#### Mansel Hall, et al., *vs.*Christina *W.*Faust, et al.

Where the separate estate of a married -woman living apart from her husband, was declared liable for necessaries furnished her, a sum exceeding the income was allowed to the creditors.

'The married woman during the lifetime of her father, lived with and was maintained by him, she then having no separate estate. Her separate estate afterwards acquired was not charged with debts contracted during that time.

Interest not allowed on the demands for necessaries established against her, although for some of them she had given notes.

BEFORE DUNKIN, OH., AT FAIRFIELD, JULY SITTINGS, 1857.

This case came before the Court on exceptions to the report of Mr. Sterling a special referee. The report is as follows.

“ The Circuit decree states that ‘ this is a creditor’s bill whereby the plaintiffs seek to subject to the payment of their demands the distributive share of the defendant, Christina W. Faust, in the estate of her father, the late Dr. William Bratton, who died intestate on the 1st December, 1850.’ Under proceedings for the partition, of Dr. Bratton’s estate, the share of the defendant, Mrs. Faust, has been vested, temporarily, in her next friend, ¥m. M. Bratton, to prevent the marital rights of Faust from attaching, but no trusts have as yet been declared. Faust has disclaimed. That decree adjudged the claims of the plaintiffs, then before the Court to be established, and authorized the other creditors to establish their demands before the Commissioner.

“ On appeal from this decree, it Was held that the defendant had no authority to bind her separate estate, except as derived *377from tbe provisions of tbe settlement, (wbicb settlement bas not yet been perfected); and that under tbe circumstances, it was ‘ tbe peculiar province of this Court to interfere, as well for tbe benefit of the married woman, as for tbe protection of those who have supplied her necessities. But we are of opinion that tbe plaintiffs asking tbe aid of this Court, their recovery may properly be restricted to such articles as were necessary and proper for tbe defendant in tbe condition in society wbicb she occupied. Tbe decretal order of tbe Circuit Court is modified accordingly.’

“ Tbe Commissioner of this court being a nominal party, I have been requested by tbe parties to act as a special Commissioner under tbe order of reference.

“ Tbe estate of tbe defendant, Mrs. Eaust, consists of cash and bonds in tbe bands of tbe commissioner, - $3,055 58

“ Cash in tbe bands of her trustee, exclusive of interest as by bis statement presented - - 1,725 20

Total cash, - $4,780 78. “And twenty-seven slaves, which, at tbe moderate estimate of six hundred dollars each, will

amount to.$16,200 00'

“ Making a total value of defendant’s estate of over twenty thousand dollars.

“ It appears by tbe record and evidence that tbe defendant,. Mrs. Eaust, married in 1837, and was deserted by her bus-band about three years after, when she returned to her father, with whom she resided until, bis death, in December,. 1850. In June, 1851, she removed to Georgia, was divorced in that State, October, 1852, and there married ¥m. Eaton, 1st November, 1853. Dr. Bratton was a very wealthy man, indulgent, but of rigid economy; bis family occupied the front rank of fashionable society, and so far as appearances indicated, tbe expenditures of Mrs. Eaust were not greater than those of Dr. Bratton’s other daughters by a second *378marriage. Sbe bad no means of ber own, prior to bis death, and tbe witness inferred that sbe was supported by ber father, as tbe rest of bis family were. Mr. G-racey, a brotber-in-law, says sbe was so treated; that Dr. Bratton opened an account with him in 1836, and requested him to let Mrs. Eaust have such articles as sbe desired and as be thought sbe needed, and that be (Dr. Bratton) did not wish ber to contract accounts in Winnsboro.’ Her accounts at witness’ store in Columbia amounted annually from two hundred and fifty dollars to three hundred dollars, which Dr. Bratton paid. This witness did not regard ber cautious and prudent in money matters, and thinks sbe was easily imposed upon. Other accounts of tbe defendant were paid by Dr. Bratton; one with McMaster for five or six years, amounting to four or five dollars annually; a small account contracted with Adger in 1843 and 1844, and accounts contracted with Catbcart up to 1843 or 1844. This is tbe substance of tbe evidence, on tbe general merits of tbe case.

