The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-07-18

was entitled not even to S495. The widow
thereupon made the third and final appeaI
In the case to the Court of Appeals The
matter was argued on May T. 1897. The
decision was reached on June 8, and hand
month in the first week of July. The opin-
ton is written by Judge Vann and concurred
In by the other members of the court
The chief point before the court to decide
was whether after the intermarriage of the
parties the contract still continued in force.
In support of the evident desire of the hus-
band so to regard it the payment of S. on
account was instanced.
Said contract, however improbable and
extraordinary it may appear, must, for the
purpose of this appeal be accepted as
found by the surrogate says Judge Vann.
IN THE DARK AGES.
"At the date of the contract but slight
advance had been made in legislation
toward relieving married women from the
harsh features of the common law with
reference to the ownership of personal
property and the control of real estate be-
longing to them at the time of marriage.
The great enabling act of 1860 had not been
passed, and the right of a married woman
to acquire property by her trade, business.
labor or services. carried on or performed
on her sole ana separate account, did not
exist. While she could hold her property
after marriage the same as before and
could take by gift or grant from others
than her husband, Notwithstanding her
marriage, she could not create property by
TO her earnings, even for services rendered
on her own account Such was the law
when the contract under consideration was
made between Margaret Walker and John
CalIister. That contract was, of course,
valid in all respects until the intermarriage
of the parties thereto, but from that time
forward the husband became absolutely en-
titled to the services of his wife without
paying for them BY entering into the
marriage contract she implicitly agreed TO
render services for her husband without
payment therefor, and while she was not
obliged to serve as clerk in his office, IL
she did so voluntarily she could not en-
force any promise of payment, however
solemnly made. The right of the husband
to his wife's services was an essential part
of that contract, the same as his obligation
to support her. The contract made before
marriage to perform services for compen-
sation and the contract made by marriage
to perform services without compensation
could not both exist at the same time"
Judge Vann does not agree that the first
contract was entered into with view to
contract between Mr. and Mrs. Callister,
he says, could not be made and from Its
the previous contract for clerical services,
which, In the absence of an express find
ing, we must assume was not made in con-
temptation of marriage. The Facts round
do not permit the inference that he in
tended by the agreement Of 1856 to waive
his common law right to her services II he
should subsequently marry her, for there
is nothing to indicate that they then con-
ternplated marriage. The contract, as
fOund, Is presumed 10 embrace all tIlS sup
ulations Of the parties, and its failure to
state, directly or indirectly, that It was
made in view of marriage, and the absence
of any fact indicating that marriage had
then been thought of, excludes the subject
of waiver from consideration. What took
place after marriage by way of ratitca-
ton, performance or partial payment could
not change the obligation assumed by
either party when they intermarried. A
man cannot be entitled to the services or
his wife for nothing by virtue of UNIFORM
and Interchangeable marriage contract, ana
at the same time be under obligation 10
pay her for those services by virtue or
Contract made before marriage. She can
not be his wife and his hired servant at
the same time"
All concur in this decision which is dis
cussed at length in the New York Reports
for July 8.