DISSENTING OPINION.
I am constrained to dissent as well from the view which the majority of the Court have taken of the law and the facts of this case, as from the judgment which has been rendered therein. The main point which has been so elaborately discussed in the opinion delivered by the Chief Justice, is not a new one. It engaged the attention of the English Court of Chancery at an early day; and there is no subject, perhaps, in the entire range of English jurisprudence which has been productive of more perplexing anxiety or painful solicitude. The very frequency of its occurrence in the English Courts, conclusively demonstrates the fact, that the judicial mind of that country has failed thus far,- to find a satisfactory foundation upon which to rest, and I have the authority of Chancellor Kent for saying, “that the English decisions, (on thi§ subject,) are so floating and contradictory, as to leave us the liberty of adopting the true principle of these settlements.” In this estimate of the English decisions, Chancellor Harper also concurs. In the case of Reid vs. Lamar, (1 Strob. Eq. R., *40539,) he took accasion to remark as follows: “I need not do that which has been done before by abler men, compare and collate the cases, (though I have examined many of-them,) with a view to show that they are uncertain and contradictory between themselves, many of them referable to no fixed principle, and a source of embarrassment and regret to the ablest Judges who have administered the English Chancery law.”
In the face of the scrutinizing examination which these two lights of American Ch. Ju., have given to the decisions of the English Courts, it would seem to be a work of supererogation, if not vanity, to attempt to tread the devious windings of that massy labyrinth, whence they have so recently emerged, with any expectation or even hope, of being able to make any further contribution to the cause of legal science. We may well be satisfied with the fidelity of their efforts, and content ourselves with the. fruit of their researches.
Notwithstanding, however, the fluctuation of the Enlish cases with respect to this subject, it must be admitted that the current of the decisions tends pretty conclusively to the establishment of the position, “that a feme covert acting with respect to her seperate property, is competent to act in all respects, as if she were a feme sole.” This is the doctrine announced in the case of Peacok vs. Monk, (2 Vesey, 190,) and again approved and acted upon by Lord Thur-low in the case of Hulme vs. Tenant, (1 Bro. C. C., 16.)
This doctrine, as thus broadly laid down, hasbeen a fruitful source of embarrassment to the English Chancellors, so much so indeed, as to have caused Lord Thurlow upon one occasion to declare, that in enforcing the doctrine, he acted *406upon the authority of the prior cases, and directly against his own inclination and judgment. He further remarked “that if the point were open, he should have thought that a feme covert, who had a separate estate, should not part with it, without a judicial examination,” and Lord Eldon himself, did not hesitate to expose the injustice and unreasonableness of the doctrine, andis made to declare in Sperling vs. Rockfort, (1 Vesey, 164,) that although he could not reconcile all that was said by Lord Roslyn, in Whisler vs. Newman, to former cases, yet he wished that the law might turn out for the protection of married women, to the extent to which it is there represented. Lord Alvanly, (as master of the Rolls,) in the case of Sackett and Wife vs. Wray, (4 Bro. C. C., 483,) held that in reference to the separate propery, the wife had no disposing power, but what was given her by the deed of settlement, and he meant to question the decision in Newman vs. Cartony, and Hulme vs. Tenant, Ellis vs. Atkinson, and Pybus vs. Smith.
Lord Roslyn was also strongly opposed to the doctrine, and upon several occasions manifested his entire dissent from the extreme length to which it had been carried in some of the udecided cases. In the case of Whisler vs. Newman, (4 Vesey, 129,) he expose its utter nakedness by remarking, that the doctrine in Hulme vs. Tenant, took away all protection “from married women, and made trusts for their benefit of very little importance. That if this rule in that case, and in Pybus vs. Smith, and Ellis vs. Atkinson, was to be pushed to its full extent, a married woman having trustees and her property under the administration of Chancery, was infinitely worse off and more unpro.*407tected than she would be if left to her legal rights, which' the husband cannot proprio maritiAaffect. And even- in the case of Hulme vs. Tenant, which is a leading case for the' support of the doctrine, Lord Bathurst at first dismissed the bill, but it was afterwards sustained by Lord Thurlow upon a rehearing.
