Charles L. Burr

Common Law Interests - Statutory Modifications - Curtesy - Effect of Children - Dower - Defeat of Dower Rights - Assignment - Contractual Modifications - Mortgages

Rights and interests arising from marriage may be classified as: (1) The husband's rights during marriage; (2) the husband's rights after the death of his wife - or curtesy; (3) the wife's rights during marriage; (4) the wife's rights after the death of her husband - or dower, and (5) homestead rights. These interests are, of course, predicated upon lawful marriage. A marriage which is voidable only gives rise to the same fights and interests, if not annulled during the life of the husband.

Marriage is an ordinary civil contract, made by a man and a woman in due form of law. It differs from other legal contracts only in that when once entered into it may not be rescinded. The legality of the marriage contract, at least for the purpose of determining the rights and interests arising out of it, is to be ascertained, as with other contracts, by the law of the place where the contract was made.

At common law the husband has, by right of marriage, an estate carved out of his wife's real property, which entitles him to the rents and profits thereof, fret from the claims of his wife. He can sell and convey this estate without her consent - her signature to such a conveyance not being required - and it may be seized and sold under execution for the payment of his debts.

This estate, known as the "husband's right during coverture," continues until his, or his wife's death - or, until they are divorced - or, there is a child of the marriage born alive - whereupon this estate falls, and in its place arises an estate of curtesy. If the wife survive her husband, then she becomes repossessed, in full, of her real property and all estate therein, after his death, and, as he could convey only his estate, and his creditors can attack and sequester only the same estate, the wife's real property is not thereafter affected by any of his prior conveyances, or by the acts of any of his creditors. The wife's chattels real - that is, chattels which concern and savor of real property - become the property of the husband for certain purposes. During his life they are liable to be taken on execution for his debts; he may sell and convey them without the wife's consent, and upon her death they become his absolutely. He cannot, however, dispose of her chattels real by will, but if the wife survive, and her husband has not disposed of her chattels real during his life, she again comes into possession and ownership of her property.

As a forerunner of coming statutory modifications of the husband's rights during marriage, and as indicative of a changing public policy, there was introduced by the Courts of Equity the doctrine of the wife's equity to a settlement, by which, when the husband came into equity, for the purpose of relief with respect to his wife's real 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 first do equity."

Property thus settled upon the wife receives generally the designation "her sole and separate estate," but may conveniently be termed, "her equitable separate estate" to distinguish it from her "statutory separate estate" hereafter referred to.

It was at one time regarded as necessary that the legal title to the property, so freed from the husband's control, should be vested in a trustee, 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. 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 of the husband.

A most striking peculiarity may be noticed in the instrument vesting the property in the wife with respect to restricting her powers over it, in that it is lawful to absolutely prohibit its conveyance by her. This exception to the general rule forbidding absolute restraint on alienation being allowed in order that she may be protected from the effect of her husband's persuasion.

In England, and in some of the States of this country, in the absence of such a restraint on conveyance, the wife is free to convey or charge such estate as she may choose, while in other States it is held she has but the power of disposition given expressly by the instrument creating the estate.

The rights of the husband in property which is held by the wife for her separate use are suspended only during coverture, and, on the wife's death, he has the same right 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.

The husband's common law interest in his wife's real property and chattels real has, in recent years, either 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 her husband, is known as the wife's "statutory separate estate," and is, in reality, the child of the parent equitable rule, known as the wife's "equitable separate estate." While courts have no legislative powers, they not infrequently prepare the road upon which proper legislation must travel.