Weir v. Groat

Boardman, J. The case of Baken v. Harder, ante, p. 440, decided at this term, presents the same .legal question upon the same state of facts, and is decisive. It cannot be claimed that this debt benefited her estate, and thereby became a charge. It was the husband’s duty to support the family, and he was the person benefited by the property bought. In order to charge her estate therefor, she must express such intention in her contract. This she has not done. The respondent labors under the false idea that such intention may be inferred from her simple promise to pay.' That would destroy the only distinction now remaining between the contracts of a married and unmarried female. Yo case goes to that extent. In Maxon v. Scott, 55 N. Y. 251, the court says : “ The charge may be made by an oral contract, made upon a good consideration, expressing such an intention equally as though the contract was reduced to writing.” It must be expressed. In Kelty v. Long, 4 N. Y. Sup. 163, and Owen v. Cawley, 42 Barb. 105, the property was bought for the benefit of the separate estate, and for that reason the wife was held liable. The wife may, if she pleases, charge her property with any debt, but it is only when it benefits her estate that the intent to charge it thereon becomes unnecessary. In all other cases such intent to charge must be a part of the cqntract. The authorities to sustain these principles are too familiar to need citation. The referee, therefore, erred in finding, from the evidence in the case, an agreement to bind and charge her separate estate made by the defendant in connection with this debt. For this reason the judgment should be reversed and a new trial granted, costs to abide the event. Judgment reversed and new trial granted.