley, 7 Gray, 479 ; Goodwin v. ^ Spear v. Cummings, 23 Pick. 224 ;
Thompson, 2 Greene (Iowa), 329. But Donahoe v. Richards, .38 Me. 376 ; Boyd
see Hills v. Hobert, 2 Root, 48. v. Blaisdell, 15 Ind. 73; Stephenson v.
* Marrying a parent's son and heir Hall, 14 Barb. 222. Contra, Roe v,
was a civil injury at common law Darning, 21 Ohio St. 666.
during the continuance of the military
381
§ 261 THE DOMESTIC RELATIONS. [PART III.
services of the child, who is regarded as a servant for the pur-
pose of the suit ; not to punish, for the sake of the father, those
who wrong the child.^ And the most liberal view of the sub-
ject indicated by American courts is to regard the parent as in
a measure entitled to the society and solace of his own chil-
dren ; though this reasonable position is not clearly supported
by authority.
§ 261. Suits for Seduction of a Child. — Even in seduction
suits the same technical principle is rather absurdly, though
not always unkindly, applied. The foundation of the action
by a father to recover damages against the wrong-doer for the
seduction of his daughter has been uniformly placed, from the
earliest times, not upon the seduction itself, which is the wrong-
ful act of the defendant, but upon the loss of service of the
daughter, in which he is supposed to have a legal right or in-
terest.^ At common law the seduced woman herself has no
cause of action against her seducer.^ And without some allega-
tion and proof of loss of service in a parent or master the action
is not maintainable.
Thus, where it was alleged by the father that his daughter
was a poor person, maintaining herself by her labor and per-
sonal services, and not of sufficient ability to maintain herself
otherwise ; and that, by being debauched, she became unable to
work, and had to be maintained by her father at considerable
expense, — all this was held insufficient allegation of loss of ser-
vice.^ So it is not enough to show that the father had appren-
ticed his daughter to the defendant to learn millinery, and had
paid him a large sum of money to instruct her in a trade, but
that the defendant seduced her and rendered her unable, by
reason of pregnancy, to learn the trade.^ But the evidence of
service may be very slight ; for the making tea, milking cows,
1 Hall V. Hollander, 4 B. & C. 660 ; Daniel v. Edward, 7 Ired. 408 ; Sutton
Grinnell v. Wells, 7 M. & Gr. 1033 ; v. Huffman, 32 N. J. L 58 ; Knight v.
Eager v. Grimwood, 1 Exch. 61. But Wilcox, 14 N. Y. 413; Hartley v. Richt-
see dictum in Steplienson v. Hall, 14 meyer, 4 Comst. 38.
Barb. 222. ^ Woodward v. Anderson, 9 Bush,
2 Grinnell v. Wells, 7 M. & Gr. 1033 ; 624.
Eager v. Grimwood, 1 Exch. 61 ; Van ^ Grinnell >: Wells, 7 M. & Gr. 1033.
Horn V. Freeman, 1 Halst. 322 ; Mc- ^ piarris v. Butler, 2 M. & W. 639.
382
CHAP. IV.] child's injuries AND FRAUDS. § 261
or doing any household work at the command of the parent, is
esteemed quite sufficient to constitute the relationship of master
and servant, when the girl is residing with her father and
mother ; ^ and the right of action once clear, damages far in
excess of the loss of service are recoverable. Thus will justice,
seeing the goal clearly, drive straight towards it, regardless of
obstructions ; either finding an avenue or making one.
But to render this action maintainable, the parent must have
a genuine right to his daughter's services, however slight the
services which may be exacted. If therefore the daughter, at
the time she was seduced, was at the head of an establishment
of her own, and her father was living with her as a visitor in
her own house, she cannot be treated as holding the subordinate
position of a servant, and the action will not lie.^ Nor can a
parent sue, as the stricter rule is laid down, where the child is
really in the service of another, and, by permission of her mis-
tress, comes home to render slight assistance from time to time.'''
Nor where the child is seduced while in the service of another,
and then returns home and remains there in a state of preg-
nancy.* Nor where one's daughter had been left to shift for
herself and was another's household servant.^ But if the
daughter is away only on a temporary visit, and still forms
part of her father's family, and makes herself serviceable to
him while she is at home, such temporary absence constitutes
no impediment to an action by the father for damages.^ In a
word, the question is whether there was, at the time the injury
was committed, a hona fide relation of constructive service be-
tween parent and child, which suffered by the wrongful act of ^
the defendant.
This rule of constructive service is, however, carried very far.
1 1 Addison, Torts, 698, 701 ; Ben- Blaymire v. Haley, 6 M. & W. 55. And
nett V. Allcott, 2 T. R. 166 ; Thomp- see Kinney v. Laughenour, 89 N. C.
son V. Ross, 5 Hurl. & Nor. IG ; 365.
Manvell v. Thomson, 2 Car. & P. * Davies v. Williams, 10 Q. B. 725.
303; Vossel v. Cole, 10 Mo. 634; 2 ^ Ogborn v. Francis, 44 N. J. L.
Kent, Com. 205, 12th ed., and cases 441.
cited. « Griffiths r. Teetgen, 15 C. B. 344;
2 Manley v. Field, 7 C. B. n. s. 96. 28 E. L. & Eq. 371. See, further, 1 Ad-
3 Thompson v. Ross, 5 Hurl. & Nor. dison, Torts, 698; Evans v. Walton, L.
16; Hedges v. Tagg, L. R. 7 Ex. 283 ; R. 2 C. P. 615.
383
§ 261 THE DOMESTIC RELATIONS. [PART III.
There is a late New Jersey case, where it appeared in evidence
that the daughter was about twenty-two years of age when se-
duced, and was living a part of the time with her brother, who
occupied a farm about a mile from her father, and part of the
time with her father. While the rule was fully approved that
the father and daughter must have stood in the relation of mas-
ter and servant at the time the injury was committed, it was
further held that it was not necessary that the daughter should
be in the actual service of the father at the time of the seduc-
tion, if the relation of master and servant then existed between
them ; in other words, that the service rendered need not be
house service, nor service from day to day, but that any accus-
tomed service lost by the injury would sustain the action.^ So
in a recent English case the plaintiff's daughter, being under
age, left his house and went into service. After nearly a
month the master dismissed her at a day's notice, and the next
day, on her way to her father's house, the defendant seduced
her. It was held that as soon as the real service was termi-
nated by the master, whether rightfully or wrongfully, the girl
intending to return home, the right of the father to her services
revived, and that there was, therefore, sufficient evidence of ser-
vice to maintain an action for the seduction.^ This, the court
admitted, was carrying the doctrine of constructive service very
far. " The action, no doubt, is founded on the special ground
of loss of service (this is not very creditable, perhaps, to our
law), but the action is substantially for the aggravated injury
that the father has sustained in the seduction of the child." ^
These cases illustrate the generous disposition with which the
1 Sutton V. Huffman, 32 N. J. L. 58. be brought where there was in reality
And sec Greenwood v. Greenwood, 28 no loss of service sustained. But in
Md. 370 ; Ellington v. Ellington, 47 the later cases the courts have re-
Miss. 329 ; Emery v. Gowen, 4 Me. 33. turned to the strictness of the English
In these and some other cases there is rule. Bartley v. Richtmeyer, 4 Comst.
a manifest tendency to exclude a pre- 38. And cf. earlier and later notes to
sumption of emancipation, so as to 2 Kent, Com. 205.
leave the parent's remedy unimpaired. ^ Terry v. Hutchinson, L. R. 3 Q. B.
The rule in Virginia is more strict. 599(1868). And see Evans i'. Walton,
Lee V. Hodges, 13 Gratt. 726. In New L. R. 2 C. P. 615.
York, the doctrine of Martin v. Payne, ^ Per Cockburn, C. J., in Terry v.
9 Johns. 387, and other cases, led to Hutchinson, L. R. 3 Q. B. 599.
much confusion, by permitting suits to
384
CHAP. IV.] child's injuries AND FRAUDS. § 261
courts uphold a parent's right of action in seduction suits ; and
it is here probably that the bounds should be placed to
this rule of a daughter's service entitling the parent to sue for
damages.^
It is not necessary that the daughter should be under age in
order that the parent may maintain the action for seduction.
The important question is, whether emancipation in fact had
taken place at the time of the injury ; for if the relation of
master and servant exists between the father and his grown-up
daughter, however this relation may have been created, the
right of action is complete.^ And even where a married
woman, separated from her husband, returned to her father's
house and lived with him, performing various acts of service,
it was held that, as against a wrong-doer, it was sufficient to
prove that there was the relationship of master and servant de
facto? So where one stands in loco 'parentis, he may recover
damages, as an actual parent would ; as in the case of an
orphan living with a relation, or a friend and benefactor, and
rendering such domestic attendance and obedience as is usually
rendered by a daughter to her father.* But the parent cannot
1 Where the father verbally agrees People, 90 111 274; State v. Breice, 27
that his daughter siiall reside as ser- Conn. 319; Wood?;. State, 48 Ga. 192;
vant in a stranger's family for a cer- Boyee ". People, 55 N. Y. 644 ; Bowers
tain number of years, this does not v. State, 29 Ohio St. 542; Galvin v.
debar his right to recover for her Crouch, 65 Ind. 56. And see Bishop
seduction during her minority by her and other general writers on Criminal
employer's son. Mohry v. Hoffman, Law and Torts. The female, under
86 Penn. St. 358. Of. White v. Murt- such statutes, ought in general to be of
land, 71 111. 252. good repute for chastity previous to
In other words, the father may sue the offence, and unmarried. But stat-
/3er (7i(oc? where he does not relinquish utes differ. See State ?;. Jones, 16 Kan.
the daughter's services, but retains tlie 608. The woman might have reformed,
right to command tliem, though she re- Illicit intercourse alone does not con-
sides elsewhere. Mohry v. Hoffman, stitute what is known as seduction.
supra; Blagge v. Ilsley, 127 Mass. 191. People v. Clark, 33 Mich. 112.
Very slight service at home every ^ \ Addison, Torts, 700; Sutton v.
Sunday, where the daughter is em- Huffman, 82 N. J. L. 58 ; Greenwood v.
ployed by another, suffices. Kennedy Greenwood, 28 Md. 370 ; Stevenson v.
V. Shea, 110 Mass. 147; Riddle v. Me- Belknap, 6 Iowa, 97; Wert i;. Strouse,
Ginnis, 22 W. Va. 253. 38 N. J. L. 184.
Enticing one's daughter away for ■' Harper v. Luffkin, 7 B. & C. 387.
the purpose of prostitution or concubi- * 1 Addison, Torts, 700 ; Irwin v.
nage or seduction, is made an indictable Dearman, 11 East, 23; Edmondson v.
offence in some States. Slocum v. Machell, 2 T. R. 4 ; Williams v. Hutch-
25 385
§ 261 THE DOMESTIC RELATIONS. [PART UI.
maintain an action for the seduction of a daughter over twenty-
one and working out on her own account.^ And while, as
surviving parent, the mother might sue for her daughter's
seduction under circumstances showing service rendered her,
it is held that a mother cannot maintain an action for the
seduction of her daughter while the father was alive, though
the illicit offspring was not born until after the father's
death.2
The wrongful act for which the parent sues must be the nat-
ural and direct cause of the injury for which damages are
sought, and the damages recoverable its necessary and proxi-
mate consequence. To this principle is to be referred a curious
case in New York.^ But mental illness directly resulting from
the injury is, of itself, sufficient to support an action for loss of
services ; and such a suit might be maintainable, notwithstand-
ing seduction was followed neither by pregnancy nor sexual
disease.^
Where a person hires a girl as a servant for the purpose of
withdrawing her from her family and seducing her, this is
fraud, and the parent's right of action is not thereby forfeited ;
for in such a case the new relation of master and servant is not
hona fide created, and the former relation may be held to have
continued.^ But here we may finally observe that the latest
legislation in some States tends to place seduction suits on a
inson,3 Comst. 312; Maguinay r. Sau- definite agreement of service. Blan-
dck, 5 Sneed, 146 ; Ball v. Bruce, 21 111. chard v. Ilsley, 120 Mass. 487.
161. A grandfather standing in locoparen-
1 George r. Van Horn, 9 Barh. 5.^3. tis, and with due rights andohligations,
2 Vessel V. Cole, 10 Mo. 634; Gray may thus sue. Certwell v. Hoyt, 13
IV Durland, 50 Barb. 100. Statutes en- N. Y Supr. 575.
larging the rights of married women ^ Kniglit v. Wilcox, 14 N. Y. 413.
sometimes extend the mother's action. See Eager r. Grimwood, 1 Excli. Gl ;
Badgley v. Decker, 44 Barb. 577. A Boyle v. Brandon, 13 M. & W. 738;
widowed mother whose minor child is Reddie v. Scoolt, Peake, 240; 1 Ad-
actually in lier service has the right of dison, Torts, 701, as to the various
action. Gray v. Durland, 51 N. Y. 424. grounds of defence in seduction suits.
A mother remarried may have the * Manvell v. Thomson, 2 Car. & P.
right to sue. Lampman v. Hammond, 303; Seager v. Sligcrland, 2 Caines,
3 Thomp. & C. 293. See Hobson v. 210 ; Abrahams v. Kidney, 104 Mass.
Fullerton, 4 111. App. 282 ; Furman i'. 222.
Van Sise, 66 N. Y. 435. & Speight v. Oliviera, 2 Stark. 435 ;
But not one in whose household a 2 Kent, Com. 205; 1 Addison, Torts,
girl stays temporarily without any 699 ; Dain v. Wyckoff, 18 N. Y. 45.
386
CHAP. IV.] child's injuries AND FRAUDS. § 262
more natural footing, by enabling the woman to sue an offender
directly in damages for her own seduction.^
§ 262. Damages in Parental Suits for Injury to the Child. —
As to the amount of damages, cases of seduction stand on a pe-
culiar footing. The ground of action is the loss of services ;
yet the rule is well established that neither this nor the medi-
cal expenses are all that the parent can recover. Lord Ellen-
borough, in his day, declared the principle inveterate, and not
to be shaken, that in estimating damages the jury might go
beyond the mere loss of service, and give damages for the dis-
tress and anxiety of mind which the parent had sustained in
being deprived of the society and comfort of his child.^ So
must the situation in life and circumstances of the parties be
taken into consideration.^ > These principles are applied both in
England and America.
In other suits, such as for enticement, the measure of dam-
ages applied is liberal, though the rule is somewhat conflicting
in different States. It is a general principle that where ser-
vants are enticed away, or forcibly abducted, the jury may
award ample compensation for all the damage resulting from
1 Thompson v. Youn^, 51 Ind. 599; tion ; and as the parent of other chil-
Watson V. Watson, 49 Mich. 540 ; 50 dren whose morals may be corrupted
Mich. 602. To sue tlius, alleging that by her example." Bedford v. M'Kowl,
she permitted seduction in considera- 3 Esp. 120. And see Robinson i'.
tion of a promise to pay money which Burton, 5 Harring. oo5; Klopfer v.
the defendant failed to keep, is a bar Bromme, 26 Wis. 372 ; Pence v. Dozier,
to the action. Wilson v. Ensworth, 85 7 Bush, 133 ; Dahi v. WyckofE, 18
Ind 399. But previous chastity need N. Y. 45; White v. Murtland, 71 III.
not be averred. li'2 Ind. 494. Nor 250. See further, on this subject,
special damage. 88 Ind. 298. White v. Campbell, 13 Gratt. 573;
^ Irwin!'. Dearman, 11 East, 23. Sellars r. Kinder, 1 Head, 134; 1 Ad-
3 Andrews v. Aslcey, 8 Car. & P. 9. dison, Torts, 703; Eager v. Grimwood,
" In point of form," observes Lord 1 Exch. 61; Richardson v. Fonts, 11
Eldon, "the action only purports to Ind. 466; Reed ?;. Williams, 5 Sneed,
give a recompense for loss of service ; 580 ; 31 Minn. 54 ; Vessel v. Cole, 10
but we cannot shut our eyes to the Mo. 634 ; 2 Kent, Com. 205, 9th ed. ??.. ;
fact that it is an action brought by a Bigelow on Torts. E.xemplary dam-
parent for an injury to her child, and ages have been denied where the daugh-
the jury may take into their consider- ter's willing misconduct appeared. 82
ation all that she can feel from the na- Mo. 341. And where before confine-
ture of the loss. They may look upon ment the daughter marries another
her as a parent losing the comfort, as man, the father's damages may prove
well as the service, of her daughter, in merely nominal. 70 Iowa, 223.
whose virtue she can feel no consola-
387
§ 2G3 THE DOMESTIC RELATIONS. [PART III.
the wrongful act.^ A parent can recover damages for the pro-
spective vahie of the services of a young child permanently
injured or killed by an act of negligence ;2 and a reasonable
expectation of pecuniary benefit is favorably considered where
the parent is old and infirm.^ IMedical expenses for the care
and cure of the child with the expense of nursing, are of course
recoverable. And even the expense of the mother's sickness,
which was caused, in an extreme case, by the shock to her feel-
ings, has been treated as a proper item of special damage.* So,
it would seem, are the costs of prosecuting the suit.^ But the
parent cannot recover for lacerated feelings, as well as for other
injuries personal to the child, as in seduction suits.^ But local
statutes will sometimes affect the question of damages here as
well as the right of action itself J
§ 263. Parental Liability ^w■here the Child is the Injuring Party.
— Second. As to the parent's liability to action, where the child
is the injuring party. The question is sometimes asked, how
far a father is responsible in damages for the torts and frauds
of his infant child. We have already seen that the husband's
responsibility for his wife's injuries at the common law is
founded upon his right, by marriage, to her entire property.
Very different is the relation of parent and child, where, it is
now plain, the father has little more than the right to claim
his child's wages, so far as the infant's property is con-
1 Gunter v. Astor, 4 Moore, 15; 1 Ga. 320; Houston R.r. Miller, 49 Tex.
Addison, Torts, 704 ; Lumley v. Gye, 2 322 ; Hussey v. Ryan, 64 Md. 426.
El. & Bl. 216; Magee v. Holland, 3 ^ Duckworth i;. Johnson, 4 H. & N.
Dutch. 86. 658 ; Franklin v. Southeastern R., 3 H.
2 Supra, § 2.59; Drew v. Sixth Ave- & N. 211.
nue R. R. Co., 26 N. Y. 49 ; Ford v. * Ford v. Monroe, 20 Wend. 210.
Monroe, 20 Wend. 210; Hoover v. Such damages apiiear exceptional.
Heim, 7 Watts, 62 ; Franklin v. South- Harford (^o. r. Hamilton, 60 Md. 340.
eastern R. R. Co., 3 Hurl. & Nor. 211. ^ Wilt v. Vickers, 8 Watts, 227.
But see Williams v. Hutchinson, 3 •> Penn. R. R. Co. v. Kelly, 31 Penn.
Comst. 314. For the loss of service St. 372 ; Sawyer y. Sauer, 10 Kan. 519;
for the remainder of the period of mi- Cowden v. Wright, 24 Wend. 429.
nority, a parent may usually recover But see, as to battery of a child, Kling-
if such loss necessarily result ; while if man v. Holmes, 54 Mo. 304. See also
the injury continue beyond that pe- Rooney v. Milwaukee Chair Co., 65
riod the right is usually in the child. Wis. 397.
Traver v. Eighth Avenue R., 4 Abb. ■? M'Carthy v. Guild, 12 Met. 291 ;
App. 422 ; McDowell v. Georgia R., 60 Kennard v. Burton, 25 Me. 39.
388
CHAP. IV.] child's injuries AND FRAUDS. § 263
ceriied.^ Yet some have been misled into the belief that the two
cases are entirely analogous ; and they would hold the father
liable for his son's wrongful acts, as a husband for the wife's. It
is held in Pennsylvania that the father may be sued in trespass
for an injury committed by his son, when they ride together
in the fathers team, and the act is committed in the latter's
presence.^ Whether the principle can be safely carried further
is extremely doubtful. In ]\Iissouri, on the other hand, and
with better reason, it is decided that a father is not responsible
for an assault committed by his infant son, without his sanc-
tion ; not even though the child was known by him to be of a
vicious temper.^ The same rule, with more caution, has been
applied in New York, in a case where it was shown that a minor
daughter, in her father's absence, and without his authority or
approval, wilfully set his dog, not ordinarily a vicious animal,
upon the plaintiff's hog, which was thereby bitten and killed.*
In Wisconsin, quite recently, a father was held liable for in-
jury sustained by a passer-by whose horse took fright, because
he carelessly permitted his young children to fire pistols and
shout on the highway and thus contributed to the accident.^
But for injuries occasioned by the infant with his father's
direct sanction or participation, or while in the due course of
employment by the father, the latter is held answerable to
others. Thus, a minor son, under a contract with his father
to clear a parcel of land, did it so negligently as to destroy a
neighbor's property by fire ; and for this the parent was held to
damages at the neighbor's suit.^
1 Nor can the parent make the in- 1.3 Kan. 348. And see Baker v. Morris,
fant child's real estate itself liable, even 33 Kan. 580. See also Paulin i\ How-
for a necessary debt of his own crea- ser, 63 111. 312 ; Chandler r. Deaton, 37
tion. Cox I'. Storts, 14 Bush, 602. Te.x. 406. The want of parental knowl-
2 Strohl V. Levan, 39 Penn. St. 177. edge or sanction here appeared. For the
And see Lashbrook v. Patten, 1 Duvall, peculiar rule of the Louisiana code as
316. to parental liability in such cases, see
3 Baker v. Haldeman, 24 Mo. 219; 35 La. Ann. 1.3, 891 ; 37 La. Ann. 92.
Paul V. Hummel, 43 Mo. 119. s Hoverson r. Noker, 60 Wis. 511.
* Tifft V. Tifft, 4 Denio, 175. And Evidence was admitted that the father
see McManus r. Crickett, 1 East, 106 ; knew his children had thus miscon-
Foster v. Essex Bank, 17 Mass. 479. ducted before. Cf. Hagerty v. Powers,
Nor was the father held liable in 66 Cal. 368.
damages where his son set another's ^ Teagarden v. McLaughlin, 86 Ind.
property on fire, in Edwards v. Crume, 476.
389
263
THE DOMESTIC RELATIONS.
[part III.
For all such injuries (subject to the usual scope of negligent
performance as another's agent or servant ^) an infant is answer-
able at law, out of his own estate ; at least, if he is old enough
to have known better.^ But how as to the parent's liability ?
Tor that is the present issue. The principles of the Eoman law
cannot be cited to much advantage, in support of such liability,
on the score of agency, or otherwise ; since under that system
the child was little better than the slave of his father ; and even
as to slaves, it was considered at the time of the Institutes that
it would be very unjust, when a servant did a wrongful act, to
make the master lose anything more than the servant himself.^
The modern rule of the civil law, in European countries, is to
make every person responsible for injuries caused by the act of
persons and things under his dominion ; but a father incurs no
responsibility for the act of his minor child, if he can prove
that he was not able to prevent the act which gives rise to the
liability.*
1 See §§ 489-491.
2 Campbell v. Stakes, 2 Wend. 137 ;
" Infancy," post, Part V. c. 4.
3 Smith's Diet. Greek and Roman
Antiq. " Novalis Actio." Inst. lib. 4,
tit. 8, by Saunders.
* Civil Code France, art. 1384;
Cleaveland v. Mayo, 19 La. 414. See
Baker v. Haldeman, 24 Mo. 219.
This point received some attention
in a modern English case, where tlie
father of a young man, about seven-
teen or eiglileen, was sued for trespa.ss
and false imprisonment. The plaintiff
was property-man at a theatre, of
which the defendant was lessee. The
young man, minor son of the defend-
ant, acted as his father's treasurer.
The plaintiff, in his character of prop-
erty-man, presented to the treasurer
an account, containing some wrongful
of obtaining money by false pretences.
The plaintiff went before a magistrate,
and was remanded, but was ultimately
discharged. After the remand, the son
told his father what he had done ; the
latter did not prohibit him from pro-
ceeding in the matter, but said that as
the son had begun it, he would not in-
terfere. The court decided that these
facts showed neither a previous au-
thority nor subsequent ratification by
the father, sufficient to render him lia-
ble for his son's conduct, and on that
ground dismissed the suit. Moon o.
Towers, 8 C. B. n. s. fill.
The opinions of the several judges in
this case, though expressed by way of
dicta, exhibit considerable reluctance
to hold the f atlier liable, as a trespasser,
for his son's torts. Says Willes, J.,
approved by Byles, J., ib. ; Williams,
items of disbursement. The defend- J., (/'(6. :" The tendency of juries, where
ant, conceiving this to be an intentional
fraud on the part of the plaintiff, dis-
missed him from his employment. His
son thereupon, without consulting the
father, indiscreetly caused the plaintiff
to be apprehended by a policeman,
and taken to the station on a charge
390
persons under age have incurred debts
or committed wrongs, to make their
relatives pay, should, in my opinion,
be checked bj' the courts. No man
ought, as a general rule, to be respon-
sible for acts not his own." And says
the Chief Justice: "Suppose tiie son
CHAP, v.] DUTIES AND RIGHTS OF CHILDREN. § 264
On the whole it may be stated as a rule that a father is not
liable in damages for the torts of his child, committed without
his knowledge, consent, participation, or sanction, and not in
the course of his employment of the child.
CHAPTER V.
DUTIES AND EIGHTS OF CHILDREN, WITH REFERENCE TO THEIR
PARENTS.
§ 264. General Duties of Children to Parents. — " The duties
of children to their parents," says Blackstone, "arise from a
principle of natural justice and retribution. For to those who
gave us existence we naturally owe subjection and obedience
during our minority, and honor and reverence ever after ; they
who protected the weakness of our infancy are entitled to our
protection in the infirmity of their age ; they who by sustenance
and education have enabled their offspring to prosper ought in
return to be supported by that offspring in case they stand in
need of assistance." ^ Upon this principle rest whatever duties
are enjoined upon children to their parents by positive law.
The Athenians compelled children to provide for their father
when fallen into poverty .^ And Kent, enforcing the same
precept, cites several other historical precedents less to the
purpose.^
Perhaps this principle could not have been better expressed
than in these words of Blackstone ; but it is to be observed that
the obligation, as a legal one, is somewhat vague and indefinite,
extending little farther than the succor of parents in distress.
Gratitude, certainly, is what all parents true to their trust have
had knocked the plaintiff down, and the vant, and his master's liability, see
father had said, ' I think it served him Master and Servant, infra, §§ 488-491.
right,' would that be such a ratification ^ 1 Bl. Com. 45o.
of the son's act as to make the father ^ 2 Potter's Antiq. 347-351,
liable as a trespasser 1 " Per Erie, ^ 2 Kent, Com. 207.
C. J., lb. As to the injuries of a ser-
391
§ 265 THE DOMESTIC RELATIONS, [PAllT III.
the right to expect ; but whether it is due to those who were
negligent and unfaithful to their offspring may admit at this
day of much doubt. In other words, honor and reverence are
justly awarded according to one's deserts. The child, when full
grown, naturally marries and assumes parental liabilities of his
own ; and in the usual course of things adults, whether father
or son, will prudently provide for their future as well as their
present wants. Some have thought it the duty of fathers to
leave property to their children at their death, — a principle
somewhat at conflict with this right to lean upon their children
for their own maintenance. Yet exceptional cases must occur
where a father, faithful to his own obligations, is yet left,
through misfortune, penniless in his old age ; and here the voice
of nature bids the children aid, comfort, and relieve. Municipal
law quickens the child, and says, " If your parent, however
vagabond and worthless, becomes unable to maintain himself,
the public shall not relieve him as a pauper ; you, his children,
being of sufficient means, must assume the burden." We speak
not here of the mother, whose moral claims upon her children,
if her own husband prove incapable, are much stronger ; yet
it must be admitted that the municipal law makes no great
distinction on her behalf.
§ 265. Whether Child may be Legally Bound to Support Par-
ent ; Statutes. — Thus may be explained what appears now a
well-settled rule at the common law ; namely, that there is no
legal obligation resting upon a child to support a parent; that,
while the parent is bound to supply necessaries to an infant
child, an adult child, in the absence of positive statute, or a legal
contract on his own part, is not bound to supply necessaries to
his aged parent.^
But statutes have been enacted, both in England and most
parts of the United States, to enforce this imperfect legal obli-
gation, usually to the extent of relieving cities and towns from
the support of paupers. Such is the tenor of the English stat-
utes of 43 Eliz. and 5 Geo. I., to which allusion has already
1 Reeve, Dom. Rel. 284 ; Rex v. N. H. 558 ; Stone v. Stone, 32 Conn.
Munden, 1 Stra. 190 ; Edwards v. Davis, 142 ; Becker v. Gibson, 70 Ind. 239.
16 Johns. 281 ; Lebanon v. Griffin, 45
392
CHAP, v.] DUTIES AND RIGHTS OF CHILDREN. § 265
been made, which declare in effect that the children, being of
sufficient ability, of poor, old, lame, or impotent persons, not
able to maintain themselves, must relieve and maintain them.^
Ingratitude, to use the word in a more general sense, the parent
may punish still further, as other statutes prescribe, by disin-
heriting the undutiful children by will ; ^ a punishment found
by no means terrible in cases which arise under the statute of
Elizabeth. The moral obligation of honor and reverence still
remains clear and unquestioned, so far as parental faithfulness
has earned it ; doubtful in its more extended application, yet
always a favorite theme of the poet and dramatist, and never to
be lightly esteemed among men.^
The law does not imply, then, a promise from the child to
pay for necessaries furnished without his request to an indigent
parent ; and the natural obligation can only be enforced in the
mode pointed out by statute.^ The promise of a child to pay
for past expenditures in relief of an indigent parent is not bind-
ing in law.^ But for necessaries or other goods furnished to
the parent, or for the parent's benefit, at a grown child's re-
quest, the latter is chargeable, as any one else would be.^ And
it is held, further, that where one of several children renders
support at the request of the others, they will be liable on an
implied promise to contributed So much, then, for the duties
of children.
1 Supra, ch. 2; 2 Kent, Com. 208; * Rex v. Munden, 1 Stra. 190; Ed-
Dierkes v. Philadelphia, 93 Penn. St. wards v. Davis, 16 Johns. 281 ; Dawson
270. V. Dawson, 12 Iowa, 512. See Johnson
2 N. Y. Rev. Sts. p. 614; 2 Kent, v. Ballard, 11 Rich. 178.
Com. 208; and see Ex parte Hunt, 5 & Mills v. Wyman, 3 Pick. 207;
Cow. 284. Cook v. Bradley, 7 Conn. 57. It is
3 No one can read " King Lear " otherwise by the Civil Code of Louisi-
without recognizing the sublimity of ana, art. 245.
an unquestioning faith in tliis moral ^ Lebanon v. Griffin, 45 N. H. 558 ;
duty. Kent (2 Com. 207), quotes the Gordon v. Dix, 106 Mass. 305; Becker
speech of Euryalus in the ^neid ; but v. Gibson, 70 Ind. 2.39. Such a claim
the instance of pins j-Eneas himself is might now be enforced, in a suitable
still stronger, perhaps the strongest to case, against the separate estate of a
be found in the classics ; devotion to married daughter, on the usual princi-
his aged father rendering him more pies applicable to her contracts,
illustrious in song than his heroic "^ Stone v. Stone, 32 Conn. 142. And
achievements, and largely atoning, as see Succession of Olivier, 18 La. Ann.
some would say, for the sin of conjugal 594; Marsh v. Blackman, 50 Barb.
unfaithfulness. 329.
393
§ 267 THE DOMESTIC RELATIONS. [PART III.
§ 266. Rights of Children in General. — The rights of children
with reference to their parents may be considered more at
length. We have already had occasion to observe that the
child may to a certain extent bind the parent as agent, not only
for necessaries, but in some other transactions, v^here the child
acts within the scope of authority properly conferred. But
general transactions require proof of actual authority ; and a
son has ordinarily no more right, as such, to lend his father's
goods than a stranger.^ And proof that in one instance the
use, by a son, of his father's name upon negotiable paper dis-
counted at a bank, was known and acquiesced in by the father,
is not proof that the son was authorized to sign subsequent
notes in the same manner.^ The principles of agency are here
applied.^
§ 267. The Emancipation of a Child. — A father may eman-
cipate his young child and thus give him a right to his own
earnings. What, then, is emancipation as used with reference
to the child ? Plainly, the term emancipation is borrowed from
the Roman law, and may be referred to the old formality of
enfranchisement by the father. This in ancient times was done
by an imaginary sale, but Justinian substituted the simpler
proceeding of manumission before a magistrate* In Louisiana,
the emancipation of minors is expressly recognized and regu-
lated by law, and decrees of emancipation are judicially made.^
At the English law, the term " emancipation " is generally used
with reference to matters of parochial settlement and the sup-
port of paupers.^ But in American cases it often has a signifi-
cance more nearly approaching that of the civil law ; though we
are apt to use the word without much regard to precision.
We find in the English books little said as to the emancipa-
tion of minor children by their fathers. In fact, the English
municipal system is so different from ours, that the paternal
1 Johnson v. Stone, 40 N. H. 197 ; * Burrill, Law Diet. " Emancipa-
supra, § 241. But see Bennett v. Gillett, tion ;" Bouvier, ib. ; Inst. 1, 12.
3 Minn. 423. ^ Code, art. 307 et seq. ; Allison v.
2 Greenfield Bank v. Crafts, 2 Allen, Watson, 36 La. Ann. 616.
269. « See 7 Q. B. 574, n.
3 See also Sequin v. Peterson, 45 Vt.
255 ; supra, § 253.
394
CHAP, v.] DUTIES AND RIGHTS OF CHILDREN. § 267 a
authority during the period of minority, except as to custody,
gives rise to little controversy. But there is a case where an
infant was held not to have been emancipated by his enlist-
ment.^ And in this and some other instances the principle of
emancipation was somewhat discussed ; and the doctrine has
been maintained by Lord Kenyon and others, that during the
minority of the child he will remain, under almost any circum-
stances, unemancipated ; that in fact there can be no emancipa-
tion of an infant unless he marries, and so becomes himself the
head of a family, or contracts some other relation, so as to
wholly and permanently exclude the parental control.^
Emancipation is not so strictly construed in this country.
The American doctrine, as frequently stated, is that a father
may " emancipate " his child for the whole remaining period of
minority, or for a shorter term ; that this emancipation may bo
by an instrument in writing, by verbal agreement or license, or
by implication from his conduct ; and that emancipation is valid
against creditors, and to some extent against the father.^ This
doctrine of emancipation is peculiarly favored where both the
child and parent invoke it in order to protect the minor's earn-
ings against the unfortunate parent's creditors. Let us see then,
first, how emancipation may in this country be legally brought
about; second, what is its legal effect.
§ 267 «. How a Minor Child is Emancipated; Parental Relin-
quishment of Right to Earnings. — And first, emancipation may
be either by instrument in writing or by parol agreement, or it
may be inferred from the conduct of the parent. As to instru-
ments in writing, usually known as indentures, the statutes of
the different States are quite explicit; and the same general
doctrines apply to children who are bound out as to apprentices
generally.* But such deeds, so far as they derogate from the
1 Rex V. Rotherfield Grays, 1 B. & Varney v. Young, 11 Vt. 258; Rush v.
C. 347. Vought, 55 Penn. St. 437.
2 Rex V. Roach, 6 T. R. 247 ; Rex * 4 Com. Dig. 579 ; State v. Taylor,
V. "Wilmington, 5 B. & Ad. 525. 2 Penning. 467 ; Bolton r. Miller, 6
3 Abbott V. Converse, 4 Allen, 530, Ind. 262. See Master and Servant,
per Chapman, J.; 2 Kent, Com. 194, infm, § 457; Nickerson v. Easton, 12
n. ; Whiting v. Earle, 3 Pick. 201 ; Bur- Pick. 110.
lingame v. Burlingame, 7 Cow. 92 ;
395
§ 267 a THE DOMESTIC RELATIONS. [PAET III.
child's personal independence and welfare, are not greatly fa-
vored ; they are usually construed with great strictness as
between the minor and his parent, guardian, or master ; and
the policy of American law is to require the consent of the
child himself to the instrument, where he has passed the period
of nurture.^
Next, as to emancipation by parol agreement or license of
the parent. In a well-considered Massachusetts case, it is
decided that the emancipation of a minor child by parol agree-
ment and without consideration is revocable, until acted upon.^
Yet there can be little doulfc at the present day that a father
can verbally sell or give his minor son his time ; and that after
payment or performance the son is entitled to his earnings.^
A special contract with a third person, authorizing him to em-
ploy and pay the child himself, will bind the parent, and pay-
ment to the child will be a defence against any action brought
by his father against the employer. Parol agreements are,
however, within the statute of frauds.*
Emancipation, strictly so called, is not to be presumed ; it
must be proved. Where it appears that the father, by parol,
places his daughter in a certain family, that by the terms of
the agreement the employer may turn her away when dissat-
isfied, that the father may rescind the contract at pleasure, and
reclaim his daughter ; these, and similar circumstances, may be
sufficient to entitle the child to her own wages for the time
being, but they cannot constitute emancipation as against the
father.^ We are to distinguish, in fact, between a license for
the child to go out and work temporarily, and the more formal
renunciation of parental rights. Thus, if the father agrees to
1 The minor cliild of pauper parents See Morris v. Low, 4 Stew. &Port. 123.
is not emancipated so as to gain a set- Biit see Chase v. Smith, 5 Vt. 556.
tlement by tlie indenture of the select- ^ Shute v. Dorr, 5 Wend. 204 ; Sned-
men. Frankfort v. New Vineyard, 48 iker v. Everingham, 3 Dutch. 143 ; Gale
Me. 565. But an indenture inoperative v. Parrott, 1 N. H. 28 ; United States v.
against the child by reason of infor- Metz, 2 Watts, 406 ; Corey v. Corey, 19
mality may yet afford proof that the Pick. 29.
parent meant to relinquish the child's ^ Shute v. Dorr, 5 Wend. 204.
earnings. Kerwin v. Wright, 59 Ind. ^ Sumner v. Sehec, 3 Me. 223. See
369. Clark v. Fitch, 2 Wend. 459; Clinton
2 Abbott V. Converse, 4 Allen. 530. v. York, 26 Me. 167.
396
CHAP, v.] DUTIES AND EIGHTS OF CHILDREN. § 267 a
pay his son so much for every day he would labor for another,
but without intending to give him his time, and merely as an
incentive to industry, this is not to be construed into a contract
of emancipation, but rather as a mere gratuity to encourage the
son in the formation of industrious and useful habits.^ But
other circumstances may raise a special contract on the minor's
behalf, or indeed be held to emancipate him altogether. It is a
well-settled rule in this country that if the parent absconds,
turns his child out of doors, or leaves him to shift for himself,
the son is entitled to his own wages ; ^ and our courts are very
liberal in allowing children to avail themselves of any breach
of parental obligation so as to earn an honest livelihood by
their own toil.^ The presumption raised in such cases may be
termed a presumption of necessity. So where the husband
abandons his child to the care of the mother, his subsequent
claims for the earnings of either are to be regarded with very
little favor.* Or where he is able to support the child, and yet
forces the child to labor abroad unsuitably to the child's social
position.^ Even slighter circumstances, which impute no mis-
conduct to the father, but evince a consent for his son to leave
the parental roof and go into the world to seek his own fortune,
are often construed into emancipation.^ But the desertion of a
minor from his father's home, with vagrancy and crime, does
not of itself constitute emancipation." The father may prac-
tically emancipate from a prudent regard to his own circum-
stances and the child's benefit ; he may relinquish all right to
his infant child's future earnings as against his own creditors.^
1 Arnold ?;. Norton, 25 Conn. 92. 440; Lyon v. Boiling, 14 Ala. 753;
2 And an insolvent father may give Ream v. Watkins, 27 Mo. 516.
his son his time and future earnings, so * Wodell v. Coggeshall, 2 Met. 89.
as to benefit tlie child as against the See Dennysville v. Trescott, 30 Me. 470.
father's own creditors. Atwood v. Hoi- ^ Farrell ?;. Farrell, 3 Houst. 633.
comb, 39 Conn. 270 ; supra, § 252. 6 Campbell v. Campbell, 3 Stockt.
3 Clinton v. York, 26 Me. 167 ; Cloud 268 ; Johnson v. Gibson, 4 E. D. Smith,
r. Hamilton, 11 Humph. 104; Nightin- 231; Dicks v. Grissom, 1 Freem. Ch.
gale V. Withington, 15 Mass. 275; 428; Dodge v. Favor, 15 Gray, 82;
Stansbury v. Bertron, 7 W. & S. 362 ; Boobier v. Boobier, 39 Me. 406. But
Everett v. Sherfey, 1 Iowa, 356 ; The see Stiles v. Granville, 6 Cush. 458.
Etna, Ware, 462 ; Gary v. James, 4 ^ Bangor v. Readfield, .32 Me. 66.
Desaus, 185; Conovar v. Cooper, 3 8 Siemens y. Brillhart, 17 Neb. 335;
Barb. 115 ; Jenison v. Graves, 2 Blackf. 188 Mass. 249.
397
§ 267 a
THE DOMESTIC RELATIONS.
[part IIT.
And there may be complete emancipation, although the minor
continues to reside with his father.^ In general, according to
modern American authorities, a parent's relinquishment, by-
agreement and consent, of all claim to the earnings of his
minor child in any particular service, may be implied from
circumstances,^ and it is a question to be determined by the
given circumstances.
The marriage of an infant with his parent's consent removes
him from parental control, and, we may presume, gives him a
right, as against the father, to apply all his earnings to the
support of his family ; but whether all the consequences of
legal emancipation must necessarily follow has been held doubt-
ful.^ Marriage, without the consent of the parent, ought to
confer the same right upon an infant, inasmuch as the claims
of wife and child in either case are paramount, and the con-
sequences of all marriages are much the same ; but in Maine
it has been decided otherwise, and that the disobedient infant
is punishable by being compelled to pay his father his earnings ;
though what is to become of the wife meantime does not clearly
appear.* A minor daughter is emancipated by her marriage
with her father's consent; and here, at least, it is ruled that
1 M'Closky V. Cyphert, 27 Penn. St.
220; Dierker v. Hess, 54 Mo. 246;
Donegal! v. Davis, 66 Ala. 362.
2 Siiprn, §§ 252, 261 ; Monaghan v.
School District, .S8 Wis. 100; Dierker
V. Hess, 54 Mo. 246. And this doctrine
is applied the more strongly as against
a parent's creditors and others, who,
against the will of both parent and
child, maintain that the child's earn-
ings are not liis own. The proof should
be suflScient and clear as against the
parent who denies such relinquishment.
Monaglian v. School District, 38 Wis.
100. And see 72 Me. 509. Where the
son of one of the partners was appren-
ticed to the firm, it was held a question
for the jury, (the firm having assigned
to creditors,) whether the father had
emancipated his son. Beaver r. Bare,
104 Penn. St. 58. An indenture bind-
ing out his son so that compensation
398
shall be paid to the son, does not eman-
cipate in such a sense as to debar the
father from suing the employer for
breach of the covenant ; at least where
the son, having joined in the indenture,
does not dissent. Dickinson v. Tal-
mage, lo8 Mass. 249.
Remarriage of a widowed mother,
whose new husband does not assume
the paternal functions towards the
cliikl, favors the idea of emancipation.
HoUingsworth r. Swedenborg, 49 Ind.
378. A widowed mother may relin-
quish all claim. Lind v. Sullestadt, 21
Hun, 364. But as to a second marriage
affecting the child's pauper settlement,
see Hampden v. Troy, 70 Me. 484.
3 Taunton v. Plymouth, 15 Mass.
203 ; Dicks v. Grissom, 1 Freem. Ch.
428.
4 White V. Henry, 24 Me. 531. See
Burr V. Wilson, 18 Tex. 367.
CHAP, v.] DUTIES AND EIGHTS OF CHILDREN. § 268
consent may be inferred from circumstances.^ It may well be
said, as the later and truer theory, that if the infant's marriage
be a legal and valid one, though contracted in defiance of the
parent's wishes, parental rights and control must yield to the
new and superior status which the child has thereby assumed.^
§ 268. Effect of Minor Child's Emancipation or Relinquish-
ment. — Second. As to the effect of emancipation. The con-j
sequence is, on the one hand, to give the child the right to hisj
own wages, the disposal of his own time, and, in a great meas-
ure, the control of his own person ; on the other hand, to relieve
the parent of all legal obligation to support.^ Moreover, the
emancipated child's earnings go to his administrator upon his
decease, to be distributed according to law.* Property pur-
chased by the emancipated minor with his own means, too, is
undoubtedly his own, and not subject to the parent's control or
disposal.^
A father may give to his son a part instead of the whole
period of his minority, in which case the rights of the latter are
limited accordingly.^ If the father receives his son's earnings
after givinsf the son his time, it will be a good consideration for
any promise from the father.' And he cannot sue for the ser-
vices of such son performed within the period embraced by the
agreement, although he has given notice to the party employing
the son not to pay his wages to him.^ Nor can the father s
creditors attach such earnings, or property which was pur-
chased therewith for the infant's benefit.^ But the child sues
1 Biicksport V. Rockland, 56 Me. 22. Wodell v. Coggcshall, 2 Met. 89 ; Br.iy
2 Aklrich v. Bennett, 63 N. 11. 415. i-. Wheeler, 29 Vt. 5U.
3 Nightingale v. Withington, 15 9 Chase r. Elkins, 2 Vt. 290 ; Weeks
Mass. 2"2; Core}- v. Core.v, 19 Pick. r. Leigh ton, 5 N. H. .343 ; M'Closkey r.
29; Hollingsvvorth v. Rwedenborg, 49 Cyphert, 27 Penn. St. 220; Bobo v.
Ind. 378; Varney v. Youn?, 11 Vt. Bryson, 21 Ark. 387 ; Lord ?•. Poor, 23
258 ; Johnson v. Gibson, 4 E. D. Smith, Me. 569 ; Lyon v. Boiling. 14 Ala. 753 ;
281. Johnson v. Silsbee, 49 N. H. 543 ; Dier-
* Smith V. Knowlton, 11 N. H. 191. ker v. Hess, 54 Mo. 246; Lind i-. Sulle-
s 6 Mont. 243; § 255. stadt, 21 Hun, .364. As to an infant's
6 Tillotson V. M'Crillis, 11 Vt. 477. suits, see post, Part V. c. 6. And see
And see Winn v. Sprague, 35 Vt. 243 ; Benziger v. IVIiller, 50 Ala. 206. Re-
supra, § 252. covery by the son in a suit would bar
" Jenney v. Alden, 12 Mass. 375. an action by the father. Scott i-. White,
8 Morse v. Welton, 6 Conn. 547; 71111.287.
399
§ 269 THE DOMESTIC RELATIONS. [PART III.
in such case for his own wages.^ And if he is actually eman-
cipated by his father, and an express promise is made to pay
him for his labor, with the consent of his father, no other
notice of his emancipation is necessary to charge the defend-
ant and enable the minor to sue.^ In brief, the minor who is
released from his father's service stands, as to his contracts for
labor either with strangers or with him, upon the same footing
as if he had arrived at full age ; and such being the case, the
father may himself contract to employ and pay the child for
his services, and be bound in consequence like any stranger to
fulfil his agreement.^
§ 269. Rights of Full-grown Children. — A child, on arriving
at full age, becomes emancipated.'* But whether son or daugh-
ter, the 'child, by continuing with the parent and living at the
same home, may still be legally in the service of the parent.
On this point there is no dispute; but in settling the pre-
sumptions of law there is apparently some conflict of authori-
ties. Thus, where the parent sues for loss of services because
of the seduction of a grown-up or minor daughter, a strong
disposition is frequently manifested to rule against complete
emancipation so as to give damages. Where, however, the con-
flict is between parent and an adult child, over work done for
a stranger, the tendency is in favor of complete emancipation,
and to allow the child, attained to full age, the right to control
his own wages ; this being for his benefit. So, too, a parent is
not liable to third parties for the board or necessaries of his
adult children, in the absence of an express promise, or of facts
from which an implied promise may be inferred ; ^ while as
between a parent and his own adult children peculiar circum-
stances may have arisen.
1 Ream v. Watkins, 27 Mo. 516. 3 Steel v. Steel, 12 Penn. St. 64 ;
2 Wood V. Corcoran, 1 Allen, 40.5. Hall v. Hail, 44 N. H. 29-3 ; Wright v.
The earnings of an emancipated child Dean, 79 Ind. 407. An emancipated
cannot be attached by trustee process child ceases to follow the settlement of
for the father's debts. Manchester v. Iiis father. Orneville v. Glenburn, 70
Smith, 12 Pick. 113. And see Bray v. Me. 35.3. Cf. North Yarmouth v.
Wheeler, 29 Vt. 514. Portland, 73 Me. 108.
The father cannot retract his con- * 2 Kent, Com. 206 ; Poultney v.
sent that the child shall have his own Glover, 23 Vt. 328 ; Hardwick v. Paulet,
wages after the wages are earned. Tor- 36 Vt. 320 ; supra, § 25'2.
rens v. Campbell, 74 Penn. St. 470. * Hawkins v. Hyde, 55 Vt. 55.
400
CHAP, v.] DUTIES AND RIGHTS OF CHILDREN. § 269
If a child, after arriving at the age of twenty-one years, con-
tinues to live, labor, and render service in the father's family,
with his knowledge and consent, but without any agreement or
understanding as to compensation, the law raises no presump-
tion of a promise to enable the child to maintain an action
against the father to recover compensation.^ The presumption
here is, that the parties do not contemplate a payment of wages
for services, on the one hand, nor a claim for board and lodging,
on the other. For where the relation of parent and child exists,
the law will not readily assume that of debtor and creditor like-
wise ; but board and services may constitute a fair equivalent
in the general household. But this presumption may be over-|
thrown, and the reverse established, by proof of an express or
implied contract to that effect ; an implied contract being proven
by facts and circumstances which show that both parties, at the
time the services were performed, contemplated or intended pecu-
niary recompense.^ If an express contract by the parent to pay
for the child's services be thus shown, but not the rate of com-
pensation, a recovery may be had upon a quantum meruit for
what these services were fairly worth.^ The declarations of
1 Dye r. Kerr, 15 Barb. 444; Lipe v. agency to bind him be shown. lb.;
Eisenlerd, 32 N. Y. 220; Mosteller's Crane ?;. Baudoine, 55 N. Y. 256 ; Mills
Appeal, 30 Penn. St. 473; Ridgway v. v. Wyman, 3 Pick. 207; Boyd v. Sap-
English, 2 N.J. 400; Andover v. Merri- pington, 4 Watts, 247; § 241.
mack County, 37 N. H. 437 ; Williams 2 Miller v. Miller, 16 111. 206 ; Fitch
V. Barnes, 3 Dev. 348; Prickctt v. r. Peckhani, 16 Vt. 150; Hart )•. Hart.
Prickett, 5 C. E. Green, 478 ; Perry v. 41 Mo. 441 ; Updike v. Ten Broeck, 3
Perry, 2 Duv. (Ky.) 312; Heywood ?;. Vroom, 105; Freeman v. Freeman, 65
Brooks, 47 N. H. 231; Wilson?;. Wil- 111. 106; Van Schoyck v. Backus, 18
son, 52 Iowa, 44 ; Gardner y. Schooley, N. Y. Supr. 68; Hilbish t'. Hilbish, 71
25 N. J. Eq. 150 ; Guffin v. First Nat. Ind. 27 ; Steel v. Steel, 12 Penn. St. 66 ;
Bank, 74 111. 259; Pellage v. Pellage, Kurtz v. Hibner, 55 111. 514; Young v.
32 Wis. 136. Herman, 97 N. C. 280. See Reando v.
Whether a father is liable for ne- Misplay, 90 Mo 251, where the parent
cessaries (e. 7., medical treatment) fur- was insane. The law implied here a
nished to his adult daughter at her contract bj' the insane person to pay
request while she is a member of his for necessaries. See Tremont v. Mount
family, and the e.xtent of her agency. Desert, 36 Me. 390 ; Leidig v. Coover's
see Blachley i'. Laba, 63 Iowa, 22. At Ex'rs, 47 Penn. St. 534. But see Put-
common law a father is not liable for nam v. Town, 34 Vt. 429.
necessaries furnished an adult child, ^ Byrnes v. Clark, 57 Wis. 13 ; Frier-
even thougli the child be at the father's muth v. Friermuth, 46 Cal. 42 ; 8 Cal.
liome when the necessaries are fur- 118.
nished ; unless at least a suitable
26 401
§ 270 THE DOMESTIC RELATIONS. [PART III.
parents in matters of this sort, if somewhat vague, are not apt
to be construed in the child's favor. And, on the other hand,
the presumption is equally against regarding the services of a
father who lives with his son and does work for him, as ren-
dered for compensation ; although here, too, the reverse might
be established by evidence of a contract.^ Circumstances which
show an unusual burden assumed by the son, or special advan-
tages reaped by the father, are sometimes favorably construed
in the child's favor. As where a grown-up son purchases his
father's farm and continues to support the father and an adult
idiot brother upon it.''^ So where the adult son assumes entire
control and management of the business, works the farm, and
adds largely to the family profits by his extraordinary skill.^
So where the son takes a deed of the farm on his agreement to
support his parents there for the rest of their lives.* Such
cases are by no means uncommon among the enterprising set-
tlers of our Western country, who cultivate the soil and live in
little colonies ; and American courts cannot be insensible to the
merits of young persons who adorn the filial relation. As to
use and occupation of real estate, where the occupant is the son
of the owner, it is held that while payment of rent may be
presumed, slight evidence is sufficient to show the contrary.^
But the rule in some of the older States is rather strict as
against inferring that either support or service can create a
debt.6
§ 270. Gifts, &c., and Transactions between Parent and Child.
— Gifts between members of the same family are not greatly to
be favored ; and as to the father's alleged gift to his child, the
presumption must be strongly in favor of the father's continued
possession as head of the family. Yet where there is sufficient
proof of a gift from father to child, fully executed by delivery,
1 Harris v. Currier, 44 Vt. 468. 6 Davis v. Goocienow, 27 Vt. 717 ;
2 House V. House, 6 Ind. 60. Seavey v. Seavey, 37 N. H. 125 ; 96
3 Adams v. Adams, 23 Ind. 50. And N. C. 149.
see Fisher v. Fisiier, 5 Wis. 472. As to stepchildren, grandchildren,
* Pratt r. Pratt, 42 Mich. 174; Brown and others standing in a quasi filial re-
V. Knapp, 79 N. Y. 186. lation, similar considerations will ap-
6 See Cakes v. Oakes, 16 111.106; ply. § 273; Broderick v. Broderick,
Hays V. Seward, 24 Ind. 352. And see 28 W. Va. 378 ; Dodson v. McAdams,
Whipple V. Dow, 2 Mass. 416. 96 N. C. 149.
402
CHAP, v.] DUTIES AND RIGHTS OF CHILDREN. § 270
it will be upheld as irre vocable. ^ Such a gift should be per-
fected in order to be sustained afterwards against him. The
parent's promise to give cannot be enforced on the child's be-
half against him or his estate, on a mere consideration of love
and affection. But the parent in equity may settle property on
his children as well as his wife, upon principles elsewhere dis-
cussed.^ And if a valuable consideration be interposed, the set-
tlement is supported more firmly ; and specific performance of an
executory promise to transfer may be in some instances decreed.^
On the other hand, while an adult child may make a bind-
ing transfer or conveyance of property to the parent, any such
transfer by way of gift or improvident contract, made just after
attaining majority, or while in general under undue parental
control and infiuence, will be jealously regarded by courts of
equity.* The same doctrine holds true of a transfer or convey-
ance to an adult child, tainted with undue influence over an
aged or infirm parent. All family arrangements of the filial
kind, whether child or parent be the weaker party, should, in
order to stand firmly, be free from fraud or undue influence on
either side, and made in good faith ; or equity will readily set
them aside.^
To support, however, a general contract between a parent and
his adult child, as against strangers, a slight consideration is
often held sufficient. And a deed of personal property from
parent to child, the parent not being indebted at the time, by
which it is agreed that the parent shall keep possession during
life, is not considered void.^ So it is held that a bond executed
by a son to his parent for S500, with interest semi-annually if
demanded, is on valuable consideration, sufficient to sustain a
conveyance of land as a purchased And even a deed from a
1 Kellogg V. Adams, 51 Wis. 138. ■* See Guardian and Ward, posf, Part
2 Supra, Part n. c. 14. IV. c. 9.
3 As wliere a writing declared a ^ Taylor r. Staples, 8 R. 1. 170; Van
valuable consideration for the promise Donge v. Van Donge, 2-3 Mich. 821 ;
to convey land, and actual entry and Rider v. Kelso, 53 Iowa, 367 ; Miller v.
improvement had taken place upon the Simonds, 72 Mo. 669 ; Jacox v. Jacox,
faith of the contract. Hagar i'. Hagar, 40 Mich. 473.
71 Mo. 610. And see Haitt v. Williams, 6 Bohn v. Headley, 7 Har. & J. 2-57 ;
72 Mo. 214; Kurtz v. Hibner, 55 111. Shepherd u. Bevin, 9 Gill. .32.
614. 7 Jackson v. Peek, 4 Wend. .300.
403
§ 271 THE DOMESTIC RELATIONS. [PART III.
parent to a child for the consideration of love and affection is
not absolutely void as against creditors. The want of a valu-
able consideration maybe a badge of fraud ; but if so, it is only
presumptive, not conclusive, evidence of it, and may be met and
rebutted by opposing evidence.^ This is the American rule ;
but, as we have seen, the statutes of Elizabeth with reference to
voluntary settlements do not receive a uniform interpretation
in our State courts. There are doubtless circumstances under
which a father's voluntary settlement, whether upon minor or
adult children, would be set aside as a fraud upon subsequent,
and still more upon existing creditors.^
Where a son purchases and stocks a farm as a home for an
indigent father, who resides and labors thereon, the products
are not subject to attachment as the son's property.^ On the
other hand, where a parent permits the child to receive and in-
vest his earnings, the benefit of the investment belongs to the
child, especially as against creditors of the father.* And in
some States, a minor child who improves and settles a tract of
land with the father's permission may acquire a title by making
valuable improvements as effectually as if he were of age.^
§ 271. Same Subject; English Cases. — The English caseS are
few as to transactions strictly between parent and child ; and
these turn chiefly upon trusts and family settlements. There
are recent cases where the transactions of children with for-
tunes have been set aside in equity, for undue influence exerted
over them by their parents. Thus a mortgage and subsequent
sale by a son just arrived at full age, effected under the father's
1 Hinde's Lessee v. Longworth, 11 the latter's knowledge and consent.
Wheat. 213 ; Seward v. Jackson, 8 Byers v. Thompson, 66 III 421 ; Kurtz
Cow. 406; Haines !'. Haines, 6 Md. 433. r. Hibner, 55 111. 514; Hillebrands v.
2 See supra, §§ 185-188. And see Car- Nibhelink, 44 Mich. 413.
ter V. Grimshaw, 49 N. H. 100 ; Wilson v. 3 Brown v. Scott, 7 Vt. 57.
Kohlheim,46 Miss. 346; Kayee'.Craw- '' Campbell v. Campbell, 3 Stockt.
ford, 22 Wis. 320 ; Monell v. Scherrick, 268 ; Stovall v. Johnson, 17 Ala. 14 ;
54 111. 260 ; Gardner v. Schooley, 25 Wilson v. McMillan, 62 Ga. 16.
N. J. Eq. 150 ; Guffin v. First National ^ Galbraith v. Black, 4 S. & R. 207.
Bank, 74 111. 259. No express contract See Jenison v. Graves, 2 Blackf. 441.
need be proved to enable a son to re- But see Bell v. Hallenback, Wright,
cover from his father's estate for a 751 ; Fonda v. Van Home, 15 Wend,
houi^e built by the son on the father's 631 ; Brown v. M'Donald, 1 Hill Ch.
land in the lifetime of the latter, with 297.
404
CHAP, v.] DUTIES AND RIGHTS OF CHILDREN. § 272
influence, and to liis own injury, has been annulled.^ So with
a gift from child to parent, though not unless a suit to set the
gift aside be instituted in due time.^ The principle of equity
is, that if there be a pecuniary transaction between parent and
child, just after the child attains the age of twenty-one years,
and prior to what may be called a complete emancipation, with-
out any benefit moving to the child, the presumption is, that an
undue influence has been exercised to procure that liability on
the part of the child ; and that it is the business and the duty
of the party who endeavors to maintain such a transaction, to
show that such presumption is adequately rebutted; but that
the presumption may always be removed.^ On the other hand,
in transactions between members of the same family, even though
that relation subsists between them, from whence the court will
infer the moral certainty of the existence of considerable influ-
ence, and the probability of its having been exercised, yet if the
transaction be one that tends to the peace or security of the
family, to the avoiding of family disputes and litigation, or to
the preservation of the family property, the principles by which
such transactions must be tried are not those applicable to deal-
ings between strangers, but such as on the most comprehensive
experience have been found to be most for the interest of families.*
§ 272. Advancements and Distributive Shares ; Expectancies
of Heirs. — If the father, during his lifetime, makes an advance- (
ment to any of his children, towards their distributive share in
his estate, the rule is to reckon this in making the distribution.^
In England it would appear that acts of the father have often
1 Savery r. King, 35 E. L. & Eq. 100. quit served by delivery to one of them
And see Baker v. Bradley, ib. 44y. in such a manner as to entitle tlie land-
2 Wright V. Vanderplank, 39 E. L. lord to maintain ejectment against the
& Eq. 147 ; Turner v. Collins, L. R. 7 father, to whom tlie noticp had been
Ch. 329. addressed. Tanham r. Nicholson, L.
3 Archer v. Hudson, 7 Beav 551, R. 5 H. L. 561. Mortgage by eman-
per Lord Langdale. See Houghton v. cipated children over age, to secure a
Houghton, 11 E. L. & Eq. 134 ; s. c. 15 debt of their father, upheld in favor of
Beav. 278, where this subject is fully the mortgagee, but not in favor of the
discussed. See also American case of father. Bainbridge v. Brown, 50 L. J.
Bergen v. Udall, 31 Barb. 9. Ch. 522.
■* Master of Rolls in Houghton v. ^ Schouler, Executors, §§ 400, 500 ;
Houghton, supra. Edwards v. Freeman, 2 P. Wms. 4-35.
An imbecile father living with liis And so is it with one standing in loco
grown children may have a notice to parentis.
405
§ 272 THE DOMESTIC RELATIONS. [PART HI.
been so construed, under the statute of distributions, with less
reference to intention of the parties than the requirements of
equal justice. Thus annuities are reckoned an advancement ;
contingent provisions ; large premiums for a trade or profes-
sion ; and loans of considerable importance to a son.^ But
small and inconsiderable sums for current expenses, ornaments,
and the education of children are not so reckoned,'-^ Nor is the
payment to the daughter's husband of £1,000, jocularly stated
by the father to be in exchange for his snuff-box, to be consid-
ered an advancement to the daughter.^
The rule in this country does not appear to be very strict ;
and in some States the statutes of distributions, unlike those of
England, permit nothing to be reckoned as an advancement to a
child by the father, unless proved to have been so intended and
chargeable on the child's share by certain evidence prescribed.*
And it is laid down that whether a provision of the deceased in
his lifetime be a gift or an advancement is a question of inten-
tion ; but that if it was originally intended by both as a gift, it
cannot subsequently be treated by the father as an advancement,
at least without the son's knowledge or consent.^ Yet it is also
^ Smith V. Smith, 3 Gif. 263; 2 promissory note to be burned, and died
Wms. Ex'rs, 1385; Edward v. Free- intestate. It was held that although
man, 2 P. Wms. 435; Boyd v. Boyd, the circumstances under which the note
L. R. 4 Eq. 305. liad been destroyed amounted to an
'i 2 Wms. Ex'rs, 6th Am. ed. 1498- equitable release of the debt ; yet that
1505. And see Miller's Appeal, 40 the sum which remained due on it must
Penn. St. 57. be considered an advancement to the
3 McClure v. Evans, 29 Beav. 422. son. Gilbert r. Wethercll, 2 Sim. &
And see Stock v. McAvoy, L. R. 15 Stu. 254, per Sir Jolm Leacli, M R.
Eq. 55. But see Auster v. Powell, 31 Beav. 583,
In a modern English case a father and n. And see Bennett v. Bennett, L.
lent the sum of £10,000 to his son, to R. 10 Ch. D. 474.
assist him in forming a partnership in * Osgood v. Breed's Heirs, 17 Mass.
the business of a sugar-reiiner, and 356. Mere declarations of a fatlier held
took his promissory note for the re- insufficient to raise a presumption of his
payment of that sum on demand. It intention to treat money paid to his
appeared that the son engaged in busi- son for which he had taken the latter's
ness at the urgent desire of liis father ; notes, as advancements. Harley v.
that finding it was a losing concern he Harley, 57 Md. 340.
became desirous of retiring, but re- ^ Lawson's Appeal, 23 Penn. St.
mained at the urgent request of his 85; Sherwood v. Smith, 23 Conn. 516.
father and continued the business with See Black v. Whitall, 1 Stockt. 572;
reluctance, sustaining heavy losses. Storey's Appeal, 83 Penn. St. 89.
The father on his death-bed caused the
406
CHAP, v.] DUTIES AND RIGHTS OP CHILDREN. § 272
ruled that if a son during his father's life receipts for and
actually receives his " full proportion," he can claim nothing
more from the estate after his fathers death.^ Advancements
do not bear interest, unless, at all events, the intention to that
effect be very clear.^
Where the child of a father dying intestate has received an
advancement, in real or personal estate, and wishes to come
into the general partition or distribution of the estate, he may
bring his advancement into hotchpot with the whole estate of
the intestate, real and personal ; and shall thereupon be entitled
to his just proportion of the estate. This is the English rule,
and it prevails likewise in many of the United States.^ In
such case the value of the property at the time of advancement
governs in the distribution.^ The principle of this rule is
equality of distribution of the ancestor's personal estate among
his children and their descendants.
The sale of expectant estates by heirs is not to be encouraged ;
one reason being that it opens the door to taking undue advan- '
tage of an heir in distressed and necessitous circumstances ; the
other that public policy should prevent an heir from shaking
off his father's authority and feeding his extravagance by dis-
posing of the family estate.^ The principle was formerly laid
1 Gushing v. Gushing, 7 Bush, 259. v. Hays, 6 Lea, 303. But where an
2 Osgood V. Breed's Heirs, 17 Mass. adult child accepts a deed which ex-
356; Nelson v. Wyan, 21 Mo. 347; plicitly declares that it is accepted by
Porter's Appeal, 94 Penn. St. 232. A said child " as his full and entire share
transaction between parent and child of his father's estate," and the child
may constitute a loan rather than puts the deed on record, enters into
eitlier gift or advancement. Bruce possession, and enjoys the property
V. Griscom, 16 N. Y. Supr. 280. As to thus conveyed, he cannot deny the
proof of an advancement, see Bulkley deed to be binding upon him to that
V. Noble, 2 Pick. 337 ; and see Hart- effect. Kershaw v. Kershaw, 102 111.
well V. Rice, 1 Gray, 587 ; Miller's Ap- 307. See, further, 2 Schouler, Wills,
peal, 40 Penn. St. 57; Smitli i-. Smith, 3 2 Bl. Com. 516; 2 Wms. Ex'rs,
59 Me. 214; Vanzant y. Davies, 6 Ohio 1386; 2 Kent, Com. 421; Jackson v.
St. 52; 2 Story, Eq. Juris. § 1202; Jackson, 28 Miss. 674; Barnes r. Hazle-
Brown v. Burk, 22 Ga. 574; Cleaver ton, 50 111. 429; Schouler, Executors,
V. Kirk, 3 Met. (Ky.) 270; Hodgson v. §§ 499, 500.
Macy, 8 Ind. 121 ; Vaden v. Hance, * See Jenkins v. Mitchell, 4 Jones
1 Head, 300 ; Fulton v. Smith, 27 Ga. Eq. 207. For the New York rule,
413; Montgomery v. Chaney, 13 La. see Terry v. Dayton, 31 Barb. 519;
Ann. 207. A conveyance of land to Beebe v. Estabrook, 18 N. Y. Supr.
the husband of a daughter is not an 523.
advancement to the daughter. Rains 5 pgr Lord Thurlow, 1 Bro. C. G.
407
§ 272 THE DOMESTIC RELATIONS. [PART III.
down with much emphasis in Massachusetts.^ But the present
rule of chancery is to support such sales to others, if made bona
fide, and for valuable consideration ; and in case of an heir
apparent, if the instrument be made with the knowledge and
consent of the father.^ Whether, however, the son can release
to the father himself, so as to operate further than as a receipt
for property advanced to him, is more doubtful.^
"Where a legacy is given by a parent to his child, or by one in
loco parentis, by way of maintenance, the child as legatee is
privileged in being allowed interest thereon from the testator's
death ; this so as to secure the child's prompt and full support.
And the presumptive right to interest is held to be all the
same, notwithstanding the child has no guardian,^ or the testa-
tor was not obliged to render support ; ^ but not where the will
makes other express provision for maintenance.^
The child's right of inheritance from his parent, it may be
added, is strongly favored both in England and America. But
while in the former country the eldest son is so far preferred to
the other children that he shall take the whole real estate by
descent to himself, the American rule is that all children shall
inherit alike, whether sons or daughters. And a father's will
is to be construed with favor to his own offspring ; indeed, some
of our local statutes expressly provide that when a testator
omits to provide for any children, they shall take the same
share of the testator's estate, both real and personal, that would
have passed to them if the parent had died intestate, unless
they had other provision during the testator's life, or it clearly
appears that the omission was intentional on his part.''
10; Co. Litt. 265 a ; Sugden, Vendors, all rights of inheritance in land to one,
314, and cases cited ; 1 Story, Eq. Juris, if that one would maintain the father
§§ 336-0.39. for life, is not against public policy,
1 But see Trull v. Eastman, 3 Met. but may be upheld in equity. Walker
121 ; contra, Boynton v. Hubbard, 7 v. Walker, ib.
Mass. 112. See Varick v. Edwards, * Kent v. Dunham, 106 Mass. 586;
1 Hoff. Ch. 383; 2 Kent, Com. 475. Fowler y. Colt, 22 N J. Eq. 44.
and cases cited. ^ For the testator might have in-
2 Curtis V. Curtis, 40 Me. 24. tended support from th'e legacy. Brown
^ See Robinson v. Robinson, Brayt. v. Knapp, 79 N. Y. 136.
59; Walker v. Walker, 67 Penn. St. 6 /„ re George, 47 L. J. Ch. 118.
186. The agreement of children with- '' See Mass. Gen. Stats, c. 92, § 25 ;
out their father's knowledge to release 2 Kent, Com. 421 ; 4 Kent, Com. 471 ; 1
408
CHAP, v.] DUTIES AND EIGHTS OF CHILDREN.
§273
§ 273. stepchildren ; Quasi Parental Relation. — Tt is well
settled that in the absence of statutes a person is not entitled
to the custody and earnings of stepchildren, nor bound by law
to maintain them.^ Yet, if a stepfather voluntarily assumes
the care and support of a stepchild, he stands in loco parentis ;
and the presumption then is, that they deal with each other as
parent and child, and not as master and servant ; in which case
the ordinary rules of parent and child will be held to apply ;
and consequently neither compensation for board is presumed
on the one hand, nor for services on the other.^ So may this
quasi relation exist between the child and some other person, —
such as a grandfather, — and with similar legal consequences.'^
As to third parties, the test is whether one has held out the
child as a member of his own family.*
Jarm. Wills, 5th Am. ed. 129, n ; Schou-
ler, Executors, §§ 499, 500.
1 Tubb V. Harri.son, 4 T. R. 118 ; 2
Kent, Cora. 192 ; Freto v. Brown, 4
jVIass. 675; Worcester v. Marchant, 14
Pick. 510 ; supra, § 237; 57 111. 489;
McMahill v. McMahill, 113 HI. 461;
Besondy Re, 32 Minn. 385.
■^ Cooper V. Martin, 4 East, 77 ; Wil-
liams V. Hutchinson, 3 Coinst. 312;
Sharp V. Cropsey, 11 Barb. 224; Mur-
dock o. Murdock, 7 Cal. 511 ; Gillett v.
Camp, 27 Mo. 541 ; Ilussee v. Round-
tree, Busbee, 110; Lantz v. Frey, 14
Penn. St. 201 ; Davis v. Goodcnow, 27
Vt. 715 ; Brush v. Blanchard, 18 111. 46 ;
St. Ferdinand Academy r. Bobb, 52
Mo. 357 ; Smith v. Rogers, 24 Kan.
140 ; Mowbry v. Mowbry, 64 111. 383.
As to a stepson remaining after attain-
ing majority, see Wells v. Perkins, 43
Wis. 160. As to claims upon the es-
tate of a deceased stepson, see Gayle
V. Hayes, 79 Va. 542.
^ Hudson V. Lutz, 5 Jones, 217
Butler V. Slam, 50 Penn. St. 456
Schrinipf v. Settegast, 36 Tex. 296
Hays V. McConnell,^42 Ind. 285 ; Wind-
land IV Deeds, 44 Iowa, 98. But the
presumption, as between son-in-law
and father-in-law, is that they deal on
the mutual footing of debtor and cred-
itor. Wright V. Donnell, 34 Tex. 291 ;
Schoch V. Garrett, 69 Penn. St. 144 ;
Rogers v. Millard, 44 Iowa, 466. But
cf. supra, Hus. & Wife, § 71. All this
is matter of evidence upon the facts.
Coe V. Wager, 42 Mich. 49 ; 39 N. J.
Eq. 227; Norton ?'. Ailor, 11 Lea, 563;
Ela V. Brand, 63 N. H. 14.
* St. Ferdinand Academy v. Bobb,
62 Mo. 357 ; 60 X. H. 20.
For an adopted child, the doctrine
in loco parentis applies as to services
and wages. Brown v. Welsh, 27 N. J.
Eq. 429. See supra, § 232. In the case
of distant relatives and strangers, any
presumption that one goes to live in
the household on the footing of mem-
ber of the family instead of servant
is less strong than where one is a
child ; and such presumption is more
readily overcome by circumstantial
evidence. Thornton i\ Grange, 66
Barb. 507; Tyler v. Burrington, 39
Wis. 376; Neal v. Gilmore, 79 Penn.
St. 421. And as to inferring a claim
for a young child's support against
the child's own parent, see Carroll
V. McCoy, 40 Iowa, 38 ; Thorp v. Bate-
man, .37 .Mich. 68. As to strangers,
indeed, when the child is old enough to
perform valuable service beyond the
worth of support, the presumption is
rather that of a contract relation for
compensation. In general, the estate
409
§ 275 THE DOMESTIC RELATIONS. [PAIIT III.
§ 274. Claims against the Parental Estate for Services Ren-
dered. — Claims for services rendered to a parent, a relative, or
some one standing in place of a parent, are not unfrequently
presented against the estate of a parent after decease. Thus,
where an adult child resides with and performs valuable ser-
vice for the parent, an understanding may be shown between
them of recompense either in money or by way of testamentary
provision under the parent's will. In meritorious instances,
and particularly where the parent was long sick and infirm,
and the child performed indispensable functions, or where by
personal labor and skill the child enhanced the value of the
parental estate, a mutual intention to this effect may be
readily inferred from the circumstances ; and where, from some
consistent cause, no such testamentary provision has been
made, compensation will be allowed out of the deceased par-
ent's estate upon the usual footing of a creditor's claim.^ Pre-
sumptions, however, as we have seen, are unfavorable, and must
be overcome ; and so, too, presumptions are against the reim-
bursement of parental care and trouble bestowed upon offspring.^
Where the relationship was more distant, or the parties con-
cerned were not kindred at all or united by marital ties, the
inference of a promise to recompense the service rendered is of
course more readily raised, whether the claim be presented
against the person served, or against his estate, upon his
decease.^
§ 275. Suits between Child and Parents. — It is intimated in
a recent case that, while one occupying the qiiasi parental rela-
of one who has contracted for services service in expectation of a legacy, mere
to be rendered to the family is liable expectation cannot create an enforce-
for the same performed after his death, able contract; but a mutual under-
Toland v. Stevenson, 59 Ind. 485; standing, if shown, may afford the basis
Frost V. Tarr, 5.3 Ind. .390; Hauser v. of a valid claim against an estate. See
Sain, 74 N. C. 552 ; Shakespeare i'. Shakespeare v. Markham, 17 N. Y.
Markham, 17 N. Y. Supr. 311 ; Schou- Supr. 311, .322, and cases cited,
ler, Executors, § 432. ^ Seitz's Appeal, 87 Penn. St. 1-59.
1 Freeman v. Freeman, 65 111. 106; See supra, § 238; Reando v. Misplay,
Markey o. Brewster, 17 N. Y. Supr. 16. 90 Mo. 251, where necessary services
Specific performance has been decreed were rendered to an insane mother,
of a promised conveyance in considera- ^ Briggs v. Briggs, 46 Vt. 571 ; Mor-
tion, even though the will were insuf- ton v. Rainey, 82 111. 215 ; Broderick
ficicnt. Hiatt v. Williams, 72 Mo. 214. v. Broderick, 28 W. Va. 378.
As to persons in general performing
410
CHAP, v.] DUTIES AND RIGHTS OF CHILDREN. § 275
tion towards a minor stranger by blood may claim that the
child's services are offset by the maintenance, care, and educa-
tion he has bestowed upon him, the failure to provide properly
while the child rendered services raises a liability for those ser-
vices which the child, on attaining majority, may enforce.^ The
question, moreover, is sometimes raised in these days, whether
a young son or daughter occupying the filial relation may not,
on becoming of age, sue the parent or quasi parent for alleged
maltreatment or other injury.^ With reference to a blood par-
ent, however, all such litigation seems abhorrent to the idea of
family discipline which all nations, rude or civilized, have so
steadily inculcated, and the privacy and mutual confidence
which should obtain in the household. An unkind and cruel
parent may and should be punished at the time of the offence,
if an offender at all, by forfeiting custody and suffering criminal
penalties, if need be ; but for the minor child who continues,
it may be for long years, at home and unemancipated, to
bring a suit, when arrived at majority, free from parental
control and under counter-influences, against his own parent,
either for services accruing during infancy or to recover dama-
ges for some stale injury, real or imagined, referable to that
period, appears quite contrary to good policy. The courts
should discourage such litigation ; and so upon corresponding
grounds the parent's suit as to any cause of action referable to
the period and relation of tender childhood.^
1 Schrimpfj) Settegast, 36 Tex. 296. garding the world or one another; but
2 The writer is informed of a nisi infancy is usually taken to be a rela-
prius Maine case tried about the close tion analogous at common law to that
of 1880 (French v. Allen), where a of coverture. Now, as to coverture, it
daughter, aged twenty-three, joined is clear that from regard to the peace
with her husband in an action for an of society the common law forbade
alleged assault committed upon her husband and wife to sue one another
by her parent when she was eleven in damages for breach of the marital
years old. The trial resulted in a ver- rights ; though conceding that the
diet for the defendant, and the plain- breach of obligation on one side might
tiffs did not proceed farther; conse- release from obligation on the other;
quently the case is not reported. that there might be indirect redress,
^ Clear precedents are wanting on separation, &c. See Schouler, Hus. &
these points ; but the policy of the Wife, § 72. Even after a divorce it is
common law appears to be hostile to recently held that the sanctity of the
permitting such suits. Parent and child marriage union shall not be disturbed
do not stand strictly as sui juris re- by such litigation between the divorced
411
§ 276 THE DOMESTIC RELATIONS. [PART III.
Equity, however, regards the rights of parent and child, as
well as of husband and wife, and separates their property inter-
ests.^ An oppressive contract relative to property extorted by
a parent from the child, or by an adult child from the parent,
may doubtless be relieved against.^
CHAPTER VI.
ILLEGITIMATE CHILDREN.
§ 276. Illegitimate Children ; Their Peculiar Footing. — Ille-
gitimate children, or bastards, stand upon a different footing
from legitimate children. We have already seen that bastards
may be legitimated in many of the United States, by the subse-
quent marriage of their parents or otherwise. The rights and
disabilities of bastards, as such, and while continuing illegiti-
mate, require our present attention.
The rights of a bastard are very few at the common law ;
children born out of a legal marriage having been from the
earliest times stigmatized with shame, and made to suffer
through life the reproach which was rightfully visited upon
those who brought them into being. The dramatist depicts the
bastard as a social Ishmaelite, ever bent upon schemes for the
ruin of others, fully determined to prove a villain ; thus fitly
indicating the public estimate of such characters centuries ago
spouses. Jh. § 561 ; Abbott v. Abbott, 67 And suits on an injured infant's behalf
Me. 304. Of course one spouse might be ouglit, if allowable at all, to be allowed
held criminally responsible at the time at or about the time of the parental
for a personal wrong against the other, breach, only to the infant suing by next
Equity, with reference to property and friend. And the more essential point
adverse interests therein, regards mar- is to get rid of the cruel custodian ; as
ried parties as subject, moreover, to a child, under fit circumstances, may.
litigation ; but that is something quite See, as to actions by or against infants,
different so far as public policy and post. Part V. c. 6.
tlie interests of society are concerned. i Pout, Part V. c. 6.
It seems to us that these analogies liavo ^ Bowe c. Bowe, 42 Mich. 195.
a close application to the filial relation.
412
CHAP. VI.] ILLEGITIMATE CHILDREN, § 277
in England. The law-writers, too, pronounce the bastard to be
one whose only rights are such as he can acquire ; going so far
as to demonstrate, by cruelly irresistible logic, that an illegiti-
mate child cannot possibly inherit, because he is the son of
nobody ; sometimes called filim nidlius, and sometimes filius
populi} Coke seemed to concede a favor in admitting that the
bastard might gain a surname by reputation though none by
inheritance.^
§ 277. Disability of Inheritance. — The most important dis-
ability of an illegitimate child at the common law is that he
has no inheritable blood ; that he is incapable of becoming heir,
either to his putative father or to his mother, or to any one
else ; that he can have no heirs but those of his own body.^
This was likewise the doctrine of the civil law ; the language
of the Institutes as to spurious offspring, patrcm habere non in-
tcUi'juntur, dealing rather more gently with a fact so extremely
delicate and painful.'^ At the old canon law a bastard was
treated as also disqualified from holding dignities in the church ;
but this doctrine became exploded long ago. " And really,"
adds Blackstone, with warmth, as if to atone for a long and
fallacious argument against legitimation by a subsequent mar-
riage, " any other distinction but that of not inheriting, which
civil policy renders necessary, would, with regard to the inno-
cent offspring of his parents' crimes, be odious, unjust, and cruel
to the last degree."^ And so might the commentator of the
commentaries stigmatize the efforts of those who have nothing
better to urge against human rights than the importance of
preserving the symmetry of the law unimpaired.
The civil law, while offering in certain cases a hope of legiti-
mation, made a distinction between spurious offspring born of an
unfettered promiscuous intercourse, and such as were conceived
or born during the marriage of one of the natural parents, or
were otherwise the product of a complex, nefarious, or inces-
tuous commerce ; presuming that while the former might be
1 Fort, de LI. ch. 40; 1 Bl. Com. contempt. See Fraser, Parent & Child,
458. 119.
2 Co. Litt. 3. The very term " bas- 3 2 Kent, Com. 212 ; 1 Bl. Com. 4.59.
tard," said to be derived from the * Inst. 1, 10, 12; 2 Kent, Com. 212.
Saxon words " base start," expresses ^ 1 Bl. Com. 4-59
413
§ 277 THE DOMESTIC RELATIONS. [PAP.T III.
rendered legitimate, the latter never could become so.^ And
the rule was more severe with the one class than the other.
Natural children of the former kind were to be legitimated per
rescriptum princijois, on the requisition of the father in certain
special circumstances, as matter of legal right ; but the sover-
eign rescript was extended to children of the other sort only
occasionally as an exercise of sovereign grace and subject to
the sovereign conditions.^ This principle is to be traced in the
provisions of the Louisiana Code ; children whose father is un-
known, and adulterous or incestuous children having no right of
inheritance, while other natural or illegitimate children succeed
to the estate of their mother in default of lawful children or
descendants, and under certain conditions to the estate of the
father who has acknowledged them.^
The well-settled American rule, however, differs considerably
from that of both civil and common law. We have already
noticed that legitimation by subsequent marriage is a principle
admitted very generally in the legislation of the different States*
So, too, are there various statutes which permit even bastard
children to inherit from the father under certain restrictions ;
while the generally recognized doctrine is partus sequihir ven-
trcm, and that the illegitimate child and his mother shall mutu-
ally inherit from each other. Thus, by recent statutes in Maine,
the mother of an illegitimate child can inherit. In Massachu-
setts, the illegitimate is an heir to his mother. In New York,
in default of lawful issue of the mother, her illegitimate children
may inherit her real and personal estate. In Pennsylvania,
1 1 Dipr. 5, 23; Fraser. Parent & power, and subject to its conditions.
Cliild, 119 ; supra, §§ 220, 22?). And sec § 229.
2 See Gera v. Ciantar, 12 App. '^ See 2 Kent, Com. 213.
5.57. Justinian's Nov. 89 is specific on * See §§ 226, 227. A child born out
this matter of legitimation per rescrip- of wedlock, but afterwards legitimated
turn principis with tliis discrimination by subsequent marriage, is an heir and
against offspring of nefarious com- distributee like the other children,
nierce. By the later civil law, after and has all the rights of a legitimate
the dissolution of the Eoman Empire, child, so far as the local legislation in
children of parents free to marry at favor of such legitimacy can give it
the time of their conception and birth this universal effect. Miller v. Miller,
could long be legitimated as matter of 91 N. Y. 315; Williams v. Williams, 11
right ; but children of the other class Lea, 052.
only at the discretion of the ruling
414
CHAP. VI.]
ILLEGITIMATE CHILDEElSr.
§277
bastards shall bear the name of the mother, and she and they
shall inherit from each other. Certain kindred of the bastard's
mother, in Georgia and Alabama, had rights of distribution
under still earlier statutes. In Tennessee and some other States,
a liberal rule is applied with respect to mother and brothers
and sisters.^ In Maryland, illegitimates may inherit from the
mother and from illegitimate brothers and sisters ; though ille-
gitimates cannot take from the legitimate, neither legitimates
from the illegitimate.^ In Illinois, illegitimate and legitimate
children are placed on the same footing as to the mother and
maternal ancestors.^ And, more than fifty years ago, Kent in-
stanced twelve States where bastards could inherit from, and
transmit to, their mothers, real and personal estate, under some
modifications ; while in New York, the mother and her kindred
could inherit from her bastard offspring.* There is scarcely
a State in the Union which has not departed widely from the
policy of the English common law; and statutes, which happily
1 Lewis V. Eutsler, 4 Ohio. St. 354 ;
Opilykc's Appeal, 49 Penn. St. 373 ;
Hawkins v. Jones, 19 Oliio St. 22 ;
Kiley v. Byrd, 3 Head, 20.
2 Miller v. Stewart, 8 Gill, 128;
Earle v. Dawes, 3 Md. Ch. 2-30.
3 Bates V. Elder, 118 111. 436. But
cf. Jackson v. Jackson, 78 Ky. 390. As
to conflict of laws, in inheriting land
from father, etc., see § 231; 112 111.
234.
* See 2 Kent, Com. 11th ed. 212,
213, and notes. And as to inheritance
from the father, see stipra, § 229. Tliese
statutes of inheritance are not gen-
erally to be extended by construction
so as to apply to grandchildren and
grandparents, in a case of illegitimacy.
See Steckel's Appeal, 04 Penn. St. 493;
Berry v. Owens, 5 Bush, 4.52. For con-
struction of the word "illegitimate," see
Miller v. Miller, 25 N. Y. Supr. 507. An
illegitimate child can administer on his
father's estate as against the father's
brother. Re Pico, 52 Cal. 84. See Ma-
gce's Estate, 63 Cal. 414. As to an ille-
gitimate child unintentionally omitted
from its mother's will, see 57 Cal. 484.
And see Iowa code making illegitimate
children capable of inheriting. 24 Fed.
R. 15. In general, an illegitimate child,
where there was no subsequent mar-
riage of the parents, nor adoption, can-
not inherit from the putative father.
As to such acts of inheritance, a child
is rendered legitimate only sub modo.
Neil's Appeal, 92 Penn. St. 193. An
adopted illegitimate child died, hav-
ing inherited land from its adopted
mother ; and its natural mother was
allowed to inherit on the child's death
without issue. Krug v. Davis, 87 Ind.
590. Adoption codes in some States
would receive a different construction.
See § 2.S2.
A child begotten of a mother who
had married in good faith, not knowing
thnt a legal impediment to the marriage
existed, is treated with favor. Har-
rington V. Barfield, 30 La. Ann. 297.
By local statutes the legitimacy of
such offspring is preserved in annulling
such marriages ; as we have seen, i^'tpra,
Part II. c. 1. And see Watts v. Owens,
62 Wis. 512.
415
§ 278 THE DOMESTIC RELATIONS. [PART III.
have required as yet very little judicial interpretation, perpetu-
ate the record of our liberal and generous public policy towards
a class of beings who were once compelled to bear the iniquities
of the parent.
§ 278. Mother preferred to the Putative Father; Custody. —
The doctrine that a natural tie connects the illegitimate child
peculiarly with his mother was recognized at the civil law ; for,
under the ordinance of Justinian, the bastard might to a certain
extent inherit from his mother.^ So at the common law have
the obligations of consanguinity between the mother and her
illegitimate offspring been applied in several instances. But as
concerns any exclusive privileges on behalf of the mother, this
does not seem very clear ; for in a case Avhich was decided in
1786, the rights of the putative father seemed to be placed on
much the same footing as in other cases ; and his consent was
deemed prima facie essential under the marriage act of 26
Geo. I. ; so was his right apparently admitted to take his ille-
gitimate child out of the parish.^
There are, to be sure, occasional dida to the effect that the
putative father has no common-law right to the custody of the
child as against the mother, and that certainly within the age
of nurture, that is, under the age of seven, the mother has the
exclusive right to the custody. The more correct statement,
however, is that pauper children, whether legitimate or not, are
under the English system made inseparable from the mother
within the years of nurture ; and that at common law neither
the putative father nor the mother of an illegitimate child had
any exclusive right of guardianship.^ The common-law cases
cited in the mother's favor are only to the effect that where a
bastard child within the period of nurture is in the peaceable
possession of the mother, and the putative father gets possession
of the child by force or fraud, the court will interfere to put
matters in the same situation as before.* Both Lord Kenyon
and Lord Ellenborough — the latter as late as 1806 — expressed
1 Code, lib. 6, 57. See 2 Kent, Com. s Macphers. Inf. 67.
214. * Rex I'. Soper, 5 T. R. 278 ; Rex v.
2 King V. Hodnett, 1 T. R. 96, and Hopkins, 7 East, 579; Rex v. Moseley,
cases cited passim ; Macphers. Inf. 67. 6 East, 223.
416
CHAP. VI.] ILLEGITIMATE CHILDREN. § 278
doubts as to whether the court would take away the custody of
an illegitimate child from the father who had fairly obtained
possession, and award it to the mother.^
Nor do the later English cases aid greatly in clearing up the
doubt on this point. Lord Mansfield regarded the law as
doubtful in his day, while himself inclining strongly to the
opinion that the putative father had no right to his child's cus-
tody.2 In 1841 a case came before the Court of Common
Pleas, on a writ of habeas corpus, applied for by the mother,
the child being then between eleven and twelve years of age,
and in the custody of her putative father. But the child was
deemed old enough to exercise her own discretion as to where
she would go ; and as she appeared unwilling to go with her
mother, the court would not permit the mother to take her by
force.^
The chancery courts have in several instances favored the
father of an illegitimate child to the exclusion of his mother.
Thus, while the practice is not to appoint the putative father
guardian of his illegitimate child having no property, unless he
makes a settlement upon him ; yet, if he does so, his appoint-
ment is favorably regarded. No special regard seems to have
been paid to the mother of such children.* And while the
committee of a lunatic might petition for an allowance for his
bastard offspring, their mother might not.^
But the language of the new poor laws of England (after
many changes) is favorable to the mother's special claims ;
being to the effect that the mother is in any case bound to
maintain her bastard child under sixteen, unless such child
meantime marries or acquires a settlement of its own ; and
that such child shall follow the settlement of the mother.^
And if, being of ability, she neglects to support such child,
whereby it becomes chargeable to the parish, she may be
1 Per Lord Kenyon, Rex v. Moseley, Comparing all the dicta in the f orego-
supra (1798) ; per Lord Ellenborough, ing cases carefully together, it will be
Rex V. Hopkins, supra. seen that they are not decidedly against
2 Strangeways v. Robinson, 4 Taunt, the putative father's right of custody.
498. And see Pope v. Sale, 7 Bing. * Macphers. Inf. 110.
477. 5 Be Jones, 5 Russ. 154.
3 In re Lloyd, 3 Man. & Gr. 547. 64^5 ^ju jy. c. 76, § 71
27 417
§ 278 a THE DOMESTIC RELATIONS. [PART III.
punished under the vagrant acts.^ Another section of the act
of 4 & 5 Will. IV., which provides that the husband shall
support stepchildren of his wife, includes in its terms illegiti-
mate as well as legitimate children, and so far favors a hus-
band's right of custody ; but that provision covers only a very
limited ground.^ As against strangers, at all events, or those
even with whom the mother has temporarily placed her spuri-
ous child, the maternal right to determine the child's permanent
custody has been strongly upheld in the latest instance ; for a
mother, though a kept mistress, was lately permitted to transfer
the custody of her young illegitimate daughter to respectable
persons of her own choice, from those to whom she had first
committed the child and who resisted her risht.^
§ 278 a. The Same Subject. — The rights of the parents of
bastards are regulated to a great extent in the United States by
statute ; and our policy is in general more favorable than that
of England, as to the mother's rights. An illegitimate child
follows the settlement of his mother in New York and some
other States.* But in Connecticut the rule is that a bastard is
settled where born, like any other child, and that his settlement
follows that of the putative father.^ In New York, again, ever
zealous in guarding the interests of women and children, it is
broadly ruled that, as against the mother of a bastard child, the
putative father has no legal right of custody ; that the mother,
as its natural guardian, is bound to maintain it ; and that she
is entitled to control it.^ Stratagem and force on the part of
the putative father always furnish good grounds for restora-
tion of the child to the mother.' And the Eoman, Spanish,
and French laws all deny the power of the putative father
1 7 & 8 Vict. c. 101 ; 8 & 9 Vict. « See 2 Kent, Com. 214 ; Canajoha-
c. 10. rie v. Johnson, 17 Jolins. 41 ; Petersham
2 4 & 5 Will. IV. c. 76, § 51. See v. Dana, 12 Mass. 429; Lower Augusta
comment of Maule, J., In re Lloyd, 3 v. Salinsgrove, 64 Penn. St. 166.
Man. & Gr. 547. ' 5 Bethlem v. Roxbury, 20 Conn. 298.
3 Queen v. Nash, 10 Q. B. D. 454. And see Smith v. State, 1 Houst. C. C.
The court laid some stress upon the 107.
fact that this new arrangement ap- ^ People v. Kling, 6 Barb. 360 ;
peared to be for the child's interest, Robalina v. Armstrong, 15 Barb. 247.
and held, too, that the child, being only "^ Commonwealth v. Fee, 6 S. & K.
seven j'ears old, was too young for its 255.
preferences to be regarded.
418
CHAP. VI.] ILLEGITIMATE CHILDREN. § 279
over the illegitimate child ; this principle being likewise trans-
ferred to Louisiana and other States, once under the civil law ;
though, in Texas at least, the putative father is allowed the
guardianship of such child after the mother's death. ^ In some
States, we may add, the superior rights of the mother in binding
out her illegitimate child are favorably regarded. -
§ 279. Maintenance of Illegitimate Children. — The common-
law rule, in absence of statutes, is that the putative father is
under no legal liability to support his illegitimate offspring.
But upon the strength of the natural or moral obligation arising
out of the relation of the putative father to his child, an action
at common law lies for its maintenance and support upon an
express promise ; and where one admits himself to be the
father and adopts (so to speak), while such adoption continues,
a promise may be implied in favor of the party providing for it.
He may renounce such adoption, and terminate this implied
assumpsit, in which case there is no remedy to be pursued
unless under a statute. The father can only be charged then
upon his contract.^ But upon his promise to third persons,
he may be held liable ; and a promise by the putative father
to pay the stepfather for the child's support, past and future,
if he will continue to support it, is binding.* Indeed, where
the putative father has expressly agreed to pay the child's
relatives for its support during minority, and to make provision
by will for that purpose, the child has been allowed to bring
1 Acosta V. Robin, 19 Martin, .387 ; lum, see Copeland t*. State, 60 Ind.
Barela v. Roberts, 34 Tex. 5-34. 394.
2 Alfred v. McKay, .3(3 Ga. 440 ; 3 Hesketh v. Gowing, 5 Esp, 131 ;
McGunigal v. Mong, 5 Penn. St. 2fJ9 ; Nichols v. Allen, 3 Car. & P. 36 ; Furril-
Pratt V. Nitz, 48 Iowa, 33; lOtJ Penn. lie v. Crowther, 7 Dowl. & Ry. 612;
St. 574. But a putative father who Cameron v. Baker, 1 Car. & P. 258;
has paid a judgnicnt against himself Moncrief v. Ely, 19 Wend. 405. Claims
for breach of a bond to the town for for maintenance upon the estate of a
the child's support, and has received deceased putative father are not fa-
the child with authority from the se- vored, where no express and binding
lectmen, has a right to the child's con- contract to support can be established,
trol and custody. Adams v. Adams, nor are verbal declarations readily
50 Vt. 158. As to the guardian's riglit available to show' such a contract,
of custody to an illegitimate orplian Duncan v. Pope, 47 Ga. 445; Nine v.
child, see Johns v. Emmert, 62 Ind. 533. Starr, 8 Oreg. 49 ; Dalton v. Halpin,
And where the child has been aban- 27 La. Ann. 382.
doned and apprenticed out bv an asy- * Wiggins v. Keizer, 6 Ind. 252.
419
§ 279 THE DOMESTIC RELATIONS. [PAET III.
action against the father's estate to recover for such support
where the father died without making the provision promised.*
The statutes, however, which relate to the maintenance of
bastard children, supply the want of adequate common-law
remedies ; the main element in such legislation being public
indemnity against the support of such persons. Under the
old poor-laws of England, the mother had a compulsory remedy
against the putative father ; but this was taken away by the act
of 4 & 5 Will. IV. c. 76. By the statute of 7 & 8 Vict. c. 101,
however, the mother is afforded relief once more, and the father
may be summoned before the petty sessions and ordered to pay
a weekly sum for the child's maintenance, and the costs of
obtaining the order ; maintenance to last until the child is
thirteen years of age. The money is to be paid to the mother,
and may be recovered by distress and imprisonment.^ The
provisions of law in force in most of the United States are
borrowed from the older English statutes, and our courts are
very generally invested with plenary jurisdiction over such
matters ; and at the instance of the mother the father may be
coerced by arrest and imprisonment, if need be, into giving
bonds and furnishing maintenance for his illegitimate child ;
thus relieving the mother to some extent of the burden to
which his criminal misconduct has chiefly contributed, and in-
demnifying the public against the support of the penniless and
unfortunate.^
Past seduction has been held sufficient to support a deed.
1 Todd V. Weber, 95 N. Y. 181. Allen, 389. See Bishop and other
2 And see 2 & 3 Vict. c. 85 ; 8 & 9 writers on statutory crimes. In some
Vict. c. 101. The order may be ob- States certain persons are authorized to
tained by a married woman, mother of make complaint against the father for
the bastard. Regina v. CoUingwood, 12 maintenance of the bastard, where the
Q. B. 681. And see Foltit v. Koetzow, mother refuses or neglects to do so. Ih.
24 Jur. 651. In case of death or inca- The main purpose of these bastard
pacity of the mother, so that the child acts is to indemnify the public against
becomes chargeable to the parish, the support of the child, and they appear
order may be enforced by the guar- to be in the nature of civil proceed-
dians or overseers of the parish. ings. A man who marries a woman
3 2 Kent, Com. 215, and cases cited ; known by liim to be pregnant becomes
State V. Beatty, 66 N. C. 648 ; Musser liable for the support of the child, and
r. Stewart, 21 Ohio St. 353; Marlett y. an action of bastardy will not lie against
Wilson, 30 Ind. 240; Barber v. State, the natural father. State y. Shoemaker,
24 Md. 383; Wheelwright v. Greer, 10 62 Iowa, 343. See § 23.
420
CHAP. VI.] ILLEGITIMATE CHILDREN. § 280
There is an old English case, where equity compelled the
specific performance of a deed-poll, made by a man who had
seduced a woman and had a child by her ; the writing prom-
ising to pay £2,000 after his death for the purchase of an
annuity for the mother and her child for their lives, l^oth
the man and the child had died before the suit was brought.^
In Pennsylvania, the same principle is pushed even farther;
for it is ruled that seduction of a female and begetting a bas-
tard is sufficient consideration to support a man's promise to
give bonds for a sum of money .^ But there must be nothing
oppressive or unfair in such transactions, and if the promise be
solely in consideration of stopping a criminal prosecution, it is
void.^ Nor ought agreements as to the wages of sin to be
favored.*
Whatever may be the mother's legal responsibility for the
maintenance of her bastard child while she lives, it appears
that an action cannot be maintained against the administrator
of her estate for the child's maintenance subsequently to her
death.^
§ 280. Persons in Loco Parentis ; Distant Relatives, &c. —
A person standing in loco parentis may sue 2^cr quod servitiuni
for the abduction of his daughter's illegitimate child.^ But a
parent is not bound to support the illegitimate offspring of his
children '^ Relatives more distant than parents do not, on the
whole, seem to have much consideration in matters relating to
a bastard ; and it is even likely that the assumption of a family
name by an illegitimate member is a grievance for which the
offended relatives have no redress.^
i Marcliioness of Annandale v. Har- her, notwithstanding a bastardy act.
ris, 2 P. Wms. 4o3. And see Turner v. Sutfin v. People, 4.S Mich. 37.
Vaughan, 2 Wils. 339. 3 Ih. But see Merritt v. Fleming, 42
2 Shenk v. Mingle, 13 S. & R. 29. Ala. 284.
And see Phillippi v. Commonwealth, * See Binnington v. Wallis, 4 B. &
18 Penn. St. 116; Knye v. Moore, 1 Aid. 650.
Sim. & Stu. 161. The undertaking of 5 Ruttinger v. Temple, 4 B. & S.
a putative father to pay the mother 401. And see snprn, § 278; Druet v.
money for the support of the child is Druet, 26 La. Ann. 323.
not illegal. Hook v. Pratt, 78 N. Y. « Moritz v. Garnhart, 7 Watts, 302.
371. A negotiable bill might thus be ' Hillsborough v. Deering, 4 N. H.
given. lb. 86.
A mother may sue for injuries done ^ Du Boulay v. Du Boulay, L. R. 2
421
§ 281 THE DOMESTIC RELATIONS. [PART III.
§ 281. Bequests to Illegitimate Children. — Bequests to ille-
gitimate children, since they are not considered as relatives, are
not favored in English law. There have heen, it is true, certain
dicta to the contrary ; but Lord Eldon was of the opinion that
there must be something to show that the testator put himself
in loco parentis ; and it has since been decided that an illegiti-
mate child is not merely, as such, within the rule, for he is
'• a stranger to the testator." ^ On the ground of uncertainty
in the person, a bequest to an unborn legitimate child was long
considered objectionable ; but Lord Eldon and others main-
tained that legacies given to the unborn illegitimate child of a
particular woman then pregnant would be good, because the
uncertainty of description could here be obviated .^ But it is
now well settled in England that a devise or bequest in favor
of other future illegitimate children generally is void.^
Illegitimate children may undoubtedly take by purchase as
persons designated, if sufficiently described.* The question in
cases of this sort is really one of intention. Prima facie, the
term " children " in a will, however, is intended to mean legiti-
mate children ; and if there are legitimate children, or if it be
possible that there should be legitimate children of the person
named, the English rule is that no illegitimate child can take
under the description of children.^ Yet, if they have acquired
the reputation of being the children of a particular person, or
if the will shows a clear intention to provide for such persons,
they are capable of taking under the description of " children,"
or " daughters." ^ In Meclworth v. Pope, the rule was concisely
P. C. 430. See Vane v. Vane, L. R. 509; Co. Litt. 36 ; Peachey, Mar. Settl.
8 Ch. 383. 885, n. ; Clifton v. Goodbun, L. R. 6 Eq.
1 Lowndes v. Lowndes, 15 Ves. 304 ; 278 ; Crook v. Hill, L. R. 6 Ch. 311.
Perry y. Whitehead, 6 Ves. 547; ronira, ^ Gill v. Shelley, 2 Russ. & My.
per Lord Alvanley, Cricket v. Dolby, 336; In re Wells's Estate, L. R. 6 Eq.
3 Ves. 30 ; Macphers. Inf. 238. 599 ; Paul v. Children, L. R. 12 Eq. 16 ;
2 Macphers. Inf. 570, and cases Dorin v. Dorin, L. R. 7 H. L. 568. See
cited ; Gordon v. Gordon, 1 Mer. 141 ; as to " nephews," 35 Cli. D. 551,
Dawson v. Dawson, 6 Madd. 292. « Peachey, Mar. Settl. 885, n , and
3 Beachcroft v. Beachcroft, 1 Madd. cases cited ; Evans v. Davies, 7 Hare,
430; Knye v. Moore, 1 Sim. & Stu. 61 ; 501 ; Owen v. Bryant, 2 De G., M. &
Wilkinson v. Wilkinson, 1 You. & Coll. G. 697; Hartley v. Tribber, 16 Boav.
057 ; Medworth v. Pope, 27 Beav. 71. 510; Leigh v. Byron, 1 Sm. & Gif. 486;
* Blodwell V. Edwards, Cro. Eliz. Tugwell v. Scott, 24 Beav. 141 ; Worts
422
CHAP. VI.] ILLEGITIMATE CHILDREN. § 281
stated to be, that an illegitimate child in esse or en ventre sa mere
may, if properly described, take the benefit of a devise or bequest,
and the court will not inquire as to his parentage or origin ; but
that in respect of future illegitimate children, the law will not
let them take uuder any description wliatever. " The reason
why the English law so holds is that it considers such a provi-
sion for future illegitimate children as contra bonos mores." ^ But
the English chancery still wavers in applying this rule, in the
absence of a final exposition on last appeal ; for it is lately laid
down and affirmed that a gift by will to any illegitimate chil-
dren of a testator in effect who may be in esse before the tes-
tator's own death is a valid gift.^
In this country, the tendency seems to be so far favorable to
illegitimate children as to regard wills made in their fa,vor with
the same, or nearly the same, consideration as all others. And
our courts regard l)astards as having strong claims to equitable
protection, notwithstanding the criminal indulgence of their par-
ents. In several important cases, specific performance of volun-
tary settlements made by the father in their favor have been
decreed.^ And a devise, in specific terms, to an unborn natural
V. Cubitt, 19 Beav. 421. And see Wil- see Clarke v. Wright, 6 Hurl. & Nor.
liainsoii v. Codrington, 1 Ves. Sen. 511. 849. As to legacies and devises, see
Where legitimate children alone an- Beachcroft i". Beachcroft, 1 Madd. 430,
swer to the description intended, or are and cases cited ; Durrant v. Friend, 11
sufficiently designated, they will take E. L. & Eq. 2 ; Owen v. Bryant, 13
under the will. Hill i-. Crook, L. R. 6 E. L. & Eq. 217 ; 4 Kent, Com. 414;
H. L. 265. And the ultimate right of Bagley v. MoUard, 1 Russ. & My. 581.
the crown in case of illegitimacy can- 2 Occleston v. Fullalove, L. R. 9
not be evaded by the terms of a trust. Ch. 147, Lord Selborne dis. ; Hastie's
/s'e Wilcock's Settlement, L. R. 1 Ch. D. Trusts, 35 Ch. D. 728.
229 3 Gardner v. Heyer, 2 Paige, 11 ;
1 Per M. R., in Medworth v. Pope, Bunn v. Winthrop, 1 Johns. Ch. 338;
27 Beav. 71. A chWd en ventre sa mere Harten v. Gibson, 4 Desaus. 139; 2
at date of the will, though not born Kent, Com. 216; Shearman i;. Angel,
until after testator's death, may take Bail. Eq. 351 ; Collins r. Hoxie, 9 Paige,
a bequest. Crook v. Hill, 3 Ch. D. 88. Illegitimate children cannot take
773. And see L. R. 6 H. L. 265. Further under a trust limited to " lawfully be-
important illustrations of the equity gotten children." Edwards's Appeal,
doctrine may be seen in the re;'ent 108 Penn. St. 238. But " heirs " lim-
cascs of Lambe v. Fames, L R. 6 Ch. ited to "children" may include illegit-
597; Holt v. Sindrey, L. R. 7 Eq. 170; im.ate children under a fair construction.
Savage r. Robertson, L. R. 7 Eq. 17tj. Howell >: Tyler, 91 N. C. 207. See also
And as to the application of 27 Eliz. c. King v. Davis, ib. 142.
4, to marriage settlements for bastards,
423
§ 282 THE DOMESTIC RELATIONS. [PART III.
child of a woman then pregnant, is sustained here as in England.^
But whether our tribunals would sanction a bequest to other un-
born illegitimate children generally may admit of doubt, pro-
vided such child were never legitimated by subsequent marriage.
For, after all, there must be some discrimination made against
criminal intercourse.^
§ 282. Guardianship of an Illegitimate Child. — Testamentary
guardianship, of which we are to speak in another connection,
is of such a nature that a father cannot by his will appoint a
guardian for his illegitimate children.^ But the putative father
of a bastard child has been considered a proper person to peti-
tion for a probate guardian, as against all except the mother.*
1 Knye v. Moore, 5 Harr. & Johns, morals and public policy. Kingsley v.
10. As to legacies and devises to ille- Broward, 19 Fla. 722.
gitimate children under American laws, ^ Sleeman r. Wilson, L. R. 13 Eq.
see 4 Kent, Com. 413, 414, and cases 36. Guardians are of course appointed
cited; Hughes v. Knowlton, 37 Conn, on occasion for illegitimate minors, as
429. for instance in case such a child has
2 A general limitation to a woman's a legacy. Johns v. Emmett, 62 Ind. 533.
future illegitimate issue is against good * Pole's Appeal, 106 Penn. St. 574.
424
PART IV.
GUAEDIAN AND WARD.
CHAPTER I.
OF GUARDIANS IN GENERAL ; THE SEVERAL KINDS.
§283. Guardianship Defined; Applied to Person and Estate.
— Tlie guardian is a person entrusted by law with the interests
of another, whose youth, inexperience, mental weakness, and
feebleness of will disqualify him from acting for himself in the
ordinary affairs of life, and who is hence known as the ward.
Guardianship usually applies to minor children ; and in this
sense the guardian may be either their natural protector, whose
authority is founded upon universal law, or some person duly
chosen to act on their behalf. Thus, the father (and sometimes
the mother) exercises the right of custody and nurture as the
child's natural guardian ; while, if the parents are dead, some
one must be selected to supply their place. And since the
parental control does not extend to the estate of a minor, the
appointment of a guardian may be both necessary and proper,
when property becomes vested in a child under age. Guardian-
ship applies also at the present day to idiots, lunatics, spend-
thrifts, and the like ; and the guardian of such person derives
his authority from statute law and a special appointment. This
guardian is sometimes designated as the committee.
The law of guardianship is most naturally divided into guar-
dianship of the person, and guardianship of the estate. Guar-
dianship of the person is a relation essentially the same as that
of parent and child, though not without some important differ-
425
§ 284 THE DOMESTIC RELATIONS. [PART IV.
ences, as we shall see hereafter. Hence the guardian has been
called " a temporary parent." ^ Guardianship of the estate bears
a closer resemblance to trusteeship ; guardians and trustees be-
ing alike bound to manage estates with fidelity and care, under
the supervision and direction of the chancery courts. The same
person is often guardian of both the person and estate of the
ward ; but not necessarily, for these may be kept distinct. So,
too, there may be joint guardians, as in other trusts.
§ 284. Classification of Guardians in England; Obsolete Spe-
cies. — The law of guardianship, in England, is one of irregular
growth. Guardians, until chancery jurisprudence became fully
developed, were recognized only for certain limited purposes.
Their powers were restricted, and new classes were created from
time to time, as the exigency arose. One species of guardian-
ship would fall into disuse and another spring up in its place.
Hence it is found difficult to attempt a classification, or reduce
the general authority of guardians to a definite system. A re-
cent English text-writer enumerates no less than eleven differ-
ent kinds of guardians, many of which are obsolete, and others
of merely local application .^ Among them may be mentioned
guardianship in chivalry, an incident of the feudal tenure, more
in the nature of a hardship than a privilege, so far as the ward
was concerned, which was finally abolished in the time of
Charles II. ; guardianship hy special custom, which was con-
fined to London and certain other localities, and appears to
exist no longer; guardianship hy appointment of the spiritual
courts, traces of which still exist in the appointment of adminis-
trators durante minore cetate ; guardianship hy prerogative, appli-
cable only to the royal family ; and guardianship hy election of
the infant, which appears to us more properly considered at this
day in connection with the appointment of chancery guardians.
But guardianship hy nature and nurture, guardianship in socage,
testamentary guardianship, and chancery guardianship, require
special consideration, and these will be taken up in order.
1 1 Bl. Com. 460; 2 Kent, Com. 220. ing guardianship under Stat. 4 & 5 P.
2 Macphers. Inf. 2 et seq., to which & M. c. 8, alluded to in 1 Bl. Com. 461,
the reader is referred for a full account and repealed by 9 Geo. IV. c. 31. See
of these kinds of guardianship, includ- also 1 Bl. Com. 461, and Harg. notes.
426
CHAP. I.] GUARDIANS IN GENERAL. § 285
§ 285. English Doctrine ; Guardianship by Nature and Nurture.
— Guardianship by nature and nurture denotes hardly more or
less than the natural right of parents to the care and custody of
their children. It has been usual to treat of guardians by nature
as distinct from guardians by nurture ; but in reality the latter
constitute, for practical purposes, only a species of the former.
Mr. Macplierson considers them together, and doubts whether
guardianship by nature, as known in the old law, has existed
since the time of Charles II., when feudal tenures were abol-
ished ; for it appears to have originated in the practice of sell-
ing the marriage of the heir.^
Guardianship by nature and nurture belongs exclusively to
the parents : first, to the father, and, on his death, to the mother.
The father's right was formerly preferred to the mother's in all
cases ; while the modern tendency is otherwise. The office of
natural guardian lasted during the minority of the child ; but
guardianship by nurture ceased when he attained the age of
fourteen. So guardianship by nature applied to the heir appar-
ent or presumptive, and guardianship by nurture to the other
children. Guardianship by nature was something higlier than
guardianship by nurture.^ But it is, nevertheless, clear that
the father has a right, recognized by general law, to the cus-
tody of all his children, not only during the period of nurture,
but until the age of majority. So, too, the mother, if not super-
seded by the infant's election at fourteen, or by the appointment
of a new guardian, has, in the absence of the father, the legiti-
mate care of the child for the same period.^
The authority of such guardians extends only to the ward's
person. They have no right to intermeddle with his property.*
Blackstone says that, if an estate be left to an infant, the father
is, by common law, the guardian, and must account to his child
for the profits. But this is only because the law holds him and
1 Macphers. Inf. 52, 58. See also 1 * 1 Bl. Com. 461, and Harg. notes;
Bl. Cona. 461, and Harg. notes 1 & 3 ; 2 Kent, Com. 220, 221 ; Hyde v. Stone,
2 Kent, Com. 220, 221. 7 Wend. 354 ; Kline v. Beebe. 6 Conn.
2 1 Bl. Com. 461, and Harg. notes; 494; Fonda v. Van Home, 15 Wend.
2 Kent, Com. 220, 221. 6:]1. And see Wall v. Stanwick, 34
3 Macphers. Inf. 61, 65 ; supra, §§ 245, Cli. D. 763, as to liability for rents and
252. profits.
427
§ 286 THE DOMESTIC KELATIONS. [PART IV.
all others responsible as a quasi guardian ; and it is well settled
at the present day, that if a child becomes vested with property
during his father's lifetime, there is no one strictly authorized to
take it until a guardian has been duly appointed.
Guardianship by nature and nurture is inferior to guardian-
ship in socage ; and it yields to every kind of guardianship
which exists by strict appointment, so far as the ward's prop-
erty is concerned, though not necessarily as to his person.
§ 286. English Doctrine ; Guardianship in Socage. — Guar-
dianship in socage arises, at common law, whenever an infant
under fourteen acquires title to real estate ; the chief object of
the trust being the protection of such property and the instruc-
tion of the young heir in the pursuit of agriculture.^ It applies
only when the infant has land by descent, and cannot exist if
his estate be merely personal. His title, too, must be legal and
not merely equitable ; hence it would seem that there cannot be
a guardian in socage where the interest of the ward is only re-
versionary .^ This species of guardianship was anciently assign-
able, so far at least as the custody of the infant was concerned ;
but by the doctrine and practice of later times it became
regarded as a strictly personal trust, neither transmissible by
succession, nor devisable, nor assignable.^
The duty of the guardian in socage is to take possession of
the heir's person and real estate, to receive the rents and profits
until the heir reaches the age of fourteen, to keep his evidences
of title safely, and to bring him up well* His powers are com-
mensurate with his duties. He acquires by virtue of his office
an actual estate in the ward's land, though not to his own use ; ^
he may gain a settlement by actual residence upon it ; ^ and he
can grant leases terminable, and perhaps even void, when the
ward reaches the age of fourteen.' A guardian in socage cannot
1 1 Bl. Com. 461, and Hargr. n. ; 2 5 piowd. ch. 293; Macphers. Inf.
Kent, Com. 220 ; Dagley v. Tolferry, 1 28; Rex v. Sutton, 3 Ad. & El. 597.
P. Wms. 285. 6 Rex v. Oakley, 10 East, 491 ; Mac-
2 Macphers. Inf. 19 ; 2 Bl. Com. 88. pliers. Inf. 28.
8 Macphers. Inf. 20 et seq. ; 2 Bl. "^ Bac. Abr. Leases, i. 9 ; 1 Ld.
Com. 461, and Harg. n. ; 2 Kent, Com. Baym. 131 ; Rex r. Sutton, 5 Nev. &
223 M. 353 ; Macphers. Inf. 35, 36.
* Co. Litt. 89 ; Macphers. Inf. 28.
428
CHAP. I.] GUARDIANS IN GENERAL. § 287
be removed from office, but the ward may supersede him, at this
age, by a guardian of his own choice.^
Guardianship in socage has been said to extend to the heir's
personal property ; but there is insufficient legal authority for
such a supposition, though it is likely that the farm-stock and
household chattels of the ward were included ; and when this
5uardianship was common, personal property consisted of little
else.2
One peculiarity of this guardianship was that the trust
belonged only to such next of blood to the child as could not
possibly inherit, and it devolved upon him without appoint-
ment ; the common law, with a characteristic distrust of human
nature, deeming it imprudent to confide the child's interests to
one who expected the succession. For, as Fortescue and Sir
Edward Coke affirmed, to commit the custody of the infant to
such a person was like giving up a lamb to a wolf to be de-
voured.^ Guardianship in socage has passed into disuse, though
it cannot be said to have been actually abolished.
