MacConnell v. Lindsay

19 A. 306, 131 Pa. 476, 1890 Pa. LEXIS 1134

• Court: Supreme Court of Pennsylvania
• Decided: February 24, 1890
• Docket: No. 260
• Status: Published

Opinion

Opinion,

Mr. Justice Clark:

At common law a married woman could not hold and enjoy property, real or personal, separate from and independent of her husband. The right of the wife to take property to her separate use originated in equity, and, in Pennsylvania, this, in addition to her statutory right, is still enforced upon principles of equity, which have been recognized since the reign of Elizabeth. This separate estate of the wife was sustained in equity, in order that it might be possible for the husband, or for any other persons, desiring to make a settlement upon the wife, to so secure their bounty that it would not be subject either to the improvidence or to the control of the husband: Rennie v. Ritchie, 12 Cl. & F. 234. The general doctrine upon which this separate estate of the wife rests in Pennsylvania is peculiar; its peculiarity being found in the particular purpose intended to be accomplished. The rule in England and in most of the states of the Union has been to treat the wife as the absolute owner, possessing the jus disponendi and the incidental power of charging the estate with debts, created with reference to and upon the faith and credit of the estate, as if she were feme-sole: Taylor v. Meads, 34 Law J. Ch. 203; Picard v. Hine, L. R. 5 Ch. 274. See, also, Bispham’s Eq., § 101, and cases there cited. This doctrine has been somewhat modified by recent decisions, and to some extent is controlled by statute. Its effect has also been restricted in practice by inserting a clause against anticipation, which imposed a certain restraint upon alienation, but the general doctrine is still recognized.

In Pennsylvania, however, and in some of the states, the English rule was not adhered to. The first departure from it was in Ewing v. Smith, 3 Des. Eq. 417, which was followed in this state by Lancaster v. Dolan, 1 R. 231, where it was held that a feme-covert is, in respect to her separate estate, to be deemed a feme-sole only to the extent of the power clearly given her by the instrument by which the estate is settled, and has no right of disposition beyond that. “ Nothing in the law,” says Chief Justice Gibson, in the case just cited, “ is more to be deprecated than those decisions in which the right of the cestui que trust to dispose of his estate has been recognized. Every attempt to secure a provision to a spendthrift child must prove abortive while the trustees are bound to follow any disposition of it which he may make. It is still more unfortunate that, as regards their separate estates, femes-covert have been regarded in equity as femes-sole. It has been justly remarked that, if the principle be pushed to its extent, a married woman who has trustees will be infinitely worse protected than if she were left to her legal rights.” “ The object,” says the same learned judge, in Thomas v. Folwell, 2 Wh. 11, “is not so much to give her the dominion of the feme-sole, which every man of experience knows would, in a countless number of instances, defeat the principal intent, as to withdraw the estate from the dominion of the husband; and we might expect it to occur to those who are called to the interpretation of these instruments that the surest way to accomplish this would be to restrain the power of both. The donor has doubtless capacity to remove by the instrumentality of a trust the disability anndxed to coverture by the common law, so far, even, as to give the wife the power of a feme-sole, and there may be examples of feminine firmness that would render it safe in particular instances to do so; but it would expose a woman of ordinary resolution to perils from which she would be protected by the common law, the practical wisdom of whose maxims, matured as they are by the experience of a thousand years, no thoroughbred lawyer will hesitate to admit. We therefore hold it to be the settled law of Pennsylvania that, instead of having every power from which she is not negatively debarred in the conveyance., she shall be deemed to have none but what is positively given or reserved to her.” To the same effect are Wallace v. Coston, 9 W. 137; Wright v. Brown, 44 Pa. 224; and McMullin v. Beatty, 56 Pa. 389. The rule is now well settled that neither the feme-covert, nor her husband, nor both together, have any powers over her separate estate, except what are given by the trust instrument, and that even these must be strictly construed.

There can be no question, of course, as to the right of the donor to invest the wife with the full powers of a feme-sole, if he chooses so to do ; and whén this intention is clearly manifested it must prevail. The principle is to be applied, not as a rule of property, but as a rule of construction only. Whilst recent statutory provisions have, perhaps, to some extent, circumscribed the necessities which originally called for the intervention of equity, it is plain, we think, that the precise purpose which equity bad in view is yet unsecured by statute; and there seems to be nothing in the statutory provisions to indicate that the legislature intended to abrogate the rule or dispense with the estate which, under our equity practice, has been so long recognized as a proper protection for a married woman, not only against the power and persuasions of her husband, but against his and her own improvidence.