Tbe claims presented may be most conveniently classed under tbe following beads:

“ 1. Claims admitted to be proper and entitled to payment.

“ 2. Claims arising in tbe life-time of Dr. Bratton.

*“ S.*Claims 'to which tbe statute of limitations is pleaded.

u4. Claims arising subsequent to Dr. Bratton’s death.

“ 1. Tbe following claims are admitted:

1. Jer. Cockrell’s account, - $226 16

2. W. A. Morrison & Co.’s account, - - 10 65

3. J. B. McCants’ note and interest, - 84 45

*“2.*Tbe claims arising in tbe life-time of Bratton are those of—

“ 1. James Nelson, (of whom W. B. Bobertson is assignee,) on an account contracted between April, 1847, and April, *3791849, settled by note 6th January, 1858, for five hundred and forty-eight dollars, and interest from date.'

“2. Three notes, belonging to ¥m, Harrison and wife, given in settlement of account contracted in 1844,1845,1846 and 1847, as follows:

A. Note dated 9th January, 1846, for - - $408 41

B. Note dated 22d February, 1847, for - - 110 35

0. Note dated 20th Jánuary, 1848, - - under seal.

Interest from January 1, 1848, for - - - 127 07

Besides the claim of M. Hall, to be noticed hereafter.

“ The account of Nelson embraces articles of dry goods such as befitted defendant’s condition, and amounted to four hundred and twenty-four dollars and seventy-five cents. When this account was closed by note, interest was added in, amounting to five hundred and forty-eight dollars. Mr. McOants testified that he submitted the matter fairly to the defendant — is sure that he told her she was not liable for interest, and thinks he mentioned to her that he did not “regard her liable on the account — and that she replied, that it was a just debt and she wanted to pay it.” Interest was added with her knowledge and consent. This witness states that it was a matter of indifference to him whether she gave the note or not. The note seems to have been cheerfully executed, and amounts, with interest, to seven hundred and twenty-nine dollars and forty-four cents. The account produced is headed, “Dr. Bratton for Mrs. Eaust;” but Dr. Bratton’s name does not appear in the original entries on . the ledger, the charges being made to Mrs. C. Eaust.

“The claim of Mr. Harrison and wife (formerly E. B. Campbell) is for the three notes above, the consideration of which are articles of millinery, furnished from 1844 to 1848. The account for 1844 and 1845 amounts to seven hundred and sixty-seven dollars and thirty-seven cents. *380But the witness proved that Dr. Bratton had paid on this acccount, four hundred dollars, and Mrs. Eaust forty dollars, and that the note for four hundred and eight dollars and forty-one cents (A) was given for the balance. If she is not mistaken as to the account to which this credit was applied the consideration for the full amount does not satisfactorily appear, and I reduce the amount of this note to - $328 37

And interest from 19th July, 1846, - - 263 17

$591 *54*

The second note is for - - - - $110 35

The account produced only shows - - 67 30

Which with interest from March 4th, 1847,

amounts to. 48 53

$115 38

“ The third note (0) is for one hundred and twenty-seven dollars and seven cents. The account produced is for one hundred and twenty-one dollars and seven cents, which, with interest from 1st January, 1848, is two hundred and one dollars and ñfty-seven cents.

The demands thus reduced amount, without

interest, to.$516 74

And with interest, to - - - - ■ - 908 94

“ The witness stated that the old books had been supposed valueless, and portions of them had been destroyed. Letters of defendant were introduced, running through a series of years, admitting the indebtedness, (’though not the amount,) accompanied by the strongest promises of payment. Those subsequent to her father’s death, and within a short period of the last marriage, contain expressions of the strongest anxiety, to obtain possession of the property to pay these and other debts, if it exhausted her entire means. In one letter, (with*381out date) slie says: ‘ wbat am I to do ? before God be (Dr. Bratton) gave me five last year, and this year, before my Maker, I bave not bad a dollar. Ob! I cannot stand it, if my father was a poor man, then I would expect nothing; there must be some alteration and that soon, for the rest bave money.’

