Leaycraft v. Hedden

3 N.J. Eq. 512

• Court: New Jersey Court of Chancery
• Decided: January 15, 1845
• Status: Published

Opinion

The Chancellob.

By an ante-nuptial deed, dated May twenty-sixth, eighteen hundred and twenty, between the defendant. then Frances Susannah Watkins, of the one part, and Zadock Iledden, her intended husband,of another part, and Joseph Watkins Bostwick, of the third part; wherein it is recited, that the said Susannah and Zadock had mutually agreed that the said Zadock should not interfere or meddle with her present or future acquired property, whether real or personal; and that the said Susannah should be permitted to make what disposition of the said property she might choose; the said Zadock covenanted that he would not intermeddle with the then present or future acquired property, whether real or personal, of the said Susannah: and that she might have the absolute control over the said property, and dispose of the same by deed, will, or otherwise, at her pleasure. And the said Susannah, by and with the consent of the said Zadock, thereby released, assigned and transferred to the said Joseph Watkins Bostwick, his heirs and assigns, all her real and personal estate whatsoever, and wheresoever the same might be, in trust, to permit her, the said Susannah, to receive the rents and profits thereof to her own use, as the same should from time to time accrue and be receiv able, and to devise the same by any will or testament she might choose to make; and further in trust that the said Josepl should and would, at her request, convey the said estates and property to such further and other uses as she might by writing under her hand and seal, direct and appoint.

After the execution of the deed, the marriage was duly solemnized between the parties, then resident in this state.

On the first of May, eighteen hundred and thirty-seven, Robert M. Williams, the son-in-law of Mrs. Hedden, and who had before then become bar trustee under the ante-nuptial deed, by a declaration of trust, reciting that certain leasehold premises in the city of New-York had been conveyed to him, but the purchase money thereof paid by Mrs. Hedden, out of her separate estate held under the trust deed, declared that he held the said leasehold premises in trust for her, pursuant to the terms of the deed.

Previously to this time, Robert M. Williams had incumbered the premises by a mortgage executed to the complainant, on the first of June, eighteen hundred and thirty-five, for four-thousand five hundred dollars; and by another mortgage to the complainant, on the third of August, eighteen hundred and thirty-five, for one thousand dollars. In August, eighteen hundred and thirty-nine, the lease of the premises having expired, ' a new lease of the same was taken by the said Williams, by consent of Mrs. Hedden, and a new declaration of trust executed by him to her, declaring that he held them in trust for her, and without any individual interest in himself, reciting that the premises had for some years belonged to her, and were purchased out of her separate estate.

On the same day, by her appointment duly signed and sealed, reciting that Williams held the premises in trust for her, and that she was indebted to the complainant in the sum of five thousand five hundred dollars for money by him theretofore loaned to her, “ for the purpose of securing to the said Richard Leaycraft the repayment of the said sum of money, with the interest to grow due thereon,” she directed and empowered her trustee to execute to the complainant a bond for the said sum of money ; and as a further -security, to make, execute and deliver to the said Richard Leaycraft a mortgage upon the said premises. in pursuance of this appointment, Williams executed to tbe complainant tbe bond and mortgage now tbe subject of this controversy.

On the seventh of October, eighteen hundred and forty-one, the premises were sold under the mortgage last mentioned, pursuant to the statute of New-York, and bought by the complainant for three thousand dollars.

For the residue of the mortgage money, the complainant now files his bill and seeks to compel the payment of it by the defendant.

The husband of the defendant is deceased, the trust surrendered, and she alone is made party defendant.

In her answer, the defendant denies that the premises were purchased with her money, or that she ever borrowed any money of the complainant upon those premises. She denies that the first declaration of trust was made by reason of her having been the purchaser; but that Williams, having become indebted to her in the sum of one thousand dollars, for money lent by her to him, the first declaration was made to assign to her the leasehold property, to secure in whole or in part the money so lent to Williams; that the recitals therein were false and fraudulent, and unknown to her.

There is a conflict between the allegations of the answer and the testimony, upon this point, without entering into which, I deem it sufficient in settling the facts upon which the case must rest, to inquire into the validity of the last declaration of trust, and the power of appointment made simultaneously therewith.

