of the wife's "equity to a settlement," by which, when the husband came into equity for the purpose of relief as regards his wife's property, real or personal, or jurisdiction was oth erwise obtained of the wife's property, he was compelled to make a provision out of it for the support of his wife and children, this being merely an application of the equitable maxim that he who seeks equity must do equity.18

The equity to a settle nent being found to afford but imperfect protection to the wife, courts of equity in time permitted property of every kind to be settled upon the wife to her own separate and exclusive use, free from the control of her husband, and from liability for his debts.14 Property thus settled upon the wife received generally the designation of her "sole and separate estate," and may conveniently be termed her "equitable separate estate," to distinguish it from her "statutory separate estate," hereafter considered.15

It was at one time regarded as necessary that the legal title to the property so freed from the husband's control be

18 2 Kent, Comm. 139; ? Pomeroy, Eq. Jur. §§ 1114-1118; Sturgis V. Champreys, 5 Mylne & C. 97; Elibank v. Montolieu, 5 Ves. 737; 1 White & T. Lead. Cas. Eq. 623; Kenny v. Udall, 5 Johns. Ch. (N. Y.) 464; Salter v. Salter, 80 Ga. 178, 12 Am. St. Rep. 249; Barron v. Barron, 24 Vt. 375: Elliott v. Waring, 5 'T. B. Mon. (Ky.) 338, 17 Am. Dec. 69; Wiles v. Wiles, 3 Md. 1, 56 Am. Dec. 733; Duvall v. Farmers' Bank, 4 Gill & J. (Md.) 282, 23 Am. Dec. 558: Page v. Estes, 19 Pick. (Mass.) 269; Van Epps v. Van Deusen, 4 Paige (N. Y.) 64, 25 Am. Dec. 516; Barron v. Barron, 24 Vt. 392.

14 2 Kent, Comm. 162; 2 Story, Eq. Jur. § 1378 et seq.; 2 Perry, Trusts, c. 22; 2 Pomeroy, Eq. Jur. §§ 1098-1110; Bank of Greensboro ▼. Chambers, 30 Grat. (Va.) 202, 32 Am. Rep. 661; Botts v. Gooch, 97 Mo. 88, 10 Am. St. Rep. 286; Richardson v. De Giverville, 107 Mo. 422, 28 Am. St. Rep. 426; Williamson v. Yager, 91 Ky. 282, 34 Am. St. Rep. 184.

19

16 The word “estate” is here used, it is to be observed, in the sense of property, as when we speak of a decedent's "estate a use of the word which is to be distinguished from its use to signify a certain quantum of ownership measured by duration

vested in trustees, and this is the regular mode in which such a provision for the wife is made; but it later became settled that, if property be given or devised to a married woman for her separate and exclusive use, even without the intervention of trustees, her interest will be protected from the claims of her husband and of his creditors; the husband, in such case, though he obtains a legal estate in the property for their joint lives, being regarded as a trustee for the wife.16 The words used most frequently to create this estate are "sole and separate use," but any language is sufficient, provided it shows a clear intention to exclude all control by the husband.17

The instrument vesting the property in the wife may restrict her powers over it, and may even absolutely prohibit its alienation by her, this exception to the general rule forbidding absolute restraints on alienation being allowed in order that she may be protected from the effects of the husband's persuasion.18 In England and in some of the states of this country, in the absence of such a restraint on alienation, the wife is free to convey or charge such estate as she may choose. In other states, a different view is taken, and the wife is held to have such powers of disposition only as are

10 2 Story, Eq. Jur. § 1380; Williams, Real Prop. 224; Fears v. Brooks, 12 Ga. 195, Finch's Cas. 571; Riley v. Riley, 25 Conn. 154, 161; Jones v. Clifton, 101 U. S. 225; Boykin v. Ciples, 2 Hill, Eq. (S. C.) 200, 29 Am. Dec. 67; Hamilton v. Bishop, 8 Yerg. (Tenn.) 33, 29 Am. Dec. 101; Wood v. Wood, 83 N. Y. 575, 579; Long's Adm'r v. White's Adm'rs, 5 J. J. Marsh. (Ky.) 226; Armstrong v. Ross, 20 N. J. Eq. 109; Bennet v. Davis, 2 P. Wms. 316; Harkins v. Coalter, 2 Port. (Ala.) 463; Fears v. Brooks, 12 Ga. 195; Hamilton v. Bishop, 3 Yerg. (Tenn.) 33, 29 Am. Dec. 101.

