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 womenof Iowa, in a brief and concise form, those laws which pertain tosubjects in which they are most deeply interested, and about which thereis a strong and growing demand for certain and accurate information. 

In this age of general intelligence, when learning in some degree is soreadily attainable, the maxim, that "Ignorance of the law excuses noone, " has a measure of justice in it, which could not be claimed for itin former times, and it is most certainly true that, "As the subjects oflaw, if not as its makers, all ought to know enough to avoid itspenalties and reap its benefits. "

Every woman should understand the law of her own state concerningmarriage, divorce, the care and custody of children, and the mutualrights and duties of husband and wife incident to the marriage relation. She should know something of the law of minors and guardianship, ofadministration, and descent of property, and her knowledge shouldcertainly embrace that class of crimes which necessarily includes herown sex, either as the injured party, or as _particeps criminis_. 

In the arrangement of this work, a very brief synopsis of the common lawupon these subjects is given, as the principles of the common lawunderlie our entire statute law, and a knowledge of the former isabsolutely essential to render much of the latter intelligible. Thestatute law of the state has been given in the exact words of thestatutes, with but few exceptions, and the explanations or notesfollowing these have been gathered from decisions of our supreme court. The references are to sections of McClain's Annotated Code andSupplement. 

The design of the work is not broad enough to give to the most carefulreader that knowledge of the _minutiae_ of the law necessary in theapplication of its principles to particular cases and under a specialstate of facts. It is in nowise adequate, even though its contentsshould be thoroughly mastered, to make every woman her own lawyer, inmatters where she would otherwise require legal advice, but it is hopedthat its statements are sufficiently plain and free from technicalphraseology and legal terms, that even the casual reader may readilycomprehend them, and be able to gain a general understanding of the lawof 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--Powerof husband--Disabilities of wife--Custody of children--Propertyrights--Descent of property--Discrimination in criminal matters--Rightof appeal--Reason for subjection of women

CHAPTER II. 

MARRIAGE. Contract of marriage--Legal age--No express form necessary--Who maysolemnize--When void

CHAPTER III. 

HUSBAND AND WIFE. Property rights of married women--Remedy by husband or wife against theother--Wife's torts--Conveyances to each other--Conveyances to thirdparties--Wages of wife--Contracts of wife--Family expenses--Removal fromhomestead--Conveyance of property when husband or wife is insane

CHAPTER IV. 

DIVORCE, ANNULLING MARRIAGES AND ALIMONY. Jurisdiction of court--Evidence--Causes for divorce--Husband fromwife--Maintenance during litigation--Alimony--Custody ofchildren--Annulling illegal marriages--Causes--Legitimacy of children

CHAPTER V. 

MINORS AND GUARDIANSHIP. Majority--Contracts of minors--Natural guardians--Guardians ofproperty--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 mayadopt--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 inwriting--Revocation--Cancellation--Executors--Administration--Whoentitled--Time allowed

CHAPTER VIII. 

SETTLEMENT OF THE ESTATE--DESCENT AND DISTRIBUTION OF PROPERTY. Exempt personal property--Life insurance--Allowance to widow andchildren--Descent and distribution--Personal property--Realproperty--Dower--Curtesy--Widow's share not affected by will--Descent tochildren--To parents--To wife and her heirs--Illegitimate childreninherit from mother--When they may inherit from father--When father mayinherit from child

CHAPTER IX. 

HOMESTEAD AND EXEMPTIONS. Homestead exempt--Family defined--Conveyance or encumbrance--Liabilityfor taxes and debts--What constitutes homestead--Exemptions to head offamily--Insurance--Personal earnings--Pension money--Damages producingdeath

CHAPTER X. 

CRIMINAL LAW--ILLEGITIMATE CHILDREN. Rape--Intent to commit--Compelling to marry--Carnal knowledge--Producingmiscarriage--Enticing female child--Seduction--Marriage a bar toprosecution--Adultery--Evidence in cases of rape orseduction--Bigamy--Lewdness--Houses of ill fame--Penalty forprostitution--Incest--Illegitimate children--Support of--Renderedlegitimate by marriage of parents

CHAPTER XI. 

MISCELLANEOUS PROVISIONS. Damages under prohibitory liquor law--Parties in actions forseduction--In actions for injury to minor child--Married women--Whenhusband or wife deserts family--Husband or wife aswitness--Communications between husband and wife--Women eligible tooffice--Police matrons--Right of suffrage

CHAPTER XII. 

CONCLUSION. Common law in Iowa--Law will not always protect married women--It maycause 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 thetime of the independence of the American colonies, relating to marriedwomen, the mutual duties of husband and wife, their property rights andthe care and custody of children, were everywhere in force in thiscountry except in those states which were originally settled by othernations than the English. 

[Sidenote: Changes. ]

The agitation of the last fifty years, caused by the demand for equalityin educational opportunities and in professional, business and traderelations, as well as for the legal and political recognition of women, has brought about great changes in these laws, until they are in manyinstances almost entirely superseded by statutory enactments more inaccordance with the spirit of justice and in greater harmony with therequirements of a higher form of civilization. In many states they havereached a condition in which the legal status of husband and wife isnearly, if not wholly, one of equality. 

[Sidenote: Basis of statue law. ]

It must always be borne in mind, however, that the common law is thefoundation upon which almost the entire structure of our Americansystem of jurisprudence is based, although it is claimed that it hasonly been recognized by our courts so far as it has been "applicable tothe habits and conditions of our society and in harmony with the genius, spirit and objects of our institutions. " As it became apparent from timeto time that it was not thus applicable, or where it failed to meet therequirements of the changed conditions of society the strictness of itsrules was relaxed by giving to them a broader construction, or, whenthis could not be done, they were modified or entirely changed bystatute. 

[Sidenote: Marriage]

Marriage was regarded by the common law as a civil contract and might beentered into legally by a boy of fourteen or a girl of twelve years ofage, provided they were under no legal disability to contract marriage. This was called the age of consent, or discretion, and a marriagecontracted prior to this time was inchoate only, and might be repudiatedby either party upon arriving at the legal age. If one of the partieswas above and the other under the required age, the marriage might stillbe disaffirmed by either. If after reaching the age of consent theparties continued to live together as husband and wife, this would beregarded 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 ofany formalities. The formal ceremonies provided by statute for thecelebration of marriages, and the penalties imposed upon clergymen andothers who married those who had not complied with these formalities, were solely for the purpose of providing a convenient and certain proofof marriage, should it be afterwards necessary to establish that factby evidence, rather than to invalidate marriages which would otherwisebe legal. 

[Sidenote: Dissolution of marriage. ]

Having established the marriage relation, it could only be dissolved bydeath or divorce granted by act of parliament, or, in this country afterthe declaration of independence, by act of legislature. No absolutedivorce could be granted for any cause arising after the marriage, but aseparation 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 wereunder the absolute control of their husbands. The maxim, _Uxor non estjuris, sed sub potestate viri_, "a wife is not her own mistress, but isunder the power of her husband, " is but an expression of the actuallegal status of a woman from the instant she entered the matrimonialstate, until released therefrom by death or divorce. 

[Sidenote: Legally dead. ]

Marriage was the act by which she ceased to have a legal existence, bywhich, we are told, her very being became incorporated or consolidatedinto 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 ofher husband, to be so absolutely and entirely one person with him, thatshe 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 datesback to feudal times, and may, perhaps, have been a necessity of the ageand of the peculiar social and political systems of that period. Likemany another law having its inception in a sincere desire to secure thegreatest good to the greatest number, and apparently necessary for thatpurpose at the period of social development which gave it birth, itexisted for centuries after it had ceased to result in any benefit orafford any protection, and after the reason for its being had passedaway and been forgotten. 

[Sidenote: Power of husband. ]

We are told that at marriage the husband "adopted his wife and hercircumstances together. " He might exercise his power over her person byrestraining her of her liberty in case of gross misbehavior, or bygiving her moderate chastisement in the same degree that he mightadminister correction to his children. An early decision of one of ourstate courts interpreted this to mean that a man might whip his wifewith 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 abusiness partnership with each other; neither could one convey propertyto the other without the intervention of a third party. The wife wasincapable of receiving a legacy unless it was willed to another personas trustee, for her use and benefit, and if a legacy were paid directlyto 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 byany kind of an agreement, neither could she make her husband liable forany debt or contract, except for necessaries. These, the husband wasunder obligation to provide, and in contracting for them, the lawassumed 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 onlywhen examined separately she acknowledged that the conveyance or releasewas not secured by his influence or coercion. 

[Sidenote: Wife's earnings. ]

Her earnings though acquired by her individual labor and in a businessseparate and apart from her husband belonged to him, and he couldcollect them by action. This was the law though husband and wife wereliving apart. They could be subjected to the payment of his debts, byhis creditors, and if he died without a will they descended to his heirsas other personal property. They were not considered the property of thewife, even in equity, without a clear, express, irrevocable gift, orsome distinct affirmative act of the husband, divesting himself of themand 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 deviseher 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 anypart of the world where "his interests, his tastes, his convenience, orpossibly, his caprice might suggest, " and it was the wife's duty tofollow him. If she refused to accompany him, no matter upon what groundshe based her refusal, she was guilty of desertion. A promise by thehusband before marriage as to the establishment of the place ofresidence of the family, created a moral obligation only and was a merenullity in law. Whenever there was a difference of opinion betweenhusband and wife in regard to the location of the common home, the willof the wife had to yield to that of the husband. This law of domicilewas based upon the grounds of the "identity of the husband and wife, thesubjection of the wife to the husband, and the duty of the wife to makeher home with her husband. "

[Sidenote: Witness. ]

Neither husband nor wife was competent as a witness to testify eitherfor 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 hemight bring an action for damages against anyone who harbored her, orpersuaded or enticed her to leave him or live separate from him. Ifinjuries were wrongfully inflicted upon her, two actions might bebrought against the party responsible for the wrong, one by husband andwife for the personal injury to the wife, and one by the husband forloss of the wife's services. In either case, the amount recoveredbelonged to the husband. 

[Sidenote: Suits at law. ]

The wife could neither sue or be sued unless her husband was joined withher in the suit. A judgment recovered against her alone was void, because she was unknown to the law apart from her husband. One enteredin her favor became the property of her husband. 

[Sidenote: Wife as executor. ]

The consent of the husband was necessary to enable a married woman toact 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 accordingto her rank and station, and if he failed to make suitable provision forher, tradesmen might furnish her with necessaries at her request andcould collect payment from the husband. He was liable for all of herdebts contracted before marriage, and this was the case, though he mayhave received no property with her. He was responsible for certainwrongs committed by her after marriage, such as libel and slander, andjudgment could be recovered against him. If a wrong were committedjointly by both, action might be brought against the husband alone. Whena judgment was recovered upon contract, or because of the wrongful actof 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 remainforty 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, --theright of the mother was never recognized, it being expressly stated byBlackstone that "a mother, as such, is entitled to no power, but only toreverence and respect. " He might by will appoint a guardian for themafter his death, though yet unborn, and might apprentice them or givethem 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 thehusband at marriage. He could will it to whom he pleased or, if he diedwithout a will, it descended to his heirs. Even her wearing apparel andornaments known by the term "paraphernalia, " belonged to the husband. During his life he had the power to sell or give them away, but he couldnot devise them by will. If they remained in the possession of the wifewhile the husband lived, she was entitled to them over and above herdower, but even then creditors of the husband might claim them, if therechanced to be a deficiency of other assets with which to pay the debtsof the estate. 

