53 Mo. 444 | Mo. | 1873
Lead Opinion
delivered the opinion of the court.
The defendants, Wm. E. Taylor and Lucy Gr. Taylor, are husband and wife.
The wife joined with her husband in the execution of a promissory note for $1,900, which is held by the plaintiff.
This suit was brought to subject to the payment of this note the interest of the wife in certain real estate situated in St. Louis, the legal title to which is vested in the defendant, Charles Bobb, as trustee for her and others.
The material question is, whether the interest of Mrs. Lucy Gr. Taylor is held by the trustee for her sole and separate use, so that she could in equity bind it for the payment of the. note executed by herself and husband.
Mrs. Lucy G. Taylor was formerly Lucy G. Bobb, one of the children of the defendant, Chas. Bobb, and his wife, Mary H. Bobb, and one of the beneficiaries in the deed of settlement hereinafter referred to.
On the 23d day of January, 1845, Hannah Letcher, who afterwards married John D. Stevenson, executed a deed of settlement, whereby she conveyed in fee to the defendant, Charles Bobb, as trustee, the real estate sought to be charged with the payment of the note referred to. The language of this deed declaring the trust is as follows :
“ To have and to hold the same, with the rights, privileges, and appurtenances thereto belonging, unto him, the said*447 Charles Bobb, and to his heirs and assigns forever. In trust however, for the sole use, -benefit and behoof of Mary TI. Bobb (wife of said Charles Bobb), and of Charles L. Bobb, John H. Bobb and Lucy Gr. Bobb, children of said Charles Bobb, and to their heirs, executors, administrators and assigns forever. That they may have, hold and enjoy the same, with all the rights, improvements, buildings, &c., separate from said Charles Bobb, their respective husband and father, as their own sole, individual and exclusive property ; and the said Charles Bobb of the second part, trustee as aforesaid, shall hold said property for the sole benefit of the said Mary H. Bobb, wife of the said Charles Bobb, aud Charles L. Bobb, John H. Bobb, Lucy G. Bobb, and to their heirs, and shall obey their written instructions in all things relating to said property; shall rent, lease, mortgage, sell or dispose of the same, or any part thereof, for such consideration, to such person or persons, and in such manner as they, the said Mary TI. Bobb, Chai-les L. Bobb, John H. Bobb and Lucy G. Bobb. their heirs or assigns, shall direct in'writing ; and the rents, profits and moneys accruing from such disposition of said property, or any part thereof, he shall pay over to said Mary H. Bobb, Charles L. Bobb, John H. Bobb and Lucy G. Bobb, or their order ; and generally and in all things the said trustee and his heirs and assigns shall faithfully, according to the true intent and meaning hereof, discharge the trust herein created.” At the time this deed of settlement was made, Lucy G. Bobb was-the youngest child of Mary H. Bobb, and only six months old.
In the year 1853 Mary H. Bobb died, leaving as her only heirs-at-law the children mentioned in the deed of settlement, and two others subsequently born, Cora Bobb and George Bobb.
After the death of Mary H. Bobb, it was ascertained, that there had been a mistake made by the draughtsman in writing the deed of settlement, in not authorizing the sale and disposition of the property without the written consent of the beneficiaries. To correct this mistake, and effect a.resettlement'
The petition filed in the Land Court assumes, that it was the intention of the deed of settlement to convey the land in dispute to Charles Bobb, as trustee, “for the sole, separate and exclusive use, benefit and behoof of the said Mary H., Charles L., John A., and Lucy G. Bobb, their heirs and assigns, forever,” &c.
The prayer of the petition asks for a judgment reforming the deed so as'to carry out the object and intention of-the parties who executed the same: “That the said trustees shall forever hold the said real estate for the sole, separate and exclusive use, benefit and behoof of said parties, who are entitled to the equitable interest as aforesaid, their heirs and assigns, with power in said trustee,” etc., and the “ moneys or proceeds arising from any sale or disposition of the same, or any part thereof, to be paid over or held by the said Charles Bobb for the sole, separate and exclusive use and benefit of said parties as aforesaid holding or entitled to the equitable interest as aforesaid.”
