refers to such money as the executors may find it necessary to borrow for the preservation of the estate. They are empowered to borrow money upon mortgage of the property to pay borrowed money. or to keep the property in good condition and repair. The will provides in the first section that all of the testator’s just debts and funeral expenses shall be paid by the executors, and, after the specific gift to his wife, he gives all the residue to the executors. He does not charge his debts, or any of them, upon his real property in exoneration or in relief of his personal estate. The power to mortgage is not given in connection with any provision for or any reference to the payment of his debts, but in connection with the sale of his real estate. In view of the fact that the executors may not be able to sell advantageously the real estate which he has empowered them to sell, and hence may be compelled, in order to keep it up, to expend money upon it, he authorizes them to borrow such money, if necessary, and secure the payment thereof by mortgage upon the property, or to secure the payment of the expenses of keeping the property in good condition and repair by such mortgage. The provision authorizes them to raise or secure the payment of such money by mortgage of the property, instead of taking it from the income of the estate, as otherwise they would have been bound to do. Combes v. Cadmus, 36 N. J. Eq. 382. It is the duty of the executors to sell that part of the real estate which they are empowered to sell, if they can do so advantageously, rather than to hold it, and make expenditures upon it which 'are to be paid for by money borrowed upon mortgage of it, or to mortgage it to pay the expenses of keeping it in good condition and repair. The power to mortgage is not a general one, but one which is to be exercised in a certain contingency,——that of the inability of the executors to sell the property to good advantage,—and then it is to be exercised only so far as necessary.

The interest upon such mortgages should be paid out of the income of the estate. The object in providing that the money may be raised upon mortgage is to relieve the income, for the time being, of the burden of large expenditures for repairs, etc., which otherwise it would have to bear. There is no evidence that the testator intended that the interest should be paid out of the corpus of the estate. The testator’s indebtedness for borrowed money is to be paid in the same way as his other debts. The executors should use their discretion as to selling that part of the real estate which they are empowered to sell. There is no absolute direction to convert the property into money, but merely authority to them to sell it if they see fit.

The gift of income, after the death of the widow, to the executors, to be used as they may choose to dispose of it; and the gift of the estate to them in the event of the son’s death before he is 30 years old, and after the death of the widow, to be disposed of as they may choose; and the gift of half of the corpus of the estate after the death of the widow, in case the son reaches the age of 30 years, to be disposed of as they may choose, —are all absolute gifts, to take effect in the respective contingencies mentioned.

The testator requests and empowers the survivor or survivors, in case of the death of any of the executors, to appoint other executors to fill any such places as may be thus made vacant by death, until the will shall have been wholly executed. The person or persons who may be thus appointed will not only take the place of the deceased executor or executors, so far as the duties of executorship are concerned, but will be clothed with the trust-estate in the place of his, her, or their predecessor or predecessors.

CONDON o. BARR.
(Supreme Court of New Jersey. November 13, 1886.)

1. HusBANn AND WIFE—MARRIED WOMEN—ACTION AGAINST—SEPARATE EsTATE. It is essential to recovery against a married woman, in an action at law, by force of the statute of 1862, that she be shown to have a separate estate chargeable in equity with the debt contracted by her.1 2. CONTRAOTs—CONsIDERATION—MORAL OBLIGATION. A mere moral obligation or duty is not sufficient consideration to support a subsequent express promise to pay. 3. SAME—CONsIDERATION ENFORCEABLE IN EQUITY. An obligation enforceable in equity will support an express promise to pay, and make it suable at law.

4. HusEANn AND WIFE—CONTRACT—RULE AT COMMON LAw.

At common law the promise of afeme covert could not be enforced against her, unless she had a separate estate. No personal decree could be made against her, but her contract operated as an appointment out of her separate estate.

5. SAME—No SEPARATE ESTATE—OBLIGATION NOT ENFOROEABLE IN EQUITY. Where the feme eooert has no separate estate, her contract does not create an obligation which is enforceable in equity, and therefore is not such a consideration as will support her express promise to pay, made after the death of her husband.

(Syllabus by the Court.)

On rule to show cause.
Opinion states the facts.

W. Strong &: Sons, for plaintiff.
A. V. Schenck, for defendant.

VAN SYcKEL, J. This suit was brought to recover money alleged to have been loaned by the plaintiff to the defendant during her coverture, between the years 1866 and 1870. To support his case the plaintiff produced evidence to show that the money was loaned to the defendant in the life-time of her husband, and that after his death the defendant promised to pay the plaintiff. Under the instructions of the trial court a. verdict was rendered for the plaintiff. The questions to be disposed of arise on an application for a new trial, and are—First, whether, under the act of March 24, 1862, a married woman who lives with and is supported by her husband, and who has not any separate estate of her own, nor any separate trade or business, is liable at law for money loaned or advanced to her during her coverture; second, whether, under the facts stated, any legal liability exists on the part of the defendant to pay the plaintiff.

The act of 1862 has been so repeatedly construed by this court that a brief reference to the cases will dispose of the first question.

In Eckert v. Reuter, 33 N. J. Law, 266, this court declared “that the act of 1862 should be strictly construed, and not held to endow the wife with any new power to contract. As a feme covert she could only contract, in reference to an equitable liability against her separate estate, for :such debts and claims as could be charged against it. This act merely recognizes that power; it does not extend it, and only gives a remedy in the courts of law for the collection Of such equitable debts or claims. Whenever her separate estate could be reached in the court Of Chancery for such debts or claims, a suit at law could be maintained therefor. .And, again: “The remedy given by the act is personal, and by a personal judgment; but that remedy_can be adopted only when the debt or claim would be equitably chargeable against any separate estate she may have had when her equitable liability was created.” This construction of the act of 1862 has been rigidly adhered to in every instance in which it has been since presented for adjudication.

In Vankirk v. Skillman, 34 N. J. Law, 109, the chief justice, in adverting to the case of Eckert v. Renter, says:

“The principle of that construction was this: that the act did not attempt to confer upon a feme covert any new power to contract; that the only instance known to the law in which afeme covert could, in her own right, bind herself by agreement, was where she had property of her own, with respect to which her agreements would be good in equity; and that consequently, if a feme covert, having no separate estate, did contract, such an act being wholly void, no debt or claim could thereby remain unsatisfied.”

To this interpretation and limitation of the act of 1862 this court has committed itself in all subsequent decisions. Lewis v. Perkins, 36 N. J. Law, 133; Wilson v. Herbert, 41 N. J. Law, 454; Mather v. Brokaw, 43 N. J. Law, 587; Heywood v. Shreve, 44 N. J. Law, 94; Morris v. Dindsley, 45 N. J. Law, 435; Bradley v. Johnson, Id. 487; Bradley v. Johnson, 46 N. J. Law, 271.

It is essential, therefore, to recovery in an action at law, by force of the statute of 1862, that the wife shall be shown to have a separate estate chargeable in equity with the debt contracted by her. The absence of that element in this case precludes the plaintiff from invoking the support of that statute. '

The question remains whether an action can be maintained upon the promise made by the defendant after the death of her husband. That a mere moral obligation or duty, as an executed consideration, is not a sufficient consideration to support a‘subsequent express promise to pay, is shown by Mr. Justice DEPUE in Freeman v. Robinson, 38 N. J. Law, 383, to be well settled in the adjudications in both England and in this country. The verdict, therefore, in this case, rests upon no stable foundation, unless some consideration can be found to Support the defendant’s promise which in legal aspect is of higher quality than a mere

moral obligation. In Rusling v. Rusling, 47 N. J. Law, 8, the chief justice says that an equitable obligation will support a promise to pay, and that, by force of such promise, what was before an equitable obligation is transformed into an obligation enforceable at law.

