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either that his wife shall enjoy her own property, or that she shall be entitled to a certain benefit out of his estate, he will be

Where a testator directed a

for it. Towers v. Hagner, 3 Wharton's Penn. Rep. 48.
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 abso-
lute, 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's
Rep. 351. In Faulkner v. Faulkner, 3 Leigh's Rep. 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's K. Rep. 141, it was held, that though a valid agreement for a separation be-
tween 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 con-
tract may be enforced, yet that where there was no third party, no suit could be main-
tained, either at law or in 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 pre-
cedents 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's S. C. Ch. Rep. 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 Mylne & Keen, 209. 4 Simons, 82. She may charge her sepa-
rate maintenance by accepting a bill of exchange. It amounts to a power of appoint-
ment pro tanto of her separate estate, but the vice-chancellor said that the court could
not subject her separate property to general demands. Stuart v. Kirkwall, 3 Madd.
(387) 200, Am. ed. The cases on this point are contradictory. The court of chan-
cery never provides for the children, living the wife, out of her separate property. She
is not bound to provide for the children, or her husband, out of the property settled
to her separate use. The husband is left to maintain her and the children. In the
case of Anne Walker, Cases temp. Sugden by Lloyd & Goold, pp. 299, 328, 332.2

1 A wife joining with her husband in making a promissory note charges her separate estate in equity with the payment of it. Yale v. Dederer, 21 Barb. 286. And see Bell v. Kellar, 13 B. Mon. 381. Ozley v. Ikelheimer, 26 Ala. 332. Collins v. Rudolph, 19 id. 616. In Conn v. Conn, 1 Maryl. 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. 482.

2 See Mayer v. Galluchat, 6 Rich. Eq. 1. Callahan v. Patterson, 4 Texas, 61. Wylly v. Collins, 9 Georg. 223. Tupper v. Fuller, 7 Rich. Eq. 170.

200

bound in equity to perform his agreement, even though it was entered into with the wife herself, and became suspended at law by his subsequent marriage. (a) Gifts from the husband to the wife may be supported as her separate property, if they be not prejudicial to creditors, even without the intervention of trustees; (b) and where the husband after marriage, agreed, in writing, to settle part of the wife's property upon her, the agreement was held to enure to the benefit of the children, and that the wife herself could not waive it. (c)

(a) It is to be considered as well settled, say the court in Stilley v. Folger, 14 Ohio, Rep. 649, that almost any bona fide and reasonable agreement, made before marriage, to secure the wife either in the enjoyment of her own property or a portion of that of her husband, whether during coverture or after his death, will be carried into execution in chancery.

(b) Case of the Countess Cowper, before Sir Joseph Jekyll, cited in 1 Atk. Rep. 271, 3 Ibid. 293. Slanning v. Style, 3 P. Wms. 334. More v. Freeman, Bunb. Rep. 205. Lucas v. Lucas, 1 Atk. Rep. 270. 3 Ibid. 393. Brinkman v. Brinkman, cited in 3 Atk. Rep. 394. Rich v. Cockell, 9 Vesey, 369. Walter v. Hodge, 2 Swanston, 97. S. C. 1 Wilson's Ch. Rep. 445. Neufville v. Thomson, 3 Edwards's N. Y. Ch. Rep. 92. Taylor, Ch. J., in Liles v. Fleming, 1 Dev. Eq. 187. The English statute of 3 & 4 William IV. has now given sanction to this doctrine, and the husband is allowed to make a conveyance to his wife without the intervention of a trustee. In Malony v. Kennedy, 10 Simons, 254, it was held, that where there are dividends on property settled to the separate use of the wife, and she makes no disposition of them by will, they pass by law to the husband in his marital right. The money must remain in the hands of trustees, to protect it from the husband.

In Graham v. Londonderry, 3 Atk. 393, it was held, that a gift to a wife by a third person, or by the husband, is construed to be a gift to her separate use, and she is entitled to the same in her own right as her separate estate; but mere ornaments for her parlor are considered as paraphernalia, and the husband may alien them in his lifetime; but if he only pledges them, and on his death leaves personal estate sufficient to pay his debts and redeem them, the widow is entitled to that redemption.

(c) Fenner v. Taylor, 1 Simons's Rep. 169. In South Carolina, all marriage settlements, ante-nuptial or post-nuptial, are required, by statute of 1823, to be recorded within three months after their execution; and any settlement of property by the husband on the wife after marriage, is a post-nuptial settlement within the rule. In default of such record, the marriage settlement is declared void. Marriage settlements,

1 Marriage articles between the guardians of an infant and her intended husband are not obligatory on her. Healy v. Rowan, 5 Gratt. 414.

