The opinion of the court was delivered, by
Strong, J.
All the title of Mrs. Brown was derived immediately or mediately from Robert Fleming. By his will, dated December 17th 1844, and proved April 17th 1845, he devised all the residue of his estate, not previously disposed of, to a nephew and his four nieces, of whom Mrs. Brown was one, to hold to them,-their heirs and assigns, as tenants in common. The devise was accompanied by the following declaration : “ It is also my will, that the property hereby bequeathed to my said four nieces for their sole and separate irse, shall bo free from all liabilities for the debts and contracts, or other engagements, of any husband or husbands, each or any of them has or may at any future time have.”
Mrs. Stewart, also one of the four nieces (devisees under Mr. Fleming’s will), subsequently died, after having made her will, which was duly proved on the 5th of July 1856, by which she devised to her sister, Mrs. Brown, to and for her sole and separate use, the residue of her estate not otherwise given. To this devise she added the following provision: “ But it is my will that the aforesaid devise and bequest to my sister Margaret shall be and enure to and for her sole and separate use, free from any debts, contracts, engagements, or liabilities of her present or any future husband, and that she is to enjoy the full income of the same (after paying the before-mentioned sums bequeathed by me) during her lifetime, and that at her death all that share here devised and bequeathed shall go, and I do hereby devise and bequeath the same, to such person or persons, and for such estates, as the said Margaret shall by her last will appoint, and in default of appointment, or so far as the same, if made, may not extend, I give, devise, and bequeath the same to her son, Robert F. Brown, and his heirs.”
When these devises were made, Mrs. Brown was a feme covert, intermarried with William Brown, and her coverture has not yet ceased.
*238The first question raised by this record, and the only one which it is necessary for us to consider, is, whether, during the life of her husband, Mrs. Brown has power to mortgage the property devised to her by these wills, or either of them.
It is plain that the interest devised in each of them was a separate estate. The gift was expressly to the.sole and separate use of the devisee, and the husband was also excluded by the provisions that the property should be free from any of his debts, contracts, engagements, or liabilities. It was' not the less a separate estate because the gift was made without the intervention of a trustee. That is wholly unimportant. The wife’s interest is the same, whether the gift is to her directly or to a trustee for her. It does not depend upon the formal mode in which the gift has been made. At law she can hold no separate estate in lands; such an estate is recognised only in equity. And if lands be given to her separate use, and no trustee be named, a court of equity will convert the husband into a trustee for her. This is too firmly settled to admit of question. See Clancy on Married Women 256, and cases collected in Hare & Wallace’s Notes to White & Tudor’s Leading Cases in Equity, Vol. 1, p. 414. It has often been so ruled in this state. And as the wife’s interest in her separate estate is not affected by the fact that there is no trustee named in the instrument creating her estate, as it is the same in such a case as it would be had there been a trustee named, there is no reason why her powers, incident merely to ownership of the estate, should be greater in one case than in the other. The deed or will which settles the property to her separate use, may give powers which, without it, do not belong to the ownership of a separate estate; but the nomination of a trustee is neither an enlargement, nor is it restrictive, of her power over the property.
Regarding, then, the lands devised to Mrs. Brown by Mr. Fleming and Mrs. Stewart as in equity, held in trust for her sole and separate use, the rule in this state is, unless it has been changed by the Married Women’s Act of 1848, that she cannot alienate or encumber them unless the power to do so was expressly conferred by the wills that gave her the separate estate. This was the rule laid down in Lancaster v. Dolan, 1 Rawle 231, and it was unflinchingly adhered to in numerous cases, certainly until after the passage of the Act of 1848 ; and it has been maintained ever since, unless Haines v. Ellis, 12 Harris 253, was a departure. In The Pennsylvania Insurance Co. v. Foster, 11 Casey 134, it was reiterated, and that in view of the provisions of the Act of 1848, which were regarded as defining a different separate estate in a wife from an equitable separate estate created by a conveyance to her separate use. True, there was no trustee named in the first of these cases, and there was in *239the second; but that, as we have seen, can have nothing to do ■with the wife’s power of disposition of the estate granted. Now the very purpose in making a settlement to the separate use of the wife, is to exclude the husband. “ But,” as was well said by Gibson, C. J., in Thomas v. Folwell, 2 Whart. 11, “to exclude his direct control, which consists in an exercise of legal power, and yet leave him the means of giving effect to an indirect control, which consists in an exercise of personal influence, is to do nothing.’