57 Miss. 451 | Miss. | 1879
delivered the opinion of the court.
/The plaintiff in-error filed his bill in the Chancery Court of Coahoma County against John Williams and his wife for the purpose of collecting out of the separate estate of Mrs. Wil
The object of the bill is to enforce collection of this note out of the land of Mrs. Williams, devised under this will; and the position of the complainant is, that Mrs. Williams holds this property as her separate estate by virtue of the will alone, and unaffected by the statutes of this State on the subject of the property of married women ; and that the power of Mrs. Williams to charge this separate estate is to be determined, not by the provisions of those statutes, but by the general principles of equity in relation to the separate estates of femes covert, held under settlements, or other instruments. On the other hand, it is contended that the estate devised by the will is a legal estate, and the wife’s power over it, in the absence of any specified grant of larger powers in the will, must be regulated by the statutes alone; and that the doctrines of courts of equity in relation to the separate property of married women are applicable alone to equitable estates.
It has heretofore been settled in this State that the statutes on the subject of the property of married women do not fix and regulate the powers of femes covert as to equitable separate estates held by them. Musson v. Trigg, 51 Miss. 172 ; Doty v. Mitchell, 9 S. & M. 435 ; Montgomery v. Agricultural Bank, 10 S. & M. 566 ; Andrews v. Jones, 32 Miss. 274; Block
The will of Mrs. McGuire secures to Mrs. Williams a separate estate, which a court of equity would recognize and protect if our statutes on the subject had never been passed. In that case she would have had the power to charge the estate by her contracts, according to the rules which courts of equity had recognized and established in relation to such estates. The fact that there is no trustee appointed to hold the legal title would have made no difference. A court of chancery would have treated the husband as trustee (Kenley v. Kenley, 2 How. 751), and, at all.events, would secure her the rights
There is nothing in the statute prohibiting these settlements to the separate use of the wife. On the contrary, the plain intent of the statute is to secure her a separate estate where the instrument under which she derives title would not without its aid produce that effect. If it be held that the statute intended to regulate her rights when there is a settlement securing her a separate estate, it would in effect destroy her . capacity to take' under a settlement, there being nothing, in that view, which could be regulated by such an instrument. 'There is as little foundation for the view that the statute intended to regulate her power of disposition, when the instrument creating the separate estate failed to point out any specific mode of alienation ; for under the later cases in this State no mode of disposition is necessary to be specified in the settlement, the power of disposition being that of a feme, sole, and resulting not from an express grant of it eo nomine, but from the fact of ownership.
But it is said that the powers of the wife as to her separate estate were only conceded when the estate was equitable. We do not perceive the force of the distinction. The wife’s power of disposition relates to her ownership, not to the nature of her title, and it is not seen how her power would be diminished by the fact that she had a complete legal title and full ownership instead of a mere equity. The inquiry on this point is as to the ownership of a separate estate by the wife, not as to the nature of the title, whether legal or equitable. When she has ownership, then, as an incident to it, she has the jus dis-ponendi. She is never obliged to look to the statute for her power to contract and charge.her estate except when she must look to it for her title. Here the wife need not refer to the statute. The devise is to her sole and separate use, in which her “husband shall have no right or interest.” The
/ It is next insisted that by the law of Louisiana the promissory note of the wife, made as surety for her husband, is void for want of the capacity of the wife to enter into such a contract, and that, being void by the lex loci contractus, it is void everywhere. This position is true, if the giving of the note has no other effect than what it purports to have on its face, viz., a personal obligation of the wife. But it is charged in the bill and admitted by the demurrer, that at the time this note was made in Louisiana the wife had a separate estate in realty, situated in this State, and that she contracted with referehce to this separate estate, and intended to charge it by the promissory note in controversy. Whether this purpose can be carried out with reference to realty here, notwithstanding the fact that the note is void by the law of Louisiana, is the question presented for our consideration. The note, if made here, would be equally void by our laws to bind the wife personally ; yet, notwithstanding this, it would be held, if made with the intent and purpose alleged in the bill, to be a valid charge against her separate estate situated here.
It is generally true that the capacity of a married woman to make a contract will.be determined by the law of her domicile ; but this is not the rule when her contract relates to her estate in realty, situated in another jurisdiction. Judge Story says : “ The general principle of the common law is that the laws of the place where such [immovable] property is situate exclusively govern in respect to the rights of the parties, the modes of transfer, and the solemnities which should accompany them. The title, therefore, to real property can be acquired, passed, and lost only according to the lex rei sitce.” Story Confl. Laws, § 424. And quoting from Sir William Grant: “ The validity of every disposition of real estate must depend upon the law of the country in which that estate is situated; ” ■he says “ The same rule would also seem equally to apply to express liens and to implied liens upon immovable estate.” Mr. Burge, as quoted by Judge Story, in a note to § 445 of the
The application of these principles will furnish a safe solution of the question under consideration. The capacity of Mrs. Williams to take this property, and her rights and powers over it, are derived from and regulated by the law of this State. Her power of disposition and dealing with it are, by our laws, impressed on the property itself. As to none of these things has the law of Louisiana the slightest influence. If she had made a contract expressly disposing of this property, it will not be denied that, though void by the laws of Louisiana, either for her want of capacity to act, or the want of the observances of the forms and solemnities prescribed by
But there is no real conflict between the laws of Louisiana and Mississippi in reference to the contract. By both laws the note is void for what it purports to be on its face, — a personal obligation of the wife ; and it is void for the same reason in both, viz., the personal incapacity of the wife. The difference between the two laws is as to the effect on the real property of the wife in the respective jurisdictions of the two States, and as to which, as we have above seen, the law of the State in which the realty is situated is the exclusive test. If the note had not been void by our laws, as the personal obligation of the wife, we should nevertheless, out of comity to a sister State, adjudge it void to that extent, if attempted to be enforced here ; but the principle of comity does not require a State to regard the laws of any other State, so far as they may affect contracts in relation to real estate situated in the former State,
Decree reversed, demurrer overruled and cause remanded.