By the Court, Strong, P. J.
That part of the decree of the late vice chancellor, from which no appeal has been taken, affirms the validity of the post-nuptial settlement, executed by the husband immediately after the marriage of the principal parties, and declares the inefficacy of the several appointments, gifts or conveyances of Mrs. Cruger in favor of her husband, intermediate such settlement and the deed of the 19th of November, 1841. The counsel for the respondent contended on the argument, that the appeal from that part of the decree establishing the last mentioned deed opened the whole case as presented by both parties in the court below for review, and that it is competent for us still to grant the relief claimed in his bill. An appeal from a part of a decree which is so inseparably connected with the remaining portion of it that the whole must necessarily stand or fall together, or which cannot be reversed, leaving the part not affected by the appeal in full force, without effecting great and irremediable injustice, might possibly bring up the whole case for reconsideration. But neither is the case here. -Ordinarily, as was remarked by Chief Justice Kent, in Sands [264]*264v. Codwise, (4 John. 602,) “ it is a rule of practice from which we ought not to depart, that when the petition of appeal recites specifically the parts of the decree of which it com plains, and from which the appeal is made, the appellant,” (and he might have added the respondent,) “is to be confined to those parts of the decree.” Although the validity of the post-nuptial settlement cannot now be questioned, it is perfectly competent for us to examine its terms, to see whether they authorize the conveyance of half the income of Mrs. Cruger’s estate agreeably to the deed of the 19th of November, 1841. The construction of such deed, to that extent, is necessarily involved in the appeal. Indeed it expressly includes that part of the decree which declares that such deed is a good and valid appointment under the power contained in the settlement.
By the post-nuptial settlement Mr. Cruger conveyed to trustees for the benefit of Mrs. Cruger all his estate in the property, real and personal, which belonged to her at the time of their marriage, and his powers over it; and he of course conveyed no more. The law very clearly defines what such estate and powers were. He was entitled to the possession of her real estate, and to the receipt and enjoyment of the rents and profits, during their joint lives, and to her personal estate absolutely. Of course he had the power of disposition, to the extent of his rights, subject to the equitable claim of his wife, under circumstances which it is unnecessary to mention, to a suitable settlement. By his conveyance the right to the possession, and the income of the real estate, and the whole personal estate, passed to the trustees. The power of disposal given to Mrs. Cruger, extended only to the possession and income of the real estate, although it was absolute as to the principal and income of the personal property, subject, however to such provision (if any,) of the revised statutes as may have been applicable. It follows that the husband could not convey to trustees for the benefit of his wife, the right to dispose of the fee in the real estate at any time, nor of the rents and profits after his decease. Those were unaffected by his conveyance, and remained the same as if no such instrument had been made.
[265]*265The deed from Mrs. Cruger, of the 19th of November, 1841, in terms conveys to Mr. Cruger, during the remainder of his natural life, the one equal half part of the net income of all and singular her separate fortune and estate, both real and personal. There are two questions as to the validity of this instrument ; 1st. Whether Mrs. Cruger had the requisite power to transfer the interests which it purports to convey; and 2d. Whether it was made under circumstances to which a court of equity will give its sanction. The question as to Mrs. Cruger’s power over her property, so far as it relates to the efficacy of the instrument in question, I shall consider in reference, first, to the real estate, and second, to the personal estate.
