Koontz v. Nabb

Goldsbobough, J., delivered the opinion of this court: We are satisfied, from an examination of this case, that the decree appealed from is sustained by the reasons assigned in the opinion of the judge of the Circuit court, and therefore the decree ought to be affirmed. In addition, however, to the reasons assigned by the learned judge below, we would state that we have carefully examined the decisions in England and in this country, and have reached the conclusion that a married woman having a separate estate, cannot affect that separate estate, unless the obligation sought to be enforced presents upon its face some evidence of the intent to charge the estate, or there be evidence aliunde tending to prove such intent. This question was, on many occasions, brought to the consideration of the Chancery court in England, from an early period, in its equity jurisprudence, and numerous decisions were made in conformity with our view of the law. Nor was that view disturbed in England, until the case of Hulme vs. Tenants. 1 Brown's Ch.

Cases, 16, which occurred in 1778, followed by the cases of Whistler vs. Newman, 4 Vesey, Jr., 130, and Mores vs. Huish, 5 Vesey, Jr., 692, decided by Lord Loughborough. These cases are succeeded by many others, after Lord Elden became Chancellor, in which he restored the law to its first and ancient principle. In the case of Parkes vs. White, 11 Vesey, Jr., 209, he reviewed all the cases, and strongly intimated that the decision in Whistler vs. Newman was in opposition to all the authorities for a'century. It is true that this ⁵⁵⁵ doctrine has undergone much change by the decisions recently shade by Lord Brougham and Lord Cottenham; (see Lewin on Trusts and Trustees, page 516,) yet we are justified in disregarding these decisions, by resorting to the rule laid down in the case of The Mayor and City Council of Baltimore vs. Williams, 6 Md. Rep., 264 , in which this court said, (referring to the construction of the Statute of Elizabeth, Ch. 4,) the