The eighth section of the bill authorizes and empowers *Page 357 the trustee to sell and convey any part of the estate devised and bequeathed to him in trust, as aforesaid, the said Abigail Whipple joining in said conveyance in testimony of her assent to the same, the proceeds thereof to be by said trustee holden for the purposes and upon the trusts before mentioned.
The bill sets forth that on the 22d day of April, 1844, the plaintiff received a certain promissory note payable to him on demand, signed by one Amasa Whipple, the son of Abigail, and guaranteed by said Richard Carrique, in his capacity as trustee under said will, and by Abigail Whipple, the cestui que trust under said will, and paid the money therefor to said Amasa, who was the agent and tenant of the farm of said Abigail; that the said note has never been paid except certain payments of interest thereon, as set forth by endorsements upon the back of said note; that the said Carrique, trustee, and said Abigail, the cestuique trust, by their guaranties aforesaid appropriated the sum aforesaid to the payment of said note in default of the payment thereof by the said Amasa, out of the trust estate aforesaid; that the said Amasa hath not paid the same, though proceedings at law have been commenced against him for the purpose of collecting the same, and though he hath been repeatedly requested to pay the same. The bill prays that the respondents be directed to pay the plaintiff out of said trust estate the amount due upon said note and the guaranty thereof aforesaid, and for general relief.
To this bill the respondents demurred generally for want of equity. The respondents by their demurrer admit the truth of such allegations in the complainant's bill as are well pleaded. The right of the complainant therefore to the exercise of the equitable jurisdiction of this court must depend upon the allegations in said bill, the legal construction of the said will of Elisha Waterman, the trusts thereby created; and such rules of equity applicable to said trusts as may be deemed consistent with the established laws and policy of this State relative to the legal rights and liabilities of married women, and their power and control over their separate property and estate.
Such rights, liabilities, power and control, are well established and defined in this State, by positive statute, *Page 363 and by the rules of the common law. And a feme covert here, is not deemed in relation to her contracts, as in some cases in England, a feme sole. But her right and power to bind herself or her separate property must depend in each case, upon our statutes, the rules of the common law, or upon some legal instrument creating such right and power.
This guaranty of said promissory note by said Abigail Whipple, could not make her personally liable either at law or in equity, because she, being at the time a feme covert, had no power to give such guaranty.
In considering therefore the claim of the complainant upon the separate property and estate of said Abigail, this note standing alone cannot be deemed legal evidence to support this claim; but in order to sustain this claim, it must be shown that by the rules of equity she had power under the said will of her father and the trusts thereby created so to pledge her separate property.
The rules of the English chancery in regard to the power of afeme covert over her separate estate, as laid down in their former and later decisions, are very conflicting, as will be seen by reference to the cases cited at the argument of this cause. And these decisions being so conflicting and unsatisfactory, and opposed to the policy of our laws and institutions, we deem them an unsafe guide as precedent or authority for the decision of this case; and especially as these decisions are almost directly opposed to the decisions on this subject of the highest and most respectable judicial tribunals of several of our sister States, the policy of whose laws and the practice under them more nearly conform to our own.
For while by the English decisions it is held that a femecovert, in respect to her separate estate, is to be *Page 364 regarded as a feme sole, with all the powers which belong to that character, and that her note or bond or other obligation will bind her estate, the rule adopted in most of the American courts is, that a married woman has no power in relation to her estate, but such as has been expressly given to her, and that her note or bond will not charge her separate estate, except where a provision for that purpose is contained in the instrument creating the separate estate. 65 Law Library, 370.
The lead in departing from the English and establishing the American doctrine was taken by the Court of Appeals of South Carolina, in the case of Ewing v. Smith, in 1811; and has been since affirmed by repeated decisions; and was finally authoritatively settled by that court, in Reid v. Lamar, 1 Strobhart's Equity, 27, 37, in 1845, in which latter case, it was decided that an estate settled to the separate use of a femecovert, to beat her "full and free disposal," was yet not chargeable by a note given by her and her husband. And this court held it to be the settled law of that State, "that where property is given or settled to the separate use of a married woman, she has no power to charge, encumber or dispose of it, unless in so far as power to do so has been expressly conferred on her by the instrument creating her estate; which power must be strictly pursued."
This decision is in conflict with many English cases, in which it has been held that she is a feme sole, with respect to her separate property, and may charge or dispose of it as she pleases, unless in so far as she is expressly restricted by the instrument.
Chancellor Kent, in the case of the Episcopal Church v.Jaques, 3 Johnson's Chancery Rep. 78, after a careful review of the English authorities, in a clear and forcible *Page 365 argument, repudiates the English doctrine, and supports the doctrine of the South Carolina courts as the true rule in equity based upon wise policy and practical common sense.
