income his, the husband may show and execute an intention of preserving such income as his wife's separate property; or, on the other hand, of investing it rather for the benefit of the whole family.2

On the whole, there is and must be, throughout this transition period, conflict in the authorities as to the effect of a husband's receiving the proceeds of his wife's share in inherited property, or of some sale or investment in her sole right: States which abide by the common law of coverture inclining to sustain his ancient right of reduction into possession, and presuming in his favor; and States, on the other hand, under the impress of the new legislative policy, reserving her title, unless she plainly and voluntarily divests herself of separate rights.1

§ 156. Married Woman as Trustee. Appointing a married woman trustee may be considered objectionable (apart from equity rules of constructive trust), while the law yet fails to divest her of all coverture disabilities, so as to make her both efficient and responsible in the legal sense. Yet it is held in some States that a married woman may, under the statutes, hold an estate in trust, and make contracts accordingly."

§ 157. Tendency as to Wife's Binding Capacity; her Estoppel or Election. -There is now little or no limit upon the wife's legal capacity to bind her statutory estate to the discharge of liabilities created on account thereof, in Ohio, Wisconsin, Massachusetts, New York, Indiana, Illinois, and some other States. In Illinois it is said that capacity to make contracts respecting her separate property is an implication of law and not of equity, and consequently all contracts made by her within the scope of 1 Gill v. Woods, 81 Ill. 64; Patten Gourley, 95 Ill. 206; Jacobs v. Hesler, v. Patten, 75 Ill. 446; Bongard v. Core, 113 Mass. 157. 82 Ill. 19; supra, § 141.

2 Bristor v. Bristor, 93 Ind. 281. As to circumstances of accountability under which the wife's preference to the husband's creditors was sustained, see 143 Mass. 203; 30 Fed. 401. And see Farmer's Bank v. Jenkins, 65 Md. 245; 113 Penn. St. 209.

3 Reade v. Earle, 12 Gray, 423; Windsor v. Bell, 61 Ga. 671; Nevius v.

4 Nissley v. Heisey, 78 Penn. St. 418; Penn v. Young, 10 Bush, 626; Moyer's Appeal, 77 Penn. St. 482; Archer v. Guill, 67 Ga. 195; supra, § 118.

As to the husband's agency in his wife's trade, see § 168, post.

5 Springer v. Berry, 47 Me. 330. See Pemberton v. McGill, 1 Dr. & Sm

266.

that legal capacity are legal contracts, and cognizable in the courts of law. Some of the latest acts explicitly confer upon married women the power to deal with their property and sue and be sued as though single. And a wife may at least bind her separate estate for the payment of her debts or for the discharge of any contract she may make for her own use and benefit.

As a natural result of the first modern innovations upon the coverture theory, it may be observed that, while estoppel does not work against a married woman so readily as against persons sui juris, it is held in various recent instances, and justly, too, that where married women make agreements by fraudulent means, with reference to their separate property, and thus obtain inequitable advantages, a court of chancery will treat them as estopped from setting up and relying on their coverture to retain the advantage. The more her legal disabilities are stricken away, the closer does she approach the status of sui juris. And an innocent holder for value of a wife's signed note or other obligation has been protected against even her husband's abuse of authority conferred by her where she gave full opportunity for the fraud or dishonestly clung to the consequences.3 In various instances a wife's conveyance, suretyship engagement, purchase, or other transaction on her part, while considered invalid in a sense, has been held to be at most merely voidable at her elec

1 Williams v. Hugunin, 69 Ill. 214; Schouler, Hus. & Wife, § 288.

2 Coolidge v. Smith, 129 Mass. 554; Patterson v. Lawrence, 90 Ill. 174; 5 Lea, 405; 17 Fed. R. 760; 153 Penn. St. 646; Flanagin v. Hambleton, 54 Md. 222; 145 Penn. St. 628. See, further, Schouler, Hus. & Wife, § 288; Hendershott v. Henry, 63 Iowa, 744; Gray v. Crockett, 35 Kan. 66; 35 S. C. 42, 175. Some codes now declare that a married woman may be bound by an estoppel like any other person. 108 Ind. 301. But cf. 60 N. H. 568.

Where land has been conveyed to the wife, and mortgaged back by her informally for the purchase price, the wife cannot retain the land and repudiate her consideration. 106 N. C. 512;

§ 150. "Her power to contract measures the extent to which she may become estopped." 48 Minn. 408; 13 Col. 229. And see 131 Ind. 267; 76 Iowa, 633. As to estopping her assertion of a vendor's lien, see 89 Ala. 414; 85 Mich. 63. Or of her dedication to public uses. Holloway v. Louisville R., 92 Ky. 244; 101 Ind. 200. Or of her deed, see 41 Minn. 165. She is chargeable with her laches. 55 Ark. 85. But the language of a local statute may forbid an estoppel. Parsons v. Rolfe (1891), N. H. As to an increased estoppel with increased rights sui juris, see St. Louis R. v. Foltz, 52 Fed. 627; Dobbin v. Cordiner, 41 Minn. 165; 87 Tenn. 89.

3 Nelson v. McDonald, 80 Wis. 605.

tion; so that she may, if she chooses, stand by the transaction, and strangers cannot dispute it, especially if equitable circumstances exist for sustaining what she did.1

§ 158. Proceedings for Charging Wife's Separate Estate; Suing and being Sued as a Single Woman. The married women's acts in some States make, as might be anticipated, a radical change in the character of the practice for reaching the wife's separate property. According to the English practice, and that prevalent now or formerly in most States, there was no personal judgment against a married woman, inasmuch as she was incapable of binding herself personally by her engagements. But a chancery decree was directed against the separate property of the wife, declaring the separate estate vested in the wife at the date of the decree, which it was within her power to dispose of, chargeable with the payment of the debt.2 The debt was not a lien upon the wife's separate estate until made so by decree of the court of equity, and the lien was by virtue of such decree.3 Under such proceedings there was only a sort of equitable execution, the decree reaching merely property which the wife had power to bind, and no personal judgment being awarded against her, nothing from which direct personal liability on her part could be predicated. In some of our States we find promises of the wife enforceable in equity against her separate estate.