The Land Court rendered a judgment in conformity to the prayer of the petition. The substantial part of the judgment is in the following language :
“ That said deed be reformed, and that said mistaketin said deed be corrected as asked for in said plaintiff’s petition, so as to carry out and accomplish the said object and intention of the said parties who executed the said deed as stated in said petition ; that the title in fee simple of the said real estate be vested in the said Charles Bobb, the father of said minors, and forever held by him and his heirs, for the sole, separate and exclusive use, benefit and behoof of the said Charles L. Bobb, John H. Bobb, Lucy G. Bobb, Cora Bobb and George Bobb, their heirs and assigns, according to the*449 said deed as aforesaid, with full power and authority, however in the said Charles Bobb, trustee as aforesaid, to rent, lease, mortgage, sell or dispose of the said real estate, or any part thereof, for such consideration, to such person or persons, and in such manner as he, the said Charles Bobb, trustee as aforesaid, may deem best for the interest of the said parties entitled to the equitable interest in said real estate as aforesaid: and with full power and authority in the said Charles Bobb to execute and deliver such deeds and assurances, so as to pass and convey the same in fee simple; and all rents and profits arising from the same, and moneys and proceeds arising from any sale or disposition of said real estate, or any part thereof, shall be paid over or held by the said Charles Bobb for the sole, separate and exclusive use and benefit of the said parties entitled to the equitable interest as aforesaid.”
At common law the wife was not allowed to hold property separate from her husband. For most purposes they were considered as but one person — the individuality of the wife being swallowed up in that of her husband. On the other hand, courts of equity, following the doctrines of the civil law, have for a great length of time admitted, that a married woman is capable of taking and holding real or personal estate for her sole and separate use, with the incidental power of disposition. And this doctrine has gradually grown irp, and is now firmly established,'that in regard to her separate property a married woman must be treated in almost every respect as a feme sole.
The only question is, under what circumstances property settled on a married woman will be deemed a trust for her sole and exclusive use.
The solution of this question depends upon the intention of the donor, to be gathered from the deed of settlement, or if it be by the decree of a court, from the terms of such decree-creating the trust in her favor.
Although it is a matter which, upon the authorities, involves some nice distinctions, it may be laid down as a rule
The question, however, still remains: What words are sufficiently expressive of such purpose, for the purpose must clearly appear, beyond any reasonable doubt, otherwise the husband will retain his ordinary marital rights.
■ Some words and .phrases have been so often used in marriage settlements, and so frequently passed upon by the courts, that they have acquired a significance, which makes them rules of property in the interpretation of such instruments, and the courts are bound, when such words orphrases appear, to conclude the'intent to be to exclude all the marital rights of the husband.
Judge Story, in his work on Equity Jurisprudence, says: “ On the one hand, if the language of a marriage settlement made before marriage, or of a gift or bequest to a married woman after marriage, be that she is to have the property ‘to her sole use or disposal,’ or ‘to her separate use or disposal,’ or ‘to her sole use and benefit,’ or ‘for her own use and at her own disposal,’ or ‘to her own use during her life independent of her husband,’ or ‘that she shall enjoy and receive the issues and profits,’ or ‘that it is an allowance as for pin-money,’ (eo nomine); in all these cases the marital rights of the husband will be excluded .and the property will be for her exclusive use. ******* So a bequest to a married woman and her infant daughter, to be equally divided between them, share and share alike, ‘for their own use and benefit, independent of any other person,’ will be construed to mean ‘for their sole and separate use.’ So a bequest to a married woman, ‘for her benefit, independent of the control of her husband,’ will receive the like construction. In all these cases the words manifest an unequivocal intent to exclude the power and marital rights of the bus-band.” (2 Story’s Eq., § 1382.)
From the doctrines there laid down it is plain to my mind that the language used in the deed of settlement, not only created a separate estate in Mrs. Mary H. Bobb, but also in her then infant daughter, Lucy Gr. Bobb.
The phrase used is precisely the same as some of those quoted from Judge Story, which have become rules of property in the creation of separate estates for married women. It can make no difference, that the same language was applied to the males. So far as the males are concerned it can have no meaning, as their individuality remains whether married or unmarried. But when applied to Lucy Gr. Bobb, as it was, it created a separate trust in her behalf in anticipation, and protected her interest from the marital rights of her future husband, ¥m. F. Taylor.
It seems that this was the understanding of all the parties to the deed of settlement, for after the death of Mrs. Mary H. Bobb, when, application was made to the Land Court, as a court of equity, to reform the deed and to have the property re-settled by a decree of that court, the petition declares, that the intention was to settle the property on Lucy Gr. Bobb, for her sole and separate use, and the petition asks for a decree so as to vest the title in the trustee for the sole, separate and exclusive use and behoof of the parties entitled to the equitable interest in the same. This decree was accordingly made, and the language used, beyond any doubt, created a separate trust in the defendant, Lucy Gr. Taylor.
