*

directly assailed the decision of Corbett v. Poelnitz, and did not agree that the court could change the law, so as to adapt it to the fashion of the times. They declared, however, without touching the authority of the decision, that upon a volun- *160 tary separation of husband and wife, without a permanent fund for her separate use, she could not be sued alone as a feme sole. Afterwards, in Clayton v. Adams, (a) the court of K. B. went a step further towards overturning the authority of Corbett v. Poelnitz, and held, that though the wife lived apart from her husband, and carried on a separate trade, she was not suable; for if she could be sued as a feme sole, she might be taken in execution, which would operate as a divorce between husband and wife. At last, in Marshall v. Rutton, (b) the K. B. decided, in 1800, after a very solemn argument before all the judges, that a feme covert could not contract and be sued as a feme sole, even though she be living apart from her husband, with his consent, and have a separate maintenance secured to her by deed. The court said, that the husband and wife, being but one person in law, were unable to contract with each other, and that such a contract, with the consequences attached to it, of giving the wife a capacity to contract, and to sue and be sued, would contravene the general policy of the law in settling the relations of domestic life, and would introduce all the confusion and inconvenience which must necessarily result from so anomalous and mixed a character as such a married woman would be. The only way in which such a separation can be safe and effectual is, by having recourse to trustees, in whom the property, of which it is intended the wife shall have the disposition, may vest, uncontrolled by the rights of the husband; and it would fall within the province of a court of equity to recognize and enforce such a trust. (e) At law, a woman cannot be sued as a feme sole while the relation of marriage subsists, and she and her husband are living under the same government. (d)

(a) 6 Term Rep. 604.

(b) Term Rep. 545.

(c) 2 Story Eq. Jur. 652. Clancy on the Rights of Husband and Wife, b. 4, c. 3, et seq. Beetle v. Wilson, 14 Ohio, 257. In this last case, it was adjudged that articles of separation between husband and wife, through the medium of a trustee, for her support, were valid.

(d) It has been adjudged, in Benedict v. Montgomery, 7 Watts & Serg. 238, that if husband and wife join in a sale of her real estate, and he takes the proceeds to his own use, there is no implied fund raised in favor of the wife.

*161

Lord Eldon, afterwards, in the case of Lord St. John v. Lady St. John, (e) speaking of these decisions at law, expressed *himself very decidedly against the policy and the power of a feme covert becoming a feme sole by a deed of separation. She was incompetent to contract for the husband; and, if separated, she could not be a witness against her husband; she could not commit felony in his presence; she must follow the settlement of her husband; her husband would be suable for her trespass. In short, the old rule is deemed to be completely reestablished, that an action at law cannot be maintained against a married woman, unless her husband has abjured the realm. (a)

But if the husband and wife part by consent, and he secures to her a separate maintenance, suitable to his condition and circumstances in life, and pays it according to agreement, he is not answerable even for necessaries; and the general reputation of the separation will, in that case, be sufficient. This was so ruled by Holt, Ch. J. in Todd v. Stoakes, (b) and this general doctrine was conceded in the modern case of Nurse v. Craig, (c) in which it was held, that if the husband fails to pay the allowance, according to stipulation in the deed of separation, the person who supplies the wife with necessaries can sue the husband upon an indebitatus assumpsit. This rule, in all its parts, was adopted by the Supreme Court of New York, in Baker v. Barney. (d) But our courts have not gone further, and have never adopted the rule in Corbett v. Poelnitz, (e) and I apprehend that the general rule of the common law, as understood before and since that case, is to be considered the law in this country; though, per*162 haps, not exactly under the same straitened limitation mentioned in the books. (a) 1

(e) 11 Vesey, 537.

*

(a) See the observation of the Master of the Rolls, in 3 Vesey, 443, 444, 445. (b) Salk. 116.

(c) 5 Bos. & Pull. 2 (N. S.) 148.

(d) 8 Johns. 72. The same rule applies where the husband and wife are separated by a divorce a mensa et thoro, with an allowance to the wife for alimony, and the husband omits to pay it. Hunt v. De Blaquiere, 5 Bing. 550.

(e) See 2 Halst. (N. J.) 150, where that case was expressly condemned.

(a) In some of the stafes, as Pennsylvania and South Carolina, a wife may act as a feme sole trader, and become liable, as such, in imitation of the custom of London. Act

1 Where a wife, having been abandoned by her husband, engaged in business and sold

IV. Wife's capacity in equity.

(1.) Of property in trust for wife.

