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diff --git a/old/12049-h/12049-h.htm b/old/12049-h/12049-h.htm new file mode 100644 index 0000000..db46203 --- /dev/null +++ b/old/12049-h/12049-h.htm @@ -0,0 +1,4140 @@ +<!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"> + +<html> +<head> + <meta name="generator" content= + "HTML Tidy for Windows (vers 1st February 2004), see www.w3.org"> + <meta http-equiv="Content-Type" content= + "text/html; charset=us-ascii"> + + <title>The Project Gutenberg eBook of Legal Status Of Women In + Iowa, by Jennie L. Wilson, LL. B.</title> + <style type="text/css"> + /*<![CDATA[ XML blockout */ + <!-- + P { margin-top: .75em; + text-align: justify; + margin-bottom: .75em; + } + H1,H2,H3,H4,H5,H6 { + text-align: center; /* all headings centered */ + } + HR { width: 33%; + margin-top: 1em; + margin-bottom: 1em; + } + BODY{margin-left: 19%; + margin-right: 10%; + } + .linenum {position: absolute; top: auto; left: 4%;} /* poetry number */ + .note {margin-left: 2em; margin-right: 2em; margin-bottom: 1em;} /* footnote */ + .blkquot {margin-left: 4em; margin-right: 4em;} /* block indent */ + .pagenum {position: absolute; left: 92%; font-size: smaller;} /* page numbers */ + .sidenote {position: absolute; left: 1%; right: 80%; font-size: 9pt; text-indent: 0em; text-align: left;} + + .poem {margin-left:10%; margin-right:10%; text-align: left;} + .poem .stanza {margin: 1em 0em 1em 0em;} + .poem p {margin: 0; padding-left: 3em; text-indent: -3em;} + .poem p.i2 {margin-left: 2em;} + .poem p.i4 {margin-left: 4em;} + .poem .caesura {vertical-align: -200%;} + // --> + /* XML end ]]>*/ + </style> +</head> + +<body> + + +<pre> + +Project Gutenberg's Legal Status Of Women In Iowa, by Jennie Lansley Wilson + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: Legal Status Of Women In Iowa + +Author: Jennie Lansley Wilson + +Release Date: April 15, 2004 [EBook #12049] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK LEGAL STATUS OF WOMEN IN IOWA *** + + + + +Produced by Garrett Alley, and the Online Distributed Proofreading Team. + + + + + +</pre> + + <h1>LEGAL STATUS OF WOMEN IN IOWA.</h1> + + <h3>COMPILED BY</h3> + + <h2>JENNIE L. WILSON, LL. B.</h2> + + <p style="text-align: center;">Member of the Polk County Bar.</p> + + <p style="text-align: center;">DES MOINES: IOWA PRINTING COMPANY. + 1894.</p><br> + <hr style="width: 65%;"> + + <h2>Preface.</h2><br> + + <p>This book has been prepared for the purpose of presenting to + the women of Iowa, in a brief and concise form, those laws which + pertain to subjects in which they are most deeply interested, and + about which there is a strong and growing demand for certain and + accurate information.</p> + + <p>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."</p> + + <p>Every woman should understand the law of her own state + concerning marriage, divorce, the care and custody of children, + and the mutual rights and duties of husband and wife incident to + the marriage relation. She should know something of the law of + minors and guardianship, of administration, and descent of + property, and her knowledge should certainly embrace that class + of crimes which necessarily includes her own sex, either as the + injured party, or as <i>particeps criminis</i>.</p> + + <p>In the arrangement of this work, a very brief synopsis of the + common law upon these subjects is given, as the principles of the + common law underlie our entire statute law, and a knowledge of + the former is absolutely essential to render much of the latter + intelligible. The statute law of the state has been given in the + exact words of the statutes, with but few exceptions, and the + explanations or notes following these have been gathered from + decisions of our supreme court. The references are to sections of + McClain's Annotated Code and Supplement.</p> + + <p>The design of the work is not broad enough to give to the most + careful reader that knowledge of the <i>minutiae</i> of the law + necessary in the application of its principles to particular + cases and under a special state of facts. It is in nowise + adequate, even though its contents should be thoroughly mastered, + to make every woman her own lawyer, in matters where she would + otherwise require legal advice, but it is hoped that its + statements are sufficiently plain and free from technical + phraseology and legal terms, that even the casual reader may + readily comprehend them, and be able to gain a general + understanding of the law of our state upon these subjects.</p> + + <p>J.L.W.</p> + + <p>Des Moines, Iowa, May 1894.</p> + <hr style="width: 65%;"> + <a name="TABLE_OF_CONTENTS"></a> + + <h2>TABLE OF CONTENTS.</h2><br> + + <p><a href="#Common_Law"><b>CHAPTER I.</b></a></p> + + <p>SYNOPSIS OF COMMON LAW. Common law in + force—Changes—Marriage—Dissolution of + marriage—Power of husband—Disabilities of + wife—Custody of children—Property + rights—Descent of property—Discrimination in criminal + matters—Right of appeal—Reason for subjection of + women</p><br> + + <p><a href="#Law_of_Iowa"><b>CHAPTER II.</b></a></p> + + <p>MARRIAGE. Contract of marriage—Legal age—No + express form necessary—Who may solemnize—When + void</p><br> + + <p><a href="#CHAPTER_III"><b>CHAPTER III.</b></a></p> + + <p>HUSBAND AND WIFE. Property rights of married + women—Remedy by husband or wife against the + other—Wife's torts—Conveyances to each + other—Conveyances to third parties—Wages of + wife—Contracts of wife—Family expenses—Removal + from homestead—Conveyance of property when husband or wife + is insane</p><br> + + <p><a href="#CHAPTER_IV"><b>CHAPTER IV.</b></a></p> + + <p>DIVORCE, ANNULLING MARRIAGES AND ALIMONY. Jurisdiction of + court—Evidence—Causes for divorce—Husband from + wife—Maintenance during + litigation—Alimony—Custody of + children—Annulling illegal + marriages—Causes—Legitimacy of children</p><br> + + <p><a href="#CHAPTER_V"><b>CHAPTER V.</b></a></p> + + <p>MINORS AND GUARDIANSHIP. Majority—Contracts of + minors—Natural guardians—Guardians of + property—Powers and duties of guardian—Guardians of + drunkards, spendthrifts and lunatics</p><br> + + <p><a href="#CHAPTER_VI"><b>CHAPTER VI.</b></a></p> + + <p>APPRENTICING AND ADOPTION OF CHILDREN. Method of + apprenticing—Schooling and treatment of minors—Who + may adopt—Method and effect of adoption—Home for the + friendless—Powers</p><br> + + <p><a href="#CHAPTER_VII"><b>CHAPTER VII.</b></a></p> + + <p>WILLS AND LETTERS OF ADMINISTRATION. Who may make + wills—Of what property—Verbal wills—Wills in + writing—Revocation—Cancellation—Executors—Administration—Who + entitled—Time allowed</p><br> + + <p><a href="#CHAPTER_VIII"><b>CHAPTER VIII.</b></a></p> + + <p>SETTLEMENT OF THE ESTATE—DESCENT AND DISTRIBUTION OF + PROPERTY. Exempt personal property—Life + insurance—Allowance to widow and children—Descent and + distribution—Personal property—Real + property—Dower—Curtesy—Widow's share not + affected by will—Descent to children—To + parents—To wife and her heirs—Illegitimate children + inherit from mother—When they may inherit from + father—When father may inherit from child</p><br> + + <p><a href="#CHAPTER_IX"><b>CHAPTER IX.</b></a></p> + + <p>HOMESTEAD AND EXEMPTIONS. Homestead exempt—Family + defined—Conveyance or encumbrance—Liability for taxes + and debts—What constitutes homestead—Exemptions to + head of family—Insurance—Personal + earnings—Pension money—Damages producing + death</p><br> + + <p><a href="#CHAPTER_X"><b>CHAPTER X.</b></a></p> + + <p>CRIMINAL LAW—ILLEGITIMATE CHILDREN. Rape—Intent to + commit—Compelling to marry—Carnal + knowledge—Producing miscarriage—Enticing female + child—Seduction—Marriage a bar to + prosecution—Adultery—Evidence in cases of rape or + seduction—Bigamy—Lewdness—Houses of ill + fame—Penalty for + prostitution—Incest—Illegitimate + children—Support of—Rendered legitimate by marriage + of parents</p><br> + + <p><a href="#CHAPTER_XI"><b>CHAPTER XI.</b></a></p> + + <p>MISCELLANEOUS PROVISIONS. Damages under prohibitory liquor + law—Parties in actions for seduction—In actions for + injury to minor child—Married women—When husband or + wife deserts family—Husband or wife as + witness—Communications between husband and wife—Women + eligible to office—Police matrons—Right of + suffrage</p><br> + + <p><a href="#CHAPTER_XII"><b>CHAPTER XII.</b></a></p> + + <p>CONCLUSION. Common law in Iowa—Law will not always + protect married women—It may cause hardship and + suffering—Change or modification needed</p> + <hr style="width: 65%;"> + <a name="Common_Law"></a> + + <h2>Common Law</h2><br> + + <h2>CHAPTER I.</h2> + + <center> + SYNOPSIS OF COMMON LAW. + </center> + + <div class="sidenote"> + Common law in force. + </div> + + <p>Until a comparatively recent period the laws of England in + force at the time of the independence of the American colonies, + relating to married women, the mutual duties of husband and wife, + their property rights and the care and custody of children, were + everywhere in force in this country except in those states which + were originally settled by other nations than the English.</p> + + <div class="sidenote"> + Changes. + </div> + + <p>The agitation of the last fifty years, caused by the demand + for equality in educational opportunities and in professional, + business and trade relations, as well as for the legal and + political recognition of women, has brought about great changes + in these laws, until they are in many instances almost entirely + superseded by statutory enactments more in accordance with the + spirit of justice and in greater harmony with the requirements of + a higher form of civilization. In many states they have reached a + condition in which the legal status of husband and wife is + nearly, if not wholly, one of equality.</p> + + <div class="sidenote"> + Basis of statue law. + </div> + + <p>It must always be borne in mind, however, that the common law + is the foundation upon which almost the entire structure of our + American system of jurisprudence is based, although it is claimed + that it has only been recognized by our courts so far as it has + been "applicable to the habits and conditions of our society and + in harmony with the genius, spirit and objects of our + institutions." As it became apparent from time to time that it + was not thus applicable, or where it failed to meet the + requirements of the changed conditions of society the strictness + of its rules was relaxed by giving to them a broader + construction, or, when this could not be done, they were modified + or entirely changed by statute.</p> + + <div class="sidenote"> + Marriage + </div> + + <p>Marriage was regarded by the common law as a civil contract + and might be entered into legally by a boy of fourteen or a girl + of twelve years of age, provided they were under no legal + disability to contract marriage. This was called the age of + consent, or discretion, and a marriage contracted prior to this + time was inchoate only, and might be repudiated by either party + upon arriving at the legal age. If one of the parties was above + and the other under the required age, the marriage might still be + disaffirmed by either. If after reaching the age of consent the + parties continued to live together as husband and wife, this + would be regarded as an affirmance of the marriage.</p> + + <div class="sidenote"> + What constitutes. + </div> + + <p>The mutual consent of the parties themselves, followed by + cohabitation, was sufficient to constitute a legal marriage, + without the observance of any formalities. The formal ceremonies + provided by statute for the celebration of marriages, and the + penalties imposed upon clergymen and others who married those who + had not complied with these formalities, were solely for the + purpose of providing a convenient and certain proof of marriage, + should it be afterwards necessary to establish that fact by + evidence, rather than to invalidate marriages which would + otherwise be legal.</p> + + <div class="sidenote"> + Dissolution of marriage. + </div> + + <p>Having established the marriage relation, it could only be + dissolved by death or divorce granted by act of parliament, or, + in this country after the declaration of independence, by act of + legislature. No absolute divorce could be granted for any cause + arising after the marriage, but a separation might be decreed in + case of adultery by either party.</p> + + <div class="sidenote"> + Subjection of married women. + </div> + + <p>By the rules of the common law, the person and property of + women were under the absolute control of their husbands. The + maxim, <i>Uxor non est juris, sed sub potestate viri</i>, "a wife + is not her own mistress, but is under the power of her husband," + is but an expression of the actual legal status of a woman from + the instant she entered the matrimonial state, until released + therefrom by death or divorce.</p> + + <div class="sidenote"> + Legally dead. + </div> + + <p>Marriage was the act by which she ceased to have a legal + existence, by which, we are told, her very being became + incorporated or consolidated into that of her husband. From the + time her identity became thus merged, she was presumed by the law + to be under the protection and influence of her husband, to be so + absolutely and entirely one person with him, that she had + henceforth no life in law apart from his.</p> + + <div class="sidenote"> + Unity of person. + </div> + + <p>The legal fiction of the unity of the persons of husband and + wife dates back to feudal times, and may, perhaps, have been a + necessity of the age and of the peculiar social and political + systems of that period. Like many another law having its + inception in a sincere desire to secure the greatest good to the + greatest number, and apparently necessary for that purpose at the + period of social development which gave it birth, it existed for + centuries after it had ceased to result in any benefit or afford + any protection, and after the reason for its being had passed + away and been forgotten.</p> + + <div class="sidenote"> + Power of husband. + </div> + + <p>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.</p> + + <div class="sidenote"> + Disabilities. + </div> + + <p>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.</p> + + <div class="sidenote"> + Wife's power to contract. + </div> + + <p>The wife had no power to contract a legal debt nor to bind + herself by any kind of an agreement, neither could she make her + husband liable for any debt or contract, except for necessaries. + These, the husband was under obligation to provide, and in + contracting for them, the law assumed that the wife was acting as + his agent.</p> + + <div class="sidenote"> + Release of dower. + </div> + + <p>She might release her right of dower in lands of her husband, + but only when examined separately she acknowledged that the + conveyance or release was not secured by his influence or + coercion.</p> + + <div class="sidenote"> + Wife's earnings. + </div> + + <p>Her earnings though acquired by her individual labor and in a + business separate and apart from her husband belonged to him, and + he could collect them by action. This was the law though husband + and wife were living apart. They could be subjected to the + payment of his debts, by his creditors, and if he died without a + will they descended to his heirs as other personal property. They + were not considered the property of the wife, even in equity, + without a clear, express, irrevocable gift, or some distinct + affirmative act of the husband, divesting himself of them and + setting them apart for her separate use.</p> + + <div class="sidenote"> + Power of conveyance and devise. + </div> + + <p>A wife had no power to convey her real property, nor could she + devise her personal property by will, without the consent of her + husband.</p> + + <div class="sidenote"> + Domicile. + </div> + + <p>The husband had the legal right to establish his home or + domicile in any part of the world where "his interests, his + tastes, his convenience, or possibly, his caprice might suggest," + and it was the wife's duty to follow him. If she refused to + accompany him, no matter upon what ground she based her refusal, + she was guilty of desertion. A promise by the husband before + marriage as to the establishment of the place of residence of the + family, created a moral obligation only and was a mere nullity in + law. Whenever there was a difference of opinion between husband + and wife in regard to the location of the common home, the will + of the wife had to yield to that of the husband. This law of + domicile was based upon the grounds of the "identity of the + husband and wife, the subjection of the wife to the husband, and + the duty of the wife to make her home with her husband."</p> + + <div class="sidenote"> + Witness. + </div> + + <p>Neither husband nor wife was competent as a witness to testify + either for or against the other in civil or criminal cases.</p> + + <div class="sidenote"> + Husband entitled to society of wife. + </div> + + <p>The husband was entitled to the society and services of his + wife and he might bring an action for damages against anyone who + harbored her, or persuaded or enticed her to leave him or live + separate from him. If injuries were wrongfully inflicted upon + her, two actions might be brought against the party responsible + for the wrong, one by husband and wife for the personal injury to + the wife, and one by the husband for loss of the wife's services. + In either case, the amount recovered belonged to the husband.</p> + + <div class="sidenote"> + Suits at law. + </div> + + <p>The wife could neither sue or be sued unless her husband was + joined with her in the suit. A judgment recovered against her + alone was void, because she was unknown to the law apart from her + husband. One entered in her favor became the property of her + husband.</p> + + <div class="sidenote"> + Wife as executor. + </div> + + <p>The consent of the husband was necessary to enable a married + woman to act as executor, administrator, guardian or trustee.</p> + + <div class="sidenote"> + Duty of husband. + </div> + + <p>The husband became responsible for the maintenance of the wife + according to her rank and station, and if he failed to make + suitable provision for her, tradesmen might furnish her with + necessaries at her request and could collect payment from the + husband. <span class="sidenote">Liable for anti-nuptial + contracts.</span> He was liable for all of her debts contracted + before marriage, and this was the case, though he may have + received no property with her. He was responsible for certain + wrongs committed by her after marriage, such as libel and + slander, and judgment could be recovered against him. If a wrong + were committed jointly by both, action might be brought against + the husband alone. <span class="sidenote">Torts of wife.</span> + When a judgment was recovered upon contract, or because of the + wrongful act of the wife, if the husband failed to pay it, he + might be imprisoned.</p> + + <div class="sidenote"> + Widow's quarantine. + </div> + + <p>After the death of the husband the law gave the widow a right + to remain forty days in his house, during which time her dower + might be assigned. This right was known as the "widow's + quarantine."</p> + + <div class="sidenote"> + Custody of children. + </div> + + <p>The father was legally entitled to the custody of his + children,—the right of the mother was never recognized, it + being expressly stated by Blackstone that "a mother, as such, is + entitled to no power, but only to reverence and respect." He + might by will appoint a guardian for them after his death, though + yet unborn, and might apprentice them or give them into the + custody of others without the consent of the mother.</p> + + <div class="sidenote"> + Property rights. + </div> + + <p>All personal property belonging to the wife vested absolutely + in the husband at marriage. He could will it to whom he pleased + or, if he died without a will, it descended to his heirs. Even + her wearing apparel and ornaments known by the term + "paraphernalia," belonged to the husband. <span class= + "sidenote">Wife's paraphernalia</span> During his life he had the + power to sell or give them away, but he could not devise them by + will. If they remained in the possession of the wife while the + husband lived, she was entitled to them over and above her dower, + but even then creditors of the husband might claim them, if there + chanced to be a deficiency of other assets with which to pay the + debts of the estate.</p> + + <div class="sidenote"> + Choses in action. + </div> + + <p>The wife's choses in action, or evidences of money or property + due to her, such as notes, bonds, contracts or the like, belonged + to the husband if he reduced them to possession during her life, + and they could be taken for his debts. He might bequeath them by + will, but if he died without a will they descended to his heirs. + If he failed to reduce them to possession while the wife lived, + after his death they would revert to her heirs. If she outlived + her husband they belonged to her. After the husband's death the + wife took one-third of his personal estate if there were + children, and one-half if there were no children.</p> + + <div class="sidenote"> + Real property of wife. + </div> + + <p>The husband was entitled to the control, use and enjoyment, + together with the rents and profits of his wife's real estate + during the marriage, and if a living child were born, he had, + after the wife's death, a life estate in such property and might + retain possession of it while he lived. <span class= + "sidenote">Curtesy.</span> This was known as the husband's title + by curtsy. The wife took a dower, or life estate in one-third of + the husband's lands after his death, whether there were children + or not. This estate of <span class="sidenote">Dower.</span> dower + was forfeited should the husband be found guilty of treason, but + his interest in her lands was not disturbed by the treason of the + wife. His life interest in her real estate attached to trust + estates, but she could claim no interest in trust estates of her + husband. If the wife owned leases of land they could be sold or + assigned by the husband during marriage. If he survived his wife + they belonged to him, if she survived him, they belonged to her, + provided he had not disposed of them while living.</p> + + <div class="sidenote"> + Descent of property. + </div> + + <p>Personal property descended to males and females in equal + shares, but the oldest son was entitled to the whole of his + father's real property.</p> + + <div class="sidenote"> + Unity of person in criminal law. + </div> + + <p>The unity of husband and wife was not so strongly affirmed by + the common law when it dealt with their relation to criminal + matters. When a wife committed an offense against the state she + possessed a separate and distinct life and personalty, for the + purposes of punishment. It is true that she was still inferior + and this distinction was recognized and emphasized by the + difference in the penalties imposed for the commission of the + same crimes, these penalties being in inverse ratio to the + importance of the criminal.</p> + + <div class="sidenote"> + Theft, burglary, etc. + </div> + + <p>If a wife committed theft, burglary or other offenses in the + company or presence of her husband, the law presumed that she + acted under compulsion and held her not guilty, but this + presumption did not extend to cases of murder or treason, and it + might always be overcome by proof that she acted independently. + <span class="sidenote">Presumption of innocence.</span> The + exception in cases of murder or treason, we are informed, was not + alone because of the magnitude of the crimes, but rather on + account of "the husband having broken through the most sacred tie + of social community by rebellion against the state, had no right + to that obedience from a wife which he himself, as a subject, had + forgotten to pay."</p> + + <div class="sidenote"> + Murder of wife. + </div> + + <p>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." <span class= + "sidenote">Murder of husband.</span> 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.</p> + + <div class="sidenote"> + Petit treason. + </div> + + <p>In cases of petit treason the penalty depended upon the sex of + the criminal, men being sentenced to be drawn and hanged, while + women were drawn and burnt alive.</p> + + <div class="sidenote"> + Larceny, bigamy, etc. + </div> + + <p>In larceny, bigamy, manslaughter and other crimes, men might + claim the benefit of clergy and by taking holy orders, escape all + punishment, except branding in the hand and a few months + imprisonment, while women might receive sentence of death and be + executed for the first offense. Later the law was changed so that + in cases of simple larceny under the value of ten shillings, they + might be burned in the hand and whipped, stocked or imprisoned + for any time not exceeding one year. The disability of sex and of + ignorance were both finally removed and all men and women + admitted to benefit of clergy.</p> + + <div class="sidenote"> + Adultery and seduction. + </div> + + <p>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. <span class= + "sidenote">Rape.</span> The crime of rape was punishable by + death, and consent, though proved, was no defense, if the offense + was committed upon a child under ten years of age.</p> + + <div class="sidenote"> + Right of appeal. + </div> + + <p>Magna Charta, granted by King John, while redressing many + hardships and grievances incident to feudal times, and confirming + and securing to the people many rights and liberties, among which + was the right of the wife to dower in her husband's property, + denied to women the right of appeal except in case of the death + of their husbands. The right of appeal was the privilege of + private prosecution for crime. (Analogus to our present method of + commencing prosecutions by information.)</p> + + <p>According to Blackstone, even the disabilities of the wife + were for the most part intended for her protection and benefit, + and he adds: "So great a favorite is the female sex of the laws + of England!"</p> + + <div class="sidenote"> + Reason for discrimination. + </div> + + <p>The discrimination made by the common law between men and + women, was based alone upon the assumption that women were, and + must be always dependent by reason of their sex. In the light of + a broader humanity, the distinctions seem cruel and barbarous, + but that they were the result of any spirit of injustice or + intentional tyranny, or of any desire on the part of men to + oppress women or impose upon them any hardship or burden because + of their physical weakness, is not at all probable. They were + merely the outgrowth of the conditions incident to ruder stages + of social development, and were, perhaps, as favorable to women + at that period, as the laws of our own times will be considered + when judged in the light of the civilization of the future, after + successive centuries of intellectual and moral growth have been + added to the enlightenment of to-day.</p> + <hr style="width: 65%;"> + <a name="Law_of_Iowa"></a> + + <h2>Law of Iowa.</h2><br> + + <h2>CHAPTER II.</h2> + + <center> + MARRIAGE. + </center><br> + + <div class="sidenote"> + Contract. + </div> + + <p>Marriage is a civil contract requiring the consent of parties + capable of entering into other contracts, except as herein + otherwise declared. [§3376.] While marriage is defined to be + a contract, it is rather a status or relation assumed by the act + of marriage. Society is recognized as a third party to the + agreement and as having a well defined interest in the duties and + obligations of such relation. It is because of this interest, + that the law defines the qualifications of the parties, the + terms, rights and obligations of the contract, and also for what + causes and in what manner it may be terminated. "It stands alone + and can be assimilated to no other contract."</p> + + <div class="sidenote"> + Between what ages valid. + </div> + + <p>A marriage between a male person of sixteen and a female of + fourteen years of age is valid, but if either party has not + attained the age thus fixed, the marriage is a nullity or not at + the option of such party made known at any time before he or she + is six months older than the age thus fixed. [§3377.] The + common law rule fixing the age of consent to marriage at fourteen + for males and twelve for females is not repealed in Iowa. The + time in which the parties may disaffirm the marriage is merely + extended by the statute.</p> + + <div class="sidenote"> + License. + </div> + + <p>Previous to any marriage within this state, a license for that + purpose must be obtained from the clerk of the district court of + the county wherein the marriage is to be solemnized. + [§3378.] As under the common law, no express form or + ceremony is necessary to constitute a valid marriage, any mutual + agreement between the parties to assume the relation of husband + and wife, followed by cohabitation, being sufficient, provided + there is no legal disability on the part of either existing at + the time. 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.</p> + + <div class="sidenote"> + Under age. + </div> + + <p>Such license must not in any case be granted where either + party is under the age necessary to render the marriage + absolutely valid, nor shall it be granted where either party is a + minor, <span class="sidenote">Consent of parent.</span> without + the previous consent of the parent or guardian of such minor, nor + where the condition of either party is such as to disqualify him + from making any other civil contract. [§3379.]</p> + + <div class="sidenote"> + Proof of age. + </div> + + <p>Unless such clerk is acquainted with the age and condition of + the parties for the marriage of whom the license is applied for, + he must take the testimony of competent and disinterested + witnesses on the subject. [§3380.]</p> + + <div class="sidenote"> + Record. + </div> + + <p>He must cause due entry of the application for the issuing of + the license to be made in a book to be procured and kept for that + purpose, stating that he was acquainted with the parties and knew + them to be of competent age and condition, or that the requisite + proof of such fact was made known to him by one or more + witnesses, stating their names, which book shall constitute a + part of the records of his office. [§3381.]</p> + + <div class="sidenote"> + Proof of consent of parent. + </div> + + <p>If either party is a minor, the consent of the parent or + guardian must be filed in the clerk's office after being + acknowledged by the said parent or guardian, or proved to be + genuine, and a memorandum of such facts must also be entered in + said book. [§3382.]</p> + + <div class="sidenote"> + Penalty. + </div> + + <p>If the clerk of the district court grants a license contrary + to the provisions of the preceding sections, he is guilty of a + misdemeanor, and if a marriage is solemnized without such license + being procured, the parties so married and all persons aiding in + such marriage are likewise guilty of a misdemeanor. + [§3883.]</p> + + <p>The punishment provided for misdemeanors is imprisonment in + the county jail not more than one year, or by fine not exceeding + five hundred dollars, or by both fine and imprisonment.</p> + + <div class="sidenote"> + Who may solemnize. + </div> + + <p>Marriages must be solemnized either:</p> + + <ol> + <li>By a justice of the peace or mayor of the city or + incorporated town wherein the marriage takes place;</li> + + <li>By some judge of the supreme or district court of this + state;</li> + + <li>By some officiating minister of the gospel ordained or + licensed according to the usages of his denomination. + [§3384.]</li> + </ol> + + <div class="sidenote"> + Certificate + </div> + + <p>After the marriage has been solemnized the officiating + minister or magistrate shall, on request, give each of the + parties a certificate thereof. [§3385.]</p> + + <div class="sidenote"> + Penalty. + </div> + + <p>Marriages solemnized with the consent of parties in any other + manner than is herein prescribed, are valid, but the parties + themselves, and all other parties aiding or abetting, shall + forfeit to the school fund the sum of fifty dollars each. + [§3386.]</p> + + <div class="sidenote"> + Return. + </div> + + <p>The person solemnizing marriage shall forfeit a like amount, + unless within ninety days after the ceremony he shall make return + thereof to the clerk of the district court. [§3387.]</p> + + <div class="sidenote"> + Register of marriages. + </div> + + <p>The clerk of the district court shall keep a register + containing the names of the parties, the date of the marriage, + and the name of the person by whom the marriage was solemnized, + which, or a certified transcript therefrom, is receivable in all + courts and places as evidence of the marriage and the date + thereof. [§3388] The register of marriages kept by the clerk + is always sufficient to establish marriage, in the absence of + evidence to the contrary, but record evidence is not + indispensable. The fact of marriage may be shown in various ways. + It may be proved by the admissions or uncontradicted testimony of + either party, or a legal presumption may be raised by the + testimony of either husband or wife with proof of continued + cohabitation. The evidence of witnesses who were present and + witnessed the marriage is always sufficient.</p> + + <div class="sidenote"> + Peculiar mode. + </div> + + <p>These provisions so far as they relate to procuring licenses + and to the solemnizing of marriages, are not applicable to + members of any particular denomination having, as such, any + peculiar mode of entering the marriage relation [§3389].</p> + + <div class="sidenote"> + Husband responsible for return. + </div> + + <p>But when any mode is thus pursued which dispenses with the + services of a clergyman or magistrate, the husband is responsible + for the return directed to be made to the clerk and is liable to + the above named penalty if the return is not made + [§3390].</p> + + <div class="sidenote"> + When void. + </div> + + <p>Marriages between persons whose marriage is prohibited by law, + or who have a husband or wife living, are void; but if the + parties live and cohabit together after the death of the former + husband or wife, such marriage shall be deemed valid + [§3392]. A judicial decree is not necessary to annul a + marriage between parties one of whom has a wife or husband living + at the time, as such marriages are absolutely void, nor does such + marriage confer any right upon either in the property of the + other. A marriage procured by fraud or force is void, because it + lacks the essential element of consent. Such marriages may be + annulled by a court of equity, but false representations as to + character, social position or fortune do not constitute such + fraud on the opposite party as to avoid a marriage induced + thereby.</p> + <hr style="width: 65%;"> + <a name="CHAPTER_III"></a> + + <h2>CHAPTER III.</h2><br> + + <center> + HUSBAND AND WIFE + </center> + + <div class="sidenote"> + Property rights of married women. + </div> + + <p>A married woman may own in her own right, real and personal + property acquired by descent, gift or purchase, and manage, sell, + convey, and devise the same by will, to the same extent and in + the same manner that the husband can property belonging to him. + [§3393.] The husband is the legal head of the family and + household furniture, pictures and all similar property used in + the house occupied by husband and wife, is considered as being in + the possession of the husband and under his control. Such + property may be sold or mortgaged by the husband without the + consent of the wife. Property conveyed to both jointly is held by + them as tenants-in-common. Each owns an undivided one-half + interest in such property, and this interest may be sold on + execution to satisfy claims against husband or wife as the case + may be. Property purchased with funds belonging to both husband + and wife is owned by them jointly, the interest of each being in + proportion to the amount of the purchase price contributed by + each.</p> + + <div class="sidenote"> + Real property, Conveyance, or contract. + </div> + + <p>A married woman may convey or encumber any real estate or + interest therein belonging to her, and may control the same, or + contract with reference thereto, to the same extent, and in the + same manner as other persons [§3106].</p> + + <div class="sidenote"> + Conveyance by husband and wife. + </div> + + <p>Every conveyance made by a husband and wife shall be deemed + sufficient to pass any and all right of either to the property + conveyed, unless the contrary appears on the face of the + conveyance [§3107]. While Iowa was still a territory, in + 1840, power was conferred upon a married woman to release her + dower and to convey her real estate by any conveyance executed by + herself and husband and acknowledged by a separate examination + and acknowledgment. This law was re-enacted in 1846, and was the + first law passed in the State of Iowa for the better protection + of married women. This remained the law until 1851, when an act + was passed by which she might convey her interest in real estate + "the same as any other person."</p> + + <div class="sidenote"> + Interest of either in other's property. + </div> + + <p>When property is owned by either the husband or wife, the + other has no interest therein which can be the subject of + contract between them, or such interest as will make the same + liable for the contracts or liabilities of either the husband or + wife who is not the owner of the property, except as provided in + this chapter. [§3394.] The distributive share or dower + interest of each in the property of the other, is inchoate and + becomes complete only upon the death of the owner of the + property; consequently any agreement between the husband and wife + relinquishing their respective interests in each other's + property, though such agreement should be made in contemplation + of separation is invalid. Upon a dissolution of the marriage + relation by divorce, the husband and wife may contract with each + other with reference to a division of the property, provided the + contract is reasonable, just and right. A husband may pay taxes + and interest on an incumbrance on a homestead owned by his wife, + but occupied by both, and may make repairs upon the same. He may + make improvements on land owned by the wife and may expend time + and labor in caring for any of her property, without rendering + such property liable for his debts, provided there is no + collusion between them and no evidence of fraud on the part of + either.</p> + + <p>A wife's property cannot be taken for her husbands debts, + although it may be in possession of the husband and the creditors + have no notice of the wife's ownership.</p> + + <div class="sidenote"> + Remedy by one against the other. + </div> + + <p>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. [§3395.] If + property or money belonging to the wife, but in possession of the + husband is used by him, with her knowledge and consent, in the + payment of debts incurred for family expenses, or for other + purposes connected with the support of the family, she cannot + recover for the same, in the absence of an express agreement on + his part to repay her. If a wife advances money or property to + her husband to be used as he may choose, the presumption is that + she does so in view of the mutual benefits which may accrue from + the advancement and she cannot recover the same unless there is + an agreement for its repayment.</p> + + <div class="sidenote"> + Husband not liable for wife's torts. + </div> + + <p>For all civil injuries committed by a married woman, damages + may be recovered from her alone, and her husband shall not be + responsible therefor except in cases where he would be jointly + responsible with her if the marriage did not exist [§3396.] + This statute abrogates the rule of the common law, making a + husband responsible for civil injuries committed by his wife. The + common law presumption that criminal acts done in the presence of + the husband were by compulsion, is still recognized in this State + but may be overcome by proof to the contrary.</p> + + <div class="sidenote"> + Conveyances to each other valid. + </div> + + <p>A conveyance, transfer or lien executed by either husband or + wife, to or in favor of the other shall be valid to the same + extent as between other persons [§3397.] When the rights of + creditors might be prejudiced by transfers of property between + husband and wife, such transactions will be closely scrutinized, + and the utmost good faith must plainly appear, but where no + fraudulent intention is shown they will be upheld if based upon + an adequate consideration. If a conveyance is made by the husband + to the wife when the husband is largely indebted and insolvent, + such conveyance is presumptively fraudulent, but a conveyance to + a wife in payment of a valid claim, even though made at a time + when the husband is largely indebted to others, will not be + considered fraudulent the wife having the same right as other + creditors to obtain payment. All contracts between husband and + wife where no other consideration appears than an agreement to + perform some duty already incumbent upon the parties, because of + their relations as husband and wife, are against public policy, + and will not be enforced in law. Such, for example, as a promise + by the husband to pay money to the wife to induce her to live + with him, when she has no legal ground for not living with him; + or an agreement to allow the husband to obtain a divorce when he + has no legal cause for divorce, or a conveyance of property in + consideration of future care and support because the husband is + growing old; or a contract between husband and wife by which the + husband agrees to pay the wife at stated intervals, sums of + money, in consideration of the faithful performance by the wife + of the obligations incident to the marriage relation. But our + courts have held that exempt property may be transferred by the + husband to the wife without any consideration; that a deed from + husband to wife in consideration of a dismissal by the latter, of + a proceeding for divorce, is valid; that a contract between + husband and wife by which the wife, for a consideration, after a + decree of divorce, agrees to release all her dower interest in + the real estate of the husband, is binding. Voluntary + conveyances, <span class="sidenote">Conveyances to third + parties.</span> in favor of third parties, by a man or woman in + contemplation of marriage, and with the evident intention of + defeating the marital rights of the other party, in such + property, will be held fraudulent, and may be set aside in an + action by the injured party after marriage. Contracts and + conveyances made before marriage and duly recorded, will not be + set aside on account of the marriage relation, as the fact of + recording is sufficient to charge the wife with notice of the + transactions. Ante-nuptial contracts, if free from fraud and + imposition, are valid, and such a contract stipulating that each + is to have the untrammeled and sole control of his or her own + property, real and personal, as though no marriage had taken + place, will be enforced. The dower right of each in the other's + property is completely waived by such contract.</p> + + <div class="sidenote"> + Abandonment of either. + </div> + + <p>In case the husband or wife abandons the other and leaves the + state, and is absent therefrom for one year without providing for + the maintenance and support of his or her family, or is confined + in jail or the penitentiary for the period of one year or upward, + the district court of the county where the husband or wife, so + abandoned or not confined, resides, may, on application by + petition setting forth fully the facts, authorize him or her, to + manage, control, sell and encumber the property of the husband or + wife for the support and maintenance of the family and for the + purpose of paying debts. Notice of such proceedings shall be + given as in ordinary actions, and anything done under or by + virtue of the order of the court, shall be valid to the same + extent as if the same was done by the party owning the property. + [§3398.] A wife who is abandoned by her husband without her + fault, may pledge his credit for necessaries, and if left in the + management of his business may make all contracts incident to + such management. She may also sell exempt property and apply the + proceeds towards the support of the family before absolutely + forced to do so by the destitution of the family.</p> + + <div class="sidenote"> + Contracts and sales binding. + </div> + + <p>All contracts, sales or incumbrances made by either husband or + wife by virtue of the power contemplated in the preceding + section, shall be binding on both, and during such absence or + confinement, the person acting under such power, may sue and be + sued thereon, and for all acts done, the property of both shall + be liable. No suit or proceeding shall abate or be in anywise + affected by the return or release of the person confined, but he + or she may be permitted to prosecute or defend jointly with the + other. [§3399.]</p> + + <div class="sidenote"> + Decree set aside. + </div> + + <p>The husband or wife affected by the proceedings contemplated + in the preceding sections, may have the order or decree of the + court set aside or annulled, but the setting aside of such decree + or order shall in nowise affect any act done thereunder. + [§3400.]</p> + + <div class="sidenote"> + Attorney in fact. + </div> + + <p>A husband or wife may constitute the other his or her attorney + in fact, to control and dispose of his or her property for their + mutual benefit, and may revoke the same to the same extent and + manner as other persons. [§3401.] The fact of the marital + relation does not, of itself, establish the presumption that the + husband is the agent of the wife, for the transaction of business + for her, but in order to bind her, he must be expressly + authorized to act as agent, or she must, after knowledge of the + act, expressly or impliedly ratify it. Such agency or + ratification may be established by circumstances, and the degree + of evidence required in such cases, is less than is necessary to + establish an agency between independent parties, or the + ratification by the husband, of acts done by the wife or his + agent.</p> + + <div class="sidenote"> + Wages of wife. + </div> + + <p>A wife may receive the wages of her personal labor and + maintain an action therefor in her own name, and hold the same in + her own right; she may prosecute and defend all actions at law or + in equity for the preservation and protection of her rights and + property as if unmarried. [§3402.] The husband is entitled + to the wife's labor and assistance in the duties and obligations + growing out of the marriage relation, and to her earnings, if she + is not engaged in a separate business on her own account; but her + earnings for services performed for others than her husband or + acquired in carrying on an independent business, belong to her + alone. Such earnings may be invested in property and it will be + exempt from seizure for debts of her husband.</p> + + <p>She may bring actions for injuries to herself, whether of + person, property or reputation in the same manner as if she were + unmarried. If she suffers personal injury by which the husband is + deprived of her services or society he has a right of recovery + for such loss and for expenses for medicine and medical + treatment. The wife cannot recover in such case, unless it + appears that she has expended her own money in payment of such + expenses. If, at the time of the injury she is engaged in a + separate business, and death results, the husband may still + recover for loss of society and expenses, but an action for + damages can be brought only by the administrator of her estate. + Although husband or wife may maintain an action against the other + for the recovery of property, neither has a right of action for + damages sustained by the infliction of personal injury, and this + is true even though the one inflicting the injury has been + criminally convicted and fined for the assault.</p> + + <div class="sidenote"> + Property of one not liable for debts of the other. + </div> + + <p>Neither husband or wife is liable for the debts or liabilities + of the other incurred before marriage, and except as herein + otherwise declared, they are not liable for the separate debts of + each other; nor are the wages, earnings, or property of either, + nor is the rent or income of such property liable for the + separate debts of the other [§3403.] The husband is liable + for necessaries furnished the wife, upon an implied obligation to + provide for her a reasonable support. 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. + It has been held that jewelry is included in the term necessaries + and that attorney's fees in divorce proceedings by the wife, can + be recovered from the husband. If the wife is compelled to leave + her husband because of cruel and improper conduct on his part, + the husband is still presumed to have extended to her a general + credit for necessaries, such as meat, drink, clothes, medicine, + etc., suitable to his degree and circumstances.</p> + + <div class="sidenote"> + Contracts of wife. + </div> + + <p>Contracts may be made by a wife and liabilities incurred, and + the same enforced by or against her to the same extent and in the + same manner as if she were unmarried [§3404.] By this + provision a wife is clothed with the same rights enjoyed by her + husband, and must, therefore, assume the same liabilities. She + has the same freedom to contract in reference to her property, or + other matters, and will be held to the same strict + accountability. The law will enforce her obligations with the + same impartiality, whether such obligations are express or + implied. She may contract with reference to all kinds of + property, including real estate, and may mortgage her property as + security for the debt of another, in precisely the same manner + that her husband could do in similar cases.</p> + + <div class="sidenote"> + Family expenses. + </div> + + <p>The expenses of the family and the education of the children + are chargeable upon the property of both husband and wife, or of + either of them, and in relation thereto they may be sued jointly + or separately. [§3405.] Both husband and wife are personally + responsible for family expenses. The credit may be extended to + the husband and the contract made with him alone, and the wife + will be liable though she may have no knowledge of the purchase + and has given no consent thereto. It is sufficient to show that + the articles were used, or kept for use in the family, and a + judgment may be rendered against the wife alone. But the husband + cannot subject the property of his wife to any liability for + articles for family use when it appears that such articles were + not a necessity, if the wife has objected to the purchase and + notified the seller that she will not pay for the same. "Expenses + of the family," are not limited to necessary expenses, but + whatever is kept or used in the family is included in the term. A + piano, an organ, a watch and other jewelry, a cook stove and + fixtures, have all been held to come within the term "family + expense," for which the property of the wife is liable. But a + reaping machine, though used by the husband in the business by + which he supports his family, is not a legitimate item of family + expense, nor can a plow be included therein. The expense of + treatment of a wife at a hospital for the insane, has been held + not to be a family expense. 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. If + the family is supported in whole, or in part, by the wife, she + cannot recover back the money thus expended, from her husband or + his estate, as the law places such duty equally on both.</p> + + <div class="sidenote"> + Removal from homestead. + </div> + + <p>Neither husband nor wife can remove the other, nor their + children from their homestead without his or her consent, and if + he abandons her, she is entitled to the custody of their minor + children, unless the district court, upon application for that + purpose, shall, for good cause, otherwise direct + [§3406.]</p> + + <div class="sidenote"> + Conveyance of property. + </div> + + <p>When either the husband or wife is insane, and incapable of + executing a deed, and relinquishing or conveying his or her right + to the real property of the other, the sane person may petition + the district court of the county where such petitioner resides, + or of the county where said real estate is situated, setting + forth the facts and praying for an order authorizing the + applicant or some other person to execute a deed of conveyance + and thereby relinquish the interest of either in the real + property of the other [§3407.]</p> + + <div class="sidenote"> + Proceedings and decree. + </div> + + <p>Upon such application the court has power to appoint some + person or attorney guardian of the person alleged to be insane, + who shall ascertain as to the propriety, good faith and necessity + of the prayer of the petitioner, and who shall have power to + resist said application. If the court is satisfied that the + petition is made in good faith, and that the petitioner is the + proper person to exercise the power and make the conveyance, and + that such power is necessary and proper, said court shall enter + up a decree authorizing the execution of all such conveyances, + for and in the name of such husband or wife, by such person as + the court may appoint [§§3408-3409.]