# Radford v. Carwile

> West Virginia Supreme Court · April 19, 1879 · 13 W. Va. 572

URL: https://www.frixlaw.com/law-library/cases/6591979

## Case

- **Full name:** Radford v. Carwile
- **Court:** West Virginia Supreme Court
- **Decided:** April 19, 1879
- **Citations:** 13 W. Va. 572
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Gkeen
- **Judges:** Gkeen, Haymond, Johuson, Moore
- **Cited by:** 35 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

GkeeN, PRESIDENT,
delivered the opinion of the court:
The questions presented by the record in this case are: Whether the separate estate of a married woman is liable for her debts? and if so, what is the extent of its liability and its mode of enforcement ?
The decision of these questions depends, as we shall find, on what was the law prior to the passage of ch. 66 of our Code relating to the separate property and rights of married women. See Code of W. Ya. ch. 66 p. 447. We will therefore consider first what was .the law on those points prior to the passage of our Code.
The authorities very generally agree, that the charac *577 ter of the separate estate of a married woman might be molded .by the instrument, by which it was created. That instrument might lawfully give to her during her coverture the unlimited right oí alienation of her separate estate, or render it liable to the payment of all her debts, or it might during her coverture limit her power of alienation, or preclude it altogether and declare it not liable to the payment of any of her debts. See Pybus v. Smith, 3 Bro. C. C. 347; Parkes v. White, 11 Ves. 24; Baggett v. Meux, 1 Coll. 133; 1 Ph. 627; Tullet v. Armstrong, 1 Beav. 1 Robinson v. Wheelright, 27 Beav. 214; 6 De G. M. & G. 535; Peillon v. Brooking, 25 Beav. 214; Weeks v. Sego 9 Ga. 201; Nixon v. Rose, 12 Gratt. 428 ; Perkins v. Hays 3 Gray 408 ; Clarke v. Makenna, Ch. Eq. (S. C.) 163. This therefore we may regard as the settled and acknowledged law'.
The questions of controversy have been: whether, when the instrument creating her separate estate simply created this estate, or specified one mode of disposition, which she could make of it, this gave her an unlimited right to dispose of it at her pleasure, and rendered it liable to all her debts, or any of her debts; or whether in the first case the estate was unalienable during cover-ture, and not liable to any of her debts.
Three widely different views have been taken of the law on this subject.
The first of these views is held by the English courts; and their view has been followed by the courts of a number of the States of this Union. As there has been considerable conflict among the English authorities, and no small controversy in this country as to what have been the results, which they have reached, I propose to examine the English authorities at some length. They form generally the basis of the American decisions,* and it is therefore important, that we should have a clear conception of the law, as held by them.
An examination of the old English authorities must, I think, lead any one to the conclusion, that they held, *578 when not restricted in her power of disposition, feme covert had the right to dispose of her separate estate in any manner, that she pleased, this right being regarded as an incident to her ownership in equity of the property; and that her separate estate was for a like reason liable to the payment of all her debts. The old English cases, which sustain these positions, are numerous; nor is there any conflict among them. I would especially refer to the following old English cases, as sustaining the unlimited power in such case of a married woman to alienate her separate property at her pleasure : Parteriche v. Powlet, 2 Atk. 383; Allen v. Papworth, 1 Ves. Sr. 163; Hearle v Greenbank, 1 Ves. Sr. 298; Grigby v. Cox, 1 Ves. Sr. 517; Peacock v. Monk, 2 Ves. Sr. 190; Pawlet v. Deleval, 2 Ves. Sr. 663; Neiman v. Cartony, cited in note in 3 Bro. C. C. 346; Clarke v. Pistor, 3 Bro. C. C. 346; Hulme v. Tenant, 1 Bro. C: C. 16; Fettiplace v. Gorges, 3 Bro. C. C. 8; Pybus v. Smith, 3 Bro. C. C. 340; Ellis v. Atkinson, 3 Bro. C. C. 565.
All these cases were decided prior to the year 1792; and it does seem to me, that they ought to have been regarded as settling beyond further controversy this question. In many of them this power of disposing of her separate estate is assumed, and no reason given therefor; in some’of them however the reason is given, or intimated ; and they all ■ no doubt proceeded on the same reason.
Perhaps the basis of these decisions is as well stated in Grigby v. Cox, 1 Ves.'Sr. 517, as anywhere else. Lord Hardwick there says : “For the rule of this court is, where anything is settled to the wife’s separate use, she is considered as a feme sole; may appoint in what manner she pleases, a,nd unless the joining of her trustees is made necessary, there is no occasion for that.” Lord Thurlow in Plulmev. Tenant, 1 Bro. C. C. 16, says: “The rule laid down in Peacock v. Monk, 2 Ves. Sr. 190, that a feme covert acting with respect to her separate property is competent to act in all respectólas a feme sole, is the proper rule, and neces *579 sary to Support the decisions on this -subject.” And again he says, after examining the authorities: “I take it therefore, it is impossible to say, but that a feme covert is competent to act as a feme sole, with respect to her separate property, when settled to her separate use.” But this language, though very broad, ought to be construed as intended probably by the judges, who used it, as applicable only to a disposition of personal property, or rents and profits of lands by deed or will.
The old as well as modern English eases fully recognize the right of a married woman to dispose of her separate personal estate by will, as well as by deed or act inter vivos, when not prohibited from so doing by the instrument creating the estate. See Fettiplace v. Gorges, 3 Bro. C. C. 8; Hearle v. Greenbank, 1 Ves. 301; Rich v. Cockell; 9 Ves. 369; Gore v. Knight, 2 Vern. 535; Herbert v. Herbert, Pr. Ch. 44; Wagstaff v. Smith, 9 Ves. 520; Thockwell v. Gardiner, 5 De G. & Sm. 58; Hodgson v. Hodgson, 2 Kee. 704; Humphreys v. Richards, 2 Jur. N. S. 432. But the weight of the old English authorities was against the right of a married woman, where not expressly, authorized so to do, to dispose of her separate real estate by will, or by her sole deed; though the modern English authorities hold that she may, if not prohibited. See Anon, cited Peacock v. Monk, 2 Ves. Sr. 190; Churchhill v. Dibben, 2 Keny. Pt. II. 98; Harris v. Mott, 2 Bea. 169; Lechemere v. Brotheridge, 32 Beav. 353; Hodsden v. Lloyd, 2 Bro. C. C. 534; George v. Jew, Amb. 627; sed vide Wright v. Englefield, Amb. 468; or Wright v. Cadogan, 6 Bro. P. C. 156; Rippon v. Dawding, Amb. 565; and the modern English cases: Taylor v. Meade, 34 L. J. (N. S.) Ch. 203; Hall v. Waterhouse, 5 Gif. 64; 13 W. B. (V. C. S.) 66; 11 Jur. (N. S.) 361; and Pride v. Bubb, 7 L. 11 . ch. App. 64, cited in White & Tudor’s Leading Cases in Equity, 4th American from 4th English edition top pages 656, 658, and side pages 490, 491, 492; in which it is held, that when unrestrained, she may dispose of her real estate by will.
*580 One °f the reasons for distinguishing between her right to dispose of her separate property by deed and will probably was, that it was not considered essential to her full and perfect enjoyment of her separate property, that she should be allowed to dispose of it by will; though it was essential, that she should be permitted to dispose of it by deed, or act inter vivos, in order to give her the full enjoyment of it as property. But this could not have been the only reason, as she was permitted always to dispose of her separate personal property by will. The old English cases were, I think, equally explicit in holding, that where it was not otherwise provided in the instrument creating- the estate, her separate estate, real and personal, was liable to the payment of her debts. They held it was liable to the payment of her bond. In Lillia v. Airey, 1 Ves. Jr. 277; Norton v. Turville, 2 P. Wms. 144; Peacock v. Monk, 2 Ves. Sr. 193, though it was given to her husband, or though she had joined in it with him as his surety, as in Hulme v. Tenant, 1 Bro. C. C. 16, or with a stranger as in Heatley v. Thomas, 15 Ves. 596; Stanford v. Marshall, 2 Atk. 68; and it was equally held bound for her bill of exchange, promissory note or agreement in writing of any character. See Stuart v. Kirkwall, 3 Madd. 387; Owen v. Homan, 4 H. L. Rep. Cas. 998; Bullpin v. Clarke, 17 Ves. 365; Field v. Lowle, 4 Russ. 112; Master v. Fuller, 4 Bro. C. C. 19; 1 Ves. Jr. 513.
It is true, these were cases, in which the debt was acknowledged in writing; but the separate estate was held liable to her debts and engagements evidently from the old English cases, not because they were evidenced by writing, but simply because they were her debts and engagements, her separate property being held liable for her debts, because its liability to the payment of debts was incident to her ownership of the property. It is true, in most of the cases no allusion is made to the grounds, on which it was held liable ; but as there was nothing in the settlement specially making it liable, the courts assumed and hold it liable as a matter of course, *581 because it was her separate property. That they did not so hold under the idea, that in executing the bond or other writing she had executed a power to dispose of her property, is obvious from no allusion being made to such an idea. This idea is obviously of modern origin. The court in the old cases had no conception thereof, and make no allusion to such power as the origin, on ivhieh her separate estate was held liable for her debts. No one can read these old cases, and come to any other conclusion, than that the courts, had they been called upon, would have held her separate estate liable to all her debts and engagements, though they were merely verbal, or were simply implied obligations.
in a few of these old cases there is an allusion to the grounds, on which the separate estate of a married woman is held liable for the payment of her debts in a court of eejuity; and they show, that it was based on the broad and intelligible ground, I have mentioned : that it was an incident to the ownership by her of the property, just as her right to dispose of it was an incident to such ownership.
Thus in Norton v. Turville, 1 P. Wins. 144; the Master of the Bolls says: “The bond given by the feme covert is merely void; and in that respect differs from a bond given by an infant, which is only voidable/ &c. “But in this case all the separate estate of the Jeme covert was a trust estate for the payment of debts. And it was accordingly held liable for the payment of her bond. The trust did not say anything about the estate being held for the payment of her debts. This was an inference drawn simply from the creating the separate estate. It was obviously regarded as an incident to the ownership of the property by her; and the inference would apply as well to a debt not evidenced by writing, as to her bond. The inference drawn by the Master of the Bolls is, that her separate estate was liable for all her debts.
*582 Lord Thurlow is very explicit in declaring tbe grounds, on which the separate estate was held liable to the payment of her debts. In Hulme v. Tenant, 1 Bro. C. C. 16, he says: “But in respect to a feme covert determined cases seem to go thus far, that the general engagement of the wife shall operate on her personal property, shall apply to the rents and profits of her real estate, and that her trustees shall be obliged to apply personal estates and rents and profits, when they arise, to the satisfaction of such general engagements.” And again: “If a court of equity says a feme covert may have a separate, estate, the court will bind her to the whole extent as to making that estate liable to her own engagements, as for instance for payment of debts, &c.”
After this long train of decisions I can but think, that the law in England ought to have been regarded as firmly settled. Those decisions were based on the clear and distinct principle, that unless the instrument creating the separate estate otherwise provided; a court of equity would regard, that as an incident to her ownership of a separate property, she had a general right to dispose of the same, and for precisely the same reason, as an incident to such ownership, her separate estate was bound for all her debts and personal engagements. That this was the basis of these decisions cannot be reasonably questioned.
Judge Story in his Commentaries on Equity, vol. 2 p. 629, §1401, says, speaking of this. subject: “In the earlier cases indeed, the doctrine was put upon the intelligible ground, that a married woman, as to her separate property, is to be deemed a feme sole; and that therefore her general engagements, though they would not bind her person, should bind her separate property.”
Unbounded mischief and confusion has arisen from an abandonment by some of the English judges of this intelligible ground, and the invention of fancies as the basis, on which a married woman’s debts could be charged by a court of equity on her separate estate. It *583 is true, the English courts have in modern times repudiated all these fancies practically, and have substantially to the plain and intelligible ground, on which the old English eases were based. But unfortunately some of the courts in the United State have in the meantime seized on these fancies and spun them out, till in those States, whose courts have indulged in these fancies, the grounds, on which any debt can be charged on a married woman’s estate, are utterly unintelligible ; and as a result no two courts, who have indulged in these fancies, can agree ; and not only is the law different in all these States, that have attempted to follow these fancies, but in the same State these decisions vary constantly, as the judges or the court is changed. I cannot but deprecate the departure of some of the English judges from the intelligible law, which had been laid down in a long train of decisions.
