Page:The New International Encyclopædia 1st ed. v. 10.djvu/398

* HUSBAND AND WIFE. ^'14 HUSBAND AND WIFE. neither can convey the title without the other, iind the snivivor becomes entitled to the property absolutely. Un the death of one of the parties to the marriage the property is disposed of a8 follows: if the husband ective of the wife. Jiul there are some things his will cannot take away from her, as. for example, her leases, cho.ses in action not reduced to possession, and her real estate. To these may be added her paraphernalia, so called, which consists of her personal apparel and jewels: but even these may be taken by her husband's creditors if there be a deficiency of as.sets. When the wife dies before the husband he becomes entitled to all her personal estate, of whatever descrip- tion, even though she leave children <if the mar- riage ; and it must be recollecled that she can at the common law. generally sjnaking. make no will which has any elleet if the husband chooses to repudiate it. 'fhe wife's real estate passes to her heirs unless ,a child has been born of the marriage, in whi<'h case the husband is entitled to curtesy in the entire estate. The English courts of chanccrj', by application of the doctrine of uses and trusts (q.v. ). mitigated to some ex- tent the harshness of the common-law rules re- lating to married women. By an antenuptial agreement between the parties to the marriage, sometimes calle<i a marriage settlement, not only all the property she may have had before mar- riage, but ])roperty to which she may afterwards be entitled, may be given to trustees to hold for her separate use. The agreement may give her a practically unlimited riglit over the property thus settled upon her which equity would enforce, and she may thus receive regularly the income of the trust and use of it for her own purposes. She may bind her separate estate by contract, and even dispose of it by will. Courts of equity will also in a proper cuse enforce agreements made l)etween husband and wife, and in certain cases will enforce a conveyance made by the husband to the wife when made for the purjiose of pro- viding for the wife. The various rights with reference to separate property thus created and enforced by courts of equity are known as mar- ried women's separate estates. Statvtory MomFicATiON OF THE Common T>AW. The preceding statement is an outline of the rights and liabilities of the husband nnd wife according to the common-law rules. Half a cen- tury ago |uiblic attention was first directed tow- ard the essential injustice of the common law to married women. The agitation which followed took fast hoM ipon the public conscience, and ultimately found expression both in England and the United States in a series of statutes known as married women's enabling acts. Xew York was the first State to adopt this reform, by an act framed in 1S48. and its example was followed by other States in rapid succession. The various statutes relating to the subject have been re- p<'atedly revised, and their scope widened by amendment, until at the present time in most jurisdictions, though the statutes differ in minor particulars, married women are on a substantial eqiiality with their husbands with reference to both personal rights and rights of property, and each is practically independent nf the other with reference to all matters outside the obligation of the status marriage or the marriage contract itself. The effect of modern statutory law will be best understood by briefly mentioning some of the more important exceptions to the fore- going statement. In probably all jurisdictions the husband is still under obligation to supjjort his wife, and lo provide her with necessaries, and the wife, by acting as his agent, nuvy still bind the husband l)y contract. As the husband no longer acquires any interest in the wife's personal property or cho.ses in action, he is not subject to the correspon<ling obligation to answer for her torts and contra<ts, they lieing an obligation of the wife alone, lor which she may lie separately sued. Either may sue or be sued indi'pendently of the other. bile the husband may no longer take the wife's earnings, he is in a general sense still entitled to the wife's ser- vices, so long as she continues to give them to him; and he may sue in his own right to re- cover for torts causing loss of her services or ex- l)enditure by him for necessaries, and either may sue for alienation of the affections of the other. The law of domicile of the husband and wile re- mains luichangeil. The wife still has dower in the husband's real estate, and in some of the Southern and Western States she has by statute a homestead in the husband's lands. Jn many .States the hu.sband may acquire curtesy in the wife's real estate, but in some, like New York, the wife may defeat his right by conveyance or will. In some States, as New Jersey, the wife cannot convey her real estate as freely as the Inisband niny. but nuist be examined apart from her husband by a notary, commissioner, or judge before making the conveyance, who must ascer- tain whether the conveyance is freely made with- out coercion by the husband. Estates by the en- tirely are now generally ob.solete, the husband and wife taking as co-tenants, or tenants in com- mon. In nearly all jurisdictions statutes of dis- tribution (q.v.) have been enacted, by which either party to the marriage may acquire a part of the personal property of the other in case of his or her death without having disposed of the personal property by will. In other particulars these statutes follow closely the analogy of the law of inheritance. Provision has also been made by statute in most jurisdictions for directly com- pelling the husband to support the wife by me.ans of a quasi-criminal proceeding brought at her instance. The same result m:iy be obtained by the various statutory forms of judicial separatifm (see DivoHCKl. by which the husband nuiy be compelled to pay the wife certain sums of money, or alimony (q.v.) . Scotland. The law of husband and wife in Scotland as regards their personal rights and dis- abilities, and the property during the marriage, does not substantially differ from the law of England, but the following points may be noticed: As regards their persons and personal rights and crimes the law is the same. It is often said that in Scotland the movable property of both husband and wife becomes a kind of joint-stock property, called floods in communion : but this phrase has no meaning except with reference to the principle of the division of the property after the death of one of the parties and the dissolu- tion of the marriage. The husband is. as in England, entire master, except that he cannot on his death-bed bequeath more than a share of the property away from the wife. The wife's mov- able property becomes the husband's, and her