Adams, Judge,
delivered the opinion of the court.
The defendants, Wm. E. Taylor and Lucy Gr. Taylor, are husband and wife.
The wife joined with her husband in the execution of a promissory note for $1,900, which is held by the plaintiff.
This suit was brought to subject to the payment of this note the interest of the wife in certain real estate situated in St. Louis, the legal title to which is vested in the defendant, Charles Bobb, as trustee for her and others.
The material question is, whether the interest of Mrs. Lucy Gr. Taylor is held by the trustee for her sole and separate use, so that she could in equity bind it for the payment of the. note executed by herself and husband.
Mrs. Lucy G. Taylor was formerly Lucy G. Bobb, one of the children of the defendant, Chas. Bobb, and his wife, Mary H. Bobb, and one of the beneficiaries in the deed of settlement hereinafter referred to.
On the 23d day of January, 1845, Hannah Letcher, who afterwards married John D. Stevenson, executed a deed of settlement, whereby she conveyed in fee to the defendant, Charles Bobb, as trustee, the real estate sought to be charged with the payment of the note referred to. The language of this deed declaring the trust is as follows :
“ To have and to hold the same, with the rights, privileges, and appurtenances thereto belonging, unto him, the said [447]*447Charles Bobb, and to his heirs and assigns forever. In trust however, for the sole use, -benefit and behoof of Mary TI. Bobb (wife of said Charles Bobb), and of Charles L. Bobb, John H. Bobb and Lucy Gr. Bobb, children of said Charles Bobb, and to their heirs, executors, administrators and assigns forever. That they may have, hold and enjoy the same, with all the rights, improvements, buildings, &c., separate from said Charles Bobb, their respective husband and father, as their own sole, individual and exclusive property ; and the said Charles Bobb of the second part, trustee as aforesaid, shall hold said property for the sole benefit of the said Mary H. Bobb, wife of the said Charles Bobb, aud Charles L. Bobb, John H. Bobb, Lucy G. Bobb, and to their heirs, and shall obey their written instructions in all things relating to said property; shall rent, lease, mortgage, sell or dispose of the same, or any part thereof, for such consideration, to such person or persons, and in such manner as they, the said Mary TI. Bobb, Chai-les L. Bobb, John H. Bobb and Lucy G. Bobb. their heirs or assigns, shall direct in'writing ; and the rents, profits and moneys accruing from such disposition of said property, or any part thereof, he shall pay over to said Mary H. Bobb, Charles L. Bobb, John H. Bobb and Lucy G. Bobb, or their order ; and generally and in all things the said trustee and his heirs and assigns shall faithfully, according to the true intent and meaning hereof, discharge the trust herein created.” At the time this deed of settlement was made, Lucy G. Bobb was-the youngest child of Mary H. Bobb, and only six months old.
In the year 1853 Mary H. Bobb died, leaving as her only heirs-at-law the children mentioned in the deed of settlement, and two others subsequently born, Cora Bobb and George Bobb.
After the death of Mary H. Bobb, it was ascertained, that there had been a mistake made by the draughtsman in writing the deed of settlement, in not authorizing the sale and disposition of the property without the written consent of the beneficiaries. To correct this mistake, and effect a.resettlement' [448]*448of the property, the trustee, Charles Bobb, brought a suit in equity in the St. Louis Land Court, in the year 1854, joining the surviving beneficiaries, and Cora and George Bobb, subsequently born, children and heirs of Mary H. Bobb, as plaintiffs in such suit against Hannah Stevenson, formerly Hannah Letcher, and her husband, John I). Stevenson.
The petition filed in the Land Court assumes, that it was the intention of the deed of settlement to convey the land in dispute to Charles Bobb, as trustee, “for the sole, separate and exclusive use, benefit and behoof of the said Mary H., Charles L., John A., and Lucy G. Bobb, their heirs and assigns, forever,” &c.
The prayer of the petition asks for a judgment reforming the deed so as'to carry out the object and intention of-the parties who executed the same: “That the said trustees shall forever hold the said real estate for the sole, separate and exclusive use, benefit and behoof of said parties, who are entitled to the equitable interest as aforesaid, their heirs and assigns, with power in said trustee,” etc., and the “ moneys or proceeds arising from any sale or disposition of the same, or any part thereof, to be paid over or held by the said Charles Bobb for the sole, separate and exclusive use and benefit of said parties as aforesaid holding or entitled to the equitable interest as aforesaid.”
