The Government Class Book Part 17

--3. No person can lawfully remarry who has a wife or husband living.

Such second marriage is, by the common law, null and void. In some of the states, perhaps in most of them, it is declared _polygamy_, and a state prison offense, except in certain cases; as when the husband or wife of the party who remarries has been long absent, and the party re-marrying does not know the other to have been living within the time; or when the former husband or wife of the party remarrying has been sentenced to imprisonment for life; or when the former marriage has been lawfully annulled or dissolved. If, however, a marriage has been annulled or dissolved for the cause of adultery, the criminal party is, in some states at least, not allowed to remarry.

--4. In some of the cases excepted in the preceding section, the second marriage is merely excusable. Although the party to such marriage is exempt from the _penalty_, yet if the former wife or husband is living, though the fact is unknown, and no divorce has been duly announced, or the first marriage has not been duly annulled; the second marriage is void. Where there is no statute regulation, the common law governs, which is, that nothing but death, or a decree of a competent court, can dissolve the marriage tie.

--5. The manner in which marriages are to be solemnized, and by whom, and the manner in which marriage licenses are to be obtained, or notices of marriage published, (which are required in some states,) are prescribed by the laws of the states in which such regulations exist. Marriages may usually be solemnized by ministers of the gospel, judges, justices of the peace, and certain other officers. But by the common law, a marriage is rendered valid by a simple consent of the parties declared before witnesses, or subsequently acknowledged; or such consent may be inferred from continual cohabitation and reputation as husband and wife.

--6. In law, the husband and wife are regarded as one person. By the common law, the husband, by marriage, acquires a right to the property of the wife which she had before marriage, and which she may acquire after marriage. To her personal property, including debts due her by bond, note, or otherwise, he has an absolute right, and may use and dispose of the same as he pleases. Her chattels real, however, which are leases of land for years, though personal property, he can not dispose of by will; and if he makes no disposition of them during his life time, and she outlives him, she takes them in her own right. If he survives his wife, he acquires an absolute right to them.

--7. But to the real estate of the wife, the husband does not acquire an absolute right. He has only a right to the use, rents, and profits thereof during his life, if he shall die before his wife; and in that event she takes the estate again in her own right. If the wife dies first, and there are no children, her heirs immediately take the estate.

If there are children living, the husband holds the estate for life, and on his death it goes to the wife or her heirs.

--8. But this rule of the common law which gives to the husband the possession and disposal of the property of the wife, has been repealed by special enactments in most of the states. By these state laws, the real and personal property of the wife owned by her before marriage, or conveyed to her by any other person than her husband after marriage, with the rents and profits of such property, is declared to be her own, and at her disposal, and not liable for the debts of her husband, except in a few cases specified in the law of each state. In some of these states, although the property of the wife is not liable for the husband's debts, he has the control and management, and the rents and profits of it.

--9. As the husband, by common law, acquires, by marriage, an interest in the property of his wife, he becomes liable for her debts contracted before marriage; but if they are not recovered of him during coverture, he is discharged _Coverture_, in law, is the state of a married woman, considered as under _cover_, or under the power of her husband. Some of the states which have abolished the common law right of the husband to the property of the wife acquired before marriage, have also abolished the common law obligation of the husband to pay the debts of the wife contracted before marriage; her property alone being liable for such debts.

--10. The husband is bound to maintain his wife, and is liable for debts which she may contract for necessaries, but for nothing more. If he refuses to provide for her wants, or if, through other ill treatment or fault on his part, they become separate, he is liable to fulfill her contracts for necessaries, even though he has forbidden persons to trust her. If they part by consent, and he secures to her a separate maintenance, and pays it according to agreement, he is not liable, even for necessaries.

--11. The husband and wife can not be witnesses for or against each other; but any declarations made by a wife when acting as agent for her husband, may be admitted in evidence against him. In a few states, laws have been proposed, and, it is believed, in some they have been pa.s.sed, removing, to some extent, this restriction upon the right of a husband or wife to the testimony of the other.

Chapter XLIX.

Domestic Relations, continued. Parent and Child; Guardian and Ward; Minors; Masters, Apprentices, and Servants.

--1. Parents, as the natural guardians of their children, are obliged to provide for their support and education during their minority, or while they are under twenty-one years of age. At twenty-one they attain the age of majority, when they are said to be _of age_. Under this age they are, in law, _infants_, or _minors_. The father, if he is able, is bound to support his minor children, even if they have property of their own; but in such case the mother is not so bound. But a husband is not obliged to maintain the child of his wife by a former husband. If, however, he takes the child into his family, he is responsible for its maintenance and education while it lives with him.

