Ruffin, J.
The single question presented for consideration in this case is as to the validity of the mortgage given by Mr. and Mrs. Hard}' to the defendant, Holly, embracing a portion of the wife’s separate estate, and executed as it was, without the knowledge or consent of her trustee, and
outside
of the powers conferred upon her in the deed of marriage settlement. •
By the terms of that deed her power of disposition over the property conveyed was limited to be exercised, either by an order for its conversion under sale and directed to her trustee, or by a regularly executed will; and in case of her failure to dispose of it in one of these specified modes,
the property at her death was to devolve upon those who would then be ber heirs at law or next of kin.
Under the rule of the English chancery courts a married' woman in respect to any separate property she may have, is-considered as a feme sole, with power to convey and do every other act touching it, except as she may be restrained by some positive provision of the deed of settlement; and even if that instrument should prescribe some particular mode of disposition, she may resort to any other unprohib-ited mode, by reason of her general power and dominion over its subject.
In the courts of equity of a majority of the American states, an exactly opposite rule has prevailed ; and a married woman, entitled to a separate estate, is regarded as a feme covert, and subject to every disability of the common law, except as she may have power conferred upon her under the deed of settlement in express and positive terms. When the point was first presented in this state, as it was in the-case of
Frazier
v.
Brownlow,
3 Ired. Eq., 237, this court followed the lead of the English chancellors and gave the fullest indulgence to the powers of the wife, and so again it was-done in
Harris
v.
Harris,
7 Ired. Eq., 111, though in this latter case, there was a division of opinion amongst the judges which caused the question- to be much discussed'. It cair do no- good, at this day, to revive that discussion, nor is it necessary. For when the question next arose in the case
Knox v. Jordan, 5
Jones Eq., 175, the court, as then constituted, without division and without any sort of reservation repudiated the doctrine of the English courts and adopted that which prevailed in most of the courts of the states, and whether this was wisely done or not, that case has been too -often approved and doubtless too often acted upon in matters intimately connected with the interests and comfort of families, to admit of its correctness be
ing now called in question. We
must
take it to be the settled law of this state, at least, that a married woman, as to her separate property, is to be deemed a feme sole only to the extent of the power expressly given her in the deed of settlement. Her power of disposition is not absolute, but limited to the mode and manner pointed to in that instrument • and when that is silent, she is powerless.
The counsel for the defendant admit this to be so in the case of settlements of personal property; but insist that this rule of construction should not be permitted to embrace similar conveyances of real estate. Their argument proceeding upon the difference in the two kinds of property, is that the wife is indebted for her right to exert
any sort
of authority over her personalty, to the interposition of a court of equity; for, without that, all her property of that character would, immediately upon her marriage, vest absolutely and to the entire annihilation of all her interest or power in the husband' — and that having thus
created
this new interest in her, the court assumes the right to regulate and mould it, as may best subserve the policy of the law and the interests of the parties. But as to her realty: They say the court lias conferred no new estate or power on her; and none was needed to protect it from the. dominion of the husband; for, bj law, it remained hers after marriage, descended to her heirs, and could be parted with or not, only as she might consent; and since the court has given her no new right, it should not undertake to restrain that which by law she should enjoy.
We cannot adopt the view suggested by counsel. For we do not discover that the
jus mariti
to the wife’s personalty had any thing to do with the construction put by the courts upon her powers, and most especially with the more modem rule which was not thought of until' long after that right of the husband had been effectually destroyed by the introduction of trustees into deeds of settlement. This new principle
of construction has resulted from a disposition on the pari of the courts to pay greater respect to- the intention of the parties to the instrument, and from experience which taught-that such intention v/as in constant danger of disappoint' rnent, so long as the wife was left exposed to-the solicitations of the husband or allowed to indulge her own generous impulses. It was seen that such settlements-,, though entered upon at the instance of prudent and- anxious friends, with a view to shield the wife and her children as far as possible from the consequences of the husband's misfortunes, or of his vicious or indolent habits of life,, too often failed of their purposes through his practices or her delusions and it was to remedy this evil that the courts restricted her powers over the property conveyed. This being so, it would seem that instead of relaxing its rule in the- case of settlement of real estate to the separate use of the wife, the court, on account of the higher dignity of such estate and its infinitely greater consequence to the parties, should use extreme diligence and care to guard against such a misappropriation as would defeat the intention of the maker of the instrument. We-cannot therefore admit any such distinction between the two-species of property,
upon principle.
