Williams v. Urmston.

exists, and consequently, that the court in Levi v. Earl, fell into an error in supposing that the reasoning in the former case lends any support to the judgment rendered in the latter. The doctrine, however, laid down by Lord Justice TURNER has been distinctly approved in Picard v. Iline, L. R., 5 Ch. App. 274, and in London Chartered Bank of Australia v. Lempriere, L. R., 4 P. C. 572. In the former case, Lord Chancellor HATHERLEY said it was very desirable that the position of a married woman, who contracts as if she were feme sole, should be placed on a well understood basis, and that that had been done by Lord Justice TURNER in his judgment in Johnson v. Gallager.

Mr. Pollock, in his late work on the Principles of Contract, 68, in classifying the cases or instances in which, by the law of England, the intention of a married woman to charge her separate estate will be implied, says that such intention is presumed in the case of debts contracted by a married woman living apart from her husband, and adds, that "the like intention is inferred where the transaction would be otherwise unmeaning, as where a married woman gives a guaranty for her husband's debt, or joins him in making a promissory note." This was the principle upon which the case of Davies v. Jenkins, L. R., 6 Ch. D. 728, decided in 1877, was determined.

In this country the authorities on the subject of the power of a married woman to create a charge against her separate estate as surety, seem to be divided into four classes. 1st. Those that deny the power out and out. 2d. Those that admit the power, but require the instrument creating the debt to disclose the intent, to charge in express terms. 3d. Those that hold the intent to bind the estate, or to pay the debt out of it, will be presumed from the mere execution of a promissory note. And 4th. Those that deny that such presumption or inference arises unaided by extrinsic proof. The first of these classes has no bearing on the point under discussion, and the rule adopted in the second has never been recognized as the law of this State. The question as between the other two resolves itself into this:

What inference is to be drawn from the act of a married woman having an estate to her sole and separate use, in signing the promissory note of another, as surety, as respects her intention or purpose in so doing. In view of the fact that in the act of signing she incurs no legal liability, the question admits of but one rationai an

Williams v. Urmston.

swer, and that is, in the absence of proof showing fraud or imposition, that she intended thereby to make the debt a charge upon her separate estate. Unless this inference is drawn, her act becomes wholly vain and frivolous, and entirely destitute of a purpose or a meaning.

That such is the natural implication from the act of signing has been distinctly affirmed in numerous cases.

In Bell v. Kellar, 13 B. Monr. 381, the rule was stated as follows: "If a feme covert, having a separate estate, make or indorse a note, the presumption is that it was the intention, and the effect is, to charge her separate estate."

In Cowles v. Morgan, 34 Ala. 535, it was held that, "a promissory note executed by the wife during coverture, jointly with her husband, is a charge upon her separate estate created by contract."

So, in Burnett v. Hawpe's Ex'r, 25 Gratt. 481, it was held, that "if a wife contracts a debt for herself, or for her husband, or jointly with him, the instrument executed by her is sufficient to charge her separate estate, without any proof of a positive intention to do so, or even a reference to such estate contained in the writing."

In Metropolitan Bank v. Taylor, 62 Mo. 338, it was held that, "in reference to her separate estate, a married woman is to be treated as a feme sole, and the giving of a note, or making of a written contract by her, raises the presumption that she intends to bind her estate." This case was on a note executed by the wife as surety for her husband.

The same rule prevails in Kansas. Deering v. Boyle, 8 Kans. 523; s. c., 12 Am. Rep. 480; Wicks v. Mitchell, 9 Kans. 80.

Judge STORY, in commenting on the subject, says: "Indeed, it does seem difficult to make any sound or satisfactory distinction on the subject as to any particular class of debts, since the natural implication is, that if a married woman contracts a debt she means to pay it, and if she means to pay it, and she has a separate estate, that seems to be the natural fund which both parties contemplated as furnishing the means of payment." 2 Story's Eq. Jur., § 1400. See also, to the same effect, 1 Bish. on Mar. Women, § 873.

In Avery v. Van Sickle, 35 Ohio St. 270, we held, that where a married woman executed a promissory note for property acquired by her, an implication arises, in the absence of proof showing a different understanding, that she thereby intended to charge her separate estate with its payment. If she executed the note upon

Pratt v. State.

the understanding that her separate estate was not to be bound for its payment, its enforcement against her would operate a fraud upon her. No one will pretend that this could be done. But when she executes a note, either as principal maker or surety, and has not been deceived in so doing, nor subjected to any undue influence, we think a just inference arises that she thereby intended to deal on account of her estate, and to bind the same in equity for the payment of the note; and that as a necessary result a court of equity will give effect to such intention by subjecting the estate to the payment of the note in the mode prescribed by the statute for enforcing claims against the separate estate of a married woman. Her liability, or rather that of her estate, does not depend on whether or not the debt incurred on its account is beneficial to her or otherwise. If made, and no fraud or imposition is shown, the court cannot refuse relief from the mere fact that the engagement entered into proves unprofitable or injurious. It follows from this result that Levi v. Earl, supra, and Rice v. Railroad, 32 Ohio St. 380; s. c. 30 Am. Rep. 610, in so far as they are in conflict with the principle on which the present case is determined, must be overruled.