[Sidenote: Choses in action. ]

The wife's choses in action, or evidences of money or property due toher, such as notes, bonds, contracts or the like, belonged to thehusband if he reduced them to possession during her life, and they couldbe taken for his debts. He might bequeath them by will, but if he diedwithout a will they descended to his heirs. If he failed to reduce themto possession while the wife lived, after his death they would revert toher heirs. If she outlived her husband they belonged to her. After thehusband's death the wife took one-third of his personal estate if therewere 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, togetherwith the rents and profits of his wife's real estate during themarriage, and if a living child were born, he had, after the wife'sdeath, a life estate in such property and might retain possession of itwhile he lived. This was known as the husband's title by curtsy. Thewife took a dower, or life estate in one-third of the husband's landsafter his death, whether there were children or not. This estate ofdower was forfeited should the husband be found guilty of treason, buthis 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 shecould claim no interest in trust estates of her husband. If the wifeowned leases of land they could be sold or assigned by the husbandduring marriage. If he survived his wife they belonged to him, if shesurvived him, they belonged to her, provided he had not disposed of themwhile living. 

[Sidenote: Descent of property. ]

Personal property descended to males and females in equal shares, butthe 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 commonlaw when it dealt with their relation to criminal matters. When a wifecommitted an offense against the state she possessed a separate anddistinct life and personalty, for the purposes of punishment. It is truethat she was still inferior and this distinction was recognized andemphasized by the difference in the penalties imposed for the commissionof the same crimes, these penalties being in inverse ratio to theimportance of the criminal. 

[Sidenote: Theft, burglary, etc. ]

[Sidenote: Presumption of innocence. ]

If a wife committed theft, burglary or other offenses in the company orpresence of her husband, the law presumed that she acted undercompulsion and held her not guilty, but this presumption did not extendto cases of murder or treason, and it might always be overcome by proofthat she acted independently. The exception in cases of murder ortreason, we are informed, was not alone because of the magnitude of thecrimes, but rather on account of "the husband having broken through themost sacred tie of social community by rebellion against the state, hadno 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, andhe might avail himself of the benefit of clergy, and secure immunityfrom punishment, provided he could read, but women were denied allbenefit of clergy because of their sex, and because they "were notcalled upon to read. " If a wife killed her husband it was a much moreserious offense, he being her lord, and she was guilty of treason andsubject 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 thecriminal, men being sentenced to be drawn and hanged, while women weredrawn and burnt alive. 

[Sidenote: Larceny, bigamy, etc. ]

In larceny, bigamy, manslaughter and other crimes, men might claim thebenefit of clergy and by taking holy orders, escape all punishment, except branding in the hand and a few months imprisonment, while womenmight receive sentence of death and be executed for the first offense. Later the law was changed so that in cases of simple larceny under thevalue of ten shillings, they might be burned in the hand and whipped, stocked or imprisoned for any time not exceeding one year. Thedisability of sex and of ignorance were both finally removed and all menand 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 recoveredby husband, father or guardian, but the woman, who might be wronged, hadno right of action for the injury to herself, and the State did notrecognize any wrong to society by an injury to the person of one who wascivilly dead. The crime of rape was punishable by death, and consent, though proved, was no defense, if the offense was committed upon a childunder ten years of age. 

[Sidenote: Right of appeal. ]

Magna Charta, granted by King John, while redressing many hardships andgrievances incident to feudal times, and confirming and securing to thepeople many rights and liberties, among which was the right of the wifeto dower in her husband's property, denied to women the right of appealexcept in case of the death of their husbands. The right of appeal wasthe privilege of private prosecution for crime. (Analogus to our presentmethod of commencing prosecutions by information. )

According to Blackstone, even the disabilities of the wife were for themost part intended for her protection and benefit, and he adds: "Sogreat 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, wasbased alone upon the assumption that women were, and must be alwaysdependent by reason of their sex. In the light of a broader humanity, the distinctions seem cruel and barbarous, but that they were the resultof any spirit of injustice or intentional tyranny, or of any desire onthe part of men to oppress women or impose upon them any hardship orburden because of their physical weakness, is not at all probable. Theywere merely the outgrowth of the conditions incident to ruder stages ofsocial development, and were, perhaps, as favorable to women at thatperiod, as the laws of our own times will be considered when judged inthe light of the civilization of the future, after successive centuriesof intellectual and moral growth have been added to the enlightenment ofto-day. 

Law of Iowa. 

CHAPTER II. 

MARRIAGE. 

[Sidenote: Contract. ]

Marriage is a civil contract requiring the consent of parties capable ofentering into other contracts, except as herein otherwise declared. [§3376. ] While marriage is defined to be a contract, it is rather astatus or relation assumed by the act of marriage. Society is recognizedas a third party to the agreement and as having a well defined interestin the duties and obligations of such relation. It is because of thisinterest, that the law defines the qualifications of the parties, theterms, rights and obligations of the contract, and also for what causesand in what manner it may be terminated. "It stands alone and can beassimilated to no other contract. "

[Sidenote: Between what ages valid. ]

A marriage between a male person of sixteen and a female of fourteenyears of age is valid, but if either party has not attained the age thusfixed, the marriage is a nullity or not at the option of such party madeknown at any time before he or she is six months older than the age thusfixed. [§3377. ] The common law rule fixing the age of consent tomarriage at fourteen for males and twelve for females is not repealed inIowa. The time in which the parties may disaffirm the marriage ismerely extended by the statute. 

[Sidenote: License. ]

Previous to any marriage within this state, a license for that purposemust be obtained from the clerk of the district court of the countywherein the marriage is to be solemnized. [§3378. ] As under the commonlaw, no express form or ceremony is necessary to constitute a validmarriage, any mutual agreement between the parties to assume therelation of husband and wife, followed by cohabitation, beingsufficient, provided there is no legal disability on the part of eitherexisting at the time. It is immaterial how the intention to marry isexpressed. It has been held in this state that a marriage was legal, where the woman intended present marriage, though the man did not, wherethey had assumed the relation of husband and wife, and his conduct hadbeen such as to justify her in believing that he had intended presentmarriage. Marriages by consent only, are not rendered void by aprovision punishing parties for solemnizing marriages in any othermanner 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 underthe age necessary to render the marriage absolutely valid, nor shall itbe granted where either party is a minor, without the previous consentof the parent or guardian of such minor, nor where the condition ofeither party is such as to disqualify him from making any other civilcontract. [§3379. ]

[Sidenote: Proof of age. ]

Unless such clerk is acquainted with the age and condition of theparties for the marriage of whom the license is applied for, he musttake the testimony of competent and disinterested witnesses on thesubject. [§3380. ]

[Sidenote: Record. ]

He must cause due entry of the application for the issuing of thelicense 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 ofcompetent age and condition, or that the requisite proof of such factwas 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 mustbe filed in the clerk's office after being acknowledged by the saidparent or guardian, or proved to be genuine, and a memorandum of suchfacts must also be entered in said book. [§3382. ]

[Sidenote: Penalty. ]

If the clerk of the district court grants a license contrary to theprovisions of the preceding sections, he is guilty of a misdemeanor, andif a marriage is solemnized without such license being procured, theparties so married and all persons aiding in such marriage are likewiseguilty of a misdemeanor. [§3883. ]

The punishment provided for misdemeanors is imprisonment in the countyjail not more than one year, or by fine not exceeding five hundreddollars, 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 townwherein 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 licensedaccording to the usages of his denomination. [§3384. ]

[Sidenote: Certificate]

After the marriage has been solemnized the officiating minister ormagistrate shall, on request, give each of the parties a certificatethereof. [§3385. ]

[Sidenote: Penalty. ]

Marriages solemnized with the consent of parties in any other mannerthan is herein prescribed, are valid, but the parties themselves, andall other parties aiding or abetting, shall forfeit to the school fundthe sum of fifty dollars each. [§3386. ]

[Sidenote: Return. ]

The person solemnizing marriage shall forfeit a like amount, unlesswithin ninety days after the ceremony he shall make return thereof tothe clerk of the district court. [§3387. ]

[Sidenote: Register of marriages. ]

The clerk of the district court shall keep a register containing thenames of the parties, the date of the marriage, and the name of theperson by whom the marriage was solemnized, which, or a certifiedtranscript therefrom, is receivable in all courts and places as evidenceof the marriage and the date thereof. [§3388] The register of marriageskept by the clerk is always sufficient to establish marriage, in theabsence of evidence to the contrary, but record evidence is notindispensable. The fact of marriage may be shown in various ways. It maybe proved by the admissions or uncontradicted testimony of either party, or a legal presumption may be raised by the testimony of either husbandor wife with proof of continued cohabitation. The evidence of witnesseswho were present and witnessed the marriage is always sufficient. 

[Sidenote: Peculiar mode. ]

These provisions so far as they relate to procuring licenses and to thesolemnizing of marriages, are not applicable to members of anyparticular denomination having, as such, any peculiar mode of enteringthe marriage relation [§3389]. 

[Sidenote: Husband responsible for return. ]

But when any mode is thus pursued which dispenses with the services of aclergyman or magistrate, the husband is responsible for the returndirected to be made to the clerk and is liable to the above namedpenalty if the return is not made [§3390]. 

[Sidenote: When void. ]

Marriages between persons whose marriage is prohibited by law, or whohave a husband or wife living, are void; but if the parties live andcohabit together after the death of the former husband or wife, suchmarriage shall be deemed valid [§3392]. A judicial decree is notnecessary to annul a marriage between parties one of whom has a wife orhusband living at the time, as such marriages are absolutely void, nordoes such marriage confer any right upon either in the property of theother. A marriage procured by fraud or force is void, because it lacksthe essential element of consent. Such marriages may be annulled by acourt of equity, but false representations as to character, socialposition or fortune do not constitute such fraud on the opposite partyas 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 propertyacquired by descent, gift or purchase, and manage, sell, convey, anddevise the same by will, to the same extent and in the same manner thatthe husband can property belonging to him. [§3393. ] The husband is thelegal head of the family and household furniture, pictures and allsimilar property used in the house occupied by husband and wife, isconsidered as being in the possession of the husband and under hiscontrol. Such property may be sold or mortgaged by the husband withoutthe consent of the wife. Property conveyed to both jointly is held bythem as tenants-in-common. Each owns an undivided one-half interest insuch property, and this interest may be sold on execution to satisfyclaims against husband or wife as the case may be. Property purchasedwith funds belonging to both husband and wife is owned by them jointly, the interest of each being in proportion to the amount of the purchaseprice contributed by each. 

[Sidenote: Real property, Conveyance, or contract. ]

A married woman may convey or encumber any real estate or interesttherein belonging to her, and may control the same, or contract withreference thereto, to the same extent, and in the same manner as otherpersons [§3106]. 

[Sidenote: Conveyance by husband and wife. ]

Every conveyance made by a husband and wife shall be deemed sufficientto pass any and all right of either to the property conveyed, unless thecontrary appears on the face of the conveyance [§3107]. While Iowa wasstill a territory, in 1840, power was conferred upon a married woman torelease her dower and to convey her real estate by any conveyanceexecuted by herself and husband and acknowledged by a separateexamination and acknowledgment. This law was re-enacted in 1846, and wasthe first law passed in the State of Iowa for the better protection ofmarried women. This remained the law until 1851, when an act was passedby which she might convey her interest in real estate "the same as anyother person. "

[Sidenote: Interest of either in other's property. ]

When property is owned by either the husband or wife, the other has nointerest therein which can be the subject of contract between them, orsuch interest as will make the same liable for the contracts orliabilities of either the husband or wife who is not the owner of theproperty, except as provided in this chapter. [§3394. ] The distributiveshare or dower interest of each in the property of the other, isinchoate and becomes complete only upon the death of the owner of theproperty; consequently any agreement between the husband and wiferelinquishing their respective interests in each other's property, though such agreement should be made in contemplation of separation isinvalid. Upon a dissolution of the marriage relation by divorce, thehusband and wife may contract with each other with reference to adivision of the property, provided the contract is reasonable, just andright. A husband may pay taxes and interest on an incumbrance on ahomestead owned by his wife, but occupied by both, and may make repairsupon the same. He may make improvements on land owned by the wife andmay expend time and labor in caring for any of her property, withoutrendering such property liable for his debts, provided there is nocollusion between them and no evidence of fraud on the part of either. 

A wife's property cannot be taken for her husbands debts, although itmay be in possession of the husband and the creditors have no notice ofthe wife's ownership. 

[Sidenote: Remedy by one against the other. ]

Should either the husband or wife obtain possession or control ofproperty belonging to the other, either before or after marriage, theowner of the property may maintain an action therefor, or for any rightgrowing out of the same, in the same manner and extent as if they wereunmarried. [§3395. ] If property or money belonging to the wife, but inpossession of the husband is used by him, with her knowledge andconsent, in the payment of debts incurred for family expenses, or forother purposes connected with the support of the family, she cannotrecover for the same, in the absence of an express agreement on his partto repay her. If a wife advances money or property to her husband to beused as he may choose, the presumption is that she does so in view ofthe mutual benefits which may accrue from the advancement and she cannotrecover 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 berecovered from her alone, and her husband shall not be responsibletherefor except in cases where he would be jointly responsible with herif the marriage did not exist [§3396. ] This statute abrogates the ruleof the common law, making a husband responsible for civil injuriescommitted by his wife. The common law presumption that criminal actsdone in the presence of the husband were by compulsion, is stillrecognized 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 orin favor of the other shall be valid to the same extent as between otherpersons [§3397. ] When the rights of creditors might be prejudiced bytransfers of property between husband and wife, such transactions willbe closely scrutinized, and the utmost good faith must plainly appear, but where no fraudulent intention is shown they will be upheld if basedupon an adequate consideration. If a conveyance is made by the husbandto the wife when the husband is largely indebted and insolvent, suchconveyance is presumptively fraudulent, but a conveyance to a wife inpayment of a valid claim, even though made at a time when the husband islargely indebted to others, will not be considered fraudulent the wifehaving the same right as other creditors to obtain payment. Allcontracts between husband and wife where no other consideration appearsthan an agreement to perform some duty already incumbent upon theparties, because of their relations as husband and wife, are againstpublic policy, and will not be enforced in law. Such, for example, as apromise by the husband to pay money to the wife to induce her to livewith him, when she has no legal ground for not living with him; or anagreement to allow the husband to obtain a divorce when he has no legalcause for divorce, or a conveyance of property in consideration offuture care and support because the husband is growing old; or acontract between husband and wife by which the husband agrees to pay thewife at stated intervals, sums of money, in consideration of thefaithful performance by the wife of the obligations incident to themarriage relation. But our courts have held that exempt property may betransferred by the husband to the wife without any consideration; that adeed from husband to wife in consideration of a dismissal by the latter, of a proceeding for divorce, is valid; that a contract between husbandand wife by which the wife, for a consideration, after a decree ofdivorce, agrees to release all her dower interest in the real estate ofthe husband, is binding. Voluntary conveyances, in favor of thirdparties, by a man or woman in contemplation of marriage, and with theevident intention of defeating the marital rights of the other party, insuch property, will be held fraudulent, and may be set aside in anaction by the injured party after marriage. Contracts and conveyancesmade before marriage and duly recorded, will not be set aside on accountof the marriage relation, as the fact of recording is sufficient tocharge the wife with notice of the transactions. Ante-nuptial contracts, if free from fraud and imposition, are valid, and such a contractstipulating that each is to have the untrammeled and sole control of hisor her own property, real and personal, as though no marriage had takenplace, will be enforced. The dower right of each in the other's propertyis completely waived by such contract. 

[Sidenote: Abandonment of either. ]

In case the husband or wife abandons the other and leaves the state, andis absent therefrom for one year without providing for the maintenanceand support of his or her family, or is confined in jail or thepenitentiary for the period of one year or upward, the district court ofthe 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 propertyof the husband or wife for the support and maintenance of the family andfor the purpose of paying debts. Notice of such proceedings shall begiven as in ordinary actions, and anything done under or by virtue ofthe order of the court, shall be valid to the same extent as if the samewas done by the party owning the property. [§3398. ] A wife who isabandoned by her husband without her fault, may pledge his credit fornecessaries, and if left in the management of his business may make allcontracts incident to such management. She may also sell exempt propertyand apply the proceeds towards the support of the family beforeabsolutely 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 byvirtue of the power contemplated in the preceding section, shall bebinding on both, and during such absence or confinement, the personacting under such power, may sue and be sued thereon, and for all actsdone, the property of both shall be liable. No suit or proceeding shallabate or be in anywise affected by the return or release of the personconfined, but he or she may be permitted to prosecute or defend jointlywith the other. [§3399. ]

[Sidenote: Decree set aside. ]

The husband or wife affected by the proceedings contemplated in thepreceding sections, may have the order or decree of the court set asideor annulled, but the setting aside of such decree or order shall innowise 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, establishthe presumption that the husband is the agent of the wife, for thetransaction of business for her, but in order to bind her, he must beexpressly authorized to act as agent, or she must, after knowledge ofthe act, expressly or impliedly ratify it. Such agency or ratificationmay be established by circumstances, and the degree of evidence requiredin such cases, is less than is necessary to establish an agency betweenindependent parties, or the ratification by the husband, of acts done bythe wife or his agent. 

[Sidenote: Wages of wife. ]

A wife may receive the wages of her personal labor and maintain anaction therefor in her own name, and hold the same in her own right; shemay prosecute and defend all actions at law or in equity for thepreservation and protection of her rights and property as if unmarried. [§3402. ] The husband is entitled to the wife's labor and assistance inthe duties and obligations growing out of the marriage relation, and toher earnings, if she is not engaged in a separate business on her ownaccount; but her earnings for services performed for others than herhusband or acquired in carrying on an independent business, belong toher alone. Such earnings may be invested in property and it will beexempt 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. Ifshe suffers personal injury by which the husband is deprived of herservices or society he has a right of recovery for such loss and forexpenses for medicine and medical treatment. The wife cannot recover insuch case, unless it appears that she has expended her own money inpayment of such expenses. If, at the time of the injury she is engagedin a separate business, and death results, the husband may still recoverfor loss of society and expenses, but an action for damages can bebrought only by the administrator of her estate. Although husband orwife may maintain an action against the other for the recovery ofproperty, neither has a right of action for damages sustained by theinfliction of personal injury, and this is true even though the oneinflicting the injury has been criminally convicted and fined for theassault. 

[Sidenote: Property of one not liable for debts of the other. ]

Neither husband or wife is liable for the debts or liabilities of theother incurred before marriage, and except as herein otherwise declared, they are not liable for the separate debts of each other; nor are thewages, earnings, or property of either, nor is the rent or income ofsuch property liable for the separate debts of the other [§3403. ] Thehusband is liable for necessaries furnished the wife, upon an impliedobligation to provide for her a reasonable support. The term"necessaries, " is not confined to the supply of things actually demandedfor her sustenance, such as food, clothing and medicine, but includesall that may be needful for her comfort and happiness according to herrank and station in society. In determining the extent of the husband'sliability, it is always proper to consider the wife's social positionand the circumstances and condition of the family, and these will, ofcourse, vary in each particular case. It has been held that jewelry isincluded in the term necessaries and that attorney's fees in divorceproceedings by the wife, can be recovered from the husband. If the wifeis compelled to leave her husband because of cruel and improper conducton his part, the husband is still presumed to have extended to her ageneral 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 sameenforced by or against her to the same extent and in the same manner asif she were unmarried [§3404. ] By this provision a wife is clothed withthe same rights enjoyed by her husband, and must, therefore, assume thesame liabilities. She has the same freedom to contract in reference toher property, or other matters, and will be held to the same strictaccountability. The law will enforce her obligations with the sameimpartiality, whether such obligations are express or implied. She maycontract with reference to all kinds of property, including real estate, and may mortgage her property as security for the debt of another, inprecisely 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 arechargeable upon the property of both husband and wife, or of either ofthem, and in relation thereto they may be sued jointly or separately. [§3405. ] Both husband and wife are personally responsible for familyexpenses. The credit may be extended to the husband and the contractmade with him alone, and the wife will be liable though she may have noknowledge of the purchase and has given no consent thereto. It issufficient to show that the articles were used, or kept for use in thefamily, and a judgment may be rendered against the wife alone. But thehusband cannot subject the property of his wife to any liability forarticles for family use when it appears that such articles were not anecessity, if the wife has objected to the purchase and notified theseller that she will not pay for the same. "Expenses of the family, " arenot limited to necessary expenses, but whatever is kept or used in thefamily is included in the term. A piano, an organ, a watch and otherjewelry, a cook stove and fixtures, have all been held to come withinthe term "family expense, " for which the property of the wife is liable. But a reaping machine, though used by the husband in the business bywhich he supports his family, is not a legitimate item of familyexpense, nor can a plow be included therein. The expense of treatment ofa wife at a hospital for the insane, has been held not to be a familyexpense. Money borrowed by the husband and used in the purchase ofarticles which, if obtained on credit, would constitute items of familyexpense, cannot itself form such an item of family expense, that thewife may be held liable, unless the money was furnished at her request, and the account assigned to the party furnishing the money. If amerchant with whom the husband has no account is notified in writing, not to sell goods to the wife and charge them to him, the merchantcannot hold the husband responsible, unless it appears that the latterfails to provide necessaries otherwise for his family. If the family issupported in whole, or in part, by the wife, she cannot recover back themoney thus expended, from her husband or his estate, as the law placessuch duty equally on both. 

[Sidenote: Removal from homestead. ]

Neither husband nor wife can remove the other, nor their children fromtheir homestead without his or her consent, and if he abandons her, sheis entitled to the custody of their minor children, unless the districtcourt, 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 adeed, and relinquishing or conveying his or her right to the realproperty of the other, the sane person may petition the district courtof the county where such petitioner resides, or of the county where saidreal estate is situated, setting forth the facts and praying for anorder authorizing the applicant or some other person to execute a deedof conveyance and thereby relinquish the interest of either in the realproperty of the other [§3407. ]

[Sidenote: Proceedings and decree. ]

Upon such application the court has power to appoint some person orattorney guardian of the person alleged to be insane, who shallascertain as to the propriety, good faith and necessity of the prayer ofthe petitioner, and who shall have power to resist said application. Ifthe court is satisfied that the petition is made in good faith, and thatthe petitioner is the proper person to exercise the power and make theconveyance, and that such power is necessary and proper, said courtshall enter up a decree authorizing the execution of all suchconveyances, for and in the name of such husband or wife, by such personas 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 estateso conveyed; said power shall cease and become void as soon as he or sheshall become sane and of sound mind, and apply to the court to revokesaid power, and the same shall be evoked; but such revocation shall innowise affect conveyances previously made. [§3410. ]

CHAPTER IV. 

DIVORCE, ANNULLING MARRIAGES AND ALIMONY. 

[Sidenote: Jurisdiction. ]

The district court where either party resides, has, jurisdiction of thesubject matter of this chapter. [§3411]. State legislatures have powerto grant divorces in all cases where such power has not been conferredon the courts of the state by some constitutional provision orlegislative enactment. The legislature of this state has been deprivedof the power to grant divorces for any cause by Article 3, §27, of theconstitution, which provides that "no divorce shall be granted by thegeneral assembly. " A divorce obtained from a court not havingjurisdiction is absolutely void. The residence necessary to give thecourt jurisdiction must be permanent, or at least of a sufficient periodof time to indicate an intention of continued residence andcitizenship. The general rule is that the domicile of the wife andchildren is to be considered the same as that of the husband, but in aproceeding for divorce the law recognizes that husband and wife haveseparate domiciles, and a valid divorce may be granted where only one ofthe parties resides, but if they reside in different states, the courthaving jurisdiction of the party making application for the divorce maygrant the decree, but it has no authority to make a decree as to thecustody of the children, if they are non-residents of the state wherethe decree of divorce is rendered. A decree of divorce can always be setaside for fraud in obtaining it. 