It is true that in all the cases occurring in the courts of this state, in which the question as to the powers of the wife has been discussed, personal-property has been the subject of settlement and-of litigation-, but such has not been the case in other tribunals. In the ease of
Williamson
v.
Beckham,
8 Leigh, 20, the court of appeals of Virginia made an express- application of the rule, acknowledged to be good here as to personalty, to real estate settled on the wife, Judge Tuckek, the president of that court, declaring,
“
that a feme covert holding separate properly in real estaje by deed of settlement which empowers her to dispose of it in a designated mode, cannot make a disposition in any other, though other modes are not expressly negatived in the deed.” And so too, both kinds of property
were involved in the noted case of the
Methodist Church
v.
Jacques,
3 Johnson’s Chan. Rep., 78, in which the learned chancellor, KENT, without observing any distinction between the two, held the
true rule
to be, that a married wo-anan, with respect to her separate estate, should be considered-asa feme sole to the extent only of the power given her by her marriage settlement, and
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Ruffin, J.
The single question presented for consideration in this case is as to the validity of the mortgage given by Mr. and Mrs. Hard}' to the defendant, Holly, embracing a portion of the wife’s separate estate, and executed as it was, without the knowledge or consent of her trustee, and
outside
of the powers conferred upon her in the deed of marriage settlement. •
By the terms of that deed her power of disposition over the property conveyed was limited to be exercised, either by an order for its conversion under sale and directed to her trustee, or by a regularly executed will; and in case of her failure to dispose of it in one of these specified modes,
the property at her death was to devolve upon those who would then be ber heirs at law or next of kin.
Under the rule of the English chancery courts a married' woman in respect to any separate property she may have, is-considered as a feme sole, with power to convey and do every other act touching it, except as she may be restrained by some positive provision of the deed of settlement; and even if that instrument should prescribe some particular mode of disposition, she may resort to any other unprohib-ited mode, by reason of her general power and dominion over its subject.
In the courts of equity of a majority of the American states, an exactly opposite rule has prevailed ; and a married woman, entitled to a separate estate, is regarded as a feme covert, and subject to every disability of the common law, except as she may have power conferred upon her under the deed of settlement in express and positive terms. When the point was first presented in this state, as it was in the-case of
Frazier
v.
Brownlow,
3 Ired. Eq., 237, this court followed the lead of the English chancellors and gave the fullest indulgence to the powers of the wife, and so again it was-done in
Harris
v.
Harris,
7 Ired. Eq., 111, though in this latter case, there was a division of opinion amongst the judges which caused the question- to be much discussed'. It cair do no- good, at this day, to revive that discussion, nor is it necessary. For when the question next arose in the case
Knox v. Jordan, 5
Jones Eq., 175, the court, as then constituted, without division and without any sort of reservation repudiated the doctrine of the English courts and adopted that which prevailed in most of the courts of the states, and whether this was wisely done or not, that case has been too -often approved and doubtless too often acted upon in matters intimately connected with the interests and comfort of families, to admit of its correctness be
ing now called in question. We
must
take it to be the settled law of this state, at least, that a married woman, as to her separate property, is to be deemed a feme sole only to the extent of the power expressly given her in the deed of settlement. Her power of disposition is not absolute, but limited to the mode and manner pointed to in that instrument • and when that is silent, she is powerless.
The counsel for the defendant admit this to be so in the case of settlements of personal property; but insist that this rule of construction should not be permitted to embrace similar conveyances of real estate. Their argument proceeding upon the difference in the two kinds of property, is that the wife is indebted for her right to exert
any sort
of authority over her personalty, to the interposition of a court of equity; for, without that, all her property of that character would, immediately upon her marriage, vest absolutely and to the entire annihilation of all her interest or power in the husband' — and that having thus
created
this new interest in her, the court assumes the right to regulate and mould it, as may best subserve the policy of the law and the interests of the parties. But as to her realty: They say the court lias conferred no new estate or power on her; and none was needed to protect it from the. dominion of the husband; for, bj law, it remained hers after marriage, descended to her heirs, and could be parted with or not, only as she might consent; and since the court has given her no new right, it should not undertake to restrain that which by law she should enjoy.