* He added: “ The modern doctrine of courts of equity is founded on what appears to be a misconception of the leading purposes of a settlement, which is obviously to disable the husband, and not to enable the wife, at least further than may be consistent with the security of her title, of which the grantor ought, in the particular case, to be the judge. The object is not so much to give her the dominion of a feme sole, which every man of experience knows would, in a countless number of instances, defeat the principal intent, as to withdraw the estate from the dominion of the husband.” Similar observations have been made by others, and they are most just. All experience proves that the highest protection of the wife against her husband is in her disability, in her want of power to yield to his solicitations, or give way to her sympathies. It was knowledge of this which led to the adoption of the rule in Lancaster v. Dolan, rather than its opposite ivhich prevailed in some other states. Now, it would be strange indeed, if the Act of 1848 has taken away from the wife any of that protection of her separate property against her husband which she enjoyed before its enactment. It was because it was thought she had not protection enough, that the act was passed. Her separate property was secure. She had no other power over that than the donor had chosen to give her expressly. If the deed or will which made the settlement gave her no power of alienation, no solicitation of the husband, no practice upon her affection or her fear, could avail to enable him to obtain control of the estate settled to her separate use. But her legal pstate, whether acquired before or after marriage, was all unprotected. Of this, her chose in possession became absolutely his; he succeeded to her dominion over her choses in action, and to the legal ownership of the use of her realty during life. This was the supposed mischief for which the legislature undertook to provide a remedy, not by taking away the wife’s security for her equitable separate estate, but by making her legal estate, that which her husband could reach, inaccessible to him, by converting it into what was denominated in Pennsylvania Insurance Company v. Foster, a legal separate estate. It was, perhaps, not surprising, that the same sympathy for the wife which led to the passage of the act, should find its way into the courts, and receive expression in Cummings’ Appeal, *2401 Jones 272, in which it was held that “ a married woman must hereafter be considered a feme sole in regard to any estate, of whatever name or sort, owned by her before marriage, or which shall accrue to her during coverture, by will, descent, deed of conveyance, or otherwise.” It was soon, however, discovered that such a construction of the act would defeat the object which the legislature had in view in passing it, and Cummings’ Appeal was overruled. It was while the doctrine of that case stood unchanged, that Haines v. Ellis was- decided. The true meaning of the act had not been ascertained, and it was misunderstood. Standing by the broad language used in Cummings’ Appeal, the court said of a deed to a married woman for her sole and separate use, that “ it gave her precisely the same estate which any conveyance in the ordinary form of a deed in fee simple would give since the Act of 1848.” There is no trust created. There is no • trustee appointed, nor is there any occasion for one. There is no restriction imposed by the conveyance upon her right to sell. It is not the case of a power, but of an interest. It w'as for these reasons ruled that she might convey. Certainly, however, unless the Act of 1848 caused a change, a deed to a married woman for her separate use, does create a trust, though no trustee be named, and it is restrictive of the wife’s power to sell or mortgage. On that subject, silence is prohibition; and it is plain that the Act of 1848 has no reference to the form or effect of a deed or will. It touches only the effects of the marriage relation. It does not undertake to say that what was a trust before its passage is a trust no longer, or to make that a legal estate which before was merely equitable. The truth is, Haines v. Ellis is not consistent with the doctrine asserted in the later case, The Pennsylvania Insurance Company v. Foster, 11 Casey 134. There is no substantial difference between a trust implied from the separate nature of the use declared, and one expressly given in trust for a separate use; and if, as was held in the case in 11 Casey, the latter is not affected by the Act of 1848, the former cannot be.' With much force was it remarked by- the learned judge of the District Court, that “ even if the estate of the feme covert in Haines v. Ellis was merely legal, we should still be at a loss to distinguish that case from The Pennsylvania Insurance Co. v. Foster, or to give any sufficient reason why the trust in the latter should not have been governed by the rule laid down in the former. The equitable estates and interests of married women cannot be withdrawn from the operation of the Act of 1848 for one purpose, without withdrawing them for all, and depriving them of the protection which that act was meant to afford. If trusts are not within the enabling power which Haines v. Ellis ascribes to that act, as it regards the wife, it cannot be within its disabling operation on *241the husband, and he may still exercise the same control over them as before the act was passed, in plain contravention of its general scope and meaning.”
In fine, we have no doubt the ease of The Pennsylvania Insurance Company v. Foster was well decided; that the Act of 1848 has no reference to estates settled to the separate use of married women, whether a trustee be named in the deed of settlement or not, and that in both cases married women have no power of alienation beyond suchas are expressly given in the instruments by which the estates are created. Haines v. Ellis is not a correct enunciation of the law. And as neither by the will of Mr. Fleming nor by that of Mrs. Stewart, was any power conferred upon Mrs. Brown to mortgage her separate estate, her mortgage to the plaintiff was unauthorized and void.
The judgment of the District Court is revei’sed, and judgment is given for the defendants on the case stated.