1. Affirmative relief will not be granted in equity upon the
ground of fraud unless it be made a distinct allegation in the
2. Nor will a trust alleged in a bill to exist be considered as
proved when every material allegation of the bill in that behalf is
distinctly denied in the answer, and the proofs, instead of being
sufficient to overcome the answer, afford satisfactory grounds for
holding that there was no trust in the case.
3. Under the laws of New York, a married woman may manage her
separate property, through the agency of her husband, without
subjecting it to the claims of his creditors; and when he has no
interest in the business, the application of a portion of the
income to his support will not impair her title to the
Appeal from the decree of the Circuit Court for the Southern
District of New York, dismissing a bill filed by
Page 83 U. S. 17
one Voorhees, assignee in bankruptcy of John Bonesteel, against
the said Bonesteel and Sophia his wife, to get possession of 1,145
shares of the stock of the Nicolson Pavement Company, of Brooklyn,
which, though standing in the name of the wife, he, the assignee,
asserted were held in fact and truth for the husband, but which the
husband and wife asserted were not so held, but belonged, on the
contrary, to the wife alone, and were her separate property.
The case was thus:
John Bonesteel, above named, at first resident in Chicago and
afterwards in New York, a man of active and scheming turn of mind,
but always embarrassed, and Mr. S. B. Chittenden, also first of
Chicago but afterwards of Brooklyn, a man of property and standing
in that place, the second largest taxpayer in the place and editing
or controlling the editorship of the Brooklyn Union,
influential paper there, had married in 1848, or thereabouts, each
of them, a daughter of one Hartwell, a person of property in
Bridgeport. At the date mentioned, Bonesteel was engaged in
business in Chicago, and dealing not unfrequently with his
brother-in-law, Chittenden, who was also in business there, but who
appears to have always rather distrusted Bonesteel's capacity for
the practical management of affairs. In 1853, or 1854, said Mr.
Chittenden, in giving testimony in the matter,
"It became apparent to me that he was insolvent, and I told his
wife's father that I thought so. In 1855, perhaps, I told him he
had better do no business with me. From that time to 1859, Mr.
Hartwell very frequently advanced money to him, as often as twice a
year. When he came to New York to pay his debts, he would advance
money to him to help him through the season. In 1859, he failed and
made an assignment. A year or two later, I think in 1863, he came
to New York to reside, Mr. Hartwell furnishing him money to pay his
board. He had no occupation. After he had been there boarding, Mr.
Hartwell furnishing his daughter money for the support of the
family, a year or longer, he began to do a brokerage dry goods
business. He came and bought goods of me. I knew that he was
bankrupt, and we
Page 83 U. S. 18
never delivered goods until he paid for them. He was my
brother-in-law, but I refused to allow my firm to sell him goods on
any other condition, because I thought somebody might attach them.
I think, within the last year, while pursuing this business, his
father-in-law wrote me a letter stating that he had concluded, 'at
the request of John's wife, to advance him another $3,000,' and he
ordered me to pay the money over to him. I paid him the $3,000, but
I wrote to Mr. Hartwell that he would lose it; that I didn't think
Mr. Bonesteel would ever be able to return it. He said, 'I do
it for my daughter.'
In this condition of things, about the year 1865, one Taylor,
who had also been a resident of Chicago, but had now come to reside
in New York -- had purchased from Samuel Nicolson, the patentee of
that sort of pavement called by his name, a license to furnish it
to certain places, including New York and Brooklyn, in the East and
was now seeking to get the pavement into general public use. He
gave this account of things:
"When I first came to New York, I was an entire stranger in the
city. Being intimately acquainted with Mr. Bonesteel, and Mrs.
Bonesteel, too, and desiring to get the influence of her and her
husband, and other influential parties, I made up my mind to give
Mrs. Bonesteel one-third
interest of Brooklyn, at that
being satisfied that it was for my interest to give it
to her. I had a conversation with her, in the end of June or
beginning of July, 1866. The substance of the conversation was Mr.