We cannot adopt the view suggested by counsel. For we do not discover that the
jus mariti
to the wife’s personalty had any thing to do with the construction put by the courts upon her powers, and most especially with the more modem rule which was not thought of until' long after that right of the husband had been effectually destroyed by the introduction of trustees into deeds of settlement. This new principle
of construction has resulted from a disposition on the pari of the courts to pay greater respect to- the intention of the parties to the instrument, and from experience which taught-that such intention v/as in constant danger of disappoint' rnent, so long as the wife was left exposed to-the solicitations of the husband or allowed to indulge her own generous impulses. It was seen that such settlements-,, though entered upon at the instance of prudent and- anxious friends, with a view to shield the wife and her children as far as possible from the consequences of the husband's misfortunes, or of his vicious or indolent habits of life,, too often failed of their purposes through his practices or her delusions and it was to remedy this evil that the courts restricted her powers over the property conveyed. This being so, it would seem that instead of relaxing its rule in the- case of settlement of real estate to the separate use of the wife, the court, on account of the higher dignity of such estate and its infinitely greater consequence to the parties, should use extreme diligence and care to guard against such a misappropriation as would defeat the intention of the maker of the instrument. We-cannot therefore admit any such distinction between the two-species of property,
upon principle.
It is true that in all the cases occurring in the courts of this state, in which the question as to the powers of the wife has been discussed, personal-property has been the subject of settlement and-of litigation-, but such has not been the case in other tribunals. In the ease of
Williamson
v.
Beckham,
8 Leigh, 20, the court of appeals of Virginia made an express- application of the rule, acknowledged to be good here as to personalty, to real estate settled on the wife, Judge Tuckek, the president of that court, declaring,
“
that a feme covert holding separate properly in real estaje by deed of settlement which empowers her to dispose of it in a designated mode, cannot make a disposition in any other, though other modes are not expressly negatived in the deed.” And so too, both kinds of property
were involved in the noted case of the
Methodist Church
v.
Jacques,
3 Johnson’s Chan. Rep., 78, in which the learned chancellor, KENT, without observing any distinction between the two, held the
true rule
to be, that a married wo-anan, with respect to her separate estate, should be considered-asa feme sole to the extent only of the power given her by her marriage settlement, and
must
exercise that power in the way prescribed in that instrument. Very true it is, he was subsequently overruled in this by the highest court of errors in the state of New York; but it was done because that court, being one of the very few that did so, adhered to the doctrine of the English courts, which doctrine this court has expressly repudiated and declared to be against reason and unsuited to the habits and customs of our people. Controlled by these authorities, and seeing that the danger to the wife’s separate estate attending the exercise on her part of an unrestrained power of disposition, is as great in the ease of real estate as of personalty, (of which wre could have no fitter illustration than the very case now under consideration) we do not feel at liberty to remove any of the disabilities which the law, as administered in this country, has imposed upon her, not capriciously, but from the highest consideration for her best interest and the interest of those who are to come after her.
Nor can we admit, as is further suggested by counsel, that it is a case for the application of the “Doctrine of the Defective Execution of Powers.” Since-the power of the wife is altogether a
delegated
one, to be exerted according to the strict intention of the maker of the settlement, or not at all, there is no room in this case for the operation of any such doctrine.
In arranging such settlements, one great end most commonly aimed at is the employment of a prudent trustee, whose cooperation if not his actual assent shall be needed in any proposed disposition of the property settled, thereby at
all times, securing for the wife, if nothing more, the benefit of his counsel and advice. This furnishes another reason why the courts so scrupulously adhere to the terms of the instrument, and will not permit the property to be parted with or encumbered, without such cooperation, if required according to its terms. In any view therefore which we are able to take of this case, the mortgage given by Mr. and Mrs. Hardy to the defendant cannot be held to be good, and the injunction restraining the sale thereunder ivas properly granted in the court below.
No error. Affirmed.