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LAW OF MASTER (OR MISTRESS) AND SERVANT.
THE relation of master and servant arises out of the necessity under which a
man labours to call in the assistance of others, where his own skill and
capacity are insufficient to answer the cares incumbent on him. In the following
remarks, what may be said of master and man will be equally applicable to
mistress and maid.
Domestic Servants.-These are also called menial servants, from the Saxon word "meni" or "maenig," or the Norman "meing," which means a train, retinue, or family. Some authorities, however, derive the word from "moenia," the walls. They may be of several kinds, as butler, footman, nurse, cook, housemaid, &c.; and the nature of their service, its limits and its obligations, may vary according to the terms agreed upon at the time of the hiring. But there are certain duties which are generally required of such servants, and in the absence of any express agreement it will be understood that it was for such general and customary service that the hiring took place. Whenever anything unusual or special is to be required of a servant, it should form the subject of an express stipulation previously to engagement. Otherwise, after the trouble taken to get character, and trouble caused to the servant by coming in, the master or mistress will be liable to be told, "I was not engaged to do this." So that if the coachman is intended to wait at table, in addition to his duties in the stable; the nurse to do part of the house-work; the cook to assist the housemaid in doing what is commonly understood to be "housemaid's work," the intention should be made clear at the time of hiring; and though it is not absolutely necessary, it will be found for every purpose most convenient if the conditions of the service, that is to say, the work to be done and the wages to be paid, be reduced into a memorandum and signed or "marked" by the servant. What is the regular duty commonly required of servants with whom no express contract has been made is matter of common fame to which any one can testify in the event of a dispute. This, however, often forms the subject of a quarrel.
Duration of the Service.-It is customary in this country to hire domestic servants by the year, in which case the wages are paid quarterly. Unless any express agreement be made on the subject, the law understands that either party may determine the service at will, upon giving a month's warning, or upon payment or forfeiture of a month's wages. With clerks, governesses, or others holding posts not menial, it is otherwise -a quarter's notice or a quarter's salary is the condition of leaving. There may be sometimes a weekly hiring - i.e., determinable at the end of a current week from commencement.
Summary Dismissal.- This power is reserved to a master or mistress, in order to prevent them from being saddled with what might be an intolerable nuisance. It must, however, be exercised, if at all, under such circumstances only as the law would approve, else servants would be liable to be cast forth suddenly upon the world at the caprice of their employers, who might do injustice in a moment of passion, or under the influence of mistaken judgment. When a domestic servant is guilty of immoral conduct, wilfully refuses to obey orders, gets intoxicated, stays out all night without being able to give a satisfactory reason for so doing, or habitually neglects to carry out his or her master's (or mistress's) lawful commands, such domestic servant may be summarily dismissed, without any more wages being paid than are actually due. Of course in cases of detected theft, summary dismissal is allowed; and dismissal is generally accompanied by delivery into the hands of the police. A master or mistress has the right, in the case of loss through theft, to cause the servants' rooms and boxes to be examined. The act of giving into custody on mere suspicion, however, is attended with the responsibilities which attach to the act when done towards anyone whatever. In the event of any mistake, or failure to show reasonable ground for suspicion, the employer will be liable to an action for false imprisonment, and possibly also for defamation of character.
Warning.- A clear month's warning is all that is required. So that this be given, it does not matter whether it be a month from the last pay-day, or, indeed, from any other particular date. It generally is a month from the date of the act committed, or omitted, which induced the employer to give warning. This is true also of warning given by the servant.
Duties of Employers to Servants.-It is the duty of an employer to pay his servant the wages agreed upon, and to house and to feed him in a suitable manner. What is a "suitable manner" must depend upon the class of servant, the nature of his service, and the means of the employer; but it may be understood to be required by law, that the lodging must be such as would be approved for size, cleanliness, ventilation, and power of shelter from the weather, by the health officer of the district As to diet, that is very much a matter of agreement; and it is well, in all cases, to settle it at the time of hiring, when the allowance of beer (if any), of tea, the number of meat meals per diem, and other matters, can be arranged. The law would simply require that sufficiency of good and wholesome food for a man or woman of the servant's age should be supplied. Custom has much control in the matter, however, the law seldom being invoked except in cases of brutality, malicious ill-feeding, or stinting on starvation allowance. A servant who is at all dissatisfied with his meat, has the remedy in his own hands by leaving it. A recent statute (1875) has imposed a penalty of £20 or under, or imprisonment not exceeding three months, on any master who, being legally liable to provide for his servant food, clothing, medical aid, or lodging, wilfully, and without lawful excuse, refuses or neglects to provide the same, whereby the health of his servant or apprentice is or is likely to be seriously or permanently injured.
