8 Fla. 107 | Fla. | 1858
Lead Opinion
delivered the opinion of the Court.
This is a claim on the part of Mrs. Caroline Mattair to a negro boy, Primus, levied upon to pay her husband’s debts, under the execution of the plaintiff, Tison. Her title is asserted through a deed of gift from her father, Henry Jones, “ to his youngest daughter, for and in consideration of natural love and affection, to her and the heirs of h&r body — the said Caroline Mattair and her immediate offspring to have and to hold the above described property to their own proper use and behoof forever.” From the proof in the case the property came to the possession of her husband, Henry Mattair, immediately after the marriage, about the year 1840, and has so continued ever since. Whether it shall be regarded as the possession of the wife, will depend upon the words and language
“ The words, to and for her usef “ in a gift to a feme have been adjudicated insufficient to create a separate estate — so determined by the master of the Rolls, and his decision afterwards affirmed by the Chancellor.” Jacobs v. Amyatt, 1 Mad. 376.
In Johns v. Lockheart, it was held “that a legacy to a feme covert to her own use and benefit,” is not to her separate use — (note to 3 Brown’s Chy. Rep. p. 318.)
In five subsequent cases in'the English Courts, the same doctrine has been held. Wills v. Sayer, 4 Mad. 409; Rob.erts v. Spicer, 5 Mad. 491. In the case of Kensington v. Holland, it is said “ a gift to a wife £ for her own use and benefit’ does not clearly express such intention, nor to a husband for a wife’s own use and benefit.” 2 Myl. & Keen, 184.
In Tilor v. Lake, the words “ to be paid £ into her own proper hands for her own use and benefit,’ were held insufficient.” 4 Simons, 144. So as also “ the words £ to her own proper use and benefit,’ were held insufficient.” 2 Hare, 49.
It is not pretended that the word “ behoof” in this deed adds any thing to the other words. It seems to be equivalent to “ benefit” in the cases cited.
In Alabama, it has been held that the “ words ‘ to the use and behoof oí the wife’ and £ to have the use and benefit of the labor and services of the said slaves and all the proceeds thereof during her life,’ do not create a separate estate.” Scott v. Abercrombie, 14 Ala. 270 — 803.
Abundant other cases to the same effect will be found in the American Courts, but it is unnecessary to extend them.
It is said that the authorities “ afford but an uncertain”
How the inference is attained that there is an uncertain light on this subject, it is difficult to understand. The eight cases referred to above are directly in point, and have not been overruled. If they are, it has not been shown to the court, nor have we been able to find any such in our extended examination and reseai'ch. So far fi’om it, the text books in England speak of the law as settled, thus — ■ “ expressions which have been held insufficient to raise a trust for the wife’s separate estate are ‘ to be paid to her and for her use,’ ‘to her own use and benefit.’ ” 2 Roper, Husband and Wife, 164.
“ However the intention to create a sepaz’ate estate must be clearly and unequivocally expressed in order to depzdve the husband of his marital lights. Thus it has been held that a simple trust ‘for her own use and benefit’ will not Create a trust for her separate use,” quoting Wills v. Sayers, Roberts v. Spicer, Kensington v. Holland, Byles v. Spencer, &c., Hill on Trustees, 420.
“ Legacies to married women ‘ for their own use and benefit,’ have been held not to be sepaz'ate property.” 2 Bright, Hus. and wife, 208; so also Clancey, 267.
In justice Story’s great work on Equity Jurispz'udence, we find language to this effect: “Under what circumstances property given, secuz’ed, or bequeathed to the wife shall be deemed a ti’ust for her separate and exclusive use, is a matter which, upon the authorities, involve some nice distinctions.” After enumerating on the one hand the words and language that will exclude the marital rights and create a separate estate, he says, “ on the other hand, a gift or bequest after marriage to a married woman, ‘ for
Chancellor Kent, in his Commentaries, makes no objection to-the rules thus laid down, although he is vehement on the subject of the right of disposition of the feme in her separate estate, evidently preferring his own views to those of the court of New York in the case of Jacques v. The Methodist Ep. Church, 17 John. Rep. 548, in which he was overruled.
