6 Fla. 430 | Fla. | 1855
Lead Opinion
delivered the opinion of the Court:
This case depends upon the power of a husband, under a marriage settlement, to convey an interest in certain slaves, part of the property settled. Robert Harrison, Sr., previous to his intermarriage with his present wife, then Miss Mary M. Cooper, in connection with his intended wife, conveyed to trustees a large number of slaves, his own property, and also other property of hers “ in trust to the use and behoof of himself and his wife for and during their natural lives, and after the determination of that estate, in trust for the use, benefit and behoof of the child of
After the intermarriage of his daughter Mary with John Sanderson, he conveyed on the 4th of January, 1844, eleven negroes to a trustee for the only proper use, benefit and behoof of his said daughter’.
Mrs. Sanderson having died, her husband filed his bill asserting title to the property under the conveyance aforesaid, and by virtue of his marital rights, against Robert Harrison, Sr., and the trustee of his wife, and after hearing and argument of counsel, a decree was rendered by the Circuit Court of Duval county “that Robert Harrison, Sr., is not heir or distributee of the said Mary Sanderson, and has no right, title or interest in and to the estate of the said Mary Sanderson in remainder, reversion or otherwise and that the complainant Sanderson is entitled to the possession of said slaves,” and an order was passed for their delivery to him by said Harrison.
The present bill is filed by Mrs. Harrison, wife of Robert Harrison, through the executor of the surviving trustee, and by her other children, claiming that the conveyance to Mrs. Sanderson was invalid and carried no interest to her nor to her husband, Sanderson.
This, of course, involves an inquiry into the marriage, settlement between Harrison and his wife, and the nature, and extent of the interest of the parties to it. It has been assumed that a separate estate is created by it for Mrs. Harrison, which we think by no means clear. The property is not settled to her sole or separate use ; the words, are, “ to the use, benefit and behoof of himself and wife.”'
The books are not silent as to this subject. In an elaborate opinion delivered by C. J. Saffold, of Alabama, the Supreme Court of that State say, “the property (slaves) is declared to be for the joint use and support of husband and wife and subject to their joint possession. Was any case cited in argument where, by construction, so much violence was done to the language of the deed as to maintain that a clause expressly creating an estate for the joint use and support of two was intended to create a separate property for the sole use of one ?” Clancy, (p. 269) after a very learned investigation of the whole subject and a review of the cases, says: “ All these cases clearly prove that there must be a manifest intention evinced by the language of the donor that the wife shall ha-ve the exclusive property in the gift, without which Courts of Equity will not suffer the legal rights of the husband to be superseded.” They then say, “they come to the conclusion that this gift cannot enure to the separate usé of the wife and child or either, and that the marital rights of the husband have not been excluded.” Haskins vs. Coalter, 2 Porter, 473; see also Wardell vs. Chastain, 17 Con. Eng. Ch., 225; Ibid., 9 Simon 525.
A reference is given in a note to Hill’s work on Trusts, p. 420, n. by Wh. to Bender vs. Reynolds, 12 Ala., 441 and Geyer vs. Br. Bank, 21 Ala., 414, but we have not been able to procure them. 4 Ired. Eq. 241.
It may be proper to remark that more stringent expressions would seem to be required by the later authorities to
Even if the wife have a separate estate the inquiry arises, as to the interest of the husband, Robert Harrison in the property conveyed, and the broad ground has been assumed that he had none that he could convey. It is very clear that he has an interest if she has one, and .if he has none she is in the same condition. The- authorities as to the relative rights of the two parties will be found to be as follows: “ Where property belonging to the husband and of which he is the purchaser, by settlement is vested in trustees in trust, to pay the income to the husband and wife jointly during their joint lives, the husband alone will be entitled to receive the whole income.” Hill on Trusts, 427; Duncan vs. Campbell, 12 Simons 616.
“ A husband in equity as well as at law is entitled to the receipt of the income ofhis wife’s property as a compensation for his liability to maintian her.” Hill on trusts 410 n. 3 Simons 370; 1 Roper Hus. and Wife, 273.
“Consequently he will be entitled to the uncontrolled beneficial enjoyment of her life interest unless he deserts her.” Hill 410.
In Jones vs. Mayrant the Court of Appeals of South Carolina, say “ it was decided in Barrett vs. Barrett, that the husband supporting the expenses of the household, was entitled to the whole of the profits of the trust estate settled jointly on the husband and his wife. Under such a settlement the creditors of the wife would not be allowed to deprive the wife of her maintainance.” 4 Dess. 602. In the case of Napier vs. Wightman the same Court gay “this settlement provides that the defendant Wm. J.
The terms of the deed were to trustees in trust for the joint use of.husband and wife, during their joint lives, then to the use of survivor during life &c. The same Court says farther in the same case: “ I shall not stop here to enquire whether under the Statutes of uses the defendant Wight-man has not a vested interest in the whole of the real estate during life. It is very clear that under the provision in the settlement, he i¡s entitled to the income of the whole estate real and personal, for the joint lives of himself and wife, and during his life if he survives, with power of disposition as to one half absolutely. Ibid. p. 370.
