Philips, P. J.
TYe will first consider this case with [634] reference to so much of the property in question as came to Mrs. Brockenbrough under the will of her mother. The first important fact to be noted is, that the interest created for Alice under this will is only a life estate. Only the usufruct of the property, in whatever form the trustee may put it, enures to her benefit. The title to the property is first in Todd as executor, and then as trustee. There is no power of alienation, disposition, or right to manage and control by Alice at any time nor under any circumstances. The whole power of control, management, and conversion of the property is lodged by the testament in the testamentary ex'ecutor, or trustee, during the life of Alice, with remainder to her children,, and, in the event of the failure of such issue, to her brother, John S. Thomas. The cestui que trust has no voice in the matter. How, then, could she create an equitable charge upon this property, as of her separate estate, which a court of equity could enforce ? The idea runs, as a thread of gold, through the whole doctrine of a married woman creating a charge by her contract, which a court of equity will enforce, against her separate estate, that it is the incident of the jus disponendi by her as to such property, particularly so as to personalty.
Bishop, in his work on Married Women (vol. 1, sec. 870), explicitly predicates the capacity of the feme covert “to charge the estate with a specific debt or agreement,” as “the lesser power” growing “out of the power which she has to dispose of her separate estate, or of the income thereof.” And in section 872, he further says: “It is but reiterating, in another form of words, to say, that if a married woman has the authority to convey her separate estate, she can, therefore, pledge or charge it. with a debt or other engagement, whenever she employs express terms, or those which necessarily carry with them this intent.” This is so recognized by the following authorities: 1 Lead. Cases Eq. 399; Story Eq., sec. 1397; Whiteside v. Cennon, 23 Mo. 457. I am aware of the language and ruling in Martin v. Colburn, 88 Mo. 229, where it was [635] held, that, as to real estate, in which the feme covert has a separate estate, the husband must join to pass the-estate. But that does not affect the principle under discussion; as the co-action of the husband is but the-restriction placed by the statute concerning conveyances upon the mode of alienation by the wife as to her realty. It in no other wise touches the quality of her estate; thejus disponendi still remaining, only the mode is different as to realty. But in the case at bar the title to the property, mere personalty, as to which she can convey her separate estate without the cooperation of her-husband, was by the will vested in the trustee, to be held and applied by him in a specified manner and limited extent, with no power or right in the cestui que trust to dispose of it in any manner.
The courts universally recognize that the power of' appointment, which is but the synonym of creating a charge or pledge, may be restrained by the language of the instrument creating the estate. Schouler Dom. Bel.,’ secs. 131-139; 1 Bish. Mar. Worn., secs. 846-859-868. As said by McKinney, J.,in Litten v. Baldwin, 8 Humph. 209-214: ‘c It is laid down as the settled doctrine upon this • subject that the extent of the power of a married woman over her separate estate depends upon the terms of the deed or settlement; she is to be regarded as a feme sole only so far as the deed has expressly conferred upon her the power of acting as such; she can exercise no authority or control over her separate property, excex>t such as is specially given in the deed, and only in the mode therein prescribed.”
So Ch. Kent, in Church v. Jacques, 3 Johns. Ch. 77-113, asserts that when the estate of the wife is created by written instrument, she “is to be deemed a feme sole, sub modo, or to the extent of the powers clearly given by the settlement.” He further declared, that when the instrument creating the trust “says that she is to receive from her trustee the income of her property, as it from time to time may grow due, it does not mean that she may, by anticipation, dispose at once of all the-[636] income. Such a latitude of construction is not only unauthorized by the terms, but it defeats the policy of the settlement, by withdrawing from the wife the protection it intended to give her.”
Without going so far as to ass,ert that Mrs. Brockenbrough could not by contract create a charge on the already accrued interest, on the trust estate in the hands of the trustee, which the trustee would be bound to pay over to her, I maintain that she cannot, in the manner claimed by the plaintiff here, thus dispose of, by way of equitable charge, the income to accrue in the future, for two reasons: First, it would be by way of anticipation, in contravention of the scheme and purpose of the donor; and, second, because no charge upon a separate estate can arise where the estate itself is not in esse at the time of the contract. The evidence in this record wholly fails to show that, at the time the notes in -question were executed by Mrs. Brockenbrough, or even at the time the suit was brought, there was one dollar of accrued interest due on the trust fund, much less that any such interest was then in the hands of the .trustee. On the contrary, the proof was, that even at the time of entering the decree the interest sought to be charged was outstanding, merely owing by the, debtor, and might never be collected.
