Page:Encyclopædia Britannica, Ninth Edition, v. 12.djvu/417

401 HUSBAND 401 perty without her husband s consent, or legal authority. On the death of either party the property is divided in equal moities between the survivor and the heirs of the deceased. Law of England. The English common law has as usual followed its own course in dealing with this subject, and in no department are its rules more entirely insular and independent. The text writers all assume two funda mental principles, which between them establish a system of rights totally unlike that we have just described. Husband and wife are said to be one person in the eye of the law unicti persona, quia caro una et sanguis unus. Hence a man cannot grant or give anything to his wife, because she is himself, and if there are any compacts between them before marriage they are dissolved by the union of persons. Hence, too, the old rule of law, now greatly modified, that husband and wife could not be allowed to give evidence against each other, in any trial, civil or criminal. The unity, however, is one-sided only ; it is the wife who is merged in the husband, not the hus band in the wife. And when the theory does not apply, the disabilities of &quot; coverture &quot; suspend the active exercise of the wife s legal faculties. The old technical phraseology describes husband and wife as baron andfemme; the rights of the husband arc baronial rights. From one point of view the wife is merged in the husband, from another she is as one of his vassals. A curious example is the immunity of the wife in certain cases from punishment for crime committed in the presence and on the presumed coercion of the husband. &quot; So great a favourite,&quot; says Blackstone, &quot; is the female sex of the laws of England.&quot; The application of these principles with reference to the property of the wife, and her capacity to contract, may now be briefly traced, The freehold property of the wife becomes vested in the husband and herself during the coverture, and he has the management and the profits. If the wife has been in actual possession at any time during the marriage of an estate of inheritance, and if there has been a child of the marriage capable of inheriting, then the husband becomes entitled on his wife s death to hold the estate for his own life as tenant by the curtesy of England (curialitas). 1 Beyond this, however, the husband s rights do not extend, and the wife s heir at last succeeds to the inheritance. The wife cannot part with her real estate without the concur rence of the husband ; and even so she must be examined apart from her husband, to ascertain whether she freely and voluntarily consents to the deed. With regard to personal property, it passes absolutely at common law to the husband. Specific things in the possession of the wife (/ hoses in possession) become the property of the husband at once ; things not in possession, but due and recoverable from others (cfioses in action), may be recovered by the husband. A chose in action not re duced into actual possession, when the marriage is dissolved by death, reverts to the wife if she is the survivor; if the husband survives, he can obtain possession by taking out letters of administration. A chose in action is to be distinguished from a specific thing which, although the pro perty of the wife, is for the time being in the hands of another. In the latter case the property is in the wife, and passes at once to the husband ; in the former the wife has a mcrsjits in personam, which the husband may enforce if he chooses, but which is still capable of reverting to the wife if the husband dies without enforcing it. The chattels real of the wife (i.e., personal property, dependent on, and partaking of, the nature of reality, such as 1 Curtesy or courtesy lias been explained l&amp;gt;y legal writers as &quot;arising byfarov.r of the law of England.&quot; The word has nothing to do with courtesy in the sense of complaisance. leaseholds) pass to the husband, subject to the wife s right of survivorship, unless barred by the husband by some act done during his life. A disposition by will does not bar the wife s interest ; but any disposition inter rivos by the husband will be valid and effective. The courts of equity, however, greatly modified the rules of the common law by the introduction of the wife s separate estate, i.e., property settled to the wife for her separate use, independently of her husband. The principle seems to have been originally admitted in a case of actual separation, when a fund was given for the maintenance of the wife while living apart from her husband. And the conditions under which separate estate may be enjoyed have taken the court of chancery many generations to develop. No particular form of words is necessary to create a separate estate, and the intervention of trustees, though common, is not necessary. A clear intention to de prive the husband of his common law 7 rights will be suffi cient to do so. In such a case a married woman is entitled to deal with her property as if she was unmarried, although the earlier decisions were in favour of requiring her binding engagements to be in writing or under seal. But I it is now held that any engagements, clearly made with reference to the separate estate, will bind that estate, exactly as if the woman had been zfemme sole. Connected with the doctrine of separate use is the equitable contriv ance of restraint on anticipation, whereby property may be so settled to the separate use of a married woman that she cannot, during coverture, alienate it or anticipate the income. No such restraint is recognized in the case of a man or of afemme sole, and it depends entirely on the separate estate ; and the separate estate has its existence only during coverture, so that a woman to whom such an estate is given may dispose of it so long as she is unmarried, but becomes bound by the restraint as soon as she is married. In yet another way the court of chancery interfered to protect the interests of married women. When a husband sought the aid of that court to get possession of his wife s choses in action, he was required to make a provision for her and her children out of the fund sought to be re- j covered. This is called the wife s equity to a settlement, I and is said to be based on the original maxim of chancery i jurisprudence, that &quot;he who seeks equity must do equity.&quot; recognized. The wife s pin-money is a yearly allowance i settled on her before marriage for the purchase of clothes and ornaments suitable to her husband s station, but it is not j an absolute gift to the separate use of the wife ; and a wife surviving her husband cannot claim for more than one year s arrears of pin-money. Paraphernalia are jewels and other ornaments given to the wife for the purpose of being worn by her, but not as her separate property. The hus- i band may dispose of them by act inter vivos but not by I which case she must elect between the will and the para- The corresponding interest of the wife in the property of the husband is much more meagre and illusory. Besides a general right to maintenance at her husband s expense, she has at common law a right to doiver in her husband s lands, and to a pars rationalilis (third) of his personal estate, if he dies intestate. The former, which originally was a solid provision for widows, has by the ingenuity of conveyancers, as well as by positive enactment, been reduced to very slender dimensions. It may be destroyed by a mere declaration to that effect on the part of the husband, as well as by his conveyance of the land or by his will. The common practice of regulating the rights of husband, wife, and children by marriage settlements obviates the hardships of the common law at least for the women of XTI. &amp;lt;i
 * Two other property interests of minor importance are
 * will, unless the will confers other benefits on the wife, in
 * phernalia.