In a recent American work of merit, the general rule of the English Courts on the subject is given without dissent, and with a distinct reference to the cases quoted above of Tilor v. Lake, &c. 4 Bouvier Institutes, 274.
So that in reference to the words of this instrument, there is not only no uncertain light, but a remarkable clearness and certainty. So far from .uncertainty, there is entire unanimity, full harmony and accord of opinion. And when it is remembered that these decisions were given by the Court of Chancery in England in its highest estate, composed of the first intellects, men renowned for their integrity, to which is to be added the concurrence of our own judges, jurists and lawyers of highest intelligence, standing and character, there will be found no little hazard in the assertion that there is uncertainty. If eight decisions on the very question, without a single one overrulling or in opposition, with the fall concurrence of the American Courts and elementary writers, both in this country and England, will not settle a point, will produce uncertainty, what is to be regarded as adequate to effect certainty and to remove doubts ?
This uncertainty, it is said, makes it necessary to resort to elementary principles, and that these give a separate estate to the wife. They will be found to be to this effect: “ By marriage the husband and wife are as one person in
“ It is well known that tbe strict rules of tbe old common law would not permit tbe wife to take or enjoy any real or personal estate, separate from or independent from her husband.” 2 Story’s Eq. 606.
Such were tbe elementary principles governing this relation and tbe property belonging to or conveyed to the wife, when tbe Courts of Equity in tbe beginning of tbe last century recognized a separate interest and estate in her. They did it with a declaration, and using language of this character — “ Courts of Equity will not deprive the husband of bis wife’s property, té wbicb be is by law entitled, unless tbe intention be clear that be is not to derive any benefit from it, and that it shall be for tbe personal use and disposition of the wife.” 2 Bright, Husband aud wife? 206.
“Sucha claim on the part of a married woman being against common right, the instrument under which it is-made must clearly speak the donor’s intention to bar the husband, else it cannot be allowed. It will appear from the cases that the strongest evidence of intended generosity and of bounty towards the wife will not be sufficient to-give her a separate estate, unless in addition language be used by the donor clearly expressing the exclusion of the husband, or else directions be given with respect to the enjoyment of the gift wholly incompatible with any dominion of the husband.” Clancey, 262.
“ The intention to create a separate estate must be clearly and unequivocally expressed, in order to deprive the husband of his marital rights; And in modern times, judges have required much more stringent expressions for this purpose, than were once considered sufficient.” Hill on Trustees, 420.
The decisions in South Carolina are accordant with these views. “ The bequest is to her. This gives an absolute estate in personal property, and she would have the absolute right to dispose of it during her life, or at her death,. unless she were a married woman and and thus disqualiby law from exercising acts of ownership over it, in which" case her being and her rights are blended with her husband’s. The addition of the words (at her disposal at her death,) do not of themselves add to or enlarge her interest in or power over the property previously bequeathed to her. If it had been intended to give her a sole and separate estate, free from the control of her husband, not subject to-his debts, and subject to her disposition by deed or will, it-would have been easy to have made such provision, and.
The elementary principles appealed to, plainly and manifestly in this case give the property to the husband; for if the intent be not plain, explicit and unequivocal, if there be “ an uncertain light ” as to the meaning of the words and language of the instrument, then, by the elementary principles prevailing, as well at law as in equity, the, separate estate is not created, but the property is subject to the marital rights.
