Hamersley v. Smith , 4 Whart. 126 ( 1839 )

The opinion of the Court was delivered by

Gibson, J. C.

— The point in contest was virtually decided in Massey v. Parker, (2 Mylne & Keene, 174,) when it was settled that a restriction attempted by a gift to the separate use of an unmarried woman, is an impracticable one; and that it has no force to prevent her from giving the property to a husband by the act of marriage, or disposing of it in the interim. The principle has its root in Brandon v. Robinson, (18 Ves. 492,) where it was held, that though property may be so limited as to cease or go over on the happening of a contingency; yet that while it remains in the donee, it is so far subject to the legal incidents of ownership as to be unsusceptible of a restriction which would exempt it from liability to his creditors. Perhaps it is not easy to discern the policy of a rule which disables a benefactor from making a determinate provision for his beneficiary, which cannot be squandered or reft from him; yet the law seems to be thus settled, not only by the cases cited, but by Newton v. Reid, (4 Simons, 141,) and Woodmeston v. Walker, (2 Russ. & Mylne, 197,) in which the principle was applied to an unmarried woman. An apparent exception to it, is a gift to the separate use of a woman in contemplation of her marriage with a particular person; which, by force of the agreement implied by his assent, constitutes a future separate use during the particular coverture, but which is in reality no exception at all. Brandon v. Robinson was the case of a gift to a male; but its principle was soon found to be equally as operative in the case of a female; and the English chancellors gave it as much scope as they could, even in cases of an admitted separate use, by allowing to a wife the dominion of a feme sole wherever her power over the gift was not restrained by the terms of the trust, — a principle we rejected in Lancaster v. Dolan, and with what reason, is seen .in their restless and feverish course in respect to it. . In that class of cases, however, there is, as I have said, an admitted separate use in the first instance ; and the question has regard to a limitation of power which the donor is unquestionably competent to impose. In this, it is whether he is competent to engraft on an absolute gift, not by way of cesser or donation over, a present disability to transfer the dominion over it by marriage, — in other words, whether he can annex a repugnant qualification to a gift, which is to be enjoyed, at least for a period, in full property; and to sustain the affirmative of it, would in effect impose, by anticipation, one of the disabilities' of coverture on an unmarried woman, and, according to the British principle, free her from it the moment she married; which would turn the law upside down. Admitting the soundness of the. principle that there cannot be a restraint which is repugnant to the gift, it is impossible to doubt the correctness of the decision in' Massey v. Parker, which is in accordance with it. Now the difference betwixt that case and the present, is that here the feme was married at the time of the gift, and there she was not.'; but the effect of it is only, that she had in our case an unquestionable separate use during the first coverture. This separate use and the coverture, however, expired together, as we determined in Smith v. Starr ; and she became the owner without regard to the previous qualification. That being so, the limitation of a further use, would be as repugnant to the nature .of the gift as if she had not been married; and that the previous qualification was not revived'by the second marriage, is a dorollary of all the cases.

Judgment for the plaintiffs.