38 Miss. 205 | Miss. | 1859
delivered the opinion of the court.
The only question presented by the assignment of error here, arises out of the construction of the deed between Hugh W. Wormly, Mary Strode, and Thomas Strode, trustee, under which complainants in this bill claim to derive their title to the slaves in controversy. A demurrer was filed to the bill in the court below, which was sustained, and the bill dismissed.
The deed, so far as the same is material to be considered, is as follows: “ He, the said Hugh Wallace Wormly, has bargained, sold, aliened, and confirmed, and by these presents, doth bargain, sell, alien, and convey, and confirm, unto the said Thomas Strode, his heirs and assigns, all the above-mentioned estate, real and personal, and every part and parcel thereof, wheresoever it may lay, or howsoever it may be circumstanced. Provided always, and nevertheless, to such uses and upon such trusts, and to and for such interests and purposes, as is hereinafter mentioned, expressed, and declared of and concerning the same, that is to say, in case the said marriage takes place, (and) to (the) provision and settlement herein made and created by way of trust, the said Mary agrees and covenants, then and in that case, the said estate and estates, real and personal, to be settled on the said Mary and her children, legal issue, from her and the said Hugh Wallace Wormly, for her and
The complainants are children of the marriage between Hugh W. Wormly and Mary Strode, parties to the foregoing deed of settlement ; and they are seeking to recover slaves embraced in said settlement, which were sold by said Hugh W. Wormly in his lifetime, and in the lifetime of his wife, the said Mary, in violation, as it is alleged, of the terms of said deed, and of the rights of these complainants.
On the part of complainants, it is insisted that Hugh W. Wormly, by the terms of said deed, took only a life estate, with remainder to his children in fee; and with special power of appointment, by will, as to the division, amongst his children, and their heirs and assigns; and that, dying intestate without having attempted to exercise such power, said children took said estate as purchasers, subject to equal distribution among them.
On the part of defendants, it is urged that Hugh W. Wormly took a fee simple estate under the deed, at the death of his said wife, under and by virtue of the power reserved to him, of making division among the children, as he by will saw cause to direct.
Mary, the mother of complainants, died in 1848, and Hugh W., the father, died in 1856.
, This bill was filed in November, 1857.
Antenuptial marriage settlements, fairly made, are, under all circumstances, favored and supported by courts of equity; not only because they are benignly intended to secure to the wife, a certain support in every event, and to guard her against being overwhelmed
The most favorable exposition will be made of words, to support the intention of the parties, especially where there are children to be provided for, or in contemplation of the parties, at the time. 8 Georgia R. 284; Cowper, 714; 2 Parsons on Contracts, 15, 16; Hill on Trustees, 69, 70; 2 Tucker Lect. 403.
A settlement on a married woman, without a special agreement to the contrary, is always understood to invoke a provision for the children. Groves v. Glark, 15 Eng. Chy. R. 140; 8 Georgia R. 284.
An executory trust founded on marriage articles, is intended usually to provide for the issue. ■ Therefore, unless the contrary clearly appear, equity presumes that it could not have been the intention of the parties, to put it in the power of the parent to defeat the object of the settlement, by appropriating the whole estate. And on this presumption, the articles will usually be decreed, to be executed by limitations, in strict settlement. And it is immaterial that the words of the articles, if strictly followed, would entitle the parent to a more extensive interest, &c. Hill on Trustees, 328-9, note (e), and cases cited.
Marriage agreements, already executed, are subject to the same rules with limitations contained in other instruments. See 7 S. & M. 806. The court will therefore look to the lawful intentions of the parties, and endeavor to give them full effect.
The court will not readily adopt any construction, which would
Nor will it construe a naked power of appointment, of a special and limited character, into a power coupled with an interest, or into a power of revocation, so as to enable the party to defeat the “ great and immediate objects of the settlement,” by appropriating the whole estate to his own use, if any other construction more consistent with such usual and benign object, can be adopted consistently with the terms of the instrument.
In the case before us, it is evident that the husband (Hugh W. Wormly), by the conveyance to the trustee, Thomas Strode, intended to divest himself of the legal title to the property embraced in the deed of settlement, upon the marriage therein contemplated, in favor of his intended wife, and the children of the marriage, if she had issue, reserving to himself only a life estate in the jmofits, and the power of dividing the estate by will, among “ his children, their heirs and assigns,” as he might see cause to direct.