The Land Court rendered a judgment in conformity to the prayer of the petition. The substantial part of the judgment is in the following language :
“ That said deed be reformed, and that said mistaketin said deed be corrected as asked for in said plaintiff’s petition, so as to carry out and accomplish the said object and intention of the said parties who executed the said deed as stated in said petition ; that the title in fee simple of the said real estate be vested in the said Charles Bobb, the father of said minors, and forever held by him and his heirs, for the sole, separate and exclusive use, benefit and behoof of the said Charles L. Bobb, John H. Bobb, Lucy G. Bobb, Cora Bobb and George Bobb, their heirs and assigns, according to the [449]*449said deed as aforesaid, with full power and authority, however in the said Charles Bobb, trustee as aforesaid, to rent, lease, mortgage, sell or dispose of the said real estate, or any part thereof, for such consideration, to such person or persons, and in such manner as he, the said Charles Bobb, trustee as aforesaid, may deem best for the interest of the said parties entitled to the equitable interest in said real estate as aforesaid: and with full power and authority in the said Charles Bobb to execute and deliver such deeds and assurances, so as to pass and convey the same in fee simple; and all rents and profits arising from the same, and moneys and proceeds arising from any sale or disposition of said real estate, or any part thereof, shall be paid over or held by the said Charles Bobb for the sole, separate and exclusive use and benefit of the said parties entitled to the equitable interest as aforesaid.”
At common law the wife was not allowed to hold property separate from her husband. For most purposes they were considered as but one person — the individuality of the wife being swallowed up in that of her husband. On the other hand, courts of equity, following the doctrines of the civil law, have for a great length of time admitted, that a married woman is capable of taking and holding real or personal estate for her sole and separate use, with the incidental power of disposition. And this doctrine has gradually grown irp, and is now firmly established,'that in regard to her separate property a married woman must be treated in almost every respect as a feme sole.
The only question is, under what circumstances property settled on a married woman will be deemed a trust for her sole and exclusive use.
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Adams, Judge,
delivered the opinion of the court.
The defendants, Wm. E. Taylor and Lucy Gr. Taylor, are husband and wife.
The wife joined with her husband in the execution of a promissory note for $1,900, which is held by the plaintiff.
This suit was brought to subject to the payment of this note the interest of the wife in certain real estate situated in St. Louis, the legal title to which is vested in the defendant, Charles Bobb, as trustee for her and others.
The material question is, whether the interest of Mrs. Lucy Gr. Taylor is held by the trustee for her sole and separate use, so that she could in equity bind it for the payment of the. note executed by herself and husband.
Mrs. Lucy G. Taylor was formerly Lucy G. Bobb, one of the children of the defendant, Chas. Bobb, and his wife, Mary H. Bobb, and one of the beneficiaries in the deed of settlement hereinafter referred to.
On the 23d day of January, 1845, Hannah Letcher, who afterwards married John D. Stevenson, executed a deed of settlement, whereby she conveyed in fee to the defendant, Charles Bobb, as trustee, the real estate sought to be charged with the payment of the note referred to. The language of this deed declaring the trust is as follows :
“ To have and to hold the same, with the rights, privileges, and appurtenances thereto belonging, unto him, the said [447]*447Charles Bobb, and to his heirs and assigns forever. In trust however, for the sole use, -benefit and behoof of Mary TI. Bobb (wife of said Charles Bobb), and of Charles L. Bobb, John H. Bobb and Lucy Gr. Bobb, children of said Charles Bobb, and to their heirs, executors, administrators and assigns forever. That they may have, hold and enjoy the same, with all the rights, improvements, buildings, &c., separate from said Charles Bobb, their respective husband and father, as their own sole, individual and exclusive property ; and the said Charles Bobb of the second part, trustee as aforesaid, shall hold said property for the sole benefit of the said Mary H. Bobb, wife of the said Charles Bobb, aud Charles L. Bobb, John H. Bobb, Lucy G. Bobb, and to their heirs, and shall obey their written instructions in all things relating to said property; shall rent, lease, mortgage, sell or dispose of the same, or any part thereof, for such consideration, to such person or persons, and in such manner as they, the said Mary TI. Bobb, Chai-les L. Bobb, John H. Bobb and Lucy G. Bobb. their heirs or assigns, shall direct in'writing ; and the rents, profits and moneys accruing from such disposition of said property, or any part thereof, he shall pay over to said Mary H. Bobb, Charles L. Bobb, John H. Bobb and Lucy G. Bobb, or their order ; and generally and in all things the said trustee and his heirs and assigns shall faithfully, according to the true intent and meaning hereof, discharge the trust herein created.” At the time this deed of settlement was made, Lucy G. Bobb was-the youngest child of Mary H. Bobb, and only six months old.
