
    O. T. Porcher vs. Joshua Daniel, W. R. Reid and others.
    
      Feme Covert — Power—Settlement— Will.
    
    Where an absolute estate is secured to the sole and separate use of a married woman, it is not inconsistent to confer upon her power to dispose of it by deed or will.
    Where property of the wife is, by marriage settlement, surrendered by the husband to her “full and free disposal,” she “to have and to hold the sole discretion guidance thereof,” she has the power, duringcoverture, to dispose of the same absolutely by will.
    Where a married woman has power, under her settlement, to dispose of her property as she sees fit, it is not necessary, it seems, that in disposing of it she should refer to the power. Her only right to dispose of it being conferred by the power, she must, it seems, be understood as having reference to the power whenever she makes disposition of it, either in whole or in part.
    The will in this case disposing of the property held to contain a sufficient reference to the power.
    The settlement gave the wife power to dispose not only of the property then existing, but also of the increase to arise or in anywise to proceed therefrom : — Held, that she might dispose of land purchased with the income.
    BEFOBE DUNKIN', OH., AT ABBEVILLE, JULY, 1860.
    Eor a full understanding of this case reference should be had to Peid vs. Lamar, 1 Strob. Eq. 27; but as the copy of the settlement between Jane McKinney and William B. Eeid, as contained in that case, is not accurate, it is here given in full, and is as follows :
    “ GEORGIA, LINCOLN COUNTY :
    
