The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-02-20

"hSio ouCh appears 10 bo tAc Liahi
fest intention of the legislature. In
the statute under consideration,
however, tie word evidently was in
tended 70 be used in its more re-
stricted and more usual sense. One
object of the statute was TO give
married woman wide control over
her property, both real and personal.
The clause to which the prlviso 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. If
sale" includes cease" then what
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 cannot be coextenslye
with that to which il Is an exception.
The Legislature apparently consider
ed that even a mortgage might not
be covered by the term sale, for
mortgages also are expressly except
cd by this proviso. In Sullivan ".
Barry, 46 y. j. l.. l, under provIso
that no conveyance of her real
estate, OF any instrument cucumber
ing the same" should be executed by
a married woman without her hus-
band joining therein, the Court said,
Neither the word convey nor EN-
cumber,' according 10 its ordinary
Specification, Is expressive of the act
of creating IA tenancy fer years IN
lands. The former of the terms Is
appropriate to the transfer OF title
to freehold, the latter to putting
the property in pledge for the pay
ment of money" and, In view OF the
general purpose of the statute to
give a married woman the exclusive
use and benefit of her realty, except
ing the right to convey or mortgage
| it, sit would be most violent pre-
sumption that the legislature meant
| to say that she should be permitted
to occupy aud cultivate her lands IN
person, independently of the consent
| of her husband, but that she should
not, in the absence of such concur
renee, turn them to profit through a
renting in the ordinary mode" The
word s'conveyed" was similarly con
strued in Perkins " Morse, rs Me. IL
| The court said, IA lease may be In
| sense conveyance, but such Is not
the commonly accepted nor the
accurate meaning OF the term
When we say premises are leased we
generally mean that the use OF them
is transferred; and by the term con.
veyed that the title Is decided.
| 10
In the management OF her property
x = How can she manage this
property or control its income, when
not occupying it, unless she can rent
it?" The reasoning of these decis
ions applies to 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
seouently acquired property, 1T may
be stated as a general rule establish
ed by numerous decisions, thai
statutes Of this kind may relate tC
prior as we'll as subsequent MARI
ages. but that they cannot divest vest
ed rights. See Bishop on Married
Women, Secs. $3.50; Cooley, Const
Lin. 9Th Ed. pp. 44O-2; and cases
mira. As to what marriages are EN-
braced in the Act, the question Is
what was the intention of the legIs
lature, as shown by the words of tn
Act: as to what rights are excepted
from the operation of the Act, tn
question is, what rights are vested.
Our statute relates to both prio
and subsequent marriages. 1t ma.
be conceded for the purposes of thi
case, that, as argued by counsel, tn
words. ''shall, upon her marriage
remain her separate property" i
Section 1, refer only to future MARI
ages. But these words affect onl
the first part of Section l, which doe
not affect the present case. In
latter part of the same Section make
no distinction between prior and sui
seouent marriages. The same IS tru
of the other parts of the Act,-cor
ferrino upon married women tn
mower to contract, to sue and be sueC
to act as executrix, &c. These a
refer to future transactions b
women whether married before O
after the passage of this Act. Th
fact that vested rights were expressl
excepted from the operation of til
Act also shows an intention to IL
clude women already married, fo
otherwise there woHld be no veste
rights TO be excepted. Further,
the first part of Section 1 makes tn
whole Act refer only to future MARI
ages it also makes it refer only
property acquired before marriag'
and not to property acquired durin
coverture even by women sfterwaro
married, which was evidently ia
from the intention of the legislator
I As to vested rights, since the Ian
was acquired by the wife before til
passage of the Act, the husband hs
, already become invested with an g
tate in the land for the joint lives {
| hipnaaE and mis- Wifa This cOnl