Cooke v. Husbands

Tuck, J., delivered the opinion of this court. As we understand the English cases, the doctrine was established before the American Revolution, that in equity a married woman is tobe treated as a feme sole, in respect to her separate property; and that she may dispose of it, unless restrained by the instrument creating the estate. There is to be found some diversity among’the cases since that time, and, especially, as to what amounts to restraint upon alienation. In this country the decisions have not been uniform, some following the English doctrine, and others denying to the wife any power over the subject not authorised by the deed.

For examination of these questions and the authorities, see 2 Roper on Husband & Wife, ch. 19, 20. 1 Sugden on Powers, ch. 4, sec. 1. Hill on Trustees, 633, (Ed. of 1857.) McQueen on Husband & Wife, 294. Clancy on Husband & Wife, chaps. 5, 6, 7, 8. White & Tudor’s Cases in Equity, 324, (Hulme vs. Tenant.) 3 Johns.

Ch. Rep., 77 ; and same case on appeal in 17 Johns. Rep., 548. Story’s Eq., sec. 1390.

Adam’s Equity, 44, 45. in Maryland the law is settled, that whore a mode of alienation or of appointment is provided, it operates as a negation of any other mode, and is a paramount law governing and controlling every contract in relation to it. Lowry vs. Tiernan, 2 H. & G., 34. Tiernan vs. Poor, 1 G. & J., 216 . Brundige vs. Poor, 2 G. & J., 1 .

Miller vs. Williamson, 5 Md. Rep., 219. But it lias never been decided as far as we can discover, whether a feme covert may or may not dispose of her separate estate, whore the deed is silent on the subject. We may consider it as unsettled as late as 1849, when the Court of Appeals declined examining the question of a feme covert’s jus disponendi of her estate, uwhere the instrument un ⁵⁰⁴ der which she held conferred no such power in terms.” Smith vs. Morgan, 8 Gill, 139 . The point was not determined in Miller vs. Williamson, 5 Md. Rep., 219, and that case is not to be considered as authority on this precise question, the observations of the court having been made, with reference to the will then under consideration.

See also 5 Md. Rep., 134 . The late Chancellor, in the cases of Tarr vs. Williams and Williams vs. Donaldson, 4 Md. Ch. Dec., 68 and 414, expressed his concurrence with Chancellor Kent’s views, as set forth in the case of The Methodist Church vs. Jaques, 3 Johns. Ch.

Rep., 77, and also with those of Chief Justice Gibson, in Thomas vs. Folwell, 2 Whart., 11. Itmust be observed, that in these cases, the question we are now considering was not necessary to the decision, for in each of the deeds there was a mode of appointment prescribed, and it was sought to appoint or alienate in a different manner. Chief Justice Spencer, in reviewing Chancellor Kent’s opinion, ( 17 Johns., 578 ,) declared, that “from the year 1740 to 1793, (with the single exception of the opinion of Lord Bathurst, in Hulme vs. Tenant, which occurred in 1778, and in which a rehearing was granted by Lord Thurlow, and the opinion reversed,) there was an unbroken current of decisions, that a feme covert, with respect to her separate estate, is to be regarded in equity as a feme sole, and may dispose of her property without the consent or concurrence of her trustee, unless especially restrained by the instrument under which she acquires her separate estate.” And Chancellor Kent himself, admits the weight of authority to be against him. Indeed, he concedes that an intent may be deduced, where the deed does not speak, for in his opinion he says: “Perhaps, we may say, that if the instrument be silent as to the mode of exercising the power of appointment or disposition, it intended to leave it at large, to the discretion and necessities of the wife, and this is the most that can be inferred.” And he very clearly places his decree on the circumstance, that there was a mode of appointment prescribed in the instrument, and that no other could be resorted to.

