The opinion of the court was delivered, May 11th 1869, by
Agnew, J.
Two questions are presented for our decision— one as to the power of Mrs. Ann Atherton to convey her separate estate, and the other as to the validity of the curative Act of 1863. The parties having united in treating the estate of Mrs. Atherton under the will of Jacob Gould as a fee simple, it is unnecessary to examine the will in this respect. The effect of the devise was to vést the estate for her sole and separate use, freed from the debts of her husband, and without power to convey during coverture. The will took effect after the passage of the Married Woman’s Act of 1848, and it is thought this enabled her to convey, there being no trustee named in the will. But the want of a trustee does not change the nature of the trust, which is upheld in equity as well without as with a trustee : McKennan v. Phillips, 6 Wharton 571, and authorities cited on p. 575; Jamison v. Brady, 6 S. & R. 466; Cochran v. O’Hern, 4 W. & S. 95; Heath v. Knapp, 4 Barr 228; Wright v. Brown, 8 Wright 238. That the Act of 1848 produced a radical change in the condition of a married woman is undoubted as to the title to her estate. This had relation to her right of property, not to the powers she can exercise over it. At common law the husband was the absolute owner of her chattels and the profits of her real estate, and might by reduction to possession become owner of her choses in action. The Act of 1848 changed this rule and vested the title entirely in the wife. It was this title which the husband sought to control in Cummings’s Appeal, 1 Jones 272, where Judge Rogers used the language often criticised, that a married woman must hereafter be consi*326dered a feme sole in regard to her estate, and may dispose of it by will or otherwise as a feme sole. Taking the language as it should be, in reference to the subject he was discussing, to wit, her title and her husband’s power over it, the language is not so obnoxious to criticism as it is sometimes supposed. Certainly it does not countenance the use sought to be made of it in this case, as favoring her right to sell an estate settled to her separate use without a power of sale. At the time of her deed to Mr. Dorrance in 1854, it had not been said by this court that the Act of 1848, liberated an estate settled upon a married woman to her separate use without a power of sale, from the limitations of the settlement recognised in Lancaster v. Dolan, 1 Rawle 231" court="Pa." date_filed="1829-03-27" href="https://app.midpage.ai/document/lancaster-v-dolan-6314287?utm_source=webapp" opinion_id="6314287">1 Rawle 231, and a long line of cases following it. To have said so would have been to overthrow the donor’s right to control his own property within the bounds of his legal authority, and to limit the extent and operation of his gift. This is the root of the error which has led to the attempt in this case to overturn the authority of Wright v. Brown and Wife, 8 Wright 224. There is a wide difference between an enactment that a married woman’s property shall continue her own as fully after marriage as before, and that all property accruing to her, shall be owned, used, and enjoyed by her as her own separate property, without liability to the debts or the control of her husband, and an act to confer rights she does not possess, and actually withheld from her by the instrument conferring her title. We see no ground, therefore, on which Mr. Dorrance could conclude that he was buying a good title when he took Mrs. Atherton’s deed for the property given to her by Jacob Gould without a power of sale. Such was the effect of his will without resorting to the express restriction on her power of sale, which makes the legal effect certainly no weaker. Jacob Gould had a right to control his gift so that she should have no power of parting with the estate under the influence or dictation of her husband. We see no reason to disaffirm Wright v. Brown and Wife, while the argument in its favor is so fully stated in the opinion it is unnecessary to defend it.
The second question cannot avail the plaintiff in error. Mrs. Atherton held the estate subject to the restriction imposed by the donor, having no right and no power to sell it, and in this condition died, her husband surviving her. By the terms and effect of the testator’s will the property passed to her heirs. The estate became vested absolutely in them, and their title was both legal and equitable. It did not descend to them charged with a trust or a moral obligation imposed upon them to confirm the deed to Mr. Dorrance. In this condition the Act of 22d April 1863, found the estate. It undertook to make the deed of a married woman (who had no trustee) of like force and effect as if a power of sale had been contained in the instrument creating *327her separate estate. The effect of the act was simply to divest the estate of the children, by conferring upon the mother, years after her death, and after the estate had vested in them, a power to sell, which she did not possess under the will or at law, up to the time of her death. This was an arbitrary and unjust exercise of power, quite as flagrant as that complained of in Norman v. Heist, 5 W. & S. 171, and in Dale v. Medcalf, 9 Barr 108. Many cases have been cited to prove that this legislation is merely confirmatory and valid, beginning with Barnet v. Barnet, 15 S. & R. 72, and ending with Journeay v. Gibson, 6 P. F. Smith 57. The most of them are cases of the defective acknowledgments of deeds of married women. But there is a marked difference between them and this. In all of them there was a power to convey, and only a defect in the mode of its exercise. Here there is absolute want of power to convey in any mode. In ordinary cases a married woman has both the title and the power to convey or to mortgage her estate, but is restricted merely in the manner of its exercise. This is a restriction it is competent for the legislature to remove, for the defect arises merely in the form of the proceeding and not in any want of authority. Those to whom her estate descends, because of the omission of a prescribed form, are really not injured by the validation. It was in her power to cut them off, and in truth and conscience she did so, though she failed at law. They cannot complain, therefore, that the legislature intervenes to do justice. But the case before us is different. Mrs. Atherton had neither the right nor the power during coverture to cut off her heirs. She was forbidden by the law of the gift which the donor impressed upon it to suit his own purposes. Her title was qualified to this extent. Having done an act she had no right to do there was no moral obligation for the legislature to enforce. Her heirs, have a right to say: This was our grandfather’s will. The estate was vested in us because there was no power to prevent it in accordance with his will. The legislature cannot take our estate and vest it in another who bought it with notice on the face of his title that our mother could not convey to him. Menges v. Wortman, 1 Barr 218, the strongest case cited outside of the line of deeds defectively acknowledged, is no longer authority except in the case itself: Dale v. Medcalf, 9 Barr 108; Spragg v. Shriver, 1 Casey 286; Menges v. Dentler, 9 Id. 495; Lycoming v. Union, 3 Harris 172. The true principle on which retrospective laws are supported was stated long ago by Duncan, J., in Underwood v. Lilly, 10 S. & R. 101, to wit: where they impair no contract or disturb no vested right but only vary remedies, cure defects in proceedings otherwise fair, which do not vary existing obligations contrary to their situation when entered into and when prosecuted. The same principle is stated by Strong, J., in the last case cited by the plaintiff in error: *328Journeay v. Gibson, 6 P. F. Smith 60. Such legislative acts, he says, are sustainable only because they are supposed not to operate upon the deed or contract, by changing it, but upon the mode of proof.
We see no error in the record, and the judgment is therefore affirmed.