In the midst of this fluctuation of decisions, discrepancy of opinions, and expressions of regret, it certainly could not have been deemed either rash or presumtuousin us, had we elected to discard in a measure, the authority of English precedent, and invoked the surer guide of sound reason, common sense and common justice. And this election we might the more readily have made, in consideration of the fact, that thin case presents for the first time in the judicial history of our State, a suitable opportunity to adjudicate authoritatively, the point now under consideration,- and we were consequently, in a measure relieved from- the' pressure of “ stare decisis,” at least to the extent of our' own adjudications.
Again, we ought to have been admonished by the painful embarrassments which are constantly experienced by the English Chancery, in the application of the doctrine as it seems to have obtained there, of the importance, in setting out upon our judicial career as a State, of placing the law upon the immutable basis of correct principle.
But had we no other apology for this seeming disregard of precedent, the delicate relation which as men we bear to the very interesting class of society,- who are more particularly interested in the question, ought to afford a sufficient motive. It would be monstrous indeed, that when upon every other subject that affects the interests of men, *408the law is continually changing to meet the progress of advancing civilization, upon this the most interesting of all subjects, and in reference too to a class of society who have kept even pace with the utmost progress of the age, it should be decreed to be as fixed and unalterable as is “the law of the Medes and Persians.”- Without intending to question the gallantry of the old English Chancellors, I may venture to assert that the sentiment that “it was against common right that the wife should have a separate property from her husband, andtherefore all reasonableintendments were to be admitted against her,” would scarcely find a response at the present day ; and yet such is the reported language of Lord Macclesfield, in 2. P. W. 82., and Lord Talbot seems to have been eqally exacting with reference to the ladies of his day, for in one of the cases decided by him, (3 P. W. 355,) he is made to declaro “ that though the husband settles an annuity in trust for his wife’s separate use, yet if he provide her with clothes and other necessaries it will for the time be a bar to any demand for arrears.’5 Chancellor Kent, with his probing scrutiny, seems to have penetrated the true secret of this doctrine as it obtained in the English Courts, and intimates quite strongly that it might have originated and found its sanction in the spirit of the age. He remarks, (3 John: Ch. R. 92) “Such strong aversion to the wife’s independent enjoyment of her separate estate, manifested so early in the history of the cases, may have given a permanent tone and color to the doctrine of the Court; and perhaps the language of these cases will not now be thought to be founded in equity and justice.” The fundamental error of the reasoning upon which the English doctrine is based, consists in the assumption that *409the settlement to the use of the feme covert, carries with it all the incidents of absolute ownership, of which the jus disponendi is the most prominent. Vide Fettiplace vs. Gorges—1 Vesy, Jr., 46. This assumption with respect to ownership, is clearly without any good foundation, when sought to be applied to the rights, powers and capacities of married women; for being purely a doctrine of the common law, it can by no principle of sound logic be made to bear upon a class, who by the canons of that very system are placed under disabilities as to ownership. Again, where there are trustees appointed to protect the trusts, it is very clear that the legal title to the property resides in the trustee, and in no one else; how then can the cestui que trust assume to convey that legal title, when she has only an equitable interest. And yet to sustain the principle of the English cases, it would seem that she must have the capacity to convey the legal title, for this is one of the “incidents of ownership.” Now, in the case supposed, viz: where there is the intervention of a trustee, can she convey the.legal title—can she convey that which she does-not possess ? And yet without the conveyance of the legal title, there is no full exercise of the jus disponendi, and consequently the reasoning must fail upon every principle of sound logic. But to demonstrate more conclusively the fallacy of this doctrine when tested by a practical illustration, let us suppose the feme covert (being by the terms of the deed of settlement a cestui que trust) exercises to the full extent her jus disponendi, what interest has the purchaser obtained 1 Evidently only such as resided in her at the time of the sale, viz: an equitable interest, and the legal title remains undisturbed. But a complete title must *410embrace both the legal and equitable interest; and yet such a defective disposition as this, is assumed to be the practical enjoyment of one of the principle incidents of property. If any further argument were necessary to establish the fallacy and utter unsoundness of the position, I think it may be found in the painful embarrassments that have constantly met the English Chancery Courts at every step that they have taken to give it a practical application. It may be truly said that the practical application of this doctrine has been made amidst the wailings and lamentations of the English Chancellors, from the time of Lord Thurlow to the present day.
