It is the duty of the husband to support and maintain the wife as long as she lives with him. And from this duty the husband is not relieved, though the wife have independent means quite adequate to her needs. The obligation of the husband is to provide "necessaries," and to ob tain these the wife may contract debts which the husband by law is bound to pay. For more than 200 years the principal laid down in the leading case of Manby v. Scott — namely, that a husband is not bound by his wife's contracts, unless she acts by his authority— has controlled the decisions of the courts. The wife in the case had lived apart 20 years and returned; the husband had refused to receive her and forbid den tradesmen to trust her. The long separa tion countervailed any presumption of an au thority conferred on the wife to contract even for necessaries. Such authority will be pre sumed to have been given only when the rela tions apparently are normal and the parties live together as husband and wife. But the fact of cohabitation as man and wife will not raise a presumption of the husband's assent to the pur chase by the wife of non-essentials. This is illustrated by the triumphs over the Philistines of the gentleman who figured as defendant in the actions of Montagu v. Benedict, and Seaton v. Benedict, reported with much humor in Shirley's 'Leading Cases in Comincin Law.> Mrs. Benedict, who appears to have been a woman of extravagant tastes, contracted a sub stantial debt with the plaintiff, Montagu, for jewelry. In due course the jeweler presented a substantial bill, which Mr. Benedict declined to pay; and the court held that, "tradesmen, who are about to trust a married woman for what are not necessaries, ought in common prudence to inquire if she has her husband's consent for the order.° Mrs. Benedict con tinued to "walk on primrose path° and by the way dropped in at Seaton's millinery establish ment, whence she took, with the gladly-given consent of the proprietress, large quantities of fine laces, scarves, gloves, etc., on the credit of her husband. The latter had always liberally furnished his wife with apparel or, what amounts to the same thing, with money to buy what she required, and he knew nothing of her clandestine dealings with Seaton. This person, confident in the correctness of her assumption that *a lady's needs)" and were terms of identical meaning, brought suit when Benedict refused to pay the bill; but she met with a judicial rebuff, which gained nothing in sweetness from this judicial gloss to the deci sion: °It may be hard on a fashionable milliner, that she is precluded from supplying a lady without previous inquiry into her authority; the court, however, cannot inquire into these little delicacies, but must lay down a law that shall protect the husband from the extrava gances of his wife.* The rule deducible from these and many other cases is: When husband and wife are living together there is a pre sumption that the wife has the husband's au thority to enter into contracts, binding ott the latter, in relation to all domestic matters or dinarily entrusted to the woman of the house, and to obtain on the husband's credit the things necessary to the conduct of the household. The term °necessaries') means a reasonable supply of such goods and services as are suitable in kind, sufficient in quantity and required in fact, for the use of the husband, the wife, the chil dren and other members of the household, ac cording to the conditions in which they live. When the wife is living apart from the hus band without his consent the presumption is the other way about — namely, that she has no au thority to pledge his credit; and, when the separation is due to the woman's fault, the presumption of °no authority") is conclusive. When the separation is by mutual consent the wife goes forth with implied authority to con tract for necessaries in the name of the hus band. But this implication is not absolute and may be repelled by a variety of circumstances. For instance, if the husband make her an al lowance which is sufficient, or accepted by her as sufficient; probably, also, if she have money of her own to live on, or if she be capable of earning it. For the wife's authority to bind the husband for necessaries is a mere question of agency, and an agency can hardly be assumed when the wife is living alone on her own in come, or supported by her own earnings. The husband's liability to pay for necessaries cannot be evaded by a public, or even by personal notice not to extend credit, unless it can be shown also that the wife was adequately pro vided for by the husband. The latter must supply the wife's needs or pay. A married woman wilt not be permitted to suffer depriva tion if there be a husband living capable of sup plying her wants; and third parties may sell necessaries to her on credit — or lend her money to buy the same— and hold the husband responsible, though the latter have forbidden the wife to contract and the creditor have notice of the inhibition. (As to the effect of a divorce or judicial separation, see Divoaca). A mar ried woman living with her husband cannot be sued for debts contracted for necessaries. She incurs no liablity even when the necessaries are contracted for after the death of the husband in foreign parts, the fact of his demise being un known.
