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Kimm v. Weippert.

The doctrine was severely characterized by Chancellor KENT in The M. E. Church v. Jacques, 3 Johns. Ch. 77. In his admirable criticism of the English cases, where, speaking among others of the authorities above referred to, he says: "It is difficult to perceive upon what reasoning or doctrine the bond or parol promise of a feme covert could for a moment be deemed valid. She is incapable of contracting, according to the common right mentioned by Lord MACCLESFIELD; and if investing her with separate property gives her the capacity of a feme sole, it is only when she is directly dealing with that very property. The cases do not pretend to give her any of the rights of a feme sole in any other view, or for any other purpose." But though, as above intimated, Lord THURLOW followed the cases before cited, he seems to have been dissatisfied with the reasoning on which they were based; and in Hulme v. Tenant, 1 Bro. C. C. 16, which is regarded as the leading case on the subject, where the separate estate of a wife was held liable for the payment of her bond given for money borrowed, part of which had been borrowed by her husband and the residue by herself, he uses this language: "I take it, therefore, it is impossible to say but that a feme covert is competent to act as a feme sole with respect to her separate property when settled to her separate use; but the question here goes a little beyond that. It is not only how far she may act on her separate property; I have no doubt about that; but the question is, how far her general personal engagements shall be executed out of her separate property." Although he clearly pointed out the distinction as to the liability of the separate estate, he yielded to the previous cases, and held the estate chargeable. He further adds: "I have no doubt about this principle, that if a court of equity says a feme covert may have a separate estate, the court will bind her to the whole extent as to making the estate liable to her own engagements, as, for instance, for payment of debts," etc.

Lord ELDON repeatedly expressed his disapprobation of the decis ion in Hulme v. Tenant, but, according to his accustomed habit of always doubting but never overturning judgments, he followed the rule therein laid down. But afterward, in the case of Bolton v. Williams, 2 Ves. 138, Lord Chancellor LOUGHBOROUGH rejected the reasoning of Thurlow as unsound, and denied the liability of a married woman's separate estate for her general parol engagements, and explained the previous cases upon the ground that the securities which the wife had executed operated as appointments of her sepa

Kimm v. Weippert.

rate property; that is, as appropriations or ledges of such property for the payment of the debt for which the security was given. This new doctrine, that a written security was an appointment, rested on no substantial foundation, and was plainly erroneous, and proceeded upon the assumption that the wife's separate estate was not liable for general engagements, but only such as were specifically charged upon it, and yet held that it was liable for a bond or note which in no manner referred to it. This theory, that written security was an appointment and a charge, while it was otherwise with a mere parol promise, was maintained unchanged from the time of its introduction by Lord LOUGHBOROUGH, in Bolton v. Williams, until the case of Murray v. Barlee, 3 M. & K. 209, when Lord BROUGHAM rejected the distinction between a written security and a promise by parol, and extended the rule so as to make the parol engagement of the wife a charge as well as her bond or note.

"In all these cases," says the lord chancellor, at page 223, "I take the foundation of the doctrine to be this: the wife has a separate estate, subject to her own control and exempt from all other interference or authority. If she cannot affect it, no one can; and the very object of the settlement which vests it in her exclusively is to enable her to deal with it as if she were discovert. The power to affect it being unquestionable, the only doubt that can arise is whether or not she has validly incumbered it. At first the court seems to have supposed that nothing could touch it but some real charge, as a mortgage or an instrument amounting to an execution of a power, where that view was supported by the nature of a settlement, but afterward was more guarded, and the court only required to be satisfied that she intended to deal with her separate property. When she appeared to have done so, the court held her to have charged it, and made the trustees answer the demand thus created against it. A good deal of the nicety that attends the doctrine of powers thus came to be imported into the consideration of the subject. If the wife did any act, directly charging the separate estate, no doubt could exist; just as an instrument, expressed to be in execution of a power, was always, of course, considered as made in execution of it. But so, if by any reference to the estate, it could be gathered that such was her intent, the same conclusion followed. Thus, if she only executed a bond, or made a note, or accepted a bill, because those acts would have been nugatory if done by a feme covert without any reference to her sepa

Kimm v. Weippert.

