Ward v. Estate of Ward

OPINION. Eakin, J. The effect of section 7, Article X, of the constitution of 1874, is to make all property thereafter acquired! by a woman who is, or may afterwards become, covert, her separate property, as effectually as if conveyed to her by deed to her separate use. It creates a statutory separate estate, with just the same powers, or nearly such, which married women had over trusts to their separate use in England, under the equity system there prevailing. There, a gift to the separate use of a married woman, gives her the same power of alienation over it as if she were a femme sole. (Bisp. Eq., sec. 101). It never was the intention of the constitution to ignore the strong ties of domestic affection and mutual confidence which spring from the relation, or to interfere with' any presumptions based upon them. The whole doctrine of advancements is founded on these and like presumptions, and they extend not only to the relation of husband and wife, but also to mother and daughter, grandparents and grand children; even, under some circumstances, to father-in-law and son-in-law. Indeed, to all the relations of life that imply the existence of strong affection, with an obligation of a moral nature to love and protect. They are based upon the laws of our being, and amount only to this simple., common-sense view; that persons in these relations who do favors, have- higher and tenderer motives than any expectation of pay. Bisp. Eq., sec. 84. This is only a claim for money advanced to buy a piece of land for the wife and improve it. It was a good thing for a husband to do, and may be supposed to have been done from a desire to protect her against want. The law will not raise any implied promise on her part to" repay it. It will be presumed to be a gift. ' r' . . .- -" - This view is wholly independent of the wife’s power to -contract with her husband, which need not be discussed. The demurrer was properly sustained. Affirm the judgment.