caring for children, and in the preparation of food and clothing, and for the performance of these duties she certainly could not exact any payment from him, and any agreement on his part to compensate her for them is without consideration, and, consequently, nonenforceable, nor, in our judgment, will the courts ordinarily undertake in actions by wives against husbands to determine whether services performed by a wife fall without the limits of her wifely duties, so that she may contract with her husband to be paid therefor: Whitaker v. Whitaker, 52 N. Y. 368; 11 Am. Rep. 711; Blaeckinska v. Howard Mission, 130 N. Y. 497. This question has, however, usually arisen in controversies between the wife and her husband's creditors, and we shall reserve the further consideration of it until we reach that topic.

Third persons other than creditors of either the husband or the wife may seek to avoid an agreement between the husband and the wife respecting her services and respecting property which has accrued to her as the result thereof, as where the wife, with the assent of her husband, either express or implied, has performed services for another for which he has agreed to compensate her, or has obtained property as the result of her services, and she sues for the possession thereof, and the defendant in the action claims that she cannot maintain it, for the reason that the cause of action belongs to the husband only. Conceding a husband to be entitled to the services and earnings of his wife of every nature, there is no doubt that he may, unless his creditors are prejudiced thereby, make gifts to her: Peck v. Brumagin, 31 Cal. 440; 89 Am. Dec. 195; Gill v. Woods, 81 Ill. 64; 25 Am. Rep. 264; Garner v. Garner, Busb. Eq. 1; 57 Am. Dec. 583; Fox v. Jones, 1 W. Va. 205; 91 Am. Dec. 383; and that such gifts may, when perfect, be enforced against third persons. Hence, if a wife, with the consent of her husband, agrees to perform services for another, whether of a domestic nature or not, or whether rendered at her home or not, for which such other agrees to compensate her, as where she cares for a person in his illness, or boards him, or washes for him, or renders any other lawful service whatsoever, and he has agreed to pay her therefor, the assent of the husband to such agreement operates as a waiver of his right to its proceeds and as a gift thereof to the wife, and hence such person or his representative, when sued by her, cannot successfully de fend on the ground that the cause of action, if it exists at all, is one in favor of her husband: Wren v. Wren, 100 Cal. 276; 38 Am. St. Rep. 287: Mason v. Dunbar, 43 Mich. 407; 38 Am. Rep. 201; Jones v. Reed, 12 W. Va. 350; 29 Am. Rep. 455. Therefore, if a woman contracts with the owner of a tract of land to cultivate it on shares, and subsequently, with the consent of her husband, performs her contract, from which a crop results, the landlord cannot resist her claim therefor on the ground that the interest in the crop for which she stipulated belongs to her husband: Meriwether v. Smith, 44 Ga. 541.

The validity of contracts, express or implied, to the effect that a wife shall be compensated for her services, or shall have the profits of a business conducted by her, may be drawn in question in a controversy with creditors who either claim that their interests require

the contract to be observed, or, on the other hand, that it amounts to a gift from the husband to the wife which cannot be sustained as against them. In the first of these classes of cases are involved business transactions of constantly increasing magnitude for which the law has not, up to the present time, made any very careful provision. We refer to those instances in which mercantile and other transactions are conducted by and in the name of a married woman with the assent, or, at least, without the dissent, of her husband, and she acquires property and incurs obligations in the transaction of such business, and when her creditors seek to enforce such obligations, they are met by the claim that the property acquired does not belong to her, but to her husband, and, therefore, is not subject to any writ against her. We have heretofore considered this question and reached the conclusion that under these circumstances the husband must either be regarded as having made a gift of property and business to his wife, or, at least, as estopped from denying that the property and business were hers where such denial would prejudice the rights of creditors whose claims have accrued to them in dealing with her respecting such property and business upon the assumption that they were hers, and that she was entitled to incur obligations payment of which might be enforced therefrom: Partridge v. Stocher, 36 Vt. 108; 84 Am. Dec. 665, and note 673-676; Diefendorf v. Hopkins, 95 Cal. 343; Coughlin v. Ryan, 43 Mo. 99; 97 Am. Dec. 375. Generally, however, the attack upon a transaction by which a wife has been paid something for her personal services, or has invested their proceeds in property, or property has been conveyed to her by her husband in consideration of moneys due for such services, comes from his creditors who contend that the transaction is a scheme devised for the purpose of defrauding them, or, if not so devised, that it is, at least, equivalent to a gift which the husband, under the circumstances, could not make without hindering, delaying, or defrauding them. If the services performed by the wife and for which her husband agreed to pay her were in the nature of ordinary marital or household duties, of course, his agreement to pay for them was not binding upon him because without consideration and his compliance with it must be deemed a mere gift to his wife, not sustainable as against his creditors, except under the same conditions as would permit the sustaining of any other voluntary transfer by him, and therefore his creditors have the right to any property received by her from him in carrying out ais agreement that they have to any other property given by him to her: Stirtzer v. Kee, 146 Ill. 577; Gable v. Columbus etc. Co., 140 Ind. 563; Michigan etc. Co. v. Chapin, 106 Mich. 384; ante, p. 490; Apple v. Ganony, 47 Miss. 189; Reynolds v. Robinson, 64 N. Y. 589; Bucher v. Ream, 68 Pa. St. 421; Campbell v. Bowles, 30 Gratt, 652; Elliott v. Bentley, 17 Wis. 591. Nor is it material that the services were not rendered directly to the husband if they were in performance of duties resting upon him, as, for instance, in the caring for, and nursing of his mother in illness or old age, he expressly agreeing to pay his wife therefor, and carrying out his agreement by conveying

