Wilde J.
delivered the opinion of the Court. The first question to be considered is, whether this Court, as a court of equity, has jurisdiction of the case as stated in the bill. This depends on another question, namely, whether the legal estate vested in Hobbs in trust according to the terms of the deed, or whether it vested in the plaintiff by virtue of the statute of uses. The use of the word “ trust ” is not deci sive on this point, but the intention of the donor is to be ascertained by the object of the gift, and the situation of the parties at the time when the deed was executed. And if the intention was, to give a separate interest to the wife, ffee from the control of her husband, then it is very clear, shat this provision for the wife is to be regarded by a court c equity as a technical trust, and not as a use executed by the St. 27 Hen. 8, c. 10. It is true, that the words of that statite are sufficiently comprehensive to extend to all uses and trusts whatever; and before the statute these words were used indiscriminately to effectuate the same purpose. But after the statute, courts of equity distinguished between technical uses and trusts, preserving the latter from the operation of the statute, and moulding them into such forms, and regulating them by such rules, as would not interfere with the true intention of the statute. In pursuance of this construction, it has long been well established, that when properly is conveyed to trustees for the separate use of a married woman, a court of equity will enforce the performance of the trust, and pro tect it against the legal rights of the husband. Such a trust however must be clearly and distinctly expressed before the Court will establish it against the rights of the husband, and the question is, whether the trust which the plaintiff seeks to enforce, is thus clearly and distinctly expressed.
There are numerous decisions on this point, according to-which there can be no doubt that the rents and profits of the estate conveyed to Hobbs were given in trust for the separate use of the plaintiff. Most of these decisions have taken place with respect to devises, but the same reasons would apply to trusts created by deeds ; for whatever may be the form of the gift, the intention of the donor is to govern, if the intention is designated with sufficient certainty. No particular form of [331]*331words or technical language is necessary to express this intention. If it appears from the words of the deed, that a separate provision was intended to be made for the wife, it will be sufficient. Where property is given in trust for the sole and separate use of a married woman, or in trust “ to permit her to take the rents and profits,” or “ to pay the rents and profits to her,” there can be no doubt of the intention of the donor to create a separate interest in her to the exclusion of her husband. And other expressions have been frequently held to be equivalent. In Kirk v. Paulin, 7 Vin. Abr. 95, a bequest to a married woman “ to be at her disposal,” was held to give her a separate estate. And in Tyrrel v. Hope, 2 Atk. 558, where before marriage the intended husband had given a promise in writing to his intended wife, that “she should enjoy and receive the issues and profits of one moiety of the estate then in the possession of her mother, after the decease of her mother,” it was held by Lord Hardwicke, that these words gave the wife a separate estate, and that the writing could bear no other construction, although the words “ separate use ” were not in the agreement; for that it could not be intended that the wife should receive the rents and profits, if they were to be the property of the husband. ■ And in Darley v. Darley, 3 Atk. 399, an estate given to the husband “for the livelihood” of his wife, was considered as a trust for the wife. So, the words “ to pay into the proper hands of the wife,” and the words “ her receipt to be a discharge,” have been held to import an exclusive interest in the wife. Hartley v. Hurle, 5 Ves. 540. The question in all these cases and others, has been, what was the intention of the donor or person creating the trust; and if the intention to create a separate estate or interest in the wife, is distinctly expressed, or manifestly appears by circumstances connected with the words of gift, it is immaterial in what language the intention is manifested. In the present case, the estate was conveyed to the trustee “ in trust and for the sole use and benefit of the plaintiff,” during her natural life, she then being married. These words, we think, distinctly express an intention to create a trust for the separate use of the wife, and would entitle hei to the rents and profits to the exclusion of [332]*332her husband, if the conveyance had been made to the husband on the same trust, or if the land had been conveyed to the wife directly for her sole use and benefit for life, and remainder to her three children, without vesting the estate in trustees. It seems to be now settled in England, although formerly doubted, that a court of equity will supply the want of trustees by the gift or devise, and make the husband trustee.