We will now consider those English cases, which for a time unsettled the law in England. The principles laid down in these cases are, that a married woman’s separate estate is not liable to the payment of her debts, because liability to the payment of debts is an incident to her ownership of property; but her separate estate can be disposed of by her as she pleases, such power of disposition being an incident to her ownership of property; and having the power to dispose of it as she pleases, she must have the implied power to charge it with the payment of debts; and if she exercises this power, then a court of equity will enforce the payment- of a debt, so charged, out of her separate estate.
Having reached this conclusion, they proceed further and hold, that if she has executed a bond, or other instrument in writing, promising to pay a particular debt, though she does not thereby charge her separate estate with its payment, nor allude to it in any manner, it will nevertheless be held to bo a charge on her separate estate, because the security must be supposed to have been executed with the intention, that it should operate in *584 some Way, an^ as ^ ÍS VOÍd laW, & oan have 110 OpC-ration except as against lier separate estate; and there-f°re the courts will infer, that this was her purpose in executing such writing, and will enforce it, as though she had made the charge; but such intention will not be inferred from her contracting a debt verbally. I cannot comprehend, how this inference is drawn, when she contracts a debt in writing, but is refused to be drawn, when she contracts it verbally. The writing making no mention of her separate estate like any other bond or writing is obviously given merely as evidence of the contract creating the debt; and the inference, that she intended to charge her separate estate, is obviously drawn not from the writing, but from the contract, which was evidenced by the writing; and in reason precisely,5]the same inference must be drawn from her contract creating a debt, though this contract be verbal. The written contract is as void at law as her verbal contract; and the verbal must just as reasonably be supposed to have been entered into with the intention, it should operate in some way ; and it too can as much as the written contract have no operation except as against her separate estate. If in the one cáse the inference is drawn that she so intended, it seems to be an inevitable conclusion, that she equally intended it in the other. And if this intention in the one case is to be hold as the equivalent of a direct charge, I cannot see, why it should not be in the other; yet there are a number of English cases, whore this distinction between debts evidenced by writing, and those based on verbal contracts, has been taken. These positions are sustained or countenanced by these cases. See Belton v. Williams, 2 Ves. Jr. 150; Clerk v. Miller, 2 Atk. 379; Greatly v. Noble, 3 Madd. 49; Stuart v. Kirkwall, 3 Madd. 389; Aguilar v. Aguilar, 5 Madd. 418; Chester v. Platt, 1 V. & B. 334; Francis v. Wigzell, 1 Madd. 145.
But these cases seem inconsistent, not only with the numerous authorities before cited, but also with ] Anon. *585 18 Ves. 258, and Gregory v. Lockyer, 6 Madd. 80, wherej decrees were made for the payment of debts generally o married women out of their estates after their death, Their estates could not in principle be held liable for their general debts, after their death, if they Avere not so liable in the lifetime of the married Avomen. In the casein 18 Ves. 258 it Avas held, that all the debts of the married woman should be paid ratably; which would be clearly right, if her separate estate is liable for all her debts, as though she Avere a feme sole, but clearly Avrong, if her separate estate was only liable for a debt by reason of an express or implied charge on her part, for then they could only be paid according to the respective priorities of the charges made in their faAmr severally. But I have nevertheless never seen it suggested, that in administering a married Avoman’s estate a court of equity should do otherwise than pay all debts, that are charges on it, equally.
The recent English cases hoAvever repudiate substantially, I think, the doctrine, Avhich these authorities introduced: that a debt could be charged on a married woman’s estate, only Avhen she had expressly so charged it, or by having executed her bond or other Avriting for the payment of the debt, Avhen it Avould bo therefrom implied, she had intended to charge the debt on her separate estate; and they uphold the old English cases in their view, that the separate estate oí a married woman is liable to all her debts, Avhether they are Avritten or merely verbal. Though not so stated, these cases can be sustained in reason, only on the ground that this liability does not depend on her having either made them charges; or intended to make them charges, but only on the broad ground, that it is incident to her OAvnership of the estate.
According to the vieAVS of both these ancient and modern authorities, Avhen based on their true ground, it is not only unnecessary, but it is incorrect in principle, to speak of a married Avoman’s written engagements as operating merely as appointments. In Murray v. Barlee, *586 4 Sim. 82, Lord Brougham repudiates such dis-aTtinctions. He says : “If in respect to a wife’s separate estate she is in equity taken as a fame sole, and can charge it by instruments absolutely void at law, can there be "any reason for holding, that her liability, or more properly her power, of affecting her separate estate should only be exercised by a written instrument? Are we entitled to invent a rule, to add a new chapter to the statute of frauds, and to require writing, when that act requires none ? Is there any equity reaching written dealings with the property, which extends not also to dealing in other ways, as by sale and delivery of goods ? Shall necessary supplies for maintenance not touch the estate; and yet money furnished to squander away at play be a charge on it, if fortified by a scrap of writing ? No such distinction can be taken on any conceivable principle.”
In Owens v. Dickenson, Cr. and Ph. 48, Lord Cottenham speaking of a written agreement says : “that within the authority of the cases, which have been decided, it would have been operative upon the feme covert’s separate estate, but not by way of the execution of a power, though that has been an expression sometimes used, and, as I apprehend, very inaccurately used, in cases where the court has enforced the contracts of married women against their separate estate. It cannot be an execution of a power, because it neither refers to the power nor to the subject matter of the power, nor indeed in many cases has there been any power existing at all. Besides, as it was argued in Murray v. Barlee, if a married woman enters into several engagements of this sort, and all the parties come to have satisfaction out of her separate estate, they are paid pari passu; whereas if the instruments took effect as appointments under a power, they would rank according to the priorities of their dates. It is quite clear therefore, that there is nothing in such a transaction, which has any resemblance to the execution of a power; what it is, it is not easy to define.
“It has sometimes been treated as disposing of the par *587 ticular estate; but tbe contract is silent as to the separate estate, for a promissory note is merely a contract to ' pay, not saying out of what it is to be paid, or by what means it is to be paid; and it is not correct according to legal principles, that a contract to pay is to be construed into a contract to pay out of a particular property, so as to constitute a lien on that property. Equity lays hold of the separate property, but not by virtue of anything expressed in the contract; and it is not very consistent with correct principles, to add to the contract that, which the party has not thought fit to introduce into it.
“The view taken of the matter by Lord Thurlow in Hulme v. Tenant is more correct. According to that view, the separate property of a married woman being a creature of equity, it follows, that if she has a power to deal with it, she has the other power incident to property in general, namely: the power of contracting debts to be paid out of it; and inasmuch as her creditors have not the means at law of compelling payment of those debts, a court of equity takes upon itself, to give effect to them, not as personal liabilities, but«by laying hold of' the separate property as the only means, by which they can be satisfied.
“I observe, that in Clinton v. Wills, (1 Sugd. Powers 208 n.) Sir Thomas Plumer suggested a doubt, whether it was necessary, they should be secured by writing; and it certainly seems strange, that there should be any difference between a contract in writing, when no statute requires it to be in writing, and a verbal promise to pay. It is an artificial distinction, not recognized in any other case.”
In the case of Vaughan v. Vanderstegen, 2 Drew. 183, cited in White & Tudor’s Leading Cases in Equity, 4th American from 4th London edition, top page 696, side page 501, Sir R. T. Kindersley V. C. says: “It has not yet indeed been made the subject of positive' decision, that the principles of courts of equity, by which a married woman is constituted a feme sole as to her separate prop *588 erty, embrace her verbal engagements or eases of common assumpsit; and in the 7th edition of Lord St-. Leonard’s work on Powers, published in 1845 (1 Sugd. Pow. 206), his lordship observes (though without reference to Murray v. Barlee, or Owens v. Dickenson) that the prevailing opinion then was, that her separate estate was not liable to general demands upon her. Considering however the opinions I have referred to, and the reason of the thing, I think it very probable, that when that question arises for decision, it will be decided in the affirmative.”
Subsequently this very subject was fully discussed in the important cases of Johnson v. Gallaher, 3 De G. F. & J. 494; 30 L. J. (N. S.) Ch. 298; 7 Jur. (N. S.) 273; 9 W. E. (L. J.); and the judgment of Lord Justice Turner may be considered as the most accurate exposition of the law thereon. It is thus summed up and adopted by Sir E. T. Kindersley V. C., (See White & Tudor’s Leading Cases in Equity, vol. 2, top page 697, side page 501.) : “I think the principle laid down by Lord Justice Turner, in Johnson v. Gallaher, is a sound one; and it is the principle which this court ought to adopt. As I understand that principle it is this: — If a married woman having separate property enters into a pecuniary engagement, whether by ordering goods, or otherwise, which, if she were a feme sole, would constitute her a debtor, and in entering into such engagemexrt, she purports to contract, not for her husband, but for herself, and on the credit of her separate estate, and it was so intended by her, and was so understood by the person with whom she was contracting, that constitutes an obligation, for which the person, with whom she contracts, has the right to make her separate estate liable; and the question, whether the obligation was contracted in the manner I have mentioned, must depend upon the facts and circumstances- of each particular case.
“It is clearly not necessary, that the contract should be in writing,^because it is now admitted, if a married woman *589 enters into a verbal contract, expressly making her separate estate liable, such contract would bind it; nor is it' necessary, there should beany express reference made to the fact of there being such separate estate; for a bond or promissory note given by a married woman, without any mention of her separate estate, has long been held sufficient to make her separate estate liable. If the circumstances are such as to lead to the conclusion, that she was contracting not for her husband but for herself, in respect to her separate estate, that separate estate will be liable to satisfy the obligation.” Mrs. Mathewman’s case, 3 Law Rev. Eq. 187; and see also Hartford v. Power, 3 W. R. Eq. 602; Picord v. Hine 5 L. R. ch. App. 274, referred to in White & Tudor’s Leading Cases in Equity, volume 2, side page 502, top page 697.
It would seem therefore to be the settled law of England, that a married woman’s separate estate, when not otherwise provided in the deed of settlement, is liable to all her debts, whether in writing or not; and that if not restrained, she has the unlimited power to dispose of her separate property both real and personal, as she pleases. In addition to the authorities, I have already referred to as sustaining this last position, I would refer to Powell v. Hankey, 2 P. Wms. 82; Squire v. Dean, 4 Bro. C. C. 326; Smith v. Camelford, 2 Ves. Jr. 698; Dalbiach v. Dalbiach, 16 Ves. 126; Ridout v. Lewis, 1 Atk. 269; Ellis v. Atkinson, 3 Bro. C. C. 566 ; Clarice v. Pistor, 3 Bro. C. C. 347 note; Chesslyn v. Smith, 8 Ves. 185; Caverly v. Dudley & Bisco, 3 Atk. 541; Sturgis v. Corp, 13 Ves. 190; Heatley v. Thomas, 15 Ves. 596; Sperling v. Rochefort, 8 Ves. 164; Wagstaff v. Smith, 9 Ves. 520; Parkes v. White, 11 Ves. 209; Hovey v. Blakeman, cited in Wagstaff v. Smith, 9 Ves. 524; Brown v. Like, 14 Ves. 302; Bullpin v. Clarke 17 Ves. 365.
The cases very generally go further than laying down the proposition, that a married woman is considered in equity with respect to her separate property as a feme sole, and as such has an absolute dominion or power of *590 disposition over it, unless her pOAver of disposition be restrained by the deed, or will, under which she became entitled to it. And they sustain the position, that though a particular mode of disposition, or enjoyment, of the property be specified in the instrument creating the separate estate, yet from this there cannot be implied the exclusion of the right to pursue any other mode of disposition or enjoyment. The maxim expressio unius ex-clusio alterius must yield according to these cases to the natural inference, that the gift of an unqualified right of ownership carries with it the equally unlimited power to dispose. And accordingly these cases hold substantially, that the granting of one mode of disposition is not to be construed, as in any manner limiting the general power of the wife to dispose of her separate estate in any manner she pleases. See Parkes v. White, 11 Ves. 222; Pybus v. Smith, 1 Ves. Jr. 189 ; Witts v. Dawking, 12 Ves. 501; Brown v. Like, 14 Ves. 302; Sturgis v. Corp, 13 Ves.190; Acton v. White, 1 Sim. & St. 429; Vallet v. Armstrong, 4 Beav. 319; Stanford v. Marshall, 2 Atk. 68; Grigby v. Cox, 1 Ves. Sr. 517; Cartony v. Nieman, 3 Bro. 346; Clarke v. Pistor, 3 Bro. 346; Lilis v. Atkinson, 3 Bro. C. C. 565; Sperling v. Bochfort, 8 Ves Jr. 164.
