dissent">Mr. Justice McGowan

dissenting (omitting his statement of the case, which has already been given). Some of the exceptions misconceive the charge of the judge, which should be set out at length in the report of the case. As we gather it, the exceptions may be condensed into the allegation of error in charging “that if the wife made the contract, whether in express words or not, if she induced the merchant to sell the articles to her, not as agent of her husband, but in her own right, to be paid for out of her estate, and the credit was clearly given on the faith of her property, then she and her separate estate are liable, as well for the articles purchased for the support of herself and children as for those which she sent directly to her plantation,” &c. We must assume that the verdict of the jury, as we think, in accordance with the evidence, established the facts that Mrs. Thomson purchased the goods on her own account, to be paid for out of her separate estate, of which she gave information to the plaintiff, who extended the credit to her on the faith of that property.

It must be confessed that there is some confusion in our law as to the power of a married woman to control her separate property, or charge the same by her engagements; and in the hope of making what we say upon the subject intelligible, we will go back a little. Prior to our present constitution a married woman, as to the right to hold property in her own name as against the marital rights of her husband, was still under the disabilities of the common law. But a system had been built up in the Court of Chancery, on the doctrine of trusts, by which property could be conveyed by deed to one sui juris, which deed might at the same time declare in favor of the wife such equitable interests as the donor might desire. This creation of a substantial *510interest in the wife, separate from that of her husband, necessarily raised the question as to what control, notwithstanding the marital rights, she should have over that property. In England, after much debate, it was settled that a married woman, as to her separate estate, was a feme sole, with the absolute jus disponendi, unless the deed restrained her. Most of the American States followed this rule, but our State led the way in adopting precisely the opposite view, viz., that she had no right to contract as to her separate estate, except in so far as it was given by the instrument creating the estate.

Under the operation of this rigid rule it was soon perceived to be impracticable to give the wife the satisfactory enjoyment of her property, without any control over it, even for necessary repairs and the preservation of the property itself; and therefore when there were no express powers given in the deed, the courts were under the necessity of implying certain powers as inherent in the very ownership itself of property. As, for example, in the case of Clark v. Makenna (Cheves Eq., 163 — as late as 1840), Chancellor David Johnson, with the full concurrence of Chancellors Job Johnston and Harper, said: “If a marriage settlement or other agreement conferring on the wife a separate estate, clothes her with the power of contracting debts and charging her separate estate with their payment, I presume there could be no question about her authority ; so that in every case the question is whether the power is expressly or impliedly given. If the question were now open, I should strongly incline to the opinion that it ought to be implied, in all cases, to the extent of the wife’s dominion over the estate — to the corpus of the estate, if that was subject to her control, and to the income only, if her powers were limited to that. In the case in hand, the power of contracting debts, and thereby charging her estate with the payment, appears to me to be expressly reserved to the wife in this marriage settlement. * * * Now, the power to contract debts, it is true, is not expressly given, but it is necessarily implied by the covenant that her separate estate should be liable for them,” &c.

Such was the condition of our law as to the perplexing question of the wife’s separate estate in equity, down to 1868, when the constitution was adopted, and soon after the act of 1870, *511which was amended in 1882; so that the written law of the State now is as follows: The Constitution, section 8, article XIV., declares, “The real and personal estate of a woman, held at the time of her marriage, or that she may thereafter acquire either by gift, grant, inheritance, devise or otherwise, shall not be subject to levy and sale for her husband’s debts, but shall be held as her separate property, and may be bequeathed, devised, or alienated by her the same as if she were unmarried.” And the General Statutes provides: “Section 2037. A married woman shall have the right to purchase any species of property in her own name, and to take proper legal conveyances therefor, and to contract and be contracted with as to her separate property in the same manner as if she were unmarried.” These were certainly fundamental changes, and it is quite manifest that they were not intended to abridge, but rather to enlarge the powers of a married woman over her separate estate. Her right to acquire and hold being increased, so was her power of disposal. All the authorities agree that these provisions effected at least two things: first, dispensing with the necessity of a trustee, the separate estate is made legal instead of equitable; and, second, instead of leaving no power to contract, every married woman having a separate estate, now has attached to it the powers to alienate it, and to contract and be contracted with in relation to that separate estate as if she were unmarried.

