Hutchins v. Dixon , 11 Md. 29 ( 1857 )

Tuck, J.,

delivered the opinion of this court.

The deed from Hooper to Bowen of the 10th of February 1837, shows a plain intent to restore to his wife the property she owned at the time of the marriage, “so that the same might be for her exclusive use and benefit, as though she were a ferns sole;” and this design is further indicated by the provision, that in the event mentioned in the deed it should pass to “her legal heirs and representatives in the same manner as if they had never been married.” Words better adapted to the purpose of divesting himself of the title could not have been employed; subject, however, to the conditions that the property should be answerable for her debts, and that she should not set up any claim to his estate if she survived her husband. “Technical words are not necessary to create a separate use, but adequate language must be employed in making a gift of this kind to manifest a decided intention to transfer a separate interest, to show that the husband was not to enjoy what the law would otherwise give him.” And the effect may be produced “without the interposing office of a trustee.” Carroll vs. Lee, 3 G. & J., 504.

This deed, however, did not make any provision for the event of her dying first, without disposing of the property as authorized by its terms; and if tire deed from Bowen to Mrs. Hooper, of the same date with the other, had not been executed, and Mrs. Hooper had died without exercising that power in any other manner, the title to the personal property would have been restored to James Hooper. This is very clear according to the adjudged cases. Stewart vs. Stewart, 7 John. Ch. Rep., 229. Pickett vs. Chilton, 5 Munf., 467. Ward vs. Thompson, 6 G. & J., 349. Waters vs. Tazewell, 9 Md. Rep., 291.

But the wife having, as alleged by the appellants, made an appointment by "requiring the trustee to execute the second deed, the appeal must be determined by the construction and effect of that instrument, because as James Hooper gave authority to dispose of the property, her acts in that regal'd must bind those claiming under him.

In the case of Marshall vs. Beall, 6 Howard, 70, the court decided in favor of the wife’s title, because it appeared by the deeds under consideration, “that the intention of the parties was, to carry the title of the fund beyond the period of the wife’s death, and to exclude the husband.” And this principle was recognized as a test in the cases of Waters vs. Tazewell, 9 Md. Rep., 291; and Townshend vs. Matthews, 10 Md. Rep., 251. It is true, that in those cases, and in Ward vs. Thompson, 6 G. & J., 349, the use or separate estate was created for the wife, her executors, administrators and assigns, free from the control of the husband, whereas in the deed from James Hooper it is not so conveyed. But as we are dealing with the intention of the parties, and this is to be gathered from the whole language employed, and not by resorting merely to technical terms, we are not to narrow the construction on account of the absence of words of limitation, but must give such effect to others, if they manifest a design to extend the title beyond the wife’s death. And this we think appears, not only from the words already quoted from the recital in the deed, but also from the trustee’s power to dispose of the property in any manner she might direct during the coverture, the power to make a testamentary disposition; and if she survived the husband the limitation to her heirs and representatives, in the same manner as if the parties had never been married. The wife, in neither of the cases referred to, could have exercised much greater power over the property than was conferred upon Mrs. Hooper by the deed of her husband. If, therefore, the second deed passed the title beyond the period of Mrs. Hooper’s death, the effect must be to exclude the marital rights.

By this conveyance Mrs; Hooper took the property “for her sole use and benefit during her natural life, and after her death, (in cáse she should not dispose of the same by last will and testament,) to her heirs and legal representatives,” subject to the conditions mentioned in the first deed. We think this instrument also shows an intention on the part of the wife, who alone had the power to direct the disposal of the property, that her title should extend beyond her death, to the exclusion of the husband. She might have so directed by her will, which, we need scarcely remark, could not have operated before that period, and in default of a will the ultimate enjoyment of the properly was provided for in such a manner, that the husband could not have participated therein under either of the designations employed. If there had been no limitation after her death the property would have gone to the husband by virtue of the marriage, because his rights are not to be defeated, unless there be an intent to that effect, and when the words, ¿ínext of kin, heirs, representatives” are used in settlements of this kind, to designate the persons who are to take at the wife’s death, they are generally construed as having been so employed for the purpose of barring the husband. Stewart vs. Stewart, 7 Johns. Ch. Rep., and this construction was adopted in Waters vs. Tazewell, as to the deeds then under consideration. We cannot doubt that such was the object of this second deed. James Hooper manifestly intended by his deed to restore to his wife the property which he had acquired by the marriage, and she, in execution of the power conferred by him, itad it conveyed to herself by what, in equity, is deemed a separate estate, to be enjoyed by herself during life, and after-wards by a designated class, which, as we have said, does not include the husband. This must have been done for the purpose of defeating the title of the husband and of any persons claiming under him. The first deed looks to the husband’s interest only to the extent of protecting him against the wife’s debts, and any claim by her against his estate, as his widow; and the second deed secures to him the same interest and no greater. The appellee’s construction would defeat, not only the purpose we have imputed to Mrs. Hooper, but the very object of James Hooper himself, as expressed in his own deed, by vesting in her the same title that she had before the marriage, and thereby subjecting the property to all the incidents ■of the coverture, in the same manner as if the deeds had not been executed, whereas the design was that she should hold it in the same manner as if they had never been married.

In the case of Ward vs. Thompson, 6 G. & J., 349, the •court allude to the clause of the marriage settlement by which the husband agreed that the wife should hold the property “without the interference, in any manner, of the husband,” but we do not consider that the case was decided on that clause alone, for the court had previously spoken of the effect of such deeds where “the ultimate disposition of the property in case •of the wife’s death without disposing thereof, in her lifetime, by last will and testament, or otherwise,” is not provided for. In such cases, the court say, the property would go to the husband. It is fair to assume the court also meant, that where the ultimate enjoyment was provided for, as in this case,- the husband would not be entitled.

We place no reliance upon the circumstance that James Hooper afterwards attempted to dispose of the property by the deed of the 3rd of November 1843, as casting any light on the question of intention.

The deeds must interpret themselves without reference to the acts of the parties. “A court cannot be aided in the construction of any agreement by the acts which the parties may have done under it, nor is a party bound by any construction which he may have put upon the instrument." Ringgold’s Case, 1 H. & G., 74. He parted with his title by the first deed, and we do not perceive he acquired any interest after-wards on which his subsequent deed could operate.-

It was suggested in argument, that the second deed does not provide a trustee to hold the legal title. This assumes that the deed destroyed the trusts created by the first, which point we need not decide. But if this be the effect, it is clear, that a feme covert may have a separate estate in personalty, which is the kind of property in controversy here, without a trustee, in which case equity will treat the husband as trustee for her benefit.

The objection that Mrs. Hooper did not assent in writing to this deed, and that neither she nor James Hooper were bound by its provisions, carmot avail the appellee. The better practice in such cases is to make the wife a party by her written assent, but this is not. indispensable. If she accepted this deed that act would bind her as well as James Hooper. We must treat the deed as having been delivered to and accepted by her. It was acknowledged and recorded, and is, therefore, prima facie evidence of all circumstances necessary to give it validity. 6 H. & J., 234. Warner vs. Hardy, 6 Md. Rep., 525. In Stewart vs. Redditt, 3 Md. Rep., 67, it was decided, that these formalities import delivery to the grantee.

The result of these views is, that the estate of James Hooper docs not embrace the property in question, and that the decree must be reversed and the cause remanded, under the act of 1832, ch. 302, sec. 6.

Decree reversed and cause remanded.