
    *Darnall & Wife v. Smith’s Adm’r & als.
    November Term, 1875,
    Richmond.
    I. Harried Women—Separate Estate—Charging with Debts.—A married woman, possessed of a separate estate, may charge the same with her debts in like manner and to the same extent as a feme sole.
    
    II. Same—Same—Same—Intention.—The liability of the separate estate of a married woman can only arise out of the supposed intention of the wife. And no pecuniary engagement can be a charge upon the wife’s estate which is not connected by agreement, either express or implied, with said estate.
    III. Same—Same—Same—Same.—If a married woman having separate property enters into a pecuniary engagement, whether by ordering goods or otherwise, which if she were a feme sole would constitute her a debtor, and in entering into such an engagement she purports to contract not for her husband but for herself, and on the credit of her separate estate, and it was so intended by her, and so understood by the person with whom she is contracting; that constitutes an obligation for which the person with whom she contracts has the right to make her separate estate liable: and the question whether the obligation was contracted in this manner must depend upon the facts and circumstances of each particular case.
    IV. Same—Same—Same—Same.—As the charge is aj. mere question of intention, the wife may extend it to the whole, or confine it to a part of her separate-estate. If no specific part is appointed for the payment of the debt, the fair implication is, that the whole estate was intended to be made liable. If, on the other hand, only a part of the estate, ex-
    . pressly or by fair inference, is designed to be charged, no liability whatever can attach to the residue.
    V. Same—Personal Liability.—A wife is exempt from all personal liability, and from all personal decrees and judgments upon her contracts. Her undertaking, so far as it is recognized by the. courts, is not that she will pay the debt, but that her separate estate shall be answerable for it. And that is . bound so far only as she has agreed it shall be bound.
    *VI. Facts — Harried Women — Separate Estate —Liability.—w was insolvent, and E, his wife, owned a separate estate, part of it under her father’s will, which was given in trust for her. In August 1860 W and E purchase a crop of tobacco from S, and they execute a paper by which they bind themselves to convey to S a sufficient interest in the Peatross estate to secure him for the tobacco. In October i860, E directs her agent, L, to give to S an order from her on the Peatross estate for $4,153.22, to be drawn on whoever the court may appoint to distribute the estate. In 1872 S’s adm’x files her bill to sell E’s separate estate for the payment of this debt, and claims that E’s whole separate estate is liable. E and her present husband do not answer, but her trustee does, and denies her estate is liable. And without directing" any enquiry as to the Peatross estate, or what had been done with E’s interest in it, there is a decree for the sale of E’s land for the payment of the debt. Hei/d:
    i. Liability of Married Woman’s Separate Estate.— Prima facie E’s interest in the Peatross estate is alone liable to the payment of the debt,
    a. Same—Burden of Proof.—If plaintiff insists that the other separate estate of E is liable, and that her interest in the Peatross estate was only taken as collateral security, the burden is on the plaintiff to establish the fact.
    3. Same.—Before the plaintiff can subject the other separate estate of E, she must show that due diligence has been used by S in pursuing the interest of E in the Peatross estate, and that he has failed to make the debt out of that interest-
    4. Same—Defendants.—Though a married woman is to be treated as a feme sole, so far as the capacity to charge her estate with her pecuniary engagements is concerned; yet if in a litigation involving that question, the husband does not choose to defend her interests, and the trustee is negligent of his duty, it is incumbent upon the court to direct such enquiries as will prevent the sacrifice of her rights.
    5. Same—Practice.—The plaintiff having failed to furnish the necessary evidence as to S’s prosecution of his claim as assignee of B’s interest in the Peatross fund, ordinarily the.bill should be dismissed. But as it is apparent that the case has hot "been investigated upon its merits, a result attributable to the conduct of the defendants in a very great measure, the cause will be remanded for further proceedings in conformity to the views expressed by this court.
    *This was an appeal from the decree of the Circuit court of Pittsylvania, made in a cause depending in said court, in which the personal representative of A. A. Smith was plaintiff and Andrew M. Darnall and Eliza P. his wife, Wm. J. Fulton, her trustee, and others were defendants. The bill which was filed1 in 1866, charged that Robert W. Williams, deceased, was in his lifetime the husband of said Eliza P. Darnall; and that he was utterly insolvent. That the said Eliza P. held a separate estate; and that the said Robert W. Williams and his wife Eliza P. made a joint purchase of a crop of tobacco of A. A. Smith, for the sum of $4,153.22, in the year 1860; that said contract of sale was made on the part of said Eliza P. on the faith of her separate property. That at the time of said sale she was possessed and entitled to several tracts of land, derived under deeds, referred to, and also an interest in the estate of her father, Joseph Martin, Sr., deceased. The prayer of the bill is that the said Eliza P. be required to pay the claim of the plaintiff, out of the rents and profits of the said real estate, and for general relief.
