Cornell University Library KFM2496.Z9A45 Law of married women in Massacliusetts / 3 1924 024 687 018 ajnrn^ll Cam Btl^aal SIibrari| The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 92402468701 8 THE LAW OF MARRIED WOMEN m MASSACHUSETTS. CHAELES AJiMY, Jr., and HORACE W. FULLER, OP THE SUFFOLK BAR. BOSTON: PUBLISHED BY GEORGE B..REED. 1878. mm: law ' COPTEIGHT, 1878. Bt CHABLBS ALMT, Jb., abb HORACE W. ITIIXEE. PSraiEB AT THE mllTERSITV PRESS, CAMBRIDGE. INTRODUCTION. "Even tte diaabilities wMcli the wife lies under are for the most partw intended for her protection and benefit ; so great a favorite is the female sex of the laws of England." — 1 Bladcstone's Commentaries, 44^- * "Nothing, I apprehend, -would more conciliate the good-wUl of the student in favor of the laws of England than the persuasion that they had shown a partiality to the female sex. But I am not so much in love with my subject as to he inclined to leave it in possession of a glory w'hich it may not justly deserve. In addition to what has been observed ia this chapter by the learned commentator, I shall here state some of the principal differences in the English law respecting the two sexes ; and I shall leave it to the reader to determine on which side is the balance, and how far this compliment is sup- ported by truth. " Husband and wife, in the language of the law, are styled lawn and feme. The word baron, or lord, attrib- utes to the husband not a very courteous superiority. But we might be inclined to think this merely an un- meaning technical phrase, if we did not recollect thatif the baron kUls his feme it is the same as if he had killed a stranger, or any other person ; but if the feme kUls her baron it is regarded by the laws as a much more atrocious crime, as she not only breaks through the re- * Mr. Christian's note. IV INTKODUCTIOlir. straints of humanity and conjugal affection, but throws off all subjection to the authority of her husband. And therefore the law denominates her mme a species of treason, and condemns her to the same punishment as if she had killed the king. And for every species of trea- son (though in petit treason the punishment of men was only to be drawn and hanged), till the 30 Geo. III. c. 48, §the sentence of women was to be drawn and burnt alive. "By the common law all women were denied the benefit of clergy ; and till the 3 & 4 W. and M. c. 9, they received sentence of death, and might have been exe- cuted for the first offence in simple larceny, bigamy, manslaughter, &c., however learned they were, merely be- cause their sex precluded the possibility of their taking holy orders ; though a man who could read was for the same crime subject only to burning in the hand and a few months' imprisonment. " These are the principal distinctions in'criminal mat- ters. Now let us see how the account stands with re- gard to civil rights. "Intestate personal property is equally divided be- tween males and females; but a son, though younger than all his sisters, is heir to the whole of real property. "A woman's personal property by marriage becomes absolutely her husband's, which, at his death, he may leave entirely away from her ; but if he dies without will, she is entitled to one third of his personal property if ne has cliildren ; if not, to one half. " By the marriage, the husband is absolutely master of the profits of the wife's lands during the coverture ; and if he has had a living child, and survives the wife, he retains the whole of those lands, if they are estates of inheritance, during his life ; but the wife is entitled to INTRODUCTION. V dower, or one third, if she survives, out of the husband's estates of inheritance ; but this she has whether she has had a child or not. " But a husband can be tenant by the curtesy of the trust estates of the wife, though the wife cannot be en- dowed of the trust estates of the husband. " With regard to the property of women, there is taxa- tion without representation ; for they pay taxes without having the liberty of voting for representatives; and, indeed, there seems at present no substantial reason why single women should be denied this privilege. Though the chastity of women is protected from vio- lence, yet a parent can have no reparation by our law from the 'seducer of his