The defendant admits that the new lease was made by her consent, and for her benefit, but by the advice and influence of the complainant and her son-in-law, Williams; and that the declaration of trust was also made with her consent, and-die deed of appointment executed by her ; but that the recitals therein were false, and unknown to her, she confiding in them and signing and accepting any paper that her trustee requested.

In reply to this, it is alleged and appears, that the declaration and appointment were drawn by Nicholas Dean, at the request of Mrs. Hedden, and subscribed by him as a witness, and according to his testimony, that no unfair means were used to procure her execution of the appointment; and that both papers were put on the record by him, at her request; but he does not remember whether they were read over to her or handed to her to read before execution.

The deed of appointment was acknowledged by the defendant, and the declaration of trust by Williams, before a commissioner of deeds, according to the statute of New-York, on the same day, the twenty-fifth of September, eighteen hundred and thirty-nine, and both placed upon the record at the same time.

It would hardly do to stamp this transaction with fraud, and to involve in its turpitude, the complainant, the scrivener and the trustee, who was the confidential friend and son-in-law of the defendant. They told her that the papers were correct and proper to carry out the arrangement to which she had agreed, and from which she was to derive a benefit; and they unquestionably were so.

She intended to have the lease renewed for her own advantage, and to assume the payment of the prior incumbrance ; and even if the recital of her prior indebtedness to the complainant for money loaned to her, were false, yet there was sufficient inducement and consideration for her to direct the bond and mortgage to be made to the complainant.

It is probable that she supposed the premises sufficient to satisfy the mortgage ; and when she suffered herself to be persuaded to direct' its execution, if there were no fraud or undue means used, she became as much indebted to the complainant, as if she had originally directed the money to be borrowed.

I must therefore regard the declaration of trust, the deed of appointment, and bond and mortgage, as duly executed.

The question then is, were they so made under the ante-nuptial deed as to charge the separate estate of the defendant other than the mortgaged premises ?

One of tlie most vexed and embarrassing questions raised in the court of chancery, is that which relates to the power of disposition by a feme covert of her separate estate.

On the one hand it has been held that a feme coveH is to be regarded in equity as a feme sole, with respect to her separate estate, with power to dispose of it at her pleasure, without the consent of her trustee, unless specially restrained by the instrument under which she acquires the estate. On the other, that she is to be considered feme sole, to the extent ■only of the power given to her by the marriage settlement: that her power of disposition is not absolute, but sub modo, to be exercised according to the mode prescribed in the instrument under which she acquires the estate.

Accordingly, in support of the first proposition, we find, that us early as the case of Norton v. Turvill, 2 P. Wms. 144, decided by the master of the rolls in seventeen hundred and twenty-three, it was held, that although a bond made by a married woman was void, and not actionable at law, yet the demand could be supported in equity, so as to charge her separate ■estate. The execution of the bond was regarded as an appointment, disposing of so much of the estate.

This case was followed by a series of decisions of the succeeding chancellors, in accordance with it, to the year seventeen hundred and ninety-three, with the single exception of that of lord Bathurst; who dismissed the bill in the case of Hulme v. Tenant, reported in 1 Bro. C. C. 16.

On a re-hearing of the case, lord Thurlow sustained the bill, which was filed to charge the separate estate of a married woman, consisting of freehold and leasehold estates conveyed to trustees, to receive the rents and profits to her separate use, and to convey the estate to such use as she should appoint by deed or will under her hand and seal, or in default of appointment, to 'her heirs and executors. The husband had borrowed the money, and he and his wife joined in two bonds to secure its payment. On an examination of the cases, his lordship concluded that the proper rule was laid down in Peacock v. Monk, 2 Vessen. 190, decided by lord Hardwicke in seventeen hundred and fifty-seven; that a feme covert acting with respect to her separate property, is competent to act in all respects as if she were feme sole.”

In Peacock v. Monk, here referred to, lord Hardwicke said, that as to personal estate, where there is an agreement between husband and wife before marriage, that the wife should have to her separate use the whole or a particular part of her personal estate, she may dispose of it by an act in her life, or by will, as she pleases, although nothing is said of the manner of disposing' of it.

