Imlay v. Huntington, 20 Conn. 146

Imlay v. Huntington

20 Conn. 146 | Conn. | 1849

Stores, J.

The only question presented to us, in this case, respects the liability of one of the defendants, Mr. Huntington, to a decree for the payment of the moneys received by him under the wills of the grand-father and aunt of his wife, and which, by the terms of the ante-nuptial agreement between Mr. and Mrs. H., were to be paid over by him to the defendants, John and Janies Morgan, as her trustees. No decree is claimed against those trustees, and they, therefore, may be laid out of the case as defendants.

1. That agreement was not, as claimed by the plaintiffs, a marriage settlement, technically so called, by which the interest of Mrs. H., before her marriage, in a part of the moneys to which she was entitled under those wills, was vested, previous to such marriage, in trustees for her use. It contemplated that the legal interest in those moneys should, on the marriage, vest in the husband, as it would, by virtue of the marriage ; and that he should, in that capacity, collect them, and thereupon pay them over into the hands of the persons named in said agreement as the future trustees thereof; and that such trustees should, on the reception thereof, thereafter hold and invest them in trust for her, according to the provisions of the agreement. The trust was not to attach to those moneys until they were thus paid over by Mr. H. to the trustees. The agreement, therefore, was merely executory in its character, resting in covenant alone, by which the husband was not to be a trustee, but was bound to collect said moneys and pay them over to John and James Morgan, who were thereupon, and not before, to become such trustees.

*164This agreement, of course, remained thus executory, until said moneys should be, by Mr. H., paid over to said trustees according to the agreement. Therefore, the mere reception of those moneys, by him, did not constitute an execution of the agreement, which would discharge him from his obligations created by it. And on his neglect to pay over these moneys to the trustees, pursuant to his covenant, after he had received them, she would have had a remedy through and in the names of her trustees, by an action at law, or might herself, in a court of equity, have enforced its specific execution. Or it was competent for her, after these moneys had been received by her husband, and before the agreement should be executed, by his paying them over to the trustees to hold, on the trust provided in the agreement, to discharge her husband from the further fulfilment of the agreement, and to abandon the trust, in the same manner, and to the same extent, as if the agreement were of an ordinary character, and she had remained discovert; because it cannot be doubted, that, by a just construction of the ante-nuptial agreement, its effect was, to give to Mrs. H. the sole and separate use, after her marriage, of the moneys so received and paid over by her husband, and therefore to invest her, in a court of equity, with the character and powers of a feme sole in regard to the disposition of them. This power, thus vested in her, to discharge the execution of the agreement, and to abandon the trust, would, of course, be subject to the qualification that there were no terms or stipulations in the agreement, legally valid and operative, to restrain her from so doing. It would be undoubtedly competent for her, before her marriage, and while a feme sole, even with respect to her own absolute property, to enter into a contract to convey it, for a legal consideration, on such terms, that it should subsequently remain for her separate use, with such restrictions upon her controul over it, as she should see fit to impose on herself: but, independently of any such restrictions, when it is limited to her separate use, she retains in equity, after marriage, the same power of disposition over it, both as to the manner in which, and the, persons for whose benefit, such power is to be exercised, as she would have, if she had remained unmarried, or if such agreement had not been made. And it is competent for her to exercise this .power, equally in favour of her hus*165band, or any other person ; although a court of equity would look upon the exercise of such power in favour of her husband, with peculiar jealousy, and would, therefore, refuse to sanction it, unless upon the most satisfactory proof that it was not induced by any undue influence, or improper conduct on his part.