[Sidenote: Petition. ]

When the application for divorce is against a party not residing in thisstate, the petition, in addition to the facts on account of which theapplicant claims the relief sought, must state that such applicant hasbeen for the last year a resident of the state, stating the town andcounty in which he has resided, and the length of his residence therein, after deducting all absences from the state; that he is now a residentthereof; that such residence has been in good faith and not for thepurpose of obtaining a divorce only; and it must in all cases state thatthe application is made in good faith and for the purpose set forth inthe petition. [§3412. ]

[Sidenote: Verification. Evidence. Hearing. ]

All the allegations of the petition must be verified by oath and provedby competent evidence. No divorce shall be granted on the evidence ofthe applicant alone, and all such actions shall be heard in open courton the testimony of witnesses or depositions. [§3413. ] No divorce can begranted by consent of parties unless grounds therefor can be shown bycompetent evidence, and if collusion or conrivance on the part of thedefendant can be shown, such fact will be a valid defense. 

[Sidenote: Causes. ]

Divorce from the bonds of matrimony may be decreed against the husbandfor the following causes:

1. When he has committed adultery subsequent to the marriage;

2. When he wilfully deserts his wife and absents himself without areasonable 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 lifeof his wife. [§3414. ]

A previous law of our state provided that when it was fully apparent tothe court that the parties could not live in peace and happinesstogether, and that their welfare required a separation, a decree ofdivorce might be granted, but no valid divorce can now be granted forany other cause than for some one of those enumerated above; and this istrue, although it may plainly appear that a party has wholly disregardedhis marriage vows and obligations in various other ways. 

[Adultery. ]

As the direct fact of adultery can seldom be proved, when a divorce isasked on this ground, it will be sufficient if the fact can be shown bycircumstances which would be inconsistent with any rational theory ofinnocence, and such as would lead the guarded discretion of a just mindto the conclusion of the truth of the facts. The disposition of theparties may be shown, with the fact of their being together and havingan opportunity to commit the act. 

[Sidenote: Desertion. ]

A reasonable cause for desertion must be some wrongful conduct on thepart of the other party, and must be of such a serious nature that itwould _prima facie_ entitle the party deserting to a divorce. If husbandand wife mutually agree to separate, such separation will not constituteground for divorce, unless the party applying for the divorce, in goodfaith expresses a desire to live with the other. Where the wife iscompelled to leave her husband on account of inhuman treatment, such aswould entitle her to a divorce, such desertion cannot be made the basisof proceedings for divorce by the husband, for in such case he and notshe is guilty of desertion, and this may be alleged by the wife, withother causes, in seeking a divorce. A wife may be justified in leavingher husband because of his failure to protect her from insult and abuse, and when she leaves him for this cause, her desertion will not begrounds for divorce. 

[Sidenote: Felony. ]

A conviction for felony which may be subject to reversal does notconstitute ground for divorce, but such conviction must be final andabsolute. 

[Sidenote: Drunkenness. ]

If a woman marries a man knowing him to be intemperate, though she doesso in the hope of reforming him, the courts will not interfere aftermarriage to grant her relief from the result of her misplacedconfidence, but where the habit has been acquired subsequent to themarriage and has become fixed and the husband is habitually drunk, though not in such condition during business hours, it is such habitualdrunkenness as will entitle the wife to a divorce. 

[Sidenote: Cruel treatment. ]

Cruel and inhuman treatment, to constitute ground for divorce must be ofsuch a nature as to endanger life, but need not necessarily consist ofphysical violence. Even where no single act or number of acts can beshown which might cause reasonable apprehension of harm to life, if theill treatment as an entirety is of a nature to affect the mind andundermine health to such a degree that the life will be ultimatelyendangered, it will entitle the injured party to a divorce. Ungovernableoutbursts of rage, the use of profane and obscene language, applyinginsulting epithets to the wife in the presence of others, acts ofcruelty and neglect in sickness, coupled with failure to providesuitable food and clothing, have all been held to be such cruelty, which, if long continued, would result in danger to life. Condonation isalways a valid defense in proceedings for divorce. If the wrong is onceforgiven, it cannot afterwards be made a ground for divorce, but themere fact that a wife continues to live in the same house with herhusband, and does the household work, is not such condonation as willdefeat her action. 

[Sidenote: Husband from wife. ]

The husband may obtain a divorce from his wife for like causes, and alsowhen the wife at the time of the marriage was pregnant by another thanher husband, unless such husband had an illegitimate child or childrenthen 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 insuch case, a husband who had an illegitimate child at the time of themarriage, unknown to the wife, cannot take advantage of this fact toobtain a divorce. 

[Sidenote: Cross petition. ]

The defendant may obtain a divorce for the causes as above stated, byfiling a cross petition. [§3416. ]

[Sidenote: Maintenance during litigation. ]

The court may order either party to pay the clerk a sum of money for theseparate support and maintenance of the adverse party and the children, and to enable such party to prosecute or defend the action. [§3417. ] Inapplying for an order granting temporary alimony it is not necessary toshow that the party making the application is entitled to a divorce. Itis sufficient if it appears that such party is without means of supportand unable to prosecute the action without such allowance. The fact ofmarriage must be either admitted or proved. The court may allowattorney's fees in proceedings for divorce and alimony, but the partyagainst whom the action is brought, is not liable, if the other party isunsuccessful. Where the applicant for divorce is ordered to pay acertain sum of money to enable the defendant to defend, it he fails toobey this order, the action may be dismissed. 

If it appears that the father is an unfit person to have the custody ofthe children, pending a proceeding for divorce, the court has power toprovide for their custody and maintenance as may be for the bestinterest of the children. 

[Sidenote: Attachment. ]

A judgment or order for temporary alimony is a lien upon the property ofthe person against whom the order is directed, and such property may belevied upon by attachment and held to satisfy the decree of the court. [§3418. ] Attachment may be allowed without bond and it may be granted ina suit to annul an illegal marriage as well as in one for divorce. Itmay be levied on the homestead as well as other property. Thedisposition of property by the defendant may also be restrained byinjunction. 

[Sidenote: Showing. ]

In making such orders, the court or judge shall take into considerationthe age, condition, sex and pecuniary condition of the parties, and suchother matters as are deemed pertinent, which may be shown by affidavitsin addition to the pleadings or otherwise, as the court or judge maydirect. [§3419. ]

[Sidenote: Alimony, Custody of children, Changes. ]

When a divorce is decreed, the court may make such order in relation tothe children, property, parties, and the maintenance of the parties asshall be right and proper. Subsequent changes may be made by the court, in these respects when circumstances render them expedient. [§8420. ] Ingranting a divorce, full power is given the court over the questions ofpermanent alimony and custody of children, and the amount of alimonywill be determined by a careful consideration of the circumstances ofthe parties. The allowance is usually for a certain sum of money, butthe court may set apart a specific portion of property as alimony. Onlyin rare cases and under peculiar circumstances will alimony be grantedto the party in fault. A judgment for alimony may be made a lien uponspecific property, and the court may declare it a lien on the homestead. The court granting a divorce and alimony retains jurisdiction of thesame, and upon a subsequent change in the circumstances of the parties, may modify or change the decree in relation to alimony and custody ofchildren as may seem just and proper and for the best interests of allparties. A suit for alimony without divorce may be brought, where thewife has been compelled to leave her husband on account of misconduct onhis part justifying the separation. The disposition of the children isentirely within the discretion of the court, and the custody may begiven 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 forthem. The best good of the child will be the first and most importantconsideration in determining to whom the custody shall be given. 

[Sidenote: Forfeiture. ]

When a divorce is decreed the guilty party forfeits all rights acquiredby the marriage. [§3421. ] After a decree of divorce neither party canhave any interest in the property of the other except that which isgranted by the decree, and this applies to claim for dower in case ofsurvival. 

[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 thedeath 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 suchmarriage is absolutely void. In case of absence of the husband apresumption of death does not arise until he has been absent seven yearswithout intelligence concerning him. Where a party is insane or idiotic, and is therefore incapable of consenting, a marriage with such personwill be void. When a marriage is absolutely void by law, it is notnecessary to bring an action to annul it, before contracting asubsequent legal marriage. 

[Sidenote: Petition. ]

A petition shall be filed in such cases as in actions for divorce, andall the provisions of this chapter shall apply to such cases except asotherwise provided. [§3423]

[Sidenote: Validity determined. ]

When the validity of a marriage is doubted, either party may file apetition and the court shall decree it annulled or affirmed accordingto the proof. [§3424]

[Sidenote: Children. Legitimacy. ]

When a marriage is annulled on account of the consanguinity or affinityof the parties, or because of impotency, the issue shall beillegitimate, but when on account of non-age, or insanity, or idiocy, the issue is the legitimate issue of the party capable of contractingmarriage. [§3425]

[Sidenote: Prior marriage. ]

When a marriage is annulled on account of a prior marriage, and theparties contracted the second in good faith, believing the prior husbandor 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 thecourt, is the legitimate issue of the parent capable of contracting. [§3426. ]

[Sidenote: Alimony. ]

In case either party entered into the contract of marriage in goodfaith, supposing the other to be capable of contracting, and themarriage is declared a nullity, such fact shall be entered in thedecree, and the court may decree such innocent party compensation as incases 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 majorityby marriage. [§3428. ] The disability of minority may also be terminatedby death. 

[Sidenote: Contracts. ]

[Sidenote: Disaffirmance. ]

A minor is bound not only by contracts for necessaries, but also forhis other contracts, unless he disaffirms them within a reasonable timeafter he attains his majority, and restores to the other party all moneyor property received by him by virtue of the contract and remainingwithin his control at any time after his attaining his majority. [§3429. ] The rule respecting the contract of an infant is, that when thecourt can pronounce it to be to the infant's prejudice, it is void, andwhen to his benefit, as for necessaries, it is good, and when ofuncertain nature, it is voidable, at the election of the infant. As towhat will be "a reasonable time, " within which a minor must disaffirmhis contract, must depend upon the peculiar circumstances of each case. In case of the marriage of a minor the time for disaffirmance willcommence from the date of the marriage. The intention of this law is tolimit the time in which a minor may take advantage of his minority anddisaffirm his contracts, but the disaffirmance may be either before orafter majority, if within a reasonable time after becoming of age. Theminor is under no obligation to restore money or property, unless it isthe identical money or property received by virtue of the contract, andhe may therefore disaffirm his contract without rendering back theconsideration, 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 theminor's own misrepresentations as to his majority, or from his havingengaged in business as an adult, the other party had good reason tobelieve the minor capable of contracting. [§3430. ] If the fact ofminority is known to the other party, the minor will not be bound by hiscontracts, although he may be engaged in business as an adult. The factthat he is engaged in business on his own account will alone besufficient evidence to authorize others to conclude that he has attainedhis majority and will make all contracts to which he is a party, bindingupon him. 

[Sidenote: Natural guardians. ]

The parents are the natural guardians of their minor children and areequally entitled to the care and custody of them. [§3432. ] While aparent is the natural guardian of his child, this guardianship is notabsolute, and may be lost by any misconduct on the part of the parentwhich would render it not best for the child to remain in his care andunder his control. The duty of furnishing support to minor childrenrests equally upon both parents, but neither one is legally liable forthe support of their adult children. An adult child living at home inthe family of the parent, being supported as a member of the family, andperforming services in the household, cannot recover payment for suchservices in the absence of an express contract on the part of the parentto pay for them. A stepfather stands in the position of a parent to thechildren of his wife by a former husband, _provided_, he receives theminto his family. He is entitled to their services and is responsible fortheir education and maintenance. The parents can at any time consent tosurrender the custody of their minor children and transfer this custodyto another by agreement. Articles of adoption properly executedaccording to the requirements of the law upon that subject, arenecessary to invest another with the rights and responsibilities of aparent. 

