
    James Thompson, and Jane, his wife, and Michael Murray, an infant, by his next friend, the said James Thompson, v. Stevens Perry, James Murray, and Elizabeth, his wife, Robert W. Seymour, and Richard Connoly.
    Contribution among volunteers under separate conveyances, refused. [210]
    Wliat acts will estop a party from setting up a resulting trust. [*210]
    Under what circumstances, a feme covert may dispose of property by way of appointment. [*211]
    Wife not dowable of an estate held by the husband as trustee. [*213]
    Contribution to remove a general lien on the whole property will not be allowed among volunteers, unless there was an inevitable necessity that part of the property should pay it: the necessity cannot exact where the donor is still solvent, for it seems then the creditor might in equity, be forced to exhaust the donor’s estate before proceeding against the property conveyed. [*213]
    Where real estate was conveyed in trust for a feme covert, and to such person as she, by will or deed should appoint, her appointment by will is valid without the concurrence of her husband. [*214]
    The bill which was filed the 21th March, 1832, states, that on the 1st March, 1823, John M, Murray, the former husband of the plaintiff, Jane Thompson, and father of the plaintiff, Michael Murray, purchased a lot in Charleston at the corner of Xing Street and South Bay, for $2,500. That on the 13th of the same month, the said John M. Murray by indenture of release for the nominal consideration of $1000, conveyed the lot to defendant, Stevens Perry, in trust for Catharine Connoly, the wife of Bichard Connoly; and in the release, a power devising the lot notwithstanding coverture, was attempted to be given. That Catharine Connoly, who was the mother of the plaintiff, Jane, and of the defendant, Elizabeth Murray, afterwards in reference to the supposed power, executed an instrument in the nature of a will, by which she devised the said lot to her daughter Elizabeth, (who has since intermarried with James Murray,) on condition that in seven years she pay to the plaintiff, Michael, one thousand dollars, and that defendant, Elizabeth, has, since the death of her mother, remained in possession thereof. That Bichard Connoly, the husband of Catharine, ^having never, either before or after his marriage, given any power or authority to his said L wife to dispose of property by will, or to acquire property to her separate use, her will is absolutely void, and the lot is subject to partition as the estate of the said Catharine : or the trusts of the release having terminated by the death of the said Catharine, the uses of the conveyance result to the grantor and his heirs, and the lot is now part of his estate ; and by his will, he devised his whole estate to the plaintiff, Jane, for life, with remainder to his son Michael. The bill avers that the plaintiff, Jane, was at the time the release of her husband was executed under age, and being ignorant of the object of the parties, and supposing that some equitable family arrangement was intended, renounced her right of dower to the lot, which renunciation, under the circumstances, it is insisted is not binding : that the said lot has been conveyed by defendant, Elizabeth, to Bobert W. Seymour and Bichard Connoly as trustees, by way of settlement on the said Elizabeth and her husband. The bill further states, that on the 25th September, 1826, Bichard Connoly executed two deeds of gifts, one to John M. Murray, the plaintiff’s then husband, in trust for bis daughter Jane, of two negro slaves; the other to Elizabeth Connoly, of three negroes : that one of the negroes so given to the plaintiff, Jane, has been levied on and sold to satisfy an execution against Connoly, and being insufficient, the other negro is threatened to be sold for the same purpose. The plaintiffs insist that Murray and wife stand in the same relation to the debtor as they do, and are bound to contribute equally with them to the payment of this execution.
    The prayer is, that Murray and wife may be decreed to contribute to the payment of Connoly’s debts, for which the negroes so given are liable: that partition of the lot be ordered, if, in the opinion of the Court, it is subject to partition as the estate of Catharine Connoly ; or, if the Court should be of opinion that the lot is in Equity, the property of the estate of John M. Murray, that the defendants may be decreed to convey it according to the limitations of his will, and that in either case defendants account for the rents and profits.