daughter's virtue but by stating that she is his servant, and that by the consequences of the seduction he is deprived of the benefit of her labor ; or where the seducer at the same time is a trespasser upon the close or premises of the parent. But when by such forced circumstances the law can take cognizance of the offence, juries disregard the pretended injury, and give damages commensurate to the wounded feelings of a parent. " Female virtue, by the temporal law, is perfectly ex- posed to the slanders of malignity and falsehood; for any one may proclaim in conversation that the purest maid or chastest matron is the most meretricious and incontinent of women with impunity, or free from the animadversions of the temporal courts. Thus female honor, which is dearer to the sex than their lives, is left by the common law to be the sport of an abandoned calumniator. " From this impartial statement of the account, I fear there is little reason to pay a compliment to our laws for their respect and favor to the female sex." VI INTRODUCTION. The note of Mr. Christian, given above, states in a general way the condition of a married woman at common law. There were many other civil disabilities. The marriage was a merger of her whole legal being with that of her hus- band, who was responsible for her support, for her torts, and for her crimes. She had no direct control over her property, but could, in some cases, bind that of her husband. Courts of Equity relieved against many of these disabilities. They allowed married women to hold separate property through the medium of a trustee ; in some cases enforced gifts and contracts between husband and wife, and refused to allow their aid to a husband in reducing prop- erty of the wife to possession unless he settled a suitable portion on her. In 1787^ provision was made by the General Court of Massachusetts for conveyances of real estate and contracts of married women when their husbands had absented themselves from the state.^ By the Statute of 1842, c. 74, she was allowed to make a wiU with the consent of 1 St. 1787, c. 32. 2 See also St. 1823, c. 146 ; St. 1833, o. 127 ; St. 1835, c. 146 ; E. S. 0. 77. rNTRODTJCTlON. Vll her husband. In 1845^ the first radical change was made by allowing married women to hold separate property without the intervention of a trustee, and to sue and be sued on contracts made with reference to such property as if sole. In the next year^ it was provided that payment of wages for their own work might be made to married women, and that their receipt should be a sufficient discharge. In 1855^ the property, real and personal, of a married woman before her marriage, and that which came to her after marriage by descent, devise, bequest, or gift of any person except her husband, was made her separate property and not subject to the debts of the husband. She was allowed to sell personal property alone, and real estate and shares in corporations with the consent of her husband. She was allowed to give by will one half of her personal estate, and all her real estate, subject to her husband's life interest by a will made without his consent. She was allowed to carry on trade or business, and sue and be sued in regard to it. In 1857 fur- ther provisions to the same general effect were 1 St. 1845, 0. 208. 3 st_ jggg^ ,. 304. " St. 1846, c. 209. Vm INTRODUCTION. made.i The acts of 1845, 1846, 1855, and 1857 are substantially the provisions contained in the General Statutes of 1860. The last legislation was in 1874,^ under which the rights of married women to contract, to make promissory notes, or mortgages, to sell real estate, to sue and be sued, are precisely the same as those of her husband, except the difference between her dower and his curtesy, of which neither can bar the other. In 1877, and again in 1878, a bill was passed by the Senate to legalize contracts between hus- bands and wives, and providing that the wife should own her wardrobe and articles of per- sonal ornament, but it was defeated each year in the House. 1 St. 1857, c. 249. " St. 1874, c. 184. TABLE OF CONTENTS. Page INTEODUCTION iii CHAPTER I. MABRIAGE. Who may Marry 17 What Marriages are Void 17 What Marriages are Voidable 20 How Married 21 Legitimacy of Issue 25 CHAPTER II. CONTRACTUAL POWEES. Ante-Nuptial Contracts 26 Post-Nuptial Settlements 28 What Property is Sole 31 Contracts of Married Women 35 Contracts between Husband and Wife ... 38 Separate Business 42 Partnership 46 Married Women coming from other States, or abandoned by their Husbands 47 Agency 47 10 TABLE OF CONTENTS. CHAPTER m. BEAL ESTATE. Convejances of Beal Estate Mortgages . . . . 53 58 CHAPTER IV. CEIMINAL LIABILITY. — TORTS. — AEEEST. Criminal Liability 61 Torts 63 Arrest on Civil Process 64 CHAPTER V. DIVOBCE. Divorce .... Recrimination Condonation Decree . . ^ . . Foreign Divorces Effect of an Absolute Divorce . Allowance Pendente Lite jLlimony .... Legitimacy of Issue Provisions concerning Property 65 71 72 74 76 77 78 79 81 82 CHAPTER VL Custody of Minor Childbekt . .84 TABLE OP CONTENTS. 11 CHAPTER VII. HOMESTEADS AND SETTLEMENTS. Homesteads Settlements . CHAPTER VIIL Wills CHAPTER IX. PEOTISIONS IN CASE OP INTESTACY. Distribution of the Property of a Married Woman Distribution of Property of Husband Waiver of Provisions of Husband's Will CHAPTER X. OTHER EIGHTS AND LIABILITIES, Insurance Policies Married Woman may be Executrix, &c. Witness in Suits to which Husband is a Party Right of Husband to Chastise Wife Right of Husband to Services of Wife Constitutional to Tax Women A Woman cannot be a Justice of the Peace A Woman may serve on the School Committee Guardian for Married Women Insanity of Husband or Wife Support of Wife deserted by Hosband APPENDIX INDEX . 89 91 93 95 96 98 99 101 102 103 105 106 106 107 107 108 109 110 111 TABLE OF CASES CITED. Abbott V. Winchester 39 Adams v. Brackett 28 Albee v. Wyman 41, 42 Anonymous 74 Athol Machine Co. v. Fuller 36 Austin V. Cox 63 Bailey v. Bailey 68 Baldwin v. Baldwin 79 Bancroft v. Curtis 30, 45, 57 Bartlett v. Bartlett ■ 59 Bassett v. Bassett 38 Baxter v. Knowles 28 Bemis v. Call 60 Bigelow V. Bigelow 86, 105 Bigelow V. Hubbard 42 Blackinton v. Blackinton 28 Blandin, Re 41 Brettun v. Pox 91, 98 Brigham v. Maynard 97 Broadstreet v. Broadstreet 67 Broderick v. Waltham Sav- ings Bank 29 Brown v. Wood 103 Bullard v. Briggs 30 Bullock V. Buffock 78 Burlen v. Shannon 49, 67 Burr V. Swan 36 Burroughs v. Nutting 94 Burroughs v. State Mutual Life Ins. Co. 101 Burrows v. Purple 79, 81 Butler V. Price 61 Cairns v. Cairns Cairns v. Colburn 67 56 Cahill V. Campbell 45 Camerlin v. Palmer Co. 50 Cartwright v. Bate 50 Chapman v. Briggs 44 Chapman v. Kellogg 39 Child's Case 78 Child V. Sampson 54 Clapp V. Clapp 67 Coates V. Gerlach 30 Cochrane, Petitioner 77 Comer v. Chamberlain 95 Commonwealth v. Barry 62 " V. Briggs 85, 86 " V. Burk &1, 62 " V. Butler 62 " V. Carroll 62 " V. Cheney 61 " V. Eagan 61 " V. Feeney 62 " V. Gannon 61 " V. Heffron 63 V. Kennedy 62 " V. Lane 19 " V. Mash 78 " V. Maxwell 86 V. McAfee 104 " v. Munsey 62 " V. Murphy 62 " I). Eeynolds 62 " V. Try on 62 " V. Whalen 62 " V. Williams 32 Cormerais v. Wesselhoeft 54, 56 Cowles V. Cowles 68 Cram v. Kelley 37 Cranston v. Crane 55 TABLE OF CASES CITED. 13 Crehore v. Crehore 20 Cunningham v. Beardon 50 DiUon V. Dillon 71 Donovan v. Donova 20 Dowe V. Smith 80 Durant v. Kitchie 63 Eames v. Sweetser 48 Eaton V. Eaton 66 Edgerly v. Edgerly 56 Edwards v. Stevens 46 Eldred v. Eldred 71 Faucett v. Currier 54 Fera v. Fera 70 Feran v. Kudolphsen 43,44 Field V. Gooding 29 Fisk V. Cushman 28, 29 Foss V. Fobs 20 French v. French 72 Gannon v. Housatonic K. B. Co. Gardner v. Gardner Gay V. Kingsley Glass V. Glass Gould V. Emerson Graves v. Graves Hall V. Hall Hall V. "Weir Handy v. Foley Harriman v. Gray Harteau v. Harteau Hawkins v. Prov. & R. R. Hayward v. Cain Heburn v. Warner Hills V. Bearse Holt V. Holt Hood V. Hood Ingham v. White •Jacobs V. Hesler Jenkins v. Dawes Jenkins v. Holt 105 72, 73 39 19 100 79 70 48,49 63 45 67 Wor. 28, 33 57 58,59 54 71 67 39 31, 102 103 27 Knickerbocker Life Ins. Co. V. Weitz 100 Lawrence v. Bartlett 27 Lawson v. Lawson 30 Lea V. Lea 70 Legg V. Legs 32 Leggate v. Clark 54 Libby v. Chase 57 Livingston v. Livingston 41 Long V. Drew 44 Lord V. Parker 46 Lowell V. Daniels 54 Lyon V. Lyon 76 Lyster v. Lyster 70 Magrath v. Magrath 70 Major V. Holmes 37 Manby v. Scott 49 Mansfield u. Mansfield 67 Marshall v. Berry 94 Mason v. Bowles 44 Mayhew v. Thayer 49 McCarty v. De Best 63 McCluskey v. Prov. Inst, for Savings 28, 33 McGregor v. Wait 51 Melyin