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: 81
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AUSTIN, 1849. 161-162
Cartwright v. Hollis.
directly charging the estate, no doubt could exist; andL [tal] if by any refer-,
ence to the estate it could be gathered that slcli was her intent, the same conclusion
followed. Thus, if she executed a )bond or liote or accepted a bill, as
these acts woull be nugatory unless done With reference to her separate estate,
she must be regarlded as havin intended to charge le r separate estate; since
in no other way cold the instruments have any validity or operatio)l, in tle
same manner as an instrument wliich can mean nothing, if it means not to
execute a power, has been held to be made in execution of that power, though
no direct reference is made to the power.
The Lord Chancellor then ridicules tile distinction that the feme covert can
be made liable as to her separate estate on written instruments absolutely void
at law, and yet not be affected by her verbal engagemellts or agreements,
though the latter may be for supplies necessary to her maintenance, while tile
former may be given for money furnished to squan(ler at play; and it was
held that her separate estate was liable to her solicitor's bill for costs.
It must be confessed that the distinction between the particular engagements
of a femne covert chargeable upon her separate estate a:d her general personal
engagements is not satisfactory. Trle reasonable presumnptioi is that when a
lmarriedl woman contracts a debt she means to pay it; and it is difficult to
lraw any satisfactory distinction between stuel debts as are chargeable upon
her separate estate, when no intention is expressed to tliat effect, and sllcll
debts as are not chargeable, on the ground of their being mere general engageimeits.Without dwelling upon the difficulty aitd subtlety of the distilnctiono, it will
be sufficient to say tilat upon the English authorities it is well established that
if a fene covert give a promissory note or ale acceptance or a bond, or joins il
a bond with her husband to pay his debts, these shall constitute ]l)rna feacie
evidence to charge her separate estate, without any distinct circumistanice or
expression or positive agreement [162] to indicate her intention. (2 Atk. R.,
68; 2 Story Eq., sees. 1400, 1401; 9 Cond. Eng. Ch. R., S.)
Had the property in this case been settled to the sole and separate luse of the
wife by deed, the note ill question would have constituted, according, ' to tlhe
authorities cited, prima facie, a charge on her separate estate; and thi.s action
to subject the property, the corpus, or the profits of tlhe estate, as tlhe case iight
require, could, under these authorities, well be sustainedl. The question tilen
arises whether such action will lie, oil tile facts stated, to render liable tlhe
property lield by operation of law by the wife ill her separate right. Thlie petitioi
does iot show whell the Imarriage was celebrated, or whetherI tie wife's
right to separate property vested in her by law or by marriage contract; andlll
if tl:at be the case, whether it was an ante or post nuptial agreement. a0: t!he
supposition that the marital rights of the parties were fixed by tle provisions
of the act of 1840, it would, perhaps, aid tlme inquiry, or at least renderlc it more
intelligible, by stating the substance of the statutory regulations on the silhjectmatter.
The tlird section declares that neither tIle lands nor slavNes which tlle
wife nay own at the time of the marriage, nor the lands nor slaves to which
she may acquire during coverture anly rigt, title, or claim by gift, devise, or
descent, nor tile increase of such slaves in each case, nor tlle paraphc'rnalia,
&c., shall, by virtue of tile marriage, become the property of the husband, but
shall remain the separate property of the wife; provided, however, that (llring
the continuance of the iwmarriaoge the husband shall have the sole mnagllXement
of such lands and slaves. By the fourth section it was decllaredl that all
the property which the husband or wife may bring into the marrli:ge. except
land and slaves andl the wife's paraphernalia, and all the property acquired
during the marriage, except such land or slaves or their increase as may be
acquired by either party by gift, devise, or descent, and except also the wife's
paraphernalia, &c., slhall be the common property of the husband and wife.
It shall first beliable for all [163] the debts contractedl by the husband darling
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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/m1/89/: accessed May 7, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .