dissenting. I cannot concur in this *546opinion so far as it relates to the partnership debts, and the assignment of Mrs. Gwynn to pay them. With great respect for the opinion of my brethren, I find it impossible to agree with the construction given to the married woman’s provision in the constitution, and to the act of 1870 as amended in 1882, giving to a married woman the power to contract as to her separate estate. The provision of the constitution is in these words: “The real and personal property of a woman, held at the time of her marriage, or that she may thereafter acquire, 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, the same as if she were unmarried,” &c. In construing this provision, it is insisted that the word “alienated” does not, either expressly or impliedly, confer upon a married woman any power of disposition over her separate estate, except to make “a simple sale of it” out and out; for the reason, as claimed, that the provision must be construed in the light of the common law, which denied to a married woman any power to contract or dispose of her property. As it seems to me, such a construction is unauthorized for the following, among other, reasons, stated in simple propositions:
First. The very nature of the instrument in which the provision appears, as it seems to me, excludes such construction. It is a formal provision in the constitution, embodying the fundamental law, which, as is very apparent, essayed to make very radical changes upon the very subject of the status of a married woman concerning her separate property. The common law may be repealed by a simple act of the legislature, not to say by the constitution, the fundamental law. If it were otherwise, the old common law could never be changed at all, which is certainly not the case. If it had not been the intention to alter the common law, why was the provision inserted at all ? In the citation from Judge Cooley, he says: “We do not mean that the common law is to control the constitution, or that the latter is to be warped and perverted in its meaning in order that no inroads, &c., may be made in the system of common law rules, but only that for its definitions we are to draw from that great fountain,” &c. That is certainly sound doctrine, but I have never been *547able to see wherein the common law has ever undertaken to define the word “alienate,” so as to limit it to a straight out and out “sale” under any and all circumstances.
Second. The proposed construction is absolutely negatived by the context of the provision. It cannot be denied that the other words in the connection, “bequeath” and “devise,” confer substantial and important additional powers upon a married'woman, which, before the constitution, were not allowed by the common law ; yet no one has ever claimed that they were not entitled to their proper and natural meaning. As to them, and that other great power of holding property in her own name without the intervention of a trustee, we hear nothing of the alleged necessity of reading them in the light of the common law. On the contrary, it is perfectly manifest that it was the intention of those who framed the constitution to change the common law, and to repeal so much of it as was inconsistent with the terms used — > construed in their natural and proper sense. The meaning of the word “alienate” is quite as clear and well defined as that of “devise,” and if the common law is not invoked as to one, why should it be allowed to limit and emasculate the other in palpable violation of the words used, and, as I believe, of the whole scope and intention of the instrument itself? There cannot be the least doubt as to the intention of the married woman provision, as ascertained by the words used, as well as by contemporanous construction and the acts of the legislature passed soon after the adoption of the constitution to carry into effect its provisions.
Third. The construction proposed is contrary to the clear meaning of the word itself. Instruments are generally construed to mean what the words used naturally import. “Alienate” is a general term, covering and embracing all the different modes by which property may be legally transferred. This is not only its natural and proper, but its necessary, meaning in the connection in which it appears, in order to make the whole provision consistent and harmonious in all its parts, particularly in reference to the words which follow, “by her the same if she were unmarried,” &c.
Fourth. The proposed construction is contrary even to the equity doctrines, which were administered by the old Court of *548Chancery before the constitution was adopted, and when a married woman had no power to contract, except in so far as it was given in the instrument creating her separate estate. As, for example, in the case of Porcher v. Daniel, 12 Rich. Eq., 347 (as late as 1866), it was held that “where property of the wife is, by marriage settlement, surrendered to her ‘full and free disposal’ — she to have ‘the sole direction guidance thereof — she has the power, during coverture, to dispose of the same absolutely by will.” In delivering the judgment of the court, Chancellor Inglis expressed what I think was the law then, and much more certainly what the law is now. “A married woman, having a separate estate, and having also a general and absolute power of disposition over it, may charge or alienate it, or any part of it, or, partially or wholly, temporarily or permanently, divest herself of her interest in it, or in any part of it, in any of the modes in which the same kind of property or things may be legally charged or alienated, &c., by one who is sui juris; only her intention to do this must be clearly manifested,” &c. It seems to me that the unrestricted power “to alienate,” is quite as comprehensive and absolute as that given by the words “full and free disposal” ; and that if the constitution had never been adopted, but the power to “alienate” had been given in a deed inter partes, creating the separate estate of Mrs. Gwynn, it would have carried the power to use the same and to dispose of it in the manner and according to any of the different modes indicated by Chancellor Inglis. The highest court in the State, as late as 1866, said that was the law then ; and it would certainly be surprising if the provisions of the constitution, which we all know were intended to enlarge the powers of a married woman over her separate estate, should be so construed as actually to diminish those powers!!
Fifth. I have already in the case of Aultman & Taylor Co. v. Rush indicated my view of the proper construction of the act of 1870, amended in 1882, so as to give to a married woman the express power to contract as to her separate estate, and I need not repeat it here.
I think the decree below should be affirmed.
Judgment reversed.