for years of the wife's land, and she accepts rent after his death, she is liable on the covenants in the lease; for, by the acceptance of the rent, she affirms the lease, though she was at liberty, after her husband's death, if she had so chosen, to disaffirm it. (a)

(3.) Protection against her covenants.

* 168

This doctrine, that the wife can be held bound to answer in damages after her husband's death, on her covenant of 'warranty, entered into during coverture, is not considered by the courts in this country to be law; and it is certainly contrary to the settled principle of the common law, that the wife was incapable of binding herself by contract.1 In the Supreme Court of Massachusetts, (b) it has been repeatedly held, that a wife was not liable on the covenants in her deed, further than they might operate by way of estoppel; and though the question in these cases arose while the wife was still married, yet the objection went to destroy altogether the effect of the covenant. So, also, in Jackson v. Vanderheyden, (c) it was declared, that the wife could not bind herself personally by a covenant, and that a covenant of warranty, inserted in her deed, would not even estop her from asserting a subsequently acquired interest in the same lands.2

Though a wife may convey her estate by deed, she will not

(a) 2 Saund. Rep. 180, note 9. Worthington v. Young, 6 Ohio Rep. 313. (b) Fowler v. Shearer, 7 Mass. Rep. 21. Colcord v. Swan, Ibid. 291.

(c) 17 Johns. Rep. 167. Martin v. Dwelly, 6 Wendell's Rep. 1, S. P. This last point as to estoppel, is contrary to the cases of Hill v. West, 8 Ohio Rep. 225. Colcord v. Swan, 7 Mass. Rep. 291. Ibid. 21. 4 Bibb, Kentucky Rep. 436.

Watkins v. Halstead, 2 Sandf. (Law) R. 311. In this case it was held, that a promise by a woman, after her divorce, to pay for goods furnished her during coverture, was not binding in law, for want of consideration.

A contingent remainder cannot be conveyed, until the contingency happen, except by estoppel, and therefore cannot be conveyed (under the New Jersey Statute) by a married woman. Den v. Demarest, 1 New Jersey R. 525.

In New Jersey, by a late statute, (Laws 1857, c. 189,) any married woman of full age who joins with her husband in the execution of a deed, may enter into covenants for title, of warranty, or against incumbrances; and such covenants shall have the same force and effect as if she were sole.

2 Lowell v. Daniels, 2 Gray, 161. Dominick v. Michael, 4 Sandf. 374. The rule is the same where the deed is a joint one of herself and her husband, of property he holds in her right. Carpenter v. Schermerhorn, 2 Barb. Ch. R. 314.

be bound by a covenant or agreement to levy a fine or convey her estate. The agreement by a feme covert, with the assent of her husband, for a sale of her real estate, is absolutely void at law, and the courts of equity never enforce such a contract against her. (a) In the execution of a fine or other conveyance, the wife is privately examined, whether she acts freely; and without such an examination, the act is invalid. But a covenant to convey is made without any examination; and to hold the wife bound by it, would be contrary to first principles on this subject, for the wife is deemed incompetent to make a contract, unless it be in her character of trustee, and when she does not possess any beneficial interest in her own right.' The chancery jurisdiction is applied to the cases of property settled to the separate use of the wife by deed or will, with a power of appointment, and rendered subject to her disposition. *169 On the other hand, the husband has frequently been compelled, by decree, to fulfil his covenant, that his wife should levy a fine of her real estate, or else to suffer by imprisonment the penalty of his default. (b)

(a) Butler v. Buckingham, 5 Day's Rep. 492. See, also, Watrous v. Chalker, 7 Conn. Rep. 224, S. P. In Baker v. Child, 2 Vern. Rep. 61, it was stated, as by the court, that where a feme covert agreed with her husband to levy a fine, and he died before it was done, the court would compel the wife to perform the agreement. But this case was said, in Thayer v. Gould, 1 Atk. Rep. 617, to have been falsely reported, and that there was no such decree; and the master of the rolls, in Ambler, 498, spoke of it as a loose note. It is not law. Sed quæ. In the case of Stead v. Nelson, 2 Beavan, 245, a wife having an estate for life, for her separate use, in lands, with an absolute power over the reversion, joined her husband in an agreement to execute a mortgage, held that such agreement was binding on the wife's surviving.

(b) Griffin v. Tailor, Tothill, 106. Barrington v. Horn, 2 Eq. Cases Abr. 17, pl. 7. Sir Joseph Jekyll, in Hall v. Hardy, 3 P. Wms. 187. Withers v. Pinchard, cited in 7 Vesey, 475. Morris v. Stephenson, 7 Vesey, 474.