v. Proprietors &c. 55 Mercier v. Chase 90, 91 Merriam v. B. C. & F. R. R. 54 Merriam v. Cunningham 48 Merrick v. Plumley 51 Merrill v. Parker 45 Meyers v. Pope 24 Milford V. Worcester 23 Miller v. Goodwin 27 Model &c. Ass. v. Boston 60 Moors V. Moors 75 Motte V. Alger 29, 30 Mnlhern v. McDavitt 50 Nourse v. Henshaw 38 Opinion of Justices 106 Page V. Trufant 41 Paine v. Farr .51 14 TABLE OF CASES CITED. Parton V. Hefvey 17 Stetson V. O'Stdlivan 29 Peabody v. Peabody 71 Stuart V. Stuart 81 Peabody v. School Com. of SuUings V. Bichmond 28 Boston 107 Sullings V. Sullings 27 Pease v. Allis 103 Swan V. Snow 101 Perkins v. Bichardson 56 Sweeney v. Boston Five Phillips V. Frye 40 Cents Sayings Bank 29 Pierce v. Chace 58 Pierce v. Thompson 30 Tarbell v. Tarbell 27 Plumer v. Lord 46 Thomson v. O'SuIUvan 28,29 Proper v. Cobb 45 Thurston v. Thurston 70 Towle V. Towle 29 Raynes v. Bennett 47,48 Townsley v. Chapin 65 Me Blandin 41 Tucker v. Fenno 59 Re Bichards 41 Turner v. Nye 39,40 Beemie v. Beemie 67 Beiman v. Hamilton 52 Unity Ass. v Dugan 100 Beynolds v. Beynolds 20 Beynolds v. Sweetser 49 Wales V. Coffin 55, 57 Bichards, Be 41 Walker v. Walker 81 Bobbins v. Bobbins 72 Wallingsford v. Allen SO Bobbins v. Potter 38 Walsh V. Young 68 Bobinson v. Trofittef 84,41 Warner v. Cronch 54 Boby V. Phelon 39 Webster v. Potter 33 Eogers v. BogerS 74 Weed Sewing Mach. Co. V. Bogers ». Ward 35 Emerson 60 Westgate v. Munroe Wheeler v. Wall 36 Savage v. Winchester Sewall V. Sewall 60 106 73, 76 White V. Graves 56 Shaw V. Shaw 66 White V. White 20, 78 Shepard v. Shepard 30, 41 Whitney v. Wheeler 30 Silsby V. Bullock 93 Wight V. Shaw 54 Slawson v. Loring 39 Wilder v. Bichie 88 Smith V. Smith 76 Willard v. Eastham 35 , 36, 59 Smith V. Sweet 93 Willey V. Beach 48 Snow V. Paine 31,57 Williams v. Hayward Williams v. WilUams 36 Southwick ». Southwick 70 97 Sparhawk v. Sparhawk 80 Worcester v. Marchant 60 Spaulding t;. Day 33 Stearns v. O'Sullivau 29 Tale V. Wheelock 36 Steams v. Bullens 40 TABLE OF STATUTES CITED. Pagp Gen. St. Chap. 58 99 « " « 90 97 « « " 94 95,96,97,102 " « " 96 33,97 « " " 104 ^ 90,91 " « « 106 .*. 17,19,21,22,23 " " " 107 19, 20, 21, 25, 65, 66, 67, 68, 69, 70, 75, 76, 77, 79, 80, 81, 82, 86, 87, 88 " " « 108 26, 27, 28, 30, 32, 35, 42, 47, 53, 56, 93, 108 « « " 109 84,85 " " « 124 64 " " " 155 103 « « " 161 63 " " " 165 18,19 " « « 168 63 St 1861 Chap. 164 98 " 1862 « 116 109 '< « « 162 64 " « " 198 43,62 "1863 " 165 46 « 1864 « 197 99 " « " 198 94 « « " 276 94 « 1866 » 148 80 « 1867 " 58 21 « « " 222 75 16 TABLE OP STATUTES CITED. St. 1867 Chap. 248 27 "1868 " 95 34 "1869 " 292 26 " « " 409 102 "1870 " 393 102 " " " 404 68,69,71,82 "1871 « 97 98 " " « 200 98 " 1873 " 58 98 « " " 367 85 " " " 371 69,75,77,79,87 "1874 " 184 32,46,101 " " " 205 86,105 « " " 389 107 « " « 397 75 "1875 " 226 75 "1876 « 220 96 "1877 " 83 95 " " " 174 ...65 " « « 178 79,83 " 1878 " 199 109 " « « 260 85 LAW OF MARRIED WOMEN. CHAPTER I. MARRIAGE. WHO MAT MAEET. All persons subject to the exceptions here- inafter enumerated are capable of binding them- selves in marriage who have arrived at the age of consent, which, in this commonwealth, as by the common law, is twelve in females and fourteen in males. A marriage between two infants of or above these ages is valid, even without the consent of the parents or guar- dians,-' although the statutes impose a penalty upon any magistrate or minister who performs the ceremony in such case.^ WHAT MAEEIAGES AEE VOID. Chapter 106 of the General Statutes provides that no woman shall marry her father, grand- * Parton v. Hervey, 1 Gray, 119. " Gen. St. c. 106, §§ 13, 18. 1 18 LAW OP MAEEIED WOMEN. father, son, grandson, step-father, brother, grand- mother's husband, daughter's husband, grand- daughter's husband, husba-nd's father, husband's grandfather, husband's son, husband's grandson, brother's son, sister's son, father's brother, or mother's brother ; and in the cases mentioned in which the relationship is founded on mar- riage, the prohibition continues, notwithstand- ing the dissolution of such marriage by death or divorce, unless the divorce is for a cause which shows the marriage to have been origi- nally unlawful or void. No insane person or idiot is capable of con- tracting marriage. No woman having a former husband living (unless she has been divorced from him) can contract another marriage. Not only are marriages within the degrees of consanguinity mentioned above prohibited, but parties so marrying render themselves liable to imprisonment.