trustee is named, the husband will be considered as a trustee;' especially if the gift be from him directly to the wife, for in this last case the gift could be supported in no other way.2 100. It may also be here observed that no particular form of words is necessary to create a trust for the benefit of a feme coverte. According to the modern English authorities, the most apt word to create such a trust is "separate;" which has a fixed and technical meaning, and which will, of itself, exclude the marital rights; whereas the same fixed and technical meaning is not attributable to "sole." Any form of expression, however, indicative of an intention to confer the beneficial enjoyment upon the wife, and to exclude the rights of the husband, will be enough. It would be almost impossible to give all the expressions which have been held to be sufficient; the following are instances: "for her sole and separate use ;"4" for her own use and benefit independent of any other person;" her husband "to have no control;" "for the use, maintenance, and support;" "solely for her own use;" "absolutely;" "her receipt to be a sufficient discharge." 66 1 Bennet v. Davis, 2 P. Wms. 316; Parker v. Brooke, 9 Ves. 583; Jamison v. Brady, 6 S. & R. 466; Vance v. Nogle, 20 P. F. Sm. 179; Barron v. Barron, 24 Vt. 375; Long v. White, 5 J. J. Marsh. 226; Trenton Banking Co. v. Woodruff, 1 Green, 117; Steele v. Steele, 1 Ired. Eq. 452; Freeman v. Freeman, 9 Missouri, 772; Hamilton v. Bishop, 8 Yerg. 33; Fears v. Brooks, 12 Georgia, 195; Whitten v Jenkins, 34 Id. 297; Hill on Trustees, 628 (4th Am. ed.); Perry on Trusts, & 647. 2 Steel v. Steel, 1 Ired. Eq. 452, 455; McKennan v. Phillips, 6 Wharton, 571. See, however, Wade v. Fisher, 9 Rich. Eq. 362, where the gift was not upheld. In Penna, Salt Co. v. Neel, 4 P. F. Sm. 17, such a conveyance was sustained in a common law action. See Gilbert v. Lewis, 1 De G. J. & Sm. 38; Lewis v. Matthews, L. R. 2 Eq. 177; Massey v. Bowen, L. R. 4 H. L. Cas. 4 Parker v. Brooke, 9 Vesey, 583; Archer v. Rorke, 7 Ir. Eq. 478. 5 Margetts v. Barringer, 7 Sim. 482. 6 Edwards v. Jones, 14 Weekly Rep. 815. 7 Good v. Harris, 2 Ired. Eq. 630. See, also, for the same or nearly identical expressions, Newman v. James, 12 Alab. 29; Warren v. Haley, 1 Sm. & Marsh. Ch. 647; Heathman v. Hall, 3 Ired. Eq. 414; Griffith v. Griffith, 5 B. Mon. 113. 8 Jamison v. Brady, 6 Serg. & Rawle, 466; Jarvis v. Prentice, 19 Conn. 273; Goodrum v. Goodrum, 8 Ired. Eq. 313; Cuthbert v. Wolfe, 19 Alab. 373; Stuart v. Kissam, 2 Barb. 494. Shewell v. Dwarris, Johns. 172; Brown v. Johnson, 17 Alab. 232. 10 Lee v. Prieaux, 3 Bro. Ch. 381; Stan. ton v. Hall, 2 R. & M. 180; Charles v. Coker, 2 S. Carolina, 122. On the other hand, the following have been considered as insufficient to raise a trust: "to her use;" "to her own use;" "to her heirs and assignees, for her or their own sole use;" "for her use and benefit." Whether a provision that the property "is not to be liable to her husband's debts," will be enough to create a separate trust, cannot perhaps be declared with certainty, as the authorities are not uniform.5 It is obviously impossible to lay down any authoritative rules by which all the decisions upon this subject can be reconciled. But the classification suggested in Nix v. Bradley seems to be highly satisfactory. It was there said that the expressions whereby a separate estate could be created might be grouped in three classes: 1st. Where the technical words "sole and separate use," or equivalent words, are used. 2d. Where the marital rights are expressly excluded. 3d. Where the wife is empowered to perform acts concerning the estate given to her, inconsistent with the disabilities of coverture. 