Perkins v. Hays , 69 Mass. 405 ( 1855 )

Thomas, J.

The learned counsel have discussed with acumen and affluence of learning the questions, how far a feme covert is vested with the power of a feme sole as to her separate estate; how far she can alienate such estate by anticipation; whether she may alienate in part as well as the whole; for the benefit of the husband as well as third persons ; without the assent of the trustees, as well as with it; and whether such power of alienation must be given in express terms, or may be assumed to exist unless denied or restrained by express negative declaration in the will or deed of trust.

We have paused at the threshold of this interesting discussion, being satisfied, upon examination of the will of Mr. Perkins, that this alienation by Mrs. Doane clearly exceeds any power of disposition given by the will, and tends directly to defeat the clearly expressed purpose and intention of the testator.

The testator intended this sum of six thousand dollars for the use and support of his wife during her life, and of his children during their minority. The enjoyment of this income by her, without deduction or diminution from any cause whatever, may be said to be the paramount object and purpose of the will, to which all other objects and purposes are made subordinate. It is clear, also, that the testator anticipated and anxiously provided for a state of things in which his widow might become incapable of receiving and using the money ; and in sue! event, and in failure of the appointment of any legal guarnían, he has made it the duty of his executors and trustees, or the survivors or survivor of them, themselves to apply this sum to the support and maintenance of his wife, and the support and education of his children during their minority.

It seems to us equally plain that the power of alienation by anticipation is inconsistent with, and would tend directly to defeat this main object and purpose of the will. The power is not given in terms. A power may be implied to effect the purposes of the testator, but not to defeat them.

To say that, because it is her separate estate, she has the power of alienation by anticipation, is to assume the question. It is only her estate subject to the limitations and restraints imposed by the will. It is separate in this view, clearly, that it was intended for her use and support, and not to pay the debts of others. Her right is to receive quarter-yearly, without any deduction whatever, the sum of fifteen hundred dollars, or, in case of inability to receive it herself or upon her order, from sickness or any other cause, to have it applied to her support and maintenance.

By the assignment to the defendant Hays, if it were valid, she would alienate one sixth of her income, for a period of about fifteen years. If she may so alienate a part,' she may alienate the whole ; for it is a question of her power, and not of the discreet exercise of that power.

If she has the power to alienate by anticipation, ij is a power she can exercise without the assent of the trustees, for neither the will nor the law has given them any discretion in the matter.

If this alienation were made, and the event anticipated and provided for in the will were to occur, the duty of the executors or surviving executors to apply the annuity to her support would stiff remain, and must be discharged, or the main object and purpose of the trust be defeated.

Upon this view of the will itself, and its manifest object and purpose, we are all of opinion that the assignment by Mrs. Doane to Hays clearly exceeded the power given to her by the will of Mr. Perkins, and is not binding upon the surviving executors.

With relation to the order given to the other defendant, no serious question is made. It bears date the 1st of October 1851, and is her personal order for the amount then due. The consideration for it was that amount of money paid to Mrs. Doane for her separate use.

Assignment to Hays declared void; and quarter’s armvity payable on the 1st of October 1851 ordered to be paid to E. IV. Perkins