    The answer of Stevens Perry admits the purchase of the lot by John M. Murray — the release to himself as trustee for Mrs. Connoly, with power to devise, and the execution of the will in pursuance thereof. He k206] does not know that Richard Connoly gave his *wife any authority to dispose of property by will or otherwise, but submits that such authority, or his consent may be implied from his knowledge of the release, and requesting this defendant to act as trustee. He admits the execution of M. Murray’s will, but requires proof of the plaintiffs’ (Jane’s) nonage, when she renounced her dower, and submits that such renunciation is at all events effectual.
    The answer of James Murray, and Elizabeth his wife, avers that Catharine Connoly paid John M. Murray, $2750 for the lot conveyed to her by the release, she having funds separate from her husband : that Elizabeth held under the will of her mother until shortly before her , marriage, when she conveyed the lot and the negroes given to her by deed of gift from her father to Mr. Seymour, in trust for the uses of the marriage settlement. They insist that Mrs. Connoly had full power to devise the lot by way of appointment — deny any right to contribution, and rely on the marriage settlement as a purchase for valuable consideration without notice of any equity or lien.
    The answer of Richard Connoly — avers that the purchase of the lot by John M. Murray was made with his (Connoly’s) funds, advanced by his wife to Murray without his knowledge, and with a view, as lie believes, to secure the property to their family : that his wife executed her will without any authority from him, and without his knowledge or consent; and although ho was a party to the marriage settlement between James Murray and his daughter, he did not thereby intend to waive any of his rights ; and as the property was purchased with his funds, he prays that it may be decreed to be conveyed to him. That his wife loaned $1000 of his funds to John M. Murray without his knowledge, and he never knew of it until after his wife’s death. He prays that in any decree which may be made, as the plaintiffs are the lawful representatives of John M. Murray, they may be decreed to account to him for this money. He denies that at the time the release was executed, the plaintiff, Jane, was under age; on the contrary, he believes she was then twenty-one.
    Robert W. Seymour — answers that he is ignorant of the matters charged in the bill: as trustee to the marriage settlement between James Murray and his wife, he prays that in any decree which may be made, the interests of those concerned in the settlement, may be duly regarded and protected.
    =5= 9n*71 *The cause came on for trial before Chancellor Johnston, at J Charleston, January, 1833.
    The plaintiffs gave in evidence .the conveyance for the lot from John M. Murray to Stevens Perry, (expressed to be in consideration of $1000) in trust for Catharine Connoly, and “to the use of such person or persons, for such estate or estates, and for such interest, and in such parts and proportions, and chargeable in such manner, either .absolutely or con-' ditionally, as the said Catharine at any time, by deed or instrument in writing, or by last will and testament to be sealed and delivered by her in the presence of two or more witnesses, shall direct, limit and appoint. ” On which is the renunciation of dower in common form by the plaintiff, Jane, then Murray’s wife.
    The will of Mrs. Connoly, dated 16th August, 1828, was produced, by which, in reference to the power contained in the deed, she devises the lot to her daughter Elizabeth, on condition that within seven years she pay to the plaintiff, Michael Murray, one thousand dollars. As also the will of John M. Murray, dated 18th April, 1829, in which he directs that his personal estate be sold to pay his debts, and if insufficient, that his real estate, to wit: “ my three story brick house on South Bay, as also my two story wooden house, now occupied by me as a dwelling house, &c.,” be sold; “and after the payment of debts, I give to my wife, Jane, my real and personal estate which may remain, during her natural life, and after her decease to my son Michael, &c. ”
    Also, two bills of sale from Richard Connoly, to his daughters, Jane and Elizabeth, as stated in the bill, dated 23d Sept., 1826, with clauses of warranty “ against all persons,” the first purporting to be in consideration of §150, and the last of §100.
    Certain judgments against Richard Connoly were given in evidence, on account of which it was proved, one of the negroes in the bill of sale to Jane was sold, leaving still unsatisfied balances.
