The Central Law Journal.

ST. LOUIS, AUGUST 24, 1888.

CURRENT EVENTS.

SEPARATE ESTATES-SOLE TRADERS.-It is, of course, well known that the severe simplicity of the common law, with respect to the property of married women and their disabilities in general, has been greatly modified by modern legislation. The ancient rule might be thus concisely stated: "All that is hers is his, and all that is his is his own." The wife, howsoever wealthy before her mar riage she might be, after that event could own nothing except her paraphernalia, originally merely wearing apparel, but gradually increased by the courtesy of courts so as to include a respectable modicum of the necessaries and luxuries of life.

Our modern improvements on the old law on this subject are salutary, and many of them at least judicious. In some respects, however, the course of legislation on marital relations is liable to criticism. There has been too much of it; it has not been always well-considered; statutes are sometimes obscure and from that fact have resulted much uncertainty in the interpretation and much complication in the administration of the law. Legislatures have perhaps gone too far in according to married women the largest liberty in the disposition of their estates. If the matter were res integra we should say that when not otherwise provided by ante-nuptial settlement or testamentary disposition, the property of married women should in no case be alienated at all, except under the authority of a court of equity and then only for reinvestment under the supervision of that court. The corpus of such estates should be kept intact, although its income might well be used if necessary in the support of the family. It is a matter of common observation that whenever the lands of married women are sold, the proceeds very often disappear in consequence of speculation or improvidence. And in no event, and under no circumstances, should a separate estate be charged as security for the debts of the husband or of any VOL. 27-No. 8.

body else. The law should recognize the principle that such estates constitute a reserve fund to be drawn upon only in cases of grave disaster and absolute necessity, and should not be hazarded in attempts to make a fortune by trade or speculation. By the common law, and common sense besides, it is the duty of the husband to support his family; if he can do so and also make a fortune it is all very well, but neither law nor justice should permit him to expose to the perils of trade or speculation, property which he has not acquired either by inheritance or labor.

We think, therefore, that the general rule of the law should be that the estates of married women should be inalienable except under the supervision of a court of equity; there are no doubt many cases in which policy would require a relaxation of the rule, but this necessity can usually be foreseen and provided against by suitable ante-nuptial settlements.

We have already expressed the opinion that under no circumstances should the separate estate of the wife be charged as security for the debts of her husband or any other person, and we may add that no married woman should be permitted without judicial sanction to charge her separate estate with any debts of her own. In some of the States married women are permitted to execute notes stating on the face of them that the note is a charge upon the maker's separate estate, and this irrespective of the nature and value of the consideration. This operates as a mortgage of her whole estate without even the futile formality of a privy examination.

If the object of this line of legislation is to secure to married women the enjoyment of their property, and its security against the improvidence of their husbands, it very imperfectly answers its purpose, and it must be added that it seems to have very greatly increased the litigation growing out of the domestic relations.

As to sole traders, that is a matter which can best be adjusted by an ante-nuptial settlement, although in a few cases we suppose the career of sole trader, not having been contemplated at the time of the marriage, was not provided for at that time. This line of business frequently occasions litigation, and out of it sometimes grow frauds of a glaring description. We observed recently a

rather notable instance of this character which came before an intermediate court in New York. The husband had been a partner in a trading firm. Upon its dissolution the wife took the business, engaged her husband to manage it and agreed to pay him $1,600 per annum as his salary, besides supporting the family. At the end of seven years the wife was insolvent, made an assignment and preferred her husband as a creditor to the amount of $7,000 arrears of salary. The matter came into court, an account was taken by a referee who found that the expenses of the family had been about $2,500 a year, which, added to the salary of the husband, made about $4,000 a year that he received for services that the referee found to be worth about

$1,000 a year. The court held that as it was his duty to support the family the wife's contract to do so was nudum pactum and void, so that in effect the husband had received in seven years $21,000 for services that were worth no more than $7,000.