“ 3. The statute of limitations is pleaded to the account of M. Hall and that of S. Wolfe. The account of M. Hall extends from April, ’48, to April, ’49, and is for one hundred and ninety-one dollars and fifty-nine cents. If the plea is available, and the currency of the statute is stopped at the filing of the bill, these demands -previous to 1st June, 1850, are barred. Two letters are offered in evidence, without date,. containing strong promises of payment, one indicating that it was written in Dr. Bratton’s lifetime, and the other requesting indulgence ‘ until the middle of February.’ The witness was incompetent to prove the dates, but I gather that the letter was written in the fall either of ’49 or ’50; and, in the absence of evidence, I adopt the latter, as by the usage of merchants, accounts are not demanded until January, and a portion of this account was contracted in 1849. If this be correct, the account is not barred, but the evidence is slender. I am more inclined to adopt the view suggested by plaintiff, that the statute is not applicable, this not being the case depending on promises express or implied. But the sum of twenty-six dollars and forty-eight cents of this account was originally charged to Dr. Bratton, and subsequently transferred to Mrs. Eaust. The witness undertook to explain that the charges and changes were made by Mrs. Eaust’s directions, but, on objection made, I excluded this proof. The amount originally charged to defendant, is one hundred and sixty-five dollars and eleven cents.

“ The account of S. Wolfe was for the most part contracted subsequent to Dr. Bratton’s death, and amounts to one hun*382dred and forty-eight dollars and eighty-one cents; of this, items amounting to twenty-eight dollars and sixty-eight cents, were sold in April, 1850, more than four years prior to the filing of this bill, from which deduct ten dollars paid in cash, June 25, 1850, (before any other articles are charged,) leaves barred eighteen dollars and sixty-eight cents, if the plea of the statute be available. In that event the account will be reduced to one hundred and thirty dollars and thirteen cents; of this latter amount, the sum of two dollars and fifty cents was contracted before'Dr. Bratton’s death.

“ 4. The accounts, &c., contracted subsequent to Dr. Brat-ton’s death, are as follows:

1.J. W. Shaw, for articles of jewelry, - - •$36 80

2.W. T. Walter, for articles of millinery, 191 43 Closed by note, interest from 1st Jan., 1852, 73 70

265 13

3. Brice *&*Boddy, dry goods, - - - 318 00

4. M. Campbell, for millinery, - - 95 12

.Close by sealed note, interest annually,

from 1st January, 1852, , - - 42 92

138 04

5. John Seigling, note for Piano, - - 400 00

Interest from 1st January, 1853, - - 126 00

526 00

*3836. Hayden & Brother account for jewelry, - $131 00

Note for jewelry, .... - 200 00

Interest from December 1st, 1853, - - 49 93

380 93

7. O. H. Dnryee, note for cash lent, - - 236 00

Interest from 28th October, 1852, - - 77 23

Do. account for cash lent, - 200 00

Interest from 20th August, 1853, - - 53 *90*

$567 13

*“*All these demands are sufficiently proved. As to that of W. T. Walter, it is conceded that the note was given in settlement of the account produced, for articles of millinery furnished in 1851. The proof by the books would not have been sufficient to establish the account, (the book of original, entries not being produced,) but the admission that the note was given in settlement of the account, established it more satisfactorily tó my own mind than the proof by original entries, if such had been made.

