12 Ga. 195 | Ga. | 1852
By the. Court.
delivering the opinion.
Whether the demurrer to the bill ought to be sustained or hot, depends upon two questions.
Second — If the will creates a separate estate in the daughter, does it at the same time restrain her power of alienation ? If it does not, as she joined with her husband in the assignment to Brooks, his title is good, and he ought to recover.
[I.] As to the first, I remark, that a separate estate may be made in a feme sole, as well as in a married woman, which, upon marriage, will be good against the marital right; and this, although no particular marriage be in contemplation. Upon marriage, the trust will immediataly attach upon the property, so as to exclude the husband’s title, although no further settlement be executed. Anderson vs. Anderson, 2 M. and R. 427. Davis vs. Thorneycrof, 6 Sim. 420. Tullett vs. Armstrong, 1 Beav. 1. 4 M. and Cr. 390. Scarborough vs. Bowman, 1 Beav. 34. 4 M. and Cr. 377.
The contrary was held by Lord Cottingham, in Massey vs. Parker, 2 M. and R. 174. In that ease, it was ruled, that when property is given or settled to the separate use of an unmarried woman, it vested in her husband upon her marriage. In the subsequent cases of Tullett vs. Armstrong and Scarborough vs. Bowman, his decision was overruled; and in affirming these decisions on appeal, Lord Cottingham bverruled himself. 4 M. and Cr. 377. So the doctrine is to be considered settled, as first stated.
[2.3 The interposition of a trustee to protect the separate estate, was at first deemed essential, because the interest of a married woman is the subject only of equitable cognizance. Harvey vs. Harvey, 1 P. Williams, 125. S. C. 2 Vent. 659. Barton vs. Pierpont, 2 P. Williams, 79. It is, however, now settled that a separate estate may exist, without the intervention of trustees. In that case, the husband will take the legal interest, but Equity will treat him as a trustee for his wife. Bennet vs. Davis, 2 P. Will. 316. Barley vs. Barley, 3 Ath. 399. Lee vs.
The better course is to provide a trustee. 2 Roper. H. and W. 152. In this case, the testator appointed a trustee.
The intention, however, to create a separate estate must be clearly expressed. Lord Brougham held, in Tyler vs. Lake (2 R. and M. 189,) that the expressions must be such as “leave no doubt of the intention, and which forbid the Court to speculate on what the probable object of the donor might have been.” Taking this stringent rule as our guide, we think that a separate estate was created by the will now under consideration, and that there really is no room to speculate about what the object of the father was, in the provision which he made for his daughter. There are two clauses of the will which bear upon the question. The testator, Andrew Hall, divides the residuum of his estate equally among his nine children, and directs that “ the shares of his daughters be paid over, by his executors, to the trustee afterwards appointed, for their use.” The seventh item of the will appoints Mr. Fears trustee for his daughters, one of whom, Amanda, after his death, intermarried with Cate, who assigned her interest in the estate to Brooks, the- complainant. The duties of the trustee, he proceeds to define thus — “ to receive from and receipt to my executors for the distributive share due to each of my daughters, and to be vested by him in such property as, in his judgment, may be most conducive to their comfort and interest, and to have the titles to such investment made to him, as trustee, for their u'se and benefit.”
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. and Cr. 377. The testator clothes the trus
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. and Cr. 290. 1 Beav. 34. 4 M. and Cr. 390. 4 M. and Cr. 377.
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.