Bonesteel had been exerting himself with me, going round and seeing
parties for a month or more, in reference to introducing the
pavement. She felt uneasy about his neglecting his own business,
and running round for me about 'the Nicolson,' which, she was
afraid, would amount to nothing. I impressed upon her that it would
be a good thing, provided I could get certain influences -- the
influence of Mr. Chittenden, the only person whose influence was
wanted -- to help me along. She stated that she had let her husband
have some money to engage in business, and that by his neglecting
he would lose what he had and not make anything out
of the pavement. I told her I was satisfied that she
make four times as
Page 83 U. S. 19
much out of the pavement as Bonesteel would in trafficking in
Bonesteel, the bankrupt, gave an account of things not
dissimilar, as follows:
"Mr. Taylor was a stranger in the city and was anxious to
introduce the pavement here, and at the same time had a large
contract at Elmira, New York; and, knowing that I had many
acquaintances and friends here who could be of assistance to me in
the obtaining of contracts for introducing the pavement, wished me
to secure them; showing me, at the same time, that there was a good
profit in the work; that if I would devote and give my time to it,
I should have all the profit, over $1,000, realized therefrom. . .
. He was constantly coming to me, at my place of business, and
taking up my time in calling upon influential parties and property
owners. I said to him that my wife had furnished to me several
thousand dollars in money to use in the purchase and selling of
merchandise, to assist in the making of money to maintain the
family, and that I did not feel it was right or proper under the
circumstances to give up so much of my time. I called his attention
frequently to his taking so much of my time. He said she should
not be made the sufferer by the misappropriation of my
The account given by Mr. Chittenden, as appearing in
interrogatories put to him and answers received, was thus:
Question. When did you first hear of the Nicolson pavement in
connection with Brooklyn?
Answer. Sometime in the year 1866, standing in the sub-treasury
building, I saw Mr. Bonesteel. I asked him what he was about. He
spoke of a new pavement. I asked him where the pavement came from,
and what the merits of it were. He told me about it, and I asked
him to come to my office and talk to me about it. After hearing his
story, I said, "John, you were always wild. I don't believe in it,
but I will investigate it." I sent to Chicago and Milwaukee, wrote
to gentlemen to whom he referred me, and made inquiries.
Q. Did you have any interview with Mrs. Bonesteel on the
A. I was in the habit of visiting her constantly, and talked
with her about it frequently.
Page 83 U. S. 20
Q. What did she propose to you about it, if anything?
A. I don't know that she proposed absolutely anything to me in
the early part of it.
Q. At any time, about introducing it?
A. According to my recollection, I said, if I can ascertain that
this is a good pavement for Brooklyn, I will do all I can for it;
and I also said, if I do it, Mr. Taylor ought to give you at least
a half interest in it.
Q. Had she then expressed a desire to have you aid her in the
A. She at first expressed a strong disinclination to have her
husband have anything to do with it, because she had no faith in
Q. Later, was her opinion changed?
A. When I became satisfied it was a good pavement, she was very
glad to have my assistance.
Q. You did finally assist in introducing the pavement into this
A. I laid it in front of my own property, and in front of my
neighbor's property, both sides of the street, at my own
A. Because I believed that it was the best pavement that could
be possibly devised for Brooklyn.
Q. How, in your mind, was that to benefit Mrs. Bonesteel?
A. I told her husband and told her that, in consideration of the
advocacy which I could give it, and which the newspaper which I had
the management of could give -- as it was a good pavement -- the
least he could do, if he was a reasonable man, was to give her
half. I urged and insisted on this. But I did not make this a
condition of my advocating the pavement. I had a double object: I
knew it was a good pavement and I desired to benefit Mrs.
Q. You knew she was embarrassed somewhat by her husband's
A. I knew perfectly well that her family were living at the
expense of her father.
Q. You knew that they were living at her father's house?
A. In her father's house, and I had reason to suppose that he
had never returned any of the money that he had received from
Page 83 U. S. 21
him many years, which I think he once said to me had amounted to
Q. Did Mrs. Bonesteel confer all along with you as her adviser
in reference to the management of the business?