But this case does not depend alone upon the words by which the trust is expressed, although those seem sufficient to ascertain the meaning of the gift. It appears, that the plaintiff was married at the time of the conveyance of the trust estate, that it was made by the mother of the plaintiff in consideration of love and good will, and that the legal estate was conveyed to a trustee. These are strong circumstances to show, that it was the intention of the grantor to make a separate provision for the wife ; and although these circumstances alone would not be sufficient to exclude the husband, yet when, in addition, it is declared, that the trustee shall hold the estate during the life of the wife for her sole use and benefit, it seems impossible to doubt as to the true intent and meaning of the grant. We think it manifest, that the legal estate is in Hobbs, that he holds it in trust for the sole and separate use of the plaintiff, and that he is bound to collect and pay over to her the rents and profits of the trust estate. It follows, that this Court has jurisdiction of the case ; and, upon the facts alleged in the bill, there can be no question, that the husband was properly made a party to the suit, he having received the rents and profits of the trust estate, for which he will be liable to account, unless the Court should refuse the relief prayed for in consequence of the supposed misconduct of the wife. There are, no doubt, cases where a husband would be entitléd to come into a court of equity to restrain the trustees of his wife from proceeding at law for her separate maintenance, or where the court would refuse her relief on a bill to enforce a trust therefor. But to justify the court thus to interfere, the misconduct of the wife must be clearly proved ; such, as that she had been guilty of adultery or criminal conversation, or had left her husband without any cause whatever. And we are clearly of opinion, [333]*333that the proof is wholly insufficient to justify the Court on this ground to deny the relief prayed for. Perhaps the plaintiff has failed to prove such misconduct on the part of her husband as would fully justify her in leaving him without his consent; but a reasonable excuse appears, and this is sufficient. The burden of proof is on the husband to show his wife’s misconduct, and that she separated from him without cause or any manner of excuse and without his consent. This the evidence wholly fails to prove.
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Wilde J.
delivered the opinion of the Court. The first question to be considered is, whether this Court, as a court of equity, has jurisdiction of the case as stated in the bill. This depends on another question, namely, whether the legal estate vested in Hobbs in trust according to the terms of the deed, or whether it vested in the plaintiff by virtue of the statute of uses. The use of the word “ trust ” is not deci sive on this point, but the intention of the donor is to be ascertained by the object of the gift, and the situation of the parties at the time when the deed was executed. And if the intention was, to give a separate interest to the wife, ffee from the control of her husband, then it is very clear, shat this provision for the wife is to be regarded by a court c equity as a technical trust, and not as a use executed by the St. 27 Hen. 8, c. 10. It is true, that the words of that statite are sufficiently comprehensive to extend to all uses and trusts whatever; and before the statute these words were used indiscriminately to effectuate the same purpose. But after the statute, courts of equity distinguished between technical uses and trusts, preserving the latter from the operation of the statute, and moulding them into such forms, and regulating them by such rules, as would not interfere with the true intention of the statute. In pursuance of this construction, it has long been well established, that when properly is conveyed to trustees for the separate use of a married woman, a court of equity will enforce the performance of the trust, and pro tect it against the legal rights of the husband. Such a trust however must be clearly and distinctly expressed before the Court will establish it against the rights of the husband, and the question is, whether the trust which the plaintiff seeks to enforce, is thus clearly and distinctly expressed.
