By the court,
The efendants, Mary Ann Seaman, Charlotte Maria McKenzie, William Henry Burch, Emily Jane French, George Frederick Burch, and Matilda Augusta Burch, were not, in respect to the premises in question, the heirs of Mrs. Burdock, but of William Burch. Therefore the statute, by which the heirs and devisees of every person who has made any covenant or agreement are held answerable upon such covenant or agreement, to the extent of the lands descended or devised to them, does not *486apply to them, and the mere fact that they collected rent up to the time of final partition cannot be construed into an adoption and ratification by them of the covenant for quiet enjoyment contained in plaintiff’s lease. They were remaindermen, and between them and the plaintiff as tenant of the life tenant no tenure and no relation existed. When the partition of the premises took place the rights of all parties, including the plaintiff, were judicially determined; the judgment provided for a partition of the premises between such of the parties as had any rights therein, and according to such rights, but at the same time adjudged that the plaintiff had no right or interest whatever, that his lease became void and inoperative upon the decease of the tenant for life, and from that time constituted no further lien or incumbrance upon the premises. This judgment must be deemed a complete and final determination of the rights of the plaintiff as against the remaindermen.
if or can this action be maintained against the heirs against whom a dismissal of the complaint took place, upon the ground of the receipts of assets, as next of kin, under 2 Rev. Stat., 451, See., 23. Whatever assets may be deemed to have been received by them, belonged to the estate of William Burch, deceased, and not the estate of Mary Ann Burdock. There was no evidence to show that any assets belonging to her estate were ever paid or distributed to these persons, as next of kin or legatees, by her executor, so as to entitle the plaintiff, as a creditor, to institute an action against them.
Again, the same defendants could not be proceeded against upon the theory that they were the heirs of Mrs. Burdock, until after the expiration of three years from the time of the granting of letters testamentary to her executor, for the statute expressly • prohibits it (3 R. S., 5th ed. p., 197, § 64); and even then they could be held liable only for a debt of the testatrix, upon proof either that the deceased left no personal assets within this state to be administered, or that *487the personal assets of the deceased were not sufficient to pay and discharge the same; or that, after due proceedings before the surrogate, and at law, the plaintiff as a creditor, had been unable to collect such debt, or some part thereof, from the personal representatives of the deceased, or from her next of kin, or legatees (2 Rev, Stat., 452, § 33, as amended by laws of 1859, p., 293); and in such case the heirs could not be joined as defendants in the action with the executor. (11 Barb., 271 ; 3 Comst.. 261). In any aspect of the case the complaint was properly dismissed against the heirs.
Whether the verdict, as directed, was right as to the remaining defendant, depends upon the question whether Mrs. Burdock, as a married woman, had the legal capacity to enter into the covenant, which forms the foundation for this action, at the time and in the manner she did. The covenant is a personal one, which a married woman could not make at common law, and, as it was made in 1857, the question will have to be determined under the acts of 1848 and 1849, passed for the more effectual protection of the property of married women. These acts enable a married woman to hold her real and personal propeity, and the rents, issues, and profits thereof as her sole and separate property, as if she were a single female, and also to take by inheritance, or by gift, grant, devise, or bequest, from any person other than her husband, and hold to her sole and separate use, and convey, and devise real and personal property, and any interest or estate therein, and the rents, issues and profits thereof, in the same manner, and with the like effect, as if she were unmarried, &c. And it has been held that under said acts a married woman may acquire title to real and personal property from any person other than her husband, in almost any manner; that she may do so by buying the same for cash or upon her credit; that she may purchase a stock in trade, a business and the good will belonging thereto, for cash or upon her credit; that in all these cases, if done *488 bona fide, and not for the purpose of covering up her husband’s property, and if .the vendor will take the risk of payment, the transfer and her title is perfect, and that no interest in any such property passes to her husband, whether she had antecedently any separate estate or not; that after having thus obtained the property, she may manage it either personally or by the agency of her husband or any other person, and hold the profits and increase to her separate use, (Sherman agt. Elder, 24 N. Y., 381; Knapp agt. Smith, 27 N. Y., 277; James agt. Taylor, 43 Barb., 530; Buckley agt. Wells, 33 N. Y., 518; overruling S. C., 42 Barb., 569); and may recover for work, labor and services done and performed and materials furnished by her in course of such business, and since 1851 may site alone under § 114 of the Code for her separate property, without joining her husband with her. (Darby agt. Callahan, 16 N. Y., 71).
But on the other hand it has been settled that under the acts referred to, a married woman cannot contract with or convey to her husband, (White agt. Wager, 25 N. Y., 328 ; Winans agt. Peebles, 32 N. Y., 423; Savage agt. O’Neil, 42 Barb., 374); that she has no power to make contracts generally, which are binding upon her personally according to the general rules of law (Yale agt. Dederer, 18 N. Y., 265; Draper agt. Stouvenel, 35 N. Y., 507); although a court of equity may enforce payment, out of her separate estate, of a debt contracted by her for her own benefit and on the credit of her ' separate estate. (Ledeliey agt. Powers 39 Barb., 555).
