Gleason v. Spray, 81 Cal. 217 (22 Pac. Rep. 551; 15 Am. St. Rep. 47). Under Ala. Const. art., 10, § 2; Code, §§ 2508, 2515, it is held that a mortgage by the husband alone is void as to lands embraced in it which are afterwards selected as a homestead. Marks v. Wilson, 115 Ala. 561 (22 So. Rep. 134). But a recent statute of this state provides that where a married woman has been legally declared insane, her husband may convey the homestead as though he were single, the deed stating that he is a married man and that his wife is insane, and having attached to it a copy of the judgment of the court establishing her insanity. Laws 1899, p. 89. Ark. Laws 1899, p. 107, validates defective conveyances of a homestead executed since April 13, 1893; but this statute does not validate any conveyance not signed by the wife or instruments in litigation at the time of its passage. Construing and applying Kan. Const., art. 15, § 9, Gen. Stat. 1889, par. 2996, providing that a homestead "shall not be alienated without the joint consent of husband and wife when that relation exists," it is held that where the wife's signature to a mortgage of the homestead is procured by duress the defense of duress may be made against its foreclosure, although it was given to secure the payment of a negotiable promissory note which had been transferred to an inno cent holder before maturity. Berry v. Berry, 57 Kan. 691 (47 Pac. Rep. 837; 57 Am. St. Rep. 351). Citing, Bank v. Bryan, 62 Ia. 42 (17 N. W. Rep. 165). Applying Mich. Const. Art. 16, § 2, How. Ann. Stat., § 7722, providing that a convey. ance of a homestad shall not be valid without the signature of the wife, it is held that a husband's conveyance of a homestead without his wife's signature is invalid, although a life estate in the homestead is reserved to her, Gadsby v. Monroe, 125 Mich. 282 (73 N. W. Rep. 367); but a life lease of a homestead, in the execution of which the wife joins by signing, is valid, although she is not named in the granting part. Barrett v. Cox, 112 Mich. 220 (70 N. W. Rep. 446). Construing and applying Mont. Comp. Stat. 1887,div. 1, § 323, which provides that a "mortgage or other alienation of such homestead by the owner thereof, if a married man, shall be void unless the wife join in the execution of the conveyance thereof," it is held that although the wife signs the mortgage of the homestead, it is

void if her acknowledgment is substantially defective. Ameri Sav. & L. Ass'n v. Burchardt, 19 Mont. 323 (48 Pac. Rep. 391; 61 Am. St. Rep. 507). Citing, Bank v. Schmidt, 6 Mont. 610 (13 Pac. Rep. 382). Neb. Comp. Stat. ch. 36, § 4, requiring a conveyance or incumbrance of a homestead to be signed and acknowledged by both husband and wife, applies, although they are not living together at the time of the execution of the instrument France v. Bell, 52 Neb. 57 (71 N. W. Rep. 984). Construing this statute with section 3 of the same chapter, which subjects a homestead to execution or forced sale" on debts secured by mechanics', laborers' or vendors' liens on the premises." it is held that a mortgage given by a wife at the time of the purchase of real estate, to secure the unpaid purchase money is valid security though not signed by the husband, though the property was purchased for, and occupied as, the family homestead. Prout v. Burke, 51 Neb. 24 (70 N. W. Rep. 512). Citing, Thomp. Homest. & Exemp., §§ 333, 343, 363; Wap. Homest. 352; Christy Dyer, 14 Ia. 438 (81 Am. Dec. 493); Burnap v. Cook, 16 Ia. 149 (85 Am. Dec. 507); Pratt v. Bank, 12 Kan. 570; Kimble v. Esworthy, 6 Ill. App. 517; Andrews v. Alcorn,13 Kan. 351; Greeno v. Barnard, 18 Kan. 518; Amphlett v. Hibbard, 29 Mich. 298; Roy v. Clarke, 75 Tex. 28 (12 S. W. Rep. 845); 1 Jones, Mortg., § 468. Under Tenn. Const.,art. 11, § 11; Mill & V. Tenn. Code, § 2939, the right of homestead can be conveyed only by joint deed of husband and wife when that relation exists. Cox v. Keathley, 99 Tenn. 522 (42 S.W.Rep. 437). Where a husband alone conveys a part of land claimed as a homestead and the remainder is worth less than the statutory amount allowed for a homestead, the wife may recover a homestead in the land conveyed, though the husband still owns other land worth more than the statutory homestead. Cottrell v. Rogers, 99 Tenn. 488 (42) S. W. Rep. 445). Under Hill's Ann. Wash. Code, Vol. 2, § 483, a mortgage of the homestead is not valid against the wife unless she joins therein. Anderson v. Stadlmann, 17 Wash. 433 (49 Pac. Rep. 1070).

Sec. 401. Rights of surviving husband, wife or children.