</p> + + <div class="sidenote"> + Appointment, Revocation. + </div> + + <p>All deeds executed by the person thus appointed shall be valid + in law, and shall convey the interest of such insane person in + the real estate so conveyed; said power shall cease and become + void as soon as he or she shall become sane and of sound mind, + and apply to the court to revoke said power, and the same shall + be evoked; but such revocation shall in nowise affect conveyances + previously made. [§3410.]</p> + <hr style="width: 65%;"> + <a name="CHAPTER_IV"></a> + + <h2>CHAPTER IV.</h2><br> + + <center> + DIVORCE, ANNULLING MARRIAGES AND ALIMONY. + </center> + + <div class="sidenote"> + Jurisdiction. + </div> + + <p>The district court where either party resides, has, + jurisdiction of the subject matter of this chapter. [§3411]. + State legislatures have power to grant divorces in all cases + where such power has not been conferred on the courts of the + state by some constitutional provision or legislative enactment. + The legislature of this state has been deprived of the power to + grant divorces for any cause by Article 3, §27, of the + constitution, which provides that "no divorce shall be granted by + the general assembly." A divorce obtained from a court not having + jurisdiction is absolutely void. The residence necessary to give + the court jurisdiction must be permanent, or at least of a + sufficient period of time to indicate an intention of continued + residence and citizenship. 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. A decree of divorce can + always be set aside for fraud in obtaining it.</p> + + <div class="sidenote"> + Petition. + </div> + + <p>When the application for divorce is against a party not + residing in this state, the petition, in addition to the facts on + account of which the applicant claims the relief sought, must + state that such applicant has been for the last year a resident + of the state, stating the town and county in which he has + resided, and the length of his residence therein, after deducting + all absences from the state; that he is now a resident thereof; + that such residence has been in good faith and not for the + purpose of obtaining a divorce only; and it must in all cases + state that the application is made in good faith and for the + purpose set forth in the petition. [§3412.]</p> + + <div class="sidenote"> + Verification. Evidence. Hearing. + </div> + + <p>All the allegations of the petition must be verified by oath + and proved by competent evidence. No divorce shall be granted on + the evidence of the applicant alone, and all such actions shall + be heard in open court on the testimony of witnesses or + depositions. [§3413.] No divorce can be granted by consent + of parties unless grounds therefor can be shown by competent + evidence, and if collusion or conrivance on the part of the + defendant can be shown, such fact will be a valid defense.</p> + + <div class="sidenote"> + Causes. + </div> + + <p>Divorce from the bonds of matrimony may be decreed against the + husband for the following causes:</p> + + <ol> + <li>When he has committed adultery subsequent to the + marriage;</li> + + <li>When he wilfully deserts his wife and absents himself + without a reasonable cause for the space of two years;</li> + + <li>When he is convicted of felony after the marriage;</li> + + <li>When, after marriage, he becomes addicted to habitual + drunkenness;</li> + + <li>When he is guilty of such inhuman treatment as to endanger + the life of his wife. [§3414.]</li> + </ol> + + <p>A previous law of our state provided that when it was fully + apparent to the court that the parties could not live in peace + and happiness together, and that their welfare required a + separation, a decree of divorce might be granted, but no valid + divorce can now be granted for any other cause than for some one + of those enumerated above; and this is true, although it may + plainly appear that a party has wholly disregarded his marriage + vows and obligations in various other ways.</p> + + <div class="sidenote"> + Adultery. + </div> + + <p>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 disposition of the parties may be shown, with + the fact of their being together and having an opportunity to + commit the act.</p> + + <div class="sidenote"> + Desertion. + </div> + + <p>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 <i>prima facie</i> 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. 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.</p> + + <div class="sidenote"> + Felony. + </div> + + <p>A conviction for felony which may be subject to reversal does + not constitute ground for divorce, but such conviction must be + final and absolute.</p> + + <div class="sidenote"> + Drunkenness. + </div> + + <p>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.</p> + + <div class="sidenote"> + Cruel treatment. + </div> + + <p>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. Ungovernable outbursts of + rage, the use of profane and obscene language, applying insulting + epithets to the wife in the presence of others, acts of cruelty + and neglect in sickness, coupled with failure to provide suitable + food and clothing, have all been held to be such cruelty, which, + if long continued, would result in danger to life. Condonation is + always a valid defense in proceedings for divorce. If the wrong + is once forgiven, it cannot afterwards be made a ground for + divorce, but the mere fact that a wife continues to live in the + same house with her husband, and does the household work, is not + such condonation as will defeat her action.</p> + + <div class="sidenote"> + Husband from wife. + </div> + + <p>The husband may obtain a divorce from his wife for like + causes, and also when the wife at the time of the marriage was + pregnant by another than her husband, unless such husband had an + illegitimate child or children then living, which was unknown to + the wife at the time of the marriage. [§3415.] In many other + states, divorce will be granted to the husband, for the cause + here named, but in no other state is it provided that in such + case, a husband who had an illegitimate child at the time of the + marriage, unknown to the wife, cannot take advantage of this fact + to obtain a divorce.</p> + + <div class="sidenote"> + Cross petition. + </div> + + <p>The defendant may obtain a divorce for the causes as above + stated, by filing a cross petition. [§3416.]</p> + + <div class="sidenote"> + Maintenance during litigation. + </div> + + <p>The court may order either party to pay the clerk a sum of + money for the separate support and maintenance of the adverse + party and the children, and to enable such party to prosecute or + defend the action. [§3417.] In applying for an order + granting temporary alimony it is not necessary to show that the + party making the application is entitled to a divorce. It is + sufficient if it appears that such party is without means of + support and unable to prosecute the action without such + allowance. The fact of marriage must be either admitted or + proved. The court may allow attorney's fees in proceedings for + divorce and alimony, but the party against whom the action is + brought, is not liable, if the other party is unsuccessful. Where + the applicant for divorce is ordered to pay a certain sum of + money to enable the defendant to defend, it he fails to obey this + order, the action may be dismissed.</p> + + <p>If it appears that the father is an unfit person to have the + custody of the children, pending a proceeding for divorce, the + court has power to provide for their custody and maintenance as + may be for the best interest of the children.</p> + + <div class="sidenote"> + Attachment. + </div> + + <p>A judgment or order for temporary alimony is a lien upon the + property of the person against whom the order is directed, and + such property may be levied upon by attachment and held to + satisfy the decree of the court. [§3418.] Attachment may be + allowed without bond and it may be granted in a suit to annul an + illegal marriage as well as in one for divorce. It may be levied + on the homestead as well as other property. The disposition of + property by the defendant may also be restrained by + injunction.</p> + + <div class="sidenote"> + Showing. + </div> + + <p>In making such orders, the court or judge shall take into + consideration the age, condition, sex and pecuniary condition of + the parties, and such other matters as are deemed pertinent, + which may be shown by affidavits in addition to the pleadings or + otherwise, as the court or judge may direct. [§3419.]</p> + + <div class="sidenote"> + Alimony, Custody of children, Changes. + </div> + + <p>When a divorce is decreed, the court may make such order in + relation to the children, property, parties, and the maintenance + of the parties as shall be right and proper. Subsequent changes + may be made by the court, in these respects when circumstances + render them expedient. [§8420.] In granting a divorce, full + power is given the court over the questions of permanent alimony + and custody of children, and the amount of alimony will be + determined by a careful consideration of the circumstances of the + parties. The allowance is usually for a certain sum of money, but + the court may set apart a specific portion of property as + alimony. Only in rare cases and under peculiar circumstances will + alimony be granted to the party in fault. A judgment for alimony + may be made a lien upon specific property, and the court may + declare it a lien on the homestead. The court granting a divorce + and alimony retains jurisdiction of the same, and upon a + subsequent change in the circumstances of the parties, may modify + or change the decree in relation to alimony and custody of + children as may seem just and proper and for the best interests + of all parties. A suit for alimony without divorce may be + brought, where the wife has been compelled to leave her husband + on account of misconduct on his part justifying the separation. + 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.</p> + + <div class="sidenote"> + Forfeiture. + </div> + + <p>When a divorce is decreed the guilty party forfeits all rights + acquired by the marriage. [§3421.] After a decree of divorce + neither party can have any interest in the property of the other + except that which is granted by the decree, and this applies to + claim for dower in case of survival.</p> + + <div class="sidenote"> + Annulling illegal marriages. + </div> + + <p>Marriages may be annulled for the following causes:</p> + + <ol> + <li>Where marriage between the parties is prohibited by + law.</li> + + <li>Where either party was impotent at the time of the + marriage.</li> + + <li>Where either party has a husband or wife at the time of the + marriage, provided they have not continued to live and cohabit + together after the death of the former husband or wife.</li> + + <li>Where either party was insane or idiotic at the time of the + marriage. [§3422.] 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. When a marriage is absolutely void by law, it is + not necessary to bring an action to annul it, before + contracting a subsequent legal marriage.</li> + </ol> + + <div class="sidenote"> + Petition. + </div> + + <p>A petition shall be filed in such cases as in actions for + divorce, and all the provisions of this chapter shall apply to + such cases except as otherwise provided. [§3423]</p> + + <div class="sidenote"> + Validity determined. + </div> + + <p>When the validity of a marriage is doubted, either party may + file a petition and the court shall decree it annulled or + affirmed according to the proof. [§3424]</p> + + <div class="sidenote"> + Children. Legitimacy. + </div> + + <p>When a marriage is annulled on account of the consanguinity or + affinity of the parties, or because of impotency, the issue shall + be illegitimate, but when on account of non-age, or insanity, or + idiocy, the issue is the legitimate issue of the party capable of + contracting marriage. [§3425]</p> + + <div class="sidenote"> + Prior marriage. + </div> + + <p>When a marriage is annulled on account of a prior marriage, + and the parties contracted the second in good faith, believing + the prior husband or wife to be dead, that fact shall be stated + in the degree of nullity; and the issue of the second marriage, + begotten before the decree of the court, is the legitimate issue + of the parent capable of contracting. [§3426.]</p> + + <div class="sidenote"> + Alimony. + </div> + + <p>In case either party entered into the contract of marriage in + good faith, supposing the other to be capable of contracting, and + the marriage is declared a nullity, such fact shall be entered in + the decree, and the court may decree such innocent party + compensation as in cases of divorce. [§3427.]</p> + <hr style="width: 65%;"> + <a name="CHAPTER_V"></a> + + <h2>CHAPTER V.</h2><br> + + <center> + MINORS AND GUARDIANSHIP. + </center> + + <div class="sidenote"> + Majority. + </div> + + <p>The period of minority extends in males to the age of + twenty-one years, and in females to that of eighteen, but all + minors attain their majority by marriage. [§3428.] The + disability of minority may also be terminated by death.</p> + + <div class="sidenote"> + Contracts. + </div> + + <p>A minor is bound not only by contracts for necessaries, but + also for his other contracts, unless he disaffirms them within a + reasonable time after he attains his majority, and restores to + the other party all money or property received by him by virtue + of the contract and remaining within his control at any time + after his attaining his majority. [§3429.] The rule + respecting the contract of an infant is, that when the court can + pronounce it to be to the infant's prejudice, it is void, and + when to his benefit, as for necessaries, it is good, and when of + uncertain nature, it is voidable, at the election of the infant. + <span class="sidenote">Disaffirmance.</span> As to what will be + "a reasonable time," within which a minor must disaffirm his + contract, must depend upon the peculiar circumstances of each + case. In case of the marriage of a minor the time for + disaffirmance will commence from the date of the marriage. The + intention of this law is to limit the time in which a minor may + take advantage of his minority and disaffirm his contracts, but + the disaffirmance may be either before or after majority, if + within a reasonable time after becoming of age. The minor is + under no obligation to restore money or property, unless it is + the identical money or property received by virtue of the + contract, and he may therefore disaffirm his contract without + rendering back the consideration, if such consideration is no + longer under his control.</p> + + <div class="sidenote"> + Misrepresentations. Engaging in business. + </div> + + <p>No contract can be thus disaffirmed in cases, where on account + of the minor's own misrepresentations as to his majority, or from + his having engaged in business as an adult, the other party had + good reason to believe the minor capable of contracting. + [§3430.] If the fact of minority is known to the other + party, the minor will not be bound by his contracts, although he + may be engaged in business as an adult. The fact that he is + engaged in business on his own account will alone be sufficient + evidence to authorize others to conclude that he has attained his + majority and will make all contracts to which he is a party, + binding upon him.</p> + + <div class="sidenote"> + Natural guardians. + </div> + + <p>The parents are the natural guardians of their minor children + and are equally entitled to the care and custody of them. + [§3432.] While a parent is the natural guardian of his + child, this guardianship is not absolute, and may be lost by any + misconduct on the part of the parent which would render it not + best for the child to remain in his care and under his control. + The duty of furnishing support to minor children rests equally + upon both parents, but neither one is legally liable for the + support of their adult children. An adult child living at home in + the family of the parent, being supported as a member of the + family, and performing services in the household, cannot recover + payment for such services in the absence of an express contract + on the part of the parent to pay for them. A stepfather stands in + the position of a parent to the children of his wife by a former + husband, <i>provided</i>, 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.</p> + + <div class="sidenote"> + Surviving parent, Guardian appointed. + </div> + + <p>Either parent dying before the other, the survivor becomes the + guardian. If there be no parent or guardian qualified and + competent to discharge the duty, the district court shall appoint + a guardian. [§3488.]</p> + + <div class="sidenote"> + Of property. + </div> + + <p>If the minor has property not derived from either parent, a + guardian must be appointed to manage such property, which may be + either parent, if suitable and proper. [§3434.]</p> + + <div class="sidenote"> + Minor may choose. + </div> + + <p>If the minor be over the age of fourteen years and of sound + intellect, he may select his own guardian, subject to the + approval of the district court of the county where his parents, + or either of them resides; or, if such minor is living separate + and apart from his parents, the district court of the county + where he resides has jurisdiction. [§3435.]</p> + + <div class="sidenote"> + Powers. + </div> + + <p>Guardians of the persons of minors have the same power and + control over them that parents would have if living. + [§3440.]