CHAPTER VII.

THE LAWS RESPECTING FEMALES.

Their rights and disabilities, their real estate, dower, &c.

Females and Males, under the age of twenty-one, in the language of the law, are denominated infants, and in common speech, minors.

By the common law and by statute, males, at the age of fourteen, and females at the age of twelve, are capable of choosing guardians, and by the common law may then consent or disagree to marriage. By statute, both sexes have a capacity to dispose of their personal estate by will, at the age of seventeen; and by the common law, at the same age, a male may be an executor, and a female an executrix. By common law and by statute, at twenty-one, both males and females become of full age, are liberated from parental power, and are free.

By marriage, the husband and wife, (in law language, they are usually called Baron and Feme,) become one person in contemplation of law; the existence of the wife being merged in that of the husband.

The personal property or chattels personal of the wife, and in her possession at the time of the marriage, instantly vest in the husband. He may use and dispose of them without her consent, and give them away by will. If he never disposes of them, they will go to his executors, though she survives him.

As to the real estate of the wife, at the time of the marriage, the husband acquires a right to the use of all the land or real estate of the wife during her life; and if they have a living child, and he survives her, then during his own life, as tenant by the curtesy. But the wife always retains the fee; the husband can not dispose of it, unless she joins in the deed, and if she does not, upon her death it will descend to her heirs.

The husband does not acquire by the marriage, an absolute title to the choses in action of the wife, such as bonds, bills or notes, or mere rights of action; but he has an absolute

1

right without her consent, to sue for, collect, and reduce them into possession; but if he fails to do so during life, his right is barred by her death, and they will go to her heirs; and if she survives him, and they remain uncollected, they will remain to her absolutely.

The husband acquires the same right to the estate of the wife accruing after marriage, excepting her choses in action, and as they are considered in law as one person, these immediately vest in the husband, and he can recover them in his own name; and if she survives him they will not go to her, but to his executors, though he has not reduced them to possession.

In respect to contracts made between the husband and wife, prior to their marriage, the general rule is, that all which are to take effect during the coverture, or continuance of marriage, are annulled by the marriage, but all which are to take effect after the dissolution, are valid and binding on the husband.

As the husband has the control of the person and estate of the wife, it is reasonable he should be charged with all her legal liabilities; and he is bound to pay her debts contracted before marriage, though he received no estate by her, and a suit can be maintained against them jointly. But the debt must be collected, or judgment obtained for it in the life time of the wife, or if she dies, the husband is exonerated. If the wife survives the husband, she is personally liable for all her debts contracted before her marriage, not collected or secured by judgment against her husband.

The husband is liable for the torts or trespasses of the wife, committed before or after the marriage, if prosecuted against both. In case of his death before judgment, she alone is liable.

If the wife be injured in person or property, she and her husband must join in an action for redress; but she can bring no action without his concurrence, and in his name as well as in her own.

A woman may be punished for crimes committed by her, as if she was single. She may be excused for small offenses in company with him, or by his coercion; but for the higher crimes, his presence or coercions will not excuse her, and she may be indicted and punished separately.

In trials of any sort, they are not, as a general rule, to be allowed to be evidence for or against each other.

From the nature of the marriage connection, it is the duty of the husband to provide for the maintenance of the wife, according to her rank and condition in life. If he fails to do so, she may bind him by contract for necessaries for such maintenance, even without his assent. She can not, for any other purpose, by her own authority, make any contract obligatory on herself or on him. The husband may give her an express power to contract for him, or his assent, express or implied, will authorize her to make contracts binding on him.

It is a well known maxim of the common law, that husband and wife, being but one person in the eye of the law, can not contract with each other during coverture. Yet contracts are sometimes made between them for a separate maintenance of the wife, by the intervention of trustees, which are recognized both in law and equity.

In this state, a married woman is enabled by statute to convey her lands by deeds duly executed by her and her husband jointly; but a deed of the wife's land by the husband alone, is void, as far as it respects the interest of the wife.

Whether a married woman can devise her lands, was a question which has been much agitated in this state; but the legislature have put it at rest, by a statute giving her that power.

