belief, on the part of the persons so married, or either of them, that they have been lawfully joined in marriage, provided, that neither of said parties has, since such unlawful marriage, and during the life of the other of said parties thereto, contracted a lawful marriage.

CHAPTER II.

OF THE PROPERTY AND RIGHTS OF THE WIFE.

1. REAL ESTATE.

1845. 1865. SECT. 11. The interest of a married man in the real estate of his Husband's interest in wife's real wife, belonging to her at the time of their marriage, or which she estate not to be may have subsequently acquired by devise, descent, gift, or purchase, shall not be taken by attachment or execution against him, during the life of the wife, or the life of any child which is the issue of such marriage.

bilities.

Land

1850.

SECT. 12. All real estate, conveyed to a married woman during by Purchased coverture, in consideration of money or other property acquired by to vest to her her personal services during such coverture, shall be held by her to her sole and separate use. *

sole use.

Proceeds of sales

name, protected.

SECT. 13. In every case of sale of real estate of a married of real estate, in- Woman, where the price or avails thereof have been, or shall be, vested in wife's invested in her name, or in the name of a trustee for her use, such avails shall belong to the wife, and shall not be liable to be taken on attachment or execution for the debts, or liabilities, of her husband.t

1859.

may order sale of

SECT. 14. The several courts of probate may, for just and reaCourts of probate sonable cause, order the sale of the real estate of any married woman, land of minor who is a minor, and whose husband is of full age, upon the joint married woman, application in writing of such minor and her husband, and upon his giving security, as hereinafter provided, for the proper disposition of the avails of such estate.

Bond to be required.

SECT. 15. No order shall be made for the sale of the real estate of such minor, until her husband shall give a satisfactory bond, with surety, to the judge of probate and his successors in office, with condition to invest or dispose of the avails of the estate sold, Directions of in such manner as the court of probate may direct; and every order court to be re-for the sale of such estate shall contain a full statement of the directions of said court, respecting the investment or disposition of said avails, and shall be entered at length upon the records of said

corded.

court.

*This act not retrospective. Plumb v. Sawyer, 21 C. R. 351.

+ Where a note given for the wife's land is made payable to her, the avails are vested in the wife. Jennings v. Davis, 31 C. R. 134. Such a note must be sued in the name of the husband. Edwards v. Skinner, 24 C. R. 165. If the note be made payable to the husband, the property becomes his. Hawley v. Burgess, 22 C. R. 284.

where made.

SECT. 16. All such applications, for the sale of the real estate, Applications shall be made to the probate court of the district, within which such minor resides, if she resides in this state; but if she is not a resident of this state, such application shall be made to the probate court of the district, within which the estate to be sold, or some part thereof, is situated.

married woman

SECT. 17. All deeds by a minor married woman and her husband, Deed by minor being of full age, conveying any real estate, ordered to be sold under order, under the provisions of the three preceding sections, shall be as good. effectual to convey the title of such minor to said estate, as if she had arrived at the age of twenty-one years, previous to the execution of said deed.

woman may con

estate.

SECT. 18. Whenever any married woman shall have been aban- 1856. doned by her husband, for a period of three years, and shall be the When a married owner of real estate, she may make application to the superior court vey her real in the county where such real estate or some part of it is situated, according to the course of proceedings in equity; and if said court shall find that the petitioner has been abandoned by her husband, and that such abandonment has continued uninterruptedly for a period of three years, with total neglect of duty, it shall pass a decree, authorizing and empowering the petitioner to execute any and all conveyances, necessary to dispose of such estate; and the deed or lease of the petitioner, in due form of law, made in pursuance of said decree, shall be as good and effectual to convey the title to said real estate to the grantee or lessee therein named, as if she were single and unmarried.

2. PERSONAL ESTATE.

1854. 1855. 1856.

ty of a married

husband as trus

SECT. 19. All the personal property of any married woman, 1849. married since the twenty-second day of June, 1849, and all the per- 1857. 1860. sonal property which has since that day been acquired, or which Personal propershall hereafter be acquired, by a married woman, by gift, descent, woman vests in distribution, or her personal services, or otherwise, and all property, t derived from the sale or reinvestment of any such personal property, shall vest in the husband, in trust, for the wife, and upon the decease of the husband, if undisposed of as hereinafter mentioned, shall vest in the wife, if living, or if she has deceased, in her devisees, legatees, or heirs at law, in the same manner as if she had always been a feme sole; but if the husband shall have paid debts contracted, or liabilities incurred, by the wife before marriage, the superior court, as a court of equity, upon proper application therefor, may discharge from said trust, and vest absolutely in the husband, such portion of said personal property, as may be equivalent in value to the amount of debts or liabilities so paid; but nothing in this section shall, in any manner, affect the title of the husband to any such property, as has heretofore vested in him absolutely under existing laws.*

In a suit to recover for the personal services of the wife, the husband's debt cannot be set off. Whiting v. Beckwith, 31 C. R. 596.

