Lemen v. McComas
63 Md. 153
Md.
1885
Check Treatment
Irving, J.,

delivered the opinion of the Court.

The appellant was purchaser at a sale made by the appellees under a power of sale in a mortgage, and objected to the ratification of the sale, on the ground that. *155the mortgagors did not have a good title. His exceptions-having been overruled by the Circuit Court for Washington County, he has appealed. The only question in this-case is what title the second clause of the will of Jacob-T. Towson, gave his daughter Sarah Coakley? The will reads thus: “I give and bequeath to my son, William Towson, hereinafter named, and his heirs, the following property in trust for my beloved daughter, Sarah Coakley, wife of Philip H. Coakley of Baltimore, and her heirs, that is to say, the farm lying in Washington County, State of' Maryland, on the Potomac River, now in possession of one Jacob Dellinger, and containing four hundred and forty-six acres, more or less, together with all the improvements and appurtenances thereto belonging; also all that new brick house in the town of Williamsport and county and State aforesaid, situate upon the north east corner of' Potomac and Conococheague streets, and now occupied in part by the Washington County Bank, and in part by Dr. Samuel Weisel, together with so much of the lot on which it stands, and of such outhouses as have been, or are now attached to and rented with it. The said William Towson is to hold the aforesaid property in trust as aforesaid, for and during the life of the said Philip H. Coakley, the rents and profits thereof, after paying thereout of taxes,, repairs and other expenses by the trustee, to he paid in the meantime to the said Sarah and her heirs, for her and their separate use, and after the decease of the said Philip-H. Coakley, the whole of the aforesaid property herein devised, is to vest in and helong to the said Sarah and her heirs, in her or their own right forever.”

The question presented seems to us free from difficulty. The suggestion, that under this will Mrs. Coakley took only a life estate finds no support, we think, in the language of the will. During the life of her husband, Mrs. Coakley certainly took an equitable fee, whilst the trustee took the legal fee in trust for her and her heirs, until the-*156husband’s death. At the death of her husband the trust immediately was to end, and Mrs. Coaldey was to take the legal fee. Pending the life of her husband, Mrs. Ooakley took only the equitable fee ; but she took in reversion the absolute fee at her husband’s death. By the express language of the will, during her husband’s life, the trust or equitable estate which she took was a separate estate, and there is no restraint put upon her in respect to anticipation or alienation. Such an estate is, beyond doubt, the subject of alienation. Hulme vs. Tenant, 1 White and Tudor’s Leading Cases in Equity, 679 ; Cooke vs. Husbands, et al., 11 Md., 503. In the case of Cooke vs. Husbands, et al., this Court adopted the language of Lord Thublow in Hulme vs. Tenant, wherein he says, “ there is an unbroken current of decisions, that a feme covert, with respect to her separate property or estate, is to be regarded in equity as a, feme sole, and may dispose of her property without the concurrence of her trustee, unless specially restrained by the instrument under which she acquires her separate estate.” The Court further says, that it is “ on the principle that the jus disponendi accompanies the property,” when there is no restraint imposed in terms, “or by the manifest intent of the instrument.” In the leading case of Taylor vs. Meads, 34 L. J. N. S. Ch. 203, (and 1 White & Tudor’s Cases in Equity, 686,) Lord Chancellor West-hurt, in discussing the question whether a married woman has the same power of disposition over the separate estate given in trust to her and her Jieirs, as if she were sole, says: “ The whole matter lies between a married woman and her trustees, and the true theory'of her alienation is, that any instrument, be it deed or writing, when signed by her, operates as a direction to the trustees to convey or hold the estate according to the new trust which is created by such direction. This is sufficient to convey the feme covert’s equitable interest. When the trust created is clothed by the trustees with the legal estate, the alienation is complete both at law and equity.” He adds that *157“equity follows the law, and preserving the analogy between legal and equitable estates, requires that the equitable estate of the married woman he dealt with inter vivos in the same manner as a legal estate.” In this case the conveyance was made of both legal and equitable estate, by deed duly executed and acknowledged according to law, by Mrs. Coakley, and the trustee, Mr. Coakley, the husband, also uniting therein. The legal fee was in the trustee, and that this was alienable is not only shown by the last cited decision, hut it is laid down in Perry on Trusts, secs. 274 and 321, as alienable, although it he a technical breach of trust, and may not discharge the trustee from his liability. Here Mrs. Coakley united in the deed and participated in the breach of trust, if it he one, and thereby, according to the authority quoted, the title passed. It is “ on the principle that she can dispose of her separate property, she renders it liable by concurring with her trustees in a breach of trust, unless she is restrained from anticipation.” 1 White & Tudor, (L. C. E.,) 689, and cases there cited. Mrs. Coakley only had the beneficial interest. She only would he entitled to complain of the breach of trust, and she is clearly estopped, by participation, from complaining. In the face of her deed, neither she, nor any one claiming under her, could ever claim the property because of the breach. In the language of Lord Westbuey, speaking of such condition of things, “ the alienation is complete.” We think the purchaser’s title under the mortgage sale in this case unassailable, on the grounds assigned, and the order appealed from will he affirmed.

(Decided 12th February, 1885.)

Order affirmed, and cause remanded.

Stone, J., dissented.