Again, it is urged that “ intention, relation of the parties and the context, exercise an important relation,” and it is argued that the fact of “ this lady’s being a married woman when the gift was made, is a circumstance from which the intent should be inferred.” The opposite of this is clearly shown by the authorities already adduced, but more clearly in the decision made at a very early period, in which “ H. B. bequeathed £100 to the plaintiff’s wife, to be paid within six months after the testator’s death, and a bill being filed by the husband for this legacy against the executor, his defence was that he had paid the wife and had her receipt for the money, and it was argued for the defendant the executor, that it must have been the intention of the testator to have bequeathed this sum for the separate
If our own opinions were less fixed on the subject, we should feel great reluctance in disturbing a rule of property prevailing so long and with such universal acceptance and approval. It is nearly a century since the first decision was made. Since then there is not one, but “ many decisions,” “ successive determinations,” a “long series of authority ” “ and a train of decisions,” all according, none opposing — not a dissent — so that there is no longer pretext for calling the principle ip question. “ lies adgudieata stare deeisis, is a first principle in the administration of justice — it is one of the most sacred in law.” “ Whatever the private opinion of a judge may be, it is safer to conform to established decisions, particularly in the House of Lords, but if not, the errors of great judges^ acquiesced in for a series of years, ought to be adhered to. If mischief appear, the Legislature may interfere, but it is too much for the Courts. Upon the faith of an established rule and the acquiescence of judges and of the whole nation in it, property to the amount of millions may depend.” — Earn on Legal Judgments, 26-27.
“Every innovation occasions more harm and derangement of order, by its very novelty, than benefit by its actual utility. It is an established rule to abide by former precedents, stcore decisis, where the same points come again in litigation, as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion, as also because the law in that case being solemnly (declared and determined, what before was un
“■ "Where a rule has become settled law, it is to be followed, although some possible inconvenience may grow from a strict observance of it, or although a satisfactory reason for it is wanted, or the principle and policy of the rule may be questioned. If there is a general hardship affecting a general class of cases, it is a consideration for the Legislature, not for a Oou/rt of Justice. If there is a particular hardship from the particular circumstances of the case, nothing can be more dangerous or mischievous than upon those particular circumstances to deviate from a general rule of law, for misera est servitus ubi jus est vagum aut incertmnP
“ Obedience to law becomes a hardship when the law is unsettled or doubtful, which maxim applies with peculiar force to questions respecting real property, as family settlements, &c., and if in consequence of new lights occurring to pew judges, all that which was supposed to be law by the wisdom of our ancestors were to be swept away at the time particular limitations are to take effect, mischievous would be the consequences to the public.” — Winehous vs. Rennol, 8 Bing., 557 ; 2 Vesey, Jr., 426-’7; Clark vs. Ludlum, 2 Bing, 180; 8th T. R., 501; Broom’s Legal Maxims, 61.
“ The doctrine of the law then, is this : that precedent’s and rules must b.e foilowed qnless flatly absured or unjust ; for though their reason be not obvious at first view,
The American Courts are by no means in conflict with the English on this subject.
“When a rule of property has been settled by judicial decisions, and may reasonably be supposed to have entered into the business transactions of the country, it is the duty of the Courts to adhere to it and leave the corrective to the Legislature.” Macvay v. Ijams, 27 Ala., 238.
“ The rule of stare deeisis should not be departed from, except on the fullest.conviction that the law has been settled wrong.” 11 Texas, 449.
■ “ A rule which has become settled law is binding on the •Courts and should be followed.” 25 Ala. 201.
“It is not so importantthat the law should be rightly settled as that it should remain stable after it is settled.” 7 Monroe, 62-3.
“ It is the duty of the judiciary, and they have the pow,er to carry into effect the rights of parties according to ex
The married woman’s law does not affect the rights of these parties. The husband’s right having vested in 1840, it could not be divested by a law passed afterwards in 1845. This law was prospective, and not intended to embrace property which had already passed to the-husband. — (See Thompson’s Dig. 221.)
¥e are of opinion then that the right of property in the slave Primus, the subject of this contest,- was in Henry Mattair, and not in his wife, and that her claim to him is not sustained.
The judgment of the Circuit Court will be reversed and set aside, and the cause remanded to that Court with directions to enter judgment dismissing the claim of Mrs. Mattair, so as to leave the property subject to her husband’s debts.
Dissenting Opinion
delivered the following dissenting opinion:
I do not concur in the judgment of the Court, and will now proceed to give my views upon the subject.
This was a suit arising out - of a levy upon a slave, claimed by a feme covert as her separate property.