On this question, whether it was competent for Mrs. H., as between her, or her husband claiming under her, and her brothers, or their representatives, (the plaintiff's here being one of said brothers, and the daughter of another,) to discharge her husband from the performance of this ante-nuptial contract, and the trust contemplated by it, we are of opinion, that there is nothing in the contract which had the effect of preventing Mrs. H. from so discharging the execution of it, or abandoning such trust, in favour either of her husband or of any other person, as she should deem fit. The only stipulation, by which the plaintiffs claim that she was so restrained, is that by which it is provided, that, upon her decease, the amount in the hands of the trustees shall descend to her heirs at law, unless she shall, by her will, otherwise appoint and direct. They claim, that, as no such disposition was made by her, of the moneys contemplated by said agreement tobe vested in the trustees, her heirs, by the terms of the agreement, became entitled, on her decease, to those moneys. This claim involves the broad question, what is the true construction and effect of this agreement, and of the trust contemplated by it; whether it restricts Mrs. H. to such a disposition of the moneys as is expressly authorized by the instrument, or whether, notwithstanding particular modes are therein pointed out, by which she might dispose of them, she might not, by virtue of the general right of disposition which appertains to the absolute ownership of property, make any disposition of it, which is not therein expressly, or by necessary implication, prohibited : and also, whether the acts, which were done by her in relation to them, were not, by a fair construction of the instrument, expressly permitted. We do not propose, in this place, to consider this question, partly because an examination of it may be more conveniently postponed until we shall view the case in another aspect, but principally because it is unnecessary to do so here, by reason of another answer to this claim of the plaintiffs, *166which, we think, is entirely conclusive. It is, that the plain-tins, claiming here as parties virtually to this agreement, and not through Mrs. Huntington, are mere volunteers as against Mr. H., who claims under and in right of his wife ; and that the plaintiffs, therefore, can no more enforce any stipulation in the agreement against him, standing in that situation, than they could against Mrs. H. herself. It is to be borne in mind, that this was a contract made between Mr. and Mrs. H. before their intermarriage, respecting the settlement of property of which she was the absolute and exclusive owner, and over the disposition of which she, consequently, then had the most unlimited power. Being by this contract constituted in equity a feme sole, with respect to it, after her marriage, she retained such power of disposition over it as she would have had, were it not for the execution of the contract, excepting so far as such power was curtailed or taken away, by the terms of the contract itself; and, as has been already remarked, it was competent for her to impose on herself any restraint which she should see fit. But, as against whom would she be bound, by that restriction ? Or, in other words, who could take advantage of it, so as to enforce it, while the agreement remained executory ? Clearly Mr. H., her husband, alone, or, at the most, the issue of the marriage also, who only would be deemed to come within the influence of the consideration of marriage upon which said agreement was founded. It is a well settled general principle, that a court of equity will not enforce the execution of an agreement which is not founded on a valuable consideration ; and this principle applies even to agreements under seal, because a court of equity regards the substance, and not the . mere form, of a thing. In respect to marriage articles, this principle has been somewhat relaxed. These agreements, being founded on marriage, which is deemed a valuable consideration, will, of course, be enforced at the instance of the husband or wife, who are parties to such agreement. It is likewise settled, that they may be enforced also, unless, perhaps, against the settler, by those who are within the scope of the marriage consideration, although not parties to the agreement, and therefore, strictly speaking, volunteers. But none are considered-to be thus within the scope of such consideration, excepting the wife, the children of the marriage *167and their descendants, or those who claim through them. This exception to the general rule, in favour of the wife and children, is founded on the reason that for them the settler is under a natural and moral obligation to provide. This reason, however, is not applicable to a brother or sister ; and we do not perceive, therefore, why the general rule should not be applied as well to them as to any other volunteers who are strangers to the consideration of the agreement. And we have not found, nor have we been referred to, any authority, which places them on any better ground than ordinary volunteers as to their right to claim an execution of marriage articles. Atherly on Marriage Settlements, 125. & seq. 1 Story Eq. p. 414. § 433. Stackpoole v. Stackpoole, 2 Conner & Lawson, 489.

To the claim of the plaintiffs,-that they are entitled, independently of the ante-nuptial contract, as the heirs of Mrs. Huntington, to the moneys contemplated by it to be paid to the trustees for her separate use, it is a conclusive answer, that if, as against the plaintiffs, it was competent for her to abandon that contract and relinquish the trust provided for in it, and she has done so, the effect of such abandonment and relinquishment would be to destroy her separate estate in those moneys ; because they would not become her separate estate after her marriage, excepting by virtue of the agreement, and, consequently, would cease to be such, when such agreement and the trust contemplated therein were abandoned ; and on such abandonment and destruction of her separate estate, the property therein would vest in her hus band. And the right of her heirs, as such, would instantly cease, when it ceased to be her separate estate ; beause their right, as Such heirs, is founded solely on the ground, that by her having a separate estate in the property, she is in the situation of a feme sole in regard to it.

The only enquiry which remains, on this view of the case, is, whether Mrs. H. abandoned and relinquished the ante nuptial agreement and the trust contemplated in it, in favour of her husband.

On this question, which is one merely of fact, the evidence need not be of atechnical character. No written instrument is required, in order to constitute such relinquishment. It may be proved, by any legal evidence, of whatever charac *168ter, which is sufficient to satisfy the mind of its existence. Pawlett v. Delaval, 2 Ves. 669. See also 11 Verm. 549. 2 Aikin, 427. 7 Johns. R. 476. We do not propose to exam, ine the evidence in this case on this question in detail. It consists of a great variety of conduct on the part of Mr. and Mrs. H. in relation to the management, expenditure, appropriation, and investment of the fund ; of the conduct of the trustees, named in the articles, in regard to it : and of the most explicit declarations by Mrs. H. respecting these subjects ; such declarations having been made with a full knowledge by her of all that had been done by Mr. H. and the trustees, which, taken together, lead irresistibly to the conviction, that from the time when this fund was received by Mr. H., the original design of him and his wife, when the contract was executed, of placing it in the bands of trustees for her separate use, and the other purposes mentioned in it, was entirely relinquished ; and that it was her intention to abandon any separate interest in the property, and to give it absolutely to her husband ; and that it was ever afterwards, with her full knowledge, approbation, concurrence and authority, evinced in every practicable manner in her power, and treated, in every respect, by him, as if it were absolutely his own. Nor is there the slightest evidence to show, that she was induced thus to part with her separate rights in the property, by any fraud, compulsion, undue influence or improper act on his part. On the contrary, the proof clearly shows, that she was prompted to this course, by an affection, heightened by the most uniform and devoted attention, on his part, to her feelings and wishes, and his most incessant efforts to promote her, com fort and happiness.

In this view of the case, we are of opinion, that, in respect to these moneys thus received by Mr. H. from his wife’s estate, he is in no manner accountable to the plaintiffs.

