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of the confidence reposed, or the relation of the parties between whom it has subsisted. I take the principle to be one of universal application, and the cases in which the jurisdiction has been exercised - those of trustees and cestui que trust, guardian and ward, attorney and client, surgeon and patient to be merely instances of the application of the principle." "It is said that he intended to be liberal," "but intention imports knowledge, and liberality imports the absence of influence; and I see no evidence in this case either of knowledge or of the absence of influence; and where a gift is set up between parties standing in a confidential relation, the onus of establishing it by proof rests upon the party who has received the gift."

In Pratt v. Barker, 1 Sim. 1, a case of physician and patient, the evidence showed knowledge and absence of influence, and the transaction was sustained.

In Popham v. Brooke, 5 Russ. 8, a patient, suffering from apoplexy and a diseased organization of the brain, and capable of talking only in monosyllables, and that with difficulty, executed to the surgeon of the ship on which he had been voyaging, and who had attended him, an instrument, giving him an annuity of £100 for his life, in consideration that he would live with him and attend him professionally. The Master of the Rolls remarked: "If it were admitted that Colonel Popham was of capacity to understand, and did perfectly understand, the nature and effect of these instruments, they could not be maintained by the defendant. On the 8th of July, the defendant was informed by Dr. Nevinson that Colonel Popham could not recover, nor survive long; and either on that or on the preceding day, the defendant stated to Mrs. Popham his own opinion that Col. Popham could not survive more than a month or six weeks. When, therefore, these instruments were executed on the 12th of July, the defendant well knew that he was in fact giving little or no consideration for so large a gratuity; whereas Col. Popham must have executed them in the hope of a prolonged life. Under such circumstances it would have been the bounden duty of the defendant to have declined a compensation of that character, even if Col. Popham had pressed it on him, and had been in truth capable of business."

In Ashwell v. Lomi, L. R., 2 P. & D. 477, it was held that although there is no rule of law which forbids a man to bequeath his property to his medical attendant, yet it is not a favorable circumstance for one in such a confidential position, with respect to a patient laboring under a severe disease, to take a large benefit under such patient's will, more particularly if it be executed in secresy, and the whole transaction assumes the character of a clandestine proceeding, and in such a case the onus will lie very heavily upon the party benefited to maintain the validity of the will.

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ing present, that he was to attend to the acceptor's teeth and supply him with artificial teeth, during life. The acceptor dying before the maturity, held, that the draft must be surrendered. The court said: "In a case of imputed fraud, the plaintiff is entitled to ask of the court, as a judge of fact, whether an inference of fraud of gross fraudarises from the case as Mr. Davis has himself stated it. And I think it quite impossible to ask any reasonable being to draw any different inference from such materials." Citing Dent v. Bennett.

Cadwallader v. West, 48 Mo. 483, was the case of a patient, aged, feeble, deaf, and of very weak mind, bestowing all his estate on his attending physician, who lived with him and had controlling influence over him, for an extremely trifling compensation. The transaction was set aside. The court said: "Owing to the relation which the parties sustained toward each other, the deed was presumptively the result of undue influence, and therefore prima facie void for that reason. It has been repeatedly declared by learned chancellors that the mere relation of patient and medical adviser was sufficient to avoid the contracts of the former made with the latter, during the continuance of such relation." Citing Dent v. Bennett. The court then go on to say that this presumption is not repelled by the evidence, the substance of which is given above.

In Crispell v. Dubois, 4 Barb. 393, a will had been drawn by the testatrix's physician and confidential adviser, devising him a considerable amount. The court said he "stood in relation of special confidence to the testatrix, both as her medical attendant and confidential adviser," and that the onus of proof was on him as propounder of the will.

