17 Johnson (N. Y.), 548. - 1820.
Appeal from the Court of Chancery. Mary Jaques, deceased, was the wife of appellant, John D. Jaques. Prior to her marriage, being the owner of a large amount of property, a marriage-settlement was made, by which the said Mary conveyed all her real and personal estate to one Cruger to the use of said Mary, until the marriage should take place and after the marriage for her sole and separate use, free from the control of her husband and at her absolute disposal. Mrs. Jaques afterwards conveyed her interest to Robert Jaques upon certain trusts - among other things to pay over one-third after her decease to the Trustees of the M. E. Church. This is a bill for an accounting against John D. Jaques who is alleged to have obtained for his own use a considerable part of his wife's property, real and personal, during her life, with her consent and for his own use.
Spencer, Ch. J. * * * It appears that Mrs. Jaques was the owner of considerable real and personal estate; and it does not admit of a doubt that her object in making the deed of settlement, was to guard against the legal effects of a marriage, which, by operation of law, would divest her absolutely of her personal estate, and take from her, during the coverture, all control over her real estate. Her motives could not be to guard against herself, but to retain dominion over her estate, and to prevent her intended husband from intermeddling with her estate any further than she was pleased to allow.
The deed of settlement is upon the trust, that the trustee should permit her to hold, enjoy and let the premises conveyed, and receive and take the rents and profits, and that her receipts should alone be sufficient discharges; so that the same should not be subject to the debts, control or intermeddling of her intended husband, but should be to the only use, benefit and disposal of her, during her natural life, and then to the use of those to whom she should grant or devise the same, by her last will and testament, lawfully executed. The question is, whether Mrs. Jaques, with respect to her estate, is not be regarded in a court of equity as a feme sole, and may not dispose of it as she pleases, without regard to her trustee; there being nothing in the deed of settlement requiring the consent or concurrence of her trustee, nor any negation of an unlimited power of disposition of the estate by her.
I have examined this case with the unfeigned respect which I always feel for the learned chancellor who has denied the right of Mrs. Jaques to dispose of her estate without the consent or concurrence of her trustee; and I am compelled to dissent from his opinion and conclusions. From the year 1740 until 1793 (with the single exception of the opinion of Lord Bathurst in Hulme v. Tenant, which occurred in 1778, and in which case a rehearing was granted by Lord Thurlow and the opinion reversed), there is an unbroken current of decisions, that a feme covert, with respect to her separate estate, is to be regarded in a court of equity as feme sole, and may dispose of her property without the consent or concurrence of her trustee, unless she is specially restrained by the instrument under which she acquires her separate estate. * * *
The mistake into which I think the chancellor has fallen consists in considering Mrs. Jaques restrained from disposing of her estate in any other way than that mentioned in the deed of settlement. The cases, in my apprehension, are clearly opposed to this distinction; and I am entirely satisfied that the established rule in equity is, that when a feme covert, having separate property, enters into an agreement and sufficiently indicates her intention to affect by it her separate estate, when there is no fraud or unfair advantage taken of her, a court of equity will apply it to the satisfaction of such engagement. * * *
This is the first case in which the power of a married woman having separate property, to dispose of it at her will and pleasure, when not expressly restrained in the mode of exercising that will, has arisen in our courts. I confess that my partialities in favor of marriage settlements are not so strong as to induce my desire to see the law altered. Generally speaking, the rules of the common-law, which give to the husband all the wife's personal property, and the rents and profits of her real estate during coverture, are better calculated, in my judgment, to secure domestic tranquility and happiness, than settlements securing to the wife a property separate from and independent of the control of the husband. An improvident and dissipated husband may squander his wife's property, and reduce both of them to penury and distress. On the other hand, the possession by the wife of property, independent of and beyond the control of the husband, would be likely to produce perpetual feuds and contention. Marriage is a union of persons and interests, pro bono et malo, and the ancient provisions of the common law show forth, in our own country, decisive proof of its benign and salutary influence. I have all along intended to be understood that the disposition by the wife must be free, neither the result of flattery, nor of force, or harsh and cruel treatment; and in the present case there is no evidence that Jaques treated his wife with unkindness, or employed any censurable means to induce her to bestow her bounty on him; on the contrary, the evidence is that he uniformly treated her with kindness and affection.
It necessarily results from the power which I suppose Mrs. Jaques to have had over her property, that she might give it away, without any formal act, in the same manner as though she had been sole; and her agreement that the family expenses were to be borne out of her estate, especially when executed by her, was a valid act. She was well situated as regards property, while her husband was in quite moderate circumstances. She chose, after the marriage, to maintain her former equipage, and the husband acquiesced in her wishes. It would be extremely hard and unjust to throw upon him the charge of her establishment, when it is clear that she meant to defray the expense of it herself. My opinion, accordingly, is that the agreement is valid, and that the husband is not only not to be charged with any sums of money expended for the maintenance of the family, but that he is to be allowed for all advances for that object; and also for moneys advanced for necessary reparations to her estate. * * *
Kennedy, J., in
1 Wharton (Pa.), 514. - 1836.
The chief question here is settled by the principles laid down in the case of Lancaster v. Dolan, 1 Rawle, 231. In that case, the conveyance to the trustees was upon trust "to permit the party, (who at the time was feme sole, but contemplated being married), to use, improve, occupy, possess and enjoy; and to receive all and singular, the rents, issues and profits," and it was considered that the trustees took the estate with the use executed. The Chief Justice who delivered the opinion of the Court, says, "a use thus limited to any other than a married woman ox feme in contemplation of marriage, would be executed; but it is immaterial whether the trust be to pay a married woman the profits, or to permit her to receive them, it being necessary to a separate provision, that the legal estate should remain in the trustees, to prevent the husband from taking the profits, and defeating the very object of the conveyance." It is certainly true, that a distinction has been made between a devise to a person to pay over the rents and profits to another, and a devise in trust to permit another to receive the rents and profits. In the first case it has been held that the legal estate should continue in the first devisee, so that he might perform the trust, because without having the control of the estate he could not receive the rents and pay them over as directed. Neville v. Saunters, 1 Vern. 415. But in the second case, it has been adjudged that the legal estate is vested by the statute of uses in the person who is to receive the rents. Boughton v. Langley, 2 Ld. Raym. 873. This distinction, however, as the Chief Justice has said in Lancaster v. Dolan, does not exist in the case of a feme covert, where the estate is conveyed or devised to trustees for her separate use. The courts in such case will, if possible, construe the grant or devise, so as to vest the legal estate in the trustees, for the purpose of carrying into execution, in the most effectual manner practicable, the intention of the donor. Harton v. Harton, 7 Term. Rep. 648; 1 Cruise's Dig. tit. 12, Trust, ch. 1, pl. 15, page 456, and pl. 19, page 457. As to the intention of donor in this case, there can be but one opinion respecting it. It is the most unequivocally declared to be to give the wife the separate use and benefit of the estate during her natural life, without subjecting it to the control of her husband, or to liability in any way whatever, for the payment of his debts. This being the intention expressed in the deed, it is manifest that it would be entirely defeated, if it were to be held that the use was executed in the wife; for this would be putting the estate under the control and direction of her husband, so as to enable him to take the rents in despite of her, and to dispose of them as he pleased. The design, therefore, of the donor can only be carried into effect by considering the. legal estate as vested under the deed in the trustee. That this was intended is still further indicated by the clause giving the wife the power to dispose of it for the benefit of herself and children, which requires the trustees, in case of such disposition being made by her, to execute such writing as should be required by law to carry it into effect; which could be of no avail, and was unnecessary, unless he thought he was investing him with the legal estate.