C. S. Hutchison v. E. H. Mitchell, 39 Tex. 487

Walker, J. It is admitted that the property levied' .on to satisfy an execution against James Mitchell, and'. claimed by the appellee, grows out of the corpus of property (land, negroes, etc.) deeded to William E. Douglass by James Mitchell, on the fifteenth day of November, 1858, for the sole and separate use of Mrs. E. H. Mitchell.

We can find nothing in any of the constitutions or laws of the State or Republic which would prevent a married man from declaring an express trust in favor of his wife, and giving her the exclusive use and enjoyment of all the rents, issues and profits of the trust estate, provided there is no fraud in the transaction against creditors. And the only question presented for our decision in this case is, does the deed to Douglass referred to create such an estate ? Douglass held the legal title to the property, for the use of Mrs. Mitchell. The language of the trust is full and.explicit.

It is, “For the separate use, occupation and enjoyment of the said Elizabeth H. Mitchell, free from the intervention or control of all other persons whomsoever.” Had Mrs. Mitchell held this property in her own name . and right, there can be no doubt but that its accumulations would have belonged to the community estate of herself and husband, and might have been subject to the execution levied upon it. We are aware that this question is not free from some embarrassment. The remark of Chief Justice Hemphill, in Cartwright v.

Hollis, 5 Texas, 164, “that the distinction between the separate property of the wife and property limited to her sole and separate use is not recognized by our laws ; the property denominated separate is regarded as limited to her sole and separate use, and necessarily excludes the common law rights of the husband in such, property, by virtue of the coverture;” and similar remarks in Williams v.

Walker, 11 Texas, 329, have left .the profession in some doubt as to the rights of married women over their separate property; but we do not think it was ever the intention of this court to hold, that aside from any statutory estate, or the laws governing such estates, a married woman might have created in her an equitable estate, and have an exclusive right to the enjoyment of such estate, entirely discharged of all right and interest of the husband. We had no statute in Texas in force in 1858 which prevented a married woman from taking just such an equitable estate as Mrs.

Mitchell took under the deed from James Mitchell to W. E. Douglass, or which would prevent her receiving and appropriating to her own use the issues arid profits of her equitable estate. In Magee v. White, 23 Texas, the court, in a very able opinion by Judge Bell, reviews the former cases, and, as we think, not without some just criticism ; and in this opinion the separate equitable estate of the wife is fully recognized, and the rules of the common law applied to it. And we think the rules of the common law, and no other law, apply to the estate of Mrs. Mitchell, under the trust deed to Douglass.

The deed appears to have been made at a time when the husband was free from debt, and in such circumstances as utterly to repel the idea of fraud in the establishment of the trust. We think the case has been rightly disposed of in the- ' District Court, and we therefore affirm the judgment. Affirmed.