Bell, J.
The first error assigned impeaches the bond, the subject of this suit, as utterly invalid against the husband, because, as it is thought, the money due under it, when collected, would belong to him. But this depends on the question, whether, in equity, the effect of the instrument is to confer a separate interest on the wife. It is now too firmly settled, by numerous authorities, to admit of question, that a wife may acquire a separate property by agreement with the husband, either with or without the intervention of trustees; McKennan v. Phillips, 6 Whart. 571, 2 Story’s Eq. § 1380. And I think it is beyond doubt, that this may be by bond, conditioned either for the payment of a sum in gross or an annuity to the wife, which will be enforced, in equity at least, as an agreement; Cannel v. Buckle, 2 P. Wms. 243; Watkyns v. Watkyns, 2 Atk. 61; Blaker v. Cooper, 7 Serg. & Rawle, 500. In such case, apart from any question of fraud, the only concern of a court of equity would be to discover whether the donor, intended a trust for the separate use of the wife, and that fact being once clearly established, the husband himself will be turned into a trustee for her, rather than that the trust should fail; Clancy on Married Women, 260. Where the gift or agreement is made in view of immediate separation, the interest created will always bo treated as vesting a separate dominion in the wife, for the circumstances- show that such must have been the intention of the parties, by a necessary implication. Such a conclusion is also frequently established; though the marital relation be never disturbed, and there is no express stipulation that the thing given, or agreed to be given, shall be the separate property of the feme. Examples of this are furnished by Slanning v. Style, 3 P. Wms. 337, Calmady v. Calmady there cited; Mangey v. Hungerford, 2 Eq. Ca. Abr. 156, and particularly Lucas v. Lucas, 1 Atk. 270, where a husband transferred £1000 South Sea annuities into the name of his wife. This was considered so decisive an act as to amount to an agreement by the husband, that the property should become hers. And as in the absence of any intervening rights of creditors, it seems to be agreed the intention of the husband is to determine the nature of the gift or agreement, it is not easy to see how a bond given by him to a trustee for the use of the wife, can be regarded in any other light than as giving her a distinct interest [67]*67in the chose in action; for it is'impossible to account for.such a step on the part of the husband, except, upon the-hypothesis of such an intent. This indeéd would seem to be the-inevitable implication, though the machinery of a trustee be not employed, the only difficulty presenting itself, regarding the remedy for its 'enforcement where there is no distinct-tribunal existing as a court of -Chancery. But where the instrument is executed between the husband and a third party, as here, this formal obstacle vanishes, and I know of no instance in which, .on the ground of coyer turé alone, the marital dominion of the husband' over the interest so created has been held to continue. But at present it is unnecessary to continue this train- of reflection further, for, considered in itself, the obligation under consideration bears upon its face indubitable evidence that ■the sum of money, of which it secures the payment, is to be subject to the control of the wife alone. This is to be found in the clause giving' the absolute power of appointment of the sum- secured, which, without more, would constitute her quasi a.feme sole in regard to it. It is said a po,wer of appointment given to a feme covert may be executed by the. husband, unless he b.e expressly excluded,; but such can never be the case where a husband, as against himself, confers 'a power -on his wife, for this would be manifestly contrary to the object in view, by enabling him to destroy the power at the first moment of its existence. . ■'
We have thus far considered the bohd .executed by the plaintiff in error, within its four corners, and without any reference to extraneous facts; but if we- adopt the defence taken below, that it was in truth given as a security-for the future good behaviour of the obligor towards his wife, and to be used as absolute 'only in the event of his breaking this condition, any lingering doubt which by possibility might remain as to the character of the interest intended to be vested in the wife, on the happening of the contingency guarded against, is put to flight. In that event, the arrangement looked to the separation of the parties, brought about by the misconduct of the husband; and .this places the case in. the class of cases for a separate maintenance, which are of course independent of-the power of the husband. The question of the propriety of enforcing such agreement, for the protection, support, and relief of married Women, by insisting upon the covenant of the husband to pay, though formerly much agitated, seems - now at rest; and, indeed, as is remarked by Mr. Justice Story in' his Commentaries on equity .jurisprudence,.vol. 2, § 1429, when speaking’of the general exercise of jurisdiction in' regard to those under coverture, “ it is [68]*68difficult to resist the impression, that the interposition of courts of equity is founded in wisdom, in sound morals, and in a delicate adaptation to the exigencies of a polished and advancing state of society.”