    The defendants gave in evidence, the deed of marriage settlement, dated 31st Dee., 1829, between James Murray of the first part, Elizabeth Connoly of the second, and Robert W. Seymour and Richard Connoly of the third; whereby, in consideration of a marriage intended between the two first, the said Elizabeth conveyed to the two last the said lot and negroes mentioned in the deed and bill of sale, in trust for the use and benefit of the said Elizabeth and James during her life, and to such person as she by will should appoint.
    *It was proved that John Murray came to Charleston a poor r=i£208 young man, about 1820, and worked as a tradesman at low wages *- until May, 1821, when he married the plaintiff, Jane, and commenced merchandizing.
    William Carter, of the firm of Bee & Carter, sworn. Was a broker in 1823. Was employed by Mrs. Beach and Mrs. Gilchrist to sell two lots, one at the corner of South Bay and King streets ; the other adjoining it on King street. Sold them Jan. 10, 1823, separately. At the sale, they were set down to John M. Murray, each at the sum of §2,500. Before the sale, John M. Murray and Richard Connoly came to witness, together, and gave him to understand that Connoly was to buy the corner lot, and Murray the other. When titles came to be made, witness, recollecting this, remarked to them, upon finding that titles were to be made to Murray for both lots, that he was surprised at it. They replied, the matter was understood between them-. John M. Murray always gave witness to understand, that the money paid for the corner lot was paid by Mrs. Connoly. Although the titles were made to Murray, yet there were two bonds and two title deeds, one for each lot. The bonds were for the same amount, drawn by the same obligors, and payable at the same time ; but secured by separate mortgages, one for each lot. Mrs. Beach and Mrs. Gilchrist put both bonds into witness’ hands. Murray paid part of the money to them before witness received them, and took loose receipts in general terms. After witness received them, he made partial payments, and took the same kind of receipts. Witness therefore had a right to enforce either mortgage for the balance left. But conceiving that the lot he considered Connoly’s had been paid off by Mrs. Connoly, through Murray, he put Murray’s bond in suit, and enforced the mortgage on his lot — that is, the lot on King street.
    Mrs. Murray sworn — objected to. Connoly and wife lived at the corner of King street and South Bay. Had two children, Mrs. Thompson and witness. There were leased houses on the lot when sold by Bee & Carter. The houses belonged to different persons from those who owned the lots.
    Witness knows that her mother paid $2150 for the corner lot. Murray charged $250 for the difference in the value of the lots. Witness lived in the house, and knew of each payment when made Her mother paid to John M. Murray, who came for the money to carry it to Carter.
    *Has heard Murray and her mother often in conversation about -I it: they always said the payments were made by her. He had not the means He had not even the means to pay for his own lot when he bought it — had been keeping store and boarders but a short time.
    Heard Murray often say he had not the means to begin with, but that her mother gave him $1000 for that purpose.
    Her father and mother were in possession, before the purchase, of the corner house, and continued to live together there till 1826, when he went to his plantation, leaving her mother, &c., there. He urns backwards and forwards after that time. There was a misunderstanding between her father and mother, which sprung up about that time.
    Has never, to this hour, heard any one whatever say that her mother did not pay for the house.
    Murray, in 1826, borrowed from her mother $1000, to aid Mm in buying a lot on South Bay. He promised to give a note for the loan— promised in witness’ presence. The note was to be payable at two years. The loan was to be free of interest, for two years, and then to bear interest at five per cent. He bought the lot, which he owned at his death ; but he never gave the note. Her mother repeatedly asked for it: his reply always was, that he would go and write the note, and bring it: but he never did so. Her father knew nothing of this loan. John M. Murray died in 1829, after witness’ mother.
    Just before her mother’s death, she deposited a large sum in specie, in the United States Bank. Can’t tell the amount.
    Cross-examined. Sometimes her mother delivered the money in payment of the corner lot to Murray’s wife, who delivered it to her husband. She took no receipts. The money passed confidentially. Her mother was to have the bonds delivered to her when the last payment was made.
