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The Legal Status of Women
in the
United States of America




GRINNELL COLLEGE

i-iBR48Xo»
NEW MEXICO
as of October 1, 1962

Women’s Bureau Bulletin

157-30 (Revised)

UNITED STATES DEPARTMENT OF LABOR
W. Willard Wirtz, Secretary
WOMEN’S BUREAU
Director

Mrs. Esther Peterson,

The report for New Mexico was prepared by Peggy S.
Amundson and reviewed by Laura Lee Spencer, under the
general direction of Alice A. Morrison, Chief of the Division
of Legislation and Standards in the Women’s Bureau, U.S.
Department of Labor.

U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1963

For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington 25, D.C. - Price 15 cents




3^1.V
iLn 'i,

Contents
Pag#




1
3
3
3
3
4

q* cji 4^

Introduction________________________________________
Civil rights________________________________________
Contracts and property_________________________
1. Age of majority_______________________________
2. Contractual powers of a minor________________________
3. Property exemptions from seizure for debt
A. Respective rights of man and woman
B. Homesteads
4. Ownership and control of property owned at marriage
5. Contractual powers of a married woman
6. Earnings of a married woman_________________________
7. Liability for family support____________________
8. Right of a married woman to engage in a separate business,,
9. Rights of a married woman with respect to separate property10. Property acquired by joint efforts of husband and wife
11. Damages for injury to person, property, or character
12. Damages for injury by spouse to person or property
13. Competency of husband or wife to testify for or against each
other___________________________
14. Right to dispose of separate property by will
15. Inheritance rights in deceased spouse’s estate
16. Provision for survivors during administration of estate
17. Right of husband or wife to disinherit the other by will
Marriage and divorce__________________________
18. Age of consent to marriage_______________________
19. Common-law marriage______________________
20. Premarital requirements_______________________
21. Interstate cooperation in marriage-law enforcement
22. Annulment___________________________
23. Divorce________________________
Parents and children______________________
24. Parents’ right to services and earnings of a minor child____
25. Guardianship of a minor child_______________________
26. Appointment of testamentary guardian for a minor child___
27. Inheritance—child____________________
28. Child born out of wedlock____________________
29. Inheritance—child born out of wedlock_______________
Political rights_____________________________
30. Domicile of a married woman_____________________
31. Public office—eligibility of women_________________
32. Jury service—eligibility of women___________________

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in

The Legal Status of Women in the
United States of America
Introduction

Any conclusion bearing on woman’s status under the laws of the
United States of America must take into account the English common
law, on which the fabric of the Nation’s jurisprudence is woven.
In addition, those far western and southwestern States which were
explored and developed by the French and Spanish—Arizona, Cali­
fornia, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washing­
ton—were governed by laws based on the community-property system.
Common-law rules of property sprang from various causes, notably
tradition, military or economic exigency, and “natural male domi­
nance.” On the other hand in France and Spain the communityproperty laws vested the wife with an interest, in many respects equal
to that of her husband, in property acquired during marriage.
In New Mexico the community-property system has been modified,
an 1876 law providing that the common law as recognized in the
United States of America shall be the rule of practice and decision
in the courts. In general it has been the rule that in the absence of a
specific statute, the common law applies.
Economic and social advances in the position of women in the
United States have brought about marked changes in laws governing
property and family rights and political status.
Material considered in Women’s Bureau Bulletin 157 series centers
largely around women in the marriage relation, since the legal status
of the unmarried woman is practically identical with that of the un­
married man. To increase the usefulness of the material, more atten­
tion has been given in the current revision to differences in the legal
treatment of men and women.
I he United States Summary of the Legal Status of Women in the
United States of America, Bulletin 157, last brought up to date as of
January 1, 1953, is being revised. The revised Summary will be
compiled from the reports for 50 States and the District of Columbia.
The President’s Commission on the Status of Women (established
by Executive Order 10980, December 14,1961) has appointed a Com­
mittee on Political and Civil Eights to review the civil and political
rights of women. The Commission’s report, which will be submitted
in October 1963, will present findings and make recommendations for
constructive action.




1

Sources

Constitution of New Mexico
New Mexico Statutes Annotated, 1953
New Mexico Reports
Opinions of the Attorney General
Pacific Reporter
Pacific Reporter (Second Series)

Explanatory Note

Bulletin 157-30 presents a digest of the State constitution and
statutory provisions affecting the legal status of women in New
Mexico. It includes pertinent statutory changes enacted in that State
up to October 1, 1962, and supersedes the previous report for New
Mexico.
References to the State constitution are indicated by parenthetical
insertions of article and section numbers following the abbreviation
“Const.,’' as “(Const., ait. 20, sec. 11),” placed after the related sub­
ject matter.
References to code sections likewise are in parentheses, as “(sec.
22-7-2).”
_
_ _
Case citations definitely construing statutes, or declaring judicial
policy in the absence of express statutory provision, are indicated by
footnote references. Cases showing historical development of a statute
or policy are followed by the abbreviation “ (Hist.).”
Numbered subject headings are the same as those in the U.S. Sum­
mary. Cross references employ these numbers for brevity, as “(See
number 6.)” which refers to subject heading “Earnings of a married
woman.”

