The comet. [volume] (Jackson, Miss.) 1877-1882, 1880-03-27

separate estate Of .femeS cogef, held undel
settlements or other instruments. ON the
other hand 1t is contonded that the estate
devised by the willis legal estate, and the
wife's'powers over it, In the absence of any
specified grant of larger powers In the will
must be regulated by the statutes alone
that the doctrine of courts of equity In
relation to the separate property of married
women is applicable alone to equitable
estates.
Shelton Il Shelton for plaintiff In error.
Frank Johnston for defendants in error.
GEORGE @. j.,
Held
/. IL has heretofore been settled In this
State, that the statutes on the subject OF
the property of married women do not fix
and regulate the powers of .fenles coceH as
| IN e0uituble separate estates held by them.
We think il equally clear that the same
rule should apply when the Instrument
creating the separate estate fails to appoint
A trustee for the wife, whereby her estate
is legal and not equitable.
9. Prior to the enactment OF the statutes
protecting married women in their proper
| ty. the will would have vested In Mrs.
Williams a separate estate to her sole use
and free from the control of her husband.
And under the rules of the Chancery Court
in England, recognized by the latest cases
in This State, the wife would have had the
mower of charging her estate as If she mad
been Il feme sole.
3. The statute was not designed TO re-
strict but to enlarge the rights ana powers
of married women as to property owned
by them at the time of their marriage, or
subsequently acquired.
The will of Mrs. Mcclure secures to Mrs.
williams q separate estate which q court
of equity would recognize and protect, II
our statutes on the subject had never been
passed. In that case she would have had
The power to charge the estate by her con-
tracts, according to the rules which courts
of equity had recognized and established
in relation to such estates. The fact that
there is no trustee appointed to hold the
legal title would have made no difference.
(. There is nothing in the statute pro-
libiting these settlements to the separate
use of the wife, on the contrary, the plain
intent of the statute is to secure her a
separate estate where the instrument under
which she derives title would not without
its aid produce that effect.
6, When married woman has owner
ship. then as an incident to it, she has the
ms disDOneRdi. She is never obliged to
look to the statute for her power of control
and charging her estate except when she
must look to it for her title. Here the
wife need not refer to the statute for her
title, The devise is to her sole and sep
arate use in which her husband shall have
no right OF interest.
I. It is insisted that by the law of LOUISE
ana the promissOry note of the wife made
as surety for her husband is void for want
of the capacity of the wife to enter into
such a contract, and being void by the lev
loci, and the law of the wite's domcil, 1t
must be void everywhere This position
is true, if the giving of the note has no
other effect than what it purports to have
on its face, viz; apersonal obligation OF
the wife. But tbs charged in the bill and
by the demurrer that at the time
this note was made in Louisiana the wife |
had separate estate in realty, situated in
this State, and that the wife contracted
with reference'tO this separate estate, and
to charge it by her promssory
note in question. Can this purpose with
reference to realty here be carried out not
the note is void by the law of
Louisiana? is the question presented Tor
our consideration. The note, if made
here, would be equally void by our laws,
to bind the wife personally yet, notwith,,
Standing this, if made with the intent and
purpose alleged in the bill to be a valid
charge against her separate estate situated
here, Its generally true that the capac-
ty of Il married woman to make contract
will be determined by the law of her
lomicil, but this is not the rule when her
contracts relate to her estate i'll realty sit
lated in another Jurisdiction.
The capacity of Mrs. Williams to take
his property, her rights and powers over
t, are derived from and regulated by the
aw of this State. Her power of DISPOSE
ion and dealing with il are by our laws
ON the property itself AS to
zone of these things has the law of Louisi-
ma the slightest influence.
8. The charging of her separate estate
or the payment of money does not pass
NV actual interest in the land, but it is the
irst and essential step for Judicial dispo-
ition of the estate to satisfy the charge and
he exercise of power of administration
nd control over it which, as we have seen,
S governed solely by the ler rel s5tae.
TO- There is no real conflict between the
avs of Louisiana and of Mississippi, in
eference to the contract. BY the laws
# BOTH the note is void for what it pur-
'Orts to be on its face.-a personal obliga-
ion of the wife. Audit void for the same
eason III both, viz; the personal incapac-
ty of the wife. The difference between
he two laws is as to the effect on real
property ..of the wife in the respective
yhich, as we have above seen, the law of the
tate in which the realty is situated, is the
judge.
II. The principle of comfy does not re-
uire Estate to regard in any respect the
TVS of any other State, so far as they may
feet contracts in relation to real estate
tuated in the former State.
Decree reversed, demurrer overruled and
luse remanded, with leave to answer.