92 Va. 468 | Va. | 1896
Lead Opinion
The liability of the equitable separate estate of a married woman after her death, for her general engagements, is the important question that confronts us in this case. Is it liable at all; and, if so, in what manner and to what extent % This precise question, so far as I am aware, has not heretofore been directly presented to this court for decision.
The solution of this vexed question depends upon and must be governed by the nature of the separate estate and the extent of the power of the married woman over it.
Whatever may have been the adjudications and judicial expressions of the courts of England and of this State in the past, it is now settled, both there and here, that where property is settled to the separate use of a married woman, and the power is given to her, expressly or impliedly, to deal with it, she has the other power incident to property in general— namely, the power of creating debts to be paid out of it; and a court of equity will give effect to them, not as personal
Where the instrument creating the separate estate prescribes one mode of alienation by the wife, the prescribing of that mode is not to be construed as an intention to exclude alienation by her in any other manner, unless an intention to do so can be clearly gathered from the face of the instrument. Lee v. Bank of U. S., 9 Leigh 200 ; Woodson, Trustee, v. Perkins, 5 Gratt. 345 ; Frank & Adler v. Lilienfeld et als., supra, and Christian & Gunn v. Keen, supra. This is said by Mr. Burks, in his admirable treatise on “ Separate Estates,” p. 38, to be the decided weight of authority, both English and American.
When the separate estate is created, it is, nevertheless, competent for the settler to indicate what shall be the extent of her control over it. He may, contrary to the course of the common law, impose restraint, either absolute or qualified, on her power of alienation, and his intention to restrain maybe either express or implied, but in either case it must be clear. When such intention appears, orean be gathered from the whole instrument—the language used, the scheme of settlement, or the facts and circumstances of the particular case to be gathered from the instrument—equity will respect it and enforce the restraint that may be imposed. Bain & Bro. v. Buff's Adm'r et als., supra; Burks’ “Separate Estates,” 33; and Bishop on the Law of Married Women, sec. 859.
So much for her power over her separate estate.-
The next inquiry is : Of what may the separate estate consist? And according to what rule is its nature and extent to be determined and fixed ? Is the nature of the estate and the degree of the interest of the married woman in it to be fixed by certain arbitrary rules, which may or may not in the particular case create in her a separate estate to the extent intended by the settler; or is it to be arrived at by the natural and reasonable method of inspecting the instrument creating the estate and discovering the intention of the settler, and then construing the instrument and fixing the character of the estate and the quantity of the interest of the married woman in it according to such intention ?
When equity first created the separate estate, the main purpose was no doubt to intercept the marital rights of the husband ; but, if it ever restricted the separate estate to such of the property of the married woman as her husband would have been entitled to by virtue of his marital rights at common law, such rule has long since been departed from. ■“Property of every kind, real or personal, and any interest therein,” says Pomeroy in his Equity Jurisprudence, sec. 1103, “ may be conveyed, settled, or held to the wife’s separate use.
“It was contended at the bar,” said Lord Westbury in Taylor v. Meads, 4 De Gex, Jones and Smith 597, “that the effect of this devise was to give the married woman an estate to the separate use only during the joint lives of herself and her husband, with remainder in her in fee. But that is not the true construction of the will. The estate given to Elizabeth Meads” (who was the married woman) “is one and entire, being the equitable estate in fee, with a declaration, the effect of which is that her husband shall have no interest in the estate so devised, nor shall the wife be under any disability with respect to such estate by reason of her existing coverture, but shall have the same rights of enjoyment and disposition as if she were a single, and not a married woman.”
In Burging v. McDowell et als., 30 Gratt. 236, it was held that the married woman took a separate estate in fee in the land under the settlement made upon her, and that her sole deed vested in the purchaser, to whom she had sold and conveyed it, a perfect title.
The equitable separate estate may, therefore, consist of any property, and of any interest therein. It is what the settler intended it to be, according as the intention may be ascertained by the true construction of the instrument by which-the trust for the separate use is created, and is not arbitrarily limited to the interest or property covered by the marital' rights of the husband at common law.