A. My impression is that nothing important was done in the
matter without consulting me. When she required money she came to
Q. So that she took an active part in the matter herself?
A. She took an active part in it; as much as any lady would who
trusted in her husband and confided in his good intentions.
Q. You say that you said to Mrs. Bonesteel that she ought to
have half; who did you suppose at that time was to have this right
for Brooklyn? Who was to have the other half?
A. I was asked to buy an interest in it, and refused to give
$100 for the whole of it. I had a doubt whether it was worth $100.
I was well aware of the difficulties of introducing matters of this
kind into a city like Brooklyn.
Q. You say that you said that Mrs. Bonesteel, you thought, ought
to have half. Who was to have the other half?
A. Mr. Taylor owned the whole. My argument was this to Mr.
Bonesteel: "Mr. Taylor owns the whole; by your industry you may
possibly work up something; if you do, it is fair that be should
give your wife a half interest."
Q. Then you expected that Mr. Taylor and Mrs. Bonesteel would go
A. I presumed that Mr. Taylor would sell out if he could, and as
quick as he could.
Q. How many conversations did you have with Mr. Taylor, and to
A. Two conversations perhaps. We talked on various subjects. I
told him I believed it was a good pavement, but I doubted whether
there was any money to be made in it. I told him I was willing to
advocate it, and I did advocate it. I gave instructions to the
editor of the Brooklyn Union to get all the information he could on
the subject, and to advocate it as strongly as the facts would
Q. Was there anything ever said by you, or in your presence,
relative to this interest being transferred to Mr. Bonesteel?
Page 83 U. S. 22
A. Not a word?
Q. Or to Mrs. Bonesteel, in preference to being transferred to
A. It was distinctly understood that Mr. Bonesteel was a
bankrupt, and it would be of no use to put it in his name, and
if it was transferred at all, I understood that Mr. Taylor gave it
to Mrs. Bonesteel as he would a silver cup to her child.
Mr. Chittenden had laid the pavement in front of
his own house, as described, and after it was advocated in the
one-half the license for Brooklyn was sold
largely through the efforts of Mr. Bonesteel (acting, as his wife
testified, as her agent), to Messrs. Page, Kidder & Co., for
$10,000; and by the same instrument of conveyance by which this was
done the other half
was transferred to Mrs. Bonesteel
Bonesteel, the husband, testified that he considered that the
transfer was thus made to her, in consequence of what he had told
Taylor about taking up his time away from business that he was
carrying on as his wife's agent, and with her money; more
especially since by his not attending to her business, he let the
right reason for selling pass, and so caused a loss to his wife of
several thousand dollars.
How a half
came now to be transferred to Mrs. Bonesteel
instead of a third,
which Taylor by that part of his
testimony already quoted, stated that he meant originally to give
her, was thus explained or sought to be by himself.
When so good a sale as the one to Page, Kidder & Co. for
$10,000 had been made, Bonesteel, it seemed, had urged upon Taylor
that he ought to be content with such a good sum of money, and give
the remaining half to him or his wife. Taylor knew that Bonesteel
had failed; and in regard to the whole matter stated thus:
"I said to Mr. Bonesteel when he insisted upon my giving the
interest between the third and the half, that I wanted to keep it
myself, and should not let his wife have it, but upon his urging
matters I told him that I would not give it to him, but to his
wife, as I did the other, for he was in debt, and if I did, his
creditors would get it, and that I had nothing to give them.
Page 83 U. S. 23
I had not previously conveyed the one-half to his wife, but had
made up my mind to give it to her as promised, and therefore
considered it as given. He claimed that it was through Chittenden's
influence that I sold the half of Brooklyn for what I got, and I
thought it was, and I conveyed it. . . . I would not have conveyed
the half if I had not thought thus of Mr. Chittenden's influence. I
thought his influence of great importance, as he was rich and a
prominent man in Brooklyn."