101. It was said above, that the objects sought to be attained by the trusts now under consideration, were very nearly defeated by the construction which the English Court of Chancery placed upon the authority and powers of the feme over property so limited. This construction was that a feme coverte was, as to her sole and separate estate, to be regarded as a feme sole, and that therefore she had the same power of disposition over the estate, and was subject to the same liabilities in regard to it, as if she were unmarried. Her power of disposing of her estate was settled by many authorities. "The first case upon the subject," said Lord Thurlow, in Fettiplace v. Georges," "is a very old one in Tothill; that when a woman from her separate stock has saved a sum of money, she Jacobs v. Amyatt, 1 Mad. 376, n.; Torbert v. Twining, 1 Yeates, 432; Tenant v. Stoney, 1 Rich. Eq. 222. 2 Johnes v. Lockhart, 3 Bro. Ch. 383, n. Lewis v. Mathews, L. R. 2 Eq. 177; Rudisell v. Watson, 2 Dev. Eq. 430; Houston v. Embry, 1 Sneed, 480. See, also, Tylor v. Lake, 2 R. & M. 183. Fears v. Brooks, 12 Georgia, 198; Clevenstine's Appeal, 3 Harris (Pa.), 499. 6 Gillespie v. Burleson, 28 Alab. 551; Martin v. Bell, 9 Rich. Eq. 42; Young v. Young, 3 Jones Eq. 266. 66 Rich. Eq. 48. may dispose of it. I know there is a vast number of cases upon it; but I have always thought it settled that from the moment a woman takes personal property to her sole and separate use, from the same moment she has the sole and separate right to dispose of it." And this right may be exercised by a disposition inter vivos; or by will. This power of disposition was formerly supposed to apply only to personalty, and to a life interest in realty; but it is now held in England that the feme is entitled to dispose of the corpus of her real estate; and that too by will or by deed, not acknowledged according to the formalities of the statute.* 102. The same line of reasoning, which induced the English courts of equity to recognize the power of a married woman to alienate her separate estate, has also led to a recognition of the liability of this estate to the general engagements of the feme. The separate property of a married woman being a creature of equity, it follows, that, if she has the power to deal with it, she has the other power incident to property in general, viz., the power of contracting debts to be paid out of it; and equity will lay hold of the separate estate as the only means by which those debts can be satisfied. This liability was at first supposed to exist only when the feme had executed some obligation under seal ;6 but the courts have now reached the conclusion that the same liability exists in respect of a mere verbal engagement; and that when a married woman enters into an agreement, she allows the supposition to be made that she intends to perform the agreement out of her property, and that she creates a debt which may be recovered, not by reaching her but by reaching her property." When a man contracts debts, both his person and his property are by law liable to the payment of them. A court of equity, having created a separate estate, has enabled a married woman to contract debts in respect of it. Her person cannot be made liable, I Wagstaff v. Smith, 9 Vesey, 520. 2 Rich v. Cockell, 9 Vesey, 369. Taylor v. Meads, 34 L. J. Ch. 203; 11 Jur. N. S. 166. ▲ Id. 5 Hulme v. Tenant, 1 Lead. Cas. Eq. 394 (481, 4th Eng. ed.); Owens v. Dickinson, 1 Cr. & Ph. 48; Perkins v. Elliott, 8 C. E. Green, 529. 6 Hulme v. Tenant, 1 Bro. C. C. 16. 7 Picard v. Hine, L. R. 5 Chan. App. 274; Johnson v. Gallagher, 3 De G. F. & J. 494; Londou Bank of Australia v. Lempriere, 4 Priv. Coun. App. 572; Murray v. Barlee, 3 M. & K. 209; Matthewman's Case, L. R. 3 Eq. 781; Shuttock v. Shattock, L. R. 2 Eq. 182. either in law or in equity,' but in equity her property may. A court of equity gives execution, therefore, against the property, just as a court of law gives execution against the property of other debtors. These are the views expressed by Lord Justice Turner, in Johnson v. Gallagher, and must now be taken as the settled law of England upon the subject. It must be here observed that the courts have not yet gone to the length of holding that a mere general engagement of a married woman will in all cases affect her separate estate. The true view seems to be. that such an engagement will be binding if it appears that it was made with