-' All marriages solemnized within this com- monwealth, which are prohibited by law on account of consanguinity or afl&nity between the parties, or on account of either of them 1 Gen. St. c. 165, § 7. MARRIAGE. 19 having a former husband or wife then living, or when either party was insane or an idiot, are void without any decree of divorce or other legal process.^ If persons resident in this commonwealth, in order to evade the provisions prohibiting mar- riages on account of consanguinity, affinity, insanity, or idiocy, with an intention of return- ing to reside in this state, go into another state or country, and there have their marriage sol- emnized, and afterward return and reside here, the marriage will be deemed void in this state.^ A form of marriage, entered into by the par- ties in good faith, and with a full but erroneous belief of the death of the actual husband or wife of either of the parties, is void, although such husband or wife has been absent, and not known to be alive, for seven years ; ^ but in such case the party would not be guilty of polygamy* The belief of the guilty party in a case of divorce that he has a right to marry again in the lifetime of the other party, without leave of 1 Gen. St. c. 107, § 1. '' Gen. St. c. 106, § 6 ; Com. v. Lane, 113 Mass. 458. ' Glass V. Glass, 114 Mass. 563. ' Gen. St. c. 165, § 5. 20 LAW OF MARRIED WOMEN. court, does not render such marriage valid, and it cannot be made valid by a special act of the legislature, as such act would be unconstitu- tional.^ If the parties to a marriage, solemnized when either of them was under the age of consent, separate during such nonage, and do not after- wards cohabit, the marriage will be void without a decree of divorce or other legal process.^ WHAT MARRIAGES ARE VOIDABLE. Fraud vitiates all contracts, and the contract of marriage is no exception to this rule. A marriage procured by force or fraud will, upon application to the court, be decreed to be null and void ; so, if a marriage is supposed to be void, or the validity thereof is doubted for fraud or other cause, either party may file a libel for annulling the same.^ So also, when the validity of a marriage is 1 White V. White, 105 Mass. 325. 2 Gen. St. c. 107, § 3. ' Ibid. § 4. See Reynolds v. Reynolds, 3 Allen, 605 ; Donovan v. Donovan, 9 Allen, 140 ; Foss v. Foss, 12 Allen, 26 ; Crehore v. Crehore, 97 Mass. 330. MAEHIA&E. 21 denied or doubted by either party, the other party may file a libel for affirming the mar- riage.^ HOW MAHEIED. Persons intending to be joined in marriage shall before their marriage cause notice thereof to be entered in the office of the clerk or regis- trar of the city or town in which they respec- tively dwell, if within the state. If there is no such clerk or registrar in the place of their residence, the entry shall be made in an adjoin- ing city or town.^ If they live without the commonwealth, and intend to be joined in marriage within the commonwealth, this notice of their intention must be entered with the clerk or registrar of the city or town in which they propose to have the marriage solemnized.^ The clerk or registrar must thereupon deliver to the parties a certificate specifying all facts in relation to the marriage required by law to be ascertained and recorded, and this certificate shall be delivered to the minister or magis- 1 Gen. St. c. 107, § 5. = St. 1867, c. 58, § 1. " Gen. St. c. 106, § 7. 22 LAW OP MAEEIED WOMEIS". trate before he proceeds to solemnize the mar- riage.-' Any person applying for such certificate, who wilfully makes a false statement in relation to the age, residence, parent, master, or guardian of either of the parties intending marriage, shall forfeit a sum not exceeding two hundred dollars.^ When a marriage is solemnized in another state between parties living in this state, and they return to dwell here, they must, within seven days after their return, file with the clerk or registrar of the city or town where either of them lived at the time, a certificate or declara- tion of their marriage, including the facts con- cerning marriages required by law, and for every neglect they shall forfeit ten dollars.