But if we are to take these eminent jurists, as having declared that power does not exist unless it be conferred by ⁵⁰⁵ the deed, it may be said, that while there is much force in the reasoning employed by them, on the general subject, when considered with reference to the objects of such deeds, and the circumstances under which, generally, they are executed, as stated by them, very distinguished judges have held the contrary doctrine, and supported their judgments with as much ability, if it be conceded that they have based their conclusions on a correct understanding of the policy and purposes of such settlements. We think that there is a principle underlying this branch of jurisprudence which should not be disregarded, and that is, that the right to dispose accompanies the ownership of property, which cannot be fettered by intendment, however this may be done by express words; and as these settlements are creatures of equity, designed to confer rights on married women not enjoyed at law, and may be made to express what the parties intend, the feme covert should be considered as having the power of disposal, unless a different intent be manifested by the instrument. It cannot be maintained as a general proposition, universally true, ‘That these settlements are intended to protect the wife’s weakness against her husband’s power, and her maintenance against his dissipation,” as assumed in 3 Johns. Ch.

Rep., 113 , for many of them are made where the utmost confidence is reposed in the. husband; the solo object being to protect the wife and family against the consequence of his misfortune or losses in business, by exempting the property from liability for his present as well as future debts. We are not to assume, that husbands will be constantly endeavoring to wrest their wives’ property from them, and devote it to their own uses. It is more reasonable to suppose, that they will guard and protect her rights, and act in reference to her separate estate, for the interest of all concerned in the trust.. That cases of hardship and wrong have occurred there can be no doubt, but, in a large majority, we think the purposes of the settlements have been faithfully fulfilled, by leaving to the wife the control of the property, under the advice of the trustee and her friends; nay, indeed, of the husband himself.

It is not a conclusion of law, that when prop ⁵⁰⁶ erty is settled on a married woman or on a feme sole in contemplation of marriage, the settler designs she shall never dispose of it. It may happen, that her interest will be promoted by a change of investment, and this is often provided for. We incline to the opinion, that in most of the instances in which the English doctrine has been departed from, the judgments were pronounced under circumstances of extreme hardship, bending the law to meet emergencies and prevent consequences not apprehended, and therefore not provided against at the creation of the trusts. In answer to many of the considerations urged against this view of the law, it may be said, that if the parties making the settlement intend to tie up the property in the wife’s hands, they may use apt and proper limitations, and that where they have not done so, it must be supposed they intended to leave it at large, to the discretion and necessities of the wife, as a feme sole, acting under the advice of those on whom oshe may rely.

Therefore, following the decisions, which, under our institutions it is the duty of this court to respect as authority, we are of opinion, that a feme covert may act in reference to her separate estate as a feme sole, where the settlement contains no limitations on the subject, on the principle that the jus disponendi accompanies the property, unless restrained in terms, or by the manifest intention of the instrument. Upon considering the will before us, and collating its several parts, we are of opinion that the testator designed to limit the power of disposal to the rents and profits arising from the property devised to the trustees, and that his two nieces had no authority to unite in a conveyance of the fee by the trustee, even conceding that, as to them, the forms prescribed by.the act of 1830, ch. 164, were not necessary; upon which we express no opinion. It has been decided, that if the interest of a fund or the profits of an estate be given by will, the devisee will take the fund or estate absolutely. This is generally the construction, but. it does not obtain where the will shows a different intent, for-the testator’s intention, to be gathered from the whole will, must have effect.

Cassilly vs. Meyer, 4 Md. Rep., 1 . Magruder vs. Peter, 4 G. & J., 323 . In the present case, ⁵⁰⁷ only the rents and profits are given to these nieces, with limitations over; and upon the happening of contingencies set out in the will, the estate is disposed of by another declaration of trust, upon the supposition, that a time would arrive when neither the nieces nor their descendants could enjoy the rents and profits. If the rents had been in terms limited to them for life, the point would have been clear of difficulty, on the authority of Lowry vs. Tiernan, 2 H. & G., 34, and numerous other decisions.

The result must bo the same, if that intent can be collected from the will. It declares what the trustees are to do with the rents, “from and immediately after the death” of the nieces, not adding, in case they shall not have appointed or disposed of the rents in their lifetime, or equivalent words, but showing that the fee was to remain in the trustees, to gratify other purposes declared by the testator, which looked beyond a failure of issue of both nieces. In the case of Ijowry vs. Tieman, the court remarked upon the circumstance, that no power had been reserved to the wife over the principal, except by last will and testament, and then only in a certain event. Here no power over the estate is given at all, either absolutely or conditionally; the power relates to the rents and profits only.

It was also said in that