stead acts;-Held, that the wife had but an setting out a homestead without making it subinchoate lien, contingent on her surviving her ject to debts claimed to be chargeable upon it; husband, and not a de facto title in the home- -Held, that the time when such debts were stead premises; and that the sole deed of the contracted may be shown by other evidence husband passed the title for his lifetime, and than the report of the commissioners. Their conveyed the land and the homestead right as duty is merely to allow all legal claims presentto all persons, except the wife in case she ed. Perrin v. Sargeant, 33 Vt. 84. See should happen to survive him. Howe v. Adams, University of Vt. v. Baxter, 43 Vt. 645. 28 Vt. 541. Davis v. Andrews, 30 Vt. 678. 25. Chancery. The act of 1857, No. 28, Jewett v. Brock, 32 Vt. 65. 36 Vt. 260. authorizing proceedings in chancery in respect to 17. The sole deed by a married man of the homesteads, applies as well to homesteads left homestead, or any interest therein, is, under by deceased persons, as to those of persons in the statute of 1860 (G. S. c. 68, s. 10), absolute- life; and the power of the court of chancery ly void to convey it-both as to himself, and as to his wife and children. Abell v. Lothrop, 47 Vt. 375. (1875.) Day v. Adams, 42 Vt. 516. does not depend upon an adjudication of the probate court that such homestead right exists. (G. S. c. 68, s. 13.) Chaplin v. Sawyer, 35 Vt. 286. 18. The spirit of the homestead act and all 26. In a bill to arrest proceedings of a credits provisions indicate that the husband should|itor of the husband to get the occupancy of the not have the power by will to devise it away homestead, the wife and minor children are from his wife and minor children. Meech v. proper parties to join with the husband as Meech, 37 Vt. 414. complainants. Abell v. Lothrop, 47 Vt. 19. A mortgage by husband and wife of 375. land of which a part is occupied as a homestead, 27. Levy of execution. Where an exethough not set out, is valid as to the homestead, cution is levied upon land in which there is a although, as to the residue, void as to creditors. homestead, the levy is irregular unless the Danforth v. Beattie, 43 Vt. 138. homestead is first set out. Fairbanks v. Deveraux, 48 Vt. 550. 20. Under the original homestead act (C. S. c. 65);-Held, that the children of the deceased housekeeper, not of the family of the widow, could not, as against her while occupying the homestead as her family home, assert their respective several rights, and thus share with her in the joint use and in the rents received, nor have partition, nor compel the tenant in possession to hold of them in respect to their several proportionate shares in the estate. Keyes v. Hill, 30 Vt. 759. 21. Probate court. An appeal lies from the decision of the probate court setting out a homestead to the widow. True v. Morrill, 28 Vt. 672. 66 HOUSE (CASTLE). Maxim. The idea embodied in the expression, a man's house is his castle," is not that, as his property, he has the right to defend and protect it by other and more extreme means than he might lawfully use to defend and protect his shop, his office, or his barn. The sense in which the house has a peculiar immunity is, that it is sacred for the protection of his person, and of his family. An assault on the house can be regarded as an assault on the person, only in case the purpose of such assault be injury to the person of the occupant or members of his family, and, in order to accomplish this, the assailant attacks the castle in order to reach the inmates. In this view it is, that it is said and settled that, in such case, the inmate need not flee from his house in order to escape being injured by the assailant, but may meet him at the threshold and prevent him from breaking in, by any means rendered necessary 23. Under the act of 1856, No. 23, provid- by the exigency; and upon the same ground ing that there shall be no homestead right in and reason as one may defend himself from an estate, the assets of which shall exceed $500 peril of life, or great bodily harm, by means after paying all debts and charges of adminis- fatal to the assailant, if rendered necessary by tration;-Held, that the sum assigned to the the exigency of the assault. State v. Patterson; widow, and her dower, should not be reckoned 45 Vt. 308. as part of such assets. Chaplin v. Sawyer, 35 22. The stat. 1855, No. 14, requiring dower to be first set out and then the homestead, was directory merely as to the order of time, but imperative that the value of the widow's share of the homestead should be deducted from the dower. Where one full third of the estate was set out as dower, and afterwards the widow's homestead was set out in the same dower lands; -Held, that this was a substantial compliance with the statute. Doane v. Doane, 33 Vt. 649. (G. S. c. 68, s. 6, Stat. 1866, No. 33.) Vt. 286. 24. In an appeal from the probate court for HUSBAND AND WIFE. I. RIGHTS AND POWERS OF HUSBAND. 1. As to wife's property. II. III. IV. V. VI. VII. 2. To act for her. DUTIES AND LIABILITIES OF HUSBAND. 