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4 This case is criticized by Mr. Binney in The Leaders of the Old Bar of Philadelphia, Law Association Centennial, p. 114, commented on by Penrose, J., in Gamble's Est., 13 Phila. 198 (1878). Mr. Binney said, "It has taken more than one Act of Assembly to patch the hole in the law that was made by Lancaster v. Dolan, and it is not well patched yet." As that case is still the law in Pennsylvania on nearly all the points involved, one is at a loss to know what the Acts of Assembly are. Mr. Binney also said, supra p. 113, that the decision "swept away every vestige of authority from a married woman during coverture to alienate or pledge her separate trust estate," which, it is apprehended, is a rather broad understanding of the decision.

5 In the following cases the Supreme Court has passed on the question of the powers of a feme covert cestui que trust as to her equitable separate estate, and reached the result indicated. The learned reader will observe that in many of these cases, where the question of the power of the cestui que trust was raised, the remarks of the court were dicta, as the attempted disposition was of the legal title, to which the married woman as cestui que trust, even without the sole and separate use clause, would be incapacitated. The question of the power of the feme covert cestui que trust to dispose of her equitable interest cannot arise until she has made an attempted disposition thereof. The feme covert cestui que trust cannot convey: Rogers v. Smith, 4 Pa. 93 (1846); Haines v. Ellis, 24 Pa. 253 (1855), semble; McMullin v. Beatty, 56 Pa. 389 (1867), dicta; Jones's, App., 57 Pa. 369 (1868), dicta; Shonk v. Brown, 61 Pa. 320 (1869), dicta; Springer v. Arundel, 64 Pa. 218 (1870), dicta; Ringe v. Kellner, 99 Pa. 460 (1882); MacConnell v. Lindsay, 131 Pa. 476 (1889),

dicta; Scott v. Bryan, 194 Pa. 41 (1899), semble; Shields v. McAuley, 205 Pa. 45 (1903). In Lewis v. Bryce, 187 Pa. 362 (1898), the proposed conveyance was of an interest in fee, but the cestui que trust had only a life estate. This appears to be the main ground of the decision. Where she does convey during the existence of the trust, which conveyance is void, and after the death of her husband, the trust having terminated, accepts payment of part of the purchase money, such acceptance works on ratification and redelivery of the deed, and she is estopped from asserting title against the grantee: Jourdan v. Dean, 175 Pa. 599 (1896); s. c. Miller v. Dean, 199 Pa. 637 (1901).

As to power to will: A married woman had no power to make a will at common law. This right was first conferred in Pennsylvania by Act of April 11, 1848, §7, P. L. 536, superseded by Act of June 8, 1893, §5, P. L. 344. The power was formerly secured to a married woman by inserting in the settlement a power of appointment under which she could practically make a will of her separate estate. Prior to that act she had no power to make a will, not because of the nature of the equitable estate, but because of her own incapacity. In these cases, prior to the Act of 1848, the question turned on whether the terms of the instrument creating the trust were sufficient to give her a power of appointment; "subject to her order alone," does not give power to will: Stahl v. Crouse, 1 Pa. 111 (1845); Thomas v. Folwell, 2 Whart. 11 (1836). In Asay v. Hoover, 5 Pa. 21 (1846), same settlement as was before the Court in Hoover v. Samaritan Society, 4 Whart. 445 (1839), there was a deed of trust to the separate use of A. for life, with power of appointment by will, and limitations over in default of appointment, with power in A.

to revoke the uses, and then to convey and mortgage. A. revoked, made a mortgage, made a will, and then died. Held, that the will was good and so was the mortgage as the latter did not exhaust the power. The mortgage was an appointment of the fee at law and a full exercise of the power, but as equity considers the mortgage merely as security for the debt, the equity of redemption remained after the execution of the mortgage and consequently a further power of appointment, which she could duly exercise by will, subject to the payment of the mortgage debt.

