It is conceded that the limitation implied in the words, to their use and benefit, will not alone make this a separate estate. A limitation to the separate or sole use of a feme has been held sufficient. 1 Beav. 34, 4 M. & C. 377. The testator clothes the trustee with the legal estate of each daughter's share, and puts him in possession and also authorizes and directs him to invest it in such property as, in his judgment, may be most conducive to their comfort and interest, and requires the title of the property when bought, to be made to him, as trustee, for their use and benefit. From the mode of managing the share of his daughter, prescribed by the testator, to her trustee we infer, necessarily, that the estate was intended for her separate use. The testator intended that it should be held by the trustee, for her use, against the right or title which a future husband might acquire by marriage. This is consonant with the reason of the thing. Not only is the fund left with him, to be invested according to his discretion, with reference to the comfort and interest of his daughter, but he is required to have the title to the investment made to him, as trustee, for her use. This direction unequivocally indicates the purpose of the father to create a trust, and to hold it up, that his daughter might be the sole beneficiary of his bounty. The very thing which seems to be guarded against is a title and man. agement of the property in anybody else. No doubt the title of a future huband was just what he had in view The right of investment (and of re-investment, which we think is implied), and the directed tenure of the title, is incompatible with a purpose to let the property take its usual course, upon the event of marriage. The title, in the event of marriage, could not be in the trustee and the husband at one and the same time. Which, then, should yield, the marital right or the intention of the testator? Clearly the former; because in the construction of wills, the intention of the testator must be carried out, unless in violation of law. There is no law violated in the creation of an estate which defeats the marital right. The testator left it with the trustee to determine what kind of investment would most conduce to the comfort and interest of his daughter; that discretion is defeated, if the husband may sell the interest. Indeed, if he can do this, then the creation of the trust, and all the powers of the trustee, are nugatory. But it is said that the trust was fully executed when the daughter married - his powers being only such as appertain to a testamentary guardian. Such a limitation of his powers cannot be inferred from the will, and seems to be gratuitous. Why appoint a trustee at all? Why not leave the share of his daughters with the executors? Why not say that Mr.Fears is to be her guardian, eo nomine, if such was the intention of the testator? The case is one where extreme legal subtlety must be invoked, to arrive at a result manifestly repugnant to the intention of a testator. We will not labor, with far-fetched learning, to defeat a father's purpose in making provision, at death, for his child, when such purpose, if carried out, contravenes no law of the land. We are, moreover, clear that the daughter herself is restrained from alienating this property.
(4) A married woman, unless restrained in the settlement, is a feme sole as to her separate estate. Wyly et al. v. Collins & Co., 9 Ga. 223. If altogether restrained, she has no power of alienation; and if partially restricted, she is a feme sole, sub modo, and must alien alone according to the restriction. If, for example, she is forbid to dispose of her separate estate, without the consent of her trustee, a disposition without his consent is invalid. Weeks and Wife v. Sego and another, 9 Ga. 199.
If there is a prohibition against alienation, it is a part of the separate estate, and must stand or fall with it. And it is no objection to the validity of the restriction, that the woman is unmarried at the time of the creation of the trust. 1 Beav. 1; 4 M. & Cr. 290; 1 Beav. 34; 4 M. & Cr. 390; 4 M. & Cr. 377.
(5) It has been held that nothing short of an express negative declaration, will suffice to deprive a feme covert of her right of disposing of her separate estate. This rule seems to be stringent. Wills in reference to this very point are more liberally construed than deeds. If the intention to restrain the power of alienation be clearly collected from the several clauses of a will, they will all be construed together, and effect will be given to the intention Bag-gettv. Moore, 1 Coll. 138. There is no reason why the intention of a testator to restrain alienation should not be collected, just as intention is ascertained in regard to anything else; nor is there any reason why intention to restrain should not be enforced as well as any other intention. In this will there is no express prohibition against alienation, but it is plainly the intention of the testator, derived from the several clauses in relation to this estate, to restrain his daughter from disposing of it.
The reasons already stated to prove this to be a separate estate, demonstrate a purpose to prohibit its alienation by the daughter. The great reason is this, to wit, the power of alienation is expressly given to the trustee; he is authorized to invest the fund derived from the estate, to buy and sell, and such a power is wholly incompatible with the same power in the woman. He is directed to take the titles of the investment in himself - if he must take, he must hold them; and this authority is inconsistent with 'a power to sell in the woman. Direction to manage the fund, by investing it according to his judgment, and to take the titles of the property bought as trustee, negatives the idea that the testator left the power to dispose of it in his daughter.
The demurrer, we think, therefore, ought to have been sustained, and we reverse the judgment of the court below.