But under most recent married women's legislation the same judgment is frequently required, with the same process for its enforcement, as would be awarded if the woman were sole; saving, perhaps, the usual exemptions, and treating the wife's property in such case substantially as the husband's property might be treated were the judgment rendered against him and

1 Showman v. Lee, 79 Mich. 653; Palmer v. Smith, 88 Ga. 84; Nicholson v. Heiderhoff, 50 Miss. 56; 6 Lea, 397; 53 Ark. 178; Johnson v. Jouchert, 124 Ind. 105; 134 Ind. 9. Election to avoid goes to the wife's privies in blood, but not to her husband. 116 Ind. 408.

2 Johnson v. Gallagher, 3 De G. F. & J. 520; Collett v. Dickenson, L. R. 11 Ch. D. 687; Patrick v. Littell, 36 Ohio St. 79; Armstrong v. Ross, 20 N.

the liability his. And where such is the practice no equitable circumstances can usually be alleged, calling for the intervention of a court of equity. Legal attachment on mesne process, or by way of legal execution against a married woman, may be made under such statutes; 2 or, in appropriate instances, the foreign attachment or trustee process applied. Even upon her covenants the wife may, in some States, be sued like a single woman; the later statute often requiring her to sue and be sued thus on her contracts. And her warrant of attorney to confess judgment upon a contract on which she is liable under statute has been held binding upon her.5

On the whole, policy still disinclines to permit a personal judgment to be rendered against a married woman, even on what purports to be her personal obligation. Nor is her own property to be seized without having her liability first adjudged under proceedings to which she is a party, with a fair opportunity of being heard and defended. The subjection of the wife's property under these acts extends to all her statutory separate estate, or, as might generally turn out, through the changing of equitable into statutory estates by operation of legislation, all of her separate property. And by this means the old distinction between the real and personal separate estate becomes well-nigh obliterated. But in the present state of the law each code must afford its own rule.

1 Stevens v. Reed, 112 Mass. 515; Patrick v. Littell, 36 Ohio St. 79; Cookson v. Toole, 59 Ill. 515; Andrews v. Monilaws, 15 N. Y. Supr. 65.

2 See language of Hoar, J., in Willard v. Eastham, 15 Gray, 328; Gall v. Fryberger, 75 Ind. 98; 16 R. I. 495.

8 Powers v. Totten, 42 N. J. L. 442.

4 Worthington v. Cooke, 52 Mo. 297; Wright v. Burrows, 61 Vt. 390. Whenever a statute allows a married woman to sue alone, she must sue alone. 61 Vt. 390. And this rule applies often in the latest legislation as to her action for slander or other tort; she sues without joinder of her husband. 62 Vt. 243. For a judgment against her in tort, see

Burdick v. Burdick, 16 R. I. 495. As to suits in contract at law by or against her with personal judgment, see 50 Ohio St. 417; 104 Mo. 44.

5 Heywood v. Shreve, 44 N. J. L. 94. She ought to defend, and not permit judgment to be taken and then try to avoid the judgment. 92 Mich. 427; 132 Ind. 63. But cf. 144 Penn. St. 215.

As to actions of replevin to recover the wife's property, see 60 Md. 426; 75 Ind. 98.

6 Edwards v. Woods, 131 N. Y. 350. 7 For various points of modern statutory practice, see Schouler, Hus. & Wife, § 289; supra, § 144 a.

§ 158 a. Promise of a Third Person to pay a Married Woman's Debt. The moral obligation of a married woman to pay a debt which cannot be enforced against her is a good consideration for the promise under seal of a third person to pay it.1

§ 159. English Married Women's Acts; Wife's Disposition. In England the married women's property act of 1870, with its later amendments, indicated some change of parliamentary policy in the same practical direction. But the English courts still inclined, as would the American under statutes of dubious import, to render the separate property of the wife liable by subjecting her to the ordinary process of law and equity.2 The wife cannot be sued alone in respect of her separate estate in the common-law courts, under the act of 1870, for the price of goods sold her during coverture, but, as formerly, the husband must be joined.3

The later English act of 1882 enlarges the wife's powers and liabilities with reference to her separate property. But the judicial disposition is still somewhat conservative; and a married woman is held incapable of rendering herself liable in respect of her separate property on any contract unless she has some separate property at the time the contract is made; the party seeking to hold her liable must show this fact.5

CHAPTER XII.

THE WIFE'S PIN MONEY, SEPARATE EARNINGS, AND POWER TO

TRADE.

§ 160. The Wife's Pin Money. The wife's pin-money constitutes a feature of English marriage settlements in modern

1 Leonard v. Duffin, 94 Penn. St. 218.

4 Act 45 & 46 Vict. c. 75. This statute provides that the wife's contract

2 Ex parte Holland, L. R. 9 Ch. shall bind whatever separate property App. 307. she may afterwards acquire as well as that at the date of the contract.

8 Hancocks v. Lablache, 26 W. R. 402; Davies v. Jenkins, L. R. 6 Ch. D. 728.

5 Palliser v. Gurney, 19 Q. B. D. 519; Deakin v. Lakin, 30 Ch. D. 169.