An employer is not bound to provide a servant with medicine or medical attendance, but if he sends for a doctor he is liable, and cannot deduct the doctor's bill from his servant's wages, and in the event of the disablement of the servant by sickness or accident, he cannot discharge him or her without a month's warning or wages. [-14-] He cannot refuse admittance to a medical attendant called in by the servant at his own expense, during the time the servant is in the house. If he be annoyed by the visits of such medical man, or suspect him of misconduct, he can give his servant warning, and so get rid of the invalid and doctor together.
Giving "Characters." - The law does not oblige anyone to give a "character" to a servant. It is perfectly competent to a master or mistress to refuse one without assigning any reason for the refusal. If however, a character be given, the law prescribes the circumstances under which it shall be given. The conversation or letter in which the character is given is a privileged communication, and is exempt from the operation of the law of libel and slander, if the information be given in good faith, and without a malicious intent to injure the character of the servant. Proof of malice does away with the privilege, and lays the injurious character given open to an action for defamation. Short of covering malice, the law protects those who give characters honestly, that is to say, in accordance with what they know, and in accordance, also, with what they suspect; and even if what they say be untrue in fact, but yet honestly said, the law holds them excused. It may often happen that a mistress has good reason to suspect that her late servant was not in some particular what she should have been, though she may not have been able to bring an accusation home to her. Under such circumstances the character giver is warranted in disclosing to the character seeker what she really thinks.
A statute of George III. provides that if any person shall personate a master and give a false character to a servant, or assert in writing that a servant has been hired for a period of time or in a station, or was discharged at any time, or had not been hired in any previous service, contrary to truth; or if any one shall offer himself as a servant, pretending to have served where he has not served, or with a false certificate of character, or shall alter a certificate, or shall pretend not to have been in any previous service, contrary to truth, the offenders in such cases are liable, on conviction before two justices of the peace, to be fined twenty pounds, or in default, to be imprisoned, with hard labour, for from one to three months.
Liability of Master (or Mistress) for a Servant.- A master may justify an assault committed in defence of his servant, as a servant may justify an assault committed in defence of his master. If any one cause or procure a servant to quit his master's service, or hire him at the time he is in that service, so that he leave it before he be legally entitled to do so, the master can bring an action for damages against the new master and the servant.
Formerly a master was not liable to his servant for any injury happening in the course of his employment, nor even for exposing him to extraordinary risk; but by an Act passed in 1880 the employer is made liable if the injury arises through any orders to which the servant was bound to conform.
For all acts of a servant done by command of the master, that master is responsible, as he is also for certain acts not done by his command, but done under circumstances that seem to warrant the idea that the master has consented to be responsible. If a servant, in pursuance of direct orders, shoots a neighbour's dog, the master of the servant will be clearly responsible to the owner of the dog; and if a man has a coachman who drives badly and runs into a carriage, that man, by trusting such a driver with the reins, is assumed to have undertaken the responsibility of his acts. Some one must suffer loss; who so worthy as the man who caused it, by employing an unskilful servant? If a blacksmith's servant lame a horse in shoeing him, the blacksmith must make good the damage caused to the owner. It is at the same time no excuse to the servant who does an unlawful act, such as shooting the dog, that he did it by order of his; master. He is not bound to obey any unlawful command.
If a servant commit an injury without the authority of his master, the master is not liable. So that if the laundry-maid at Mrs. A's, having a quarrel with the laundry-maid at Mrs. B's, destroys Mrs. B's clothes-lines. or throws lighted lucifer matches among the clothes hanging out to dry, so that the clothes are burned, Mrs. A is not liable. If the cook at Mrs. A's come into Mrs. B's - house and says that her mistress is in need of change for a five-pound note, and that if Mrs. B will give the cook the change, she will herself presently bring the note, in I such a case, if the cook, unauthorised to say what she did, goes off with the money, her mistress is not liable to make good the loss to the deceived person..
If a servant procure articles on credit from a trades- man with whom her mistress has been in the habit of dealing for cash payments, it is the tradesman's loss if the servant prove a cheat. If, however, the mistress has had articles sometimes for cash, sometimes on credit, it is her loss; for the tradesman cannot know whether she has really ordered the goods or not. But by far the most preferable system is that now adopted by most respectable tradesmen-namely, to have every order entered in a book, the tradesman undertaking not to supply anything without a written order from the customer.
In the case of bankruptcy, servants are entitled to be paid in full all wages due at the date of the order of adjudication, for any time not exceeding four months, and for any sum not exceeding £50.
HOUSEHOLD LAW - II.
PARENT AND CHILD.