The foregoing reasoning is equally applicable to the case where there is, by the terms of the deed, no intervention of a trustee, but the property is made to vest wholly and directly in the feme covert for her separate use. For even those Courts which have most strenuously sustained the English doctrine, all (with a solitary exception so far as I am advised) admit that the appointment of a trustee is not indispensable to sustain the trusts for the separate use of the wife, but that where the appointment has been omitted in the deed of settlement, the husband will be converted into a trustee, pro hac vice. Bennett vs. Davis, 2 P. W. 316 ; Parker vs. Brook, 9 Vesy 583 ; Rich vs. Cockell, 9 Vesy 369; 2 Story’s Eq. Ju., §1380.
Lord Brougham in Murry vs. Barlee (3 My. and K. 209) observes as follows : “ That at law, a feme covert cannot in any way be sued even for necessaries, is certain. Bind herself or her husband by specialty, she cannot; and al_, though living with him and not allowed necessaries, or apart from him, whether on an insufficient allowance or *411an unpaid allowance, she may so bind him that those who furnish her with subsistence may sue him, yet even in respect of these, she herself is free from all suit. This is her position of disability or immunity at law, and this is now clearly settled. Her separate existence is not contemplated—it is merged by the coverture in that of the husband, and she is no more recognized than is the cestui que trust, or the mortgagor ; the legal estate which is the only interest the law recognizes, being in others. But in equity, the case is wholly different. Her separate existence both as it regards her liabilities and her rights, is here abundantly acknowledged—not indeed that her person can be made liable, but her property may.” His Lordship goes on further tq say: “In all these cases I take the foundation of the doctrine to be this: the wife has a separate estate, subject to her own control, and exempt front 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.”
With the utmost respect for, and deference to the opinion of this eminent jurist, I cannot but think that he has fallen into two very manifest errors in regard to this subject. It certainly cannot be insisted with any show of truth, that the “object” of these settlements to the separate use of the wife, is to give her the uncontrolled disposal of the subject matter of the settlement. I should rather incline to the opinion, that the real object is such as is generally expressed on the face of the settlement, viz: the enjoyment of the use. But this certainly does not imply the right to part with or dispose of the property so settled. The em *412joyment of the use may clearly exist without the right of disposal. His Lordship seems to base his argument upon the further assumption, that because these settlements are the creatures exclusively of equity, therefore the common law disabilities of the wife are removed, and that she is restored to all the powers and capacities of a feme sole ; but I confess that I am unable to perceive the legitimacy of the deduction.
Upon every principle of sound logic, enlightened policy and sti’ict justice, I am of the opinion that in the converse of the position assumed by the majority of the English cases, (which position has been adopted by the majority of this Court in the present case,) is to be found the correct doctrine in regard to this subject. While they assume that a married woman in respect to her separate estate is to be regarded as a feme sole, with the absolute dominion or power of disposal over it, except in so far as that power may be restrained by the terms of the deed or will under which she became entitled to it, I hold that she has no power to sell or dispose of her separate estate, but what is specially given to her by the very terms of the instrument under which she claims.
In arriving at this conclusion I feel that I but consult the true interests of her who?occupies in society a position no less interesting than responsible—the wife and mother. So far from curtailing her rights, I desire but to add to them» by shielding her from the improvidence and not unfrequently the brutality of the sterner sex. By the adoption of this rule, we would give to marriage settlements their true character, and make them what they were intended to be—a protection against the undue influence of the hus*413band, and a sure guaranty for the comfortable maintenance of the wife.
It is insisted, however, by the majority of the Court, that our recent legislation in regard to the property of married women indicates very clearly the tendency of the legislative mind in favor of the adoption of the English doctrine. That the effect and tendency of the act usually denominated the “Married Woman’s Law,” is to free the property of the wife from the shackels which had been' thrown around it by the canons of the common law, by giving her the right, with the concurrence of her husband, to dispose of it absolutely; and that this is demanded by the commercial spirit of the age.