2




NEW MEXICO
CIVIL RIGHTS

Contracts and Property
1. Age of majority

The age of majority for both sexes is 21 years, by rule of common
law, regardless of marital status.1
2. Contractual powers of a minor

Contracts and conveyances of a minor are voidable under the
common-law rule. But when an infant receives anything by reason
of a contract which he disaffirms upon coming of age, he must restore
what he received under the contract, if he still has it, in order to make
the disaffirmance effective. He cannot avoid the contract and still re­
tain the fruits of it.2
Guardianship over minors of both sexes ceases when they arrive at
the age of 21 years, or with their marriage (secs. 32-1-7, 32-1-42).
The statute refers to personal control of the wards and does not pur­
port to declare them of legal age. It does not mean that a married
man of 20 years may vote or hold office, or that a woman married be­
fore reaching her majority has the period of her legal minority dimin­
ished;3 nor does it have any application to guardianship of estates
of minors.4
A minor who has been lawfully married may institute, prosecute to
judgment, or defend any action against his or her lawful wife or hus­
band in his or her own name without a guardian or next friend (sec.
21-6-7).
A minor capable of contracting marriage may make a valid mar­
riage settlement (sec. 57-2-11). (See number 18.)
A married woman under 21 years of age may join her husband in
all conveyances, leases, and mortgages affecting the community real
estate. Her execution of such instruments has full force and effect,
as if she were 21 years old at the time she signed them (sec. 57—1-1).
1 Montoya, de Antonio v. Miller (1893), 7 N.M. 289 ; 34 Pac. 40. (Hist.)
2 Evants V. Taylor (1913), 18 N. M. 371 ; 137 Pac. 583.
3 Montoya de Antonio v. Miller, supra.
' In re Hay’s Guardianship (1932), 37 N. M. 55 ; 17 P. (2d) 943.




3

THE LEGAL STATUS OP WOMEN

Minors may make and withdraw bank deposits in their own names
(sec. 48-10-1), hold credit union shares, and make deposits (sec.
48-19-13).
A fraternal benefit society may admit to membership any person who
proves insurability as provided by statute. Any person so admitted
prior to attaining the full age of 21 years is bound by the terms of the
application and certificate and by the laws, rules, and regulations of
the society, and is entitled to the same rights and privileges of mem­
bership to the same extent as though he or she were not a minor at the
time of application (sec. 58-14-7).
3. Property exemptions from seizure for debt
A. Respective Rights

of

Man

and

Woman

Every person who has a family and every widow may hold exempt
from execution, attachment, or sale the wearing apparel of such person
or family, various items of furniture, appliances, and other personal
property, food, fuel, livestock, and tools and implements of the debtor
necessary for carrying on his trade or business, whether mechanical
or agricultural, to be selected by him or her, within specified values,
as enumerated in the statute (sec. 24-5-1).
Certain additional exemptions of specific equipment are allowed to
draymen, farmers, doctors, and lawyers, who are heads of families
(secs. 24-5-6, 24-5-7).
Every unmarried woman may hold the following items exempt:
Wearing apparel to be selected by her, not to exceed $150 in value;
one sewing machine; one knitting machine; one piano or organ, if
she is engaged in teaching music; a Bible, hymn book, psalm book,
album, and any other books not exceeding $50 in value (sec. 24-5-2).
Current wages or salary due may not be garnisheed for more than
25 percent of any wages or salary due for the last 30 days’ service. If
the wages or salary are $100 or less for the last 30 days, garnishment
may be had for no more than 20 percent. No exemption whatever
may be claimed if the debtor is not the head of a family or the family
does not reside in the State (sec. 26-2-27).
No exemption under this section applies where the debt was for the
necessities of life; but where the debt was for other than the necessities
of life the first $80 earned within the previous 30 days is exempt.
There is no additional exemption under this section even though the
first $80 has already been paid before garnishment.5 Under a valid
wage assignment made under the Small Loan Act, a sum not to exceed
5 1957-58 Op. Atty. Gen. No. 57-212.

4




NEW MEXICO

10 percent of the salary or other compensation is collectible from the
employer at the time of each payment to the borrower (sec. 48-17-49).
(See number 5 as to valid wage assignment.)
Any beneficiary fund not exceeding $5,000 that is set apart, appropi iated, or paid by any benevolent association or society according to
its rules, regulations, or bylaws to the family of any deceased member
or to any member of such family, may not be seized under legal process
to pay any debts of such deceased member (sec. 21—5-4).
No money or other benefit provided by a fraternal benefit society is
liable to attachment, garnishment, or other process to pay the debt or
liability of a member or beneficiary, either before or after payment bv
the society (sec. 58-14-21).
The cash surrender value of a life insurance policy, and other spec­
ified insurance contracts and benefits, are. not liable to attachment,
garnishment, or legal process by a creditor of the person insured, or
who received the benefit thereof, nor is it subject in any way to the
debts of such person, unless made or assigned for the benefit of such
creditor (sec. 24-5-3).
Proceeds of any life insurance policy are not subject to debts of the
deceased, except by special contract or arrangement made in writing
(sec. 24-5-5).
Proceeds of an action for wrongful death are not liable for any debts
of the deceased if he is survived by a spouse or certain specified heirs
(sec. 22-20-3). (See number 15. Damages for wrongful death.)
B. Homesteads

Husband and wife, or widow or widower living with an unmarried
daughter or unmarried minor son, may hold exempt from sale or judg­
ment or order a family homestead not exceeding $3,000 in value. The
husband has the right to make the demand for the homestead, but if he
ails or refuses to act, the wife may do so. Neither can demand such
exemption if the other has a homestead. The exemption is not allowed
against a valid mortgage, nor against liens for purchase money, matenals, or labor furnished (sec. 24-6-1).
A person owning the superstructure of a dwelling house occupied by
him or her as a family homestead is entitled to hold it exempt, though
the land is owned by another. A lessee may claim the homestead
exemption, but this does not prevent a sale subject to the lease (sec
24-6-2).
'
The widow and any unmarried minor children composing part of
a decedent’s family at the time of his death are entitled to have a statu­
tory homestead set apart for them when a sale of the decedent’s lands
675042—63------2