The court had complete jurisdiction over the persons and
In my opinion the judgment of the Circuit Court, which .was for the defendants, ought to be reversed, and the cause remanded.
Reversed and remanded.
Dissenting Opinion
Dissenting opinion of
This was a proceeding in the nature of a bill in chancery, instituted in the Circuit Court of St. Louis county by the Metropolitan Bank, to subject certain real estate to the payment of a certain promissory note executed by defendants, William F. Taylor and Lucy G., his wife, to one Joseph Geittier, and by him transferred to the bank; and it was claimed in the petition in the cause, that a certain undivided interest in said real estate was the separate estate of the wife, Lucy G., and therefore was charged with the payment of the debt specified in the note executed by herself and husband.
Charles Bobb, the father of Mrs. Taylor, and the trustee in whom the title' of the real estate was vested, was also made party defendant to the suit.
On the hearing of the cause, the deed, which conveyed the property above referred to, was read in evidence, from which it appeared; that Hannah Letcher had in the year 3845 con
This deed, which was signed and acknowledged by both the grantor and the trustee, afterwards, (in 1854, the wife, Mary IT. Bobb, having died the preceding year,) was so far reformed by a decree of the Land Court of St. Louis county, (which decree and accompanying papers were also read in evidence,) as to. obviate the necessity of written instructions and directions from the benejiciaries, who were then minors, prior to a sale or other disposition of the property in question by the trustee, and to permit him - to proceed in all respects as if no such clause making written instructions had ever been contained in the deed of trust. This was the only
There is only one question in this case, and that is, whether the deed from Hannah Letcher to Charles Bobb, as it was originally drafted, or as subsequently reformed, created a separate estate as to Lucy Gf. Taylor’s interest in the property conveyed. For although it was at one time held, that a separate estate could only be vested in a feme sole, as against a named or contemplated husband, and that such settlements upon single women, to the exclusion of the right of some future, but unknown husband, were inoperative ; yet that doctrine was effectually exploded in Tullett vs. Armstrong, and Scarborough vs. Borman, 4 Myl. & Cr., 377, by Lord Cottenham, who, as master of the rolls, had decided the case of Massey vs. Parker, 2 M. & K., 174, the strongest of the cases, in which was enunciated the adoption of the ruling first above mentioned. The new principle then asserted in those cases of Tullett vs. Armstrong, and Scarborough vs Borman, supra, was distinctly this:
That no matter when property was vested in a woman for her separate use, whether she were single or married, that such property would shift with her condition ; be at her disposal when single or discovert, and come anew into operation and vigoj, when marital relations were entered into. And that ruling, it would seem, has been adhered to, both in England and in this county. (Sto. Eq. Jurisp., § 1384; Newlands vs. Paynter, 4 Myl. & Cr., 408; Hawks vs. Hubback, 11 Law R., (Eq. Cas.,) 5.)
In determining whether a separate estate, as to any of the cestui que trusts other than the mother, was intended to be created by the deed from Hannah Letcher to Charles Bobb,
With matters then in this situation, the deed is made, the controlling words of which evidently are “That they (referring t.o the wife and children) may have, hold and enjoy the same, (referring to the property granted,) with all the rights, improvements, buildings, &c., separate from the said Charles Bobb, their respective husband and father, as their own, sole, individual and exclusive property.”
This clause, I am confident, discloses the very gist of the grantor’s intention, and.sets up restrictions as to any rights, which Charles Bobb, “their respective husband and father,” might otherwise have acquired ; but raises no such barrier as against any one else whatever.
It is true that no technical words are necessary to the creation of a separate estate, but all the authorities agree, that the expression of the intention to do this must be clear and unequivocal. Judge Story (Story Eq. Jur., § 1381,) on this point says: “For the purpose must clearly appear beyond any reasonable doubt; otherwise the husband will retain his ordinary legal and marital rights over it,” (the property.) In Rudisell vs. Wotson, 3 Dev. Eq., 430, in considering'the effect oí a bequest to a married daughter in these words, “ to her and her heirs” proper use, C. J. Ruffin, speaking with regard
In Brown vs. Clark, (3 Ves., 166,) where the testator had devised to his brother and sister, Mary Brown, certain sums of money, the interest to be equally divided between them, “the principal to be lodged in bank or some other secure place; at the death of my sister, Mary Brown, then one-half of the principal to be equally divided Between her children ; the husband
These cases, and a great number of others of like sort, abundantly show, that the courts will not suffer the marital rights of the husband under the common law to the property of his wife, whom he is bound to support, to be defeated by inferences or conjectures; that this doctrine of a woman’s separate estate, being a complete innovation on the common law, should not be given the loose rein of an nnguarded interpretation, but should be curbed by just and reasonable restrictions. Otherwise an innovation, once established, would soon become the prolific progenitor of a countless offspring.
And the courts do but hold the same views with regard to the particular innovation under consideration, that they do towards similar departures from legal rules ; as for instance, cases involving the doctrine of resulting trusts, or that of part performance.
For . the natural tendency of all these innovations, like that of breaches, is to widen ; and therefore the most cogent reasons arise to curb them within due bounds.
Mr. Hill, in his work on Trustees, (p. 421,) lays down the doctrine without any qualification, that “ The trust must be for the benefit of the wife, exclusive of any other person ; and a gift for the benefit of the children, as well as the wife, has been held not to create a trust for her separate use; although the terms of the gift would otherwise have been inopera
The circumstance however, that the mother is included with the children .in the same gift, should not be without its due weight in determining, whether general words, which were clearly and immediately applicable as against “ their respective husband and father,” should be so extended as to operate to the exclusion of the jus mariti of the husband 'of her, who at the time the gift took effect was only a six months’ infant.
That the donor intended to exclude the husband and father is manifest; that she so intended as to any other person is by no means “ clear” nor “ unequivocal.” And the meaning of the deed of gift still remains as when drafted, unless an alter-' ation therein"' was effected by reason of the decree, whose effect thereupon will now be considered.
And as before said, the petition is to be viewed in connection with the decree. It will be observed from the language of the petition, that Mary H. Bobb, the mother, was dead ; that she left two children in addition to those who were named, in the deed ; that all the children were still minors, and the trustee, being desirous of selling one of the pieces of the donated property, “ obtained legal advice to the effect, that as the said children of said Charles Bobb, the parties holding the equitable interest aforesaid, were minors under the age of twenty-one years, they could not legally give their written consent to sell the said lot of ground, so as to pass and convey the title in and by virtue of said deed drawn as aforesaid, and said plaintiffs aver, that the said scrivener made the said mistake, (alluding to the mistake made by the draughtsman, in inserting written instructions from the donees as necessary before the trustee could convey,) in drawing the said deed as aforesaid; and the said plaintiffs wish and are desirous, that the said real estate should be managed or disposed of in the way and manner which will be to their best interest and advantage, and that the original and avowed intention and under
It is true, that some loose language is employed in the petition and decree, but it must all be construed with reference to the point in hand, to the gravamen of the relief sought; and this is more especially the casé, as the decree sets forth with precision the particular mistake referred to, and then says: “The court doth therefore order, adjudge and decree, that said deed be reformed, and that said mistake in said deed be corrected, as asked for in said plaintiffs’ petition.” Conceding then, (for the sake of argument, and my remarks in that'regard are to be taken in that light) that the decree could have accomplished all that appellant claims it did, still I do not see how any different result, than the one already indicated, would follow; for no change is sought to be wrought but in the single particular I have mentioned, leaving the status of the parties to tiie deed otherwise untouched.
If Mrs. Bobb had remained alive at the time the reformation of the deed was attempted, is there anything in either the petition or decree, or circumstances of the parties, to show that that movement would not have been made? Not at all. The same necessity for “ written instructions” from the children in order to part with their interests would still have existed — and as a matter of course, the same reason for obviacing that necessity would still have existed.
Had the mother remained alive, she would only have been í mere formal party to the decree, for so far as her interests
This also goes to show, in addition to what has already been said, that no modification of the deed was attempted, except as to restrictions thrown around the trustee’s power of disposal.
But even if you take the decree just as it is, with all its surplusage, it makes no stronger case than that of Ashcraft vs. Little, supra; as the decree in this case, like the deed of gift in that, extends to the sons as well as to the daughter.
Whether then we regard the circumstances surrounding the parties at the time the deed was made, the language of the deed, its evident and clearly expressed intention, as contra-distinguished from a meaning based ‘on inferences or conjectures, or whether the very words of the decree are to govern, lean only come to the conclusion, that so far as the daughter,. Mrs. Taylor, was concerned, no separate estate was designed to be created by the deed, or was established by the decree. And it may not be improper to add, that, at the last March term of this court, the late Judge Ewing fully concurred in this opinion. I am for affirming the judgment.