With all proper respect for the superior intelligence of my associates, I am constrained to differ from them, both as regards the indications of the legislative mind and' the practical effect of the act itself. It does not admit of a doubt, that the prime object of that act was to secure to the wife the title to her personal property. At common law, the personal estate of the wife, vested absolutely in the husband, and became subject to his control and disposal ; and the statute wa.s necessary to obviate and prevent that result, and to secure the legal title and the enjoyment of the property to the wife. This was the whole object and intention of the legislature in making that enactment. Nor is the practical effect of the statute such as the majority of the Court seem to suppose it to be. So far from relieving the disposal of the property from embarrassment, it but adds to that embarrassment, by requiring the concurrence of two minds, ■ where only one was before necessary. For as by the common law, the personal estate of the wife *414vested absolutely in the husband jure mariti, he might therefore dispose of it at his mere will and pleasure, independent of her wishes; but now by the statute, the title to the property being secured to the wife, the statute provides that no disposition shall be made of it, but by the joint act and concurrence of the two.
If it be the intention of the Court to apply the argument to property situated as this is, viz: property settled by deed or- will to the separate use of the wife, I will only remark, that it is by no means clear that the provisions of the act were intended to reach that class of estates. The stipulations of the trusts contained in the settlement would certainly prevail, independent of the provisions of the statute. Indeed, if any deductions applicable to this discussion are to be drawn from the spirit of the act, it seems to me that I am strongly sustained in the view which I have taken of the law on this subject. It is admitted by all of the English Chancellors who have discussed this subject that the doctrine which I advocate, affords the mops ample protection to the rights of the wife, and the statute certainly gives her rights, which she did not possess at common law, by protecting her personal property against the marital rights of the husband.
It may with some show of plausibility be replied, that the benificent arm of Equity is ever prompt to protect the weaker from the improper influences of the stronger; but there are many considerations why a resort to this source of protection, should be avoided, if possible. In the first place, the very act of applying to a Court of Equity for the redress of her grievances, is well calculated to engender dispord and strife in the domestic circle, which not un*415frequently result in the entire disruption of the eonnubial tie. But even should resort be had to the protection of the Court, how and by what means shall the unfortunate wife, establish her allegations of the exercise of undue influence on the part of the hushand ? What witness is to be found sufficiently acquainted with the private relations of the parties, to be able to drag from its secret recesses the required evidence ?
The case of Grigsby vs. Cox (1 Vesey 517) furnishes a strong and melancholy illustration of the views which I am now endeavoring to enforce, and should admonish us of the danger of adopting the doctrine of the English cases* which allows the wife, the full dominion over her separate estate. In that case there was a marriage settlement of an estate, in trust for the wife, to receive the rents and profits for her separate use, and as she should direct and appoint. There was no form of appointment mentioned. She by deed of appointment sold a part of the estate, without consulting her trustee, and with the concurrence of her husband. The answer of the wife in that case (vide Belt’s Supplement 218) averred that she had executed the deeds, under the threats and compulsion of the husband; but the answer was unsupported by proof, and Lord Hardwicke held the purchase to be valid, and the consent of the trustees not necessary.
But it is not alone against the brutal threats of an unfeeling husband, that the wife is to be protected. The danger more frequently arises from the love, affection and mutual confidence, which ought always to characterize that delicate relation. To her who has been willing to abandon the cherished home of her childhood, the loved scenes *416of joyous youth, the sacred associations of friends and relations, the warm embraces of father' and mother, to cleave to the object of her heart’s devotion, the sacrifice of property, interposes but a feeble barrier to a compliance with his behests; and thus the holiest impulses of her generous and confiding heart, are often converted into the deadliest foe to her domestic peace. In obedience to these generous impulses, she consents to strip herself of the comfortable support, provided by the provident solicitude of an affectionate parent, and is thrown with the pledges of connubial love, a hopeless pensioner upon the cold charity of the world. Doomed to a life of penury and wrant, she lingers out a miserable existence, which is to terminate only in crushed- pride a.nd blasted hopes 1 It is against consequences like these that I would interpose the barrier of the law; and I think that the object can be attained, only by leaving the power and capacity of the married woman, in respect to her separate estate, precisely where the common law in its wise benificence has placed it, inability to bind herself by contract.