Since the Act of 1848: No case has been found since the Act of 1848 raising the question of the power of the married woman cestui que trust to will her separate estate, except Steinmetz's Est., 168 Pa. 175 (1895). In that case it was argued that she had power to will where the estate was a fee, because the marriage relation ceased with her death, and the will took effect then, and there was no occasion to prolong the restraint on alienation beyond that time. It was held, however, that the will was void as there was no power to make it expressly conferred. The student will observe that Lancaster v. Dolan did not raise the question of the power of the cestui que trust to will. At that time a married woman could not make a will because of her common law incapacity; such power as she had existed only in equity under the terms of the instrument creating the trust. No case could arise calling for the application of the principle in the case of Lancaster v. Dolan, to the case of a will until after the Act of 1848, when the married woman was given power to make a will. The increase of her common law power should not, on principle, make any difference as to the rule which had theretofore obtained in equity, as to the nature of the estate created by a settlement to her sole and separate use. The practical result is the same, but it is worth while, in the interests of clear thinking, to observe the distinction in the development of the rule

as to the power to will and the rule as to the other powers which she might exercise as to her separate estate. She cannot mortgage: Cochran v. O'Hern, 4 W. & S. 95 (1842); Wilson v. McCullough, 19 Pa. 77 (1852), words of settlement not given, doubtful if there was a sole and separate use; 8. c. McCullough v. Wilson, 21 Pa. 436 (1853); Wright v. Brown, 44 Pa. 224 (1863), probably a mortgage of her own interest; see page 227. In Maurer's App., 86 Pa. 380 (1878), there was a power in the trustee to mortgage and exercise thereof. The cestui que trust, upon a mistaken idea that the trust was revocable, executed a deed of revocation, and then made a mortgage, part of the proceeds of which were used to pay the balance due on the mortgage by the trustee. Held, that to that extent the second mortgage was valid. People's Bank v. Denig, 131 Pa. 241 (1889); Hays v. Leonard, 155 Pa. 474 (1893); Holliday v. Hively, 198 Pa. 335 (1901). She has no power to assent to the revocation of the trust: Twining's App. 97 Pa. 36 (1881). She may not make a marriage settlement thereof: HughesHallett v. Hughes-Hallett, 152 Pa. 590 (1893). She may not assign the income in the hands of the trustee: Shanty's Est., 7 Pa. C.C. 199 (1888); dictum in Dunton's Est., 18 Phila. 145 (1887). Decision contra in Hayes' Est., 32 Pitts. L. J., 375, (1885), may be disregarded as totally opposed to reason and authority, and as a decision of a court of inferior jurisdiction. In Smith v. Broadhead's Executors, 4 Dall. 115 (1792), the court did not decide whether a feme covert under a deed of settlement of a separate use, with power to make a will could, by directing her executors to pay her debts, make her estate liable for a bond executed by her in her lifetime to pay a debt of her husband. She may, however, give or lend the income to her husband as well as to any other person unless restrained by the terms of the trust: Towers v. Hagner, 3 Whart. 48 (1837). And when she has power to mortgage, she may dispose of the proceeds to her

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husband if she chooses; Hoover v. Samaritan Society, 4 Whart. 445 (1839). She may join in an act changing the trustees; Heath v. Knapp, 4 Pa. 228 (1846).

6 Restraints on Alien., 2 ed. (1895), §126. 7 Power to will: The cases prior to the Act of 1848 turning on the extent of the power conferred by the deed have already been noticed. The question now is, does the settlement give her power to do that in equity which she can do at law, whereas, the question formerly was whether the settlement gave her power to do that in equity which she could not do at law. In Drusadow v. Wilde, 63 Pa. 170 (1869), certain premises were conveyed in trust for the sole and separate use of A., her heirs and assigns forever * * and upon the further trust that the said A., or such person as she should appoint, should take and receive the rents, issues and profits thereof forever. A. during the coverture devised the premises by will and died. Held, that she had power to make a will under the above clause. Mr. Justice Sharswood said, at p. 172, "We think that the deed of trust vests in her general power of appointment within the rule laid down in Lanc

