Lamb v. Wragg , 8 Port. 73 ( 1838 )

COLLIER, C. J.

— The bill of exceptions, in this case, raises one question, touching Which, if our opinion be favorable to the defendants in error, we need not look farther into the points raised at the trial. That question is this: Does a deed of gift, made by a father to a son-in-law, in trust for his wife,.(the daughter,) for and during the term of her natural life, and after her death, to such child or children of their marriage, as may then he living, vest a separate estate in the wife and daughter for life?

It may be laid down as a general rule, where property is given or bequeathed to a married woman, without any qualification of the manner in which it is to be possessed or enjoyed, that it will vest subject to the ordinary legal and marital rights of the husband. But if it appear from the deed, or other instrument which transfers the property, that it was the intention of the donor or testator, that the wife should have an estate therein to her own separate use and disposal, such intention shall take effect, if it be fairly and clearly expressed. What terms are necessary to speak such an intention, it is not always easy to determine. The books contain some cases marked by nice distinctions, and the decisions even of the same court upon this subject, have not, in every instance, maintained uniformity.

In Hartley vs. Hurle, (5 Vesey, jr. 544,) the Master of Rolls decided that a bequest in trust, to pay the annual produce of a fund created by the testator, into the proper hands of a married woman, was a bequest to her separate use. But in Tyler vs. Lake, (6 Cond. Eng. Ch. R. 450,) it appeared that lands were settled upon trust, after the death of the settler, to sell the same and distribute the proceeds among all the settler’s children nomi-natim: and as to the shares of two who were married women, the trustees were directed to pay the same “into their own proper and respective hands, to and for their own use and benefithut in case they should be then dead, to pay their shares to their respective husbands, for their own use and benefit. The Lord Chancellor, in delivering his opinion, remarks: “Neither do I think that the direction which is superadded, ‘to pay the shares into their own proper hands/ either taken singly or in connection with the rest of the clause, is sufficient to create a separate estate in the wife. The only authority cited for such a proposition, is Hartley vs. Hurle, which was a case under peculiar circumstances, and in which that was not the point principally considered.”

In Lumb vs. Milnes, (5 Vesey, jr. 521,) the Master of the Rolls considered that the mere fact of vesting the estate in trustees for the benefit of the wife, did not create a sole and separate interest in the wife, and he assumed that no case had ever gone the length of so deciding. And in Kensington vs. Dollond, (7 Cond. Eng. Ch. R. 322,) it appeared that by the marriage settlement of a widow, her property wás assigned to two trustees upon trust, to invest and pay the dividends to her for her life, for her own sole and separate use, and after her decease, upon trust, to pay the fund to a .daughter by her first marriage, (who was then .married) “for her own use and benefit.” The daughter’s husband becoming bankrupt, it was held, that on the death of the tenant, for life, his assignees were entitled to the fund subject to the wife’s equity for a settlement. The Master of the Rolls observed, that “the intention to give a separate estate must be clearly expressed. A gift to a wife for her own use and benefit, does not clearly express such an intention; nor does a gift to a husband for his wife’s own use and benefit, (the husband being one of the trustees of a-settlement) dearly indicate such an intention.”

■ The law seerns rather to favor the marital rights of the husband, and will not consider them to be interfered with, by any disposition of property made for the wife’s benefit, unless there is a clear exclusion of his interest and control-(2 Atk. R. 561; 3 lb. 399.) In Wagstaff vs. Smith, (9 Vesey, jr. 520,) a trust was created by will to permit a married woman to receive the interest or dividends of stock to her own use during her life, independent of her husband. The Master of the Rolls determined, that by the terms of the trust, an absolute and complete life interest passed to the wife — (See also Lumb vs. Milnes, (5 Vesey, jr. 528.) And in Jamison’s ex’or vs. Brady and wife, (6 Serg. & R. Rep. 466,) it was made a question, whether a bequest to a married woman for her oi07i use, conveyed to her an interest for her oicn separate use, and it was adjudged that it did. The court lay great stress upon the intention-of the testator, not alone as it was to be gathered from the will itself, but as it was inferrable £rom extrinsic circumstances. It appeared in proof, that the husband was indebted to the testator: this circumstance is remarked upon by the court, as indicating the testator’s intention to vest a separate estate in the wife; otherwise, his bounty would be of no avail to the wife, but would operate rather as a release of the husband’s indebtedness.