Nor am I without authority of the very highest character to sanction the view which I have felt myself constrained to take in regard to this very interesting subject. Such has been the established doctrine, from an early date, in two of the oldest and most respectable States of Goufederacy; South Carolina and Pennsylvania, and such too is the current of decisions in Tennessee and Mississippi. Indeed, it is asserted, by Chancellor Kent (vide 2 Kent’s Com. 165, note a) that this may now be considered as the sound and prevalent American doctrine, and contra-distinguished' from, that of the English *417Courts; and in this assertion he is sustained by the very able Editors of White & Tudor’s Leading cases in Equity. Vide Vol. 1 p. 405. This doctrine was first authoritatively announced to be the law in South Carolina, in the case of Ewing vs. Smith, (3 Dess. Eq. R. 417) and it has been strictly followed ever since, in that State. Chancellor Harper, in allusion to that case (vide Reid. vs. Lamar 1 Strobh. Eq. R. 37) says: “If anything can be considered as settled, it is the settled law of this state, that when 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 conferred on her by the instrument creating her estate, which power must be strictly pursued, in contradistinction to many English cases, in which it has been held that she is a feme sole with respect to her separate property, and may charge and dispose of it as she pleases, unless in so far as she is expressly restricted by the instrument. This has been the settled law since the decision in Ewing vs. Smith, followed by a great number of cases decided in conformity to it, for a period ofmore than thirty years, and without any decision impugning or conflicing with it.”
In the case of Lyne’s Executor vs. Crouse et. al. (1 Barr R. 114) decided by the Supreme Court of Pennsylvania, the Court remarked as follows: “ In Lancaster vs. Dolan, 1 Rawle, it is laid down as the rule, that a married woman has no power but what is expressly given. In the case of Thomas vs. Folwell 2 Wharton, this rule is recognized as the settled law in Pennsylvania: That a married woman is to be deemed to possess no power in respect to her separate estate, but what is positively given or re*418served for her by the instrument creating such estate. Several other decisions of a later date recognise this doctrine. So, that whatever may be the law in other states, or in England, we must take the rule here indicated with so much conformity, as the law of this State; besides, this, rule has the merit of substantial justice to support it.”
This doctrine has been very elaborately discussed in the Supreme Court of the State of Tennessee and with the same result. In the case of Morgan vs. Elam, (4 Yerger R., 434,) Whyte, J., remarked in deliving his opinion: “I must confess that after the best examination that my very slender abilities permit, if it were necessary by the facts of the present case, to express an opinion decisively on this much controverted subject, I at present would say, that upon the principles upon which the doctrine is professed to be founded, and even upon the principle assigned in the cases, favoring the enlarged powers of the feme covert, as, the ground of such determination, according to my understanding of them, but above all, from the very moving cause and design of a settlement upon a femme covert, her restricted powers as laid down in the settlement itself, ought, according to the plain intent therein and thereby expressed, to give the rule, and measure its extent; rejecting the subtleties of wiredrawn though ^able disquisition, and the entanglement of disputation, enquiry and' investigation.”
Green J.,in his opinion delivered in the same case, remarks: “I regard this questionas being unsettled in this country, and this Court is under no obligation from a concurrent course of legal adjudication, to -sacrific principle to *419precedent.” In allusion to the argument used by Judge Platt, in his opinion in the case of Jacques vs. the Methodists Episcopal Church, (17 John. R., 548,) to the effect, that it is for the interest of society that the common law rule, that the husband becomes owner of all the wife’s personal estate should prevail, and that therefore, it is best that such rule of construction should be adopted, as will enable the husband by the consent of his wife, to possess himself of her estate, His Honor denounced itinthe strongest and most indignant language. “ This argument,” (says he,) “is as defective in morals, as it is in sound legal ’’principle. It defeats the prudent foresight of the settler, by enabling the husband and the wife to make a disposition of the estate, which the deed wasspeciálly intended to prevent; and at the same time it holds out an inducement of the strongest character for the husband to use undue means to obtain for himself his wife’s estate’” In commenting upon the various influences which may be brought to bear upon the wife, he exhibits the dangerous character of the English doctrine, in language' as beautiful and chaste as it is just and true. “Surely, he remarks, a just regard for the morals of society and an honest fulfillment of the intention of the grantor, alike demand that the powers of a married woman over her separate estate, shall not extend beyond the plain meaning of the deed creating the estate,”' The result of his investigations in regard to this subject, is couched in the following language: “ As by the common law rule, the existence of the wife is suspended during coverture, and she is rendered incapable of making any contract, it would seem to follow that when separate rights, and distinct powers are conferred on her by a deed of mar-*420riage settlement, that such deed should be so construed as to give her none of the powers of a feme sole, other than those expressly conferred by it.” Catron, C. J., also concurred with Whyte and Green, remarking, “ what the English doctrine is on the subject, it is diffiult to ascertain. The decisions are so confused and repugnant, that Lord Eldon’s complaint in Sperling vs. Rochfort, is most true, that upon all the cases taken together, it is utterly impossible to know the result.”