    The bill was taken for confessed as to Darnall and Eliza P. his wife. Fulton the trustee, answered. He says he knows nothing of the alleged purchase of tobacco by Williams and wife from the' plaintiff’s testator ; except that a crop was bought by one or both said Williams and wife; the terms of said contract he knows not. He is advised that no such contract as that stated in the bill could have been made to bind the property mentioned in the bill, as will be seen by reference to the deeds mentioned. He does not admit that any property coming to the said Eliza P. by the will of her father, is liable to ttie plaintiff’s demand; but is advised that it comes under *the same trust as that declared in the deed from her father to Joseph Martin trustee.
    By deed bearing date the 20th of November 1849, Joseph Martin, Sr., conveyed to Joseph Martin, Jr., a tract of lánd of seven hundred and sixty-one' - acres, a number of slaves and other personal property, in trust to the sole and separate use of Eliza P. Williams, daring her life, and for • the education and rearing of such children as she then had or might thereafter have. And after a'provision for her husband Robert W. Williams, if he survived her, it was provided, that on her death the property should pass to her children' and their descendants; Or if she died without descendants it should revert to his estate. There were two other conveyances ■ of small tracts of land to a trustee upon the same trusts, which were paid for out of the rents and profits of the property first conveyed.
    By the 6th clause of his will, Joseph Martin, Sr., gives to his daughter Elizabeth, to be secured in trust to his son William Martin, an equal portion with his other children, after deducting what he had theretofore advanced to her and her husband Robert W. Williams.
    In November 1868 the court directed a commissioner-to take an account of the administration of the estate of Joseph Martiri, Sr., by his executor Wm. Martin, so far as to enable the - commissioner to report what amount and description of property was devised and bequeathed to his daughter Eliza P. (in trust, or otherwise) under the 6th clause of Joseph Martin’s will; which the commissioner was directed to report to the court.
    The commissioner reported that Mrs. Darnall had received under the 6th clause of her father’s will one tract of land of three hundred and fifty acres, valued *at $8 per acre, $2,800; that there was due to her from the executor $994.48, of which $949.25 was principal; and there were outstanding debts due to the estate of which her share was $318.18 2-11.
    The plaintiff proved that her testator A. A. Smith, in 1860, sold to Robert W. Williams and his wife his crop of tobacco made on two plantations; and introduced as evidence two papers, the first signed by Mrs. Williams, and the other wholly in her handwriting. The first is as follows:
    “August 7th, 1860.
    “We Robert W. Williams and Elizabeth his wife promise and bind ourselves to convey to A. A. Smith a sufficient interest in the Peatross estate to secure him for his crop of tobacco that we have boug'ht of him: this the -day and date above named.
    (Signed) Robert W. Williams, •
    E. P. Williams.
    The second is as follows:
    Mr. R. W. Eyle. Dear. Sir. You will please give Mr. A. A. Smith an order from me on the Peatross estate for $4,153.22, to be drawn on whomsoever the court may appoint to distribute the estate.
    Yours respectfully,
    E- P. Williams.
    Homewood, October 6th, 1860.
    The only notice of the Peatross estate in the record, is in these two papers.
    The cause came on to -be heard on the 5th of June 1872, when the court held, that the debt of the testator A. A. Smith of $4,-153.22 due October 6th 1860, was contracted on the faith of the separate estate ■ of the said E. P. Williams now E. P. Darnall, and - that- she designed *to charge her separate estate • with- the payment of the same; and the said debt is still due; that the.property devised to Wm. Martin, trustee, for the use of the said E. P. Darnall, is subject to the payment of the debt, of -the. said- plaintiff; and -that the personal estate and-.the rents and profits of the real estate devised by the 6th clause of the will of Joseph Martin deceased, would not be sufficient to pay said debt of $4,153.22 in five years; and it was decreed that Win. Martin do out of his own estate, pay to the plaintiff the said sum of $949.25, with interest from the 1st of January 1871 till paid, to be credited on the debt of $4,153.22 due said estate. And it was further decreed that unless the said E. P. Darnall, or some one for her, should pay the said debt of $4,153.22 with interest, within sixty days from the date of the decree, a special commissioner named, should proceed to sell the tract of land mentioned in the commissioner’s report, in the mode and upon the terms stated in the decree. And thereupon A. M. Darnall and Elizabeth P. his .wife applied to a judge'of this court for an appeal; which was allowed.
    Dabney, Barksdal'e and Williams, for .the appellants.
    Jones & Bouldin and E. E. Bouldin, for the appellee. ,
    
      
      Married Women—Separate Estate—Charging with Debts.—The cases on this subjecthave been collected in Annotations to Leake v. Benson, 29 Gratt. 153; Garland v. Pamplin, 32 Gratt. 305; Irvine v. Greever, 32 Gratt. 411; Justis v. English, 30 Gratt. 565; Ropp v. Minor, 33 Gratt. 97; Frank v. Lilienfeld, 33 Gratt. 377. These cases with their notes are practically exhaustive of the law in Virginia on this still important subject. In West Virginia the principal case is cited with approval in Radford v. Carwilc, 13 W. Va. 658.
    