Story says (1 Eq. Jur., § 314): "Similar considerations" (i. e., as to the presumption of unfairness and the burden of proof) "apply to the case of a medical adviser and his patient. For it would be a meager sort of justice to say that the sort of policy which has induced the court to interfere between client and attorney, should be restricted to such cases; since as much mischief might be produced, and as much fraud and dishonesty be practiced, if transactions were permitted to stand which arose between parties in equally confidential relations."

In Hare and Wallace's note to Huguenin v. Baseley, 2 White and Tudor's Lead. Cas. in Eq. 1230, it is said: "A physician is within the circle of confidential relations while attending on his patients, and until the influence arising from this source has ceased to operate."

This question arose in a case at nisi prius in England, in August, 1880, before Mr. Justice Stephen, in Mitchell v. Iomfray. This was an action, brought by the executors of the late Mrs. Geldard, to recover a sum of £800, alleged to have been advanced on loan by the old lady to Dr. Homfray, but which he claimed to have received as a gift. The judge, in summing up, said that if one person chose volunta

In Allen v. Davis, 4 DeG. & S. 133, an aged gen-rily to confer a benefit upon another, to give money tleman had accepted a draft for some £262 in favor of a dentist, the latter averring that it was in consideration of an oral agreement, no third person be

(or other things) without fraud, or any undue pressure or solicitation, or without intention to defraud creditors, and if he has a perfectly good title, the

property in the money (or goods) is as absolutely transferred as that in goods sold and delivered. Upon this principle a broad and important exception had been grafted by the Court of Chancery. There are certain relations of life in which one person obtains so much influence over another by reason of the relationship which exists between them that the former can hardly avoid being more or less under temptation. The relationship, for instance, between priest and penitent is of so delicate a nature, and so liable to abuse, that any advice given by priest to penitent is regarded with a jealous eye and guarded by strict rules. The same may be said of the relationship existing between client and legal adviser, and between a patient and the medical man who attends him. With regard to this latter relationship, which was the important one in the present case, his lordship said he should follow the line laid down by Lord Justice Turner in the case of Rhodes v. Bate, 35 L. J. Rep. Chanc. 267, and should tell the jury that the law was that if a gift be made by a patient to a medical man during the existence of the relationship, the gift would be set aside, unless at the time when the gift was made, the patient had competent and independent advice with regard to the giving of it.

Counsel for the appellee in the principal case cited Jackson v. Ashton, 11 Pet. 255. The court there said: "We now come to consider the fourth ground taken by the complainants; which is, that from the relation which existed between the defendant and Mrs. Goodwin, she could make no valid contract with him. He was her pastor and agent." "Some years before the mortgage deed was signed, Mrs. Goodwin did belong to the church under the charge of the defendant; but this relation had ceased long before the death of Goodwin; but if this relation existed in fact, it is not charged in the bill. Does the profession of a clergyman subject him to suspicions which do not attach to other men? Is he presumed to be dishonest? It will indeed exhibit a most singular spectacle, if this court should by its decision fix this stain upon the character of a class of men who are generally respected for the purity of their lives, and their active agency in the cause of virtue. They are influential, it is true, but their influence depends upon the faithfulness and zeal with which their sacred duties are performed. Acquainted as we are with the imperfections of our nature, we cannot expect to find any class of men exempt from human infirmities. But why should the ministers of the gospel, who as a class are more exemplary in their lives than any other, be unable to make a contract with those who know them best and love them most? Their influence, by precept and example, does more to reform the actions of men, and restrain their vicious inclinations, than all the institutions of society. And yet we are called upon to denounce this whole class, and hold them incapable of making a contract with those who are under their pastoral charge, and who, like Mrs. Goodwin, are distinguished for their piety." These remarks, it will be seen, are obiter, and the case was of contract, and not of gift.

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The case of Greenleaf's Estate, 12 Harris, 232, cited by counsel, and the only authority relied on by the court, has no application. The court simply said: "We cannot agree with the learned judge of the Common Pleas, that the gift (for such undoubtedly it was) to Mr. Sudards is prohibited by law, as against public policy. We know of no rule of law or morals which will prevent clergymen from receiving gifts, large or small, even from their parishioners, which it seems was not the case with Mrs. Greenfield, as she did not belong to the immediate church or congregation of Mr. Sudards. In this country the danger is that clergymen will receive too little rather than too much."