Page, Kidder & Co., being thus owners of one-half the
licenses, and Mrs. Bonesteel holding the other half, they two --
Bonesteel, the husband, acting for her, and as she testified as her
agent -- organized under the general law of New York, the Nicolson
Pavement Company of Brooklyn; and transferring each their half of
the license to the company received in return stock in its capital,
this capital being fixed in the charter at $500,000.
As the result proved, Bonesteel was not "always"
This particular project, at least, proved a good one. Mrs.
Bonesteel soon sold to a certain W. Smith & Co. one-half of her
stock (a quarter of the capital) for $10,000, receiving the
purchase money and using it as her own; she left 356 shares in the
company as working capital; sold 44 other shares for $2,000, and
used the money; gave her husband 5 shares, enough to enable him to
become a trustee and president of the company, which he now was, at
a salary of $4,000, and had 1,145 shares, charged to be worth
$30,000, and impliedly admitted to be worth about $10,000,
remaining in her own name.
It was these 1,145 shares which her husband's assignee in
bankruptcy, by the bill filed against him and her, now sought to
recover for his
The bill set forth debts to the amount of $30,000, and assets,
one worthless note; charged that the one-half interest vested in
Mrs. Bonesteel was in truth conveyed to her in consideration of her
husband's services, in negotiating and selling the other half; that
the stock was therefore in fact the property of her husband, the
now bankrupt. It charged further that since the organization of the
Page 83 U. S. 24
had participated in its management, and had no other business;
that many very profitable contracts had been since made with the
city Brooklyn for paving &c. The bill prayed an account and
transfer of the stock to the complainant, the assignee.
Both husband and wife answered, each denying every material
allegation in the bill, her answer specially averring, that when
the Nicolson pavement was brought forward, her husband was acting
with her knowledge and approval as her agent, with money owned by
her, advanced to her by her father, and with other sums used in
support of the family and advanced by her, to be charged on any
distribution of his property at his death as advances; that her
husband continued to act as her agent in the matter of the
pavement; that she had laid out large sums of her own money in
advancing and protecting her interests in the company; and setting
up generally a history such as the reader can readily infer from
the case as already stated.
The reader will thus perceive that the question was really one
of evidence on the facts, and one where the evidence was pretty
much one way.
The court below dismissed the bill, and from that decree it was
that the present appeal was taken.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Assignees of the estate of the debtor, in a proceeding in
bankruptcy, may be chosen by the creditors, or if they make no
choice, at their first meeting, the judge, or, in case there is no
opposing interest, the register, may make the appointment, subject
to the approval of the judge. [Footnote 1
] Section fourteen also provides that as soon as
an assignee is appointed and qualified, the judge, or where there
is no opposing interest, the register, shall, by an instrument
under his hand,
Page 83 U. S. 25
assign and convey to the assignee all the estate, real and
personal, of the bankrupt, and that the title to all such estate,
with the deeds, books, and papers of the bankrupt relating thereto,
shall, by operation of law, vest in such assignee. Such
assignments, it was foreseen, might give rise to controversies, and
the second section of the act, in view of that contingency,
provides that circuit courts shall have concurrent jurisdiction
with the district courts, of the same district, of all suits at law
or in equity which may or shall be brought, by the assignee in
bankruptcy, against any person claiming an adverse interest, or by
such person against such assignee, touching any property or rights
of property of said bankrupt, transferable to or vested in such
Voorhees, the complainant, is the assignee in bankruptcy of the
first-named respondent, and he alleges in the bill of complaint
that the schedule of debts, filed by the bankrupt, shows that he
owed debts to an amount exceeding thirty thousand dollars; that the
schedule exhibits no assets except a certain note believed to be
worthless; that the other respondent is the wife of the bankrupt;
that she has standing in her name, upon the books of the Nicolson
Pavement Company, a corporation organized under the general laws of
the State of New York, eleven hundred and forty-five shares of the
capital stock of said company, of the par value of one hundred and
fourteen thousand five hundred dollars, and that she holds stock
certificates of the said company for the said shares, which are
believed to be of a value exceeding thirty thousand dollars. Apart
from those matters the complainant also alleges that he, as such
assignee, has received the required instrument, duly executed,
assigning and conveying to him all the estate, real and personal,
of the bankrupt, and that the said stock, as he believes, is in
fact and truth the property of the bankrupt, and as such that it
should have been included in the inventory of his property, and
that it should be applied to the payment of the debts due to his
creditors. All of said shares, it is admitted,
Page 83 U. S. 26
are standing in the name of the wife of the bankrupt, but the
complainant alleges that the facts and circumstances under which
the title was acquired, as confirmed by the conduct of the
respondents since that time, affords satisfactory evidence that the
property of the shares is in the bankrupt, and he states what the
facts and circumstances attending the acquisition were, as he is
informed and believes, with great fullness and particularity.