</p> + + <div class="sidenote"> + Duties. + </div> + + <p>Guardians of the property of minors must prosecute and defend + for their wards. They must also in other respects manage their + interests under the direction of the court. They may thus lease + their lands or loan their money during their minority, and may do + all other acts which the court may deem for the benefit of the + ward. [§3441.] All power of the guardian over the estate of + his ward is derived from the appointment of the court, but an + appointment as guardian will not authorize a sale of property, + nor an investment or disposal of money belonging to the ward, + without a special order of the court. All expenses for the + education and maintenance of the ward must be kept within the + income of his estate. If this should not be sufficient the + principal may be resorted to, but not without an order of the + court. All transactions between guardian and ward, where the + former has secured an apparent advantage, by way of gift, or + contract or settlement, will be presumed to have been the result + of undue influence, and will be set aside by a court of equity, + unless it can be shown that they were made in good faith and for + a fair and valuable consideration.</p> + + <div class="sidenote"> + Property in state. + </div> + + <p>The foreign guardian of any non-resident minor, may be + appointed the guardian in this state of such minor, by the + district court of the county wherein he has any property, for the + purpose of selling or otherwise controlling that and all other + property of such minor within the state, unless a guardian has + previously been appointed under the preceding section. The + foreign guardian of any non-resident idiot, lunatic or person of + unsound mind may be appointed the guardian of such ward by the + district court in like manner and with like effect in all cases + where the foreign guardian of a non-resident minor could be + appointed the guardian of such minor in this state. Such guardian + shall have the same powers and be subject to the same liabilities + as guardians of resident minors. [§3457.]</p> + + <div class="sidenote"> + Guardians of drunkards, spendthrifts and lunatics. + </div> + + <p>When a petition is presented to the district court, verified + by affidavit, that any inhabitant of the county is:</p> + + <ol> + <li>An idiot, lunatic, or person of unsound mind;</li> + + <li>An habitual drunkard incapable of managing his + affairs;</li> + + <li>A spendthrift who is squandering his property, and the + allegations of the petition have been satisfactorily proved + upon the trial, such court may appoint a guardian of the + property of any such person, who shall be the guardian of the + minor children of his ward, unless the court otherwise orders. + Such court may also appoint the guardian of the property of an + habitual drunkard as the guardian of his person. If the person + adjudged to be an habitual drunkard has no property, the court + may appoint a guardian of his person. [§3463 Sup.]</li> + </ol> + + <div class="sidenote"> + Order for restraint of drunkard. + </div> + + <p>The district court or any judge thereof, may, from time to + time, enter such orders as may be necessary, authorizing the + guardian of the person of such habitual drunkard to confine and + restrain him in such manner and in such place within the state as + may, by the court or judge, be considered best for the purpose of + preventing such drunkard from using intoxicating liquors, and as + may tend to his reformation. [§3468a Sup.] 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. "Although the mind of an + individual may be to some extent impaired by age or disease, + still, if he is capable of transacting his ordinary business, if + he understands the nature of the business in which he is engaged + and the effect of what he is doing and can exercise his will with + reference thereto, his acts will be valid," and he will not be + adjudged to be of unsound mind and incapable of managing his + business affairs.</p> + + <div class="sidenote"> + Real estate sold. Allowance to family. + </div> + + <p>Whenever the sale of the real estate of such ward is necessary + for his support or the support of his family or the payment of + his debts, or will be for the interest of his estate or children, + the guardian may sell the same under like proceedings as required + by law to authorize the sale of real estate by the guardian of a + minor. The court shall, if necessary, set off to the wife and + children under fifteen years of age, of the insane person or to + either sufficient of his property of such kind as it shall deem + appropriate to support them for twelve months from the time he + was adjudged insane. [§3467.]</p> + + <div class="sidenote"> + Custody + </div> + + <p>The priority of claim to the custody of any insane person, + habitual drunkard, or spendthrift aforesaid, shall be:</p> + + <ol> + <li>The legally appointed guardian.</li> + + <li>The husband or wife.</li> + + <li>The parents.</li> + + <li>The children. [§3470.]</li> + </ol> + <hr style="width: 65%;"> + <a name="CHAPTER_VI"></a> + + <h2>CHAPTER VI.</h2><br> + + <center> + APPRENTICING AND ADOPTION OF CHILDREN. + </center> + + <div class="sidenote"> + Minors. + </div> + + <p>Any minor child may be bound to service until the attainment + of the age of legal majority as hereinafter described. + [§3471.]</p> + + <div class="sidenote"> + Indenture. + </div> + + <p>Such binding must be by written indenture, specifying the age + of the minor and the terms of agreement. If the minor is more + than twelve years of age and not a pauper, the indenture must be + signed by him of his own free will. [§3472.]</p> + + <div class="sidenote"> + Consent of parent or guardian. + </div> + + <p>A written consent must be appended to or endorsed upon such + agreement, and signed by one of the following persons, + to-wit:</p> + + <ol> + <li>By the father of the minor; but if he is dead or has + abandoned his family, or is for any cause incapacitated from + giving his assent, then</li> + + <li>By the mother; and if she be dead or unable, or + incapacitated for giving such assent, then,</li> + + <li>By the guardian; and if there be no guardian, then by the + clerk of the district court. [§3473.]</li> + </ol> + + <div class="sidenote"> + Natural guardian removed. + </div> + + <p>Upon complaint being made to the district court of the proper + county, verified by affidavit, that the father or mother of a + minor child is from habitual intemperance and vicious and brutal + conduct, or from vicious, brutal and criminal conduct toward said + minor child, an unsuitable person to retain the guardianship and + control the education of such child, the court may, if it find + the allegations in the complaint manifestly true, appoint a + proper guardian for the child, and may if expedient, also direct + that said child be bound as an apprentice to some suitable person + until he attains his majority. But nothing herein shall be so + construed as to take such minor child if the mother be a proper + guardian. [§3492.]</p> + + <p>The same proceedings may take place and a like order be made, + when the mother, who for any cause became the guardian of her + minor child, is in like manner found to be manifestly an improper + person to retain such guardianship. [§3493.]</p> + + <div class="sidenote"> + Schooling and treatment of minors. + </div> + + <p>The master shall send said minor child, after the same be six + years old, to school at least four months in each year, if there + be a school in the district, and at all times the master shall + clothe the minor in a comfortable and becoming manner. + [§3497.]</p> + + <div class="sidenote"> + Adoption of children. Who may adopt. + </div> + + <p>Any person competent to make a will is authorized in manner + hereinafter set forth, to adopt as his own the minor child of + another, conferring thereby upon such child all the rights, + privileges and responsibilities which would pertain to the child + if born to the person adopting, in lawful wedlock. + [§3498.]</p> + + <div class="sidenote"> + Consent of parents or officer. + </div> + + <p>In order thereto, the consent of both parents if living and + not divorced or separated, and if divorced or separated, or, if + unmarried, the consent of the parent lawfully having the care and + providing for the wants of the child, or if either parent is + dead, then the consent of the survivor, or if both parents be + dead, or the child shall have been and remain abandoned by them, + then the consent of the mayor of the city where the child is + living, or if not in a city, then the clerk of the district court + of the county where the child is living, shall be given to such + adoption, by an instrument in writing signed by the parties or + party consenting, and stating the names of the parents, if known, + the name of the child, if known, the name of the person adopting + such child, and the residence of all, if known, and declaring the + name by which such child is hereafter to be called and known, and + stating also that such child is to be given to the person + adopting, for the purpose of adoption as his own child. + [§3499]</p> + + <div class="sidenote"> + Instrument acknowledged and recorded. + </div> + + <p>Such instrument in writing shall be also signed by the person + adopting and shall be acknowledged by all parties thereto in the + same manner as deeds affecting real estate are required to be + acknowledged; and shall be recorded in the recorder's office in + the county where the person adopting resides, and shall be + indexed with the name of the parents by adoption as grantors and + the child as grantee, in its original name if stated in the + instrument, [§3500.] A strict compliance in every particular + with the provisions of the statutes is essential to constitute a + legal adoption and to confer upon the adopted child rights of + inheritance. If a minor child has a guardian his consent must be + obtained before the child can be legally adopted.</p> + + <div class="sidenote"> + Effect. + </div> + + <p>Upon the execution, acknowledgment and filing for record of + such instrument, the rights, duties and relations between the + parent and child by adoption, shall, thereafter, in all respects, + including the right of inheritance, be the same that exists by + law between parent and child by lawful birth. [§3501]. The + right of a child by adoption to inherit from the parents by + adoption, depends upon a strict compliance with the requirements + of the law in every particular, including the acknowledgment and + recording of the articles of adoption. It is also essential that + the instrument shall be filed for record before the death of the + adopted parent and while the child is a minor. A child by + adoption does not lose the right to inherit from his natural + parents, but is entitled to all rights of inheritance from both + natural and adopted parents.</p> + + <div class="sidenote"> + Maltreatment. + </div> + + <p>In case of maltreatment committed or allowed by the adopted + parent, or palpable neglect of duty on his part, toward such + child, the custody thereof may be taken from him and entrusted to + another at his expense, if so ordered by the district court of + the county where the parent resides; or the court may, on showing + of the facts, require from the adopted parent, bond with + security, in a sum to be fixed by him, the county being the + obligee, and for the benefit of the child, conditioned for the + proper treatment and performance of duty towards the child on the + part of the parent; but no action of the court in the premises + shall affect or diminish the acquired right of inheritance on the + part of the child, to the extent of such right in a child of + natural birth. [§3502.]</p> + + <div class="sidenote"> + Home for the friendless Powers. + </div> + + <p>Any home for the friendless incorporated under the laws of + this state, shall have authority to receive, control and dispose + of minor children, under the following provisions. In case of the + death or legal incapacity of the father, or in case of his + abandoning or neglecting to provide for his children, the mother + shall be considered their legal guardian for the purpose of + making surrender of them to the charge and custody of such + corporation; and in all cases where the person or persons legally + authorized to act as the guardian or guardians of any child are + not known, the mayor of the town or city where such home is + located, may, in his discretion, surrender such child to said + home. [§3503.]</p> + + <div class="sidenote"> + Surrender of child. + </div> + + <p>In case it shall be shown to any judge of a court of record, + or to the mayor, or to any justice of the peace, within such city + or town, that the father of any child is dead, or has abandoned + his family, or is an habitual drunkard, or imprisoned for crime, + and the mother of such child is an habitual drunkard or is in + prison for crime, or the inmate of a house of ill-fame, or is + dead or has abandoned her family, or that the parents of any + child have abandoned or neglected to provide for it, then such + judge, mayor, or justice of the peace may, if he thinks the + welfare of the child requires it, surrender such child to said + home. [§3504]</p> + + <div class="sidenote"> + Home becomes guardian. + </div> + + <p>When a child has been surrendered to any home for the + friendless according to the provisions of these sections, such + home becomes the legal guardian of such child, and may exercise + the rights and authority of parents over such children and may + apprentice or provide for the adoption of the same. + [§3505.]</p> + <hr style="width: 65%;"> + <a name="CHAPTER_VII"></a> + + <h2>CHAPTER VII.</h2><br> + + <center> + WILLS AND LETTERS OF ADMINISTRATION. + </center> + + <div class="sidenote"> + Who may make wills. + </div> + + <p>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. [§3522.] 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. If he is of weak mind and it appears + that he was imposed upon or unduly influenced, such facts will + invalidate the will. <span class="sidenote">Of what + property</span> A testator having testamentary capacity may + dispose of his property in any manner, and to any person he may + choose, and may deprive his heirs of any share in his estate, + without any explanation or any express declaration of + disinheritance. The fact that a will is unjust and unreasonable, + in the absence of proof of undue influence, or insufficient + capacity, will not render the will void.</p> + + <div class="sidenote"> + Subsequent property. + </div> + + <p>Property to be subsequently acquired may be devised when the + intention is clear and explicit. [§3523.] If the intention + to convey property acquired after the execution of the will is + apparent or may be inferred from a fair construction of the + language used, it will be sufficient, although the intention may + not be directly expressed.</p> + + <div class="sidenote"> + Verbal wills. + </div> + + <p>Personal property to the value of three hundred dollars may be + bequeathed by a verbal will, if witnessed by two competent + witnesses. [§3524.]</p> + + <div class="sidenote"> + Soldier or mariner. + </div> + + <p>A soldier in actual service, or a mariner at sea, may dispose + of all his personal estate by a will so made and witnessed. + [§3525.]</p> + + <div class="sidenote"> + In writing. Witnessed. Signed. + </div> + + <p>All other wills, to be valid, must be in writing, witnessed by + two competent witnesses and signed by the testator, or by some + other person in his presence and by his express direction. + [§3526.] It is necessary that the witnesses shall subscribe + the will, but not that they shall have any knowledge of its + contents, nor that they shall see the testator sign it. It is + sufficient if the signature is adopted or acknowledged in their + presence. If a will is made with the intention of disposing of + real property it must be executed according to the requirements + of the laws of the state where the real property is situated.</p> + + <div class="sidenote"> + Interest of witness. + </div> + + <p>No subscribing witness to any will can derive any benefit + therefrom, unless there be two disinterested and competent + witnesses to the same. [§3527.] But if, without a will, he + would be entitled to any portion of the testator's estate, he may + still receive such portion to the extent in value of the amount + devised. [§3528.]</p> + + <div class="sidenote"> + Revocation. + </div> + + <p>Wills can be revoked in whole or in part, only by being + canceled or destroyed by the act or direction of the testator + with the intention of so revoking them, or by the execution of + subsequent wills. [§3529.] The birth of a child after the + execution of a will but before the death of the testator, + operates as a revocation of the will, and the birth and + recognition of an illegitimate child has the same effect. + Declarations of the testator to the effect that he intended to + revoke the will, will not be sufficient to prove a + cancellation.</p> + + <div class="sidenote"> + Cancellation. + </div> + + <p>When done by cancellation, the revocation must be witnessed in + the same manner as the making of a new will. [§3530.]</p> + + <div class="sidenote"> + Executors. + </div> + + <p>If no executors are named in the will, one or more may be + appointed to carry it into effect. [§3532.]</p> + + <div class="sidenote"> + Posthumous children. + </div> + + <p>Posthumous children unprovided for by the father's will, shall + inherit the same interest as though no will had been made. + [§3534.]</p> + + <div class="sidenote"> + Heirs of a devisee. + </div> + + <p>If a devisee die before the testator, his heirs shall inherit + the amount so devised to him unless from the terms of the will a + contrary intent is manifest. [§3537.] The word heir in this + section does not include the widow of the testator, and she + cannot inherit from a child to whom property has been devised by + his father, but who has died before the father.