It is true that the doctrine of anticipation is more peculiarly an English rule, and is predicated usually on express provisions of the creative instrument; but it, névertheless, may arise in a case where there is no such express provision, as where, from the whole tenor and purpose of the settlement, it is apparent that it was the design of the donor to create an annuity for the benefit of the wife and her children, during her natural life, and at her death to go to her children, and to no other use. Freeman v. Flood, 16 Ga. 528; 2 Perry on Trusts, sec. 670; Church v. Jacques, supra. Under the provisions of the will, Todd, the executor and trustee, could not be compelled to pay on an order, by anticipation, the interest thereafter to accrue. It would be [637] contrary to the expressed intent of the testatrix t<> provide an annuity for her daughter and family. The trustee could pay the interest for no other purpose or use.
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Philips, P. J.
TYe will first consider this case with [634] reference to so much of the property in question as came to Mrs. Brockenbrough under the will of her mother. The first important fact to be noted is, that the interest created for Alice under this will is only a life estate. Only the usufruct of the property, in whatever form the trustee may put it, enures to her benefit. The title to the property is first in Todd as executor, and then as trustee. There is no power of alienation, disposition, or right to manage and control by Alice at any time nor under any circumstances. The whole power of control, management, and conversion of the property is lodged by the testament in the testamentary ex'ecutor, or trustee, during the life of Alice, with remainder to her children,, and, in the event of the failure of such issue, to her brother, John S. Thomas. The cestui que trust has no voice in the matter. How, then, could she create an equitable charge upon this property, as of her separate estate, which a court of equity could enforce ? The idea runs, as a thread of gold, through the whole doctrine of a married woman creating a charge by her contract, which a court of equity will enforce, against her separate estate, that it is the incident of the jus disponendi by her as to such property, particularly so as to personalty.
Bishop, in his work on Married Women (vol. 1, sec. 870), explicitly predicates the capacity of the feme covert “to charge the estate with a specific debt or agreement,” as “the lesser power” growing “out of the power which she has to dispose of her separate estate, or of the income thereof.” And in section 872, he further says: “It is but reiterating, in another form of words, to say, that if a married woman has the authority to convey her separate estate, she can, therefore, pledge or charge it. with a debt or other engagement, whenever she employs express terms, or those which necessarily carry with them this intent.” This is so recognized by the following authorities: 1 Lead. Cases Eq. 399; Story Eq., sec. 1397; Whiteside v. Cennon, 23 Mo. 457. I am aware of the language and ruling in Martin v. Colburn, 88 Mo. 229, where it was [635] held, that, as to real estate, in which the feme covert has a separate estate, the husband must join to pass the-estate. But that does not affect the principle under discussion; as the co-action of the husband is but the-restriction placed by the statute concerning conveyances upon the mode of alienation by the wife as to her realty. It in no other wise touches the quality of her estate; thejus disponendi still remaining, only the mode is different as to realty. But in the case at bar the title to the property, mere personalty, as to which she can convey her separate estate without the cooperation of her-husband, was by the will vested in the trustee, to be held and applied by him in a specified manner and limited extent, with no power or right in the cestui que trust to dispose of it in any manner.
The courts universally recognize that the power of' appointment, which is but the synonym of creating a charge or pledge, may be restrained by the language of the instrument creating the estate. Schouler Dom. Bel.,’ secs. 131-139; 1 Bish. Mar. Worn., secs. 846-859-868. As said by McKinney, J.,in Litten v. Baldwin, 8 Humph. 209-214: ‘c It is laid down as the settled doctrine upon this • subject that the extent of the power of a married woman over her separate estate depends upon the terms of the deed or settlement; she is to be regarded as a feme sole only so far as the deed has expressly conferred upon her the power of acting as such; she can exercise no authority or control over her separate property, excex>t such as is specially given in the deed, and only in the mode therein prescribed.”
So Ch. Kent, in Church v. Jacques, 3 Johns. Ch. 77-113, asserts that when the estate of the wife is created by written instrument, she “is to be deemed a feme sole, sub modo, or to the extent of the powers clearly given by the settlement.” He further declared, that when the instrument creating the trust “says that she is to receive from her trustee the income of her property, as it from time to time may grow due, it does not mean that she may, by anticipation, dispose at once of all the-[636] income. Such a latitude of construction is not only unauthorized by the terms, but it defeats the policy of the settlement, by withdrawing from the wife the protection it intended to give her.”
