Koontz v. Nabb

Goldsbobough, J., delivered the opinion of this court: We are satisfied, from an examination of this case, that the decree appealed from is sustained by the reasons assigned in the opinion of the judge of the Circuit court, and therefore the decree ought to be affirmed. In addition, however, to the reasons assigned by the learned judge below, we would state that we have carefully examined the decisions in England and in this country, and have reached the conclusion that a married woman having a separate estate, cannot affect that separate estate, unless the obligation sought to be enforced presents upon its face some evidence of the intent to charge the estate, or there be evidence aliunde tending to prove such intent. This question was, on many occasions, brought to the consideration of the Chancery court in England, from an early period, in its equity jurisprudence, and numerous decisions were made in conformity with our view of the law. Nor was that view disturbed in England, until the case of Hulme vs. Tenants. 1 Brown's Ch. Cases, 16, which occurred in 1778, followed by the cases of Whistler vs. Newman, 4 Vesey, Jr., 130, and Mores vs. Huish, 5 Vesey, Jr., 692, decided by Lord Loughborough. These cases are succeeded by many others, after Lord Elden became Chancellor, in which he restored the law to its first and ancient principle. In the case of Parkes vs. White, 11 Vesey, Jr., 209, he reviewed all the cases, and strongly intimated that the decision in Whistler vs. Newman was in opposition to all the authorities for a'century. It is true that this [555] doctrine has undergone much change by the decisions recently shade by Lord Brougham and Lord Cottenham; (see Lewin on Trusts and Trustees, page 516,) yet we are justified in disregarding these decisions, by resorting to the rule laid down in the case of The Mayor and City Council of Baltimore vs. Williams, 6 Md. Rep., 264, in which this court said, (referring to the construction of the Statute of Elizabeth, Ch. 4,) the position of the counsel is correct, if, by the English doctrine, which is to prevail here, is meant such as was settled by judicial decisions previous to our separation from the British Empire; that subsequent decisions, although entitled to great respect, are not to be received as absolute authority. This last position was taken by Chief Justice Marshall, in Cathcart vs. Robinson, 5 Peters’ Reports, 280, in which he concedes, “that the received construction of the English Statutes, at the time of the Revolution, may very properly be considered as accompanying the Statutes themselves, and forming an integral part of them.” This question of a fem,e covert’s jus disponendi of her estate, has been, upon several occasions, considered by this court, and in the case of Cooke vs. Husbands, et al., 11 Md. Rep., 503, the court say: “We may consider it unsettled as late as 1849.” And though the court, in that case, use the following strong language: “Therefore, following the decisions, which, under our institutions, it is the duty of this court to respect as authority, we are of opinion, that a feme covert may act in reference to her separate estate as a feme sole, when the settlement contains no limitations on the subject, on the principle that the jus disponendi accompanies the property, unless restrained in terms, or by the manifest intention of the instrument;” yet the facts in that case did not justify the court in extending their decision so as to embrace the question now under consideration. Reverting to the conclusion we have arrived at, that a married woman having a separate estate, cannot affect that separate estate, unless the obligation sought to be enforced presents upon its face some evidence of the intent to charge the estate, or there be evidence aliunde tending to prove such intent, we find [556] no such intent upon the promissory note in this case, nor are there any facts, in the evidence, from which such an intent may be inferred. (Decided February 5th, 1861.) Decree affirmed.