12 Gratt. 425 | Va. | 1855
I think that the-bequest of slaves and other property made by Mrs. .Rose to trustees for the use and benefit of . her daughter Mrs. Coupland, or her heirs, was of an absolute interest in the property, and not of a life estate only; and that the limitation over to her son Grustavus A. Rose or his heirs forever, in the event of the death of her said daughter without an heir or heirs of her body, is void for remoteness. The cases on this subject are very numerous; and it is unnecessary to review of even cite them; as, in the view which I take of this case, it is immaterial whether the said bequest be of an absolute or of a life estate. I will consider it, for the purposes of this case, as a bequest of an absolute estate.
I am of opinion that it is a bequest for the separate
In the case under consideration, whether we look to the particular words used or the whole context of the will, the intention of the testatrix to exclude the marital rights of the husband, and secure the property to the separate use of the wife, is plainly apparent. In the first place, the property is given to trustees; which is a circumstance in favor of the intention to give it to the wife’s sejiarate use, though not of itself a sufficient evidence of such intention. 2 Roper 1415. In the second place, it is “ to be held by them in trust, only for the use and benefit” of the wife or her heirs. These words are at least as strong as some of those which, we have seen, have been held, per se, to create a trust for separate use. It is difficult to perceive any substantial difference between the words “ only for the use and benefit of the wife,” and the words, “for her sole use and benefit,” or the words “ for her own use and benefit, independent of any person.” In the third place, the testatrix expresses her “ will and desire to
Here an intention is plainly indicated that neither the wife nor the husband should have a right to sell or otherwise dispose of the property; which is inconsistent with the idea of its being given, subject to his marital rights; in which case the jus disponendi would have been a necessary .incident. It is wholly and solely confided to the discretion of the trustees in what manner the wife (not the husband, nor even the husband and wife) “shall receive and enjoy the profits.” These are the very words which were used in Tyrrell v. Hope, 2 Atk. R. 558; and which the master of the rolls observed could admit of no other construction than that the property should be for the wife’s separate use. He asked to what end she should receive the profits if they were to be the husband’s property the next moment; and added, that the word “enjoy” was very strong to imply a separate use to the wife. 2 Bright 211. The intention to create a trust for the wife’s separate use is at least as plain in this case as is that of West v. West’s ex’ors, 3 Rand. 373, in which this court unanimously held that a separate estate was given. See also Scott v. Gibbon, 5 Munf. 86; Smith v. Smith’s adm’rs, 6 Id. 581; Markham v. Guerrant, 4 Leigh 279; Lewis v. Adams, 6 Id. 320; and Perkins’ trustee v. Dickinson, 3 Gratt. 335.
I am further of opinion that Mrs. Coupland has no power to alien her separate estate or any part of it. The jus disponendi is an inseparable incident of property held by a person who is sui juris. But nothing is now better settled than that it may be severed from
This is the doctrine in England. In the United States, the right to restrict the power of alienation of a separate estate is universally admitted. In many of the states it has even been held that the wife has no such power, unless it be given her by the instrument
In the case of the Methodist Episcopal Church v. Jaques, 3 John. Ch. R. 77, Chancellor Kent was of opinion, that “instead of holding that the wife is a feme sole to all intents and purposes as to her separate property, she ought only to be deemed a feme sole, sub modo, or to the extent of the power clearly given by the settlement. Instead of maintaining that she has an absolute power of disposition unless specially restrained by 'the instrument, the converse of the proposition would be more correct, that she has no power but what is specially given and to be exercised only in the mode prescribed, if any such there be.”—“ Perhaps we may say, that if the instrument be silent as to the mode of exercising thé power of appointment or disposition, it intended to leave it at large to the discretion or necessities of the wife; and this is the most that can be inferred.” On appeal to the Court of errors this opinion was pronounced to be erroneous, and it was held that a feme covert may dispose of her separate estate as if she were a feme sole, unless specially restrained by the instrument under which she acquires it; and • that the specification of any particular mode of exercising her disposing power, does not deprive her of the right to pursue any other mode not expressly, or by necessary construction, negatived in the settlement. 17 John. R. 548. In Virginia, the right to restrain or interdict the power,'has been expressly recognized and affirmed in several cases. West v. West’s ex’or, 3 Rand. 373; Vizonneau v. Pegram, 2 Leigh 183 ; Williamson v. Beckham, 8 Leigh 20 ; Lee v. The Bank of the U. S. 9 Leigh 200. The only question seems to have been whether the specification of one mode of disposition in the settlement is an implied
The right to restrain or interdict the power of alienation of a separate estate being thus established, the question now arises, whether such right was exercised by the testatrix in this case? I think that it was. It is not necessary that the power should be excluded in express terms. It may be excluded by implication. Its exclusion is often, if not generally,
If the power of disposition was not given by the will, it has not been acquired by any thing which has since happened in this case. It can arise, from no act or laches of the trustee; who, no more than the wife or her husband, can defeat the provisions of the settle
It results from what I have said, if it be well founded, that neither Coupland and wife nor Mrs. Coupland had any power to sell or convey the slave in controversy; and consequently that the plaintiff in error, who claims only under them, is not entitled to the slave. It now remains only to enquire whether the defendant in error is entitled.
The bequest was to three trustees jointly, of whom the defendant in error is the sole survivor. There can be no doubt but that the three trustees, if all alive, would be entitled to demand, recover and hold the slave in trust under the will. The interposition of trustees seems at one time to have been considered necessary to protect the wife’s separate interest. It has been long settled, however, that if no trustees be interposed by the settlement, the husband will be held in equity to be a trustee for the wife. Still, it is generally, if not always, better to have disinterested trustees; who will be appointed by a court of equity if necessary. The legal title remains in the trustees during the continuance of the trust; whether, in its general character, it be an active or a passive trust: for it is liable at any time to be stimulated to activity by any attempt to divert the property from the purposes of the trust. In this case a large discretion was given to the trustees in the management of the property. Though they were authorized, in their discretion, to permit the husband and wife to hold it, yet they had a right to take possession at any time, and it was their duty to do so whenever the safety of the property required it. Whether, the trust being joint, the defendant can alone perform it or not, the legal title to the property is in him by survivorship, and he
I am for affirming the judgment.
The other judges concurred in the opinion of Mon-cure, J.
Judgment affirmed.