*“*I am much embarrassed in attaining a conclusion in this case. If I am to understand the opinion of the court, as deciding that the estate of the defendant is only liable for necessaries in the sense, in which that term is used when applied to demands against infants, or married women when actions are brought against their husbands, I should feel much difficulty in recommending the payment of any of the demands contracted in Dr. Bratton’s lifetime, even although subsequently recognised, and this is the view urged by defendant. But under the circumstances of this case, I do not understand the Court so to have held. The application is here for payment out of defendant’s own estate, and not out of the estate of Dr. Bratton, or her husband; it is simply that she herself *384having the means should pay for the articles furnished her, at- her own request. The reason of the appplication of the strict rule, in cases of infants, is, that they may, not become the victims of the fraud of designing men ; but although Mr* G-racey proves that she was not cautious and prudent in money matters, and, in his opinion, easily imposed upon, she certainly does not occupy the position of an infant, nor demand, in that respect, the protection of the court. The protection of the court was sought and extended, to protect her estate from the hands of her husband, who had deserted her, and not from her creditors, in whose behalf she. herself asked', as stated in the circuit decree, that her estate might be placed in her possession. In taking a practical view of the case presented, it seems to me that it would be a much greater fraud to turn the plaintiffs out of court than suffer the defend-' ant, a person of full age, to use their property, and then refuse payment therefor, when her means are comparatively ample. I infer from the correspondence principally, that until her last marriage, she, herself, was anxious to have all the debts discharged, and that the present resistance dates from that period. If, then, these demands were against the estate of Dr. Bratton, or against the husband, to be paid out of his own means, I should feel bound to exclude a large part, if not all, the demands arising in his life-time, and to reduce to some extent those that have since arisen. But the honesty of the claims of the plaintiffs, most of whom I personally know to enj oy a high reputation for integrity, induces me to suppose that the opinion of the court does not demand of me the rejection of these claims. The answer of the defendant is not sustained, but directly contradicted by the oaths of those witnesses who have been examined as to distinct portions thereof. I have hesitated most as to the claims of Hayden, Brother & Go., for jewelry, and that of Seigling for a piano, both furnished since the death of Dr. Bratton. But I cannot say that these articles were improper and unnecessary for a lady of the defendant’s *385means and condition in life — at all events, they are articles not consumable in tbe use; and there being no tender of a return of tbe articles, I am of tbe opinion they should be allowed.

“ A serious question presents itself in regard to tbe allowance of interest. After reflection, I think that while the liquidation of the accounts furnished the best evidence of the correctness, yet as the court has decided that they are not to be treated as contracts *per se,*I exclude the interest, except as to claim of Mr. McCants, where it is admitted, and that of Duryee, for cash lent, which character of demand carries interest *per se.*

*“*I recommend the demands be paid as follows:

1. Jeremiah Cockrell, - $226 16

2. W. A. Morrison & Co., - 10 65

3. J. B. McCants, .... 85 45

4. W. B- Bobertson, Assignee for Nelson, .424 75

*5. Wm.*Harrison and wife, 516 74

6. Mansel Hall, - 165 11

7. S. Wolfe,. 148 81

8. J. *W.*Shaw, - t - - 36 70

9. W. T. Walter and wife, 191 4g

10. Brice & Boddy, .... 318 00

11. Mary Campbell, .... 96 12

12. JohnSeigling, 400 00

13. Hayden, Brother & Co., 331 00

14. Charles H. Duryee, 567 13

15 J- B. Mickle, Assignee, - 100 00

$3,617 05

“ I recommend that these sums be paid to the respective parties out of the cash funds in- the hands of the Commissioner and trustee.

*386*“*Three items of C. H. Duryee’s claim for money lent, as to which separate proceedings have been instituted, and the demand of W. B. Peak, presented since the reference, will form the subject of a supplemental report, possibly at the present term.”

The decree of his Honor is as follows:

DuNKXN, Ch. It has been already determined that the defendant, Christina *~W.*Faust, being a married woman, was incapable of binding herself by a éontract, and that she had no authority to charge her separate estate. But it was further ruled, that in the anomalous situation, which she had occupied since her desertion by her husband, those persons who had supplied her with necessaries suitable to her condition in life, had an equitable claim on her estate now under the control of this Court.