In Norton v. Relly, 2 Eden, 286, a grant of an annuity, obtained by a dissenting minister having a spiritual ascendancy over a woman under a state of religious delusion, was set aside on principles of public policy. The report does not show what the evidence was.

Lord Chancellor Henley delivered a

very severe and at the same time amusing opinion, in which he makes very different presumptions as to the clergy from those in Jackson v. Ashton.

We are quite inclined to believe, from the foregoing array, that in the case of any artifical confidential relation, like that of physician and patient, the donee must satisfy the court, on a bill brought to set aside the gift, that the donor had competent and | independent advice in conferring the benefit, that he fully understood the nature of the transaction, and that no undue influence was practiced; and that this rule is independent of age, sex, mental infirmity, and other incapacity.

As to the application of the doctrine of constructive fraud as between a minor and a person in loco parentis, see Berkmeyer v. Kellerman, 32 Ohio St. 239; S. C., 30 Am. Rep. 577; husband and wife, Boyd v. De La Montagnie, 73 N. Y. 498; S. C., 29 Am. Rep. 197; Darlington's Appeal, 86 Penn. St. 512; S. C., 27 Am. Rep. 726; parent and child, Jacox v. Jacox, 40 Mich. 473; S. C., 29 Am. Rep. 547; affianced parties, Pierce v. Pierce, 71 N. Y. 154; S. C., 27 Am. Rep. 22, and note, 26; Gilmore v. Gilmore, 7 Or. 374; guardian and ward, Ferguson v. Lowery, 54 Ala. 510; S. C., 25 Am. Rep. 718, and note, 728; grandfather and grandson, Cowee v. Cornell, 75 N. Y. 91; S. C., 31 Am. Rep. 428; attorney and client, Dickinson v. Bradford, 59 Ala. 581; S. C., 31 Am. Rep. 23.

THE

THE EFFECTS OF MARRIAGE.

BY ISAAC VAN WINKLE.

II.

French law does not interfere in matrimonial arrangements respecting property, except when there are no special agreements which the parties may make as they think proper, and not contrary to good morals. They cannot by any agreement change the legal order of succession. They may declare in a general manner that they intend to be married under the régime de la communauté (possession in common, or under the dotal system-le régime dotal). In such cases the respective rights of husband and wife and their heirs are governed by rules under the title of Community of

Goods and Dotal System. In default of special stipulations which derogate from the system of community, or which modify it, the rules hereafter laid down form the common law of France.

All marriage settlements must be drawn up before marriage by a notary and cannot be altered after marriage.

The communauté, either legal or conventional, begins from the day of the registration of marriage, and cannot be stipulated to commence at any other time. Possession in common comprises all the personal property which the husband and wife possessed at the time of marriage and all that accrues to them during marriage, by succession or gift; unless the donor has expressed the contrary.

2. All the fruits, rents and interest of whatever kind, due or received during the marriage, and all that arises from property which belonged to the husband and wife at the time of the marriage, or which have accrued to them since from whatever source.

