Page images
PDF
EPUB

to the plaintiff, as should not be recovered from the estate of James Willis, (the bankrupt and principal in the bond,) the said Sarah Johnson having given a bond of indemnity to her husband.

So that from this decree it would appear that the Master of the Rolls had not only acted on the case of Hulme v. Tenant, notwithstanding the doubts of Lord Eldon respecting it, but had also overruled the case of Socket v. Wray.TM It may, however, be mate rial to observe, that there is this distinction between Heatly v. Thomas and Hulme v. Tenant, viz. that in the latter the question was, whether the amount of a bond executed by a married woman could be levied out of her separate estate during her life; while, in the former case, as well as in Norton v. Turvill," it was decided, that such property could be made liable to her contract after death, in the shape of assets, to which the creditor might be allowed to resort. And there is also this difference between Socket v. Wray and Heatly v. Thomas, that in the former, in default of appointment by will, the limitation was to the executors and administrators of Mrs. Socket; in the latter, it was according to the statute of distributions.

note of

married

cuted out of her separate es

woman ex

tate.

Bulpin v. Clark is a further support to Hulme v. Tenant. Amount of There, previous to the marriage of the defendants, John promissory and Margaret Clark, estates, to which Margaret was entitled under the will and settlement of her former husband, were conveyed to trustees, and their heirs in trust, after marriage, to receive the rents and profits, and to pay the same to such person or persons, for such uses, &c. &c. as Margaret should, at any time during her life, notwithstanding her coverture, direct or appoint; and, in default of appointment, to pay the same into the hands of Margaret for her sole use. And all the personal property was assigned to the sole use of Margaret, and to be applied as she should direct. The bill was filed against Clark and his wife, and her trustees, stating that she had borrowed 250l. from the

m 4 Br. C. C. 483.
n 2 P. Wms. 144.

o 17 Ves. 365.

Where

husband and wife contract

chase, the

vendor is

not enti

plaintiff, which she promised should be repaid out of her separate estate, and she gave him her promissory note for the amount, payable with interest. The note was admitted by the answer. And the question was, whether this note was an execution of her power? It was argued, that it could not be an execution of her power, as it had no reference to her separate property; and that a court of equity had no right to apply the rents and profits of the separate estate of a feme covert to the discharge of a debt. However, the decree directed the trustees to pay the amount of the note, with interest out of the rents and profits.

However, though the separate property of a married woman be liable to her general personal engagement, when it is expressed in writing, yet it seems that, where she has for a pur- contracted jointly with her husband for the purchase of an estate, the vendor seeking a specific performance of that tled to dis- contract, will not be entitled to a discovery, whether she covery of has a separate property or not.p In the case referred to, rate estate. there was no allegation in the bill that the wife had agreed to bind her separate property, or that she intended to bind it; there was a mere statement that she had separate moneys of larger amount than the purchase money, and an interrogatory pointed to the fact, whether she had such moneys or not. The wife demurred to so much of the bill

her sepa

tate, where

as sought this discovery, and the demurrer was allowed. Grant of In Power v. Bailey, Lord Manners held, that an annuity annuity a granted by a married woman was a specific lien on her specific lien on se- separate estate, although she had not expressly subjected parate es- that property to the payment of it; but it was on the ground, that the deed creating the annuity recited her power over her separate estate; his Lordship considering the covenant to pay as being within the principle of Legard v. Hodges, because it referred to her power over her separate estate, and was, therefore, an appropriation of it,

the deed

recites the

powers over the estate.

p Francis v. Wigzell, 1 Mad. Rep. 258.

q 1 Ball & Beatty, 49.
r 3 Br. C. C. 531.

and binding upon it. In Clerk v. Miller, where a married woman, having separate estate, employed workmen to work in her husband's house without his directions, and promised to pay them, the Master of the Rolls intimated, that, if the promise had been in writing, the separate property, which consisted of lands, would be subject to these creditors.