In the case of Frank & Adler v. Lilienfeld et als., 33 Gratt. 399, Judge Burks, in delivering the unanimous opinion of the court, said: ■“ I think the English rule, as stated by Lord Thurlow, is substantially correct; and, therefore, to satisfy a general engagement of the wife, (and by general engagement I here mean an engagement made with reference to her separate estate, so as to make it liable in a general sense, but which does not amount to a specific lien of any sort upon such estate,) the personal property, where the interest of the wife is absolute, and there is no restraint upon the alienation of such property imposed by the instrument creating the separate estate, may be sold by the decree of the court, and, under like conditions, the rents and profits of the separate real property may he subjected ; and to that end, following the analogy of the law so far, such real estate may be leased from time to time, by order of the court, until the debt out of the rents be discharged; but in no case, I think, should the real estate, or any part thereof, he sold to satisfy the debt of the wife, unless such debt be one secured by specific lien on such estate, created in a mode which conforms to the mode required for a valid disposition by her of that estate. If the creditor desires to bind the real estate in such
I have quoted thus fully from this opinion, because it was concurred in by all the members of the court, and lays down with great accuracy and clearness the rule as to the liability of the equitable separate estate, according to the long course of decision in this State, except that, so far as I am aware, it is the only case in which it is stated that in no case should the real estate or any part thereof be sold to satisfy the debt of the wife, unless such debt be one secured by specific lien on such estate. Nevertheless, this court, in the enforcement of the general engagements of the wife, has never gone further than to subject to their payment the personalty and the rents and profits of the realty; and the doctrine that the corpus of the real estate—certainly as a general rule—will not be sold to satisfy the general engagements of a married woman is deeply imbedded in the law of this State. This is sustained by an unbroken line of decisions, many of which are collated in Burks’ “Separate Estates,” p. 22, note. If we say now that these decisions are all wrong, and that the corpus of the real estate may be sold in all cases, will not our successors have more right to reverse our decision than we have to reverse those of our predecessors, that may be said to be hoary with age? These decisions were made by this court when it was composed of judges of eminent ability and learning, and are entitled to the greatest weight and respect. As was said by Chief-Justice Church, in Yale v. Dederer, 68 N. Y. 335, in delivering the opinion of the Court of Appeals of New York upon a similar question: “It is better to adhere to a rule of doubtful propriety, which has been deliberately settled for a long series of years, and repeatedly
But while this court has nevercgone further than to subject the personalty and the rents and profits of the realty to the payment of the general engagements of the married woman? yet the right to subject them is not confined to the period of the coverture. If these are liable for her debts during the coverture and may be subjected to that end during that period, no good ground is perceived, nor can any valid reason be assigned, why they should not continue to be liable after the termination of the coverture, whether by her own death, or that of her husband, or otherwise, unless the estate is determined by the particular event that terminates the coverture. Once liable, the right to subject it, to the extent of the separate estate, should continue until the debts are discharged.
In Ropp v. Minor et als., 33 Gratt. 97, 116, Judge Burks said: “ The subsequent discoverture * * * cannot $er se give any other or greater force and effect to her prior engagements than they had during the coverture. Such engagements did not bind her personally, either at law or in equity, so as to warrant a personal judgment or decree against her. They affected her separate estate to the extent, and only to the extent, of her then existing powers over it. They had no other operation. Her subsequent discoverture could not, upon any principle known to us, operate by estoppel or otherwise to enlarge the liabilities of that estate imposed by the engagements when entered into.” If, in the
In Burnett and Wife v. Hawpe, 25 Gratt. 481, the suit was brought, after the termination of the coverture by the death of the husband, against his widow, who had married again, to subject her separate estate to the payment of a debt she had contracted during the coverture with her first husband. Having sold after his death a part of the land settled to her separate use, the purchaser was decreed to pay to the plaintiff the balance he owed her on the land, it being considered a just compensation for the rents and profits that might have accrued from the land if she had not sold it, in satisfaction pro tanto of his claim; and an account was
And so in Leake, Trustee, v. Benson, 29 Gratt. 153, the rents and profits of land, which had been purchased with the proceeds of the sale of the land in which the feme covert had an equitable separate estate for her life, were subjected to the payment of debts contracted by her after the termination of the coverture by the death of her husband, and also for debts contracted by her during the coverture as surety for him.
These two cases clearly decide, in the result, that the rents and profits of real estate settled to the separate use, which accrued after the termination of the coverture, were liable to the payment of the general engagements of the married woman entered into by her during the coverture; and refute the contention that the right exists to subject only such as accrue during the coverture, and that the liability of her separate estate for the payment of her debts ceases with the termination of the coverture. It may be said that this question was not raised in those cases, and was not therefore considered by the court. It is true that the precise question does not appear to have been discussed by Judge Staples, who delivered the opinion in each case, but it is not to be presumed that it escaped the attention and consideration of himself and the other able and vigilant judges who then administered justice from this bench.
