of the said Edward S., her said intended husband, without hav ing any issue living at the time of her death, then in trust, that the said Bartholomew Busby, his executors, administrators, or assigns, will transfer and deliver over to the said Edward S. all the property and estate herein contained and conveyed, free from any trust."

The property from and after the marriage was to be held for the "joint use" of the husband and wife, but so as "not to be subject in any manner to the debts, contracts, or engagements" of the husband. The effect of the words "joint use was to create an estate in the husband, and also an estate in the wife, and to make these two estates joint; the effect of the other words was to fix in the wife the estate created in her. and to prevent it from being by the marriage taken out of her and passed into the husband. The whole effect of both sets of words, taken together, was to make her and her husband hold as they would have held if they had not been husband and wife.

The words "not to be subject in any manner to the debts. contracts, or engagements" of the husband can operate so far as the estate created in the wife is concerned; although it may be true that they cannot operate so far as the estate in the husband is concerned. And if they are to have any operation whatever, it must be an operation by which the estate in the wife is to be hers, and not his, although it may be that she may have to hold it jointly with him; in other words, it must be an operation by which, though she is to have, not an estate in severalty as contradistinguished from the estate in joint tenancy, yet by which she is to have an estate in severalty as contradistinguished from the ordinary estate in the wife, which by marriage merges in the husband. This is the least operation the words can have, if they are to have any. This operation, then, we think, the words do have.

The practical result is, that as to say a half-interest in the property the wife took what is equivalent to a separate estate. Did she bind this interest by indorsing her husband's notes ? Whether when the wife has property settled to her separate use generally, without restriction as to alienation, but with no grant of the power of alienation, she can dispose of the property to the use of her husband, is a vexed question: Methodist Episcopal Church v. Jacques, 3 Johns. Ch. 77. I incline to think that she cannot. A married woman has not capacity to con. tract, and therefore the contracts of a married woman are void. That this is the general principle of the common law, nobody,

I believe, disputes. Can her having separate property make any difference in this respect? However, I hold myself open on this question. But when the property is not settled to the wife's separate use generally, but is settled to her use subject to a restriction against alienation, then there is no question, I believe, but that she is, to the extent of the restriction, debarred from the power of alienation.

Is there any such restriction, then, in this settlement? We think there is. The words "not to be subject in any manner to the debts, contracts, or engagements" of the husband have, as we think, the effect, not only to prevent the estate created in the wife from passing by the marriage into the husband, but also the effect to deprive her of the power of subjecting that estate in any manner to the debts of the husband. To this extent, at least, we think they restrain her power of disposing of this estate. But if they restrain her from subjecting the property in any manner to the debts of her husband, they restrain her from subjecting it to those debts by the manner of guaranteeing or indorsing those debts. And that is the manner which she adopted in this case; she indorsed his notes. True, she as indorser represents, it may be said, an independent contract of her own; but then, if this estate of hers pays that contract, it thereby pays the other contract, the debt of the husband, so far as the present holders of the debt are concerned; and thus, in that case, her estate will in one "manner have been "subject to the debts" of her husband.

We think, then, that, by virtue of these same words, her power over her estate was so restricted that she could not by indorsing her husband's notes subject the estate to the payment of those notes. The result thus far is, that we think that the wife had by the deed what was equivalent to a separate estate; but that this estate was so restricted that she could not, and therefore did not, bind it by her indorsements made on her husband's notes; and consequently, the result thus far is, that there is, in our opinion, no equity in the bill as to this estate in the wife. This is the result as it respects Judge Lumpkin and myself.

Judge McDonald thinks, I believe, that the words create no separate property in the wife; but then he also thinks that she has an equity which entitles her to as much as she can get by the result at which we, the other two judges, have arrived. Hence he does not see fit to dissent from that result.

Say, then, that the wife and the husband take each an

equal interest in the property; and, for convenience' sake, let us assume this interest to be one half. Is the half in the husband such an interest that it could not be reached by these creditors, without prejudice to the other interest in the property? We think that it is. It is difficult to see how there could be any sale of the property, or of any interest in it, to satisfy these debts, without prejudice to the interest of the wife and that of the issue of the marriage. The better way is, that so much of the income as the husband is entitled to be paid, under the decree of a court of equity, to the creditors, instead of to him. In this view of the case, we agree with the court below-restricting the view to the share of the property which, we say, the husband takes.

There remains but one other question. These creditors had not reduced their debts to judgment when they commenced the suit. But they say that Kempton is wholly insolvent, except as to his interest under the trust deed. This, we think, was reason enough to justify a suit before the debts had been reduced to judgment. In such a case, getting judgment would be a waste of time, labor, and money, without any compensation.

Judgment affirmed.

CONVEYANCE TO HUSBAND AND WIFE GENERALLY: See Martin v. Jackson 67 Am. Dec. 489; Ketchum v. Walsworth, 68 Id. 49, and notes.

HUSBAND'S INTEREST IN LAND SETTLED TO JOINT USE of himself and wife: See Sanderson v. Jones, 63 Am. Dec. 217; Moss v. McCall, 46 Id. 272; Sale v. Saunders, 57 Id. 157, and notes.

HUSBAND'S ESTATE IN WIFE'S LAND GENERALLY: See Bowie v. Stonestreet, 61 Am. Dec. 318; Sanderson v. Jones, 63 Id. 217; Bason v. Holt, 64 Id. 585; Junction R. R. Co. v. Harris, 68 Id. 618, and notes.