But this constructidn has been denied in some English cases; and the inference to be drawn from them is, that the granting expressly of power to dispose of her separate estate in one particular mode is an implied prohibition to dispose of it in any other mode. See Caverly v. Dudley & Bisco, 3 Atk. 541; Socket et ux. v. Wray, 4 Bro. 483; Hyde v. Price, 3 Ves. 437; Milne v. Bush, 3 Ves. Jr. 488; Whistler v. Newman, 4 Ves. 129; Mores v. Huish, 5 Ves. 692 (overruled in Essex v. Atkins, 14 Ves. 542); Hovey v. Blakeman cited 9 Ves. 524, but overruled in Sturgis v. Corp, 13 Ves. 190.
The decided weight of the English authorities is against these views; yet several of the English judges, while deciding that the English law was settled in opposition to *591 the views expressed in the cases last above cited, regretted that it was so settled. Lord Thurlow expressed such views in Ellis v. Atkinson, 3 Bro. C. C. 347, note; Pybus v. Smith, 3 Bro. C. C. 340, 1 Ves. Jr. $89; and Lord Eldon expressed such views in Sperling v. Rochfort, 8 Ves. 164; Jones v. Haines, 9 Ves. 497; Parkes v. White, 11 Ves. 188; and induced by these disapprovals of the full extent, to which the English courts have gone, the courts in some of our states have not only adopted the views of these judges, who disapproved of the current of the English decisions, but have gone further and held, that the jus disponencli could not be implied from the ownership by a married woman of a separate estate, even where no limitation was put on her power of disposition.
The second view of the law on the subject under consideration differs entirely from the view sustained by the English authorities. The first State,, which adopted this view, in opposition to the whole current of English decisions, was South Carolina. In 1811 Chancellor Desaus-sure, in the case of Ewing v. Smith, 3 Desau. (S. C.) 417, after a review of many of the old English decisions, decided the law to be substantially, as I have stated it to be held by the English authorities. He sums up the result of his examination thus : “The result then is, that a feme covert, entitled to a separate estate in possession, remainder or reversion, is held to be a feme sole to the extent of the separate property ; and the jus disponendi follows of course. She may give it to whom she pleases, or charge it with debts of her husband, where no undue control is used over her. And her disposition will be sanctioned,or enforced,by the court, even without the assent of the trustees, unless this assent be made specially necessary by the deed or will creating the separate estate. And this power- of disposing of the separate estate is not restricted by the deed, or will, pointing out a particular mode of disposing, or charging, the particular estate, unless the deed, or will, negatives any other mode expressly.”
I concur with the Chancellor in the opinion, that *592 “upon tile fullest and most attentive examination of the English cases, these positions are clearly made out and established. ”
This case was appealed from and decided by the Court of Appeals of South Carolina in 1813, and was reversed by a divided court, three being for its reversal and two for its affirmance. The majority expressly admit, that the views af Chancellor Desaussure are in strict conformity to the English decisions; but regarding the question as res integra in this country they declined to follow these decisions preferring to follow the views of Lord Tburlowand Lord Eldon, who while admitting the law to be settled expressed the opinion that if the question was res integra, they would decide it differently.
The conclusion reached by Judge Waties, who delivered the opinion of the majority of the court is thus expressed : “ I may therefore confidently say, that even if Lord Thur-low and Lord Eldon Avere noAV sitting on this bench, and called on to settle the law for this community, they would settle it on these principles. Instead therefore of opposing this high authority, I feel expressly authorized by them in declaring the opinion, that a married woman, who has a separate estate, cannot part with it, or charge it in any way, Avithout an examination; that as by marriage she loses all the poAver of a feme sole,- a separate estate does not confer all those poAA'ers on her; and therefore the power of appointing such estate must be expressly given, and the mode prescribed be strictly pursued. As the bond given by Mrs. Smith, had not these sanctions, I am of opinion, that it ought not to be enforced.”
These vieAvs Avere confessedly and obviously directly opposed to the current of English authorities both ancient and modern. The judge in delivering his opinion says: “ But neither • before the re\olution, no more than since, was this court' eAmr bound to servile adherence to precedents of the English court. This court ought to be independent of CAory other in the exercise *593 of its judgment.” And again : “ It is indeed true as a general rule, that an absolute right of property gives an absolute right of disposition; but this rule is applicable only to persons of full legal capacity ; and it is strange, that any English judge should have ever lost sight of the common laAV so far as to apply it to married women.”
This new doctrine, thus boldly laid down as such, has since been followed in South Carolina. See Magwood & Patterson v. Johnston et al., 1 Hill (S. C.) Ch. 228; Robinson v. Ex’rs of Dart, Dudley, (S. C.) Ch. 128; Reid v. Lamar, 1 Strobh. (S. C.) Eq. 27; Rochell v. Tompkins, 1 Strobh. (S. C.) Eq. 114. But in South Carolina the English rule, which has been everywhere adopted to this extent, is followed: that if the instrument creating the separate estate expressly authorizes the feme covert to alienate it, or expressly makes it liable to the payment of her debts, the court will hold, that it is subject to her alienation or debts. See Clark v. Makenna, 1 Cheves (S. C.) Ch. 163. And it is further held, that a trust estate is liable for debts incurred for its use and on its account; and that on this principle a married worn ants separate estate may be charged with a debt incurred, when the money has been expended for the benefit of the separate estate, or has defrayed charges, for which it was bound. See Cater v. Eveleigh, 4 Desau. 19; James v. Magrant, Id. 591, Montgomery v. Eveleigh et al., 1 McCord (S. C.) Ch. 267 Adams v. Mackey, 6 Rich. (S. C.) Eq. 75.
The law of South Carolina is entirely settled, as appears from the case Reid v. Lamar, 1 Strobh. (S. C.) Ch. 27. It was there decided, that an estate settled to the separate use of a feme covert, to be at her full and free disposal^ was yet not chargeable upon a note given by her and her husband. Harper, Chancellor, in delivering the opinion states clearly the law of that State. He says: “If anything can be considered as settled, it is the settled law of this State, that where property is given, or settled, for the separate use of a married woman, she has no power to charge, encumber or dispose of it, unless in so far as *594 power to do so has been conferred on her by the instru" ' ment creating the estate, which power must be strictly pursued, in contradiction to many English cases. With respect to the decision in Ewing v. Smith, even those, who dissented from it on the score of authority, acknowledged the wholesomeness of its operation and its tendency to promote the objects, which courts of equity had in view in recognizing a separate property in femes covert, and protecting them against the influences or practices of their husbands, which might be exercised without the possibility of detection ; and also to guard against their own generous or devoted impulses * * * * Though it has been sometimes said in relation to our doctrine, that a married woman is only a feme sole sub modo, or to the extent that the settlement makes her so; yet these expressions are inaccurate ; she can in no manner of respect be considered a feme sole. A feme sole disposes of, or charges, her property by her own act, and according to her own will, by her inherent power as owner; a feme covert exercises a delegated authority, and can not exceed it; she is enabled to' execute a power, as in some instances, any third person — feme covert or other — even those having no interest in the property, might be enabled to execute it, and bind her by their act.-”
We need not dwell on this South Carolina doctrine further. It has at least the merit of being clear, precise and easy of application. It was confessedly a novelty; and it has not been followed either in Virginia or West Virginia. It has however been followed in Pennsylvania, Rhode Island, Tennessee and Mississippi. See Lancaster v. 1 Dolan, Rawle (Pa.) 231; Lyne’s ex'r v. Crouse et al., 1 Barr (Pa.) 111; Rogers v. Smith, 4 Barr 93; Wright v. Brown, 8 Wright 224 ; Wells v. McCall, 14 P. F. Smith 207; Thomas v. Folwell, 2 Whart. 11 ; Wallace v. Costen, 9 Watts 137 ; Metcalf v. Cook, 2 R. I. 355; Ware v. Short, 1 Swann 489; Morgan v. Elam, 4 Yerg. (Tenn.) 375; Marshall v. Stephens et al., 8 Humph. (Tenn.) 159; Litton v. Baldwin *595 el al., 8 Humph. (Term.) 209; Kirby v. Miller, 4 Caldw. (Tenn.)4; Armstrong v. Stoval, 26 Miss. 275 ; Dotey et. al. v. Mitchell, 9 Smed. & M. (Miss.) 435; Montgomery et al. v. The Agricultural Bank, 10 Smed. and M. 567.
Of course when these doctrines prevail, the separate estate of a married woman cannot be charged with her debts of any sort, even by her, unless she be authorized to make such charge expressly; and her debts, whether evidenced by writing or not, cannot be made out of such separate estate. See Dominee v.Scott, 3 Wharton 309 ; Lancaster v. Dolan, 1 Rawle 231 . These cases need not be examined by us in detail; they are all based on the principles followed out in South Carolina, principles not recognized by our courts, or most of the courts in this country or in England.
A third view of the law on the subject under discussion has been taken by the courts of New York and some other States. In 1817, in the case of The Methodist Episcopal Church v. Jaques, 3 Johns. Ch 77; Chancellor Kent reviewed very thoroughly nearly all the English decisions, which had then been rendered on the subject.
He says on page 89: “The English cases are certainly in favor of the position, that a married woman is considered in equity with respect to her separate property, as a feme sole, and is held to have an absolute dominion, or power of disposition over it, unless her power of disposition be restrained by the deed or will, under which she became entitled to it.” This position it will be observed is diametrically opposed to the views taken by the South Carolina Court of Appeals in Ewing v. Smith, decided a few years previous, but not referred to by Chancellor Kent.
On the question, whether the express authorizing of her by such deed, or will, to dispose of, or charge, her separate property is to be construed, as an implied prohibition of her right to dispose of her separate estate, or charge it, in any other mode, he admits that the weight of English authorities is opposed to such implied prohibition, but *596 require an express prohibition to prevent her from exer- ' oising her general power of disposition, as she pleases, as an incident to her ownership of the property. Bat he shows, there are some English decisions the other way; and Lords Thurlow and Eldon, while they followed the current of English decisions, regretted that the decided cases compelled them to this course. He regards therefore the English decisions on this subject as so unsatisfactory as to leave him at liberty to disregard the current of English decisions, and to adopt what he deemed the true principle.
His conclusions are thus expressed, (see p. 113) : “I apprehend we may conclude, (though I do it with unfeigned diffidence, considering- how great talents and learning, by a succession of distinguished men, have been exhausted on the subject) that the English decisions are so floating and contradictory, as to leave us the liberty of adopting the true principle of these settlements. Instead of holding that the wife is a feme sole, to all intents and purposes, as to her separate property, she ought only to be deemed a feme sole sub modo, or to the extent of the power clearly given her by the settlement. Instead of maintaining that she has an absolute power of disposition, unless specially restrained by the instrument, the converse of the proposition would be more correct, that she has no power, but what is specially given, and to be exercised only in the way prescribed, if any such there be. Her incapacity is general; and the exception to be taken strictly, and to be shown in every case, because it,is against the general policy and immemorial doctrine of the law. These very settle, ments are intended to protect her weakness against her husbands power, and her maintenance against his dissipation. It is a protection, which the court allows her to assume, or her friends to give; and it ought not to be rendered illusory. The doctrine runs through all the the cases, that the intention of the settlement is to govern, and that it must be collected from the terms of the in *597 strument. When it says she may appoint by will, it does not mean she may likewise appoint by deed ; when it permits her to appoint by deed, it cannot mean, that giving a bond or note, or a parol promise without reference to the property, or making a parol gift, is such an appointment. So when it says, she is to receive from her trustees the income of her property, as it from time to time may grow due, it does not mean, that she may, by anticipation, dispose of all that income. Such a latitude of construction is not only unauthorized by the terms, but it defeats the policy of the settlement, by withdrawing from the wife the protection intended for her. Perhaps we may say, that if the instmment be silent as to the mode of exercising the power of appointment or disposition, it intended to leave it at large to the discretion and necessities of the vñfe; and this is the most that can be inferred.”
It will be observed, that ivhile the views entertained by Chancellor Kent were similar to those taken by the Court of Appeals of South Carolina in Puiing v. Smith, he was unwilling to take the extreme position taken by it, and to disregard entirely the current of English authority.
An appeal was taken from the decision of Chancellor Kent in this case, and decided in the Appellate Court in 1820. See Johnson’s Reports, vol. 17, p. 548. The ease was ably and elaborately argued by counsel; and I will state their respective views as ably presenting the strongest grounds, on which the opposite views of the law is based. I do not pretend to give anything more than the principles, insisted on by them, and the reasons, which they respectively gave for their adoption.
For the appellants it was insisted, that the English Chancery Court adopted much of its principles and practice from the civil law; that the equity doctrine of a separate estate of a married woman was taken from the civil law in reference to a married woman’s paraphernal property; and by that law she could at her pleasure dispose of such property, or its revenues without the *598 authority of her husband. Having taken the notion of " a separate estate of a wife from the civil law, it was natural for the English Chancery Court to adopt the whole of this law, as it stood in the Codes of every State in Europe, that adopted this civil law. They did not intend, when they restricted the husband from his right, also to restrain the wife, and put her under disabilities not flowing from the Roman law. But to bind the courts of common law, they had to resort to the well .known agents of a court of chancery, trustees, as mere instruments of conveyance, like trustees to preserve contingent remainders, &c. In late years some Chancellors fell into the error, that trustees were created for the protection of the. wife, “to constitute perhaps the only efficient shield against the undue, secret, and powerful influence of the husband.” They were really introduced merely to avoid the principles of the common law; not to become the councellors and champions of the wife against the husband. The idea of trustees in matters of property to control the wife’s impulses of affection or duty is dangerous to the peace and happiness of society. If fraud, imposition, duress or undue influence is shown, the court would protect her, as it does others; otherwise she ought to control her separate property at her pleasure; and the general rules of a court of equity in reference to such property ought not to be based on the supposition, that husbands will be guilty of such conduct. The law of the separate estate of a married woman is not based on any idea, that she needs protection from, the fraud and undue influence of her husband. If she or her friends in any particular case suppose, that she needs protection of this character, they may impose restraints on her powers expressly in the instrument creating the estate; and such restraints so imposed the courts will enforce. But such restraints being not in harmony with the general law on the subject, they will never be implied. To imply it from the direction to the trustees from time to time to pay the rents into *599 the hands of the wife, or that she may dispose of the property by will, or the like, would be to violate the fundamental principle of law, that the owner of any property has a right to dispose of it at his or her pleasure. The same necessity, which led to the introduction of trustees, as mere conduits of conveyances, to avoid the rule of common law, led to the mode of giving to the wife the power of appointment; a power intended for the enlargement and not the restriction of her rights. They were originally adopted as the means, by which a wife might exercise her right of ownership, and when, it was supposed, it might be’necessary to adopt some such means. But the courts very soon held it unnecessary, that such means should bo provided, as she by reason of her ownership had a right to dispose of her property, though no power of appointment was provided in the settlement. But from the early habit adopted of inserting such powers it was continued after it was clearly unnecessary to insert them. But to construe any power of appointment in a specified manner, as a limitation on her right to dispose in any manner, would be to. convert, what was intended as an enlargement, or making certain her power, into a limitation upon it. Such limitation can only exist, where it is expressly inserted as a limitation.
These were substantially the views of appellant’s counsel.
The appellee’s counsel insisted : That the forms imposed in the execution of a power are intended to preserve the person, to whom the power is given, from a hasty or unadvised executiou of a power. The expression of a particular mode of executing a power excludes every other mode of doing it. It is a restraint on the weakness of the wife; and intended to protect her from the power of her husband, whose influence over her is greater in proportion to their mutual love and attachment. Negative words, it is admitted, would limit her power. But in principle negative words can make no *600 difference. Her power being derived from the instrument must be governed by it. There never was a trust deed, that did not place a restraint on alienation. The very creation of a trust imposes a restraint. If the appellant’s doctrine prevails, there must be an end to all trust estates, the shield, that was intended to protect the wife, would be taken away.
The court overruled the decision of Chancellor Kent, three senators dissenting. Spencer, Chief Justice, in his opinion page 578 says : “I have examined the case with the unfeigned respect, I always feel tor the learned Chancellor, who has denied the right of Mrs. Jaques to dispose of her estate, without the consent or concurrence of her trustee; and I am compelled to dissent from his opinion and conclusions. From the year 1740, to the year 1793, (with the single exception of the opinion of Lord Bathurst, in Hulme v. Tenant, which ivas reversed by Lord Thurlow) there is an unbroken current of decisions, that a feme covert in respect to her separate estate is to be regarded in a court of equity as a feme sole, and may dispose of her property without the consent or concurrence of her trustee, unless she is specially restrained by the instrument, under which she acquires her separate estate. There are nearly twenty cases decided by Lord Hardwick and Lord Thurlow, containing the principle, I have stated, and which I shall not weary the patience of the court by citing. The case of Sockett v. Wray, 4 Bro. 483, before Sir R. P. Arden, Master of the Rolls, in 1793, was the-first case to break the continuity of decisions. This formed a precedent for the case of Hyde v. Price, 3 Ves. Jr., 437, and then followed the case of Whistler v. Newman, 4 Ves. Jr., 129; decided by Lord Loughborough.
“In Whistler v. Newman, Lord Loughborough admitted, that the court had gone the length, and he was bound by them, that if a married woman has separate property, she may dispose of it, and the trustees are bound to follow her disposition. In Mores v. Huish, his Lordship distinguished it fromthe preceding cases.
*601 “Those cases are succeeded by many others, after Lord Eldon became chancellor, in which he restored the law' to its first and ancient principle. In the case of Parkes v. White, 11 Ves Jr. 209, he reviewed all the cases, and strongly intimated that the decision in Whistler v. Newman, wasin opposition to all the authorities"for a century. He laid down the rule to be, that a married woman, having an (-.state for her separate use, is- capable of disposing of it, provided the transaction is free from fraud, and no unfair advantage is taken of her.
“ The mistake, into which I think the Chancellor has fallen, consists in considering Mrs. Jaques restrained from disposing of her estate in any other way, than that mentioned in the deed of settlement. The laws, in my apprehension, arc clearly opposed to this distinction; and I am entirely satisfied that the established rule in equity is, that when a feme covert having separate estate enters into an agreement and sufficiently indicates her intention to affect by it her separate estate, when there is no fraud, or unfair advantage taken of her, a court of equity will apply it to the satisfaction of such engagement. This was the principle adopted by Lord Hardwick in Grigby v. Cox, 1 Ves. Sr. 517 and the same doctrine prevailed in Pybus v. Smith, Ellis v. Atkinson and in Nieman v. Cartory, 3 Bro. 340, 346.
In Pybus v. Smith, Lord Thurlow observed, if a feme covert sees what she is about, the court ¶ allowed of the alienation of her separate property. The same principle was adopted in Fettiplace, v. Gorges, 3 Bro. C. C. 8; 1 Ves. Jr. 146, and in Wag staff v. Smith, 9 Ves. Jr. 520: “ It seems to me the power reserved to Mrs. Jaques, by deed, has been misconceived. I understand it, that during her life her estate is to be at her absolute disposal, with a further power to grant and devise it by her last will and testament; but if the power of disposition was specifically pointed out, it would not, preclude the adaption of any other mode oj disposition, unless there were negative. *602 words restricting the exercise of that power, but in the very - mode pointed out.”
It will be observed that these conclusions accord entirely with my understanding of the English authorities, except that Chief Justice Spencer thinks, that in order that a married woman’s agreement may be enforced against her separate estate, she must sufficiently indicate her intention by the agreement to affect her separate estate. I do not think that any such limitation can be deduced from the English authorities. It certainly cannot from the old English authorities; and though such views were afterwards thrown out in several cases, yet they have been since, I think, in substance repudiated, and the old doctrine acted upon, which makes her engagements binding on herj though it does not appear, that she thereby intended to bind her separate estate. It is true, that most of the strongest cases, which indicate clearly a return to the ancient decisions on this point, have been decided since 1820, when this New York case was decided.
' Platt J. in his opinion in Jaques v. The Methodist Episcopal Church 17 Johns. 585 , is still more explicit ; and no such qualification of the English doctrine, as is indicated by Justice Spencer, is to bo deduced from his opinion. His language is: “Thejus disponendi is incident to her separate property and follows by implication. She may give it to whom she pleases, or charge it with the debts pf her husband, provided no undue influence is exerted over her; and her disposition will bo sustained and enforced by a court of equity, without the assent of her trustee, unless that assent be expressly made necessary by the instrument creating the trust. And the specification of any particular mode of exercising her disposing power, does not deprive her of any other mode of using that right, not expressly or by necessary construction negatived in the devise or deed of settlement (Powell v. Hankey, 2 P. Wms. 82; Squire n. Dean, 4 Bro. C. C. 326; Smith v. Camelford 2 Ves. *603 Jr. 698; Brodie v. Barry 2 V. & B. 36; Dalbiach v. Dalbiach, 16 Ves. 126; Peacock v. Monk, 2 Ves. Sr. 190; Norton v. Turville, 2 P. Wins. 144; Ridout v. Lewis, 1 Atk. 269; Stanford v. Marshall, 2 Atk. 69; Allen v. Papworth, 1 Ves. Sr. 163; Penne v. Peacock case temp. Talb. 41; Grigby v. Cox, 1 Ves. Sr. 517; Pawlet v. Delaval, 2 Ves. 663; Niemann v. Cartoney, 3 Bro. 347; Hulme v. Tenant, 1 Bro. C. C, 16; Pybus v. Smith, 3 Bro. C. C. 340; Heatley v. Thomas, 15 Ves. 596; Fettiplace v. Gorges, 3 Bro. C. C. 8.”
The case before the court was of an alleged parol gift by wife of a portion of her separate estate to her husband, and a parol agreement, that their family expenses to be incurred by her husband should be charged on her separate estate. The point decided in this case, thatthe specification of a par bieldar mode, by which a wife may dispose of her separate property, does not deprive her of the right to dispose of -it in any other mode, wdess any other mode of disposition is necessarily, or by construction, negatived by the instrument creating the separate estate, has been ever since followed in the New York courts. See Gardner v. Gardner, 22 Wend. 526 ; Vanderheyden v. Mallory, 1 Coins. 462; Strong v. Skinner, 4 Barb. (N. Y.) 546, 553; Fireman Insurance Company of Albany v. Bay, 4 Barb. (N.Y.) 407; Guild v. Beck, 11 Paige (N. Y) Vh. 475; Whiteall v. Clark, 2, Edw. (N. Y.) Ch. 149.
We need not comment specially on these cases. They establish the right of a wife to dispose of her separate estate at her pleasure, except where her right to do so is expressly, or by necessary implication, negatived by the instrument creating her separate estate. But the other point referred to by Chief Justice Spencer, that before an agreement creating a debt can be binding on the separate estate of a married woman, she must sufficiently indicate her intention to affect her separate estate by it, has since become the fruitful source of discussion in the New York courts; and many nice distinctions have been taken, as to what should lie regarded as sufficiently indicating her intention to bind her separate estate.
The old as well as modern English cases, as we have *604 seen, did not require any specific indication of such "intention. Her engagements and debts are there charged on her separate estate, simply because it is incident to her ownership of separate property, that it should be liable to the payment of her debts without any reference to her purpose of charging them on her separate estate. This is the English doctrine.
In South Carolina too her intention to charge her separate estate with a debt is entirely disregarded : their doctrine being her separate estate is liable for none of her debts, unless specifically made so by the deed creating her separate estate; and then it is so liable without any reference to her intention to charge it therewith.If then the deed authorized- her to charge her separate estate, she could only do it by a specific execution of the power; and no proof of her intention could be substituted for this express charge, which the courts in such case would require.
This doctrine of requiring the intention of a married woman to charge her separate estate with a debt, before it can be bound, is a doctrine unknown to the English courts of the present day, as I understand their de-risions, or to the South Carolina courts. It is the third view of the law on this subject, to which I have alluded, and we must examine the Now York cases especially, to understand this view and the many nice distinctions, as to what should be deemed sufficient to prove this intention of a married woman to charge her separate estate.
