bind her husband, and when she contracts so as bind her separate estate. There is no trouble when she expressly stipulates at the making of the contract which shall be bound, but when there is no express stipulation or when her contract can be construed so as to bind either her husband or her separate estate, there is some question and room for distinction.

2

The lead in departing from the English rule was taken by the court of appeals of South Carolina, which held that a married woman has no power over her separate estate, and no capacity to contract or incur debts, but such as is given by the instrument creating the estate; and that unless the instrument expressly provides that the estate shall be liable for her debts and contracts, or, in the absence of this, that the obligation was incurred to effectuate the object and purpose of the trust, the estate is not liable for her contracts, written or unwritten, and as her person is not bound, such obligations are null and void. Following this, Chancellor Kent,3 advanced the opinion that the English cases were so floating and contradictory as to leave him free to adopt the true principle and that instead of holding that the wife is a feme sole to all intents and purposes as to her separate property, she is limited to the power given in the instrument. Instead of holding that she has an absolute power of disposition unless specially restrained by the instrument the proposition would be more correct, namely, that she has no power but what is specially given, and to be exercised only in the mode prescribed, if any such there be. Her incapacity is general and the exception is to be taken strictly, and to be shown in every case because it is against the general policy and immemorial doctrines of the law.4

2 Ewing v. Smith, 3 Des. 417 in 1811. This case was doubted in Trustees of Frazier v. Center, 1 McCord. Ch. 270 in 1826, but in Magood v. Johnston, 1 Hill Ch. 228 in 1833, and in Robinson v. Ex'rs. of Dart, Dudly Eq. 128 in 1838. Harper Ch. said that since Ewing v. Smith, there was no doubt that a feme court has no power but such as is conferred by the instrument. This has been followed since Clark v. MaKenna, Chev. Eq. 163; Reid v. Lamar, 1 Strob. Eq. 27; Rachell v. Tompkins, 1 Strob. Eq. 114; Cater v. Eveleigh, 4 Des. 19; James v. Magrant, 4 Des. 591; Montgomery v. Eveleigh, 1 McCord. 267; Adams v. Mackly, 6 Rich. Eq. 75; Magood v. Johnson, 1 Hill Ch. 228.

8 In 1817 case of Methodist Episcopal Church v. Jacques, 3 Johns Ch. 78; Same case in 17 Johns Ch. 548.

4 Kelly Contracts of Married Women, 254.

5

On appeal to the court of errors, Chancellor Kent was reversed and the opinion in harmony with the English rule was approved that unless specially restrained by the instru ment creating the separate estate, a married woman is with respect to that estate a feme sole in equity, and may dispose of such estate without the consent or concurrence of her trustees, and charge it by her engagements when she indicates her intention to affect it and the specification of any particular mode of exercising her disposing power, does not deprive her of any other mode of using that right, not expressly or by necessary construction negatived in the instrument. This rule was recognized and followed. Whilst this decision established the doctrine that a married woman's agreement would bind her separate estate when she, in that agreement, "sufficiently indicates her intention" to affect it, the courts had not, at this time, directly decided the question whether or not her general engagements were binding on her separate estate. Since then however, this question has been decided in the affirmative and and the broad rule laid down, that a married woman's contracts would be valid when entered into with reference to or upon the faith and credit of the separate estate, or entered into with the intent to make the estate the debtor.

8

7

Subsequently it was held that not only must a married woman indicate her intention to charge her separate estate, but that intention must be declared in the very contract which is the foundation of the charge, or the consideration must be for and going to the direct benefit of the separate estate itself. This was approved, and then her intention express5 Jacques v. Meth. Church, 17 Johns Ch. 548. 6 Dyett v. N. A. Coal Co., 20 Wend. 570; Powell v. Murry, 2 Edw. 636, 10 Barb. 597; Wadhams v. Society, 2 Kern. 415; Albany Ins. Co. v. Bay. 4 Comst. 9; Cruger v. Cruger, 5 Barb. 227; Gardner v. Gardner, 22 Wend. 526; Vanderheyden v. Mallary, 1 Comst. 462; Strong v. Skinner, 4 Barb. 546; Guild v. Peck, 11 Paige 475; Whiteall v. Clark, 2 Edw. 149; N. A. Coal Co. v. Dyett, 7 Paige 9; Cummings & P. v. Williamson, 1 Sandf. 17; Dickeman v. Abraham, 21 Barb. 551; Coon v. Brook, 21 Barb. 546; Curtis v. Engel, 2 Sandf. 287; Know v. McComley, 10 Paige 343; Calvin v. Carries, 22 Barb. 371; Goodall v. McAdams, 74 How. Pr. 885.

