dissenting. I cannot concur in this judgment. I am so much dissatisfied with it that I had intended to express my views upon the subject at some length, but I find myself under such circumstances as not to be able to do it at this time. Considering, however, its great importance, I cannot consent to let it pass without indicating at least the heads of my objections.
It seems to me that the opinion proceeds upon the mistaken view of going back to the common law as the basis of construction, instead of to the constitution of 1868, which, as I conceive, was intended to supersede the old common law doctrine as to the rights of married women, which, as to property, substantially merged the existence of the wife into that of her husband, and to substitute therefor a fundamental constitutional provision, giving to married women civil existence not only as to the power of *531acquiring and holding property in her own right, but also as to the corresponding power to dispose of it. The power to hold the fee, as a rule, carries with it the inherent right of the jus disponendi; and w'hen it was considered wise to make a great change as to the power of acquiring, it was not unnatural that there should come with it a corresponding change as to the power of disposal— one being the logical sequence of the other; otherwise, the power to receive and hold, without the power of disposal, would have in it something of that element which made the mortmain laws so objectionable.
The provision of the constitution is as follows: “The real and personal property of a woman, held at the time of her marriage, or that which she may thereafter acquire, either by gift, grant, inheritance, devise, or otherwise, shall not be subject to levy and sale for her husband’s debts, but shall be held as her separate property, and may be bequeathed, devised, or alienated by her, the same as if she were unmarried,” &c. I would ask if there is any one whose mind is unbiassed by long familiarity with the common law doctrine, who can read this provision as a whole without being perfectly satisfied that the purpose was threefold: first, to supersede the common law by endowing a married woman with the power to acquire and hold property in her own right; second, to protect that property from, not her oAvn, but her husband’s debts; and third, to give her the general poAver of disposal thereof, “the same as if she were unmarried” — the words, “bequeath or devise,” enabling her to dispose of her property at her death, and the word “alienate” to dispose of it during her life?
Is it not plain that the gi’ant of the poAver to acquire and “alienate” property, gave at the same time the power to contract, so far, at least, as was necessary to the act of acquiring or of alienating ? It is not alloAvable to assume that a constitutional provision would give a poAver without giving also the means necessary to execute it. As it seems to me, the power to purchase and alienate necessarily carries the power to make a contract in respect to the property. In my judgment, the power of a married woman to contract in respect to her separate estate was not given to her by any act of the legislature, but by the constitution itself, which gave her the express poAvers to acquire, hold in her own name, *532and to “alienate” it, and all powers necessary in executing those expressly given.
This was certainly the contemporaneous construction. In 1870 the legislature passed the “Act to carry into effect the provisions of the constitution in relation to the rights of married women,” which, after repeating the very words of the constitution, then, in order to make the matter more clear and full, proceeded as follows : “A married woman shall have power to bequeath, devise, or convey her separate property in the same manner and to the same extent as if she were unmarried; * * * and all deeds, mortgages, and legal instruments of whatever kind shall be executed by her in the same manner and have the same legal force and effect as if she were unmarried. A married woman shall have the right to purchase any species of property in her own name and to take proper legal conveyance therefor, and to contract and be contracted with in the same manner as if she were unmarried,” &c.
In giving interpretation to this act in the case of Pelzer, Rodgers & Co. v. Campbell Co., 15 S. C., 591, this court, in adverting to the fact, that the terms of the act are more full than those of the constitution, said: “It is plain that these apparent additions were nothing more than stating fully and particularly what was properly inferable from the powers given in the constitution to devise, bequeath, or alienate. So as to the third section: Can it be fairly, and with entire confidence, affirmed that the powers expressly given in the constitution to acquire property by gift, grant, inheritance, devise, or otherwise, do not include and authorize the subordinate powers specified by the act to purchase property in her own name, and take proper legal conveyances therefor, and to contract and he contracted with ? It is asked, with some force, how could she purchase or convey without the power to contract ? It is insisted that the particulars of the act are nothing more than the filling up of the general outline indicated by the constitution, &c.” — page 592. See, also, the case of Witsell v. Charleston, 7 S. C., 88.
The constitution gives to a married woman the express power to “alienate” her separate estate. What does that mean? The word “alienate” does not express any particular form of transfer, *533but is a general term and embraces all the forms of transfer known to the law, on the principle that the whole includes all its parts. “To alienate is to pass property from one person to another.” 1 L. cf R. Lazo Diet-., under title “alienate.” Does it not include a sale for consideration, or a gift without consideration, or a deed of conveyance absolute or conditional, for life or for years ? And if so, why not a mortgage as stated in the explanatory act ? Suppose there was here, no statutory or' constitutional “separate estate,” but one created under .the old equity doctrine by a deed of settlement inter partes, and the identical words of the constitution, “bequeath, devise, or alienate,” were used in raising the powers, would not the broad and general term “alienate” give the cestui que trust in equity the right to charge the estate with a mortgage? Can there be a doubt upon the subject?