IT might, perhaps, be thought that if any law were required to regulate the
relations between parent and child, it would be found innate in the human
breast. But human nature has so many weaknesses, to say nothing of positive evil
impulses, that we cannot allow ourselves to trust to it alone, and experience
has shown that a public law is necessary, in order to define the relation in
which parents and children stand towards each other, and towards those who are
The law of Rome gave to a father the most absolute power over his children, at one period allowing him even the power of life and death; but always giving him ownership in all that his sons or daughters had, with power of disposing of it during his own lifetime. Only upon the father's death did the children become free, unless he had emancipated them previously, and in that case the children of the free were in their turn in legal bondage to their father. These principles never found favour in the West, and were not adopted even by those nations which engrafted the greater portion of the Roman law upon their own stocks. In this country the Roman law never had any footing, in spite of many strenuous efforts to import it; and the English law of parent and child is therefore not founded upon it, but upon those principles of general convenience and utility which suggested themselves as the demand for them came.
The Duties imposed upon Parents by the English law are the maintenance and protection of their children. It has been considered an unwarrantable thing that those through whose instrumentality children have been called into being, should be allowed to neglect those children, or to throw them as a burden upon others. This is a common-sense view of the matter, and one that would be approved even by persons devoid of that natural affection which is a law of itself to those who have it. It is required, then, of parents that they shall feed, clothe, and house their children; but it does not follow legally from this that they must do so in a manner according with the style in which they themselves are living. So long as they arrange in such a way that the children are not chargeable to the parish, they may bring them up in what station of life they please. It might, no doubt, be matter for comment, if an unnatural father should deny to his children a share in the comforts he is able to procure; but the law would only compel him to provide them with actual necessaries. "The policy of our laws," says Blackstone, "which are ever watchful to promote industry, did not mean to compel a father to maintain his idle and lazy children in ease and indolence; but thought it unjust to oblige the parent against his will to provide them with superfluities and other indulgences of fortune, imagining they might trust to the impulse of nature, if the children were deserving of such favours." Supposing, however, that the child be living away from home, and there is not any intimation given by the father of his own peculiarities, it will be understood that he intends his child to live in a manner consonant to that in which he himself lives; and tradesmen supplying goods to such child will be able to recover from the father not only the price of such goods as were actually necessary to sustain life, but also of such other goods as were not incompatible with the father's position in the world. What goods were necessary for the child's existence, it is not difficult to determine ; what other goods were, under the circumstances, allowable, is a question which is left to a jury to answer. Some of the decisions have been sufficiently remarkable, in one case was held that a gold latch-key was "necessary" to an officer in the Life Guards, evidence having been given to show that it was the custom for the officers of that regiment to use gold keys. But in the same case it was held by the jury, with the full approval of the court, that gold lockets, bracelets, and earrings, could not be "necessary" to an officer, and the items were struck out of the account. A diamond ring was allowed to stand in a jeweller's bill, for which an action was brought against a nobleman - the goods having been supplied to his son, an undergraduate at Oxford - on the ground that such an ornament was a common one among gentlemen in the young man's position, and might therefore be considered in the light of a "necessary," for which the father was chargeable. Instances might be multiplied indefinitely: but the rule is, that where a father allows his child to be in that position, from which it might reasonably be supposed he intended him to be treated as his son, he will be liable for supplies made to him, in accordance with the appearance he allowed him to keep up. It is at all times competent, however, to a father to limit his liability, by giving notice that he will not be liable for any debts his child may incur; and if he does this, by advertising for a reasonable time in such papers as are generally read, or by special notice to tradesmen and others in the places where his son may be, he will not be liable except for bare necessaries, and even for these it is a question whether he will be made to pay, if he causes it to be known that he is paying his son a sufficient necessary allowance. So firmly, however, does the law hold to its rule that a parent shall maintain his children, that it requires the father to repay to a parish, on the rates of which the son has become chargeable, the value of the supplies made to him. By virtue of his office of guardian to his child a father may bring an action against any person injuring the child, and he may recover damages not only for the child, but for himself also, because the child is supposed to have been a help to his father, and damages are awarded to compensate for the loss of service. The Roman law carried the principle of parental maintenance so far that it would not allow a man to disinherit his children, that is to say, it would not allow him to leave more than three-fourths of his property away from his children. If he did so, his will was set aside as insane, and a fourth of the property was taken for the children's benefit. At one time our law recognised the children's right to "a reasonable part" of the father's estate; but at the present day, the utmost freedom is given to testators in disposing of their property, and a man possessed of a million of money may, for all the law will interfere, leave the whole of his wealth away from his family.
Education. Up to a recent period parents were not under any legal obligation to educate their children, and were free to follow their own instincts on the subject; but by the "Elementary Education Act, 1870," a compulsory scheme of education is now enforceable where efficient instruction is not otherwise given, or where sickness or other unavoidable cause does not prevent attendance at the schools thereby instituted.