The special referee has very properly classified the demands which were presented before him, and the cause was heard upon exceptions to his report. Adopting the order suggested in the report, the Court will first consider the claims originating prior to the death of Dr. Bratton, in December, 1850. According to the testimony of Mr. Cracey, (who had married a sister of the defendant,) she was young at the time of her marriage with Clement C. Faust, in 1837. They lived together but a few years, and in 1840 she was left with her father, Dr. Bratton, a highly respectable and wealthy gentleman of 'Wmnsborough, with whom she continued to reside until his decease. During this interval, Mrs. Faust had no means, and was entitled to no estate. She was supported by her father like the rest of his family, and as she had herself been supported prior to her marriage. It was not until the death of her father that she became entitled to an estate as one of his distributees. For any articles furnished to Mrs. Faust during this period, the only legal claim *387of tbe creditor was upon tbe husband; or, it may be, upon tbe father, so far as be authorized tbe transaction. It is very questionable whether this class of claimants falls within either the principle, or the reason of the appeal decree. As she had no estate, so it does not appear that her husband was in any better condition.

According to the evidence, she lived, during these ten years, with her father, Dr. Bratton — appeared as one of the family, and was treated as such. Mr. Gracey said that her father opened an account with him, and requested him to let Mrs. Eaust have such articles as she desired, and as witness thought she needed. This witness is the proprietor of a large and fashionable store in Columbia. Dr. Bratton told him that he did not wish her to contract accounts in Winns-borough. He further stated that Mrs. Eaust’s annual accounts with him amounted to from two hundred and fifty to three hundred dollars. The testimony of John Adger proves that Mrs. Eaust was abundantly supplied by her father, and his statements throw much light upon the relations which subsisted between them. Mrs. Campbell, another witness, proves that at one time Dr. Bratton paid her four hundred dollars on a millinery account of Mrs. Eaust, for. the years 1844 and 1845.

It is superfluous to recapitulate the evidence; but the claimants of this period have manifestly failed to show any such necessity on the part of Mrs. Eaust, for the articles they furnished, as would entitle them to the aid of this Court.

The defendant’s fifth exception, is, therefore sustained.

After the death of Dr. Bratton, in December, 1850, the situation of Mrs. Eaust became entirely changed. ■ She had no longer his support and protection, and her sole means consisted of her interest in his estate. In June, 1851, Mrs. Eaust removed to the State of Georgia, where she has ever since resided.

It appears from the previous decree in this cause that, in *3881851, proceedings were instituted in tbis Court for partition of Dr. Bratton’s estate, in wbicb Mrs. Eaust was a party plaintiff, and lrer husband, C. C. Eaust, a defendant. No final decree lias yet been made in that cause; but, so well as the Court can understand, Mrs. Eaust was entitled to between twenty and thirty slaves, besides between three and four thousand dollars in cash. By certain interlocutory orders, the income was directed to be paid to Mrs. Eaust, for her support and maintenance. Eor the reasons stated in the report of the special referee, he has not made up the accounts of the trustee. But the estate of Mrs. Eaust is now estimated at about twenty-one thousand dollars; ‘and of the cash reported to be in the hands of the Court and of the trustee, it is very clear, that nearly two thousand dollars consists of surplus income. The defendant, in her first exception complains that, since 1852, very little has been paid to her, and this seems fully confirmed by the trustee’s informal statement. In the defendant’s fifth exception, it is urged that the jewelry purchased from Hayden, the piano from Siegling, &c., were not necessaries. As is suggested by the special referee, this objection is rather ungracious, as neither the piano nor the jewelry are articles consumable in the use, and there has been no proposal to return them. But the decree of the Appeal Court declares the plaintiffs entitled to recover “ for such articles as were necessary and proper for the defendant, in the condition in society which she occupied.” The defendant had probably been accustomed to these advantages under her father’s roof. Her estate warranted the continuance of them, and the Court is not disposed to scrutinize very minutely into the degree of necessity which existed, on ■the part of the defendant, for the solace of music, or the indulgence of a gold watch.