There are numerous decisions on this point, according to-which there can be no doubt that the rents and profits of the estate conveyed to Hobbs were given in trust for the separate use of the plaintiff. Most of these decisions have taken place with respect to devises, but the same reasons would apply to trusts created by deeds ; for whatever may be the form of the gift, the intention of the donor is to govern, if the intention is designated with sufficient certainty. No particular form of [331]*331words or technical language is necessary to express this intention. If it appears from the words of the deed, that a separate provision was intended to be made for the wife, it will be sufficient. Where property is given in trust for the sole and separate use of a married woman, or in trust “ to permit her to take the rents and profits,” or “ to pay the rents and profits to her,” there can be no doubt of the intention of the donor to create a separate interest in her to the exclusion of her husband. And other expressions have been frequently held to be equivalent. In Kirk v. Paulin, 7 Vin. Abr. 95, a bequest to a married woman “ to be at her disposal,” was held to give her a separate estate. And in Tyrrel v. Hope, 2 Atk. 558, where before marriage the intended husband had given a promise in writing to his intended wife, that “she should enjoy and receive the issues and profits of one moiety of the estate then in the possession of her mother, after the decease of her mother,” it was held by Lord Hardwicke, that these words gave the wife a separate estate, and that the writing could bear no other construction, although the words “ separate use ” were not in the agreement; for that it could not be intended that the wife should receive the rents and profits, if they were to be the property of the husband. ■ And in Darley v. Darley, 3 Atk. 399, an estate given to the husband “for the livelihood” of his wife, was considered as a trust for the wife. So, the words “ to pay into the proper hands of the wife,” and the words “ her receipt to be a discharge,” have been held to import an exclusive interest in the wife. Hartley v. Hurle, 5 Ves. 540. The question in all these cases and others, has been, what was the intention of the donor or person creating the trust; and if the intention to create a separate estate or interest in the wife, is distinctly expressed, or manifestly appears by circumstances connected with the words of gift, it is immaterial in what language the intention is manifested. In the present case, the estate was conveyed to the trustee “ in trust and for the sole use and benefit of the plaintiff,” during her natural life, she then being married. These words, we think, distinctly express an intention to create a trust for the separate use of the wife, and would entitle hei to the rents and profits to the exclusion of [332]*332her husband, if the conveyance had been made to the husband on the same trust, or if the land had been conveyed to the wife directly for her sole use and benefit for life, and remainder to her three children, without vesting the estate in trustees. It seems to be now settled in England, although formerly doubted, that a court of equity will supply the want of trustees by the gift or devise, and make the husband trustee.
But this case does not depend alone upon the words by which the trust is expressed, although those seem sufficient to ascertain the meaning of the gift. It appears, that the plaintiff was married at the time of the conveyance of the trust estate, that it was made by the mother of the plaintiff in consideration of love and good will, and that the legal estate was conveyed to a trustee. These are strong circumstances to show, that it was the intention of the grantor to make a separate provision for the wife ; and although these circumstances alone would not be sufficient to exclude the husband, yet when, in addition, it is declared, that the trustee shall hold the estate during the life of the wife for her sole use and benefit, it seems impossible to doubt as to the true intent and meaning of the grant. We think it manifest, that the legal estate is in Hobbs, that he holds it in trust for the sole and separate use of the plaintiff, and that he is bound to collect and pay over to her the rents and profits of the trust estate. It follows, that this Court has jurisdiction of the case ; and, upon the facts alleged in the bill, there can be no question, that the husband was properly made a party to the suit, he having received the rents and profits of the trust estate, for which he will be liable to account, unless the Court should refuse the relief prayed for in consequence of the supposed misconduct of the wife. There are, no doubt, cases where a husband would be entitléd to come into a court of equity to restrain the trustees of his wife from proceeding at law for her separate maintenance, or where the court would refuse her relief on a bill to enforce a trust therefor. But to justify the court thus to interfere, the misconduct of the wife must be clearly proved ; such, as that she had been guilty of adultery or criminal conversation, or had left her husband without any cause whatever. And we are clearly of opinion, [333]*333that the proof is wholly insufficient to justify the Court on this ground to deny the relief prayed for. Perhaps the plaintiff has failed to prove such misconduct on the part of her husband as would fully justify her in leaving him without his consent; but a reasonable excuse appears, and this is sufficient. The burden of proof is on the husband to show his wife’s misconduct, and that she separated from him without cause or any manner of excuse and without his consent. This the evidence wholly fails to prove. On the contrary, all the evidence tends to show the misconduct of the husband. There is direct evidence, that he treated her unkindly and that they lived unhappily together, although up to the time of separation there is not the slightest imputation on her conduct or character, except that she complained of her husband’s conduct and character, and his treatment of her, without sufficient cause. It appears very clearly that the plaintiff’s feelings had been deeply wounded by the reports circulated against her husband, and for this and other reasons she came to a determination in 1825 to separate from him; but obstacles and difficulties intervened, and she yielded to their influence, reluctantly, no doubt. But whatever may have been her reluctance to remain, it does not appear that her husband had any just cause of complaint against her until her final separation. Nor does it appear, that he, in the mean time, took any measures to vindicate himself against the aspersions cast on his character, or took any pains to soothe her feelings of mortification and wounded delicacy by kind and affectionate treatment. Under the influence of these painful circumstances, she, in 1830, finally came to the resolution to insist on a separation, and he consented ; unwillingly, no doubt; but from some motive he was induced to come to an agreement, and the separation took place. He allowed her to take away the children, the furniture, and other property ; and this furnishes a strong presumption that he thought, at least, she was excusable in separating herself from him, as Lord Hardwicke remarks, in the case of Moore v. Moore, 1 Atk. 277, when commenting upon similar evidence.
