74 Wis. 582 | Wis. | 1889
As we have concluded that a married woman cannot lawfully be an assignee of a debtor under an assignment made for the benefit of his creditors under our statute, we do not feel called upon to express an opinion as to whether the learned circuit judge was justified in non-suiting the plaintiff on the question as to whether the assignment was void because made to hinder, etc., the creditors of the assignor.
It was shown on the trial that the assignee was possessed of a separate estate of her own, that she was an attorney at law, and that she had done business on her own account for several years before this assignment was made. It is contended by the learned counsel for the appellant that the statute under which this assignment was made evidently contemplates that the assignee shall be a person who can bind himself or herself by his or her personal bond, and that a person who is incapable of binding himself or herself by a personal obligation or bond is disqualified to act as assignee; that an assignment, therefore, to a minor or an insane person would be void; that it is equally clear that a married woman cannot lawfully be appointed as-
We think it very clear that our statute regulating assignments contemplates that the assignee must be a person who is competent to bind himself or herself by a personal obligation such as is required bjr the law to be given by the as-signee. The main object of the statute was to so regulate assignments as to protect the interests of the creditors. Under the common law, and before the legislature intervened to regulate assignments, the crying evil of assignments was that no interest was secured or protected except that of the assignor. Under the present statute the as-signee is required to give a personal bond; and it certainly contemplates that when the bond is given by the assignee he or she shall be bound by such bond. The material inquiry is whether a married woman can bind herself by a personal bond given in an assignment proceeding under the statute. On the part of the learned counsel for the respondent it is contended that she can so bind herself. Tt is unnecessary to cite authorities to support the proposition that a married woman could not, under the rules of the common law, bind herself by such bond.
Is there anything in our statute that has given a married woman the privilege of assuming this responsibility, and subjected her to responsibilities against which the common law protected her? The immunity which the common law gave to tbe married woman of not being bound by her personal obligations -was rather in the nature of a privilege and protection than of a disability, and this court, as well as all others, in giving construction to statutes which are intended to remove tbe disabilities of married women, has been careful not to construe them so as to remove the protection which the common law afforded; and it has only held that personal contracts shall bind the married woman
While it is admitted that the law is as above stated, it is, however, insisted —first-, that at common law a married woman could act as trustee; and, second, that under our statute she is authorized to act in the capacity of a trustee, and, as a necessary incident to her right to act as trustee, she can bind herself by executing the bond required by law to qualify her to act as such trustee. We think the authorities are clear that at common law a married woman was not a competent trustee in any case in which the law required, as a prerequisite to the power to act as trustee, the execution by the trustee of a personal bond for the faithful execution of such trust. Perry, in his work on Trusts (3d ed.), sec. 50, says: “Another inconvenience arises in probate and other trusts where the trustee may be required to give bonds for the faithful administration of the trust. . . . A married woman can enter into contracts only in relation to her sole and separate estate; and how far she can bind herself or her estate by a bond to execute a trust in property, the beneficial interests in which belong to another, would always be a perplexing question, although the sureties in such a bond might be liable.” Again, in sec. 51, he says: Courts “ will not appoint married women to such offices ” (meaning trusts where the trustee is required to give a personal bond for the faithful execution of the trust).
It is claimed that these sections are not to be considered as a statutory declaration of the disabilities of a married woman, but as limitations of her rights in certain specified cases, and consequently that there can be no fair deduction drawn from this legislation that it was intended to prevent a married woman from performing the duties of a trustee in other cases, although, in such other cases, it became necessary for her to give a personal, bond in order to be appointed. This contention would have great force if either by the statutes regulating the rights of married women, or by the common law, it could be fairly held that she was legally authorized to take upon herself the performance of. a trust which required' from her the execution of a personal bond. We have seen, from what is stated above, that she was not considered by the courts competent to take upon herself the execution of a trust, when by law ho one could be trustee without giving a personal obligation for the
The other argument in favor of her power is that the statutes regulating the rights of married women, by a just construction, giv.e her the right to become such trustee, and consequently the right to bind herself personally by giving the bond required by law. It is claimed that such power is conferred by secs. 2343, 2345, E. S. 1878, which secure to the married woman her individual earnings. It is said that securing to her her individual earnings necessarily implies a right on her part to enter into business from which she may derive earnings; and that such construction of the statute has been approved by this court. See Brickley v. Walker, 68 Wis. 563, 571, 572, and cases cited in the opinion. Although this court has shown a disposition to give a liberal construction to the provisions of the statute which remove the burdens which the common law imposed upon married women, there has been no disposition to so construe the law as to take away the protection which such law gave to her in relieving her from liability oh her personal contracts; and it is only when the removal of" such protection as to her personal liability upon her contracts becomes necessary to the full enjoyment of her rights under the statute that she has been held capable of binding herself by a personal contract. See cases above cited. The statute which secures to a married woman her individual earnings, and which, by a most liberal construction, authorizes her to engage in the ordinary pursuits from which earnings may be derived, cannot, we think, be fairly construed to authorize her- to assume the execution of official trusts, when the law requires that the person assuming such trusts shall execute a personal bond to secure the faithful performance thereof. Such construction would, as we think, be détrimental to her interests, rather than beneficial to them, and would subject
In view of all the laws in force in this state regulating the rights of married women at the time the respondent undertook to assume the duties of assignee of the said P. C. Bartell, we are constrained to hold that the bond executed by her was void so far as she was concerned, and that in consequence thereof the assignment was void, and that she must respond to the appellant for the money and property in her hands belonging to the said P. C. Bartell, or to the said firm of Bartell Bros., at the time of the service of the garnishee summons, upon her. Of course she will not be held liable for property which she received as such assignee and which was taken from her possession by title paramount to the title of the said Bartells or either of them. Whether she should be held liable beyond the amount she has received upon the sale of said property must depend upon her good faith in making such sale. This matter, we think, should be adjusted by the circuit court.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded to the circuit court to enter judgment as indicated in this opinion. The court may, if it is deemed necessary, take further testimony as to the amount of money or property in the hands of the respondent subject to garnishment by the plaintiff.