
    *Vizonneau v. Pegram and Others.
    June, 1830.
    Equitable Separate Estate — Power of Disposition. — A feme covert, quoad property settled to her separate use. is a feme sole, and has a right to dispose of all her separate personal estate, and the profits of her separate real, in same manner as if she were feme sole, nnless her power of alienation he restrained by the instrument creating the separate estate.
    John Stewart, late of Petersburg, by a nuncupative will duly made and proved, according to the statute of wills, in the hustings court of Petersburg, bequeathed to his natural daughter Mary Ann Vizonneau, the wife of Andri Thomas Vizonneau, “all the money he then had in the bank, to be held in trust by major Edward Pegram junior, for her benefit, so that her husband, A. T. Vizonneau, might have no manner of control over or right to the same. ”
    Administration with the will annexed, was granted to Edward Pegram; and he finding about 19,000 dollars of his testator’s money deposited in bank, received the same, and held it in trust for Mrs. Vizon-neau, and applied it to her use, so long as he lived; but he died a few years after, and the money went into the hands of John Pegram, his administrator.
    Hereupon, Mrs. Vizonneau, by her next friend, exhibited her bill in the superiour court of chancery of Richmond against John Pegram, the administrator of Edward Pegram, the trustee named in her father’s will, setting forth the facts, and praying the court to appoint another trustee for her, in place of Edward Pegram deceased, and that his administrator should be directed to pay over the trust fund, to such trustee as the court should substitute. The administrator of Edward Pegram promptly answered the bill, declaring his readiness to account for and pay over the trust money, as the chancellor should direct. The chancellor appointed John B. Bott trustee for Mrs. Vizonneau, requiring of him bond with approved surety for the faithful discharge of the trust; and decreed, that the administrator of the former trustee, should pay the trust money in his *hands belonging to Mrs. Vizon-neau, to Bott the trustee so ap^ pointed by the court. And the money was paid over to him accordingly.
    There were, afterwards, various proceedings in the cause, against the trustee Bott, the object of which was to have an account of his execution of the trust, and to substitute another trustee in his place, to receive and manage the fund for Mrs. Vizonneau. As no person could be found willing to accept the trust, upon the terms which the chancellor required, namely,that the trustee should give bond with approved surety for the faithful discharge of the trust; the chancellor, at length, substituted and appointed the marshal of his court to act as trustee, and ordered Bott to pay and deliver over to him, the fund and all the securities he held for the same.
    The marshal in the course of his administration of the trust fund, paid over to the cestui que trust Mrs. Vizonneau, upon her demand thereof, a part of the principal of the trust fund, and reported the fact to the court. Mrs. Vizonneau insisted, that she had a fight not only to have the profits of the fund, but to dispose as she pleased of the principal also. But the chancellor was of a different opinion ; and, declaring that she was entitled only to the profits of the fund, he disapproved of the advances which the marshal had made her, over and above the profits, and ordered, that the future profits which should accrue, should be applied to reimburse so much of the principal, as had been, in his opinion, thus improperly paid her by the marshal.
    Hereupon, Mrs. Vizonneau (who still remained a feme covert, though from the commencement of these proceedings she had been separated from her husband) presented a petition to the chancellor, in due form, claiming a right to dispose of the fund, principal as well as interest; and praying the court to direct the marshal, instead of applying the profits as they should accrue to reimburse the advances of principal previously made to her, to pay all the accruing- profits to her, or at least so much thereof as was necessary for her immediate maintenance and support.
    *The chancellor, adhering to his former opinion, rejected the application. And Mrs Vizonneau applied by petition to this court for an appeal; which was allowed.
    Stanard and S. Taylor, for the appellant,
    insisted, that she took, under her father’s will, a separate property in the money bequeathed, and was, in regard thereto, a feme sole to all purposes, with full power to dispose of the whole subject; and, they said, there could be no difference between her interest in the profits, and her interest in the principal, of the fund. They cite Hearle v. Greenbank, 3 Atk. 709, 1 Ves. sen. 303; Fettiplace v. Gorges, 3 Bro. C. C. 8; Duke of Bolton v. Williams, 2 Ves. jun. ISO; Hales v. Margerum, 3 Id. 299; Wagstaif v. Smith, 9 Id. 520; Witts v. Dawkins, 12 Id. SOI; Sturgis v. Corp, 13 Id. 190; Browne v. Dike, 14 Id. 302; Heatley v. Thomas, IS Id. 596; West v. West’s ex’rs, 3 Rand. 373. [Brooke, president: Ought not the husband to be a party?] Stanard: We think not; he has no interest in the subject; but if he ought, the court can settle the principle of the case, and that done, it will be easy to supply this formal defect, if it be one.
    