Prior to the passage of the act of April 11, 1848, P. L. 536, a married woman could have no separate estate of her owu at law; such an estate existed only in equity. If the wife’s title was legal, there could be no separate use, for the marital rights of the husband were necessarily incidental to the legal estate: Todd’s App.,24 Pa. 429. In the case of an equitable separate estate, the legal title either was, or was assumed to be, held in trust for her; and if in the instrument creating the estate no trustee was named, equity supplied a trustee in the person of her husband. But under the act of 1848 she was invested with a separate estate at law; all the property of a single woman continued to be her property, as fully after marriage as before, and all accruing to her during coverture was owned, used, and enjoyed by her as her own separate property. She owned, used, and enjoyed it, not as a feme-sole, as was said in Cummings’ App., 11 Pa. 275, but as a feme-covert, the same as if it had been settled to her use, with such incidental and restrictive powers of alienation, however, as are conferred by the statute: Pettit v. Fretz, 33 Pa. 118. But the provisions of the act of 1848 did radically change her rights at law. By the common law, the husband succeeded to her dominion over her personal property and her dioses in action; by reducing them into possession, they became absolutely his. He became entitled, also, to the use and enjoyment of her real estate, owning its rents, issues, and profits. The consequence was that all the property she brought to her husband, except a remainder in her real estate upon his death, was liable to be seized and sold at the suit of his creditors. Instances had occurred in which a wife, who had brought property to her husband, had seen it all swept away, and herself left to destitution, through the improvidence, misfortune, or even vice of her husband. It had perhaps gone to pay debts which he had contracted before the marriage. Such cases appealed strongly to the sympathies of the legislature, and were doubtless the moving cause of tbe enactment of April 11, 1848. Here was the mischief to be remedied, and the statute is the remedy provided. In Haines v. Ellis, 24 Pa. 253, which was a case arising after the act of 1848, a conveyance was made to a married woman, her heirs and assigns, “ to and for the only, sole, separate, and proper use and behoof of herself, her heirs and assigns, forever; ” it was held whether this created an equitable separate estate or not was immaterial, as, in any event, in the absence of any restriction in the deed, the husband and wife, under the act of 1848, had full power and right to convey. But in a more recent case, Penna. Co. v. Foster, 35 Pa. 134, it was most explicitly declared that the act of April 11, 1848, did not enable a married woman to dispose of property held by a trustee for her separate use, and that over such property, notwithstanding the act of 1848, she had no power not expressed in the instrument by which the trust was created. In the course of the opinion filed, this court said: “Is this equity principle affected or set aside by the act of 11th April, 1848, § 6? We think not, for the kind of separate estate thereby created is a legal one, and totally distinct from the equitable separate estate created by the tripartite agreement. The act creates a new bind of separate estate, without abolishing the old one. In providing a mode of disposing of her new legal .acquisitions of separate estate, it does not include those equitable estates that are acquired by -others in trust for her separate use. ” The case just cited was followed by Wright v. Brown, 44 Pa. 224, where the whole subject was fully discussed in an opinion by Mr. Justice Strong, and Haines v. Ellis, supra, was expressly and in terms overruled. The learned justice said: “ Certainly, however, unless the act of 1848 caused a change, a deed to a married woman for her separate use does create a trust, though no trustee be named, and it is restrictive of the wife’s power to sell or mortgage. On that subject, silence is prohibition; and it is plain that the act of 1848 has no reference to the form or effect of a deed or will. It touches only the effects of the marriage relation. It does not undertake to say that what was a trust before its passage is a trust no longer, or .to make that a legal estate which before was merely equitable. .The truth is, Haines v. Ellis is not consistent with the doctrine asserted in the later case, Penna. Co. v. Foster, 11 Cas. 134. There is no substantial difference between a trust implied from the separate nature of the use declared, and one expressly given in trust for a separate use; and if, as was held in the case in 11 Cas. the latter is not affected by the act of 1848, the former cannot be.” That the rule in Wright v. Brown, supra, has been steadily maintained, appears upon reference to Maurer’s App., 86 Pa. 380, and also to the very late case of Twining’s App., 97 Pa. 36.

The act of June 3, 1887, P. L. 332, provides in substance, inter alia, that marriage shall not be held to impose any disability or incapacity on a married woman, as to the acquisition, ownership, possession, control, use, or disposition of property of any kind, in any trade or business in which she may engage, or in the enjoyment or improvement of her separate estate, real or personal; but that she shall be capable of entering into and rendering herself liable for any contract or obligation relating to the ownership, disposition, enjoyment, or improvement thereof; that every married woman shall have the same right to acquire, hold, possess, improve, control, use, or dispose of her property, real or personal, in possession or expectancy, in the same manner as if she were a feme-sole, without the intervention of any trustee, with all the rights and liabilities incidental thereto, with certain exceptions, as if she were not married; and that property of every kind, owned, acquired, or earned by a woman before or during her marriage, shall belong to her, and not to her husband or his creditors. Further, that she may make, execute, and deliver leases of her property, real and personal, in person or by attorney, but in any mortgage or conveyance of her real estate she must be joined by her husband.