We have no doubt that under the operation of these statutes many persons other than married women have suffered from frauds of this description. All statutes of this character are in derogation of the common law and by a well known and universally accepted principle should be subjected to a strict construction. So far as they tend to secure married women against the improvidence or misfortunes of their husbands, their operation is salutary and benificent, but so far as by removing the disabilities imposed at common law upon married women, they are enabled to alienate or charge their estates at pleasure, and without due consideration or any legal protection, we think the movement is in the wrong direction.

with a remainder over to his heirs at law. The widow loaned certain amounts of money to one Hartford and took his note therefor. After her remarriage and death the note was found in her possession, and an action was brought by the administrator with the will annexed of her first husband to recover possession of the note as part of the assets of the estate in his charge. The claim was resisted upon the ground that, under the will of her first husband, the widow had the power to dispose of the personal property of the testator, and in making the loan to Hartford and taking his note therefor she had exercised that power. The court sustained this defense, saying:

"The material provisions of the will are these: Item 3. I give and devise to my beloved wife, Ealy A. Stearman, all the residue of my property, rights, credits, or choses in action of every kind that I may own or be entitled to at the time of my decease. Item 4. I further direct that whatever property is left undisposed at the death of my wife shall descend to my son, George Stearman, and, in case of his death, then to my grandson, William Stearman.' The will at least gave to the testator's widow an absolute power of disposition, if it did no more, and the administrator had no right to the note in controversy. Even if the will gave the widow no more than a life-interest with a power of disposition, the power was effectually exercised without referring to the will.”’3

2 Van Gorder v. Smith, 99 Ind. 404, and cases cited; Allen v. Craft, 109 Ind. 476; 9 N. E. Rep. 919; Fullenwider v. Watson, 113 Ind. 18; 14 N. E. Rep. 571, and authorities cited.

3 South v. South, 91 Ind. 221; 46 Am. Rep. 591; Downie v. Buennagel, 94 Ind. 228; Silvers v. Canary, 109 Ind. 267; 9 N. E. Rep. 904.

riages, together with a full collection of the adjudications of the court upon this vexed question.

2. Governed by the Lex Loci.—The validity of a marriage is to be determined by the law of the place where it was celebrated,1 and all rights dependent on the nuptial contract are to be governed by the lex loci contractus;2 but the mode of determining whether the lex loci was complied with, is necessarily regulated by the lex fori.3

Under the law of Wurtenburg, a citizen cannot contract a valid marriage but with the consent of the king. A, a citizen of Wurtenburg, came to America, and in Illinois, married B. The marriage was a legal one in Illinois. The husband and wife returned to Wurtenburg, and became domiciled there, and after a trial, the marriage was declared a nullity. A died, leaving real estate in Illinois, in which it was held that B had no rights.*

It has been said that a marriage contract made in France, and not repugnant to New York laws, will be recognized as a valid contract there, and interpreted according to the French laws.5

Where a foreign statute upon the subject of marriage is in direct conflict with our established policy, it will not be regarded as binding in our courts. Thus, it was held during the days of slavery, that a statute of a slave State forbidding slaves to marry, would not be regarded by our courts where the marriage is good at common law."

Where parties, married in a State of the Union, enter into an anti-nuptial contract with reference to the laws of France, as their intended domicil, those laws were held to govern in the construction of the contract, so far as their rights of personal property were concerned.8

A woman entitled to an estate in personalty married in Georgia before the passage of the

1 Phillips v. Gregg, 10 Watts. (Pa.) 158; s. c. 35 Am. Dec. 158; Crosby v. Berger, 3 Edw. Ch. (N. Y.) 538; Smith v. Woodworth, 44 Barb. (N. Y.) 198.

