
    GUNN vs. SAMUEL’S ADM’R.
    [BILL IN EQUITY BY CREDITOR AGAINST ADMINISTRATOR OR DECEASED WIFE.]
    1. Liability of wife’s separate estate fw necessaries furnished- to herself and family.—A married woman, owning a separate estate created by deed, may charge it, by contract express or implied, with the payment of necessary medical services rendered to her and the family ; but, where it appears that the physician was called in by the husband, and it is uot shown that the wife authorized or assented to his employment on the credit of her separate estate, the debt imposes a legal liability on the husband alone, although he was insolvent at the time; and the fact that the wife, during her last illness, requested her husband and children to pay the debt, is not sufficient to charge her separate estate with its payment.
    Appeal from the Chancery Court of Chambers.
    Heard before the Hon. James B. Clark.
    This bill was filed by James M. Gunn, the appellant, against the administrator of Mrs. Sarah A. Samuel, deceased, her husband, and their children; and sought to subject Mi’s. Samuel’s separate estate to the payment of an account for medical services rendered by the complainant to her and her family during her life-time. The account embraced a period of six years, commencing in 1846, and ending in January, 1852, when Mrs. Samuel died; and contained items for medicines and services furnished and rendered to Mrs. Samuel, her children, and lierslaves. Mrs. Samuel’s separate estate, consisting entirely of slaves, was held under a deed of gift from her father, executed in April, 1838, which conveyed the slaves to trustees for the sole use and benefitof her and her children. The trustees appointed by thS deed did not act in the matter, but Mr. Samuel controlled and managed the slaves as the acting trustee. The bill alleged, that Mr. Samuel was insolvent during the time the account was being contracted ; that the plaintiff was called in at the instance of Mrs. Samuel, and that the services were rendered on the faith and credit of her separate estate. Decrees pro confesso were entered against Mr. Samuel and the administratorofMrs. Samuel; but answers were filed on behalf of the children, denying the liability of the separate estate to the complainant’s demand, and requiring proof of the ‘ allegations of the bill. The testimony showed that the plaintiff was called in to attend Mrs. Samuel, her children and slaves, while sick, by Mr. Samuel, who was then and continued to be insolvent; and that Mrs. Samuel, during her last illness, requested her husband and children to sell one of the slaves, for the purpose of paying the plaintiff’s account. On final hearing, on pleadings and proof, the chancellor dismissed the bill; and his decree is now assigned as error.
    Guo. W. Gunn, and J. Ealkner, for the appellant.
    Brook & Presley, contra.
    
   STONE, J.

If this record presented the case of a contract by Mrs. Samuel, either express or implied, to pay Dr. Gunn for his services, he would be entitled to recover in this proceeding what seems to be a just demand in favor of Dr. Gunn.—Walker and Wife v. Smith, 28 Ala. B. 569 ; Collins v. Rudolph, 19 Ala; R. 616 ; Colvin v. Currier, 22 Barbour, 371.

The proof, however, clearly shows, that Mr. Samuel, the husband, employed and called in Dr. Gunn ; and there is no evidence that Mrs. Samuel was at all consulted, or gave any authority or assent that he should be employed on the faith or credit of her separate estate. It being the legal, as well as moral duty of the husband, to supply proper medical assistance to his sick wife, it is manifest that a legal liability rests on Mr. Samuel to pay the medical bill of Dr. Gunn.—See Cothran v. Lee, 24 Ala. 380; Zeigler v. David, 23 Ala. 127; 2 Bright on H. & W. 5, 6, 7, 8, 10; I Parsons on Con. 253, et seq.; ib. 286, et seq. The declaration of Mrs. Samuel, made to her father during her last illness, did not impose on her an original liability, or render her separate estate responsible for the debt of another. We have found no ease which would authorize the relief sought by this bill.

The decree of the chancellor is affirmed.  