Beard

Heydenfeldt, J., and Bryan, J., concurred.

The statute of this State, defining the right of husband and wife passed April 11,1850, provides, that “ all property, acquired by either husband or wife, except such as may be acquired by gift, bequest, devise or descent, shall be common property.” It is further provided, that the husband shall have the entire control of the common property, with absolute power to dispose of it, and upon the dissolution of the community by death, of either the husband or wife, one half of the common property shall go to the survivor, &c.

The first question raised is, as to the power of the husband to convey the common property by devise or will, and thus defeat the rights of the surviving wife. This, we have no hesitation in saying, cannot be done. Our statute has done away with the common law right of dower, and substituted in place, a half interest in the common property. This liberal provision was intended for the benefit of the wife, and the intention of so humane and benificeut a law should not be defeated by adopting a rule of construction which would leave the future maintenance of herself and family entirely at the caprice of the husband.

The…