2. If, however, this case is considered in the most favoura-ble aspect for the plaintiffs, and it be conceded, as claimed by them, that they are, by the terms of the agreement, to be deemed, not mere volunteers, but purchasers, for a valuable consideration, of the property, which, by the provisions of that agreement, was to be settled in trust for the separate use of Mrs. H., subject to the rights reserved to her, by the true construction of the agreement; and that, as against them, it *169was not competent for her to discharge the execution of the agreement, and abandon the trust; and that, therefore, Mr. H., by the reception of the property, became, in equity, as he undoubtedly would, a trustee of it, in the same manner, and on the same terms, and to the same extent, as the persons therein designated as the trustees would, if he had paid the moneys over to them, as stipulated in the agreement,&emdash;we are, notwithstanding, of opinion, that, on the best considered and most authoritative decisions, Mrs. H., by the very terms of the agreement, retained the right of disposing of the moneys to her husband ; and that the evidence clearly shows, that she exercised that right, in the present case. In this point of view, her power of disposition, as to the property, is to be considered precisely the same as if it had been conveyed by Mr. H. to the trustees, as provided by the agreement, and the extent of such power depends entirely on the construction and effect which is to be given to the agreement. As Mrs. if, being the absolute owner of the property, might convey it, on such terms, that she should, after the marriage, have no power whatever to controul or dispose of it, or might retain the full power of disposition over it, or such power qualified or restricted as she should see fit; and as a court of equity would regard the limitations of it in such conveyance as the law by which it would be governed ; she would, on a conveyance of it, retain over it they ms disponendi, which is incident to the ownership of property, excepting so far as that right should be impaired or taken away, by the terms of the conveyance. The inquiry, therefore, as to the power of Mrs. if., after her marriage, to dispose of this property, resolves itself into the question, how far such power was impaired, by the ante-nuptial contract. In regard to conveyances in trust, where the terms of them are not so clear and explicit as to place the intention of the grantor beyond all doubt, and it therefore becomes necessary to resort to construction, in order to ascertain his meaning, the rules of construction, the only object of which is to determine the intention of parties, are widely different between conveyances where it is the object of the grantor to convey his property, and to retain a future power in himself of disposing of it, but t.o restrict himself from exercising such power excepting in a particular mode, and conveyances, where it is his object to place it entirely beyond *170his own controul, but to confer upon a third person the power of changing such disposition of it. To use the words of a most sensible writer on this subject, in the former of these cases: “ The maker of the deed was the owner of the estate, and in the act he was about, when he made the instrument, he was putting himself under restrictions, to which, by law, he was not subject, and consequently, curtailing those powers and privileges which ensue the plenitude of ownership ; and as the disposition of man, generally speaking, is rather to enlarge his capacity of acting with respect to his property than to narrow it, the facts apparent on such a deed furnish strong presumptive evidence that the owner of the estate did not intend, by such instrument, to restrain himself further than the words he used imported, when taken in their narrowest, loosest and least strict sense. Such restraining words or phrases, therefore, when used by the owner of an estate, confining his ownership to be exercised only through the medium of a power, ought to receive a liberal construction, and such as is most favourable to such owner.” But in the latter case “ As the disposition of mankind, generally speaking, is to use great caution in permitting others to exercise acts of ownership over their estates, and as such restrictions are there placed, with a view to protect and take care of the owner, or his representatives entitled to the estate subject to the power, such a deed furnishes facts from whence presumptive evidence may be deduced that the creator of the power so circumstanced, intended that the restrictive words there used, should be taken in their most efficacious sense : in such case, therefore, they should be expounded, with respect to the donee, according to their most enlarged and operative import.” Powell on Powers, Preface, viii. This is a distinction of great importance, and which it is necessary to bear in mind in this case ; and an attention to it will serve to enable us to place a proper construction on the instrument, to discriminate between the cases cited by the parties on the argument, and perhaps to reconcile at least some of the cases which might otherwise seem to be contradictory.

As to the first fund of 10,000 dollars, to be paid over by Mr. H. to the trustees, from the moneys received on the legacies to his wife, there is not only no restriction in the contract upon her power of disposing of it after marriage, but a *171reference to it will show, that language could not be devised, which would more plainly or effectually reserve to Mrs. H. the same absolute, exclusive and plenary power, as to the disposition of this fund, as would attend the ownership of it, if she had continued a feme sole.

As to the second, or moiety fund, which was to be invested, bv the trustees, in the stock oftheBank of the United States, and which is now to be considered as represented by the amount received by Mr. H.,and presumed to be in his hands,&emdash;the only express provision in the contract respecting its disposition by Mrs. H., excepting by her will, is, that said stock shall be held in trust for the period of twenty years from the solemnization of the marriage, (during which time she was to receive the dividends thereon, as if she was unmarried,) and that the trustees shall, after that time, no longer possess or controul the same ; and that said trustees shall convey said stock to such person or persons as she shall then designate.”

That Mrs H. was entitled, by the express terms of this instrument, to a separate estate in the income of this fund, during the time while it was thus tobe held in trust, and that therefore she had then all the power of a feme sole over such income, has not been questioned.

But the plaintiffs insist, that, as to the principal of it, she had no power over it, during that period, unless to make an appointment of it by will; and that as she died before the expiration of that period, without making any such appointment, it remained, by the terms of the instrument, to be distributed or paid over, at her death, to her heirs at law.