1. As agent of her husband. 2. As to her own property. DEALINGS BETWEEN HUSBAND AND WIFE. I. RIGHTS AND POWERS OF HUSBAND. 1. As to wife's property. were subject to attachment by trustee process for the husband's debts. Davis v. Davis, 30 Vt. 440. 7. Rents from the wife's real estate during coverture belong to the husband, and do not survive to the wife; but on his decease are assets in the hands of his administrator, and must be collected by him. Shaw v. Partridge, 17 Vt. 626. (Now changed by statute.) 8. The possession of land belonging to a married woman, upon which she and her husband reside, is the possession of the husband alone; and, therefore, where her title depends upon a continuous possession, his acts and declarations, while in possession, showing the character and extent thereof and limiting the claim of the wife, are admissible against such title;-as, that a piece of land, fenced in and occupied with that of his wife, 1. Personal chattels. The wife's personal did not belong to him, but to an adjoining proproperty in possession vests absolutely in the prietor. Holton v. Whitney, 28 Vt. 448. husband upon the marriage; and both the prop- 9. Where a husband possessed and claimed erty and possession of that earned by her after land in right of his wife only, and after his marriage become those of the husband. For death she continued the possession in the same an injury done to such property, after mar- manner, and claimed the land as her own;— riage, the wife cannot join. Such joinder is Held, that she, or her grantee, was entitled to cause of demurrer, motion in arrest, or of error. claim that such possession of the husband Rawlins v. Rounds, 27 Vt. 17. enured to her benefit, and to add it to her own 2. Trespass by husband and wife for the possession to make up the period of 15 years' taking of a horse,-"the proper goods and adverse possession. Holton v. Whitney, 30 Vt. chattels of the said L R," (the wife). Declar-405. ation held ill on general demurrer. Ib. See 10. The husband is entitled to the possession and occupancy of his wife's real estate, post, 103. 3. Distributive share. The distributive and while in possession in the exercise of such share of a feme covert in an estate consisting of his marital rights, though they live together on specific personal chattels, after a decree of dis- the land, it is the sole and exclusive possession tribution, vests absolutely in the husband, and of the husband; and so, also, as to the personal may be reached by his creditors by trustee pro- property on the farm in use by him. Bowen v. Parks v. Cushman, 9 Vt. 320. 10 Vt. Amsden, 47 Vt. 569. 451. 11 Vt. 363. 32 Vt. 775. (Changed by Stat. 1867, No. 21.) cess. 11. Chose in action. The husband must do some positive act to reduce the wife's choses 4. An administrator cannot be held as in action to possession, before they become his trustee of a husband, for a distributive share property; his custody and possession are not of the estate belonging to the wife, before a of themselves a reduction to possession. Barber decree of distribution. Probate Court v. Niles, v. Slade, 30 Vt. 191. Holmes v. Holmes, 28 Vt. 32 Vt. 775;-nor after. Short v. Moore, 10 Vt. 765. 446. 12. The facts that certain promissory notes 5. Lands. Where lands descend to a mar- were all the property that a woman had; that ried woman, her husband, on and at the death she so informed her husband before marriage; of her ancestor, acquires an interest therein, that he, at her desire, procured her wedding either during coverture, or for his own life as dress and other wedding preparations, and was tenant by the curtesy, as the case may be, at the whole expense of furnishing the house; which is immediately subject to attachment and that after their marriage she handed him the levy of execution for his debts. Hyde v. Barney, notes, requesting him to keep them, and that 17 Vt. 280. Mattocks v. Stearns, 9 Vt. 326. he did keep them with his other papers until (Now changed by statute. G. S. c. 71, s. 18.) after her death; and that he was at great 6. Where real estate was conveyed to one expense for her during her last sickness, were in trust for a man and his wife, and her heirs; held to constitute no reduction of the notes to -Held, that, upon her death, the husband took possession by the husband, nor to give any lien the benefit of the trust by survivorship, and upon them, but that they passed to her adminthat the rents and profits in the hands of the istrator. Holmes v. Holmes, 28 Vt. 765. 30 trustee, received after the death of the wife, Vt. 194. Ib., 215. 34 Vt. 260. 40 Vt. 602. 13. If the husband appoints an attorney to II. DUTIES AND LIABILITIES OF HUSBAND. collect the money upon his wife's chose, and the attorney receives the money, her right of 21. Necessaries. A husband is liable survivorship is gone, and she cannot join in a for articles procured by and for his wife, while suit to recover the money of the attorney. The living with him, which are suitable to his cirhusband alone can sue for it. Hill v. Royce, 17 cumstances and station in life-as, a plate of Vt. 190. 