Power of Parents over Children- A father has a right to the custody of his children until they attain twenty-one years, and he may recover them, if detained from him, by the writ of habeas corpus. He is, however, sometimes deprived by his own misconduct of such custody; sometimes it is modified, so that the child is free at the age of fourteen ; but he must himself express his desire to leave the protection of his parents, and must do so in open court, or he will be given up to his father. Under the age of fourteen the child is absolutely within the power of his father, and any person enticing, stealing, or detaining a child under ten years of age, with intent to deprive its father or proper guardian of the charge of it, incurs the penalty of felony. A father has legal right to correct or chastise his child, so the punishment be not [-36-] immoderate; his consent must be obtained to a marriage, if the child be a minor; and his dissent, on publication of banns, will be sufficient to stop the marriage. A licence for a minor to be married will not as a rule be granted, and should not be granted, except on oath that the father's consent has been obtained. Where a minor has property, independently of his parents, his father is the guardian and administrator of it during the minority; but he will be liable to be called upon for an account of his guardianship on the infant attaining his majority. A father has power by his will to appoint guardians for his children under age, and such guardians are invested, by the law, with the same rights and powers and responsibilities as the father.
Mother and Child.- A mother has not any power over her children during her husband's lifetime, except in one case which is created by statute. If the children are under sixteen years of age, the Lord Chancellor may order, on the mother's petition, that they be given over to her - the mother being considered a better and more natural guardian for children of tender years. On the death of her husband, she steps into his place as guardian, having a right to the custody of her children till they are of age. She cannot, however, appoint a guardian by her will, as she is not mentioned in the statute which gave the father that privilege.
Duties of Children to Parents.- These are not defined by the municipal law, being supposed to be contained in the law of nature; but the poor law which compels parents, who are able to do so, to pay for the maintenance of their children, of whatever age, who may become chargeable to the parish, also makes it incumbent on children having ability to pay to provide for their poor and impotent parents, at such a rate as the justices in quarter sessions may order.
Rights, Liabilities of Infants.- As to the liability of minors on contracts entered into with them, such contracts were, until recently, capable of confirmation on their attaining full age; but contracts with minors are now absolutely void, and this even in cases where a new consideration has been given after full age has been attained.
Infancy being a personal privilege, no one can take advantage of it but the infant himself; and therefore, though his contract be voidable, as far as he himself is concerned, yet it binds the person of full age.
It is almost superfluous to remark that an infant cannot become bankrupt. He may be made joint executor with another of any age; but if appointed sole executor, administration must be granted to his guardians during minority. A gift by an infant is voidable.
THE LAW OF WILL-MAKING.
What is a Will? - A will or testament is the
legal expression of a man's wishes in respect of matters that he desires to have
attended to after his death. If the dispositions to be made by a will are very
complicated or numerous, the wisest plan is to have the will drawn by a lawyer,
whose charges it is far better to incur than to run the chance of the will being
disputed or set aside after the testator's death. But in cases of simple
bequest, whether of land or movable goods, and even in difficult cases if the
testator is quite sure he can express his meaning simply and clearly, there is
not any need for the intervention of a lawyer. Sudden necessity, remoteness from
professional help, desire to keep within one's breast the particulars as to
property and to bequests - these and other causes might render it desirable that
one should know how to make a will for oneself.
How to Make a Will - There is not any prescribed form in which a will must necessarily be made, and when an unprofessional person is going to make a will he must carefully get rid of the idea that any form is possible. Let him write his wishes down as simply and easily as if he were writing a note, a voiding the use of all technical expressions, and aiming only at making himself intelligible. Many persons have frustrated their own intentions by introducing into wills made by themselves technical terms of the exact meaning of which they were ignorant, and which had to be construed according to the technical signification. Formerly it was of the highest importance that wills should be so worded that no other meaning than that intended should by any possibility be placed upon them. Then it was almost indispensable that the services of a lawyer should be retained. Now, however, a will is construed according to the evident intention of the testator, however badly he may have expressed himself, so that the simpler the wording of the document the better. The whole law of wills was remodelled on this principle in the first year of the reign of her present Majesty. The only conditions imposed upon testators are conditions which are meant solely to guard them against the mischief of fraud, and to prevent their being subjected to undue influence in the making of wills. They are:-
1. The testator must be of sound mind, and not less than twenty-one years of age.
2. His will must be written, the only exceptions to this rule being soldiers and sailors, who may, in consideration of the service in which they are engaged, make verbal assignments of their property.
3. The will must be properly executed.
Who may Make a Will - Any man or unmarried woman of sound mind, and of the age of twenty-one years and upwards, may make a will. Ordinarily, married women cannot make wills, because they have not anything to bequeath, their property, by a rule of law, becoming the property of the husband on marriage. But a married woman may, if of full age, make a will bequeathing property settled upon her for her separate use and benefit or over which she has a general power of appointment, or of goods vested in her as executrix. She may also make a will if her husband is banished for life, or has obtained a protecting order, or had a judicial separation under the Divorce Act. By the Married Woman's Property Act, 1870, the earnings of a married woman, her deposits in savings banks, stock, shares, and interests in friendly societies, &c., are her separate property, and consequently can be left by her by will.
