The Hawaiian gazette., 1894-02-20


where such appears to be the mani
fest intention of the Legislature. In
the statute under consideration,
however. the word evidently was IN
tended to be used in its more re-
stricted aud more usual sense. one
object of the statute was to give
married woman wide control over
her property, both resl and personal.
The clause TO which the priviso is an
exception enables her to dispose OF
her property, real and personal, IN
the same manner as If she were sole
This covers all kinds of disposition.
Sales and mortgages Of real estate
are then expressly excepted III
sale" includes "lesse." then Whist
disposition of real estate does 1t not
include: And what is there left OF
the clause which enables married
woman to dispose Of real property IN
the same manner as il she were sole!
The exception csnnot be eoe3tenslVe
with that to which 1t Is an exception.
The Legislature apparently consider
ed that even q mortgage might not
be covered by the term sale, Tor
mortgages also are expressly except
ed bv this proviso. In Sullivan V.
Bsrry, 46 y. j. L. l, under provlso
that no conveyance OF her real
estate. or any instrument cucumber
ing the same" should be executed by
8 married womsn without her hus-
band Joining therein, the Court ssld,
Neither the word convey nor EN-
cumber.' sccording to its ordinary
siCnifcstion. is expressive OF the act
of cresting 8 tenancy fer years IN
lands. The former OF the terms is
appropriate TO the transfer OF title
to q freehold. the latter to putting
the property in pledge for the pay
ment Of money snd, IN view OF the
general purpose of the statute TO
give 8 married woman the exclusive
use snd benefit of her realty, except
ing the right to convey or mortgage
ii. lit would be most violent pre-
sumption that the legislature meant
to ssy thst she should be permitted
to occupy and cultivate her lands ID
person. independently Of the consent
of her husband. but that she should
not. in the sbsence OF such concur
renee. turn them TO profit through
renting in the ordinary mode Inc
word conveyed" was similarly con-
strued in Perkins ' Morse, IS Me. II.
The court ssid. a lease msy be in a
sense & conveyance. but such Is not
the commonly accepted nor the
accurate meaning OF the term.
When We say premises are lessed We
generally mean that the use OF them
Is transferred: and by the term con-
veyed thst the title Is decided.
4 married woman Is not limited
in the management OF her property.
How can she manage this
property or control its income, when
not OCCUPYING II, unless she can rent
it:" The reasoning OF these decis-
ions applies 20 the present case,
although the word sale" Is used in
stead of conveyance.
As TO whether the statute relates
only TO subsequent marriages or sub
seoueutly acquired property, 1t may
be stated as 8 general rule establish
ed by numerous decisions. that
statutes Of this kind may relate to
prior IS well as subsequent maTrl
ages. but that they cannot dlvest vest
ed rights. See ? Bishop on Married
Women, Secs. 54-56: Cooley. Const-
Lin. 9th Ed. PIP. 1902; and cases
fa17a. As to what marriages are en-
brsced in the Act. the question L.
what was the intention OF the legls-
lature. SIS shown by the words OF the
Act: IS TO what rights are excepted
from the operation OF the Act, the
question is, what rights are vested.
Our statute relates 10 both prior
and subsequent marriages 1t may
be conceded for the purposes OF this
case. that. IS argued by counsel, the
words, shall, upon her marriage.
remain her separate property, n
Section l. refer only 70 future mari
ages. But these words affect only
the first part Of Section l. which does
not affect the present case The
lstter part of the same Section makes
no distinction between prior and sub
segment marriages. The same Is true
of the other parts Of the Act.-con-
ferring upon married women the
power to contract 10 sue and be sued,
to set IS e1ecuuiI. &c These all
refer 10 future transactions by
women whether married before or
after the passage Of this Act The
tsct thst vested rights were expressly
excepted from the operation OF the
Act also shows 81 intention 10 In
clude women already married, for
otherwise there would be no vested
rights TO be excepted Further, il
the first part Of Section l makes the
whole Act refer only to future mari
sges il also makes il refer only 10
property acquired before marriage,
snd not TO property acquired during
Overture even by women afterwards
married. which was eyidentl! far
from the intention of the legislature.
As to vested rights, since the land
was acquired by the wife before the
noeSrra NJ tho Art the husband had