--2. A father may be liable for necessaries sold to a child. But to be so liable, it must be proved that the contract for the articles was made by his actual authority, or the circ.u.mstances must be sufficient to imply authority; or that neglect to provide for the child, or some other fault on the part of the father, rendered a.s.sistance to the child necessary.

Being bound to provide for his children, the father has a right to their labor or service; and he may recover their wages from any person employing them without his consent.

--3. In general, a minor cannot bind himself by contract. If he lives with his father or guardian, by whom he is properly supplied, he can not bind himself even for necessaries. But if, on contracting a debt, he agrees to pay it after he shall have become of age, he will then become liable. If a minor has no father or other guardian, his contracts for necessaries are binding upon him.

--4. If a minor takes an estate and agrees to pay rent, he will be liable for its payment after he shall have become of age. If he receives rents, he can not demand them again when of age. If he pays money on a contract, and enjoys the benefit of the contract and then avoids it when he comes of age, he can not recover back the consideration paid. And if he avoids an executed contract when he comes of age, on the grounds of infancy, he must restore the consideration.

--5. Minors are answerable for crimes, and may be indicted and tried, and, on conviction, be fined and imprisoned. They are responsible also for acts of fraud. Their age and the peculiar circ.u.mstances in which they were placed, might be such as to exempt them from liability; but in cases of gross and palpable fraud committed by minors who have arrived at the age of discretion, they would be bound by a contract.

--6. In general, male infants and unmarried females under eighteen years, may, of their own free will, bind themselves, in writing, to serve as _apprentices_ and servants, in any trade or employment; males until the age of twenty-one, and females until the age of eighteen years, or for a shorter time. But the minor must have the consent of the father; or if the father is dead, or disqualified by law, or neglects to provide for his family, consent must be had of the mother; or, if the mother is dead or disqualified, then of the guardian.

--7. Pauper children may be bound out by the officers having charge of the poor. And the laws of many of the states, perhaps of most or all of them, very properly require, that a person, to whom a poor child is bound, shall agree to cause such child to be taught to read and write, and, if a male, to be also instructed in the general rules of arithmetic.

--8. Masters have a right to correct their apprentices with moderation for negligence and misbehavior; and they may recover damage at law of their apprentices for willful absence. On the other hand, a master may be prosecuted for ill usage to his apprentice, and for a breach of his covenant. A master is liable to pay for necessaries for his apprentice, and for medical attendance, but he is not so liable in the case of a hired servant.

--9. When an apprentice becomes immoral and disobedient, an investigation of the matter may be had by the proper authorities; and for good cause the indenture may be annulled, and the parties discharged from their obligations. Upon the death of a master, an apprenticeship is dissolved.

--10. There is, it is believed, no statute law in any state, particularly defining the rights and obligations of _hired servants_ and the persons employing them. Both are obliged to fulfill their agreement. If a hired servant leaves the service of his employer, without good cause, before he has worked out the time for which he was hired, he cannot recover his wages. And for immoral conduct, willful disobedience, or habitual neglect, he may be dismissed. On the other hand, ill usage, or any failure on the part of the employer to fulfill his engagement, releases the laborer from his service.

--11. How far a master is answerable for the acts of his hired servant, is not clear. As a general rule, the master is bound for contracts made, and liable for injuries done, by a servant actually engaged in the business of his master, whether the injury proceeds from negligence or from want of skill. But for an injury done by a willful act of the servant, it is considered that the master is not liable. If the servant employs another to do his business, the master is liable for the injury done by the person so employed. But a servant is accountable to his master for a breach of trust, or for negligence in business, or for injuring another person in his master's business.

Chapter L.

Right of Property. How t.i.tle to property is acquired; Wills and Testaments t.i.tle to Property by Descent.

--1. Every citizen of the United States is capable of holding lands, or real estate, and of taking them by devise, descent, or purchase, and of selling and conveying away such estate. Aliens, by common law, have not this power. In many of the states, however, this disability has been removed by statute. On declaring their intention to become citizens, and complying with certain regulations, aliens acquire the right to take and hold real estate to themselves and their heirs. But they may hold and dispose of personal property without any special enactment.

--2. To _devise_ property is to give or bequeath it by will. A _will_ is a written instrument in which a person declares his will concerning the disposal of his property after his death. It is also called _testament_.

This word is from the Latin _testis_, meaning witness. Hence the word has come to be applied to this instrument, which is the witness or proof of a person's will. A person making a will is called _testator_; one who dies without making a will or testament, is called _intestate_.

