Rathbone v. Hamilton , 4 App. D.C. 475 ( 1894 )

Mr. Chief Justice Alvey

delivered the opinion of the Court:

The first question is, from whom and how did Mrs. Lucy Y. Elkin, under whom both parties to this action claim, really acquire the property, and what was the nature of the property as she held it? Did she acquire and hold it in her common law right as a feme covert, or did she acquire and hold it as her separate statutory estate, as if she were not married, under Section 727 of the Revised Statutes of the United States relating to the District of Columbia ? This depends, of course, upon the terms of the statute, and the nature of the transaction as shown by the deeds.

The section of the statute just referred to is part of the revision of what is generally known as the Married Woman’s Act, of the 10th of April, 1869,16 Stat. 45. The section as it stands in the revision is as follows:

“ Sec. 727. In the District the right of any married woman to any property, personal or real, belonging to her at the time of marriage, or acquired during' marriage in any other way than by gift or conveyance from her husband, shall be as absolute as if she were unmarried, and shall not be subject to the disposal of her husband, nor be liable for his debts.”

Now, if the wife acquired the property in question by gift or conveyance from her husband, she did not hold the same as absolutely as if she were unmarried; but she held the same as her general property, as by the common law she was authorized to acquire and hold real estate, and not as her statutory separate estate. And assuming the facts to exist as they are stated in the record, there is no escape from the conclusion that the property was acquired by gift or conveyance from the husband, though it was through the brother of the wife of the grantor as mere medium of transfer of title. There is no attempt to show that there was any real pecuniary consideration for the deeds, and the consideration stated in them is purely of a nominal character ; and all the facts attending the transaction show beyond doubt that the real purpose and design of the husband was to transfer from himself to his wife the title to the property. The passing the title through a third party in no manner changed the effect of the transfer. Though the agency of, a third party was employed, it was no less, in legal effect and contemplation, a gift or conveyance from the husband to the wife. Indeed, if the exception in the statute could be avoided by adopting such a facile method of conveyance to the wife as that here employed, such exception would simply be rendered nugatory, and would have better been omitted from the statute. The deed, however, to the wife was completely effective, and vested in her the legal title to the property, but she held such property as her general estate, subject to her common law disabilities as a feme covert. This has been expressly held, in reference to this very statute, and in a case like the present, where the title to the wife was conveyed by the husband through the medium of a third party. Kaiser v. Stickney, Bk. 26, L. C. Ed. Sup. Ct. Rep. 76 ; S. C., 131 U. S. 187, of appendix of previously omitted cases. And so in the case of Cammack v. Carpenter, 3 App. D. C. 219. These cases, just referred to, arose since the Married Woman’s Act of 1869, and were decided in reference to the provisions of that act; and it was expressly held, that the property so acquired by the wife was held by her as her general property, which she could only convey by uniting with her husband in a deed executed in the form required by Secs. 450, 451 and 452 of the Revised Statutes relating to the District of Columbia. See, also, the case of Williams v. Reid, 19 D. C. 46. It is clear, therefore, that Lucy V.Elkin did not acquire and hold the property in controversy under the statute, as if she were unmarried.

2d. It is contended, however, that even though it be conceded that the wife took the property as her general estate, according to the common law, yet the statute clothed her with full power of disposal of the property, either by deed or will. And it is upon the terms of the next succeeding section, 728, of the Revised Statutes of the District, that such contention is founded. That section is in these terms:

“Any married woman may convey, devise, and bequeath her property, or any interest therein, in the same manner and with like effect as if she were unmarried.”

Both this and the preceding section, 727, have marginal references to the original act of 1869, Ch. 23, Sec. 1, (16 Stat. 45,) as the source from which the text of the two sections, 727 and 728, was made. There is nothing to indicate, apart from some slight verbal changes, or omissions of phraseology, that there was any design to change or extend the original provision of the act of 1869, Ch. 23, Sec. 1. At most, this change of phraseology could but give rise to a doubt as to the meaning of the statute.