§ 287. English Doctrine ; Testamentary Guardianship. — Tes-
tamentary guardianship was instituted by the statute of 12
Car. II. c. 24, and for this reason testamentary guardians are
sometimes called statute guardians.* This statute provided that
any father, whether an infant or of full age, might, by deed
executed in his lifetime, or by his last will and testament, dis-
pose of the custody and tuition of his child, either born or
unborn, to any person or persons in possession or remainder,
other than popish recusants ; such custody to last till the child
attained the age of twenty-one, or for any less period, and to
comprehend, meantime, the entire management of his estate,
both real and personal. So far as popish recusants are con-
cerned, this statute has since been modified ; and all religious
disabilities as to the office are now removed ; ^ and since the
statute of 1 Vict. c. 26, an infant, though the father, cannot
exercise the right of testamentary appointment ; otherwise, the
1 Co. Litt 89 a; Macphers. Inf. » Co. Litt. 88 6 ,• 1 Bl. Cora. 462.
41. * 1 Bl. Com. 462.
2 Macphers. Inf. 31 ; Bedell v. Con- 6 31 Geo. III. c. 32; 4 Mont. & C.
stable, Vaugh. 185. But see Harg. n. 687 ; Corbet v. Tottenham, 1 Ball &
67 to Co. Litt. 89. B. 59.
429
§ 287 THE DOMESTIC RELATIONS, [PART IV.
statute remains in force. Under this English law it matters
not what are the father's religious opinions.^ But a mother
cannot appoint, nor a putative father, nor a person in loco
parentis?
The important question, arises, under this statute, whether
the words " by deed executed in his lifetime " permits the
father to dispose of his children by any instrument not testa-
mentary he may see fit to make. Lord Eldon was of the
opinion that he could not, but was confined to a testamentary
instrument in the form of a deed, which cannot operate during
life and may be revoked at pleasure.^ Such is doubtless the
English law at the present day.*
Testamentary guardianship gives the custody of the ward's
person, and of all his real and personal estate ; and it embraces
not only such property as comes to the ward through descent,
devise, bequest, or inheritance from the father, but all that he
may acquire from any person whomsoever, and whether real or
personal. This shows that the guardian's interest is derived not
from the father, but from the law itself, for the father could
give him no interest over that which was never his own.^
Besides having the advantage of full control over the ward's
entire estate, the testamentary guardian stands better than the
guardian in socage, inasmuch as his power lasts until the ward
reaches his majority, unless the father has seen fit to limit his
trust to a less period.
Testamentary guardianship, as now understood, was unknown
to the common law. Lord Alvanley said, in Ex 'parte Ilchcster :
" It is clear, by the common law, a man could not, by any tes-
tamentary disposition, affect either his land or the guardianship
of his children. The latter appears never to have been made
the subject of testamentary disposition till the statute 12
Charles IL" ^ But it seems probable, from some expressions of
1 Villareal v. Mcllish, 2 Swanst. S-jS. * Macpherson intimates a different
2 Macpliers. Inf. 88 ; 1 Bl. Com. opinion. See Macpliers. Inf. 84 ; Le-
462, Harg. n. ; Vaugh. 180; 3Atk. 519; cone r. Slieires, 1 Vern. 442. And see
supra, §§ 245, 283. Desribes v. Wilmer, 69 Ala. 25; § 299.
3 Ex parte Earl of Ilcliester, 7 Vcs. ^ Macpliers. Inf. 91. See also Gil-
367 ; Earl of Shaftesbury v. Lady Han- liat v. Gilllat, 3 Pliillim. 222.
nam, Fincli Rep. 323. « 7 Ves. 370.
430
CHAP. T.] GUAllDIANS IN GENERAL, § 288
Lord Coke, that, so far as the custody of the ward's person was
concerned, though not as to his lands, testamentary dispositions
were not unknown to the old common law, and that this testa-
mentary guardian, sometimes confounded with the guardian for
nurture, had the care of the child until he reached the age of
fourteen, with power to dispose of his chattels.^
§ 288. English Doctrine ; Chancery Guardianship. — Guardians
by appointment of a court of equity, or chancery guardians, as
they are termed, have, within the last century, assumed such
importance as almost to supersede, in the English practice, the
other kinds, except perhaps the testamentary guardian. The
earliest known instance of such an appointment occurred in
1696.^ Blackstone speaks of the practice in his day as appli-
cable chiefly to guardians with large estates, who sought to
indemnify themselves and to avoid disagreeable contests with
their wards, by placing themselves under the direction of the
Court of Chancery.^ The origin of this guardianship is obscure.
Mr. Hargrave considered it an act of usurpation by the Lord
Chancellor, but admitted the jurisdiction to have been fully
established in his time.* Fonblanque warmly controverts the
charge of usurpation, claiming that the jurisdiction exercised by
the Court of Chancery over infants flows from its general
authority, as delegated by the crown.^ This latter view has
met with the best judicial approval ; for, as Lord Hardwicke
and others have expressed it, the State must place somewhere
a superintending power over those who cannot take care of
themselves ; and hence chancery necessarily acts, representing
the sovereign as imrms ijatricv.^ From the peculiar nature and
restrictions of the other kinds of guardianship, many orphans,
whose fathers had failed to appoint a testamentary guardian for
them, would be otherwise without protection either of person or
property. Whatever may be the origin of the jurisdiction by
1 Co. Litt. 87 h ; Co. Cop. § 23 ; Mac- 5 2 Fonb. Eq. 228, n., 5th ed. ; 2
phers. Inf. 68. Story, Eq. Juris. § 133.3.
2 Case of Hampden. See Co. Litt. ^ Butler v. Freeman, Ambl. 301.
88 b, Harg. n. See Lord Tlmrlow, in Powell v.
■^ 1 Bl. Com. 463. Cleaver, 2 Bro. C. C. 499 ; Lonl Eldon,
* Co. Litt. 89a, Harg. n. 70. in De Manneville v. De Manneville, 10
Ves. 52.
431
§ 288 THE DOMESTIC RELATIONS. [PART IV.
virtue of which courts of chancery appoint guardians in such
cases, the right of making such appointments, and in general of
controlHng the persons and estates of minors, has long been
firmly established, and cannot at this day be shaken.
An infant is constituted a ward in chancery whenever any
one brings him in as party plaintiff or defendant, by a bill ask-
ing the directions of the court concerning his person or estate,
or the administration of property in which he is interested.^
In this character he is treated as under its special protection.
Again, a petition may be presented for the appointment of a
chancery guardian, alleging that the infant has estate, real or
personal. But the mere appointment of a guardian, in this in-
stance, will not make him a ward in chancery.^ Where a suit
is pending, the court appoints a guardian of the jperson only ; in
other cases a guardian of the person and estate^ So chancery
will appoint a guardian on petition, where testamentary guar-
dians decline to act ; and, if necessary, determine on petition the
right of a guardian already appointed.*
As to the general jurisdiction of chancery over infants, it may
be observed that in the appointment and removal of guardians,
in providing suitable maintenance, in awarding custody of the
person, and in superintending the management and disposition
of estates, the chancery court wields large powers for the benefit
of the young and helpless. This jurisdiction, being clear of
technical rules and dependent upon the discretion of the Chan-
cellor, adapts itself far more readily to the various grades of
society, the intention of testators, the wants and wislies of the
infants themselves, and the different varieties of property, than
all the other guardianships combined.^ By compelling trust
officers to give security, to invest under its direction, and to
keep regular accounts, the court exerts a wholesome restraint
on the ward's behalf, while at the same time it arms the guar-
dian against all attacks of a capricious heir, by affording its
sanction to his official acts.
Chancery guardians are, in general, only appointed where
there is property ; but this is because guardianship can scarcely
1 Macphers. Inf. 103 ; Ambl. 302 n. » lb. 105. ♦ lb. 104.
2 Macphers. Inf. 104. ^ i b1. Com. 463, Harg. n.
432
CHAP. I.] GUAEDIANS IN GENERAL. § 289
be necessary otherwise. Chancery, as Lord Eldon observed,
cannot take on itself the maintenance of all the children in the
kingdom.^ Hence persons desiring to call in the authority of
the court for the protection of an infant sometimes resort to the
expedient of settling a sum of money upon him.^ The great
objection to chancery guardianship is its expense ; and the
lavish outlay of money which becomes requisite at every step
renders the practical benefit to the minor often questionable.
Less cumbrous machinery would remedy this evil. There are
some English statutes relating to the poor, the employment of
apprentices, and the like, which, in connection with the writ of
habeas corpus, are designed to supersede, in a measure, the neces-
sity of personal guardianship, for those who are without property
and yet need protection.^
§ 289. English Doctrine; Guardianship by Election of Infant.
— Guardianship by election of the infant deserves a passing
notice. We have seen that the infant in socage had the right
of choosing a guardian at the age of fourteen. This age was
recognized also as the limit to guardianship for nurture ; the
law choosing to yield somewhat to the ward's discretion thence-
forth.* The socage ward might therefore, if he had no testa-
mentary guardian, choose one to act on his behalf until majority,
by executing a deed for that purpose. But little is really known
on this subject, and the instances mentioned in the books are
exceedingly rare.^ Blackstone again, speaking of guardians for
nurture, adds that, in default of father or mother, the ordinary
usually assigns some discreet person to take care of the infant's
personal estate, and to provide for his maintenance and educa-
tion.^ The practice in the spiritual court was to permit the
minor, when of suitable age, to nominate his guardian subject
to its approval. This was but a limited privilege, after all,
though it seems to have been granted to all children between
seven and twenty-one.' It is manifestly different from the
1 Wellesley v. Duke of Beaufort, 2 ^ Co. Litt. 88 6, Harg. n. 16; Mac-
Russ. 21. phers. Inf. 77.
2 Macphers. Inf. 10.3. e j b1. Com. 461.
3 1 Bl. Com. 463, Harg. «., and acts '' Fitzgib. 164 ; Co. Litt. 88 6, Harg.
there enumerated. n. 16.
* Supra, § 285.
28 433
§ 290 THE DOMESTIC RELATIONS. [PART IV.
right of election allowed the socage ward. The authority of
spiritual courts to appoint a guardian of the person and estate
was emphatically denied by Lord Hardwicke, and chancery
afterwards took this guardianship completely into its own keep-
ing. The infant, above the age of fourteen, is still permitted
to nominate his guardian before the Court of Chancery ; but
his nomination does not supersede the authority of the court,
whether he be a socage ward or not.^ Guardianship by elec-
tion of the infant has thus become a misnomer, for he does not
absolutely elect.
§ 290. Classification of Guardians of Minors in the United
States ; Nature and Nurture, Socage, and Testamentary. — Guar-
dianship in the United States differs considerably from guar-
dianship in England. Here the whole subject is controlled in
a great measure by local statutes. There are fewer kinds of
guardians found in American practice, though some of the more
important classes are recognized to a limited extent. Thus
guardianship by nature and nurture, or the parental right of
custody, prevails in most of the States. But as all children,
male and female, inherit alike with us, guardianship by nur-
ture is not here so clearly distinguished from guardianship by
nature, as in the English practice.^
Guardianship in socage was never common in the United
States, But traces of its existence are to be found. Thus,
in 1809, a guardian in socage, in New York, was permitted to
bring trespass and ejectment.^ This species of guardianship is
now almost wholly superseded. In fact, it could seldom have
arisen, since half-blood and whole-blood relatives in this coun-
try inherit alike; so that a blood relation who cannot pos-
sibly inherit could rarely be found to assume the duties of the
1 Co. Litt. 88 b, Harg. n. 16 ; Hughes Wyatt, 15 Ga. 414 ; Lamar v. Micon,
V. Science, 3 Atk. 631 ; Macphers. Inf. 114 U. S. 218, 222.
74, 78. * Byrne v. Van Hoesen, 5 Johns. 66.
'■^ 2 Kent, Com. 221 ; Reeve, Dom. See also Jackson v. De Walts, 7 Johns.
Rel. 315; Macready v. Wilcox, 33 157. The widowed mother of an in-
Conn. .321. That the grandfather or fant who owns real estate is in this
grandmother, when the next of kin, State a general guardian, with the
may, on the death of father or mother, rights, powers, and duties of a guar-
be guardian by nature, see Darden v. dian in socage. Hynes Re, 105 N. Y.
660.
434
CHAP. I.] GUARDIANS IN GENERAL. § 290
office.^ A father who holds lands for life, with the remainder
vested in his children, cannot be their guardian in socage.^ And
the lease of his ward's lands by any such guardian may be de-
feated by the appointment of another guardian, pursuant to
the statute, who elects to avoid it.^
We have testamentary guardians, with essentially the same
powers and duties as in England. The statute of 12 Charles II.
has been enacted in most of the United States, with the lan-
guage somewhat changed. No religious disabilities are imposed
in our law. But while some States follow the words of the
ancient statute as to minor fathers, the risrht is elsewhere re-
stricted to such as are competent to make a will ; and this is a
preferable expression. For precise modifications the student
should consult the laws of his own State. Some statutes use
the words "deed or will." The Ohio statute drops the word
" deed " altogether. And not uncommonly is it found in
America that testamentary guardians can only be appointed
by a will executed with the usual solemnities.*
The right of testamentary appointment is still confined to
the father in most States. But an Illinois statute permits the
mother, if not remarried, to appoint such a guardian, provided
no appointment was previously made by the father. In New
York, the consent of the mother, if living, was lately required
to a testamentary appointment by the father ; ^ a provision after-
wards repealed.^ So, too, the English principle prevails, that
the testator can appoint a guardian over his own children only ;
the right extending, however, to posthumous offspring. He
cannot appoint guardians for other children, though he give
them his property.'^ But where a statute provides that a child
^2 Kent, Com. 222, 22.3; Reeve, rived exclusivel}' from the local statute.
Dom. Rel. .315, 316. Tliomson v. Thomson, 55 How. (N. Y.)
■^ Graham v. Houghtalin, 1 Vroom, Pr. 494. A mother has no power to
552. appoint unless the statute is explicit.
» Emerson v. Spicer, 46 N. Y. 594. Ex parte Bell, 2 Tenn. Ch. 27.
* See 2 Kent, Com. 225, 226 ; Hoyt ^ n. y. Stat. 1862, c. 172. And see
V. Hellen, 2 Edw. Ch. 202; Matter of Sackett's Estate, 1 Tuck. (N. Y. Surr.)
Pierce, 12 How. Pr. 532 ; Vanartsdalen 84.
V. Vanartsdalen, 14 Penn. St. -384; * 6 gf^t. 1871, construed in Fitzgerald
Wardwell v. Wardwell. 9 Allen, 518. v. Fitzgerald, 31 N. Y. Supr. 370.
In New York the father's right to ap- " Brigliam v. Wheeler, 8 Met. 127 ;
point a testamentary guardian is de- 2 Kent, Com. 225.
435
§ 291 THE DOMESTIC RELATIONS. [PART IV.
may be adopted by one with the same rights as if the offspring
were his own, it seems just that the father, thus constituted,
should have the right of appointing a testamentary guardian
for his adopted child, just the same as for other children.^ A
grandfather has no right to appoint a testamentary guardian.^
§291. Ametican Doctrine; Chancery and Probate Guardian-
ship. — Chancery guardianship may be considered as adopted
to some extent in this country. The supreme courts in many
States have now full chancery powers, as in England, over the
persons and estates of infants ; they may order investments,
decree care and custody of the person, take children under their
protection as wards of the court in certain cases, regulate the
conduct of guardians, and otherwise exercise the important
functions which vest in the English equity courts. But Eng-
lish chancery jurisprudence is one thing, and that of the United
States another. While in one country the appointment, re-
moval, and general supervision of guardians belong immediately
to the equity courts, in the other a special tribunal is usually
created by local statute for such matters. It is this special
tribunal — somewhat resembling the English ecclesiastical court
— which alone issues letters of guardianship, revokes them, and
superintends trust accounts in the first instance. The guardians
thus chosen, have, in general, the rights and duties of chancery
guardians of the person and estate.
The propriety of distinguishing between chancery guardians
and those appointed by the special courts of this country —
whether known as the probate, orphans', ordinary's or surro-
gate's court — is obvious when the origin of our probate juris-
diction is considered. At the time America was colonized,
1 As to divorced parents, the ques- Noble, 37 Tex. 731. Divorce, it would
tion of testamentary guardianship is. appear, does not take away tiie father's
presented under a new aspect. Where power to appoint a testamentary gnar-
a mother is allowed by statute or other- dian. See Hill v. Hill, 49 Md. 450,
wise to dispose of the guardianship of where custody of the child was given
her minor child, by will, she is assumed to the father with a right of access to
to have been the survivor of her hus- the mother.
band. A divorced wife, invested with ^ Fullerton v. Jackson, 5 Johns. Ch.
thecustody of the minor child by order 278; Ex parte Bell, 2 Tenn. Ch. 327.
of court, has presumably, as such, no See further, as to the appointment of
such right to appoint, especially if testamentary guardians, c. 2, post.
divorced for her fault. McKinney v.
436
CHAP. I.] GUARDIANS IN GENERAL. § 291
chancery guardianship was unknown in England. The eccle-
siastical or spiritual courts, independent of all temporal author-
ity, controlled the estates of orphans and their deceased parents.
The necessity of some tribunal with probate jurisdiction was
soon apparent to our ancestors ; but, rejecting the idea of a
church establishment, they distributed probate and equity pow-
ers among the common-law courts. Their judicial system was
at first simple : that of local county courts with a supreme
tribunal of appeal. With the growth of population came a
division of these powers in the inferior courts. New county
tribunals were erected for business appertaining to estates of
the dead, testamentary trusts, and the care of orphans ; a
blending, as it were, of ecclesiastical and equity functions.
The old county courts were left to their common-law jurisdic-
tion, while the supreme tribunal retained control over them all,
exercising appellate powers in common law, equity, and eccle-
siastical suits. Such, in a word, is the general origin of guar-
dianship by judicial appointment in this country.^ While the
English chancery court was slowly extending its rights over
the persons and estates of infants, another system was in
process of growth on this side of the water, borrowing from
English law as occasion offered, and adapting itself to the
increasing wants of our own community. This system, fos-
tered doubtless by a strong prejudice against chancery practice,
with its expensiveness and prolixity of pleadings, a prejudice
widely prevalent during the last century, especially in New
England, spread gradually into the new States and Territories,
the creature of statute law wherever it went.
Much confusion has arisen in our courts wherever this dis-
tinction has not been kept in view. The law of guardianship is
often discussed as though we inherited the English chancery
system, when in truth our usual practice is without its counter-
part abroad. The only American text-writers of authority on
this subject, Eeeve and Kent, have contributed to this per-
plexity. The former was not precise in his classification. ^ The
latter unwisely confused American and English appointments,
1 See Smith (Mass.) Prob. Pract. 1-5.
2 Reeve, Dora. Rel. 311.
437
§ 292 THE DOMESTIC RELATIONS. [PART IV.
applying the term chancery guardians to both.-^ But the courts
have sometimes perceived the necessity of a separate name for
guardians appointed by courts of probate jurisdiction. Accord-
ingly, they have been called guardians of the person and estate ; ^
but this name is quite as appropriate to others. So, too, they
are designated as statute guardians ; but there are statute mod-
ifications applied to all kinds of guardians, and besides, this
name was long ago bestowed by English writers upon testamen-
tary guardians^ We shall apply, then, in these pages, for want
of something better, the distinguishing term prolate guardians,
this being sufficiently precise and suggestive ; though it is
admitted that the appointing power is not lodged in tribunals
styled probate courts in every State, nor necessarily separated
from courts exercising common-law functions.
§ 292. Guardianship by the Civil Law. — By the civil law,
minority was divided into two distinct periods : the first lasting
until the age of puberty, fourteen in males, and twelve in
females ; the second continuing from that time until majority.
During the first period the guardian was called tictor, and the
children pupils. During the second period the guardian was
called curator, and the children minors; the curator being
appointed with special reference to the management of prop-
erty.* The same general divisions are to be found in the law
of continental Europe at the present day, though modified
somewhat by custom ; also in Scotland ; ^ also in Louisiana,
and other parts of this country, which were formerly under
French and Spanish dominion. But the term curator is in
some codes applied to the guardian of the estate of the ward as
distinguished from the guardian of the person.^ So the civil
law recognized three kinds of guardianship : tutcla testamentaria,
conferred by testament ; Icgitima, by the law itself ; dativa, by
the authority of the judge.'^ These divisions have their cor-
responding analogies in English and American law ; since we
1 2 Kent, Com. 226. ^ Fraser, Guardian & Ward, 145.
2 See Arthur's Appeal, 1 Grant ^ 2 Kent, Com. 224; Duncan v.
(Penn.), 55. Crook, 49 Mo. 116.
3 See supra, § 287. ^ Co. Cop. § 23 ; Macphers. Inf. 573 ;
4 Storv, Confl. Laws, § 493 ; 3 Purge, 3 Purge, Col. & For. Laws, 931.
Col & For. Laws, 930, 1001-1014.
438
CHAP. I,] GUARDIANS IN GENERAL. § 293
may place testamentary guardians in the first class, socage and
natural guardians in the second, and chancery and probate
guardians in the third.
§ 293. Guardians of Idiots, Lunatics, Spendthrifts, &c. — The dif-
ferent kinds of guardianship for minors having been considered,
we proceed to speak briefly of guardians for idiots, lunatics, and
spendthrifts, though this subject comes hardly within our scope.
Under the king's sign-manual, the Lord Chancellor was invested
with jurisdiction over the persons and estates of insane persons.
For this reason did chancery claim authority ; not by virtue of
the king's prerogative as parens patriae ; for idiots and lunatics,
it is said, were not under the protection of the sovereign until
the time of Edward 11.^ Lunatic asylums are provided by law,
and regulated from time to time. For legally determining the
question of insanity in any case, chancery grants a commission
in the nature of a writ, directed to masters in lunacy ; and if
the subject be found non compos, the court commits his person,
together with a suitable allowance for his maintenance, to some
person who is then called his committee.^ Blackstone states
that the rule in his day was to refuse this guardianship to the
lunatic's next of kin, " because it is his interest that the party
should die ; " but this rule has long been disregarded in prac-
tice.3 The committee manages his ward's estate, much the
same as other guardians, being held to a strict account to the
court of chancery, and to the ward, if he recovers, or otherwise to
his personal representatives after his death. There are receivers
appointed, with a salary, in case others refuse to act ; but such
officer is considered as a committee and gives proper security.*
Guardians of insane persons are appointed in this country;
but in general by the courts exercising jurisdiction in case of
minors, which derive also their authority from local statutes.^
1 2 Story, Eq. Juris. §§ 1335, 1336 ; St. 455 ; Angell v. Probate Court, 11
1 Bl. Com. 303 ; 3 P. Wms. 108. K. I. 187. Where one is incapable to
2 1 Bl. Com. 306. See Lunacy TJog- manage liis own estate because of men-
ulation Act 1853, 16 & 17 Vict. c. 70. tal unsoundness, the appointment is
3 Ex parte Cockayne, 7 Ves. 591. generally authorized without refer-
* 1 Bl. Com. 306. See Ex parte ence to the cause of such unsound-
Warren, 10 Ves. 622. ness. Robertson v. Lyon, 24 S. C.
5 See U. S. Dig. " Idiots and Luna- 266; Barbo v. Rider, 67' Wis. 698; 108
tics ; " Shroyer v. Richmond, 16 Ohio Ind. 545.
439
§ 295 THE DOMESTIC RELATIONS. "[PART IV.
The civil law likewise assigned tutors and curators to such
persons.^
Guardianship for spendthrifts was something recognized by
the civil law. Where a man by notorious prodigality was in
danger of wasting his estate, he was looked upon as noii compos,
and committed to the care of curators or tutors by the praetor.^
And by the laws of Solon, such persons were branded with
perpetual infamy.^ Such guardianship is, however, unknown
in England, and Blackstone considered it unsuitable to the
genius of a free nation.* It has nevertheless been introduced
into several of the United States.^ Being the creature of stat-
ute law, the rights and powers of such a guardian, and the
method of appointment are strictly construed.
§ 294. Guardians of Married Women. — The modern statutes
relating to married women in this country have rendered some
special provisions necessary for their benefit. While their hus-
bands had the full enjoyment of their property, no guardian
was necessary, and the main object of these statutes seems to
be to provide a suitable trustee of the estate, in case a minor or
insane wife is abandoned by her husband, or he is likewise
mentally unfitted for the trust. Such statutes are to be strictly
construed as in derogation of the common law.^
§ 295. Special Guardians ; Miscellaneous Trusts. — Besides
guardians with general powers, there are guardians created by
law for special purposes. Such are guardians under the Eng-
lish marriage act, appointed for giving formal consent to the
marriage of a minor, and guardians to release dower and home-
stead rights of insane married women. All such guardians
derive their sole authority from statutes, and, having performed
the duty prescribed, they have no further concern with the
ward. Nor do they act except in default of a general guardian.
There are also public officers appointed for charitable purposes
on behalf of the State, sometimes known as guardians, — such as
guardians of the poor; but, except for this appellation, they
1 1 Bl. Com. 306. 6 gee Mass. Gen. Sts. c. 109, §§ 8, 9.
2 Ff. 27, 10, G, 16. 6 Smitli, Prob. Pract. 87 ; Schouler,
« Potter, Antiq. b. 1, c. 26. Hus. & Wife, Appendix.
* 1 Bl. Com. 306.
440
CHAP. II.] APPOINTMENT OF GUARDIANS. § 298
have no connection whatever with our subject.^ Special guar-
dians, too, are found under some statutes, their rights and
duties being merely temporary, pending some controversy over
the appointment of a general guardian ; just as special admin-
istrators are sometimes appointed in a case of emergency, and
where the appointment of the general administrator is neces-
sarily delayed.^
§ 296. Guardian ad Litem and Next Friend. — Finally, there
is the guardian ad litem, who is simply a guardian for a special
purpose ; being one chosen to represent the ward in legal pro-
ceedings to which he is a party defendant, and where he has no
general guardian to appear on his behalf. Where the ward is
plaintiff he appears by next friend. In eitlier instance the
father's natural right is respected.^ The powers and duties of
guardians acl litem are similar in England and the United
States."*
CHAPTEE II.
APPOINTMENT OF GUAEDIANS.
§ 297. Appointment of Guardians over Infants in General. —
Guardians derive their authority either from tho law or a special
appointment. And all guardians of infants specially appointed
must be appointed by the infant's parent ; or by the infant him-
self ; or by a court of competent jurisdiction.
§ 298. Guardians under Authority of the Law. — Guardians
by nature and nurture act under authority of the law, which
designates, first, the father ; and, after his death, the mother.
These are the only natural guardians possible.^ It has been
1 See Macpliers. Inf. 164 ; Smith, 3 See Woolf v. Pemberton, 6 Ch. D.
Prob. Pract. 87. 19.
2 Canipau v. Sbaw, 15 Mich. 226 ; * Macphers. Inf. 358 ; 2 Kent, Com.
Swartwout v. Oaks, 52 Barb. 622 ; 229. See Infants, post. Part V. c. 6.
Brown v. Snell, 57 N. Y. 286; Bond v. 5 Co. Litt. 88 6; 1 BI. Com. 461 ; 2
Dillard, .50 Tex. 302. And see In re Kent, Com. 220: ]\racpliers. Inf. -52;
Fortier, 31 La. Ann. 50. Jarrett v. State, 5 Gill & Johns. 27 ;
441
§ 299 THE DOMESTIC RELATIONS. [PART IV.
said that tlie infant's next of kin succeed to the natural guar-
dianship when both parents are dead.^ This cannot be correct
according to the sense of the term as used at this day. The
mother is considered the natural guardian of a bastard, in this
country, as against its putative father ;2 though the common
law regarded such children as without a natural guardian.^ On
principle, it would seem that the natural guardianship of a child
is shifted to the mother when custody is awarded her because
of her husband's personal unfitness. And the modern tendency
is to regard both husband and wife as guardians, by nature, of
their own children.*
Socage guardians also derived their authority from the law,
and not from a special appointment.^
§ 299. Testamentary Guardianship, how Constituted — Testa-
mentary guardianship is the only recognized instance of authority
derived from parental appointment. Guardians thus appointed
require at the old law no further qualification ; not even the
probate of the will which appoints them.^ But testamentary
guardianship exists in this country chiefly by force of local
statutes, which also regulate the form and authentication of
wills. And we find many modifications of the old English
rule ; none more important than those of several States which
render a probate of the will necessary before a testamentary
guardian can act ; while it is not unfrequently found that the
appointment remains subject to the approval of the court,
and requires the person appointed to qualify with or without
sureties.'^
Eldridge v. Lippincott, Coxe, 397 ; Hoyt's Case, 2 Edw. Ch. 113 ; In re
Fields V. Law, 2 Root, 320. Hart, 2 Con. & L. 375; Lady Chester's
1 See Eeeve, Dom. Rcl. 315. Case, Vent. 207. See 7 Ves. 365;
2 Wright V. Wright, 2 Mass. 109 ; Gilliat v. Gilliat, 3 Phillim. 222. The
Hudson V. Hills, 8 N. H. 417 ; People validity of the testamentary appoint-
?;. Kling, 6 Barb. 3G6; Dalton v. State, ment being in dispute, a court of com-
6 Blackf. 357. nion law over a question of custody
^ Macphers. Inf. 67 ; supra, §§ 278, has directed an issue in order to estab-
279. lish the same, /n re Andrews, L. R. 8
4 See stipra, §§ 247, 248,285; People Q. B. 153.
V. Boice, 39 Barb. 307. "^ Supra, §§ 287, 290 ; Re Taylor, 3
5 2 Kent, Com. 223 ; see supra, Redf . N. Y. 259 ; Wadsworth v. Con-
§§ 286, 290. nell, 104 III. 369.
6 Brigham v. Wheeler, 8 Met. 127 ;
442
CHAP. II.] APPOINTMENT OF GUARDIANS. § 299
The parol appointment of a testamentary guardian is insuffi-
cient^ But the instrument which designates him need not be
executed with the same formality as a will ; for the father, as
the old statute intimates, may appoint by testamentary deed.
It has been held that the appointment of guardians by a will
not duly attested was made good by a codicil duly attested,
written on the same paper, making certain alterations in the
will, and confirming it in other respects.^
It is sometimes difficult to determine what language will con-
stitute testamentary guardianship. The statute uses the words
" custody and tuition " in reference to the children ; and such
assignment of the children as confers, expressly or by implica-
tion, a power thus extensive, ought to suffice. Thus, where a
testator gives the " care and custody " of his children, further
directing that the person so entrusted shall be guided by the
advice of his executors, as to the children's education, this is
held to be a good appointment.^ So it is held that testamentary
guardianship was constituted, where a testator directed the
trustees of his will to procure a suitable house for the residence
of his children, who were infants, and to engage a proper person
for the purpose of taking the management and care of the house
and of his children during their minority ; and requested his
late wife's sister, if she should be alive at his decease, to take
such management and care on herself.* And in general testa-
mentary guardians need not be expressly designated as such ;
albeit, in order to constitute them by implication, the powers
essential to the office must be conferred.^
The devise of certain property "in trust" for infants is not a
devise of guardianship. Thus it was said by Lord Vaughan
1 Macpliers. Inf. 84. See Johnstone nurture of the infant. Desribes v.
V. Beattie, 10 CI. & Fin. 42. Wihiier, 69 Ala. 25.
2 l)e Bathe v. Lord Fingal, 16 Ves. ^ See Corrigan v. Kiernan, 1 Bradf.
167. But see Marshall, C. J., in Gaines 208 ; 69 Ala. 25.
V. Spaun, 2 Brock. 81; Wardwell v. * Miller ^^ Harris, 14 Sim. 540. See
Wardwell, 9 Allen, 518. A tcstamcn- Mendcs v. Mendes, 1 Ves. 89 ; 8. c. 3
tary guardian can only be appointed Atk. 619.
by an instrument admitted to probate, ^ Gaines r. Spaun, 2 Brock. 81 ;
which names such person, and indi- Peyton v. Smith, 2 Dev. & Batt. Eq.
cates that he is to have the care and 325; Johnstone v. Beattie, 10 CI. &
Fin. 42; Balch v. Smith, 12 N. H. 437.
443
§ 300 TFIE DOMESTIC RELATIONS. [PART IV.
•
that, where a testator devised land to a trustee, to be held in
trust for his heir, and for his maintenance and education until
he should be of age, this was no devise of the custody within
the statute, for he might have done this before the statute.^
The same may be said generally of legacies and bequests in
trust.^ But where a testator divided the residue into equal
parts, a certain number of which he gave to a minor child and
appointed the executors "guardians and trustees," there was
really no trust, in effect, and the executors were not constituted
trustees, but guardians simply.^
§ 300. The Same Subject. — Testamentary guardians, to use
the statute expression, may be appointed "either in possession
or remainder;" that is, successors in the guardianship maybe
designated. So they may be authorized to act during the full
term of the infant's minority or for a less period. So the will
may give authority to the surviving guardian to nominate a
person in the place of his co-guardian who has died ; although
it appears to be a general rule that one testamentary guardian
cannot appoint another, since his office is personal, and not
assignable.* In other words, the testator is allowed a liberal
discretion in his selection and in limiting authority. The paper
which creates a person testamentary guardian becomes thus the
test of his official powers and responsibility. Letters of guar-
dianship from the chancery or probate court give his appoint-
ment no additional force, unless required by statute. In fact,
such letters, however regarded in his dealings with strangers,
are as a rule, and independently of positive statute expression,
issued without jurisdiction.^ In general, a firm cannot be made
1 Bedell v. Constable, Vaugh. 177. testamentary guardian who must first
2 Kevan v. Waller, 11 Leigh, 414; qualify. Hence a non-resident alien is
Dunham i'. Hatcher, 31 Ala. 483. held incapable of serving. Re Taylor,
3 Hawley Re, 104 N. Y. 250. 3 Uedf. (N. Y.) 259. And see post,
* Goods of Parnell, L. R. 2 P. & 1). § 303. If the testator's will prescribes
379; Macphers. Inf. 82 ; Vaugh. 177. that the wife siiall be testamentary
5 Robinson v. Zollinger, 9 Watts, guardian of the children, "as long as
169; Morris v. Harris, 15 Cal. 226; she shall remain his widow," her au-
Holmes v. Field, 12 111. 424 ; Copp v. tliority ceases on her remarriage, and
Copp, 20 N. H. 284. See Macphers. a new appointment becomes necessary.
Inf. 84, 86 ; Stone v. Dorrett, 18 Tex. Corrigan v. Kiernan, 1 Bradf . Sur. 208 ;
700. But statutes may provide that Holmes v. Field, 12 111. 424.
letters of guardianship shall issue to a In a New York case, it was held,
444
CHAP. II.] APPOINTMENT OF GUAEDIANS. § 301
testamentary guardian of an infant ; nor probably can a corpo-
ration ; 1 though financial corporations are sometimes chartered
at this day with express power to assume fiduciary trusts.^
The testator's power of appointment extends to all his lawful
children surviving at his decease, being still minors and unmar-
ried. Posthumous children are, likewise, included. And the
testators appointment of his wife as testamentary guardian is
not revoked by the birth of such issue, subsequent to the exe-
cution of the will or testamentary deed appointing her; the
analogy of distribution of one's property failing to affect this
case.^ A testator cannot appoint a testamentary guardian
except to his own children ; but an attempt to appoint one for
others may create a trust.*
§ ))01. Guardianship by Appointment of Infant ; Right to
Nominate. — Guardianship by sole appointment of the infant
cannot now be said to exist. But at the common law there
was one instance where it arose ; namely, when the heir above
the age of fourteen chose to supersede his guardian in socage,
by one of his own choice, under a deed of appointment.^
Infants have still the privilege of nominating, though not
appointing, a guardian in court, after arriving at this age ; and
if judicially sanctioned, their choice is good. In the appoint-
ment of chancery guardians, the custom is for the court to
approve such nomination without the usual reference to a
master.^ But this is not an invariable rule.'^ Testamentary
on appeal from the surrogate, that tion. People v. Kearney, 31 Barb.
no probate guardian could be ap- 430.
pointed after the father's decease, ^ See Macphers. Inf. 109 ; De Mazar
where tlie father, being a man of indi- v. Pybus, 4 Ves. 644.
gent circumstances, had surrendered ^ Rice's Case, 42 Mich. 528 ; Re
his children to a charitable institution Cordova, 4 Redf. 66.
by an instrument in writing, executed 3 Hoilingsworth's Appeal, 51 Penn.
during his lifetime, and not long before St. 518; 2 Bro. C. C. 538; Macphers.
his death, in presence of two witnesses, Inf. 87.
which purported to " commit and sur- * Camp v. Pittman, 00 N. C. 615.
render " the children to the said insti- See § 282, as to illegitimate children.
tution pursuant to its charter. There 6 Supra, §§ 286, 289 ; Co. Litt. 89 a.
were no testamentary expressions used, ^ Ex parte Edwards, 3 Atk. 519;
nor did the instrument appear to have Macphers. Inf. 78, 109.
been executed in contemplation of ^ E.c parte Walking, 2 Ves. 470;
death. The decision of the court ap- Curtis v. Rippon, 4 Madd. 462; Coham
pears to rest on statutory interpreta- v. Coham, 13 Sim. 639.
445
§ 303 THE DOMESTIC RELATIONS. [PART IV.
guardians cannot be superseded in this way, nor chancery guar-
dians.i Statutes giving the right of selecting probate guardians
to infants above fourteen have been enacted throughout the
United States ; but the extent of this privilege is not uniformly
prescribed.^ Yet the ward cannot set aside a testamentary
or chancery guardian in this country ; nor, on principle, should
he be allowed to supersede a probate guardian properly ap-
pointed, unless authorized to do so by a positive statute.^
Having once exercised his right of choice, he is bound by the
appointment, and cannot nominate again, as his fancy pleases.*
In any event, the court must sanction the infant's selection,
and issue letters before the guardian can act ; so that this is
guardianship by appointment rather of the court than of the
infant, but not of course by judicial appointment at arbitrary
discretion.
§ 302. Chancery and Probate Guardians are Judicially Ap-
pointed.— Chancery and probate guardians, subject to the above
qualification, are created in strictness by the special appoint-
ment of a court exercising competent jurisdiction. And in dis-
cussing this subject of judicial appointment we shall consider,
first, the tribunal which appoints ; second, the persons properly
appointed ; third, the method of appointment ; and fourth, the
effect of the appointment.
§ 303. The Same Subject; Jurisdiction; how Obtained. — As
to the first point, it may be premised that in England all guar-
dians are appointed by the Court of Chancery in the exercise
1 Palmer, 22; Andrew, 313; Matter not be disapproved at tlie arbitrary
of Dyer, 5 Paige Ch. 5-34; Matter of discretion of tlie judge; but if one
Nicoll, 1 Jolms. Cli. 25 ; Matter of Rey- clioice be injudicious, tlie minor may
nolds, 18 N. Y. Supr. 41. Nor the choose another, and upon the choice of
motlier as natural guardian. Beard v- an unobjectionable person the minor
Dean, 64 Ga. 258. As to a non resident has a right to have him appointed,
fatlier whose infant son of fourteen Adams's Appeal, 38 Conn. 304. And
prefers another person, see 4 Dem. 86. see next c. ; 1 Dem. (N. Y.), 154.
2 See Ham v. Ham, 15 Gratt. 74 ; 3 Dyer's Case, 5 Paige Ch. 534.
Dibble v. Dibble, 8 Ind. 307 ; Pitts v. * Lee's Appeal, 27 Penn. St. 229.
Cherry, 14 Ga. 594 ; Arthurs' Appeal, See also E. B. v. E. C. B., 28 Barb. 299.
1 Grant, 55; Sessions v. Kell, .30 Miss. But see Adams's Appeal, 36 Conn. 304,
458; Montgomery v. Smith, 3 Dana, showing that local statutes vary on
509 ; Palmer (•. Oakley, 2 Doug. 4-33. this point.
Tlie minor's choice under statute can-
446
CHAP, n.] APPOINTMENT OF GUARDIANS. § 303
of inferior ot appellate powers. Chancery guardians have been
appointed in this country, but not frequently ; and county
courts of probate jurisdiction at the present day generally act
in the first instance, issuing letters of guardianship, as well as
of administration, under their official seal. Thus, in New
England and most of the Western States, probate guardians are
appointed by the judge of probate ; in New York, by the
surrogate ; in New Jersey, by the orphans' court or the ordi-
nary ; in Pennsylvania and jMaryland, by the orphans' court ;
in Ohio, by the Court of Common Pleas with chancery powers ;
in California, by the district courts possessing a similar juris-
diction. In Virginia, North and South Carolina, the chancery
and county courts have exercised a sort of concurrent juris-
diction ; in others of the Southern States there are orphans'
courts; in Louisiana the civil law has prevailed.^
Two important elements enter into this jurisdiction over the
ward, — possession of property and actual residence within the
judicial limits. Property in the infant has usually been deemed
essential in chancery practice.^ But in a case which came
before Lord Chancellor Cottenham, in 1847, it was held that
the court should interfere on behalf of infants without property,
so as to award custody of the person. " I have no doubt about
the jurisdiction," was his emphatic language.^ What may be
called guardians of the person and estate in chancery are still
appointed, however, on the allegation of property. In the
United States letters issue to probate guardians, whenever
there is occasion for their appointment, the statute rarely pre-
1 See 2 Kent, Com. 226, 227, and a In re Spence, 2 Ph. 247. In a re-
notes ; Glascott v. Warner, 20 Wis. cent case where an infant grandchild
654 ; Herring v. Goodson, 43 Miss. 392 ; was born abroad of a natural-born
Duke V. State, 57 Miss. 229. For rules British subject, and the surviving par-
which prevailed in California vvliile un- ent was a French woman to whom
der Mexican rule, and the powers of objections were entertained and who
alcades over guardianship, see Braly v. had begun proceedings for gnardiansliip
Reese, 51 Cal. 447. As between a lira- in France, the English chancery court
ited guardian appointed by chancery appointed a guardian of the child, al-
and a general guardian appointed under though the infant was resident abroad
statute by the local county court, see and had no property in Great Britain.
Lake v. McDavitt, 13 Lea, 26. Willougliby Re, 30 "Ch. D. 324.
2 See Macphers. Inf. 103; supra,
§288.
447
§ 303 THE DOMESTIC RELATIONS. [PART IV.
scribing narrower limits to the judge's authority ; and as our
practice is simple and attended with little expense, the same
necessity for inquiry into the means of the infant does not
manifestly arise as in the case of chancery guardianship. But
statute and practice generally have reference to cases of
property.^
AVhere the ward is a non-resident, guardianship is frequently
recognized for the collection and preservation of his estate in
the jurisdiction ; and in such cases the court where the prop-
erty is situated, upon due notice, appoints some friend of the
minor on his behalf, requiring proper security; the existence
and situs of the property determining the right of jurisdiction.^
Far more important is the requirement of an actual resi-
dence within the jurisdiction ; especially in States where the
authority of courts with probate jurisdiction is strictly limited
to their respective counties. Letters of guardianship in the case
of a resident person obtained in the wrong county are invalid ;
it has been even held that they are null and void, and may be
collaterally impeached in any court.^ "Where the courts of two
or more counties have concurrent jurisdiction, as if a non-
resident has property lying in different places, the general prin-
ciple is that the court wliere proceedings are first commenced
retains jurisdiction.^ And letters once properly issued in the
proper county of residence are not revoked by the ward's
removal to another county within the same general jurisdiction.
Pending an application for guardianship in the county and
State where infants properly resided, the sister of the infants
removed them to another State, and letters were there granted ;
yet the former jurisdiction was not thereby divested.^ Where
1 People V. Kearney, 31 Barb. 430. authority as to non-residents is valid.
2 Clarke v. Cordis, 4 Allen, 466 ; Davis v. Hudson, 29 Minn. 27.
Rice's Case, 42 Mich. 528. See Hope ^ Ware v. Coleman, 6 J. J. Marsh.
V. Hope, 27 E. L. & Eq. 249 ; Re Hors- 198; Sears v. Terry, 26 Conn. 273;
ford, 2 Redf. 168 ; Neal v. Bartleson, Dormaii v. Ogbourne, 16 Ala. 759 ;
65 Tex. 478. This jurisdiction is often Munson v. Munson, 9 Tex- 109; Lacy
conferred by statute as to personal v. Williams, 27 Mo. 280; Herring v.
property. lb. So, too, as to real prop- Goodson, 4.3 Miss. 392 ; Duke v. State,
erty at the local situs, or to either real 67 Miss. 229. See § 308.
or personal property. Maxwell v. * Danneker Bf, 67 Cal. 643.
Campbell, 45 Ind. 360 ; Seaverns v. ^ Shorter v. Williams, 74 Ga. 539.
Gerke, 3 Sawyer, 853. Such statutory
448
CHAP. 11.] APPOINTMENT OF GUARDIANS. § 303
a new appointment becomes necessary, next to the inquiry
whether the party is a minor or otherwise legally subject to
guardianship at all, is the determination of his actual residence.
But, as just observed, property may give jurisdiction in some
cases where the ward resides abroad. Nor does non-jurisdiction
make everything void to the extent of relieving one from
liability who has acted as guardian and received property in
that capacity, since one may be a quasi guardian, and be
estopped by his own acts.^
The infant's place of residence at the time when a guardian!
is to be appointed determines the jurisdiction of the court.
Hence the county court which appointed the first guardian of
a ward may not always appoint his successor.^ And statute
jurisdiction is taken where minor orphans are in fact resident
in a State at the time, even if the legal domicile be elsewhere ;
the appointment giving at all events an authority to be recog-
nized within such State.^ The last domicile of a father is on
his death the domicile of his minor children, where application
for guardianship should primarily be made.'^ After the death
of both parents infants who take up their residence at the
home of a paternal grandparent and next of kin in another
State, will acquire such grandparent's domicile.^
The Court of Chancery exercises a large discretion. Its
authority over the persons and estates of infants, idiots, and
lunatics cannot be questioned elsewhere. No tribunal short
of the legislature can interpose a check upon its powers. But it
is different with probate courts. Their jurisdiction is founded
upon local statutes, maintained in derogation of the common
law, made subject to supervision of supreme tribunals, and
confined to the exercise of special powers sparingly conferred
From the fact that the English equity courts are unfettered in
their authority, chancery courts in this country incline to the
same direction ; hence they construe strictly the powers of the
1 McClure v. Commonwealth, 80 as to domicile, supra, § 2.30 ; post, c. 5.
Penn. St. 167 ; post, Part IV. Questions of conflicting jurisdiction
2 Harding v. Weld, 128 Mass. 587 ; will be considered, c. 4, post.
Brown v. Lynch, 2 Bradf 214. * Wells v. Andrews, 60 Miss. 373.
3 Ross V. Southwestern R., 53 Ga. * Lamar v. Micou, 114 U. S. 218.
514; Re Hubbard, 82 N. Y. 90. See
29 449
§ 304 THE DOMESTIC RELATIONS. [PART IV.
probate courts, while maintaining their own ; a matter of little
difficulty, since the supreme authority is in their hands, whether
in matters of probate, equity, or common law. With especial
strictness are the powers of probate tribunals scrutinized in
matters which do not grow out of the settlement of estates of
deceased persons.^
It may devolve on chancery to appoint guardians where testa-
mentary guardians decline or are disqualified to act. So where
there are two or more testamentary guardians and they fail to
agree.^ And it is the English rule that testamentary guardian-
ship does not go over upon the guardian's death, no successor
having been indicated in the will ; but chancery must supply
the vacancy.^ The same may be said of the courts in this coun-
try with probate jurisdiction.^
It would appear to be the general rule in this country, that
a probate or statute guardian cannot be appointed for a minor
where the minor is not within the jurisdiction or domiciled
there, and has no property therein ; and moreover, that bring-
ing an infant into the State by stratagem for the purpose of
giving a colorable jurisdiction will not avail.^
§ 304. Selection of Chancery or Probate Guardian. — Second.
In selecting the proper person as guardian, the judge is allowed
to exercise a liberal discretion, and his decision will not be dis-
turbed on appeal except for good and sufficient cause. Such is
1 See, for instance, as to insane per- 59 Mich. 624. Jurisdiction may also
sons and spendthrifts, Holden v. Scan- arise in a given case to appoint a guar-
lin, 80 Vt. 177 ; Sears ■;;. Terry, 26 dian hotii on the grounds of infancy
Conn. 273 ; Strong v. Birchard, 5 Conn, and insanity. King v. Bell, 36 Ohio
."57 ; Cooper v. Summers, 1 Sneed, 453 ; St. 460. The wife rather than the
Hovey v. Harmon, 49 Me. 269. And father is entitled to the control of an
see, as to minors, Re Hosford, 2 Redf. insane hushand of full age. Robinson
168. There are many local statutes v. Frost, 54 Vt. 105.
relating to the appointment of guar- ^ Macphers. Inf. 113; ih. 104.
dians over persons of unsound mind, ^ Bac. Ahr. Guardian & Ward, A.
whose consideration is foreign to our * See People v. Kearney, 31 Barb,
present purpose. See 89 Ind. 300 ; 90 430 ; Judge of Probate v. Hinds, 4 N. H.
Ind. 417 ; 53 Wis. 612, 625; 61 N. H. 464.
261; 58 Mich. 549. The jurisdiction ^ j^g Hubbard, 82 N. Y. 90. The
of a probate court to appoint such status of an Indian tribe does not in-
guardians is wholly statutory, and the validate jurisdiction in appointing a
formalities of the statute should be guardian. Farrington v. Wilson, 29
carefully observed. North v. Joslin, Wis. 383.
450
CHAP. IL] appointment OF GUARDIANS. § 304
the rule both in England and America.^ But this discretion is
not an arbitrary one ; it must be exercised in conformity with
certain fixed principles. And if the judge appoint without giv-
ing reasonable notice, so that parties interested have not a fair
opportunity to be heard upon the petition, his appointment may,
according to the better practice, be set aside on appeal at the
instance of an aggrieved party .^
Where the father of an infant is living, courts have ever been
unwilling to assume jurisdiction. Chancery, according to the
old rule, as we understand Blackstone to mean,^ could not ap-
point a guardian except for fatherless children. But the cor-
rectness of this principle was afterwards doubted ; and when
the rule became settled, in Lord Thurlow's time, that the father
could not give a valid receipt for his child's legacy, the necessity
of appointing a guardian to collect and hold personal property
was apparent.^ And since the substitution of chancery and
probate wards in practice for socage wards, guardianship of
the minor in the father's lifetime has frequently been sought
in the courts;^
But the English chancery reluctantly interferes with the
father's rights in such cases. Lord Chancellor Hart in 1828
refused to bestow the chancery guardianship of a minor upon
a third person, on the ground that the father is guardian of
his own children by paramount title and common right. And
while he admitted that the court should in all cases assume the
superintendence of the child's fortunes, he added, that during
the father's life no other could be placed over the child, except
under very peculiar circumstances, and even then rather as a
curator than a guardian.^ And the later decisions are to the
same effect ; as, for instance, Fijnns Case, where Vice-Chancellor
Bruce refused to make the mother a chancery guardian of her
1 Kayo's Case, L. R. 1 Ch. 387 ; ley, 4 Redf. 306. See 37 N. J. Eq. 245,
Battle V. Vick, 4 Dev. 294 ; White v. 25] ; 58 N. H. 15.
Pomeroy, 7 Barb. 640 ; Nelson v. Green, » 3 Bl. Com. 427.
22 Ark. 367. * Cooper v. Thornton, 3 Bro. C. C.
^ Underhill v. Dennis, 9 Paige, 202 ; 96 ; Dagley v. Tolferry, 1 P. Wms. 285 ;
Bowles V. Dixon, 32 Ark. 92. A ma- 2 Kent, Com. 220, and cases cited ;
ternal grandparent ought not to be ap- Lang v. Pettus, 11 Ala. .".7.
pointed without notice to the paternal ^ See ^x/)'7;Ve Bond,8L. J. Ch. 252.
grandparent, if there be one. Re Fee- *^ Barry v. Barrv, 2 Moll. 210.
451
§ 305 THE DOMESTIC RELATIONS. [PART IV.
children against the father's wishes, though satisfied that the
latter was unable to maintain them, and was such a person as
would not have been selected for the guardianship of another
person's children.^
The great difficulty which arises in the English chancery prac-
tice, where guardianship is sought by a stranger, namely, that
a father's custody of his own children is thereby disturbed, has
been frequently obviated in this country by statute. And in
many States, while the father is living, probate guardians are
appointed, whose powers, being limited to the infant's estate, do
not come in conflict with the parental right to the ward's per-
son.^ Yet in other States the probate courts can only grant
guardianship to orphans, that is, to fatherless children ; ^ and
where this is the case, chancery might assume jurisdiction in
an extreme case, though the father were living. A father who
is alive is not bound usually by proceedings for the guardian-
ship of his child, to which he was not a party* A minor child,
inheriting from his mother or otherwise acquiring property in-
dependently of the father, may at this day require a guardian
to collect and hold such property for him ; and while ordinarily
a father will be appointed guardian of his motherless child, such
appointment will be refused in American practice where it is
apparent that he is an unsuitable person and that the child's
best interests require some one else appointed, whether on the
father's nomination or adversely to him.^
§ 305. Selection of Chancery and Probate Guardians; Subject
Continued. — Most frequently the court's discretion is to be ex-
ercised, whether in chancery or probate appointments, in cases
where the child is fatherless, and moreover too young to nomi-
nate for himself. Who, then, shall be selected ? The mother,
1 12 Jur. 713. And see Rpence's ^ Heinemann's Appeal, 96 Penn. St.
Case, 2 Ph. 217; Ball v. Ball, 2 Sim. 112; Griffin v. Sarsfield, 2 Dem. 4;
35. 58 N. H. 15 ; Prime v. Foote, 63 N. H.
2 Mass. Gen. Sts. c. 109, § 4 ; Clark 52. In Heinemann's Appeal, supra, a
V. Montgomery, 23 Barb. 464. father neglected to provide proper
3 Boston V. Young, 7 J. J. Marsh, medical treatment for his wife and
501 ; Hall v. Lay, 2 Ala. 529. three children, all of whom died ; and
* Bowles f. Dixon, 82 Ark. 92; Tong a guardian of the surviving minor
V. Marvin, 26 Mich. 35. But see 58 children was appointed against his
N. 11. 15. wishes.
452
CHAP. II.] APPOINTMENT Or GUARDIANS. § 305
if living and competent for the trust, would appear to be the
most suitable person, unless remarried, and so in fact is she
considered in this country. But in English chancery practice
it is said that no great importance is attached to her rights ;
while undoubtedly she and the next of kin have together the
first claim.^ And it is improper to appoint the mother without
some information as to the father's family .^ On the other hand,
the court refuses to select guardians for infants residing with
their mother until she has indicated her own wishes.^
In this country, probate guardians of fatherless children are
appointed with more exclusive reference to the mother's choice,
and the next of kin are less favorably regarded. And it is not
uncommon to find guiding principles indicated by statute for
all cases. The American rule is clearly stated in a recent New
Jersey case: namely, that the mother, and, after the mother,
the next of kin of an infant under fourteen is entitled to prefer-
ence, and that such claim cannot be disregarded unless for some
satisfactory reason.* It is further stated, in this case, that a
greater latitude is allowed to the court, as between relatives
having no legal claim to the services of the child and the nat-
ural guardian ; and reasons which might be deemed insufficient
to bar the mother's rights might decide as between other rela-
tions.^ But the mother's immoral character since her husband's
death will fairly debar her.^
The leading consideration for the court should be the interest
and welfare of the child ; and this, which becomes almost the
1 Macphers. Inf. 112. 74; Lordr. Hough, 37 Cal 657. There
2 Cooke's Case, 6 E. L. & Eq. 47. may be a probate guardian appointed
8 Lockwood V. Fenton, 17 E. L. & over a cliild against the wislies of a
Eq. .90 ; In re Thomas, 21 E. L. & Eq. man and wife wlio have agreed in writ-
524. As to other relatives, see Mac- ing witli the mother to take care of the
phers. Inf. 112. ' child under certain stipulations. Clou-
* Albert v. Perry, 1 McCart. 540. cester y. Page, 105 Mass. 231. It is not
Access of the motlier to the child may proper for a court to appoint a mother,
be made a condition where a third per- and upon her failure to give bond vvitliin
son is appointed. 4 Dem. 295. And the limited time, appoint a stranger
see Read v. Drake, 1 Green Ch. 78; without notice to her. Weldon y. Keen,
Allen V. Peete, 25 Miss. 29 ; People 37 N. J. Eq. 251 ; cf. ib. 245.
V. Wilcox, 22 Barb. 178; Ramsay v. ^ Albert i'. Perry, 1 McCart. 540.
Ramsay, 20 Wis. 507 ; Good v. Good, ^ LeBlanc's Succession, 37 La. Ann.
52 Tex. 1; Leavel v. Bettis, 3 Bush, 546.
453
§ 305 THE DOMESTIC KELATIONS. [PART IV.
only rule of choice between distant kindred, may control even
the selection of the father himself.^ Hence, in a case where
children had been left with their grandparents for many years
with the consent of the father, who was a widower and a sea-
faring man, guardianship was refused to their uncle, though he
had been designated by the father on his death-bed.^ If the
child is fatherless, and the mother's manner of life would be
likely to exercise an unfavorable influence, she will not be ap-
pointed, nor will her wishes have much weight.^ Nor is the
appointment of an executor or administrator desirable, if a con-
flict of interests is thereby created.* Nor the selection of a
stranger, when the next of kin can be had, unless the parent
expressly desires it.^ Nor of one who holds adverse religious
opinions, though there is at this day far more toleration than
formerly on this point, and perhaps more in the United States
than in Great Britain.^ And the objection that a particular
appointment will subject the ward's estate to extraordinary
expense ought to be considered^ In general, it is the duty
of the court to regard the general character of the person who
applies for letters of guardianship ; the influence he is likely
to exert, and, if the estate be difflcult to manage, his business
qualifications.
On the other hand, no fanciful reasons should be allowed to
determine the selection of the court between distant relations.
The circumstance that the infant inherited the principal part of
his property through one line of the family is not to prejudice
his next of kin in the other.^ But the fact that he has always
been in the charge of his relatives on one side is entitled to
1 Bennett v. Byrne, 2 Barb. Ch. 216 ; Morehouse v. Cooke, Hopk. 226 ; Lady
Compton V. Compton, 2 Gill, 241 ; Sue- Teynliam i'. Lennard, cited 2 Atk. 315;
cession of Fuqua, 27 La. Ann. 271 ; Spaun v. Collins, 10 S. & M. 624.
Badenhoof v. Johnson, 11 Nev. 87; ^ Underbill ?'. Dennis, 9 Paige, 202 ;
Janes v. Cleghorn, 63 Ga. 335 ; 2 Dera. Macpliers. Inf. 113 ; Ex parte Whitfield,
43. 2 Atk. 315; VouUaire r. VouUaire, 45
2 Foster v. Mott, 3 Bradf. 409. Mo 602.
3 Albert v. Perry, 1 McCart. 540. ' Bennett v. Byrne, 2 Barb. Ch. 216.
* Crutchficld's Case, 3 Yerg. 336 ; 8 Underhill v. Dennis, tt Paige, 202 ;
Isaacs f. Taylor, 3 Dana, 600 ; Massin- Albert v. Perry, 1 McCart. 540. See
gale V. Tate, 4 Hayw. 30; Parker v. 58 N. H. I-'), as to disregarding the ex-
Lincoln, 12 Mass. 17. pectation of one who had left the child
5 See Sullivan's Case, 1 Moll 225; a ligacy.
454
CHAP, n.] APPOINTMENT OF GUARDIANS. § 306
weight.^ If children are already in a good home, this is a
reason why they should not be disturbed. But the mother's
consent to relinquish them to a certain relative is of little avail,
for it might have been extorted from her under pressure of
poverty.^ Although the prudent choice of a minor arrived at
fourteen may be almost conclusive, as we have already seen,
yet it would seem that while under that age his preferences are
entitled to no consideration. The separation of young children
from one another is to be avoided, unless in other respects quite
desirable.^
The father's testament constitutes a guardian ; but when the
appointment is too informal to take effect under the statute, as
constituting testamentary guardianship, a chancery or probate
guardian must be appointed. In such case, the choice thus in-
formally indicated carries great weight with the court.^ And
on general principle the death-bed wishes of the father are
considered by the court ; so those of the mother, in States where
the mother's choice is favored at all.^ Such wishes are not
conclusive upon the court; and yet they may sometimes be
sufficient to turn the scales.^
§ 306. Same Subject ; Appointment of Married Woman ; of
Non-Resideut, &c. — As concerns the right of a married woman
to be appointed guardian, there is doubt and uncertainty. The
dicta are apt to go one way and the decisions another ; doubt-
less out of judicial deference to the sex. Some hold that
married women are at common law capable of becoming guar-
dians ; but they draw their conclusions rather from the analogies
of administration than from positive authority in their favor.
When it is considered that chancery and probate guardians are
1 Albert v. Perry, 1 McCart. 540. 143 ; Watson v. Warnock, 31 Ga. 716;
2 lb. In re Turner, 4 C. E. Green, 433 ;
8 Marcellin, Matter of, 4 Redf. 299. Badenhoof v. Johnson, 11 Nev. 87. A
* Hall V. Storer, 1 Yo. & C. 556 ; fatlier upon hi.s wife's death placed the
Marcellin, Matter of, 31 N. Y. Supr. infant child in A. 'scare, and afterwards
207. died ; and A.'s claim was held inferior
5 Knott V. Cottee,2 Ph. 192 ; Kaye's to that of an aunt of the child. Cleg-
Case, L. R. 1 Ch. 387 ; Lady Teynliani horn v. .Janes, 68 Ga. 87.
V. Lennard, 4 Bro. P. C 302 ; s. c. cited ^ As to appointing a firm or a cor-
2Atk. 315; Bennett v. Byrne, 2 Barb, poration, see supra, § 300; Re Cor-
Ch. 216; Cozine v. Home, 1 Bradf. dova, 4 Redf. 66.
455
§ 306 THE DOMESTIC RELATIONS. [PART IV.
a modern creation, the ancient cases, from such species of guar-
dianship as are now extinct, are hardly worth looking after. It
is true there are several cases which sustain the acts of married
women while acting as guardians, or rather q^iasi guardians ; at
the same time clear precedents for their actual appointment are
wanting.^ It is lately held in the English chancery court, that,
while a married woman may be co-guardian with a man, her
sole appointment is improper.^ In spite of the liberal tendency
of the age, we conclude that while such guardianship would not
be deemed absolutely void, and is in fact sometimes sanctioned
without investigation, public policy is decidedly against the ap-
pointment. Not the least important objection is the inability
of married women to furnish proper recognizance and to mannge
trust property, without constantly encountering legal obstacles,
all the more troublesome from the present uncertainty of the
law of husband and wife. Hence the English rule has been,
on the marriage of a female guardian, to choose another in her
stead, on the ground that she is no longer sui juris, and has
become liable to the control of her husband ; while she is said
to be still at liberty to go before the master to propose herself
as her own successor.
Persons residing out of the jurisdiction will not usually be
appointed guardians, although one who was out of the State
might yet control from a distance ; for, it is said, there must
be some one answerable to the court.^ But if the sureties on
the guardian's bond reside within the jurisdiction and are pecu-
niarily responsible, is not some one answerable to the court ?
And might he not have an attorney within the jurisdiction
1 Wallis V. Campbell, 1.3 Ves. 517. Maxwell, 19 Ind. 88. Recent statutes In
This was the case of an illegitimate States now empower a married woman
child. As cited in Macphers. Inf. Ill, to serve as guardian. Schouler, Hus.
it might be considered authority for & Wife, appendix. And see Beard i;.
the appointment of married women as Dean, 64 Ga 248. A woman may be
guardians. appointed guardian of the person and
2 In re Kaye. L. R. 1 Ch. 387. See estate of her child, although slie has
Macphers. Inf. Ill ; Anon., 8 Sim. 346 ; married again and lives with her new
Gornall's Case, 1 Beav. 347. See, fur- husband. Hermance Re, 2 Dem. 1,
ther, Jarrett v. State, 5 Gill & Johns overruling Holley v. Chamberlain, 1
27 ; Palmer v. Oakley, 2 Doug. 4:33 ; Redf. 333.
Farrer v. Clark, 29 Miss. 195; Kettle- ^ Logan v. Tairlee, Jacob, 193.
tas V. Gardner, 1 Paige, 488 ; Ex parte
456
CHAP. II.] APPOINTMENT OF GUARDIANS, § 307
answerable for process, under statute ? The cases, however, are
rare where such an appomtment would be advantageous to the
ward for business reasons ; and hence others are usually chosen,
both in chancery and probate. In some of the United States,
the appointment of non-residents is prohibited by statute ; and
even without such prohibition the court is justified in withhold-
ing letters of guardianship at discretion, where the petitioner is
beyond the reach of State process.^ But the person selected
need not reside within the jurisdiction of the county court
making the appointment. Where infants are domiciled abroad,
some one at home will be appointed, if a guardian is required,
even though the father wishes it otherwise.^ Exceptions to
this rule have been made in strong cases, and a non-resident
guardian appointed.^
A certain appointment may be objectionable because of prop-
erty interests adverse to those of the minor. Statutes some-
times interpose ; as, for instance, in rendering ineligible the
administratrix of an estate in which the minor is interested.*
The nomination of some suitable third person as guardian by the
party having a prior right carries weight ; but one who has thus
procured another's appointment cannot claim letters for himself.^
§ 307. Method of appointing Guardian ; Procedure. — Third.
The usual practice in chancery is for the court, as soon as the
petition is presented, to make an order for a reference to a
master to approve of a proper person for the guardianship. For
this purpose, the master is attended by all proper parties ; and,
after a full hearing, he makes his report, in which he mentions
the infant's age and fortune, the evidence and legal grounds on
which his approval of the guardian is based, and the mainte-
nance proper for the child. The Vice-Chancellor confirms or
varies the report at his discretion, and then makes the appoint-
ment. From his decision appeal lies to the full court.^
1 Finney v. State, 9 Mo. 227. There non-resident alien may be precluded,
is no such prohibition in Maine. Berry Re Taylor, 3 Redf. (N. Y.) 259.
V. Johnson, 5.3 Me. 401. * Scobey v. Gano, 35 Ohio St. 550;
'^ Stepiiens v. James. 1 M. & K. 627 ; supra, § .305.
Lethem v. Hall, 7 Sim. 141. 8 Kaim v. Israelson, 62 Tex. 221.
3 Daniel v. Newton, 8 Beav. 485 ; ^ Macphcrs. Inf. 106, 107, and cases
In re Thomas, 21 E. L. & Eq. 524. A cited; 2 Kent, Com. 227.
457
§ 307 THE DOMESTIC RELATIONS. [PART IV.
The guardian thus appointed, if guardian of Ihe person and
estate, is required to enter into a recognizance, with sufficient
sureties, to account regularly or whenever called upon by the
court. But, according to the modern English practice, guar-
dians of the person and not of the estate are exempted from
this requirement.^
In some cases, guardians are appointed by the court without
reference to a master. Thus, where the father applies, or the
infant above fourteen makes a selection, the court acts without
reference, out of regard for their special privilege.^ And where
the property of the infant is very small, the same favor has been
granted, in order to save legal expense to the estate.^ The
child should usually be present at the hearing ; but, in a recent
Irish case, the court dispensed with the requirement, on evi-
dence that the child was less than a month old and of delicate
health.*
Our American practice in the appointment of probate guar-
dians is usually more simple. Petition is presented by the
person desiring the appointment, whereupon a citation is issued,
for all parties interested to appear on a certain court day. The
judge, upon the day specified, after a summary hearing, appoints
the guardian, and issues letters of guardianship upon filing bond
with proper security. Appeal may be taken within a limited
time by any person aggrieved, and the tribunal of last resort
then hears the parties, determines the choice, and makes a final
decree, — to which the lower court conforms and issues letters
of guardianship accordingly. The infant, if under fourteen, is
rarely produced in court, nor does the judge make an order of
reference.^
1 Macphers. Inf. 107, 108 ; 2 Kent, 31 Ga. 716. Next of kin may appeal.
Com. 227. TafE v. Hosmer, U Midi. 249. And
'^ Supra, §§ 301,304; Macphers. see /?e Feeley, 4 Redf. 306. The Geor-
Inf. 78, 109. gia code requires appointment made in
3 Er parte. Bond, 11 Jur. 114. open and regular court. 72 Ga. 125.
* Stutely V. Harrison, 1 Ired. Eq. As to the requisites in appointing
256; 13 Jur. 800. And see Benison v. guardian for an insane person, see An-
Worsley, 15 E. L. & Eq. 317. gell v. Probate Court, 11 R. I. 187.
5 For practice in particular States, Where the intended ward is of full
see local statutes ; also Smith's (Mass.) age, notice to him is the only notice
Prob. Practice ; Comst. Dig. ; Reese, needful, unless the statute prescribes
(Ga.) Manual; Watson v. Warnock, otherwise. Hamilton (-•. Probate Court,
458
CHAP. 11.] APPOINTMENT OF GUARDIANS.
§ 308
§ 308. Effect of Appointment ; Conclusiveness of Decree, &c.
— Fourth. The appointmeut of a chancery guardian is of itself
an act exercised by the court of highest authority, in such mat-
ters. The appointment cannot be impeached elsewhere, nor set
aside by a common-law tribunal. The court which creates the
guardian superintends his acts and removes him if necessary.
Such is the nature of chancery jurisdiction wherever it exists.^
But the effect of appointments made by probate authority is not
the same. In general, the same principles apply as in grants
of administration ; probate jurisdiction being much the same,
whether over the estates of deceased persons or of infants. For
fraud or excess of jurisdiction, letters of probate guardianship
may be attacked collaterally ; not otherwise. But a person sued
in the common-law courts cannot defend on the ground that the
guardian is unsuitable for his trust ; the letters of guardianship
sutficiently disprove it ; they are the guardian's credentials of au-
thority everywhere, and, if improperly issued, should be revoked
by the court which issued them.^ The later and safer tendency,
9 R. I. 201. But statutes differ on this
point. Morton v. Sims, 64 Ga. 298.
A minor entitled to his own choice
may appeal if that clioice is not re-
spected by the court. Adams's Appeal,
38 Conn.' 304 ; supra, § 301. Where
appointment is made on the ground
of estate, the ward being non-resident,
statute requirements as to notice must
be strictly pursued, or all subsequent
proceedings may be rendered void.
Seaverns v. Gerke, 3 Sawyer, 35.3.
1 Macphers. Inf. 119.
2 Speight V. Knight, 11 Ala. 461 ;
Kimball v. Fisk, 39 N. H. 110 ; Mathews
V. Wade, 2 W. Va. 464; Warner v.
Wilson, 4 Cal. 310. As to the effect of
defective notice in probate appoint-
ments, see Davison v. Johonnot, 7
Met. 388; Breed v. Pratt, 18 Pick. 11-5 ;
Brigham v. Boston &c. R. H. Co, 102
Mass. 14; Cleveland v. Hopkins, 2
Aik. 304 ; Redman v. Chance, 32 Md.
42; Chase v. Hathaway, 14 Mass. 222;
People r. Wilcox, 22 Barb. 178 ; Palmer
V. Oakley, 2 Doug. 433 ; Sears v. Terry,
26 Conn. 273 ; Gronfler v. Puymirol, 19
Cal. 629. As to other informalities,
see State v. Hyde, 29 Conn. 564; Lee
V. Ice, 22 Ind. 384. The letter of guar-
dianship need not recite the mode and
particulars of nomination, but is in the
nature of a certificate or commission.
King V. Bell, 36 Ohio St. 460; Burrows
V. Bailey, 34 Mich. 64. A guardian
appointed by the probate court of a
State in rebellion must be reappointed
when the rightful government is re-
established. Troy V. EUerbe, 48 Ala.
621.
Where there was jurisdiction for
appointment both on grounds of lunacy
and infancy, after lapse of time, pre-
sumption is favored that the court
made the appointment cover both
grounds, or performed its full duty.
King V. Bell. 36 Ohio St. 460. Here a
new bond was taken after the ward ar-
rived at full age. Under the Georgia
code an appointment made in cham-
bers by the judge is void. 72 Ga. 125
Cf . 65 Iowa, 629.
459
§ 309 THE DOMESTIC RELATIONS. [PART IV.
liere, as in grants of administration, is to sustain the court's
decree against indirect and collateral attacks.^
The decree of the court appointing a guardian is prima facie
evidence of the ward's disability ; ^ and is even held conclusive
in some cases. It would be unreasonable to compel the guar-
dian of an insane person or spendthrift to furnish proof of his
ward's condition in every collateral suit on his behalf, and to
encounter new investigations of facts already established, con-
cerning which men's minds greatly differ. But the prima facie
evidence of infancy is generally simple and easily obtained.
The authority of his guardian turns upon a simple question of
fact, — the date of birth. And while we apprehend that the
recitals contained in letters of guardianship afford prima facie
proof on this pomt, in all contests involving the guardian's
authority, the presumption thus raised must be very slight,
since it is common to issue letters of probate guardianship upon
the mere allegation of infancy in the petition and without
special proof.^
One who has been appointed guardian and acted as such, can-
not deny the jurisdiction of the court which appointed him in
a collateral suit.* If he ascertains that his appointment was
without jurisdiction, he should surrender his letters at once and
cease to act. But, as we shall presently see, a liability may
exist from the fact that one irregularly or wrongly appointed
undertakes the office of guardian.^
§ 309. Civil-Law Rule of appointing Guardians. — The prin-
ciples of the civil law, as later adopted in Holland, France, and
Spain, with reference to the jurisdiction and method of appoint-
ing guardians, differ not greatly from ours. The jurisdiction
competent to make the selection was that of the domicile of the
minor, or in which his property was situated. Under the
French Code, a family council is called together at the instance
1 See § 303 J Schouler, Executors, Fox v. Minor, 32 Cal. Ill; State v.
§ 160. Lewis, 73 N. C. 138.
2 White V. Palmer, 4 Mass. 147. ^ See (junsi Guardian, post, c. 4. A
* Leonard v. Leonard, 14 Pick. 280. general appointment will be construed
See 2 Greenl. Evid. §§ 3(53-368. as an appointment with reference to
* Thurston i'. Holbrook's Estate, 81 certain property only, when otherwise
Vt. 354 ; Hines v. MuUins, 25 Ga. 696 ; it would not lie valid. Davis v. Hud-
460
son, 29 Minn. 27.
CHAP. III.] TERMINATION OF GUARDIAN'S AUTHORITY. § 311
of the parties interested, and nominates a suitable person or
persons to take the trust, where the children are orphans and
not otherwise provided for ; and these persons, when they are
approved by the judge, take an oath well and faithfully to dis-
charge their trust and complete the necessary qualifications.
In Louisiana, the selection is made by the family council in a
similar manner.^
CHAPTER III.
TERMINATION OF THE GUARDIAN'S AUTHORITY.
§ 310. How the Guardian's Authority is terminated. — Guar-
dianship lasts until the end of the period for which it was
instituted. But it may be sooner terminated by the death or
marriage of the ward, or by the death, resignation, removal, or
supersedure of the guardian himself ; or, if the guardian be a
female, by her marriage. These topics will be considered in
order.
§ 311. Natural Limitation; Ward of Age, &c. — As the rela-
tion of guardian and ward usually exists for merely temporary
purposes, it is plain that, when those purposes are fulfilled,
the trust must terminate. The object of guardianship, in the
case of infants, is fulfilled when the infant becomes of age,
for he is then free and competent, imder the law, to transact
his own business and control his own person. No guardian,
therefore, of an infant, whether a socage, natural, testamen-
tary, chancery, or probate guardian, can act in such capacity
after the ward is twenty-one years old or has reached majority ;
but should present his account and settle with the late ward.^
1 3 Burge, Col. & For. Laws, 938- to guardianship are sometimes explicit
943; 2 Kent, Com. 231. on this point. Bourne v. Maybin, 3
2 1 Bl. Com. 461, 462, Harg. n. ; 2 Woods, C. C. 724 ; Stroup v. State, 70
Kent, Com. 221-227. Statutes relative Ind. 495.
461
§ 311 THE DOMESTIC RELATIONS. [PAUT IV.
Termination thus of the guardianship is equivalent to the
discharfje of the guardian, as various codes are construed. ^
But the natural limitation of the guardian's authority may
be even sooner, if derived from testamentary appointment.
For the testator may designate a shorter period or some par-
ticular event which shall determine the relation. Thus, if he
appoints his wife to be guardian until her remarriage, her trust
terminates on marrying again.^ And if no successor was in-
dicated in the will, a chancery or probate appointment must
supply the vacancy.^
The legal authority of guardians in socage also terminated,
strictly speaking, when the infant became fourteen.* So did
that of guardians for nurture, as distinguished from those by
nature.^ This was because the ward was recognized as partially
qualified to act for himself, having passed through the period
of nurture. He was then allowed to elect a guardian.^ Still
the guardianship continued effectual during minority in both
cases, unless a new choice was made by the ward.'' But no
guardians in socage, for nurture, testamentary, or by judicial
appointment, were ever rendered devoid of power by the mere
fact that the infant had passed the period of nurture. An
anomalous exception is found in Ohio, where it has been held
that probate guardianship wholly ceases when the ward reaches
twelve if a female, or fourteen if a male, and that a new
appointment must then be made.^ This rule is, however, one
of statutory construction ; and while the ward, on arriving at
fourteen, may have the statute right to choose a new probate
guardian, the general rule is that such guardian should be first
designated, judicially approved and qualified before the former
guardian can be considered as discharged from his trust.^
1 Tate V. Stevenson, 55 Midi. 320. "^ Rex v. Pierson, Andr. 313 ; Men-
2 Selby V. Selby, 2 Eq. Ca. Ab. 488 ; des v. Mendes, 3 Atk. 624. And see
Holmes v. Field, 12 111. 424; Corrigan Macpliers. Inf. 41, 65; Byrne v. Van
V. Kiernan, 1 Bradf. 208. Iloesen, 5 Johns. 66.
8 Macphcrs. Inf. 104, and cases cited; ^ Perry v. Brainard, 11 Ohio, 442;
supra, §§ 287, 290, 303. Maxson v. Sawyer, 12 Ohio, 195. See
* 1 Bl. Cop-.. 461, Harg. n. ; 2 Kent, Dibble r. Dibble, 8 Ind. 307 ; Matter of
Cora. 222. Dyer, 5 Paige. 531.
5/5. 9 Bryce i'. Wynn, 50 Ga. 3.32 ; aupra,
c 1 Bl. Com. 462, Harg.n.; and see § 301.
ch 1, supra.
462
CHAP. III.] TEKMINATION OF GUARDIAN'S AUTHORITY. § 313
No more precise limit can be assigned to the authority of
guardians over insane persons and spendthrifts, than that of
the ward's necessities. When he becomes sufficiently restored
to reason, or is otherwise fit to control his own person and
estate, this guardianship ceases ; for the purposes of the trust
are felt no longer. But a period so difficult to fix should be
judicially determined ; for which cause a formal discharge from
guardianship is to be sought and obtained, and meantime the
guardian's authority will continue.^
§ 312. Death of the Ward, — Death of the ward necessarily
terminates guardianship. And after the ward's death the
guardian's only duty is to settle up his accounts and pay the
balance in his hands to the ward's personal representatives,
whereupon his trust is completely fulfilled.^
§ 313. Marriage of the Ward. — The lawful marriage of any
ward, whether male or female, must necessarily affect the rights
of the guardian So far as the ward's person is concerned, there
can be no question that the guardianship ends. Marriage is
paramount to all other relations, and its proper continuance
being inconsistent with guardianship of the person, the latter
yields to it, whatever may be the sex of the ward. But as to
the estate, the rule, in view of late married women's statutes,
is not so clear. If, however, a male ward marries a female,
whether she be minor or adult, his guardian retains power over
his estate, as before, until he becomes of age.^
Hence arises a difficulty where a male and female ward
marry, both being minors and having estates in the hands of
their respective guardians. Does the husband, though under
age, take all the rights of an adult husband ? Or does the
1 Dyce, Sombre's Case, 1 Phil. Ch. ceased ward's estate. Beavers v. Brew-
437 ; Hovey v. Harmon, 4'J Me. 260 ; ster, 02 Ga. 574.
Wendell's Case, 1 Johns. Ch. 600; 3 Reeve, Dom. Rel. 328; 2 Kent,
Kimball v. Fisk, 39 N. H. 110; Chase Com. 226; Bac. Abr. Guardian (E) ;
I'. Hathaway, 14 Mass. 222; Hooper ??. Eyre v. Countess of Shaftesbury, 2 P.
Hooper, 26 Mich. 435 ; 55 Mich 320. Wms. 103 ; Mendes v. Mendes, 3 Atk.
The issue here is whctlier the ward has 619 ; Tb. 1 Ves. 89 ; .Tones v. Ward, 10
sufficiency of reason to manage his own Yerg. 160. The guardian of an infant
estate. Cochran v. Amsden, 104 Ind. husband is clothed with the husband's
282. power "of reducing to possession. Ware
- In some States the guardian is v. Ware, 28 Gratt. 670. And see supra,
charged with administering his de- §§ 56, 71.
463
§ 313 THE DOMESTIC EELATIONSo [PART IV.
wife's estate remain in keeping of her guardian until the hus-
band is old enough to control it in person ? The better opinion
is that it goes to the husband, whatever his age. The inevitable
consequence is that the husband's guardian must take it from
the wife's guardian, and hold both estates during minority.
This seems an awkward arrangement, but it is nevertheless the
lawful one. More troublesome would be a case under the
recent statutes in this country relative to married women, con-
cerning which we do not find an important decision. But it
seems the technical rule applies, as before, to the detriment of
the female ward's interests. It might be well to declare by
statute that the wife's guardian shall continue to manage her
estate during her minority.^
The marriage of the female ward, it is said, does not, ipso
faxto, determine the authority of her guardian over her estate.
Hence an order of court, transferring the custody of the prop-
erty to the husband, is first necessary ; to which order the hus-
band will be entitled upon motion. Such is the rule declared
in New York.^ But while in England the Court of Chancery
never appoints a guardian for a female infant after marriage,
neither does it discharge an order for a guardian because of
marriage ; because, as Mr. Macpherson thinks, the marriage of
a female, if valid, supersedes guardianship, of its own force.^
Probate wards in this country are frequently married, and their
guardians settle their accounts without order of court or revoca-
tion of letters, on the supposition that the marriage ipso facto
puts an end to their authority. In some recent cases of alleged
trespass on a female infant's lands, it has been ruled that the
adult husband succeeds to the place of her guardian, all other
guardianship ceasing at her marriage.^ And it is held that a
female infant's guardian is not responsible to her for money
which was hers, and which he has paid over to her adult hus-
band, in good faith, without any notice or presumption of her
1 See Keeve, Dom. Rel. 328 ; 2 Kent, Ga. 467 ; Anon. 8 Sim. 346 ; Armstrong
Com. 226 ; Anon. 8 Sim. 346. v. Walkup, 12 Gratt. 608.
2 Wliitalccr's Case, 4 Johns. Ch. ^ Macphers. Inf. 113, citing Roach
376. But see contra, Jones v. Ward, v. Garvan, 1 Ves. 160 ; 8 Sim. 8.36.
10 Ycrg. 160 ; Nicholson v. Wilborn, 13 * Porch v. Fries, 3 C E. Green, 204 ;
Bartlett v. Cowles, 15 Gray, 445.
464
CHAP. III.] TERMINATION OF GUARDIAN's AUTHORITY. § 315
non-concurrence.i The local statute is sometimes explicit
enough to relieve one of doubt on the main question.^
§ 314. Death of the Guardian. — Guardianship is terminated
by the death of the guardian. But the ward does not thereby
necessarily become free, for a successor in the trust continues
to control him. The executor or administrator of the guardian,
as such, has no authority ; for guardianship is a personal trust
and not transmissible. But he should close the accounts of
the deceased guardian in court, and pass the balance over to the
successor. This successor is the person next indicated in the
will appointing testamentary guardians, or the survivor of joint
guardians, or some one appointed in chancery or probate to fill
the vacancy, as the case may be.^
§ 315. Resignation of the Guardian. — The office of a guar-
dian was regarded as something so honorable at the common
law that it could not be easily refused, much less resigned.
Natural guardians, of necessity, could not resign. We have
seen, in another connection, how far the natural guardian may
practically surrender his children's custody, by allowing others
to adopt them, by placing them in a charitable institution, and
the like ; which is the only sense in which this guardianship
may be considered as voluntarily transferred. So guardians in
socage, being designated by the law, could not in strictness
resign ; if they could shift their authority at all, it must have
been by assignment. There is reason to believe that, before
the statute of Marlbridge,^ they could assign, but only to the
1 Beazley v. Harris, 1 Bush, 533. 658. Wlien a guardian, whose author-
See, as to the wife's remedies, Story v. ity has terminated on the ward's arrival
AValker, 6i Ga. 614. at majority, becomes administrator of
2 Some local codes declare that the ward's estate, the ward dying soon
when the female ward marries an adult after and before the guardiansliip ac-
the guardianship shall cease. Bourne counts are closed, his liability for the
V. Maybin, 3 Woods C. C. 724 ; Kid- property is that of administrator. Hut-
well ('. State, 45 Ind. "27 ; State v. Joest, ton v. Williams, 60 Ala. 107. See poxt,
46 Ind. 235. In Alabama the married c. 9, as to marriage of a ward. As to
ward may call her guardian to account, settlement of a guardian's account by
Wise V. Norton, 48 Ala. 214. See, as his administrator, see 66 Ala. 283. Or
to adult husband's settlement, 60 Ind. where the guardian died without mak.
41. ing a settlement, and long after the
3 Co. Litt. 89 ; Bac. Abr. Guardian ward's minority. 65 Cal. 228.
(E) ; Connelly ('. Weatherly, 33 Ark. * 52 Hen. III. c. 17.
30 465
§ 315 THE DOMESTIC RELATIONS. [PART IV.
extent of placing the ward's body in custody of another. In
later times, no assignment whatever has been permitted. For,
as Lord Commissioner Gilbert observed, guardianship in socage
is an interest, not of profit, but of honor, committed to the next
of kin, inherent in the blood ; and therefore not assignable.^
The resignation of a testamentary guardian is not, as a
rule, permitted. In 1752 the guardians of the young Earl of
Spencer, who was then in his eighteenth year, petitioned the
Court of Chancery that they might be discharged from their
trust, as he was then going abroad on his travels, and would
not be under their care. Lord Hardwicke (as the reporter says)
refused it with some warmth, as a thing which had never been
done at the request of the guardians themselves ; and added,
that, if they would not continue to act in the trust, as they
had accepted it, he should compel them. But afterwards, at
the importunity of counsel, finding that the mother and the
infant also acceded to the request, he yielded so far as to allow
a petition to be filed on behalf of the infant, upon which he
made an order that the care and direction of the infant's
education and person should be committed to two near rela-
tives until further order, and that the allowance for his main-
tenance and education should be paid to them. But in doing
so the Lord Chancellor declared that while the special circum-
stances of this case justified his action, he would not in general
comply with such petitions, nor should this case be drawn into
precedent. The court, he added, must take care of the infant,
even though it did not punish the guardian for not doing so.^
Though this was a case of testamentary guardianship, we
presume the rule to be equally strict, or nearly so, in case of
a chancery guardian. In either instance the court can make
an order, as deemed best for the infant's interests. There need
be no summary removal. Chancellor Kent, in Ex parte Crumb,
claimed that chancery could doubtless discharge or charge a
guardian, even if appointed by a surrogate ; but that in the case
1 Gilb. Eq. Rep. 175. For full dis- 2 Spencer v. Earl of Chesterfield,
cussion, see Macphers. Inf. 25-27 ; Co. Ambl. 146.
Litt. 88 6, Harg. n. 13, and authorities
cited.
466
CHAP. III.] TERMINATION OF GUARDIAN'S AUTHORITY. § 316
of a testamentary guardian there should be very special reasons
for interference. He refused here, however, to make any
change, there being no special cause shown. ^
It is now frequently provided by statute that probate guar-
dians and other trust officers may, in the discretion of the
court, be allowed to resign. But in absence of such legislation
it would appear that no such guardian can resign as a matter of
right ; nor can the probate court legally accept his resignation
and appoint a successor. Yet it is held in Illinois that, under
a statute which permits the judge " to remove guardians for
good and sufficient cause," he may consider resignation a suffi-
cient cause, and thereupon discharge the guardian.^ There is
something harsh and offensive in the removal of a guardian
from office. Moreover, numerous unforeseen emergencies may
arise, so as to render the continuance of the trust improper ; as
if the guardian should become a confirmed invalid, or make
himself obnoxious to the ward and his relations, or display a
want of prudence in managing the estate not inconsistent with
good intentions nor sufficiently gross to justify a court in re-
moving him. He might be fully aware of the advantage of a
change to all parties concerned, and might desire to be relieved,
provided he could withdraw with honor, and without submitting
to a humiliating investigation of petty and insufficient grounds
of complaint. This opportunity is afforded in allowing him to
resign. So, too, the guardian's convenience, apart from all other
considerations, might lead him to withdraw. And further, as
one has observed of testamentary appointees, " it can never be
for the infant's benefit to continue him in the care of a negligent
or reluctant guardian."^
§ 316. Removal and Supersedure of the Guardian. — The
chancery court may undoubtedly remove all guardians of its
1 Ex parte Crumb, 2 Johns. Ch. 4-39. diansViip of a lunatic). Where a guar-
See 2 Kent, Com. '227. dian tenders his resitrnation, tlie more
■^ Young V. Lorain, 11 111. 62i. See correct form of judicial order would be
Pepper v. Stone, 10 Vt. 427. that the resignation is accepted ; yet it
3 Macphers. Inf. 128, commenting is held that the probate court may
upon Spencer v. Earl of Chesterfield, without error enter an order removing
supra. As to a guardian's resignation, such guardian. Brown v. Huntsman,
.«ee King v. Hughes, 52 Ga. 600 (guar- 32 Minn. 466.
467
§ 81G THE DOMESTIC RELATIONS. [PART IV.
own appomtment, and substitute others at discretion for proper
cause. This rule extends still further ; for, according to Ameri-
can authority, chancery may remove all guardians, whether
appointed by the court itself, by probate tribunals, by testa-
ment, or even by express act of the legislature, whenever the
guardian abuses his trust or the interests of the ward require it.^
This statement is somewhat too sweeping, so far as the English
courts are concerned. So, too, probate tribunals are authorized
in most if not all of the States to remove guardians of their own
appointment on good and sufficient cause.^
And as to two persons, or sets of persons, cannot at the same
time hold the same trust, it follows that one guardian must be
removed, or a vacancy otherwise created, before the court can
make a new appointment. This principle, apparently simple,
has sometimes been overlooked ; when, for instance, a court has
issued new letters without revoking the old, or seeks to super-
sede a testamentary by a probate guardian. The appointment
of a new guardian does not of itself terminate the authority of
one previously chosen. It is an act without jurisdiction, and
void. But natural guardians need not be formally removed,
nor guardians in socage. The rule applies only to guardians
testamentary and guardians by judicial appointment, who hold
by a higher authority than either of these.^
If a guardian does not behave to the satisfaction of the Court
of Chancery, orders regulating his conduct are frequently made
upon him ; and if any such steps be taken as to induce sus-
picion that the infant will suffer by the conduct of the guar-
dians, the court will interpose.^ This is the English rule as to
1 Cowls ?'. Cowls, 3 Gilin. 435. See order of removal, where the court may
^,r /ia?-fe Crumb, 2 Johns. Ch. 439; Dis- remove at its own instance, is not in-
brow V. Hensliaw, 8 Cow. 349. A tes- valifl because based on a defective pe-
tamentary guardian, in many States, tition. Cherry v. Wallis, 65 Tex. 442.
may now be removed on the same ^ Bledsoe v. Britt, 6 Yerg. 458;
grounds which warrant the removal of a Grant v. Wiiitaker, 1 Murph. 231 ; Kob-
probate guardian. Damarell v. Walker, inson v. Zollinger, 9 Watts, 169 ; Fay
2 Redf. 198. But sound discretion v. Hurd, 8 Tick. 528 ; Thomas v. Bur-
should be used. Sanderson >\ Sander- rus, 23 Miss. 550 ; 2 Ch. Cas. 237 ;
son, 79 N. C. 369. Morgan v. Dillon, 9 Mod. 141 ; Copp v.
2 Simpson v. Gonzales, 15 Fla. 9; Copp, 20 N. 11.284.
Re Clement, 25 N. J. Eq. 508; Mc- « Roach r. Garvin, 1 Ves. 160; Duke
Phillips V. McPhillips, 9 R. I. 536. An of Beaufort v. Berty, 1 P. Wms. 705.
468
CHAP. III.] TERMINATION OF GUARDIAN'S AUTHORITY. § 316
guardians in general. But in this country probate guardianship
is usually determined for misconduct by a summary removal.
There can be no removal of a probate guardian without cause
shown. ^ Courts of chancery are equally bound to observe this
principle ; but their discretion is absolute. Some of our codes
make it imperative that a statutory ground exist for removing
one guardian and appointing another ; ^ and where a statute
enumerates the grounds of removal, grounds not enumerated
authorize no removal.^ A mere stranger cannot apply to have
a guardian removed ; it must be a party in interest.* Nor can
one who has been properly removed, though the mother herself,
claim any right of recommending a successor .°
Among the causes which have been deemed sufficient for the
removal of a guardian are these : Appointment to the trust
without proper notice to other parties interested." Gross and
confirmed habits of intoxication." Any breach of ofiicial duties
amounting to misconduct.^ Failure, after being ordered to do
so, to file inventory or accounts as required by the terms of his
trust.^ Employing the ward or using the ward's funds for the
guardian's own advantage, to the ward's detriment ^^ Failure
to support the ward with income ample for doing so, especially
if the guardian be the father. ^^ Abandonment of the trust. -^^
1 Whitney v. Whitney, 7 S. & M. 740. * Colton v. Goodson, 1 How. (Miss.)
2 2 Dem. (N. Y.), 439 ; 4 Dem. 153. 295.
Mere delay or omission to file an in- 5 Hamilton v. Moore, 32 Miss. 205
vcntory or account which involves no ^ Morehouse v. Cooke, Hopk. 226;
injury is insufficient ground for re- Ramsay v. Ramsay, 20 Wis. 507.
nioval ; the guardian should first be ' Kettletas v. Gardner, 1 Paige Ch.
ordered at least to file them. 2 Dem. 488.
439; Johnson y. Metzger, 95 Ind. 307. ^ Barnes v. Powers, 12 Ind. 341;
Nor misconduct of others, at which the Sweet v. Sweet, Speers Eq. 309;
guardian himself did not connive. 4 O'Neil's Case, 1 Tuck. (N. Y. Surr.)
Dem. 153. 34.
Though adverse interest, such as ^ Kimmel v. Kimmel, 48 Ind. 203 ;
being executor or administrator of an Diokerson v. Dickerson, 31 N. J. Eq.
estate in which the ward was inter- 652. See 2 Dem. 439. The failure to
ested, is an objection to appointing one file an inventory may be justifiable. 95
guardian, it is not, after long lapse of Ind. 307.
time, to be set up equally as a cause of i° Suavely v. Harkrader, 29 Gratt.
removal. DuU's Appeal, 108 Penn. St. 112.
604. " Re Swift, 47 Cal. 429.
3 Kahn v. Israelson, 62 Tex. 221 ; 2 12 Lefever i-. Lefever, 6 Md. 472.
Dem. 430.
469
§ 317 THE DOMESTIC RELATIONS. [PART IV.
Criminal conviction.^ Ignorance or imprudence on the part of
the guardian, wliereby the ward's interests suffer.^ Waste of
the ward's estate.^ But not insolvency alone ; though it is
otherwise where one has been adjudged a bankrupt, or is guilty
of fraud.* Nor is intermeddling with the estate before qualifi-
cation as guardian a ground for removal, if in good faith and
by advice of counsel.^ In Indiana, as the statute provides, one
can be displaced for unfaithful performance of the trust or
insufficient security.^ Guardians may in some States be re-
moved wherever it will be for the ward's interest.'' It appears
that there may be a combination of circumstances to justify the
removal.^ " Improper conduct," in respect of the care of the
property or of the ward's person, is sometimes the statute rule.^
And in Massachusetts such conduct of a guardian as tends to
alienate his infant ward's affections from the mother, who is a
person of good character, will justify his removal, notwithstand-
ing the mother may have remarried. ^"^ Different local codes will
be found to prescribe varying rules in this respect.
Eeligious opinions were formerly made a test of the guar-
dian's capacity to act. Such conflicts seldom arise at the pres-
ent day. It was held in a Pennsylvania case, a few years ago,
that difference of belief on religious subjects constitutes no
cause for a guardian's removal, if no harsh or unfair means
have been used to erase the impressions left by the parents on
the child's mind.^^
§ 317. The Same Subject. — For the same reason that non-
residents are held incompetent for appointment, guardians must
surrender their authority when they move out of the jurisdic-
tion, or the court will take it from them. This rule is not
1 13 Phila. 402. 7 Er parte Crntchfiekl. 3 Yerg. 336.
'■^ Nicholson's Appeal, 20 Penn. St. » Windsor v. .McAtee, 2 Met. (Ky.)
50. 480.
3 Dickerson v. Dickerson, 31 N. J. » Slattery v. Smiley. 25 Md. 389.
Eq. G52. ''' Perkins r. Finnegan, 105 Mass.
* Cliew's estate, 4 Md. Ch. fiO ; 501. Wliere dereliction of duty as to
Cooper's Case, 2 Paige Ch. 34. See the person of the ward is charged, and
Lord Thurlow, in Smith v. Bate, 2 not mismanagement of tlie estate, this
Dick. 631. is insufficient as to guardianship of es-
5 Stone V. Dorrett, 18 Tex. 700. tate. 66 Cal. 240.
6 Morgan v. Anderson, 5 Blackf. i^ Nicholson's Appeal, 20 Penn. St.
503; West v. Forsythe, 34 Ind. 418. 50 ; stipra, § 306.
470
CHAP. III.] TERMINATION OF GUARDIAN'S AUTHORITY. § 317
uniform, however, in all the States. Under the statutes now,
as formerly, in Indiana, Alabama, and some other States, re-
moval from the State constitutes 2^(^''' *^ ^ ground for displace-
ment from office.^ But since, as we have seen, non-residents
may sometimes be appointed guardians on filing security, the
more reasonable rule is to make them liable to displacement
whenev^er, as non-residents, they could not have been appointed
in the first instance.^ Eemoval from the jurisdiction with the
ward's funds may justify summary proceedings ; ^ and so may
allowing the wards to go mto another State by themselves and
neglecting their interests.^
As in making appointments, the court is allowed a liberal
discretion over removals, and its decision will not be reversed
on appeal unless palpable injustice has been done.^ But the
guardian is entitled to notice before removal, that he may
appear in defence ; and, if removed without such notice, unless
he has waived it by his voluntary appearance in court, he has
good ground for appeal ; and it is doubtful whether a new ap-
pointment under such circumstances has any validity whatever. *>
The authorities are clear in requiring notice wherever proceed-
ings for removal involve the guardian's personal character ;
but where the discharge is sought on other grounds, and the
ward's rights are deemed of paramount importance, as when
one under guardianship for insanity is restored to reason, or a
ward arrived at fourteen wishes to exercise the privilege of
nominating a successor, removals without notice are sometimes
1 Nettleton v. State, 13 Ind. 159; them who will supersede the former.
Cockrell v. Cockrell, .36 Ala. 673. Moses v. Faber, 81 Ala. 445.
2 See Speight v. Knight, II Ala. 461 ; * Watt v. Allgood, 62 Miss. .38.
also supra, § 306 ; Succession of Book- 5 Nicholson's Appeal, 20 Penn. St.
ter, 18 La. Ann. 157. Going into the 50; Isaacs v. Taylor, 3 Dana, 600;
Confederate lines during tlie war did Young v. Young, 5 Ind. 513.
not forfeit tutorship. Clement v. Sigur, ^ Hart v. Gray, 3 Sumn. 339 ; Gwin
29 La. Ann. 798. v. Vanzant, 7 Yerg. 143 ; Myers v. Pear-
3 State V. Engelke, 6 Mo. App. 3-56. soil, 17 Ind. 405; Croft v. Terrell, 15
Under Alabama Code, if the surviving Ala. 6.52. As to a revocation of letters
mother of minor children for whom a where the trust has never been fully
guardian is appointed in the county assumed, or the appointment was il-
of the late fatiier's domicile, removes legal, less strictness is requisite. See
with tiiem into anotlier county, another Scobey v. Gano, 35 Ohio St. 550.
guardian may be there appointed for
471
§ 317 a THE DOMESTIC RELATIONS. [PART IV.
sustained ; ^ still the better opinion is in favor of notice in all
cases.
2
It is held in Vermont that when a guardian who has been
removed from office appeals, and in the mean time another has
been appointed in his place and given bonds, the powers of the
old guardian cease, and the new one takes control, until he is
restored.^
§ 317 ff. The Same Subject. — We have seen that chancery
courts in this country claim the right of removing testamentary
guardians. In England, the rule is not laid down so strongly.
Testamentary guardians are not removed, but superseded in
their functions : a refinement adopted, it is said, out of defer-
ence to the act of Parliament.* In this sense are to be under-
stood certain expressions of Lord Hardwicke and Lord Redesdale,
which would seem to extend the authority of the court to actual
removal from office.^ Lord Nottingham, in Foster v. Denny, said
that h'e could not remove a guardian constituted by act of Par-
liament.'' This is still the doctrine of the English chancery ;
but it exercises full jurisdiction in ordering infants to be made
wards of court, with suitable directions for their maintenance
and education ; and it will restrain the testamentary guardian
from interference with the person and estate of wards thus taken
under its protection.''
By the common law, certain persons, as idiots, lunatics, deaf
and dumb persons, persons under outlawry or attainder, and
lepers removed by writ of leprosy, were passed over in the guar-
dianship. And where a guardian became incapable of acting,
the office devolved upon the next person to whom the inherit-
ance could not descend.^ Such guardians do not appear to have
been removed from office. But there can be little doubt that
the insanity of a probate or chancery guardian would be good
1 Hovey v. Harmon, 49 Me. 269 ; van, 1 Ves. 160 ; Lord Redesdale, in
supra, eh. 2. O'Keefe v. Casey, 1 Sch. & Lef. 106.
2 Montgomery v. Smith, 3 Dana, ^ 2 Ch. Cas. -237.
699 ; Copp V. Copp, 20 N. H. 284 ; Lee ^ Smith v. Bate, 2 Dick. 631 ; Ing-
V. Ice, 22 Ind. 384. But see Cooke v. ham r. Bickerdike, 6 Madd. 275. See
Beale, 11 Ired. 36. also M'Cullochs, In re, 1 Dru. 276; 12
8 State V. McKown, 21 Vt. 503. Jiir. 100.
* Macphers. Inf. 128. 8 Co. Litt. 88, 89 ; Macphers. Inf.
^ Lord Hardwicke, in Roach v. Gar- 24, 25.
472
CHAP. III.] TERMINATION OF GUARDIAN'S AUTHORITY. § 318
cause for his removal or supersedure ; and a final settlement of
liis guardianship accounts would properly be required from his
own guardian.^
§ ;318. Marriage of Female Guardian. — The marriage of a fe-
male guardian may terminate her authority, though that of a
male guardian never does. The old rule of the common law
appears to have been, that when a female guardian in socage
married, her husband became guardian in right of his wife ; but
tliat on her death guardianship ceased on his part, and went to
the infant's next relation.''^ Testamentary guardianship in Eng-
land seems to be left to the operation of the will in such cases :
chancery refusing to interfere with the testator's own directions.^
But it is customary for the father to designate successors in the
event of marriage. What has already been said on the subject
of appointing married women guardians applies, likewise, in this
connection.^ Certainly, if marriage does not absolutely put an
end to the guardian's authority, it has the common-law effect of
joining her husband in the trust ; ° and yet, according to some
American statutes, the fact of marriage would only render her
liable to removal.^ In Louisiana, the mother, by the advice of
a family meeting, previous to her remarriage, may be retained
in the tutorship of her minor children, notwithstanding her re-
marriage ;" but if she fails to procure such advice, she loses the
tutorship.^
1 Modawell t*. Holmes, 40 Ala. 391 ; band's written consent to the wife's con-
Damarell r. Walker, 2 Redf. 198. tinuance in office, see Hardin v. Helton,
2 Co. Litt. 89 a ,- Bac. Abr. Guardian 50 Ind. 319. In New York semble tlie
& Ward (E). See 7 Vt. 372. widowed mother's remarriage termi-
3 Macphers. Inf. 129; Morgans. Dil- nates her guardianship, and under the
Ion, 9 Mod. 135 ; Dillon v. Lady Mount statute she can be removed. Swart-
Cashell, 4 Bro. P. C. 306. See Corbet wout v. Swartwout, 2 Redf. 52. The
V. Tottenham, 1 Ball & B. 59. female guardian who marries must not
* See supra, § 806 ; Martin v. Foster, abandon her rights of custody ; her
38 Ala. 688; Elgin's Case, 1 Tuck, marriage does not, in Kentucky, ex-
(N. Y. Surr.) 97 ; Leavel v. Bettis, 3 tinguish her authority. Cotton r.
Bush, 74. Wolf, 14 Bush. 238.
5 Wood V. Stafford, 50 Miss. 370; e See Hood v. Perry, 73 Ga. 319;
supra, § 86. Statutes in some States § 326.
change the old rule, and expressly au- "^ Gaudet v. Gaudet, 14 La. Ann.
thorize a married woman to be guar- 112.
dian. Schouler, Hus. & Wife, appendix. ^ Keene r. Guier, 27 La. Ann. 232.
As to requiring in such case the hus-
473
§ 320 THE DOMESTIC RELATIONS. [PART IV.
§ 319. Other Cases where a New Guardian is appointed. —
There are some other cases in which it is said that a new guar-
dian may be appointed, as though guardianship had already
determined. Thus, where a testamentary guardian has not
acted, and declines to act, chancery may appoint a successor.^
So in other cases where the guardian renounces his appoint-
ment.^ Filing a bond, with proper security, is sometimes re-
garded as the condition precedent to a probate appointment,
and it is thought that letters need not be revoked in such a
case. But this is by no means a settled rule.^ Letters of guar-
dianship obtamed through material false representations may be
revoked.*
Outlawry and attainder of treason — or what is known as
civil death — did not put an end to guardianship in socage ;
because, it was said, the guardian had nothing to his own use,
but to the use of the heir.^ The same principle doubtless ap-
plies to other guardians. But a guardian miglit be properly
removed on such grounds. In the United States, local statutes
largely regulate the general subject of terminating a guardian's
authority.
CHAPTEK IV.
NATURE OF THE GUARDIAN'S OFFICE.
§ 320. Guardianship relates to Person and Estate. — The
powers and duties of a guardian relate either to the person of
the ward, or to the ward's estate, or to both person and estate.
As guardian of the person, he is entitled to the custody of the
ward ; he is bound to maintain him in a style suitable to the
1 Et parte Cliampney, 1 Dick. 350; McCord, 19; Clarke v. Darnell, 8 Gill
O'Keefe v. Casey, 1 Sch. & Lef. 106. & Johns. 111. See West r. Forsythe. -34
'■^ Mt'Alister v. Olmstead, 1 Humph. Ind. 418 ; Fant v. McGowan, 57 Miss.
210; Lef ever v. Lefover, 6 Md. 472; 779.
Simpson v. Gonzalez, 15 Fla. 9. * /?p Clement, 25 N. J. Eq. 508. The
^ Russell V. Coffin, 8 Pick. 148 ; Fay Orphans' Court may thus revoke. lb.
V. Hard, ib. 528; Barns v. Branch, 3 & Co. Litt. 88/*; Macphers. Inf. 25.
474
CHAP. IV.] NATURE OF GUARDIAN's OFFICE. § 320
latter's means and condition in life ; if the ward be a minor, he
superintends his education and directs him in the choice of a
pursuit; and in general, he supplies the place of a judicious
parent. As guardian of the estate, he manages the ward's prop-
erty, both real and personal, with faithfulness and care, changes
investments whenever necessary, with permission of the court,
pays the just debts of the ward, collects his dues, puts out his
money on mterest, manages his investments, keeps regular
accounts, and is, in effect, the ward's trustee.^ Whether the
guardianship be in socage, testamentary, or by chancery or pro-
bate appointment, these powers and duties are essentially the
same ; although, as we have seen, socage guardianship was cre-
ated with special reference to the ward's real estate.^ More-
over, as will fully appear in the succeeding chapters, chancery
and probate guardians are brought more closely under judicial
control and supervision than either guardians in socage or
testamentary guardians.
But while guardianship of the person resembles the relation
of parent and child, it is not altogether like it. The parent
must support his child from his own means; and in return the
child's labor and services belong to him. But the guardian is|
not bound to supply the wants of his ward, except from the I
ward's own estate in his hands and the liberality of others, 1
though it were to keep the child from starving. On the other
hand, the guardian has no more right to the labor and services
of his ward than any stranger. Nor are guardians of the estate
vested with an interest precisely like that of trustees ; for while
the latter may sue and be sued in their official capacity, suits by
and against infants are brought in the name of the ward and not I
the guardian,^
Guardians in socage acquired authority as guardians of the
ward's estate ; and guardianship of the estate drew after it, in
such case, guardianship of the person ; so that they were guar-
dians of both person and estate.^ Testamentary guardians un-
der the statute of Charles II. acquire authority through the
1 2 Kent, Cora. 230-233. * But see Bedell v. Constable,
2 Supra, c. 1. Vaugh. 185.
" See infra, Part V. c. 6.
475
§ 321 THE DOMESTIC RELATIONS, [PART IV.
father's devise to them of the " custody and tuition " of his
children ; and this devise of the person carries with it, as inci-
dent, a devise of the estate ; so that they too (subject to statute
modifications) are guardians of both person and estate.^ But
chancery guardians are not always invested with such powers ;
for the court will make such orders as are needful in all cases.
Chancery sometimes appoints a guardian of the person only, for
a special and temporary purpose.^ Where a suit is pending,
and it becomes necessary to appoint a guardian, chancery ap-
points a guardian of the person only, the estate being under the
direction of the court. But where no suit is pending, and pro-
ceedings are commenced by petition, the guardian is appointed
for both person and estate.^ Probate guardianship is subject,
in great part, to local legislation ; but it may be safely asserted,
as a general principle, that all probate guardians are guardians
of both person and estate, and that the court cannot commit
guardianship of the person to one and guardianship of the prop-
erty to another.*
The guardian is not always entitled to the custody of the in-
fant's person ; but chancery will exercise its discretion for the
benefit of the latter, as to delivering him up to the guardian or
permitting him to remain elsewhere, and as to the persons who
are to have access to him, and the circumstances attending such
access, and generally as to his education.^ And it is the policy
of our legislation to leave the child's person in his parents' keep-
ing so far as possible. But the guardian may be a "guardian of
the person and estate " notwithstanding.
§ 321. "Whether a Guardian is a Trustee. — In discussing the
rio-hts and duties of a guardian, this question next meets us at
the outset : Is or is not the guardian's office substantially that
of a trustee in interest ? This will be best seen by examining
the different kinds of guardians, as they respectively arose.
Guardianship in socage arose very early at common law, and
1 Stat. 12 Car. II. c. 24, §§ 8, 9; 3 Macphers. Inf. 105; 2 Kent, Com.
Vauffh. 178. 229.
2 Macphers. Inf. 114; Ex parte Be- * See Tenbrook v. M'Colm, 7 Halst.
Cher, 1 Bro. C. C. 556 ; Ex parte Wools- 97.
combe, 1 Madd. 213. ^ Mncphers. Inf. 110; Anon.,2 Ves.
Sen. 374.
476
CHAP. IV.] NATURE OF GUAEDIAN's OFFICE. § 321
is the first in order. These guardians were considered as trus-
tees. According to the old authorities, the guardian in socage
had not a bare authority, but an actual estate and interest in
the land, though not to his own use.^ Hence he might elect
whether to let the estate or occupy it for the ward's benefit. He
was considered as entitled to the possession of the ward's prop-
erty, and incapable of being removed from it by any person. In
other words, this guardian had the legal, but not the beneficial
interest. Not long after the statute of Charles 11. chancery was
called upon to determine the nature of testamentary guardian-
ship. Lord Macclesfield, in the case of Duke of Beaufort v. Berty}
stated that testamentary guardians were but trustees ; that the
statute merely empowered the father to appoint a different per-
son as guardian and to continue the relation beyond the age of
fourteen, and until the ward became twenty-one ; and that both
socage and testamentary guardians were equally trustees. And
in the important case of Etjre v. Countess of Shoftesbury,^ this
principle, though with another admitted difference as to succes-
sion, was again affirmed. This general rule has received judicial
sanction in England quite recently.*
Chancery guardianship, of still later origin, resembles in its
nature testamentary guardianship. The same principles are
constantly asserted in regard to both. In either case, the
guardian has a vested interest in his ward's estate, may bring
actions relative thereto, and make leases during the minority of
the infant. He has in all respects the dominion pro tempore of
the infant's estate, and possesses more than a naked authority."
The same may be said of probate guardianship in this country,
which, under statute modifications, has become, if anything,
more like trusteeship than the other kinds.^ And in Tliompson
V. Board mnn'^ the analogies of the old law have been extended
to the case of a spendthrift's guardian.
1 Co. Litt.OOa,- Plowd. ch. 23. See 6 See Truss v. Old, 6 Rand. 556;
next chapter. Isaacs v. Taylor, 3 Dana, 600 ; Alex-
2 1 P. Wms. 703. ander v. Alexander, 8 Ala. 796; Pep-
3 2 P. Wms. 102. per v. Stone, 10 Vt. 427; Lincoln v.
* Gilbert i\ Schwenck, 14 M. & W. Alexander, 52 Cal. 482.
488 ; s. c. 9 Jur. 693. 7 i vt. 370.
^ People V. Byron, 3 Johns. Cas. 53.
477
§ 322 THE DOMESTIC RELATIONS, [PAKT IV.
It is often difficult to say what in strictness is a trustee,
since every trust is limited by the instrument which creates it.
The powers of a guardian differ greatly from those of an execu-
tor or administrator. But so far as guardianship of the estate
is concerned, a guardian is in fact a trustee ; for he holds the
legal estate for the benefit of another.^ To apply the term
" affent " to the guardian's office seems therefore harsh and
unnatural, whatever may be the ward's position.^
§ 322. Joint Guardians. — Where there are two or more tes-
tamentary guardians, and one of them dies or is removed, the
survivor or survivors shall continue. The very nature of the
trust demands it.^ In England, it is otherwise with joint
guardians by chancery appointment ; for if one dies, the office
determines.^ But the survivors will be appointed without a
reference,^ so that after all the rule is only formal. In this
country the more reasonable doctrine prevails, as to both chan-
cery and probate guardianship, that the survivors shall continue
the trust, like co-executors, and on the same principle. This
was declared to be the rule as to joint chancery guardians in a
leading New York case.^ And a Vermont court applies it like-
wise to probate guardians.'^ The statutes enacted in many of
the States remove all further doubt on the subject.
Of two or more persons appointed joint guardians under a
will, one may qualify without the other ; ^ and where one de-
clines to act, all the rights and powers created by the appoint-
ment under the will may devolve upon the other.^ But while
1 See Wall v. Stanwick, 34 Ch. D. fer as to the nature of tlie guardian's
765, citing with approval Mathew v. office, wliich, after all, is sui (jeneris.
Brise, 14 Beav. 341. ^ See Bac. Abr. Guardian (A).
2 But see dlrtuin of Shaw, C. J., in * Bradshaw v. Bradshaw, 1 Kuss.
Manson v. Felton, 13 Pick. 206 ; Midler 528.
V. Benner, 69 111 108. And Soule, J , & Hall v. Jones, 2 Sim. 41.
observes, in Rollins w. Marsh, 128 Mass. 6 Pe„pie v. Byron, 3 Johns. Cas.
116, that guardians of minor spend- 63.
thrifts or insane persons have only '^ Pepper v. Stone, 10 Vt. 427. See
a naked power not coupled with an also remarks of Chancellor Sanford, in
interest. Kirby v. Turner, Hopk. 309, as to the
As the rights and duties of such nature of joint guardianship,
guardians, probate guardians included, ^ Kevan i;. Waller, 11 Leigh, 414.
depend so greatly upon local statutes, » Matter of Reynolds, 18 N. Y. Supr.
local jurisdictions may be found to dif- 41.
478
CHAP. IV.] NATURE OF GUARDIAN's OFFICE. § 323
a joint guardian who had once declined the trust has no further
right to be appointed, he may yet be selected in preference to
others to fill a vacancy. Thus it has been held that where
three testamentary guardians, one of whom was the mother,
were named by the father in his will, and the mother became
sole guardian by the refusal of the others to act with her, they
were properly selected by tlie court, after the mother's death,
on their own application, in preference to the person nominated
in her will.^
On the principle that guardians are trustees, it is held that
joint guardians may sue together on account of any joint trans-
action founded on their relation to the ward, even after the
relation ceases.^ Also that the receipt of one is the receipt of
all.^ Also that one can maintain trespass against the other for
forcibly removing the child against his wishes ; as one of two
joint trustees cannot act in defiance of the other."* And where
one guardian consents to his co-guardian's misapplication of
funds, he is liable.^ The fact that one joint guardian is dead
will not prevent the co-guardian's prior accounts from being
opened on a final settlement in court.^ Guardians, like other
trustees, — executors and administrators excepted, — may por-
tion out the management of the property to suit their respective
tastes and qualifications, while neither parts irrevocably with
the control of the whole ; and in such case each is chargeable
with no more than what he received, unless unwarrantable neg-
ligence in superintending the other's acts can be shown." x^Vud
the discharge of one who has received no part of the estate
relieves him from liability.^ On the other hand, it is presumed
that the survivor of joint guardians received the whole estate,
in absence of proof to the contrary.^
§ 323. Judicial Control of the Ward's Property. — In English
practice, the Court of Chancery holds the ward's property within
1 Johnston's Case, 2 Jones & Lat. 222. 6 Blake v. Pegram, 101 Mass. 592.
2 Shearman v. Akhis, 4 Pick. 283. ^ Jones's Appeal, 8 Watts & S. 143.
8 Alston V. Munford, 1 Brock. 266. ^ Hocker v. Woods, 33 Penn. St.
4 Gilbert v. Schwenck, 14 M. & W. 466.
488. ^ Graham v. Davidson, 2 Dev. &
s Pim ?•. Downing, 11 S. & R. 66. Bat. Eq. 155.
See Clark's Appeal, 18 Penn. St. 175.
479
§ 324 THE DOMESTIC RELATIONS. [PART IV.
its grasp with a tightness unknown to American tribunals.
The regular course is to get in all the money due the infant,
and to invest it in the public funds. A receiver is, if neces-
sary, appointed to facilitate collections, and generally the same
person is made a permanent receiver of the ward's real estate,
to collect all rents. Where there is an executor he will not be
interfered with, except under strong circumstances of suspicion,
but an administrator is treated with less consideration.^ Even
executors who are also testamentary guardians must bring their
funds into court after settling up the estate of their testator.^
Chancery, thus managing actively the ward's property, makes
iti own scheme for maintenance, and allows the guardian a
certain fixed income accordingly.^
Probate guardianship in this country is quite different.