property to her in good faith in satisfaction of his contract with her: Coleman v. Burr, 25 Hun, 239; 93 N. Y. 17; 45 Am. Rep. 160.

If creditors can be said to have any right to the services of their debtor's wife, such right is surely restricted to services of the ordinary character, and if she is permitted to reap the fruits of extraordinary services, though such fruits are paid or turned over to her by her husband, we do not see how the transaction hinders or defrauds his creditors, or can result in prejudice to them. We are aware that there are several cases which maintain the right of a husband to all services actually rendered by his wife, irrespective of their character or any agreement by him with her under which she was induced to render them, and in which relief has therefore been granted to his creditors to the extent of setting aside any conveyances made to her, whether by her husband or others, though the consideration therefor was money earned by her after her marriage in the doing of work which she was under no obligation to perform, as where she assisted her husband in his business: Brittain v. Crowther, 54 Fed. Rep. 295; or washed, or cared for persons not members of her family, or took in boarders, under an agreement with her husband, whether express or implied, that she might have for her own use, or as her separate estate, the proceeds of these labors: Belford v. Crane, 16 N. J. Eq. 265; 84 Am. Dec. 155; Cramer v. Redford, 17 N. J. Eq. 367; 90 Am. Dec. 594; Blaeckinska v. Howard Mission, 130 N. Y. 497; Bailey v. Gardner, 31 W. Va. 94; 13 Am. St. Rep. 847. This proposition appears to us unreasonable. If, as the result of representations made by a husband to his wife, she is induced to embark in a business on her own account or led to discharge duties obviously not devolving upon her by virtue of her marital relations, under his promise that she shall have the proceeds of such business or the compensation resulting from the discharge of such duties for her own use, nothing is thereby taken away from his creditors, and ought not to be entitled to compel the husband to act in bad faith to the extent of repudiating his agreement with his wife, nor to reclaim from her property which has been conveyed to her in satisfaction of such agreement: McNaught v. Anderson, 78 Ga. 499; 6 Am. St. Rep. 278; Gilbert v. Glenny, 75 Iowa, 513; Carse v. Reticker, 95 Iowa, 25; ante, p. 421; Riley v. Mitchell, 36 Minn. 3; Peterson v. Mulford, 36 N. J. L. 481; Nuding v. Urich, 169 Pa. St. 289; Yake v. Pugh, 13 Wash. 78; 52 Am. St. Rep. 17. Of course, we exclude from this statement those cases in which the attendant circumstances are such as to convince the court or jury that the alleged agreement between the husband and wife was a mere device resorted to for the purpose of defrauding his creditors.

As a wife may manage her separate estate and in so doing may have agents and employes and make valid agreements to compensate them for their services, there seems to be no reason why she may not employ her husband as her agent, and enter into a valid agreement with him fixing the amount of his compensation: Keller v. Mayer, 55 Ga. 406-409, and if she becomes the debtor of her husband, his creditors may, by process of garnishment, enforce for their