Execution of a Will - The testator's signature must be placed at the foot or end of the will ; and should the will be contained in more than one sheet, each of such sheets should be signed by the testator, and the signature attested by the witnesses. The signature will not give effect to any bequests underneath or following it or inserted after the signature is made. Any one capable of understanding what he is about, and able to write his name, may witness the signature of a testator; but it must be remembered that a witness cannot receive any benefit under the will. Should a bequest have been made to him it is taken away by the mere fact of his being a witness, and the portion he would have taken goes to the residuary legatee. If, therefore, it be intended to give anything, let it not be to him who is to witness the signature An executor or trustee may be a witness, subject to the above rule about bequests. There must be two witnesses They must both, and at the same time, see the testator sign the will; and they must sign a memorandum to that effect in the presence of the testator and of each other. There is not any precise clause of attestation, but the following form contains all the essential conditions:- "Signed by the testator, John Hopkins, as and for his last will, in the presence of us present at the same time, who in his presence at his request and in the presence of each other have hereunto subscribed our names as witnesses." Should any alteration have been made in the will prior to its execution, upon which any doubt might subsequently arise as to whether it had been made before or after execution, the fact of such alteration should be set out in the attestation clause thus :-" Signed by the testator, John Hopkins, as and for his last will and testament, the alteration in line 9, page 3, having been previously made in the presence of us, &c."
Unwritten Wills.- The only persons who are allowed to make wills orally are soldiers actually engaged on some expedition, or sailors actually at sea. To them it is permitted to make wills orally in consideration of their being, by the nature of their calling, constantly in the face of death, which may surprise them at any moment. So far as sailors, however, are concerned, there is a rule of the Admiralty that any will disposing of pay, prize-money, or anything else which would have to pass through the Admiralty Office, shall be reduced to writing, either by the testator, or some one writing at his request.
[-91-] What may be Bequeathed by Will- Anything and everything that a man possesses or is entitled to may be bequeathed by will. Formerly this was not so. It was a rule of law, founded on the Roman code, that a man could not leave the whole of his property away from his family. The Roman law obliged him to leave a fourth, at least, to those who were naturally dependent upon him, and the English law gave to the children of a testator their "reasonable part," which was calculated with reference to the man's position in the world. Now, however, a man may do just what he likes with land or money, but he may not bequeath land, or money to be spent in buying land, to any religious or charitable institution. If he do, the dead hand (or rnortmain) shall recover the bequest for his family. A gift of land to a charity must be by deed executed in the presence of two witnesses twelve calendar months before the death of the donor, and enrolled in the Court of Chancery six months after its execution. Money, however, may be left to a charity or a religious institution so long as it is not directed to be spent in the purchase of land. Gifts of money may also now be made by will for the purpose of parks, schools, or museums, but the will must be executed twelve calendar months before the donor's death, and enrolled within six months after death.
Codicils, or "little writings," are the expressions of a man's wishes conceived after his will is complete. By their means he can revoke the whole or part of his will, make fresh dispositions, or re-arrange the dispositions already made. They are made in exactly the same way, and under the same conditions, as wills, but instead of being described as "the last will and testament," they are called "codicil" or "codicils " to "the last will and testament."
Revocation and Nullification of a Will.-A will is considered to be revoked by another subsequently dated, and is of course so by any codicil, memorandum, or writing made as and for a fresh will, in which the former will is expressly declared to be revoked. The only act by which, ipso facto, a will is nullified, except as above, is by the marriage of the testator. Formerly a number of events, as the birth of a child, an alteration in the condition of a man's estate, nullified a will; marriage is now the only revoker.
Probate of a Will - When the will-maker is dead his executors, if they mean to act, should prove the will; to do this, they must make an inventory of all the property of the deceased, and have it valued. Knowing the total amount of the property, they will have to swear what is termed an oath for probate, a statement verifying the will; this may be done either before the registrar of the Probate Court (local registries exist all over the kingdom), or before any commissioner authorised to administer oaths. This oath, together with the will, is then carried into the Probate Court. If the will be not disputed this is sufficient proof, the will is given up to the Court of Probate, and an official copy is made of it, which is delivered to the executors, and is called the probate copy. This is the warrant for the executors to act in the administration of the estate. Probate duty, which varies according to the amount of the property, is charged and paid before the delivery of the probate copy. If the will be disputed it must be proved in solemn form; the witnesses to the will, and any other witnesses whom it may be thought necessary to summon, are examined and cross-examined in the Court of Probate, and the will is admitted to proof or not, according to what may appear. A will once proved in solemn form cannot be disputed afterwards; the executors to a will proved only in common form are liable to be called upon afterwards to prove it in solemn form. All solicitors of the Supreme Court of Judicature can act in the obtaining of probates, just as formerly proctors alone could.
