Daily national Democrat., 1859-11-01
An Imnortant Decision.

rights and liabilities of married women in
this State:
w B Is. Before County Judge at
H. W. HANSON Chambers.
Rearian d Smith, Attorneys for Plaintiff
Geo. Rowe, Attorney for Defendant. Pro.
ceedings supplemental to Execution.
1t appears from the examination that Mrs.
Ransom, the wife of the Judgment debtor. is
the owner Of fifteen Shares Of Stock in the
Oltlzens Steam Navigation Company as her
separate property, and that two hundred and
hity dollars, dividends, are now due on said
shares. Upon these facts the plaintiff asks
Tor an order upon the Company to pay the
amount to him upon the Judgment.
The Constitution provides that "all proner
ty, both renl and personal, of the wife owned
or claimed hhy her before marriage, and that
acquired afterwards by gift, devise, or de.
scent, shall he her separate property"
The Statute provides that ''the husband
shall have the entire management and control
OF the common property with the like ahso
lutte power of disposition as Of his own ST. par
ate estnte; and the rents and profits Of the
separate estate Of either husband or wife shall
be de emed common property"
In Selover v. American Russian CONNER
cial Company, Cal. 272. Burnett J Muir
ray, @. j., concuring. held (ohiter) "a more
seTiOns doubt may exist, it would seem. "a To
the validity of the 9th section, the provisions
Of which give the husband the absolute now
er OF disposition of the common property. and
makes the rents and profits of the seDarate
property of both husband and wife common
property. The substance of this section is TO
give all the rents and profits of the wifes
separate properly to the husband leaving her
only reversionary interest The value of
property consists mostly in the rents and
profits; and when Ivy the "act" the husband
has the absolute power Of disposition of these
rents nd profits without the consent of the
wife, what becomes of her right of property
in her separate estate during coverture ?"
The Court then declines to decide the point.
as it is otinvol ed in the case. Hence it ia
left nm open question.
By the Common Law. personal property
owned by the wife before marriage or ne
CURED after marriage Vests in the husband.
unless 10y the terms of the will, deed. contract
or gift, she takes it for her sole and sepdrats
use. Our Constitution makes the mode (uift
descent or devise) of acquisition after cover
ture and the fact Of o1onerShip before cover
ture the rules hy which to determine, as to
what is the separate property Of the wife
apprehend that the same rights and Incl
dents, which Courts of Equity recognize as
belonging to the separate estate of the wife
IN cases III which separate estates are created
under the English Law, will also be recog.
nized us belonging to the greater number of
cases for which our Constitution has made
provision. All our rules establishing and
protecting the separate estates Of married wo
men, whether contained in the PRINCIPLES of
our Equity jurisprudence or in the statutes
are drawn from the Civil Law, which recog-
nizes the distinct, separate, and independent
existence of each husband and wife, SO far ma
relates TO the ownership and control of their
separate estates. In this particular. they
stand as itrangels to each other. As TO her
separate estate, she retains her own individu
ality as much as before marriage. with the
single exception that her husband is her trus
tee for the management of her estate, subject
to removal If lie abuses the trust.
In Story Eq. See. SS. 1880, il is said: when
ever real or personal property is given or
devised or settled upon u married woman for
her separate aud exclusive use, the intention of
the parties shall he etfectuated in Equity and
the wife's interest protected against the mari
tal rights and claims Of her husband and of
his creditors also In all such cases the hus-
band will he held rs mere trustee for her.
and the trust will be enforced in the same
manner as if he were stranger"
Courts of Equity intervene when necessary
to preserve the issues rents and profits of the
separate estate, upon the ground that they
nre rights and incidents belonging to such an
estate. They are part of it; the value of
it-and are vested aud inseparable.
Separate property" as used in the Con-
stiiution, means property set apart for her
sole and separate ase,-such separate property
Ms II Court of Equity would protect ngainst
the husband and his creditors. Soe and
separate use, is what makes it Separate prop
erty." The NSe of course includes the rents
and profits.
In Snyder Y. Webb, 8 Cal. 81, Heydenfelt
j. held: "ln such cases the rents and profits
are always treated as part Of the separate es.
tate"
What would be the consequences of any
other rule2 Suppose the separate estate con-
sisted of mining claims or live stock. In a
few years the original property would be ex
hausted and its value turned into issues,
rents and profits, and all in the hands of the
husband and creditors. without dollar being
left for the wife out Of her own separate es-
tate. Tie Legislature cannot transfer ut
pleasure to the husband, his creditors or
stranger. rights belonging to the wife, and
guaranteed to her by the Constitution.
do not now decide how far her separate
property might be liable for the subsistence
Of her family.
The motion and order are denied
CHARLES LINDLEv,
County Judge.