131 Pa. 476 | Pa. | 1890
Opinion,
At common law a married woman could not hold and enjoy
In Pennsylvania, however, and in some of the states, the English rule was not adhered to. The first departure from it was in Ewing v. Smith, 3 Des. Eq. 417, which was followed in this state by Lancaster v. Dolan, 1 R. 231, where it was held that a feme-covert is, in respect to her separate estate, to be deemed a feme-sole only to the extent of the power clearly given her by the instrument by which the estate is settled, and has no right of disposition beyond that. “ Nothing in the law,” says Chief Justice Gibson, in the case just cited, “ is more to be deprecated than those decisions in which the right of the cestui que trust to dispose of his estate has been recognized. Every attempt to secure a provision to a spendthrift child must prove abortive while the trustees are bound to follow any disposition of it which he may make. It is still more unfortunate
There can be no question, of course, as to the right of the donor to invest the wife with the full powers of a feme-sole, if he chooses so to do ; and whén this intention is clearly manifested it must prevail. The principle is to be applied, not as a rule of property, but as a rule of construction only. Whilst recent statutory provisions have, perhaps, to some extent, circumscribed the necessities which originally called for the intervention of equity, it is plain, we think, that the precise purpose
Prior to the passage of the act of April 11, 1848, P. L. 536, a married woman could have no separate estate of her owu at law; such an estate existed only in equity. If the wife’s title was legal, there could be no separate use, for the marital rights of the husband were necessarily incidental to the legal estate: Todd’s App.,24 Pa. 429. In the case of an equitable separate estate, the legal title either was, or was assumed to be, held in trust for her; and if in the instrument creating the estate no trustee was named, equity supplied a trustee in the person of her husband. But under the act of 1848 she was invested with a separate estate at law; all the property of a single woman continued to be her property, as fully after marriage as before, and all accruing to her during coverture was owned, used, and enjoyed by her as her own separate property. She owned, used, and enjoyed it, not as a feme-sole, as was said in Cummings’ App., 11 Pa. 275, but as a feme-covert, the same as if it had been settled to her use, with such incidental and restrictive powers of alienation, however, as are conferred by the statute: Pettit v. Fretz, 33 Pa. 118. But the provisions of the act of 1848 did radically change her rights at law. By the common law, the husband succeeded to her dominion over her personal property and her dioses in action; by reducing them into possession, they became absolutely his. He became entitled, also, to the use and enjoyment of her real estate, owning its rents, issues, and profits. The consequence was that all the property she brought to her husband, except a remainder in her real estate upon his death, was liable to be seized and sold at the suit of his creditors. Instances had occurred in which a wife, who had brought property to her husband, had seen it all swept away, and herself left to destitution, through the improvidence, misfortune, or even vice of her husband. It had perhaps gone to pay debts which he had contracted before the marriage. Such cases appealed strongly to the sympathies of the legisla
The act of June 3, 1887, P. L. 332, provides in substance, inter alia, that marriage shall not be held to impose any disability or incapacity on a married woman, as to the acquisition, ownership, possession, control, use, or disposition of property of any kind, in any trade or business in which she may engage, or in the enjoyment or improvement of her separate estate, real or personal; but that she shall be capable of entering into and rendering herself liable for any contract or obligation relating to the ownership, disposition, enjoyment, or improvement thereof; that every married woman shall have the same right to acquire, hold, possess, improve, control, use, or dispose of her property, real or personal, in possession or expectancy, in the same manner as if she were a feme-sole, without the intervention of any trustee, with all the rights and liabilities incidental thereto, with certain exceptions, as if she were not married; and that property of every kind, owned, acquired, or earned by a woman before or during her marriage, shall belong to her, and not to her husband or his creditors. Further, that she may make, execute, and deliver leases of her property, real and personal, in person or by attorney, but in any mortgage or conveyance of her real estate she must be joined by her husband.
Thus it will be seen that whilst the effect of the act of 1848 was to deprive the husband of certain common law rights, which accrued to him by marriage, in his wife’s property, the act of 1887 was intended to perfect the wife’s means and facilities for enjoyment of the property, the title to which by the act of 1848 was secured to her from her husband and his creditors. The act was passed for the benefit of the wife, and was designed to enable her to improve and enjoy her own estate free from the interference of her husband, or any one claiming under him. It should, therefore, receive such reasonable and
Nor has either the act of 1848 or the act of 1887, nor both of them together, dispensed with the necessity which orginally gave rise to this equity. Heretofore a married woman was protected from her own improvidence, as well as the improvidence of her husband, by her disabilities ; and, as these disabilities are.now to a great extent removed, the necessity is increased, rather than diminished. Her disabilities, her want of power to yield to her husband’s solicitations, or to give way to her own sympathies, have always been supposed to afford her
But, assuming all that has been said, it is contended that the acts of 1848 and 1887, taken together, are not without effect in the construction of the instrument upon which the settlement depends; that, since by the act of 1848 the property of a married woman is owned by her “ after marriage as before,” and is owned, used, and enjoyed by her “ as her own separate property,” free from the debts and liabilities of her husband, and by the act of 1887, she has the right to acquire, improve, or dispose of her property “ as if she were a feme sole,” and property of every kind owned, acquired, or earned by her, before or during marriage, belongs “ to her, and not to her husband, or his creditors,” more particularity of expression is now required than formerly in Pennsylvania to create what is known as a separate use trust, as distinguished from a separate use, under the statute. But if it be true, as we have already shown, that these acts relate only to estates created by and existing under the law, and have no reference whatever to the separate equitable estate of a married woman, we cannot see how the language of these acts can in any way be applied in the construction of instruments which, under the numerous decisions of this court, have been held to create a separate estate recognized only in equity. We cannot say that what was a trust before is a trust no longer, or make that a legal estate which, according to a 'well-established rule of property, has always heretofore been held to be an equitable separate estate only.
Eveline Gross died after the passage of the act of June 3, 1887. Her last will and testament was probated September 4, 1888. By her will she provided, inter alia, as follows: “I hereby bequeath and devise to my said adopted daughter, Matilda Gross MacConnell, all the rest and residue of my estate, real, personal, and mixed, absolutely and in fee-simple, and including therein any and all legacies which may lapse by reason of the decease of any beneficiary or otherwise; and it is my will that the said Matilda Gross MacConnell shall take
The judgment is reversed, and judgment is now entered in favor of the defendant, on the case stated, for the sum of $100, with interest from the 19th June, 1889, and costs.