#### James E. Robinson and Martha Motte Robinson, his Wife, v. Executors of Elizabeth Martin Dart, deceased.

The wife has no right to charge or dispose of her separate estate, even with the consent of her husband and trustee,'unless it is otherwise provided by the terms of the settlement.

Nor will the Court on the joint application of husband and wife, direct her trustee to place her separate property in the hands of the husband.

Where the bequest to the wife was part of the residue of the testatrix’s estate “consisting of furniture in her room, wearing apparel, stock, monies, or dioses in action, to her sole and separate use, and not subject to the debts, contracts or control of her present, or any future husband,” and that the wife’s receipt alone should be considered as a sufficient discharge to the executors for the same, — the Court refused to order the stock or monies to be paid to her husband, on the application of husband and wife, though he offered to give adequate security for the forthcoming of the capital, at such period, and on such conditions as might be considered most in accordance with the will of the testatrix.

*'Before his Honor Chancellor HABBUOt, at*Charleston, 1837.

The bill stated that Elizabeth Martin Dart, the aunt of complainant, Martha Motte Robinson, being possessed of a considera*129ble personal estate, consisting chiefly in money, bank stock and other securities, died in January 1837. By her will, dated 18th August, 1835, the testatrix bequeathed as follows: “All the rest and residue of my estate, consisting of my furniture in my room, (not heretofore given away,) my wearing apparel, stock, monies or c'hoses in action, I give to my nieces, Martha Motte Robinson and Susan Mary Vance: my said niece, Martha Motte Robinson, to take one thousand dollars more than my niece, Susan Mary Vance, because of an advancement made to the latter by her father, the late Thomas L. Dart, to their sole and separate use, and not subject to the debts, contracts or control of their present or any future husband; and I desire that their separate receipts alone shall be considered as sufficient discharge to my executors for the same.” General James Hamilton and Dr. Edward W. North were appointed executors of said will, and qualified thereon.

Complainants have applied to the said executors for the portion of the estate to which complainant, Martha Motte Robinson, was entitled under the clause above recited. The defendants did not object, so far as the same could be done consistently with the trusts they had assumed, but alleged that only the interest or dividends could be paid to said Martha Motte Robinson, and the capital must be held by the said executors as trustees.

The bill submitted that the complainants were entitled to the possession of the fund, which was necessary in order to its proper use and enjoyment; and that the separate receipt of complainant, which she was ready to execute, would be a sufficient discharge to the executors.

The bill further stated that complainants in any event, desired that the character of the investment should be changed and converted into property of more advantage to them. That complainant, James E. Robinson, was prepared to give adequate security for the forthcoming of the original capital to be by him received, at such period and on such conditions, as might be considered most in accordance with the spirit of the testratrix’s will.

An account was prayed, and that the amount to which Martha Motte Robinson was entitled under th6 residuary clause of her *130aunt’s wil], might be paid over, or that the property might be changed as aforesaid.

The answer of the defendants admitted the facts stated in the bill, and that they had declined to comply with the complainants’ request, on the ground, that a payment to the complainants, or either of them, would be, in fact, a payment to the complainant, James E. Robinson, and inconsistent with their duty as trustees; but that they were willing to execute the trust as the Court might direct. The Chancellor dismissed the bill.

An appeal was made on the following grounds, viz:

1st. Because it is respectfully submitted that his Honor erred in deciding, that Mrs. Robinson was not entitled to the possession of the residue bequeathed to her, “consisting of furniture, wearing apparel, monies, stock and choses in action.”

2nd. Because, if the opinion of his Honor was correct in deciding that the property bequeathed should remain in the possession of the executors, a reference should have been oi-dered to enquire into the propriety of changing the character of the property as sought by the bill.

3d. Because it is respectfully submitted that his Honor erred in dismissing the bill.

*'Bailey, Dawson, Brewster,*solicitors.

*Betigru,*contra.

Harper, Ch.

