way of commissions upon the amount of money received and disbursed in the administration of the estate of the testator.

The law governing the duties of an executor and the administration of the estate under a will is prescribed by statutes of the several states.

A further discussion of the subject of wills, their form, manner of execution, safe keeping during the life of testator, and the proceedings for the probate thereof after testator's death, will be found under the title of "Wills" in Part II of this work. A full treatment of the subject of wills at this point and within the scope of this work is practically impossible, because of the many different rules existing in the several States governing the matter of wills, the procedure for their probate, the right and procedure of contest, the construction of testamentary provisions, and the administration of the estate passing under the will.

CHAPTER IX

HUSBAND AND WIFE

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ARRIAGE.-Marriage being the basis of the entire fabric of all civilized society, and consequently the most important transaction of life, it necessarily follows that in taking up the study of the Relative Rights of Individuals, those of first importance and consideration are the rights that arise out of the relation of Husband and Wife. This relationship arises and exists when a single man and a single woman of sufficient discretion take each other for husband and wife.

Anciently marriage was of the nature of a sale, with ethical results. The modes of getting a wife were similar to those of acquiring any other property, viz: by capture, gift, or sale. When daughters belonged to fathers, as goods, as they anciently did, they were parted with only on the principle of fair exchange. Every person had a price, and the contract was usually between the heads of families, the intending bride and bridegroom not being consulted. The marriage ceremonies were none other than necessary to complete and evidence a sale. In negotiations of this nature there was first, the bargain at which the price and terms were agreed upon; second, the Handgill, or part payment of the price, paid as an earnest to bind the bargain, and

survives today in the custom of presenting the engagement ring; third, the payment of the price, called "weotuma," a word connected with our present word "wed;" and fourth, the nuptials, at which the female was delivered to the man and completed the transaction and effected the marriage.

It was also one of the peculiar customs anciently, for the husband, on the morning following the marriage, to present to the wife a certain sum of money, and this was called the morning gift. In time this gift became combined with the promise to pay, and later gave way to a simple promise of payment. If the morning gift was paid then the wife had no right of property in her husband's estate at or after his death. If the gift was not made she was entitled on the death of her husband to one-third of his property. From the custom of the morning gift and the subsequent promise, only, we can trace the right of dower to which a widow is entitled under modern law. In certain countries, among certain people, and in various ages, the marriage ceremonies of course differed, some being simple and some very elaborate.

Under the early Roman law, the position of the wife was regulated by the law of manus, that isupon marriage she came under the hand of the husband as one of his family along with his sons and daughters and his slaves, and had no rights of her own, all merging in the potestas of the husband. On the death of the husband, however, she succeeded, like the children, to freedom and a share of his estate. Manus in course of time ceased to exist, and later Roman marriages left the spouses comparatively independent of each other, the bonds of mat

rimony being easily dissolved, and so long as they lasted were rather loose and easy. Under the latter rule the wife inherited only after the husband's kith and kin had been exhausted, and the widow usually fared rather poorly, and in this respect she was better off under the more stringent rule.

The English Common Law, which is the basis of much of our modern law respecting marriage and rights of husband and wife, owed its source to no other established law or usage, having followed a course entirely its own in dealing with this subject, but was, nevertheless, quite largely influenced by many principles of the Roman law, which principles influenced the rules and usages regarding marriage and the rights of the parties thereunder for many centuries on the continent of Europe, Under the Common law of England the legal identity of the wife was merged in her husband, the idea being that the husband and wife upon marriage became one person, therefore the husband became entitled to all her personal property, whether acquired before or after marriage, and to a tenancy during coverture and by courtesy in her real estate. She acquired no absolute interest in his property except dower. All her contracts became void, and her torts and crimes, except treason and murder, committed in her husband's presence were his rather than hers. He also became liable for her debts and for all frauds and injuries committed by the wife before or after marriage, whether she brought him any property or not. On the other hand he alone was entitled to compensation for the like frauds and injuries committed against her. He had the custody and control of her person and could moderately

chastise her. She could bind herself by contract with no one other than her husband, neither could she contract with him. Neither could give or sell to the other, or give evidence against the other, and neither could sue the other except for divorce, and after divorce neither could sue the other for a wrong during coverture. The wife could convey her real estate only by her husband joining with her in a deed, but she was not bound by her covenant in the deed. She could, however, bind her husband for necessaries for herself.

The duty of the wife was to love, honor and obey the husband, and it was his duty in return to love, protect and maintain the wife. He was bound to furnish and guard the home, provide according to his means and condition for her maintenance, be kind to her and see that the offspring were reared with care and tenderness.

The husband was entitled to the custody of the wife's person and to her society and services. He could recover his wife from any person who withheld her from him, and might recover damages against all who improperly enticed her away or withheld her. The wife had no corresponding right to the husband's person, but she had a right of action for the loss of his society and companionship against one who wrongfully procured or induced him to abandon or send her away.

Marriage revoked a will of the wife at common law and widowhood did not restore it, and during coverture she could make no will. Marriage did not, on the other hand revoke, the husband's will previously made, but marriage and birth of a child had that effect. The wife could, however, make a