'If the husband joins in an executory contract, though the deed is to be given to the wife, and the payment to be made by her property, he may be compelled to a specific performance. Johnston v. Jones, 12 B. Monroe, 326.

As a general rule, the court will not compel the husband, who has agreed to sell lands, to procure his wife's execution of the deed. Hulmes v. Thorpe, 1 Halsted's Ch. (New Jersey) R. 415.

Where an ante-nuptial contract gave the wife power to dispose of her real estate, it was held that she could make a binding contract to convey. Van Allen v. Humphrey, 15

Barb. 555.

But Lord Cowper once refused to compel the husband to procure his wife to levy a fine, as being an unreasonable coercion, since it was not in the power of the husband duly to compel his wife to alien her estate. (a) In other and later cases, the courts have declined to act upon such a doctrine; (b) and Lord Ch. B. Gilbert questioned its soundness. (c) In Emery v. Wase, td) Lord Eldon observed, that if the question was perfectly res integra, he should hesitate long before he undertook to compel the husband, by decree, to procure his wife's conveyance; for the policy of the law was, that the wife was not to part with her property, unless by her own spontaneous will. Lastly, in Martin v. Mitchell, (e) where the husband and wife had entered into an agreement to sell her estate, the master of the rolls held, that the agreement was void as to the wife, for a married woman had no disposing power, and a court of equity could not give any relief against her on such a contract. She could not bind herself by contract, except in the execution of a power, and in the mode prescribed; nor would the court compel the husband to procure his wife to join in the conveyance.. Such, said the master of the rolls, is not now the law.

• 170

*The English courts of equity have, until recently, thrown a further and very important protection over the property settled on the wife on her marriage, for her separate use, with a clause against a power to sell or assign by anticipation. It was declared, in Ritchie v. Broadbent, (f) that a bill would not be sustained, to transfer to the husband property so settled in trust, even though the wife was a party to the bill, and ready to consent, on examination, to part with the funds. The opinion of the Lord Ch. Baron was grounded on the effect to be given to the clause against anticipation, and does not apply to ordinary cases, or affect the general power of the wife,

(a) Ortread v. Round, 4 Viner's Abr. 203, pl. 4. (b) Prec. in Ch. 76. Amb. Rep. 495.

(c) Gilbert's Lex Prætoria, 245.

(d) 8 Vesey, 505, 514.

(e) 2 Jac. & Walk. 413. Sir James Mansfield, in Davis v. Jones, 4 Bos. & Pull. (1 N. S.) 269. Brick v. Whelley, cited in Howel v. George, 1 Mad. Rep. 7, note, S. P.

(f) 2 Jac. & Walk. 456.

'Hulmes v. Thorpe, 1 Halsted's Ch. R. (New Jersey,) 415.

where no such check is inserted in the settlement.

A clause in

a gift or deed of settlement upon the wife, against anticipation, is held to be an obligatory and valid mode of preventing her from depriving herself, through marital or other influence, of the benefit of her property. But that restraint on anticipation ceases on the death of the husband, for the reason and expediency of the restraint have then also ceased. (a)