Schemes of maintenance are seldom heard of. Nor are re-
ceivers appointed. The guardian usually collects his ward's
dues, whether from the executor of the parent or others, and
manages the property on his own responsibility, with little
judicial interference. He regulates at discretion the sum proper
for annual expenditure, and changes the rate when expedient.
Of course he is held accountable, on legal principles, much the
same as those of the English chancery ; but he seldom applies
to the court for directions, unless some perplexity arises, or it
becomes expedient to sell real estate, or when the ward cannot
be supported without breaking in upon the principal fund.
§ 324 Guardianship and other Trusts Blended. — The same
person is frequently executor under the parent's will and also
guardian of the minor children. Hence the question will some-
times arise whether he holds the fund in the one or the other
capacity. It is clear that where one is both guardian and exec-
utor, he can n (it be sued in both capacities ; nor are both sets of
sureties liable.^ He is in the first instance liable as executor ;
and in general, to render him liable as guardian, there should
be some distinct act of transfer. His plain duty is to keep the
trusts distinct and not blend them. In the former case, his
1 Macphers. Inf. 268, and cases cited. ^ Macpliers. Inf. 213 et seq.
2 Macpliers. Inf. 118; Blake v. * Wren v. Gayden, 1 How. (Miss.)
Blake, 2 Sell. & Lef. 26. 365.
480
CHAP. IV.] NATURE OF GUARDIAN'S OFFICE. § 324
accounts rendered will show the transfer of the legacy or dis-
tributive share from his account as executor to his account as
guardian ; and thereby his liability as guardian will become
fixed.^ But in the latter case, or if no clear evidence appears
elsewhere of an actual transfer, can it be presumed ? The better
opinion is that, after the time limited by law for the settlement
of the estate has elapsed, and there is no evidence of intent to
hold longer as executor, he shall be presumed a guardian ; on
the principle that what the law enjoins upon him to do shall be
considered as done.^ And certainly very slight evidence would
confirm any possible doubt ; such as the division of the parent's
estate among other heirs, the payment of legacies, or where he
has placed some of the chattels on the ward's farm,^ or has
charged himself in the new capacity, crediting himself in the
former one.^ But the rule may be otherwise with joint execu-
tors or administrators ; ^ and we need hardly add that this doc-
trine applies in strictness only to personal assets which pass
through administration ; since real estate, ordinarily, goes at
once to the heir. Acts, too, inconsistent with the purpose of
holding as guardian, and consistent with that of continuing
administrator or executor, should not readily be construed to
a ward's prejudice ; but rather, if need be, serve to repel the
presumption of guardianship, and in any event to aid the bene-
ficiary who seeks redress.*^
If a legacy is given under a will to an infant, which he is
not to receive unless he attain full age, it would appear that
1 Alston V. Munford, 1 Brock. 206 ; And see Thurston v. Sinclair, 79 Va.
Burton v. Tuiinell, 4 Marring:. (Del ) 101.
424, contra, Conkey v. Dickinson, \o ^ Watkins v. State, 4 Gill & Johns.
iMet. 51 ; Stillman v. Young, 16 111. 318 ; 220 ; Coleman v. Smith, 14 S. C. 511.
Foteaux v. Lepage, 6 Clarke (Iowa), '' In doubtful cases of this kind, the
123; Scott's Case, 36 Vt. 297. modern inclination is to let the ward
2 Watkins i\ State, 4 Gill & Johns, sue both sets of sureties, or eitlier,
220; Karr y. Karr, 6 Dana, 3; Crosby leaving them to adjust their equities
V. Crosby, 1 S. C. n. s. 337 ; Wilson v. among themselves ; Harris i\ Harrison,
Wilson, 17 Ohio St. 150; Townsend i;. 78 N. C. 202. And see Coleman v.
Tallant, 33 Cal. 45; Re Wood, 71 Mo. Smith, 14 S. C. 511. So, too, where
623; Weaver v. Tliornton, 63 Ga. 655. a guardian subsequently becomes trus-
3 Joimson r. Johnson, 2 Hill Ch. tee. State r. Jones, 68 N. C. 554 ; Per-
277 ; Drane v. Bayliss, 1 Humph. 174. ry v. Carmichael, 95111. 519.
^ Adams v. Cleaves, 10 Lea, 367.
31 481
§ 325 THE DOMESTIC RELATIONS. [PART IV.
the simpler course is for the executor to retain the fund during
the infant's minority ; yet it is held that a probate guardian
may, at the court's discretion, be appointed to receive the fund
and hold it subject to the restriction contained in the will.^ If
a guardian has duly qualified, the child's legacy or distributive
share should be paid over to the guardian. A guardian of the
estate of minors may contest the account of an executor or
administrator in an estate where his wards are interested.^
A guardian cannot blend distinct trusts of guardianship by
appointment. Thus, where a person was appointed guardian
of an infant who became insane shortly before reaching his
majority, and the same guardian continued to act, styling him-
self guardian of " A. B., an idiot," it was held that his trust
properly expired with the infancy of the minor.^ Nor does it
matter that the probate court recognizes a continuation of the
trust by passing his accounts ; for an actual appointment, after
the regular form, is always essential to a guardian's authority.*
But the guardian of a minor has sufficient authority to act
during the ward's minority, whether the ward be of sound or
unsound mind ; and those things which a guardian may law-
fully do for his infant ward are none the less lawful because it
turns out afterwards that the ward was insane.^
§ 325. Administration durante Minore iEtate. — Where the
person designated as executor of a will is under age, it becomes
necessary to appoint an administrator during minority, which
appointment was at common law denominated durante minore
cctatc.^ So when the next of kin is under age, the English prac-
tice in such cases is to appoint the infant's guardian, unless
there be some other next of kin competent to act ; though the
rule is not invariable.''' And in the English case of John v.
1 Gunther v. State, 31 Md. 21 ; s Coon v. Cook, 6 Ind. 268.
Moody Re, 2 Dem. 624. For the rule * But see King v. Bell. 36 Ohio St.
concerning money paid under rules of 460.
the U. S. treasury, see Low v. Hanson, ^ Francklyn v. Sprague, 121 U. S.
72 Me. 104. See also Landis v. Eppstein, 215.
82 Mo. 99. 6 1 wms. Ex'rs, 419, 420 ; 2 Redf.
2 Appointment of an attorney to Wills, 92, 93.
represent the minors does not super- ^ 76.
sede the guardian's rights in this re-
spect. Rose's Estate, 66 Cal. 241.
482
CHAP. IV.] NATURE OF GUARDIAN'S OFFICE. § 326
BradhiLV)/, decided as late as 1866, it is affirmed that the guar-
dian of an infant sole next of kin shall not only administer in
preference to creditors, but shall be exempted from security,
except in very strong cases, notwithstanding the creditors re-
quest it.^ So he is preferred to the husband of a married
woman who died after a judicial separation.^ But in this
country, while there are statutes in some States favoring similar
doctrines, in others the court has full discretion in selecting a
substitute for the child.'^ Such administrator has for the time
being all the powers of a general administrator, but his term of
office is restricted to the infant's minority.*
§ 326. Quasi Guardianship -where no Regular Appointment. —
A quasi guardianship often arises at law where there has been
no regular appointment, or an appointment without jurisdiction
or some intermeddlhig. The general principle thus recognized
is that any person who takes possession of an infant's property
takes it in trust for the infant. Hence courts of equity will
always protect the helpless in such cases by holding the person
who acts as guardian strictly accountable. The father may thus
be a quasi guardian.^ So may a stepfather.^ Or a widowed
mother who marries again.''' Or one whose appointment as
guardian was irregular or null.^ But not an executor or admin-
istrator in rightful possession of the infant's property ; for he
holds in a different capacity.^ A son who takes charge of an
incompetent father's estate, with the latter's acquiescence, may
make his father an equitable ward.^*' Chancery has full juris-
diction over the transactions of all persons standing in loco
parentis}^
On the same principle, one regularly appointed guardian of
1 John V. Bradbury, L. R. 1 P. & D. 7 Wall r. Stan wick, 34 Ch. D. 763.
245. 8 Crooks v. Turpin, 1 B. Monr. 185
2 Goods of Stephenson, L. R. 1 P. Earle i'. Crum, 42 Miss. 165; McClure
& D. 287. But tlie liusband usually v. Commonwealth, 80 Penn. St. 167
administers. See supra, § 19(3. State v. Lewis, 73 N. C. 138.
3 1 Wms. Ex'rs, 419; Mass. Gen. 9 Bibb v. McKinley, 9 Port. 636
Stats, c. 94. Minfee v. Ball, 2 Eng. 520.
* 1 Wms. Ex'rs, 428, and notes ; ^ Jacox v. Jacox, 40 Mich. 473. See
Schouler, Executors, §§ 1.32, 1.35. also Munroe v. Phillips, 64 Geo. 32;
5 Pennington i-. Fowler, 3 Halst. Ch. Sherman v. Wright, 49 N. Y. 227.
343; Alston i>. Alston, 34 Ala. 15. " Espey v. Lake, 15 E. L. & Eq.
6 Espey V. Lake, 15 E. L. & Eq. 579. 579.
483
§ 328 THE DOMESTIC RELATIONS. [PAKT iV.
an infant is held responsible for acts committed before quali-
fying as such by giving bonds.^ And although his authority
ceases when the ward attains majority, he continues person-
ally responsible so long as his possession and control of the
property continues.^
§ 327. Conflict of Laws as to Guardianship. — The guardian's
authority is limited to the jurisdiction which appoints him, and
does not extend to foreign countries, unless permitted by foreign
laws. Every nation is sovereign within its own borders, but
powerless beyond them. The rights of foreign guardians have
been to some extent admitted, however, on the principle of
comity.^ These rights may be considered, Jirst, as to the person
of the ward ; second, as to his estate.
§ 328. Conflict as to Ward's Person. — Fijsf, as to the ward's
person. Many writers on public law claim that the guardian's
authority extends everywhere. Others again deny that it ex-
tends beyond the jurisdiction which appoints.* In England,
the paternal authority is recognized, even in aliens ; but if an
infant has a guardian appointed by any other authority out of
the jurisdiction, the appointment fails as soon as the infant
comes to England, and the court of chancery will thereupon
appoint a guardian on petition.^ Yet in a case not long ago
liberal favor was shown toward the foreign guardian of wards
domiciled abroad. He had sent them to England to be educated,
and wished to remove them to their own country in order to
complete their education. The court refused to interfere with
their removal, and allowed the exclusive custody to the foreign
guardian ; at the same time, however, refusing to discharge an
order appointing English guardians.^
In this country, the rights and powers of guardians over the
ward's person are considered strictly local, even as between
1 Magruder v. 'Oamall, 6 Hill, 260. 3 See Story, Confl. Laws, §§ 492-
2 Mellish V. Mellisli, 1 Sim. & Stu. 529.
138; Armstrong y. Walk lip, 12 Gratt. * lb. §§ 495-497, and authorities
608. Whether a woman's letters abate cited.
or not on her marriage, she is liable if ^ Macphers. Inf. 577 ; Ex parte Wat-
she allows her husband to use the kins, 2 Ves. 470.
ward's property. Hood v. Perry, 73 « Nugent c. Vetzera, L. R. 2 Eq. 704.
Ga. 319; §318. See 27 E. L. & Eq. 451.
484
CHAP. IV.] NATURE OF GUARDIAN'S OFFICE. § 329
different States,^ though the paternal right would probably be
recognized as in England.'-^ But in Massachusetts, some years
ago, the custody of a child was awarded to a foreign guardian,
in preference to one appointed within the jurisdiction ; the
court observing that while the former had no absolute right to
the child, his office would be deemed an important element in
determining to whom custody should be given.^
§ 329. Conflict as to Ward's Property. — SecoJid, as to the
ward's property. A distinction has been made between mov-
ables and immovables. As to immovable property, such as real
estate, it is almost universally admitted that the law rei sitae
shall govern.* But writers do not agree as to movable property,
such as goods and personal chattels, whether the law of the
domicile shall prevail over that of the situation. Judge Story
considered the weight of foreign authority in this respect, in
favor of admitting the guardian's right to prevail everywhere
to the same extent as they are acknowledged by the law of the
domicile/^ And this seems to be the Scotch doctrine.^ But
according to the doctrine of the common law, now fully estab-
lished both in England and America, the rights of a guardian
over all property whatsoever are strictly territorial, and are
recognized as having no influence upon such property in other
countries where different systems of jurisprudence are estab-
lished. No foreign guardian can, by virtue of his office, exercise
his functions in another country or State, without taking out
other letters of guardianship or otherwise conforming to the
local law ; while, on the other hand, local courts consider their
1 Story, Confl. Laws, § 499 ; Morrell ^ gge Townsend v. Kendall, 4 Minn.
r. Dickey, 1 Johns. Ch. 15.3; Kraft v. 412.
Wickey, 4 Gill & Johns. .332 ; Burnet ^ Woodworth v. Spring, 4 Allen,
r. Burnet, 12 B. Monr. 323; Boyd v. 321.
(!lass,34Ga. 253; Whart. Confl. Laws, * Story, Confl. Laws, §§ 500-502.
§5 ■JGl-264 ; Rice's Case, 42 Mich. 528. And see post, c. 7. As between West
We have seen that the courts of a Virginia and Virginia, see Rinker v.
State or country will take jurisdiction Streit, .33 Gratt. 663.
for the time being where the ward bona ^ Story, Confl. Laws, §503; Schouler,
.A'fZe resides in the jurisdiction, tliough Pers. Prop. 347-385; Wharton, Confl.
not perhaps domiciled there. Supra, Laws, §§ 265, 266.
§ 303. Such appointment may not « Story, Confl. Laws, § 503 ; Fraser,
clothe the guardian witli extra-terri- Parent & Child, 604.
torial authority, yet it is not void.
485
§ 329
THE DOMESTIC RELATIONS.
[part IV.
own authority competent within the jurisdiction, if the ward's
property be located there. Such is the rule in both countries.^
And hence a foreign general guardian is often required to take
out ancillary letters in the courts of a State in which he desires
recognition.^
But the rigor of this rule is sometimes abated. In England,
personal property will, under certain circumstances, be paid to
an owner who, if domiciled and resident in that country, would
not be allowed to receive it.^ So administration durante 7ninore
cetate has been granted to a foreign guardian.* In this country
there are local statutes which permit non-resident guardians
to sue on compliance with certain formalities, or even without
them.^ But otherwise they cannot bring actions of any sort.^
And this seems to be the English rule likewise^ Nor will the
courts of one State enforce the obligation of a probate guar-
dian's official bond with sureties given in another State.^ The
question whether the foreign jurisdiction has conferred similar
1 Story, Confl. Laws, § 504 ; supra,
§ 303 ; Rice's Case, 42 Mich. 528 ; Wel-
ler V. Suggett, 3 Redf. 249 ; Hoyt v.
Sprague, 103 U. S. Supr. 613; Leonard
V. Putnam, 51 N. H. 247. As to a con-
tract by a person under guardianship,
made in another State and valid there,
see Gates v. Bingham, 49 Conn. 275.
Where an infant, domiciled and having
a guardian in one State, is taken to an-
other State without the guardian's as-
sent, the courts of the former State
incline to uphold the guardian of their
jurisdiction against a guardian ap-
pointed in tlie other State as to rents
of lands. Munday v. Baldwin, 79 Ky.
121. Before permitting an infant's
property to be transferred beyond tiie
State limits, the court must be satis-
fied tliat the guardian has been regu-
larly appointed according to the laws
of the State where tlie ward resides,
that the guardian is fit for the appoint-
ment, and that sufficient security has
been given. Cochran v. Fillans, 20
S. C. 237. A guardian properly con-
stituted in the State of the ward's resi-
dence is favored. Watt v. Allgood, 62
Miss. 38.
486
2 Gunther Re, 3 Dera. 386.
^ Macphers. Inf. 577 ; Goods of
Countess Da Cunha, 1 Hag. 237.
* Goods of Sartoris, 1 Curteis, 910.
5 Ex parte Heard, 2 Hill. Ch. 54;
Hines v. State, 10 S. & M. 529 ; Sims v.
Renwick, 25 Geo. 58 ; Grist v. Fore-
hand, 36 Miss. 69 ; Martin v. McDonald,
14 B. Monr. 544; Carlisle v. Tuttle, 30
Ala. 613 ; Warren v. Hofer, 13 Ind. 167 ;
Re Fitch, 3 Redf. 457 ; Shook v. State,
53 Ind. 403.
6 Morrell v. Dickey, 1 Johns. Ch.
153; Kraft v. Wickey, 4 Gill & Johns.
322 ; Rogers v. McLean, 31 Barb. 304.
This is the rule, too, in Louisiana. Sue-
cession of Shaw, 18 La. Ann. 265 ;
Succession of Stephens, 19 La. Ann.
499. But as to instituting proceedings
to call the resident guardian to account,
see 109 111. 294.
^ Story considers it doubtful. Beat-
tie y. Johnston, 1 Phillips Ch. 17; 10
CI. & Fin. 42; contra, Morrison's Case,
cited in 4 T. R. 140, and 1 H. Bl. 677,
682.
8 Probate Court v. Hibbard, 44 Vt.
597.
CHAP. IV.] NATURE OF GUARDIAN'S OFFICE.
§ 330
privileges upon citizens of the local forum carries some weight.^
But a court having general chancery jurisdiction over matters
of guardianship may, it appears, in the exercise of sound dis-
cretion, and upon principles of comity, equity, and justice, order
assets of the ward in the possession of a guardian resident
within its jurisdiction to be delivered to the guardian abroad.^
While courts of equity will permit property to pass to the for-
eign guardian, in pursuance of law, it seems that they will
generally exercise discretion, and in some cases require good
security,^ in others, direct the payment of a regular allowance,*
and in others, refuse payment altogether;^ the welfare of the
infant being always considered in such cases.
The principles applicable to non-resident guardians in this
country appear in many respects similar to those in case of
foreign executors and administrators, and the rules we have
stated might be subjected to modification by the mutual treaty
stipulations of two independent governments.^
§ 330. Constitutional Questions relating to Guardianship. —
As each legislature in this country derives its authority from
J 13 Phila. 385, 389. The authority
of a guardian of a non-resident minor
is limited usually to the particular local
property which confers a jurisdiction.
10 Fed. K. 894. See Hart v. Czapski,
11 Lea, 151. But in accounting for
his investments a non-resident guar-
dian should not be held to a narrower
range of securities than the law of
the ward's domicile allows. Lamar f .
Micou, 114U. S. 218.
'^ Earl V. Dresser, 30 Ind. 11.
3 Case of Andrews' Heirs, 3 Humph.
592 ; Martin v. McDonald, 14 B. Monr.
544 ; Re Fitch, 3 Redf. 457.
* McNeely v. Jamison, 2 Jones Eq.
186. And see Er parte Dawson, 3
Bradf. 130 ; M'Liskey >•. Reid,4 Bradf.
334.
5 See 2 Story, Eq. Juris. § 1854 6,-
Stephens r. James, 1 M. & K.627. Let-
ters are thus granted in the State
having property, ancillary to the guar-
dianship in child's domicile or resi-
dence. Metcalf V. Lowther, 56 Ala.
312; Marts v. Brown, 56 Ind. 386.
As to right of foreign guardian to
petition for appointment of guardian
ad litem without ancillary letters, see
Freund v. Washburn, 17 Hun, 543;
Shook V. State, 53 Ind. 403. As to
a foreign guardian's right to transfer
stock, see Ross v. Southwestern R., 53
Ga. 514. Local statutes are found to
regulate this whole subject.
fi Commonwealths. Rhoads, 37 Penn.
St. 60. And see Pratt v. Wright, 13
Gratt. 175. The guardian of a minor
who receives property of his ward in a
foreign country or State must account
for it, unless he can show that he had
accounted for it abroad. Secchi's Es-
tate, Myrick's Prob. 225. As to the
proper course for care and transfer of
the ward's money when a ward re-
moves from the jurisdiction, and a new
guardian is appointed in the State of
his new domicile, see Snavely v. Hark-
rader, 29 Gratt. 112.
487
§ 330 THE DOMESTIC RELATIONS. [PAET IV.
a written constitution, questions sometimes arise in our courts
as to the validity of certain statutes, which in Great Britain
are of no importance, since there an act of ParHament is the
supreme law. Thus it is not uncommon for our legislatures to
authorize or confirm the sale of lands held by guardians and
other trustees by special statutes ; and such statutes have been
attacked either as an interference with the property rights of
infants and their heirs, or as an usurpation of judicial func-
tions.^ Such acts are, however, constitutional, unless expressly
forbidden, according to the best authorities, where at least the
object is simply to provide for a change of investment for the
beneficiary, and not to divest the latter of property rights.^
But in a New Jersey case, it was intimated by the Chancellor
that, if fraud or sinister motives on the guardian's part were
shown, the special act might be judicially avoided.^ An act of
the legislature may authorize a certain guardian to sell the real
estate of his infant ward, subject to the approval of the sale by
the probate court.* It is held that the legislature may enable
a foreign guardian to sell lands within the State.^ So a general
law may be enacted for enabling guardians and other trustees
to enter into agreements as to the disposition of property held
by them, consistently with constitutional provisions which pro-
tect the rights of individuals ; notwithstanding the rights of
persons remotely interested in the estate, who are either not
in existence or only contingently concerned, may be thereby
compromised without their assent.^ Doubtless the wiser policy
of the legislature is to refer all cases of this kind to the courts
under general laws ; and thus do some State constitutions
expressly require.'^
1 See Davison v. Johonnot, 7 Met. * Brenhani v. Davidson, 51 Cal. 352.
388, for a full discussion of the question. ^ Boon v. Bowers, 30 Miss. 246;
2 Clarke v. Van Surlay, 15 Wend. Nelson v. Lee, 10 B. Monr. 495.
436 ; Cocliran v. Van Surlay, 20 Wend. « Clarke v. Cordis, 4 Allen, 466. .
365 ; Davison v. Johonnot, 7 Met. 388 ; "^ Per curiam, in Brenhani i;. David-
Snowliill V. Snowhill, 2 Green Ch. 20; son, 51 Cal. 352. An act of the legis-
Brenham in Davidson, 51 Cal. 352; lature cannot authorize a stranger,apart
Hoyt V. Sprague, 103 U. S. Supr. 613. from guardianship, to sell an infant's
But see Opinion of Justices, cited in 4 land or other property as an individual,
N. H. 572 ; Jones v. Perry, 10 Yerg. 59. and so confer a good title ; and certainly
8 Snowhill V, Snowhill, 2 Green Ch. no act will be readily interpreted to
20. mean this. The sale is supposed to be
488
CHAP, v.] RIGHTS AND DUTIES OP GUARDIANS. § 332
CHAPTER V.
eights and duties of guardians concerning the
ward's person.
§331. Division of this Chapter. — As the guardian of a
minor stands in the place of a parent, suh moclo, his rights and
duties, so far as concerns the person of his ward, are to be
considered correspondingly with those of a parent. His rights
relate chiefly to the ward's personal custody. His duties
are those of protection, education, and maintenance. These
rights and duties will be considered at length in the present
chapter.
§ 332. Guardian's Right of Custody. — Guardianship, gen-
erally, carries with it the custody of the ward's person. This
is especially true where the ward's parents are both dead or
incompetent to act, for natural guardians have the prior claim
to custody while alive. Some one must exercise the right of
custody of the infant when the natural protector is wanting ;
and who is more suitable than the officer invested by law with
the responsibility of paying for the child's education and main-
tenance ? Hence the guardian's title is, in this respect, higher
than that of relatives and friends ; and he may insist upon
taking the child from the control of a stepmother or grand-
mother, or from any person to whom the father has informally
committed the care.^ For such considerations, however ma-
terial in determining the selection of a guardian, become super-
authorized as of one in the guardian tutlon of that State no probate guar-
or trust capacity, and to require or to dian could be appointed over a child
respect his due appointment. Paty y. whose father was living
Smith, 50 Cal. 153; Lincoln v. Ale.x- i Coltman i'. Hall, 31 Me. 196; Bou-
ander, 52 Cal. 382. See, further, Ex nell v. Berryhill, 2 Cart. 613; Johns v.
parte Atkinson, 40 Miss. 17, to the Emmert, 62 Ind. 533.
effect that under the former consti-
489
§ 332 THE DOMESTIC KELATIONS. [PART IV.
seded by the actual appointment. And it has been said that
the decision of the court as to the guardian's appointment is a
final decision as to the care and custody of the ward.^
But the custody of infants, as we liave seen, is a subject
within the free discretion of courts of equity ; and wliere the
interests of the ward require it, the care of his person will be
committed to others.^ Cliancery jurisdiction applies in this
respect to testamentary and chancery guardianship. The good
of the child is superior to all other considerations. Of this the
court will judge in each case by the circumstances, and make
orders accordingly, both as to actual custody and as to the per-
sons who may have access to the child. In determining where
the infant shall reside, the infant's inclination shall have con-
siderable weight, if he be of sufficient age ; but not, it would
appear, during the period of nurture.^
The right of chancery courts to regulate the personal custody
of infants subject to probate guardianship has also been asserted
in this country. This principle determined the decision of the
court in the New York case of People v. Wilcox.* Here it ap-
peared that the parents had separated, the father being a man
of intemperate habits. The child, by the father's permission,
was subsequently brought up at the house of his paternal
grandparents. Upon the father's death, the grandparents se-
cured letters of guardianship, without notice to the mother,
who was resident elsewhere. She afterwards came forward
and claimed control of her child, then only nine years old. It
appeared that the child was happy and well provided for at the
home of his grandparents. But it also appeared that the mother
was a person of good character, and that no sufficient reason
existed for depriving her of her natural offspring. The child
was therefore taken from the legal guardian and his custody
awarded to the mother; the interest of the child being duly
taken into consideration.
1 Senseman's Appeal, 21 Penn. St. Clark, 40 E. L. & Eq. 109 ; People v.
331. Wilcox, 22 Barb. 178 ; Bounell v. Bcrry-
2 Roach V. Garvin, 1 Ves. 160; hill, 2 Cart.61.3; Rex ?;. Greenl)ill.4 Ad.
Macphers. Inf. 119; Story, Eq. Juris. «& El. 642; Garner v. Gordon, 41 Ind.
§ 1341 ; Ward v. Roper, 7 Humph. 111. 92. See supra, §§ 245-250, as to custody.
8 Anon, 2 Ves. Sen. 374 ; Regina v. * 22 Barb. 178.
490
CHAP, v.] RIGHTS AND DUTIES OF GUARDIANS. § 333
But whatever might have been the language of the court
in this case, it is apparent that the circumstances were of a
peculiar character. This decision turned not merely upon
chancery powers. It recognized the deeper principle of natural
law, that the relation of parent and child shall not be roughly
severed. And thus we find probate guardianship in this coun-
try frequently limited by positive enactment, so as to reserve
to the parents the natural control of their own children and the
right to educate, wlien alive and competent to transact business.^
As to probate guardians, it is to be added that the more natural
course, so far at least as strangers and distant relatives are con-
cerned, is, in controversies like the foregoing, to apply for the
removal of the guardian already appointed, and for the appoint-
ment of another competent to take actual control of the ward's
person.^
§ 333. Guardian's Right of Custody ; Subject continued. —
The English cases are numerous where the mother's claim has
been postponed to that of the testamentary or chancery guar-
dian.'^ And where the mother clandestinely removes her child,
the court has ordered him to be delivered up to the guardian.*
So where she procures his marriage in violation of the statute.^
And in a conflict between the mother and the infant's paternal
relatives, pending the appointment of a chancery guardian, the
court has given the interim custody to strangers.^ But the
court interferes with reluctance as against the mother, where
no misconduct on her part appears, especially if the infant is
1 See Smith's Prob. Pract. 82, 87; One of a child's grandfathers was
Ramsay v. Ramsay, 20 Wis. 507. appointed its guardian ; afterwards an-
2 Under a State Code wliich pro- other one adopted it, the parent before
vides that a guardian shall not be en- dying giving it orally to the latter;
titled to the custody of the ward as but the guardian's right to the child's
against tlie parent if the latter be " a custody was treated as superior. Burger
suitable person," the court on appoint- v. Frakes, 67 Iowa, 460.
ing a guardian should leave open the ^ See Macphers. Inf. 110-121.
question whether the parent is suit- * Wright v. Naylor, 5 Madd. 77.
able. McDowell v. Bonner, 02 Miss. ^ Eyre v. Countess of Shaftesbury,
278. A guardian is not, as of riglit, 2 P. Wms. 10-3 ; Gilb. Eq. 172.
entitled to the custody of his ward ^ In re North, llJur. 7. See Ander-
under fourteen years of age, but the ton v. Yates, 15 E. L. & Eq. 151.
interest of the ward will be considered.
Heather Re, 50 Mich. 261.
491
§ C33 THE DOMESTIC RELATIONS. [PART IV.
of tender years or delicate constitution, and requires maternal
care and nourishment. And Lord Eldon observed, in a case
where the mother's rights came in conflict with those of the
testamentary guardian, that though the effect of the appoint-
ment of a guardian is to commit the custody of the guardian-
ship, the court looks with great anxiety to the execution of the
duty belonging to- the guardian, and the attention expected to
be paid to the reasonable wishes of the natural parent.^ As our
former discussion of the subject of parental custody may have
led the reader to infer, the American rule is not uniform in this
respect ; and as to testamentary and probate guardians, the wid-
owed mother is in some States preferred to the guardian, while
in others the guardian is preferred to the mother ; the legislature
frequently supplying the definite rule of guidance.^
Testamentary guardians cannot be controlled in their rights
by expressions, in other parts of the will appointing them, which
amount to a mere recommendation. A case of this sort came
before Lord Chancellor Cottenham in 1847. The testator had
appointed testamentary guardians over his children in due form,
but had further expressed the wish that in case of his wife's
death during their minority they should be placed under the
care of certain female relatives. The wife having died, the
female relatives desired to assume full control. The Lord Chan-
cellor refused to accede to this extent ; but, upon his suggestion,
an arrangement was effected, satisfactory to all parties, so as to
give the immediate custody to the relatives, while preserving
to the testamentary guardian that general control and superin-
tendence which it was his duty to exercise under the will.^
Chancery will grant access in certain cases while awarding
the custody of the infant to other persons. Not only have
orders of access been made in the mother's favor, but, after her
death, access has been allowed to her representatives.* And
where Lord Hardwicke appointed a grandmother guardian in
preference to the father's executor, he ordered that the latter
1 Earl of Ilchester's Case, 7 Ves. And see Peacock v. Peacock, 61 Me.
380. 211.
2 Lord V. Hough, 37 Cal. 657 ; Ram- » Knott v. Cottee, 2 Ph. 192.
eay v. Ramsay, 20 Wis. 507; contra, * Ord v. Blackett, 9 Mod. 116;
Macready v. Wilcox, 33 Conn. 321. Macphers. Inf. 120.
492
CHAP, v.] RIGHTS AND DUTIES OF GUARDIANS. § 334
should have free access to the infants.^ So in a Georgia case
the court, while confirming the guardian's right of custody, al-
lowed access to a near relative on her request.^ Where, too, a
decree of divorce gives the right of access to a certain parent,
not even a testamentary guardian can refuse obedience.^
Proceedings on a writ of habeas corpus may determine the
question of legal custody. But a child in the personal keeping
of his guardian is in legal custody ; nor can unlawful imprison-
ment or restraint be imputed from the guardian's refusal to sur-
render such child to the parent.^ On the other hand, the court
cannot entertain habeas corpus to restore to the guardian a child
forcibly removed by the parent, unless the child is actually re-
strained of liberty.^ Besides the writ of habeas corpus, there is
a remedy by petition to the court of chancery.^
§ 334. Guardian's Right to change Ward's Domicile or Resi-
dence. — The question whether the guardian may change the
ward's domicile from one country or State to another has given
rise to much discussion. In England, it was decided in the
early part of this century that the surviving parent, being also
the guardian, was competent to do so.''' The case came before
Sir William Grant, and was argued by counsel with great learn-
ing and ability. It was here shown that the best Continental
jurists supported these views ; among them, Voet, Eodenburgh,
Bynkershoek, and Pothier. This is the leading case on the sub-
ject, and its authority has been fully recognized in the United
States.^ The great objection to a change of the infant's domi-
cile is that the right of succession to personal property may be
thereby affected ; and it seems probable that, if the change is
made with fraudulent intent, to the ward's injury or the custo-
1 Hunter v. Macrae, 17 Oct. 1738 ; ^ Foster v. Alston, 6 How. (Miss.)
cited in Maophers. Inf. 121. 406.
•2 Ex parte Ralston, 1 R. M. Charlt. "^ Story, Eq. Juris. §1340, and cases
119. cited; and as to custody in general, see
8 Hill V. Hill, 49 Md. 450. supra. §§ 245-2-50. Concerning statute
* People V. Wilcox, 22 Barb. 178 ; procedure for custody, see Peacock v.
Townsend v. Kendall, 4 Minn. 412 ; In Peacock, 61 Me. 211.
re Andrews, L. R. 8 Q. B. 153. The ^ Potinger v. Wightman, 3 Mer. 67.
guardian's assent to a temporary cus- And see preceding chapter.
tody does not conclude him. Common- ^ Holyoke v. Haskins, 5 Pick. 20;
wealth IK Reed, 55 Penn. St. 425. 2 Kent, Com. 227, n.
493
§ 334 THE DOMESTIC RELATIONS. [PART IV.
dian's private advantage, it will not be sustained. Moreover,
as the case above referred to was that of a parent, it has been
doubted whether a guardian, as such, not being a parent, has
the right to change his ward's domicile. In Pennsylvania, the
guardian's authority has been denied, independently of a court's
permission, and the power confined to the parents.^ But Chan-
cellor Kent expresses dissatisfaction with such a doctrine, and
considers the objection against the guardian's power too refined
and speculative.^ Other American authorities sustain this view,
though in general assuming the principle, rather than asserting
it, and not without some bias as to the particular consequences
resulting.^ The question does not seem to have been raised in
England. With the facilities of modern travel and the liberal
intercourse of nations, the tendency increases in favor of the
guardian's power to change in good faith his ward's residence,
if not the domicile, even though not endowed with parental
authority. This principle is the more readily admitted, so far
as different counties in the same State are concerned.* And it
would be unwise for American courts to apply, as between
States united under one general government, the same rigidly
exclusive doctrines which foreign countries differing in religion,
customs, and civil institutions, may see fit to adopt in their in-
tercourse with one another. For such a change might be for
the direct benefit of the ward's health, education, or personal
surroundings.
The English Chancery Court reluctantly permits its wards
1 School Directors !'. James, 2 Watts where he sent the ward away to pre-
& Sertr. 568; and see Story, Confl. vent a marriage against his wislies,
Laws, §§ 494, 504; 14 Phiia. 298. such marriage not being an objection-
- 2 Kent, Com. 227, n. (r), where able one. Wynn r. Bryce, 59 Ga. 529.
this subject is fully discussed. See * Ex parte Bartlett, 4 Bradf. 22L
Lamar v. Micou, 114 U. S. 218. where But the guardian's intention to change
with the guardian's assent the infants tlie ward's domicile, especially in the
acquired a grandmother's domicile. case of a very young child, is not to be
" Where clearly disadvantageous to presumed. Marlieincke v. Grothaus,
the ward and the ward's kindred and 72 Mo. 204. Here the question arose
connections, this right is not favored, as to whether, the guardian having
The guardian's right to change the died, a successor in the trust was to be
domicile is denied where such change appointed in a different county ; which
affects the ward's testamentary capa- would have been disadvantageous to
city. Daniel ;;. Hill, 52 Ala. 4o0. Or the ward.
494
CHAP, v.] RIGHTS AND DUTIES OF GUARDIANS. § 335
to be carried out of the national jurisdiction. The Chancellor
in De Mannevillc v. De Mannevillc restrained a father, himself an
alien, from removing his child to a foreign country.^ In other
cases, permission has been granted under stipulations for the
benefit of the child ; the guardian being required to transmit
regular returns to the court with vouchers, and to bring back
the ward within a specified time.^ Similar orders in chancery
have been made in this country, though rarely.^
§ 335. Right to Personal Services of "Ward ; to Recover
Damages ; Other Rights. — The guardian has not the same right
as a father to the personal services of the infant. For as his
duty to educate and maintain is limited by law to the ward's
resources, and is not, like the responsibility of a parent, abso-
lute, so his rights are those of a representative, who should
seek to add to the trust fund in his hands, and not to his own
private emolument*
By the common law, the guardian could maintain an action
of trespass and recover damages for his ward ; and the statute
of Westminster II. c. 32, gave a writ of ravishment, by means of
1 10 Ves. 52. See Dawson v. Jay,
27 E. L. & Eq. 451.
2 Jeffreys v. Vanteswartsworth,
Barn. 141 ; Jackson ?-'. Hankey, Jac.
265, v.; Stephens v. James, 1 M. & K.
627; Lethera v. Hall, 7 Sim. 141 ; Tal-
bot i>. Earl of Shrewsbury, 18 L. J.
125. See Macphers. Inf. 129-132.
3 Ex parte Martin, 2 Hill Eq. 71.
Lord Chancellor Cottenham has ob-
served, on this subject, that while
circumstances may occur, such as the
ill-health of the ward, so as to render
his removal necessary, the general
rule ought to be against permitting an
infant ward to be taken out of the
jurisdiction. He further declared his
regret that this rule had not been more
strictly adhered to, and his conviction
that a permanent residence abroad was
injurious to the future prospects of
English children, inasmucli as they
were thus deprived of their religious
opportunities, separated from their
natural connections, estranged from
the members of their own families,
witlidrawn from those courses of edu-
cation which their contemporaries were
pursuing, and accustomed to habits
and manners which were not those of
their own country, and were constant-
ly becoming from day to day less and
less adapted to the position which they
should afterwards occupy in their na-
tive land. Campbell v. Mackay, 2 M.
& C. 31.
* See Bass v. Cook, 4 Port. 390;
Bouv. Diet. " Guardian ; " Bannister v.
Bannister, 44 Vt. 624; Haskell v. Jew-
ell, 59 Vt. 91. A guardian commits
no breach of duty towards his ward
who is nearly of age, in permitting the
ward to devote all his wages towards
keeping together and supporting his
orphan brothers and sisters. Shurtleff
V. Rile, 140 Mass. 213. Otherwise
semh/p. if the guardian allowed such
wages to be devoted to vicious and im-
proper uses. lb.
495
§ 336 THE DOMESTIC RELATIONS. [PART IV.
which he could recover the body of the heir as well as damages.^
The equity of this statute may perhaps extend to testamentary,
chancery, and probate guardians, as well as to guardians in
socage ; on which principle it has been held that the guardian
may sue and recover damages for the seduction of his female
ward .2
The guardian, acting in loco parentis, may bind out his ward
as an apprentice whenever the father could do so. This, how-
ever, is a matter almost exclusively of statute regulation.
And while the father is usually held liable in damages for his
son's breach of contract, it would seem that the guardian is
not personally responsible for his ward unless the statute makes
him so.^
As the guardian is bound to promote the moral welfare of
the person entrusted to his care, he may warn off from the
ward's premises any persons improper for him to associate with,
and, if necessary, expel them forcibly. This right is to be
reasonably construed ; and in the use of means and the amount
of force necessary to effect his object, he is allowed a liberal
discretion, such as a parent might exercise under like circum-
stances.* And in many other respects the rights of a guardian
resemble closely those of a parent.^
§ 336. Guardian's Duties as to Ward's Person; in General. —
The guardian's duties as to the ward's person are those of
protection, education, and maintenance. In exercising' them,
he is bound to regard the ward's best interests. Guardians,
as we have seen, are seldom appointed where there is not some
property. But even though the ward be penniless, we are not
to suppose that one vested with the full right of custody can
neglect with impunity those offices of tenderness which com-
mon charity as well as parental affection suggest. For to the
1 Bac. Abr. Guardian (F). ward occupies his own house affords
2 Fernslee v. Moyer, 3 Watts & him no special immunity against his
Serg. 416. guardian. Accordingly, it lias been held
8 Velde ?'. Levering, 2 Rawle, 209. that the guardian of a spendthrift may
* Wood V. Gale, 10 N. H. 247. enter the dwelling-house of the latter,
^ Insane persons and spendthrifts in the performance of official duties,
cannot manifestly be subjected to the without his permission and against his
same personal restraint and custody will. State v. Hyde, 29 Conn. 664.
as infants. But the fact that such
496
CHAP, v.] EIGHTS AND DUTIES OF GUARDIANS. § 3S7
orphan he stands in some sense in the place of a parent, and
supplies that watchfulness, care, and discipline which are
essential to the young in the formation of their habits, and
of which being deprived altogether, they would better die than
live.
§ 337. Liability for Support of Ward. — It is, however, to
be always borne in mind that while the father is bound to
educate and maintain his children absolutely and from his
own means, no such pecuniary responsibility is imposed upon
a guardian who is not the parent. The latter, by virtue merely
of such trust, need only use for that purpose the ward's for-
tune. Hence, in supplying the wants of his wards, he is to
consider, not the style of life to which they have been accus-
tomed, so much as the income of their estate at his disposal.
Whatever their social rank may have been, he may, provided
they are left destitute, place them at work, or, if they are too
young or feeble, surrender them to some charitable institution ;
they should, if old enough and able, be kept at work earning
their support. An agreement may thus be made between the
guardian and some relative of the child or a stranger, for the
fair support of the ward in exchange for his services. He
should, however, act with delicacy and prudence ; he may
properly consider in this connection the habits and tastes of
the children and the wishes of their relatives ; and he can
relieve ■ himself of responsibility by asking judicial guidance.
The courts show a liberal disposition to protect the guardian
from personal liability on account of his ward. And if a guar-
dian has permitted the ward, at his own cost, to remain in the
care and custody of another, without express contract as to the
period of time, he may, whenever he pleases, terminate his per-
sonal liability by giving notice. Nor does it affect the case that
his ward is then too sick to be removed.^
1 Spring I'. Woodworth, 4 Allen, Ind. 305. As soon as one not a parent
326; Overton v. Beavers, 19 Ark. 623; or in loco parentis is appointed guar-
Bredin v. Dwen, 2 Watts, 95 ; Hussey dian, he may charge for the support of
V. Roundtree, Busb. 110; Gwaltney v. the ward. Pratt v. Baker, 56 Vt. 70;
Cannon, 31 Ind. 227; McOaniel r. Moyer u. Fletcher, 56 Mich. 508. A
Mann, 25 Tex. 101 ; Ford v. Miller, 18 guardian who is also stepfather and
La. Ann. 571 ; Brown v. Yaryan, 74 maintains the wards in his family and
32 497
§337
THE DOMESTIC RELATIONS.
[part IV.
But if the income of the ward's estate is ample for payment
of the necessaries supplied him, the creditors may, by a proper
course of procedure, have it subjected to the satisfaction of their
just claims. And this too, it would appear, notwithstanding
any personal undertaking on the guardian's part.^ Not even
funds derived from a minor's pension, granted under the
United States laws, are exempt from liability for the ward's
support.^
On the other hand, the guardian may make himself liable
for his ward whenever he chooses to do so, like any one else
in loco parentis. And if a guardian contracts with another to
support his ward, he may become personally bound by his
failure to limit the right for indemnity to the estate in his
hands.^
receives their services, may be allowed
a reasonable sum for their support.
Latham v. Myers, 57 Iowa, 519. But
while something depends upon the com-
parative extent of the guardian's pri-
vate estate and that of his ward, tlie
guardian receiving the infant ward
into his family cannot appropriate the
ward's services and at the same time
charge for board, but it should be con-
sidered how far the one is a fair offset
to the other. Marquess v. Le Baw, 82
Ind. 550. If he agrees to support the
child in loro parentis, he cannot charge
board. Snover v. Prall, 38 N. J. Eq.
207 ; Horton's Appeal, 94 Penn. St. 62.
The guardian cannot charge his ward's
estate for money expended in board
and education, unless there was no
parent able or willing to provide, and
the estate justified the expenditure.
State V. Roclie, 91 Ind. 406.
Some State codes require that the
guardian of a minor who lias a father
or mother shall not expend anything
for the ward's support without a pre-
cedent order of court. 61 Miss. 148.
And see Stigler v. Stiglcr, 77 Va. 163.
As to orders authorizing expenditure
for tlie support of a lunatic, see Ham-
bleton's Appeal, 102 Penn. St. TO.
1 Barnum v. Frost, 17 Gratt. 398 ;
Walker v. Browne, 3 Bush, 686. Suit
498
on the probate bond by permission of
court is the common remedy in many
States. Cole v. Eaton, 8 Cush. 587.
2 Welch V. Burris, 29 Iowa, 186 ;
Brown's Appeal, 112 Penn. St. 18.
3 See Lewis v. Edwards, 44 Md. 333,
as to offsets for the services of the ward
to one who sues the guardian for his
board. On the principle of tlie text, a
case in Vermont was decided a few years
ago. The guardian had contracted for
the board of his ward, at a dollar and
a half a week, fixing no limitation as
to time. Tlie person furnishing the
board afterwards notified him tliat he
should raise the price to two dollars a
week, and that if this was not satisfac-
tory the ward must be taken away.
The guardian did not take the ward
away, nor on the other hand did he
expressly accede to the new contract.
But the court inferred from the cir-
cumstances that he had made himself
personally liable for the increased rate.
It was observed in this case that tlie
guardian has the possession and con-
trol of the ward's estate, for his sup-
port and maintenance, and has tlie
power of indemnifying himself for any
contracts he may make ; that it is his
business to know the amount and situ-
ation of the estate, and that he is not
obliged to incur any liability beyond
CHAP, v.] RIGHTS AND DUTIES OF GUARDIANS. § 337
For necessaries of his ward, supplied by the guardian's order
and on his credit, the guardian then is liable ; and this on the
principle to be noticed hereafter, that the guardian has made a
contract. A guardian, it is true, cannot bind his infant ward,
or the latter's estate by a contract, even for necessaries.^ But
he is of course entitled to reimbursement for the necessaries
thus supplied by himself from the ward's estate. So, where he
advances money for the ward's maintenance and education.^
On the ward's own contract for necessaries, the guardian is not
personally liable. And it would appear from some cases that
his knowledge of the ward's contract and failure to dissent will
not suffice ; in other words, that an express contract should be
shown to charge the guardian personally. Yet such a contract
of the ward may be ratified by the words or acts of a guardian ;
and we presume that he may generally be held bound on a con-
tract shown by strong implication to have existed between him
and the party furnishing education or support.^ As a rule the
guardian, if custodian of the ward's person, has the same right
to judge as to what are necessaries, according to the estate and
social position of his ward, that a parent would have for his
own child ; * and others who supply the minor are bound to
take heed accordingly.^ It is held that the guardian appointed
in one State may sue a foreign guardian for the support and
education of wards left with the former by consent of the
latter guardian.^ So, wherever a town is liable for the support
of a ward as a pauper, his guardian may claim reimbursement
for necessary expenses incurred after the ward's property has
been exhausted^ A guardian is presumed to furnish all neces-
it. If lie do so, it is his own fault, for 2 Smith's Appeal, 30 Penn. St. 397 ;
which otiiers, wlio cannot be so well Rollins v. Marsh, 128 Mass. 116; infra,
possessed of this knowledge, ought not c. 6.
to suffer. But the court also held that ^ Tucker v. McKee, 1 Bailej', .344 ;
under the above contract the guardian Hargrove v. Webb, 27 Ga. 172 ; Oliver
was not personally liable for extra v. Houdlet, 13 Mass. 237.
charges against the ward, such as re- * Nicholson v. Spencer, 11 Ga. 607 ;
pairs on clothing, washing, care and Kraker v. Byrum, 13 Rich. 163.
medical attendance while sick, and ^ McKanna v. Merry, 61 111. 177.
burial expenses. Hutchinson v. Hutch- ^ spring v. Woodworth, 2 Allen,
in son, 19 Vt. 437. 206.
1 Reading v. Wilson, 38 N. J. Eq. '^ Fisk r. Lincoln, 19 Pick. 47.3. See
443. Preble v. Longfellow, 48 Me. 279.
499
§ 338 THE DOMESTIC RELATIONS. [PART IV.
saries for his infant ward, and a stranger who furnishes them
must in general contract with the guardian himself. ^ But
where the guardian makes purchases, the party furnishing the
goods is not bound to see that payment is made from the
ward's income. This risk must be run by the guardian himself,
for the facts are within his own peculiar knowledge.^
§ 338. Same Subject ; Using Income or Capital, &c. — The
doctrine has been repeatedly declared that no guardian can ex-
pend more than the income of his ward's estate without proper
judicial sanction. This is the settled rule in chancery, and it
is universally applicable in the United States.^ And a similar
principle prevails under the civil law.'* But to what extent the
guardian renders himself personally liable, by exceeding the
income without previous sanction of the court, is not quite
clear. The English rule is undoubtedly strict. But as to pro-
bate guardians, and in modern practice, legal formalities have
been considerably relaxed ; though the rule is still that the cap-
ital should not be encroached upon without judicial leave, to
meet expenditures which are beyond the ward's means, however
suitable to his social position. In most of the United States
the guardian is, doubtless, justified in breaking the principal
fund, under strong or sudden circumstances of necessity, for
the benefit of his ward, and he may leave his conduct to the
subsequent approval of the court when he presents his ac-
counts. In cases of risk and uncertainty, however, the proper
course is to obtain a previous order.^
1 State I'. Cook, 12 Ired. 67 ; Roy- ness, 1 Gilm. 173 ; Davis v. Roberts, 1
ston V. Royston, 29 Ga. 82. Sm. & M. Ch. 543; Royston v. Roy-
- Broadus r. Rosson, 3 Leigh, 12; ston, 29 Ga. 82; Foteaux ii. Lepage, 6
Hutchinson r. Hutchinson, 19 Vt. 437. Clarke (Iowa), 123; Gilbert v. Mc-
3 In re Bostwick, 4 Johns. Ch. 100 ; Eachen, 38 Miss. 469 ; Phillips v. Davis,
Myers v. Wade, 6 Rand. 444; 2 J. J. 2 Sneed, 520; Cummins v. Cummins,
Marsh. 403; Villard v. Chovin, 2 29 111. 452; Cohen v. Shyer, 1 Tenn.
Strobh. Eq.40; State v. Clark, 16 Ind. Ch. 192. Some State codes lay down
97 ; Beeler v. Dunn, 3 Head, 87 ; 3 a strict rule concerning the previous
Dem. 140; Dowling v. Feeley, 72 Ga. sanction of the court to exceeding the
557. See Louisiana rule as to the au- ward's income. Boj'd v. Hawkins, 60
thority of a family meeting. 36 La. Miss. 277 ; 63 Miss. 143 ; Jones v. Par-
Ann. 312. ker, 67 Tex. 76. But in other States
* Payne )'. Scott, 14 La. Ann. 760. ratification by the court is equivalent
^ Story, Eq. Juris. § 1.355 ; Chapline to a previous authority. 113 Penn.
V. Moore, 7 Monr. 150; Davis v. Hark- St. 46.
500
CHAP, v.] RIGHTS AND DUTIES OF GUARDIANS. § 338
The order in which the ward's property should be expended
for his support and education is as follows : first, the income of
the property ; next, if that proves insufficient, the principal of
personal property ; lastly, if both are inadequate, the ward's
real estate, or so much of it as may be necessary. The ward's
real estate can never be sold, except under a previous order of
court. Nor can a guardian use, in maintaining his ward, the
proceeds of real estate sold for the purpose of reinvestment
only, any more than he could have used the real estate itself.
He should ask to sell for the purpose of maintenance.^
In some cases it becomes both reasonable and necessary to
exceed the ward's income, and the judicial sanction is granted
accordingly. Thus courts of chancery or even of probate author-
ize the capital to be broken upon, or, if need be, the whole
estate to be consumed, where the property is small and the
income inadequate for support.^ As where the ward's educa-
tion is nearly completed, especially if he will thereby be fitted
for a profession. Or where the ward is mentally or physically
unfit to be bound out as an apprentice.^ So, too, in case of
extreme sickness, or other emergency, or for the burial of a
dead ward, where an unusual and sudden outlay becomes nec-
essary.* And the guardian can anticipate the income of one
year in supplying the casual deficiency of another.^ And he
may treat an increase of value in his ward's property as in-
come.^ And he may use the accumulated profits of previous
years where necessary. A young lady who is a ward may be
allowed small sums by way of spending-money for her personal
needs, apart from what may be actually necessary to eat and
wear.'^ In short, the guardian is allowed a liberal discretion
in expenditures for maintenance and education, so long as he
1 Strong V. Moe, 8 Allen, 125; Rin- Eq. 290; Campbell v. Golden, 79 Ky.
ker V. Street, 33 Gratt. 6(53. See St. 544.
Joseph's Academy v. Augustine, 55 * Long u. Norcom, 2 Ired. Eq. 354;
Ala. 493. In re Clark, 17 E. L & Eq. 599 ; Hobbs
2 McDowell V. Caldwell, 2 McC. Ch. v. Harlan, 10 Lea, 268.
43 ; Farrance v. Viley, 9 E. L & Eq. 5 Carmichael v. Wilson, 3 Moll. 87 ;
219; Roseborough v. Roseborough, 3 Bybee y. Tharp, 4 B. Monr. 313.
13a xt. 314 ; 4 Dem. 304. ^ Long v. Norcom, 2 Ired. Eq. 354 ;
"* Johnston v. Coleman, 3 Jones Macphers. Inf. 337, 338.
7 Karney v. Vale, 56 Ind. 542.
601
§339
THE DOMESTIC RELATIONS.
[part IV.
refrains from encroaching upon the ward's capital ; ^ and iu
extreme cases may intrench u}:on the capital itself. And it
is held that he is limited in his disbursements, not to the
income of the ward's estate actually in his hands, but to the
income of the ward's estate wherever situated.^
§ 339. Allowance to Parent for Ward's Support ; Chancery
Rules. — As the father is bound to support his own children, he
cannot, when guardian, claim the right to use the income of
their property for that purpose ; much less to disturb the prin-
cipal. But, as we have seen, a father is allowed, when his
means are small, to claim assistance from their fortunes, to
bring them up in becoming style. And where the father,
when acting as guardian for his own children, might have
reimbursed himself, any other person, as guardian, may help
him ; rather, however, for the future than for the past.^
The allowance of money for the maintenance and education
of infants constitutes an important branch of the English as
1 Brown v. Mullins, 24 Miss. 204;
Speer v. Tinsley, 55 Ga 89.
2 Foreman v. Murray, 7 Leigh, 412 ;
Maclin v. Smith, 2 Ired. Eq. 371. And
see In re Coe's Trust, 4 K. & J. 199.
If the guardian pays money from the
principal of his ward's estate to a suit-
able person for the ward's support, and
the money is reasonably expended, he
cannot recover back the amount from
such person. Chubb v. Bradley, 68
Mich. 268.
3 Macphers. Inf. 219 ; Clark i^. Mont-
gomery, 23 Barb. 404 ; Beasley v. Wat-
son, 41 Ala. 284 ; Welch v. Burris, 29
Iowa, 186; Myers v. Wade, 6 Rand.
444 ; Walker v. Crowder, 2 Ired. Eq.
478. See supra, §§ 237-240. As to
parents, and those like a stepfather
who choose to stand in place of a par-
ent, the rules of maintenance which
liave already been stated apply as to
such allowances, in a guardian's ac-
counts. If the guardian, or the person
witli whose claim he charges himself,
was of adequate means, and bound le-
gally to maintain the child as parent or
fully undertook to supply the place of
parent, education and support cannot
602
generally be allowed from the ward's
estate. Bradford v. Bodfish, 39 Iowa,
681; Douglas's Appeal, 82 Pcnn. St.
169. The expense of past maintenance
is the less readily allowable. Folger v.
Heidel, 60 Mo. 284. Yet future main-
tenance is chargeable where the ward's
means were disproportionate to the
parent's and needful to provide in suit-
able style ; and even past maintenance
n)ay be thus allowed. Supra, Part
III. c. 2. And if one in place of
parent has undertaken the function
upon some such proviso, the ward's in-
come may be used. The circumstances
may always be considered, and the
proportionate means as between the
ward and the person fulfilling the pa-
rental functions. Voessing v. Voes-
sing, 4 Redf. 360. The ward's personal
service, if of value, is a proper credit
in allowing for maintenance. Starling
V. Balkum, 47 Ala. 314. The guardian
of an insane ward may properly charge
for the expense of boarding the ward
at an insane asylum ; the ward's estate
being sufficient for su(;h expenditure.
Corcoran c. Allen, 11 R. I. 567.
CHAP, v.] RIGHTS AND DUTIES OF GUARDIANS. § 339
contrasted with our American chancery jurisprudence. Gen-
erally speaking, whenever application is made for the appoint-
ment of a chancery guardian, maintenance is also applied for;
and the guardian receives no more than the annual sum fixed
by the court. The ward's whole fortune is held at the dis-
posal of the court, whether the infant was made a ward by suit
or otherwise. If a suit be pending, the guardian receives his
allowance through the receiver or some other officer of the
court. If there be no suit pending, the executor or trustee
pays the annual sum fixed by the court ; and if the whole pro-
ceeds of real estate be ordered for maintenance, the tenants are
safe in attorning to the guardian. But parties making payment
are discharged only to the extent of the allowance decreed.^
Testamentary guardians are, however, frequently authorized
by the testator to apply at discretion from the income of the
infant's fund, or from the capital, for his support ; and such
discretion will not be controlled so long as the guardian acts
in good faith. But trustees and guardians frequently procure
an order of maintenance, notwithstanding, in order to relieve
themselves of all responsibility.^ Doubts were formerly enter-
tained of the power of chancery to interfere in these and other
cases where the infant had not been made a ward of chancery
by suit. No such doubts now exist, however ; and the court
will, on petition, and without formal proceedings by bill, settle
a due maintenance.^
1 Macphers. Inf. 106 ; Ex parte Star- tlement of the guardian's accounts,
kie, 3 Sim. ^m. Chancery will con- Rinker v. Streit, 33 Gratt. 663.
trol the discretion of trustees as to 3 Story, Eq. Juris. § 1354, and cases
allowance. In re Hodges, L. R. 7 Ch. cited. And see Kettletas v. Gardner,
D. 754. 1 Paige, 488.
2 Macphers. Inf. 213 ; Livesey v. Trustees may be authorized by the
Harding, Taml. 460 ; French v. David- terms of the trust to expend a certain
son, 3 Madd. 396 ; Collins v. Vining, 1 sum for maintenance and support of
C. P. Cooper, 472. In Mississippi the children. It is generally understood
sum for maintenance and education that the expenses of education are
must be fixed in chancery. Dalton v. thus included. Breed's Will, 1 Ch. D.
Jones, 51 Mi.ss. 585. But as to per- 226. Trustees under a will thus au-
sonal estate, the American rule is thorized, and in effect testamentary
usually, that if the court would have guardians, are not compelled to pay
authorized the expenditure upon ap- over such moneys to a statute or pnv
plication before it was made, the ex- bate guardian. Capps v. Hickman, 97
penditure will be sanctioned upon set- 111. 429.
603
§ 340 THE DOMESTIC RELATIONS. [PART IV.
§ 340. Secular and Religious Education of "Ward by Guar-
dian. — Courts of chancery treat the guardian as the proper
judge of the place where his ward shall be educated, and will,
if necessary, issue orders to compel obedience. But if guar-
dians disagree as to the mode of their ward's education, the
court will exercise its own discretion and will not consider itself
bound by the wishes of the majority.^ Parol evidence of the
deceased father's wishes is admissible, and the court will pay
attention to such wishes, although informally expressed, in
judging of the mode of education of children as well as in the
appointing of a guardian.^
The subject of a child's religious education received much
consideration in a late English case, where, notwithstanding
the father's directions in his will appointing a testamentary
guardian who was, like himself, a Eoman Catholic, a daughter
nine years old was allowed to remain with her mother, a
Protestant, and to be brought up in the same religious faith ;
and this against the guardians wishes, tardily expressed. An
antenuptial agreement, made between the husband and wife,
stipulating that boys of the marriage should be educated in the
religion of the father, and girls in that of the mother, was
indeed declared of no binding force as a contract ; and yet it
was added that this agreement would have weight with the
court in considering, after the father's death, whether he had
abandoned his right to educate this daughter in his own reli-
gion. The welfare of the child was, under the circumstances,
deemed a very important consideration.^ In a still later case
chancery considered that it was most for the benefit of the
child to be educated as a Eoman Catholic*
1 Story, Eq. Juris. § 1340 ; Mac- children, so that the minor children
phers. Inf. 121 ; Tremain's Case, Stra. might not be taken to worship at a
168 ; Hall v. Hall, 3 Atk. 721. chapel of the " Plymouth Brethren."
2 Anon., 2 Ves. Sen. 56; Camp- And see In re Agar-EUis, 27 W. 11.
bell V. Mackay, 2 M. & C. 34 ; contra, 117 ; supra, Part III. c. 2, where the
Storke V. Storke, 3 P. Wms. 61. general subject of a child's education
^ Andrews v. Salt, L. K. 8 Ch. 622. and maintenance is discussed.
See Tn re Newbery, L. R. 1 Ch. 26.3, * Clarke AV, 21 Ch. D. 817. See
where the deceased father's wishes pre- also Montagu Re, 28 Ch. D. 82.
vailed, as against the mother and the
504
CHAP. VI.] EIGHTS AND DUTIES OF GUARDIANS. § 342
CHAPTER VL
rights and duties of the guardian as to the
ward's estate.
§ 341. In General ; Leading Principles. — We have Seen that
chancery guardians have only a limited authority over the
estates of their wards, inasmuch as the court makes a fixed
allowance, to be consumed in maintenance and education,
leaving the bulk of the infant's estate in the hands of executors,
trustees, or its own officers. In this country guardians almost
invariably assume the full management of their ward's fortunes,
unless restrained by the will of the testator; and whenever
they do so they are bound by the principles which regulate the
general conduct of all trustees.
The leading principle recognized by chancery in supervising
the guardian's conduct is, that the ward's interests are of par-
amount consideration. Hence two observations are to be made
at the outset of this chapter. The first is, that unauthorized
acts of the guardian may be sanctioned if they redound to the
ward's benefit ; while, on the other hand, for unauthorized acts
by which the ward's estate suffers, the guardian must pay the
penalty of his imprudence.^ The second is, that the guardian's
trust is one of obligation and duty, and not of speculation and
profit.^ We shall have occasion to apply these observations as
we proceed.
§ 342. Guardian's General Powers and Duties as to Ward's
Estate. — Among the most obvious powers and duties of the
guardian in the management of his ward's property are these :
To collect all dues and give receipts for the same. To procure
such legacies and distributive shares from testators or others as
1 Milner v. Lord Harewood, 18 Ves. Jr. 259 ; Capehart t-. Huey, 1 Hill Ch. 405.
2 2 Kent, Com. 229.
505
§ 34:3 THE DOMESTIC RELATIONS. [PART IV.
may have accrued. To take and hold all property settled upon
the ward by way of gift or purchase, unless some trustee is
interposed. To collect dividends and interest, and the income
of personal property in general. To receive and receipt for the
rents and profits of real estate. To receive moneys due the
ward on bond and mortgage. To pay the necessary expenses
of the ward's personal protection, education, and support. To
deposit properly and invest and reinvest all balances in his
hands. To sell the capital of the ward's property, change the
character of investments when needful, convert real into per-
sonal and personal into real estate, in a suitable exigency; but
not without judicial direction. To account to the ward or his
legal representatives at the expiration of his trust. And, in
general, to exercise the same prudence and foresight which a
good business man would use in the management of his own
fortunes, though under more guarded restraints.^
§ 343. Right to sue and arbitrate as to Ward's Estate. — The
right to collect a debt implies the right to sue. Hence the
guardian may, in the exercise of good discretion, and acting, if
need be, under competent legal advice, institute suits to recover
the ward's property.^ And this right extends to property
fraudulently obtained from the ward before the guardian's
appointment.^ But he must sue in general in the name of his
ward (except under qualifications to be noticed), and not in his
own name.^ And if he institutes groundless and speculative
suits, and is unsuccessful, or occasions a controversy over his
accounts through his own fault, he must bear the loss. So, too,
whenever his conduct shows fraud or heedless imprudence.^
Otherwise, he is entitled to his costs and legal expenses out of
the ward's estate.^ The rule in many States now is that the
guardian sues and is to be sued upon his own express contract
^ Genet v. Tallmadge, 1 Johns. Ch. ^ Somes v. Skinner, 16 Mass. 348.
3; Jackson v. Sears, 10 Johns. 4.35; * Longstreet v. Tilton, Coxe, 38;
Eiehelberger's Appeal, 4 Watts, 84; Sillings v. Bunigartiner, 9 Gratt. 273;
Swan V. Dent, 2 Md. Ch. Ill ; Cren- Vincent v. Starks, 45 Wis. 468.
shaw V. Crenshaw, 4 Rich. Eq. 14 ; ^ Brown v. Brown, 5 E. L. & Eq.
Chapman v. Tibbits, 33 N. Y. 289. 567 ; Savage v. Dickson, 16 Ala. 257 ;
•■2 Smith V. Bean, 8 N. H. 15; Shep- Blake v. Pegram, 109 Mass. 641 ; Spel-
herd v. Evans, 9 Ind. 2ri0; Southwest- man v. Terry, 74 N. Y. 448.
ern R. v. Chapman, 46 Ga. 657. « Re Flinn, 31 N. J. Eq. 640.
506
CHAP. VI.] RIGHTS AND DUTIES OF GUARDIANS.
343
touching the ward's estate, notwithstanding that an action in
general concerning the estate of a minor must be brought by or
against the minor who is represented by his guardian. And
in various instances the guardian may appear and make de-
fence for the ward; though in some States the older rule of
the English chancery is followed, which required a guardian
ad litem to make defence, the infant being the party sued.^
1 Taylor v. Kilgore, 33 Ala. 214 ; 1
Foster (N. H.), 204. In Louisiana no
suit can be prosecuted by or for an in-
sane person or minor except through a
curator or tutor. 35 La. Ann. 23.
Among the cases in wliich the guardian
has been allowed to sue in his own
name are the following : For non-pay-
ment of rent. Pond (;. Curtiss, 7 Wend.
45. For trespass on his ward's lands.
Truss y. Old, 6 Rand. 556; Bacon c.
Taylor, Kirby, .368. For intermeddling
with the issues and profits thereof.
Beecher v. Grouse, 19 Wend. 306. For
an injury to any property of the ward
in his actual possession. Fuqua v.
Hunt, 1 Ala. 197. Or wliere he has
the right of possession. Sutherland v.
Goff, 5 Porter, 508; Field v. Lucas, 21
Ga. 447. Or on a note payable to him-
self, as guardian, thougli given for a
debt due to the ward. Jolliffe v. Ilig-
gins, 6 Munf. 3 ; Baker v Ornisby, 4
Scam. 825 ; Thacher v. Dinsmore, 5
Mass. 299 ; Hightower r. MauU, 50 Ala.
495. Or, as it would appear, on his
express contract touching the ward's
estate. Thomas v. Bennett, 56 Barb.
197. As to statute provisions, see 41
Ark. 254. As to amending the writ,
see Weber r. Hannibal, 83 Mo. 262. As
to power of the general guardian of an
insane person, unlike an infant's guar-
dian ad litem, to waive objections to
the admission of testimony, see 81 Mo.
275.
But debts and demands of the ward
should in general be prosecuted in the
ward's name. And the guardian can-
not sue in his own name, after his fe-
male ward's marriage, for a debt due
her before such marriage. Barnet i;.
Commonwealth, 4 J. J. Marsh. 389.
Nor on a promise to the guardians of
the minor children of A. B. ; for this is
a promise to tiie wards. Carskaddcn
V. McGliee, 7 Watts & Serg. 140. Nor
on an award, although he had sub-
mitted to arbitration. Hutchins v.
Johnson, 12 Conn. 376. Nor where a
statute authorizes guardians to " de-
mand, sue for, and receive all debts
due '' their wards. Hutchins v. Dresser,
26 Me. 76. And see Hoare v. Harris,
11 111. 24; Fox V. Minor, 32 Cal. 111.
He cannot act on a petition for parti-
tion. Stratton's Case, 1 Johns. 509;
Totten's Appeal, 46 Penn. St. 301. Nor
subscribe a libel for divorce. Winslow
V. Winslow, 7 Mass. 96. He is some-
times authorized by statute, however,
to sue in his own name for the use of
the ward. Fuqua v. Hunt, 1 Ala. 197 ;
Longmire v. Pilkington, 37 Ala. 296;
Mebane v. Mebane, 66 N. C. -3.34. And
see Anderson r. Watson, 3 Met. (Ky.)
509 ; Hines v. Mullins, 25 Ga. 696. A
guardian in Georgia must be party
in an action to recover a legacy be-
queathed to his deceased ward. Beav-
ers V. Brewster, 62 Ga. 574. Guardian
for minor heirs allowed, in Texas, to
sue on a promissory note payable to
the ancestor, on showing that they are
the only iieirs, and that there has been
no administration. Roberts v. Sacra, 38
Tex. 580. Sed rju. For unlawful de-
tainer, and semble in all suits by guar-
dian for the benefit of the ward, the
action should be entitled in the ward's
name by guardian. Vincent v. Starks,
45 Wis. 4-58. A general guardian may
sue in his own name to recover an in-
fant's distributive share ; and separate
507
§343
THE DOMESTIC RELATIONS.
[part IV.
A guardian is now generally permitted to submit to arbitra-
tion questions and controversies respecting the property and
interests of his ward, and the award made in pursuance thereof
is binding on all parties.^ So he may compromise when acting
in good faith and sound discretion for the benefit of his ward.
Local statutes are found in aid of this right.
suits wliere tlicre are several infants so
entitled. Hauenstein v. Kull, 59 How.
Pr. 24. Cf. Jordan v. Donahue, 12 R. I.
199, and cases cited. And see Ankeny
V. Blackiston, 7 Or. 407. As to pro-
cedure in West Virginia, see Burdett v.
Cain, 8 W. Va. 282. In Illinois tJie
probate or statute guardian cannot
bring suits in relation to liis ward's
real estate, such as ejectment. Mulier
V. Benner, 69 111. 108. An action upon
an express contract made by a guar-
dian for his ward's benefit may be
brought by or against the guardian
personally. McKinney v. Jones, 55
Wis. 39.
Payment by the debtor to an unau-
thorized person cannot avail in defence
against tlie guardian's suit ; but as to
the defence of payment to the natural
guardian, cf. supra, § 255; also South-
western II. V. Chapman, 46 Ga. 557.
The right of action upon a note pay-
able to a guardian for money of the
ward passes, upon the guardian's death,
to his personal representative. Chit-
wood V. Cromwell, 12 Heisk. 658. And
so in general where he might, if alive,
have sued in his own name. lb.
A guardian is to be sued in person
upon notes executed by him in his
official cajiacity. See 1 Pars. Bills &
Notes, 89, 90 ; Thacher v. Dinsmore, 5
Mass. 299 ; § .345.
A guardian is not liable in assumpsit
for necessaries. Cole v. Eaton, 8 Cush.
587. Nor for labor performed on the
ward's buildings. Robinson i". Hersey,
60 Me. 225. But he may be sued upon
his own contract touching his ward's
estate. Stevenson v. Bruce, 10 Ind.
397. And judgment should then be
against him personally, and not against
the ward. Clark v. Casler, 1 Cart. (Ind.)
508
But on general
243. Where the judgment is to bind
the ward's property, suit should be
against the ward. Otherwise the prop-
erty of the guardian must be levied
upon, who will look to the infant's es-
tate for his own reimbursement. Tobin
V. Addison, 2 Strobh. 3; Clark v. Cas-
ler, 1 Smith (Ind.), 150. And see Ray-
mond V. Sawyer, 37 Me. 406 ; 68 Iowa,
122. As to conclusiveness of judg-
ments, see Morris v. Garrison, 27 Penn.
St. 226. Judgment against a person as
" guardian " is a judgment against him
personally, the additional words being
descriptive merely. No action lies
against a guardian upon the ward's
contracts or debts ; but suit should be
against tlie ward, who ma}' defend by
guardian. Brown v. Chase, 4 Mass.
439; WiUard v. Fairbanks, 8 R. I. 1.
In dower and partition proceedings a
guardian may appear for the ward, like
any guardian ad litem, in some States.
Rankin v. Kemp, 21 Ohio St. 651;
Cowan ('. Anderson, 7 Cold. 284 ; Miller
V. Smith, 98 Ind. 226 ; State v. Cayce,
85 Mo. 456. In Massachusetts a
ward's money may be reached by
trustee process against him or taken
on execution. Simmons v. Almy, 100
Mass. 2.39. In a suit against A. B. the
words " as he is guardian," &c., may
be rejected as surplusage. Rollins v.
Marsh, 128 Mass. 116.
Guardian and insane ward cannot be
sued jointly to recover a debt which
the ward incurred previous to the guar-
dian's appointment. Allen v. Iloppin,
9 R. I. 258.
1 Weed I'. Ellis, 3 Caines, 253 ; Wes-
ton V. Stewart, 11 Me. 326; Hutchins
('..Johnson, 12 Conn. 376; Goleman v.
Turner, 14 S. & M. 118; Strong v.
Beroujon, 18 Ala. 168.
CHAP. VI.] EIGHTS AND DUTIES OF GUARDIANS. § 344
principle the guardian's compromise of a baseless and unjust
claim would not be upheld in equity as against the ward, nor,
as it would seem, against the guardian himself, no blame attach-
ing to the latter.^ An infant cannot, in any event, be bound
by the fraudulent compromise of his guardian ; ^ though he
would be commonly by a compromise made in good faith and
with reasonable prudence.^ On the same general principles, and
with like limitations, the guardian may release a debt due his
ward, or cause of action for damages.* The same rule as to
compounding and releasing debts appears to prevail in England
as in this country ; and it applies to all trustees alike.^ The
original doctrine apart from statute seems to be this : that he
cannot bind his ward by arbitration unless the court shall pre-
viously authorize him to do so, or subsequently approve, on the
ground that it was for the ward's benefit.^
§ 344. Whether Guardian can bind Ward's Estate by his Con-
tracts. — A guardian, it is said, cannot by his general contracts
bind the person or estate of his ward.'^ Nor can he avoid a
beneficial contract made by his infant ward.^ Nor waive a
benefit to which the ward is entitled by decree.^ For anything
which he does injurious to the infant is a violation of duty, and
the insertion, in a contract, of words importing the title " guar-
dian " will not shield the guardian from personal liability. In
the language of Chief Justice Parsons : " As an administrator
cannot by his promise bind the estate of the intestate, so neither
can the guardian by his contract bind the person or estate of
his ward." ^^ But the rule is, after all, a technical one ; for the
1 Underwood v. Brockman, 4 Dana, be charged thereby with new liabilities.
309. Smith V. Angell, 14 R. I. 102.
2 Luiiday v. Thomas, 26 Ga. 5.37. * Torry v. Black, 58 N. Y. 158.
3 Ordinary v. Dean, 44 N. J. 64. 5 Blue v. Marshall, 3 P. Wms. 381.
Compromise or release under the sane- ^ The tutor of an infant cannot con-
tion of the court having jurisdiction of fess judgment or revive a debt which
the guardiansliip is allowed under some is prescribed. Clement v. Sigur, 29
codes, and the guardian who obtains it La. Ann. 798; Metcalfe v. Alter, 31
is more amply protected than where he La. Ann. 389.
acts on his own responsibility. See '' Jones y. Brewer, 1 Pick. 317 ; Ten-
Hagy V. Avery, 69 Iowa, 434, as to ex- ney i'. Evans, 14 N. H. .343.
ecuting a quitclaim deed for land in ^ Oliver v. Houdlet, 13 Mass. 237.
litigation under the court's direction. And see Bac. Abr. Guardian (G).
And see compromise upheld, under ** Hite v. Hite, 2 Rand. 409.
statute, even though the ward's estate i" Forster v. Fuller, 6 Mass. 68.
509
§ 344 THE DOMESTIC RELATIONS. [PART IV.
insertion of words showing representative capacity imports that
the contract was made as a trustee. And on all such contracts,
fairly made, the guardian is entitled to reimbursement from his
ward's estate. It is simply meant that the person with whom
the guardian contracts on behalf of his ward may presume a
sufficiency of assets. In other words, the guardian's duty is to
bring up the ward suitably ; and if in the performance of his
duty it becomes necessary for him to enter into contracts, they
impose no duty on the ward, but bind the guardian personally
and alone. If one acting in a trust capacity could claim exemp-
tion from all personal liability, on the ground that there was
none of the ward's property left in his hands for payment, he
might abuse his privileges. His knowledge of the exact state
of the trust fund and his power of management would give him
an immense advantage over the other contracting party. Hence
the propriety of the rule that guardians are personally bound
on their contracts, in dealing with others on the ward's behalf,
while in turn they get a recompense from the estate by charg-
ing their expenses to the ward's account, to be passed upon by
the court ; in which sense of a reimbursement alone, whether in
law or equity, can it be said that the ward is liable, since the
guardian can put no contract obligations upon his ward. The
insertion of words implying a trust becomes, therefore, essential
in determining whether a contract was intentionally made by
the guardian on his own personal account. If the guardian
contracts a debt for his ward's benefit, he becomes, in this
sense, personally liable ; and this, even though the debt be for
necessaries.^ Where, however, the guardian's contract with the
creditor shows an express limitation of his liability, by mutual
assent, to the assets of the ward in the guardian's hands, it
would appear that the guardian incurs no personal liability
1 Sirams v. Norris, 5 Ala. 42 ; Rol- ing appointed guardian of B., an in-
lins V. Marsh, 128 Mass. 166. And see sane person, promised to pay an asylum
snprn, §§ 337, .338, as to the ward's for B's board and supplies. It was
necessaries. Sperry v. Fanning, 80 111. held that though A. resigned after
371. A guardian should take heed his appointment and a new guardian
what contract he makes, and provide was appointed, A.'s personal liability
for terminating it properly. In Mass. under the contract had not been ter-
General Hospital v. Fairbanks, 1-32 minated.
Mass. 414, A., in anticipation of be-
510
CHAP. VI.] RIGHTS AND DUTIES OF GUARDIANS. § 347
beyond such assets,^ though he cannot thereby bind the ward's
person or estate absolutely .^
§ 345. Title to Promissory Notes, &c. ; Promise not Collateral.
— The title to promissory notes made payable to the guardian
is 'pri7na facie in him. And this is true though the ward come
of age pending a suit on such notes, or otherwise the guardian's
authority has ceased. Hence he may maintain suit, unless the
defendant can show that it has been transferred to the successor,
or otherwise disprove title.^ The guardian may, however, in-
dorse over such note on tlie cessation of his authority ; in which
case the person in lawful possession should sue. So, too, the
guardian may, after his ward's death, transfer a note for the
ward's money, payable to tlie ward or bearer, to a third person
for collection.* But a note which evidences a debt due the
guardian in his own individual capacity is not properly a part
of the ward's assets ; and a successor in the trust who accepts
such a note from his predecessor is held liable as for a breach
of his trust where the note proves uncollectible.^
The promise of a guardian to pay his ward's debts is not col-
lateral, within the statute of frauds ; and therefore it need not
be expressed in writing.^ And where a guardian, on svirrender-
ing his trust, transfers to his successor a debt due the ward, this
is sufficient consideration to support the promise of the latter to
pay the former guardian's debt."
§346. Guardian's Employment of Agents. — Under suitable
circumstances a guardian may employ other agents than attor-
neys at law, and charge their compensation in his accounts.^
§ 347. Changes in Character of "Ward's Property ; Sales, Ex-
changes, &c. — Conversions — that is to say, changes made in the
1 Sperry v. Fanning, 80 111. .371. '' French v. Thompson, 6 Vt. 54 ; cf.
2 Rollins V. Marsh, 128 Mass. 116; 47 Ala. .329.
Reading v. Wilson, .38 N. J. Eq. 446. 8 R^ Flinn, 31 N. J. Eq. 640 ; sxiprn,
■* Chambles v. Vick, 34 Miss. 109; § 343. A natural tutrix of minors.
Fountain v. Anderson, 33 Ga. 372 ; duly appointed, is bound to prosecute
King V. Seals, 45 Ala. 415 ; Gard v. a legal claim on their behalf, and lier
Neff, 39 Ohio St. 607. contract with counsel concerning com-
^ Fletcher i: Fletcher, 29 Vt. 98. pensation for service is within her
5 State I'. Greensdale, 106 Ind. 364, powers. Taylor v. Bemiss, 110 U. S.
and cases cited. 42. That an employed attorney must
^ Roche V. Chaplin, 1 Bailey, 419. look to the guardian for his compen-
sation, see 5 Dem. 56.
511
§ 347 THE DOMESTIC RELATIONS. [PART IV.
character of trust property, from personal into real, or real into
personal estate — are never favored, especially where the natural
consequence would be to vary rights of inheritance. The pre-
vious sanction of chancery should always be sought ; and this
is only given under strong circumstances of propriety. As a
rule the guardian may not convert his ward's personal estate
into real estate without the previous sanction of chancery, nor
may the vendor enforce a lien.^ The same may be said with
less force of exchanges of the ward's property. Courts are
reluctant to disturb the property of those who are only tem-
porarily disabled from assuming full control. Sales of real
estate are in general only partial, and for necessary purposes.
But sales and exchanges of personal estate are very common.
And the guardian may sell personal estate for the purposes of
the trust without a previous order of court, provided he acts
fairly and with good judgment ; though his safer course is to
obtain permission. But sales of the real estate of the ward
would be extremely perilous, if not absolutely void, unless
previous authority had been obtained. Undoubtedly, they
could not bind the ward under such circumstances. Nor is
the guardian permitted to sell first and obtain judicial sanction
afterwards. Nor to contract to sell at his own instance.^ So
the guardian must not buy land with the infant's money with-
out the direction of chancery. And having obtained permission
to do so, he is bound to exercise good faith and seek his ward's
best interests.^
But a practical conversion takes place where the guardian
uses the trust money in paying off the ward's mortgage debts.
He is bound to apply rents and profits in keeping down the
interest on such encumbrances ; nor can he, in general, invest
personal estate more judiciously than in freeing the land from
1 Boisseau v. Boisseau, 79 Va. 73. Ves. 278 ; Holbrook v. Brooks, 33
2 Thacker v. Henderson, 69 Barb. Conn. 347; Royer's Appeal, 11 Penn.
271; ne.xt chapter. St. 36; Woods v. Boots, 60 Mo. 546
3 Macpliers. Inf. 278e^se9. ; 2Kent, Ex parte Crutchfield, 3 Yerg. 336
Com. 228-2.30, and notes ; Story, Eq. Dorr, Petitioner, Walker Eq. 145
Juris. § 1357; 3P. Wms. 101 ; /:;.r/)rtr-te Kendall v. Miller, 9 Cal. 591. See
Phillips, 19 Ves. 122 ; Skelton v. Ordi- Harris v. Harris, 6 Gill & Johns. Ill ;
nary, 32 Ga. 266 ; Ware v. Polhill, 11 Davis's Appeal, 60 Penn. St. 118.
612
CHAP. VI.] EIGHTS AND DUTIES OF GUAEDIANS. § 347
debt altogether.^ An order of court is not necessary in such
cases, nor for judgment debts, but it would be required for dis-
charging other than direct encumbrances.^ So, too, a guardian
may redeem his ward's estate from foreclosure.^ The statutes
of most American States have greatly altered the law on the
subject of conversions, so as not only to facilitate the sale of
real estate belonging to cesHiis que trust, but to enable their
fiduciaries, under judicial authority, to make specific per-
formance of contracts and to release vested and contingent
interests.*
Wliere, at the time the court orders the sale or purchase of
real estate by the guardian, the conversion was beneficial to the
ward, it would appear that the guardian is not made liable if
such conversion afterwards turns out injurious.^ But whether an
order of court would protect conduct notoriously imprudent, as
if there should be a sudden and marked decline in the value of
the land from some cause not within the consideration of the
court at the time of issuing the order, and such as would have
been sufficient for its revocation, and the guardian, neverthe-
less, goes on and makes the sale at a sacrifice, may well be
doubted.^
Where a guardian purchases, on behalf of his ward, a house
and lot expressly subject to a mortgage, he becomes personally
liable for the amount of the unpaid debt ; even though he had
been authorized by the court to make the purchase. But the
court will afford him relief from the ward's estate." In an Eng-
lish case, where a guardian borrowed money to pay off encum-
brances on the ward's estate and promised to give the lender
security, but died before doing so, the court refused to decree
1 Macphers. Inf. 285 ; March v. Ben- cumbent upon a guardian by virtue of
nett, 1 Vern. 428 ; Jennings v. Looks, his trust to sell land or foreclose, under
2 P. Wms. 278. a mortgage which he holds as an in-
2 Palmesi'. Danby, Prec.in Ch. 137; vestment for his ward, in which case
S. c. 1 Eq. Ab. 261 ; Waters v. Ebral, the usual rules of trusteeship apply.
2 Vern. 606. Taylor i'. Kite, 61 Mo. 142.
3 Botham v. M'lntier, 19 Pick. 346 ; ^ Bonsall's Case, 1 Rawle, 266.
Marvin r. Schilling, 12 I\Iich. 356. 6 gee Harding v. Lamed, 4 Allen,
But see Sheahan v. Wayne, 42 Mich. 426.
69. '' Woodward's Appeal, 38 Penn. St.
* See next chapter. It may be in- 322 ; Low v. Purdy, 2 Lans. 422.
33 513
§ 348 THE DOMESTIC RELATIONS. [PART IV.
specific performance ; though the lender's money had been duly
applied for that purpose. ^ Here, however, there had been no
written contract.^
§ 348. Limit of Guardian's Responsibility in Management. —
It is a general principle that acts done by a guardian without
authority will be protected and will bind the infant, if they
turn out eventually beneficial to the latter ; but the guardian
' does such acts at his own peril. The transaction will perhaps
avail as between the guardian and third parties ; but the infant,
on arriving at majority, may usually disaffirm it altogether, and
require the guardian to place him in statu qvo.^ This risk is
restricted to unautliorized acts ; for no guardian can be an in-
fallible judge of what is beneficial to his ward ; and to make
him liable in ordinary cases, beyond the limits of good faith and
a sound discretion, would be intolerable. Hence, as judicial
control becomes relaxed, the guardian's unauthorized acts may
fairly be considered as lessening in number and importance,
save so far as local statutes prescribe the rule, as they fre-
quently do. Where the guardian acts under judicial sanction,
what he does in good faith receives strong protection.* The
guardian is bound for ordinary diligence if compensated, and
for slight diligence at all events, on the usual footing of a
bailee of property.
It is to be observed, however, that chancery not only punishes
corruption, but treats with suspicion all acts and circumstances
evincing a disposition on the guardian's part to derive undue
advantage from his position. This rule is applicable to trustees
in general. The trust should be managed exclusively in the
interest of the cestiii que trust ; or, in case of guardianship, for
the ward's benefit. The guardian cannot reap any benefit from
the use of the ward's money. He cannot act for his own bene-
fit in any contract or purchase or sale as to the subject of the
trust. If he purchases in his character as guardian, he pre-
sumptively uses his ward's funds for that purpose. If he
settles a debt upon beneficial terms, or purchases it at a dis-
1 Hooper v. Eyles, 2 Vern. 480. to the guardianship, see McCall v. Flip-
2 As to applying money inpayment pin, 58 Tenn. 101.
for land, where the title vested prior ^ Macphers. Inf. 3o0 ; infra, § 385.
< See xMcElheny v. Musick, C3 III. 329.
614
CHAP. VI.] RIGHTS AND DUTIES OF GUARDIANS. § 348
count, the advantage is to accrue entirely to the ward's estate.^
He cauuot be permitted to place himself in an attitude of hos-
tility to his ward, or derive any benefit from the latter's loss.^
Wherever he abuses the confidence reposed in him, he will be
held to a strict accountability.^ Where the guardian purchases
for himself at sales of his ward's property, his conduct will be
closely scrutinized. But where no fraud appears, and the sale
appears beneficial to the ward, the more reasonable doctrine is
that the transaction is sustainable in equity, subject to the
ward's subsequent election, on reaching majority, to disaffirm
the sale. The guardian, meanwhile, takes the legal title ; more
especially if the sale was conducted through a third party, who
afterwards conveyed to him.*
The guardian is not to apply property exempt from attach-
ment or execution in satisfaction of his ward's debts.^ He must
not mingle his own funds with those of his ward. Where
there are several wards, he must allot to each his due share of
expenses and profits. And if he becomes insolvent, and gives
the bulk of the property received by him to one, and little or
nothing to the others, equity will still treat the property as
belonging to the wards in their proper shares.^
So far as the guardian acts within the scope of his powers he
1 White V. Parker, 8 Barb. 48 ; 2 Terry, 15 N. Y. Supr. 205. If the guar-
Kent, Com. 229 ; Diettrich v. Heft, 5 dian has a life interest in land of which
Barr, 87 ; Clowes v. Van Antwerp, 4 the ward is seised in fee, he cannot
Barb. 416 ; Lefevre v. Laraway, 22 apply tlie whole cost of removing an
Barb. 168; Kennaird f. Adams, 11 B. encumbrance to the ward, principal and
Monr. 102 ; Sparhawk v. Allen, 1 Fos- interest. Bourne v. Maybin, .3 Woods
ter (N. H.) U; Heard i'. Daniel, 26 C. C. 724.
Miss. 451 ; Jennings v. Kee, 5 Ind. 257 ; * Ex parte Lacey, 6 Ves. 625 ; Le-
inj'ra, c. 9. fevre r. Laraway, 22 Barb. 168 ; Chor-
^ Mann v. McDonald, 10 Humph, penning's Appeal, 32 Penn. St. 315;
275. Hoskins v. Wilson, 4 Dev. & Batt.
3 As a guardian must not reap un- 243 ; Blackmore v. Shelby, 8 Humph,
due benefit, he cannot make a collusive 439; 16 Lea, 732; 61 Miss. 766;
sale or improve the property for his Hudson v. Helmes, 23 Ala. 585. But
own benefit. Lane v. Taylor, 40 Ind. see Beal v. Harmon, 38 Mo. 435. See
495. He must not derive profit by infra, ch. 9. In Missouri, under the
setting fictitious values, but account Spanish laws, the guardian might pur-
according to true valuations. Titles chase lands of his ward by the court's
alverse to the ward's interest cannot permission. M'Nair iv Hunt, 5 Mo. 300.
be disposed of for his own benefit and ° Fuller v. Wing, 5 Shep. 222.
to the ward's detriment. Spelman *;. ^ Case of Hampton, 17 S. & K. 144.
515
§ 349 THE DOMESTIC RELATIONS. [PART IV.
is bound only to the observance of fidelity, and such diligence
and prudence as men display in the ordinary affairs of life.
And in absence of misconduct his acts are liberally regarded.
He is not liable for investments carefully made, which after-
wards prove worthless ; nor where he deals with failing debtors
prudently under all the circumstances, though good security be
not available and a loss finally occurs.^ Nor is he responsible
for funds of which he was robbed without his fault/'^ But for
any fraudulent transaction to which he lends himself he must
suffer the consequences.^ And if by his negligence the estate
has suffered loss, he must make good the deficiency.^ What
acts amount to fraud or culpable negligence will depend upon
circumstances. Ignorance of duty is equivalent to misconduct,
where the ward's interests suffer by it.^ And a sale of the
ward's rights of property at a grossly inadequate price, upon
the guardian's own responsibility, may be afterwards set aside
at the instance of the ward.^ Unauthorized acts which turn
out ill for the ward are not protected.'
§ 349. The Same Subject. — The guardian of an insane adult
ward cannot lawfully continue the ward's business, so as to
charge it with losses thereby incurred.^ But where he does so
beneficially, the ward, by acceptance of the benefits after be-
coming sui juris, may be estopped from objecting.^ A ward's
property should not be subjected, at the guardian's instance, to
the hazards of business, nor should a probate court confer any
such authority .^^
The guardian's responsibility extends only to such property
of his ward as is accessible to him. But having once come into
possession, or gained knowledge of his right of possession, it is
his duty to account for the property ; for the law then imposes
1 Barney r. Parsons, 54 Vt. 623; 88 ^ Nicholson's Appeal, 20 Pcnn. St.50.
N. C. 164; Lamar v. Micou, 112 U. S. ^ Leonard v. Barnum, 34 Wis. 105.
452. ' May v. Duke, 61 Ala. 53; McDuf-
2 Furman v. Coe, 1 Caines' Cas. fie v. Mclntyre, 11 S. C. 551.
96; Atkinson u.Wliitcliead. 66 N.C 296. « Corcoran v. Allen, 11 R. I. 567.
3 McCahan's Appeal, 7 Barr, 56. 9 Hoyt v. Sprague, 103 U. S. Supr.
* 2 Kent, Com. 230 ; Glover v. Glo- 613.
ver, 1 McMull. 153 ; Royer's Appeal, ^'^ Michael v. Locke, 80 Mo. 548.
11 Penn. St. 86; Wynn v. Benbury, 4 And see Bush v. Bush, 33 Kan. 556;
Jones Eq. 396. Carter v. Lipsey, 70 Ga. 417.
516
CHAP. VI.] RIGHTS AND DUTIES OF GUARDIANS. § 350
upon him a prima facie liability.^ And the fact that money-
was collected in another State beyond his jurisdiction cannot
affect his obligation to account. But where assets never reach
his hands from another State or country, the question is whether
he used such diligence in attempting to collect as a prudent busi-
ness man would usually exercise under such circumstances.^
Courts of equity follow the ward's property whenever wrong-
fully disposed of or appropriated by the guardian ; and any
person in whose hands it is found will be held as trustee, if it
can be shown that it came into his possession with notice of
the trust.^ The guardian himself may follow his ward's prop-
erty wherever he can find it, whether into the hands of a former
guardian or such guardian's transferee.* And legacies charged
on land and payable to the ward on reaching majority, though
paid meanwhile to his guardian, remain a lien on the land until
actually received by the ward.^ Innocent third parties are not
affected by the guardian's fraud ; and the usual barrier applies
as to negotiable securities.^ But in general, where third parties
neglect to make reasonable inquiries as to facts which ought to
have raised suspicion in their minds, they may have to suffer for
their imprudence.^
§ 350. Management of Ward's Real Estate in Detail. — The
guardian has the management and control of his ward's real
estate so long as his general authority lasts. It is his duty to
collect the rents for the benefit of his w^ard, in which connec-
tion he may, according to custom, employ a real-estate agent or
collector.^ He may avow for damage feasant, sue for nonpay-
ment of rent, and bring trespass and ejectment in his own name.
This was the common-law rule as to guardians in socage, and it
still applies to testamentary, chancery, and perhaps to probate
guardians. The recognized principle is that such guardians
have an authority coupled with an interest, and not a bare
1 Bethune v. Green, 27 Ga. 56 ; & Cato v. Gentry, 28 Ga. 327.
Howell V. Williamson, 14 Ala. 419; ^ gee Gum v. Swearingen, 69 Mo.
Martin v. Stevens, 30 Miss. 159. 553; 2 Schouler, Pers. Prop. 23.
=2 Harris v. Berry, 82 Ky. 137. ^ Gale v. Wells, 12 Barb. 84 ; Hun-
3 Carpenter v McBride, 3 Fla. 292. ter v. Lawrence, 11 Gratt. Ill; Bevis
See McCall r. Flippin, 58 Tenn. 161. v. Heflin, 63 Ind. 129.
« Fox V. Kerper, 51 Ind. 148. ^ Re Flinn, 31 N. J. Eq. 640.
517
§ 350 THE DOMESTIC KELATIONS. [PAKT IV.
authority.^ A guardian makes himself personally liable where
he permits others to negligently collect the rents, or occupies
the premises himself, or suffers the premises to remain unoccu-
pied, or wilfully or carelessly permits others to occupy them to
the ward's detriment ; ^ and in the exercise of ordinary business
discretion he is liable for his ward's rents which were or should
have been collected.^
The guardian may also lease his ward's lands. But his demise
cannot last for a longer period than the law allows for the con-
tinuance of his trust. And it will determine upon the ward's
death in any event. A lease made by a guardian, extending
beyond the minority of his ward, was once considered void ; but
the modern rule treats such leases as void only for the excess at
the election of the ward.* The same principles apply to guar-
dians of insane persons and spendthrifts. And the rule em-
braces assignments of the ward's leases.^ The guardian must
not lease imprudently, nor so as to sacrifice his ward's interests
for tlie benetit of others.*^ The father, as natural guardian, can-
not lease the land of his child ; nor can the mother ; nor can
any mere custodian of the person.' So, too, guardians may take
premises on lease. And though the words "A. and B., guar-
dians " of certain minors, are used in a lease, the guardians are
personally, bound to the lessor to pay the rent.^ The guardian's
1 Shaw V. Shaw, Vern. & Scriv. 607 ; * Bac. Abr. Leases, I. ; 2 Kent, Com.
Bacon i-. Taylor, Kirby, 368; 2 Kent, 228; 1 Washb. Real Prop. 307; Rex
Com. 228 ; Torry r. Black, 58 N. Y. v. Oakley, 10 East, 494 ; Putnam v.
185; Pondv. Curtiss, 7 Wend. 45; Huff Ritchie, 6 Paige, 390; Field v. Schief-
w. Walker, 1 Cart. 193. And see O'Hara felin, 7 Johns. Ch. 150; People v.
V. Sheplierd, 3 Md. Ch. .306. But sucli Ingersoll, 20 Hun, 316 ; Richardson v.
suits cannot in Illinois be brought by a Richardson, 49 Mo. 29. See statute
probate or statute guardian, and un- restriction in Muller v. Banner, 69 HI.
der local statutes different rules ap])ly. 108; 58 Iowa, 308.
Muller V. Benner, 69 HI. 108; Wallis & Ross v. Gill, 4 Call, 250.
V. Bardwell, 126 Mass. 366. Statute « Knotlie ?;. Kaiser, 5 Thomp. & C. 4;
restrictions upon investment and main- Thackray's Appeal, 75 Penn. St. 132.
tenance are found. 62 Tex. 242. See '' Anderson v. Darby, 1 N. & McC.
§34.3. 369; Magruder v. Peter, 4 Gill &
2 Wills' Appeal, 22 Penn. St. 325 ; Johns. 323; Ross v. Cobb, 9 Yerg. 463.
Clark y. Burnside, 15 111. 62; Hughes' See Drury v. Conner, 1 Har. & G.
Appeal, 53 Penn. St. 500 ; Spelman v. 220.
Terry, 74 N. Y. 448. » Hannen r. Ewalt, 18 Penn. St. 9-
8 Peale v. Thurman, 77 Va. 753. See Snook v. Sutton, 5 Halst. 133.
518
CHAP. VI.] EIGHTS AND DUTIES OF GUAEDIANS. § 350
power to lease extends only to usufruct, and not to exhaustion
of the corpus.^
Where a guardian cultivates his ward's farm instead of letting
it out, he is bound to cultivate as a prudent farmer would his
own land ; otherwise the loss by depreciation of the property in
value must be made good by him.^ And for losses occurring
through his bad management of his ward's real estate, he can-
not expect to be recompensed.^ In the exercise of due prudence
he may let out his ward's lands for raising a crop on shares.*
If he occupy the premises personally, he should account for
rent.^
The guardian may grant an easement in his ward's lands ;
but it is of no avail beyond the limit of his guardianship.^ He
may authorize the cutting of standing timber, and allow others
to carry it away," though not so as to authorize a waste of the
corpus.^ But his license should be given in all cases for his
ward's benefit, and so with the receipt of damages for another's
trespass.^ And if trees are cut and carried away by his permis-
sion, so that trespass cannot be maintained, he must make com-
pensation to the ward.^*' A guardian having the means should
with due prudence insure buildings, pay taxes and assessments
on his ward's lands, and keep the premises in tenantable
condition. ^1
Guardians may assign dower. And it seems that the guar-
1 Thus, a guardian cannot lease oil v. Hamilton County, 39 Ohio St. 58.
or mineral lands for the purpose of And see Indiana R. v. Brittingham, 98
working out the product. Stoughton's Ind. '294. As to his authority acting
Appeal, 88 Penn. St. 198. under orders of a competent court to
2 Willis V. Fox, 25 Wis. 646. dedicate lands to the public for streets,
2 Harding v. Larned, 4 Allen, 426. etc., see Indianapolis v. Kingsbury, 101
The approval of the Probate court is Ind. 200. He cannot waive his ward's
not, in Illinois, essential to the validity homestead rights. 64 Iowa, 467.
of the guardian's lease ; unless so dis- "^ Fonbl. Eq. Tr. 82, n. ; Thompson
approved, the lease is good. Field «. v. Boardnian, 1 Vt. 367 ; Bond v. Lock-
Herrick, 101 111. 1 10. Cf. 58 Iowa, 308. wood, 33 111. 212.
^ Weldon v. Little, 53 Mich. 1. « Torry v. Black, 58 N. Y. 185.
s 34 Hun, 542. ^ lb.
« Walkins v. Peck, 13 N. H. 360 ; " Truss v. Old, 6 Hand. 556.
Johnson v. Carter, 16 Mass. 443. Un- ^^ For loss imprudently caused by a
der Oiiio statutes, a guardian can- tax sale the guardian is liable, unless
not grant a right of way througli the ward become of age before the
land owned by his wards without au- sale. Shurtleff v. Rile, 140 Mass. 213.
thority from the probate court. State See 61 Iowa, 375.
519
§ 351 THE DOMESTIC RELATIONS. [PART IV.
dian's assignment will bind the heir, although Blackstone and
Fitzherbert state the law otherwise.^ The deed of a married
woman, guardian of infants, in such capacity, does not convey
her right of dower.^ Guardians may also institute proceedings
for partition. Such proceedings, in England, should be by bill
in equity.^ In this country the subject is commonly regulated
by statute. A guardian may purchase for his ward, who is one
of the heirs, such portion of an estate as the other heirs refused
to take on partition, and the court ordered to be sold.^
§ 351. The Same Subject. — From what has been already
said, it appears clear that the guardian may execute all the
deeds and other writings necessary to the fulfilment of his trust.
But such instruments should be signed in the name of his
ward.^ On the same principle that agents and trustees are
personally bound when they exceed their authority, a guar-
dian makes himself personally liable for stipulations which
he has no right to insert in a deed, and for authorized cove-
nants, so badly worded that they fail to bind the ward's es-
tate ; but not, it would appear, for implied covenants merely.^
Where a married woman has executed a deed as guardian, it
would seem, on principle, that the joinder of her husband is
unnecessary.'''
It is the guardian's duty to keep the ward's premises in
repair, and he may use cash in his hands for that purpose
within reasonable limits.^ But he cannot build or make ex-
pensive permanent improvements without a previous order
from a court of equity, which is to be construed strictly.^
And where he advances money for such purposes, without
first obtaining an order, it would appear that he is without a
1 2 Bl. Com. 136 ; Fitzh. N. B. 348 ; ^ Whiting v. Dewey, 15 Pick. 428 ;
1 Washb. Real Prop. 226 ; Jones v. Webster v. Conley, 46 111. 13.
Brewer, 1 Pick. 314 ; Young v. Tarbell, '' Palmer v. Oakley, 2 Doug. 438.
37 Me. 509 ; Curtis v. Hobart, 41 Me. An infant's guardian may accept deliv-
230 ; Boycrs v Newbanks, 2 Iiwl. 388 ; ery of a deed of conveyance to his
Clark V. Burnside, 15 111. 62. ward. Barney v. Seeley, 38 Wis. 381.
^ Jones V. HoUopeter, 10 S. & R. ^ See Robinson v. Hersey, 60 Me.
326. 225.
8 Macphers. Inf. 340. » Payne v. Stone, 7 S. & M. 367 ;
* Bowman's Appeal, 3 Watts, 369. Miller's Estate, 1 Penn. St. 326. And
6 Hunter v. Dashwood, 2 Edw. Ch. see Powell v. North, 3 Ind. 392; Lane
415. V. Taylor, 40 lad. 495.
520
CHAP. VI.] EIGHTS AND DUTIES OF GUARDIANS. § 352
remedy .1 But the court will sometimes protect such expen-
ditures, on the ground that the ward has received a benefit
thereby .2 And this seems the more reasonable doctrine, though
not clearly recognized in this country. Authority granted to
expend a certain sum for this purpose is no authority to exceed
that sum, though it should prove inadequate.^ Nor has the
builder any lien upon the ward's real estate for such excess.*
A guardian's stipulation, in his lease of the ward's lands, to pay
for improvements, will not bind the ward.^
Stock and farming utensils on the ward's farm are prima facie
the ward's property, as against a guardian who has carried on the
farm in person.^ But this does not exempt from attachment
property of the guardian which he purchases and places upon the
ward's lands ; for the question of title is always open to proof. '^
The guardian's power to borrow money on a mortgage of his
ward's lands, and to create liens upon it generally, is regarded
with very little favor. He could hardly make the mortgage
operate beyond the minority of his ward, at any rate, if the
ward, on reaching majority, elected to disaffirm it ; and his only
safe course would be to secure the previous permission of the
court ; which American statutes generally permit to be done on
special proceedings.^
§ 352. Management of the Ward's Personal Property in
Detail. — As to personal property, one of the first duties of all
1 Hassard v. Rowe, 11 Barb. 22; statute requires (as in case of a land
Bellinger v. Shafer, 2 Sandf. Ch. 293. warrant) a particular authority to be
2 See Macphers. Inf. 295; 1 Atk. obtained for a transfer of land, one who
489 ; Hood v. Bridport, 11 E. L. & Eq. purchases without ascertaining that it
271 ; Jackson v. Jackson, 1 Gratt. 143. has been pursued acts at his peril,
3 Snodgrass's Appeal, 37 Penn. St. Mack v. Brammer, 28 Ohio St. 508.
377. And see next chapter. Illinois statutes
* Guy V. Du Uprey, 16 Cal. 195. confer large powers on the county
5 Barrett v. Cocke, 12 Heisk. 566. courts as to granting leave to mort-
8 Tenney lu Evans, 11 N. H. 346. gage, and a mortgage may be au-
^ lb. ; 14 N. H. 343. thorized to secure a loan obtained in
^ Merritt v. Simpson, 41 111. .391 ; order to make improvements on the
Lovelace v. Smith, 39 Ga. 130; Wood ward's land. 24 Fed. R. 838. Cf. 11
I'. Truax, 39 Mich. 628 ; Edwards v. Or. 58. One who lends money to a
Taliafero, 34 Mich. 13. Power to sell guardian who is authorized by the
and convey under a trust does not in- court to borrow for the purpose of re-
clnde power to mortgage. Tyson v. moving liens may recover the amount
Latrobe, 42 Md. 325. As to assigning from the ward's estate. Ray v. McGin-
a mortgage, see next section. Where a niss, 81 Ind. 451.
521
§ 332 THE DOMESTIC RELATIONS. [PART IV.
trustees is to place the property in a state of security. Guar-
dians in this respect are treated on the same footing as other
trustees. Choses in action should be reduced to possession with-
out unnecessary delay ; ^ to which we should add, however,
that incorporeal personalty of various kinds serves in modern
times for a long-continued investment. All claims should he
collected as prudence may require, concerning which the guar-
dian has been put upon inquiry.^ Money temporarily in the
guardian's hands should be deposited in some responsible bank.
But wherever placed and however invested, the trust funds
should be separated, by distinguishing marks, from his private
property ; exceptions occurring, however, in some cases of a
temporary deposit, as for instance where the money is left in
one's iron safe with his private valuable papers for no un-
reasonable length of time and under circumstances imputing
to him no want of ordinary prudence and diligence, either in
placing and keeping it there in that condition, or in pursuing
the thief who took it out. Otherwise, he would be personally
liable for loss. Hence, if a guardian deposits money in the
bank to his own account, and the bank afterwards fails, he
must suffer the consequences;^ though it is otherwise, where
he deposits there not imprudently or dishonestly in his trust
capacity.* So, if he purchases stock or takes a promissory note
in his own name, it will be treated as his own ; but not, neces-
sarily, to the ward's prejudice, for it might otherwise be clearly
identified and traced as the ward's property.'^ And it would
appear that he is not permitted in such cases to show by other
1 See Hill, Trustees, 447, and cases ^ Wren v. Kirton, 11 Ves. 377;
cited ; Caffrey v. Darby, 6 Ves. 488 ; Fletcher v. Walker, 3 Madd. 73 ; Mc-
Powell V. Evans, 5 Ves. 839; Lewson Donnell v. Harding, 7 Sim. 178 ; Kouth
V. Copeland,2 Bro. C. C. 156; Tebbs v. v. Howell, 3 Ves. 505 ; Matthews v.
Carpenter, 1 Madd. 298; Caney v. Brise, G Beav. 2-^>9 ; Atkinson y. Wliite-
Bond, 0 Beav. 486. So as to infant head, 66 N. C. 296.
husband or wife. Ware v. Ware, 28 ^ Post's Estate, Myrick's Prob.
Gratt. 670 ; Shanks v. Edmondson, 28 230.
Gratt. 804. ^ Jenkins v. Walter, 8 Gill & Johns.
~ The guardian of a soldier's heir 218; White v. Parker, 8 Barb. 48;
should ascertain as to his pension and Knowlton v. Bradley, 17 N. H. 458;
bounty rights, and pursue claims ac- Brown v. Dunham, 11 Gray, 42; Beas-
cordingly. Clodfelter v. Best, 70 N. C. ley v. Watson, 41 Ala. 234.
733.
522
CHAP. VI.] lilGHTS AND DUTIES OF GUARDIANS. § 352
evidence an intent to charge his ward ; for the act itself is
conclusive against him.^
The guardian may receive money secured to the ward by
mortgage, and discharge the mortgage, before, at, or after ma-
turity, in the exercise of due prudence and foresight ; - and so,
too, he may extend or renew a mortgage note or other note on
fair terms ;^ and on a breach may sell.* It would appear, too,
that, in the absence of any statute limiting his powers, he
has, as incidental to his office and duties, the power to sell, in
the exercise of sound business discretion, his ward's personal
property, except, perhaps, as to peculiar incorporeal kinds.^
In collecting outstanding debts or prosecuting claims a rea-
sonable time is to be allowed the guardian. Ordinary prudence
and diligence is the rule ; and for culpable negligence subjecting
the estate of his ward to loss he may make himself personally
liable, even though the demand be against a person residing in
another State.^ He is not to sue in all cases where ordinary
modes of collection fail ; for the expenses of litigation are to
be weighed against the chances of realizing a benefit. What is
a reasonable time will depend upon circumstances. It is his
duty to contest all improper claims, though presented by the
surviving parent.''^ Nor can he with safety permit the admin-
1 Brisbane v. Bank, 4 Watts, 92 ; bond upon personal security or without
Stanley's Appeal, 8 Barr, 431. security. See preceding section ; Mack
2 Chapman i\ Tibbits, 33 N. Y. 289 ; v. Brammer, 28 Ohio St. 508. General
Smith V. Dibrell, 31 Tex. 239. The guardians do not represent their in-
debtor is discharged, tliough the guar- fant wards in foreclosure proceedings,
dian squander the proceeds. 35 La. Sheahan v. Wayne, 42 Mich. 69.
Ann. 310. Mortgaged land may be re- Stock and its transfer follow pecu-
deenied from a tax sale. 57 Iowa, liar rules. Shares of stock standing in
545. the name of " A. B. guardian " cannot
3 Willick V. Taggart, 17 Hun, 511. be sold so as to compel the company to
* Taylor v. Hite, 61 Mo. 142. recognize the transferee, without order
s See Wallace v. Holmes, 9 Blatchf. of the court. De la Montagnie v. Union
67; snpra, Humphrey v. Buisson, 19 Ins. Co., 42 Cal. 290.
Minn. 221. A guardian cannot, in South A guardian's sale of cotton on credit,
Carolina, sell and assign his ward's bond taking the purchaser's note without se-
and mortgage of real estate without curity according to business usage, does
judicial sanction. McDuffie v. Mcln- not necessarily render the guardian
tyre, 11 S. C. 551. Aliter, probably, in liable if such purchaser turn out insol-
many States ; though the right to assign vent. State v. Morrison, 68 N. C. 162.
real-estate security is more doubtful ^ Potter v. Hiscox, .30 Conn. 508.
than that of assigning a simple note or ^ Ex parte Guernsey, 21 111. 443.
523
§ 353 THE DOMESTIC RELATIONS. [PART IV.
istrator of the estate of his ward's father to control property
of which he is the legal custodian. And he must hold an
administrator to account in all cases.^ If a guardian takes
notes of third persons in payment of an indebtedness to his
ward, and afterwards receives the money upon the notes and
appropriates the money as guardian, the payment is sufficient.^
In the exercise of prudence and good faith a guardian may, to
save the ward from loss, accept property, real or personal, in
settlement of the latter 's debt or claim,-^ Nor is he personally
liable, in every case, on a note received by him with other
assets, which turns out afterwards to be worthless, on the
ground that it might have been collected when transferred to
him ; for a guardian's liability has its reasonable limits ; the
question is one of ordinary prudence and good faith.* And
money paid to a guardian by mistake cannot be recovered again,
if he has paid it out before receiving notice of the mistake.^
Where a note or debt is lawfully due from a solvent party, the
guardian may be held accountable for the whole if he settles
for less than the full face amount.^
§ 352 a. Whether the Guardian can Bind by Pledge, &c. —
In New Hampshire it is held that a guardian has no common-
law authority to bind his ward or the trust fund by a pledge
of the ward's property. A guardian who signs a note as guar-
dian simply binds himself personally ; and one who takes in
pledge from a guardian a note payable to the order of the guar-
dian, has not even an innocent holder's protection.^
§ 353. Investment of Ward's Funds. — Like all other trustees,
the guardian is bound to make his ward's funds productive.
He should see that the capital which comes to his hands is
1 Wills's Appeal, 22 Penn. St. 325 ; cases cited. Statutes generally indicate
Clark V. Tompkins, 1 S. C. n. s. 119. how the guardian may raise money
2 Jones V. Jones, 20 Iowa, 388. which he needs. In this case the guar-
3 Mason v. Buchanan, 62 Ala. 110. dian's successor was allowed to recover
* Stem's Appeal, 5 Whart. 472 ; the notes pledged by a bill in equity.
Waring v. Darnall, 10 Gill & Johns. But as to the pledge of negotiable in-
127 ; Love v. Logan, 69 N. C. 70. struments not bverdue to one who ad-
6 Massey v. Massey, 2 Hill Ch. vances in good faith, and without
492. X notice of infirmity and as to pledge in
6 Darby v. Stribling, 22 S. C. 243. general, see Schouler, Bailm. Part IV.
" Hardy r. Bank, 61 N. H. 34, and c. 4.
524
CHAP. VI.] RIGHTS AND DUTIES OF GUAKDIANS. § 353
well secured ; procure a change of securities whenever neces-
sary ; and invest surplus moneys where they may draw interest.
For funds accruing during the continuance of his trust he is
allowed a reasonable time for making his investment, usually
limited to six months, though in some cases a year is allowed,
and in others only three months ; and he cannot suffer the
ward's money to remain longer idle.^ But he may keep a suit-
able surplus on hand for current and contingent expenses ; also
sums too small to be wisely invested.^ And family relics and
ornaments, household furniture and farm stock, are generally
exempted from the rule of investment.
The investment of the trust funds is therefore one of the
most important duties of a guardian, both as respects the inter-
ests of his ward and his own security. Testamentary guardians,
like trustees under deeds of trust, should follow the direction of
the testator in making investments ; and for losses arising
from such course they are not responsible. But their powers
are to be construed strictly ; and where the will is silent or
the directions are in general terms, or manifestly improper,
chancery rules of investment must prevail.^ We have already
observed that conversions are not favored ; that is, the invest-
ment of personalty in lands or of lands in personalty.*
In England the estates of infants and persons of unsound
mind under chancery guardianship are usually controlled by
the court. The general practice is to get in all the money due
the ward and invest it in the public funds. For this purpose a
receiver is appointed, if necessary. The court will not allow
the ward's money to be left out on personal security, without
reference to a master as to the sufficiency of the security ; nor
upon judgment security ; but, where advantageously invested
1 Worrell's Appeal, 2.3 Penn. St. 44 ; * See § -347. A guardian who takes
White V. Parker, 8 Barb. 48; Karr v. title to lands in his own name, paying
Karr, 6 Dana, 3; Pettus v. Sutton, 10 partly in his ward's money, and giving
Rich. Eq. 356; Owen v. Ptebles, 42 a mortgage for the unsecured sum, is
Ala. 338; m/ra, § 354. guilty of waste Robinson v. Pebworth,
2 Baker v. Richards, B S. & R. 12; 71 Ala. 240. So too where the ward's
Knowlton v. Bradley, 17 N. H. 458. personalty is invested in real estate
8 Macphers. Inf. 266. And see Hill, without an order of the court. West
Trustees, 368-384, and Wharton's v. West, 75 Mo. 204. But the wards
notes. may ratify. 58 Iowa, 32G ; § 385.
625
§ 353 THE DOMESTIC RELATIONS. [PART IV.
on the security of real estate, in Great Britain, the court will
not disturb the investment. The statute of 4 and 5 Will. IV.
c. 29, authorizes investments on real security in Ireland, under
the direction of the English Court of Chancery.^
In this country the management of the personal estate of
infants and others is usually left to their guardian, subject to
recognized principles of law which he is bound to follow.
There are statutes in many States which authorize the invest-
ment by fiduciaries only in particular kinds of securities. In
others it is provided that investments may be made in any
manner for the interest of all concerned.^ It is the general
rule that either public securities or real securities are to be pre-
ferred.3 Investments in bonds of the United States, or of the
State having jurisdiction of the ward, are doubtless proper ; so
mortgage investments on first-class property within the State,
and city and town securities, are frequently designated as suit-
able investments. But the stock of railway, navigation, and
other incorporated companies, whose stability is uncertain, is
unsuitable , * and corporate bonds are a security preferable to
their stock. For small sums of money savings banks of good
repute may be found convenient. United States Bank stock
has been considered a proper investment ; ^ and so with stock
in a solvent bank of good repute.^ And while, in some States,
fiduciary officers are strictly limited in their power of invest-
1 Macphers. Inf. 266 ; Hill, Trustees, see Powell i'. Boon, 43 Ala. 459 ; White
395 ; Norbury ?'. Norbury, 4 Madd. 191. r. Nesbit, 21 La. Ann. 600; Brand v.
■^ Gary v. Cannon, 3 Ired. Eq. 64. Abbott, 42 Ala. 499 ; Sudderth v. M©
See State v. Harrison, 75 N. C. 432. Combs, 65 N. C. 186; Coffin v. Bram
3 Gray v. Fox, Saxt. 259; Worrell's litt, 42 Miss. 194; Parsley v. Martin
Appeal, 9 Barr, 508; Nance i'. Nance, 77 Va. .376 ; 85 N. C. 283, 500 ; Green
1 S. C. N. s. 209. V. Rountree, 88 N. C. 164: 78 Va. 387
■• Worrell's Appeal, 23 Penn. St. Such investment was held unlawful in
44; Allen ;;. Gaillard, 1 S. C. N. s. 279; Lamar v. Micou, 112 U. S. 452, not
French v. Currier, 47 N. H. 88. There withstanding the motive of the guar
are a number of recent decisions in Vir- dian was to save property from confis'
ginia, North Carolina, South Carolina, cation.
Alabama, and other Southern States, of ^ Boggs v. Adger, 4 Rich. Eq. 408
temporary importance, whicli relate to contra, Smitii r. Smith, 7 J. J. Marsh
investments in wliat are known as 238. And see Watson v. Stone, 40 Ala,
'Confederate securities" and settle- 451.
ments by a guardian in the so-called ^ Haddock i". Planter's Bank, 66 Ga.