As Mr. Bishop says : “Out of the power which a femme covert has to dispose of her separate estate, or of the income thereof, whether the power proceeds from express words in the deed of settlement, or from the construction of the court, where the settlement is silent respecting it, grows the lesser power, which is included in the other, to charge the estate with a specific debt or engagement. This general doctrine is universal in our American courts, that this lesser power exists wherever the greater does,” &c. 1 Bishop Mar. Worn., sec. 870, and cases in notes. Again, at section 872, the same author says : “It is but reiterating in another form of words what has already been laid down, to say that if a married woman has the authority to convey her separate estate, she can therefore pledge or charge it with a debt or engagement whenever she employs express terms, or those which necessarily carry with them this intent. What will constitute a charge upon the estate ‘is’ in the language of Harris, J., in a New York case, ‘simply a rule of evidence.’ All agree that when a wife has expressly charged the payment of a debt upon her separate estate, whether it be her own debt or the debt of another, such charge is valid and will be enforced.” Yale v. Dederer, 18 N. Y., 265, and notes.
It is true, Mr. Bishop is not of our own State, but he is certainly a respectable authority, and after a very careful perusal of his work, I think I can venture to affirm that the above quota*534tions contain that which is undoubtedly good equity in England, and I think also of every other State of the Union, and I should be sorry indeed to see South Carolina alone í’epudiate a doctrine which is so sensible, just, and equitable and so well established everywhere else.
But it is said it has been decided in this State that a mortgage is not an alienation. Warren v. Raymond, 17 S. C., 173, and Simons v. Bryce, 10 Id., 354. True enough, it has been often held, and properly held, that until the mortgagor is out of possession a mortgage is not a complete alienation in the sense of the statute of W. and M., so as to place the property conveyed or “aliened” beyond the reach of creditors of the ancestor. But, surely, it cannot be necessary to show that that case has not the remotest analogy to this, nor anything whatever to do with a question as to what is embraced within the broad and general term “alienate” when used in the powers granted to a married woman. I suppose that the power to “alienate” would cover and embrace the lease of the premises for a month or a year, but it would not be assuredly on the ground that the lease was a perfect alienation ; but because, in reference to a power, the greater includes the lesser. It is impossible to entertain the idea for a moment that the power to “alienate” gives the right to exercise no control of the property, short of a complete and absolute alienation.
It is as certain as anything can be that down to 1880, -when the case of Pelzer, Rodgers & Co. was decided, the law in this State was perfectly well settled, both by the legislature and the courts, that a married woman had the right not only to charge her separate estate by a mortgage executed for that purpose, but to bind herself by general personal engagements, without any reference to her separate estate. See Wolfe and Witte, and other cases cited by the Chief Justice. But in 1882, on the passage of the general statutes through the legislature, the act of 1870, above quoted, was amended by inserting in the fourth line of the third section, after the words “contracted with,” the simple phrase “as to her separate estate so that the section now reads “A married woman shall have the right to purchase any species of property in her own name, and to take proper legal conveyances therefor, and to contract and be contracted with as to her *535separate property in the same manner as if she were unmarried.” See sec. 2,037, General Statutes. And it is now contended that these five words inserted in the act changed fundamentally the powers of a married woman, and that she cannot now charge her separate estate by giving a mortgage of it for the debt of another.
As it seems to me, this is a grave error, arising for the most part out of the mistaken view that the powers of a married woman did not originate in the constitution, but were created by the express power to contract given in the act of the legislature, which was amended as before stated, this view, as it seems to me, causing much more importance to be attached to the short amendment that it is entitled to. I suppose it is my fault, but I confess that I am unable to understand the process by which the conclusion about to be announced is reached :
First. The little amendment does not purport to repeal anything ; all that it claims to do is to amend the act of 1870, so as to limit the- power to contract, therein given in general terms, to the separate estate of the married woman. Even that purpose was not in terms declared, but this court has held in the recent case of Habenicht v. Rawls, that limiting the power of contract to the separate estate, was a negation of the power except as to such estate; that is to say, it repealed by implication the power given by that act (not by the constitution) to make such general personal contracts as might be sued at law. It must not be overlooked that there is a great difference between such general power in a married woman and her contracts with express reference to and charged upon her separate estate.
Second. But I deny most positively that the little amendment, potential as it is claimed to be, had any effect whatever upon the powers which were given by the constitution and involved in the great power to “alienate” generally, as we have hereinbefore endeavored to show. The amendment of the act of 1870 was nothing-more than an act of the legislature, and did not, and, of course, could not, repeal any right given by the constitution. If it had attempted to do so, the effort would have been futile and vain, and if it had in terms repealed the whole of the act of 1870, including the declaration in it that a married woman could charge her *536separate estate with a mortgage, most surely that would not have affected the constitution itself. All the rights and powers given by the constitution are as intact to-day as if the little amendment had never been made.