6

THE LEGAL STATUS OF WOMEN

is sought by the executor or administrator to pay debts. The exemp­
tion continues as long as any unmarried minor child resides on the
homestead, even though the widow dies (sec. 24-6-3). (See also num­
ber 15, reference to sec. 29-1-22).
On sale of a homestead which is charged with liens, some of which
preclude the allowance of a homestead and some of which do not, those
liens so precluding the allowance are paid from the proceeds. The
balance, not exceeding $1,500, on application is awarded to the head
of the family or the wife, as the case may be, in lieu of the homestead
(sec. 24-6-0).
Any resident of the State who is the head of a family and not the
owner of a homestead may hold exempt from levy or sale real and per­
sonal property selected by the person, his agent, or his attorney, up to
$1,500 in value in addition to the amount of chattel property otherwise
exempt. The “in lieu” exemption does not apply to the first 25 percent
of any amount due as salary or wages prior to service of the writ of
garnishment (sec. 24-6-7).
No sale of real estate made under a mortgage which is not executed
by the wife of the debtor, if he has a wife, can affect in any manner
the right of the wife or family to have a homestead set off under the
provisions of the statute (sec. 24-6-8).
4. Ownership and control of property owned at marriage

All property of the wife owned by her before marriage, together
with the rents, issues, and profits from it, is her separate property
(sec. 57-3-4).
5. Contractual powers of a married woman

Either husband or wife may enter into any engagement or transac­
tion with his spouse or with any other person respecting property
which either might enter into if unmarried; such transactions between
themselves are subject to the general rules of common law which con­
trol the actions of persons occupying confidential relations with each
other (sec. 57-2-6).
Husband and wife can transmute community funds into property
held in joint tenancy by them, and can make a gift to the community
of the separate property of either party.6
When a married woman unites with her husband in the execution
of an instrument affecting real estate and acknowledges the same in
one of the forms sanctioned, she is described in the acknowledgment
« Chavez v. Chavez (1952), 56 N. M. 393 ; 244 P. (2d) 781.

6




(Hist.)

NEW MEXICO

as his wife, but in all other respects her acknowledgement is taken and
certified as if she were sole (sec. 43-1-10).
A promissory note made by a married woman can be enforced only
against her separate property; if she signs a note for her husband as
an accommodation maker, she is liable although it was executed for a
community debt.7
A married woman may own and control capital stock in building
and loan associations as if she were unmarried, and her stock is not
subject to her husband’s control nor liable for his debts (sec. 48-15-8).
Either spouse may execute a valid power of attorney for himself
or herself without the joinder of the other (sec. 57-2-7).
A husband and wife cannot by contract alter their legal relations,
except as relates to their property, and except that they may agree in
writing to a separation and may make provisions for the support of
either of them and of their children during their separation (sec
57-2-12).
A valid marriage settlement supersedes property rights of husband
and wife defined by statute (sec. 57-3-1).
All contracts for marriage settlements and contracts for separation
must be in writing, and executed and acknowledged or proved in the
same manner as a grant of land (sec. 57-2-8).
Either spouse may convey or mortgage separate property without
the other joining in such conveyance or mortgage (sec. 57-4-3).
The surviving spouse of an intestate decedent is entitled to adminis­
ter the estate (sec. 31-1-9). Since the statute is mandatory, a widow
who is qualified may not arbitrarily be denied the preferential right
granted her by statute.8
No assignment of wages earned or to be earned given to secure a
loan, nor a lien or mortgage on household furniture in use by the
borrower, is valid unless it is signed by both husband and wife unless
they have been living separate and apart for at least 2 months (sec
48-17-49).
(For effect of incapacity or absence of the husband, see number 10.)
6. Earnings of a married woman

^Earnings of the wife are not liable for the debts of the husband (sec.
57-3-6); however, this statute does not make such earnings the sepa­
rate property of the wife. Her earnings are community property un­
der the dominion of the husband.9
7 First Savings Bank tf Trust Co. V. Flournoy (1917), 24 N. M. 256 • 171 Pac 793
Sin re Matson’s Estate (1946), 50 N. M. 155 ; 173 P. (2d) 484.
0 Albright v. Albright (1916), 21 N. M. 606 ; 157 Pae. 662.




(Hist )

THE LEGAL STATUS OF WOMEN

The community owns the earning power of the husband; when the
earning powTer is used in the conduct of his separate business, the por­
tion of his earnings attributable to his personal activities and talents
is community property.10
Even though the spouses are residents of a State following the
common-law rule that earnings are the separate property of the spouse,
their earnings in a community property State are community prop­
erty.11
However, money earned by the spouse outside the State constitutes
community property where the marital domicile continues in New
Mexico.12
While a wife is living separate from her husband, her earnings
and accumulations and those of her minor children living with her or
in her custody are her separate property (sec. 57-3-7).
7. Liability for family support

Husband and wife contract toward each other obligations of mu­
tual respect, fidelity, and support (sec. 57-2-1).
If the husband neglects to provide support for his wife, any other
person may in good faith supply her with necessaries and recover
the reasonable value thereof from her husband (sec. 57-2-3).
A husband abandoned by his wife is not liable for her support until
she offers to return, unless she was justified by his misconduct in aban­
doning him; nor is he liable for her support when she is living sepa­
rate from him by agreement, unless such support is stipulated in the
agreement (sec. 57-2-4).
The wife must support her husband out of her separate property
when he has not deserted her, if he has no separate property, if there
is no community property, and if he is unable from infirmity to sup­
port himself (sec. 57-2-5).
A man who abandons his wife or a parent who abandons a child,
without sufficient means of support, or who fails to provide for their
support as far as his or her ability extends, is guilty of a misdemeanor
(secs. 40-2-4, 40-2-5).
8. Right of a married woman to engage in a separate business

No formal proceeding is required by statute to enable a married
woman to engage in a separate business. No inventor}7 of her separate
property is required to be placed on record.
30 Katson v. Kataon (1939), 43 N. SI. 214 ; 89 P. (24) 524.
33 Mounsey v. Stahl (1957), 62 N. M. 135 ; 306 P. (2d) 258.
12Op. Atty. Gen. No. 4478.