Appended to that statement are eleven interrogatories to the
respondents, designed to elicit evidence to establish the truth of
the alleged circumstances.
Service was made and the respondents appeared and filed separate
answers. Among other things, the last-named respondent admits that
she is the wife of the bankrupt, that the shares mentioned in the
bill are standing in her name upon the books of the pavement
company, and that she holds the stock certificates therefor, but
she alleges that the value of the stock is less than one-third of
the sum alleged in the bill. On the other hand she denies that the
stock is or ever was the property of the bankrupt, or that he ever
had any interest therein, or that the shares should have been
included in his inventory, or be applied to the payment of the
debts due to his creditors, and she denies that the circumstances
under which she became possessed of the stock are correctly set
forth in the bill, and each and every allegation in that behalf, so
far as the same are different from, or inconsistent with, the
statement as set forth in her answer. What she alleges is, that
prior to that time she was engaged in the dry goods business, her
husband acting as her agent and attorney in fact in carrying on the
business; that the business was conducted in her name and for her
account, upon capital furnished to her by her father; that he made
advances to her exceeding twenty thousand dollars, which she
employed in carrying on that business or expended in paying the
expenses of their family; that the assignee of the patent described
in the bill desired to secure her services and influence, and
through her the influence of her friends, in the interest of that
improvement, and proposed if she
Page 83 U. S. 27
would render such services and procure the aid and influence of
her friends for the same purpose that he would give her a one-half
interest and right in his assignment or license to lay such
pavement in that city, and would also give her husband employment
in promoting the enterprise and accomplishing the undertaking; that
she accepted the proposition and rendered the promised service in
all proper ways in her power, and that the other contracting party,
in consideration thereof, conveyed a one-half interest in the
enterprise to her as he had proposed, and that such conveyance was
made and received in good faith and without any intent of
defrauding the creditors of the bankrupt; that none of the money,
assets, or property of the bankrupt was used to procure such
conveyance, nor is the same in any way represented in the shares of
the capital stock of the pavement company now held and owned by the
respondent. Suffice it to say, without reproducing the further
details of her answer, that she claims and avers that she is
legally and equitably entitled to hold, and that she does hold the
shares in question as her separate and individual estate.
Substantially the same defenses are set up in the answer of the
other respondent. He admits that the first-named respondent is his
wife, that the stock stands in her name, and that she holds the
stock certificates; but he denies that the stock is or ever was his
property; that he has or ever had any interest in the same, or that
it should have been included in his inventory, or that it should be
applied to the payment of his debts as alleged in the bill.
Concurring with the other respondent, he also denies that the
circumstances under which she acquired the shares are such as are
alleged in the bill, and avers that the shares mentioned are the
individual and separate property of his wife, as alleged in her
Proofs were taken on both sides, and the court having heard the
parties, entered a decree for the respondents, dismissing the bill
of complaint, and the complainant appealed to this Court.
Before proceeding to examine the errors assigned it becomes
Page 83 U. S. 28
necessary to make some further reference to the circumstances of
the transaction, in order that the questions presented for decision
may be fully understood. Both parties agree that the title to the
shares in question came from the owner of the license, granted by
the patentee of the pavement invention, to lay that pavement in the
City of Brooklyn, and the pleadings and proofs show that the
bankrupt, acting as the agent of his wife, negotiated a sale to the
firm therein mentioned of one-half of the right for the sum of ten
thousand dollars, and that the owner of that license, in
consideration of those services and the services in the same behalf
rendered by the wife, agreed to assign the other half of the
license to the wife, who is the present holder of the shares.