He declares the use for which said conveyance in trust is made, to be, that on the event of the marriage, the estate is to be settled on the wife and children, — the issue of the marriage, — for their use and benefit, until the death of the husband; and then, if she survive him, until the children respectively arrive at age, at which time each individual to take his equal share as the law has provided, leaving at least one-third of the estate in her possession during her life, and at her death the land so left in her possession to be divided among the children according to law,'and the personal estate according to her will. ,
Rut in case the husband shall survive the wife, he is to 'enjoy the profits and emoluments of the estate, during his life; and then it is to be divided amongst his “ children, their heirs and assigns, as he by will shall see cause to direct,” and then this trust to end.
So in like manner, if the wife shall die without issue, this trust to end. But if the husband shall die without issue, in the lifetime of the wife, she is to enjoy the whole estate for her life, remainder to the heirs of her husband (said Hugh), or as his will may direct.
In the meantime, under leave of the trustee, the husband is to occupy and enjoy the profits of the. estate, during his life; and
The marriage was consummated; these complainants are the issue of the marriage; the estate vested in possession of the tenants for life; the wife died ; and then the husband died, without making any division by will, intestate.
Let us now examine this deed, in reference alone to the contingencies which have ripened into actual events, and which must therefore control its operation.
And first: What are the rights of the children, — these complainants, — under the deed ?
The estate was settled on them and their mother, until the death of their father, and then the mother living, it continued in them, until and as each child arrived at age, when he was entitled to her equal share, according to law, &c.
But if the mother died, leaving issue, and the father living, he was to enjoy the profits and emoluments of the estate for life, and then, the estate to be divided among “ his children, their heirs and assigns, as he by his will might direct,” and then the trust to end.
The children, therefore, took a vested interest as purchasers, in any event, subject to the discretion of the father, only as to quantity.
What were the rights of the husband, on the death of the wife, under this deed ?
If she died without issue, the fee was to revest in him, and the trust to terminate. If she left issue, he was to enjoy the profits and emoluments of the estate during his life; and at his death he reserved the naked special power of appointment by will, — not in whom the estate should vest, for he had already settled it by deed, to the use and benefit of his children, and passed the legal title out of himself, so that by no possibility could he divest the children of the estate, — but as to the quantity or share that each child should enjoy. This naked power of division among his “ children, their heirs and assigns,” uncoupled either with an interest, a trust, or duty, was all that was left to, him at his death. He was not bound to exercise it. The vesture of the estate did not depend
1st. It is most apparent, therefore, on the face of this deed, that it was intended to secure the estate for the use and benefit of the wife and children, during the life of the wife.
2d. That an ultimate remainder of the whole fee to his children, their heirs or assigns, as purchasers, and not as heirs, was clearly designed.
od. That an equal division among them, according to law, was intended, unless some circumstance or casualty, addressing itself to parental care and discretion, might call for the exercise of the power of discrimination in the division, — reserved as an incentive to filial duty, as well as a protection against youthful folly, or misfortune.
4th. That the trust should terminate at his death, in favor of his children, is clearly expressed.
And, finally, that the trustee should execute conveyances to effect the object and intent of the trust, if such conveyances should be deemed necessary to terminate his legal estate, or vest it in the children, is also fully expressed.
These objects are apparent and lawful: the means provided to secure them are apt, just, and reasonable. The interests and powers reserved to the husband, are not only definite and consistent with the rights intended to be secured to the wife and children, but highly promotive of their best interests, in preserving parental authority.
Even if the legal title of these complainants had depended on the execution of the power, conferred on the husband by the deed, to divide the estate among the children, the mere omission to execute the power of division, would not in equity destroy their interest ; but the deed would be there held to operate a direct gift or conveyance of equal shares, to the objects of the settlement, within the power.
It is only in cases of naked powers, where no estate, either legal or equitable, has been conferred upon the donee of the power, or
Whenever, therefore, a trust arises, either by virtue of a legal interest in the donee of the power, or by imperative direption to perform the act as a duty, and the objects of the power are determinate, if the donee of the power does not execute it, a court of equity will not permit the estate, dependent on the discharge of such trust or imperative duty, to fail for the want of a trustee, or for his default. See 2 Tuck. Lect. 438-441, and numerous authorities there cited, both English and American; Hill on Trustees, 68-9, 70, and cases reviewed, and the tendency of modern decisions, to adopt in all cases a construction favorable to the objects of such powers, noted, and other authorities cited by counsel.
That this is an executed trust, and that property subsequently acquired will pass by this deed, if authority were wanting, see the case of Neves v. Scott, 9 How. U. S. R. 197.
We think, on the death of Hugh W. Wormly, by the provisions of this deed, the right to the possession and enjoyment of this property in dispute, in fee, became vested in his children as purchasers, and that the trust estate ceased and determined.
It follows from the conclusions at which we have arrived, in our investigation of this record, and the points relied on in argument, that the demurrer should have been overruled.
Let the decree be reversed, and cause remanded for further proceedings. t
