Opinion of the Court-McArthur, J. By the Court, MCARTHUR, J.: Tanisse Liard settled upon, claimed and commenced to cultivate land claim No. 95 in township 4 south, range 2 west, containing two hundred and sixty-three and fifty-three one-hundredths acres lying in and being parts of sections 20, 21, 22, 27, 28 and 29, in said township and range, in 1846, and continued to reside upon and cultivate and possess said lands until his death. He filed his notification to hold said lands under the Donation Law (so called) in his own individual right, without stating that he had a wife, and duly made his final proof of four years' residence and cultivation, as by the law required to entitle him to a patent from the United States. On December 29, 1851, after having made such final proof, he executed a will, and dying shortly afterward, said will was admitted to probate, September 2, 1852. Shortly afterward a certificate was issued by the proper officers to his heirs at law for all of said lands. The date of his marriage with Celeste (now intermarried with Honore Picard) was February 5, 1849, and he continued to live with her upon said premises from the date of their marriage until the time of his death, about March 15, 1852. Marguerite is the only child of Tanisse Liard and is the fruit of his marriage with Celeste. By the terms of the will he bequeathed and devised to his wife, Celeste, and to his daughter, Marguerite (now intermarried with Adolph Jette), each "one-half of all the personal property and real estate of which he should die possessed or seized." In March, 1870, a petition was presented to the officers of the proper land office on behalf of Celeste, which was contested by Marguerite. After hearing the matters set out in the petition, the donation certificate, which had been previously issued to the heirs at law of Tanisse Liard, was, on September 20, 1870, corrected and changed so as to give the heirs at law the north half of the claim, and to Celeste, the widow of Tanisse, the south half thereof. This decision remains unappealed from and is in full force. Some time prior to the decision of the land officers, this suit was instituted for partition of the premises, and was continued 4 298 5 257 9 465 Statement of Facts. from term to term, and finally at the June term, 1871, was heard. After hearing, the Court made a decree dismissing from consideration the south half of the claim, and ordering that the north half thereof be equally divided between Celeste and Marguerite. From this decree Marguerite appeals, and urges that she is entitled under the will to onehalf of the entire tract. When Liard availed himself of the provisions of the Donation Law he was at liberty to take up six hundred and forty acres, one-half of which would go to his wife. He could take any less number of acres, but could not so take as to preclude his wife from her share of what was taken. The right of the wife in no way depends upon the number of acres taken up. She has a clear right to half of whatever quantity of land he took. (Donation Act, % 4.) When he executed the will it seems he was laboring under the impression that his wife had no interest in the claim,-that is, nothing in her own right. There is nothing in the case which warrants any other conclusion than that he was simply mistaken; there is nothing at all which savors of fraud. The provisions of the will operate only upon the north half of the claim, for that is all that he owned at the time of its execution. It is a settled principle that the intention will govern in the construction of a will, but it is equally true that a man cannot devise by testament what he does not own. Courts cannot apply a will to any property but that which is found to actually belong to the estate of the testator. Decree affirmed. EMILY C. PITTMAN, APPELLANT, v. WM. M. PITT- WIFE'S RIGHT OF ACTION AT LAW.-A divorced wife cannot maintain an APPEAL from Linn County. The complaint alleges that on or about December 3, 1864, the defendant received from the plaintiff's father the sum of Opinion of the Court--McArthur, J. one thousand dollars in gold coin to the use of the plaintiff; that demand for the payment thereof was made, but that the defendant has not paid any part thereof, but is now justly indebted to the plaintiff in the sum of one thousand dollars. The answer denies specifically each affirmative allegation of the complaint, and alleges that on July 4, 1858, the plaintiff and defendant were lawfully married, and continued to be husband and wife until July 14, 1870, at which date they were divorced by decree of the Circuit Court for Benton County. And further, that the plaintiff, as heir at law of Hetty Allen, deceased, was entitled to a certain onefifth of said decedent's land claim. That the same was sold to one Chambers, the proceeds thereof being eight hundred dollars, and that Chambers, with the knowledge and assent of the plaintiff, paid the same to one Mulky's administrator, in discharge of a demand of said administrator against the defendant, and that there never was any previous agreement or understanding that the money should be refunded to the plaintiff. The Statute of Limitations is also pleaded. The new matter in the answer is denied in the reply, and therein it is further alleged that there was an understanding that plaintiff was to have the money to her own use; that she always claimed it; that the money was the proceeds of her interest in her mother's estate, and that at the time of instituting this action the plaintiff was a single woman. Defendant moved for judgment on the pleadings; and from the order allowing said motion and dismissing the action the plaintiff appeals. By the Court, MCARTHUR, J.: A careful examination of the pleadings discloses that this is an action at law upon an implied contract for the payment of money, and that at the time of the transaction out of which the implication arises, the parties were husband and wife. At common law, husband and wife were incapable of making any contract, express or implied, which a Court of law would countenance or uphold. Nor does the constitutional provision (Art. XV, 2 5) break the force of this rule. That provision was adopted for the protection of the wife's prop Opinion of the Court--McArthur, J. erty from the debts or contracts of the husband. It does not enlarge her strictly legal rights so far as to allow her to sever her unity from her husband, and enable her to enter into contracts with him as with a mere stranger. The appellant cannot recover upon the implied contract pleaded in a Court of law. The only forum wherein the questions presented by this record can be properly examined into, and the adequate remedy afforded, is a Court of equity. Courts of equity protect with great care the separate property of the wife and the proceeds thereof, and enforce against all persons any reasonable agreement concerning it. The beneficent rules which they now apply in this class of cases have tempered the harshness of those relics of feudalism which still find sanction in courts of law. In this case the amount sought to be recovered was the proceeds of the sale of a parcel of land inherited by the appellant during coverture. Under no circumstances could the land, or the proceeds thereof, have been reached by any process issued at the instance of the creditors of the respondent. Being a pecuniary right, occurring during coverture, the respondent could not equitably appropriate it to his own use, or to the discharge of his liabilities, without the knowledge and assent of the appellant. If appropriated for such purpose by the husband without the wife's knowledge and assent, every consideration of morality and justice would lead a court of conscience to assert its jurisdiction, and order the husband to make restitution. If so applied with her knowledge and assent, we see nothing in the way of treating it as an equitable loan, unless the wife absolutely renounced all claim thereto. In New York, where the property rights of married women are not more fully protected by legislative enactment than they are in Oregon by constitutional provision, it is well settled that a wife can loan money to her husband, and, before repayment by him, she has a claim against him which she can enforce in equity, though not at law. (Savage v. O'Neil, 44 N. Y. 302.) Transactions of this character are not nudum pactum. Where the money arises from the wife's separate property, over which she has com |