Whilst then we have seen that Harrison had and interest in the trust estate, the question yet arises as to his power to convey, which also has been earnestly and seriously denied and questioned. In the case of Shomo vs. Bobe decided at the present term, we had occasion to express our views on the subject of alienation in general, and we desire to refer to them in connection with this case.
On this subject before referring to authorities more directly in point, it may be well to refer to the general law as well as to the reasons for its existence. “ A conveyance toB. in trust or for the use of C., or where, only the equitable title passes as in case of a, conveyance, to B. to the use
Our own Legislature in the law passed to secure the rights of married women gives the right of disposal to the man and wife. We will add that in speaking of the power of alienation, Blackstone says: “we must consider rather the incapacity than capacity of the several parties, for all persons in possession are prima facie capable of conveying and purchasing, unless thé law has laid them under peculiar disabilities,” &c. and among these he enumerates persons attainted of treason, idiots, &c. &c. 2. Black. Com. 290.
Whilst such is the general rule, we shall find no diversity as to the particular subject of inquiry. “A perpetuity will no more be tolerated when it is covered With a trust, than when it displays itself undisguised in a settlement of the legal estate.” 1 Lewis on Trust, 138.
“It is absolutely against the constant course of Chancery to.decree a perpetuity, or give any relief in that' case. 1 Chan. Reports, 144 ; 5 Jac. Law Dic., 143.
Blackstone in his Commentaries, speaking of the changes made by Courts of Equity in the 'doctrine of uses, says: “ They have raised a new system of national jurisprudence, by which trusts are made to answer in general, all the beneficial ends of uses, Without their inconvenience and frauds.' The trust will descend, may be alienable, is lia-: blé to debts, to executions on judgments, &c.” 2 Black. Coms., 337.
“Th e prima facie rule of trusts, is that the intention of the Settler shall be carried into effect;, but the intention cannot
In one of these cases, the Lord Chancellor says, “there is no doubt, generally speaking, that if property is given to a man for his life, the donor cannot take away the incident to a life estate. Equity.making a feme the owner of it, and enabling her as a married woman to alien, might limit her power over it, but the case of a disposition to a man, who if he has the property has the power of aliening, is quite different.” 6 Simon, 434.
“ A trust is assignable. An equitable interest may be assigned, though it be a mere possibility, and either with or without the intervention of the trustee, and the assignee of the cestui que trust may call upon the trustee to convey to him, and on his refusal may file a bill to compel a conveyance without making the assignor a party,” Lewin on Trusts, 499; Philips vs. Bridges, 3 Vesey, 127; Goodear vs. Ellison, 3 Russ. 583.
In Lady Arundel vs. Phipps, which was a settlement to the use of Lord and Lady Arundel for their lives and the life of the survivor, Lady Arundel became equitable owner
In Ford, trustee, vs. Caldwell, the deed conveyed to the joint use of husband and wife for life, not subject to their debts, and after the death of either, to the use of the survivor for life, and after the death of the survivor to the use of the children of the marriage. Speaking of this state of facts, the Supreme Court of South Carolina, Judge O’Neill pronouncing the opinion of the Court, says: “ I hold, the trust was executed in the husband, at least for his life. For, according to the deed, he was entitled to the possession of the slaves; having this, he had both the legal and equitable estate for his life. For the trustee had nothing to do with it during this time, he had delivered the slave to one who was under no legal disabilities; this was equivalent to a conveyance to him for the time he was to possess it. For' the condition annexed to the trust, not to be subject to the debts or contracts of the husband and wife, is void. The husband having both the legal and equitable estate could! transfer it, which he did, to Chur.” The general property was in Ford, trustee, but he had parted with the right to-possess it to the cestui que trusts, Swift and wife, for life. At law, the wife’s being and rights are merged in the husband, and hence his possession for the joint use of himself and wife for life, made the property for that time his entire qualified legal estate.” This was a suit at law instituted-by trustee against the purchaser. 3 Hill, 249.
In Love vs. Hodges, which was to a trustee for husband and wife, the same Court quote the same case as:
An idea prevails that though the income and profits may be assigned, yet the body, the corpus of the estate, may not be. If this be the case, we have not perceived it in the general rule stated nor in the particular cases cited.
There is another aspect of the case worthy of consideration. Suppose a decree made in favor of Mrs. Harrison* as contended for, and the property restored, who would take the possession, Who be entitled to the income during the life of Harrison ? The answer is not a difficult one, the husband, Harrison himself, and no other person, so that the suit may be regarded, and properly cannot be regarded in any other light, than as one instituted by him and for his benefit against his own assignee.
Were these authorities less clear and satisfactory than they seem to us to be, we yet think the decree in favor of Sanderson against Harrison conclusive as far as his possession of the property, his interest in it and his power of alienation are concerned. It was the decision of a Court of competent jurisdiction as to these issues on the subject itself, and whether erroneous or not it constitutes the law of the case. We shall not undertake to say that this'decision is conclusive on Mrs; Harrison in evéry possible
As far as the law is concerned, we find Robert Harrison, the husband, rightly entitled to the possession of the property, to the income and profits arising from it,—that he had a right to sell to the extent of his interest, and his assignee to hold it.