7 Yale v. Dederer, 22 N. Y. 451; 18 N. Y. 265: 21 Barb. 286; 68 N. Y. 329; See Todd v. Lee, 15 Wis. 865.

8 White v. McNutt, 33 N. Y. 371; Owen v. Cawley, 36 N. Y. 600; Ballin v. Dillage, 37 N. Y. 35; Fowler v. Seaman, 40 N. Y. 592; Com. Ex. Ins. v. Babcock, 42 N. Y. 613; Frickling v. Rolland, 33 N. Y. 499; Se

ed verbally was admitted.9 After this the court regretted 10 that the doctrine was so settled and in one case 11 the intention to charge was allowed to be inferred from circumstances; but taking all the decisions together, the conclusion is that the English doctrine as heretofore stated is the rule in this State.12

The American doctrine as first advanced in South Carolina, and expounded by Chancellor Kent, that a married woman has no power over her separate estate but such as is given by the instrument creating it, and she can not therefore, charge the estate with her debts or contracts, unless the instrument expressly permits it, has been fully adopted in Pennsylvania, 13 South Carolina, Tennesee, 14 Misdelling v. Powers, 39 Barb. 555; Sedlie v. Vrooman, 41 Barb. 109; White v. Story, 43 Barb. 154; Bank v. Scott, 59 Barb. 641; Hansee v. Dewitt, 63 Barb. 53; Bogart v. Gulick, 65 Barb. 323; 45 How. Pr. 385; Noyes v. Blakeman, 2 Seld. 567; Rogers v. Ludlow, 3 Sandf. 104; L'Amoreaux v. Van Rensselaer, 11 Barb. Ch. 34.

9 Maxon v. Scott, 55 N. Y. 247; Weir v. Groat, 4 Hun. 193; Bank v. Miller, 63 N. Y. 639; Rohebach v. Ins. Co. 62 N. Y. 47

10 M. B. & M. Co. v. Thompson, 58 N. Y. 80. 11 Conlin v. Cantrell, 64 N. Y. 217.

12 Loomis v. Ruck, 14 Abb. Pr. N. S. 385; Deck v. Johnson, 1 Abb. App. Cas. 497; Shorter v. Nelson, 4 Lans. 114; Manchester v. Sahler, 47 Barb..155; Isham v. Schafer, 60 Barb. 317; Barnett v. Lichtenstein, 39 Barb. 194; Ainsley v. Mead, 3 Lans. 116; Corning v. Lewis, 54 Barb. 51; Smith v. Allen, 1 Lans. 101; Sexton v. Stonvenel. 35 Barb. 507; Ogden v. Blydenburgh, 2 Hilt. 182; Porter v. Mount, 41 Barb. 561; Adams v. Honness, 62 Barb. 326; Barton V. Beer, 35 Barb. 78; Leavett v. Peel, 25 N. Y. 474; Gibson v. Walker, 20 N. Y. 476. The exact question in Yale v. Sederer, was whether a married woman, having a separate estate, could create a charge upon that estate by giving a promissory note for the debt of her husband intending thereby to charge her separate estate, but without indicating this intention in any manner by the contents of the note and it was held that she could not. This case is in 21 Barb. 286; 31 Barb. 525; 18 N. Y. 265; 22 N. Y. 450.

13 Lancaster v. Dolan, 1 Rawle, 231; Syne's. Ex. v. Crouse, 1 Barr. 111; Rogers v. Smith, 4 Barr. 93; Wright v. Brown, 8 Wright 244; Wells v. McCall, 14 P. F. Smith, 207; Thomas v. Folwell, 2 Whart. 11; Wagner's Est. Ashm. 448; Penn. Co. v. Foster, 11 Casey 134; Chrisman v. Wagoner, 9 Barr. 473; McMullen v. Beatty, 6 Smith, 389: Wallace v. Caston, 9 Watts. 187; Darrance v. Scott, 3 Whart. 306; Sharpless v. Westchester, 1 Grant 257; Curry v. Bolt, 3 Smith 400; Johnson v. Fritz, 8 Wright 449; Gamble's Est., 1 Parsons 489; Lippincott v. Hopkins, 7 Smith, 328; Murray v. Keyes, 11 Casey, 384; Hough v. Jones, 8 Casey, 432; Brunner's Appeal, 11 Wright, 67; Mahon v. Garmley, 12 Harris, 80; Moore v. Cornell, 18 Smith, 320; Peltit v. Fritz, 9 Casey, 118; Weiman v. Anderson, 6 Wright 311; Johnson v. Johnson, 1 Grant, 468; Hinney v. Phillips, 14 Wright 382; Steinman v. Ewing, 48 Pa. St. 63; Hartman v. Ogborn, 54 Pa. St. 120; Cummings v. Miller, 3 Grant 146; Remfelt v. Clemens, 46 Pa. St. 455; Park v. Kleeber,

sissippi,15 Rhode Island, 16 and North Carolina,17 whilst all the other States adopt in the main, the English doctrine, with little or no exception.18