2 Decouche v. Savatier, 3 Johns. Ch. (N. Y.) 190; s. c. 8 Am. Dec. 478.

3 Caujolle v. Ferrie, 26 Barb. (N. Y.) 177; Patterson v. Gaines, 6 How. (U. S.) 550.

Roth v. Roth, 104 Ill. 35; s. c. 44 Am. Rep. 81. 5 Crosby v. Berger, 3 Edw. Ch. (N. Y.) 538.

6 Philadelphia v. Williamson (Pa.), 30 Leg. Int. 45;

s. c. 5 Leg. Gaz. 42.

7 People v. Cooper, 8 How. (N. Y.) Pr. 288.

Le Breton v. Miles, 8 Paige Ch. (N. Y.) 261. See Ordronaux v. Rey, 2 Sand. Ch. (N. Y.) 33.

act of 1866, giving married women a separate estate. After 1866 she removed to Alabama, not carrying the property with her, and her husband never exercising any marital rights over it. Upon her death interstate in Alabama, it was held that the property passed under the general law of descents of that State, and was not a statutory trust under the Alabama law, as might have been the case had the property been carried there. And it has been held that the rights of a wife, as creditor of her husband, under the law of France, where the marriage was contracted, continue, and attach to the property of the husband, where he abandons her, and dies domiciled in New York. 10

In New York marriage is simply a civil contract, and if a resident thereof contracts marriage per verba de presenti in a foreign country, with another competent person, with a view to a further residence in New York, the presumption is in favor of its validity."

3. Capacity to Contract Marriage.—As a general rule, the capacity or incapacity to marry, depends on the law of the place where the marriage is contracted, and not on that of the domicil of the parties. 12

a. Theories Regarding.-There are three theories regarding capacity to contract marriage, to-wit: First. That matrimonial ca

9 Grote v. Pace, 71 Ga. 231.

10 Bonati v. Welsch, 24 N. Y. 157. See Vail v. Vail, 7 Barb. (N. Y.) 226.

11 Hynes v. McDermott, 7 Abb. (N. Y.) N. C. 98. H, a native-born citizen of the United States, went to England in the spring of 1871, and there, prior to May, 1871, commenced an illicit intercouse with a woman, an English subject. In May 1871 he gave her a ring, saying that if she would be true to him he would consider her his wife as much as if they had been married in church, and she accepted the ring on these conditions, and from that time until his death he openly lived and cohabitated with her in England, in the apparent relation of husband and wife, until his death in 1874, introducing her in society as his wife, and having children by her. In June 1871 he took her temporarily to Paris, and there introduced her as his wife and there cohabitated with her. On the foregoing facts in the absence of proof of a marriage in England according to the local law, and of the marriage law of France, it was held, (1) that the illicit origin of the intercourse in England, rebutted the presumption of marriage which would otherwise have arisen from the cohabitation and its circumstances. But, (2) that the jury was warranted in finding that there was the requisite consent in Paris to establish a valid marriage according to New York law, and that the children of such marriage were entitled to inherit their fath r's real estate in New York. Hynes v. McDermott, 91 N. Y. 451; 8. C. 43 Am. Rep. 677.

12 Ponsford v. Johnson, 2 Blatchf. C. C. 51.

pacity is determined by the lex loci contractus;13 Second. That marital capacity is to be determined by the lex domicilii;14 Third. That matrimonial capacity in home marriages is to be determined by the home law; and as to marriages abroad, by those general principles which concede marital capacity to all persons of puberty, excepting only those affected by the impediments of incest or polygamy.15

4. Marriage of Person Divorced for Adultery. It has been held, but on this point there is much conflict of opinion, that although a person divorced from a first wife is