(a) Barton v. Briscoe, 1 Jacob's Rep. 603. The history of the fluctuations of the English chancery decisions on this subject is curious. Thus, the English rule formerly was, that in cases of property in trust for a married woman, to be paid into her own hands, upon her own receipts, the wife might still dispose of that interest, and her assignee would take it. Hulme v. Tenant, 1 Bro. Rep. 16. Pybus v. Smith, 3 Ibid. 340. 1 Vesey, jun. 189, S. C. But in Miss Watson's case, Lord Thurlow altered his opinion, and held that a proviso in a settlement that the wife should not dispose of her interest by any mode of anticipation, would restrain her; and Lord Alvanley, in Sockett v. Wray, 4 Bro. Rep. 483, held it to be a valid clause; and so it has been since considered. Lord Eldon, in Brandon v. Robinson, 18 Vesey, 434, and in Jackson v. Hobhouse, 2 Merivale's Rep. 487. Vice Ch. Shadwell said, that when he was in the habit of drawing conveyances, the proviso that he inserted against the power of anticipation was, that the receipts of the lady under her own hand, to be given from time to time for accruing rents or dividends, should be, and that no other receipt should be sufficient discharges to the trustees. Brown v. Bamford, 11 Sim. 127. This case was reversed on appeal by Lord Lyndhurst, on the ground that a general limitation in default of appointment did not enable the wife to anticipate, and it did not depend on the form of the receipt clause. Now, again, such a clause against anticipation, inserted in a will in favor of an unmarried female, and without any connection with coverture, is held to be not valid. See Woodmeston v. Walker, 2 Russ. & Mylne, 197. Jones v. Salter, Ibid. 208. Brown v. Pocock, Ibid. 210. Newton v. Reid, 4 Simons's Rep. 141; and see supra, p. 165, note a. The Supreme Court of North Carolina, sitting in equity, has followed the spirit of these latter decisions, and held that though real and personal property be conveyed in trust to apply the proceeds to A. for life, with a clause against a sale or anticipation, but without any disposition over in the case of such sale or anticipation, yet if the cestui que trust be a male or single, the restraint on his alienation or assignment was inoperative and void. Dick v. Pitchford, 1 Dev. & Battle, Eq. 480. The disposition over would seem to be material in the construction of the instrument. Lord Eldon, in Brandon v. Robinson, 18 Vesey, 429, observed, that property might be limited to a man until he became a bankrupt, and then over. But that if property be given to a man for life, the donor cannot take away the incidents to a life estate, or add a valid clause that he should not alien it. It cannot be preserved from creditors, unless given to some one else in trust. But we have again, in the English courts of equity, a recurrence to the old and juster doctrine; for it was held in Tullett v. Armstrong, 1 Beavan, 1, 21, that a devise and bequest in trust for an unmarried woman, to her separate use, and with an inability to alien, was effectual on any subsequent marriage, both as to the separate use and the

1 See Ross's Trust, 2 E. L. & Eq. 148. Baker v. Bradley, 35 E. L. & Eq. 449.

(4.) Power to appoint by will.

A wife cannot devise her lands by will, for she is excepted out of the statute of wills; nor can she make a testament of chattels, except it be of those which she holds en autre droit, or which are settled on her as her separate property without the license of her husband. He may covenant to that effect, before or after marriage, and the court of chancery will enforce the performance of that covenant. It is not strictly a will, but in the nature of an appointment, which the husband is bound by his covenant to allow. (a)2 The wife may dispose by will, or by act in her lifetime, of her separate personal estate, settled upon her, or held in trust for her, or the savings of her real es

tate given to her separate use; and this she may do * 171 without the intervention of trustees, for the * power is incident to such an ownership. (b) It has been held, even at law, in this country, (c) that the wife may, by the per

restraint upon anticipation, though if unaccompanied by any restraint, it was subject to her power of alienation. And afterwards, in Dixon v. Dixon, 1 Beavan, 40, it was held, that a settlement on the first marriage of a woman, in trust for her separate use, exclusive of any husband, the trust to her separate use attached upon a remarriage.

The New York Revised Statutes, vol. i. p. 728, sec. 55, (as amended in 1830,) and 730, sec. 63 and 65, have thrown an effectual protection over the interests of persons not well able to protect themselves, by declaring, (1.) that an express trust may be created to receive the rents and profits of land, and apply them to the use of any person, during the life of such person, or for any shorter term; (2.) by declaring, that no person beneficially interested in a trust for the receipt and profits of lands, can assign, or in any manner dispose of such interest; and, (3.) that where the trust shall be expressed in the instrument creating the estate, every sale, conveyance, or other act of the trustees, in contravention of the trust, shall be absolutely void. Under these provisions, a father may create a trust in favor of a daughter, and the interest would be unalienable even with the consent of the husband. Nothing can impair such a trust during the life of the cestui que trust; and the recent English decisions on this subject are wholly inapplicable, and not law in New York.1

(a) Pridgeon v. Pridgeon, 1 Ch. Cas. 117. Rex v. Bettesworth, Str. Rep. 891. Newlin v. Freeman, 1 Iredell, N. C. Rep. 514.

(b) Peacock v. Monk, 2 Vesey, 190. Rich v. Cockell, 6 Vesey, 369. West, 3 Randolph's Rep. 373. Holman v. Perry, 4 Metcalf's Rep. 492. (c) Emery v. Neighbour, 2 Halsted's Rep. 142.

West v.

1 See Leggett v. Leggett, 2 Comst. 297. L'Amoreux v. Van Rensselaer, 1 Barb. Ch. 34. Rogers v. Ludlow, 3 Sandf. Ch. 104. Noyes v. Blakeman, 3 Sandf. 531. S. C. 2 Seld. 567. Cruger v. Jones, 18 Barb. 467,

2 It has been held in New York that statute provisions fixing the age requisite to give validity to a will, do not affect the right of a feme covert to execute a power of appointment. Strong v. Wilkin, 1 Barb. Ch. R. 9.