Judgment affirmed.

NOTE BY THE REPORTER.-In Singer Mnfg. Co. v. Harned, Kentucky Court of Appeals, February, 1881, husband and wife gave their note for a sewing machine. They were housekeepers, the husband insolvent, and the wife had no property. Afterward she acquired property, and suit was brought to subject it to the payment of the note. Held, that the sewing-machine was under the facts a necessary, and that when a married woman signs a writing evidencing a debt for which she might bind her separate or general estate, the presumption is that the writing was intended to bind such estate; otherwise it is of no effect, as ordinarily she cannot contract, and it must be inferred that something was intended by entering into the agreement.

PRATT V. STATE.

(35 Ohio St 514.)

Marriage-paraphernalia - larceny of.

Necessary and suitable clothing furnished by a husband to his wife, or purchased by her with money or means given to her by her husband for that purpose, does not become her separate property within the meaning of the statute concerning the rights and liabilities of married women.

VOL. XXXV-78

Pratt v. State.

But such articles purchased by a wife with her separate money or means are made her separate property by that statute, and a conviction for the larceny of such goods under an indictment laying the property in the husband cannot be sustained, although the goods were stolen from the family residence.*

CON

(ONVICTION of grand larceny. The indictment charged the larceny of certain goods and chattels, the property of John F. Patton, to wit: Certain specified feminine wearing apparel. The testimony showed that it was partly bought with means furnished the wife by the husband, and partly with her own individual means. The opinion states the facts.

James A. Cook, for plaintiff in error.

George K. Nash, attorney-general, and T. L. Magruder, for State.

MCILVAINE, C. J. The jury found the value of the property stolen to be $35.00- the minimum sum constituting grand larceny; and it is quite evident, from the testimony, that this finding inIcluded the value of each article mentioned in the indictment. Hence the conviction was wrong, if any article named was improperly laid as the property of John F. Patton; or if the actual market value of the goods was the only criterion of their worth.

* * *

It is not disputed, that at common law, an indictment for the larceny of a wife's wearing apparel, laying the property in the husband, was good. It is contended, however, that under our statute the rule is different. The act of March 30, 1871 (68 Ohio L. 48), provides: "Any personal property, including rights in action, belonging to any woman at her marriage, or which may have come to her during coverture by gift, bequest, or inheritance, or by purchase with her separate money or means shall, together with all the income, increase and profits thereof, be and remain her separate property, and under her sole control, and shall not be liable to be taken by any process of law, for the debts of her husband. This act shall not affect the title of any husband to any personal property reduced to his possession with the express assent of his wife, provided that said personal property shall not be deemed to have been reduced to possession by the husband by his use, occupancy, care or protection thereof," etc.

* See State v. Pitts (12 S. C. 180), 32 Am. Rep. 508, and 'note, 510.

Pratt v. State.

Notwithstanding the very comprehensive terms of this statute, a majority of the court are of the opinion that they do not embrace. the wearing apparel of the wife, furnished by the husband, or purchased by her with money or means given to her by the husband for that purpose. As to such property, it was not intended by the statute to deprive the husband of all ownership and control, for surely, while the duty of the husband to furnish his wife with necessary and suitable clothing is continued, it was not intended to deprive him of the right to control and preserve it. Nor does it make any difference where a wife purchases her apparel with pin money given to her by her husband to be expended according to her will and pleasure. Of such property the possession of the wife is the possession of the husband.

It has been held, however, by the Supreme Court of Indiana that a statute similar to ours operates as to clothing of the wife acquired otherwise than from the husband, or through his means, so as to invest her with a separate estate therein. Stevens v. State, 44 Ind. 469. See, also, Davis v. State, 17 Ala. 415; Hawkins v. Prov. & Worcester R. Co., 119 Mass. 596; s. c., 20 Am. Rep. 353; Thomas v. Thomas, 51 Ill. 162; 1 Am. Law Reg. 434.

And we are inclined to think that there is good ground for the distinction. Where the wife's clothing is furnished by the husband, in discharge of his marital duty toward her, the statute does not divest him of the property contrary to his intentions; while on the other hand, where the property is otherwise acquired by the wife, the statute simply prevents a title vesting in him by virtue of his marital relation. Under the statute the "gift," which is declared to be the separate property of the wife, is a voluntary one, as all gifts must be, and does not embrace necessaries which a husband is under a legal duty to furnish his wife.

From the testimony in the record before us it appears that the wife bought the shawl with her "individual means;" whether these means came from the husband or not is not disclosed; but whether they did or did not, the jury were instructed to find the property in the husband if they found that the shawl was "in his custody and under his control" at the time of the larceny. And it is quite evident from the whole record that the court below was of opinion, and that the jury may have so understood, that the mere fact that the goods were in the dwelling-house of the defendant, where he was living with his wife, put them "in the custody and under the