Opinion,
Me. Justice Clark :
The facts of this case, as they are stated in the paper-books, are, substantially, as follows: The last will and testament of Francis Funk, deceased, was executed May 27,1872 ; at that [450] time, he had a wife; two sons, Francis and Frederick; a married daughter, Mrs. Fourgeray, and an unmarried daughter, Mary U. Funk, the appellee. ■ A. J. Quin, who was a lieutenant in the British army until 1873, in that year visited this country, and then first made the acquaintance of Mary U. Funk, who became his wife in 1875.
Francis Funk, the testator, did not die until September 6, 1886; his wife and his son Francis died some years before. He left to survive him, therefore, only one son and the two daughters before mentioned. By his last will and testament, already referred to, he first provided for the payment of his debts and funeral expenses, and gave the residue of his estate to his executors, in trust: first, to pay the net income of the whole of his estate to his wife during widowhood, for the support of herself and daughter Mary U. as long as she remained single, provided she assisted her mother; and for the education and maintenance of the two sons until they became self-supporting ; second, at the termination of the widowhood of his wife, (a) to expend so much as might be necessary for the education and maintenance of his two sons until they became self-supporting; (5) to pay to Mary U. one fourth of the net income of the estate so long as she remains unmarried; (e) to pay to his daughter Ella Z. Fourgeray the unexpended balance of the income, provided it did not exceed one fourth of the whole income. Then follows this clause :
“ And, in case of the marriage of my said daughter Mary, then, from that time, to pay over unto each of my said daughters an equal half part of the income which may remain after the necessary amounts expended for the education and support of my said sons: provided, however, that the income to be paid to each one of my said daughters shall not exceed one fourth part of the whole net income of my estate; and provided, also, that the same shall not in any wise be subject to the control of their respective husbands, or be in any way or manner liable for their debts. And from and after the time that my youngest child has completed his education, and is also able to maintain himself, then in trust to pay over unto each of my children an-equal portion of the income of my estate, until such youngest child shall attain his twenty-first year of age; whereupon I order my estate to be divided into four equal parts, each of said [451] parts to contain, as near as may be, an equal fourth part of eaoh kind of investment forming a part of my estate. Each of my children shall receive thereafter, annually, the interest arising from one of said equal parts, but as each of my daughters completes her thirtieth year, and each of my sons completes his twenty-fifth year, they shall respectively have paid to them the principal of her or his respective share of my estate, the principal of the shares of my said daughters to be so conveyed or secured to them that the same shall be free from the control of their husbands, and not to be liable to their debts.”
In case either of his children should die leaving no child to survive, that share was to go to the surviving children under the will.
Upon the adjudication of the account of the executors of Francis Funk, the estate was divided into three parts, one of which was awarded to the surviving son, he then being over twenty-five years of age ; and the shares of the daughters were awarded to the trustee to be appointed for them under the will, both being over thirty years of age. Upon their petition the Real Estate Trust Company of Philadelphia was appointed trustee for each daughter, and received each of their shares thus awarded for their benefit. Mrs. Fourgeray’s husband having since then died, the Orphans’ Court declared the trust at an end, and awarded to her the capital of her trust-estate, and it has been paid to her. The Real Estate Trust Company having filed an account in the Orphans Court, Mrs. Quin contended that, as at the execution of the will she was neither a married woman nor in immediate contemplation of marriage, the trust as to her was executed, and she was entitled to have the fund awarded to her absolutely, free from any control or claim on the part of the trustee. The Orphans’ Court accepted this view of the case, and awarded the fund to Mrs. Quin.
It is conceded that Mrs. Quin, at the time of the making of the will, was a single woman, and that the marriage relation which was subsequently formed was not then in contemplation; but it is contended on the part of the appellant that, as she was a married woman when the will took effect at the death of her father, in 1886, the trust for her separate use was operative and effectual for the purposes set forth in the will, and that the trust should have been sustained. This is the only [452] question for our consideration; and it is admitted by the appellant that, if Neale’s App., 104 Pa. 214, was rightly decided, it governs this case, for the question involved in the case at bar was there clearly decided.