The settlement in this case was made upon Mrs. Haxall by her mother during the coverture. An examination of the deed of settlement shows that it vested in Mrs. Haxall an equitable separate estate in fee in the real estate. While the deed enumerates certain specific powers (and they are very broad)
Indeed, we are not without precedent in this respect. At common law lands of the debtor could not be taken to satisfy his debts, except judgments due to the king, and judgments did not therefore operate as liens on land; but, by the statute, (Westm. 2, 13 Edw. I., ch. 18,) a new execution was provided, the writ of elegit, which enabled the creditor to extend a moiety of the lands of the debtor, either in his own hands, or in the hands of a purchaser, or of the heir, to satisfy the judgment, which, by the judicial construction given to the writ, was said to be a lien on the land. Borst v. Nalle et als., 28 Gratt. 423, 428, and Stileman v. Ashdown, 2 Atkyn’s Rep. 608; S. C., Ambler 13. But while the writ gave the creditor the right to take the rents and profits of a moiety of the land at an estimated annual value until his debt was satisfied, yet it was held, Lord Hardwicke leading the way in Stileman v. Ashdown, supra, and Lord-Pedesdale following in O'Gorman v. Comyn, 2 Sch. & Lef. 138, that a court of equity, where the rents and profits would not pay the judgment within a reasonable time, would sell a moiety of the land, and apply the proceeds of sale to the payment of the debt; and that whilst equity could not change the rights of the parties, yet it would accelerate the payment of the judgment by directing a sale of a moiety of the land, to the rents and profits of which the creditor was only entitled under his writ of elegit, and not compel him to await the tedious opera-_ tion of its discharge out of the annual rents and profits. See also 2 Robinson’s (old) Practice 46; 2 Story’s Eq. J,, sec. 1216 (a and c); Curtis v. Curtis, 2 Bro. C. C. 634; Blow v. Maynard, 2 Leigh 29 ; Tennents Heirs v. Pattons, 6 Leigh 179, 196, and Burton v. Smith et al., 13 Peters 464.
The only difference between that class of cases and the one before us is that in that case equity was asked to enforce a
The principle which justified a sale of a moiety of the land in the cases decided by Lords Hardwicke and Bedesdale applies with all its force to the case before the court. I am of opinion, therefore, that, where there is no equitable separate personal estate of the wife applicable to the discharge of her general engagements, or, if so, that it is insufficient for that purpose, and the rents and profits of the real estate constituting her equitable separate estate will never discharge the debts, or not do so within a reasonable time, it is proper to decree a sale of the land for that purpose, and that to this extent the general rule laid down in the case of Frank & Adler v. Lilienfeld et als., supra, should be qualified.
What is reasonable time is a matter of discretion of everyday’s occurrence in courts of equity. In respect to this matter, they might well adopt, as a general rule, by way of analogy to the law, the period which the Legislature, in the statute regulating the enforcement of judgment liens in equity, has, in its wisdom, fixed as a reasonable time within which, if the rents and profits will discharge the judgment, the land should not be sold. Code of Va., sec. 3571; Report of Revisors (1849), p. 918.
For the foregoing reasons, I am of opinion that there is no error in the decree of the Chancery Court in directing, under the particular circumstances of this case, a sale instead of the renting of the real estate, and am, therefore, for affirming the same.
Concurrence Opinion
concur in the opinion of Biely, J.
Dissenting Opinion
dissenting:
I regret that I am unable to concur in the opinion of the court.
The principles which ought to control in the decision of this case, in my judgment, have been recognized and acted upon for nearly three-quarters of a century, in a long line of decisions, beginning with West v. West, reported in 3 Band. 373, and coming down to Taylor v. Cussen, 90 Va. 40. This court has never recognized the right of a creditor of a married woman to subject the corpus of her equitable separate real estate to the payment of her general engagements during coverture, but such right, whenever asserted, has always been denied.
How the death of the wife can, upon any principle of law, enlarge such a creditor’s rights, and enable him to subject, after her death, property which he had no right to subject during her coverture, I am utterly unable to understand. No reason has been, or, in my judgment, can be, given for the exercise of such a right after her death which does not apply with equal force during coverture.
The principle involved in both eases is the same.
The necessary effect of this decision-is, therefore, to overturn a rule of law imbedded in our decisions, and which has become a rule of property, and thus disturb vested rights.
If the rule of law governing this court in its former decisions is founded upon incorrect principles, and fails to accomplish fully the ends of justice, the remedy is with the Legislature. Laws by that body operate prospectively only, whilst laws made by the court operate retrospectively as well as prospectively, and are subject to the double objection that they are made without authority and disturb vested rights.
Affirmed.
