Clark v. Peck, 41 Vt. 145

Clark v. Peck

41 Vt. 145 | Vt. | 1868

The opinion of the court was delivered by

PiERPOXNT, C. J.

It appears in this case, that Tully A. Ciarle, one of the defendants, is the husband of Louisa Clark, the oratrix, and the son of Perez Clark deceased. Fessenden Clark, pne of the orators, is the'administrator, with the will annexed, of the said Perez Clark. Shubael Peck, the other defendant, is a judgment creditor of the said Tully A. Clark, seeking to collect his execution by the sale of certain property which he has taken thereon, claiming it to be the property of the said Tully A. The-orators claim that the said property belongs to the oratrix, Louisa Clark, being property or the product of property that was bequeathed by the said Perez Clark to her for her separate use. This bill is brought to restrain the defendants from disposing of the said property, and for its return.

*152The main question involved is as to the construction of that clause in the will of the said Perez Clark, by which the bequest is made to the said Louisa Clark.

The testator in his will provides for the payment of his debts and the support of his widow, and gives a specific legacy to Ms son Fessenden, and then says: “ I also give to my daughter, Sophronia Clark, one third of the residue of all my estate, both real and personal. I also give- the use of the other two thirds of my estate, both real and personal, to Louisa Clark, the wife of my son Tully A. Clark, so long as she shall remain Ms wife or widovst, and, when she shall cease to remain Ms wife or widow, to the lawful heirs of the said Tully A. Clark.” Does Louisa Clark take the property thus bequeathed to her, to her separate use, or subject to the marital rights of her husband ? The rule, as laid down by Judge Story and supported by numerous decided cases, is this : “ That, where, from the terms of a gift, settlement or bequest, the property is expressly or by just implication designed to be for her separate and exclusive use (for technical words are not necessary), the intention will be fully acted upon, and the rights and interests of the wife sedulously protected in equity but that the purpose must clearly appear beyond any reasonable doubt. -2 Story’s Eq., 608.

In ascertaining the intention of the testator (for that is always to be sought for in construing instruments of this kind), we are to be governed by the same rules, in a case like the present, as apply in all other cases of the construction of wills. We are not to look at the words alone to ascertain the intent, but the language used Is to be considered in connection with the situation of the parties, the surrounding circumstances, the subject matter, the object to be accomplished, etc.; as it is proper to do in the construction of all written instruments. This is too well settled to require argument or authority in its support. In applying this principle to the ca^e in hand, what aid do we derive from such sources ? The interest given by' the will to Louisa Clark, is only the use of certain (property for a specified period, and then the property itself •is given to the children of her husband. • She is not the child of the testator ; her husband is. They had children, and they and *153ibeir children were living together in harmony at the time the will was made. There is nothing to show any ill will on the part of the testator toward either. The natural course under such circumstances would seem to have been for the testator to give the property to his son, Tully A., either absolutely or for his life or the life of his wife, and then to his children. In deviating from this course and in giving the use to his wife, it is apparent - the testator had a purpose ; and it is difficult to conceive of any other purpose than that she should hold the property to her sole and separate use, to the exclusion of the marital rights of the husband. If the testator had supposed that, in giving this use to the wife, the legal effect would be to vest such use absolutely in the husband, would he have made such a provision ? If so, why not give it directly to the husband ? The legal effect is the same. Why go through the form of apparently giving her something, when in fact he gives her nothing ?

If the title to the property had been given to the wife, then there would have been something for the will to operate upon aside from its use; the title would have been in her, subject to the rights of the husband in its use, and we could reasonably suppose such to ■have been the intent of the testator. But here the use only is given, and that necessarily excludes the use of the husband. To have added to be held to Tier use, would have been mere repetition. If we hold that she takes it subject to the marital rights of the husband, we render the provision wholly nugatory so far as the interests of the wife are concerned, and make it impossible for her to avail herself of it in any form, and, also, defeat the manifest intent and purpose of the testator in making it.

We think the fair and just implication arising from the language of the provision, viewed in the light of the facts and circumstances always proper to be considered in such cases, is that it was the clear intention of the testator, to give the use of the property for the sole and exclusive benefit and use of the said Louisa; and this, too-, beyond a reasonable doubt.

If there was occasion for it, I think something might be said as to the reasonableness of the rule requiring that the rights of the wife, should be establisheci, beyond a reasonable doubt, as against *154tbe claims of tbe husband. Why she is not entitled to the benefit of a fair balance of testimony, as in other civil cases, is not quite apparent to me. I am aware of the old idea that the male is the superior branch of the human family, and that the rule referred to-bas its origin in that idea, and that all doubts are to be solved and all presumptions raised in favor of the husband and against the wife, so far as her property is concerned.

This idea and the rules that sprung from it, had their origin in a period -much nearer the days of semi-barbarism than the present; and as civilization and Christianity have advanced in the world, the public mind, as evidenced by both legislative and judicial action, has become much more inclined to place the rights of the wife more nearly upon an equality with those of the husband, in respect to property. The court of chancery in this state is constantly extending its action in aid of the rights of the wife to her separate property.

It appears from the bill, answers and proofs, that, after the decease of the widow of the testator, to whom he gave all his property during her life, the said Louisa, with the consent of the administrator 'as aforesaid, went into the possession of the said two thirds with her said husband and children, and still continues to occupy the same, claiming to have the sole and exclusive right to the use of the same, her said husband acquiescing therein ; that she bargained with the said Sophronia for the purchase of the other third of the real estate of the said Perez, took a bond for a deed, and paid a part of the purchase-money out of her own money, being the proceeds of her two thirds of the said estate, and took the possession ; that the said Louisa and her husband both treated and regarded the use and product of this property, as the separate .estate of the said Louisa, the said Tully A. disposing of the product only with her consent and under her direction, and applying the proceeds in the support of herself and family, and, by her directions, in payments toward the share of the said Sophronia.

The right to the' use of this property being in the said Louisa, and she being in the possession and occupation thereof, she is clearly entitled in equity to the products thereof, and to be protected against any attempt on the part of the creditors of her husband to a *155deprive ber of them. Her title under the will was a matter of record. She was in possession, and that was at least constructive-notice to all the world of her right.

The property taken by the said Peck, consisted of hay, and grain in the straw, which grew upon the said premises, and were on them when taken; a yoke of oxen and ahorse, which the said Louisa purchased with her own money, obtained independently of her husband, and which were in her possession on the farm; a wagon and harness, which belonged to the estate of the said Perez, the use of which passed to the said Louisa, and were in her possession; two steers, two cows and two heifers, which were grown and raised upon the-said premises and were a part of the proceeds, product or income thereof.

There is nothing in the case to show that the said Tully A. ever-owned any part of this property, or ever paid a dollar toward its purchase or procurement, or ever claimed to own it, or ever exercised any acts of ownership over it except as subservient to her rights as its owner.

Under such circumstances, we think it inequitable that the creditors of the said Tully A. should come in, and seize that property, and dispose of it in payment of Ms debts; and the said orators, having come into a court of chancery, and asked to be relieved' from the attempt of the defendants to do so, we think they are entitled to the relief prayed for.

Decree of the chancellor affirmed.