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Dallas vs. Heard et al.

There is one class of cases that I have not up to this time noticed, and it is not necessary now that I should do so, as they do not necessarily apply to the question in this case, but as reference is made to them, not only in the adjudications to which I have referred, but by text writers in the discussion of this question, it will not be amiss to give them some attention. I allude to those cases arising upon what is most frequently called the general demands against the married woman having separate property. Sir John Leach in Greatly vs. Noble, said "it would be difficult to find either principle or authority for reaching the separate estate of a feme covert as if she were sole, without any charge, on her part, either express or implied," and in Stuart vs. Kirkland, that he "then was of opinion that a feme covert being incapable of contract, this Court cannot subject her separate property to general demands." Mr. Story, in Eq. Jur., sec. 1398, says: "In the first place, her separate property is not, in equity, liable for the payment of her general personal engagement. If, therefore, a married woman should, during her coverture, contract debts generally without doing any act indicating an intention to charge her separate property with the payment of them, Courts of Equity will not entertain jurisdiction to enforce payment thereof out of such estate during her life." This text, and the dicta to which I have referred, is calculated to mislead one, for the terms "general personal engagements," " ," "general demands," and "contracting debts," will cover every species of debt or contract made by the wife when no special charge is made upon the separate estate. The cases referred to in support of this broad rule do not support it. They are The Duke of Bolton vs. Williams, 2 Ves., 138; S. C., 4 Bro. C. 297; Jones vs. Harris, 9 Ves., 498; Stewart vs. Kirkland, 3 Madd. Ch., 387; Greatly vs. Noble, 3 Madd. Ch., 94; Aguillar vs. Aguillar, 5 Madd., 418. In all these cases, except that of Greatly vs. Noble, the feme coverts had granted annuities out of and chargeable upon their separate estates, which were declared to be void, because of the grantee's failure or neglect to make them effectual and available by a compliance with the provisions of the statute

Dallas vs. Heard et al.

under which they were taken and allowed, that of 17 George 1, ch. 26, I believe; and upon the failure of the annuities, the grantees sought to charge the separate estate of feme coverts with the re-payment of the money advanced for the same. The Court uniformly refused to allow this to be done. The principle upon which a Court of Equity lays hold of the separate property of a married woman, and charges it with the payment of her bond, note, or other obligation is this, that as she is incapable in law, as a married woman, to act, and that her bond, note, or other obligation is void, and can not be enforced against her personally, yet as she has property over which she has absolute dominion, when she deals. with another, obtains credit, and gives her obligation to pay, she is presumed to treat with respect to her separate estate, and that she intends to charge such estate with the payment of the debts she so makes, and that it is upon this presumption and intention that the credit is extended to her, and the security taken for its payment. Hence a Court of Equity, in making the separate estate liable, is but enforcing, if not the express, the implied contract of the parties. Now it is perfectly clear that in the cases above cited, cases of Bolton vs. Williams, and others, no such implied contract could be. inferred. The feme covert intended to grant an annuity, not to charge her separate estate with the re-payment of the purchase price received by her for such grant. The purchaser did not intend or expect any such security, and so the question is strongly put by Lord Elden in Jones vs. Harris, 9 Ve Tes., 496, "it is very difficult," says he, "to maintain that where her intention was not to contract a personal debt, or to charge a gross sum upon her separate estate, but the contract. was for an annuity, which contract the party dealing had it in his power to make effectual, and such as to bind her according to the intention of both, and he failed in that a Court of Equity ought to assist him, and to give him such a charge as she did not intend to give him, or he to have.

1. I doubted, and am confirmed in that by Williams vs. The Duke of Bolton, whether there is any authority that merely because a man contracts with a married woman, the

Dallas vs. Heard et al.

Court would consider him in all events as contracting with. her not as a married woman merely, but as a married woman having a separate estate." The case of Greatly vs. Noble is very different; that was a bill to charge the separate estate of a married woman with money that she obtained fraudulently, and as it was alleged that the money was invested by the trustees for the use of such married woman, the bill was sustained for the purpose of compelling the trustees to transfer the property so acquired to the plaintiffs.