[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 dischargethe duty, the district court shall appoint a guardian. [§3488. ]

[Sidenote: Of property. ]

If the minor has property not derived from either parent, a guardianmust 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 districtcourt of the county where his parents, or either of them resides; or, ifsuch minor is living separate and apart from his parents, the districtcourt of the county where he resides has jurisdiction. [§3435. ]

[Sidenote: Powers. ]

Guardians of the persons of minors have the same power and control overthem that parents would have if living. [§3440. ]

[Sidenote: Duties. ]

Guardians of the property of minors must prosecute and defend for theirwards. They must also in other respects manage their interests under thedirection of the court. They may thus lease their lands or loan theirmoney during their minority, and may do all other acts which the courtmay deem for the benefit of the ward. [§3441. ] All power of the guardianover the estate of his ward is derived from the appointment of thecourt, but an appointment as guardian will not authorize a sale ofproperty, nor an investment or disposal of money belonging to the ward, without a special order of the court. All expenses for the education andmaintenance of the ward must be kept within the income of his estate. Ifthis should not be sufficient the principal may be resorted to, but notwithout an order of the court. All transactions between guardian andward, where the former has secured an apparent advantage, by way ofgift, or contract or settlement, will be presumed to have been theresult 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 fairand valuable consideration. 

[Sidenote: Property in state. ]

The foreign guardian of any non-resident minor, may be appointed theguardian in this state of such minor, by the district court of thecounty wherein he has any property, for the purpose of selling orotherwise controlling that and all other property of such minor withinthe state, unless a guardian has previously been appointed under thepreceding section. The foreign guardian of any non-resident idiot, lunatic or person of unsound mind may be appointed the guardian of suchward by the district court in like manner and with like effect in allcases where the foreign guardian of a non-resident minor could beappointed the guardian of such minor in this state. Such guardian shallhave the same powers and be subject to the same liabilities as guardiansof resident minors. [§3457. ]

[Sidenote: Guardians of drunkards, spendthrifts and lunatics. ]

When a petition is presented to the district court, verified byaffidavit, 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 ofthe petition have been satisfactorily proved upon the trial, such courtmay appoint a guardian of the property of any such person, who shall bethe guardian of the minor children of his ward, unless the courtotherwise orders. Such court may also appoint the guardian of theproperty of an habitual drunkard as the guardian of his person. If theperson adjudged to be an habitual drunkard has no property, the courtmay 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, entersuch orders as may be necessary, authorizing the guardian of the personof such habitual drunkard to confine and restrain him in such manner andin such place within the state as may, by the court or judge, beconsidered best for the purpose of preventing such drunkard from usingintoxicating liquors, and as may tend to his reformation. [§3468a Sup. ]When it is sought to have a guardian appointed for a person of unsoundmind, the test of his mental capacity is not the degree of prudence andforesight he manifests in the management of his affairs, for "the lawdoes not assume to measure the different degrees of power of the humanintellect, or to distinguish between them where the power of thought andreason exists, " but the question to be determined is whether or not hepossesses sufficient ability to understand in a reasonable manner thenature and effect of his acts, or the business he is transacting. "Although the mind of an individual may be to some extent impaired byage or disease, still, if he is capable of transacting his ordinarybusiness, if he understands the nature of the business in which he isengaged and the effect of what he is doing and can exercise his willwith reference thereto, his acts will be valid, " and he will not beadjudged to be of unsound mind and incapable of managing his businessaffairs. 

[Sidenote: Real estate sold. Allowance to family. ]

Whenever the sale of the real estate of such ward is necessary for hissupport or the support of his family or the payment of his debts, orwill be for the interest of his estate or children, the guardian maysell the same under like proceedings as required by law to authorize thesale of real estate by the guardian of a minor. The court shall, ifnecessary, set off to the wife and children under fifteen years of age, of the insane person or to either sufficient of his property of suchkind as it shall deem appropriate to support them for twelve months fromthe time he was adjudged insane. [§3467. ]

[Sidenote: Custody]

The priority of claim to the custody of any insane person, habitualdrunkard, 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 ageof legal majority as hereinafter described. [§3471. ]

[Sidenote: Indenture. ]

Such binding must be by written indenture, specifying the age of theminor and the terms of agreement. If the minor is more than twelve yearsof age and not a pauper, the indenture must be signed by him of his ownfree 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 hisfamily, or is for any cause incapacitated from giving his assent, then

2. By the mother; and if she be dead or unable, or incapacitated forgiving such assent, then, 3. By the guardian; and if there be no guardian, then by the clerk ofthe 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 isfrom habitual intemperance and vicious and brutal conduct, or fromvicious, brutal and criminal conduct toward said minor child, anunsuitable person to retain the guardianship and control the educationof such child, the court may, if it find the allegations in thecomplaint manifestly true, appoint a proper guardian for the child, andmay if expedient, also direct that said child be bound as an apprenticeto some suitable person until he attains his majority. But nothingherein shall be so construed as to take such minor child if the motherbe a proper guardian. [§3492. ]

The same proceedings may take place and a like order be made, when themother, who for any cause became the guardian of her minor child, is inlike manner found to be manifestly an improper person to retain suchguardianship. [§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 thedistrict, and at all times the master shall clothe the minor in acomfortable and becoming manner. [§3497. ]

[Sidenote: Adoption of children. Who may adopt. ]

Any person competent to make a will is authorized in manner hereinafterset forth, to adopt as his own the minor child of another, conferringthereby upon such child all the rights, privileges and responsibilitieswhich would pertain to the child if born to the person adopting, inlawful wedlock. [§3498. ]

[Sidenote: Consent of parents or officer. ]

In order thereto, the consent of both parents if living and not divorcedor separated, and if divorced or separated, or, if unmarried, theconsent of the parent lawfully having the care and providing for thewants of the child, or if either parent is dead, then the consent of thesurvivor, or if both parents be dead, or the child shall have been andremain abandoned by them, then the consent of the mayor of the citywhere the child is living, or if not in a city, then the clerk of thedistrict court of the county where the child is living, shall be givento such adoption, by an instrument in writing signed by the parties orparty consenting, and stating the names of the parents, if known, thename 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 suchchild is hereafter to be called and known, and stating also that suchchild is to be given to the person adopting, for the purpose of adoptionas his own child. [§3499]

[Sidenote: Instrument acknowledged and recorded. ]

Such instrument in writing shall be also signed by the person adoptingand shall be acknowledged by all parties thereto in the same manner asdeeds affecting real estate are required to be acknowledged; and shallbe recorded in the recorder's office in the county where the personadopting resides, and shall be indexed with the name of the parents byadoption as grantors and the child as grantee, in its original name ifstated in the instrument, [§3500. ] A strict compliance in everyparticular with the provisions of the statutes is essential toconstitute a legal adoption and to confer upon the adopted child rightsof inheritance. If a minor child has a guardian his consent must beobtained before the child can be legally adopted. 

[Sidenote: Effect. ]

Upon the execution, acknowledgment and filing for record of suchinstrument, the rights, duties and relations between the parent andchild by adoption, shall, thereafter, in all respects, including theright of inheritance, be the same that exists by law between parent andchild by lawful birth. [§3501]. The right of a child by adoption toinherit from the parents by adoption, depends upon a strict compliancewith the requirements of the law in every particular, including theacknowledgment and recording of the articles of adoption. It is alsoessential that the instrument shall be filed for record before the deathof the adopted parent and while the child is a minor. A child byadoption does not lose the right to inherit from his natural parents, but is entitled to all rights of inheritance from both natural andadopted parents. 

[Sidenote: Maltreatment. ]

In case of maltreatment committed or allowed by the adopted parent, orpalpable neglect of duty on his part, toward such child, the custodythereof may be taken from him and entrusted to another at his expense, if so ordered by the district court of the county where the parentresides; or the court may, on showing of the facts, require from theadopted parent, bond with security, in a sum to be fixed by him, thecounty being the obligee, and for the benefit of the child, conditionedfor the proper treatment and performance of duty towards the child onthe part of the parent; but no action of the court in the premises shallaffect or diminish the acquired right of inheritance on the part of thechild, 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 incapacityof the father, or in case of his abandoning or neglecting to provide forhis children, the mother shall be considered their legal guardian forthe purpose of making surrender of them to the charge and custody ofsuch corporation; and in all cases where the person or persons legallyauthorized to act as the guardian or guardians of any child are notknown, the mayor of the town or city where such home is located, may, inhis 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 themayor, or to any justice of the peace, within such city or town, thatthe father of any child is dead, or has abandoned his family, or is anhabitual drunkard, or imprisoned for crime, and the mother of such childis an habitual drunkard or is in prison for crime, or the inmate of ahouse of ill-fame, or is dead or has abandoned her family, or that theparents of any child have abandoned or neglected to provide for it, thensuch judge, mayor, or justice of the peace may, if he thinks the welfareof 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 friendlessaccording to the provisions of these sections, such home becomes thelegal guardian of such child, and may exercise the rights and authorityof parents over such children and may apprentice or provide for theadoption 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 hisproperty except what is sufficient to pay his debts, or what is allowedas a homestead, or otherwise given by law as privileged property to hiswife and family. [§3522. ] The validity of a will depends upon the mentalcapacity of a testator and the fact that he was uninfluenced in makingthe disposition of his property. If it appears that the testator wasincapable of exercising discretion and sound judgment and of fullyrealizing the effect and consequences of the will, though he may not beabsolutely insane, he will not be in such mental condition that he canmake a legal will. If he is of weak mind and it appears that he wasimposed upon or unduly influenced, such facts will invalidate the will. A testator having testamentary capacity may dispose of his property inany manner, and to any person he may choose, and may deprive his heirsof any share in his estate, without any explanation or any expressdeclaration of disinheritance. The fact that a will is unjust andunreasonable, in the absence of proof of undue influence, orinsufficient capacity, will not render the will void. 

[Sidenote: Subsequent property. ]

Property to be subsequently acquired may be devised when the intentionis clear and explicit. [§3523. ] If the intention to convey propertyacquired after the execution of the will is apparent or may be inferredfrom 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 bebequeathed 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 hispersonal 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 twocompetent witnesses and signed by the testator, or by some other personin his presence and by his express direction. [§3526. ] It is necessarythat the witnesses shall subscribe the will, but not that they shallhave any knowledge of its contents, nor that they shall see the testatorsign it. It is sufficient if the signature is adopted or acknowledged intheir presence. If a will is made with the intention of disposing ofreal property it must be executed according to the requirements of thelaws 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 ofthe testator's estate, he may still receive such portion to the extentin value of the amount devised. [§3528. ]

[Sidenote: Revocation. ]

Wills can be revoked in whole or in part, only by being canceled ordestroyed by the act or direction of the testator with the intention ofso revoking them, or by the execution of subsequent wills. [§3529. ] Thebirth of a child after the execution of a will but before the death ofthe testator, operates as a revocation of the will, and the birth andrecognition of an illegitimate child has the same effect. Declarationsof the testator to the effect that he intended to revoke the will, willnot be sufficient to prove a cancellation. 

[Sidenote: Cancellation. ]

When done by cancellation, the revocation must be witnessed in the samemanner as the making of a new will. [§3530. ]

[Sidenote: Executors. ]

If no executors are named in the will, one or more may be appointed tocarry it into effect. [§3532. ]

[Sidenote: Posthumous children. ]

Posthumous children unprovided for by the father's will, shall inheritthe 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 amountso devised to him unless from the terms of the will a contrary intent ismanifest. [§3537. ] The word heir in this section does not include thewidow of the testator, and she cannot inherit from a child to whomproperty has been devised by his father, but who has died before thefather. 