This case was cited by the defendant's counsel as a leading case, and for the purpose of establishing the doctrine, which [334]*334no one will doubt, that a wife is not to be encouraged to leave her husband in violation of the marriage contract, by the expectation of enjoying a separate maintenance, and that in such cases a court of equity may interfere. But undoubtedly a wife would be justified in deserting her husband for extreme cruelty and for other causes. And circumstances may occur, and too frequently do occur, which may render a separation conducive to the happiness of both parties, such as perpetual dissensions, alienated affections and other inducements. The case of Moore v. Moore is certainly a very strong case m favor of the plaintiff. There it appeared, that Sir Francis Moore had before and in consideration of the marriage to be had between him and his intended wife, conveyed lands to trustees, upon trust to pay out of the rents and profits ¿6100 a year to Lady Moore, for her separate use. The marriage took effect, and the parties lived together with great harmony for more than twenty years, when some disputes arising between them about her pin-money, she privately left him, and went to France, where she continued to reside ; and she having prevailed with her trustees to bring an ejectment for the trust lands, Sir Francis brought a bill in equity, complaining of his wife’s conduct, and insisting that she was only entitled to the annuity during her cohabitation with him. He also offered to pay the annuity if she would live with him, and to receive her kindly, and prayed to be relieved against the payment of the annuity and for an injunction to stay proceedings in ejectment. Lord Hardwicke decided, that there was no sufficient foundation for relieving against the payment of the annuity : and the principles upon which that decision was made seem to us to be entirely correct. The decision was not founded on the justification of the wife ; for the chancellor says, that under the circumstances of the case she was not.justifiable in going away, but was so far excusable, that she ought nc t tc be deprived of her support, for the purpose of compelling her to return to her husband. But if the decision had beer the other way, it would have little weight against the plaintiff s claim in the present case. The two cases differ much in theii circumstances. That was a case, where the wife had eloper without justifiable cause. In this case there was a separatior [335]*335ny consent, and there is much reason to believe, that if the facts could be fully investigated, the wife would be excusable, if not perfectly justifiable, in leaving her husband without his consent. In the case of Lee v. Lee, 1 Dickens, 321, and 2 Dickens, 806, it was proved, that the wife had eloped from her husband without any cause, so that the decision in that case cannot avail the defendants; for to maintain the defence on this ground, the plaintiff’s misconduct must be most clearly and plainly proved. In Watkins v. Watkins, 2 Atk. 96, which was a bill brought against the husband to have a maintenance out of her fortune, upon a suggestion of cruel usage, there was considerable evidence of the wife’s misconduct and indecent behaviour; but Lord Hardwicke decreed in favor of the wife, because the proof of her misbehaviour was not full. Upon the whole, it is quite clear that the plaintiff is entitled to the relief prayed for, and that the answer of her husband is wholly insufficient. The case will, therefore, be referred to a master to take an account of rents .and profits, unless the parties should agree upon the amount; in which case, a final decree may be now entered. The plaintiff is entitled to the rents and profits from the time of the separation. No demand on the husband was necessary ; for it appears by his answer, that he has denied her right, which dispenses with a demand ; f otherwise, it would be necessary.