This decision of Chancellor Kent, however, was overruled by the common law judges in the Court of Errors. But the wisdom of the Legislature of New York has corrected this last error by their revised statutes; and the decisions of the courts in that State under these statutes, have adopted the decision of Chancellor Kent, to a great extent, as the true rule in equity on this subject.
In Pennsylvania, Tennessee, Mississippi and Virginia, the rule of the South Carolina cases and the views of Chancellor Kent have been adopted. And, in the case of Williamson v. Beckham, 8 Leigh, 20, 27, it is said by Tucker, J., "I am of opinion that a feme covert, holding separate property in real estate by deed or will, prescribing a peculiar mode of disposition, cannot dispose of it in any other mode, although the deed or will does not negative such other mode expressly."
Another rule equally well established in law and equity should be applied in construing the said will of Elisha Waterman; that the intention of the testator should be the guide to govern in this construction.
Now let us apply these rules to the instrument in question as the proper test of the complainant's claim set up in his bill.
The testator does not give and devise directly to his said daughter, Abigail Whipple, the personal and real estate intended by him as a bounty to her; but gives and devises it to Richard Carrique in trust, for said trustee "to take possession of and manage; and, also, to collect and receive the rents and profits of said real estate, as *Page 366 well as the interest and income of said personal estate, and as often as once in every year to pay over to his said daughter, Abigail Whipple, all such rents, profits, interest and income to and for her sole, separate, exclusive use and benefit during the term of her natural life.'
The testator in said will empowers his said daughter to give, devise and bequeath said real and personal estate by her last will and testament with like legal effect as might be done by a sole and unmarried woman.
The testator also authorizes his said trustee to sell and convey any part of said trust estate, the said Abigail joining in the conveyance in token of her consent; but the said trustee is required by the will to invest the proceeds of such sale for the same purposes and trusts.
It is apparent therefore from the provisions of this will, that the said Abigail, during the life of her husband, could acquire or derive no beneficial interest from this trust estate, beyond the right to demand and receive the annual rents, income and profits thereof.
Nor could she exercise any legal or equitable control over said estate beyond her power to dispose of the same by her last will and testament, or to join with the trustee in the conveyance of the same for the purpose of executing the said trust agreeably to the intention of the testator.
The ostensible and expressed intention of the testator in creating this trust, was to put the trust property beyond "the control, management, disposition or intermeddling of the husband of said Abigail; and to exempt it, at all times, from all liabilities for his debts and from all attachments of his creditors."
We think it also fairly inferable from the will itself, that it was the intention of the testator, that this trust *Page 367 property should in no way be subjected to, or affected by the indiscretion, want of experience in business matters, or generous sympathies of his daughter; and that it should in no way be subject to her control, except as expressly provided in said will. The main object of his bounty was to secure to his said daughter a generous and sure support during the term of her natural life.
This being the condition of the cestui que trust, she had no right or power to anticipate the payment of, nor to mortgage or pledge the annual income and profits of said trust estate; nor could the trustee confer any such right or power by giving his assent, or by joining with said cestui que trust in any contract or conveyance relative to said trust estate. For such conduct, on the part of the trustee, would be clearly a breach of his trust, as it would thwart the intention of the testator.
It was contended by the solicitor of the complainant, that the right to sell, includes the right to pledge; and that it might be fairly inferred that the money obtained by this note was on account of the trust estate; or that the note might be deemed an investment by the trustee and cestui que trust to that amount.
But we apprehend that this point cannot be sustained. No express power is given in the will to raise money on account of, or for the use and benefit of the trust estate; but only power to sell any part of said estate, and to invest the proceeds of such sale for the same purposes and trusts.
But even if such power had been given, it may well be doubted whether the allegations in the bill are such that any fair and reasonable inference could be drawn from them to support this point. *Page 368
The allegation in the bill is, that the complainant paid the money for said note to the agent and tenant of the farm of said Abigail. If by tenant of the farm is meant the tenant of the trust estate, it is clear that said Abigail could legally have no such tenant.
We think, therefore, it would be too strained and unreasonable an inference from the allegations in the bill, to come to the conclusion that money on this note was procured for the benefit of said trust estate, or that said note was intended as an investment of property to the amount of four hundred dollars, on account of said trust.
The questions raised in this cause have been, for the first time, agitated under the equitable jurisdiction of this court; they are questions of great practical importance to the citizens of this State; for very large amounts of property in this State have been invested under similar trusts for the use of married women and minor children.
And we have endeavored to decide this case upon such principles of equity, as we deem most consistent with our laws and the policy of our institutions, and as will best carry out and protect such trust property, and most effectually secure the execution of such trusts.
For it is the imperative duty of this court scrupulously to guard and protect the rights and interests of married women and minor children. *Page 369