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+*** START OF THE PROJECT GUTENBERG EBOOK 12049 ***
+
+LEGAL STATUS
+
+OF
+
+WOMEN IN IOWA.
+
+COMPILED BY
+
+JENNIE L. WILSON, LL. B.
+
+Member of the Polk County Bar.
+
+DES MOINES:
+IOWA PRINTING COMPANY.
+1894.
+
+
+
+
+Preface.
+
+
+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.
+
+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."
+
+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 _particeps criminis_.
+
+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.
+
+The design of the work is not broad enough to give to the most careful
+reader that knowledge of the _minutiae_ 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.
+
+J.L.W.
+
+Des Moines, Iowa, May 1894.
+
+
+
+
+TABLE OF CONTENTS.
+
+
+CHAPTER I.
+
+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
+
+
+CHAPTER II.
+
+MARRIAGE.
+Contract of marriage--Legal age--No express form necessary--Who may
+solemnize--When void
+
+
+CHAPTER III.
+
+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
+
+
+CHAPTER IV.
+
+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
+
+
+CHAPTER V.
+
+MINORS AND GUARDIANSHIP.
+Majority--Contracts of minors--Natural guardians--Guardians of
+property--Powers and duties of guardian--Guardians of drunkards,
+spendthrifts and lunatics
+
+
+CHAPTER VI.
+
+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
+
+
+CHAPTER VII.
+
+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
+
+
+CHAPTER VIII.
+
+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
+
+
+CHAPTER IX.
+
+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
+
+
+CHAPTER X.
+
+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
+
+
+CHAPTER XI.
+
+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
+
+
+CHAPTER XII.
+
+CONCLUSION.
+Common law in Iowa--Law will not always protect married women--It may
+cause hardship and suffering--Change or modification needed
+
+
+
+
+Common Law
+
+
+CHAPTER I.
+
+SYNOPSIS OF COMMON LAW.
+
+[Sidenote: Common law in force.]
+
+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.
+
+[Sidenote: Changes.]
+
+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.
+
+[Sidenote: Basis of statue law.]
+
+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.
+
+[Sidenote: Marriage]
+
+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.
+
+[Sidenote: What constitutes.]
+
+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.
+
+[Sidenote: Dissolution of marriage.]
+
+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.
+
+[Sidenote: Subjection of married women.]
+
+By the rules of the common law, the person and property of women were
+under the absolute control of their husbands. The maxim, _Uxor non est
+juris, sed sub potestate viri_, "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.
+
+[Sidenote: Legally dead.]
+
+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.
+
+[Sidenote: Unity of person.]
+
+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.
+
+[Sidenote: Power of husband.]
+
+We are told that at marriage the husband "adopted his wife and her
+circumstances together." He might exercise his power over her person by
+restraining her of her liberty in case of gross misbehavior, or by
+giving her moderate chastisement in the same degree that he might
+administer correction to his children. An early decision of one of our
+state courts interpreted this to mean that a man might whip his wife
+with a switch as large as his finger, but not larger than his thumb,
+without being guilty of an assault.
+
+[Sidenote: Disabilities.]
+
+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.
+
+[Sidenote: Wife's power to contract.]
+
+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.
+
+[Sidenote: Release of dower.]
+
+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.
+
+[Sidenote: Wife's earnings.]
+
+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.
+
+[Sidenote: Power of conveyance and devise.]
+
+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.
+
+[Sidenote: Domicile.]
+
+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."
+
+[Sidenote: Witness.]
+
+Neither husband nor wife was competent as a witness to testify either
+for or against the other in civil or criminal cases.
+
+[Sidenote: Husband entitled to society of wife.]
+
+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.
+
+[Sidenote: Suits at law.]
+
+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.
+
+[Sidenote: Wife as executor.]
+
+The consent of the husband was necessary to enable a married woman to
+act as executor, administrator, guardian or trustee.
+
+[Sidenote: Duty of husband.]
+
+[Sidenote: Liable for anti-nuptial contracts.]
+
+[Sidenote: Torts of wife.]
+
+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. 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. 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.
+
+[Sidenote: Widow's quarantine.]
+
+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."
+
+[Sidenote: Custody of children.]