An ante-nuptial agreement vests the equitable title in the wife, while the legal estate is in the husband. Smith v. Chaffee, 31 C. R. 589. A suit may be brought in husband's name for an injury to the wife's personal property. Same.

When husband and wife may join. Taylor v. Knapp, 25 C. R. 510.

Husband may give personal property to his wife. Williams v. Deming, 26 C. R. 234. Jennings v. Davis, 31 C. R. 184.

Husband may be trustee of the separate property of his wife. Riley v. Riley, 25 C. R. 154.

Proceedings to obtain the property of the wife. Sherwood v. Sherwood, 82 C. R. 1.

1849.

Husband entitled

SECT. 20. The husband shall be entitled to the rents, profits, and to rents and pro- interest, of such estate during his life; and such rents, profits, and

fits.

Sale by him not

consent of wife.

interest, shall not be liable to be taken by any legal process for the debts of the husband during the life of the wife, except for debts, contracted by him for the support of the wife and her children, after such estate shall have vested in him as aforesaid.

SECT. 21. No sale or transfer, by the husband, of any such valid without estate, or of his interest therein, shall be valid, unless the wife, if living, or if she is dead, those in whom her estate shall have vested, or the guardians of such as are not of full age, shall join in a written conveyance thereof; and all reinvestments shall be in the name of the husband, describing him trustee.

Avails how disposed of.

Probate court

to account.

Require bond.

May remove trustee.

SECT. 22. The avails of any such estate, if disposed of as aforesaid, may be expended by the husband for the support of the wife, or the issue of their marriage, and may be otherwise disposed of during her life, with her written assent, without liability to account therefor.

SECT. 23. The court of probate of the district in which such may call trustee trustee resides shall, upon the written application of the wife, or of her devisees, legatees, or heirs at law, who have an interest in such estate, call such trustee to account, and may, at any time, require him to give bond with surety, payable to the judge of said court and his successors in office, for the faithful performance of such trust, or the security of such estate, and may remove such trustee and appoint another in his stead, after due notice to him to appear before said court, and show cause against such removal, whenever he shall, by reason of any cause, become incapable of executing the trust, or shall neglect, or refuse, to perform the duties thereof, or shall waste the trust estate, or shall neglect, or refuse, to apply the income thereof to the support of the wife and her children; and a removal for the last mentioned cause shall divest said husband of all interest in said estate; and any person aggrieved by any order of such court, in relation to such trustee, or trust estate, shall have the same right of appeal to the superior court, as is prescribed by the act relating to courts for appeals from other orders, sentences, and decrees, of a court of probate.

1853.

doning his wife,

SECT. 24. Whenever any married man shall have abandoned his Husband aban- wife, he shall be deemed to have abandoned his rights to the custoabandons her dy and control of her property, and to the rents and profits of the same; and said property shall thereupon immediately vest in the wife, and shall be, to all intents and purposes, her sole estate.

property.

Wife may trans

feme sole.

1850.

benefit vest in her.

SECT. 25. Whenever a married woman shall have been abandonact business as a ed by her husband, she may, during the continuance of such abandonment, transact business in her own name, and may sue and be sued in all courts of justice, as though she was single and unmarried. SECT. 26. Policies of insurance, issued on the life of any person, Policies of insur- expressed to be for the benefit of a married woman, whether the ance for wife's same be effected by herself, or her husband, or by any other person on her behalf, shall enure to her separate use and benefit, and that of her, or her husband's children, if any, as may be expressed in said policies, independently of her husband, and his creditors and representatives, and also independently of any other person, effecting the same in her behalf, his creditors, or representatives; but this section shall not apply to insurances, where the annual premium on the policy shall exceed the sum of one hundred and fifty dollars, unless paid from the private property of the wife.

1850.

Payments made

SECT. 27. Payments made to married woman of money, by her 1846. deposited with, or loaned to, any person, or corporation, or of money to a married earned by her personal services, during coverture, shall be valid woman valid. payments, and her receipt for the same shall have the same effect as the receipt of a feme sole.

1856.

SECT. 28. Whenever any executor, administrator, or guardian, Executor, &c., shall hold in his hands the personal estate of any female heir, lega- may transfer pertee, or ward, under the age of twenty-one years. such personal estate husband of a may be transferred to the legal husband of such minor.

sonal estate to

minor.

transfer how

SECT. 29. Whenever such husband shall be desirous to receive Application for such estate, he may file his application in the probate court where made. the will was proved, administration granted, or the appointment of the guardian was made, asking the court to direct the delivery of the minor's estate to him; and on offering satisfactory evidence that he is the legal husband of such minor, and executing such bond for the safe keeping of such minor's estate, as said court shall order and approve, said court may, at its discretion, order said estate to be transferred to said husband.

discharge.