The leading case on this subject is Yale v. Dederer; but before this case arose, the Court of Appeals of New' York had decided in Vanderheyden v. Mallory, 1 Com. 462, that the separate estate of a married woman was not bound for her debts contracted before her marriage, unless after her marriage she had charged it on her separate estate by an appointment, that is, as I understand that court, by some act of hers after marriage, which indicated an intention to charge her separate property. Chief Justice Jewett, in delivering the opinion of the court *605 says: “ Courts of equity bold, that bcr #eíi<3raZpersonal en-gageiuents will not affect her separate property. But in consequence of the principle established, that a married woman may take and enjoy property to her separate use courts of equity enable her to deal with it as a feme sole. The right of disposition or appointment is an incident belonging to such interest and power. She may s.ell, pledge or encumber her separate estate, when she shows an intention so to dispose of it, in the same manner as if she were a feme sole, unless specially restrained by the instrument under which she acquires it; and every security thereon executed by her is deemed to be an appointment pro tanto of the separate estate. Hulme v. Tenant, 1 Bro. C. C. 16; Fettiplace v. Gorges, 1 Ves. Jr. 46; 2 Story’s Eq. Jur. §§1392, 1399; Jaques v. The Methodist Fpiseopal Church, 17 Johns. 549 ; Gardner v. Gardner, 22 Wend. 526 .
“ The great difficulty is to ascertain what circumstances, in the absence of any positive expression of thoin- tention to chingo her separate estate, shall be deemed sufficient to create such a charge, and what sufficient to create only a general debt. But it is agreed, that there must be an intention to do so ; otherwise the debt will not affect her separate estate. The fact, that a debt has been contracted bya woman during her coverture, either as a principal or a security, for herself or for her husband, or jointly with him, seems ordinarily to b oprima facie evidence to charge her separate estate without any proof of positive agreement or intention so to do. 2 Story Eq. Jur. §1400.”
Following this expression of opinion by the court, the Supremo Court of Appeals of New York, in 1855 decided in the case of Yale v. Dederer, 21 Barb. 286 , that when a married woman having separate property joins with her husband in giving a promissory note, even as surety for him, she charges thereby her separate estate, though it be not referred to in the note. The position taken by the courtis, that a married woman’s separate property is not liable for her debts and general engagements; unless she *606 has expressly or by implication charged them on her es~tate. There must be an intention to charge, they say, or the debt will not affect her separate estate. They say, that ordinarily this intention to charge will be inferred from her contracting a debt during coverture, either as principal, or surety of her husband, or jointly with him* This decision was appealed from, and reversed' by.the Court of Appeals of New York in 1858, see 18 N. Y. 265 , by a divided court.
Judge Comstock in that case says: “ The contract of a married woman being void at law, the difficulty of subjecting her estate in equity to a note or bond was felt by the court as very great. The difficulty however was overcome ; and the rule mustnow bo regarded as settled; that the written engagements of a married woman, entered into on her own account, to pay money are to be satisfied out of her separate estate. North American Coal Co. v. Dyett, 7 Paige 9 ; Heatley v. Thomas , 15 Ves. 596; Bullpin v. Clarke, 17 Ves. 365; Stuart v. Kirkwall, 3 Madd 200; Owens v. Dickenson, 1 Cr. & Ph. 48; 2 Story’s Eq. §1400. Where the obligation is not on her own account, and in no sense for the benefit of her estate, the question, whether a charge is thereby created, must depend, I think, on the principle, which lies at the foundation of the rule just stated. If the note or bond of a feme covert •is to be taken as a particular appointment of her estate to pay it, in the nature oj an execution of a power of disposition, then I see no reason for a distinction, when she is a surety merely. This was the theory of some of the cases on the subject; but this was obviously a mere fiction.
“ A simple engagement to pay money is not in its nature an engagement to pay out of any particular fund, and cannot, except by a fiction, be regarded as an appointment or disposition of the fund. There is also the further difficulty, which was suggested by Lord Cottenham in Owens v. Dickenson, 1 Cr. & Ph. 48, that if a married woman has contracted several debts in writing, and the instruments are to be regarded as appointments of her estate, the creditors would take priority according to the *607 date of the several instruments. The contrary is plainly true. The creditors of a feme covert have no priority' over each other, unless it be acquired by superior diligence in proceeding to obtain satisfaction, or by some specific lien expressly created for the purpose. Again, as the law is now with us, since the statute of 1849, suppose before .or after marriage she takes real or personal property by inheritance or as distributee 3 in such a case the fietion'of appointment under a power, when she disposes of such estate, is too absurd to be for a moment entertained.
“ The earliest cases on the subject proceed on a more intelligible principle, which did not require the aid of a fiction. Thus in Norton v. Turrille, 2 P. Wms. 145, payment of a married woman’s bond, given for money borrowed by her, was decreed out of her separate estate, on the ground that it was deemed to be held in trust for the payment of her debts. This was regarded as one of the separate uses for which the trust Avas created. So in Peacock v. Monk, 2 Ves. Jr. 193, Lord Hard wick said : ‘ if a Avife, ha\ing an estate to her separate use, borroAvcd money and gaAe a bond for its payment, this would give a foundation to demand the money out of her separate estate.’ So also in Hulme v. Tennant, 1 Bro. C. C. 29, Lord Thurlow held, that the trustees of a married Avoman’s estate Avere obliged in equity to apply it to the satisfaction of her general engagements. These early cases did not suggest the fiction of an appointment, but proceeded on the notion of a trust, and the plain equity of requiring a married A\oman’s engagements, entered into for her own benefit, to be satisfied out of the trust estate. AfterAAards that fiction Avas resorted to, Avhich, besides the objection to it as a mere assumption having not the slightest foundation in fact, Avorked the actual injustice of rejecting the claims of the creditors, A\bose demands Avere based on a general assnmj)sii for money had and received, AAhere there Avas no Avritten ‘ engagement to pay. In such cases the fiction of appointment Avas too grave to be received, and therefore, as there Avas no appointment, *608 ^lür0 could bo no charge; and so it was held. Seo Belton v. Williams, 2 Ves. Jr. 138; Jones v. Harris, 9 Ves. Jr. 486. But the still later cases have in terms or effect repudiated the fiction and with it the distinction between written engagements of a jeme covert and her general liability for money advanced, services rendered, or goods sold.”
lie then proceeeds to show, that such are the recent decisions in England, referring to Owens v. Dickenson, 1 Cr. & Ph. 48, and Murray v. Barlee, 4 Sim. 48, and then adds : “The principle in short, which now governs in cases of this kind, is 'that a wife’s separate estate is liable to -pay her debts during coverture, in whatever from they are incurred, not because her contracts have any validity at law, nor by way of appointment or charge, but because equity decrees it to be just, that they should be paid out Oí such estate. Of course it is not to be denied, that a wife may appoint, or specifically appropriate, her separate estate to the payment of her own or her husband’s debts. She may, if she pleases, even give it to her husband. What I am denying is, that the contracting of a debt is of itself an appointment or charge.”
This is a clear and distinct announcement of the true principle as deduced from the English cases, which is, that a wife’s separate estate is liable to the payment of all her debts however contracted, whether by parol or in writing, not because she has charged them on her separate estate, or because there is any evidence, that she has done anything evincing an intention to make it a charge, but simply because it is her debt, and her property should be liable for its payment; liability to the payment of all debts being an incident to the ownership of property. These clear views have however unfortunately not been followed by the New York courts. The reason for their departure from them will be presently shown.
Judge Comstock expressly condemns the remarks of Chief Justice Jewett, in Vanderheyden v. Mallory, 1 Com. 452, which ho says was obiter merely; but he argued, that as the bond of a feme covert, which she *609 signs merely as the surety of ber husband, was void at law, that on the principle that if a man executed a bond simply as surety, and for any reason it was not binding on him at law, a court of equity would not hold him liable, such court never holding a surety equitably liable, who had been technically discharged at law, this principle he thought applicable to a married woman who was surety' in a bond. And not being bound in law he hold, that her separate estate in such a case could not be hold bound in equity. He admitted, that his views on this point were opposed by the decisions in Stanford v. Marshall, 2 Atk. 69, and Heatley v. Thomas, 15 Ves. 596; but he regarded these cases as decided without sufficient consideration.
I submit, that the true doctrine is, that if she enters into a suretyship for a sufficient consideration, as an advance of money to her principal, i't would bo, were she a feme sole, her own debt; and according to the reasoning of Judge Comstock, her separate estate should be held liable for such a debt, as it would be for any of her other debts. But if she went surety for her husband, or any one else, by signing a note as surety for a just debt of her husband, or such third person, and no new consideration existed for such debt, such as extension of the time'of payment, such surety debt could not be charged on her separate estate, simply because, if she had been a feme sole, such note could not have been enforced against her: the contract of suretyship being in such ease nudum packmi. And though she had sealed as well as signed such note, it could not have been enforced against her separate estate, because, though she would have been bound at law as a feme sole by her having sealed the note, yet this would be, only because she would be es-topped from showing, that it was a nudum pactum. As her bond as a married woman is void at law, such estop-pel could not be relied on in equity; and her separate estate ought not in such case of suretyship to be held bound in equity.
*610 This I understand was the ground of the decision. 'But while I differ with Judge Comstock in his conclusion on this one point, I consider, that he has announced in this opinion the true principles of the law in other respects, as settled by the English decisions, with great force and clearness.
Judge Harris was the only other judge, who delivered an opinion in this case of Yale v. Dederer . He too bases his opinion on the ground, that it was a surety debt, and not one incurred for her own benefit; and while his opinion is not very clearly expressed, I think it may be inferred, that he would have held the wife’s estate bound for any debts, whether in writing or not, which she incurred for her own benefit; though he does say, that she must either make the debt an express charge on her separate estate, or, where she has not in making the contract referred to her separate estate, or expressed her intention to satisfy it out of her separate estate, the circumstances of the case must be such as to leave no reasonable doubt, that such was her intention. He cites however approvingly the opinion of Cowen, J., in Gardner v. Gardner, in which he says: “ The separate debts, contracted by her expressly on her own aeoount, should in all cases be considered an appointment or appropriation for the benefit of the creditor, as to so much of the separate estate as-is sufficient to pay the debt, if she be not disabled to charge it by the terms of the donation.” He refers also to the cases of Colvin v. Currier, 22 Barb. 371 ; Curtis v. Engle, 2 Sandf. Ch. 287; Dickerman v. Abrahams, 21 Barb. 551 ; Goodall v. McAdams et ux., 74 How. (Ñ. Y.) Pr. 385, The North American Coal Co. v. Dyett, 7 Paige 9 & 20 Wend. 570 , as sustaining his views.
But he goes further and says : “ Indeed there is much to recommend the practice, which has been adopted in some of the States, of looking into the circumstances of the casé sufficiently to see, that the wife will suffer no injustice, before allowing a charge upon her separate estate to be enforced. Magwood v. Johnson, 1 Hill’s Ch. *611 228. In this case it 'was held, that a court would enquire into the propriety of an express charge, and not allow the wife to charge her estate by her own mcrp act and will without evidence, that it was necessary, or at least proper.”
Such a rule, it seems to me, would leave the whole question, whether a particular debt should be charged on her separate estate, to the arbitary discretion of the judges who happened to constitute the court.
The court in the case of Yale v. Dederer reversed the judgment of the Supreme Court, granted a new trial and remanded the cause. The only additional fact appearing on the second trial was, that it was proved by parol, that Mrs. Dederer, when she signed the note as surety for her husband, intended to charge her separate estate with the payment of the debt; and on this judgment was again reudered against her. The case was taken by appeal to the Supreme Court; and in 1860 it was again approved by the Supreme Court, (see 31 Barbour 625,) they holding, that as it now appeared that she intended, when she signed this note as surety of her husband, to charge her separate estate with its payment, and that even under the opinion of Judge Harris in the case of Yale v. Dederer, 18 N. Y. 283 , her separate estate was bound. An appeal from this decision was taken to the Court of Appeals, and again reversed: Judges Comstock, Dcnio and Bacon being of the opinion, that the case as "now presented did not vary from that, when formerly before the court, the parol evidence being regarded as inadmissible to explain the note. But a majority of the court based their opinion on entirely different grounds, and held, that “the intention to charge the separate estate must be stated in the contract itself, or the consideration must be one going to the direct benefit of the estate
The only opinion delivered was by Judge Selden. See Yale v. Dederer, 22 N. Y. 451 . He says: “If the instrument, by which the estate was created, conferred upon the wife either a general or qualified power of dis *612 position, no one ever questioned her right to execute the ' power; the doubts, which arose, related to her right to dispose of, or charge, the property independently of such special authority ; and this right was established soon after the introduction of such estates, upon the ground that the right of disposal was a necessary incident to the light of property.