When the case of Yale agt. Dederer, came before the court of appeals for the second time (22 N. Y., 450,) Judge Selden, in delivering the opinion of the court, held, that in order to create a charge upon the separate estate of a married woman, her intention to do so must be declared in the very contract which is the foundation of the charge, or the consideration must be obtained for the direct benefit of *489the estate itself, and that accordingly, where a married woman signed a promissory note as mere surety for her husband, though it was her .intention to charge her separate estate, such intention did not take effect. The learned j udge showed that the foundation of- the power of a feme covert to charge her separate estate rested solely upon her incidental power tp dispose of that estate; .that therefore, no debt can be a charge which is not connected by agreement, either express or implied, with the estate; that if contracted for the direct benefit of the estate itself, it would of course become a lien, upon a well founded presumption that the parties so intended and in analogy to the doctrine of equitable mortgages for purchase money; but that no other kind of debt can be thus charged without some affirmative act of the wife evincing that intention. And in his concluding remarks Judge Selden points out that the legislature did not, even by the passage of the act of 1860, remove the common law disability of married women to bind themselves by their contraeos at large; that in order to be obligatory upon them or their estates under that act, their contracts must relate entirely, either to their separate property or to the particular trade or business in which they are engaged.
The principles decided in the case of Yale agt. Dederer, (supra,) have been reaffirmed by the court of appeals in White agt. McNett, (33 N. Y., 371); compare also Brown agt, Hermann, (14 Abb., 394); White agt. Story, (43 Barb., 124); Manchester agt. Sahler, (47 Barb., 155).
Thus, it seems to be settled beyond question that the acts of 1848 and 1849 did not confer any greater authority upon femes covert, to inter into contracts generally, than previously existed, and did not remove their legal incapacity to contract debts; also that those acts did not authorize a married woman to charge her separate estate for a debt which did not arise in connection with it, and which is not for her own benefit or the benefit of her estate. The *490authorities relied upon by the plaintiff in this action do not cast a doubt upon the correctness' of these" propositions. The decision in Winans agt. Peebles, (31 Barb., 371); has been reversed by the court of appeals. (32 N. Y., 423). Goelet agt. Gori, (31 Barb., 314,) is an authority against the plaintiff. In Ballin agt. Dillaye, (37 N. Y., 35,) the separate estate of a married woman, as a whole, was held chargeable in equity with the payment of a deficiency arising upon a bond and mortgage given by her, for the reason that she had thereby derived in point of fact, not only a benefit in respect to the premises described in the mortgage, but an additional substantial benefit for her entire separate estate, namely, a release of thirty-two other lots, &c.
And even the decision of the supreme court at general term, in the case of Kolls agt. DeLeyer, (41 Barb., 211,) although frequently misunderstood, will, on a careful examination, be found to be in entire harmony with the propositions hereinbefore laid down as conclusively settled. The following facts appeared by the complaint in the last named case: The defendant, as a married woman and possessed of a separate estate in lands in her own right, in 1858, conveyed out of the same a lot of ground to the plaintiff by the usual deed of conveyance, with covenants of seisin, and that the same were free from incumbrances of every description. Her husband united in the deed so far as to convey his interest, if any he had, but he did not join in the covenants of warranty. At the time of making this conveyance, the lot was, however, subject to the incumbrance of certain unpaid taxes, which were a lien thereon, and which the plaintiff subsequently had to pay. The action was brought to recover the amount so paid as being a charge on the wife’s remaining separate estate. It consequently was a suit in equity. The defendant demurred, and the question raised by the demurrer was whether the complaint stated facts sufficient upon which the separate estate of the defendant could be held liable in equity. The *491court held that it did. Therefore, however broad the language may be, which the learned justice who delivered the opinion of the court on that occasion, used, the correctness of the decision itself cannot be questioned.
The case at bar is an ordinary action at law, The covenant relied upon did not create a debt at the time, but only a contingent liability, which cannot be charged against Mrs. Burdock’s estate without express words to that effect; even if it had been so charged, the liability would not attach except upon proof that it was for the benefit of Mrs. Burdock or her separate estate, and in such case it could be enforced in equity only. No error, therefore, has been committed by directing a verdict for the defendant Chamberlain, as sole surviving executor of the will of Mary Ann Burdock, deceased.
Plaintiffs exceptions should be overruled and judgment absolute rendered upon the verdict in favor of the defendant Chamberlain, as executor, and in favor of the other defendants upon the non-suit, with costs.
Barbour, Ch. J.—I concur.
Monell, J.—I concur.