In the case at bar, the jury having found upon parol evidence, admitted to show what the defendant below alleged to be the true character of the bond, and thus to control its otherwise absolute character, that the final separation of the husband and wife was brought about by the misconduct of the husband, the effect was to withdraw the contingency which might else have attached upon the instrument during the whole course of coverture, and thus restore to full activity the prima facie absolute undertaking of the husband to pay. It cannot therefore be said that the attempt to enforce it by suit, as an absolute bond, was a fraud upon the understanding of the parties to it; for that very agreement contemplated the event which the plaintiff below averred, and it seems proved, had actually taken place, as conferring an unrestricted title to the money sued for. It follows from what has been said, there is no soundness in the first and third suggestions of error, depending upon supposed mistakes in the answer of the court to the first and third points submitted. But the plaintiff in error complains that the court withdrew from the consideration of the jury so much of his defence as rested in the disputed question of fact, whether the separation was caused by the fault of the husband or of the wife, by putting the case solely on the ground of fraud at the execution of the bond. Judging from his notice of special matter and the evidence given under it, he relied principally upon two grounds to defeat the action, so far as controverted facts were involved. These Avere, first, and mainly, that he was induced to execute the bond by a false and fraudulent representation of its character, made to him at the time of its execution; and second, that it was given only to be effective in a certain contingency to spring from his misbehaviour, which had not occurred. Of the latter of these defences, it is admitted he had the full advantage before the jury.
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Bell, J.
The first error assigned impeaches the bond, the subject of this suit, as utterly invalid against the husband, because, as it is thought, the money due under it, when collected, would belong to him. But this depends on the question, whether, in equity, the effect of the instrument is to confer a separate interest on the wife. It is now too firmly settled, by numerous authorities, to admit of question, that a wife may acquire a separate property by agreement with the husband, either with or without the intervention of trustees; McKennan v. Phillips, 6 Whart. 571, 2 Story’s Eq. § 1380. And I think it is beyond doubt, that this may be by bond, conditioned either for the payment of a sum in gross or an annuity to the wife, which will be enforced, in equity at least, as an agreement; Cannel v. Buckle, 2 P. Wms. 243; Watkyns v. Watkyns, 2 Atk. 61; Blaker v. Cooper, 7 Serg. & Rawle, 500. In such case, apart from any question of fraud, the only concern of a court of equity would be to discover whether the donor, intended a trust for the separate use of the wife, and that fact being once clearly established, the husband himself will be turned into a trustee for her, rather than that the trust should fail; Clancy on Married Women, 260. Where the gift or agreement is made in view of immediate separation, the interest created will always bo treated as vesting a separate dominion in the wife, for the circumstances- show that such must have been the intention of the parties, by a necessary implication. Such a conclusion is also frequently established; though the marital relation be never disturbed, and there is no express stipulation that the thing given, or agreed to be given, shall be the separate property of the feme. Examples of this are furnished by Slanning v. Style, 3 P. Wms. 337, Calmady v. Calmady there cited; Mangey v. Hungerford, 2 Eq. Ca. Abr. 156, and particularly Lucas v. Lucas, 1 Atk. 270, where a husband transferred £1000 South Sea annuities into the name of his wife. This was considered so decisive an act as to amount to an agreement by the husband, that the property should become hers. And as in the absence of any intervening rights of creditors, it seems to be agreed the intention of the husband is to determine the nature of the gift or agreement, it is not easy to see how a bond given by him to a trustee for the use of the wife, can be regarded in any other light than as giving her a distinct interest [67]*67in the chose in action; for it is'impossible to account for.such a step on the part of the husband, except, upon the-hypothesis of such an intent. This indeéd would seem to be the-inevitable implication, though the machinery of a trustee be not employed, the only difficulty presenting itself, regarding the remedy for its 'enforcement where there is no distinct-tribunal existing as a court of -Chancery. But where the instrument is executed between the husband and a third party, as here, this formal obstacle vanishes, and I know of no instance in which, .on the ground of coyer turé alone, the marital dominion of the husband' over the interest so created has been held to continue. But at present it is unnecessary to continue this train- of reflection further, for, considered in itself, the obligation under consideration bears upon its face indubitable evidence that ■the sum of money, of which it secures the payment, is to be subject to the control of the wife alone. This is to be found in the clause giving' the absolute power of appointment of the sum- secured, which, without more, would constitute her quasi a.feme sole in regard to it. It is said a po,wer of appointment given to a feme covert may be executed by the. husband, unless he b.e expressly excluded,; but such can never be the case where a husband, as against himself, confers 'a power -on his wife, for this would be manifestly contrary to the object in view, by enabling him to destroy the power at the first moment of its existence. . ■'
We have thus far considered the bohd .executed by the plaintiff in error, within its four corners, and without any reference to extraneous facts; but if we- adopt the defence taken below, that it was in truth given as a security-for the future good behaviour of the obligor towards his wife, and to be used as absolute 'only in the event of his breaking this condition, any lingering doubt which by possibility might remain as to the character of the interest intended to be vested in the wife, on the happening of the contingency guarded against, is put to flight. In that event, the arrangement looked to the separation of the parties, brought about by the misconduct of the husband; and .this places the case in. the class of cases for a separate maintenance, which are of course independent of-the power of the husband. The question of the propriety of enforcing such agreement, for the protection, support, and relief of married Women, by insisting upon the covenant of the husband to pay, though formerly much agitated, seems - now at rest; and, indeed, as is remarked by Mr. Justice Story in' his Commentaries on equity .jurisprudence,.vol. 2, § 1429, when speaking’of the general exercise of jurisdiction in' regard to those under coverture, “ it is [68]*68difficult to resist the impression, that the interposition of courts of equity is founded in wisdom, in sound morals, and in a delicate adaptation to the exigencies of a polished and advancing state of society.”