The counsel for Mr. Cruger contended on the argument that the power of Mrs. Cruger to dispose of the income of her real estate was absolute, under the 87th section of the revised statutes relating to the nature and qualities of estates in real property, and their alienation. That section provides that “a special and beneficial power may be granted to a married woman to dispose during the marriage, and without the concurrence of her husband, of any estate less than a fee belonging to her in the lands to which the power relates.” The settlement gives to Mrs. Cruger the power to dispose of whatever it conveyed to trustees for her benefit, by deed or will, “ in all respects as if she were unmarried”—that simply unbinds the shackles of matrimony as to her rights over the property, but clearly gives her no power in addition to those which she would have possessed had she been a feme sole. Those rights were conferred by a deed in trust, and must of course depend upon its validity. The vice chancellor considers the trust valid under the 3d subdivision of the 55th section of the statute relative to uses and trusts, which provides that an express trust may be created to' receive the rents and profits of lands, and apply them to the use of any person, during the life of such person, or for any shorter term, subject to the rules prescribed in the first article of the title. This, if the construction be correct—and, so far as the interests of these parties in the cause are involved, it is res judicata—necessarily subjects the interest [266]*266and power of Mrs. Cruger to the provisions of the 63d section of the same statute, which declares that “no person beneficially interested in a trust for the receipt of the rents and profits of lands can assign or in any manner dispose of such interest.” This was intended to prevent the many evils arising from the anticipation and premature conveyance, of such rents and profits, and most assuredly is as essential to protect the interests of married women, as of any other persons. The vice chancellor supports the conveyance of the rents and profits in this case, on the ground that the receipt of such income by the husband may be for the use of the wife. That may be or may not be so. An order to receive the rents and profits, such as was granted by Mrs. Cruger shortly after the marriage, might be of that character, because she might continue it so long as he should devote such income faithfully to the mutual benefit, and revoke it when he should squander the property for other purposes. But an irrevocable transfer of the income to him during life could never be considered in the same light. It would enable the husband, unless prevented by a court of equity, to abstract every cent of it from the use of the wife, and in effect to contravene the main object of the instrument, which was to place the income of the property under her sole control, as essential for her use and benefit. I conceive, therefore, that Mrs. Cruger’s deed to her husband of the 19th November, 1841, did not confer on him any right to receive any part of the future rents and profits of the real estate.
The next question is whether, as the vice chancellor supposes, the income of the personal estate is placed by another section of the statute upon a similar footing, and subjected to the like rules. The provision of the revised statutes relied on by the learned judge, and also by Chancellor Walworth in Clute v. Bool, (8
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By the Court, Strong, P. J.
That part of the decree of the late vice chancellor, from which no appeal has been taken, affirms the validity of the post-nuptial settlement, executed by the husband immediately after the marriage of the principal parties, and declares the inefficacy of the several appointments, gifts or conveyances of Mrs. Cruger in favor of her husband, intermediate such settlement and the deed of the 19th of November, 1841. The counsel for the respondent contended on the argument, that the appeal from that part of the decree establishing the last mentioned deed opened the whole case as presented by both parties in the court below for review, and that it is competent for us still to grant the relief claimed in his bill. An appeal from a part of a decree which is so inseparably connected with the remaining portion of it that the whole must necessarily stand or fall together, or which cannot be reversed, leaving the part not affected by the appeal in full force, without effecting great and irremediable injustice, might possibly bring up the whole case for reconsideration. But neither is the case here. -Ordinarily, as was remarked by Chief Justice Kent, in Sands [264]*264v. Codwise, (4 John. 602,) “ it is a rule of practice from which we ought not to depart, that when the petition of appeal recites specifically the parts of the decree of which it com plains, and from which the appeal is made, the appellant,” (and he might have added the respondent,) “is to be confined to those parts of the decree.” Although the validity of the post-nuptial settlement cannot now be questioned, it is perfectly competent for us to examine its terms, to see whether they authorize the conveyance of half the income of Mrs. Cruger’s estate agreeably to the deed of the 19th of November, 1841. The construction of such deed, to that extent, is necessarily involved in the appeal. Indeed it expressly includes that part of the decree which declares that such deed is a good and valid appointment under the power contained in the settlement.
By the post-nuptial settlement Mr. Cruger conveyed to trustees for the benefit of Mrs. Cruger all his estate in the property, real and personal, which belonged to her at the time of their marriage, and his powers over it; and he of course conveyed no more. The law very clearly defines what such estate and powers were. He was entitled to the possession of her real estate, and to the receipt and enjoyment of the rents and profits, during their joint lives, and to her personal estate absolutely. Of course he had the power of disposition, to the extent of his rights, subject to the equitable claim of his wife, under circumstances which it is unnecessary to mention, to a suitable settlement. By his conveyance the right to the possession, and the income of the real estate, and the whole personal estate, passed to the trustees. The power of disposal given to Mrs. Cruger, extended only to the possession and income of the real estate, although it was absolute as to the principal and income of the personal property, subject, however to such provision (if any,) of the revised statutes as may have been applicable. It follows that the husband could not convey to trustees for the benefit of his wife, the right to dispose of the fee in the real estate at any time, nor of the rents and profits after his decease. Those were unaffected by his conveyance, and remained the same as if no such instrument had been made.