Without going so far as to ass,ert that Mrs. Brockenbrough could not by contract create a charge on the already accrued interest, on the trust estate in the hands of the trustee, which the trustee would be bound to pay over to her, I maintain that she cannot, in the manner claimed by the plaintiff here, thus dispose of, by way of equitable charge, the income to accrue in the future, for two reasons: First, it would be by way of anticipation, in contravention of the scheme and purpose of the donor; and, second, because no charge upon a separate estate can arise where the estate itself is not in esse at the time of the contract. The evidence in this record wholly fails to show that, at the time the notes in -question were executed by Mrs. Brockenbrough, or even at the time the suit was brought, there was one dollar of accrued interest due on the trust fund, much less that any such interest was then in the hands of the .trustee. On the contrary, the proof was, that even at the time of entering the decree the interest sought to be charged was outstanding, merely owing by the, debtor, and might never be collected.
It is true that the doctrine of anticipation is more peculiarly an English rule, and is predicated usually on express provisions of the creative instrument; but it, névertheless, may arise in a case where there is no such express provision, as where, from the whole tenor and purpose of the settlement, it is apparent that it was the design of the donor to create an annuity for the benefit of the wife and her children, during her natural life, and at her death to go to her children, and to no other use. Freeman v. Flood, 16 Ga. 528; 2 Perry on Trusts, sec. 670; Church v. Jacques, supra. Under the provisions of the will, Todd, the executor and trustee, could not be compelled to pay on an order, by anticipation, the interest thereafter to accrue. It would be [637] contrary to the expressed intent of the testatrix t<> provide an annuity for her daughter and family. The trustee could pay the interest for no other purpose or use.
Again, the action to subject the separate estate of the feme covert to the payment of her debts is essentially a proceeding in rem. It is to reach specific property, which equity implies she intended to pledge or charge with the payment of the debt contracted. The jxetition in such action must set out the property so intended to be charged ; and, of consequence, that prop^ erty must be in existence, so that if execution went instanter there would be a res for the judgment to operate upon. Neither the petition nor the decree could be by anticipation of something yet to come into being. The very idea that a contract made by a feme covert, which at law is void for the lack of power to make a contract binding in personam, may yet hold good in equity, is bottomed on the fact of an existing separate' estate intended to be pledged by her to its satisfaction. So, if the proposition could be maintained that such a. contract could be enforced in equity against a future acquired separate estate, it would not be necessary that the feme covert should have any separate estate at all at the time of the execution of the contract, or even expect that she would have any thereafter.
The notes in suit, for example, became due, respectively, in December, 1884, and March, 1885. A cause of. action arose on them at the instant of their maturity. Had suit then been brought, and Todd had not even loaned out any money, and no interest had then accrued, on what would a judgment against Mrs. B. have' operated ? There would have been no res. How, then, could the court find by its decree that, at the time of the making of the notes, Mrs. B. had a separate property which she intended to charge with their payment,, and proceed to make a decree in rem? How could'a petition describe a thing not yet created ? To say that. [638] it is a continuing contract, and may be enforced against any subsequently-acquired separate estate of the feme covert, would, in my opinion, be to make the equitable -charge or, pledge, which is the mere incident of the debt, independent of the debt itself. And that would be violative of the maxim, that “the sprout is to savor of the .root and go the same way.” If that property ever was •jpledged, it was at the instant of making the contract; .and if that contract was void in personam, but received ■vitality in rem, the res must have existed at the time of making the contract, otherwise it would have died in its birth ; and I know of no supernatural power of equity to vitalize the dead. The principle contended for is recognized by Sherwood, J., in Boatman’s Savings Bank v. Collins, 75 Mo. 280, when he says : “A feme covert, possessed of a separate estate, may, by giving her promissory note, bind or charge such separate estate. If not possessed of it when she gave the note, there could, a fortiori, be no charge upon it.”
So it is said, in Coon v. Brook, 21 Barb. 548: “In .such actions the complaint should show the nature of the debt, and that the wife had a separate estate when ■ she contracted it; and the nature, situation, and value ■of such estate, or of that portion thereof she has at the time the action is commenced; and that the wife made, •or intended to make, the debt a charge upon such estate .at the time she contracted it. A married woman can ■only incumber or charge property which she owns at the time she contracts debts. Her promises to incumber future acquisitions are void. The creditor can only reach property she owns when the debt is made. He cannot touch what she may afterwards acquire.”