27 Vt. 567. mineral teeth-if he permits her to keep the 14. Before the statute of Nov. 22, 1870, articles after knowledge that she had so proNo. 31, the choses in action of a married cured them. Gilman v. Andrus, 28 Vt. 241. woman, dying intestate and without issue, and 22. A husband is liable for necessaries furnnot reduced to possession by the husband, were ished, on his credit, to his wife, while they live distributable wholly to her heirs, as in case of apart as well as when they cohabit, and real estate, and in no part to her surviving especially in a case when they live apart by husband. Holmes v. Holmes, 28 Vt. 765. 30 his consent. His assent in such cases will be Vt. 215. 40 Vt. 602. (Davis v. Burnham, 27 presumed, unless the contrary appear. Frost Vt. 562.) v. Willis, 13 Vt. 202. 15. So long as any act remains to be done by the husband to bring the avails of his wife's choses in action to his beneficial use, the wife's right of survivorship remains. Roberts v. Lund, 45 Vt. 82. 23. A wife voluntarily left her husband, but for what cause did not appear, and for two years had worked at different places, taking care of herself, when she engaged for the defendant who settled with and paid her for her services 16. An equitable title to lands, under a con- her earnings being needed for and applied to her tract of purchase by a single woman, is not a personal necessities, and the husband at no time mere chose in action which, upon her marriage, interfering, or dissenting. In an action by the her husband can control. Gould v. Gould, 29 husband to recover for such services;-Held, Vt. 504. 2. To act for her. that he must be taken to have assented to such course of dealing, and that he could not recover. Norcross v, Rodgers, 30 Vt. 588. 24. Wife deserting. Where a wife refuses 17. A deed of gift to a wife, if delivered to to live with her husband and deserts him in her husband and accepted by him, is a delivery violation of her duty, and without reasonable or to and acceptance by her, and her refusal apart just cause, she cannot bind him to pay for from her husband can be of no consequence. necessaries furnished her by a party who knows Brackett v. Wait, 6 Vt. 411. they live separate and apart. Brown V. Mudgett, 40 Vt. 68. 18. The notice required, by G. S. c. 25, s. 42, to be given to the selectmen of an injury 25. On whose credit. A wife, living upon a highway and claim of satisfaction there- with her husband, purchased necessaries of the for, before bringing suit, when given by a hus- plaintiff, but desired the plaintiff not to call on band alone for an injury to his wife, is sufficient for such case. Barton v. Montpelier, 30 Vt. 650. Babcock v. Guilford, 47 Vt. 519. her husband, as she wished to pay for the goods herself. The goods were charged to the husband. Held, that no fraud, or collusion, or 19. In an action by husband and wife desire of concealment is fairly inferable from against a town for an injury to the wife on a this, nor that the goods were furnished on the highway while riding with her husband ;-Held, credit of the wife. Day v. Burnham, 36 Vt. that the negligence of the husband which con- 37; and held, that a subsequent promise by the tributed to the injury was attributable to the husband to pay was a ratification of the purwife, the same as if she had been wholly acting for herself. Carlisle v. Sheldon, 38 Vt. 440. chase, though made before he knew of such request of the wife. Ib. 26. The plaintiff furnished necessary med20. A gave a mortgage, signed by himself ical service to the defendant's wife, by her proand wife, of their homestead, to secure A's note curement and upon her credit alone, he knowof $500 towards a contract for the purchase by ing the relations of the parties and all other A of a farm, under which contract A took and facts bearing upon the question, and nothing held possession for one year, when the bargain happening subsequently to authorize a transfer was mutually given up, upon A's agreeing to of such credit to the defendant. Held, that the pay $200 for the past use of the farm and that plaintiff had chosen his debtor by the credit the mortgage should stand as a security for that given to the wife, and that the defendant was On a bill against A and his wife to fore-not liable for the services. Carter v. Howard, close for the $200;-Held, that A had author- 39 Vt. 106. Bugbee v. Blood, 48 Vt. 497. ity, as to his wife, to make this agreement, and 27. Credit unauthorized. The defenda decree of foreclosure passed against both. ant's wife, while separated and living apart Wood v. Adams, 35 Vt. 300. from him, purchased at the plaintiffs' store a sum. bill of goods on the defendant's credit, but with-p 32. A wife is not, prima facie, her husband's out his knowledge, she saying he was sick and agent for leasing his lands, or lending his would call on a day named and pay for them. horses, or watches, because this does not come She was before unknown to the plaintiffs, and within the ordinary scope of her