Clerke, J.
The special term has found that the note in question was not made or procured under the coercion of the defendant’s husband or any other person, and that the same was made at the request of her husband, for his benefit and as his surety. The note is in these words: “ Thirty days after date I promise to pay to the order of M. Lichtenstein [her husband] one hundred and fifty-two dollars seventeen cents, at 359 Canal street, value received, for the benefit of my separate real and personal estate, and the said sum is hereby declared to be a charge thereupon and payable therefrom.” It is alleged in the complaint that the defendant had separate real and personal estate, and this is not denied in the answer
I do not agree with the justice at special term, that the estate intended to be charged should be specifically described. By the terms of the contract the wife’s whole separate estate is charged; it is not necessary to specify the property, unless she intended to charge only a specific portion of it. It cannot be denied that a married woman can charge the whole or a portion of her separate estate as a surety for her husband. Of course, the intention to charge her separate estate must
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"be declared in the very contract which is the foundation of the charge. In the present case this intention is distinctly declared in the contract upon which this action is founded. The contract, however, declares that the consideration "was for the benefit of her separate estate; instead of which, it is found by the justice to have been given to secure the payment of the existing indebtedness of her husband, for the amount of the note. In other words, she signed the note as surety for her husband. The only question then is, can her separate estate be exempt from liability, because the contract, although it charges her separate estate, does not state the real consideration ? Suppose the words “ for the benefit of my real and personal estate” were omitted in the note, leaving the words
“ value received” and the words charging her separate estate; would not the plaintiff be entitled to recover ? These words do not vitiate the note. She acknowledges that value was received, and it is proved that she signed the note as surety for her husband;—a consideration which the law recognizes as sufficient to bind her separate estate. A mistake in describing the particular consideration does not avoid any contract, provided a valid consideration existed, which was the real foundation of the contract. I admit a wife cannot estop herself by a contract which is void; but it is a mistake, I think, to say that a misstatement of the consideration makes it void. The act of 1860 is not applicable to a charge on the separate estate of a wife; and if it was, the husband’s consent is satisfactorily shown, when it appears the note was given for his benefit, and was indorsed and transferred by him.
The judgment should be reversed and a new trial ordered; costs to abide the event.
Sutherland, J. concurred.