The doctrine as thus announced, was emphatically approved in the subsequent case of Litton vs. Baldwin. (8 Humph. R., 209.)
But it is asserted by the C. J. in the opinion delivered in this case, that the case of Morgan vs. Elam and Litton vs. Baldwin, have been overruled by the subsequent case of Powell vs. Powell, (9 Humph. R. 477,) and that the Euglish doctrine now prevails in the State of Tennessee. This, in my opinion, is mere assumption. It is only necessary to refer to the case of Powell vs. Powell to perceive that the question now under discussion did not arise, even incidentally; and the loose remarks of Turley J. in approbation of the English doctrine, must be considered in the light of mere dicta, and by no means entitled to the importance sought to be given to them. He does not refer, or even allude to either of these cases, but bases his remarks exclusively upon the doctrine as announced in Peacock vs. Monk and Hulme vs. Tenant. The fact is, that His Honor seems to have been either ignorant of, or had forgotten the fact, that the point-had ever been decided by the Supreme Court of his State. His remarks were evidently the result of inadvertence. It would indeed be a *421ease unheard of, that so important a doctrine should be deemed to have been overruled, when the cases establishing it were not even alluded to. The only questions arising in the case of Powell vs. Powell, and the only ones which the Court pretended to decide were, whether a direct conveyance from husband to wife, made upon a valuable consideration, would be sustained in equity, and whether the relinquishment by the wife of her right of dower in real estate, amounted to such a valuable consideration. Both of these questions were decided in the affirmative, and that is the entire sum and substance of that case. I hazard nothing in asserting that the doctrine contained in the case of Morgan vs. Elam, has been the settled law of the State of Tennessee from the date of that case to the present time.
The same doctrine was held in the Supreme Court of the State of Mississippi in the case of Doty et al vs. Mitchell, (9 S. and M. 435,) and referred to and affirmed in the subsequent case of Montgomery vs. the Agricultural Bank (10 S. and M. 566).
Whether any of the other States of the Confederacy have adopted this view of the law, I have been unable to ascertain, not having had sufficient access to the reports of their decisions to be able to determine.
I do not feel that I should be justified in dismissing this subject without a more special reference to the very able and lucid opinion of Chancellor Kent, delivered in the case of the M. E. Church vs. Jacques. It is true that (his case was overruled on appeal to the Court of Errors of New York; and while it can be of no authority in that State, yet it will not fail to commend itself to our most respectful *422consideration, as well from the high character of its author, as from the critical analysis, the broad and expansive views, and the logical argument with which the opinion itself abounds. As a contribution to legal science, it may well rank amongst its proudest trophies. The opinions of such a man are surely entitled to the utmost consideration, and I may therefore be pardoned for citing, somewhat at length, his remarks with respect to the result of his investigations into this very interesting question: ’“ I apprehend,” says he, “we may conclude (though I certainly do it with unfeigned diffidence, considering how great talents and learning, by a succession of distinguished men, have been exhausted upon the subject,) that the English decisions are so floating and contradictory as to leave us the liberty of adopting the true principle of these settlements. Instead of holding that the wife is a feme sole to all intents and purposes as to her separate property, she ought only to be deemed a feme sole sub modo, or to the extent of the power clearly given by the settlement. Instead of maintaining that she has an absolute power of disposition unless specially restrained by the instrument, the converse of the proposition would be more correct, that she has no power but what is specially given, and to be exercised only in the mode prescribed, if any such there be. Her incapacity is general, and the exception is to be taken strictly and to be shown in every case, because it is against the general policy and immemorial doctrine of law. These very settlements are intended to protect her weakness against her husband’s power, and her maintenance against his dissipation. It is a protection which the Court allows her to *423assume, and her friends to give, and it ought not to be rendered illusory.”
