The husband may mortgage his wife's real property during their joint lives and during his life in addition, if he survives her, and become tenant by the courtesy ; if the wife joins in that mortgage, and recog nises it after her husband's death, she will be bound by it; but she may, if she thinks fit, repudiate it. Before fines were abolished, her levying a fine rendered a mortgage a good security against her and her heirs ; and since the act abolishing that form of assurance, a deed acknowledged by her as the act prescribes effects the same object. [Fesz or Le:Ins.) A mortgage (made by a wife of her estate for the sole benefit of her husband, and not to discharge a debt of her own, gives her a right at equity to compensation out of his assets.
Such are the principal rights which a husband acquires in his wife's property, and the limitations of those rights. On the other hand, the common law gives to her if she survives him an estate for life in a third part of all such estates of inheritance as he was solely seised of during the marriage, and as any children of the marriage might pos sibly have inherited. [DowEn.] That right of dower may be forfeited in various ways, and it may be defeated by a provision for her, made before marriage, in the shape of jointure. fJovrrunE.1 Since the stat. 3 & 4 Wm. IV. c. 105, in marriages subsequent to 1st January, 1334, dower does not attach unless the husband died possessed ; and it does accrue on estates disposed of by the husband during his life or by will, while it may be defeated by a declaration of the husband by deed or will, that his estates are not to be subject to dower.
The Statute of Distributions (22 & 23 Car. II. c. 10) gives to the widow of an intestate husband (if her claim has not been barred by settlement.) one-third of his personal property where there is issue of the marriage living, and one-half where there is none. Marriage revokes powers of attorney previously granted by the wife, and dis ables her from granting them ; but it does not disable her from accepting such a power, or from acting on one granted to her before coverture. She may too be attorney for her husband. She cannot bequeath her personal estate by will unless under a power, or with the consent of her husband.
The separate property of the wife has been already treated under that head. (SEPARATE PROPERTY; PIN-MONEY.] There remains only the separation of husband and wife ; which may be by deed or by decree of the Court for Divorce and Matrimonial Causes. The ecclesiastical courts considered all deeds of separation and all covenants in the nature of such deeds to be void. The courts of law, however, not only have supported such deeds against the husband, but have enforced a covenant made by him with his wife's trustees to pay her an annuity as a separate maintenance in the event of their future separation, with the approbation of the trustees. But courts of equity will not interfere to enforce such deeds, though by a strange inconsistency they will enforce the husband's covenant for a separate maintenance if made through the intervention of trustees, and indeed in certain rare cases if made between the husband and wife alone. Nor is the adultery of the wife a sufficient answer to her claim
to the separate maintenance. The separation by decree is either a judicial separation or a divorce. A wife when deserted by her husband may obtain an order to protect her earnings from him or his creditors, and she will then be able to contract as if she were a ferns sole. But when the desertion of the husband extends over a period of two years, or when he treats her with cruelty, or commits adultery, the wife may obtain a judicial separation. [SEPARATION.] When, again, the hus band commits incestuous adultery, or to adultery adds the crimes of bigamy or rape. cruelty or desertion for two years, or is guilty besides the adultery of an unnatural offence, the wife may obtain a dissolution of the marriage. [DIVORCE.] WIFE. (Scotland.) The moveable or personal estate of a husband and wife is under the administration of the husband; according to the phraseology of the law it is called "the goods in communion," because on the dissolution of the marriage by the death of either party it falls Ito be so divided that if• there be issue of the marriage a third, and if there be no issue a half, goes to the nearest of kin or to the legatees of the deceased, whether husband or wife, the remainder being the pro perty of the survivor. During the continuance of the marriage the husband's right as administrator is in all respects equivalent to the right of a proprietor, and whether the common property has been acquired by himself or by the wife, it is entirely at his disposal, in so far as that disposal is intended to have effect during his lifetime. His right of bequeathing it is limited by the Scottish law of succession. [WILL.] As the husband has the administration of the wife's property, he is responsible not only to the extent of the goods in communion, but personally, for the wife's obligations, whether contracted before or after marriage. No suit can be brought against a married woman unless the husband be made a party. The wife cannot of herself enter into a contract exigible by execution against the goods in communion and the person of her husband, unless in certain cases in (which by general law or by practice she holds an agency. To this effect she is praposita negotiis domestids, and whatever debts she incurs for house hold purposes are debts against• the husband ; but the husband may discharge himself from responsibility for debts so incurred by obtaining an " inhibition" against her. A wife's agency may be extended like that of any other agent ; but it does not extend, without special autho rity, to the borrowing of money.