In Pybus v. Smith, 3 Bro. C. C. 340, by lord Thurlow, in seventeen hundred and ninety-one, the same doctrine was held; and it was there added, that, “ if a parent wished to give a portion to his daughter in such way that she could not aliene it, he saw no reason why it could not be done. But such intention must be expressed in clear terms.”

In the year seventeen hundred and ninety-three, the court, observing the facility with which married women charged their separate estates for their husbands, with a desire to protect them, endeavored to restrain the power. And in Sockett and Wife v. Wray et al., 4 Bro. C. C. 483, sir R. Pepper Arden refused to-sanction a transfer to the husband of the property of the wife, held in trust, to pay her the interest during her lifetime, and after her decease to such person as she should by deed from tímete time or by will appoint. He said there was a restraint in the-case, and she could only dispose of it by a revocable act, a will.

The rule, after this, seemed to be unsettled and fluctuating,, when considered in the cases that follow, viz.: Hyde v. Price, 3 Vesey, 437; Milnes v. Busk, 2 Vesey, 488; Whistler v. Newman, 4 Vesey, 129; Mores v. Huish, 5 Vesey, 692; Sperling v. Rochfort, 8 Vesey, 164; Rich. v. Cockell, 9 Vesey, 369; Jones v. Harris, 9 Vesey, 497.

And the rule so remained unsettled, until lord Eldon, in, Parkes v. White, 11 Vesey, 209, declared that it was important that the question should be settled once for all; that his mind-was in great distraction on the subject: and added, “ if it be asserted that lord Thurlow, following his predecessors as far back as the doctrine can be traced, repeatedly decided upon this principle, and that the court has now a right to refuse to follow it; I am not bold enough to act upon the assertion.” He placed the case upon the principle of stare decisis, and went back to the old rule. And the cases which have since arisen in England, have followed the same rule.

In the Methodist Church v. Jacques, 3 John Chan. 113, after a very elaborate review of the English decisions, chancellor Kent concluded, that they were so floating and contradictory as to leave him at liberty to adopt what he considered the true rule of these settlements. That instead of holding that the wife is a feme sole to all intents and purposes, as to her separate estate, she ought only to bo deemed a feme sole sub modo, or to the extent of the power clearly given by the settlement.

This case was reviewed in the eourt of errors, and the decree reversed, and the English rule adopted. Mr. justice Platt, in delivering the opinion of a large majority of the court, comes to the conclusion, that thq jus disponendi of a married woman over her separate property by virtue of the deed of settlement, (by which the property was held in trust to permit her to hold and enjoy the same, and to receive the rents, not subject to the control, debts or intermeddling of her husband, but to her only use, benefit and disposal,) was absolute and entire; and that she was competent to dispose of it, not only for her own use and pleasure, but could give it to her husband in such maimer as she might have done if he had not been her husband; with the difference only, that as between husband and wife, courts will scrutinize the transaction with a jealous eye, in order to protect the wife from undue influence.

In Ewing v. Smith, 3 Dess. 447, chancellor Dessaussure, after reviewing with great care all the English authorities upon this question, says, “ The result then is, that a feme covert entitled to a separate estate in possession, remainder or reversion, is held to be a feme Bole to the extent of her separate property, and theyws disponendi follows of course.”

But the opinion of this learned chancellor shared the same fate with the opposite opinion of his erudite brother of New-York, and was reversed in the appellate court.

In Lancaster v. Doland, 1 Rawle, 231, the wife having a separate real estate for her sole use for life, with no clauses restraining her disposition of it, mortgaged it with her'husband, the mortgage reciting that it was for their joint debt. The court decided against the charge, and held that a feme covert, in respect of her separate estate, is to be deemed a feme sole only to-the extent of the power clearly given by the instrument by which the estate is settled, and has no right of disposition beyond it.

In Morgan v. Elam, 4 Yerger’s Term Rep. 375, (in eighteen hundred and thirty-three,) it was held that the power of a married woman over her separate estate does not extend beyond the plain meaning of the deed creating the estate, and she is, therefore, to bo considered a feme sole in relation to the estate only so far as the deed has expressly conferred on her the power of acting as a,feme sole. And when a particular mode or manner is pointed out for the disposition of the separate estate of a married woman, she cannot dispose of it in any other way.