    Presumes the money was saved by her from a store kept by her and her father, in which they did a pretty good business. No money came to her mother but from the store. The store was kept in her father’s name.
    The $2150, the $1000, and the other $1000 loaned, all came from the store. Her father knew of the profits of the store, but left it to his wife to take care of them.
    *2101 The testim01U going to show a resulting trust, given by Carter,* J and Mrs. Murray, and the testimony as to the loan of the $1000 given by the latter, was objected to, on the ground that it was incompetent to prove the trust by parol; and on the further ground that the resulting trust and loan could only be set up by cross-bill. The evidence was received subject to the objections, in order to avoid a new trial.
    Johnston, Chancellor. The first question among those discussed is, whether the plaintiffs, Thompson and wife, are entitled to contribution for the slave sold, and to have James Murray and wife decreed liable with respect to the slave threatened with sale. It is unnecessary to go into this matter at all, since this being a case of separate conveyances, unless there is something to make Richard Connoly liable to the plaintiffs, no one holding under him can be made responsible. If the bills of sale, in contradiction to their terms, be held mere gifts without warranty, then Richard Connoly, and of course other volunteers under him, holding by separate conveyances, are not responsible to these plaintiffs. • If the bills of sale set forth the real terms of the transfer, then these plaintiffs have ample remedy if Richard Connoly be solvent; and there is no allegation in the bill of his insolvency. Besides, it is not alleged that the debts of Connoly existed, or bound the slaves when conveyed by him.
    The next point concerns the lot at the corner of King street and South Bay.
    The evidence satisfies me that the funds with which the lot was purchased never belonged to John M. Murray, and that the title was never intended to vest in him. He was, therefore, really a trustee, and merely executed a trust when he conveyed to Perry. The conveyance carried the fee out of him; and his wife’s dower was well renounced also, her allegation of infancy not being proved.
    As, in reality, John M. Murray was a mere trustee, even if there had been a defective execution of the power of appointment by Mrs. Connoly, his legatees could not complain. ■ The property might as well rest where it is, or in Perry’s hands, as to be brought back, where it would be liable to a trust.
    If any body could object, it would be Richard Connoly, with whose funds the lot was purchased, and to whom a trust resulted.
    But he cannot object. It appears from what he told Carter, that he consented to the investment, and to the titles going in the name - *of Murray: and his becoming a party to the marriage settle- L ment between his daughter, Elizabeth and James Murray, closes his mouth, on the score of a resulting trust.
    The only doubt that could exist in the matter was, whether the execution of the power of appointment by Mrs. Connoly was sufficient.
    First, whether an interest was conveyed by Murray sufficient to extend to the estate which she appointed I feel satisfied the objection is groundless, upon a due construction of the words of the deed. I am also satisfied, that the purpose for which the conveyance was made, would of itself extend the interest parted from by Murray as far as was necessary to cover the appointment provided for in the same instrument. (1 Mod. 104 )
    If Mrs. Connoly’s appointment was invalid, it was not because the estate appointed was not out of Murray to the full extent of her appointment ; nor because it was not rendered subject to her appointment to the extent to which she did appoint; but it must be because she was not competent to execute the power.
    The objection is, that she was not competent either to receive or to execute the power without her husband’s permission. If necessary, I should hold that she was: the power was a naked power of appointment, not coupled with a trust. In such case the husband was not responsible, as he would have been for the malexecution of a trust; and therefore that control, which would be necessary to his protection in the latter case, is not given him in the former.
    But I am satisfied from the evidence that her husband consented to the arrangement, of which this was a part, before the titles passed to Murray. Carter’s evidence shows this. Again, his joining in the deed of settlement on James Murray’s marriage, is evidence of his assent to the appointment. 3 Atk. 196.
    John M. Murray’s will is dated several months after Mrs. Connoly’s was admitted to probate, and recorded; and by that will he acquiesces in everything done. He does not pretend to claim the lot. He specially describes all the real estate he has, using the words, “ my real estate, to wit: — my three story brick house on South Bay, ‘ and ’ my dwelling house and grocery at the lower end of King street.” There is no residuary clause in the will. Here -then he describes two lots as his whole real estate, one of which joins the one in question, but never intimates a claim to it.