■ We have not referred to the fact that the assignment to Mrs. Sanderson does not conflict with the main design of the deed of trust, but is merely in advance of it. The children of the marriage are expressly provided for in the settlement. Nor is the case altered by the fact, that by the dispensation of Providence the husband, rather than the wife, is before us claiming the benefit of the last settlement. He has been decided to be entitled to her rights and interests, and is entitled to the same favorable consideration that she would be if contending for the property herself.
It remains to dispose of the case as far as the children of Mrs. Harrison are concerned, who claim the remaining interest after the termination of the life estate. The question of their interest can only be before us for one purpose, and that is for the protection of the property, so
We have not considered whether, if Robert Harrison, by any casualty should become unable to support his wife, she might not have a right to call upon Sanderson to contribute to the extent of his interest. Such case has not been presented by the proof nor the pleadings, nor have we thought proper to determine the question of her right in the event of his death and her surviving. These questions will be appropriately decided when properly presented.
The decree of the Circuit Court overruling the demurrer will be reversed and set aside, and the case remanded with directions to dismiss the bill of complaint and dissolve the injunction without prejudice to other rights and interests than those now determined.
Delivered the following
Dissenting Opinion
DISSENTING OPINION.
The demurrer in this case raised numerous interesting questions, both with respect to the form and substance of the bill, all of which were very elaborately and ably argued by the counsel engaged on either side. In the opinion delivered by the Chief Justice as the opinion of the Court, there is no reference to the points made by Counsel in regard to the form of the bill, but the views of the Court are confined exclusively to the substance. In em
First. It is assumed in the opinion, that the words of the deed of settlement, executed in anticipation of her intermarriage with the defendant Robert Harrison, did not create a separate estate for Mrs. Harrison, and the following words quoted from the deed of settlement are refer-ed to- in support of that position viz: “ to the use, benefit and behoof of himself and wife.”
I readily admit that such words do not ordinarily, according to the authorities, create a separate estate for the wife, they not implying by themselves, an intention to exclude the marital rights of the husband. The doctrine on this subject depends, for the most part, upon implication and construction. The rule is, that where by the terms of the deed, or settlement, the intention to exclude the marital rights of the husband, is already expressed, or can be reasonably implied, in such case a trust for the wife will be declared. No particular form of words is essential; the intention to exclude the marital rights of the husband is all that is required- to be shown. Clancy on Hus. and Wife 262, 2 Bright’s Hus. and Wife 211, 2 Btory’s Eq. Ju. § 1381.
The case of Tyrrel vs. Hope (2 Atk. R. 558) is directly in point and fully sustains me in this view. Lord Hardwicke held that a promise in writing from the intended husband to the intended wife, that “she should receive and enjoy the issues and profits of one moiety of the estate then in the possession of her mother, after the decease of her mother,” gave to the wife an estate to her separate use. Such assuredly would not have been the effect and operation of those words, had the settlement been made by a third party; but being made by the intended husband, his Lordship said that the stipulation could bear no other construction, although the words “separate use” were not to he found in it, for as he very justly remarked, to what end should she receive the rents and profits, if they became the property of the husband the next moment? Upon the same principle it is, that gifts and presents from the husband to the wife, though made after marriage, will be supported in equity against himself and his representatives;
But there are other words to be found in this deed(not noticed or referred to'In the opinion'of the Oo urt,) which conclusively settles the interpretation to be given to the deed of settlement. It is expressly provided that “the property conveyed is not to be liable to the payment of any debt, judgment, execution, account demand or otherwise,” of the husband, and this stipulation is coupled with a proviso “ that the husband and wife, with the approbation and assent of the trustees, may at any time, by writing or writings tinder their respective hands, and attested by tWo or more credible witnesses, revoke, and make void, alter and change, all and every of, or any of the trusts or estatés hereinbefore limited &c.” Wow if these two' stipulations-, do not each of them clearly indicate the intention to exclude the-marital or common law rights of the husband; (and that is all that is required; in order to create a sepa
The position of the Court, however, seems to be based upon this view, that because the settlement is to the joint use of husband and wife, therefore no separate estate could be created in the property. In the language of the authority cited from 2 Porter, “ the wife must have the exclusive property in the gift, without which Courts of Equity wil¡ not suffer the legal rights of the husband to be superseded.” If by the phrase “ exclusive property,” it is intended to assert that the wjfe may not enjoy a “separate estate” jointly with the husband, then it is very manifest that the error of the position originates in the confounding of the two terms “separate estate” and “estate in severalty.” These several terms have each a precise technical mean* ing, and the existence of the latter is by no means dependant upon the former. By the term “ separate estate ” I understand to be meant, such an estate as may be enjoyed by the wife, exempted from the marital or common law rights of the husband, and that such enjoyment by the wife may be either in severalty or joint-tenancy. Indeed, the books of reports are full of such cases. The authority of 2 Porter, cited to this point in the opinion delivered by the Court, I have examined and find it to be a case in which the deed, under which the wife claimed, conveyed a strictly legal title, and consequently it can have no bearing on the case under consideration. A “ separate estate ” is exclusively the creature of equity, and when the deed conveys the legal title to the wife, eo insianti, the property, if it be personalty, becomes according to the rules of the common law, the property of the husband. In the case cited, the
The question raised in the case cited from 9 Simons was simply, whether the words of the deed created a separate estate for the wife, and is as dissimilar in the facts as it is inapplicable to the law of this case.
