Ellsworth, J.
The plaintiff claims title, by the levy of an execution against Albert Smith, the husband of Lucy II. Smith. Smith and his wife conveyed away the land to a trustee for her sole and exclusive use, at a time, prior to the piaintiff’s levy. The validity of this deed the defendants deny, claiming that it is not founded in an adequate consideration, notwithstanding the agreement between Smith and his wife. They insist, that the husband had a life estate by cur-tesy initiate, which he could not give away, to the prejudice of his creditors, and which, therefore, the plaintiff has taken on execution.
We have no doubt, that, by the will of Mr. Tracy, the portion given to Mrs. Smith, is given in trust. It is not the case of a mere power in the persons who are expected to act as trustees, as has been contended ; but a case of trust, accompanied with power to sell, to re-invest, &c.
If the trust left the equitable interest in Mrs. Smith, without any further direction, Mr. Smith might take and hold by curtesy initiate : for the husband has cuitesy in an equitable, as much as in a legal estate, belonging to the wife. But this will goes further. It gives to the wife her portion in trust for her sole and exclusive use, as we understand the will ; and therefore, until she does some act to put an end to her separate title, the estate will continue to be hers in equity ; and wherever the title may be, for the time being, it will be made subservient to the trust; nor will there be any real interest in the husband, which can be taken by his creditors.
The testator, after giving certain legacies, directs his es- [282]*282, tate to be divided into six parts. One part is given to Mrs. -Smith, by her married name, “ to be for her own and sole . useand further on in the will, he says, the trustees shall “receive and hold the aforesaid portions, (including other daughters’,) with power to sell and convey the same, and invest the avails in other property for the sole use of the heirs ; and the income and revenue they shall receive and pay over, as often as is convenient, to said child or children, and take receipts of my sons and my daughters therefor.” This is in substance the language of the will. Now, how can Mrs. Smith have the sole use and benefit of her father’s bounty, if her husband, or his creditors, can take it from her? How can the trustees sell and convey it away, and re-invest the avails, and pay the income to Mrs. Smith, from time to time ? And they are to have her individual receipt.
The cases in the books, showing the construction of such language as we have here, leave no doubt, that the daughters of the testator took their shares, to their sole and exclusive use. The general rule is thus laid down, by Clancy, in his treatise of Husband and Wife, p. 262. “ But although equity so far qualifies the law, as to permit a feme covert to take and enjoy property to her separate use, when it is given to her with that intent; yet such a trust should be very distinctly expressed, before the court will establish it against the rights of the husband. • It seems, however, to be immaterial in what form of phrase a trust of that nature is described : technical language is not necessary, as all that is required, is, that the intention of the gift should appear manifestly to be for the wife’s separate enjoyment. Such a claim on the part of a married woman, being against common right, the instrument under which it is made, must clearly speak the donor’s intention to bar the husband, else it cannot be allowed. It will appear from the cases, that the strongest evidence of intended generosity and of bounty towards the wife, will not be sufficient to give her a separate estate, unless, in addition, language be used, by the donor, clearly expressing the exclusion of the husband, or else directions be given with respect to the enjoyment of the gift wholly incompatible with any dominion by the husband.” The words to the “ sole and separate use of the wife,” have always been held sufficient to create in her an exclusive estate. In Kirk v. Paulin, 7 Vin. [283]*283Abr, 95. the words “ to be at her disposal,’’ were held to be sufficient. So in Tyrrell v. Hope, 2 Atk. 558., the words “ 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,” were held sufficient. Lord Hardwicke said, that the will could bear no other construction, although the words “ separate use,” were not to be found in it; for, he remarks, to what end should she receive the rents and profits, if they become the property of the husband, the next moment; and he added, that the word “ enjoy” was very strong to imply separate use. So in Darley v. Darley, 3 Atk. 399. the same judge states it to be his opinion, that if an estate be given to a husband “for the livelihood of his wife,” this ought to be considered a trust for the exclusive use of the wife. So in Woodman v. Horsley, cited 3 Bro. Ch. Ca. 383., the words “the wife’s receipt shall be a sufficient discharge, notwithstanding her coverture,” were held to have the same meaning. So in Lee v. Prieaux, 3 Bro. Ch. Ca. 381., the words “ that her receipt should be a sufficient discharge to the executors,” without the addition of the words a notwithstanding her coverture,” were held to be equivalent to saying “ to her sole and separate use.” In Dixon v, Olmius, 2 Cox’s R. 414., the testator directed, “that the said bonds and mortgages be delivered up to my said niece, Lady Waltham, whenever she shall demand or require the same ; and it was held, by Lord Loughborough, that as the securities were to be given to Lady Waltham, on her demand, Lord Waltham could not have obtained them from the executors, without a demand made by her, which gave her a dominion over them ; and they must therefore be considered as given to her separate use.