13 Ponsford v. Johnson, 2 Blatchf. C. C. 51; Story Conf. L. §§ 110-112; Bishop, Mar. & Div. ch. 21; Ferguson, Mar. Div. 397-399. To this theory Mr. Wharton interposes the following objections, to-wit; (1) "that it is admitted to be subject to exceptions which destroy its applicability to the majority of litigated questions. Thus marriages which by our laws are incestuous, are not validated by being performed in another land where they would be lawful, and so the converse is true, that the marriage in England of a man with his decased wife's sister, would be recognized as valid in such of our American States as hold such a marriage to be legal. Nor, notwithstanding the observations frequently thrown out that a marriage bad by the lex loci contractus is bad everywhere, is it believed that an American court will ever hold a marriage contract abroad to be illegal, simply because the consent of the parents was withheld." (2) "The risk to which it exposes marriages, now not infrequent, of persons traveling abroad. Some defect in the observance of local law, of which the parties had no thought, would, if this view obtain, invalidate the marriage and illegitimatize the offspring. But a more serious objection would be the validity which would thus be given to Chinese and Mohammedan polygamy. To mantain the authorativeness of the lex loci contractus in this respect would be to license polygamy wherever Chinese and Mohammedan imigration exists." Whart. Conf. L. § 160.

14 See Lawrence's Wheaton, 172; Westlake, Priv. Int. Law, § 346; Phillimore Int. Law IV, 284; Warrender v. Warrender, 9 Bligh. 89; s. c. 2 Clark & Finn. 488; Brook v. Brook, 7 Jur. N. S. 422; 8. c. 9 H. L. Cas. 193; Le Breton v. Nouchet, 3 Martin (La.), 60. But see, Stevenson v. Gray, 17 B. Mon. (Ky.) 193; Ponsford v. Johnson, 2 Blatchf. C. C. 51. There are said to be two serious objections to adopting this doctrine in the United States; because (1) "it would make the validity of the marriages in the United States, of natives of other countries, depend upon the question whether such person had acquired a domicil in the United States; for if they had not, they would be governed by the laws of their foreign domicil, with which, especially in the case of minors, the difficulty in the way of a compliance would be almost inseparable. The mischief wrought by the adoption of such a principle would be very great. Few aliens, who marry in this country, could be sure that they were legally married; few descendants of such aliens could be sure of their legitimacy. (2) Another objection to such adoption of the law of domicil is that it would internatinnally legalize in the United States polygamous marriages. Whart. Couf. L. § 164.

15 Whart. Conf. L. § 10-128-132-165.

rendered by the law of the place incapable of contracting a second marriage, yet that if he enters into a contract of marriage in another State where the same disability does not exist, the marriage will be valid. 16

In New York, where a former marriage has been dissolved for the adultery of the husband, he cannot contract a second marriage in that State during the life time of his former wife, no matter where the first marriage was contracted or dissolved." And were a husband who was divorced in New York on the ground of his adultery, goes into another State, although for the purpose of evading the New York laws, and there contracts a second marriage, during the life time of his former wife, and immediately returns to, and resides within that State, such second marriage is held by the New York courts to be void. 18

Yet the New York statute prohibiting the second marriage of one against whom a divorce has been granted for adultery, during the life of the other party to the marriage, and declaring such second marriage void, does not invalidate a second marriage entered into in Connecticut, where it is valid, the act being in the nature of a penalty, and not in express terms showing the legislative intent to render such marriage entered into in another State, void; and this although the parties, both being residents of New York, went to Connecticut for the purpose of evading the law of New York. 19

Thus, where a wife procured a divorce in New York for adultery, and the husband was prohibited by the decree from remarrying during her life, and husband afterwards remarried in New Jersey during her life, and returned with the second wife and resided in New York, and they had a child born in New York. The New Jersey statute enacts that

16 See Webe's Estate, 1 Tuck. (N. Y.) 372; West Cambridge v. Lexington. 1 Pick. (Mass.) 505; s. c. 11 Am. Dec. 231; Decouche v. Savatier, 3 Johns. Ch. (N. Y.) 190; s. c. 8 Am. Dec. 478; Dickson v. Dickson, 1 Yerg. (Tenn.) 110; s. c. 19 Am. Dec. 444; Ponsford v. Johnson, 2 Blatchf. C. C. 51; Conway v. Blazley, 3 Hagg. 639.