business. had never traded with them before, and the Green v. Sperry, 16 Vt. 390. plaintiffs were ignorant of the separation. They 33. A husband left home for an absence of knew the defendant, and had previously sold some months, leaving his stock of cattle, &c., him goods on credit. The goods were such as in the charge of his wife,-the minor sons to are usually purchased for family use, and the assist her. During his absence, and after he had amount was reasonable with reference to the been away two months, his hay and cattle were defendant's circumstances; but he was in no attached, and, by consent of the wife, the offiimmediate want of the goods, and they were cer fed the hay to the cattle while under such not taken to his house, and it did not appear attachment. The husband sued the officer in what disposition she made of them, nor that trover for the hay so fed out. Held, that, they were necessary for her reasonable comfort under the circumstances, the wife was so far and support. Held, that it was not necessary the agent of her husband in that business, that for the defendant to have forbidden the plain- her consent bound him. Felker v. Emerson, tiffs from trading with the wife on his credit; 16 Vt. 653. 23 Vt. 491. that it was a clear case of unauthorized credit, and that defendant was not liable to pay for the goods. Stevens v. Story, 43 Vt. 327. 34. An arrangement between a wife and the debtor of her husband, that such debtor's payment of a certain debt of the husband shall 28. Prohibition. In order to recover operate as a payment of his promissory note to against a husband for goods sold to his wife on the husband, is not within the ordinary powers his credit, after a prohibition by the husband to of a wife in the management of the domestic the plaintiff, against such trading, unless the affairs of her husband, and does not bind him trade has been ratified by the articles going to unless assented to; and this, although the husthe husband's use with his knowledge that they band was sick at the time and wholly incapable were procured on his credit, the plaintiff must of transacting business, and so continued till show affirmatively, not only that the articles his death, and had no other person to transact were suitable to the husband's circumstances in his business. Sawyer v. Cutting, 23 Vt. 486. life and were needed for present use, but that 35. The plaintiff, entitled to receive and the husband had so neglected his duty in the control the rents and profits of land held by his matter of supplying them, that it was necessary wife in dower, gave to the defendant, her son, for some one else to furnish them in order to in the occupation of the land, a writing, saying: supply the then wants of the wife, or wife and "Your mother thinks it is time for her to rechildren. Of the wife's power to this extent, ceive the rents and profits of her thirds, and I as his agent ex necessitate, the husband's pro- have no objection to her doing so. You will hibition cannot divest her. Woodard v. Barnes, therefore make your payments to her as you and 43 Vt. 330. 46 Vt. 335. she can agree, and her receipt to you shall be 29. Attorney's fees. A husband is not as good and safe for you as though signed by liable to an attorney for professional services rendered his wife in defending against the husband's petition for a divorce, nor in procuring divorce on her petition. Wing v. Hurlburt. 15 Vt. 607. III. RIGHTS AND POWERS OF WIFE. 1. As agent of her husband. a me." Held, that this created not merely an agency in the wife to receive the rents in behalf of the plaintiff, but was the yielding of his marital right of control, and conferred upon the wife a power coupled with an interest to be exercised at her will until revoked, and to her use, not to his; and authorized the defendant to make arrangements with the wife for the payment of rents, in repairs which were to some extent beneficial to the life estate. Cheney v. Pierce, 38 Vt. 515. 30. The power of a wife to bind her husband by her contracts is founded upon the sole 36. Where the defendant, in his absence ground of agency, she having, as wife, no orig- from the State, left his wife to keep house and inal and inherent power to bind him by any manage for him at home what might be necescontract made by her. Sawyer v. Cutting, 23 ary to be done-it was held, on the facts stated, Vt. 486. that her agency, apparent and in fact, extend31. The wife, whether the husband is absented to the borrowing of money to pay a debt or at home, sick or in health, is not to be pre- contracted by the defendant for a set of gravesumed his agent generally, nor to be intrusted stones for a child, although the defendant had with any authority in relation to his affairs, other than that which it is usual and customary to confer upon a wife. Ib. sent her money to pay that debt, but she had prudently expended the money in the purchase of necessaries for the family; and that the de fendant was liable to pay for the money so bor-¡tion of a trustee, upon her paying the defendrowed. Meader