+
+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.
+
+[Sidenote: Property rights.]
+
+[Sidenote: Wife's paraphernalia]
+
+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.
+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.
+
+[Sidenote: Choses in action.]
+
+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.
+
+[Sidenote: Real property of wife.]
+
+[Sidenote: Curtesy.]
+
+[Sidenote: Dower.]
+
+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. 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
+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.
+
+[Sidenote: Descent of property.]
+
+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.
+
+[Sidenote: Unity of person in criminal law.]
+
+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.
+
+[Sidenote: Theft, burglary, etc.]
+
+[Sidenote: Presumption of innocence.]
+
+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. 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."
+
+[Sidenote: Murder of wife.]
+
+[Sidenote: Murder of husband.]
+
+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." 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.
+
+[Sidenote: Petit treason.]
+
+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.
+
+[Sidenote: Larceny, bigamy, etc.]
+
+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.
+
+[Sidenote: Adultery and seduction.]
+
+[Sidenote: Rape.]
+
+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. 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.
+
+[Sidenote: Right of appeal.]
+
+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.)
+
+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!"
+
+[Sidenote: Reason for discrimination.]
+
+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.
+
+
+
+
+Law of Iowa.
+
+
+CHAPTER II.
+
+MARRIAGE.
+
+
+[Sidenote: Contract.]
+
+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."
+
+[Sidenote: Between what ages valid.]
+
+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.
+
+[Sidenote: License.]
+
+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.
+
+[Sidenote: Under age.]
+
+[Sidenote: Consent of parent.]
+
+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, 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.]
+
+[Sidenote: Proof of age.]
+
+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.]
+
+[Sidenote: Record.]
+
+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.]
+
+[Sidenote: Proof of consent of parent.]
+
+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.]
+
+[Sidenote: Penalty.]
+
+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.]
+
+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.
+
+[Sidenote: Who may solemnize.]
+
+Marriages must be solemnized either:
+
+1. By a justice of the peace or mayor of the city or incorporated town
+wherein the marriage takes place;
+
+2. By some judge of the supreme or district court of this state;
+
+3. By some officiating minister of the gospel ordained or licensed
+according to the usages of his denomination. [§3384.]
+
+[Sidenote: Certificate]
+
+After the marriage has been solemnized the officiating minister or
+magistrate shall, on request, give each of the parties a certificate
+thereof. [§3385.]
+
+[Sidenote: Penalty.]
+
+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.]
+
+[Sidenote: Return.]
+
+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.]
+
+[Sidenote: Register of marriages.]
+
+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.
+
+[Sidenote: Peculiar mode.]
+
+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].
+
+[Sidenote: Husband responsible for return.]
+
+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].
+
+[Sidenote: When void.]
+
+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.
+
+
+
+
+CHAPTER III.
+
+
+HUSBAND AND WIFE
+
+[Sidenote: Property rights of married women.]
+
+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.
+
+[Sidenote: Real property, Conveyance, or contract.]
+
+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].
+
+[Sidenote: Conveyance by husband and wife.]
+
+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."
+
+[Sidenote: Interest of either in other's property.]
+
+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.
+
+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.
+
+[Sidenote: Remedy by one against the other.]
+
+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.
+
+[Sidenote: Husband not liable for wife's torts.]
+
+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.
+
+[Sidenote: Conveyances to each other valid.]
+
+[Sidenote: Conveyances to third parties.]
+
+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, 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.
+
+[Sidenote: Abandonment of either.]
+
+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.
+
+[Sidenote: Contracts and sales binding.]
+
+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.]
+
+[Sidenote: Decree set aside.]
+
+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.]
+
+[Sidenote: Attorney in fact.]
+
+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.
+
+[Sidenote: Wages of wife.]
+
+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.
+
+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.
+
+[Sidenote: Property of one not liable for debts of the other.]
+
+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.
+
+[Sidenote: Contracts of wife.]
+
+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.
+
+[Sidenote: Family expenses.]
+
+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.
+
+[Sidenote: Removal from homestead.]
+
+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.]
+
+[Sidenote: Conveyance of property.]
+
+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.]
+
+[Sidenote: Proceedings and decree.]