upon

estate of

woman not liable to

general enit is

when

not redu

ced into

However, it seems to be now settled, that the separate Separate estate of a married woman cannot be made liable to ge- married neral demands against her; that is, where her engagement is merely implied, and not reduced into writing. In Nantes v. Corrock, where it was attempted to affect the separate estate of a married woman without any lien it, but merely on the ground, that it was the produce of a writing. fraud alleged to have been committed by her upon the rights of the plaintiff, Lord Eldon dismissed the bill. His Lordship's difficulty, however, arose from the nature of the property, it being stock, against which execution. cannot be given in a court of equity, when there is no express lien upon it. But the Vice Chancellor, Sir John Leach, intimated a very clear opinion on this question, with respect to separate property of every description, in the case of Greatly v. Noble and Others," where he said, "If it were necessary now to decide the point, I think it would be difficult to find either principle or authority for reaching the separate estate of a feme covert, as if she were a feme sole, without any charge on her part, either express or to be implied." And in a case shortly subsequent," where the separate estate of a feme covert was sought to be rendered liable to her general engagements, the same Judge said, (alluding to Greatly v. Noble and Others,) that "he had expressed his opinion, that the separate estate of a feme covert was not liable to answer general demands upon her." In Gregory v Lockyer," the separate estate of a married woman was by the decree di

§ 2 Atk. 379.

t9 Ves. 182.

n3 Mad. Rep. 89.

v Stuart v. Lady Kirkwall, in a note to 3 Mad. Rep. 94.

w 6 Mad, 90.

rected to be applied in payment of her debts and funeral expenses. The husband, having actually paid them, claimed before the Master to have the money repaid by her executor. The Vice Chancellor made the order, considering himself as bound by the decree, but expressed a doubt, whether, generally, the husband has a right to throw the wife's funeral expenses upon her separate estate.

So that the present state of the law on this part of our subject seems to be this, that if a married woman, having separate property, executes a bond or a note, or any other instrument, by which she pledges herself for the payment of money, that property will be bound by her engagement, though the instrument which she has signed does not purport to be a lien upon that estate. But on the other hand, that if the demand against her arise merely, from an implied undertaking, there it cannot be executed out of such separate estate.

From this short review of the cases on the liability of a feme covert's separate property to her general engagements, it is obvious, that no clear result can be stated; for although Hulme v. Tenant, which decides, that such engagements, when express, do attach upon such property, instead of being directly overruled in any case, has, in some cases, been recognised and acted on; yet it has, at the same time, excited so much dissatisfaction, that it is extremely difficult to say what the determination may be when the question shall next come fairly before the Court. Pybus v. Smith, and Socket v. Wray," have shared pretty nearly the same fate, and present the same difficulty. Both have been shaken, (though neither has been overruled,) the first by Whistler v. Newman, the second by Heatly v. Thomas; and, therefore, a new consideration of all these cases, so often wished for by Lord Eldon, is rendered extremely desirable.

[blocks in formation]

347

CHAP. X.

OF

THE PERSONS WITH WHOM MARRIED WOMEN MAY DEAL WITH RESPECT TO THEIR SEPARATE ESTATE, AND OF THE ACCOUNT OF IT TO WHICH THEY ARE ENTITLED, AND AGAINST WHOM.

a feme

covert is

her sepa

with jea

THE rule that "a feme covert, acting with respect to her Rule that separate property, is in all respects competent to act as if co she were sole," has been applied to all her dealings on the sole as to subject of that property. She may give, or pledge, or sell rate proit, or make any other bargain with respect to it, with any perty, not applied in person, in the same manner as if she were an unmarried its full exwoman. However, the rule is not extended with all its tent to dealings force to transactions of such a nature between husband and between husband wife. These certainly are not the objects of positive prohi- and wife. bition; but then a court of equity always looks at them Equity with a more jealous and watchful eye than it would feel watches itself called on to do in ordinary cases, where each of the lousy the parties was sui juris; for although separate property renders a married woman a feme sole in a court of equity, still does not free her from the natural influence of her husband; and therefore the Court always views her dealings with him, even concerning her separate estate, with suspicion and scrutiny. Lord Hardwicke, speaking of this same rule, says, "And this will hold, though the act done by the wife is a transaction alone with the husband, although, in that case, a court of equity will have more jealousy over it; and therefore, if there is any proof that the husband had any impro. per influence over the wife, by ill, or even extraordinary good usage, to induce her to it, the Court might set it aside, but not without that." With such guards upon her, it has

dealings of it and wife, respecting

husband

a Peacock v. Monk, 2 Ves. sen. 190. b Grigby v. Cox, 1 Ves. sen. 518.

her sepa

rate pro perty.

« PreviousContinue »