</p> + + <div class="sidenote"> + Married women. + </div> + + <p>A married woman may act as executor independent of her + husband. [§3545.]</p> + + <div class="sidenote"> + Minors. + </div> + + <p>If a minor under eighteen years of age is appointed executor, + there is a temporary vacancy as to him until he reaches that age. + [§3546.]</p> + + <div class="sidenote"> + Administration. Who entitled. Order. + </div> + + <p>In other cases where an executor is not appointed by will, + administration shall be granted:</p> + + <ol> + <li>To the wife of the deceased;</li> + + <li>To his next of kin;</li> + + <li>To his creditors;</li> + + <li>To any other person whom the court may select. + [§3555.]</li> + </ol> + + <div class="sidenote"> + Classes united. + </div> + + <p>Individuals belonging to the same or different classes, may be + united as administrators whenever such course is deemed + expedient. [§3556.]</p> + + <div class="sidenote"> + Time allowed. + </div> + + <p>To each of the above classes in succession a period of twenty + days, commencing with the burial of the deceased, is allowed + within which to apply for administration upon the estate. + [§3557.]</p> + <hr style="width: 65%;"> + <a name="CHAPTER_VIII"></a> + + <h2>CHAPTER VIII.</h2><br> + + <center> + SETTLEMENT OF THE ESTATE—DESCENT AND DISTRIBUTION OF + PROPERTY. + </center> + + <div class="sidenote"> + Exempt personal property. + </div> + + <p>When the deceased leaves a widow, all the personal property + which, in his hands as head of the family, would be exempt from + execution, after being inventoried and appraised, shall be set + apart to her as her property in her own right, and be exempt in + her hands as in the hands of the decedent. [§3575.] This + provision secures an advantage to the wife which does not exist + in favor of the husband. Upon the death of the wife all personal + property belonging to her, whether exempt or not, passes to her + administrator to be distributed by him among her heirs. A widow + is not entitled to pension money, although the same was exempt in + the hands of her husband, the exemption being for the benefit of + the pensioner as such, and not as head of a family.</p> + + <div class="sidenote"> + Life insurance. + </div> + + <p>The avails of any life insurance or any other sum of money + made payable by any mutual aid or benevolent society upon the + death of a member of such society, are not subject to the debts + of the deceased, except by special contract or arrangement, but + shall in other respects, be disposed of like other property left + by the deceased. [§3576.] 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. [§1756, + Sup.] The contract between the assured and the insurance company, + cannot be changed in any particular without the consent of the + company, and a testator cannot, by will, change the beneficiary + named in the policy unless it is expressly so provided in the + contract. Where a policy is made payable to the assured or his + legal representatives, the proceeds of the policy will pass to + the administrator of his estate, and will be paid to the wife and + children, but no part can be distributed to other heirs. If the + assured leaves a wife or husband and no children, the entire + proceeds of the policy will go to the wife or husband, and after + they have passed into the hands of the beneficiary, they will not + be subject to execution for the payment of his or her debts, + provided they do not exceed the sum of five thousand dollars.</p> + + <p>A wife is not her husband's "legal heir" and the entire + proceeds of a policy or certificate of insurance made payable to + the assured or his "legal heirs" will go to the children of the + deceased.</p> + + <div class="sidenote"> + Allowance to widow and children. + </div> + + <p>The court shall if necessary, set off to the widow and + children under fifteen years of age, of the decedent, or to + either, sufficient of the property of such kind as it shall deem + appropriate to support them for twelve months from the time of + his death. [§3579.] The allowance to the widow takes + priority over all other claims against the estate, and should be + paid immediately. If the widow and children have no other means + of support the allowance may be made though the estate is + insolvent. It is no part of the dower interest, but is a separate + and distinct right which may be made in addition to dower, or + even in cases where by contract made before marriage, all rights + to dower and inheritance have been relinquished. Real estate may + be sold if necessary, where the personal property is not + sufficient to provide for the allowance to the widow and + children, and the widow may claim the allowance although there + are no children, and she may have property of her own, if the + income of such property is not sufficient for her support.</p> + + <div class="sidenote"> + Expenses of funeral. + </div> + + <p>As soon as the executors are possessed of sufficient means, + over and above the expenses of administration, they shall pay off + the charges of the last sickness and funeral of deceased. + [§3622.]</p> + + <div class="sidenote"> + Allowance. + </div> + + <p>They shall, in the next place, pay any allowance which may be + made by the court for the maintenance of the widow and minor + children. [§3623.]</p> + + <p>After the funeral expenses and the allowance to the widow and + children have been paid, the claims against the estate will be + discharged in the order provided by law, after which, the balance + of the property, devised by will after all expenses of + administration have been paid, will be distributed to the + different legatees.</p> + + <div class="sidenote"> + Descent and distribution. Personal property. + </div> + + <p>The personal property of the deceased, not necessary for the + payment of debts, nor otherwise disposed of as hereinbefore + provided, shall be distributed to the same persons and in the + same proportions as though it were real estate. [§3640.] A + husband cannot, by will, deprive his wife of her share in his + personal estate, after his death, but he may dispose of it during + his lifetime in any manner he may choose.</p> + + <div class="sidenote"> + Payment. + </div> + + <p>The distributive shares shall be paid over as fast as the + executors can properly do so. [§3641.]</p> + + <div class="sidenote"> + In kind. + </div> + + <p>The property itself shall be distributed in kind whenever that + can be done satisfactorily and equitably. In other cases the + court may direct the property to be sold, and the proceeds to be + distributed. [§3641.]</p> + + <div class="sidenote"> + Partial distribution. + </div> + + <p>When the circumstances of the family require it, the court, in + addition to what is hereinbefore set apart for their use, may + direct a partial distribution of the money or effects on hand. + [§3643.]</p> + + <div class="sidenote"> + Share of husband or wife. + </div> + + <p>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. + The estates of dower and curtesy are hereby abolished. + [§3644] <span class="sidenote">Dower and curtesy.</span> + While the estate of dower is abolished by statute, and a wife + takes her distributive share of the property in its stead, yet + this distributive share is still commonly designated by the term + "dower." The dower interest of the wife is not subject to the + debts of her husband. A wife may release her right of dower in + real property by joining in a joint deed with her husband, + although the deed may contain no express relinquishment of dower. + 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. Where the provisions of a will + gives the wife a certain interest in the estate, she may always + elect whether she will take her dower interest or under the + will.</p> + + <div class="sidenote"> + Homestead. + </div> + + <p>The distributive share of the widow shall be so set off as to + include the ordinary dwelling-house given by law to the + homestead, or so much thereof as will be equal to the share + allotted to her by the last section, unless she prefers a + different arrangement. But no different arrangement shall be + permitted where it would have the effect of prejudicing the + rights of creditors. [§3645.] If the distributive share of + either husband or wife is set out to the survivor from the + homestead, it will still retain its homestead character, and will + be exempt from execution for the payment of debts.</p> + + <div class="sidenote"> + Widow of alien. + </div> + + <p>The widow of a non-resident alien shall be entitled to the + same rights in the property of her husband, as a resident, except + as against a purchaser from the decedent. [§3646.] The term + "non-resident alien" does not refer to one who resides out of the + United States, but to non-residents of the state, who may reside + in other states; the purpose of the statute being to encourage + the purchase of lands within the state from non-resident owners, + and to protect purchasers of such real estate from claims for + dower or distributive share therein.</p> + + <div class="sidenote"> + How set off. + </div> + + <p>The share thus allotted to her may be set off by the mutual + consent of all parties interested, when such consent can be + obtained, or it may be set off by referees appointed by the + court. [§3647.]</p> + + <div class="sidenote"> + Application + </div> + + <p>The application for such measurement by referees, may be made + any time after twenty days and within ten years after the death + of the husband, and must specify the particular tracts of land in + which she claims her share, and ask the appointment of referees. + [§3648.]</p> + + <div class="sidenote"> + Widow's share not affected by will. + </div> + + <p>The widow's share cannot be affected by any will of her + husband, unless she consents thereto within six months after + notice to her of the provisions of the will by the other parties + interested in the estate, which consent shall be entered on the + proper records of the district court. [§3656.] This + provision applies equally to the husband's rights under the will + of the wife, and it applies to wills made before marriage, as + well as to those executed after marriage. Where there is no + express provision in the will that a devise to the wife is in + lieu of dower, she will take her distributive share of the estate + in addition to the property devised to her by will, unless the + allowance of dower would be inconsistent with other provisions of + the will. The devise of a life estate to a wife will not defeat + her right to her distributive share in the real estate owned by + the husband at the time of his death.</p> + + <div class="sidenote"> + Descent. To children. + </div> + + <p>Subject to the rights and charges hereinbefore contemplated, + the remaining estate of which the decedent died, shall, in the + absence of other arrangements by will, descend in equal shares to + his children. [§3657.]</p> + + <div class="sidenote"> + Share of deceased child. + </div> + + <p>If any one of his children be dead, the heirs of such child + shall inherit his share in accordance with the rules herein + prescribed in the same manner as though such child had outlived + his parents. [§3658.] The mother of a child which dies while + both of its parents are living cannot, upon the death of its + father, claim any share in his estate, as heir of such child.</p> + + <div class="sidenote"> + Wife and parents. + </div> + + <p>If the intestate leave no issue, the one-half of his estate + shall go to his parents and the other half to his wife; if he + leaves no wife, the portion which would have gone to her, shall + go to his parents, [§3659.] The one-third which the wife + takes as her distributive share is all that may be held exempt + from debts. The additional share of the estate which she takes in + case there are no children, is subject to claims by creditors of + the husband.</p> + + <div class="sidenote"> + Surviving parents. + </div> + + <p>If one of his parents be dead, the portion which would have + gone to such deceased parent, shall go to the surviving parent, + including the portion which would have gone to the intestate's + wife had she been living. [§3660.]</p> + + <div class="sidenote"> + Heirs of parents. + </div> + + <p>If both parents be dead, then the portion which would have + fallen to their share, by the above rules shall be disposed of in + the same manner as if they had outlived the intestate and died in + the possession and ownership of the portion thus falling to their + share, and so on through ascending ancestors and their issue. + [§3661.]</p> + + <div class="sidenote"> + Wife and her heirs. + </div> + + <p>If heirs are not thus found, the portion uninherited shall go + to the wife of the intestate, or to her heirs if dead, according + to like rules; and if he has had more than one wife who either + died or survived in lawful wedlock, it shall be equally divided + between the one who is living and the heirs of those who are + dead, or between the heirs of all, if all are dead, such heirs + taking by right of representation. [§3662.]</p> + + <div class="sidenote"> + Advancement. + </div> + + <p>Property given by an intestate by way of advancement to an + heir, shall be considered part of the estate so far as regards + the division and distribution thereof, and shall be taken by such + heir, towards his share of the estate at what it would now be + worth if in the condition in which it was given to him. But if + such advancement exceeds the amount to which he would be + entitled, he cannot be required to refund any portion thereof. + [§3663.] 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.</p> + + <div class="sidenote"> + Where there are no heirs. + </div> + + <p>If there be property remaining uninherited, it shall escheat + to the state. [§3665.]</p> + + <div class="sidenote"> + Illegitimate children. Inherit from mother. + </div> + + <p>Illegitimate children inherit from the mother and the mother + from the children. [§3670.] A child born at any time during + lawful wedlock is presumed by the law to be legitimate, but where + questions of inheritance are involved, this presumption may be + overcome by proof to the contrary.</p> + + <div class="sidenote"> + Inherit from father. + </div> + + <p>They shall inherit from the father whenever the paternity is + proven during the life of the father, or they have been + recognized by him as his children, but such recognition must have + been general and notorious or else in writing. [§3671.] The + recognition in writing need not be a formal avowal. Any writing, + as by letter or otherwise, is sufficient. For the purposes of + inheritance an illegitimate child stands on exactly the same + footing as if it were legitimate after it has been recognized by + the father, and the birth and recognition of such child revoke a + will in the same manner as the birth of a legitimate child, + subsequent to the execution of the will.</p> + + <div class="sidenote"> + Father inherits from child. + </div> + + <p>Under such circumstances, if the recognition of relationship + has been mutual, the father may inherit from his illegitimate + children. [§3672.]</p> + <hr style="width: 65%;"> + <a name="CHAPTER_IX"></a> + + <h2>CHAPTER IX.</h2><br> + + <center> + HOMESTEAD AND EXEMPTIONS. + </center> + + <div class="sidenote"> + Homestead exempt. + </div> + + <p>Where there is no special declaration of the statute to the + contrary, the homestead of every family, whether owned by the + husband or wife is exempt from judicial sale, [§3163.] A + homestead right may exist in property purchased under a bond for + a deed, if payments have been made and the purchaser is in + possession. 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.</p> + + <p>The homestead right may belong to one of several tenants in + common of undivided property, or in a leasehold interest. It may + attach to portions of a building—as where rooms or floors + in a building are used for homestead purposes and the rest of the + building is not so used. Where part of a building is owned or + occupied by a family as a home, and the other part is used for a + different purpose, that part used as a home may be exempt, while + the other portion may be sold under execution. The exemption + right may be lost by the execution of a mortgage or contract + expressly making the homestead liable, in which both husband and + wife join; or it may be forfeited when the homestead is used as a + saloon or for any other purpose in violation of the prohibitory + liquor law, with the knowledge and consent of the owner, and this + is true even though such unlawful use is without the consent of + the wife of the owner. In such case it is subject to judgment + obtained because of such illegal use. [§2419.] If the + homestead is sold, the proceeds are exempt only when invested in + the purchase of another homestead, but the exemption does not + follow the proceeds out of the state, and where the homestead was + sold and the proceeds invested in a homestead in another state, + and this was afterwards sold and the proceeds again invested in a + homestead in this state, it was held that the homestead exemption + did not attach to the second homestead in Iowa. Removal from the + homestead without intention of returning will be sufficient to + forfeit the homestead right, but the length of time of absence, + in itself, will not constitute abandonment, so long as the + intention to return exists.</p> + + <div class="sidenote"> + Family defined. + </div> + + <p>A widow or widower, though without children, shall be deemed a + family while continuing to occupy the house used as such at the + time of the death of the husband or wife. [§3164.]