[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 atemporary 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 asadministrators 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 toapply 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, inhis hands as head of the family, would be exempt from execution, afterbeing inventoried and appraised, shall be set apart to her as herproperty in her own right, and be exempt in her hands as in the hands ofthe decedent. [§3575. ] This provision secures an advantage to the wifewhich does not exist in favor of the husband. Upon the death of the wifeall personal property belonging to her, whether exempt or not, passes toher administrator to be distributed by him among her heirs. A widow isnot entitled to pension money, although the same was exempt in the handsof her husband, the exemption being for the benefit of the pensioner assuch, and not as head of a family. 

[Sidenote: Life insurance. ]

The avails of any life insurance or any other sum of money made payableby any mutual aid or benevolent society upon the death of a member ofsuch society, are not subject to the debts of the deceased, except byspecial contract or arrangement, but shall in other respects, bedisposed of like other property left by the deceased. [§3576. ] A policyof insurance on the life of an individual, in the absence of anagreement or assignment to the contrary shall inure to the separate useof the husband or wife and children of said individual, independently ofhis or her creditors. And the avails of all policies of insurance on thelife of an individual payable to his surviving widow, shall be exemptfrom liabilities for all debts of such beneficiary contracted prior tothe death of the deceased, provided that in any case the total exemptionfor the benefit of any one person shall not exceed the sum of fivethousand dollars. [§1756, Sup. ] The contract between the assured and theinsurance company, cannot be changed in any particular without theconsent of the company, and a testator cannot, by will, change thebeneficiary named in the policy unless it is expressly so provided inthe contract. Where a policy is made payable to the assured or his legalrepresentatives, the proceeds of the policy will pass to theadministrator 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 awife or husband and no children, the entire proceeds of the policy willgo to the wife or husband, and after they have passed into the hands ofthe beneficiary, they will not be subject to execution for the paymentof his or her debts, provided they do not exceed the sum of fivethousand dollars. 

A wife is not her husband's "legal heir" and the entire proceeds of apolicy 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 underfifteen years of age, of the decedent, or to either, sufficient of theproperty of such kind as it shall deem appropriate to support them fortwelve months from the time of his death. [§3579. ] The allowance to thewidow takes priority over all other claims against the estate, andshould be paid immediately. If the widow and children have no othermeans of support the allowance may be made though the estate isinsolvent. It is no part of the dower interest, but is a separate anddistinct right which may be made in addition to dower, or even in caseswhere by contract made before marriage, all rights to dower andinheritance have been relinquished. Real estate may be sold ifnecessary, where the personal property is not sufficient to provide forthe allowance to the widow and children, and the widow may claim theallowance although there are no children, and she may have property ofher own, if the income of such property is not sufficient for hersupport. 

[Sidenote: Expenses of funeral. ]

As soon as the executors are possessed of sufficient means, over andabove the expenses of administration, they shall pay off the charges ofthe last sickness and funeral of deceased. [§3622. ]

[Sidenote: Allowance. ]

They shall, in the next place, pay any allowance which may be made bythe court for the maintenance of the widow and minor children. [§3623. ]

After the funeral expenses and the allowance to the widow and childrenhave been paid, the claims against the estate will be discharged in theorder provided by law, after which, the balance of the property, devisedby will after all expenses of administration have been paid, will bedistributed to the different legatees. 

[Sidenote: Descent and distribution. Personal property. ]

The personal property of the deceased, not necessary for the payment ofdebts, nor otherwise disposed of as hereinbefore provided, shall bedistributed to the same persons and in the same proportions as though itwere real estate. [§3640. ] A husband cannot, by will, deprive his wifeof her share in his personal estate, after his death, but he may disposeof it during his lifetime in any manner he may choose. 

[Sidenote: Payment. ]

The distributive shares shall be paid over as fast as the executors canproperly do so. [§3641. ]

[Sidenote: In kind. ]

The property itself shall be distributed in kind whenever that can bedone satisfactorily and equitably. In other cases the court may directthe 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 additionto what is hereinbefore set apart for their use, may direct a partialdistribution 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 realproperty, possessed by the husband at any time during the marriage, which have not been sold on execution or other judicial sale, and towhich the wife has made no relinquishment of her right, shall be setapart as her property in fee-simple, if she survive him. The same shareof the real estate of a deceased wife shall be set apart to thesurviving husband. All provisions made in this chapter in regard to thewidow of a deceased husband, shall be applicable to the survivinghusband of a deceased wife. The estates of dower and curtesy are herebyabolished. [§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 ofher husband. A wife may release her right of dower in real property byjoining in a joint deed with her husband, although the deed may containno express relinquishment of dower. Contracts between husband and wife, though for a legal and valuable consideration, or with a view toseparation are invalid, the interest of either during the lifetime ofboth, being merely contingent and inchoate, but an agreement previous tomarriage by which each waives all right in the other's estate, or bywhich the wife relinquishes her right of dower, is valid. A woman canclaim no dower in her husband's estate, after his death, if she hasprocured a divorce from him while living and the divorce is in force atthe time of his death. Where the provisions of a will gives the wife acertain interest in the estate, she may always elect whether she willtake her dower interest or under the will. 

[Sidenote: Homestead. ]

The distributive share of the widow shall be so set off as to includethe ordinary dwelling-house given by law to the homestead, or so muchthereof as will be equal to the share allotted to her by the lastsection, unless she prefers a different arrangement. But no differentarrangement shall be permitted where it would have the effect ofprejudicing the rights of creditors. [§3645. ] If the distributive shareof either husband or wife is set out to the survivor from the homestead, it will still retain its homestead character, and will be exempt fromexecution for the payment of debts. 

[Sidenote: Widow of alien. ]

The widow of a non-resident alien shall be entitled to the same rightsin the property of her husband, as a resident, except as against apurchaser from the decedent. [§3646. ] The term "non-resident alien" doesnot refer to one who resides out of the United States, but tonon-residents of the state, who may reside in other states; the purposeof the statute being to encourage the purchase of lands within the statefrom non-resident owners, and to protect purchasers of such real estatefrom 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 ofall parties interested, when such consent can be obtained, or it may beset off by referees appointed by the court. [§3647. ]

[Sidenote: Application]

The application for such measurement by referees, may be made any timeafter twenty days and within ten years after the death of the husband, and must specify the particular tracts of land in which she claims hershare, 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, unlessshe consents thereto within six months after notice to her of theprovisions of the will by the other parties interested in the estate, which consent shall be entered on the proper records of the districtcourt. [§3656. ] This provision applies equally to the husband's rightsunder the will of the wife, and it applies to wills made beforemarriage, as well as to those executed after marriage. Where there is noexpress provision in the will that a devise to the wife is in lieu ofdower, she will take her distributive share of the estate in addition tothe property devised to her by will, unless the allowance of dower wouldbe inconsistent with other provisions of the will. The devise of a lifeestate to a wife will not defeat her right to her distributive share inthe real estate owned by the husband at the time of his death. 

[Sidenote: Descent. To children. ]

Subject to the rights and charges hereinbefore contemplated, theremaining estate of which the decedent died, shall, in the absence ofother 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 shallinherit his share in accordance with the rules herein prescribed in thesame manner as though such child had outlived his parents. [§3658. ] Themother of a child which dies while both of its parents are livingcannot, upon the death of its father, claim any share in his estate, asheir of such child. 

[Sidenote: Wife and parents. ]

If the intestate leave no issue, the one-half of his estate shall go tohis parents and the other half to his wife; if he leaves no wife, theportion 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 thatmay be held exempt from debts. The additional share of the estate whichshe takes in case there are no children, is subject to claims bycreditors of the husband. 

[Sidenote: Surviving parents. ]

If one of his parents be dead, the portion which would have gone to suchdeceased parent, shall go to the surviving parent, including the portionwhich 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 totheir share, by the above rules shall be disposed of in the same manneras if they had outlived the intestate and died in the possession andownership of the portion thus falling to their share, and so on throughascending ancestors and their issue. [§3661. ]

[Sidenote: Wife and her heirs. ]

If heirs are not thus found, the portion uninherited shall go to thewife 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 inlawful wedlock, it shall be equally divided between the one who isliving 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, shallbe considered part of the estate so far as regards the division anddistribution thereof, and shall be taken by such heir, towards his shareof the estate at what it would now be worth if in the condition in whichit was given to him. But if such advancement exceeds the amount towhich he would be entitled, he cannot be required to refund any portionthereof. [§3663. ] A gift to an heir by way of advancement, cannot beconsidered as any part of the estate for the purpose of increasing thedistributive share of the widow, but is to be estimated as part of suchheir's share of the property, after the allowance to the wife of herinterest. 

[Sidenote: Where there are no heirs. ]

If there be property remaining uninherited, it shall escheat to thestate. [§3665. ]

[Sidenote: Illegitimate children. Inherit from mother. ]

Illegitimate children inherit from the mother and the mother from thechildren. [§3670. ] A child born at any time during lawful wedlock ispresumed by the law to be legitimate, but where questions of inheritanceare 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 provenduring the life of the father, or they have been recognized by him ashis children, but such recognition must have been general and notoriousor else in writing. [§3671. ] The recognition in writing need not be aformal avowal. Any writing, as by letter or otherwise, is sufficient. For the purposes of inheritance an illegitimate child stands on exactlythe same footing as if it were legitimate after it has been recognizedby the father, and the birth and recognition of such child revoke a willin the same manner as the birth of a legitimate child, subsequent to theexecution of the will. 

[Sidenote: Father inherits from child. ]

Under such circumstances, if the recognition of relationship has beenmutual, 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 isexempt from judicial sale, [§3163. ] A homestead right may exist inproperty purchased under a bond for a deed, if payments have been madeand the purchaser is in possession. Actual occupancy is necessary toinvest property with the homestead character, but as the exemption rightis for the benefit of the whole family and not alone of the owner, thefact that the head of the family is absent, and may even have acquiredproperty and residence in another state with the intention of removinghis family there, will not divest the homestead of its exemption right, so long as the family continues to occupy it. And the fact that thehusband 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 ofundivided property, or in a leasehold interest. It may attach toportions of a building--as where rooms or floors in a building are usedfor 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, andthe other part is used for a different purpose, that part used as a homemay be exempt, while the other portion may be sold under execution. Theexemption right may be lost by the execution of a mortgage or contractexpressly making the homestead liable, in which both husband and wifejoin; or it may be forfeited when the homestead is used as a saloon orfor any other purpose in violation of the prohibitory liquor law, withthe knowledge and consent of the owner, and this is true even thoughsuch unlawful use is without the consent of the wife of the owner. Insuch case it is subject to judgment obtained because of such illegaluse. [§2419. ] If the homestead is sold, the proceeds are exempt onlywhen invested in the purchase of another homestead, but the exemptiondoes not follow the proceeds out of the state, and where the homesteadwas sold and the proceeds invested in a homestead in another state, andthis was afterwards sold and the proceeds again invested in a homesteadin this state, it was held that the homestead exemption did not attachto the second homestead in Iowa. Removal from the homestead withoutintention of returning will be sufficient to forfeit the homesteadright, but the length of time of absence, in itself, will not constituteabandonment, so long as the intention to return exists. 

