¶1I cannot concur in the opinion of my learned brethren, just delivered.
¶2It is manifestly unjust, that Mrs. Steenbergen should be left to enjoy the furniture in question, while she refuses to pay for it out of the ample fund fairly pledged for payment, especially, as the fund is itself increased just so much, and since there is no possible way but this, of obtaining payment at all. If this bill is dismissed, the debt is, of course, entirely worthless.
¶3Col. Beirne died worth more than half a million of dollars. After giving some small legacies, he declares in his will, that the balance of his estate shall be divided equally among his children. This gives Mrs. Steenbergen more than 83,000 dollars. At the death of her father, in March, 1844, she, with her daughters, some of them fully grown, was living at board, in the city of New-York. Until a short time before her father’s death, she had lived in an expensive and well-furnished house in Barclay street, in a style of life corresponding with her rank and her expectations from Col. Beirne’s ample possessions. She seems to have possessed the affections and confidence of her father, in the fullest measure. He gave her an equal share of his estate, and, carefully provided, that his daughter and her children should have the fullest enjoyment of it possible. The language of the will is “I give my property to be equally divided among my children”—“the property given to my daughter Mary D. Steenbergen, is for the exclusive use of her and her children, for their unimpaired enjoyment.”
¶4This is a devise of property—of property too, for an “unimpaired,” or absolute enjoyment. It is not an uncertain, *15indefinite license to Mrs. Steenbergen, to call on her trustees, to dole out, from time to time, so much of her share as should be satisfactory to them. They hold the fund for her enjoyment—for her full enjoyment—in exact subservience to her wants, not their pleasure—not as distributers of their own bounty, but of the testator’s bounty.
¶5No question is made, by the counsel for the defendants, but that by the law of New-York, in a court of equity, a feme covert is possessed of the power of a feme sole in the use and disposition of her separate property. So the law is laid down, in Jacques v. Methodist Episc. Church, 17 Johns. R. 548. Such is the law of England, as may be seen by the array of cases in Clancy and 2 Sto. Eq. 36.—and such is our law. Imlay v. Huntington & al. 20 Conn. R. 146—178.
¶6Nor is the case embarrassed with the question, sometimes raised, what shall be taken to be an appropriation of separate property, by a feme covert. The antient cases in England held, uniformly, that contracting a general debt was an appropriation, or else such an engagement amounted to nothing; for as the woman was a feme covert, she would not be personally liable; and if her separate property could not be reached, she would not be liable at all. Such, I rather think, is the law, at the present time, though it has sometimes been called in question. But in this case, there is no such question; for at the time of the purchase, and indeed as a part of it, her property was pledged for this debt, and it was mutually agreed, that the debt should be paid out of it; and nothing more than this is required in any case which has fallen under my observation.
¶7Let us look at the circumstances which attended the purchase of this furniture.
¶8At the death of Col. Beirne, Mrs. Steenbergen was living, at the Clinton Hotel in New-York, with her daughters. Learning of the ample provision made for her, in her father’s will, she re-purchased the furniture, which she had, shortly before, given up, to satisfy her husband’s debts, in order that she might again resume house-keeping, which she did, in her former residence. She received back the furniture, worth more than 6,000 dollars, for the note in question of 3,589 dollars, 70 cents, upon an agreement with Mr. Leavitt, that, *16when due, it should be paid out of her estate. From that time, she has continued, uninterruptedly, to enjoy her purchase, except that she has sold the furniture of two rooms, and used the money received from it, for herself, thereby relieving her own funds to that extent. Oliver Beirne, one of the trustees, was, all this time, living in New-York, and had not made any payment to her, whereby to purchase furniture, or any thing else. He did then, as he has continued to do since, leave the management of her family affairs to her own judgment.
¶9It is further found, that the furniture in question was neither “extravagant nor unreasonable."
¶10Why now shall not this debt be a lien on Mrs. Steenbergen's share of the estate, or the income from it, and on the furniture itself? The objection urged, is, that the trustees did not give their consent to its purchase; and that without their consent, no debt can be contracted, which will incumber the property or the income from it. The answer is two-fold. Their assent to this purchase was not indispensable; and if it was, they may be held to have given it.
