By the Court.
Benning, J.delivering the opinion.
The language of the will is, “that all the property hereby given to my daughters, is given to their sole and separate use, not subject to the debts or contracts of their present or any future husbands.”
Words similar to the latter of these words, namely, to the words, “ not subject to the debts or contracts of their present, or any future husbands,” have been held, in two cases, by this Court, to impose a restriction to some extent upon the wife’s power of alienation, viz: to the extent of preventing her from alienating, or binding the separate property, for her husband’s debts; one of these, was a case decided at Savannah, January Term, 1858 ; the other, the case of Johnson vs. -, decided at Macon, January Term, 1858.
Such words seem to manifest a clear purpose in the donor, that the property is not to go in payment of the husband’s debts. But it would go in payment of those debts, if the wife could take it, and with it, pay the debts. The words *656therefore, seem to manifest a clear purpose, that she is not to have the power to do this ?
This is the view which this Court has taken of such words. The will in this case, however, was made in Alabama; and it is insisted, that the will is to be read by the law of Alabama, and that the Courts of Alabama, take a different view of such words. But we do not find that they do. The two cases cited to show that they do, (17 Ala. R. 617. Do. 797.) fail to show it. They were cases containing-no such words, but merely words creating a separate estate in the wife.
We think, then, that the words in this case, were such as to deprive Mrs. Scott of the power of mortgaging the property, for the purpose of paying off the debts of her husband. The effect of the mortgage and the note it secured, was ta> pay off the debt of the husband, so far as the holder of it; Keaton, was concerned, though not so far as Mrs. Scott herself was concerned, for the debt was transferred to her. But paying it off, so far as Keaton was concerned, was enough; a payment of that sort was one of the very things intended to be guarded against. Besides, at bottom, no payment she could make would be more than that. Suppose the notes had not been transferred to Mrs. Scott, but had been receipted in full, and extinguished, still, she would have had the right to recover the amount of the notes out of her husband, merely by suing him for so much money paid to his use. And in every case in which, the separate property went to pay the husband’s debts, an action of this sort would result to the wife. To say, therefore, that the words, did not mean to prohibit any payment of the husband’s debts,, which should leave to- the wife a right of action for reimbursement, against the husband, would be to say, that they were to have little if any, practical effect.
Consequently, we think the mortgage void.
If the mortgage was void, the introduction of the evidence going to show the consideration on which it was founded, *657would have been useless. So, we think, that the Court was aright in excluding that evidence.
The other exceptions were waived.
Judgment affirmed.