[Sidenote: Family defined. ]

A widow or widower, though without children, shall be deemed a familywhile continuing to occupy the house used as such at the time of thedeath of the husband or wife. [§3164. ]

[Sidenote: Conveyance or incumbrance. ]

A conveyance or incumbrance by the owner is of no validity unless thehusband and wife, if the owner is married, concur in, and sign the jointinstrument. [§3165. ] Any conveyance or contract, such as a mortgage, lease, assignment of contract of purchase, or any act in any manneraffecting the title or right of occupancy of the homestead by eitherparty, will be absolutely void, unless concurred in by the other. Ifthe consent of the wife is fraudulently obtained by the husband, theconveyance or incumbrance will be valid, unless it appears that thepurchaser or mortgagee had knowledge of the fraud. A mortgage given forthe purchase money will be valid though given alone by the party takingthe legal title. 

[Sidenote: Liable for taxes. ]

The homestead is liable for taxes accruing thereon, and if platted ashereinafter directed, is liable only for such taxes and subject tomechanics' liens for work, labor, or material, done or furnishedexclusively for the improvement of the same, and the whole or asufficient portion thereof may be sold to pay the same. [§3166. ] All thetaxes against the owner of the homestead become liens thereon, unless itis platted as directed by statute. 

[Sidenote: Liable for debts. ]

The homestead may be sold on execution for debts contracted prior to thepurchase thereof, but it shall not in such case be sold except to supplythe deficiency remaining after exhausting the other property of thedebtor liable to execution. [§3167. ] Debts contracted after theacquisition of the property, but before it has acquired the homesteadcharacter by actual occupancy, may be enforced against the property. Ajudgment upon a debt contracted prior to the purchase of the homestead, although such judgment is not rendered until after the property hasacquired 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 expresslystipulating that the homestead is liable therefor, but it shall not insuch case be sold except to supply the deficiency remaining afterexhausting the other property pledged for the payment of the debt in thesame written contract. [§3168. ] Any written contract other than amortgage or other conveyance, will be sufficient to render the homesteadliable for debts, provided it contains the necessary stipulations, andis signed by the proper parties. 

[Sidenote: What constitutes. ]

The homestead must embrace the house used as a home by the ownerthereof, and if he has two or more houses thus used by him at differenttimes and places, he may select which he will retain as his homestead. [§3159. ] The husband may select his homestead and make the same his homewithout the consent of his wife, and the absence of the wife will notaffect its homestead character. The fact that the husband is the legalhead of the family invests him with the power of establishing his homewherever he may choose, with or without the assent of his wife. Use isessential to give property a homestead character, and an intention tooccupy 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 buildingsthereon and other appurtenances, subject to the limitations contained inthe next section, but must in no case embrace different lots or tracts, unless they are contiguous, or unless they are habitually and in goodfaith 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, andif not within a town plat, it must not embrace in the aggregate morethan forty acres. But if, when thus limited, in either case, its valueis less than five hundred dollars, it may be enlarged until it reachesthat amount. [§3171. ]

[Sidenote: Dwelling appurtenances. ]

It must not embrace more than one dwelling house, or any other buildingsexcept as such are properly appurtenant to the homestead; but a shop orother building situated thereon, and really used and occupied by theowner in the prosecution of his own ordinary business, and not exceedingthree hundred dollars in value, may be deemed appurtenant to suchhomestead. [§3172. ]

[Sidenote: Selecting. Platting. ]

The owner or the husband or wife, may select the homestead and cause itto be marked out, platted, and recorded as provided in the next section. A failure in this respect does not leave the homestead liable, but theofficer having an execution against the property of such defendant, maycause the homestead to be marked off, platted and recorded and may addthe 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 ingiving the description thereof, the direction and distance of thestarting point from some corner of the dwelling-house shall be stated. The description and plat shall then be recorded by the recorder in abook to be called the "homestead book, " which shall be provided with aproper index. [§3174. ]

[Sidenote: Changes. ]

The owner may from time to time change the limits of the homestead bychanging the metes and bounds, as well as the record of the plat anddescription, or may change it entirely, but such changes shall notprejudice conveyances or liens made or created previously thereto, andno change of the entire homestead made without the concurrence of thehusband 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 fromexecution in all cases where the old or former homestead would have beenexempt, 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 topossess and occupy the whole homestead until it is disposed of accordingto law. [§3182. ] The survivor may elect to retain the homestead in lieuof his or her distributive stare of the estate, but in such case theinterest is not one which confers any title to the property which can beconveyed or which will descend to heirs or be subject to the lieu of ajudgment, but it is merely a life interest which may be terminatedwhenever the survivor ceases to use and occupy the homestead as such. Whenever the survivor elects to retain the homestead during life in lieuof dower, it cannot be changed for another homestead, and the right willbe lost by abandonment. 

[Sidenote: Election to retain. Descent. Exemption. ]

The setting off of the distributive share of the husband or wife in thereal estate of the deceased, shall be such a disposal of the homesteadas is contemplated in the preceding section. But the survivor may electto retain the homestead for life in lieu of such share in the realestate of the deceased; but if there be no such survivor, the homesteaddescends to the issue of either husband or wife according to the rulesof descent, unless otherwise directed by will, and is to be held by suchissue 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 soldfor the payment of any debts to which it might at that time besubjected, if it had never been held as a homestead. [§3184. ]

[Sidenote: Devise. ]

Subject to the rights of the surviving husband or wife, as declared bylaw, the homestead may be devised like other real estate of thetestator. [§3185. ] The homestead will remain exempt in the hands of theheirs because of the homestead right of the ancestors, although theproperty 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, hemay hold exempt from execution the following property: All wearingapparel of himself and family kept for actual use and suitable to theircondition, and the trunks or other receptacles necessary to contain thesame; one musket or rifle and shot-gun; all private libraries, familybibles, portraits, pictures, musical instruments, and paintings, notkept for the purpose of sale; a seat or pew occupied by the debtor orhis family in any house of public worship; an interest in a public orprivate burying ground, not exceeding one acre for any defendant; twocows and calf; one horse, unless a horse is exempt as hereinafterprovided; fifty sheep and the wool therefrom and the materialsmanufactured from such wool; six stands of bees; five hogs, and all pigsunder six months; the necessary food for all animals exempt fromexecution, for six months; all flax raised by the defendant on notexceeding one acre of ground and the manufactures therefrom; onebedstead and the necessary bedding for every two in the family; allcloth manufactured by the defendant, not exceeding one hundred yards inquantity; household and kitchen furniture, not exceeding two hundreddollars in value; all spinning-wheels and looms, one sewing machine andother instruments of domestic labor kept for actual use; the necessaryprovisions and fuel for the use of the family for six months; the propertools, instruments or books of the debtor, if a farmer, mechanic, surveyor, clergyman, lawyer, physician, teacher or professor; the horseor the team consisting of not more than two horses or mules, or twoyoke of cattle, and the wagon or other vehicle with the proper harnessor tackle, by the use of which the debtor, if a physician, publicofficer, farmer, teamster, or other laborer habitually earns his living;and to the debtor, if a printer, there shall also be exempt a printingpress and a newspaper office connected therewith, not to exceed in allthe value of twelve hundred dollars. Any person entitled to any of theexemptions mentioned in this section does not waive his rights theretoby failing to designate or select such exempt property or by failing toobject to a levy thereon, unless failing or refusing so to do whenrequired to make such designation or selection by the officers about tolevy. [§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 becomesthe 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 fromthose of his widow contracted prior to his death, provided suchexemption 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 strangersor boarders lodging with the family. [§4298. ]

[Sidenote: Perpetual earnings. ]

The earnings of such debtor for his personal services, or those of hisfamily, at any time within ninety days next preceding the levy, are alsoexempt from execution and attachment. [§4299. ]

[Sidenote: Unmarried persons. Non-residents. ]

There shall be exempt to an unmarried man not the head of a family, andto non-residents their ordinary wearing apparel and trunk necessary tocontain the same. [§4300. ]

[Sidenote: Persons starting to leave the state. ]

When the debtor, if the head of a family, has started to leave thisstate, he shall have exempt only the ordinary wearing apparel of himselfand family, and such other property, in addition, as he may select, inall not exceeding seventy-five dollars in value; which property shall beselected by the debtor and appraised; but any person coming into thisstate with the intention of remaining shall be considered a resident. [§4801. ]

[Sidenote: Purchase money. ]

None of the exemptions prescribed in this chapter shall be allowedagainst an execution issued for the purchase money of property claimedto be exempt, and on which such execution is levied. [§4302. ]

[Sidenote: Absconding debtor. ]

Where a debtor absconds and leaves his family, such property shall beexempt 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 fromexecution and attachment. [§4304. ]

[Sidenote: Pension money. ]

All money received by any person, resident of the state, as a pensionfrom the United States government; whether the same shall be in theactual possession of such pensioner, or deposited, loaned, or investedby him, shall be exempt from execution or attachment, or seizure by orunder any legal process whatever, whether such pensioner shall be thehead of a family or not. [§4305. ]

[Sidenote: Homestead. ]

The homestead of every such pensioner, whether the head of a family ornot, purchased and paid for with any such pension money, or the proceedsor accumulations of such pension money, shall also be exempt as is nowprovided by law of this state in relation to homesteads; and suchexemption shall also apply to debts of such pensioner contracted priorto 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 paymentof debts. [§3731. ]

CHAPTER X. 

CRIMINAL LAW-ILLEGITIMATE CHILDREN. 

[Sidenote: Rape. ]

If any person ravish or carnally know any female of the age of thirteenyears or more, by force and against her will, or carnally know and abuseany female child under the age of thirteen years, he shall be punishedby 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 bepunished 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 byforce, menace or duress, compel her to marry him, or to be defiled, heshall be fined not exceeding one thousand dollars and imprisoned in thepenitentiary not exceeding ten years. [§5161. ]

[Sidenote: Carnal knowledge. ]

If any person have carnal knowledge of any female by administering toher any substance, or by any other means producing such stupor or suchimbecility of mind or weakness of body as to prevent effectualresistance, or have such carnal knowledge of an idiot or femalenaturally of such imbecility of mind or weakness of body, as to preventeffectual resistance, he shall upon conviction, be punished as providedin the section relating to ravishment. [§5162. ]

[Sidenote: Producing miscarriage of pregnant woman. ]

If any person with intent to produce the miscarriage of any pregnantwoman, wilfully administer to her any drug or substance whatever, or, with such intent, use any instrument or any means whatever, unless suchmiscarriage shall be necessary to save her life, he shall be imprisonedin the state prison for a term not exceeding five years, and be fined ina sum not exceeding one thousand dollars. [§5163. ]

[Sidenote: Enticing female child for prostitution. ]

If any person take or entice away any unmarried female, under eighteenyears of age, from her father, mother, guardian, or other person havingthe legal charge of her person, for the purpose of prostitution, heshall upon conviction be punished by imprisonment in the penitentiaryfor not more than three years, or by fine of not more than one thousanddollars 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 theintent to detain or conceal such child from its parent, guardian, or anyother person having the lawful charge of such child, he shall bepunished by imprisonment in the penitentiary not more than ten years, orby a fine not exceeding one thousand dollars or by both such fine andimprisonment. [§5165. ]

[Sidenote: Seduction. ]

If any person seduce and debauch any unmarried woman of previouslychaste character, he shall be punished by imprisonment in thepenitentiary not more than five years, or by fine not exceeding onethousand dollars and imprisonment in the county jail not exceeding oneyear. [§5166. ]

[Sidenote: Marriage a bar. ]

If, before judgment upon an indictment, the defendant marry the womanthus 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 abar to a prosecution for seduction, as nothing but actual marriage willconstitute such bar. 