3. All the real property acquired during marriage. Real property (immeubles) is considered as having been acquired in common, if it is not proved that one of the consorts was the owner or in legal possession of it before marriage, or that it has accrued to him or her by heirship or gift. The liabilities of the communauté consist of: All personal debts due by the consorts on the day when the marriage was solemnized or the successions which fall to them during its continuance, saving compensation for liabilities relative to the real property that belongs separately to one or other of the consorts. 2. Debts, whether of principal sums, arrears or interest, contracted by the husband during the community, or by the wife with the consent of her husband, saving compensation in cases when it is due. 3. Arrears and interest only of such rents and debts as are personal to either of the consorts. 4. Repairs chargeable to the usufructuary of immovables that do not fall in common. 5. The maintenance of the consorts, education and maintenance of their children, and all other charges incidental to marriage. A husband solely administers the property of the community, and may sell, alienate or mortgage it without the concurrence of his wife. He cannot bequeath more than his share of the community. Penalties incurred by the husband for misdemeanors may be recovered out of the property of the community, compensation being made to the wife; those incurred by the wife can only be recovered out of the non-propriété (property of which the usufruct belongs to another) or her real property so long as the community lasts. The criminal condemnation of one of the consorts affects only the delinquent's share in the community, and his or her private property. Deeds executed by the wife without the consent of the husband, and even when she is judicially authorized, do not affect the property of the community unless she contracts as a public trustee and for the purpose of her business.

A husband has the management of all the property of his wife, and may sue solely in all actions that relate to her. He cannot alienate her real property without her consent, and in default of due care he is responsible for deterioration of the property of his wife. The community is dissolved: by death; by judicial sepa ration; by separation of property. All voluntary separation of property after marriage is void. A judgment declaring the separation of property takes effect from the day that the demand was made. Private creditors of the wife cannot, without her consent, demand the separation of property. But in cases of bankruptcy or insolvency of the husband, creditors may exercise her rights to the amount of their claims. Creditors of the husband may obtain redress against a separation of property adjudged, and even executed, in fraud of their rights; they may even make themselves parties to the suit, on the petition for separa

tion, in order to contest it. A wife who has obtained a separation of property must contribute in proportion to her means and to those of her husband, to the expenses of the household, and to those of the education of their children. She must bear these expenses solely if the husband has no means. A wife judicially separated, or separated only in property, regains the uncontrolled management of her property. She may dispose of her personal property, but she cannot alienate her real property without the consent of her husband, or on his refusal, without that of the court of first instance. Upon a partition of the community each consort or heir takes from the bulk of the property (1) his or her private property that did not enter into the community, if it exists in kind, or the property acquired by reinvestment. (2) The price of the reaproperty alienated during the community and not reinvested. (3) Indemnities due to him or her by the community. The claims of the wife take precedence over those of the husband for property which no longer exists in kind. A wife who renounces the community and its effects forfeits her right to the property of the community, and even to the personal property which she herself brought to it. She has a right to retain wearing apparel, etc., for her own use. A wife who renounces has a right to recover: (1) Real property belonging to her, when not alienated, or the real property which has been bought as reinvestment. (2) The price of her real property which has been alienated and reinvested without her consent. (3) All the indemnities that may be due to her by the community. By her renunciation she is discharged from all the debts of the community, both as regards her husband and as regards creditors.

Married persons may modify the legal community of property by any kind of agreement not contrary to law. The principal modifications are: (1) That the community shall only comprise property acquired in common. (2) That the present or future personal property shall not be in common, or only partly so. (3) That it shall comprise the whole or part of the real property, present or future, by changing it into personalty. (4) That the consorts shall pay separately debts contracted before marriage. (5) That in case of renunciation the wife may take back free and clear from all burdens whatever she brought into the community. (6) That the survivor shall have stipulated benefit (préciput). (7) That the consorts shall have unequal shares. (8) That a community of all their property in general shall exist between them. Consorts may exclude from the community all their personal property which they at present or may in future possess. If they put part of it to the amount of a certain sum or value into the community, they are deemed to have reserved for themselves the remainder. Upon the dissolution of the community each consort has a right to take back the value of the personal property that he or she brought into it at the time of the marriage; also that which has accrued to him or her since.