The rules of equity which govern in the creation of a separate use, and which define its nature and effect in Pennsylvania, are and always have been widely different from those which prevail in England and in many of the states. It was at first decided in Massey v. Parker, 2 Myl. & K. 174, that a separate use created for the benefit of a single woman would not, upon her marriage, debar her husband from his marital rights; but subsequently, in Tullett v. Armstrong, 4 Myl. & C. 377, a different doctrine was declared. It was there held that a valid separate use could be created for the benefit of a single woman, which would come into operation at her marriage whenever it should occur; and, further, that, if the exclusion of any future husband was in contemplation, this intention would be carried into effect, but, if the separate use was intended to be confined to a particular marriage, a second husband would not be excluded from his marital rights. The question in each case under the English rule is, what was the intention of the settlement or will? Lewin on Trusts, 758. Under the English rule, if the feme sole chooses to make any disposition of the property before coverture, she may do so. She has the option of determining the trust at any time before coverture; but, if she does not, it will attach on the first or any subsequent marriage, according to the terms of the will or other mode of settlement. And even after coverture, unless her power of anticipation be restrained, the feme covert may, in general, deal with the property precisely as if she were feme sole. “ A feme covert, acting with respect to her separate property,” says Lord Thublow in Hulme v. Tenant, 1 Brown C. C. 20, “is competent to act in all respects as if she were a feme sole.” Upon this ground, it has been determined that if, without any direct or express reference to her separate property, a feme covert, who has property settled to her separate use, professes to bind herself by any written instrument, the implication of law is that she meant to charge her separate estate, for, except with reference to that, the instrument was without meaning and nugatory. Thus, if a feme covert execute a bond, [453] even to her husband, or join in a bond with another, even with her husband, or sign a promissory note or bill of exchange, or give a guaranty, though she is not personally bound, yet her separate estate, if anticipation be not restrained, is - liable: Lewin on Trusts, 942. She is liable, also, through her separate estate, for any general engagement made with reference to and upon the faith or credit of that state: Idem, 761-767. But in Pennsylvania, Rhode Island, North and South Carolina, and in others of the states, following the case of Massey v. Parker, supra, a different doctrine has been declared. In this state, a separate use can only be created for the benefit of a woman actually married, or in immediate contemplation of marriage; and, although effectual as respects the first marriage, it will not revive for her protection under a second marriage: Wells v. McCall, 64 Pa. 207; Yarnall’s App., 70 Pa. 239; Snyder’s App., 92 Pa. 504. It is equally well settled, in this state, that a feme covert has only those powers over her separate estate, which are actually and expressly conferred by the settlement or will: Lancaster v. Dolan, 1 R. 236.
It must be observed that the general doctrine upon which this separate estate of the wife rests in this state and the other states named, is essentially different from that prevailing in England. It is peculiar; its peculiarity, as we said in MacConnell v. Lindsay, 131 Pa. 476, being founded on the particular purpose intended to be accomplished. In England and in many of the states, the rule, as we have said, is to treat the wife as tbe absolute owner, possessing the jus disponendi and the incidental power of charging the estate with her debts, as if she were a feme sole; whereas in Pennsylvania, this estate in equity was intended, through her disabilities, to protect the feme covert not only from her own improvidence, but also from the improvidence and importunity of her husband. As early as 1829, in the case of Lancaster v. Dolan, 1 R. 231, it was distinctly held that a feme covert is, in respect to her separate estate, to be deemed a feme sole only to the extent of the powers clearly given by the instrument by which the estate is settled, and that she had no right of disposition beyond that. “ Instead of holding the wife to be a feme sole to all intents as regards her separate estate,” says Chief Justice Gibson in that case, “ she ought to be deemed so only to the extent of the [454] powers clearly given in tbe conveyance; and that, instead of maintaining that she has an absolute right of disposition unless she is expressly restrained, the converse of the proposition ought to be established, that she has no power but what is expressly given.” This case was followed by Thomas v. Folwell, 2 Wh. 11, where it was declared to be the settled law of Pennsylvania that a married woman possesses no power, in respect of her separate estate, but what is positively given or reserved to her in the instrument by which the trust is created. That this was an intentional departure from the known English rule, is apparent from the language of Chief Justice Gibson, who, in delivering the opinion of the court, said: “ Why is a settlement ever made? Certainly to exclude the husband’s control. But, to exclude his direct control, which consists in the exercise of legal power, and yet leave him the means of giving the effect to indirect control, which consists in the exercise of personal influence, is to do nothing. We daily see the incompatibility of the wife’s protection with the qualified power of alienation given her by our statutes; and the English chancery reports show that the same mischief has ensued from the alienations allowed her under deeds of settlement, by reason of which what would otherwise have kept the wolf from the door has been wasted or pirated by the husband. We therefore hold it to be the settled law of Pennsylvania that, instead of her having every power for which she is not negatively debarred in the conveyance, she shall be deemed to have none except what is positively given or reserved to her.” The rule declared in Lancaster v. Dolan has been steadily adhered to in a long line of cases ; too long to justify a reference to all of them here. The following cases, however, may be cited: Dorrance v. Scott, 8 Wh. 816; Wallace v. Coston, 9 Wh. 137; Stahl v. Crouse, 1 Pa. 111; Rogers v. Smith, 4 Pa. 93; Penna. Co. v. Foster, 35 Pa. 134; Wright v. Brown, 44 Pa. 224; McMullin v. Beatty, 56 Pa. 389; MacConnell v. Lindsay, 131 Pa. 476. If anything in the law may be regarded as settled, it is that a feme covert, as to her separate estate, has no power of disposition beyond what is conferred upon her in the instrument creating the trust.