[Sidenote: Adultery. ]

Every person who commits the crime of adultery shall be punished byimprisonment in the penitentiary not more than three years, or by a finenot exceeding three hundred dollars and imprisonment in the county jailnot exceeding one year; and when the crime is committed between parties, only one of whom is married, both are guilty of adultery and shall bepunished accordingly. No prosecution for adultery can be commenced buton 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 intentto commit a rape, or for enticing or taking away an unmarried female ofpreviously chaste character, for the purpose of prostitution, or aidingor assisting therein, or for seducing or debauching any unmarried womanof previously chaste character, cannot be convicted upon the testimonyof the person injured, unless she be corroborated by other evidencetending to connect the defendant with the commission of the offense. [§5958, as amended by act of the Twenty-fifth General Assembly. ] Thecorroboration required by this section need not be by evidence ofwitnesses to the act, but may be wholly by circumstances and facts whichtend to connect the accused with the commission of the crime. 

[Sidenote: Bigamy. ]

If any person who has a former husband or wife living, marry anotherperson, or continue to cohabit with such second husband or wife in thisstate, he or she, except in cases mentioned in the following section, isguilty of bigamy, and shall be punished by imprisonment in thepenitentiary not more than five years, or by fine not exceeding fivehundred dollars and imprisonment in the county jail not more than oneyear. [§5318. ]

[Sidenote: Exceptions. ]

The provisions of the preceding section do not extend to any personwhose husband or wife has continuously remained beyond seas, or who hasvoluntarily withdrawn from the other and remained absent for the spaceof three years together, the party marrying again, not knowing the otherto be living within that time; nor to any person who has been legallydivorced from the bonds of matrimony. [§5319. ]

[Sidenote: Knowingly marrying husband or wife. ]

Every unmarried person who knowingly marries the husband or wife ofanother, when such husband or wife is guilty of bigamy thereby, shall beimprisoned in the penitentiary not exceeding three years, or by fine ofnot more than three hundred dollars and imprisonment in the county jailnot exceeding one year. [§5320. ]

[Sidenote: Lewdness. ]

If any man or woman not being married to each other lewdly and viciouslyassociate and cohabit together, or if any man or woman, married orunmarried, is guilty of gross lewdness and designedly make an open andindecent, or obscene exposure of his or her person, or the person ofanother, every such person shall be punished by imprisonment in thecounty jail not exceeding six months, or by fine not exceeding twohundred dollars. [§5321. ]

[Sidenote: Keeping house of ill-fame. ]

If any person keep a house of ill-fame, resorted to for the purpose ofprostitution or lewdness, such person shall be punished by imprisonmentin 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 orbreaches of the peace are carried on or permitted, to the disturbance ofothers, are nuisances, and may be abated and punished as provided inthis chapter. [§5472. ]

[Sidenote: Lease rendered void. ]

When the lessee of a dwelling house is convicted of keeping the same asa house of ill-fame, the lease or contract for letting such house is, atthe option of the lessor, void, and such lessor may thereupon have thelike remedy to secure possession as against a tenant holding over afterthe expiration of his term. [§5323. ]

[Sidenote: Leasing house for such purpose. ]

If any person let any house, knowing that the lessee intends to use itas a place of resort for the purpose of prostitution or lewdness, orknowingly permit such lessee to use the same for such purpose, he shallbe punished by fine not exceeding three hundred dollars, or imprisonedin 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 hasheretofore been guilty of the crime of prostitution, or who shallinveigle or entice any female, before reputed virtuous, to a house ofill-fame, or knowingly conceal or assist or abet in concealing suchfemale, so deluded or enticed for the purpose of prostitution orlewdness, he shall be punished by imprisonment in the penitentiary notless 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 suchpurpose, or if any person be found at any hotel, boarding house, cigarstore or other place, leading a life of prostitution and lewdness, suchperson shall be punished by imprisonment in the penitentiary not morethan five years. [§5326. ]

[Sidenote: Incest. ]

If any person marry his father's sister, mother's sister, father'swidow, 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 herfather's brother, mother's brother, mother's husband, husband's father, son, husband's son, daughter's husband, brother, son's son, daughter'sson, son's daughter's husband, daughter's daughter's husband, brother'sson, or sister's son; or if any person, being within the degrees ofconsanguinity or affinity in which marriages are prohibited by thissection, carnally know each other, they shall be deemed guilty ofincest, and shall be punished by imprisonment in the state penitentiaryfor 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 abastard child, or is pregnant with a child, which, if born alive, willbe a bastard, complaint may be made in writing by any person to thedistrict court of the county where she resides, stating that fact, andcharging the proper person with being the father thereof. [§6113. ]

[Sidenote: Judgment. ]

If the accused be found guilty, he shall be charged with the maintenanceof the child in such sum or sums and in such manner as the court shalldirect, and with the costs of the suit. [§6119. ]

[Sidenote: Marriage of parents. ]

Illegitimate children become legitimate by the subsequent marriage oftheir parents. [§3391. ]

CHAPTER XI. 

MISCELLANEOUS PROVISIONS. 

[Sidenote: Action for damages under prohibitory liquor law. ]

Every wife, child, parent, guardian, employer or other person who shallbe injured in person or property or means of support, by anyintoxicated person, or in consequence of the intoxication habitual orotherwise, of any person, shall have a right of action in his or hername, against any person, who shall, by selling intoxicating liquors, cause the intoxication of such person, for all damages actuallysustained, as well as exemplary damages; and a married woman shall havethe same right to bring suits, prosecute and control the same, and theamount recovered, as if a single woman, and all damages recovered by aminor under this action, shall be paid to such minor, or his parent, guardian, or next friend, as the court shall direct, and all suits fordamages under this section shall be by civil action in any court havingjurisdiction thereof. [§2418. ] Under this section a woman is entitled torecover for the death of her husband, or for personal injuries to him, or to herself caused by intoxication. She may recover damages for mentalanguish, shame, or suffering, resulting from injuries to the person, andfor 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 ownseduction and recover such damages as may be found in her favor. [§3760. ] In a civil action for damages it is not necessary that anunmarried woman be of previously chaste character to enable her torecover for loss of health, physical suffering, etc. , but without thatshe 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 hisfamily, the mother may prosecute as plaintiff, an action for theexpenses and actual loss of service resulting from the injury or deathof a minor child. [§3761. ]

[Sidenote: Married women]

A married woman may, in all cases, sue and be sued without joining herhusband with her, to the same extent as if she were unmarried, and anattachment or judgment in such action shall be enforced by or againsther as if she were a single woman. [§3667. ]

[Sidenote: Defense. ]

If husband or wife are sued together, the wife may defend for her ownright; and if either neglect to defend, the other may defend for thatone also. [§3768. ]

[Sidenote: When husband or wife deserts family. ]

When a husband has deserted his family, the wife may prosecute or defendin his name any action which he might have prosecuted or defended, andshall have the same powers and rights therein as he might have had; andunder like circumstances the same right shall apply to the husband uponthe desertion of the wife. [§3769. ]

[Sidenote: Evidence. Husband and wife. ]

Neither the husband nor wife shall in any case, be a witness against theother, except in a criminal prosecution for a crime committed oneagainst the other, or in a civil action or proceeding one against theother; but they may in all civil and criminal cases, be witness for eachother. [§4891. ] In prosecutions for adultery or bigamy the husband orwife, 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 anycommunication made by one to the other while married, nor shall theyafter the marriage relation ceases, be permitted to reveal in testimonyany such communication made while the marriage subsisted. [§4892. ]

[Sidenote: Women eligible to office. ]

Women are eligible to all school offices in the state, including thoseof county superintendent and school director. [§§2828, 2829. ]

No person shall be disqualified for holding the office of countyrecorder on account of sex. [§471. ]

[Sidenote: Police matrons. ]

Mayors of all cities having a population of twenty-five thousand ormore, are authorized, by act of the Twenty-fifth General Assembly toappoint police matrons to take charge of all women and children confinedat police stations. They are to search the persons of such women andchildren, accompany them to court, and "give them such comfort as may bein their power. " No woman is eligible to this office who is under thirtyyears of age. She must be of good moral character, and sound physicalhealth. Her application must be endorsed by at least ten women of goodstanding and residents of the city in which such appointment is made. When appointed she shall hold office until removed by death, resignationor discharge, but she can be dismissed only after charges have been madeagainst her conduct and such charges have been investigated. She has theright to enter work houses where women are confined, at all times. Sheshall be subject to the board of police or to the chief of police. Hersalary 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 schooldistrict, for the purpose of issuing any bonds for municipal or schoolpurposes, or for the purpose of borrowing money, or for the purpose ofincreasing the tax levy, the right of any citizen to vote shall not bedenied or abridged on account of sex, and women may vote at suchelections, the same as men, under the same qualifications andrestrictions. [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 harshnessin Iowa. At the time when the young state was born, public sentimentalready demanded a code more just, and, as before noted, the first lawfor the protection or extension of the property rights of married women, was passed in 1846. Modifications and changes have followed each otherthrough the entire history of our state legislation, until our presentlaw approaches a condition so nearly one of equal and exact justicebetween the sexes, that it might serve as a model for other states lessprogressive than our own. Except in the way of political disabilitiesour law makes no discrimination against or in favor of women. They haveall the rights and privileges enjoyed by men, and are subject to thesame duties and responsibilities. Before the law they are equal, but, asa matter of fact, where the law does not interfere, how is it in regardto the property rights of the wife? The unmarried woman has control ofher property, if she has any, to the same extent that an unmarried manhas control of his. If she accumulates money or property by anexpenditure of her time and labor, it belongs to her alone. She can keepit, give it away, will it, spend it, enjoy it, with the sameunquestioned right and freedom enjoyed by her brother. But a marriedwoman possesses no such independence, notwithstanding the laws in herfavor. The circumstances of her life may be such, that the law will bepowerless to protect her in the enjoyment of property which by rightbelongs to her. The relations and respective duties of husband and wifeare such that the husband usually and necessarily controls the businessand the family income. The amount of that income over and above theexpenditures for family expenses, he invests as he chooses. If it is hiswill to invest it in real estate, the law says she may have a share ofit after his death. If he deposits it in a bank or purchases stocks, bonds, mortgages, or other personal property, the law again says part ofit shall be hers, if she survives him, and he has not disposed of itwhile living, as he has a legal right to do. In either case, she cannotcontrol a single dollar during the life of her husband, if he chooses todeprive her of that privilege. The property accumulated during themarriage may be acquired by the wise judgment, strict economy andself-denial of the wife in connection with the time and labor of thehusband. It may even be obtained wholly by her efforts, even though notarising from the profits of any "separate business" recognized by thelaw. Her contribution to the family income may, and generally does, comeinto the possession of the husband and he invests it in property towhich he naturally and as a matter of course takes the title. During hislife 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 hisheirs 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 onlysufficient to support the wife in comfort after the death of herhusband, the law of descent as it now stands, may result in positivehardship and suffering. No matter how small the amount of propertybelonging to a deceased husband may be, one-half of it will descend tohis heirs, if he has no children, and the wife be left with no means ofsupport. Of course the result would be the same in the case of thehusband upon the death of the wife, if she held the title to all of thecommon property. That this law of descent has not operated to thedisadvantage of the husband, but invariably to the disadvantage of thewife, is not due to any defect in either the letter or spirit of theexisting law, but is the natural and inevitable result of the customwhich gives the husband the title to and the control of the jointearnings of himself and wife. 

[Sidenote: Change or modification needed. ]

It is difficult to suggest a remedy or to conceive of any law whichwould adjust and equalize the relations of husband and wife in theownership and control of common property during the lifetime of both, but if some just and wise legislator can devise some change ormodification of the present law, which will not interfere with thehusband's proper and necessary position as breadwinner and manager ofthe business of the family partnership, and which will give to the wifecontrol of a portion of the family income while the husband lives, andwhen the total amount of property held by either, is only sufficient toafford a comfortable support to the other, will after the death of theowner of the property, secure it all to husband or wife, as the case maybe, he will add to the laws of the state the one requisite necessary tosecure to women equal property rights with men, and a more justdistribution of intestate property.