I have been equally unfortunate with the Court, in not having been able to procure access to the two cases cited to the same point from 12 and 21 Alabama R. and also 4 Ired.; but I will venture the assertion, that although in those cases the property may have been settled to the joint use of the husband and wife, yet upon examination it will be found that there were no words in the deed expressly excluding the marital or common law rights of the husband, or from which such intention could be reasonably implied.
I am forced then to the conclusion, with all proper deference to the opinions of my respected associates, that the deed of settlement executed by the defendant, Harrison, in contemplation of his marriage with the complainant, Mary E. Harrison, did create in her a separate estate, to be enjoyed by her jointly with her husband, free from the operation of his marital or common law rights.
The position is assumed by the Court,' secondly, that the
It is a misapprehension on the part of the Court to suppose that there has been any denial of the position, that Harrison has an assignable interest in the property. It is admitted that he has, but the question is as to the quality ‘and extent of that interest. Without intending to admit •the applicability of the authorities cited to this point, I ;readily accord to the husband the right to receive the issues and profits of an estate settled as this is ; and I moreover .yield to him the right to dispose of them (i. e. the issues and profits) provided such disposition do not defeat or impair the object and design of the settlement; but I do contest his right to alienate the corpus of the estate. His interest in the property is only a joint use, and he may not assign a larger estate than he has under the deed of settlement; the entire corpus of the estate must remain intact, (vide Blake vs. Irwin, 5 Geo. R. 345; Cadogan vs. Kennett, Cowper’s R. 432). In this latter case the Court remark: “ If ‘Lord Montford had let his house with the furniture, or if
I have not had access to the cases cited in the opinion from 3 and 12 Simons, but have examined those cited from 4 Dess., and 1 Speer, and I find that they both fully sustain the view that I have taken of this question.
The case of James vs. Marant, 4 Dess. R., 591, was upon a bill filed by a creditor, to subject the “profits and proceeds” of trust property, settled to the separate use of the wife, to the payment of a debt incurred for the benefit of the estate. There was no attempt to reach the corpus of the estate, the prayer of the bill asking only to subject the “profits andproceeds,” and the decree of the Court was according to the prayer, “that the trustee do account with the complainant, before the commissioner for the annual income of the trust estate, until the debt be paid.” In the quotation from the opinion delivered in that case, and cited by this Court, it is said “ under such a settlement the creditors of the husband, would not be allowed to deprive the. wife of her maintainance,” and if not, I may ask upon, what ground will it be permitted to a party, with full notice and without a valuable consideration, to take to himself the corpus of the estate, out of which that maintainance is to accrue l
The case of Napier vs. Wightman, (1 Speer Eq. R., 357,), also cited in the opinion of the majority, '-is a very strong authority in support of my views on this point. In that cake, it was determined that the deed was not a marriage-settlement, and. farther, that there was no separate estate,,
A third and the main position assumed in this opinion is, that the trust becoming executed in the husband, by the delivery of the possession, he thereby acquired the legal estate, and consequently the right to convey it.
There is doubtless much refined learning upon this very subtle subject of executory and executed trusts, and with the principles of the decided cases for our only guide, it not unfrequently becomes somewhat difficult to determine when a trust has been executed, or is only executory. But how-: ever true this may be in respect to ordinary trusts, I will venture the assertion, that in regard to trusts arising under marriage settlements, where a separate estate is created for the benefit of the wife, (whether that estate is to be enjoyed by her in severally, or as a joint usee with her husband,) the doctrine that the delivery of the possession operates as an execution of the trust does not obtain.
As applicable to the facts of this case, it may be further observed, that the refinements and complications attending conveyances, or devises to uses, are confined to assurances of real estates, and are seldom encountered where the subject of the settlement'is of personalty. (Vide Watson vs.
In the case of Harton vs. Harton, 7 T. R., 652, which was a settlement in trust for a feme covert, to permit her to receive the rents for her separate use, Lord Kenyon held that in.order to effectuate the testator’s intention, the legal estate must be declared to reside in the trustees ; otherwise, if the trusts were held to have been executed in her, the husband would be entitled to receive the profits, and so defeat the object of the devisor.
