Same - In Equity

In equity a married woman may have property settled upon her to her separate use, in which case she may dispose of it in the same manner as if she were a feme sole. In the exercise of this right, she may charge it with the liability to satisfy contracts made by her; and an engagement or security entered into by her, showing an intent tion to charge her separate property, will have that effect.80 As

76 Co. Litt 132b; Hatchett v. Baddeley, 2 W. Bl. 1079, 1082; Carrol v. Blencow, 4 Esp. 27. Civil death arose formerly in England also from outlawry. As to other exceptions not material in this country, see Anson, Cont. (8th Ed.) 122; Pollock, Cont. (3d Ed.) SO. As to agreements of separation, see Tiffany, Pers. & Dom. Eel. 1G8. See "Husband and Wife," Dec. Dig. (Key-No.) §§ 65-67; Cent. Dig. §§ 2S5-289.

77 See ante, p. 184.

78 GREGORY v. PIERCE, 4 Metc. (Mass.) 478, Throckmorton Cas. Contracts, 159; Mead v. Hughes' Adm'r, 15 Ala. 141, 1 Am. Rep. 123; Krebs v. O'Grady, 23 Ala. 726, 58 Am. Dec. 312; Cheek v. Bellows, 17 Tex. 613, 07 Am. Dec. 686. See Rogers v. Phillips, 8 Ark. 366, 47 Am. Dec. 727. See Metc. Cont. 98 et seq. A married woman whose husband is an alien, and has never been in the United States, is liable on her contracts. Levi v. Marsha, 122 N. C. 565, 29 S. E. 832. See "Husband and Wife," Dec, Dig. (Key-No.) §§ 65-67; Cent. Dig. §§ 2S5-2S9.

79 GREGORY v. PIERCE, supra. See "Husband and Wife," Dec. Dig. (Key-No.) §§ 65-67; Cent. Dig. §§ 285-289.

80 See Hulme v. Tenant, 1 Brown, Ch. 16; Shattock v. Shattock, L. R. 2 Eq. 182; Jaques v. Methodist Church, 17 Johns. (N-. Y.) 549, 8 Am. Dec. 447; Martin v. Dwelly, 6 Wend. (N. Y.) 9, 21 Am. Dec. 245; Hollis v. Francois, 5 Tex. 195, 51 Am. Dec. 760; Bradford v. Greenway, 17 Ala. 797, 52 Am. Dec. 203; Dobbin v. Hubbard, 17 Ark. 189, 65 Am. Dec. 425; Rogers v. Ward, 8 Allen (Mass.) 387, 85 Am. Dec. 710; Smith v. Thompson, 2 MacArthur said in an English case: "Courts of equity have, through the medium of trusts, created for married women rights and interests in property, both real and personal, separate and independent of their husbands. To the extent of the rights and interests thus created a married woman has, in courts of equity, power to alienate, to contract, to enjoy. She is considered a feme sole in respect of property thus settled or secured to her separate use."81 It is presumed in general that a contract or engagement made by a married woman in writing imports an intention to charge her separate estate, otherwise the writing would have no meaning. If not in writing, it must be proved that the engagement was entered into with such an intention.82 Under this rule, bonds, bills of exchange, and promissory notes of a married woman are presumptively payable out of her separate estate.83 It is very generally held that, where a debt contracted by a married woman is for the benefit of her separate estate, it will be chargeable in equity for the payment thereof, without regard to her intention.84

There are some limitations on the power of a married woman in respect to her separate property which should be noticed. She cannot sue or be sued alone in respect of the separate estate. She does not acquire a sort of equitable status of capacity to contract debts in respect of her separate estate, without regard to when it is acquired. She can only bind such separate estate as is in her possession or control at the time the liabilities accrue. She cannot bind herself nor create liabilities in excess of her estate. Her creditor's remedy is not against her, but against her property.85

(D. C.) 291. 29 Am. Rep. 621; Priest v. Cone, 51 Vt. 495, 31 Am. Rep. 695; Willard v. Eastham, 15 Gray (Mass.) 328, 77 Am. Dec. 366; Johnson v. Cummins, 16 N. J. Eq. 97, 84 Am. Dec. 142; Burch v. Breckinridge, 16 B. Mon. (Ky.) 482, 63 Am. Dec. 553; Kantrowitz v. Prather, 31 Ind. 92, 99 Am. Dec. 587; Phillips v. Graves, 20 Ohio St. 371, 5 Am. Rep. 675; Baker v. Gregory, 28 Ala. 544, 65 Am. Dec. 366. See Tiffany, Pers. & Dom. Rel. 131 et seq. See "Husband and Wife," Dec. Dig. (Key-No.) § 152; Cent. Dig. §§ 596-602.

81 Johnson v. Gallagher, 3 De Gex, F. & J. 494. See "Husband and Wife," Dec. Dig. (Key-No.) § 152; Cent. Dig. §§ 596-602.

82 Leake, Cont 238; Kantrowitz v. Prather, 31 Ind. 92, 99 Am. Dec. 5S7; Burch v. Breckinridge, 16 B. Mon. (Ky.) 482, 63 Am. Dec. 553; Litton v. Baldwin, 8 Humph. (Tenn.) 209, 47 Am. Dec. 605; Johnson v. Cummins, 16 N. J. Eq. 97, 84 Am. Dec. 142. See "Husband and Wife," Dec. Dig. (Key-No.) § 16k; Cent. Dig. §§ 641-648.

83 Tullett v. Armstrong, 4 Beav. 319; Phillips v. Graves, 20 Ohio St. 371, 5 Am. Rep. 675; Burch v. Breckinridge, 16 B. Mon. (Ky.) 482, 63 Am. Dec. 553; Dobbin v. Hubbard, 17 Ark. 189, 65 Am. Dec. 425; Rogers v. Ward, 8 Allen (Mass.) 387, 85 Am. Dec. 710. See "Husband and Wife," Dec. Dig. (Key-No.) §§ 156, 164, 232; Cent. Dig. §§ 608-622, 641-648, 844.

84 Willard v. Eastham, 15 Gray (Mass.) 328, 77 Am. Dec. 366; Rogers v. Ward, 8 Allen (Mass.) 387, 85 Am. Dec. 710; James v. Mayrant, 4 Desaus. Eq. (S. C.) 591, 6 Am. Dec. 630; Yale v. Dederer, 22 N. Y. 450, 78 Am. Dec. 216; Johnson v. Cummins, 16 N. J. Eq. 97, 84 Am. Dec. 142; Dyett v. Coal Co., 20 Wend. (N. Y.) 570, 32 Am. Dec. 598; Dale v. Robinson, 51 Vt 20, 31 Am. Rep. 669; Patrick v. Littell, 36 Ohio St 79, 38 Am. Rep. 552; McCor-mick v. Holbrook, 22 Iowa, 487, 92 Am. Dec. 400. Liability for medical attendance and funeral expenses. McClellan v. Filson, 44 Ohio St. 184, 5 N. E. 861, 58 Am. Rep. 814. See "Husband and Wife," Dec. Dig. (Key-No.) § 162; Cent. Dig. §§ 322, 596, 600, 614, 637-640.

Same - Disability Removed By Statute

The common law has of late years been almost universally changed by statutes both in this country and in England. The statutes vary so much in the different states that it would be impracticable to attempt to state the law in detail. In general, however, it may be said that by the statutes married women have been given power to contract as if femes sole, subject to certain specified exceptions, such as contracts for the sale or conveyance of their real estate, or as surety for their husbands.