8




NEW MEXICO

9. Rights of a married woman with respect to separate property

All property of the husband or wife owned by him or her before
marriage or acquired afterward by gift, bequest, devise, or descent is
his or her separate property, as well as the rents, issues, and profits
therefrom. A wife may convey her separate property without the
consent of her husband (secs. 57-3-4, 57-3-5). (See number 5, refer­
ence to sec. 57-4-3).
Whenever any real or personal property, or any interest therein
or encumbrance thereon is acquired by a married woman by an
instrument in writing, the presumption (legal inference of fact) is
that title is thereby vested in her as her separate property. If ac­
quired by such married woman and any other person, the presump­
tion is that she takes the part acquired by her as a tenant in common,
unless a different intention is expressed in the instrument (sec. 57-4-1).
(See number 10 for presumption if the property is acquired by hus­
band and wife, as such.)
Purchase of property by a married woman with money borrowed
on her individual credit is essentially an exchange of separate property
for separate property, and it remains her separate estate.13
Neither husband nor wife has any interest in the property of the
other, but neither can be excluded from the other’s dwelling (sec.
Separate property of the wife is not liable for the debts of her hus­
band but is liable for her own debts, whether contracted before or
after marriage (sec. 57-3-9). Her separate property is not subject
to the debts of the community.14
Separate property of the husband is not liable for the debts of the
wife contracted before marriage (sec. 57-3-8).
10. Properly acquired by joint efforts of husband and wife

All real and personal property acquired after marriage by husband
or wife, or both, other than separate property as defined in number 9,
is community property (sec. 57-4-1).
Husband and wife may hold property as joint tenants, tenants in
common, or as community property (sec. 57-3-2).
Status of property at the time it is acquired determines whether it
is separate or community property, regardless of the source of pay­
ments made later.15
13Morris v. Waring (1916), 22 N. M. 175 ; 159 Pac. 1902.
14 Rosenwald & Son v. Baca (1922), 28 N. M. 276 ; 210 Pac. 1068.
13 Laughlin v. Laughlin (1945), 49 N. M. 20 ; 155 p. (2d) 1010.




9

THE LEGAL STATUS OF WOMEN

When any interest in real or personal property is conveyed to a
married woman and any other person, the presumption is that she
takes the part acquired by her as tenant in common, unless a different
intention is expressed in the instrument. When any such real or
personal property is acquired by husband and wife by an instrument
in writing in which they are described as husband and wife, the
presumption is that such property is community property, unless a
contrary intent is expressed (sec. 57-4—1). Prior to its amendment
in 1947, this section provided that an interest in real or personal
property conveyed to a “married woman and to her husband (emphasis
supplied), or to her and any other person, the presumption is that the
married woman takes the part conveyed to her as tenant in common
unless a different intention is expressed in the instrument. . . .” In
applying this section to a deed executed prior to its amendment, the
court held where realty is deeded to husband and wife the con­
veyance presumptively vests a one-half interest in the husband and
wife as community property, and the remaining half in the wife as
tenant in common. Use of community funds to purchase the real
estate is not sufficient evidence to rebut the presumption, for in such
cases a gift of community funds to the wife is presumed.16
However, there is no general presumption that personal property
acquired during coverture and held in the name of a wife is her
separate property.17
Property acquired by the husband during marriage is presumed to
be community property, but this presumption is also rebuttable.18
All interest in any real estate, either granted or bequeathed to two
or more persons, shall be held in common unless it is clearly expressed
in the grant or bequest that it shall be held by both parties (sec.
70-1-14).
An instrument conveying or transferring title to real or personal
property to two or more persons and the survivor, or to two or more
persons with right of survivorship is prima facie evidence (evidence
sufficient to establish an inference of fact) that such property is held
in a joint tenancy (sec. 70-1-14.1). This provision changes the rule
laid down in an earlier decision, that a deed in joint tenancy alone
is not proof that the realty was intended to be held in joint tenancy
so as to defeat the community nature of the ownership.19 In this case
it was pointed out that a joint tenancy arises where two or more
persons hold property in which there is a unity of interest, unity of
»Augustv. Tillian (1947), 51 N. M. 74 ; 178 P. (2d) 590.
17 McClendon v. Dean (1941), 45 N. M. 496 ; 117 P. (2d) 250.
18 Carron v. Abounador et ux. (1923), 28 N. M. 491; 214 Pac. 772.
19 Trimble v. St. Joseph’s Hospital (1953), 57 N. M. 51 ; 253 P. (2d) 805.

10




NEW MEXICO

title, unity of time, and unity of possession. A chief incident of such
an estate is the right of a survivor to take the whole, as distinguished
from a tenancy in common where each holds by a separate and distinct
title having the right to dispose of his interest separately.
A life insurance policy payable to the estate of a person is his sep­
arate property if the policy was obtained before marriage, and com­
munity property if obtained subsequent to marriage. The status of
proceeds or avails of such insurance, whether community or separate
property of the insured, is not governed by the marital status of the
insured at the time of his death. Reinstatement of a policy continues
the original policy in force and is not the execution of a new contract
of insurance.20
Management and control of community property

The husband has the management and control of the personal prop­
erty of the community, and during marriage he has the sole power
of disposition of it, other than by will, as he has of his separate estate.
However, husband and wife must join in all deeds and mortgages
affecting real estate which is not the separate property of either of
them. Any attempted transfer or conveyance of community real prop­
erty by either husband or wife alone is void and without effect, unless
the conveyance is from one spouse directly to the other (sec. 57-4^3).
Even under this statute, if the husband attempts to dispose of real
property of the community for the purpose of defrauding or defeating
the wife’s claims, the court will protect the wife against such dis­
position.21
After divorce the parties are no longer husband and wife and the
property is no longer community property, and this section has no
application. The parties become tenants in common in all of the
property.22
Property of the community is not liable for the contracts of the wife,
made after marriage, unless secured by a pledge or mortgage thereof
executed by the husband (sec. 57-Ar-2).
A judgment on a contract against the husband may be satisfied out
of the community, of which he is the head, thus enforcing the judgment
against the wife’s share therein, as well as the share of the husband.23
Community property is not exempt from liability for the torts of
either husband or wife.24
20 In re White’s Estate (1939), 43 N. M. 202, 89 P. (2d) 36.
211917-18 Op. Atty. Gen., p. 176.
22 Jones v. Tate (1961), 68 N. M. 258; 360 P. (2d) 920.
22 Ginn V. MacAluso (1957), 62 N. M. 375 ; 310 P. (2d) 1034.
2* McDonald v. Senn (1949), 53 N. M. 198 ; 204 P. (2d) 990.