      “ This indenture, made and entered into on the 21st day of July, 1828, between William E. Eeid, of the one part, and Jane McKinney, of the other part, witnesseth, forasmuch as "William E. Eeid and Jane McKinney, both of Lincoln county and State aforesaid, have pledged their faith to each other, and fully intend to enter into the bonds of matrimony as husband and wife, owing to certain considerations they have tbongbt proper, after due deliberation, to enter into a marriage contract to the following effect:
    “The said William E. Eeid doth hereby firmly agree tbat Harvey Wheat shall act as agent for and in behalf of the said Jane McKinney for the better securing and management of all and singular tbe property in ber vested at tbis time, or in which she bas or might hereafter have any interest, and all proceeds .which may hereafter arise therefrom. And the said William E. Eeid doth further agree and contract with the said Jane McKinney, through and by her said agent, to surrender to her the full and free disposal oí all and singular the property which she has now in possession, consisting of negroes, stock of different kinds, household and kitchen furniture, together with all she has now or may have any interest in or claim, to wit, all the increase that may hereafter arise therefrom, or in anywise from them proceed, and all choses in action, to have and to hold the sole discretion guidance thereof.
    “And the said Jane McKinney, of her own good will and feeling chose, and through Harvey Wheat, her chosen agent, doth hereby agree and firmly contract to afford to tlie said William E. Eeid a decent and competent support, by bis labor, and through the proceeds of her above-named property, provided tbat be also give his labor and assistance thereunto in rendering to bis own and tbe support also of her and her family. And the said Jane McKinney doth further agree not to interfere, dispose of, or in anywise intermeddle with any or singular the effects or property of said William E. Eeid, which he has now or may hereafter have or accumulate by his own labor and industry, or with any of the proceeds arising therefrom. Therefore, know all ye who are now or may hereafter be concerned, that we, the above-named William B. Eeid and Jane McKinney, without intention of fraud, and after due reflection upon the above, our contract, do now, together with Harvey Wheat, the above-named agent, fully ratify and confirm the same; and in witness whereof we hereunto annex our hands and seals, in the date and day above mentioned.
    “ WILLIAM E. EEID. [l. s.]
    “JANE McKINNEY. [l. s.]
    “HAEYEY WHEAT, [l. s.]”
    After the decision in Beid vs. Lamar, Mrs. Eeid made and executed her will, a copy of which is as follows:
    “In the name of God amen: I, Jane Eeid, wife of William E. Eeid, of the District of Abbeville, and State of South Carolina, but notwithstanding my coverture having the right and power to dispose by will of the property now in my use and possession, to wit: of the tract of land conveyed to me by William L. Boag, and the tract purchased by me of James P. Graves, for which a deed of conveyance has not yet been executed, which tracts of land adjoin and constitute the farm which I cultivate, and on which I now live, and the following slaves, to wit: Tend, Juddy, Pennina, Mary, Manda, Caroline, Margaret, Kitty, Martha, Bilick, Lewis, Henry, Anderson, Bill and Amy, and the mules, horses, cattle, hogs and articles of small value that are now in my use and possession: being of sound and disposing mind, memory and understanding, do make this my last will and testament, as follows:
    “I give, devise and bequeath to my brother, Gabriel Cox, and my friend Octavius T. Porcher, all the property herein-before enumerated and described, which is now in my possession and use, to them, their heirs and executors, upon and for the objects, purposes and trusts following, that is to say: that the said property be kept together as it now is, until the death of my husband, William E. Eeid, and that with the proceeds of crops and profits of farm, my debt to James P. Graves for the purchase of the place upon which I now live, and all other just and legal- debts of my contracting, be paid. I mean the debts which I may have contracted within the last four years. That my husband, William E. Eeid, be allowed á home on my land, and a sufficient and proper support out of the crops which shall be made on the farm; but this provision for his support and maintenance is on the express condition that it is not, and shall not be, in anywise subject to his assignment and disposal, nor to his creditors, either present or future. After the death of my said husband, it is my will and desire that all my property herein-before enumerated and mentioned, together with all the increase and profits thereof, be divided into ten shares of equal value, two of which I give, devise and bequeath to my brother, Gabriel Cox, one to my brother, Christopher Cox, and the remaining seven shares to my nephew and nieces, the children of my brothers, Cornelius Cox, Leroy Cox, and Bailey Cox, and of my sisters, Bethana Pace and Phereby Price, and have and share alike.
    “And I do hereby nominate and constitute my brother, Gabriel Cox, and my friend, Octavius Porcher, executors and trustees of this my last will and testament.
    “ In witness whereof I have subscribed my name this 29th day of April, A. D. 1857.
    “JANE EEID.
    “ Signed and published as and for her last will in our presence.:
    “W. Tennant.
    “Paul Eogers.
    “ J. A. Gibert.”
    The will was proved in common form before the Ordinary of Abbeville District, and O. T. Porcher, the plaintiff, qualified as executor. The defendant, Joshua Daniel, a creditor of "William R. Reid, then instituted proceedings before the Ordinary requiring the will to be proved in solemn form; and thereupon this bill was filed, praying that the said will be established as a valid execution of the power conferred by the settlement, and the plaintiff instructed in the discharge of his duties as trustee thereunder.
    The circuit decree is as follows:
    Dunkin', Oh. The pleadings present the facts of this case. The plaintiff, in possession of the real and personal estate of the late Mrs. Jane Reid, under an instrument executed by her, and bearing date 29th April, 1857, seeks the instruction of the Court in the discharge of his trusts. The defendant, "William R. Reid, the husband of the late Jane Reid, acquiesces in the validity of the instrument as made, in conformity with 'their antenuptial agreement. It is contested by the creditors of "William R. Reid, who are made defendants.
    In Reid & Lamar, 1 Strob. Eq. 27, the character of the antenuptial contract between "William R.Reid and his intended wife, then Jane McKinney, was very fully considered. It was determined'that it constituted a settlement of her property to her sole and separate use. In relation to her powers under it, Judge Johnson, who heard the case at the circuit, uses the following language: “ The deed here confers on the wife sole direction and the full and free disposal of the property— powers as ample as any owner can exercise over property in which he has an absolute and unqualified right; and it is not questioned that, under this power, she might have disposed of it by a parol or written contract, with or without consideration, or by will, or that it would be bound if she had mortgaged it for the payment of these debts.”
    The question is then considered by him, whether the estate was liable for tbe payment of promissory notes in which she had joined with her husband, and upon tbe authority of tbe English oases be determined that her separate estate was so liable.
    Tbe Court of Appeals held that tbe act of a feme covert was only valid so far as authorized by tbe antenuptial contract, and that the notes were void, as Mrs. Beid (the complainant in that case) “ bad no power to charge ber estate in that way,” and tbe decree, subjecting ber separate estate to liability, was reversed.
    In Wilson vs. Gaines, 9 Bicb. Eq. 420, an instrument of this character executed by a feme covert was sustained by the Court; and see also tbe judgment of Lord Chancellor Hardwicke in Boss vs. Ewer, 3 Atk. 156.
    In tbe opinion of tbe Court, tbe instrument of the 29th April, 1857, was within tbe authority conferred by tbe ante-nuptial agreement of 21st July, 1828, and it is so declared.
    It is ordered and decreed that tbe plaintiff proceed in the discharge of bis trusts accordingly, and that he have leave to account before tbe Commissioner for bis transactions in relation to the same; parties being at liberty to apply, at tbe foot of this decree, for such further orders as may be necessary.
    Tbe defendant, Daniel, and others, creditors of William B. Beid, appealed, on tbe grounds:
    . 1. Because tbe Chancellor erred in bolding that the paper purporting to be a marriage settlement conferred any power upon Jane Beid to‘ dispose of tbe said property by will or otherwise.
    2. It is respectfully submitted that the said paper only reserves to tbe said Jane Beid an absolute estate in tbe property to ber sole and separate use; but reserves to her no power of disposition.
    