The stipulation by which the consorts, or either of them, bring into the community the whole or a portion of their real property, whether present or future, is called ameublissement (ameublir un immeuble - to change real property to personalty—an immeuble to a meuble). It is either definite or indefinite. It is definite when the consorts declare their intention to change to personalty and bring into the community a particular realty for the whole, or to the amount of a given value. It is indefinite when it simply declares that they will bring into the community real property to a certain amount. The effect of this definite ameublissement is to convert the real property affected by it into the goods of the community as personal property. When the whole of the real property of the wife is so converted, the husband may dispose of it as of the other

personalties of the community and may alienate the whole. If the real property is only partly converted for a certain amount, the husband cannot alienate it without the consent of his wife; he may, however, mortgage it without her consent; but only to the extent of the portion rendered movable. The stipulation by which consorts agree that each shall pay separately his or her personal debts binds them when the community is dissolved, to refund respectively debts which are proved to have been paid by the community. A wife may stipulate that in case of renunciation of the community she shall take back a whole or a part of what she brought into it, either at the time or during the marriage.

In

Préciput by Agreement. This stipulation by which the surviving consort is authorized to take, before any partition, a certain sum or a certain quantity of personal effects in kind, takes effect in favor of the surviving wife only when she has accepted the community; unless in the marriage contract such right has been reserved to her even in the event of renunciation. default of such reservations, the préciput can only be taken out of the divisible bulk of the community, and not out of the private property of the predeceased consort. Préciput is not regarded as a benefit subject to the formalities of gifts inter vivos, but as a marriage agreement. When the community is dissolved by death the préciput (benefits stipulated by will or by law in favor of one of several co-heirs, or a benefit stipulated by marriage settlement in favor of the surviving husband or wife), may be at once claimed.

Consorts by their marriage contract may establish a general community (à titre universel) of their real and personal property, present and future, or of all their present property only; or of all their future property only. They may enter into such agreements as they please, provided they do not infringe upon the law. Community by agreement is subject to the rules of legal community in all cases where there is no express or implied derogation of the law.

When the consorts, without subjecting themselves to the dotal system, stipulate that there shall be no community or that they shall remain separate as to property, such stipulation does not give the wife the right to administer her property, nor to receive the fruits thereof, which are deemed to be brought by her to her husband for household expenses. The husband retains the management of the real and personal property of the wife. When the consorts stipulate by the marriage contract that they should be separate as to property, the wife retains the entire management of both her real and personal property and the free use of her revenues. They both contribute to the household expenses. The wife cannot alienate her real property without the special consent of her husband, or on his refusal, without being judicially authorized.

Dowry. -Dowry under the French Code, as generally understood, is the property which the wife brings to her husband to defray expenses incident to marriage. Under the dotal system all that she settles, or that which is settled upon her in the marriage contract, is dotal, unless there is a stipulation to the contrary. A settlement in general terms of all the property of the wife does not include property that may accrue to her. A dowry can neither be settled nor increased during marriage. The husband has the sole control of the dotal property during marriage. If the marriage is dissolved by the death of the wife, the interest and fruits of the dowry to be returned go for the benefit of her heirs from the day of the dissolution. If it is dissolved by the death of the husband, the wife has the option of demanding the interest of the dowry during the year of mourning (l'an du deuil), or of claiming maintenance during the same period at the expense of her husband's succession; but in both cases her lodgings during the year and her mourning

must be supplied to her by the succession, and without being deducted from interest due to her.

Paraphernalia.-All the wife's property that has not been settled in dowry is her paraphernalia. If all her property should consist of such, and if there is no clause in the marriage contract that she shall share the expenses incident to marriage, the wife must contribute one-third of her income. The wife has the use of her paraphernalia, but cannot dispose of it without authority of her husband or judicial authority. I have endeavored to give you a general outline on the subject, leaving it for you at your leisure to examine it more fully in detail. You will find the French law in respect to the legal status of husband and wife, in all their relations as such, the most full and complete law extant.