Applying the doctrine to be extracted from the foregoing views to this case, and I am at a loss to conceive upon what principle the decree of the Court below can be sustained. It is true that in most of the cases referred to in support of my position, the - particular question involved was as to the power of the wife, in seeking to dispose of her estate, to adopt any other mode than the one specially designated in the deed of settlement. In this ease, however, the deed prescribes no particular mode, nor does it in terms give any power of sale. It simply conveys the property to the wife, and to the heirs of her body, coupled with the stipulation that it is “not to be subject to the control, or debts, or contracts of her husband.” The Court, in their argument, admit that the deed creates a separate estate for the wife, but assume that it is not within the principle of the American cases which I have referred to, and in support of that assumption, cite a casual and vague remark of Chancellor Kent upon this subject. I am willing to submit the interpretation of that remark to any candid mind, and if it do.es not demonstrate pretty conclusively the inclination of the Chancellor to apply the doctrine to a case even of this kind, I will freely yield the argument. Upon the principle assumed in all of the American cases which I have cited, I am constrained to hold, that where the deed of settlement contains no power of disposal, the jus disponendi cannot be exercised by the wife, at least so as to take effect during her life, and that her interest in the property is restricted to the use merely. The case from 1 Barr is one in which there was no particular mode of *424disposition prescribed, and is in all respects similar to the case before us. It is worthy of note that none of the American cases which profess to adhere to the English doctrine upon this subject, have had the boldness to carry it out to its legitimate results, when called upon to give it a practical application. However wrong in principle the English Courts may have been, it must be admitted that they have preserved the virtue of consistency. Holding as they do to the enlarged and unrestricted powers and capacities of the wife, they permit her not only to alienate but also to charge her separate estate, to any extent that she may desire. This is the current doctrine of those Courts.
The American Courts, however, are placed in this awkward dilemma. While they profess to look upon the wife, in respect to her separate estate, as discovert, and invested with all, the rights and capacities of a feme sole, for the purpose of alienating her property, they yet shrink from permitting her to charge it, by her general engagements.— In other words, they accord to her absolutely the right to alienate—part with and destroy the entire estate, but she may not be permitted to do an act, which by possibility might deprive her of a portion of it. A doctrine which involves an inconsistency so glaring, cannot command my respect, and therefore will not receive my sanction.
In closing my observations upon this branch of the case, I may be permitted to remark with reference to the precedents cited and relied upon by the majority of the Court, that while age lends to truth a beauty and dignity, no accumulation of years can ever sanctify error. Influenced b}*this principle, the enlightened jurists of South Carolina, Pennsylvania, Tennessee and Mississippi, supported by the *425approval of the great American Chancellor, have boldly repudiated the English doctrine, and 1 am content to be ranked as an humble follower of such worthy leaders.
In my observations upon the special point presented by this case, it will be perceived that I have left untouched many of the incidental questions which may arise out of this very delicate subject, such as the right to charge the separate estate of the wife for necessaries furnished for her use, or for expenses incurred for the benefit of the estate itself, and how and under what circumstances, such charges will be allowed to be made. Also the power of the Court of Equity to alter or change the nature of the property, upon the application of the parties interested therein, and many others which might be readily suggested. Indeed, the question as to the charging of the separate estate, for necessaries and outlays, has already been adjudicated by this Court in the case of “ Administrator of Smith vs. Poythress,” (2 Florida R., 92,) and the right is placed upon grounds which I fully approve of, and which are not at all in conflict with the general position which I have assumed in this case.
There is no conflict between the majority of the Court and myself, as to whether this deed created a separate estate for the wife. It is admitted that it did, and it might therefore be deemed out of place, were I to indulge in any lengthened observations upon this point. I shall content myself by briefly remarking that there is a great diversity of opinion in the reported cases, as to what particular words will create a separate estate for the wife, but they all seem to concur in the adoption of this rule, that *426where by the terms of the deed or settlement, the intention to exclude the marital rights of the husband, is clearly expressed or can be reasonably implied in such a case, a trust for the wife will be declared. No particular form of words is essential; the intention to exclude the legal rights of the husband, is all that is required to be shown. Clancy’s Hus. and Wife, 262; 2 Bright’s Hus. and Wife, 211; 2 Story’s Eq. Jur., § 1381.