+
+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.]
+
+[Sidenote: Appointment, Revocation.]
+
+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.]
+
+
+
+
+CHAPTER IV.
+
+
+DIVORCE, ANNULLING MARRIAGES AND ALIMONY.
+
+[Sidenote: Jurisdiction.]
+
+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.
+
+[Sidenote: Petition.]
+
+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.]
+
+[Sidenote: Verification. Evidence. Hearing.]
+
+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.
+
+[Sidenote: Causes.]
+
+Divorce from the bonds of matrimony may be decreed against the husband
+for the following causes:
+
+1. When he has committed adultery subsequent to the marriage;
+
+2. When he wilfully deserts his wife and absents himself without a
+reasonable cause for the space of two years;
+
+3. When he is convicted of felony after the marriage;
+
+4. When, after marriage, he becomes addicted to habitual drunkenness;
+
+5. When he is guilty of such inhuman treatment as to endanger the life
+of his wife. [§3414.]
+
+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.
+
+[Adultery.]
+
+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.
+
+[Sidenote: Desertion.]
+
+A reasonable cause for desertion must be some wrongful conduct on the
+part of the other party, and must be of such a serious nature that it
+would _prima facie_ entitle the party deserting to a divorce. If husband
+and wife mutually agree to separate, such separation will not constitute
+ground for divorce, unless the party applying for the divorce, in good
+faith expresses a desire to live with the other. 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.
+
+[Sidenote: Felony.]
+
+A conviction for felony which may be subject to reversal does not
+constitute ground for divorce, but such conviction must be final and
+absolute.
+
+[Sidenote: Drunkenness.]
+
+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.
+
+[Sidenote: Cruel treatment.]
+
+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.
+
+[Sidenote: Husband from wife.]
+
+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.
+
+[Sidenote: Cross petition.]
+
+The defendant may obtain a divorce for the causes as above stated, by
+filing a cross petition. [§3416.]
+
+[Sidenote: Maintenance during litigation.]
+
+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.
+
+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.
+
+[Sidenote: Attachment.]
+
+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.
+
+[Sidenote: Showing.]
+
+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.]
+
+[Sidenote: Alimony, Custody of children, Changes.]
+
+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.
+
+[Sidenote: Forfeiture.]
+
+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.
+
+[Sidenote: Annulling illegal marriages.]
+
+Marriages may be annulled for the following causes:
+
+1. Where marriage between the parties is prohibited by law.
+
+2. Where either party was impotent at the time of the marriage.
+
+3. 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.
+
+4. 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.
+
+[Sidenote: Petition.]
+
+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]
+
+[Sidenote: Validity determined.]
+
+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]
+
+[Sidenote: Children. Legitimacy.]
+
+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]
+
+[Sidenote: Prior marriage.]
+
+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.]
+
+[Sidenote: Alimony.]
+
+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.]
+
+
+
+
+CHAPTER V.
+
+
+MINORS AND GUARDIANSHIP.
+
+[Sidenote: Majority.]
+
+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.
+
+[Sidenote: Contracts.]
+
+[Sidenote: Disaffirmance.]
+
+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. 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.
+
+[Sidenote: Misrepresentations. Engaging in business.]
+
+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.
+
+[Sidenote: Natural guardians.]
+
+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, _provided_, he receives them
+into his family. He is entitled to their services and is responsible for
+their education and maintenance. The parents can at any time consent to
+surrender the custody of their minor children and transfer this custody
+to another by agreement. Articles of adoption properly executed
+according to the requirements of the law upon that subject, are
+necessary to invest another with the rights and responsibilities of a
+parent.
+
+[Sidenote: Surviving parent, Guardian appointed.]
+
+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.]
+
+[Sidenote: Of property.]
+
+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.]
+
+[Sidenote: Minor may choose.]
+
+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.]
+
+[Sidenote: Powers.]
+
+Guardians of the persons of minors have the same power and control over
+them that parents would have if living. [§3440.]
+
+[Sidenote: Duties.]
+
+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.
+
+[Sidenote: Property in state.]
+
+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.]
+
+[Sidenote: Guardians of drunkards, spendthrifts and lunatics.]