" Confederate nionev." Among these 406.
626
CHAP. VI.] RIGHTS AND DUTIES OP GUARDIANS.
353
ments ; in others, as Massachusetts, there is no favored stock or
security, and they are only bound to exercise reasonable pru-
dence and sound faith.i But for losses which are without the
protection of this rule, the guardian or other trustee is always
personally responsible. And loans on the credit of a single
individual (even though it be the child's parent) ^ or a single
firm, without other security, or with very doubful security, are
not sustained ; -^ except perhaps in special instances of transac-
tions with some failing or doubtful debtor already owing the
ward's estate, with whom one seeks to make as prudent terms as
possible. Nor otherwise are investments in indorsed notes of
parties of bad or doubtful standing ; ^ though the rule would be
otherwise if their credit was good. To lend money deliberately
and without special excuse, on what one knows is insufficient
security, is a waste of the ward's estate.^ Loans to individuals
with good collateral security are upheld, in the absence of a re-
strictive statute.^ Speculative investments may be made by pru-
dent men in their own business, but not by fiduciaries with their
trust funds. If a loan by the guardian be sanctioned by the court,
he is not liable for loss, unless it arises from his subsequent de-
fault.' But the assent of the court must be in writing and of
record ; not given by parol.^ In a few States the code strictly
requires the guardian's investments to be approved by the court;
and if he invests otherwise, he will be held responsible for a loss.^
1 Konigmacher's Appeal, 1 Penn. Clay u. Clay, 3 Met. (Ky.)548; Boy-
207 ; Kimball r. Perkins, 130 Mass. 141 ; ett v. Hurst, 1 Jones Eq. 166 ; Clark >\
Lovell V. Miiiot, 20 Pick. 116; Nance Garfield, 8 Allen, 427 ; Gilbert v. Gup-
V. Nance, 1 S. 0. n. s. 209 ; Swartwout til, 34 111. 112 ; Lee v. Lee, 55 Ala. 590.
V. Oaks, 52 Barb. 622. Where money But see State v. Morrison, 68 N. C.
was lost in a mortgage investment 162.
tlirough a defective title, the guardian * Harding v. Larned, 4 Allen, 426 ;
was relieved of the loss, it appearing Fletcher v. Fletcher, 29 Vt. 98 ; Cov-
that he had used fair prudence in ex- ington v. Leak, 65 N. C. 594 ; Hurdle
ainining the title. Slauter y. Favorite, r. Leath, 63 N. C. 597.
HIT Ind. 291. See 78 Va. 297. In Jack's 5 7^ Va. 574.
.Appeal, 94 Penn. St. 367, the guardian " Lovell v. Minot, 20 Pick. 116. See
was absolved, where the security be- Torry v. Frazer, 2 Redf. 486.
came worthless through an extraordi- "^ O'Hara v. Shepherd, 3 Md. Ch.
nary shrinkage of real-estate values. 306 ; Bryant v. Craig, 12 Ala. 354 ; Car-
2 WyckofE I). Hulse, 32 N. J. Eq. lysle r. Carlysle, 10 Md. 440.
697. » See Newman v. Reed, 60 Ala. 297.
3 Smith V. Smith, 4 Johns. Ch. 281 ; » 103 111. 142.
527
§ 354 THE DOMESTIC RELATIONS. [PART IV.
§ 354. Same Subject; when Chargeable with Interest. — Neg-
ligence and unreasonable delay in the investment of trust funds
is a breach of official duty for which the trustee is held answer-
able. And where the guardian carelessly suffers cash balances
to remain idle in his hands, or mingles the ward's money with
his own, he is chargeable with interest, and in case of fraud or
positive misconduct with compound interest.^ But he must be
allowed a reasonable time under all the circumstances of tlie
case.''^ A familiar rule charges the guardian with interest for
neglecting to invest his ward's money after six months ; yet
deferring interest for that length of time is not invariable, but
depends upon the circumstances.^ It remains a disputed ques-
tion whether the guardian should be charged with compound
interest for mere delinquency ; but it seems that he should not.
In some cases a trustee has been so charged, because the trusts
under which he acted required him to place the fund where
more than simple interest would have accumulated. In others,
the principle seems to have been to exact it as a penalty for his
misconduct in deriving, or seeking to derive, some pecuniary
advantage from the trust money, or in squandering it. In all
cases courts of chancery have exercised a liberal discretion,
according to the circumstances.'* The rule announced by Chan-
cellor Kent cannot, therefore, be considered quite accurate.^
1 Barney v. Saunders, 16 How. 535
Swindall v. Swindall, 8 Ired. Eq. 285
Knott I'. Cottee, 13 E. L. & Eq. 304
& Eq. 140; Roche v. Hart, 11 Ves.
58.
5 2 Kent, Com. 231, and note ib.
Stark I'. Gamble, 43 N. H. 465; Mackin with citation of authorities. And see
V. Morse, 130 Mass. 439; Snavely v. Koche v. Hart, 11 Ves. 58; Robinson
Harkrader, 29 Gratt. 112; Tyson r. «?. Robinson, 9 E. L. & Eq. 70; Light's
Sanderson, 45 Ala. 3G4 ; Clay ?j. Claj', Appeal, 24 Penn. St. 180; Kenan v.
3 Met. (Ky.) 548. But see Reynolds Hail, 8 Ga. 417; Greening v. Fox, 12
r. Walker, 29 Miss. 250. B. Monr. 187; Bentley ?■. Slireve, 2
'^ There are e.xtreme cases in which Md. Ch. 215 ; Pettus v. Clauson, 4
a guardian would not be charged for Rich. Eq. 92 ; Farwell v. Steen, 46 Vt.
delayincc to invest, even with simple 678; FinncU y. O'Neal, 13 Bush, 176.
interest, it appearing on proof that he Compound interest should cease on the
could not do so by exercising due dili- ward's arriving at full age, and simple
gence. Brand v. Abbott, 42 Ala. 499 ; interest only be charged thereafter.
Ashley v. Martin, 50 Ala. 537. Tanner r. Skinner, 11 Bush, 120 And,
3 Crosby V. Merriam, 31 Minn. 342; pending a judicial decree upon liis final
Thurston Re, 57 Wis. 104. balance, one is under no obligation to
* See language of the Master of invest and should not be charged inter-
the Rolls, in Jones v. Foxall, 13 E. L. est unless he has made use of the fund
528
CHAP. VI.] EIGHTS AND DUTIES OF GUARDIANS. § 354
Where a guardian speculates with his ward's funds, or em-
ploys them in his own business, he must account for the profits.
As this is a clear breach of trust, compound interest is properly
chargeable. It would seem to be the true rule in equity, where
large profits, which ought to have gone to the credit of the
cestui que trust, are appropriated by his trustee, to require them
to be turned in on account ; and to impose compound interest
instead, with annual or other periodical rests as a penalty only
when there are practical difficulties in the way of enforcing
such a rule or as a beneficial option to the ward. For it is
obvious that in this country a guardian can frequently afford
to pay compound interest for the use of his ward's money, if he
is suffered to retain the full profits of the speculation for him-
self.^ Where he loans his ward's money on usury, and thereby
forfeits the whole debt, he is liable for principal and interest. ^
But this need not prevent him from investing at more than the
ordinary or " legal " rate, if it be in reality lawful ; and in some
States he is bound to do so.^ It has been held that where a
guardian employs his ward's money in a business which he
allows his son to manage, with a portion of the profits as his
compensation, and the transaction is free from fraud, he is not
chart^eable with his son's share of the profits.*
While in many States the guardian's investment of his ward's
moneys in stocks is illegal, and it must be his loss if the stock
turn out unproductive, the tendency of the decisions is to make
him liable, in case the stock proves productive, for the highest
market value of the shares which he realized or might have
realized, and for all the dividends he received from them.^
Where the trust property is already invested on securities
which would not be sanctioned by the court, the question some-
or earned interest. Re Mott, 26 N. J. Lowry v. State, 64 Ind. 421 ; Reed v.
Eq. 509. Mere failure of the guardian Timmins, 52 Tex. 84.
to file annual accounts does not render "^ Draper v. Joiner, 9 Humph. 612.
him liable for compound interest. Ash- ^ Foteaux v. Lepage, 6 Iowa, 123 ;
ley V. Martin, 50 Ala. 537. He should Frost v. Winston, 32 Mo. 489.
be so charged only in cases of fraud or * Kyle v. Barnett, 17 Ala. 306.
flagrant breach of trust. Thurston ^ French v. Currier, 47 N. H. 88;
Re, 57 Wis. 104. And see Shaw u. Lamb's Appeal, 58 Penn. St. 142; At-
Bates, 53 Vt. 360. kinson v. Atkinson, 8 Allen, 15.
1 Spear v. Spear, 9 Rich. Eq. 184 ;
34 629
§ 355 THE DOMESTIC RELATIONS. [PAKT IV.
times arises how far it is the guardian's duty to call them in
and invest in other securities. In this, and in matters of rein-
vestment, the same principles would be held to apply as to
general trustees. And since such questions have arisen almost
always under testamentary trusts, and not as between guardian
and ward, the reader is referred to works on that subject for a
full exposition of the law. We will simply add, that much is
to be left to a guardian's discretion, in this and all other re-
spects, where he manages the property of his ward on the foot-
ing of a trustee ; and that he will not be held to strict account
for losses occasioned in the exercise of his authority, where he
has acted hona fide, and according to the best of his judgment,
or with average good judgment, though not with all the promp-
titude and skill which the exigencies of the ward's situation
demanded.^
CHAPTEE VII.
SALES OF THE WAED'S REAL ESTATE.
§ 355. In Sales of Ward's Personal Property a Liberal Rule
Applies. — The nature of personal property, its convertibility
into cash, and the necessity frequently arising for changes of
investment in order to make it sufficiently productive, have
brought about a flexible rule so far as its purchase and sale is
concerned, and no actual conversion takes place. Hence courts
of chancery at the present day assume considerable latitude in
directing changes from one species of personal estate to another.
Especially liberal must be the rule in those States where the
trustee is free to invest in any securities deemed proper, pro-
vided he observes prudence and good faith. Hence, too, the
guardian himself may sell and reinvest his ward's personal
estate, and make purchases, without a previous order of court.
1 See Hill, Trustees, and "Wharton's notes, .379-384. And see Perry, Trusts,
cs. 14, 21.
530
CHAP. VII.] SALES OF WARD's REAL ESTATE. § 356
But this is to be considered rather the American than the Eng-
lish rule ; since, as we have seen in the preceding chapter, a
guardian's discretion is strictly limited in England, and the
practice of the chancery courts in such matters is to control
the property.
§ 356. Othervrise as to Real Estate ; Whether Chancery can
sell Infant's Lands. — Courts of chancery, however, have no in-
herent original jurisdiction to direct the sale of lands belonging
to infants. The legislative power of a State may take the prop-
erty of its citizens in the exercise of the right of eminent domain.
But a judicial tribunal properly hesitates to assume such func-
tions. The common law, which recognized fully the right of
individuals to the enjoyment of their possessions, and particu-
larly of real estate, without disturbance, appears to have treated
lands belonging to infants as property which should be pre-
served intact until the owner became of sufficient age to dispose
of it according to his own pleasure. Timber might be felled,
and mineral ore dug out and carried away ;i but though such
acts constituted a technical conversion of real estate, they were
in effect but a mode of enjoyment of the rents and profits, and
the guardian was obliged to account for these products of the
soil to the infant owner. Sales of the ward's lands were author-
ized in certain cases, as where there were debts to be paid, en-
cumbrances to be discharged, judgments to be satisfied, or
necessary repairs to be made upon the premises. But in such
cases the Court of Chancery violated no rights of ownership ;
since it is the universal doctrine that property can only be held
subordinate to the obligation of paying one's debts.^ Mortgages
were in rare instances permitted.^ Courts of chancery went no
^ But see Stoughton's Appeal, 88 ^ //, When an infant was abso-
Penn. St. 108. lately entitled subject to certain trusts
2 See Sliaffner v. Briggs, 36 Ind. 55. to the beneficial interest in real estate,
On application for maintenance, chan- the legal estate being in trustees,
eery has jurisdiction to charge ex- chancery directed the raising of money
penses of past maintenance and costs by means of a mortgage to defray the
on the infant's land. In re Howarth, cost of necessary repairs. Jackson
L. R. 8 Ch. 41.5. And see De Witte v. Bp, 21 Ch. D. 786. See the scanty
Palin, L. R. 14 Eq. 251 ; Nunn i\ Han- precedents for such mortgages here
cock, L. R. 6 Cli. 850, as to jurisdiction cited ; prospective charges not seem-
in sale of reversionary interest of an ing to have been sanctioned by such
infant ;§§ 340, 351. proceedings.
531
§ 357 THE DOMESTIC EELATIONS. [PART IV.
further, except when authorized by statutes. They preferred
that the mfant's property should remain, while guardianship
lasted, impressed with its original character. In the settlement
of estates, personal property was to be taken to pay what was
needful for support and maintenance, rather than lands. Not
even purchases of real estate were favorably regarded. And
when a sale became necessary, the real estate was not resorted
to until other means of raising money had failed ; nor was a
general sale of the lands ordered whenever a partial sale would
suffice.
On this subject Lord Hardwicke observed as follows, in Tay-
lor V. Philips : ^ " There is no instance of this court's binding
the inheritance of an infant by any discretionary act of the
court. As to personal things, as in the composition of debts, it
has been done, but never as to the inheritance ; for that would
be taking on the court a legislative authority, doing that which
is properly the subject of a private bill." This language received
the subsequent approval of Lord Chancellor Hart.^ It has also
been quoted as the recognized law in this country.^
§ 357. Same Subject; English Chancery Doctrine. — Hence,
too, whenever the Court of Chancery has permitted purchases
of lands, the infant's right to affirm or disaffirm on reaching
majority, or, as chancery sometimes expresses it, to show cause,
has been reserved. Lord Eldon lays down with great caution
the power of the court in changing the infant's property, so as
not to affect the infant's power over it when he comes of age.'*
And whatever may be the rule where there is some claim or
debt to be satisfied, it appears that chancery will decline order-
ing a sale of land belonging to an infant merely upon the
ground that the sale would be beneficial to him ; while in any
case, if there be a material error in substance, and not in form
alone, a purchaser may object to the title, and the court will
discharge him from his contract.^
1 2 Ves. 23. 186; Ex parte Jewett, 16 Ala. 409;
2 Russell V. Russell, 1 Moll. 525. Thompson v. Brown, 4 Johns. Ch. G19 ;
3 Rotrers v. Dill, 6 Hill, 415. See Faulkner v. Davis, 18 Gratt. 651.
also the learned and elaborate opinion ■* Ware r. Polhill, 11 Ves. 278 ; Ex
of the court, with citation of English parte Phillips, 19 Ves. 122.
autliorities,in Williams's Case, 3 Bland, ^ See 1 Dan. Ch. Pract. 3d Am. ed.
532
CHAP. VII.] SALES OF WARD's REAL ESTATE. § 359
One objection to conversions of property, namely, that the
laws of inheritance are not the same in real and personal estate,
became obviated in equity by treating the proceeds throughout
as impressed with the character of the original fund ; a rule of
large application both in England and America.^ Another ob-
jection, upon which English writers have dwelt at length, arose
under the law of testamentary dispositions, which allowed in-
fants to give and bequeath personal estate, males at the age of
fourteen, and females at twelve, while real estate could not be
devised under twenty-one. Here again chancery decreed, when-
ever a conversion was authorized, that the right of testamentary
disposition should not be thereby changed. The wills act of
1 Vict. c. 26, dispenses with this distinction in testamentary
dispositions altogether.^ And this latter objection never could
have arisen in the courts of many of the United States.
§ 358. Civil-Law Rule as to Sales of Ward's Lands. — Guar-
dians and tutors of minors at the civil law had power, under the
direction of the proper court, as it would appear, to convey the
estates of their wards.^
§ 359. Sale of "Ward's Lands under Legislative Authority com-
mon in the United States. — Legislative authority may intervene
to direct the absolute sale of an infant's lands. And since the
ownership of real estate in this country is vested with compara-
tively little of that sanctity and importance which the ancient
laws of primogeniture and feudal tenure threw about it, and
inasmuch as purchases and sales of land are fast becoming
matters of every-day occurrence, the legislatures of most of the
United States have seen fit to enact laws for facilitating the
sales of real estate by fiduciary officers. These laws are com-
paratively recent, and not altogether uniform in their provisions.
159, 160 ; Calvert v. Godfrey, 6 Beav. 524 ; Huger v. Huger, 3 Desaus. 18.
106. But this is not necessarily the case at
1 Whelflale v. Partridge, 5 Ves. 396 ; law. And such proceeds lose their ori-
Macphers. Inf. 284 ; Story, Eq. Juris, ginal character and become personalty
§§ 790-793, and autliorities cited ; 2 on their first transmission, though to
Kent, Com. 2.30, and n. ; Forman v. an infant. Dyer v. Cornell, 4 Barr,
Marsh, 1 Kern. 544 ; Horton v. McCoy, 359.
47 N. Y. 21 ; Fidler r. Higgins, 6 C. E. ^ Macphers. Inf. 278, and cases cited.
Green, 138 ; Holmes's Appeal, 53 Penn. See Hill on Trustees, 396, n.
St. 339 ; March v. Berrier, 6 Ired. Eq. 3 Menifee v. Hamilton, 32 Tex. 495.
533
§ 360 THE DOMESTIC RELATIONS. [PART IV.
But in most essential features they are alike. They constitute
a permanent system. They may apply, not to guardians alone,
but also to trustees, executors, and administrators. As cases
are constantly arising under these laws, we shall here briefly
notice some of the principles which have a special bearing upon
the sales of real estate, so far as guardians are concerned, with-
out deeming it necessary to make a minute analysis, since such
statutes are purely local and subject to local variations.
§ 360. American Statutes on this Subject consideied. — Our
American statutes relative to the sale of lands belonging to
infants have the following points in common : First, an appli-
cation to the court on the infant's behalf upon which the order
of sale issues. Secoml, a special bond to be filed by the guardian.
Third, the formal sale of the land, usually at public auction.
Fourth, the execution of the deed to the purchaser. Fifth, a
proper disposition of the proceeds of the sale. And in some
States a judicial confirmation of the sale is required. The judi-
cial order of sale is frequently termed a license ; and the exact
method of procedure is indicated in the statutes themselves.
These statutes, we may add, not unfrequently limit the pur-
pose for which such sales may be made : as, for instance, when
the ward has no other means for his education and support; or,
again, to pay proper debts ; or sometimes for the purpose of in-
vesting the proceeds so as to derive an income more readily.
And again, the guardian to be authorized is the probate, not the
natural, guardian, who besides giving the usual bond of guar-
dianship is likewise required to give the special bond of which
we speak for the purposes of the sale.^ And the legislative
provision sometimes extends to sales of reversionary or equi-
table interests of minors ; or, again, is limited to property in
which the minor has the legal title.
^ See Morris v. Morris, 2 McCart. If A., upon his representation that he
239; Shanks v. Seamonds, 24 Iowa, is B.'s guardian, obtains an order to
131 ; People v. Circuit Judge, 19 Mich, sell, when he is not B.'s guardian, the
296. Nor is the husband of an infant order is void and may be impeached
a guardian, under such statute, who collaterally. Grier's Appeal, 101 Penn.
can be thus authorized to sell. Den- St. 412. Sale cannot be made after
genhart r. Cracraft, 36 Ohio St. 549. the ward's death. Robertson v. Coates,
A sale will not be authorized after the 65 Tex. 37.
guardianship has ended. 40 Ark. 219.
534
CHAP. Vn,] SALES OF WAKD*S KEAL ESTATE. § 360
As to the disposition of the proceeds, the guardian's conduct
is to be regulated by the terms of his license. If he was per-
mitted to sell for the purpose of maintenance and support, the
moneys obtained must be so appropriated ; if for the payment
of certain debts, those debts must be paid ; if for investment in
other securities, he must invest therein ; and, unless the court
leaves the investment to his own discretion, he is bound to in-
vest as it orders. Any other course of conduct will subject him
to penalties for breach of his special bond. He is not justified
in appropriating the proceeds of the sale for the above objects
generally, however reasonable it might be to do so on other
considerations ; but for the particular object contemplated by
the court in granting the license.^ Not even the ward's assent
to his disposition of the proceeds can exonerate the guardian
from responsibility to other parties immediately interested, for
such losses as may occur by reason of his disregard of this
rule.^ Nor is his special bond discharged by the fact that he
produced the proceeds of the sale in court, and was then or-
dered to withdraw them ; for the guardian and not the court
is the proper custodian of the fund.^ Any person not the guar-
dian, authorized to sell in such cases, is held to account in like
manner.'*
The guardian's deed made under such orders of court has
usually only the effect of a quitclaim, except so far as he may
have covenanted on his part that he has complied with the
statute requisites and that he is the guardian duly authorized ;
and in general he cannot bind his ward by any covenants of
warranty in the deed, though if he choose to warrant he may
bind himself. The purchaser in such sales usually takes all
risks of title except as concerns the authority and good faith
of the guardian in the premises.^ But it is held that caveat
emptor does not apply to the purchaser so as to require him
in equity to take the title where actual representations of the
guardian as to the goodness of the title turn out untrue.^
1 Strong V. Moe, 8 Allen, 125. 5 State v. Clark, 28 Ind. 138 ; Byrd
2 Harding v. Larned, 4 Allen, 426. r. Turpin, 62 Ga. 591 ; Holyoke v.
8 State V. Steele, 21 Ind. 207. Clark, 54 N. H. 578.
* Pope V. Jackson, 11 Pick. 113. « Black v. Walton, 32 Ark. 321.
535
§ 361 THE DOMESTIC RELATIONS. [PART IV.
§ 361. Same Subject; Essentials of Purchaser's Title. — The
most difficult question which arises under the statutes relating
to sales of the infant's lands, is that of the essentials of the
purchaser's title. In what cases may the guardian's sale be
set aside ? What statute provisions shall be regarded as im-
perative, and what as merely directory ? How far will irreg-
ularities avoid the guardian's acts, and who is at liberty to
impeach them ? One proposition may be laid down at the
outset. It is that, inasmuch as the authority of the guardian
to make, and of the court to permit, an absolute sale of the
infant's lands, is limited to the grant of powers conferred by
the legislature, the terms of such grant should be carefully
followed. Sales made in utter disregard of the precautions
wisely interposed by law are absolutely worthless.^
On the other hand, it must be admitted that there is always
a hardship imposed' upon a hona fide purchaser, whose rights
once apparently vested are afterwards pronounced null. If
the purchaser took the child's lands by collusion and fraud, or,
being the guardian himself, abused his trust to secure his own
profit, equity might justly suffer the transaction to be set aside
altogether. But a stranger who pays his purchase-money
honestly and fairly ought not to be compelled to suffer for
mere irregularities under the law. For such fraudulent acts
of the guardian as necessarily follow the consummation of a
bargain — as the misapplication of the purchase-money — it is
clear that this purchaser is not liable.^ A sale, too, if valid
when made, is not rendered invalid by the guardian's sub-
sequent resignation and the appointment of another person in
his place.^ As to those acts which precede the consummation
of a bargain the purchaser is put on his guard, unless from the
very nature of the case they could not have come to his obser-
vation. Irregularities or omissions to comply with statute for-
malities seem to range themselves in three classes : those which
are immaterial; those which will render a sale voidable by
1 Ex parte Guernsey, 21 111. 443
Barrett v. CImrchill, 18 B. Monr. 387
Patton V. Thompson, 2 Jones Eq. 411
Mason v. Wait, 4 Scam. 127.
536
2 Fitzglbbon v. Lake, 29 111. 165.
8 Jlerndon v. Lancaster, 6 Bush,
483.
CHAP. VII.] SALES OF WAKD's REAL ESTATE. § 361
certain parties interested ; those which go to the foundation of
the sale and render it void altogether. And according to the
judicial construction of such irregularities and omissions, under
the statutes and practice of the State, will the purchaser's title
be determined.
Where the sole authority of the guardian is derived from the
statute, courts will reluctantly declare any part of that statute
immaterial, except in the sense that the responsibility for non-
compliance is thrown upon the guardian or the court, and not
upon the purchaser. Informalities in the recitals of a hona fide
deed, defective notices, the insertion of irrelevant or superfluous
matter in the order of sale, errors of the guardian in his allega-
tions or of the court in issuing process, have been in this sense
ruled as immaterial. But such cases are generally not so much
of statutory direction as of judicial rule and common-law
analogies in supplying the intention of the legislature where
the statute was silent. The general principle prevails, that it
is wise policy to sustain judicial sales, and that they should not
be declared void or voidable for slight defects.^
Of mere irregularities advantage may often be taken by direct
proceedings concerning the sale, as by appeal, while, to attack
the sale and a purchaser's title collaterally, statute fundamentals
should have been disregarded.
As to irregularities or omissions which will render a sale
voidable, either the infant heir or some other person in interest
has been unfairly dealt with. Here the privilege is accorded
to the party or parties wronged, of having the sale set aside on
appeal or by direct proceedings instituted for that purpose ; but
not in a collateral manner. We need not here speak of the
infant's right of election in certain cases on attaining majority .^
Where in general the guardian obtained his license without
duly notifying a person in interest, such person is allowed to
have the sale set aside. The purchaser's title is, however, good
in the mean time. Nor can any one take advantage of the
defective proceedings but those whose interests were injuriously
1 Fitzgibbon v. Lake, 29 III. 165 ; Thornton v. McGrath, 1 Duv. 349 ;
Cooper V. Sunderland, 3 Iowa, 114; Ackley f. Dyo:ert,. 3.3 Barb. 176.
2 Infra, c. 9 ; Part V. c. 5.
537
§ 361 THE DOMESTIC RELATIONS. [PAET IV.
affected. A special limit is frequently set by law to pro-
ceedings of this kind, for the sake of quieting titles ; otherwise,
the ordinary statute of limitations seems to apply.^ Certain
defects in a sale, too, are in some States (but not in others)
treated as cured by the court's confirmation of the sale ; and
this more particularly where it is shown that the sale was
beneficial to the ward.^
But as to irregularities or omissions which render the sale
void altogether, there is some confusion of authority. The
principle itself is a clear one, but in the application commonly
made is much difficulty. The license of a court plainly
without competent jurisdiction would be void. But where the
court has jurisdiction (and this jurisdiction is usually vested
originally in county courts having probate jurisdiction^) it is
material to inquire what provisions of the statute are positive
and what are declaratory. In some cases, a very strict rule
seems to have been pursued ; in others, the construction has
been liberal in favor of the purchaser's rights. The execution
of the statute bond would seem to be in general an essential,
though some States do not so regard it ; so, too, a public sale at
the time set ; sometimes the filing of an oath ; the offer of such
land as the license designates and none other; the delivery of
a deed to the purchaser and receipt of the purchase-money.
And yet the guardian's failure to comply with certain of these
formalities does not invariably affect the purchaser's title. The
difficulty is set at rest in some States by a statute provision as
to the essential particulars which a bona fide purchaser is bound
to notice.* We can only add that, in States where the legis-
lature supplies no such provision, a purchaser cannot feel safe
in disregarding any forms of procedure prescribed in so many
words ; and that, the more explicit the language of the statute,
1 Kimball v. Fisk, 39 N. H. 110; Blackman v. Baumann, 22 Wis. 611;
Bryan v. Manning, 6 Jones, 334 ; Field Pursley v. Hayes, 22 Iowa, 11 ; Gager
7-. Golflsby, 28 Ala. 218 ; Butcher v. v. Henry, 5 Sawyer C. C. 237.
Hill, 29 Mo. 271 ; Gilmore v. Rodgers, '^ As to courts of common pleas, for
41 Penn. St. 120; Marvin ij. Schilling, such jurisdiction, see McKeeveri;. Ball,
12 Mich. 356; Kenniston y. Leighton, 71 Ind. 398 ; Foresmanv. Haag, 36 0hio
43 N. H. 309. St. 102.
2 See Emery v. Vroman, 19 Wis. * Gen. Sts. Mass. c. 102, §§ 37-48;
689; Mahoney v. McGee, 4 Bush, 527 ; Mohr v. Tulip, 51 Wis. 487.
638
CHAP. Vir.] SALES OF WARD'S REAL ESTATE.
361
the more careful he should be in insisting on the prescribed
course, especially as to the sale and the method of conducting
it.^ There might be defects to urge directly for avoiding such
1 Williams v. Morton, 38 Me. 47;
Owens r. Cowan, 7 B. Monr. 152 ;
Palmer v. Oakley, 2 Doug. 483 ; Stall
V. Macalester, 9 Ham. 19 ; lilackman
r. Baumann, 22 Wis. 611 ; Strouse v.
Drennan, 41 Mo. 289 ; Brown v. Christie,
27 Tex. 73 ; Frazier v. Steenrod, 7 Iowa,
339.
Due notice to those interested in
the sale is essential. Knickerbocker
V. Knickerbocker, 58 111. 899; Haws
V. Clark, 37 Iowa, 35.5 ; Williamson v.
Warren, 55 Miss. 199. But the pro-
ceeding is m rem, in the ward's interest;
and hence notice to heirs is not always
insisted upon as necessary. Mulford v.
Beveridge, 78 111. 455 ; Gager ;•. Henry,
5 Sawyer C. C. 237 ; Mohr v. Mahierre,
101 U. S. Supr. 417. But notice to
the ward is usually requisite. Rankin
V. Miller, 43 Iowa, 11; Kennedy v.
Gaines, 51 Miss. 625 ; Musgrave v.
Conover, 85 111. 374. Though the ward
need not join in the petition. Cole v.
Gourlay, 79 N. Y. 527. Jurisdiction is
essential. In some States the probate
court has no authority to order a sale.
Summer v. Howard, 83 Ark. 490; see
Foresman v. Haag, 36 Ohio St. 102,
The statute which pres(;ribes in what
county application should be made for
leave to soil, must be regarded. SpcU-
man v. Dowse, 79 111. 66 ; Mohr v.
Tulip, 51 Wis. 487. Advice of a fam-
ily meeting is an element in Louisiana
practice. 33 La. Ann. 1211. There is
no jurisdiction to authorize a mortgage
under a guardian's petition which asks
for a sale. McMannis v. Rice, 48 Iowa,
361. The notice of public sale with a
wrong time or no time stated is fatally
defective. Lyon v. Vanatta, 35 Iowa,
521. But cf Spring v. Kane, 86 111. 580.
A sale bond is essential in some States,
while in others its omission does not
invalidate the sale. Stewart f. Bailey,
28 Mich. 251; Blauser v. Diehl, 90
Penn. St. 350; McKeever v. Ball, 71
Ind. 398 ; 42 Ohio St. 454 ; 81 Ivy.
127 ; 23 Fed. R. 645. But informality
in the bond is not necessarily fatal. 55
Wis. 39. See Watts v. Cook, 24 Kan.
278 ; Cuyler v. Wayne, 61 Ga. 78. As
to requisites and sufficiency of a peti-
tion for leave to sell, there are many
decisions of little more than local con-
sequence. Discretion of a county court
in ordering a sale may be controlled
usually on appeal. A defective peti-
tion does not usually affect the court's
jurisdiction. And see 57 Tex. 62; 48
Mich. 407.
There has been some conflict of
cases as to whether a sale is valid with-
out the statutory notice to persons in
interest. But the present inclination
upholds the sale where a proper petition
was presented to the proper court, thus
giving that court jurisdiction in rem.
The sale may then bind the guardian
and his ward, and all having notice and
assenting, even though it might not
bind parties adversely interested having
no notice. For the notice is not to give
jurisdiction of the subject-matter, but
to get jurisdiction of persons adversely
interested. Mohr v. Tulip, 51 Wis. 487,
and cases cited ; Nott v. Sampson Man.
Co., 142 Mass. 479.
The place of sale need not be desig-
nated. Williams v. Warren, 55 Miss,
199. There may be a merely defective
notice, so as not to render the sale void
as in case no notice were given. Lyon
V. Vanatta, 35 Iowa, 521 ; 59 Iowa, 533.
A limit of sale, by appraisement or
otherwise, is sometimes set. See Fra-
ser V. Zylicz, 29 La. Ann. 534. Statute
requirement of publication for succes-
sive weeks, how fulfilled. Dexter v.
Cranston, 41 Mich. 448. As to adjourn-
ing the sale, see Gager v. Henry, 5 Saw-
yer C. C. 237. Defective recitals in a
guardian's deed ; whether the deed must
be cancelled. Bobb v. Barnum, 59 Mo.
394. Succinct statements in such deed
539
§ 361 a THE DOMESTIC RELATIONS. [PAET IV.
a sale which ought not to enable the sale to be attacked
collaterally.
The purchaser may sometimes maintain a bill in equity for
rescinding the sale on account of illegality. But he must offer
to surrender possession and to account for the use and occupa-
tion of the premises.-^ Defective proceedings are sometimes
cured by the court, so as to compel him to abide by the terms
of the purchase. Mere irregularities in a guardian's sale not
affecting the jurisdiction and the validity of a title do not jus-
tify the purchaser in refusing to complete the purchase.^ And
it seems that he may, by his laches, forfeit his right of objection
to the sale.^ And whatever the favor to be shown to a hona fide
purchaser without notice of fatal defects in the title or misap-
propriation of the proceeds, one who connives at a fraud upon
the ward may be held accountable for the trust property or its
proceeds.* And a court may refuse to confirm or may set aside
a sale because of gross inadequacy of price or other unfairness
to the ward's interest.^ A guardian can only safely accept
money in payment of the purchase price.^
§ 361 a. Other Statute Provisions; Mortgage, &c. — Mort-
gages are sometimes authorized on an infant's lands, under
are sufficient. Worthington v. Dunkin, it validity ; but local statutes differ. 57
41 Ind. 515. Where the court has juris- Tex. 62 ; 59 Iowa, 5.33 ; 45 Ark. 41 ; 85
diction, and makes an order for the Mo. 464. What such order adjudi-
sale, a bona fide but irregular arrange- cates, see 30 Minn. 107. Though con-
ment, by the guardian witli the pur- firmation ought to precede the delivery
chaser, as to delivery of deed to carry of a deed, a deed previously delivered
out the terms of the sale, will not is good after confirmation. Haramann
readily be regarded as invalidating the v. Mink, 99 Ind. 279.
sale. Mulford v. Beveridge, 78 111. 4-55. ^ Shipp v. Wheeless, 33 Miss. 646 ;
The act of conveyance is rather official Loyd i;. Malone, 23 111. 43; Auderson
than personal, and may be carried out v. Layton, 3 Bush, 87.
by a successor to the guardian who ^ Beidler v. Friedell, 44 Ark. 411 ;
sold. Lyncli r. Kirby, 36 Mich. 238. 29 Fed. R. 736.
A ward had a void decree of sale set ^ Cooper v. Hepburn, 15 Graft. 551.
aside where his guardian misappropri- * See Wallace v. Brown, 41 Ind.
ated the proceed,*, and was not com- 436, where a purchaser paid to the
pelled to refund the purchase-money, guardian the latter's individual notes
in Reynolds v. McCurry, 100 111. 356. in settlement of his purchase. And see
As to limitation of ward's disability to post, c. 9.
set aside, see 79 Ind. 188. ^ Mitchell v. Jones, 50 Mo. 438.
A fi)rmnl order of court confirming ^ Brenham v. Davidson, 51 Cal.
the sale is not needful usually to give 352.
540
CHAP. VII.] SALES OF WARD's REAL ESTATE. § 363
statute proceedings analogous to those empowering a sale ; ^ or
the sale of an undivided interest of a minor in laud, as tenant
in common or otherwise.^ Or a guardian's sale is made subject
to an existing mortgage.^
§ 362. American Statutes ; Sales in Cases of Non-Residents.
— Where a non-resident guardian applied for the sale of real
estate in Maine belonging to his ward, also a non-resident, the
person authorized in that State to make the sale was ordered to
transmit the proceeds to such non-resident guardian ; but this
would not be the rule in some other States.* Statutes have
been frequently enacted by which non-resident guardians may
sell their ward's lands, on petition to the court having jurisdic-
tion, with an authenticated copy of the letters of guardianship,
and compliance with the ordinary formalities of such sales ;
executing, perhaps, to the court having control of the funds, a
bond for their proper application.^
§ 363. American Chancery Rules as to Sales of Infant's Land.
— It is held in New York that the statutes of that State provide
for judicial sales only in cases where the legal title is in the
infant ; and that, independently of such statutes, the Court of
Chancery, having regard to the infant's necessities and interest,
may order a sale of the equitable estate. On this principle a
chancery sale was sustained, as against infants, where a trust
estate of infants in lands had been transferred by a contract
made between the guardian and purchaser with the approval of
the court.^ Other sales of this kind have been allowed where
the legal estate was in the infant.^ The course of procedure in
that State is somewhat peculiar, and English chancery prece-
dents are strongly favored. It is held that the part-owner of
lands in which an infant is interested ought not to be allowed
1 Battell V. Torrey, 65 N. Y. 294 ; and in Rhode Island he cannot give a
Noble V. Runyan, 85 III. 618. power of sale in such mortgage. Barry
2 Price, Matter of, 67 N. Y. 2.31 ; v. Clarke, 13 R. I. 65.
Schafer v. Luke, 51 Wis. 669 ; Brenhara * Johnson v. Avery, 2 Fairf. 99
f. Davidson, 51 Cal. 352; Fitzpatrick contra. Clay i-. Brittingham, .34 Md. 675,
V. Beal, 62 Miss. 244. 6 McClelland v. McClelland, 7 Baxt
3 As to the effect of such a sale, see 210.
Lynch v. Kirby, .36 Mich. 238. And see « Woods v. Mather, 38 Barb. 473
§ 351. Guardian's petition to court for Anderson v. Mather, 44 N. Y. 249.
leave to mortgage should be in writing, ^ In re Hazard, 9 Paige, 365.
641
§ 363 THE DOMESTIC RELATIONS. [PART IV.
to make the sale.^ So, too, the sale of a court, contrary to the
provisions of a devise, is utterly void.^ And in a late case the
chancery jurisdiction over the land of infants is expressed in
quite guarded language, and apparently to the effect that the
court has no inherent original jurisdiction to direct such sales,
but that authority must be derived from statute. Here real
estate owned by tenants in common, of whom an infant was
one, was sold under and in pursuance of a judgment in a parti-
tion suit instituted by others of the tenants in common ; and it
was held that the portion of the proceeds belonging to the infant
remained impressed with the character of real estate, and as
such did not pass under the infant's will.^ In some other
States, chancery, by virtue of its general jurisdiction over in-
fants and their estates, claims similar power to decree the sale
of an infant's lands, whether held under a deed or will,* and
thus to dispose even of contingent estates should occasion
arise.^
There are, indeed, numerous American decisions, in which
the rights of infants in lands are protected in equity, so far as
to give the infants opportunity to confirm or set aside the sale,
and prevent them from being bound by a transaction to which
they could not be parties in their own right. Instances are
found in administrators' settlements to which the infant heir
was not a privy, sales under decree to persons who had never
paid the purchase-money, and fraudulent transactions.^ It is
held that chancery cannot interfere with the lands of infants
unborn.'^ But sales made in fraud of an infant are sometimes
adopted and confirmed by a court, with the purchaser's assent,
as being beneficial to the infant.^ After destruction of the
1 In re Tillotsons, 2 Edw. Ch. 113. * Goodman r. Winter, 64 Ala. 410 ;
2 Rogers v. Dill, 6 Hill, 415. See Redd i'. Jones, 30 Gratt 123.
also Matter of Ellison, 5 Johns. Ch. ^ Palmer v. Garland, 81 Va. 444
201 ; Sntphen v. Fowler, 9 Paige, 280. (aided by statute).
3 Horton v. McCoy, 47 N. Y. 21. <> Williams l'. Duncan, 44 Miss. 376 ;
And see Cole r. Gourlay, 79 N. Y. 527. Jones v. Billstein, 28 Wis. 221 ; Wil-
Guardian summarily ordered to refund liams w. Wiggand, 53 111. 233; Terry v.
the excess of purchase-money in case Tuttle, 24 Mich. 206; Phillips v. Phil-
of an error as to the extent of the lips, 50 Mo. 604; Walke v. Moody, 65
infant's lands. Matter of Price, 67 N. 0. 599.
N. Y. 231. '' Downin v. Sprecher, 35 Md. 474.
8 Ex parte Kirkraan, 3 Head, 517.
542
CHAP. VIII.] guardian's BOND, ETC. § 365
records and lapse of time, the sale may be presumed to have
conformed to essentials.^ And as we shall see hereafter, length
of time and laches on the infant's part after reaching majority,
or his election not to avoid, may often render the transaction
unimpeachable.^
§ 364. Guardian's own Sale not binding ; Public Sale usually
required. — In general, a guardian's sale of real estate belonging
to his minor ward, without an order from the court either by
virtue of statute or chancery jurisdiction, is not binding upon
the minor; and such ward's interest, legal or equitable, can only
be divested by a public sale under proper judicial sanction ; ^
though discretion is sometimes given the court as to ordering
and sanctioning a private sale.* But under a deed of gift to
minors, empowering the guardian to sell, his discretion is com-
mensurate with the terms of the trust.^
CHAPTER VIII.
THE GUAEDIAN'S BOND, INVENTORY, AND ACCOUNTS.
§ 365. Guardian's Recognizance ; Receiver, &c. ; English Chan-
cery Rule. — It is the practice of the English Court of Chancery
to require chancery guardians appointed on petition without
suit to enter into recognizance to account. When reference is
made to a master on the original petition for guardianship, he
is directed to make a report approving of the security offered as
well as of the person desiring the appointment. On this report
1 Spring V. Kane, 86 111. 580. until conveyance is executed, con-
2 See infra, c. 9 ; Infancy, cs. 5 firmed, &c., even though by its terms
and 6 ; Havens v. Patterson, 43 N. Y. dating back. Ordway v. Smith, 53
218; Parmele v. McGinty, 52 Miss. Iowa, 589.
475. Infant's title under statute sale, ^ Supra, § 356; Wells v. Chaffin, 60
wlien actually divested, see Doe v. Ga. 677 ; Morrison v. Kinstra, 55 Miss.
Jackson, 51 Ala. 514; Shaffner v. Bripgs, 71.
36 Ind. 55 ; MacVey v. MacVey, 51 Mo. * Maxwell v. Campbell, 45 Ind,
406; Schafer v. Luke, 51 Wis. 669. 361.
Land held not taxable to purchaser ° Thurmond v. Faith, 69 Ga. 832.
543
§ 366 THE DOMESTIC RELATIONS. [PAET IV.
the court proceeds to act. A recognizance with sureties is usu-
ally taken ; but the court uses its discretion ; and sometimes the
personal recognizance of the guardian is deemed sufficient. This
recognizance is vacated when the infant comes of age. No re-
coonizance in modern practice is required from the guardian of
the person who is appointed where the infant has been made a
ward of chancery during the pendency of a suit. Nor is it given
by guardians selected by the court for special purposes ; as, for
instance, to give formal consent to an infant's marriage under
Lord Hardwicke's act. In a word, the chancery rule appears
to be that guardians of the estate give security for the perform-
ance of their trust, but guardians of the person none. Special
circumstances may, however, arise for requiring recognizance
from the latter.^
Since the active management of the infant's estate is fre-
quently entrusted to a receiver, selected as an officer of the
court, the latter is also bound to account annually and pay his
balances into court. For performance of these duties he gives
proper security ; and he is allowed a salary for his services .^
§ 366. American Rule ; Bonds of Probate and other Guardians.
— In this country, as we have seen, most guardians of the es-
tate are what may be termed probate guardians, deriving their
authority under the appointment of courts which most resemble
the old ecclesiastical courts of England. The practice which
has grown up in most of the States, as well as our statute law,
places guardians, therefore, in many respects, on the same foot-
ing as executors and administrators. Like such officers they
give bonds, file inventories, and render regular accounts to the
court ; and the same principles which apply to the one class, in
these respects, apply also to the other.
A probate guardian, before receiving from the court his let-
ters of appointment, is obliged to give bond, with good security,
for the faithful performance of his trust. As such guardian is
entrusted with both the person and estate of his ward, the lan-
guage of his bond should be framed accordingly. In some
1 Macphers. Inf. 108, 348, 553 ; 2 eery practice in New York, see In re
Kent, Com. 227. Morrell, 4 Paige, 44; Minor v. Betts, 7
2 Macpliers. Inf. 266. As to chan- Paige, 696.
644
CHAP. Vlll.] guardian's BOND, ETC. § 366
States the statute prescribes the terms substantially as follows :
To make a true inventory of the ward's estate which shall come
to his possession or knowledge ; to manage the property accord-
ing to law and the best interests of the ward, and to discharge
his trust faithfully in relation thereto; to render regular ac-
counts to the court ; and, finally, to make due settlement with
the ward or other person lawfully entitled at the expiration
of his trust. The bond, in case of an infant, stipulates for a
faithful discharge of duties as to custody, education, and main-
tenance; but where the ward is an adult insane person or
spendthrift, for custody and maintenance only.^
The penal amount of the guardian's bond, as in other cases, is
usually fixed at double the amount of the estate to be accounted
for. The sureties are to be approved by the court. When such
sureties are insolvent or the penal sum named in the bond is
insufficient, or from any other cause the bond becomes unsatis-
factory, a new bond may be ordered with such security as the
court deems proper. This bond is made payable to the judge
or his successors in office, and is kept on file, to be sued in
behalf of the ward or by any other person who may be injured
by the misconduct of the guardian while in office. ^
1 Smith's Prob. Pract. (Mass.) 88, lapse of time, to be merely in escrow.
89. As to dispensing with sureties Ordinary v. Thatclier, 41 N. J. L. 403.
where a fidelity company guarantees A bond filed and executed by two
the bond, see 1 Dem. (N. Y.) 75. sureties, though calling in its premises
2 See Mass. Gen. Sts. c. 101 ; lb. c. for three, may bind the two. Ordinary
109 ; Bennett v. Byrne, 2 Barb. Ch. v. Thatcher, 41 N. J. L. 403. In gen-
216; Brunson v. Brooks, 68 Ala. 248. eral, sureties as well as the guardian,
A succeeding guardian may of course are estopped by the delivered bond it-
sue such bond. Voris v. State, 47 Ind. self from denying its legal effect on the
345. The probate guardian ought to ground of fraud by the guardian, or
file an approved bond before being con- arrangements with him as to other sig-
sidered duly qualified. The court can- natures, &c., to which the court, the
not, after appointing him guardian of ward, and parties to be protected by
one child, appoint him guardian of the bond were not privy. Vincent v.
another subsequent!}', and then order Starks, 45 Wis. 458 ; Sasscer y. Walker,
the former bond to stand for both. 5 Gill & J. 102; State v. Hewitt, 72 Mo.
Vanderburg v. Williamson, 52 Miss. G03 ; Brown ?;. Probate Judge, 42 Mich.
2.33. Some statutes hold the judge to 501. Even if the guardian's appoint-
careful inquiry into tlie sufficiency of ment was void for want of jurisdiction,
sureties liefore accepting them. Colter the sureties are held liable with him
V. Mclntire, 11 Bush, 565. Delivery of for his quasi guardianship under which
a guardian's bond to the proper office he obtained tiie properly. Corbitt v.
cannot readily be shown, after long Carroll, 50 Ala. 315. A guardian's
35 545
§ 366 THE DOMESTIC RELATIONS. [PART IV.
A probate bond may be good, though inartificially drawn, if
substantially in compliance with the statute.^ And if it con-
tains more than the law requires, it is nevertheless good for
such portion as is lawful.^ ]>ut perhaps not, if it contains less.
A bond is not to be avoided for slight defects committed
through carelessness or error. In some instances defective
bonds have been cured in equity, so as to hold both principal
and sureties, and have been made enforceable even though void
at law.^ Material erasures on the face of the bond may be ex-
plained, and the presumption is fair that they were made before
delivery.^ A bond is not vitiated which contains a proper re-
cital of the ward's name, although there be a discrepancy in
names between the bond and letters of guardianship ; and yet
sureties have been relieved from liability on the ground that the
ward was not named in the bond at all.^ The true principle
which distinguishes such cases seems to be that the identity of
the parties should sufficiently appear.
Where there are several wards, one probate bond is sufficient
for all.^ But separate bonds for each ward would not be im-
proper, and, in some instances, might be even preferable. The
names of all the wards should be embraced in the bond, where
only one is furnished.
Natural guardians are not required to give bond. Nor were
bond held good, although there was a 202 ; Alston v. Alston, 34 Ala. 15; Or-
blank where the penalty is ordinarily dinary v. Heishon, 42 N. J. L. 15.
written, and no penalty was stated. ^ Pratt w. Wright, 13 Gratt. 175.
102 Ind. 214. Nor was it invalid for 8 Wiser u. Blachly, IJohns. Cli. 607 ;
want of approval. lb. Sikes i'. Truitt, 4 Jones Eq 361 , Bum-
A guardian's bond is not converted pus v Dotson, 7 Humph. 310.
from a statutory to a common-law * Xander i'. Commonwealth, 102
bond merely because it contains pro- Penn. St. 4.34. This presumption may
visions not required in the statutory be rebutted.
form, which are in accordance with ^ Shuster v. Perkins, 1 Jones, 325;
law. McFadden v. Hewett, 78 Me. 24. Greenly v. Daniels, 6 Bush, 41 ; State
But the legality of an appointment r. Martin, 69 N. C. 175; Shroyer v.
may he denied by virtue of recitals in Richmond, 16 Ohio St. 455; Richard-
a bond which are senseless and un- son v. Boynton, 12 Allen, 188. Bond
certain. Hayden v. Smith, 49 Conn, not invalid where a blank was left for
83. The surety is estopped when sued the initials of the wards' names. 41
to deny the appointment of the guar- Ark. 254.
dian as recited in tlie bond. 82 Ind. ^ Cranston t). Sprague, 3 R. I. 205 ;
126 Ordinary v. Heishon, 42 N. J. L. 15.
1 Probate Court v. Strong, 27 Vt.
546
CHAP. VIII.] guardian's BOND, ETC. § 367
guardians in socage. Nor, in England, are testamentary guar-
dians to furnish security to the court. The reason is that these
guardians were not judicially appointed nor answerable in gen-
eral to the court. The same law prevails in many parts of this
country.^ But in some States testamentary guardians are
treated like executors, in respect to their appointment ; that is
to say, the will which names them must be admitted to probate
and letters issued ; and the testator's appointment is made
subject to judicial approval. In such cases the testamentary
guardian, like the executor, is required to give security ; but he
may be exempted from giving sureties, if the testator requested
such exemption and the court deems it safe to grant the
request.^
§ 367. The Same Subject ; Liability of Guardian and Sureties,
— The bond of a probate guardian renders him and his sureties
liable for all estate of the ward which shall come to his pos-
session or knowledge. This includes chattels due from the
guardian to the ward at the time of his appointment or of the
execution of the bond, even though the fund be the proceeds of
land already sold and paid for, and the rent of real estate occu-
pied by the guardian before that time. It embraces chattels
and rents and income from every species of property that the
guardian actually receives in his official capacity, or that he
might have received if he had faithfully performed his duties.^
Property received from persons resident in another State is cov-
ered by the bond as much as property originally within the
jurisdiction * But while the property is beyond his reach, and
cannot be obtained without a foreign appointment, the liability
of his bondsmen would not seem to extend beyond a general
dereliction of duty on his part in neglecting the proper means
of obtaining it. The bond of guardians of foreign wards, ap-
1 See supra, cs. 1, 2 ; Thomas v. Wil- Neill v. Neill, 31 Miss. 36 ; Bond v. Lock-
liams, 9 Fla. 289. wood, 33 111. 212 ; Williams v. Morton,
2 See Mass. Gen. Sts. c. 109. A 38 Me. 47; McClendon v. Harlan, 2
testamentary guardian will be ordered Heisk. 337 ; Hunt v. State, 53 Ind.
to furnish security whenever the court's 321.
interposition appears proper. 13 Phila. * McDonald v. Meadows, 1 Met.
213. (Ky.) 507 ; Brooks v. Tpbin, 135 Mass.
8 Mattoon v. Cowing, 18 Gray, 387; 69; State v. Williams, 77 Mo. 463.
647
§ 367 THE DOMESTIC RELATIONS. [PAKT IV.
pointed for recovering estate situated in their own State, binds
them to account only for such property, nor can they be held
liable for the custody of the wards while the latter remain non-
residents. A legacy due from the executor of the ward's father,
and other estate lawfully payable to the guardian by the execu-
tor, must all be accounted for, and for this the guardian's sure-
ties are doubtless liable. The bond covers property of the ward
obtained by the guardian and disposed of before his appointment
and charged in account.^ But for property unlawfully received
by the guardian, although he may be compelled to account for
it on his personal responsibility, his sureties are not liable,
since it does not come to his hands as guardian.^ Where the
guardian loans his ward's money improvidently, he and his
sureties become and continue liable for it.^
The liability of sureties lasts while the responsibilities of the
guardianship continue, and it does not terminate by the resigna-
tion or death of the guardian. For the ward's estate in the
guardian's hands or subject to his control at the time of his
death, they continue liable.* Not even the statutory limitation
to suits against executors and administrators operates to relieve
such sureties for the default of their deceased principal.^ The
estate of a deceased surety is liable for a default of the guardian
which occurred after such surety's death, and before final settle-
^ Sargent v. Wallis, 67 Tex. 483. where the guardian removes from
2 Livermore v. Bemis, 2 Allen, 394 ; the State without accounting. 81 Ind.
Allen V. Crosland, 2 Rich. Eq. 68 ; Bal- 455. Or where he converts the ward's
lard V. Brummitt, 4 Strobh. Eq. 171. money before giving a bond and after-
As to liability where court ordered a wards replaces it, but fails to account
deposit of money, see Griffith v. Parks, for tlie money so replaced. 80 Ind.
32 Md. 1. Guardian's bondsmen held 155.
liable for the full amount of insurance The guardian's sureties are not lia-
policy on the life of the father taken ble for money paid over to a guardian
for two children, one of whom died by executors contrary to directions of
soon after the father Carr v. Askew, the will. Hindman v. State, 61 Md.
94 N. C. 194. For a claim assigned by 471.
the widow against the administrator of ^ Richardson v. Boynton, 12 Allen,
the estate of the child's father. 22 138.
S. C. 147. For the guardian's failure * Moore w. Wallis, 18 Ala. 458; State
to make a reinvestment. 81 Ky. 158. r. Thorn, 28 Ind. 306; Ashby v. John-
For a loss occurring by reason of a ston, 23 Ark. 163.
transfer of the estate by tlie guardian ^ Chapin w. Livermore, 13 Gray,
to one erroneously supposed to be a 561 ; Ordinary v. Smith, 56 Ga. 15.
qualified successor. 90 N. C. 72. Or
548
CHAP. VIII.] guardian's BOND, ETC. § 367
ment of the trust.^ Sureties are liable so long as the ofhcial
bond can be sued at all. But a surety may be discharged at
any time upon his petition and after due notice to all parties
interested ; and thereupon the court will order the guardian to
furnish new security, and, upon his failure to do so, may remove
him. But such surety remains liable until the new bond is
approved ; ^ and for any previous embezzlement or other mis-
conduct committed by the guardian he must still respond.^
The personal representative of a deceased surety, it would
appear, may compel the guardian to furnish new security in
like manner.* The approval of a new bond and the discharge
of a former surety terminate ipso facto the liability of such
surety so far as new acts of the guardian are concerned, not-
withstanding the security substituted may prove insufficient, or
the instrument fatally defective.^ Release of a surety is not to
be readily presumed.^ One surety cannot be discharged from
his liability without the other, unless the latter by words or
acts shows his consent to remain solely responsible."
The sureties on a guardian's bond, though liable, it may be,
for money received by the guardian before the bond was made,
are not liable for what he receives after havincf resigned or
been removed from office.^ And where a ward dies and the
1 Voris V. State, 47 Ind. 345; Cot- stead of a retiring surety. 15 Lea, 618;
ton V. State, 64 Ind. 578. See Brooks 103 III. 142.
V. Rayner, 127 Mass. 268. 6 Wann v. People, 57 111. 202.
•^ Jamison v. Cosby, 11 Humph. 273; ^ ggg Newcomer's Appeal, 43 Penn.
Mass. Gen. Sts. c. 101 ; Bellune i;. Wal- St. 43; Sebastian v. Bryan, 21 Ark.
lace, 2 Rich. 80. 447 ; Frederick v. Moore, 13 B. Monr.
3 Eichclberger y. Gross, 42 Ohio St. 470; Boyd v. Gault, 3 Bush, 644.
549 ; Yost v. State, 80 Ind. 350. Where a guardian has once been dis-
■* Moore v. Wallis, 18 Ala. 458. The charged with money in his hands not
heirs of a deceased surety are not lia- paid over, and is subsequently reap-
ble jointly with the principal on the pointed, and accounts only for money
bond. Strickland v. Holmes, 77 Me. received since reappointment, the sure-
197. Wiiere a guardian, after the ties on his first bond are liable. Nau-
death of one suretj% gives another bond gle v. State, 101 Ind. 284. See Bond
witli other sureties conditioned like the r. Armstrong, 88 Ind. 65, for the rule
first, though with larger penalty, the where a guardian in default gave a
sureties on both bonds are co-sureties, new bond and then committed other
Stevens v. Tucker, 87 Ind. 109. defalcations and died, his estate pay-
5 Hamner v. Mason, 24 Ala. 480. ing a percentage on the entire defal-
See Kendrick v. Wilkinson, 18 Ind. cation. For the California rule see
206. A surety may sign an old guar- Spencer v. Houghton, 68 Cal. 82.
dian's bond as well as a new one, in the * Merrells v. Piielps, 34 Conn. 109.
549
§ 367 THE DOMESTIC RELATIONS. [PART IV.
guardian admiuisters upon his estate, the liability for the assets
formerly held by the latter as guardian becomes transferred to
him as administrator, and the sureties on his administration
bond are made liable in place of those who were his bondsmen
in the guardianship. ^ But redress for a guardian's conversion
should be sought on the bond or bonds in force at the time ;
and the question is not when does the guardian charge himself
with assets, but when do they come to his possession or knowl-
edge as guardian.^
Where the guardian has filed an additional bond, as in case
of a large accession to the original estate, both bonds remain
valid, the new bond is taken as a cumulative security and the
sureties (as such statutes are generally construed), are all
deemed co-sureties, and liable as such.^ And a bond volun-
tarily offered by the guardian and approved in the ordinary
form is as binding as though it had been ordered by the court.*
Where, however, the sureties of an old bond are discharged and
a new bond is substituted, the usual rule is that the old sureties
and the new are liable together as co-sureties for the defaults
of the guardian, previous to filing the new bond, and that the
new sureties alone bear the responsibility of his subsequent
misconduct.^ But the liability of a surety on a new bond given
But as to payments made to some per- v. Slirout, 1 Monr. 206 ; Jones i-. Blan-
Bon by one not aware that his authority ton, 6 Ired. Eq. 115; Amnions v. Peo-
has been revoked, see Sage v. Ham- pie, 11 III. 6; Sayers v. Cassell, 23
monds, 27 Gratt. 651. See Downing v. Gratt.525 ; McGloshlin v. Wyatt, 1 Lea,
Peabody, 56 Ga. 40. 717 ; State v. Page, 63 Ind. 209. The
1 Baker v. Wood, 42 Ala. 664. language of a local code must be re-
2 Lowry v. State, 64 Ind. 421 ; John- sorted to for the rule in such cases as
son V. McCullough, 59 Ga. 212. And to the discharge of former bondsmen
see 86 N. C. 190, wliere one is adminis- from liability. See Sayers v. Cassell,
trator and guardian. 23 Gratt. 525. A periodical statutory
3 Loring v. Bacon, 3 Gush. 465 ; bond is required in some States, and
Commonwealtli v. Cox, 36 Penn. St. even such bonds are held to be cumu-
442; Allen v. State, 61 Ind. 268. In lative, under the statute, as to the
absence of positive evidence of the wards, though contribution is in in-
tinie of any misconduct, the sureties verse order of execution. Tennessee
are all liable in this case for the entire Hospital v. Fuqua, 1 Lea, 608. A surety
guardianship. Douglass v. Kessler, 57 is not liable for money paid the guar-
Iowa, 6.3. And see 87 Ind. 109. dian on account of a ward who at the
* Potter V. State, 23 Ind 550. time of payment was of age. Sheton
5 Loring v. Bacon, 3 Cush. 465 ; Bell v. Smith, 59 Tenn. 82. A surety's con-
V. Jasper, 2 Ired. Eq. 597 ; Hutchcraf t tingent liability, being provable against
550
CHAP. VIII.] guardian's BOND, ETC. § 368
in place of the original one is in some States treated as pro-
spective only, on the equitable principle that, where the statute
bond does not plainly express a retrospective operation, such
should not be its construction.^ Contribution is in proportion
to the penal sum named in the respective bonds.
§ 368. The Same Subject — Many of the decisions in regard
to administration bonds apply on principle to those of guardians.
Thus a bond which is not signed by the guardian is not binding
even upon his sureties.^ And if altered, after being signed by
two sureties, with the consent of the principal only, and then
signed by two other sureties, ignorant of the alteration, it is not
binding upon any of the sureties ; not upon the two first,
because altered without their consent ; not upon the other two>
because they were not informed of the release of the two
former.^ But fraud practised in obtaining a surety's signature
affords the surety whose confidence was misplaced, no defence
when sued on the bond, as against those his conduct led to rely
upon it.'^ So joint guardians who wish to limit their respective
liabilities must furnish separate bonds ; since both are respon-
sible for all the acts of each other during the continuance of
the joint guardianship where they execute a joint bond.^ And
the usual rule is that no more than the penal sum named
in the bond can be recovered upon it, unless it be by way of
interest or costs.^
him in baiikruptcy proceedings, may that the misappropriation was after-
thus have been avoided. Davis v. wards. Clark v. Wilkinson, 59 Wis.
McCurdy, 50 Wis. 569. But not a 543. See, further, 67 Ala. 406 ; Blind,
guardian's. Re Maybin, 15 Bankr. 433.
Reg. 468. Sureties on a bond are not i Lowry i-. State, 64 Ind. 421 ; State
usually liable for past defaults. State v. Shackleford, 56 Miss. 648.
V. Jones, 89 Mo. 470; Me Williams v. 2 Wood v. Washburn, 2 Pick. 24.
Norfleet, 60 Miss. 987. But a substi- ^ Howe v. Peabody, 2 Gray, 556.
tuted surety is liable for money re- * Xander v. Commonwealth, 102
ceived before by the guardian. Tuttle Penn. St. 434.
V. Northrop, 44 Ohio St. 178. Or for ^ Brazier r. Clark, 5 Pick. 96 ; Spar-
money already lent to a firm which hawk v. Buell's Adm'r, 9 Vt. 41 ; Boyd
afterwards turns out insolvent. Mc- v. Boyd, 1 Watts, 365. But see Wil-
Williams v. Norfleet, 63 Miss. 183. The liams.?'. Harrison, 19 Ala. 277.
sureties on a guardian's additional ** Tyson t. Sanderson, 45 Ala. 364;
bond may be liable for his failure to Schouler, Pers. Prop. 465-470; Wilson
account for money on hand when it Re, 38 N. J. Eq. 205.
was given ; the presumption being
551
§ 370 THE DOMESTIC RELATIONS. [PAET IV.
§ 369. The Same Subject ; Special Bond in Sales of Real
Estate. — A special bond is in many States required where a
guardian is licensed to make sale of his ward's real estate.
Where real estate has been sold by a guardian, and the pro-
ceeds remain unaccounted for at the expiration of his trust, it
is a question whether the sureties on his general bond shall be
held responsible, or those on the special bond given for sale of
the real estate. The best authority is in favor of charging the
latter and not the former sureties for the guardian's mis-
application of such moneys,^ unless the default be such that
the misapplication cannot be identified. The rule in Massa-
chusetts, where a guardian, who has been licensed to sell real
estate for the purpose of investment, fails to invest, and charges
himself instead, in his accounts, with the proceeds and interest
from year to year, has been to hold him responsible for the pro-
ceeds of the sale upon his special bond, but for the interest
upon his general bond.^ The omission to give a special bond
for the sale of real estate is, on the foregoing principles, no
breach of the guardian's general bond.
§ 370. The Guardian's Inventory. — One of the probate guar-
dian's first duties after his appointment is to file an inventory
of the ward's effects. This is a schedule, prepared by discreet
1 Williams v. Morton, 38 Me. 47; bond. Stevenson r. State, 69 Ind. 257;
Brooks v. Brooks, 11 Cush. 22; Potter Stevenson v. State, 71 Ind. 52. See
V. State, 23 Ind. 607 ; Fay v. Taylor, also Colburn v. State, 47 Ind. 810, as
11 Met 529 ; Hlauser v. Diehl, 90 Penn. to real-estate sale on application of an-
St. 850 ; Madison County v. Johnston, other than the guardian.
51 Iowa, 152 ; 65 Iowa, i06; Morris v. ^ Mattoon v. Cowing, 13 Gray, 387.
Cooper, 35 Kan. 156; Henderson v. See Pratt v. McJunkin, 4 Rich. 5.
Coover, 4 Nev. 429 ; Withers v. Hick- Sureties on the guardian's general bond
man, 6 li. Monr. 292. See Andrews' are liable where the ward's land is sold
Heirs Case, 3 Humph. 592. In some in partition proceedings. Hooks v.
States the requirement of an additional Evans, 68 Iowa, 52. Where both gen-
or special bond in such case is matter eral and special bond are given, and
of judicial discretion. See Vanderburg the guardian's default makes it impossi-
V. Williamson, 52 Miss. 233. In other ble to ascertain whether the money un-
States such bond is auxiliary and post- accounted for consisted of proceeds of
poned to the original bond. 21 Fla. the land or not, suit may be brought
1.36. As to releasing sureties and tak- against either set of bondsmen. 80
ing a new bond before confirmation Ind. 350. As to moneys derived under
of the sale, see 62 Miss. 786. The a sale of land, not perhaps authorized,
court, by altering the terms of sale, &c., the bondsmen cannot set up want of
does not impair the obligation of such authority. 96 N. Y. 260.
552
CHAP. VIII.] GUAKDIAN's INVENTORY. § 370
and disinterested persons, and verified by their oath, wherein
the amount of the ward's estate, both real and personal, together
with the separate items, are duly entered at a just valuation.
The inventory serves as the basis of the guardian's accounts,
and primarily fixes his liability. Here again the statute rela-
tive to infants borrows from the long-established practice of the
English ecclesiastical courts, with regard to the administration
of estates. But one inventory is in general necessary ; and
if subsequent effects come to the guardian's hands, he will
place them in his accounts to the ward's credit. It is to be
observed that though probate inventories are prima facie evi-
dence of the existence of assets and their true valuation, they
are by no means conclusive. And the guardian may show, in
rendering his accounts, that he was not chargeable with certain
items which therein appeared, or that the sale of property
realized less than its appraised worth ; and he will be credited
accordingly. On the other hand, property omitted from the
inventory, which comes within the guardian's reach in any
manner, should be accounted for, as well as all gains realized
over and above the appraisers' valuation. During the long
period for which a guardian's authority frequently lasts, the
inventory may become of little practical consequence, except as
furnishing for himself the starting-point in his system of
accounts, and determining, for the convenience of others inter-
ested, the fact and extent of his original liability. And as the
ward's real estate is to be preserved intact unless a sale is
ordered, the guardian's account, like that of an administrator,
usually in this country starts with the amount of personal
estate according to the inventory, taking into his reckoning only
the income and expenditures from the real estate until some
sale of land is actually made. If two or more persons under
guardianship are interested in different property, or have un-
equal interests in the same property, separate schedules should
be rendered for each.^
1 Matter of Seaman, 2 Paige, 409 ; 222 ; Green v. Johnson, 3 Gill & Johns.
Hooker v. Bancroft, 4 Pick. 50 ; Mass. 388 ; Fogler v. Buck, 06 Me. 205. And
Gen Sts. cs. 100, 109 ; State v. Stewart, see, as to inventories general!}', 1 Wins.
36 Miss. 652; Clark >•. Wliitaker, 18 Ex'rs, 878-883 ; Schouler, Ex'rs, Part
Conn. 543 ; Fuller v. Wing, 5 Shep. III. c. 2. A guardian's sureties are
653
§ 372 THE DOMESTIC DELATIONS. [PART IV.
§ 371. The Guardian's Accounts ; English Chancery Practice.
— The accounts of guardians are in England subject to the
direction of the Court of Chancery. Guardians and receivers
who have entered into recognizance as officers of the court are
compelled to present their accounts on application made by any
person interested. Such proceedings are by petition, or on
motion filed. Receivers are expected to pass their accounts
regularly, and a guardian is compelled to account by enforcing
his recognizance. The common rules as to executors and trus-
tees apply to guardians. But unless there is misconduct shown,
the guardian need not show specifically how he has used the
sum allowed as maintenance. A receiver's accounts are some-
times examined on application of strangers. Mr. Macplierson
says that there is scarcely a modern instance to be found where
an account has been taken from a guardian without suit.^ In
like manner, equity treats as guardians all persons who take
possession of an infant's estate, whether duly authorized to act
or not, and obliges such persons to account, on application made
by the infant himself, or on his behalf.^
§ 372. The Guardian's Accounts ; American Practice; Periodi-
cal and Pinal Accounts, &c. — Courts of equity in this country
are doubtless authorized to entertain like proceedings against all
quasi guardians.^ But under our statutes probate guardians,
duly appointed, are invariably made liable to account, in the
first instance, to the local court issuing letters of guardianship,
which thus becomes, in fact, the general depository of accounts
relative to the estates of deceased persons and wards. The im-
mediate jurisdiction over the settlement of guardians' accounts
is usually, therefore, in the probate court.
An important distinction is observable in the American prac-
tice concerning the accounts of probate guardians, between the
final account and those rendered from time to time as the local
practice may require pending the minority of the ward. The
not precluded by the inventory from ^ Macphers. Inf. 108 ; 76. 259, 348.
sliowing the true ownership of alleged ^ /ft. 259 ; Story, Eq Juris. § 1195;
assets. Sanders v. Forgasson, 3 Baxt. Morgan v. Morgan, 1 Atk. 489.
249 An Indiana statute makes the duty ^ Chaney v. Smallwood, 1 Gill, 367;
of a guardian to file an inventory im- next chapter.
perative. Wood v. Black, 84 Ind. 279.
654
CHAP, vrii.] guardian's accounts, etc. § 372
rule is that these intermediate accounts, although judicially
approved and passed, are by no means conclusive. They serve
to show the guardian's liability and to keep the court informed
of the general condition of the trust funds, to determine when
the guardian's bond should be increased, and to ascertain as to
the propriety of sales and investments. Such accounts remain
prima facie evidence of the sum of the guardian's indebtedness
to his ward, and are prima facie correct accounts but nothing
more.^ Actual notice to the ward by citation is not indispen-
sable to intermediate accounts.^ The privilege remains to the
ward, as we shall notice in the next chapter, of disputing their
accuracy when he comes of age. But on the final account of
the guardian, which is to be rendered at the expiration of his
trust, the question comes before the court as to the general fair-
ness of his management, and items allowed in former accounts
may then be stricken out as improper. The reason of this is
that the cestui que trust had no earlier opportunity of judging
as to the correctness of the trustee's accounts, and ascertaining
that final balance, which is, after all, the estate in controversy.
So, too, a guardian in his final account should be allowed to
correct errors to his prejudice, satisfactorily proved to exist in
his prior accounts, both as to matters of form and substance.^
But the final account, once examined and approved by the
court, and not reversed on appeal, the ward's period of object-
ing to the same having also expired by limitation, such account,
together with all which preceded it, concludes all parties inter-
ested, and cannot be reopened or annulled in any court ; cer-
tainly not unless by direct proceedings to obtain a reversal or
setting aside for fraud or manifest error : perhaps in some States
not at all.*
1 Douglas's Appeal, 82 Penn. St. v. Pegram, 101 Mass. 592 ; 81 Ala.
169 ; Bourne v. Maybin, 3 Woods C. C. 435.
724 ; Ashley v. Martin, 50 Ala. 5-37 ; * Boynton v. Dyer, 18 Pick. 1 ;
Matlock y. Rice, 6 Heisk. 33; Davis ". Diaper v. Anderson, .37 Barb. 168;
Combs, 38 N. J. Eq. 473 ; State v. Jones, Manning v. Baker, 8 Md. 44 ; AUman
89 Mo. 470 ; 62 Md. 4-27. v. Owen, 31 Ala. 167 ; Reynolds v.
- Davis V. Combs, supra. Walker, 29 Miss. 250; State i-. Strange,
3 Crump I'. Gerock, 40 Miss. 765; 1 Cart. 538; Stevenson's Appeal, .32
Burnham v. Dalling, 1 C. E. Green, Penn. St. 318; Cumminijs v. Cum-
144 ; Willis v. Fox, 25 Wis. 646 ; Blake niings, 128 Mass. 532 ; Holland v. State,
555
§ 372 THE DOMESTIC RELATIONS. [PART IV.
With probate guardians it is the usual practice to present
accounts with vouchers annually, and in some States once in
three years, or as otherwise directed by the court, the parties
in interest other than the ward having been first cited, unless
their approval appears upon the face of the account. The ac-
count is considered by the court and passed after due examina-
tion, upon the oath of the guardian. The vouchers are retained
by the guardian, but the account is recorded and filed in the
court.^ The accounts of wards having different and unequal
interests in property should be rendered separately .^ But the
fact that a guardian of two wards invested on their joint ac-
count without distinguishing their several interests is no reason
why the investment should be disallowed, if sufficiently for each
ward's benefit.^ In some States the guardian's final account
must embrace all items contained in his prior accounts, and not
begin with the balance on the last one ; but the practice in this
respect is not uniform in the United States.* Guardians some-
times make settlements out of court, rendering no returns ; but
this practice is not common where the infant's estate is large ;
nor is it safe, since the failure to account is a breach of the
48 Ind. .391 ; Brent v. Grace, 30 Mo. ^ As to the effect of annual settle-
253 ; Seaman v. Duryea, 1 Kern. 324 ; ments where the public records have
Yeager's Appeal, 34 Penn. St. 173 ; been destroyed, see Kidd v. Guibar, 63
Lynch v. Rotan, 39 111. 14 ; Smith v. Mo. 342. The contents may be proved
Davis, 49 Md. 470. Similar rules ap- by parol. lb. The guardian's final
ply often, as in settlements by execu- account should purport on its face to
tors and administrators. Irregular al- be such. Bennett v. Hanifin, 87 III.
lowance of a guardian's account upon 31. While in force it is an adjudica-
an alteration, and the discharge there- tion of the matters lawfully embraced
upon of the guardian, all without no- therein. Briscoe v. Johnson, 73 Ind.
tice to the ward, cannot bo permitted 573.
to deprive the latter of his rights. Bu- ^ Armstrong v. Walkup, 9 Gratt.
chanan i'. Grimes, 52 Miss. 82. The 372 ; State v. Toy, 65 N. C. 265. A
administrator of a deceased ward can- consolidated account for several wards
not ignore a final settlement of the having unequal interests should be re-
gua dian's accounts, duly made and re- jected by the court. Crow v. Reed,
corded, and cause another decree to be 38 Ark. 482; Wood v. Black, 84 Ind.
entered in the same court. Foust v. 279.
Chamblce, 61 Ala. 75. When the ^ Nance v. Nance, 1 S. C. n. s.
guardian's settlement is surcharged in 209.
equity, the particular items objection- * Foltz's Appeal, 55 Penn. St. 428.
able should be specified. Tanner v. The last of the periodical accounts may
Skinner,, 11 Bush, 120. See 85 N. C. suffice. Woodmansie v. Woodmansie,
199. ' 32 Ohio St. 18.
556
CHAP. VIII.] guardian's ACCOUNTS, ETC. § 372
guardianship bond, and renders the sureties and the guardian
himself liable. Any party in interest may compel the guardian
to present his accounts years after the guardianship is at an
end, notwithstanding he has a receipt in full from the ward ;
for no mere lapse of time can be set up against a trust, except
that the usual limitation to suits on specialties might determine
the remedies of parties aggrieved as against the guardian and
his sureties.^ But lapse of time, taken in connection with other
circumstances showing a due execution of the trust, wall be
favorably regarded ; and the guardian's account need not then
be so strictly made up and proved as would be otherwise neces-
sary.^ Where no effects have come to the guardian's possession
or knowledge, he need not file either inventory or account ; but
so soon as there is property his liability becomes fixed ; and he
cannot be exempted from account on the ground that the ward's
estate does not more than balance his own outlays and expenses.
The final account is not allowed by the court, until the ward
has had the opportunity of examining it.^
But on the termination of a guardian's trust, pending the
infancy of the ward, a final account is sometimes allowed after
due notice to parties interested, and examination by a suitable
guardian ad Litem on the ward's behalf ; and thus, too, may it
be with an intermediate account; not, however, as it would
usually appear, so as to absolutely debar the ward from dis-
puting the account afterwards on reaching majority.* It is the
duty of every guardian, whose trust as such is revoked, to ac-
count honestly to the late wards, or to his successor in the trust
if there be one, for their estate. Thus, a guardian cannot dis-
charge himself by simply turning over to his successor the
latter's note for an individual debt due the guardian and taking
a receipt in full ; but he will still be bound in equity to the
1 Clarke v. Clay, 11 Fost. 393 ; Bard 332 ; Whitney v. Whitney, 7 S. & M.
V. Wood, 3 Met. 74 ; Crane v. Barnes, 740.
1 Md. Ch. 151; Wade v. Lobdell, 4 * See Smith, Prob. Pract. 182 ; Ra-
Cush. 510 ; Gilbert v. Guptill, 34 111. coiiillat v. Requena, 30 Cal. 651 ; Blake
112. See next chapter. v. Pegram, 101 Mass. 592; Jones v.
2 Gregg V. Gregg, 15 N. H. 190; Fellows, 58 Ala. 343; Hutton v. Wil-
Pierce r. Irish, 81 Me. 254; Smithy, liams, 60 Ala. 1.33. A final settlement
Davis, 49 Md. 470. with minor wards should not precede
3 Woodbury ?■. Hammond, 54 Me. resignation. Glass i'. Glass, 80 Ala. 241.
557
§ 373 THE DOMESTIC RELATIONS. [PART IV.
ward unless he transfers the ward's property, or money in lieu,
or good securities, such as are admitted to be proper invest-
ments.^ Permitting a guardian to resign or removing him is,
of course, no judgment that a full settlement and accounting
has been had.^ And the collusive appointment of a successor,
together with a collusive settlement, cannot conclude the rights
of the defrauded party in interest.^
§ 373. The Same Subject. — Where the same person is both
the executor of the parent's estate and guardian of the infant
heir, he should first settle his executor's account, and then
transfer the balance by way of distributive share to the account
of guardianship.* Accounts of joint guardians may generally
be rendered on the oath of one of them.^ Where a guardian
dies, resigns, or is removed, his final account must be presented,
and it is the successor's duty to see that the former guardian
is held to a strict compliance with his bond ; since otherwise
he may make himself liable to the ward.^ The final account of
a deceased guardian is properly presented by his personal rep-
resentatives, who may be cited into court for that purpose ; but
for a deficit beyond the actual assets in their hands, the sureties
must answer.'^ Hence the administrator of a deceased surety
has been sometimes permitted to supply the missing final
account.^ The administrator of a deceased guardian cannot
1 Sage V. Hammonds, 27 Gratt. 651 ; ^ See Mass. Gen. Sts. c. 101. As to
Manning c. Manning, 61 Ga. 137 ; Coles blending accounts as guardian and
r. Allen, (J4 Ala. 98. See State v. Bolte, trustee, see Lewis v. AUred, 57 Ala.
72 Mo. 272. 628.
2 King (;. Hughes, 62 Ga. 600. No 6 Sage v. Hammonds, 28 Gratt. 651.
such settlement is practicable, in fact, '' Gregg v. Gregg, 15 N. H. 190 ;
as many American codes should be Royston v. Royston, 29 Ga. 82 ; Peck
construed, until at all events the ward v. Braman, 2 Blackf. 141 ; Waterman
has reached full age, or a new probate v. Wright, 36 Vt. 164; Farnsworth v.
guardian is fully clothed with his Oliphant, 19 Barb. 30 ; State v. Grace,
office. 26 Mo. 87 ; Hemphill v. Lewis, 7 Bush,
3 Ellis V. Scott, 75 N. C. 108 ; Man- 214. Nor can such surety allege waste
ning V. Manning, 61 Ga. 137. on the part of the guardian's adminis-
* Conkey v. Dickinson, 1.3 Met. 51 ; trator, as against the ward. Humphrey
Mattoon v. Cowing, 13 Gray, 387; v. Humphrey, 79 N. C. 396. As to
O'Hara v. Shepherd, 3 Md. Ch. 306; rendering account when guardian died
Crenshaw v. Crenshaw, 4 Rich. Eq. 14; long after his ward's majority, see 65
State V. Tunnell, 5 Harring. 94 ; Runkle Cal. 228.
V. Gale, 3 Halst. Ch. 101 ; 9 Rich. Eq. 8 Curtis v. Bailey, 1 Pick. 198.
408.
558
CHAP. VIII.] guardian's ACCOUNTS, ETC. § 374
invest the ward's funds ; nor can he discharge the guardian's
general indebtedness by setting apart certain effects of the
guardian's estate for that purpose.^ Where a guardian absents
himself and has left an attorney in charge of the estate, such
attorney may, in Pennsylvania, be summoned by the court.^
It would appear that a guardian cannot be cited to render a
final account before the ward's majority, unless his trust has
been first determined ; and that his balances should, in such
case, be paid to a successor and not to the court.^
The decree of the court allowing a partial account, wherein
an item is omitted or improperly stated, does not relieve the
guardian from liability for the error on his subsequent accounts.
He must make the necessary correction as soon as possible.
If notes are inventoried and the guardian's accounts do not
charge him therein with the interest thereon, or credit him with
their loss as worthless, the presumption is that he has em-
bezzled the property or else neglected to make collections ; and
in either case he is chargeable for the full amount.* The ac-
counts should include only transactions between guardian and
ward, and should terminate with the expiration of the trust ;
since the relation is in other respects as between debtor and
creditor.^ Valuations should be reduced to the lawful standard
of currency.^ All items are not necessarily proved by vouchers;
small charges may be allowed on the guardian's oath ; and oral
proof is frequently admissible as in the settlement of other
probate accounts. In the settlement of a guardian's account,
the disposition is to adjust items without resort to a circuity of
litigation that is practically needless.'^
§ 374. The Same Subject; Items Allowed the Guardian on
Account. — We have anticipated in former chapters the general
principles on which guardians are considered liable in the
settlement of their accounts : as for instance the payment of
1 Moorehead v. Orr, 1 S. C n. s. ^ Cunningham v. Cunningliam, 4
301. And see supra, § 314; Clark v. Gratt. 43 ; Crowell's Appeal, 2 Watts,
Tompkins, 1 S. C. n. s. 119. 295.
2 Petition of Getts, 2 Ashm. 441. « See McFarlane v. Randle.. 41 Miss.
8 Hughes V. Eingstaff, 11 Ala. 564 ; 411 ; Neilson v. Cook, 40 Ala. 498.
Lewis V. AUred, 57 Ala. 628. 7 Cutts v. Cutts, 58 N. H. 602.
* Starrett v. Jameson, 29 Me. 504.
• 559
§374
THE DOMESTIC RELATIONS.
[part IV.
interest on sums not invested, losses of money by bad invest-
ment or other fault, and culpable failure to collect debts ; also
the proper allowance for maintenance and education of infants ;
and other matters which come before our courts of probate
jurisdiction when the accounts are presented for approval. As
the guardian is allowed his costs and expenses in suits on the
ward's behalf, so he may charge bills of professional counsel
properly paid ; and this too when the charge was fairly occa-
sioned by a contest over his accounts, which he defended ; but
he cannot make the estate pay for advice and services rendered
on his own account under any colorable pretext.^ Interest has
been allowed on sums of money necessarily advanced by him
to his ward ; and this seems reasonable.^ And he is to be re-
imbursed for all reasonable and proper expenses incurred by
him in the management of his ward's estate.^ As to the guar-
1 McElhenny's Appeal, 46 Penn. St.
847 ; Alexander v. Alexander, 8 Ala.
790; Neilson v. Cook, 40 Ala. 498;
State V. Foy, 65 N. C. 26-5; Blake v.
Pegram, 101 Mass. 592 ; Voessing v.
Voessing, 4 Redf. 360 ; Moore v.
Shields, 69 N. C. 50. The rule in some
States is strict that a guardian wlio is
a counsellor cannot charge for profes-
sional services rendered by himself.
Morgan v. Hannas, 49 N. Y. 667. But
cf. Blake v. Pegram, supra.
A retiring guardian should not he
compelled to account for money wliich
his successor may collect equally well.
Mattox i\ Patterson, 60 Iowa, 4.34. A
guardian who has received money as
such cannot escape accounting there-
for by setting up that it belongs to
some one else than his wards. 80 N. C.
410. His failure to disclose that he
has received money for his ward
amounts to a conversion thereof.
Aslicr V. State, 88 Ind. 215. He can-
not avoid liability to account, if acting
as guardian, by denying that he was
appointed. 6o Miss. 32.3. And see as
to fraudulent concealment of worthless
securities, Slauter v. Favorite, 107 Ind.
291. Where one kept his accounts so
Imperfectly that it was impossible to
660
say whether he should receive certain
credits as general or special guardian,
they were credited one half to each
fund. 39 N. .J. Eq. 394.
2 Hay ward v. Ellis, 13 Pick. 272.
But see Evarts v. Nason, 11 Vt 122.
And so interest received on a small
balance may stand in lieu of compensa-
tion. Mattox V. Patterson, 60 Iowa, 434.
8 Personal services as a mechanic
or architect are ruled out strictly in
some States, the guardian being re-
stricted to his statutory commission.
Morgan v. Hannas, 49 N. Y. 667. Other
States rule differently. A guardian
who keeps a store may in good faith
supply the ward's necessaries, and
hence charging at customary rates of
profit. Moore v. Shields, 69 N. C. 50.
But this principle is a dangerous one
to admit far. The guardian of a
wealthy insane adult ward may fairly
claim compensation for luxuries sup-
plied him, and for personal visits and
care suitable to the ward's welfare.
May V. May, 109 Mass. 252. As to es-
timating necessaries purchased with
depreciated money, see 73 Ala. 406.
The guardian cannot as such sue his
ward for necessaries, having no prop-
erty of the ward in possession to reim-
CHAP. VIII.] guardian's ACCOUNTS, ETC. § 374
dian's own charges for the maintenance of wards, there can be
no question that he is neither obliged as such to maintain his
wards at his own expense, nor justified in appropriating their
earnings to himself. But as the services of children and the
cost of their board are always mutual ofifsets, the courts are
reluctant to allow charges of this sort, for or against a guardian
who brings up his ward in his own family; more especially
where the claim seems to have been made up from afterthought,
and without previous stipulation. Intention, on his part, to
maintain the ward gratuitously may be inferred from circum-
stances. In this sense we understand certain dicta of the
courts to the effect that a guardian cannot cliarge for board
where he has offered to bring up the ward at his home free
of expense ; for it is to be supposed that there is mutuality
in all contracts, and that reasonable notice might terminate
any liability which had no fixed limit.^ Like principles are
applicable to demands against the guardian for his ward's ser-
vices, which courts in different States have frequently had
occasion to consider. ^ A probate guardian, who is stepfather
to his wards, will usually be presumed to stand to them in
the place of a father, so far as liability for their support and
a right to their services are concerned ; and this rule may
apply where he occupies their house for many years.^ But
there are circumstances under which a guardian's promise to
the ward not to charge him for board would be void for want
of consideration.* This general subject we have dwelt upon
already.^
burse him for maintenance. McLane Calhoun v. Calhoun, 41 Ala. 369;
V. Curran, 133 Mass. 531. Crosby v. Crosby, 1 S. C. n. s. 337 ;
1 Manning v. Baker, 8 Md. 44 ; Armstrong v. Walkup, 12 Gratt. 608.
Armstrong v. Walkup, 9 Gratt. 372; Among tlie miscellaneous items which
Hayden v. Stone, 1 Duv. 396 ; Hendry have been allowed a guardian in his
V. Hurst, 22 Ga. 312 ; Cunningham v. acx'ounts may be mentioned that of
Pool, 9 Ala. 615. Owen v. Peebles, 42 bo)ia_fide expenses incurred in removing
Ala. 338, recognizes a guardian's claim the ward to another State. Cummins
for keeping his ward's horse, in a proper v. Cummins, 29 111. 452.
case. Equity disinclines to charge for ^ Mulhern v. McDavitt, 16 Gray,
a ward's maintenance for the benefit 404; supra, c. b.
of the guardian's general creditors. * Keith v. Miles, 39 Miss. 442.
Griffith r. Bird, 22 Gratt. 73. 5 gee § 335. A guardian who ad-
'^ Phillips V. Davis, 2 Sneed, 520 ; vances money for his ward over and
36 561
§ 375 THE DOMESTIC RELATIONS. [PART IV.
Rules of equity still prevail to a considerable extent so as
to hold guardians accountable on the usual footing of trustees.
The citation to render account in the probate court is a sum-
mary proceeding, resembling the bill in chancery for discovery.
The guardian may correct mistakes, but not dispute his ward's
rights at pleasure.^ He is presumably liable to his ward for
the nominal amount of debts due to the ward's estate which he
has failed to collect ; and if they were not, by the exercise of
good business judgment, collectible for their face, he should be
able to show this.^ He may be charged by the court with tlie
amount lost by a bad investment^ He is liable not only for
what he actually receives, but what he ought to receive.* And
where he or any other trustee claims credit, upon settling his
account, for moneys expended, losses, or charges, the onus of
proving the correctness of the credit, by vouchers or otherwise,
devolves on him.^ On the other hand, the ward's estate is
subject to all liabilities properly incurred in the course of the
guardian's judicious management of it.^
§ 375. Compensation of Guardians. — One rule has always
prevailed in England as to the compensation of executors,
guardians, and other trustees ; namely, that the services ren-
dered should be treated as honorary and gratuitous. Chancery
makes no allowance of any sort beyond a reimbursement for
the necessary expenses actually incurred. However much the
honor of being trusted may be deemed a fair equivalent for the
guardian's time, trouble, and responsibility, it is not found to
suffice for receivers and other officers of the Court of Chancery,
above the income of his estate, in order cial guardian who defends an infant's
to set him up in business, without ob- interest in the probate of a will, see
taining leave of the court, cannot 100 N. Y. 203. The guardian of a
charge his ward with it. Shaw v. lunatic may include in his account a
Coble, 63 N. C. 377. Judicial consent debt due from the lunatic to himself,
to expenditures in excess of the in- 80 Va. 58.
come may be inferred from the court's '^ Reigler v. Seigler, 7 S. C. 317.
approval of the guardian's regular ac- ^ Kimball u. Perkins, 130 Mass. 141.
counts. Cook v. Rainey, ,61 Ga. 452 * State v. Womack, 72 N C. 397 ;
(a statute case). Stothoff v. Reed, 32 N. J. Eq. 213.
1 Re Steele, 65 111. 322. Costs in a ^ Matter of Gill, 5 Thomp. & C. 237 ;
suit not connected with the guardian- Newman ?-. Reed, 50 Ala 297 ; Hutton
ship cannot be charged. 40 N. J. Eq. v. Williams, 60 Ala. 133.
181. As to compensation of a spe- ^ Owens v. Mitchell, 38 Tex. 588.
662
CHAP, viri.] guardian's accounts, etc.
§375
whose fees may in some measure tend sensilily to diminish the
ward's sense of gratitude to the custodians of his fortune. It is
found necessary to allow compensation to trustees in some of
the British colonies in order to induce suitable men to accept
office ; and even in the English courts at the present day there
is a strong inclination to multiply exceptions to the general
rule. Considerations of policy are alleged in support of the
established doctrine of chancery ; but the arguments seem not
unanswerable. In this country compensation is allowed the
guardian, while the probate court fees are usually trifling in
comparison. And it does not appear that the English rule as
to the gratuitous services of trust officers was ever adopted in a
single State.i
1 See Story, Eq. Juris. § 1268, and n. ;
and § 1268 a ; Schouler, Ex'rs, Part
VII. ; 2 Wms. Ex'rs, 1682-1685, and
cases cited. In some parts of this coun-
try custom or tlie local law has estab-
lished a commission as the guardian's
compensation. In others tlie statute al-
lows what the court may deem just and
reasonable. The commission allowed
the guardian has varied, according to
different decisions and under special
circumstances, all the way from one to
ten per cent, which last may be con-
sidered the maximum. Holcombe v.
Holcombe, 2 Beasl. 415 ; In re Har-
land's Accounts, 5 Rawle, .323 ; Walton
V. Erwin, 1 Ired. Eq. 136; Armstrong
V Walkup, 12 Gratt. 608. In New
York the rule established for trustees
is five per cent on sums not exceeding
one thousand dollars ; half that amount
upon all sums between that and five
thousand dollars ; and one per cent on
all sums exceeding that amount. Mat-
ter of Roberts, 3 .Johns. Ch. 43. And
this rule practically obtains in many
other States. One lialf the commis.'^ion
is reckoned for sums received, and one
half for sums disbursed. They are to
be computed by a guardian at the foot
of partial accounts or about the time
of actual receipt and disbursement,
and not when they are brouglit for-
ward upon his final account. Huffer's
Appeal, 2 Grant, 341 ; Vanderheyden v.
Vandcrheyden, 2 Paige, 287. Where
commissions at the court's discreti(jn
are allowed, special services performed
by the guardian may be considered in
fixing the rate of commission, but not
as an additional charge. Yet it is
justly observed in a Pennsylvania case,
that since the guardian is a trustee for
custody and management, and not, like
an executor, merely for distribution,
what is allowable to the one may not
always suffice for the other. McElhen-
ny's Appeal, 46 Penn. St. .347. Even
in New York the unfairness of an in-
flexible rule, applicable to all who hold
trust moneys, led to the assertion of
a doctrine in one case, which threat-
ened to disturb the chancery rule ;
namely, that services of a professionnl
or personal character, rendered the
ward, may be allowed to the guardian,
besides the usual commission, on the
ground that they were rendered not
as guardian but as an individual.
Morgan v. Morgan, 39 Barb. 20. But
see Morgan v. Kaunas, 49 N. Y. 667. In
Maine, Massachusetts, and other States
where the court allows what is reason-
able, the guardian may charge specific
sums for special services, instead of or
in addition to a commission, provided
the whole does not exceed a fair rate
of compensation. Longley v. Hall, 11
563
376
THE DOMESTIC EELATIONS.
[part IV.
§ 376. Suit on the Guardian's Bond for Default and Miscon-
duct. — Fur tlie default and misconduct of the guardian the
proper remedy is by suit on the probate bond. And such
suits are brought in the name of the judge, or the State, accord-
ing to the requirements of statute, for the benefit of the person
or persons injured. ^ This is the usual remedy for creditors as
well as the ward himself and his next of kin ; not, however,
the only one open to the former, as we have already seen, ac-
cording to the rule of some States.^ In most States the guar-
dian's bond cannot be sued until he has been summoned before
the proper court to account ; nor until leave of that court has
been first obtained ; except in certain cases of debts which
Pick. 120; Ratlibun v. Colton, 15 Pick.
471; Emerson, Appellant, 32 Me. 150;
Dixon V. Homer, 2 Met. 420; Roach v.
Jelks, 40 Miss. 754 ; Evarts v. Nason,
11 Vt. 122. The ordinary commission
is sometimes refused for disbursement
of the guardian's final balance to the
ward, and receipt of the original fund ;
nor is it allowable on the principal in
mere reinvestments. Commissions may
be forfeited by the guardian's miscon-
duct : as where the fund was employed
in his own business ; or where he was
removed from his trust ; but not, in
some States, for the mere omission to
account until cited in. Clerk-hire is
properly charged as an expense to the
estate in cases of magnitude and diffi-
culty, wliere such assistance is required.
Vandcrheyden i\ Vanderheyden, 2
Paige, 287 ; Knowlton ?•. Bradley, 17
N. H. 458 ; Trimble v. Dodd, 2 Tenn.
Ch. 500; Starrett v. Jameson, 29 Me.
504 ; Royston v. Royston. 29 Ga. 82 ;
Magruder r. Darnall, 6 Gill, 269 ;
Reed v. Ryburn, 23 Ark. 47 ; Neilson
V. Cook, 40 Ala. 498 ; Bond v. Lock-
wood, 38 111. 212. See § 350 as to
a collector. Commissions are prop-
erly credited at the time the money
was received. Suavely v. Harkradcr,
20 Gratt. 112. Cf. May v. May, 109
Mass. 252. A guardian who is also
trustee should not be allowed full com-
missions on both his guardian and
564
trustee accounts, where the perform-
ance of double services is merely nom-
inal. Blake v. Pegram, 101 Mass. 592.
Only on sums actually collected and
paid out should a guardian charge com-
missions. Reeds v. Timmins, 52 Tex.
84. Vouchers are not needed to sus-
tain items of this character. Newman
V. Reed, 50 Ala. 297. See 53 Vt. 460.
A guardian will not be allowed com-
pensation for taking care of the trust
fund while he himself is the borrower
of it. Farwell v. Steen, 46 Vt. 678.
And see Pierce v. Prescott, 128 Mass.
140. As to compensation for clianging
investments, repairs, &c.,it is not good
policy to allow it by way of a commis-
sion. May V. May, 109 Mass. 252.
Guardian allowed to charge special
fees for collecting a pension for his
ward. 60 Miss. 509. Commissions
not allowed on a fund of ward era-
ployed in guardian's own business,
though advantageously employed. Se-
guin's Appeal, 103 Penn. St. 139; cf.
94 N. C. 194. Compensation for main-
tenance does not deprive necessarily of
commissions. 14 Phil. 319. See, further,
4 Dern. 299. Remissness in duty is an
objection to the allowance of commis-
sions. 13 Lea, 554.
1 Davis V. Dickson, 2 Stew. 870;
Potter V. State, 23 Ind. 607 ; Pearson v.
McMillan, 37 Miss. 588.
■i Supra, §§ 387, 343, n. .
CHAP. VIII.]
guardian's bond, etc.
§377
appear of record.^ The reason is that the balances due from
the guardian and the extent of his liability cannot be properly
ascertained until the accounts are presented ; moreover, the
failure to account in obedience to judicial mandate, or to turn
over the property according to the balance shown on such
accounting, fixes the delinquency. So, too, while the guardian
may sue his ward, after the latter attains majority, when it ap-
pears that the final indebtedness is in his own favor, he must
wait until the court has ascertained and decreed its amount.^
§ 377. The Same Subject; Remedies against and on behalf of
Sureties. — As to sureties, it is said that they may be sued
without a previous suit against the principal ; the common-law
rule, that an executor must first be found guilty of devastavit,
being held inapplicable to guardians.^ To all suits on guar-
1 Stillwell V. Miles, 19 Johns. 304 ;
Bailey v. Rogers, 1 Greenl. 186 ; 78
Me. 24 ; Salisbury v. Van Hoesen, 3
Hill, 77 ; 21 Neb. 534 ; Jarrett v. State,
5 Gill & Johns. 27; Hunt v. White, 1
Cart. 105 ; Foteaux v. Lepage, 6 Iowa,
123 ; Ammons v. People, 11 111. 6 ;
Pratt V. McJunkin, 4 Rich. 5 ; Justices
V. Willis, 3 Yerg. 461 ; O'Brien v.
Strang, 42 Iowa, 643; Allen v. Tiffany,
53 Cal. 16; Hailey v. Boyd, 64 Ala.
399 ; Ordinary v. Heishon, 42 N. J. L.
15. But a guardian cannot prevent
an action on his bond by failure to
account. Wann v. People, 57 111. 202.
As for chancery bill of account, in case
of quasi guardianship, see next c. As
to abatement of summary proceedings
to account by the guardian's death, see
Harvey v- Harvey, 87 III. -54.
2 Smith r. Philbrick, 2 N. H. .395;
Shollenberger's Appeal, 21 Penn. St.
337. In certain peculiar instances,
where the extent of the guardian's lia-
bility has been otherwise as definitely
determined as it could be by an ac-
counting, it is held that a decree may
be entered against the guardian for the
amount, though no account has been
taken. Sage v. Hammonds, 27 Gratt.
651 ; and even that an accounting is
not a prerequisite to an action against
the sureties. Girvin v. Hickman, 21
Hun, 316. See 55 Iowa, 110. For the
Illinois rule, see 103 III. 142. But an
accounting is usually a prerequisite to
suit on the bond. In an action on a
guardian's bond the writ should be in-
dorsed with the name of the person for
whose benefit suit is brought. 14 R. I.
291.
^ State V. Strange, 1 Smith (Ind.),
367 ; Call r. Ruffin, 1 Call, 333; 1 Met.
(Ky.) 22. And see Horton v. Horton^
4 Ired. Eq. 54 ; Moore v. Baker, 39 Ala.
704 ; Moore v. Hood, 9 Rich. Eq. 311 ;
Potter V. Hiscox, 30 Conn. 508 ; Clark
V. Montgomery, 23 Barb. 464. In a
suit by the ward against his guardian
and the sureties on the bond, a decree
may be rendered at once against all ;
the ward need not pursue the guardian
first. Barnes v. Trafton, 80 Va. 524.
The personal representative of a de-
ceased insolvent guardian is not a
necessary party to the ward's suit in
equity against a surety. 77 Ala. 496.
As to demand, see 106 Ind 251 ; 87
Ind. 102. But there should usually be
a judgment against the guardian be-
fore money can be made out of the
sureties. 71 Ga. 49 ; cf. AVolfe v. State,
59 Miss. 338.
565
377
THE DOMESTIC DELATIONS.
[PAKT IV.
dians' bonds there is a limitation prescribed by law. Thus in
Massachusetts the period is four years from the time the
guardianship terminates, whether by death, removal, or resig-
nation of the guardian, or the arrival of the infant ward at full
age ; and the same rule applies to general and special bonds.^
In some other States the period is five years.^ In Indiana it
is three years.^ Where no special period is fixed by law, the
ordinary limitation to suits on sealed instruments must be
held to apply.^ .
Sureties, as well as the guardian, are concluded, in the absence
of fraud or palpable error, by the amount deliberately adjudged
due from the guardian on settlement of his accounts, usually
in a probate court.^ They cannot become parties to the ac-
counting of their principal, either in the original proceedings or
on revision.^ Where sureties are compelled to respond in dam-
1 Loring v. Alline, 9 Cush. 68. And
see Favorite v. Boolier, 17 Ohio St. 548.
2 Joiiiison V. Chandler, 15 B. Monr.
584.
3 State V. Hughes, 15 Ind. 104.
4 Kagland v. Justices, 10 Ga. 65 ;
Woodbury v. Hammond, 54 Me. 332.
It runs from the day tlie ward becomes
of age. State v. Henderson, 54 Md.
332. And see 61 Iowa, 605. The limi-
tation begins to run from the time
wlien the guardian settles his account
and is ordered to pay over, not from
the date of his informal accounting to
the ward, the statute designating the
time of a guardian's " discharge." Or-
leans Probate Court v. Child, 51 Vt.
82. Cf. Motes v. Madden, 14 S. C.
488.
& Commonwealth v. Rhoads, 37
Penn. St 60 ; Braiden v Mercer, 44
Ohio St. 339 ; McCleary v. Menke,
109 111. 294 ; .39 Ark. 145. In numer-
ous late instances, however, a decree
rendered against a guardian Is held not
conclusive against sureties who were
not parties to the final accounting.
So that the latter may show, in reduc-
tion of their liability, that the guar-
dian failed to charge the wards with
boarding, tuition, or his own compen-
566
sation, or made improper charges in
their favor against himself. Daven-
port r. Olmstead, 48 Conn. 67 ; State
V. Hull, 53 Miss. 626; Kinsey r. State,
71 Ind. 32; 81 Ind 62; 76 Va. 731 ;
State /'. Hosier, 61 Mo. 544; Sanders
V. Forgasson, 3 Baxt. 249. And see 96
N. C. 34. So may the sureties have
the benefit of a debt lawfully charge-
able in account with the wjfrd, wliich
the creditor releases bona Jide to tiie
guardian personally. Kinsey v. State,
71 Ind. 32.
Special penalties may be assessed
under some local statutes, on a default-
ing guardian's bond. Stroup v. State,
70 Ind. 495; 106 Ind. 251. Sureties
cannot set up their principal's misap-
propriation with the ward's conni-
vance while under age. Judge of Pro-
bate V. Cook, 57 N. H. 450. See also
Scobey v. Gano, 35 Ohio St. 550 ; 100
111. 366.
6 In re Scott's Account, 36 Vt. 297.
But see Curtis v. Bailey, 1 Pick 198.
In an action on a guardian's bond his
accounting and discharge in court can-
not be attacked. State r. Slauter,
80 Ind. 597. Sureties cannot set up
issues as to the guardian's account
in which they have no interest. 19
CHAP. VIII.] guardian's BOND, ETC. § 377
ages for the default of their guardian, they may seek indemnity
from his property ; they are entitled to be subrogated to the
remedies of the ward against their principal, subject, however,
to equities against the ward.^ Equity also allows them to en-
force contribution as among themselves. Thus, if co-sureties
on one bond pay the whole amount of a deficiency, they may
use the other bond to obtain a proportional reimbursement.^
So where there are three co-sureties, and one proves insolvent,
the surety who has responded in damages to the full extent
may compel his solvent co-surety to pay him one-half of the
amount.^ A surety may always take security from his prin-
cipal for his own indemnity, and, if default occurs, reimburse
himself from the principal's own property like any other cred-
itor. But it stands to reason that the surety of a guardian
cannot secure himself by any pledge of the wards property ;
for this would be permitting fraud in order to prevent fraud,
and the infant's pretended security would be to him no security
at all* In a suit against sureties on a guardianship bond, if
one of the sureties is dead, his personal representatives should
be joined.^
Fla. 373. And as to the guardian's public policy for the guardian to de-
neglect to settle accounts, see 59 N. H. posit part of the ward's securities with
647. the surety as indemnity. Rogers v.
1 Adams v. Gleaves, 10 Lea, 367. Hopkins, 70 Ga. 454.
And see as to proceedings against the ^ Lynch v. Rotan, 39 111. 14. A re-
lands of a deceased guardian, Rich- lease of a surety by payment of an
ardson v. Day, '20 S. C. 412. amount less than the principal owed is
2 Commonwealth v. Cox, 36 Penn. not a full discharge of the principal.
St. 442. See Baugh v. Boles, 35 Ind. Carroll v. Corbitt, 57 Ala. 579.
524. As to suits on a guardian's bond, on
2 Waller v. Campbell, 25 Ala. 544. the relation of one or more wards
See State v. Paul's Ex'r, 21 Mo. 51 ; where there are other wards, see Col-
Jamison V. Crosby, 11 Humph. 273; burn v. State, 47 Ind. 310; Scheel v.
Hocker v. Woods, 33 Penn. St. 466 ; Eidman, 68 111. 193. The bond of a
Haygood v. McKoon, 49 Mo. 77. guardian of several infants may be
* Poultney v. Randall, 9 Bosw. 232; sued on for those surviving, where any
Foster v. Bisland, 23 Miss. 296 ; Miller are dead. Winslow v. People, 117 111.
V. Carnall, 22 Ark. 274; Howell v. 152.
Cobb, 2 Cold. 104. It is not against
567
379 THE DOMESTIC RELATIONS. [PAET IV.
CHAPTER IX.
RIGHTS AND LIABILITIES OF THE WARD.
§ 378. General Rights of the Ward. — Having treated at
length of the rights and liabilities of guardians, their appoint-
ment and removal, and the settlement of their accounts, it only
remains for us to consider the powers and duties of the ward
himself. Some of these have been already noticed incidentally ;
others, so far as minor wards are concerned, fall within the
general scope of Infancy ; but a few legal principles remain for
discussion under the present head, to which we shall now direct
the reader's attention.
§ 379. Doctrine of Election as to Wards, Insane or Infant. —
There is a distinction to be drawn between infant wards, and
insane persons or spendthrifts under guardianship. As to the
former, the law recognizes a growing responsibility, as it were,
on their part ; a postponement of many rights and duties to
the period of maturity, but not utter and total suspension or
loss. Hence sales made and contracts performed while an
infant ward's disabilities last are frequently held subjected to
his future approval, being treated as neither absolute nor yet
void in the mean time. Hence is that principle of election so
constantly asserted at law on his behalf ; hence, too, the right
he exercises, when of age, of passing in review accounts old and
almost forgotten, to ascertain the balance justly due him. But
as to insane persons and spendthrifts, their responsibilities are
for the time blotted out ; the disability may be temporary or it
may be permanent ; but while it lasts, it is complete ; and it
may be essential that transactions on their behalf should stand
or fall, irrespective of their choice, and beyond the possibility of
their future interference. This suggestion we throw out simply
by way of caution ; for while the same principles are constantly
568
CHAP. IX.] EIGHTS AND LIABILITIES OF THE WARD. § 380
applied by inference to all wards alike, it is unsafe to draw
bruad conclusions or argue with confidence from mere analogies
between these different classes of wards.-^
§ 380. Same Subject ; Insane Persons and Infants Contrasted.
— Thus it is asked whether an insane person under guardian-
ship can make a will, if in fact compos mentis. Clearly, ques-
tions of mental capacity and undue influence may arise whenever
a will is presented for probate. And prima facie an insane
person, if not a spendthrift, under guardianship, is non comp)os
mentis, and his testamentary capacity may well be doubted. It
is settled, however, in various States that a valid will may be
executed by a person under such guardianship, notwithstanding
the circumstances of his situation ; the fact of testamentary
capacity at the date of execution being open to proof.^ As to
the contract of a spendthrift or insane person made before he
was placed under guardianship, the law favors the guardian's
right of disaffirmance to a certain extent, notwithstanding the
ward was an adult when the contract was made ; on the
ground, apparently, that the person now a ward was not fit to
make a contract in his own right which should bind his estate.^
1 Thus, in Vermont, it is held tliat mortgagee, where the mortgage was
a spendthrift may be compelled to give made by one apparently sane and not
security to the town of his settlement declared insane, 81 Ind. 433. Also, as
against loss by his becoming charge- to an insane person's note, taken by
able afterwards as a pauper, as a con- one without notice of his insanity,
ditionfor his release from guardianship. Shoulters y. Allen, 51 Mich. 529. Cf.
Williston I'. White, 11 Vt. 40. Edwards v. Davenport, 20 Fed. R.
2 Breed v. Pratt, 18 Pick. 115. The 756, where one was plainly incapable,
letters of guardianship afford prima An insane person's deed of real estate
facie proof of testamentary capacity, is treated with great disfavor. Rogers
but nothing conclusive, save perhaps v. Blackwell, 49 Mich. 192. The guar-
whcre one is adjudged an idiot. Scliou- dian may maintain a bill in equity for
ler, Wills, §§ 81, 82. a reconveyance. Warfield v. Fisk,
3 Coombs 11. Janvier, 2 Vroom, 240; 136 Mass. 219. The legal disability of
Chandler v. Simmons, 97 Mass. 508. spendthrifts (and semb/e of tiie insane
But see, as to the wife's agency to under local statute) begins when the
manage his business, Motley v. Head, guardian is appointed and gives bond.
43 Vt 633. The contract of a person Blake v. Potter, 51 Conn. 78. An in-
not under guardianship but of unsound sane person under guardianship usu-
mind is not necessarily void, but will ally continues liable to suit and the
be held voidable or not, according to personal service of summons. Inger-
circumstances. Copenrath v. Kienby, soil v. Harrison, 48 Mich. 234, and
83 Ind. 18. And see, as to vesting chat- cases cited. In a suit against his guar-
tel mortgage rights in the innocent dian on a contract made by the ward
5t)9
§ 381 THE DOMESTIC RELATIONS. [PART IV.
And yet the rule here must differ greatly from that applicable
to infants.
§ 381. Responsibility of Guardian to "Ward as Wrongdoer, &c.
— For assault and battery, a ward, like all other persons, is en-
titled to damages. But where his guardian is the offender,
there are technical difficulties in the way of maintaining a suit.
Many authorities allow an infant to sue his guardian by next
friend ; though a spendthrift, it is said, cannot do so. His
remedy may be found in getting the guardian removed for mis-
conduct and securing the appointment of a successor, or per-
haps obtaining his discharge from guardianship altogether. An
action can then be brought by himself or the new guardian,
as the case may be. The guardian may in all cases be held
criminally responsible for the injury committed.^
A guardian may be restrained by injunction from committing
waste. So he is responsible for damages thus occasioned ; and
it has been held that a judgment against sureties on the guar-
dian's bond for waste committed by the guardian will not before
satisfaction bar a suit by the ward against one who participated
in the waste.^ The ward may also sue for use and occupation,
although he has a general guardian.^ Where one assumes to be
guardian or agent of a guardian, and enters an infant's lands,
the latter may elect to treat him as a wrongdoer, and bring
trespass, or charge him as a guardian.* So where a guardian
wrongfully holds over. But the ward cannot sue his guardian
for money had and received. His proper course, at least in this
before he was declared insane, the neg- Mo. 215. A guardian has been held
ligcnce of the guardian in defending is liable in damages for corrupting the
imputable to the ward. Weems i'. virtue of his ward. Brittain v. Can-
Weems, 73 Ala. 462. When a lunatic nady, 96 Ind. 266.
is supported at an asylum, a vaHd per- "^ Powell v. Jones, 1 Ired. Eq. 337.
sonal debt is created, and proceedings See Bank of Virginia v. Craig, 6 Leigh,
may be taken to mortgage his estate to 399.
secure payment thereof. Agricultural ^ Porter v. Bleiler, 17 Barb. 149.
Ins. Co. ''. Barnard, 96 N Y. 525. See Senseman's Appeal, 21 Penn. St.
A person thus under guardianship 331 ; Sawyer v. Knowles, 33 Me. 208.
may with the guardian's assent estab- And see ("hilton v. Cahiness, 14 Ala.
lish a domicile sufficient for probate of 447 ; 103 Ind. 257 (statute).
his will. Culver's Appeal, 48 Conn. •* Sherman v. Ballou, 8 Cow. 304;
1^5. Blomfield v. Eyre, 8 Beav. 250.
1 Mason v. Mason, 19 Pick. 506 ; 76
570
CHAP. IX.] KIGHTS AND LIABILITIES OF THE WARD. § 382
country, is to institute proceedings for the latter's removal, and
then to sue on the official bond.^ For a tort committed by the
ward, the guardian is not usually liable ; at least not directly.^
§ 382. Ward's Action or Bill for Account ; Limitations, &c.
— Whenever guardianship has been terminated, an action of
account lies in favor of the ward. And this action is brought
by the new guardian, or by next friend ; or by the ward himself,
if the period of his legal disability has expired. While his
guardianship continues, chancery permits the ward by next
friend to file his bill against the guardian for account. All
this seems to apply rather to chancery than probate guardians;
since direct proceedings for account in the court which issued
letters of guardianship, followed by removal of the guardian,
if unfaithful, and suit on his probate bond, afford the infant
under such guardianship an ample and expeditious remedy.
But for chancery guardians, purely testamentary guardians, and
quasi guardians, and under peculiar circumstances, the more
expensive and complicated process of a bill in equity becomes
the necessary resort. And this in England is still the usual
course of procedure, while in most parts of the United States
it has gradually gone out of use or has been superseded
altogether.^ But in some cases of quasi guardianship in this
country, — the probate court having no jurisdiction at all in
the premises, — a quasi ward on reaching full age has been
allowed to sue in assumpsit for money in the quasi guardian's
hands ; for here, as it would appear, the old action of account
was always proper.*
The ward's right to call his guardian to account may be
barred by limitation, computed from the time he becomes com-
petent to act. In Pennsylvania it is said that the same prin-
ciple applies as in other legal proceedings ; and eighteen years'
1 Brooks V. Brooks, 11 Cush. 18. The sureties under a void probate ad-
2 Garrigus v. Ellis, 95 Ind. 598. pointinent may thus be held responsi-
8 Monell V. Monell, 5 Jolins. Ch. ble together with the principal. Cor-
283; Linton r. Walker, 8 Fla. 144; bitt v. Carroll, 50 Ala. 315. As to
Swan V. Dent, 2 Md. Ch. Ill ; Lemon appointing a receiver on the ward's bill
V. Hansbarger, 6 Gratt. 301 ; Manning for account, see Sage v. Hammonds, 27
V. Manning, 61 Ga. 137 ; Macphers. Inf. Gratt. 651.
259, 818 ; Fanning c Chadwick, 3 Pick. * Pickering v. De Rochemont. 45 N.
424 ; Jones v. Beverly, 45 Ala. IGl. H. 67 ; Field v. Torrey, 7 Vt. 372.
571
§ 383 THE DOMESTIC RELATIONS. [PART IV.
delay after the ward attains majority has been held fatal to a
suit.i But in Illinois the rule is differently stated, and the
guardian's liability to account is there considered to last as long
as the bond continues in force ; the citation to account before
the probate court being merely a means to ascertain delinquency
as the foundation of a suit, and not of itself a suit at law or in
equity. 2 The former may be regarded as the true doctrine for
chancery guardianship ; the latter for probate guardianship.
The guardian's administrator in either case should close up the
trust accounts, if not already settled, before he makes distribu-
tion ; since he may otherwise remain liable for many years.^
But in most States the general subject of limitation in all trusts
is expressly regulated by statute.
Short delays by the ward, after coming of age, to require
accounts and institute a suit on the bond, are not to be con-
strued to the prejudice of his rights against either guardian or
sureties.* But one who has been under guardianship is charge-
able with constructive notice of the probate papers on file, and
proceedings in the court relative thereto, and should prosecute
his rights seasonably.^ And special circumstances, such as a
final settlement with the ward in connection with lapse of time,
make the barrier stronger.^
§ 383. Ward's Right to recover Embezzled Property, &c. —
Courts of chancery will always aid the ward in recovering prop-
erty embezzled, concealed, or conveyed away in fraud of his
rights. The proper mode of procedure is by bill in equity.
And while a probate guardian suspected of fraud should be
cited to account, it has been held that his estate being insolvent
1 Bones' Appeal, 27 Peiin. St. 402. count, or obtain a judgment on the
See Magruder y. Goodwyn,P. & H. 561 ; bond, before proving a elaini against
Adams v. Riviere, 59 Ga. 793. the estate of his insolvent guardian.
'^ Gilbert v. Guptill, 34 111. 112. And 144 Mass. 195. No action by the ward
see last chapter. lies at law for moneys in the guardian's
3 Musser r. Oliver, 21 Penn. St. .362. hands until his accounts have been set-
See Felton r. Long, 8 Ired. Eq. 224 ; tied in court. 62 Wis. 248. And see
Mitchell c. Williams, 27 Mo. 399; Pear- 65 Cal. 429. But where settlement is
son 1-. McMillan, 37 Miss. 588. delayed suit lies on the guardian's
* Pfeiffer v. Knapp, 17 Fla. 144. bond in a fit case before his final set-
5 Robert v. Morrin, 27 Mich. "06. tlement. 82 Mo. 57.
The ward reaching age should eitiicr '^ Railsback v. Williamson, 88 IlL
compel the guardian to settle his ac- 494.
