to as adopted in New York and other states, the heir, in the states of New York, 120 Kentucky, Missouri, Wisconsin, and Iowa, is ex pressly authorized to bring the action for waste committed during the life of the ancestor.

§ 34.

Continued-5. Joinder of Husband and Wife.

The Practice codes of Ohio,121 Indiana,122 Kentucky,128 Wisconsin,124 California,125 Oregon, 120 Nevada,127 North Carolina,128 South Carolina,129 and Colorado,130 provide that when a married woman is a party, her husband must be joined with her,131 except when the action concerns her separate property, she may sue alone; and when it is between herself and husband, she may sue or be sued alone.

120 Code Civ. Proc. N. Y. (Banks' Ed.) § 1652.

121 Civ. Code, § 28, amended in 1870, by rejecting the next friend. Rev. St. 1880, § 4996.

122 Code Civ. Proc. § 8; Rev. St. 1881, § 254, amended by omitting the clause requiring the joinder of the husband.

123 Bullitt's Code, § 34.

124 Rev. St. 1871, c. 122, § 15; Rev. St. 1878, § 2608.

125 Code Civ. Proc. 1876, § 370.

126 Code Civ. Proc. § 30.

127 Comp Laws 1873, § 1070.

128 Code Civ. Proc. § 56 (Code 1883, § 178, amended).

129 Code Civ. Proc. § 135.

180 Code Civ. Proc. § 6.

131 [The common-law rule which prevented the wife from bringing an action in her own name, and the necessity of joining husband and wife as coplaintiffs in actions where the wife should be a party, has been greatly modified or entirely swept away in all the states which have adopted the reformed system of procedure; and in those states there is now no instance where the husband and wife must, or even may, join merely because of their marital relations. They are only proper coplaintiffs when, by virtue of their joint rights, it is made necessary. See Code Civ. Proc. N. Y. § 450 (as amended in 1890), which provides as follows: "In an action or special proceeding a married woman appears, prosecutes, or defends alone or joined with other parties as if she was single. It is not necessary or proper to join her husband with her as a party in any action or special proceeding affecting separate property. The husband is not a necessary or proper party to an action or special proceeding to recover damages to the person, estate, or character of his wife, and all sums that may be recovered in such actions or special proceedings shall be the separate property of the wife. The husband is not a necessary or proper party to an

In New York, Ohio, Indiana, Oregon, Missouri, and South Carolina, when she sues or is sued alone, the next friend of the Equity Practice is expressly repudiated; and in California, Kentucky, Wiscon sin and Nevada nothing is said in the Code upon the subject. In California the wife may also sue or be sued alone, when living separate from her husband. In Iowa,132 Minnesota, 188 Kansas,134 Nebraska,185 and New York,136 a married woman is required to sue, and is subject to be sued, as though she were unmarried; while in Missouri,137 by the last named statute, in all cases where the wife is a party, the husband shall be joined, unless the action is between the two, in which case they may both appear by attorney. In Arkansas, ,138 in addition to her right to sue for, and on account of, her separate estate, she may also sue alone for any injury to her character, person, or property, and is liable to be thus sued in respect to any trade or business carried on by her under the statute.

The Married Woman's Acts of most of the states, in addition to the above code provisions, allow a married woman to sue and be sued as if sole, in respect to her separate property, and to bring suit in her own name for injuries to her person or character.

§ 35. Continued-6. Plaintiffs in actions to protect separate Estates of married Women.

We have just seen that a married woman may sue alone concerning her separate property. In bringing an action to protect such property from an injury-as from a trespass, or for a conversion of her personal property-should it be brought in the name of the wife?

In answering this question we must consider the nature of her

action or special proceeding to recover damages to the person, estate, or character of another on account of the wrongful acts of his wife, committed without his instigation."]

132 Code 1873, § 2562.

133 1 St. at Large 1873, p. 786; Gen. St. 1878, p. 710, § 29.

134 Gen. St. 1868, c. 80, § 29; Comp. Laws 1879, p. 605.

135 Code Civ. Proc. § 31; Gen. St. 1873, p. 528.

136 Code Civ. Proc. 1876, § 450.

137 Wag. St. 1001, § 8 (Rev. St. 1879, § 3468). This is modified by the act of March 16, 1883, by which as the separate owner of her personal property she is authorized to sue in her own name in respect to it.

138 Gantt's Dig. 1874, § 4487.

title.139 By the law of England, which, in this regard, prevails in the states where the common law has been adopted, unless modified by statute, the use of the wife's realty was given to the husband dur ing marriage, and, upon issue born alive, during his life; and the absolute title to her personal property, except paraphernalia, was vested in him, together with the right to reduce to possession her choses in action. These harsh features of the common law have been, however, modified by the doctrines of the courts of equity, and especially by the encouragement given to settle property upon the wife to her separate use. Hence has grown up a class of equitable titles in married women, by which, through the intervention of trustees, she is enabled to hold and enjoy property, real and personal, as though she were unmarried. The property is usually giv en to trustees for her separate use, and the statute of uses is not permitted to execute the use; but if it has been conveyed directly to her, so that she holds the legal as well as the equitable estate, the marriage is not permitted to divest her of the use; the husband, who by virtue of the marriage takes a legal estate in the property, can hold it only as trustee. This equitable estate in the wife is par ticularized in this connection to distinguish it from the separate estate of the wife created by the Married Woman's Acts, so called, of which I shall presently speak.

