It has been remarked that "the main idea which governs the law of husband and wife is not that of a 'unity of person,' but that of the guardianship, the round,' the profitable guardianship, which the husband has over the wife and over her property ;" 1 Poll. & Maitl. 468. The difficulties arising from the common-law doctrine of a married woman's incapacity, and her practical non-existence as a legal person, resulted in a qualified' recognition by courts of equity of the individ uality and existence of a. married woman as such. This, however, was only granted in cases where she had what was termed a separate estate. This gave rise to two great doctrines of the law, the separate use and restraint on anticipation.
In Equity. The latter was an invention of the court of equity and an exception to the general law of inalienability of property. It was justified as the most satisfactory method of giving property to a married woman so that it should not be practically given to her husband, to prevent which the "con dition was allowed to be imposed restrain ing her from anticipating her income and thus fettering the free alienation of her property ;" Jessel, M. R., in 11 Ch. D. 644. By the Conveyancing Act, 1881, the court was authorized, where It appeared to be for the benefit of a married woman, by judg ment or with her consent, to bind her interest in any property, notwithstand ing that she was restrained from anticipa tion ; 44 & 45 Vict. c. 41, §§ 39, 40. This was held to be not "a general power of re moving the restraint upon anticipation, but only a power to make binding a particular disposition of property by a married woman if it be for her benefit;" 52 L. J. Ch. 928. See as to this doctrine, Brett, L. Cas. Mod. Eq. 104. The separate use was also origin ally a creation of the court of chancery, but in recent years it has been adopted in statutes with the effect of abolishing the common-law marital rights of the husband, to the same extent that they were avoided by a trust, in equity, to her sole and separate use.
The separate property of a feme covert as to which equity considers her as a feme sole, is that property alone which is settled to her sole and separate use by some will, writing, or deed of settlement with a power expressly or impliedly given her of manag ing it without the concurrence of her hus band; Hebron v. Colchester, 5 Day (Conn.) 174. This estate may be created by any form of settlement, written or oral (as to per sonalty), by deed or will, to her directly or in trust for her ; or, it may be by antenuptial agreement (q. v.). It may be settled by the
husband; Williams v. Williams, 68 Ala. 405 ; herself; L. R. 16 Eq. 29; or a stranger ; Charles v. Coker, 2 S. C. 122, 129, 133. The one essential ingredient required for its crea tion is a sufficient indication of an intention to bar or exclude the marital rights; Vail v. Vail, 49 Conn. 52 ; Buck v. 1Vroten, 24 Gratt. (Va.) 250; of the husband contem plated by the settlement; 1 Beay. 1, Na Particular form of words is required, but any which sufficiently indicate this intention will be sufficient. For a great variety of phrases which have been judicially passed upon as sufficient or insufficient, see Stew. H. & W. § 200. Where a wife purchases land in her own name and with her own money it will be presumed to be her separate property ; Webster v. Thorndyke, 11 Wash. 390, 39 Pac. 677.
To an ordinary equitable estate of a mar ried woman the marital rights of the hus band atiach; Banks v. Green, 35 Ark. 84, 88 ; but the effort to mitigate the severity of the common-law doctrine gave rise to the equi table creations of the wife's equity (q. v.) and the equitable separate estate; 1 Bro. C. C. 16; White v. Gouldin's Ex'rs, 27 Gratt. (Va.) 491, 507; 1 L. Cas. Eq. 481; 2 Perry, Trusts, § 625.
The Wife's Equity. What 'is termed wife's equity is her right, whenever the hus band cannot obtain possession of her estate without the aid of a court of equity, to have settled upon her and her children out of it a suitable provision, for herself and her chil dren ; Shelf. Marr. & D. 605.
In consideration of the obligation assumed by the contract of marriage, the husband acquires an interest in the property of his wife which is enforceable at common law by an action, and therefore he may alien the property to which he is so entitled, jure mariti, or in case of bankruptcy or insolven cy it would vest in his assignee, and the wife and children be left destitute, whatever her fortune might be. It was to remedy this evil that the courts of equity devised a method of making provision for the wife, known as the wife's equity. The principle upon which courts of equity act is, that he who seeks the aid of equity must do equity; and that will be withheld until an adequate settlement has been made; 1. P. Wms. 459.