17 Smith v. Woodworth, 44 Barb. (N. Y.) 178.

18 Marshall v. Marshall, 2 Hun (N. Y.), 238; s. c. 4 T. & C. (N. Y.)449; 48 How. (N. Y.) Pr. 57. But see, Van Voorhis v. Brintnall, 86 N. Y. 18; s. c. 40 Am. Rep. 505; Thorp v. Thorp, 90 N. Y. 602; 8. c. 43. Am. Rep. 189.

19 Van Voorbis v. Brintnall, 86 N. Y. 18; s. c. 40 Am. Rep. 505; reversing s. c. 23 Hun (N. Y.), 264; Thorp v. Thorp, 90 N. Y. 602; s. c. 43 Am. Rep. 189.

"all marriages, where either of the parties shall have a former husband or wife living at the time of such marriage shall be invalid, and the issue thereof shall be illegitimate ;" but does not prohibit remarriage by divorced parties. It was held, that the child would inherit in New York.20 And where a man obtainedļa divorce in Massachusetts for his wife's adultery, the law of that State prohibiting remarriage under such circumstances, and she remarried in New Hampshire, the law of which State simply prohibits the marriage of one having a former wife or husband living," the court held the marriage lawful, and that it should be so recognized in New York. 21

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5. Marriage in Foreign State to avoid Domiciliary Law.-According to the ruling in some of the cases it would seem that where the parties go abroad for the purpose of evading the marriage law of their domicil, that the marriage thus contracted is void;22 but the prevailing rule seems to be that where parties resident in one State, to avoid the laws of their place of domicil go to another State and are married, the marriage, if valid in the country where celebrated, will be held to be valid both in America23 and England,24

22 See Williams v. Oates, Ired. (N. Y.) L. 535; Marshall v. Marshall, 2 Hun (N. Y.), 238; S. c., 4 T. & C. (N. Y.) 449; 48 How. (N. Y.) Pr. 57; Stevenson v. Gray, 17 B. Mon. (Ky.) 193; Putnam v. Putnam, 8 Pick. (Mass.) 433; Dupre v. Boulard, 10 La. An. 411.

23 Decouch v. Savatier, 3 Johns. Ch. (N. Y.) 190; s. c. 8 Am. Dec. 478; Dickson v. Dickson, 1 Yerg. (Tenn.) 110; Putnam v. Putnam, 8. Pick. (Mass.) 433; West Cambridge v. Lexington, 1 Pick. (Mass.) 505; s. c. 11 Am. Dec. 231; Sutton v. Warren, 10 Metc. (Mass.) 451; Stevenson v. Gray, 17 B. Mon. (Ky.) 193; Dannelli v. Dannelli, 4 Bush. (Ky.) 61; Medway v. Needham 16 Mass. 157, 161; s. c. 8 Am. Dec. 131; Pearl v. Hausborough, 9 Humph. (Tenn.) 426; Phillips v. Gregg, 10 Watts (Pa.), 158; Morgan v. McGhee, 5 Humph. (Tenn.) 13; State v. Patterson, 2 Ired. (N. C.) L. 346; 8. c. 38 Am. Dec. 609; Ponsford v. Johnson, 2 Blacthf. C. C. 51; Van Voorhis v. Brintnall, 86 N. Y. 18; s. c. 40 Am. Rep. 505; Thorp v. Thorp, 90 N. Y. 602; s. c. 43 Am. Rep. 189; Moore v. Hegeman, 92 N. Y. 521; s. c. 44 Am. Rep. 408. But see. Marshall v. Marshall, 2 Hun (N. Y.), 238; s. c. 4 T & C. (N. Y.) 449; 48 How. (N. Y.) Pr. 52.