[265]*265The deed from Mrs. Cruger, of the 19th of November, 1841, in terms conveys to Mr. Cruger, during the remainder of his natural life, the one equal half part of the net income of all and singular her separate fortune and estate, both real and personal. There are two questions as to the validity of this instrument ; 1st. Whether Mrs. Cruger had the requisite power to transfer the interests which it purports to convey; and 2d. Whether it was made under circumstances to which a court of equity will give its sanction. The question as to Mrs. Cruger’s power over her property, so far as it relates to the efficacy of the instrument in question, I shall consider in reference, first, to the real estate, and second, to the personal estate.
The counsel for Mr. Cruger contended on the argument that the power of Mrs. Cruger to dispose of the income of her real estate was absolute, under the 87th section of the revised statutes relating to the nature and qualities of estates in real property, and their alienation. That section provides that “a special and beneficial power may be granted to a married woman to dispose during the marriage, and without the concurrence of her husband, of any estate less than a fee belonging to her in the lands to which the power relates.” The settlement gives to Mrs. Cruger the power to dispose of whatever it conveyed to trustees for her benefit, by deed or will, “ in all respects as if she were unmarried”—that simply unbinds the shackles of matrimony as to her rights over the property, but clearly gives her no power in addition to those which she would have possessed had she been a feme sole. Those rights were conferred by a deed in trust, and must of course depend upon its validity. The vice chancellor considers the trust valid under the 3d subdivision of the 55th section of the statute relative to uses and trusts, which provides that an express trust may be created to' receive the rents and profits of lands, and apply them to the use of any person, during the life of such person, or for any shorter term, subject to the rules prescribed in the first article of the title. This, if the construction be correct—and, so far as the interests of these parties in the cause are involved, it is res judicata—necessarily subjects the interest [266]*266and power of Mrs. Cruger to the provisions of the 63d section of the same statute, which declares that “no person beneficially interested in a trust for the receipt of the rents and profits of lands can assign or in any manner dispose of such interest.” This was intended to prevent the many evils arising from the anticipation and premature conveyance, of such rents and profits, and most assuredly is as essential to protect the interests of married women, as of any other persons. The vice chancellor supports the conveyance of the rents and profits in this case, on the ground that the receipt of such income by the husband may be for the use of the wife. That may be or may not be so. An order to receive the rents and profits, such as was granted by Mrs. Cruger shortly after the marriage, might be of that character, because she might continue it so long as he should devote such income faithfully to the mutual benefit, and revoke it when he should squander the property for other purposes. But an irrevocable transfer of the income to him during life could never be considered in the same light. It would enable the husband, unless prevented by a court of equity, to abstract every cent of it from the use of the wife, and in effect to contravene the main object of the instrument, which was to place the income of the property under her sole control, as essential for her use and benefit. I conceive, therefore, that Mrs. Cruger’s deed to her husband of the 19th November, 1841, did not confer on him any right to receive any part of the future rents and profits of the real estate.
The next question is whether, as the vice chancellor supposes, the income of the personal estate is placed by another section of the statute upon a similar footing, and subjected to the like rules. The provision of the revised statutes relied on by the learned judge, and also by Chancellor Walworth in Clute v. Bool, (8 Paige's Rep. 83,) is contained in the 2d section of title 4 in chapter 4 of part 2 of the revised statutes, which declares that limitations of future or contingent interests in personal property shall be subject to the rules prescribed in the first chapter of the act in relation to future estates in land. The chancellor thinks that the 36th section of the article rela[267]*267tive to the creation and division of estates, constitutes the right to receive the rents and profits of land at any future period a future estate. With great deference I cannot agree with him in his construction of that section. It provides that “ dispositions of the rents and profits of land to accrue and be received at any time subsequent to the execution of the instrument creating such disposition, shall be governed by the rules established in this article in relation to future estates in lands.” Now this does not declare, directly or by implication, that such dispositions shall be deemed future estates. The statute could not have consistently done so after having defined, as it does in the 10th section of the same act, a future estate as “ an estate limited to commence in possession at a future day.” The right to receive the rents and profits, in this case, commenced at the instant when the instrument creating it was delivered, and was clearly an estate in possession, within the meaning of the 8th section of the same act. The 36th section merely declares that dispositions of the rents and profits of real estate shall be governed by the rules applicable to future estates, not that they shall be deemed future estates. If it had designed to constitute them future estates it would have said so in direct terms. The provision that they should be governed by the same rules would then have been unnecessary. Besides, upon every sound principle of construction, a reference to a term used in a statute must be in its direct and primary sense, as expressly defined, and not in an assimilated interpretation. And that rule is more especially applicable when, as in this case, the express meaning will accomplish all that was designed by the framers of the law.