The appointment of trustees for the use of a married woman, furnishes no decisive evidence that the donor intended the gift should be to her separate and exclusive use. This was held, by the Master of the Rolls, in Lumb v. Milnes, 5 Ves. 517.
There has been some contrariety as to the construction and effect of certain words, but none as to such words and provisions as are found in Mr. Tracy’s will. You may see Kirk v. Paulin, 7 Vin. Abr. 96. Roberts v. Spicer, 5 Mad. 491. Pritchard v. Ames, 1 Turn. 222. Palmer v. Trevor, 1 Vern. [284]*284261. Brown v. Clark, 3 Ves. 186. Lumb v. Milnes, 5 Ves. 517. Jacobs and Wife v. Amyatt, 1 Mad. 376. note. Hartley v. Hurle, 5 Ves. 540.
If we are correct in so construing the will of Mr. Tracy, as to give to Mrs. Smith her portion for her sole and separate use, the next question is, has she done anything to put an end to her title ? Has she conferred on her husband a legal title? For without a legal title, derived through the husband, to the plaintiff, it is certain the plaintiff cannot recover in this action.
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Ellsworth, J.
The plaintiff claims title, by the levy of an execution against Albert Smith, the husband of Lucy II. Smith. Smith and his wife conveyed away the land to a trustee for her sole and exclusive use, at a time, prior to the piaintiff’s levy. The validity of this deed the defendants deny, claiming that it is not founded in an adequate consideration, notwithstanding the agreement between Smith and his wife. They insist, that the husband had a life estate by cur-tesy initiate, which he could not give away, to the prejudice of his creditors, and which, therefore, the plaintiff has taken on execution.
We have no doubt, that, by the will of Mr. Tracy, the portion given to Mrs. Smith, is given in trust. It is not the case of a mere power in the persons who are expected to act as trustees, as has been contended ; but a case of trust, accompanied with power to sell, to re-invest, &c.
If the trust left the equitable interest in Mrs. Smith, without any further direction, Mr. Smith might take and hold by curtesy initiate : for the husband has cuitesy in an equitable, as much as in a legal estate, belonging to the wife. But this will goes further. It gives to the wife her portion in trust for her sole and exclusive use, as we understand the will ; and therefore, until she does some act to put an end to her separate title, the estate will continue to be hers in equity ; and wherever the title may be, for the time being, it will be made subservient to the trust; nor will there be any real interest in the husband, which can be taken by his creditors.
The testator, after giving certain legacies, directs his es- [282]*282, tate to be divided into six parts. One part is given to Mrs. -Smith, by her married name, “ to be for her own and sole . useand further on in the will, he says, the trustees shall “receive and hold the aforesaid portions, (including other daughters’,) with power to sell and convey the same, and invest the avails in other property for the sole use of the heirs ; and the income and revenue they shall receive and pay over, as often as is convenient, to said child or children, and take receipts of my sons and my daughters therefor.” This is in substance the language of the will. Now, how can Mrs. Smith have the sole use and benefit of her father’s bounty, if her husband, or his creditors, can take it from her? How can the trustees sell and convey it away, and re-invest the avails, and pay the income to Mrs. Smith, from time to time ? And they are to have her individual receipt.