37 Pa. St. 251; Keeney v. Goode, 21 Pa. St. 349; Walker v. Coover, 65 Pa. St. 439; Thomas v. Falwell, 2 Whart. 11.

14 Ware v. Sharp, 1 Swan 489; Margan v. Elam, 4 Yerg. 375; Marshall v. Stevens, 8 Humph. 459; Sitton v. Baldwin, 8 Hump. 209. Kirby v. Miller, 4 Caldw.

4.

15 Armstrong v. Stovel, 26 Miss. 275; Doty v. Mitchell, 9 Sm. & M. 435; Montgomery v. Bank, 10 Sm. & M. 567; Pallen v. James, 45 Miss. 129; Whitworth v. Carter, 43 Miss. 61; Dunbar v. Meyer, 43 Miss. 676; Robertson v. Bruner, 24 Miss. 242; Witcher v. Wilson, 48 Miss. 585.

16 Metcalf v. Cook, 2 R. I. 355.

17 Harris v. Harris, 7 Ired. Eq. 311; Frazier v. Brownlow, 3 Ired. Eq. 237; Newlin v. Freeman, 4 Ired. Eq. 312; Knox v. Jordan, 5 Jones Eq. 175; Rog. ers v. Hinton, Phil. Eq. 101; Pippen v. Wesson, 74 N. C. 442; Atkinson v. Richardson, 74 N. C. 458.

18 Alabama.-Gunter v. Williams, 40 Ala. 561; Paulk v. Wolfe, 84 Ala. 541; Baker v. Gregory, 28 Ala. 544; Osley v. Ikelheimer, 26 Ala. 332; Brame v. v. McGee, 46 Ala. 174; Nunn Admr. v. Givhan, 45 Ala. 375; Wilkeson v. Cheatham, 45 Ala. 341; Short v. Battle, 52 Ala. 456; Cawles v. Pallard, 51 Ala. 445; Puryear v. Puryear, 16 Ala. 486. Arkansas.-Aswald v. Moore, 19 Ark. 257; Dobbin v. Hubbard, 17 Ark. 196; Buckner v. Davis, 29 Ark. 447; Palmer v. Rankin, 30 Ark. 771. California.-Miller v. Newton, 23 Cal. 554; Maclay v. Love, 25 Cal. 367. Connecticut. -Imlay v. Huntington, 20 Conn. 149; Platt v. Hawkins, 43 Conn. 143; Wells v. Tharman, 37 Conn. 318; Taylor v. Shelton, 30 Conn. 122; Buckingham v. Moss, 40 Conn. 461. Florida.-Smith v. Paythress, 2 Fla. 92; Caulk v. Fox, 13 Fla. 148; Alston v. Rawles, 13 Fla. 117; Abernathy v. Abernathy, 8 Fla. 243; Sanderson v. Jones, 6 Fla 430; Maiben v. Bobe, 6 Fla. 381; Lewis v. Yale, 4 Fla. 418. Georgia.-Fears v. Brooks, 12 Ga. 195; Wylly v. Collins, 9 Ga. 223; Weeks v. Sego, 4 Ga. 201; Dallas v. Heard, 32 Ga. 604; Roberts v. West, 15 Ga. 123; Morrison v. Solomon, 52 Ga. 206; Huff v. Wright, 39 Ga. 41; Seabrook v. Brady, 47 Ga. 650; Van Arsdale v. Joiner, 44 Ga. 41. Illinois.-Pomeroy v. Ins. Co. 40 Ill. 398; Carpenter v. Mitchell, 50 Ill. 470; Schmidt v. Postel, 63 Ill. 58: Furnece v. McGovern, 78 Ill. 338; Williams v. Hugunin, 69 Ill. 214. Indiana.-Reese v. Cochran, 10 Ind. 195; Cox v. Wood, 20 Ind. 54; Abdill v. Ab. dill, 26 Ind. 287; Kuntrowitz v. Prather, 31 Ind. 105; Hasheagan v. Specker, 36 Ind. 414; Hobson v. Davis, 43 Ind. 258; Shannon v. Bartholomew, 53 Ind. 54. Iowa.-Patton v. Kinsman, 17 Iowa 428. Kansas. Knaggs v. Maston, 9 Kan. 532; Wicks v. Mitchell, 9 Kan. 88; Deering v. Boyle, 8 Kan. 525. Kentucky.Bell v. Keller, 13 B. Mon. 381; Lillard v. Turner, 16 B. Mon. 374; Burch v. Breckenridge, 16 B. Mon. 482; Coleman v. Walley, 16 B. Mon. 320; Jarman v. Wilkenson, 7 B. Mon. 293; Song v. White, 5 J. J. Marsh. 226; Sweeney v. Smith, 15 B. Mon. 325. Louisiana.-See Barbet v. Roth, 16 La. Ann. 271; Maryland.-Early cases held the American rule, Farr v. Williams, 4 Md. Ch. 68; Miller v. Williams, 5 Md. 219; But late cases hold the English rule, Cooke v. Hasbands, 11 Md. 492; Hall v. Eccleston, 37 Md. 520. Massachusetts follows New York.-Willard v. Eastham, 15 Gray 328; Rogers v. Ward, 8 Allen 387; Tracy v. Keith, 11 Allen 214; Allen v. Fuller, 117 Mass. 402. Michigan.-Powers v. Russell, 26 Mich. 179; Rankin v. West, 25 Mich. 195; De Vries v. Conklin,

