Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5. Page: 77
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AUSTIN, 1849. 153-154
Cartwrigllt v. Hollis.
estate, with the incidental power of control and disposal, recognized; but in relation to
the extent of her power, or rather the mode of its exercise, there has been considerable
diversity of opinion.
In England or New York it is held that she may sell, pledge, or incumber her separate estate,
when she shows an intention to dispose of it, in the same manner [153] as if she were a
fene sole. unless specially restrained by the instrument under which she acquires it.
In South Carolina it is held that she cannot dispose of her separate estate in any other mode
than the one prescribed; and that she cannot, by her own act merely, charge her separate
estate without an examination by the court into the necessity and propriety of the
charge.
It was the obvious purpose of the act of 1840, which introduced the common law, to preserve
from the wreck of the Spanish system of jurisprudence those rules, with some modifications,
which regarded the matrimonial union, so fir as property was concerned, as a
species of property, in which each partner might have separate estates or property, as well
as a common stock of acquisitions and gains.
The act of 184(, on the subject of marital rights, did not prescribe any mode by which the
wife should dispose of ier separate property. Her power of disposition was therefore, according
to the authorities, uncontrolled, except, perhaps, so far as a court of equity might
refuse or enforce her contracts.
-The act which prescribes the mode in which the wife may voluntarily alienate her separate
estate does not deprive her of the power of contracting in the ordinary mode for supplies
necessary for the protection of her property, &c.
The distinction between the separate property of the wife and property limited to her sole and
separate use is not recognized by our laws. The property denominated separate is regarded
as limited to her sole and separate use, and necessarily excludes the common-law
rights of the husband in such property by virtue of the coverture.
Quere as to the construction of the words "other effects" in the act which provides a mode
in which married women may dispose of their separate estates.
Quere as to the proprietary interest in the proceeds of the wife's separate property. But
however that tnay be, they can undoubtedly te subjected to the payment of necessary
and reasonable cllarges against the estate, either for its preservation, management, and
improvement, or for the support of the wife and her family where the husband is unable
to support them as the fortune of the wife would justify, and it makes no difference
whether the charges be incurred by the wife directly or by the husband. (Note 25.)
The distinction in some of the cases exempting the separate estate of the wife from liability
because credit is given to the husband and not to tlie wife is frivolous.
The doctrines on the subject of the disabilities of t married woman at common law, and her
powers in equity to charge her separate estate, and what will be sufficient evidence of
her intention to render it liable, discussed at length in connection with our statutes
concerning marital rights and the alienation of their separate estates by married women,
and the conclusion drawn that slie cannot, by her own act merely, ch:age her separate
estate in any other mode than that pointed out by the statute without an examination by
the court into the necessity and propriety of the charge. (Note 26.)
In some of the cases the question whether the capital or rents and profits only of the estate
are liable to the charges has been much discussed. Where the wite has the entire interest
in the estate, the corpus as well as the issues would no doubt be liable. If the
latter be sufficient, they should be first subjected.
[154] Appeal from San Augustine. The petition represents that William
and Elizabeth L. Hollis, lhis wife, are indebted to the petitioner in the stnm of
one Ilhndred and eilghty-folur dollars and fifty cents, with interest at t le rate
of tell per cetlt, per ailnmlli from thle 13th of March, 1847; that the said William,
having occasion to pllrclhase goods, wares, and merchandise for tlle use of
Ihis family tand plalltation in 1846, applied to the petitioner to make tile said
puchllases, and propose(l that his wife, the said Elizabeth, who hla(l a large
amouitt of separate property, should become his security for the payment
of the same ; that tile petitioner then sold to the said William goods, &c.,
to tile amount or one hundred anll eighfty-four dollars and fifty celits; and in
consideration thereof the defendants executed and delivered to him their joint
and several promissory notes for that amount, with the interest thereon as
above stated. The petition further states that William Hollis has no separate
property of Ilis own, nor is there any community property liable for the paylment
of his debts; but that hlis wife, thle said Elizabeth, is seized in her own
right, and to her separate use, of a considerable amount of property. consisting
of negroes, lalds, horses, andl cattle. whicll she refuiu-s to dispose of for the paymeiit
of the said debt, antld denies that the same is liable therefor. The petition
prays for discoveryy, an(l that an account be taken of tile separate property of
the wife, alld a suifficielt amount thereof be decreed to be sold for the payment
of the said debt, or that tlhe relts and profits thereof be appropriated for that
purpose. The defellnants denltirred to tile petition on tile ground that the
plaintiff hadl not made out such a case as entitled him to any discovery or re77
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5., book, 1883; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28569/m1/85/: accessed May 7, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .