30 Ga. 308 | Ga. | 1860
By the Court.
delivering the opinion.
The sole question in this ease is, whether or not it was the intention of this settlement to exclude the husband from his marital rights after the death of his wife ? The words of the exclusion constitute the first trust or condition declared by the settlement, and areas follows: “ The said property nor any part thereof, or the proceeds, profits or hire thereof, is never to be subject to the control, contracts or liabilities of the said Lunsford Lowe, heretofore made or entered into by him, or that shall hereafter be made or entered into by him.” By these terms, from what, or how much is he excluded, and during what time, or how long is he excluded ? It was suggested that these terms fail to effect any exclusion at all, upon the idea that their real intention was not the lawful one of excluding the interest which the husband would acquire by the marriage, but the unlawful one of protecting that interest from his debts, and that the intentiou being illegal must fail. It is true that the form of phraseology indicates that the parties were looking to the security of the property from the husband’s debts, as a leading purpose, but the plain legal effect of the language used, is the complete exclusion of his interest during whatever period the exclusion operates. The property is saved from his control, as well as his contracts, and is guarded against him, as well as against his creditors. He who has no control over a thing, nor any power of subjecting it to his contracts or liabilities, has no property in that thing. Take away these, and I know not anything that is left. The words used effectually negative the husband’s interest, and there are no other words to contradict or qualify them. To conclude that an interest was intended to be lett in him during the period in which this clause is to have effect, is to impute an intention to the parties upon a mere surmise, in opposition to the plain effect of the words which they have used to express their intention. The exclusion is complete so long as it lasts. During what time, or how long does it operate? It is clear that the literal sense of the term excludes him forever, as well after the
Judgment reversed.