of taking seduction as the time-honored appendage to breach of promise and other collateral suits,' it seems fitter, as some of our States now provide by law, to make seduction a distinct and independent ground of action. Where, too, a man, whether under promise to marry or not, gets a woman with child, she should have some sort of legal recourse for the child's sake, if not her own. In this latter case, and indeed in the former, a criminal magistrate will feel that the law does its best when, by a judicious exercise of influence, he can prevail upon the guilty pair to unite in marriage; for thus the lesser scandal is permitted in order to avoid the greater. I JAMES SCHOUler. Kelley v. Riley, 106 Mass. 339; Williams v. Hollingsworth, 6 Baxt. 12; Leavitt v. Cutler, 37 Wis. 46; Sauer v. Schulenberg, 33 Md. 288; Sheahan v. Barry, 27 Mich. 217. 2 See Cates v. McKinney, 48 Ind. 562. MARRIED WOMEN'S STATUTES-WIFE'S REAL ESTATE. I. Introduction. II. Husband's Right to Curtesy. III. Conveyances by Wife - Acknowledgments. Conveyances by Wife to Husband. Agreements to Convey-Charging Wife's Separate Estate. IV. Covenants - Estoppel as to Married Women. Changes effected. I. The consideration of the changes produced in the law by the various married-women's statutes, if at all in detail, carries one over so wide a territory, where the paths diverge and intersect each other in so many instances, that it is a matter of extreme difficulty to give anything like a complete, and at the same time compact and intelligible, description of them. In the limits of a REVIEW article only the leading outlines can be noticed. For convenience sake, it is proposed to divide the subject, and to consider in this number the effect of those statutes on the real estate of married women, leaving what is probably the more interesting, and certainly the more troublesome investigation, that of their effect on personal property, the rights and liabilities of married women as sole traders, and the changes in the law of torts, for a later day. The history of these statutes, and their value from the stand-point of social science, are ably set forth in an article by the Hon. Henry Hitchcock, in a preceding number of the REVIEW. The object of this article is simply to point out the general course of adjudication. The common law offers a compact and symmetrical system of laws on the relation of husband and wife, based on the superiority of the former as the head of the family. Its features are well known to the profession. Under it the husband and wife became one person in law. Being such, the wife's debts antecedent to marriage became the debts of the husband, her personal property his, and he might reduce her choses in action to possession, when they became his. He could not grant anything to her, or enter into any agreement with her. "Her very being or legal existence was suspended during the marriage, or at least incorporated and consolidated into that of the husband." She could not enter into any contract, make a will, sue or be sued alone. As to her real estate, her seisin became his, and thus he was seized in jure uxoris; but his interest therein terminated when death dissolved the marriage tie, unless she had had issue by him, in which case he was tenant for his own life by the curtesy, as it was called. The doctrine of trusts in equity gave married women greater power over their property and secured it to their use. Under it a wife might enjoy the profits of her estate, secure from the debts and liabilities of her husband, and freed from his control and management, and she might dispose of the same without his concurrence. But much turned on the terms of the settlement. The power of appointment by writing to take effect during the life of the wife, or in the nature of a will after her death, was much like the happening of any other contingency limiting the estate, and considered consistent with her being sub potestate viri. Equity courts, however, whilst to some degree controlled by the legal status of the wife, under the well-known maxim, Equitas sequitur legem, so far took away the liability of her property to the husband's debts, freed it from his control, and left it in the power of the wife, and such scope was given to provide for all emergencies, that it was probably the general lack of settlements, and the unwillingness to insist upon them when marriage was contemplated, more than anything else, that led to the various statutes now in force. The common-law rule had long been felt to be harsh. Nothing shows it more clearly than the course of equity decisions itself. But, if harsh in the past, it is much more so in a state of society like the present. The demands of modern civilization often give woman the laboring oar. In many cases the support of the family devolves upon her. Often, to make her earnings the property of her husband, who may be only a useless drone to be supported, and to render liable to his debts the only fund for the maintenance of helpless children, is felt to be such a hardship, and indeed such an act of injustice, that greater powers and freedom, as these statutes evince, have been considered only her rightful due. Thus they are in part remedial. But they are also in derogation of the common law. No relation extends in its operations so far, and bears upon and affects the rights of third persons so much, as that of husband and wife. It is at the very foundation of society. Changes in the legal status of man and woman in the marital relation therefore disturb the whole body of the laws, and it is hard in advance to predict their full consequences. To many persons the common-law doctrine seems to be the only one consistent with the stability of domestic relations and well-regulated society. And yet the civil law is clearly as compatible with both. But, as none of the statutes attempt to introduce the civil law, and only modify the common law, the courts have to exercise great caution in construing them, lest they introduce confusion. The following rules therefore obtain, viz.: So far as they free the wife's property from liability to her husband's creditors and preserve it as a fund for the heirs, the statutes are remedial; but so far as they tend to deprive the husband of his curtesy, or enable the wife to alienate her property, they are strictly construed. But this will be more apparent as we proceed.1 See, as to the construction of these statutes, besides the authorities cited, post. How far remedial: Diver v. Diver, 6 Smith (Pa.), 106; Power v. Les II. As to the husband's right to curtesy. This difference, among others, existed between curtesy and dower: that the husband might have a right of curtesy in trust estates, whilst legal seisin was necessary to support dower. The reasons for this distinction will not here be touched upon, but only some of the rules governing the courts in the construction of settlements to the wife's separate use, mentioned by way of proper illustration of those obtaining in construing the meaning of these statutes. The general doctrine is thus stated: "Real estate may be limited to the separate use of the wife so as not to exclude entirely the husband's marital right; and unless his marital right be wholly excluded, he is not necessarily excluded from being tenant by the curtesy." This is admitted to be the true test, but its application has been a matter of great difficulty, and the decisions of the courts have not been uniform. For example, in the case of Moore v. Webster, supra, it was held that the wording of the will-"to hold," etc., "independently of any husband or husbands she or they may have, and free from his and their control and liabilities, and to be assigned and disposed as she or they may think fit, by any deed or will in writing"-operated as a total exclusion of the whole marital interests of the husband, and his claim of curtesy was denied. 2 So, in Hearle v. Greenbank, a previous case decided by Lord Chancellor Hardwicke, it had been held that a conveyance to trustees for the sole and separate use of a married woman, free from the control of her husband, and with power of disposing of the same by deed or will, excluded all ter, 17 How. Pr. 413; Goss v. Cahill, 42 Barb. 310. How far enabling : Bergeys' Appeal, 10 Smith (Pa.), 408; Ratcliffe v. Dougherty, 24 Miss. 181; Lee v. Bennett, 31 Miss. 119. See also Berley v. Rampacher, 5 Duer, 183; Hurd v. Cass, 9 Barb. 366; Brookings v. White, 49 Me. 479; Edwards v. Stevens, 3 Allen, 315; Lord v. Parker, 3 Allen, 127; Eckert v. Reuter, 4 Vroom, 266; Perkins v. Perkins, 62 Barb. 531. 1 Moore v. Webster, L. R. 3 Eq. 267. 2 3 Atk. 716. |