^ Martiages may be solemnized by a justice of the peace in the county for which he is appointed when either of the parties resides in the same county, and by a minister of the gospel through- out the state ; but all marriages shall be solem- nized in the city or town in which the person solemnizing them resides, or in which one or both of the persons to be married reside.* 1 Gen. St. c. 106, § 8. * Ibid. § 12. 2 Ibid. § 11. * Ibid. § 14. MAEEIAGE. 23 Marriages among Quakers or Friends may be solemnized in the manner heretofore used and practised in their societies.^ No marriage solemnized before a person pro- fessing to be a justice of the peace, or minister of the gospel, shall be deemed or adjudged to be void, nor shall the validity thereof be in any way affected, by want of jurisdiction or author- ity in such person, or by an omission or infor- mality in the manner of entering the intention of marriage, if the marriage is in other respects lawful, and is consummated with a full belief, on the part of the persons so married, or either of them, that they have been lawfully joined in marriage.^ No peculiar ceremonies are reqiiisite, and no form of words is established, for the solemniza- tion of marriage. The consent of the parties is the great essential, and it is sufficient if they contract in some form or other before a justice of the peace for the county in which either of them resides, or a minister who resides within the state, and he assents to the proceeding, act- ing in his official capacity.^ 1 Gen. St. c. 106, § 15. » Milford v. Worcester, 7 Mass. 48. " Ibid. § 20. 24 LAW OP MAEEIED WOMEN. It has been held that the. actual assent of the magistrate or minister is not necessary if the contracting parties really believe that he assents.^ In this case the parties went before a justicQ of the peace, with the intent on the part of both to contract marriage before him. The man sim- ply stated that the woman was his wife, and they then departed and afterward lived together as man and wife, both believing themselves law- fully married. The court held this to be a valid marriage, notwithstanding the justice testified that he did not understand that he married the parties, and that all that was said by either of them was that the man introduced the woman as his wife. This seems to go to the extreme limit of liberality in the construction of Gen. St. c. 106, § 20, which provides that a marriage is not to be " deemed or adjudged void, nor shall the valid- ity thereof be in any way affected by want of jurisdiction or authority in such person (that is to say, a person professing to be a minister or justice of the peace), or by an omission or in- formality in the manner of entering the inten- ^ Meyers v. Pope, 110 Mass. 314. MAERIAGE. 25 tion of marriage, if the marriage is in other respects lawful, and is consummated with a full belief on the part of the person so married, or either of them, that they have been lawfully joined in marriage." LEGITIMACY OP ISSUE. The issue of a marriage dissolved by a divorce or sentence of nullity, on account of consan- gmnity or affinity between the parties, will be deemed to be illegitimate.^ The issue of a marriage dissolved on account of the nonage, insanity, or idiocy of either party will be deemed to be the legitimate issue of the parent who was capable of contracting the marriage.^ When a marriage is dissolved on account of a prior marriage of either party, and it appears that the second marriage was contracted in good faith, and with the full belief of the par- ties that the former husband or wife was dead, the issue will be deemed the legitimate issue of the parent capable of contracting the marriage.^ 1 Gen. St. c. 107, § 28. » Ibid. § 29, ' Ibid. § 30. 26 LAW OP MAEEIED WOMEN. CHAPTEE II. CONTRAQTUAL POWERS. AKTE-NUPTIAL CONTEACTS. It is provided by statute that at any time before their marriage the parties may enter into a contract in writing, providing that after the marriage the whole or any part of the estate, real or personal, of either, or any right of action of either, shall remain or become the property of the husband or wife according to the terms of the contract.