“ That this universal jus disponendi was the sole and only foundation of the right in question is olear. Lord Umr-low in the case of Fettiplace v. Gorges, 3 Bro. C. C. 8 places the right upon this ground ; and no other basis hits ever been suggested for it. Assuming then this to be the foundation of the right, it is plain, that the ivife,to avail herself of it, must make some disposition of the specific property itself. It is clearly impossible to deduce from theyus disponendi, which accompanies all rights of property, power to make any contracts, except such as related directly to the property, to which the right of disposition is attached ; and yet the Master of the Rolls, in Norton v. Turville, 2 P. Wins. 144, and in Stanford v. Marshall, 2 Atk. 69, held the separate estate of a married woman liable for the payment of her bond, although the bond in no manner referred to such separate estate, and in the latter case ivas given for money lent her husband.
“The reasoning, upon which these cases are said to have proceeded, and upon which they are folloived by Lord Thurlow, was this: that it being the rule in equity, that a wile, avIio had a separate estate, might deal with such separate estate in the same manner as if she were sole, it followed, that such estate was liable for her engagements in the same manner, as it would be, if she were a feme sole. This equitable rule, ¶which being founded entirely on the right of the wife to dispose of her property, could go no further than to allow her to make contracts specifically appropriating, or charging her separate estate, was thus expounded so as to enable her to contract generally without in any manner referring to such estate. The doctrine was justly characterized by Chancellor Kent in the case of the *613 Methodist Espiscopal Church v. Jaques, 3 Jobas Ch. 77, whore speaking of the two cases, to which I have re- ° , ferred, among other things he says : It is difficult to perceive, upon what reasoning or doctrine the bond, or parol promise, of a feme covert could for a moment be deemed valid. She is incapable of contracting according to the ‘ common right’ mentioned by Lord Macclesfield ; and if investing her with separate property gives her the capacity of a feme sole, it is only when she is directly dealing with that very property. The cases do not pretend to give her any -of the rights of a feme sole in any other view, for any other purpose.’ ”
It will be seen, that all this reasoning oí: Judge Selden is based on the assumption, that the liability of a married woman’s separate estate is based solely on he]- right oí disposing of her separate property at her pleasure. This fully appears from the portions of his opinion, which I have italicised. lie says, that the’liability of her separate estate was placed by Lord Thurlow in the case of Fetti-place v. Gorges, solely on this ground; and he adds: “ No other basis has ever been suggested for it.” This is a palpable error of Judge Selden, and a most singular assumption. Though the case of Fcttiplaee v. Gorges, 3 Bro. C. C. 8; 1 Ves., Jr., 46, was not one, in which .it was sought to charge a married woman’s estate with a debt, and the only question involved washer right to bequeath her personal estate, and of course we had no right to anticipate any expression of opinion on the question of the grounds, on which her separate estate was held liable for her debts; yet the Chancellor, as if to prevent the possibility of any one falling into such an error, as Judge Selden seems to have fallen into, takes care to say: “all the cases show, that the personal property, when it can be enjoyed separately, must be so with all its incidents> and the jus disponendi is one of them.” Is it not clear that the Chancellor from this was bound to hold, that the ■wife’s separate estate was liable for cdl her debts, whenever the question arose? He says, she must enjoy it *614 with all its incidents as property; and no one can dis-lte, that liability to the payment of all debt-sis as much incident of the ownership of property as the jus disponendi. And to make his meaning still clearer, ho significantly adds : “ The jus disponendi is one of these incidents.” And accordingly in all cases, which came before him for decision, Lord Thnrlow held, that a wife's separate estate was liable for the payment of her debts. The statement of Judge Selden, that the liability of the estate of a married woman was based solely on her jus disponendi, “and no other basis has ever been suggested for it,” is even more strange than his misconception of Lord Thurlow's views in Fettiplace v. Gorges. The truth is, for a long series of years after it was firmly established by numerous decisions, that a married woman’s separate estate was liable for certain of her debts, there was no suggestion, that the basis of this liability was her jus disponendi, or that it was only liable because she had charged her separate estate with it. . This liability was enforced over and over again, when there Avas no allegation, that she had made any charge of it on her separate estate; and not the slightest allusion is made to her charging her estate as the basis of its liability ; but on the contrary they Avero evidently charged on her separate estate, because liability to their payment Avas an incident to her OAvnership of the separate estate. This avc have shoAvn, Avas clearly the doctrine of all the old English cases.
' Judge Story in his Avork on Equity, volume 2, section 1401 sIioavs, that the old English cases do not put the liability of a married woman’s separate estate to the/ payment of her debts on the ground, that she had charged a particular debt on her separate estate, that is, on her jus disponendi. He says : “ In the earlier English cases the doctrine Avas put on the intelligible grounds, that a married Avoman is as to her separate property to be deemed a feme sole; and therefore that her personal engagements, though they Avould not bind her person, *615 should bind her separate property.” And to sustain this proposition he refers to Hulme v. Tenant, 1 Bro. C. C. 8, (Mr Bell’s note); Peacock v. Monk, 2 Ves. 193; Norton v. Turvill, 2 P. Wms. 144; Lillia v. Airey, 1 Ves. Jr. 277; Mansfield, C. J., in Morse v. Oraig, 5 Bos. & Pul. 162; Angel v. Hadden, 2 Meri v. 163.
Judge Selden is even more unfortunate in referring to the case of Norton v. Turvill, 2 P. Wms. 144, than he was in his reference to that of Fettiplace v. Gorges, 3 Bro. C. C. 8,- for so far from countenancing his notion, that no other basis for holding the separate estate of a married woman liable for her debts, except her having charged her separate estate with it under jus disponendi had ever been suggested, Norton v. Torvill, 2 P. Wms. 144 put the liability of her separate estate on the broad ground, that it is liable as a matter of course, to the payment of all her debts, the trust creating her separate estate being a trust also for the payment of all her debts. The Master of the Iiolls as the basis of his judgment, says: “ It is true, that the bond given by the married woman was merely void-, and in that respect differs from a bond given by an infant, which is merely voidable; but in this case all the separate estate of the married woman was a trust estate for the payment of debts;” and therefore he held it liable. Surely this was not basing the liability of her separate estate on her jus disponendi.
Of course it was easy to show, that this decision was utterly inconsistent with the assumption, that the only basis, on which any debt could be charged on the estate of a married woman, was that she had, under her jus disponendi, charged the estate with a particular debt; but it does not follow, that the decision was erroneous; it only shows, that the assumption, that the only ground for the holding of her estate liable was based on her jus disponendi, is utterly unfounded. I do not say, that this has not been suggested as the only ground for this liability. Some of the old cases may have suggested this as one ground; but I say, that the old English cases were *616 decided generally on the broad ground, tliat her separate was liable to all her debts as an incident to the ownership of the property, and without any reference to her having charged a particular debt on her separate estate; and though there did follow a number of cases, in which it was suggested, that the basis of the liability of a married woman's separate estate, was her so charging it expressly, or impliedly, under her jus disponendi: yet the modern English cases have substantially repudiated this novel ground as the basis of this liability, and have in principle, though not always in express words put it upon the old and intelligible ground, that her separate, estate was liable to the payment of all her debts, that being an incident to her ownership of the property. This position, I think, I have clearly shown is sustained by the earliest as well as most recent English cases.
The allegation of Judge Selden, that the wife's right to charge her separate estate with a debt under her jus disponendi was the only basis, on which this liability had ever been suggested to be founded, is still more remarkable, when we consider, that when he announced this strange proposition, Chief Justice Comstock was on the bench, and he had in this very case, when'formerly before the cofirt, not only suggested another basis for this liability, but had shown in a forcible opinion, that this liability for the payment of debts by the separate estate of a married woman was in no manner based on her jus disponendi, but was entirely independent of it, and that it was immaterial, whether she had charged the debt on her separate estate under her jus disponendi, or not, and without such charge, if it was her debt, her separate estate was in all cases liable for its payment, as an incident to her ownership of the property. His conclusion was : “ The principle in short, which no ay governs in cases of this kind, is that a rvife's separate estate is liable to pay her debts during coverture, in whatever form they are incurred, not because her contracts have any validity at la>v, nor by way of appoint- *617 merit or charges, blit because equity decrees it to be just, ' that they should be paid out of such estate.”
If I can understand language, this was certainly a different basis of liability from that assumed by Judge Seldcn to bo universally admitted as the only basis of this liability.
The whole reasoning of Judge Selden throughout his opinion is based on these false premises, and is therefore unsound and fallacious. The opinion of Chancellor Kent referred to by Judge Seldcn was overruled, as we have seen, by the Court of Appeals of New York, and though the particular part of the opinion of the Chancellor, which’ is quoted, was not commented on in the Court of Appeals, this can easily be accounted for, when we advert to the fact, that in that case the question raised was not as to the liability of a married woman’s separate estate for her debts. . Besides this false assumption of premises Judge Selden’s opinion is liable in other respects to criticism; but I shall not further criticise it, but will content myself with some' quotations from an able review of this opinion by Chief Justice [Dixon in Todd v. Lee et al., 15 Win. 371 .
In speaking of this case he says : “1 wouhl gladly have avoided all comment on this case. My patience has been so tried in considering it, that I fear I cannot give it an impartial examination — -that I may deal unjustly by a learned judge, whose candor and ability have uniformly commanded my highest respect. 1 feel, that he has done himself great injustice — that he has given way to a spirit of disingenuousness and cavil, which seem every where to pervade llie opinion. * * * * Had he not perverted the decisions, unintentionally perhaps, to suit his own purposes, and placed the courts in attitudes they never chose to occupy, the task would have been less laborious and far more, pleasing.
“Disposition in short is this: A married woman possessed of separate property under the statute, cannot bind her separate estate in equity for the payment of any debt con *618 tracted by her, unless it be a debt incurred for the direct 'benefit of the estate itself, without the formal execution of an instrument specifically appropriating, or disposing of, the estate to that purpose in such manner as to subject it to actual charge or lien. The/us disjoonendi is not denied. She may charge her estate with the payment of her own debts, or those of another ; but to do so in either case, she must execute some agreement, or perform some act, which at least would amount to a mortgage or pledge, if she were ájeme sole. It will be seen at once, that the learned judge sticks in the bark, that it is to be a revolution without cause or reason, inaugurated to effect a change in mere matters of form. No additional guards are to be thrown around her estate; no new indemnity gained; but a ceremony is to be observed not before deemed necessary. To accomplish this, she must be deprived of one of the principal advantages arising from the ownership of property in all commercial countries : the privilege of obtaining, if need be, a general credit on the faith of that property.
“To prove that this is, or ought to be, the law, the learned judge begins by asserting, that the ‘universal jus disponendi was the sole or only foundation of the right in question, and that no other basis has ever been.suggested for it.’ So untrue is this in point of fact, that the eases, where it has been sustained as an exercise of the disposing power, are so few as to scarcely constitute an exception to the greatmiunber, in which it has been placed on an entirely different ground, namely, that a married woman possessed of a separate estate is, as to all matters pertaining to such estate, exceptas she is expressly limited by the instrument creating it, to be regarded in equity as a jeme sole, and may charge or affect it by any act or contract, which would be binding at law, if she were unmarried. Not that she can bind herself personally, nor that the engagement is an execution of her power to dispose of the property and constitutes a lien upon it; but that it is one of the inherent qualities of the *619 estate itself — an incident annexed to it as common to property in general, and necessary to its full enjoyment —that the owner may contract debts to be paid out of it, for which equity, in default of process at law, will under proper circumstances give execution, in case payment is not made. This is the doctrine of both the earlier and later English decisions; and it is only in a few cases, not much discussed, before Lord Loughborough and Sir John Leach, Vice Chancellor, that it is spoken of as an appointment, or execution of a power. It was also the doctrine of the courts of New York, as will be seen by the quotations already made.”
