
    
      George Holloway and wife et al. vs. John Rochell et al.
    
    The bill in this case is exhibited by George Holloway and his wife, Rebecca, a sister of Elizabeth Rochell, and by her brother, Wm. H. Adams, against the other brothers and sisters of Mrs. Rochell, the children of her deceased brothers and sisters, her administrator, Thomas Furguson, and her husband, John Rochell, to have partition made of her lands other than those devised to her for life by the will of her first husband, Samuel Tompkins.
    This case and the case of John Rochell vs. Samuel Tompkins and others, was tried by Chancellor Johnson together. His decree in this case was as follows:
    Johnson, Ch. In the decree pronounced in the case of John Rochell vs. Samuel Tompkins and others, I decided that the defendant, John Rochell, was entitled, upon the death of his wife, Elizabeth, to one moiety of her estate ; and that under the marriage settlement between her and the said John Rochell, her estate was chargeable with debts of a certain description, and with a view of ascertaining whether there were any such debts, a reference to the Commissioner was ordered. There can be no order for partition until the demands chargeable upon the estate shall have been first ascertained and satisfied, but meanwhile there is no objection to an account being taken between the said John Rochell and his co-tenants, as to the rents and profits alleged in the bill, and admitted in his answer, to have been received by him since the death of his said wife.
    It is therefore ordered and decreed, that it be referred to the Commissioner to take an account between the said John Rochell and his có-tenants, of the rents and profits of the lands of his deceased wife, Elizabeth, that have been received by him since her death, all equities being reserved. It is further adjudged and decreed, that upon the death of the said Elizabeth Rochell, the defendant, Johu Rochell, as one of her “ right heirs and representatives,” became entitled to one moiety of all her lands, and that the other moiety became distributable between the surviving brothers and sisters, and the children of the pre-deceased brothers and sisters, of the said Elizabeth, mentioned in the bill, the children of each pre-deceased brother or sister taking the share to which their deceased parent would have been entitled if alive.
    And it is further ordered and decreed, that after satisfaction of the debts chargeable upon the estate of the said Elizabeth Rochell, according to the said decree in the cas- a .John Rochell against James Tompkins and others, if any such debts appear, the personalty of the said estate being first appropriated to the payment of the same, the lands of the said Elizabeth Rochell, described in the bill, be parted and divided in the proportions above mentioned, between the parties entitled thereto, and if necessary for that purpose, that a writ of partition do issue out of this Court in the usual form.
    The collateral relatives of Elizabeth Rochell, who are parties in the cases above stated, moved the Court of Appeal-.... modify the Circuit decree in each of the said cases, upon the following grounds:
    1. That according to the correct construction of the deed of marriage settlement between John Rochell and his late wife,, Elizabeth Rochell, he is wholly excluded from any participation in the distribution of her estate; she having died without exercising the power of disposition secured to her by said deed, and he not being embraced in the description of the persons to whom her estate is in that contingency limited over.
    2. That under the said deed of marriage settlement, Elizabeth Rochell had not the power of a feme sole, in rendering her separate estate responsible for her debts, and it is respectfully .submitted, that no debts incurred by her, after her coverture, impose any charge upon her estate, except such as were manifestly proper and necessary to be incurred.
    The collateral relatives of Samuel Tompkins, deceased, parties defendant in the case first above mentioned, appealed from the Circuit decree in that case, and moved that the same be modified, upon the ground:
    That all the interest of Elizabeth Rochell in the lands and personalty devised and bequeathed to her for life by the will of Samuel Tompkins, ceased and determined at her death.
    Carroll and Griffin, for the motion.
    Bauskett, contra.
    
   Dunkin, Ch.

delivered the opinion of the Court.

In reference to the first ground of appeal taken by the collateral relations of Elizabeth Rochell, deceased, and the appeal taken by the collateral relations of Samuel Tompkins, deceased, the Court concur in the judgment of the Chancellor, and do not deem it necessary to add to the reasoning of the decree.

In Reid vs. Lamar, this Court have just determined that the power of a married woman over her separate estate, was derived from the deed or instrument creating such estate, and that she had no other capacity to contract but as authorized or empowered by the settlement.

It is provided, however, by this deed, that the estate, real and personal, and the profits thereof, should be for the sole and separate use of the said Elizabeth Rochell, notwithstanding her coverture, and not subject to the debts, contracts, or engagements of the said John Rochell, her said intended husband, “except so far as the management of the said estate, real and personal, may be committed to the said John Rochell, as the agent and appointee of the said Elizabeth, and for her special use and benefit.”

The allegation of the complainant is that he managed the trust estate as the agent of his wife, and that it was increased and improved under his judicious management, and that the debts, for which he claims indemnity, were necessarily incurred in the course of such management, and solely for the benefit of the estate. Upon this point it is proposed to express no opinion until the facts have been ascertained, and the report of the Commissioner heard.

The decree of the Circuit Court is reformed, and the order of reference modified according to the principles of this decree.

Harper, Ch. and Johnston, Ch. concurred.

Decree reformed.  