No reasons for the decision in this case were given in the hearing below. No question was made with *respect*to the propriety of directing the executors (supposing them to be trustees,) to permit the complainants to have the possession of the articles of which it is supposed that the use can only be enjoyed by having the possession — such as wearing apparel and furniture. Nor is it apprehended that any difficulty will arise on the part of the executors. The bill is to have the stock or money paid over to the husband, either in his own right or as trustee for his wife.

With respect to the payment to the husband, in his own right, the English doctrine is relied on, as laid down in Hume v. Tenant, *131(1 Br. Ch. 15,) and Fetteplace v. Gorges, (3 Br. Ch. 8,) that a married woman is considered as a *feme sole,*with respect to the disposal of her separate property; and as she may charge or dispose of it to any one else, it is supposed she may do so to her husband. But in this respect the English decisions seem to make an exception to the general doctrine. The case of Griffith v. Hood, (2 Ves. 452,) seems very much in point to the present. There a bill was brought by husband and wife for property given to the separate use of the wife. It was said that the husband and wife’s being joined, made it the husband’s bill, and that the wife should have sued by *prochein amy,*but the Court would secure the property to the separate use of the wife. It is plain that if the claim were by the wife, to have the property secured to her separate use, her claim is adversary to that of her husband, who ought to be made a defendant. In Richards v. Chambers, (10 Ves. 580,) the property was settled to the separate use of the wife, with power of appointment by deed or will; she executed an appointment in favor of her husband: husband and wife joined in a petition that the property might be paid over to him, and upon an examination *de lene esse*the wife expressed her willingness that it should be done. The subject was fully considered by the master of the rolls, and the petition dismissed. He observes that it is not like the case in which a husband has a right to the trust property of his wife, subject only to the obligation to make some provision for her before he reduces it into possession. The settlement in that case was made by the wife herself, before marriage; but it is observed “that the interests are of such a nature, that if created by a third person, he could have no power over them.” But certainly there can be no doubt, in this State, since the decision in Ewing v. Smith, (3 Eq. Rep. 417,) which has been followed ever since— that the wife has no power to charge or dispose of her separate property, even with the consent of her husband aad trustee. The doctrine was recognized in Patterson v. Magwood, (1 Hill’s Ch. Rep. 230;) and it is equally improper that the fund should be paid over to the husband as trustee. In general, the appointment of a trustee is for the protection of the rights of the married woman against the husband. By constituting him a trustee, he is invested *132with the legal title, and might convey any property to a purchaser without notice; over money, his control would be absolute, even if he'Should give the most satisfactory security to answer for the capital. We are to recollect that the object of the donor was, that the wife should receive the issues and profits into her own hand, and enjoy and dispose of them for her own livelihood, or otherwise, as she might think proper. This object will almost certainly be defeated by constituting the husband trustee. He will be constantly tempted to use the authority and influence of a husband, to assume the disposal of the income and induce his wife to acquiesce. If he should fail to pay over, is it likely that the wife would come into this Court to call him to account; or ought the Court to place her in such a situation in which circumstances may require her to do so? Where the husband obtains possession of property given to the separate use of his wife, this Court makes him a trustee for the benefit of his wife; but he has never been constituted trustee for the purpose of enabling him to receive the property. In Bennet v. Davis, (2 Pr. Wms. *316,)*where land was given to the separate use *of the wife,*it was argued by the reporter that it differed from the case of a legacy. There the legal title was in the executors, who would not be compelled to assent. In Rich v. Cockell, (9 Ves. 369,) where an administrator paid over to the husband property given to the separate use of the wife, it was said by the Chancellor to be *improvidently*done. In this case the executors are certainly at present trustees for the complainant, Mrs. Robinson, and they may have a title to be relieved from the trust by the appointment of another trustee, or upon a proper case made, the complainants may have another trustee appointed. But it will be time enough to consider of such an application when it is made; no application was made at the hearing for any inquiry as to the changing the mode of investment.

The decree is therefore affirmed.