Note 124 — Chapter XIV · (continued 4)

Mr. Hopkins further stated that, tenancy by the courtesy operates in favor of the husband, not of the wife. It is the husband's right during his life to the use of the wife's real estate from her death, in case of a child or children born of the marriage. It is defeasible now by the wife's will.—Cow. Rep. 74, 2 K. S., 4th Ed. 331. Tenancy by right of dower is the wife's right during her life to the use of one-third of the husband's real estate from his death. It operates in favor of the wife and not in favor of the husband, and is indefeasible by the husband's will or the husband's acts while living, and does not depend upon the birth of a child by the marriage.

The order of distribution of the husband's personal property on his death is as follows, viz.: 1st, the widow of a family takes articles exempt from execution as hers, also $150 worth of property besides. 2d, she has one-third of the personal property, absolutely—if there be no children, one-half, and if there be no parent or descendant, she is entitled, of the residue, to $2,000, and if also no brother, sister, nephew, or niece, all the residue. This order may be varied or defeated by his will.

The order of distribution of the wife's personal property on her death without will is as follows: It goes, after paying her debts, to her husband, if living; if not, then 1st, to her children, 2d to her father, 3d to her mother, 4th to her collateral relatives. This order may be varied or defeated by her will. She may devise it as she may please.

His property before marriage continues his after marriage, subject to her inchoate rights of dower.

Her property before marriage continues hers absolutely.

Upon marriage he is liable to support her, and may be compelled to do it if he prove refractory.

She is not liable to support him, however wealthy she may be, or poor he may be.

He is liable to support the children. She is not so liable, though possessed of millions.

The husband is the guardian of the wife, as against third persons. (Page 488). But he has no power to preserve, retain, or regain the custody of her against her will. (Page 47).

He may maintain his action against third persons for enticing her away or harboring her. But this harboring, to be actionable, must be more than a mere permission to her to stay with such third person. (4 Barb. 225).

If the husband seek to take away his wife by force, it is an assault and battery upon her. If a third person, resists such force at her request he is not liable to any action. (Barb. 156).

The wife is not the husband's guardian, but if he will desert her he may be put under bonds for her support and the support of her children by him. (2 Rev. Stat., 4th Ed., pp. 53, 54).

The husband is liable for the debts of the wife contracted before marriage, but only now to the extent of her property received by him. (7 W. R. 237, 1st Chitty Pl., 66 to 68, laws of 1853). And he is liable for her debts contracted during marriage, if permitted by him, or if for necessaries which he neglected to provide.

The wife is not liable for her husband's debts contracted at any time.

The law casts the custody of the minor children upon the father and not upon the mother. But if this custody is abused, it is by the Court to the mother.

The father may appoint a guardian for his infant children. (2 Rev. Stat. 33.) But the Court will not allow such guardian to take the children out of the State against the mother's will, much less to separate them unjustly from the mother even though the father's will command it. (5, page 596).

During the separation of husband and wife, it is for the court now to decide, under the circumstances of each case, whether father or mother has such custody. (2 R. S. 330, 332).

When both seek such custody, and both are equally qualified for it, that of daughters and young children is usually given to the mother, and that of the sons to the father, but this is in the discretion of the Court.

The earnings of the husband are his. The earnings of the wife are his, if she live with him and he support her.

But he can not compel her to work for him. And if she separate from him for cause, he may be restrained for intermeddling with her earnings.

The husband's abandonment and his refusal or neglect to provide for her, are good causes of separation. (2 R. S. 329, sec. 53, sub. 3).

For the husband's torts the wife is not liable. For the wife's torts, committed by her before marriage or during marriage the husband is liable jointly with the wife. If committed by the wife and husband, or committed by the wife in his presence and without objecting, the husband is liable alone. (1 Chitty Pl., 105, 7th American edition). Nay, even felonies (excepting murder, manslaughter, treason, and robbery), are excusable in the wife if committed in the husband's presence and by his coercion—and such coercion is presumed from his presence. For this he must suffer and she must be spared. (Barb. Crim. Law, 247 and 348, and cases there cited).

In actions or lawsuits between men and women, the law in theory claims to be impartial, but in practice it has not been impartial. Before a Court of male judges or a jury of men the bias is in favor of the woman; and if she is pleasing, in person and manners, such bias is sometimes pretty strong.

If the man and woman between whom litigation arises are husband and wife, the Court may accord an allowance to be advanced by her husband, to enable her to defray the expenses of the litigation.