</p> + + <div class="sidenote"> + Conveyance or incumbrance. + </div> + + <p>A conveyance or incumbrance by the owner is of no validity + unless the husband and wife, if the owner is married, concur in, + and sign the joint instrument. [§3165.] Any conveyance or + contract, such as a mortgage, lease, assignment of contract of + purchase, or any act in any manner affecting the title or right + of occupancy of the homestead by either party, will be absolutely + void, unless concurred in by the other. If the consent of the + wife is fraudulently obtained by the husband, the conveyance or + incumbrance will be valid, unless it appears that the purchaser + or mortgagee had knowledge of the fraud. A mortgage given for the + purchase money will be valid though given alone by the party + taking the legal title.</p> + + <div class="sidenote"> + Liable for taxes. + </div> + + <p>The homestead is liable for taxes accruing thereon, and if + platted as hereinafter directed, is liable only for such taxes + and subject to mechanics' liens for work, labor, or material, + done or furnished exclusively for the improvement of the same, + and the whole or a sufficient portion thereof may be sold to pay + the same. [§3166.] All the taxes against the owner of the + homestead become liens thereon, unless it is platted as directed + by statute.</p> + + <div class="sidenote"> + Liable for debts. + </div> + + <p>The homestead may be sold on execution for debts contracted + prior to the purchase thereof, but it shall not in such case be + sold except to supply the deficiency remaining after exhausting + the other property of the debtor liable to execution. + [§3167.] Debts contracted after the acquisition of the + property, but before it has acquired the homestead character by + actual occupancy, may be enforced against the property. A + judgment upon a debt contracted prior to the purchase of the + homestead, although such judgment is not rendered until after the + property has acquired the homestead character, is a lien upon the + homestead.</p> + + <div class="sidenote"> + Debts created by written contract. + </div> + + <p>The homestead may be sold for debts created by written + contract, executed by the persons having the power to convey and + expressly stipulating that the homestead is liable therefor, but + it shall not in such case be sold except to supply the deficiency + remaining after exhausting the other property pledged for the + payment of the debt in the same written contract. [§3168.] + Any written contract other than a mortgage or other conveyance, + will be sufficient to render the homestead liable for debts, + provided it contains the necessary stipulations, and is signed by + the proper parties.</p> + + <div class="sidenote"> + What constitutes. + </div> + + <p>The homestead must embrace the house used as a home by the + owner thereof, and if he has two or more houses thus used by him + at different times and places, he may select which he will retain + as his homestead. [§3159.] The husband may select his + homestead and make the same his home without the consent of his + wife, and the absence of the wife will not affect its homestead + character. The fact that the husband is the legal head of the + family invests him with the power of establishing his home + wherever he may choose, with or without the assent of his wife. + Use is essential to give property a homestead character, and an + intention to occupy is not sufficient in the absence of actual + residence.</p> + + <div class="sidenote"> + Embraces what. + </div> + + <p>It may contain one or more lots or tracts of land with the + buildings thereon and other appurtenances, subject to the + limitations contained in the next section, but must in no case + embrace different lots or tracts, unless they are contiguous, or + unless they are habitually and in good faith used as a part of + the same homestead. [§3170.]</p> + + <div class="sidenote"> + Extent. + </div> + + <p>If within a town plat it must not exceed one-half an acre in + extent, and if not within a town plat, it must not embrace in the + aggregate more than forty acres. But if, when thus limited, in + either case, its value is less than five hundred dollars, it may + be enlarged until it reaches that amount. [§3171.]</p> + + <div class="sidenote"> + Dwelling appurtenances. + </div> + + <p>It must not embrace more than one dwelling house, or any other + buildings except as such are properly appurtenant to the + homestead; but a shop or other building situated thereon, and + really used and occupied by the owner in the prosecution of his + own ordinary business, and not exceeding three hundred dollars in + value, may be deemed appurtenant to such homestead. + [§3172.]</p> + + <div class="sidenote"> + Selecting. Platting. + </div> + + <p>The owner or the husband or wife, may select the homestead and + cause it to be marked out, platted, and recorded as provided in + the next section. A failure in this respect does not leave the + homestead liable, but the officer having an execution against the + property of such defendant, may cause the homestead to be marked + off, platted and recorded and may add the expense thence arising + to the amount embraced in the execution. [§3173.]</p> + + <div class="sidenote"> + Description. Recording. + </div> + + <p>The homestead shall be marked off by fixed and visible + monuments, and in giving the description thereof, the direction + and distance of the starting point from some corner of the + dwelling-house shall be stated. The description and plat shall + then be recorded by the recorder in a book to be called the + "homestead book," which shall be provided with a proper index. + [§3174.]</p> + + <div class="sidenote"> + Changes. + </div> + + <p>The owner may from time to time change the limits of the + homestead by changing the metes and bounds, as well as the record + of the plat and description, or may change it entirely, but such + changes shall not prejudice conveyances or liens made or created + previously thereto, and no change of the entire homestead made + without the concurrence of the husband or wife, shall affect his + or her right or those of the children. [§3175.]</p> + + <div class="sidenote"> + New homestead exempt. + </div> + + <p>The new homestead, to the extent in value of the old, is + exempt from execution in all cases where the old or former + homestead would have been exempt, but in no other, nor in any + greater degree. [§3176.]</p> + + <div class="sidenote"> + Survivor to occupy. + </div> + + <p>Upon the death of either husband or wife, the survivor may + continue to possess and occupy the whole homestead until it is + disposed of according to law. [§3182.] 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.</p> + + <div class="sidenote"> + Election to retain. Descent. Exemption. + </div> + + <p>The setting off of the distributive share of the husband or + wife in the real estate of the deceased, shall be such a disposal + of the homestead as is contemplated in the preceding section. But + the survivor may elect to retain the homestead for life in lieu + of such share in the real estate of the deceased; but if there be + no such survivor, the homestead descends to the issue of either + husband or wife according to the rules of descent, unless + otherwise directed by will, and is to be held by such issue + exempt from any antecedent debts of their parents or their own. + [§3183.]</p> + + <div class="sidenote"> + When sold. + </div> + + <p>If there is no such survivor or issue the homestead is liable + to be sold for the payment of any debts to which it might at that + time be subjected, if it had never been held as a homestead. + [§3184.]</p> + + <div class="sidenote"> + Devise. + </div> + + <p>Subject to the rights of the surviving husband or wife, as + declared by law, the homestead may be devised like other real + estate of the testator. [§3185.] The homestead will remain + exempt in the hands of the heirs because of the homestead right + of the ancestors, although the property is not occupied as a + homestead by such heirs.</p> + + <div class="sidenote"> + Exemptions. To head of family. + </div> + + <p>If a debtor is a resident of this state, and is the head of a + family, he may hold exempt from execution the following property: + All wearing apparel of himself and family kept for actual use and + suitable to their condition, and the trunks or other receptacles + necessary to contain the same; one musket or rifle and shot-gun; + all private libraries, family bibles, portraits, pictures, + musical instruments, and paintings, not kept for the purpose of + sale; a seat or pew occupied by the debtor or his family in any + house of public worship; an interest in a public or private + burying ground, not exceeding one acre for any defendant; two + cows and calf; one horse, unless a horse is exempt as hereinafter + provided; fifty sheep and the wool therefrom and the materials + manufactured from such wool; six stands of bees; five hogs, and + all pigs under six months; the necessary food for all animals + exempt from execution, for six months; all flax raised by the + defendant on not exceeding one acre of ground and the + manufactures therefrom; one bedstead and the necessary bedding + for every two in the family; all cloth manufactured by the + defendant, not exceeding one hundred yards in quantity; household + and kitchen furniture, not exceeding two hundred dollars in + value; all spinning-wheels and looms, one sewing machine and + other instruments of domestic labor kept for actual use; the + necessary provisions and fuel for the use of the family for six + months; the proper tools, instruments or books of the debtor, if + a farmer, mechanic, surveyor, clergyman, lawyer, physician, + teacher or professor; the horse or the team consisting of not + more than two horses or mules, or two yoke of cattle, and the + wagon or other vehicle with the proper harness or tackle, by the + use of which the debtor, if a physician, public officer, farmer, + teamster, or other laborer habitually earns his living; and to + the debtor, if a printer, there shall also be exempt a printing + press and a newspaper office connected therewith, not to exceed + in all the value of twelve hundred dollars. Any person entitled + to any of the exemptions mentioned in this section does not waive + his rights thereto by failing to designate or select such exempt + property or by failing to object to a levy thereon, unless + failing or refusing so to do when required to make such + designation or selection by the officers about to levy. + [§4297.] The husband and not the wife is recognized by law + as the "head of the family," but upon the death of the husband + the wife becomes the head of the family and as such is entitled + to these exemptions.</p> + + <div class="sidenote"> + Life Insurance. + </div> + + <p>All life insurance is exempt from the debts of the assured and + from those of his widow contracted prior to his death, provided + such exemption does not exceed the sum of five thousand dollars. + [§1756 Sup.]</p> + + <div class="sidenote"> + Family defined. + </div> + + <p>The word "family," as used in section 4297, does not include + strangers or boarders lodging with the family. [§4298.]</p> + + <div class="sidenote"> + Perpetual earnings. + </div> + + <p>The earnings of such debtor for his personal services, or + those of his family, at any time within ninety days next + preceding the levy, are also exempt from execution and + attachment. [§4299.]</p> + + <div class="sidenote"> + Unmarried persons. Non-residents. + </div> + + <p>There shall be exempt to an unmarried man not the head of a + family, and to non-residents their ordinary wearing apparel and + trunk necessary to contain the same. [§4300.]</p> + + <div class="sidenote"> + Persons starting to leave the state. + </div> + + <p>When the debtor, if the head of a family, has started to leave + this state, he shall have exempt only the ordinary wearing + apparel of himself and family, and such other property, in + addition, as he may select, in all not exceeding seventy-five + dollars in value; which property shall be selected by the debtor + and appraised; but any person coming into this state with the + intention of remaining shall be considered a resident. + [§4801.]</p> + + <div class="sidenote"> + Purchase money. + </div> + + <p>None of the exemptions prescribed in this chapter shall be + allowed against an execution issued for the purchase money of + property claimed to be exempt, and on which such execution is + levied. [§4302.]</p> + + <div class="sidenote"> + Absconding debtor. + </div> + + <p>Where a debtor absconds and leaves his family, such property + shall be exempt in the hands of the wife and children, or either + of them. [§4303.]</p> + + <div class="sidenote"> + Sewing machine. + </div> + + <p>If the debtor is a seamstress, one sewing-machine shall be + exempt from execution and attachment. [§4304.]</p> + + <div class="sidenote"> + Pension money. + </div> + + <p>All money received by any person, resident of the state, as a + pension from the United States government; whether the same shall + be in the actual possession of such pensioner, or deposited, + loaned, or invested by him, shall be exempt from execution or + attachment, or seizure by or under any legal process whatever, + whether such pensioner shall be the head of a family or not. + [§4305.]</p> + + <div class="sidenote"> + Homestead. + </div> + + <p>The homestead of every such pensioner, whether the head of a + family or not, purchased and paid for with any such pension + money, or the proceeds or accumulations of such pension money, + shall also be exempt as is now provided by law of this state in + relation to homesteads; and such exemption shall also apply to + debts of such pensioner contracted prior to the purchase of such + homestead. [§4306.]</p> + + <div class="sidenote"> + Damages. + </div> + + <p>Where a wrongful act produces death, and the deceased leaves a + husband, wife, child or parent, the damages shall not be liable + for the payment of debts. [§3731.]</p> + <hr style="width: 65%;"> + <a name="CHAPTER_X"></a> + + <h2>CHAPTER X.</h2><br> + + <center> + CRIMINAL LAW-ILLEGITIMATE CHILDREN. + </center> + + <div class="sidenote"> + Rape. + </div> + + <p>If any person ravish or carnally know any female of the age of + thirteen years or more, by force and against her will, or + carnally know and abuse any female child under the age of + thirteen years, he shall be punished by imprisonment in the + penitentiary for life or any term of years. [§5160.]</p> + + <div class="sidenote"> + Intent to commit rape. + </div> + + <p>If any person assault a female with intent to commit a rape he + shall be punished by imprisonment in the penitentiary not + exceeding twenty years. [§5172.]</p> + + <div class="sidenote"> + Compelling to marry. + </div> + + <p>If any person take any woman unlawfully and against her will, + and by force, menace or duress, compel her to marry him, or to be + defiled, he shall be fined not exceeding one thousand dollars and + imprisoned in the penitentiary not exceeding ten years. + [§5161.]</p> + + <div class="sidenote"> + Carnal knowledge. + </div> + + <p>If any person have carnal knowledge of any female by + administering to her any substance, or by any other means + producing such stupor or such imbecility of mind or weakness of + body as to prevent effectual resistance, or have such carnal + knowledge of an idiot or female naturally of such imbecility of + mind or weakness of body, as to prevent effectual resistance, he + shall upon conviction, be punished as provided in the section + relating to ravishment. [§5162.]</p> + + <div class="sidenote"> + Producing miscarriage of pregnant woman. + </div> + + <p>If any person with intent to produce the miscarriage of any + pregnant woman, wilfully administer to her any drug or substance + whatever, or, with such intent, use any instrument or any means + whatever, unless such miscarriage shall be necessary to save her + life, he shall be imprisoned in the state prison for a term not + exceeding five years, and be fined in a sum not exceeding one + thousand dollars. [§5163.]</p> + + <div class="sidenote"> + Enticing female child for prostitution. + </div> + + <p>If any person take or entice away any unmarried female, under + eighteen years of age, from her father, mother, guardian, or + other person having the legal charge of her person, for the + purpose of prostitution, he shall upon conviction be punished by + imprisonment in the penitentiary for not more than three years, + or by fine of not more than one thousand dollars and imprisonment + in the county jail not more than one year. [§5164.]</p> + + <div class="sidenote"> + Enticing away child. + </div> + + <p>If any person maliciously, forcibly or fraudulently lead, + take, decoy, or entice away any child under the age of fourteen + years, with the intent to detain or conceal such child from its + parent, guardian, or any other person having the lawful charge of + such child, he shall be punished by imprisonment in the + penitentiary not more than ten years, or by a fine not exceeding + one thousand dollars or by both such fine and imprisonment. + [§5165.]</p> + + <div class="sidenote"> + Seduction. + </div> + + <p>If any person seduce and debauch any unmarried woman of + previously chaste character, he shall be punished by imprisonment + in the penitentiary not more than five years, or by fine not + exceeding one thousand dollars and imprisonment in the county + jail not exceeding one year. [§5166.]</p> + + <div class="sidenote"> + Marriage a bar. + </div> + + <p>If, before judgment upon an indictment, the defendant marry + the woman thus seduced, it is a bar to any further prosecution + for the offense. [§5167.] An offer, by the defendant, to + marry the woman, will not be a bar to a prosecution for + seduction, as nothing but actual marriage will constitute such + bar.</p> + + <div class="sidenote"> + Adultery. + </div> + + <p>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. [§5317.]