Executors and Trustees.- The persons appointed by a testator to be his executors, or to be trustees in any trust provided for in his will, may, if they choose, renounce the office, either at the time of their appointment becoming known, or afterwards. In such cases the Court of Probate will grant administration to a legatee or creditor. If the executors accept office, they are to all purposes the representatives of the deceased testator. They may even before receiving probate do all necessary offices for the deceased; thus they may incur charges for burying him, and for supplying the immediate wants of his family ; they may seal up his papers and take possession of all his goods, for the purpose of protecting them. Having received probate, they may do all things that their testator might himself have done; they may bring actions to recover debts due to him, and they are the proper defendants in actions for debts, &c., due from him. It is their duty, within a reasonable time, to get in the whole of his estate, and to pay, 1st, the reasonable funeral expenses, and the cost of proving the will; 2nd, debts due to the Crown for taxes, &c.; 3rd, debts due on judgments obtained at law, or on decrees made by the Court of Chancery, and debts due on recognisances ; 4th, debts on bonds, covenants, and the like, not under seal, and debts for rent of any kind ; 5th, simple contract debts, that is to say, debts on contracts written but not sealed, and debts incurred without any writing to prove them, as tradesmen's bills, or wages ; 6th, the legacies ; 7th, the residuary legatee. An executor is bound to pay away the estate in the order mentioned. If there should not be enough to pay all, he must pay the higher classes of claimants as far as the money will go, leaving the rest ; and he is personally responsible to a higher class creditor if he has paid, through neglect or inadvertence, a creditor of the lower class, and have not money left to pay the higher claim. If he have complied with these conditions in administering the estate, he is protected against all the world on proving his plea of plene administravit. It is competent for an executor to renounce after he has begun to administer. In that case he must account for what he has done so far to the Chancery Court, which will then take over the charge for him.
Intestacy - Administration.- A man dying without a will is said to be intestate. In such case, and in the case of a will being set aside as having been made when the testator was insane, or under undue influence, the Court of Probate will grant power to the widow, or the next of kin, to administer the estate, according to certain known rules of law. The court must be satisfied as to who is next of kin, and also as to the amount of the intestate's property, then it will on application grant letters of administration. Landed property will go to the heir-at-law, and personal property will be divided according to directions laid down in an Act of Parliament called the Statute of Distributions. Where a widow and children are left, one-third of the personal property goes to the widow, and two-thirds go to the children where there is a widow and no children, half goes to the former, and half to the next of kin; where neither widow nor children, the whole goes to the heirs of the intestate's father, who divide it equally, females as well as males. In dividing personal property the law makes no distinction of sex, but gives to all equal shares. Where a man dies intestate, and no claimant at all appears, the Crown, as the ideal owner of everything in the kingdom, or belonging to any subject of the same, puts in its claim, and takes the whole of the property. Where a person dies under circumstances that cause his property to be forfeited, as when he dies by the hand of the law, for treason or murder, any will he may have made is void, and the Crown takes his goods. On petition, however, the family of such a man are allowed the property.
HUSBAND AND WIFE.
OF private relations subsisting between human beings, the first in importance
is that of master and servant; the second, that of marriage, which, in the words
of a great lawyer, includes the reciprocal rights and duties of husband and
wife. What these rights and duties are, it will be in this paper our task to
discuss. In the first place, however, it will be necessary to state how and by
whom marriage may be contracted.
The English law looks upon marriage in no other light than as a civil contract; and the law applies to it generally the ordinary principles which attach to other contracts, allowing it to be good and valid in all cases in which the parties, at the time of making it, were, in the first place, willing to contract ; secondly, able to contract; and lastly, did contract in the proper forms required by law.
The first proviso we need not discuss.
As to the second, all persons are able to contract marriage, unless they labour under some particular disabilities and incapacities.
The first of these disabilities is a prior marriage, of which marriage the husband or wife is still alive. The second is want of age. The latter proviso holds good in all other contracts on account of the imbecility of judgment in the parties contracting. The age fixed by law for consent to matrimony, is fourteen in males and twelve in females, and supposing a marriage contracted by persons under these ages respectively, either of them upon coming to the age of consent aforesaid, may disagree and declare the marriage void, but if at the age of consent they continue to agree together, they need not be married again.
What is above stated must be understood as applying solely to the actual marriage contract ; but a promise to marry - which, like other contracts, will give a right of action for damages in case of its breach - is not binding unless the party who makes it be of full age, viz., twenty-one. And when two persons, one of full age and the other under, enter into a contract of this kind, the former is liable to an action for damages if it be broken whilst against the minor under similar circumstances no action will lie.
Another incapacity arises from want of reason, without which the matrimonial contract is not valid; this wilt not, however, be cause for divorce if the insanity arises after marriage ; so that, as the law stands, the marriage of [-131-] a lunatic, unless in a lucid interval, is absolutely void. As, however, it was found difficult to prove the exact state of the party's mind at the actual celebration of the nuptials, a statute was passed by which the marriages of all lunatics or persons under frenzies - if found so by a commission appointed for that purpose, or committed to the care of trustees, by an Act of Parliament - were declared void.
