This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
At an early day, courts of equity introduced the doctrine of the wife's "equity to a settlement," by which, when the husband, or one claiming under him, his assignee or creditor, for instance, came into equity for the purpose of relief as regards the wife's property, real or personal, or jurisdiction was otherwise obtained of such property, he was compelled to make a provision out of it for the support of the wife and children, this being merely an application of the equitable maxim that he who seeks equity must do equity.13
The equity to a settlement being found to afford but imperfect protection to the wife, courts of equity in time permitted property of every kind to be settled upon the wife to her own separate and exclusive use, free from the control of her husband, and from liability for his debts.14 Property thus settled upon the wife received generally the designation of her "sole and separate estate," and may conveniently be termed her "equitable separate estate," to distinguish it from her "statutory separate estate," hereafter considered.15
11. Co. Litt. 46b, 300a, 351a: 2 Bl. Comm. 434; 2 Kent, Comm. 134; Moody v. Matthews, 7 Ves. 174; Mitford v. Mitford, 9 Ves. 99; Meriwether v. Booker, 5 Litt. (Ky.) 254; Allen v. Hooper, 50 Me. 371; Lawes v. Lumpkins, 18 Md. 334; Riley's Adm'r v. Riley, 19 N. J. Eq. 229; Barron v. Barron, 24 Vt. 375, 390.
12. Co. Litt. 351a; 2 Bl. Comm. 434; 2 Kent, Comm. 134.
13. 2 Kent, Comm. 139; 2
Pomeroy, Eq. Jur. Sec.Sec. 1114-1118; Sturgis v. Champreys, 5 Mylne & C. 97; Elibank v. Montolieu, 5 Ves. 737, 1 White & T. Lead Cas. Eq. 623; Salter v. Salter, SO Ga. 178, 12 Am. St. Rep. 249; Elliott v. Waring, 5 T. B. Mon. (Ky.) 338, 17 Am. Dec. 69; Wiles v. Wiles, 3 Md. 1, 56, Am. Dec. 733; Duvall v. Farmers Bank, 4 Gill & J. (Md.) 282, 23 Am. Dec. 558; Page v. Estes, 19 Pick. (Mass.) 269; Kenny v. Udall, 5 Johns. Ch.
It was at one time regarded as necessary that the legal title to the property so freed from the husband's control be vested in trustees, and this is the regular mode in which such a provision for the wife is made; 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.16 The words used most frequently to create this estate are "sole and separate use," but any language
(N. Y.) 464; Van Epps v. Van Deusen, 4 Paige (N. Y.) 64, 25 Am. Dec. 516; Barron v. Barron, 24 Vt. 392.
14. 2 Kent, Comm. 162; 2 Story, Eq. Jur. Sec. 1378 et seq.; 2 Perry, Trusts, c. 22; 2 Pomeroy, Eq. Jur. Sec.Sec. 1098-1110; Williamson v. Yager, 91 Ky. 282, 34 Am. St. Rep. 184, 15 S. W. 660; Botts v. Gooch, 97 Mo. 88, 10 Am. St. Rep. 286, 11 S. W. 42; Richardson v. De Giverville, 107 Mo. 422, 28 Am. St. Rep. 426, 17 S. W. 974; Bank of Greensboro v. Chambers, 30 Gratt. (Va.) 202, 32 Am. Rep. 661.
15. The word "estate" is here used, it is to be observed, in the sense of property, as when we speak of a decedent's "estate," a use of the word which is to be distinguished from its use to signify a certain quantum of ownership measured by duration.
16. 2 Story, Eq. Jur. Sec. 1380; Williams, Real Prop. 314; Ben-net v. Davis, 2 P. Wms. 316; Jones v. Clifton, 101 U. S. 225, 25 L. Ed. 908; Harkins v. Coalter, 2 Port. (Ala.) 463; Riley v. Riley, 25 Conn. 154, 161; Fears v. Brooks, 12 Ga. 195; Long's Adm'r v. White's Adm'r, 5 J. J. Marsh (Ky.) 226; Brandau v. McCurley, 124 Md. 243, L. R. A. 1915C 767, 92 Atl. 540; Wood v. Wood, 83 N. Y. 575; Boykin v. Ciples, 2 Hill (S. C.) 200, 29 Am. Dec. 67; Hamilton v. Bishop, 8 Yerg. (Tenn.) 33, 29 Am. Dec. 101; Travis v. Sitz, 135 Tenn. 156, L. R. A. 1917A, 671, 185 S. W. 1075.
[Sec. 206 is sufficient, provided it shows a clear intention to exclude all control by the husband.17
The instrument vesting the property in the wife may restrict her powers over it, and may even absolutely prohibit its alienation by her, this exception to the general rule forbidding absolute restraints on alienation being allowed in order that she may be protected from the effects of the husband's persuasion.l8 In England and in some of the states of this country, in the absence of such a restraint on alienation, the wife is free to convey or charge such estate as she may choose. In other states, a different view is taken, and the wife is held to have such powers of disposition only as are expressly given by the instrument creating the estate.19 The power of a married woman to make a conveyance of property which is held to her separate use is furthermore usually restricted by the general requirement that the consent of her husband must be given in writing to any conveyance by her of her real property.20
The rights of the husband are suspended only during coverture, and, on the wife's death, he has the same rights 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, or by some agreement to that effect,21 or unless she
17. 2 Perry, Trusts, Sec.Sec. 648-650; 1 Pomeroy, Eq. Jur. Sec. 1108; Stewart, Husband & Wife, Sec. 200: 2 Story, Eq. Jur. Sec.Sec. 1381-1384; Fears v. Brooks, 12 Ga. 195.
18. 2 Perry, Trusts, Sec. 646; 2 Pomeroy, Eq. Jur. Sec. 1107; Brandon v. Robinson, 18 Ves. 434; Gray, Restraints, Alien Prop. Sec.Sec. 140, 272.
19. 3 Pomeroy, Eq. Jur. Sec.Sec. 1104, 1105; Stewart, Husband & Wife, Sec.Sec. 20? 205, 208, 344; 2 Perry, Trusts, Sec.Sec. 661, 665; Taylor v.
Meads, 4 De Gex, J. & S. 597; Ewing v. Smith, 3 Desaus. (S. C.) 417, 5 Am. Dec. 557, and note; Thomas v. Folwell, 2 Whart. (Pa.) 11, 30 Am. Dec. 230.
20. 2 Perry, Trusts, Sec. 656; Schouler, Domestic Relations, Sec. 133; 2 Story, Eq. Jur. Sec. 1391. See post, this section, note 29.
21. 2 Pomeroy, Eq. Jur. Sec. 1110; Stewart, Husband & Wife, Sec. 214; Ogden v. Ogden, 60 Ark. 70, 46 Am. St. Rep. 151, 28 S. W. 796; Payne v. Payne, 11 B. Mon. (Ky.)
Sec. 207 ]
Estates Arising From Marriagb disposes of the property by will, in those jurisdictions where her right so to dispose of it is recognized.22