   Staples J.

delivered the opinion of the court.

The authorities are generally agreed, that a married woman possessed of a separate estate, may charge the same with her debts in like manner and to the same extent as a feme sole; but they are not agreed as to the mode by which the charge may be affected. Some of the cases hold that the intention to charge the separate ^estate must be stated in the instrument evidencing the contract, or the consideration must be one going to the direct benefit of the estate. In other cases it is held, that the execution of a bond or note by the wife, whether as principal or as surety, whether for her own benefit, or that of some other person, is indicative of an intention to charge the separate estate; since in no other way can the instrument have any effect. And this was the view taken in this court in Burnett & wife v. Haupe, 25 Gratt. 481.

Whatever conflict of opinion there may be upon this point,' there is a great weight of authority in favor of the proposition, that the liability of the separate estate , can only arise o.ut of the supposed in-, ‘tention of the wife^ And no pecuniary engagement can be a charge which is not connected by agreement, either express or implied, with the estate. The rule is thus laid down in a recent English case: If a married woman having separate property,enters into a pecuniary engagement, whether by órdering goods or otherwise, which if she were a feme sole would constitute her a debtor, and in entering into such engagement she purports to contract, not for her husband, but for herself, and on the credit of her separate estate; and it was so intended by her, and so understood by the person with whom she is contracting; that constitutes an obligation for which the person with whom she contracts has the right to make her separate estate liable; and the question whether the obligation was contracted in this manner must depend upon the facts and circumstances of each particular case. Mrs. Matthewman’s case, Law R. 3 Eq. 787, 7 Eq. Cases 19; Johnson v. Gallagher, 7 Jurist N. S. 273. And the same view is taken generally in other cases. The engagement must appear to have been made with reference to and upon the faith -of the separate estate, or it cannot be enforced against it. 2 Perry on Trusts, sec. 659.

As the charge is a mere question of intention, the wife may of course extend it to the whole, or confine it to a part, of the separate estate. If no specific part is appointed for the payment of the debt, the fair implication is, that the whole estate was intended to be made liable. If on the other hand, only a part of the estate, expressly or by fair inference, is designed to be charged, no liability whatever can attach to the residue. In all cases the remedies of the creditor will be confined to the particular property upon the faith of which it may reasonably be presumed he chose to rely.

This is a necessary consequence of the rule which exempts the wife from all personal liability, and from all personal decrees and judgments upon her contracts. Her undertaking, so far as it is recognized by the courts, is, not that she will pay the debt, but that her separate estate shall be answerable for it. And that is bound only so far as she has agreed it shall be bound.

In the case before us, at the date of the contract hereafter mentioned, Mrs. Williams, who is now Mrs. Darnall, was entitled to the estate conveyed by the deed of 20th November 1849, to that conveyed by the deeds of 29th April 1853, and of the 5th Januarv 1857, respectively; also to the estate derived under the will of her father; and it seems to an interest in the‘ ‘Peatross estate. ’’ Being thus entitled, Mrs. Williams, on the 7th August 1860, united with her husband in the purchase of a crop of tobacco from the appellee’s intestate. And on the same day they entered into a written obligation, by which they promised and bound themselves to “convey to the intestate a sufficient interest in the Peatross estate to ^secure him for his crop of tobacco. ’ ’ There is no evidence .of any engagement on the part of Mrs. Williams previous to the execution of this bond. The fair inference is, that the purchase of the tobacco and the execution of the paper were contemporaneous acts—parts of the same transaction. At that time Mr. Robert Williams, the husband, was notoriously insolvent. His only means of paying his part of the purchase money was by an advantageous sale of the tobacco. If that failed the whole burden would fall upon Mrs. Williams’ property. Under these circumstances she might be willing to convey or pledge her interest in the Peatross estate, as a security for the purchase money. She accordingly does convey it; but she does not agree to convey anything beyond that.