A fourth incapacity is in respect of proximity of relationship ; that is, the fact of the parties being within the prohibited degrees of consanguinity. These degrees, however, are too well known to require more than the mere mention of them. Any two persons, therefore, not labouring under any of these disabilities, may contract themselves in marriage, provided that they do so in conformity with the law. We will now inquire what the law on this head is.
The different modes by which the marriage contract may be entered into, are by banns, by special licence, by the ordinary's or surrogate's licence, by the superintendent registrar's certificate with licence, or by his certificate without licence. These we will explain in turn.
An Act passed in the reign of George IV.,* (4 Geo IV., c.76) prescribes previous to a marriage, the publication of the banns upon three successive Sundays in the church or chapel where the ceremony is to be solemnised, or instead of this, a licence from the ecclesiastical authority to marry without banns - that is, either a "special" licence from the Archbishop of Canterbury, or a "common licence" from the ordinary of the place or his surrogate ; at the same time it ordains that no licence shall be granted to marry in any church or chapel, unless one of the parties has had his or her usual place of abode in the parish to which the church or chapel belongs for fifteen days immediately preceding ; that all ministers are forbidden to solemnise marriages more than three months after the complete publication of the banns, or grant of licence; that the marriage, whether by banns or licence, shall be in a church or public chapel where banns may be lawfully published, and shall take place between eight and twelve in the forenoon (except in the case of a special licence), and shall be solemnised by a person in holy orders, and before not less than two credible witnesses. Moreover, as it is deemed expedient that no facilities shall be given to persons under the age of twenty-one to intermarry without the consent of parents or guardians, the Act also orders that, in the case of the publication of banns of a person under the age of twenty-one not being a widow or widower, if the parent or guardian openly express his dissent at the time they are published, the publication shall be void. It also enacts that no licence to marry without banns shall be granted, unless oath shall be first made by one of the parties, that he or she believes there is no impediment of kindred or alliance, or of any other lawful cause; and, moreover, that one of the parties to the contract has, for the space of fifteen days immediately preceding, had his or her usual place of abode within the parish in which the marriage is to take place; and that when one of the parties is under twenty-one, that the consent of the person whose consent is required has been obtained, or that there is no person living who has authority to give such consent. The consent required by the Act must be given by the father, or if he be dead, by the appointed guardian. If there be no guardian, then by the mother if she is unmarried, and if there be no mother unmarried, then by any guardian appointed by the Court of Chancery.
Although these formalities are prescribed by the law, and in case of their neglect penal consequences may ensue, the marriage is not necessarily void which is not concluded precisely according to the provisions above related. In the following cases, however, the marriage will be void:- If any person shall intermarry without due publication of banns in any other place than a church or chapel where banns may be lawfully published, unless by special licence ; or shall intermarry without due publication of banns, or without a licence from a person who has authority to publish or grant such banns or licence; or shall consent or acquiesce in the solemnisation of marriage by any person who is not in holy orders. The statute, however, applies only to those who commit such errors wilfully, and with full knowledge that what they do is against the law.
By Special Licence, it must be understood, a marriage may take place at any hour and at any place.
We have now to consider how a marriage may be contracted by means of the Superintendent Registrar's Certificate without Licence.
Notice must be given by the person intending to be married by this means to the superintending registrar of the district within which both the persons about to marry have dwelt for not less than seven days; or if they have lived in different districts for that time, then to the superintendent registrar of each district. This notice wil1 be entered in a book called the "Marriage Notice Book" (which may be seen by any one), particularising the church or other building in which the marriage is to be solemnised. The person giving the notice must add that he or she believes that there is no lawful impediment; that both parties have lived in the district for seven days previously; and that consent to the marriage from the person (if any) required by law has been obtained. This notice is placed in the registrar's office for twenty-one days after it has been entered in the notice-book, during which time any one who has authority, may forbid the issue of a certificate that the marriage has been duly entered, by writing the word "forbidden" opposite the entry in the notice-book. If, however, no such impediment has been made after the expiration of twenty-one days, the registrar may issue his certificate, which expresses that notice of the intending marriage in such a church or building has been duly entered, and that it has not been forbidden by any authorised person; for which certificate the registrar receives the fee of one shilling. Then the marriage may take place at any time within three months from the entry of the notice, in the church or registered building specified. The parties to the contract may, however, if they choose, be married at the office of the superintendent registrar, when the ceremony must take place in his presence and in that of some registrar of the district, and before two other witnesses, with open doors, and between eight and twelve in the forenoon, in which ceremony no religious service may be read.