172 Perry, Trusts, §§ 648-650; 1 Pomeroy, Eq. Jur. § 1108; Stewart, Husband & Wife, § 200; 2 Story, Eq. Jur. §§ 1281-1384; Fears v. Brooks, 12 Ga. 195, Finch's Cas. 571.

18 2 Perry, Trusts, § 646; 2 Pomeroy, Eq. Jur. § 1107; Brandon v. Robinson, 18 Ves. 434; Gray, Restraints, Allen. Prop. §§ 140, 272.

expressly given by the instrument creating the estate. The power of a married woman to make a conveyance of property which is held to her separate use is furthermore usually restricted by the general requirement that the consent of her husband must be given in writing to any conveyance by her of her real property. 20

The rights of the husband are suspended only during coverture, and, on the wife's death, he has the same rights in her separate estate as in her property not so limited, unless such rights are excluded by the terms of the instrument vesting the property in her, or by some agreement to that effect,21 or unless she dispose of the property by will, in those jurisdictions where her right to so dispose of it is recog nized. 22

178. Statutory modifications of husband's rights.

The husband's common-law interest in his wife's real property and chattels real, as well as in her personal chattels, has been abrogated or greatly diminished by what are known as the "married women's property acts." Property thus held by the wife, freed either wholly or in part from any claim or control by the husband, is known as the wife's "statutory

10 Williams, Real Prop. p. 225, note; 2 Pomeroy, Eq. Jur. §§ 1104, 1105; Stewart, Husband & Wife, $§ 203-205, 208, 344; 2 Perry, Trusts, §§ 661, 665; Taylor v. Meads, 4 De Gex, J. & S. 597; Ewing v. Smith, 3 Desaus. (S. C.) 417, 5 Am. Dec. 557, and note; Thomas г. Folwell, 2 Whart. (Pa.) 11, 30 Am. Dec. 230.

20 2 Perry, Trusts, § 656; Schouler, Domestic Relations, § 133; 2 Story, Eq. Jur. § 1391. See post, § 501.

21 2 Pomeroy, Eq. Jur. § 1110; Stewart, Husband & Wife, § 214; Ogden v. Ogden, 60 Ark. 70, 46 Am. St. Rep. 151; Payne v. Payne, 11 B. Mon. (Ky.) 138; Richardson v. Stodder, 100 Mass. 528. See post, § 208.

22 Taylor v. Meads, 4 De Gex, J. & S. 597; Schull v. Murray, 32 Md. 9; Wells v. Bransford, 28 Ala. 200, 212; Cutter v. Butler, 25 N. H. 343, 351, 57 Am. Dec. 330; Pool v. Blakie, 53 Ill. 495.

separate estate."28 The wife's real property acquired by her before marriage is, it seems, in all the states, her statutory separate property,24 while in most of the states real property acquired by her after marriage, by devise, descent, purchase, or otherwise, is likewise withdrawn by statute from the husband's control.25 This statutory separate property is not liable for the husband's debts,28 and, as is in effect stated in its definition, the husband's rights of control and disposition thereover are either wholly or partially excluded.27 The husband has, however, such a right of possession as is incidental to his right to live with his wife, since these statutes do not affect the family relations.28

The power of the wife to dispose of such separate estate is usually determined by the provisions of the statute by

23 Stewart, Husband & Wife, §§ 150, 233, 243; 1 Washburn, Real Prop. 282, note; Vreeland v. Schoonmaker, 16 N. J. Eq. 517.

24 1 Stimson, Am. St. Law, § 6420.

25 1 Stimson, Am. St. Law, § 6422.