672
CHAP. IX.] RIGHTS AND LIABILITIES OF THE WARD. § 384
and his sureties irresponsible, it is not necessary for the ward
to sue them before he can file a bill to recover such property as
he can trace. ^ A summary process in the nature of an inqui-
sition is provided by statute in some States, for ascertaining the
whereabouts of stolen and missing property belonging to wards,
by means of which all suspected persons, including the guardian
himself, can be summoned before the probate court to answer
lawful inquiries under oath.^
§ 384. Fraudulent Transactions set aside on "Ward's Behalf. —
Fraudulent transactions cannot stand as against the ward. And
in cases of this sort, equity will go to the substance rather than
the form, in order to ascertain the real motives of one who pro-
fesses to turn over trust property to third parties, and will do
equity if possible. Where a guardian, for instance, transfers a
note with words importing trust to his private creditors as secu-
rity for his own debt, the ward can follow it into their hands,
or against other parties, and stop payment, whether sufficient
consideration was paid by the holder or not.^ But in all cases
of this sort, third parties should have some notice, actual or
constructive, of the existence of a trust ; otherwise they cannot
be made to suffer loss further than the usual rules of stolen
property apply.* Eights of wards to real estate are frequently
protected on these principles. Thus, where a mother interested
in certain lands with her children obtained partition after being
appointed their guardian, bought in the premises, and, without
paying the full purchase-money, gave a mortgage, taking an
assignment to herself as guardian, the claim of the mortgagee
with notice was postponed to the children's share.^ So, where
a cjuardian who held a mortgage in his own right agreed with
the mortgagor to substitute the ward's money for his own, let-
ting the securities remain as before, this was held to be an
equitable investment of the ward's money, and good against any
subsequent disposition which the guardian might make, while
in failing circumstances, to secure his own creditor.^ The guar-
1 Hill V. Mclntire, 39 N. H. 410. 5 Messervey v. Barelli, 2 Hill Ch.
2 Sherman v. Brewer, 11 Gray, 210. 567.
3 Lockhart v. Phillips, 1 Ired. Eq. 6 Evertsonz?. Evertson, 5Paige, 644.
342; Lemley v. Atwood, 65 N. C. 46. In tliis case the creditor had not even
* Hill V. Johnston, 3 Ired. Eq. 432. notice of the ward's rights. And see
573
§ 385 THE DOMESTIC RELATIONS. [PART lY.
dian's collusion with third parties to defeat any equity of the
ward in land cannot prevail against the ward who seeks in sea-
son to set the conveyance aside.^ And in any strong case of an
illegal sale of the ward's property contrary to statute, and the
conversion of the proceeds to the guardian's own use, a ward has
not only his remedy upon the guardian's bond, but can repudiate
the sale and recover his property.^
But fraud is a question of evidence. And the payment of a
debt to a guardian before it is due is not sufficient in itself to
establish an unfair purpose. Hence it was decided in a North
Carolina case, that where one owing a bond to a guardian in
failing circumstances, the bond being in behalf of the ward, and
not yet due, held also a note against the guardian himself, which
he gave to an attorney to collect, with explicit instructions not
to make an exchange, but to collect the note given him, and
with the proceeds to take up the bond due the guardian, and
such attorney received a bank check from the guardian, and be-
lieving the money to be in bank, and that the check was as good
as money, returned the note to the guardian, and took up the
bond in his hands, these acts having been performed in good
faith, the ward could not pursue his former debtor.^
§ 385. Ward's General Right to repudiate Guardian's Trans-
actions; his Right of Election. — We have seen that the trans-
actions of a guardian on behalf of his infant ward are valid, if
within the scope of his general powers, or authorized by the
courts of equity ; sustainable, though neither within the scope
of his powers, nor previously authorized, if the court afterwards
deems them prudent or beneficial to the ward ; in other cases,
subject to the ward's own disaffirmance on reaching majority.
Herein consists the infant's right of election. Few acts of the
guardian can be pronounced valid, except in the sense that they
are authorized, either generally or specially, by the court which
exercises supervision ; and few of his transactions can be so
Gannaway v. Tapley, 1 Cultl. 572; ^ "Wynne v. Benbury, 4 Jones Eq.
liobinson v. liobinson, 22 Iowa, 427. "95. Anil see, as to fraud generally,
1 Bcazley i\ Harris, 1 Bush, 5-33. Story, F.q. Juris. §§ 317-020 ; Harrison
See McFarland v. Conlee, 41 lil. 455. v. Bradley, 5 Ired, Eq. LOG; Dawson v.
2 State w. Murray, 24 Md. 310. See Masscy, 1 Ball & B. 329; Henry v.
infra, § 386. Pennington, 11 B. Monr. 55.
574
CHAP. IX.] RIGHTS AND LIABILITIES OF THE WAED. § 385
utterly without autliority as to be absolutely void ikt se. The
general rule of election recognizes, then, two principles : first,
the privilege of the infant ward, on attaining full age to avoid
his guardian's transaction ; second, the right of courts of equity
to control this privilege by interposing to pronounce the trans-
action good. The whole doctrine, therefore, seems in strict ac-
cordance with that more general rule, that the accounts of the
guardian are open to the inspection of the ward at majority,
and may be disputed down to the smallest item. And where,
as in the case of probate guardians, settlements out of court
do not dispense with final returns for preservation and public
record, the tendency of the decisions must be in favor of bring-
ing the question of affirmance or disaffirmance of the guardian's
transaction before the court, instead of leaving it to acts of the
late ward in pais. These principles suffice for general applica-
'tion to compromises, submissions to arbitration, investments
and reinvestments of personal property, and similar transactions,
undertaken by the guardian on the strength of a previous order
of court, or at the risk of its subsequent approval.^ Yet stat-
utes sometimes interpose to render such transactions absolutely
perfect on permission of the court. And where the guardian's
position in a transaction is that of trustee of an express trust,
the transaction will conclude the ward.^
But as to transactions which involve the purchase or sale of
real estate on the infant ward's behalf, the rule is very strict,
as we have already seen. The ward is not bound even by his
guardian's exchange of his lands by way of equivalent^ A
defective sale of real estate under the statute may in some
^States be set aside on a bill in equity filed by the infant
against the guardian and the purchasers.* And where the
guardian contracts to buy real estate for the ward's benefit,
the ward, on reaching majority, may either complete the con-
1 Barnaby v. Barnaby, 1 Pick. 221. 7. As to adjustment of rents and im-
See supra, cs. 6, 8. provements in such cases, see Anderson
2 Loelir t\ Colborn, 92Ind. 24. v. Layton, 3 Bush, 87; Holbrook v.
3 Morgan v. .Johnson, 68 111. 190. Brooks. 33 Conn. 347 ; Summers v.
* 2 Kent, Com. 280 ; Eckford v De Howard, 33 Ark. 490. And see Tatura
Kay, 8 Paige, 89 ; Westbrook v. Com- ;•. Holliday, 59 Mo. 422.
stock, Walker Ch. 314. See supra, c.
575
§ 386 THE DOMESTIC RELATIONS. [PART IV.
tract or reject it, and look to the guardian for payment.^ But
he cannot, in absence of fraud, compel the vendor to refund the
money paid down as a bonus.'-^ Nor can he, having once re-
nounced, seek to be relieved against such renunciation.^ The
right of election goes to the ward's personal representatives if
he dies under age.* And it would appear to be a general prin-
ciple that where the ward, after arriving of age, with full
knowledge of all the facts and in the absence of fraud, receives
and retains the purchase-money arising from the guardian's
sale of his land, he cannot question the validity of the sale
afterwards.^ In other words, the ward may choose whether
to repudiate the sale and recover the land, or ratify it and claim
the purchase-money. Without some proper judicial sanction, at
least, a guardian cannot divest liis ward of rights in real estate
against the ward's power to assent or dissent, when suijuris.^
A resulting trust to the ward may be established, on his*
election, in lands which the guardian has taken in his own or
another's name, but upon consideration out of the ward's estate.'^
And a guardian may for convenience have taken real estate or
even mortgage notes or other securities in his own name, and
yet by his dealings show a plain intent to hold it in trust for
his ward, subject to expenses incurred in its management and
accounting for its income and proceeds, and giving the ward the
right to claim title by proceedings in equity or otherwise.^
§ 386. Same Subject ; Resulting Trusts ; Guardian's Misuse
of Funds ; Purchase of Ward's Property, &c. — All advantageous
bargains which a guardian makes with the ward's funds are
1 Loyd V. Malone,23 III. 43; Hopk. ner v. Carver, 12Heisk. 436. See post,
337 ; 88 N. C. 138. Part V. c. 5, as to disafRrmance by
2 Yerger v. Jones, 16 How .30. infant without restitution. See Bevis
3 Floyd V. Johnston, 2 Lift. 109. v. Heflin, 63 Ind. 129.
* Sinsjleton v. Love, 1 Head, 357; ^ Rainey v. Chambers, 56 Tex. 17.
J)ean v. Feeley, 66 Ga. 273. Whether And see, as to setting aside a void de-
tlie riglit of election applies where the cree of sale, 100 111. 356 ; 79 Ind. 188.
guardian took land in discharge of a '' Hamnett's Appeal, 72 Penn. St.
predecessor's indebtedness, see Beam 337 ; PfeifEer v. Knapp, 17 Fla. 144 ;
I'. Froneberger, 75 N. C. 540 ; Clayton Summers i;. Howard, 33 Ark. 490 ;
r. McKinnon, 54 Tex. 206. Sterling v. Arnold, 54 Ga. 690; White-
5 Deford v. Mercer, 24 Iowa, 118; head v. Jones, 56 Ala. 1-52.
I'armele v. McGinty, 52 Miss. 476 ; 8 Fogler v. Buck, 66 Me. 205.
Shorter v. Frazer, 64 Ala. 74 ; O'Con-
576
CHAP. IX.] RIGHTS AND LIABILITIES OF THE "WARD. § 386
also considered subject to the ward's election, either to repu-
diate or to uphold the contract and take the profits. This
applies, in general, to improper acts ; as where the guardian
speculates with the trust funds, or invests them in his own
business, or, in a word, converts them to his own use. The
ward may either take the investment as he finds it, with all the
profits, or demand the original fund, with interest ; though he
cannot avoid a transaction in part and ratify in part.^ And
where the ward has declined to elect whether he will take
interest or the profits derived by his guardian from an invest-
ment which he was not authorized to make (as in the guardian's
business) the court may make the election for the ward.^ And
so as to electing to take land which has enhanced in value since
the guardian took title to himself.^ For it is right that the
ward should enjoy all the advantages which have accrued from
the use of his own money ; and it is also right that the guar-
dian should not derive gain from the ward's loss. The old rule
of chancery in this respect has been gradually relaxed ; so that
many acts of a trustee, which might once have been considered
fraudulent and void, are now deemed voidable only.^
Thus it is that the rule may now be considered well settled,
that the guardian who buys at the sale of his ward's lands or
other property is secure in his purchase, and retains all the
benefits arising therefrom, unless the ward chooses to set it
aside and claims to be reinstated in his own possession. This
rule is laid down, however, with great caution in the courts;^
and it is frequently said that the transaction is treated all the
same, whether tlie guardian bought the property outright or
there was a colorable purchase by means of third parties ; more-
over, that such sales, in order to stand at all, must have been
1 2 Kent, Com. 230; Docker v. After repudiation of the transaction,
Somes, 2 M. & K. 664 ; Kyle i'. Bar- the ward cannot ask to liave the deed
nett, 17 Ala. 306; Singleton v. Love, 1 reformed. 53 Mich. 320.
Head, 3-37 ; White ;•. Parker, 8 Barb. 2 Seguin's Appeal, 103 Penn. St. 139.
48; Jones v. Beverly, 45 Ala. 161; a See Tealie v. Hoyte, 3 Tenn. Ch.
supra, §§ 3-32-354. A female ward 651.
living with her father on land mort- * See Hill on Trustees, 159, 536;
gaged by him to her guardian does Cassedy v. Casey, 58 Iowa, 326.
not necessarily ratify the guardian's ^ See 61 Miss. 766, as to a joint
loan on the mortgage. 117 111. 152 purchase.
37 577
§ 386 THE DOMESTIC RELATIONS. [PART IV.
conducted fairly and in good faith.^ Where the circumstances
show fraud and coUusion, courts of equity hesitate little in
setting the transaction aside.^ And a material question for
consideration in such sales is whether a fair price was paid for
the property. Parties affected with notice of the circumstances
cannot complain if their title to real estate becomes thereby
impaired ; but it is hard that purchasers without notice should
suffer. On this latter principle, and for the security of title,
rests a decision in Massachusetts, to the effect that the guar-
dian's purchase of his ward's real estate is voidable by the ward
only as against the guardian, or a purchaser claiming under
him with knowledge of the circumstances; and not as against
a subsequent grantee or mortgagee without notice.^ In general,
if with the ward's funds the guardian purchases land and takes
title to himself, a subsequent purchaser's rights should depend
upon good faith and the question whether he had due notice of
the ward's title.* The fact that on final settlement a decree is
rendered against the guardian and his sureties for such funds,
does not estop the ward from enforcing his resulting trust in
the land.^ And a guardian's sale of his own property to the
ward may be disavowed by the latter on coming of age.^
If the ward does not ratify an unauthorized investment,
i\neither purity of intention nor diligence and good faith in
llpndeavoring to prevent loss thereby will absolve the guardian
from liability therefor.'' But, in general, the guardian may dis-
1 2 Kent, Com. 230 ; Scott v. Free- * Title running to the guardian as
land, 7 S. & M. 409 ; Doe v. Hassell, 68 " trustee " should put such third party
N. C. 213 ; Elrod v. Lancaster, 2 Head, upon guard. Morrison v. Kinstra, 55
571 ; Patton i\ Thompson, 2 Jones Eq. Miss. 71. And see Armitage v. Snovv-
285; Chorpenning's Appeal, 32 Penn. den, 41 Md. 119; Bevis v. Heflin, 63
St. 315; 16 Lea, 732. And see supra, Md. 129; White v. Izelin, 26 Minn,
cs. 6, 7. 487 ; Webster v. Bebinger, 70 Ind. 9.
2 Hayward v. Ellis, 13 Pick. 272. For a case where A. bouglit land, his
8 Wyman v. Hooper, 2 Gray, 141. grantor retaining a lien for the pur-
As to the Englisli doctrine, see Morse chase-money, and then used the ward's
V. Royal, 12 Ves. 372 ; Gary v. Cary, 2 money to pay for the land, see 83 Ind.
Sch. & Lef. 173; Naylor v. Wincli, 1 266.
Sim. & Stu. 567. Here that constructive ^ Robinson v. Pebworth, 71 Ala.
notice which the public records furnish 240.
is probably to be deemed unavailing on ^ Hendee v. Cleaveland, 54 Vt. 142.
the ward's behalf. And see 55 Mich. "^ May v. Duke, 61 Ala. 53.
482.
578
CHAP. IX.] RIGHTS AND LIABILITIES OF THE WARD. § 386
charge himself by turning over what securities and property he
has taken in good faith and in the rightful exercise of his trust,
if it remains as the result of prudent management of the estate
on his part, whether valuable or worthless at the time of final
settlement; his liability extending to property of the ward
which has come to his actual or potential control ; and securi-
ties being turned over at their just valuation, like specific cor-
poreal chattels.^ But a settlement with the ward by turning
over what the guardian knows to be bad securities improperly
taken should not be countenanced. ^
A guardian ought not to hold, as property of his ward, notes
or securities which on their face evidence a debt due to the
guardian or his predecessor in his individual right, unidentified
as the ward's property.^ But in equity the ward may follow
not only money belonging to him which has been invested in
land by his guardian, but any specific chattel purchased with
his funds, into which his funds can be clearly traced, even
though the guardian took title to himself. If, however, the
ward elects to take the money, such property vests absolutely
in the guardian, and those standing upon the guardian's title.*
And unless the fund can be traced into some specific thing or
be clearly identified, the ward, of course, cannot assert his right
therein ; ^ and the usual rules apply as to bona fide third parties
who may have meantime acquired title. We may finally observe
that a ward who repudiates a transaction to the disadvantage
1 Supra, c. 6 ; State v. Foy, 71 N. C. self in his own name, is not in law a
527; Goodson v. Goodson, 6 Ired. Eq. conversion, though tending perhaps to
238. Guardian held liable for careless- show a conversion. Richardson v.
ness in procuring the issue of an erro- State, 55 Ind. 381, doubted in State v.
neous decree of distribution to the Greensdale, supra. See § 385.
ward's injury. Pierce v. Prescott, 128 * Chanslor v. Chanslor, 11 Bush,
Mass. 140. 663. As to recovering the thing from
'^ Burwell v. Burwell, 78 Va. 574. third parties after an unproductive suit
It is a fraud upon the ward for a on the guardian's bond, see Branuli v.
guardian to turn over to his successor De Bose, 55 Ga. 21. For the guardian
the latter's note to him instead of to take a surrender of his own note in
funds of the estate. State v. Leslie, paj'ment of the price of his ward's
83 Mo. 60. property, is a breach of duty. 82 Ind.
3 State V. Greensdale, 106 Ind. 364. 388.
For a guardian to take notes for money ^ Vason v. Bell, 53 Ga. 416.
belonging to his ward, payable to him-
579
§ 388 THE DOMESTIC RELATIONS. [PAET IV.
of some hona fide third person, ought in justice to offer to restore
the consideration as far as he is able.^
§ 387. Transactions bet"ween Guardian and Ward ; Undue
Influence. — This brings us to the general subject of trans-
actions between the guardian and ward, from which the former
derives a benefit. Here, as in the guardian's purchases, equity
is not disposed to favor him. " In this class of cases," says
Judge Story, "there is often to be found some intermixture of
deceit, imposition, overreaching, unconscionable advantage, or
other mark of direct and positive fraud." ^ Equity will relieve
against such transactions, on the general principle of utility,
although there may not have been actual imposition ; but if an
improper advantage has been taken, the ground for relief is still
stronger. And it is noticeable that a more stringent rule has
been laid down as to guardians than applies to transactions
between parent and child ; for a guardian is not supposed to be
influenced by that affection for his ward which parents enter-
tain towards their own offspring, and therefore has no such
powerful check upon his selfish feelings.^
§ 388. Same Subject ; Situation of Parties at Pinal Settlement
of Accounts. — Such questions generally arise at and about the
time the ward attains majority, and pending the final settlement
of the guardian's accounts. The English rule is very strict,
and courts are extremely watchful to prevent all undue advan-
tage at this critical period. Therefore gifts and conveyances
of the ward's property, in consideration of the guardian's ser-
vices, on a final adjustment may be set aside afterward in equity,
even after the ward's death. " Where the connection is not dis-
solved, the accounts not settled, everything remaining pressing
1 See Myrick v. Jacks, 39 Ark. 293; he purchased and received under the
Part V. c. 5. contract ; but where, after majority
2 Story, Eq. Juris. § 307. and without fraud or undue influence,
3 Pier(.'e v. Waring, cited 1 Ves. such ward executes to his guardian a
380 ; Hylton v. Hylton, 2 Ves. 547 ; receipt for the value of the property
Hatch c. Hatcli, 9 Ves. 296. See Hill received by him, such act is a valid
on Trustees, 157-160. A ward may, ratification of the contract ; and this
after lie becomes of age, disaffirm a even thougli the ward was ignorant
contract which he made while an infant that he liad a right to disaffirm. Clark
with his guardian, without restoring or v. Van Court, 100 Ind. 113. See § 404.
offering to restore the property which
580
CHAP. IX.] RIGHTS AND LIABILITIES OF THE WARD. § 388
upon the mind of the party under the care of the guardian,"
observes Lord Eldon, "it is almost impossible that the trans-
action should stand." ^ Nor are the circumstances under which
the gift was made considered of much account ; for the guar-
dian's superior age and knowledge of the world, and the fact
that he holds the property in his hands, place him at a decided
advantage, whether he chooses to adopt a threatening tone or to
impose upon the ward's mind by excessive kindness. These
general principles apply, though not always in the same degree,
to all others sustaining fiduciary relations ; including receivers
and agents who manage the property of a cestui que trust. And
unfair advantages of every sort, which the guardian aims to
secure on a final adjustment of his accounts, — whether it be
in the shape of compensation or the waiver of indebtedness
incurred by his misconduct, — follow one invariable rule : that
equity will relieve the ward against the consequences of his
one-sided transaction.^
In this country the rule is somewhat different ; for certain
circumstances, such as the recognition that compensation of
some sort is justly due a trustee for his services, may fairly
contribute to relax the rule in the guardian's favor. Settlements
and bargains between the guardian and ward out of court are,
however, frequently set aside for corrupt influence. So are gifts
and conveyances in consideration of the guardian's services;
more especially when undue influence is shown from special
circumstances.^ A guardian cannot recall his own gift to his
ward ; though such a gift might lead the court to regard the
guardian's account for expenditure with favor towards him.*
In Pennsylvania it is said that settlements will not stand
1 Hatch V. Hatch, 9 Ves. 296. Sen. 379, where gift to an- agent was
2 Hylton V. Hylton, 2 Ves. 547 ; supported.
Wood V. Downes, 18 Ves. 120 ; Mul- » Hall v. Cone, 5 Day. 543 ; Waller
hallen v. Marum, 3 Dr. & W. 317 ; r. Armistead, 2 Leigh, 11 ; Sullivan v.
Aylward v. Kearney, 2 Ball & B. 463 ; Blackwell, 28 Miss. 737 ; Clowes v.
Hunter v. Atkins, 3 M. & K. 135 ; Van Antwerp, 4 Barb. 416 ; Briers v.
Macphers. Inf. 260-264; Revett v. Hackney, 6 Ga. 419; Fridge y. State,
Harvey, 1 Sim. & Stu. 502 ; Duke of 3 Gill & Johns. 103 ; Richardson v.
Hamilton i;. Lord Mohun, 1 P. Wms. Linney, 7 B. Monr. 571.
118. But see Cray v. Mansfield, 1 Ves. * Bond v. Lockwood, 33 111. 212;
Pratt V. McJunkin, 4 Rich. 5.
581
§ 388 THE DOMESTIC RELATIONS. [PAllT IV.
unless full deliberation and good faith are manifest ; but that a
settlement made in good faith, especially if wise and prudent,
cannot be impeached, after the ward's death, by his represen-
tatives.^ This is doubtless the rule elsewhere. And the mere
fact that a settlement has been made between guardian and
ward, with allowances in the guardian's favor, is not conclusive
of fraud, though every intendment is still to be construed on
the ward's behalf.^ Circumstances, such as great inadequacy
of price in a guardian's purchase of his ward's property shortly
after the latter reaches majority, would doubtless suffice, if not
rebutted by ample proof of fairness, for setting aside the trans-
action as fraudulent.^ In general, the burden is on the guar-
dian who relies upon an outside informal settlement to show
a full disclosure and that the ward understood himself to be
making a full and final settlement.*
The fact that settlements out of court are not generally re-
garded in this country as conclusive, inasmuch as the probate
guardian must still file his accounts and submit his transactions
to the court, is a great safeguard against fraud. A fixed rule is
established for the final adjustment of all matters in controversy
between guardian and ward.^ The chancery practice is to allow
the ward a reasonable time, after attaining majority, usually one
year, to reopen all accounts between himself and his guardian.^
Hence a receipt in full, or a formal release, has been set aside
as inconclusive.'^ And where the ward has made a partial in-
spection only, without examining the vouchers, or acted without
advice, or upon imperfect knowledge of the facts, so much the
1 Hawkins' Appeal, 32 Penn. St
263.
2 Kirby v. Taylor, 6 Johns. Ch. 242
McClellan v. Kennedy, 8 Md. 230
Spalding v. Brent, 3 Md. Ch. 411
Meek v. Perry, 36 Miss. 190 ; Myer i;
Rives. 11 Ala. 760.
3 Eberts v. Eberts, 55 Penn. St. 110;
compel a settlement. Hailey i;. Bond,
64 Ala. 399.
6 Matter of Van Home, 7 Paige,
46.
7 But a valid release absolving from
all lial)ility to account, and in fact
acquitting the guardian of liability for
unauthorized acts, is in some cases
Snell V. Elam, 2 Heisk. 82. recognized ; the late ward having thus
* Gregory v. Orr, 61 Miss. 307. acted when free from undue influence
^ In some States the probate courts and as one clearly sui juris. Satterfield
and chancery courts have concurrent v. John, 53 Ala. 127 ; Cheeyer v. Cong-
jurisdiction, and the ward may at his don, 34 Mich. 296.
election proceed in either forum to
682
CHAP. IX.] RIGHTS AND LIABILITIES OF THE "WARD. § 388
greater is his equity to relief.^ But in probate guardianship,
settlements out of court usually give way to settlements in
court.^ And if the ward makes no objection to the guardian's
final account as presented, or records his approval, and it is
thereupon judicially approved and recorded, and appeal is not
taken, no necessity for application of the chancery rule, of re-
opening the account, seems to exist, except upon very strong
proof of fraud or error.^ If the ward be dead, the guardian's
1 Revett V. Harvey, 1 Sim. & Stu.
502 ; Wych i-. Packington, 3 Bro. P. C.
46; Rapalje v. Norsworthy, 1 Sandf.
Ch. 399 ; Johnson v. Johnson, 2 Hill
Ch. 277; Womack v. Austin, 1 S. C.
». 8. 421.
2 Although the guardian has settled
with liis ward on the latter's arrival at
full age, he may be called afterward
to file and settle his account. Marr's
Appeal, 78 Penn. St. QQ. The guar-
dian must deliver to the ])roper party
entitled. A guardian's deposit of funds
with a county clerk, who afterwards
defaults, held (such officer not being
officially accountable for such funds) to
render the guardian and his bondsman
accountable and not the defaulting
clerk's bondsman. Scott v. State, 46
Ind. 20o ; State v. Fleming, 46 Ind.
206. And this even though the court
directed the guardian upon resigning
to deposit thus. Ib.;sedqu. Verbal di-
rections of a judge of probate will not
protect a guardian. Folger v. Heidel,
60 Mo. 284. A guardian having mort-
gaged as additional security for in-
debtedness to his ward, a suit to fore-
close is no bar to proceedings for ac-
counting against him and his sureties.
Lanier v. Griffin, II S. C. 565. As to
ex parte settlement in court, see Grav-
ett V. Malone, 54 Ala. 19. A guardian's
so-called account is inconclusive as
such, unless submitted to and approved
by the court. Beedle v. State, 62 Ind.
26. Judgment for money found to be
due by a guardian to his ward on set-
tlement with the ordinary must be col-
lected by process of execution ; at-
tachment for contempt based on the
failure of the guardian to pay and re-
turn of nulla bona does not lie. Burrow
V. Gilbert, 58 Ga. 70. And see as to
indictment, State v. Henry, 1 Lea, 720.
Nor has the ward a lien, equitable or
otherwise, upon his guardian's general
estate to secure an honest manage-
ment. Chanslor v. Ciianslor, 11 Bush,
663 ; Vason v. Bell, 53 Ga. 416. As to
accepting security from the guardian
in lieu of the security of his bond, see
Querin v. Carlin, 30 La. Ann. 1131.
Final settlement with infant ward
duly represented by a guardian ad
litem is as binding, as a rule, as a sim-
ilar one made with an adult. Stabler
V. Cook, 57 Ala. 22. But no final set-
tlement of a guardian's accounts, so as
to operate against the ward's rights,
can be made by the court while the
relation of guardian continues. Lewis
V. Allred, 57 Ala. 628. In Brown v.
Chadwick, 79 Mo. 587, a guardian paid
over a certain amount to his late ward,
but on mutual settlement in the pro-
bate court, a balance was found due
the guardian. For receipts given by
the ward after becoming of age, ac-
quiesced in for more than four years
and held prima facie binding, see 68
Ga. 741 ; 19 S. C". 560.
=* Kittredge v. Betton, 14 N. H. 401 ;
Musser v. Oliver, 21 Penn. St. 362 ;
Pierce v. Irish, 31 Me. 254 ; Boynton
V. Dyer, 8 Pick. 1 ; Hickman's Appeal,
7 Barr, 464 ; Southall j;. Clark, 3 Stew.
& Port. 338; McDow v. Brown, 2 S. C.
N. s. 95 ; Bybee v. Tharp, 4 B. Monr.
313 ; 72 Ala. 300. Yet a bill in chan-
cery for correction, &c., may be main-
tained, notwithstanding the ward's cer-
583
§388
THE DOMESTIC RELATIONS.
[part IV.
settlement must be with the ward's executor or administrator ;
but even thus a probate guardian's settlement is usually subject
to the court's revision upon his accounts.^ In short, the proper
place to seek for an accounting according to American practice,
is the probate court ; and the theory is that every guardian
shall settle with the judge, or with a successor, or with the
ward at full age ; or with the ward's legal representatives, as
the case may be, and upon final settlement pay over and deliver
all the ward's property and balances which may thus be found
tificate approving the probate account.
Moniiin v. Beroujon, 61 Ala. 196 ; Bruce
r. Doolittle, 81 111. 103; Lindsay v.
Lindsay, 23 Ohio St. 157. These are
matters of statute regulation. High v.
Snedicor, 57 Ala. 403. After long
lapse of time following a probate set-
tlement, every intendment is in its
favor. 66 Md. 250. Among decisions
which apply to transactions between
guardian and ward the following may
be noticed. Where a guardian ad-
vances money on his ward's account,
he may have an assignment of the se-
curity. Kelchner v. Forney, 29 Penn.
St. 47. In extending time for payment
of a security the guardian may some-
times arrange fairly with his ward for
special compensation. Burnham v.
Dalling, 3 C. E. Green, 132. The guar-
dian who does not insist on surrender-
ing good securities, properly taken, as
the estate of his ward, but pays out of
his own funds instead, in part, may be-
come to a corresponding extent joint
owner of tlie securities. Higgins v.
McClure, 7 Bush, 379. But the guar-
dian's own note or bond for the balance
of money adjudged due on a final set-
tlement is no payment to the ward, nor
does it discharge the guardian's sure-
ties. It is a mere postponement of
final payment, and affords evidence
of an admitted liability on his part.
Warllaw v. Gray, 2 Hill Ch. 644;
Hamlin r. Atkinson, 6 Rand. 574. See
also Douglas v. State, 44 Ind. 07. See
Coleman v. Davies, 45 Ga. 489. The
guardian cannot buy up an equitable
584
encumbrance, and enforce it against
the ward who is ready to refund. Tay-
lor V. Taylor, 6 B. Monr. 559. The
ward may release to one of joint guar-
dians, and thus hold the sureties,
Kirby v. Taylor, 6 Johns. Ch. 242;
though this principle may be affected
by general rules as to probate bonds.
A receipt in full discharges only for
the amount actually received by the
wards, may be contradicted by parol,
and binds only such wards as were au-
thorized to give it ; and its validity
and effect, though under seal, may be
considered in court. Witman's Ap-
peal, 28 Penn. St. 376 ; Beedle v. State,
62 Ind. 26 ; Barnes v. Compton, 8 Gill,
391 ; Felton v. Long, 8 Ired. Eq. 224;
Magruder v. Goodwyn, 2 P. & H. 561 ;
Stark V. Gamble, 43 N. H. 465; Wade
V. Lobdell, 4 Cush. 510. Cf. n. 7,
supra, p. 582 ; 4 Redf. Surr. 310. The
settlement of an insolvent guardian
with his ward is sometimes protected
by a court of equity as against the
guardian's assignee in insolvency.
Moore v. Hazelton, 9 Allen, 102. Stat-
utes are found which permit the ward
at full age to waive his legal right to
an account and join his guardian in
asking the court for a discharge.
M.-irr's Appeal, 78 Penn. St. 66. A
guardian's probate settlement will not
be presumed to include damages sus-
tained by the infant's estate through
fraud or misconduct of the guardian.
44 N. J. L. 64.
1 Ordway v. Phelps, 45 Iowa, 279.
CHAP. IX.] RIGHTS AND LIABILITIES OF THE WARD, § 389
due, otherwise action may be had upon his bond as for breach
of condition thereof.^ Accord and satisfaction with the adult
husband of a married minor ward, which upon the theory of
the old common law might have been admissible, is not to be
favored in these days when a wife's separate property is so
zealously protected ;2 but joint orders and joint receipts by the
married female ward and her husband, if she be still an infant,
are favorably regarded.^ Lapse of time, following an informal
settlement made with a ward who had reached majority, will
bar a suit for an account in chancery, and raise a presump-
tion that all transactions between them have been properly
adjusted.*
§ 389. Transactions after Guardianship is ended. — Transac-
tions after the period of guardianship, between parties lately
holding the relation of guardian and ward, especially if the
ward still remains under the influence of a former guardian,
may be set aside upon the same principle of constructive fraud.
It is true that bargains between them are good whenever the
influence is fully removed; even to gifts and conveyances in
consideration of past services, the accounts having been finally
closed, the property duly transferred, and the late parties to the
fiduciary relation standing toward one another as man and man.
Under these circumstances, the late guardian may purchase
property of his late ward.^ But such transactions are always
to be regarded with suspicion. And where the influence still
continues, as if the ward be a female, or a person of weak under-
standing, and the guardian continues to control the property or
to furnish a home, the court is strongly disposed to set aside
the bargain altogether.^ Thus, where a guardian procures the
1 But as to tlie guardian of a person to having accounts settled in probate
formerly insane, some States hold that court. Wing v. Rowe, 69 Me. 282;
he may settle with his ward after the Monnin v. Beroujon, 51 Ala. 196.
ward has recovered his reason, and ^ Dunsford v. Brown, 19 S. C. 560 ;
need not submit his account to tlie 68 Ga. 741 ; 86 N. C. 181.
probate court. Hooper v. Hooper, 26 * Bickerstaff v. Marlin, 60 Miss.
Mich. 435. An insane person under 509. An infant wife cannot pursue the
guardianship cannot sue to impeach guardian's bond unless her husband is
sales of his property made by his guar- of full age. 88 Ind. 200. See 80 Ala.
dian. Robeson v. Martin, 93 Ind. 420. 22.
2 Married wards stand essentially ^ Oldin i'. Samborn, 2 Atk. 15.
upon the same footing as others, as ^ See Macphers. Inf. 260 ; Huguenin
685
§ 389 THE DOMESTIC RELATIONS. [PART IV.
late ward's indorsement of his own notes without consideration,
the parties who take such notes with knowledge of the fiduciary
relationship have been enjoined from enforcing them against the
indorser.^ And if the guardian purchase rights of the late ward
in his father's property for a grossly inadequate consideration,
it will bo set aside.^ The circumstance that the guardiah had
better opportunities of acquaintance with the actual condition
and value of the property than the ward himself is properly to
be considered on the latter s behalf. Purchases of the guar-
dian's property by the late ward are to be closely scrutinized
in like manner.^
This principle applies to quasi guardians, even to parents.
Not many years since, a young lady, who had been living for
thirteen years with her mother and stepfather, joined the latter
within twelve months after she became of age, at his request
and under his influence, in a promissory note for which she
received no consideration. The payee some years later obtained
judgment at common law, and was about to take out execution,
when the Court of Chancery interfered on motion, restrained
the payee from enforcing his execution, and ordered the money
paid into court.^
But the ward may be barred by the lapse of time alone, or
taken in connection with his own acts, from disaffirming in law
or equity his own transactions or his guardian's unauthorized
acts ; though to be barred by his own acts in all such transac-
tions, it should appear that he acted after termination of his
disability, with deliberation and on full knowledge of the essen-
tial facts.^ Thus, where a guardian has exceeded his ward's
V. Baseley, 14 Ves. 273 ; Dent v. Ben- see Cowan's Appeal, 74 Penn. St. 829 ;
nett, 4 M. & C. 269 ; Mellish v. Mellish, Re Wood, 71 Mo. 623. Such transac-
1 Sim. & Stu. 138 ; Dawson i?. Massey, tions may be set aside against one
1 Ball & B. 219 ; Harris v. Carstarphen, recent fiduciary and upheld as to an-
69 N. C. 416 ; Garvin v. Williams, 50 other, as the equity of the case may
Mo. 206. warrant. Berkmeyer i'. Kellerman, 82
1 Gale V. Wells, 12 Barb. 84. Oliio St. 239.
2 Wright V. Arnold, 14 B. Monr. ■* Espey ;;. Luke, 15 E. L. &Eq. 579.
638 ; Williams v. Powell, 1 Ired. Eq. And see Maitland v. Backhouse, 16
460 ; Wickiser v. Cook, 85 111. 68. Sim. 58.
3 Sherry v. Sansberry, 3 Ind. 320. & Fi.sh v. Miller, 1 Hoff. Ch. 267;
But as to carrying out, on arriving at Bininn v. Miller, 27 Ga. 78; Scott v.
age, a reasonable family arrangement, Freeland, 7 S. & M. 409; Hume v.
586
CHAP. IX.] EIGHTS AND LIABILITIES OF THE WARD. § 390
income in purchasing for him a horse and buggy, there will be a
ratification presumed from circumstances showing that the ward
used them after majority and received the proceeds of their sale.*
And the composition of a debt on fair terms, made between an
insolvent guardian and his ward about eight years after the
latter became of age, will not readily be set aside for the pur-
pose of enabling the ward at so late a day to reach the sureties
on the guardian's bond.^ Where the late ward sets aside the
transaction for undue influence he ought to refund the money,
if any, which he received by way of consideration.^
§ 390. Marriage of Ward against Consent of Chancery or
Guardian. — It is the rule of the English courts of chancery
that no one can marry a ward of the court without its express
sanction. And wherever a guardian is appointed he must give
a recognizance that the infant shall not marry without its
leave.* If a man marry a female ward without the approbation
of the court, he, and all others concerned, will be treated as
guilty of a contempt of court, and punished accordingly. So
where there is reason to suspect an improper marriage of its
wards, the court will interfere, by injunction, to prevent the
marriage, to forbid all intercourse between the lovers, and even
to take the ward from the custody of the guardian or any other
person who is supposed guilty of connivance with the match.
When an offer of marriage is made, the court refers it to a mas-
ter to ascertain and report whether the match is suitable, and
also what settlement should be made upon the ward. Where
a marriage has been celebrated without leave, the court will
interfere to protect the female ward against the consequences
of her indiscretion, and will compel the husband to make a
Hume, 3 Barr, 144 ; Worrell's Appeal, 2 Motley v. Motley, 45 Ala. 555.
23 Penn. St. 44; Sherry v. Sansberry, 8 Wickiser v. Cook, 85 111. 68. See
3Ind. 320; Penn. v. Heisey, 19 111. 295; a delay favorably regarded in Voltz v.
Trader v. Lowe, 45 Md. 1 ; Fergnson v. Voltz, 75 Ala. 555.
Lowery, 54 Ala. 510; Singleton i;. Love, * Story, Eq. Juris. §§ 1358-1361;
1 Head, 357 ; Maophers. Inf. 588-543; Macphers. Inf. 191-209; Eyre v. Count-
Lee V. Brown, 4 Ves. 361; Cory v. ess of Shaftesbury, 2 P. Wms. Ill;
Gertcken, 2 Madd. 40 ; AUf rey v. All- Smith v. Smith, 3 Atk. 305 ; Stackpole
frey, 11 Jur. 981. v. Beaumont, 3 Ves. 98; Stevens v.
1 Caffey v. McMichael, 64 N. C. 507. Savage, 1 Ves. Jr. 154.
As to lapse of time as a barrier, see
supra, § 382.
587
§ 390
THE DOMESTIC RELATIONS.
[part IV.
suitable settlement upou her. This whole subject is peculiar
to the laws of England, and has no application whatever to
courts of chancery in this country ; unless it be that orders
might issue in some cases of improvident marriage to compel
the settlement of a suitable portion upon the female ward.
Yet authority is wanting for the exercise of chancery jurisdic-
tion to this full extent : so repugnant does it appear to the
whole tenor of our legislation. But where property of a female
ward is under the control of a court of equity, and the husband
needs its assistance, a suitable provision might be compelled on
her behalf ; for this would be in accordance with the general
law of husband and wife.^
1 Kenny v. Udall, 5 Johns. Ch. 464,
473; 8. c. 3 Cow. 591; Van Epps v.
Van Deusen,4 Paige, 64; Van Deusen
V. Van Deusen, 6 Paige, 366. See also
Redfield's n. to Story, Eq Juris. § 1361 ;
Chambers v. Perry, 17 Ala. 726. The
guardian of a ward wlio has impru-
dently married without his assent has
been permitted, in this court, to bring a
bill in equity for procuring the settle-
ment of the ward's moderate fortune
upon her, against her husband's wishes.
Murphy ?;. Green, 58 Tenn. 403. Trusts
688
for children are sometimes made with a
proviso as to the child's marrying with
tlie approbation of the trustee or testa-
mentary guardian. See Tweedale v.
Tweedale, 7 Ch. D. 633.
As to a settlement upon a female
infant, a ward of cliancery, who mar-
ried without the sanction of the court
or the knowledge of the guardian, and
was afterwards divorced, see Buck-
master V. Buckmaster, 33 Ch. D. 482;
§ 399. And see 25 Ch. D. 482.
PAET V.
INFANCY.
CHAPTER I.
THE GENEKAL DISABILITIES OF INFANTS.
§ 391. Age of Majority. — All persons are infants, in legal
contemplation, until they have arrived at majority. The period
of majority differs in different States and countries ; but this
general principle remains the same.
By the civil law, full majority was not attained until the
person had completed his twenty-fourth year ; he was then said
to he per/ectcn cetatis — cctatis legitimce} This period was like-
wise adopted in France (though it was afterwards changed),
and it prevails still in Spain, Holland, and some parts of Ger-
many.2 gy ^j^g French civil code, the age of full capacity is
twenty-one years, except that twenty-five years is the majority
for contracting marriage without paternal consent, by the male,
and twenty-one by the female.^ The law of Scotland adopts
the age of twenty -one.* Among the Greeks and early Romans
women were never of age, but subject to perpetual guardian-
ship, except as wives ; this gradually changed, and the civil
law, as it stood in the time of Justinian, permitted females as
well as males to attain their majority at twenty-five.^
1 1 Burge, Col. & For. Laws, 11.3. * E^sk. Inst. b. 1, tit. vii. ; 1 BL
2 Ih. 114. Com. 464.
3 Code Civil, §§ 145, 488; 2 Kent, » Inst. 1, 23, 1 ; 1 Bl. Com. 464.
Com. 233.
589
§ 392 THE DOMESTIC IlELATIONS. [PART V.
The common law of England, from the remotest times, has
fixed twenty-one as the period of absolute majority for both
sexes ; or, to be more exact, an infant attains full age on the
beginning of the day next preceding the twenty-first anniver-
sary of his birth.i The same rule is applied in most parts of
the United States, though, in some of the States, females have
an enlarged capacity to act at eighteen.^ Under the statutes of
Vermont, Ohio, and Illinois, and some other western States,
females are deemed of age at eighteen.^ The Code of Louis-
iana follows common-law, not civil-law, principles, and adopts
twenty-one as the limitation for both sexes.^ Thus arbitrary is
the law which fixes the period of majority ; nature assigning no
precise and uniform period at which the disability of infancy
shall cease, yet clearly indicating that there must be some such
period.
A man born the first day of February, 1600, after eleven
o'clock at night, was adjudged in England to be of full age after
one o'clock on the morning of the last day of January, 1621.^
This is because the common law makes no allowance for frac-
tions of a day. But the civil law, in order to secure to the
person the full protection afforded on account of his minority,
did not hold the commencement of the day to be its completion,
if injurious to his interests.^ In some instances the civil law
permitted the State or sovereign to grant vcnia octatis to full-
grown persons who stood in need of it, and thus to place them
constructively on the footing of infants ; but nothing of the sort
is recognized at common law.'^
§ 392. Growing Capacity during Non-age ; Legislative Relief
from Non-age. — The principle of an enlarging capacity in in-
1 2 Kent, Com. 2.33; 1 Bl. Com. 463; Texas. Means v. l?obinson, 7 Tex.
1 Salk. 44 ; Ld. Raym. 480, 1096 ; 3 502. See 19 Neb. 429.
Wils. 274; Hamlin v. Stevenson, 4 ^ Fitzhue v. Bennington, 6 Mod.
liana, 597 ; State v. Clarke, 3 Harring. 259 ; 1 Salk. 44, and citations in last
557 ; Wells v. Wells, 6 Ind. 447. section. And see 1 Jarm. Wills, Eng.
2 2 Kent, Com. 23.3. See Crapster ?;. ed. 1861, 89; Met. Contr. 38. Judge
Griffith, 2 Bland Cli. 5. Bedfield dissents from this rule. See
3 Sparhawk v. Bucl, 9 Vt. 41 ; Ste- 1 Redf. Wills, 18-20.
phenson v. Westfall, 18 111. 209. ^ j. Voet, lib. 4, tit. 4, n. 1.
* Louisiana Code, arts. 41,93. This ' See 1 Burge, Col. & For. Laws,
was the long-settled rule likewise in 116, 117.
590
CHAP. I.] THE GENERAL DISABILITIES OF INFANTS. § 393
fants has been incidentally noticed. It is reasonable to suppose
that they who are constantly growing become naturally com-
petent for certain purposes long before they attain complete
majority, and young men and women may well be allowed the
exercise of more discretion than babes. Hence we find that
infants of suitable age are allowed to contract a valid marriage ;
that males of th=e age of fourteen and upwards, and females at
the age of twelve, could once dispose of personal estate by will,
and at fourteen may still choose or nominate their own guar-
dians ; that children of discretion have a voice in determining
the right of custody and control. But not until attaining
majority could a person at the common law convey, lease, or
make contracts in general which would bind him ; and the fore-
going must then be considered as among the exceptions to the
rule that persons are legally incapable so long as they are
minors.^
Legislative emancipation has existed in Louisiana. In the
case of an emancipated minor under such statutes, by which
he is relieved from the time prescribed by law for attaining
the age of majority, he is invested with all the capacities in
relation to his property and obligations which he would have
had he actually arrived at the age of twenty-one years. And
he may be appointed administrator of an estate ^ or surety on
a bond.^ But the right of legislative emancipation seems
never to have been distinctly admitted at the common law in
any such sense.
§ 393. Conflict of Laws as to True Date of Majority. — Sup-
posing a conflict of laws should arise over the contract of an
infant by reason of the period of majority being differently
assigned by the law of the domicile of his origin and that of
his actual domicile, or of the situation of real property, or of
the place where he has entered into a contract. The rules for
such cases are these : Fi^'st, that the actual domicile will be
1 Co. Litt. 78 b, 89 b, and Harg. note. 168. See also State v. Bunce, 65 Mo.
As to the privilege of wills, see Stat. 349. As to emancipation of a minor
1 Vict. c. 26, § 7 ; infra, § .397. in our usual sense, see supra, § 267.
2 Succession of Lyne, 12 La. Ann. ^ Cooper v. Rhodes, 30 La. Ann.
155 ; Gordon v. Gilfoil, 99 U. S. Supr. 533.
591
§ 394 THE DOMESTIC RELATIONS. [PART V.
preferred to the domicile of birth. Second, that the law of
situation of real property must prevail over that of domicile.
Third, that the law of the place where a contract is made must
prevail over that of domicile.^
The right of action for the recovery of real estate belonging
to an infant will be governed, not by the law in force when the
right of action accrued, but by the law in force when the infant
became of age.^
§ 394. Infant's Right of Holding Office and Performing Official
Functions. — Next, as to the infant's right of holding office.
There are numerous old cases to be found in the books where
an infant has been adjudged capable of holding offices that
involve no pecuniary or public trust, and require only moderate
skill and diligence ; such as the office of park-keeper, forester,
sheriff, and jailer ; though on the ground apparently that such
offices formerly were capable of grant, and the grantees had
the power to act by deputy.^ But the modern doctrine seems
to be clear that no office of pecuniary and public responsibility
can be conferred upon an infant ; not so much because of
mental incapacity on his part, as for the very good reason that
a person who is not legally responsible for the duties of Jiis
office cannot be, in point of law, a proper person to execute
them. A public office which requires the personal receipt
and disbursement of money is not then to be.j.filled by an
infant.^ Nor can an infant act as administrator, executor, or
trustee, nor by his concurrence (in the absence of fraud on his
part) sanction a breach of trust.^ He cannot be a guardian, an
1 Male V. Roberts, 3 Esp. 163; 1 2 Gilker v. Brown, 47 Mo. 105.
Burge, Col. & For. Laws, 118 et seq. ; ' Bac. Abr. Infancy and Age (E) ;
Story, Confl. Laws, §§ 75, 82, 332; 3 Mod. 222; Young v. Fowler, Cro.
Tiiompson v. Ketcham, 8 Johns. 189 ; Car. 555 ; Macphers. Inf. 448.
Ilierstandi'. Kuns, 8Blackf. 345; Saul * Claridge v. Evelyn, 5 B. & Aid.
V. His Creditors, 17 Martin, 597; 2 81, See Crosbie u. Hurley, 1 Alcock&
Kent, Com. 233, n. ; Huey's Appeal, 1 Napier, 431.
Grant (Penn.), 51; Wharton, Confl. & Macphers. Inf. 449 ; Wilkinson r.
§ 112. An order of court of another Parry, 4 Russ. 372. But though
State, made in conformity to a statute wrongly appointed, he will be liable to
of that State, and purporting to relieve account for money received by him
an infant residing in that State from after reaching majority. Carow v.
the disability of non-age, can have no Mowatt, 2 Edw. Ch. 67.
operation in Missouri. State v. Bunce,
65 Mo. 349.
592
CHAP. I.J THE GENERAL DISABILITIES OF IXFANTS. § 394
attorney under a power (except to receive seisin), a bailiff, a
factor, or a receiver.^
The service of a notice' of replevy by an infant is, in Eng-
land, illegal and void ; and it would appear that he cannot be
a sheriff's officer.^ But in New Hampshire it is held that an
infant may be deputed to serve and return a particular writ ;
on the ground that while offices where judgment, discretion,
and experience are essentially necessary to the proper dis-
charge of the duties they impose, are not to be entrusted to
infants, offices may be held which are merely ministerial, and
require nothing more than skill and diligence.^ But a dis-
tinction is properly taken between the case of officers of justice
ordinarily liable for false return, misfeasance, and the like,
and those who have no such liability; and for this reason,
while, in Vermont, an infant may serve a particular writ, he
cannot be specially authorized to serve mesne process by the
magistrate.*
In ancient times minors appear to have frequently sat in
the British Parliament. Thus it is related that a son of the
Duke of Albemarle took part in debate when only of the age
of fourteen ; and history states that about the 10th James I.
there were forty members not above twenty years of age, and
some not above sixteen.^ But by statute it is now provided
that an infant cannot sit in the House of Lords, or vote at an
election for a member of the lower house, or be elected.^ There
are provisions in the Constitution of the United States and of
the different States, adopted undoubtedly because it was con-
sidered contrary to sound public policy to commit any offices
requiring considerable skill and prudence, not to say pecuniary
and public responsibility, to the young and immature. By the
Constitution of the United States, no person can be President
who has not attained the age of thirty-five years ; nor a senator,
who is under the age of thirty years ; nor a representative in
1 Macphers. Inf. 448, 449 ; Co. Litt. < Barrett v. Seward, 22 Vt. 176;
3 6, 172. Harvey v. Hall, ib. 211 ; 53 Vt. 109.
2 Cuckson V. Winter, 2 M. & Ry. s gee Macphers. Inf. 449, n. ; 1
306. Pari. Deb. 420, notes.
3 Moore v. Graves, 3 N. H. 408. "^ 7 & 8 Will. III. c. 25.
But see Tyler v. Tyler, 2 Root, 519.
38 593
§ 395 THE DOMESTIC RELATIONS. [PART V.
Congress who is not twenty-five years of age. Corresponding
laws abound in the different States as to the eligibility of local
officers. So is the disqualification to vote universally applied by
our laws to minors, and restrictions upon the right of suffrage
may extend even further.^
The true principle to be extracted from the authorities
seems therefore to be that the court will inquire whether an
infant, as such, is by law capable of discharging sviitably, faith-
fully, and efficiently the duties of a particular office, and so
as to leave open all the usual remedies to others ; and this
is a proper rule of guidance, the statutes being silent, rather
than ancient precedents laid down as to particular offices in
times when they were transmissible in families and mere
sinecures.^
There are, undoubtedly, certain offices which an infant
may properly hold. And the legislature is competent to
estal>lish an earlier or later period at which persons shall
be deemed of full age for certain purposes. Hence in Massa-
chusetts, under a law fixing eighteen years as the age for
military duty, and empowering an infant at that age to
enlist of his own accord, and without the parent's assent,
in the militia, it is held that he may be elected company clerk,
or even, as it would appear, a commissioned officer of the
company.^
§ 395. Infant's Responsibility for Crime. — Infants who have
arrived at sufficient maturity in years and understanding are
capable of committing crimes ; and it is said that they cannot
plead in justification the restraint of a parent, as married wo-
men can that of the husband ; although, as we presume, duress
or compulsion may properly be set up in defence, wherever a
young child is indicted and tried for a crime. The period of
life at which a capacity of crime exists is determined by law
to a certain extent ; for a child under seven is conclusively
1 Tlie officer who usually adminis- not hold, see Bac. Abr. Infancy and
ters the oath of office cannot refuse to Age (E) ; also Moore v. Graves, 3 N. H.
do so on such grounds. People v. 408, passim.
Dean, 3 Wend. 438. ^ Dewey, Petitioner. 11 Pick. 205.
^ For some of the old decisions as to See Hands r. Slaney, 8 T. R. 578. In-
what offices an infant might or might fant may be a notary. 25 Alb. L.J. 12.
59-4
CHAP. I.] THE GENERAL DISABILITIES OF INFANTS. § 395
incapable of crime, one between seven and fourteen only prima
fncAc so, and one over fourteen prima facie capable like any-
other.^ An exception to this rule is usually stated in certain
cases of physical impotence ; for it is argued that a boy under
fourteen years of age is physically undeveloped, and therefore
cannot be legally guilty of rape or similar crimes.^ Incapacity
for committing a crime might properly be considered in con-
nection with incapacity of criminal intent ; and yet the later
rule of Ohio and some other States seems the more correct one,
which is to reject in such case any doctrine of conclusive pre-
sumption of incapacity, and allow evidence of criminal intent
to be furnished;^ though investigations on this point might be
held contra honos mores. The general rule is that capacity for
crimes in persons above the age of seven years is a question of
fact ; the law assuming prima facie incapacity under fourteen,
and capacity over fourteen ; but subjecting that assumption to
the effect of proof as to the real fact.*
Where a statute creates an offence, infants under the age of
legal capacity are not presumed to have been included;^ yet
where an act is denounced as a crime, even felony or treason, it
extends as well to infants, if above fourteen years, as to others.^
And a child under fourteen may be within the fair scope of a
particular statute misdemeanor.''
An infant may be indicted for obtaining goods by false pre-
1 1 Bish. Crim. Law, § 460 ; 1 Buss. People v. Eandolph, 2 Parker, 174;
Crimes, Grea. ed. 2 ; Marsh v. Loader, Commonwealth v. Green, 2 Pick. 3^0.
14 C. B. N. s. 535. The text-writers * State y. Learnard, 41 Vt. 585; Wil-
have said that an infant can never let v. Commonwealth, 13 Bush, 230;
plead constraint of the parent, but this State v. Toney, 15 S. C. 409 ; 76 Mo.
may be doubted. See Humphrey i". 355. See Dove v. State, 37 Ark. 261.
Douglass, 10 Vt. 71; Commonwealth "^ See State ('. Howard, 88 N. C. 650.
V. Mead, 10 Allen, 308; State v. Lear- « 1 Hawk. 1; 4 Bl. Com. 23; 1
nard, 41 Vt. 585. Bish. Crim. Law, § 462.
' 1 Bish. Crim. Law, §§ 460, 672, "^ Statutes, for instance, which ar-
and cases cited ; State v. Handy, 4 rest for begging on the streets, gather-
Harring. 566 ; Reg. v. Phillips, 8 Car. & ing garbage from the markets, etc.
P. 736. But see Wagoner v. State, 5 There are various penal statutes which
Lea, 352, which holds that this pre- provide for sending young children
sumption as to a boy nearly fourteen who are found offenders, to the house
years is not conclusive, but subject to of refuge or some similar institution
proof. for youth. 101 N. Y. 195; 76 Me.
3 Williams v. State, 14 Ohio, 222; 324; 06 How. Pr. 178.
595
§ 397 THE DOMESTIC RELATIONS. [PART V.
tences,^ or for stealing.^ He is liable to bastardy process.^
And, following the general principle already announced, chil-
dren less than fourteen have been convicted for arson and
murder, the prima facie presumption of incapacity being over-
come;* and for perjury.^ But a child less than seven cannot
be indicted for nuisance, though owner of the land.^ And it is
reasonable to add that the evidence of malice or "mischievous
discretion " which is to supply age ought to be strong and clear,
beyond all doubt and contradiction.'
§ 396. Infant's Criminal Complaint; Infant as Prosecutor;
Criminal Offences against Infants. — An infant, it is held in
Tennessee, may make a criminal complaint, and be what is
known as the prosecutor.^ There are various criminal offences
against young children set forth in our codes.^
§ 397. Whether Infant may make a Will. — The age at which
persons may dispose of their property, real or personal, by last
will and testament, is now determined by statute in England,
and in most parts of the United States. In England the mod-
ern statute 1 Vict. c. 26, § 7, provides that no will made by any
person under the age of twenty-one years shall be valid. This
went into effect in 1838.^^ And the provisions of this statute
have been substantially enacted either before or since in most
of the American States ; so that the policy of the present day
may be said to exclude the testamentary capacity of all infants.^^
Nor is this unjust; for the law itself draws up as good a will
for children as they are likely to make for themselves.
i People V. Kendall, 25 Wend. 399. answer for criminal offence, see State
2 Dove V. State, 37 Ark. 261. Infant v. Weatherwax, 12 Kan. 463. Where a
responsible for larceny as bailee. 15 minor is imprisoned under an illegal
Q. B. D. 323. sentence, the proper remedy is by
2 Chandlery. Commonwealth, 4 Met. habeas corptts, and not annulment of
(Ky.) 66. the sentence. Cathing v. State, 62 Ga.
* See 4 Bl. Cora. 23, 24; 1 Bish. 243.
Crim. Law, § 464, and cases cited; 8 State r. Dillon, 1 Head, 389.
State V. Barton, 71 Mo. 288. ^ Such as infanticide, cruelty to
^ Willety. Commonwealth, 13 Bush, children (which certain societies seek
230. to suppress), and corruption of morals.
6 People V. Townsend, 3 Hill, 479. See 58 N. H. 475 , 67 Ga. 29 ; 77 Mo.
7 See 4 Bl. Com. 21; Common- 103 ; 107 Ind. 483 ; 99 N. Y. 204.
wealth V. Mead, 10 Allen, .398 ; Steplien- " See also 20 & 21 Vict. c. 77.
son ,'. State, 28 Ind. 272 ; State v. Tice, " Schouler, Wills, §§ 39-43 ; 4 Kent,
90 Mo. 112. As to recognizance to Com. 506, 507.
596
CHAP. I.] THE GENERAL DISABILITIES OF INFANTS. § 397
But the ancient rule was otherwise : namely, to the effect
that males at fourteen and females at twelve might make wills
of their personal property; thus conforming to the older rule
of the civil and canon law.^ And fourteen, as we have seen,
was the age when a guardian by election of the infant might be
appointed.^ But though no objection was admissible to the
probate of wills in the ecclesiastical courts, merely for want of
age, yet if it could be shown that the testator was not of suffi-
cient discretion, whether of the age of fourteen, or four-and-
twenty, that would overthrow the testament.^ This always
operated to discourage such wills from being made. And yet
the objection was not insuperable ; for there is a clear instance
on record where an infant sixteen years of age made a testament
in favor of his guardian and schoolmaster, which was estab-
lished by evidence of the child's capacity and free will.*
The English text-writers, with reference to the old law, have
laid it down that express approval of a former will after the
infant had accomplished the years of fourteen or twelve would
make it strong and effectual.^ But as concerns the later stat-
utes, if not as a general principle for modern times, it appears
pretty clear that where a will is required to be in writing, and
executed before witnesses, in order to be valid, and is thus exe-
cuted before the testator arrives at the required age, it cannot
be rendered valid after the testator arrives at such age, except
by republication with all the usual formalities.^ And even the
old books admit that the mere circumstance of an infant having
lived some time after the age when he became capable of mak-
ing a will cannot alone give validity to one made during his
incapacity.''
1 1 Wms. Ex'rs, 15 ; Schouler, s j -Wms. Ex'rs, 16 ; Swinb. pt. 2,
Wills, §§ 40, 41. But there are some § 2, pi. 7 ; Bac. Abr. Wills, B.
irreconcilable opinions on the subject ^ Schouler, Wills, Part IV. c. 3.
to be found in the old books. See Co. ^ Herbert v. Torball, 1 Sid. 162 ;
Litt. 89 b, Margrave's note. Swinb. pt. 2, § 2, pi. 5 ; 1 Wms. Ex'rs,
2 See §§ 289, 301. 16. Formerly, as we have seen, a
2 2 Bl. Com. 497 ; 1 Wms. Ex'rs, father, though a minor, might appoint
15. a testamentary guardian of his own
* Arnold v. Earle, 2 Cas. temp. Lee, child ; but this right also is taken from
629. a minor father, under the modern stat-
ute of wills. 1 Vict. c. 26 ; see § 287.
697
§ 398 THE DOMESTIC RELATIONS. [PART V.
The maxims of the older law on this subject adhere some-
what to American jurisprudence; for we find that in some of
our States a distinction is still made between personal and real
estate as to the right of an infant to dispose of his property by
will.i
§ 398. Testimony of Infants. — Infants may be admitted to
testify in the courts, if of sufficient understanding. There is
no precise age at which the law excludes them on the conclu-
sion that they are mentally and morally incompetent. By the
common-law rule, every person over the age of fourteen is pre-
sumed to have common discretion and understanding until the
contrary appears ; but under that age it is not so presumed ;
and the court will therefore make inquiry as to the degree of
understanding which the child offered as a witness may possess.
But this preliminary examination, which is made by the judge
at discretion, is to be directed to the point whether the witness
comprehends the solemn obligation of an oath ; and if the child
appears to have sufficient natural intelligence to distinguish
between good and evil, and to comprehend the nature and effect
of an oath, he is an admissible witness.^ In Indiana a statute
provides that all children over the age of ten shall be presumed
to be competent. And in various States a child nearly ten
years of age has been deemed competent to testify, whose
1 Thus in Rhode Island, Virginia, Vermont and Maryland, at eighteen.
Arkansas, and Missouri, the age for In New York and Illinois the principle
making wills of real estate is fixed at is to discriminate between real andper-
tweiity-one, and for disposing of person- sonal estate, and between males and
alty in the same manner at eighteen; females; and while as young as six-
and in Connecticut at twenty-one for teen a female in the former State may
real estate, and seventeen for person- make a valid will of personalty, but a
alty. Among the States where the male only at eighteen See Schoulcr,
right to dispose of estate, both real and Wills, § 48 ; 4 Kent, Com. 506, 507 ;
personal, is now limited to persons of Williams v. Heirs, Busbee, 271 ; Davis
full age, are Massachusetts, Vermont, v. Baugh, 1 Sneed, 477 ; Moore v.
New Hampshire, Maine, Oiiio, Indiana, Moore, 2'i Tex. 637; Posey v. Posey,
New Jersey, Kentucky, Virginia, Penn- 3 Strobh. 167; Corrie's Case, 2 Bland,
sylvania, Delaware and Michigan. For Ch. 488.
latest changes see Stimson, American 2 Greenl. Evid. § 367 ; 2 Russ.
Statute Law. In some States a dis- Crimes, 500; Rex v. Brazier, 1 East
tinction is made between males and P. C. 443; State v. Whittier, 21 Me.
females as to testamentary capacity, 341.
and the latter may make wills, as in
598
CHAP. I.] THE GENERAL DISABILITIES OF INFANTS. § 398
answers when she was examined by the court disclosed that,
though she was ignorant of the nature of the punishment for
false swearing, yet she comprehended the obligations of an oath
and believed that any deviation from the truth, while under
oath, would be followed by appropriate punishment.^ Less ex-
pression even than this has been required of children about this
age, where the due comprehension appeared, notwithstanding
nervous agitation natural to the surroundings.^ Of the capacity
of such witnesses for comprehending the matter as to which
they testify, of the strength of the memory, and in general as
to the weight which may be attached to their testimony in any
particular state of facts, a jury should make their estimate
carefully.^
Children have been admitted to testify at the early age of
seven, and even of five ; * but the dying declarations of a child
only four years old were once ruled out,^ for the reason that,
however precocious the child's mind, she could not have had
that idea of a future state which is necessary to make such
declarations admissible.^ Different systems of religious edu-
cation render the judicial test in this respect far from precise ;
for while there are cases where the court has put off a trial, in
order to specially instruct an infant witness as to the nature
and solemnity of an oath, this practice is not of late years
strongly countenanced ; the opinion gaining ground that the
effect of the oath upon the conscience should arise from reli-
gious feelings of a permanent nature and gradual growth.'' But
in cases where the intellect is sufficiently matured, and the
education only has been neglected, it appears that a postpone-
1 Blackwell v. State, 11 Ind. 196; criminal assault upon her. Wade v.
Draper t-. Draper, 68 111. 17 ; Vincent State, 50 Ala 164.
V. State, 3 Heisk. 120. 5 Rex v. Pike, 3 Car. & P. 598 ; Rex
^ Davidson v. State, 39 Tex. 129; v. Brazier, 1 East P. C. 443.
State v. Scanlan, 58 Mo. 204. « Rex v. Pike, 3 Car. & P. 598. And
* Competence to testify is not in- see Rex v. Brazier, 1 East P. C. 443 ;
consistent with civil immimity at such 1 Greenl. Evid. § 367 ; Commonwealth
an age for perjury. Johnson v. State, v. Hutchinson, 10 Mass. 225.
61 Ga. 35. See Peterson v. State, 47 ' Rex v. White, 2 Leach C. C. 48,
Ga. 524. n. ; 1 Greenl. Evid. § 367 ; Rex v. Wil-
* lb. Female child of eight held a liams, 7 Car. & P. 320 ; Regina v.
competent witness in prosecution for a Nicholas, 2 Car. & K. 246.
599
§ 399
THE DOMESTIC RELATIONS.
[part V.
ment of the trial might properly be asked.^ Where a young
child's examination shows an utter want of anything like a
knowledge of the nature or character and consequences of an
oath, or of human relations to God and the Divine penalties
denounced against false swearing, the child ought not to be
allowed to testify.'-^
On the principle that chancery is bound to see that an infant
litigant's rights and interests are protected, not only is an un-
willing infant not compellable to testify in his suit, but his
deposition, though given freely on his part, may be suppressed,
at the disci'etion of the court, as containing admissions unfavor-
able to his cause. 3
§ 399. Marriage Settlements of Infanta. — With respect tO
the marriage settlement of infants, there was formerly consid-
erable controversy. For, on the one hand, it was urged that
infants were in general incapable of entering into valid con-
tracts with respect to their property ; on the other, that since
infants might make a valid contract of marriage, they ought
1 Per Pollock, C B., Regina v. Nicho-
las, 2 Car. & K. 246. A child is not in-
competent to testify because instructed
by a minister concerning the nature of
an oath between the first day, when
offered and the next when permitted to
testify. Commonwealth v. Lynes, 142
Mass. 577.
With regard to the weight and ef-
fect of the testimony of children. Black-
stone observes that when the evidence
of children is admitted, " it is much to
be wished, in order to render the evi-
dence credible, that there should be
some concurrent testimony of time,
place, and circumstances, in order to
make out the fact ; and that a con-
viction should not be grounded on the
unsupported accusation of an infant
under years of discretion." 4 Bl. Com.
214. To this Mr. Phillips replies that
in many cases, undoubtedly, the state-
ments of children are to be received
with great caution ; j'et that a prisoner
may be convicted upon such testimony
alone and unsupported ; and that the
extent of corroboration necessary is a
600
question exclusively for a jury. It
may be observed that the preliminary
inquiry as to the competency is not al-
ways of the most satisfactory descrip-
tion, and is such that a child n)ight,
upon slight practising of the memory,
appear well qualified. The severest
test appears in the examination which
follows ; and as Mr. Phillips well con-
cludes, "Independently of the sanction
of an oath, the testimony of children,
after they have been subjected to
cross-examination, is often entitled to
as much credit as that of grown per-
sons ; what is wanting in the perfec-
tion of the intellectual faculties is
sometimes more than compensated by
the absence of motives to deceive." 1
Phil. Evid. 9th ed. 6, 7.
•■2 See Reason v. State, 72 Ala. 191 ;
State V. Belton, 24 S. C. 185.
3 Serle v. St. Eloy, 2 P. Wms. 386 ;
Napier v. EflSngham, 2 P. Wms. 403;
Moore v. Moore, 4 Sandf. Ch. 37. But
see Walker v. Thomas, 2 Dick. 781 ;
Bennett v. Welder, 15 Ind. 332.
CHAP. I.] THE GENERAL DISABILITIES OF INFANTS. § 399
to be able to arrange the preliminaries. At an early period
the opinion prevailed in England that the marriage considera-
tion communicated to the contracts of infants, respecting their
estate, an efficacy similar to that which the law stamps upon
marriage itself ; and Lords Hardwicke and Macclesfield con-
tributed to strengthen it, by maintaining that the real estate
of an infant would be bound by a marriage settlement.^ Lord
Northington later held to a different opinion ; and Lord Thur-
low overturned the doctrine altogether, boldly declaring that
the contracts of male and female infants do not bind their
estates, and that consequently a female infant cannot be bound
by any articles entered into during minority, as to her real
estate ; but may refuse to be bound, and abide by the interest
the law casts upon her, which nothing but her own act after
the period of majority can fetter or affect.^ Other distinguished
equity jurists, including Lord Eldon, subsequently expressed
their approval of Lord Thurlow's decision.^ And the rule be-
came settled within the next fifty years, that the real estate of
a female infant was not bound by the settlement on her mar-
riage, because her real estate does not become by the marriage
the absolute property of the husband, although by the marriage
he takes a limited interest in it.* So was it decided that neither
the approbation of the parents or guardians, nor even of the
court of chancery, independently of positive statute, would make
the infant's settlements binding.^ The inconvenience of such a
state of things called for statute remedy ; and in 1855 an act
was passed which enabled male infants not under twenty, and
female infants not under seventeen, with the approbation of
the court of chancery, to make valid settlements of all their
• Harvey v Ashley, 3 Atk. 607; Campbell v. Ingiiby, 21 Beav. 567; 25
Cannel v. Buckle, 2 P. Wms. 243 ; L. J. Eq. 760. For summary of the
Peachey, Mar. Settl. 25 et seq. English chancery doctrine, see Peachey,
2 Drury v. Drury, 2 Eden, 58 ; Durn- Mar. Settl. 37.
ford V. Lane, 1 Bro. C. C. 115 ; Clough & Peachey, Mar. Settl. 5.3, 54 ; Ih. 29-
V Clough, 5 Ves. 716. 48, and cases cited passim; In re War-
3 See Peachey, Mar. Settl. 28; Mil- ing. 21 L. J. Eq. 784 : Simson v. Jones,
ner v. Lord Harewood, 18 Ves. 275 ; 2 Russ. & M. 365 ; Borton v. Borton,
Caruthers v. Carutiiers, 4 Bro. C. C. 16 Sim. 552; Field v. Moore, 25 L. J.
50!). Eq. 69; 25 E. L. & Eq. 498.
1 Simson i'. Jones, 2 Russ. & M. 376 ;
601
§ 399 THE DOMESTIC RELATIONS. [PART V.
property, real or personal, and whether in possession, reversion,
remainder, or expectancy.^ The statute has already received
some interpretation in the courts ; and so much in favor was it,
that almost immediately upon its passage it was acted upon in
chancery. Under this statute settlements have been upheld
even where infant wards married in contempt or defiance of
court ; and a settlement may be made on the occasion of an in-
fant's marriage after the marriage has actually taken place.^
This subject has received little attention in the United States ;
notwithstanding the plenary jurisdiction over the estates and
persons of infants which a court of equity is admitted to exer-
cise in many of our States. I^ut in New York some decisions
have been made, of a like tenor with those in the English chan-
cery. Thus, in 1831, that a legal jointure settled upon an
infant would bar her dower ; and, by analogy to the statute, a
competent and certain provision settled upon the infant in bar
of dower, to which there is no objection but its mere equitable
quality.^ And in 1843, that a female infant was not bound by
agreement to settle her real estate upon marriage.* So, in
Maryland, a female infant cannot bind her real estate by her
marriage settlement.^
An objection to the validity of a marriage settlement, on the
ground that the parties to it were infants, can only be made by
the parties themselves. A trustee acting under it has no such
power.^ But since privies in blood can avoid an infant's void-
able conveyance, it is held that if the infant dies after making
a settlement of real estate, and without having attained major-
1 18 & 19 Vict. c. 43. See Peachey, over the property of its wards or under
Mar. Settl. 45. For construction of the infant's settlement act ; and even
this statute, see In re Dalton, 39 E. L. if invalid in its inception it had been
& Eq. 14.5; s. c 6 De G. M. & G. 201. adopted, confirmed, and acquiesced in
But see Re Catherine Strong, 2 Jur. by the infant, by various acts during
N. s 1241 ; 5 W. R. 107. Such infant and after her coverture. Buckmaster
may consent to a proposed reinvest- v. Buckmaster, 33 Ch. I). 482 (re-
ment. In re Cardress, L. R. 7 Ch. D. versed, 35 Ch. D. 21). And see Samp-
728. Or exercise during minority a son /?*', 25 Ch. D. 482; §390.
power which was apparently so in- ^ M'Cartee v. Teller, 2 Paige, 511.
tended in trust settlement. lb.; An- ■• Temples. Hawley, 2 Sandf. Ch. 153.
drews v. Andrews, 15 Ch. D. 228. ^ Levering v. Levering, 3 Md. Ch.
2 Settlement held valid either under 365. See Burr v. Wilson, 18 Tex. 367.
the inherent jurisdiction of chancery 6 Jones v. Butler, 30 Barb. 641.
602
CHAP. II.] ACTS VOID AND VOIDABLE. § 400
ity, her privies in blood may avoid the settlement.^ There are
circumstances under which the infant's confirmation in part of
a settlement will be taken as proof of an intention to confirm
the whole of it.^
Marriage articles are not of themselves binding upon the
infant or her privies ; but they are binding upon the adult
husband.^ Yet if the infant dies under age, her privies can-
not take the benefits of the proposed settlement and of the
inheritance likewise ; they may have the more beneficial, and
that is all*
§ 399 a. Infant's Exercise of a Power. — Where a power is
given to an infant in general terms to direct a sale of the in-
fant's land, this power cannot be exercised during infancy ; for
a power touching his own estate which is thus intended should
be explicitly stated.^ But an infant may exercise a naked
power, unaccompanied with any interest, and requiring no
exercise of discretion.^
CHAPTER II.
ACTS VOID AND VOIDABLE.
§ 400. General Principle of Binding Acts and Contracts, as to
Infants. — One leading principle runs through all cases which
relate to infants. It is that such persons are favorites of the
law, which extends its protection over them so as to preserve
their true interests against their own improvidence, if need be,
1 Levering v. Levering, 3 Md. Ch. As to confirmation, see White v. Cox,
365; Whitingham's Case, 8 Rep. 42; 2 CIi. D. 387.
Maophers. Inf. 465; Brown v. Brown, ^ Brown v. Brown, L. R. 2 Eq. 481 ;
L. R. 2Eq. 481. Whichcote v. Lyle's Ex'rs, 28 Penn.
2 Davies v. Davies, L. R. 9 Eq. 468. St. 73.
As to settling a small fund to the sepa- ■* Brown v. Brown, ib.
rate use of a chancery ward who mar- ^ Hill r. Clark, 4 Lea, 40-5.
ries the day after she comes of age, ® Ib. ; Perry, Trusts, § 52.
see White v. Herrick, L. R. 4 Ch. 315.
603
§ 401 THE DOMESTIC KELATIONS. [PART V.
or the sinister designs of others. This principle is found con-
stantly in chancery practice. We have traced it already in cases
of custody, control, and guardianship, — particularly in such as
come before the American courts. It appears again in matters
of legal emancipation and the minor's right to his own wages.
It generally determines the result of transactions between an
infant and his parent or guardian, where fraud and undue in-
fluence are suspected. It is applied when a guardian presents
his accounts for allowance. We are now to see this same prin-
ciple at work in the general transactions of infants, controlling
and regulating them in great measure, and serving better than
any other to explain the shifting and contradictory decisions of
the English and American courts on this vexed subject.
Infancy is a personal privilege, allowed for protection against
imposition. The general rule of the present day is that an in-
fant shall be bound by no act which is not beneficial to him.^
And most acts and contracts of infants are divided into the two
classes of void and voidable ; a third class — namely, of binding
contracts — still remaining for separate consideration in our
next chapter.
§ 401. The Test as to Void and Voidable; Infant's Transac-
tions. — There is much confusion in the older books on the
subject of void and voidable acts and contracts.^ The keenness
with which such a distinction must always cut is an objection
to its practical use at the present day ; yet writers have sought
to adapt the weapon to the infant's wants. They have searched
for some infallible test between void and voidable. Thus Mr.
Bingham, after a review of the English cases, years ago, con-
cluded that the only safe criterion was, that " acts which are
capable of being legally ratified are voidable only ; and acts
which are incapable of being legally ratified are absolutely
void." ^ But this was only to shift the uncertainty, and replace
one difficulty by another. What acts can be legally ratified and
what cannot ? As Kent properly observes, such a criterion does
not appear to free the question from its embarrassment or afford
1 Smith, Contr. 225; Met. Contr. 38, Infancy and Age (I.), and cases cited
39 ; 2 Kent, Com. 234. in Zoiich v. Parsons, 3 Burr. 1794.
2 See Shep. Touch. 232 ; Bac. Abr. 8 Bing. Inf. 234.
604
CHAP. II.] ACTS VOID AND VOIDABLE. § 401
a clear and definite test.^ Again, a Massachusetts judge of
repute declared, many years ago, that the books agree in one
result ; that whenever the act done majj he for the infant's bene-
fit it shall not be considered void, but he shall have his election,
when he comes of age, to affirm or avoid it ; and this, he adds,
is the only clear and definite proposition which can be extracted
from the authorities.^ Even this rule, though much better, is
found difhcult of application, and has been pronounced unsat-
isfactory in some of the later cases.^ Besides, it is lacking in
comprehensiveness and scope. A more precise and intelligible
test than either was that applied in one of the earlier English
cases by Chief Justice Eyre, and cited since with approval by
Judge Story and Chancellor Kent : * namely, that where the
court can pronounce that the contract is for the benefit of the
infant, as, for instance, for necessaries, then it shall bind him ;
where it can pronounce it to be to his prejudice, it is void ; and
that where it is of an uncertain nature, as to benefit or preju-
dice, it is voidable only, and it is in the election of the infant
to affirm it or not.^ The doctrine seems hardly capable of a
closer analysis ; yet even this statement of the legal test is by
no means clear and conclusive.
The equitable doctrine differs not from the legal as to the
contracts of infants. In general, when a contract is not mani-
festly for the benefit of an infant, he may avoid it, as well in
equity as at law ; and when it can never be for his benefit, it
is utterly void. Infants are favored in all things which are for
their benefit, and are saved from being prejudiced by anything
to their disadvantage. For infants are by law generally treated
1 2 Kent, Com. 234. manifestly for his advantage, are valid
2 Per Parker, C. J., Whitney v. and binding, while those manifestly for
Dutcli, 14 iNIass. 457. See 2 Kent, his hurt are void. Contracts falling
Com. 234 ; Met. Contr. 39. between these classes are voidable.
8 Met. Contr. 40; 1 Am. Lead. Cas. Philpot v. Bingham, 55 Ala. 4.35.
4th ed. 242. Parke, B., in Williams v. Moor, 11 M.
4 See United States c. Bainbridge, & W. 256, 264, alludes to the uncertain
1 Mason, 82; 2 Kent, Com. 2o6 ; Mc- sense of the word "void" The word
Gan )'. Marshall, 7 Humph. 121. " void" may mean incapable of being
* Keane v. Boycott, 2 H. Bl. 511. enforced ; and the plea of infancy is a
And see Green ?•. Wilding, 59 Iowa, bar to any demand on one contract as
679. The rule is that contracts of well as the other. But " void " may
an infant, caused by his necessities or mean, too, incapable of being ratified.
60
o
§ 402 THE DOMESTIC RELATIONS. [PART V.
as having no capacity to bind themselves, from the want of
sufiicient reason and discernment of understanding. In regard
to their acts, some are voidable and some are void ; so in regard
to their contracts, some are voidable and some are void.^ The
liberality and freedom exercised in common-law courts at the
present day, in shaping general doctrines with reference to in-
fants and their contracts, must be ascribed in a large degree to
the influence of the equity tribunals and their decisions. " In
short," as Judge Story observes, " the disabilities of an infant
are intended by law for his own protection, and not for the
protection of the rights of third persons ; and his acts may
therefore, in many cases, be binding upon him, although the
persons, under whose guardianship, natural or positive, he then
is, do not assent to them." ^ Where the contract is voidable,
not void, the infant has his election to avoid it either during his
minority or within a reasonable time after he attains majority ;
otherwise, it is taken to have been confirmed, and so binds him
forever.
§ 402. Privilege of avoiding is Personal to Infant ; Rule as to
Third Persons, &c. — The privilege of avoiding his acts or con-
tracts, where these are voidable, is a privilege personal to the
infant, which no one can exercise for him, except his heirs and
legal representatives.^ Hence the other contracting party re-
mains bound, though the infant be not ; for being an indulgence
which the law allows infants, to secure them from the fraud
and imposition of others, it can only be intended for their
benefit, and is not to be extended to persons of the years of
discretion, who are presumed to act with sufficient caution and
security.* And were it otherwise, this privilege, instead of
being an advantage to the infant, would in many cases turn
out greatly to his detriment.
1 1 Story, Eq. Juris. §§ 240, 241 ; Hartness v. Thompson, 5 Johns. 160 ;
1 Fonbl. Eq. b. 1, ch. 2, § 4. And see Brown r. Caldwell, 10 S. & R. 114.
Turpin v. Tiirpin, 16 Ohio St. 270. A contract of bailment made by the
- United States v. Bainbridge, 1 bailee witli the agent of an undisclosed
Mason, 83. principal, who proves a minor, can-
3 //). ; Keane v. Boycott, 2 H. Bl. not be rescinded by the bailee on the
511 ; Met. Contr. 38 ; Smith, Contr. 2.^1. ground of the bailor's minority, without
* Bac. Abr. Inf. I. 4 ; 1 Pars. Contr. delivering the goods to him. Stiff v.
275; Johnson v. Rockwell, 12 Ind. 76 ; Keith, 143 Mass. 224.
606
CHAP. II.] ACTS VOID AND VOIDABLE, § 402
Thus, where a person of full age promises to marry a minor
and afterwards breaks off the match, he may be sued by the
minor upon this contract; though he would have had no cor-
responding remedy against the minor for breach of promise.^
So a third person, not a party to the contract, cannot take
advantage of the infancy of the parties. Thus, in an action for
seducing a servant from his master's service, the defendant can-
not justify on the ground that the servant was an infant, and
therefore not by law bound to perform his contract for service
made with the master.^ On the same principle (connected with
others), the acceptor of a bill of exchange, or the maker of a
promissory note, cannot resist payment in a suit by an indorsee,
though the indorser be an infant.^ Nor can the purcliaser at a
sale under an execution set up infancy to defeat prior transac-
tions of the judgment debtor.* Nor can the vendor avoid the
infant's purchase on such a ground.^ Nor is a stranger per-
mitted to impeach the conveyance of an infant.^ Nor can an
insurance company which insures the property of an infant re-
pudiate its liability on the ground that the infant is not bound.''
So, too, it is the settled doctrine that infancy does not protect
the indorsers or sureties of an infant ; or those who have jointly
entered into his voidable undertakings. They, if of full age,
may be held liable, though the infant himself should escape re-
sponsibility.^ Furthermore, the copartners of an infant cannot
1 Holt V. Ward, 2 Stra. 9.37 ; Harvey consideration of the conveyance of
V. Ashley, 3 Atk. 610 ; Hunt v. Peake, land, to pay certain debts of the
5 Cow. 475 ; Willard v. Stone, 7 Cow. grantor, and afterwards does in fact
22 ; Warwick v. Cooper, 5 Sneed, 659 ; pay them, it is held that the agree-
Cannon v. Alsbury, I Marsh. 78; Rush ment constitutes a valuable considera-
V. Wick, 31 Ohio St. 521. tion for such conveyance, and will
■^ Keane v. Boycott, 2 H. Bl. 511. support it against the grantor's credi-
3 Met. Contr. 39 ; Taylor v. Croker, tors. Washband v. Washband, 27
4 Esp. 187 ; Niglitingale v. Withington, Conn. 424.
15 Mass. 273 ; Hardy v. Waters, 38 Me. ^ Dominick v. Michael, 4 Sandf.
450; Frazier v. Massey, 14 Ind. 382. 374.
* Alsworth V. Cordtz, 31 Miss. 32. "^ Monaghan v. Fire Ins. Co., 53
8 Oliver v. Houdlet, 13 Mass. 237. Mich. 238.
A sale to an infant is a valid trans- ^ Motteaux v. St. Aubin, 2 Black,
fer of the property out of the ven- 1133; Jaffraj' v. Fretain, 5 Esp. 47;
dor, even though the infant be not Hartness v. Thompson, 5 Johns. 160;
bound afterwards to pay the stipu- Parker v. Baker, 1 Clarke Ch. (N. Y.)
lated price. Crymes v. Day, 1 Bail. 1.36 ; Taylor v. Dansby, 42 Mich. 82.
320. Where a minor agrees, as the
607
§ 403 THE DOMESTIC RELATIONS. [PART V.
use his right of avoidance for their own benefit.^ In fine, the
defence of infancy is for the benefit and protection of the infant ;
and other persons may not set it up for their own benefit.^
But third persons should be allowed to protect themselves
against undue liabilities on an infant's behalf. Thus, an
officer selling property at public auction is not bound to ac-
cept the bid of an infant^ And although infancy is a per-
sonal privilege, yet the administrator of the estate of an infant
may avail himself of the infancy of his intestate, to avoid or
uphold a transaction to which the latter was a party during
his life, and which remained voidable at his death.* And as
a rule the right of avoidance, with due limitations of time and
circumstances, passes to privies in blood entitled to the estate.^
§ 403. Modern Tendency regards Infant's Acts and Contracts
as Voidable rather than Void ; Instances discussed. — The strong
tendency of the modern cases is to regard all contracts and acts
of infants as voidable only ; and thus almost to obliterate the
ancient distinction of void and voidable contracts altogether.^
And the dicta are of frequent occurrence at the present day
that deeds and contracts of an infant are not absolutely void,
but voidable only, unless manifestly to the infant's prejudice ;
and that beneficial contracts are voidable only at most." This
makes all the stronger the position already taken, that an adult
party cannot disaffirm the transaction.
Yet there are cases where a contract may still be pronounced
absolutely void. In Rcgina v. Lord, an English case, the ques-
1 Brown v. Hartford Ins. Co., 117 r. Libbert, 34 Ind. 163. The principle
Mass. 479; Winchester v. Thayer, 129 of tlie text applies to marriage articles.
Mass. 129. See supra, § 399. Devisees under a
2 Beardsley v. Hotchkiss, 96 N. Y. will, as strangers privy in estate only,
201, a case of marriage settlement. cannot avoid the infant's contract.
3 Kinney r. Showdy, 1 Hill, 544. Bozeman v. Browning, 31 Ark. 364.
4 Counts V. Bates, Harp. 464 ; Par- « See Met. Contr. 40 ; Shaw, C. J.,
sons V. Hill, 8 Mo. 135; Turpin v. Tur- in Reed v. Batchelder, 1 Met. 559.
pin, 16 Ohio St. 270. " See Ridgely v. Crandall, 4 Md. 435;
5 Doniinickr. Michael, 4 Sandf. 374; N. H. M. Fire Ins. Co. v. Noyes, 32
Beeler v. Bullett, 3 A. K. Marsh. 281 ; N. H.345 ; Jenkins v. Jenkins, 12 Iowa,
Nelson y. Eaton, 1 Redf. (N. Y. Sur.) 195; Scott v. Buchanan, 11 Humph.
498 ; Jefford v. Ringgold, 6 Ala. 544 ; 468 ; Babcock v. Doe, 8 Ind. 110 ; Irvine
Illinois Land Co. ?•. Bonner. 75 111.315; v. Irvine, 9 Wall. 617; Robinson v.
Veal ('. Fortson, 57 Tex. 482 ; Sharp v. Weeks, 56 Me. 102.
Robertson, 70 Ala. 343. And see Nolte
608
CFAP. II.] ACTS VOID AND VOIDABLE. § 404
tion arose on the conviction of a servant for unlav^fully absent-
ing himself from his master's employment. Denman, C. J., in
delivering the judgment of the court, observed : " Among many
objections, one appears to us clearly fatal. He was an infant
at the time of entering into the agreement which authorizes the
master to stop his wages when the steam-engine is stopped
working for any cause. An agreement to serve for wages may
be for the infant's benefit; but an agreement which compels
him to serve at all times during the term, but leaves the master
free to stop his work and his wages whenever he chooses to do
so, cannot be considered as beneficial to the servant. It is
inequitable and wholly void." ^
§ 404. Same Subject ; Bonds, Notes, &c. — So an infant's
bond with penalty and for the payment of interest is held to
be void on the ground that it cannot possibly be for his benefit.^
And a bond executed by a minor as surety is void.^ So is
declared to be a mortgage of a minor's property to secure her
husband's debt.* The infant's promissory note as surety is
void.^ And so is said to be a release by a minor to his guar-
dian, which affords the latter more protection than a receipt.^
But in Vermont it was decided that there is no general rule ex-
empting an infant from paying interest as necessarily injurious
to •him.''' An infant's release of his legacy or distributive share
is held to be void in Tennessee.^ In such cases an infant is
called upon to become the party to some undertaking sub-
stantially for the benefit of another, and not for his own profit.
1 Qimre whether, notwithstanding 217 ; Cronise v. Clark, 4 Md. Ch. 403.
the dictum of Denman, C. J., in the text, See Colcock v. Ferguson, 3 Desaus.
more was properly meant than that 482.
this contract was voidable by the in- ^ Maples y. Wightman, 4 Conn. 376 ;
fant. The fact that it was voidable, Curtin r. Patton, 11 S. &R. 305; Night-
and therefore avoided by the infant, ingale v. Withington, 15 Mass. 272.
was enough for the purposes of the An assignment by way of equitable
decision. Regina )'. Lord, 12 Q. B. mortgage to secure an infant who be-
757. Cf. Leslie v. Fitzpatrick, 3 Q. B. comes surety becomes inoperative
D. 229. when the condition of the bond is per-
2 Baylis v. Dineley, 3 M. & S. 477 ; formed. 23 W. Va. 100.
Fisher v. Mowbray, 8 East, 330. ^ Fridge v. State, 3 Gill & Johns.
3 Allen V. Minor, 2 Call, 70 ; Met. 115.
Contr. 40 ; Carnahan v. AUderdice, 4 ^ Bradley v. Pratt. 23 Vt. 378.
Barring. 99. ^ Langford v. Frey, 8 Humph. 443.
* Chandler v. McKinney, 6 Mich.
39 609
§ 404 THE DOMESTIC RELATIONS. [PART V.
The construction of a local statute will in some cases determine
that an instrument is void, not voidable.^ An infant's stock
speculations on margin have been declared in the nature of a
wager contract and void.^ And an assignment by the infant
in trust for the benefit of creditors is held in New York void
and not voidable.^
Now it is admitted that the decisions are frequently con-
tradictory and uncertain ; yet these cases of void contracts
almost invariably proceed upon the doctrine that the infant's
act was positively prejudicial to his interest ; and certainly, if
any contract can be so pronounced on mere inspection, it is a
contract whereby an infant becomes bound upon another's debt.
The technical form of the transaction is of less importance.
There are many cases where an infant's bonds, mortgages, and
promissory notes have been held not void, but under the cir-
cumstances of the case voidable only, as where given in ordi-
nary transactions which may possibly prove beneficial with
relation to the minor's property.* And reference to the latter
cases will show that the modern rule is broadly announced in
many States, that an infant's promissory note, his statutory
recognizance, and his mortgage, whether of real estate or
chattels, are all voidable, rather than void in general.^ Even
1 Hoyt V. Swar, 53 111. 134, 559 ; Patclikin v. Cromack, 13 Vt. 330
2 Ruchizky v. De Haven, 97 Penn. State v. Plaisted, 43 N. H. 413, and cases
St. 202. cited ; Palmer v. Miller, 25 Barb. 399
3 Yates V. Lyon, 61 Barb. 205. Mustard v. Wohlford, 16 Gratt. 329,
* State V. Plaisted, 43 N. H. 413; Whether infant's own statutory recog'
Richardson v. Boright, 9 Vt. 368 ; nizance in a criminal proceeding may
Palmer v. Miller, 25 Barb. 399 ; Reed not be more than voidable, (. e. binding,
V. Batchelder, 1 Met. 659 ; Patchkin v. see next chapter ; State v. Weather-
Cromack, 13 Vt. 330; Conroe r. Bird- wax, 12 Kan. 463; Losey v Bond, 94
sail, 1 Johns. Cas. 127 ; Everson v. Car- Ind. 67 ; 21 Neb. 559; Catlin v. Ilad-
penter, 17 Wend. 419; Monumental, dox, 49 Conn. 492; Hoyt i;. Wilkinson,
&c. Association y. Herman, 83 Md. 128; 57 Vt. 404. No recovery can be had
Dubose V. Wlieddon, 4 M'Cord, 221 ; on a note given by an infant for what
Little V. Duncan, 9 Rich. 55. See he does not need, — e. r/. a buggy or
Adams L-. Ross, 1 Vroom (N. J.), 505; horse, — even by a to?!(7^/7c?e holder ; the
Kempson v. Ashall, L. R. 10 Ch. 15; usual protection of a negotiable instru-
Garin v. Burton, 8 Ind. 69. But see ment taken when not overdue will not
M'Minn v. Richmond, 6 Yerg. 9 ; Beeler avail. Howard ;). Simpkins, 70 Ga. 322.
V. Young, 1 Bibb, 519. See, as to assignee of an infant's mort-
6 See e. g. Goodsell v. Myers, 3 gage, 20 Neb. 185.
Wend. 479 ; Reed i-. Batchelder, 1 Met.
610
CHAP. II.] ACTS VOID AND VOIDABLE. § 405
an infant's contract as surety or indorser has lately been pro-
nounced voidable and not void in numerous instances.^ This
we conceive to be the reasonable view of the subject ; the rule
of voidable, rather than void, applying wherever the trans-
action was not from its very nature such as could be pronounced
prejudicial to the infant's interest.
§ 405. Same Subject ; Deeds, «S:c. Rule of Zouch v. Parsons.
— It is true, however, that the decisions are not invariably
placed by the court upon this ground. The rule of Perkins,
which was adopted by the Court of King's Bench in the cele-
brated case of Zoiicli v. Parsons, is that all deeds of an infant
which do not take effect by delivery of his hand are merely
void, and all such as do take effect by delivery of his hand are
voidable. In the one case an interest is conveyed, in another a
mere power.^ This case has come down as authority for all
future times ; and the rule has frequently been cited with
approval, in support of mortgages, bonds, and deeds ; but we
question the propriety of its modern application as a principle,
however useful in describing an incident. So manual delivery,
it was said, must accompany the sale of an infant's personal
property to render it valid.^ The real reason of such a rule
might have been that solemn instruments and transactions of
grave importance ought not to be lightly entered upon ; but it
is clear that ere the present day much of the ancient veneration
for parchment deeds under seal has disappeared, while the
tendency is to place real and personal estate transactions on
much the same footing, distinguishing rather by the value than
the nature of the property. We admit, however, that the com-
mon law draws a strong line of demarcation between real and
personal property ; so that title transfer of the former kind
requires far more positive formality than that of the latter.
Now to continue. It is held that an infant may make a
voidable purchase of land ; for, says Lord Coke, striking the
1 Owen I'. Long, 112 Mass. 403; 3 Burr. 1804; Bool v. Mix, 17 Wend.
Hardy v. Waters, 38 Me. 450; Harner 131 ; 2 Kent, Com. 236, 237, n. ; State
V. Dipple, 31 Ohio St. 72; Fetrow v. v. Plaisted, 43 N. H. 413; Conroe v.
Wiseman, 40 Ind. 148; Williams v. Birdsall, IJohns. Cas. 127.
Harrison, 11 S. C. 412. 3 Fonda v. Van Home, 15 Wend.
2 Perkins, § 12 ; Zouch v. Parsons, 631.
611
§ 405 THE DOMESTIC RELATIONS. [PART V.
legal principle with wonderful clearness for that day, " it is in-
tended for his benefit, and at his full age he may either agree
thereunto and perfect it, or, without any cause to be alleged,
waive or disagree to the purchase." ^ For this reason, rather
than the technical one just referred to, it may be said in general
that the conveyance of land by a minor is also voidable and
not void ; ^ though here again the courts have been prone to
cite the rule of Perkins. But the decided cases usually presume
that a valuable consideration has passed to the infant, or at
least that there is nothing prima facie prejudicial to him. Lord
Chancellor Sugden, in 1842, in Allen v. Allen, took occasion to
review Lord Mansfield's decision in Zouch v. Parsons, and com-
mended it as sound law in respect that a deed which takes
effect by delivery, and is executed by an infant, is voidable
only ; though he intimated that his own decision might equally
well be referred to the benefit arising to the infant from the
deed; which, indeed, was one of the grounds on which Lord
Mansfield had decided that celebrated case.^ An infant's con-
veyance of land by way of gift or without consideration is held
to be void, because obviously prejudicial to his interests.^
So leases to infants are not absolutely void ; but voidable
only.^ And an exchange of property made by an infant is
1 Co. Litt. 26 ; Met.Contr. 40 ; Bac. ner, 75 111. 315 ; Dixon v. Merritt, 21
Abr. Inf. 6 ; Ferguson v. Bell, 17 Mo. Minn. 196; Davis v. Dudley, 70 Me,
347. And see Spencer v. Carr, 45 236 ; Weaver v. Carpenter, 42 Iowa,
N. Y. 406 ; also Hook v. Donaldson, 9 343 ; Schaffer v. Lavretta, 57 Ala. 14
Lea, 56. Where a deed to an infant Nathans v. Arkwright, 66 Ga. 179; 83
was destroyed by the father before it Ind. 382 ; 60 Miss. 420 ; 64 Miss. 8
was recorded, and a new deed was exe- Dawson v. Helmes, 30 Minn. 107
cuted by the same grantor to the father, Bingham v. Barley, 65 Tex. 281 ; Bag
it was held that the destruction of the ley v. Fletcher, 44 Ark. 153 ; Birch v
deed did not, even with the assent of Linton, 78 Va. 584 ; Haynes v. Ben
the infant, divest his title, and that nett, 53 Mich. 15. And so as to infant
equity would restore him to his for- wife. Scranton v. Stewart, 52 Ind.
mer position. Brendle v. Herron, 88 93 Ind. 423. Or infant husband. Bar
N. C. 383. ker v. Wilson, 4 Heisk. 268 ; Yourse v
' Kendall v. Lawrence, 22 Pick. Norcross, 12 Mo. 549.
540; Gillet v. Stanley, 1 Hill, 121 ; 3 Allen y. Allen, 3 Dru. & War. 340,
Bool V. Mix, 17 Wend. 119; Wheaton See Co. Litt. 516, n. by Hargrave.
V. East, 5 Yerg. 41 ; Phillips v. Green, * Swafford v. Ferguson, 3 Lea, 292
5 Monr. 344 ; Eagle Fire Ins. Co. v. Cf. Slaughter v. Cunningham, 24 Ala,
Lent, 6 Paige, 635 ; Allen v. Poole, 64 260.
Miss. 323 ; Illinois Land Co. v. Bon- ^ Zouch i;. Parsons, 3 Burr. 1806 ;
612
CHAP. II.] ACTS VOID AND VOIDABLE. § 406
voidable.^ And it is held that the infant's bond for title to
real estate or his parol contract to convey is voidable and not
void.2
§ 406. Same Subject; Letters of Attorney; Cognovits, &c. —
So a power of attorney to authorize another to receive seisin of
land for an infant, in order to complete his title to an estate
conveyed to him by feoffment, is voidable only ; it being an
authority to do an act for his probable benefit.^
But letters of attorney from an infant conveying no present
interest are held to be absolutely null. This point was dis-
cussed in Zouch v. Parsons, and on the distinction of Perkins's
rule, it was maintained that writings " which take effect " can-
not include letters of attorney, or deeds which delegate a mere
power and convey no interest. Whatever might be thought
of this explanation the conclusion follows : " that powers of
attorney are an exception to the general rule, that the deeds
of infants are only voidable ; and a power to receive seisin is
an exception to that. The end of the privilege is to protect
infants ; and to that object all the rules and their exceptions
must be directed." * And the English courts have uniformly
held the infant's warrant of attorney void, even though exe-
cuted jointly with others.^ In this country there are decisions
in some States to the same effect ; ^ in others, again, the rule
is deemed somewhat doubtful.''
An infant's power of attorney to another to sell his lands
is deemed so manifestly unbeneficial on the face of it as to be
Hudson V. Jones, 3 Mod. 310 ; Taylor, Ashlin v. Langton, 4 Moore & S. 719,
Landlord & Tenant, and cases cited ; and cases cited.
Griffith V. Schwenderman, 27 Mo. 6 Lawrence n. M'Arter. 10 Ohio, 37 ;
41^- Waples V. Hastings, 3 Harring. 403;
1 Co. Litt. 51 6; Williams y. Brown, Bennett v. Davis, 6 Cow. 393 ; Semple
34 Me. 594. „. Morrison, 7 Monr. 298 ; Pyle v. Cra-
2 Weaver v. Jones, 24 Ala. 420; vens, 4 Litt. 17; Knox v. Flack, 22
Yeager r. Knight, 60 Miss. 7.30. Penn. St. 337 ; Wainwright v. Wilkin-
3 Met. Contr. 41; 1 Roll. Abr. 730; son, 62 Md 146.
Zouch V. Parsons, supra. 7 pjekler v. State, 18 Ind. 26G. But
* Per Lord Mansfield, in Zouch u. see Trueblood ;;. Trueblood, 8 Ind. 195.
Parsons, 3 Burr. 1804. And see Cum- See Wliitney c. Dutch, 14 Mass. 457;
mings V. Powell, 8 Tex. 88. Met. Contr. 41 ; Cummings v. Powell,
5 Saunderson v. Marr, 1 H. Bl. 75 ; 8 Tex. 88 ; 1 Am. Lead. Cas. 4th ed.
242 et seq.
613
§ 406 THE DOMESTIC RELATIONS. [PART V.
void, and a sale made under such a power does not confer
even an inchoate title.^ But a power of attorney from an
infant to sell a note is lately held voidable, not void, in Cali-
fornia.2 In Massachusetts an instrument of assignment, not
under seal, which appoints the assignee attorney to receive the
fund to his own use, is not void.^ And in Maine the act of
an infant in transferring a negotiable note, though his name
be written by another under parol authority, is voidable only.*
The good sense of the rule seems to be, as an American writer
observes, that an authority delegated by an infant for a pur-
pose which may be beneficial to him, or which the court
cannot pronounce to be to his prejudice, should be considered
as rendering the contract made, or act done by virtue of it,
as voidable only, in the same manner as his personal acts and
contracts are considered.^ And, we may add, the English and
most of the American decisions do not seem to carry the rule
beyond cases of the technical " warrant of attorney," to appear
in court and bind the infant, as in confessing judgment, except
it be with reference to an infant's land, which power stands
upon a strong footing of objection. What we call " powers of
attorney " are less likely than the warrant of attorney to be
to the infant's prejudice ; though we may well assume that
whatever an infant cannot do he cannot authorize another to
do for him, so as to make the transaction more binding.
An infant cannot bind himself by cognovit. "We come
to this conclusion," said Lord Abinger, " on three grounds,
each of which is fatal to the validity of the cognovit. First,
it is bad because it falls within the principle which prevents
an infant from appointing and appearing in court by attorney ;
he can appear by guardian only. Secondly, by this means the
minor is made to state an account, which the law will not allow
him to do, so as to bind himself ; if an action be brought
against him, the jury are to determine the reasonableness of
1 Philpot V Bingham, 55 Ala. 4.35. And see Kingman «. Perkins, 105 Mass.
Cf. Weaver i: Carpenter, 42 Iowa, 343; 111.
Armitage v. Widoe, 36 Mich. 124. * Hardy v. Waters, 38 Me. 450.
2 Hastings v. Dollarhide, 24 Cal. ^ Met. Contr. 42. And see Powell
195. V. Gott, 13 Mo. 458.
3 McCarty v. Murray, 3 Gray, 578.
614
CHAP. II.] ACTS VOID AND VOIDABLE. § 407
the demand made. Thirdly, the general principle of law is,
that a minor is not to be allowed to do anything to prejudice
himself or his rights." ^
§ 407. Same Subject; Miscellaneous Acts and Contracts
Voidable and not Void. — An infant may in some States avoid
his usurious contracts, and recover the money so lent under the
count for money had and received.^ But the policy of usury is
becoming abandoned in many parts of the country.
An infant may avoid his release of damages for an injury
or an award upon a submission entered into by him. But if,
upon trial, the jury shall find such damages to have been
satisfied by an adequate compensation, the infant shall recover
nominal damages only.^ The rule is general that an infant
is not bound by his agreement to refer a dispute to arbitra-
tion ; nor by an award, even in his own favor ; though this is
usually voidable only.*
Among the acts of the infants which are in the later cases
regarded as voidable and not void (nor of course binding) are
the following : His appeal from a justice's decision.^ Judg-
ments against him.^ His covenant to carry and deliver money.'^
His chattel mortgage.^ His agreement to convey.^ His written
obligation for the rent of land.^^ His agreement with others for
the compensation of counsel retained in a lawsuit for their
common benefit.^^ And, in short, his deeds and instruments
1 Oliver V. Woodroffe, 4 M. & W. Ahronbeak, 54 Tex. 5,35 ; Walkenhorst
653(183U). But the second of these v. Lewis, 24 Kan. 420; England v.
grounds is not now tenable. See Wil- Garner, 90 N. C. 197 ; 21 Neb. 680 ; 97
liams V. Moor, 11 M. & W. 256. N. C. 21. Thus a judgment of parti-
2 Millard v. Hewlett, 19 Wend. 301. tion is voidable as against minors who
3 Baker v. Lovett, 6 Mass. 78. A were not duly represented. 94 N. C.
mechanic's lien, where incident only 732 ; Montgomery v. Carlton, 66 Tex.
under the local statute, to a legal lia- 361. But the judgment is not to be
bility to pay, cannot attach against an impeached in a collateral suit. lb.
infant's land. 47 N. J. L. 340. See c. 6, post.
* Watson on Awards, ch. 3, § 1 ; ^ West v. Penny, 16 Ala. 186.
Smith, Contr. 280; Brittony. Williams, 8 Miller v. Smith, 26 Minn. 248;
6 Munf. 453 ; Barnaby r. Barnaby, 1 Corey v. Burton, 32 Mich. 30; 49 N. Y.
I'ick. 221. See Guardian and Ward, Super. .34.
supra. 9 Carrell i-. Potter, 23 Mich. 377.
& Robbins v. Cutler, 6 Post. 173. ^ Flexner v. Dickerson, 72 Ala.
6 Trapnall v. State Bank, 18 Ark. 318.
53 ; Kemp v. Cook, 18 Md. 180 ; Bickel " Dillon v. Bowles, 77 Mo. 603. So
V. Erskine, 43 Iowa, 213; Wheeler r. as to an infant's contract creating an
615
§ 407 THE DOMESTIC RELATIONS. [PART V.
under seal, with perhaps the exception of powers of attorney ;
though it is otherwise, perhaps, if the instrument should mani-
festly appear on the face of it to be fraudulent or otherwise
to the prejudice of the infant ; " and this," says Judge Story,
" upon the nature and solemnity, as well as the operation of
the instrument." ^ In Massachusetts a contract of charter
to an infant, though by parol, is voidable and not void.^ So,
too, an infant's promise to pay money borrowed on joint account
with another.^ And in various instances a family arrange-
ment as to settlement of an estate in which the minor is
interested.^ In so many cases of the character discussed in
this chapter the infant at the proper time is presented as seek-
ing and being permitted to set aside the transaction, that the
voidable rather than void nature of the transaction is assumed,
and the decision is more to the point that, void or voidable, it
does not under the circumstances bind him.
It has been repeatedly decided in England that where an
infant becomes the holder of shares by his own contract and
subscription he is prima facie liable to pay calls or assess-
ments ; but he may repudiate that contract and subscription ;
and if he does so while an infant, although he may on arriving
at full age affirm his repudiation, or receive the profits, it is
for those who insist on this liability to make out the facts.^
A minor's contract for stock is doubtless voidable at least in
this country,^ or if purely speculative may be even void."
easement in his land. McCarthy v. pecuniary obligation. Armitage v.
Nicrosi, 72 Ala. 332. So as to an in- Widoe, 36 Mich. 124.
fant's agreement to accept a considera- * Turpin v. Turpin, 16 Ohio St. 270 ;
tion in lieu of dower. Drew v. Drew, Jones v. Jones, 46 Iowa, 466.
40 N: J. Eq. 458. And as to his assign- ° Smith, Contr. 285 ; Newry & Ennis-
ment of wages, where no parental right killen R. R. Co. v. Coombe, 3 Exch.
intervened, see O'Neil v. Chicago R., 665; London & Northwestern R. R. Co.
33 Minn. 489. v. M'Michael, 5 Exch. 114. See, as to
1 Per Story, J., Tucker v. More- the liability of a stock-jobber in such
land, 10 Pet. 71 ; 2 Kent, Com. 2.36, cases, Brown v. Black, L. R. 8 Cli.
11th ed., 7!., and cases cited. And see 9.39; Merry v. Nickalls, L. R. 7 Ch.
Regina v. Lord, 12 Q. B. 757. 733.
2 Thompson v. Hamilton, 12 Pick. '' Indianapolis Chair Co. v. Wilcox,
425. 59 Ind. 429.
3 Kennedy v. Doyle, 10 Allen, 161. '' Ruchizky r. De Haven, 97 Penn.
So, too, a purported gift to an infant St. 202 Cf . Crummey v. Mills, 40
of a contract of purchase involving Hun, 370.
616
CHAP, II.] ACTS VOID AND VOIDABLE. § 408
An absolute gift of articles of personal property made by an
infant can be revoked or avoided by him.^ So may his sale of
personal property.^ So may his assignment.^ And the executed
contract of an infant follows the same rule as an executory one ;
he may rescind the one as well as the other ; the more so, where
the other party can be put substantially in sialic quo^ But if
before rescission the adult make a hona fide sale of property pur-
chased of the minor, trover will not lie against him.^ And it is
held, on the ground of an executed agency, that money belong-
ing to an infant soldier and received from him by his brother,
with authority to use it for the support of their needy parents,
and so used by the brother, cannot be recovered by the infant
upon reaching majority.^ But, in general, an infant soldier's
gift of his bounty and pay, even to his own father, is treated as
voidable and revocable.'''
§ 408. Infant's Trading and Partnership Contracts. — The rule
is a general one that an infant cannot trade, and consequently
cannot bind himself by any contract having relation to trade.
" We know, by constant experience," says Mr. Smith, " that in-
fants do, in fact, trade, and trade sometimes very extensively.
However, there exists a conclusive presumption of law that no
infant under the age of twenty-one has discretion enough for
that purpose." ^ In Dilk v. Keighlcy, the infant was a glazier,
and the person who sued him sought to make out that the
goods furnished were in the nature of necessaries, to enable the
infant to earn a livelihood ; but this plea did not avail.^ And
an infant, rescinding a trading contract with another, was al-
lowed to recover back, in an action for money had and received,
a sum which he had paid towards the purchase of a share in
the defendant's trade, if without consideration and he had
1 Person v. Chase, 37 Vt. 647 ; Ox- 5 Carr v. Clough, 6 Post. 280 ; Riley
ley V. Tryon, 25 Iowa, 95. So, too. his v. Mallory, .3-3 Conn. 201.
deed of gift to a trustee. Slaughter v. « Welch v. Welch, 103 Mass. 562.
Cunningham, 24 Ala. 260. ■? Holt v. Holt, 59 Me. 464; supra,
2 Towie V. Dresser, 73 Me. 252. § 252.
3 City Savings Bank v. Whittle, 63 8 Smith, Contr. 278. See Whywall
N. H. 587. V. Champion, 2 Stra. 1083 ; Dilk v.
* Hill V. Anderson, 5 S. & M. 216; Keighley, 2 Esp. 480.
Kobinson v. Weeks, 56 Me. 102. See 9 Dilk v. Keighley, 2 Esp. 480.
94 N. C. 355.
617
§ 408 THE DOMESTIC RELATIONS. [PART V.
actually derived no benefit or profit from the business.^ So,
too, as an infant cannot trade, he cannot become a bankrupt,
and a fiat against him is void.^
Yet, even in trading contracts, it must not be forgotten that
the current of modern decisions is to make the transactions of
an infant voidable and not void. The English case of Goode v.
Harrison is exactly in point ; where a person was held liable
for goods supplied him as one of a partnership, on the ground
that the contract was voidable, not void, and that when the
infant became of age he had substantially ratified his former
act. " It is clear," says Justice Bayley, " that an infant may be
in partnership. It is true that he is not liable for contracts
entered into during his infancy ; but still he may be a partner.
If he is, in point of fact, a partner during his infancy, he may,
when he comes of age, elect whether he will continue that part-
nership or not. If he continue the partnership, he will then be
liable as a partner." ^ Nor is another principle to be lost sight
of in trading contracts ; namely, that fraudulent representations
and acts, though made by an infant, may sometimes make his
contract binding upon him, or at least afford a means of hold-
ing him answerable for the transaction ; but of this hereafter.
In this country it is likewise admitted that, in point of fact,
infants do sometimes trade ; ^ but that, nevertheless, their trad-
ing contracts do not absolutely bind them, being voidable at
their option and not absolutely void.^ Aside from his affirma-
tion on reaching majority, however, an infant partner is not
liable individually for the firm debts beyond what he put into
the business.^ An infant's partnership agreement, too, is not
void, but voidable.^ And it is held in Massachusetts, that an
1 Corpe V. Overton, 10 Bing. 252; Kitchen r. Lee, 11 Paige, 107; Seller
Holmes v. Blogg, 8 Taunt. 508. See v. Marchant, 30 Iowa, 850. An infant
next chapter. partner sued for goods sold the firm
2 Smith, Contr. 282, and cases cited ; may plead infancy. 35 Minn. 488.
Belton i;. Hodges, 9 Bing. 365; Rex i?. ^ Mason v. Wright, 13 Met. 306;
Wilson, 5 Q. B. D. 28 ; 18 Ch. D. 109. Kinnen v. Maxwell, 66 N. C. 45.
And see Winchester v. Thayer, 129 ^ Bush v. Linthicum, 59 Md. 344.
Mass. 129. But the firm may be dissolved by pro-
3 5 B. & Aid. 147. See Smith, Contr. ceedings in equity, and in such bill the
283. infant is not liable for costs, lb.
* Whitney v. Dutch, 14 Mass. 457 ; '' Jaques v. Sax, 89 Iowa, 367 ; Dun-
Houston V. Cooper, Penning. 865 ; ton v. Brown, 31 Mich. 182. That the
618
CHAP. II.] ACTS VOID AND VOIDABLE. § 409
infant cannot be compelled to pay for grain furnished for
horses owned by a firm of which he was a member, though the
horses were employed in the usual business of the firm, and
though he was emancipated by his father. But we understand
the principle of that decision to accord with the English doc-
trine ; which doctrine does not appear too far extended in
South Carohna, where it was once expressly decided that a
person's express or implied ratification of the partnership upon
reaching majority makes him liable for a debt of the firm con-
tracted during his infancy, although he was ignorant of the
existence of the debt at the time of such ratification, and had,
on being informed of it, refused to pay for it.^ For the princi-
ple thus indicated is, that to affirm a partnership contract on
reaching majority, and continuing to receive its benefits, is to
afl&rm it with its usual inseparable incidents. Certainly, the
infant member of a firm should not be permitted to derive
undue advantages over his partner.^
§ 409. Void and Voidable Acts Contrasted; "When may Void-
able Acts be affirmed or disaffirmed ? — What, then, is the differ-
ence between the void and the voidable contracts of an infant ?
Simply this : that the void contract is a mere nullity, of which
any one can take advantage, and which is, in legal estimation,
incapable of being ratified ; while a voidable contract becomes
at the option of the infant, though not otherwise, binding
upon himself and all concerned with him.^ Acts or circum-
stances, then, which amount to a legal ratification, serve to
make the voidable contract of an infant completely binding
and perpetually effectual ; and this period of ratification is to
be usually referred to the date when the disability of infancy
ceases, and he becomes of full age, — though not always. What
amounts to a legal ratification, under such circumstances, we
minor had an interest in profits, but see Minock v. Shortridge, 21 Mich,
had not put in capital, does not oper- 304, where an infant refused, on major-
ate to discharge liim from liability, ity, after the goods had been disposed
Jaques i'. Sax, 39 Iowa, 367. See, as to of and the partnership closed, to pay
pleadings, Kine v. Barbour, 70 Ind. the partnership note, though recogniz-
35. ing the partnership in some other
1 Miller v. Sims, 2 Hill (S. C), 479. respects.
2 See Kitchens. Lee, 11 Paige, 107; ^ See Met. Contr. 41; Story, Eq.
Dunton v. Brown, 31 Mich. 182. But Juris. § 241.
619
§ 409 THE DOMESTIC RELATIONS. [PART V.
shall show in a subsequent chapter. On the other hand, acts
or circumstances which at the proper time amount to disaffirm-
ance will render the infant's voidable contract of no effect.
An infant's voidable conveyance of land, which is a solemn
instrument, and perhaps his deeds generally, cannot be avoided
or confirmed during his minority.^ But as to many other trans-
actions it is different, particularly where the contract relates to
personal property, or is an executory one, to perform services,
for instance, and relates to the minor's person. And the Ameri-
can cases seem to establish clearly the doctrine that an infant's
sale or exchange or purchase of personal property, or contract
for such sale or exchange or purchase, may be rescinded by him
at any time during minority ; and when the transaction is thus
avoided, the title to the property revests in the infant.^ This
distinction appears to be recognized out of regard to the infant's
benefit ; since land might be recovered after long lapse of time
upon disturbing the possessor's title, while personal property
would often be utterly lost if one could not trace out and re-
cover it until he became of age. Furthermore it is easier thus
to make restitution to the other party and place things in statu
quo. To repudiate one's general contract while yet an infant,
so as to gain an unfair advantage, is not usually permitted ; but
the court requires his decision to be postponed to mature age.^
An infant's void conveyance he may have set aside at any time
during infancy.*
1 Zouch V. Parsons, 3 Burr. 1794 ; sociation v. Herman, 33 Md. 128 ; Riley
McCormie i;. Leggett, 8 Jones, 425 ; v. Mallory, 33 Conn. 201 ; Briggs v.
