29 Mo. App. 625 | Mo. Ct. App. | 1888
TYe will first consider this case with
Bishop, in his work on Married Women (vol. 1, sec. 870), explicitly predicates the capacity of the feme covert “to charge the estate with a specific debt or agreement,” as “the lesser power” growing “out of the power which she has to dispose of her separate estate, or of the income thereof.” And in section 872, he further says: “It is but reiterating, in another form of words, to say, that if a married woman has the authority to convey her separate estate, she can, therefore, pledge or charge it. with a debt or other engagement, whenever she employs express terms, or those which necessarily carry with them this intent.” This is so recognized by the following authorities: 1 Lead. Cases Eq. 399; Story Eq., sec. 1397; Whiteside v. Cennon, 23 Mo. 457. I am aware of the language and ruling in Martin v. Colburn, 88 Mo. 229, where it was
The courts universally recognize that the power of' appointment, which is but the synonym of creating a charge or pledge, may be restrained by the language of the instrument creating the estate. Schouler Dom. Bel.,’ secs. 131-139; 1 Bish. Mar. Worn., secs. 846-859-868. As said by McKinney, J.,in Litten v. Baldwin, 8 Humph. 209-214: ‘c It is laid down as the settled doctrine upon this • subject that the extent of the power of a married woman over her separate estate depends upon the terms of the deed or settlement; she is to be regarded as a feme sole only so far as the deed has expressly conferred upon her the power of acting as such; she can exercise no authority or control over her separate property, excex>t such as is specially given in the deed, and only in the mode therein prescribed.”
So Ch. Kent, in Church v. Jacques, 3 Johns. Ch. 77-113, asserts that when the estate of the wife is created by written instrument, she “is to be deemed a feme sole, sub modo, or to the extent of the powers clearly given by the settlement.” He further declared, that when the instrument creating the trust “says that she is to receive from her trustee the income of her property, as it from time to time may grow due, it does not mean that she may, by anticipation, dispose at once of all the-
Without going so far as to ass,ert that Mrs. Brockenbrough could not by contract create a charge on the already accrued interest, on the trust estate in the hands of the trustee, which the trustee would be bound to pay over to her, I maintain that she cannot, in the manner claimed by the plaintiff here, thus dispose of, by way of equitable charge, the income to accrue in the future, for two reasons: First, it would be by way of anticipation, in contravention of the scheme and purpose of the donor; and, second, because no charge upon a separate estate can arise where the estate itself is not in esse at the time of the contract. The evidence in this record wholly fails to show that, at the time the notes in -question were executed by Mrs. Brockenbrough, or even at the time the suit was brought, there was one dollar of accrued interest due on the trust fund, much less that any such interest was then in the hands of the .trustee. On the contrary, the proof was, that even at the time of entering the decree the interest sought to be charged was outstanding, merely owing by the, debtor, and might never be collected.
It is true that the doctrine of anticipation is more peculiarly an English rule, and is predicated usually on express provisions of the creative instrument; but it, névertheless, may arise in a case where there is no such express provision, as where, from the whole tenor and purpose of the settlement, it is apparent that it was the design of the donor to create an annuity for the benefit of the wife and her children, during her natural life, and at her death to go to her children, and to no other use. Freeman v. Flood, 16 Ga. 528; 2 Perry on Trusts, sec. 670; Church v. Jacques, supra. Under the provisions of the will, Todd, the executor and trustee, could not be compelled to pay on an order, by anticipation, the interest thereafter to accrue. It would be
Again, the action to subject the separate estate of the feme covert to the payment of her debts is essentially a proceeding in rem. It is to reach specific property, which equity implies she intended to pledge or charge with the payment of the debt contracted. The jxetition in such action must set out the property so intended to be charged ; and, of consequence, that prop^ erty must be in existence, so that if execution went instanter there would be a res for the judgment to operate upon. Neither the petition nor the decree could be by anticipation of something yet to come into being. The very idea that a contract made by a feme covert, which at law is void for the lack of power to make a contract binding in personam, may yet hold good in equity, is bottomed on the fact of an existing separate' estate intended to be pledged by her to its satisfaction. So, if the proposition could be maintained that such a. contract could be enforced in equity against a future acquired separate estate, it would not be necessary that the feme covert should have any separate estate at all at the time of the execution of the contract, or even expect that she would have any thereafter.