In the case before us, it does not appear how or when the separate estate of the defendant was created, or what powers, if any, were attached to it. We only know from the defendant’s letter to the plaintiff, when she was urging her claims to obtain credit, that she hada handsome estate in York County, which her husband, who, as it seems, has no tangible property of his own, superintended as her agent. In this state of facts we must suppose that Mrs. Thomson had a statutory separate estate, and, therefore, had the legal title and the right to make contracts respecting that property. She did apply to the plaintiff for credit, giving full information as to her property, and the plaintiff, who had refused to credit the husband, extended her credit on the faith of that property. Was that not a contract “as to her separate estate” ? It was substantially admitted that the plain*512tiff was entitled to $168.50 of his account, for the articles such as com and bacon, which were probably intended for the defendant’s plantation, on the ground, as stated, that the contract quoad these articles, was in reference to her estate; but it was claimed that as to the other articles of family supplies, &c., the contract was not “in respect to her separate estate.” I am unable to see the distinction indicated. The contract was a unity, and how could its character, as to being or not being in reference to her estate, be determined by the use she might make of the articles purchased — half for one purpose and half for another? The fact is, her contract had no necessary connection with the use she was to make of the articles, as to which she might be silent, or deceive the seller. The seeming confusion has, no doubt, grown out of the phrase formerly much used, “for the benefit of the separate estate,” which had its origin in the doctrine of the equity of the creditor (when the married woman could not contract at all), which gave to the creditor who had made advances for the benefit of the separate property, reimbursement out of that property. If the express power given to contact as to the separate estate, must be construed as identical with this equity of an advancing creditor, then the new power only increases the confusion and accomplishes nothing whatever.

But if the equity of the advancing creditor were now the only law upon the subject, we incline to think that the plaintiff was. entitled to be reimbursed his whole account, including the supplies for the defendant’s family, as Avell as for her plantation. Chancellor Harper, in Magwood v. Johnson (1 Hill Ch., 232), states the doctrine thus: “The equity on which a creditor comes into this court to render a trust- estate liable to the payment of his debt, is this, that he has advanced his money or given credit to effect the objects of the trust, and having accomplished the objects of the trust at his own expense, he has a right to be put in the place of the cestui que trust, or to be reimbursed out of the trust fund.” Now, we cannot agree that the only object of a separate estate in a married woman is to perpetuate and preserve itself, even though the owner thereof should not have the means of support. We rather suppose that one of the objects, indeed the main and primary object, is to give the married woman the *513use of it, at least the rents and profits, for the purpose, notwithstanding the misfortunes or improvidence of the husband, of securing to her and her children at all events and under all circumstances a support according to their conditions in life ; and, therefore, a creditor who gives such support, comes within the rule as to extending credit to effect the objects of the trust.

It is true that, as a rule, the husband is still bound to support his wife, although her property does not pass to him under his marital rights, as it did when the rule was established. But there are exceptional cases, as where the husband, as-in this case, has no property or is unable to support his family. In such case the law neither requires them to starve nor to impose upon their creditors. As was said in the case of Magwood v. Johnson, above cited, “A husband, if he be of ability, is bound to support his wife and family, though they may have property of their own. But there may be cases where the husband is not of ability. He may be embarrassed or without property, and the wife may be compelled to support herself out of her separate estate. And she might be subjected to the greatest distress if she could not obtain the means of support on the credit of her separate estate. * * * How far have our courts departed from the English doctrines ? Thus far — that the wife should not by her own act merely charge her separate estate [it is different now]. The court will look into the necessity and propriety of the charge. But it still must appear that the credit was given to the wife, and not the husband,” &c. The whole doctrine is condensed by Mr. Kelly as follows: “Now, under both rules- (English and American) contracts which are necessary and proper to enable a married woman to hold and enjoy her separate estate created by statute, such as contracts for needed improvements or repairs of the separate estate, contracts beneficial to the estate, and in some cases where the benefit enures to herself or the estate, are valid and binding.” Kelly Married Women, page 268, and authorities.

It seems to me, therefore, that the judgment of the Circuit Court should be affirmed — the judgment to be levied and collected of the separate property of the defendant and not otherwise.

Judgment reversed.

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