Bool V. Mix, 17 Wend. 119 ; Emmons McCabe, 27 Ind. 327 ; Hoyt v. Williin-
V. Murray, 16 N. H. 385; Cummings v. son, 57 Vt. 404 ; McCarthy i'. Hender-
PowcU, 8 Tex. 80; Sims v. Everhardt, son, 138 Mass. 310. An infant's eon-
102 U. S. Supr. 800 ; Philips v. Green, tract for purchasing stock may be
3 A. K. Marsh. 7 ; Tillinghast v. Hoi- avoided or go unfulfilled during minor-
brook, 7 R. I. 230 ; 83 Ind. 382. So ity. Indianapolis Chair Co. v. Wilcox,
his chattel mortgage cannot be made 59 Ind. 429. So his contract to marry,
binding to liis prejudice by any act of or to perform labor for a specified
affirmance during minority. Corey v. time, as seen in chapters 3, 5, po^t.
Burton, 32 Mich. 30. ^ Dunton v. Brown, 31 Mich. 182
- Grace v. Hale, 2 Humph. 27 ; Ship- * Swafford v. Ferguson, 3 Lea, 292.
man v. Horton, 17 Conn. 481 ; Kitchen A statute provision is sometimes found
r. Lee, 11 Paige, 107 ; Willis v. Twom- as to disaffirmance during minority,
bly, 13 Mass. 204 ; Carr v. Clough, 6 Murphy v. Johnson, 45 Iowa, 57.
Fost. 280; Monumental Building As-
620
CHAP. III.] ACTS BINDING UPON THE INFANT. § 411
CHAPTER III.
ACTS BINDING UPON THE INFANT.
§ 410. General Principle of Binding Acts and Contracts. —
We have seen that the general contracts of infants are either
void or voidable, and that the tendency at this day is to treat
them as voidable only. But keeping in view the principle that
an infant's beneficial interests are to be judicially protected, we
shall find that there are some contracts which he ought to be
able for his own good to make ; some contracts of which it may
be said that the privilege of standing upon a clear footing is
worth more to him than the privilege of repudiation. Some
such contracts there are, recognized as exceptions to the general
rule ; these are neither void nor voidable, but are obligatory
from the outset, and thus neither require nor admit of ratifica-
tion on the infant's part.^
§ 411. Contracts for Necessaries ; What are such for Infants?
— The most important of this class of contracts are those for
necessaries ; which in fact are so important that they are often
mentioned as the only exception to the rule of void and void-
able contracts. The general signification of the word " neces-
saries " has already been discussed with reference to married
women ; but it is readily perceived that what are necessaries
for a wife may not be equally necessaries for a child, and what
are necessaries for young children may not be equally necessa-
ries for those who have nearly reached majority. The leading
principles of the doctrine of necessaries being made clear, and
a rule of legal classification judicially announced, any man of
ordinary intelligence knows how to apply it ; and yet juries
will not and cannot always agree in their conclusions on this
1 See Met. Contr. 64 ; Smith, Contr. et seq. 268.
621
§ 411 THE DOMESTIC RELATIONS. [PART V.
point, every one having some preconceived notions of his own
on topics so constantly occurring in our every-day life, and to
so great an extent involving individual tastes and preferences.
Plainly, it is wrong to prevent an infant from attaining objects
not only not detrimental, but of the utmost advantage, to him ;
" since," as it has been observed, " otherwise he might be un-
able to obtain food, clothes, or education, though certain to pos-
sess at no very distant period the means of amply paying for
them all." 1
Food, lodging, clothes, medical attendance, and education, to
use concise words, constitute the five leading elements in the
doctrine of the infant's necessaries. But, to apply a practical
legal test, we must construe these five words in a very liberal
sense, and somewhat according to the social position, fortune,
prospects, age, circumstances, and general situation of the infant
himself. " It is well established by the decisions," says one
writer, " that under the denomination necessaries fall not only
the food, clothes, and lodging necessary to the actual support
of life, but likewise means of education suitable to the infant's
degree ; and all those accommodations, conveniences, and even
matters of taste, which the usages of society for the time being
render proper and conformable to a person in the rank in which
the infant moves." ^ Says another: " The word necessaries is a
relative term, and not confined to such things as are positively
required for mere personal support." ^ The language of an
American judge is this : " It would be difficult to lay down
any general rule upon this subject, and to say what would or
would not be necessaries. It is a flexible, and not an absolute
term." ^
Articles of mere ornament are not necessaries. The true rule
is taken to be that all such articles as are purely ornamental
are not necessary, and are to be rejected, because they cannot
be requisite for any one ; and for such matters therefore an in-
fant cannot be made responsible. But if they were not of this
1 Smith, Contr. 269. « Breed v. Judd, 1 Gray, 458, per
2 lb. 269. Thomas, J.
^ I\Iet. Contr. 69. And see Peters u.
Fleming, 6 M. & W. 42.
622
CHAP. III.] ACTS BINDING UPON THE INFANT. § 411
description, then the question arises whether they were bought
for the necessary use of the party, in order to support himself
properly in the degree, state, and station of life in which he
moved ; if they were, for such articles the infant may be made
responsible.^ The result of the cases on both sides of the
Atlantic seems to be that unless the articles are, both as to
quality and quantity, such as must be necessaries to any
one, the burden of proof lies on the plaintiff to show such
a condition of life of the defendant as might raise to the
rank of necessaries things which would otherwise be considered
luxuries.^
In England, a pair of solitaires (or shirt-fasteners), worth
£25, are not, it would appear, necessaries for any infant.^ But
it seems that presents to a bride, when she becomes the defend-
ant's wife, may be necessaries.^ Betting-books are not an in-
fant's necessaries.^ Nor tobacco, though for a minor soldier.^
Nor money paid to relieve an infant from draft for military
duty.'' Horses, saddles, harness, and carriages may be neces-
saries under some circumstances, but not ordinarily ; and this
is the better doctrine, English and American.^ Wedding gar-
ments for an infant who marries are, within reasonable limits,
necessaries.^ But not the treats of an undergraduate at col-
lege.^** Nor, in Arkansas, as it appears, kid gloves, cologne,
silk cravats, and walking-canes.^^ The uniform of an officer's
servant is adjudged a necessary ; but not cockades for his
company.^2 ^^ insurance contract is not a necessary .^^ But a
1 Per Parke, B., Peters v. Fleming, " Dorrell v. Hastings, 28 Ind. 478.
6 M. & W. 42. 8 Harrison v. Fane, 1 Man. & Gr.
2 Smitli, Contr. 272, 5th Am. ed., 550; Grace v. Hale, 2 Humph. 67;
Rawle's n., and cases cited ; Harrison Aaron v. Harley, 6 Rich. 26 ; Merriain
V. Fane, 1 Man. & Gr. 550; Wharton r. Cunningham, 11 Cush. 40; Beeler y.
V. Mackenzie, 5 Q. B. 606 ; Rundel v. Young, 1 Bibb, 519 ; Owens v. Walker,
Keeler, 7 Watts, 239 ; Bent v. Manning, 2 Strobh. Eq. 289.
10 Vt. 225 ; Merriam i-. Cunningham, ^ Sams v. Stockton, 14 B. Monr.
11 Cush. 40. 232.
8 Ryder y. Wombwell, L. R. 4 Exch. lo Wharton v. Mackenzie, 5 Q. B.
32. 606; Brooker v. Scott, 11 M. & W. 67.
* Genner i\ Walker, 19 LawThnes, i^ Lefils v. Sugg, 15 Ark. 137.
N. 8. 398; 3 Am. Law Rev. 590. 12 Hands v. Slaney, 8 T. R. 578;
5 lb. Coates v. Wilson, 5 Esp. 52.
6 Bryant v. Richardson, L. R. 3 Ex. ^^ Xew Hampshire Ins. Co. v. Noyes,
93, n. 82 N. H. 345. See Harrison v. Fane, 1
623
§ 412 THE DOMESTIC RELATIONS. [PART V.
solicitor's bill for preparing a marriage settlement may be.^
Those who incline to pursue the subject still further will find
some interesting decisions as to balls, serenades, suits of satin
and velvet, and doublets of fustian, among the ancient cases
which have survived the fashions they describe.^
§ 412. Contracts for Necessaries; Subject continued. — It is
usual to leave the question of necessaries in each case to the
jury, without very positive directions. But the dividing line
between court and jury is not in this respect clearly marked,
as the latest cases teach us. Ryder v. Womhwell lays it down
that the question whether articles are necessaries is one of fact,
but, like other questions of fact, should not be left to the jury
unless there is evidence on which they could reasonably find
that they were.^ The immediate object of this decision was to
set aside a verdict deemed improper ; as to the fitness of such
a rule in its broader application there is considerable doubt.*
But it has frequently been said, that in a very clear case a
judge would be warranted in directing a jury authoritatively
that some articles, like diamonds and race-horses, would not be
necessaries for any minor.^
The propriety of classing education as among the necessaries
of an infant rests rather upon respectable dicta than precedents.
Lord Coke includes among necessaries for which an infant may
bind himself by contract, "good teaching and instruction,
whereby he may profit himself afterwards ; " and the doctrine
within strict limits is undoubtedly correct.^ In Vermont it is
Man. & Gr. 650; Davis v. Caldwell, 12 necessaries. If that is to be taken to
Cush. 512; Bent v. Manning, 10 Vt. be law, of course 1 must act upon it ;
225 ; Stanton v. Willson, 3 Day, .37 ; but I should certainly have preferred
Glover v. Ott, 1 McCord. 572 ; Rundel the law as it was previously understood
V. Keeler, 7 Watts, 239. to be, that it was for the jury to say
1 Helps )'. Clayton, 17 C. B. n. s. 553. what articles were reasonably neces-
2 See cases cited Met. Contr. 69, 70 ; sary with reference to the position of
Cro. Eliz. 583. the defendant, the infant." Genner v.
3 Ryder v. Wombwell, L. R. 4 Exch. Walker, 19 Law Times, n. s. 398. And
32. see Johnstone v. Marks, 19 Q. B. D.
* Of this rule, says Cockburn, C. J., 509.
of the Queen's Bench, still later: "I ^ See Harrison v. Fane, Davis v.
really cannot understand it, unless it Caldwell, and other cases, supra ;
means that it is to be a question of Mohney v. Evans, 51 Penn. St. 80.
law for the judge to determine whether ^ Co. Litt. 172 ; 1 Sid. 112; Met.
the articles disputed are, or are not, Contr. 69, n. ; Smith, Contr 269, 273.
624
CHAP. III.] ACTS BINDING UPON THE INFANT. § 412
decided that a collegiate education is not to be ranked among
those necessaries for which an infant can render himself abso-
lutely liable.^ But the court seems to make this but a prima
facie rule, and to admit that extraneous circumstances might be
shown to make even this a necessary ; while a good common-
school education is strongly pronounced to be such. And the
judge adds : " I would not be understood as making any allu-
sion to professional studies, or to the education and training
which is requisite to the knowledge and practice of mechanic
arts. These partake of the nature of apprenticeships, and stand
on peculiar grounds of reason and policy. I speak only of the
regular and full course of collegiate study." ^
An infant is not liable, at common law, for the expense of
repairing his dwelling-house on a contract made by him or his
guardian or parent for that purpose ; although such repairs
were necessary for the prevention of immediate and serious
injury to the house.^ So timber furnished to an infant for
building on his own land is not a necessary.* The law is ex-
tremely reluctant to permit an infant's real estate to be encum-
bered in any possible way.
So it is ruled that the services and expenses of counsel in a
suit brought to protect the infant's title to his real estate can-
not for similar reasons be charged against the infant on his
own contract.^ But the doctrine that legal expenses cannot be
charged as necessaries for an infant appears not to prevail in
Connecticut ; and the more liberal rule is asserted, that in cases
where, under peculiar circumstances, a civil suit is the only
means by which an infant can procure the absolute necessaries
which he requires, power cannot be denied him to make the
necessary contracts for its commencement and prosecution ; for
it would be a reproach to the law to hold otherwise.^ In this
particular case the circumstances justifying relief were very
strong. Moreover, the English cases long ago established that
1 Middlebury College v. Chandler, Bardwell, 126 Mass. 366 ; Price v. San-
16 Vt. 683. ders, 60 Ind. 310.
2 Per Royce, J., ih. * Freeman v. Bridger, 4 Jones Law, 1.
8 Tupper V. Caldwell, 12 Met. 550; 5 Phelps v. Worcester, 11 N. H. 61.
West V. Gregg, 1 Grant, 53 ; Wallis v. « Munson v. Washband, 31 Conn.
303.
40 625
§ 412 THE DOMESTIC RELATIONS. [PAET V.
money advanced to an infant to procure him liberation from
arrest, where he was in execution or taken in custody on a debt
for necessaries, could be recovered as necessaries.^ Services of
an attorney in defending the infant against a criminal complaint
may likewise be recovered.^ And we have already seen that
legal expenses may sometimes be classed as necessaries for mar-
ried women.^ On the whole, it may be said that legal expenses
on behalf of a minor may or may not be regarded as a necessary
for him, according to circumstances and the reasonableness of
incurring them. And it would appear that the burden of proof
is upon an attorney to show that the suit could be viewed in
such a light, so as to entitle him to recover for his fees and
disbursements.* Generally, a guardian or next friend would
assume the responsibility of employing counsel for advice or
suits oil an infant's behalf. A court of equity will enforce
against an infant an agreement settling a suit made by his
guardian, when it appears to have been made for the infant's
benefit ^
The doctrine of necessaries is manifestly not to be extended
to an infant's trading contracts, as we have already intimated.
Thus the board of four horses for six months, the principal use
of which was in the business of a hackman, is not within the
class of necessaries for which an infant is liable, although the
horses are occasionally used to carry his family out to ride.^
The board of an infant, again, is included among the necessaries
for which he may pledge his credit^ But here, too, we must
keep within our principle. Thus, where an infant took a house
to carry on the business of a barber ; the house containing five
rooms, two on the ground floor, one of which he occupied as a
shop, the other to reside in, and three above, which he underlet;
he was held not to be liable for the rent.^ An infant may con-
1 Clarke v. Leslie, 5 Esp. 28 ; 2 secure the estate to the infant. Epper-
Eden, 72. son v. Nugent, 57 Miss. 45.
^ Barker v. Hibbard, 54 N. H. 539. ^ Merriam v. Cunningham, 11 Cash.
3 Supra, p. 93. 40 ; supv<t, § 408. But see Hall v. But-
« Thrall v. Wright, 38 Vt. 494. terfield. 59 N. H. 354.
5 In re Livingston, 34 N. Y. 555. ^ Bradley v. Pratt, 23 Vt. 378.
And so wl)ere there is no guardian, and ^ Lowe v. Griffith, 1 Scott, 458.
the counsel's services contributed to
6-26
CHAP. III.] ACTS BINDING UPON THE INFANT. § 413
tract for his necessary lodging, but he cnnnot bind himself for
more.
§ 413. Contracts for Necessaries ; Same Subject. — But the
question in all such cases is one of mixed law and fact. And
articles prima facie to be classed as luxuries, such as wines,
fruits, and the use of a horse and carriage, might, under some
circumstances, become necessaries ; as if, for instance, medically
prescribed, for an infant's health ; though this salutary rule is
not designed to support a quibble.^ The infant's clothes may
be fine or coarse, according to his rank ; his education may vary
according to the station he is to fill, and the extent of his prob-
able means when of age ; and as to servants, attendance, and
the like, this will depend on his social position.^ Stock pur-
chased for a farm, too, may under some special circumstances
be treated as necessaries.^ And so with plantation supplies,
where a married infant is intrusted by law with the estate.*
And upon such issues, quantity may be as much for the consid-
eration of the jury as quality.^ Primarily, the parent or guar-
dian who supplies the necessaries is the judge of what quantity
and quality are suitable for the infant.*^ And if the natural
protector with whom the child lives does his legal duty as best
he may according to his means, the fact that he is poor, and
unable to pay for what was furnished to the child, will not
render the child's estate liable. ''
If one furnish an infant necessaries, and also other articles
not necessary under his circumstances and condition, he is not
on that account precluded from recovering for the necessaries ;
though, as to the balance of his claim, he may be without a
remedy.^
1 See Wharton v. Mackenzie, 5 Q. B. ^ Rurghart v. Angerstein, 6 Car. &
606. P. 690.
2 See Alderson, B., Chappie v. Coo- ^ Thus a journey for the child's rec-
per, 13 M. & W. 258. Gold filling and reation, without the parent's or guar-
dentist's work upon his teeth should dian's approval, cannot generally be
be classed among the necessaries of a deemed a necessary. McKanna v.
minor of good means and social posi- Merry, 61 111. 177.
tion. Strong v. Foote, 42 Conn. 203. " Hoyt v. Casey, 114 Mass. .397.
3 Mohney v. Evans, 51 Penn. St. *< Turberville y.Whitehonse, 12 Price,
86. 692; Bent ('.Manning, 10 Vt. 225. And
■^ Chapman v. Hughes, 61 Miss, see Johnson v. Lines, 6 W. & S. 80 ;
339. Wilhelm v. Hardman, 13 Md. 140.
627
§ 413 THE DOMESTIC RELATIONS. [PART V.
An hifant is not liable for necessaries when he lives under
the roof of his father, who provides everything which seems
proper. And so when he is supplied by a guardian or widowed
mother. The parent or the legal protector having the means
and being willing to furnish all that is actually necessary, the
infant can make no binding contract for any article without
such protector's consent. Prima facie, where the child resides
at home, proper maintenance is furnished him : and the trades-
man who furnishes goods to an infant does so at his peril ; it is
incumbent upon him to show the necessity of a supply.^ But
an infant, when absent from home, and not under the care of
his parent or guardian, is usually liable for his own necessaries.^
And the law will imply a promise, on the part of an infant
having no legal protector, to make payment ; ^ though not for
any fixed amount, but only a reasonable price.*
There is no inflexible rule of law, however, which makes it
incumbent on the tradesman who supplies an infant to inquire
as to his situation and resources before giving him credit for
necessaries ; though it would be prudent always for him to do
so.^ And the parent or guardian may sanction by words or
conduct the child's purchase, so as to make it obligatory. As
in a case where the infant daughter, living with her mother at
a hotel, drove to the plaintiff's store in a carriage, accompanied
by her mother, who waited in the carriage while her daughter
purchased the goods, some of which she took home in the car-
riage, while others were delivered at the hotel ; here it might
be reasonably inferred, as the court decided, that the whole had
come under the mother's inspection, so as to make the infant
liable for the purchase.^
1 Bainbridge r. Pickering, 2 Blacks, tree, Busbee Law, 110. Perhaps for
1325 ; Story v. Pery, 4 Car. & P. 526 ; a return of such necessaries as the
Anijel V. McLellan, 16 Mass. 28 ; Wail- minor has not consumed tlie tradesman
ing V. Toll, 9 Johns. 146 ; Johnson v. may sue. Nichol v. Steger, 2 Tenn.
Lines, 6 W. & S. 80 ; Kline v. L'Amo- 328.
reux, 2 Paige, 419; Perrin r. Wilson, '^ Angel v. McLellan, 16 Mass. 28 ;
10 Mo. 451 ; Freeman v. Bridger, 4 Hunt v. Thompson, 3 Scam. 179.
Jones Law, 1 ; Smith v. Young, 2 Dev. '' Hyman v. Cain, 3 Jones Law, 111 ;
& Bat. 26 ; Connolly v. Hull, 3 McCord, Epperson v. Nugent, 57 Miss. 45.
6 ; Elrod v. Myers, 2 Head, 33 ; Kraker * Parsons v. Keys, 43 Tex. 557.
V. Byrum, 13 Rich. 163; Tilton v. Rus- ^ Brayshaw v. Eaton, 7 Scott, 183.
sell, 11 Ala. 497; Hussey v. Round- « Dalton v. Gib, 5 Bing. N. C. 198 j
628
CHAP. III.] ACTS BINDING UPON THE INFANT. § 413
The English cases seem to lay especial stress upon the ques-
tion whether articles are or are not of themselves necessaries.
And it is held, not only that an infant may enter into a con-
tract for necessaries for ready money, but that he may be bound
by any reasonable contract for necessaries on a credit, though
he has an income of his own, and an allowance amply sufficient
for his support.^ In South Carolina a contrary doctrine is
maintained ; namely, that an infant who is regularly furnished
with necessaries, or the means in cash of procuring them, by
his parent or guardian, or from any other source, is prima facie
not liable for necessaries furnished him on credit.''^ This is
likewise the rule in some other States.^ Claims against an
infant for necessaries being perfectly valid at law, the creditor
cannot sue in equity ; * but it is held that where a minor cannot
legally contract a debt on the ground that his parent or guar-
dian has properly supplied him, equity will compel him to
return the furnished articles if he has them.^ And while it is
true that an infant cannot bind himself when he has a parent
or guardian who supplies his wants, he may be bound by the
purchase of necessaries under the express or implied authority
of his guardian.^ But not for anything absurd or improper in
quantity or quality.''' And where credit is given to a parent or
guardian, the infant's estate is not answerable.^
The rule as to necessaries in general is, that it is the prov-
ince 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 quantity, quality, and
their adaptation to the condition and wants of the infant.^
Atchison v. Bruff, 50 Barb. 381. And his parent or guardian supplied hira.
see Strong v. Foote, 42 Conn. 203. Parsons v. Keys, 43 Tex. 5-57.
1 Burghart v. Hall, 4 M. & W. 727 ; * Oliver (;. McDuffie, 28 Ga. 522.
Smitli, Contr. 273. 6 Nichol v. Steger, 6 Lea, 393.
2 Rivers v. Gregg, 5 Rich. Eq. ^ Watson v. Hensel, 7 Watts, 344.
274. And see Mortara v. Hall, 6 Sim. ■? Jolinson v. Lines, 6 W. & S. 80.
4G5. 8 Sinklear v. Emert, 18 111. 63; 148
8 Nicholson v. Wilborn, 13 Ga. 467; N. Y. Super. 152.
Nichol V. Steger, 6 Lea, 393. In a suit 9 Peters v. Fleming, 6 M. & W. 42;
to recover the price of necessaries sold Harrison v Fane, 1 Man. & Gr. 5-50 ;
to the defendant during minority, the Phelps v. Worcester, 11 N. H. 51 ; Mer-
burden is on the latter to show, by riam i\ Cunningham, 11 Gush. 40; Bee-
way of defence, that during minority ler v. Young, 1 Bibb, 519.
629
§ 414 THE DOMESTIC KELATIONS. [PAKT V.
But, as the reader is already apprised, this rule is neither stated
uor applied with invariable precision in all cases. Generally,
the question is one of fact for the jury ; and the two principal
circumstances are, whether the articles are suitable to the
minor's estate and condition, and whether he is, or is not, with-
out other means of supply.^ An infant will be held to pay for
necessaries what they are reasonably worth, but not what he
may foolishly have agreed to pay for them.^ Xor can the court
be precluded, by the form of the contract, from inquiring into
their real value.^ By the better opinion it may be shown, when
the infant is sued, not only that the articles were not of the
kind called necessaries, but that the infant at the time they
were furnished was sufficiently provided with articles of that
kind.4
§414. Contracts for Necessaries; Money advanced ; Infant's
Deed, Note, &c. ; Equity Rules. — An infant is liable to an action
at the suit of a person advancing money to a third party to pay
for necessaries furnished to the infant.^ But it is thought to be
otherwise as to money supplied directly to the infant, to be by
him thus expended, notwithstanding the money be actually
laid out for necessaries.^ The reason for this distinction is said
to be that in the latter case the contract arises upon the lend-
ing, and that the law will not support contracts which are to
depend for their validity upon a subsequent contingency." One
writer admits that, according to some reports of a leading case,
the court held that if the money were actually expended for
necessaries the infant would be chargeable;^ but adds that
the weight of authority is that the infant is not liable at law
for money thus lent and appropriated.^ What this weight of
1 Per Shaw, C. J., Davis v. Cald- It is immaterial wliether the plaintiff
well, 12 Cush. 512. did or did not know of the existing
2 Locke V. Smith, 41 N. H. 346. supply. lb.
3 See 10 Mod. 85; Met. Contr. 73; » Swift v. Bennett, 10 Cush. 436;
2 Kent, Com. 240 ; Parsons v. Keys, 43 Rand ill v. Sweet, 1 Denio, 4G0.
Tex. 557. An infant sued for tlie price ^ Macphers. Inf. 505, 506 ; Ellis v.
of goods has not the burden of showing Ellis, 5 Mod. 368 ; 12 Mod. 197 ; Earle
that they were not necessaries, but the v. Peele, 1 Salk. 386 ; Clarke v. Leslie,
plaintiff must show that they were. 6 Esp. 28.
Wood V. Losey, 50 Mich. 475. ' See Swift v. Bennett, 10 Cush. 436,
4 Johnstone v. Marks, 19 Q. B. D. 8 Knig „. Ellis, 12 Mod. 197.
50'J; Barnes v. Toye, 13 Q. B. D. 410. » Met. Contr. 72. The learned writer
G30
CHAP. III.] ACTS BINDING UPON THE INFANT. § 414
authority may be is not apparent, but the analogies elsewhere
noticed as to a wife are to be considered as in point. The
equity rule is, that if money is lent to an infant to pay for
necessaries, and it is so applied, the infant becomes liable in
equity ; for the lender stands in place of the payee.^ And this
is the New York doctrine, whether legal or equitable.^ An
innkeeper's lien on the baggage of his infant guest has been pro-
tected in our courts, notwithstanding the infant acted im-
properly and contrary to his guardian's wishes, so long as the
innkeeper acted in good faith ; and this, even to the extent of
protecting the innkeeper for money furnished the infant, which
was expended for necessaries.^ Circuity of action should not
be favored at this late day, especially when the object is, after
all, to enforce a moral obligation in small transactions.
The old books say that an infant may bind himself by his
deed to pay for necessaries.* Yet it has been considered clearly
settled that he cannot do so by a bond in a penal sum ; since it
cannot be to his advantage to become subject to a penalty.^
But on the question whether an infant is bound by a note not
negotiable given for necessaries, there is an irreconcilable differ-
ence of opinion in the authorities ; though Story considers the
weight of modern English and American authorities greatly in
favor of holding promissory notes given or indorsed by an infant
voidable only, and therefore capable of being ratified after the
party comes of age.^ The mischief of holding an infant's prom-
issory note for necessaries to be worthless is the same as in
loans of money for the same purpose ; namely, that an infant
is thereby allowed to get his supplies without paying for them.
Equity influences the later cases ; that somewhat novel and
quotes a dictum from 10 Mod. 67, to And see Randall v. Sweet, 1 Denio, 460,
controvert that of 12 Mod. 197, which per Bronson, C. J.
last held that money might be some- ^ Watson v. Cross, 2 Duv. 147.
times properly charged upon the infant. * Com. Dig. Infant. But see next
But the context only contemplates the page.
'great difference V)etween lending an ^ Ayliff ?'. Archdale, Cro. Eliz. 920;
infant money to buy necessaries, and Corpe v. Overton, 10 Bing. 252 ; Smith,
arfiialli/ seeiti'i the money so laid out." Be- Contr. 281 ; Met. Contr. 75.
sides, it is not clear which of the two is ^ Story, Prom. Notes, 6th ed. § 78,
the better dictum. and cases cited. And see 2 Kent, Cora.
1 Marlow v. Pitfeild, 1 P. Wms 558. 11th ed. 257 ; Bayley, Bills, ch. 2, pp
2 Smith V. Oliphant, 2 Sandf. 306. 45, 46, 5th ed. See last chapter.
631
§ 414 THE DOMESTIC RELATIONS. [PART V.
yet manifestly just principle gaining ground that one who re-
ceives advantages is liable on an implied contract to furnish a
suitable recompense. Reeve and otliers state the law thus :
that an infant is not bound by any express contract for neces-
saries to the extent of such contract, but is bound only on an
implied contract to pay the amount of their value to him ; that
when the instrument given by him as security for payment is
such that, by the rules of law, the consideration cannot be
inquired into, it is void and not merely voidable ; that when-
ever the instrument is such that the consideration may be in-
quired into, he is liable thereon for the true value of the articles
for which it was given. ^ This excellent statement could hardly
be improved upon, except so far as equitable doctrine may
properly enlarge the expression ; and, for a topic so entirely
unsettled, is as well entitled to be called good law as anything
else. And, what is more, it has justice in it. The doctrine
has received substantial encouragement in Massachusetts.^
Even a bond for necessaries has been deemed binding in a
State where the statute allows its consideration to be im-
peached and a judgment pro tanto rendered for the amount
actually due.^ The same practical result seems to be reached
in New Hampshire, and other States, so as further to give the
infant's indorser or surety a remedy against him ; * and the
broad doctrine conforms to equitable procedure in other
analogous cases.^
1 Reeve, Dom. Rel. 229, 230 ; 2 Dane, necessaries ; since the indebtedness for
Abr. 364, 365 ; Met. Contr. 75. necessaries for whicli he is liable must
2 Stone I'. Dennis, 13 Pick. 6, 7, per be created directly therefor. But, in
Shaw, C. J. ; Earle v. Reed, 10 Met. 387. equity, the infant is liable for the money
^ Guthrie v. Morris, 22 Ark. 411. so obtained, where the creditor can
* M'Crillis v. How, 3 N. H. 348; show that it was actually expended for
Conn V. Coburn, 7 N. H. 368 ; Dubose necessaries. Price v. Sanders, 60 Ind.
V. Wlieddon, 4 M'Cord, 221 ; Haine v. 310. But a surety on an infant's note,
Tarrant, 2 Hill (S. C). 400; McMinn given for necessaries, who lias been
V. Richmonds, 6 Yerg. 9. See, contra, compelled to pay it, cannot sue the in-
Swasey r. Vanderheyden, 10 Johns. 33. fant during his infancy for reimburse-
A late Indiana case tends in the same ment. Ayers v. Burns, 87 Ind. 245.
direction. Here it is said an infant is ^ We have seen a similar rule ap-
not liable at law on liis note or other phed of inquiry into consideration in
contract wliereby lie obtains money to the case of a married woman's contract
build a barn or work his farm, although under equity and modern statutes.
the money be actually expended for 5/</))a, Part II. c. 11. An account for
632
CHAP. III.] ACTS BINDING UPON THE INFANT.
414 a
We may here add that infancy of the maker of a note does
not excuse the want of a demand on him by the holder in
order to charge the indorsee. ^
§ 414 a. Liability for Necessaries, apart from Strict Contract.
— While stress was formerly laid upon the infant's contract
for his necessaries, infants appear liable in various modern
instances on the gTound rather of an implied liability based
upon the necessity of the situation, and because the infant de-
rives a substantial benefit at another's cost. Thus, where the
infant seeks to recover what his services are reasonably worth,
the adult is permitted to set off the reasonable value of what
the infant may have received from him in support or other-
wise.^ And it is held that one may recover for necessaries
necessaries was allowed in equity, with
a lien on the infant's reversionary in-
terest, in a recent English case, although
the minor's deed of sale of his rever-
sionary interest, given during minority,
as security, was declared not binding
upon him. Martin v. Gale, 4 Ch. I).
628. A similar rule is observed in
charging a married wonum's separate
estate. In a late Vermont case this
later rule received a striking illustra-
tion. An infant boarded in a country
town for some twenty weeks at a rea-
sonable price. The person to whom
he was indebted owed his own adult
son money, and for the convenience
of the parties drew an order upon the
infant, authorizing him to pay the
amount of the board to his son ; which
order was duly received, and the in-
fant agreed to pay it. Soon after, by
consent of the parties, this order was
surrendered, and the infant substituted
in its place his promissory note. The
note was negotiable, but never was ne-
gotiated ; and the holder, the adult son
of the person furnishing board, brought
a suit thereon. Tiie evidence showed
that the defendant's board constituted
the sole consideration of the note. It
was held tliat the consideration of the
note was open to inquirj', and that,
upon the facts found, the defendant
was liable to the plaintiff for the full
amount of the note ; and, as the court
also decided, with interest. Bradley v.
Pratt, 23 Vt. 378. Says the learned
judge who gave the opinion in this
case, after a full examination of the
conflicting authorities as to the infant's
liability on his promissory note for
necessaries : " We may then, we think,
regard the question as still in dnbio,
and justifying the court in treating it
as still an open question. And being
so, we should desire to put it upon safe
and consistent ground. We are led,
then, to inquire what is the true prin-
ciple lying at the foundation of all
these inquiries. We think it is, that
the infant should be enabled to pledge
his credit for necessaries to any extent
consistent with his perfect safety. AH
the cases and all the elementary wri-
ters expressly hold that it is for the
benefit of the infant that he should be
able to contract for necessaries; and
we see no reason why he may not be
allowed to contract in the ordinary
modes of contracting, so far as his per-
fect safety is maintained always." See
Thing V. Libbev, 16 Me. 55 ; Ray v.
Tubbs, 50 Vt. 688.
1 Wyman i: Adams, 12 Gush. 210.
2 Hall V. Butterfield, 59 N. H. 3.'3-4,
3.58. But there is no set-off of what
the minor was not bound to pay for.
92 Ind. 103 ; § 236.
633
§ 416 THE DOMESTIC RELATIONS. [PART V.
furnished to a minor, taken from an almshouse, and supported
on the credit of property which was to become his on his
father's death. ^
§ 415. Binding Contracts as to Marriage Relation ; Promise
to marry not binding. — There are other contracts besides
necessaries which are excepted from the general rule, and
are made obligatory upon the infant; being neither void nor
voidable.
Thus contracts of marriage are binding, if executed ; they
cannot be avoided on the ground of infancy, as we have shown
in another connection ; ^ while on the other hand no such con-
siderations of policy attach to an infant's promise to marry,
and such promise is not binding.^ So, too, the general rights
and liabilities of a husband as to custody, maintenance, and
the like, which are incidental to the marriage relation, apply,
from reasons of policy, to infants as to adults.^ So is a con-
tract for the burial of a spouse held beneficial and binding
upon an infant.^
§ 416. Acts -which do not touch Infant's Interest ; Where
Trustee, Officer, &c. — The acts of an infant that do not touch
his interest, but which take effect from an authority which he
is by law trusted to exercise, are binding ; as if an infant ex-
ecutor receives and acquits debts to the testator, or an infant
officer of a corporation joins in corporate acts, or any other
infant does the duties of an office which he may legally hold.^
And his conveyance of land which he held in trust for another,
in accordance with the trust, is not to be disaffirmed by him on
the ground of infancy ; a principle which may extend some-
times to conveyances from a parent made to defraud creditors.'^
This seems to arise from the consideration which the law pays
1 Trainer v. Trumbull, 141 Mass. 250 ; Schouler, Has. & Wife, §§ 412,
527. 413.
2 See Husband and Wife, ch. 1 ; ^ Met. Contr. 66. See Butler v.
Bonney v. Reardin, 6 Bush, 34. Breck, 7 Met. 164; Roach v. Quick, 9
3 Schouler, Hus. & Wife. §§ 24, 42; Wend. 238. As to devastavit by an in-
Rush V. Wick, 31 Ohio St. 521. fant administrator, see Saumni v. Cof-
4 Bac. Abr. Infancy and Age (B) ; felt, 79 Va. 510.
3 Burr. 1802 ; Met. Contr. G6. ^ Prouty v. Edgar, 6 Clarke (Iowa),
5 Chappie V. Cooper, 13 M. & W. 353; Starr v Wright, 20 Ohio St 97;
Elliott V. Horn, 10 Ala. 348.
634
CHAP. III.] ACTS BINDING UPON THE INFANT. § 419
to the rights of others besides the infant ; or, to put it differ-
ently, the doctrine may rest upon this fact, that the infant in
such cases does not act as an infant. So the acts of the kina
cannot be avoided on the ground of infancy ; partly for the
same reasons, partly as one of the attributes of his sover-
eignty.^ This attribute of sovereignty may perhaps enter as
an element into the public acts of infants in this country who
are improperly chosen to civil offices, yet whose official acts
should be sustained.
§ 417. Infant Members of Corporations. — It is held that
infants and married women, owning proprietary rights in
townships, are not by reason of legal incapacity prevented
from being bound by the acts of proprietors at legal meetings.'-^
And the same is doubtless true of infant shareholders in cor-
porations generally. Their incapacity would, otherwise, block
the wheels of business altogether in matters where it is really
property, and not persons, that are usually represented.^
§ 418. Acts •which the Lavr would have compelled. — It is
an old and well-settled doctrine that an infant will be bound
by any act which the law would have compelled him to per-
form ; as if the infant make equal partition of lands, or assign
dower, or release an estate mortgaged on satisfaction of the
debt.'^ But it is held that this rule does not apply to the case
of a voluntary distribution ; for the law, though it would have
coerced a distribution, might not have made just such a one as
was made by the parties.^
§ 419. Contracts binding because of Statute; Enlistment; In-
denture.— Enlistments are binding contracts under appropri-
ate public statutes.^ Whenever a statute authorizes a contract
which from its nature or objects is manifestly intended to be
performed by infants, such a contract must, in point of law,
1 Met. Contr. 66. Penn. 115 ; Prouty v. Edgar, 6 Clarke
2 Townsend v. Downer, 32 Vt. 18.3. (Iowa), 353.
8 As to the binding force of a decree ^ Kilcrease i\ Shelby, 23 Miss. 161.
in equity upon the infant's property, ^ King v. Rotherfield Greys, 1 B. &
see post, c. 6. C. 345; Commonwealth v. Gamble, 11
* Co. Litt. .38 a, 172 a ; 3 Burr. 1801 ; S. & K. !)3 ; United States v. Bainbridge,
Met. Contr. 67 ; Jones v. Brewer, 1 1 Mason, 83, before Story, J.
Pick. 314; Bavington v. Clarke, 2
635
§ 420 THE DOMESTIC RELATIONS. [PART V.
be deemed for their benefit and for the public benefit ; so that
when hoiia fide made it is neither void nor voidable, but is
strictly obligatory upon them. Yet if there be fraud, circum-
vention, or undue advantage taken of the infant's age or situ-
ation by the public agents, the contract could not, in reason or
justice, be enforced.^ And contracts of enlistment are not by
our statutes usually made binding upon any infants under a
prescribed age, without, at all events, the consent of parent or
guard ian.2
On like principles, a minor may be bound by his indentures
of apprenticeship, executed in strict conformity to statute ;
these being likewise deemed for his benefit. By the custom
of London, and under the laws of some States, the covenants
of the minor apprentice are obligatory upon him. But it is
otherwise by the common law of England, and also under the
statutes of Elizabeth, and in New York, Massachusetts, and
other States. Still, although the infant may not be liable for
breach of his covenants, he cannot dissolve the indenture.^
The English doctrine is that indentures are so far binding, that
the master may enforce his rights under them ; and the legal
incidents of service as apprentice attach to this relation ; unless
the master by his own misconduct deprives the infant of the
benefits of the contract, in which case the law will release the
latter from his bargain.* A provision not for the benefit of
the infant under such an indenture may render such an in-
strument inoperative.^
§ 420. Infant's Recognizance for Appearance on Criminal
Charge. ^ — ^ Partly out of respect to statute requirements, and
partly, no doubt, because it is beneficial to one charged with
1 United Slates v. Bainbridgje, supra. Inhabitants of Wigston, 3 B. & C. 484;
1 Mason, 83. And see Franklin v. Clark ?'. Goddard, 39 Ala. 164 , infra,
Mooney, 2 Tex. 452. Part VI. c. 1.
2 Matter of Tarble, 25 Wis. 390 ; In * 5 Dowl. & Ry. 339; 6 T. R. 558;
re McDonald, 1 Low. 100; Seavey v. Cro. Jan. 494; Cro. Car. 179; Met.
Seymour, 3 Cliff. 4.39. Contr. 0(5; Rex v. Mountsorrel, 3 M. &
3 Met. Contr. G6. But in some States S. 497.
he can. See Woodruff v. Locjan, 1 ^ Such, e. g., as a provision for not
Eng. 276; Stokes ii. Hatcher, 1 South, paying wages regularly. Meakin v.
84 ; M'Dowles's Case, 8 Johns. 331 ; Morris, 12 Q. B. D. 352.
Blunt V. Melcher, 2 Mass. 228; Rex v.
636
CHAP. III.] ACTS BINDING UPON THE INFANT. § 421
crime to be allowed to enter into recognizance for his personal
appearance in court, instead of suffering close confinement
meantime, it is held that a minor defendant in criminal pro-
ceedings may bind himself personally by such recognizance,
entered into after the usual form by himself and his sureties.^
§ 421. Whether Infant's Contract for Service binds him. —
Apart from statutes prescribing differently, the executory con-
tract of a minor, made without the consent of his parent or
guardian, for employment for a certain or uncertain time, by
means of which he may obtain necessaries or a livelihood, may
be treated perhaps as void if positively disadvantageous in
terms ; ^ it is not by the better authorities to be considered as
absolutely binding upon him, however fair and advantageous
its provisions, to the extent of compelling him to fulfil stipula-
tions like an adult ; but so far as he himself is concerned it is
ifsually voidable.^ If the contract were made by parent or
guardian, the employer's relation as to such a party would of
course be different.
In this country the cases are very common where a minor
is said to be emancipated and entitled to contract for and
receive his own wages. But the significance of the word
"emancipation" is not exact; and, certainly, the legal obliga-
tion of the infant's contract for work is by no means com-
mensurate with his right to the fruits of his own toil.* His
legal capacity to do acts necessarily binding does not seem to
be enlarged by the circumstance that his father has given him
his time,^ or that he serves out with neither parent nor guar-
dian to assume liabilities to others for him. But the right of
an infant nearly of age and an orphan who has no guardian, to
recover the wages due him under a contract for his services,
should be favorably regarded.^
1 State V. Wcatherwax, 12 Kan. * As to the more general effect of a
463 ; 404 n. and citations. child's emancipation, see supra, Part
2 Regina v. Lord, 12 Q. B. 755; su- III. c. 5.
pra, § 403, and comments in note. ^ Post, c. 5.
8 See Person ;•. Chase, 37 Vt. 647, ^ Waugh v. Emerson, 79 Ala. 295.
and other cases referred to in c. 5, post.
637
423 THE DOMESTIC RELATIONS. [PART V.
CHAPTER IV.
THE INJURIES AND FRAUDS OF INFANTS.
§ 422. Division of this Chapter. — In this chapter we shall
treat, Jirst, of injuries and frauds committed by an infant; second,
of injuries and frauds suffered by an infant.
§ 423. Injuries committed by Infant ; Infant civilly Responsi-
ble.— First, as to injuries and frauds committed by an infant.
It is a general principle that infancy shall not be permitted t^
protect wrongful acts. To use the forcible expression of Lord
Mansfield, the privilege of infancy is given as a shield and not
a sword.^ And minors are liable, not only for their criminal
acts, but for their torts ; and must respond in damages in all
cases arising ex delicto to the extent of their pecuniai-y means,
irrespective of the form of action which the law prescribes for
redress of the wrong.^
An infant is then as fully liable as an adult in an action
for damages occasioned by injury to the person or property of
another by his wrongful act.^ True, it has been observed, that
where infants are the actors, that might probably be considered
an unavoidable accident, which would not be so where the
actors are adults.^ But, says a writer, where the minor com-
mits a tort with force, he is liable at any age ; for in case of
civil injuries with force, the intention is not regarded.^
1 Zouch V. Parsons, -S Burr. 1802. 4 Bullock v. Babcock, 3 Wend. 391.
2 Met. Contr. 49; 1 Addis. Torts, ^ Reeve, Doni. Bel. 258. See Neal
731 ; 8 T. R. .335 ; 2 Kent, Com. 240, v. Gillett, 23 Conn. 437.
241 ; School District v. Brafrdon, 3 An infant is not liable to arrest on
Fost. 507 ; Bullock v. Babcock, 3 Wend, civil process. If, however, the writ
391 ; Oliver v. McClellan, 21 Ala. was valid, on its face, the infant has
675. no right of action against one aiding
3 Conklin v. Thompson, 29 Barb, the officer in making the arrest. Cas-
218. sier Re, 139 Mass. 458, 4G1.
638
CHAP. IV.] THE INJURIES AND FRAUDS OF INFANTS. § 423
It follows from what we have said, that for an injury
occasioned by an infant's negligence, he may be held civilly
answerable. As where, in sport, he discharges an arrow in a
school-room where there are a number of boys assembled, and
thereby disables another ; ^ or aims a missile at an older boy
and accidentally hits another and younger one.''^ And even
though under seven years of age, a child has been held liable
in trespass for breaking down the shrubbery and flowers of a
neighbor's garden.^ But not for turning horses which were
trespassing on his father's land into the highway, for this does
not constitute a tort.* All the cases agree that trespass lies
against an infant. And minors are chargeable in trespass for
having procured others to commit assault and battery.^
But, supposing the tort to have been committed by the ex-
press command of the father ; is the infant then liable ? So it
was thought in a Vermont case, where the decision nevertheless
rested on a different ground.^ " An infant, acting under the
command of his fathqr, as a wife in the presence of her hus-
band, might be excused from a prosecution for crime, if it
should appear that the intent was wanting, or that he was
acting under constraint ; yet he is answerable civilitcr for in-
juries he does to another. " " And more recently this question
is plainly decided in Maine, in the affirmative.^ And in North
Carolina, too, it is held that the infant cannot defend by alleg-
ing that the tort was committed by the direction of one having
authority over him.^ On the other hand, it would appear that
an infant cannot be held responsible for torts committed by
persons assuming to act under his implied authority ; in other
words, that his liability is not to be extended in any case
beyond acts committed by himself or under his immediate and
express direction.^''
1 Bullock V. Babcock, 3 Wend. 301. 7 Per Williams, C. J., ih.
2 Peterson v. Haffner, 59 Ind. 130 ; « Scott v. Watson, 46 Me. 362. i
Conway v. Reed, 68 Mo. 346. » Smith v. Kron, 96 N. C. 392. Here
3 Hucliting v. Engel, 17 Wis. 231. the offence was trespass upon another's
* Humphrey v. Douglass, 10 Vt. 71. premises.
5 Sikes V. Johnson, 16 Mass. .380; i^ Kobbins v. Mount, 4 Rob. (N. Y.)
Tifft V. Tifft, 4 Denio, 177; Scott v. r■>:^'?, \ Burnham y. Seaverns, 101 Mass.
Watson, 46 Me. .362. 360.
6 Humphrey f. Douglass, 10 Vt. 71, ^
639
§ 424 THE DOMESTIC RELATIONS. [PAET V.
An infant in the actual occupation of land is responsible for
nuisances and injuries to his neighbor, arising from the negli-
gent use and management of the property.^ Or for wrongful de-
tention of premises.^ And ejectment may be maintained against
an infant for disseisin, that being a tort.
§ 424. Immunity for Violation of Contract distinguished. —
The cases on the subject of an infant's torts do not seem quite
consistent, so far as decisions upon the facts are concerned ; but
the principle which runs through them all serves to harmonize
the apparent contradictions. This is the principle : that the
courts will hold an infant liable for what are substantially his
torts, but iiot for mere violations of a contract, though attended
with tortious results, and though the party ordinarily has the
right to declare in tort or contract at his election. It must be
remembered that, for his contracts, the infant is not ordinarily
liable : for his torts he is. And this distinction is at the root
, of the legal difficulty. The plaintiff cannot convert anything
/ that arises out of a contract into a tort, and then seek to enforce
/ the contract through an action of tort. Therefore was it held
that where a boy hired a horse and injured it by immoderate
driving, this was only a breach of contract for which he was
not liable.^ Nor was he liable for breaking a borrowed car-
riage.^ And where in an exchange of horses the infant had
falsely and fraudulently warranted his mare to be sound, he
was protected from the consequences on the same principle.^
The English cases, decided many years ago, exhibit a strong
disposition to apply this rule in favor of an infant's exemption.
And the language of the court in Manhy v. Scott, with reference
to the delivery of goods to an infant, and suit afterwards for
trover and conversion, was that the latter shall not be charge-
able : " for by that means all infants in England would be
ruined." ^ Says a judge, deciding a case on the same general
principle, " the judgment will stay forever, else the whole foun-
1 1 Arlflis. Torts, 731; McCoon v. ^ Green r. Greenbank, 2 Marsh. 485;
Smith, 3 Hill, 147. Howlett v. Haswell, 4 Campb. 118;
2 McClure v. McClure, 74 Ind. Morrill v. Aden, 19 Vt. 505.
108. 6 1 Sid. 129, quoted with approba-
2 Jennings v. Kundall, 8 T. R. 835. tion in Jennings v. Rundall, supra,
* Schenck v. Strong, 1 South, 87.
640
CHAP. IV.] THE INJURIES AND FRAUDS OF INFANTS. § 424
dation of the common law will be shaken." ^ But a more
equitable principle pervades the later cases. Thus in an Eng-
lish case, where one twenty years old hired a horse for a ride,
and was told plainly that it was not let for jumping, and not-
withstanding caused the horse to jump a fence and killed the
animal, he was held liable for the wrong.^ And in Vermont an
infant was held answerable, not many years ago, where he hired
a horse to go to a certain place and return the same day, then
doubled the distance by a circuitous route, stopped at a house
on the way, left the horse all night without food or shelter,
and by such over-driving and exposure caused the death of
the horse.^ This is the Massachusetts doctrine likewise,* and
that of other States/^ The New Hampshire rule is that the
infant bailee of a horse is liable for positive tortious acts wil-
fully committed, whereby the horse is injured or killed ; though
not for mere breach of contract, as a failure to drive skilfully.^
The distinction to be relied upon is, that when property is
bailed to an infant, his infancy protects him so long as he
keeps within the terms of the bailment ; but when he goes
beyond it, there is a conversion of the property, and he is liable
just as much as though the original taking was tortious."
Chief Justice Marshall pronounces infancy to be no complete
bar to an action of trover, although the goods converted be in
the infant's possession in virtue of a previous contract. " The
conversion is still in its nature a tort ; it is not an act of omis-
sion but of commission, and is within that class of offences for
which infancy cannot afford protection." ^ This doctrine is ap-
proved in New York,^ and in Maine.^^ So, in England, deti-
nue will lie against an infant, where goods were delivered for a
special purpose not accomplished.^^ And the general rule seems
to be now well established that an infant is liable for goods
1 Johnson i\ Pye, 1 Keb. 905. See ^ Towne v. Wiley, supra, per Red-
n. to Howlett in Haswell, supra. field, J. The rule is otlierwise in Penn-
'^ Barnard u. Haggis, 14 C. B. n. s. svlvania. Penrose i;. Curren, 3Rawle,
45. 351.
3 Towne v. Wiley, 23 Vt. 355. And » Vasse v. Smith, 6 Cranch, 226.
see Ray v. Tubbs, 50 Vt. 688. ^ Campbell v. Stakes, 2 Wend.
* Homer v. Thwing, 3 Pick. 492. 137.
6 Freeman v. Roland, 14 R. 1.39. ^ Lewis t>. Littlefield, 15 Me. 2.3-3.
6 Eaton V. Hill, 50 N. H. 235. " Mills v. Graham, 4 B. & P. 140.
41 641
§ 424 THE DOMESTIC RELATIONS. [PART V.
entrusted to his care, and unlawfully converted by him ; though
as to what would constitute such conversion, the authorities
are not agreed.^ Thus it is held that while a ship-owner can-
not sue his infant supercargo for breach of instructions he may
bring trover for the goods.^ And an infant, prevailing on the
plea of infancy in an action on a promissory note given by him
for a chattel which he had obtained by fraud and refused to
deliver on demand, has still been rendered liable to an action of
tort for the conversion of the chattel ; the original tort not
having been superseded by a completed contract.^ Eeplevin
would lie for the goods even where a suit for damages might
fail.^ For stolen money and stolen goods converted into money,
an infant is held liable in assumpsit.^ Yet his conversion of
specific goods should be carefully distinguished from what is in
substance a breach of his contract to sell and account for
profits,^
Where an action for money had and received was brought
against an infant to recover money which he had embezzled,
Lord Kenyon said that infancy was no defence to the action ;
that infants were liable to actions ex delicto, though not ex con-
tractu, and though the action was in form an action of the latter
description, yet it was in point of substance ex delictoJ For
embezzlement of funds, therefore, an infant may be considered
liable.^ And in New York, and some other States, an infant is
held responsible in tort for obtaining goods on credit, intending
not to pay ; ^ or for drawing a check fraudulently against a
bank where he has no funds, in payment of his purchase.^*^ In
New Hampshire, the general rule is stated to be, that if false
representations are made by an infant at the time of his con-
tract, he may set up infancy in defence ; but that if the tort is
subsequent to the contract, and not a mere breach of it, but a
1 See Story, Bailments, § 50 ; 2 ^ gee Munger v. Hess, 28 Barb. 75.
Kent, Com. 241 ; Baxter v. Bush, 29 And see Burns v. Hill, 19 Ga. 22.
Vt. 465. " Bristow v. Eastman, 1 Esp. 172.
2 Vasse V. Smith, 6 Cranch, 226. « Elwell r. Martin, 32 Vt. 217.
3 Walker v. Davis, 1 Gray, 506. And ^ Wallace v. Mor-se, 5 Hill, 391, and
see Fitts v. Hall, 9 N. H. 441. cases cited. But the rule appears
* Badger v. Phinney, 15 Mass. 359. otherwise in Indiana. Root i'. Steven-
6 Shaw V. Coffin, 58 Me. 254 ; Elwell son's Adm'r, 24 Ind. 115.
V. Martin, 32 Vt. 217. i» Mathews v. Cowan, 59 111. 341.
642
CHAP. IV.] THE INJURIES AND FRAUDS OF INFANTS. § 425
distinct, wilful, and positive wrong of itself, then, although it
may be connected with a contract, the infant is liable.^
§ 425. Same Subject ; Infant's Fraudulent Representations as
to Age, &c, — The plea of infancy has long been considered,
both in England and this country, a good defence to an action
for fraudulent representation and deceit. Thus, the rule is, that
an infant who falsely affirms goods to be his own, and that he
had a right to sell them, and thereby induces the plaintiff to
purchase them, is not responsible.^ For the plea of infancy, as
it is sometimes said, will prevail when the gravamen of the
fraud consists in a transaction which really originated in con-
tract.^ Still more frequently has it been held that for a false
and fraudulent representation that he was of full age, there is
no remedy against the infant ; whether money were advanced
or goods intrusted to him on the strength of such representa-
tion.^ The reader must reconcile the sense of these rules with
some of the foregoing cases as best he may. If anything be
needed to show the inadequacy of common-law remedies for
frauds and wilful misrepresentations, it is just such maxims as
these, which have been perpetuated from the old books.
Upon common-law principle it may well be said that while
an infant's false representation of full age or other material
fraud may constitute a separate cause of action, as for a tort,
it will not render his contract valid so as to estop him from
avoiding it.^ The result is circumlocution and uncertainty,
oftentimes in trivial matters.
Chancery, handling its weapons with more freedom, is accom-
plishing results in this respect more widely useful. The doctrine
of the English equity courts appears to have been, for years, that
1 Fitts V. Hall, 9 N. H. 441 ; Prescott 184 ; Conroe v. Birdsall, 1 Johns. Cas.
V. Norris, 32 N. H. 101. 127 ; Merriam v. Cunningham, 11 Gush.
'■2 Grove ;;. Nevill, 1 Keb. 778; 1 40; Brown v. McCune, 5 Sandf. 224 ;
Addis. Torts, G61 ; Prescott v. Norris, Carpenter v. Carpenter, 45 Ind. 142.
32 N. H. 101 ; Morrill v. Aden, 29 Vt. * Carpenter v. Carpenter, 45 Ind.
465. But see Word v. Vance, 1 Nott & 142 ; Conrad v. Lane, 26 Minn. 389 ;
M'Cord, 197. Heath v. Mahoney, 14 N. Y. Supr. 100 ;
3 Gilson V. Spear, 38 Vt. 311. Studwell v. Sliapter, 54 N. Y. 249. And
* Johnson ;-. Pye, 1 Sid. 258; Price see Whitcoml) v. Joslyn, 51 Vt. 79;
V. Hewett, 8 Exch. 146; s. c. 18 E. L. Hughes v. Gallans, 10 Phila. 618.
& Eq. 522; Burley v. Russell, 10 N. H.
643
§ 425 THE DOMESTIC EELATIONS. [PART V.
where payment is made to one falsely representing himself as
an infant, this is a discharge for the sum paid ; but that where
there was no such misrepresentation the trustee still remains
liable ; the mere belief that one was of age, of course, affording
no ground of justification.^ An English bankruptcy case of
recent date carries the principle still farther; far enough to
startle those who have reposed upon the assurance that the
ancient judgments " will stay forever." A young man, who
from his appearance might well have been taken to be more
than twenty-one years of age, engaged in trade, and wished to
borrow or to obtain credit, and for the purpose of doing so rep-
resented himself to the petitioner as of the age of twenty-two,
expressly and distinctly. It was held that, whatever the lia-
bility or n on -liability of the infant at law, lie had made himself
liable in equity to pay that debt.^ But in a somewhat later
case, not inconsistent with these others, it was held that an
infant's settlement upon his wife might be avoided by him on
arriving at majority, notwithstanding there was some evidence
that he fraudulently misstated his age to her solicitor ; the fact
being, however, that she, a widow of thirty-two, knew per-
fectly well that he was under age, and was not misled by his
representations.'^
The result of these late English decisions is to reopen in that
country the whole subject of an infant's liability on his fraudu-
lent misrepresentations ; and considerable uncertainty appears
to pervade the latest common-law decisions in that country,
1 Overton v. Bannister, 3 Hare, 503 ; rest only upon moral grounds cannot
Stikeman v. Dawson, 1 De G. & S. 90. be enforced in cliancery. Some wrong
2 In re Unity and Banking Associa- or injury to tlie party complaining must
tion, 3 De G. & J. 63 (1858). Lords be shown." He further observes : "The
Justices Bruce and Turner concurred privilege of infancy i.s a legal privilege.
in this opinion, both expressing some On the one hand, it cannot be used by
reluctance in giving the judgment. infants for the purposes of fraud. On
3 Nelson ?'. Stocker, 4 De G. & J. 458 the other hand, it cannot, I think, be
(1859). Lord Justice Turner, comment- allowed to be infringed upon by per-
ing upon the case, said : " There can sons who, knowing of the infancy,
be no doubt that it is morally wrong in must be taken also to know of the
an infant of competent age, as it is in legal consequences which attach to it."
any other person, to make any false lb. p. 465. See Inman v. Inman, L. R.
representation whatever; but the ob- 15 Eq. 260.
servance of obligations or duties which
644
CHAP. IV.] THE INJURIES AND FRAUDS OF INFANTS. § 426
wiiich incidentally bear upon the subject.^ Whether the new
or the old doctrine is in the end to prevail, it is too early yet to
say ; but a collision has come, towards which equity and the
common law were fast tending. Much, however, depends upon
the position in which the infant's liabilities are presented in
court.^
§ 426. The Same Subject. — The civil-law doctrine is clearly
that if a minor represents himself of age, and from his person
he appears to be so, any contract made with him will be valid ;
and the law protects those who are defrauded, not those who
commit fraud.^ And such was the Spanish law as formerly
prevalent in our Southwestern States.* In a Maryland case,
too, we find the suggestion that if an infant forms a partnership
with an adult he holds himself out fraudulently to the world.^
In Texas, the fraudulent representations of an infant are binding
upon him.^ Intimations are sometimes found in the courts as
to gross frauds which might bind an infant.' And in Kentucky,
not long since, the court refused to allow a deed made by a wife
and her husband to be avoided on the ground of the wife's in-
fancy, when, to induce the innocent purchaser to take the land,
she and her husband had made oath before a magistrate that to
the best of their knowledge and information she was more than
twenty-one years old. This was a righteous decision.^ In some
^ See De Roo v. Foster, 12 C. B. in its civil-law, common-law, and Eng-
N. s. 272 (1862); Wright v. Leonard, lish equity bearings (1870).
11 C. B. N. s. 258. 5 Kemp v. Cook, 18 Md. 1.30. The
'^ Thus, very recently, where an in- remark is quoted as that of Lord
fant had obtained a lease on a false Mansfield, in Gibbs v. Merrill, .3 Taunt,
representation that he was of full age, 307, but this must be an error, as no
it was held in chancery that the lease such language appears in the case re-
must be declared void and possession ferred to, while the decision went upon
given up, and the infant enjoined from a totally different ground. As to a
parting with the furniture; but tliat partnership where the infant deceived
the infant could not be made liable for the adult concerning his age, see 59
use and occupation. Lempriere i'. Md. .344.
Lange, L. R. 12 Ch. D. 675. 6 Kilgore v. Jordan, 17 Tex. 341 ;
3 1 Dom. pt. 1, b. 4, tit. 6, § 2. Carpenter v. Pridgen, 40 Tex. 32.
* See able discussion of this sub- " Stoolfos r. Jenkins, 12 S. & R.
ject by Hemphill, C. J., Kilgore v. 899 ; 2 Kent, Com. 241. And see Ster-
Jordan. 17 Tex. 341. There is not ling v. Adams, 3 Day, 411 ; Davies, J.,
another American case to be found in Henry v. Root, 23 N. Y. 544.
where this subject is so fully discussed, * Schmitheimer v. Eisemen, 7 Bush,
298.
645
§ 427 THE DOMESTIC RELATIONS. [PART V.
Other States an infant nearly of age who entraps another into a
purchase or mortgage loan by -direct participation in a fraud as
to his or her age, has been estopped in chancery from attacking
the title to the land afterwards on that ground, and thereby
perpetrating a fraud.^ Beyond this there seems no special au-
thority for asserting that the American doctrine on this subject
is unsettled, or that it is likely to feel the change now going on
in the English courts.^ In fact, an equity court in North Caro-
lina refused, not many years since, to compel specific perform-
ance of an infant's contract on the alleged ground of fraudulent
misrepresentation of his father and himself, that he was of full
age ; following the old common-law rule instead of opposing it.^
And in many States still an infant will not thus be debarred
from disaffirming his conveyance at majority.*
But our American statutes sometimes quicken the infant's
sense of honor. Thus, in Iowa, it is enacted that one who, in
selling real estate, represents himself to be of full age, and in-
duces the grantee to buy on the strength of that representation,
cannot afterwards disaffirm his contract on the ground of in-
fancy.^ It would be well if similar statutes were enacted in
every State. We assume, of course, in general, that the infant
thus misrepresenting has reached years of discretion and in
appearance might be taken for an adult.
§ 427. Injuries, &c., suffered by Infants. — Second. As to in-
juries and frauds suffered by infants. Infants have a right to
sue, by guardian or next friend, to recover damages for injuries
done to person or property by the tortious acts of another ; and
1 Ferguson v. Bobo, 54 Miss. 121. Rice v. Boyer, 108 Ind. 472 ; cf. Baker
Here the fraud appears to have been v. Stone, 13G Mass. 405, where the in-
perpetrated without any positive mis- fant did not misrepresent, but merely
Statement as to age. knew that the adult supposed him to be
2 But in several of the latest Ameri- of age. In New Jersey an infant ward
can cases the disposition is strong to who fraudulently procured a settlement
hold an infant apparently of age and from his guardian by a similar false-
in fact nearly so, liable for the conse- hood was not allowed to repudiate
quences of his fraudulent misrepresenta- that settlement on attaining majority,
tion on that point. In Indiana an infant Hayes v. Parker, 41 N. J. Eq. 630.
wlio by falsely stating himself to be of ^ Dibble v. Jones, 5 Jones Eq. 389.
age obtained property for which he * Sims i'. Everhardt, 102 U. S. Supr.
gave his worthless note and mortgage, 300.
is held liable to an action for deceit. 5 Prouty v. Edgar, 6 Iowa, 353.
646
CHAP. IV.] THE INJURIES AND FRAUDS OF INFANTS. § 428
the ordinary principles of law, in this respect, as to contributory-
negligence, apply to them as to adults.^ But by reason of their
tender years, their rights and remedies receive a somewhat
peculiar treatment in the courts, as we proceed to show.
§428. Same Subject; Child's Contributory Negligence. —
Thus it is held that a child eight years old may sue one who
sells and delivers to him a dangerously explosive substance,
such as gunpowder, though upon his own request.^ Such ac-
tions are grounded upon the ignorance of the child and the
negligence of those who fail to regard it.
The principle involved is precisely that of the case where
a man delivers a cup of poison to an idiot or puts a razor
into the hand of an infant. The child uses that ordinary
care of which he is presumed capable at his age ; and though
this may amount, logically, to actual carelessness as applied
among adults to the ordinary transactions of life, his right of
action is not thereby forfeited.^ Whoever, then, would avoid
a suit like this, must regulate his own discretion to suit the
party with whom he deals, and act at all times with befitting
prudence.
But there are cases where the child himself may have no
right of action for injuries received, — as if he be technically
a trespasser, and meddling with property which does not belong
to him. Of this rule a recent English case affords an example,
where a boy, four years old, coming from school, saw a machine
exposed for sale in a public place, and by direction of his
brother, seven years old, placed his fingers within the machine
whilst another turned the crank and thereby crushed his fin-
gers.* The court held that no action would lie. But if the
trespass of the infant does not substantially contribute to pro-
duce the injury, it would appear that no defence can be legally
1 1 Addis. Torts, 712. The youth that he has not rescinded the contract
of a person injured does not extend the or returned the property received,
liability of the person causing the in- Shuford v. Alexander, 74 Ga. 293.
jury, for the tortious acts of his ser- 2 Carter v. Towne, 98 Mass. 567.
vants. Sherman v. Hannibal R., 72 s Byrne n. New York Central R., 83
Mo. 62. And see post, Part VI. c. 4. N. Y. 620.
Where a suit is prosecuted on an * Mangan v. Atterton, L. R. 1 Ex.
infant's behalf to recover for fraud 239. And see Hughes v. McFie, 2 H.
practised upon him, it is no defence & C. 744; 33 L. J. (Ex.) 177.
647
§ 429 THE DOMESTIC RELATIONS. [PART V.
interposed on this ground.^ Thus the mere fact that a youth
gets upon a raih'oad car intending to ride without paying fare
is held not to bring the case within the rule of contributory
negligence.^
§ 429. Same Subject ; Contributory Negligence of Parent, Pro-
tector, &c. — Another and the more common class of exceptions
consists of cases where the parents or other persons having
charge of the child have been guilty of negligence. The rule
of New York, Massachusetts, Illinois, and some other States
is that a child too young to have discretion for himself cannot
recover if his protector fails to exercise ordinary care, but that
he may if he uses such care as is usual with children of the
same age, and the protector exercises ordinary care besides.^
The English rule, as formerly understood, does not take into
consideration the circumstance of the protector's negligence at
all.* And in Vermont, Connecticut, Ohio, and Pennsylvania,
the child's exercise of ordinary care appears alone to be re-
garded.^ The latest English cases, however, lean toward the
doctrine first above stated. Thus, when the child, at the time
of injury, was in the care of his grandmother, at a railroad
station, where she had purchased tickets for both, it was held
that the plaintiff was so identified with his grandmother that,
by reason of her negligence, no suit was maintainable against
the company.^
Where carelessness of a mother or other protector is alleged,
in authorizing an exposure of the child, it may sometimes be
said that the father or proper parent or guardian had conferred
1 See Daley v. Norwich & Worces- Lehman v. Brooklyn, 29 Barb. 236 ;
ter R. R. Co., 26 Conn. 59L City of Chicago v. Starr, 42 111. 174.
2 Kline V. Central Pacific R. R. Co., * Lynch v. Nurdin, 1 Q. B. 29.
37 Cal. 400. See Townley v. Chicago Doubted, however, in Lygov. Newbold,
R., 53 Wis. 626. 9 Exch. 302.
3 Wright V. Maiden & Melrose R. ^ Robinson v. Cone, 22 Vt. 213;
Co., 4 Allen, 283; Hartfield v. Roper, North Penn. R. R. Co. v. Mahoney, 57
21 Wend. 617 : Downs v. New York Penn. St. 187 ; Bellefontaine, &c. R. R.
Central R. R. Co., 47 N. Y. 83; Kerr Co. v. Snyder, 18 Ohio St. 399; Daley
V. Forgue, 54 111. 482; Schmidt v. Mil- v. Norwich & Worcester R. R. Co., 26
wavikie, &c. R. R. Co., 23 Wis. 186; Conn. 591. But see Bronson v. South-
O'Flahcrty v. Union R. R. Co., 45 Mo. bury, 37 Conn. 199.
70 ; Baltimore, &c. R. R. Co. v. State. 30 « Waite v. North-Eastern R. R. Co.,
Md. 47 ; Munn v. Reed, 4 Allen, 431 ; 5 Jur. N. s. 936.
648
CHAP. IV.] THE INJURIES AND FRAUDS OF INFANTS. § 429
no authority.^ To take common illustrations of this doctrine.
Allowing a child seventeen mouths old to be in the public
street without a suitable attendant is held to be a want of ordi-
nary care on the parents' part, and if the child be run over
there is no remedy .^ But there are circumstances under which
it would be found that the parent or protector of such a child
was exercising ordinary care ; while the child himself would be
treated, doubtless, as incapable of personal negligence at so
early an age, so as to defeat his right of action.^ Suftering a
boy eight or ten years old to play on the street after dark is not
necessarily negligence on the protector's part.* And even as
to children four years of age or thereabouts, or perhaps younger,
it is not expected that parents who have to labor for themselves
and cannot hire nurses are to be without remedy for themselves
or their children every time the child steps into the street un-
attended. What would be expected of the custodians of these
tender beings is a degree of care or diligence suitable to the
capacity of the child ; in other words, ordinary care and pru-
dence in watching and controlling the child's movements.^ As
to a child some twelve years of age travelling with his mother,
and injured in stepping between cars, the right to sue is not
necessarily defeated for the reason that she permitted him to
go into another car from that where she was sitting, and he did
so.*^ In fact, the circumstances of each case are fairly to be
weighed by the jury. No child capable of running about can
be kept tied up in the house and subjected to constant watch.
The rule is reasonably and beneficially applied; and the cir-
cumstances are in general for the juryJ
1 Pierce v. Millay, 62 111. 133. ^ xhe principle may be further illus-
2 Kreip v. Wells, 1 E. D. Smith, 74. trated by an Illinois case. A heavy
8 See Mangani v. Brooklyn R. R. counter, some eighteen feet long and
Co., 38 N. Y. 455 ; Schmidt v. Milwau- three feet high, which had been placed
kie, &c. R. R. Co., 23 Wis. 186. across tlie sidewalk in one of the prin-
* Lovett y. Salem, &c. R. R. Co., 9 cipal thoroughfares of Chicago, re-
Allen, 557. mained so for two or three weeks,
* Citj' of Chicago v. Major, 18 111. when some children were climbing
360; O'Flaherty v. Union R. R. Co., 45 upon it and thereby caused it to fall
Mo. 70; Baltimore, &c. R. R. Co v. over. One of the children, six years
State, 30 Md. 47. old, was injured and died, and the par-
® Downs V. N. Y. Central R. Co., 47 ents sued the city, under statute, for
N. Y. 83. damages. The court held, upon the
649
§ 430 THE DOMESTIC KELATIONS. [PART V.
Causa proxima non reviota spectatur is the maxim usually
applied in cases of torts, whether the plaintiff be infant or
adult. But where the tort is occasioned by the negligence of
one person, the infant is not debarred of his right to sue the
other party who shared in it. As where a child too young to
take care of himself — there being, we shall suppose, no negli-
gence on the part of the parent — is in danger of being run
over by a steam-engine, and some stranger catches him up,
meaning to save his life, and imprudently rushes over the track
and falls with the child. An accident so occasioned might,
under some such circumstances, give a right of action against
either the stranger or the railroad company, or against them
jointly.i
§ 430. Suits of Parent and Child for Injury ; Loss of Services
reckoned. — We have already seen that a parent may sue for
damages caused his child by another's wrong, as for loss of his
child's services during the period of minority, since such ser-
vices belong to the parent.^ But for damages to the person
involving a permanent injury reaching beyond one's minority,
the minor is entitled in his own right to recompense for such
prospective loss.^
state of facts before them, that the v. Forgue, 54 111. 482, limiting the rule,
action would not lie because there was Perhaps the course most consistent
negligence sliown on both sides, — on with the latest authorities is to leave
the part of the city in allowing the the question of negligence, so far as
counter to remain in that situation, possible, with the jury, upon the state
and on the part of the parents in per- of facts presented. See, further, Weeks
mitting the child, at his age, to roam v. Pacific R., 56 Cal. 513; Murley v.
the crowded thoroughfares of the city Roche, 130 Mass. 330.
at a great distance from his home. ^ See North Penn. R. R. Co. v. Ma-
The negligence on the part of the city honey, 57 Penn. St. 187. The views
was less than that attributable to the expressed in this case may not meet, in
child's parents, and therefore there all respects, the concurrence of other
could be no recovery. City of Chicago courts ; but the principle extracted in
j». Starr, 42 111. 174. In this case it was the text seems to the writer a correct
further suggested that the degree of one. See further, as to slander of an
carelessness is not to be judged from a infant, Hopkins v. Virgin, 11 Bush,
single fatal accident ; but tliat the 677. As to injury done to a minor
question is rather what would have servant, see De Graff v. N. Y. Central
been the course of a prudent person R., 76 N. Y. 125; Cooper v. State, 8
prior to the accident. And the habit- Baxt. 324 ; poxt, Part VI.
ual carelessness of the parents in al- ^ Part III. c. 4, supra.
lowing the child to go about unattended ^ Central R. R. v. Brimson, 64 Ga.
was considered material. But see Kerr 475, and cases cited.
650
CHAP, v.] RATIFICATION, ETC., OF CONTRACTS. § 432
§ 431. Arbitration, Compromise, and Settlement of Injuries
committed or suffered by Infants. — While an iufant is liable
for torts, it does not follow that his contracts in compensation
for torts are binding. In fact, his submission to an award, and
notes given or money paid in pursuance thereof, would follow
the principle of void and voidable and binding contracts ; ^ and,
as we may presume, a note or other security given to settle
damages may not be sued upon without inquiry into its con-
sideration, but it shall be good to the same extent as the tort
which constituted its basis.^ And on the other hand, where
he releases or compromises for any injury himself has sustained,
the same rule applies.^ The parent cannot sue, as such, for the
child's injuries ; neither can he make a binding compromise,
except as to his own demand upon the defendant.*
CHAPTEE V.
KATIFICATION AND AVOIDANCE OF INFANT'S ACTS AND
CONTKACTS.
§ 432. Infants may ratify or disafBrm Voidable Acts and
Contracts. — That indulgence which the law allows infants, to
secure them from the fraud and imposition of others, can only
be intended for their benefit, and therefore persons of riper
years cannot take advantage of such transactions. The infant
may rescind or disaffirm his own deed or contract ; but the
adult with whom he deals is held bound meantime, unless the
transaction be void, and not voidable ; ^ or one of those contracts
1 Hanks v. Deal, .3 M'Cord, 257; Passenger R. R. Co. v. Stutler, 54 Penn.
Pitcher v. Turin Plank Road Co.. 10 St. .375. But see Merritt v. Williams,
Barb. 436; Ware v. Cartledge, 24 Ala. 1 Harp. Ch. 306.
622. 5 Smith v. Bowen, 1 Mod. 25; 2
2 See Ray v. Tubbs, 50 Vt. 688; Kent, Com. 236; Warwick v. Bruce, 2
supra, § 414. M. & S. 205 ; Brown v. Caldwell, 10
3 Baker v. Lovett, 6 Mass. 78. S. & R. 114 ; supra, c. 2.
* See Loomis v. Cline, 4 Barb. 453 ;
651
§ 433 THE DOMESTIC RELATIONS. [PART V.
which bind an infant from the outset.^ And since, as we have
observed, his conveyance is not to be decisively repudiated or
ratified till his minority ends, while his personal property trans-
actions or personal transactions may be avoided any time
though not ratified,^ the act of ratifying or affirming bears
differently in its application.
But the infant may confirm his voidable contract on arriving
at full age ; and if he does so by such writings, words, or acts
as amount to a legal ratification or affirmance, he will become
liable then and thereafter. But what is in law a sufficient
ratification or affirmance and what, too, is a sufficient avoidance,
remain to be considered.
§ 433. Rule affected by Statute ; Lord Tenterden's Act ;
Other Statutes. — Much of the discussion on this point is now
dispensed with, or rather diverted, in England, by a short stat-
ute to the effect that " no action shall be maintained whereby
to charge any person upon any promise made after full age to
pay any debt contracted during infancy, or upon any ratifica-
tion, after full age, of any promise or simple contract made
during infancy, unless such promise or ratification shall be
made by some writing, signed by the party to be charged there-
with." 3 This statute is known as Lord Tenterden's Act. Here
is a clear, precise, and definite rule ; and any apparent want
of equity is compensated by the certainty with which a very
troublesome subject is managed, one which has so constantly
led to unprofitable litigation. The same or similar provisions
are to be found in the laws of some of our States.*
But even statutes will raise legal difficulties. And the diffi-
culty which arises under this particular act is to distinguish
ratification from a new promise. What is meant by a " ratifi-
cation " in the words of this statute ? The Court of Exchequer,
some years since, admitting, in the course of argument, that the
statute made a distinction between ratification and new prom-
ises, gave it as their opinion that any act or declaration which
recognizes the existence of a promise as binding, is a ratification
1 Supra, c. 3. * See Thurlow v. Gilmore, 40 Me.
2 Supra, § 409. 378.
3 Stat. 9 Geo. IV. c. 14, § 5 (1828).
652
CHAP, v.] RATIFICATIOiSr, ETC., OF CONTRACTS. § 433
of it ; and that the statute " ratification " goes so far as to com-
prehend such a ratification as would make a person liable as
principal for an act done by another in his name.^ And hence
certain letters written by the defendant in reference to payment
of his debt out of his money in the hands of a third party were
held binding. More lately this definition of ratification was
reconsidered by the same court in another case, where the cor-
respondence was over a dishonored bill of exchange, and another
person, not the infant, was to be primarily liable ; and the
judges were divided in opinion. But the disposition seemed to
be to define ratification anew, as a willing admission that the
party is liable and bound to pay the debt arising from a con-
tract which he made when an infant.^ Still later a man, being
of age, signed the following statement at the foot of an account
of the items and prices of goods furnished to him while an in-
fant by the plaintiff : " Particulars of account to the end of
1867, amounting to £162 lis. 6d. I certify to be correct and
satisfactory." It was held that this was not a sufficient ratifi-
cation under the statute, because these words did not really admit
the debt to be a debt existing and binding upon the defendant.^
Some statutes regard the allowance of a reasonable time only
after attaining majority for disaffirmance of a contract or con-
veyance made in infancy, requiring the infant both to disaffirm
and to make restitution.* Others seek to prevent sales of the
minor's property for some time after he reaches majority.^
1 Harris r. Wall, 1 Exch. 122. of an infant's promise to marry, see
2 Mawson v. Blane, 10 Exch. 206; Ditcham v. Worrall, 5 C. P. I). 410;
26 E. L. &, Eq. 560. See, f urtiier, Northcote v. Doughty, L. R. 4 C. P. D.
Smith, CoTitr. 287. Lord Ellenborough 385. As to ratifying as "a debt of
considered it more correct to say, in honor," see Maccord v. Osborne, 1
general, that the infant makes a new C. P. D. 569. And see In re Onslow,
promise after he comes of age. Cohen L. R. 10 Ch. .37.3. The inclination of
V. Armstrong, 1 M. & S. 724, As to these late English cases is to insist
wliat is a sufficient compliance with upon something like a fresh promise in
the statute, see Hartley r. Wharton, 11 order to bind.
Ad. & El. 904; Hyde v. Johnson, 2 3 Rowe c. Hopwood, L. R. 4 Q. B. 1.
Bing. N. C. 778 ; Hunt v. Massey, 5 B. * Wright ?•. Germain, 21 Iowa, 585 ;
& Ad. 902. Jones v. Jones, 46 Iowa, 466 ; 64 Iowa,
See also Infants' Relief Act of 1874 315. Disaffirmance under the code
(-37 & 38 Vict. c. 62). As to what con- should be within a reasonable time.
stitutes ratification or a fresh promise 55 Iowa, 205; ;'i9 Iowa, 670.
upon majority, under English statutes, 5 SouUier i'. Kern, 69Penn. St. 16.
653
§ 434 THE DOMESTIC RELATIONS. [PART V.
§ 434. Rule Independent of Statute ; American Doctrine. —
Independently of all statutes, however, the question has been
asked again and again, what language and what conduct on the
part of the infant attaining to majority will sufifice to give bind-
ing force to his acts originally voidable. The American cases
on this point are very numerous. And it must be confessed
that the more this subject has been discussed, the less it appears
to be understood. Two principles are evidently in conflict : the
one, that an infant should be protected against his own impru-
dence while under a disability ; the other, that bona fide credi-
tors ought not to be cheated. Some cases have given more
prominence to the first principle, others to the second.
There cannot be much doubt that at the time Lord Tenter-
den's Act was passed, the English rule was, that an infant
might, by his general conduct, independently of a precise prom-
ise or new contract, on his part, render himself liable for his
contracts made while an infant.^ The statute was passed to
change this rule. On that point we need not dwell. This does
not bind American courts, it is true, for they had adopted, in
many instances, another rule of the common law to which they
were at liberty to adhere, in spite of the later English decisions ;
since it was the rule our ancestors brought over with them.
Now, what is the American doctrine ? We take a case de-
cided some years ago in Massachusetts, where an infant had
made a promissory note, and after majority admitted several
times that he owed the debt, and said he would pay it when he
could. Says the court : " It has long been settled that a direct
promise, when of age, is necessary to establish a contract made
during minority, and that a mere acknowledgment will not
have that effect." ^ We take still another, decided in New
York only a little later. Says a judge of the Court of Appeals,
after a most exhaustive review of the cases : " I think that the
course of decision in this State authorizes us to assume that the
narrow and stringent rule, formerly enunciated, that to establish
the contract, when made in infancy, there must be a precise and
positive promise to pay the particular debt, after attaining ma-
1 See Goode v. Harrison, 5 B. & Aid. 2 Proctor v. Sears, 4 Allen, 95 (1862),
147 ; Smith, Contr. 283, 284. per .Metcalf, J.
654
CHAP, v.] EATIFICATION, ETC., OP CONTRACTS. § 435
jority, is not sustained by the more modern decisions." ^ Time
has not with us lessened the force of Chancellor Kent's obser-
vation, many years ago, that " the books appear to leave the
question in some obscurity, when and to what extent a positive
act on the part of the infant is requisite." ^
It may be remarked that a great change was gradually de-
veloped in the law of infancy, by making various contracts
and transactions voidable which before were deemed void.^
This might reasonably be thought to have introduced a new
element into the consideration of such cases; the result tend-
ing towards freedom in the courts, and enabling them to re-
pudiate artificial refinements and do substantial justice. It
certainly throws upon the modern courts a greater responsi-
bility than formerly in ruling between complete and incomplete
ratification ; or (if legal precision requires another expression),
in determining whether a new promise has passed from the per-
son after attaining full age. But this change has not always
been kept in view. In New York the modern doctrine is that
ratification or confirmation of the contract made in infancy will
bind the party if it take place after his coming of age ; that a
new promise, positive and precise, equivalent to a new contract,
is not now essential ; but that a ratification or confirmation of
what was done during the minority is sufficient to make the
contract obligatory.* And it is well observed that the words
" ratify and confirm " necessarily import that there was some-
thing in existence to which the ratification or confirmation
could attach, entirely ignoring therefore the notion that an
infant's obligations or contracts were extinguished by the state
of infancy.^ But it must be borne in mind that in some otlier
States the rule is quite different. So that we have nothing
which may safely be pronounced the American doctrine upon
this subject.
§ 435. The Same Subject ; Instances. — It seems settled that
silence for an unreasonable time, taken in connection with other
facts, such as using the property purchased, retaining possession
^ Per Davies, J., Henry v. Koot, 33 ^ See c. 2, supra.
N. Y. 545 (1865). * Henry v. Root, 33 N. Y. 526.
2 2 Kent, Cora. 237. 6 7^,
655
§ 435 THE DOMESTIC RELATIONS. [PART V.
of it, selling or mortgaging it, or in any way converting it to
the infant purchaser's own use, would be sufficient ratilication
to bind the infant after reaching manhood.^ As where a minor
bought a yoke of oxen, for which he gave his note, and after
arriving at full age converted the oxen to his own use and re-
ceived the avails.^ Mere lapse of time, it is true, will not
usually amount to confirmation, unless the complete bar of
limitations is fulfilled.^ But a brief lapse of time, in connec-
tion with other circumstances making the infant's position
inequitable if he means later to disaffirm, may amount to con-
firmation.* And cases are not wanting to establish the position
that ratification will be inferred from tacit, assent and delay
under circumstances where silence is not excusable, where
there was full knowledge and opportunity to assert one's rights,
and the party whose title might have been disputed was per-
mitted to go on incurring expense on the faith of it.^
Yet that the cases are somewhat conflicting and difficult in
this respect to be reconciled will aj^pear from the citation of a
few. In Alabama, an infant, ten days before majority, pur-
chased a note and drew an order upon a third person in pay-
ment, and received notice of nonpayment. It was held, in a
suit several years after, that his failure to renew the note and
disaffirm warranted the conclusion that he intended to abide by
it.^ Still more rigidly was the same doctrine enforced in an
earlier New York case." Part-payment, or even promise of
part-payment, may operate as confirmation.^ So may autlior-
1 See note Am. editor in 16 E. L. & 3 Wallace v. Latham, 52 Miss. 291 ;
Eq. 558 ; Lawson ('. Lovejoy, 8 Me. 405 ; Prout v. Willey, 28 Mich. 164. Cases
Boyden v. Boyden, 9 Met. 519; Che- cited in 31 Minn. 468.
shire v. Barrett, 4 M'Cord, 241 ; Boody * Cresinger v. Welch, 15 Ohio, 156;
r. McKenney. 23 Me. 517 ; Robinson Strong. J., in Irvine v. Irvine, 9 Wall,
r. Hoskins, 14 Bush, 393. Against 617 ; Goodnow v. Empire Lumber Co.,
third parties averment of possession 31 Minn. 468.
may be sufficient averment of ratifi- ^ See post, § 438 ; Allen v. Poole, 54
cation. 33 La. Ann. 102. Miss. .323.
■2 Lawson v. Lovejoj', 8 Me. 405. •» Thomasson r. Boyd, 13 Ala. 419.
And see Alexander v. Heriot, 1 Bail. ^ Delano v. Blake, 11 Wend. 85.
Ch. 223; Deason r. Boyd, 1 Dana, 45 ; » Little v. Duncan, 9 Rich. Law,
Vandevort's Appeal, 43 Penn. St. 462; 55; Stokes v. Brown, 4 Chand. (Wis.)
Stern v. Freeman, 4 Met. (Ky.) 309; 39.
Belton V. Briggs, 4 Desaus. 405.
656
CHAP, v.] RATIFICATION, ETC., OF CONTEACTS. § 435
ity given to an agent to pay, though the agent does notliing.^
But declarations of affirmance by one purporting to act as the
attorney or solicitor of the late infant do not amount to ratifica-
tion if his authority be not proved.^ Submitting the question
of liability after coming of age to arbitration or offering to com-
promise does not amount to ratification.^ But letters indicating
intent to abide by a former award may ; as well as the enjoy-
ment of its benefits.'* So may permitting an action growing
out of the transaction to go by default, or a bill in equity to be
taken as confessed.^ A promise to settle by note against a
third party is held sufficient.^ So is a promise to settle by
work.' Nor do the recent cases seem to require that a promise
to settle should be very precisely expressed. The mere reten-
tion of consideration-money received during infancy appears to
amount to ratification in California ; ^ though this is not the
general rule elsewhere.^ Keeping and using an article pur-
chased during infancy, with equivocal expressions of intention
may bind the infant so that he cannot return it afterwards to
the vendor. So may a sale of the article with full knowledge
of the fact of purchase.^" So may the reception and substantial
enjoyment of the benefits of the transaction after reaching ma-
jority, such as collecting dividends or interest,^^ or receiving,
the principal, or other act totally inconsistent with an honest in-
tention to disaffirm. A verbal promise is sufficient to bind ; '^^'
while a contract to work is ratified by continuance in the em-
ployer's service for a month after attaining full age.^^ Plea of
the execution of a note, in defence of a suit in assumpsit, is
held to be confirmation of the note itself. i* Slight words, im-
porting recognition and confirmation of the promise, have been.
1 Orvis V. Kimball, 3 N. IT. 314. » Benham v. Bishop, 9 Conn. 3.30.
2 Carrell v. Potter, 23 Mich. 377. See § 446, post, as to restoring the con-
8 Benham v. Bisliop, 9 Conn. 3-30; sideration.
Bennett v. Collins, 52 Conn. 1. ^'^ Shropshire v. Burns, 46 Ala. 108.
4 Barnaby ?;. Barnahy, 1 Pick. 221; " Huth v. Carondolet R., 56 Mo.
Jones V. Phoenix Bank, 4 Selri. 228. 202 ; Price v. Winter, 15 Fla. 66 ; Cor-
5 Terry v. McClintock, 41 Mich, win v. Shoup, 76 111. 246.
492. 1-2 West V. Penny, 16 Ala. 186 ; Mar-
6 Taft V. Sergeant, 18 Barb. 320. tin r. Mayo, 10 Mass. 137.
■^ Edgerly v. Shaw, 5 Post. 514. ^ Forsyth v. Hastings, 27 Vt. 646.
8 Hastings v. Dollarhide, 24 Cal. 195. " Best v. Givens. 3 B. Monr. 72.
42 657
I 435 THE DOMESTIC RELATIONS. [PART V.
treated as sufficient ; or, at least, as sufficient for a jury to con-
sider. ^ And, according to a recent decision of the Supreme
Court of the United States, it is a question for the jury and
not for the court to decide, whether the evidence submitted in
any case shows an affirmance or not, if there be any evidence
tending to show it.^
On the other hand, are numerous decisions which seem to
bear against the creditor. Says a Massachusetts judge in an
early case : " By the authorities a mere acknowledgment of the
debt, such as would take a case out of the statute of limitations,
is not a ratification of a contract made during minority." ^ Yet
the much-quoted distinction there taken between " acknowledg-
ment " that a debt is due, and verbal " ratification and con-
firmation " is either exceedingly subtile, or at the present day
frequently misapplied. The distinction further developed leads,
as we find, to the conclusion that where one says he owes the
debt and has not the means of payment, but will pay as soon
as able, or words to this effect, this is only an acknowledgment,
and not binding.* Such decisions do not always support the
explanation sometimes given, that the American cases proceed
upon the ground of intention to ratify ; though there are doubt-
less cases which support so reasonable a view.^ In a well-con-
sidered Connecticut case the distinction is thus drawn : that the
infant's contract to pay money not for necessaries, cannot as a
rule be ratified by any mere acknowledgment of indebtedness
after he becomes of age, since there should be an express prom-
ise to pay ; but that an exception arises where the infant
1 Hoit V. Undcrhill, 0 N. H. 436; Dana r. Stearns, ?> Cusli. 372 ; Smith?;.
Bay r. Gnnn, 1 Denio, 108 ; Wliitney Kelly, 13 Met. 309. And see note to 16
V. butch, 14 Mass. 457. E. L. & Eq. .558. The mere indorse-
2 Irvine v. Irvine, 9 Wall. 617, 628. nient on a minor's note of a receipt of
» Wliitney v. Dutch, 14 Mass. 460, money of date after the maker had at-
per Parker, C. J. tained majority, is not a sufficient rati-
4 See Proctor v. Sears, 4 Allen, 05 ; floation. Catlin v. Haddox, 49 Conn.
Thompson v. Lay, 4 Pick. 48; Ford v. 492. In a suit on such note, brought
Phillips, 1 Pick. 203; Hall v. Gerrish, 8 after the maker's majority, it will not
N. H.374; Goodsell «. Myers, 3 Wend, be presumed that the note M-as given
479; Wilcox v. Roath, 12 Conn. 550; for necessaries, nor that the consider-
Chandler v. Glover, 32 Penn. St. ation remains under the maker's con-
.509. trol ; this must he proved by the party
s See Thing v. Libhey, 16 Me. 55 ; who seeks to enforce it. lb.
658
CHAP, v.] RATIFICATION, ETC., OF CONTRACTS. § 436
received the consideration for which his promise was given,
and after he becomes of age still has it in his possession or
under his control, and in such a case it will be inferred from
his mere acknowledgment of indebtedness that he meant to
make himself liable.^
§ 43(3. The Same Subject; Conflicting Dicta. — What is it
that suffices to take a case out of the statute of limitations ?
" Either an express promise to pay, or an unqualified acknowl-
edgment of present indebtedness ; in which latter case the laiv
will imply a ptromise to pny." ^ What is ratification of a con-
tract ? So far as a definition may be hazarded, it is a voluntary
admission that one is liable and bound by the terms of an
existing though inchoate or imperfect contract. A debt is, of
course, created by contract express or implied. But some say
that there must always be a new contract made by the minor
on reaching majority. To hold that a new contract for pay-
ment is essential, differs certainly from ruling that ratification
and confirmation of an existing contract binds one who was
lately an infant. But once again such contracts of an infant
are called voidable. Does not the term " voidable " imply some-
thing still different, something which binds until expressly
repudiated ? And if so, how doubly inconsistent to exact a
specific promise to pay, over and above an admission of present
indebtedness. In truth, the law is here overburdened with its
own definitions ; judicial terms, inconsistent and varied, be-
wilder the judicial mind ; and thankless, indeed, must be the
task of refining upon distinctions which rest upon no rational
basis of difference.^
1 Catlin V. Haddox, 49 Conn. 492. ^ Lord Kenyon seems responsible
This statement assumes tliat tlic eon- for tlie doctrine that the case of in-
sideration which the infant retains is fancy differs in essence from that
a lioim fide and ample one, making it under the statute of limitations. He
inequitable to delay his decision to af- says : " In the case of an infant, I
firm or disaffirm while he holds the shall hold an acknowledgment not to
benefits. be sufficient, and require proof of an
2 See Gailey r. Crane, 21 Pick. 523 ; express promise to pay, made by the
Wakeman v. Sherman, 5 Scld. 91 ; infant, after he had attained that age
Marshall, C. J., in Clemenstine v. when the law presumes that he has
Williamson, 8 Cranch, 72; Story, J., discretion." Thrupp {-•. Fielder, 2 Esp.
in Bell v. Morrison, 1 Pet. 351. 628.
659
§ 437 THE DOMESTIC RELATIONS. [PART V.
§ 437. The Same Subject ; Summary of Doctrine. — The
writer makes no attempt to reconcile the numerous dicta of
the courts on this important subject. They are irreconcilable.
If American decisions themselves may be regarded as pointing
out a general rule, it seems to be this : that the mere acknowl-
edgment that a certain transaction constitutes a debt is insuffi-
cient to bind him lately an infant ; but that an acknowledgment
to the extent that he justly owes that debt, with equivocal ex-
pressions as to some future payment, may or may not be con-
sidered sufficient, though the better opinion is in favor of their
sufficiency ; that acts or omissions on his part, which are preju-
dicial to the adult party's interests, or evince his own intention
to retain the consideration and advantages of a contract made
during infancy, may be, especially when reasonable time has
elapsed, construed into a ratification, without an express
promise, the presumption of honorable motives being fair and
reasonable under such circumstances ; and finally, that a dis-
tinct, unequivocal promise, verbal or written, made after attain-
ing majority, is always sufficient, this apparently superseding
the former promise altogether.^ In cases of doubt, moreover,
it would seem to be better to treat the evidence presented as
constituting facts for the consideration of the jury, rather than
a question of law for the court to pass upon.
Some cases go even farther, and require an express repudi-
ation on the infant's part. But this is appropriate only to
certain transactions, and we are not justified in deducing there-
from a general principle that express repudiation is necessary
in all voidable contracts of an infant ; for the decisions cer-
tainly do not go to this length, whatever the dicta? Express
acts of disaffirmance or repudiation leave no doubt of intention
on this point ; and they, of course, suffice to avoid the contract
1 See American cases collected in Merriam e'. "Wilkins, 6N. H. 413; Jones
Am. editor's note to 16 E. L. & Eq. 558; v. Butler, .30 Barb. 641 ; Curtin v. Pat-
Bobo (.'. Hansen, 2 Bail. 114; Ack- ton, 11 S. & R. 305; Norris ;;. Vance,
erman ;;. Bunyon, 1 Hilt. (N. Y.) 58; 3 Rich. 164; Oswald v. Broderick, 1
Vaughan v. Parr, 20 Ark. 600; l?ich- Clarke (Iowa), -380.
ardson v. Boriglit, 9 Vt. 368 ; Hodges i\ 2 gpe Holmes v. Blogg, 8 Taunt. -39;
Hunt, 22 Barb. 1-50 ; State v. Plaisted, Richardson v. Boright, 9 Vt. 368 ; Kline
43 N. H. 413 ; Wright v. Steele, 2 N. H. v. Boebe, 6 Conn. 494 ; Hoit v. Under-
51 ; Conklin v. Ogborn, 7 Ind. 553 ; hill, 9 N. H. 439.
660
CHAP, v.] EATIFICATION, ETC., OF CONTRACTS § 437
made during infancy. As in a sale of his land where one gives
notice that he considers the bargain void, and offers to return
the consideration.! And so generally where the transaction is
such that the late infant must take the initiative or else forfeit
his right, being out of possession. There are many other ways
in which one may clearly disavow his intention of carrying into
effect the contract made during infancy ; and if the transaction
appears to have been made shortly before reaching majority,
and not to be disadvantageous to the infant, his disavowal
ought not to be inferred from his silence.^
A conditional promise, when of age, to perform a contract
made during minority will not sustain an action thereon without
proof that the condition has been fulfilled.^
Eeasonable time for an infant, on coming of age, to elect to
confirm or avoid the acts and contracts of his minority, must
depend in each case upon the particular circumstances ; and in
all cases the mental operation of election at majority, whether
outwardly manifested more or less plainly, and whether actu-
ally proved or to be conclusively assumed from long lapse of
time and silence, is the fact to be legally established or in-
ferred.^ And such election once made is irrevocable.^
^ See Willis v. Twombly, 13 Mass. Nor a transaction only remotely con-
204 ; Aldrich v. Grimes, 10 N. H. 194 ; nected with the transaction to wliich
Williams v. Norris, 2 Litt. 157 ; Hill lie was a party in infancy. Todd v,
V. Anderson, 5 S. & M. 216; M'Gill v. Clapp, 118 Mass. 49.5 Notice of dis-
Woodward, ?> Brev. 401 ; Scranton v. affirmance, given in writing, will suf-
Stewart, 52 Ind. G9, 92. fice. Scranton v. Stewart, 52 Ind. 69, 92.
2 Davis V. Dudley, 70 Me. 266. Especially if tliis be consistently fol-
Non-assertion of rights in a court of lowed up bj' acts of ownerslnp or such
justice, wliere the courts are closed dur- as indicate a claim of title adverse to
ing war, cannot be construed into con- the transaction of infancy. Tunison v.
firmation. Thompson y. Strickland, 52 Chambly, 88111. 378. Suing to set aside
Miss. 574. Nor can statements of record the transaction is a disaffirmance. Gil-
evidently referring to personal property lespie v. Bailey, 12 W. Va. 70. And
be taken as confirmation of a convey- see §§ 441, 442, post ; Baker i'. Kennett,
ance of real estate. Illinois Land Co. 54 Mo. 82.
r. Bonner, 75 111.315. Equivocal acts ^ Froctory. Sears, 4 Allen, 95; Ever-
very shortly after attaining majority son c. Carpenter, 17 Wend. 419; Chand-
should not be construed readily into a ler v. Glover, 32 Penn. St. 509; Huth v.
binding ratification or election not to Carondolet R., 56 Mo. 202.
avoid. Tobey v. Wood, 123 Mass. 88. ■* Stringer v. Life Ins. Co., 82 Ind.
6 If evidence of express disaffirmance full affirmance may be shown likewise,
is shown, acts tending to prove a prior Scranton v. Stewart, 52 Ind. 69, 92.
661
§ 438 THE DOMESTIC RELATIONS. [PART V.
§ 438. Rule as to Conveyance of Infant's Lands, Lease, Mort-
gage, &0. — Apply the rule of ratification or avoidance to the
infant's lands, where, as we have stated, affirmance or disaffirm-
ance is postponed to his majority. If an infant makes a lease
of his land (^which is voidable if for his benefit, but not other-
wise), and accepts rent after attaining full age, and by other
slight acts affirms the transaction, this is a ratification, and he
cannot afterwards disaffirm.^ And where a minor mortgaged
his land, and on coming of age conveys it to another person in
fee, subject to the mortgage, which he recognizes in the second
deed, it is held to be a ratification of the mortgage •,'^ and making
a new mortgage after majority has naturally the effect of creat-
ing a junior incumbrance.^ Ratification of a conveyance is
ratification of the mortgage made to secure payment ; he can-
not repudiate the one and not the other.* So slight acts of
assent on the infant's part are held sufficient to confirm leases
made by a guardian beyond the term of his authority.^ But an
act of the late infant, clearly showing his intention not to be
bound by his mortgage, is a sufficient avoidance of it.^ A
prompt declaration of his intention to disaffirm, and a con-
veyance to another, will answer.'^ The execution of a warranty
deed to another without reservation of the mortgage incum-
brance imports a disaffirmance of the mortgage ; ^ but the
execution of a quitclaim deed does not.^
As to the infant's mortgage, it may be further remarked that
a minor cannot- avoid a mortgage given to secure either real or
100. Parke, B., says in Williams v. Monr. 355; Lynde v. Biuld, 2 Paige,
Moor, 11 M & W. 256, 265, that tlie 191 ; Losey v. Bond, 94 Ind. 67.
principle on wliich the law allows a '^ MoGan t'. Marshall, 7 Humph. 121.
party who has reached twenty-one to ^ Young v. McKee, 13 Mich. 552 ;
give validity to contracts entered into Bigelow v. Kinney, 3 Vt. 353; Robbins
during his infancy, is, that he is sup- v. Eaton, 10 N. H. 561.
posed to have acquired the power of ^ See Smitli v. Low, 1 Atk. 489.
deciding for himself whether the trans- ^ State r. Plaisted, 43 N. H. 41-3.
action in question is of a meritorious '' White i'. Flora, 2 Overton, 426;
character by which in good conscience Hoyle r. Stowe. 2 Dev. & Bat. 320.
he ought to be bound. » j)ixon v. Merritt, 21 Minn. 196;
1 Ashfield V. Ashfield, W. Jones, Allen v. Poole, 54 Miss. .323.
157 ; Wimberley i\ Jones, 1 Ga. Doc. 91. « Singer Man. Co. v. Lamb, 81 Mo.
- Boston Bank v. Chamberlin, 15 221. The warranty deed of a minor does
Mass. 220; Story v. .Johnson, 2 You. & not disaffirm his mortgage because he
Coll. Exch. 607 ; Phillips v. Green, 5 cannot disaffirm while an infant. lb.
662
CHAP, v.] RATIFICATION, ETC., OP CONTRACTS. § 439
personal property purchased by him without avoiding the sale
also.^ The purchase and mortgage back constitute one trans-
action. And an assignment of the mortgage will carry to the
assignee all the mortgagee's rights, whether the infant affirms
or disaffirms.^ The subsequent ratification of a mortgage, as of
other deeds, relates back to the first delivery, so as to affect all
intermediate persons, except purchasers for a valuable consider-
ation.^ And where a loan of money was made to an infant for
which he executed a bond and mortgage, and in a will made
after he became of age directed the payment of " all his just
debts " and died, it was held that the will sufficiently confirmed
the mortgage.* Even notes given for the purchase-money of
land, not secured by mortgage, have been equitably enforced ;
and the court has refused to permit the notes to be disaffirmed
and the land reclaimed.^ And yet the retention, after reaching
majority, of the proceeds of land purchased and afterwards sold
by the person while an infant, is not of itself sufficient to render
him liable upon his covenant to pay an outstanding mortgage
upon the land which he had assumed as part of the considera-
tion of his purchase.^ But allowing the mortgage to be fore-
closed after majority, and a bill of foreclosure to be taken as
confessed, may defeat the infant's equity.'^
§ 439. Same Subject ; Infant's Conveyance, Lapse of Time, &c.
— It would seem that the infant is not precluded from dis-
affirming his conveyance of real estate by the mere lapse of
time, provided there has been no word or act on his part in-
dicating affirmance. Laches is not imputable to an infant.^
Where land has been sold by an infant, it was said in a Con-
necticut case, years ago, the period of acquiescence being thirty-
five years, that the infant ought to declare his disaffirmance
within a reasonable time ; and similar dicta may be found in
other courts ; but there seems to be no doubt upon the decided
cases, that mere acquiescence is no confirmation of a sale of
1 Heath v. West, 8 Fost. 101 ; Dana 5 ^eed i'. Beebe, 21 Vt. 495.
V. Coombs, 6 Greenl 89. ^ Walsh v. Powers, 43 N. Y. 23.
2 Ottman v. Moak, 3 Sandf. Ch. 431. ^ Terry v. McClintock, 41 Mich.
3 Pahner v. Miller, 25 Barb. 399. 492.
* Merchants' Fire Ins. Co. v. Grant, ^ Smith v. Sackett, 5 Gilm. 534.
2 Edw. Ch. 544.
663
§ 439 THE DOMESTIC RELATIONS. [PAET V.
lands unless it has been prolonged for the statutory period of
limitation ; and that an avoidance may be made any time before
the statute has barred an entry.^
Whatever might be the effect of an infant's own fraud, as
against himself, it would appear that a subsequent purchaser
or mortgagee in good faith and for a valuable consideration, will
hold his title as against a deed made by the owner during his
minority, of which he has received neither actual nor construc-
tive notice ; and this, too, notwithstanding ratification or fraud
of the minor might have rendered that deed valid.^
Yet lapse of time, together with slight circumstances, have in
many instances sufficed to sustain an infant's deed. A Missouri
case, indeed, holds that mere declarations 'or a promise upon
contingency will not ratify and confirm.^ But the authorities
generally manifest extreme repugnance at setting aside a solemn
conveyance of land and reopening beneficial transactions, merely
to suit the caprice or dishonorable intent of infants * This may
explain another dictwni to the effect that an infant's deed will
be confirmed by any deliberate act after he becomes of age, by
which he takes benefit under it or recognizes its validity;^
which is not without precedents for support. Thus in some
instances where the infant, after coming of age, saw the pur-
chaser make valuable improvements and incur considerable
expense, and said nothing for years, he was held bound.^ So,
too, it would seem, where one, knowing his title, permits another
1 1 Am. Lead Cas. 4th ed. 256 ; Met. v. Inman, L. R. 15 Eq. 260 ; Weaver v.
Contr. 60, 61, and oases cited ; Tucker Carpenter, 42 Iowa, 343.
V. Moreland, 10 Pet. 58 , Boody v. Mc- ^ Glamorgan v. Lane, 9 Mo. 446,
Kenney, 23 Me. 517 ; Drake i\ Ramsay, And see Davidson v. Yomig, 38 HI
5 Ohio, 251 ; Jackson v. Burcliin, 14 145.
Johns. 124 ; Urban v. Grimes, 2 Grant, * See cases cited in preceding para
96; Vaughan v. Parr, 20 Ark. 600; graph.
Voorhies v. Voorhies, 24 Barb. 150 ; ^ McCormic v. Leggett, 8 Jones, 425.
Ware t'. Brush, 1 McLean, 533; Moore 6 -Wheaton v. East, 5 Yerg. 41
?;. Abernethy, 7 Blackf. 442; Cole v. Wallace i'. Lewis, 4 Harring. 75; Jones
Pennoyer, 14 111. 158; Gillespie v. ?;. Phenix Bank, 4 Seld. 2-35 ; Davis i;,
Bailey, 12 W. Va. 70 (the case of an Dudley, 70 Me. 236. Alifer where im
infant tenant in common) ; Wallace v. provements are made while the late in-
Latham, 52 Wis. 291 ; Prout v. Wiley, fant is absent and silent. 78 Va. 584.
28 Mich. 164; 24 Fed. R. 82 And cf. Brantley v. Wolf, 60 Miss
2 Black V. Hills, .30 111. 376; Inman 420.
664
CHAP, v.] RATIFICATION, ETC., OF CONTRACTS. § 440
to purchase without giving notice of his claim. ^ While mere
lapse of time less than the statute period will not suthce, yet
the lapse of a less period in connection with such circumstances
may. A tribunal of justice may properly declnie to become the
instrument of a knave; and the late infant's dishonorable in-
tention to take advantage bears against him. So, in Illinois,
and some other States, the statute makes conveyances of a
minor binding, unless disaffirmed and repudiated within a cer-
tain reasonable period, say three years after reaching majority ; ^
which is just legislation. In short, there is, according to the
best authorities, a well-recognized distinction between the nature
of those acts which are necessary to avoid an infant's deed, and
those which are sufficient to confirm it. The deed cannot be
avoided except by some solemn act, or, as some assert, an act
equally solemn with the deed itself; but acts of a character
which would be insufficient to avoid such a deed may amount
to an affirmance of it.^
The purchaser of an infant's lands succeeds to all the infant's
rights in relation to it, although those rights grow out of the
latter's infancy.* And a party in possession under the infant's
deed cannot be regarded as a trespasser before the deed is
avoided.^
§ 440. The Same Subject ; Entry, &c. — A conveyance, in
due season after majority, to a third person has been taken to
be sufficient disaffirmance of the minor's deed, especially when
1 Hall V. Simmons, 2 Rich. Eq. 120 ; « Irvine v. Irvine, 9 Wall. 617. Here
Alsworth f. Cordtz, 31 Miss. 32 ; Belton taking a lease of part of the premises
V. Brigsjs, 4 Desaus. 465; Cresinger v. from the person to whom he had con-
Welcli, 15 Ohio, 15G; Emmons v. Mur- veyed when an infant was held proper
ray, 16 N. H. 385. But see Brantley v. evidence of affirmance. And see Phil-
Wolf, 60 Miss. 420. lips V. Green, 5 Monr. 344; Scott v.
2 Blankenship i;. Stout, 25 111.132; Buchanan, 11 Humph. 468; Allen v.
Wright V. Germain, 21 Iowa, 585; Poole, 54 Miss. 323; Johnston ?;. Fur-
SKpm, § 433. And see Ferguson v. nier, 60 Penn. St. 449 ; Rp Wood, 71
Bell, 17 Mo 347; Bostwick ?>. Atkins, Mo. 623 ; Houser ?;. Reynolds, 1 Hayw.
3 Comst 53 ; Pursley v. Hays, 17 Iowa, 143.
311; Sheldon v. Newton, 3 Ohio, n. s. * Thompson ?;. Gaillard, 3 Rich. 418.
494 ; Rainsford v. Rainsford, Spears See Jackson v. Todd, 6 Johns. 257 ;
Ch. 385. Forgetfulness of the deed in Hall v. Jones, 21 Md. 439.
infancy is no sufficient excuse for de- ^ Wallace v. Lewis, 4 Harring. 75.
lay to disaffirm. Tunison c. Chamblin,
88 111. 378.
665
§ 440 THE DOMESTIC RELATIONS. [PART V.
coupled with express notice of disaffirmance, and followed by
the grantee's en try. ^
Whether it is necessary that an entry upon the land to regain
seisin be made to perfect the title of the person intending to
disaffirm his conveyance as infant, does not clearly appear from
the authorities. The old rule was that in order to avoid a feoff-
ment this was necessary. But conveyance by feoffment has
been superseded by other methods of transferring real property
in England, and it is not in use here. In some of the earlier
New York cases, where an infant had sold wild lands to other
persons, and had, after coming of age, conveyed by similar deed
the same lands to another, it was held that the first conveyance
had been legally avoided, and the last purchaser was entitled to
the property.^ A case before the Supreme Court in the United
States is supposed to sustain the same view ; only arguendo,
however, for in point of fact the person making the second con-
veyance remained in possession all the time ; and, as the court
observed, " could not enter upon himself." ^ Following the in-
dication of these three important cases, several of the State
courts have since held that a conveyance by an infant of the
same land to another person, after he comes of age, effectually
avoids a deed of bargain and sale made in infancy ; and this
without entry on his part.* But the New York courts have
latterly been disposed to retrace their steps ; reluctance to do
injury to others, doubtless, contributing to increase the strict-
ness of requirements on the infant's part. Their present rule
appears to be that, unless the lands were wholly vacant, or the
1 See Prout r. Wile)% 28 Mich. 164; 2 Jackson v. Carpenter, 11 Johns.
Eiggs r. Fisk, 64 Md. 100; Haynes i'. 530; Jackson y. Burcliin, 14 Johns. 124.
Bennett, 53 Mich. 15; Dawson v. See Met. Contr. 44, 45, where tliis sub-
Helmes, 30 Minn. 107. If, after com- ject is discussed.
ing of age, an infant quitclaims land ^ Tucker v. Moreland, 10 Pet. 58,
conveyed by him during his minority per Story, J.
to another, he effectually disaffirms. * Hoyle i?. Stowe, 2 Dev. &Bat. 320;
Bagley y. Fletcher, 44 Ark. 153 (one Pitcher r. Laycock, 7 Ind. 398 ; McGan
judge dis.). But as to a mortgage see v. Marshall, 7 Humph. 121 ; Hughes v.
18 Neb. 121. Wherever the later deed Watson, 10 Ohio, 127 ; Peterson v Laik,
may be reconciled with that made in 24 Mo. 541 ; Haynes v. Bennett, 53
infancy, so that the two may stand Mich. 15.
together, disaffirmance should not be
predicated of the transaction.
666
CHAP, v.] RATIFICATION, ETC., OF CONTRACTS. § 441
infant remained in possession, he must make an entry or do
some other act of equal notoriety before he can pass title by a
second conveyance.^ There is no authority in the Xew England
States to oppose this later doctrine ; nor do we find any in the
other Middle States.^ But doubt is removed by statutes, in
Maine, Massachusetts, and some other States, which permit
parties to recover land by writ of entry without making actual
entry. And it is held in Maine that such a writ dispenses with
entry and amounts to disaffirmance.^
To render a subsequent conveyance an act of dissent to the
prior conveyance of an infant, it must be inconsistent therewith,
so that the two cannot stand together.* And it is held that
where land was conveyed by a person under age in exchange
for other lands, and he, after coming of age, sells and conveys
the lands so received, the last deed amounts to a confirmation
of the first;^ There may be other acts of the late infant equiva-
lent to dissent; such as giving notice of disaffirmance, followed
by a suit, if need be, for repossession or restitution of rights.^
§ 441. Ratification, &c., as to an Infant's Purchase. — The
same reasoning which applies to property transferred by the
infant applies to his purchases. If an infant, for instance, takes
a conveyance of land during minority and retains possession
1 Dominick v. Michael, 4 Sandf . 421 ; Eq. 520 ; Carrel v. Potter, 23 Mich. 377.
Bool c. Mix, 17 Wend. 133; Voorhies As to the ratification necessary to allow
V. Voorliies, 24 Barb. 150. of enforcing a lien on real estate for
2 See Roberts v. VViggin, 1 N. H. work and materials furnished during
75 ; Worcester v. Eaton, 13 Mass. 375. infancy, see McCarty r. Carter, 49 111.
See also Harrison v. Adcock, 8 Ga. 68 ; 58. But acquiescing in the settlement
Moore v. Abernethy, 7 Blackf. 442. of boundaries after coming of age binds
3 Chadbourne v. Rackliff, 30 Me. the infant. George v. Thomas, 16 Tex.
354. And see Cole v. Pennoyer, 14 111. 74.
158. Judge Metcalf appears to doubt * Leitensdorfer ?'. Hempstead, 18
the correctness of the rule in Jackson Mo. 269; McGan v. Marshall, 7 Humph.
V. Carpenter, even as to cases of wild 121. And see § 4.'^8.
lands. See Met. Contr. 45, 46, and 5 Williams v. Mabee, 3 Halst. Ch.
cases cited. A bill to enforce specific 500.
performance of an infant's contract to ** Richardson v. Pote, 93 Ind. 423.
sell real estate should not be brought A minor remainder-man will not be
before a reasonable time has elapsed, excused from disaflSrming his deed
after tlie infant attains majority, for within a reasonable time after m?ijor-
him to atfirm or disaffirm. Walker v. ity, merely because his right to bring
Ellis, 12 111. 470; Petty r. Roberts, 7 ejectment for tlie land has not accrued.
Bush, 410 ; Griffis v. Younger, 6 Ired. Nathans v. Arkwright, 66 Ga. 179.
667
§ 441 THE DOMESTIC RELATIONS. [PAET V.
after coming to majority, circumstances may make that a bind-
ing transaction. So, if an infant lessee remains in possession
of the house or land demised, and pays rent after majority, he
cannot repudiate the lease afterwards.^ An infant may duly
avoid or ratify his purchase of personal property, either during
minority or within a reasonable time after reaching majority.^
When an infant purchases property, and continues to enjoy
the use of the same, and then sells it or any part of it, and
receives the money for it, he must be considered as having
elected to affirm the contract, and he cannot afterwards avoid
payment of the consideration.^ Some authorities would confine
the affirmation of a purchase of land to an actual subsequent
sale, but this is quite unreasonable, and contrary to the general
doctrine ; for there may be many other acts which constitute
just as full and undoubted evidence of a design on the infant's
part to affirm such contract as an actual sale of the land. Thus
continuous occupation of premises, improvements, and offers to
sell, have sometimes been deemed sufficient.* And Chief Jus-
tice Shaw observes that if an infant, after coming of age, retains
landed property purchased by him during minority for his own
use, or sells or otherwise disposes of it, such acts being only
conscientiously done with intent to ratify or affirm, affirmation
or ratification may be inferred.^ The same principle has been
declared in other cases, even to the extent of holding that mere
continuance in possession is an affirmance ; the more so, if the
late infant has put it out of his power to restore the title.^ It
will be observed that such latter conduct involves two elements :
lapse of time and the exercise of acts of ownership." But the
1 Holmes v. Blogg, 8 Taunt. 35; 6 i^ana v. Coombs, 6 Greenl. 89;
Smith, Contr. 284; Bac. Abr. tit. In- Cbeshire v. Barrett, 4 M'Cord, 241;
fant, K. 612 ; Baxter v. Bush, 29 Vt. Lynde v. Budd, 2 Paige, 191 ; Middle-
465 ; Armfield v. Tate, 7 Ired. 258. ton v. Hoge, 5 Bush, 478.
2 §§ 407, 409. '' This rule was applied in a recent
3 Boody V. McKenney, 10 Shep. well-considered New York case, upon
517 ; Hubbard v. Cummings, 1 Me. 11 ; a full examination of the authorities.
Boyden v. Boyden, 9 Met. 519; Rob- An infant had given his note forcer-
bins V. Eaton, 10 N. H. 561. tain real estate ; and, very foolishly, or
* See Bobbins v. Eaton, 10 N. H. very dishonorably, endeavored to avoid
561. payment upon majority, wliile holding
^ See Boyden r. Boyden, 9 Met. to the benefits of liis purcliase. It was
519. held that by his acts he iiad ratified
668
CHAP, v.] KATIFICATION, ETC., OF CONTRACTS. § 442
infant on coming of age has of course the right to disaflfirm the
purchase by appropriate acts.^
§ 442. Executory Contracts, &c., Voidable during Infancy ;
how Affirmed or Disaffirmed, — As to deeds passing a voidable
title to land out of the infant we have seen that he cannot elect
to disaffirm or ratify until he attains majority. But with regard
to an infant's executory contracts, or transactions importing on
his part the fulfilment of duties, during the period of infancy,
which might be prejudicial or irksome, he is allowed to disaffirm
and avoid during infancy, wherever the contract was not of that
beneficial or positive kind which the law pronounces binding.