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rate estate, it was held, in the cases I have above cited, that she must be intended to have designed a charge on that estate, since, in no other way, could the instrument thus made by her have any validity or operation; in the same manner as an instrument, which can mean nothing if it means not to execute a power, has been held to be made in execution of that power, though no direct reference is made to the power. Such is the principle. * But doubts have been, in one or two instances, expressed, as to the effect of any dealing whereby a general engagement only is raised; that is, where she becomes indebted without executing any written instrument at all. I own I can perceive no reason for drawing any such distinction. If, in respect of her separate estate, the wife is in equity taken as a feme sole, and can charge it by instruments absolutely void at law, can there be any reason for holding that her liability, or, more properly, her power of affecting the separate estate, shall only be exercised by a written instrument? Are we entitled to invent a rule, to add a new chapter to the statute of frauds, and to require writing where the act requires none? Is there any equity reaching written dealings with the property, which extends not also to dealings in other ways, as by sale and delivery of goods? Shall necessary supplies for her maintenance not touch the estate, and yet money furnished to squander away at play be a charge on it, if fortified by a scrap of writing? No such distinction can be taken upon any conceivable principle." But the reasoning of Lord BROUGHAM, in Murray v. Barlee, has been since overthrown, and it constitutes no longer the doctrine of the English courts. In the case of Owens v. Dickinson, 1 Craig & Ph. 58, Lord Chancellor COTTENHAM combated the assumption, that, because a married woman has executed a bond or note, or contracted a deot in any other form, therefore she must have intended to charge such debt upon her separate estate. He shows that, if the doctrine is sound, then every debt must become a specific lien upon the separate estate, to be paid in the order of its priority, while Lord BROUGHAM held that such debts are all to be paid pari passu. He then proceeds to prove that a contract which is entirely silent as to the separate estate, and makes no reference to its existence, cannot, by any legal reasoning, be shown to have been intended as a disposition of such estate. He says: "It would have been operative upon the feme covert's separate estate, but not by way of the execution of a power, although that has been an expression sometimes used, and, as I apprehend, very inaccurately

Kimm v. Weippert.

used, in cases where the court has enforced the contracts of married women against their separate estates. It cannot be an execution of the power, because it neither refers to the power nor to the subject-matter of the power; nor, indeed, in any of the cases has there been any power existing at all. Besides, it was argued in Murray v. Barlee, if a married woman enters into several engagements of this sort, and all the parties come to have satisfaction out of her separate estate, they are paid pari passu; whereas, if the instruments took effect as appointments under a power, they would rank according to the priorities of their dates. It is quite clear, therefore, that there is nothing in such a transaction which has any resemblance to the execution of a power. What it is, it is not easy to define. It has sometimes been treated as a disposing of the parricular estate, but the contract is silent as to the separate estate; for a promissory note is merely a contract to pay, not saying out of what it is to be paid or by what means it is to be paid; and it is not correct, according to legal principles, to say that a contract to pay is to be construed into a contract to pay out of a particular property so as to constitute a lien upon that property. Equity lays hold of the separate property, but not by virtue of any thing expressed in the contract; and it is not very consistent with correct principles to add to the contract that which the party has not thought fit to introduce into it.”

The view taken of the matter by Lord THURLOW in Hulme v. Tenant is more correct. According to that view, the separate property of a married woman being a creature of equity, it follows that if she has a "power to deal with it, she has the other power incident to property in general, namely, the power of contracting debts to be paid out of it; and inasmuch as her creditors have not the means at law of compelling payment of those debts, a court of equity takes upon itself to give effect to them, not as personal liabilities, but by laying hold of the separate property as the only means by which they can be satisfied."

Lord COTTENHAM here does not go back to the doctrine of THURLow, but attempts to support the established rule by an entirely new process of reasoning. It will be thus seen, that, while the English chancellors have steadily adhered to the principle, hardly any two of them agreed upon any common ground by which it can be sup ported. The views of Lord COTTENHAM will prevail till some subse quent chancellor shall detect in them some fallacy, and what reason.

Kimm v. Weippert.

ing he will resort to in support of the cases it is impossible to foretell. It seems that a rule which has to be constantly upheld by inharmonious, floating and contradictory reasons cannot rest on any very fixed or satisfactory basis. The latitude of construction which the courts of England have maintained is calculated to elude and defeat the very object for vesting separate property in married women. In the majority of cases the property is given to her "to protect her weakness against her husband's power, and her maintenance against his dissipation." But if the mere fact of her signing a promissory note, not for her own benefit, is to be held as an appropriation or a ground for subjecting her estate to payment, the protection is an illusion. The supreme court in Massachusetts, after a very able discussion of the subject, came to the following conclusion: "And we think," the court says, "upon mature and full consideration, that the whole doctrine of the liability of her separate estate to discharge her general engagements rests upon grounds which are artificial, and which depend upon implications too subtle and refined. The true limitations upon the authority of a court of equity in relation to the subject are stated with great clearness and precision in the elaborate and well-reasoned opinions of the court of appeals in New York, in the case of Yale v. Dederer ; and our conclusion is. that when, by the contract, the debt is made expressly a charge upon the separate estate, or is expressly contracted upon its credit, or when the consideration goes to the benefit of such estate, or to enhance its value, then equity will decree that it shall be paid from such estate or its income to the extent to which the power of disposal of the married woman may go. But when she is a mere surety, or makes the contract for the accommodation of another, without consideration received by her, the contract being void at law, equity will not enforce it against her estate, unless an express instrument makes the debt a charge upon it." Willard v. Eastham, 15 Gray, 328, per HOAR, J. And it is the express doctrine of the best reasoned authorities that to render the separate estate of a married woman liable, the debt must be contracted either for the benefit of the separate estate or for her own benefit, upon the credit of the separate estate, or where in the instrument executed by her she makes a specific charge upon her estate. Jacques v. M. E. Church, 17 Johns. 548; Willard v. Eastham, supra; Gardner v. Gardner, 7 Paige, 112; 22 Wend. 528; Curtis v. Engel, 2 Sandf. Ch. 287; Dyett v. North American Coal Co., 20 Wend. 570;

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