Cooke v. Husbands

11 Md. 492

Opinion

Tuck, J.,

delivered the opinion of this court.

As we understand the English cases, the doctrine was established before the American Revolution, that in equity a married woman is tobe treated as a feme sole, in respect to her separate property; and that she may dispose of it, unless restrained by the instrument creating the estate. There is to be found some diversity among’the cases since that time, and, especially, as to what amounts to restraint upon alienation. In this country the decisions have not been uniform, some following the English doctrine, and others denying to the wife any power over the subject not authorised by the deed.

For examination of these questions and the authorities, see 2 Roper on Husband & Wife, ch. 19, 20. 1 Sugden on Powers, ch. 4, sec. 1. Hill on Trustees, 633, (Ed. of 1857.) McQueen on Husband & Wife, 294. Clancy on Husband & Wife, chaps. 5, 6, 7, 8. White & Tudor’s Cases in Equity, 324, (Hulme vs. Tenant.) 3 Johns. Ch. Rep., 77; and same case on appeal in 17 Johns. Rep., 548. Story’s Eq., sec. 1390. Adam’s Equity, 44, 45.

in Maryland the law is settled, that whore a mode of alienation or of appointment is provided, it operates as a negation of any other mode, and is a paramount law governing and controlling every contract in relation to it. Lowry vs. Tiernan, 2 H. & G., 34. Tiernan vs. Poor, 1 G. & J., 216. Brundige vs. Poor, 2 G. & J., 1. Miller vs. Williamson, 5 Md. Rep., 219. But it lias never been decided as far as we can discover, whether a feme covert may or may not dispose of her separate estate, whore the deed is silent on the subject. We may consider it as unsettled as late as 1849, when the Court of Appeals declined examining the question of a feme covert’s jus disponendi of her estate, uwhere the instrument un der which she held conferred no such power in terms.” Smith vs. Morgan, 8 Gill, 139. The point was not determined in Miller vs. Williamson, 5 Md. Rep., 219, and that case is not to be considered as authority on this precise question, the observations of the court having been made, with reference to the will then under consideration. See also 5 Md. Rep., 134. The late Chancellor, in the cases of Tarr vs. Williams and Williams vs. Donaldson, 4 Md. Ch. Dec., 68 and 414, expressed his concurrence with Chancellor Kent’s views, as set forth in the case of The Methodist Church vs. Jaques, 3 Johns. Ch. Rep., 77, and also with those of Chief Justice Gibson, in Thomas vs. Folwell, 2 Whart., 11. Itmust be observed, that in these cases, the question we are now considering was not necessary to the decision, for in each of the deeds there was a mode of appointment prescribed, and it was sought to appoint or alienate in a different manner. Chief Justice Spencer, in reviewing Chancellor Kent’s opinion, (17 Johns., 578,) declared, that “from the year 1740 to 1793, (with the single exception of the opinion of Lord Bathurst, in Hulme vs. Tenant, which occurred in 1778, and in which a rehearing was granted by Lord Thurlow, and the opinion reversed,) there was an unbroken current of decisions, that a feme covert, with respect to her separate estate, is to be regarded in equity as a feme sole, and may dispose of her property without the consent or concurrence of her trustee, unless especially restrained by the instrument under which she acquires her separate estate.” And Chancellor Kent himself, admits the weight of authority to be against him. Indeed, he concedes that an intent may be deduced, where the deed does not speak, for in his opinion he says: “Perhaps, we may say, that if the instrument be silent as to the mode of exercising the power of appointment or disposition, it intended to leave it at large, to the discretion and necessities of the wife, and this is the most that can be inferred.” And he very clearly places his decree on the circumstance, that there was a mode of appointment prescribed in the instrument, and that no other could be resorted to. But if we are to take these eminent jurists, as having declared that power does not exist unless it be conferred by the deed, it may be said, that while there is much force in the reasoning employed by them, on the general subject, when considered with reference to the objects of such deeds, and the circumstances under which, generally, they are executed, as stated by them, very distinguished judges have held the contrary doctrine, and supported their judgments with as much ability, if it be conceded that they have based their conclusions on a correct understanding of the policy and purposes of such settlements.

