SEPARATE PROPERTY. By the common law- of England the husband acquired by the marriage a freehold interest in, and a right to dispose of, the rents and profits, during the joint lives of himself and his wife, of all the estates of inheritance of which she was at that time seised, or might become seised during the coverture, as well ma right to an estate for his own life as tenant by the cnrtesy in the event of his surviving his wife and there having been issue of the marriage. By the common law, also, marriage was an absolute gift to the husband of all the goods and personal chattels of which the wife was actually pos sessed at that time or might become possessed during the coverture, and it gave him a right to dispose of her chattels real and of such of her choses in action as he should have reduced into possession during the same period. There was no mode by which the wife could take or enjoy any estate or property absolutely independent of her husband.
In process of time, however, limitations of both real and personal property to the separate use of the wife were established in courts of equity, and the validity of them has been recognised even in courts of law. It was at first considered necessary that property which was to be enjoyed by a married woman for her separate use should be vested in trustees for her, but it has since been settled that where either real or personal property is given to the separate use of a married woman, without any appointment of trustees, the husband shall be considered a trustee for her. This principle applies d fortiori when the property is expressly given to the husband for the separate use of his wife. In the same manner the agreement in writing between the husband and wife before marriage, that his wife shall be entitled to any specific property for her separate use, converts him into a trustee for her as to that property ; and if the subject of agreement be real estate, and be such as to give the wife a power of disposition, the agreement will be binding on her heir, and make him a trustee for her appointee. Tho consideration of what is or is not a valid settlement of property by the husband to the separate use of his wife as against creditors and pur chasers, belongs to the general doctrine of marriage settlements.
[SETTLESIF.Str.] Many questions have arisen upon the construction of particular instruments as to what words are necessary to raise a trust for the separate use of the wife. The result of the cases upon this point may be stated to be, that when, from the nature of the transaction and the context of the instrument, the intention to limit the property to the wife for her separate use is clear, whatever may be the particular expressions need, that intention will he carried into effect ; but that the courts of equity will not interfere to deprive the husband of the interest which he would otherwise take in his wife's property upon doubtful inferences or ambiguous expressions. It has sometimes been doubted whether property could be limited in trust for a woman, whether married or sole at the time, so as to enure to her separate use in the event of a second or future marriage ; but the recent decisions upon this point, in accordance with the general practice of conveyancers, leave no room now to doubt their validity. The intention to extend the limitation to future covertures must, however, be clearly declared ; for if the apparent object be to protect the fund against the particular husband, a declaration that tho trust shall continue during the life of the woman will not extend it to a future marriage.
Separate estate may be acquired not only in lands and personalty, but in the profits of trade carried on by the wife on her separate account, in consequence either of express agreement between her and her husband before marriage, or his subsequent permission. Upon the general principles applicable to marriage settlements, the agreement in the former case will be good against creditors; in the latter against the husband only. In such cases the stock in trade and property required for carrying on the business are usually vested in trustees for the wife, who is considered at law as their agent, and should carry on all business transactions in their names. But if no trustees should have been appointed, the rule of equity before stated will apply, and the husband will be bound by his agreement, that all his wife's earnings in trade shall be her separate property and at her own disposal.