It is to be inferred that the intestate had made all necessary inquiries upon the subject, and that he was fully satisfied with the security provided for the payment of his ■debt. Two months after the purchase and the execution of the bond, and after the amplest opportunity of informing himself, he procures from Mrs. Williams an order upon her attorney for $4,153.22, the price of the tobacco, “to be drawn on whomsoever the court may appoint to distribute the Peatross estate. ’ ’

This plainly indicated that there was a fund belonging to Mrs. Williams under the control of some court; that her share had been ascertained, and that all parties considered it sufficient to pay the purchase money for the tobacco. Prom that day down to the bringing of this suit, nothing is heard of the order on the Peatross estate, or even the claim of the appellee’s intestate •—so far as this record informs us.

There is no suggestion of any misrepresentation, or *fraud, or imposition, practiced upon the latter by Mrs. Williams in regard to the Peatross estate, or the extent and value of her interest therein. The court is left to grope its way entirely in the dark, as to the nature, character and final results of the transaction. The only satisfactory solution of the matter is, that Mrs. Williams was willing to charge her interest in the Peatross estate with the •debt in question; and the intestate was content to accept the assignment as a sufficient security for his indemnity.

The bill alleges that the sale was made and the contract executed on the credit of the entire separate estate. It is true that Mrs. Williams did not answer; but her trustee did, and his answer sufficiently puts the complainant upon proof of all his material allegations. If in fact the assignment of the Peatross fund was merely by way of collateral security, and not intended to impair the creditor’s remedies against the property generally, it was incumbent upon him to offer some proof of the fact.

But if the complainant had supplied this proof it would then have devolved on him to account for the failure to collect the Peatross fund: what became of the ordei; whether it was ever presented; what was done with that fund; whether the intestate received any part of it; if he did not the reasons of his failure, are questions to which this record furnishes no answer. The bill does not even offer a word of explanation on the subject. And yet the Circuit court, in the absence of any information upon the subject, and without enquiry, has decreed the sale and application of Mrs. Williams’ entire estate, real and personal, derived under the will of her father in satisfaction of complainant’s debt.

It may be very true, that a married woman is to be ^'treated as a feme sole so far as the capacity to charge the estate with her pecuniary engagements is concerned: but if in a litigation involving that question, the husband does not choose to defend her interests, and the trustee is negligent of his duty, it is incumbent upon the court to direct such enquiries as will prevent the sacrifice of her rights. The intestate having taken an assignment of the Peatross estate, he was bound as assignee to exercise due diligence in prosecuting the claim, and in no event could he have any recourse upon the other estate of Mrs. Williams unless he made it appear he had failed to make the claim available without any default on his part.

The complainant having wholly failed to furnish the necessary evidence upon these two points, under ordinary circumstances a dismissal of his bill would necessarily follow. But it is very apparent that the case has not been investigated upon its merits; a result attributable to the conduct of the defendants in the court below in a very great measure. The purposes of justice will be best subserved by remanding the cause to the Circuit court, for further proceedings, in conformity with the views herein announced. It will then be incumbent upon the complainant to make good the averment of the bill that the sale was made upon the credit of the separate estate generally; that the assignment of the Peatross fund was not intended to affect the creditor’s right to resort to that estate; and that the failure to receive it was without default on the part of the intestate or his representatives.

The decree was as follows:

The court is of opinion, for reasons stated in writing and filed with the record, that the bond executed by *Mr. and Mrs. Williams on the 7th of August 1860, and the order given by Mrs. Williams on the 6th October, 1860, constituted an assignment of her interest in the Peatross estate; and that it was incumbent upon the appellee, before he could proceed against the separate property of Mrs. Williams devised under the will of her father, to show that his testator, as such assignee, had exercised due diligence in prosecuting that claim; and that he had failed to recover the same without default on his part.

The court is further of opinion, that in the absence of any opposing evidence, said bond and order are to be regarded as showing simply an intention on the part of Mrs. Williams to charge her interest in the Peatross estate with the payment of the debt due the appellee’s intestate; and if in fact said debt was contracted with reference to Mrs. Williams’ separate property generally, as alleged in the bill, it devolved upon the appellee to establish the fact.

The court is further of opinion, that the said Circuit court erred in decreeing against the estate derived under the will, without inquiry and satisfactory information upon these points. It is therefore adjudged and ordered that the decree of 5th of June 1872 be reversed and annulled; and that the appellee, out of the assets in his hands to be administered, do pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here. And this cause is remanded to said Circuit court, to be proceeded with in conformity with these views. And liberty is given complainant to show that' the assignment of the Peatross estate a's aforesaid, was a mere collateral security, not designed to impair his equitable right to proceed against Mrs. Wil-Tiams’ other separate' pi-operty; and *further to show, that'he or her testator had failed to collect any part of said estate; and 'that, his failure so to collect, wUs without default on the part of said intestate or his .representative. If satisfactory evidence on these points is not adduced within a reasonable time, to be' judged by the said Circuit court, a decree .is tó be entered .dismissing complainant’s bill.

Decree reversed:  