We think that there is a principle underlying this branch of jurisprudence which should not be disregarded, and that is, that the right to dispose accompanies the ownership of property, which cannot be fettered by intendment, however this may be done by express words; and as these settlements are creatures of equity, designed to confer rights on married women not enjoyed at law, and may be made to express what the parties intend, the feme covert should be considered as having the power of disposal, unless a different intent be manifested by the instrument. It cannot be maintained as a general proposition, universally true, ‘That these settlements are intended to protect the wife’s weakness against her husband’s power, and her maintenance against his dissipation,” as assumed in 3 Johns. Ch. Rep., 113, for many of them are made where the utmost confidence is reposed in the. husband; the solo object being to protect the wife and family against the consequence of his misfortune or losses in business, by exempting the property from liability for his present as well as future debts. We are not to assume, that husbands will be constantly endeavoring to wrest their wives’ property from them, and devote it to their own uses. It is more reasonable to suppose, that they will guard and protect her rights, and act in reference to her separate estate, for the interest of all concerned in the trust.. That cases of hardship and wrong have occurred there can be no doubt, but, in a large majority, we think the purposes of the settlements have been faithfully fulfilled, by leaving to the wife the control of the property, under the advice of the trustee and her friends; nay, indeed, of the husband himself. It is not a conclusion of law, that when prop erty is settled on a married woman or on a feme sole in contemplation of marriage, the settler designs she shall never dispose of it. It may happen, that her interest will be promoted by a change of investment, and this is often provided for. We incline to the opinion, that in most of the instances in which the English doctrine has been departed from, the judgments were pronounced under circumstances of extreme hardship, bending the law to meet emergencies and prevent consequences not apprehended, and therefore not provided against at the creation of the trusts. In answer to many of the considerations urged against this view of the law, it may be said, that if the parties making the settlement intend to tie up the property in the wife’s hands, they may use apt and proper limitations, and that where they have not done so, it must be supposed they intended to leave it at large, to the discretion and necessities of the wife, as a feme sole, acting under the advice of those on whom oshe may rely. Therefore, following the decisions, which, under our institutions it is the duty of this court to respect as authority, we are of opinion, that a feme covert may act in reference to her separate estate as a feme sole, where the settlement contains no limitations on the subject, on the principle that the jus disponendi accompanies the property, unless restrained in terms, or by the manifest intention of the instrument.

Upon considering the will before us, and collating its several parts, we are of opinion that the testator designed to limit the power of disposal to the rents and profits arising from the property devised to the trustees, and that his two nieces had no authority to unite in a conveyance of the fee by the trustee, even conceding that, as to them, the forms prescribed by.the act of 1830, ch. 164, were not necessary; upon which we express no opinion. It has been decided, that if the interest of a fund or the profits of an estate be given by will, the devisee will take the fund or estate absolutely. This is generally the construction, but. it does not obtain where the will shows a different intent, for-the testator’s intention, to be gathered from the whole will, must have effect. Cassilly vs. Meyer, 4 Md. Rep., 1. Magruder vs. Peter, 4 G. & J., 323. In the present case, only the rents and profits are given to these nieces, with limitations over; and upon the happening of contingencies set out in the will, the estate is disposed of by another declaration of trust, upon the supposition, that a time would arrive when neither the nieces nor their descendants could enjoy the rents and profits. If the rents had been in terms limited to them for life, the point would have been clear of difficulty, on the authority of Lowry vs. Tiernan, 2 H. & G., 34, and numerous other decisions. The result must bo the same, if that intent can be collected from the will. It declares what the trustees are to do with the rents, “from and immediately after the death” of the nieces, not adding, in case they shall not have appointed or disposed of the rents in their lifetime, or equivalent words, but showing that the fee was to remain in the trustees, to gratify other purposes declared by the testator, which looked beyond a failure of issue of both nieces. In the case of Ijowry vs. Tieman, the court remarked upon the circumstance, that no power had been reserved to the wife over the principal, except by last will and testament, and then only in a certain event. Here no power over the estate is given at all, either absolutely or conditionally; the power relates to the rents and profits only. It was also said in that case, that rights were reserved to future children who would take as purchasers, and that these contingent rights must be protected. The same is the case here, and regard being had to the general intent of the will, we think the same construction should be applied. If we were to hold, that the nieces could make sweeping appointments, to operate beyond their own lives; so as to defeat the expectations of others, we should be setting up for this testator a will that he did not, make for himself. Wilson vs. Farquharson, 5 Md. Rep., 134.