Prior to the statutory enactments in this country on this subject, there were these two well-defined rules-one the opposite of the other, but were confined to the Middle and most of the Southern States; the New England and Western States having no general equity jurisprudence, and in the States originally governed by French or Spanish laws the community system existed.

Legislation was slow and experimental, the first step being to empower a married woman, when deserted by her husband, to contract, sue, and be sued as if unmarried. 19 In 1848, the legislation of New York and Pennsylvania revolutionized the system providing that the property which a married woman held before marriage and such as she may obtain during marriage should be her sole and separate property. From this time onward the tendency of legislation is to make a married woman a feme sole as to her contracts with the remedy against her property, and a feme sole quoad the capacity to enjoy and dispose of her separate estate.

These statutes can be classified into (1), statutes which make the wife the owner at law, of the property she had before and acquired during marriage, instead of letting it

22 Mich. 255; Dennison v. Gibson, 24 Mich. 187. Minnesota.-Pond v. Carpenter, 12 Minn. 432; Speneer v. R. R. Co., 22 Minn. 32; Sanford v. Johnson, 24 Minn. 172. Missouri.-Whiteside v. Cannon, 23 Mo. 457; Segond v. Garland, 23 Mo. 547; Coats v. Bobinson, 10 Mo. 757; Schafarth v. Ambs, 46 Mo. 114; ClafJin v. Van Wagoner, 32 Mo. 252; Miller v. Brown, 47 Mo. 504; Kimm v. Wiepert, 46 Mo. 532; Lincoln v. Rowe, 51 Mo. 571; Bank v. Taylor, 62 Mo. 338; WhiteJy v. Stewart, 63 Mo. 363; Gage v. Gates, 62 Mo. 417; Radgers v. The Bank, 69 Mo. 563; Gay v. Ihm, 69 Mo; 584; New Hampshire.-Hutchins v. Colby, 43 N. H. 159; Nims v. Bigelow, 45 N. H. 343; Vogt v. Ticknor, 48 N. H. 242; Batchelder v. Sargent,47 N. H. 262. New Jersey.-Leacraft v. Hedden, 3 Green. 552; Johnson v. Cummins, 1 C. E. Green 104; Armstrong v. Ross, 5 C. E. Green 109; Perkins v. Elliot, 8 C. E. Green 526; Pentz v. Simonson, 2 Beas. 232; Oakley v. Pound, 1 McCarter 178. Ohio.-Hardy v. Van Harlingen, 7 Ohio St. 208; Phillips v. Graves, 20 Ohio St. 390; Armston v. Williams, 35 Ohio St. 296. Texas. -Milburn v. Walker, 11 Tex. 329. Vermont.-Patridge v. Stocker, 36 Vt. 117. Virginia.-West v. West, 3 Rand. 373; Vizonneau v. Pegram, 2 Leigh. 183; Williamson v. Beckham, Leigh. 20; Leigh v. Bank U. S., 9 Leigh. 200; Whiteing v. Rust, 1 Gratt. 488; Ellis v. Baker, 1 Rand. 47; Woodson v. Perkins, 5 Gratt. 345; Nixon v. Rose, 12 Gratt. 431; Penn v. Whitehead, 17 Gratt. 503; Muller v. Bailey, 21 Gratt. 528; Burnett v. Hawke, 25 Gratt. 486; Darnall v. Smith, 26 Gratt. 878. West Virginia.-Radford v. Carwile, 13 W. Va. 572. Wisconsin.-Todd v. Lee, 15 Wis. 380; 16 Wis. 484. 19 See Jackson v. Hubbard, 36 Conn. 10; Statute of Maine, 1821; of Tenn. in 1836; of Miss. in 1839; of Mich. 1844.

pass to the husband by the rules of the common law, (2) statutes which merely exempt the property from her husband's debts, contracts or obligations and (3) statutes which not only make her the owner at law of the property, but expressly empower her to contract and be contracted with at law as a feme sole.