    *As respects Thompson and wife, the bill must be dismissed. As respects Michael Murray, the time for his claiming the $1000 has not rolled round; and, therefore, it must be dismissed as regards him also.
    The $1000 claimed by Richard Connoly cannot be recovered without a cross-bill, if with one. It looks like a legal demand. It is decreed that the bill be dismissed.
    The plaintiffs appeal from this decree on the grounds :—
    1. That the deed which empowered Mrs. Connoly to make a will, being a post-nuptial deed, is invalid to confer such power on a married woman; and that therefore the will itself is void and of no effect, being executed during her coverture, and that too without the knowledge of her husband.
    2. That the claim of plaintiffs for contribution towards thejamount of Connoly’s debt, with which the negroes were chargeable, (both the sisters having the slaves as gifts frpm the father,) ought to have been allowed by the Chancellor, the same being a clearly equitable and just claim as among volunteers.
    3. That Mrs. Thompson is, at all events, entitled to dower of the premises in dispute, she being in her minority when she renounced it.
    4. That the decree is in other respects contrary to the laws of the land, and unsupported by the weight of testimony in the cause.
    
      Bailey, for the appellants.
    On the first ground, cited Co. Lit. 12, a Harg. n. 6 ; Co. Lit. 3, a.; 2 Roper, H. & W. 108 ; 2 Rep. 51. As to the plea of a purchase for valuable consideration without notice, the instrument under which defendants’ claim gave notice, 2 Foub. 151-66, § 3; Grimke v. Grimke, 1 Eq. Rep. 366; Stat. Eq. Rep. 292; 2 Bail. 332.
    
      Dunkin, contra.
    As to the power of a feme covert to dispose of property by way of appointment, cited 4 Kent’s Com. 319; 3 John. Ch. 549, Bradish v. Gibbes; Hearle v. Greenbank, 3 Atk. 696 ; Sugden, 830 ; 2 Yes. 191. Connoly may be estopped by being a party to the marriage settlement; if not, a trust results to him.
    
      Lance, in reply,
    cited 1 Cruise, 483; 2 Yern. 61; 1 Black 441; 4 Com, Dig. Estates by Grant, 8; 1 Bacon Ab. 300, Tit. will; 2 Roper, 90, 100. As to contribution, 1 Mad. 233.
   *O’NealIi, J.

Upon the plaintiffs’ "third ground of appeal, it is only _ necessary to remark, that the Chancellor says that there was no proof L - á of the infancy of the plaintiff, Mrs. Thompson, then Mrs. Murray, at the time she renounced her dower. This is a Very sufficient answer to the ground. But without saying that even infancy would avoid her renunciation of dower, there is another view which would prevent her from being endowed of the premises, According to the proof, her husband (Murray) purchased the premises as a trustee for Mrs. Connolly, and paid for them with money furnished by her. His seizen was therefore entirely in trust, and of such an estate, it was held in the case of Plant v. Payne, 2 Bail. Rep. 319, the wife could not be endowed.