11

THE LEGAL STATUS OF WOMEN

The husband’s “management and control” embraces the right and
duty to represent the community in its litigation. The wife is not
a necessary party.25
Whenever the husband is of unsound mind or has been convicted of
a felony and sentenced to imprisonment for more than 1 year, or has
abandoned his wife and family and left them without support, or is
a habitual drunkard or otherwise incapacitated to manage and ad­
minister the community property, the wife may petition the court as
provided by statute to substitute her as the head of the community,
with the same power of managing, administering, and disposing of
the community property, real or personal, as the husband had. The
court in its decree may place limitations on the power (secs. 57-4-5
to 57-4^9).
Written consent of the husband’s guardian is required in lieu of
the husband’s joinder in mortgages or conveyances.26
11. Damages for injury to person, property, or character

A married woman may sue and be sued as if she were unmarried
(sec. 21-6-6).
Ihe purpose of this statute is to give the wife a remedy to sue
alone for actionable wrong; it removes the common-law barrier that a
wife must join with her husband in all actions for or against her.
She may retain as her sole and separate property the proceeds from a
judgment rendered in her favor.27
Cause of action for personal injury to the wife, and resulting pain
and suffering, belongs to the wife; and the judgment and its proceeds
are her separate property. But the cause of action for damages to
the community for medical expenses, loss of services and earnings, if
any, of the wife belong to the community, and the husband, as its
head, is the proper party to bring such action.28
A wife may sue for alienation of her husband’s affections.29
12. Damages for injury by spouse to person or property

By rule of common law one spouse cannot sue the other in tort for
personal injuries. The statute providing that a woman may sue and
be sued as if she were unmarried does not create a substantive right of
action against the husband for a tort committed by him against his
wife.30
25 (Levy v. Kalaiich (1930), 35 N. M. 282 ; 295 Pac. 296.
M Frkovich v. Petranovich (1944), 48 N. M. 382 ; 151 P. (2d) 337.
Romero v. Romero (1954), 58 N. M. 201 ; 269 P. (2d) 748.
MSoto t. Vandeventer (1952), 56 N. M. 483 ; 245 P, (2d) 826.
29Murray v. Murray et ux. (1925), 30 N. M. 557 ; 240 Pac. 303.
30 Romero v. Romero, supra.
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NEW MEXICO

13. Competency of husband or wife to testify for or against each
other

In civil actions, the husband or wife of any party to the proceed­
ing is competent to give evidence on behalf of the other or of any of
the parties to the suit, except in civil proceedings involving the ques­
tion of adultery of either spouse or the husband or wife of any party
to the action (secs. 20-1-9,20-1-11).
Neither husband nor wife may be compelled to disclose any com­
munication made by the other during the marriage (sec. 20-1-12).
In criminal cases the husband or wife of the defendant may testify
in favor of, but not against, such defendant; however, he or she is a
competent witness against the defendant in a prosecution for any
unlawful assault or violence forcibly committed by the defendant on
the person of such witness. A wife is a competent witness against
her husband when he is being prosecuted for abandonment of or will­
ful failure to support her or his family (sec. 41-12-20).
In any prosecution for incest, bigamy, polygamy, unlawful cohabi­
tation, or adultery, the lawful husband or wife of the accused person
is a competent witness and may be called, but not required, to testify
without the consent of the spouse (sec. 41-12-21).
Laws attaching a privilege against the disclosure of communica­
tions between husband and wife are inapplicable to proceedings under
the Reciprocal Enforcement of Support Act. Husband and wife are
competent witnesses and may be compelled to testify to any relevant
matter, including marriage and parentage (sec. 22-19-25).
14. Right to dispose of separate property by will

Any person 21 years or over and of sound mind may dispose by will
of all his property, except what is sufficient to pay his debts and what
is given by law as privileged property to his wife or family (sec.
30-1-1). (See also number 15.)
A wife has testamentary power over any portion of the community
property which has been set apart to her by a judicial decree for her
support and maintenance. In the absence of disposition by her will,
such property goes to her descendants or heirs, exclusive of her
husband (sec. 29-1-8).
The marriage of a man or woman, whether or not it is followed by
the birth of a child, revokes a will made prior to such marriage.31
15. Inheritance rights in deceased spouse’s estate

No estate in dower or curtesy is allowed upon the death of husband
or wife (sec. 29-1-23).
81 In re Toepfer’s Estate (1904), 12 N. M. 372 ; 78 Pac. 53.




