Wife's property not liable for debts of the husband, but liable for her own debts. Power of the before the marriage. Sections 170 and 171 modify the common law in two respects. They render the separate property of the wife liable and exempt the separate property of the husband. Beyond this exemption of his separate property, the liability of the husband exists-that is, he is liable to the extent of the common property.-Van Masen vs. Johnson, 15 Cal., p. 308; Packard vs. Arellanes, 17 Cal., p. 537; Kays vs. Phelan, 19 Cal., p. 128. In a suit against the husband for services rendered by the plaintiff to the wife before her marriage, judgment may be entered against both defendants, with a direction that it be enforced against the separate property of the wife and the common property of both.-Van Masen vs. Johnson, 15 Cal., p. 308; Kays vs. Phelan, 19 Cal., p. 128; Corcoran vs. Doll, 32 Cal., p. 90. 171. The separate property of the wife is not liable for the debts of her husband, but is liable for her own debts, contracted before or after marriage. NOTE.-See note to Sec. 170. 172. The husband has the management and conhusband trol of the community property, with the like absolute community power of disposition (other than testamentary) as he over property. has of his separate estate. NOTE. The title of the common property is in the husband, and he can dispose of the same (except by devise-Beard vs. Knox, 5 Cal., p. 252), as absolutely as if it were his own separate property. The interest of the wife is a mere expectancy, like the interest which an heir may possess in the property of his ancestor.Van Muren vs. Johnson, 15 Cal., p. 308. The law, in vesting in the husband the absolute power of disposition of the common property as of his separate estate, designed to facilitate its bona fide alienation, and to prevent clogs upon its transfer by claims of the wife. The law will not support a voluntary disposition of the common property with a view of defeating any claims of the wife.-Smith vs. Smith, 12 Cal., p. 216. The husband has no power to dispose of the common property by devise defeating the rights of the wife.-Beard vs. Knox, Cal., p. 252; Scott vs. Ward, 13 Cal., p. 469; Payne vs. Payne, 18 Cal., p. 301; Morrison vs. Bowman, 29 Cal., p. 349. 173. No estate is allowed the husband as tenant Courtesy and dower not by courtesy upon the death of his wife, nor is any allowed. estate in dower allotted to the wife upon the death of her husband. NOTE.-Beard vs. Knox, 5 Cal., p. 252. of wife. 174. If the husband neglects to make adequate Support provision for the support of his wife, any other person may, in good faith, supply her with articles necessary for her support, and recover the reasonable value thereof from the husband. NOTE.-Cromwell vs. Benjamin, 41 Barb., 558. This obligation is not founded merely upon a supposed agency of the wife.-Read vs. Legard, 6 Exch., p. 636; see Sykes vs. Halstead, 1 Sandf., p. 483. If the husband and wife separate by consent, and the husband, by agreement, secures to her a separate maintenance, suitable to their circumstances, he is not liable for anything furnished to her, so long as he performs such agreement.-Calkins vs. Long, 22 Barb., p. 97, and cases there cited. not liable 175. A husband abandoned by his wife is not Husband liable for her support until she offers to return, unless when she was justified, by his misconduct, in abandoning by wife. him. NOTE.-Blowers vs. Sturtevant, 4 Denio, p. 46; Mc- abandoned must 176. The wife must support the husband out of When wife her separate property when he has no separate prop-usband. erty and they no community property, and he from infirmity is not able or competent to support himself. Rights of husband 177. The property rights of husband and wife are governed by this Chapter, unless there is a marriage governed settlement containing stipulations contrary thereto. by what. settlement how 178. All contracts for marriage settlements must Marriage be in writing, and executed and acknowledged or contracts, proved in like manner as a grant of land is required to executed. be executed and acknowledged or proved. To be acknowl 179. When such contract is acknowledged or edged and proved, it must be recorded in the office of the recorded. Effect of recording. Minors may make marriage settlements Recorder of every county in which any real estate may be situated which is granted or affected by such contract. 180. The recording or non-recording of such contract has a like effect as the recording or non-recording of a grant of real property. 181. A minor capable of contracting marriage may make a valid marriage settlement. NOTE.