2. As to the property of the married persons. As regards the husband, he still remains sole owner of his property, real and personal. and can do what he likes with it; and he may, as already stated, by k ill devise and bequeath it all to strangers, regardless of the wife. He can also sue and be sued as before, irrespective of his wife. But as regards the wife, the case is different. Owing to her incapacity to contract or even to hold personal property independently of her husband, she can neither sue nor be sued except where she has separate property settled upon her, as afterwards explained. If she had personal property before marriage, the whole, in marriages before 1870, was the sole and absolute property of the husband immediately after the marriage, if there is no marriage settlement. All debts which were due to her before marriage also become after marriage debts due to him, provided he chooses to reduce them into possession, and sue for them. As a general rule, therefore, the wife could not, unless married after 1870, earn and enjoy her earnings separately; but this, as well as legacies coming to her, are now, by the act 33 and 34 Vict. c. 93, made the rule hi all eases, and he is not liable for the wife's debts contracted before marriage, but a settlement may still vary the rule. As regards persons married before 1870, the old rule remains, that she could not sue in her otyLuTight. Hence, in" caSes-where ltdebtwaS'Ilueto'het before matTiage, or the money claimed had been earned by her during marriage, both she and her husband may sue for it, or he alone must sue,for it, according to circumstances. In like manner, when the wife was in debt before her marriage, the husband, who in effect married her debts also, must be sued jointly with her; and so, if she committed some wrong, as a slander or assault, the husband must be sued jointly with her; but where she merely ordered goods which were supplied to the husband, he alone is-liable, and he alone can be sued. When the wife was once sued along with the husband, both of them could be imprisoned; but the wife was immediately discharged, as a matter of course, on application to a judge, provided she had no separate property of her own out of which the debt was payable. The old rule as to the wife's personal property becoming the husband's absolutely after marriage, suffered qualification when such property consisted not of money or chattels, but of what are called chattels real, such as leases and mort gages. In such a case, they become so far the property of the husband, that he can sell them during his life, but he cannot bequeath them by will; and on his death they remain hers, while on her death they become his. Again, where the wife's personal estate before marriage consisted of mere rights of action or debts due to her, they were so far his that he could at any time sue for them, and so reduce them into possession, and make them his own absolutely, but could not bequeath them by will: and if he did not sue for them in his lifetime, they survived to the wife after his death. As regards the wife's real estate—i.e., her lands and houses held in freehold—the husband doesnot acquire these absolutely by the marriage, but he thereby becomes entitled to a life-estate in them. He cannot sell the property, though he may sell his own life-estate in it. On the other hand, though the real estate still' continues to belong to the wife, she cannot sell it, like an ordinary owner, unless she separately acknowledges the deed of sale, which is done by her going before a commissioner or a judge, who examines her in pri vate, and explains the nature of the deed, and sees that she understands its purport, and that she acts freely, without the coercion of the husband.
On the death of one of the married parties, the property is disposed of as follows: if the husband dies, his will may, as already stated, dispose of his whole property to strangers, irrespective of the wife, and she may be left entirely destitute in consequence. But there are some things his will cannot take away from her, as, for example, her leases, separate property, etc., and her real estate. To these may be added her para
phernalia, which consists of her personal apparel and jewels; but even these will be taken by her husband's creditors, if there is a deficiency of assets. If the husband die without a will, the law is more liberal to the widow: she is entitled to one-third of the husband's personal estate absolutely, and not merely to a life-interest; she is also entitled to dower out of her husband's real estate, i.e., to a life-interest of one-third of the whole real estate which belonged to him. This right of dower, however, can in general be defeated by the husband's will. When the wife dies before the husband, he becomes entitled to nearly all her personal estate, of whatever description, 'even though she left children of the marriage; and it must be recollected that she can in general make no will which has any effect, if the husband chooses to repudiate it. As regards the wife's real estate, if a child has been born, who might by possibility have inherited her real estate, then the husband has, by the courtesy of England, an estate for life in the whole of such real estate; but if no child has ever been born, the real estate goes to the wife's heir-at-law, or if none, to the crown.
The common law of England has been often considered, especially of late years, as unjust towards women, hi subjecting them too much to the caprice of their husbands. There are, however, several ways of avoiding this, but they are only available, as will at once be seen, to the rich. The most effectual way of preventing the husband having powers so absolute as the law gives him, is by executing a marriage settlement before marriage. By means of a settlement, not only all the property which the wife has before marriage, but also all which she expects to have during marriage, may be settled upon her to her separate use, and put entirely out of the power of thehusband. This is done by the agency of trustees, who hold and manage her property as their own. keeping the husband atarms' length, and yet she has almost the same power of acting independently as if she were not married: she can draw her rents, keep her bank-account, enter into contracts, and bond her separate property, and also execute her will, as if she were a man. Sometimes the husband and wife both settle their property by the same settle ment; or if the wife has no property, the husband may settle his upon her in the same way. She is in that case generally allowed a certain sum per annum as pin-money, to spend upon her personal adornment; and by means of her trustees, she can sue her hus band for this sum, if not punctually paid. Sometimes, by the marriage Settlement, if the husband had no money, the wife's money is settled partly upon hint, so that he has a certain allowance per annum; but in the event of his becoming insolvent or bankrupt, the money is not to go to his creditors, but to remain for the wife's use. In short, there is practically no limit to the variety of mutual arrangements, by means of a mar riage settlement, for providing against the possible hardships of the common law. It is on the same principle that, in some cases, the court of chancery has interfered to pre vent the husband so absolute an interest in the wife's property as the common law gives him. But a great step towards emancipating married women's property from their husband's in 1879 by the act 33 and 84 Viet. c. 93, winch, as already stated, made the wife's earnings and legacies her separate property, and enabled her to make deposits in savings banks, and in the funds, and to insure her own br her husband's life for her own exclusive benefit, and so that she can sue in her own name for her separate property. This act has some defects which the legislature must sooner or later remedy and extend, for the better protection of women, and unremitting efforts have been used for this purpose.