Hirschman v. Brashears

CHIEF JUSTICE COFER delivered the opinion op the court. The intention of the devisor that the land should not be made subject to the husband’s debts is very clear from the will, and this intention would be disregarded if a judgment ■enforcing the appellant’s mortgage was rendered. [259] In our opinion, the will creates in Mrs. Brashears a separate estate; and although she and her husband may have :had power to sell it, or her interest in it, they could not -mortgage it to secure his debt. The statute provides that the separate estate of a married woman may be sold and ■ conveyed by her and her husband, and trustee, if there be ■one, but that no such sale shall be made when forbidden by -the deed or will under which it is held, “but her interest in -the proceeds shall be the same as it was in the estate; ” thus .showing, that in giving power to sell, it was not the purpose •of the Legislature to include in it the power to mortgage -for the husband’s debts, which would defeat the right of the -wife to a separate estate in the proceeds. Judgment affirmed.