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The wife being enabled in equity to act upon property in the hands of her trustees, she is treated in that court

as having interests and obligations distinct from *164 those of her husband. She may institute a suit,

by her next friend, and she may obtain an order to defend separately suits against her; and when compelled to sue her husband in equity, the court may order him to make her a reasonable allowance in money to carry on the suit.a

(2.) Her power under settlements.

The general grounds upon which equity allows a wife to institute a suit against her husband, are when any thing is given to her separate use, or her husband refuses to perform marriage articles, or articles for a separate maintenance; or where the wife, being deserted by her husband, hath acquired by her labour a separate property, of which he has plundered her. The acquisitions of the wife, in such a case, are her separate property, and she may dispose of them by will or otherwise,b It is the settled rule in equity, that a feme covert, in regard to her separate property, is considered a feme sole, and may, by her contracts, bind such separate estate. The power of appointment is incident to the power of enjoyment of her separate property. It is sufficient that there is an intention to charge her separate estate, and the contract of a debt by her during coverture, is a presumption of that intention; and the later decisions held her separate estate responsible without showing any promise.

Her contract amounts to an appointment. Though a wo

• Mix v. Mix, 1 Johns. Ch. Rep. 108. Denton v. Denton, ibid. 110. Wilson v. Wilson, 2 Haggard's Consist. Rep. 203. N. Y. Revised Statutes, vol. ii. p. 148. sec. 58.

• Cecil v. Juxon, 1 Atk. Rep. 278. Starrett v. Wynn, 17 Serg. f. Raule, 130.

• 2 Story's Eq. Juris. 628, 773. Gardner v. Gardner, 22 Wendell, 528. Mallory v. Vanderheyden, by Vice Ch. Baker of the 3d circuit. N. Y. Legal Observer, Jan. 7, 1846. The ground on which a creditor may proceed

can

man may be proceeded against in equity without her husband, and though her separate estate be liable for her debts dum sola, yet the court cannot make a personal decree against her for the payment of a debt. All do is to call forth her separate personal property in the hands of trustees, and to direct the application of it. When the wise has separate property, the relief afforded is by following it in the hands of trustees; and, in this way, courts of equity can attain a pure and perfect justice, which courts of law are unable to reach.

If, by marriage settlement, the real and personal estate of the wife be secured to her separate use, the husband is accountable for that part of it which comes to his hands; and a feme covert, with respect to her separate

against the separate estate of a married woman for a debt not charged upon her estate pursuant to a deed of settlement, must be by showing that the debt was contracted for the benefit of her separate estate or for her own benefit upon the credit of the separate estate. Curtis v. Engel, 2 Sandford's Ch. Rep. 287, 288.

• Hulme v. Tenant, 1 Bro. Rep. 16. Norton v. Turvill, 2 P. Wms. 144. Lillia v Airey, 1 Vesey, jun. 277. Lord Loughborough, 2 Vesey, jun. 145. Dowling v. Maguire, 1 Lloyd J. Goold's Rep. t. Plunkett, 19. Montgomery v. Eveleigh, 1 M Cord's Ch. R. 267. Maywood & Patterson v. Johnson, 1 Hill's Ch. R. 228. Vide post, 165, 166. Prater's Law of Husband and Wife, 109. North American Coal Co. v. Dyett, 7 Paige, 1. Gardner v. Gardner, ib. 112. If the wife has separate property, and lives apart from her husband, that property will be liable in equity to her contraets, though they do not specially refer to that property. Lord Kenyoni, in Marshall v. Rutton, 8 Term. Rep. 545. Murray v. Barlee, 4 Simons' Rep. 82. Gardner v. Gardner, ut sup. and S. C. 22 Wendell, 526. In Bullpin v. Clarke, 17 Vesey, 365, the master of the rolls decreed, that a debt by promissory note given by a wife for money loaned to her for her separate use, be paid by her trustees out of her separate estate. So iu Stuart v. Kirkwall, 3 Madd. Ch. Rep. 387, a similar decree was made on a bill against husband and wife, on her acceptance of a bill of exchange, the vice-chancellor considering the act as an appointment by her pro tanto of her separate estate. The courts of equity in South Carolina have so far departed from the English doctrine, that the wife cannot, by her own act merely, charge the separate estate ; but the court will look into the circumstances, and see that a proper case existed, even if the appropriation was by herself, for the necessary support of herself and family. The husband cannot do it. Maywood v. Johnston, 1 Hill's Ch. Rep. 236.

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property, is to be considered a feme sole sub modo *165 only, or to the extent of the power clearly given

her by the marriage settlement. Her power disposition is to be exercised according to the mode prescribed in the deed or will under which she becomes entitled to the property; and if she has a power

of

appointment by will, she cannot appoint by deed; and if by deed, she cannot dispose of the property by a parol gift or contract. These marriage settlements are benignly intended to secure to the wife a certain support in every event, and to guard her against being overwhelmed by the misfortunes, or unkindness, or vices of her husband. They usually proceed from the prudence and foresight of friends, or the warm and anxious affection of parents; and, if fairly made, they ought to be supported according to the true intent and meaning of the instrument by which they are created. A court of equity will carry the intention of these settlements into effect, and not permit the intention to be defeated. These general principles pervade the numerous and complicated cases on the subject; though, it must be admitted, that those cases are sometimes discordant in the application of their doctrines, and perplexingly subtle in their distinctions, b