At common law a married woman was not allowed to possess personal property independent of her husband. But in equity she is allowed, through the medium of a trustee, to enjoy property as freely as a feme sole; and it is not unusual to convey or bequeath property to a trustee in trust, to pay the interest or income thereof to the wife, for her separate use, free from the debts, control, or interference of her husband, and payable upon her separate order or receipt, at and after the times that the payments respectively become due, and after her death in trust for her issue. In such cases, the husband has no interest in the property, though after the interest is actually received by the wife, it then might be considered as part of the husband's personal estate. (b) * It is not necessary that the trustee should be a stranger. The

2

of 1718, Purdon's Dig. 424. Burke v. Winkle, 2 Serg. & Rawle, 189. Newbiggin v. Pillans, 2 Bay, 162. State Reports in Equity, (S. C.) 148, 149. But, for greater protection to the wife, no suit can be brought, in South Carolina, by or against a feme covert sole trader, unless her husband be joined. 4 M'Cord, 413; and in Pennsylvania, the privilege extends only to the wives of husbands gone to sea, and whose wives are left at shop-keeping, or to work at any trade for a livelihood. In Louisiana, the wife has peculiar powers and privileges, and may be a public merchant, and bind herself, yet she cannot contract a debt by note without the authorization of her husband. Civil Code of Louisiana, art. 128, 2412. 12 Louisiana, 13.

(b) Lee v. Prieaux, 3 Bro. C. C. 381. Norris v. Hemingway, 1 Hagg. Eccl. 4. Ex parte Gadsden, S. C. Law Journal, No. 3, 343. Carroll v. Lee, 3 Gill & Johns. 504.

property in fact acquired by her in such business, it was held, in an action asserting the title of the husband, that his assent to her disposal of the property was to be presumed, and could not be recalled. Lawrence v. Spear, 17 Cal. 421. By a late statute in Massachusetts, (1855, ch. 304,) a married woman may carry on any trade and perform any labor or services on her own sole and separate account; and she may sue and be sued as a feme sole in all matters relating to her property.

Under a similar statute, in Maine, it is held, that the husband cannot be charged with the price of goods purchased by the wife, in her separate business transactions, even though she devote a portion of the proceeds of such property to the support of their children., Colby v. Lamson, 39 Maine, 119. Oxnard v. Swanton, Id. 125. Smith v. Gorman, 41 Maine, 405. Under the statutes of New York, a married woman, being a stockholder in a bank, may be assessed with the other stockholders, on its insolvency, in order to pay its creditors. Reciprocity Bank, 22 N. Y. 9.

2 If the real estate of a wife, secured to her by an ante-nuptial settlement, be sold and converted into furniture, intended to be held in trust for her, such furniture cannot be reached by the creditors of the husband. Danforth v. Woods, 11 Paige, 9. Merritt v. Lyon, 3 Barb. (N. Y.) 110. It is otherwise where the rents and profits of her real estate are so invested generally, and with no intention of keeping the furniture as her separate property. Shirley v. Shirley, 9 Paige, 363.

husband himself may be the trustee; and if property be settled to a married woman's separate use, and no trustee be appointed, the Court of Chancery will protect her interest therein against the creditors of the husband, and the husband may be con*163 sidered as such trustee, notwithstanding he was not a party to the instrument under which the wife claims. (a)1

*

Beable v. Dodd, 1 Term, 193. In this last case it was established at law, that a gift or devise to the sole and separate use of a feme sole, independent of the control and debts of a future husband, was valid, but the feme sole might, by a marriage settlement, in consideration of marriage, convey the estate to her husband. Being for her benefit, she might waive it.

(a) Bennet v. Davis, 2 P. Wms. 316. More v. Freeman, Bunb. 205. Hamilton v. Bishop, 8 Yerger, 33. Abbott Ch. J., 2 Carr. & Pa. 62. Newlands v. Paynter, 4 My. & Cr. 408. Picquet v. Swan, 4 Mason, 455. Escheator v. Smith, 4 M'Cord, 452. Clancy on the Rights of Married Women, pp. 15-30. (Clancy's Hus. & Wife, b. 3, c. 1.) Carroll v. Lee, 3 Gill & Johns. 504. Wallingsford v. Allen, 10 Peters U. S. 583. Harkins v. Coalter, 2 Porter's Ala. 463. McKennan v. Phillips, 6 Wharton, 576. Trenton Banking Company v. Woodruff, 1 Green Ch. (N. J.) 117. Shirley v. Shirley, 9 Paige, 363. Griffith v. Griffith, 5 B. Mon. 115. The intention to create a trust estate for the wife must distinctly appear. Clancy, 262, 268. In Griffith v. Griffith, it was held, that any words in giving personal estate to the wife, showing an intention to secure a use to the wife separately, would suffice, and that no particular form of expression was necessary for her own proper use is sufficient. The wife may give or lend the income

1 Hutchins v. Dixen, 11 Md. 29. Gover v. Owings, 16 Md. 91.

2 For forms of expression which have been held sufficient to create a separate use, see Woodrum v. Kirkpatrick, 2 Swan, 218. Fears v. Brooks, 12 Geo. 195. Strong v. Gregory, 19 Ala. 146. Petty v. Boothe, Id. 633.

