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New York Court of Appeals Considers Married Women’s Property Rights
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[WOMEN’S RIGHTS]. Manuscript Document. Summary of Points in Executors of Maitland v. Amelia M. Whitlock, June 1872, Court of Appeals of the State of New York. 8 pp., 6.25 x 8.75 in.

Inventory #26037       Price: $1,650


Appellants Points

The husband may act as the agent of his wife in any business which she can transact.

‘There can be no longer a question that a married woman can manage her business and property through her husband as an Agent.’” (p1)

It has been held by authority in this State that a married woman may among other things

1. Buy and sell goods her husband acting as her agent....

2. Keep a bank account in the name of her husband as agent....

3. Deal in rea estate using her husband as agent....

4. Loan money to her husband and receive payment again from him without the intervention of a third party....

5. Buy out a business, and secure the price by mortgage....

6. Sue her husband to recover her property....

7. Lend money to her husbands firm and sue for it....

8. Maintain an action for loss of her wearing apparel....

9. Carry on ship chandler business through the agency of her husband....

It must be conceded therefore on authority that as for all purposes of business, a married woman is a feme sole, she can borrow money.” (p2-3)

It is not necessary that the plaintiff should be engaged in any trade or business of her own to enable her to borrow money on her own account, or to authorize her husband to borrow money for her.” (p4)

Extracts from Respondents Points

The defendant as the wife of Benjamin M. Whitlock, living together, and not engaged in any trade or business of her own, or having a separate estate, could not authorize her husband to borrow money on her account. Nor did the signing of her name by her husband in any legal view, make the wife responsible, as on a separate transaction of her own.” (p6)

The acts of 1848 and 1849, in relation to married women, do not confer upon them any new capacity to make contracts in law.” (p6)

The Acts of 1860, as amended in 1862, authorize married women to carry on any trade or business upon their own account, but with this exception, the only contracts it empowers them to make are those which have direct reference to their separate property. These provisions show that the Legislature has not even now intended to remove the Common Law disability of married women to bind themselves by contracts at large.” (p6)

Historical Background

In April 1848, the New York legislature passed “An Act for the Effectual Protection of the Property of Married Women” that became a model for other states. Women who brought property into a marriage could retain it, and her husband could not dispose of it, nor was she liable for his debts. They could also receive property after marriage that likewise was not at her husband’s disposal or liable for his debts. Although a step toward equality for women, the motivation for the new law was less a desire to do justice to women and more to provide a way for men to protect their assets in times of economic uncertainty by placing them in their wives’ names.

Still, husbands legally controlled their wives’ wages. In 1860, New York passed the Married Women’s Earnings Act that declared “the earnings of any married woman, from her trade, business, labor or services, shall be her sole and separate property, and may be used and invested by her in her own name.” In 1862, the New York legislature repealed parts of its legislation by eliminating a married woman’s right to guardianship of her children and the right of a widow to manage her late husband’s estate.

After the death of his first wife in 1849, Benjamin M. Whitlock (1815-1863) married Amelia Mott Wilson (1831-1910) in 1851, and they had at least five children. In June 1863, shortly before his death, Benjamin M. Whitlock, as agent of his wife, borrowed $3,000 from merchant Robert L. Maitland (1818-1870) and deposited it in the bank to her credit. She allegedly knew nothing about it, and none of the money went to her or her separate estate.

Maitland sued Amelia M. Whitlock for recovery of the money. Her counsel contended that although the husband may have a general agency in acting for his wife, he cannot borrow money in her name and make her liable, unless the money went to her separate estate or unless she was engaged in some trade or business. In 1869, Judge Daniel P. Ingraham (1800-1881) of the Supreme Court, while on circuit duty, held that she was not liable and dismissed the complaint.

Maitland died in December 1870, and his wife Mary C. Maitland (1813-1877), as the executrix of his will, appealed the judgment to the Court of Appeals of the State of New York. On June 10, 1872, the court, consisting of Chief Judge Sanford E. Church, and Associate Judges William F. Allen, Martin Grover, Rufus W. Peckham Sr., and Charles J. Folger, heard oral arguments. Prominent attorney and co-founder of the New York Bar Association Ashbel Green (1825-1898) represented the Maitland estate, while future Superior Court judge Gilbert M. Speir Sr. (1810-1894) represented Amelia M. Whitlock. After hearing the arguments summarized in this document, the justices agreed on June 20 to affirm the judgment of the lower court but offered no written opinion.

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