Pursuant to that agreement the owner of the license, on the seventh
of December, 1866, made an assignment of the whole license,
conveying one-half to the last-named respondent, and the other half
to the firm by whom it had previously been purchased; and it
appears that the sale and transfer were ratified by the patentee on
the tenth of May following. By this arrangement, the last-named
respondent became the owner of one-half of the license interest,
but she subsequently sold to William Smith & Co. one-half of
her interest so acquired for the sum of ten thousand dollars, and
received the consideration to her own use, and expended the money
for the support of herself and family.
All the parties interested came together on the fifth of
November, subsequent to the execution of the confirmatory license
by the patentee, and organized the pavement company, and in
consideration of the transfer of that license to the company, the
several parties received certificates in due form for their
respective proportions of the same, the last-named respondent
receiving eleven hundred and fifty shares of the stock, being
one-fourth, less four hundred shares reserved for the working
capital of the corporation. Forty-four of the reserved shares were
subsequently transferred to the same respondent, and the proofs
show that she sold the same as her own property and appropriated
the avails to
Page 83 U. S. 29
pay her family expenses. Five of the shares allotted to her she
gave to her husband that he might be qualified to act as a trustee
in the company, leaving the eleven hundred and forty-five shares
standing in her name.
It is claimed by the assignee that the half-interest in the
license right was transferred to the wife of the bankrupt at a time
when he was insolvent, in consideration of the services rendered by
the bankrupt, and that the avails belonged to his creditors, and
that the ownership vested in the wife is simply a cover and a
fraud. Accusations of fraud may well be dismissed, as nothing of
the kind is alleged in the bill of complaint, and it is well
settled law that affirmative relief will not be granted in equity
upon the ground of fraud unless it be made a distinct allegation in
the bill, so that it may be put in issue by the pleadings.
Suppose, however, the rule was otherwise, and that the
complainant may prove fraud, and be entitled to relief upon that
ground, even if he has not alleged anything of the kind, still the
result must be the same, as he has not introduced any sufficient
proof to establish the charge or to warrant the court in adopting
that theory, even if the charge was made in the bill. Instead of
that, the theory of the bill is that the half-interest in the
pavement license was conveyed to the wife in trust for her husband,
and that the shares in question are now held by her to his use, as
representing to that extent the one-half interest of the pavement
license, which, as the complainant alleges, was purchased for the
benefit of the bankrupt.
Confessedly the claim in that view is distinctly alleged in the
bill, but the difficulty which the complainant has to encounter in
attempting to support that theory is that every material allegation
of the bill in that behalf is distinctly denied in each of the
answers, and that the proofs, instead
Page 83 U. S. 30
of being sufficient to overcome the answers, afford satisfactory
grounds for holding that the theory of the respondents is
Courts of equity cannot decree against such denials in the
answer of the respondent, on the testimony of a single witness.
Where the denial is distinct the rule is universal that the
complainant under such circumstances must have two witnesses, or
one witness and corroborative circumstances, or he is not entitled
to relief, as he cannot prevail if the balance of proof be not in
his favor, and he must have circumstances in his favor in addition
to his single witness in order to turn the balance. [Footnote 3
Evidence is entirely wanting to show that the holder of the
shares in dispute, or her grantor, or her husband, ever intended or
supposed that the conveyance of the one-half interest in the
license was made to the wife in trust for her husband. Taken as a
whole, the proofs, instead of supporting that theory, show very
satisfactorily that the property was conveyed to the holder of the
shares, in pursuance of a prior agreement between her and her
grantor that she should have such an interest as her own, and that
it was received by her without any suggestion from any source that
the title was in any manner qualified, or that it was not to be her
own separate property. [Footnote
] Confirmation of that view is derived from the conduct and
declarations of all the parties, during the negotiations and at the
time of the transfer. Throughout, she always treated the property
as her own, and the husband constantly acquiesced in that claim.
