Johnson Ex Rel. Burke v. Snow

BoswoRth, J.

In this case the petitioner, by her next friend, asks for the removal of a trustee of her property, heretofore appointed by this court, at her own instance, in accordance with the provisions of the act concerning the property of married women. The petition alleges, that the causes for which she desired and sought such trustee no longer exist; that she knows no reason why the protection of her rights requires the continuance in his office of such trustee; and that she now prefers to have the management and control of her property, under the laws of the state, without the intervention of a trustee.

The trustee, being cited, appears and resists the application.

The facts, so far as they are necessary to be considered in the case, which appear to have led to the proceeding on which we are now called to act, are these:—

Prior to the marriage of the petitioner with her present husband, there had been certain conveyances of a part of her estate made by her to him. After the marriage, there had been a disturbance of the harmony of their marital relations, which had caused the wife to separate from her husband; and while living separate, she had petitioned this court for the appointment of the trustee. The trustee was appointed, and, at her request, he has commenced proceedings by bill in equity filed in this court, to have the conveyances of her property, made before marriage, set aside, alleging that they were fraudulently obtained. Pending this bill, the wife is reconciled to her husband, returns to his house, and is now, as she asserts, living happily with him; and she has requested her trustee to discontinue the proceedings on the bill in equity, which are now carried on at her cost, being satisfied, and preferring, that the conveyances shall stand, and that she may have the management of her remaining property, without the intervention of any trustee.

A few simple principles of the law are sufficient to guide the discretion of the court in relation to an application of this sort. By the common law, the property of a woman becomes by marriage subject to the control of her husband. Personal property vests absolutely in him, and real property is subject to his control, so that he may manage it and take the rents and profits, and it is liable to attachment for his debts. By the act concerning the property of married women, the common law is modified; and her real estate, and certain kinds of her personal estate are so far secured to her, to her sole and separate use, as that the same, and the rents, profits, and income thereof cannot be attached or taken for the debts of the husband, either before or after his death; and upon the death of the husband, in the lifetime of the wife, shall be and remain her sole and separate property. The receipt or discharge of the husband for the rents and profits of such property, unless forbidden in writing by the wife is, however, made a sufficient discharge; and in case the receipt by the husband is thus forbidden by the wife, her receipt alone is a sufficient discharge. The plain purpose of this statute is, so far to modify the policy of the common law in relation to the property of a married woman, as to prevent her property from being attached for her husband’s debts, and to give to her the power to provide against an improvident waste of her property, by her husband, or an unjust application of it to his own uses, without her consent. At the same time, it carefully leaves the wife to confide the management of such property to her husband if she chooses, with power to dispose of it, in the guarded' manner provided by statute, according to her own free will. Power is given to the court, upon petition in equity by any married woman, to appoint a trustee of her property, who may sue for, recover, and hold such property to the uses by law provided; and such trust is to continue during coverture, unless sooner determined by order of the court. This power is undoubtedly given to authorize the court, to enable the wife, through the intervention of a trustee, to assert and prosecute her rights, when, from opposition to her wishes on the part of her husband, or from other cause, she is unable to prosecute her just claim, without such aid. It is a power given to aid her in the management of her property according to hex-own free will; and though a trustee be appointed for this purpose, it was never intended by this power, that such trust should continue, when in consequence of a change of circumstances or of purposes on her part, its continuance would operate to compel her to a course, in regard to her property, which is against her free will.

From the evidence in this case it appears, that the trustee was appointed at a time when there was a separation of the husband and wife. Since the appointment, and since the proceedings were commenced in equity, the husband and wife have become reconciled, and are now living in harmony together. The wife now wishes a determination of the trust, and a discontinuance of the proceedings which are now pending, at her cost, on the bill in equity; and with a full knowledge of the effect of such course, declares her wish that the conveyances sought to be set aside, in the bill, shall remain as they now are. By the act concerning the property of married women, she can intrust the management of her property to her husband, and by joining with her husband make such conveyance of it as she pleases, or may take the rents and profits herself. "We do not see,why, if she chooses to be reconciled to her husband, and to manage her property in her own way, either by intrusting the care of it to him or by. assuming the managing it herself, if she acts without fear or compulsion or any undue influence of her husband, she has not this right, according to the spirit of the law. It certainly does not appear proper, that the court should enforce, by a continuance of the trust, in opposition to her wishes, a course in regard to her property, inconsistent with her right of managing it or disposing of it according to law.

The grounds on which the petition is opposed by the trustee are, the alleged insolvency of the husband of the petitioner, his alleged intemperate habits, and the naturally weak, unsuspecting, and confiding nature of the petitioner, and her limited education. The proofs offered in the case have failed to satisfy the court that any of these grounds can be sufficiently sustained to justify a refusal to grant the prayer of the petitioner, especially as, upon examination of the petitioner in open court, in the absence of her husband, we have perceived a persistent purpose and determined desire, on her part, that her trustee should be removed, that her property may remain subject to her own control. Under such circumstances, we think, the same discretion which dictated the appointment of a trustee, while she was at variance with her husband, that she might assert her claim to her property, would direct, now that she is reconciled, that the trustee be removed, that she may, without intervention, control her property according to her own free will.

Upon the reading of the above opinion, the whole matter was, by consent, referred to a master, to ascertain and report upon the state of the trustee’s account with the estate, he to allow the trustee all proper costs and charges in managing his trust, and in carrying on the pending suit against the husband, with a view to the dismissal of said suit and the removal of the trustee.