As there was no trustee provided by the marriage settlement, the legal title necessarily vested in the husband by the marriage, if he reduced the property into possession, for the reason, that the separate estate created in the wife by the settlement is the creature of equity alone, and the possession could not in a court of law be referred to it, and must therefore be considered as attaching to the husband in that character. We concede that, having the legal right, he might have maintained an action at law for any direct or consequential injury done to the property, and, also, that he might interpose a claim and try the right under sections 2581, 2588, 2589, &c., of the Code.
We agree, also, that the mere fact that a trust has been
It is urged, however, on the part of the appellee, that under the Code (§ 2131) the wife is authorized to sue in her own name, in a court of law, whenever the suit relates to her separate estate. Whether the terms of this section are broad enough to warrant a suit by the wife for damages, for the injury or conversion of the property to which the section applies, or to institute in her own name a claim to try the right, it is unnecessary now to decide, as we are of the opinion that the section referred to does not apply to the separate estate of the wife which, as in this case, was not created by the law, but by the act of the parties before the existence of the law. What we mean by this is, that the statute has created for the wife an estate, which it has declared shall not be subject to the debts of the husband (Code, § 1982), and to which certain incidents are attached (§§ 1983, 1987, 1989); and this estate is the only separate estate which the Code recognizes, and its provisions have no application to equitable estates or interests in the wife which were created by the act of the parties before the passage of any statute, and to which other and different incidents attach.
It follows, that as Mrs. Gerald could not sue at law as a feme sole, nor call upon her husband as a matter of right to interpose his legal title for her protection, chancery is the
In relation to the merits of the suit upon the evidence, we say nothing, for the reason, that they were not passed upon by the chancellor.
Decree reversed, and cause remanded ; the appellees paying the costs of this court.