By the Laws of Holland, lawfully contracted marriages, so far as they are not avoided by a special antenuptial contract, have relation either to the person or the goods of the parties. The wife becomes by marriage, as it were, a minor; and the husband her curator or guardian; she has no power to appear in courtis not capable of herself to euter into any contract without the knowledge or consent of her husband, so as to bind her to others, except so far as she may clearly appear thereby to have derived an advantage or profit, or that she, with the knowledge of her husband, has carried on trade openly. By this power of her husband over her she is bound and liable for all debts and engagements contracted by her husband, even without her knowledge, and equally with him during the marriage and after his death, for one-half thereof, except the obligation arises from some crime on the husband's part; the husband may at his pleasure alienate or incumber the wife's property, without her consent thereto. If, however, the husband make such a manifest misuse of the marital power as is likely to bring the wife to poverty, the law affords her the means of checking him. The usual step in such a case is a petition that the husband's person aud property may be placed under curatorship.

When not limited or excluded by a previous marriage contract, the law is that community of goods takes place immediately on the completion of the marriage, since it is an established rule in the States of Holland, that man and wife have no separate property, and so binding is this that the community once introduced by marriage can in nowise be done away with; nor does it make any difference whether it be the first or second marriage of the parties. Is this reasonable when there are children by the former marriage? Vide Bynkershoek Quant Jur. Lib. 2, cap. 2. There are two cases wherein this community does not take place by marriage. (1) In clandestine marriage of minors. (2) In marriages between parties who have eloped. This community extends to every thing possessed by the parties on either side at the time of marriage, or acquired by them during marriage, whether by inheritance, legacy, donation, or otherwise, and no profit of any kind is excepted. You will notice that the French law does not go so far as this. Property which after the death of the present possessor, goes to the eldest in descent of the family; also goods affected with a trust, and the like. As the parties enjoy alike the profit or gain during marriage, so are they also equally affected by all the losses and charges of the property on either side, among which are to be reckoned the debts, not only those contracted during marriage but also those with which either of the parties was affected before marriage.

The consequences of the community of goods thus established are as follows: (1) The goods of both parties brought into community at the marriage, as well as those acquired, are during the marriage common. (2) This property, during marriage, is under the control and disposition of the husband. (3) All debts

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contracted before the marriage are common, and must be paid out of the common estate. (4) At the death of either of the parties this community of goods ceases ipso jure. (5) The common goods of the husband and wife are then divided into two parts, the one half assigned to the survivors and the other half given over; also those with which either of the parties to the heirs of the deceased party.

Effect of English Marriage. By the English law, husband and wife are constituted one person; the very being and legal existence of a woman is in many respects suspended during her marriage; and she is under his complete control and protection and cover, and was therefore called in the law French of the times a feme-covert, fæmina viro co-operta is said to be covert-baron or under the protection and influence of her husband, her baron or lord; and her marriage condition is called her coverture.

Out of the union of husband and wife spring almost all the legal rights, duties and disabilities that either of them acquire by marriage. According to the common law a man cannot grant any thing to his wife or enter into any covenant with her, since such an act would suppose her separate existence. As a general thing compacts made between husband and wife before marriage are valid by their intermarriage. A man may, however, covenant with others, as trustees for his wife; and a husband may convey to trustees for her benefit. A woman may act as agent for her husband, as that implies no separation from, but rather as his representative. By the common law of England the husband acquires all the personal property belonging to the wife at the time of the marriage, or which may accrue to her during its subsistence, except her paraphernalia, and such property as may be settled for her separate use. He is also entitled to all her chattels, real or leasehold interests, and to her choses in action - such as debts due to the wife on bond or otherwise, these are so far excepted that they do not in general become the husband's until he reduces them into possession. If he dies before this is done, they remain to the wife, and if she dies before this is done, they form part of her estate. The husband is also entitled to the management and to the rents and profits of the wife's freehold estates during her marriage. After his wife's death he may enjoy for his life, lands of the wife of which they were seized in her right, for an estate of inheritance, if issue of the marriage is born capable of inheriting the property. When the husband seeks in a court of equity the benefit of any of his wife's property, and when no other adequate provision has been made for her, the court will order part of such property to be settled upon the wife for her separate use. M. Paterson's Compendium, p. 297. As to the rights of property acquired by the wife on her husband's death, the law of England allows them to stand on a very precarious footing. The widow's dower right in her husband's estate, was once a very valuable provision, but it has now dwindled into insignificance. Under the act 3 and 4 Will. IV, which applies to all marriages contracted after the first of Jan., 1834, dower cannot be claimed: First, where the estate of the husband has been disposed of by him either in his life-time or by will. Second, a simple devise of real estate subject to dower, by the husband to the wife, will bar the dower, unless a contrary intention be expressed, and Third, any declaration by the husband, either by deed or will, that the wife shall not have dower, will defeat her claim. If the husband happen to die intestate, the statute of distributions (22 and 23 Car. II, ch. 10) gives to the widow one-third of his personal property when he leaves issue living, and one-half when there is none; but this is a mere chance or hope of succession, which may be defeated by the husband's will.

