Hanly & Co. vs. Downing et al. per Husband and Wife, 240; Bro. Ch. C., 16; 16 B. Mon., 376; 13 B. Mon., 381; 15 lb., 327; Rev. Stat., chap. 24, secs. 20, 21, 22; Clancy on Rights, 282; Rev. Stat., chap 47, art. 4, sec. 17, G. B. KINKEAD, for appellees, cited Rev. Stat., chap. 47, art. 4, sec. 17; 18 B. Mon, 306; Ib., 386; 17 Ib., 59; 16 lb., 487; Rev. Stat., chap. 47, art. 2, sec. 2. JUDGE BULLITT DELIVERED THE OPINION OF THE COURT: In 1857, Mrs. Downing, a married woman, being the owner of land not her separate estate, joined her husband in selling it, and made provision in the conveyance that the proceeds should be invested in other property for her separate use. A part of the proceeds were accordingly invested in slaves, which were conveyed to a trustee for her separate use. Hanly & Co., afterward sold goods to her, as they allege, and as, in our opinion, the evidence shows, upon the faith and credit of her separate estate; and brought this suit to subject said slaves to the payment of the account thus created. They are entitled to relief, unless it is prohibited by the statute which declares, that, "if real or personal estate be hereafter conveyed or devised for the separate use of a married woman, or for that of an unmarried woman, to the exclusion of any husband she may thereafter have, she shall not alienate such estate, with or without the consent of any husband she may have; but may do so when it is a gift, with the consent of the donor or his personal representative." (R. S., chap. 47, art. 4, sec. 17) The same section declares, that "such estates, heretofore created, shall not be sold or encumbered but by order of a court of equity." In the case of Daniel, &c. vs. Robinson, (18 B. Mon., 301,) it was held that a separate estate, created before the statute, cannot be charged in equity for any debt contracted by a married woman. And in the case of Stacker vs. Whitlock, (3 Met., 244,) it was decided that the same rule applies to separate estates created since the statute. But where it was agreed, by an ante-nuptial contract between husband and wife, that she might hold her estate for her separate use, the statute was held not to apply. (Stites vs. Mountjoy's Adm'r. vs. Pearce et al. Bryan, Mss. opin., 1858, cited in 2 St. R. S., 32.) And it is contended, upon the authority of that case, that the statute is inapplicable here, because the slaves were purchased by the wife with the proceeds of her land. We concede that, as contended by counsel, it can make no difference whether the property is secured to the wife's separate use by ante-nuptial or post-nuptial settlement. The material difference between this case and that of Stites vs. Bryan consists in the form of the settlement. That case was not within the terms of the statute, because the estate had not been conveyed or devised for the separate use of the wife; her separate right was secured by her husband's covenant; and a strained construction would have been required to bring the case within the statute. But here a strained construction would be required to take the case out of the statute. In the case of Stuart vs. Wilder (17, B. Mon., 55.) it was held that the statute prohibited the sale by a married woman of her separate estate, purchased with the proceeds of her inheritance, although the conveyance to her gave her power to dispose of it as if she were an unmar ried woman. The judgment dismissing the petition is affirmed. CASE 11-PETITION EQUITY-DECEMBER 13. Mountjoy's Adm'r, &c. vs. Pearce et al, 4me 97 106 244 APPEAL FROM HICKMAN EQUITY AND CRIMINAL COURT. 1. It is error to render judgment, even by default, in favor of heirs and' distributees against the administrator of an intestate for the amount in his hands, subject to distribution, without requiring a refunding bond from the distributees. (4 Bibb, 266; 7 Mon., 643; 3 J. J. Mar., 684; Civil Code, sec. 471.) 2. Section 471 of the Civil Code is substantially a re-enactment of the statute of 1797, section 50, as construed by the court of appeals in the above cited cases. 7 Mountjoy's Adm'r. vs. Pearce et al. 3. In a suit by heirs and distributees of an intestate against the administrator and his sureties in the administration bond, brought to recover the amount in the hands of the administrator subject to distribution, the petition must set out the terms or substance of the bond alleged to have been executed by them-otherwise it will not show a cause of action against the sureties. (14 B. Mon., 86; Ib., 255.) WORTHINGTON & JOHNSTON, for appellants, cited Civil Code, sec. 471; 14 B. Mon., 83; Ib., 222; 1 Met., 430; Civil Code, sec. 123 and notes; 15 B. Mon., 443; 5 J. J. Mar., 665; 1 Litt., 100; 11 B. Mon., 31; Chitty on Contracts, 31; 4 Bibb, 266; 1 Litt., 294; 5 Mon., 525; 7 Mon., 643; 3 J. J. Mar., 687; 4 lb., 446; 1 Stat. Law, 668; Rev. Stat., 336; 6 Dana, 313; Wassen vs. Wilson, Mss. opin., January, 1859; 1 J. J. Mar., 330; 11 B. Mon., 94; 12 Ib., 321; 2 Bibb, 292; 4 Bibb, 241. SIMPSON & SCOTT, on same side, cited 13 B. Mon., 466; Goddard vs. Maddock, Mss. opin., Dec., 1854; Civil Code, sec. 118, sub-div., 3; 14 B. Mon., 85, 86; lb., 254, 255; 7 Mon., 643; 3 