In Maurer’s App., 86 Pa. 380, a case involving this precise question, Mr. Justice Shauswoob says: “ It is too late to shake [455] the authority of Lancaster v. Dolan, 1 R. 282. Whether the decision in that case was right or wrong, it has been so often recognized and affirmed, since 1829, that it is now one of the most firmly established rules of practice in this state.”
But, as restraints upon alienation are repugnant to the general policy of the law, it became necessary to restrict the operation of the rule; in other words, the peculiarity of our system, as declared in Lancaster v. Dolan, called for a corresponding rule, confining its operation to a more restricted class of persons; for, if a separate estate might be settled upon every single woman, the free alienation of property and transmission of titles would thereby be most seriously embarrassed. Hence, in Smith v. Starr, 3 Wh. 62, it was held that, if a married woman having a separate estate becomes discovert, the restraints upon the disposal of the estate attaching during coverture cease to exist when she becomes sui juris. This case was followed by Hamersley v. Smith, 4 Wh. 126, where Chief Justice Gibson, in the opinion of the court, said: “ The point in contest was virtually decided in Massey v. Parker, 2 Myl. & K. 174, where it was settled that a restrictive settlement, by a gift to the separate use of an unmarried woman, is an impracticable one; and that it has no force to prevent her from giving the property to a husband by the act of marriage, or disposing of it in the interim.....Perhaps it is not easy to discern the policy of a rule which disables a benefactor from making a determinative provision for his beneficiary which cannot be squandered or reft from him; yet the law seems to be thus settled, not only by the cases cited, but by Newton v. Reid, 4 Sim. 141, and Woodmeston v. Walker, 2 Russ. & M. 197, in which the principle was applied to an unmarried woman. An apparent exception to it is a gift to the separate use of a woman in contemplation of her marriage with a particular person, which, by force of the agreement implied by his assent, constitutes a future separate use during the particular coverture, but which, in reality, is no exception at all......Admitting the soundness of the principle that there cannot bé a restraint which is repugnant to a gift, it is impossible to doubt the correctness of the decision in Massey v. Parker, which is in accordance with it. Now, the difference betwixt that case and the present is that here the feme was married at the time of the gift, and there [456] she was not; but the effect of it is only that she had in our case an unquestionable separate use during the first coverture.” These cases were followed and re-affirmed in Harrison v. Brolaskey, 20 Pa. 299; Steacy v. Rice, 27 Pa. 75; Bush’s App., 38 Pa. 85; McKee v. McKinley, 33 Pa. 92; Nice’s App., 50 Pa. 143; Freyvogle v. Hughes, 56 Pa. 228; Koenig’s App., 57 Pa. 352. The same rule obtains whether the exclusion of the husband’s marital rights refer to a particular marriage or to a second or any future marriage; for, it has been uniformly held, as intimated in. Plamersley v. Smith, supra, that a separate use can only be accorded for the benefit of a woman married, or in contemplation of marriage with a particular person; and certainly neither a married woman, nor one in contemplation of a particular marriage, could be supposed to have in view a second or other marriage.
The same doctrine is reasserted in McBride v. Smyth, 54 Pa. 245. Mr. Justice Strong says: “Whatever may be the rule in the English courts, it is too well settled to be disturbed by anything else than a legislative enactment, that a separate use for a woman cannot be created unless she is covert, or unless in immediate contemplation of her marriage; ” citing Potts’s App., 30 Pa. 168 ; Dubs v. Dubs, 31 Pa. 149. “We take it, therefore, as settled,” says Mr. Justice Agnew in Wells v. McCall, 64 Pa. 207, “ that the trust will be supported notwithstanding the cestui que trust is a feme sole at its creation, provided that it be done in immediate contemplation of marriage. This leads us to inquire what is meant by an immediate contemplation of marriage. Evidently the expression means in contemplation of an immediate marriage; one presently in view of the donor, and to take place in a short time after the instrument is to take effect; in contemplation of marriage with a particular person, says Gibson, C. J., in Hamersley v. Smith, supra. That the marriage must be in immediate view at the time of the creation of the trust, is proved by all the cases which decide that on the termination of the coverture the trust falls and is not revived by a second marriage; for, if any marriage would answer to the provision for the trust, a second would as well as the first. But a second marriage is evidently a thing not in immediate contemplation, being cut off from view by the uncertainties of a first marriage, the death [457] of the husband, and an intention to marry a second time.” To the same effect is Springer v. Arundel, 64 Pa. 218; Ogden’s App., 70 Pa. 501; MacConnell v. Lindsay, supra; and Kuntzleman’s Est., 136 Pa. 142.
