Most of the states adopt, in the main, the English doctrine of power to charge the sep arate estate, but many jurisdictions follow what is known as the American doctrine— that a married woman, as to her separate estate, is leme sole in so far as the instru ment has expressly conferred on her the power to act as such, and that she is confined to the particular mode of disposition pre scribed in the instrument, if any, and the es tate is not liable for her contracts, bonds, and notes, unless the instrument expressly declares that it shall be charged. It was first established in South Carolina and ad hered to as above stated, by Chancellor Kent. See Lancaster v. Dolan, 1 Rawle (Pa.) 231, 18 Am. Dec. 625; Walker v. Coover, 65 Pa. 430; Metcalf v. Cook, 2 R. I. 355; Litton v. Baldwin, 8 Humph. (Tenn.) 209, 47 Am. Dec. 605 ; Pippen v. Wesson, 74 N. C. 442; Arm strong v. Stovall, 26 Miss. 275. See Kelly, Cont. M. W. 259, n. 5, and a critical annota tion by the same author ; 23 Am. L. Reg. N. S. 321; Stew. H. & W. § 203.
An instrument creating such an estate is excepted from the rule which makes void clauses in restraint of alienation, provided only that the rule against perpetuities is not violated; id. § 204.
Under Statutes. Superimposed upon this complex combination of common-law disabili ty and equitable protection for separate es tate, there is now, both in England and in the United States, a mass of statute law, as to most of which a classification to be relied on is impossible. The course of legislation in the United States has been such as almost entirely to remove the common-law disabili ties of a woman, and to secure to her the management and control of her own property with power to contract concerning it, and also largely to increase both her in dividual rights and liabilities. It has been said that the protection and the disability of marriage have been linked together, and the wife when deprived of the one has been re leased from the other; Cullers v. James, 66 Tex. 494, 1 S. W. 314; but this broad state ment does not seem to express the rule of construction generally adopted; see supra. The first tendency of the married woman's acts was to emancipate her property both from control and from any liability for obli gations naturally springing from the mar riage relation. In this country, however, there has been lately a strong current in the direction of creating and enforcing liability for such debts against both husband and wife.
In all the states and the District of Colum bia the real property of a married woman re mains her separate property, generally free from the control or interference of her hus band or liability for his debts ; and in most of the states her personal property is equally so.
As to the statutory liability of a married woman and her property for necessaries and family expenses and also for her own torts, see infra. The separate property of a mar ried woman is not liable in most states for the debts of the husband, nor bound by judg ment or execution against him.
English legislation has , been much more according to a definite plan, commencing with 20 & 21 Vict. c. 85, which enabled a married woman deserted by or judicially sep arated from her husband to obtain orders of protection against his creditors. The acts of 1870, and 1874 secured to married women several specific property rights, but these acts were repealed and supplied by the act of 1882, under which a married woman could acquire and hold separate property in her own name, and sue and be sued severally, the husband, however, remaining liable for her torts. The purpose of this act was thus stated by Wills, J., to be, not destructive of the "doctrine of the common law by which there was what has been called a unity of person between husband and wife, but to confer in certain specified cases new powers upon the wife, and in others new powers up on the husband, and gives them in certain specified cases new remedies against one an other." 14 Q. B. Div. 835. This act is still the married woman's property law of Eng land. The act of 56 & 57 Vict. c. 63, provid ed that contracts of married women should be deemed as being entered into with respect to and binding her separate property then or thereafter acquired, being limited in its scope. The act of 7 Edw. VII, c. 18, made no general change, but authorized dispositions of trust estates by married women, as if sole, and made provision as to the settlement of married women's property.
For provisions of the English statute -in I detail, see an interesting comparison between English and American legislation on the sub ject, 22 Am. L. Reg. N. S. 761; Brett, L. Cas. Mod. Eq. 96; 1 Brett, Com. ch. 18, at the end of which may be found a list of the English statutes to that date; 7 So. L. Rev. 68; 11 Cent. L. J. 41; 27 id. 279.
While the legislation of England and the United States with respect to married wo men has been mainly in the direction of giv ing to her property interests such a legal status as had been secured to her in equity in spite of her common law footing, there has, at the same time, been secured to her in both countries, by judicial action, emancipa tion of the person to the extent of practically abrogating the common-law rule on that sub ject.