Although the phrase used in regard to her designation of the persons to whom the principal of that fund should be conveyed, by the trustees, after the expiration of that period, is susceptible of that meaning, and such an interpretation of it would comport with its most literal and obvious terms, if it were looked at as a mere.insulated expression: yet, when the other parts of the instrument, its general scope and object, and the consequences of attaching such a meaning to the phrase, are considered, such a construction appears quite too narrow, and not to express the intention and design of the parties, which it should be our great object to ascertain.

By the most sensible and rational construction of this clause, the principal of this moiety fund was intended to con*172tinue to be invested, in the name of the trustees, in the stock of the Bank of the United States, for the period of twenty years from the solemnization of the marriage, after the expiration of which time, they were to convey it to whomsoever Mrs. H. should, either at that or any other time, whether before or after the expiration of that period, designate. The stock was not to be transferred until the expiration of twenty years ; but the designation of the person to whom it should be then transferred, might be made by her, at any time. The expression used, in regard to the designation by her, is, on any construction, elliptical; and we consider that the word “ then,” notwithstanding its immediate connexion with the term “ designate,” as referring to the time when the stock should be enjoyed, by the person to whom it was to be conveyed in pursuance of her designation, rather than to the time when such designation should take place. If the expression had been, as she shall designate then to receive it, or as shall at that time he designated by her, there would be no question that the designation might have been made at any time. We think that the real import of the terms here used is the same as if one of these phrases had been used. One moiety of the money, of which the other moiety constitutes this fund, was to belong to Mrs. Huntington. The other was to be invested, by the trustees, for the use of his wife. They were her trustees ; and, by the terms of the contract, were not to be liable to any person but her. She was to receive the income of this fund, for her own separate use, for a particular period. She reserved the power of directing to whom the fund should then be conveyed, and if no such direction should be given, of disposing of it by will. It is plain that her husband was not intended to have any interest in or power over it, by virtue of his marriage. If not disposed of, in her life-time, by a conveyance of it, nor by will, it was to be paid to her heirs. It is obvious from these provisions, that she was not to be restricted, in regard to the disposition of this fund, excepting by that particular provision requiring it to remain in the names of the trustees for the period of twenty years, during which she was to be entitled to receive the income of it. And it is now well settled, that she would not be restricted in the reception of that income to the times when the dividends should have been made on the stock in *173which the fund was invested; but that, there being no express restriction againts an anticipation of such income by her, she might have anticipated it. We perceive no reason why her disposition, before the expiration of the twenty years, of the reversion of this fund, would not be valid, by the terms of this instrument, which would not also invalidate a disposition of it in case of her death within that period, by her will, previously executed. That such an appointment by will would be valid, under this instrument, we can entertain no doubt. We can perceive no good reason for believing, that the parties to this contract intended, that within the twenty years she might dispose of this reversion, by will, and by no other mode. That she might have restricted herself from designating, during that period, the persons to whom this fund should be conveyed, by the trustees, by terms so clear and explicit as to admit of no other construction, there is no doubt: but even in case of a power of appointment given to a third person, where the construction is more un-favourable to the settler than in a case like the present, where the settler is imposing restrictions on herself, the rule is, that phrases similar to that on which the plaintiffs rely on this point, are, unless they are thus dear and explicit, to be construed as conferring a power which is general as to the time of its execution. 1 Sugden on Powers, ch. 6. p. 330. § 6. and cases cited.

