Thomas v. Folwell, 2 Whart. 11

Thomas v. Folwell

2 Whart. 11 | Pa. | 1836

The opinion of the Court was delivered by

Gibson, C. J.

We adhere to Lancaster v. Dolan, as an authority *16unopposed by any other to which we are bound to submit, and as a decision founded in convenience and reason. Either the judgment in that case was right, or the common law7 which suspends a wife’s power over her legal estate, is wfong. Her disability under either, is designed to protect her against the husband’s power—in the case of a settlement the mischief avowedly deprecated; yet the object is necessarily jeoparded in proportion to the extent of her own power. Why is a settlement ever made ? Certainly to exclude the husband’s control. But to exclude his direct control, which consists in an exercise of legal power, and yet leave him the means of giving effect to an indirect control; which consists in an exercise of personal influence, is to do nothing. We daily see the incompatibility of the wife’s protection with the qualified power of alienation, given her by our statutes ; and the English Chancery Reports show-that the same mischief has ensued from the license allowed her under deeds of settlement, by reason of which, what would otherwise have kept the wolf from the door, has been wasted or pirated by the husband. The modern doctrine of courts of equity, is founded on what appears to be a misconception of the leading purpose of a settlement, which is obviously to disable the husband, and not to enable the wife, at least further than may be consistent w7ith the security of her title, of which the grantor ought in the particular case to be the judge. The object is not so much to give her -the dominion of a feme sole, which every man of experience knows would in a^ countless number of instances defeat the principal intent, as to'withdraw the estate from the dominion of the husband ,• and we might expect it to occur to those who are called to the interpretation of these instruments, that the surest way to accomplish this, would be to restrain the power of both. The donor has doubtless capacity to remove, by the instrumentality of a trust, the disability annexed to coverture by the common law, so far even as to give the wife the power of a feme sole; and there may be exam- ' pies of feminine firmness, that would render it safe in particular instances to do so; but it would expose a woman of ordinary resolution to perils from which she would be protected, by the common law, the practical wisdom of whose maxims, matured as they are by the experience of a" thousand years, no thorough-bred lawyer will hesitate to admit. We therefore hold it to be the settled law of Pennsylvania, that instead of having every power from which she is not negatively debarred in the-conveyance, she shall be deemed to have none but what is positively given or reserved to her. By the trust in the present instance, the feme had but a power to .receive the' profits, or appoint an agent to do so; and as the freehold did not pass by her appointment in the nature of á will, it descended to her surviving issue.

Judgment for the plaintiff.