¶11First, was their assent indispensable? It is certain the cestui que trusts are ever to have an “unimpaired,” exclusive enjoyment of this portion of the estate. Can they, then, enter into no contracts whatever—not even for conveniences or necessaries, without first obtaining consent? Can they employ no mechanic, instructor, physician, servant or labourer until leave obtained? Are both of the trustees, (for one is not enough,) first to be hunted up, by Mrs. Steenbergen, and made acquainted with all her wants and purposes? And when she has found them, and respectfully supplicated their consent, what if they refuse to give it? What is her situation then? Now, I must think this is a dependence—I had almost said, a degradation—little anticipated by Col. Beirne—a restriction contrary to the manifest object of his bounty, and quite incompatible with the comfort and respectability of this family. Should they object to the purchase of articles of convenience and necessity, would not equity instantly afford relief? And if so, why will it not now? This purchase is found to be of that character; and all parties are now before the court, that justice may be done.
¶12*17Is it said, Mrs. Steenbergen may perhaps enter into contracts to procure necessaries, without getting previous consent from the trustees, but can go no further than this. Well, she has not gone farther than this, in the purchase under consideration; and this is all I have occasion or desire to maintain, in order that this creditor should be entitled to payment. The power of the trustees to interpose, in certain cases, to protect or distribute this fund for the benefit of the family, is a different thing altogether. This is not that case, but quite otherwise. If indeed, the trustees are interposing here, for the benefit of the family, their sense of propriety and honesty is not the most correct, in my judgment; and if Mrs. Steenbergen approves of the course pursued, she is willing to enjoy other people’s property, without paying for it.
¶13There is a case in our own court, Donalds v. Plumb, 8 Conn. R. 448. which illustrates and supports these equitable views. Rufus Marsh made his will, giving the use and improvement of his estate for the support of his daughter Abigail Kingsbury, during her life. She became sick, and employed Dr. Plumb as her physician. Not being able to get his pay, he brought a bill in equity to reach her equitable estate, and he succeeded. Williams, J., in giving the opinion of the court, says, “when property is given, as it often is, for the sole and separate use of a feme covert, and she contracts debts for her support, the fund can be resorted to, by a creditor, who has furnished her with necessaries.”
¶14… “But surely, Mrs. Kingsbury, upon the credit of a fund given to support herself and her children, will, in a court of equity, be considered as authorised to procure, by means of it, sufficient assistance to prevent them from suffering for want of food and medical aid.”
¶15Further, if it be important, the trustees and Mrs. Steenbergen have uniformly, put the same construction I contend for on this devise, viz. that she was to conduct, at least her domestic affairs, without their supervisory controul.
¶16Oliver Beirne lived in New-York, and knew that his sister must have occasion to purchase furniture for the family. What did he do towards it? Did he advance money to aid her? Did he object to her buying it on credit? Or to her doing whatever might be needful, according to her own pleasure? *18Obviously, he left the whole matter to his sister’s taste and decision. Pray, how did he suppose the furniture would be, or had been, procured, except just as it was procured? He had then advanced her nothing. So too, he never objected or intimated, that he dissented from her purchase. Did he, at any time, after he knew his sister had incurred this debt, repudiate it, or inform Mr. Leavitt of her inability to contract, or of his dissatisfaction with her conduct? Never—but, on the contrary, when called upon by the creditor, to meet this engagement of his cestui que trust, he only said, he had not then the money in hand, to pay the note. He knew all about what his sister had done; and I do fully believe unequivocally acquiesced in her acts. Besides, these brothers not only left their sister to provide necessaries and conveniences for her family, but after the purchase in question was made, and really following it up, at her mere pleasure, they took a deed, in their names, for her, of a site for an expensive house in Fairfield in Connecticut, and then left her to build, and finish, and furnish the house, and fit the grounds about it, according to her pleasure. So they have conducted throughout, never consulted, and never expecting or wishing to be consulted. They meant their sister should have an “unimpaired enjoyment” of what was her own. And so of the moneys since paid her, they have never asked her a question or imposed any restrictions, but committed them to her pleasure alone. If now they propose to raise a question as to her power to act as she uniformly has done, and full in their view too, it would redound more to their credit to wait until they are presented with a case of oppression, or unfairness, and not begin with a transaction so honourable and upright as this is. They have quietly permitted the trust fund to be increased more than the debt in question, and now, while the cestui que trust is enjoying the furniture as if paid for, they resist payment, to save property for the family! If equity cannot interpose, in such a case, then the doors of justice, which should ever be open to redress grievances, are opened in vain.
¶17Bill dismissed.