      
      Equitable Separate Estate — Power of Disposition.— Jt is the established doctrine in Virginia, that a married woman, as to property settled to her separate use. is to be regarded as a feme sole, and has a right to dispose of all of her separate personal estate and the rents and profits of her separate real estate, in the same manner as if she were a feme sole, unless the power of alienation be restrained by the instrument creating the estate. Burnett v. Hawpe, 25 Gratt. 486, citing principal case; West v. West, 3 Rand. 373; Woodson v. Perkins, 5 Gratt. 346. To the same effect, the principal case is cited in Christian v. Keen, 80 Va 372; Radford v. Carwile, 13 W. Va. 649, 650; Justis v. English, 30 Gratt. 571; Coatney v. Hopkins. 14 W. Va. 365; Dulin v. McCaw, 39 W. Va. 724, 20 S. E. Rep. 683. See also, foot-note to Lee v. Bank. 9 Leigh 200. The mere fact that the estate is put in the hands of a trustee to be used for the wife does not effect in any degree the jus (lisponendi; and the trustee’s assent is not necessary to a valid alienation or charge hy the wife, unless it is required expressly or by strong implication in the instrument under which the property is derived. Burnett v. Hawpe, 25 Gratt. 487; Patton v. Merchants’ Bank. 12 W. Va. 608; Haymond v. Jones, 33 Gratt. 338; Coatney v. Hopkins. 14 W. Va. 365.
      But, in Virginia, the right to restrain or interdict the power of the wife to dispose of her separate estate has been expressly recognized and affirmed in several cases. Nixon v. Rose, 12 Gratt. 431, citing principal case; West v. West, 3 Rand. 373; Williamson v. Beckham, 8 Leigh 20; Lee v. Bank of U. S., 9 Leigh 200. To the same effect see principal case cited in Radford v. Carwile, 13 W. Va. 652.
      See further, on this sub] ect, monographic note on “Husband and Wife" appended to Cleland v. Watson, 10 Gratt. 159.
      As to the eilect of one mode of alienation being prescribed in the instrument creating a wife’s equitable separate estate, see discussion in foot-note to Lee v. Bank of U. S., 9 Leigh 201. See also foot-note to Williamson v. Beckham, 8 Leigh 20.
    
   CABELL, J.,

delivered the opinion of the court. It is established, in England, by a long course of uniform decision, that a married woman is, as to property settled to her separate use, a feme sole; and, as a consequence of this principle, and an incident to the right of enjoyment, that she has a right to dispose of all her separate personal property, and the profits of her separate real estate, in the same manner as if she were a feme sole, unless her power of alienation be restrained or restricted by the instrument creating the separate estate. The same principle has been sanctioned by this court, in the case of West v. West’s ex’ors.

The will of John Stewart gave the appellant, an estate for her separate use and benefit, in the money thereby bequeathed, and imposed no restraint on her power uf alienation. *It follows, therefore, that so far from her being confined, in her own enjoyment of it, to the use of the interest of the fund during her life, she is to be regarded as the absolute owner of both principal and interest, and should be permitted to make any disposition thereof that she may desire to make.

The decree is reversed, and the cause remanded to be proceeded in according to the principles now declared.  