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the policy and the power of a feme covert becoming a feme sole by a deed of separation. She was incompetent to contract with the husband; and if separated, she could not be a witness against her husband ; she could not commit felony in his presence; she must follow the settlement of her husband ; her husband would be suable for her trespass. In short, the old rule is deemed to be completely re-established, that an action at law cannot be maintained against a married woman, unless her husband has abjured the realm.a

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

· See the observation of the Master of the Rolls, in 3 Vesey, 443, 444, 445.

b Salk. Rep. 116.
< 5 Bos. of Pull. 148.

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

• Seo 2 Halsted's Rep. 150, where that case was expressly condemned.

*162 perhaps, not exactly under the same straitened

limitation mentioned in the books.a

IV. Wife's capacity, in equity :
(1.) Of property in trust for wife.

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

• In some of the states, as Pennsylvania and South Carolina, a wife may act as a feme sole trader, and become liable as such, in imitation of the custom of London. Act of 1718, Purdon's Dig. 424. Burke v. Winkle, 2 Serg. f Rawle, 189. Newbiggin v. Pillans, 2 Bay's Rep. 162. State Reports in Equity, S. C. 148, 149. But for greater protection to the wife, no suit can be brought, in South Carolina, by or against a feme covert sole trader, unless her husband be joined. 4 M Cord's Rep. 413; and in Pennsylvania the privilege extends only to the wives of husbands gone to sea, and whose wives are left at shopkeeping, or to work at any trade for a livelihood. In Louisiana the wife has peculiar powers and privileges, and may be a public merchant and bind herself, yet she cannot contract a debt by note without the authorization of her husband. Civil Code of Louisiana, art. 128. 2412.12 Louisiana Rep. 13.

h Lee v. Prieaux, 3 Bro.C.C.381. Norris v. Hemingway, 1 Hagg. Eccl. Rep. 4

Ex parte Gadsden, S. C. Law Journal, No. 3. 343. Carroll v. Lee, 3 Gill of Johns. 504. Beable v. Dodd, 1 Term Rep. 193. In this last case it was established at law that a gist or devise to the sole and separate use of a feme sole, independent of the control and debts of a future husband was valid, but the feme sole might by a marriage settlement, in consideration of marriage, convey the estate to her husband. Being for her benefit she might waive it.

ry

that the trustee should be a stranger. The husband himself may be the trustee; and if property be settled to a married woman's separate use, and no trustee be appointed, the court of chancery will protect her interest therein against the creditors of the husband, and the husband

may

be considered as such trustee notwithstanding he was not a party to the instrument *163 under which the wife claims. Where the hus

· Bennet y. Davis, 2 P. Wms. 316. Moore v. Freeman, Bunb. 205. Hamilton v. Bishop, 8 Yerger, 33. Abbott, Ch. J., 2 Carr. f Payne, 62. Newland v. Paynter, 4 My. f. Cr. Rep. 408. Picquet v. Swan, 4 Mason's Rep. 455. Escheater v. Smith, 4 M'Cord's Rep. 452. Clancy on the Rights of Married Women, p. 15–30. Carroll v. Lee, 3 Gill & Johns. 504. Wallingsford v. Allen, 10 Peters' U.S. Rep. 583. Harkins v. Coalter, 2 Porter's Alam. Rep. 463. M'Kennan v. Phillips, 6 Wharton, 576. Trenton Banking Company v. Woodruff, 1 Green's N. J. Ch. Rep. 117. Shirley v. Shirley, 9 Paige's Rep. 363. Griffith v. Griffith, 5 B. Monroe, 115. The intention to create a trust estate for the wife must distinctly appear. Clancy, 262. 268. In Griffith v. Griffith it was held that any words in giving personal estate to the wife, showing an intention to secure a use to the wife separately, would suffice, and that no particular form of expression was necessary-for her own proper use is sufficient. The wife may give or lend the income of her separate estate, if at her disposal, to her husband or to any other person, and he will be accountable for it. Towers v. Hagner, 3 Wharton's Penn. Rep. 48. Where a testator directed a share of the proceeds of his estate to be paid into the hands of his daughter, for her own use and benefit, and there was no intervention of trustees, and the gift was absolute, it was held, in that case, not to be a gift to her separate use; and the authority of the case of Hartley v. Hurle, 5 Vesey, 590, was shaken. Tyler v. Lake, 4 Simons' Rep. 1144. In Faulkner v. Faulkner, 3 Leigh's Rep. 255, it was also decided that at law a marriage settlement without the intervention of a trustee, would not avail to secure the property to the wife, as against the husband. So, in Simpson v. Simpson, 4 Dana's K. Rep. 141, it was held, that though a valid agreement for a separation between husband and wife, and for a separate allowance for her support, might be made through the medium of a third party as a trustee for the wife, and by whom the contract may be enforced; yet that where there was no third party, no suit could be maintained either at law or in equity, on such a contract. The court thought the judiciary had no power to move one step in advance of the legislation and uniform judicial precedents on the subject. But if before marriage and in contemplation of marriage, the husband conveys directly to his in