In the case at bar, the jury having found upon parol evidence, admitted to show what the defendant below alleged to be the true character of the bond, and thus to control its otherwise absolute character, that the final separation of the husband and wife was brought about by the misconduct of the husband, the effect was to withdraw the contingency which might else have attached upon the instrument during the whole course of coverture, and thus restore to full activity the prima facie absolute undertaking of the husband to pay. It cannot therefore be said that the attempt to enforce it by suit, as an absolute bond, was a fraud upon the understanding of the parties to it; for that very agreement contemplated the event which the plaintiff below averred, and it seems proved, had actually taken place, as conferring an unrestricted title to the money sued for. It follows from what has been said, there is no soundness in the first and third suggestions of error, depending upon supposed mistakes in the answer of the court to the first and third points submitted. But the plaintiff in error complains that the court withdrew from the consideration of the jury so much of his defence as rested in the disputed question of fact, whether the separation was caused by the fault of the husband or of the wife, by putting the case solely on the ground of fraud at the execution of the bond. Judging from his notice of special matter and the evidence given under it, he relied principally upon two grounds to defeat the action, so far as controverted facts were involved. These Avere, first, and mainly, that he was induced to execute the bond by a false and fraudulent representation of its character, made to him at the time of its execution; and second, that it was given only to be effective in a certain contingency to spring from his misbehaviour, which had not occurred. Of the latter of these defences, it is admitted he had the full advantage before the jury. If the court beloAV, in charging the jury, did not make it a prominent topic of remark, we can very well understand how it occurred, from the manner in which the defendant specifically called the attention of the court to the points of his defence. Each of the three propositions submitted by him, and on which he asked the jury to be instructed, proceeded upon the supposed invalidity of the bond; for though the last glanced at the subject of the misbehaviour of the husband, it is only introductory to the broad proposition that the [69]*69attempt to set it up as an absolute bond was a fraud. The mind of the presiding judge was thus directed to the subject of the supposed fraud, legal and moral, and to this alone; and upon these points his answer leaves nothing to be desired. To reverse the judgment because he confined himself principally to these, would be in violation of the well-established rule, that an omission to instruct the jury upon all the lines of defence assumed, is not such an error as will affect the judgment, unless his opinions have been specifically called for. If, indeed, the course of the judge had been such as to exclude from the consideration of the jury a material ground of objection to the plaintiff’s .recovery, a different case might have been presented. But we see no evidence of this. On the contrary, we are satisfied from the paper book, the defendant below was permitted to go to the jury upon every disputed matter of fact, fully and without any improper hinderance, and therefore, on this score, he has nothing to complain of.
The court affirmed the second point submitted by the defendant. It is not-therefore perceived on’tjiat ground, he can assign error in this part of the charge.
The bills of exception taken to the ruling of the court upon the questions of .evidence may be disposed of in very few words. The rejected declaration of the wife, referred to in the first bill, appears to us to have been entirely irrelevant to the issue trying. It was made after the separation, and, at the time it was offered, tended in no degree to controvert any thing which the plaintiff had made a part of his case, or to establish the defendant’s allegation of misbehaviour in the wife. We cannot see how, at that stage of the cause, it could have shed any light upon the matter in litigation. The failure to recover the money might have induced the wife to cast herself upon her husband for support, despite his ill treatment, but it is not perceived how it went to show misconduct in her.
The evidence referred to in the second and third bills was properly received for what it was worth, as a portion of the general bearing of the husband, and the temper and disposition he entertained towards his’wife. It might not have been of much weight with the jury, but we cannot say it ought to have had no influence upon their deliberations. On the whole case, we see no • error in this record.
Judgment affirmed.