Jennie L. Wilson

“ It is immaterial how the intention to marry is expressed. It has been held in this state that a marriage was legal, where the woman intended present marriage, though the man did not, where they had assumed the relation of husband and wife, and his conduct had been such as to justify her in believing that he had intended present marriage. Marriages by consent only, are not rendered void by a provision punishing parties for solemnizing marriages in any other manner than that prescribed by law. ”

“ By the common law, adultery and seduction were not classed with crimes, but were only civil injuries for which compensation might be recovered by husband, father or guardian, but the woman, who might be wronged, had no right of action for the injury to herself, and the State did not recognize any wrong to society by an injury to the person of one who was civilly dead. ”

“ If a man murdered his wife it was as if he had murdered a stranger, and he might avail himself of the benefit of clergy, and secure immunity from punishment, provided he could read, but women were denied all benefit of clergy because of their sex, and because they "were not called upon to read." Murder of husband. If a wife killed her husband it was a much more serious offense, he being her lord, and she was guilty of treason and subject to the same punishment as if she had killed the king. ”

“ Contracts between husband and wife, though for a legal and valuable consideration, or with a view to separation are invalid, the interest of either during the lifetime of both, being merely contingent and inchoate, but an agreement previous to marriage by which each waives all right in the other's estate, or by which the wife relinquishes her right of dower, is valid. A woman can claim no dower in her husband's estate, after his death, if she has procured a divorce from him while living and the divorce is in force at the time of his death. ”

“ The validity of a will depends upon the mental capacity of a testator and the fact that he was uninfluenced in making the disposition of his property. If it appears that the testator was incapable of exercising discretion and sound judgment and of fully realizing the effect and consequences of the will, though he may not be absolutely insane, he will not be in such mental condition that he can make a legal will. ”

“ A policy of insurance on the life of an individual, in the absence of an agreement or assignment to the contrary shall inure to the separate use of the husband or wife and children of said individual, independently of his or her creditors. And the avails of all policies of insurance on the life of an individual payable to his surviving widow, shall be exempt from liabilities for all debts of such beneficiary contracted prior to the death of the deceased, provided that in any case the total exemption for the benefit of any one person shall not exceed the sum of five thousand dollars. ”

“ A reasonable cause for desertion must be some wrongful conduct on the part of the other party, and must be of such a serious nature that it would prima facie entitle the party deserting to a divorce. If husband and wife mutually agree to separate, such separation will not constitute ground for divorce, unless the party applying for the divorce, in good faith expresses a desire to live with the other. ”

“ In cases where the joint accumulations of husband and wife are only sufficient to support the wife in comfort after the death of her husband, the law of descent as it now stands, may result in positive hardship and suffering. No matter how small the amount of property belonging to a deceased husband may be, one-half of it will descend to his heirs, if he has no children, and the wife be left with no means of support. ”

“ Actual occupancy is necessary to invest property with the homestead character, but as the exemption right is for the benefit of the whole family and not alone of the owner, the fact that the head of the family is absent, and may even have acquired property and residence in another state with the intention of removing his family there, will not divest the homestead of its exemption right, so long as the family continues to occupy it. And the fact that the husband has abandoned the homestead will not affect the homestead right, so long as the wife and family remain in occupancy. ”

“ Every person who commits the crime of adultery shall be punished by imprisonment in the penitentiary not more than three years, or by a fine not exceeding three hundred dollars and imprisonment in the county jail not exceeding one year; and when the crime is committed between parties, only one of whom is married, both are guilty of adultery and shall be punished accordingly. No prosecution for adultery can be commenced but on complaint of the husband or wife. ”

“ If a woman marries a man knowing him to be intemperate, though she does so in the hope of reforming him, the courts will not interfere after marriage to grant her relief from the result of her misplaced confidence, but where the habit has been acquired subsequent to the marriage and has become fixed and the husband is habitually drunk, though not in such condition during business hours, it is such habitual drunkenness as will entitle the wife to a divorce. ”

“ Cruel and inhuman treatment, to constitute ground for divorce must be of such a nature as to endanger life, but need not necessarily consist of physical violence. Even where no single act or number of acts can be shown which might cause reasonable apprehension of harm to life, if the ill treatment as an entirety is of a nature to affect the mind and undermine health to such a degree that the life will be ultimately endangered, it will entitle the injured party to a divorce. ”

“ When it is sought to have a guardian appointed for a person of unsound mind, the test of his mental capacity is not the degree of prudence and foresight he manifests in the management of his affairs, for "the law does not assume to measure the different degrees of power of the human intellect, or to distinguish between them where the power of thought and reason exists," but the question to be determined is whether or not he possesses sufficient ability to understand in a reasonable manner the nature and effect of his acts, or the business he is transacting. ”

“ In this age of general intelligence, when learning in some degree is so readily attainable, the maxim, that "Ignorance of the law excuses no one," has a measure of justice in it, which could not be claimed for it in former times, and it is most certainly true that, "As the subjects of law, if not as its makers, all ought to know enough to avoid its penalties and reap its benefits." ”