In theory of the common law the personality of a woman, on her marriage, was merged in that of the husband. The twain had become one person with the husband as head. With respect to legal rights in property this merger was complete. The husband, on marriage, ac quired absolute title of the wife's personal property, not held in trust; it became his as as if he had bought it, and could never again become hers, unless he gave it to her by will. In the event of the husband dying,
without having made a will, the wife's per sonal property did not revert to her but went to his estate. Choses in action also passed to the husband, who alone could sue for a recovery. Unless the personal property of the wife was reduced to his possession during his lifetime, however, it remained her own, and would not pass to the husband's executors or administra tors, nor become chargeable with thepayment of his debts or legacies. On the death of the wife, however, the surviving husband was en titled to the administration of personal prop erty that had remained in her possession, and he was unaccountable therefor to her next of kin. A gift or sale ofpersonal property from the wife to the husband, or vice-versa, was a nullity, of course. The wife, in such case, would merely have transferred to the husband that which was already his; while he would im mediately and again become the legal owner of the thing that had just been transferred to the wife. The wife, during coverture, gained noth ing from her marriage so far as the personal property of the husband was concerned. In case of his death intestate, the wife surviving, she was entitled to one-third of his personal estate if there were children, or to one-half if there were none; but this right could be de feated by the testamentary disposition of the husband. Besides an absolute right to the per sonal property of the wife the husband, on mar riage, obtained an usufructuary interest in all of the wife's real estate during the period of their joint lives; he was entitled to collect and use the rents and profits thereof. On the death of the wife, and if there had been any living children born of her husband, the latter became entitled to the possession, and the enjoyment of the income, for life of all his wife's real prop erty (estate by curtesy) even though no child of the marriage survived. By no act of the wife could the husband's estate by curtesy be diminished or destroyed. A wife by her mar riage acquired a right of dower. This was a life interest, to the extent of one-third of its value, in all real estate owned by the husband at the time of the marriage or acquired by him subsequently, whether by purchase, gift, inherit ance or process of law. The right of dower could not be defeated by a conveyance of the property by the husband during the period of coverture nor by his will; and it attached to all real property owned by the husband at any time during his married life. The right of dower could be terminated only by a release from the wife; or the acceptance by her, in lieu of dower, of a provision made for her during his life, or by his will, out of the husband's individual estate. Dower could be admeasured, on the basis of its cash value as an annuity, and the owner of the right could thus be satisfied by a payment in gross. Conveyances of real estate from husband to wife and vice-versa, if direct and without intervention of a trustee, are void in law; though it has been held also that the effect of such a conveyance would be to create a joint estate for life, the surviving party taking the whole property on the death of the other.
While the common law rigorously adhered to the theory of the unipersonality of husband and wife, in equity the separate existence of the wife was abundantly acknowledged. She might own separate property, real as well as personal, free of any control on the part of her husband. Her right to the sole use and pos session during coverture of property owned by her while single was usually effectuated by an ante-nuptual settlement; but property could also pass to her after marriage, for her sole and separate use, from any person and in any man ner, by will, deed or gift — and it would be more absolutely her property thin her hus band's property was his. Sometimes the legal title to a married woman's separate estate was held by trustees, but the beneficiary of the (use° could dispense with her trustees' advice, manage the property as she pleased or convey or otherwise dispose of it without their knowl edge or consent. Often were created without the formality of vesting the legal title in a trustee; and a single woman contemplating matrimony might convert her legal estate into a (use,° and have the sole and separate manage ment of the same after marriage. And this might be done on the very eve of the wedding, the only condition being that it was done with the knowledge and consent of the prospective husband. If done clandestinely it would be in fraud of his expectations, and the arrangement would be annulled by a court of equity. The rule of law that conveyances between husband and wife were nullities was disregarded in equity, and a husband's grants and gifts of either personal or real property to his wife for her separate use were validated. The legal dis abilities of a married woman were considered non-existent in equity with respect to her sepa rate estate. She was presumed to be clothed with all powers necessary to the management and protection of her property; she could sue and be sued without her husband joining or being joined in the action, and she could even enforce rights in opposition to him. In law a married woman could make no valid contract except for necessaries; in equity, and in respect to her separate property, a married woman's right of contract was not limited by any legal disability flowing from coverture.