She sold a part of the interest and received the purchase money,
and disposed of it as her own, and when the pavement company was
organized, she joined with the others interested in the enterprise,
and transferred her remaining interest to the company and became a
stockholder, accepting the eleven hundred and fifty shares as her
proportion of the stock of be divided at that time among the
shareholders. All agreed
Page 83 U. S. 31
in treating her as the owner of a quarter interest in the
license, and they assigned the shares to her as her separate
property, and the evidence shows that she has always dealt with the
interest in the license and in the stock as her own.
Attempt is made in argument to show that the conveyance of the
one-half interest in the pavement license was made, in part at
least, in consideration of the services of the bankrupt, and it
must be conceded that some of the proofs tend strongly to support
that theory, but the answer to the suggestion made by the
respondents, deduced from the same proofs, is satisfactory and
conclusive. Those same proofs also show that in rendering those
services the bankrupt was acting as the agent and attorney in fact
of his wife, that for some time previously he had been engaged in
transacting her business, using the money furnished to her by her
father, and that the respondent in rendering the services which it
is urged constituted a part of the consideration for the sale of
the half interest in the pavement license, he was acting in her
behalf and to promote her interest.
Under the laws of New York, a married woman may manage her
separate property, through the agency of her husband, without
subjecting it to the claims of his creditors, and it is held that
she is entitled to the profits of a mercantile business, conducted
by the husband in her name, if the capital is furnished by her and
he has no interest but that of a mere agent. [Footnote 5
] Where the husband has no interest in
the business, it is also held that the application of a portion of
the income to the support of the husband will not impair the title
of the wife to the property. [Footnote 6
] Married women, at common law, could take title
to real or personal property by conveyance from any person except
the husband, but where no trust was created her personal property
vested absolutely in her husband when reduced to his possession,
and he became possessed of her chattels real in her right with
Page 83 U. S. 32
power to alien them it his pleasure during her life, and if he
survived her, they became his absolute property. Statutes such as
those above referred to are intended to divest the title of the
husband, as such, during coverture and to enable the wife to take
the absolute title as though she were unmarried. [Footnote 7
] Laws of the kind have the effect
to modify so far the antecedent disabilities incident to the
conjugal relation as to secure the wife in the beneficial enjoyment
of the new interests she is permitted by law to acquire, and it is
expressly held that she is at liberty to avail herself of the
agency of her husband as if they had not been united in marriage.
] Those laws vest in
the wife the legal title to the rents, issues, and profits of her
real estate as against the husband and his creditors, and it is
held that the husband cannot, as formerly, acquire title to such
property in virtue of his marital rights. Consequently it is held
that where the legal title to property is in the wife, as against
her husband it cannot be seized to satisfy his debts without proof
that in the given case her title is merely colorable and fraudulent
as against his creditors, which is decisive of this case, as
nothing of the kind was either alleged in the bill or established
by any sufficient evidence. [Footnote 9
Apply that rule to the case and it is clear that the decision of
the circuit court is correct, and the decree is accordingly
14 Stat. at Large 522.
2 Black 508; Moore v.
19 How. 69; Beaubien
23 How. 190; Magniac v.
15 How. 281; Same Case,
Jr., 209; Eyre v. Potter,
15 How. 42; Fisher v. Boody,
1 Curtis 206.
Clark's Ex'r v. Van
9 Cranch 160; Hughes
6 Wheat. 468; Delano v. Winsor,
1 Cliff. 505.
Voorhees v. Bonesteel,
7 Blatch. 498.
Abbey v. Deyo,
44 Barb. 381.
Buckley v. Wells,
33 N.Y. 520; Sessions Acts 1848, 307;
1849, 528; id.
Draper v. Stouvenel,
35 N.Y. 512; Kelso v.
52 Barb. 127.
Owen v. Cawley,
36 N.Y. 600.
Gage v. Dauchy,
34 N.Y. 293; Webster v.
33 Vt. 457.