The demands of Charles H. Duryee, require a more particular notice. In addition to the note presented by him, he has filed a supplemental bill, in the nature of a bill of dis*389covery. The answer of "the defendant is conclusive, and the supplemental bill must stand dismissed. But on 28th October, 1852, the defendant borrowed from Lieut. Duryee, at Thomasville, in Georgia, two hundred and thirty-six dollars, for which she gave him her note, and on 25th August, 1853, he sent her two hundred dollars by mail, which she received. The defendant’s answer admits the receipt of about four hundred dollars from this plaintiff, but adds, “that it had been, and still is, her impression (though she will not undertake to speak with absolute certainty,) that she repaid him all that she ever borrowed from him.” Of course this amounts to no proof of the discharge. ' But the exception submits that there was no proof of the necessity of the loan of money at that time.

It is true that money can, in this sense, be regarded as necessary only when the purposes to which it is applied, or to be applied, are necessary purposes. The evidence upon this point is defective; but it may have arisen from misapprehension, and may yet be supplied.

The sixth exception is overruled, except as to the claim of Charles H. Duryee, which is re-committed for further examination.

The plaintiffs except, because interest has not been allowed on their demands. They were declared entitled to the aid of this Court, so far as the articles supplied by them were necessary and proper for the defendant.. Their demands constituted an open account not bearing interest; and the note of the defendant, or her promise to pay interest, is, in itself, a nullity, as the act of a married woman. The plaintiffs’ exceptions are overruled.

The claim of Dr. Peake remains to be considered. The decree of Chancellor Wardlaw, of November last, authorized creditors to present and prove their demands before the Commissioner, on or before 1st May, 1857. The appeal from this decree was heard and disposed of at the sittings *390in May last. No notice was published for creditors; but a reference was held on 27th June, and the report of the special referee filed 6th July. In the meantime, Dr. Peake, had, on 1st July, sent the note of the defendant to the Commissioner, not having heard, as he affirms, of the reference of 27th June. The report of the special referee, notices the demand of Dr. Peake, but says that it was presented since the reference. The practice of the Court upon this subject is stated by the Court of Appeals, in *ex parte, The United*States, *in re Shu-brieic’s Creditors*vs. *Shubrick's*Executors, 1 McC. Oh. 406. Although the time for proving claims has elapsed, the Court will let in creditors at any time while the fund is in Court on payment of any costs incident to the delay.

It is ordered and decreed that the report of the special referee stand confirmed, except as modified by this decree. It is further ordered and decreed that the special referee take further testimony, and report upon the claim of Charles H. Duryee, as hereinbefore directed, with liberty to report any special matter; that he also examine and report upon the claim of W. *B. Peake;-*that he report fully upon the accounts of the trustee as heretofore directed, by the decree of November, 1856 ; and that the parties have leave, in the meantime, to submit any provisional order for the appropriation of the fund in Court, as also, the balance admitted to be in the hands of the trustee.

The defendant, Christina *W.*Eaust, appealed and now moved this Court to reverse or modify the decree, on the grounds:

1. Because the Court, by its decretal order of 1851, having directed the trustee to pay to Mrs. Eaust the income of her estate for her support and maintenance, and there being no proof that the said allowance was insufficient for the purpose —the decree of the Chancellor, in allowing claims to a large *391amount over and above the said income, and to be paid out of the corpus of the estate, is erroneous, and ought to be reversed or modified.

2. Because the decree is silent as to the matter of costs, when some direction ought to have been given as to the division thereof — several of the claims sued on, or presented, having been disallowed.

The plaintiffs also appealed and moved this Court to mod- ’ ify the decree on the grounds:

1. Because the claims of the creditors, arising in the lifetime of Dr. Bratton, should have been allowed, as recommended by the report.

2. Because the claim of Charles H. Duryee, should have been ordered to be paid.

3. Because interest should have been allowed on the demands which are liquidated.

Gregg, *McAliley,*for defendant.

Boylston, for plaintiffs.

*Per Ouriam.*

This Court perceives no error in the decree; and it is ordered that the same be affirmed and the appeal ■dismissed.

JOHNSTON, Dunkin, Daeg-an and Wardlaw, CC., concurring.

*Appeal dismissed.*