But without relying on the construction of the express power reserved to Mrs. H., by this instrument, in regard to the disposition of the property in question, we are of opinion that the principle is established, by the decided weight of authorities, in this country, in accordance with what is now universally conceded to be the established doctrine in England, that an ante-nuptial settlement,by a woman, of her property, to her separate use after marriage, gives her, in equity, the full power of disposing of such property, by any suitable act or mode of conveyance, in the same manner, and to the same extent, as if she were a feme sole, excepting so far as there is some express or implied restriction upon such power of disposition in the instrument of settlement; and that no such restriction is implied from the circumstance that it is provided, in such settlement, that she may dispose of it in any particular mode therein pointed out ; but that such provision *174must, either expressly, or by necessary implication, exclude any other mode of disposition, in order to constitute such a restriction ; and that, where her property is so settled for her separate use, through the medium of a trust created for that purpose, she may exercise such power of disposition, without the assent of her trustees, unless such assent is made necessary by the terms of the instrument, although such assent, if necessary, is fully shown by the acts of the trustees, in this case.

These principles are settled in England, by a series of decisions from a very early period down to the present time, unbroken, excepting by a very few cases decided by Sir R. P. Arden, Master of the Rolls, and Lord Loughborough, in which they attempted to establish a different doctrine, but which were afterwards repudiated by Lord Chancellor Eldon, who restored the law to its ancient principle, and in Parks v. White, 11 Vesey jr. 209, after reviewing all the authorities, pronounced the doctrine of those cases to be in opposition to all the previous authorities for a century : since the decision of which last case, the law of that country has been considered as settled in accordance with the earlier authorities. We do not propose to examine the numerous English cases on the subject. It is unnecessary to do so, especially after the minute and careful review of them by Lord Eldon, in the case referred to, by Chancellor Desaus-sure, in Ewing v. Smith & al. 3 Desaus. R. 417. and by Spencer, C. J. and Platt, J. in Jaques v. Meth. Epis. Church, 17 Johns. R. 548. to which it is sufficient to refer.

In this country, the decisions on the subject have not been uniform. In Ewing v. Smith & al., decided in 1811, Chancellor Desaussure, in the circuit court (of equity) of South Carolina, adopted the principle as now settled in England. His opinion was, however, overruled, by a majority of the court of appeals of that state, who admitted, that his opinion was in conformity with the English law, but proceeded on the ground that the question in that state was to be considered as res nova, and that in consequence of a statute prevailing there, they were not bound by the English decisions ; and in that state, the decision of the court of appeals has not since been departed from. In 1820, the subject was most thoroughly and ably examined, by the supreme court of errors in the state ofNew-York, in Jaques v. The Meth. Ep. *175Church before mentioned, and that court, in opposition to the opinion of Chancellor Kent, adopted the English rule, which has since been uniformly recognized in that state. In that case, Ch. J. Spencer declared the principle established by the cases to be, that “ a feme covert, with respect to her separate estate, is to be regarded, in a court of equity, as a feme sole, and may dispose of her property without the consent or concurrence of her trustees, unless she is specially restrained by the instrument under which she acquires her separate estate and Platt, J. says, that the rule is, “ that a feme covert, having a separate estate, is to be regarded as a feme sole as to her right of contracting for and disposing of it. The jus disponendi is incident to her separate property, and follows, .of course, by implication. She may give it to whom she pleases, or charge it with the debts of her husband, provided no undue influence be exerted over her ; and her disposition of it will be sanctioned and enforced, by a court of equity, without the assent of her trustee, unless that assent be expressly made necessary, by the instrument creating the trust. And the specification of any particular mode of exercising her disposing power, does not deprive her of any other mode of using that right, not expressly or by necessary construction, negatived in the devise or deed of settlement.” In Tennessee, Mississippi and Virginia, and as it would seem, in Pennsylvania, the contrary rule prevails. In North-Carolina, Alabama and Kentucky, the question appears to be undetermined. White & Tudor’s Leading Cases in Equity, p. 370. & seq.&emdash; (Amer. ed. note by Amer. editor.) We adopt the English rule, not only as supported by the highest authority, but because we think it is also supported by the strongest reasons. Those reasons are most clearly and forcibly stated, by the distinguished judges whose opinions we have referred to, in Jaques v. The Meth. Ep. Church. We think they are unanswerable, and deem it necessary only to refer to the views expressed in those opinions as expressive of our own. Clancy on Husb. Wife, b. 3. ch. 5. 6. 7. p. 282. & seq. 2 Story Eq. 623.