The law in force at the time of a husband's death,

governs in determining the homestead rights of his widow and children. Mills v. Mills, 141 Mo. 195 (42 S. W. Rep. 709). Cal. Code Civ. Proc., § 1465; Civ. Code, § 1402, construed and applied—allotment of probate homestead-rights of minor child-community property. In re Still's Estate, 117 Cal. 509 (49 Pac. Rep. 463). Under Cal. Civ. Code, § 1265, a surviving childless husband may claim a homestead exemption in community property to the amount of $5,000 as against a debt contracted during the existence of the community and after the selection of the homestead. Robinson v. Dougherty, 118 Cal. 299 (50 Pac. Rep. 649). As to the relative rights of an administrator, widow and heirs of a decedent in his homestead lands, under the law of Florida, see Hedick v. Hedick, 38 Fla. 252 (21 So. Rep. 101). The rights of surviving widow and children in a homestead, given by Ill. Rev. Stat. ch. 52, §§ 2, 4, may be waived by the widow's consenting to a sale of the whole estate made for the payment of debts, under ch. 3, § 100. Hayack v. Will, 169 Ill. 145 (48 N. E. Rep. 292.) Under this statute a householder's exemption continues after his death for the benefit of his widow so long as she continues to occupy the homestead, and of her children, until the youngest child becomes twenty-one years of age. Applying this statute, it is held that the widow does not abandon the homestead by leasing the same and using the income to support herself during her last sickness while she is living at the residence of her daughter; that while the widow's right of homestead continues, one who has an estate in remainder in the land, cannot claim it exempt as his homestead, as two homesteads cannot be claimed in the same land at one and the same time. Brokaw v. Ogle, 170 Ill. 115 (48 N. E. Rep. 394). In Illinois the widow's right of homestead is confined to the statutory limit of $1,000, and although statutory partition of property largely exceeding this amount in value and in which such a homestead right exists cannot be had without her consent, equity may decree a sale and division for the purpose of separating her homestead interest where the property cannot be divided. Wilson v. Illinois Trust & Sav. Bank, 166 Ill. 9 (46 N. E. Rep. 740). Ia. Code, §§, 2007, 2008, 2440, 2444, construed and applied-homestead rights of surviving wife-taking homestead in lieu of dower. Peebles

v. Bunting, 103 Ia. 489 (73 N. W. Rep. 882). For the discussion of the rights of a widow and children to a homestead exemption in the property of a decedent under the statutes of South Carolina, see In re Worley's Estate, 49 S. C. 41 (26 S E. Rep. 949).

HUSBAND AND WIFE.

EPITOME OF CASES.

Sec. 402. Antenuptial contracts and marriage settlements. Antenuptial contracts may be specifically enforced. Thompson v. Tucker-Osborn, 111 Mich. 470 (69 N. W. Rep. 730). See opinion for particular contract held sufficiently definite. The failure of an antenuptial agreement to contain a schedule of the property affected by it, as required by Mass. Gen. Stat., ch. 108, § 28, and the failure to record it as required by statute, 1867, ch. 248, does not affect its validity where the rights of creditors are not involved. Cook v. Adams, 169 Mass. 186 (47 N. E. Rep. 605). Where, in pursuance of an antenuptial contract, a man and woman have the marriage ceremony performed, he conveys land to her and they live together as husband and wife for more than five years, such a deed cannot be set aside for want of consideration because the wife's former husband who deserted her several years before, was alive during such supposed marriage, the parties to the deed, with full knowledge of all the facts, erroneously supposing him to be dead. Ogden v. McHugh, 167 Mass. 276 (45 N. E. Rep. 731). Where the provision made for an espoused wife is unreasonably small in proportion to the estate of the intended husband, that fact alone will raise a presumption of a fraudulent concealment of the husband's estate and invalidate the agreement at the instance of the wife, unless it be shown by the husband or those claiming the benefit of his agreement that she executed it with knowledge of the extent and value of his property. Hessick v. Hessick, 169 Ill. 486 (48 N. E. Rep. 712).

Where there is no proof of a fraudulent intent on his part a husband's antenuptial conveyance in consideration of mar

Clark v.

riage cannot be held void as to his creditors. McMahon, 170 Mass. 91 (48 N. E. Rep. 939). Where a deed of settlement by a man to his intended wife, granted her land for life "with full power of disposing of the same, his permission in writing being first obtained," it is held that a proper deed by the wife and husband conveys a good title to the purchaser notwithstanding a provision in the original deed that in case of the death of the wife before the husband the land shall revert to him. Wright v. Westbrook, 121 N. C. 155 (28 S. E. Rep. 298). Where a husband negotiates the purchase of lands, and procures the title to be placed in his wife's name and mortgages his own and other property, with that bought for her, to pay for the latter, and actually gives her the money raised on the mortgage, it is a complete gift to the wife, and casts upon the husband or his heirs, who dispute it, the burden of proving an obligation on her part to pay back the money, or some agreement on her part that the whole debt would be charged primarily on her property, leaving the husband's liable only for the deficiency. The relation of husband and wife, and his conduct in so dealing with the property purchased, raise a presumption that a gift or settlement is intended; and, while this presumption may be rebutted by proof, the burden is upon the party who disputes the gift. Moran v. Neville, 56 N. J. Eq. 326 (38 Atl. Rep. 851).

Sec. 403. Deeds of separation. A provision in a deed of separation as to a division of property is not void because it cannot be fully executed at the time of the agreement. Stebbins v. Morris, 19 Mont. 115 (47 Pac. Rep. 642). In this case the court follows the established common law doctrine upholding the validity of agreements between husband and wife for separation, in support of which they cite the following authorities: Bettle v. Wilson, 14 Ohio 257; Carson v. Murray, 3 Paige 500; St. John v. St. John, 11 Ves. p. 526; Westmeath v. Westmeath, Jac. 126; Walker v. Walker, 9 Wall. 750; Garbut v. Bowling, 81 Mo. 214; Randall v. Randall, 37 Mich. 563; Blaker v. Cooper, 7 Serg. & R. 502; Wells v. Stout, 9 Cal. 480; Clark v. Fosdick, 118 N. Y. 7 (22 N. E. Rep. 1111; 16 Am. St. Rep. 733; 6 L. R. A. 132); Rains v. Wheeler, 76 Tex. 390 (13 S. W. Rep. 324).