The cases in the books, showing the construction of such language as we have here, leave no doubt, that the daughters of the testator took their shares, to their sole and exclusive use. The general rule is thus laid down, by Clancy, in his treatise of Husband and Wife, p. 262. “ But although equity so far qualifies the law, as to permit a feme covert to take and enjoy property to her separate use, when it is given to her with that intent; yet such a trust should be very distinctly expressed, before the court will establish it against the rights of the husband. • It seems, however, to be immaterial in what form of phrase a trust of that nature is described : technical language is not necessary, as all that is required, is, that the intention of the gift should appear manifestly to be for the wife’s separate enjoyment. Such a claim on the part of a married woman, being against common right, the instrument under which it is made, must clearly speak the donor’s intention to bar the husband, else it cannot be allowed. It will appear from the cases, that the strongest evidence of intended generosity and of bounty towards the wife, will not be sufficient to give her a separate estate, unless, in addition, language be used, by the donor, clearly expressing the exclusion of the husband, or else directions be given with respect to the enjoyment of the gift wholly incompatible with any dominion by the husband.” The words to the “ sole and separate use of the wife,” have always been held sufficient to create in her an exclusive estate. In Kirk v. Paulin, 7 Vin. [283]*283Abr, 95. the words “ to be at her disposal,’’ were held to be sufficient. So in Tyrrell v. Hope, 2 Atk. 558., the words “ 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,” were held sufficient. Lord Hardwicke said, that the will could bear no other construction, although the words “ separate use,” were not to be found in it; for, he remarks, to what end should she receive the rents and profits, if they become the property of the husband, the next moment; and he added, that the word “ enjoy” was very strong to imply separate use. So in Darley v. Darley, 3 Atk. 399. the same judge states it to be his opinion, that if an estate be given to a husband “for the livelihood of his wife,” this ought to be considered a trust for the exclusive use of the wife. So in Woodman v. Horsley, cited 3 Bro. Ch. Ca. 383., the words “the wife’s receipt shall be a sufficient discharge, notwithstanding her coverture,” were held to have the same meaning. So in Lee v. Prieaux, 3 Bro. Ch. Ca. 381., the words “ that her receipt should be a sufficient discharge to the executors,” without the addition of the words a notwithstanding her coverture,” were held to be equivalent to saying “ to her sole and separate use.” In Dixon v, Olmius, 2 Cox’s R. 414., the testator directed, “that the said bonds and mortgages be delivered up to my said niece, Lady Waltham, whenever she shall demand or require the same ; and it was held, by Lord Loughborough, that as the securities were to be given to Lady Waltham, on her demand, Lord Waltham could not have obtained them from the executors, without a demand made by her, which gave her a dominion over them ; and they must therefore be considered as given to her separate use.
The appointment of trustees for the use of a married woman, furnishes no decisive evidence that the donor intended the gift should be to her separate and exclusive use. This was held, by the Master of the Rolls, in Lumb v. Milnes, 5 Ves. 517.
There has been some contrariety as to the construction and effect of certain words, but none as to such words and provisions as are found in Mr. Tracy’s will. You may see Kirk v. Paulin, 7 Vin. Abr. 96. Roberts v. Spicer, 5 Mad. 491. Pritchard v. Ames, 1 Turn. 222. Palmer v. Trevor, 1 Vern. [284]*284261. Brown v. Clark, 3 Ves. 186. Lumb v. Milnes, 5 Ves. 517. Jacobs and Wife v. Amyatt, 1 Mad. 376. note. Hartley v. Hurle, 5 Ves. 540.
If we are correct in so construing the will of Mr. Tracy, as to give to Mrs. Smith her portion for her sole and separate use, the next question is, has she done anything to put an end to her title ? Has she conferred on her husband a legal title? For without a legal title, derived through the husband, to the plaintiff, it is certain the plaintiff cannot recover in this action. She has done nothing of the kind, unless such is the effect of her uniting with her husband and others, in applying to the court of probate for a partition of the estate. It is quite certain this partition is not made under, nor according to, the provisions of the codicil; nor is it, by any means clear, that it has any effect as a division under the provisions of the body of the will ; for one of the children of Mr. Tracy was a minor, and not qualified to do a legal act; though possibly this is not necessary, as it may be said, the power to act is given to the children as they are. However this may be, we do not think Mrs. Smith has, in fact, changed, or designed to change, the character of her property. She might be willing to have the estate divided and settled; but it by no means follows, that she has given up her sole and exclusive property. This would require a clear intention, and an unambiguous act. We see nothing of the kind in the proceedings in probate ; but rather a contrary intention, proved by the agreement between Mr. and Mrs. Smith, at the time of the partition. This is precisely the effect we attach to the agreement. It was a part of the res gestee ; a clear expression of hers, not to give up her property to her husband. We do not so much regard the agreement as a valid executory contract between husband and wife, (as such a contract may be obnoxious to the doctrine of Hutton v. Dibble, 1 Day, 221., which decision we do not intend to impugn,) as we do an expression accompanying and constituting a part of the transaction itself.
If then, Mrs. Smith has not done any act to change her right to her property, why was not the deed, which is now assailed as voluntary and fraudulent against creditors, just and legal, and in furtherance of the donor’s intention ? If the law has thrown the legal title upon Smith, because he married [285]*285the heir of Mr. Tracy, then the same title properly passed from him, by said deed, which was given before the levy of the plaintiff’s execution.
This view of the case renders it unnecessary to examine many of the questions discussed at the bar: as what is the effect of a contract between husband and wife; did the trustees ever take, and do they now hold, the legal title ; whether there has been a partition of the estate under the will; and if so, what effect this had in vesting an interest in Mi-. Smith, by curtesy initiate, which creditors could take. These questions become unimportant, if Mrs. Smith, at first, took, and still has, an interest, which is sole and exclusive in her, as we have decided.
In this opinion the other Judges concurred.
New trial not to be granted.