Although the husband does, as above stated, acquire a property in all the personal substance of the wife; yet, in one particular instance the wife may acquire a property in some of her husband's goods, which shall remain to her after his death, and shall not go to his executors. These are, her necessary apparel, which she shall retain in preference to the claims even of creditors; and other paraphernalia, such as jewels, and ornaments of dress, suitable to her rank, in her possession at his death, in preference of every claim but that of creditors. The husband may, indeed, (if so unkindly inclined,) dispose of such ornaments in his life time-but not by will.

Although the husband, by law, has power and dominion over his wife, as he is responsible for her actions, yet he is bound to exercise it with sound discretion; and if he wantonly abuses her, or threatens to treat her with violence or cruelty, she may swear the peace against him, and cause him to find sureties for his good behavior.

The contract of marriage can be dissolved only by death, or by divorce.

Divorces are of two kinds : 1st, a vinculo matrimonii, from the bonds of matrimony; 2d, a mensa et toro, or from cohabitation. In England, the first is effected by some canonical cause of impediment, and is rarely granted; the second arises from some supervening cause, which affecting only the harmony of the marriage state, causes but a partial separation, and not a total dissolution of the bond. Such divorces are there more common.

In Connecticut, the law is reversed, and by statute, divorces from the bonds of matrimony are granted by the superior court, for four causes, viz: for adultery, for three year's willful absence, for seven year's absence of one party, not heard from, and for fraudulent contract. A divorce a mensa et toro, is rare, and never granted except by the legislature.

On the divorce from the bonds of matrimony, the rights of the wife to her estate revive in the same manner as if the husband had died. In the case of such divorce for the default of the husband, the court can assign to the wife a reasonable part of his estate, not exceeding a third, whether it is real or personal, to be hers absolutely.

On the dissolution of the marriage by the death of the husband, or by divorce, when she is the innocent party, and no part of the estate of her husband was assigned to her, for her support, the wife shall have dower in one third part of the real estate of which the husband died possessed; to be to her during her life, unless a suitable provision was made for her support before marriage, by jointure, or by the last will of the husband, in lieu of dower and to her acceptance. Dower is thus regulated by statute in Connecticut. In England, and in most of the United States, the wife is entitled to dower, by the common law, in all lands the husband was ever seized of during coverture, though he had transferred them, unless she was a party to the deed of conveyance. This is not law in Connecticut.

By statute, in Connecticut, it is made the duty of the heirs of an estate, within sixty days after the death of the husband, to apply to the court of probate, to have dower assigned to the widow, and the duty of the court to appoint three freeholders to set out the same; and if the heirs neglect, on her complaint, the court will cause it to be done. It is, also, made the duty of the widow to maintain and keep in repair the houses, buildings, fences and lands assigned and set out to

her, for her dower, and to leave the same in good and sufficient repair.

The husband can not by his last will deprive his wife of her dower. If by will he gives property to his wife, expressed to be in lieu of dower, she is at liberty to take or refuse it. If she takes it, she is barred of her dower. If she does not take it, she may resort to her dower, but can not take both.

In addition to dower, thus secured to the wife, she is entitled by the statute of distribution, both in England and generally in the United States, if her husband dies intestate, to one third of his personal estate, which remains after payment of debts, if he left any issue: but if he left no issue, she is entitled to one half of the residuum of the personal estate, after the debts are paid, to be hers forever.

But although the husband could not by will, deprive his wife of her right of dower without her consent; yet by will, he might have increased or lessened her share of his personal estate; and if so disposed, he might even cut her off from the whole, except her paraphernalia.

MINORS, PARENTS, AND GUARDIANS.

All persons, male or female, under the age of twenty-one years, are minors, (in law language styled infants.) Such persons are in a situation very different from adults, both as it respects their contracts, and their liability to be punished for crimes.

The ages of males and females, are different, for different purposes. By the common law, a male at twelve years old may take the oath of allegiance; at fourteen is at years of discretion, and may therefore consent or disagree to marriage, and may choose his guardian; at seventeen may make his testament of his personal estate, and may be an executor; and at twenty-one is at his own disposal, and may aliene his lands, goods, and chattels,

A female, also, at seven may be betrothed or given in marriage; at nine is entitled to dower; at twelve is at years of ma turity, and may consent or disagree to marriage, and if proved of sufficient discretion, may bequeath her personal estate; at fourteen is at years of legal discretion, and may choose a guardian; at seventeen may be executrix; and at twenty-one