Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1896-01-17
SELL THE PROPERTY.
Separate Estate Of Z aarfied Woman
Liable for Her Debts.
sns SUR OF MAS. HAxALL.

Appeals Yesterday-The soapine
Case Judgment Amrmcd-Other In
tercsting Opinions Rendered.
The Supreme Court OF Appeals yester-
day decided the case OF Price, &c. by
: &C.. against the Planters National Bank
VI Richmond. which came up from the
chancery Court Of Richmond. This de-
clslon was OF extraordinary Importance
IN that the court for the FIRST time placed
an Interpretation upon the woman's sep
arate estate law In this state. This SUIT
was one against the estate Of Mrs. Mary
Triplett Haxa, wife OF Captain Phihp
Haxall. who died IN 1890. leaving her
property TO her husband for his life. ana
after his death to her two nieces. she
left little or no personally. IL consist
ing OF some household furniture and
effects. and one hundred shares OF stock
OF the Old Dominion Iron and Nail
Works When Mrs. Haxsli died she left
debts amounting 10 Nsf770, which she
tNWtIuy lnitBufu HoBct anu fCb WI
Franklin street should cover. according
20 the testimony OF Colonel 10 Lane
Stern, who had been called i'm twice TO
prepare a second will for Mrs. Haxail
Just prior to her death. but who was un-
able 10 prepare the document because OF
Mrs HaAalls condition. or the. debts left
by Mrs. Haxall was one OF 5000 due the
Planters National Bank. and the Chan
Gerry Court OF the city held that the law
bearing upon woman's separate estate
was OF no effect. and that all the pro-
perry left by Mrs. Haxall was liable for
these debts.
OPINION OF THE COURT
The opinion of Judge Rely, OF the
Court OF Appeals, is a most exhaustive
and comprehensive document-afiirming
Judge Lambs decree OF February T. 1855.
Judge Rely's opinion substantially says:
The liability OF the equitable separate
estate of a married woman after her
death for her general engagements is
the important question that confronts
us In this case Is 1t liable al all; and II
30. in what manner and TO what extent?
This precise question has not heretofore
been directly presented by this court for
DECISION. The solution depends upon and
fbdst be governed by the nature of the
separate estate, and the extent OF the
power of the married woman over it.
Whatever may have been the adjudica-
lions and judicial expressions of the
courts OF England and Of this State in
the past, il is now settled. both here
and there. that where property Is settled
10 the separate use OF the married wo-
man. and the power is given to her ex-
press.y. or implicitly, to deal with it. she
has the other power incident to pro-
perty in general-namely, the power Of
creating debts to be paid out OF IL; and
a court of equity will give effect to them,
not as personal liabilities, but by laying
hold of a separate property and subject
Ing IL 10 the payment OF the debts con-
tracted by her with reference 10 her Sc
parate property. and upon the faith and
credit OF II. A number OF authorities are
given 10 sustain this position.
"Where the instrument creating the Sc
parate estate prescribes one mode OF
alienation by the wife, the prescribing OF
that mode Is not TO be construed as an
intention to exclude alienation by her IN
any other manner unless an intention 10
do so can clearly be gathered from the
face of the instrument. When the sepa-
rate estate Is created, it Is, nevertheless,
competent for the settler 10 Indicate
what shall be the extent of her control
over H. He may, contrary to the course
OF common fdNt liibtrt itoAARfRf N'N'tN'
absolute or qualified. on her power Of
alienation, and his intention 10 restrain
may be either expressed or implied, Out
I'm either case IL must be clear
"And in the enforcement Of the general
eneagements Of a married woman, hav-
ing an equitable estate, when 1t IL once
established that the contract which IL IS
sought 10 enforce is hers. II is presumed
as a matter of law that she intended 10
ifahl Stgch gepaTdte estate
as she owned. free from restraint at the
time of entering into the agreement I'M
less the contrary intention Is expressed
in the contract: and court or equity
will so subject il. or 40 much OF II as may
then be owned by her. Several authorities
are here referred to-
THE SEPARATE ESTATE.
Dealing with the question OF what the
eeparate estate may consist. the opinion
goes OF to say: when equity first ere
0ted the separate estate the main pur-
BOSE was, no doubt. TO intercept the ma
terial rights of the husband but IL II
ever restricted the separate estate TO such
Of the property OF the married woman as
her husband would have been entitled
10 her by virtue OF his marital rights at
common law. such rule had long since
been departed from. The equitable estate
may, therefore. consist of any property
or any interest therein. 1t Is what the
settler intended II 10 be. according az the
Intention may be ascertained by the true
construction OF the instrument by when
che trust for separate use is created, and
Is not arbitrarily limited to the interest
or property covered by the marital
rights of the husband at common law"
This brings the case to the main ques-
ton as to what extent and in what man.
ner a court of equity will enforce the
general engagements Of married woman
against her equitable separate estate. 1t
has been repeatedly held by this court
that unless the power OF alienation by
married woman be restrained by the IN
etrument creating the estate. all the per-
sonalty, and the rents and profits of all
the realty, settled 10 her separate use
may be subjected 10 their payment. As
to this there has never been any difficult
~. but the controversy has been as to
the right TO subject the corpus Of the
real estate by a sale thereof|
DEEPLY IMBEDDED IN OUR LAW.
In this connection Judge Rely quotes
deliberately from the celebrated opinion
Of Judge Burks IN the case Of Frank
Il Adler vs.. Lilienfeld and others. and
then says: II have quoted thus fully be-
cause II WAS concurred in By all the
members of the court. and lays down
with great accuracy and cleainess the
rule as to the liability OF the equitable
separate estate according 10 the long
course OF decisions in this State, except
that. 80 far as 1 am aware. It Is the only
case in which IL Is stated that i'm no case
should the real estate or any part there
OF, be sold 10 satisfy the debt of the
wife, unless such debt be one secured by
SPECIFIC lien on such estate. Nevertheless.