From this too greatly extended reference it will be seen that the rule adopted by this Court falls far short of that of most of the cases cited, for in many of them the restraint. upon the feme covert's power of alienation of the separate estate, that was evidently intended to be imposed by the instrument creating such estate, has been disregarded by the Court, while our rule, on the contrary, is that as to her separate estate, she is a feme sole sub moda, to the extent that the instrument creating the separate estate makes her So. We might, under the adjudications, have gone further, but as there was no conflict up to the point we have gone, we could not, without a violation of all precedent, have failed to go as far as we have. I mean, of course, of the precedent of the English Chancery Courts. The American cases I have not considered, nor shall, for they are so conflicting, and at such variance, that they either furnish no rule at all or leave us at liberty to adopt such as we might deem the most just and equitable. Indeed, did we not feel ourselves constrained by precedent we should, notwithstanding, adopt the rule that we have, as affording the most ample protection to the married woman, and at the same time extending to her the fullest and most perfect enjoyment of her separate estate. Under it the parents or friends making the settlement may so guard her estate that she can not touch or convert the corpus, or they may, by confiding in her intelligence and capacity to manage and protect her own interests, clothe her with the same power of control and management as if she were a feme sole, and this they will

Dallas vs. Heard et al.

do when they give to her property, to her sole and separate use, without restriction as to its use and enjoyment.

2. The next question, as to whether the plaintiff, he being no party to the agreement, can enforce this agreement against these defendants, in equity, is one which is no longer open, for it is controlled by the decision of this Court at the Macon January Term, 1861, of Bell vs. McGrady, et al. The firm Gardner & Kendrick, parties in a livery stable, buggies and horses, etc., sold and conveyed the livery stable and their entire stock to McGrady, one of the defendants, McGrady agreeing, in part consideration of such purchase, to pay all the debts and liabilities of the firm of Gardner & Kendrick. Bell, the holder of a note on G. & K., filed his bill against McGrady to compel a payment of the note on Gardner & Kendrick, both of whom were insolvent. This Court, on demurrer, sustained the bill, holding that "it was proper for this creditor to go into equity to enforce this agreement in behalf of himself and others." Behind a decision directly in point, as we hold this to be, this Court will not go. In that case, Gardner & Kendrick, as Mrs. Lane in this, had parted with the entire dominion of the property. The agreement was not a mere declaration of intention in favor of the creditors, that might be re-called or controlled by the grantor; but it was an executed trust, complete at law, and in this the cases differ from the many cases of voluntary assignment for the payment of debts, etc., to which reference has been made. See Ellison vs. Ellison, 6 Vesey, 662; Garrard vs. Lord Lauderdale, 4 Russ., and My., (11 Eng. Ch.,) 453-4; Nicoll vs. Mumford, 4 John. Ch., 529; Moses vs. Murgatroyd, 1 John., Ch., 129; Fortesque vs. Barnett, 3 Myl. and K., (10 Eng. Ch.,) 42; Story's Eq. Jur, sec. 793. a.

3. Mrs. Lucinda Lane being dead, and no administration being had, and no necessity for one, as she had no property to administer, are sufficient excuses for not making her a party to the bill.

The objection as to Bolling A., Joseph S., and George M. Lane not being parties, was not insisted upon, nor in fact was that as to Mrs. Lane; besides, the objection does not

Word et al., vs. Mitchell, ex'or.

seem to exist, as all these persons seem, from the record, to be parties, and to have been served with the bill. The only necessary parties to this bill are those who made this agreement, who received the life estate of Lucinda Lane, and these seem to be proved; if they are not, they ought to be. Let the judgment be reversed.

JOHN S. WORD, et al., plaintiff in error, vs. GILES MITCHELL, executor, etc., defendant in error.

A legacy failing, either by lapse or because void at law, falls into the residuum and passes to the residuary legatee, and not to the next of kin.

In equity, in Jackson Superior Court. Decision on demurrer made by his Honor Judge HUTCHINS, at August Term, 1860.

The question made in this case arises out of the following state of facts:

William D. Martin died testate. The sixth item of his will, being void under the laws of Georgia against the manumission of slaves, was not proven as part of the will before the Ordinary, and is in these words:

"I desire that my faithful and trusty negroes, Gabe and Willis, also Blake and Henry, sons of Gabe, be free as far as is consistent with the laws of this State, and I give to their use and benefit, as a home during life, the following described quantity of land: a part of tract on which I now live, [describing it,] which said land, at the death of said negroes, shall revert to my original tract. I also give to the use and benefit of said negroes four cows of their choice [and other personal property, describing it]. I hereby appoint Giles Mitchell guardian for said negroes, with authority to trade for them, and otherwise control their business as guardian, and as compensation for such care and trouble, I

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