By the Scottish law the husband becomes the curator

or guardian of his wife, and should be joined with her in deeds and law proceedings to which she is a party. Although she has control over her separate estate, yet her husband's consent is necessary to validate deeds granted by her. Her personal obligations are binding if they are in rem versum of the wife, or have special reference to her own property, or have been granted by her while carrying on trade on her own account, her husband being abroad, or when she is judicially separated from her husband. A married woman, without her husband's consent, may validly execute a settlement, or dispose of her separate estate by any deed which is not to take effect till her own death. Marriage by the Scottish law transfers to the husband all the personal property of the wife at the time of the marriage, or which may accrue to her during its subsistence, with the exception of personal bonds bearing interest, and her paraphernalia. The wife is proprietor of her real estate; but the husband is entitled to the administration and to the whole yearly rents and profits during the marriage. After the wife's death and there has been a living child born of the marriage, and the wife has left no heir to her heritage by a former marriage, the surviving husband has a life-rent right to the rents and profits of her heritable estate, which is called the curtesy. The rights of the spouse, at common law, may be modified by settlements before marriage, and any gift or bequest by a stranger to a married woman may be destined for her separate

use.

By the act of 25 and 26 Vict., ch. 84, amending the law regarding congugal rights in Scotland, some important changes have been made in relation to the property rights of married women.

1. When a married woman succeeds to property, or acquires a right to it by any other means than her own industry, neither the husband, his creditors, nor any one claiming through him, shall be entitled to such property, except on the condition of making therefrom a reasonable provision for the support and maintenance of the wife. This claim must be made before the husband or his assignees shall have obtained possession of the property, and before his creditors shall have attached it.

2. After a decree of separation, a mensa et thoro, obtained by the wife, all property which she may acquire, or may come to her, shall be considered as her own, and she may dispose of the same as if she were unmarried, and in case she die intestate, it will pass to her living representatives, and while so separated she is capable of entering into obligations and be liable for wrongs and injuries and be capable of suing and being sued, as if sole.

3. When a wife has been deserted by her husband she will be protected by the court in all property which she has acquired by her own industry or which she has succeeded to or may succeed to after desertion, against her husband or his creditors, or any one claiming through him.

On the death of the husband, the surviving wife, if she has no conventional provisions, has a right to the terce, which is a life-rent of a third of the heritable property in which the husband died infeft, including burgage subjects. She is also entitled to the jus relicta, which is a share of the free movable estate goods in communion, amounting to one-half, where there are no children of the marriage, or where the husband has left no children by a former marriage, and to onethird only where there are children. These legal provisions of the widow are not liable to be defeated arbitrarily at the pleasure of the husband, as the corresponding rights of the widow to dower and a share of the movables may be in England.

While the Roman law allowed great freedom to married women, as regards their proprietary powers, the law in modern times lays them under severe restric

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