A person desirous of being married by the superintendent registrar's certificate with licence, is to give notice and obtain a certificate as in the former case, with these distinctions:-
If both persons do not dwell in the same district, notice need not be given to the superintendent registrar of each district,, but only to the superintendent registrar of the district in which one of them resides. The notice must state that the person making it has lived for fifteen, not seven, days in the district in which the notice is given.
The notice is not hung up in the office, and the certificate may be granted at the expiration of one day, instead of twenty-one days, after the entry of the notice.
Such are the various methods by which marriage may be contracted. We will now discuss the rights of husband and wife with respect to property.
Unless the property which a wife may possess at the time of her marriage be settled on her, the husband becomes the absolute owner of her personal property; i.e., her property other than freehold estates, and this personal property he may dispose of as he wills, amid after his death his wife will have no claim to it. The wife may, however, claim as her own, her necessary clothing, and all gifts of [-132-] jewels and trinkets presented to her by relations and friends upon or after her marriage, and these she may dispose of as if she were unmarried, and they cannot be touched by her husband or his creditors, unless her husband survives her, and they are otherwise undisposed of. She may also claim her paraphernalia - that is, her wearing apparel and jewels suitable to her station in life but gifts of jewellery from her husband made before or after marriage she cannot claim until his death. During his life he may sell, pawn, or otherwise dispose of such articles, and although he cannot leave them to any one by will, they are liable to his debts both before and after his death.
The husband is absolute owner during his wife's life of her leasehold property, although he cannot dispose of it by will ; so if he dies before her it will revert to her, whilst if he survives her it will become his absolutely.
If the wife is possessed of freehold property at the time of her marriage which has not been settled distinctly upon her, the husband has what is called a freehold interest in it during their joint lives ; that is, he is sole tenant, and can lease, mortgage, or otherwise dispose of it to the extent of his interest in it. In such cases if he survive his wife, and has had issue by her capable of inheriting the property, he is tenant for the rest of his life in all her freehold estates. Such cases, however, occur rarely, as it is usual for a settlement to be drawn up on behalf of the lady before her marriage.
Now all settlements must be in writing, as well as all agreements for a settlement. Settlements may be made before marriage or after marriage. A settlement made before marriage in consideration of (i.e. with a view to) marriage, holds good against every claim; it cannot be impeached (unless it can be proved to have been drawn up in a fraudulent manner), even by creditors of the husband or wife. The same law applies to a settlement made after marriage, if drawn up in pursuance of an agreement for a settlement entered into before marriage.
A settlement made after marriage, unless in pursuance of an agreement beforehand, cannot bar the claims of existing creditors, nor those of subsequent ones, if it is made with the intention of defeating their future claims if, however, it be made without fraudulent intention by a husband not indebted at the time, the settlement will bar the claims of subsequent creditors, unless the husband becomes bankrupt within the space of two years afterwards. Such a settlement is also binding on the settler when once completed, and he cannot undo it.
If a husband dies without having previously made a will, and in absence of a settlement, the wife is entitled to .a life interest in the freehold lands and houses which he possessed; if he dies without a will and without issue, she is entitled to one half of his personal property; that is, property in money, goods, &c.; if, however, he dies without a will, but leaves issue, she is entitled only to a third part.
Such is a brief synopsis of the law as regards property; the next step to be discussed is, how far a husband is liable for debts contracted by his wife.
Formerly a husband upon his marriage took upon himself all his wife's debts and liabilities, but an important statute, known as the Married Women's Property Act, passed in the year 1870, expressly absolves the husband from these - the wife remaining liable to be sued for them, and any separate estate of hers being applicable to their liquidation.
So long as the married couple live together, the wife is presumed to have her husband's authority to make contracts for the supply of articles, &c., suitable to her and his station in life. If however, he is in the habit of supplying such articles, &c., to his wife, and this fact is known to their tradespeople, either by notice from him otherwise, the husband is not bound to pay debts contracted for such articles.
A married woman is now liable to maintain her children out of her separate property, just as a widow would be; but the husband is thereby not relieved from his pecuniary liability.
If a wife leaves her home with her husband's consent, or by reason of his ill-usage, and without misconduct on her part, and he makes her no allowance, he is liable for necessaries supplied to her even by those tradesmen whom he has warned against her. When a husband and wife are living apart, it is the business of the tradespeople to inquire into the circumstances of the case before trusting the wife, as a husband is by no means bound to give notice to them of the separation. A husband may give authority to his wife to act as his agent, as he may to any other person, and in this capacity she may collect rents, pay money, sign cheques, draw bills, &c., for which he will be answerable until he revokes the authority.
By the before-mentioned statute the earnings of a married woman are to be deemed her own property, personal property coming to her, not exceeding £200 in value, and deposits in savings banks, &c., also the rents of freehold property descending to her are deemed to be her separate estate, and a married woman is empowered in her own name to bring an action therefor, or for wages due to her.
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