It is not however absolutely necessary to decide the question as to the alienability of the income of personal property, in the view which I take of this case. Mrs. Cruger’s interest in her personal property was neither “ future nor contingent.” She had the absolute right of disposal of both principal and interest. As there is nothing in the trust deed of settlement providing for the accumulation of the income, or suspending the absolute ownership beyond the period of two lives in being, it nowhere [268]*268militates against any provision of the revised statutes, and is valid by the rules of the common law. The absolute right of disposal gave her the power to convey the principal, or the income only, or any part of either. The conveyance of the 19th of November, 1841, was therefore, so far as it relates to the income of the personal estate, authorized by the terms of the post-nuptial settlement.
The counsel for Mr. Cruger contended that, assuming the income of the real estate to be beyond the disposal of Mrs. Cruger, this court should divide the whole, by giving the husband the income of the personal estate which is disposable, or so much thereof as will equalize the whole between the parties, as the same stood on the 19th of November, 1841. I was at first strongly inclined against this position, considering the conveyance to be of the half of two distinct subjects; the rents and profits of the real estate and the income of the personal property. But on examining the deed of November, 1841, more thoroughly than I could on the argument, I am inclined to think that it conveys the half of the whole income, as one subject matter, and that if Mrs. Cruger had the power to convey so much of her income, come from what source it may, the instrument shall operate upon that part of it. I am the more inclined to adopt this construction, as it will the best effectuate the intention of the parties at the time when the transaction took place. If therefore the instrument is free from other objections, it must be adjudged to convey to Mr. Cruger the income arising from the personal estate, to the extent of one-half of the net income of her whole estate, real and personal, and no more.
It was settled in the case of Jaques v. The Methodist Episcopal Church, (17 John. Rep. 548,) that a feme covert having a separate estate subject to her own disposal, may give it to her husband as well as to any other person, if her disposition of it be free and not the result oí flattery or force, or improper treatment. The remaining questions in this case are whether the conveyance by Mrs. Cruger was made under circumstances which bring it' within the rule laid down in that case. [269]*269These are questions principally of fact, depending upon a great mass of evidence which the parties have thought proper to spread before our judicial tribunals, and measurably before the public. Much of the evidence is irrelevant, and its examination and consideration' have thrown an unnecessary burthen upon the court. I have perused the whole of it, and after much consideration have come substantially to the same conclusions with the vice chancellor. The able exposition of the circumstances, made by that learned judge, saves me the necessity of stating any thing more than the conclusions which I have adopted.
It is certainly favorable to the instrument in question that it contained a reasonable disposition of the income of Mrs. Cruger’s estate. She retained enough to satisfy all her real wants, and to ensure to her all the enjoyments and comforts of life, so far as they depend upon property. If she had more it might have either enabled her to procure a greater quantity of luxuries, or to add to an estate already sufficiently large. It could not have been considered an abuse of her power, to devote a portion of her income, what she could certainly conveniently spare, to promote the welfare and advance the interests of one whom she had solemnly promised to love, honor and obey.
Mr. Cruger seems to have supposed, at first, that his wife should have given him, irrevocably, the control and disposal of her whole income. This impression may have been created, or at any rate was strengthened, by his construction of the order given in his favor shortly after his marriage. But in this he was clearly wrong. All the property was originally hers, and she had a right, and might well have considered it a duty which she owed to herself, to retain for herself and at her own disposal, sufficient to insure to her the necessaries and comforts of life, free from the power and responsibilities of her husband. But whatever may have been his sentiments at the time of his marriage, and for some time afterwards, he eventually adopted an opinion which was, I think, under the circumstances, far from being unreasonable. He thought that it would be derogatory to him, and deservedly lessen him in the esteem of his fel[270]*270low men, to be entirely dependent upon his wife even for his means of subsistence, during their joint lives, and to be liable to be left destitute at her death, should he survive her, and possibly when an old man, of all that might render life comfortable, and become the most miserable of paupers—one who had been habituated to luxurious living, and been reduced in his old age to penury and want. He preferred to all this, to pursue an honorable profession which he had adopted before his marriage, and to support himself in a manner suited to his own circumstances; and as they would not enable him to maintain a style correspondent with the income of his wife, he offered to share his more moderate means with her. In all this I think he was right; and if he endeavored by his own reasoning and the persuasion of her friends to prevail upon his wife to coincide with him in these sentiments and to act accordingly, I cannot see that he was wrong in his endeavors, or that she acted unwisely in yielding to them. If by the term “ free,” as used in Jaques v. The Methodist Episcopal Church, it is meant that the act of the wife should be spontaneous, the conveyance in question would not come within the principle laid down in that case. So far from adopting that instrument through the unaided impulses of her own mind, she evidently acted in opposition to sentiments which she had long cherished. But I conceive that the disposition of her income was free, within the principle, if she eventually acted through the deliberate convictions of her own mind; whether produced by her own reflections, or the suggestions and advice of her friends.