This discussion turns upon the question whether, prior to the express promise, a duty rested upon the defendant to pay the plaintiff’s claim which could have been enforced in a court of equity. In Pentz v. Simonson, 13 N. J. Eq. 232, Chancellor GREEN says that a married woman may incur liabilities which will be charged upon her separate estate, but that no doctrine of the common law is better settled than that a married woman can enter into no contract or covenant by which she will be personally bound. In equity a liability assumed by a married woman will be charged upon her separate estate, but she cannot, in the absence of statutory enactment, be made personally liable. Bradley v. Johnson. 46 N. J. Law, 271. The authorities are collected in Francis v. Wigzell, 1 Madd. 258. '

Lord COTTENHAM, in Aylett v. Ashton, 1 Mylne & C. 105, in commenting on Ftwncis v. Wigzell, says:

“It was there decided, and clearly in conformity with all previous decisions, that the court has no power against afeme covert in personam, but that, if she has separate property, the court has control over that separate property. In all cases, however, the court must proceed in rem, against the property. Afeme covert is not competent to enter into contract so as to give a personal remedy against her. Although she may become entitled to property for her separate use, she is no more capable of contracting than before. A personal contract would be within the incapacity under which she labors. Sir THOMAS PLUMER says: ‘ There is no case in which this court has made a personal decree against a feme cooert.’ ”

Mr. Justice STORY, in his Equity Jurisprudence, (volume 2, § 1399,) expresses the same view:

“She may charge her separate estate; her agreement, however, creating the charge, is not, it has been said, properly speaking, an obligatory contract,~—for, as a feme covert, she is incapable of contracting,—but is rather an appointment out of her separate estate.”

I think search will be made in vain to find in the history of equity jurisprudence a case in which a feme covert has been charged with an obligation unless it appeared that she had a separate estate. The immunity of the wife at common law did not rest upon the fact that her husband would be held for her contracts. The husband’s liability for the wife’s engagements, made without his authority, during coverture, was circumscribed within very narrow bounds. The disability of the wife to incur personal obligations was an incident of the marriage relation, supposed to be dictated by a wise public policy. The rule that her separate existence was merged, by coverture, in that of her husband, was relaxed in equity, and her separate existence recognized for the sole purpose of dealing with her separate estate. The power to charge her in a court of equity was co-extensive with and inseparable from the separate estate, and expired with its appropriation. An interesting and inltructive review of this doctrine will be found in Perkins v. Elliott, 23 N. J. Eq. 526. The legislation in force when the alleged loans were made to the defendant furnishes us reason in public policy for amplifying the scope of this equitable rule.

The defendant in this case being without a separate estate, there was, at the time of the new promise, no enforceable equitable obligation resting upon her, which could in law support such promise, and transmute an equitable into a legal obligation. The promise to pay was without valid consideration, and therefore nudum pact/um. Such is the view taken in the elaborate note to Wennall v. Adney, 3 Bos. & P. 247, in which the English cases are reviewed. It is there said that “an express promise, as it should seem, can only revive a precedent good consideration which might have been enforced at law through the medium of an implied promise had it not been suspended by some positive rule of law, but can give no original right of action if the obligation on which it is founded never could have been enforced at law, though not barred by any legal maxim or statute provision.” Under this rule a promise to pay a debt barred by the statute of limitations, a promise by a man after he becomes of age to pay a debt contracted during minority, a promise by a bankrupt after his certificate to pay his debts in full, and other like promises, may be enforced. But a promise by a feme covert is not merely voidable, but absolutely void at common law. Therefore, in Loyd v. Lee, 1 Strange, 94, the promise of the defendant, after her husband’s death, to pay a promissory note given by her during coverture, was held to be void.

Lee v. Muggem'dge, 5 Taunt. 36, is cited as a case holding the contrary rule; but in that case the married woman, when she executed the bond during coverture, had a separate estate, and thus incurred an obligation which equity would have enforced.

Dittlefield v. Shee, 2 Barn. & Ald. 811, and Meyer v. Hoth, 8 Adol. dz E. 467, are in line with Loyd v. Lee. The doctrine upon which these cases rest was adhered to by Lord DENMAN, C. J ., in Beaumont v. Reeve, 8 Q. B. 483, and was approved in this court in Freeman v. Robinson, before cited.

In New Hampshire it is well settled that the promise of a married woman, made when the common-law disability of coverture existed, does not furnish a consideration upon which her promise to pay the same debt, made after the death of her husband, can be sustained. In the recent New Hampshire case of Kent v. Rand, 5 Atl. Rep. 760, the authorities are collected. In my judgment, the rule to show cause should be made absolute.