-"^ A female minor above the age of eighteen years may join with her guardian in making such a contract, in which case it will have the same effect as if she were of full age.^ There must be annexed to the contract a sched- ule containing a clear description of the prop- erty to be affected by it, and both contract and schedule must be recorded within ninety days from the marriage, in the Registry of Deeds for the county where the husband lived at the ^ Gen. St. c. 108, § 27. " St. 1869, c. 292. CONTRACTUAL POWEES. 27 time of the record, or if he was not a resident within this state, for the county where the wife resided at the time of the record, if it is recorded before marriage, or in which she last resided, if recorded after the marriage, and also in every county or district in which there are lands to which it relates. If not so recorded, it is void, except between the parties to it.^ But when the contract relates only to the rights which the survivor may claim in the estate of the other after the marriage relation has been ended by deathj its validity does not depend on the stat- ute, and it need not be recorded.^ The contract must be enforced in equity, where specific performance may be decreed,^ if it was entered into understandingly,* but not in favor of a party whose part of the contract has not been performed.^ Although it provides that the wife shall make no claim on her husband's estate after his death, it is no bar to a claim in 1 Gen. St. c. 108, § 28 ; St. 1867, o. 248. " Jenlcins v. HoU, 109 Mass. 261. ' Miller v. Goodwin, 8 Gray, 542 ; Lawrence v. BarUett, 2 Allen, 36. * Tarhell v. Tarhell, 10 Allen, 278. * Sullinga v. Sullings, 9 AUen, 234, 28 LAW OP MAEEIED WOMEN". the Probate Court for an allowance for necessa- ries/ or for a distributive share of the estate.^ POST-NUPTIAL SETTLEMENTS. As, by the common law, the property of the wife was absolutely vested in the husband by the marriage, of course she could take no legal title from him by a direct gift.^ And the statutes providing for the holding of separate property by married Women expressly provide that noth- ing in them shall authorize a husband to give or convey property to his wife.* But such a gift of personal property, if kept distinct and separate by the wife, and not mixed with his property, so that it cannot be distinguished, will be good after his death against his legal representatives^ or legatees,® but not against ^ Blackinton v. Blackinion, 110 Mass. 461. ^ Sullings v. Richmoiid, 5 Allen, 187. " Thomson v. 0' Sullivan, 6 Allen, 303; Baxter Y.Knoioles, 12 Allen, 114; Hawkins r. Providence and Worcester R. R., 119 Mass. 596. * Gen. Sts. c. 108, § 10. * Adams V. Brackett, 5 Met. 280 ; McGluskey v. Prcyv. Inst, for Savings, 103 Mass. 300. ° Fish V. Gushman, 6 Gush. 20. CONTRACTUAL POWEES. 29 creditors, and he can reduce it to possession at any time before his death.^ This rule as to reduction to possession seems to have been broken in upon by a later decision, that a man who has deposited money in a savings bank in the name of his wife cannot maintain an action against the bank for it, after notifying them that it was his.^ It is difficult to reconcile this decision, either with Towle v. Towlef or with Broderick v. Waltham Savings Bank^ in which one who deposited in the name of another not his wife was allowed to maintain an action against the bank for the amount of his deposit. A conveyance of real estate directly from husband to wife is absolutely void at law.® But * Towle V. Towle, 114 Mass. 167; Fish v. Gushman, 6 Gush. 20. " Sweeney v. Boston Five Gents Savings Bank, 116 Mass. 384. ' Supra. * 109 Mass. 149. ° Thomson v. G' Sullivan, 6 Allen, 303 ; Motte v. Alger, 15 Gray, 322. But if the husband, after mortgaging his land, sells his equity, his wife can buy at the mortgagee's sale. Field v. Gooding, 106 Mass. 310. A wife who buys real estate belonging to her husband at a sheriff's sale takes no title to it. Stetson v. 0' Sullivan, 8 Allen, 321. 30 LAW OF MARRIED WOMEN. the provision in the statute against conveyances from husband to wife ^ does not prevent a con- veyance by him to her of either real or personal property, through a third person, which was good at common law,^ unless he was insolvent at the time of making it,^ in which case it will be good against creditors of her husband, if it was for a valuable consideration, as, for in- stance, her releasing dower in another estate.