To prevent the common law from taking effect the property would be settled upon her in trust for her sole and separate use, which would be effective and enforceable in courts of equity; and to abrogate the same common law rules the married women statutes were enacted. 20

The trust in equity and the statutes at law aim to accomplish the same object and results, the former by means of equity, the latter by means of the law, both creating a separate estate for the same purpose; the former when the parties voluntarily make the contract, the latter without an agreement, whenever the property exists.21 These statutes, therefore, abrogate the common law to the extent of the interests, rights and powers conferred by them, but they do not interfere or invade the equity doctrines for the reasons above given;22 hence it follows that the common law prevails except in so far as these statutes expressly or by necessary implication change it, or in other words, except in so far as removed by the statute; just the same as applied to the separate estate in equity, that the common law prevailed, except in so far as the trust gave to equity jurisdiction to change it; although it has been held that such construction should be given as will effectuate the intention of the legislature and the purpose of the act.23 And

20 Snyder v. People, 26 Mich. 108; Phillips v Grocer, 20 O. St. 381; Mitchell v. Otny, 28 Mich. 239; Todd v. Lee, 15 Wis. 380.

21 Blevens v. Buck, 26 Ala. 292; Calvin v. Currier, 22 Barb. 371; Clowson v. Clowson, 22 Ind. 229; Bank v. Williams, 46 Miss. 625; Yale v. Dederer, 18 N. Y. 265; Ballin v. Dillaye, 37 N. Y. 35; Peake v. LaBaw, 5 C. E. Green 282.

22 Brookings v. White, 49 Me. 479; Edwards v. Stevens, 3 Allen 315; Lard v. Parker, 3 Allen, 129; Perkins v. Perkins, 62 Barb. 531; Hurd v. Cass, Barb. 366; Berle v. Rampasher, 5 Duer 183; Mallet v. Parkham, 52 Miss. 922; Carly v. Dixon, 51 Miss. 599; Staton v. New, 49 Miss. 309; Whitworth v. Carter, 43 Miss. 72; Mahon v. Garmley, 24 Pa. St. 82; Diver v. Diver, 6 Smith 106; Eldridge v. Preble, 34 Me. 148; Smith v. Henry, 35 Miss. 369; Alverson v. Jones, 10 Cal. 9; Farrell v. Patterson, 43 Ill. 52; Stanton v. Kirch, 6 Wis. 338; Smith v. Hewett, 13 Iowa 94; Johnson v. Runyon, 21 Ind. 114; Stewart v. Bail, 83 Miss. 154.

23 Power v. Lester, 17 How. Pr. 413; Goss v. Cahill,

Under the third class of statutes, providing that a married woman may contract and sue and be sued at law, as a feme sole, she has the full power given and the reciprocal responsibilities; and hence the equity doctrines do not apply.26 Under the second class of statutes, which merely exempts her property from her husband's debts, she has no power of contract or legal ownership. other statutes merely give to the wife a separate estate at law instead of letting the property pass to the husband under the common law.27 Hence the legal title vests in the wife, as a wife and not as a person sui juris, and does not invest her with the general power of contract;28 nor with power to make per

All

42 Barb. 310; Bergey's Appeal, 10 Smith 408; Rateliff v. Douglass. 24 Miss. 181; Lee v. Bennett, 31 Miss. 119; Whitworth v. Carter, 43 Miss. 61; Huff v. Wright, 39 Ga. 43; Stone v. Gazzam, 46 Ala. 275.

24 Walker v. Reamy, 12 Casey 410; Schindel v. Schindel, 12 Md. 108; Cole v. Van Riper, 44 Ill. 58; Dunning v. Pike, 46 Me. 461.

25 Pippen v. Wesson, 74 N. C. 442; Davis v. Bank, 5 Neb. 247; Pond v. Carpenter, 12 Minn. 432; Wooster v. Narthrup, 5 Wis. 131; Snyder v. People, 26 Mich. 108; Phillips v. Graves, 20 O. St. 381; Mitchell v. Otey, 23 Miss. 239.