13

THE LEGAL STATUS OF WOMEN
Community property

Upon the death of the wife the entire community property, without
administration, belongs to the surviving husband, except such portion
as may have been set apart to her by a judicial decree for her support
and maintenance, which goes to her descendants or other heirs exclusive
of her husband (sec. 29-1-8).
Upon the death of the husband the entire community property goes
to the surviving wife, subject to the husband’s testamentary disposi­
tion over one-half. When the community is dissolved by the death of
the husband, the entire community property is subject to the commu­
nity debts, the husband’s debts, the funeral expenses of the husband,
the family allowance, and the charge and expenses of administration
(sec. 29-1-9).
Separate property

When any person having title to any separate estate, not other­
wise limited by marriage contract, dies without disposing of the estate
by will, it is succeeded to and must be distributed, subject to the pay­
ment of his debts, in the following manner:
One-fourth to the surviving husband or wife and the remainder
in equal shares to the children of decedent, and further as provided
by law (sec. 29-1-10).
If the intestate leaves no issue, the whole of his estate goes to the
surviving spouse (sec. 29-1-13).
When the decedent leaves a widow, all personal property which in
his hands as the head of a family would be exempt from execution,
upon inventory and appraisement, is set apart to the widow as her
property in her own right and is exempt in her hands as it was to
the decedent (sec. 29-1-11). (See number 3.)
This statute vests in the widow an unqualified right to such property
immediately upon the husband’s death.32
All provisions of the law relating to wills and to estates of deceased
persons made in regard to the widow of a deceased husband are ap­
plicable to the surviving husband of a deceased wife (sec. 29-1-22).
Damages for wrongful death

Damages in actions for wrongful death are not distributed in the
same manner as the decedent’s estate. Such damages go to the sur­
viving spouse as follows: (a) All if there are no children; (b) if
there is a surviving spouse and children or grandchildren, then equally
to each, the grandchildren taking by right of representation (sec.
22-20-3).33
33 White et al, v. Mayo et al. (1931), 35 N. M. 430 ; 299 Pae. 1068.

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NEW MEXICO

16. Provision for survivors during administration of estate

The court must make an allowance, if it is needed, to the widow and
children under 15 years of age sufficient to maintain them for 6 months
from the death of the decedent (sec. 31-4-1).
The widow is not deprived of this allowance by accepting provi­
sions of her husband’s will giving her a stated sum “in lieu of all other
demands.”33
(As to homestead provisions for the widow, see number 3.)
Summary administration

If an intestate decedent is survived by a spouse or relatives capa­
ble of inheriting, and leaves an estate of personal property only, ap­
praised at not more than $1,000, the court may grant summary ad­
ministration to the petitioner or some other suitable person as provided
by statute. After payment of the funeral expenses and distribution
of those entitled, the administrator is discharged (secs. 31-1-30,
31-1-32).
The surviving spouse or next of kin may, upon presentation of
affidavit and without procuring letters of administration, collect from
the State or any political subdivision thereof, from any corporation,
bank, or trust company, or from any other organization or individual,
up to $300 that may have been owed decedent at the time of death for
wages or salary earned. Any sum of money up to $300 which the
deceased may have left on deposit with a bank or trust company, cor­
poration, individual, or firm doing business as bankers may be collected
in like manner (secs. 31-13-1,31-13-2).
17. Right of husband or wife to disinherit the other by will

The rights of the spouses in the community estate are fixed by
statute (see number 15), or by a valid marriage settlement agreed upon
in lieu of the statute (sec. 57-3-1).
There is no statute providing for election against the testamentary
disposition of separate property.
Marriage and Divorce
18. Age of consent to marriage

No male under 21 years of age and no female under 18 years of age
may marry unless he or she obtains the consent of his or her parents,
guardian, or of the person under whose charge he or she is; and for
that purpose the presence of those parties, or a certificate in writing
authenticated before competent authority, is required (sec. 57-1-5).
88 In re Flournoy’s Estate (1917), 22 N. M. 582 ; 166 Pac. 1178.




THE LEGAL STATUS OF WOMEN

No person authorized to solemnize marriages in the State may
knowingly unite in marriage: (1) Any male under the age of 21 years
or female under the age of 18 years, without the consent of their par­
ents or guardian; (2) any male under the age of 18 years or female
under the age of 16 years, with or without the consent of their par­
ents or guardian. The court, however, may authorize marriage of
persons under the ages mentioned, in cases of seduction or bastardy
or in cases of pregnancy if such marriage would not be incestuous
(sec. 57-1-6). Violation of these provisions by either of the parties
to the marriage or by the person officiating renders the violator sub­
ject, on conviction, to a statutory fine of not less than $50 (sec. 57-1-8).
19. Common-law marriage

Common-law marriages have never been valid in New Mexico.34
20. Premarital requirements

Before a marriage license may be issued each applicant must file a
certificate from a physician showing that the applicant has been given
an examination not more than 30 days prior to the date of applica­
tion for the license, and that the applicant is not infected with venereal
diseases or is not in a stage of such diseases which may become com­
municable. Upon application the court may waive these provisions
for good cause shown (secs. 57-1-10.1, 57-1-10.2).
There is no waiting period required between the date of application
for and issuance of the license.
Marriage is a civil contract for which the consent of the contracting
parties, capable in law of contracting is essential (sec. 57-1-1).
Marriages between persons within prohibited degrees of kinship, as
defined by statute, are prohibited and void (sec. 57-1-7).
21. Interstate cooperation in marriage-law enforcement

All marriages celebrated beyond the limits of the State which are
valid according to the laws of the jurisdiction where contracted, are
likewise valid in this State and have the same force as if celebrated in
accordance with New Mexico statutes (sec. 57-1-4).
22. Annulment

No marriage between relatives within the prohibited degrees, or
between or with infants under the prohibited ages, may be declared
void except by a decree of the district court upon proper hearing. A
marriage contracted while the parties were under the legal age is to
S* In re Gabaldon’s Estate (1934), 38 N. M. 392, 397 ; 34 P. (2d) 672.

16




(Hist.)

