8 Port. 73 | Ala. | 1838
— The bill of exceptions, in this case, raises one question, touching Which, if our opinion be favorable to the defendants in error, we need not look far
It may be laid down as a general rule, where property is given or bequeathed to a married woman, without any qualification of the manner in which it is to be possessed or enjoyed, that it will vest subject to the ordinary legal and marital rights of the husband. But if it appear from the deed, or other instrument which transfers the property, that it was the intention of the donor or testator, that the wife should have an estate therein to her own separate use and disposal, such intention shall take effect, if it be fairly and clearly expressed. What terms are necessary to speak such an intention, it is not always easy to determine. The books contain some cases marked by nice distinctions, and the decisions even of the same court upon this subject, have not, in every instance, maintained uniformity.
In Hartley vs. Hurle, (5 Vesey, jr. 544,) the Master of Rolls decided that a bequest in trust, to pay the annual produce of a fund created by the testator, into the proper hands of a married woman, was a bequest to her separate use. But in Tyler vs. Lake, (6 Cond. Eng. Ch. R. 450,) it appeared that lands were settled upon trust, after the death of the settler, to sell the same and distribute the proceeds among all the settler’s children nomi-natim: and as to the shares of two who were married
In Lumb vs. Milnes, (5 Vesey, jr. 521,) the Master of the Rolls considered that the mere fact of vesting the estate in trustees for the benefit of the wife, did not create a sole and separate interest in the wife, and he assumed that no case had ever gone the length of so deciding. And in Kensington vs. Dollond, (7 Cond. Eng. Ch. R. 322,) it appeared that by the marriage settlement of a widow, her property wás assigned to two trustees upon trust, to invest and pay the dividends to her for her life, for her own sole and separate use, and after her decease, upon trust, to pay the fund to a .daughter by her first marriage, (who was then .married) “for her own use and benefit.” The daughter’s husband becoming bankrupt, it was held, that on the death of the tenant, for life, his assignees were entitled to the fund subject to the wife’s equity for a settlement. The Master of the Rolls observed, that “the intention to give a separate estate must be clearly expressed. A gift to a wife for her
■ The law seerns rather to favor the marital rights of the husband, and will not consider them to be interfered with, by any disposition of property made for the wife’s benefit, unless there is a clear exclusion of his interest and control-(2 Atk. R. 561; 3 lb. 399.) In Wagstaff vs. Smith, (9 Vesey, jr. 520,) a trust was created by will to permit a married woman to receive the interest or dividends of stock to her own use during her life, independent of her husband. The Master of the Rolls determined, that by the terms of the trust, an absolute and complete life interest passed to the wife — (See also Lumb vs. Milnes, (5 Vesey, jr. 528.) And in Jamison’s ex’or vs. Brady and wife, (6 Serg. & R. Rep. 466,) it was made a question, whether a bequest to a married woman for her oi07i use, conveyed to her an interest for her oicn separate use, and it was adjudged that it did. The court lay great stress upon the intention-of the testator, not alone as it was to be gathered from the will itself, but as it was inferrable £rom extrinsic circumstances. It appeared in proof, that the husband was indebted to the testator: this circumstance is remarked upon by the court, as indicating the testator’s intention to vest a separate estate in the wife; otherwise, his bounty would be of no avail to the wife, but would operate rather as a release of the husband’s indebtedness.
The cases most favorable to the interest of the wife, are decisions of the Court of Chancery of South Carolina.
A distinction has been often taken between a gift or bequest to a married woman, and a gift or bequest to one who is unmarried, unless it is made in contemplation of an immediate marriage, and with a view to a provision for that event. In the case of the unmarried woman, much stronger terms are required to indicate the intention of the donor or testator to continue a distinct interest in herself, after she shall come under the protection and control of a husband. If the terms employed are, that the property shall be “ at her own disposal,” or “ for her sole and her separate use,” the property would Vest absolutely in her as owner, and upon marriage, would not be holden otherwise than as her other absolute estate; but would be subject to the marital rights of the husband—(2 Story’s Equity, 610, 611, and cases there cited.)
In the case at bar, we have cited quite a number of authorities, not because we have thought it necessary to the understanding of the principle of our opinion, but
Our conclusion on this question is decisive of the case, and relieves us from considering the other points presented by-the bill of exceptions. The judgment is affirmed.