26 Willard v. Eastham, 15 Gray 328; Rogers v. Ward, 8 Allen 387; Durfee v. McClurg, 6 Mich. 223; Duren v. Getchell, 55 Me. 241; Emerson v. Clayton, 82 Ill. 493; Cookson v. Toole, 59 Ill. 515; Alvin v. Lard, 39 N. H. 196; Batchelder v. Sargent, 47 N. H. 262; Bailey v. Pearson, 9 Fost.77; Hammond v. Cor. bett, 50 N. H. 501; Eckert v. Reater, 4 Vroom 266; Long v. Long, 1 McCarter 462; Tillinan v. Shackelton, 15 Mich. 447; Beard v. Rudolph, 29 Wis. 136; Dodge 4. Silverthorn, 12 Wis. 644; Farr v. Sherman, 11 Mich. 33; De Vries v. Conklin, 22 Mich. 255.

27 Johnson v. Cummins, 1 C. E. Green 97; Legnard v. Rogan, 20 Wis. 540; Barton v. Bear, 35 Barb. 78; Cookson v. Toole, 59 Ill. 518; Bradford v. Greenway, 17 Ala. 797.

28 Jones v. Crossthwait, 17 Iowa 393; McKee v. Reynolds, 26 Iowa 578; Johnson v. Rugg, 18 Iowa 137; Wolf v. Van Metre, 19 Iowa 131; Tracy v. Keith, 11 Allen 214; Lard v. Parker, 3 Allen, 127; Hovey v. Smith, 22 Mich. 170; Albin v. Lord, 39 N. H. 196; Ames v. Foster, 42 N. H. 381; Marvis v. Palmer, 32 Miss. 278; Pallen v. James 45 Miss. 129; Stephenson v. Asburne, 41 Miss. 119; Whitworth v. Carter, 43 Miss. 679; Davis v. Foy, 7 Am. & M. 64; Pond v. Carpenter, 12 Minn. 430; Kavenaugh v. Brown, 1 Fox. 481; Wooster v. Northrup, 5 Wis. 245; Yale v. Dederer, 22 N. Y. 450; Owen v. Cawley, 36 N. Y. 600;

sonal contracts; but she can charge this legal separate estate, created by statute, to the same extent and for the same purposes that she could have charged in equity, her equitable separate estate created by instrument of trust,29 for the reason, amongst others, that the statute does not interfere with the equity jurisdiction, 30 or change the status of marriage, except as to the husband's property interests31 or change the common law disability to contract except in so far as the statute expressly confers it.

As a married woman under such statutes, takes a separate estate at law it has been held by some courts that it logically follows that any act or contract which enables her to use, hold and enjoy such estate will bind that separate estate at law; or in other words, statutes which merely confers the right to hold and enjoy her property, instead of letting it pass to her husband under the common law, also confers the power to make at law such contracts and incur such obligations as are necessary to hold and enjoy such property enforceable at law, because such contrac are incident to the right conferred, and the grant of a thing carries with it every power necessary to make such grant effective.32 Robinson v. Rivers, 9 Abb. Pr. 144, Parker v. Lambert, 31 Ala. 89; Alexander v. Saulsbury, 37 Ala. 375; Riel v. Overall, 39 Ala. 138; Eckert v. Renter, 4 Vroom 266, Bauer v. Bauer, 40 Mo. 61; Morgan v. Andriatt, 2 Hilton 431; Switzer v. Valentine, 4 Duer. 96; Glyde v. Keister, 1 Grant 465; Glass v. Warwick, 4 Wright 140, Caldwell v. Walters, 6 Harris 79; O'Dailey v. Morris, 31 Ind. 111; Stevens v. Parish, 29 Ind. 260; Coate v. McKee, 26 Ind. 223.

29 Todd v. Lee, 15 Wis. 365; 16 Wis. 480; Johnson v. Cummins, 1 C. E. Green 97; Yale v. Dederer, 18 N. Y. 265; Ballin v. Dillaye, 37 N. Y. 35; Albin v. Lord, 39 N. H. 196; Peake v. La Baw, 6 C. E. Green 269, Murray v. Keyes, 11 Casey 884; Mahon v. Gormley, 12 Harris 80; Barnett v. Lichtenstein, 39 Barb. 194; Kimm v. Weippert, 46 Mo. 532; Hooper v. Smith, 23 Ala. 639; Calvin v. Currier, 22 Barb. 371; Wicks v. Mitchell, 9 Kas. 80; Perkins v. Elliott, 8 C. E. Green 526; Smith v. Howe, 31 Ind. 233; Johnson v. Tutewiler, 35 Ind. 353; Patton v. King, 26 Tex. 685.