This is strictly in accordance with the general doctrine that one
shall not be prejudiced by his own acts committed while an
infant. Thus, if the infant promises during infancy to marry,
he need not fulfil that promise ; if he make a stock contract, he
can repudiate it at any time and thereby avoid the onerous re-
sponsibility of continuing to pay assessments ; '^ if he has become
a partner, he may rid himself, before majority, of the injudicious
compact.'"^ A disaffirmance during infancy, where thus per-
mitted, may require something different from disaffirmance at
majority, something more explicit perhaps, and nearer to an
express repudiation ; though each case, as in the case of election
at majority, should be governed by its own circumstances. The
executory contract of an infant to convey or transfer his real or
personal property cannot be specifically enforced against him,
nor made the basis of an action of damages ; * nor, on the other
hand, can his executory contract to buy real or personal prop-
erty, or to mortgage or give security, be compelled ; but in
either case the right of affirmance or disaffirmance is left open
to him.^
the contract of purchase. Henry v. * "Walker v. Ellis, 12 111. 470 ; Petty
Boot, 33 N. Y. 526. v. Roberts, 7 Bush, 410 ; Griffis v.
1 Williams v. Williams, 85 N. C. Younger, 6 Ired. Eq. 520. And see
313 Mustard v. Wohlford, 15 Gratt. 329.
2 Dublin & Wicklow R. v. Black, ^ See Riley v. Mallory, 33 Conn.
8 Ex. 181 ; Indianapolis Chair Co. v. 201. An infant who bids for property
Wilcox, 59 Ind. 429 ; Robinson v. at an auction is not obliged to execute
Weeks, 56 Me. 102. the purchase. Shurtleff ;;. Millard, 12
3 Goode V. Harrison, 5 B. & Aid. R. I. 272.
147 ; Dunton v. Brown, 31 Mich. 82.
669
§ 443 THE DOMESTIC RELATIONS. [PART V.
§ 443. Rule applied to Infant's Contract of Service. -^Thus,
too, although it may be said that one's fully executed con-
tract for service cannot be re-opened, if beneficial to him, to
the adult party's detriment, the general rule, independently of
the apprentice acts, is that an infant who contracts to per-
form labor for a fixed time at a definite rate may put an end to
it whenever he chooses during minority, and claim compensa-
tion pro rata for his services.^ Infants, acting upon bad advice,
however, have sometimes the effrontery, after rescinding a con-
tract of service beneficial to themselves, to demand wages I'rom
their employers, without the allowance of reasonable offsets ;
but the courts are not so foolish as to indulge them often in
this respect ; hence, in numerous instances, it is decided that
where an infant puts an end to his contract of service, his
demand for proportional wages is subject to the reasonable
deduction of his employer for part-payments, board, and neces-
saries furnished him during the same period, even to the entire
extinction of his own claim.^ And the injury sustained by his
employer will be not unfrequently taken into account.^ But
the infant cannot be sued for breach of his agreement of ser-
vice.* Of course he may set off his own labor against the em-
ployer's demand for necessaries.^ The mutual understanding of
the parties as to whether the infant's services should be paid
for, or counterbalanced completely by his board and educa-
tion, should be ]:egarded in every case, upon examination of the
1 Person v. Chase, 37 Vt. 647 ; Van 2 Thomas v. Dike, 11 Vt. 273 ; Hoxie
Pelt V. Corwine, 6 Ind. 363, Ray v. v. Lincoln, 25 Vt. 206; Lowe v. Sin-
Haines, 52 111. 485 ; Davies v. Turton, klear, 27 Mo. 308 ; Stone v. Dennison,
13 Wis. 185 ; Moses v. Stevens, 2 Pick. 13 Pick. 1 ; Squier v. Hydliff, 9 Mich.
332 ; Mason v. Wright, 13 Met. 306 ; 274 ; Wilhelm v. Hardnian, 13 Md.
Gaffney v. Hayden, 110 Mass. 137; 140; Roundy v. Thatcher, 49 N. H.
Spicer v. Earl, 41 Mich. 191 ; Liifkin v. 526.
MayalJ, 5 Post. 82 ; Francis v. Felmet, » Thomas v. Dike, 11 Vt. 273 ; Hoxie
4 Dov. & Bat. 498 ; Judkins v. Walker, v. Lincoln, 25 Vt. 206 ; Lowe v. Sin-
17 Me. 38 ; Nashville, &c. R. Co. v. klear, 27 Mo. 308 ; Moses v. Stevens, 2
Elliott, 1 Cold. 611. But see Weeks v. Pick. 336. Contra, Meeker v. Hurd,
Leigliton, 5 N. H. 343; Harney r. Owen, 31 Vt. 689; Derocher v. Continental
4 Blackf. 336; Wilhelm v. Hardman, Mills, 58 Me. 217.
13 Md. 140 ; M'Coy v. Huffman, 8 Cow. * Frazier v. Rowan, 2 Brev. 47.
84: Medbury v. Watrous. 7 Hill, 110. ^ Francis v. Felmet, 4 Dev. & Bat.
As to the more general effect of eman- 498.
cipation, see supra. Part III. c 5.
670
CHAP, v.] RATIFICATION, ETC., OF CONTRACTS. § 444
circumstances.^ And if the infant continues in service after he
becomes of age, without demanding increase of wages or other
modification of the contract, this is good evidence of his affirm-
ance of the contract.^
It is a well-known principle that when a contract is dissolved
by mutual consent, pro rata wages may be recovered without
express agreement. This applies to infants as well as adults.
But a father is so far bound by his son's contract that his own
claim for compensation depends upon his son's proper perform-
ance.^ The employer, on the other hand, cannot make a new
contract with the minor, so as to supersede the first one, with-
out the assent of the father, or other person with whom the
original contract was made.* But it is held that a contract of
hiring between an infant and a third person is not rendered
inoperative on the infant's part merely for want of the parent's
previous consent ; the infant not having avoided the contract,
and the parent making no effort to assert his paramount
rights.'^
§ 444. Parents, Guardians, &c., cannot render Transaction
Obligatory upon the Infant, &c. — A contract made by a parent,
1 Mountain v. Fisher, 22 Wis. 93 ; sum advanced was held to Le a reason-
Garner V. Board, 27 Ind. 323. A case able consideration for a third part of
occurred in Massachusetts a few years the proceeds of the plaintiff's labor,
ago, where an infant, in consideration " Spicer v. Earl, 41 Mich. 191. Says
of an outfit to enable him to go to Cali- Cooley, J., of repudiation in such cases :
fornia, agreed, with his father's assent, " Where only the infant's services are
to give tiie party furnishing the outfit in question, the rule should not be ex-
one third of all the avails of his labor tended beyond what is absolutely neces-
during his absence, whicii he afterwards sary to proper protection; it should
sent accordingly. The jury having not be allowed to become a trap for
found that the agreement was fairly others, by means of which the infant
made, and for a reasonable considera- may perpetrate frauds." See also
tion,and beneficial to the infnnt, it was Forsyth v. Hastings, 27 Vt. 646, where
held that he could not rescind the ratification was inferred from remain-
agreement and recover the amount ing in the employer's service a month,
sent, deducting the cost of the outfit after attaining majorit}'.
and any other money expended for ^ Rogers v. Steele, 24 Vt. 513. See
him under the agreement. Breed v. Thomas v. Williams, 1 Ad. &E. 685;
Jiuld, 1 Gray, 455 This offer, the Roundy v. Thatcher, 49 N. H. 526.
court observed, would not place the * McDonald c. Montague, .30 Vt. 357.
parlies in statu quo, for the defendants And see Gates v. Davon])Ort, 29 Barb,
took the risk of the life, health, and 160. See also Parent and Child. s!//j?-a.
good fortune of the plaintiff. Under * Nashville, &c. R. R. Co. v. Elliott,
all the circumstances of the case, the 1 Cold. 64.
671
§ 445 THE DOMESTIC EELATIONS. [PART V.
or guardian, or a stranger, in an infant's name, acquires no
obligatory force against the infant himself, apart from the lat-
ter's knowledge or consent ; and if it be the infant's own con-
tract, then the usual right of ratification or avoidance remains
open to him.i One who assumes for an infant a mortgage debt,
or a deficiency upon foreclosure of the infant's land, or makes
any undertaking for the infant upon a voidable obligation, can-
not render the infant personally liable.^ Nor can a father sue
on his child's voidable contract as the child's substitute.^
On the other hand, a third person not in privity with the
infant has no right to say that the infant shall not on majority
make or assume any contract he pleases.^ Minors whose
property has been sold without legal authority by parents,
guardian, or any one else, can recover it again upon the prin-
ciples already discussed ; and thus may be avoided an illegal
sale of land, without first tendering the price to the purchaser,
leaving him, howev^er, to recover such consideration as may
remain.^
§ 445. Miscellaneous Points ; As to New Promise ; "Whether
Infant affirming must know his Legal Rights. — Where a new
promise is requisite on reaching majority, it must be made to
the party with whom the infant contracted, or to his agent or
attorney ; not to a stranger.^ But a promise to an agent
authorized to present the claim and receive payment and give
discharge binds him lately an infant.'' And where a writing
addressed to another than the plaintiff is relied on, not as con-
stituting a ratification or containing a promise, but as evidence
of a ratification previously made by the defendant, it is held
^ Armitage v. Widoe, 36 Midi. 124. favor. 4 Lea, 405. Where minors on
2 Bicknell i\ Bicknell, 111 Mass. arriving at age are induced by their
265; Wood v. Tniax, 39 Mich. 628. trustee to execute a deed of confirma-
^ Oshurn y. Farr, 42 Mich. 134. In- tion without their rights being ex-
fant may redeem his land from a tax plained to them, equity will relieve
sale. 41 Ark. 59. them from the consequences of their
* Douglas i». Watson, 34 E. L. & Eq. mistake. Wilson ?'. Life Ins. Co., 60
447. Md. 150. Delay in disaffirming may
6 59 Tex. 381 , 401 ; Self v. Taylor, bar relief, if unreasonable. 94 N. C.
33 La. Ann. 7G9 ; Part IV. c. 7. Equity 732.
will charge purchase-money applied ^ Bigelow r. Grannis, 2 Ilill, 120;
for the benefit of infants by way of Goodsell v. Myers, 3 Wend 479.
equitable subrogation in the purchaser's ^ Mayer v. McLure, 36 Miss. 389.
672
CHAP, v.] RATIFICATION, ETC., OF CONTRACTS. § 446
admissible in the plaintiff's favor.^ Nor is it necessary that the
agent should have disclosed his authority before the defendant
made his admission.^
It is not essential to a valid ratification that the person lately
an infant should know that he was not legally liable on his
contract made during infancy.^ Ignorance of the law excuses
no one. But there is a dictum of Lord Alvanley to the con-
trary, which has been frequently repeated in American courts,
and once constituted the basis of a decision in Pennsylvania.'*
Such acts as notice of disaffirmance, and then bringing an
appropriate suit, amount fairly to avoidance of an infant's con-
tract, in various instances.^
§ 446. Whether Infant who disaffirms must restore Considera-
tion. — It is a rule that money voluntarily paid by a minor
under a contract from which he has derived no benefit may be
recovered back upon his disaffirmance of the contract.^ If an in-
fant purchaser of goods claims the right to rescind and restores the
property, he can of course recover back the purchase money he
paid.'^ An infant upon reaching majority, who chooses to dis-
affirm a sale of his real estate not made in accordance with law,
may do so without first refunding, or offering to refund, the
purchase-money.^ But the principle is firmly established by
the courts that he cannot on attaining full age hold to an ex-
change or purchase, made by him in infancy, and its advan-
1 Stern v. Freeman, 4 Met. (Ky). On an issue whether an infants
309. contract has been ratified, it may be
2 Hoit V. Underbill, 10 N. H. 220. shown tliat tlie consideration was used
And see Tate v. Tate, 1 Dev. & Bat. 22. with liis knowledge for his advantage.
3 Morse v. Wheeler, 4 Allen, 570 ; 95 N. C. 286.
Met. Contr. 59 ; Ring v. Jamison, 60 ^ Shurtleff v. Millard, 12 R. I. 272,
Mo. 124; Andersons. Soward, 40 Ohio applies this doctrine (and without re-
St. 325; Clark v. Van Court, 100 Ind. striction as to auctioneer's loss) to the
113. deposit money paid by an infant at an
* Harmer v. Killing, 5 Esp. 103 ; auction purchase, where he repudiated
Hinely v. Margaritz, 3 Barr, 428. See before completing the purchase.
Curtin v. Patton, 11 S. & R. 305; Reed ' 10 Daly, 352 ; 44 Ark. 293.
V. Boshears, 4 Sneed, 118; Norris v. ^ Pitcher v. Laycock, 7 Ind. 398;
Vance. 3 Rich. 164. Cresinger v. Welch, 15 Ohio, 156;
^ The bringing of an action is a dis- Miles v. Lingerman, 24 Ind. 385; Bed-
affirmance by the infant of his release inger v. Wharton, 27 Gratt. 857 ; Green
of a claim for personal injuries. St. i'. Green, 69 N. Y. 553. But cf. vStuart
Louis R. V. Higgins, 44 Ark. 293 ; § 407. v. Baker, 17 Tex. 417 ; 55 Tex. 281.
And see 30 Fed. R. 697.
43 673
§446
THE DOMESTIC RELATIONS.
[part V.
tages, and thus affirm that, while pleading his infancy to avoid
the payment of the purchase-money.^ There is some conflict in
this class of cases, however, at the present day ; the effort being
on the one hand to hold the infant to common honesty, and on
the other not to deprive him of the legal right of election which
the policy of the law accords to all who have been under a legal
disability, because of possible improvidence on his part while
irresponsible. According to the better opinion now current, it
is only when an infant on disaffirming his contract at majority
still has the consideration, that he can be compelled to return
it as the condition of disaffirmance ; restitution in full not being
a prerequisite, but restitution of the advantages as they still
remain to him and capable of being restored.^ Where an infant
has the privilege of repudiating during infancy, a similar rule
applies as to restoring consideration.^ All that is usually
asserted is that the repudiating infant should be made to place
the adult in static quo as far as possible. And hence the ready
disposition in so many modern cases to treat the transaction of
1 Kline v, Bcall, 6 Conn. 494 ; Bailey
V. Bamberger, 11 B. Monr. 113; Strain
V. Wrijiht, 7 Ga. 568 ; Hillyer r. Ben-
nett, n E(hv. Ch. 222 ; Lowry v. Drake,
1 Dana, 46; Kitchen v. Lee, 11 Paige,
107; Tipton v. Tipton, 3 Jones, 552;
Womack >: Womaek, 8 Tex. 3!)7 :
Smith V. Evans, 5 Humph. 70; Man-
ning r. Johnson, 26 Ala. 446 ; Wilie v.
Brooks, 45 Miss. 542 ; Kerr v. Bell, 44
Mo. 120.
2 Cliandler v. Simmons, 97 Mass.
508 ; Green v. Green, 69 N. Y. 553, and
cases cited ; Dill v. Bowen, 54 Ind.
204; Shnrtleff v. Millard, 12 R. L 272.
Cf . Badger v. Phinney, 15 Mass. 359 ;
Bartholemew v. Finnemore, 17 Barb.
428.
3 Corey v. Burton, 32 Mich. 30, the
case of a chattel mortgage ; where the
infant was allowed to replevy the chat-
tels without restoring the consideration.
But an infant purchasing chattels and
giving a purchase-money mortgage for
the price cannot disaffirm the mortgage
and at the same time keep the chattels
as if by clear title. Curtiss v. McDou-
674
gal, 26 Ohio St. 66 ; Knaggs v. Green,
48 Wis. 601 ; Carpenter v. Carpenter,
45 Ind. 142 ; White v. Branch, 51 Ind.
210, — seem to absolve the infant from
restoring property received in ex-
change. But, semhle, if he still holds
the exchanged property he ought, on
correct principle, to restore or offer to
restore it, when disaffirming the trans-
action. In many cases to maintain an
action based upon his avoidance of his
contract, an infant should first give
notice of his election to avoid or make
a demand. Betts v. Carroll, 6 App.
518. See Stout v. Merrill, 35 Iowa, 47 ;
Henry v. Root, S3 N. Y. 526. See,
further, Dawson v Holmes, 30 Minn.
107; Brantley v. Wolf, 60 Miss. 420 ;
Brandon i; Brown, lOi) III. 519. A pur-
chaser from the infant, after majority,
on a bill to have tlie deed cancelled
which was made in minority, need not
tender back the purcliase-money re-
ceived by the infant, which the latter
has squandered. Eureka Co. v. Ed-
wards, 71 Ala. 248.
CHAP, v.] RATIFICATION, ETC., OF CONTRACTS. § 446 a
minority as affirmed, wherever one, after attaining majority, re-
tains deliberately and enjoys the fruits of the transaction or
disposes of the consideration.^
Hence an infant cannot damage property he has received,
and then demand the full price on offering to restore it.^ Nor
recover partnership property after rescinding the partnership
agreement, so as to prejudice liabilities of the firm which are
outstanding ; -^ nor rescind the partnership agreement and then
demand benefits inconsistent with it.* If the former vendee be
sued for use and occupation of land, it is held that he may re-
coup for valuable improvements ; and equity favors a fair ad-
justment of rents, damages, and improvements.^ The plea of
false warranty may sometimes be set up against the infant's
attempt by affirmance to enforce a hard bargain.^ To multiply
these illustrations is unnecessary ; the cardinal principle which
runs through them all is that, with due reservation of the in-
fant's privilege, substantial justice should be done, if possible,
between the two parties to a contract, and things placed in
statu qno when the contract is rescinded ; for courts are very
reluctant to allow the infant to use his privilege as a means of
defrauding others.''
§ 446 a. Avoidance through Agents, &c. — It has been said
that all acts done by an infant through an agent's intervention
are void ; but they are (in many instances at least) rather to be
regarded as voidable.^ The rescission of a minor s contract as
to personal property or his person, then, by means of an agent
1 Brantley v. Wolf, 60 Miss. 420 ; ing majority. Parker v. Elder, 11
§§ 436, 437. Humph. 546.
2 Carr v. Clough, 6 Fost. 280 ; 6 Morrill v. Aden, 19 Vt. 505. And
Bartliolemew v. Finneniore, 17 Barb, see Heath v. West, 8 Fost. 101 ; Ship-
428. man v. Horton, 17 Conn. 481 ; Edgar-
3 Furlong v. Bartlett, 21 Pick. 401 ; ton i: Wolf, 6 Gray, 45.3.
Sadler ('. Robinson, 2 Stew. 520; Kin- ' Whether a minor who deals with
nen !• Maxwell, 6(i N. C. 45. an adult whom he fraudulently induces
* Page I'. Morse, 128 Mass. 99 ; to think him of full age is estopped
Dunton v. Brown, 31 Mich. 82. So, from avoiding the transaction for in-
too, as to his contract to perform ser- fancy, see 136 Mass. 405 ; § 426. If
vice, supra, § 443. an infant retains the property, the adult
•? Weaver v. Jones, 24 Ala. 420, cannot recoup its use during minority
Petty V. Roberts, 7 Bush, 410. If one against the price demanded back. 138
receives rents when an infant, he can- Mass. .310.
not demand them over again on attain- * Supra, § 406.
675
§ 447 THE DOMESTIC RELATIONS. [PAET V.
"whom he employs, should not be pronounced void, if not plainly
to the infant's prejudice, nor set up in defence by the adult with
whom he contracted. And where an infant, with his father's
assent, sent an attorney at law to repudiate his purchase for
him, instead of repudiating personally, the adult, in a recent
case, was not permitted to dispute this disaffirmance as illegally
made.^
§ 447. Ratification, &c., as to Infant Married Spouse. — Since
a married woman conveys her lands by force of statute pro-
visions, perplexing questions may arise as to the effect of a
conveyance executed in conformity with late acts, yet ineffectual
because of her infancy.^ It would appear from some late Ameri-
can cases, that the wife still continuing covert after becoming of
age, acts which might constitute ratification in ordinary cases
may not always be set up against her.^ That her husband
prevented her from disaffirming upon her majority is a good
excuse for her delay while he lived.^ But a married woman
is sometimes estopped by her own acts ; as in a case where
her equitable interest in land was sold while she was a mi-
nor, together with the interests of adult parties, and she
received her share of the proceeds some years after attaining
majority.^ It would appear that any affirmance which a wife
in a just transaction may make with her husband's acquies-
1 Towie V. Dresser, 73 Me. 252. ler, Hus. & Wife, § 178; Sims y. Ever-
Especially, as the autliority of the hardt, 102 U. S. .300 ; Wilson v. Branch,
agent was not especially objected to 77 Va. 65 , 86 Ind. 26.3, 577; Richard-
wlien the notice was given and the de- son v. Pate, 93 Ind. 423 ; supra, Part 11.
mand made upon the adult. lb. c. 6. Infant husband's conveyance
2 Harbman v. Kendall, 4 Ind. 403. voidable. 4 Hcisk. 268.
8 Matherson v. Davis, 2 Cold. 443; Where one is under two disabilities
Miles V Lingerman, 24 Ind. 385. The — infancy and coverture — when a
equity doctrine, to argue from the case cause of action accrues, tlie statute of
of marriage settlements, appears to be linutations will not begin to run until
that the wife may by acts give validity both are removed. North v. James, 61
to such deeds, after attaining full age Miss. 761. But see contra, as to sus-
and notwitlistanding her coverture, pending the running of the statute.
See supra. § .399. Disaffirmance soon Parish v. Cook, 78 Mo. 212; Ortiz v.
after attaining majority was permitted De Senavides, 61 Tex. 60.
in Scranton v. Stewart, 52 Ind. 69, 92. * Sims v. Bardoner, 86 Ind. 87.
But a reasonable time after discover- ^ Anderson v. Mather, 44 N. Y. 249.
ture is allowed an infant wife, as cases And see Schmitheimer v Eiseman, 7
now decide the point, though length of Busli, 298.
time may have intervened. See Schou-
676
CHAP, v.] EATIFICATION, ETC , OF CONTRACTS. § 448
cence and her own free consent atter reaching majority, will
bind her.^
§ 448. Rules ; How far Chancery may elect for the Infant. —
By a well-known rule of equity, the proceeds of lands sold
during minority retain the character of real estate, and where
the personal estate becomes land its original character is like-
wise retained. And such property remains real or personal
still, even after the infant attains majority, so long as there
is no act or intent on his part to change its character ;2 but
the character ceases when he attains majority, and obtains
possession of the proceeds.^
A court of chancery, however, as the protector of the young,
has an extensive jurisdiction of matters affecting an infant's
property rights, and may, upon a full hearing, the infant himself
being duly summoned and his rights duly represented, enter a
decree which, if procured without fraud or undue injury, will
be binding. Of this jurisdiction we have already treated,* as
also of statutes authorizing sales of an infant's real estate.^
Infants must be parties to bills in equity, as, for instance, in
affecting their title to real estate ; and making their guardians
parties is not sufficient, as it is generally ruled, without service
of process upon the infant himself or the usual publication of
notice.^
But the practical result must be, wherever chancery juris-
diction is broadly upheld, that the court in many instances, the
infant being duly a party to the proceedings, elects for himJ
1 Sims V. Smith, 99 Ind. 469. And & lb. ; Chappell v. Doe, 49 Ala. 153.
see Ellis v. Alford, 64 Miss. 8. 6 Tucker v. Bean, 65 Me. 352 ; Row-
2 Foreman v. Foreman, 7 Barb. 215. land v. Jones, 62 Ala. 322 ; Cook v.
* Forman v. Marsh, 1 Kern. 544. Rogers, 64 Ala. 406 ; Bonnell v. Holt,
Upon the death of the infant after such 89 111. 71; Carver v. Carver, 64 Ind.
conversion the inheritance or distribii- 195. But see Burrus v. Burrus, 56
tion is according to the original char- Miss. 92; Scott v. Porter, 2 Lea, 224.
acter of the property. See Paul v. And as to cancelling a purely personal
York, 1 Tenn. Ch. 547. contract this rule is all the more imper-
* Part IV. cs. 6, 7. But as to " al- ative. Insurance Co. v. Bangs, 103
lowing the infant his day " on reaching U. S. Supr. 435. As to joining a guar-
majority, see next chapter. Jurisdic- dian, see next chapter.
tion of the court over an infant ward ' Chancery may authorize leases for
is not taken away because the infant the enhancement of the real estate of
is insane. In re Edwards, L. R. 10 infants if manifestly for their interests.
Ch. D. 605. Talbot v. Provine, 7 Baxt. 602. As to
677
§ 449 THE DOMESTIC RELATIONS. [PART V.
The infant's own affirmance of the decree m chancery or under
statute, as by accepting and retaining the benefits, delaying pro-
cedure to reopen the matter for alleged fraud or other infirmity,
is of course a double confirmation.^
CHAPTER VI.
ACTIONS BY AND AGAINST INFANTS.
§ 449. Actions at Law by Infants ; Suit or Defence by Next
Friend or Guardian. — It is a fundamental principle that the
rights of property shall vest in infants, notwithstanding their
tender years ; and incidentally thereto they have the right of
action. Yet it is clear that if the infant be unfit to make a
contract he is unfit to sue on his own behalf. Hence is the rule
that while process is sued out in the infant's own name, it is in
his name by another ; that is to say, some person of full age
must conduct the suit for him. The same principle applies to
all civil actions, whether founded on a contract or not.
At common law, infants could neither sue nor defend, except
by guardian. They were authorized, by Stat. Westm. 1, to sue
by prochein ami (or next friend) against the guardian in chivalry
who had aliened any portion of the infant's inheritance.^ Stat.
Westm. 2, c. 15, extended this privilege to all other cases where
partition sale held binding, see Cocks both Jones v. Sharp, 9 Heisk. 660.
V. Simmons, 57 Miss. 183; Scott v. And see Knotts v. Stearns, 91 U. S.
Porter, 2 Lea, 224. As to decree en- 638. Decree sustained, notwitlistand-
forcing a vendor's lien, see Cocks v. ing the birth of a posthumous child
Simmons, 57 Miss. 183. As to sale for not considered when the sale was
maintenance or better investment, see ordered. lb. See also Goodman v.
Sharp i: Findley, 59 Ga. 722 ; s>iprn. Winter, 64 Ala. 410.
Part IV. cs. 6, 7. Chancery may com- ^ Walker v. Mnlvean, 76 111 18;
promise a claim in which infants are Corwin v. Siioup, 76 111. 246. See fur-
interested, even against next friend or ther, as to the binding effect of decrees
guardian ad litem, hi re Birchall, 16 and judgments, next chapter.
Ch. D. 41. Or exercise discretion as 2 Macphers. Inf. 13,352.
to selling either realty or personalty, or
678
CHAP. VI.] ACTIONS BY AND AGAINST INFANTS. § 449
they could not sue formally. Lord Coke lays down that, since
these statutes, the infant shall sue by prochein ami and defend
by guardian.^ And Fitzherbert is to the same effect.^ But Mr.
Hargrave thinks it probable that Fitzherbert and Lord Coke did
not mean to exclude the election of suing either by prochciii ami
or by guardian.^ And whether they did or not, guardianship at
the present day, so unlike guardianship as they understood it,
justifies the modern practice ; which is to appoint a special per-
son as prochein ami only in case of necessity, where an infant
is to sue his guardian, or the guardian will not sue for him, or
it is improper that the guardian should be the prochein ami.
In other cases, the rule is to sue by guardian or prochein anii.'^
But an infant may sue by his next friend though he have a
guardian, if the guardian does not dissent.^ And in some
States the choice allowed the infant is still more liberal.^ Not
unfrequently, too, the next friend who brought the suit is re-
moved and another appointed, on the ground that it is for the
infant's benefit."
An infant cannot prosecute an action either in person or by
attorney. This is well settled.^ But advantage must be taken
by plea in abatement of the infant's suing by attorney, or by
application to a judge, or the court, for it is not error after
judgment either on verdict or by default.^ The same rules are
frequently applied to a parent who sues on behalf of minor
children, but not as guardian or next friend. Where infancy
of the plaintiff is pleaded in abatement to a suit brought by a
1 2 Inst. 261, 390: Co. Litt. 135 b; v. Humes, 22 Md. 346. As where the
3 Robinson's Pract. 229. next friend refuses to appeal. Dupuy
2 F. N. B. [27] H. V. Welsford, 28 W. R. 762.
8 Harcr. n. Co. Litt. 135 6. » Cro. Eliz. 424; Cro. .Tac. 5; 1 Co.
* Claridgre v. Crawford, 1 Dowl. & Litt. 135 6, Harg. n.,220; Miles >: Boy-
Ry. 13; 3 Robinson's Pract. 230; den, 3 Pick. 213; Clark v. Turner,!
Younge v. Younge. Cro. Car. 86 ; Good- Root, 200 ; Mocke^' v. Grey, 2 Johns,
win V. Moore, Cro. Car. 161; Aptliorp 192; Timmons v. Timmons, 6 Ind. 8;
V. Backus, Kirby, 407 ; M'GlfSn v. Stout, Nicholson v. Wilborn, 13 Ga 467.
Coxp, 92; Blackman i\ Davis, 42 Ala. 9 2 Saund. Pleading, 207; Bird v.
184. Pegg, 5 B. & Aid. 418 ; Finley c. Jowle,
5 Thomas v. Dike, 11 Vt. 273; Rob- 13 East. 6; Apthorp v. Backus, Kirby,
son V. Osborn, 13 Tex. 298. 407. But as to the infant himself, see
6 Hooks V. Smith, 18 Ala. 338. Bird v. Pegg; Jones v. Steele, 36 Mo.
1 Barwick v. Rackley, 45 Ala. 215; 324.
Martin v. Wcyman, 26 Tex. 460; Mills
679
§ 450 THE DOMESTIC RELATIONS. [PAKT V.
minor in his own name without any guardian or next friend,
the court may allow the infant to amend by inserting in his
writ that he sues by A., his next friend.^ Nor does this rule
deprive the infant of the professional services of an attorney ;
it relates to the parties to the suit.^ Where an infant has, after
bringing suit (not by guardian or next friend), become of age,
no amendment, nor appearance of a guardian or next friend is
necessary.^
§ 450. Action at Law by Infants ; The Next Friend. — Gener-
ally speaking, when an action is brought by an infant, he sues
in his own name by a certain person as next friend. A prochein
ami, commencing his authority with the writ and declaration,
can only maintain the suit for such causes of action as may be
prosecuted without special demand ; as for personal injuries
done to the infant, or for sums of money where the writ itself
is considered as the demand.* In England, it was once consid-
ered that the special admission of a guardian for an infant to
appear in one case would serve for others.^ But the modern
rule is that the special admission of prochcin ami or guardian,
to prosecute or defend for an infant, shall not be deemed an
authority to prosecute or defend in any but the particular action
specified.^ Sometimes there will be an advantage in suing by
guardian if this can legally be done.'' In any event, the inter-
ests of the person who sues as guardian or next friend must not
be hostile to that of the infant.^
The guardian, like the prochein ami, is, in English practice,
appointed by the court before the plaintiff can proceed in the
action, and no legal right of parentage or of guardianship will
enable any one to act for the infant without such appointment.^
But where the infant's father, being a necessary witness, could
not properly be prochein ami in a certain suit, the court, on
motion, appointed a friend of the family with the father's con-
1 Blood r. Harrington, 8 Pick. 552. ^ Archer v. Frowde. 1 Stra. 304.
2 People y New York, 11 Wend. 164. 6 2 Saund. Plead. 207; Macphers.
8 Woodman v. Rowe, 59 N. H. 453. Inf. 35-3.
See 66 Ga. 477, as to amendment of ^3 Robinson's Pract. 229.
husband's action as next friend after ^ George v. High, 85 N. C. 113; Pat-
his infant wife becomes of age. terson v. Pullman, 104 111. 80.
* Miles V. Boyden, 3 Pick! 219. 9 Macpiiers. Inf. 363.
680
CHAP. VI.] ACTIONS BY AND AGAINST INFANTS. § 450
currence.i And the father's natural right to represent his child
as next friend is to be respected.^ No authority from the infant
to the guardian or prochein ami to sue is necessary, though the
infant be on the very eve of majority ; but it is intimated that
the court might interfere if fraud was shown.^ An action to
recover money or personal property belonging to an infant may
be brought in the infant's name by his guardian ad litem or next
friend, though he has a general guardian.* As the prochein ami
is an officer of the court, if the infant wishes him removed he
must apply to the court for that purpose, and an entry of the
change should be made of record." But on the plaintiff coming
of age, he may, it seems, remove the prochein ami of his own
authority, and appear thereafter by his own attorney.^
While, in theory, however, the prochein ami is still legally
appointed by the court, such formalities are now, in practice,
very generally waived. In Connecticut, Massachusetts, Vir-
ginia, and other States, no entry of record is requisite admitting
a person to sue as guardian or next friend, the recital in the
writ and count being deemed sufficient evidence of admission
unless seasonably challenged by the opposite party, when the
order may be supplied.'^ In New York, on the other hand, a
prochein ami must be appointed for the infant plaintiff before
process is sued out ; and such is the practice in some other
1 Claridge v. Crawford, 1 Dowl. & formalities should be carefully ob-
Ry. 13. served. But special averments of in-
2 Woolf V. Pemberton, 6 Ch. D. 19. fancy, etc., are not commonly required.
See Strong i'. Marcy, 33 Kan. 109. 91 Ind. 522. And see as to form, 66
3 Morgan v. Thorne, 9 Dowl. 228. Tex. 421.
And see Barwick v. Rackley, 45 Ala. Whether an infant or his next
215. friend can sue in forma pauperis, see 7
* Segelken v. Meyer, 94 N. C. 473. Lea, 717 ; 92 Ind. 103 ; 13 Abb. (N. Y.)
^ Davies v. Locket, 4 Taunt. 765; N. Cas. 182. A bond under some codes
Morgan v. Thorne, supra. is required of the next friend. 19 Fla.
^ See Bac. Abr. Infant, K. 2 ; Pat- 438. As to actions brought in the name
ton V. Furthmier, 16 Kan. 29. of the State, see 66 Md. 325.
Dismissal of action by next friend "^ See Guild v. Cranston, 8 Cush.
for infant, because not for the infant's 506; Boynton v. Clay, 58 Me. 236;
interest. 59 Iowa, 631 (code). And Burwell o. Corbin, 1 Rand. 151; 3
see dismissal of suit brought without Robinson's Pract. 230; Trask v. Stone,
leave of court where the next friend's 7 Mass. 241 ; Judson v. Blanchard, 3
interest is adverse to the infant. 104 Conn. 579 ; Klaus v. State, 54 Miss.
111. 80. Local codes furnish their re- 644. And see Stumps v. Kelley, 22 111.
spective rules of practice ; and statute 140.
681
§ 450 THE DOMESTIC RELATIONS. [PART V.
parts of this country.^ In some States it is deemed proper to
prove infancy, and hence the right to sue by next friend.^
So, too, in this country, more deference seems to be shown
to the infant's wishes than in England. Thus, in Massachusetts,
the court, on the personal petition of a minor twenty years of
age, withdrew the authority of the j^fochcin ami, and ordered
all further proceedings in the suit postponed until the minor
should attain full years.^ In the choice of a guardian and
prochein arai, a minor above fourteen has much latitude of dis-
cretion ; and when he attains full age he may enter the fact
upon record, and without further formality proceed to conduct
the suit for himself.*
Where an infant has brought an action by his next friend,
and has recovered damages which have been received by the
attorney, the money is the money of the infant, and he may sue
the attorney for it.^ The codes of some States require payment
of the amount recovered into court, until a guardian is appointed
to hold the fund.^
A prochcin avii is liable for costs, and the remedy is against
him for attachment, which should be absolute in the first in-
stance.'^ This is the English practice. It would appear that
execution cannot issue against the infant himself ; and this from
the very circumstance that the next friend is, in theory, one
who comes forward to assume all such liabilities.® But in
' conformity with statutes in Massachusetts, it is held that a
prochein ami, as such, is not liable for costs ;^ nor does he
seem to be always strictly considered in our courts a party
1 Wilder v. Ember, 12 Wend. 191 ; v. Clark, 2 Dowl. 302. See Price v.
Haines r. Oatman, 2 Don^r. 430; Grant- Dugtran, 4 Man. & Gr. 225.
man f. Thrall, 44 Barb. 173. ^Ib.; Stephenson v. Stephenson,
2 Byers v. Des Moines, &c. R. R. 3 Hey. 123 ; Ferryman v. Burprster, 6
Co., 21 Iowa, 54. Port. (Ala.) 199; Sproule v. Botts, 5
3 Guild V. Cranston, 8 Cush. 506. J. J. Marsh. 162. But see Proudfoot
4 Clark V. Watson, 2 Ind. 399 ; v. Poile, 3 Dow. & L. 524 ; Macphers.
Shuttlesworth v. Hughey, 6 Ricli. 329. Inf. 356, 357, and cases cited. As to
5 Collins V. Brook, 4 Hurl. & Nor. practice under New York Code, see
276. And see Smith v. Redus, 9 Ala. Linner v. Crouse, 61 Barb. 289. As to
99. the infant's own testimony of age in
« Brooke v. Clarke, such suits, see Hill v. Eldridge, 126
' Newton v. London, Brighton, &.c. Mass. 234.
R. R. Co., 7 Dow. & L. 328 (1849) ; Dow » Crandall v. Slaid, 11 Met. 288.
682
CHAP. VI.] ACTIONS BY AND AGAINST INFANTS. § 451
to the suit ; ^ and the infant plaintiff is made liable for his own
costs.2
§ 451. Action at Lavr against Infant; the Guardian ad Litem.
— An infant can appear and defend in civil suits by guardian
only, and not by attorney, or in person.^ He cannot answer by
next friend.* The process is the same against an infant as in
ordinary cases ; but he needs some one to conduct his defence,
and hence every court, wherein an infant is sued, has power to
appoint a guardian ad litem for the special purposes of the suit,
since otherwise he might be without assistance.^ The infant
cannot nominate an attorney, nor by accepting service make
himself a party to the action.**
A guardian ad litem is one appointed for the infant to defend
in the particular action brought against him, and is therefore to
be distinguished from guardians of the person and estate." If
there be a general chancery, probate, or testamentary guardian
already appointed, it is his place to defend the infant from all
suits, so long as his authority over the infant's property con-
tinues and his interest is not adverse in the suit ; this being,
however, a matter usually regulated in this country by statute.^
This guardian ought to be a person with no interests to regard
except those of the infant defendant ; ^ he should have no inter-
est adverse to the party he appears for.
What has been observed of the appointment of prochein ami
may be said, in general, of that of the guardian ad litem. The
two correspond, and the principles of law applicable to the one
are in general to be applied to the other. i*^ In a criminal case
no guardian ad litem is appointed. But in a civil case proceed-
1 Brown v. Hull, 16 Vt. 673. ^ pinley v. Robertson, 17 S. C. 435;
2 Ilowett r. Alexander, 1 Dev. 431 ; m Cal. 5-3.
Smith V. Floyd, 1 Pick. 275. Cf. stat- ' Larkin v. Mann. 2 Paige, 27 ;
utes of other States, Kleffel v. Bullock, Roberts v. Stanton, 2 Munf. 129 ; Bac.
8 Neb. .336. Abr. Guardian, supra, cases cited by
3 Co. Litt. 88 h, n. 16, 135 6 ; 2 Stra. Bouvier.
784 ; Macphers. Inf. 358 ; Alderman i;. 8 yge Hughes v. Seller, 34 Ind. 337 ;
Tirrell, 8 Johns. 418; Knapp c. Crosby, 64 Cal. 529; Manx v. Rowlands, 59
1 Mass. 479; Miles v. Boyden, 3 Pick. Wis. 110. See 82 Ky. 226.
213; Bedell v. Lewis, 4 J. J. Marsh. ^ Hence the plaintiff's husband
562 ; Starbird v. Moore, 21 Vt. 529. should not be appointed. Bicknell v.
* Bush V. Linthicum, 59 Md. 344. Bicknell, 72 N. C. 127.
° Bac. Abr. Guardian, B. 4. ^'^ See Macphers. Inf. 358.
683
§451
THE DOMESTIC RELATIONS.
[part V.
in<TS against an infant are liable to be reversed and set aside for
irregularity, where no guardian ad litem has been appointed for
him, unless, perhaps, his regular guardian has appeared in his
defence ; and process must, besides, have been first regularly
served upon the infant ; though in this latter respect the rule
of the several States is not uniform.^ Irregularities of proced-
ure or delay in the appointment are often cured by the judg-
ment ; and lapse of time and laches on the part of an infant
after reaching majority may leave him altogether without an
opportunity to set the judgment aside, especially if no prejudice
has resulted, as in the case of his voidable transactions.^
The writ and declaration in actions at law against infants
are to be made out as in ordinary cases. In English practice,
where the defendant neglects to appear, or appears otherwise
than by guardian, the plaiutiff may apply for and obtain a sum-
mons, calling on him to appear by guardian within a given
time ; otherwise the plaintiff may be at liberty to proceed as
in other cases, having had a nominal guardian assigned to the
infant.^ A like rule prevails in New York and other States.^
1 See Abdil v. Abdil, 26 Ind. 287 ;
Jarman ». Lucas, 16 C. B. n. s. 474 ;
Frierson v. Travis, 39 Ala. 150. Lar-
kins V. BuUard, 88 N. C. 35. In some
States it is required by statute that
process shall be served upon the in-
fant defendant personally, also upon
his father, mother, or guardian. Inger-
soU V. Ingersoll, 42 Miss. 155; Irwin v.
Irwin, 57 Ala. 614 ; Helms v. Chad-
bourne, 45 Wis. 60. Service on the
guardian od litem (as well as the in-
fant), is indispensable to his appear-
ance in New York practice. Ingersoll
V. Man gam, 84 N. Y. 622. See also
63 Cal. 554 ; 19 Fla. 852. Only per-
sonal service gives jurisdiction of a
suit against an infant ; and acceptance
of service is no equivalent. 23 S. C.
154, 187; 91 N. C. 359 A judgment
rendered against a minor without the
appointment of a guardian ad litem is
not void, but rather voidable. Walken-
horst V. Lewis, 24 Kan. 420. Some
local statutes provide for the infant's
modification of a judgment against
684
him within a year after arriving at
age. Richards v. Richards, 10 Bush,
617. But the judgment is prima facie
correct, and errors must be prejudicial
to the infant's interest in order to be
thus availed of. Richards v. Richards,
10 Bush, 617. An infant may appeal
from a judgment against him at any
time during minority without waiting
for his majority. Moss v. Hall, 79 Ky.
40. Judgments at law are voidable,
not void. § 407 ; 90 N. C. 197. Even
where it does not appear that a guar-
dian ad litem appeared. 64 Cal. 529.
Statutes sometimes provide that
proceedings against non-resident de-
fendants (infants included), may be
by publication. Bryan r. Kennett,
113 U. S. 179.
2 See Townsend v. Cox, 45 Mo.
401 ; Barnard v. Heydrick, 49 Barb.
62 ; McMurray v. McMurray, 60 Barb.
117 ; Wickersham v. Timmons, 49 Iowa,
267 ; Maples v. Maples, 3 Houst. 458.
3 See Macphers. Inf. 359.
* Van Deusen v. Brower, 6 Cow.
CHAP. VI ] ACTIONS BY AND AGAINST INFANTS. § 452
Courts will go so far to protect an infant as to see that
process is properly served, a guardian ad litem appointed for
him, and the formal answer filed.^
Infancy may be specially pleaded in bar.^ The plaintiff re-
plies either that the defendant was of age, or that the goods
were necessaries, or that he confirmed the contract when he
came of age.^ If there be several defendants, the party who is
a minor should plead his infancy separately. Infancy is an
issuable plea ; and it may be pleaded with other pleas without
leave of court.^ Where there are several issues, one of which
is upon the plea of infancy, that being found for the infant, the
whole case is disposed of.^
An infant defendant is liable to costs in the same manner
as any other defendant, notwithstanding he has a guardiam.^
Macpherson says that the guardian of an infant defendant is
subject to the same liability for costs as the prochein ami, or
the guardian of an infant plaintiff." No authority is given for
this statement, and it seems that the guardian of an infant
defendant is not liable.^
If an infant comes of age pending the suit, he can assert his
rights at once for himself ; and if he does not he cannot generally
complain of the acts of his guardian ad litem. Where a person is
of age and sui juris, it is error to appoint a guardian ad litem?
§452. Chancery Proceedings by or against Infants; Corre-
sponding Rule. — The same leading principles noticeable in
60 ; Judson v. Storer, 2 South. 544 ; T Macphers. Inf. 361.
Clarke v. Gilmanton, 12 N. H. 515. 8 g^e Ferryman v. Burgster, 6 Port.
1 Alexander r. Frary, 9 Ind. 481. (Ala.) 199. Such guardian should at
2 Clemson v. Bush, 3 Binn. 413; all events be reimbursed all reasonable
Hillegass v. Hillegass, 5 Barr, 97. charges incurred in the case. Smithy.
3 See as to proof Freeman y. Nichols, Smith, 69 III. 308. A guardian ac? /(7em
138 Mass. 313. cannot absolutely bind those whom he
* 15 & 16 Vict. c. 76, § 84. See represents by a contract with an at-
Delafield v. Tanner, 5 Taunt. 856 ; torney in the suit fixing his compensa-
Dublin & Wicklow R. R. Co. v. Black, tion. Cole r Superior Court, 63 Cal.
8 Exch. 181. 86. See § 344.
* Rohrer v. Morningstar, 18 Ohio, ** Mitchell v. Berry, 1 Met. (Ky.)
679. In New York infancy may be 602. And see Marshall ;•. Wing, 50 Me.
given in evidence under the general 62 ; Stupp v. Holmes, 48 Mo. 89 ; Bur-
issue. Wailing v. Toll, 9 Johns. 141. sen v. Goodspeed, 60 111. 277 ; Patton
s AndersQu v. Warde, Dyer, 104 ; v. Furthmier, 16 Kan. 29.
Gardiner v. Holt, Stra. 1217.
685
§ 452 THE DOMESTIC RELATIONS. [PART V.
suiis at law are to be recognized in equity proceedings by or
against infants ; and the doctrines of next friend and guardian
ad litem receive ample discussion in the chancery courts.^
Among the miscellaneous matters of chancery practice relat-
ing to infants may be mentioned proceedings in partition, orders
for maintenance and education, the management of trust funds
by guardians and other trustees, and the award of custody.
These subjects have already been incidentally considered in
the course of this treatise. And we need only add that, in the
appointment of guardians ad litem, courts of chancery will exer-
cise a liberal discretion ; that in all proceedings of this charac-
ter, the appointment of a guardian ad litem to appear in behalf
of infants interested in the proceedings is regarded as proper
and even necessary, when they have no general guardian or the
general guardian has an adverse interest ; that personal service
upon the infants, besides, is usually requisite ; and that a decree
rendered without observance of such formalities may be reversed
for error .^ It is the rule in many States, as it was the old
practice in chancery, to allow an infant his day, after he attains
majority, to set aside a decree against him ; thus, in effect, ren-
dering such decrees in chancery voidable rather than binding,
so far as he is concerned, and treating him more than ever upon
the footing of a privileged person ; ^ for it is not too much to
1 See 1 Daniell, Ch. PI. 3d Am. ed. Concerning the appointment, the
65 et seq. ; lb. 150 etseq., where the Eng- court's discretion is favored as in otlier
lish and American autliorities are very interlocutory proceedings. Wallter v.
fully cited. Hull, 85 Midi. 488. Giving security for
2 lb. And see Rhett v. Martin, 4-3 costs will not ohviate tiie necessity of
Ala. 86; Girty v. Logan, 6 Bush, 8; suing in the name of next friend or
Rhoads v. Rhoads, 4-3 111.2.39; Swain guardian. Sutton i'. Nichols, 20 Kan. 43.
r. ?'idelity Ins. Co., 54 Penn. St. 455 ; A fund in chancery sliould not he given
Ivey V. Ingram, 4 Cold. 129; 39 Ark. up without securing the legal costs, &c.,
61, 235. Personal service on the infant of the guardinn«c? litem or his solicitor,
dispensed with in Georgia. 75 Ga. 792. Sheahan v. Circuit Judge, 42 Mich. 69.
•^ Simpson i\ Alexander, 6 Cold. As to infant married woman's guardian
619; Kuciienheiser v. Beckert, 41 III. oc/Z/Vcm or next friend, see /sV/^nj/f Post,
173; 1 D;iniell. Ch. PI. 3d Am. ed. 71, 47 Ind. 142. General guardians do not
167. Rule now abrogated in some represent their wards in foreclosure
States. Phillips v. Dusenberry, 15 proceedings, but a guardian ad litem
N. Y. Supr. 348. It docs not apply to an is proper. Shealian f. Circuit Judge,
infant trustee. Walsh v. Walsh, IIG 42 Midi. 69. Where the infant's pro-
Mass. 377. And see O'Rorke v. Bolin- bate guardian has an adverse interest
broke, 2 App. Cas. 814. in the suit, there should be a guardian
686
CHAP. VI.] ACTIONS BY AND AGAINST INFANTS.
§453
say that at all times and under all circumstances infants are
especial favorites of our law.
§ 453. Binding Effect of Decree or Judgment, upon the Infant.
— An infant defendant is as much bound by a decree in equity,
rendered upon due jurisdiction and fairly, — as a person of full
age ; therefore, if there be an absolute decree made against a
defendant who is under age, and who has regularly appeared by
a guardian ad litem and has been served with process, he will
not be permitted to dispute it unless upon the same grounds as
an adult might have disputed it ; such as fraud, collusion, or
fundamental error. ^ As to the binding force of judgments at
law, the rule does not seem to be equally strong.^ But where
a defendant in a suit is a minor at the time of service of sum-
mons, and the record shows that he becomes of full age before
the judgment is taken, a court is disposed to uphold the judg-
ment unless it can be impeached for fraud.^ In some States,
doubtless both judgments at law and decrees of equity now
stand on the same conclusive footing, and the infant has not
ad litem appointed. Stinson v. Picker-
ing, 70 Me. 273. Tiiough service on
the infant is tiie regular rule (supra,
§ 448), it is lield in some States tliat a
regular guardian may defend, and may
waive the service of process, even
where the minor's realty is involved.
Scott V. Porter, 2 Lea. 224; Walker
V. Veno, 6 Kich. 459. As to infant's
acceptance of service, see Wheeler v.
Ahenbeak, 54 Tex. 535.
A guardian ad litem cannot admit
away the substantial rights of infants;
his passiveness will not be construed
into a waiver; nor will a bill in equity
be taken as confessed against an in-
fant. Lane v. Hardwicke, 9 Beav. 148 ;
Tucker r. Bean, 65 Me. 352; Mills v.
Dennis, 3 Johns. Ch. 367 ; Turner v.
Jenkins. 79 111. 228: Jones v. Jones, 56
Ala. 612 ; 70 Ala. 479 ; 74 Ala. 416.
An infant may by original bill im-
peach a decree in favor of his guardian
and prejudicial to his own interests ;
nor, on general chancery rules, need he
wait until attaining full age. Sledge v.
Boone, 57 Miss. 222. A decree not
appealed from is held binding upon an
infant in the absence of fraud, who-
ever may have been his guardian ad
litem, process having been duly served
on the infant. McCrosky v. Parks,
13 S. C. 90 ; Cuyler v. Wnyne, 64 Ga.
78. What has been decreed will be
presumed rightly done. Whether guar-
dian ad litem or prorhein ami can sub-
mit an infant's interests to arbitration,
see Tucker v. Dabbs, 12 Heisk. 18.
1 1 Dan. Ch. Practice, 2f)5 ; Kivers
V. Durr, 46 Ala. 418 ; Ralston v. Lahee,
8 Clarke (Iowa), 17 ; Watkins v. Law-
ton, 69 Ga. 671 ; In re Livingston, 34
N. Y. 555 ; supra, § 448. And see, as
to allowing the infant his d;)y, § 542.
But see Tibbs v. Allen, 27 111." 119;
Driver v. Driver, 6 Ind. 286; Ashton
r. Ashton, 35 Md. 491). An infant, duly
represented by guardian, is concluded
b}' a probate decree. Sinnnons v. Good-
eil, 63 N. H. 458.
2 Supra, §§ 407, 451.
3 Stupp r. Holmes, 48 Mo. 89. And
see Blake r. Douglass, 27 Ind. 416.
087
§453
THE DOMESTIC RELATIONS.
[part V.
his opportunity to show cause as to either class on reaching
majority, except on the grounds above stated.^ Wherever the
interests of infants are involved, nothing can be established by
admissions or stipulations ; but proof is necessary .^
1 Phillips r. Dusenberry, 15 N. Y.
Supr. 318 ; Bickel v. Erskine, 43 Iowa,
213. As to either guardian ad litem or
prochein ami, he is not a party to an
action in such sense that his relation-
ship to the judge disqualifies the latter
from sitting in the case. Sinclair v.
Sinclair, 13 M. & W. 646 ; Bryant v.
Livermore, 20 Minn. 313, 342, and
cases cited.
A person of unsound mind allowed
to prosecute ejectment in his own name.
Rankin v. Warner, 2 Lea, 302. Gen-
erally the contracts of a lunatic's guar-
dian bind himself personally, and not
immediately the estate he represents
{supra, Part IV. c. 6) ; but an action at
688
law is as a rule maintainable against an
adult lunatic to recover a debt due from
him before he became insane, and this
without the intervention of guardian ad
litem. Hines v. Potts, 50 Miss. 346 ;
Stigers v. Brent, 50 Md. 214. A person
of unsound mind may file a bill in
equity by next friend, either before or
after an inquisition of lunacy, where
there is no guardian or committee.
Parsons v. Kinzer, 3 Lea, 342. But
while this is the old rule, it is not uni-
versally sustained at the present day.
Dorsheimer v. Roorback, 3 C. E. Green,
440 ; Beall v. Smith, L. R. 9 Ch. 85.
2 Claxton V. Claxton, 56 Mich.
557.
PART VI.
MASTER AND SERVANT.
. CHAPTER I.
NATUEE OF THE RELATION ; HOW CREATED AND HOW
TERMINATED.
§ 454. Definition ; this not strictly a Domestic Relation. — A
master is one who has legal authority over another ; and the
person over whom such authority may be rightfully exercised is
his servant. The relation of master and servant presupposes
two parties who stand on an unequal footing in their mutual
dealings ; yet not naturally so, as in other domestic relations,
nor necessarily because the subordinate is wanting in either
years or discretion. This relation is, in theory, hostile to the
genius of free institutions. It bears the marks of social caste.
Hence it may be pronounced as a relation of more general im^
portance in ancient than in modern times, and better applicable
at this day to English than American society.
Master and servant has, nevertheless, been uniformly re-
garded as one of the domestic relations. In lands where
human slavery is lawfully recognized, it is pre-eminently so ;
and thus were its foundations deeply laid in the civil law. In
the early days of the common law, it formed a distinct part of
the English household jurisprudence ; and in a state of society
where landed proprietors are few and wealthy, where rank and
titles are maintained with ostentatious display, where the hum-
ble born are taught to obey rather than aspire, this must so
44 689
§ 454 THE DOMESTIC RELATIONS. [PART VI.
continue. Not only cooks, butlers, and housemaids are thus
brought within the scope of this relation, but farm-hands, plan-
tation laborers, stewards, bailiffs, factors, family chaplains, and
legal advisers.
Thus is explained what at first may seem an anomaly, that
the common law, under the head of master and servant, dis-
cusses principles which in this day belong more justly to the
relation of principal and agent ; and that we constantly find an
offensive term used in court to denote duties and obligations
which rest upon the pure contract of hiring. Clerks, salaried
officers, brokers, commission merchants, all are designated as
servants ; and our topic in this broad sense is not, if words
mean anything, within the influence of the domestic law at all.
Nor is it possible to extend the lines so as to include these per-
sons without abandoning consistency of purpose, and yielding
up the vital principle of legal classification.
Were the writer then untrammelled by authority, his treat-
ment of this topic, as one of the domestic relations, would be
confined to what are denominated at common law menial ser-
vants, so called from being intra mcenia ; or rather to domestic
servants, extending the definition to all such as are employed
in and about a family in carrying on the household concerns,
whether their occupations be within or without doors, so long
as they constitute part of the family. In this restricted sense,
the law of master and servant is manifestly of little importance
to-day. But as the reader may have perceived on perusal of
the topic of guardian and ward, legal precision must sometimes
be sacrificed to legal usage ; and as terms have been carried in
both instances beyond their original signification, for the sake
of analogy, we are bound to follow a certain distance, even
though it be into logical confusion.
How much the law of master and servant is understood to
mean may be gathered from the books. Blackstone compre-
hends under this head slaves, menial servants, apprentices,
hired laborers, and servants pro tempore, such as stewards, fac-
tors, and bailiffs ; and he thereupon proceeds to discuss principles
applicable to all such classes alike.^ Eeeve carries the discus-
1 1 Bl. Com. uh. 14.
690
CHAP. I.] NATURE OF THE RELATION. § 455
sion still further, as to factors, brokers, attorneys, and agents
generally.^ Kent, writing for later readers, with a clearer
appreciation of his limits, classifies into slaves, hired servants,
and apprentices, and confines his discussion more carefully to
what might subserve the wants of the domestic law ; yet not
with exactness.^ None of these writers erred in their general
views ; the principles of the law had already spread out with
the growth of society in such a manner that they were obliged
to follow the authorities. For the same reason the present
writer, keeping in view the natural boundaries of his subject,
will nevertheless take a somewhat comprehensive and desultory
range ; thereby meeting better the practical wants of the lawyer,
and satisfying a reasonable expectation.
§ 455. Rule of Classification as to Master and Servant. —
Slavery, for obvious reasons, need no longer be treated as a
branch of our law of master and servant. We come first, then,
to hired servants, or servants proper ; and as to these the con-
tract between them and their masters arises upon the hiring ;
the servant being bound to render the service, and the master
to pay the stipulated consideration.^ The next class is that of
apprentices : fairly distinguishable, as comprising such, usually
minors, as are bound out under public statutes, and over whom,
by reason of their tender years, and in accordance with the
spirit of such statutes, the master stands somewhat in the stead
of a parent. Yet apprentices might be bound out merely to
learn a trade, and as part of the education furnished by their
judicious parents ; and Blackstone mentions that very large
sums were sometimes given with them for their instruction at
his day.* Thirdly, persons commonly known in popular speech
as workmen or employees, who are brought within the princi-
ples of one or both of the two preceding classes, and to whom
the relation of master and servant may well be said to apply.
In this class are included day laborers, factory operatives,
miners, colliers, and numerous others, of whom nothing more
definite can be said than that they are hired to perform services
1 Reeve, Dom. Rel. 339 et seq. * See 1 Bl. Com. 426; 2 Kent, Com.
2 2 Kent, Com. Lee. 32. 263, 264.
8 1 Bl. Com. 425 ; 2 Kent, Com. 258.
691
I 456 THE DOMESTIC RELATIONS. [PART VI.
of a somewhat unambitious character. If to these be added all
other occupations to which the same rules are from time to
time applied in the courts, it is gratifying to reflect that the
servant is frequently the social equal, or even the superior, of
his master. But let us invert the order, disregarding general
service for the present. In other words, let us glance rapidly
at the relation first of workmen and next of apprentices ; then
we can consider the relation of hired servants in its wider sense
more at our leisure.
§ 456. Relation of Master and Workman ; Courts of Concilia-
tion ; Trade Unions, &c. — First. The rights of workmen or
employees furnish a fruitful topic for legislation. And so
widely do the English and American systems differ in these
and kindred matters, that judicial precedents may not always
be safely interchanged between the two nations. Further is it
to be remarked that apprentices and workmen are very generally
affected by the same statutes.
Prior to 1824, English industrial legislation leaned decidedly
in favor of the master. Trade monopolies, of which Sir Edward
Coke complained so justly, were indeed greatly restricted in the
time of James I. ; ^ yet their influence was felt down to a much
later period ; and certain corporations and guilds enjoyed exclu-
sive privileges, which obstructed almost entirely the enterprise
of individuals. Attempts were made from time to time to bet-
ter the condition of the working classes, and to regulate the
payment of their wages ; but while fines and imprisonment
were the punishment of the employed, the employer suffered
rarely for his own misconduct beyond rescission of the contract.^
To exercise a trade in any town without having previously
served an apprenticeship of seven years was a penal offence.^
So, to entice or seduce artisans to settle abroad and communi-
cate their knowledge, to engage in the export of machinery, all
this was criminal, and punished with severity, the object pro-
posed by such legislation being to prevent the destruction of
home manufactures.* An important act, passed in May, 1823,
1 3 Inst. 181. See 4 Bl. Com. III. c 25 ; Macdonald, Handybook, 70,
159. &c. ; 1 Bl. Com. 426, 427.
2 See Acts 20 Geo. II. c. 19 ; 6 Geo. » 4 Bl. Com. 160. * lb.
692
CHAP. I.] NATURE OF THE RELATION. § 456
was calculated to ameliorate the condition of workmen, by en-
larging the powers of magistrates on behalf of apprentices ; yet
English petty magistrates were always inclined to obsequious-
ness, and their tribunals had not the confidence of the working
classes, as remains the fact to this day.
Public sentiment of later years, however, has undergone a
great change, and class legislation has fallen into comparative
disrepute. No principle so beneficial to workmen has been
introduced as that of arbitration. This doctrine of arbitration
appears distinctly set out in the Act 5 Geo. IV. c. 96, of 1824,
a consolidating statute which gets rid of former inequalities,
and marks the latest era in English industrial legislation. Yet
the arbitration provisions of this act are said not to have
worked well in practice, partly, as a writer suggests, because
of the requisite intervention of a justice of the peace, partly
from its lack of simplicity.^ But a very recent act establishes
"equitable councils of conciliation" to adjust differences be-
tween masters and workmen, upon a plan much resembling the
French courts of Prud'hommes? The plan is that masters and
workmen shall each elect their own delegates to a board or coun-
cil, which is empowered to fix upon the rate of wages between
employer and employed, and otherwise adjust disputes pecu-
liarly appertaining to such service.^ And a still later act sets
forth tl^e details of such agreements quite fully, and further
provides for the designation of arbitrators in case of a
disagreement.*
There is comparatively little legislation of this sort to be
found in our States. Trade is less fettered in America than it
1 Macdonald, Handybook, 137, — a to adopt the system from its manifest
email and convenient compendium pub- convenience. To introduce such a
lished in 1868. court into England is said to have been
2 30 & 31 Vict. c. 105 (1867). a favorite speculation of the late Lord
8 This experiment had been tried in Brougham. See Macdonald, Handy-
the English manufacturing districts for book, 274.
some years previous to the passage of * 35 & 36 Vict. August 6, 1872. The
the act, and with marked success. A principle of arbitration in the matter
celebrated strike at Nottingham, in of trade disputes was adopted in 1872
1860, led to its first practical applica- by master-builders and masons on a
tion , and though there was then no strike, upon the recommendation of a
statute countenancing such a court, committee of the Social Science Asso-
manufacturers elsewhere were soon led ciation.
693
§ 457 THE DOMESTIC RELATIONS. [PAKT VI.
was in England ; and disputes between master and servant
have been generally adjusted between themselves or by the
ordinary legal methods. The fluctuation of Society in America,
the variety of pursuits always open to active competitors, the
opportunities freely afforded for social elevation, together with
the fact of a widet distribution of our manufacturing population
than in England, contribute to the difference. The employee
of to-day becomes the employer of to-morrow. Yet humane
laws are frequently enacted, and still more frequently called
for. In Connecticut, Pennsylvania, and other States, children
are specially protected from laborious toil unsuited to their
years, and the hours of work in the mills are reduced to a
proper limit.^ And young children are to be taught the ne-
cessary branches of a common education, notwithstanding their
employment in manual labor.^
Trade associations are often formed in both countries to pro-
tect the rights of workmen in certain mechanical pursuits.
But arbitrary and oppressive conduct on the part of such
associations is not to be countenanced. Thus, where a trade
association conspires to break down the business of a master
mechanic, because he will not pay a sum demanded, by inter-
fering with his employment of workmen, he may sue them for
damages.^ At common law an indictment lies for conspiring
to coerce workmen by violence or intimidation to leave their
employer.*
§ 457. Relation of Master and Apprentice. — Second. The
relation of apprentice was, in its original spirit and policy, as
Kent has observed, calculated to give the apprentice a thorough
trade education, and to advance the mechanic arts.^ To some
1 See 2 Kent, Com. 12th ed. 266, uphold a strike may, in a strong case of
and notes referring to statutes of Penn- oppression, be indicted for a conspiracy,
sylvania, Maine, New Hampshire, Con- Commonwealth v. Curren, 3 Pittsb. 143.
necticut, and New Jersey. And see post, c. 4.
2 There are similar acts in England * So in Vermont. State i'. Stewart,
lately passed. See Factory Acts, 7 59 Vt. 273. Associations attempting
Vict. c. 15 ; 10 Vict. c. 29 ; 16 & 17 to coerce workmen to threaten era-
Vict. c. 104; 24 & 25 Vict. c. 117; 30 ployers, to boycott, &c., render them-
& 31 Vict. c. 103. selves liable to suit. Old Dominion Co.
8 Carew v. Rutherford, 106 Mass. 1 ; v. McKenna, 30 Fed. R. 48.
Walker v. Cronin, 107 Mass. 555. The ^ 2 Kent, Com. 266.
members of such an association who
694
CHAP. I.] NATURE OF THE RELATION. § 457
extent, it has that significance still. The English apprentice
system, beyond what has just been noticed of working-men
generally, has, however, referred more especially to the poor or
parish apprentices, who, under a late act, may be bound out to
the sea service as well as a trade.^ In many American States
there appear to exist no provisions for binding out others than
poor children and orphans. Again, in other States, as New
York, Massachusetts, and Pennsylvania, the provisions are
more general.^ The principle of such statutes is to permit
those having custody to assign to strangers a certain authority
over their children, until the latter reach majority ; and town
authorities, or overseers of the poor, may, in many instances,
supply the want of natural protectors and keep the young from
vicious surroundings. But, inasmuch as the infant's own
assent is now made essential to such instruments, so far as
binding him beyond the age of discretion is concerned ; inas-
much as courts do not hesitate to disregard them, if at all
inequitable, or even perhaps if drawn up not in strict con-
formity to statute; while, according to our policy, the child's
freedom to dispose of his own time in general when left to earn
his living, is very favorably regarded; it must be said that
apprenticeship by indenture is now thought less desirable than
it was formerly. Public authorities may resort to it with ad-
vantage for securing good homes to the homeless ; parents not
equally so ; the poor, however, may often thus secure a trade
education for their children without cost to themselves. There
can certainly be nothing unreasonable in permitting one of
suitable discretion to make any fair contract of service, whether
verbal or in writing, and the advantages may often constitute
an adequate compensation for his labor. If he be very discreet
1 1 Bl. Com. 426, notes by Chitty 74 N. C. 210. Incorporated institu-
and others. As to the Mississippi tions, like a juvenile asylum, it is held,
rule wliere a chancery court binds may thus be authorized by a legisla-
out, see Howry v. Callowey, 48 Miss. ture. People v. Juvenile Asylum, 2
587. Thomp. & C. 475. Overseers of poor,
■^ See 2 Kent, Com. 262, passm, 12th commissioners of charities, &c., have
ed., and n. Jurisdiction for binding authority in some States. People u.
out in this country is given in» many Weissenbach, 60 N. Y. 385 ; Glidden v.
States to the judge of probate. Owen Unity, 10 Fost. 104.
V. State, 48 Ala. 328 ; Spears v. Snell,
695
§457
THE DOMESTIC RELATIONS.
[part VI.
he will not, however, make a contract to last without possible
modification for any great length of time.^
1 There are many English and Amer-
ican decisions as to the mutual rights
and duties of master and apprentice,
most of which are of local or limited
application. The English cases will
be found in Macdonald, Handybook,
76, 216. Prospective damages cannot
be recovered by the master where the
apprentice unlawfully quits the service.
Lewis V. Peachey, 1 H. & C. 518. To
make the master liable on his cove-
nant to teach a trade, it must appear
that the apprentice was ready and will-
ing to be taught. Raymond v. Minton,
L. R. 1 Ex. 244. Such indentures are
strictly construed, and must be exe-
cuted according to statute. St. Nich-
olas V. St. Botolph, 12 C. B. N. s. 645.
Questions relating to the conviction of
apprentices or workmen for misconduct
constantly arise under the English stat-
utes ; also as to the parish settlement
of pauper apprentices. Macdonald,
76 ; lb. 218. See Boast v. Firth, L. R.
4 C. P. 1, as to actions for breach of
indenture of apprenticeship. It is
doubtful whether courts of equitj' in
England would cancel indentures of
apprenticeship except for fraud. Webb
V. England, 29 Beav. 44. The master
has his remedies against third persons
for enticement, on the principles usu-
ally applicable to servants. Cox v.
Muncey, 6 C. B. n. s. 375. And see
Royce v. Charlton, 8 Q. B. T>. 1.
In this country it would appear to
be the rule that contracts of appren-
ticeship, not written, signed, sealed, or
otlierwise executed in strict accord-
ance with statute, are invalid ; or,
rather, are voidable by the parties con-
cerned. Maltby v. Harwood, 12 Barb.
473 ; Bolton v. Miller, 6 Ind. 262 ; Bal-
lenger i'. McLain, 54 Ga. 159; Phelps
V. Pittsburgh R. 99 Penn. St. 108. But
see Brewer v. Harris, 5 Gratt. 285. And
to the validity of the indentures the
judge's assent may be necessary. Hun-
sucker V. Elmore, 54 Ind. 209. Yet
the relation of master and servant may
696
be inferred, notwithstanding, from the
acts and conduct of the parties. Malt-
by V. Harwood, supra ; Page v. Marsh,
36 N. H. 305. A contract which in ef-
fect was a contract of apprenticeship,
though not sealed as the statute pre-
scribed, was lately held valid as be-
tween the infant's father and the per-
son hiring the infant's services, so that
a release of the right of the service by
the master afforded a good considera-
tion for a note from the father. Crom-
bie V. McGrath, 139 Mass. 550. In
many instances the courts exercise a
supervisory influence ; and they will
insist upon the provisions being rea-
sonable ; in some cases, requiring the
insertion of fair covenants on the mas-
ter's part, such as instruction of the
apprentice in some particular trade ;
and they will even cancel indentures
which are unsuitable in terms or were
fraudulently procured. Owens v. Chap-
lain, 3 Jones, 323; Finch v. Gore, 2
Swan, 326; Bakers v. Winfrey, 15 B
Monr. 499 ; Lammoth v. Maulsby, 8
Md. 5 ; Bell v. Herrington, 3 Jones,
320; Hatcher v. Cutts, 42 Ga. 616,
Mitchell V. McElvin, 45 Ga. 458. Both
in this country and in England, the
apprentice on reaching full age may
abandon the contract ; though the rule
of avoidance is not expressed with
uniformity Drew v Peckwell, 1 ¥j I)
Smith, 408; Walker v. Chambers, 5
Harring. 311 , Forsyth v Hastmgs 27
Vt 646 , Wray v West, 15 L T n s.
180, Q. B It is held that overseers of
the poor, in binding out paupers as ap-
prentices, act as public officers and not
as the agents of their towns Glidden
V. Unity, 10 Fost. 104. And see Bard-
well V. Purrington, 107 Mass. 419. The
government, by accepting the appren-
tice into military service, confers upon
him the right to his own pay and
bounty. As to agricultural contracts
on southern plantations, see 18 S. C.
610; Johnson v. Dodd, 56 N. Y 76.
The master's right of custody as
CHAP. I.]
NATURE OF THE RELATION.
§458
§ 458. Strict Relation of Master and Servant ; Contract of
Hiring. — Third. To come, then, to tlie strictly legal relation
against an unwilling apprentice, who
wishes to return to his parents, appears
in this country to be quite doubtful,
though the indentures be well drawn ;
the wishes of the child being appar-
ently regarded as paramount. People
V. Pillow, 1 Sandf. Sup. 672. In sev-
eral instances, where imperfect inden-
tures had been terminated, the master
was held not liable for the apprentice's
services on a f/uantum meruit, their origi-
nal engagement contemplating nothing
of the kind. Maltby v. Harwood, 12
Barb. 473 ; Page v. Marsh, 36 N. H.
305; Hudson v. Worden, 39 Vt. 382.
The assignment of apprenticeship is
in some States pronounced void, the
trust being personal ; and in general it
is voidable by the infant liimself. Tuck-
er V. Magee, 18 Ala. 99 ; Huffman v.
Rout, 2 Met. (Ky.) 50; Allison v. Nor-
wood, Busbee, 414 ; Commonwealth v.
Van Lear, 1 S. & R. 248; Phelps v.
Culver, 6 Vt. 430. Yet the infant's
renewed assent may give force to it.
See Williams v. Finch, 2 Barb. 208;
Nickerson v. Howard, 19 Johns. 113.
In some States, and perhaps in all, in-
fancy is a good plea to action of cove-
nant on such indentures. McNight v.
Hogg, 1 Const. 117. See Brock r. Par-
ker, 5 Ind. 5-38. As to the construction
and method of execution of such inden-
tures, see also Whitmore v. Whitcomb,
43 Me. 458 ; McPeck v. Moore, 51 Vt.
269; Van Dorn v. Young, 13 Barb.
286 ; GUdden v. Unity, 10 Fost. 104 ;
Wright V. Brown, 5 Md. 37. A child
held under invalid indentures of ap-
prenticeship may be discharged upon
habeas corpus. Cannon v. Stuart, 3
Houst. 223 ; Commonwealth v. Atkin-
son, 8 Phil. 375. For enticement of
an apprentice, or other injury interfer-
ing with the service, the master has
the usual remedies against third per-
sons ; and sometimes the party enticing
may be indicted. Holliday v. Gamble,
18 ill. 35; Bardwell v. Purrington, 107
Mass. 419; Ames v. Union R., 117
Mass. 541 ; Doane v. Covel, 56 Me.
527 ; Hooks v. Perkins, Busbee, 21 ;
Smith V. Goodman, 75 Ga. 198. Though
this seems to be because of the rela-
tion of servant rather than apprentice.
See c. 4, infra. Statutes regulate this
subject in various States. 77 Ala. 84.
Where the master permanently injures
the apprentice by his harsh and op-
pressive treatment, the parent has
been allowed to recover damages. Lar-
son V. Berguist, 34 Kan. 334. And a
father who executes such indenture is
bound to exercise his paternal author-
ity to aid in its enforcement. Van
Dorn V. Young, 13 Barb 286. A set-
tlement between master and appren-
tice, made soon after the expiration of
the term, will be viewed with great
jealousy. McGunigal v. Mong, 5 Barr,
269.
As a rule, except in cases of pau-
pers, both the English and American
statutes require that the infant shall
execute the deed if fourteen, as well
as his parents, and the policy of the
law is against binding out one of dis-
creet years, imless he is made a party
to the instrument. See 2 Kent, Com.
12th ed. 263, 264, and notes; Stats.
Vermont, New York, Maine, &c. The
infant's informal assent will not bind
liim. Commonwealth v. Moore, 1
Ashm. 123 ; Squire v. Whipple, 1 Vt.
69. But see Fisher v. Limger, 4 Vroom,
100. It must be distinctly expressed
in the indenture. Harper v. Gilbert,
5 Cush. 417. And where the court
binds out, prudence requires that the
infant sliould be present. Mitchell i\
Mitchell, 67 N. C. 307. The mother's
consent, too, as parent, where the father
is dead, or incapacitated from giving
consent, is favored in many States.
People V. Gates, 43 N. Y. 40. And
under our statutes a child may fre-
q>iently be apprenticed to Shakers, as
well as to any other master. People v.
Gates, 43 N. Y. 40; Curtis v. Curtis,
5 Gray, 535. An apprentice's resi-
697
§ 458 THE DOMESTIC RELATIONS. [PART VI.
of master and servant. This contract arises purely upon the
hiring. If the hiring be general, without any particular time
limited, the old law construes it into a year's hiring.^ Bujb the
equity of this rule extended only to such employment as the
change of seasons affected; as where the servant lived with
his master or worked at agriculture. By custom, moreover, such
contracts have become determinable in the case of domestic
servants, upon a month's notice, or, what is an equivalent, pay-
ment of a month's wages.^ Laborers are hired frequently by
the day, and to hire by the week is not unusual.^ Yet, as to
hiring in general, the rule still is that if master and servant
engage without mentioning the time nor the frequency of pay-
ment, it is a general hiring, and in point of law a hiring for a
year,* a rule, however, founded in English rather than American
usage. Custom modifies this principle, and the date and fre-
quency of periodical payments are material circumstances in
each case. The principle of yearly hiring is applicable to all
contracts of hiring and service, whether written or unwritten,
whether express or implied, and whatever the nature of the
service ; its modifications arise whenever the contract contains
stipulations inconsistent with its application, or where, from
some well-known custom upon the subject, the parties may be
considered to have contracted with sole reference to such
custom.^ In this country, at least, if a contract for hiring is
at so much per month, it will readily be presumed that the
hiring was by the month, even if nothing was said about the
dence during minority would appear prentices, authorizing a complaint, and
to be that of his master. Maddox v. if the master be culpable, the cancella-
State, 32 Ind. 111. A minor who per- tion of the indenture. Fenn v. Ban-
forms service under invalid articles croft, 49 Conn. 216.
may recover therefor. Kerwin v. My- i Co. Litt. 42; 1 Bl Com. 425.
ers, 71 Ind. 359. For his master's 2 Nowlan v. Ablett, 2 Cr. M. & R.
breach of indentures the apprentice 54; Fawcett i;. Cash, 5 B. & Ad. 904;
may sue on reacliing full age. Cann Fewings v. Tisdal, 1 Exch. 295.
V. Williams, 3 Houst. 78. As to. dis- 3 r. y. Pucklechurch, 5 East, 382.
missal of an apprentice for misbe- * Fawcett i'. Cash, 5 B. & Ad. 904.
havior, &c., under the terms of the See Lilley v. Elwin, 11 Q. B. 742.
contract, see Westwick v. Theodor, L. ^ Smith, Mast. & Serv. 41, 42 , Rex
R. 10 Q. B. D. 24. There are local v. Worfield, 5 T. R. 506; Baxter v.
codes which provide for inquiry by Nurse, 1 Car. & K. 10; Hathaway v.
parents, guardians, or the municipal Bennett, 10 N. Y. 108.
authorities, into the treatment of ap-
698
CHAP. I.] NATURE OF THE RELATION. § 458
terra of service.^ But the periodical payment is not conclusive
as to the periodical hiring where the evidence shows an arrange-
ment for a different period ; there is no such precise rule here
as in the relation of landlord and tenant.^ In this country,
moreover, custom bears very strongly upon the interpretation of
all contracts of service.^
The rule as to hiring does not apply to cases where there has
been a service, but no contract of hiring and no circumstances
from which a contract can be inferred. And a contract of
hiring cannot be presumed where the circumstances tend to
rebut such a presumption ; as where paupers have been taken
to live with their relatives out of charity,* or where the agree-
ment was for cohabitation and not for service.^
We find at the outset, then, a distinction made in practice
between servants menial or domestic, and other servants ;
which distinction is founded upon a custom of dissolving the
relation, not at the end of a year, but at any time upon giving
the servant a month's wages. An English writer says that no
general rule can be laid down as to who do and who do not
come within the category of menial servants ; every case must
stand upon its own circumstances.^ But in a late case, where
the subject was fully discussed, the disposition manifested was
to extend the word " domestic " beyond the signification
"menial;" and a family huntsman was brought within the
1 Beach v. Mullin. 5 Vroom, 343. Standon Massey, 10 East, 576 ; 2 Salk.
2 Tatterson v. Suffolk Man. Co., 106 535 ; Rex v. Coggeshall, 6 M. & S.
Mass. 56 ; Prentiss v. Ledyard, 28 Wis. 264. Or if the agreement be to do work
131. by the piece or job. Rex v. Woodhurst,
3 Lyon V. George, 44 Md. 295. 1 B. & Aid. 325. Or if certain portions
* Rex V. Sow, 1 B. & Aid. 178; of tiie year are specially excepted.
Smith, Mast. & Serv. 42. Rex v. St. Helen's, 4 B. & Ad. 726. Or
* Rex V. Northwingfleld, 1 B. & Ad. if the master has not entire control,
912. Where either party is at liberty and the servant is at liberty, when not
to determine the service at any time engaged for his master, to work for
without notice, the hiring cannot be others ; though this rule is to be cau-
considered a yearly contract. Smith, tiously applied. Rex v. Killingholme,
Mast. & Serv. 43, 44, and cases cited ; 10 B. & C. 802. See Reg. v. Raven-
Rex V. Great Bowden, 9 B. & C. 240, stonedale, 12 Ad. & El. 73. The same
and cases cited. Or if the hiring be principle holds good where the hours
expressly for less than a year ; although of working are limited by contract,
done purposely to avoid the conse- Reg. v. Preston, 4 Q. B. 507.
quences of a yearly hiring. Rex v. " Smith, Mast. & Serv. 2d ed. 52.
699
§ 459 THE DOMESTIC RELATIONS. [PART VI.
above rule.^ The reason is apparently that contracts for ser-
vices which bring the parties into such close proximity and
frequency of intercourse that they are valuable only when
mutually agreeable and otherwise intolerably annoying, should
be readily terminated at the option of either party .^ A gover-
ness engaged at a yearly salary, though residing in the house,
is, however, held not to be within the class of menial or
domestic servants ; regard being paid by the court to the
dignity of her position.^ But the head gardener is, though
living not in the master's house, but in his own cottage in the
domain.*
§ 459. Contract of Hiring affected by Statute of Frauds. — At
the common law, a servant might be hired either by deed or by
a parol contract, but when hired or retained by deed he could
only be discharged by an equally formal instrument; when
hired by parol he might be discharged by parol.^ But since
the enactment of the statute of frauds, contracts of hiring must
be frequently expressed in writing, in order to be legally effect-
ual. Under this statute, the contract of service may be verbally
made and proved if it is capable of performance within a year ;
otherwise, it must be in writing. Hence a verbal agreement to
hire for a year, commencing at a future day, is insufficient.^ In
short, a contract for personal service which is not to go into
operation for a year, or is to continue in force and hold the
parties together for a longer period, must be in writing.'^ Yet
it seems that a contract made on a certain day to serve for a
year from the following day is not within the statute of frauds.^
1 Nicoll V. Greaves, 17 C. B. n. s. 27. wife to "live in his family " and " work
The dictionaries furnish little aid on for him,'" this is a contract for their
this point. personal services. Jennings v. Lyons,
2 Per Erie, C. J., ih. See further, 39 Wis. 553.
Nowlan v. Ahlett, 2 Cr. M. & R. 54 ; ^ Smith, Mast. & Serv. 16 ; Dalt.
Joiinson V. Blenkensopp, 5 Jur. 807 ; Just. c. 58.
Crocker v. Molyneux, 3 Car. & P. 470 ; 6 Bracegirdle v. Heald, 1 B. & Aid.
Ex parte Walter, L. R. 15 Eq. 412; 722; Giraud v. Richmond, 2 C. B.
Stone V. Western Transportation Co., 835.
38 N. Y. 240. ^ See 1 Smith, Lead. Cas. 432, and
2 Todd V. Kerrich, 8 Exch. 151 ; 14 American notes, where this suhject is
E. L. & Eq. 433. thoroughly examined.
* Nowlan V. Ablett, 2 Cr. M. & R. » Cawthorn v. Cordrey, 32 L. J. n. s.
54. Where one hires a man and his C. P. 152.
700
CHAP. I.] NATURE OF THE EELATION. § 460
And where, under a contract for a year's service, the employed
party has gone on from year to year, and at the end of a year
is allowed to go on without objection, a presumption arises that
both parties have assented to continuing the contract in force
another year, and the statute does not apply.^
§ 460. Contract of Hiring; -when in Restraint of Trade or Op-
pressive as to Length of Term. — Eestraint of trade sometimes
enters as an element into agreements between master and ser-
vant. If professional men, manufacturers, or tradesmen take
clerks, apprentices, or workmen into their employ, and require
them to agree that they will not carry on a like profession,
manufacture, or trade within certain limits, — this for the pur-
pose of securing themselves against competition, — the contract,
being in restraint of trade, is illegal and void.^ The general
rule is that, in order to render such a contract valid at law, the
restraint must be (1) partial only; (2) upon an adequate, or,
as the law now seems to stand, not a mere colorable restriction ;
(3) reasonable and not oppressive.^ Even then equity would
be loath to enforce it specifically if it be at all hard or even
complex ; * though in many cases it will do so.^
To the same general head as contracts in restraint of trade
belong contracts by which the services of individuals are secured
for a specified time, or for life, to a particular master. Contracts
for life are not illegal at common law ; but they are very
strongly objectionable ; and in this country it is doubtful
whether they would ever be enforced, so contrary are they to
the spirit of our institutions.^ Yet some writers commend such
contracts; and in England agreements whereby, in substance,
workmen engaged to serve, for a term of seven years, certain
1 Tatterson r. Suffolk Man. Co., 106 3 1 Smith, Lead. Cas. 521.
Mass. 50; Sines v. Superintendents, 58 * Kenible v. Kean, 6 Sim. 3-35.
Mich. 503. See Norton v. Cowell, 65 ® lb. ; Benwell v. Inns, 24 Beav.
Md. 359. 307. And see Smith, Mast. & Serv. 51
2 Com. Dig. " Trade," D. 3 ; Mitchel et sec/.; Mallan v. May, 11 M. & W.
V. Reynolds, 1 P. Wms. 181; s. c. 1 653; Mumford y. Gething, 7 C. B.n.s.
Smith, Lead. Cas. 508, Am. ed. notes ; 305.
Lange v. Werk, 2 Ohio, n. s. 520 ; Law « See Wallis v. Day, 2 M. & W. 277 ;
rence v. Kidder, 10 Barb. 641 ; Oilman 1 Smith, Lead. Cas. 521.
V. Dwight, 13 Gray, 356; Duffey v.
Shockey, 11 Ind. 7L '
701
§ 461 THE DOMESTIC RELATIONS. [PART VI.
persons or their firm, or again, at a certain scale of wages sub-
ject to determine in the event of sickness or incapacity of the
men or cessation of business by the employer, were considered
valid and unobjectionable.^
But, in Massachusetts, a contract made by an adult with a
citizen of the United States to serve him, " his executors and
assigns," for five years, without fixing the nature and extent of
the services, or the place of their performance, in consideration
of ten dollars, and of being fed, clothed, and lodged, and at the
expiration of the contract being paid " the customary freedom
dues," is pronounced illegal and void, even if valid where made.^
" Such a contract, it is scarcely necessary to say, is against the
policy of our institutions and laws," was the language of the
court.
§ 461. Creating the Relation of Service ; Quasi Servants. —
As a general rule, every person of full age, free from all other
incompatible engagements, may become either a master or a
servant ; and the service need not be performed under a legally
binding contract, for the service may be constituted de facto?
The usual law of contracts applies to all who enter the relation.
Thus an offer to employ another does not bind the person
making it until he is given to understand that it is accepted ;
and there must appear, as to adults at least, a voluntary coinci-
dence in a common understanding, whether by writings or parol.*
And arrangements for remunerating a servant by a portion of
the profits may, under some circumstances, constitute him a
partner rather than a mere servant.^
The relation of master and servant is created, so far as may
affect the rights of third persons, when one suffers another to
proceed in a service in which the latter engaged only as a vol-
unteer.^ Yet one cannot by merely rendering services volun-
tarily, without request or assent, compel the other to become
his debtor.' The relation -is created, too, where the servant is
1 Pilkington v. Scott, 15 M. & W. 3 Smith, Mast.fe Serv. 1.
657 ; Hartley v. Cummings, 5 C. B. 247. * McDonald v. Boeing, 43 Mich. 394.
See 1 Smith, Lead. Cas. 621. ^ Smith, Mast. & Serv. 29.
2 Parsons v. Trask, 7 Gray, 473. 6 Hill v. Morey, 26 Vt. 178.
And see Mary Clark's Case, 1 Blackf . ^ Webb v. Cole, 20 N. H. 490 ; Alton
(Ind.) 122. V. MuUedy, 21 111. 76.
702
CHAP. I.]
NATURE OF THE RELATION.
§461
employed, not by the master directly, but by some employee
in charge of a part of the business with authority to engage
assistants.^
A municipal or other corporation may sustain the quasi rela-
tion of master and servant with those in its employ, so as to be
liable for the negligence of the person employed.^ Such a rela-
tion between railroad companies and those in their employ is
constantly recognized in the courts. The two terms " master
and servant " and " principal and agent," are, in fact, frequently
interchanged as though identical in meaning ; and, indeed, one
is usually quite as inexact as the other.^ Where one is neither
employed, paid, nor controlled by another, he is not his servant
in the legal sense.^ We have seen that adult children remaining
in a family may be de facto servants so as to lay the foundation
of certain suits. ^ Indeed, the relation of master and servant
may be implied from circumstances, in such sense that one may
^ Rummell v. Dil worth, 111 Penn.
St. 343.
'2 See Scott v. Mayor of Manchester,
37 E. L. & Eq. 495.
3 In Ohio the distinguishing feature
of the relation of service has been said
to be that the employer keeps control
over the mode and manner of work,
and this applies to contractor, agent,
or servant ; independent contracts, how-
ever, not falling within the rule. Cin-
cinnati V. Stone, 5 Ohio St. 38. But
in Illinois, contractors building a rail-
road appear to be treated as servants
of the company in a more extended
sense. Chicago, &c. R. R. Co. v. Mc-
Carthy, 20 111. 385. There is much
difficulty in applying the rule as to
railroad contractors. See 1 Redf. Rail-
ways, 506 ; 19 Neb. 620 ; 57 Vt. 252 ;
62 Miss. 565 ; Edmundson v. Pitts-
burgh R., Ill Penn. St. 316. In Con-
necticut it is said that the manner of
paying for work constitutes no criterion,
nor the existence of actual present con-
trol and supervision on the part of the
employer ; but that these are both cir-
cumstances to be weighed in each case.
Corbin v. American Mills, 27 Conn.
274.
< McGuire v. Grant, 1 Dutch. 356.
See Water Co. v. Ware, 16 Wall. 566.
One who orally contracts to serve as a
farm laborer comes within the relation
of master and servant. Daniel v. Swear-
engen, 6 Rich. 297. Where the owner
of a building employs a plumber to re-
pair pipes, or a roofer to repair a roof,
in his own way, retaining himself no
direction, he is not master in the sense
of liability to third persons for this
party's negligence. Bennett v. True-
body, m Cal. 509 ; Hexamer v. Webb,
101 N. Y. 377. Cf. Linnehan v. Rol-
lins, 137 Mass. 223, where an owner
was lield liable for a contractor, w)io
agreed to take down a building care-
fully under the owner's direction and
subject to his approval. And see 82
Mo. 150, 276.
5 Whether the relation of master
and servant actually existed, is the
fundamental inquiry in suits where a
plaintitf seeks to make one person
responsible for the negligence of an-
other ; the only true basis of responsi-
bility in such cases being the existence
of the master and servant, so that one
selects and controls tlie persons em-
ployed, directs the execution of the
703
§ 462 THE DOMESTIC RELATIONS. [PART VI.
be held liable for the acts of another as his servant ; no express
contract need be shown.^ One may let his own servant (with
or without his own personal property) to another in such a way
as to make the hirer the responsible master pro hac vice.^
§ 462. How Contract for Service is terminated ; Withdrawal
or Resignation ; Causes of Discharge, &c. — We are now to in-
quire in what manner the relation of master and servant may
be terminated. The summary and harsh method which befits
a real master is to discharge the servant. The servant on his
part will summarily withdraw from the service, if dissatisfied,
or, by striking, as it is called, invite his prompt discharge. The
milder termination of the employment relation is by a servant's
resigning, and a fair employer will often prefer to induce his
employee, if he can, to tender his resignation and then accept
it, rather than resort to dismissal and a discharge.^ The causes
which justify discharge by the master are various, and the rule
depends somewhat upon the nature of the particular employ-
ment in question. But most decisions are reducible to three
leading classes : Jirst, wilful disobedience of a lawful order ;
second, gross moral misconduct; tJm^d, habitual negligence or
kindred fault in the employment.*
An instance of the first class came before Lord Ellenborough,
where a farmer's servant was ordered to go with the horses a
mile off just as dinner was ready, and he said he would not go
until he had had his dinner.^ And another, more recent, is
where a farm-servant refused to work during harvest without
work, and so on. See post, c. 4 ; Robin- Q. B. D. 890 ; Joslin v. Ice Go., 50
son V. Webb, 11 Bush, 464; Conlin v. Mich. 516.
Cliarlestown. 15 Rich. 201 ; Coomes v. i Growcock v. Hall, 82 Ind. 202.
Houghton, 102 Mass. 211 ; Railroad v. Prima facie one found doing service for
Fanning, 15 Wall. 649 ; Water Co. v. another is in his employ. 17 Mo. App.
Ware, 16 Wall. 566 ; 1 Redf. Railw. .3d 212.
ed. 506-509 ; Ballon v. Farnum, 9 Al- 2 Y)q Voin v. Michigan Lumber Co.,
len, 27 ; Meara v. Holbrook, 20 Ohio 64 Wis. 616.
St. 137; Palmer v. Portsmouth, 4-3 ^ Language, requesting to resign,
N. H. 265 ; Harrison r. Collins, 86 Penn. was construed into a civil form of per-
St. 153. See also, as to employment in emptory discharge where the epiployee
a colliery, Rourke v. Colliery Co., 2 C. left. Jones v. Graham Trans. Co., 51
P. D. 205. As to the actual master Mich. 539.
where a driver was hired, see Quar- * Smith, Mast. & Serv. 70; 2 Kent,
man v. Burnett, 6 M. & W. 499 ; 14 Com. 259.
6 Spain V. Arnott, 2 Stark. 256.
704
CHAP. I.] NATURE OF THE RELATION. § 462
beer/^ In a carefully-considered English case the court went
even so far as to justify dismissal of a housemaid who persisted
in leaving the house without permission, to visit a sick and
dying mother.^ In these cases, and especially the last, the
authority of the master is very strongly upheld ; more so, per-
haps, than American policy would concede. Where the mis-
conduct is slight, and a first offence, and the master has not
suffered essentially by it,^ where the reasons for disobedience
are extreme, and where the servant's general conduct is exem-
plary, this, it seems, ought to go strongly in his own justification ;
for the mutuality of contracts is always properly considered.
An obstinate refusal to do an unlawful act is clearly no ground
for dismissal.* But for insolence and wilful disobedience of
orders, especially if repeated, a servant may generally be
dismissed.^
Instances of the second class are not uncommon. Immorality
is sufficient cause for dismissal ; ^ even the pregnancy of a maid-
servant, according to Lord Mansfield.'^ Embezzlement is a good
ground, though the sum embezzled be less than the arrears of
wages.^ The same is true of robbery.^ And of indecent and
immoral behavior, especially if exhibited towards others in the
master's employ, or otherwise to his immediate detriment. ^^
Habitual drunkenness is doubtless a good ground if it seriously
interferes with the due performance of the particular service
and the master's interests/*^ Acts and conduct which pointedly
indicate fraudulent misbehavior toward the master may, and
should, justify prompt dismissal.^^ Secret speculations or fast
1 Lilley v. Elwin, 11 Q. B. 742. 6 Atkin v. Acton, 4 Car. & P. 208.
2 Turner v. Mason, 14 M. & W. 112. ^ Cald. 11 ; Ih. 57.
And see Smith, Mast. & Serv. 71. « Brown v. Croft, 6 Car. & P. 16 n. ;
3 Absence for a single day, not un- Spotswood e?. Barrow, 5 Exch. 110.
reasonable nor involving serious con- " Lil)liart v. Wood, 1 W. & S. 265;
sequences to the master, held a first Trotman r. Dunn, 4 Camp. 211 ; Smith,
disobedience not justifying dismissal. Mast. & Serv. 72.
Shaver v. Ingham, -58 Mich. 649. i' Weaver v. Halsey, 1 III. App. 558 ;
* See Jacquot v. Bourra, 7 Dowl. 348. Drayton r. Reid, 6 Daly, 442.
5 Beach v. Mullin, 5 Vroom, 343. " Gonsolis v. Gearhart, 31 Mo. 585.
Insubordination and disrespectful con- See Lord Denman, in Wise v. Wilson,
duct towards one's employer is a siifR- 1 Car. & K. 662 ; 75 Ga. 466.
cient ground for his disctiiarge. Bailey i- See Horton v. McMurtry, 5 Hurl.
V. Lanahan, 34 La. Ann. 420. & Nor. 667; Singer v. McCormick, 4
45 705
§ 462 THE DOMESTIC KELATIONS. [PART VI.
living, when found out, may justify the dismissal of one whose
position involves responsibility for the funds of others.^
The third class furnishes many examples ; and yet the rule
here is to be laid down with much caution, for a practical appli-
cation is difficult. Detriment to a master's interests may occur
through the servant's fault outside of the strict classification
here referred to. There are some English cases where conduct
which might ordinarily seem justifiable on a servant's part has
been punished by dismissal, the court carrying out the then pre-
vailing policy against teaching the secrets of trade to strangers
or foreigners.^ So have many decisions seemed to sustain the
master, where the servant lacked in blmd devotion to his self-
ish interests, or asserted a generous independence of opinion a
little too boldly.^ But at the present day, certainly in America,
more might be claimed for the servant and less for the master.
Yet the legal principle is correct that for habitual negligence or
unwarranted absence, or for any such conduct in fact as pre-
vents a mutual agreement from being carried out to the reason-
able satisfaction of the employer, the person employed may be
dismissed ; nor would it seem to matter much whether it be
through wantonness or palpable inefficiency amounting to a
breach of implied undertaking.^ A servant betraying his mas-
ter's confidence may, it seems, be discharged.^ But the relation
continues though the master obtains a commitment of the ser-
vant to prison.*^ So, where absence is warrantable, or where
the absence is temporary for no bad purpose, and the master
has suffered no serious loss thereby.' Where serious danger,
though perhaps not actual damage, is occasioned to the mas-
ter's business by his servant's conduct, he is justified in dis-
missing the servant on that account ; as if an apothecary's
W. & S. 266. Slandering the master Co., 3 Ad. & El. 171 ; Amor v. Fearon,
to otliers, and spitefully suing him on 9 Ad. & El. 548.
groundless charges, is good cause for ■* See Callo v. Brouncker, 4 Car. &
dismissal. Brink v. Fay, 7 Daly, 562. P. 518, cited Smith, Mast. & Serv. 73 ;
And see McCormick v. Demary, 10 Heber v. Flax Man. Co., 1.3 R. I. 30.3.
Neb. 515. 5 Beeston v. Collyer, 2 Car. & P.
1 Pearce r. Foster, 17 Q. B. D. 536. 609.
2 Turner v. Robinson, 5 B. & Ad. 789. ^ Rex v. Barton, 2 M. & S. .329.
3 See Lacy v. Osbaldiston, 8 Car. & ^ Filleul v. Armstrong, 7 Ad. & El.
P. 80 ; Ridgway v. Hungerf ord Market 557.
706
CHAP. I.] NATURE OF THE RELATION. § 464
assistant should frequently employ an ignorant shop-boy to make
up prescriptions to save himself work.^ Herein the servant's
negligence amounts to a breach of his implied undertaking.
Subject to what has already been said concerning contracts
in restraint of trade, we may add that a servant may lawfully
be discharged on the ground that he is engaging in another
business in competition with and calculated seriously to injure
that of his employer. Here the cause of discharge would be
serious detriment to the master's interests, if not habitual
negligence.^
§463. The Same Subject. — If good ground of discharge
exists and is known to the master at the time of dismissal, it
is sufficient to justify the discharge, although he chose to allege
some other cause.^ But it would seem that if the master, at the
time he discharged the servant did not know of any act of mis-
conduct on the servant's part which would justify dismissal,
the mere existence of such misconduct would not afterwards
avail in his own justification.^ Discharge for a certain cause
should be reasonably soon after knowledge of the cause in order
to avail the employer ; ^ and indeed the employer's own responsi-
bility to third parties requires this. But a waiver of the right
to discharge a servant may be presumed from circumstances.^
§ 464. Termination of Service by Mutual Consent, &c. ; Special
Terms. — A contract of service, like all other contracts, may be
1 Wise V. Wilson, 1 Car & K. 662. * Cussons v. Skinner, 11 M. & W.
Though here the relation was admitted 161. But see Spotswood v. Barrow,
to be not strictly that of servant or ap- 5 Exch. 110.
prentice. See, further, Harover r. Cor- & See Williams v. Jeter, 64 Ga. 737 ;
nelius, 5 C. B. n. s. 236; Stanton v. Bast v. Byrne, 51 Wis. 531.
Bell, 2 Hawks, 145. ^ Thus, where a servant was to re-
2 Adams Express Co. v. Trego, 35 ceive payment at a specified rate if
Md. 47 ; supra, § 460. It is insufficient he continued temperate and faithful in
excuse to the servant that tlie compel- his employer's service, tlie fact that he
ing business was conducted by him was occasionally intemperate and dis-
without neglecting his master's con- continued service for short periods
cerns. Dieringer v. Meyer, 42 Wis. would not prevent his recovering the
311. stipulated rate for the time actually
3 Smith, Mast. & Serv. 76, and cases spent in such service, if he was received
cited; Baillie v. Kell, 4 Bing, N. C. back into it, and continued therein with-
638; Ridgway ;■. Hungerford Market out any new arrangement made or any
Co., 3 Ad. & EI. 171 ; Mercery. Whall, intimation that the old one was termi-
5 Q. B. 447. nated. Prentiss v. Ledyard, 28 Wis. 131.
707
§ 465 THE DOMESTIC RELATIONS. [PART VI.
dissolved by mutual consent, or by the death of either party, or
by the completion of the term of service.^ One who miscon-
ducts himself and is reprimanded for it and then leaves offended,
has no cause of action.^ The parties, furthermore, may make
special terms, as, for instance, in fixing a certain period or in
requiring a certain previous notice to terminate; and such
terms, even if more favorable to one than the other, must be
mutually respected.^ Thus a contract for a fixed period some-
times provides that the employee may be discharged sooner if
the employer be dissatisfied * Any such one-sided discretion must
be fairly exercised, however ; for such an agreement does not jus-
tify arbitrary dismissal nor a severance of the relation for differ-
ent reasons where the proviso is made a convenient pretext.^
§ 465. Servant's Occupation of Master's Premises ; No Ten-
ancy Presumed. — A servant who occupies premises belonging
to his master is not presumed to occupy as tenant, but by vir-
tue of the relation of service ; and, if such be the case, he
acquires no estate therein by the performance of his duties,
even though he be also allowed to use the premises for carry-
ing on an independent business of his own.^ If properly dis-
missed from the service, therefore, he has no right to remain
until ejected upon notice as a tenant ; but the termination of his
service is likewise the termination of his right to the premises.
1 See Thomas v. Williams, 1 Ad. & Basse v. Allen, 43 Tex. 481. Nor does
EI. 685. Contract held to have been one abandon the service lawfully where
dissolved by mutual consent in Stock- his drunkenness or other misbehavior
ley V. Goodwin, 78 III. 127. Accepting provoked his master's just resent-
one's discharge without remonstrance meat. Morgan v. Shelton, 28 La.
does not conclude this point. Dana t). Ann. 822.
Short, 81 Id. 468. As to the effect of One who contracts to labor for a
employing individtially as master and limited period cannot be compelled to
then entering into a partnership, see stay longer against his consent in order
75 Ga. 98 ; 143 Mass. 473. to make up tor lost time, or for his em-
2 Physioc )•. Shea, 75 Ga. 466. ployer's personal convenience. Bast v.
3 Green v. Wright, 1 C. P. D. 501 ; Byrne, 51 Wis. 531 ; Wyngcrt v. Nor-
Walsh V. Walley, L. R. 9 Q. B. 367 ; ton, 4 Mich. 286.
Preston v. American Linen Co., 119 ^ Hotchkiss v. Gretna Co., 36 La.
Mass. 400; Naylor v. Fall River Co., Ann. 517.
118 Mass. 317. A servant claiming 5 lb. Winship v. Base Ball Asso-
the benefit of such previous notice can ciation, 78 Me. 571.
set up no implied immunity from dis- ^ White v. Bayley, 10 C. B. n. s.
charge witliout notice for misconduct. 227 ; Smith, Mast. & Serv. 40, 41.
708
CHAP. II.] MUTUAL OBLIGATIONS. § 467
CHAPTER II.
MUTUAL OBLIGATIONS OF MASTER AND SERVANT.
§ 466. Obligations to be considered as to Master ; as to Ser-
vant. — Some obligations arising from the relation of service
rest more especially upon the master ; others again more es-
pecially upon the servant.
§ 4(37. Master's Obligation as to Education, Discipline, &c. —
First, as to the master. A moral obligation resting upon every
master whose connection with his servant is a very close one,
the latter being manifestly on an inferior footing, is to exert a
good influence, to regard the servant's mental and spiritual
well-being. Positive law enjoins the same duty in a variety of
instances with regard to apprentices and workmen under age,
by requiring their masters to teach them to read, write, and
cipher, to see that they attend public worship, and in general,
to take due care of their morals.^
From such view of a master's obligation comes, doubtless,
a rule which some deduce from the old books, that a master
has the common-law right to chastise his servant or apprentice
moderately ; but, on principle, the limitation must be to those
servants or apprentices under age, who, by positive law, are
committed somewhat as children to their master's keeping.^
The right is denied as to ordinary servants in this country.^
" The only civil remedies," says an English writer, " a master
has for idleness, disobedience, or other dereliction of duty, or
breach of contract on the part of a servant, are either to bring
an action against him, or, as Puffeudorf expresses it, ' to expel
1 See Stats. N. Y., Conn., &c., in 2 vant (N) ; 1 Bl. Com. 428; 2 Kent,
Kent, Com. 262, and n. Com. 260.
2 See Bac. Abr. tit. Master and Ser- ^ Commonwealth v. Baird, 1 Ashm.
267 ; Cooper i'. State, 8 Baxt. 324.
709
§ 469 THE DOMESTIC RELATIONS, [PART VI.
the lazy drone from his family, and leave him to his own
beggarly condition.' " ^
§ 468. Master's Obligation as to furnishing Necessaries. — As
to necessaries, Kent pronounces the better opinion to be that
the master is not bound to provide even a menial servant with
medical attendance and medicines during sickness.^ And so
far as special medical attendance furnished an adult servant
capable of taking care of himself is concerned, the rule is so
settled ; ^ though Lord Kenyon, and perhaps Lord Eldon, once
thought otherwise.* Yet a master is legally bound to provide
medicines for his apprentice.^ One's conduct to the helpless
and suffering should not be inhuman. And reference to the
authorities will show that, as to domestic servants courts are
not indisposed to infer authority from the master's own con-
duct.^ The duty of a master to provide food and other neces-
saries rests upon contract, express or implied ; and it was the
English doctrine, as expressed in 1802, that neglect to furnish
sufficient food, clothing, or lodging to any infant of tender
years unable to provide for and take care of himself, whether
child, apprentice, or servant, so as thereby to injure his health,
was an indictable offence ; which principle a later English
statute has extended even further, wherever there is the legal
liability to provide necessaries.'^ It may be presumed that, in
most cases, the reasonable value of necessaries furnished a ser-
vant might be set off against the servant's wages, where the
master was not legally bound to supply them.
§ 469. Master's Obligation as to finding Work. — How far
the master is bound to find work for his servant has sometimes
been considered in the courts. The legal principle is that of
1 Smitli, Mast. & Serv. 69; Puff. * Scarman v. Castell, 1 Esp. 270;
Law Nature, b. 6, ch. 3, § 4. A master Simmons v. Wilmott, 3 Esp. 93.
has no right to use " moderate force " ^ Feg. i'. Smith, 8 Car. & P. 153.
to compel a female servant of eighteen ^ Cooper i'. Phillips, 4 Car. &, P.
to obey his reasonable commands. 581 ; Sellen v. Norman, 4 Car. & P. 80 ;
Tinkle v. Dunivant, 16 Lea, 603. Friend's Case, Russ. & Ry. C. C. 22.
- 2 Kent, Com. 261. ^ 14 & 15 Vict. c. 11. As to indict-
3 Smith, Mast. & Serv. 118-120; ing the husband rather than the wife,
Wennall v. Adney, 3 B. & P. 247 ; see Rex v. Saunders, 7 Car. & P. 277.
Sweetwater Co. v. Glover, 29 Ga. 399; See Smith, Mast. & Serv. 117.
Clark V. Waterman, 7 Vt. 76.
710
CHAP. II,] MUTUAL OBLIGATIONS. § 471
substantial justice. A master may hire a servant for a certain
period, and, paying the wages or salary agreed upon, may keep
him in sufficient work or not ; but he cannot deprive the ser-
vant of his full compensation through a discontinuance of his
own business, or from other like cause. ^ But where the con-
tract of hiring merely contains an undertaking to pay certain
stipulated wages in proportion to the work done, there is no
implied obligation on the master's part to find work ; though
the disposition is to construe contracts of doubtful significance
into an agreement on the master's part to enable the servant to
earn regular and reasonable wages.^
§ 470. Master's Obligation to indemnify Servant. — It is the
duty of every master to indemnify his servant from the con-
sequences of lawful acts, done in pursuance of orders which
the servant was bound to obey. And as to an act not malum
in se, but which might have been either lawful or unlawful, and
which the servant was induced by the conduct of his master
to believe to be lawful, the rule of indemnity likewise applies.^
But it would appear that for an act malum in se, or which the
servant knew to be unlawful, although done by him in obedi-
ence to hk master's orders, the master is not bound to indemnify
his servant ; for the servant should have refused obedience.*
§ 471. Master's Obligation to receive into Service the Person
Engaged ; Remedies for Breach. — It is likewise the duty of the
master to receive into his service a person already engaged ;
and if he fails to do so, he is liable in damages. And yet here
a legally binding contract would have to be shown by the plain-
tiff.^ Nor will courts of chancery grant injunction to compel
specific performance, except perhaps in cases where the relation
exists only by remote analogy and the connection between
master and servant is not close; the remedy must otherwise
1 Aspdin V. Austin, 5 Q. B. 671 ; Rawlincrs v. Bell, 1 C. B. 951 ; Cro.
Elderton v. Emmens, 6 C. B. 160; Jac. 468 ; Story, Agency, §339 ; Smith,
Smith, Mast. & Serv. 49, 50. Mast. & Serv. 121.
2 See Pilkington v. Scott, 15 M. & * Smith, ib. See post, c. 3, as to ser-
W. 657 ; Hartley v. Cummings, 5 C. B. vant's own liability in this respect.
247 : Smith, Mast. & Serv. 48, 50 ; 5 Bracegirdle v. Heald, 1 B. & Aid.
Sykes v. Dixon, 9 Ad. & El. 693. 722; Blogg v. Kent, 6 Bing. 614.
3 Collins V. Evans, 5 Q. B. 830;
711
§ 472 THE DOMESTIC liELATlONS. [PART VI.
be left to the common-law courts.^ "Consider," said Lord
Chancellor Truro, " what the effect would be ; how is it possible
for an employer or an agent to go on in the intimate connection
which such a contract is calculated to create ?"2 So, too, has
injunction been lately refused to enforce a contract of appren-
ticeship, as a proceeding without precedent.^ Where the con-
tract was for future employment, and the employer repudiates
without justification when the time comes, thereby refusing
to receive the other party into his service, the remedy under
modern practice is, not an action for wages, but to recover
damages as for breach of the contract.^
§ 472. Obligation to pay Wages ; Servant's Right to recover.
— The servant's right to compensation follows from the fact
that the parties have fairly entered into the relation of em-
ployer and employed with the reciprocal rights and duties of
that relation;^ and it should be presumed, where no rpiasi
parental relation existed, that such labor was to be in some
way remunerated, and this most naturally by money wages.^
The question whether the person who sues for his wages did
his duty, or, if discharged, was discharged without fault, is for
the jury to decide upon all the facts. '^
Where the servant has been wrongfully discharged from his
master's employ, two remedies, both at common law, are open
to him : one, to treat the contract as a continuing one, and sue
in damages for breach thereof ; the other to consider it as re-
scinded, and sue his master on a quantum meruit for the services
he has actually rendered.*^ Formerly it was thought that he
had a third remedy, namely, to wait till the termination of the
period of service, and then sue for his whole wages in assumpsit,
relying on the doctrine of constructive service ; ^ but according
1 Stocker v. Brockelbank, 20 L. J. ^ Moreland v. Davidson, 71 Penn.
Ch. N. 8. 408. See Willis v. Cliilde, 13 St. 371 ; Hay v. Walker, 65 Mo. 17 ;
Beav. 117. Jordan v. Foxwortli, 48 Miss. 607.
2 Stoeker v. Brockelbank, ih. "^ Echols v. Fleming, 58 Ga. 156.
8 Webb y. England, 20 Bi-av. 44. « Lilley v. Elwin, 11 Q. B. 755;
* Howard i^. Daly, 61 N. Y. 362. The Planche v. Colbnrn, 8 Bing. 14; Col-
person hired should seek out a new ser- burn r. Woodwortli, 31 Barb 381.
vice, so as to reduce the damages. Ih. ^ Gandall v. Pontigny, 1 Stark.
5 McDonald?;. Boeing, 43 Mich. 394. 157; Collins r. Price, 5 Bing. 132, 2
See §§ 458-404. Smith, Lead. Cas. 17, n. to Cutter v.
712
CHAP. II.] MUTUAL OBLIGATIONS. § 472
to the best authorities, this course cannot now be adopted ; for
the discharged servant is bound to make the best use of his
time and seek out new employment.^ The first is the remedy
usually adopted; and here the servant can recover wages for
the whole term, less what he had an opportunity to make by
like service after his dismissal,^ and it is damages rather than
strict wages that he recovers. To sustain this action, the ser-
vant must have been ready and willing to serve ; but he need
not offer to do so. The amount of damages which he should
recover must depend upon the nature of the contract and the
wages agreed upon ; the jury may exercise a large discretion ;
and, where no specific wages have been agreed upon, the measure
is fixed by considering what is the usual rate of wages for the
employment contracted for, and what time would be lost before
another situation could be obtained.^ The second form of
action treats the contract of service and hiring as rescinded ;
and the ground on which the servant sues is one applicable
to contracts in general ; namely, that when one party to a
contract has absolutely refused to perform something essential
on his side of the contract, the other party is at liberty to
terminate it, and sue for services rendered under a quantum
tneruit^ Where this remedy is elected the servant can only
recover wages for the period during which he actually served.^
Powell ; James v. Allen Co., 44 Ohio 44 ; Given v. Charron, 15 Md. 502 ;
St. 226. Nations v. Cudd, 22 Tex. 550 ; Sher-
1 Smith, Mast. & Serv. 94, n., and man v. Champlain Trans Co., 31 Vt.
cases cited , Fewings y. Tisdal, 1 Exch. 162. In case of unwarrantable dis-
295; Beckham y. Drake, 2 Ho. Lords cliarge, the servant's damages are /))vnia
Cas. 606 ; Sherman v. Cliamplain facie the amount of wages for the full
Trans. Co., 31 Vt. 162 ; Goodman v. term. De Leon v. Echeverria, 45
Pocock, 15 Q. B. 576; Chamberlin v. N. Y. Super. 610. But if employed
Morgan, 68 Penn. St. 168; Perry v. meantime in a new place, this reduces
Simpson, &c. Co., 37 Conn. 520; How- the damages, so far as may be reason-
ard V. Daly, 61 N Y. .362. able. Ansley v. Jordan, 61 Ga. 482.
2 Especially if he waits till the full See further, as to proof, Howard v.
time expires. Gardenhire v. Smith, 39 Chamberlin, 64 Ga. 684 ; Bast v. Byrne,
Ark. 280 See rule as stated in 68 Ga. 51 Wis. 531; Richardson v. McGol-
169. where one was allowed to sue at drick, 4.3 Mich. 476.
the end of each month of the unex- * 2 Smith, Lead. Cas. 17, n. to Cut-
pired term. ter v. Powell, and authorities cited ;
3 See Beckham v. Drake, 2 Ho. Smith, Mast. & Serv. 99. See Good-
Lords Cas. 606; Fewings v. Tisdal, 1 man v. Pocock, 15 Q. B. 576.
Exch. 295; Smith y. Thompson, 8 C. B. ^ Fewings v. Tisdal, 1 Exch. 295;
713
473
THE DOMESTIC KELATIONS.
[PAET VI.
But while the servant may elect either of the two reme-
dies, he cannot pursue them together; and if he sues on
both counts in his action he must take the verdict upon one
only.i
§ 473. The Same Subject ; Rules for Payment of Wages ; Off-
sets ; Preference ; Apportionment, &c. — Wages are due in gen-
eral for work performed ; and although the amount of wages
was left to the master, a reasonable remuneration must be
given.2 Unless the servant was absolutely worthless, he should
have at least what his services were worth, even though negli-
gent and unskilful.^ The rule is, that a servant discharged for
good reason is entitled to wages up to the time of discharge,
subject to rules of apportionment to be presently considered,
and the special terms of a contract; and to no more. But the
mere existence of a valid contract of hiring and service does
not necessarily imply a contract to pay wages ; for board, lodg-
ing, clothes, or the opportunity of learning business, might be a
sufficient compensation ; particularly in case of the young.* So
Weed V Burt, 78 N. Y. 101 ; Boyle v.
Parker, 46 Vt 34.3. For services ren-
dered under a special contract which
has been wrongfully terminated, or its
full performance prevented by the
master's fault, the servant may recover
as upon an implied qnantum meruit. Ral-
ston V. Kohl, 30 Oliio St. 92 ; Dobbins
V Higgins. 78 111 440; Barr v. Van
Duyn, 45 Iowa, 228, But of. Provost
V. Carlin, 28 La. Ann. 595. The father
may be entitled to sue where putting
his young son to work. Harris v.
Separks, 71 N. C. 372; supra. Part III.
c. 3. Presumptions that wages are due
are not favored where a long time
elapses after the relation has termi-
nated before any demand is made. 99
Penn. St. 552.
Where a servant is unjustly dis-
charged, while the master may reduce
the damage by showing that the ser-
vant obtained, or could obtain otlier
employment, he cannot defeat his
right of action. Wilkinson v. Black,
80 Ala. 329 ; 7 Col. 562.
A contract to serve a year on a
714
monthly salary does not oblige the em-
ployee to prove performance for a
year or prevention from performance,
as a condition precedent to recovering
anything. Matthews v. Jenkins, 80
Va. 463. Nor does refusal to continue
employment at reduced wages preju-
dice the discharged servant's suit. 77
Ala. 387.
1 Goodman v. Pocock, 15 Q. B.
576 ; Colburn v. Woodworth, 31 Barb.
381.
2 Bryant v. Flight, 5 M & W. 114;
Peacock i'. Peacock, 2 Camp. 45 ; Law-
son V. Perry, Wright, 242. But see
Taylor v. Brewer, 1 M. & S. 290. See
Goodman v. Pocock, 15 Q. B. 576 ;
Costigan v. Mohawk R. R. Co , 2
Denio, 609. Tlie amount fixed by the
master, where it is left to him, is con-
clusive in the absence of fraud or bad
faith. Butler v. Winona Mill Co., 28
Minn 205.