The decisions adopted by us, extend the rule of construction, established by them, not only to settlements of property made by the owner upon a married woman for her separate use, and where, therefore, the enquiry respects the extent of *176a delegation of power to her, by a third person ; but also to settlements made by a married woman of property, of which she is herself the owner to her own separate use, and where the rights which flow from such separate estate constitute not a delegation, but a reservation of power to herself over it, and any restrictions imposed on herself as to her future right of disposing of it, are only qualifications of such power, and where, therefore, the enquiry respects only the extent of such restrictions. It is, therefore, sufficient for us here only to determine that such rule of construction should be adopted, as we are of opinion that it should be, in the latter of these cases, which is the one now under consideration. We think that neither the provision that Mrs. II. might dispose of the moneys in question by will, nor that respecting her designation of the person to whom the reversion of the second fund should be conveyed, operated to prevent her, at any time, from disposing of the principal and interest of the first fund, or the income and reversion of the other ; and that they being limited to her separate use, she had the full power of a feme sole in regard to their disposition.

That this property was a proper subject of disposition by gift, admits of no doubt; and the only remaining question is, whether Mrs. II. made such a disposition of it to her husband. On this qustion, her acts, declarations and confessions, are evidence in the same manner and to the same extent as if she were a feme sole. We have already expressed our opinion as to the effect of the evidence before us on the question which arose upon the first view which we took of this case, and the remarks there made are applicable to the present point. Without further pursuing the subject, we cannot entertain a doubt, that the evidence most clearly shows, that here was an executed gift by Mrs. II. of all her property in the moneys now claimed by the plaintiffs, and that this bill, therefore, cannot be sustained.

It would not be difficult, by a reference to the peculiar circumstances of this case, to show the absolute and great injustice of permitting the plaintiffs, asserting a right here under Mrs. II. as her heirs, to reclaim from her husband these moneys, after the expenditure by him of a part of them, with her approbation and concurrence, and, it may be fairly presumed, at her instance, principally for her health and com*177fort, and the just expectation on his part, superinduced by her conduct, that he would be allowed to enjoy the remainder, and the course of life which he has been led and encouraged to pursue in consequence of such reasonable expectations. But it is unnecessary to pursue this topic. Powell v. Starkey, 2 P. Wms. 82,

We have thus expressed our views of this case, as briefly as possible, without being unintelligible, and yet more at large than if it were not the first in which the power of married women to dispose of property reserved or limited to their separate use, has arisen in our courts; and for the sake of avoiding prolixity, have preferred a reference to the numerous authorities on the subject, to a minute detail of them. And we come to the conclusion,

1. That the ante-nuptial contract in question was execu-tory in its character; that before its execution it was competent for Mrs. H. to discharge Mr. II. from executing it, and to abandon the trust created by it; and that she did so abandon it in his favour.

2. That if the trust, as against Mr. II., be considered as having been executed, Mrs. H. by a just construction of the contract, retained the separate use of the property in question, with a power of disposing of it, at any time, unrestricted, except as to the time when the principal of the second fund was to be transferred by the trustees.

o. That independently of such construction of the express terms of said contract, inasmuch as she retained by it the separate use of the property, without any express or implied restriction qualifying that separate use, so as to prevent her from exercising the power of disposing of the property at her pleasure, she had such power as incidental to her separate ownership of it.

4. That in either of the two last cases, she is to be regarded in equity as a feme sole in respect to her right of disposing of said property; that it was competent for her to exercise such right in favour of her husband ; and that she gave the property to him, without any force, fraud, undue influence, or improper conduct on his part.

On each of these grounds we think that the plaintiffs have *178no claim on Mr. H. for the funds in question; and therefore, we advise the superior court, that the bill be dismissed.

In this opinion the other Judges concurred, except Ells-worth, J., who gave no opinion.

Bill to be dismissed.