* Nor does the statute prevent a husband from making a valid donatio causa mortis to his wife, as it would not be construed to render invalid what was before held to be valid.* But although a deed of real estate from the husband directly to his wife is void at law, it is possible that a court of equity would uphold it as a good declaration of a trust.^ If a woman pays money out of her separate 1 Gen. St. c. 108, § 10. ^ Motte V. Alger, 15 Gray, 322. * Bullard v. Briggs, 7 Pick. 533 ; Peirce v. Tliompson, 17 Pick. 391 ; Bancroft v. CuHis, 108 Mass. 47. * Whitney v. Wheeler, 116 Mass. 490 ; Lawson v. Lawson, 1 P. Wms. 441. 6 See 1 Perry on Trusts, § 95 ; 2 Kent Com. 129, note c; Wallingsford v. AUen, 10 Peters, 583, 594 ; Shepard v. Shepard, 7 Johns. Ch.. 57 ; CoatesY. Gerlach, 44 Penn. St. 43. CONTRACTUAL POWEES. 31 estate to her husband, it will be deemed, in the absence of proof, to have been given to him ■with the intention that it should be applied to the use or benefit of either or both of them at his discretion, and she cannot recover it back from his executor.^ But the husband can re- turn money placed in his keeping by his wife, and the transaction will not be a gift, but, if free from any fraudulent intent, will be good against creditors.^ If it can be shown that the husband took the money from his wife to hold in trust for her, a court of equity will give her relief.* WHAT PEOPERTT IS SOLE. At common law, by marriage all the personal property of the woman absolutely vested in her husband. All her choses in action might be reduced to possession at any time during the marriage, but if they were not, on the dissolu- tion of the marriage, either by the death of the husband or by a divorce, they remained the ^ Jacobs T. Hesler, 113 Mass. 157. ^ Snow T. Paine, 114 Mass. 520. " Walker v. Walker, 9 Wall. 743, 753. 32 LAW OF MAEEIED WOMEN. property of the wife.-' The only way in which she could have any separate estate was through the medium of a trustee. And even now, in the absence of all proof, the presumption is that any goods or money held by the wife belongs to the husband. The enabling statutes do not do more than allow this presumption to be rebut- ted.^ But any property of which a woman was possessed before marriage, and any that comes to her by descent, devise, bequest, grant, or gift from any one, except her husband, that which she acquires by her business or labor on her separate account, and that which she receives for releasing dower by a deed subsequent to the conveyance of her husband, and the rents and profits of the same, after marriage, are her separate property, free from the control of her husband, and from liability for his debts.^ All work and labor done by her for others than her husband and children is, unless there is an express agreement on her part to the contrary, presumed to be on her separate account.* If she purchases property with her own means, 1 Legg v. Legg, 8 Mass. 99. * St. 1874, c. 184, § 1. ^ Com. V. Williams, 7 Gray, 337. 8 Gen. St. c. 108, § 1. CONTRACTUAL POWEES. S3 and upon her own credit exclusively, it be- comes lier own, and the only question is from whom the consideration proceeds. There is no need of any words in the conveyance of per- sonal property limiting it to her separate use, and probably not in a deed of real estate.-' But if she mixes her money or other personal prop- erty with that of her husband, so that it can- not be separated and ascertained, she thereby loses all control over it.^ Similarly, if a husband builds a house on land belonging to his wife, it belongs to her, and as they cannot contract with each other, he will not be heard to say there was any agreement by which it was to remain his.^ On the other hand, property purchased with the money of the husband, though intended exclusively for the use of the wife, as articles of clothing or personal ornament, belongs wholly to him.* But after the death of the husband the apparel and ornaments of the widow and minor children belong to them.^ ^ Spaulduig v. Day, 10 Allen, 96. ^ McGlushey v. Prov. Inst, for Savings, 103 Mass. 300. * Webster v. Potter, 105 Mass. 414. * Hawkins v. Prov.