61 Pa. 320 | Pa. | 1869
The opinion of the court was delivered, May 11th 1869, by
Two questions are presented for our decision— one as to the power of Mrs. Ann Atherton to convey her separate estate, and the other as to the validity of the curative Act of 1863. The parties having united in treating the estate of Mrs. Atherton under the will of Jacob Gould as a fee simple, it is unnecessary to examine the will in this respect. The effect of the devise was to vést the estate for her sole and separate use, freed from the debts of her husband, and without power to convey during coverture. The will took effect after the passage of the Married Woman’s Act of 1848, and it is thought this enabled her to convey, there being no trustee named in the will. But the want of a trustee does not change the nature of the trust, which is upheld in equity as well without as with a trustee : McKennan v. Phillips, 6 Wharton 571, and authorities cited on p. 575; Jamison v. Brady, 6 S. & R. 466; Cochran v. O’Hern, 4 W. & S. 95; Heath v. Knapp, 4 Barr 228; Wright v. Brown, 8 Wright 238. That the Act of 1848 produced a radical change in the condition of a married woman is undoubted as to the title to her estate. This had relation to her right of property, not to the powers she can exercise over it. At common law the husband was the absolute owner of her chattels and the profits of her real estate, and might by reduction to possession become owner of her choses in action. The Act of 1848 changed this rule and vested the title entirely in the wife. It was this title which the husband sought to control in Cummings’s Appeal, 1 Jones 272, where Judge Rogers used the language often criticised, that a married woman must hereafter be consi
The second question cannot avail the plaintiff in error. Mrs. Atherton held the estate subject to the restriction imposed by the donor, having no right and no power to sell it, and in this condition died, her husband surviving her. By the terms and effect of the testator’s will the property passed to her heirs. The estate became vested absolutely in them, and their title was both legal and equitable. It did not descend to them charged with a trust or a moral obligation imposed upon them to confirm the deed to Mr. Dorrance. In this condition the Act of 22d April 1863, found the estate. It undertook to make the deed of a married woman (who had no trustee) of like force and effect as if a power of sale had been contained in the instrument creating
We see no error in the record, and the judgment is therefore affirmed.