
    
      Wm. Clark vs. Wm. Makenna and Wife.
    
    Property settled on an intended wife, — to be her exclusive property and at her disposal, without being subject to the debts of her intended husband, or to any interference by him, but first to be liable for her own debts and contracts. Held liable for her note, given for family supplies, without looking into the propriety or necessity of the.expenditure.
    Previous decisions, in relation to the liability of wife’s separate estate, reviewed.
    Heard at Lancaster, July, 1839, by Ch. David Johnson,. who decreed as follows:
    Before the marriage of the defendants, in October, 1835, they entered into a marriage contract, wherein it was stipulated that a considerable estate, which Mrs. Makenna inherited from her father, and certain slaves, (a man called Alfred and a woman named Dinah and her future increase,) should be the exclusive property of Mrs. Makenna, and be at her own disposal, without being subject to the debts of her intended husband, or to any interference by him; but first to be liable for her own debts and contracts. No trustee is nominated in the contract. The complainant states, in his petition, that he carried on merchandize in the village of Lancaster, where the defendants resided, and that Mrs. Makenna bought .goods, in his and the other stores in the village, which, by her directions, were charged to her own separate account; and that this was notorious to her husband. That, on the 17th August,. 1836, Mrs. Makenna borrowed of complainant $32, for which she gave her note, representing that her husband was from home, and that she wanted money to purchase flour for the use of the family. The prayer of the petition is, that the defendant, Wm. Makenna, may be decreed to pay the note, or' that it may be decreed to be paid out of the separate estate of Mrs. Makenna,
    
      'Mrs. Makenna lias not answered, and to save the necessity of compelling an answer, it was conceded, on the part of Wm, Makenna, that she would admit the facts stated in the petition.. Mr. Makenna denies, in his answer, all knowledge of the-transaction, as well as of the necessity of purchasing flour for the family use, or to what use the money borrowed was applied.. . He submits'that he is not personally responsible, nor the separate estate of his wife.
    There was no evidence that the money was applied to the uses of the family, except the admission of Mrs. Makenna, implied from the concession that she would, in her answer, admit the truth of the facts stated in the petition. That would-not be evidence against the husband, and consequently,, there is no foundation for the claim on his personal responsibility. The only question, therefore; is whether the separate-estate of Mrs. Makenna is liable.
    The doctrine of the English courts is, that a married woman,, having a separate estate, has the same power over it as if she-was sole, and that she may grant, convey, or charge it. If she make a bond, note, or bill, or other agreement, the Court of Equity will direct satisfaction out of her separate estate :: Wagstaff vs. Smith, (9 Yes. 524;) Essex vs. Atkins, (14 Ves. 542;) Bullpin vs. Clark, (17 Ves. 365;) Norton vs. Turvill, (S. W. 144.) I refer also to the remarks of Judge Nott, in Traziers Trustees vs. Hall et al., (1 M’Cord’s Ch. 275.) The case of Ewing vs. Smith, (3 Equity Reports, 417,) seems to have been understood as conflicting with this doctrine. The principle there laid down is, that the wife has no other or further power over her separate estate, than she derives from the contract, deed, devise, or settlement which conferred it upon her: and it was held, in that case, that the wife was not bound by a bond given, for the debt of her husband, with a view to charge her separate estate, although she was entitled to the annual profits, and might, when received, dispose of them as she pleased. She could not create a charge on them by anticipation, even with the consent of the trustee; and my brother Harper, in Magwood 8) Patterson vs. Johnston, (I Hill’s Ch. 236,) after a review of all our own cases on the subject, concludes that a wife cannot, by her own act, charge the separate estate, and that the court, before it will make it liable, will examine the circumstances and be satisfied of its necessity and propriety.
    In that case, the question has been so fully considered that a further review of the authorities would be useless and unprofitable, and I will only revert to the principle laid down in Ewing 4* Smith, that the wife derives her power over the separate estate solely from the instrument by which it is conferred upon her.
    
      A. want of reference to this principle strikes me as having given rise to some confusion in our own cases, and was, probably, the foundation of the departure from the English rule.
    If a marriage settlement, or other agreement, conferring on the wife a separate estate, clothes her with power of contracting debts and charging her separate estate with the payment, I presume there could be no question about her authority; so-that, in every case, the question is, whether the power is expressly or impliedly given; if the question were now open, I should strongly incline to the opinion that it ought to be implied, in all cases, to the extent of the wife’s dominion over the estate; — to the corpus of the estate, if that was subject to-ller control, and to the income, only, if her powers were limited to that. In the case in hand, the power of contracting debts and thereby charging her estate with the payment, appears to me to be expressly reserved to the wife, in this marriage agreement. It expressly provides that the property shall be at the disposal of Mrs. Makenna, and not subject to the interference of her intended husband, but shall be “ first liable for her own debts and contracts.” Now, the power to contract debts, it is true, is not expressly given, but it is necessarily implied by the covenant that her separate estate should be liable for them. I think, therefore, that the separate estate of Mrs. Makenna is chargeable with this debt; both the income and the corpus, if the first proves insufficient There is no trustee named in the contract, and that duty, according to established rule, devolves on the husband.
    Let the defendant, Wm. Makenna, account before the Commissioner for the rents and profits, or other income of the separate estate of Mrs. Makenna, and, on the coming in of the report, the proper order will be made to give relief to the complainant.
    From this decree the defendants appealed: but,
    
      Clinton, for the motion.
   Curia, per

Johnson, Ch.

We concur in the decree of the Circuit Court. The appeal is therefore dismissed.

Harper and Johnston, Ch., concurred.  