Sugg v. . Tyson ( 1823 )

This case is not clear of doubts. I can find not one like it. On the one hand, it is plainly distinguishable from that class of cases where, after the determination of the marriage, part is given to the husband; there the husband is very plainly excluded, because he cannot takepart by express words and the whole by construction. It is also unlike that class where the wife takes, provisionally, for the same reason. For the sake of brevity, with this class I arrange those cases where the wife may exercise a power. Nor is it like those cases where the next of kin take as purchasers (480) after an estate for life in the wife; for the husband is not nextof kin to the wife, for all his claims under the law are jure mariti. The cases cited at the bar, 1 and 3 Vesey, jr., and Hen. Mum., and 3 Mum., are illustrative of these principles, and although there are some strong expressions in some of them, such as that the husband takes all but what by contract he gives away, yet they are either to be understood in reference to the subject matter, or they were extra-judicial. It is also unlike those cases where the husband's property, or partly his and partly his wife's, is settled on the wife for jointure, for there the design of the settlement is to confer rights, not as in this case, to abridge them. In this case property, which was the wife's, and in her possession, and which, on the marriage, would have vested absolutely in the husband, is, by an agreement made in contemplation of marriage, and solely in relation to the wife's property (for it does not appear that the husband had any), vested in trustees to the use of the husband for life, and after his death to the use of the wife and her heirs,and to no other uses.

I cannot but view this settlement as in restraint of the marital rightsthroughout both limitations; that his rights as husband, which, upon the marriage, would have given him an absolute estate in the property, are, by the agreement, cut down to a life estate; yet the reasons for this opinion are not of that strong and conclusive kind which I should wish to govern my judicial acts, yet they are much stronger than any that occur on the other side. The property belonged to the wife. The intent anddesign of the settlement were to restrain the rights of the husband, and the words used were proper to those ends. If his rights are extended to an absolute interest, his rights will be concurrent (a thing, I presume, not designed), for he does not pretend to claim, but only in the event of his wife's dying before him. His rights under the settlement continue during his life. He is neither heir or next of kin of the wife, and (481) answers not to the description, or, if you will, expression, heir of the wife; for, although in determining the quantity of estate, we must take the word heirs as a word of expansion or limitation, and allow it the same force as if the words executors and administrators had been used, yet in arriving at the intent we may take hold of the meaning of the word heir, although it be a technical word; for here it evidently is not used technically, for they are speaking of personal property. Here the word heir means blood relation on whom the law casts the inheritance on the death of the ancestor (and is taken here as next of kin); and, anciently, when lands were not alienable the heir took by succession, and when afterwards lands became alienable, whereby the whole estate became vested in the ancestors, and the heir, by necessity, took by representation, the meaning of the word heir was not thereby changed; it still means next of blood on whom the law casts the inheritance on the death of the ancestor. The circuitous and complex mode in which the intention is expressed, if it is in favor of the husband, furnishes an argument against so construing it; for if such had been the intent, the mode of expressing it would have been so obvious, plain, and simple it would have been resorted to, to wit, to the use of the husband absolutely if the wife did not survive him, but if she did, to her absolutely; for this is, in substance, the only effect which the husband contends is produced by this long settlement; and if the intent be as the wife alleges, that intent is expressed in a plain, short, and direct manner, perhaps the most appropriate that could be used; only substitute the words next ofkin for heirs. Nor does it weaken, but rather strengthen, this exposition that the drawer was an ignorant man, for that would have led to an attempt to have expressed the intent directly, however awkwardly he might have executed it; and, lastly, that the trustees were to hold upon the trust expressed in the deed, and no other. Upon the whole, I think the whole scope and design of the marriage settlement was to bind and reduce the rights of the husband, of every (482) description, to those given him in the deed, to wit, a life estate.

TAYLOR, C. J., and HALL, J., concurred.

PER CURIAM. Judgment accordingly.

Cited: Gee v. Gee, 22 N.C. 110.