SECT. 30. The executor, administrator, or guardian, shall trans- Transfer when a fer to such husband the personal estate of such minor, according to the tenor of such order, and take his receipt for the same, and shall make return to said court, under oath, that he has transferred said estate in pursuance of said order, which receipt and return shall be recorded in the records of said court; and said executor, administrator, or guardian, shall thereupon be discharged from all future liability for the estate so transferred to said husband.

3. LIABILITY OF WIFE.

ble for his wife's

SECT. 31. No married man shall be in any manner held respon- 1865. sible in any suit, either at law, or in equity, for any liabilities of his Husband not liawife, incurred before marriage, but such wife may be sued as a feme debts. sole, and her property attached for such liability, and held, and disposed of, in the same manner, as if she was single and unmarried, and she alone shall be liable to pay the damages and costs recovered in such suit; and in such actions the husband shall be cited to defend in such cause; but nothing in this section shall affect any suit pending for the recovery of such liability on the twenty-first day of July, 1865.

CHAPTER III

OF DIVORCE.

Divorces by

SECT. 32. The superior court shall have sole and exclusive juris-1848. 1849. diction of all petitions for divorce, and may grant divorces to any whom granted. man or woman, lawfully married, for the following offenses com. mitted by the other party, to wit: 1, adultery; 2, fraudulent contract; 3, willful desertion for three years, with total neglect of duty;

Mode of proceeding.

Order of notice.

1850.

has removed from another state.

4, seven years' absence not heard of; 5, habitual intemperance; 6, intolerable cruelty; 7, sentence to imprisonment for life; 8, bestiality, or any other infamous crime involving a violation of conjugal duty, and punishable by imprisonment in the state prison; or, 9, any such misconduct, as permanently destroys the happiness of the petitioner, and defeats the purposes of the marriage relation.*

SECT. 33. The party aggrieved may prefer a petition to the superior court, accompanied with a summons, signed by some competent authority, notifying the defendant to appear before the court, which shall be duly served on the other party; and on due proof of the facts, said court may grant a divorce, and declare the petitioner to be single and unmarried; and the parties divorced may then lawfully marry again.

SECT. 34. On all petitions for a divorce, where the adverse party resides out of, or is absent from, this state, either judge of the supreme court of errors, or of the superior court, or any clerk of said courts, or any county commissioner, may, in vacation, make such order relative to the notice to be given to the adverse party, as he shall deem reasonable; and such notice having been given, and duly proved to the court, said court may proceed to the hearing of such petition at the first term, or may direct such further notice to be given, as said court shall judge proper; and in every petition for a divorce, returned to the superior court, if it shall not appear by the return of the officer, or otherwise, that the respondent has had actual notice, or that an order of notice has been obtained, and duly complied with, the court shall continue the cause until the next term, and shall make such order, relative to the notice of its pendency, to be given to the adverse party, as it shall deem reasonable; and said order having been complied with, said court may proceed to a trial of said cause at its next term in said county.

SECT. 35. If the petitioner shall have removed from any other When petitioner state or nation to this state, and shall not have statedly resided in this state three years next before the date of the petition, the petitioner shall not take any thing by the petition, unless the cause of divorce shall have arisen subsequently to the removal into this state, or unless the adverse party shall have statedly resided in this state three years next before the date of the petition, and actual service of the petition shall have been made upon such party, in which cases the petitioner may maintain the petition, although he or she shall not have removed into this state, nor resided therein, three years next before the date of the petition.†

SECT. 36. The superior court may assign to any woman so divorced such reasonable part of the estate of her late husband, not

The term fraudulent contract includes those cases only which render the marriage unlawful from the beginning. Benton v. Benton, 1 Day, 111. The facts relied upon to constitute such fraud must be alleged in the petition. Ferris v. Ferris, 8 C. R. Î66. Petitioner may not always appear when the alleged cause is willful desertion. Scott *. Scott, Kirby, 270.

Various points decided in petition for alleged cause of adultery. Humphrey v. Humphrey, 7 C. R. 116. Delliber v. Delliber, 9 C. R. 233. Austin v. Austin, 10 C. R. 221. Construction of intolerable cruelty. Shaw v. Shaw, 17 C. R. 189.

When a divorce will not be granted. Goodwin v. Goodwin, 4 Day, 343.

The rights of husband and those who claim under him, in the land of the wife, are terminated by divorce. Starr v. Pease, 8 C. R. 541. Wheeler v. Hotchkiss, 10 C. R.

225.

Three years' residence necessary, when the alleged cause is intemperance. Sawtell v. Sawtell, 17 C. R. 284.