In the year 1853 Mary H. Bobb died, leaving as her only heirs-at-law the children mentioned in the deed of settlement, and two others subsequently born, Cora Bobb and George Bobb.
After the death of Mary H. Bobb, it was ascertained, that there had been a mistake made by the draughtsman in writing the deed of settlement, in not authorizing the sale and disposition of the property without the written consent of the beneficiaries. To correct this mistake, and effect a.resettlement' [448]*448of the property, the trustee, Charles Bobb, brought a suit in equity in the St. Louis Land Court, in the year 1854, joining the surviving beneficiaries, and Cora and George Bobb, subsequently born, children and heirs of Mary H. Bobb, as plaintiffs in such suit against Hannah Stevenson, formerly Hannah Letcher, and her husband, John I). Stevenson.
The petition filed in the Land Court assumes, that it was the intention of the deed of settlement to convey the land in dispute to Charles Bobb, as trustee, “for the sole, separate and exclusive use, benefit and behoof of the said Mary H., Charles L., John A., and Lucy G. Bobb, their heirs and assigns, forever,” &c.
The prayer of the petition asks for a judgment reforming the deed so as'to carry out the object and intention of-the parties who executed the same: “That the said trustees shall forever hold the said real estate for the sole, separate and exclusive use, benefit and behoof of said parties, who are entitled to the equitable interest as aforesaid, their heirs and assigns, with power in said trustee,” etc., and the “ moneys or proceeds arising from any sale or disposition of the same, or any part thereof, to be paid over or held by the said Charles Bobb for the sole, separate and exclusive use and benefit of said parties as aforesaid holding or entitled to the equitable interest as aforesaid.”
The Land Court rendered a judgment in conformity to the prayer of the petition. The substantial part of the judgment is in the following language :
“ That said deed be reformed, and that said mistaketin said deed be corrected as asked for in said plaintiff’s petition, so as to carry out and accomplish the said object and intention of the said parties who executed the said deed as stated in said petition ; that the title in fee simple of the said real estate be vested in the said Charles Bobb, the father of said minors, and forever held by him and his heirs, for the sole, separate and exclusive use, benefit and behoof of the said Charles L. Bobb, John H. Bobb, Lucy G. Bobb, Cora Bobb and George Bobb, their heirs and assigns, according to the [449]*449said deed as aforesaid, with full power and authority, however in the said Charles Bobb, trustee as aforesaid, to rent, lease, mortgage, sell or dispose of the said real estate, or any part thereof, for such consideration, to such person or persons, and in such manner as he, the said Charles Bobb, trustee as aforesaid, may deem best for the interest of the said parties entitled to the equitable interest in said real estate as aforesaid: and with full power and authority in the said Charles Bobb to execute and deliver such deeds and assurances, so as to pass and convey the same in fee simple; and all rents and profits arising from the same, and moneys and proceeds arising from any sale or disposition of said real estate, or any part thereof, shall be paid over or held by the said Charles Bobb for the sole, separate and exclusive use and benefit of the said parties entitled to the equitable interest as aforesaid.”
At common law the wife was not allowed to hold property separate from her husband. For most purposes they were considered as but one person — the individuality of the wife being swallowed up in that of her husband. On the other hand, courts of equity, following the doctrines of the civil law, have for a great length of time admitted, that a married woman is capable of taking and holding real or personal estate for her sole and separate use, with the incidental power of disposition. And this doctrine has gradually grown irp, and is now firmly established,'that in regard to her separate property a married woman must be treated in almost every respect as a feme sole.
The only question is, under what circumstances property settled on a married woman will be deemed a trust for her sole and exclusive use.
The solution of this question depends upon the intention of the donor, to be gathered from the deed of settlement, or if it be by the decree of a court, from the terms of such decree-creating the trust in her favor.