The words "for me and in my name," in a power of attorney given by the wife to the husband, do not reserve a separate interest in the money received under it. Turton v. Turton, 6 Md. 375. A bequest of a legacy to the wife "to hold to her and her heirs forever," does not exclude the husband's right to reduce it to possession. Wells v. Tyler, 5 Foster, 340. A devise to a wife "to be by her freely enjoyed to every intent and purpose as her own in every respect," held not to create a separate estate. Wilson v. Bailor, 3 Strobh. Eq. 258. And see Houston v. Embry, 1 Sneed, 480. Bryan v. Duncan, 11 Geo. 67. Goodrum v. Goodrum, 8 Ired. Eq. (N. C.) 313. Clevenstine's Appeal, 15 Penn. 495. Jenkins v. McConico, 26 Ala. 213. Betts v. Betts, 18 Ala. 787. The mere appointment of a trustee does not create a separate interest in the wife. Williams v. Maull, 20 Ala. 721. Nor will a devise of stock to a married woman, "free from the control, &c. of A, her husband," make the fund separate property as against a second husband. Moore v. Morris, 4 Drewry, 33.

To give effect to the contract of a third person in favor of a wife, it is only necessary that there should be a clear assent of the husband thereto. So as between the husband and wife, a deposit by him in a bank to her name and credit, and the delivery of the deposit book to her, will inure to her benefit, as against the heirs and legatees of the husband. Fisk v. Cushman, 6 Cush. 20. A delivery of the money or of the evidence of the deposit is indispensable to the validity of the gift. Brown v. Brown, 23 Barb. (N. Y.) 565.

A promissory note given by a husband to his wife for the amount of checks received from her and drawn on her separate banking account, and upon moneys settled to her separate use, was held a good declaration of trust by the husband in favor of the wife. Murray v. Glasse, 21 E. L. & Eq. 51. And see Darkin v. Darkin, 23 Id. 593.

Where the husband stipulates, before marriage, either that his wife shall enjoy her own property, or that she shall be entitled to

of her separate estate, if at her disposal, to her husband or to any other person, and he will be accountable for it. Towers v. Hagner, 3 Wharton, Penn. 48. Where a testator directed a share of the proceeds of his estate to be paid into the hands of his daughter, for her own use and benefit, and there was no intervention of trustees, and the gift was absolute, it was held, in that case, not to be a gift to her separate use; and the authority of the case of Hartley v. Hurle, 5 Vesey, 540, was shaken. Tyler v. Lake, 4 Simons, 351. In Faulkner v. Faulkner, 3 Leigh, 255, it was also decided that at law a marriage settlement, without the intervention of a trustee, would not avail to secure the property to the wife, as against the husband. So, in Simpson v. Simpson, 4 Dana K. 141, it was held, that though a valid agreement for a separation between husband and wife, and for a separate allowance for her support, might be made through the medium of a third party as a trustee for the wife, and by whom the contract may be enforced, yet that where there was no third party, no suit could be maintained, either at law or equity, on such a contract. The court thought the judiciary had no power to move one step in advance of the legislation and uniform judicial precedents on the subject. But if before marriage, and in contemplation of marriage, the husband conveys directly to his intended wife, without the intervention of a trustee, personal property, and she marries, and dies without issue of the marriage, it was held that the property descended to her heirs, and that the marital rights of the husband did not attach. Allen v. Rumph, 2 Hill, Ch. (S. C.) 1. In Price v. Bigham, 7 Harr. & Johns, 296, where real estate was, after marriage, conveyed in trust for the separate use of the wife, with power to her to sell by deed, she was allowed to charge the estate with the payment of her debts, and equity enforced the contract by decreeing a sale of the estate. So a feme covert, having a separate estate and living apart from her husband, may charge it by her general engagements or verbal promise, without any particular reference to that estate, as well as by a written instrument; and the creditor may reach it through a suit instituted in equity against her and her trustees. Murray v. Barlee, 3 Milne & Keen, 209. 4 Simons, 82. She may charge her separate maintenance by accepting a bill of exchange. It amounts to a power of appointment pro tanto of her separate estate, but the vice-chancellor said that the court could not subject her separate property to general demands.3

A wife joining with her husband as surety, in making a promissory note, does not charge her separate estate in equity with the payment of it. Yale v. Dederer, 18 N. Y. 265, and 22 N. Y. 450, overruling the same case, 21 Barb. (N. Y.) 286. These cases, and Andriot v. Lawrence, 33 Barb. (N. Y.) 142, tend to establish the doctrine, that even under the New ' York Married Women Acts of 1848 and 1849, the want of power of a married woman to make executory contracts, not relating to her separate property, remains as at common law; and that where her separate property is affected with a charge, the charge must be supported either by evidence of her intention to charge her separate property, contained in the instrument by which the charge is supposed to be effected, or else by proof that the consideration was for the direct benefit of the separate estate; and the rule of the civil law, as administered in Louisiana, seems to be the same in substance. Moussier v. Zunts, 14 Lou. Ann. 15. And see Bell v. Kellar, 13 B. Mon. (Ky.) 381. Ozley v. Ikelheimer, 26 Ala. 332. Collins v. Rudolph, 19 Id. 616. In Conn v. Conn. 1 Md. Ch. 212, it is held, that, in order to charge the wife's separate estate, it must be shown that her contract was made with direct reference to that estate, or upon her express agreement to that effect. Cherry v. Clements, 10 Humph 551. Burch v. Breckinridge, 16 B. Mon. (Ky.) 482. Koontz v. Nabb, 16 Ind. 549.