3 Barron v. Barron, 24 Verm. 375. Though an insolvent husband cannot give property to his wife, he may give his personal services, and her estate will not be made chargeable to his creditors. Hoot v. Sorrell, 11 Ala. R. 386. So he may secure to her sole and separate use the proceeds of his labor. Hodges v. Cobb, 8 Rich. 50. See Messenger . Clark, Eng. Law Journal Rep. Excheq. p. 306, Oct. 1850.

The wife being enabled in equity to act upon property in the hands of her trustees, she is treated in that court as having interests and obligations distinct from those of her husband. *164 She may institute a suit by her next friend, and she may obtain an order to defend separately suits against her; and when compelled to sue her husband in equity, the court may order him to make her a reasonable allowance in money to carry on the suit. (a)

(2.) Her power under settlements.

The general grounds upon which equity allows a wife to institute a suit against her husband, are when any thing is given to her separate use, or her husband refuses to perform marriage articles, or articles for a separate maintenance; or where the wife, being deserted by her husband, hath acquired by her labor a separate property, of which he has plundered her. The acquisitions of the wife, in such a case, are her separate property, and she may dispose of them by will or otherwise. (b) It is the settled rule in equity, that a feme covert, in regard to her separate property, is considered a feme sole, and may, by her contracts, bind such separate estate.1 The power of appointment is inci

strictly speaking, are those settlements only, whether made before or after marriage, which are made in consideration of marriage only; but the statute in South Carolina was intended to apply to all post-nuptial settlements on the wife. Price v. White and others, Carolina Law Journal, No. 3. See, also, in the same work, p. 352, an essay on the registry acts of South Carolina, pointing out their imperfections, and suggesting amendments. The act of South Carolina, of 1792, required all marriage contracts and settlements to specify, either in the instrument or in a schedule annexed, the property intended to be settled, and, in default thereof, the settlement is void as to creditors and purchasers. In Virginia, deeds of settlement upon marriage, wherein either lands, slaves, or personal property shall be settled, or covenanted to be left or paid at the death of the party, or otherwise, shall be void as to creditors and subsequent purchasers for valuable consideration without notice, unless acknowledged or proved, and recorded, &c. 1 Revised Code, ch. 99, sec. 4. If not recorded, they are void only as against the creditors of the wife. Land v. Jeffries, 5 Rand. Rep. 211. Pierce v. Turner, 5 Cranch, 154.

(a) Mix v. Mix, 1 Johns. Ch. Rep. 108. Denton v. Denton, Ibid. 364, 441. Wilson v. Wilson, 2 Haggard's Consist. Rep. 203. N. Y. Revised Statutes, vol. ii. p. 148,

sec. 58.

(b) Cecil v. Juxon, 1 Atk. Rep. 278. Starrett v. Wynn, 17 Serg. & Rawle, 130.

1 The F. Ins. Co. v. Bay, 4 Barb. S. C. Rep. 407, affirmed in the Court of Appeals, 4 Comst. 9; Strong v. Skinner, 4 Barb. 546. Dickerman v. Abrahams, 21 Barb. 551. But

dent to the power of enjoyment of her separate property. It is sufficient that there is an intention to charge her separate estate, and the contract of a debt by her during coverture, is a presumption of that intention; and the latter decisions held her separate estate responsible, without showing any promise. Her contract amounts to an appointment. (a) Though a woman may be proceeded against in equity without her husband, and though her separate estate be liable for her debts dum sola, yet the court cannot make a personal decree against her for the payment of a debt. All it can do is, to call forth her separate personal property in the hands of trustees, and to direct the application of it. (b)2 When the wife has separate property, the relief afforded

(a) 2 Story's Eq. Juris. 628, 773. Gardner v. Gardner, 22 Wendell, 528. Mallory v. Vanderheyden, by Vice-Chancellor Parker, of the 3d Circuit. N. Y. Legal Observer, No. 4, January 7th, 1846. The ground on which a creditor may proceed against the separate estate of a married woman, for a debt not charged upon her estate, pursuant to a deed of settlement, must be by showing that the debt was contracted for the benefit of her separate estate, or for her own benefit, upon the credit of the separate estate. Curtis v. Engel, 2 Sandford's Ch. Rep. 287, 288.

(6) Hulme v. Tenant, 1 Bro. Rep. 16. Norton v. Turville, 2 P. Wms. 144. Lillia v. Airey, 1 Vesey, jun. 277. Lord Loughborough, 2 Vesey, jun. 145. Dowling v. Maguire, 1 Lloyd & Goold's Rep. t. Plunkett, 19. Montgomery v. Eveleigh, 1 M'Cord's Ch. R. 267. Maywood & Patterson v. Johnson, 1 Hill's Ch. R. 228. Vide post, 165,

previously to the late Married Women's Property Acts, in New York, an instrument, which conferred upon a wife the power to charge and dispose of her separate estate during coverture, as freely as if she were a feme sole, did not empower her to make a testamentary disposition of it. Wadhams v. Am. Home Miss. Society, 2 Kern. 415, reversing the judgment in the Supreme Court. 10 Barb. 597.