      3. That all the expressions used in said paper are words creating and limiting a separate and absolute estate in said Jane Eeid, and do not secure to her any power to dispose of said estate by deed or will.
    4. That the paper purporting to be the last will of said Jane Eeid is a nullity, being the act of a married woman; that it is in no way the execution of a power, and that the property of Jane Eeid at her death vests in her next of Lin under the Statute of Distributions.
    
      McQ-owen, Wilson, for appellants.
    
      Nolle, contra.
   The opinion of the Court was delivered by

Inglis, J.

A conflict of opinion upon the construction and legal effect of the contract entered into between Jane McKinney and William R. Reid, on the eve of their intermarriage, has occasioned much litigation. This litigation in some of its previous stages has ascertained that the beneficial interest in the estate, which at the execution of this contract Jane McKinney held in the property therein described, was by the contract reserved to her separate use during the contemplated coverture, and the mere dry legal title left to pass by the operation of the marriage to the husband to support this separate use. Reid vs. Lamar, 1 Strob. Eq. 27. It has now become important to ascertain further whether there was also reserved, by the operation of this contract, to Jane o McKinney when become Eeid, a power to dispose by will of the property in which she thus held a separate estate. She has attempted to do this, and if she has not the power, her attempt being ineffectual, she has died intestate. Her husband surviving her in such event, (there being no issue of the marriage living,) has succeeded under the Statute of Distributions to the one-half of her separate property, and his creditors, made defendants here, are entitled to have his share subjected to the satisfaction of their general liens on his estate. Their appeal asserts such right.

The jus disponendi is necessarily inherent in ownership, certainly when the owner is sui juris. To attempt to super-add to a grant, or conveyance, of the absolute ownership of things, a power of absolute disposition over them, would be not unlike superadding to the creation of a perfect sun the power of shining. And when, as under the doctrine of the Courts of Great Britain, and of perhaps the larger number of the American States, the creation of a separate estate in a feme covert, proprio vigore clothes her with all the powers quoad hoc of a feme sole, except in so far as such power is curtailed by the express provisions of the instrument of creation, a general power of disposition, so far as not so expressly negatived, will attach upon and inhere in her ownership. Such seems to be recognized by the Supreme Court of Georgia as the law of this subject, in the case of Fears vs. Brooks, 12 Geo. R. 195, (1852.) If this be so, the present contract having been executed in Georgia where the parties were both then residing, where the marriage was consummated, and where the debts due to the defendants, creditors of Beid, were contracted, ought to have effect accordingly. We do not however rest our judgment on this ground. By a well-considered and for now a long time uniform course of judicial decision, which no individual dissent even has questioned, and which has commanded approbation and imitation elsewhere, it is ascertained to be the law of this State that, “ when property is given or settled to the separate use of a married woman, she has no powers to charge, incumber or dispose of it, unless in so far as power to do so has been conferred on her by the instrument creating her estate.” She can in no manner of respect be considered a feme sole. A feme sole disposes of or charges her property by her own act and according to her own will, by her inherent power as owner. A feme covert exercises a delegated authority, and cannot exceed it.” Harper, Ch., in Reid vs. Lamar, ut supra.

