42. The estate during coverture is the right which the husband acquires at common law to the chattels real of his wife which he reduces to possession, and to the use and profits of her realty. Qualification-this right of the husband is qualified by:
(a) The doctrine of separate property.
(b) By statutory changes in nearly all the states.
By the rules of the common law, a husband acquired an interest in his wife's lands then owned or acquired during their joint lives, which was called an "estate during coverture"3 This interest gave him complete ownership of her chattels real, provided he appropriated them to his use during his wife's life.4 They were liable for his debts,5 and he could sell, mortgage, or dispose of them without her consent;6 but, if no such disposition of the chattels real was made, and she survived him, then they were hers absolutely.7 As to her real estate proper, except future estates,8 the husband had a right to the use and profits of it 9 until the marriage was terminated by death or divorce;10 and this right excluded any control by the wife during his life. The husband could collect the rents and sue in his name for any injury to the profits,11 but for injuries to the corpus of the estate it was necessary to join the wife.12 He and his lessees were entitled to emblements.13 At common law, although the husband, being a tenant for life, could not commit waste,14 still the wife's remedy was imperfect, because she could not sue him.15 But he might be restrained by injunction.16 When waste was committed by the husband's assignee, this difficulty as to the remedy did not exist.17 Full power of alienation, including liability for debts, resided in the husband to the extent of his life interest,18 but he was not allowed to prejudice his wife's inheritance in any way.19
1 Post, p. 332. The joint interest of husband and wife, called an "estate in entirety," will be considered later, p. 337.
2 Parties in contemplation of marriage may by contract fix the rights which each shall have in the property of the other during life, or which the survivor shall have in the property of the other after his or her decease. Des-noyer v. Jordan, 27 Minn. 295, 7 N. W. 140.
3 His interest is a life estate, because it may last during his life; i. e. if he should die before his wife. Co. Litt 351a (Butl & H. Notes) note 1; Babb v.
Perley, 1 Me. 6; Melvin v. Proprietors, 16 Pick. (Mass.) 1G1; Nunn's Adm'rs v. Givhan's Adm'r, 45 Ala. 370.
4 Riley's Adm'r v. Riley, 19 N. J. Eq. 229; Packer v. Wyndham, Prec Ch. 412; Sym's Case, Cro. Eliz. 33; Loftus' Case, Id. 279; Grate v. Locroft, Id. 287; Daniels v. Richardson, 22 Pick. (Mass.) 565.
5 Mattocks v. Stearns, 9 Vt 326.
6 Meriwether v. Booker, 5 Litt (Ky.) 254; Appleton, C. J., in Allen v. Hooper, 50 Me. 374; Robertson v. Norris, 1.1 Q. B. 916. But not by will, if he die first Co. Litt. 351a.
7 Co. Litt 351a; Riley's Adm'r v. Riley, 19 N. J. Eq. 229.
8 See post, p. 278.
9 Chancey v. Strong, 2 Root (Conn.) 369; Burleigh v. Coffin, 22 N. H. 118; Lucas v. Rickerich, 1 Lea (Tenn.) 726; Royston v. Royston, 21 Ga. 161; Bishop v. Blair, 36 Ala. 80; Gray v. Mathis, 7 Jones (N. C.) 502; Meriwether v. Howe, 48 Mo. App. 148. And he may assign his right Edrington v. Harper, 3 J. J. Marsh. (Ky.) 353; Bailey v. Duncan, 4 T. B. Mon. (Ky.) 256.
10 Co. Litt 351a; Burt v. Hurlburt, 16 Vt 292; Barber v. Root 10 Mass. 260. Separation does not terminate his right Haralson v. Bridges, 14 III 37; Van Note v. Downey, 2S N. J. Law, 219.
11 Decker v. Livingston, 15 Johns. (N. Y.) 479; Mattocks v. Stearns, 9 Vt 326; Fairchild v. Chastelleux, 1 Pa. St 176; Fairchild v. Ohaustelleux, 8 Watts (Pa.) 412; Dold v. Geiger's Adm'r, 2 Grat (Va.) 98.
12 2 Kent, Comm. 131; Melvin v. Proprietors, 16 Pick. (Mass.) 161; Babb v. Perley, 1 Me. 6; Bratton v. Mitchell, 7 Watts (Pa.) 113.
13 Bennett v. Bennett, 34 Ala. 53; Stroebe v. Fehl 22 Wis. 337; Spencer v. Lewis, 1 Houst (Del.) 223. 14 Stroebe v. Fehl 22 Wis. 337.