We are also of opinion that they had power to appoint the rents and profits arising out of the contingent remainders to each, depending on the previous death of the other, as that acquired by Mrs. Cook, by the death of Mrs. Pennington without issue. In Fearne on Remainders, (by Smith, Ed. of 1845,) Vol., 2, 436, it is said, that “executory interests in persons in being and ascertained are assignable in equity, for a Valuable consideration, and even for good consideration, except as against bona fide creditors;” and that by this it is meant, “that an assignment of them is treated in equity as a contract or agreement, of which it will decree a specific performance.” Wright vs. Wright, 1 Ves. Sen., 409. 2 Peere Wms., 182, 187, 191. But on this point it is enough to say, that in Miller vs. Williamson, 5 Md. Rep., 219, it was decided, that a contingent interest depending on the death of another, was assignable, and relief was granted accordingly, which settled the doctrine in this State. Whether such an interest of a feme covert can pass at common law, except in the mode provided by our acts of Assembly, for transferring the estates of married woman, we need not decide; because this proceeding is in a court of equity, where a feme covert is allowed to deal with her separate property, and if this deed is not good at law, it may be treated and enforced as an agreement to assign or appoint. Tiernan vs. Poor, 1 G. & J., 216. And inasmuch as Mrs. Cook is asking relief against the operation of this instrument, on the ground that she had not power so to dispose of the rents, she must, if she succeeds to any extent, submit to be bound by her agreement, as far as under the will she had power to appoint.

But it is said, on the part of the appellants, that this will contains a restraint upon alienation or appointments, except of the rents as they might accrue and fall due, by force of the words “from time to time.” Lord Thurlow thought that the meaning of these words was to limit the appointment and prevent anticipation, and he hesitated before deciding otherwise; but, finally, yielded to what he considered the necessary deduction from previous decisions. It is a remarkable fact that they were introduced by the master in chancery, in the settlement of a married woman’s property, made under direction of the court, for the very purpose of preventing a sweeping appointment, and when their effect upon an appointment afterwards came before the same court, the Chancellor held that the words were not sufficient. Pybus vs. Smith, 1 Ves. Jr. 189. 3 Brown's Ch. Rep., 339. Speaking ofthis case, Lord Eldon, in Jones vs. Harris, 9 Ves., 493, said: “The court settling tbc property, in order to protect it, with all the anxious terms then known to conveyancers, in a day or two afterwards, while the wax was yet warm upon the deed, the creditors of the husband got a claim upon it, by an informal instrument, and the same judge who had made such efforts to protect her, was, upon authority, obliged to withdraw that protection.” Yet this construction has ever since been applied there to settlements containing this expression. What effect they shall have in Maryland, is a very important question, when we coiisider the time elapsed since the cases in which they received a judicial construction, that numerous settlements are drawn after the same form, substantially, and that much property may now be held, under like instruments, in reliance upon what was supposed to be the established doctrine. Under such circumstances we deem it unsafe to disturb the interpretation they have received. And we feel less hesitation in thus deciding in the present case, because the party now seeking to escape from the accepted construction, is herself a party to the deed, by which the power of appointment was exercised, and evidently supposed at that time, that she could pass the rents and profits by anticipation.