While the general rule of equity, as to the power of a married woman to charge her estate, under a settlement to her separate use, remains as stated in the text, under the Revised Statutes of New York, regulating trusts, such powers do not exist. In Noyes v. Blakeman, (8 Sandford's S. C. Rep. 531,) it is held, that, since the Revised Statutes, where real estate is settled to a married woman's separate use, neither the estate, nor the rents and profits, can be charged for any debt or liability created or imposed on it by her. It is no longer her estate. The whole estate is in the trustees, and her interest is inalienable. This decision was affirmed on appeal. Noyes v. Blakeman, 2 Seld. 567.

1 Vanderheyden riage, the remedy against the separate property of the wife is suspended by marriage. And a promise, by the husband and wife, to pay such debt out of funds other than her separate property, will not enable the creditor to reach the separate property, nor will a discharge of her husband under the bankrupt laws. The decision of this case, in 3 Barb. Ch. 9, so far as inconsistent with the foregoing, must be considered as reversed. But see Dickson v. Miller, 11 S. & M. Rep. 594.

v. Mallory, 1 Comst. R. 452. Where the debt is contracted before mar

Rogers v. Ludlow, 3 Sandf. Ch. R. 104. A debt contracted by a married woman is prima facie chargeable on her separate estate. Greenough v. Wiggington, 2 Greene, (Iowa,)

VOL. II.

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is by following it in the hands of trustees; and, in this way, courts of equity can attain a pure and perfect justice, which courts of law are unable to reach.

If, by marriage settlement, the real and personal estate of the wife be secured to her separate use, the husband is accountable for that part of it which comes to his hands; and a feme covert, with respect to her separate property, is to be considered * 165 a feme sole sub modo only, or to the extent of the power clearly given her by the marriage settlement. Her power of disposition is to be exercised according to the mode prescribed in the deed or will under which she becomes entitled to the property; and if she has a power of appointment by will, she can.

166. Prater's Law of Husband and Wife, 109. North American Coal Co. v. Dyett, 7 Paige, 1. Gardner v. Gardner, ib. 112. If the wife has separate property, and lives apart from her husband, that property will be liable in equity to her contracts, though they do not specially refer to that property. Lord Kenyon, in Marshall v. Rutton, 8 Term Rep. 545. Murray v. Barlee, 4 Simons's Rep. 82. Gardner v. Gardner, ut sup. and S. C. 22 Wendell, 526. In Bullpin v. Clarke, 17 Vesey, 365, the master of the rolls decreed, that a debt by promissory note, given by a wife for money loaned to her for her separate use, be paid by her trustees out of her separate estate. So, in Stuart v. Kirkwall, 3 Madd. Ch. Rep. 387, a similar decree was made on a bill against husband and wife, on her acceptance of a bill of exchange, the vice-chancellor considering the act as an appointment by her pro tanto of her separate estate. The courts of equity in South Carolina have so far departed from the English doctrine, that the wife cannot, by her own act merely, charge the separate estate; but the court will look into the circumstances, and see that a proper case existed, even if the appropriation was by herself, for the necessary support of herself and family. The husband cannot do it. Maywood v. Johnston, 1 Hill's Ch. Rep. 236.

435.
But the judgment must be in rem. It must charge her estate. Dickerman v. Abra-
hams, 21 Barb. 551. She is not personally liable, though she has joined with her husband.
Sweeney v. Smith, 15 B. Mon. 325; Lewis v. Yale, 4 Flor. 418. Where the credit is given
exclusively to the married woman, for goods sold to her, it is held, in Georgia, that the
promise of the husband to pay is void by the statute of frauds. Connerat v. Goldsmith,
6 Georgia, 14.

1 Courts of equity will not interfere to reform an instrument giving a wife a right of disposing of her property, except upon the most overwhelming proof. Rogers v. Smith, 4 Barr's R. 93.

Where a woman by the marriage settlement was secured the control of her personal property forever, and died without having made any disposition of it, it was held to have become absolutely the property of the husband. Brown v. Brown, 6 Humph. R. 127. See, also, Wilkinson v. Wright, 6 B. Mon. R. 576.

If a wife invest the proceeds of lands, of which, under the marriage settlement, she had the right of disposal, in other lands, it has been held that she has not a right to dispose of the subsequently acquired lands. Newlin v. Freeman, 4 Ired. Eq. R, 312.

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