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of trustees was, in all arrangements of this sort, whether made before or after marriage, indispensable for the protection of the wife's rights and interests. In other words, it was deemed absolutely necessary that the property, of which the wife was to have the separate and exclusive use, should be vested in trustees for her benefit, and that the agreement of the husband should be made with such trustees, or, at least, with persons capable of contracting with him for her benefit. But although, in strict propriety, that should always be done, and it is usually done in regular and well considered settlements, yet it has for more than a century been established in courts of equity, that the intervention of trustees is not indispensable, and that whenever real or personal property is given, or devised, or settled upon a married woman, either before or after marriage, for her separate and exclusive use, without the intervention of trustees, the intention of the parties shall be effectuated in equity, and the wife's interest protected against the marital rights and claims of her husband and of his creditors also. 2 Story Eq. 600, 601, sec. 1380.

In Sexton v. Wheaton, 8 Wheat. 229, where the validity of a postnuptial voluntary settlement made by a husband upon his wife was in question, MARSHALL, C. J., says:

"It would seem to be a consequence of that absolute power which a man posseses over his own property that he may make any disposition of it which does not interfere with the existing rights of others, and such disposition of it, if it be fair and real, will be valid." Speaking of the case before him, he says: "The appellant contends that the house and lot contained in this deed constituted the bulk of Joseph Wheaton's estate, and that the conveyance ought on that account to be deemed fraudulent. * * * If a man entirely unincumbered has a right to make a voluntary settlement of a part of his estate, it is difficult to say how much of it he may settle."

The doctrine is thus stated by the Supreme Court of the United States in Wallingsford v. Allen, 10 Pet. 583:

"Agreements between husband and wife, during coverture,

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for the transfer from him of property directly to the latter, are undoubtedly void at law. Equity examines with great caution before it will confirm them. But it does sustain them when a clear and satisfactory case is made out that the property is to be applied to the separate use of the wife. Where the consideration of the transfer is a separate interest of the wife, yielded up by her for the husband's benefit, or that of their family, or which has been appropriated by him to his uses; where the husband is in a situation to make a gift of property to the wife, and distinctly separates it from the mass of his property for her use either case equity will sustain, though no trustee has been interposed to hold for the wife's use. In More v. Freeman, Bunb. 205, it was determined that articles of agreement between husband and wife are binding in equity, without the intervention of a trustee. Other cases may be cited to the same purpose. In regard to grants from the husband to the wife, an examination of the cases in the books will show that when they have not been sustained in equity, it has been on account of some feature in them impeaching their fairness and certainty, as that they were not in the nature of a provision for the wife, or when they interfered with the rights of a creditor, or when the property given or granted had not been distinctly separated from the mass of the husband's property."

In Putnam v. Bicknell, 18 Wis. 333, it is said: "Though void at law, an absolute conveyance of real or personal prop: erty from the husband directly to his wife is good in equity, and sufficient, so far as the form is concerned, to divest the husband of such property, and to vest the same in the wife, as against all persons save the creditors of the husband, especially when the transfer is fairly made, upon a meritorious or valuable consideration."

In Huber v. Huber, 10 Ohio, 371, it was held "that a husband may, during his life, settle a separate estate upon his wife, that is, he may (there being no claims of creditors to forbid it) transfer property to his wife in which she never had any beneficial interest, and which will enure to her as her

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separate estate. This may be done even without the intervention of a trustee. A court of equity would, if necessary, appoint one to execute the intentions of the husband."

In Simmons v. McElwain, 26 Barb. 419, it is said: "It is true that the deed from the defendant to his wife was void in law, for a husband cannot, during coverture, make a grant or conveyance to his wife. But such a grant will be upheld in equity, when it is necessary to prevent injustice."

In Wilder v. Brooks, 10 Minn. 50, it is said: "And had the conveyance been made to any person other than his wife, and even for a merely nominal consideration, we see no reason why it would not have been completely unassailable. If these premises are sound, it follows that if the instrument was effectual between Andrew M. Torbet and his wife to pass the property, it was good as to the world, and vice versa.

