Ward v. Thompson , 6 G. & J. 349 ( 1833 )

Dorsey, J.,

delivered the opinion of the court.

The right of Robert Thompson, the husband, to the letters of administration granted to him on the estate of his deceased wife is undeniable, unless he be divested of that right, by the deed of settlement executed anterior to wedlock: by which it is declared, that the trustee to whom her real and personal property were granted, should hold the same in trust, “to and for the use and benefit of the said Ann W. Menger, her heirs and assigns forever, without impeachment of, or for any manner of waste; all of which properly, to be under ánd subject to, the exclusive and entire management and control of the said Ann W. Menger, her heirs, executors, administrators, or assigns, without the interference in any manner of the said Robert Thompson. And the said Ann W. Menger, her heirs, executors, administrators, or assigns, to receive and enjoy the rents, issues and profits thereof; and the said Ann W. Menger, to have full power and authority to make such disposition of all, or any part of said property, as she at any time may think proper and advisable. And to dispose of the same by last will and testament, in as full, free, and ample manner, as if she were not a married woman, but a feme sole.” It is manifest on the perusal of this deed, that it is not from the hand of an experienced, skilful conveyancer. It appears to have been inartificially drawn, having omitted a clause usually embraced in such a conveyance, by which the ultimate disposition of the property, in ease of the wife’s death without disposing thereof in her life-time, by last will and testament or otherwise, would be provided for. Had such an omission occurred in an ante-nuptial contract in the usual form, securing her property to the wife for life, without any interference or control of the husband, and giving to the wife the power of testamentary, or other disposition in her life-time, as in the case of Stewart vs. Stewart, 7 Johns. Ch. Rep. 228, the right of the husband to the property, and of the administration thereof, over which the wife had failed to exercise her power of appointment, could not be controverted. The marital rights of the husband having been suspended only during the life of the wife, after her death they are as efficaciously revived, as regards the future, as if no such suspension had ever taken place. As a necessary consequence, he is entitled to all the undisposed of personal estate, and choses in action of his deceased wile. But such is not the condition of the husband in the present case. He has not made a temporary surrender of his marital rights over the estate in question, during his wife’s life; but has abandoned them forever. His agreement is that, “without the interference in any manner of the said Robert Thompson,” “all of which property to be under, and subject to the exclusive and entire management and control of the said Ann W. Menger, her heirs, executors, administrators, or assigns,” “and the said Ann W. Menger, her heirs, executors, administrators, or assigns, to receive and enjoy the rents, issues, and profits thereof.” In the trust estates of the wife, the husband is entitled to a life-estate, as tenant, by the courtesy. Could it be contended, that the appellee in this case might claim in that character, against the heirs of his wife, in whose favor he had renounced all his rights, and had expressly agreed that they should have “the exclusive and entire management and control” of the premises in question, and that they should “receive and enjoy the rents, issues and profits,” arising therefrom? We think not. Upon what principle then can the appellee’s claim to the personalty bo sustained ? He has made the same renunciation and agreement, in favor of the executor or administrator, that he did in favor of the heirs of Mrs. Menger, and is equally barred in both cases.

The order of the Orphans court, for the granting of letters of administration to Robert Thompson on the estate of Ann W. Thompson is reversed, and the record in this case remanded, that letters of administration may be granted by the said Orphans court, to the person thereto entitled.

ORDER REVERSED AND PROCEDENDO AWARDED.