As specially applicable to the point now under review, I refer to the case of Blake vs. Irwin, 3 Georgia R., 345, the facts of which are made to coincide with those.'of this ease, in a most remarkable degree. That case, like this, arose out of a marriage settlement—the property was vested in trustees, to be held in trust for the use of the husband during his life. He was to have the entire possession, and to exercise reasonable ownership over the property, and to alter and change the same, by and with the consent of the trustees, provided it was for the benefit of the trust estate. If the wife survived the husband, then she was to have the entire use during her natural life, with the power of disposing of one half thereof bjr will, and in the event, of offspring between them, the whole estate to vest in the child or children, the trustees to have a right at any time with the consent of both husband and wife, to re-settle the
In the case under consideration, the property was settled in the first place (immediately after the consummation of the marriage) to the joint use of Harrison and wife for life; in the case cited, it was so settled to the separate use of the husband. The corpus of the estate was levied upon under common law process, for the husband’s debts, and after the most searching and elaborate argument of able counsel on both sides, it was held that “the legal title remained in the trustees, and that the equitable interest of the husband in the property was not liable to be seized and sold by, the Sheriff, under an execution at law, but that the proper remedy for the creditors was in a Court of Equity.” The position assumed by my respected associates was critically examined by both the Counsel and Court, and indeed was the only one upon which the plaintiff in execution relied. Judge Lumpkin, in a very able opinion delivered in the case, has set forth the true doctrine in so clear a light, that X need do no more than quote his language. “In behalf of the. creditors,” says he, “it is insisted that even if the statute of uses and the 10th section of the statute of frauds, did not apply to personalty, that still the very deed itself conveys the possession to the use, and transfers the use into, possession, thereby making Blake the complete owner of the property, as well in law as in equity. It is true that the entire use is given to him, but it is the use only and not the corpus. It is also true that he is entitled to the possession, but that possession is evidently not an inherent right Ipy virtue of the estate which he held, but bestowed upon him as the agent rather of the trustees.” Again, he re
His Honor goes on further to remark, “ marriage settlements have the sanction of immemorial usage and of the most enlightened part of the human race ; and this Court would be recreant to its duty, to permit the rules of law to be strained to defeat the end to which this contract was intended, It is true that the use of this property is given to the husband for life, but then he cannot alien without the consent of the trustees, and for the advantage of the trust estate. While this is the case he cannot deprive thó wife of a maintenance, even if he derived it out of this property. Her interests, therefore, are essentially protect5ed by this deed, independently of the power reserved of resettling the estate. To allow it then to be sold at law> to pay the husband’s debts, would be to defeat the very end for which the trust was created.”
This doctrine of executed trusts was again brought under review in the same Court, in the case of Wynn vs. Lee, 5 Geo. R. 217, and the case of Blake vs. Irwin was referred to and approved. Nisbet J. in delivering the opinion of the Court remarks: “The defendant in the Court below insisted that Mrs. McMillan, the cestui que trust, having possession of this slave from her trustee, Lee, the deed of trust was executed, and that he as trustee, could not maintain trover for him. The Circuit Judge disaffirmed this doctrine, and so do we. The legal estate was in the trustee:. of that, he had never been divested. The trust was not alone for Mrs. McMillan; it was also for her children. It was not a trust consummated when the slave was delivered in her possession. She would not, by a sale, defeat the limitation over to the children. The trustee held the legal title for the purposes of the trust, and was entitled to the possession as against strangers to the deed, at law, as against Mrs. McMillan herself. We think the Court was right in sustaining the action.” (Citing Lewin on Trusts, 247 and 481; Willis on Trustees, 72, 73, 77, 84, 109, 482 : Blake vs. Irwin, 3 Geo. R. 345; Hill on Trustees, 274; Goodtitle vs. Jones, 7 T. R. 47., 4 Barn & Ald. 745, and Jones vs. Jones, 3 Bro. C. C. 80.)
Butlneed invoke no stronger authority to sustainmy position, than the cases from South Carolina, cited to this pointin' the opinion of the majority. The views expressed by Judge*
After proceeding to enforce this position in an elaborate argument and by the citation of numerous authorities, he closes by remarking in reference to the cases which had been just decided. “ So much for the principle which I suppose these cases are to overturn. In the cases themselves according to the principles which I have maintained, there is no difficulty. In both the trust is partially for a married woman, incapable of acting sui juris, something still remains to be done by the trustee, showing that the possession is not absolutely in the husband. Both aré antenuptial settlements. In the first ease, the property may be sold by the trustee and the cestui que trusts, and the proceeds invested in other property. This shows that the
It is very evident from the tenor of these remarks that his honor did not intend to be understood as sanctioning the doctrine, to the extent to which it has been 'carried by the majority of the Court, in this case, if indeed, he did not expressly repudiate such an application of it. But however, that may be, it is quite certain that this doctrine, as thought to be announced in Ford vs. Caldwell, was expressly overruled, in the two cases of Rice vs. Burnett (1 Speers Eq. R. 579) and Joor vs. Hodges (Ib. 593.)