Again it is said: "Contracts of all kinds, between husband and wife, are objected to, not only because they are inconsistent with the common law doctrine that the parties are one person in law, but because they introduce the disturbing influences of bargain and sale into the marriage relation, and induce a separation rather than a unity of interests. But certainly neither in reason nor on principle can it be contended that so far as this objection is concerned, there is any difference between the cases of a conveyance by a husband to trustees for the use of a wife or to a third person who conveys to the wife, or to the wife directly. Each of these would have precisely the same effect, in conferring upon the wife property and interest independent of and separate from her husband. And the tendency of modern legislation, as well of judicial interpretation, is to improve and liberalize the marital relation by recognizing and upholding the reasonable rights of both parties to the matrimonial contract."

The law is thus stated by the Supreme Court of Mass., in the case of Whitten v. Whitten, 3 Cush. 191: "The like presumption exists in the case of purchase in the name of his wife, and of securities taken in her name. Indeed, Mr. Justice STORY says, that the presumption is stronger in the

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case of a wife, than in that of a child. It is, therefore, an established doctrine, that when the husband pays for land conveyed to the wife, there is no resulting trust for the husband; but the purchase will be regarded and presumed to be an advancement and provision for the wife. This is fully supported by various cases, as well as by the best writers."

MASON, J., in the case of Stockett v. Holliday, 9 Md. 480, says: "The case of Bowie v. Stonestreet, 6 Md. Rep. 418, conclusively settles that a contract, which can be enforced in a court of equity, may be entered into between a husband and wife for the transfer of property from the former to the latter, for a bona fide and valuable consideration."

The Supreme Court of Vermont, in the case of Barron v, Barron, 24 Vt. 375, states the law thus: "And as a general rule, whenever a contract would be good at law, when made with trustees for the wife, that contract will be sustained in equity, when made with each other without the intervention of trustees. It is upon this principle that in many cases the husband will be held as trustee of the wife, and the wife entitled to the privileges belonging to a creditor of the husband."

Though a stranger's conveyance of property, or covenant to pay money to a married woman, or to a trustee for her, in order to give her a separate use, must contain words indicating such intention, it seems to be well settled that such words are unnecessary in the husband's conveyance or covenant. The law upon this subject is well stated by the Supreme Court of Conn., in Deming v. Williams, 26 Conn. 226, where it is said: "Now had such transfers been made by a parent into the name of a child, the child would acquire the interest as an advancement, such intent being inferred by law from the relationship of the parties. The same is true in case of a wife, where the husband purchases land and has the deed made directly to her, there being in the case no creditors or fraud upon any other party. The law attaches to absolute deeds and transfers a full alienation of the entire interest or property, so far as the alienation is permitted by the principles of law or equity. Such are all gifts or deeds

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by husbands to wives of real or personal estate found in the books, from the case of Slanning v. Style (decided in 1734 and found in 3 P. Wms. 334), to the present time, and they are exceedingly numerous. They sustain the principle, that so far as the form and substance of the gift or alienation arc important, that which would be good if made to a third person is good in a court of equity if made by the husband to his wife."

We have had urged upon our attention and consideration the cases of White v. Wager, 25 N. Y. 328, and Winans v. Peebles, 32 N. Y. 423. We have given these cases a careful consideration, and are of the opinion that they are not in conflict with the views we have expressed. In both of those cases the question involved was the validity of conveyances from wives to their husbands. We have already seen that a married woman in this State is under a disability so far as the alienation of her land is concerned. Her conveyance is absolutely void unless her husband joins with her. Such is the law in New York. None of the disabilities imposed upon married women have attached to the condition of a married man, who was as free to receive the title to property and to dispose of it after marriage as before, with the exceptions that he could not receive a deed directly from his wife, because she could not convey without his joining, and he could not join in a conveyance to himself, and that he had no power to dispose of or in any manner affect the inchoate right of his wife in and to his real estate. As to the world in general, the estate of marriage does not affect his ability to acquire title to or dispose of his property just as he might have done if he had not been married. These cases correctly held that a deed direct from a wife to her husband was void at law, and would not be sustained in equity, for the reason that this disability was imposed upon married women to protect them from the influence of their husbands.

The adjudicated cases in England are in entire accord with the decisions in this county. We refer to the following English and American cases on this subject, besides those here