</p> + + <div class="sidenote"> + Evidence in cases of rape or seduction. + </div> + + <p>The defendant in a prosecution for a rape, or for an assault + with intent to commit a rape, or for enticing or taking away an + unmarried female of previously chaste character, for the purpose + of prostitution, or aiding or assisting therein, or for seducing + or debauching any unmarried woman of previously chaste character, + cannot be convicted upon the testimony of the person injured, + unless she be corroborated by other evidence tending to connect + the defendant with the commission of the offense. [§5958, as + amended by act of the Twenty-fifth General Assembly.] The + corroboration required by this section need not be by evidence of + witnesses to the act, but may be wholly by circumstances and + facts which tend to connect the accused with the commission of + the crime.</p> + + <div class="sidenote"> + Bigamy. + </div> + + <p>If any person who has a former husband or wife living, marry + another person, or continue to cohabit with such second husband + or wife in this state, he or she, except in cases mentioned in + the following section, is guilty of bigamy, and shall be punished + by imprisonment in the penitentiary not more than five years, or + by fine not exceeding five hundred dollars and imprisonment in + the county jail not more than one year. [§5318.]</p> + + <div class="sidenote"> + Exceptions. + </div> + + <p>The provisions of the preceding section do not extend to any + person whose husband or wife has continuously remained beyond + seas, or who has voluntarily withdrawn from the other and + remained absent for the space of three years together, the party + marrying again, not knowing the other to be living within that + time; nor to any person who has been legally divorced from the + bonds of matrimony. [§5319.]</p> + + <div class="sidenote"> + Knowingly marrying husband or wife. + </div> + + <p>Every unmarried person who knowingly marries the husband or + wife of another, when such husband or wife is guilty of bigamy + thereby, shall be imprisoned in the penitentiary not exceeding + three years, or by fine of not more than three hundred dollars + and imprisonment in the county jail not exceeding one year. + [§5320.]</p> + + <div class="sidenote"> + Lewdness. + </div> + + <p>If any man or woman not being married to each other lewdly and + viciously associate and cohabit together, or if any man or woman, + married or unmarried, is guilty of gross lewdness and designedly + make an open and indecent, or obscene exposure of his or her + person, or the person of another, every such person shall be + punished by imprisonment in the county jail not exceeding six + months, or by fine not exceeding two hundred dollars. + [§5321.]</p> + + <div class="sidenote"> + Keeping house of ill-fame. + </div> + + <p>If any person keep a house of ill-fame, resorted to for the + purpose of prostitution or lewdness, such person shall be + punished by imprisonment in the penitentiary not less than six + months nor more than five years. [§5322.]</p> + + <div class="sidenote"> + Houses of ill-fame. + </div> + + <p>Houses of ill-fame kept for the purpose of prostitution and + lewdness, gambling houses, or houses where drunkenness, + quarreling, fighting or breaches of the peace are carried on or + permitted, to the disturbance of others, are nuisances, and may + be abated and punished as provided in this chapter. + [§5472.]</p> + + <div class="sidenote"> + Lease rendered void. + </div> + + <p>When the lessee of a dwelling house is convicted of keeping + the same as a house of ill-fame, the lease or contract for + letting such house is, at the option of the lessor, void, and + such lessor may thereupon have the like remedy to secure + possession as against a tenant holding over after the expiration + of his term. [§5323.]</p> + + <div class="sidenote"> + Leasing house for such purpose. + </div> + + <p>If any person let any house, knowing that the lessee intends + to use it as a place of resort for the purpose of prostitution or + lewdness, or knowingly permit such lessee to use the same for + such purpose, he shall be punished by fine not exceeding three + hundred dollars, or imprisoned in the county jail not exceeding + six months. [§5324.]</p> + + <div class="sidenote"> + Enticing to house of ill-fame. + </div> + + <p>If any person entice back into a life of shame any person who + has heretofore been guilty of the crime of prostitution, or who + shall inveigle or entice any female, before reputed virtuous, to + a house of ill-fame, or knowingly conceal or assist or abet in + concealing such female, so deluded or enticed for the purpose of + prostitution or lewdness, he shall be punished by imprisonment in + the penitentiary not less than three nor more than ten years. + [§5325.]</p> + + <div class="sidenote"> + Penalty for prostitution. + </div> + + <p>If any person, for the purpose of prostitution or lewdness + resorts to, uses, occupies or inhabits any house of ill-fame, or + place kept for such purpose, or if any person be found at any + hotel, boarding house, cigar store or other place, leading a life + of prostitution and lewdness, such person shall be punished by + imprisonment in the penitentiary not more than five years. + [§5326.]</p> + + <div class="sidenote"> + Incest. + </div> + + <p>If any person marry his father's sister, mother's sister, + father's widow, wife's mother, daughter, son's widow, sister, + son's daughter, daughter's daughter, son's son's widow, + daughter's son's widow, brother's daughter, or sister's daughter, + or, if any woman marry her father's brother, mother's brother, + mother's husband, husband's father, son, husband's son, + daughter's husband, brother, son's son, daughter's son, son's + daughter's husband, daughter's daughter's husband, brother's son, + or sister's son; or if any person, being within the degrees of + consanguinity or affinity in which marriages are prohibited by + this section, carnally know each other, they shall be deemed + guilty of incest, and shall be punished by imprisonment in the + state penitentiary for a term not exceeding ten years and not + less than one year. [§5351.]</p> + + <div class="sidenote"> + Illegitimate children. Complaint. + </div> + + <p>When any woman residing in any county in the state is + delivered of a bastard child, or is pregnant with a child, which, + if born alive, will be a bastard, complaint may be made in + writing by any person to the district court of the county where + she resides, stating that fact, and charging the proper person + with being the father thereof. [§6113.]</p> + + <div class="sidenote"> + Judgment. + </div> + + <p>If the accused be found guilty, he shall be charged with the + maintenance of the child in such sum or sums and in such manner + as the court shall direct, and with the costs of the suit. + [§6119.]</p> + + <div class="sidenote"> + Marriage of parents. + </div> + + <p>Illegitimate children become legitimate by the subsequent + marriage of their parents. [§3391.]</p> + <hr style="width: 65%;"> + <a name="CHAPTER_XI"></a> + + <h2>CHAPTER XI.</h2><br> + + <center> + MISCELLANEOUS PROVISIONS. + </center> + + <div class="sidenote"> + Action for damages under prohibitory liquor law. + </div> + + <p>Every wife, child, parent, guardian, employer or other person + who shall be injured in person or property or means of support, + by any intoxicated person, or in consequence of the intoxication + habitual or otherwise, of any person, shall have a right of + action in his or her name, against any person, who shall, by + selling intoxicating liquors, cause the intoxication of such + person, for all damages actually sustained, as well as exemplary + damages; and a married woman shall have the same right to bring + suits, prosecute and control the same, and the amount recovered, + as if a single woman, and all damages recovered by a minor under + this action, shall be paid to such minor, or his parent, + guardian, or next friend, as the court shall direct, and all + suits for damages under this section shall be by civil action in + any court having jurisdiction thereof. [§2418.] Under this + section a woman is entitled to recover for the death of her + husband, or for personal injuries to him, or to herself caused by + intoxication. She may recover damages for mental anguish, shame, + or suffering, resulting from injuries to the person, and for + injuries to, or loss of property, and means of support.</p> + + <div class="sidenote"> + Parties in action for seduction. + </div> + + <p>An unmarried female may prosecute as plaintiff, an action for + her own seduction and recover such damages as may be found in her + favor. [§3760.] In a civil action for damages it is not + necessary that an unmarried woman be of previously chaste + character to enable her to recover for loss of health, physical + suffering, etc., but without that she cannot recover for loss of + character.</p> + + <div class="sidenote"> + For injury or death of minor child. + </div> + + <p>A father, or in case of his death, or imprisonment, or + desertion of his family, the mother may prosecute as plaintiff, + an action for the expenses and actual loss of service resulting + from the injury or death of a minor child. [§3761.]</p> + + <div class="sidenote"> + Married women + </div> + + <p>A married woman may, in all cases, sue and be sued without + joining her husband with her, to the same extent as if she were + unmarried, and an attachment or judgment in such action shall be + enforced by or against her as if she were a single woman. + [§3667.]</p> + + <div class="sidenote"> + Defense. + </div> + + <p>If husband or wife are sued together, the wife may defend for + her own right; and if either neglect to defend, the other may + defend for that one also. [§3768.]</p> + + <div class="sidenote"> + When husband or wife deserts family. + </div> + + <p>When a husband has deserted his family, the wife may prosecute + or defend in his name any action which he might have prosecuted + or defended, and shall have the same powers and rights therein as + he might have had; and under like circumstances the same right + shall apply to the husband upon the desertion of the wife. + [§3769.]</p> + + <div class="sidenote"> + Evidence. Husband and wife. + </div> + + <p>Neither the husband nor wife shall in any case, be a witness + against the other, except in a criminal prosecution for a crime + committed one against the other, or in a civil action or + proceeding one against the other; but they may in all civil and + criminal cases, be witness for each other. [§4891.] In + prosecutions for adultery or bigamy the husband or wife, as the + case may be, is a competent witness against the other.</p> + + <div class="sidenote"> + Communications between husband and wife. + </div> + + <p>Neither husband nor wife can be examined in any case as to any + communication made by one to the other while married, nor shall + they after the marriage relation ceases, be permitted to reveal + in testimony any such communication made while the marriage + subsisted. [§4892.]</p> + + <div class="sidenote"> + Women eligible to office. + </div> + + <p>Women are eligible to all school offices in the state, + including those of county superintendent and school director. + [§§2828, 2829.]</p> + + <p>No person shall be disqualified for holding the office of + county recorder on account of sex. [§471.]</p> + + <div class="sidenote"> + Police matrons. + </div> + + <p>Mayors of all cities having a population of twenty-five + thousand or more, are authorized, by act of the Twenty-fifth + General Assembly to appoint police matrons to take charge of all + women and children confined at police stations. They are to + search the persons of such women and children, accompany them to + court, and "give them such comfort as may be in their power." No + woman is eligible to this office who is under thirty years of + age. She must be of good moral character, and sound physical + health. Her application must be endorsed by at least ten women of + good standing and residents of the city in which such appointment + is made. When appointed she shall hold office until removed by + death, resignation or discharge, but she can be dismissed only + after charges have been made against her conduct and such charges + have been investigated. She has the right to enter work houses + where women are confined, at all times. She shall be subject to + the board of police or to the chief of police. Her salary shall + not be less than the minimum paid to patrolmen.</p> + + <div class="sidenote"> + Right of suffrage. + </div> + + <p>In any election hereafter held in any city, incorporated town, + or school district, for the purpose of issuing any bonds for + municipal or school purposes, or for the purpose of borrowing + money, or for the purpose of increasing the tax levy, the right + of any citizen to vote shall not be denied or abridged on account + of sex, and women may vote at such elections, the same as men, + under the same qualifications and restrictions. [Act of the + Twenty-fifth General Assembly.]</p> + <hr style="width: 65%;"> + <a name="CHAPTER_XII"></a> + + <h2>CHAPTER XII.</h2><br> + + <center> + CONCLUSION. + </center> + + <div class="sidenote"> + Common law in Iowa. + </div> + + <p>The rules of the common law have never prevailed in all their + harshness in Iowa. At the time when the young state was born, + public sentiment already demanded a code more just, and, as + before noted, the first law for the protection or extension of + the property rights of married women, was passed in 1846. + Modifications and changes have followed each other through the + entire history of our state legislation, until our present law + approaches a condition so nearly one of equal and exact justice + between the sexes, that it might serve as a model for other + states less progressive than our own. Except in the way of + political disabilities our law makes no discrimination against or + in favor of women. They have all the rights and privileges + enjoyed by men, and are subject to the same duties and + responsibilities. Before the law they are equal, but, as a matter + of fact, where the law does not interfere, how is it in regard to + the property rights of the wife? <span class="sidenote">Unmarried + women. Property rights.</span> The unmarried woman has control of + her property, if she has any, to the same extent that an + unmarried man has control of his. If she accumulates money or + property by an expenditure of her time and labor, it belongs to + her alone. She can keep it, give it away, will it, spend it, + enjoy it, with the same unquestioned right and freedom enjoyed by + her brother. <span class="sidenote">Married women.</span>But a + married woman possesses no such independence, notwithstanding the + laws in her favor. The circumstances of her life may be such, + <span class="sidenote">Law will not protect them.</span> that the + law will be powerless to protect her in the enjoyment of property + which by right belongs to her. The relations and respective + duties of husband and wife are such that the husband usually and + necessarily controls the business and the family income. The + amount of that income over and above the expenditures for family + expenses, he invests as he chooses. If it is his will to invest + it in real estate, the law says she may have a share of it after + his death. 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. It may even be + obtained wholly by her efforts, even though not arising from the + profits of any "separate business" recognized by the law. Her + contribution to the family income may, and generally does, come + into the possession of the husband and he invests it in property + to which he naturally and as a matter of course takes the title. + During his life he controls it. After his death one-third will + belong to the wife, if there are children. If there are no + children one-half will go to his heirs no matter how distant the + relationship may be.</p> + + <div class="sidenote"> + Law may result in hardship and suffering. + </div> + + <p>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. Of course the result would be + the same in the case of the husband upon the death of the wife, + if she held the title to all of the common property. That this + law of descent has not operated to the disadvantage of the + husband, but invariably to the disadvantage of the wife, is not + due to any defect in either the letter or spirit of the existing + law, but is the natural and inevitable result of the custom which + gives the husband the title to and the control of the joint + earnings of himself and wife.</p> + + <div class="sidenote"> + Change or modification needed. + </div> + + <p>It is difficult to suggest a remedy or to conceive of any law + which would adjust and equalize the relations of husband and wife + in the ownership and control of common property during the + lifetime of both, but if some just and wise legislator can devise + some change or modification of the present law, which will not + interfere with the husband's proper and necessary position as + breadwinner and manager of the business of the family + partnership, and which will give to the wife control of a portion + of the family income while the husband lives, and when the total + amount of property held by either, is only sufficient to afford a + comfortable support to the other, will after the death of the + owner of the property, secure it all to husband or wife, as the + case may be, he will add to the laws of the state the one + requisite necessary to secure to women equal property rights with + men, and a more just distribution of intestate property.</p> + + + + + + + +<pre> + + + + + +End of the Project Gutenberg EBook of Legal Status Of Women In Iowa +by Jennie Lansley Wilson + +*** END OF THIS PROJECT GUTENBERG EBOOK LEGAL STATUS OF WOMEN IN IOWA *** + +***** This file should be named 12049-h.htm or 12049-h.zip ***** +This and all associated files of various formats will be found in: + https://www.gutenberg.org/1/2/0/4/12049/ + +Produced by Garrett Alley, and the Online Distributed Proofreading Team. + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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