not appoint by deed; and if by deed, she cannot dispose of the property by a parol gift or contract. (a) 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)

(a) The Methodist Episcopal Church v. Jaques, 1 Johns. Ch. Rep. 450. 3 Ibid. 77. Lancaster v. Dolan, 1 Rawle's Rep. 231, 248. Thomas v. 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 & Keen, 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 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. Massey v. Parker, 2 Mylne & Keen, 174.1 It was also held, in Barton v. Briscoe, Jacobs's Rep. 603, and in Benson v. Benson, 6 Simons's 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 same by anticipation, was valid and binding, in respect to a future

1 It is held in Fears v. Brooks, 12 Geo. 195, that the creation of a separate estate in a feme sole, though no marriage be in contemplation, will operate upon her subsequent marriage to exclude the husband's marital rights.

In the case of Jaques v. The Methodist Episcopal Church, as reviewed in the Court of Errors of New York, (a) it was de

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's Rep. 663. 2 Russell & Mylne, 210. 1 Coop. Sel. Ca. temp. Brougham, 70, S. C.; and so did Sir John Leach, in Acton v. White, 1 Simons's & 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 footing with a male, and equally with him may exercise all the rights of ownership, notwithstanding a clause against anticipation and against marital interference. The 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. Starr, 3 Wharton, 62. Hamersley 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's Rep. 121. But see contra, post, p. 170, note.1 In Newton v. Reid, 4 Simons's Rep. 141, the vice-chancellor, Sir L. Shadwell went further, and held, that though the annuity be given by will, in trust for a daughter for life, 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,) 4 Myl. & Cr. 375, disclaimed being bound by the decision in Massey v. Parker, and he said he had difficulties in supporting it. He said further, that Newton v. Reid went beyond what any 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 to 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 Iredell's N. C. Eq. 307. See the 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. 49.2

(a) 17 Johns. Rep. 548.

1 Where a husband settled property to the separate use of his wife, free from the control of her husband, with the power of absolute disposition by deed or will, it was held, that the settlement operated to exclude the rights of a second husband. Cole v. O'Neill, 8 Md. Ch. 174. See Robert v. West, 15 Georg. 122.

2 In 1838, in the case of Tullett v. Armstrong, 1 Beavan R. 1, 32, the master of the rolls,

clared, 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 preclude the wife from adopting any other mode * of dispo- *166 sition, 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 of it be free, and not the result of flattery, force, or improper treatment.

This decision of the court of errors renders the wife more completely and absolutely a feme sole, in respect to her separate property, than the English decisions would seem to authorize; and it unfortunately withdraws from the wife those checks that

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.

Lord Langdale, reviewed the contradictory cases, and arrived at the following conclusions,

viz:

1. If the gift be made to a woman for her sole and separate use, without more, she has, during coverture, an alienable estate, independent of her husband.

2. If the gift be made to her sole and separate use without power to alienate, she has, during the coverture, the present enjoyment of an unalienable estate.

In either case she has, while discovert, the power of alienation; the restraint is annexed to the separate estate only, and the separate estate has its existence only during coverture. In Baggett v. Meux, 1 Phillips, 627, the lord chancellor considered the case of Tullett . Armstrong as settling the doctrine of the court.

See, also, in re Gaffee, 19 Law Journ. (English,) Chy, before Lord Cottenham, 1850, where it is held, that the power to alienate exists only while the woman is discovert, and that on her second marriage the restriction on alienation revived.

were intended to preserve her more entirely from that secret and insensible, but powerful marital influence, which might be exerted unduly, and yet in a manner to baffle all inquiry and detection. (a)

A wife may also contract with her husband, even by parol, after marriage, for a transfer of property from him to her, or to trustees for her, provided it be for a bona fide and valuable consideration; and she may have that property limited to her separate use. (b) This was so held in the case of Livingston v. Livingston, (c) and as the wife died, in that case, after the con

(a) In Morgan v. Elam, 4 Yerger's Tenn. Rep. 375, the points discussed in Jaques v. The Methodist Episcopal Church, were examined by counsel and by the court with great research and ability, and the decision was favorable to the doctrine as declared in the Court of Chancery in New York, in the above case. It was held, that the power of a married woman over her separate estate did not extend beyond the plain meaning of the deed creating the estate, and that she was to be considered a feme sole in relation to the estate, only so far as the deed had expressly conferred on her the power of acting as a feme sole; and that when a particular mode was pointed out for the disposition of the separate estate of a married woman, she could not dispose of it in any other way. The same principle is recognized and established in Ewing v. Smith, 3 Desaus. S. C. Rep. 417, in Lancaster v. Dolan, 1 Rawle's Rep. 231, and in Thomas v. Folwell, 2 Wharton, 11. In Whitaker v. Blair, in the Court of Appeals in Kentucky, 3 J. J. Marshall, 236, the decision in the case of Jaques, in Chancery, was considered as carrying the greater force of reason and principle with

it;

but the court held, in Johnson v. Yates, 9 Dana, 500, and in Shipp v. Bowmar, 5 B. Monroe, 163, that a feme covert, to whose separate use lands have been conveyed to trustees, might, with her husband, and on her private examination, and by deed duly recorded, convey all her interest therein, without any power for that purpose, though I apprehend not against restrictive words. We may perhaps venture to consider the doctrine in Jaques v. The Methodist Episcopal Church, declared in the Court of Chancery of New York, as the better doctrine.'

(b) Lady Arundell v. Phipps, 10 Vesey, 139, 145. Bullard v. Briggs, 7 Pick. Rep. 533. Garlick v. Strong, 3 Paige's Rep. 440. But as against creditors existing at the time, post-nuptial agreements will not be permitted to stand beyond the value of the consideration. Ibid.

(c) 2 Johns. Ch. Rep. 537.

1 This doctrine is approved in Maryland. Miller v. Williamson, 5 Maryl. 219. Tarr v. Williams, 4 Maryl. Ch. 68. Williams v. Donaldson, id. 414. In Tennessee; Marshall v. Stephens, 8 Humph. 159. Litton v. Baldwin, id. 209. In South Carolina; Nix v. Bradley, 6 Rich. Eq. 53. Adams v. Mackey, id. 75. In Georgia; Wylly v. Collins, 9 Geo. 223. In Mississippi; Doty v. Mitchell, 9 Sm. & M. 435. And in Rhode Island; Metcalf v. Cook, 2 R. I. 355. But see contra in Connecticut; Imlay v. Huntington, 20 Conn. 146, 175. In Alabama; Bradford v. Greenway, 17 Ala. 797. In North Carolina; Harris v. Harris, 7 Ired. Eq. 111. And in Virginia; Hume v. Hord, 5 Gratt. 374. As to the power of married women in New York, over their separate estates, under the Revised Statutes, see ante, 156 n. (1) and post, p. 767, note a.

tract had been executed on the part of the husband, and before it had been executed on the part of the wife, the infant children of the wife were directed to convey, as infant trustees, by their guardian, the lands which their mother, by agreement with her husband, had contracted to sell.

A wife may, also, sell or mortgage her separate property for her husband's debts, and she may create a *167 valid power in the mortgage to sell in default of payment. (a) She can convey upon condition, and she may prescribe the terms. (b) It was long since held, even at law, in the case of Wotton v. Hele, (c) that the husband and wife might grant land belonging to the wife, by fine, with covenant of warranty, and that if the grantee should be evicted by a paramount title, covenant would lie after the husband's death, against the wife upon the warranty. This is a very strong case to show that the wife may deal with her land by fine as if she were a feme sole; and what she can do by fine in England, she may do here by any legal form of conveyance, provided she execute under a due examination.2 The case states that the court of K. B. did not make any scruple in maintaining that the action of covenant was good against the wife on her warranty contained in her executed fine, though she was a feme covert when she entered into the warranty. It is also declared in the old books, (d) that if the husband and wife make a lease

(a) The general rule is, that if the wife joins her husband in a mortgage of her estate for his benefit, the mortgage, as between the husband and wife, will be considered the debt of the husband, and after his death the wife, or her representatives, will be entitled to stand in the place of the mortgagee, and have the mortgage satisfied out of the husband's assets. Lord Thurlow, in Clinton v. Hooper, 1 Vesey, jun. 186. (b) Demarest v. Wynkoop, 3 Johns. Ch. Rep. 129. Pybus v. Smith, 1 Vesey, jun. 189. Essex v. Atkins, 14 ibid. 542.

(c) 2 Saund. Rep. 177. 1 Mod. Rep. 290, S. C.

(d) Greenwood v. Tyber, Cro. Jac. 563, 564. 1 Mod. Rep. 291.

1 Vartie v. Underwood, 18 Barb. 561. So she may covenant that scire facias may issue upon default of payment. Black v. Galway, 24 Penn. 18. And see Wilson v. McCullough, 19 Penn. 77. Miner v. Graham, 24 Penn. 491.

2 Where the trustees of a marriage settlement were required to pay money to the hus band, taking his bond as security, upon the order of the wife, it was held, that after the husband became insolvent, the trustees were justified in refusing such payment. Boss v. Godsall, 1 You. & Call. Ch. Cas. 617.