87 Md. 161 | Md. | 1898
delivered the opinion of the Court.
This is an appeal from a decree of the Circuit Court of Baltimore City, dismissing the bill of complaint filed by the .appellant against Sarah G. Macgill, Carroll S. Macgill, her husband, and James McEvoy, trustee. The bill alleges ithat on the 16th day of September, 1895, Sarah G. Macgill .■gave the appellant her note for the sum of two thousand •dollars, which she borrowed from him with the understanding and agreement that it should be payable when demanded •out of her separate estate, whether held in her own'name •or by the intervention of her trustee, James McEvoy, and that it was her intention and purpose to bind and charge her separate estate with the payment thereof. On the ,10th day of September, 1894, which was a day or two before Mrs. Macgill, who was the widow of George B. Graham, deceased, was married to Carroll S. Macgill, she executed ,a deed of trust by which she assigned and conveyed to James McEvoy, trustee, all property which she had derived from the estate of George B. Graham, and which she might receive from her daughter, Isabella Brown Graham, in trust, “to collect, receive and after making all proper deductions for taxes and other charges thereon, to pay over the net rents, profits, dividends, interest and income of all said property, real, personal and mixed, to her, the said Sarah G. Graham, during her natural life, into her own hands and not to another, whether claiming by her authority or otherwise, for her sole and separate use and upon her separate receipts withotit power of anticipation, and excluding all right or interest in or power over the same of any husband she may have or any liability for his debts, contracts or engagements.’’ It then provides for the disposition of the property after her death.
It is conceded that the debt was contracted by Mrs. Mac-gill with direct reference to her separate estate and that it was her intention to charge the same. The testimony on that point is ample under the decisions of this Court to charge any separate estate she had with this debt, unless there be other reasons for its exemption.
But whether one who is the owner of property can thus place it beyond his own control and power of alienation— especially beyond the re^ch of his creditors—presents another question. The case of Warner v. Rice, 66 Md. 436, goes very far towards denying such right. George Warner and others conveyed to a trustee certain property which had been left them by their father by a deed in which certain trusts were declared bj the grantors. The property of George Warner sought to be made liable to attachment in that case had by the deed been made subject to a declaration of trust as follows: ” In trust for the use and benefit of said George Warner and his immediate family, free from
But this case of Warner v. Rice is clearly distinguishable
But conceding this to be the law as to those who are sui juris, how far does it apply to married women or to a deed made by one in contemplation of marriage? That is the important .and most difficult question before us. The doctrine of the separate estate of a married woman was purely a creature of equity and worked a radical change in the principles of the common law applicable to the marital relation, as affecting the rights of property between husband and wife. In Buckton v. Hay, 11 Ch. Div. 645, the Master of the Rolls said that “ it was considered that to give it to her without restraint would be practically to give it to her husband, and therefore to prevent this, a condition was allowed to be imposed, restraining her from anticipating her income, and thus fettering the free alienation,” and in Tullett v. Armstrong, 4 Myl. and C. 377, Lord Chancellor Cottenham said, “ The separate estate and the prohibition of anticipation are equally creatures of equity, and equally inconsistent with the ordinary rules of property. The one is only a restriction and qualification of the other. The two must stand or fall together.” And again, “ It being once settled that a wife might enjoy separate estate as a feme sole, the laws of property attached to this new estate, and it was found, as part of such law, that the power of alienation belonged to the wife, and was destructive of the security intended for it. Equity again interfered and, by another violation of the laws of property, supported the validity of the prohibition against alienation.” In other words, the reason that the English Courts permitted these restrictions on property of a married woman, although they
Without meaning to say that the facts and reasoning are in all respects applicable, the Massachusetts and Pennsylvania cases are more in accord with our views of the proper
The decree will be reversed and the cause remanded in order that the lower Court may pass a decree requiring the
Decree reversed and cause remanded.
Page, J., dissents.