reference to, and upon the faith and credit of, her separate estate; but that whether it was so or not is a question to be judged of by the court under all the circumstances of the case. The fact that the feme is living separate from her husband, and is known not to be receiving maintenance from him, is considered evidence to show that the contract was made with reference to her separate estate. It was at one time supposed that the contract of a feme covert operated as an appointment of her separate estate; but this idea is now exploded; as it is manifest that to hold such a doctrine would lead to the conclusion that the debts were to be paid in the order of their creation, whereas they all stand on an equal footing, and are paid pari passu. 103. In the United States the decisions upon the power of a 1 It had been decided in Corbett v. Poelnitz, 1 T. R. 5, that an action at common law would lie when the wife has a separate maintenance and lives apart from her husband, and receives credit upon the possession of the estate; but this was subsequently overruled in Marshall v. Rutton, 8 T. R. 545. 2 3 De G. F. & J. 509. 3 See the opinions of the Lord Chancellor, Hatherley, and of Lord Justice, Sir G. M. Giffard, in Picard v. Hine, L. R. 5 Chan. App. 274. See, also, London Bank of Australia v. Lempriere, L. R. 4 Priv. C. App. 572. In Massachusetts, see Rogers v. Ward, 8 Allen, 389. 4 Picard v. Hine; Johnson v. Gallagher, ut sup.; Johnson v. Cummins, 1 C. E. Green, 97, and Harrison v. Stewart, 3 Id. 451. 5 Clark v. Miller, 2 Atk. 379; Murray v. Barlee, 4 Sim. 82, by Sir L. Shadwell, V. C. 6 Murray v. Barlee, 3 M. & K. 209, reversing the Vice Chancellor in 4 Sim. 82; Owens v. Dickinson, 1 Cr. & Ph. 48. The decision of Lord Eldon, in Nantes v. Corrock, 9 Ves. 189, that the stock of a feme covert was not bound by her engagements because it was not liable to execution, also shows that the liability is not by way of appointment, for, if it were, the circumstance that stock was a species of property not liable to execution would be entirely immaterial. feme covert over her separate estate, and its liability to her engagements, have not been uniform. The first departure from the English rule was in South Carolina, in the year 1811. In the case of Ewing v. Smith,' the Court of Appeals (overruling the decision of Chancellor Desaussure) held that a feme covert had no powers over her separate estate except those which had been given to her by the trust instrument, and that the powers conferred must be strictly pursued. The same rule was established in Pennsylvania, in the leading case of Lancaster v. Dolan,2 and was upheld and enforced in subsequent decisions. It was, indeed, held in that State, in Haines v. Ellis, that the law had been altered by the Married Woman's Act of 1848; but this decision, which was manifestly erroneous, was subsequently overruled. The South Carolina rule was also adopted in Rhode Island, Tennessee, Mississippi; Illinois and, formerly, in Maryland.10 4 On the other hand, the English rule has been followed in a number of the States. It was adopted in New York in Jaques v. The Methodist Church," overruling Chancellor Kent, who had decided the other way.12 Although more recent decisions have somewhat modified the doctrine.13 The English rule was also followed in New Jersey, Connecticut,15 Kentucky,16 Virginia, North Carolina,18 Alabama,19 Georgia,20 Missouri,21 and Maryland;22 and also in Vermont, to the extent at least that a married woman can charge the property for her own 13 Desaus. 417. 2 1 Rawle, 231. 3 Rogers v. Smith, 4 Barr, 93; Thomas v. Folwell, 2 Wharton 11. 4 12 Harris, 253. 5 Penna. Ins. Co. v. Foster, 11 Casey, 134; Wright v. Brown, 8 Wright, 224. Metcalf v. Cook, 2 R. I. 355. 7 Marshall v. Stephens, 8 Hump. 159. 8 Doty v. Mitchell, 9 Sm. & M. 435. 10 Miller v. Williamson, 5 Maryl. 219; 14 Trustees (4th Am. ed.) 657; and Perry on 11 17 Johns. R. 548. 12 3 J. C. R. 78. 13 See Yale v. Dederer, 18 N. Y. 265; 22 N. Y. 456. 14 Leacrayft v. Heddon, 3 Green Ch. 512; 17 Vizonneau v. Pegram, 2 Leigh, 183. |