The notes in suit, for example, became due, respectively, in December, 1884, and March, 1885. A cause of. action arose on them at the instant of their maturity. Had suit then been brought, and Todd had not even loaned out any money, and no interest had then accrued, on what would a judgment against Mrs. B. have' operated ? There would have been no res. How, then, could the court find by its decree that, at the time of the making of the notes, Mrs. B. had a separate property which she intended to charge with their payment,, and proceed to make a decree in rem? How could'a petition describe a thing not yet created ? To say that.
So it is said, in Coon v. Brook, 21 Barb. 548: “In .such actions the complaint should show the nature of the debt, and that the wife had a separate estate when ■ she contracted it; and the nature, situation, and value ■of such estate, or of that portion thereof she has at the time the action is commenced; and that the wife made, •or intended to make, the debt a charge upon such estate .at the time she contracted it. A married woman can ■only incumber or charge property which she owns at the time she contracts debts. Her promises to incumber future acquisitions are void. The creditor can only reach property she owns when the debt is made. He cannot touch what she may afterwards acquire.”
Our conclusion, therefore, is, that so much of the •decree as pertains to the defendant, Todd, is not maintainable.
II. The remaining question is as to that part of the decree which subjects to the debts in controversy the personal property purchased by Branham, as trustee, for Mrs. Brockenbrough. The money with which Bran-
It was not, therefore, competent for the cestui que trust to make any contract by which the title to this property could, by the decree of any court, be taken from the trustee; thereby destroying the very corpus itself, out of which it was the plain design of the donor to make provision for the continuing maintenance of his sister and her children. By selling the property itself, as
It is difficult, if not impossible, to say from the evidence or the decree, whether any, or what portion, of the property bought by Mrs. Brockenbrough at the executor ’ s sale was embraced in the decree of the court. If, in fact, it covers any or all of that property, there are other insurmountable legal obstacles in the way of upholding it. .
At common law the property bid in at that sale by the wife would have become, jure ma/riti, the property of the husband, in which she would have no separate estate. •Walker's Adm'r v. Walker, 25 Mo. 130. Under the married woman’s act (Rev. Stat., sec. 3296), to constitute it her separate estate, it was not enough that she should have bought it, but it was indispensable that the proof should go further and show that it was paid for out of her separate estate. McCoy v. Hyatt, 80 Mo. 130. At the time the notes in suit were given, the property .bought at the executor’s sale had not been paid for. There was only a promise to pay. She then had no separate estate in the property. Afterwards, the trustee, Branham, paid off the purchase money out of the trust fund in his hands. By the express provision of the trust instrument under which Branham took this fund, he was prohibited from applying it to the payment of any such existing debt. No matter what his antecedent parol understanding with the donor may have been, it was merged in the expressed provision of the trust deed prohibiting him from so using it. If he departed from the obligations and limitations of his office, that gave no creditor of the cestui que tncst the right to seize upon the property contrary to the command of the-trust instrument.. Especially ought not a court of equity, whose peculiar province it is to protect and preserve the trust fund, to lend its aid to the wrongful perversion of it. However just may be the claim of the plaintiff to have payment for the use of her farm, and
This being a decree in equity, which, unlike a judgment at law, is divisible (Dickerson v. Chrisman, 28 Mo. 134), the judgment against Mrs. Brockenbrough being in personam is manifest error, and the same is reversed, as is also the judgment in rem against the defendants, Todd and Branham. The judgment as to the other defendants, not appealing, remains intact.