REVIEW QUESTIONS I. For what is a trustee liable? What things are bad faith? What things constitute negligence? 2. What is understood by breach of trust? Give an example. 3. What is the first authority on a trustee's investments? The second? What are some of the negative rules? 4. Is the trustee liable if he leaves money at low interest in a savings bank? 5. What would be the liability for failure to make any investment? 6. When is a trustee not liable for theft or robbery? 7. Is a trustee liable for loss by accident? If he should have carried insurance and did not, would he be liable? 8. When is a trustee liable for the fault of his co-trustee? What is the test question in all cases? How can executors act? How should trustees act? How should bank deposits be made? 9. What is the situation when a trustee mixes trust property with his own? To what extent can trust funds be followed? CHAPTER LI TRUSTEES FOR MARRIED WOMEN § 440. The Common Law and Married Women's Rights The common law had no care for the rights of married. women; or, rather, under the common law a married woman had no rights worth consideration. When a woman married, her husband was at once entitled to all rents, income, and profit from her real estate. All her personal property was his absolutely, to dispose of at his pleasure. Any part of his wife's property that was in the shape of a right of action could be sued on by the husband, and whatever he recovered was his. If he was insolvent, his creditors could take his wife's personal property the day of the marriage and bring suit on her rights of action and apply all the property recovered on his old debts. At common law, a husband became entitled to receive the rents and profits of his wife's real estate during their joint lives, and he became entitled to all her personal property in possession, and to all her choses in action if he reduced them to possession during his life. If he did not reduce them to possession, and survived her, he was entitled to be her administrator, and he thus took all her choses in action. He also was entitled to all her chattels real, and had full power to sell and convey them. But if the husband died without having aliened her chattels real, or without having reduced her choses in action to possession, she, as survivor, continued to hold them as if she had never been married. The principle was this: by the marriage the husband became bound to pay all debts due from the wife before marriage; he also became bound to support and maintain the wife and her children in a proper manner. In consideration of these obli gations, and to enable him to perform these duties, the law It is gratifying to know that there was a "principle" in the matter and that it was not merely because the male of the species was the lawmaker. § 441. The Common Law and Trust Estates If a married woman were the cestui que trust of a trust estate, or if a woman who was the cestui que trust contracted marriage, the common law gave her husband the right to take whatever the trustee would have had to pay her. That is, under the common law a husband had the same right to his wife's equitable estate that he had to her legal estate, and her rights were as completely abrogated in the one case as in the other. The whole proceeding was so repugnant to every sense of fairness and justice that the courts of equity tried to find some way to evade it. The simplest way would have been to change it by positive legislation—an act of Parliament-giving a married woman the same control over her property that a married man had, but to do this would have been openly to admit that the common law was wrong and that the fathers had been unjust and inequitable for many years, which Englishmen— and other men as well-are always loath to do. Therefore, relief had to come first indirectly, through courts of equity. § 442. Marriage Settlements women. The doctrine of marriage settlements, was an invention of the English courts of equity to mitigate the injustice of the common law in its dealings with the property of married When the wife was the cestui que trust and the trustee declined to pay over to the husband what the wife was entitled to, the husband had to come into a court of equity to compel the trustee to pay him his wife's money. In such 1 Perry on Trusts, § 625. a case the court on the maxim that "He who seeks equity must do equity," would order that a proper settlement should be made the wife, from her own equitable property, before any part was paid to the husband. It was said that a wife and her children had an equitable right to a settlement; that is, the courts of equity said so, and whenever the question came under their jurisdiction they enforced the doctrine. A settlement is a provision made for a wife and her children, that cannot be taken by either her husband or his credi tors. In connection with this doctrine of settlement, much curious equitable law developed. A husband could make a settlement on the wife himself, and when the parties to the marriage were of influential families, this matter of settlement was always carefully handled by the bride's family. Equity recognized and enforced these antenuptial contracts if a reasonable provision was made for the wife in lieu of what she gave up. It was only one step further to decide that anyone who had property had the right to give and settle it on a married woman to her sole and separate use, free from the interference and control of her husband. This made it possible for any relative or friend to provide an independent property or income secure to a married woman, and safe from her husband and his creditors. § 443. Creating a Wife's Separate Estate A marriage settlement of this kind may be made without any express trustee, or if it is necessary to have a nominal trustee, the husband shall be held to take the legal trustee's title, and may be compelled to act in that capacity. A marriage settlement is peculiar in this respect, that restraint on alienation and against anticipation of income will be sanctioned by courts of equity. No special form is necessary to create such a married woman's trust, but the intention to exclude the husband from control or benefit must be clear and beyond doubt. "For her sole and separate use" is sufficient in any case to bar the husband's right. If property is conveyed to a single woman "for her sole and separate use," she will have the same control of it as any other owner until she marries, when the limitation will take place, and she cannot sell it while she is married nor can it be taken for her debts. Apart from this, a married woman may deal with her separate property as if she were single. If personal property is given to the separate use of a married woman, she may sell or otherwise dispose of it. This is probably now the rule in all the states. If the instrument of settlement prescribes any limitations on her power of dealing with the property, she can deal in no other way. $444. The Modern View Most of what has been written in this chapter is now practically obsolete law. The statutes of nearly, if not all, of the states now provide that any property, real or personal, owned by a woman at marriage or which shall come to her after marriage by gift, bequest, or devise, or which she may acquire by her own services or abilities, shall be her own separate property, which she can own, control, and deal with, as her husband deals with his own property or earnings. The passage of these acts does not interfere with any other settlement made before the passage of the acts. It would also be possible to arrange a settlement on the old plan if it were desired by a married woman. In some states there are statutory provisions that allow the appointment of trustees to hold a married woman's separate property if she so desires. Practically, though, the statutes have done away with |