Separate

! 1, V. To part company. See Jury, p.

585, c. 2. 2, adj.

Severed or severable; set apart; distinct; existing, belonging to, enjoyed, maintained or maintainable by or for one person or class; entirely one's own, individual; independent, exclusive. Opposed, common, joint, firm, partnership. As, separate — acknowledgment, action, assets, claim, covenant, debt, earnings, estate, examination, maintenance, property, school, trial, qq. v. See also Partnership. The separate estate of a married woman is that alone of which she has the exclusive control, independent of her husband, and the proceeds of which she may dispose of as she pleases. 2 At common law, separate property in a wife is an estate, held in its use and title, for the benefit and advantage of the wife.3 " Separate " is the most apt word for creating a trust for the benefit of a married woman; it will of itself exclude the marital rights of her husband.^ In the absence of " sole and separate " or equivalent words, or of a provision that excludes the marital rights of the husband, or that gives the wife powers inconsistent with the disabilities of coverture, the rights of the husband will attach." See Sole. The English doctrine is that the wife's capacity to dispose of property settled to her separate use is absolute, unless she is expressly restrained by the terms of the settlement; and, generally speaking, the property is bound by her contracts. In the United States the decisions as to her power over her property, and its liability for her engagements, have not been uniform; but the tendency of legislation is to enlarge her power. The American doctrine is that she has no powers except such as are given by the trust instrument, and that these "must be strictly pursued. This is the law in Illinois, Mississippi, Ohio, Pennsylvania, Rhode Island, South Carolina (since 1811), Tennessee, and, formerly, in Maryland. The English doctrine has been followed in Alabama, California, Connecticut, ' L. ae-parare, to set or pui.apart. ' Petty V. Malier, 14 B. Mon. 247 (1853), Simpson, J.; Bowen v. Sebree, 2 Bush, 115 (1867); Alston v. Eowles, 13 Fla. 126(1870). ' George v. Ransom, 15 Cal. 324 (1860); Dow v. Gould, 31 id. 637 (1807). « Lewis V. Mathews, L. R., 2 Eq. 179 (1866); Massey u Eowen, L. R., 4 H. L. C. 294 [(1869); Christian v. Gunn, 80 Va. 372 (1886); Tullett v. Armstrong, 1 Beav. 1, 32 (1638). Florida, Georgia, Kentucky, Maryland, Minnesota, Missouri, North Carolina, New Jersey, New Toric, Virginia, and Vermont, and in the Federal courts. The tendency is toward placing her legal and equitable separate estates, as far as regards her power over them, upon the same footing.' See Anticipation, 1; Husband; Joinder; Joint; Right, 2, In own.

Separation

Cessation of cohabitation between husband and wife, by agreement.^ Divorce from bed and board is sometimes. called a " separation," leaving the word " divorce " to refer to the dissolution of a valid marriage.' The agreement is usually evidenced by ar Ucles or a deed of separation. "Voluntary separation," or such as is mutual between the parties, is used in contradistinction to such as is "by sentence of court," that is, ' ' separation a mensa et thoro," or " judicial separation." In some States, the expression " judicial separation" has given way to "divorce a vinculo;" in others, it is still in use, being gi-anted for any c^use not sufl Soient to authorize an absolute divorce. Such separation works no change in the relation of the parties, toward each other or toward third persons, except in authorizing them to live apart until they •may choose to live together again. A reconciliation, of its own force, annuls a sentence of separation. When the terms upon which a voluntary separation takes place are not unreasonable, particularly as regards the rights and claims of the wife, the contract is likely to be upheld as valid.' There are serious objections to voluntary separations' between married persons. Nevertheless, contracts for -the separate maintenance of the wife, through the intervention of a trustee, have received the sanction of the courts for so long a period that the law must be considered as settled. His covenant to support her, where ths consideration is apparent, will be enforced, if it appears that the deed was not made in contemplation of a future possible separation, but in respect to one which was to occur immediately, or 1 See 1 Ld. Cas. Eq. 741; Schoul.

H. & W. ni; Perry, Trusts, § 655; Hill, Trustees, 657; Bisp. Eq. IV; 17 Ala. 805; 26 id. 213;' 23 Cal. 554; 20 Conn. 175; 4 Fla. 418; 12 Ga. 200; 32 id. 604; 41 id. 147; 128 U. S. 236; 23 111. 209; 61 id. 426; 10 B. Men. 320; 16 id.

482, and statute since; 5 Md. 219; 11 id.

492; 26 id. 5; 12 Minn. 430; 4 N. J. E. 612; 23 id. 529; 17 Johns. 548; 18 N. Y. 265; 23 id. 466; 14 Ohio St. 619; 1 Eawle, 231; 4 Ta 93; 63 id. 430; 80 id. 380; 2E. I. 355; 3 Dessau. 417; 1 Hill, Ch. 228; 1 Strob. E. 27; 8 Humph. 169; 1 Cold. 461; 2 Leigh, 183; 37 Vt. 78; 13 Blatch. 285; 9 Wall. 119.

On executions against her separate estate, see 21 Cent. Law J. 44-i9 (1885), cases; as to wife dealing with it, 24 Am. Law Reg. 470-78 (1885), oases. for the continuance of one already taken place; especially so, if the separation was occasioned by the misconduct of the husband, and the provision is reasonable, and not more than the court would have decreed as alimony."

See Desbbtion, 1; Divorce; Hdsbakd.