GARDNER, appellant, and GARDNER and others, respondents.

A feme covert may contract a debt in regard to her separate estate, and may even become the debtor of her husband, for money borrowed of him to improve such estate; and payment of the debt thus contracted will be enforced in equity as a lien upon the estate, unless by the terms of the donation the feme be prohibited from charging the estate.

A debt thus contracted by the wife, may be discharged by a donatio causa mortis, as by the declaration of the husband that the money was her's, and by destroying the bond, the evidence of the debt.

If from the circumstances of the case there be reason to doubt the competency of the husband to dispose of his property, on the question coming before the chancellor, it seems a feigned issue should be awarded to try the question.

The incidental power of the court of chancery to award an issue is not af fected by the provisions of the revised statutes on the subject of feigned issues in certain specified cases.

Long continued inebriety, although resulting in occasional insanity, does not require proof of a lucid interval to give validity to the acts of the drunkard, as is required where general insanity is proved on a question of devisavit vel non. Where the indulgence has produced permanent derangement of mind, it would be otherwise, it seems.

The act of a party addicted to intemperance, in disposing of his property, will not be invalidated on the ground of undue influence exercised over him by the inmates of his family, where the influence arises from kind offices springing from attachment or affection; to vitiate the act, the influence must be shown to have arisen from threats, force or coercion, destroying free-agency, and the boon to have been obtained by such coercion, or by importunity that could not be resisted-producing compliance for the sake of peace.

APPEAL from chancery. The appellant CHARLOTTE GARDNER who was the administratrix with the will annexed of the estate of her late husband JAMES GARDNER, was cited to render an account before the surrogate of the city of New York of her doings as administratrix, upon the application of a nephew of the testator to whom and four brothers and one sister of the applicant, a moiety of the personal estate of the testator was given by the will. When Mrs. Gardner rendered her accounts to the surrogate she stated to him, that she had borrowed $2000 of her husband to complete or erect buildings on property at Williamsburgh, deeded to her or her trustee for her use, having

Gardner v. Gardner.

No mention of this trans

made several purchases of lots. action was made in the accounts, nor in the objections to the same, filed by the now respondents. Auditors were appointed, and on the hearing before them, it appeared in evidence, that Mrs. Gardner received an income from England which was secured to herself, and that she was the owner of real estate at Williamsburgh, holding it as her separate estate. The sum of $2000 was lent to her in 1827, for which sum she executed her bond. Her husband was very intemperate and had been so since 1815. In 1825 he became insane and was confined in the lunatic asylum, where, with a short interval, he remained until the spring of 1826; was taken there again in 1828, and early in 1829 came away entirely restored. In July, 1825 he made his will. About the first day of March, 1829, four months previous to his death, Gardner sent to a Mr. Williams with whom the bond of his wife had been deposited, and on obtaining it, told her that the money was her's and put the bond in the fire. The evidence as to the sending for and destruction of the bond rested solely upon the testimony of Mrs. Milnor, a daughter of Mrs. Gardner, by a previous marriage, who was dependent upon her mother for support. She further testified that upon a previous occasion, after Gardner left the asylum the last time, she was present when Gardner sent for Mr. Williams to his bed side, and told him if any thing happened to him, to destroy those papers. She also testified that on the day the bond was sent for, and previously to its being sent for, Gardner requested his wife to destroy the papers if any thing should happen to him. This she declined to do, and the papers were then sent for. On the part of the now respondents it was shewn that a petition was presented to the chancellor for the removal of James Gardner, from an appointment, which he held as guardian of the estate of an infant, on the ground of his insanity; that on the fifth day of March, 1839, the chancellor referred the petition to a master for inquiry into the facts; that on the eighteenth, nineteenth and twentieth day of the same month, proofs were taken by the master, and that on the coming in of the

Gardner v. Gardner.

removed from his trust as

master's report, Gardner was guardian. On this evidence the auditors made a report charging Mrs. Gardner with the $2000. On the coming in of the report, the counsel for the administratrix insisted before the surrogate, that no foundation was laid in the objections filed to the accounts, to support the charge of the $2000 against her; no issue was offered to which proofs could be applied, and no claim presented specifically in that respect, which the surrogate by a decree could reject or allow. The objection was overruled and the report confirmed by the surrogate, whose decree was affirmed on appeal by the CHANCELLOR, 7 Paige, 512. The administratrix thereupon appealed to this court, where the case was argued by