Before this act of Congress of 1869, according to the principles of the common law in force in this District, a married woman had no power or capacity to convey the legal title of her real estate without the joinder of her husband ; nor had she any power or capacity to devise her lands by will, being expressly excepted out of the Statute of Wills of Henry VIH. She was and is, however, competent to convey or devise by virtue of a power, and she may convey or •devise her sole and separate estate in equity, except where restrained by the instrument creating the estate. Her land held by her as a feme covert at the common law,.was and is subject to the marital rights of the husband, and if he survives her, after the birth of a child, he is entitled to a life estate in the land by the curtesy.

Has this common law principle, then, been so far radically changed by this act of Congress, that the wife, though acquiring the property as at the common law, and not under the statute, may convey by deed or devise the property as if she were unmarried, and thus deprive the husband of all his marital rights? It is not seriously contended that this was the effect of the act of 1869, as originally enacted. But it is supposed that such is the effect of the change made in the phraseology of the revision.

As a rule of construction, it is laid down by the Supreme Court of the United States, that where the meaning of the Revised Statutes is plain, the court will not recur to the original statutes to see if errors were committed in the revision, but may do so to construe doubtful language employed. ' Cambria Iron Co. v. Ashburn, 118 U. S. 54 ; United States v. Lacher, 134 U. S. 624.

In the last case just referred to, that of United States v. Lacher, the chief justice, in delivering the opinion of the court, said : “ If there be any ambiguity in Section 5467, inasmuch as it is a section of the Revised Statutes, which are merely a compilation of the Statutes of the United States, revised, simplified, arranged and consolidated, resort may be had to the original statute from which this section was taken to ascertain what, if any, change of phraseology there is, and whether such change should be construed as changing the law. Citing United States v. Bowen, 100 U. S. 508, 513 ; United States v. Hirsch, 100 U. S. 33 ; Myer v. Car Co., 102 U. S. 1, 11. And it is said that this is especially so where the act authorizing the revision directs marginal references, as is the case here. 19 Stat., Ch. 82, Sec. 2, p. 268; Endlich on Int. Statutes, Sec. 51. Accordingly we find that this section took the place of Section 279 of the act of June 8th, 1872.”

By the first section of the original act of 1869, Ch. 23, it was enacted that—

“ The rights of any married woman to any property, personal or real, belonging to her at the time of marriage, or acquired during marriage, in any other way than by gift or conveyance from her husband, shall be as absolute as if she were a feme sole, and shall not be subject to the disposal of her husband, nor be liable for his debts; but such married woman may convey, devise or bequeath the same, or any interest therein, in the same manner and with like effect as if she were unmarried.”

In the revision this section of the original act has been broken or divided into two short sections, 727 and 728. And the change of phraseology that has occurred does not seem to be more than was necessary and appropriate in making the new arrangement of the subjects-matter of the original section. That, as we have seen, confined the wife’s separate power of disposal to the same property that she was authorized to acquire under the statute as separate estate. And we think the wife’s power of disposal has not been enlarged or extended by the revision beyond what was given her by the original statute; and that did not apply to or embrace property acquired by gift or conveyance from her husband. The wife’s power of disposal over property contemplated by the statute is given either by deed or will; but, as we have seen, it has been held expressly, in cases like the present, that the power of disposition by deed does not exist. Kaiser v. Stickney, supra ; Cammack v. Carpenter, supra. And if the power could not be exercised by deed, for the same reason it could not be exercised by will.

3. But it has been contended for the appellee that, independently of the power given by the statute, the wife may dispose of her real estate that she holds to her sole and separate use, either by deed or will; and that the property in this case was held by the wife to her sole and separate use.

