The opinion of the Court was delivered by
Moses, C. J.It has .been long held in this State, contrary to the doctrine which prevails in England, that a married woman has no control or power over her separate estate beyond that conferred by the instrument creating it. The Court of Equity has, therefore, interposed to promote the benefits designed by the trust, and make it subservient to the real purpose for which it was intended, by either allowing a sale of the property, or its charge or incumbrance, or its devotion by way of security for means necessary for its preservation from loss or decay. While it has not withheld the aid of its jurisdiction to permit the cestui que trust so to deal with the estate, unless forbidden by the deed or will under which it arises, as to make it a source of profit, instead of one of loss, it never proceeds without first *319ascertaining by testimony that the proposed act will tend to the interest of the parties who are the objects of the trust. In Magwood and Patterson vs. Johnston, 1 Hill Ch., 236, Chancellor Harper says: “How far have our Courts departed from the English doctrines? Thus far, that the wife should not, by her own act merely, charge her separate estate. The Court will look into the necessity and propriety of the charge. If she is under the necessity of supporting herself and family on the credit of the separate estate, she may do so, as in England. But the Court, before making her estate liable, will look into the circumstances of the husband, and be satisfied that the necessity existed, and that the goods furnished or money advanced was proper in her circumstances.”
In Dunn vs. Dunn, 1 S. C., 354, this Court used the following language: “It is settled law in this State that without the aid of a Court of Equity a married woman cannot dispose cf or charge her separate estate except in the execution of powers conferred by the instrument conferring such estate.”
That the Court of Equity in this State has exercised over trusts in favor of married women the same control that they can themselves exercise in regard to them in England, cannot be doubted or disputed, with this limitation, that this Court will only extend its approval where the proposed change or act is to enure to the interest of the beneficiaries.
It is objected that if the Court had the power which is claimed for it, no rights of Mrs. Fishburne in the premises were affected by the order, because the proceeding was by petition, a process under which no judgment could be rendered that could bind the separate estate of a feme eovert. The form resorted to was the one in general practice where no adversary rights were asserted against the settled property of the married woman. The petition was not only by the trustees in whom the legal title vested, but virtually also by Mrs. Fishburne and her husband, who not only certify to the truth of the facts set forth in it, but “respectfully join in the prayer thereof.” The petition to which they were parties avers that they had made application to the trustees, the co-petitioners “ to raise a sum sufficient to enable them to carry on the planting operations of the said plantation by giving a mortgage of the said Enfield plantation.” The legal title to the property has vested in Mrs. Fishburne, freed and discharged from all trusts. She has enjoyed the benefit of the advance made at her own request under a judgment of the Court *320which stands unreversed. Can she assail it in the mode she now proposes ? It is valid and binding because the Court which ordered it had jurisdiction over the parties and the property in the ease in which it was rendered, and it cannot be vacated in this collateral way.
We cannot sustain the proposition of the appellants, which seeks to treat Dr. Fishburne as the principal in the debt, and the trust estate only as the surety, and thence claims to discharge the latter from all liability on the mortgage by reason of the extension of indulgence by the creditor, the holder of it.
In no possible view can such a relation be inferred from the transaction, looking to all of it as a whole.
The petition, so far from regarding the plantation as a surety for the bond of Dr. Fishburne, on which the means of carrying on the planting operations were to be raised, shows that the application was to permit the trustees “ to mortgage the said plantation for the purpose of raising the sum required for the purposes set forth.”
The bond given was that of Dr. Fishburne, but the name of any other obligor would as well have answered the purpose in view ; in fact, the proper parties to have executed the bond were the trustees who held the legal title to the estate which was to be mortgaged. Equity looks not to the form, but to the substance and essence of the transaction. The very mortgage which secures the debt avers that it was incurred for the benefit of the trust estate. We see nothing which can in any way convert the wife into a surety for the husband ; the debt, though nominally his, was not so in fact. The real debtor (so to speak) was the trust estate, and it must respond to the obligation it has incurred.
The motion is dismissed, and the case remanded to the Circuit Court for Georgetown County, that the further order, now necessary by the lapse of time, may be had for the proper enforcement of the judgment.
Wright, A. J., and Willard, A. J., concurred.