—The statute subjects the wife’s separate statutory estate to liability “ for all contracts for articles of comfort and support of the household, suitable to the degree and’condition’in-life of the family, and for which the husband would be responsible at common law; ” to be enforced by ac
At common law, marriage in a great degree was a merger of the civil existence of the wife in that of the husband. She became incapable of contracting, or of acquiring, holding, or disposing of property. Therefore, on the husband devolved the duty of maintaining the wife. From this duty, arises his liability for necessaries furnished her. The liability is raised by the law, only to compel the performance of the duty. It is not intended to infringe upon the authority, or the discretion, properly permitted the husband, to control his domestic affairs. The liability is for necessaries. This term does not seem to have received, or to be capable of a very exact definition. In its general signification, it embraces food, raiment, medicines, medical assistance, and habitation, comporting with the social position of husband and wife, and with the fortune of the husband. Beside these, we sometimes find it declared, that such other articles as are in keeping with the degree in life, and the fortune of the husband, such articles as a prudent husband would ordinarily furnish the wife, and as she could reasonably expect to be allowed her, are to be reckoned as necessaries. The term is used, at common law, as. fixing the extent of the implied authority of the wife by her contracts to bind her husband ; and as fixing the limit of the liability of a husband, who has not made proper provision for the wife, to a stranger supplying her wants. The signification of the term does not seem to be varied, whether applied to the one case or the other. When the limit of - necessaries is passed, the authority implied, or the liability raised by law, terminates. The term is relative, and most often what are necessaries is a question of fact for the jury, rather than a question of law. Food, raiment, habitation, of a quality suited to the degree and condition in life of one wife, could not be allowed another, without subjecting the husband to a liability for the extravagance of the wife. In each case, the husband is bound to maintain the wife; the law compels him to furnish her with food, raiment, and habitation ; but the quality of these must be measured by his ability to pay for them. When these are supplied, the legal duty of the husband is performed; the power of the
In the enactment of the statutes creating the separate estates of married women, the interests and convenience of the wife are not alone consulted or regarded. It was not intended only to save the estate from the ownership of the husband, and vest it in the wife. The purpose was to create a trust estate, of which the children of the marriage are, if not technically, yet in fact, with the wife, beneficiaries, and to preserve it from the dominion of husband or wife, as a means of support to the wife and children. In furtherance of this purpose, the husband takes the income, as trustee, freed from liability to account. The income is not a gift to the husband. He takes it as trustee, as the head of the famity, to be applied to the comfortable support of the wife and children. Pie is exempt from liability to account, because such liability would be an invasion of his authority as husband to regulate and control his domestic affairs, and would provoke litigation ’ that would mar and destroy the peace of the family. On this separate estate, a narrow, limited liability is fixed by law — it is exempt from the satisfaction of any and all debts, whether contracted by husband or wife, other than debts “ for articles of comfort and support of the household.” A liability for these is fastened on the estate, without regard to the ability of the husband when they are purchased to pay for them, and without regard to whether credit for them was or not extended to the husband only. Sharp & Wife v. Burns, 35 Ala. 653. The limited liability thus imposed on the estate, indicates the intention of the legislature to guard it from waste, by the extravagance of
Tlie judgment in tbe case of Ditmars & Co. is reversed, for the error in overruling tbe demurrer to the replication, and in tbe case of Gill, for tbe same error, and tbe error in tbe charge of tbe court, and tbe causes are remanded.