It is doubtless true that a married woman can, m equity, dispose by deed or will of the equitable fee simple of her real estate, and of the absolute interest in her personal estate, which belong to her for her sole and separate use; since, in respect to such property, she is a feme sole. And, in respect to such property, it is immaterial that the legal estate is not vested in trustees, as the husband and all other persons on whom the legal estate may devolve, will be deemed and treated as trustees for the persons to whom the wife has given the equitable interest. This is the established doctrine in the English Chancery, and it is the established doctrine of the courts of this country, to the same extent. Taylor v. Meads, 4 D., J. & S., 597 ; Pride v. Bubb., L. R. 7 Ch. 64 ; Cooper v. Macdonald, 7 Chan. D. 288 ; 2 Sto. Eq. Juris., Sec. 1380. If the gift or conveyance be designed to be for the wife’s separate and exclusive use, that intention will be fully acted upon and carried into effect. But the question is, whether the instrument of conveyance shows plainly that to have been the intention of the parties to it; for, as said by Judge Story, “the purpose must clearly appear beyond any reasonable doubt; otherwise the husband will retain his ordinary legal and marital rights in the property.” Indeed, in all cases, the words must manifest an unequivocal intent to exclude the power and marital rights of the husband. 2 Sto. Eq. Juris., Secs. 1381, 1382. But here, unfortunately for the defendant, there is nothing in the deed from Calvert to Mrs. Elkin to create a sole and separate estate in her, to the exclusion of the marital rights of the husband. The only clause in the deed which could possibly be supposed to have any such effect, is the ordinary habendum, clause, which declares that the property was to be held “ unto the said party of the second part, her heirs and assigns, to and for her and their sole use, benefit and behoof forever.” This is but a common formula found transcribed in all the several deeds in the record; the deed from Quinter to Abram Elkin, Jr., for the property in question, appearing to furnish the precedent for all the subsequent deeds for the same property. It clearly has no such effect as that of declaring a sole and separate estate in the wife. In the case already referred to, of Kaiser v. Stickney, supra, the deed to the wife contained the same formal habendum, clause as that of the present deed, but it was not contended, nor even suggested, that it was sufficient to create a separate and exclusive estate in the wife.

If, however, the deed contained an effective clause, creating a sole and separate estate, it could not avail the defendant in this action; for in an action of ejectment a legal estate or title is as necessary, when title is relied on as a defense, as is such an estate or title to the right of the plaintiff to recover. A mere equitable estate could not be set up to defeat the legal estate.

4. It has been contended by the plaintiff here, the present appellant, that even assuming that Mrs. Elkin had power to dispose of the property by will, the executor named in the will had no power of sale, and that the sale made by him, therefore, was simply void. But in this we do not agree. If the right to make the devise of the estate existed, the testatrix directed her property, real and personal, to be sold, and after deducting funeral and other expenses, she directed how the proceeds of the sale should be distributed and paid out. The making of this distribution was a proper duty of the executor; and it is clear, we think, that the executor named in the will would have power to sell and convey the real estate, as he would haye of the personal estate, raised by necessary implication. This would seem to be the settled construction of similar devises or directions to sell, without express power conferred. Magruder v. Peter, 11 Gill & John. 217 ; Peter v. Beverly, 10 Pet. 532 ; Taylor v. Benham, 5 How. 233.

Inasmuch as this case must be sent back to the court below for retrial, it is proper to advert to a question that must arise in the course of the trial, and that is, the question as to the right of entry of the plaintiff. That right depends upon the question, whether the husband of Mrs. Lucy Y. Elkin is dead or alive. If alive, upon the assumption that Mrs. Elkin was without power to devise the property, he would be entitled to his life estate by the curtesy, and until the termination of that estate, the plaintiff would have no right of entry in her character of heir-at-law of her mother, and, consequently, no right to maintain an action of ejectment. To maintain the action, the death of the father must be shown, either by positive proof or presumption.

The judgment appealed from must be reversed, and a new trial awarded.

Judgment reversed, with cost to the appellant, cmd a new trial awarded.