v. Page, 39 Vt. 306. ant that part of the purchase money paid by 37. Wife's admissions. The admissions him. Gould v. Gould, 29 Vt. 504. of a wife do not bind her husband, unless made 42. Wife's pledge. A wife living apart in the execution of an agency created by him. from her husband, he not providing for her, Thus, her admission that she had received pay- may pledge her own estate for payment for ment of a debt due her husband is not admissi- necessaries furnished her upon her credit. ble, without proving that the husband had made Frary v. Booth, 37 Vt. 78. her his agent to receive payment. Gilson, 16 Vt. 464. Gilson v. 43. Sole trader. Where a wife, with the consent of her husband, carries on business in 38. Wife's gift. Where a wife, without her own name as sole trader, or otherwise, the asking leave of her husband, gave to her old property and proceeds of the business may, in and needy brother a frock, claimed to be worth equity, be held by the wife's creditors for her $5;-Held, that, by the common law and com- debts contracted in that business, against any mon custom of Vermont, a wife has the legal claim or right of the husband, and, in most right to give such a reasonable charity as this, cases, against his creditors; and she may without asking leave; it being a reasonable charge the same for such debts. Partridge v. and moderate gift, and fully within the means Stocker, 36 Vt. 108. Frary v. Booth. of the husband and the reasonable rights of the wife; and that the husband could not annul the gift. Spencer v. Storrs, 38 Vt. 156. 2. As to her own property. 39. Where a wife contracted a debt before her marriage, and, after her marriage, paid it out of what was her own funds before marriage, and such payment was not disaffirmed by her husband in reasonable time;-Held, that he could not recover it back,-least of all, in the action of book account. Hall v. Eaton, 12 Vt. 510. 44. Will. A married woman, with the express consent of her husband, may dispose of her estate by will; and, quære, whether since the statute expressly excepts from the right of making wills persons not of full age and sound mind, married women are not included-the language of the statute of 1821 being, "every person, infants, idiots, and persons of non-sane memory only, excepted," &c. Fisher v. Kimball, 17 Vt. 323. See Morton v. Onion, 45 Vt. 145. (By G. S. c. 71, s. 17, express power is given to married women to devise their lands; and by stat. 1870, No. 31, to bequeath their personalty.) 40. An agreement of the defendant with a 45. Note. A promissory note to husband married woman to convey to her a parcel of and wife, upon a consideration moving from land, upon her paying him a note due from her the wife, as where given on purchase of her husband, was, after tender of performance on property, survives to the wife, and does not her part, decreed to be specifically executed; pass to his administrator. Richardson v. Dagand held, that it was no excuse or defense for gett, 4 Vt. 336. the defendant, that the husband had contracted| 46. Execution. The lands of a married for the purchase of the residue of the same woman can be legally set off on execution in tract of land, and had become insolvent and satisfaction of her debts contracted before marunable to perform his contract; nor that the riage ;-as where the judgment and execution conveyance of this parcel alone would work a were against the husband and wife. Fox v. detriment to the residue; nor that the orators Hatch, 14 Vt. 340. had a remedy at law for damages. Washburn v. Dewey, 17 Vt. 92. 47. Bond. A bond was given to husband and wife, for a consideration moving from the 41. Husband's equity. The oratrix, while husband, conditioned for the delivery of certain unmarried, had contracted to purchase a parcel specific articles to them yearly during their of land, and had paid the larger part of the natural lives for their support, the one-half to price, and had gone into possession, the vendor be discontinued on the death of either obligee. retaining the title as security for the unpaid Held, that after the death of the husband, the purchase money. While so in possession she wife had at least an equitable interest in the married the defendant, and he, without her bond, and had power to control and cancel it. knowledge or consent, paid the balance of the Briggs v. Beach, 18 Vt. 115. price, and induced the vendor to convey direct- 48 Statutory exemption. Under C. S. ly to him. On a bill in equity, the chancellor c. 58, s. 15, exempting from attachment and decreed that the defendant convey the premises execution the "rents, issues and profits" of the to a trustee "for the sole use and benefit" of wife's land for the husband's debts;- Held, that the oratrix-thus depriving the defendant of the yearly products, such as hay, &c., were not his interest as husband in the estate. On ap-exempt. Bruce v. Thompson, 26 Vt. 741. peal, this decree was modified by directing a (By G. S. c. 71, s. 18, the word "profits" is conveyance to the oratrix, through the interven-changed to products.) |