SEPARATE ESTATE IN WIFE, WHAT WORDS WILL CREATE: See Sanderson v. Jones, 63 Am. Dec. 217; Bason v. Holt, 64 Id. 585, and notes.

POWER OF FEME COVERT TO ALIENATE OR CHARGE SEPARATE ESTATE: See Burch v. Breckenridge, 63 Am. Dec. 553; Baker v. Gregory, 65 Id. 366; Dobbin v. Hubbard, Id. 425, and notes; as to the wife's power to charge her separate estate for her husband's debt, see Hollis v. Francois, 51 Id. 760. In Clark v. Valentine, 41 Ga. 147, the principal case is distinguished as not restricting the general power of a feme covert to bind her separate estate for her husband's debt where there is no restriction in the deed creating the estate, because the deed itself in the principal case limited the power. In the same case, at page 151, McCay, J., dissenting, cites the principal case to the point that the wife cannot even by her own contract bind, for her husband's debt, property settled to her "sole use," "not to be subject to the debts of the husband."

WIFE'S SEPARATE ESTATE, LIABILITY OF, FOR HUSBAND'S DEBTS, GENER ALLY: See Beason v. Holt, 64 Am. Dec. 585, and notes.

JUDGMENT AND EXECUTION UNSATISFIED, NECESSITY OF, TO MAINTENANCE OF CREDITOR'S BILL: See Brittain v. Quiet, 62 Am. Dec. 202; Heyneman v. Dannenberg, 65 Id. 519, and notes.

THE PRINCIPAL CASE IS CITED to the point that the income may be reached in equity and appropriated to the use of creditor, where property is settled to the use of the debtor for life with remainder to such uses as he shall by will appoint, "free from all liability for any of his debts or contracts."

BUSH v. LINDSEY.

[24 GEORGIA, 245.]

COURT OF ORDINARY IS COURT OF GENERAL JURISDICTION in Georgia. FACTS CONFERRING JURISDICTION ON COURT OF ORDINARY TO APPOINT GUARDIAN NEED NOT APPEAR on the face of the proceedings to render an exemplification of such appointment competent evidence; and such exemplification need not show that the ward resided or had property in the county, but that will be presumed in aid of the jurisdiction. RECORD OF ADMINISTRATOR'S APPOINTMENT HAVING BEEN DESTROYED BY FIRE, evidence of an order directing him to sell land as administrator, and of his return thereon, and evidence of an order removing him from the administration, are competent to prove his appointment, so as to render his deed as administrator admissible in evidence.

Having proved the guar

EJECTMENT. The defendant claimed the land under a sale of the same by one Pate as guardian of the female lessor, Eliza Bush, then Eliza Hays, and a subsequent sale and conveyance of the same by Stewart, as administrator of the purchaser, at the guardian's sale. An exemplification of Pate's appointment as guardian by the court of ordinary of Talbot county was introduced by the defendant, against the plaintiffs' objection, the ground of which appears from the opinion. The testimony of Mrs. Pate, the mother of the ward, as respects the matter of residence, also appears from the opinion. dian's sale to one Britt, the defendant introduced in evidence a deed to himself from Stewart, as administrator of Britt, after showing, as preliminary thereto, that the court-house and records had been burned, and the record of Stewart's appointment as administrator had been destroyed, and introducing the order of sale to Stewart, as administrator for the land in question, the returns of Stewart thereon, and a subsequent order removing him as administrator. The plaintiffs objected to the deed, because the appointment of Stewart was not proved, but the objection was overruled. The case was brought up on the plaintiffs' exceptions to the rulings in question.

Ingram and Johnson, for the plaintiffs in error.

Cooper and Dougherty, contra.

By Court, BENNING, J. Was the court right in receiving as evidence the exemplification from the court of ordinary of Talbot county, showing the appointment of Pate as guardian of Hays, and an order authorizing him to sell the land?

The objection to the exemplification was, that it did not show upon its face that the ward lived in Talbot county, or had property therein, at the time of the appointment or of the order, and con sequently that it did not show upon its face anything to give juris diction to that court to make the appointment and pass the order. It is sufficient if the court had jurisdiction; it is not necessary that what gave it jurisdiction should appear on the face of its proceedings. The court of ordinary is, and has always been, a court of general jurisdiction.

Mrs. Pate says that she "lived in Jones county when the draw was given in for, the ward, her child, then being only three months old." In this it is implied that she had since ceased to live there, and had come to live elsewhere. There is nothing to show that this other place was not Talbot county. It does not appear that Pate, her husband, the person appointed the guardian, ever lived in Jones; it does not appear where he at any time lived. It may well be, therefore, that he and Mrs. Pate and the child were all living in Talbot county at the time when his appointment of guardian was made, and at the time when the order of sale was passed.

But the court being a court of general jurisdiction, it is necessary to presume, in the absence of proof to the contrary, that at these times the ward did reside in Talbot county, or did have property in that county; in short, to presume that something existed which gave the court jurisdiction. The court then was right in receiving the exemplification.

We think that the evidence was quite sufficient to show that Stewart had been appointed the administrator of Britt's estate, and therefore that the court was right in allowing the deed made by Stewart as such administrator to go to the jury. The court-house having been burned, it was fortunate that the evidence left was so much as it was.

Judgment affirmed.

WHETHER COURT OF ORDINARY, ORPHANS' COURT, OR PROBATE COUR? IS COURT OF GENERAL JURISDICTION or not, see Tucker v. Harris, 53 Am. Dec. 488; Grimes' Estate v. Norris, 65 Id. 545; Morrow v. Weed, 66 Id. 122,