30 Johnson v. Cummins, 1 C. E. Green 97; Leonard V. Rogan, 20 Wis. 540; Barton v. Bear, 35 Barb. 78; Caokson v. Toole, 59 Ill. 515.

31 Walker v. Reamy, 12 Casey 410; Schindell v. Schindell, 12 Md. 108; Cole v. Van Riper, 44 Ill. 58; Dunning v. Pike, 46 Me. 461; McLaran v. Hall, 26 Iowa 297; Peake v. La Baw, 6 C. E. Green 269; Armstrong v. Ross, 5 C. E. Green 109.

32 Selph v. Howland, 23 Miss. 269; Robertson v. Bruner, 24 Miss. 244; Armstrong v. Stovall, 26 Miss. 280; Ingoldsby v. Juan, 12 Cal. 575; Maclay v. Love, 25 Cal. 381; Bodley v. Ferguson, 30 Cal. 518; Carpenter v. Mitchell, 50 Ill. 473; Wilkinson v. Cheatham, 45 Ala. 341; Burley v. Pearson, 9 Foster 87:

But the weight of authority 33 is against this position for the reason, (1) this is not the purpose of the statute; (2) the power to bind the estate comes by implication from the equity doctrine but the power to control does not; (3) the disability at common law remains unless removed by the statute.

It therefore follows that a married woman can bind her legal separate estate-the separate estate created by statute-by the same contracts and to the same extent that the equitable separate estate could formerly have been charged in equity; hence, in those States where the English principle prevails the rule is that unless restrained by the statute a married woman has the full capacity to contract with respect to her separate estate; and in those States where the American doctrine is adopted, the rule is that unless the statute expressly or by necessary implication confers the power to contract, a married woman, having a separate estate under the statute, has no power to make contract but such as are given by the statutes.

Under both of these rules, contracts necessary and proper to enable a married woman to hold and enjoy her separate estate such as ontracts for needed improvements or repairs, 34 contracts beneficial and necessary for

West v. Laraway, 28 Mich. 465; Scott v. Scott, 13 Ind. 227; Reese v. Cochran. 10 Ind. 196; Patten v. Patten, 75 Ill. 449; Douglas v. Gausman, 68 Ill. 172; Huls v. Buntin, 47 Ill. 396; Southard v. Plummer, 36 Me. 64; Williams v. MoGrade, 13 Minn. 46; Conway v. Smith. 13 Wis. 131.

33 See opinion of Chancellor Green in Johnson v. Cummins, 1 C. E. Green 97; Peake v. La Baw, 6 C. E. Green, 269; Armstrong v. Ross, 5 C. E. Green, 109; Yale v. Dederer, 18 N. Y. 272; Davis v. Millett, 34 Me. 429; Ayer v. Warren, 47 Me. 217; Lee v. Lanahan, 59 Me. 478; Cookson v. Toole, 59 Ill. 515; Todd v. Lee, 15 Wis. 365; Albin v. Lord, 39 N. H. 196; Batchelder v. Sargent, 47 N. H. 262; Emorson v. Clayton, 82 Ill. 493; Durfee v. McClung, 6 Mich. 223; Duren v. Getshell, 55 Me. 241; Albin v. Lord, 39 N. H. 196; Emerson v. Clayton, 32 Ill. 493; Eckert v. Reuten, 4 Vroom 266; Long v. Long, 1 McCarter 462; Leonard v. Rogan, 20 Wis. 540; Kelly on Cont., Married Woman 268 and cases cited.

34 Wells v. Thorman, 37 Conn. 318; Fairbanks v. Mothersell, 60 Barb. 406; Withers v. Sparrow, 66 N. C. 129; Falkner v. Colshear, 39 Ind. 201; Copp v. Stewart, 38 Ind. 479; Lindley v. Cross, 31 Ind. 106; Morse v. Mason, 103 Mass. 560; Ainsley v. Mead, 3 Lans. 116; Robinson v. Hoffman. 15 B. Mon.80; Hughes v. Peters, 1 Cold. 67; Felter v. Wilson, 13 B. Mon. 96; Finley's Appeal, 17 P. F. Smith 453; Woodward v. Wilson, 18 P. F. Smith 208; Corning v. Lewis, 36 How. 425; Matter v. Lillie, 24 How. 264; Lyman v. Cessford, 15 Iowa 229; Bar'ts Appeal, 5 Smith 336. And if the improvement results from the voluntary labor of the husband his creditors cannot touch

the estate, and in some cases contracts where the benefit inures to herself or to the

estate 36 are valid and binding.

