13. The right of custody of children, which under the common law belonged to the father, is now regulated by statutes in the various jurisdictions, the tendency being to place the wife on a more equal footing with the husband. This subject is treated fully elsewhere in this Course." PROPERTY RIGHTS OF HUSBAND 14. In His Own Property. - Entering into the marriage relation does not change the husband's rights in property which is exclusively his own. He holds all that he held before marriage, and what he acquires during the coverture by the same free right as before the marriage, subject only upon his death to the wife's right of dower or other rights, secured to her by the laws concerning the estates of decedents. Legislation in behalf of the wife has not destroyed the husband's interest in his own property, nor annihilated any of the evidences of his title. That which before was evidence of ownership in him is evidence now." 80 15. In the Wife's Realty. - The husband has certain rights in the real property of the wife, which are unaffected by the married woman's enabling statutes. In England, the right of curtesy entitles the husband to an estate in the undisposed-of real estate of the deceased wife, notwithstanding the Married Woman's Property Act of 1882." In the United States, that right exists in the husband as under the common law, except as modified or abrogated in certain jurisdictions. But, apart from the right of curtesy, the law, as carefully construed, draws a fine line between property rights of the husband in the wife's realty which still exist, notwithstanding married women's enabling statutes, and those rights which no longer exist because of the statutes. These statutes reduce the property rights of the husband as they existed under the common law of coverture, but, when a complete legal estate in the wife's realty has already vested in the husband, it is not taken away by the statutes, 47 See The Law of Parent and Child. 48 37 Pa. 156 (1860). 492 Ch. Div. (Eng.) 336 (1892). 50 See The Law of Property: Tenancy by the Curtesy. nor is the effect of a previous conveyance of land to husband and wife jointly changed in respect of survivorship." The general rule is its own proposition, that "no statute is to have a retrospect beyond the time of its commencement." All laws are prospective, not retrospective; hence, rights of the husband, which at the time of the passage of the acts in behalf of married women, were vested rights, still exist as an estate in the husband." The husband's vested rights arising under a marriage cannot be constitutionally disturbed by an alteration of the law; his mere expectancy, or the possibility 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." The courts sustain these views by holding, that the married woman's legislation was not intended to divest the interest which a husband, before the legislation was passed, had in real estate of the wife. Such action would be unconstitutional." It cannot be stated as a positive claim that a husband has no interest whatever in the wife's separate equitable or statutory estate, but it may be said, with greater precision, that the husband has no interest in the wife's property, which is guaranteed to her as her separate estate, free from her husband's control and free from his debts and liabilities, by legislation having reference, not to a wife's property in the mass, but to property owned by her before the marriage or suitably acquired in certain instances by way of exception to the old common-law rule as to coverture; where, in short, the separate-estate intention is clearly expressed." And, in spite of the broad intention of some of the statutes, the courts in some of the United States still hold to the presumption that a married woman's property belongs to the husband as under the old procedure, except in cases where the intent to make the property the wife's own, separately and completely, is couched in the plainest words that 51 Schoul. Dom. Rel., Sec. 114, citing 11 S. C. 71 (1878); 76 III. 536 (1875). 52 22 Fed. Cas. 1,107 (1867); 136 U. S. 300 (1890). 53 Schoul. Dom. Rel. (5th Ed.), Sec. 114. it is possible to employ to effect such intention. In some states it is held that the legislation did not make the separate estate of a married woman so exclusively her own as to exclude the husband's use of it, as the head of the family, or enable her to invest it in any way she pleases without his consent; and, that when the husband as the head of the family occupies and cultivates the land of the wife, he must be considered as occupying it with her consent for the common benefit of the family; and the products of his toil upon such is his property, notwithstanding the statute, as if he occupied, as a tenant, land rented from some third person." 