M. T. Reynolds, for the appellant.

J. Rhoades & S. Stevens, for the respondents.

After advisement, the following opinion was delivered :—

By CowEN, J. The main objection here, is, that Mrs. Gardner was not chargeable with the $2000 which she had borrowed from her husband. First: It is said she was not fiable, because the loan was by the husband to his wife. It is admitted to be void at law, upon the ground that the wife cannot contract a debt to any one, and especially to her husband. This rule is universal at law, and it is the general rule of a court of chancery, which follows the law. Simpson v. Simpson, 4 Dana, 140. Chancery, however, has raised an exception: not an exception in terms, but yet a substantial one. If the wife holds an estate separate from, and independent of her husband, as she may do in equity, chancery considers her in respest to her power over this estate a feme sole, 2 Kent's Comm. 164, 3d ed.; and, although she is still incapable of charging herself at law, and equally incapable in equity of charging herself personally with debts, yet I think the better opinion is that separate debts contracted by her expressly on her own account, shall in all cases, be considered an appointment or

Gardner v. Gardner.

appropriation for the benefit of the creditor, as to so much of her separate estate as is sufficient to pay the debt, if she be not disabled to charge it by the terms of the donation. Chancery, then, considers the debt as a valid charge pro tanto, or will at least enforce its collection specifically, by fixing it as a lean upon the separate estate. 2 Story's Eq. 627, 1399 to 1401, inclusive and the cases there cited. 2 Kent's Comm. 164, 3d ed. id. 166. I see no objection in this theory to a debt being contracted by the wife directly to the husband. Such a power seems to have been recognized in Heatly v. Thomas, 15 Ves. 596, wherein it appeared that the wife had given her husband a bond of indemnity. The case is equally within the principle, whether we consider her acting as feme sole, or under a power of appointment in favor of her husband.

In answer to this view of the question, the argument of policy is insisted on. It is said that the principle will give an opening to the exercise of undue influence by the husband, in procuring this equitable mortgage. That may be so. Such an influence is perhaps too often exerted in various indirect legal methods of acquiring the wife's estate. But the power of restraint lies with the donor. If he give the estate to the wife unshackled as to the mode of alienation, he avows himself willing to repose upon her discretion; and run the risk of her husband's influence. If the donor be distrustful of either, his business is to interpose such guards in respect to the occasions and the forms of alienation as shall obviate the supposed danger. When the wife holds her separate estate untrammelled by any such precautionary control, it is right that such estate should be appropriated to the payment of her separate debts. And this is especially so where, as in the case at bar, they are contracted for the benefit of her separate estate. I say as in the case at bar. Such was Mrs. Gardner's object in obtaining the loan, as she admitted before the surrogate. She had, no doubt, stated the object to her husband, viz. the improving of her estate at Williamsburgh; and I, for one, cannot agree with her learned counsel in saying that her declaration must be presumed to have been falsified by her conVOL. XXII.

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duct; that she probably deceived her husband, even admitting the truth of her declaration, is to be regarded as a matter of mere abstract moral obligation. And above all, if the counsel be correct in supposing that an application of this money to the proposed improvement were essential to secure its reimbursement, I think the chancellor was bound to presume that she had not misapplied it, at least until the contrary was shown. It was no more than saying she shall be presumed to have acted honestly. If the declaration of her purpose be considered as made to the surrogate only, a thing not very probable, it was in no way qualified with a suggestion that the purpose had not been fulfilled. I feel quite clear, therefore, that a valid loan was established by the proof, chargeable on the appellant's trust estate, which it became her duty as administratrix to account for, if it were collected or collectable intermediate her appointment as administratrix and her accounting, unless the debt was discharged by her husband.

Secondly. It is said, that she is not to be made liable inasmuch as it was not shown that the debt had been collected, or might have been collected with ordinary diligence. Direct evidence of actual collection is not pretended; and it is insisted that the debt was not even shown to have been separate. Mrs. Gardner herself admitted that the $2000 was loaned with a view to employ it in the erection of buildings at Williamsburgh, on her property which lay there; and this did not constitute the whole of her separate estate. I think it is not too much to presume that the property which the $2000 was destined to improve, bore such a reasonable proportion in value, as to call for the improvement; and that, in whatever mode the sum may have been invested for her use, the whole, investment and all, would form a fund perfectly adequate to the reimbursement of the money. That is but presuming an exercise of due discretion in the improvement of her estate. Ordinary prudence is to be presumed till the contrary be shown; and in this case, the contrary was not even pretended. Ordinary diligence in collecting, and therefore actual collection, might also have been inferred by the auditors, and Mrs. Gardner be holden