In the States following the English doctrine a married woman's contracts and obligations made, not on the husband's account, nor by her as his agent, but on her own account with respect to her separate estate, so as to make the estate the debtor will bind such separate estate enforceable in equity; hence a specific charge such as a mortgage or lien will be binding,37 and when she has expressly charged the payment of the obligation on the estate, 38 and for her bond, bill, note, or written obligation, 39 and any contract made

estate or the improvement. Sherman v. Elder, 23 N. Y. 381; Knapp v. Smith, 27 N. Y. 518; Musser v. Gardner, 16 P. F. Smith 242; Lewis v. Johns, 24 Cal. 98; Conway v. Smith, 13 Wis. 125; Fowler v. Seaman, 40N. Y. 592; Johnson v. Tateweiler, 35 Ind. 353.

35 Frazier v. Brownlow. 3 Ire. Eq. 237; Gardner v. Gardner, 22 Wend. 526; Franklin v. Beatty, 27 Miss. 347; Burr v. Swan, 118 Mass. 588; Verrill v. Parker, 65 Me. 578; Majar v. Symmes, 19 Ind. 117; Owen v. Cawley, 42 Barb. 105; Milburn v. Walker, 11 Tex. 329; Allen v. Fuller, 118 Mass. 402; Nash v. Mitchell, 8 Hun. 471; Spencer v. Humiston, 9 Hun. 71; Moore v. McMillan, 23 Ind. 78; Morse v. Mason, 103 Mass. 560; Packer v. Kane, 4 Allen 346.

36 James v. Crossthwait, 17 Iowa 397; Taylor v.. Shelton, 30 Conn. 122; Carter v. Howard, 39 Vt. 106; Werser v. Lowenthal, 31 Md. 413; Owen v. Cawley, 36 N. Y. 600; Leonard v. Rogers, 20 Wis. 520; Craft v. Rolland, 37 Conn. 491; Kelly on Contract Married Women. 269 cases cited.

37 Black v. Galway, 12 Harris 78; Bartlett v. Bartlett, 4 Allen 440; Patton v. Kinsman, 17 Iowa 428; Wolfe v. Van Metre, 19 Iowa 136; Watson v. Thurber, 11 Mich. 457; Ellis v. Kenyon, 25 Ind. 134; Pomeroy v. Ins. Co. 40 Ill. 398 Wilson v. Brown, 2 Beas. 277; Peake v. La Baw, 6 C. E. Green 282; Pemberton v. Johnson, 46 Miss. 342; Carpenter v. Mitchell, 50 Ill. 47; Fiske v. McIntosh, 101 Mass. 66; Todd v. R. R., 19 O. St. 514; Beals v. Cobb, 51 Me. 348; Hartman v. Ogborn, 54 Pa. St. 120.

38 Athol v. Machine Co. 107 Mass. 437; Hansee v. Dewitt, 63 Barb. 53; Nunn v. Givham 45 Ala. 370; Ins. Co. v. Babcock. 42 N. Y. 613; Todd v. Ames, 60Barb. 454; Sharter v. Nelson, 4 Lans. 114; Perkins v. Elliott, 8 C. E. Green 526; Kelso v. Taber, 52 Barb. 109; Coates v. M Kee, 26 Ind. 233; Manchester v. Sahler, 47 Barb. 155; Cherry v. Clements, 16 Humph. 552; Felton v. Reid, 17 Jones N. C. 269; Bartlett v. Bartlett, 4 Allen 540; Hobhouse v. Hobhouse, 8 Bush 665; Clarke v. Valentine, 41 Ga. 143; Bibb v. Pope, 43 Ala. 190; Foxworth v. Magee, 44 Miss. 430.

39 Whitesides v. Cannon, 23 Mo. 457; Segond v. Garland, 23 Mo. 547; Cowles v. Morgan, 34 Ala. 535; Dobbins v. Hubbard, 17 Ark. 189; Bell v. Keller, 13 B. Mon. 381; Caldwell v. Sawyer, 30 Ala. 283; Azley v. Ikelheimer, 26 Ala. 332; Huff v. Wight, 39 Ga. 41; Schofarth v. Ambs, 46 Miss. 114; Jarmon v. Wilkinson, 7 B. Mon. 293; Owen v. Cawley, 36 N. Y. 600; Bonn v. Wappert, 46 Mo. 532; Parker v. Simonds, 1 Allen 258; Ballin v. Dillage, 37 N. Y. 35; Shannon v. Canney, 44 N. H. 592; Yale v. Dederer, 18 N. Y. 265; Wolff v. Van Metre, 19 Iowa 134; Sawyer v. Fernold, 59 Me. 500; DeVries v. Conklin, 22 Mich. 255;