On the trial of the claim, before the Court, (a jury having been waived by consent of parties,) the plaintiff in ex-cution produced the record of a judgment recovered against the husband of the claimant, in the Circuit Court of Columbia County, on the 20th day of December, 1855, together With they?, fa. issu'ed thereon, on the 31st day of January, 1856. He also proved that Henry Mattair, the defendant in execution and the husband of the claimant, had been in
The claimant adduced in evidence a deed of gift from her father, Henry Jones, dated the 3rd day of November; 1840, purporting to convey the said slave t£ to Caroline Mattair, wife of Henry Mattair, and the heirs of her body,” with habendum to tc the said Caroline Mattair and her immediate offspring — to their own proper use and be-hoof forever.” It further appeared in evidence that the deed produced on the trial was a copy of the original which had been properly recorded, but which, together with the record of the same, had been destroyed in the fire which consumed the records and papers belonging to the clerk’s office of Columbia county. This established Copy was also recorded on the 2nd day of February, 1848. It was also in evidence that the debt upon which the judgment was founded, consisted of two promissory notes of the said defendant in execution — the one dated on the 29th of January, 1853, and the other on the 20th of March, 1854. It further appeared that at the time that these notes were given, the plaintiff in execution had full notice of the existence of the deed of gift, and that it had been recorded.
The Court gave judgment for the claimant, and from that judgment an appeal has been taken to this Court.
At the hearing before us, the counsel on both sides argued the cause, as though it were to be governed by the provisions'of the statute known as “the married woman’s law.”
For the plaintiff in execution, it was insisted that the act referred to could not be made to operate retroactively, and the property having been acquired anterior to the passage of the act, it was not protected by its provisions, •¡unless by the terms of the deed it had been secured to the wife as $ep>arate property.
Upon proceeding in this investigation, it is painful to discover in the adjudicated cases the extraordinary conflict which prevails upon the subject. In the English cases, of equal character and authority, the same identical
It has been held that the words “ for her own use and at her own disposal,” created a separate estate-for the wife, and barred the marital rights of the husband'. — (Prichard vs. Ames, 1 Turn. & Russ., 222; Inglefield vs. Coghlan, 2 Coll., 247.) So also the words, “ for her own use and benefit, independent of any other person.” — (Margetts vs. Barrenger, 7 Sim., 482.) So too the words “for her livelihood,” (Darly vs. Darly, 8 Atkins, 899,) or “ that she should receive and enjoy the issue and profits.” — (Tyrell vs. Hope, 2 Atkins, 558.). So where the direction is that “ the interest and profits be paid to her, and the principal to her, or to her order,, by note in writing under her hand;” — (Hulmne vs. Terrant, 1 Bro. C. C., 16;) or “her receipt to be ajsufficient discharge;” — (Lee vs. Prieaux, 3 Bro. C. C., 381;) or “to be delivered to her on demand.”' (Dixon vs. Olmins, 2 Cox, 414.)
On the other hand, it has been held that the words “ to-pay to her (a married -woman) and her assigns,” do not create a separate use for the wife. — (Dakins vs. Berrisford, 1 Ch. C., 194;) or where the gift is “to her use; — (Jacobs vs. Amyatt, 1 Mad., 379;) or “to her own use and benefit ;” — (Johnes vs. Lockhart, cited 3 Bro. C. C., 383;) or “ to her absolute use;” — (ex parte Abbott, 1 Deac., 338 ;) or when the payment is- directed to be made “ into her own proper hands, to and for her own use and benefit;” — - (Tyler vs. Lake, 4 Sim., 144;) or “to her own proper use and benefit ;”- — (Blacklow vs. Laws, 2 Hare, 49;) or when-the property is “ to be under her sole control;” — (Massy vs. Parker, 2 My. & Keene, 674.) So also a bequest to a
The foregoing citations are taken from the English reports, but, so far as I have had access to the American adjudications, I doubt if they will be found to afford any clearer light upon the subject. By a critical comparison of the words and their import which have been held to create a separate estate, and those which have been held not to do so, it will be seen that, where there have been no terms which expressly excluded the marital rights of the husband, the decision in the particular case has been purely arbitrary, and not conformable to any well-defined rule of interpretation. This being the case, they afford but an uncertain light to guide the footsteps of the enquirer after truth, and we are remitted at last to the application of elementary principles, the only unerring guide to correct conclusions.