“ One-third in value of all the legal or equitable estates in real property, possessed by the husband at any time during the marriage, which have not been sold on execution or other judicial sale, and to which the wife has made no relinquishment of her right, shall be set apart as her property in fee-simple, if she survive him. The same share of the real estate of a deceased wife shall be set apart to the surviving husband. All provisions made in this chapter in regard to the widow of a deceased husband, shall be applicable to the surviving husband of a deceased wife. ”

“ As the direct fact of adultery can seldom be proved, when a divorce is asked on this ground, it will be sufficient if the fact can be shown by circumstances which would be inconsistent with any rational theory of innocence, and such as would lead the guarded discretion of a just mind to the conclusion of the truth of the facts. ”

“ The general rule is that the domicile of the wife and children is to be considered the same as that of the husband, but in a proceeding for divorce the law recognizes that husband and wife have separate domiciles, and a valid divorce may be granted where only one of the parties resides, but if they reside in different states, the court having jurisdiction of the party making application for the divorce may grant the decree, but it has no authority to make a decree as to the custody of the children, if they are non-residents of the state where the decree of divorce is rendered. ”

“ The survivor may elect to retain the homestead in lieu of his or her distributive stare of the estate, but in such case the interest is not one which confers any title to the property which can be conveyed or which will descend to heirs or be subject to the lieu of a judgment, but it is merely a life interest which may be terminated whenever the survivor ceases to use and occupy the homestead as such. Whenever the survivor elects to retain the homestead during life in lieu of dower, it cannot be changed for another homestead, and the right will be lost by abandonment. ”

“ Power of husband.
We are told that at marriage the husband "adopted his wife and her circumstances together." He might exercise his power over her person by restraining her of her liberty in case of gross misbehavior, or by giving her moderate chastisement in the same degree that he might administer correction to his children. An early decision of one of our state courts interpreted this to mean that a man might whip his wife with a switch as large as his finger, but not larger than his thumb, without being guilty of an assault. ”

“ Money borrowed by the husband and used in the purchase of articles which, if obtained on credit, would constitute items of family expense, cannot itself form such an item of family expense, that the wife may be held liable, unless the money was furnished at her request, and the account assigned to the party furnishing the money. If a merchant with whom the husband has no account is notified in writing, not to sell goods to the wife and charge them to him, the merchant cannot hold the husband responsible, unless it appears that the latter fails to provide necessaries otherwise for his family. ”

“ A stepfather stands in the position of a parent to the children of his wife by a former husband, provided, he receives them into his family. He is entitled to their services and is responsible for their education and maintenance. The parents can at any time consent to surrender the custody of their minor children and transfer this custody to another by agreement. Articles of adoption properly executed according to the requirements of the law upon that subject, are necessary to invest another with the rights and responsibilities of a parent. ”

“ If he deposits it in a bank or purchases stocks, bonds, mortgages, or other personal property, the law again says part of it shall be hers, if she survives him, and he has not disposed of it while living, as he has a legal right to do. In either case, she cannot control a single dollar during the life of her husband, if he chooses to deprive her of that privilege. The property accumulated during the marriage may be acquired by the wise judgment, strict economy and self-denial of the wife in connection with the time and labor of the husband. ”

“ Husband and wife being one person could not contract nor enter into a business partnership with each other; neither could one convey property to the other without the intervention of a third party. The wife was incapable of receiving a legacy unless it was willed to another person as trustee, for her use and benefit, and if a legacy were paid directly to her, the husband could compel the executor to pay it again to him. ”

“ If a person marries who has a husband or wife living such marriage is absolutely void. In case of absence of the husband a presumption of death does not arise until he has been absent seven years without intelligence concerning him. Where a party is insane or idiotic, and is therefore incapable of consenting, a marriage with such person will be void. ”

“ Should either the husband or wife obtain possession or control of property belonging to the other, either before or after marriage, the owner of the property may maintain an action therefor, or for any right growing out of the same, in the same manner and extent as if they were unmarried. ”

“ The term "necessaries," is not confined to the supply of things actually demanded for her sustenance, such as food, clothing and medicine, but includes all that may be needful for her comfort and happiness according to her rank and station in society. In determining the extent of the husband's liability, it is always proper to consider the wife's social position and the circumstances and condition of the family, and these will, of course, vary in each particular case. ”

“ Where the wife is compelled to leave her husband on account of inhuman treatment, such as would entitle her to a divorce, such desertion cannot be made the basis of proceedings for divorce by the husband, for in such case he and not she is guilty of desertion, and this may be alleged by the wife, with other causes, in seeking a divorce. A wife may be justified in leaving her husband because of his failure to protect her from insult and abuse, and when she leaves him for this cause, her desertion will not be grounds for divorce. ”

“ The disposition of the children is entirely within the discretion of the court, and the custody may be given to either party or may be taken from both and given to a guardian, if it can be shown that neither parent is a proper person to care for them. The best good of the child will be the first and most important consideration in determining to whom the custody shall be given. ”

“ Any person of full age and sound mind may dispose, by will, of all his property except what is sufficient to pay his debts, or what is allowed as a homestead, or otherwise given by law as privileged property to his wife and family. ”

“ A gift to an heir by way of advancement, cannot be considered as any part of the estate for the purpose of increasing the distributive share of the widow, but is to be estimated as part of such heir's share of the property, after the allowance to the wife of her interest. ”