--3. All persons of full age and sound mind, except married women, may give and bequeath real and personal estate by a last will and testament.

In many of the states, personal estate may be willed at an earlier age.

In a few states, females at eighteen may make a will of real and personal estate. In a few states, personal estate may be willed verbally, if the will is within a specified time reduced to writing, and subscribed by disinterested witnesses. In Ohio such will must be written within ten days after the speaking of the testamentary words. A will of this kind is called a _nuncupative_ will.

--4. In most of the states, laws have been enacted, allowing married women to hold, in their own exclusive right, all the property, real and personal, which they owned at the time of marriage, and which they may acquire after marriage. (Chap. XLVIII, --8.) With the right of possession is also given, it is presumed, the power of disposing of the property by will.

--5. A will devising real estate must be subscribed by at least two, in some slates three, attending witnesses, in whose presence the testator must subscribe the will, or acknowledge that he subscribed it, and declare it to be his last will and testament. If the testator is unable to sign his will, another person may write the testator's name by his direction; but he should sign his own name as witness to the will.

--6. A testator may revoke or alter his will by a later will or writing, executed in the same manner. But the second will, to revoke the former, must contain words expressly revoking it, or directing a different disposal of the property. A will may also be revoked by a sale of the property. And any alteration of the estate or interest of the testator in lands devised, is held to be an implied revocation of the will. Lands purchased after a will has been made, are not conveyed by it. As a general rule, a will is also revoked by the subsequent marriage of the testator and birth of a child, unless the wife and child have been otherwise provided for. The will of an unmarried woman is revoked by her marriage.

--7. By the statutes of some states, a child born after the death of the testator, or born in his lifetime and after the making of the will, inherits a share of the estate, as if the father had died intestate. In some other states, the statute goes further, and gives the same relief to all the children who are not provided for in the will, and who have not had their portion in the parent's lifetime.

--8. A _codicil_ is an addition or a supplement to a will, and must be executed with the same solemnity. It is no revocation of a will, except in the precise degree in which it is inconsistent with it.

--9. After the death of a testator, the will is brought before the court of probate to be proved. (Chap. XX, --5.) When a will has been duly proved and allowed, the court issues letters testamentary to the executor. An _executor_ is a person named in the will of a testator to carry the will into effect. _Letters testamentary_ give him the power to act in settling the estate of the deceased. If he refuses to act, or is not lawfully qualified, the court appoints a person, who, in that case, is called _administrator_; and the court issues _letters of administration_ with the will annexed. Letters of administration are also issued in case of a person dying intestate. They give to the administrator the requisite authority to settle the estate.

--10. Taking property by _descent_, is the receiving of it from an ancestor or other relative dying intestate. If a person dies without making a will, his property falls, or _descends_ to his lawful heirs.

The order or rule of descent is not uniform in this country, being determined, to a great extent, by the laws of the states. In general, however, the real estate of an intestate descends, first to his lineal descendants, that is, persons descending in a direct line, as from parents to children, and from children to grand-children. The lineal descendants most nearly related to the intestate, however distant the relation may be, takes the estate.

--11. If any children of an intestate are dead, and any are living, the inheritance descends to the children living, and to the descendants of the children dead, so that each child living shall receive such share as he would receive if all were living, and the children of those who are dead such share as the parents would receive if living. Thus, suppose an intestate had three sons, one of whom is dead, but has left children. In this case, each of the sons living would share one-third of the property, and the children of the deceased son the remaining third.

--12. But if the children are all dead, and there are grand-children living, the grand-children share equally, though not an equal number are children of each parent. If, for example, an intestate dies leaving no children, but having had two sons, one of whom had left three children, and the other two, the five share equally in the estate. The laws of Rhode Island, New Jersey, North Carolina, South Carolina, Tennessee, Louisiana, and Alabama, unless recently altered, are exceptions to this rule. In these states, and perhaps in a few others, though the children of the intestate are all dead, the grand-children do not share equally, but those of each stock, or family, take the portion which their parent would have taken if living.

--13. The order of descent is so different in the states, especially when there are no lineal descendants of an intestate, that it can be ascertained only by reference to the laws of each state. As a general rule, real estate pa.s.ses, (1.) to the lineal descendants; (2.) to the father; (3.) to the mother; (4.) to the collateral or _side_ relatives, as brothers, sisters, nephews, nieces, &c. But even to this general rule there are exceptions in the laws of some states.

--14. The rule of descent given in the preceding sections, it will be seen, relates to _real_, and not to personal estate. The rule in regard to real estate, and that relating to personal estate, are generally somewhat different in the same state.

Chapter LI.

Deeds and Mortgages.