44 Pa. 224 | Pa. | 1863
The opinion of the court was delivered, by
All the title of Mrs. Brown was derived immediately or mediately from Robert Fleming. By his will, dated December 17th 1844, and proved April 17th 1845, he devised all the residue of his estate, not previously disposed of, to a nephew and his four nieces, of whom Mrs. Brown was one, to hold to them,-their heirs and assigns, as tenants in common. The devise was accompanied by the following declaration : “ It is also my will, that the property hereby bequeathed to my said four nieces for their sole and separate irse, shall bo free from all liabilities for the debts and contracts, or other engagements, of any husband or husbands, each or any of them has or may at any future time have.”
Mrs. Stewart, also one of the four nieces (devisees under Mr. Fleming’s will), subsequently died, after having made her will, which was duly proved on the 5th of July 1856, by which she devised to her sister, Mrs. Brown, to and for her sole and separate use, the residue of her estate not otherwise given. To this devise she added the following provision: “ But it is my will that the aforesaid devise and bequest to my sister Margaret shall be and enure to and for her sole and separate use, free from any debts, contracts, engagements, or liabilities of her present or any future husband, and that she is to enjoy the full income of the same (after paying the before-mentioned sums bequeathed by me) during her lifetime, and that at her death all that share here devised and bequeathed shall go, and I do hereby devise and bequeath the same, to such person or persons, and for such estates, as the said Margaret shall by her last will appoint, and in default of appointment, or so far as the same, if made, may not extend, I give, devise, and bequeath the same to her son, Robert F. Brown, and his heirs.”
When these devises were made, Mrs. Brown was a feme covert, intermarried with William Brown, and her coverture has not yet ceased.
It is plain that the interest devised in each of them was a separate estate. The gift was expressly to the.sole and separate use of the devisee, and the husband was also excluded by the provisions that the property should be free from any of his debts, contracts, engagements, or liabilities. It was' not the less a separate estate because the gift was made without the intervention of a trustee. That is wholly unimportant. The wife’s interest is the same, whether the gift is to her directly or to a trustee for her. It does not depend upon the formal mode in which the gift has been made. At law she can hold no separate estate in lands; such an estate is recognised only in equity. And if lands be given to her separate use, and no trustee be named, a court of equity will convert the husband into a trustee for her. This is too firmly settled to admit of question. See Clancy on Married Women 256, and cases collected in Hare & Wallace’s Notes to White & Tudor’s Leading Cases in Equity, Vol. 1, p. 414. It has often been so ruled in this state. And as the wife’s interest in her separate estate is not affected by the fact that there is no trustee named in the instrument creating her estate, as it is the same in such a case as it would be had there been a trustee named, there is no reason why her powers, incident merely to ownership of the estate, should be greater in one case than in the other. The deed or will which settles the property to her separate use, may give powers which, without it, do not belong to the ownership of a separate estate; but the nomination of a trustee is neither an enlargement, nor is it restrictive, of her power over the property.
Regarding, then, the lands devised to Mrs. Brown by Mr. Fleming and Mrs. Stewart as in equity, held in trust for her sole and separate use, the rule in this state is, unless it has been changed by the Married Women’s Act of 1848, that she cannot alienate or encumber them unless the power to do so was expressly conferred by the wills that gave her the separate estate. This was the rule laid down in Lancaster v. Dolan, 1 Rawle 231, and it was unflinchingly adhered to in numerous cases, certainly until after the passage of the Act of 1848 ; and it has been maintained ever since, unless Haines v. Ellis, 12 Harris 253, was a departure. In The Pennsylvania Insurance Co. v. Foster, 11 Casey 134, it was reiterated, and that in view of the provisions of the Act of 1848, which were regarded as defining a different separate estate in a wife from an equitable separate estate created by a conveyance to her separate use. True, there was no trustee named in the first of these cases, and there was in
In fine, we have no doubt the ease of The Pennsylvania Insurance Company v. Foster was well decided; that the Act of 1848 has no reference to estates settled to the separate use of married women, whether a trustee be named in the deed of settlement or not, and that in both cases married women have no power of alienation beyond suchas are expressly given in the instruments by which the estates are created. Haines v. Ellis is not a correct enunciation of the law. And as neither by the will of Mr. Fleming nor by that of Mrs. Stewart, was any power conferred upon Mrs. Brown to mortgage her separate estate, her mortgage to the plaintiff was unauthorized and void.
The judgment of the District Court is revei’sed, and judgment is given for the defendants on the case stated.