24 See Compton v. Bearcroft, Bull. N. P. 114; Conway v. Beazley, 3 Hagg. Eccl. 639; Harford V. Morris, 2 Hagg. Consist. 429, 430, 443, 444; Robinson v. Bland, 2 Burr. 1077, 1080; Steele v. Braddell, 1 Milw. Consist. 1; Simonin v. Mal

and if invalid there must be regarded as invalid everywhere else.25

6. Incest and Polygamy.-To this general rule there are four exceptions, to-wit: (1) where the marriage is incestuous; (2) where it is polygamous; (3) where it is prohibited by the positive law of a country; and (4) where it is celebrated in a foreign country by subjects entitling themselves under special circumstances to the benefit of the laws of their own country.27

This last class of exceptions prevail where marriage is contracted and celebrated in a foreign country, where, as Judge Story puts it, there is a local, necessity from the absence of laws, or from the presence of prohibitions or obstructions in a foreign country, not binding upon other countries, or from peculiarities of religious opinion and conscientious scruples, or from circumstances of exemption from the local jurisdiction;" marriages will be allowed to be valid according to law of the native or fixed actual domicil. 28

Incest and polygamy being prohibited by Christianity, against the principles of good government and public morals, such marriages are recognized and enforced nowhere throughout Christendom.29

lac, 2 Lw. & Tr. 67; Rex v. Lally, 1 Russ & Ryan, 237; Warrenden v. Warrenden, 9 Bligh 89; Shaw v. Gould, L. R., 3 H. L. 55; Shaw v. The Attorney-General, L. R. 2 P & D. 156; Brook v. Brook, 7 Jur. N. S. 422; s. c. 9 H. L. Cas. 193; Kent v. Burgess, 11 Sim. 361.

25 See Medway v. Needham, 16 Mass. 157; s. c. 8 Am. Dec. 131; Putnam v. Putnam, 8 Pick. (Mass.) 433; West Cambridge v. Lexington, 1 Pick. (Mass.) 506; s. c. 11 Am. Dec. 241; Ryan v. Ryan, 2 Phil. Ecc. 332; Dalrymple v. Dalrymple, 2 Hagg. Consist. 54; Ruding v. Smith, 2 Hagg. Consist. 390, 391; Scrimshire v. Scrimshire, 2 Hagg. Consist. 395; Monro v. Saunders, 6 Bligh. 473; Ilderton v. Ilderton, 2. H. Black, 145; Middleton v. Janverin, 2 Hagg. Consist. 437; Lacon v. Higgins, 3 Stark, 178; Kent v. Burgess, 11 Sim. 361.

26 These prohibitions apply only to the subjects of the country in which the laws are enacted. See 2 Kent Comm. 93; 1 Black Comm. 226; Code Civil of France, Art. 170; Merlin Repert. Loi. § 6, N. 1.

27 1 Burge, Comm. on Col. & For. Law, Ch. 5, § 3, p. 188.

28 Story. Conf. L. § 118, p. 161. See Loring v. Thorndike, 5 Allen (Mass.) 257; Lautour v. Teesdale, 8 Taunt, 830; s. c. 2 Marsh. 243; Ruding v. Smith, 2 Hagg. Consist. 371, 384, 385,386; King v. Inhabitants of Brampton, 10 East 282; Harford v. Morris, 2 Hagg. Consist. 432.

29 See Wall v. Williamson, 8 Ala. 48; Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460; s. c. 22 Am. Dec. 41; Sutton v. Warren, 10 Metc. (Mass.) 451; Greenwood v. Curtis, 6 Mass. 378; s. c. 4 Am. Dec. 145; Swift v. Kelly, 3 Knapp 358, 379: Hyde v. Hyde, L. R. 1 P. & D. 130; 2 Kent, Comm. 81; 1 Bl. Comm. 436; 1 Burge, Comm. on Col. & For. Law, pt. 1, Ch. 5, § 83, pp. 188