Chancellor Dunkin in a very elaborate and well considered opinion, delivered in the former case, reviewed the whole doctrine of executed trusts, and expressly repudiated the principles assumed in the case, ofFord vs. Caldwell, as Ahe ground of the judgment rendered therein. He remarks: “So in Ford Trustee. vs. Caldwell, the deed was -a gross fraud upon creditors and void by the common law,
It will thus be seen that the principle, as thought to be announced in Ford vs. Caldwell, which is chiefly relied on-, by this Court, as the ground of their judgment in this case, if not repudiated by Judge O’Neall (and I think it is) has. been emphatically rejected by the subsequent decisions, of ■ the same Court. And I may add that all of the foregoing re-. marks, of the learned Chancellor, with respect to creditors, will apply with ten-fold force to a mere volunteer pur
I have also the authority of Chancellor Harper to support my position. It is true that when the case of Joor vs. Hodges came before him at chambers, he decided it in accordance with the doctrine contended for by this Court, but in doing so he showed his disapprobation of the doctrine in a most marked and emphatic manner, and took occasion to declare that he made the decission under the pressure of the decided cases, and it was at his instance that the point was carried before the appellate tribunal for review. After commenting upon the several cases which had been previously decided by the Court of Appeals of South Carolina, (Ford vs. Caldwell amongst the rest) in which it was supposed that the doctrine had been sanctioned, he very- significantly. remarks : “ If indeed when p roperty is conveyed in trust, for the joint use of husband and wife for life, the use is to be executed in the husband, so as to render it liable at law to his creditors.” I do not perceive what purpose is answered, by having a trustee to a marriage settlement.” He then closes his opinion with the following observations: “ But still if the execution of the trust depends on the right of possession, and the actúa,! possession, I must, according to the cases decided, declare it to be so executed in this instance, so as to render it liable to creditors at law. It is said in Pyron vs. Mood, that in Equity, if the purchasers had notice of the trusts, the rights of the wife might possibly be protected. But if the property be liable at law, I know of no ground on which equity could interfere. I am bound to follow the law. I am not well satisfied, with my conclusion, and wish
I have been unable to discover the relevancy of the several citations from Kent, Blacksfcone, Le win on Trusts, and others, in reference to “conditional estates” and “perpetuities,” and therefore do not appreciate their force as applied to the facts of this case. If it were intended by these citations to intimate that the estate created by the deed of settlement in this case, contains any one element of either a “conditional estate ” or a “perpetuity,” I can only observe that, in my opinion, it is clearly a misapprehension of the purport, design and legal effect of the deed.
The next position'assumed in the opinion of the.Court is, that this suit is to be regarded as instituted by Harrison (the husband) for his own benefit. By what process the Court have arrived at this conclusion, I am unable to perceive. Harrison is a defendant in the bill and not a complainant. No answer has been filed that I am aware of, but the case comes before us simply upon general demurrer, and we are therefore bound to take the facts to be as they are stated in the bill. Besides, if it be permitted to the Court to advert to presumptions, it seems to me that the legal presumption would be, that it was his interest to protect his own conveyance.”
In order that I may not misrepresent the views of the Court as set forth upon another distinct branch of the case, I will quote the language of the opinion in reference to that point: “ The decree,” say the Court, “ in favor of Sander-son against Harrison, is conclusive as far us hispossession of the property, his interest in it, and his power of alienation are concerned. It was the decision of a Court of compe
It must be recollected that neither Mrs. Harrison or any other of the complainants in this case, were parties to the suit, in which that decree was rendered ; and it certainly will not be required of me to invoke the aid of authority to show that no person can ever be concluded by a decree, unless he were a party thereto, or a privy in estate. Such evidently is not the position of Mrs. Harrison or any of these complainants, and I am therefore utterly at a loss to perceive the principles of law or equity upon which the position of the Court is based.
But the limitation or qualification contained in the propsition, is of itself fatal to the principle assumed. If the decree be conclusive against Mrs. Harrison as a complainant in this suit, so as to deprive her of the corpus of her estate; to what greater extent, I would respectfully inquire, can it ever be made to affect her interest in this pi'operty 1 The qualification then, to my mind, is wholly nugatory for any practical purpose—it is “■ making the promise to the ear and breaking it to the hope.”
Another position taken in the opinion of the majority is, that the conveyance of the property by Harrison to his daughter, Mrs. Sanderson, did not conflict with the main design of the marriage settlement, inasmuch as .the children of the marriage were expressly provided for by the-deed; and .that such assignment was merely an anticipa-*
There are two questions in regard to Mrs. Harrison’s, possible interest in the property in controversy, which the Court, in the opinion delivered, expressly reserve as open questions, and desire to be understood as not concluded by their decision, viz ; First, “ whether, if Robert Harrison by any casualty, should become unable to support his wife, she might not have a right to call upon Sanderson to contribute to the extent of his interest.” And secondly, “her right (in the property) in the event of his (Harrison’s) death, and she surviving him ?”