So, also, in Snyder’s App., 92 Pa. 504, the testator made his will in December, 1870, and died a few days thereafter. The youngest daughter attained majority in August, 1878, which was the time fixed for the division of his estate. At this time one of the daughters was married and another betrothed; the other daughters remained single, and it was conceded that the will was inoperative to create any trust as to them. But, as to the married daughter and the daughter then contemplating marriage, it was contended the trust for their use then took effect. It was held, however, that, as none of the daughters were married or in contemplation of marriage at the creation of the trust, the separate use fell. The fact that one of them became covert or betrothed before the distribution of the estate was of no effect; the validity of the trust must be determined by the status of the woman at the time of the creation of the trust. “This appears,” said Mr. Justice Sterbett, “to be the utmost limit to which this court has gone iir favor of private right as against public policy, and it would, perhaps, be unwise to go any further. Trusts for coverture, either actual or in contemplation at the time of their creation, have some foundation in reason, which cannot apply to coverture in the more remote future. In the former, the testator is presumed to know the then existing or contemplated alliance, and has the data on which to base an intelligent judgment as to the propriety of creating a trust; whilst in the latter he can have nothing more than a bare possibility as a guide.” To the same effect is the reasoning in Philadelphia Trust Co.’s App., 93 Pa. 209.
Whatever may be the rule in equity elsewhere, there can be no question whatever as to the rule existing in this state. The doctrine here is, undoubtedly, that a separate use can only be created for the protection of a woman married or in immediate contemplation of marriage, which, of course, implies marriage with a particular person; for, how could a woman be said to be in immediate contemplation of marriage if she was not at the time contemplating marriage with some particular person? [458] The principles and policy which govern separate uses in Pennsylvania are so different from those prevailing in England that English authorities are inapplicable here, and the same may be said of authorities in many of the states.
The marriage must be in existence or in contemplation at the creation of the trust; and, although the trust does not take effect until the testator’s death, it is very plain that it is created and exists under and by virtue of the will. For, as Lord Mansfield said, in Harwood v. Goodright, Cowp. 90: “ A devise of lands is considered by our courts not so much in the nature of a testament as of a conveyance by way of appointment of particular lands to a particular devisee.” Upon that principle it was established that a man could devise those lands only which he had at the time of such conveyance, and no after-acquired lands would pass; whereas a testament would operate upon whatever personal estate a man died possessed of, whether acquired before or after the execution of the instrument: Williams on Exrs., 6. In Girard v. Philadelphia, 2 Wall. Jr. 305, Judge Gbieb. said: “ The reason why after-purchased lands do not pass by a will, even though the testator has expressed clearly his wish or intention that they should, is not because such a purchase is a revocation of the will, but because a will is in the nature of a conveyance or an appointment of a particular estate; and, consequently, the testator must have the power to dispose at the time the will is executed. He$ice, a devise of land, though it operates in future, can pass only such interest or estate as the testator had at the time and continued to have till his decease.” So, in our own case of Girard v. Philadelphia, 4 R. 335, it was held that real estate acquired after the making of a will did not pass under a devise of the residue of the testator’s real estate, without a subsequent republication of the will, even where the testator, in addition to the general devise of the residue, declares in a codicil that it is his wish and intention that all the real estate which he shall thereafter purchase should pass by the same will. The ratio decidendi was stated in part as follows: “ That a will is a species of conveyance, not strictly subject to the rules of conveyances at the common law it is true, the vesting of the estate being postponed till the death of the testator; yet operating, as regards his disposing power and capacity, by relation to the making of it, in [459] so much as to require his power over the estate to be perfect at the time, just as his capacity must be perfect at the time; it being settled that the want of a disposing mind and memory at the performance of the act of disposition, is not supplied by the restoration of it before the death, for the same reason that an intervening loss of it will not prejudice a disposition unexceptionable at the time; in other words, that the act of disposition must be complete in every respect at the performance of it.”