16. The husband's estate in his wife's realty, where he has an interest in her estate under the common law and in default of a statute vesting the estate absolutely in the wife by the proper words required to make it her separate property entirely free from his control and debts, is a freehold estate or interest in her estate of inheritance during the joint lives of himself and wife, and also in her estates for life, and he is entitled to the rents and profits of the same; and it is such a vested interest in possession of which he cannot be deprived except by due process of law." It is such an estate that, in some states, exists independently of the birth of issue. By an Oregon statute, for instance, the common-law rule in this regard is not changed, but it provides that, upon the death of the wife, the husband shall be tenant by the curtesy whether issue be born alive or not." And, in some states, it is held, that while under the statutes the husband, as such, has no estate in the lands of his wife, the possession of the husband in the right of his wife is not so destroyed as to render him liable to the demand of the wife, the owner of the land, for the rent of the home. It is held, also, that the legislature did not intend, by exempting rents and profits of the wife's realty from seizure for the husband's debts, to create, thereby, a separate estate in such rents and profits in the wife, and that the husband is still entitled to them; also, 56 36 Pa. 410 (1860); 152 Mass. 203 (1890); 37 Ill. 241 (1865). 57 96 Tenn. 580 (1896); 5 Barb. (N. Y.) 474 (1849); 11 Q. B. (Eng.) 916 (1848). 58 58 Ill. 30 (1871); 5 Saw. (U. S.) 249 (1878). that while, under statutes giving to married women separate property rights, the husband has no interest in the wife's real estate which he can convey by his individual deed, he has the right to possess and enjoy the land, and the right can only be divested for the causes and in the mode specified by statute." The consensus of judicial opinion on this subject is that the legislative intention in placing a married woman in an estate of her own as her separate estate will be carried out whenever it appears that she has or is given or granted property to be held by her independently of her husband and as if she were single and not in fraud of his creditors. The wife's possession of property and her purchases, which were presumably the husband's under the common law, are presumably the husband's now, under the recent married woman's legislation, for the higher reason that without such presumption the legislation would open a wide door to the perpetration of fraud upon creditors; but these presumptions are rebuttable, and the burden of proof is on the wife if she allege the contrary."" 60 17. In the Wife's Personalty. - Under the common law, chattels real, money, and other personal property, and choses in action, which belonged to the wife at the time of her marriage, or which she acquired during coverture, became the husband's own. Whatever personalty the wife had in her possession in her own right when she married, or which came to her during the coverture, whether by gift, bequest, or otherwise, vested absolutely in the husband without any act on his part to assert his right, and it was his to do with as he pleased; it was subject to the claims of his creditors, and on his death his personal representatives inherited it." Chattels real of the wife, upon marriage, became the husband's in the right of the wife, and he could do as he pleased with them, they being also liable for his debts. On her death they vested absolutely in him if he survived his wife, but they did not survive to him on her 59 15 So. Rep. 42 (1894); 96 Tenn. 580 (1896); 21 Mo. App. 528 (1886); 95 Mo. 68 (1888). 60 37 Pa. 161 (1860). 61 L. R. 3 Q. B. (Eng.) 541 (1868). death and pass to his heirs on his death, but survived to the wife, if the husband had not reduced them to possession by disposing of them or by some other equivalent act." The wife's choses in action, when reduced to possession, became the husband's own also under the common law, and when not reduced to possession, if he died before the wife and she survived, or if he were divorced absolutely from her, all such of every kind, as remained choses in action, became the wife's absolutely as if she had always been a single woman.* 63 In the present age, under the married women's statutes, in all jurisdictions where such legislation properly and fully invests a married woman with a separate estate in her chattels real, personalty, and choses in action, the husband has no interest therein. In jurisdictions where the common law still holds good, the interest of the husband in such property is as has been explained in the three preceding paragraphs, and in preceding pages of this title." THE WIFE'S RIGHTS AND DUTIES 18. It is the right of the wife to have cohabitation as fully as it is that of the husband. In the United States, she cannot enforce the right of cohabitation by the aid of law or equity, and she is sent to the divorce court for reparation if the right be denied her."" In England, she may enforce the right by a suit to restore her to her conjugal rights." The wife's right to support and maintenance by the husband which, as has been stated, is a duty on the part of the husband according to his means and condition in life, is enforceable at law, under the statutes, and sometimes in equity independent of the statutes." 19. The wife's right of protection is as much the concern of the law when she is to be protected from the 62 25 Ch. Div. (Eng.) 620, 621 (1883); 50 Me. 371 (1862); 19 N. J. Eq. 230 (1868). 63140 Mass. 340 (1887); L. R. 4 Q. B. (Eng.) 500 (1869). 65 37 Mich. 62 (1877). 664 P. D. (Eng.) 63 (1878). 67 20 Q. B. Div. (Eng.) 76 (1887); 144 Mass. 278 (1887). 64 See subtitle Coverture Under the Common Law supra. |