band stipulates, before marriage, either that his wife shall enjoy her own property, or that she shall be entitled to a certain benefit out of his estate, he will be bound in equity to perform his agreement, even though it was entered into with the wife herself, and became suspended at law by his subsequent marriage.a Gifts from the husband to the wife may be supported, as her separate property, if they be not predjudicial to creditors, even without the intervention of trustees ;b and where the husband

tended wise, without the intervention of a trustee, personal property, and she marries and dies without issue of the marriage, it was held that the property descended to her heirs, and that the marital rights of the husband did not attach. Allen v. Rumph, 2 Hill's S. C. Ch. Rep. 1. In Price y. Bigham, 7 Harr. f. Johns. 296, where real estate was, after marriage, conveyed in trust for the separate use of the wife, with power to her to sell by deed, she was allowed to charge the estate with the payment of her debts, and equity enforced the contract by decreeing a sale of the estate. So a feme covert, having a separate estate and living apart from her husband, may charge it by her general engagements or verbal promise without any particular reference to that estate, as well as by a written instrument; and the creditor may reach it through a suit instituted in equity against her and her trustees. Murray v. Bailee, 3 Mylne | Keene, 209. 4 Simons' 82. She may charge her separate maintenance by accepting a bill of exchange. It amounts to a power of appointment pro tanto of her separate estate, but the vice-chancellor said that the court could not subject her separate property to general demands. Stuart v. Kirkwall, 3 Madd. 200, Am. ed. The cases on this point are contradictory. The court of chancery never provides for the children, living the wife, out of her separate property. She is not bound to provide for the children, or her husband, out of the property settled to her separate use. The husband is left to maintain her and the children. In the case of Anne Walker, Cases tem. Sugden by Lloyd of Goold, p. 299.328.332.

a It is to be considered as well settled, say the court in Stilley v. Folger, 14 Ohio Rep. c. 49, that almost any bona fide and reasonable agreement, made before marriage, to secure the wife either in the enjoyment of her own property, or a portion of that of her husband, whether during coverture or after his death, will be carried into execution in chancery.

b Case of the Countess Cowper, before Sir Joseph Jekyll, cited in 1 Atk. Rep. 271. 3 Ibid. 293. Slanning v. Style, 3 P. Wms. 334. More v.. Freeman, Bunb. Rep. 205. Lucas v. Lucas, 1 Atk. Rep. 270. 3 Ibid. 393. Brinkman v. Brinkman, cited in 3 Atk. Rep. 394. Rich v. Cockell, 9 Vesey, 369. Walter v. Hodge, 2 Swanston, 97. S. C. 1 Wilson's Ch.

after marriage, agreed, in writing, to settle part of the wife's property upon her, the agreement was held to enure to the benefit of the children, and that the wife herself could not waive it a

Rep. 445. Neufville v. Thompson, 3 Eduardo N. Y. C. Rep. 02. Tay lor, Ch.J., in Liles v. Fleming, 1 Deo. Eq. Cases, 187. The English statute of 3 and 4 William IV. has now given sanction to this doctrine, and the husband is allowed to make a conveyance to his wife without the intervention of a trustee. In Malony v. Kennedy, 10 Simon, 254, it was held that where there are dividends on property settled to the separate use of the wife, and she makes no disposition of them by will, they pass by law to the husband in his marital right. The money must remain in the hands of trustees to protect it from the husband.

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

Fenner v. Taylor, 1 Simons' Rep. 169. In South Carolina, all mar. riage settlements, antenuptial or postnuptial, are required, by statute of 1823, to be recorded within three months after their execution ; and any Bettlement of property by the husband on the wiso after marriage, is a postnuptial settlement within the rule. In default of such record, the marriage settlement is declared void. Marriage settlements, strictly speaking, are those settlements only, whether made before or after marriage, wbich are made in consideration of marriage only; but the statute in South Carolina was intended to apply to all postnuptial settlements on the wife. Price v. White and others, Carolina Law Journal, No. 3. See, also, in the same work, p. 352, an essay on the registry acts of South Carolina, pointing out their imperfections, and suggesting amendments. The act of South Carolina, of 1792, required all marriage contracts and settlements to specify, either in the instrument or in a schedule annexed, the property intended to be settled, and in default thereof the settlement is void as to creditors and purchasers. In Virginia, deeds of settlement upon marriage, wherein either lands, slaves, or personal property shall be settled, or covenanted to be left or paid at the death of the party, or otherwise, shall be void as to creditors and subsequent purchasers for valuable consideration without notice, unless acknowledged or proved and recorded, &c. 1 Revised Code, ch. 99. sec. 4. If not recorded, they are void only as against the creditors of the wife. Laud v. Jeffries, 5 Rand. Rep. 211. Turner v Pierce, 5 Cranch, 154. VOL. II.

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