3 McCormick v. Ketchum, 48 Wis.
643.
4 Smith, Mast. & Serv. 100, n. ; Rex
V. Shinfield, 14 East, 541 ; Davies v.
CHAP. II.] MUTUAL OBLIGATIONS. § 473
any employer has a right to judge for himself how he will carry
on his own business ; and workmen, having knowledge of the
circumstances, must judge for themselves whether they will
enter his service.^
The master is not bound to pay increased wages for voluntary
increased labor, unless he has contracted to do so.'*^ Special
terms must be respected, and one who has received for his ser-
vices all that was hona fide agreed upon, can recover no more,
although the services may have been worth more.^ Nor is there
any new implied contract to pay wages on simple and lawful
dissolution of a special contract.* The action for wages should,
of course, be brought, not against a third party, but against the
person by or for whom the plaintiff was hired ; and to ascertain
this is not always easy.^
The . master cannot set off, against the servant's claim for
wages, money paid by him to his own medical attendant, unless
the servant so stipulated.^ Nor a gratuity or present to the
servant outside the contract of employment." Nor, in an action
for an infant's wages, money advanced for articles not necessa-
ries ; or coach fare for her mother.^ Nor, as it is held, can he
set off, against wages, a claim for articles lost or broken by care-
lessness ; he should sue in a cross-action.^ But, in an action of
compensation for services, the employer may show, by way of
recoupment of damages, loss sustained through the breach of the
Davies, 9 Car. & P. 87 ; Maltby v. Har- master's employment many years, an
wood, 12 Barb. 473 ; Meredith v. Craw- account being kept up without full set-
ford, 34 Ind. 399 ; Ansley i-. Jordan, 61 tlement, the statute of limitations is not
Ga. 482. construed to apply. Smith y. Velie, 60
1 Hayden v. Smithville, &c. Co., 29 N. Y. 106.
Conn. 548. 6 Sellen v. Norman, 4 Car. & P. 80.
2 Bell V. Drummond, Peake, 45. "< Neal v. Gilmore, 79 Penn. St. 421.
Working voluntarily during unseason- Perquisites may have entered into the
able hours affords no legal right to ex- contract of hiring by way of lessening
tra compensation beyond that agreed the wages. Bennett v. Stacy, 48 Vt.
upon. 56 Wis. 671. 163.
3 Bradbury v. Helms, 92 111. 35. « Hedgely v. Holt, 4 Car. & P. 104.
4 Lamburn v. Cruden, 2 Man. & Gr. ^ Le Loir v. Bristow, 4 Camp. 134.
253. It is no bar to the servant's suit that
s See Smith, Mast. & Serv. 104, 105, he failed to account for small sums of
and cases cited; Perry v. Bailey, 12 money that came to his hands; there
Kan. 539 ; Compton v. Payne, 69 111. being doubt of his criminality. Turner
354. Where a servant continues in his v. Kouwenhoven, 100 N. Y. 115.
715
§ 473 THE DOMESTIC RELATIONS. [PART VI.
person employed/ and in modern practice this right to recoup
damages is liberally applied.
Modern bankruptcy acts frequently provide that servants or
clerks shall be preferred to general creditors in the distribution
of assets.^ It would appear that the bankruptcy of the master
does not, per se, dissolve a contract of hiring ; yet the assignees
cannot let out personal services for him.^
The death of the master discharges his servant ; and, accord-
ing to the strict rule of law, it would appear that where the
contract is entire for a year's service, and neither custom nor
statute intervenes, the death of the master in the middle of the
year utterly deprives the servant of compensation for the broken
period.* A contract of apprenticeship, in so far as it was a
personal contract, is also terminated by the master's death.^
But the rule of apportionment is now so much favored that it
is apprehended to be unlikely that a construction so inequitable
would in this day be permitted to apply to contracts which left
the intention of the parties in doubt on this point. And custom
is applicable, in the case of domestic servants at least, so as to
give them wages for the whole time served, though they do not
continue in service for a year.^ The executors or administrators
of the master are the persons to whom a servant must look for
such arrears ; not an intermeddler with the estate, nor kindredJ
In some States wages of domestic servants and laborers are
made preferred debts ; independently of statute, it is not prob-
able that they are so entitled.^ Legacies, if actually bequeathed
to servants, are sometimes held to extinguish claims against the
master's estate for wages.^ On legal principle, moreover, when
1 Still V. Hall, 20 Wend. 51 ; Pixler * 1 Wms.Ex'rs, 644; Smith, Mast. &
V. Nichols, 8 Iowa, 106; Hunter ;; Lit- Serv. 111. But see Jackson v. Bridge,
terer, 1 Baxt. 168; Blodfiett v. Berlin 12 Mod. 650.
Mills, 52 N. H. 215; English v. Wilson, ^ Bac. Abr. tit. Master and Servant
34 Ala. -201. See, as to an infant, (G). But statutes are not always to
Meeker v. Hurd, 31 Vt. 639. And see this effect. Phoebe v. Jay, 1 Bre. 268.
Stoddard t'. Tread well, 26 Cal. 294. « Cutter v. Powell, 6 T. R. 320;
2 See 12 & 13 Vict. c. 106; United Smith, Mast. & Serv. 112.
States bankruptcy act, March 2, 1867. "^ 2 Wms. Ex'rs, 822, n., 3d ed. ;
§ 27 (since repealed). Welchman v. Sturgis, 13 Q. B. 522.
■■5 See Thomas v. Williams, 1 Ad. 8 2 Wm. Ex'rs, ib. But see 2 Bl.
& El. 685; Williams v. Chambers, 10 Com. 511.
Q. B. 337. ^ See Booth v. Dean, 1 Myl. & K.
716
CHAP. II.] MUTUAL OBLIGATIONS. § 474
a servant dies in the middle of the term of his engagement, his
representatives can, it seems, cLaim nothing; but here again
might custom apply the rule of apportionment,^ as local codes
sometimes do.^ So, where the servant leaves wrongfully, or is
dismissed by his master for rightful cause, the periodical pay-
day not having come round and the contract an entire one, he
can claim nothing pro rata.^ Yet, with regard to the common
case of a hired servant, though the hiring be in a general way,
the understanding is common that the servant shall be entitled
to his wages for the time he serves.* Unless some such rule
could be enforced, the stronger party would be constantly
tempted to make dismissal a pretext for refusing to pay to
the weaker the little pittance which was justly due. And,
again, there are circumstances from which a waiver of for-
feiture of the servant's accrued wages will be presumed, even
though the service was terminated by reason of the servant's
misconduct.^
§ 474. The Same Subject ; Change of Contract ; Excuse by-
Act of God ; Justifiable Termination, &c. — The original contract
of hiring may be changed without any new express contract of
the parties ; this change being inferred from the facts, and the
master's liability for wages fixed accordingly. Thus, one en-
gaged to work on half time and receive half wages may become
560 ; Smith, Mast. & Serv. .343 et seq. 34 Ala. 155 ; Marsh v. Rulesson, 1
But wlien work is rendered in con- Wend. 514 ; Beach v. MuUin, 5 Vroom,
sideration of a future legacy, and the 343; 29 Minn. 146, 470.
legacy is not left, the servant may sue * See remarks in Cutter v. Powell,
the estate on a quantum meruit. See supra; Smith, Mast. & Serv. 116. And
Nimmo v. Walker, 14 La. Ann. 581; see Kessee r. Mayfiekl, 14 La. Ann. 90;
Sword y. Keith, 31 Mich. 247 ; Shake- Gates v. Davenport, 29 Barb. 160;
speare w. Markham, 17 N. Y. Supr. 311, Massey t". Taylor, 5 Cold. 447; Costi-
322. Or for breach of the agreement, gan c. Mohawk R. R. Co., 2 Denio,
Lee V. Carter, 52 Ind. 342. And see 609 ; Byerlee v. Mendel, 39 Iowa, 382.
supra, Part III. c. 5. ^ Patnote v. Sanders, 41 Vt. 66 ;
1 Smith, Mast. & Serv. 115 ; Cutter Prentiss v. Ledyard, 28 Wis. 131. The
V. Powell, 6 T. R. .320. wages of one employed by the day,
'^ Dryer y. Lewis, 57 Ala. 551. week, or month, become due at the
3 2 Smith, Lead. Cas. 17, n. to Cutter close of each day, week, or month,
V. Powell ; Spain v. Arnott, 2 Stark, where there is no contrary understand-
2.36; Turner v. Robinson, 6 Car. & P. ing. Do Lanpe r. Sullivan, 7 Col. 182.
15, Ridgway v. Hungerford Market As to one's right to an "expert's" sal-
Co., 3 Ad. & El. 171 ; Lane v. Phillips, 0 ary, see 63 Wis. 132.
Jones (Law), 455; Whitley v. Murray,
717
§ 474 THE DOMESTIC RELATIONS. [PAET VI.
actually employed on full time, and so may gain the right to
recover full wages.^ Hence, too, wages may be increased or
diminished, upon a new understanding, while the service goes
on ; or one who comes into a family on the footing of a member
without pay at all may subsequently become entitled to wages.^
And a change of employers having occurred by reason of some
change of business, the new employers may render themselves
liable for the wages of the person employed ; while, on the
other hand, the original employer continues liable to the person
employed, if the latter receives neither actual nor constructive
notice that the change has occurred.^
Where the performance of a condition is prevented by the
act of God, it is excused.* And where one performs services
under a contract, and is, before the expiration of the full period,
disabled by sickness or inevitable accident from completing his
contract, he is entitled to recover as upon a quanUim meruit for
the period of such disability.^ Yet it seems that where illness
or other causes renders one permanently incompetent to per-
form his contract, this is a sufficient cause of dismissal, if the
employer choose so to regard it.*^ And if one engages in ser-
vice, concealing a disability which must have interfered with
due performance, he should bear the ill consequences.'^
Where the agreement provides that either party may termi-
nate it at any time, the servant may quit at any time on his
1 Edrington v. Leach, 34 Tex. 285. down his wages, whereupon the ser-
2 Generally, where one is hired for vant leaves at once, such a contract of
a fixed compensation for a specified two weeks' notice does not avail the
time and continues afterwards to serve, master. 54 Conn. 64.
the presumption is that compensation ^ Perry ?;. Simpson, &c. Co., 37 Conn.
shall continue at the same rate. But 408.
the actual agreement of service con- * Cruise, Dig. Condition, 41, 43.
trols such questions. Smith v Velie, ^ Wolfe v. Howes, 29 N. Y. 197 ;
60 N. Y. 106. Notification by the Cuckson v. Stones, 1 El. & El. 248;
master that he will hereafter pay dif- Fenton v. Clark, 11 Vt. 557; Seaver
ferently may establish a new contract, v. Morse, 20 Vt. 620.
if the servant goes on with his work. "^ See Harmer r. Cornelius, 5 C. B.
Spicer v. Earl, 41 Mich. 191. Some- n. s. 236; Cuckson r. Stones, supra;
times a contract of employment re- Seaver v. Morse, supra ; 36 La. Ann.
quires the servant to give two weeks' 201.
or other stated notice of his desire to '' Jennings v. Lyons, 89 Wis. 553.
quit or else forfeit wages. .13 R. I. As where one's wife engaged to work
303. But if the master notifies the for a year wliile pregnant, lb.
servant that he shall next day cut
718
CHAP. II.] MUTUAL OBLIGATIONS. § 475
own motion, and recover on the contract for services rendered.^
But if the servant agrees to work for a given time, with the
privilege of leaving if dissatisfied, he cannot recover if he leaves
without alleging dissatisfaction, but merely to attend to other
business.^ But if employed for a fixed period and discharged
without cause, the servant should be compensated for the full
unexpired terra, under the reservations already noted.^
§ 475. The Same Subject ; Termination by Mutual Consent ;
Special Conditions, &c. — If the contract, though for a certain
period, be terminated by mutual consent, recovery may be had
on a quantum meruit for the services actually performed, though
for nothing more, unless expressly agreed to.^ And work ac-
cepted by the employer, though not done according to the terms
of the contract, must be paid for at its fair value, not exceeding
the stipulated price.^ So a person employed on a particular
service by the month or year, may have a right to compensa-
tion for services rendered on request, out of the range of such
employment, even without express contract as to the terms of
payment.^ Conditions precedent, such as submission of work
to inspectors, performance according to the estimate of third
parties, special stipulations and the like, may enter into such
contracts.'' But all such stipulations call for rational interpre-
tation ; and even if the master reserves the right to discharge or
disapprove w^ork at discretion, a captious exercise of this right
is not to be inferred allowable.^
Where the agreement was that the value of labor and services
should be applied in payment of land for the purchase of which
1 Evans v. Bennett, 7 Wis. 404. 6 Cincinnati, &c. R. R. Co. v. Clark-
2 Monell V. Burns, 4 Denio, 121. son, 7 Ind. 505.
3 Chiles c. Nail Mill Co., 68 111. ^ See Baason i'. Baehr, 7 Wis. 516;
12.3. Butler v. Tucker, 24 Wend. 447.
* Given v. Charron, 15 Md. 502; s gioan r. Hayden, 110 Mass. 141;
Patnote v. Sanders, 41 Vt. 66. As Miller r. Cuddy, 4.3 Mich. 273; Alex-
where an employer acts and speaks so ander v. Americus, 61 Ga. 36. For-
as to warrant the servant in supposing feiture of wages in such contracts is
he has his consent to leave. Boyle v. not to be favored ; but such conditions
Parker, 46 Vt. 343. plainl3' expressed (as, for instance, un-
^ English V. Wilson, -34 Ala. 201 ; less the servant gives notice) are up-
Dermott v. Jones, 23 How. (U. S.) held. Walsh v. Walley, L. R. 9 Q. B.
220. 367 ; Preston v. American Linen Co.,
119 Mass. 400.
719
§ 476 THE DOMESTIC RELATIONS. [PAET VI.
no written contract had been made out, it was held that an ac-
tion for the value of the labor and services would not lie.^ But
if I sell land to another, to be paid for in work which he pres-
ently performs, and I then refuse to convey, he may recover pay
for his work .2 So it was held, where the defendant had con-
tracted to sell the plaintiff a house, which the plaintiff, with the
defendant's knowledge and without objection from him, put in
repair, and also performed labor in part-payment ; and where
afterwards he was prevented from completing his contract by
the fault of the defendant ; that he might recover for both the
labor performed and the value of the improvements.^
§ 476. Master's Representations as to Servant's Character ;
Guaranty as to Character, &c. — Mr. Starkie observes that the
giving a character of a servant is one of the most ordinary com-
munications which a member of society is called on to make,
but is a duty of great importance to the interests of the public ;
and in respect of that duty a party offends grievously against
the interests of the community in giving a good character where
it is not deserved, or against justice and humanity in either in-
juriously refusing to give a character, or in designedly misrep-
resenting one to the detriment of the individual.^ But in the
absence of any specific agreement to that effect there is no legal
obligation binding a person, who has retained another as a ser-
vant, to give that person any character at all on dismissal ; and
no action will lie against him for refusing to do so.^ And the
decisions on this subject fully establish the principle that rep-
resentations of a servant's character, oral or written, are on the
footing of privileged communications ; and that wilful misrep-
resentation must appear on the master's part to render him
liable ; not merely wrong and unfair statements made in good
faith and without malicious intent.^
But a guaranty for the honesty of a servant is sometimes
1 Congdon v. Perry, 13 Gray, 3. Fountain r. Boodle, 3 Q B. 12; Hodg-
2 Leach v. Rogers," 28 Ga. 2*47. son v. Scarlett, 1 B. & Aid. 240 ; 2
8 Wright V. Haskell, 45 Me. 489. Starkie, Slander, 58. And see, as to
* 1 Starkie, Slander, 293. compelling inspection of letter written
•» Smith, Mast. & Serv. 222 ; Carrol concerning a discharged servant, Hill v.
V. Bird, 3 Esp. 201. Campbell, L. R. 10 C. P. 222.
6 Smith, ib. 223-250 and cases cited;
720
CHAP. II.] MUTUAL OBLIGATIONS. § 477
given for the master's protection ; just as an official will furnish
his bondsmen, or as some companies guarantee the fidelity of
clerks and trustees. In such cases, since the rights of a guar-
anty are carefully watched, the master must on his part exer-
cise due caution. Thus, on a continuing guaranty for the
honesty of a servant, if the master discovers that the servant
has been guilty of dishonesty in the course of the service, and
instead of dismissing the servant he chooses to continue him in
his employ, without the knowledge and consent of the surety,
express or implied, he cannot afterwards have recourse to the
surety to make good any loss which may arise from the dis-
honesty of the servant during the subsequent service.^
§ 477. Obligations resting specially upon the Servant ; Per-
formance of his Engagement. — Now, as to the servant. Of the
mutual liabilities of master and servant, some are to be dis-
cussed with more especial reference to the latter than the for-
mer. Thus the servant, once engaged by a valid contract to
enter his employer's service, cannot refuse or neglect to do so
without becoming liable in damages ; though whether the mas-
ter may care to pursue his remedy is another matter.^ The
same may be said of one who without sufficient cause leaves
his employment before the legal termination of the period
agreed upon.^ That the service is unpleasant or the labor
severe would not alone justify his departure.* But if the mas-
ter's unprovoked assault causes the servant to fear injury, the
latter may properly leave.^
While performing service under his contract the servant is
bound to regard the interests of his master. He cannot, it
would appear, solicit his master's customers into his own busi-
ness, so long as his engagement lasts, without rendering himself
liable to action ; but it is held that he can do so when the ser-
vice is at an end, and he sets up for himself.^ He must account
1 Phillips V. Foxall, L. R. 7 Q. B. < Angle v. Hanna, 22 111. 429.
666. As to the master's liabilities for ^ Bishop i'. Ranney, 59 Vt. 316.
the servant's injuries, see infrn, c. 4. 6 Nichol v. Martyn, 2 Esp. 732. Yet
2 See Richards v. Hayward, 2 Man. we presume that this action would lie,
& Gr. 574; Smith, Mast. & Serv. 64. if the servant had availed himself, to
3 Bird V. Randall, -S Burr. 1345; his master's injury and his own profit.
Lees V. Whitcomb, 5 Bing. 34. of certain peculiar facilities derived
46 721
§ 478 THE DOMESTIC KELATIONS. [PART Vt.
to his employer, like all other agents, for money or other goods
received in the line of duty, and, except in certain cases, cannot
set up the right of a third party in opposition to the employer's
interests.^ He should devote his time and energy to his master's
interests as those ordinarily diligent in his pursuit are wont to
do under the circumstances.
§ 478. Servant's Accountability to his Master ; Negligence,
Unskilfulness, &c. — So is the servant liable for gross negligence
in the care of his master's property entrusted to him, and, as it
would appear, for want of ordinary care and diligence ; though
not for ordinary accidents where no culpable negligence ap-
pears.2 Servants are also liable for fraud and misfeasance, as
in cases of simple bailment generally. Suits of this sort,
strictly applicable to domestic servants, are extremely rare ;
but there are instances to be found in the old books. Thus it
is said that if a man deliver a horse to his servant to go to
market, or a bag of money to carry to London, which he neg-
lects to do, the master may have an action of account or
detinue against hini.^ An employee or servant is liable in a
suit brought by his master to indemnify the latter from the
consequences of his negligence or misconduct* And this, too,
notwithstanding the concurring negligence of another servant
not made a defendant with him.^ And a person employed to
do work requiring skill or involving unusual hazard, and under-
taking to do it for suitable compensation in a skilful or careful
manner, is bound to so do it ; and he is responsible to his em-
ployer for injury occasioned the latter by the negligent manner
in which he performed the work.^ There is no reason, apart
under the contract of employment, 3 Bac. Abr. tit. Master and Servant
though he waited till the engagement (M).
ended before making use of them. See * Green v. New River Co., 4 T. R.
Adams Express Co. v. Trego, 35 Md. 589 ; Pritchard v. Hitchcock, 6 Man &
47. Gr. 165; Smith, Mast. & Serv. 66 But
1 See Story, Agency, § 217, and n. ; see Colburn v. Patmore, 1 Cr. M. & R.
Dixon V. Hamond, 2 B. & Aid. ?A0; 73.
Smith, Mast. & Serv. 67, and cases <> Zulkee v. Wing, 20 Wis. 408.
cited ; Murray v. Mann, 2 Exch. 538 ; '^ AVillard v. Pinard, 44 Vt. 34 ;
Cheesman v. Exall, 6 Exch. .341. Holmes v. Onion, 2 C. B. n. s. 790 ; Pix-
2 Savage v. Walthew, 11 Mod. 1-35; ler v. Nichols, 8 Iowa, 106; English v.
Bac. Abr. tit. Master and Servant (M), Wilson, 34 Ala. 201 ; Parker v. Piatt,
(I); Smith, Mast. & Serv. 65. 74 111. 430; Page v. Wells, 37 Mich.
722
CHAP. III.] RIGHTS, ETC., OF THE SERVANT. § 481
from some special contract to which he is a party, why the
servant of a common carrier should be held responsible to his
master on the footing of an insurer.^
§ 479. Master and Servant may defend one another. — The
old writers say that the servant may justify a battery in the
necessary defence of his master ; and the master, as the weight
of argument goes, may do the same on his servant's behalf.^
§480. Servant a Competent Witness for his Master. — A
mere agent or servant is a competent witness for his principal
or master, from public convenience or necessity.^
CHAPTER III.
EIGHTS AND LIABILITIES OF THE SERVANT AS TO THIRD
PERSONS.
§ 481. Servant not personally Liable on Contracts ; Excep-
tions. — As a general rule, servants are not liable personally
on contracts entered into by them on behalf of their masters.
Such a principle would be inconsistent with the very relation.
But like any other agent, a servant may make himself liable,
provided he contract on his own and not his master's behalf.'*
Questions of this sort turn upon circumstances ; as to whom,
for instance, the credit was given. But if there be a wrong or
omission of right on the servant's part ; if, for instance, he
transcends his powers, or acts without authority, like all other
agents he becomes personally liable to the person with whom
415. See also Story, Bailm. § 432 ; Stringfellow v. Mariot, 1 Ala. 573 : Doe
Schouler, Bailm. 107. But as to an in- v. Himelick, 4 Blackf. 494; 1 GreenL
fant servant, see Meeker v. Kurd, 31 Evid. § 416 ; 1 Phill. Evld. 10th ed.
Vt. 639. 607 et seq.
1 De Reamer v. Pacific Express Co., * Smith, Mast & Serv. 194; Story,
84 Mo. 520. Agency, § 261 ; Owen v. Gooch, 2 Esp.
^ See 2 Kent, Com. 261 ; 1 Bl. Com. 667 ; Thomson v. Davenport, 9 B. & C.
429. 88.
3 Wainwright v. Straw, 15 Vt. 215;
723
§ 482 THE DOMESTIC RELATIONS. [PAKT VI.
he deals in his master's name.^ For, in respect to such con-
tract, he is no servant at all, but one rather who wilfully or
innocently misrepresents himself as such.
Instances of this principle occur in the every-day transac-
tions of life. A broker who puts his own name to a bill of
exchange, without words to imply an agency, renders himself
personally liable to a'stranger.^ But the receipt of a servant
is the receipt of his master, for money rightfully paid him in
the course of business.^ And a sheriffs deputy is not liable
to a judgment creditor for money collected by him under an
execution in the creditor's favor.*
The reason of the general rule of exemption is that the
principal or master, not the agent or servant, shall answer for
the consequence of the latter's contract. The servant is directly
responsible to his master, not then to strangers.^
§ 482. Rule of Servant's Liability for his Torts and Frauds.
— But, as Lord Kenyon has observed, the principle does not
apply to cases where there is corruption in the foundation of
the contract, or it is bottomed in oppression or immorality.^
Where money is obtained by means of trespass or tort ; where
a servant misappropriates a fund entrusted to him to be paid
to others ; in these and similar cases it has been held that the
servant is suable by third persons.''' If, for instance, a debtor
sends by his own servant money which he owes his creditor,
and the servant refuses to deliver it, and retains it, an action
for the money may be maintained by the creditor against the
servant. But it is otherwise if the debtor countermanded his
orders and received the money back from the servant.^
In cases of tort, the rule is general that all persons con-
cerned in the wrong are chargeable as principals. For a mis-
1 Smout V. Ilberry, 10 M. & W. 1
Paterson v. Gandasequi, 15 East, 62:
8. c. 2 Smith, Lead. Cas. 358.
'•^ Leadbitter v. Farrow, 5 M. & S
345; Jones v. Littledale, 6 Ad! & El
486.
3 Baniford v. Shuttleworth, 11 Ad
& El. 926.
4 Colvin V. Holbrook, 2 N. Y. 126,
And see infra, § 489, as to the doc
724
trine of agency applicable to the ser-
vant's acts on his master's behalf.
^ See Shearra. & Redf. Negligence,
128; Smith, Mast. & Serv. 194 ef spq.
6 Miller v. Aris, 3 Esp. 232; Smith,
Mast. & Serv. 2U4.
■^ BuUer v. Harrison, Cowp. 565 ;
Tugman v. Hopkins, 4 Man. & Gr. 389;
Howell V. Batt, 5 B. & Ad. 504
8 Lewis V. Sawyer, 44 Me. 332.
CHAP. III.] RIGHTS, ETC., OF THE SERVANT. § 482
feasance, therefore, or positive wrong, which affects the person
or property of another, the servant cannot shield himself by
the excuse that he acted merely in obedience to his master's
orders, or for his master's benefit.^ It is said that in such a
case he is sued, not as a deputy or servant, but as a wrong-
doer.^
But a distmction is sometimes taken between misfeasance
and nonfeasance. For mere negligence or nonfeasance the
servant is not liable to a stranger.^ Thus, where a banker is
employed to collect a note, which he puts into the hands of
another banker, through whose negligence the debt is lost,
the creditor cannot sue the latter banker, though he was the
one actually at fault.'* This same principle is applied in
Massachusetts, to protect one servant from the injurious con-
sequences of his own wrongful acts to a fellow-servant when-
ever such acts amount to nothing more than mere negligence
or carelessness.^ So the servant of a carrier is not generally
responsible for the loss of a parcel, to the owner, who should
rather look to the master.^ And a servant who has driven a
stray horse from the highway into his master's pasture, for the
purpose of preventing it from straying on cultivated land, does
not become liable for its conversion by turning it into the
highway again by direction of his master.'^
Perhaps the true principle is to refer all such acts of the
servant to the scope of his employment in the particular service
of his master. We shall presently examine the doctrine of
respondeat sicperior with reference to the master, under which
head it is most commonly considered. For as a master is more
likely to be pecuniarily responsible than his servant, so do those
1 Sands v. Child, 3 Lev. .352; Lane * Montgomery Bank y. Albany Bank,
r. Cotton, 12 Mod. 488 ; Perkins v. 7 N. Y. 459.
Smith, 1 Wils. .328 ; Smith, Mast. & 5 Albro v. Jaquith, 4 Gray, 99. And
Serv.213, 214; Richardson c. Kimball, see Brown v. Lent, 20 Vt. 529. But
28 Me. 463; Bennett v. Ives, 30 Conn, see Phelps v. Wait, 30 N. Y. 78.
329 ; Johnson v. Barber, 5 Gilm. 425. ^ Williams v. Cranstoun, 2 Stark.
See Hill v. Caverly, 7 N. H. 215. 82. See Smith, Mast. & Serv. 213 et
2 See Lane !'. Cotton, sitpro, per seq.
Lord Holt ; Hoffman v. Gordon, 15 ' Wilson v. McLaughlin, 107 Mass.
Ohio St. 211. 587.
3 See Lane v. Cotton, sttpi-a, per
Lord Holt.
725
§ 48J: THE DOMESTIC RELATIONS. [PART VI.
who would sue for injuries incline most willingly tc make the
master the defendant in their suits to recover damages.^ Where
a servant lawfully takes a chattel with its owner's consent, as
for instance a sewing-machine for his master to repair it, he is
not liable if his master wrongfully converts the chattel to his
own use, unless it be shown that he personally was a party to
the wrongful act,^ for a servant is no agent in his master's
torts.
§ 483. Torts and Frauds of Public Officers. — Government is
not liable for the torts and frauds of its agents. Nor are public
officers in general liable for the misdeeds of their subordinates.
Thus the Postmaster-General cannot be sued for the loss of
letters in the post-office through the fault of his agents.^
Public policy furnishes, perhaps, the strongest reason for this
doctrine. " As to an action lying against the party really
offending," Lord Mansfield, however, observed, " there can be
no doubt of it; for whoever does an act by which another
person receives an injury, is liable in an action for the injury
sustained." * And in several instances have deputy-post-
masters been sued in damages for their own torts.^ So are
certain public officers, as sheriffs and others, acting in a purely
ministerial capacity, frequently held to answer the conse-
quences of their misconduct.^ But great latitude is to be
allowed to one's official acts performed from a sense of duty as
guardian of the public interests, and with honorable motive,
even though private individuals may incidentally suffer detri-
ment thereby.
§ 484. Criminal Accountability of Servant. — For his unlaw-
ful acts knowingly committed in his master's service a servant
is generally criminally answerable.^
1 See next chapter. Am. Law Rev. 1-17. And see Schou-
2 Silver I'. Martin, 59 N. H. 580. ler, Bailm. 240-242.
3 Whitfield V. Lord Le Despencer, ■* Cowp. 765. And see Smith, Mast.
Cowp. 765. Nor should he be, since & Serv. 219.
he is but the servant of government, ^ See 5 Burr. 2709, 2711, 2715.
— the common employer of both supe- ^ Bac. Abr. tit. Sheriff.
rior and subordinate officials. See 4 ^ State v. Walker, 16 Me. 241.
726
CHAP. IV.] EIGHTS, ETC., OF THE MASTER. § 487
CHAPTER IV.
GENERAL RIGHTS AND LIABILITIES OF THE MASTER.
§ 485. Leading Division of this Chapter. — In this chapter we
shall discuss, first, the general rights, second, the general liabili-
ties, of the master as concerns third persons and his servant.
§ 486. Master's Right of Action for Injuries to Servant. —
First, as to his rights. The right of action to the master for
personal injuries sustained by his servant is recognized in sev-
eral instances.^ This right grows out of the loss of service sus-
tained by the master, and the same principle has been noticed
with reference to parents. A service cle facto is sufficient in all
such cases.^ And it cannot be pleaded in defence that the acts
complained of amounted to felony, and that the person com-
mitting them had not been prosecuted. But, under a familiar
rule, the master cannot maintain an action for injuries which
cause the immediate death of his servant.^
§ 487. Right of Action for Seduction, Enticement, &c., of
Servant. — Again, the action for seduction depends upon the
existence of the relationship of master and servant; and the
loss of service gives the right of action. This action is usually
brought by the parent, or one standing in the stead of a parent ;
though the legal remedy is not perhaps confined to such
persons.*
1 See Duel v. Harding, Stra. 595; be brought. Here the injury was sus-
Hall V. Hollander, 4 B. & C. 660 ; Hod- tained while the servant was a passen-
soU V. Stallebrass, 11 Ad. & El. 301 ; ger. Ames v. Union R. 117 Mass. 541.
Dixon V. Bell, 1 Stark 287 , Ames v. See § 457, supra, n.
Union Co., 117 Mass. 541, 3 Osborn v. Gillett, L. R. 8 Ex. 88.
2 Smith, Mast & Serv 83-85, and * See Parent and Child, s^z/n-a; Noice
cases cited; Bac. Abr tit. Master & w. Brown, 39 N.J. L. 569 ; Smith, Mast.
Servant (O). The relation of mas- & Serv. 85 et seq. ; Addison and other
ter and apprentice enables such suit to general writers on Torts.
727
§ 487 THE DOMESTIC RELATIONS. [PART VI.
For enticing away or harboring one's servant the common
law also gives the riglit of action against the offending party ;
and where a person, after notice, continues to employ another
man's servant, that other, it is said, may maintain an action
against him, although at the time he hired him the second mas-
ter did not know tliat he was hiring another man's servant ;
whence it follows that one who did not entice may yet be lia-
ble for harboring.^ The mere attempt to entice a servant away,
no damage following, does not entitle the master to maintain an
action.^ Nor will the action lie after the master has recovered
from the servant a stipulated penalty for leaving the service ; ^
nor for inducing a servant to leave at the expiration of the time
for which he was hired, though he had no previous intention of
leaving.* For causing his servants to leave him by threats a
master may also sue."
A genuine subsisting contract of service between the servant
and his former master should, of course, be shown ; ^ though
there may be a binding contract of service merely executory,
which one wilfully prevents another from entering upon so as
to render himself liable in damages for that offence.'^ Nor can
the so-called master, where two, socially equal, occupy a rela-
tion of constructive service, rely with certainty upon the force
of language to help him through his suit against a stranger.
In a late English case some doubts were expressed whether
this remedy was to be extended beyond the case of menial
servants and laborers ; whether, in fact, the higher classes
could claim its benefit at all in matters growing out of their
mutual contracts.^ The general rule of the law is certainly to
1 Fawcet v. Beavres, 2 Lev. 63; 3 75.
Smith, Mast. & Serv. 79 ; Blake v. Lan- * Nidiol v. Martyn, 2 Esp. 734 ; Bos-
yon, 6 T R. 221 ; Bird v. Randall, 8 ton Glass Manufactory v. Binney, 4
Burr. 1352 ; Reg. v. Daniel, 6 Mod. 99, Pick. 425.
182. And see Lumley v. Gye, 2 Ell. & & .33 La. Ann. 1261.
BI. 216, where the question is fully ^ g^g Smith, Mast. & Serv. 79, and
discussed. But laches may be impu- cases cited ; Sykes v. Dixon, 9 Ad. &
table to the master. Demyer v. Sou- El. 603 ; Campbell v. Cooper, 34 N. H.
zer, 6 Wend. 436. Local statutes are 49. It is enough that the service is one
in aid of tlie doctrine of the text. 11 at will, if subsisting when interrupted.
Lea, 259, 271. ' Walker v. Cronin, 107 Mass. 655.
2 Bird V. Randall, 3 Burr. 1352. Cf. » Lumley v. Gye, 2 Ell & Bl. 216.
Haskins v. Royster, 70 N. C. GOl. This suit was with reference to the en-
728
CHAP. IV.] EIGHTS, ETC., OF THE MASTER. § 488
confine its remedies by action to the contracting parties, and to
damages directly and proximately consequent on the part of
him who is sued ; the case of master and servant being excep-
tional.^ The right of action in such cases, founded upon the
pure relation of service, is not greatly favored in this country,
though it is distinctly recognized.^ And the enticement of a
servant in some States renders one liable to prosecution.^
The general doctrine which upholds the master's action in all
these torts is that a valid and subsisting service owed to the
master has been interrupted, to his injury, by another's wrong-
ful act.
§ 488. Whether Servant's Outside Acquisitions belong to Mas-
ter, &c. — What a servant may acquire during the relation of
service, entirely without the legitimate consideration of such
service, does not belong to the master. This rule must be rea-
sonably and beneficially applied according to circumstances.
One may become bound by a contract for hiring, but, if not an
absolute slave (and such a class our law does not now recog-
nize), he may generally gain something for himself otherwise if
he choose. Thus, if one in the service of another, not employed
to invent, make an invention, the patent-right is his, and not
ticement of Wagner, the vocalist, from 77 N. C. 37. And see, as to measure of
one tlieatre to another. The majority damages, Lee v. West, 47 Ga. 311.
of the court (Coleridge, J., dissenting) 3 Bryan v. State, 44 Ga. 328; Rose-
thouglit tlie action would lie, even berry v. State, 50 Ala. liiO; 89 N. C.
though the parties were not strictly 553. The old rule was that a master
master and servant. As to one orally deprived of the services of an appren-
contracting to serve as a farm laborer, tice or servant by the enticement or
see Daniel v. Swearingen, 6 Rich, harboring of another might sometimes
297. waive the tort, and sue for the wages
1 See Coleridge, J., supra. And see due from the second master ; the maxim
Ashley v. Harrison, Esp. 48. being, that the acquisition of the ser-
2 See Scidmore v. Smith, 13 Johns, vant was the acquisition of the master;
322 ; Peters v. Lord, 18 Conn 337 ; but as Mr. Smith has observed, this
Salter r. Howard, 43 Ga. 601 ; Burgess rule applied more strictly during the
i\ Carpenter. 2 S. C. n. s. 7 ; Bixby v. existence of villenage. See Smith, Mast.
Dunlap, 56 N. H. 456; Haskins v. Roy- & Serv. 80, 81. Most of the cases to
ster, 70 N. C. 601 ; Noice r. Brown, 39 sustain this principle relate to appren-
N. J. L. 569. In general, a scienter tices in a seafaring way ; but it is
should appear ; but where the entice- thought to extend to servants in gen-
ment was purely malicious, greater eral. Co. Litt. 117 a, n. ; Smith, s!/;;?-a,
damages may be allowed. Bixby r. and cases cited; Lightly v. Clouston,
Dunlap, 56 N. H. 456; Morgan v. Smith, 1 Taunt. 112.
29
§ 489 THE DOMESTIC RELATIONS. [PART VI.
his master's.^ And the same rule appUes to salvage money,
the result of extraordinary service on his part.^ And one may,
moreover, stijiulate that outside certain hours he shall have his
own time.^ But the master shall have the advantage of his
servant's contracts as to matters within the scope of the
service.'*
It is held in New Hampshire, that if a servant, having his
master's money for a specitic purpose, make use of it in per-
forming a service which he, without his master's privity, has
undertaken for another, the master cannot, by afterwards adopt-
ing the servant's act as his own, charge that other party upon
the contract made by him with the servant.^
§ 489. Liability of Master upon Servant's Contracts ; Servant's
Agency. — Second. As to the master's liabilities. A master is
liable for the contract of his servant, made in the course of his
employment about his master's business.^ Supposing I have
a servant, and that servant is in the habit of purchasing the
family supplies, in the course of his usual employment ; his
contracts for such purchases will bind me. But is that simply
because he is my servant ? If his usual employment be upon
the farm, and I never gave him authority to make purchases,
he cannot bind me by going to the store merely because he
happens to be my servant. So I can authorize others to pur-
chase family supplies : it may be my wife, or my child, or any
friend. In all such cases, then, I am bound, because, as is com-
monly said, I have constituted another my agent, not strictly
because I have a servant. No power, therefore, can be inferred
from the relation of master and servant, it is said, by which
1 Bloxam v. Elsee, 1 Car. & P. 558. 377. See 2 Sohouler, Pers. Prop. 14-
But see Smitli, Mast. & Serv. 82. 17. On a contract for services for
2 Mason v. The Blaireau, 2 Cranch, fixed compensation, the employer was
240. hehl, priinn facie, entitled to notary's
3 Wallace v. De Young. 98 111. 638. fees earned in the employment. 86
4 Damon v. Osborn, 1 Pick. 481. A Mo. 27.
servant who finds lost property may ^ Webb v. Cole, 20 N. H. 400. As
assert the k'j>al rights of finder for his to a master's right to reserve wages
own benefit against all but the true when served with garnishment or trus-
owners, notwithstanding the property tee process, see Davis v. Meredith, 48
was found on his master's premises. Mo. 263.
Hamaker v. Blanchard, 90 Fenn. St. ^ Helyear v. Hawke, 5 Esp. 72.
730
CHAP. IV.] RIGHTS, ETC, OF THE MASTER, § 489
the latter can bind the former.^ Mr. Smith states the princi-
ple more correctly, when he says that the power which a ser-
vant possesses of binding his master by contracts is founded
upon, or rather is the basis of, the general law of principal and
agent.^ For, in truth, it would seem that the relation of master
and servant is the older at the law. However this may be, the
rule is properly stated, at the present day, to be that the ser-
vant can only bind his master as his agent ; and this on the
principle, common to both branches of the law, that the act of
the servant or agent is, in fact, the act of his master or princi-
pal : the maxim being, Qui facit per aliiiin facit per sc.^
The well-known rules of agency need not, then, be set out
here at any length. We only observe that the contract of a
servant, in order to bind the master, must be within the scope
of his authority ; that this authority may be expressly conferred,
or may be implied from the master's conduct ; that subsequent
ratification of the servant's acts is as binding as a previous au-
thority ; that the authority of a servant is co-extensive with his
usual employment ; and that the scope of his authority is to be
measured by the extent of his employment.^ All these princi-
ples the reader will expect to find much more fully illustrated
in any treatise upon agency than in one which professes to take
up simply the law of the domestic relations. There may be
servants for a variety of purposes ; there may be agents, too,
for a variety of purposes ; and between servant and agent is as
yet no strict line of legal demarcation. In general, a master is
not considered liable on the contract of his servant, unless the
servant, at the time he entered into it, assumed to act as his
agent.^ But this principle is not artificially applied, the ques-
tion of actual intent prevailing.^
Where a servant is employed to transact business, and has
» Moore v. Tickle, 3 Dev. 244. Litt. 207 a ; Bac. Abr. tit. Authority
'^ Smitli, Mast. & Serv. 122. See (B) ; 2 Kent, Com. 612 et s^q.
Bac. Abr. tit. Master and Servant ( K). ^ Wilson i-. Tumman, 6 M. & G. 236 ;
3 fb. And see Co. Litt. 52a; Story, 4 Inst. 317 ; Wallier v. Hunter, 2 C. &
Agency, §§ 7, 8. B. 334.
* See Story, Agency, §§ 74, 75; lb. « See Trneman v. Loder, 11 Ad.
§ 239 et xeq. ; Bird v. I^^rown, 4 Exoh. & El. 694, 595 ; Soiith, Mast. & Serv.
798 ; Sniitli, Mast. & Serv. 123-126 ; Co. 132.
731
§ 489 THE DOMESTIC RELATIONS. [PART VI.
no particular orders with reference to the manner in which that
business is to be transacted, he is considered as invested with
all the authority necessary for transacting the business entrusted
to him and which is usually entrusted to agents employed in
similar matters. In every case such authority embraces the
appropriate means to accomplish the desired end.^ Thus a
servant sent without money to buy goods, has implied authority
to pledge his master's credit.^ And in numerous instances the
master has been considered bound by his servant's warranty,
that being usual in effecting certain sales ; though not where
the warranty is subsequent to the sale and not part of the same
transaction ; ^ lor the rule is general that acts and admissions
by the servant out of the course of his employment will not
bind the master.^ If the master intends limiting his respon-
sibility for the servant's acts performed in the usual scope of
employment, he should give due notice to those dealing with
the servant.^
There is an important legal distinction between general agents
and special agents ; hence comes the rule that wherever a master
has held out his servant as his general agent, whether in all
kinds of business, or in transacting business of a particular
kind, the master, in the absence of contrary notice, will be
bound by the servant's act, if within the scope of his usual
employment, notwithstanding the servant has acted contrary
to his master's orders.^ This is a principle of frequent appli-
cation.'^ But where a servant is employed by his master to act
for him in a single transaction, he must be regarded as the spe-
1 Story, Agency, §§ 60, 85; Smith, * Fairlie v. Hastings, 10 Ves. 128;
Mast. & Serv. 128; Cox v. Midland Story, Agency, §13(3; Garth v. How-
Counties R. R Co., 3 Exch. 278; How- ard, 8 Bing. 451.
ard V. Bailiie, 2 H. Bl. 618. ^ As where one intends that parties
^ Tobin V. Crawford, 9 M. & W. dealing with his clerk or servant in a
718. And see Weisger v. Graham, 3 particular line of transactions should
Bibb, 313. look to the latter alone for payment.
3 See Murray v. Mann, 2 Exch. F>?,8; Pardridge v. La Pries, 84 111. 51.
Alexander v. Gibson. 2 Campb. 555; ^ Smith, Mast. & Serv. 132-135;
Helvear v. Hawke, 5 Esp. 72 ; Woodin Story, Agency, §§ 126, 127.
V. Burford, 2 Cr. & M. 391 ; Saunder- "^ See Nickson ;-. Brohan, 10 Mod.
son V. Bell, 2 Cr. & M. 304 ; and other 100 ; Rimell v. Sampayo, 1 Car. & P.
cases cited in Smith, Mast. & Serv. 129, 255 ; Jordan v. Norton, 4 M. & W.
130. 155.
732
CHAP. 1V\] RIGHTS, ETC., OF THE MASTER. § 490
cial agent of his master ; and iu such case it is incumbent upon
every one dealing with him, who wishes to charge his master
upon his contracts, to inquire into the extent of his authority ;
as, should he exceed it, his master will not be bound.^
Since the nature of the usual employment of a servant is the
measure of his implied authority, it follows that this authority
can neither be limited by the private instructions of the master
nor controlled by any secret agreement between him and his
servant. " If this could be done," says a recent writer, " in
what a perilous predicament would the world stand in respect
of their dealings with persons who may have secret communica-
tions with their principal. There would be an end of all dealing
but with the master." ^ But if a third party knows of private
agreements or instructions, he cannot, of course, charge the
master upon any inconsistent contract ; for it enters as an
element into his own dealings with that servant.^
§ 490. Master's Civil Liability to Others for Servant's Torts.
— Hitherto we have spoken of the master's liability on his ser-
vant's contracts ; now we come to his civil liability for the ser-
vant's torts, whether to third parties or to the servant himself.
This subject receives at the present day more attention in the
courts than any other topic of the so-called law of master and
servant ; perhaps more than all the other topics together ; but
the illustrations so utterly transcend the relation of domestic
service, being borrowed in great part from the analogies of
modern business corporations and servants in such employ, that
we shall make no effort to follow these doctrines into their
minute details. Here we find not only the maxim qui facit per
aliuni facit per se cited (so well applied to the law of agency),
but that other, more strictly appropriate to the present relation,
respondeat superior. The universal rule is that whether the act
of the servant be of omission or commission, whether his negli-
geuce, fraud, deceit, or perhaps even wilful misconduct, occasion
the injury, so long as it be done in the course and scope of his
1 Smith, Mast. & Serv. 137 ; Ward 2 Smitli, Mast. & Serv. 1-33 ; 10 Mod.
V. Evans, 2 Ld. Raym. 928 ; Waters v. 110.
Brogden, 1 Y, & J. 457. 3 Howard v. Braithwaite, 1 Ves. &
B. 209.
733
§ 490 THE DOMESTIC RELATIONS. [PART VI.
employment, his master is responsible in damages to third per-
sons.i And it makes no difference that the master did not give
special orders ; that he did not authorize, or even know, of the
servant's act or neglect; for even though he disapproved or for-
bade it, so long as the act was done in the course of the servant's
employment, he is none the less liable.^
So far is this doctrine carried that a master is even held liable
for an injury occasioned by what might to many minds appear
the wanton and violent conduct of his servant in the perform-
ance of an act within the scope of his employment.^ We should
say, however, that a proper analysis of the cases where a master
is held responsible for his servant's torts, would show either that
the servant was negligent within the scope of his employment ;
or else that he displayed a wanton or reckless purpose to accom-
plish his master's employment in a wrongful manner ; ^ for if
he wilfully gratified his own malice under the pretext of serving
his master, he alone should be answerable for his violence.
Whether an act amounts to negligence, misfeasance, and
the like, is to be determined in each case by its own cir-
cumstances.^ The injury occasioned may be to person or
property.^
' Story, Agency, § 452 ; Smith, * See Howe v. Newniarch, 12 Allen,
Mast. & Serv. 151, 152; Shearm. & 49; Cohen v. Dry Dock R., 69 N. Y.
Kedf. Negligence, 65. 170 ; Rounds v. Delaware R., 64 N. Y.
'- Smith, ib. A principal may be 129, per Andrews, J.
answerable where he has received the ^ See Crofts v. Waterhouse, 3 Bing.
benefit of his agent's fraud committed 319.
within the scope of authority. Mackay 6 But among the many instances
V. Commercial Bank, L. R. 5 P. C. 410. wliich have been considered as falling
Cf. Church v. Mansfield, 20 Conn, within the rule are these: Negligent
284. driving by a servant. Michael v. Ales-
3 Thus, where the conductor of an tree, 2 Lev. 172 ; Jones v. Hart, 2 Salk.
omnibus, in removing therefrom a pas- 441. Though not inevitable accident
senger whom he deemed to be intoxi- without fault. Holmes ?'. Mather, L. R.
caled, forcibly dragged him out and 10 Ex. 261. The negligent kindling of
threw him upon the ground, so that he a fire. Filliter v. Phippard, 11 Q. B.
was seriously injured, it was held that 347. This principle is frequently ap-
tlie proprietor was liable. Seymour v. plied to fires caused by locomotive
Greenwood, 7 Hurl. & Nor. 355. And engines. See Smith, Mast. & Serv.
for a servant's assault in the bona fide 153, n. Piling up wood improperly,
performance of the service, the master, Harlow v. Humiston, 0 Cow. 189. Mis-
tliough in no manner consenting or management of a boat, whereby an-
ajding, has been held liable. Wade v. other is injured. Page v. Defries, 7
Thayer, 40 Cal. 578. Best & S. 137 ; Huzzey v. Field. 2 Cr.
734
CHAP. IV.] EIGHTS, ETC , OF THE MASTER.
§491
A master is liable, though the act of the servant was not
necessary for the proper performance of his master's orders, or
was really contrary thereto ; so long as the servant was acting
in substantial execution of his master's orders.^ Perhaps this
may not readily be understood. But take the common instance
of negligent driving ; where, we shall suppose, a coachman or
driver, or some member of the paternal household, injudiciously
or recklessly, or even intentionally, but not wantonly, turns or
races his horses so as to run down another's carriage.^ Unless
the rule of liability were carried to such an extent, we should
find masters constantly escaping the consequences of their
servants' behavior.
§491. The Same Subject; Limitations of Rule. — But a
master is not responsible for any act or omission of his ser-
M. & R. 4.32. Negligent management
of gas by a servant of the gas com-
pany. 82 Ky. 4o2. Negligence in
leaving a cellar iiole open. 76 Me.
100. Fraud committed in the course
of the servant's employment, accord-
ing to some authorities. Story, Agency,
§ 26-t ; Southern v. How, Cro. Jac. 471.
Mistaken arrest under certain circum-
stances. Moore v. Metropolitan R. R.
Co., L. R. 8 Q. B. .36. But see Allen
V. London, &c. R. R. Co., L. R. 6 Q. B.
65. Infringement of a patent by work-
men. Betts V. De Vitre, L. R. 3 Ch.
429. Unskilful workmanship. Gil-
martin V. New York, 55 Barb. 2.39 If
the owner of a dog appoints a servant
to keep it, the servant's knowledge of
the dog's ferocity is the knowledge of
the master. Baldwin v. C'asella, L R.
7 Ex. .32-5. Tlie rule may apply like-
wise where a servant leaves the bars
down, or a gate or door negligently
open. See Chapman v. New York, &c.
R. R. Co., 33 N. Y. 369. Or throws his
master's things out of a window care-
lessly upon a passer-by. Corrigan v.
Union Sugar Refinery, 98 Mass. 577.
Cf. 139 Mass. 556; 105 Penn. St. 169.
And it is to be observed that the mas-
ter's responsibility is not confined to
those who work under his immediate
supervision, but extends to all others
whom he selects to do any work or
superintend any business for him. Rex
V. Hoseason, 14 East, 605; Laugher v.
Pointer, 5 B. & C. 554; Wayland v.
Elkins, 1 Stark. 272. As if he should
emploj' a bailiff, steward, or superin-
tendent. How far this principle might
be extended, it is useless to speculate.
Where the injury was the combined
carelessness of master and servant, the
master ought the more to be held
liable. Tuel v. Weston, 47 Vt. 634.
But unless the master was more than
ordinarily careless, and chargeable in
fact with gross misconduct, he ought
not to be held liable for punitory dam-
ages, but only so as to compensate the
party injured. Cleghorn i\ N. Y. Cen-
tral H., 56 N. Y. 44 ; Hawes v. Knowles,
114 Mass. 518.
1 Smith, Mast. & Serv. 157.
2 Croft V. Alison, 4 B. & Aid. 590;
Joel V. Morrison, 6 Car. & P. 501 ;
Sleath V. Wilson, 9 Car. & P. 607. And
see Illidge v. Goodwin, 5 Car. & P. 190 ;
McDonald v. Snelling, 14 Allen, 290.
So with one of a father's family who
may be deemed his servant. Schaefer
V. Osterbrink, 67 Wis. 495. Aliter, as
to a runaway horse, where the driver
is not careless. Hohnes v. Mather, L. R.
10 Ex. 261.
735
§ 491 THE DOMESTIC RELATIONS. [PAllT VI,
vaiits which is not connected with the business in which they
serve hiin, and does not happen in the course or the scope of
their employment.^ Beyond the scope of his authority, the
servant is as much a stranger as any other person. Thus,
where a servant is employed only to harrow one field and
watch a fire in another, and he undertakes besides to burn a
pile of rubbish.^ So, where one who is authorized to distrain
cattle trespassing on his master's land, drives the horses of a
neighbor on to the land and then distrains them.^ Or where
the servant is driving his master's team, not in the master's
business, but in the servant's own private or unpermitted
business.^ Or where one performs a task outside of his ordi-
nary and proper employment, or turns aside from a journey in
which he was employed, to take a different one, and thereby
commits the injury.^ The distinction in such cases is not
always clear, as their examination will show ; but we should
hardly expect to see the rule of respondeat superior applied
where a wrong is done wholly for one's own purpose and in
his own concerns, disconnected from the employment of the
master in question.^
It has been ruled that a servant could have no implied
authority to do that which it would not be lawful, under any
1 Smith, Mast. & Serv. 160, Shaw Supr. 465; Stone v. Hills, 45 Conn. 44.
V. Reed, 9 W. & S. 72 ; Harriss v. See also Schouler, Bailm. 1.35, for the
Mabry, 1 Ired. 240 ; Lowell v. Boston application of this doctrine to the hirer
& Lowell R. R. Co., 2.3 Pick. 24 ; of a horse. Allegation of malicious
Shearm. & Redf. Negligence, 69; Fos- assault and battery by a servant does
ter V. Essex Bank, 17 Mass. 500; not state a just cause of action against
Brown v. Purviance, 2 Har. & Gill, the master. 140 Mass. 327. Nor of a
316. servant's cruelty to an animal without
'^ Wilson V. Peverly, 2 N. H. 548. the presence, order, or direction of the
And see Oxford r. Peter, 28 III. 4.34. master. 47 N. J. L. 237. But as to in-
3 Lyons v. Martin, 8 Ad. & El. 512
Goodman v. Kennell, 8 Car. & P. 167
Lamb r. Lady Palk, 9 Car. & P. 629
M'Kcnzie v. McLeod, 10 Bing. 385
jury done by a horse, whose master
was aware of the servant's long habit
of leaving the animal unhitched in the
street, see 54 Mich. 73. The distinc-
Oxford V. Peter, 28 111. 434. tion of the text is applied to ejection
* 26 Fed. R. 912; Way z>. Powers, from a passenger car by a railroad
57 Vt. 135. conductor. Schouler, Bailm. § 658.
5 Storey v. Ashton, L. R. 4 Q. B. •> Stevens v. Armstrong, 6 N. Y.
476 ; Rayner v. Mitchell, 2 C. P. D. 435 ; Yates v. Squires, 19^ Iowa, 26 ;
357 ; Sheridan v. Charlick, 4 Daly, Little Miami R. R. Co. v. Wetmore, 19
338; Cavanaugh v. Dinsmore, 19 N. Y. Ohio St. 110.
736
CHAP. IV.] RIGHTS, ETC., OF THE MASTER. § 492
circumstances, for either him or his employer to do.^ Nor, on
general principles, is the master liable if the person injured was
not in the exercise of ordinary care at the time of the injury,
and so aided in effect in bringing on his suffering.^ Many
decisions indicate the doctrine that for wilful acts of the servant
the master is not responsible ; but this exemption usually seems
to rest in reality upon the ground that the acts complained of
were not done in the course and scope of the servant's employ-
ment.^ To apply these and analogous rules is not easy. After
all, the principle of scope of the servant's employment seems
best to explain the extent of the master's liability for his tort ;
and the American cases appear to have brought it to bear, what-
ever the nature of the injury, and however difficult it might
sometimes be found to apply the principle understandingly to
a particular state of facts.*
§ 492. Master's Responsibility for Tort to his own Servants ;
Exception as to Fellow-Servants, &c. — An exception to the
master's responsibility for the tortious acts of his servant is
found in the rule, now well settled in England and America,
that a master is not in general responsible to his own servant
for any injury which the latter may sustain through the negli-
gence or wrongful act of a fellow-servant, unless the master has
been negligent in his selection or retention of the servant at
fault. ^ The application of this rule is usually to railway com-
panies and other common carriers, not often to domestic ser-
vants ; but all who occupy the relation of master and servant
come within its scope.^ The converse of our rule holds good ;
1 Poulton V. South-Western R. R. ^ Smith, Mast. & Serv. 187 . Priest-
Co., L. R. 2 Q. B. 534. See Russell v. ley r. Fowler, 3 M. & W. 1 ; Hutchinson
Irby, lo Ala. 131. v. York, &c. R. R. Co., 5 Exch .343;
2 Smith, Mast. & Serv. 161 ; Butter- Farwell v. Boston & Worcester R. R.
field r. Forrester, 11 East, 60 ; Illinois Co., 4 Met. 49 ; Bartonshill Coal Co. u.
C. R. R. Co. I'. Baches, 55 III. 379. Reid, 3 Macq. H. L. 2t56 ; Abram v.
3 See Shearm. & Redf. Negligence, Reynolds, 5 Hurl. & Nor. 143 ; Shearm.
73, Harris v. Nicholas, 5 Munf. 483; & Redf. Negligence, 101, and cases
Moore v. Sanborne, 2 Mich. 619; cited ; Sherman !?. Rochester R. R. Co.,
Wright V. Wilcox, 19 Wend. 343. 17 N. Y. 153 ; Chapman v. Erie R., 55
< See further, Shearm. & Redf. Neg- N. Y. 579.
ligence, 72 ; Mott ik Consumers' Ice ^ See Wilson v. Merry, L. R. 1 Sc.
Co., 73 N. Y. 543 ; Snyder v. Hannibal App. .S2B ; Felcli v. Allen, 98 Mass.
R., 60 Mo. 413. 572 ; Durgin v. Munson, 9 Allen, 396;
47 737
§492
THE DOMESTIC RELATIONS.
[part VI.
namely, that the master is responsible for the injury sustained
by a servant through the negligence or misconduct of a fellow-
servant, as for an injury committed by himself, where he was
negligent in selecting the fellow-servant, or in continuing him
in employment after that fellow-servant proved incompetent.^
It might be a question whether the master is not in such latter
cases held responsible, as substantially the party whose negli-
gence caused or contributed to the injury; if so, this principle
could be pushed still further.^
Hoben v. Burlington, &c. R. R. Co., 20
Iowa, 562.
1 Wegerv. Tenn. R. R. Co.,55Penn.
St. 460; McMahon v. Davidson, 12
Minn. 357. See Chicago, &c. R. R.
Co. V. Jackson. 55111. 492. Where the
injury to an inferior servant was caused
by the negligence of a superior ser-
vant, placed in some sort of charge by
the common master, this rule applies
as well as though they were equal and
performing the same work. Berea
Stone Co. v. Kraft, 31 Ohio St. 287 ;
Lehigh Valley Co. v. Jones, 86 Penn.
St. 432; Howells v. Landore Steel Co.,
L. R. 10 Q. B. 62. In fact, a "fellow-
servant," within the meaning of the
rule of our text, is usually understood
to be any one serving the same master,
and under his control, whether equal,
inferior, or superior to the injured per-
son in his grade or standing. Faulk-
ner V. Erie R. R. Co., 49 Barb. 324 ;
Shearm. & Redf. Negligence, 115,
Feltham v. England, L. R. 2 Q. B. 33 :
Wigmore v. Jay, 5 Excli. 854 ; Shanck
(' Northern, &c. R. R. Co., 25 Md. 462;
Murray v. Currie, L. R. 6 C. P. 24;
Mc Andrews v. Burns, 39 N. J. L. 117.
Tliough where the superior servant's
direction was outside Ins own scope of
authority, other considerations apply.
Railroad Co. v. Fort, 17 Wall. 5-53.
But in some States tliis rule of a supe-
rior " fellow-servant " appears to be
relaxed somewhat for tlie injured ser-
vant's benefit. Louisville & Nashville
R R. Co. V. Collins, 2 Duv. 114 ; Little
Miami R. R. Co. v. Stevens, 20 Ohio,
415; 86 Mo. 221; 23 S. C. 626; 33
738
Min. 311. A master who injures his
own servant cannot claim immunity as
a " fellow-servant," though joining in
the work. Ashworth v. Stanwix, 3 EI.
& El. 701 ; Wilson i-. Merry, L. R. 1
Sc. App. 326. Of course, the mere
fact that two persons are engaged in
ministering to the wants of one indi-
vidual does not make them necessarily
fellow-servants.
Where one takes the master's own
place and supervision, as " vice-princi-
pal," so to speak, liis negligence has
been deemed, in various late instances,
the negligence of the master rather
than that of a fellow-servant , as if
one should be appointed with a super-
intending control of the work, and
with power to employ and discharge
hands, and to direct and control their
movements- Stephens v Hannibal R.,
86 Mo. 221 ; 67 Wis. 24 ; 23 Fed. R.
363. But cf Reese u.Biddle, 112 Penn.
St 72, Conley i;. Portland. 78 Me 217.
Indeed, in various States the latest de-
cisions show a disposition to favor the
injured servant, by denying that ser-
vants of a corporation who are engaged
in various departments of a complex
and extensive business should be
classed as " fellow-servants " in the
present sense. And see Chicago R v.
Ross, 112 U. S. 377 where a railroad
conductor was treated as a sort of
" vice-principal " with reference to the
engineer and other train servants. See
authorities here examined.
2 See Davis v. Detroit. &c. R. R.
Co., 20 Mich. 105.
CHAP. IV.] EIGHTS, ETC., OF THE MASTER.
492
So it is held on like grounds, irrespective of the question of
fellow-servants, that a master is not liable to his servant for
any defects in the materials furnished to the latter for use in
the master's service, unless he was negligent in providing such
materials or in pointing out their defects.^ Nor for injuries
caused his servant by latent defects in the structures of em-
ployment where he had appointed suitable inspectors who
failed to discover and report them, and he received no other
information that the defects in fact existed.^ In short, ordinary
and reasonable care and diligence on his part will protect the
master from liability to his own servants ; and ordinary care is
usually presumed to exist in absence of proof to the contrary.^
But for his own culpable negligence, on the other hand, a
master is liable to his own servant as to any one else ; that is
to say, provided the servant on his part exercised ordinary care,*
and not otherwise. Though not a guarantor,^ it is incumbent
upon the master to use ordinary and reasonable care in selec-
tion of servants,^ and in the procurement of materials, and in
keeping the premises of usual employment in repair and safe
1 Sliearm. & Redf. Negligence, 103,
and cases cited ; Hayden v. Smithville,
&c. Co , 29 Conn. 548.
2 Warner v. Erie R. R. Co., 39 N. Y.
468. But see Chicago, &c. R. R. Co.
V. Jackson, 55 111. 492 ; Paulmier v.
Erie R. R. Co., 34 N. J. L. 151. Where
the master employs persons who are to
furnisii each his own tools or appli-
ances, lie is not answerable for defects
in such tools or appliances. Harkins
V. Sugar Refinery, 122 Mass. 400. But
a master is responsible for an accident
who furnishes a defective and danger-
ous appliance, by reason of which tlie
injury occurred, even though a fellow-
servant's negligence contributed to the
injury. 100 N. Y. 516.
3 Shearm. & Redf. 104 ; Roberts v.
Smith, 2 Hurl. & Nor. 213; Brydon
V. Stewart, 2 Macq. H. L. 30 ; Cayzer v.
Taylor, 10 Gray, 274; Ashworth v.
Stanwix, 3 El. & El. 701 ; Johnson
V. Bruner, 61 Penn. St. 58; Probst v.
Delamater, 100 N. Y, 266 ; 27 W. Va.
285.
* Chicago R. v. Donahue, 75 111.
106.
6 Hough V. Texas R., 100 U. S. 213.
As to facts which constitute contribu-
tory negligence on the servant's part,
see 12.3 U. S. 710.
« Oilman v. Eastern R. R. Co., 10
Allen, 233; Faulkner v. Erie R. H. Co.,
49 Barb. .324 ; Moss v. Pacific R. R. Co.,
49 Mo. 167. The English statement of
the rule is that " negligence cannot ex-
ist if tiie master does his best to employ
competent persons; he cannot warrant
the competency of his servants." Tar-
rant V. Webb, 25 Law J. n. s. C. P.
263. The master cannot delegate his
responsibility so as to divest himself of
the necessity of using ordinary care.
See Fuller v. Jewett, 80 N. Y. 46;
Mitchell V. Robinson, 80 Ind. 281. In-
toxication of the fellow-servant when
the injury occurred may be shown.
100 N. Y. 266; 85 Mo. 95. But the
burden of showing the master at fault
is on the injured party. 114 III. 244;
44 Ark. 52.
739
§492
THE DOMESTIC RELATIONS.
[part VL
condition,^ and in remedying defects which are brought to his
notice.^ But a master does not insure his servant against acci-
dents,^ nor the result of the servant's own risks or carelessness.
Peculiar terms of the employment have a bearing upon such
issues.*
The rule that a master is not responsible to one servant for
the negligence of a fellow-servant applies to the case of a person
who is injured while voluntarily assisting the servant. A guest,
a friend, a relative, any one engaged in the same common work,
comes within the principle.^ And, in general, where a danger
is obvious it is treated as incident to the employment. And
the servant who is killed or injured while encountering it must
be deemed to have assumed the risk.^
1 Ryan v. Fowler, 24 N. Y. 410;
Williams v. Clougli, 3 Hurl. & Nor. 258 ;
Buzzell V. Laconia, &.c. Co., 48 Me.
113; Allerton Packing Co. v. Egan,
86 111. 253; Fairbank v. Haentzsohe,
73 111. 236 ; 137 Mass. 204 ; 99 Ind.
188.
•■' Perry v Ricketts, 55 111. 234. And
this liability for his own negligence
would appear to apply in some cases
where a fellow-servant contributed to
the injury. Paulmier i-. Erie R. R. Co.,
34 N. J. i.. 151.
3 Flynn v. Beebe, 98 Mass. 575. per
Hoar, J. See also Marshall ?■. Stew-
art, 2 Macq. Ho. Lords, 30, 33, E. L. &
Eq. 1.
* Where the servant knows his mas-
ter's rules and violates them, it is held
that he must suffer the consequences ;
for of the reasonableness of tlie rule his
master must be the sole judge. Wol-
sey V. Lake Shore R., 33 Ohio St. 227.
It seems to the present writer, how-
ever, that if the servant showed that
he exercised ordinary care he ought to
recover, though even in the act of
transgressing an unreasonable rule of
his employer. See dissenting opinions
in Wotsey i'. Lake Shore Ji., supra. As
to warning a child or inexperienced
person against the dangers of the task
committed to him, those latent but not
those patent, see Sullivan v. India
740
Man. Co., 113 Mass. 396 ; O'Connor v.
Adams, 120 Mass. 427 ; Hill i;. Gust, 55
Ind. 45; 39 Ark. 17.
6 Deggi- Midland R.R. Co., 40 E.L.
& Eq. 376 ; Potter v. Faulkner, 1 Best
& Smith, 800; Althorf v. Wolfe, 22
N. Y. 355 ; Abraham v. Reynolds, 5
Hurl. & Nor. 143 ; Ohio, &c. R. R. Co.
?•. Hammersley, 28 Ind. 371 ; Stewart v.
Harvard College, 12 Allen, 58 ; Wash-
burn V. Nashville, &c. R. R. Co., 3
Head, 638. For the case where a ser-
vant, not aiithnri/ed to do so, gets an-
other to help him in his work, see
Jewell V. Grand Trunk R., 55 N. H.
84.
^ A servant not apparently unfit for
hazardous duties, and accepting such
an employment, takes upon lumself
the natural risks of that service.
Howd V. Miss. Central R., 50 Miss.
178; Gibson r. Erie R., 63 N. Y. 449;
Pennsvlvania R. v. Lynch, 90 III. 333 ;
Tuttle V. Detroit R.. 122 U. S. 189.
This doctrine is applied to the case of
a minor. De Graff v. N. Y. Central R.,
76 N. Y. 125. /Sec? 7U. if the minor was
obviously unfit to be employed in such
dangerous service. The mere emf)lo3'-
ment of a minor about dangerous work
without the father's consent is not in
itself culpable negligence ; though
otherwise, perhaps, in an employment
against the father's known will. Penn-
CHAP. IV.] RIGHTS, ETC., OF THE MASTER, § 494
§ 493. Master not Criminally Responsible for Servant, but
only for himself. — As a general rule, the master is not crimi-
nally liable for the acts of his servants, unless he expressly
command or personally co-operate in them. Each offender
against public justice must answer for himself.^ Where one,
however, procures innocent agents to do acts amounting to a
felony, the employer, and not the innocent agent, is held ac-
countable; for this is his own act.^ As to penalties, the rule
in this country is sometimes understood to be the same.^ Yet
penal actions in general have more the character of civil suits
than of criminal proceedings ; and, under the revenue laws,
penalties are frequently imposed upon the master.* So, again,
are masters indicted for public nuisances committed by their
servants,^ according to the English rule. Some of the proceed-
ings authorized by statute against corporations in this country
for damages caused by the negligence of their servants will be
found to contain a like principle.*^
§ 494. Final Observations on Law of Domestic Servants. —
The foregoing brief statement of doctrines concerning the law
of master and servant may suffice for the present treatise in its
limited space and scope. To enter upon the law further, or to
attempt in these pages an analysis of the numerous and conflict-
ing cases which constantly arise at the present day under what
sylvania R. y. Long, 94 Ind. 250; Texas * See Smith, Mast. & Serv. 145-
R. V. Carlton, GO Tex. SPy?. 147 ; Attorney-General v. Siddon, 1 Cr.
Where a master orders his servant &J. 220; Atcheson v. Everitt, Cowp.
to do some unusual work of a danger- 391.
ous kind, not well understood by the ^ 1 Bl. Com. 431, 432; Turberville f.
servant, he owes the latter a warning, Stampe, 1 Ld. Raym. 264.
besides furnishing suitable appliances ; ** For further discussion of the broad
but otlierwise if the danger is obvious principles underlying a master's liabil-
and the servant voluntarily takes the ity for the negligence of his servants,
risk. 105 Ind. 151 ; Tuttle v. Detroit as illustrated in the modern English
R., 122 U. S. 189. And a servant may and American cases, the reader is re-
do such work reluctantly and yet vol- ferred to such general works as Shear-
untarily. 139 Mass. 580. man and Redfield on Negligence;
1 Smith, Mast. & Serv. 143; Story, Story or Wharton on Agency, and
Agency, § 452 ; Rex v. Huggins, 2 Ld. Wood on Master anc Servant. The
Raym. 1574 ; Sloan v. State, 8 Ind. decisions which relate to domestic ser-
312. vice constitute a very small proportion
2 Reg. V. Bleasdale, 2 Car. & K. 166. of those which properly belong to this
» DeerficM v. Delano, 1 Pick. 465; head.
Goodhue v. Dix, 2 Gray, 181.
741
§ 494 THE DOMESTIC RELATIONS. [PAKT VI.
might be called the analogies of master and servant, would be
at present impossible. We trust in time to see the topic of
" master and servant " confined to its legitimate and proper
limits, as one of the domestic relations, and some new and more
comprehensive title applied to such decisions as clearly affect
mankind in the external concerns of life.
742
INDEX.
A.
Sectior
ABANDONMENT,
gives wife rights as feme sole 219
ABDUCTION,
of child 260
ACCOUNTS,
of guardian in English chancery practice 371
distinction between final and intermediate accounts . , . 372
practice in the United States 372-374, 388
items allowed the guardian 374
compensation of guardians 375
ACTIONS, — Husband and Wife.
for enticement 41
breach of marital obligations 48
mutual disability 52
on wife's antenuptial debts 57
■with reference to wife's torts 75-79, 170 n.
as to wife's separate estate 158
as to wife's separate trade 169
wife's modern right to sue, &c 170 n.
where wife is abandoned by husband 219
Parent and Child.
parent for child's services 252
per quod for child's injuries, seduction, &c 257, 260
as to illegitimate children 279, 281
as between parent and child 275
Guardian and Ward.
by or against guardian or ward in general 343 & n.
guardians sued on their bonds 376, 377
ward's suit against guardian 381
ward's action of account 382
Infancy.
suits must be brought by guardian or prochein ami .... 449
infants cannot sue by attorney or in person 449
744 INDEX.
Section
ACTIO'NS — continued,
how the prochein ami is appointed 450
his liabilities, costs, &c 450
infants must defend by guardian only 451
guardians ad litem 451
matters of practice 451, 452
chancery proceedings are similar 452
binding effect of decree or judgment upon infant .... 453
See also Master and Servant; Torts.
ADHERENCE 35
See Husband and Wife.
ADMINISTRATION,
on estate of deceased wife 196
on estate of deceased husband 204
See Death.
durante minore cetate 325
See Executor and Administrator.
ADOPTION,
of children 232, 273
ADULTERY,
effect on wife's necessaries 66
divorce for 220 &
ADVANCEMENT,
from parent to child 272
AFFINITY,
marriage disqualification of 16
AGENCY,
wife's contract; necessaries 61
of wife for husband 60, 72
of husband for wife in separate property 153-155
of wife after husband's death 212
of child 241, 446 a
of guardians 346
See Contract.
ALIENAGE,
of either spouse 39, 222 n.
ANTENUPTIAL DEBTS,
of wife, husband's liability at common law; liability only
while coverture lasts 56
where wife was infant 56
effect where wife survives husband 56
strictly legal demands; admissions by either spouse ... 57
actions ; judgment, &c 57
of antenuptial contract; special contract, &c 57
under separate use 109, 128
statute changes llli 170 n.
on death 198, 199
INDEX. 745
Section
ANTENUPTIAL SETTLEMENTS 171, 173
See Settlements-
anticipation,
clause of restraint upon 110, 129, 139
See Separate Property.
appointment,
power of, in married women 186 a
of guardians —
guardians of infants generally appointed 297
but not natural and socage guardians; authority under law . 298
testamentary guardians appointed by parent 299
what language suffices as 299
extent of power of appointment and authority 300
whether infant can appoint 301
rule as to illegitimate children 282
chancery and probate guardians judicially appointed . , . 302
what tribunal exercises jurisdiction and when 303
what person is selected as guardian 304
leading considerations 304, 305
appointment of married women and non-residents .... 306
method of appointment 307
effect of chancery or probate appointment 308
civil-law principles 309
liability after appointment, before qualification 326
APPRENTICE,
whether guardian may bind out ward 335
legislation in England and America 457
mutual rights and duties of master and apprentice . . 457 n., 487
ASSAULT AND BATTERY,
of husband or wife 48, 77
as to a child 262, 263
as to master and servant 479
AVOIDANCE. See Infants; Ratification.
B.
BANKRUPTCY,
in wife's separate trade 163, 169
as affecting voluntary settlements 186
BASTARDS 276-282
See Illegitimate Children.
BIGAMY 21
BOND, — of guardians,
English practice; receiver's duties 365
American rule as to probate and other guardians 366
liability of sureties 367
general principles applicable to bonds 367, 368
746 INDEX.
Section
BOND — continued,
suits on probate bonds 367, 368, 376
enforcement of sureties' liability 368, 376
indemnity of sureties 368, 376
special bond in sales of real estate 369
BURIAL. See Death.
C.
CHASTISEMENT,
right of, in a husband, parent, or master .... 44, 244, 467
CHATTELS REAL OF WIFE,
effect of coverture; husband's interest 87,88
his right to alienate 88
acts defeating wife's rights 88
survivorship of wife 88
CHILDREN,
consent to marriage of 30
parental custody of 47
custody of, under separation deed 218 n.
legitimate children in general 223 et seq.
See Legitimacy.
agency of child for necessaries 241
•whether there is implied authority; agency 241
agency in general transactions 241
liability for injuries 262
duties of children to parents 264
extent of obligation to maintain ; Stat. Eliz., &c 265
rights of, in general 266
right of child to his earnings ; emancipation 267
See Earnings ; Emancipation.
full-grown children remaining at home 269
gifts and transactions between parent and child . . . 270, 271
advancements ; sale of expectant estates by heir 272
legacies of children ; rights by descent and distribution . . 272
stepchildren ; quasi relation of parent and child 237, 239, 261, 273
claims against the parental estate 274
suit between child and parent 275
illegitimate children (see Illegitimate Children) . . . 276
See also Custody; Infants; Parent.
CHOSES,
of wife in possession or action 82
See Personal Property of Wife.
CIVIL LAW,
theory of marriage and property 6
as to separate trade 170
as to legitimacy 226-229
as to guardianship 292, 309, 358
INDEX. 747
Section
COERCION. See Crimes; Torts.
COLOR,
as marriage disqualification 17
COMMUNITY 7
CONCILIATION, COUNCILS OF. See Workmen .... 456
CONFLICT OF LAWS,
relative to marriage, marital property rights, and divorce 222 n.
as to domicile of child 231
as to legitimacy 231
as to ward's person 327, 328
as to v?ard"s property 329
as to age of majority 393
CONSANGUINITY,
marriage disqualification of 16
CONSTITUTION,
questions as to marriage relation 31, 114
questions under, as to legitimacy and adoption . . . 229, 232
as to acts interfering with parental rights and duties . . . 256
as to matters of guardianship 330
CONTRACT,
of wife under coverture or common-law doctrine 58
of wife, general coverture disability 58
contracts void at common law 58
disability illustrated 58
disability extends beyond death of spouse or divorce ... 59
wife hinds husband as agent ; effect of his assent or joinder ... 60
wife^s necessaries ; foundation of husband's obligation .... 61
•wife may pledge husband's credit 61
what are such 61
what are not such 61
- wife^ s necessaries : (I) living together ; or (2) separate .... 62
(1) presumption from cohabitation ; husband's permission . 63
wife's agency controlled by fact of husband's supply ... 63
wife's unauthorized purchase may be ratified; assent and
dissent . 64
wife's necessaries supplied upon wife's or third person's credit 64
wife's necessaries where husband neglects to supply .... 65
(2) where spouses live apart 66
wife's reasons for leaving husband; return 66
where spouses live apart and wife commits adultery .... 66
wife's necessaries; effect of receiving wife back 67
when spouses live apart, binding wife herself .... 67
one spouse being in asylum or prison 67
in case of voluntary separation; allowance 68
legalized separation, and alimony 68
presumptions when spouses live apart; rule of good faith 69
modern rule summed up 70
748 INDEX.
Edction
CONTRACT — continued,
marriage reputed or de facto 71
where one spouse is a minor 71
family necessaries ; children; relatives 71
wife's necessaries; parental claims 71
wife's own claims for necessaries; raising fmids, &c. ... 71
wife's necessaries; leading elements; partial claims ... 71
wife's (jeneral agency for her husband 72
ratification, &c 72
effect of creditor's marriage with debtor 73
changes under married women^s acts 170 n.
general transactions between husband and wife 191
See Husband and Wife.
of wife after husband's death 212
See Death.
transferring parental rights 251
of guardian for his ward 509
CONVERSION,
of ward's estate 347, 355
CONVEYANCE,
of wife's lands 90, 94
husband's joinder 133, 150
from one spouse to another 192
to husband and wife; its effect • 193
See Real Estate of Wife.
COVERTURE,
general principles of old law 4-10
affecting private wrongs and public wrongs 49
general inequalities of old law staled 54
what each spouse yields as to property 54
husband's liability for wife's contracts ; wife's immunity . . 54
wife's immunity, &c., as to torts , 54
when wife is treated as/eme sole 55
husband liable for wife's antenuptial debts 56, 57
See Antenuptial Debts.
wife's disability to contract 58
See Contract.
effect upon wife's injuries, and frauds committed upon or by
her 74
See Touts.
effect upon wife's personal property 80 e< seq.
See Personal Property op Wife.
effect upon wife's chattels real, leases, &c 87, 88
See Chattels Real of Wife.
effect upon wife's real estate 89-99
See Real Estate of Wife.
INDEX. 749
Section
CRIMES,
of husband or wife ; coercion, &c 49
against property 51
of one spouse affecting the other 170 n.
of parent 244
of infant 395
infant as criminal prosecutor; crimes against infants . . . 396
of servant 484, 493
CRIMINAL INTERCOURSE. See Seduction 41
CRUELTY 44, 220 6, 244
CURTESY,
its nature and incidents 201, 202
CUSTODY,
of children, common-law rule 47, 245
mother's rights disregarded at common law .... 245, 333
chancery jurisdiction; common law overruled 246
on what grounds the English chancery court interferes . . 246
common-law courts interfere on habeas corpus 246 n.
Justice Talfourd's act; English rule 247
doctrine of custody in the United States 248
child's welfare the primary object 248
custody under divorce and other statutes 249
child's wishes sometimes regarded 250
agreements to transfer custody 251
guardian's right of custody 332, 333
D.
DEATH,
of spouse, effect on wife's antenuptial debts 56
as to wife's contract disability 59
survival of action for damages to wife 77
effect upon wife's personal property 80
coverture; effect on wife's chattels real ; survivorship . . 87, 88
coverture ; effect on wife's real estate 89, 96
effect on wife's separate estate 107
affecting continuance of separate estate 107, 127
widowhood and remarriage as to separate use .... 107, 127
survivor's rights controlled by antenuptial settlement . . 183 n.
dissolution of marriofje relation b>/ : (1) husband as survivor.
husband's common-law right to administer 196
purposes of husband's administration ; assets for his creditors 197
husband's survivorship affecting wife's personalty .... 198
administration for his own benefit 198
husband bound to bury wife; his wishes respected .... 199
husband's personal liability for deceased wife's debts, &c. . 199
death pending settlement of deceased wife's estate 200
death of female administratrix leaving a husband .... 200
750 INDEX.
Sectioh
DEATH — continued,
husband's freehold by marriage in wife's real estate . . . 201
husband's enlarged freehold as tenant by curtesy .... 202
abatement of real-estate suits by death 203
surviving husband's claims against wife's real estate . . . 203
(2) wife as survivor.
widow's rights of administration 204
distributive share 205
waiver of provision under husband's will .... 206
allowance 207
paraphernalia 208
wife's letters belong to her 208 n.
widow's equity of redemption of mortgage 209
exoneration 209
controversies with administrator 210
right and duty to bury husband 211
wife's agency for husband after his death 212
rights in deceased husband's real estate 213
dower and curtesy compared 213
homestead system 214
simultaneous death of husband and wife; ownership of fund 214 a
wills of married women 203 n.
effect of divorce 221, 222
of minor child ; funeral expenses 242 a
of parent: child's inheritance 272,277
of ward or guardian 312, 314
of ward's funeral expenses 337 n.
DEBT. See Antenuptial Debts: Contract.
DESERTION,
as a breach of the duty of spouses 36
as cause for divorce 220 h
DIVORCE,
in connection with annulling marriage 19
impediments following 22
effect on wife's contract disability 59
costs, fees, &c., whether necessaries 61
as to wife's necessaries 68
effect upon husband's suit for loss of wife's services ... 77
effect upon wife's personal property 80
effect on wife's real estate and coverture rights .... 89, 96
whether separation deed bars 218 n.
divorce legislation in general 48, 220
from bed and board ; from matrimony 220 a
causes: adultery; cruelty; desertion; miscellaneous . . 220 b
effect of absolute divorce upon property rights 221
effect of partial divorce upon property rights 222
conflict of laws in divorce 222 n.
as to children 227 a, 237, 239, 364
INDEX. 751
Skction
DOMESTIC RELATIONS,
defined and classified Ij 2
its leading topics 1> 2
classification by other -writers 1
antiquity of the law 3
its supremacy ^
universal in its scope ^
See Husband and Wife; Guardianship; Master and Servant;
Parent and Child.
DOMICILE,
assigned by law to every one 3
the matrimonial 37
relative to alien and citizen 39
in conflict of laws 222 n.
of children 230
guardian's right to change it 334
See Conflict of Laws.
DOWER,
its nature and incidents 213
guardian may assign ward's dower 350
DRUNKENNESS (or INTOXICATION),
marriage disqualification of 18
E
EARNINGS,
of wife at common law , 81
under modern equity and statutes 162
ruje with statutory changes 162
apart from statute 162
gift of, in wife's favor 162
where husband deserts or neglects 162
of minor children belong to parent 252
the rule limited in practice 252 a
parent may sue for earnings 252
may relinquish right 252 a
prize-money, pay, seaman's wages, &c 252 a
mother's rights to child's services and earnings 254
of ivard do not belong to guardian 335
of infant ; his contract of service construed 421
whether money is due when infant avoids it 421
of servant 472, 488
See Emancipation ; Pin-money ; Trade.
EDUCATION,
parents should educate children 235
questions under father's will; religious education .... 235
jurisdiction and practice of chancery in such matters . . . 235
752 INDEX.
SEcnoN
EDUCATION — continued,
parent's right where child is excluded from school .... 235
as to guardian and ward 340
as to master and servant 467
ELECTION 379
See Ward.
EMANCIPATION,
of children by the parent 253, 267
how emancipation is effected 267 a
by indenture and parol 267 a
emancipation must be proved 267 a
emancipation by abandonment or marriage .... 260, 267 a
effect of emancipation 268
earnings of child then belong to him 268
emancipation on arriving at full age 269
full-grown children may remain at home 269, 421
their rights and duties in such case 269
legislative emancipation 392
ENLISTMENT,
infant's contract 419
ENTICEMENT,
of wife 41
of child 260
of servant 487
EQUITY, WIFE'S
to settlement 85
EQUITY,
modifying coverture 100 et seq-
See Separate Property.
EVIDENCE,
husband and wife disqualified as witnesses 53
exceptions to rule 53
capacity of infants to testify 398
servants may be witnesses 480
EXECUTOR AND ADMINISTRATOR,
wife as executrix, &c ' . 86
husband of female executrix, &c 86
EXONERATION. See Death.
wife's right 209
F.
FATHER. See Parent.
FORCE,
in marriage 23, 24
FRAUD,
in marriage 23, 24, 76, 77, 183
See Torts.
INDEX. 753
Section
FRAUDS, STATUTE OF,
as to settlements 172, 179
applied to guardian's promise 345
applied to contract of hiring a servant 459
G.
GIFTS,
in restraint of marriage 32
to husband or wife, or both 189, 193 n.
between husband and wife, or postnuptial settlements . . . 184
to child 255
between parent and child 270
See Guardian; Infants; Settlements.
GOVERNMENT,
not liable for torts of servants 483
GUARDIAN. (See Guardianship.)
consent of, to marriage 30
marriage with female guardian, its effect 86, 326
effect of female guardian's marriage 318
rights and duties of socage guardian 320
rights and duties of testamentary guardian 320
nature of guardian's estate; whether a trustee 321
authority over person and estate 320
chancery and probate control of ward's property contrasted . 323
joint guardians 322
guardian holding other trusts . 324, 373
cannot blend distinct trust 324
where legacy is left to an infant 324
administrator durante minoTe cetate 325
quasi guardianship where no regular appointment .... 326
rights as to ward's person 331
guardian's right of custody 332, 333
rule as between guardian and parent; mother's rights . 332, 333
whether guardian may change ward's domicile 334
or carry ward beyond the jurisdiction 334
guardian cannot claim ward's personal services 335
other rights relating to ward's person 335
duties as to ivanPs person 336
general rule of protection, education, and maintenance . . 337
guardian not bound to expend his own fortunes 337
when he incurs personal liability 337
appropriation of ward's property for his support .... 337
when income may be exceeded 338
allowance to parent for ward's support .... . . 339
maintenance in chancery 338, 339
guardian's right to control ward's education 340
48
754 INDEX.
Section
GUARDIAN — continued,
yiglits and duties as to ward\t estate 341
general rules of management 341, 342
right to sue and arbitrate % . . . . 343
guardian cannot bind ward by contract 344
but may be reimbursed from ward's estate 344
title to promissory notes, &c 345
application of statute of frauds to guardian's contract . . . 345
agents or attorneys employed by guardian 346
changes in character of ward's property; sales, exchanges, &c. 347
conversions of property not favored 347
but practical conversion sometimes takes place 347
sales, exchanges, mortgages, &c 347
unauthorized acts are at guardian's peril 348
limit of guardian's responsibility 348
he must not derive undue advantage 349
limit of guardian's liability 349
duties as to ward's real estate; rents, leases, &c 350
authority over real estate limited; easements, dower, &c. 350, 351
right to mortgage, execute deeds, &c 351
duties as to personal estate 352
must secure property, collect debts, deposit, &c 352
whether guardian may pledge 352 a
investment of ward's funds 353
when guardian is chargeable with intei'est 354
speculations with ward's money 354
sales of ward's personal estate 347, 355
sales of ward's real estate 347, 351, 356-363
sales of lands under American statutes; essentials, &c. . 359-363
mortgage of lands under statutes, &c 361 a
guardian's own sale not binding; usually sale must be public 364
criminal responsibility 381
his bond, inventory, and accounts 365-377
dealings with his ward ; settlement, &c 378-390
See Accounts; Bond; Inventory; Ward. And see Guardianship.
GUARDIAN AD LITEM,
in suits against infants 296, 449, 451
GUARDIANSHIP,
in general 2, 11, 283, 320
defined; applied to person and estate 283
ancient species of guardianship 284
by nature and nurture 285, 290
in socage 286, 290
testamentary guardianship 287, 290
chancery guardianship 288, 291
by infant's election 289
probate guardianship 291
atcivillaw 292
INDEX. "^^^
Section
GUARDIANSHIP — continued, ^^^
of illegitimate children 283, 293,' 379, 380
of insane persons ^ ^93, 379, 380
of spendthrifts 294
of married women 2^.
for special purposes * '^^^ ^.^
guardians ad litem ' ' i. * " ' -^or
quasi relation established where no appointment . • • • ff
conflictof laws; ward's person or property 330
constitutional questions * " ' '
See Appointment; Guardian; Termination; Ward.
H.
HABEAS CORPUS, ^g
as to husband and wife • ^^^
as to custody of child " ' " .
214
HOMESTEAD '
HOUSEKEEPING-ALLOWANCE 1^^
See Separate Property.
HUSBAND AND WIFE,
general remarks as to systems of legislation, &c * i_^
outline of examination • ', I ' ' r '^'
person of the spouse; coverture doctrine; husband head of
family '„_
duty of spouses to adhere or live together • -^o
breach by desertion, &c.; duty of making cohabitation toler-
, , 36
able „_
the matrimonial domicile
husband's right to establish the domicile ^»
domicile relative to alien and citizen 39
woman's name changed by marriage _ • 40
right of one spouse to the other's society; suit for entice-
ment .^
husband's duty to render support *-
wife's duty to render services . ^ *^
right of chastisement and correction **
husband's right of gentle restraint *^
regulation of household, visitors, &c ^
custody of children .■■.■, I ,•*
remedies against one another for breach of matrimonial obli-
gations ._
right of divorce, indictment, &c *°
coverture affecting public tcrongs and private strongs ••.•••
spouse as a criminal; presumption of husband's coerciory and
wife's innocence
ofiences against the property of either spouse ol
756 INDEX.
SEcnoN
HUSBAND AND ^ylFE — continued,
general rights and disabilities of the spouses^
coverture and mutual disabilities 52
mutual disability to contract, sue, &c 52
mutual disqualification as witnesses 53
See COVKRTURE.
equity and late legislative changes 100-102
See Married Women's Acts; Separate Property.
prevalent tendency to equalize the sexes 100-102
settlements and transactions between husband and wife 171, 184
See Settlements.
general contracts between 191
husband as borrower from wife 191
promissory note from one spouse to the other 192
conveyance from one spouse to another; lease, &c 192
of lands to husband and wife 193
promissory note or security payable to husband and wife . . 193
gift, &c., to husband and wife; their joint deposit or invest-
ment 192, 193 n.
resulting trust as to fund in husband's or wife's favor . . . 194
equitable relief for fraud, &c., of one upon the other . . . 194
insurance on husband's life for wife's benefit 195
dissolution of marriage relation by death ; rights and duties
of survivor 196, 204
See Death.
wills of married women 203 n.
effect of divorce upon property rights 221,222
See Separation; Divorce.
conflict of laws as to marital rights 222 n.
wife as guardian 306
I.
ILLEGITIMATE CHILDREN,
rights and disabilities in general; their peculiar footing . . 276
disability of inheritance 277
common-law and civil-law doctrines 277
inheritance permitted in the United States 277
preference as between mother and father . 278
putative father's right of custody 278
statutes affecting the subject 278
whether putative father must maintain 279
seduction may support promise to mother ....... 279
general rights of action as to such ciiildren 280
persons in loco parentis ; distant relatives 2S0
bequests to illegitimate children 281
extent of doctrine in England and America 281
guardianship of illegitimate child 282, 298
INDEX. 757
Section
IMPOTENCE,
as marriage disqualification 19
INFANCY,
in general; classification 2
considered as impediment to marriage 20, 30
See Infants.
as to antenuptial debts 56
as applied to wife's necessaries 71
conveyance of lands 96, 447
And see Guardianship.
INFANTS,
husband bound as adult 69, 74, 87
election of guardian 289, 301
election of ward 379
guardian sometimes holds infant's legacy 324
or administers in his stead 325 -
sale of infant's lands; statute provisions 356-363
when the age of majority is reached 391
general incapacity to contract 392
growing capacity during non-age 880, 392
legislative relief from non-age 392
conflict of laws as to the true age of majority 393
right of infant to hold office and perform official functions 394, 416
responsibility for crimes 395
infant's criminal complaint; infant as prosecutor .... 396
wills of infants 397
testimony of infants 398
their marriage settlements . 399
their exercise of a power 399 a
acts void and voidable 400
general doctrine of binding acts and contracts 400
test of void and voidable contracts 401
privilege of avoiding not extended to others 402
modern tendency to regard all acts as voidable only; instances 403
acts and contracts excepted as void 403
bonds, notes, &c. ; voidable purchase 404, 405
deeds, leases, exchanges, &c.; rule of Zouch v. Parsons . . 405
letters of attorney, cognovits, &c 406
miscellaneous voidable acts and contracts 407
infant shareholder's liability 407
gifts of infant 407
infant's trading and partnership contracts 408
summary of doctrine as to void and voidable 409
usual period of ratification, that of majority 409
disaffirmance of contracts during minority 409
acts binding upon the infant 410
general principle of binding acts 410
contracts for necessaries 411
See Necessaries.
758 INDEX.
Section
INFANTS — continued,
contracts relative to marriage state 415
infant's acts which do not touch his interest; where trustee,
officer, &c 416
infant shareholders and defendants in equity 417
acts which the law would have compelled 418
infant's contract of enlistment ; contracts binding because of
statute 419
indentures of apprenticeship 419
infant's recognizance on criminal charge .... 404 n., 420
contracts of service construed ; whether binding 421
whether compensation is due when infant avoids 421
injuries and frauds of infants 422-431
See Torts.
ratification and avoidance of acts and contracts . . . 432-448
See Ratification.
actions by and against 449-451
chancery practice relative to infants 452
binding effect of decree or judgment upon infant .... 453
See Actions. See also Childken; Domicile; Guardian.
INJURIES. See Torts.
INSANE PERSONS,
disqualification for marriage 18
See Guardianship.
INSURANCE,
of husband's life for wife's benefit 195, 198 n.
of parent on child's life 253
INTEREST 354, 374
See Guardian.
INVENTORY,
of ward's estate to be filed by guardian 370
INVESTMENT 353
See Guardian.
JOINT GUARDIANS 322, 350, 368
See Guardian.
JOINT TENANCY 98, 193
LEASE 88, 90, 133, 150, 192, 350
See Chattels Real; Guardian; Real Estate.
LEGACY. See Personal Property.
INDEX. 759
SXOTION
LEGITIMACY,
definition 224
presumption of legitimacy 225
legitimation of illicit offspring by subsequent marriage 226, 227
status of children born after divorce 227 a
doctrine in njarriages null, but fiona fide contracted . . . 228
legitimation by sovereign or legislative acts 229
conflict of laws as to legitimacy 231
See Illegitimatk Children.
LETTERS,
of husband, wife's title 208 n.
as basis of marriage settlement 177
LIFE ESTATE,
of wife, affected by coverture 98
M.
MAINTENANCE,
nature and definition; wife and children 42,236
how far the parental duty extends at common law .... 237
statute 43 Eliz. applied, &c 237
maintenance of stepchildren 237, 273
children of separated or divorced parents 237, 239
maintenance ordered in chancery 238
circumstances considered by the court of chancery .... 238
father unable to support fully, &c 238
rule applied to mother 109, 239
restriction applied to maintenance; past maintenance . 238,239
rules in chancery, income, fund, &c 239
of illegitimate children 279
rule applied to guardian 337-339, 374
See Necessaries.
MAJORITY. See Infants.
MARRIAGE,
its primitive institution, &c 9, 10
general conclusions as to marital relation 10
definition of 12
more than a civil contract; an institution 13
void and voidable; nullity 14,228
essentials of 15
disqualification of blood; consanguinity and affinity ... 16
civil condition; race, color, &c 17
religion 17 n.
mental capacity ; insane persons, &c 18
drunkenness; deaf and dumb persons, &c 18
physical capacity of parties ; impotence . . .■ 19
disqualification of infancy 20, 415
760 INDEX.
Section
MARRIAGE — continued,
prior marriage undissolved; polygamy; bigamy 21
impediments following divorce 22
force, fraud, and error; concealment of unchastity, isc. , 23, 21
essential of marriage celebration 25
perfect and imperfect consent 25
informal marriage ; words of present and future promise, &c. 26, 27
formal marriage; regular celebration by clergyman, &c. . 28, 29
consent of parents and guardians 30
legalizing defective marriages; legislative marriage . ... 31
restraint of, in trusts, &c 32
change of woman's name by 40
reputed or de fuclo, as to wife's necessaries 71
of creditor and debtor ; effect on debt 73
■with executrix or female guardian, effect 86
conflict of laws 222 n.
of child against parent's consent, effect of 260
emancipation by marriage 267
effect upon guardianship of infant 313
of female guardian, effect 306, 318
of ward in chancery 390
MARRIAGE AND DIVORCE,
scope of expression 2
See Divouce; Marriage.
MARRIED WOMEN'S ACTS,
Roman and civil law experience 6
modern property rights in America and England .... 6, 8
legislative changes in general; how to be studied . . . 99-102
scope and defects of legislation 101
equitable and statutory separate estate 102
in England,
married women's acts of 1870, 1882, &c Ill
in the United Stales,
origin of our modern married women's acts .... 112, 113
New York married women's act of 1848 113
early acts of Pennsylvania and other States 113
revolution in marital rights 113
summary of statute changes 113 n.
their scope to extend rather than limit 114
constitutional points; retrospective operation, &c 114
as to antenuptial property and acquisitions from third persons 1 1 5
change of investment ; increase and profits ; purchase, &c. 116
method of transfer from third parties under these acts . . . 117
acquisitions from husband not so much favored 118
wife's right to bestow upon husband 118
husband's control; mixing wife's property or keeping it dis-
tinct . 119
husband as trustee or agent 120
INDEX. 761
Section
MARRIED WOMEN'S ACTS — continued,
presumptions as to separate property 120 a
schedule or inventory as proof of title 121
statutory separate property and equitable separate property
compared 122 et seq.
See Separate Property.
American rule,
wife's dominion under married women's acts 142
New York rule as to suretyship 143
rule of other States whei-e charge is not beneficial .... 143
combined tests as to benefit and express intention .... 144
separate property bound for family necessaries, &c. . . 144 a
whether wife may bind as surety or guarantor 145
inquiiy into consideration ; promissory notes, bonds, &c. . . 146
equity charges on general as well as specific property . . . 147
wife's executory promise, whether chargeable; purchase on
credit, &c. 148
wife's ownership of stock; dominion and liability . . . . 149
liability for professional services 149
joinder of husband in contracts and conveyances 150
wife's liability on covenants 150
lease of wife's separate lands ]50
statutory restraints upon alienation 150 a
improvements, repairs, &c., on wife's land; mechanics' liens 151
mortgage of separate real estate 152
husband as managing agent of wife 153
husband's compensation as managing agent 154
husband as managing agent; fraud on his creditors . . , . 154
husband's fraud upon wife as to her separate property ; her
title protected 155
husband's use of wife's income, gift, &c 155
married woman as trustee 156
statutes tending to treat wife like a single woman as to
property 157
estoppel as to wife with separate property 157
proceedings for charging separate estate with debts . . . . 158
practice in such suits 158
suing and being sued as a single woman 158
promise of third person to pay a maiTied woman's debt . 158 a
English property acts of 1870, 1882; wife's disposition . . . 159
earnings of wife 162
trade, separate 163 et seq.
See Trade.
general changes in coverture doctrines 170 n.
as to wife's antenuptial debts 170 n.
as to wife's disability to contract 170 n.
as to necessaries of wife and family 170 n.
torts committed by wife 170 n.
torts committed upon the wife 170 n.
762 INDEX.
Section
MARRIED WOMEN'S ACTS — co7itmued,
torts and crimes by one spouse affecting the other . . . 170 n.
changes concerning the wife's property 170 n.
equity to settlement . . . 170 n.
wife's right to sue, submit to arbitration, &c 170 n.
general conclusions 170 n.
general transactions between husband and wife .... 170 n.
guardianship of wife, under 294
See Husband and Wife.
MASTER,
obligations as to discipline, education, &c 467
duty to furnish necessaries 468
whether he must find work 469
must indemnify servant 470
duty to receive into service the person engaged 471
remedies against master for breach of contract . . . 471, 472
obligation to pay wages 472
apportionment and quantum yneruit ; offsets, &c 473
wages: effect of change of contract, excuse by act of God,
justifiable termination, &c 474
whei'e termination is by mutual consent, conditions, &c. . . 475
representations as to servant's character, guaranty, &c. . . 476
general rights of master,
right to protect and defend 479
right of action for injuries to servant 486
seduction, enticing away, and harboring 487
right to servant's acquisitions ; how far respected .... 488
general liabilities of master,
bound by servant's acts and contracts as agent 489
application of rule to contracts 489
agents, general and special 489
civil liability for servant's torts 490
not for acts wanton and beyond scope of employment . . . 490
limitations of rule 491
not liable to servant for tort of fellow-servant 492
but liable for his own negligence' 492
who are servants and fellow-servants 492
not criminally responsible for servant's misconduct, but only
for his own 493
See Servant.
MASTER AND SERVANT,
nature and origin of the relation 2, 454
limitations of the subject 254, 461
rule of classification 455
final observations on this topic 494
See Apprentice; Master; Servant; Workmen.
MORTGAGE,
of wife's lands 91, 94
INDEX. 763
Section
MORTGAGE — continued,
by wife for husband's debts 137, 152
of wife's separate lands 137, 152
wife's equity of redemption 209
exoneration 209
by guardian, of ward's property 347, 351, 361 a
MOTHER. See Parent.
N.
NAME,
wife's by marriage 40
NECESSARIES,
of iv!fe 61-71
under equity and modern legislation . . . 109, 128, 144 a, 170 n.
See Contract.
of children 241, 255 a, 269, 337, 411
whetlier child may bind parent 241
whether child must supply parent 265
whether guardian must supply ward 337, 374
leading principles as to infants 411
what are classed as necessaries for an infant 41 1
question, one of mixed law and fact 412, 413
education, house-repairs, legal expenses 412
trading contracts not included 412
limitation of liability for necessaries .... 255 a, 413, 414 a
money advanced for necessaries 414
infant's bond, note, &c., for necessaries 414
of a servant, and master's liability 617
NEGLIGENCE. See Torts.
NULLITY,
of marriage, suits for 14
P.
PARAPHERNALIA 208
PARENT,
consent of, in marriage 30
rule as to family necessaries 71
See Children; Infancy.
duties in general.
leading duties to children enumerated 233
duty of protection 234
duty of education 235
See Education.
duty of maintenance 236, 338
See Maintenance.
764 INDEX.
Section
PARENT — continued,
duty to provide profession or trade 242
liability for ruiuor child's burial 242 a
rights in general,
general authority of the parent 243
right of chastisement; indictment for cruelty .... 244,332
right of custody . 245
See Custody.
right to child's labor and services 252
See Earnings.
right to clothing, money, and other effects 253
mother's rights to child's services and earnings 254
no right to child's general property 255
how far legislature may interfere wich parents' rights and duties 256
rights as to child's injuries 257
See Torts.
liabilities as to child's torts 263
See Torts.
transactions between parent and child 270, 271
rule of advancements ; expectant estates 272-275
legacies to children; descent and distribution .... 272-275
claims of child upon estate 274
suits between parent and child 275
PARENT AND CHILD,
nature of the relation 11, 223
See Children; Illegitimate Children; Legitimacy; Parent.
PERSONAL PROPERTY,
of wife: coverture or common-law doctrine.
marriage a gift to husband 80
extent of gift considered ; effect of divorce, &c 80
earnings of wife vest in husband 81
■wife's personal property in possession, or corporeal personalty 82
incorporeal personal property, or chases in action,
reduction by husband requisite 83
what are the wife's chases in action 83
money rights or claims 83
chases in action, &c., what constitutes reduction into possession 84
wife's equity to settlement, where chancery is sought ... 85
modern changes ; married women's acts 170 n.
See Separate Property.
of child 255, 281
of ward 352-354, 355
PIN-MONEY 160
See Separate Property.
POLYGAMY 21
See Marriage.
PORTIONS 183 n.
See Settlements.
INDEX.
765
Section
POSTNUPTIAL SETTLEMENTS 1»4
See Settlements-
presumption,
of wife's coercion by husband 49, 7o
in wife's necessaries "'^' "^
as to ownership ; wife's separate property 120 a
of legitimacy """^
PROCHEIN AMI,
in suits by infants *'*^
PROTECTION 234
R.
RATIFICATION, , . ^ aoc,
of voidable acts and contracts ; infants may ratify or disaffirm 4dJ
Lord Tenterden's act construed 433
other statutes on this point 433
American doctrine of ratification independent of statute . . 434
conflicting decisions ; instances 434, 435
whether acknowledgment of debt suffices ; conflicting dicla . 436
summary of American doctrine 437
express repudiation and disaffirmance 437
ratification as to real estate; his conveyance; lease; mort-
gage, &c 438,439
whether entry upon the land is necessary 440
rule as to an infant's purchases 441
executory contracts, &c., voidable during infancy; how af-
firmed or disaffirmed 44-
rule applied to infant's contract of service ....... 443
parents, guardians, &c., cannot render contract obligatory on
infant
444
miscellaneous points in ratification ; new promise; knowledge
of rights : • . • *^^
whether infant must place other party in statu quo if dis-
affirming 44d
by intervention of agent 446 a
ratification, &c., as to infant married woman 447
how far chancery may elect for the infant 448
REAL ESTATE,
of wife ; effect of coverture,
greneral rule; husband's freehold 89
curtesy 89,201,202
husband's interest, how lost 89
where no life interest is acquired by him . 89
husband's right to convey or lease 90
I. Q1
mortgage *"■
dissent to purchase 92
766 INDEX.
Section
REAL ESTATE — continued,
waste, conversion, &c 92
agreement to convey 93
wife's agreement to convey, and her conveyance 94
mortgage 94
statute formalities, &c., in conveyance 94
in mortgage 94
covenants in statute conveyance, mortgage, &c 95
conveyance, &c., of infant wife's lands 96
estoppel applied; general lands and separate lands distin-
guished 97
wife's life estate; husband's interest; joint tenancy, &c. . . 98
husband's freehold interest in land, not devisable .... 99
equitable conveyance of wife's separate 133
encumbrance by mortgage, &c 137, 152
changes by married women's acts 170 n.
See Separate Property ; Death.
of child 255
of infant ward : how sold, mortgaged, &c. 347, 350, 351, 356-363, 369
REDUCTION INTO POSSESSION,
under coverture doctrine 84
See Personal Property of Wife.
RELIGION, ■
marriage disqualification of 17 n.
See Education.
RESTITUTION,
of conjugal rights; suit for 218 n.
S.
SEDUCTION,
marriage of seducer and seduced 23, 24
of wife 41
of child 261
of ward 335
of servant 261,487
See Illegitimate Children.
SEPARATE PROPERTY,
of married women, its nature and creation 6
prevalent tendency to equalize the sexes 100
wife's consideration promoted; idea of domestic government
weakened 101
separate property of wife in general 102
equitable and statutory separate estate 102
English chancer?/ doctrine,
origin and nature of separate estate in English chancery . . 103
whether appointment of trustee is needful 103
INDEX. 767
Section
SEPARATE TROVEKTY — continued,
coverture applies prima facie ; how separate estate is created 106
admission of, by suit, &c., by husband 105
separate use binds produce of fund 106
continues only during marriage state ; exceptions 107
husband's rights on wife's decease 107
separate use may be ambulatory ; case of marriage ; widow-
hood ; remarriage 107
wife's power to renounce 108
husband's disposition to bona fide purchasers 108
whether affects husband's obligations 109
clause of restraint upon anticipation 110
separate use in common-law courts; English legislation . . Ill
See Married Women's Acts.
American doctrine^
in general; equity and legislation 112
American equity doctrine,
statutory separate property and equitable separate property . 122
American equity doctrines borrowed from England .... 123
whether trustee need be appointed 123
creation of separate use in equity ; what words and acts suffice 124
acquisition by contract; produce and income ...... 125
as to preserving identity of wife's separate funds .... 126
separate use continues only during marriage state 127
ambulatory operation ; widowhood; remarriage 127
whether husband's obligations are affected 128
restraint upon anticipation 129
Wife^s dominion over, ^c,
general principle of wife's dominion 130
unless restrained, wife takes with power to dispose .... 131
same principle applies to income, profits, &c 132
technical difficulties as to real estate 133
English doctrine of liability of separate estate . . . 134 et seq.
liability for wife's engagements 134
latest English modification of rule 135
liability in England; engagements not beneficial . . . 135
liability for engagements, &c. ; American rule 136
property with power of appointment 136 a
wife's right to bestow on husband, bind for his debts, &c. . 137
concurrence of trustees in wife's disposition 138
as to precluding wife's dominion 139
wife's participation in breach of trust; husband's misconduct 140
income from separate estate to husband; arrears 141
See Married Women's Acts.
wife's pin-money; nature and incidents ........ 160
housekeeping allowance 161
earnings 162
See Earnings.
768 INDEX.
SEcnoN
SEPARATE FROVERTY — continued,
separate trade 163 et seq.
See Trade.
resulting trust as to fund in husband's or wife's favor . . , 194
See Husband and Wife; Settlements.
purchasing spouse's property on sheriff's, &c., sale .... 194
equitable relief for fraud 194
insurance for wife's benefit 195
rights after death 196, 203 n., 204
SEPARATIOX,
wife, when treated as feme sole 55
deed and expenses, whether necessaries 61
rule as to wife's necessaries 62, 66 et seq.
effect upon husband's suit for loss of wife's services .... 77
effect on wife's real estate and coverture rights 89
in general 215
deeds of, their history in England 215, 216
in the United States 217
intervention of trustee 218
what covenants upheld 218
latest English docti'ine upholds deed 218 n.
custody and maintenance of offspring under . . . 218 n., 239
whether deed bars restitution of conjugal rights .... 218 n.
specific performance of covenant to separate 218 n.
separate maintenance from unfaithful husband 219
abandonment; wife's right to earn, contract, &c 219
SERVANT,
relation arises upon the hiring 458, 461
the contract of hiring 458
distinction between menial and other servants 458
contract affected by statute of frauds 459
in restraint of trade 460
contracts for life ; oppressive length of term 460
creating the relation of service: jwasi servants 461
service and agency 461
how contract is terminated 462
withdrawal or resignation 462, 463
causes of discharge, &c 462, 463
termination of service by mutual consent 464
special terms of service, &c 464
servant does not occupy premises as tenant 465
servant's right to wages; his own property 472,488
liahiliti.es as to master,
boimd to perform engagement 477
accountability to master; negligence, unskilfulness, &c. . . 478
battery in defence of master 479
he may be a witness for his master 480
INDEX. 769
Section
ons . . 481
482
482
482
483
484
SERVANT — continued,
liabilities as to third persons,
not personally liable on contract for master; excepti
otherwise in case of fraud and corruption . .
liability for his torts
misfeasance and nonfeasance
government and its servants; public officers
servant criminally accountable
See Master.
SETTLEMENT,
■wife's equity to °^
SETTLEMENTS, MARRIAGE,
nature of antenuptial and postnuptial 171
promises to marry and promises in consideration of marriage 172
effect of divorce upon 221
I. Antenuptial : effect on wife's debts dum sola 57
marriage here a supporting consideration 173
extent of support; consideration as to coUatei-al parties, &c. . 174
settlement good in pursuance of agreement before marriage . 175
form of settlement ; liberal effect to intent 175,176
marriage articles ; letters preliminary to deed 177
settlement by father, or other third party 177
statute of frauds; promises " in consideration of marriage " 172,
179
authenticity of settlement must be established 180
whether trustee must be designated; trustee's concurrence . 180
secret transfer ; fraud of intended spouse 181
reforming settlements framed on articles 182
portions and provisions for children, &c 183
mistakes, fraud, improvidence, &c., in settlement . . . 183 n.
construction of, intent upheld 183 n.
clauses barring rights of survivor 183 n. , 198 n.
covenant to settle after-acquired property 183 ra.
in United States; registry and other statutory provisions . 183 n.
rescission or avoidance 183 a
IL Postnuptial : distinguished from antenuptial 184
binding upon parties ; otherwise as to creditors, &c. . . . 184
English statutes, 13 & 27 Eliz ; 185
effect of 13 Eliz. as to creditors ; English rule 186
American rule 186
effect of bankrupt acts 186
27 Eliz. as to purchasers ; English doctrine . . 187
American doctrine . . . 187
valuable consideration sustains against creditors, &c. . . . 188
statutory requirements; registry, &c 188 n.
as between the spouses,
voluntary conveyance or gift good against grantor or donor . 189
effect of mere promise or assignment; declaration of trust . 189
49
770 INDEX.
Section
SETTLEMENTS, MARRIAGE — continued,
husband's voluntary conveyance to wife sustained .... 189
gift or settlement ; instances 189 n.
husband's transfer not intending a gift 190
gift or conveyance ; wife to husband 190
postnuptial settlement or transfer upon consideration . . . 190
trustees in postnuptial settlements 190
III. Seitlements of Infants 390, 399
SPENDTHRIFTS. See Guardianship.
SPOUSE. See Husband and Wife.
STEP-CHILDREN,
rights and liabilities 237, 239, 261, 273
SURVIVORSHIP 88
See Death.
T.
TERMINATION,
of guardianship in general 310
its natural expiration as to minors, ward of age, &c. . . . 311
as to insane persons and spendthrifts 311
death of the ward 312
marriage of the ward 313
death of the guardian 314
resignation of the guardian 315
removal and supersedure of guardian 316, 317
marriage of female guardian 318
other instances where a new guardian may be appointed . . 319
of servant^ s contract 462-464
TORTS,
of one spouse upon another 49, 51
committed hij the wife 74
coverture principle 74
husband and wife sued together, or husband alone .... 75
coercion presumed 75
limitation of husband's liability 75
instances; management of defence 75
where basis of fraud is wife's contract 76
replevin in; equity proceedings, &c 76
committed upon the vife 77
general rule ; practice 77
damages; survival of action 77
husband's separate cause of action 77
instantaneous death ; statutes, &c 78
committed upon both husband and wife 79
as to torts in general ; marriage essential 79
under equity and married women's acts 170 n.
INDEX. 771
Sectiok
TORTS — continued,
of children considered 257
parent may sue for loss of child's services 257
limitations of the rule 258
statutes affecting the right of action 259
incidents of such suits 259
assault and battery of child 259
enticement and abduction 260
cases where right of action is not sustained 2G0
seduction of child 261
amount of damages recoverable 262, 430
liability of parent for torts or frauds committed by his infant
child 263
child himself is answerable 263
but not necessarily the parent 263
as between guardian and ward 381
committed by infanta 423
rule of infant's liability ; civilly liable 423
where parent expressly commands 423
not responsible for torts arising from contracts 424
equitable principle of later cases 424, 425
embezzlement and deceit 425
infant's fraudulent representation as to age, &c 425
chancery, civil law ; and statutory rules 426
sujfered by infants 427
general right to sue 427
except where a trespasser, or contributing to injuiy .... 428
contributory negligence of child's parent, protector, &c. . . 429
employment of minor injured in service 492 n.
joint wrong-doers 429
suit of parent and child for injury ; loss of services reckoned 430
arbitration and compromise of torts and settlement committed or
suffered 431
torts and frauds of servant 629
of government agents 630
liability of master for servant's torts 636-644
See also Guardianship; Master and Servant.
TRADE,
separate, by married woman 163
earlier English doctrine 163
by custom of London, &c 163
not common in England 163
American equity doctrine 164
assent of husband, American custom, &c 164
repudiated in some States 164
American equity rule, general conclusions 165
under recent English statutes 166
American statutes , 166, 167
statute requirements, registiy, &c 167
772 INDEX.
mr, » T^T-i . , Section
TRADE — continued,
wife's capacity for carrying it on 167
selling out the business 167
husband's participation, his agency, &c 168
husband and wife as copartners . 169
wife's copartnership with third persons 169
suits by or against wife as trader 169
trading under civil codes 170
of a ward 349
of an infant 408, 412, 442
TRUSTEE,
in separate property 103,120,123,138,140
married woman as 86, 156
in antenuptial settlement 180
in separation deed 218
whether guardian is 321
W.
WAGES. See Earnings.
WARD,
judicial control of ward's property 323
property followed whenever wrongfully disposed of ... . 349
as to waivPs real estate 347, 349
constitutional questions concerning sales 330
extent of guardian's control 350, 351
sales not allowed in chancery 355, 356
purchases on ward's behalf 356
civil law rule 358
legislative authority may intervene 359
American statutes permit sales 359, 360
disposition of proceeds 360
essentials of purchaser's title 361
immaterial irregularities; those which make sale voidable;
those which make sale void 361
mortgages of ward's land under statute 361
sales of land by non-residents 362
New York chancery rule ; American equity rule 3G3
general rights of the loard 378
doctrine of election as to wards, insane or infant . . . 379, 380
remedies against his guardian 381
action or bill for account after guardianship; limitations, &c. 382
right to recover embezzled property 383
right to have fraudulent transactions set aside 384
may repudiate or confirm unauthorized acts at his election 385
election as to guardian's bargains with ward's funds . 385, 386
resulting trusts; guardian's misuse of funds or purchase of
property 386
INDEX. 773
Section
WARD — continued,
transactions between guardian and ward; undue influence, &c. o87
gifts to guardian treated with suspicion 387
such questions determined on final settlement of accounts . 388
ward's right to reopen accounts 388
transactions after guardianship is ended 389
marriage of ward in chancery 390
See Guardian.
WASTE 92
See Real Estate.
WIDOW. See Death.
WIFE. See Husband and Wife.
WILLS,
freehold interest of husband; wife cannot devise 99
of husband, widow's waiver, election, &c 206
of married women 203 n.
will of person under guardiansTiip 379, 380
incapacity of infants ... 397
WITNESSES. See Evidence.
WORKMEN,
English legislation 4.56
councils or courts of conciliation 456
American legislation 456
trade associations 456
tTniversity Press : John Wilson and Son, Cambridge.
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