+
+When a petition is presented to the district court, verified by
+affidavit, that any inhabitant of the county is:
+
+1. An idiot, lunatic, or person of unsound mind;
+
+2. An habitual drunkard incapable of managing his affairs;
+
+3. 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.]
+
+[Sidenote: Order for restraint of drunkard.]
+
+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.
+
+[Sidenote: Real estate sold. Allowance to family.]
+
+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.]
+
+[Sidenote: Custody]
+
+The priority of claim to the custody of any insane person, habitual
+drunkard, or spendthrift aforesaid, shall be:
+
+1. The legally appointed guardian.
+
+2. The husband or wife.
+
+3. The parents.
+
+4. The children. [§3470.]
+
+
+
+
+CHAPTER VI.
+
+
+APPRENTICING AND ADOPTION OF CHILDREN.
+
+[Sidenote: Minors.]
+
+Any minor child may be bound to service until the attainment of the age
+of legal majority as hereinafter described. [§3471.]
+
+[Sidenote: Indenture.]
+
+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.]
+
+[Sidenote: Consent of parent or guardian.]
+
+A written consent must be appended to or endorsed upon such agreement,
+and signed by one of the following persons, to-wit:
+
+1. 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
+
+2. By the mother; and if she be dead or unable, or incapacitated for
+giving such assent, then,
+
+3. By the guardian; and if there be no guardian, then by the clerk of
+the district court. [§3473.]
+
+[Sidenote: Natural guardian removed.]
+
+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.]
+
+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.]
+
+[Sidenote: Schooling and treatment of minors.]
+
+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.]
+
+[Sidenote: Adoption of children. Who may adopt.]
+
+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.]
+
+[Sidenote: Consent of parents or officer.]
+
+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]
+
+[Sidenote: Instrument acknowledged and recorded.]
+
+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.
+
+[Sidenote: Effect.]
+
+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.
+
+[Sidenote: Maltreatment.]
+
+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.]
+
+[Sidenote: Home for the friendless Powers.]
+
+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.]
+
+[Sidenote: Surrender of child.]
+
+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]
+
+[Sidenote: Home becomes guardian.]
+
+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.]
+
+
+
+
+CHAPTER VII.
+
+
+WILLS AND LETTERS OF ADMINISTRATION.
+
+[Sidenote: Who may make wills.]
+
+[Sidenote: Of what property]
+
+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.
+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.
+
+[Sidenote: Subsequent property.]
+
+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.
+
+[Sidenote: Verbal wills.]
+
+Personal property to the value of three hundred dollars may be
+bequeathed by a verbal will, if witnessed by two competent witnesses.
+[§3524.]
+
+[Sidenote: Soldier or mariner.]
+
+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.]
+
+[Sidenote: In writing. Witnessed. Signed.]
+
+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.
+
+[Sidenote: Interest of witness.]
+
+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.]
+
+[Sidenote: Revocation.]
+
+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.
+
+[Sidenote: Cancellation.]
+
+When done by cancellation, the revocation must be witnessed in the same
+manner as the making of a new will. [§3530.]
+
+[Sidenote: Executors.]
+
+If no executors are named in the will, one or more may be appointed to
+carry it into effect. [§3532.]
+
+[Sidenote: Posthumous children.]
+
+Posthumous children unprovided for by the father's will, shall inherit
+the same interest as though no will had been made. [§3534.]
+
+[Sidenote: Heirs of a devisee.]
+
+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.
+
+[Sidenote: Married women.]
+
+A married woman may act as executor independent of her husband. [§3545.]
+
+[Sidenote: Minors.]
+
+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.]
+
+[Sidenote: Administration. Who entitled. Order.]
+
+In other cases where an executor is not appointed by will,
+administration shall be granted:
+
+1. To the wife of the deceased;
+
+2. To his next of kin;
+
+3. To his creditors;
+
+4. To any other person whom the court may select. [§3555.]
+
+[Sidenote: Classes united.]
+
+Individuals belonging to the same or different classes, may be united as
+administrators whenever such course is deemed expedient. [§3556.]
+
+[Sidenote: Time allowed.]
+
+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.]
+
+
+
+
+CHAPTER VIII.