Although it is a matter which, upon the authorities, involves some nice distinctions, it may be laid down as a rule [450]*450of universal acceptance, when from the terms of the document creating the trust the property is expressly or by necessary implication designed to be for her sole and exclusive use, the rights of the wife will be fully recognized and sedulously protected in equity.
The question, however, still remains: What words are sufficiently expressive of such purpose, for the purpose must clearly appear, beyond any reasonable doubt, otherwise the husband will retain his ordinary marital rights.
■ Some words and .phrases have been so often used in marriage settlements, and so frequently passed upon by the courts, that they have acquired a significance, which makes them rules of property in the interpretation of such instruments, and the courts are bound, when such words orphrases appear, to conclude the'intent to be to exclude all the marital rights of the husband.
Judge Story, in his work on Equity Jurisprudence, says: “ On the one hand, if the language of a marriage settlement made before marriage, or of a gift or bequest to a married woman after marriage, be that she is to have the property ‘to her sole use or disposal,’ or ‘to her separate use or disposal,’ or ‘to her sole use and benefit,’ or ‘for her own use and at her own disposal,’ or ‘to her own use during her life independent of her husband,’ or ‘that she shall enjoy and receive the issues and profits,’ or ‘that it is an allowance as for pin-money,’ (eo nomine); in all these cases the marital rights of the husband will be excluded .and the property will be for her exclusive use. ******* So a bequest to a married woman and her infant daughter, to be equally divided between them, share and share alike, ‘for their own use and benefit, independent of any other person,’ will be construed to mean ‘for their sole and separate use.’ So a bequest to a married woman, ‘for her benefit, independent of the control of her husband,’ will receive the like construction. In all these cases the words manifest an unequivocal intent to exclude the power and marital rights of the bus-band.” (2 Story’s Eq., § 1382.)
[451]*451■ A distinction was formerly taken between settlements on married and unmarried women. It was at one time held in England, that property could not be secured to the separate use of a feme sole, so as to exclude the marital rights of a future husband. But this distinction has long since been exploded. If the intention appears in the deed of settlement to exclude marital rights, the husband must lake the property as he finds it, protected from any invasion by him, and subject to the separate control of his wife. (2 Story’s Eq., § 1384, and authorities there cited.)
From the doctrines there laid down it is plain to my mind that the language used in the deed of settlement, not only created a separate estate in Mrs. Mary H. Bobb, but also in her then infant daughter, Lucy Gr. Bobb.
The phrase used is precisely the same as some of those quoted from Judge Story, which have become rules of property in the creation of separate estates for married women. It can make no difference, that the same language was applied to the males. So far as the males are concerned it can have no meaning, as their individuality remains whether married or unmarried. But when applied to Lucy Gr. Bobb, as it was, it created a separate trust in her behalf in anticipation, and protected her interest from the marital rights of her future husband, ¥m. F. Taylor.
It seems that this was the understanding of all the parties to the deed of settlement, for after the death of Mrs. Mary H. Bobb, when, application was made to the Land Court, as a court of equity, to reform the deed and to have the property re-settled by a decree of that court, the petition declares, that the intention was to settle the property on Lucy Gr. Bobb, for her sole and separate use, and the petition asks for a decree so as to vest the title in the trustee for the sole, separate and exclusive use and behoof of the parties entitled to the equitable interest in the same. This decree was accordingly made, and the language used, beyond any doubt, created a separate trust in the defendant, Lucy Gr. Taylor.
The court had complete jurisdiction over the persons and [452]*452property in question, and it is no matter whether the primary object was to create a separate estate, or to modify the deed in other respects. It is sufficient, that the court acted in the premises, and entered a decree which remains in full force, whereby a separate estate was secured to the female beneficiaries. So, whether we look to the deed of settlement, or to the decree made long after the death of Mrs. Mary H. Bobb, the conclusion is inevitable, that- the interest .of the defendant, Mrs. Lucy G. Taylor, in this real estate, is secured to her for her sole and separate use. And as she thus had the exclusive control of her property when she executed the note held by the plaintiff, she thereby bound it for its payment.
In my opinion the judgment of the Circuit Court, which .was for the defendants, ought to be reversed, and the cause remanded.
Reversed and remanded.
Judges Tories and Wagner concur; Judge Sherwood dissents, and Judge Napton did not sit.