NEW MEXICO

be held legal and binding if they continue to live together until
reaching the age at which they could contract a valid marriage. In
case of annulment of marriage of a female minor, the court may in
its discretion grant alimony until she becomes of age or remarries
(sec. 57-1-9).
A marriage may be annulled where one party had a spouse of a prior
undissolved marriage. The statutory provision for alimony in in­
stances of annulment applies only to such invalid or void marriages as
are specified in the code.35
23. Divorce

Absolute divorce may be decreed to either party on any of the
following grounds: Abandonment, adultery, impotency, cruel and
inhuman treatment, habitual drunkenness, incompatibility, or con­
viction for a felony and penitentiary imprisonment after marriage.
The husband may be granted a divorce if the wife, at the time of
marriage, was pregnant by another, not her husband, and without his
knowledge.
The wife is entitled to a divorce for neglect on the part of the
husband to support her according to his means, station in life, and
ability (sec. 22-7-1).
Incurable insanity is a ground for divorce, if the condition has
existed continuously for 5 years preceding the filing of the divorce
complaint. Strict proof is required as prescribed by statute (secs.
22-7-7 to 22-7-10).
Legal separation

When the spouses have permanently separated and no longer live
together as husband and wife, either may institute suit for a division
of property or for disposition of the children without dissolution
of the bonds of matrimony, or the wife may institute suit for alimony
alone (sec. 22-7-2).
Alimony, maintenance, and property division

In any suit for final divorce, division of property, alimony, or
custody of the children, the court may make and enforce an order
to restrain use or disposition of property of either party, or an order
for control of children, or to provide for support of wife during
pendency of suit; and it may make such order relative to expenses
of the suit as will insure the wife efficient preparation and presentation
of her case; and on final hearing the wife may be allowed a reasonable
portion of the husband’s property and alimony. The court may set
* Prince v. Freeman (1941), 45 N. M. 143 ; 112 P. (2d) 821.




17

THE LEGAL STATUS OF WOMEN

apart out of the property of the respective parties a portion thereof
for the maintenance and education of minor children, and may order
their guardianship, care, custody, maintenance, and education (sec.
22-7-6).
In divorce, separation, or support suits, the court may make allow­
ance to the wife of the husband’s separate property as alimony, and
a decree making such allowance shall have the force and effect of
vesting title of such property in the wife, and shall be a lien on the
real estate of the husband (secs. 22-7-13, 22-7-14). The court may
make allowance of property of the parents for the maintenance, edu­
cation, and support of the minor child or children, and may vest title
to such property in a guardian appointed by the court (sec. 22-7-15).
Such allowance becomes a lien on the real estate of the person charged
with such support (sec. 22-7-16).
Failure to divide the property at divorce does not affect the prop­
erty rights of either the husband or the wife; either may subsequently
institute and prosecute a suit for division and distribution thereof, or
with reference to any other matter pertaining thereto, which could
have been litigated in the original suit for divorce (sec. 22-7-22).
This section recognizes an existing present interest of the wife in the
community property during the existence of the matrimonial status,
which continues even after divorce, where the property is not divided
in the decree in the divorce case. In the absence of a statute confer­
ring on the court power to apportion community property between
the spouses, giving to one a greater interest therein than such party
had in the community, the court has no such power. On divorce
the wife is entitled to one-half of the community property, which is
not forfeited by committing adultery; subject, however, to the power
of the divorce court to make provision therefrom for the children.36
Parents and Children
24. Parents’ right to services and earnings of a minor child

The mother is entitled as fully as the father to the earnings of their
minor child or children (sec. 32-1-4). (Also see number 6.)
25. Guardianship of a minor child

The father, or in case of his death or abandonment of his family, the
mother, is the natural guardian of their minor children and has the
care of their persons and education; but in no case do they have the
38 Beals v. Ares (1919), 23 N. M. 459 ; 185 Pac. 780.

18




NEW MEXICO

care and management of the children’s estates unless they are ap­
pointed by the court for that purpose, in which event they must give
bond and security in the same manner as other guardians (sec. 32­
1-1).
Parents of a minor have equal powers, rights, and duties concern­
ing the minor. The mother is as fully entitled as the father to cus­
tody and control of their minor child or children. Where the father
and mother live apart the court, may, for good reasons, award cus­
tody and education of their minor child or children to either parent
or to some other person (sec. 32-1-4). (Code compiler’s note: Sec­
tion 32-1-1 down to the semicolon may be superseded by section
32-1-4.)
In all cases in which application is made for appointment of a
guardian for the estate of a minor, the father, or in case of his death
or abandonment of the family, the mother, or in case of divorce or
legal separation, the parent having custody of the minor, has a pre­
ferred right to be appointed as such guardian unless the right is
waived or it is shown that such parent is not a fit and competent
person (sec. 32-1-2).
A minor over 10 years of age, if he is not under the guardianship of
his parents, may select his own guardian of the person, subject to the
approval of the court (sec. 32-1-41).
A minor 14 years of age may select his own guardian, subject to
the approval of the court, unless this is a testamentary appointment,
and any preceding guardianship may be terminated (sec. 32-1-40).
The natural or adoptive parents of an unemancipated minor under
18 years of age, living with his parents, who maliciously or willfully
destroys property, are liable for such damages in an amount not in
excess of $500 in addition to taxable court costs (sec. 22-21-1).
Guardianship of the person of a minor ceases with marriage. (See
number 2.)
26. Appointment of testamentary guardian for a minor child

The father or mother, if competent, may appoint by will a guardian
for their unmarried minor child. But such appointment may not take
effect to deprive the surviving parent of the guardianship during his
or her lifetime, unless such surviving parent expressly consents or is
proved to be not a fit and competent person to have the guardianship
•of the child (sec. 32-1-5).