*

In

aster v. Dolan, 1 Rawle, 231, and that the will in question was an effectual exercise of that power," the learned judge proceeding upon the theory that as the power was to dispose of the income forever, it necessarily carried the power to dispose of the principal. Dunn's App., 85 Pa. 94 (1877), where the woman and her husband united in a conveyance upon a separate use trust for the wife for life, with power of appointment, it was held that a will made by her six years before she made the deed of trust was not an exercise of the power of appointment. For a case of an express power to will and exercise thereof see Rush v. Lewis, 21 Pa. 72 (1853).

Power to convey: Power to will does not give power to convey; dictum in Rogers v. Smith, 4 Pa. 93 (1846) at 98. Where under the settlement the trustee has power to sell as directed by the cestui que trust a sale by the latter with the joinder of her husband in the manner directed is a good appointment and the trustee will be directed to convey accordingly; McFadden v. Drake, 79 Pa. 473 (1875). In Coryell v. Dunton, 7 Pa. 530 (1848), there was a power in the cestui que trust to revoke and appoint new uses by deed, and it was

8

held that a conveyance by her and her husband, though not referring to the power, passed the estate. For a case of power to appoint by deed and exercise thereof, see Scott v. Bryan, 194 Pa. 41 (1899).

Power to mortgage: Power to execute a deed does not give the power to execute a bond and mortgage; Dorrance v. Scott, 3 Wh. 309 (1838). Direction to the trustee to pay the income to the use, etc., and disposal of the cestui que trust, does not give her power to mortgage the corpus; Cochran v. O'Hern, 4 W. & S. 95 (1842). In Bailey v. Allegheny Nat'l Bank, 104 Pa. 425 (1883), there was a gift in trust "that no one of the husbands, etc. of my children shall have any interest in * * * the property bequeathed, but that the shares of my said children shall belong to them separately and exclusively, whose receipts therefor shall be taken as a full discharge." It was held, without any discussion, that a sole and separate use was created, and that the words quoted gave a married cestui que trust power to mortgage, on the ground, in the court below, that a general power of disposition was given by implication by the use of the words “separately and exclusively," citing Chrisman v. Wagoner, 9 Pa. 473 (1848). The mortgage here was of all her right, title and interest and probably referred to her equitable interest, and therefore squarely raises the point. See remarks of Brown, J., on this case in Holliday v. Hively, 198 Pa. 335 (1901), at 342.

Power to revoke: In the case of Chrisman v. Wagoner, 9 Pa. 473 (1848), there was a power to appoint by will, with a limitation over if the cestui que trust died without having withdrawn and without making an appointment or disposition

thereof, and held that the cestui que trust had power to withdraw the principal of the fund during coverture. In Withington's App., 32 Pa. 419 (1859), real estate was conveyed to the separate use of the wife on the eve of marriage, with power in her to appoint by will if she died before her husband. There was a covenant in the deed, which was signed by her husband, that the husband would not oppose any revocation of the trust by the wife, either by deed or will. Held, that the language of this covenant did not increase the powers previously given to the wife and, therefore, a revocation executed by her by deed in her lifetime was void.

8 In Wallace v. Coston, 9 Watts, 137 (1839), an action was brought against the feme covert to recover for necessaries furnished, as the plaintiff alleged, on the faith of the pledge of her separate equitable estate. While there was a doubt whether she had pledged her separate estate, the court said that she had no power to assign her separate estate since she had no express power under the deed of trust and judgment was given against the plaintiff. It seems, however, that the plaintiff could have recovered anyhow, and the only question was whether he could satisfy his judgment out of the separate estate. See also Crowe v. Lippincott, 38 Pitts. L. J. O. S. 433 (1891).