With these impressions of the will we should decide with the court below, but for the questions of fact presented by the record. We are of opinion that the appellants did not make out a case of fraud on the part of Husbands, in obtaining the property from Mrs. Cooke and Mrs. Pennington, but the case shows, as we think, that the deed was executed under a mistake, or rather that it conveyed more than the parties intended. In the first place it is to be observed, that the defendant does not fully and frankly answer the bill in this aspect of the complaint; he refers to the deed as containing the contract, instead of answering the charge of mistake in direct terms. Hamilton vs. Whitridge, 11 Md. Rep., 144. Besides, in his conversation with the witness Bridge, about the rents due after Mrs. Pennington’s death, when Bridge said, he thought Mrs. Cooke could sell nothing that she did not hold, the defendant replied, <fthat that had been his own opinion, but that he now thought otherwise; and then went on to state the express words of the deed, and to show how the words of the deed gave it to him,” and in a subsequent part of the examination he states, “that his lawyer said he could keep it after Mrs. P’s death; that his own opinion had been to the contrary once, but that his lawyer had given him to understand, that by the words of the deed, he could keep Mrs. P’s one-half of the Harrison street property after Mrs. P’s death, and during the life of Mrs. Cooke.” We consider this a clear intimation on the part of Husbands, that his own opinion of his right to the rents was founded on the original contract, as understood by the parties, until he received professional instruction as to the operation of the deed, and that his subsequent claim was based on the deed, as giving more than he could rightfully recover under the agreement of purchase. In addition to this, the draughtsman proves the mistake in plain terms. He says: “Witness certainly received instructions as to the interest intended to be conveyed by the deed, and it was intended to convey thereby the interest which each actually had at the time, and not what either might acquire by the death of the other. Witness thought that the deed only conveyed that interest, and would think so now but for the doubts of counsel.” Now, what other construction can this language receive than this, that he was instructed to prepare a deed, conveying a certain interest in the property, and, by mistake, made it to embrace a greater interest than the parties intended 1 It is of no consequence, that he does not state'clearly from whom he received his directions. He says, however, that Mrs. Cooke never called on him about the deed, nor did he see her before it was executed. It appears from his testimony, that Pennington first spoke to him about drawing the deed, and that Husbands saw him several times afterwards, before it was prepared. The inference is clear, that he received instructions from one or both of them, and this is established by the evidence of Lovegrove, who states, that Spurrier received instructions from Pennington and Husbands. As Spurrier states what the instructions were, Husbands had a very good reason for saying to Bridge, that he once thought the deed did not convey the interest in remainder, because he was privy to the whole transaction, in- eluding the directions by which the deed was prepared, and, according to Spurrier’s testimony, must have known that it was not designed to transfer the contingent interests. The rules governing cases of this kind are very stringent, and we are not disposed to relax them, but this is not like the cases in the Court of Appeals, in which the doctrine relied upon in argument was announced. In Wesley vs. Thomas and Watkins vs. Stockett, 6 H. & J., 24, and 435 it was shown as to one case, that the deed was in the form in rvhich the parties intended and directed it should be drawn, and, as to the other, the contrary did not appear; but in the former case, the court stated the grounds on which questions of this kind must turn; that there were numerous instances where parol proof was admitted to correct mistakes in written agreements; and that mistakes and misapprehensions of the drawers of deeds, are as much a head of relief as fraud and imposition. Whatever courts may have held, as to the nature or character of proof necessary to correct mistakes in deeds, we suppose none can be more forcible than the testimony of the draughtsman himself, that he had not drawn the instrument according to the instructions he received, when considered in connection with, what we consider, the admission of Husbands to Bridge, that the deed covered a larger interest than the parties intended to transfer. If a mistake in law be committed, that is, if a deed be prepared, according to the directions of the parties, in a particular form, with the impression and design that it shall serve a purpose which the law does not allow, the case is to be determined on a different principle. Such were the cases of Anderson vs. Tydings, 8 Md. Rep., 427, and Campbell vs. Lowe, 9 Md. Rep., 500.

The decree will be reversed and the cause remanded, in order that the deed may be reformed, and the case disposed of according to the views of the contract herein expressed; in which adjustment an account should be taken in respect to the rents received, on account of Mrs. Pennington’s interest under the will, since her death; that the same may be paid to Mrs. Cooke, or invested for her separate use.

Reversed and remanded with costs.