The next subject of our attention will be the mutual rights in respect of lands, arising from the relation of husband and wife. In pursuing this subject, let us consider, first, the rights of the husband in respect of the lands of his wife; and, secondly, the rights of the -wife in respect of the lands of her husband.
1. First then, as to the rights of the husband in respect of the lands of his wife. By the act of marriage, the husband and wife become in law one person, and so continue during the coverture or marriage (a). The wife is as it were merged in her husband. Accordingly, the husband is entitled to the whole of the rents and profits which may arise from his wife's lands, and acquires a freehold estate therein, during the continuance of the coverture (b); and, in like manner, all the goods and personal chattels of the wife, the property in which passes by mere delivery of possession, belong solely to her husband (c). For, by the ancient common law, it was impossible that the wife should have any power of disposition over property for her separate benefit, independently of her husband. In modem times, however, a more liberal doctrine has been established by the Court of Chancery; for this court now permits property of every kind to be vested in trustees, in trust to apply the income for the sole and separate use of a woman during any coverture, present or future. Trusts of this nature are continually enforced by the court; that is, the court will oblige the trustees to hold for the sole benefit of the wife, and will prevent the husband from interfering with her in the disposal of such income; she will consequently enjoy the same absolute power of disposition over it as if she were sole or unmarried. And, if the income of property should be given directly to a woman, for her separate use, without the intervention of any trustee, the court will compel her husband himself to hold his marital rights in such income simply as a trustee for his wife, independently of himself (d). The limitation of property in trust for the separate use of an intended wife is one of the principal objects of a modern marriage settlement. By means of such a trust, a provision may be secured, which shall be independent of the debts and liabilities of the husband, and thus free from the risk of loss, either by reason of his commercial embarrassments, or of his extravagant expenditure. In order more completely to protect the wife, the Court of Chancery allows property thus settled for the separate use of a woman to be so tied down for her own personal benefit, that she shall have no power, during her coverture, to anticipate or assign her income; for it is evident that, to place the wife's property beyond the power of her husband, is not a complete protection for her, - it must also be placed beyond the reach of his persuasion. In this particular instance, therefore, an exception has been allowed to the general rule, which forbids any restraint to be imposed on alienation. When the trust, under which property is held for the separate use of a woman during any coverture, declares that she shall not dispose of the income thereof in any mode of anticipation, every attempted disposition by her during such coverture will be deemed absolutely void (e).
The rights of the husband in respect of the lands of his wife.
Trusts for separate use now established.
(a) Litt. s. 168; 1 Black. Com. 442; Gilb. Ten. 108; 1 Roper's Husband and Wife, 1.
(b) 1 Rop. Husb. and Wife, 3;
Robertson v. Norris, 11 Q. B. 916.
(c) 1 Rop. Husb. and Wife, 169.
Separate property may be rendered inalienable.
(d) 2 Bop. Husb. and Wife, 152, 182; Major v. Lansley, 2 Russ. &. Mylne, 855.
Not only the income, but also the corpus of any property, whether real or personal, may be limited to the separate use of a married woman. Recent decisions have established that a simple gift of real estate, either with or without the intervention of trustees (f), for the separate use of a married woman, is sufficient to give her in equity a power to dispose of it by deed or will, without the consent or concurrence of her husband (g). The same rule has long been established with respect to personal estate (h). But where the legal estate in lands is vested in the wife, it must still be conveyed by a deed to be separately acknowledged by her, in the manner to be presently explained.
The Married Women's Property Act, 1870 (i), now provides that where any freehold, copyhold or customary-hold property shall descend upon any woman married after the passing of that act as heiress or co-heiress of an intestate, the rents and profits of such property shall, subject and without prejudice to the trusts of any settlement affecting the same, belong to such woman for her separate use, and her receipts alone shall be a good discharge for the same (k).
As to the corpus.
The Married Women's Property Act, 1870.
(e) Brandon v. Robinson, 18 Ves. 434; 2 Rop.Husb. and Wife, 230; Tullett v. Armstrong, 1 Beav. 1; 4 Mylne & Cr. 390; Scarborough v. Borman, 1 Beav. 34; 4 M. & Cr. 377; Baggett v. Meux, 1 Collyer, 138; ante, p. 91.
(f) Hall v. Waterhouse, V- C. S., 13 W. R. G33.
(g) Taylor v. Meads, L. C, 13 W. R. 394; 11 Jur., N S. 166.
(h) See Principles of the Law of Personal Property, p. 354, 5th ed.; 361, 6th ed.; 384, 7th ed.
(i) Stat. 33 & 34 Viet. c. 93, passed 9th August, 1870.
Whilst provisions for the separate benefit of a married woman have thus arisen in equity, the rule of law by which husband and wife are considered as one person, still continues in operation, and is occasionally productive of rather curious consequences. Thus, if lands be given to A. and B. (husband and wife), and C, a third person, and their heirs - here, had A. and B. been distinct persons, each of the three joint tenants would, as we have seen (l), have been entitled, as between themselves, to one-third part of the rents and profits, and would have had a power of disposition also over one-third part of the whole inheritance. But, since A. and B., being husband and wife, are only one person, they will take, under such a gift, a moiety only of the rents and profits, with a power to dispose only of one-half of the inheritance (m); and C, the third person, will take the other half, as joint tenant with them. Again, if lands be given to A. and B. (husband and wife) and their heirs - here, had they been separate persons, they would have become, under the gift, joint tenants in fee simple, and each would have been enabled, without the consent of the other, to dispose of an undivided moiety of the inheritance. But, as A. and B. are one, they now take, as it is said, by entireties; and, whilst the husband may do what he pleases with the rents and profits during the coverture, he cannot dispose of any part of the inheritance, without his wife's concurrence. Unless they both agree in making a disposition, each one of them must run the risk of gaining the whole by survivorship, or Losing it by dying first (n). Another consequence of the unity of husband and wife is the inability of either of them to convey to the other. As a man cannot convey to himself, so he cannot convey to his wife, who is part of himself (o). But a man may leave lands to his wife by his will; for the married state does not deprive the husband of that disposing power which he would possess if single, and a devise by will does not take effect until after his decease (p)-And by means of the Statute of Uses, the effect of a conveyance by a man to his wife can be produced(q); for a man may convey to another person to the use of his wife in the same manner as, under the statute, we have seen (r), a man may convey to the use of himself.