+
+
+SETTLEMENT OF THE ESTATE--DESCENT AND DISTRIBUTION OF PROPERTY.
+
+[Sidenote: Exempt personal property.]
+
+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.
+
+[Sidenote: Life insurance.]
+
+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.
+
+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.
+
+[Sidenote: Allowance to widow and children.]
+
+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.
+
+[Sidenote: Expenses of funeral.]
+
+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.]
+
+[Sidenote: Allowance.]
+
+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.]
+
+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.
+
+[Sidenote: Descent and distribution. Personal property.]
+
+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.
+
+[Sidenote: Payment.]
+
+The distributive shares shall be paid over as fast as the executors can
+properly do so. [§3641.]
+
+[Sidenote: In kind.]
+
+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.]
+
+[Sidenote: Partial distribution.]
+
+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.]
+
+[Sidenote: Share of husband or wife.]
+
+[Sidenote: Dower and curtesy.]
+
+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] 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.
+
+[Sidenote: Homestead.]
+
+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.
+
+[Sidenote: Widow of alien.]
+
+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.
+
+[Sidenote: How set off.]
+
+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.]
+
+[Sidenote: Application]
+
+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.]
+
+[Sidenote: Widow's share not affected by will.]
+
+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.
+
+[Sidenote: Descent. To children.]
+
+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.]
+
+[Sidenote: Share of deceased child.]
+
+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.
+
+[Sidenote: Wife and parents.]
+
+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.
+
+[Sidenote: Surviving parents.]
+
+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.]
+
+[Sidenote: Heirs of parents.]
+
+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.]
+
+[Sidenote: Wife and her heirs.]
+
+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.]
+
+[Sidenote: Advancement.]
+
+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.
+
+[Sidenote: Where there are no heirs.]
+
+If there be property remaining uninherited, it shall escheat to the
+state. [§3665.]
+
+[Sidenote: Illegitimate children. Inherit from mother.]
+
+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.
+
+[Sidenote: Inherit from father.]
+
+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.
+
+[Sidenote: Father inherits from child.]
+
+Under such circumstances, if the recognition of relationship has been
+mutual, the father may inherit from his illegitimate children. [§3672.]
+
+
+
+
+CHAPTER IX.
+
+
+HOMESTEAD AND EXEMPTIONS.
+
+[Sidenote: Homestead exempt.]
+
+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.
+
+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.
+
+[Sidenote: Family defined.]
+
+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.]
+
+[Sidenote: Conveyance or incumbrance.]
+
+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.
+
+[Sidenote: Liable for taxes.]
+
+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.
+
+[Sidenote: Liable for debts.]
+
+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.
+
+[Sidenote: Debts created by written contract.]
+
+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.
+
+[Sidenote: What constitutes.]
+
+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.
+
+[Sidenote: Embraces what.]
+
+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.]
+
+[Sidenote: Extent.]
+
+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.]
+
+[Sidenote: Dwelling appurtenances.]
+
+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.]
+
+[Sidenote: Selecting. Platting.]
+
+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.]
+
+[Sidenote: Description. Recording.]
+
+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.]
+
+[Sidenote: Changes.]
+
+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.]
+
+[Sidenote: New homestead exempt.]
+
+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.]
+
+[Sidenote: Survivor to occupy.]
+
+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.
+
+[Sidenote: Election to retain. Descent. Exemption.]
+
+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.]
+
+[Sidenote: When sold.]
+
+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.]
+
+[Sidenote: Devise.]
+
+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.
+
+[Sidenote: Exemptions. To head of family.]
+
+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.
+
+[Sidenote: Life Insurance.]
+
+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.]
+
+[Sidenote: Family defined.]
+
+The word "family," as used in section 4297, does not include strangers
+or boarders lodging with the family. [§4298.]
+
+[Sidenote: Perpetual earnings.]
+
+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.]
+
+[Sidenote: Unmarried persons. Non-residents.]
+
+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.]
+
+[Sidenote: Persons starting to leave the state.]
+
+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.]
+
+[Sidenote: Purchase money.]
+
+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.]
+
+[Sidenote: Absconding debtor.]
+
+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.]