J. J. Mar., 687; 4 lb., 446, 152; 3 Dana, 181. JUDGE BULLITT DELIVERED THE OPINION OF THE COURT: Pearce and others, heirs and distributees of Elizabeth Mountjoy, obtained a judgment against Joseph Kennedy, her administrator, and against Lillard and Bugg, his sureties in the administration bond, for $1,473.22, alleged to be in the hands of the administrator and subject to distribution, from which this appeal was taken. No answer was filed by either of the defendants, and the judgment was rendered by default. It was erroneous to render judgment against the administrator without requiring a refunding bond from the distributees. This was well settled under the 50th section of the act of 1797, (1 S. L., 668,) which declared that, "no distribution shall be made of the intestate's estate until nine months after his death; nor shall an administrator be compelled to make distribution at any time until bond and security be given by the person entitled to distribution, to refund due proportions of any debts or demands which may afterwards appear against the intestate." (Prewitt's ex'r. vs. Prewitt's heirs, 4 Bibb, 266; White &c. vs. Clarke, 7 Mon., 643; Shirley vs. Mitchell, 3 J. J. Knott's Adm'r. vs. Hogan. Mar., 684. We need not consider the effect of section 11, art. 2, chap. 37, of the Revised Statutes, which declares that, "Before an administrator shall make distribution, each distributee shall, if required, give an obligation, with good surety, to refund," &c.; because it is provided in the Code that, in proceedings of this character, "the court shall require the distributee or legatee, before receiving his distributive share or legacy, to execute bond, with good surety, to the commonwealth, conditioned to pay his proportion, not exceeding the amount received by him, of any debt which may appear against the estate," &c., (section 471.) This was substantially a re-enactment of the statute of 1797, section 50, as construed in the above cited cases. The judgment against the sureties was erroneous for another reason. The petition showed a cause of action against the administrator irrespective of the bond, but it stated no cause of action against the sureties, because it did not state the terms or substance of the bond alleged to have been executed by them. (Hill vs. Barret, 14 B. Mon., 86; Collins vs. Blackburn, Id., 254.) The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. 1. Where two writings are executed at the same time, with reference to each othe and to the same subject matter, they constitute but one agreement, and are to be construed as if written on the same piece of paper. 2. Gifts causa mortis, are in general conditional, like legacies, but it is absolutely essential to them that they be made by the donor in his last illness, or in contemplation or expectation of death. 114 637 e114 638 e114 639, 4me 99 132 382 Mountjoy's Adm'r. vs. Pearce et al. 3. In a suit by heirs and distributees of an intestate against the administrator and his sureties in the administration bond, brought to recover the amount in the hands of the administrator subject to distribution, the petition must set out the terms or substance of the bond alleged to have been executed by them-otherwise it will not show a cause of action against the sureties. (14 B. Mon., 86; Ib., 255.) WORTHINGTON & JOHNSTON, for appellants, cited Civil Code, sec. 471; 14 B. Mon., 83; Ib., 222; 1 Met., 430; Civil Code, sec. 123 and notes; 15 B. Mon., 443; 5 J. J. Mar., 665; 1 Litt., 100; 11 B. Mon., 31; Chitty on Contracts, 31; 4 Bibb, 266; 1 Litt., 294; 5 Mon., 525; 7 Mon., 643; 3 J. J. Mar., 687; 4 lb., 446; 1 Stat. Law, 668; Rev. Stat., 336; 6 Dana, 313; Wassen vs. Wilson, Mss. opin., January, 1859; 1 J. J. Mar., 330; 11 B. Mon., 94; 12 Ib., 321; 2 Bibb, 292; 4 Bibb, 241. SIMPSON & SCOTT, on same side, cited 13 B. Mon., 466; Goddard vs. Maddock, Mss. opin., Dec., 1854; Civil Code, sec. 118, sub-div., 3; 14 B. Mon., 85, 86; lb., 254, 255; 7 Mon., 643; 3 J. J. Mar., 687; 4 lb., 446, 152; 3 Dana, 181. JUDGE BULLITT DELIVERED THE OPINION OF THE COURT: Pearce and others, heirs and distributees of Elizabeth Mountjoy, obtained a judgment against Joseph Kennedy, her administrator, and against Lillard and Bugg, his sureties in the administration bond, for $1,473.22, alleged to be in the hands of the administrator and subject to distribution, from which this appeal was taken. No answer was filed by either of the defendants, and the judgment was rendered by default. It was erroneous to render judgment against the administrator without requiring a refunding bond from the distributees. This was well settled under the 50th section of the act of 1797, (1 S. L., 668,) which declared that, "no distribution shall be made of the intestate's estate until nine months after his death; nor shall an administrator be compelled to make distribution at any time until bond and security be given by the person entitled to distribution, to refund due proportions of any debts or demands which may afterwards appear against the intestate." (Prewitt's ex'r. vs. Prewitt's heirs, 4 Bibb, 266 ; White &c. vs. Clarke, 7 Mon., 643; Shirley vs. Mitchell, 3 J. J. |