It is well settled, that no particular form of words is necessary in order to vest property in a married woman to her separate use,; but the intention to give her such an interest, in opposition to the legal rights of her husband, must be clear and unequivocal. On the other hand, whenever it appears, either from the nature of the transaction, as in the instance of a settlement in the contemplation of marriage, where the husband is a party, or from the whole context of the instrument, limiting to the wife the property, that she was intended to have it to her sole use, that intention will be carried into effect by a court of equity. — ■ 2 Bright’s Husband and "Wife, 210; Leading Oases in Equity, 366.
It will thus be seen that the question is made to turn entirely on intention, and that where resort is to be had to implication, in order to ascertain that intention, the no
The case of Tyler v. Lake, (4 Sim. 144,) furnishes another authority for resorting to the context of the deed in order to determine the intention of the donor, where the expressions used in the instrument are ambiguous. By a deed declaring the trusts of the proceeds of real estates, the share of a married daughter of the grantor was directed “ to be paid into her proper hands for her own use and benefit;” and the same words were used in declaring the trusts of the shares of the grantor’s sons. In commenting upon the case, the Nice Chancellor observed — “ Supposing that it were ambiguous in this case, what is the meaning of the words relied on ? The will itself has given us a power of construing them ; for it must be supposed that the settlor intended the same in one gift as in the other. Now in the gift to William Tyler, the settlor has used the same words as in the gift to Mrs. Anthony, but it cannot be supposed that she intended, by using those words, to give him any peculiar power, over the property which he was to take, except what is implied in the gift, and therefore I am bound to say that in the gift to Mrs. Anthony, those words are to be taken as mere words of gift, and not as conferring on her any peculiar power over the property.”
Applying these views to the deed under consideration, and trying it by the tests above indicated, and I think there ■can be but little doubt as to the intention of the donor, when he used the words1 — “ to their own proper use and behoof forever.”
If we refer to the nature of the transaction, it will be found that this was a gift to a woman, who was at the time under the disability of coverture. If it were not the intention of the donor to give her a separate estate in the property, .and to bar the marital rights of the husband, why was the deed made to her? We certainly cannot impute to the donor an ignorance of the fact, that, at common law, personal property given to the wife inures absolutely to the husband. There musthave been some object contemplated in making the wife the donee in the deed. I do not insist that this circumstance taken alone, is sufficient to fix an intention to create a separate estate, but I enumerate it as only one of the indicia of such an intention.
And as to the relation of the parties: — This is not an ordinary purchase by the wife for value; but it is a voluntary gift from a parent to a married daughter, founded ■upon the consideration of “ natural love and affection.” The object doubtless, in making the deed to her, was to provide for the comfortable support and maintenance of
TTpon the next circumstance, however, to wit: the context of the deed, I do lay great stress, and I think it sufficiently potent of itself to fix the true signification and meaning of the words, “ to their own proper use and be-hoof forever.”
By reference to the deed it will be seen that the property was conveyed to her, “ and the heirs of her body.” Now there must have been some object contemplated by the donor in thus attempting to limit the property “ to the-heirs of her body.” That object evidently was to give the wife a life estate, with remainder over to her children, and thus to bar the estate of the husband. It is true that from ignorance of a well established rule of law, that object of the donor was frustrated ; but the failure to effectuate the obj ect by no means lessens the potency of the words, when considered as a means of interpreting the true meaning of the deed. In this connection, the words are to be considered, not with reference to their legal effect, but only as indicia of the intention. If there be any force in this view of the matter, then is it greatly strengthened by the fact, that the same effort to limit the estate is repeated in the habendum clause of the deed, where the words used are “ to her and to her immediate offspring.”’
After the most anxious deliberation upon this subject, and with an earnest desire to concur with the views of my brethren if possible, I am constrained to hold that the deed