In answer, then, to the question, and in reference to that which is thus held for the use of the wife, actions for the, redress of injuries which affect the title or the inheritance should, upon principle, be brought by the trustee, the holder of the legal title.140 It

139 [If the wife holds both the legal and equitable title, then she is the proper party plaintiff in an action to protect the estate in all states where she is expressly authorized by statute to sue alone. See following provisions: Code

Civ. Proc. N. Y. § 449; Rev. St. Ohio, § 4995; Mansf. Dig. Ark. § 4936; Code Civ. Proc. Cal. § 369; Code Civ. Proc. Colo. § 5; Gen. St. Conn. § 886; Rev. St. Idaho, § 4092; Rev. St. Ind. § 252; Code Iowa, § 3749; Gen. St. Kan. par. 4105; Civ. Code Ky. § 21; Gen. St. Minn. c. 66, § 28; Rev. St. Mo. § 1991; Code Civ. Proc. Mont. § 6; Consol. St. Neb. § 4567; Gen. St. Nev. § 3028; Code N. C. § 179; Comp. Laws N. D. § 4872; St. Okl. § 4306; Code Or. § 29; Code Civ. Proc. S. C. § 136; Comp. Laws S. D. § 4872; Comp. Laws Utah, § 3171; Code Civ. Proc. Wash. § 135; Rev. St. Wis. § 2607; Rev. St. Wyo. § 2384. Aliter if she holds but the equitable title. See above statutory provisions.] 140 Washb. Real Prop. bk. 2, c. 3, § 4, p. 6.

is his duty to protect the property and protect her in its enjoyment, although, if he refuses to do, she, like other beneficiaries, may have an action to enforce the trust. In Missouri,141 upon the tortious conversion of a slave held for the separate use of the wife, she was not permitted to sue in her own name. The court held it to be the duty of the trustee to protect the legal ownership from jeopardy, and that the wife is only entitled to her action when he refuses to do his duty, or when there are obstacles in the way of a legal remedy. The general rule in regard to parties when property is held by trustees of an express trust, applies to trusts of this nature, and is thus stated in a California case: "It is the duty of a trustee to look after, guard, and protect the trust estate against all enemies.

That the trustee would be bound to bring an action to prevent waste or trespass upon the land in question, or ejectment to recover its possession in case of ouster, does not admit of doubt. On the contrary, should he refuse to do so, his cestui que trust may bring an action to compel him to do so." 142

§ 36. Continued-7. Injuries to her separate Estate held under the Married Woman's Acts.

The authority given married women to bring suit in their own name in respect to their separate property must have had reference chiefly to property secured to her separate use by the Married Woman's Acts, so called, as will appear by a reference to some of those acts.

This legislation commenced in New York, and from 1848 to 1862 sundry enactments have, in that state, almost wholly overthrown the marital relations of the husband to the wife's property, as recognized by the common law. By the first of this series of acts it is provided that the real and personal property of the wife owned at

141 RICHARDSON v. MEANS, 22 Mo. 495. Leonard, J., delivering the opinion [says: "The Code has not changed the rights of parties, but only provided new remedies for their enforcement. It has not abolished the distinction between legal and equitable rights, but the distinction between legal and equitable remedies, so far at least as to provide that one form of suit shall be used for the enforcement of both classes of rights." Peck v. Newton, 46 Barb. 173; Matlock v. Todd, 25 Ind. 128.]

142 Tyler v. Houghton, 25 Cal. 29.

her marriage, or which she may afterwards acquire, with the rents, issues, and profits thereof, are divested of any control of the husband or liability for his debts, and are held as her sole and separate property, as though she were single. By the second act trustees are authorized to convey to her property held for her use; by the third the antenuptial debts of the wife are made collectible only out of her separate estate, or out of the property of the husband to the extent of that held by him by antenuptial contract, or otherwise; the fourth pertains to insurance for her benefit; the fifth, re-enacting, in part, the first, adds to her separate property that which she acquires by her trade, business, or services-to be collected and invested in her own name-authorizes her to sell any personal property, and carry on any business or perform any services on her separate account, and to sell her real estate and bind her separate property by the covenants of her deed, allows her to sue and be sued as if sole, in relation to her separate property, and to bring suit in her own name for injuries to her person or character, and provides that no bargain of hers shall bind her husband; and the sixth exempts the husband's property from liability for costs in actions brought or defended by the wife, authorizes their recovery out of her sep arate property, requires the written consent of the wife to the ap prenticeship of her child, and to the creation of a testamentary guardian.143

So far as to enact that the real and personal property of the wife owned at the marriage, or subsequently acquired by her, shall be her sole and separate property, with authority to control it as though unmarried, this New York legislation has been followed in Indiana, in Wisconsin,145 in California,148 in Minnesota,147 in Ar kansas,148 in South Carolina,149 and, as to personal property, in Missouri.150 We have nothing to do, in this connection, with any

143 4 St. at Large N. Y. 513–517.

144 1 St. 1862, p $74.

145 Rev. St. 1871, p. 1195.

The act was first adopted in 1850.

146 Civ. Code 1876, §§ 162-164, following the constitution, article 11, § 14.

147 1 St. at Large 1873, p. 702.

148 Const. art. 12, § 6, and Gantt's Dig. 1874, §§ 4193-4203.

149 Rev. St. 1873, p. 482.

150 Acts 1875, p. 61; Rev. St. 1879, § 3296, amended as to parties by act of March 16, 1883.