Third. I have not the least idea, however, that the legislature, in making the amendment, ever dreamed of the very large effect now about to be given to it. The act, .after the amendment was incorporated, reads as follows : “A married woman shall have power to bequeath, devise, or convey her separate property in the same manner and to the same extent as if she were unmarried, * * * and all deeds, mortgages, and legal instruments, of whatever kind, shall he executed by her in the same manner, and have . the same legal force and effect as if she were unmarried. * * * A married woman shall have the right to purchase any species of property in her own name, and to take proper legal conveyances therefor, and to contract and be contracted with as to her separate estate in the same manner as if she were unmarried,” &c.
Would it not be most extraordinary if the words in the third section, “as to her separate estate,” should be held to destroy most of the other provisions in the same act ? It is one of the rules of construction that we must assume that every part of the act was intended to have some meaning. ' It is a judicious habit of courts to seek for some construction by which every part of the statute may be given its proper effect. In my judgment such construction is at hand here. A construction which harmonizes all parts of the act is not inconsistent with the constitution— is in exact accordance with the words used, and, as I believe, also with the "intention of the lawmakers. The words “as to her separate estate” were manifestly inserted for the purpose of making an exception to a proposed limitation upon the power to contract, and therefore they do not intimate any change of "the law to the extent of the exception; that is to say, as to her separate estate; as to that- the law- stands entirely untouched by the amendment. Then is it not obviously the proper construction that the framers of the amendment intended to leave entirely unaffected the powers of a married woman as to her separate estate; but to take from her the power to make personal and general contracts, without any reference to her separate estate, such as notes, *537bonds, endorsements, guarantees, &c., which latter power being given by the act of 1870, was repealable ?
Keeping in view that the object was to repeal so much of the act of 1870 as gave the power to contract generally, and not to limit (which the legislature could not) any power to contract arising out of the constitution, the words used were appropriate, and are intelligible. What is the ordinary and proper meaning of the prepositional phrase, “as to” ? Is there any one living who, upon being asked the question, would not on the instant answer that it means “with respect to,” “in reference to,” “concerning,” “about” ? Accordingly we find that the dictionaries (Webster and Worcester) declare the definition to be “with respect to.” That being the case, what warrant is there for making the phrase “as to” mean “in consideration of,” or “for the benefit of” ? If such be the proper construction, the provision is clearly unconstitutional, as undertaking to meddle with a matter already fixed by that instrument.
But it is manifest, as it seems to me, that such is not the proper meaning of the phrase. To describe the property specifically and declare the purpose answers fully the definition “with respect to.” If a married woman should convey her estate for any purpose whatever, would that not be “in respect” to it? If she should give it away, would that not be “with reference” to it? And if she should charge it, describing it clearly, by mortgage or otherwise, who can say that that would not be “in reference to” that part of her separate estate ? I confess I cannot see the necessity of straining a meaning into the phrase which the words do not require, and especially as such construction makes an act of the legislature in effect repeal a provision of the constitution. On the other hand, the natural construction is not inconsistent with the provisions of the constitution, gives effect to all the different parts of the act, and makes the law as a whole consistent and symmetrical — taking from a married woman the right to contract in the air, that is, to make general personal engagements given to her b.y the act of 1870; but leaving her, as the constitution endowed her, with the power “to alienate,” that is to say, to sell, convey, give, lease, mortgage, or chargé in any other way her separate estate at her own will and. pleasure “as if she were *538unmarried.” The constitution, in my judgment, gave her these rights, and no mere act of the legislature can take them away from her. The constitution added largely to her power of taking and holding property in her own right, and I have never been able to see why it should be regarded so dangerous, when at the same time, it increases her control over the very thing given. But wise or unwise, politic or impolitic, the constitution gave her these rights, and I know of no authority, short of a constitutional provision, that can take them away from her.
With an earnestness, increased, perhaps, by witnessing the struggle to get back to the old chaos and confusion, “in respect to” the rights of married women, I repeat the closing remark of the opinion in the case of Pelzer, Rodgers & Co. v. Campbell & Co.: “In the language of Chancellor Wardlaw, we hope it may never be considered improper for the wife to contribute, by all lawful means, to the success of her husband’s enterprises. In many cases it is both politic and dutiful that such power should be exercised.”
I am clearly of opinion that the ruling of Judge Hudson was right and should be affirmed.
Judgment reversed.
In this case a petition for rehearing was filed by the plaintiffs. Upon this petition the court endorsed an order bearing date January 6, 1888, in the words following: “We have carefully considered this petition and finding that no material fact or important principle of law has been overlooked, the petition is dismissed by order of the court.”