Thus it will be seen that whilst the effect of the act of 1848 was to deprive the husband of certain common law rights, which accrued to him by marriage, in his wife’s property, the act of 1887 was intended to perfect the wife’s means and facilities for enjoyment of the property, the title to which by the act of 1848 was secured to her from her husband and his creditors. The act was passed for the benefit of the wife, and was designed to enable her to improve and enjoy her own estate free from the interference of her husband, or any one claiming under him. It should, therefore, receive such reasonable and liberal construction as will promote the purpose of its enactment. But it is plain that its provisions, like those of the act of 1848, apply to the separate estate at law of the married woman, as distinguished from the separate estate which has always existed in equity only. The owner of real estate, so long as he contravenes no rule of law or of public policy, may undoubtedly make such a settlement of it upon another as he chooses, and there is nothing in the act of 1887 which would deny the right of the donor to set up a trust for the maintenance and protection of a married woman, securing his bounty as heretofore. The passage of these acts does not affect the right of a married woman to a settlement of her estate upon herself. They are an enlargement, and not a diminution of her rights. In other states it has been held that the jurisdiction of courts of equity over the property and proprietary rights of married women is not taken away by statutes of this character, but the equity powers of the court may still be invoked, where it is necessary to secure their separate property to their use, according to the intention of the statutes, or the intention of the donors of such property: Colvin v. Currier, 22 Barb. 371; Mitchell v. Otey, 23 Miss. 236; Richardson v. Stodder, 100 Mass. 528; Sampley v. Watson, 43 Ala. 377. See, also, Perry on Trusts, § 677. The property embraced in a settlement is only the property of the wife under the terms of the settlement, upon which the act of 1887 can have no effect whatever. The incapacity of a married woman to dispose of property held to her separate use, without express power of disposition, does not depend upon her disabilities at common law, but upon the terms of the settlement itself ; and, as the acts of 1848 and 1887 were only intended to remove the former, they can, of course, have no effect upon the latter.

Nor has either the act of 1848 or the act of 1887, nor both of them together, dispensed with the necessity which orginally gave rise to this equity. Heretofore a married woman was protected from her own improvidence, as well as the improvidence of her husband, by her disabilities ; and, as these disabilities are.now to a great extent removed, the necessity is increased, rather than diminished. Her disabilities, her want of power to yield to her husband’s solicitations, or to give way to her own sympathies, have always been supposed to afford her the highest protection. Complete protection, as the law now stands, therefore, is found only in a trust for her separate use. We are clearly of opinion, therefore, that since the act of 1887 a settlement of land in trust may still be made upon a married woman for her separate use, and subject to the same rules of equity as heretofore.

But, assuming all that has been said, it is contended that the acts of 1848 and 1887, taken together, are not without effect in the construction of the instrument upon which the settlement depends; that, since by the act of 1848 the property of a married woman is owned by her “ after marriage as before,” and is owned, used, and enjoyed by her “ as her own separate property,” free from the debts and liabilities of her husband, and by the act of 1887, she has the right to acquire, improve, or dispose of her property “ as if she were a feme sole,” and property of every kind owned, acquired, or earned by her, before or during marriage, belongs “ to her, and not to her husband, or his creditors,” more particularity of expression is now required than formerly in Pennsylvania to create what is known as a separate use trust, as distinguished from a separate use, under the statute. But if it be true, as we have already shown, that these acts relate only to estates created by and existing under the law, and have no reference whatever to the separate equitable estate of a married woman, we cannot see how the language of these acts can in any way be applied in the construction of instruments which, under the numerous decisions of this court, have been held to create a separate estate recognized only in equity. We cannot say that what was a trust before is a trust no longer, or make that a legal estate which, according to a 'well-established rule of property, has always heretofore been held to be an equitable separate estate only.

Eveline Gross died after the passage of the act of June 3, 1887. Her last will and testament was probated September 4, 1888. By her will she provided, inter alia, as follows: “I hereby bequeath and devise to my said adopted daughter, Matilda Gross MacConnell, all the rest and residue of my estate, real, personal, and mixed, absolutely and in fee-simple, and including therein any and all legacies which may lapse by reason of the decease of any beneficiary or otherwise; and it is my will that the said Matilda Gross MacConnell shall take and hold the property hereby given to her free from the control of her present or future husband, and without any liability for any debts, liabilities, or engagements of such husband, but wholly for her own use and benefit, and subject to her own control.” Embraced in this residue was the lot of ground situate at the northeast corner of Conrad and Harriet streets, in the Twentieth ward of the city of Pittsburgh, which Matilda Gross MacConnell subsequently sold to Reese Lindsay. The words of this will were, without doubt, according to all the cases, sufficient to establish a valid separate use trust in Matilda Gross MacConnell. We do not understand this to be seriously disputed. The instrument clearly speaks the donor’s intention to bar the husband’s marital rights; it is á conveyance wholly to her own use and benefit, and subject to her own control. It is immaterial that no trustee was appointed, for equity will supply a trustee; nor is it of any consequence that no active duties were imposed, for the creation and existence of a separate use is, in equity, sufficient to support the trust against the effect of the statute of uses. No particular words have ever been held essential or indispensable for this purpose; it is enough that the expression of the conveyance should be such as to clearly indicate the intention of the donor.

The judgment is reversed, and judgment is now entered in favor of the defendant, on the case stated, for the sum of $100, with interest from the 19th June, 1889, and costs.