Unger v. Price

9 Md. 552 | Md. | 1856

Mason, J.,

delivered the opinion of this court.

In December 1854, Frederick Unger, one of the appellants, conveyed all his real estate to Adam Shank, in trust for his creditors, in which conveyance his wife Elizabeth did not join.

Afterwards, Shank, the trustee, sold the real estate to Lyr day, and Lyday being anxious to disincumber the estate of the contingent dower right of the wifej agreed with and did purchase of Mrs. Unger her potential right of dower in the land, for the sum of $500, and Mrs. Unger, together with her husband, made to Lyday a deed in order to extinguish the dower right. The purchase of the potential dower estate, and the payment of $300 in cash thereon by Lyday, occurred in the latter part of February 1855, the said purchase money being paid directly into the hands of Mrs. Unger.

The evidence tended further to. show, that with the money thus acquired the wife purchased the property now in controversy, in her name and for her use. Subsequently, the appellee levied upon the same to satisfy an execution against the husband, and hence this action.

The cases cited and relied upon by the appellee’s counsel, arose under the law as it existed prior to the act of 1853, ch. 245, . That act has materially modified the law as to (he rights of the husband, oyer the property of his wife. As the law previously stood even, we have no doubt that it would have been competent for the wife, with the assent of her husband, and through the instrumentality of a trustee, to have converted her contingent or potential right of dower into money or other available property, for her sole and separate use, and such a design would not have been affected by the circumstance that the husband had creditors at the time, for the obvious reason that such a separate estate would be derived from a source to which the creditors had no right to look for payment of their debts. 1 Story’s Eq., sec. 367. Hoot vs. Sorrell, 11 Ala. Rep., 386. The third section of the act of 1853 authorises the wife to hold property, to her sole and separate use, without the interposition of a trustee, and the whole scope and purpose of the law seem to be, to invest a married woman with the powers of a feme sole, with reference to such property as she may be authorised to hold and enjoy, whether under the act of 1853 or otherwise, to her sole and separate use. Therefore it matters not, whether the property acquired by the wife from the sale of her contingent right of dower, be embraced within the strict letter of the first section of the act or not; that is, whether it be acquired “by purchase, gift, grant, devise, bequest, or in course of distribution.” It is property acquired from a source wholly independent of her husband, and therefore not held “in prejudice of the rights of his subsisting creditors,” and being invested with power under the act of 1853 to hold property as a feme sole, we think the property in controversy passed to Mrs. Unger as her separate estate, “protected from the debts of the husband, and not in any way liable for the payment thereof.”

The object of the act of 1853 was to extend, not to curtail the rights of married women, and although this case may not have been embraced strictly within the terms of the first section, (although we do not decide that it is not,) yet surely it cannot be on that account inferred, that its framers designed to deprive the wife of rights which she could have enjoyed independent of the act, merely because those rights were not specifically enumerated, and especially too as the third section increases the facilities by which they can be enjoyed, namely, by dispensing with the necessity of a trustee.

Unlike the case of Turton vs. Turton, 6 Md. Rep., 375, and the other cases cited by the appellee’s counsel, here was a clear purpose manifested by the parties, to create in the wife a separate estate out of her contingent right of dower.

We are, therefore, of the opinion, that the instructions given by the circuit court were erroneous. The prayer as asked by the plaintiff’s counsel, resting upon the theory announced in this opinion, ought to have been granted without any modification.

Judgment reversed and procedendo awarded.