Jaques v. The Methodist Episcopal Church, 1 Johns. Ch. Rep. 450. 3 Ibid. 77. Lancaster v. Dolan, 1 Rawle's Rep. 231, 248. Thomas F. Folwell, 2 Wharton, 11. But in Vizonneau v. Pegram, 2 Leigh, 183, the doctrine declared was, that a feme covert, as to property settled to her separate use, was a feme sole, and had a right to dispose of her separate personal estate, and the profits of her separate real estate, in the same manner as if she were a feme sole, unless her power of alienation be restrained by the instrument creating the separate estate.

b A gift of leasehold property was made to a daughter for her separate use, free from the control of any future husband, and she subsequently married without a settlement. She was held to be entitled, on a separation, to the leasehold property, for her separate use, and the marital right was excluded. Anderson v. Anderson, 2 Mylne g. Keene, 427. This was decided by Sir John Leach, and affirmed by Lord Eldon. But a new doctrine on this subject has been recently started in England, and it has

In the case of Jaques v. The Methodist Episcopal

been held that gifts to a feme sole, or to trustees in trust for a feme sole, to her separate use, free from the control of any future husband, and not to be subject to his debts or disposition, are, as to such restraints, illegal and void unless they be settlements made in immediate contemplation of marriage. A clause against anticipation annexed to such a gift, is equally inoperative. Massy v. Parker, 2 Mylne Keene, 174. It was also held, in Barton v. Briscoe, Jacob's Rep. 603, and in Benson v. Benson, 6 Simons' Rep. 126, that on a settlement in trust for the separate use of a married woman for life, the clause against anticipation became inoperative on the death of the husband, and no longer binding. And in Woodmeston v. Walker, 2 Russell & Mylne, 197, though the master of the rolls held that a gift of an annuity to a single woman, for her separate use, independent of any future husband, and with a restraint on the disposition of the samo by anticipation, was valid and binding, in respect to a future marriage ; yet Lord Ch. Brougham, on appeal, held, that the feme sole was entitled to the absolute disposal of the fund at once without any restraint. The object of these checks was only to exclude marital claims. He held the same doctrine in Brown v. Pocock, 5 Simons' Rep. 663. 2 Russell f Mylne, 210. 1 Coop. Sel. Ca. 70. S. C.; and so did Sir John Leach, in Acton v. White, I Simons I Stuart's Rep. 429. The principle declared by these cases in equity was, that unless the female to whom the gift be made, be married at the time the interest vests, and the coverture be continuing down to the moment when the alienation is attempted, a female of full age stands precisely on the same fooling with a male, and equally with him may exercise all the rights of ownership, notwithstanding a clause against antici. pation, and against marital interference. Tho trust fund is at her free disposal while she is sui juris, and a court of equity only gives effect to the restriction upon her marriage, and while remaining married, against marital claims. In any other view, the right of disposition is incident to property. Smith v. Star, 3 Wharton, 62. Hammersley v. Smith, 4 Wharton, 126. S. P. The trust estate created by will for the separate use of a married woman, not only ceases when she becomes a widow, but does not revive on her subsequent marriage, ib. Knight v. Knight, 6 Simons' Rep. 121. But see contra, post, p. 170, note. In Newton v. Reid, 4 Simons' Rep. 141, the vice-chancellor, Sir L. Shadwell, went further, and held, that thongh the annuity be given by will, in trust for a daughter for lise, not subject to the debts or control of any future husband, nor alienable by her, and intended for her support, and she marries, the restrictions were still void, and she and her husband might sell the annuity, and apply the proceeds to pay his debts, and for his use. This was carrying the new doctrine to an unreasonable extent, and it is not the law in this country. The lord chancellor, in Nedby v. Nedby, (1839,) disclaimed being bound by the decision in Massy v. Parker, and he said he had difficulties in supporting it. He said further that Newton v. Reid, went beyond what any

Church, as reviewed in the court of errors of New York, a it was declared, that a feme covert, with respect to her separate property, was to be regarded in a court of equity as a feme sole, and might dispose of it without the assent and concurrence of her trustee, unless she was specially restrained by the instrument under which she acquired her separate estate. But it was held, (and in that consisted the difference between the decision in chancery and the correction of it on appeal,) that though a particular mode of disposition was specifically pointed out in the

instrument or deed of settlement, it would not pre*166 clude the wife from adopting any other mode *of

disposition, unless she was, by the instrument, specially restrained in her power of disposition, to a particular mode. The wife was therefore, held at liberty, by that case, to dispose of her property as she pleased, though not in the mode prescribed, and to give it to her husband as well as to any other person, if her disposition

body had ever contended for. He was for preserving trusts created for the separate use of married women, and the rule seems to be established in equity that marriage does not per se merge the rights of property of the feme sole in those of her husband. A gift or devise to her separate use independent of her future husband will be sustained, but not so far as to restrain her from conveying by gift or devise her property in contemplation of marriage, to the future husband. The doctrine in this country is that the marital claims will be defeated, if the gift by will to the daughter be to her for her sole and separate use. 1 Ircdell's N. C. Eq. Cases, 307. See tho N. Y. Statute, Infra. p. 170, note. The latest English rule requires negative words excluding the marital right to render the payment of money into the proper hands of the wife for her own proper use, a trust for her separate use. Blacklow v. Laws, 2 Hare's Ch. R. 49.

The above cases will be found selected and reported in the Condensed English Chancery Reports, published at Philadelphia, by Grigg & Elliot, and which were originally edited by Mr. Peters, and are now by Mr. Ingraham. They are edited with skill and judgment, and contain all the English chancery cases in the late voluminous and oppressive English reports that are applicable here, and necessary to be known. They are, therefore, most valuable, and every way well deserving the patronage of the American bar.

. 17 Johns. Rep. 548.

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