He then reviews the English cases, and shows, that they sustain this position, and expresses his surprise, that Judge Seldom should refer to - the case of Fettiplace v. Gorges, and Norton v. Turvill, and Stanford v. Marshall, and also to show, that Chancellor Kent is made to contribute too strongly to the judgment in Yale v. Dederer. He then proceeds to comment on Judge Seldeids opinion, in which he alleges, that Lord Cottenham in Owens v. Dickenson, 1 Cr. & Ph. 48, inaugurated an entirely new doctrine : “that equity lays hold of the separate property, and appropriates it to the payment, of the debt, not on account of anything contained in the contract; not because the wife by any agreement, expressed or implied, has made the debt a charge; but because she has the power incident to property in general, namely: the power of contracting debts to be paid out of itand on that portion of Judge Selden's opinion, in which he says, that these views of Lord Cottenham are irreconcilable with the views expressed by Lord Brougham in Murray v. Barlee, 4 Sim. 48. His comments are striking.
On this portion of Judge Belden’s opinion Chief Justice Dixon says: “We fail utterly to perceive the alleged discrepancies in the reasoning of Lord Brougham and Lord Cottenham. Their views seem to us to be in harmony, and stand well together. They reach the same *620 conclusion by slightly different, but not inconsistent, 'modes. After noticing that the existence of the wife is merged in the husband at law, Lord Brougham says : ‘But in equity the case is wholly different. Pier separate existence, both as regards her liabilities and rights, is here abundantly acknowledged; not indeed that her person can be made liable, but her property may; and it may bo reached through a suit instituted against herself and her trustee.’ Lord Cottenham says: ‘According to that view (Hulme v. Tenant) the separate property of a married woman being a creature of equity, that if she has a power to deal with it, she has the other power incident to property in general, namely : the power of contracting debts to be paid out of it; and inasmuch as her creditors have not the means at law of compelling payment of those debts, a court of equity takes upon itself to give effect to them, not as personal liabilities, but by laying hold of the separate property as the only means, by which they can be satisfied. These views ar e not inconsistent.” I will add, that the views of Lord Cottenham |pre, I understand, the same in substance as those expressed by Lord Thurlow, in Hulme v. Tenants 1 Bro. C. C. 16.
In another part of his opinion Chief Justice Dixon, p. 375, says, that in Hulme v. Tenant, Lord Thurlow, entertained these views and expressed them clearly, quoting his language as follows : “ I have no doubt about the principle, that if a court of equity says a feme eoveri may have a separate estate, the court will bind her to the whole extent, as to making that estate liable for her own engagements, as for instance, for the payment of debts, &c.” He further says, that the only question in his mind was, how it was to be enforced out of her separate estate by the sale of it, or by an application of the rents and profits to the payment of her debt. And that in this connection Lord Thurlow says: “The question is, what sort of an execution this court will award against her separate estate.” Chief Justice Dixon says, that the language of Lord *621 Thurlow, used by him in the discussion of this question, is quoted by Judge Selden, us applicable to the question at large, and Judge Dixon says: “if this be not perversion of authority, I am a loss to know what it is.”
As this is strong language tor a judge to use, I will .quote what Judge Seldon does say, and compare it with what Lord Thurlow said. Judge Selden says in 22 New York R. pp. 453, 454: “But though Lord Thurlow followed, as we have said, what he. supposed to be the rule established by the cases' referred to, ho nevertheless saw the fallacy, on which those eases were based, as appears by his remarks in Hulme v. Tenant, 1 Bro. C. C. 16, the leading case on this subject. There the separate estate oí a wife was held liable for a bond given for money borrowed, part of which had been borrowed by her husband. After referring to the previous cases Lord Thurlow says : H take it therefore to be impossible to say, but that a feme covert is competent to act as a feme sole with respect to her separate property, when settled to her separate use ; but the question here goes a little beyond tiiat; it is not only how far she may act upon her separate property: I have no doubt about that; but the questiou is how far her general personal engagements, shall be executed out of her separate property; still, although thus clearly seeing the distinction, which ought, as it would seem, to have been decisive against the claim, he nevertheless yields to the authority of previous cases, and holds the separate estate liable.”
I will uow give the full quotation from Lord Thur-low’s opinion in Hulme v. Tenant. He says : “I take it therefore to be impossible to say, but that a feme covert is competent to act as a feme sole with respect to her separate property, where settled to her separate use. But the question here goes a little beyond that; it is not only how far she may act on her separate property : I have no doubt about that; but the question is, howjTar her general personal engagements shall be executed out of her separate property. If she had by instrument *622 contracted, that this or that portion of her separate estate should be disposed of in this or that way, I think she and her trustees might have been decreed to make that disposition; but if she enters into an engagment, which would make a feme, sole liable to the whole extent of the contract as to her person, &c., in every respect, it is clear such general engagement entered into by a feme covert will not bind her as such. It is not like the case of an infant, who is incapable of acting; but in respect to a feme covert determined cases seem to go thus tar : that the general engagement of the wife shall operate on her personal property, shall apply to the rents and profits of her real estate, and that her trustees shall be obliged to apply personal estate, and rents and profits, when they arise, to the satisfaction of such general engagement ; but this Court has not used any direct process against the separate estate of the wife, and the manner of coming at the separate property of the wife, has been by decree to bind the trustees, as to personal estate in their hands, or rents and profits, according to the exigencies of justice or the engagement of the wife, to be carried into execution. I know of no case which goes further than that. Suppose the wife to have power by settlement, to dispose of the real estate to any uses she shall think fit, yet the trustees must make the formal instrument, without which the estate cannot pass. I know of no case, where the general engagement of the wife has been carried to the extent of decreeing, that the trustees of her real estate shall make conveyance of the real estate, and by sale, mortgage or otherwise, l'aise the •money to satisfy that general engagement on the part of the wife.” LoidThurlow subsequently in the same case said : “I have no doubt about this principle, that if a court of ecpiity says a feme covert may have a separate estate, the court will bind her to the full extent as to making that estate liable to her own engagements: as for instance, for the payment of debts, &c.”
There cannot upon these clearly expressed views in *623 my mind be tbo least question, that Lord Thurlow regarded the separate estate of a married woman liable to all her debts; nor did he have any question, but that her separate estate was as liable for the payment of general debts and engagements, as those which she had specifically charged on a portion of her separate estate. The only question, which he entertained any doubt about, was, whether her general engagements and debts could be executed out of her real estate by ordering the trustees to sell or mortgage it. This the court could do, if she had specifically agreed, that a portion of her real estate might.be sold to pay a particular debt; but if not thus specifically charged, he concluded that a general debt could be executed only by the sale of her personal estate and out of the rents and profits of her real estate. The only difference, he recognized as having any existence between her general engagements and specific charges, was in the mode of executing or enforcing them out of her real estate.
It is obvious, that the quotation in Judge Selden’s opinion from Lord Thurlow, disconnected as it was from what proceeded and succeeded it, was calculated to mislead the reader as to Lord Thurlow’s views; and the conclusion of Judge Selden, that he perceived a difference as to the liability of a married woman’s estate between her general engagements and those charged by her on her estate, is clearly wrong. The only difference, Lord Thurlow perceived between these, ivas in the mode, in which they were to bo executed, or satisfied, out of her separate estate. In the quotation, Judge Selden made from Lord Thurlow, instead of italicising the words ‘•general personal engagements,” as he did, he should have italicised the words “shall be executed out of her separate property.” I would not use the strong language of Chief Justice Dixon, that this was a perversion of authority; but I would say, it was an entire misapprehension by Judge Selden of its meaning. And I might well say, the same or as great a misapprehension *624 exists as to the meaning of various other authorities, he ‘cites in this opinion; but I have dwelt upon itto'o long already.
Chief Justice Dixon further says: “We do think, that we can see and appreciate great inconsistencies in the reasoning of Judge Selden. And as instances of it he points out the denial of the judge, that parol evidence could be received, as he says, to explain or qualify the contract so as to charge the separate estate, and insists, that the contract itself on its face must make the charge ; and yet he admits, that every debt incurred for the direct benefit of the estate is binding on the estate, as Judge Selden says : ‘If contracted for the direct benefit of the estate itself, it would of eoiuso become a lien, upon a well founded presumption, that the parties so intended, and in analogy to the doctrine of equitable mortgages.’ This,” says Judge Dixon, “is pushing analogy beyond all reason. If a married woman buys a team for the use of her farm, the debt incurred becomes by this view an equitable mortgage on the farm, as if it were a part of the purchase money of the farm. There is no analogy; and hence Judge Selden falls back on the presumed intention to make a charge ; a doctrine, which thoughout his opinion he had argued, was fallacious. This intention he had shown could not be made to stand for the contract to charge, which was essential. And then how can the court learn, whether a contract, or note, was given for the benefit of the separate estate, except by receiving parol evidence ? ITow except by parol evidence could it appear in that case, that this note signed by Mrs. Dederer and her husband was her note, given for the direct benefit of her separate estate, and her husband was only surety, if such was the fact ? yet if this had been the fact, her estate would have been held liable. The parol evidence must be received in such case, before, on the rules laid down by Judge Selden, it is possible to decide, whether her estate is, or is not, liable; and yet he would according to his views have to *625 exclude such evidence. The parol evidence ought to have been received in this case in equity, where parol' evidence is received, where two have signed paper commercial, and otherwise to show the nature of the transaction and to change and modily apparent rights and liabilities. I would add, that when this case came a third time before the court, parol evidence was admitted on the question, whether the bond signed by Mrs. Dedcrcr and husband ivas, or was not, given for the benefit of her separate estate. See 68 N. Y. R. p. 329.”
Upon the whole I must say, that these criticisms of Judge Dixon on this opinion are substantially sound in my opinion, though the language he has used is rather unjudicial in its character, and some of his inferences are not just.
The case of Yale v. Dederer, was reversed the second time, and remanded for a new trial in 1860. See 22 N. Y. 461 . On this third trial an effort was made to prove that the debt sued on was contracted by Mrs. Dedcrcr, for the benefit of her separate estate; and the evidence seemed to establish, that a portion of it was for the benefit of her estate, but the Supreme Court held otherwise and rendered a judgment against the plaintiff; and it was a third time by appeal brought in 1878. (See 68 N. Y. 329 ) before the Court of Appeals of New York, who being of opinion that upon the record as presented to them, the debt could not be regarded as contracted for the benefit of Mrs. Dedercr’s separate estate, held, “that the rule, that in order to charge the estate of a married woman with a debt not contracted for the benefit of her separate estate, the intent to charge such estate with the obligation must be expressed in the instrument, is res adjndieata in this case ( 22 N. Y. 450 ), and having been established as the law of the State will not be departed from.”
The only opinion delivered was by Church, Chief Justice, who having reached this conclusion, adds: “In the case of Manhattan B. & M. Company v. Thompson, 58 *626 N. Y. 80 , in delivering the opinion of the court, I inti- ' mated a regret, that the rule had not been established differently, so that since married women are allowed by the statute to take, hold, manage and dispose of property as fully and completely as if they were unmarried, the signing of a note or other obligation should be deemed a sufficient evidence of an intention to charge their separate estates; and further reflection and examination has confirmed the impression then expressed; but I then thought the rule had been too long established as the law of the State to justify the court in overruling it; and I am still of that opinion. There is every reason for referring the question to the legislative power to determine definitely what rule shall finally prevail.-” As the other judges rendered no opinion, I presume they entertained the same views.
In the case referred to by the Chief Justice, his opinion, of how the law ought to have been settled, goes further than in this last opinion. In that opinion (see 58 N. Y. 84 ,) he says: “If when the Legislature changed the common law in essential particulars, in regarding the interest in property of the husband and wife to a considerable extent as distinct and independent, and in recognizing the capacity of the wife to judge and provide, Avhat her own welfare requires in acquiring and holding the legal title to property, and managing and disposing of the same, as if unmarried and without subjection to the control of her husband, tire courts had adopted, as a reasonable and legitimate sequence, the correlative rule of a capacity to contract debts, as if unmarried, restricted only to their collection from separate property, it might well be claimed, that the rights of married women would have been as well, if not better protected practically, and business morality more promoted, and a flood of expensive and vexatious litigation prevented.