26 1 Stimson, Am. St. Law, §§ 6410, 6420; 22 Am. & Eng. Enc. Law (1st Ed.) 55 et seq.; Aldridge v. Muirhead, 101 U. S. 397; Bridges v. McKenna, 14 Md. 258; Rudd v. Peters, 41 Ark. 177; Hunter's Appeal, 40 Pa. St. 194; Dean v. Bailey, 50 Ill. 481, 99 Am. Dec. 533; Wheeler v. Jennings, 16 B. Mon. (Ky.) 476; Buckley v. Wells, 33 N. Y. 518; Stratton v. Bailey, 80 Me. 345; Howard v. North, 5 Tex. 290, 51 Am. Dec. 769; Martin v. Remington, 100 Wis. 540, 69 Am. St. Rep. 941.

Occasionally a statute has excluded the liability of the wife's property for the husband's debts without affecting his common-law rights thereto. See Weems v. Weems, 19 Md. 334; Johnson v. Chapman, 35 Conn. 550.

27 Perry v. Mechanics' Mut. Ins. Co., 11 Fed. 485; Sampley v. Watson, 43 Ala. 377; Cheuvete v. Mason, 4 G. Greene (Iowa) 231; Levi v. Earl, 30 Ohio St. 147; Hach v. Hill (Mo.) 14 S. W. 739; Mygatt v. Coe, 152 N. Y. 457, 57 Am. St. Rep. 521; Wells v. Batts, 112 N. C. 283, 34 Am. St. Rep. 506.

28 Stewart, Husband & Wife, § 233; Cole v. Van Riper, 44 Ill. 58; Reagle v. Reagle, 179 Pa. St. 89; Snyder v. People, 26 Mich. 106, 12 Am. Rep. 302; Bledsoe v. Simms, 53 Mo. 305. See Mygatt v. Coe, 152 N. Y. 457, 57 Am. St. Rep. 521.

which it is created. Her statutory separate real property she cannot, perhaps in the majority of states, dispose of by conveyance without the joinder, or at least the written consent, of her husband, though in some states the statute clearly gives her power so to do.29

A fuller discussion of these various statutes and of their construction by the courts must be sought in treatises dealing with the property rights of husband and wife, and, owing to the very great divergencies between the different statutes, an accurate knowledge of the law in this regard in any state can be obtained only by a study of the local statutes, and the decisions thereunder.

II. DOWER

Dower is the estate to which a widow is entitled, at common law, for the period of her life, in one-third of the lands and tenements of which her husband was seised in fee simple or fee tail, and which her issue, if any, might inherit."

"Schouler, Domestic Relations, §§ 133, 150; 22 Am. & Eng. Enc. Law, 41 et seq. That his joinder is necessary, see Naylor v. Field, 29 N. J. Law, 287; Cook v. Walling, 117 Ind. 9, 10 Am. St. Rep. 17; Cole v. Van Riper, 44 Ill. 58; Brady v. Gray, 17 Ky. Law Rep. 512; Sutton v. Casseleggi, 77 Mo. 397; Dunham v. Wright, 53 Pa. St. 167; Austin v. Brown, 37 W. Va. 634; Greenholtz v. Haeffer, 53 Md. 184. That his joinder is unnecessary, see Brown v. Kimbrough, 55 Ga. 41; Robinson v. Queen, 87 Tenn. 445, 10 Am. St. Rep. 690; Farr v. Sherman, 11 Mich. 33; Libby v. Chase, 117 Mass. 105; Springer v. Berry, 47 Me. 330.

Under a statute giving the wife the same rights and powers over her separate property as if unmarried, she has been held to have the right to dispose of it alone, Beal v. Warren, 2 Gray (Mass.) 447; while a different effect has been given to a statute merely authoriz ing her to hold and enjoy her property as if unmarried, Cole v. Van Riper, 44 Ill. 58; Naylor v. Field, 29 N. J. Law, 287; Moore ▼. Cornell, 68 Pa. St. 320.

30 There were formerly in England other kinds of dower besides that which still survives, and which is distinguished by the name of "common-law dower." These were dower by special custom.