19

THE LEGAL STATUS OF WOMEN

27. Inheritance—child
Inheritance from a child

When, an intestate leaves no issue, the whole of his estate goes to
his spouse; if he leaves no spouse, the portion which would have gone
to the spouse goes to his parents. When one of his parents is dead,
the portion which would have gone to such deceased parent goes to
the surviving parent (secs. 29-1-13,29-1-22).
If one of the children of the intestate is dead, the child’s heirs
inherit his share as though the child had outlived his parent (sec.
29-1-12).
Inheritance from a parent

See number 15.
Damages for wrongful death

Damages for wrongful death are distributed to the children of the
deceased as follows: (a) When there is a surviving spouse and chil­
dren or grandchildren, then equally to each, the grandchildren taking
by right of representation; (b) if there is no spouse, to such children
and grandchildren by right of representation.
If the deceased is a minor, childless and unmarried, then the damages
go to the father and mother, who have an equal interest in the judg­
ment; or if either of them is dead, to the survivor (sec. 22-20-3).
28. Child born out of wedlock

The mother owes to her child bom out of wedlock and not legiti­
mated, maintenance and support as if it were bom in wedlock (sec.
22-1-1). The father owes the child maintenance and support, having
regard to the condition in life of the mother, until the child is 16
years of age or, if the child is physically and mentally incapable of
working, until the child arrives at full age. The father is also liable
to pay the expenses of the mother’s pregnancy and confinement and
of the child’s funeral (sec. 22-4—2). The mother may recover from
the father an equal share of the support which she has furnished
or owes to the child, or in the case of her total or partial inability,
the additional amount of the support she owes. She may recover
not more than 2 years’ support furnished prior to the bringing of
the action unless demand was previously made in writing (sec.
22-4-3).
The father is liable to third parties for support furnished the child
if paternity has been judicially established or acknowledged by the

20




NEW MEXICO

father in writing, or if he has partially performed the obligations
imposed on him (sec. 22-4-1).
An agreement or compromise for support may be made only when
adequate provision is fully secured and with the approval of the
court, which bars other remedies of the mother and child (sec.
22-4-19).
Paternity proceedings may be instituted during pregnancy of the
mother, or after birth of the illegitimate child, but the trial may not
be had until after birth, except with the consent of the putative father
(secs. 22-4-9, 22-4-25). Support proceedings may not be brought
after 2 years from the birth of the child unless paternity has been
judicially established, or has been acknowledged by the father in
writing or by furnishing support (sec. 22-4-24).
If the defendant in the paternity proceeding is adjudged the father
of the child, the court’s order declares the fact and makes the defend­
ant responsible for the child’s support, in annual amounts, until it
is 16 years of age or dies. The judgment may also include expenses
in connection with the birth of the child (sec. 22-4-16).
The court may enjoin the adjudged father from transferring or
disposing of his property. The complaining mother’s rights under
the judgment may be enforced under attachment or garnishment
laws and by contempt proceedings. The judgment, when rendered,
is a lien on all real estate of the adjudged father when the tran­
script is filed as required by law, and is enforceable as other judgments
(sec. 22-4-18). If paternity is judicially established or acknowledged
by the father in writing, or there has been part payment of his obliga­
tion, his failure to support the child fully subjects him on conviction
to a fine not exceeding $1,000, or imprisonment of not more than 2
years, or both (sec. 22-4-21).
The obligation so determined is enforceable against the estate of
the father, subject and subordinate to like claims to support by his
widow and lawful children (sec. 22-4-6).
Illegitimate children become legitimate by the intermarriage of
their parents (sec. 29-1-20).
Children of marriages declared void due to nonage or incestuous
relationship are deemed legitimate, with the right of inheritance from
both parents (sec. 57-1-9).
The presumption of law is that a child bom in wedlock is legiti­
mate, and the mother is not a competent witness to prove that the
child was not begotten by the man who became her husband before
its birth.37
x Gratesv. Garcia (1915), 20 N. M. 158 ; 148 Pac. 493.




21

THE LEGAL STATUS OF WOMEN

29. Inheritance—child born out of wedlock

Illegitimate children inherit from the mother and the mother from
the children. They inherit from the father whenever they have been
recognized by him as his children, by a signed instrument which
shows on its face that it was signed with the intent of recognizing
such children as heirs (sec. 29-1-18).
Under such circumstances, if the recognition of relationship has
been mutual, the father may inherit from his illegitimate child, but
in thus inheriting from an illegitimate child, the mother and her
heirs take preference over the father and his heirs (sec. 29-1-19).
The illegitimate child inherits through, as well as from, his mother,
and the heirs of the mother may inherit from the child. If the
recognition requirement is met, the same applies to the father’skindred.*
38
POLITICAL RIGHTS
30. Domicile of a married woman

The husband is the head of the family. He may choose any reason­
able place or mode of living, and the wife must conform thereto
(sec. 57-2-2).
The husband’s voting residence governs that of his wife who is
living with him; single women over 21 years of age, widows, divorcees
and married women living apart from their husbands for good cause
may establish their own voting residence.39
To institute divorce proceedings the statute requires that the plain­
tiff must have actually resided in good faith in the State for 1 year;
but where the wife is the plaintiff, the residence of the husband in
this State inures to her benefit (sec. 22-7-4).
31. Public office—eligibility of women

Every citizen of the United States who is a legal resident of the
State and a qualified elector therein is qualified to hold any public
office, except as otherwise provided by the Constitution.
The right to hold public office in the State may not be denied or
abridged on account of sex, and wherever the masculine gender is
used in the Constitution in defining the qualifications for specific
offices, it is to be construed to include the feminine gender; provided,
however, that the payment of public-road poll tax, school poll tax,
38 State et al. v. Chaves et al. (1938), 42
38 1985—86 Op. Atty. den., p. 97.

22




N. M.

509 ; 82 P. (2d) 900.

NEW MEXICO

or service on juries may not be made a prerequisite to the right of a
female to vote or hold office (Const., art. 7, sec. 2).
Women may hold the office of notary public and such other ap­
pointive offices as may be provided by law (Const., art. 20, sec. 11).
32. Jury service—eligibility of women

Women serve on juries subject to the same qualifications and
exemptions as men (sec. 19-1-1).




o

23