-As to married women becoming sole traders, and their rights and liabilities as such, see Code of Civil Procedure, Secs. 1811 to 1821, inclusive. TITLE II. PARENT AND CHILD. CHAPTER I. By Birth. CHAPTER I. CHILDREN BY BIRTH. SECTION 193. Legitimacy of children born in wedlock. 195. Who may dispute the legitimacy of a child. 196. Obligation of parents for the support and education of their children. 197. Custody of legitimate child. 198. Husband and wife living separate, neither to have supe rior right to custody of children. 199. When husband or wife may bring action for the exclusive control of children. Decree in such cases. 200. Custody of an illegitimate child. 201. Allowance to parent. SECTION 202. Parent cannot control the property of child. 203. Remedy for parental abuse. 204. When parental authority ceases. 205. Remedy when a parent dies without providing for the 206. Reciprocal duties of parents and children in maintaining 207. When a parent is liable for necessaries supplied to a child. 208. When a parent is not liable for support furnished his child. 209. Husband not bound for the support of his wife's children 210. Compensation and support of adult child. 211. Parent may relinquish services and custody of child. 213. Right of parent to determine the residence of child. 214. Wife in certain cases may obtain custody of minor 193. All children born in wedlock are presumed Legitimacy to be legitimate. NOTE.-Caujolle vs. Ferrie, 23 N. Y., p. 139; Klienert vs. Ehlers, 2 Wright, Pa., p. 439; Van Aernam vs. Van Aernam, 1 Barb. Ch., p. 375; Stegall vs. Stegall, 2 Brock., p. 256; Page vs. Dennison, 1 Grant, p. 377; 5 Casey, p. 420; Phillips vs. Allen, 2 Allen, p. 453. Said Lord Langdale, in Hargrave vs. Hargrave, 9 Beav., p. 552: "A child born of a married woman is in the first instance presumed to be legitimate. The presumption thus established by law is not to be rebutted by circumstances which only create doubt and suspicion, but it may be wholly removed by proper and sufficient evidence showing that the husband was: 1. Incompetent; 2. Entirely absent, so as to have no intercourse or communication of any kind with the mother; 3. Entirely absent at the period during which the child must, in the course of nature, have been begotten; or, 4. Only present under such circumstances as afford clear and satisfactory proof that there was no sexual intercourse." And in Bury vs. Phillpot, 2 Mylne & K., p. 349, Sir John Leach, Master of the Rolls, said: "If it were proved that she (the wife) slept every night with her paramour from the period of her separation from her husband, I must still declare the children to be legitimate." To the same effect are the cases of Morris vs. Davies, 3 Car. & P., pp. 215, 427; Rex vs. Luffe, 8 East., p. 193. of children born in wedlock. Legitimacy of children' wedlock. 194. All children of a woman who has been mar born out of ried, born within ten months after the dissolution of the marriage, are presumed to be legitimate. But if during such period she marries again, and afterwards has a child, it is presumed to be her legitimate offspring by the second husband. Who may dispute the of a child. NOTE. At common law a child born more than forty weeks after the death of the husband is an illegitimate child.-Reeves' Dom. Rel., p. 402; Hargraves' Notes Co. Lit., p. 129. The civil law and the Code Civil fixed the three hundredth day as the ultimum tempus gestationis.-Dig., 38, 16, p. 11; Code Civil, Art. 312. 195. The presumption of legitimacy can be dislegitimacy puted only by the husband or wife, or the descendant of one or both of them. Illegitimacy, in such case, may be proved like any other fact. Obligation of parents for the support and education of their children. Custody of a legiti 196. The parent entitled to the custody of a child must give him support and education suitable to his circumstances. If the support and education which the father of a legitimate child is able to give are inadequate, the mother must assist him to the extent of her ability. NOTE.-Reeves' Dom. Rel., p. 412; 1 Bl. Com., p. 446. 197. The father of a legitimate unmarried minor mate child. is entitled to its custody, services, and earnings; but he cannot transfer such custody or services to any other person, except the mother, without her written consent, if she is living and capable of consent. If the father is dead, or is unable, or refuses to take the custody, or has abandoned his family, the mother is entitled thereto. Husband and wife living separato, neither to 198. The husband and father, as such, has no rights superior to those of the wife and mother, in custody of regard to the care, custody, education, and control of have supe rior right to children. |