42-201 Wife's separate property; not available for husband or his debts; exception. - Nebraska Statutes

42-201. Wife's separate property; not available for husband or his debts; exception.The property, real and personal, which any woman in the state may own at the time of her marriage, rents, issues, profits or proceeds thereof and real, personal or mixed property which shall come to her by descent, devise or the gift of any person except her husband or which she shall acquire by purchase or otherwise shall remain her sole and separate property, notwithstanding her marriage, and shall not be subject to disposal by her husband or liable for his debts; Provided, all property of a married woman, except ninety percent of her wages, not exempt by statute from sale on execution or attachment, regardless of when or how said property has been or may hereafter be acquired, shall be liable for the payment of all debts contracted for necessaries furnished the family of said married woman after execution against the husband for such indebtedness has been returned unsatisfied for want of goods and chattels, lands and tenements whereon to levy and make the same. SourceLaws 1871, § 1, p. 68; Laws 1875, § 1, p. 88; Laws 1887, c. 49, § 1, p. 478; R.S.1913, § 1560; C.S.1922, § 1509; C.S.1929, § 42-201; R.S.1943, § 42-201; Laws 1945, c. 100, § 1, p. 328. Cross ReferencesExecutions and exemptions, see sections 25-1501 to 25-15,105. Annotations1. Separate property of wife2. Liability for debts of husband3. Liability for necessaries4. Miscellaneous1. Separate property of wifeProperty conveyed by husband to wife became her separate property and was a valid gift. Graff v. Graff, 179 Neb. 345, 138 N.W.2d 644 (1965).Legislation providing separate property rights of married woman had bearing on amendment of Homestead Act. Edgerton v. Hamilton County, 150 Neb. 821, 36 N.W.2d 258 (1949).Where the contract of a married woman does not expressly bind her separate estate for payment of a debt, the question of her intention must be determined as a fact from all evidence and surrounding circumstances. Federal Land Bank of Omaha v. Plumer, 139 Neb. 301, 297 N.W. 541 (1941).A valid provision in a contract, whereby a married woman expressly and unequivocally binds her separate estate, is conclusive proof of such intention, and cannot be contradicted by parol evidence. Fidelity & Deposit Co. v. Lapidus, 136 Neb. 473, 286 N.W. 386 (1939).Statutes have removed common-law disability of married woman to contract only in cases where contract has reference to her separate property, trade or business, or was made on the faith or credit thereof, and with intent on her part thereby to bind her separate property. John Fletcher College v. Estate of Pailing, 121 Neb. 847, 238 N.W. 750 (1931).Estate of husband in deceased wife's property is subject to her debts. Miller v. Hanna, 89 Neb. 224, 131 N.W. 226 (1911).Mortgage on separate estate without consideration, to secure debt of husband or third person, is void. Conkling v. Levie, 66 Neb. 132, 94 N.W. 987 (1902).A wife may own personal property the same as married man, and joint possession of both raises no presumption that husband is owner. Booknau v. Clark, 58 Neb. 610, 79 N.W. 159 (1899); Oberfelder v. Kavanaugh, 29 Neb. 427, 45 N.W. 471 (1890).Wife has absolute control over property owned by her at time of marriage. Broadwater v. Jacoby, 19 Neb. 77, 26 N.W. 629 (1886).It is no defense that husband alone received consideration for mortgage. Wilson v. Neu, 1 Neb. Unof. 42, 95 N.W. 502 (1901).Property coming to the wife by gift from the husband is excepted from the wife's separate estate. United States v. Sode, 93 F.Supp. 398 (D. Neb. 1950).2. Liability for debts of husbandSeparate estate of wife is not liable for husband's debts, though in husband's possession and assessed in his name. Taggart v. Fowler, 25 Neb. 152, 40 N.W. 954 (1888).Property purchased with own savings is not subject to husband's debts. Callahan v. Powers, 24 Neb. 731, 40 N.W. 292 (1888).Property of wife is not subject to sale for ordinary debts of husband. Leighton v. Stuart, 19 Neb. 546, 26 N.W. 198 (1886).3. Liability for necessariesThe term family herein includes a husband residing in same household with other members and medical services for him are necessaries for which wife may be liable. Nichol v. Clema, 188 Neb. 74, 195 N.W.2d 233 (1972).Husband is not bound without his assent to a contract made by his wife relating to a subject other than necessaries of life. Lincoln v. Knudsen, 163 Neb. 390, 79 N.W.2d 716 (1956).Statute makes property of married woman liable for debts for necessaries but no personal liability is imposed on her where she has no separate estate. Dreamer v. Oberlander, 122 Neb. 335, 240 N.W. 435 (1932).Property acquired by wife after divorce is not liable for debt contracted by husband for family necessaries prior to divorce. Deitz Lumber Co. v. Anderson, 116 Neb. 205, 216 N.W. 667 (1927).Property of married woman is not liable for payment of debts contracted for family necessaries until after execution issued against husband for same has been returned unsatisfied. Scott v. House, 93 Neb. 325, 140 N.W. 631 (1913).Necessaries includes medical expenses of husband. Leake v. Lucas, 65 Neb. 359, 91 N.W. 374 (1902); on rehearing, 65 Neb. 365, 93 N.W. 1019 (1902).Statute of limitations does not start to run until return of execution against husband is unsatisfied. Noreen v. Hansen, 64 Neb. 858, 90 N.W. 937 (1902).In action against wife on note given for necessaries, petition must allege execution against husband returned unsatisfied. Fulton v. Ryan, 60 Neb. 9, 82 N.W. 105 (1900).Wife is surety for necessaries of life, but is not bound until execution is returned unsatisfied. Small v. Sandall, 48 Neb. 318, 67 N.W. 156 (1896); George v. Edney, 36 Neb. 604, 54 N.W. 986 (1893).Exempt property is not liable for debts for necessaries. Schaller v. Kurtz, 25 Neb. 655, 41 N.W. 642 (1889).4. MiscellaneousThis section does not limit the county court's jurisdiction to determine the custody of a minor child whose custody is subject to a preexisting district court order where the county court's jurisdiction is invoked by the county attorney acting to protect the child pursuant to section 43-205. Schleuter v. McCuiston, 203 Neb. 101, 277 N.W.2d 667 (1979).Husband remains primarily liable for expenses of last illness and burial of wife. In re Estate of White, 150 Neb. 167, 33 N.W.2d 470 (1948).Where wife is joint tenant of property, she may exercise her rights with respect to consenting or objecting to proposed special assessments independent of her husband. Bonner v. City of Imperial, 149 Neb. 721, 32 N.W.2d 267 (1948).A married woman cannot sue husband for personal injuries or recover against husband's employer for husband's negligence for which husband is liable to employer. Emerson v. Western Seed & Irrigation Co., 116 Neb. 180, 216 N.W. 297 (1927).Presence of wife raises no presumption that tort committed by husband was committed as her agent, even though with reference to separate estate. Carnahan v. Cummings, 105 Neb. 337, 180 N.W. 558 (1920).Contract between husband and wife that she receive compensation for services outside of domestic duties, is valid and enforceable as against him or his estate. In re Estate of Cormick, 100 Neb. 669, 160 N.W. 989 (1916).Equitable rule sustaining gifts by solvent husband or wife is still in force. First Nat. Bank of Wahoo v. Havlik, 51 Neb. 668, 71 N.W. 291 (1897); Studebaker Bros. Mfg. Co. v. Welch, 51 Neb. 228, 70 N.W. 920 (1897); Dayton Spice-Mills Co. v. Sloan, 49 Neb. 622, 68 N.W. 1040 (1896).Wife may become creditor of husband. Lipscomb v. Lyon, 19 Neb. 511, 27 N.W. 731 (1886).Common-law rights of husband and wife exist except as modified by statute. Aultman, Taylor & Co. v. Obermeyer, 6 Neb. 260 (1877).A married woman of age at time of registration of land under Torrens Act who was served with process is bound by the decree. Jones v. York County, 26 F.2d 623 (8th Cir. 1928).