The deed was not obtained by the flattery of the husband. His expressions of regard for his wife and respect for her character were strong, but evinced nothing beyond the feelings and sentiments which a good husband should entertain for his wife. Nothing like force is alleged. Indeed it is very evident that Mrs. Cruger would never have yielded to compulsion, physical or moral. She evidently yielded, at the tizne when she executed the conveyance for the whole of her income, to a momentary vexation caused probably by what she considered as the importunities of her friends. But she took immediate and strong [271]*271measures to coerce the cancellation of that instrument, and succeeded. The deed for half her income seems to have been the result of her deliberations in her calmer moments.
It does not appear that Mr. Cruger resorted to his personal friends to induce his wife to make any disposition in his favor. He said in his letter to Mr. Bard, of August 6,1836, that he was opposed to the selection of any of his friends or relatives to effect a settlement of his difficulties with Mrs. Cruger. Mr. Monroe says that Cruger always expressed his willingness to leave the whole to Mrs. Cruger and her friends. Mr. Monroe and Mr. Whetten, both of whom have been censured for their interference, swear that they were not selected by Cruger, nor requested by him to act in his behalf. Mr. Bard was the only relative of. Cruger who gave any advice to Mrs. Cruger to make any settlement in his favor. The conduct of that gentleman was highly honorable throughout; and it is creditable to Mr. Cruger to have selected so worthy a man to settle their family difficulties.
Mrs. Cruger seems to have supposed that some of her nearest relatives preferred the interests of her husband to her own; but I can see no sufficient reason for the supposition. Her sister, Mrs. Monroe, who strongly advised, and was principally instrumental in effecting the settlement, says in her letter of August 6, 1836, “ I cannot say half I feel, only, dear sister, remember you are always placed right in the middle of my heart.” These are strong expressions, but the conduct of this lady, notwithstanding their subsequent disputes, evinces that they were sincere. Mr. Monroe exhibits much of the vivacity of the soldier. He was occasionally angry with his sister-in-law for not following his advice, or for some hasty expression of hers, but soon recovered his equanimity, and gave her very good, and I have no doubt sincere, advice. Mr. Whetten seems to have deservedly enjoyed much of Mrs. Cruger’s confidence; but he became dissatisfied when the award made by him and his associates, and their disinterested advice, were totally disregarded. All of these friends, and others, counselled Mrs. Cruger to make the settlement in question upon her husband. She was eventually induced, and I think solely by the advice of her friends, to adopt [272]*272that course. If she afterwards' distrusted them for giving helad vice to act contrary to her own opinions, that would not impeach the transaction, nor affect the validity of the conveyance. It is certainly a circumstance in favor of the deed of November, 1841, that it was drawn by Mrs. Cruger’s counsel, and delivered through his hands. This gentleman enjoyed so much of her confidence that he was selected by her as her friend to act with Mr. Bard in settling difficulties with her husband. From the high character ascribed to him by the counsel for both parties, (I need scarcely say much to my own gratification,) it cannot be supposed that he would aid in effecting an unreasonable settlement.
The deed in question seems to me to be reasonable in its terms. It was the result of an arrangement made through the advice of Mrs. Cruger’s nearest relatives and friends; was drawn by her counsel; was executed pursuant to what appeared to be her convictions of right at the time ; and was acknowledged by her to be her free act and deed, without any fear or compulsion of her husband. And there was no fraud or imposition practised upon her by him, or with his knowledge, or by his procurement, or at all. There is nothing in the case which calls upon us’ to set it aside.
It will, I think, be proper to charge Mr. Cruger with the interest on the loans to his relatives, whether received or not. They were doubtless made at his suggestion, and as favors to him, although they received the assent of his wife. If they are well secured he will not be the sufferer; if otherwise it is reasonable that the loss of the income should fall upon him. The decree of the vice chancellor must be modified so far as to make it correspond with the views which I have expressed. In other respects it must be substantially affirmed. We shall not award costs against either party.