It becomes necessary, then, to inquire whether this contract, by its terms, gives or reserves to Jane Beid such power of disposition as she has attempted to exercise. The intention of the parties, to be gathered from the instrument itself, conforming by a liberal interpretation its particular terms to the general purpose therein manifested, is to be sought for and effectuated. In Reid vs. Lamar, the Court, assuming, as the strongest aspect in favor of Beid’s creditors which the case could take, that a general power of disposition was reserved to the wife, but not adjudging that such was the actual effect of the contract, and certainly not adjudging the contrary, held, that the mere act of joining with her husband in the execution of promissory notes, a form of merely personal charge or obligation, could not be regarded as an execution of such a power, or as evidencing an intention to subject her separate estate to a specific liability. This contract consists of two sections, which seem to be set over against each other, and each to aim at accomplishing a distinct part of a common design, which is consummated by the joint effect of the two. Jane McKinney was a widow, possessed of property, and seemed to have needed the assistance of a man upon whom she could depend in making her property productive. ~W. B. Beid had the physical ability to labor, and, it may be, skill to direct his labor to effect,but needed capital in combination with which to make his labor profitable. Mutually anticipated benefit of this kind seems to have prompted their intermarriage, but there is evidently pervading the instrument, as its prime purpose, an intention to exclude the legal effect of marriage upon the property of each, so far as to retain to each practically the continuance of that dominion in fact which had been hitherto exercised without the interference or participation of the other. Accordingly wre find, in the first section, W. E. Eeid surrendering to the intended wife the “full and free disposal of all and singular the property which she has now in possession,” &c., “to have and to hold the sole discretion guidance thereof.” And in the second Jane McKinney stipulating not to interfere, dispose of, or in any way wise inter-meddle with any or singular the effects or property ” of the intended husband. And to this general purpose the terms themselves of grant or engagement on the part of Eeid in the first section seem without violence to their import to conform. These terms are, in the judgment of the Court, too large to be satisfied by merely securing to the wife the separate beneficial enjoyment of the property against the marital rights of the husband, or even against his active interference without her consent in its management or control. The purpose to effect so much as this is more than sufficiently manifested in the attempted interposition of a third person to act for and in behalf of the wife “for the better securing the property,” in the consent .of the husband that the wife shall “have the sole discretion guidance thereof,” and in the stipulation of the wife to afford out of the proceeds of the property a decent and competent support ” to the husband. When, therefore, it is further agreed that there shall be “ surrendered to her the full and free disposal of all and singular the property,” there is superadded, to the covenant that the seizin or legal estate, which the contemplated marriage would transfer to him, should be held for her separate use, the further covenant that she should, notwithstanding her coverture, have a general power of disposition, such as was incident to the legal estate which she then held, but which would, by the doctrine of our Courts, be excluded From accompanying the reservation of the separate use unless it were itself also expressly reserved.

It is objected that inasmuch as the equitable estate secured to Jane Eeid was, as to quantity of interest, an absolute one, any attempt to attach by distinct and independent grant a power of disposition is simply nugatory. It has already been remarked that that is true in reference to an estate held by one who is sui juris. But the reason is, that a power which is of the essence of and by necessity of nature subsists in an estate, cannot be added by independent grant, &c., to the creation of such estate, or, in other words, that such a grant creates nothing that did not already exist. But a separate estate or use in a married woman is the creature of equity, and has those attributes only with which equity clothes it. Its essence consists simply by the formal intervention of a trustee, or, without this, in excluding the marital right of beneficial ownership in the corpus of personalty and usufruct of realty, which would otherwise, by the mere legal operation of marriage, attach upon the property; beyond this, the legal disabilities of coverture are not necessarily removed by the mere creation of such estate. Equity may go farther, and, as incidental to such creation, remove all or some of these disabilities absolutely, or under qualifications. This has not been done in South Carolina. There being here, therefore, no power of disposition necessarily incident to, or inherent in, such separate estate, of what quantity of interest soever it may be, there is no inconsistency or legal absurdity in adding such power, by grant or other proper mode, to the creation of such estate. That such power may be so added seems to be the expressed law of the decided cases.

A married woman, having a separate estate, and having also a general and absolute power of disposition over it, may charge or alien it, or any part of it, or partially or wholly, temporarily or permanently, divest herself of her interest in it, or in any part of it, in any of the modes in which the same kind of property or things may be legally charged or aliened, &c., by one who is sui juris; only her, intention to do this must be clearly manifested. It cannot be necessary that whenever she makes a gift or other disposition of an article of property, or sells the produce of her farm, she shall make express and formal reference to the instrument by virtue of which she is empowered to do this. Having no power to dispose of corpus, or income, except as conferred by the instrument, each act of disposition ought reasonably to be referred to the only source of her power, and she ought to be considered as having made the disposition in the execution, of the only power which could make it effectual. It is not the case of a power of appointment general, or special, where more strictness may be proper. We are of opinion, however, that in the terms of the testamentary paper executed by Jane Eeid, there is a sufficient reference to her general power of disposition, secured by the contract of herself and her husband notwithstanding the coverture, or against the disability which coverture would else have imposed, to make her will a good and valid execution of that power.

The power of disposition reserved or secured to Jane Eeid, by its terms embraced, not only the specific property which she then had in her possession, but also all the increase thereafter to arise therefrom, or in anywise from that then existing property to proceed.” This involved the power to invest the income in the purchase of other property, real or personal, and at last dispose of the original corpus, with all the accumulations of income in whatever form invested. The two tracts of land particularly mentioned in the will appear to have been purchased with the proceeds of the secured property, and to be, therefore, subject to the power of disposition as part of the general mass on which, by the terms of the contract, that powbr might operate.

This Court perceives no error in the direction of the circuit decree, and it is ordered that the same be affirmed and the appeal dismissed.

Dunkin, C. J., and Wardlaw, J., concurred.

Decree affirmed.  