Judge Green, on page 445, remarks, If these marriage settlements are supported according to their plain sense and the manifest intention of the grantor, it is a mockery to talk about, supporting a conveyance, and at the same time give it such construction as will allow a disposition to be made of the estate which it was the manifest intention of the grantor to guard against.

I am not aware that this question has ever been judicially considered in New-Jersey; and in the midst of such a conflict of opinions, it is clear that we are left to the determination of it upon what may appear to be sound principles of equity.

And I think it may safely be said, that a feme covert is a feme sole as to her separate estate, so far as to dispose of it, in. any way, not inconsistent with the terms of the instrument under which she holds. Any danger apprehended from such rule, can be avoided by words restraining the disposition, or directing the precise mode in which it may be made.

If by the deed the husband has relinquished any right which he might have acquired in the estate by the marriage, and covenanted not to intermeddle therewith, but to permit the wife to dispose of it by deed, will, or otherwise, at her pleasure, her right of disposition remains as it was before the marriage, and then she is, in respect of the estate, feme sole. But if the terms of the deed require a particular mode of disposition, then as clearly those terms must be observed; her power is limited by them, and she is feme sole sub modo, and only to the extent of the power expressed.

This brings us, necessarily, to the consideration of the ante-nuptial deed, and whether its terms have been violated by the transactions between these parties.

Upon due consideration, I am satisfied that the deed of appointment, and the bond and mortgage executed in pursuance of it, are not inconsistent with the terms of the deed of trust ; on the contrary, that the terms of that deed are sufficiently broad to cover both the rules contended for. By its express terms, the trustee covenanted among other things, to convey the said estates and property to such further and other uses, as she might, by writing under her hand and seal, direct and appoint. The defendant, by writing under hand and seal, duly executed, appointed and directed her trustee to execute the bond to the complainant, to secure the money due to him, and which she, at least, agreed to pay. As a further security, she directed him to execute a mortgage upon a certain part of her estate, which has since been exhausted, and for aught that appears, without fraud ; but most unfortunately for the defendant, at a time when property was so depreciated, that a large residue of the amount secured by the bond is unpaid.

The only question is, was the bond so executed by the trustee, a conveyance, within the terms of the deed, of so much of her separate estate as should be necessary to pay it ?

The term convey, although usually applied to real estate, is very comprehensive in its meaning, and implies a transfer, and assignment of personal property also.

By reference to the recital in the deed, and the covenant of the husband, we are enabled to see more fully in what sense the parties thereto understood it.

In the recital it appears that the parties had mutually agreed, that the intended husband should not interfere or meddle with her present or future acquired property, whether real or personal, and that the defendant should be permitted to make what disposition of the said property she might choose. ' And her intended husband covenanted that she might have the entire and absolute control over it, and dispose of the same by deed, will or otherwise at her pleasure.

The intention of the defendant, and of the person next most interested, was that she should have the absolute control of the property, and dispose of it at her pleasure. To carry out this intention, the trustee covenanted to convey the said estates and property as she should direct. The term convey must have been used as well in reference to the personal as to the real estate. And the direction to execute a bond, may in equity be regarded as an appropriation of so much of the estate as is necessary to pay it.

If there were a doubt upon this construction,the strong equity of the case would solve it. If the complainant forebore to the defendant money due to him, at her request, and as she thought for her benefit, common justice and equity demand that she should pay it.

I feel safe, therefore, in the conclusion, that pending the trust her separate estate might rightly have been charged with the amount of money due on the bond, but that she could not have been made personally liable.

The trust is now surrendered, and her separate estate held • with her general property, and no means of distinguishing it is afforded to the court; and I can see no reason why a general decree of payment should not be made.

Let the matter be referred to a master, to ascertain the amount yet due on the bond, to the end that the defendant may be decreed to pay the same, with costs.

Order accordingly.

Cited in Pentz v. Simonson, 2 Beas. 234; Oakley v. Pound, 1 M’Car. 180; Armstrong v. Ross, 5 C. E. Gr. 114; Perkins v. Elliot, 8 C. E. Gr. 531; Naylor v. Field, 5 Dutch. 287.