The very expression of a doubt upon either of these points is an entire surrender of the whole argument in regard to the position assumed in the opinion, viz: that the trust in this property had become executed in Harrison by the de*
Now if it be true that Harrison thus acquired an absolute title to the property, with the consequent right of alienation, what question can arise as to the extent of Sander-son’s interest in the property conveyed? If Harrison acquired an absolute estate by the execution of the trust, Sanderson also acquired an absolute estate by the execution of the conveyance to StaiTatt. The doubts expressed by the Court would lead legitimately to the inference, that they view Sanderson as standing in the relation of a trustee to this property, and as holding it coupled with the trusts of the original marriage settlement. Such a view of the matter, I again repeat, is a virtual surrender of the position assumed by the Court, based upon the doctrine of “ executed trusts.” But be that as it may, the doubts themselves
I now pass to that portion of the opinion which treats of the rights and interests of the remainder men. It is admitted by the Court that if they have the interest in the property, for which they contend, they are entitled to file a bill quia timet, for its protection. The bill, nevertheless, was dismissed without considering their interests. Whether
If however, the dismissal of the bill, so far as the remaindermen are concerned, proceeded upon the assumption, that there was not sufficient in it to constitute it a bill quia timet, or upon the objection taken at the argument of the case, viz: that it was a compound bill of review, and quia timet, I am of opinion that either position is unmaintainable,
Without intending to indulge in a critical disquisition upon the necessary qualities of a bill quia timet, I apprehend that it will be found upon examination, that this bill contains all the allegations, charges and prayers, essential to constitute it a bill of that character. The objection that it is a compound bill, will not hold good. In the case of Whiting vs. the Bank of the United States, (13 Peters S. C. R., 6,) the Supreme Court of the United. States say: “The present bill seeks to revive the suit, by introducing the heirs of Whiting before the Court, and so far it has the character of a bill of Revisor. It -seeks also to
Having thus disposed of the several positions contained in the opinion delivered on the part of the majority, T will now proceed very briefly to state my views in regard to the merits of the case.
By reference to the deed of settlement, it will be seen, that it conveyed property, consisting principally of slaves, to trustees; the legal estate to be held by them upon divers trusts: first, for the use, benefit and behoof of the husband, until the solemnization of the intended marriage and after consummation of that event, to the use and behoof of the husband and wife, during the period of their natural lives, (“without any manner of waste, or impeachment of waste,”) and with remainder over to the issue of the marriage.
Secondly. In case there should be no issue of the marriage, then the estate to go absolutely to the survivor. There is also in the deed, a special stipulation, “ that the property conveyed, is not to be liable for the payment of any debt,, judgment, execution, account, demand or otherwise of the-husband,” and that stipulation is coupled with a proviso, that the husband and wife, “ with the approbation and assent of the trustees, may at any time, by writing or writings, under their respective hands, and attested by two pr more credible witnesses, revoke and make void, alter
It is also' proper to remark, that there are three distinct classes of property mentioned in the bill, to which the complainants sét up title.
1st. The particular slaves named or referred to in the deed of settlement.
2nd.- The natural issue and increase of those particular slaves.; and
3d. Such slaves as are therein alleged to have been purchased by the husband, out of the profits and proceeds of the trust estate, together with the natural issue and increase of the same.
With respect to the first class, it will be readily perceived from the general views which I have hereinbefore expressed in regard to the main position assumed by the Court, as the ground of their judgment, that I do not recognize any right in Harrison, the husband, to alienate any portion of the corpus of the estate. In arriving at this conclusion, however, I am not at all influenced by that argument of the counsel for the complainants, .wherein he invoked the analogy of the law, relating to the real estate held in joint tenancy by husband and wife. In such case, the estate is even more than an ordinary joint-tenancy— it is an estate held by enlirteies; and the husband may not alienate even a moiety, or any portion thereof, without the concurrence of the Wife. 2 Black. Com., 182.
There may exist a joint tenancy in things personal, and when so held, the estate is subject to all the rules governing real property. (2 Black. Com., 399.) But this must be taken to be so, only as between strangers, for a joint
And again, at page 349, that “if goods are given to the husband and ..wife, the wife shall not have them by survivorship, but the executor of the husband.” Tide 3 Bac. Abr., ( Bird Wilson’s Ed.,) 647.
It will thus be perceived, that no argument can be based upon any analogy supposed to -exist between the t wo kinds of property. I desire to place the rights of the wife upon safer and higher grounds, viz: that of an express trust.— Under the provisions of the settlement, the husband was entitled only to the joint use, with his wife, in the property conveyed, and that too to be enjoyed only during the term of his natural life. The legal estate was not in either of them,—it resided in the trustee.
With respect to the second class of property specified in the bill, viz : the natural issue and increase of the females slaves, I can perceive no sound principle of law, upon which they can be made to take a direction different from that given to the first class. If we resort to adjudications upon this subject, it will be found that in the Southern States of
But I have a surer guide to my conclusion, in the intention of the parties who executed that settlement. The object and design evidently was, while careful to secure to the wife a comfortable maintainance for herself and family during the term of her natural life, to make a competent and substantial provision for the issue of the marriage. If I am corret in this interpretation of the intention of the parties to the deed, then it is very evident that the object contemplated, could be secured only by causing the issue of the female slaves to follow the condition of the mothers.