It was further insisted by the majority of the Court, that as the settlement upon the wife was executed in the State of Alabama, (the then residence of the husband and wife,) where, it is assumed, the English doctrine prevails as the law of the land, the doctrine of ex loci contractus would operate, and consequently the wife enjoyed the right to deal with the property as a. feme sole, notwithstanding her subsequent removal into this State. There are two objections to this argument. In the first place I am not satisfied that the Court is correct as to the law of Alabama. It is stated in the American notes on “White and Tudor’s Leading cases in Equity,” (Vol. 1., p. 411,) that in the State of Alabama, some of the earlier cases inclined toward the English doctrine, and reference is specially made to Forest, et. al. vs. Robinson, Executor, 4 Porter, 44, and to Saddler and Wife vs. Houston and Gillespie. Ibid, 208. 1 have carefully examined the two cases referred to, and find that the broad question as made in this case, did not arise in either of them. In both of those cases, the application was on the part of a creditor to charge the separate estate, for the payment of a debt of the wife. What is said in those cases therefore, with respect to the general doctrine, must be, viewed as mere dicta. I have also examined all of the Al*427abama cases, from the first that was ever decided in the State, down to 6 Alabama Reports, and have found not one in which the point was expressly ruled. The case from 17 Alabama, is clearly not in point. In that casethe deed of settlement provided that the wife should have “ the complete control of the property, as though the marriage had' never taken place.” A stipulation evidently in favor of the right of alienation. But even admitting the prevalence of the English doctrine in that State, yet the argument is wholly inapplicable to the case before us. It is not the Alabama contract between Tate, the settler, and Mrs. Shorn®, the beneficiary, that we are now called upon to adjudicate. The contract that we have to deal with, is the Florida contract, made between the beneficiary of the settlement and Bobe, the purchaser of the slaves. It would certainly be extending the doctrine of ex loci contractus, to a most unreasonablelenght, to apply it to the circumstances of [this case, as is sought to be done by the majority of the Court. The argument, though at the first blush, somewhat speious, will upon examination, be found to be wholly untenable.
From the view which I have taken of the law of this case, it might seem unnecessary that I should refer to the testimony contained in the record, but inasmuch as the Court has assumed to base its judgment, in part upon the evidence, I may be permitted very briefly to refer to it. From the cursory examination which I have given to it, I am far from being fully satisfied, that there is that conclusiveness in it, which ought always to be required, whenever it is attempted to establish the fact of dealing against, a married moman. The evidence in this case very clearly-*428shows that, in the negotiation of the sale of the slaves, the wife had no participancy. She was never consulted by the purchaser, either as to her desire to sell, or in regard to the price to be paid, but the whole evidence conclusively shows that he dealt with the husband, as though he were the absolute owner of the property. I would not be understood as desiring to lay down any definite rule upon the subject, as each case must be made to depend upon its attendant circumstances, but I will say that where a feme covert is specially empowered to contract, a Court of Equity ought always to look with a jealous eye upon her dealings, with a view to • protect her from the operation of im" proper influences. And especially ought this to be so, whenever, as in this case, the party purchasing has full knowledge of the extent of the wife’s interest in the property.
If I have exceeded the limits usually assigned to a dissenting opinion, my apology may be found first, in the intrinsic importance of the questions involved, and secondly, in the fact that the chief point in this case, has never before been brought under judicial investigation in this State.'
I am clearly of the opinion that the decre of the Circuit Court ought to have been reversed and the bill ordered to be dismissed,
Upon a full review of the whole case, my mind has arrived at the following conclusions, as applicable thereto:
1st. The appointment of a Trustee, is not indispensable to sustain a trust for the separate use of the wife, but where in a deed of settlement, the appointment has been *429omitted, the husband will be converted into a trustee pro hac vice.
2nd. A married woman has no power to sell or dispose of her estate which has been settled upon her for her separate use, but what is specially given to her, by the very terms of the instrument, under which she claims.
3rd. Where the deed of settlement contains no power of disposal, the jus desponencli connot be exercised by her, at least so as to take effect in her life-time, her interest in the property being restricted to the use merely.
4th. Where by the terms of the deed or settlement, the intention to exclude the marital rights of the husband, is clearly expressed, or can be reasonably implied, in such a case, a trust for the wife will be declared. No particular form of words is essential, the intention to exclude the legal rights of the husband is all that is required to be shown.
5th. In cases where the feme covert is specially empowered to contract, a Court of Equity will always look with a jealous eye upon her dealings, with the view to protect her from the operation of improper influences.