Our conclusion, therefore, is, that so much of the •decree as pertains to the defendant, Todd, is not maintainable.
II. The remaining question is as to that part of the decree which subjects to the debts in controversy the personal property purchased by Branham, as trustee, for Mrs. Brockenbrough. The money with which Bran-[639] ham made this purchase came by virtue of the deed of trust made to him by John S. Thomas. The funds so placed in his hands were essentially trust funds. He took and held them subject to all the limitations and restraints placed upon them by the donor in the trust instrument. Like a charity, a gift for a particular purpose and specified use cannot be altered or diverted by the trustee or beneficiary. It is precisely what the deed of its creation has made it. It must be accepted and applied upon the precise terms on which it was given, and no concurrence among the donees can operate to transfer or apply it.to other purposes, or in any other mode than that prescribed by the donor. McRoberts v. Moudy, 19 Mo. App. 26; 1 Perry on Trusts, secs. 251, 254. One thing is certain, that if the notes, as the evidence indicates, were executed before the deeds from Thomas had been delivered to Branham, the trust fund and the property bought therewith were not subject to this debt, for the palpable reason that the deed of gift expressly declared “that no part of it shall be used to pay any existing debts by whomsoever contracted.” It would be a clear perversion of the trust fund to apply it to the payment of an antecedent debt. The evidence is that out of the trust fund Branham bought, at least, apart of the personal property in question, after-the notes were executed. No charge could, therefore, have been created as to this property by the contract, as it was not then in existence. And further, by the express terms of the trust deed, the trustee was to take to himself, as trustee, and hold, the title of all property bought, “allowing Alice the use of such property, he being the sole judge of how this fund shall be used.”
It was not, therefore, competent for the cestui que trust to make any contract by which the title to this property could, by the decree of any court, be taken from the trustee; thereby destroying the very corpus itself, out of which it was the plain design of the donor to make provision for the continuing maintenance of his sister and her children. By selling the property itself, as [640] the decree directs, the court would kill the goose that lays the golden eggs, and thwart the beneficent object of the donor.
It is difficult, if not impossible, to say from the evidence or the decree, whether any, or what portion, of the property bought by Mrs. Brockenbrough at the executor ’ s sale was embraced in the decree of the court. If, in fact, it covers any or all of that property, there are other insurmountable legal obstacles in the way of upholding it. .
At common law the property bid in at that sale by the wife would have become, jure ma/riti, the property of the husband, in which she would have no separate estate. •Walker's Adm'r v. Walker, 25 Mo. 130. Under the married woman’s act (Rev. Stat., sec. 3296), to constitute it her separate estate, it was not enough that she should have bought it, but it was indispensable that the proof should go further and show that it was paid for out of her separate estate. McCoy v. Hyatt, 80 Mo. 130. At the time the notes in suit were given, the property .bought at the executor’s sale had not been paid for. There was only a promise to pay. She then had no separate estate in the property. Afterwards, the trustee, Branham, paid off the purchase money out of the trust fund in his hands. By the express provision of the trust instrument under which Branham took this fund, he was prohibited from applying it to the payment of any such existing debt. No matter what his antecedent parol understanding with the donor may have been, it was merged in the expressed provision of the trust deed prohibiting him from so using it. If he departed from the obligations and limitations of his office, that gave no creditor of the cestui que tncst the right to seize upon the property contrary to the command of the-trust instrument.. Especially ought not a court of equity, whose peculiar province it is to protect and preserve the trust fund, to lend its aid to the wrongful perversion of it. However just may be the claim of the plaintiff to have payment for the use of her farm, and [641] however strong the moral obligation upon Mrs. Brockenbrough to make good her undertaking, the established rules of law and equity, founded in the experience and wisdom of lawgivers and jurists, are inexorable. '
This being a decree in equity, which, unlike a judgment at law, is divisible (Dickerson v. Chrisman, 28 Mo. 134), the judgment against Mrs. Brockenbrough being in personam is manifest error, and the same is reversed, as is also the judgment in rem against the defendants, Todd and Branham. The judgment as to the other defendants, not appealing, remains intact.
All concur.