' Of course, the matter decided has long since been changed by the act of April 8,1833, P. L. 250, and by the more recent act of June 4,1879, P. L. 88; but the reasoning of the case is none the less applicable here on that account. If a will is executed in due form by a person of unsound mind, it will not be received for probate because he was subsequently restored to his right mind, and died without revoking it. The question is as to the testator’s capacity at the time of execution. Upon the same principle, the” legality of the execution of a will is to be judged of by the law as it stood at the time of its execution: Mullen v. McKelvy, 5 W. 399; Jack v. Shoenberger, 22 Pa. 416; Gable v. Daub, 40 Pa. 217 ; Camp v. Stark, 81* Pa. 235. So, also, the power or right of a person to make a will is determined by the law as it existed when the will was made, not as it was at the testator’s decease : Kurtz v. Saylor, 20 Pa. 205. In Martindale v. Warner, 15 Pa. 471, the will was made before the act of May 6,1844, P. L. 565, which provides against the lapse of legacies in certain cases, but the testator died after its passage. The will gave the residuary estate to the testator’s two sons, who died before the testator, each leaving children. In the opinion filed, the court said: “‘No devise or legacy hereafter made,’ is the phraseology of the act; thereby meaning, according to the usual acceptation of language, wills made and executed after the passage of the act. If they had designed otherwise, it would have been easy to express their meaning in plain and unambiguous terms. Though a will, it is true, does not take effect till after the testator’s death, yet it is inchoate, though not consummate, from the execution of it; and for many purposes in law, of which this is one, it relates to the time of the making of it.” It was accordingly held that the devise in favor of the residuary legatees lapsed. “ It is true that every will is ambulatory until the death of the testator, [460] and a disposition made by it does not actually take effect until then. General words apply to the property of which the testator died possessed, and he retains the power of revocation as long as he lives. The. act of bequeathing or devising, however, takes place when the will is executed, though to go into effect at a further time.” Upon this ground it was held in Taylor v. Mitchell, 57 Pa. 212, that, when a testator died in 1866, his will, executed in 1843, in the presence of a single subscribing witness, was sufficient to create a charitable use, notwithstanding the act of April 26, 1855, which requires two witnesses. To the same effect is Mullock v. Souder, 5 W. & S. 198. A will speaks for some purposes from the period of its execution, and for other purposes from the death of the testator; yet it never operates until the latter period: Hitchcock v. Hitchcock, 35 Pa. 393 ; Williams on Exrs., 972, 973. By the act of June 4, 1879, it is provided that “every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.” It has also been held that, where a testator bequeathed a certain portion of the residue of his estate to his “ legal and natural heirs,” the distribution was referable to the intestate laws, and as there could be no heirs to the living, the rights of the distributees were, of course, to be determined by the law existing at the testator’s death : Woods’ App., 18 Pa. 478; Dubs v. Dubs, 31 Pa. 151. But, as a general rule, the power or capacity of the testator to make the devises in question, the legality of the execution of the devises, and the nature and quantum of the estate are referable to the time and are determinative according to the law as it exists at the execution of the instrument.
In this state of thelaw,howwasitpossiblethatNeale’s Appeal could have been determined otherwise than it was ? It was not pretended in that case that Elwina Finlay, at the time of the making of the will of James E. Brown, deceased, was either married or in immediate contemplation of marriage. In fact she was but nine years of age, and did not marry for almost eight years thereafter. The trust which was created by the will, was at the time of the execution of the will, either valid or invalid, and-her subsequent marriage in the lifetime of the tes[461] tator could have no effect whatever to make it valid if before that it was invalid. The legality of the testator’s disposition of his estate must be determined as of the date of the will, although it does not go into effect until his death. It is of no consequence that the cestui que trust was married in the lifetime of the testator. If he desired to validate the devise, which, presumably, he knew to be invalid, he could have done so by changing, re-executing, or republishing the will, and his failure to do that is conclusive upon us that he did not wish to do so. If it is believed that the law should be otherwise, the appeal should be to the legislature. The rules prevailing in this state in reference to separate uses have become rules of property. To change them by judicial decision would unsettle many titles, and do much injustice for which no remedy could be applied. We are of opinion that Neale’s Appeal was rightly decided. The ruling in that case was simply the logical and inevitable conclusion to be drawn from the cases which preceded it; and, as Neale’s Appeal in all respects governs the decision of the case at bar,
The decree of the Orphans’ Court is affirmed, and the appeal dismissed at the cost of the appellant. •