“ Courts of equity in England have uniformally exercised a power of enforcing contracts of married women against their separate estate, which has practically pro *627 duced this result, 2 P. Wms. 144; 1 Cr. & Ph. 48. But our courts have adopted more conservative princi-pies; and it is better to adhere to them, until the legislature in its wisdom and power shall see fit to change them.”
I understand the Chief Justice to regret, that the English rule, whereby a married woman’s separate estate is made liable for all her debts, as if she were unmarried, liad not been adopted ; and as saying, that the abandonment of this English rule has been practically found in that State to be, not only contrary to sound public ¡.policy and injurious to business morality, but also of no practical benefit in protecting the property of married women. And I further understand him frankly to admit, what was Strenuously denied in 1860, when Yale v. Dederer, was decided, that the courts of equity in England have always exercised a power of enforcing contracts of married women, wdiich practically amounted to subjecting their separate estate to the payment of all their debts, however contracted. These admissions are important as a warning to us; and a review of the New York cases since the decision in Yale v. Dederer, in 1860 will, I think, clearly show, that the only effect of that decision has been “to produce a flood of expensive and vexatious litigation ; ” that it has failed practically to better protect the property of married women; and has been prejudicial to sound public policy and business morality. The very case, in which those views are expressed, is a strong illustration of all these views of the Chief Justice.
In that case a married woman in writing authorized her husband to contract with plaintiff for her, and in her name, for certain articles, and said in the writing, that the plaintiff might hold her responsible for any contract made therefor with the plaintiff. The articles were accordingly bought and used in his business by the husband ; but as she did not expressly charge her separate estate with the payment of. the debt, it was decided by a *628 divided court, four to three, that her separate estate was “not liable for the payment of the debt; Chief Justice Church concurring with the majority. He was of the opinion, that under the law as laid down in Yale v. Dederer, 22 N. Y. 456 , her estate could uot be made liable ; though he well, says : “the facts present a strong case of moral liability against the defendant for the payment of the debt.” Many other cases, in which ecpially gross injustice has [resulted from this rule, have been presented by the New York decisions. Thus in White v. McNutt, 33 N. Y. 371 , the husband and wife transferred a mortgage owned by the wife, with a guarantee of collection signed by both husband and wife, and because the consideration of the transfer was paid to the husband, and was not in fact applied to the benefit of her separate estate, though the bond transferred belonged to the wife, yet a majority of the court held her separate estate was not bound by her guarantee.
In Weir v. Groat, 4 Hun. (N. Y.)193, a merchant re•fused longer to trust a husband for groceries and provisions ; his wife, who had a separate estate, then agreed, that she would be responsible for the groceries thereafter furnished, saying that she had separate property; and a memorandum book was furnished her, and she charged in it the groceries furnished; she afterwards promised to pay this debt. The court admitted, that she could by a verbal contract made on a good consideration, as in this case, charge her separate estate by simply expressing such incention; but as she had not expressed such intention, her separate estate was not liable in this case. The court say : “ in order to charge her estate, she must express such intention in her contract. This she has not done. The respondent labors under the false idea, that such intention may be inferred from her simple promise to pay. That would destroy the only distinction now remaining between the contracts of a married and unmarried female.”
This case seems irreconcilable in principle with Con *629 lin v. Cantrell, 64 N. Y. 217 , where the court decided: “that in order to charge a separate estate of a married' woman with a debt, it is not necessary, that there be a specific agreement'to that effect. The intent may be inferred from the surrounding circumstances.” In that case a seamstress did work for a married woman and her children, she not living with her husband. She told the seamstress, she had separate property, but did not say she would pay for her work out of it, but promised to pay her after the work was done. It was held, that her separate estate was liable. If the true principle, on which the New York courts act, as stated in this ease, be that “the intent to charge the separate estate need not be expressed, but may be inferred from surrounding circumstances, I cannot see, how it was possible to refuse to draw this inference in the case of Weir v. Groat, 4 Hun. 193 .
The trouble with the court in that case was evidently, that if the)" did not require this intent to be expressed in the contract, and permitted it to be drawn from surrounding circumstances, they would break down entirely the distinction attempted to be made between general debts and debts charged by a married women on her separate estate. And indeed it is difficult, if not impossible, to perceive, how any circumstances can prove this intention more clearly than the simple fact, that a mar-, ried woman having separate estate contracts a debt and promises to pay. It is impossible to conceive, what such contracting of a debt and promise to pay it can mean, except that she will pay it out of her separate estate. This is the only possible way, in which she can be made to pay it; and if she does not by such promise mean to pay it in this manner, it must be, that knowing this nice point of law she intends to mislead and defraud. If she makes this promise to pay in writing, the English courts, who when for a time they acted on this false idea, that a charge of her separate estate was necessary, inferred, that her intention was to charge her *630 separate estate simply from her promise to pay the debt; 'but this inference the court in Yale v. Dederer, 22 N. Y. 456 , refused to draw and yet in Conlin v. Cantrell, 64 N. Y. 217 , we find the court drawing this inference ot an intent to charge from' a verbal promise to pay and surrounding circumstances. The inference then, drawn from surrounding circumstances in the case of a parol contract, cannot be just, when the courts refuse to draw this inference from her solemn promise in writing to pay a debt: a promise entirely unmeaning, if it does not mean, that she will pay out of her separate estate. And surely, if the surrounding circumstances are to be considered, the court ought in The Manhattan B. & M. Co. v. Thompson, 58 N. Y. 80 , to have held the married woman’s estate liable for the. debt. Her purpose in making the contract, as shown by the surrounding circumstances, was unquestionably to make her separate estate liable; and if it had been a verbal contract, which she had made, I presume'the court would have held her separate estate liable under the circumstances; but as the contract was reduced to writing, they refused to do so.
When reduced to writing, the New York courts appear to proceed on the idea, that there must bean express charge on the separate estate made by the contract, or it cannot be made liable under any circumstances, except when it is for the direct benefit of the estate. But the identical same contract, if not reduced to writing, they would .under the same circumstances hold, makes the separate estate liable. The reduction to writing of the contract, intended obviously to render more certain the payment of the debt, is thus made a reason for defeating its payment. This difficulty (I would almost say absurdity) was caused by the language used by Judge Seldon in delivering the opinion of the court in Yale v. Dederer, 22 N. Y. 456 , where he says: “Lord Brougham says, that though originally the courts supposed, that to affect' the separate estate there must be some real charge, as a mortgage, or an instrument amounting to the execution *631 of a power, afterwards the 'intention of the wife was more regarded; and the court only required to be satisfied, that she intended to deal with her separate property. The intention here spoken of is not an intention, which is proven by extraneous evidence dehors the contract, but an intention, which is to be inferred from, and is therefore embraced in, or manifested by, the contract itself. No court has ever held or intimated, that parol evidence was admissible to prove, that the bond or note of a feme covert was intended to be a charge upon her estate.”
I would simply say, that before the English courts abandoned the idea of any charge expressed or implied being necessary, they uniformly held, that if such,charge were necessary, it'was necessarily implied from the mere giving of the bond or note; for when she gave her bond or note, it must be presumed, that she intended it to have some effect; and as it is void at law, and can have no effect, unless it is a charge on her separate estate, it follows, that she must intend it to be such charge. These being the decisions and this the reasoning of the courts, of course there was no necessity to prove the surrounding circumstances, as showing her intent; and no evidence of it was ever offered. Had it been necessary to show their intent and had it been offered, I doubt not it would have been received by the English courts, as it might properly have been according to the general rules of law in such cases.
In Maxon v. Scott, 55 N. Y. 247 , it was held, that a married woman’s separate estate was bound for the payment of the board of herself and husband, which she engaged, and verbally promised to pay, and charged her separate estate with it. When this case is compared with Weir v. Groat, 4 Hun. 194 , it seems that in New York, if a married woman, having a separate estate, bpy necessaries for the family, and promises to pay for them and has them charged to herself, her separate estate is not liable; but if the clerks in the store prove, that she *632 promised to pay for them out of her separate estate, then her estate would be responsible, though no one can see or understand the difference between promising- to pay for them and having them charged to herself, and promising to pay for them out of her estate; and what is still worse, if the merchant, after she has promised to pay for them out of her estate, and is thus responsible, should in his ignorance take from her a note, in which she promised to pay the amount, but said nothing about her separate estate, he -would thereby, according to Yale v. Dederer, 22 N. Y. 456 , release her estate from its payment.
Well may Chief Justice Church say in Manhattan B. & M. Co. v. Thompson, 58 N. Y. 85 , while following their decisions as authority: “the rights of married women would have been as well, if not better protected practically, sound public policy and business morality more promoted, and a flood of expensive and vexatious litigation prevented,” had the English rule of holding her separate property liable for all her debts been adopted.
At one time it was decided in New York, it is true, in Kelso v. Tabor, 52 Barb. 125 , that a married woman as surety cannot charge her separate estate in equity by a contract void at law. This would have been perhaps a practical protection to her property; but this case was overruled in the Corn Exchange. Insurance Co. v. Babcock, 42 N. Y. 643 , where it was held, that her endorsement of her husband's note without consideration bound her separate estate, if she added to the endorsement the words “she charged her individual property with the payment of the note.” it is true, without these words the court said her separate estate would not be bound by her simple endorsement. But this is obviously no protection practically to her property, as every one after this decision would require her to insert these words before her signature.
In this case, The Corn Exchange Insurance Co. v. Babcock, 42 N. Y. 643 , as well as in Maxon v. Scott, 55 N. *633 Y. 247 , tbe court held, that this charge of a debt contracted by a married woman upon her separate estate is not a specific lien, but is enforceable against all such property, as she may have, at the time satisfaction is demanded; and-it may therefore be a charge in general words specifying no particular property. In the last case they further deduced from this conclusion, that it might be verbal as well as general. In so deciding they destroyed all possible protection, which might have been supposed practically to have resulted from requiring married women to charge a debt on their separate estate, before it should be held liable.
The whole law as laid down by the New York courts now amounts to requiring a married woman woman to observe a certain form in contracting a debt, or giving security, that is, to say or write, as the case may be, that she will pay it out 6f her property; and even if she should not in a verbal contract observe this mere form, it would be practically easy to prove, that she did, For a lair witness could hardly be expected to remember, whether she said she would pay the debt out of her property, or simply said, she would pay it. For to the mind of any one, not acquainted with this exceedingly nice distinction, the one phrase, or the other, would be regarded as having identically the same meaning The exact words used could hardly be remembered; and yet on this unmeaning difference the rights of parties are to be determined.
The other portion of the rule laid down in Yale v. Dederer, 22 N. Y. 450 ; that if the married woman has not expressly or impliedly, charged her separate estate with the payment of a debt, it is only liable, when the consideration of this debt is for the benefit of her separate estate, in which case it will be an equitable mortgage, has, it seems to me, not been followed in a logical manner. It could, if not founded on a charge expressed or implied, be an equitable lien, only on the ground that as it was the duty of her trustee, or of her husband act *634 ing as her trustee, if she had none, to improve the trusf 'property. If the money of a stranger is thus expended, such stranger would be substituted to the right of the trustee, to charge the property itself with the reimbursement of the money, thus expended for the benefit of her estate; and on this ground this rule is based in the cases in South Carolina. See Cater v. Eveleigh, 4 Desau, (S. C.) 19; James v. Mayrant, Id., 591 ; Montgomery v. Eveleigh et al., 1 McCord (S. C.) Ch. 267; Magwood & Patterson v. Johnston et al., 1 Hill’s ch. 228. But if this be the basis of the rule, the separate estate of a married woman could only be liable, when the money borrowed was actually expended for the benefit of the separate estate, and this has been held in Pennsylvania. See Hugh v. Jones, 32 Pa. St. 432; but the contrary has been held in New York, in McVey v. Cantrell, 70 N. Y. 295 . It was there decid.ed, that if a married woman borrowed money, and gave her promissory note therefor, and stated at the time, that she wanted it for the benefit of her separate estate,’ it would be liable therefor, though not so expended, but used in family expenses. The court bases this decision on the presumption arising from her saying she wanted the money to improve her estate, proved by parol evidence, that she intended to charge her estate

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6591979. Public record. Not legal advice.