If, as was insisted in argument, the trusts are to be restricted exclusively to the slaves mentioned in the deed, it is very evident that in view of the casualties of human life, and the certain and irresistable encroachments of age, the provision for maintenance and support would stand upon a very narrow and unstablé basis, and the expectations of the issue of the marriage as remainder-men, would be doomed to certain disappointment.
But we need not resort to implication, in order to ascertain the intention of the parties—the deed itself speaks a language which is not to be misunderstood. In the conveyance to the trustees, it expressly and in terms conveys “the issue and increase of the females.” I presume that this particular language of the deed escaped the observation of the very vigilent and astute 'Counsel who argued the case for the appellant, or he would not have sought, as
With respect to the third class, viz: that portion of the slaves including their natural increase, which is represented in the bill, as having been purchased by Harrison, with the “profits and proceeds” of the trust estate, I have felt greater difficulty in arriving at a satisfactory conclusion. It is undoubtedly correct as a general principle, that where trust money or the proceeds of a trust estate, is invested in the purchase of property, or in any other manner, the particular investment, or the property so purchased,- will be deemed in equity to enure to the benefit of the original trust. This however is but the enunciation of a general principle, and like all general principles, when it does not contravene the policy of the law, must yield to the clearly ascertained intention of the parties, whether that intention be manifested by the express stipulations of the deed, or can be reasonably implied from the object and design of the settlement. To my mind, whether we resort to the one course or the other as an index to the intention of the parties, it is very apparent that it .was never the disign of the settlement, to restrict or limit the power and control of the husband, with “ respect to the proceeds and profits” of the trust property, any further than might be necessary to effect theprimary object of the trust, viz : to secure to the wife a comfortable and adequate support and maintenance for herself and family, during the term of her natural life. So long as the corpus of the estate was kept intact, I think that the husband had a right to appropriate and dispose of the surplus of the proceeds and profits, as he might deem best, and according to his own will and
There is moreover to be found in the deed of settlement a very peculiar and unusual clause, which would seem to favor the view which I have taken of this branch of the case. I allude to the clause which expressly stipulates that the joint use of the [estate is to be enjoyed by the husband and wife, during the term of their naturel lives, “without any manner of waste or impeachment of waste, to be had, done, made or committed.” This stipulation, in the connection in which it is found, is manifestly inapplicable, and if subjected to a rigid construction, would become wholly nugatory. But being inserted in the deed, it was evidently intended to convey some meaning, and it is our duty, looking to the intention of the parties, to give it such an interpretation as may render it most consistent with the context.
“Waste and impeachment of waste” are technical terms, and are found only in conveyances of real estate,—they are entirelyinapplicabletoy>3?'so?iaZiy. “Waste or vastum.” “It (says Blackstone) is a spoil or destruction of houses, gardens, trees or other corporeal heriditaments, to the disherison of him that has the remainder or reversion in fee-simple or fee-tail.” (2 Black. Com. 281.)
Impeachment of waste signifies a restraint from committing waste upon lands or tenements, or a demand or compensation for waste done by a tenant, who has but a particular estate in the lands granted, and therefore no
Proceeding to give an interpretation to this clause of the' deed, so as to save it from being rendered wholly nugatory, and to make it consistent with the context, I am clearly of opinion that it is susceptible of but one meaning, viz : that the tenants of the particular estate should be permitted to enjoy the joint use of the same, “ without account,” either as between themselves or as between them and the remainder-men. If I am correct in this construction, then it results as a necessary consequence, that Harrison, the husband and one of the tenants of the particular estate, had the right to appropriate to himself such portion of the- “ proceeds and profits” of the trust property as might remain after providing out of it an adequate support for the-wife and family. If he appropriated this surplus to the’ purchase of property for himself, as I think he might well' have done, then he had an unquestionable right to alienate it, and the conveyance to Starratt, in trust for his daughter, the late Mrs. Sanderson, ought to be sustained to that extent as good and valid.
If the demurrer had been restricted to this portion of the bill, I should have concurred with the majority of the Court in sustaining it; but being general to the entire bill, I am constrained from the views which I entertain in regard to the whole case, to dissent from the judgment of the Court upon the well recognized principle of equity practice, that-
I should have been gratified to have had the opportunity to give my views in regard to the very many interesting questions; so ably argued by counsel on either side, but the length of this opinion admonishes me of the propriety of now bringing it to a close.
If I have exceeded the limits usually assigned to a dissenting opinion, I claim an apology in the paramount importance of the questions involved, and in the firm conviction (with all deference for the views of my respected associates) that the doctrines announced in the opinion of the Court are not only unsustained by authority, but are in direct conflict with the best interests of society, and take away the only shield which an affectionate and provident parent is allowed to interpose for the protection of his confiding and often unfortunate daughter, and her innocent and helpless progeny.