The cases most favorable to the interest of the wife, are decisions of the Court of Chancery of South Carolina. In Judith Barrett vs. Judah Barrett, (4 Dess, 447,) a bill was filed by the wife against the husband, to have the benefit of a deed executed between the parties immediately before marriage, which it was alleged was intended to secure the property of the wife in possession, and in expectation, to her separate use. The clause of the deed relied on by the wife as having that effect, was as follows: “ The said Judith Barrett, being desirous of settling and limiting her property in a particular way, the property described shall be limited to the said Judith Barrett, during her natural life, and to such issue as she may have by the said Judah Barrett; and in case the said Judah shall survive the said Judith, and she should leave no issue, the whole of the property is to descend to the said Judah.” The chancellor who presided on the circuit, held, that this clause vésted in the wife a separate estate, but the Court of Appeals reversed his decree, maintaining the law to require a clear manifestation of intention to divest the marital rights of the husband, before a distinct interest could be set up in the wife. And in Johnson vs. Thompson, (4 Dess. R. 458,) a case which depended upon the construction of a deed of gift, which a father made of certain personal property, to a daughter who was then a married.. woman — Her husband disposed of the property. — The complainants, who were the children of the donee, contended that their grand-father intended to give a separate estate to their mother, not subject to the debts or disposition of. her husband. The Court of Appeals determined, that “the property in dispute being given to the mother of the complainants after marriage, it may be fairly inferred from the words of the deed, that the intention of the father, the donor, was to give to her a separate estate, which her husband had no right to dispose of, in any manner.” What the “words of the deed” were, the report no where informs us, and the learned reporter, in his head note, leaves it very clearly to be inferred, that the fact of the daughter being a married woman at the time of the gift, sufficiently indicated the father’s intention to vest in her an estate to her separate use, yet the decree could not have been influenced by that consideration — if it was. it may at least claim the merit of novelty, while it stands unsupported and insupportable.

A distinction has been often taken between a gift or bequest to a married woman, and a gift or bequest to one who is unmarried, unless it is made in contemplation of an immediate marriage, and with a view to a provision for that event. In the case of the unmarried woman, much stronger terms are required to indicate the intention of the donor or testator to continue a distinct interest in herself, after she shall come under the protection and control of a husband. If the terms employed are, that the property shall be “ at her own disposal,” or “ for her sole and her separate use,” the property would Vest absolutely in her as owner, and upon marriage, would not be holden otherwise than as her other absolute estate; but would be subject to the marital rights of the husband—(2 Story’s Equity, 610, 611, and cases there cited.)

In the case at bar, we have cited quite a number of authorities, not because we have thought it necessary to the understanding of the principle of our opinion, but that the course of judicial decision upon this interesting question should be seen. There is not the slightest indication of intention in either of the deeds of Alexander Lamb, that his daughter should hold the slaves at her own disposal, or for her own use, and as her separate property; nor are there any terms to be found in either of them, which would inhibit the husband from disposing of the slaves, against the consent of the wife. The husband, then, must be taken to have acquired an estate for the life of his wife, in the slaves in controversy, by virtue of the gifts to himself in trust for her, untrammeled by any right of the wife to dispose of them. The interposition of a trustee, or the fact of Mrs. Lide being married at the time of the gifts, we have shown could make no difference, and consequently the slaves are liable to levy and sale to pay the husband’s debts. If there be any children of the marriage of John J. Lide and his wife, a court of equity will be open to their relief, by interposing even during the life of the mother, to prevent a removal of the slaves, so as to put in jeopardy the enjoyment of their eventual interest.

Our conclusion on this question is decisive of the case, and relieves us from considering the other points presented by-the bill of exceptions. The judgment is affirmed.