As to the plaintiffs’ second ground, there can be as little difficulty; for let it be conceded that generally, as among volunteers, there ought to be contributions to remove a general lien attached upon the whole property conveyed ; yet this case cannot have the benefit of such a rule. Eor a contribution can never, be asked for on account of the removal of a common burden on property conveyed, unless there was an inevitable necessity that a part of the property conveyed should pay it. Screven v. Joyner, executor, and others, 1 Hill’s Ch. Rep. 261, This inevitable necessity or compulsion to pay might exist among volunteers, where the donor had given to them his whole' estate, and was thereby rendered insolvent, or had given to them a part of his estate, and had subsequently become insolvent. But such necessity or compulsion cannot exist when the donor is still solvent, and a creditor seizes and sells the property given, or the donee pays the donor’s debts. For in such a case the creditor either has no right to sell the property at law, or in all events in equity, and would be forced, on a proper application to exhaust the donor’s estate before he would be allowed to go against property which his debtor had given away. In this case it is not pretended that the donor is insolvent; and it hence follows that there cannot have been that inevitable necessity or compulsion to pay out of the property conveyed to the plaintiff, Mrs. Thompson, which is necessary to entitle her to contribution from the other donee. This view of the case is upon the supposition that the plaintiff, Mrs. Thompson, and her sister, Mrs. Murray, the defendant, had been shown to be donees in possession at the time the sheriff sold the slave conveyed to Mrs. Thompson, and decides the case upon the most favorable footing on which the plaintiffs could put it.

*The first ground of appeal makes the question, whether the ¡-.¡.«, . deed from John M. Murray to Stevens Perry, the trustee, could L' 4 empower Mrs Connelly (a feme covert) to make a will ? I am satisfied, both that the power could be conferred on a married woman, and also that it was well executed by her will, and that the express consent of the husband is wholly immaterial to the validity of either. For notwithstanding in general legal contemplation, the existence of the wife is merged in that of the husband during coverture, yet this rule is not of such universal application as to render every act of the wife void. It seems she may even purchase and hold real estate without the express consent of her husband — that her acquisition cannot be defeated by any one but him, so long as he may live. For in Coke, upon Littleton 3, a. 122-3, it is said, “ a feme covert cannot take any thing of the gift of her husband, but is of capacity to purchase of others without the consent of her husband, and of this opinion was Littleton in our books and in this book, section Gil; but her husband may disagree thereto and divest the whole estate ; but, if he neither agree nor disagree, the purchase is good ; but after his death, albeit her husband agreed thereto, yet she may, without cause to be alleged, waive the same, and so may her heirs also, if after the decease of her husband she herself agreed not thereunto.” In this case neither the husband nor the heirs of the wife ask to set aside the conveyance to the wife : the plaintiffs regard the conveyance as good, but the power to appoint as void. But, if the wife could purchase, she might on any conditions, and under any limitations, and it is the privilege of the husband during coverture, of herself or her heirs after his death, to affirm or dis-affirm the whole contract; a part cannot be taken and a part rejected— all or none must stand.

If, however, the wife was incompetent to execute the power conferred on her by the deed, then her will would be void, and the land must either revert to the grantor, Murray, or be distributed as her estate. It seems to be well settled, “that every person capable of disposing of an estate actually vested in himself, may exercise a power or direct a conveyance of the land. The rule goes further, and even allows an infant to execute a power simply collateral and that only ; and a feme covert may execute any kind of power, whether simply collateral, appendant or in gross, and it is immaterial whether it was given to her while sole nr married. The concurrence of the husband, is in no case necessary.” (i Kent Com. 318, 319.) This is the language of one of the greatest chancery ,-, lawyers of the present *day, Chancellor Kent; and it cannot be ¿ necessary to do more than refer to his clear statement of principles, by which this part of this case must be put at rest. It may be well however to look to the manner in which an appointment operates, to show that no objection can in facb exist to an execution of it by a feme covert. The appointee is merely designated by the person making the appointment; his estates and rights are derived from the deed creating the power. As is said in Bradish v. Gibbs, 3 J. C. R. 550, the principle is well established that when a person takes by execution of a power, he takes under the authority of .that power. The meaning is, as Lord Hardwicke expresses it, that the person takes in the same manner as if the power and instrument executing the power had been incorporated in one instrument, and as if all that was in the instrument executing had been expressed in that giving the power. This being the case, and the appointee taking nothing from the wife, but all from the person creating the power, there can be no reason to avoid her act on account of coverture, the disability of which is intended both for the protection of the husband and also for herself.

It is ordered and decreed that Chancellor Johnston’s decree be affirmed.

Johnson, J., and Harper, J., concurred.  