+
+[Sidenote: Sewing machine.]
+
+If the debtor is a seamstress, one sewing-machine shall be exempt from
+execution and attachment. [§4304.]
+
+[Sidenote: Pension money.]
+
+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.]
+
+[Sidenote: Homestead.]
+
+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.]
+
+[Sidenote: Damages.]
+
+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.]
+
+
+
+
+CHAPTER X.
+
+
+CRIMINAL LAW-ILLEGITIMATE CHILDREN.
+
+[Sidenote: Rape.]
+
+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.]
+
+[Sidenote: Intent to commit rape.]
+
+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.]
+
+[Sidenote: Compelling to marry.]
+
+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.]
+
+[Sidenote: Carnal knowledge.]
+
+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.]
+
+[Sidenote: Producing miscarriage of pregnant woman.]
+
+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.]
+
+[Sidenote: Enticing female child for prostitution.]
+
+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.]
+
+[Sidenote: Enticing away child.]
+
+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.]
+
+[Sidenote: Seduction.]
+
+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.]
+
+[Sidenote: Marriage a bar.]
+
+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.
+
+[Sidenote: Adultery.]
+
+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.]
+
+[Sidenote: Evidence in cases of rape or seduction.]
+
+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.
+
+[Sidenote: Bigamy.]
+
+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.]
+
+[Sidenote: Exceptions.]
+
+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.]
+
+[Sidenote: Knowingly marrying husband or wife.]
+
+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.]
+
+[Sidenote: Lewdness.]
+
+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.]
+
+[Sidenote: Keeping house of ill-fame.]
+
+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.]
+
+[Sidenote: Houses of ill-fame.]
+
+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.]
+
+[Sidenote: Lease rendered void.]
+
+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.]
+
+[Sidenote: Leasing house for such purpose.]
+
+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.]
+
+[Sidenote: Enticing to house of ill-fame.]
+
+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.]
+
+[Sidenote: Penalty for prostitution.]
+
+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.]
+
+[Sidenote: Incest.]
+
+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.]
+
+[Sidenote: Illegitimate children. Complaint.]
+
+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.]
+
+[Sidenote: Judgment.]
+
+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.]
+
+[Sidenote: Marriage of parents.]
+
+Illegitimate children become legitimate by the subsequent marriage of
+their parents. [§3391.]
+
+
+
+
+CHAPTER XI.
+
+
+MISCELLANEOUS PROVISIONS.
+
+[Sidenote: Action for damages under prohibitory liquor law.]
+
+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.
+
+[Sidenote: Parties in action for seduction.]
+
+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.
+
+[Sidenote: For injury or death of minor child.]
+
+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.]
+
+[Sidenote: Married women]
+
+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.]
+
+[Sidenote: Defense.]
+
+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.]
+
+[Sidenote: When husband or wife deserts family.]
+
+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.]
+
+[Sidenote: Evidence. Husband and wife.]
+
+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.
+
+[Sidenote: Communications between husband and wife.]
+
+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.]
+
+[Sidenote: Women eligible to office.]
+
+Women are eligible to all school offices in the state, including those
+of county superintendent and school director. [§§2828, 2829.]
+
+No person shall be disqualified for holding the office of county
+recorder on account of sex. [§471.]
+
+[Sidenote: Police matrons.]
+
+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.
+
+[Sidenote: Right of suffrage.]
+
+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.]
+
+
+
+
+CHAPTER XII.
+
+
+CONCLUSION.
+
+[Sidenote: Common law in Iowa.]
+
+[Sidenote: Unmarried women. Property rights.]
+
+[Sidenote: Married women.]
+
+[Sidenote: Law will not protect them.]
+
+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? 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. But a married
+woman possesses no such independence, notwithstanding the laws in her
+favor. The circumstances of her life may be such, 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.
+
+[Sidenote: Law may result in hardship and suffering.]
+
+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.
+
+[Sidenote: Change or modification needed.]
+
+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.
+
+
+
+
+
+
+
+End of the Project Gutenberg EBook of Legal Status Of Women In Iowa
+by Jennie Lansley Wilson
+
+*** END OF THE PROJECT GUTENBERG EBOOK 12049 ***