own benefit the liability existing against her and in favor of him: Keller v. Mayer, 55 Ga. 406. Whether, in the absence of any express contract upon the subject, there is an implied obligation on the part of a wife to compensate her husband for services in the management of her separate estate is a question which has been but very little considered by the courts, the tendency of the few existing decisions upon the subject being to the effect that under ordinary circumstances there is no such implied contract upon her part: Lewis v. Johns, 24 Cal. 98; 85 Am. Dec. 49; Perkins v. Perkins, 7 Lans. 19. It has sometimes happened that a husband has devoted the major part of his time and all of his skill and ability either in the management of the separate property of his wife or in the conduct of business carried on in her name, and that her property has been aug⚫mented in value or her business caused to realize large profits, and the husband being indebted and having no other property, his creditors have claimed that they should in some manner be permitted to enforce their obligations against the fruits of the husband's labor and skill though existing in the form of the wife's separate estate or business, and there are, doubtless, cases indicating that this claim of his creditors ought under some circumstances and by some mode of procedure to be sustained: Wortman v. Price, 47 Ill. 22; Patten v. Patten, 75 Ill. 446; O'Leary v. Walter, 10 Abb. Pr., N. S., 439; Glidden v. Taylor, 16 Ohio St. 501; 91 Am. Dec. 98. On the other hand, it is insisted that creditors do not have any right under the existing laws to compel their debtor either to labor for them, or, though he labors for himself or others, to accumulate a fund out of which they may be able to compel the payment of their demand. Where the separate property of a wife consists of a farm upon which she and her husband reside, or by the tilling of which, though they do not reside upon it, he produces the means for their subsistence, we think the majority of the courts would not hold that there was any implied contract that she should reimburse him for his labors, nor that the result or such labors would make the products of the place his property, rather than hers, and therefore subject to execution against him, where such products would not be subject to execution against him had she employed other agents and servants in their production: Cooper v. Ham, 49 Ind. 393; Buckley v. Wells, 33 N. Y. 517; Abbey v. Deyo, 44 N. Y. 343; Trapnell v. Condlyn, 37 W. Va. 242; 38 Am. St. Rep. 30; Dayton v. Walsh, 47 Wis. 113; 32 Am. Rep. 757. In a comparatively recent case upon the subject it appeared that a husband failed in business, being at the time indebted to his wife; that she with other creditors obtained a judgment against him under which his stock of goods was sold under execution to her and other of his creditors, who thereafter continued the business, employing him as a clerk; that ultimately she purchased the interest of the other creditors, and thereafter prosecuted the business in her own name, employing her husband to act as a manager at a salary of five dollars per week, they and their family being supported out of the proceeds of the business. After this course of dealing had continued for several years, she sold the business and invested the AM. ST. REP., VOL. LVIII.-32

proceeds in real property, which the husband's creditors sought to reach and appropriate to the payment of their debts. The court held that the evidence in the case did not sustain the claim that any scheme had been entered into or pursued with the view of defrauding the husband's creditors; that as against such creditors the wite might lawfully employ her husband, with or without nire, to manage and assist in carrying on the business; that in availing herself of the services of her husband she did not subject her separate estate to the claims of creditors; and finally "that the time, talents, and industry of a debtor are at his own disposal, and that his creditors have no claim thereto; that he may bestow them gratuitously upon whom he will, upon his wife as well as another; that he cannot be compelled to labor for the benefit or advantage of his creditors": Mayers v. Kaiser, 85 Wis. 382; 39 Am. St. Rep. 849; Baxter v. Maxwell, 115 Pa. St. 469. In a still more recent decision the court conceded the right of a wife to the assistance and labor of her husband which might be given to separate property, and "although it may be changed from a rude to a manufactured state, it remains her property still, and cannot be levied on by execution or attached for his debts." The court, however, reached the conclusion that there were circumstances under which a court of equity would undertake to grant relief as against a wife to the extent of wresting from her part of the profits of a business realized through the skill and labor of her husband. After examining many authorities, the court said: "From these and other numerous authorities examined there can be no other conclusion reached than that if a man skilled in any employment does business in his wife's name with the capital furnished by her, and large profits over and above the necessary expenses of the business, including the support of himself, wife, and family, accrue therefrom, owing to his skill and experience, and he turns such profits over to his wife or invests them in property for her, a court of equity will treat such arrangement as fraudulent, and will make an equitable distribution of such profits between the wife and existing creditors of the husband. Not that the wife is guilty of any actual fraud, but that her hand, be it ever so chaste, is polluted by receiving as a gift from her husband the funds which he is endeavoring to fraudulently conceal under the cloak of her separate property, from the searching eyes of his creditors": Boggess v. Richards, 39 W. Va. 567; 45 Am. St. Rep. 938. It is well to remember, in connection with this language, that it was applied to a case in which a man owning property conveyed it, in contemplation of his approaching marriage, to his intended wife for the purpose of defrauding his creditors, of which purpose, however, she had no notice; and that in every subsequent act and scheme the husband was, in the opinion of the court, actuated by a desire to avoid his creditors and to so manage his business that the very considerable profits accruing therefrom and from his labors should not result in any fund or property subject to the satisfaction of their demands; and that he appeared to take special delight in showing how skillfully he had managed to increase the value of his wife's estate mag